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.
HAH
I would argue the blanket ban is unconstitutional, at the very least as failing to protect Christians, for whom the consumption of wine is an integral part of their worship. Article 2(Second) specifically protects the “religious beliefs *and practice* of all individuals, including Christians.” Inherent in their right of consumption as a matter of religious praxis is their right to “manufacture” or import.
Fair point Faisal, but isn’t that an argument about a religious exemption for particular persons engaged in particular activities? I’m not saying an alcohol ban is not uncommonly dumb, because it is, and wastes state resources that really should be directed in other directions, but I don’t see how it somehow is a constitutional right of a person to drink, unless we are talking, as you are, about the right to drink in connection with religious worship.
“On the more secular side of things, it is not a fundamental right or freedom to drink alcohol.”
It is easy to say that when what is legislated against does not concern you to begin with. The French do it with the burqa; Muslim states do it with a host of things, from alcohol bans to LGBT persecutions (https://youtu.be/e403Hn3L9CU?t=59m13s). You may be right about the technicalities of Islamic law, but on grounds of human rights you are certainly not. These kinds of legislation are prejudicial in nature and, as such, they are violations of human rights.
The persecution of members of the LGBT community is not the same thing as banning alcohol. Or marijuana. Or heroin. Or cocaine.
I’m not the one arguing they’re the same; Muslim legislators are — and with the same justification: divine law. Hence my point about the pointlessness of bringing a religious law technicality to a human rights fight.
My blog is about Islamic law, and in that context, it’s hard to see how pointing out how a legislative justification to take a particular action on the basis of Islamic law is not in fact mandated by Islamic law is a “religious law technicality.” You are free to take the position that it is “pointless” to bring it up, even as I am free to argue your position is anti intellectual read in its most charitable light, but it’s a big wide internet with room enough for us all. It is curious, however, that you’d read an Islamic law blog closely enough to comment, twice, and somehow still think discussions of Islamic law in national legislation are pointless technicalities.
In any event, alcohol bans are not purely Islamic inventions. The 21st amendment to the US constitution permits states to ban alcohol sales, and in fact prohibits individuals from taking alcohol into states where alcohol is prohibited. Many states used to ban alcohol sales entirely, and hundreds of counties still do when their states permit them to do so (as many continue to do, with punishment for violators). If there is a human rights argument against all of this percolating somewhere, it is one to which the United States courts have been entirely to my knowledge oblivious–I’ve never seen a human rights argument raised once, in any state or federal court, in any criminal, civil or constitutional matter, ever. More interesting to me is the importation prohibition of the 21st amendment. Read restrictively in a 2005 case (the state has to ban alcohol domestically to ban importations of it since that year), it remains the case that section 2 of it prohibits private individuals who import alcohol from taking it to a state where it is prohibited.
So, to summarize, there are really only two things the U.S. Constitution prohibits private individuals to do. The first is own people (13th amendment). The second is deliver alcohol to people who want to exercise their supposed “human right” to drink. Oh, and yes, “I’m not the one arguing they’re the same; white Protestant legislators are”
Perhaps it’s my American lawyer’s bias in favor of letting elected legislatures determine national policies, but I don’t take this business of a human right to alcohol seriously enough to engage any further on this. I’m out.