Qarāfī et al. Al-Furūq : Aw Anwār Al-Burūq fī Anwāʼ Al-Furūq. al-Ṭabʻah 1. ed., pp 215-216, Dār Al-Kutub Al-ʻIlmīYah, 1998.
Summary: The text in question is an excerpt from Al-Furūq : aw Anwār al-burūq fī anwāʼ al-furūq or ‘The Differences’ written by Malikī jurist Imam Shihāb al-Dīn al-Qarāfī (684/1285) who was a prominent Malikī legal theoretician of the 13th century. The work discusses differences between apparently identical legal precepts on the occasion of cases which emerge that are similar to each other. In this excerpt, the author draws fine legal distinctions between wine (khamr) and hashīsh, classifying the latter as a corruptive or mufsid substance but not as an intoxicant.
Al-Furūq : aw Anwār al-burūq fī anwāʼ al-furūq or The Differences is one of the most well-known works of the Malikī jurist Imam Shihāb al-Dīn al-Qarāfī (684/1285). His writings on Islamic legal theory heavily influenced the Islamic world and helped shape Islamic legal theory far beyond the Old Cairo region where he grew up. Al-Furūq sets out to distinguish between seemingly identical legal precepts and the textual excerpt in question addresses the differences between wine (khamr) and hashīsh.[1] Both substances are topics that are of considerable interest to questions of intoxication and forbidden substances (harām) in Islamic law. The work does not contend directly with the permissibility of using a substance such as hashīsh, but instead concerns itself with distinguishing – and pronouncing judgments – on cases that are similar and parallel to one another. In this particular context, then, Qarāfī takes up the question of the nature of the two substances – khamr and hashīsh – and their capacity for invalidating prayer. The jurist’s ruling that hashīsh is merely mufsid (corruptive) and not intoxicating is significant because conventional rulings on substances related to alcohol as impermissible have tended to hinge on the justification of intoxication. Qarāfī’s writing suggests that the line between what is intoxicating and what is not is more ambiguous than conventional Islamic legal scholarship suggests, which has important ramifications for Muslim ritual practice in daily life. The following sections shall examine this significance, beginning first with a consideration of Qarāfī ’s analysis and proceeding to a broader discussion of legal methodology, in particular the role of qiyās or analogical reasoning, in Islamic legal history.
Qarāfī ’s effort to distinguish between the qualities of wine and hashīsh are remarkable for the conclusion that the legal theorist ultimately reaches, namely, that hashīsh is a mufsid or ‘corruptive’ but not necessarily an intoxicant. He outlines the reasons scholars have provided for the impermissibility of wine, a legal ruling that is centered around its intoxicating nature. Intoxication is problematic for several reasons, as the Qur’ān itself notes[2]. Some of these reasons (which Qarāfī also alludes to), include wine’s interference with reasoning or the intellect, its potential to impact the memory, and a general associated loss of the senses including slowness in bodily movement (215). Hashīsh, however, seems not to fall into this category – a point the author does not fully explain except to state that wine is intoxicating and thus, interfering with the intellect or mind, whilst hashīsh is merely corruptive to the intellect. His judgment correspondingly raises questions as to decisions on the legality or permissibility of potentially intoxicating substances. If standards for something to be considered harām involve notions of intoxication – the standard explanation provided for the textual, Qurānic prohibition of wine-drinking – then the discussion here raises interesting points as to whether different standards can also be invoked to classify a product as similarly harām. On the other hand, if intoxication is the sole reason for a potentially intoxicating substance’s prohibition, then the distinction between hashīsh and wine might lead one to classify the former as makrūh or ‘disliked,’ instead.
Qarāfī ’s discussion of the different states that hashīsh is consumed in strengthens such considerations. His exploration of the question of invalidation of prayer if one ingests this drug is particularly relevant. The jurist points to differences in opinion among other Muslim jurists as to when hashīsh may not be considered an intoxicant; some jurists were of the opinion that if the product is consumed before cooking or distilling (to liquid form) than its ingestion does not invalidate the prayer. If, however, hashīsh comes to be consumed after it is baked or cooked to a juice/liquid form, then it has the effect of intoxicating the mind and the prayer is correspondingly invalidated (216). The question of validity of prayer is closely tied with the question of intoxication and the extent to which hashīsh can be said to produce the effects of an intoxicant. Not all scholars were of this opinion; some made no distinction between the raw and cooked form of hashīsh[3], considering both states to be intoxicating and correspondingly, a reason for invalidation of the prayer. Qarāfī, for his part, believes the substance to be “mufsidah” instead, stating explicitly that “the mufsidah does not invalidate prayer like banj or alcoholic (intoxicating) liquor” (216).
The scholar’s view, while not condoning the use of hashīsh nonetheless sheds light on some of the nuanced discussions surrounding drug products and their consumption. In doing so, it also brings to light the principle of qiyās or analogical reasoning that is characteristic of legal rulings on a substance’s harām or halal (permissible) status. In his Principles of Islamic Jurisprudence, Mohammad Hashim Kamali provides a useful definition of qiyās and the methodology of its application:
Qiyās is a means of discovering, and perhaps of developing, existing law. Although qiyas offers considerable potential for creativity and enrichment, it is basically designed to endure conformity with the letter and the spirit of the Qur’ān and the Sunnah…The main sphere for the operation of human judgment in qiyas is the identification of a common ‘illah between the original and the new case. Once the ‘illah is identified, the rules of analogy then necessitate that the ruling of the given text be followed without interference or change (265).
The relationship between alcohol and narcotics is Islamic law is predicated upon this principle of analogical reasoning. The common cause or ‘illah between the two matters is that of intoxication, a point Kamali notes when he draws on wine and narcotics as an example of analogical reasoning in Islamic legal ruling. The author begins by outlining a description of the four “essential requirements” for an application of qiyās: (i) the original case or aṣl on which a textual ruling exists, (ii) the new case, far’ for which a ruling is needed, (iii) the effective cause or ‘illah found in the aṣl and which serves as a common denominator between the old and the new case, and (iv) the ruling or ḥukm governing the original case that is extended to the new one. As Kamali notes, and as Islamic scholars have conventionally ruled, the original case or aṣl of wine-drinking as presented in verses such as verse 90 of Surah Mā’idah,[4] is associated with the ‘illah of “intoxicating effect” and the ruling or ḥukm of prohibition. This ruling is then extended to the far’ of narcotic drugs that share with alcohol the quality of having an intoxicating effect (267-268).
Qarāfī’s ruling is thus obviously striking; in classifying hashīsh as mufsid and not intoxicating, the jurist rejects that the ‘illah or common attribute which is identified between alcohol and narcotic drugs holds in this particular situation. Hashīsh, then, may not be explicitly forbidden or considered impermissible. A competing view to this conclusion, however, might extend the common cause or ‘illah beyond that of intoxication. In such a scenario, the jurist might still hold the belief that hashīsh is ḥarām so long as the ‘illah is said to include qualities other than intoxicating effect, and has its support in the Qurān. In this case, and given Qarāfī ’s general affinity for the notion of maṣlaḥa (the common good) and custom, a substance like hashīsh may be justified as forbidden on its generally corruptive qualities, but not for its intoxicating effects. The distinction that nonetheless exists between khamr and hashīsh, and the absence of textual prohibition for the latter, strengthens the case for why Qarāfī was led to rule that consumption of the narcotic does not, ultimately, invalidate a believer’s prayer.
Works Cited:
“ḥas̲h̲īs̲h̲”, in: Encyclopaedia of Islam, Second Edition, Glossary and Index of Terms, Edited by: P.J. Bearman, Th. Banquis, C.E. Bowworth, E. van Donzel, W. P. Heinrichs Bowworth. Consulted online on 04 December 2018 http://dx.doi.org.ezp-prod1.hul.harvard.edu/10.1163/1573-3912_ei2glos_SIM_gi_01511
Kamali, Mohammad. Principles of Islamic Jurisprudence. 1991.
Qarāfī et al. Al-Furūq : Aw Anwār Al-Burūq fī Anwāʼ Al-Furūq. al-Ṭabʻah 1. ed., pp 215-216, Dār Al-Kutub Al-ʻIlmīYah, 1998.
Haider, Najam. “Contesting Intoxication: Early Juristic Debates over the Lawfulness of Alcoholic Beverages.” Islamic Law and Society, vol. 20, no. 1-2, 2013, pp. 48–89.
Notes:
[1] Understood to refer to hemp, or the narcotic product of Cannabis sativa. See “Encyclopedia of Islam, Second Edition, Glossary and Index of Terms.” “ḥas̲h̲īs̲h̲”, in: Encyclopaedia of Islam, Second Edition, Glossary and Index of Terms, Edited by: P.J. Bearman, Th. Banquis, C.E. Bowworth, E. van Donzel, W. P. Heinrichs Bowworth. Consulted online on 04 December 2018 <http://dx.doi.org.ezp-prod1.hul.harvard.edu/10.1163/1573-3912_ei2glos_SIM_gi_01511>
[2] See Qurānic verses (2:219), (4:43), and (5:90-91) which discuss the various ills of intoxication as they relate to prayer, remembrance, and Satan’s temptation.
[3] A parallel discussion appears to take place in the debates surrounding the lawfulness of alcoholic beverages. Najam Haider’s Contesting Intoxication: Early Juristic Debates Over the Lawfulness of Alcoholic Beverages examines these legal debates particularly between Maliki/Shafi’i and Hanafi jurists. The article also explores the discussions on prohibition and intoxication in relation to the various ways of preparing alcohol (Haider, 2013).
[4] “O you who have believed, indeed, intoxicants, gambling, [sacrificing on] stone alters [to other than Allah ], and divining arrows are but defilement from the work of Satan, so avoid it that you may be successful.” [Sahih International, 5:90]