I’ve been rather amused by the extreme reactions on all sides to Iraq’s recent decision to “importation, manufacture and sale” of alcoholic beverages. It’s either some sort of unconstitutional infringement of human rights, or it’s absolutely necessary because Islamically mandated. The head of the legal committee went so far as to “congratulate” Iraq’s clerical leaders the alcohol ban, even though they had nothing to do with it and he wrote it. Ironically, all sides point to the very same Article 2 of the Constitution to justify their position. It prohibits laws from being passed that infringe upon (i) the settled rulings of Islam, (ii) the principles of freedom, and (iii) the fundamental rights and freedoms contained in the Constitution. It has been argued that the problem is in Article 2 itself, for what kind of clause is it that can be used both to mandate and prohibit the very same activity?
Personally, I think the problem in this case is more about bad argumentation than anything else. On the more secular side of things, it is not a fundamental right or freedom to drink alcohol. Alcohol is a drug like no other–indeed some argue that it is more dangerous than marijuana. I’m not personally invested in whether or not that is true, but surely, if you believe in a democratic society, you have to believe in the power of the elected legislature to decide which drugs are too dangerous, and to ban them. It might be stupid policy, but in that case, vote the bums out next time around. So, yes, an Iraqi legislature can ban alcohol if it wants to.
But the idea that this is Islamically mandated is even more bizarre. The law specifically bans the “importation, manufacture and sale” of alcohol beverages of any type in Article 14 and imposes fines for the violation. There is a reason for this. The law is actually a Municipal Revenues Law, and so there was some justification for slipping in a prohibition of taking revenue on alcohol because it is banned from sale, manufacture or importation. Still, if you’re going to get up and insist that Islam mandates this, and you are going to insist that the settled rulings are clear and you are going, in fact, to go so far as to congratulate Najaf for its passage which they had nothing to do with, you probably should learn your settled rulings first. Here’s Khu’i:
Whoever voluntarily drinks an intoxicant aware of the prohibition and is of age and sane, is punished by Scripture. There is no difference between small amounts and large, just as there is no difference in the types of intoxicants, whether taken from dates, grapes or something similar. . . .
There is no difference in establishing the Scriptural Crime if it is drunk, or enters the stomach.. . .
The drinking of an intoxicant is proven by two just witnesses, or by a single confession. The testimony of women, individually or together, is not sufficient.
The Scriptural punishment is 80 lashes, with no difference between the man and the woman, the free and the slave, the Muslim and the nonbeliever.
Minhaj 3: 217-220
The rules appear elsewhere as well, such that they can be fairly described as “settled”, within Shi’i orthodoxy anyway. (Reformists have their views, which are beyond the scope of this post). But there isn’t a single one of these settled rules reflected in the Iraqi legislation. There is no reference to proof requirements in the legislation, the punishment is a fine and not lashing, and, most importantly of all, if Islam “mandates” anything under these orthodox texts, it is the punishment, by lashing, of those who consume alcohol, not those who sell or import or manufacture it.
It would be fair, of course, to point out that one cannot consume alcohol if nobody can manufacture, sell or import it. Query whether that is true, depending on what “manufacture” is taken to mean (is leaving my grape juice too long “manufacturing” an alcoholic beverage?), but even if so, it’s purely derivative. That is, it might well be consistent with Islamic law to ban these derivative activities so as to stop the real Divine Crime of actually drinking it, but it is hardly “mandated” by Islam to ban the derivations, in particular if you leave the consumption legal.
So if conservative and tradtionalist orthodoxy mandates something, it is to lash the drinker 80 times, and if he does it again, another 80 and if he heads to happy hour a third time, he is killed. (para. 222, same source). If you don’t bother with that part, and you instead fine importers and manufacturers and sellers, then fine, do whatever you want, as an elected legislature. It’s your prerogative, you can decide what activities are and are not socially dangerous and how to go about prohibiting those that are.
Just, when you go about all this, stop calling it “Islam.” It’s not, and you aren’t respecting the religion by playing political football with it.