In the Name of Allah All-Beneficent Most Merciful
It is well known that in Islam, the consumption of alcohol is prohibited. It is less well known that it was not always prohibited. The earliest companions of the Prophet drank wine – as the whole society around them drank wine – as a matter of course. It was only later in the evolution of the community, after trust in God and an aspiration to character development had become better established in the hearts of the faithful, that this particular refinement of behavior was introduced.
We learn from this progression that certain prohibitions are not imposed by God on a people still unready to accept them. Human beings, unfortunately, all too often do not emulate the divine discretion. We seek to develop character by force. Practical experience shows that this is a losing battle. When the laws of a society are too far removed from the beliefs and practices of its people, then those laws will be routinely flouted, and the dignity of the law itself – of the principle of law – will suffer in consequence. The people too, of course, will suffer from the penalties inflicted upon them for violating these seemingly arbitrary laws. And they will consider their suffering unjust. In this way a deep abyss opens up between day-to-day legal proceedings and the great principle of justice that those proceedings are intended to preserve.
Reverence for justice, and for the practice of justice, are among the essential foundations of a stable and benign society.Reverence for justice, and for the practice of justice, are among the essential foundations of a stable and benign society, one that can reliably provide its members with a common life worth living. When laws are widely perceived to be divorced from justice, the society they structure becomes unstable or malign. It is for this reason that the Qur’an directs Muslims, as champions of justice, to enjoin the ma`ruf and reject the munkar. The terms refer not to absolute definitions of virtue and vice, or to technical categories of permitted and forbidden, but to what people already understand to be right, and what people already understand to be wrong. A law must be broadly accepted before it can be applied. If the people do not believe in the law, it fails, because the whole object of law in the first place is to establish public trust.
It is for this reason that laws governing private morality have been rescinded, bit by bit, from the legal codes of secular societies. The American experiment with the legal prohibition of alcohol offers abundant proof that in complex social orders where many different expectations and customs are simultaneously held by different segments of the population, the attempt to impose a single standard on everyone will lead to an explosion of the very behavior that the law was attempting to suppress.
And as it was with alcohol, so it is with other intoxicants today. The more the State attempts to suppress them, the more they flourish, and the more social harm is produced. If the enforcement of law aims at the removal of social harms, then the project of the “drug war” is entirely self-defeating.
If the enforcement of law aims at the removal of social harms, then the project of the “drug war” is entirely self-defeating.It is not that the people do not care for morality: it is that the application of force produces negative results when the development of character is at issue. The wisdom of the Qur’anic maxim “Let there be no compulsion in religion” is abundantly illustrated in this as in many other cases.
To elevate the ethics of persons requires a process entirely independent of coercion. Neither legislation nor law enforcement can achieve that goal. It can only be attained through education, and such education can only proceed with the consent of the educated. How often we forget that the original community of Islam was an intentional community, based on a conscious social contract explicitly adopted by every one of its members! Modern nations and modern neighborhoods, based on accidental proximity and historical inertia, are not even remotely the same thing. Therefore they cannot be expected to be governed effectively by the same kinds of rules.
Law is most likely to be experienced as oppression when it is differentially applied, because people already understand that fair is fair. When penalties for the same behavior are incurred by the poor, but not by the rich; by the common people, but not by the elite; by black and brown persons, but not by white ones; then the balance and equity marking the presence of justice are replaced with the convenience and self-interest of the strong. When the law does not protect the weak against the strong, then the truthfulness at its core is replaced by hypocrisy and social trust is broken. Such a situation is abominable; no good can come of it; and it becomes the responsibility of Muslims to speak.
In order to be champions of justice, [Muslims] must above all be champions of equity.In complex, diverse societies, faith in justice depends on the public perception of equity. Muslims living in such societies, therefore, in order to be champions of justice, must above all be champions of equity. We must turn our attention from the branches of the shari`ah back to its profoundest moral roots. In fulfilling our obligation to enjoin the ma`ruf and reject the munkar in the complex societies to which we belong, the absence of equity is of far more urgent concern than the presence of intoxication.