The Shari'a and the War on Drugs: Public Interest as a Jurisprudential Tool
Earlier today I was reading through some fatawa of the major Wahhabi clerics of Saudi (really trying to find something on the age of puberty, but not coming up with much), and I came across one very interesting fatwa issued in about 1987 (1408 Hijri) concerning the use of drugs. Unsurprisingly, the major clerics got together, decided that drugs were a serious problem in the Kingdom, and issued some pretty serious crimes to dealers and smugglers (death to smugglers and potentially death to repeat dealers). Elsewhere in response to a question they suggest that the police who die in drug raids are martyrs in God's cause.
One problem--drugs aren't part of the sharia. They were not a serious classical concern, and there isn't a hadith of Muhammad or a verse of the Qur'an that can really be extended to cover them. I suppose you could say that the prohibition on date wine may be extended to cover mood altering substances, but extended this far, I'm pretty sure you'd lose most of those who take analogy as a form of legal reasoning seriously. What drugs would then count and what ones would not? How mood altering would it have to be (caffeine? marijuana? LSD?) What mental health conditions demand an exception? (Zoloft for depression? If I'm upset, can I pop ectasy?) I don't think the analogy could be made to work, it's extended so far as to be impossible. Intoxicants, sure. But anything that affects mood starts to become impossible I think. Yet they are taking a man's life, surely they need something to rely on.
Enter then maslaha, or public interest. This is the reed upon which these scholars lay so much weight. They recite how drugs are a menace to society, a threat to its public interest, and lead to crime and corruption, including car accidents, rape, and fights in a manner that is likely to spread chaos. They make a person think he is, in their words, "powerful over all things" (an attribute of God in the Qur'an) in addition. They don't take this very far, because if they did, then you'd have to kill every Muslim user for apostasy, but instead they stick it in to the description of the public interest to add flavor, a whiff of apostasy. They conclude with suggestions that those who are so dangerous to the public interest through the spread of poisons like this may be killed (through a specious reference to Ibn Taymiyya and an even more specious one to the Prophet).
Is this a problem? In one way, no. Maslaha seems to be a valid means of deciding something, particularly when foundational text is silent. The usul books, on what are valid sources of Islamic law, tend to downplay it, but as Mohammad Fadel has shown in his work on the Maliki madhab, the furu', the details of the law itself, often seem based more on it than on the main sources, Qur'an and hadith. If that was the case then, then nothing wrong with that now, surely the public needs protections from things and we can't be ridiculous and think all public menaces from chemical dumping to insider trading are written in the Qur'an.
Fazlur Rahman once expressed a problem with excessive use of public interest as being one of indeterminacy. If you start to say public interest is the basis for a great deal, then there is almost no control over the interpretive process, you just assert something is good for people and then do it, and all of a sudden "Islam" starts to mean nothing other than "do what is good for the world" a proposition with which few would disagree, mainly because it doesn't mean very much.
I tend to think that concern is less important, mostly because I think the foundational texts are themselves uncertain enough and subject enough to manipulation, to render them at best marginally more effective in asserting interpretive control. Ultimately public interest is just a more direct way of doing what one might otherwise do through use of alternative rhetoric like textual interpretation and analogy. Moreover, on the flip side, just as societies coalesce around "proper" interpretations of text, so they will coalesce around particular notions about what serves the public interest in a manner that winnows down uncertainty considerably. Sit Americans down and ask them which drugs are bad for society and which are not, and I think you have relative uniformity. No real uncertainty, any more than there is on the 1964 Civil Rights Act being related to Interstate Commerce. It's not the clarity of the reasoning or the certainty of result from the reasoning in either case (that's a stretch in both cases), it's shared normative understandings.
But I think there is a related, and more existential, issue for the jurists. The problem with the excessive use of public interest from a juristic perspective, and the reason I think modern scholars at least tend to shy away from them in a lot of instances, is that the reader of such opinions doesn't so much dismiss the reasoning as bad or uncertain, certainly not in the drug instance, but merely inappropriate. I was thinking as the clerics wound through their explanations on the dangers of drugs, "you've sat around and read your law books for the past few decades, you know what the Prophet did when, what verse was revealed and what the circumstances were, how the Meccan relates to the Medinan period, and so on. What the hell do you know about drugs in society? what do you know about its effect on cognition? How would you know how it affects crime or wealth? You're not a sociologist, or an economist, or a pscyhiatrist or anything else. Why do you get to decide public interest, and the penalties?"
In many countries, the premise of such questions is accepted. The jurist (or judge too, if he interprets shari'a, as would be the case in Sunni countries) does NOT necessarily know public interest, he isn't asked to deal with those questions, they are for other branches of government, who hopefully have Islamic values in mind, but are writing whatever modern laws they are writing. The function of the judge in a Sunni country, or the jurist in a place like Shi'i Iraq, isn't to question that legislation on the basis of public interest, but to give leeway to the government to act, and to intervene when something comes up against a core Islamic tenet. Depending on their popularity and power, what is or is not a core Islamic tenet might shift (Sistani has not hesitated to use his influence to endorse ideas that seem more like Muslim public interest and less like core Islamic matters), but that's the theory. Certainly Sistani, for example, hasn't told the authorities how to deal with problems like drugs.
This idea supposedly dates from the classical era, no need to enter that debate, the point is, when it's public interest, in the modern world in many Muslim countries, its determination belongs not to the jurisprudence expert, but to other institutions. Even in Iran, jurists don't like to tell the Parliament a law is invalid because it violates public interest. Why would the jurist know that better than Parliament? They look for something that is an interpretation of foundational text to make a claim of invalidity, to grant legitimacy to their determination.
But in places like Saudi, that does not happen. The clerics have immense rulemaking power, there is no legislature to make these determinations. And so they do use public interest when they have to. Yet they have to be careful, because excessive use of something like public interest ultimately undermines the jurist, in Saudi or anywhere else. After all, if the jurist runs through twenty hadith and three verses and a historical-religio justification for a particular doctrine, the lay person may sit in awe of the knowledge of the learned doctor. But if he starts to say it's bad for you, well a doctor might well argue with him, and then he's on an even field, or perhaps one that disadvantages him. So he does what anyone in that position might expect--uses public interest when he has to (perhaps more often than he would like because he has to), and yet emphasizes in works on legal theory that it is a minor tool in the jurist's arsenal, to be used sparingly. A divide then develops between his theory (public interest is a minor concern) and his practice (broader use of it, sometimes explicitly and sometimes implicitly). As with all law, the rhetoric thus appears to mask the reality.
HAH
One problem--drugs aren't part of the sharia. They were not a serious classical concern, and there isn't a hadith of Muhammad or a verse of the Qur'an that can really be extended to cover them. I suppose you could say that the prohibition on date wine may be extended to cover mood altering substances, but extended this far, I'm pretty sure you'd lose most of those who take analogy as a form of legal reasoning seriously. What drugs would then count and what ones would not? How mood altering would it have to be (caffeine? marijuana? LSD?) What mental health conditions demand an exception? (Zoloft for depression? If I'm upset, can I pop ectasy?) I don't think the analogy could be made to work, it's extended so far as to be impossible. Intoxicants, sure. But anything that affects mood starts to become impossible I think. Yet they are taking a man's life, surely they need something to rely on.
Enter then maslaha, or public interest. This is the reed upon which these scholars lay so much weight. They recite how drugs are a menace to society, a threat to its public interest, and lead to crime and corruption, including car accidents, rape, and fights in a manner that is likely to spread chaos. They make a person think he is, in their words, "powerful over all things" (an attribute of God in the Qur'an) in addition. They don't take this very far, because if they did, then you'd have to kill every Muslim user for apostasy, but instead they stick it in to the description of the public interest to add flavor, a whiff of apostasy. They conclude with suggestions that those who are so dangerous to the public interest through the spread of poisons like this may be killed (through a specious reference to Ibn Taymiyya and an even more specious one to the Prophet).
Is this a problem? In one way, no. Maslaha seems to be a valid means of deciding something, particularly when foundational text is silent. The usul books, on what are valid sources of Islamic law, tend to downplay it, but as Mohammad Fadel has shown in his work on the Maliki madhab, the furu', the details of the law itself, often seem based more on it than on the main sources, Qur'an and hadith. If that was the case then, then nothing wrong with that now, surely the public needs protections from things and we can't be ridiculous and think all public menaces from chemical dumping to insider trading are written in the Qur'an.
Fazlur Rahman once expressed a problem with excessive use of public interest as being one of indeterminacy. If you start to say public interest is the basis for a great deal, then there is almost no control over the interpretive process, you just assert something is good for people and then do it, and all of a sudden "Islam" starts to mean nothing other than "do what is good for the world" a proposition with which few would disagree, mainly because it doesn't mean very much.
I tend to think that concern is less important, mostly because I think the foundational texts are themselves uncertain enough and subject enough to manipulation, to render them at best marginally more effective in asserting interpretive control. Ultimately public interest is just a more direct way of doing what one might otherwise do through use of alternative rhetoric like textual interpretation and analogy. Moreover, on the flip side, just as societies coalesce around "proper" interpretations of text, so they will coalesce around particular notions about what serves the public interest in a manner that winnows down uncertainty considerably. Sit Americans down and ask them which drugs are bad for society and which are not, and I think you have relative uniformity. No real uncertainty, any more than there is on the 1964 Civil Rights Act being related to Interstate Commerce. It's not the clarity of the reasoning or the certainty of result from the reasoning in either case (that's a stretch in both cases), it's shared normative understandings.
But I think there is a related, and more existential, issue for the jurists. The problem with the excessive use of public interest from a juristic perspective, and the reason I think modern scholars at least tend to shy away from them in a lot of instances, is that the reader of such opinions doesn't so much dismiss the reasoning as bad or uncertain, certainly not in the drug instance, but merely inappropriate. I was thinking as the clerics wound through their explanations on the dangers of drugs, "you've sat around and read your law books for the past few decades, you know what the Prophet did when, what verse was revealed and what the circumstances were, how the Meccan relates to the Medinan period, and so on. What the hell do you know about drugs in society? what do you know about its effect on cognition? How would you know how it affects crime or wealth? You're not a sociologist, or an economist, or a pscyhiatrist or anything else. Why do you get to decide public interest, and the penalties?"
In many countries, the premise of such questions is accepted. The jurist (or judge too, if he interprets shari'a, as would be the case in Sunni countries) does NOT necessarily know public interest, he isn't asked to deal with those questions, they are for other branches of government, who hopefully have Islamic values in mind, but are writing whatever modern laws they are writing. The function of the judge in a Sunni country, or the jurist in a place like Shi'i Iraq, isn't to question that legislation on the basis of public interest, but to give leeway to the government to act, and to intervene when something comes up against a core Islamic tenet. Depending on their popularity and power, what is or is not a core Islamic tenet might shift (Sistani has not hesitated to use his influence to endorse ideas that seem more like Muslim public interest and less like core Islamic matters), but that's the theory. Certainly Sistani, for example, hasn't told the authorities how to deal with problems like drugs.
This idea supposedly dates from the classical era, no need to enter that debate, the point is, when it's public interest, in the modern world in many Muslim countries, its determination belongs not to the jurisprudence expert, but to other institutions. Even in Iran, jurists don't like to tell the Parliament a law is invalid because it violates public interest. Why would the jurist know that better than Parliament? They look for something that is an interpretation of foundational text to make a claim of invalidity, to grant legitimacy to their determination.
But in places like Saudi, that does not happen. The clerics have immense rulemaking power, there is no legislature to make these determinations. And so they do use public interest when they have to. Yet they have to be careful, because excessive use of something like public interest ultimately undermines the jurist, in Saudi or anywhere else. After all, if the jurist runs through twenty hadith and three verses and a historical-religio justification for a particular doctrine, the lay person may sit in awe of the knowledge of the learned doctor. But if he starts to say it's bad for you, well a doctor might well argue with him, and then he's on an even field, or perhaps one that disadvantages him. So he does what anyone in that position might expect--uses public interest when he has to (perhaps more often than he would like because he has to), and yet emphasizes in works on legal theory that it is a minor tool in the jurist's arsenal, to be used sparingly. A divide then develops between his theory (public interest is a minor concern) and his practice (broader use of it, sometimes explicitly and sometimes implicitly). As with all law, the rhetoric thus appears to mask the reality.
HAH
I was thinking as the clerics wound through their explanations on the dangers of drugs, "you've sat around and read your law books for the past few decades, you know what the Prophet did when, what verse was revealed and what the circumstances were, how the Meccan relates to the Medinan period, and so on. What the hell do you know about drugs in society? What do you know about its effect on cognition? How would you know how it affects crime or wealth? You're not a sociologist, or an economist, or a psychiatrist or anything else. Why do you get to decide public interest, and the penalties?"
Mary Ann: BINGO! Bottom line.
I’m currently reading “Islam at the Crossroads” and “The Principles of State and Government” by Muhammad Asad. I’m trying to gain a better understanding of the role of the “State” in my religion brother. Let me tell you, I’m on the verge of becoming a Libertarian (Fed up with the two major party systems here). I’m a pro-homeschooler: I’m against any “State” dominating my life, eroding my freedom. When ever I hear the word “State” –“socialism” automatically comes to mind! Trying to navigate this as an: African, American, Muslim, and Mother is extremely difficult. On the other hand, I understand that I’m I a unique position, and this is actually an opportunity. When I hear the word “Public Interest” it reminds me of what we call “eminent domain.” That’s too much power for any system of governance to have.
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