Chapter Three. The Law. Fiqh, Shari'a. 5
5. "The Rejecting Of The Reprehensible\" (AL-NH 'An Al-munkar)
Among things reprehensible there are degrees: "arm", which means positively tabu, and "makrh", or disapproved.
"Prohibited Liquors": [It should be noted that al-Marghinn, a anaf, is taking a particularly liberal view as to what constitutes
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forbidden beverages, since he indicates that drinks made from honey or grain may legally be considered as falling outside the prohibition on wine. Most lawyers do not agree with him.]
The first of these is "khamr" (wine) meaning, according to Ab anfa, the juice of the grape fermented.... Others maintain that "khamr" is applicable to whatever is of an inebriating quality, because it is mentioned in the traditions that "Whatever inebriates is "khamr"," and in another tradition "Khamr" is produced from two trees, namely the vine and the date-palm...."
"Khamr" is in itself unlawful whether it be used... even in so small a quantity as not to be sufficient to intoxicate; yet the same law does not apply to other things of an inebriating quality, for a little of them, if not sufficient to intoxicate, is not forbidden. Al-Shfi', indeed, is of the opinion that these are likewise unlawful in any quantity.
"Khamr" is filth in an extreme degree, in the same manner as urine; for the illegality of it is indisputably proven.
Whosoever maintains "khamr" to be lawful is an infidel (and exposed to the penalty for apostacy), for he rejects incontestable proof.
It cannot constitute property with a Muslim, and if it is destroyed or usurped by any person there is no responsibility. The sale of it is moreover unlawful (for a Muslim, but not for People of the Book).... Whoever drinks "khamr" incurs punishment, although he be not intoxicated, for it is said in the traditions, "Let him who drinks "khamr" be whipped, and if he drinks it again, let him be again in the same manner punished." The whole of the Companions are agreed upon this point, and the number of stripes prescribed is eighty....
If a person boil "khamr" until two-thirds of it evaporate, it is not thereby rendered lawful. If, however, a person drink of it after such a process he is not liable to punishment unless he is intoxicated....
Liquor produced by means of honey, wheat, barley, or millet is lawful, according to Ab anfa and Ab Ysuf, although it be not boiled, provided it not be drunk in a wanton manner. The argument they adduce is the saying of the
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[paragraph continues] Prophet, "Khamr" is the product of these two trees" (meaning the vine and the date-palm).... It has likewise been disputed whether a person who gets drunk with any of these liquors is to be punished. Some have said he is not; the learned in the Law, however, have determined otherwise 26
\"Disapproved Things": It is disapproved to distinguish the sentences of the Qur'n with marks or insert in it the points or short vowels. Nevertheless the learned... have said it is proper when done for the use of a non-Arab.
There is no impropriety in a polytheist entering the Inviolate Mosque (at Mecca). Shfi' holds it to be disapproved, and Mlik has said it is improper for such to enter any mosque. The argument of Shfi'... is that God says: "Those who associate anyone with God are impure, and must not be permitted to enter the Inviolate Mosque." Another argument (used by Mlik) is that an unbeliever is never free from impurity as he does not perform ablution in such a manner as to work a purification, and an impure man is not allowed to enter (any) mosque.... The argument of our (anaf) doctors on this point is drawn from a tradition that the Prophet lodged several of the tribe of Thaqf who were unbelievers in his own mosque. As the impurity of an unbeliever lies in his unbelief, he does not thereby defile a mosque.
... It is disapproved for a Muslim to keep eunuchs in his service, as the employment of them is a motive with men to reduce others to a like state, a practice which is proscribed in the Law.
... There is no impropriety in visiting a Jew or Christian in their illness... the Law does not prohibit us from thus consoling them.
... It is disapproved to say in a prayer, "I beseech thee, Oh God, by the right of (any person or prophet)," because none of His creatures is possessed of any right with respect to the Creator.
... It is disapproved to play at chess, dice, or any other game, for if anything be staked it is gambling, which is expressly prohibited in the Qur'n; or if on the other hand nothing is hazarded, it is useless and vain.... Several of the
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learned, however, deem the game of chess to be allowed as having a tendency to quicken the understanding....
There is no impropriety in selling the juice of dates or grapes to a person whom the seller may know intends making wine of it, for the evil does not exist in the juice but in the liquor after it has been essentially changed. The case is different with respect to selling arms at a time of tumult, since in that instance the evil is established and exists in the original thing, arms being the instruments of sedition and rebellion 27
Footnotes
132:26 \"Ibid"., pp. 607, 608.
132:27 Paul Horster, "Zur Anwendung des Islamischen Rechts im 16. Jahrhundert" (Stuttgart, 1935), p. 67.
Among things reprehensible there are degrees: "arm", which means positively tabu, and "makrh", or disapproved.
"Prohibited Liquors": [It should be noted that al-Marghinn, a anaf, is taking a particularly liberal view as to what constitutes
p. 130
forbidden beverages, since he indicates that drinks made from honey or grain may legally be considered as falling outside the prohibition on wine. Most lawyers do not agree with him.]
The first of these is "khamr" (wine) meaning, according to Ab anfa, the juice of the grape fermented.... Others maintain that "khamr" is applicable to whatever is of an inebriating quality, because it is mentioned in the traditions that "Whatever inebriates is "khamr"," and in another tradition "Khamr" is produced from two trees, namely the vine and the date-palm...."
"Khamr" is in itself unlawful whether it be used... even in so small a quantity as not to be sufficient to intoxicate; yet the same law does not apply to other things of an inebriating quality, for a little of them, if not sufficient to intoxicate, is not forbidden. Al-Shfi', indeed, is of the opinion that these are likewise unlawful in any quantity.
"Khamr" is filth in an extreme degree, in the same manner as urine; for the illegality of it is indisputably proven.
Whosoever maintains "khamr" to be lawful is an infidel (and exposed to the penalty for apostacy), for he rejects incontestable proof.
It cannot constitute property with a Muslim, and if it is destroyed or usurped by any person there is no responsibility. The sale of it is moreover unlawful (for a Muslim, but not for People of the Book).... Whoever drinks "khamr" incurs punishment, although he be not intoxicated, for it is said in the traditions, "Let him who drinks "khamr" be whipped, and if he drinks it again, let him be again in the same manner punished." The whole of the Companions are agreed upon this point, and the number of stripes prescribed is eighty....
If a person boil "khamr" until two-thirds of it evaporate, it is not thereby rendered lawful. If, however, a person drink of it after such a process he is not liable to punishment unless he is intoxicated....
Liquor produced by means of honey, wheat, barley, or millet is lawful, according to Ab anfa and Ab Ysuf, although it be not boiled, provided it not be drunk in a wanton manner. The argument they adduce is the saying of the
p. 131
[paragraph continues] Prophet, "Khamr" is the product of these two trees" (meaning the vine and the date-palm).... It has likewise been disputed whether a person who gets drunk with any of these liquors is to be punished. Some have said he is not; the learned in the Law, however, have determined otherwise 26
\"Disapproved Things": It is disapproved to distinguish the sentences of the Qur'n with marks or insert in it the points or short vowels. Nevertheless the learned... have said it is proper when done for the use of a non-Arab.
There is no impropriety in a polytheist entering the Inviolate Mosque (at Mecca). Shfi' holds it to be disapproved, and Mlik has said it is improper for such to enter any mosque. The argument of Shfi'... is that God says: "Those who associate anyone with God are impure, and must not be permitted to enter the Inviolate Mosque." Another argument (used by Mlik) is that an unbeliever is never free from impurity as he does not perform ablution in such a manner as to work a purification, and an impure man is not allowed to enter (any) mosque.... The argument of our (anaf) doctors on this point is drawn from a tradition that the Prophet lodged several of the tribe of Thaqf who were unbelievers in his own mosque. As the impurity of an unbeliever lies in his unbelief, he does not thereby defile a mosque.
... It is disapproved for a Muslim to keep eunuchs in his service, as the employment of them is a motive with men to reduce others to a like state, a practice which is proscribed in the Law.
... There is no impropriety in visiting a Jew or Christian in their illness... the Law does not prohibit us from thus consoling them.
... It is disapproved to say in a prayer, "I beseech thee, Oh God, by the right of (any person or prophet)," because none of His creatures is possessed of any right with respect to the Creator.
... It is disapproved to play at chess, dice, or any other game, for if anything be staked it is gambling, which is expressly prohibited in the Qur'n; or if on the other hand nothing is hazarded, it is useless and vain.... Several of the
p. 132
learned, however, deem the game of chess to be allowed as having a tendency to quicken the understanding....
There is no impropriety in selling the juice of dates or grapes to a person whom the seller may know intends making wine of it, for the evil does not exist in the juice but in the liquor after it has been essentially changed. The case is different with respect to selling arms at a time of tumult, since in that instance the evil is established and exists in the original thing, arms being the instruments of sedition and rebellion 27
Footnotes
132:26 \"Ibid"., pp. 607, 608.
132:27 Paul Horster, "Zur Anwendung des Islamischen Rechts im 16. Jahrhundert" (Stuttgart, 1935), p. 67.
