JARIMAH SYURB AL-KHAMR
The
article is compiled to fulfill assignment
Fiqh
Jinayah
lesson
Docent
: M. Solek
Compiled
by :
1. Erlangga
Danny Rimba Pradana 1702056057
2. Uyun
Firdaus Wijayanti 1702056059
3. Dwi
Ratna Swari 1702056060
LAW
SCIENCE MAJOR
FACULTY
OF SYARIA AND LAW
WALISONGO
ISLAMIC UNIVERSITY
SEMARANG
2018
2018
CONTENT
1.
Chapter I
Preliminary
A.
Background ........................................................................................................... 1
B.
Problem
Formulation ............................................................................................. 1
C.
Purpose .................................................................................................................. 1
2. Chapter
II Discussion
A.
Definition of
Jarimah asy-Syurb al-Khamr ........................................................... 2
B.
Elements of
Jarimah Syurb al-Khamr .................................................................... 3
C.
Proibition Theorem of Jarimah Syurb al-Khamr .................................................... 5
D.
Mode of Evidence
of Jarimah Syurb al-Khamr .................................................... 6
E.
Scourge
Punishment for Jarimah asy-Syurbul Khamr ........................................... 7
3. Chapter
III Closure
A.
Conclution .............................................................................................................. 8
B.
Suggestion .............................................................................................................. 8
CHAPTER
I
PRELIMINARY
A. BACKGROUND
Human
is living by helping each other. This dependent attitude produce certain fixed cooperation
and generating certain society form. Existence of human as a social creature
has interests that embodied in cooperation form, even conversely can trigger
opposition. Society system generally ruled by law or regulation which becomes
guidance in act and behave that embodies in commandement and prohibition. But
it seems, order and prohibition is not enough to abandon bad behaviour, so thus
it is needed norms, i.e. decency norm, polite norm, religion norm, and law
norm. The purpose of norms, are to restrict behaving and acting freely of each
individual towards society, is a form of protecting society to its people in
living-intercourse.
Norms
or rules then known with law, is good written and unwritten stipulation which
rules society regulatin so for everyone who denies the regulations then he/she
will be sentenced as the existing stipulations. As we know, crime in the world
exists incorporate with human development.
B. PROBLEM FORMULATION
1. What
is jarimah syurb al-khamr?
2.
How is the
punishment of jarimah syurb al-khamr?
C.
PURPOSE
This article is presented for the reader in rush
circumstances. In the beginning deliberately attach Arabic form, because this
article is talking about jinayah where it can’t be removed from Arab tradition
at the time. So here, the writers hope by this article, the reader can know
about the crime of drinking liquor according to Quran and Hadits and also
ijtihad and also improve awareness of us to avoid the deed.
CHAPTER
II
DISCUSSION
A.
Definition
of Jarimah Syurb al-Khamr
According to Imam al-Mawardi, جريمة is a deed prohibited by syara’, threated by Allah swt by had or
ta’zir sentence. جنية is
a term of prohibited deed by syara’ concerning to wealth, soul, reason, or
intellegence. خمر originated
from خمر, يخمر terminologically is closed, hampered, or
concealed. ألشرب according Abd Al-Qadir which he quoted
Imam Abu Hanifah said,
فا ألشرب عنده قا
صر على شرب ألخمر فقط سواء كان ما شرب كثيرا أو قليلا.[1]
Meaning:
“So drinking according to him (Abu
Hanifah) is to drink only khamr either less or more.”
From above definition Abu Hanifah formulates khamr
to be three solids:
a. Distillation
of grape precipitated till effervesce and to be intoxicating substance.
b. Distillation
of grape cooked till blazing to two three real substance of wine lost and
finally to be intoxicating substance.
c. Distillation
of palm and dry grape are precipitated to be effervesce and to be intoxicating
substance.
By the definition above can be revealed that khamr
according to Abu Hanifah is beverage gained from wine distillation. Thus, Imam
Abu Hanifah distincts between khamr and musykir. Khamr is
regarded as haram to drink whether less or more. In addition to khamr, musykir
is an ingredient from another wine distillation that is intoxicating, liable to
punishment if someone, who drinks it, is intoxicated. If not so, it is not
liable to be sentenced.
According to Hasbi ash Shiddieqy khamr is
wine distillation and equivalent of it proccessed to be intoxicated liquor, and
every intoxicated matter is khamr.[2]
According to M. Iqbal, خمر originally means “it veiled or covered or concealed” a thing
and grape is called khamr because it veils intellect and obscures the
moral sensibilities of man. Quoting the explanation from Lane, Iqbal showed
that khamr is differently explained as meaning what intoxicates, of the
expressed juice
of grapes, or the juice of grapes when it has effervesced and thrown up froth,
and become freed therefrom, or it has a common application to intoxicating
expressed juice of anything, or any intoxicating thing that clouds or obscures
the intellect.(M, Iqbal, 1994: 112)
“...the basic material in alcoholic
fermentation is the same (i.e. glucose) whichever raw material is used. Grape
juice contains ready glucose, but in the case of corn, glucose has to be
produced by various treatments, before alcoholic fermenation can even start. So
khamr covers all alcoholic beverages, a view held by Shah Waliullah and almost
all the Imams.”[3]
From definition which has mentioned above by ulama’,
we can conclude that khamr is every sort of beverage or intoxicated
substance whether from wine, palm, honey, wheat or other material, either being
drunk or being eaten less or more.
B.
Elements
of Jarimah Syurb al-Khamr
Such deed can be regarded as jarimah if fullfilled
several element, i.e. general element and particular element. General elements
that must be fullfilled:
a. Existence
of Nash which forbidden and menace law against it. This element usually called
formal element (syar’i pillar). Requirement about prohibition drinking liquor
is written in Surat Al-Maidah verse 90.
b. Existence
of behaviour which forms jarimahm either concrete deeds or unacting attitude.
This element usually called material element (maddi pillar). The person has
swallowed although has just nogged.
c.
Subject is mukallaf
person such as person which can be demanded responsible against acted jarimah.
This element is called moral element (adabi pillar).[4]
Aside the general element above, particulat element
that must be accomplished from jarimah syurb al-khamr. There are two particular
elements as follows:
1. Asy-Syurbu
Person
which being drunk if thing he/she drinks has swallowed till thrunk. If the
beverage is not till thrunk then considered not drinking, such as gargling.
Thus including drinking deed, if drinking khamr beverage meant to omit thirsty,
wheras there is a water that can be drunk. But, if the matter is done because
of necessity or being forced, subject is sentenced.
2. Intention
to ignore law
Element
is fullfilled if someone does deed liquors (khamr) whereas he/she knows that
what he/she has drunk is khamr or musykir. Thus, if someone drinks intoxicating
beverage, but he/she suspects that what he/she has drunk is untoxicating usual
drink then he/she is not hadd sentenced, because there is no intention to
ignore law. If someone doesn’t know that liquor (khamr) is prohibited, however
he/she knows that thing is intoxicating
so opposing law element (Qasad al-Jina’i) is not accomplished yet. But reason
of doesn’t know of law can’t be accepted from person who is living and residing
in another land and Islamic environment.[5]
Saudi Arabia has
good control over its borders due to which it is almost near to impossible to
smuggle any alcoholic drink (Liquor) from the neighboring
countries. In fact, if someone found smuggling alcoholic drink (Liquor) to Saudi Arabia, he is
punished seriously. Foreign delegates, diplomats, and foreign embassies have an
exemption under this subject. They can set quota to import alcoholic drinks
(Liquor) for their personal use. Normally Saudi government sets a quota for
them. It is very difficult to get alcohol (Liquor) in Saudi Arabia and even if
you find one, it will be “home brew” which means homemade. All the ingredients
used to make alcoholic drinks (Liquor) are available in the supermarkets. A
penalty of smuggling alcohol (Liquor) may reach to sentence to death. Those who
supply alcohol (Liquor) to Saudis are liable to highest punishment. We have
heard that some foreigners who were caught trading alcoholic drinks (Liquor)
were punished with 500 lashes. There are also cases when foreigners were
detained from the airport just because they were smelling alcohol (Liquor).
Drinkers of Alcohol (Liquor) are also sentenced to lashes. If you are an
expatriate caught drinking alcohol, the minimum penalty is deportation with 5
years ban.[6]
C.
Prohibition
Theorem of Syurb al-Khamr
Wine according to M. Iqbal is characterized as khamr,
which is generally held to imply all things which is intoxicating. There is
some theorem from Quran from the following verses:
يسئلونك عن ألخمر
وألميسرط قل فيهما اثم كبير و منافع لناس و اثمهما اكبر من نفعهماط
Meaning:
“They
will ask thee concerning wine and the game of chance. Say: In both there is a
great sin, and some benefits for men; but their sin is greater than their
benefits.” (Q.S. Al-Baqarah verse 219).
Then Allah swt
said in another surah as follows:
يا أيها
اللذينآمنوا انم ألخمر وألميسر والانصاب والأزلام رجس من عمل الشيطان فاجتنبوه
لعلكم تفلحونًَ
Meaning:
“O believers, surely wine and games
of chance, (ungodly) shrines, and divining devices, are an abomination of
Satan’s work! Avoid them, that you may prosper.”(Q.S. Al-Maidah verse 90)
At Hadits Rasulullah s.a.w. explained: From Ibnu
Umar r.a., Rasulullah s.a.w. said, ”Every intoxicated is khamr, and every khamr
is haram.”(H.R. Abu Dawud) From another hadits revealed: ”Something that much
intoxicates, then less also haram.”(H.R. Ahmad)
Al-Quran doesn’t assert punishment for the subject.
The matter is lied by prophet through his sunnah fi’iliyyah that punishment
from this jarimah is 40 times “dera”. Abu Bakar r.a. follows this trace. But
Umar bin Khattab sentenced 80 times “dera”. According to Imam Abu Hanifah and
Imam Malik, punishment of drinking khamr is 80 times dera, whereas Imam Syafi’i
is 40 times dera, but he adds then imam may add to be 80 times “dera”. So 40
times is hadd sentence, and the remaining is ta’zir sentence.[7]
D.
Mode
of Evidence of Jarimah asy-Syurbul Khamr
Mode of evidence toward jarimah syurb al-khamr can
be done by the following way:
a. Witness
A
number of witnesses is required to prove jarimah khamr is two eligible persons
of witnessing. Beside that, Imam Abu Hanifah and Imam Abu Yusuf presupposes there
is still a scent of beverage during witnessing time. Both of two imam attach
witnessing with sense of liquor (khamr). Another requirement explained by Abu
Hanifah and his pupils is witnessing or occurence of drinking khamr has not
expired yet. Limit of expired according to Abu Hanifah and Abu Yusuf is
vanishing the sense of liquor.[8]
b. Legitimation
The
existence of legitimation of subject is only one time and doesn’t have to be
replied till four times. Applied requirements toward legitimation in jarimah
zina also applied to jarimah syurb al-khamr. Imam Abu Hanifah presupposes the
legitimation before it is expired, in spite of the other imam doesn’t
presuppose it.
c. Qarinah
Qarinah is a sign. Qarinah is as follows:
1) Beverage
scent
Imam
Malik contends that liquor scent of those who drinks constitutes of evidence of
having done khamr beverage deed, however no witness. But Imam Abu anifah and
Imam Syafi’i contend that beverage scent can’t be an evidence, maybe he/she
actually doesn’t drink, but only gargling, or he/she suspects what he/she has
drunk is water, not khamr.
2) Intoxicating
Someone
who is founded intoxicating is an evidence that he/she has done liquor deed. If
two or more find it, he/she must be sentenced by hadd punishment, i.e. 40 times
“dera”. But Imam Syafi’i doesn’t deem intoxicating as an evidence without
sustained by another evidence. There is another possibility if he/she is being
forced or failure.
3) Vomit
Imam
Malik contends that vomit is a strong evidence than scent of beverage, because
subject will not commit vommiting except after drinking liquor. Imam Abu
Hanifah and Imam Syafi’i doesn’t consider vomitting as an evidence, except
sustained by another proof, for instance liquor scent in his/her vomit.[9]
E. Scourge punishment for Khamr drinker
According to Abdul
Qadir, punishment is:
العقبة
هي ألجزاء ألمقرر لمصلحة ألجماعة على عصيان امر ألشرع.
“Punishment
is a determined revenge to maintain society’s interest, because of violence
upon syara’ requirement.”[10]
Quran forbids khamr
firmly. Punishment for khamr drinker founded in Hadits Rasulullah s.a.w and his
followers, because prophet itself and khulafa’urrasyidin gives punishment for
khamr drinker i.e. scourge. From Anas r.a. said
عن
ا نس بن ما لك رضي الله عنه ان النبي صلى الله عليه وسلم أتي بر جل قد شرب ألخمر
فجلده بجر يدتين نحو اربعين.
Meaning: “From Anas bin Malik r.a., Rasulullah s.a.w said: Surely a man
who drinks liquor has faced to Prophet Muhammad s.a.w. Then he had beat him by
two stem of palm forty times.” (H.R. Muslim)
The purpose of the determining and applying punishment in syariat
Islam as follows:
1.
Preventive
Preventive
is restrain those who commits jarimah in order to not reply his/her jarimah and
also another person who is willing to do the same.
2.
Education
Punishment is to
educate subject of jarimah to be better person and realize his/her failure or
sin. Here, syariah aligns to subject itself. By this punishment, it will
arise in subject his/herself awareness that he avoid jarimah not to due of
being afraid to be sentenced, but because of self-awareness and his/her hatred
to jarimah and wish to get ridha from Allah swt.
CHAPTER III
CLOSURE
A. CONCLUTIONS
Society
system generally ruled by law or regulation which becomes guidance in act and
behave that embodies in commandement and prohibition. But it seems, order and
prohibition is not enough to abandon bad behaviour, so thus it is needed norms,
i.e. decency norm, polite norm, religion norm, and law norm. The purpose of
norms, are to restrict behaving and acting freely of each individual towards
society, is a form of protecting society to its people in living-intercourse.
Norms or rules then known with law, is good written
and unwritten stipulation which rules society regulatin so for everyone who
denies the regulations then he/she will be sentenced as the existing
stipulations. As we know, crime in the world exists incorporate with human
development, especially crime of drinking khamr.
Allah swt has forbidden its adherents to avoid khamr
as a haram thing to drink. Many ulama’ has aprroved it to drink, however there
is some qualifying which is not to be characterized as khamr or not. But we as
a Moslem adherent should not reach khamr as our beverage in order to not to be
annoyed in the judgment day later.
B.
SUGGESTION
In writing this article, writer aware that we have a
full of lack. Critics and suggestions from the reader are very accepted to
maintain quality of the writing to be better later.
BIBLIOGRAPHY
Audah, Abd al-Qadir. 2011. At-Tasyri’ al-Jina’i
al-Islamiy. Juz II. Beirut: Dar al-Kitab al-Arabi.
Ash-Shidieqy, TM Hasbi.
Hanafi, Ahmad. 1993. Asas-asas Hukum Pidana Islam.
Jakarta: Bulan Bintang.
Muslih, Ahmad Wardi. 2005. Hukum Pidana Islam.
Jakarta: Sinar Grafika.
Santoso, Topo.
2016. Hukum Pidana Islam. Jakarta: Amzah.
Siddiqi, Muhammad Iqbal. 1994. The Penal Law of
Islam. New Delhi: International Islamic Publisher.
[1]
Abd Al-Qadir Audah, At-Tasyri’
al-Jinay al-Islamiy, Juz II, (Beirut: Dar al-Kitab al-‘Arabi), hlm. 498.
[2]
TM. Hasbi ash Shiddieqy, Hukum-hukum Fiqh Islam Tinjauan Antar Mazhab,
(Semarang: Pustaka Rizki Putra, 2001), hlm. 211.
[3]
M. Iqbal Siddiqi, The Penal Law of Islam, New Delhi, International Islamic
Publisher, 1994, hlm. 112.
[4]
Ahmad Hanafi, Asas-asas Hukum Pidana Islam, Jakarta: Bulan Bintang,
1993, hlm. 6.
[5]
Ahmad Wardi Muslih, Hukum Pidana Islam, (Jakarta: Sinar Grafika, 2005),
hlm. 74.
[6]
Lifeinsaudiarabia.net, (Accessing date: 24 April 2018)
[7]
Topo Santoso, Hukum Pidana Islam, (Jakarta: Amzah, 2016), hlm. 59.
[8]
Ahmad Wardi Muslih, Hukum Pidana Islam, (Jakarta: Sinar Grafika, 2005), hlm.
78
[9]
Ibid, hlm. 79
[10]
Abd Al-Qadir Audah, At-Tasyri’ al-Jinay al-Islamiy, (Beirut: Dar
al-Kitab al-‘Arabi), hlm. 609.
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