Tobacco Smoking Under Islamic Law: Controversy Over Its Introduction

Dr. Aziz Batran's work, advanced in this volume, is pioneering on two important levels. It is the first work to appear in any language on the tobacco controversy and analyzes it within the frame of the religious and political atmosphere of the first period of its introduction. Secondly, this book has the merit of discussing the importance of legal opinion [fetwa], a neglected institution little known to Western scholarship. Taken together, these two contributions add greatly to our knowledge of the history of West Africa and the Maghrib during the late sixteenth and early seventeenth century. Moreover, by its careful analysis of more than thirty relevant Arabic texts, Dr. Batran's book sets a new standard of research for scholars labouring in the fields of West African and Maghribian history, and offers fertile ground for comparative study in the areas of law and religious history.

There is an old adage in the West [and not unknown in Islamic societies] that "custom is stronger than law". In his highly incisive discussion of the tobacco controversy, Dr. Batran introduces the readers to the struggle between custom [in this example, the swiftly spreading practice of smoking and other uses of tobacco] and law [emerging sharply and heatedly as the "battle lines" of dispute and attitude are drawn over a matter for which there is no legal precedent]. In the West, where scientific investigations have led to a strong consensus on the detrimental effects of cigarette smoking, the matter has been addressed on at least three levels. In the first instance, the pressure of "public opinion" has been brought to bear in determining the threat to the "public good" or welfare. Here, opinion has ranged from strong feelings that smokers should be "quarantined" and special compartments set up in public facilities to isolate the practitioners from those wishing to be shielded from this habit, to the other end of the spectrum which holds that the smoking of cigarettes should be prohibited from public places altogether in the interest of the "public good". Again. to add purchase to the first position, it has been argued that damages should be assessed against those who sell cigarettes for public consumption and liability established against those who persist in a habit now recognized as "unhealthy" and anti-social. Still again, on the legislative level, it has been deemed within public interest to enact laws that restrict or prohibit the production, distribution, and use of the substance under controversy.

As Dr. Batran amply demonstrates, the question of the public good looms largely in the tobacco controversy as it agitated opinion in West Africa and the Muslim West. Indeed, public opinion is carefully orchestrated at both ends of the question of smoking. Nor are observations of a "scientific" nature entirely omitted from the debate. Furthermore, though political and economic considerations abound in Dr. Batran's discussion, in the ultimate, as in the West, moral considerations concerning the "public good" become the overriding determinants especially from the standpoint of the ruling governments. But there is a marked difference here in the way in which the controversy is brought to resolution. In the West, the process of litigation, and especially the "appeal process", is structured on vertical lines - proceeding from a "lower" to a "higher" authority. In Islamic societies, while "fiction" of verticality is carefully maintained and the process reversed [decisions, "nawazil", are seen to descend from on high through the medium of accepted authority], the actual resolution of such matters is rather more "horizontal" - proceeding across society as opinion is canvassed and strengthened by the swelling representation of individuals and parties on one side of the issue against those who take up the opposite view. Hence, the "legal opinion" fetwa is no more than a point of view, but based, at bottom, on legal, which is to say, "moral" authority of