16. THE PENALTY FOR DRINKING
Any beverage that intoxicates when taken in large quantities is unlawful both in small and large quantities, whether it is wine, (fermented) raisin drink, or something else.
The penalty for drinking is obligatorily enforced against anyone who:
a) drinks;
b) has reached puberty;
c) is sane;
d) is Muslim;
e) does so voluntarily;
f) and knows it is unlawful (the restrictions mentioned above about the ignorance of the prohibition of adultery also applying here).
The penalty for drinking is to be scourged forty stripes, with hands, sandals, and ends of clothes. It may be administered with a whip, but if the offender dies, an indemnity is due (from the scourger) for his death. If the caliph increases the penalty to eighty stripes, it is legally valid, but if the offender dies from the increase, the caliph must pay an adjusted indemnity, such that if he is given forty-one stripes and dies, the caliph must pay 1141 of a full indemnity.
Someone who commits adultery several times (or drinks several times, or steals several times) before being punished is only punished once for each type of crime.
The penalty for a crime is not obviated by the offender’s having repented for it, with the sole exception of the highwayman, who is not penalized at all if he repents before he is caught.
It is not permissible to drink an intoxicant under any circumstances, whether for medicine (or in bread, or to cook meat with it,) or out of extreme thirst, with the sole exception of when one is choking on a piece of food and there is no other means of clearing it from one’s throat save by drinking the intoxicant, in which case it is obligatory. (Sheikh aI-Islam (A: Zakariyya Ansari) states, “It may not be used for medicine or extreme thirst, though there is no prescribed penalty for doing so, even when something besides it is available.” The prohibition of using it for medicine or extreme thirst refers to when it is unadmixed, as opposed to when it is compounded with something else that renders it completely indistinguishable, such that no taste, color, or odor of it remains, in which case it is permissible.)
NONALCOHOLIC INTOXICANTS
(Muhammad Shirbini Khatib:) The term beverage excludes plants, such as hashish, which hashish users eat. The two sheikhs (Rafi’i and Nawawi) report in their section on foods the position of Ruyani that eating it is unlawful, though no legal penalty is fixed for it (Mughni al-muhtaj ila ma’rifa ma’ani alfaz alMinhaj (y73), 4.187).
(al-Mawsu’a al-fiqhiyya:) Just as any beverage that intoxicates when taken in large quantities is also unlawful in small quantities, so too it is absolutely unlawful to use any solid substance detrimental to mind or body which produces languor or has a narcotic effect, this prohibition applying to the amount that is deleterious of it, not to the minute, beneficial amounts prescribed to treat illnesses, for such substances are not unlawful in themselves, but unlawful because they are deleterious (Mawdu’ al-ashriba. Tab’a tamhidiyya Ii mawdu’at al-Mawsu’a al-fiqhiyya, no. 1 (y134), 49).
(Source: The reliance of the traveller, revised edition, Edited and Translated by Nuh Ha Mim Keller)
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