Hisba: Is Egypt a civil or religious state?
parts 1, 2, and 3


1. Hisba

The original function of hisba within Islam is to command goodness and condemn misdeeds. The muhtasib (the person who files a hisba case) is only allowed to challenge fraud and deception. This notion originates in the Sharia, where hisba is used to prevent fraud and deception in the buying and selling of goods and to rid the streets of anything which may bother pedestrians.

Accordingly, Ibn Khaldun, in al-Muqaddima affirms that the judgment of the muhtasib is not limited to a dispute or allegation. He is entitled to investigate and pass judgment in whatever comes to his attention. However, passing judgment is confined to fraud and deception in regular dealings, and measurements and scales in buying and selling goods. The muhtasib is authorized to force dilators to comply with justice in issues that do not involve testimonies or execution of sentences. These issues are not assigned to the judiciary due to their general or minor nature, consequently, they are referred to the muhtasib, which acts as an auxiliary of the judiciary.

The function of hisba evolved to commanding a goodness that is no longer existent, condemning an obvious misdeed, and general reform.[endnote 1] Throughout the majority of Islamic history, hisba was incorporated in the judicial body. However, the sultans began to use hisba as a political tool. This separation of hisba from the judiciary led to numerous negative consequences, most of all the dispute of jurisdiction between different authorities and the violation of judicial jurisdictions by police officers and muhtasibs. Moreover, It enabled sultans to use muhtasibs as a sort of 'secret police' to spy on people and to stop them from mocking the Mamlukes and sultans, which had become widespread.[endnote 2]

2. The Muhtasib

The muhtasib is in charge of hisba, or 'a holder of a religious job'. It is known that the Prophet was the first to introduce the function of the muhtasib which he undertook Himself. He used to inspect markets, commend and condemn. It is also proved that he delegated this task to his followers, such as Said Ibn al-Aas, who worked in Mecca market, and Omar Ibn al-Khattab in Medina. However, the term muhtasib was not used until the reign of Caliph al-Mahdi al-Abbasi (AH 158 - 169).[endnote 3]

3. Capacity in hisba

Hisba is divided into two capacities:

a) Vested capacity (volunteer). This is the person best qualified to command goodness and condemn misdeeds because of their position, e.g., a husband to his wife, a father to his children, or an employer to his employees.[endnote 4]

b) Official capacity (muhtasib). This is based on a decree issued by a prince or caliph, which entails, not only commending goodness and condemning misdeeds when directly required, but also taking the necessary action to enforce this, such as legal action.[endnote 5]

The difference between vested and official capacity. The muhtasib is an officially-recognized post and receives a salary from the state to actively seek out misdeeds, or respond to misdeeds brought to his attention by taking official action (such as filing a court case). The muhtasib should also seek to enhance the deeds of society. He may appoint assistants. However, the volunteer is an ordinary individual, and is not bound to condemn misdeeds or carry out any of the duties of the muhtasib, although he may if he wishes.[endnote 6]

Qualifications of a muhtasib. Some religious authorities expanded the number of qualifications to seven, however, we shall only deal with two. Religion and gender of the muhtasib.

The muhtasib must be a Muslim, since hisba involves the execution of Islamic laws, which are part of a religious belief, based on the Quran, Prophet's Sunna and consensus.[endnote 7]

Some Islamic intellectuals specified that the muhtasib must be male. They stated that a woman should not appear in meetings, mix with men, or undertake negotiations with men on equal terms. However, the majority of Islamic intellectuals believe that a woman may be a muhtasib. Al-Tabari has approved that women undertake all of the above, as written by Malik. Abu Hanifa said that a woman may be a muhtasib in those cases where she is entitled to testify.[endnote 8] In those cases where the Sharia specifies that a witness must be male, women may not be a muhtasib.[endnote 9] Some Islamic intellectuals do not stipulate any conditions for a woman to be a muhtasib.[endnote 10]


Endnotes

1. Al-Mawsuaa al-Dhahabiya l-il-Ulum al-Islamiya, Cairo, Dar al-Ghad, pp. 604, 605.

2. Hassan al-Libidi, Daawi al-Hisba, Markaz al-Tibaa w-al Nashr, Asyut, 1983, pp.168, 169.

3. al-Mawsuaa al-Dhahabiya l-il-Ulum al-Islamiya, p. 605.

4. Abdullah Mabruk al-Nagar, 'al-Hisba wa Dawr al-Fard Fiha,' Magalat al-Azhar, Zi al-Higa AH 1415, p. 53.

5. Ibid. p. 54.

6. Ibid. pp. 55, 56.

7. Ibid. p. 58. See also Abd al-Muneim al-Sharqawi, Nazriya al-Muslaha f-il-Daawa, Cairo, first edition 1948, p.389.

8. Ibid. p. 67.

9. Al-Sharqawi, p.380.

10. Al-Libidi, p. 168.


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