The Islamic  Law and the Alcoholics

Wine-drinking is proved on the testimony of two witnesses; and also by confession once made.  It is seconded from Abu Yusuf, that two confessions are requisite.  But it is to be observed that the evidence of woman against men is not admissible in wine-drinking, because the evidence of female is liable to variation, and they may also be suspected of absence of mind, or forgetfulness.

If a person makes confession to the drinking of wine, or another intoxicating liquor, and afterwards retracts from such confession, punishment is not to be inflicted upon him, as the punishment of wine drinking is purely a right of Allah.

If a Muslim drinks wine and he is seized whilst his breath yet smells of the wine, or he is brought before the Qadi whilst he is yet intoxicated therewith and witnesses give evidence that “he has drunk wine “, punishment for drinking wine is to be inflicted upon him; and in the same manner, punishment incurred by him when he makes confession of having drunk wine, whilst his breath yet retains the smell, because the offence of wine-drinking is proved upon him and Takadim,  or distance of time, does not appear, since the flavor of the wine still remains.  This doctrine is originally founded upon a precept of the Holy Prophet (peace and blessings of Allah be upon him), “Whoever drinks of wine, let hm suffer correction by scourging, as often as he drinks thereof.”

If a man makes confession of having drunk wine, after the smell has ceased, in this case punishment is not to be inflicted.  Imam Muhammad, however, maintains that it is to be inflicted.  The same difference of opinion obtains in a case where witnesses bear evidence against a man that “he has drunk wine “ after the smell has ceased.  The reason of this diversity of opinion is that Takadim, or lapse of time, forbids the reception of evidence in a case of wine drinking, according to all doctors, but Imam Muhammad fixes the limitation of Takadim, in wine-drinking, to a certain time, namely, one month (according to the most approved authorities), he conceiving an analogy between this, and case of whoredom,  because delay is established by lapse of time, and not by the ceasing of a smell.  The existence or non-existence of a smell carries no weight, as there are other things the flavour of which resembles that of wine.  According to the two Elders, on the contrary, Takadim is established by the non-existence or departure of the smell,  for two reasons: First, a decree of ‘Abdullah ibn Mas’ud, who, when certain persons brought before him a man charged with drinking wine, directed that “they should examine his breath and that if any flavour of wine was discovered, punishment should then be inflicted upon him.” Secondly, the existence of the effect (namely the smell), is an irrefutable proof of wine having been lately drunk.  And so to what Imam Muhammad advances, that “there are other things the flavour of which resembles that of wine”, it may be replied that the difference between the smell of wine, and other articles, may be easily distinguished by one who is possessed of judgment and discrement, nor can any but ignorant persons by doubtful concerning it.  Thus, according to Imam Muhammad, confession of wine-drinking is not rendered  ineffectual by the distance of time, in the like manner as (according to him) confession of whoredom is not rendered ineffectual by distance of time, agreeably to what was before advanced, with the two elders, on the contrary, punishment for wine-drinking is not to be inflicted but on the condition that the smell still remain because Ibn Mas’d stipulated that condition, as before stated.

            If a witness seizes a drinker of wine at a time when he is intoxicated, or whilst he still retains the smell of the liquor, and carry him to a city where there is a Qadi, and in the meantime the flavor or the intoxication ceases, before they arrive at the seat of justice, yet in this case punishment for wine-drinking is to be inflicted upon that person,  according to all the Jurists, because there is an excuse for the delay, analogous to that which si created by distance of place in a charge of whoredom; and the witness are not suspected where such excuse exists.

            If the smell of wine be discovered upon a person, or he should vomit wine yet if witnesses have not actually seen him drinking it, punishment is not incurred, because the smell alone leads but to a very uncertain conclusion, as this appearance may proceed either from the person having drunk wine, or from his having sat among wine-drinkers, from whom he may have contracted the smell; and it is also possible that wine may have been administered to him by force or menaces, in which case no punishment is incurred.

            Punishment for wine-drinking is not incurred due to intoxication alone, unless it be known that the person has been intoxicated by the voluntary drinking of wine because men are sometimes inebriated by the use of articles which are permitted such as mare’s milk;  and men may be sometimes compelled to drink wine, which is not a punishable offence, when thus committed by compulsion.

            The degree of intoxication which occasions punishment amounts to this, -that the person so intoxicated be not able to distinguish what is said to him in any shape; nor to know a man from a woman.  The compiler of the Hidaya observes that this is the doctrine of Imam Abu Hanifa.  The two disciples have said that the degree of drunkenness which induces punishment is sufficiently found in the intoxicated person speaking confusedly and indistinctly, as it is from this that drunkenness is generally understood.  Many jurists agree with the two disciples on this point.  The argument of Imam Abu Hanifa is that the drinking of wine is among the causes of punishment,  wherefore it si to be noticed only in the excess; for in acts which are causes of punishment the excess of them only is regarded, on account of seeking a pretext for the purpose of averting punishment; and excess of drunkenness appears in the intoxication so far over powering the reasons not to leave the person a capacity of distinguishing one object form another (in ascertaining the illegality of intoxication produced by drinking any liquor other than wine, regards it had to  what the two disciples maintain concerning the punishment for drunkenness produced by wine-drinking).  Imam Shafi’i, in the punishment for drunkenness, has regard to the appearance of the effect produced by the wine, in the intoxicated person’s walking, or other actions, by his staggering or turning giddy when he attempts to walk: but our doctors say that  such effect may proceed from different causes, as they sometimes do not attend drunkenness, and sometimes occur in other cases(such as weakness) wherefore this species of effect is not regarded.

            If a person, during a fit of intoxication, should make confession of anything which occasions punishment (such as whoredom), no punishment is to be inflicted upon him, as in such a confession,  there is apprehension of falsehood, and this apprehension is to be regarded so far as to evert punishment, since punishment (Hadd) is purely a right of Allah. It is otherwise, however, in punishment for slander; for if a man in a state of intoxication were to make confession of slander, punishment for slander must be decreed upon him, because this is not purely a right of Allah, but a right of the individual too, and therefore, a state of drunkenness is here the same as a state of sobriety, for the sake  of inflicting penalty, in the same manner as in all other matters, such as divorce, manumission, and so forth.

            If a man, during intoxication, should apostatize form the Faith, his wife is not thereby divorced from him because infidelity depends upon what may be a person’s belief, and that cannot be ascertained during drunkenness.

  The punishment of a free person, for drinking wine or other intoxicating liquor, is eighty stripes (and to a slave forty stripes) and those eighty stripes are to be inflicted in every respect under the same rules and restrictions as in the case of fornication.  The wine-drinker must be striped naked to receive the punishment.

            How and in what manner the punishment of flogging is to be awarded has been made clear in Islam.  We give below some of its details:

1.                  The punishment must be administered with a stick which has no knots upon it; and that the stripes must be applied in moderation, that is to say, neither with severity nor yet with too much leniency.  Hadrat ‘Ali (Allah be pleased with him), when he was about to inflict punishment, used to smooth off form the rod any knots which might happen to be upon it, as too much severity on the one hand too much leniency is inadequate to the design of punishment.  The stripe of flog should, therefore, be neither too heavy or hard nor too heavy or hard nor too tender or delicate.  It should be just average both in weight and roughness.  And when punishment is to be inflicted on any person, it is necessary that he be striped naked; that is to say, that all the clothes be taken off, except the girdle because the punishment in this way is administered with the great effect.

2.                  It is requisite that the eighty stripes (and in the case of slave forty stripes) be given not all upon the same part of member (limb) of the person upon whom punishment is inflicted, but upon different parts, as it might otherwise be attended with danger to life ; and none of the stripes must be inflicted on the  face,  the  head  or the privities.   The Holy Prophet (peace and blessings of Allah be upon him) once said to the executioner: “In inflicting the punishment, take care not to strike the Face, the Head, or the privities.”

3.                  The Holy Qir’an uses the word Jald for flogging which is derived from Jild (the skin).  The jurists have therefore, stated that flogging should be such as does not inflict wounds on the body beneath the skin.

4.                  The executioner should strike neither with full force nor so lightly as not to do any serious harm to the offender.

5.                   The flogging should be avoided at the times of intense heat or extreme cold.  One should be flogged in the sunshine during the winter season and in shade during the hot hours of the summer season.

6.                  It is not proper to flog on bare back after having tied the offender to the stake.

7.                  It is permissible to distribute the flogging on some days keeping in view the physical condition of the criminal, but it is perferable to award punishment at one time.

8.                  Flogging should not be done by a cruel executioner but by Scholars who are well versed in the Islamic Law so that they should award punishment according to the letter and spirit of the Law.