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(e.g. PhD, MPhil, DClinPsychol) at the University of Edinburgh. Please note the following terms and conditions of use: This work is protected by copyright and other intellectual property rights, which are retained by the thesis author, unless otherwise stated. A copy can be downloaded for personal non-commercial research or study, without prior permission or charge. This thesis cannot be reproduced or quoted extensively from without first obtaining permission in writing from the author. The content must not be changed in any way or sold commercially in any format or medium without the formal permission of the author. When referring to this work, full bibliographic details including the author, title, awarding institution and date of the thesis must be given. THE DEVELOPMENT OF THE THEORY OF THE INSTITUTION OF lflSBAH IN MEDIEVAL ISLAM BY AHMAD BIN CHE YAACOB THESIS SUBMITTED TO THE UNIVERSITY OF EDINBURGH FOR THE DEGREE OF DOCTOR OF PHILOSOPHY (Ph.D) FEBRUARY 1996 Ill ACKNOWLEDGEMENT First and foremost, I wish to express my profound gratitude to my supervisor, Dr. I.K.A. Howard for his invaluable assistance, encouragement and patience throughout the period of this study. I also would like to take this opportunity to thank Dr. M. V. McDonald for his conscientious reading of this thesis and for his suggestion for alterations and additions. Similarly, I wish to thank Dr. Yasin Dutton for his help and criticism. Needless to say, for the remaining errors and omissions, I hold myself fully responsible. My gratitude is also due to other members ofstaffofthe Department of Islamic and Middle Eastern Studies in particular and those of the University of Edinburgh in general. Secondly, I wish to express my indebtness to my employer in Malaysia, MARA Institute of Technology for making this study possible under the Young Lecturer Scheme Programme (Skim Tenaga Pengajar Muda). I also would like to thank the Public Service Department in Malaysia for granting me a scholarship. I need to mention here that towards the end of my study, my family and I experienced some financial difficulties, and thus we would like to express our indebtness to several people, especially our extended family in IV Malaysia for providing us with the money that we badly needed. Earlier on, we were touched by the kindness and generosity of our friends and colleagues in Edinburgh for their material support. Finally, I wish to dedicate this study to my family. I am very grateful and thankful to have Rajiah bte Udin and Che Yaacob bin Yusuf as my parents for without their guidance and kindness I would never come as far as I have. Words cannot express the gratitude which I owe to my wife, Safiah bte Mohamed who abandoned her own promising career by becoming a housewife and mother. I also would like to dedicate this study to my charming daughters, Mashitah and Sarah, who at their tender ages have suffered several difficulties and have been temporarily separated from their beloved father. Ahmad bin Che Y aacob Department of Islamic and Middle Eastern Studies University of Edinburgh 13 Ramadan 1416 I 2 February 1996 0 V ABSTRACT The main focus of this study is to examine the development of the theory of the institution of l:J,isbah in medieval Islam. In particular, the study will provide an analysis and paraphrase of the work of Y al}.ya ibn cumar (d. 289/901) which is considered the earliest source on the subject. The study is divided into seven chapters, an Introduction and a Conclusion. The Introduction explains the aims of this study and is followed by the discussions on the origin of the role of market supervision and the definition of l:J,isbah. Next, works of medieval Muslim scholars and studies made by the contemporary scholars are reviewed. Chapter One discusses the life and career ofYal}.ya ibn cumar, followed by an analysis of the two texts of his work; Kitab Al:J,kam al-Suq and Kitab al-A}Jkam fi Jamf AJ;wal al-Suq. In Chapter Two, a paraphrase of these two texts is made. Chapter Three deals with the elements of J;isbah, covering the discussions on the person carrying out the duty of l:J,isbah (i.e. the mul;tasib ), the person to be supervised, subject of l:J,isbah's supervision and stages of l]isbah's penalties. The remaining four chapters examine the duties of the mui:J,tasib. The duty of the mul}tasib to supervise the market is discussed in Chapter Four and Chapter Five examines his duty to supervise moral and religious behaviour. The discussions in Chapter Six is concerned with the supervision of medical professions while Chapter Seven deals with the administration of the city. This is followed by a Conclusion which summarizes the discussions previously made and presents the findings of this study. VI TABLE OF CONTENTS DECLARATION 11 ACKNOWLEDGEMENT iii ABSTRACT V TABLE OF CONTENTS vi LIST OF FIGUREStrABLES xviii NOTE ON TRANSLITERATION xix LIST OF ABBREVIATIONS XX INTRODUCTION 1- 36 1. Origin of the role of market supervision .................................................. 2 2. Definition of l}isbah 2.1. Literal meaning of l]isbah ........................................................... 13 2.2. Technical meaning of l]isbah ....................................................... 16 3. Review of literature by medieval Muslim scholars ................................ 21 4. Studies on works of l]isbah by contemporary scholars ........................... 33 CHAPTER ONE: An analysis of the work of the Malikl scholar Y al;ya ibn CU mar al-Kinani al-Andalusi 37.77 1.1. Sources ..................................................................................................... 37 1.2. Life and career ofYalJya ibn cumar ...................................................... 38 vii 1.3. The transmitters .................................................................................... 47 1.4. An analysis of the texts 1.4.1. The lsntid ................................................................................... 49 1.4.2. The styles and the approaches ................................................. 50 1.4.3. The important elements in the texts ....................................... 70 CHAPTER TWO: A paraphrase of the work ofYalJ.ya ibn cumar 78- 143 Introduction .................................................................................................... 78 Chapter One: A Statement on matters which require markets to be supervised ............. 79 Chapter Two: Legal decisions on matters related to measure of capacity (mikyal), weight (mfzan), amdad, aqfizah, arf6til and awtiqf .................................................. 81 Chapter Three: Legal decisions on price-fixing (tascfr) .......................................................... 84 Chapter Four: A legal decision on merchandise-tax (maks) levied by the millers on the public ............................................................................................................... 90 viii Chapter Five: A legal decision on the negligence of the millers ....................................... 90 Chapter Six: Legal decisions on a matter related to markets that are near to the city. 91 Chapter Seven: Legal decisions on matters related to figs which are rubbed with oil (madhun bi al-zayt) and milk when water was added to it ........................ 92 Chapter Eight: Legal decisions on a matter related to sellers of grain (ljannatin) ........... 93 Chapter Nine: Legal decisions on the sale of fruit in the market before it ripens ............ 94 Chapter Ten: Legal decisions on the sale ofbread that contains stones (ljijarah) .......... 96 Chapter Eleven: Legal decisions on the sale of bread which was insufficient in weight ...... 97 lX Chapter Twelve: A legal decision on bakers who had mixed wheat of good quality with a lesser ............................................................................................................... 99 Chapter Thirteen: Legal decisions on a miller who ground wheat together with remnants found in the grinder (midl;anah) ............................................................................ 100 Chapter Fourteen: Legal decisions on vendors who falsify the measures, cheating in food sold and other related matters ............................................................................ 101 Chapter Fifteen: Legal decisions on the practice of mixing cow's milk with that of goats (ghanam) ........................................................................................................ 104 Chapter Sixteen: A legal decision on the sale of bitter cucumber (qiththtiJ) ......................... 106 Chapter Seventeen: Legal decisions on the sale of honey of good quality which had been mixed with that of a lesser and other related matters ......................................... 106 X Chapter Eighteen: A legal decision on a matter related to mixing old oil with new ............... 107 Chapter Nineteen: Legal decisions on matters related to mixing the goods and action to be taken against butchers and others who practised such an act ................. 108 Chapter Twenty: A legal decision on a matter related to blowing into carcasses ................. 111 Chapter Twenty One: A legal decision on a matter related to the butchers and the green-grocers (baqqalfn) who were exclusively permitted to sell their goods .................. 113 Chapter Twenty Two: A legal decision on the sale of tops and dolls ............................................. 114 Chapter Twenty Three: Legal decisions on the sale of unripe dates (rutab) soaked in vinegar .... 114 Chapter Twenty Four: Legal decisions on the sale of shrunken clothes ......................................... 116 Xl Chapter Twenty Five: Action taken against missing vendors ......................................................... 116 Chapter Twenty Six: Legal decisions on matters that are disapproved during a wedding banquet (walfmah) ....................................................................................................... 117 Chapter Twenty Seven: A legal decision on a matter related to cooking pots (qudur) used in making a fermented fruit juice (nabfdh) ................................................................... 120 Chapter Twenty Eight: Legal decisions on the use of public baths .................................................. 120 Chapter Twenty Nine: Legal decision on crying aloud over the death of a relative ...................... 121 Chapter Thirty: A legal decision on women who visiting graves .......................................... 122 Chapter Thirty One: A legal decision on women who were wearing shoes that makes noises .. 122 xii Chapter Thirty Two: A legal decision on the act of spilling water in front the house and the shops and the responsibility of cleaning the market place .................................. 123 Chapter Thirty Three: Legal decisions on a door of a house in a narrow lane and on the liability of the person who dug a pit .......................................................................... 124 Chapter Thirty Four: Legal decisions on matters related to the Jews and the Christians ......... 125 Chapter Thirty Five: Legal decisions on sale by a blind person and those suffering from serious illnesses ......................................................................................................... 126 Chapter Thirty Six: A legal decision on a matter related to people who are suffering from leprosy ............................................................................................................ 126 Chapter Thirty Seven: Legal decisions on measures of capacity and weights ................................ 127 xiii Chapter Thirty Eight: A legal decision on fixing the price by force ............................................... 128 Chapter Thirty Nine: Legal decisions on the vendors who are cheating ....................................... 128 Chapter Forty: A legal decision on fixing the price of food during an inflation ................. 129 Chapter Forty One: A legal decision on hoarding ........................................................................ 130 Chapter Forty Two: Legal decisions on the sale to a stranger .................................................... 131 Chapter Forty Three: A legal decision on the sale of food sold in jars and containers ................ 131 Chapter Forty Four: A legal decision on the sale of clothes infested with lice ........................... 132 Chapter Forty Five: A legal decision on the sale of ashes used to whiten spun thread ........... 132 xiv Chapter Forty Six: A legal decision on a matter related to money-changing ........................... 133 Chapter Forty Seven: Matters related to the sale of figs, beans and the discussion of wages for the workers .......................................................................................................... 134 Chapter Forty Eight: Legal decision on the slaughtering of sheep .............................................. 135 Chapter Forty Nine: Statements on basic house equipment and the wedding outfit (jihiiz) for the bride ............................................................................................................... 136 Chapter Fifty: Statements on qadhf ..................................................................................... 137 Chapter Fifty One: A statement on things that can be taken by the market supervisor (a/;ib al-suq) from the vendors ............................................................................... 138 Chapter Fifty Two: Statements on matters concerning immoral behaviour ............................. 138 XV Chapter Fifty Three: Legal decisions on the sale of meat together with hearts and stomach ... 139 The problem of price-fixing .......................................................................... 139 CHAPTER THREE: The elements of }Jisbah 144- 187 3.0. Introduction ............................................................................................ 144 3.1. The person carrying out the duty of l;isbah ........................................ 145 3.1.1. Qualification of the mul}tasib .................................................. 146 22.214.171.124. A sinner ({asiq) carrying out the duty of !Jisbah ...... 154 18.104.22.168. Ordinary people carrying out the dutyofl],isbah ..... 157 184.108.40.206. Capability of carrying out the duty of !Jisbah .......... 159 3.2. The person to be supervised (mu!;tasab calaihi) ...................... 162 3.3. Subject of supervision (mu}Jtasab {fhi) ...................................... 165 3.4. Stages (darajat) of the penalties of l}isbah ............................... 169 CHAPTER FOUR: The duties of the mu!;tasib 188- 211 4.0. Introduction ............................................................................................ 188 4.1. The duty to supervise the market ........................................................ 190 4.1.1. The duty to supervise the price of the goods ......................... 192 4.1.2. The duty to supervise the use of correct weights and measures ...................................................................................... 194 XV1 4.1.3. The duty to supervise various kinds of economic occupations .......................................................................................... 198 22.214.171.124. The duty to prevent unlawful sale transactions ...... 199 22.214.171.124. The duty to protect the public from adulteration of goods, and cheating and negligence by the vendors ............. 204 CHAPTER FIVE: The duty to supervise moral and religious behaviour 212- 240 5.0. Introduction ............................................................................................ 212 5.1. The acts of worship ................................................................................ 213 5.2. Immoral behaviour ................................................................................ 225 5.3. Possession of unlawful property ........................................................... 231 CHAPTER SIX: The duty to inspect health profession 241- 281 6.0. Introduction ............................................................................................ 241 6.1. The duty to supervise the makers of syrups (sharrabin) and the pharmacists (ayadilah) ............................................................................... 246 6.2. The duty to supervise the druggists (cattarfn) ................................... 263 6.3. The duty to supervise the physicians (akibbaJ) ................................... 278 CHAPTER SEVEN: The duty to administer the municipal control of the city 282- 296 7.0. Introduction ............................................................................................ 282 xvii 7.1. The duty to maintain the public utilities ............................................. 283 7.2. The duty to settle disputes between neighbours ................................. 284 7.3. The duty to preserve law and order ..................................................... 285 CONCLUSION ................................................................................... 297-305 APPENDIX A: Figure 1.1. The relationship between the Maliki scholars and their teachers .................................................................................... : .... 306 APPENDIX B: Figure 1.2. The most frequent type of isnad of the text of second version ............................................................................................... 307 APPENDIX C: Figure 1.3. The ril;lah of Ya}Jya ibn cumar al-Kinaru al-Andal us! ......................................................................................................... 308 APPENDIXD: Figure 1.4. The presumed age ofYal}.ya ibn CUmar ........ 309 BIBLIOGRAPHY ................................................................................ 310- 327 xviii LIST OF FIGURES/TABLES I) Figures: a) Figure 1.1. The relationship between the Maliki scholars and their teachers .......................................................................................................... 306 b) Figure 1.2. The most frequent type of isnad of the text of second version ............................................................................................................ 307 c) Figure 1.3. The ril}lah ofYattya ibn cumar al-Kinam al-Andalusi ....... 308 d) Figure 1.4. The presumed age f a ~ y a ibn cumar ............................... 309 Il) Tables: a) Table 1.1. The differences between the two texts ............................... 58-70 b) Table 3.1. Types of penalties according to Ya.lJ.ya ibn Umar ............. 181-5 c) Table 6.1. Names of the syrups mentioned by Ibn al-Ukhuwwah .. 248-253 xix NOTE ON TRANSLITERATION The transliteration system used in this thesis is that used by the Encyclopaedia of Islam with some exceptions for the sake of convenience. The exceptions are as follows; (i) th instead of th (ii) j instead of .ill (iii) kh instead of kh (iv) dh instead of dh (v) sh instead of sh (vi) gh instead of gh (vii) q instead of Ji ( viii) iyy instead of 1Y (ix) taJ marbutah has been written as "h" at the end of a word when it is not part of the icJafah construction, in which it is written as "t". XX LIST OF ABBREVIATIONS The abbreviation used below only to the works regularly referred to, and the bibliographical data of the other works are provided in their first occurrence. Al]kiim Al]kiim al-Dibiij El(l) EI(2) Elias First El Glossary Hans Wehr Hava Ibn al-Farra), al-Al}kam al-Sultaniyyah Al-MawardY, al-Al;kam al-Sultaniyyah wa al-Wilayah al-Dmiyyah Al-ZiriklY, al-A clam; Qamus Tarajim li Ashhar al-Rijal wa al-NistiJ Ibn Far}J.iin, Kittib al-Dibtij al-Mudhahhab fi Macri{ah Acyan cuzama! al-Madhhab Encyclopaedia of Islam (1st edition) Encyclopaedia of Islam (2nd edition) Elias A. Elias et al., Elias' Modem Dictionary; Arabic - English E.J. Brill's First Encyclopaedia of Islam Maimonides, Glossary of Drug Names Hans Wehr, A Dictionary of Modem Written Arabic J.G. Hava, al-Fara!id al-Durriyyah, Arabic-English Dictionary al-lfisbah al-lfisbah IC ll]yrt IQ al-liibah al-Istriib JESHO JRAS JSS al-Kindi Lane Lis an Maciilim Medical Med. His. Munjid xxi Ibn Taymiyyah, al-lfisbah tr al-Islllm Al-Saqati, Kitab {C Adab al-lfisbah Islamic Culture Al-Ghazali, ll}yaJ cuzum al-Dfn The Islamic Quarterly Ibn !}ajar, al-lfiabah fi Tamyiz Ibn cAbd Barr al-Qurtubi', al-Istfab fi Macrifat al- Journal of Economic and Social History of the Orient Journal of the Royal Asiatic Society Journal of Semitic Studies Martin Levey, the Medical Formulary of al-Kindi E. W. Lane, Arabic-English Lexicon Ibn Lisan al-cArab Ibn al-Ukhuwwah, Ma0lllim al-Qurbah (r Al}kam al-lfisbah J.S. Graziani, Arabic Medicine in the Eleventh Century Medical History Munjid fC al-Lughah Qul]at RI EEl Rise RSO 'fabaqiit Tafsir Tariitib Tartfb al-Madarik Tiirikh Tiirikh The text (first) The text (second) al-'furuq Risiilah xxii Al-Khusharu, Quqiit Qurtubah wa cuzama/ l(rfqiyyah Revista del Instituto Egipcio de Estudios Islamicos George Makdisi, Rise of Colleges Revista degli Studi Orientali Makhliif, Shajarat al-Nilr al-Zakiyyah {C'fabaqat al-Malikiyyah Al-'faban, Jamf al-Bayan fC Ta!wu al-QurYan Al-Kattani, al-lfukilmah al-Nabawiyyah al-Musamma al-Taratrb al-Idariyyah Qagi c!yacj, Tartrb al-Madarik wa Taqrfb al-Masalik li Macrifah A clam Madhhab Malik Ibn al-FaraQi, Tarfkh az-cuzamaJ wa al-Ruwat li al-cllm bi al-Andalus Al-'faban, Tarfkh al-Rusul wa al-Muluk YalJ.ya ibn cumar, Kitab Al}kam al-Silq YalJ.ya ibn cumar, Kitab wa al-Al}kam {f Jamf Ahwal al-Silq Ibn Qayyim al-Jawziyyah, al-'.furuq al-lfukmiyyah {f al-Siyasah al-Sharciyyah Ibn c Abdun, Risalah fi al-Qaqo! wa al-Ifisbah Nihiiyah Nihayah Wahbah xxiii Ibn al-Athir, al-Nihayah fi Gharfb al-Ifadfth wa al-Athar Al-Shayzan, Kitab Nihayat al-Rutbah tr A}Jkam al-lfisbah Wahbah al-Zuhayli, al-Fiqh al-Islamf wa Adillatuh 1 INTRODUCTION This thesis attempts to examine the role of market supervision and the development of the function of the mul;tasib1 who becomes identified with the market supervisor. In particular, the thesis will analyse the two texts of the work of Yal}.ya ibn cumar (d. 289/901)2, which are entitled Kitab Al}ktim al-Saq3 (Book on legal decisions related to the market) and Kitab a l N a ~ a r wa al-Al;ktim {f Jamf Ahwal al-Suq4 (Book on supervision and legal decisions on matters related to the market). It should be noted here that this work ofYal}.ya ibn cumar was the earliest of its kind dealing with the subject of market supervision5. 1See Reuben Levy, "The Muljtasib", El(l). vol. 3, pp. 702-3. Cl. Cahen and M. Talbi, "lfisba". El(2). vol. 3, pp. 485-493. 2His life and career will be discussed in Chapter One pp. 38-47. 3yal}ya ibn CUmar, "Kitab Al;kam al-Saq". ed. M.A. Makkl, in Revista del Instituto Egipcio de Estudios Islamicos. vol. 4, 1956. pp. 59-151. This work ofYal}ya will be referred to as a text of the first version throughout this study. 4ya}J.ya ibn 'V mar, Kitab al-Ncqar wa al-Al]kiim fi Jamr Al]wiil al-Suq, ed. Farl}at al-Dashrawi, et al. Tunisia, 1975. This work ofYaQ.ya will be referred to as a text of the second version throughout this study. 5See Cl. Cahen and M. Talbi, "lfisba". El{2). vol. 3, p. 486. However, the writers only mention one text of the work ofYa}J.ya ibn CUmar, i.e. Kitab Al],kdm al-Suq. 2 1. Origin of the role of market supervision There have been many studies carried out by contemporary scholars to trace the possible origin of the role of market supervision in the early and medieval Islamic periods. Amongst these scholars was G.E. Von Grunebaum who suggests that mul;tasib was an Islamized version of the Roman agoranomos adopted by the Muslim which was known as til}ib al-suq6. The same was the opinion of Schacht and he suggests that the transformation took place during the cAbbasid period7. However, according to Cl. Cahen and M. Talbi, the last inscriptional record of the agoranomos dates about three centuries before the Arab conquest8. Thus, on this basis, Foster denies the idea of continuity of the Muslim al-suq from the Roman agoranomos9 In a similar manner, R.P. Buckley traces the role of the market supervisor back to the time of the Prophet10 6G.E. V on Grunebaum, Classical Islam. transl. by Katherine Watson, pp. 100-1. However, Crone considered Gaudefroy-Demombynes as the first scholar to suggest that the mul}tasib perpetuates a Greco-Roman official which was made in his study in 1939. Partricia Crone, Roman, Provincial and Islamic law.1987, Appendix 3, p. 107. See Gaudefroy-Demombynes, "Sur les origines de lajustice musulmane",Melanges syriens offerts aReneDussaud, Paris, 1939, vol. ii, p. 828. 1Schacht,Introduction to Islamic Law. p. 25. Crone, however, suggests that Schacht was only repeating the idea putted forward by Gaudefroy-Demombynes without mentioning his name. Crone, loc.cit. A similar study is made by Nicola Ziadeh, Urban Life in Syria. p. 118. 8Cl. Cahen and M. Talbi, "lfisba", El(2). vol. 3, p. 487. 9Benjamin Foster, "Agoranomos and Mul]tasib", JESHO. 1970, pp. 136, 139. 10R. P. Buckley, "The Mul]tasib", ARABICA. 1992, pp. 60-62. Similar studies were carried out by Ishaq Musa al-Husaini, "ljisba in Islam".IQ. 1966, pp. 69-70. al-Qasimi, Nitiim al-lfukm fi al-Sharrah wa al-Tarfkh al-Islamf. 1983, vol. 2, pp. 587-593. 3 It seems likely that the Prophet who was involved in all aspects of the lives of the Muslims would be concerned with wrongful activities in the market. In this way, al-Taba:rr suggests that the reason for the revelation of surat al-mutaffi(fn (chapter 83) was that the Prophet had visited the market and had witnessed vendors dealing fraudulently. As a result of this, according to al-Taba:rr, their conduct improved when the surah was revealed to them11. In fact, verses one to six of sarat al-mutaffi{rn 12 which strongly condemns unfair dealing in weights and measures, should give a good reason for responsible persons to ensure that such kind of behaviour and the like would not happen in their market. It was reported that the Prophet had visited the market and found a vendor had watered his grain so that its weight was heavier. So the Prophet said, "He who deceives us is not one of us"13. Similarly, cumar ibn al-Khattab was also reported to have visited the market and punished those vendors who were found cheating or 11AI-'fabari, Tafsir. vol. 12, p. 483. In defining the word mutaffif, al-'fabari refers to him as a person who gives deficient weights and measures which would involve insufficiency in calculation (ljisbah) and in quantity (cadad). Ibid.
~ h e verses read, "Woe to those that deal in fraud. Those who, when they have to receive by measure from men, exact full measure. But when they have to give by measure or weight to men, give less than due. Do they not think that they will be called to account? On a Mighty Day. A Day when all mankind will stand before the L<>rd of the World?". Al-Qur>an. 83: 1-6. There are also other verses of the Qu,Jan which dealt with the matter. In particular, sarah 6: 152, which reads: "Use a full measure and a just balance" and in surah 7: 85, "Give just weight and measure, and do not withhold from the people the things that are their due and do no evil on the earth". 13AI-Tirmidh1, Sunan. vol. 3, p. 597. Ibn Majah, Sunan. vol. 2, p. 749. 4 dealing fraudulently14 The same action was taken by cAlr ibn Abr al-'falib15. Yal}.ya ibn cumar regards the duty of checking the deficient weights and measures as one of the responsibilities of the market supervisor16 On another occasion, the Qu,J an has condemned those who are hoarding their property when it says: "Those who hoard up (yaknizu) gold and silver and do not spend them in His way, announce to them a painful torment"17. In relation to this verse, al-Bukharr reported a tradition from the Prophet which explains the meaning of the torment, that they will be resurrected in the form of bald-headed snakes (shujac aqrac)18 On this matter, the Qu,Jan also says in another verse: "What God has bestowed on His Messenger and taken away from the people of the townships, belongs to God, His Messenger, the kindred, the orphans, the needy and the wayfarer; so that the wealth would not be circulated among the weal thy among you"19. This seems to be related to the Prophet's denunciation of 14Al-'fabari, Tiirikh. vol. 5, p. 23. Ibn al-Jawz1, Maniiqib cumar ibn al-Khatfiib. p. 112. 15In fact, much evidence of the practice of c Al1 on this matter can be found in a Zaydl manual of J;isbah by al-Nair li al-!Jaqq (d. 304 A.H.). Accordingly, Serjeant held that the Zaydi manual is in many occasions referring to the practice ofcAli, whereas, the Sunnis' works are mentioning the actions of CUmar ibn al-Khattab. R.B. Serjeant, "A Zaydr manual". RSO. p. 7. 16yal]ya ibn CUmar, The text (first). p. 105. The text (second). pp. 37, 38, 39. 17 Al-Qu,J iin. 9: 34. 18 Al-Bukhari, fial]il]. vol. 6, p. 146. 19Al-Qur>an. 59:7. 5 those vendors who were hoarding Ci/Jtikar) in order to obtain a higher price. The Prophet was reported as saying: "No one hoards but the traitors (i.e. the sinners)"20. cumar ibn al-Khattab also deals with the matter, and Malik ibn Anas reports that he said: "There is no hoarding in our market, and men who have excess gold in their hands should not buy up one of God's provisions which he has sent to our courtyard and then hoard it up against us. One who brings imported goods through great fatigue to himself in the summer and winter is the guest of cumar. Let him sell what God wills and keep what God wills"21 In the same way, Malik ibn Anas indicates that cuthman ibn CAffan was also reported to have forbidden
J. Kister, "The market of the Prophet", JESHO. 1965, vol. viii, pp. 274, 276. 26Abu Da)ud, Sunan. vol. 2, p. 98. YaQ.ya ibn CUmar, The text (second). p. 43. Ibn al-Ath'ir, Nihayah. vol. 2, p. 368. 27 Al-Muzani, Printed in al-Shafic1's al-Umm. vol. 8, p. 191. Ibn Taymiyyah, al-Ifisbah. p. 19. Ibn Qayyim al-Jawziyyah, al-'furuq. p. 261. 7 fat!; caza saq Makkah28 Also, cumar ibn al-Khattab appointed al-Sa'l:d ibn Yaz!d and cAbd Allah ibn cutbah ibn Masciid over the market in Medina29 Later, CUthman ibn cAftan is said to have appointed al-:ijarith ibn al-ljakam over the market in Medina30. Thus, during this time, the person appointed to the duty ofmarket supervision was known as camil caza al-suq, as was mentioned by Sac!d himself when he said that he was an camil caza al-suq in the time of cumar31. It is interesting to notice that the word istacmala which is derived from camila was used to denote the appointment ibn Sacyd by the Prophet. The term camil had, in fact, been used to refer to other officials appointed by the Prophet and the early caliphs32 In this way, it was reported that the Prophet sent cAl! ibn Ab! Talib as an ciimil to collect taxes33. Later the term ciimil had been used 0 28Ibn cAbd al-Barr al-Qurtubr, al-lstt'iib fi Macrifat Printed on the margin of Ibn I;.Iajar al-cAsqalani, al-ltJiibah fi Tamyiz vol. 1, p. 285. 29Ibn Sallam, Kitiib al-Amwiil. p. 533. Ibn cAbd al-Barr al-Qurtubr, al-lstriib. vol. 2, p. 576. Kanz al-cUmmiil. vol. 5, p. 815. 30AI-Baladhuri, Ansiib al-Ashriif. vol. 5, p. 47. 31Ibn Sallam, Kitiib alAmwiil. op.cit. 32In this manner, A. Aziz Duri maintained that the term camil signifies tax-collectors, agents and prefects who were appointed by the government. In its literal meaning, the word ctimil denotes the Muslim who performs the works demanded by his faith, and is often used in conjunction with the term calim as an epithet of pious scholars. Technically, the term camil has two meanings: one of which signifies an active partner in a contract of muqarabah and qiracJ, whereas the other meaning refers to a government agent or official, in particular the collector of taxes. In the second meaning, it is found that the Prophet had appointed representatives among the tribes or in the areas under his authority in order to collect zakiit from Muslims and the tribute from non-Muslims, some of whom had political duties. A.A. Duri, "cAmil". El(2). vol. 1, pp. 435-6. 33See Watt, Mul]ammad in Medina. Appendix pp. 366-7. 8 to refer to a provincial governor or administrator. This meaning seems to be found during the caliph cumar ibn al-Khattab34 Apart from the camil caza al-suq, there was another official known as carf{who was also believed to have been involved in some aspects of market supervision. Ibn defines the carif as follows: "He is in charge of his group or clan, dealing with their social affairs and keeping the ruler informed of the particulars of his people35 In fact, the position ofcarr{was known in the pre-Islamic period36 Thus, Muhammad Yusuf Faruqi suggests that the Prophet maintained the of cartifah as a social institution and utilized it in establishing the social system of Islam37 The Prophet was reported to have appointed some of his Companions as carrf8 During the time of the Prophet and the early caliphs, the carr{was the leader of his people and occasionally he collected the zaktit from them. It seems that from the time ofcUmar ibn al-Khattab onwards the carf{had been given military authority and he was also responsible for the interests 34A.A. Duri, op.cit. 35Ibn Lisiin. 11: 143. 36Saleh A. El-Ali and Cl. Cahen, "cArif'. El(2). vol. 1, p. 629. Muhammad YusufFaruqi, "Social and political practices at the time of the Prophet: A study of the institution ofcarafah and naqabah". in Essays on Islam. ed. by H.M. Said. p. 200. 37M.Y. Faruqi, loc.cit. p. 201. 38See AQmad ibn ijanbal, Musnad. vol. 3, p. 215. Ibn ijajar al-cAsqalani, al-lfliibah. vol. 1, p. 251. Al-Kattani, Tariitib. vol. 1, p. 236. 9 of orphans and foundlings39. On some occasions, it is mentioned that the carffwas also concerned with ahl al-dhimmah. However, the most frequent use of the title of carif in the medieval period is to denote the head of a guild, who is usually referred to in the West as amfn. It should be noted here that later during the 6th century A.H., carf{and amm were mentioned in l}isbah manuals where they became asisstants to the mul}tasib40 Earlier on, the camil caza al-silq was known as ti/;J,ib al-silq and occasionally caza al-silq. The work of Ya]Jya ibn cumar (d. 289/901) has provided some useful evidences concerning the matter. It is mentioned that the market supervisor during his time was known as ti/;J,ib al-silq and caza al-suq41. It is indicated that Ya]Jya ibn cumar was asked in person by the til}ib al-silq (market supervisor) of Siisah (Sousse)42, while a written petition was made to him by the til}ib al-silq of Qayrawan43 Ya}J.ya ibn cumar also referred to the market supervisor during the time of 39Thus, al-Bukhari relates that a man called Abu Jamilah went to CUmar ibn al-Khattab in order to apply for an allowance for a baby. The baby was a foundling (laqft) of an unkown parent. At first CU mar suspected the veracity of his claim, but when his carif told CU mar that Abii Jamilah was a good person (innahu rajul !Jiililj), CUmar was satisfied and he granted his request. Al-Bukhan, vol. 1, p. 231. 40Saleh A. El- A11 and Cl. Cahen, "cArif'. El(2). vol. 1, p. 629. 41YaQ.ya ibn CUmar, The text (first). pp. 103, 108, 112, 128 and 129. The text (second). pp. 31-2, 33-4, 37, 38, 40, 47, 57, 73, 96, 98, 103, 104 and 115. 42yal}ya ibn CUmar, The text (first). p. 129. The text (second). p. 98. 4:YaQ.ya ibn CUmar, The text (first). p. 128. The text (second). p. 96. 10 Malik ibn Anas as al-suq44 As for the title ntiiir caza al-suq, Ya}J.ya ibn cu mar seems to refer to him when explaining the theory of the person responsible for carrying out the role of market supervision. Thus, it seems that the term caza al-suq was also used to denote the Governor (wali') and the qacJi' who were supervising the market45 This is because Y a}J.ya ibn cumar maintained that the market supervision was the responsibility of the Governor, the qaqi' and the market supervisor. On this basis, it seems probable that during the time ofYa}J.ya ibn CUmar, the institution of J;isbah was only at a preliminary stage. In this way we find that the later l;isbah literature have shown some resemblances to this work ofYallya ibn cumar, especially in matters dealing with the duties to be carried out by the mulj,tasib and the penalties for offenders. Thus, this work of YalJ.ya. ibn cumar has provided evidence for the origin of the mul;tasib who was believed to have inherited the role of the former al-silq. However, there seems to be no clear evidence to suggest when the transformation from al-suq to mul:Jlasib took place. Earlier on, al-Baladhuri seems to indicate that the office ofmul;tasib was introduced by the Umayyad Caliph Hisham ibn cAbd al-Malik (reg. 105/724-125/7 43), who entrusted the duty of J;j,isbah over the market to 44yaQ.ya ibn CUmar, The text (first). p. 132. The text (second). pp. 77, 103. 45yaQ.ya ibn CUmar, The text (second). pp. 47 and 73. 11 Mahdi ibn cAbd al-Ral].man and later to Iyas ibn Mucawiyah46 During the cAbbasid period, al-'fabari mentioned that in 157/774 caliph al-Maniir (reg. 136/754-158/775) appointed Abii Zakariyya) Yal}.ya ibn cAbd Allah to be in charge of l}isbah, and he was held responsible for the market of Baghdad. It should be noted that al-'faban referred to him as mul],tasib, and the post was known as l}isbah 4 7 On another occasion, he also referred to Abu Zakariyya) Ya}J.ya ibn cAbd Allah as a mul]iasib 48 Al-Taban also indicates that the institution of mul]tasib continued during the caliphate of al-Mahdi (reg. 158/775-169/785), where cAbd al-Jabbar was known to be the holder of the position49. Likewise, Stanley Lane-Poole suggests that Ismacil ibn ibn cAli al-cAbbasi was believed to have been appointed to the office in 169 A.H 50 However, Ismacll was also believed to be an camil al-kharaj (tax collector) or a Cil}ib al-shur{ah (police)51 Perhaps the most celebrated cAbbasid mu/;}tasib was Abu Sacid al-ltakhrl who lived during the reign of the caliph al-Muqtadir (reg. 295/908-320/932). However Abii 46Siham citing al-Baladhuri, Ansiib al-Ashriif. manuscript. p. 290. Siham Abii Zayd, al-Ifisbah fi p. 63. I have not been able to check this reference. 47 Al-'fabari, Tiirfkh. ed. M. Abii al-FaQ.l Ibrahim. vol. 7, p. 653. See also al-'faban, The History of al-al-'fabarf, transl. by Hugh Kennedy. vol. xxix, p. 9. 48 Al-'fabari, Tiirfkh. vol. 8, p. 52. See also transl. by Hugh Kennedy, loc.cit. p. 78. 49 Al-Taban, Tiirfkh. loc.cit. See also trans. by Hugh Kennedy. loc.cit. p. 214. 50Stanley Lane-Poole, A History of Egypt in the Middle Ages. London, 1925, vol. vi, p. 53. See also Siham Abii Zayd, al-lfisbah fi Mifr. 1986, p. 62. 51Siham Abu Zayd, loc.cit. 12 Sac!d was also a qacjf52 Earlier on, it is also mentioned that SalJ.nful ibn Sacid (d. 240 A.H.) had performed the function of l}isbah when he was appointed as a qaqr53 It should be noted here that Salplu.n ibn Sa'1:d was a teacher ofYal.J.ya ibn cumar. Given the fact that the institution of l}isbah seems to have originated during this period, it is more likely that the mu/;Jtasib was affiliated to the office of a qacjf. In other words, an independent office of mul}tasib seems not yet to have been created. Thus, we find al-Nair li al-Ijaqq (d. 304/917), the author of Kitab al-II}tisab maintains that J;isbah denotes a complete manifestation of the acts of the qacjaJ54 It should be noted that al-Nair was the first author of a l}isbah manual to use the word l}isbah, il}tisab and mu}Jtasib. Presumably, an independant office of mul}tasib could have been evolved by the time of al-Mawardi (d. 450/1058). In this connection, al-Ma wardi points out that l}isbah is equal to the institution of qaqaJ, where the mu/;Jtasib is capable of hearing complaints in matters concerning weights and measure, cheating in selling and non-payment of debt. 52See al-Mawardr, Al]kii1n. p. 241. Ibn al-Ukhuwwah, Macitlim. p. 9. 53SaQ.niin is said to have visited the market and penalised the vendors who dealt in fraud and were found cheating by removing them from the market. He also used to beat the litigants who caused harm to the opponent or the witnesses. QaQ.i c:Iyad, Tarlib al-Madiirik. 2: 600. Ibn Farl}un, Al-Dibaj. p. 163. See Makhlfif, 'fabaqat. pp. 69-70. See also S.M. Abu Zayd, al-lfisbah fi Mi11r. p. 63. Pedro Chalmeta, "La ljisba en lfriqiya et al-Andalus". Cahiers de Tunise. p. 88. Thus, Yal}.ya ibn CUmar has clearly mentioned that market supervision was the responsibility of the Governor, the qaqr and the market supervisor. YaQ.ya ibn CUmar, The text (second). p. 47. 54AI-Nair li al-I}:aqq, Kitab al-II]tisab. p. 11. 13 However, the mu/;}-tasib is not able to administer oaths or hear evidence. The mul:J,tasib is in fact, considered as a subordinate to the qaq,fl5 On this basis, a conclusion could be drawn that when an independant office of a mul}tasib was established it inherits not only the duties of the market supervisor but also some elements which were taken from the qaqr, the Governor and the Caliph. 2. Definition of hisbah 2.1. Literal meaning of l}isbah According to Ibn the word IJ,isbah is an infinitive of the verb il:J,tasaba, yal:J,tasibu, il}tisaban which has several meanings. Firstly it means to anticipate God's reward 56 This meaning is found in the tradition of the Prophet concerning the fasting in Ramaqan, in which he said, "He who fasts Ramacj,an because of his faith in God and that he is anticipating for His reward (il:J,tisaban), God will forgive his previous sins"57 55 Al-Mawardr, Al]kam. p. 241. The same statement was made by Ibn al-Farra), Al]kam. pp. 269-270. Ibn al-Ukhuwwah, Macalim. pp. 9-10. 5srbn Lisan. 1: 305. Al-Sunami, Nifiib al-Iqtisab. p. 2. Ibn cAbdfrn, Risiilah. p. 8. 57Ibn loc.cit. See Bukharr, vol. 1, p. 92. Ibn al-Athir, Nihayah. vol. 1, p. 382. 14 The second meaning of il}tasaba, yal}tasibu is to denounce (inkar) other persons' wrongful behaviour58 The third meaning of the word i}Jtasaba, yal}tasibu is to contemplate by considering the possibility of its outcome. This meaning can be found in three verses of the Qu,Jan. In the first verse, it reads, " ... and the person who fears God. God prepares for him a way out and He provides (with things) from sources he never could imagine (yal}tasibu)"59 In the second verse, the Qu.,J an says, "Even if the wrongdoers had all that there is on earth, and as much more, would they offer it for ransom from the pain of the penalty on the Day of Judgement, but something from God will confront them which they could never have expected (yal}tasibu)"60 Finally, in the third verse, it reads," ... but (the wrath of) God came to them from quarters from which they never have expected (yal}tasibu)"61 The fourth meaning of the word l}isbah which derived from l}asaba, ya!J,sibu, /;fistib and IJ,asfban is to calculate, estimate and take an account62 In fact, this meaning is found in three verses of the Qu,Jan. In 68Al s - - 't - unam1, op.Cl . 69Al-Qur>an. 65: 2-3. 60Al-Qur>an. 39: 47. 61Al-Qur>an. 59: 2.
ibn Anas, Muwatta1 (riw. al-Laythi). pp. 188-190. See also transl. pp. 115-6. 70AI-Nai.r li al-ijaqq, Kitiib al-ll].tisab. p. 11. 17 and forbidding what is wrong when it is found to be practised71 The same definition was made by Ibn al-Farra)72 and al-Sunanu73 Al-Ghazali describes l}isbah as a "comprehensive expression" (cibarah shamilah) for the duty of enjoining the good and forbidding evil74 Al-Shayzali maintains that l}isbah is an act of enjoining the good and forbidding the evil as well as making an improvement to the living condition of the public75 This definition was then adopted by Ibn al-Ukhuwwah76 According to Ibn al Khaldun, l}isbah falls under the religious obligation "to enjoin the good and forbid evil"77. From the above definitions, it seems that the Muslim scholars in medieval Islam have one common technical definition of /;J,isbah, that it is to enjoin the good and forbid evil. In relation to this, al-Sunami argues that this technical meaning of l}isbah does correspond to its literal meanings. 71AI-Mawardr, Al]kam. p. 240. 72Ibn al-Farra>. Al]kam. p. 268. 73AI-Sunamr, Ni!iiib al-II}tisab. p. 2. Al-Sunaml has clearly indicated that the meaning was found in Kitab al-A4kam al-Sultaniyyah; however, he did not mention whether he is referring to al-Mawardi or Ibn al-Farra>. 74-rt is therefore can be concluded that whenever al-Ghazali mentions the word l;isbah, he is referring to the duty of enjoining the good and forbidding evil. Al-Ghazalr, Il]yaJ. p. 398. Al-Ghazali also seems to give another description of ljisbah. He says, "the function of J;isbah is considered as a prevention against the wrongful acts involving the right of God (J;aqq Allah)". Al-Ghazali, IIJ.ya}. p. 418. 75 AI-Shayzari, Nihiiyah. p. 6. 76Ibn al-Ukhuwwah, Maciilim. p. 7. 77Ibn Khaldiin, Muqaddimah. trans. F. Rosenthal, vol 1, pp. 462-3. 18 This is because the mul;tasib who is enjoining the good and forbidding the evil is in fact, anticipating God's reward78 Similarly, the mul}tasib is also denouncing other people's wrong behaviour, so that he would be able to enjoin the neglected good deed and forbid the prevailing evii79 li al-Ijaqq maintained that the reason for the official being called mul}tasib is because he is in fact, examining his conduct (mul;tasibun) so that it would not be contradict God's wills80 In this way al-Sunami argues that the mul;ttasib is also managing (tadbfr) the conduct of his subject because he is maintaining the revealed law (iqamat al-shar0). As a result, al-Sunami held that according to some opinions, the institution of a qaqf is regarded as having some form of l;isbah, i.e. because the qaqf also aims to preserve the revealed law (sharfah)81 The latter statement of al-Sunami seems to be quite true because J;isbah had been translated by the medieval Muslim scholars by a general term of "enjoining the good and forbidding evil". This, in fact, was a term used by the Qu,Jan to call all Muslims to their duty which reads, "Let there be among you, a people inviting others to do good, enjoining what is right and forbidding what is wrong"82 In this manner, 78AI-Sunamr, Niiib alIIJ,tisab. pp. 2-3. 79Ibid. 80 AI-Nair 1i al-Ijaqq, Kitab al-II]tisab. p. 11. 81AI-Sunamr, op.cit. This statement of al-Sunami had then been referred to by later scholars, such as ijaji Khalifah, Kashf vol. 1, p. 16. 82Al-Qur>an. 3:104. H.F. Amedroz goes further, suggesting that it is due to this Quranic verse which imposed the duty of enjoining good and forbidding evil, that the jurisdiction of ljisbah is based upon. Amedroz, JRAS. p. 77. 19 al-Juwayni held that the revealed law (sharfah) from the beginning to the end is about enjoining the good and forbidding evi183 Similarly, Ibn Taymiyyah maintained that the purpose of all authorities (wilayat) in Islam is to enjoin the good and forbid the evil, whether it be the greater military authority (wiltiyat al-l}arb al-kubrti), the police (shurtah), the qagtiJ, the treasury or the J;isbah
ibn ibn MliQammad ibn Khalaf ibn Alpnad ibn al-Farra> al-Baghdadi also known as qadi Abu Ya9a. He was one of the masters of the ijanbali school in Baghdad, born in Mul}arram 380/April 990 and died on 19 RamaQ.an 458/15 August 1066. His father (d. 390/1000), who was a ijanan and held the office of notary (shahid), was said to have refused the office of qaqi al-quqat. It was in the IJanbalr doctrine, however, the young Ibn al-Farra> was trained and it is said that he even became the favourite disciple of!bn 24 Al-MawardY and Ibn al-Farra) are contemporaries, and both deal with l;isbah in a similar way. In fact, their works are almost the same, in both the title and the contents. The differences can only be found on a few points of law, for the former was a ShaficY, whereas the latter was a ijanbalr. However, both were said to belong to the entourage of the vizier Ibn al-Muslimah94. v) Il}ya) cuzum al-Dm95 of al-Ghazali (d. 505/1111)96. The author's treatment on l}isbah is found in the section entitled "Kitab al-amr bi al-macra{ wa al-nahy can al-munkar" (Book of enjoining the good and forbidding the evil). In fact al-GhazalY is actually dealing with the requirement of all Muslims "to enjoin the good and forbid evil", but the fact is that this was the particular duty of the mul}tasib, so that al-GhazalY frequently refers to the office of l}isbah in this section and in fact the whole al-I;.Iamid (d. 403/1013), with whom he studied the famous Mukhtaar of al-Khiraqi (d. 363/97 4). H. La oust, El(2). vol. 3 pp. 765-6. See also, Introduction to al-Al]kiim al-Sultaniyyah. pp. 33, 37. Makdisi. Rise. p. 221. 94Ibn al-Farra>,A.IJkiim. Cairo. 1938, chapter twenty, pp. 268-292. H. Laoust. Ibid. See also Cl. Cahen ... Ibn al-Muslima .. , El(2). vol. 3 pp. 891-2. 95Volume two. pp. 391-455. 96Abu I;,Iamid MutJ_ammad ibn MuQ.ammad al-Tfisi al-Shaficr (450/1058 - 505/1111). Al-Ghazali was born in Tus and studied in Nrshapiir from 47111078 to 478/1085 under Imam al-I;.Iaramayn al-Juwa%1 (419/1028 - 499/1105). In 478/1085 he became attached to i ~ a m al-Mulk, then Malikshah's vizier and in 484/1091 he became mudarris of the i ~ a m i y y a h madrasah in Baghdad, where he taught Shafi'1 law. He remained in Baghdad until488/1095, when he withdrew from public affairs. After leaving Baghdad, he spent some time in Damascus before returning to 'fiis. Later he became mudarris of the i ~ a m i y y a h madrasah in NishapU.r. See El(l). vol3, pp. 146-9. El(2). vol2, pp. 1038-1041. First El. vol. 3, pp. 146-9. See also T.J. Winter, Introduction to al-Ghazali in The remembrance of death and afterlife. pp. xv-xvi. Lambton, State and Government. pp. 107-8. 25 discussion actually applies to the office97. This is confirmed by the manual of IJisbah by Ibn al-Ukhuwwah, who frequently quotes passages from this section of al-Ghazal198 It should be noted here that al-Ghazali has provided some significant contribution to the understanding of l}isbah which al-Mawardl and Ibn al-Farra) have neglected, particularly on matters dealing with elements of l]isbah and its stages as well as on issues relating to the manners of the mul]tasib. This is clearly demonstrated in the work of Ibn al-Ukhuwwah who frequently refers to this section. vi) Kitab tr Adab al-lfisbah99 of al-Saqatr (ea. 500/1100)100, the Andalusian scholar of Malaqa. Al-Saqatr's full name is Abu cAbd Allah Mul}ammad ibn Abi Mul}.ammad al-Saqat1 and he was a mul;-tasib. He speaks generally about the laws and practices for the industrialists, 97This is because al-Ghazalr defines l;isbah as a "complete expression" (cilxirah shamilah) of the term "enjoining the good and forbidding the evil". Al-Ghazalr, lqyaJ. p. 398. 98See for example the discussion on the qualifications of the mul],tasib. Al-Ghazalr, lqyaJ. pp. 398-9. Ibn al-Ukhuwwah, Maciili1n. pp. 7-8. See also jurisdiction of J;isbah over matters involving personal opinion (ijtihiid). Al-Ghazali, lqyiiJ. pp. 415-6. Ibn al-Ukhuwwah, Maciilim. p. 197, and on stages of l;isbah. Al-Ghazali, lqyii J, p. 422. Ibn al-Ukhuwwah, Maciilim. pp. 195-6. 9Srr'he manual was edited by E. Levi-Provencal and G. S. Colin. Un Manuel Hispanique de Ifisba. Paris, 1931. It was then translated into Spanish by Pedro Chalmeta Gendron, "El Kitab fr Adab al-lfisba (Libro del Buen Gobierno del Zoco) de al-Saqati". Al-Andalus. (1967). pp. 125-162, 359-397, (1968). pp. 143-195. 100This is according to Cl. Cahen and M. Talbi. See "I;;Iisba". El(2). vol. 3, pp. 485-489. F. Gabrieli also suggests that al-Saqap was the contemporary of Ibn cAbdfin, who is believed to live between 5th/11th and 6th/12th centuries. F. Gabrieli. Ibn cAbdun. El(2). vol. 3. p. 681. However, S.M. Imamuddin maintained that he lived in 14th century. For that matter he added that, although al-Saqat'i lived and worked in the 14th century, yet the customs and practices of the muhtasib and merchants reflect their earlier practices in the lOth and 11th centuries with a littJe deviation due to the scarcity of goods during the time of the author. S.M. Imamuddin, "Al-lfisbah in Muslim Spain". IC. p. 62. 26 artisans and vendors to ensure that their customers received goods of good quality and correct weight at reasonable prices. In short, the author gives information about the instructions given to the mul}tasib for strict vigilance such as periodical inspection of various articles, the mul}tasib's seal, official measures and weights, the malpractices of different workshop owners, brokers, sellers of bread, horses and slaves, and finally the mul}tasib's power to imprison. vii) Risalat Ibn cAbdun {f al-QaqaJ wa al-Ifisbah of Ibn cAbdiin (ea. 500/1100), the Andalusian scholar of Seville101. Ibn cAbdiin's full name is Mu.l)arnmad ibn Alpnad. He was a faqfh and was either a qacjf or a mulj,tasib. He was born perhaps in Seville, and certainly spent a large part of his life there, in the second half of the 5th/11th and the first half of the 6th/12th centuries102. His work, Risalah {f al-QaqaJ wa al-Ifisbah speaks not only on matters concerning commercial and marketing but also the maintenance of law and order. Thus, we find the text mentioning that it is disapproved for someone to carry a weapon in town, especially the Berbers, for this may cause a disaster. Similarly, musicians are not allowed to roam about without the permission of the qacjfbecause they are accompanied by 101E. Levi-Provencal (ed.). Journal Asiatique. 1934; reprinted in, Trois Traites Hispaniques de lfisba (Thiilatha RasiiJil Andalusiyyah fi Adiib al-lfisbah wa al Mul]tasib). Le Caire: 1955. This treatise was translated into French by E. Seville Musulmane du debut du XII siele, 1947. It was also translated Into Spanish In collaboration with Garcia Gomez in Sevilla Musulmana, 1948; and Italian by F. Gabrieli, in Rend. Lin., 6th series, xi, 1935. 102"Ibn cAbdun". EI(2). vol. 3, p. 681. 27 people of undesirable character103 The author maintains that l}isbah or il}tisab has a close relationship to qacja}, for the mul}tasib is regarded as a representative of the qtiqf, and he will act in the absence of the latter104 viii) Kitab Nihayat al-Rutbah fr ':falab al-lfisbah of al-Shayzari (d. 589/1193)105, a Syrian author from Shayzar who was the contemporary of al-D1n al-Ayyiib1 (d. 589/1193). This work was first discussed by Waiter Behrnauer in 1860106 and later in 1946, al-Baz al-cArini provided an Arabic edition to the text107. This book contains 40 chapters, four of which deal with the supervision of }Jisbah in general, such as the discussions on markets, weights and measures and the duties of the mul]tasib. The rest of the book deals more specifically with the duties of the mul}tasib as regards different artisans and crafts with full details on the rules and regulations which should be followed in each craft in order to maintain a clean and safe product, and prevent cheating. This book of al-1038. M. Imamuddin, IC. pp. 25-26. 104Ibn cAbdiin, Risiilah. p. 20. Ibn cAbdiin said: wa al-II]tisab akhu alQacJa} wa huwa lisiin al-QiitJi wa qiijibuhu wa waziruhu wa khalifatuhu. 105cAbd al-RaQ.man ibn ibn cAbd Allah al-Shayzari. Apart from this work on J;isbah, he produced another work entitled Al-Nahj al-Maslak fi Siyasat al-Mulak, which he presented to Sultan $alaQ. al-Din al-Ayyiibl. ijajjr Khalrfah, Kashf 3: 510, 5: 507. Brockelmann, GAL (supp.) 1:832. Al-Baz al-cArrnr, "Introduction toNthayah ofal-Shayzari". p. vii. 106Behmauer, "Memoire sur les Institutions de Police chez les Arabes, les Persans et les Turcs". Journal Asiatique. 5th series, 1860, xv, pp. 461-509, xvi, pp. 114-190. 107 Al-Baz al-cArrnr, Kitiib Nihiiyat al-Rutbah fi 'falab al-lfisbah. Matbacat al-Tdlf{ wa al-Tarjamah wa al-Nashr. Cairo, 1365/1946. 28 Shayzan had since become the basis for many of the }Jisbah manuals, particularly in the cases of Ibn al-Ukhuwwah and Ibn Bassam108 ix) Al-lfisbah fi al-Islam of Ibn Taymiyyah (d. 728/1328)109, Unlike earlier jurists, with the exception of the work of Yal;}.ya ibn cumar, Ibn Taymiyyah's discussion on }Jisbah is found in one book. However, his work mostly is, in fact, reiterating the discussions of previous jurists. Part of his discussion also shows some similarities to the work of his contemporary, Ibn al-Ukhuwwah (d. 729/1329), Macalim al-Qurbah {f Aljkam al-lfisbah, particularly in matters concerning the discretionary punishments (taczfr). Nevertheless, credit should be given to him for his effort to reexamine some controversial issues like price fixing which was initiated by Ya]Jya ibn cumar but was left out by al-Mawardi and al-GhazalL In fact, his discussion is more comprehensive because his reference is not limited to the opinions of his school of thought, i.e. ijanbal!, but also takes into account those of the Malikis and the Shaficis110 However, the author still has difficulty 108 Al-Baz al-cArinf, "Introduction to Nihayah of al-Shayzari". p. v. See also Aidit Ghazali, IslamicThinkersonEconomicsAdministrationandTransactions.KualaLumpur, 1991. al-Dfn .AQmad ibn Taymiyyah was born in 661 A.H. and died in Damascus on 728 A. H. Even though he was a I}:anbali theoligan and jurist, his influence is not confined to any one school of Islamic thought. Perhaps this is due to his respect for other scholars of different schools as shown in his work, particularly the treatise on l],isbah. See Khurshid Ahmad, "Editor preface to Public Duties in Islam: The Institution of the Ifisbah. p. 8. 110Ibn Taymiyyah, al-lfisbah fi al-Islam. ed. Sayyid ibn ibn Abi Sacdah. Maktabat Dar al-Arqam. Kuwait. 1983. 29 in arranging the subjects of his discussions, though this seemed to have been settled by al-Mawardl and al-Ghazali. x) Kitab Macalim al-Qurbah tr Al}kam al-lfisbah, by the Egyptian Ibn al- Ukhuwwah (d. 729/1329) in seventy chapters. Even though some great resemblances are found in his work to that of al-Shayzari, the author has provided further information on the subject under discussion. Furthermore, Ibn al-Ukhuwwah has also made references to the works ofal-Mawardi and al-Ghazall. Thus, the work can be regarded as one of the best of its kind111 xi) Nitib al-I}Jtisab of cumar ibn ibn er waQ. al-Sunami' (d. about 734/1333-4)112. Al-Sunami lived and died in India. He was a Ijanafi jurist and his work consists of sixty four chapters. Unlike other l}isbah manuals, this work of al-Sunam1 was mainly concerned with moral and religious behaviour which is contradictory to the correct teaching of Islam, and only on some occasions did he mention the supervision of economic occupations. Thus, Izzidien holds that the work of al-Sunam1 provides rich information about popular practices in Indian Islam during 111Ibn al-Ukhuwwah, Kitiib Maciilim al-Qurbah fi Al]kiim al-lfisbah, edited and abridged translation by Reuben Levy. Cambridge. 1937. 112frhe work has been studied by two Ph.D theses. See David Henry Partingtion. The al-II]tisab. An Arabic religio-legal text. Unpublished Ph.D thesis, Princeton University. 1961. See also M.Y. Izzidien. Nbliib al-ll]tisiib ofcUmar ibn Mul]ammad al-Sunamf. Unpublished Ph.D thesis. 2 vols. Manchester University. 1978. Volume 2 of this thesis contains an edition to Nifiab al-II],tisab. 30 the medieval period. Although the work discusses many social innovations, manners, customs and ceremonies, it cannot be considered merely as a work on social history, because the main intention of the book is to draw a clear distinction between what is lawful and what is unlawful according to Islam113. Thus, al-Sunarni himself explains that he seeks to assist the mul}tasibs in the fulfilment of their duty so that his work becomes a guide for them 114. xii) Nihayat al-Rutbah fi {alab al-Ifisbah of Ibn Bassam (7th/13th century), who was of Syrian or Egyptian origin. According to Partington, this work oflbn Bassam remains unedited. The only study on the text was made by Loius Cheikho in 1907 and 1908, and consists of some extracts and an analysis of the work115 There seem to be two copies in manuscript of this work of Ibn Bassam. According to Reuben Levy, a copy of the MS was held at British Museum MS Or 9588116, while al-Baz al-cArln1 maintained that another copy was found in the Taymar collection in the 113! 'd' 22 ZZl Ien. p. . 114Al-Sunam1, p. 1. 115Partington, The Niiib al-lqtisab. Unpublished Ph.D Thesis, Princeton 1961, p. 19. However, Pedro Chalmeta Gendron indicates that the work of Ibn was edited by al-llin Sammara>t which entitled; Nihiiyat al-Rutbah fi'falab al-Ifa.sbah li Ibn Bassiim al-Mul}tasib. Baghdad, 1968. See P.C. Gendron, el "senor del zoco" en espana: edatks media y moderna. Madrid. 1973, p. 652. 116Reuben Levy, "Introduction to Maciilim al-Qurbah oflbn al-Ukhuwwah". p. xvii. 31 Bibliotheque Egyptienne in Cairo117. Ibn Bassam was believed to be a mul}tasib. Even though, he had copied some of the chapters from al-Shayzan's Nihayah, and had borrowed the title of the book, in fact, he had extended the discussions into one hundred and fourteen chapters, whereas al-Shayzari included only forty chapters118. xiii) Risalat Al}mad ibn cAbd Allah ibn cAbd al-RaJaf {C Adab al-lfisbah wa al-Mul}tasib of Ibn Abd al-Ra)ii'119 Little is known about Ibn cAbd al-Ra)uf. However, he is believed to an Andalusian120 xiv) Risalat cumar ibn cuthman ibn CAbbas al-Jarsf{f {f al-lfisbah of al-Jarsi1121. Levi-Provencal suggests that al-Jars!fi's nisba derives from Guercifin Eastern Morocco, some 100 miles east north-east of Fez. His date is certainly not earlier than 1250-1300 A.D. to judge by his references to al-Nawawi, the latest author he quotes122. 117AI-Baz al-cAiini, "Introduction to al-Shayzan's Nihayah. p. vii. 118Partington, op.cit. 119E. Lvi-Provencal (ed.). Trois Traites Hispaniques de Ifisba. Le Caire: 1955. See also Rachel Arie, (trans. Fr.). Hesperis-Tamuda, i (1960). 1208. M. Imamuddin. IC. p. 25. 121E. Lvi-Provencal. Ibid. This treatise was also translated Arie in Hesperis-Tamuda, i (1960), while G. M. Wickens ?as translated It Into Enghsh In IQ, 1956. See also commentaries drawn on by J. D. Latham In JSS, v (1960). 122G. M. Wickens, "Al-Jarsifi on the lfisba". IQ. vol. iii (1956), p. 176. 32 It should be noted here that there are other works of lesser importance which include al-Fal {f al-Milal wa al-AhwaJ wa al-Nil;al of Ibn I}azm (d. 456/1064). According to the author, the Muslim scholars were unanimous in making the duty of enjoining the good and forbidding evil obligatory on every Muslim. However, in carrying out the duty, the person responsible should be patient and recognise other people's rights. Therefore, it is unlawful for him to harm another person or confiscate his property except by law123. Al-Juwayni (d. 499/1105) in his book al-Ghiyathrhad also treated the subject in his chapter on enjoining the good and forbidding evil. According to al-Juwayni, although the obligation of enjoining the good and forbidding evil falls on every Muslim, ordinary people are only allowed to carry out the duty by giving advice without being rude or making flattering (malaq) remarks124. Apart from these, there are other works of the jurists who have discussed the issues relating to l}isbah, such as Kitab al-furuq al-Ifullnz,iyyah {fal-Siyasah al-Sharciyyah by Ibn Qayyim al-Jawziyyah (d. 751 A.H.) and Kittib Tabirat al-Ifukktim by Ibn Farl}.ful (d. 799 A.H.). 123rt should be mentioned here that neither the word Jtisbah nor iJ;tisab is found in the text. Instead. the author has used the term al-amr bi al-macru{wa al-nahy can al-munkar. Ibn I}:azm, vol. 4, pp. 171-6. 124AI-Juwayru, al-Ghiyathi. pp. 237-239. 33 Ibn Khaldun (d. 808/1406)125 also deals with the subject of ljisbah in his al-Muqaddimah. He considers }Jisbah as one of the major institutions of the Islamic caliphate that fall under the religious obligation "to enjoin the good and forbid evil". According to Ibn Khaldiin, J;isbah was under the jurisdiction of the qaqr. However, later, it became part of the office of the Caliph126. Al-Qalqashandi (d. 821/1418)127 also deals with the subject in u b i } al-Acsha, particularly in volume 12, where he lists several of the letters of appointment (tawqrcat) that were sent to the designated mul;tasibs. These letters give an idea about the qualifications of the mu}Jtasib and the importance of the office in comparison with other governmental institutions. lfisbah was considered a religious office and was placed next to qaqaJ128 4. Studies on works of hisbah by later scholars The earliest study on }Jisbah was made by Waiter Behrnauerin 1860, who examined al-Shayzari's Kitab Nihayat al-Rutbah fi Al}kam al-lfisbah. 12\vali al-Din Abu Zayd cAbd al-RaQ.man. First El. vol. 3, p. 395-6. 126Ibn Khaldun. The Muqaddimah. ed. and trans. by F. Rosental N.J. 1962. 127Shihab al-Din Abu al-cAbbas ibn cAli cAbd Allah ibn Al}.mad ibn cAbd Allah al-Fazali al-Shaffi (756-821/1355-1418). El(2). vol. 4, pp. 509-511. 128Al-QalqashandL ~ u b i al-Acshii. Cairo. 1964. 34 Despite the fact that the study has mistakenly referred to al-Shayza:rl as al-Nibrawi, it has been recognised as one of the most significant studies on the subject. Later, in 1907 and 1908, Louis Cheikho produced his monumental study on the work of Ibn Bassam. A series of studies were made by Mul}.ammad Kurd cAlr in 1908 and 1921 which discussed a general outline of the institution of l}isbah. In 1916, H.F. Amedroz presented his translation and analysis of chapter twenty of al-Maward!'s al-Al}kam al-Sultaniyyah wa al-Wilayat al-Dfniyyah. This was followed by a study by G.S. Colin and E. Levi-Provencal who edited the work of al-Saqati in 1931. Later in 1934, 1947 and 1955, E. Levi-Provencal produced a series of studies on and editions of the works of Andalusian scholars, comprising ofibn cAbdiin, Ibn cAbd al-Ra)uf and al-Jars!fi. The author also translated the work of Ibn cAbdfrn in 1947. In 1938, Reuben Levy presented his monumental study in which he edited and summarized the work of Ibn al-Ukhuwwah. Later, in 1946, al-Baz al-cAnnY provided an Arabic edition of the work of al-Shayza:rl. In 1948, E. Garcia Gomez reintroduced the work of Ibn cAbdun which was translated into French by E. Levi-Provencal in 1947. Later in 1953, R.B. Serjeant introduced the work of a Zaydi scholar al-Nair li al-ijaqq. In 1956, Malpnud cAiy Makkl introduced the work ofYal;}ya ibn cumar and a year later E. Garcia Gomez provided a Spanish translation of the work. In the same year, G.M. Wickens translated the work of al-Jars!fi. Later, in 35 1975, Farl;at al-DashrawY with the help of :ijasan I}:uni 0Abd al-Wahhab edited another version of the work ofYa}J.ya ibn cumar. Perhaps one of the best known contemporary scholars describing l}isbah is Nicola Ziadeh in his two books "Al-Ifisbah wa al-Mul]iasib fr al-Islam"129 and "Urban Life in Syria under the Early Mamluks"130, in which he discusses the office of }Jisbah and the duties of the mu}Jtasib. Benjamin Foster discusses the relationship between the Roman agoranomos and the mul}tasib, in which he concludes that agoranomia and l}isbah were words applied at different times to an office that dealt with many similar functions but with widely different bases of authority and roles in different administrative systems, even within the same civilization131. Apart from him, a study was carried out by Thomas Glick. The author discusses the question of continuity of market inspection, particularly from Islam to later Christian Spain and the Latin East132 There are other studies carried out by scholars such as by S.M. 129Nicola Ziadeh, Al-lfisbah wa al-Mul]tasib fi al-Isliim. Beirut. 1962. The book also contains several selections of l}isbah materials from primary sources. 130Nicola Ziadeh, Urban Life in Syria under the Early Mamluks. Beirut. The American University, 1963. 131Benjamin Foster, "Agoranomos and Mul]tasib". JESHO, 1970. pp. 120-144. 132rrhomas Glick, "Mul]tasib and Mustasaf'. VIATOR. vol. 2, 1971. pp. 59-81. 36 Imamuddin133, Ishaq Musa al-Husaini134, al-Qasim.I136 and R.P. Buckley who traced the role of market supervision during early Islam136. Much information on the literature and history of l}isbah can be derived from a study by Claude Cahen and Muhammad Talbi in the Encyclopaedia of Islam 137. 133S.M. Imamuddin. "Al-lfisbah in Muslim Spain". IC. 1963. pp. 25-29. 134Ishaq Musa al-Husaini. "lfisba in Islam". IQ. 1966. pp. 69-83. al-Qasimi, Niiiim al-lfukm fi al-Shan-cah wa al-Tarikh al-Islami. vol 2. Beirut, 1983. 136R.P. Buckley, "The Mul;tasib", ARABICA. 1992, pp. 59-65. 137 d M T lb' "lfisba" E1(2) vol 3 pp. 485-493. See also Reuben Levy, "The Cl. Cahen an . a 1, " ' Mul]tasib". El(l). vol 3. pp. 702-3. 37 CHAPTER ONE An analysis of the work of the Maliki scholar Y WJ.ya ibn cumar al Kinani al-Andalusi 1.1. Sources The name YaJtya ibn cumar was mentioned by Claude Cahen and Muhammad Talbi in the Encyclopaedia of Islam1 together with his work entitled Kitab A/;Jkam al-Silq (Book on legal decisions related to the market). In fact, the work was first edited by MalJ_miid cAll Makk1 in Revista del Instituto Egipcio de Estudios Islamicos al-Machad al-Mirf), in 19562 and later on was translated into Spanish by Emilio Garcia Gomez, in al-Andalus in 19573. The work was transmitted by Ibn Shibl al-Andalusy4, There is in fact another version of the work which was transmitted by AQmad al-Quarl al-Qayrawan15 which is entitled Kitab al- wa al-A}Jkam fi Jamf Ahwal al-Suq (Book on supervision and legal 1CI. Cahen and M. Talbi. "lfisba". El(2) vol. 3, p. 486. 2M.A. MakkL RIEEI, iv, 1956. pp. 59-151. 3E. Garcia Gomez. al-Andalus, xxii, 1957. pp. 253-316. 4See Ibn Farljun, al-Dfbiij. p. 319. 5See al-Khushani. Quqiit. p. 184. 38 decisions on matters related to the market). This work was edited by Farl;.liit al-Dashrawi, Tunisia, 1975 with the help ofijasan ijusni 0Abd al-Wahhab who owns the manuscript. These two versions of the work of Yal]yii ibn cu mar will then be referred to as the first and the second version throughout the study. It is the intention of this study to analyse and summarise the two versions of the texts. 1.2. Life and career ofYaqya ibn cumar His name is Abu Zakariyya) Yal}.ya ibn cu mar ibn Yusuf al-Kinam al-AndalusL He was born in Jayyan6 in Andalusia7 There are two different accounts of when Yal}.ya was born. As mentioned in Shajarat al-Nar al-Zakiyyah fi '.fabaqat al-Malikiyyah, YalJ.ya was born in 223 A.H. and died in 298 A.H. This, in fact, is not correct and cannot be accepted because the book also mentioned that al-Dimyat18 the Maliki: scholar in Egypt, who died in 226 A.H. was one of his teachers9 The same account was given by Ibn Farl}un that Yal}ya ibn cumar is also said to have studied in Egypt 6Jayyan or Jaen as known at present is a city in Andalusia. See Mucjam fi alAcltim. p. 179. 7Ibn FarQ.o.n, AlDfbdj. p. 351. 8 Abu Zayd cAbd al-RaQ.man ibn Abii JaCfar al-Dimyap (d. 226 A.H.). He narrated from Malik and later continued to study with Ibn Wahb, Ibn al-Qasim and Ashhab. Here, Ibn Farho.n had stated that YaQ.ya ibn CUmar and al-Walid ibn Mucawiyah had studied with him in Eogypt. Ibn FarQ.fm, al-Dfbiij. p. 148. Makhluf, 'fabaqiit. p. 59. 9In fact, the book also stated that he had studied with b g h ibn al-Faraj who died in 225 A.H. Makhluf, 'fabaqiit. p. 73. 39 with al-Dimyat1 and bearing in mind that Yal].ya ibn cumar had studied before this from cAbd al-Malik ibn ijabib10 in Cordova and from SaJpllln 'b S c-dll . Q 12 1 n a 1 1n ayrawan . The more acceptable account on this matter could be derived from those of Ibn al-FaraQ.r13 and Ibn 10 Marwan al-Malik ibn Ijabrb (174-238 A.H.). He studied with Ibn al-Majishun, Abagh 1bn al-Fara.J and others. He took over the leadership of the Maliki school in al-Andalus from YaQ.ya al-Laythr when the latter died. Ibn Farl}11n regards him as the most learned man of his time. The same was the opinion of Ibn al-Majishiin and he even considered Ibn I;Iabrb as more competent than Sal].nun ibn Sacid. According to Ibn FarQiin, whenever he went out from the mosque, about 300 students waiting for him. Ibn Farl;}.iin, alDibiij. pp. 154-6. Ibn al-FaraQ.1, Tarr,kh. pp. 312-5. MakhlUf, fabaqcit. See also, Ibn al-FarQ.'Un, alDfb4}. p. 351. llcAbd al-Salam SaQ.niin or "Sul}niin" ibn Sacrd al-Tam1khi (160-240 A.H.), the famous qacjr and jurist of the Malikr school of law. He started his ril;lah at the age of 18 in the year 178 A.H. He studied with Ibn al-Qasim when he was 25 years old. He also studied with Ashhab and Ibn Abr al-Ghamar. All his teachers spoke very highly of him and considered him as their best student who came from the West. However, Ibn Abr al-Ghamar prefers Ibn }Jabib because of his eloquence. He returned to Qayrawan in 191 A.H. at the age of31. After much persuasion from the amfr Mul}ammad ibn al-Aghlab, he agreed to become a qaqrin Qayrawan in 234 A.H. at the of 74, on condition that he would not be receive any salary and that he would execute justice even though it would involve the amfr and his family. He continued in his position until he died in 240 A.H. According to MulJammad Makhliif, Sal;}niin had carried out the duty of J;isbah along with his official occupation as a qaqf. He wrote al-Mudawwanah which he narrated from Ibn al-Qasim. Amongst his most senior students and associates were his son, MuQ.ammad ibn SaQ.nu.n, Mul}ammad ibn cAbdus, ijamdis, Cfsa ibn Miskin and YaQ.ya ibn CUmar. Ibn FarQ.un, al-Dibiij. pp. 160-6. Makhliif, 'fabaqiit. pp. 69-70. I;;Iasan I;;Iusnr cAbd al-Wahhab, al-lmiim al-Miizari. p. 24. 12AI-Khushani, Qucjat. p. 184. Ibn al-FaraQ.I, Tankh. vol. 2, p. 181. Ibn Far}J.un, alDibiij. p. 351. 13Al-qaqi Abu al-Walrd cAbd Allah ibn Mul}ammad known as Ibn al-FaraQ.I (d. 403 A.H.). A famous jurist and historian. He had studied with al-Khushani (d. 361 A. H.) in Cordova and with Ibn Abr Zayd al-Qayrawani (d. 386 A.H.) in Qayrawan. He then travelled to the East. He wrote a famous book entitled Tiirikh al-cUlamct wa al-Ruwat li al-cllm bi al-Andalus, which is referred to in this study. Ibn Farl}11n, al-Dibiij. p. 143. Makhlu.f, fabaqat. pp. 102-3. See Ibn al-Faracjr, Tarikh. vol. 2, p. 181. 1'13urhan al-Drn Abu Isl}aq Ibramm ibn al-Shaykh Abr ai-:e:asan cAli ibn FarQ.fm (d. 799 A.H.). He was a great Malikijurist and was a qaqrin He was also author of many famous books such as, al-Ifukkiim fi Ulll al-Aqcjyah and Al-DrbOJ Macrifah Acyan cuzamrt al-Madhhab. Makhlu.f, 'fabaqat. p. 222. See Ibn Farl}un, al-Dr,bCIJ. pp. 351-3. 40 According to them, Yal}.ya ibn cumar who died in 289 A.H. at the age of 7615. However, with regard to his ri}Jlah, it could be assumed that Ya.Q.ya ibn cu mar was born earlier than 213 A.H. because when his teacher Sa}pliin died in 240 A.H., Yal}ya ibn cumar would not have been more than 27 years old. Furthermore, Yal}.ya ibn cumar is said to have studied with his teacher SaQniin and was regarded as one of his most senior students and associates. Moreover, as mentioned earlier, Ibn Farl}.iin and Ibn al-FaraQi have indicated that Yal}.ya ibn CUmar had begun his ril}lah to the East earlier than 226 A.H. when he was not more than thirteen years old. He then returned to Qayrawan before Sal}niin died in 240 A.H. which concluded the duration of his ril}lah to Egypt, Ijijaz and Qayrawan for about fourteen years. Thus, it could be accepted that Y al}.ya ibn CUmar was born earlier than 213 A.H. However, there seems to be no proof for that. As illustrated by figures 1.1. (the relationship between the Malikl scholars and their teachers?6 and 1.3. (the ril}lah ofYal}.ya ibn cumar)17 which were drawn from the available sources, ~ y a ibn cumar was believed to have grown up in Cordova and began studying with the most celebrated Maliki scholar of his time, cAbd al-Malik ibn ijabrb. Yal}ya ibn 15Ibn Farl}iin however, clearly stated that t ~ e author was born in Andalusia in 213 A.H. Ibn Farl}un, al-Dibiij. Ibid. Ibn al-FaraQ.L op.Cit. 16See Appendix A. 17 See Appendix c. See also Appendix D: Figure 1.4. (The Presumed Age of Ya]tya ibn CUmar). These accounts were, in fact, an assumption made by the present study based on the facts derived from figures 1.1 and 1.3. 41 0Umar then travelled to I{rfqiyyah (North Africa) and studied with Sal;).niin ibn Sacrd in Qayrawan. It is believed that Yal}ya. ibn cumar stayed in Qayrawan for a short period of time because he then continued his ril}lah to the East with his brother Mul}arnmad. The same thing occured in the case ofMul)ammad ibn CAbdiis18 who studied with Sal}.niin ibn sacrd when young, then travelled to the East to study with various Maliki scholars, but later returned to Qayrawan to continue his study with Sal;nun and later was regarded as one of his most senior students and associates19. In the case of Yal].ya ibn cumar, he was also regarded as one of the most senior students and associates of Sahnun ibn Sacrd. 0 It is believed that Yal}.ya ibn cumar had travelled to Egypt before 226 A.H. when he was not more than thirteen years old20 because, amongst his teachers in Egypt, was al-Dimyatr who died in 226 A.H. The fact that Yal].ya has only referred to al-Dimyatr through al-Walrd ibn Mucawiyah21 could be because he was too young at that time22. This does not mean that
ibn Ibrahrm ibn c Abdus known as Ibn c Abdus (2022_60/71887 4). One of the great scholars ofQayrawan. Al-Khushani, Quqlit. pp. 182-3. Ibn Farl}un, al-DfbQJ. pp. 237-8. l\1akhliif, 'fabaqiit. p. 70. Al-Zirikli, al-Aclii1n. 5:294. 19 Al-KhushanL loc.cit. 20see Appendix D, figure 1.4. (The Presumed Age ofYal}ya ibn CUmar). 21The study has not been able to locate him. Farl}fin had that he was one of the students of al-Dimyap who died In 226 A.H. In_ Egypt. It could be assumed that he was in Egypt during that year. See Ibn Farl}un, al-D-,bOJ. p. 148. 22The text (second). p. 111. 42 he did not meet al-Dimyati, since on another occasion he has referred to Ibn Abi who died in 234 A H th h hi . . roug s nephew Al}.mad24 According to one source, Yal,;lya ibn "Umar is said to have studied with ibn al-Faraj25 who died in 225 A.H. However, the book itself held that he was born in 223 A H 26 F rth fr th . . . u ermore, om e two texts, Yal}.ya ibn cumar had only referred to Abagh ibn al-Faraj through cUbayd ibn Mucawiyah27. In fact, Yal}.ya is said to have written a treatise on the teaching of Abagh in al-Faraj which he had narrated from Ibn al-Qasim. The treatise then was transmitted to Yal}.ya ibn cumar by cUbayd ibn Mucawiyah. Therefore, it could be assumed that Yal}.ya did not study with Abagh ibn al-Faraj, but might have come to Egypt during the year the latter died. In Egypt, Ya}J.ya ibn CUmar also studied with Ibn 23Abu Zayd cAbd al-Ral}.man ibn CUmar ibn Ab! al-Ghamar (160-234 A.H.). He met Malik but did not narrate from him. He studied with Ibn al-Qasim, Ibn Wahb and others. He was one of the great scholars of the Malikls in Egypt. Al-Bukhan narrated from him and included traditions from him in his Ibn Farl}.un has stated that one of his students was Ya}J.ya ibn CUmar. Ibn Farl}un, al-Dibiij. pp. 148-9. Makhluf, '.fabaqat. pp. 66-7. 24See The text (second). p. 94. 25 Abagh ibn al-Faraj ibn Sa'ld ibn Nafic (150- 225 A.H.). One of the great Malikl scholars in Egypt. At the age of 29, he had made his ril]lah to study with Malik, but the latter died when he arrived in I;.lijaz. He then studied with Ibn al-Qasim, Ibn Wahb and Ashhab. Later he became the secretary to Ibn Wahb. Ibn Farl}.iin, al-Dibiij. p. 97. MakhlUf, '.fabaqat. p. 67. Al-Ziriklf, al-Aclam. 1:333.
'fabaqclt. p. 73. 27The two texts referred to him as c Abd Allah ibn Mucawiyah and CUbayd Allah ibn Mucawiyah. However, it seems more likely that he was CUbayd ibn. to be no evidence showing that YaQ.ya ibn CUmar had had any relation With e1ther Abd Allah or CUbayd Allah. However, according to qlUJfciya<}, CUbayd ibn Mucawiyah was one teachers. Also from CUbayd's biography, we learn that he was the student of Abagh 1bn al-Faraj. CUbayd ibn Mucawiyah died in 250 A.H. and his full name is CUbayd ibn Mucawiyah ibn Ijakam al-JafnawL Qacjf CJya<}, Tartib al-Madiirik. vol. 3, pp. 86 and 234. 43 Bukayr28 and the students of Ibn 29 al-Qasim Ibn Wahb30 and Ashhab31. Amongst them were Abil al-'fiihir ibn al-Sarah32 and al-0 IJ:arith ibn Misk1n33 It should be noted here that from the text of the second version, Yal)ya had referred to his teacher al-ijarith ibn Miskln fourteen times, which, in fact, was the most frequent type of isnad found in the text34 Although he was considered as an associate to his teacher Sal}.nun ibn Sacrd, which could be due to the fact that both of them were teaching in Qayrawan, YalJ.ya seems to have attached himself to his teacher 28 Abu Zakariyya> YaQ.ya ibn cAbd Allah ibn Bukayr al-MiIi (d. 231 A.H.). He had narrated from Malik ibn Anas and studied with him his Muwattct. Ibn FarQiin. al-Dibiij. p. 353. He must not be mistaken with another Ibn Bukayr, YaQ.ya ibn YaQ.ya al-Naysabun who died in 226 A.H. because none of his students came from the East. See Ibn FarlJ.iin, al-Dibaj. pp. 349-350. 29Abu cAbd Allah cAbd al-Ral}.man ibn al-Qasim a l M i ~ r r (d. 191 A.H.). One of the most senior students of Malik who had studied with him for twenty years. Amongst his students were Abagh, al-ijarith ibn Miskin, Yal}ya ibn YaQ.ya, Asad ibn Furat, SaQ.nu.n and others. Makhluf, 'fabaqiit. p. 58. 30Abu MuQ.ammad cAbd Allah ibn Wahb ibn Muslim al-Qurashi (d. 197 A.H.). One of the most senior students ofMalik who was with him for twenty years. His students are almost the same as those of Ibn al-Qasim. Makhluf, fabaqiit. pp. 58-9. 31Abu al-CUmar Ashhab ibn cAbd al-cAzfz al-Mirf (145-204/762-819). One of the most senior students of Malik. He took over the leadership of the Malikl school in Egypt from Ibn al-Qasim when the latter died in 191 A.H. He was a prominent jurist of the Malikl school of law in Egypt. Al-Shaficr regards him as the most learned scholar in Egypt at his time. His students were almost the same as those of Ibn al-Qasim and Ibn Wahb. Makhlu.f, fabaqiit. p. 59. Al-Ziriklf, al-Acliim. 1:333. 32AQ.mad ibn CUmar ibn cAbd Allah ibn al-Sara}t (d. 250 A.H.). He was known as Abu al-Tahir. He narrated from Ibn Wahb and studied with Ibn CUyaynah. He was one of the great scholars of the Malikrs in Egypt. Ibn Far}tun, al-Dibaj. pp. 35-6. Ya}J.ya also mentioned that Abu al-Tahir was one of his teachers. See The text (second). p. 42. 33Abu cAmr al-J;Iarith ibn Miskln ibn Mul;].ammad ibn Yusuf(154-250/771-864). He studied with Ibn al-Qasim, Ibn Wahb and Ashhab. He was a great Malikljuris:in Egypt. He became a qaqi in 237 A.H. Ibn FarQ.un, al-Dibiij. pp. 106-7. Makhluf, fabaqat. p. 67. See also Ibn ijajar, Tahdhib al-Tahdhib. 2:156. Al-Zirikli, al-Acliim. 2:157. 34See Appendix B. 44 al-ijarith ibn Miskin rather than SaQ.nu.n ibn Sacid. Thus, from his work, Yal}.ya ibn cu mar had referred to the teachings of Malik, Ibn al-Qasim and Ibn Wahb through al-ij:arith ibn Miskin and some others, but not from Sal}.nun ibn Sacid. He only referred to Salpru.n in relation to a tradition concerning price-fixing, which he had also narrated from al-ijarith ibn Miskin and Abu al-Tahir35. On other occasions, he and sometimes the transmitters gave the opinions of Sal;nun without relating them to Malik or any other scholars. Therefore, it could be concluded that YalJ.ya had spend most of his period of study in Egypt in the company of his teacher al-IJ:arith ibn Miskin. This is illustrated in Appendixes. He then travelled to !Jijaz to study with Abu al-Zuhn36 and others. He may have been here for a short period because he only referred to the opinions of the Medinans on one occasion37 On his return, Yal].ya ibn Umar stayed at Qayrawan to continue his study with SaQ.niin ibn Sa'1d but later remained there. It is believed that YalJ.ya had also studied with 35See The text (second). p. 42. 36 Abu Mwtab AI] mad ibn al-Qasim ibn (d. A.H.). He was a Mad1nah in I;;lija.z. He narrated from Malik _and Ibn D1nar_ and Al-Bukhan and Muslim narrated from him. Ibn Farl}un, al-DlbUJ. p. 30. Makhliif, 'fabaqat. p. 57. See also Ibn al-'1mad, Shajarat alDhahab fi Akhbar man Dhahab. vol. 2, pp. 99-100. 37see the discussion on chapter three (price-fixing) in the summary below. The text (second). p. 44. 45 qti<J,i Yilsuf ibn Yal;tya3s. Although Yal;tya had studied with lbn I}:abrb in Cordova when he was young, it seems obvious from the text of the second version that he had acquired most of the teaching of Ibn I;Iabib through qacj,f Yiisuf ibn Yal;}.ya39. Soon after that, Yal].ya ibn cumar began to conduct public teaching in the Great Mosque of Qayrawan. He should have started teaching before 250 A.H., because Abii Bakr ibn al-Shibl who came from al-Andalus studied with him that year4o. During the time of Ya}J.ya ibn cumar, Qayrawan was under the control of the dynasty of the Aghlabids who ruled l{rfqiyyah (North Africa), Algeria and Sicily from 184-296/800-909. It is believed that the ruler of the Aghlabids at that time was Ibra.him ibn Alpnad II (261-289/875-902)41 because the amfr was the person responsible for removing the Malikls jurists from the public offices and replacing them with the ijanafi:s. He had terminated Ibn 'falib42 from his qacj,i's position and replaced him with Ibn cAbdiin. The former qacj,flbn 'falib then was sentenced to imprisonment and 38Abii CUmar Yusufibn Ya}Jya ibn MutJ_ammad al-Azdi (d. 288 A.H.). He had studied with YaQ.ya al-Laytm and Ibn I;Iabib in Cordova. He then travelled to North Africa and later remained in Qayrawan. He died in Qayrawan in 288 A.H. Ibn al-FaraQ.r, Tarikh. vol. 2, p. 64. Ibn Farl}iin, al-Dibiij. p. 356. 39The text (Becond). pp. 106 and 109. 40Ibn al-Fara<JI, Tiirikh. vol. 2, pp. 67-8. 41Al-Khushan1, Quqii(. p. 297. See Bosworth, The Islamic Dynasties. pp. 24-5. 42Abii al.CAbbas cAbd Allah ibn 'falib al-Tamimi (d. 275 A.H.). He was an associate of Yahya ibn CU mar and was appointed as a qaqf of l{rfqiyyah twice (from 257-259 A.H. and from 267-275 A.H.). After he had been removed from the office, he was sent to prison and later died in the same year. Al-Khushani, Quqiit. pp. 186-8. Al-Zirikli, al-Acliim. 4:93. 46 later died in prison in 275 A.H. Yal].ya ibn cumar was a close friend of qiifj.f Ibn 'falib. In fact, the work ofYal}.ya ibn cumar cited several legal decisions made by the qarjr and it is clearly indicated that YatJ_ya had agreed to all of his statements. Thus, probably Yal].ya ibn cumar had fear that he might be receiving the same treatment as his friend and he in fact had already sufferred some adversities which were coming from qaqi Ibn cAbdun43, so that he had to flee to his brother Mul}.ammad in Tunis. However, qaqi Ibn cAbdiin was informed of Yal)ya's presence in Tiinis, so he went into hiding in a ribat in Siisah (Sousse). The amrr, Ibrahim ibn Alpnad II then had changed his mind in giving favour to the Ijanafis, so he had removed Ibn CAbdiin from office44 It is believed that soon after that Yal}.ya ibn cumar started his teaching at the Great Mosque in Siisah. From the source, it is mentioned that there were two most distinguished jurists who conducted their teaching at the two Great Mosques. They were, qaQ,f Ibn 'falib who v1as in Qayrawan and Yal}.ya ibn cumarin Siisah45 It seems probable that this work of Yal)ya ibn cumar was based on his teaching at the Great Mosque of Susah. Thus, it is mentioned in the texts that Y al}.ya ibn cumar had received a written 43 Al-Khushani, QucJat. p. 297. See also the conflict between ~ l j a b al-rcty and } a b al-J;adfth. Isabel Fierro. "The introduction of l].adrth in al-Andalus". Der Islam. 1989 pp. 81-3. 44Al-Khushani, Quqiit. pp. 184-6. 45Ibn FarQ.iin, al-Dibiij. pp. 351-3. 47 petition from the market supervisor al su- ) f Q - I d 'If 'J' - q o ayra wan. nstea , he was asked in person by the market supervisor of Susah. It should be noted here that during this period, people had made their ri}Jlah from al-Andalus, Qayrawan and the surrounding districts to study with Ya.l)ya ibn cumar. Amongst his students were his brother, Mul].ammad ibn CUmar46, the transmitters of the two texts47, Abu Bakr ibn al-Libad 48, Abu al-cArab 49 and Al}mad ibn Khalid al-Andalusf5. 1.3. The transmitters As previously mentioned, there are two versions of the work ofYa.J;ya ibn cumar. The first version was transmitted by Ibn Shibl and the second by Al}mad al-Quari. With regard to Ibn Shibl, M.A. Makki held that the only available source on him was a brief account by Ibn According to this source, the transmitter's full name is Abu cAbd Allah Mu}J.ammad
ibn CUmar (214- 310 A.H.). His teachers were almost the same as his brother YaQ.ya ibn CUmar. He was in Tiinis when his brother went into hiding from qacJi Ibn cAbdun. However, after the death of his brother he had travelled to Egypt and later died there in 310 A.H. Ibn al-FaracJ.1, Tiirikh. vol. 2, p. 37. 47See the discussion below. 48Ab'l1 Bakr MuQ.ammad ibn MuQ.ammad ibn al-Libad al-Qayrawanr (d. 333 A.H.). He studied with Yatlya ibn CUmar and his students were al-Khushani and Ibn Abi Zayd al-QayrawanL Ibn Farl}iin, al-Dibiij. pp. 249-150. MakhlUf, 'fabaqiit. p. 84. 49 Abu al-e Arab Muhammad ibn A1pnad al-Tamimi (250-333 A.H.). One of the great Maliki scholars who is said to a have written about 3500 books. He died in Qayrawan. Ibn FarQ.ftn, al Dibaj. pp. 250-1. MakhlUf, '.fabaqiit. pp. 83-4. 50 Abu CUmar Ahmad ibn Khalid (d. 322 A.H.). Al-Khushan1 frequently refers to him throughout his booko Qucjiit Qurtubah. See Makhluf, 'fabaqiit. p. 87 48 ibn Salfm ibn Shibl al-Ifri:qi. He is said to have studied with SaQm1n ibn Sacrd and Mul}.ammad ibn Ruml;51 He died in 307 A.H52 However, there was another person who was known as Ibn al-Shibl and his full name is Abil Bakr Mul}.ammad ibn al-Shibl ibn Bakr al-Qaysl. He was born in al-Andalus and started his education in Cordova. He then travelled to Qayrawan in 250 A.H. to study with Yal}.ya ibn cumar and later on to Susah. Mter completing his study he returned to al-Andalus and was appointed as an lmiim to lead prayers. He died in 353 A.H. when he was more than a hundred years old 53. Although it is possible that he might be the transmitter of the first version, because it is mentioned that he had studied with Yal}.ya ibn cumar, it seems more likely to be Abu cAbd Allah ibn Shibl since the text had clearly indicated that the kunyah of Ibn Shibl was Abu cAbd Allah, not Abu Bakr54. The second version was transmitted by Al;mad His full name is Abu JaCfar Alpnad ibn Mul}.ammad ibn CAbd al-RalJ.man ibn sacrd 51The study has not able to locate him. However, he was also of the teachers ofYaQ.ya ibn CUmarin Egypt. He had studied with the student ofibn al-Qas1m, Ibn Wahb and Ashhab. See Ibn al-Faracj1, Tiirikh. vol. 2, p. 181. 52Ibn Farl}i.in, al-Dibllj. p. 319. 63Ibn al-Faracj.I, Tiirikh. vol. 2, pp. 67-8. 54 See The text (first). p. 103. 55See The text (second). p. 31. His name also frequently occurs throughout the text. See summary of the text. 49 al-QuarL He studied with IsQaq ibn cAbdus56 and transmitted the works of several scholars including those ofYal}.ya ibn cumar, qacj,r CAbd Allah ibn 'falib and others. AlJ,mad was known for being devoted to learning, writing and compiling books. He was known for his honesty and accuracy in his writing of what he transmitted from the scholars of his time. In an account given by his student, AlJ.mad is said to have made several inquiries of his teacher YalJ.ya ibn cumar. AJpnad asserted that Yal}.ya would give the same answers even though the inquiries were made on different occasions57. Among his students who narrated from him are Ibn al-Libad and Abu cAbd Allah ibn I:larith al-Khushani58 He died in 322 A.H59. 1.4. An analysis of the texts 1.4.1 The Isniid The text of the first version has clearly indicated that it consists of legal opinions of Yal}.ya ibn cumar who was asked about various matters 56Isl}nq ibn cAbdus. He studied with Sa}plu.n together with his elder brother MuQ.ammad. Al-Khushanr, Quqat. pp. 182-3. 57 Al-Khushani", Quqiit. p. 184. 58Abu cAbd Allah ibn IJarith al-Khushanr (d. 361 A.H.). The of the book, u at u ubah wa al-cUlamrl al-lfrfqiyyah. He started his study 1n later .; al-Andalus. He began his riljlah at the age of twelve. Ibn al-FaraQ.i, Tarikh. vol. 2, pp. 114-5. 59 AI-Khushani, Quqiit. p. 184. MakhlUf, 'fabaqiii. p. 82. 50 related to the market. These legal opinions w th '1 d b ere en campi e y an unidentified person based on what had been transmitted to him by AbU. c Abd Allah ibn Shibl from his teacher YaQ.ya ibn cu mar so. As for the second version, at the beginning of the text, we read "Alpnad ibn MulJ.ammad ibn cAbd al-Ral}.man reported to us from YaQ.ya ibn CUmar" (l}addathana Alpnad ibn Mul}ammad ibn cAbd al-Ral}man qal samictu Yal}ya ibn cumar yaqul)61 It is clear that this text was transmitted by Alpnad al-Quari and was compiled later on by his students who took it from him. 1.4.2. The styles and the approaches According to the editors of the two texts, the second version is more complete than the first. This, in fact, was an assumption made by M.A. Makkl, the editor of the first version, based on the the fact that the word mukhtaarah (an abridged or summary) was found at the beginning of the text. This word is not found in the second version. M.A. Makkl also points out that his assumption was confirmed by ijasan ijusru cAbd al-Wahhab who had a copy of the manuscript of the second version which he thought to be a "complete version" of the text62. ijasan ijusru cAbd al-Wahhab also 60The text (first). p. 103. 61The text (second). p. 31. 62See I;;I. I;;I. cAbd al-Wahhab, al-lmiim al-Miizari. p. 28. 51 stated that he intended to edit the manuscript wh h t n1 d , 1c 1n 1ac , o y appeare in 197563 However, it seems possible that the word mukhta{iarah was an introduction to the text. This is because it outlines the relevant subjects that are to be described in detail in the text. It should be noted here that the word mukhtaar was also used by al-Shayzan in his introduction64. Thus, probably, the word mukhtaarah was a mistake in editing the text and could be replaced by the word munl}airah (consisting of). There seem to be two different approaches found in the texts. The first consists of questions and answers. As for the first version, the questions are mostly derived from unidentified persons and only on three occasions do they appear to be from the transmitter Ibn Shibl65. However, in the second version most of these questions are derived from the transmitter Al}.mad al-QuarL Thus, on most occasions, we read qfla, qala and suJila Yal}.ya in the text of the first version, whereas, the words qultu and saJaltu Yal)ya were found in the second version. Therefore, it seems probable that the text of the second version was a series of discussions between Alpnad and his teacher Y alJ.ya ibn CU mar. However, on certain occasions, both texts have indicated that the questions were derived 63Ibid. See the commentary made by M.A. Makld. in RIEEI. p. 62. 64Al-Shayzari, Nihayah. p. 3. 65The text (first). pp. 138-9 (the sale of figs), 140 (slaughtering an animal) and 142 (qadhf). 52 from the market supervisor (dl]ib al-saq). These questions were mostly in form of verbal inquiries, but occasionally, written petitions were also made to Yal}ya ibn cumar. On some occasions, Yal].ya gave the statements made by his teachers in order to support his opinions. This includes the statements of Malik, Ibn al-Qasim, Ibn Wahb, Ashhab, Ibn Majishiin, Abagh, Ibn ijabib and Sal}nun. As a matter of fact, it is in this matter that the two texts have demonstrated a very significant contrast between them. This is because the second version has provided full chains of isnads of the transmitters involved, which are not to be found in the first version. Thus, the second version has also produced valuable information about the teachers of Yal)ya ibn cumar. From the text of the second version, it is obvious that Yal}ya ibn cumar has consistently attached himself to his teacher al-Ijari th ibn Miskin, even though he was considered as an associate of Sal}.nUn ibn Sac1d. The second approach includes statements made by Yal}.ya ibn cumar without being asked by anyone. Son1etimes, YaJtya ibn cumar referred to verses of the Qu,Jan and the traditions to support his arguments. However, some of the traditions found in the second version have been omitted by the first version66. On other occasions, there are also statements made by the transmitters regarding certain legal decisions made mostly by qticJi Ibn al-66See the tradition on determining the unit of measure of capacity and the tradition on price-fixing. See The text (second). pp. 39 and 42-3. 53 Talib, where Yal}.ya ibn cumar was asked D h' . . . or IS optruon regarding those matters. There are also statements made b th t Y e con emporanes of Y al}.ya ibn Umar, such as Mul;lammad ibn Abdus, I;Iamdis al-QaUiin67 and qiicji Ibn Marwan68. However, in the case of IJamdis al-QaWin, his statements were made without been referred to Ya}Jya ibn cumar69. Therefore, it seems possible that these statements were derived from the transmitters and not from Yal)ya ibn cumar. Moreover, the two texts have differed in this matter. Thus, the statement made by Ijamcli's al-Qattan on immoral behaviour cannot be found in the first version70. On the other hand, the first version had referred to his opinion on a matter related to the method of slaughtering of an animal, which is omitted by the second version71. 67 Abu Jacfar Al}mad ibn Mu.l}ammad al-Ashcan known as I}:amdrs al-Qattan (d. 289 A. H.). lbn Farl;}un and Makhlfrf have suggested that he was born in 230 A.H. This seems to be not acceptable because on the account of I;,Iamd1s himself he had made a statement that he was in the company of his teacher SaQ.nun from the year 223 A.H. until the latter died in 240 A. H .. This statement can be found in the first version of the work ofYal}ya ibn CUmar. Moreover, Makhluf is a position to consider ijamdi"s as one of the most senior students and associates of SaQ.nun. Thus, it seems that this statement of ijamdis is more acceptable in this matter and it is believed that he was born much earlier than 230 A.H. Furthermore, he was a contemporary ofYal}ya ibn CUmar and died in the same year as he. Ibn FarQ.un, alDibiij. p. 31. Makhluf, 'fabaqiit. p. 71. The text (first). p. 141. 68Hamas ibn Marwan ibn Samak al-I}:amdani" (222- 304 A.H.). He was born in Qayrawan and had studied with Sal}nun ibn sacyd. He became a qaqfin 290 A.H. Al-Khushan1, Quqiit. p. 153. 69See The text (first). p. 141, The text (second). pp. 133, 134 and 135. 70See The text (second). pp. 133-5. 71See The text (first). p. 141. 54 Even though the subjects of the discussions found in the two texts have been divided into separate chapters, they were not properly arranged. The issues discussed in the two texts can be classified into three parts: a) The first part in the text of the first version is from the beginning to chapter thirty 72, and in the text of the second version from the beginning to chapter nineteen 73, where the issues are concerned with unlawful sale transactions. b) The second part in the text of the first version is from chapter thirty one to chapter thirty nine74 and in the text of the second version from the discussion found from chapters twenty to thirty75 which involves unlawful conduct, mostly not related to the acts of selling and buying, except for chapter twenty one 76 (the sale of tops and dolls) and twenty two77 (the making and selling of nabidh). However, in the text of the first version, these topics are discussed 12The text (first). pp. 103-119. 13The text (second). pp. 31-76. 14The text (first). pp. 119-128. 75The text (second). pp. 76-98. 16The text (second). pp. 83-4. 77The text (second). pp. 85-6. 55 in chapters twenty eight78 (the sale of tops and dolls) and thirty two79 (the making and selling of nabrdh). c) The third part in the text of the first version is from chapter forty to chapter fifty seven80, except for chapter fifty four81 (on gifts for the bride) and chapter fifty five82 (on qadh{J, whereas in the text of the second version the discussions are from chapter thirty one to the end of the text83 which is again concerned with unlawful sales transactions, except for chapter forty five84 (on immoral behaviour). The discussions found in this part are sometimes a repetition from those of the first part, for example the discussions regarding weights, measures and fixing the price of goods. The repetition is obvious not only in terms of the arrangement of the chapters, but also the issues mentioned. The text has also repeated a number of issues in separate chapters, like matters relating to weights and measures, cheating by selling figs rubbed with oil, bread which was insufficient in weight 78The text (first). pp. 117-8. 19The text (first). p. 123. 80The text (first). pp. 129-143. 81The text (first). pp. 141-2. 82The text (first). p. 142. 83The text (second). pp. 98-135. 84The text (second). pp. 133-5. 56 and disapproval of women entering public baths who are regarded as not having a proper reason. The two texts have also differed in terms of the arrangement of chapters. Thus, the first version puts the discussion on sellers of grain after the chapter on rubbing the figs with oil, contrary to the second version85 Even though the first version consists of fifty seven chapters and the second version has only forty five chapters, in fact, both texts are very similar. This is because sometimes the first version has divided some of the questions and answers into two separate chapters, whereas the second version combined them in one chapter. Furthermore, on some occasions the second version has merged some of the chapters of the first version into one chapter. The contents of the two texts are very similar, except for some omissions in both of them. The first version has omitted the chapter on selling fruit and salted fish in jars and containers86, the chapter on what it is permissible for the market supervisor to receive from the vendors87 88 h di . and the chapter on immoral behaviour . Sometimes, t e scuss1on or 85The text (first). p. 109. The text (second). p. 48-52. 86The text (second). pp. 120-4. 87The text (second). pp. 131-2. 88The text (second). pp. 133-5. 57 certain chapters in the second version is more complete, as for example in the chapter on weights and measures89, the chapter on price-fixing90, the chapter concerning the mixing of meat91 and the chapter discussing the "permissible monopoly"92 However, on some occasions the first version has also provided further information which cannot be found in the second version. They are the discussion on the sale of bitter cucumbers93, selling by a person suffering from leprosy94, the discussion on a person who had dug a pit95, the chapter on slaughtering of animals and selling their hide96, the sale of clothes infested with lice97, the chapter on basic house equipment and wedding outfit for the bride98 and the chapter on qadhf9 Based on the above discussions, it seems the statement made by the editors of the two texts that the second version is more complete than the first is not acceptable. In fact, on certain occasions, the first version has 89The text (second). pp. 38-40. 90The text (second). pp. 44-4 7. 91The text (second). pp. 69-70. 92The text (second). p. 72. 93The text (first). p. 114. 94The text (first). pp. 129-130. 95The text (first). p. 127. 96The text (first). pp. 140-1. 91The text (first). p. 137. 98The text (first). pp. 141-2. 99The text (first). p. 142. 58 provided some valuable information which are not found in the text of the second version. Thus, in this matter references to the work of Y a.l].ya ibn cu mar should be made into the two texts. Further differences between the two texts will be made clear in Table 1.1 and in the paraphrase in a following chapter. Table 1.1. The differences between the two texts Found in chapter Not found one ( . 103) Found in chapter Found in chapter two one 59 SubjectS ofthe Firstver8iOri. . Theuse of different Separated the Combined the weights and question in chapter question and answer measures three and the in chapter two. answer in chapter Included also the four question on price-(pp. 104-5) fixing in chapter two ( . 35-40) Price-fixing Separated the Separated the question in chapter question in chapter eight and the answer two and the answers in chapter nine in chapter three (p. 106) (pp. 40-7) . ... . ' ... .: ., Not found Found in chapter levied by the five millers (p. 105) Sftbjects of the . I Negligence the . : : : : :. : :' . . . . .:. 60 < . . . ,/ . ' . . . ".. ' ' . ,. ... . Found in chapters Not found six and seven (p. 105) Discussed markets of Discussed markets of mir and Qayrawan qar and Qayrawan in chapter ten in chapter four (p. 108) (pp. 47-8) Found in chapter Included also the eleven discussions on milk (p. 109) added with water and bread insufficient in weight in chapter six 61 ;:.-.. ,} . . . . ' . ' :'. . .. ' .. '.: ' .. - . . . _; . Included also the Found in chapter .... ;' discussions on milk five ', added with water and (pp. 48-9) bread insufficient in weight in chapter twelve (p. 109) Found in chapters Found in chapter thirteen and seven fourteen (pp. 52-4) (pp. 110-111) Found in chapter fifteen Found in chapter eight stones:. (p. 111) (pp. 54-6) . .;, Bread.insufficie'rit Found in chapter Found in chapter in weight sixteen nine . . ... : ..... . . ' of:the .. , .. , \ :, '. . : _. ... , . . . . . ' : . . . . . ' . .-;.:,. _ .... '. , ..... ,... .. Bakets. lrtixib.g the:. ' ' 'v ' ' ' .' ... ; ; ' ' ' ' ,' .:':,; I ;' . . .. , ' . .,. . . . . ....... :." . ; . . :: . '. . . :. . . .. ........ , ,' .. . . . "'":.. , ... . . . : . . : :: ' ... . . 1 .. ..bn_ . ..V.;; : .._; ' o ... .':, ' '' . ' . . . . . , . .. . . .. .. ' . ' . . . cU:CWnber . ' .... . . . . 62 _ > -- .. ,SeCond :_.......... :_- ' I ' ; . ' c .. .. Found in chapter Found in chapter seventeen ten (p. 112) (p. 59) Found in chapter Found in chapter eighteen eleven (p. 112) (pp. 59-60) Found in chapter nineteen and twelve twenty (pp. 60-3) (pp. 112-3) Found in chapter Found in chapter twenty one thirteen (pp. 113-4) (pp. 63-5) Not found twenty two (p. 114) . . ; .... . ' .. .old. . . . ' . . ..... _. .. . '. .. . . . . . ' .; , - ,. ' ' 63 Found in chapter Found in chapters twenty three fourteen and (pp. 114-5) fifteen but omitted the discussion on the sale of spoiled eggs (pp. 65-7) . . .. Found in chapters Included also the ; and.iP,e twenty four and discussion on blowing . : '' . twenty five into carcasses in .- . . .. .. .. '.[ :_;: . . ' . . ... ' .. (pp. 115-6) chapter sixteen (pp. 68-71) Found in chapter Included in chapter -:- .. . . \ _: __ ,-_-;./;. twenty six sixteen above : - . carcasses (pp. 116-7) (Butchers mixing the meats) 64 . -Subjects ..ofthe "Permitted Found in chapter Found in chapter _:monopoly" twenty seven seventeen (p. 117) (pp. 71-2) .The-:saie of dolls . Found in chapter Found in chapter twenty eight twenty one (pp. 117-8) (pp. 83-4) .: Found in chapter Found in chapter twenty nine eighteen ,, '. (p. 118) (pp. 73-4) Included in chapter Included also the ,: >. ... : > . .. : . . .. :. , . twenty nine above case of missing (The sale of unripe vendors in chapter fruit) nineteen . 118) 65 . : : Found in chapter Included in chapter thirty nineteen above (pp. 118-9) (The sale of shrunken clothes) (pp. 75-6) ... :-?fuvitatioli:':t_o. .. . "' , . "' .... ; , .. : .. , Found in chapter Found in chapter f, ;: :. '.: ':: :;. : *eldiJ!g thirty one twenty (pp. 119-122) (pp. 76-83) Found in chapter Found in chapter thirty two twenty two ( . 123) ( . 85-6) Found in chapters Found in chapters . -bathS .. thirty three and twenty three and fifty six included in chapter (pp. 123-4 and pp. thirty seven _ ..142-3) (hoarding) 66 . ' .' '' : :_ .. _. : .;.: ..: : ', . . ': _. ' . : . . . : ... : : Found in chapter Found in chapter , .... .. thirty four twenty four : .... . .. , ' ;(,relatives. ... ,:,,. .. ' : .. ; (pp. 124-5) (pp. 89-91) . . .. . . ; .. . ' .. Found in chapter Found in chapter thirty five twenty five (p. 125) (pp. 91-2) Found in chapter Found in chapter thirty six twenty six (p. 126) (pp. 93-4) Found in chapter Found in chapters thirty seven twenty seven and (pp. 126-7) twenty eight (pp. 94-5) c :: Found in chapter Found in chapter ," .... :; . .l ..... thirty eight a. .. (p. 12 7) . < >" > . . . ,_.thirty. Omitted the discussion on digging a pit (p. 98) .. ., . . : . . . .. ' . 67 . ,, ,; Subjects: of. the : ' . . . ' . . . . . Found in chapter Found in chapter . - . thirty nine twenty nine (p. 128) (pp. 96-7) Found in chapter Found in chapter forty thirty one. Omitted , .. .... : (p. 129) the sale by those who .-.- >-:_:_. are sick ( . 98-9) Found in chapter Not found forty one ( . 129-130) Found in chapters Found in chapters forty two and forty thirty two and four thirty five ( . 130-2) ( . 99-103) . . . . . . Price: Found in chapter Found in chapter . . .. "' . forty three thirty three . 132) L L 68 ; . ', . . Found in chapter .. _ :.::meastti;es forty five (pp. 133-4) Found in chapters forty six and forty seven . 135-7) : .. Found in chapter .. :... ' . ' ...... . .. t > <.!) forty eight (p. 137) Not found . '. .. :ana ..: . . < .: ;' :: ....... . The.sale clothes _ Found in chapter forty nine ... ' '. . 137) Found in chapter thirty four (pp. 108-111) Found in chapter thirty seven (pp, 113-7) Found in chapter thirty eight (p. 118) Found in chapter forty (pp. 120-4) Not found L Subjects . The sale:ofashes-' <fi.gs .. )". . . . . . . ', .: .... ' : .. -'. ' . . . Basic house and weddfug outfi.t.fot 'the bride. 69 Found in chapter Found in chapter fifty forty one (p. 137) (pp. 124-5) Found in chapter Found in chapter fifty one forty two ( 0 138) ( 0 125-8) Found in chapter fifty two forty three (pp. 138-140) (pp. 128-131) Found in chapter Not found fifty three 0 140-1) Found in chapter Not found fifty four (pp. 141-2) 70 -First version Second Adiscussion on Found in chapter Not found 'qadhf fifty five (p. 142) Not found Found in chapter forty four ( . 131-2) , 0 ' Not found Found in chapter forty five . . ) - .(pp. 133-5) : : . Found in chapter Found in chapter aJid fifty seven thirty nine 1.4.3. The important elements in the texts There are three main elements in the discussion: One of these is concerned with the person who is regarded as responsible for carrying out the duty of supervising the market. The second is regarding the duties to be carried out and the third deals with the punishments for offenders. 71 Regarding the first element, the texts make it clear that the duty of supervising the market was the responsibility of the Governor100 He then would entrust this duty to a special officer known as caza al-silq and also til}ib al-suq101 Regarding these two terms, the texts have used the term til}ib al-saq when they are referring to the market supervisors of Qayrawan102 and Susah103. The same term was used to refer to the market supervisor during the time of Malik ibn Anas104 However, the term naiir caza al-silq was applied when Yal}.ya ibn cumar was explaining the theory of the responsible person to carry out the duty of supervising the market. Thus, this term was used together with the terms wtilt: (the Governor) and qaqr105. On that basis, it could be assumed that the term calti al-silq is more general than the term til}ib al-silq. It should be noted that at this stage, the duty of the supervision of the market and those related matters were carried out by the Governor, the qaqt: and the market supervisor al-silq and caza al-silq). 100The text (first). pp. 103 and 105. The text (second). pp. 31, 39 and 47. 101The text (first). pp. 103, 108, 112, 128 and 129. The text (second). pp. 31-2, 33-4, 37, 38, 40, 47, 57, 73, 96, 98, 103, 104 and 115. 102The text (first). p. 128. The text (second). p. 96. 103The text (first). p. 129. The text (second). p. 98. 104The text (first). p. 132. The text (second). pp. 73, 103. 105The text (second). pp. 47, 73. l 72 With regard to the second element, the texts mention various duties which can be classified into two separate categories: i) the duties that are concerned with unlawful sales transactions in the market, ii) the duties which do not involve sale transactions. Regarding the duties that are concerned unlawful sales transactions, they are as follows: a) Price-fixing (tascfr)106, (Further discussion on this matter will be made at the end of chapter two of this thesis) b) Administering the use of standard weights and measures and punishing those who falsify them after a warning has been givenl07, c) Supervising the vendors so that they can be prevented from conducting unlawful sales transactions. Thus, the public will be protected against cheating, adulteration of the goods and negligence of the vendors. [This is the main discussion of the work ofYa.Jtya ibn cumar]. d) Observing the rights of the purchaser concerning the repayment, the right of option (khiyiir) and the right of workers to receive their wages108. 106The text (first). pp. 106, 132, 135-7. The text (second). pp. 40-7, 103-4, 113-7. 107The text (first). pp. 104-5, 133-4. The text (second). pp. 35-40, 108-111. 108The text (first). pp. 138-140. The text (second). pp. 128-131. L 73 Matters relating to unlawful conduct which do not involve sales transactions are as follows: a) Obligation to respond to an invitation of a wedding and playing with musical instruments109 b) The use of public baths110 c) Crying aloud over the death of relatives111 d) Visiting graves112 e) Wearing shoes that make noises113 f) A door of a house situated in a narrow lane. However, the first version has also included the discussion on the person who digs a pit in front of his house114 g) Ahl al-dhimmah 115 h) A person suffering from leprosy (judhiim). However, the second version omits this116 109The text (first). pp. 119-122. The text (second). pp. 76-83. 110The text (first). pp. 123-4, 142-3. The text (second). pp. 86-9, 117. 111The text (first). pp. 124-5. The text (second). pp. 89-91. 112The text (first). p. 125. The text (second). pp. 91-2. 113The text (first). p. 126. The text (second). pp. 93-4. 114The text (first). p. 127. The text (second). p. 98. 115The text (first). p. 128. The text (second). pp. 96-7. 116The text (first). pp. 129-130. 74 i) Slaughtering an animal. However, the second version omits this117 j) Basic house equipment and wedding outfit (jihaz) for the bride. However, the second version omits this118 k) Immoral behaviour. The first version omits this. However, it includes the discussion on qadhf119 The third element of the discussion is concerned with the punishments for offenders, which are as follows: a) Returning defected goods b) Paying compensation c) Destroying unlawful musical instruments and pots for making nabfdh d) Confiscating the goods e) Beating f) Parading in the market area g) Banning from the market h) Detention i) Being chained and detained at home. This punishment is for young offenders. However, the first version omits this. 111The text (first). pp. 140-1. 118The text (first). pp. 141-2. 119The text (first). p. 142. The text (second). pp. 133-5. 75 Further discussion on this third element will be made in chapter three of this thesis. Based on the above information, the texts seem to suggest that there are two important aspects of the supervision: One of these is concerned with economic activities in the market and the second deals with moral and religious behaviour. However, in some cases, the texts have included some discussions on matters related to the health and the basic administration of the town. Examples of these are in the cases when YalJ.ya ibn cumar disapproved of the sale of unripe dates soaked in vinegar120 and the practice of the vendors who were blowing into the carcasses because such acts might have spoiled the food and be harmful to the person who had eaten them121. Also, the disapproval of a person who is suffering from leprosy to take ablution and wash himself in a running water because other healthy person might be affected by him122 With regard to the basic administration of the town, YalJ.ya did not allow the house owners who are living in a narrow lane to create a door or an entrance to their house which would obstruct the passers-by123 He also emphasised that the vendors should be held responsible to ensure cleanliness in the market place, 120The text (first). p. 118. The text (second). pp. 74-5. 121The text (first). pp. 116-7. The text (second). pp. 70-1. 122The text (first). pp. 129-130. 123The text (first). p. 127. The text (second). p. 98. 76 particularly in matters concerning with the cleaning the mud from it124. Thus, it could be concluded that the subjects of supervision discussed in the texts involve four aspects; economic activities, moral and religious practices, health and basic administration of the town. It should be noted here that it seems that the purpose of the supervisions was to eradicate practices in those four aspects which are contradictory to Islamic law. Thus, Yal}.ya ibn cumar, who himself was one of the great Maliki jurists in North Mrica had rendered his legal opinions based on his understanding of the application of Islamic law and those of his teachers. He also referred to verses of the Qu,Jan and the traditions of the Prophet to support the statements that he had made. Above all, both texts clearly indicate that they are a compilation of legal opinions, mostly made by Yal}.ya ibn cumar. Although the words /;),isbah or mu/;),tasib are not found in the two texts, by referring to the three main elements mentioned above, the work of Yal}.ya ibn CUmar can, in fact, be considered as the earliest work on l:J,isbah. Thus, similar discussions on these three main elements have been carried out by later jurists in their works on ljisbah, which will be studied in the subsequent chapters of this thesis. Regarding the first element, according to Yal)ya ibn cumar, the duties of supervising the market and other related matters which were later known as l}isbah were carried out 124The text (first). pp. 126-7. The text (second). pp. 94-5. I I l 77 by the Governor, the qaqf and the market supervisor al-saq or caza al-suq). This could be because the office of a muljtasib did not exist at that time. Thus, his teacher Sal}.nun ibn Sa'1d had to assimilate some of these duties into his office of a qacjr125 Furthermore, the second and third elements of the texts had shown some resemblances to the later works on l]isbah. Thus, the mul],tasib was then held responsible to carry out the duties that are extended from the market to cover all four aspects. The fact that there had been an increase in the duties of the mul}tasib in the later period in matters relating to the moral and religious aspects, health and administration of the town could be because during the time of Y al}.ya ibn cumar, the institution of }Jisbah was only at a preliminary stage. 125Qaqr 9:yaQ., Tartib al-Madiirik. 2: 600. Ibn Far}Jiin, al-Dibaj. p. 163. MakhlUf, 'fabaqiit. pp. 69-70. See also previous discussion in the Introduction p. 12. 78 CHAPTER TWO A paraphrase of the work of YWJ.ya ibn cumar There is some difficulty in arranging the paraphrase of the two texts. This, as discussed earlier in the analysis is due to the fact that both texts have omitted some of the chapters, so that there are some discussions which can be found in the first version but not in the second and vice versa. Thus, it seems unacceptable for this study to follow the arrangement of chapters used by the two versions. Instead, an alternative classification is needed, that is by merging the two texts, which would eventually include the discussions that have been omitted by both of them. Introduction This book is a compilation of legal opinions on matters that are concerned mainly1 with the supervision of the market. It consists of various chapters on matters related to weights and measures, on price-fixing, on the sale of unripe fruit, on the bakers and the butchers, on the 1This word is added to the texts. This is because as mentioned earlier in the analysis that some of the discussions found in the texts are not related to the acts of selling and buying in the market. Instead, these matters are mainly involved with those practices contrary to the correct moral conduct and religious teachings of Islamic law. See pp. 73-4 above. 79 sale of tops and dolls, on adulteration and cheating with various goods, on musical instruments and nabidh, on public-baths, on crying aloud over the death of relatives and visiting their graves, on shoes that make noises, on the person who had spilled the water and caused injuries to others, on cleaning the market place, on the person who had dug a pit that had caused injuries to someone else, on a door to a house, on ahl al-dhimmah, on persons who are suffering from serious illnesses, on cheating in weights and measures, on price-fixing and on hoarding. Inquiries in these matters have been made to Yal}.ya ibn cumar who then gave his legal opinions and these were compiled based on what had been transmitted from Abii cAbd Allah ibn Shibl by his students who took it from him2. Chapter One: A statement on matters which require markets to be supervised Ya:Q.ya ibn cumar reported3 that it is necessary for the Governor (walf) who is seeking justice for his people to supervise the market of his people and entrust a person who is the most trusted in his city with the duty of observing (cahida) the market and carrying out tests to 2However, the second version omits this. The text (first). p. 103. 3The second version held that this statement ofYal}ya was narrated by the transmitter, Al}.mad to his students. However, the first version omit this. The text (first). p. 103. The text (second). p. 31. 80 determine the correct measures (cayara)4 on the instruments for weighing (fianajat)5, the weights (mawazfn) and the measures of capacity (makayil)6 If the official appointed finds someone who has changed them, he will punish him according to the offence committed and in consultation with the Governor. Then he should ban the offender from the market until his repentance and the transformation of his character (niyabah) has become apparent7 The Governor must not ignore8 a situation where counterfeit coins (mubahrajah) appear in the market, or coins which have been mixed with copper (nul}as). He should be strict in the matter and investigate the person who produces them. When he achieves that and whether it involves only one person or a syndicate, he should warn (nakal) them and give an order to punish them by parading them ('awaf)9 in the market area, by driving (sharada) them from behind so that they will fear the severity of the penalty in the Hereafter which has been revealed for them and they will 4Lane. Book 2:2208. Munjid. p. 537. 5Singu1ar, anjah or sanjah. Lane. !bid and 2:1441. Hava. p. 339. Munjid. p. 354. 6See El(2). vol. 3, pp. 117-121. 7 The text (first). p. 103. The text (second). p. 33. 8The first version reads this as yuqbal (to accept), whereas the reading of the second version was yughfal (to neglect or ignore). The meaning of the later seems to be more acceptable than the former. See The text (first). p. 103. The text (second). p. 33. 9See also the penalty of public disclosure (tashhir). M.S. El-Awa, Punishment in islamic Law. 1982, pp. 102-3. 81 also be detained for a certain period of time according to the opinion of the Governor. The Governor then must entrust a trustworthy person to observe the matter so that the people's darahim 10 and dananrr11 will be sound (yatrb) and the coins (nuqud)12 will be protected 13. Chapter Two: Legal decisions on matters related to measure of capacity (mikyiil), weight (miziin), amdiid14, afqizah15, artiil16 and awaqi11 A written petition was made by someone to Ya}J.ya. ibn cumar concerning the sale of wheat (qamq) and barley (sha0fr) using measures of 10Singular dirham, silver coin. Lane. 1:876. 11Singular drnar, gold coin. Lane. 1: 919. See also El(2) vol. 2, pp. 297-8 and 319-320. 12Singular naqd which is applies to both silver and gold coins. Lane. 2:2836. 13The text (first). pp. 103-4. The text (second). pp. 34-5. 14Amdiid, singl. mudd. A certain kind of measure of capacity (mikyal). It is mostly used to measure grain like corn. Lane. 2:2697. See also Munjid. p. 751. Hava. p. 712. Hans Wehr. p. 897. 15Aqfizah, singl. qafez. A certain measure of capacity consisting of ten maktikfk, according to the people of 9:raq, or twelve times what is termed of the mann. See also ~ a c which is a kind of measure of capacity but with different standard. Lane. 2:1746. See also Munjid. p. 646. Hava. p. 620. Hans Wehr. p. 781. 16Ar,al, singl. ra,l. A weight in various quantities according to places. According to Lane, ratl was used as an instrument for weighing or which one used as a measure of capacity, or rather both of them, as a pound-weight and a pint-measure. The half of what is termed as mann according to the standard of Baghdad is twelwe awqiyyah (ounce). The awqiyyah being an istar and two thirds. The istlir being four mathaqtl and half. Lane. 1:1102. Hava. p. 266. Hans Wehr. p. 345. 17Awaqf, singl. awqiyyah. A certain weight and it is said that 12 awqiyyah are equal to 2564g. Munjid. p. 266. See also Lane. Ibid. 82 capacity devised by the vendors (ahl al-l}awanft), which differed from that of the authorities (sultan) whose origin was unknown and when some vendors used a measure small in size and others a bigger one, whilst the public had accepted the standard measures (mac ayfr) laid down by the market supervisor18. Yal}ya ibn cumar answered that such a situation where the wheat and barley were sold using different measures should not happen in the markets of the Muslim cities (l}awaqir). If the community had a ruler, he should fear God and he should inform his subjects of the standard weights and measures, so that they will be known to them. The same applies to the instruments for weighing, like the qantitfr, artal, waybtit and aqfizah. According to YalJ.ya ibn cumar, the a11al are laid down on weights based on the tradition of the Prophet in relation to the payment of alms-tax on silver and gold (zaktit az-cayn)19, when he said: "There is no tax on less than five awaq20 of silver 21, and there is no tax less than twenty dfnar22". The awqiyyah is forty dirhams in weight and the amount of 18The text (first). p. 104. The text (second). pp. 35-6. 19Lane. 2:2216. 20See wariqa, plur. awaq or wiraq, silver coins which equal forty dirhams. See next sentence. Lane. supp. p. 3051. Hava. 864. 21Malik ibn Anas, Muwatta>. (riw. al-Shaybani). p. 114. Muwa(ta?. (riw. al-Laythi). p. 197. Muwatta>. (riw. al-Suyilfi). 1: 188-9. See also transl. A. Bewley, p. 93. 22See Malik ibn Anas, al-Mudawwanah al-Kubra. 1: 242-3. 83 weight of dananfr is for every ten dirham equal to seven danii,nfr of mathaqrl23. Therefore, the Governor should determine the unit of weights of the art;,al and the qanatfr on that basis and he should command his subjects not to change them. As for someone who has changed the standard measure, he should be punished and banned from the market until his repentance has become apparent24 The Governor should lay down the unit of measure for the measures of capacity of his subjects, like way bat and aqfizah based on the measure of capacity imposed by the Prophet for the payment of the alms-tax on grains in a tradition, in which he said: "There is no tax on less than five awsuq25". One wasaq equals sixty awac and one Cic equals four amdad of the Prophet's measure of a mudd. The Governor has to determine the measures of capacity based on the interest of his people by introducing matters that are beneficial to them and removing any inconveniences. This would be applied to all kinds of measures of capacity, as had been decided for the unit of measure for the way bat and aqfizah. Then he should warn his subjects not to change any amount of the measures of capacity and the 23The first version has omitted the discussion found from this section until the end of the chapter. The text (first). pp. 104-5. The text (second). p. 38. 24The text (second). p. 38.
ibn Marwan ibn Samak al-Hamdaru (222-304 A.H.), who was the student of Sal}nftn born in Qayrawan. He became a qac:Jr in 290 A.H. Al-Khushani, Quqat. p. 153. 75Notice that the liablity for the payment of the damage is now shifting from the baker to the vendor. The text (second). p. 58. 99 the vendor and the baker were liable for punishment. The vendor should also be warned not to sell bread of such kind in the market 76. When Yal}.ya ibn cumar was asked77 who should be punished, the baker or the vendor, he replied that if the vendor knew that the bread was insufficient in weight or was unleavened before he purchased it from the baker, both of them were liable for punishment 78 Chapter Twelve: A legal decision on bakers who had mixed wheat of good quality with a lesser Yal:J.ya ibn cumar was asked79 whether it is necessary for the baker to be compelled not to mix wheat of good quality with that of a lesser and what action should be taken against him if he had been warned, but did not abstain from it and was found doing such an act. YalJya replied that if a 76Tbe text (second). p. 58. 77The first version held YaQ.ya was asked by unknown person (qila lahu), whereas the second version indicated that the question was derived from the transmitter, .AlJ.mad a l Q ~ a r i (qultu li YaJ;ya). The text (first). p. 111. The text (second). p. 58. 78The text (frrst). p. 111. The text (second). pp. 58-9. 79The first version held that the question was asked by unknown person (wa sztila can), whereas the second version indicated that it was derived from the transmitter (wa sctaltu Ya}Jya ibn cumar). The text (first). p. 112. The text (second). p. 59. 100 warning had been given to him and he continued to mix them, he should be punished and be banned from the marketso. Chapter Thirteen: Legal decisions on a miller81 who ground wheat together with remnants found in the grinder (mit}Janah) Yal}.ya ibn cumar was asked82 whether the miller is allowed to grind wheat in a grinder containing remnants and what would happen if the public had employed him to do the job, should he be held responsible for replacing them with other wheat or a similar one. Ya!J.ya replied that he should be punished and is liable to compensate for the damage by replacing the same value of wheat. This had been reported to him by cUbayd ibn Mucawiyah from Abagh ibn al-Faraj83, he said that he had heard Ashhab ibn cAbd al-cAziz being asked the same thing, to which he replied that the miller is liable for the damages and he should be responsible for replacing wheat of a similar kind to the owner. However, Abagh argued that if the 80The text (first). p. 112. The text (second). p. 59. 81It seems that the reading found in the first version is more acceptable because the second version indicated that he was a baker (WJ!Jab al-faran) not a miller (W/IJtib al-ral],an). The text (first). p. 112. The text (second). p. 59. 82rr'he second version indicated that YaQ.ya was asked by the transmitter Alpnad in contrast to the first version. The text (first). p. 112. The text (second). p. 59. 83However, the first version omits the name CUbayd ibn Mucawiyah. The text (second). p. 60. 101 owner of the wheat knew of the damage and he approved of it, the baker is therefore not liable for i t84. Chapter Fourteen: Legal decisions on vendors who falsify the measures, cheating in food sold and other related matters Alpnad al-Quarl related from Yal:J.ya ibn CUmar from al-ijarith ibn Miskln from Ibn Wahb, in which he said that he heard Malik ibn Anas85 was asked about a vendor who had attached pitch C.Zift) to his measures so that they weighed more, even though the quantity of goods involved was small. Malik then said that the vendors who have adulterated their goods should only be banned from the market. In this case, the beating is not approved by Malik. However, Yal:J.ya considered that the ban was more severe than the beating86 Yal:J.ya ibn cumar related to Alpnad al-Quari that he heard from al-ij:arith ibn Miskin who reported from Ibn Wahb from Malik87 that he had 84The text (first). p. 112. The text (second). pp. 59-60. 85This is the reading of the second version. However, the first version only referred to the opinion of Ashhab, which was narrated by Yal}ya from CUbayd ibn Mucawiyah from ~ b g h ibn al-Faraj. The text (first). p. 112. The text (second). p. 60. 81lrrhis sentence is omitted in the second version. The text (first). p. 112-3. However, on another occasion, the second version also agreed that the ban is more severe than the beating. See The text (second). p. 70. Seep. 110 below. 87This is omitted by the first version. Instead, the text mentioned the name Malik only. The text (second). p. 60. I r I t1tI I : 102 said more than once that he disapproved (makrah) of a vendor selling unripe dates (busr) together with those which are ripe to obtain an immediate higher price. YalJ.ya ibn cumar then said that the same applied to figs which had been rubbed with oi188 Yal}.ya ibn cumar related to Al}.mad al-Quari that al-ijarith reported from89 Ibn Wahb that he heard Malik90 on being asked about a vendor who mixed food with that of different varieties, replying that he disliked the act of mixing food of different kinds while the price was the same. Ibn Wahb then said that Ma.lik was asked about a man who mixed the food of good quality with that of a lesser one91. Malik replied that, in fact, he should give away the food of good quality because this will harm the food. God said: " ... You should not aim at getting anything which is bad, out of it you may give away something ... 92", while the vendor might think that this would bring him profit, in fact it would destroy his religion. Malik maintained that it was necessary for that person to be punished so that he 88The text (first). p. 113. The text (second). p. 61. 89The text reads alIJarith ibn Wahb, which is incorrect. It should read as alIJarith can Ibn Wahb. The text (second). p. 61. 90The text (second). p. 61. However, the first version omits this. The text (first). p. 113. 91This sentence and remaining part of this paragraph is omitted in the first version. The text (first). p. 113. 92Al-Qur>an. 2:267. L 103 would not repeat such an act because the sale was considered an uncertain transaction (gharar)93. Alpnad al-Quari asked YaQ.ya what kinds of food were not allowed to be mixed and should the sale conducted by the vendor who mixed and sold the food be considered void and should he be punished. Y a.J;ya replied that the vendor should not sell food which was a mixture of good and lesser quality, and when he had been warned he should be banned from the market and only be allowed to sell food when his repentance was obvious94. Yal}.ya ibn cumar reported to AQ.mad a l Q u ~ a r l that al-Ijarith ibn Miskin had narrated from Ibn Wahb that he heard Malik ibn Anas95 asked about whether when the vendor who was selling milk mixed with water, the milk should be poured away. Malik replied that someone might pour away the milk, but he prefered it to be given to the poor. They then asked Malik should it be given away without any charges. Malik agreed if he was the person who adulterated the milk. According to Y a.J;ya, this was transmitted by Ashbab from Malik and it is acceptable to him. Someone 93The text (second). pp. 61-2. 94The text (second). p. 62. 95The isnad is omitted by the first version. Instead, reference to Malik was made by mentioning his name only. The text (first). p. 113. The text (second). p. 62. L 104 asked Malik whether adulterated saffron ezacfaran) and musk were to be treated the same as adulterated milk. Malik replied that their treatment would be the same if the vendor was the person who had adulterated the saffron and the musk, but if they were bought from another person who had adulterated them, no legal action could be taken against the vendor because that would be considered as stealing other people's property. Alpnad al-Quar1 then asked YalJ.ya96 whether the adulterated substance should be taken away from the vendor entirely. Yal}.ya agreed97. Chapter Fifteen: Legal decisions on the practice of mixing cow's milk with that of goats (ghanam) Alpnad al-Quar1 reported that Yal}.ya ibn CUmar had narrated from al-Harith ibn Miskrn from Ashhab ibn cAbd al-cAzrz that he had asked 0 Malik98 about cow's milk which had been mixed with that of goats. Malik replied that the vendor should inform the purchaser of the matter. Ashhab then asked Malik whether the vendor should inform the purchaser about 96This is the reading of the second version. However, the first version held that YaQ.ya was asked by an unknown person. The text (first). p. 113. The text (second). p. 63. However, Ibn al-Majishun disagrees and he is against confiscating the goods except when the value is nominal such as a amount of bread or milk. See pp. 128-9 above. 91The text (first). p. 113. The text (second). p. 63. 98This is the reading of the second version, whereas the first version only mentioned that Malik was asked by Ashhab on the matter. The text (first). p. 113. The text (second). pp. 63-4. iL 105 the fresh butter (zubd) and clarified butter (samn)99 produced from the milk which had been mixed. Malik agreed, but he preferred that the milk should not be mixed. Thus, the vendor will be punished for not informing the purchaser100. Y al}.ya then was asked if the contract should be considered void and the food be donated as a penalty for the vendor who had been warned but continued to mix fresh butter (zubd) made from cow's milk with that of goats, or when their milk were mixed and sold in the market and the vendor did not inform the purchaser of this condition. He agreed because the vendor had cheated the purchaser when he had been warned not to do so. Therefore, the food would be donated to the poor as a penalty. This is because such an act is considered as cheating which was prohibited by the tradition of the Prophet in which he said; "He who cheats us is not one of 99Butter can be clarified in various ways, such as by boiling, cooking or mixing it with a substance called sawcq. Lane. 1:1432. 100The text (first). p. 113. The text (second). pp. 63-4. 101However, the tradition is omitted by the second version. The text (first). p. 114. The text (second). p. 65. Seep. 3 above. 106 Chapter Sixteen: A legal decision on the sale of bitter cucumbers (qiththii}) Malik held that he did not understand why some of the purchasers wanted to return the cucumber to the vendor, which they had found to taste bitter. However, according to Ashhab, if the sale involved only one or two cucumbers, the purchaser may return them to the vendor when they are bitter. In the case where the sale involved large amount of cucumbers, Ashhab considered that the purchasers may not return the cucumber, except when all or most of them had become defective in taste102. Chapter Seventeen: Legal decisions on the sale of honey of good quality which had been mixed with that of a lesser and other related matters .Alpnad al-Quari' related from Yalfya ibn CUmar who had narrated from al-Harith ibn Misk1n from Ibn Wahb that he had heard Malik103 0 being asked about a man who mixed honey of good quality with that of bad one and sold it in the market. Malik replied that the sale was considered 102rrhe whole discussion is omitted by the text of the second version. It should be noted here that YaQ.ya had not been referred to in this matter. Presumably, this was added to the text by the transmitter. The text (first). p. 114. 103This is the reading in the second version. The first version, however has omitted the name al-I;;Iarith ibn Miskin and indicated that the matter was reported by Ibn Wahb who heard it from Malik. The text (first). p. 114. The text (second). pp. 65-6. 107 as a kind of cheating (ghashsh) because he had mixed the good quality with that of a lesser. Malik then said that the same applied to butter and oil, except when they are for his own use. Malik was asked about a man who had mixed them for one's own use, but later decided to sell them. Malik replied that such an act was not permissible. Alpnad al-Quarl asked Yal}.ya ibn cumar104 whether he agreed with all of these statements. Yal}.ya replied that he agreed with them105 Concerning the sale of eggs, the purchasers are entitled to return them to the vendors when they were found to be spoiled 106. Chapter Eighteen: A legal decision on a matter related to mixing old oil with new Yal}.ya ibn cumar was asked 107 about the practice of some of the vendors who had mixed old oil with the new and sold it in the market, whether the sale was permissible or should they be banned from doing so. 10"This is found in the second version, whereas the first version held that YaQ.ya was asked by an unknown person. The text (first). p. 114. The text (second). p. 66. 105The text (first). p 114. The text (second). p. 66. 106The second version omits this. It should be noted here that the text did not indicate that YaQ.ya or any other jurists were asked on the matter. Thus, it seems probable that it was added to the text by the transmitter. Furthermore, the second version did not mention this. The text (first). p. 115. 107The first version held that the question was asked by an unidentified person, whereas the second version maintained that it was derived from the transmitter, AIJ.mad al-QWJari. Thus, we find the first version reads qila lahu, whereas the words qultu li Yaljya ibn cumar was found in the second version. The text (first). p. 115. The text (second). p. 66. 108 If they had been warned but then admitted to committing such an act, should the sale be considered void and the oil be donated, and would the purchaser have a right for an option (khiyar) either to keep the goods or return them if he wanted to, or should the vendors be wamed first because they might argue that they had no knowledge of the ban? YalJ.ya replied that if the quality of the new oil and the old were the same, the matter was easy and the vendor should inform the purchaser of that. Therefore if he sold the mixed oil without informing the purchaser, the latter had an option (khiyar) either of keeping or returning the oil. In the case where he had mixed the oils which were of different qualities, then it was a kind of cheating which was not permitted. If they claimed to have no knowledge, like the nomadic people (badawf), they should be given a warning that the sale was not permitted in the market of the Muslims. If they repeated the offence, they should be punished and the goods be donated to the poor108 Chapter Nineteen: Legal decisions on matters related to mixing the goods and action to be taken against butchers and others who practised such an act Ya}J.ya ibn CUmar reported to Alpnad al-Quarl that he heard from cUbayd ibn Mucawiyah from ~ b g h ibn al-Faraj that he asked Ibn al-108The text (first). p. 115. The text (second). pp. 66-7. 109 Qasim109 about the butcher who had mixed fleshy meat (samin) with that which had less meat (mahzul) and sold them together at the same weight and price. Even though the purchasers were able to distinguish the fleshy and the fleshless meat, but they did not know the actual weight for both of them. Ibn al-Qasim replied that such a case is permissible if the difference in weights for these two meats is small, like five and six artal, as in the case of someone buying from the slaughter-house (majazir) with the difference of one dirham or two. But if the difference involves twenty and thirty artal and the like, then there is no benefit in doing so. Thus, it was necessary for the purchaser to be informed of the weights of each of kinds of meat, be ea use failing to do so would ea use the sale to be considered as an uncertain transaction (gharar) which has no benefit. Ibn al-Qasim maintained that the matter was also a kind of cheating which was not permitted110. Abagh then asked Ibn al-Qasim whether it was permitted for the vendor to mix the oil, butter and wheat of bad quality with that of good one. Ibn al-Qasim replied that such an act is not permissible for there is no benefit in doing so and he did not understand why he was asked this kind of question. Ibn al-Qasim then mentioned that Malik once told him about 109This isniid is found in the text of the second version. However, the first version has omitted this and indicated that Ibn al-Qasim was asked by an unknown person. The text (first). p. 115. The text (second). 68. 110The text (first). p. 116. The text (second). p. 69. 110 the same thing in which he said: "Up to now you still ask me this kind of question !"111. Al}.mad al-Quan asked Yal}.ya ibn cumar whether he agreed with these statements. YalJ.ya admitted that he accepted them112 Alpnad al-Quari asked Yaljya ibn cumar whether a sale, which involved someone who was unaware of the condition of the mixed meats as was mentioned by Abagh and Ibn al-Qasim, should be considered as void and whether he could return the meat to the vendor. In this case should the vendor be punished before a warning was given to him and the meat be donated to the poor entirely based on his first offence113? Yal)ya replied that when a purchaser bought the meat and he was unaware that it had been mixed by the vendor, he had the right to return the meat to the vendor and receive repayment from him, and the vendor had to be warned not to conduct such a kind of sale. If the vendor was given a warning but he did not abstain from it, he would be banned from the market. This is, in fact, more severe than a beating114 If he committed the offence for a second time, he would be punished and driven to the 111The text (first). p. 116. The text (second). p. 69. 112trhis is found in the second version. However, the text of the first version has omitted this statement. The text (first). p. 116. The text (second). p. 69. 113This section is omitted by the first version. The text (first). p. 116. The text (second). pp. 69-70. 114See p. 101 above. 111 market where he would be paraded and be banned from the market after that. If such actions were to be taken against him, it would frighten others from committing the same offence. The offender would also be banned from selling those goods, so as to deter others from doing the same thing, since such acts supposedly should have not happened in the market of the Muslims in the first place115. Chapter Twenty: A legal decision on a matter related to blowing into carcasses Yal}.ya ibn CU mar was asked 116 about the action to be taken against a butcher, should he be prevented from slicing (shara}Ja)117 and blowing (nafakha) into the carcasses118 If he had blown and sliced the meat, should he be warned first ? If he repeated the offence for the second time, what action should be taken against him, should he be detained, and should he be banned from the market if he repeatedly committed the 115The text (second). loc.cit. 116The first version indicated that Ya};;lya was asked by an unknown person, whereas the second version held that it was derived from the transmitter. The text (first). p. 116. The text (second). p. 70. 117This is omitted by the first version. The text (first). p. 116. The text (second). p. 70. 118 According to Ibn cAbd al-Ra)uf, the butchers should be prevented from blowing into the carcasses, because a purchaser who was unaware of this might be thinking that it has plenty of meat. Ibn cAbd al-Ra)uf, Risiilah. p. 94. Meanwhile, al-Saqat1 regards that such an act is unhealthy because a person who is suffering from halitosis might corrupted the meat. Al-Saqap, al-lfisbah. p. 32. I L 112 offence, and is he allowed to mix sheep's (cja)n) meat with that of goat (maciz) for the purpose of selling them ? Yal)ya replied by referring to the opinion of the learned people that it was a disapproved act (makrilh) to blow into carcasses. Thus, he should be vigorously prevented from such an act. If he repeated the offence, he should be banned from the market. Yal}ya maintained that the meat of sheep and goat should be separated and be sold separately according to their prices. Yal}.ya ibn cumar related to Al}.mad a l Q u ~ a r l that he heard from al-Harith ibn Miskrn from Ibn Wahb that he had heard Malik119 being 0 asked about a man who blown into carcasses as in the case of the butcher, and he replied that he disapproved of such an act and the person should be prevented from doing so120. 119This is the reading of the second version. However, the first version omitted Yal}ya's teacher al-I;;Iarith ibn Misldn from the isnad. The text (first). p. 117. The text (second). p. 71. 120The text (first). p. 117. The text (second). p. 71. l 113 Chapter Twenty One: A legal decision on a matter related to the butchers and the green-grocers (baqqiilin) who were exclusively permitted to sell their goods Yal}.ya ibn cumar was asked121 about the case of a butcher and a green-grocer who were exclusively permitted to sell their goods for a day or two, whilst the rest of the vendors were not allowed to sell them during that time. This in fact was an act of courtesy (rifq) for that particular vendor who had no money or122 when he wanted to get married123, so that he could gain more profit since other vendors had abstained from the sales, whether this was permissible when the price remained the same, or was it not because if they were to allow him, that particular vendor would be the only person to sell the meat, and the market would be without meat except for what he had with him and a further demand of meat or vegetable could be met. Yal}.ya replied that when the market had been exclusively made for such a person, it was not permissible if it caused inconveniences to the public in general. However, if the price remained the same and the public 121The first version held that he was asked by an unknown person (wa sztila), whereas the second version maintained that it was derived from the transmitter Atunad al-Quali (wa sdaltu Yal}ya). The text (first). p. 117. The text (second). p. 71. 122trhis is the reading of the second version, whereas the first version held that it was "and" (wa) instead of "or" (aw). The text (first). Ibid. The text (second). p. 72. 123The next sentence until the end of the question is omitted by the first version. Ibid. 114 did not feel any inconveniences, then it was up to the vendors to decide124 Chapter Twenty Two: A legal decision on the sale of tops (duwwiimiit) and dolls (uwar) Y a}Jya ibn cu mar was asked 125 about the sale of tops and dolls for children. He replied that Malik was asked about the sale of figures made from bone so that the children could play with them. Malik replied that there was no benefit in them 126. Chapter Twenty Three: Legal decisions on the sale of unripe dates (ru{ab) soaked in liquid (ghamura) Y a}Jya reported to an audience and one of them was AQ.mad al-Quari, that he heard al-ijarith ibn Miski:n reporting from Ibn Wahb, he said that he had heard Malik was speaking to a market supervisor (al}ib al-suq) requesting him to prohibit the sale of unripe dates soaked in liquid 2~ h e first version provides a different account of the opinion ofYaQ.ya. Instead of saying that the matter is to be decided by the vendors, it holds that YaQ.ya did not disapprove of such an act. The text (first). p. 117. The text (second). p. 72. 125The two texts have indicated that the question was asked by an unidentified person. Thus we find the first version reads masYalah and the second wa sztila. The text (first). p. , 117. The text (second). p. 83. 126The text (first). p. 117-8. The text (second). pp. 83-4. However, see pp. 237-9 below. 115 because it was harmful to the stomach and that the offender should be punished. The same applied to melons and all kind of fruit sold at the market that they should not be sold until they were ripe127. On another occasion, Y a.l}.ya reported to an audience and one of them was .AJpnad al-Quari that he heard al-!Jarith ibn Misk!n reporting from Ibn Wahb from Malik128 that it was allowed to soak unripe dates in vinegar so that they would become moistened, as long as they were not harmful when eaten. However, Ya.Jtya argued that he had heard another opinion ofMalik that it was harmful to eat unripe dates soaked in vinegar. According to Yal)ya, the case is different from the sale of clothes that had shrunk, because it was not harmful to the person who wore them129 127The first version omits this. The text (second). p. 73. 128This is the reading of the second version. The first version, however, had only referred to the statement of Ibn Wahb who narrated it from Malik. The text (first). p. 118. The text (second). p. 73. 129 Although, the first version had omitted this statement ofYaQ.ya, in fact, it had indicated another opinion of Yal;].ya that the sale of shrunken clothes must be different from the sale of unripe dates. This is also found in the second version. See next chapter. The text (first). p. 118. The text (second). pp. 73-4. 116 Chapter Twenty Four: Legal decisions on the sale of shrunken clothes According to Malik 130 in the case of the sale of shrunken clothes after they had been worn, he maintained that the sale is binding as long as the vendor has informed the purchaser of the defect. Yal}.ya disagreed on the matter and considered that the case must be different from the sale of unripe dates soaked in vinegar, because it is harmful when eaten131. In the case of shrunken clothes, the vendor should inform the purchaser of the defect because failing to do so would result in the contract becoming void and the offender could be banned from the market. Chapter Twenty Five: Action taken against missing vendors Alpnad al-Quari reported to Yal}.ya132 that a written petition was made to qacjt: Ibn 'falib regarding the butchers who were selling meat by mixing fleshy meat with that having less meat and the meat of sheep with that of goats. The petition also asked the qaqt: about the case of a baker who was selling bread which fell short of the standard measure. In these cases, the butchers and the bakers would run away each time the market 130This chapter is, in fact, a continuation from the previous discussion on the sale of unripe dates. The text (first). p. 118. The text (second). p. 74-5. 131The text (first). p. 118. The text (second). p. 74. 132rrhis is the reading found in the second version, whereas the first had indicated that it was a question (masYalah). The text (first). p. 118. The text (second). p. 75. 117 supervisor came to inspect them and leave behind them the meat and the bread. The petition then asked the qacjf what action should be taken against them and their goods. The qacjf replied that their shops will be locked and the market supervisor is allowed to sell the meat and bread if he feared that they would become spoiled and the money he raised would be given to the treasury. When asked by Al}mad al-Quari", Yal}ya replied that he agreed with the opinion of the qacj,r Ibn 'falib133. Chapter Twenty Six: Legal decisions on matters that are disapproved during a wedding banquet (walfmah) Y a ~ y a ibn CUmar was asked 134 about the case of a man who was invited to a party where musical instruments would be played and wines served, whether he was liable to accept such an invitation. Yal}.ya replied that a person was only required to accept an invitation to a wedding. However, he was not obliged to attend a wedding banquet where music was played, except for certain intruments like mizhar135 and kabar (drum)136. As for other instruments like bilq (trumpet), tunbilr (a 133The text (first). p. 118-9. The text (second). pp. 75-6. 134rrhe first version indicated that he was asked by an unknown person (wa szttla), whereas the second version held that the question was derived from the transmitter (wa sdaltu YaQ.ya). The text (first). p. 119. The text (second). p. 76. 135A kind of tambourine (duff). See p. 236 below. 136 Also known as tabl. See next paragraph. 118 stringed instrument like a mandolin) and cad (lute), they are not allowed and if played during a wedding banquet, a person was not compelled to accept such an invitation. According to Yal;ya, the reason for permitting the playing of musical instruments during the marriage banquet is to proclaim and make known the marriage (nikal}) in order to differentiate it from a fornication (si{al}). In relation to this, Ibn al-Qasim when asked by ~ b a g h ibn al-Faraj about the matter, replied that a person was allowed to attend a banquet (anf) where tambourine (duff) and drum (kabar) were played. The same was the opinion of Malik. Abagh then reported a tradition of the Prophet in which he said: "Proclaim the marriage and beat ghirbal137 Abagh held that mizhar was also allowed because it was a kind of tambourine (duff). This was mentioned to him by Ibn Wahb from al-Layth ibn Sacd138, who said that cumar ibn CAbd al-CAz1z had ordered musical instruments to be destroyed except for the tambourine which was played during the wedding ceremony. Ya}J.ya maintained that he agreed with this decision. 137 According to Yal}ya it was a circular tambourine (duffmudawwar). The text (first). p. 121. The text (second). p. 78. 138The two texts read al-Layth ibn Sa'ld which was incorrect. He should be referred to al-Layth ibn Sacd who was the teacher ofibn al-Qasim, Ibn Wahb and Ashhab in Egypt. He died in 175 A.H. Ibn Khallikhan, Wafayat al-Acyan. 1: 554. 119 According to Malik someone who was walking in a street where music was played should not use the street if he feared that he might be tempted to listen to it. According to Yal)ya, a man is not obliged to accept an invitation to a banquet where wine is served. Alpnad al-Quari reported that Ibn Wahb narrated a tradition of the Prophet in which he told to his Companions to make a wedding (nikal}) known in order to distinguish it from fornication (sifa}J) and such can be achieved by playing the tambourine and burning incense. Similarly, cumar ibn cAbd al-cAziz wrote a letter to Ayyiib ibn Sharal}.bil instructing him to order his people to play the tambourine during the wedding banquet in order to distinguish it from fornication. The same was the opinion of Rabfah ibn Abi cAbd al-Ralpnan 139 to make a marriage known by playing musical instruments was a practice agreed upon by the Muslims 140. 139He was one of the distinguished Successors (tabican) and had studied with Anas ibn Malik. He was the teacher to Malik ibn Anas. He died in 136 A.H. Al-Nawaw1, al-Tahdhib. 1: 189-190. 140The text (first). pp. 119-122. The text (second). pp. 76-83. 120 Chapter Twenty Seven: A legal decision on matter related to cooking pots (qudur) used in making a fermented fruit juice (nabidh) Alpnad al-Quari reported to Y attya 141 that a written petition was made to qtifjf Ibn Talib regarding whether the cooking pots, which were exclusively used for the making of nabfdh, should be destroyed or not. The qtiqf replied that if the pots cannot be used for other purposes, they should be destroyed and turned into copper, as in the case of a trumpet (baq). The market supervisor should prohibit the person who produced and purchased the drink. Yal}.ya, when asked142, maintained that he agreed with the qacJ,rs statements143. Chapter Twenty Eight: Legal decisions on the use of public baths Yal}.ya ibn cu mar was asked 144 on action to be taken against the bath owners when women who were not sick or had not given birth had entered their baths. He replied that in this matter, the bath-owner had to 141This is omitted by the first version. The text (first). p. 123. The text (second). p. 85. first version held that he was asked by an unknown person, whereas the second maintained that the question was derived from Al}mad The text (first). p. 123. The text (second). p. 86. 143The text (first). p. 123. The text (second). pp. 85-86. first version indicated that he was asked by an unknown person, whereas the second held that it was derived from the transmitter, Al].mad The text (first). p. 123. The text (second). p. 86. 121 be informed that such an act was not permissible. Thus, the public authorities could then consider appropriate penalties to be inflicted on the bath owners after a warning had been given to them. Similarly, they must ensure that men had covered themselves in the bath. Yal}.ya recorded that the same opinion was given by qticjt: Ibn 'falib and he emphasised that men who do not cover themselves in the baths should be punished and their testimony (shahtidah) should not be accepted until they had repented. The qacjt: also maintained that the bath attendants (mutaqabbil al-l}ammtim) should be informed about the matter and would then be liable for punishment if they ignored the rule145 Chapter Twenty Nine: Legal decision on crying aloud over the death of a relative YaQ.ya, when was asked by AQ.mad al-Quari146 regarding the crying aloud over the death of a relative, replied that loud lamentation over the death of a relative is a disapproved act. The disapproval applies whether it was accompanied by the mourners (nawwtil]) or not. However, it is allowed to weep quietly, because cumar ibn did not 145The text (first). pp. 123-4. The text (second). pp. 86-9. 146This is the reading of the second version. However, the first version omits this and indicated that Y al}.ya was asked by an unlrnown person. The text (first). p. 124. The text (second). p. 89. 122 disapprove of women who were weeping over the death of Khalid ibn al-Wa1Id147. Chapter Thirty: A legal decision on women visiting graves Yal}ya ibn cumar was asked148 about women who visited the graves of their relatives every Friday and lamented over their death. Ya.Jtya replied that there were no grounds for them to visit the graves and ask for God's mercy upon their deceased relatives149. Chapter Thirty One: A legal decision on women who were wearing shoes that make noises Alpnad al-Quari asked ~ y a ibn cumar150 about the shoemakers who were making shoes for women that produced noises which would attract men. Yal}.ya replied that the shoemakers must be prohibited from making such kind of shoes and if a warning had been given and he did not 147The text (first). pp. 124-5. The text (second). pp. 89-91. 148The second version held that he was asked by the transmitter, Alpnad al-QUari", whereas the first version indicated that it was derived from an unknown person. The text (first). p. 125. The text (second). p. 91. 149The text (first). p. 125. The text (second). pp. 91-2. 150This is the reading of the second version. However, the first omits this and holds that he was asked by an unknown person. The text (first). p. 126. The text (second). p. 93. 123 abstain from it than he was liable for a punishment. Similarly, the women must be prohibited from wearing them151. Chapter Thirty Two: A legal decision on the act of spilling water in front the house and the shops and the responsibility of cleaning the market place YalJ.ya reproted that Ibn al-Qasim was asked152 about a vendor who sprinkled water in front of his shop where a person or an animal might fall and hurt themselves. Ibn al-Qasim replied that if it was a small quantity of water, no legal action could be taken against him, but if it was a lot he thought that the vendor might be liable to pay for compensation 153. Yal}.ya was asked by someone whether the vendors were responsible for cleaning the mud caused by rains that has accumulated in the market area. YalJ.ya replied that he did not think so because that was not their 151The text (first). p. 125. The text (second). pp. 93-4. 152 According to the text of the second version, Ya]tya had related the statement of Ibn al-Qasim from Mu.IJ.ammad ibn Abi al-Raja> from Mu.IJ.ammad ibn Sa'l:d from i\4mad ibn Akhi Abi Zayd from Abu Zayd ibn Ab! al-Ghamar. However, this method ofisndd is not found in the text of the first version. The text (first). p. 126. The text (second). p. 94. 153The text (first). p. 126. The text (second). pp. 94-5. 124 responsibility. However, if the vendors were the persons responsible for accumulation of dirt in the market area, they should clean it up154. Chapter Thirty Three: Legal decisions on a door of a house in a narrow lane and on the liability of the person who dug a pit Yal].ya, when asked by Al].mad al-Quar1155, maintained that it was not permissible to make a door to a house which is situated in a narrow lane (zuqaq) and where a neighbour's house was on the opposite side. However, he is allowed to do to so if the lane is wide, as long as it does not ea use inconveniences to others 156. Y a.JJ.ya was asked by someone concerning the case of a person who had dug a pit to bury his stock of crop, but had caused injury to other people's cattle which had fallen inside it. Yal)ya replied that the person will not be held responsible for that. However, as for someone who dug a pit to capture a burglar, he is liable when it had injured other persons157. 154The text (first). p. 126-7. The text (second). p. 95. 155This is the reading found in the second version. However, the first version omits this. The text (first). p. 127. The text (second). p. 98. 156The text (first). p. 127. The text (second). p. 98. 157However, the second version omits this. Ibid. 125 Chapter Thirty Four: Legal decisions on matters related to the Jews and the Christians A written petition was made to Ya:Q.ya ibn CUmar158 by a market supervisor al-silq) of Qayrawan about the Jews and the Christians who resembled the Muslims in their dressing because they were not wearing riqac159 and zunnar160 in order to distinguish themselves. They were also seen to carry with them a wine-press. The petition then asked Yal)ya what action should be taken against them. replied to him in writing that he thought that they had be punished and be paraded in front of the Jews and the Christians so that it would deter others from committing such acts. The same was the opinion of qaqt: Ibn 'falib161 158 According to the second version, the matter was informed by Ya]tya to A)tmad al-QUali. However, the first version omits this. The text (first). p. 128. The text (second). p. 96. 159 A patched clothes. Lane. 1:1136-7. 160A band or rope worn around the waist. Lane. 1:1258. 161The text (first). p. 128. The text (second). pp. 96-7. 126 Chapter Thirty Five: Legal decisions on sale by a blind person and those suffering from serious illnesses Y al}.ya ibn cu mar was asked 162 by a market supervisor of Susah about the case of a blind man selling oil, vinegar and other goods, whether he should be prevented. Y a}Jya agreed and he maintained the purchaser had to return the goods that he bought from him. However, he is allowed to sell his goods to someone who knows him and that person must not sell them to others163. Yal}.ya was asked by someone about the case of a person suffering from leprosy (judhiim) found selling his clothes. Yal}.ya replied that the purchaser has a right to return the clothes if the dirt cannot be washed away and vice versa164. Chapter Thirty Six: A legal decision on a matter related to people who are suffering from leprosy SalJniin was asked by someone concerning the case of certain people who are suffering from leprosy in a town where it has only one source of water and one place for worship. Sal}niin replied that they should not be 162rr'he second version held that the inquiry was made in the presence of the transmitter and he had listened to their conversation. However, the first version omits this. The text (first). p. 129. The text (second). p. 98. 163The text (first). p. 129. The text. pp. 98-99. 16'1fowever, the second version omits this. Ibid. 127 forbidden from sitting in the mosque and from praying. However, they should not be allowed to take ablution or wash themselves in running water, but will be helped by another healthy person, where the water will be poured out to them from a container165 Chapter Thirty Seven: Legal decisions on measures of capacity and weights Y a:Q.ya reported to Alpnad al-Quari that al-ijari th ibn Misldn related to him from Ashhab ibn cAbd al-cAziz from Malik166 that the vendor should not give deficient measure, as this has been demonstrated by the Qur)an which reads: "Woe to those who give deficient measure"167 Regarding the sale by weight for goods like saffron and meat, the pointer (listin al-mfztin) had to be balanced168 According to Malik in order to give full measure the vendor had to fill the measure of capacity with the goods without shaking it and remove what was in excess by using his hand169. 165This discussion cannot be found in the text of the second version. The text (first). pp. 129-130. 166This is the reading of the second version, whereas the first version had only indicated that Malik was asked by an unidentified person. The text (first). p. 130. The text (second). p. 99-100. 167Al-Qu,Jan. 83:1. 168The text (first). p. 131. The text (second). pp. 99-103. See J.D. Latham. "Interpretation of a passage on scales (mawlizin) in an Andalusian ijisba manual". JSS 1978. p. 285. 169The text (first). pp. 131-2. The text (second). pp. 104-8. 128 Chapter Thirty Eight: A legal decision on fixing the price by force Ibn Wahb related from Malik when the latter was asked by a market supervisor (al}ib al-silq) that it is not allowed to fix the price for the vendors by using force. An example of this was a case of a vendor who wanted to sell his goods of a lesser quality with a reduced price, but he was ordered by the market supervisor either to raise the price or leave the market. This, according to Malik, is not acceptable170 Chapter Thirty Nine: Legal decisions on the vendors who are cheating and giving short weight Ibn I}:abib related from Ibn al-Majishun that it is the duty of the ruler to carry out an inspection of weights and measures of capacity from time to time and advise his subjects to give full measure. The same was the opinion of Malik171. As for the punishment of the offenders who had committed the same offence several times, Ibn al-Majishi.in holds that they are liable to be punished by beating, detention and being banned from the market. However, he is against confiscating the offender's goods and donating them to the poor, except when the value of the goods is nominal, 110The text (first). p. 132. The text (second). pp. 103-4. 171However, the first version omits this section. The text (first). p. 133. The text (second). p. 108. 129 such as a small quantity of milk and bread. According to Ibn ijab1b, the adulterated goods will not be returned to the owner, but be given to a trustworthy person to be sold in the market on his behalf. As for bread, it will be broken up and returned to its owner172 Chapter Forty: A legal decision on fixing the price of food during an inflation Ya}Jya ibn cu mar reported to Alpnad al-Quati that he had narrated from al-Walrd ibn Mucawiyah from al-Dimyatr173 that Ibn al-Qasim was asked about the statement ofMalik who had instructed the vendors to take out their goods and sell them in the market when there was a public demand for them and the price had increased. Ibn al-Qasim replied that the vendors should be allowed to sell their goods without fixing the price on them. Instead, they should be able to sell them according to their wishes because these are their property. He argued that the matter had been mentioned by Malik who said that the vendors should be ordered to sell out their stock of goods for that year, except for the food for his own use. Ya.l}.ya 172The text (first). pp. 133-4. The text (second). pp. 108-111. 173This method of isnad is omitted by the first version. The text (first). p. 134. The text (second). p. 111. 130 defined the stock mentioned by Malik as the vendor's annual stock of goods174. Chapter Forty One: A legal decision on hoarding Alpnad al-Quarf claimed he heard Yal].ya saying that the vendors who were hoarding food and causing the market to be destroyed should be penalised by confiscating their goods and selling them in the market, so that the profit could be donated. A warning will then be given and if they repeat the offence, they will be punished by beating and being paraded in the market175. With regard to the nomadic people who came to sell their goods and were sent to stay in public accommodation, the market supervisor must inform them to sell the goods in the market. According to YaQya, it is not permissible for anyone to replenish his annual stock of grain when the price is high. Y al}.ya was asked by the people of al-Qar that their market was too crowded so that the vendors did not have enough space to sell their goods in the market176. Y al}.ya replied that in a normal situation when the price is not increased a person is allowed to sell his goods at his house as long as it does not destroy the market. However, if the price had 174The text (first). pp. 134-5. The text (second). pp. 111-2. 175This section is omitted by the first version. The text (second). p. 113. 116The text (first). p. 136. The text (second). p. 115-6. 131 increased no one should be permited to sell their goods except in the market177. Chapter Forty Two: Legal decisions on the sale to a stranger Yal;}.ya reported that Sal}nun was asked about a stranger who entered the market and bought goods such as oil or wheat but was not informed of their prices, whether the sale was considered as an uncertain transaction (gharar). Sal;}.niin replied that the sale of such kind of goods was known to the public. Thus, it is allowed. However, according to Yal;}.ya it is unlawful to the vendor to manipulate a stranger who do not know the price of goods178. Chapter Forty Three: A legal decision on the sale of food in jars (azyiir) and containers Sal;}.niin was asked about the sale of figs and salted fish (fr) in a jar where the purchaser after the contract of sale had been concluded claimed that the lower part of the jar contained a lesser quality of goods, compared to the upper part which was visible to him during the sale. The same was 117The text (first). pp. 136-7. The text (second). pp. 116-7. 118The text (first). p. 137. The text (second). p. 118. Similar statement was made by Ibn Taymiyyah, al-lfisbah. p. 22. 132 the case for the sale of grapes, pomegranates and melons in containers and baskets. Sa}Jntin replied that in this case the purchaser is regarded as the plaintiff and he is liable to provide proof. However, the vendor has a right to reject this accusation by taking an oath that the quality of goods he sold to the purchaser in the lower part of the container was as good as that of the upper one179. Chapter Forty Four: A legal decision on the sale of clothes infested with lice Yal}.ya maintained that the sale of clothes infested with lice is binding if the lice can be detected and removed. However, he held that the purchaser has a right to return the clothes if the lice are too many and cannot be removed because the sale is considered a kind of cheating180 Chapter Forty Five: A legal decision on the sale of ashes used to whiten spun thread Yal].ya was asked about the case of a woman who bought ashes from a vendor to whiten a spun thread and the vendor informed her that it was of good quality. However, when the woman used it, the thread had not 179The whole discussion is omitted by the first version. The text (second). pp. 120-4. 180The whole discussion is omitted bt the second version. The text (first). p. 137. 133 become whitened. He replied that a test should be carried out to determine the quality of the remaining part of the ashes. If the result shows that the thread had become whitened, no legal action can be taken against the vendor. In contrast, the woman will receive her repayment if the test was unsuccessful. However, if all the ashes have been used by the woman, the vendor may take an oath that the ashes he sold were of good quality. Instead, the woman may give evidence against what he had claimed181. Chapter Forty Six: A legal decision on a matter related to money-changing According to Malik182 if someone has given a dfnar to a money-changer to be changed for dirhams, and the dinar is then stolen, the money-changer is liable for that. The same was the opinion given by Ibn al-Qasim and Abagh that the money-changer is responsible for the loss because money-changing is considered as a contract of sale and the money had been handed over to the money-changer. The same applies if the money-changer damages the money given to him, and he is liable for the damage, except when the damage was only slight. According to Yal;ya, someone who intentionally breaks the coin is liable to repair it. However, if a person 181The text (first). p. 137. The text (second). pp. 124-5. 182Both texts indicate that Y aQ.ya had referred to the statement of Malik through CUbayd ibn Mucawiyah who narrated it from Abagh ibn al-Faraj from Ibn al-Qasim. The text (first). p. 138. The text (second). p. 126. 134 wanted to test the genuineness of a dmar by biting it and then damaged the coin, he is not liable for that183. Chapter Forty Seven: Matters related to the sale of figs, beans (fii,l) and the discussion of wages for the workers According to Yal;ya, if the purchaser who bought beans demanded that the sale include stalks (qaf}ab) but the vendor disagreed, the stalks must be given to the purchaser except when the practice of the place is different. In relation to the selling of figs184, the purchaser who bought the fruit claimed that the sale also included the leaves. Yal;ya maintained that this claim was not acceptable. As for someone who was paid to remove the seeds of cotton, the seeds belong to the owner of the cotton and the worker will only receive his wage. The same rule applies to the grinder who grinds the wheat, that the bran (nukhalah) belongs to the owner of the wheat. Similarly, the remnant used by the tailor from making trousers and shirts, belong to the shirt's owner. 183The text. p. 138. The text (second). pp. 125-8. 184rrhe first version held for the first time that inquiry on this matter was was made by Ibn Shibl to Yal}ya. However, the second version maintained that it was derived from Alpnad al-Q ~ a r i . The text (first). p. 138-9. The text (second). p. 128. 135 Yal;}.ya then maintained that the same rule applied to other works carried out by workers185. Chapter Forty Eight: Legal decision on the slaughtering of sheep Ya}Jya held that it is unlawful to eat sheep which had been slaughtered without proper conduct when the }ilzah (thyroid cartilage) remained as part of the animal's body since it should be separated from it186. Ibn Shibl asked Ya}J.ya187 what would happen to the slaughterer? He replied that the slaughterer is liable to compensate the owner of the animal with an equivalent sheep. IJamdis a l Q a ~ ~ a n reported that Salplful did not forbid the sale of the hide of an animal slaughtered during the festival of cld al-Aql:Ja. ij:amdis also held that he was in the company of Salplun since the year 223 A.H. until the latter died188 185The text (first). pp. 138-140. The text (second). pp. 128-131. 186The jurists are unanimous that the correct method of slaughtering is by cutting the animal's gullet (l}ulqum) for breathing and for taking food. They also agree that thejazah had to be separated from the animal's body. Wahbah. 3: 656. 187This was the second occasion that the text of the first version had indicated that the question was asked by the transmitter, Ibn Shibl. However, the second version omits this. The text (first). p. 140. 188Based on this information, it can be calculated that he was in the company of Sa}J.niin for about 17 years (from 223 to 240 A.H.). This account seems to be more acceptable than what had been suggested by Ibn Far}J:un and MakhlUf that he was born in 230 A.H. who in fact. had considered Hamd1s as an associate of Sahnun. However, the whole discussion in this chapter is omitted by the second version. The otext (first). p. 141. Ibn Farl}:un, al-Dibiij. p. 31. Makhluf, 'fabaqiit. p. 71. The above statements were made without making reference to Yal}ya, and thus it seems that they are added to the text by the transmitter. 136 Chapter Forty Nine: Statements on basic house equipment and the wedding outfit (jihiiz)189 for the bride According to Ibn Ijabib thejihtiz should be prepared by the father of the bride. For that matter, if the father had made a confession that the jihaz was made on the basis of a loan ccariyah) to his daughter, which then was stolen or went missing and there were witnesses that the jihaz had been in her house, the matter can be classified in two situations. If the daughter was a virgin (bikr) before the marriage, she will not be liable for the loss, unless there are evidences to suggest that it was because of her negligence. As for a thayyib, if she knew of her father's confession and was present on that occasion, she is liable for the loss, and vice versa. Ibn al-Majishiln held that the husband has no right to interfere in this matter if the jihaz which was provided by the bride's family had been made it on the basis of other than a gift (ghayr catiyyah)190 189 Jihaz is a basic house's equipment and it also includes the wedding outfit for a bride. The jurists differed as to whom should be responsible to provide this jihaz. According to the Malikis, it was the responsibilty of the family of the bride, since the bridegroom had to pay the mahr for the bride. On contrary, the I;Ianafis held that the matter should be provided by the bridegroom. Wahbah. 7: 311. See Lane. 1: 476. Hava. p. 102. Elias. p. 127. 190The whole discussion is omitted by the second version. The text (first). pp. 141-2. The above statements were made without referring to YalJ.ya, and thus are believed to be added to the text by the transmitter. i I L 137 Chapter Fifty: Statements on qadhf Ibn al-Qasim maintained that a person accused of the crime of slanderous accusation (qadhf) cannot be punished either by flogging or by imprisonment when the evidence against him was offered by only one witness. Instead, he can be detained for a short period until he confesses so that he can be punished. Thus, Ibn al-Qasim held that he should be released if he had been detained for a long period of time and he did not make any confession of the slanderous accusation brought against him191 Ibn al-Shibl then said192 that the person accused can be punished if the period of detention had been prolonged and he did not confess. However, he was not sure about the appropriate method of punishment to be inflicted on him. According to Abagh, the person accused can be punished if he is a wicked man and is known for making abusive remarks on others. Therefore, if the person accused is not of that category, he will only be sent to prison until he has made a confession 193. 191The whole discussion is omitted by the second version. The text (first). p. 142. 9~ h e text reads qultu. Thus, this is the third occasion of which the text of the first version had indicated that the statement was made by the transmitter, Ibn al-Shibl. The text (first). p. 142. 193The whole discussion is omitted by the second version. The text (first). pp. 142-3. The above statements do not refer to Yal}ya and are believed to be added to the text by the transmitter. 138 Chapter Fifty One: A statement on things that can be taken by market supervisor ~ a J { i b al-suq) from the vendors. The jurists differed on this matter; some maintained that the market supervisor is prohibited (/jaram) to receive any goods from the vendors, others said it is disapproved (makrah) whilst the rest allowed it. However, the most acceptable opinion was that it is prohibited for the market supervisor who was not in need to receive goods from the vendors. Therefore, he is allowed to take them if he is in great need, on condition that he will not be dependant on them. Nevertheless, it is better for him not Chapter Fifty Two: Statements on matters concerning immoral behaviour A woman known as ij:aklmah who had committed wrongful act with a man was sent to Sal}.niin, so he punished her by beating and detention. According to another report, her house was marked with a clay at the door. She was beaten with a whip (sawO while sitting on a large basket. With 19"The whole discussion is omitted by the first version. The text (second). pp. 131-2. It seems that this statement was added to the text by the transmitter. 139 regard to young offenders, their feet were chained and they were detained at their parent's house and not in the prison195 Chapter Fifty Three: Legal decisions on the sale of meat together with hearts and stomach Al}.mad al-Quari reported196 that qa(jr Ibn al-'falib prohibited the sale of meat together with heart, stomach or any other things. Yal}.ya explained that the sale was not allowed because a dirham can buy two ratls weight of meat or six ratls of stomach197. The problem of price-fixing As previously mentioned, the text deals with many issues. However, one of the most important matters that can be found in the text concerns price-fixing (tascfr). In fact, arguments about price-fixing can be found much earlier than this198 According to the Malikrs and the ij:anbalis, price-fixing is permissible and on certain occasions it becomes a compulsory act 195The whole discussion is omitted by the first version. The text (second). pp. 133-5. Reference to Yal}ya is not found, and thus these statements probably are added to the text by the transmitter. 196This is the reading of the second version, whereas the first version omits it. The text (first). p. 143. The text (second). p. 119. 191The text (first). p. 143. The text (second). pp. 119-120. 198See the arguments between Malik and al-ShafiCj. Ibn Qayyim, al-furuq. pp. 261-7. 140 upon the ruler. On the other hand, the Shaficis and the ijanafis are against price-fixing199 The dispute on this matter was, in fact, based on their understanding of the tradition of the Prophet, narrated by Anas ibn Malik, that the price had increased in the time of the Prophet, so people came to see him and said: "0 Messenger of God, fix the price for us". The Prophet replied: "0 people, when the price is high or low it is by the Will of God and I hope to meet Him when no one will claim injustice against me either for property or blood"200 According to the Shaficys and the ijanafis the Prophet had refused to fix the price because it would have been unjust to the vendors. However, the Malikrs and the ijanbalis argue that the tradition only applies to a specific situation. They maintain that the tradition did not mention any injustice committed by the vendors which had inflated the price. Instead, they held that the price increased due to natural causes. Thus, in this situation, the Prophet refused to fix the price for them because it would be unjust to the vendors201 On that basis, in a situation where the price had increased because of an injustice by the vendors, the Malikrs and the ijanbalis held that it is permissible to fix the price for them. Nonetheless, such an intervention by the public authorities must be made after a careful examination into each case. Thus, Ibn Ijab1b maintains 199See Wahbah. 3:588-590. See also cAbd al-Kanm al-Khattab, alStyasah alMitltyyah fi al-Islam. pp. 209-210. 200Ibid. See Ibn al-Atmr, Nihayah. vol. 2, p. 368. 201 According to Ibn Taymiyyah, the price rise in the time of the Prophet was due to a shortage of supply and an increase in the demand for the goods. Ibn Taymiyyah, al-lfisbah. p. 27. I loot I I I i I ( i 141 that price-fixing is, in fact, a settlement to an equivalent price (thaman mithl). Therefore, when the price has increased and the public has protested against it, a settlement can be achieved through a negotiation initiated by the public authorities. The meeting would attempt to reach a settlement at an agreed price for the parties involved which is known as an equivalent price202 Therefore, it can be concluded that price-fixing is not permissible in a normal situation. It is only applicable when it involves with injustice committed by the vendors. Thus, intervention by the public authorities in this matter must be made on the grounds of public interest203 However, the question still remains unanswered here because the work of Ya}J.ya ibn cumar does not deal with the problem of vendors who have increased the price, but with those who reduce it204 According to Ibn Qayyim, in this matter Malik and al-Shafic1 have differed. However, both are referring to the tradition of cumar ibn al-Khattab who had ordered Hatib ibn Abi Baltacah to either raise his price or leave the market. 0 Based on this practice ofcUmar, Malik maintained that when a vendor has reduced his price and where such an action would destroy the market, will be instructed to raise his price or leave the market205 This is also 202Ibn cAbd al-Ra>ur, Risalah. pp. 88-9. Ibn Qayyim, al'.furuq. p. 265. 203See The text (second). p. 45. See also Ibn Taymiyyah, allfisbah. p. 24. 204See The text (first). pp. 106-8. The text (second). pp. 40-7. See pp. 87-9 above. 205The text (second). p. 44. Ibn Qayyim, al'.furuq. p. 261. L 142 explained by Ya];}.ya as meaning that variance in prices should be prevented in order to avoid the other vendors who are selling at higher prices feeling so annoyed that they might withold their goods which would destroy the market206. Meanwhile, al-Shaficf refers to an extended version of the tradition ofcUmar. According to this tradition, cumar met ijatib selling raisins in the market and asked him the price he was offering. When cumar was informed about the price, he told I}:atib either to increase the price or to bring his raisins to his house because a caravan was coming from al-Ta?ifwith raisins and they might be misled by his price. When they departed and cumar had examined his conscience, so he went to ijatib's house and said to him: "Indeed, what I ordered you was not of my (correct) opinion or my (correct) legal judgement, so, sell your raisins as you like and do what ever you desire"207 On this basis, al-Shaficf maintained that each individual should be able to conduct his affairs as he wished. Even though a person may be constrained by law to comply with certain rules, this was not such a case in this ma t e ~ 8 206The text (second). p. 46. See pp. 88-9 above. 207 Al-Muzani, Mukhlafiar. in al-Shafici's al-Umm. vol. 8, p. 191. Ibn Qayyim, al-'furuq. p. 263. 208Ibid. 143 In the case ofYaQ.ya ibn cumar, he is against price-fixing in normal situations. He even disagreed with fixing the price for the vendors who were hoarding goods at a time of scarcity, but instead favoured compelling them to sell the goods in the market. However, Ya}J.ya held that it is wrong to leave one particular vendor selling at a cheaper price than the market209 Thus, he should be ordered to increase the price by accepting the market price or to leave the market. Y al;}.ya argues that such an action is justified for the purpose of maintaining stability in the market210 In this connection, price-fixing should be discussed together with the issues of hoarding (il}tikar) and "monopoly", i.e. where only one particular vendor who was in need of money had been allowed to sell in the market. The fact that YalJ.ya ibn cumar had neglected the issue of price-fixing when the price is increased could be for the reason that his work was a series of questions and answers. Presumably, YaQ.ya ibn cumar would agree that the same action should be taken against the vendors who had increased the price211. 209Presumably, this situation is similar to what has been visualised by Ibn Qayyim. According to him when the public have established a common price (s-cr ghalib) and some of the vendors want to sell at a higher or cheaper price, Malik holds this to be not acceptable and it should be prevented. Ibn Qayyim, al-'furuq. p. 261. 210See pp. 113, 129 above. 211 However, see pp. 130-1. I L 144 CHAPTER THREE The elements of l]isbah 3.0. Introduction Perhaps al-Ghazal!'s treatment of }Jisbah in his famous Kitab ll}yaJ cuzam al-Drn 1, is the most elaborate work on this matter. According to him, there are four basic elements of l}isbah; the mul}tasib (person carrying out the duty of I:J,isbah), the mul}tasab calaihi (person being supervised), the mul}tasab {rhi (subject of supervision) and l}isbah or il}tisab which consists of the stages of l}isbah's penalties and the manners of the mul}tasib2 Much earlier than him, Y al].ya ibn cu mar had already discussed similar main elements which have been dealt with in the previous chapter3 However, his discussions on this matter are scattered throughout the text. The same was in fact, the case with latter jurists like al-Mawarch-4 and Ibn al-1 Al-Ghazali, Il]ya1 vol. 2, pp. 391-455. 2 Al-Ghazali, ll]ya1 p. 397. 3See pp. 70-5 above. 4AI-Mawardi, AIJ,kiim. pp. 240-259. See also H.F. Amedroz, "The Ifisba Jurisdiction in the Aljkam Sultaniyya of al-Mawardi'', JRAS. 1916, pp. 77-101, 287-314. 145 Farra)5, who did discuss the issues, but without providing proper arrangements and giving sufficient information such as can be found in the work of al-GhazalL Thus, we find Ibn al-Ukhuwwah has cited most of the discussion found in this section of the work of al-Ghazali on this matter, even though on many other occasions he had referred to the work of al-Mawardi. On that basis, it seems proper for this study to give much emphasis to the work of al-Ghazal1 in order to provide a critical examination on the issue concerned which would be focusing on the following matters: i) The person carrying out the duty of l}isbah ii) The person to be supervised iii) The subject of supervision iv) The stages of penalties of l}isbah and the manners of the mu}],tasib 3.1. The person carrying out the duty of bisbah The first element of l}isbah is the person carrying out the duty of l}isbah. Regarding this, the work ofYalJ.ya ibn CUmar has indicated that the duties of supervising the market and other related matters which was later known as l}isbah are the responsibility of the Governor, the qaqr and the 5Ibn al-Farra>, Al}kam. pp. 268-292. 146 market supervisor. This was so because during the time of the author, the institution of }Jisbah was at a preliminary stage6 However, later as was indicated by the work of al-Nair li al-ijaqq (d. 304 A.H.), the duties had been designated to an official called mu}],tasib 7 3.1.1. Qualification of the mubtasib Regarding this matter, little has been discussed by Ya.Jtya ibn cumar. However, he has indicated that the Governor had to appoint the most trusted person in his town to supervise the market8. On another occasion, Yal)ya ibn CUmar maintained that the Governor should entrust a trustworthy person to observe the coinage and protect it from being counterfeited9 The matter then has been elaborated by later jurists. According to al-Nair li al-ijaqq, the mul}tasib should be knowledgeable in law10. This is because, al-Nair considered }Jisbah as a complete manifestation to the acts of qacJ,a!11 However, later, it seems the mul:J,tasib's legal capability was less demanded. Thus, al-Mawardi states 6See pp. 76-7 above. 7 Al-Nair li al-I}:aqq, Kitab al-ll]tistib. edited by R.B. Serjeant, "A Zaydi manual of lfisbah of the 3rd Century (H)". RSO. pp. 1-34. SyaQ.ya ibn 'Umar, The text (first). p. 103. The text (second). p. 31. Seep. 79 above. 9yaQ.ya ibn 'Umar, The text (first). p. 104. The text (second). p. 35. Seep. 81 above. 10 Al-Nair li al-:ij:aqq, Kittib al-Il]tistib. p. 11. 11Ibid. 147 that in order to qualify as a mul],tasib, one must be free (/}urr), cadil12, capable of making an independent judgement, vigorous (aramah), strenuous (khushanah) in religious matters and knowing what are regarded as obvious wrongful acts13 With regard to the last condition, al-Mawardi mentions that the Shaficy jurists are in disagrement on whether a mu/;,tasib has the right to enforce his view in cases where legal opinion is not unanimous. Abu Sa'1:d al-ltakhri14 for one is in favour of allowing the mul}tasib to enforce his own view (ra)y) and legal opinion (ijtihtid). Therefore, in this situation the mul}tasib must be knowledgeable in law and competent to decide on matters where the jurists are not unanimous. In other words, he must be a legist (min ahl al-ijtihad), whereas others who are against this, argue that the mul}tasib must not impose his own opinion or that of his school of law on others, for all qualified men are at liberty to come to their own decisions concerning these cases. On this basis, the 12 A person who does not neglect the religious obligations and abstains from unlawful activities and has not committed any of the grave sins (kabahr) or continuously committed venial sins (fiaghahr). See Wahbah 8:232. Therefore, it excludes the sinner (fti,siq). However, al-Ghazali is in favour of allowing sinners to carry out the duty of ljisbah, with limitation that they may not admonish others for he argues that their action is useless. See the following discussion on al-Ghazali. Al-Ghazali, l l ] y ~ p. 401. See pp. 148, 154-7 below. 13rrhe same is the opinion of Ibn al-Farra>, except for the first condition where according to him the muljtasib must have sufficient experience (khabfr) instead of being free (ljurr ). However, Ibn al-Farra> does not specifically mention that a slave is qualified to be a mufJ.tasib. Ibn al-Farra>, Al]kam. p. 269. Al-Mawardl, Al]kam. p. 241. 14A Shafi,jurist who was a muljtasib of Baghdad under the Caliph Muqtadir (d. 320/932). Ibn al-Nadim, Fihrist. p. 267. 148 mul}tasib's legal ability is therefore, insignificant. All he needs to know are wrongful acts that the jurists have agreed upon15. The same is the opinion of Ibn al-Farra). However, he does not mention the two opinions of the Shafi'1s, but he holds that the mu}Jtasib may be required to be a legist so that he could decide on doubtful cases, and where he is not, he is only required to be acquainted with obvious wrongful acts agreed upon by the jurists16 A similar view is given by Ibn al-Ukhuwwah. However, he discusses the case as to whether the mul;tasib is capable of making personal reasoning (ijtihad) on matters involving revealed law or only in those involving the customary law (cur{). According to Ibn al-Ukhuwwah, there are two opinions. The first is Abu Sacfd al-ltakhri, who holds that the mul}tasib is capable of ijtihad in both cases and he may impose his legal opinion on others. On the other hand, the second opinion allows the mul}tasib to decide on cases involving the customary law only17. Meanwhile, according to al-Ghazalf in order to qualify as a mul}tasib, the person must satisfy three conditions that he must be a mukalla{18, a 15 Al-Mawardr, Al]kiim. p. 241. 16Ibn al-Farra), Al]kiim. p. 269. 17Ibn al-Ukhuwwah, Maciilim. pp. 8-9. 18Mukallaf: a person who is obligated to observe the precepts of the religion, from which children and insane persons are excluded. Wahbah 7:364. 149 Muslim and have the capability of carrying out the duty of l}isbah19 This, therefore, includes sinners (fasiq), slaves (raqfq) and women20. As for the first condition, i.e. being a mukallaf, al-Ghazal! holds that it does not mean that a person who is not one, is not allowed to carry out the duty of l}isbah, it merely means that he does not qualify to be a mul}tasib. Therefore, a child who is rational and about to reach the age of puberty- though he is under no legal compulsion -may carry out the duty of l}isbah, that is, he is to be allowed to spill wine or break forbidden musical instruments. However, his action is not considered as an authority (wilayah) but as a voluntary act (qurbah) as in the case of him performing the rituals, such as praying21 The same is the opinion of Ibn al-Ukhuwwah22 It should be noted here that children below the age of puberty are under no compulsion to practice the rituals but they are encouraged to do so where their good deeds are considered as a voluntary act (qurbah) and will be rewarded
It should be noted here that al-Ghazal!'s treatment on this matter, was in fact dealing with two different kinds of person carrying out the duty 19Further detail on this matter will be given in a later discussion. See pp. 159-162 below. 20 AI-Ghazalr, 11Jyfi. p. 398. 21 Al-Ghazali, ll}yct. p. 398. 22Ibn al-Ukhuwwah, Maciilim. p. 8. 23Wahbah. 4:754. 150 of l}isbah: the official mul}tasib and the ordinary Muslim performing the duty. This is so because earlier than this, al-Ghazal! has indicated that the duty of enjoining the good and forbidding the evil- which he regards as a comprehensive expression to the term l}isbah24 -is a collective duty (farcj, ki{ayah) on every Muslim25 It would appear that insofar as there is a mu}Jtasib, he would have the individual duty (farq cayn) to carry out the obligation. Thus, al-Mawardi and Ibn al-Farra) in discussing the duty of the mul}tasib to carry this out make it farcj, cayn for him and farq kifayah for other Muslims26. It is probable that al-Ghazan would have agreed with them in making this obligation farcj, cayn for the mul}tasib. However, on many occasions, al-Ghazall seems to be giving a similar identity to these two kinds of person. In fact, the matter has been dealt with by al-Mawardr and Ibn al-Farra) and was then referred to by Ibn al-Ukhuwwah. According to them there are nine differences between the official and the ordinary Muslim carrying out the
a) It is the personal duty (farq cayn) of the mul}tasib, whereas others are only collectively bound (far4 kifayah).
is therefore can be concluded that whenever al-Ghazali mentions the word 7isbah, he is referring to the duty of enjoining the good and forbidding evil. Al-Ghazali, Iqya . p. 398. 26 Al-Ghazalr, lqyi:J. p. 391. 26AI-Mawardr, Al]kiim p. 240. Ibn al-Farra), Al]kiim. p. 268. 27AI-Mawardr, Al]kam. pp. 240-1. Ibn al-Farra), Al]kam. pp. 268-9. Ibn al-Ukhuwwah, Maciilim. pp. 11-2. 151 b) The mu/;},tasib's action is obligatory by virtue of his appointment and therefore, must not be neglected, whilst it is a recommended act for a person acting voluntarily, which might be carried out by others. c) The mu}Jtasib is subject to complaints about the wrongful acts that he is liable to act upon, whereas a person acting voluntarily is not. [Al-Mawardl and Ibn al-Farra) then explain that the mul],tasib is capable of hearing complaints involving the right of men in three cases: in short weights and measures, fraud in sale transactions and non-payment of debt]28 d) The mul]lasib is liable to respond to such complaints, but others are not. [If the case is within his jurisdiction, i.e. the three cases mentioned in the previous note, the mul;tasib is able to compel the defendant to discharge his liablity once admitted. It could be assumed that if the matter is not within his jurisdiction, the mu/;Jlasib would bring the case to the attention of higher authority, such as the qaqf or the official concerned. Thus, we find that in the matters were concerning funds needed to repair public buildings and a city wall, the mu}Jtasib may refer the case to the treasury. 28 Al-Mawardr, Al]kam. p. 241. Ibn al-Farra), Al]kam. pp. 269-270. 152 Similarly, if the case involves a legal decision, he has to refer it to the qacjf] 29 e) The mui:J,tasib must carry out an investigation of an obvious wrongful act, so that he will be able to denounce it. Similarly, he has to examine the reason for someone neglecting the performance of good deeds, so that he will be able to enjoin him. As for the person acting voluntarily, he may not carry out any investigations or examinations on these matters. f) The mui:J,tasib may appoint assistants to assist him in carrying out the duty of l}isbah, whereas others may not do so. g) The mul}tasib may resort to discretionary punishment (taczfr), in cases involving obvious wrongful acts, without extending to those of the revealed punishments (/}udild). As for someone acting voluntarily, he may neither impose the discretionary punishment nor the revealed punishment. [However, al-Ghazall goes further declaring that the public may convey the truth and give proper advice, as in the case of a child exercising I:J,isbah towards his father and the 29 Al-MawardL loc.cit. Ibn al-Farra>. loc.cit. 153 public towards the rulers. The same is the opinion of his teacher al-Juwayru]30. h) The mul}tasib is entitled to a salary from the treasury (bayt al-miil), whereas a voluntary person is not. i) Finally, in matters related to the customary practices (cur/), the mul}tasib may impose his own personal judgement (ijtihad), such as the removal of extension (ajnil;ah) from one's shop. [In a similar way, Yal;}.ya ibn CUmar states that in the case of a house situated in a narrow lane, the owner should not be allowed to create a door or an entrance to his home which would cause inconvenience to the passers-by]31. However, the mul}tasib is not capable of making legal decision involving the revealed law. As for the person acting voluntarily, he cannot impose his opinion in either case32. Above are the differences between the mul}tasib who is regarded as an authority on }Jisbah (wali al-}Jisbah) and a person acting voluntarily, even though both are permitted to carry out the duty. However, al-Ghazalr goes further to explain that such actions by the public are considered as 30 Al-Juwayni, Ghiyiithi. pp. 237-9. Al-Ghazali, ll].yct. p. 398. See pp. 158-9 below. 31YaQ.ya ibn CUmar, The text (first). p. 127. The text (second). p. 98. 32AI-Maward1, Al].kiim. p. 242. However, see pp. 147-8 above. I' I 154 qurbah (voluntary act), which includes the case of a child carrying out the duty of l}isbah towards his father33 On another occasion, al-Mawardi referred to the mul}tasib as ntiiir caza al-l;isbah. In fact, as mentioned earlier, a similar term was used by Y aij.ya ibn cu mar in explaining the person responsible to supervise the market and other related matters34 According to him, the person responsible was known as ntiiir caza al-silqss. 184.108.40.206. A sinner (fiisiq) carrying out the duty of hisbah It seems that al-Ghazal!'s view of allowing a sinner (fasiq) to carry out the duty of l}isbah does not agree with the other jurists. Al-Mawardi and al-Farra) clearly state that the mul}tasib must be trustworthy (cadil)36 The authors of l}isbah manuals such as al-Saqap who in agreeing with the jurists emphasises that the mul}tasib must be well known for his trustworthiness (maczam al-cadtilah). Al-Saqat1 maintained that the official must be an expert in religion (jaqfh {r al-drn), commandant of justice, having an honourable character, ambitious, well-known for his 33 Al-Ghazali, lqyr;. p. 398. See also Ibn al-Ukhuwwah, Maciilim. p. 8. 34See p. 71 above. 35 Al-Mawardi, Al]kam. p. 242. Ibn al-Farra\ Al]kam. p. 270. YaQ.ya ibn CUmar, The text (first). pp. 103, 108. The text (second). pp. 31-2, 33-4, 37. See p. 71 above. 36 AI-Mawardi,.Al]kam. p. 241. Al-Farra.>,.Al]kam. p. 269. See also al-Ghazali,IIJ.yaJ. p. 399. See p. 146 above. L 155 trustworthiness (ma0lilm al-0adalah), great patience, mild-tempered, cautiousness and understanding37 Although Ibn al-Ukhuwwah states that a sinner may qualify, he has also clearly mentioned that the mul}tasib must be trustworthy (0tidil). In matters relating to the qualification of the mul}tasib, Ibn al-Ukhuwwah seems to follow the pattern ofal-Ghazall. This seems to be the case, particularly the wording and the arguments put forward, especially in the case of permitting children to carry out the duty of l;isbah, but obvious disagreements can also be found for according to Ibn al-Ukhuwwah the official must be trustworthy (cadit) and a free man38 However, those who disapprove of a sinner exercising the duty of l;isbah do not explain the reason for their disapproval. On the other hand al-Ghazalr explains the reason behind his view and suggests the reasons of those who disagree with him39 According to al-Ghazalr, those who (without mentioning their names) disapprove of allowing a sinner to carry out the duty of l:J,isbah, perhaps based their arguments on Quranic injunctions and Prophetic traditions in condemning the person who asks others to do good deeds but forgets himselt4. They might also have based their view on an analogy (qiyas) 37 AI-Saqap, al-lfisbah. p. 5. 38 Al-Ghazali, ll]yct. pp. 398-9. Ibn al-Ukhuwwah, Maciilim. pp. 7-8. 39 Al-Ghazalr, Il]yft. p. 399. 40Al-Qu,Jan. 2:44, 40:35 and 61:3. L 156 based on doubting that someone is not capable of doing justice himself while being able to do so with regard to others41. Although al-Shayzari does not mention that he disapproves of accepting a sinner as a mu}Jtasib, he uses the argwnents mentioned by al-Ghazal1 where the QurYan condemns those who ask others to do the right things but forget themselves. Al-Shayzari maintains that the mu}Jtasib must practice according to his knowledge and that his action must not contradict what he preaches. He then refers to the above Quranic injunctions42. Al-Ghazali claims that his point of view is based on what has been legally accepted. According to him, it is against the consensus (ijmac) to exclude sinners from carrying out the duty of }Jisbah, because since the time of the Prophet they have fought against the infidels and nobody disapproved of them taking part in these battles. Therefore, since they were allowed to take part in these battles against the infidels, they must also be accepted to carry out the duty of l}isbah. In this matter al-Ghazal1 has referred to the sinner as a man who wears silk clothes and drinks wine43. However, in relation to giving admonition (waci), the sinner is excluded. In this 41 Al-Ghazali, Il}yct. p. 401. Ibn al-Ukhuwwah, Maciilim. pp. 195-6. 42AI-Shayzari, Nihiiyah. pp. 6-7. See Al-Qur'iin. 2:44, 40:35 and 61:3. 43 Al-Ghazali, ll]yct. p. 399. i I I L 157 situation, he argues that only a trustworthy (cadil) mul}tasib is allowed to admonish the wrongdoer44 Regarding the Quranic injunctions, according to al-Ghazali, in the first verse the condemnation was because they have abandoned the duty of performing good deeds (macru{), not because they have invited other to do so 45 The second verse is referring to those who do not keep their promise46. While the other verse is condemning them because they have forgotten themselves, and not because they have invited others to do good deeds (macra{)47 It seems probable that al-Ghazali's treatment on this matter is in fact, dealing with ordinary Muslim carrying out the duty of l;isbah. Thus, presumably, he would agree in making the appointed mu!;tasib an c adil person. 22.214.171.124. Ordinary people carrying out the duty of qisbah Al-Ghazali then discusses the situation whereby in order for a person to carry out the duty of l}isbah, he must first have the permission of the Caliph (lmam) or the Governor (walf). Al-Ghazali does not describe to whom 44AI-Ghazalr, Iqyt"J. p. 401. 45Al-Qur'an. 2:44. 46Al-Qur>an. 40:35. 47Al-Qur>an. 61:3. L 158 this opinion belongs, but merely said "people" (qaum). However, he then mentioned the opinion of the RawafiQ. who disallowed the function ofl}isbah be carried out unless the "true Caliph" (Imam al-l}aqq) has appeared and sanctioned it48. The condition of having the permission of the Caliph or the Governor, therefore excluded ordinary people from the duty. However, according to him this condition is not valid since the Qu,Jan and the traditions imposed the obligation of carrying out the duty of l}isbah in general term (camm)- that someone who has witnessed a wrongful act but kept silent, has committed a sin. Thus, to limit (takhsf) this obligation to those permitted by the Caliph has no legal grounds. It is clear that in this matter al-Ghazali is dealing with ordinary Muslims carrying out the duty of l;isbah and not the appointed mul}tasib49 Al-Ghazali goes on to discuss whether it is possible for a child to carry out the duty of l}isbah to his father, a slave to his guardian, a wife to her husband, a student to his teacher and the public to their authority. On these matters, al-Ghazal1 agrees that they have a right to do so, but are restricted to informing the truth and to giving proper advice. In certain circumstances, they may, if necessary, take immediate action, as for example a child might break his father's musical instrument and return stolen money. These actions are permissible as long as they do not irritate 48 Al-Ghazali, ll]yct. p. 402. 49 Al-Ghazali, ll]yft. p. 402. 159 his father or cause him to suffer loss of money. However, it seems such actions need to be justified by legal reasoning which is not applicable to a child. Thus, we find al-Ghazal! then continues to refer to the statement of al-Ijasan al-Bari (d. 110)50, who when asked about a child exercising this duty towards his father, said that the child may apply this duty by giving admonition as long as this will not irritate his father and if it does the child should stop51. 184.108.40.206. Capability of carrying out the duty of hisbah A person must have the capability of carrying out the duty of l}isbah before he can be qualified to be a mul],tasib. Based on this qualification, a weak person is excluded from this obligation, but he must perform l}isbah in his heart. It should be noted that in this discussion al-Ghazalr is relating l}isbah directly to amr bi al-macruf wa al-nahy can al-munkar. According to al-Ghazali, mere weakness does not simply remove this obligation and rather the actual weakness should be determined. What he means by actual 60AI-Ijasan ibn Abr al-Ijasan was born in Medina in 21/642. He grew up in Wadr al-Qura and one year after the Battle of Siffin he went to Ba.rah. He is regarded as one of the most prominent early Muslims in the first century of the H:ijrah. When other men, who were held in great esteem, such as Ibn Sirrn (d. 110 El(l) 3:947-8) and al-ShaC})r (d. 110 most probably. First El. 7:242-3), were being questioned on Yazfd's succession, but did not dare give their opinion, I}:asan frankly expressed his disapproval. It is also said that when he died on 1st of Raj ab of 110/10 October 728, the whole city attended his obsequies.lbn al-Nadim, al-Fihrist. p. 202. H.Ritter, El(l). 3:247-8. First El. 3:273. See Schacht, Origin. p. 87. Makdisi, Rise p. 162. 51AI-Ghazalr, ll]ya>. p. 407. 160 weakness is on occasions when a speech against a wrongful act becomes useless and in turn causes harm to the speaker. These two elements (useless and harmful) are further developed by al-Ghazalr, whereby according to him they can be divided into four circumstances which entail different legal actions52: a) His reaction towards the wrongful acts is useless and will invite danger to himself such as being hit. In this situation he is not required (wajib) to carry out the duty of l:J,isbah, in fact in some circumstances he may even be prohibited (ljaram). He should not be present at the place where the wrongful act is being committed and should stay at home. If possible, he should be thinking of migrating. b) In the situation which is in contrast with the one mentioned above, he is categorised as having the capability of carrying out the duty of I:J,isbah and therefore, he is required to do so. c) He knows that his action is useless but he can cope with the possible danger. In this situation he is not required to carry out the duty of l]isbah since his action is useless. 52 Al-Ghazalr, ll}yet. pp. 407-8. 161 d) In contrast to the third situation, where he knows that his action will create danger but he is able to stop the wrongful acts, for example to destroy a musical instrument and to spill wine. In this situation he is neither required to nor forbidden to carry out the duty. Indeed, it is a preferred action (mustal}abb ). According to al-Ghazalr, his opinion is based on the Prophet's tradition concerning the honour of telling the truth to a tyrant Caliph53 However, this preference is subject to certain occasions and circumstances. According to al-Ghazalr, if he knows that it will put him in obvious danger and will create another wrongful act (munkar), he is prohibited (l}aram) from carrying out this duty. An example of this is, if he is to forbid an armed transgressor who is carrying a cup (qadal],) containing wine, when he knows that the man will drink it and strike him if he tries to forbid him. This action according to al-Ghaza.lr, is like a blind person fighting in a war, where he already knows that he will be killed. Another example is when he spills heavy drinkers' wine knowing that they or their children will still be drinking it. In this situation his action is useless and will not prevent the wrongful act due to their addiction. However, if the mu}]-tasib knows that his action will frighten the wrongdoers, or will put a stop to their wrongful 53 Al-Ghazalr, Iqyc). p. 408. L 162 acts or will strengthen and raise the spirit of the Muslims, then he may or ought to do so54. With regard to the fourth situation, a person must be certain (yaqCn) of his knowledge and he cannot rely on probability Therefore, if he strongly believes that a danger will befall him and that his action will become useless, then he is not required to carry out the duty of l}isbah, but if he has any doubt as to the outcome, then he is required to do so 55 3.2. The person to be supervised (muhtasab calaihi) The second element of l}isbah is the person to be supervised. According to al-Ghazali, the only requirement needed to make someone required to be supervised is that the wrongful act is committed by that person. It is sufficient that the person is a human being and he does not require him to be a mukallaf. For that matter, wrongful acts committed by children must be corrected and they must be prevented from drinking wine, even though such an act is not considered as a sin (mac iyah) with regard to them. In fact, the matter has been dealt with by the work ibn 54-rbid. 55 Al-Ghazalr, ll]yc;. p. 409. 163 cu mar that for as young offenders, they will be detained under the custody of their parent and will not be sent to prison 56 According to al-Ghazal1, the person to be supervised is also not required to be mentally sound. Thus, wrongful acts committed by an insane person such as committing an adultery with a woman or a bestiality with an animal must be corrected. However, an insane person who has abandoned the daily prayer and fasting must not be denounced, because such omissions are not considered as wrongful acts57 Presumably, this is because in the former situation, the matter had caused harm or injury to another living creature, whereas in the second case the wrongful acts did not involve others but the offender only. Even though al-Ghazal1 does not mention wrongful acts committed by a person acting involuntarily (ikrah), perhaps he would agree that such an act has to be supervised by the mul]lasib. It is legally accepted that an involuntary act is one of three elements that is to be excluded from the punishment, the other two being actions committed by non-mukallafs and actions coming from an insane person58. The fact that al-Ghazali 66yaQ.ya ibn CUmar, The text (second). p. 135. See pp. 74, 138-9 above and p. 182 below. 57 Al-Ghazali, ll]yrt. p. 418. 68See al-Qur>an. 4:92 and 33:5. See also cAbd al-Qadir cAwdah, al-Tashn--c al-Jinrti. 1:432-3. 164 maintains that wrongful acts committed by the latter (non-mukallafand an insane person) have to be corrected by the mul}tasib, however, makes it seem justifiable to include wrongful acts committed involuntarily. Perhaps, this would also include wrongful acts committed by mistake (khat a)) and in forgetfulness (nisytin). It seems probable that in the case of involuntarily act, the mu/;],tasib has to forbid such an act and should then denounce the person who has imposed the duress. As for wrongful acts committed by mistake and in forgetfulness, the actions to be taken by the mul}tasib are by informing the truth and giving advice which will be discussed in the fourth element of l}isbah. This is a matter which is not far from what has been described in the tradition, when the Prophet said: "Help your fellow man who has been oppressed and the oppresser Al-Ghazall disagrees with the claim which would apply the duty of hisbah toward animals on the grounds that they must be punished for 0 destroying human crops. He holds the claim as not valid because the function of l}isbah is considered to be a prevention of wrongful acts involving the rights of God (}Juqaq Allah)59 Al-Ghazalr argues that in the case of a man who destroys other people' property, he should be forbidden from committing such an act for two reasons: Firstly, it is a sin for it involves the rights of God; and secondly, it involves the rights of men 59 Al-Ghazali. lqyiJ. p. 418. 165 (l;uquq al-cibad) for the property does not belong to him. In the case where a man has injured another man with the latter's consent, he is guilty only because it involves the rights of God. As for the case of an animal which destroys people's property, it is wrong only because it involves the rights of men. Although, animals should be prevented from committing such an act, they must not be punished for their actions. In order to support his argument, al-Ghazal1 maintains that in the case of an animal found eating carrion or drinking wine, it should not be prevented and it is even permitted to feed a dog trained for hunting on carrion. Also, al-Ghazalr argues that the function of l}isbah involves the act of purifying the wrongdoer, which therefore is not applicable to animals60 3.3. Subiect of supervision (mubtasab fihi) The third element of l;isbah is the subject of supervision. Al-Ghazalr defines this as a wrongful act (munkar) which is obvious to the mul;tasib without spying (tajassus) and is commonly known without the need of personal reasoning (ijtihiid)61 Therefore, it must conform to four conditions: 6<>rbid. 61AI-Ghazal1, lqyc;. p. 414. 166 a) It must be a wrongful act (munkar) which the public is prohibited by law from committing. Al-Ghazali disagrees with restricting it to sinful acts, because according to him a wrongful act is more general. On that basis, the mul}tasib is therefore, obliged to respond towards a child or an insane person who have been drinking, by spilling the wine and forbidding them from drinking wine. Similarly, if he finds an insane person committing adultery with a woman or an animal, he has to forbid him although these acts are not considered as sins. This condition covers both grave (kabaJir) and venial sins ~ a g h a Jir). Therefore, it includes the case of a man being alone with a woman who is not related to him (ajnabiyyah)62 b) The wrongful act is continuing. However, precautions (iljtiraz) must be taken against those who have finished drinking, for they might do it again. In a situation where, there is circumstantial evidence (qarfnah) showing that the person is determined to drink wine later on, the only method of /;Jisbah applicable is by giving admonition. However, in the latter situation, the ordinary Muslim is excluded from doing this63 62Ibid. 63Ibid. 167 c) The wrongful act should be obvious to the mu!J,tasib without the need of spying (tajassus). Thus, the mul}tasib is not permitted to spy on hidden sins as this is forbidden by a Quranic injunction64 Al-Ghazal! then explains in further details the difference between obvious and hidden sins, for the mul;tasib is regarded as required to act in the former but not on the latter. According to al-Ghazal!, if someone commits a wrongful act in his house behind locked doors, the mu!J,tasib may not enter the house without the owner's permission. However, when circumstantial evidence makes what is hidden obvious, the mul}tasib should carry out his duty. The evidence can be determined by three means; voices, smell and shape. As for example when the mu/;),tasib is able to hear reprehensible voices or to smell wine or to recognize the shape of a lute, he is then required to carry out the duty of IJ,isbah by denouncing these wrongful acts65 d) The wrongful act should be commonly known and not require personal reasoning (ijtihad)66 Thus, the mu/;),tasib has no responsibility to act upon a matter which is subject to personal reasoning (ijtihad). For that matter, according to al-Ghazali, a I;Ianafi 64Al-Qu,J tin. 49:12. 65 Al-Ghazal1, l l ] y ~ pp. 414-5. 66However, see below pp. 209-211. 168 cannot denounce a Shaficr eating a desert lizard (tj,abb) or meat over which God's name has not been proclaimed at slaughter. Likewise, a Shaficr cannot denounce the practice of the I}:anafi which gives the right to the relative on the maternal side (dhawa al-arl;am) to inherit, or of drinking nabfdh which is not intoxicant, or dwelling in a house acquired by right ofpre-emption (shufah) as a neighbour67. However, }Jisbah can be exercised within the same school oflaw. For example, a Sha.fici can denounce another Shaficr marrying without a legal guardian (walf).lfisbah can also be carried out against a person of another school of law when his practice contradicts his school's teaching. Based on that, a ijanafi can denounce a Shaficr marrying without a legal guardian. In this case the ijanafi may say to the Shafici that his action could be right, but it is wrong in his situation, because it contradicts his belief since he believes that his school of law is the most correct68. Likewise, a Shaficr can denounce a ij:anafi who is joining him in eating a desert lizard (qabb) or meat over which God's name has not been proclaimed at slaughter. In this case the Shafici may say to the I}:anafi:; "Either you decide that the Shafici school of law is the best to be followed so that you may eat it, or you have to leave it for it is against your opinion (muctaqad)"69 67AI-Ghazal1, lqyi}. pp. 415-6. Ibn al-Ukhuwwah, Macalim. p. 197. 68 Al-Ghazal1, lqyr). p. 416. 69 Al-Ghazali. Ibid. 169 Despite of the conditions described above by al-Ghazali, in fact, the subjects of supervision of l}isbah cover almost all aspects of daily life. This is evident in the other l}isbah works. As found in the work of Ya:Q.ya ibn cumar, the subjects of supervision include not only matters involving the market which cover all kind of economic activities, but also those relating to moral and religious behaviour, as well as health and the basic administration of the city70. Further discussions on this matter are made in a subsequent chapter of this thesis 71. 3.4. Stages (dargjiit) of the penalties of bisbah It should be noted here that al-Ghazali's discussion on this matter is made on two separate occasions. First, he holds that the mul}tasib should observe five steps (maratib) of l}isbah in carrying out his duty72 Then, he maintains that there are eights stages (darajat) of }Jisbah's penalty73 It seems that the other three stages (darajat) are additions to the former five steps (mariitib) of l]isbah which he had discussed earlier. In this way, we 70See pp. 72-6 above. 71See pp. 189-190 below. 72AI-Ghazal1, Il]yfi. pp. 402-3. 73 Al-Ghazall, ll]yfi. pp. 420-5. 170 find Ibn al-Ukhuwwah had referred to the five stages of }Jisbah 74 However, we will discuss here the eight stages of l}isbah. a) The first stage is making an inquiry (tacarru{J, i.e. to carry out an investigation on information received about a wrongful activity. However, spying is not permitted75 This is achieved by acting upon information given by two just witnesses who have not been informed of that wrongful act previously. In these circumstances, the mul}tasib can enter someone's house without permission so that he could investigate the wrongful activity. However, if the information was given by only one just witness (cadl wa}Jid), it is preferable for the mul}tasib to enter the house with the owner's permission. Al-Ghazalr then refers to a saying, "to conceal what you have seen is better than to reveal what you are suspicious of'76 b) The second stage is to give information (tacrf{J about what is right. This is because on some occasions the wrongful act is committed through ignorance and discontinued when the truth is revealed to the culprit77 An example is when an ordinary person performes prayer 7'1:bn al-Ukhuwwah, Maciilim. pp. 195-6. 75 Al-Ghazali, fl]yct. pp. 414-5. See also p. 80 above and p. 228 below. 76AI-Ghazalr, ll]yct. p. 420. See also p. 213 below. 77Ibid. See p. 108 above. 171 incorrectly due to ignorance and not disbelief, as otherwise he would not carry out the duty in the first place. In these circumstances, the mul}tasib must inform him of the proper practice by using appropriate words and not condemning him. This is because a person might feel hurt when the truth about his wrongful act is revealed. Al-Ghazal1 holds that to reveal the truth is actually revealing to someone his wrongful acts. He then makes a comparison between revealing these wrongful acts and uncovering the part of the body which should be concealed (cawrah). He considers that the former involves more severe harm than the latter, for the soul (nafs) is more dignified than the body (badan), therefore to insult the former is worse than the latter78 Therefore, the mul}tasib should use appropriate language, as for example he may say; "Nobody is born perfect with the ability to know the correct way of performing the prayer, including myself. However, a wise person has taught me, so that I am able to know the truth. Therefore, I will do the same to you." According to al-Ghazali, it is unlawful for a Muslim to annoy other Muslims in forbidding their wrongful actions. Al-Ghazali argues that it does not make any sense for someone to wash a blood stain with blood or urine 79. 78 Al-Ghazali", Il]yct. p. 421. 79Ibid. 172 c) The third stage is to prohibit (nahy) by giving admonition using proper advice and by frightening (takhwif) the wrongdoer with God's punishment. The way of giving admonition and frightening with God's punishment is by telling stories that consist of warning (wacfd) and the achievements of the successors (sa la/) and the pious80 This third stage applies to those who commit a wrongful act knowing that it is wrong or continuing to do so after having being informed of the truth. However, the mu}Jtasib should carry out this function with compassion (shafaqah) and politeness (lu'f) without harshness (cunuf) or anger (ghacjab). In this case, the mu/;),tasib must view the offender with the eye of respect by sharing the blame for his mistake, as Muslims are regarded as one nation81. He must also be aware of his intention to seek God's pleasure and not act out of hypocrisy (riyaJ). This is because the mu}Jtasib who is acting as an informer might intend to show off his knowledge so that he will be admired or to demoralize the offender. In this situation, al-Ghazal1 suggests that the mu}Jtasib should exercise l}isbah to himself first by examining his intention, so that it shall be for the purpose of pleasing God and not attaining his own pleasure. In relation to this, the mu/;),tasib needs to remind himself of what God has said to Jesus that he must admonish himself first, 80Ibid. 81Ibid. 173 then his people, or else he should be ashamed to face Him. Also it was reported that Dawiid al-Ta>t, when asked about someone who visited the rulers to invite them to do good and warn them of their wrongful acts, replied by saying; "He should not fear the rulers' whip (sawf) or their sword, but should fear a hidden disease (da J da{fn) which is pride (cujub)82 d) The fourth stage is to insult (sabb) and reprimand (tacnrf) by using harsh words. Here, al-Ghazali gives an example from the practice of the Prophet Abraham who condemned his people. The Prophet Abraham said to his people as mentioned in the Qu,Jan; "Fie upon you and upon the things that you worship beside God. Have you no sense "83 In this respect, the mul}tasib may call the wrongdoer, a sinner (fasiq), stupid (a}jmaq) or ignorant (jahil). Al-Ghazali argues that these words refer to the same meaning, that a sinner is also a fool and ignorant. That is because if he is a sinner, he is also a fool, for if he was not, he would not offend against God84 He cannot use obscene language (ful}sh) or what can be interpreted as false accusation (qadhf) or fornication. However, in relation to this, there are two manners to be observed by the mul}tasib. First, he must not 82AI-Ghazali, ll]yct. p. 422. 83Al-Qur'iin. 21:67. 84Al-Ghazali. op.cit. 174 use this stage unless the third stage, i.e. giving admonition and proper advice, has not succeeded. Second, he must not lengthen his speech, but restrict himself to what is relevant. In the event of him knowing that his speech is not capable of deterring the wrongdoer, it is unnecessary for him to speak but to express his anger or to humiliate and show his contempt. If he knows that the man, if addressed, will strike but will not do so if he is treated with stem and disapproving looks, then he must be so treated. It is not sufficient to disapprove mentally but to show his anger and his disapproval. Ibn al-Ukhuwwah seems to follow this procedure of al-Ghazali where he quoted the same wording as him. However, Ibn al-Ukhuwwah referred to this as the third step (maratib ), not the fourth85 e) The fifth stage is to take an immediate action (taghyfr bi al-yad), like destroying a forbidden musical instrument, spilling wine, removing silk clothes and forbidding anyone to sit on silk (i.e. a silk cushion), restraining and preventing someone from acquiring other people's property unlawfully, sending a way an unclean person (junub) from the mosque and the like. This fifth stage also include the term taczfr fr amwal (financial penalty) which has been used by 85 Al-Ghazalr, ll]yct. p. 422. Ibn al-Ukhuwwah, Maciilim. pp. 195-6. See p. 169 above. 175 Ibn al-Ukhuwwah86. However, this stage is applicable to specific sins, but not to others. In this respect, wrongful acts in relation to speeches and inner sins (maciyyat al-qalb) are excluded. To carry out this action the mul]iasib must observe two conditions87: i) that the wrongdoers are not capable of doing it themselves. Therefore, the mul}tasib cannot spill the wine or send away unclean persons if they are able to do it themselves, ii) that the mu}Jtasib must confine his action to what is necessary and what is regarded as appropriate measures. Therefore, if he is able to remove it by hand, he should not use his leg or the other parts of his body, for it is forbidden to intensify the injury (ziyadat al)adha fi hi mustaghna canhu). He should not tear silk clothes or burn the musical instrument, but just break them so that they will become useless. Similarly, in the case of spilling wine, the mul}tasib must observe the circumstances, so that he may break the container if it is difficult for him to spill the wine due to the container's small opening or if it will take a long time to do so. However, if the spilling can be easily done without damaging 86Ibn al-Ukhuwwah, Maciilim. pp. 194-5. 87 Al-Ghazali, ll]yct. p. 423. - ....... 176 the container, the mul]tasib 1s required for compensation (tjamtin), if he breaks it. Regarding the case of breaking vessels containing wine or destroying the properties where wine is served, it is the prerogative of the rulers. Thus, the public is excluded, for it involves legal reasoning for which they are not qualified88. The same is mentioned by Ibn al-Ukhuwwah who goes further to explain that it was the former opinion of Shafic1 permitting the rulers to impose the fiscal penalty. He then quotes the above passages from al-G haza.li89 f) The sixth stage is threatening to inflict punishment (al-tal}drd wa al-takhwff), for example by saying to the wrongdoer, "Stop doing this or I will hit you". Manners that have to be observed here are that he should not threaten them with things that are not lawful. Therefore, he cannot threaten to hit their children or to rape their wives, for these actions are prohibited (}Jartim). According to al-Ghazalr, it is permissible for the mul}tasib to threaten the wrongdoer, even though he will not impose his threat (wacfd), since not carrying out a threat 88Ibid. 89Ibn al-Ukhuwwah, Macalim. op.cit. --177 (wacid) is regarded as noble (karam). In contrast, it is bad for someone to break his promise (wac d)90 g) The seventh stage is to inflict punishment (mubasharat al-Q,arb) with hand, leg or anything without drawing a weapon. This action may be carried out by the public in emergency cases (qararat) but it is restricted to what is necessary. Thus, he should stop once the wrongful act has been eliminated. The mu}J,tasib should carry out this function step-by-step (tadrfj) and he should know when it is necessary to use weapons. An example of this is that when he sees a sinner grabbing a woman, he should tell him to leave the woman or he will be beaten. However, the mu}Jtasib should not have the intention of killing him, but only of hitting him on his thigh or leg. Al-Ghazalr then cites the opinion of the Muctazilrs91 which says that in matters related to the rights of God, l}isbah can only be carried out by the Caliph, so that he may use appropriate language or force. According to them only the Caliph (imam) has this authority. In contrast, al-Ghazali allows the common people to carry 90 AI-Ghazalr, Il]yct. p. 424. 91See the struggle between ahl al-kalam, the rationalist Mu9;azil1s and ahl al-J;adrth, the traditionists. It should be mentioned here, that the former gained political support especially during the cAbbasid caliphates from the reigns of al-Ma)mun to al-Mutawakkil (from 198/813-232/84 7). It was then due to the heroic resistance of .Al].mad ibn I}:anbal (d. 241/855) that the Muctazilis's political strength was eliminated. See Makdisi, Rise. p. 7. --178 out this duty, regardless of whether the case belongs to the human's right or God's right92 h) Finally, a situation where the mul]lasib is not able to perform his function on his own and he requires the help of his assistants (acwan). In doing so, the wrongdoers may also gather their aides and as a consequence, a war will break out between the two parties. In these circumstances, according to al-Ghazal1, there are two different points of view on whether the mul}tasib should obtain the Caliph's approval prior to his action. Those in favour of obtaining the Caliph's approval argue that the action will lead to devastation and destruction in the country, whilst the other party holds it as a holy war (jihad) and if the mul},tasib is killed, he will die as a martyr (shaht:d). According to al-Ghazan, this is a rare phenomenon. He concludes that whoever is capable of removing a wrongful act, is required to do so with his hand, or weapon, by himself or with assistants, which ever is appropriate93 It should be noted here that there are several different punishments which are found in other l}isbah works but have not been discussed by al-Ghazall. As indicated by the work ofYaQ.ya ibn CUmar, these punishments 92 Al-Ghazali, ll]yci. pp. 424-5. 93 Al-Ghazali, Il]yci. p. 425. 179 include returning defected goods, paying compensation, destroying unlawful things such as musical instruments and pots for making nabrdh, beating, detention, parading in the market, banning from the market, and confiscating the goods. In some cases, YalJ.ya. includes the penalty like rejecting a person testimony which is for the offence of men who do not cover themselves in the public baths94 and in other occasion he maintains that the vendors who were hoarding during the time of scarcity will be instructed to take out their goods and sell them in the market95 Regarding the penalty of returning the goods it applies to bread insufficient in weight, bitter cucumber, spoiled eggs, mixing meat and clothes infested with lice96. As for paying the compensation, it applies to negligence of the miller, mixing the goods, bread unleavened, mixing the milk, mixing oil, missing vendors, damages caused by sprinkling the water, damages caused by digging a pit, money-changing, slaughtering an animal wrongly and loss of wedding outfit and basic house equipment due to negligence97. As for destroying unlawful things the penalties apply to the breaking of musical instrument and pots for making nabrdh98 Regarding 94 b See p. 121 a ove. 95See p. 129 above. 96See pp. 98, 106, 107, 110 and 132 above. 97See pp. 90, 98, 100, 123, 124, 133, 135 and 136 above. 98See pp. 118 and 120 above. 180 beating and detention, the penalties seem to be applied to almost all offences. However, on numerous occasions, Y alJ.ya held that a warning must be given to the vendors before such an action can be taken against them99 The same is the case for the penalty of parading in the market area. As indicated in the work of Y alJ.ya, the penalty of parading in disgrace would be applied for offences like making counterfeit coins100 and ahl al-dhimmah resembling the Muslim in their attires101. Although, these two cases are mentioned, it seems probable that it would include other offences. This because the reason for this penalty is to publicise that such a person cannot be trusted and in order to deter others from committing the same offence102. Although banning from the market, is considered more severe than beating103, it seems to be one of the most common penalties found in the work of Y alJ.ya ibn cu mar. Thus, we find the penalty would be applied to the cases of adulteration of weights and measures104, price-fixing105, mixing the goods106, negligence of the bakers who were 99See 80, 95, 97, 100, 105, 108, 110, 121 and 122 above. 100See p. 80 above. 101 b See p. 125 a ove. 102Ibn FarQ.un, TabtJirat al-lfukkiim. p. 202. 103See pp. 1001 and 110 above. 104See pp. 80, 83 and 84 above. 105See pp. 83 and 84 above. 106See pp. 95 and 100 above. 181 making bread that contained stones or was insufficient in weight107, mixing of meats108, the sale of defected and giving short weights and measures110. As for confiscating the goods, the penalty applies to a small quantity of oil, milk and bread111 This will be made clear in Table 3.1. below. Table 3.1. Types penalties according to YabYa ibn cumar . . 'IYI!es of :Penalties . Returning the goods Sale of unripe fruit, unleavened bread, bitter cucumber, spoiled eggs, mixing of new oil with the old of the same quality, mixing the meats, sale by a blind person, sale of clothes by a person suffering from leprosy, damaged food in container, clothes infested with lice 107See p. 98 above. pp. 110 and 111 above. 109See p. 108 above. 110See p. 128 above. 111See p. 128 above. This is the opinion of Ibn al-Majishiin. See also p. 104 above. Paying the compensation Destroying the unlawful things Rejecting a person testimony 182 Negligence of a miller, mixing the goods, unleavened bread, mixing the milk, damages caused by sprinkling of water, damages caused by digging of pit, loss of money during money-changing, slaughtering an animal wrongly and loss of a wedding outfit due to one's negligence Musical instruments and pots for making a nabilh A man found naked in the public baths Compelling a person to take out his A vendor who was hoarding annual stock and sell it in the foodstuff during the time of market scarcity 183 iwes .. , .. _,_;: ,;.,_;, :: :::.... . .;. Beating Adulteration of goods, selling unripe fruit, cheating in foodstuff, falsifying the measures, hoarding the foodstuff, immoral behaviour Being in detention Making counterfeit coins, cheating in foodstuff, giving short weights and measures, qadhf, young offender (will be detained under the custody of their parent) Parading in the market Making counterfeit coins, mixing the meats for a second offence, ahl al-dhimmah resembling the Muslims in attires, hoarding the foodstuff 184 :Types. of ' .. .. : ... ; '.' .. :. ,'_. .. .... . . . . . ... . ' . ' ,. ... . __ , .. Banning from the market Adulteration of weights and measures, price-fixing, sale of unripe fruit, sale of bread contains stones, mixing the wheat, mixing the meats for a second offence, blowing into carcasses, sale of a shrunken clothes, cheating in weights and measures, mixing the good quality of food with the lesser, mixing the goods, negligence of the bakers who were making bread that contained stones or was insufficient in weight, mixing the meats, the sale of defected goods and giving short weights and measures. 185 Confiscating the goods .:Types of'offences ... ' .:,.'.' Figs rubbed with oil, milk when water was added to it, bread insufficient in weight, sale of unripe fruit, mixing of oil of different quality, missing vendors (sell their goods and the money will be given to the treasury), sale of bread contains stones, Hoarding foodstuff, adulteration of saffron and musk (This is the opinion of Malik and was adopted by Yal}ya ibn cumar. However, Ibn Majishiin held that adulteration of goods of nominal value, such as bread and milk will onlv be confiscated). According to al-Ghazall, the manners that had to be observed by the mul?:tasib which he has mentioned in discussing the stages of !Jisbah, originated from the mu!Jtasib's own character, namely; knowledge (cilm), 186 piety (warac) and honourable personality (l}un al-khulq ). Al-Ghazan holds that knowledge is important, so that the mul;tasib will be able to know the subject of l}isbah and its limitation in order to restrict himself to what is lawful according to the revealed law112. As for being pious, al-Ghazal1 maintains that it aims to prevent the mu}Jtasib from indulging in matters beyond his power and to eliminate his personal inclination and self-indulgence113. However al-Ghazan argues that having a knowledge and being pious are not sufficient, as these two cannot control his anger and feeling. Thus, it is necessary for him to have an honourable character, so that he will be able to perform the function of }Jisbah with compassion114. Similarly, we find Ibn Taymiyyah holds that the person performing this duty must have three elements: knowledge (cilm), gentleness (rifq) and patience (abr)115. Al-Ghazali argues that these three characters must exist in a mul}tasib, for the lack of them could turn his performance into a wrongful act (munkar). He then gives examples from the Prophet's tradition and the practice of his predecessors. Among other things, he cites a case of Ibn cA)ishah116, who saw a drunk young man from Quraysh grabbing a 112 Al-Ghazali, Il]ya}. p. 425. 113Ibid. 114AI-Ghazali, ll}ya.J. pp. 425-6. 115Ibn Taymiyyah, al-Ifisbah. pp. 84-5. See also transl. p. 88. See also p. 32 above. 116 Abu cAbd al-RaQ.man cAbd Allah b ~ ~ a m m a d (d. 228/842-3) was generally known as Ibn cA>ishah, because he was the son ofcA>ishah, the daughter of'falQ.ah ibn CUbayd Allah al-Taymi, one of the Prophet's principal Companions and who was slain at the Battle of the Camel (36/656). He was a traditionist and a transmitter of historical and literary information. 187 woman. Upon hearing the cries of the woman, the people gathered around and beat the young man. Then, Ibn c_A)ishah spoke loudly "Go away and leave my nephew", and said "Bring him to me". He then took the young man to his house and informed him of his wrongful action after he regained his consciousness. The young man felt ashamed of himself and cried. He then promised to Ibn cA)ishah that he would not continue in his bad habit. According to al-Ghazali the young man then became Ibn c_A)ishah's student and wrote the Prophet's traditions from him117. It was at Baghdad that he gave lessons. He was a great believer that the Qur>an was not created for it is said that he was severely flogged by the order of the Caliph al-Ma>mu.n. An incident which happened to him whilst undergoing this punishment gave the reprobate poet Abu Nuwas, the idea of composing on his misadventure a piece of verse. He died in 228/842-3. Ibn Khallikan transl. vol iv, p. 258, ft 1. However Ch. Pellat seems to refers him to his father, (See Mu.Qammad ibn I;;Iaf al-Taymi) who according to al-Isbahani was the qacJ,r of Basrah. Isbahanf, Aghiini. xviii, p. 4. It is also said that his father was a genealogist, collector of traditions and wit of Barah, who owes his by-name Ibn c.A_)ishah (al-Akbar) to c.A_)ishah bint 'fall]ah ibn CUbayd Allah al-Taym1, from whom he was descended. Ch. Pellat, El(l). 3:698. He should also not to be mistaken with another popular Medinan singer of the Umayyad period who was also known as Ibn c.A>ishah. See Abu Jacfar Mul].ammad Ibn c,A>ishah (d. 100/718). Fuat Sezgin, i, p. 813. Al-Zirikl1, al-Acliim. 7: 48. See also Dr. D. Salloum. Shakhfliyyiit Kitiib al-Aghiini. Baghdad, 1982 pp. 345-6. Isbaham, Aghiini. ii, p. 62. 117 Al-Ghazal'i, ll]yiiJ. pp. 427-8. 188 CHAPTER FOUR The duties of the mul]tasib 4.0. Introduction Al-Maward! and Ibn al-Farra) maintain that the duties of the mul}tasib consist of two elements: enjoining what is right (al-amr bi al-macraf) and forbidding what is wrong (al-nahy can al-munkar). These two elements are then divided into three categories: matters involving the rights of God (/;J,uqaq Allah), matters concerning the rights of men (/;J,uqilq al-cibad) and matters dealing with both rights of God and men1. Matters involving the rights of God include three kinds: the acts of worship and prohibited acts2 It should be noted here that the rights of God are defined as those matters which aim to increase spritual consciousness of God's supremacy so that the believer would worship Him and obey and preserve His law. The rights of God also include the performance of certain obligations which are for the benefit of the public, such as the obligation ofjihad. These rights of God cannot be invalidated3 On the other hand, according to al-Mawardi 1Al-Maward1, Al]kiim. pp. 243, 247. Ibn al-Farra>, Al]kiim. pp. 271, 275. 2Al-Mawardr, Al]kiim. pp. 243-5, 247-254. Ibn al-Farra>, Al]kiim. pp. 271-3, 276-283. 3Wahbah. 4: 13. 189 and Ibn al-Farra? matters concerning the rights of men include the maintenance of public utilities, conduct between neighbours and supervision over the skill of medical practitioners and teachers, the honesty of certain economic occupations and the quality of the work of craftsmen4 The rights of men are defined as those matters which are for the benefit of mankind, whether they involved the interest of the public or a particular person. These rights can be invalidated5. Matters that involved both rights of God and men include law of waiting period for a divorcee, law of maintenance involving a reluctant father, maintenance of slaves, care towards animals, foundlings, stray animals and ahl al-dhimmah, castration of human beings and animals, dyeing of hair, fortune-telling and the like6 Ibn al-Ukhuwwah divides the duties of the mu}Jtasib in the same way, that is by classifying them into the rights of God, the rights of men and the rights of both of God and men7 After copying the work of al-Maward1 with some variances and comments, Ibn al-Ukhuwwah then expanded his work by including additional duties which in fact mostly derived from the work of al-Shayzan-8. Meanwhile, al-Ghazal1 deals with the matter by discussing various wrongful acts and dividing them according to places such as the 4AI-Maward1, Al}kiim. pp. 245-7, 255-6. Ibn al-Farra>, Al}kiim. pp. 273-5, 284-6. 5Wahbah. 4: 14. 6AI-Maward1, Al}kiim. pp. 247, 256-8. Ibn al-Farra>, Al}kiim. pp. 275, 287-292. 7Ibn al-Ukhuwwah, Maciilim. pp. 22, 27. 8See previous discussion in the Introduction pp. 28, 29. 190 mosque, the market, the street, the public baths, public accommodations and the like9. However, al-Ghazali: has omitted some of the duties which have been discussed by al-Mawardr and Ibn al-Farra) such as those matters concerning the supervision of medical practitioners and management of the city. In fact, in this way the authors of }jisbah literature discuss the duties of the mul:J,tasib by mentioning various aspects of life without categorizing them. Thus, despite the above classifications made by the medieval Muslim scholars which seem to be rather ambiguous, they would perhaps agree that the duties of the mul:J,tasib can be divided - in the way which we have discussed in earlier chapters10 - into four categories: to supervise various kinds of economic activities in the market, to observe matters relating to moral and religious behaviour, to inspect health professions and to administer the municipal control of the city. 4.1. The duty to supervise the market Market supervision had been the most important duty of the mul:J,tasib. Thus, almost alll]isbah literature covers matters mostly related to economic activities in the market, except for the work Nisab al-1/]tisab of al-Sunami which is concerned mainly with wrongful moral and religious 9 Al-Ghazalr, ll}ya>. pp. 428-436. 10See previous discussion in Chapter One pp. 75-6 and in Chapter Three p. 168. 191 behaviours11. In this manner, we find the work of Yal}.ya ibn CUmar and other /;J,isbah literature make market supervision the main focus of their attention. Thus, the titles of the work ofYal:J.ya ibn cumar, i.e. Kitab AJ;kam al-Silq and Kitiib wa al-Al}kiim {r Jamf AJ;wal al-Silq, suggest that the work deals with the duty of market supervision. This role is also considered as the most well-established duty of the mul}tasib. As we have discussed earlier, the institution of mul}tasib was a transformation of the previous office of camil caza al-silq and d/}fb al-silq, whose major duties were concerned with the supervision of the market and this is evident in the work ofYalJ.ya ibn cumar12. In the same way, al-Mawardi maintains that the main duty of the mul}tasib (cumdat naiarihi) is to prevent any deficiency in weights and measures because this has been warned against by God13. Similarly, Ibn al-Farra) regards the responsibility to control the use of correct weights and measures as a necessary duty of the mu}Jtasib14 In this way it seems that the duty of the mul}tasib to supervise the market involves many aspects but can be classified in three categories: firstly, the mul:J,tasib has to deal with the problem of price-fixing; secondly, he must control the use of correct weights and measures; and thirdly he has to supervise various kinds of economic occupations so that 11See previous discussion on the Introduction p. 30. 12See previous discussion in the Introduction pp. 9-10. 13 Al-Maward1, Al}kiim. p. 254. See al-Qu,.J iin 83:1-5. See also Bukhan, vol 3, p. 191.
~ a l i k ibn Anas, Muwatta> (riw. al-Laythi). pp. 553-4. Muwatta> (riw. al-Suyufi). vol. 2, pp. 74-5. Al-Saqati, loc.cit. 49Mucjam Lug hat al-Fuqahii}. p. 375. Wahbah. 4: 504. Al-Saqap. loc.cit. 5<Malik ibn Anas, Muwattd (riw. al-Laythi). p. 547. Muwattd (riw, al-Shaybiini). p. 276. Muwattd (riw. al-Suyiitf). vol. 2, p. 70. Ibn Qudamah, al-Mughni. 7; 37-8. 51Malik ibn Anas, Muwatta> (riw. al-Laythi). pp. 547-8. Muwat(ct (riw. al-Suyufi). p. 71. 52Al-Saqati, al-lfisbah. p. 4 .. 202 the sale price for a dog53. However, Abu Ijarufah sanctions this sale transaction 54. f) The Prophet forbids a person to bargain for goods which another has agreed to buy, until the latter has bought or withdrawn. He also forbids the contract of al-najsh that is to bargain for a raise in price without an intention of buying55. g) The Prophet forbids a person to buy from someone who has not reached the market because the latter does not know the current market price and he forbids a townsman to sell on behalf of the nomads56 h) The Prophet forbids the contract of al-muzabanah, that is a sale of dried dates in exchange for fresh dates hanging on trees, selling fresh grapes for dried grapes or raisins, selling wheat in field for
ibn Anas, Mu watt a) (riw. al-Laythi). p. 548. Muwatta1 (riw. al-Suyu(i). vol. 2, p. 71. 54See Ibn Qudamah, al-Mughnf. 7: 278. ibn Anas, Muwa(tct (riw. al-Laythi). p. 569. See transl. p. 307. Mucjam Lug hat al-Fuqahrl. p. 475. ibn Anas, MuwattcJ (riw. al-Laythi). loc.cit. Muslim, vol. 9, p. 163. Subul al-Saliim. vol. 3, p. 20. Nayl al-Awtiir. vol. 5, p. 164. Ibn Qudamah, al-Mughni. 7: 241-3. Mucjam Lug hat al-Fuqaha}. p. 145. Wahbah. 4: 239. 203 dried wheat, selling cooked green wheat for dried wheat and selling wet wheat for dried wheat57 i) The Prophet forbids selling fruit until it is ripe 58 He also forbids selling wool on the back of an animal and milk in the udder59 j) The Prophet forbids al-mul],aqalah and al-mukhabarah that is a contract of renting land together with its product60 k) The Prophet said: "A sale of al-mu}Jaffalat is cheating, and it is not permissible for a Muslim to cheat another Muslim"61 It should be noted here that the term al-mu}Jaffalat is also used to mean a sale by keeping an animal unmilked for a long time to cheat the potential buyer. However, as we have mentioned earlier this contract is commonly known as 62". 57Malik ibn Anas, Muwattd (riw. al-Laythi). p. 521. See transl. p. 288. Muwattd (riw. al-Suyuti). vol. 2, pp. 54-5. Muslim, vol. 9, pp. 192-3. Ibn Qudamah, al-Mughni. 4: 16. 58Malik ibn Anas, Mu watt a? (riw. al-Laythi). p. 517.
4:100-1. 212 CHAPTER FIVE The duty to supervise moral and religious behaviour 5.0. Introduction As we have mentioned earlier, the work of Ya}J.ya ibn cumar has dealt with the matter. This can be found in cases of playing musical instruments, using public baths, crying aloud over the dead, visiting graves, women wearing shoes that make noises, slaughtering an animal, the loss of wedding outfit and basic house equipment and immoral behaviour1. Later, we find the authors of l:Jisbah literature normally discuss this duty under the mu}Jtasib's responsibility in matters dealing with the rights of God. In this way, the discussions include acts of worship, immoral behaviour and possession of unlawful property. 1See pp. 73-4 above. 213 5.1. The acts of worship The acts of worship include prayer, calls to prayer, alms-tax (zakat) and fasting. The discussion on this subject also deals other aspects which are concerned with heresy2. According to al-Maward1, Ibn al-Farra> and Ibn al-Ukhuwwah in the cases of prayer, ablution and the call to prayer, the mul}tasib has to prevent any attempt to change the valid procedure, such as uttering the silent prayer aloud and vice versa, or making additions to prayer and the call to prayer which are not approved by the tradition3 The mul}tasib should denounce these acts and punish (ta!drb) those who are stubborn (mucanid) when their actions are not approved by an authoritative religious leader (imam matbac)4 The same is the case of improper washing of the impurities off one's body, garments and place of prayingf>. According to al-Mawardi, in the cases of worship, the mul}tasib cannot denounce these acts unless he is certain as he cannot rely on 2Al-Mawardr,.Al]kam. p. 247. Ibn al-Farra>,.Al]kam. p. 276. Ibn al-Ukhuwwah, Macalim. p. 27. Amedroz, JRAS. p. 86. 3AI-Mawardr,A}Jkiim. p. 247. Ibn al-Farra>,A}Jkiim. p. 276. Ibn al-Ukhuwwah,Ma04lim. pp. 27-8. 4lrhe latter injunction is found in both al-Mawardi and Ibn al-Ukhuwwah, whereas Ibn al-Farra> omits it. Al-Mawardi. loc.cit. Ibn al-Farra>. loc.cit. Ibn al-Ukhuwwah. loc.cit. 5 Al-Mawardi, loc.cit. Ibn al-Farra>, loc.cit. Ibn al-Ukhuwwah, loc.cit. 214 suspicion Al-Mawardr then cites the story of a mu}jtasib who questioned a man entering a mosque with his shoes on, whether he did this at his house. The man denied this, but the mul],tasib insisted that he must take an oath to support his denial. Al-Mawardi held that the mul],tasib had shown his ignorance and had exceeded the l}isbah jurisdiction by his bad opinion (saJ of others6. Although al-Ghazali does not make the same statement as al-Mawardi, he seems to agree with him, for in this respect he refers to a saying that "to conceal what you have seen is better than to reveal what you are suspicious of'7 Similarly, al-Mawardi argues that when he suspects that someone has not performed the ritual washing (ghusl janabah), or has abandoned the prayer or the fasting, he must not denounce him, but he may admonish and warn him of God's punishment. In other words, suspicion does not justify a denunciation, but allows him to admonish and give warning8. According to al-Mawardi and Ibn al-Farra>, in the case of the Friday prayer, the mul}tasib must ensure that the duty is enforced and its omission punished when the total number of inhabitants reachs a sufficient number, i.e. forty and upwards9. It should be noted here that this was the opinion 6AI-Mawardr, Al]kam. p. 247. 7 Al-Ghazali, l"IJyaJ. p. 420. 8 Al-Mawardr, Al]kam. p. 248. 9 Al-Mawardr, Al}kam. p. 243. Ibn al-Farra), Al}kam. p. 271. 215 of the Shafi'1:s and the I}:anbalis, while the Malilds hold that the mininum number is twelve, and Abu I}:anifah declares three men excluding the imam are a sufficient number to perform the Friday prayer10 In this way, al-Mawardi holds that if the number is insufficient, there are four possible situations: a) The mui:J,tasib and the community both agree that the prayer should be performed. Here, the mu/;],tasib must enforce the duty but the penalty for non-compliance should be lighter than that in the situation where the number of the congregation is sufficient. b) The mul}tasib and the community both agree that it should not be performed. In this situation, the mul}tasib must not enforce the duty but it is preferable for him to prevent those who practise it. c) The community views that it should be done, but the mul}tasib disagrees. In this situation, the mu/]lasib must neither impose the duty, for it is against his own opinion, nor forbid them from what they regard as a duty. d) The mul}tasib approves of it but the community is against it. Here abandonment, if persisted in, may cause the Friday prayer to be 10Wahbah. 2:275-6. 216 neglected indefinitely even if the number of the population increases. According to al-Mawardi in this situation there are two opinions of the Shaficys: i) Abu sacyd al-ltakhn holds that he may lawfully act on the account of public interest, for he fears that the younger generation will be misled into thinking that the duty can be dropped with a greater population as it had been when the population was less. According to al-Mawardi, the same precaution was given by Ziyiid11 who ordered the courtyard of the mosques ofBarah and KUfah to be strewn with pebbles in order to avoid possible misunderstanding among the younger generation who might think that the act of rubbing the face after prostration is part of the prayer, when the fact is, it was to remove the sand12 b) an anonymous opinion of the Shaficrs which maintains that the mu}J,tasib should not denounce them because he is not entitled to bring people into his way of thinking, nor to impose his opinion on them in matters of religion when they are able 11 According to Ibn al-Ukhuwwah, he was Ziyad ibn Abi Sufyan. Ibn al-Ukhuwwah, Maciilim. p. 23. 12 Al-Mawardi, Al].kiim. pp. 243-4. 217 to do so themselves, for according to their opinion the obligation falls due to insufficient numbers13 In relation to this, Ibn al-Farra) declares that the mul}tasib may enforce the duty by virtue of the opinion of Alpnad ibn ijanbal that he may do so on the account of public interest lest the young should grow up to neglect the duty thinking that it can be dropped with a greater population as it had been when the population was less. However, according to another opinion, the mu}Jtasib may not enforce the duty for he should not impose his opinion on others in a matter of religion, when they are capable of doing so themselves. For this, Ibn al-Farra) cites another opinion of Alpnad ibn I}:anbal which declares that one should not impose his school's teaching upon others14. According to al-Mawardl, in the case of cld prayer, there are two opinions of the Shaficis, the first regarding it as a recommendable act (masnilnah) and the second as a collective duty (farq kiftiyah). On this basis, if the mu/;]Jasib accepts the first opinion, he may recommend the performance of the prayer. Whereas, he is obliged to order such an act if he agrees with the second opinion15 Meanwhile, Ibn al-Farra) maintains that 13 Al}kiim. p. 244. 14-rbn al-Farra>, Al}kiim. pp. 271-2. 15 Al-Mawardf. op.cit. 218 the mul}tasib should order the performance of the c ld prayer, because he regards it as a collective duty ({arij kifayah)16 As for prayer in congregation (alat al-Jamacah)11, and call to prayer at a mosque, al-Mawardi argues that they are parts of the established Islamic rites and signs of worship by which the Prophet distinguished the Islamic country (dar al-Islam) from that of polytheism (dar al-shirk). In the event of the inhabitants of a town deciding to suspend the performance of the congregational prayer at their mosque or to omit the call to prayer, there are two opinions of the Shafic1s18. The first holds that it is recommendable (mandub) for the mu}Jtasib to enforce these duties, whereas the second regards it as obligatory (wajib). Ibn al-Farra) agrees with the second opinion of the Shaficys and holds that it is compulsory for the mul}tasib to enforce the performance of these duties. This is because the !Janbalrs maintain that the performance of prayer in congregation is an individual duty (farq cayn). It should be noted that the ijanafis and the Malikls consider this as the most recommendable act (sunnah mu!akkadah)19 However, according to al-Mawardi, the neglect of prayer 1E>rbn al-Farra>, Al]kiim. p. 272. 17However, Amedroz and Levy have translated this as the Friday prayer. See Amedroz. JRAS. p. 82. Levy, transl. Macazim. p. 7. 18However, according to the more reliable opinion (WJaiJI],) of the Shafi,s, the performance of the congregational prayer is a collective duty (farcJ ki{ayah). Wahbah. 2:150. 19Ibn al-Farra), Al}kiim. p. 272. See Wahbah. 2:149-150. 219 in congregation (jamticah)20 and the call to prayer by an individual should not be denounced by the mu/;),tasib, because these are considered as recommended (nadb) and can be missed with a justifiable excuse21 However, the mul}tasib has to denounce those who neglect these duties on a habitual basis for they might be imitated by others. Even so, the mu/;Jlasib must comply with the standard procedure of law and hear the reason for their non-compliance. Al-Mawardi then cites a tradition of the Prophet who seriously considered setting fire to the houses of those who failed to attend the congregational prayer at the mosque22 In the case where the individual has delayed the prayer until the time has expired, the mul}tasib should take into account his defence. If the cause was forgetfulness, the mul}tasib should admonish, not punish; if it be negligence and carelessness, he should punish and compel performance; but delay is not punishable when the specified hour is not yet past on the grounds of the diversity of legal opinions for some hold delaying to be recommendable23 Where the general consensus decided to delay the prayer to its utmost time limit, and the mul}tasib holds that it is better to 20Perhaps this is the correct reading jamacah (prayer in congregation), instead of jumcah (Friday prayer), because to neglect the Friday prayer by an individual is wrong and must be objected by the mul]tasib. Ibn al-Farra> and Ibn al-Ukhuwwah also refer this as (prayer in congregation). Ibn al-Farra), Al}kiim. p. 272. Ibn al-Ukhuwwah, Ma0iilim. p. 24. 21See Wahbah 2:169-172. 22See Wahbah. 2:151. 23 Al-Mawardi, Al]kiim. pp. 244-5. Ibn al-Farra), Al]kiim. p. 272. 220 be performed earlier, the jurists have two different views24 The first is to follow the opinion of the majority, but this might lead to a misconception among the younger generation so that they think that this is the specified time for the prayer. The second is to ignore the consensus, but this will bring about disintegration, because some will perform the prayer at a later period while others will have done it earlier. Ibn al-Farra) agrees with the second opinion and holds that the mul:J,tasib may enforce his own view, in order to avoid the misunderstanding of the younger generation25 The mul],tasib must denounce an imam (i.e. the leader of prayer) who prolongs the prayer in public and in much frequented mosque, because it will cause the weak to suffer and discourage the busy. In this respect the Prophet reminded Mucadh ibn Jabal, who lengthened the prayer not to become a tester (fattan) of men's belief. However, the mu/Jlasib must not punish, but replace him with a less prolix imam26 With regard to the call to prayer, the mul:J,tasib must not interfere with the individuals whose view differs from his, if their decision is supported by a legal opinion. Thus, he should not enforce his own view on 24According to Levy, this is the question whether the mul;tasib must submit to common view. Levy, transl. Maciilim. p. 7. 25AI-Maward1, Al]kam. p. 245. Ibn al-Farra), Al]kam. p. 272. 26AI-Mawardl. Al]kam. pp. 256-7. Ibn al-Farra), Al]kam. pp. 288-9. 221 them or prevent their practice. Similarly, in the case of ablution and purification, he must not denounce their practice when it is in accordance with a legal opinion, even though his view is different. Examples that can be included are the removal of impurity by liquids and ablution with water mixed with other substances or rubbing only part of the head, or neglecting to remove as much as a dirham weight of impurity - none of these are matters for constraint or prohibition. However, the mul}tasib should denounce the practise of making ablution with fermented date juice (nabrdh al-tamr) when water is not available, with regard to two possible consequences. The first is that this may lead to people regarding such drink as always permissible and the second is that this may lead to people becoming intoxicated by drinking it27. The mul}tasib should not punish someone whom he finds eating during the day in Ramaqan, until he is certain of their reason for breaking the fast. If the reason was because of sickness or that they are travelling, then they should not be denounced28. He may make an inquiry, if circumstantial evidence with suspicious indications (imarat al-rayb) exists. In other words, suspicious indications justify inquiry. In this respect, if the excuse is legitimate, the mul}tasib must approve of it and should not 27Al-Mawardi,.Al]kiim. p. 245. Ibn al-Farra),A.1].kam. p. 273. Ibn al-Ukhuwwah,Maciilim. p. 25. 28Al-Mawardi,Al]kam. p. 248. Ibn al-Farra),Al]kam. p. 276. Ibn al-Ukhuwwah,A.l]kam. p. 28. 222 condemn him, but he may ask the person to eat in privacy. However, the mu!J,tasib may not make the man take an oath, if he is in doubt as to the truth of the statement made to him. On the other hand, if the wrongful act be without a valid excuse, the mul:J,tasib should admonish the offender openly and punish him. Even though there may be a valid excuse, the mul}tasib should not permit the man to eat openly in order to prevent any suspicion arising among ignorant people who are unable to differentiate between the situation of a valid excuse and an invalid one29 In the case of someone who refuses to pay alms tax, it should be dealt with by the tax official ccamil al-t;adaqah)30, if it is a visible property (al-amwal al-iahirah). The mul:J,tasib may perhaps intervene if it is concealed property (al-amwal al-batinah) because the tax official is not entitled to look into this type of property. It should be noted here that al-Mawardi divides the property liable for alm-taxs into visible and concealed. The former are the agricultural products (zarc) and livestocks (mawashi) which are difficult to conceal, in contrast to the latter which can be easily hidden and include properties such as gold, silver and some commodities (curaq tijarah). According to al-Mawardi, the tax official is not liable to impose payment for concealed properties because that is the duty of its owner, but 29 Al-MawardL loc.cit. Ibn al-Farra). loc.cit. Ibn al-Ukhuwwah. loc.cit. 30The camil al-sadaqah is the zakat official who collects the tax and receives one part of it for himself. This has been illustrated by the Qu,Jan. Al-Qu.,.Jan 9:60. 223 he may collect them when the latter has voluntarily declared them31 However, in this matter perhaps it is the duty of the tax official because he should know of any payment made to him. The punishment should be based on the man's evidence and if he claims to be paying it in secret, his statement should be accepted32 In the case of a jurist (faqt:h) and a preacher found applying the revealed law without having the requisite ability, and when the public might be misled by their wrong interpretation (saJ ta?wrl) or misleading opinion (sa? jawab), the mui:J,tasib must denounce them33 If he is in doubt of the person's legal ability, he cannot denounce him, but must hold an inquiry. Al-Mawardl then cites the case of cAli ibn Abi 'falib (d. 40) who interrupted al-Ijasan al-Bari (d. 110) while the latter was speaking in public because he wanted to test him. He then asked him what the foundation of the religion and the cause for its destruction. Al-ijasan replied that the first is piety (warac) and the second is greed (tamac). cAli then allowed him to continue with his speech34. The same is the case with a student who introduces a view which is in contrast to the unanimous 31A1-Mawardi, Al]kiim. p. 113 (Chapter Twelwe on the jurisdiction of the tax officials (wilayat al-adaqah)). 32AI-Mawardr, Al}kiim. p. 248. 33AI-MawardL Ibid. Ibn al-Farra>,Aqkiim. p. 276.Amedroz,JRASp. 88. Ibnal-Ukhuwwah omits this. Ibn al-Ukhuwwah, Maciilim. p. 29.
neither Ibn al-Farra> nor Ibn al-Ukhuwwah mention this story. Al-Mawardi, Al}kiim. pp. 248-9. 224 decision of the jurists (ijmac), or which is against the revealed law (al-na), or where his opinion is rejected by the contemporary scholars. In these circumstances, the mul}tasib should reprove and the student should either repent, or if not, the case will be brought to the Caliph. This is because it is the duty of the caliph to purify the religion35 Likewise, the mul}tasib should denounce some of the interpreters of the Qu,.Jan who may delude men from the clear revelations and lead them to secret heresy or when transmitters of traditions deal exclusively with those of no authority who are repugnant to the mind or corruptive to sound exegesis. However, the mul}tasib can denounce such acts only if he is able to distinguish between the right and the wrong. This can be achieved in two ways, either by the muljtasib's own learning and his personal reasoning (ijtihiid) to elucidate the matter, or by the fact that the jurists of the time have agreed in declaring it as heresy. Thus, the mul]tasib can denounce such acts by depending upon the opinion of the jurists, and prohibit them based on their agreement36 However, according to Ibn al-Ukhuwwah the situation is very perilous (khatar c a ~ f m for an ignorant mul]tasib to indulge in these matters, for he might create more harm than good. It is for this reason that it has been said "An ordinary man may not carry out the 35AI-Mawardi. Ibid. Ibn al-Farra), Al]kiim. p. 277. Ibn al-Ukhuwwah, Maciilim. p. 29. 36AI-Mawardi. loc.cit Ibn al-Farra). loc.cit. 225 duty of l}isbah, except in an obvious case". Thus, if the case requires a personal reasoning (ijtihad), the ignorant person is therefore, prohibited37 5.2. Immoral behaviour The prohibited act is defined as an action for which a person who practises it will be punished and in contrast he will be rewarded for abstaining from it. These acts are also considered the same as l}aram (forbidden acts) and they are in contrast to mubal} (permissible acts). In discussing the matter, al-Maward1 refers to as those acts to which the mul}tasib must deter the public from exposing themselves. He then refers to the tradition of the Prophet which said, "Abandon what occasions doubt for certainty"38 Al-Ghazal! defines as all kinds of wrongful acts which are forbidden by law and he maintains that it is more severe than the makruh (abominable acts). Thus, in the latter situation, the mul}tasib is not required to denounce it on a compulsory basis and to keep silence about it is not prohibited either39. 37Ibn al-Ukhuwwah, Maciilim. pp. 29-30.
Levey. Ibid. 50Mrican tea tree. Elias. p. 466. According to Martin Levey it was syrup oflycium. Martin Levey. Ibid. 51Shfr khashak. Martin Levey. loc.cit. 52A type of plant which resembles an ox-tongue. Ibn Lisan al-e Arab. vol. 17, p. 272. See also Graziani, Medical. pp. 208-9. 255 Names of the syrups sharab amlaj (syrup of emblic myrobalan)53 sharab ibrfsam (?)54 These syrups vary in character according to their purposes. Each is composed of julep (julab) with juice of the fruit (maJ {akihah) from which it takes its name or extract of the flower (ma! zahr), or what it includes of herbs or drugs. The julep is not the required ingredient for medicine. It is only used as a medium (wasflah) for administering the fruit-juice, flower-water or drugs. The function of the julep is to convert the syrup to sweetness (/}alawah) which makes the taking of it more pleasant and its acceptance is quicker55. The medicine must not be prepared to be used in pastilles, electuaries and medicinal powder (safa{at )56 until they had been inspected by a person who is well known for his experience and training in dealing with them. Beside that, the person is also required to have a good personality 53Amlaj, emblic myrobalan. Martin Levey, Al-Kindi. p. 235. 54Perhaps it was barsfm or birsfm, the round or kidney shaped reddish seed of barsfm baladi (indigenous barsim) which is sold in the bazaars of Cairo as fortifiant and tonic. Maimonides, Glossary. p. 243. See under Qurt. 55Ibn al-Ukhuwwah, Macidim. p. 117.
~ a n n a : taranjubin in Persian means "honey of the dew" which may be found on a variety of plants. It is that which is called manna (mann) and one also calls it rizq ("provision"). Maimonides, Glossary. pp. 275-6. Graziani, Medical. p. 220. 259 condition, the mixture (mizaj) is deficient of sugar, and it is much sweeter and moist66 Shfr khushk61 is of two kinds and brought from Khurasan. Its good variety is white, light in weight and has a "true" sweetness. When a small amount of it has been put on the tongue, its taste is very cool. The other is known as bfrakhshak68, which is white in colour, but is darker than the first. When some of it has been put on the tongue, it has only a slight sweet taste. Only a small amount of it can be sieved out (nakhala)69, and it leaves lots of dregs which look like gum (amgh). Sometimes it has been adulterated with a substance known as fanfdh 10, and the pure can be recognized as having a leaf from its tree and a shell (qashr). These are not to be found in the adulterated. Sometimes it had been sprinkled with a flour of l}awwarr11, when it becomes emaciated (curira). This should be tested by putting it on a white cloth (khirqah) between two hands, and the flour of an adulterated substance will then remain in the cloth, or to break 66Ibn al-Ukhuwwah, Maciilim. p. 119. 67Type of taranjubin (manna) called by the Persian "siracost" or dry milk. Maimonides, Glossary. p. 276. 68In another reading ofibn al-Ukhuwwah it was shir khushk. Ibn al-Ukhuwwah, Macalim. p. 119. 69perhaps the correct reading is nakhala (to sieve out) not (nal}ala) to be emaciated. Ibn al-Ukhuwwah. Ibid. 1Fanidh, a sugar candy or sweetmeat. Al-Kindi employs sugar candy as a vehicle for simples in an electuary for a cough from catarrh. Martin Levey, Al-Kindi. p. 312. 71Ifawari, a white farina without the bran. Martin Levey, Al-Kindi. p. 263. 260 it into pieces, and if the inside (dakhil) and the rest (}Jaul) are the same then it is good, if not, it is adulterated. This is obvious to an expert72. As for cassia fistula (khiyar shanbar) 73, the sale of new flakes (fulas) must be forbidden as being harmful. It should be matured and be from three to ten years old and the same is applied to its honey74. With regard to sharab fuqqac75, it is of two kinds, kha variety) and kharijf (foreign variety). The kha is made of sugar (sukkar), pomegranate seed, aromatic spices (a{awfh) and perfume Ctrb), and it is known as aqsima ("the portion"). The khariji is made of qa"arat az-cal76 Calamus aromaticus (casal al-qaab) and mursal should be used in preparing them. Therefore, the makers of this kind of syrup should be compelled to use for every jug (kuz) of the kha variety with one uqi'yah 77 of sugar (sukkar), a quarter uqi'yah of pomegranate seeds and 72Ibn al-Ukhuwwah, Maciilim. pp. 119-120. 73 A well known kind of tree, resembling a peach-tree and have a yellow flower, which is an Arabized Persian word. Lane. 1:831 74Ibn al-Ukhuwwah, Maciilim. p. 120. 76 A kind of syrup made of barley (shacir) or fruits. Munjid. pp. 540-1. 76Regarding the qattarah, according to Ibn al-Ukhuwwah some of the cooks (tabbak}J.) have adulterated muhallabiyat (a halwa made of rice flour, milk and sugar) with a calamus aromaticus al-qaab) and said to the customer that it was a qattarah. Ibn al-Ukhuwwah,Maciilim chapter 18, p.107. In al-Shayzan, someofthe halwa-makershavemixed the honey with a calamus aromaticus faal a-qaab), which they called qa{tlirah. Al-Shayzan, Nihiiyah. p. 40. 77 An Egyptian weight equals to 37 .44g. Hans Wehr. p. 34. 261 perfume. The mixture C4arfbah) of the kharijfis that for every one hundred jug, one-third and eight ratl18 of Egyptian weight of the qattarah, together with aromatic spices and perfumes must be added79 Barley-water (maJ sha0fr) should not be prepared expect in warm condition (/}arr ), that is to take clean barley and to sieve (thufl) it, then to crush and boil it into the fire. The substance will then be left to cool down. Then it should be purified and 0asal qa"arah, aromatic spices, perfumes and rue (sadhab )80 are added to it. It is said that these substances are good to regain health and digest the food81. In the prepation of the syrups, the mul}lasib should compel the syrup makers to have beside them a fly-wisk to chase away flies because they would contaminate the jug and water container (wi0aJ). This is because someone might take a sip m a ~ ~ ) in that contaminated jug and it would cause him to be nauseated82. 78 An Egyptian weight equals to 449.28g. Hans Wehr. p. 345. 79Jbn al-Ukhuwwah, Maciilim. pp. 120-1. 80Perhaps the correct reading is sadhab not sadiib. Ibn al-Ukhuwwah, Maciilim. p. 121. 81Ibn al-Ukhuwwah, Maciilim. p. 120. 82Ibn al-Ukhuwwah, Maciilim. p. 121. 262 The mul}tasib should compel the syrup makers to wash their containers everyday. He should also require them to cover the containers and clean them with a rough palm-fibre (khashn al-lay/) from the inside of the jug before filling it with syrups. The same is to be done to the containers of the barley-water83. The mul}tasib must inspect the syrup makers of their receptacles (qirab) for their syrups of rose (wardf), nenuphar (laynil{ar) and rose-water (julab). When the mul}tasib finds that their receptacles had became soil with grease (zacfran), he should warn the person concerned and compel him to wash them84 The syrup makers should shut their shops during the night with a gate to be made of cane or palm branches (jarid) in order to keep out the dogs. The same is applied to the containers, when grown old and smelling, the mul}tasib should order them not to use it and to change its tin (qadfr) for every three months and to evaporate it before refilling. All these must be inspected by the mul}tasib85 83Ibid.
are two suggestions, thamar hindr (Martin Lvey and Graziani) and tamr hindc (Maimonides). Both are referring to tamarind Tamarindus indica L.. Leguminous plants indigenous to India. Maimonides calls the tree al-IJumar and the fruit. Tamarind yields a very astringent substance prescribed for chest complaints, acute fever etc, and also used as a laxative and mouthwash. Maimonides, Glossary. pp. 271-2. Martin Levey,Al-Kindi. p. 251. Graziani, Medical. p. 220. 95Qust; costus. According to Maimonides it is al-bustaj, which is derived from the Persian bustak, meaning "incense". In the account of Meyerhof, the aromatic odour of the costus reminds one of the carnation. It is used in fumigation and as an expectorant and antiasthmatic. Martin Levey, Al-Kindi. p. 316. Maimonides, Glossary. pp. 236-7. Lane. 2:2523. Munjid. p. 628. 96Rasin; elecampane which had been prescribed since Dioscorides for the stomach. Maimonides says it is the ginger of Syria (zanjabcl shame). According to Meyerhof, this drug is the thick and fleshy underground portion of the stem, not the root, as Ducros claims.It is aromatic, tonic and stimulant. In Egypt, the druggists sell the dried, brown and wrinkled stem under the name cirq al-janah. Martin Levey,Al-Kindi. p. 270. Maimonides, Glossary. pp. 248-9. Lane. 1:1086. 97Ibn al-Ukhuwwah, Maciilim. p. 122. 98 A kind of down that covers flowers of a plant (baracim nabat) when they first appear especially that of grapevine. The Arabs and the Indians used this kind of down from date palm to make fabrics. Munjid. p. 299. 266 adulterated it with colocasia (qulqiis)100 The adulteration can be known by putting the substance into the mouth, where the person will become nauseous (ghatha) and it stings (l}araqa)101 Opium (afyun)102 which is a soporific (marqad)103 is usually adulterated with plain pounded herbs (baqalaJ yabis madquq). Some say that lentils (cadas) were used instead of that. It is made from the juice of a black Egyptian poppy (caarat khashkhash as wad misrf). The best of its kind must be thick (katht:f), sedative (razfn) and bitter (murr) with a very strong smell which can be easily dissolved (sahl inl}ilal) in hot water and softens (hashsha) in the heat of the sun. It is white inclining toward slight redness and its taste has a certain bitterness (mararah) and astringency 99Sunbul; nard, which is of many kinds, namely the Greek, Indian etc. The word nard is derived from the Sanskrit nalada meaning "fragrant". According to Meyerhof, in Egypt the ear of the true Celtic nard is rarely sold in the bazaars. More frequently sold is the "rhizome" of the Indian nard, which is the Valerianaceous plant, an Indian drug originating from the mountain of Nepal. It is used for epilepsy, convulsion etc. Martin Levey, Al-Kindi. pp. 286-7. Maimonides, Glossary. pp. 177-8. Lane. 1:1440. 100The colocasia or arum colocasia; the root of a plant which is eaten and used medically. The word qulqas has not been mentioned by Kindi or Maimonides, only the Tuljfat al-Aljbab gives synonyms as irni and luf(arum). It is used to destroy nasal polyps, to cause abortion, and is good for convulsion, coughs and gout. Martin Levey,Al-Kindi. p. 331. See Maimonides (la{), Glossary. pp. 145-6. Lane. 2:2560. Hans Wehr. p. 787. 101Ibn al-Ukhuwwah, Maciilim. p. 123. 102 Afyan; opium is the milky exudation of the poppy obtained by incising the unripe capsules of the family Papaveracoea when approaching maturity. The juice is allowed to harden overnight, then is scraped into a receiver. It turns greyish in colour, tough like plastic when fresh and it hardens by age. It has a strong characteristic odour, bitter taste and is a narcotic. According to Maimonides some people call it al-marqad instead of al-murqid "the soporific". Graziani, Medical. p. 193. Maimonides, Glossary (Ufiyun). p. 26. 103 An opium which is lulling and soporific. Munjid. p. 274. Hava. p. 265. 267 (qabcj). It is easy to dissolve (/;JaZZ) and purified. The adulterated substance can be known when there are dregs (thufl) remaining in it. It is adulterated with mamt:thah 104, wild milk of lettuce (la ban khass105 barrt:) and gum (amgh)106 What is adulterated with gum becomes very sparkling and pure107. The druggists also have adulterated blue bdellium (muql azraq)108 with strong gum (amgh qawt:). This can be distinguished because the Indian variety has a certain strong pure smell (raJihah tahirah)109 Some of them have adulterated luban bark with that of pine (anawbar)110 This can be tested and distinguished by throwing it in the fire, when it 104Mamfthah: Horned poppy or corn poppy; Ibn Jazlah describes it as yellow to black with fragrant odour and bitter taste. Tu};fat al-AJ;bab states that it is a juice extracted from a medicinal plant of good odour, bitter in taste, and having a colour between yellow and red. Martin Levey, Al-Kindi. p. 332. Graziani, Medical. p. 209. 105See khass or khash (lettuce). Martin Levey, Early. p. 65. 106See previous note. 107Ibn al-Ukhuwwah, Maciilim. p. 123. 108 According to Abu ijan1fah al-D1nawan, muql is a type of gum arabic and its tree is known as kar. Abu I;;Ianrfah al-Drnawan, Book of Plants. p. 89. Maimonides states that muql is applied to the resin of this type of tree (kar) and there are Indian, Arabic and Sicilian. The resin is calls muql azraq ("blue bdellium") and muql Yahad ("Jewish bdellium"). One sells both types in the bazzar of Cairo under the name fiamigh muql. They are used against coughing, snake bites, haemorrhoirds and for the purification of the uterus, etc. Maimonides, Glossary. pp. 158-9. Martin Levey, Al-Kindi. p. 336. 109In another version of Ibn al-Ukhuwwah this can be translated as by means of evaporation (tabkhcr). Ibn al-Ukhuwwah, Maciilim. p. 123. 110There are two types, male and female. The male has no fruits and the female is of two types; one produces large seeds, the other small seeds. The small seeds are those which are called qadm Quraish and kirkir and brtus (pitys). Apart from being prescribed as a remedy for all sorts of illnesses, the pine (anawbar) was used for its resin in fumigation. Maimonides, Glossary. p. 216. Martin Levey, Al-Kindi. p. 299. 268 bums, if it exhales a pleasant odour (fal;a), it is unadulterated if not, it is adulterated111 Some of them have adulterated hairy saffron (al-zacfaran al-shacrf)112 with chicken or cow flesh after it had been boiled in water, then sprinkled it with salt, dried it out and mixed them together. The sign of its adulteration is to take out some of the substance and soak it in a vinegar, if it becomes agitated (taqallutj)113 then it is adulterated, and vice versa. They have adulterated ground wheat (matlJ-ii,n)114 with saffiower or coarsely crushed grain (jarish)115 The adulteration is obvious by dissolving some of the mixture and putting it in a piece of cloth (khirqah), whereby some of the mixture which does not descend will remain in there. The test can be made by taking some of the saffron and dissolving it in water, whereby the adulterated substance will sink116. 111Ibn al-Ukhuwwah, Maciilim. p. 123. 112zacfaran; saffron. According to Maimonides, it is also known as al-jadr and kurkum. The saffron was a precious material and consequently subjected to falsification. The deep orange colour of a dried stigma of saffron is used as a stimulant in medicine. Saffron yellow or other colour substances were used in alchemy. Also the dried red stigmas is used as a colouring agent in medicine. Graziani. Medical. p. 222. Maimonides, Glossary. p. 97. Martin Levey,Al-Kindi. pp. 275-6. agitated by tendency to vomit, synonym toghatha. Lane. 2:2559. Hava. p. 624. 114which had been finely ground and fit to eat. Lane. 2:1832. 115Hava. p. 85. Munjid. p. 87. 116Ibn al-Ukhuwwah, Maciilim. pp. 123-4. 269 Some of the druggists have adulterated musk (misk)117 with Turkish rhubarb (rawand turkf)118 or "dragon blood" (dam al-akhawayn)119 and ramik 120 al-qatir121 placed 1n musk-pod (ntl{ijah). The adulteration can be distinguised by crushing (sa}Jaqa) them in the rose water (ma wardf), whereby the water will turn to red and the Turkish rhubarb will float in the surface of the rose water because it is a wood (khashab). When crushed, an unadulterated musk will have strong 117Musk is the dried secretion from the preputia! follicles of the musk deer, Moschus moschiferus. The musk deer is a small animal which inhabits a large area in Central Asia. The male animal, which alone produces the musk, bears on its belly, a small sac produced by an infolding of the skin. This sac is the musk sac or musk pod, and it contains a soft, unctuous, brownish substance, musk, which is remarkable for its intense, penetrating and persistent odour. The animals are snared or shot, and the musk pods cut out trimmed and dried; they are then wrapped singly in paper and packed about twenty-five together in a small rectangular box covered with silk; this box is known as a "caddy". Most of the musk is obtained from Tibet and Chinese provinces of Szechuen and Yunan. The musk pods are examined by probing them with a knife and classified them into piles. Musk is liable to gross adulteration. The pods are skiffully opened, part of the musk is removed and replaced by some worthless substitute. Inorganic substances, such as small stones, leaden shot, etc are easily detected. Dried blood would yeild a red ash, whereas the ash of genuine musk is whitish. Resin and other substances in soluble spirit would be recognised by the increase in the alcoholic extract. Henry G. Greenish. Textbook of Materia Medica. London 1909. pp. 607610. See Martin Levey, Al Kindf. pp. 310-11. Graziani, Medical. p. 210. 118Rawand; rhubarb, see also manj; rhubarb. Manj is a Persian word. Rhubarb is grown in China, Turkey, Russia, and parts of India and Tibet. Martin Levey, Al-Kindr. p. 337. Graziani, Medical. p. 214. However, according to Greenish, the term of Turkey and East Indian rhubarb indicate nothing more than the routes by which the drug formerly found its way to the European market. He added that the drug was collected in Tibet and China. Henry G. Greenish, Materia Medica. pp. 415-7. 119Dam al-akhawayn; a resin from various plants of the lily family. Maimonides gives other names such as qatir "the distilled". This resin brought from Malacca, Indochina and Somaliland, is still used today in powder form as a hemostatic and cicatrizing agent in Egypt. Martin Levey, Al-Kindi. p. 268. 120An electuary of gallnut with aromatic drugs. According to Ibn Jabir, ramik consists of gallnut, unripe dates, bark of pomegranate, musk and others. In the Tul],fat al-Aljbab, ramik is considered to be a confection composed of gallnut, such aromatic drugs as mastic, benjamin and others. Martin Levey, Al-Kindi. p. 270. 121Qa,ir is a term used by Maimonides to designate dragon blood (dam al-akhawayn). Maimonides, Glossary. pp. 7 4-5. 270 odour and percolate (rasha}Ja). Another method of the adulteration of musk is when the musk-pod (ntifijah) is made of bark (qushur) of amlaj122 and Indian (hind[) shrtaraj123 with stidarwan 124. Then they knead the mixture with water and pine gum resin (amigh anawbar), and they produce the musk from this and other similar substances. They collect the musk-pod (ntifijah) from this and they cover the top of it with gums, then dry it out in the oven (tannar). Signs of adulteration of all kinds of musk-pods can be recognized by opening and striking (lathama) them like mutal}assa125 If it appears to have a certain sharpness (l}iddah) like fire, then it is of an outstanding quality (fal}l)126 and free from adulterated substances like blood and others. If it is the opposite, then it is adulterated. In order to distinguish the adulteration of all kinds of musk, it is necessary to put some of it in your mouth, then to spit (tafala) it on a white shirt and to shake it off. If after the shaking, the shirt does not change its colour, 122Emblic myrobalan, fruit of Phyllanthus emblica L. Al-Kindi uses emblic myrobalan in musk recipes. The drug is originally imported from China and India. Martin Levey, Al-Kindi. p. 235. 123Shftaraj or sftaraj; pepperwort or rose-coloured leadwort. This must not be confused with shah{iraj. The plant is indigenous to Java, Ceylon and India. Martin Levey, Al-Kindi. pp. 296-7. The Tul}fat al-A]Jbab calls it the gum of an old oak, and gives a synonym as al-sindiyan. Al-Kindi uses it in drug for canker, looseness of the gum and for a fistula. M. Levey, Al-Kindi. pp. 278-9. According to Maimonides it is a kind of cherry and also known as sarasiya and l]ubb al-mulak (seed of the kings). Others say sadurwan or siyah dawaran is a gum which furnished a black colouring material. Maimonides, Glossary. pp. 263-4. 12f>uncertain; perhaps it is to dig (l],asiya syn. il],tafara) or to put something to test (ljasiya syn. ikhtabara). Munjid. p. 134. However, al-Shayzari reads it as al-mutal]aththa (i.e. to scatter). Al-Shayzali, Nihiiyah. p. 48. Ibn al-Ukhuwwah, Macalim. p. 124. 126fa!J.l; of an outstanding quality. Lane. 2:2345-6. Hava. p. 549. Munjid. pp. 570-1. 271 then it is unadulterated either by blood or the like and vice versa. Some of the druggists have ground the musk together with gazelle blood and gather it in the animal's guts Others have adulterated it with burnt bread and others with burnt liver (kubud)127 As for Damascus rose-water (al-ma ward al-dimashqi), the druggists have adulterated it by applying a small amount of water with ten ra'l of and shabbl.29 pulp (shal}m) until it is given an astrigence (u{uah) and bitterness (martirah). The adulteration can be distinguished by taste130. Ambergris (0anbar)131 paste (macjun) is adulterated by adding wax (shame) to it. The adulteration can be determined by heating a large neddle 127AI-Shayzan, Nihayah. pp. 49-50. Ibn al-Ukhuwwah, Ma0alim. pp. 124-5. 128lfantal; colocynth (citrullus colocynthis). A type of plant which grows on the ground and its fruit resembles water melon, but much smaller. It is used in medicine and has a bitter taste. Martin Levey, Al-Kindi. p. 315. Munjid. p. 158. Hans Wehr. p. 210. 129Shabb; alum, a kind of tree with a bitter taste and a certain well known medicine. Lane. 2:1493. Martin Levey, Al-Kindi. pp. 291-2. 130Ibn al-Ukhuwwah, Ma0alim. p. 125. 131 Amber should be distinguished from ambergris. The former is a hard clear yellowish-brown gum used for making ornaments or jewellery. It is the fosil resin of certain extinct Coniferous trees. While the latter is a wax-like substance present in the intestines of sperm-whales used as a fixative in perfumery. Gray, Pharmacology. pp. 232-4. Grennish, Materia Medica. pp. 522-3. See also Graziani, Medical. p. 194 (canbar: Amber). Martin Levey, Al-Kindi. p. 307 (canbar andalanf: Ambergris of the apothecaries). cAnbar: ambergris. Hava. p. 503. cAnbar: ambergris; a certain odoriferious substance, an excrement found in the belly of a certain great fish. Lane. 2:2168. 272 (misallah) and piercing (shakk) it into a bead (kharzah)132 of the ambergris, if it flows (sal) over the large neddle, then it is a wax, but if the bead breaks (inkasara) and a green herbage (cushb) became apparent, then it is ambergris. The druggists also have adulterated the ambergris with a substance called listin 11ubb al-cufJfilr133 The adulteration can be known by putting it into a fire, where the listin al-cu{flr will become hardened (taalaba). It can also be known by putting it into water, if it becomes emaciated (na!Jala) then it is listin cufifilr134 Some of the druggists have adulterated zubdah 135 with ma1Jlul136 The adulteration can be known because those with will become solid and only a pure civet will produce a delicate substance in one's hand with such a strong odour137. 132There are two other optional readings and both are rather inaccurate; jazrah: blood sacrifice, and l]irzah: amulet. Ibn al-Ukhuwwah, Macalim. p. 125. 133Lisan al-cu{ftr; a type of plant called honey-wort. Hava. p. 685. al-Ukhuwwah, Macalim. p. 125. 135Perhaps the correct term is zabad meaning civet. Civet is secreted by the civet cat, in folicles near the anus. Its smell is unpleasant unless diluted and is used in perfumery to augment the smell of other substances. Al-Shayzari also uses the term zabad. Al-Shayzari, Nihayah. p. 51. Hans Wehr. p. 372. Gray. Pharmacology. p. 233. Hava. p. 283. 13E>uncertain. Perhaps it is similar to 'fUfr al-tayyib and 'fUfr al-cifr!t which are an odoriferous substance added to insence (unguis odoratus). Lane. 2:1913. Hava. p. 446. 137Ibn al-Ukhuwwah, Macalim. p. 125. 273 Preserved (murabbti) halflaj138 is adulterated by putting it in a bright green watermelon (baUfkh)139 for one day. When this has become tender, honey (casal na/;J,l) and pulp (rubb) of carob (kharrilb) are added to it. The adulteration can be known by taste and colour because normally it has a black colour and abundance (ci'zar) of fleshy substance. As for the adulterated substance the fleshy substance is scarce and the colour changes, also it has a strong taste140. As for ambergris (canbar), some of the druggists have produce it from a brownish liquor of the cuttle fish (zubd al-bal}r)141, a black gum (r;amigh aswad)142, a white wax (shamac abyaq), a sandarach (sandarils)143, an aloe-wood (cad) and a nard (sunbul)144 It may be produced on its own or to mix it with other similar substances as a 138Halrlaj; Black or kabul chebulic myrobalan. Probably Terminalia chebula Retz or T. citrina Roxb. It is generally used as a purgative. The Persians call it halilah siyah, in Arabic it is sometimes ahlrlaj aswad. The tree is indigenous to India. Maimonides gives the Indian synonym as harsar. Martin Levey, Al-Kindi. p. 342. 139See battrkh a}Jqar ("green melon") called by the Egyptian which is of several species. Maimonides, Glossary. pp. 41, 76. See Martin Levey, Al-Kindi. pp. 314-5. 140Ibn al-Ukhuwwah, Macalim. pp. 125-6. 141This also signifies a cuttle fish bone, jellyfish and others. The Arabic name meaning "ecumen of the sea" may refer to many different things. Martin Levey, Al-Kindi. p. 272. Glossary. p. 186. Martin Levey, Al-Kindi. p. 234. 143Sandarils; the sandarach of Callitris quadrivalvis, indigenous to northwest Africa is a resin exuding from the stems. It is used today as insence and as a remedy for diarrhea in Morocco and Egypt. Martin Levey, Al-Kindi. p. 287. 144Sunbul; nard. sunbul al-,rb; Indian nard. Martin Levey, Al-Kindi. pp. 286-7. 274 fraudulent substitues. It should be mentioned here that according to al-Shayzari, the adulteration can be known by heating the ambergris which will produce a certain distinct smell145. Meanwhile, Ibn al-Ukhuwwah suggests three kinds of tests; by piercing a hot neddle into it, by putting it in water and by smelling it146. Some of the druggists have adulterated Indian aloe-wood (cad hindf), by using a sandalwood (andal)141 instead. First they let it cool down until it looks similar to the Indian aloe-wood, then they soak (naqaca) it in a cooked old grape vine (karm)148, put some perfume on it (rawwal}a) and mix it with the Indian aloe-wood. The adulteration can be known by throwing them in a fire, where the smell of the sandalwood will be obvious. Some of the druggists produce the aloe-wood from a certain bark of wood, which is called al-iblfn 149 by soaking it in rose water prepared with musk 145 Al-Shayzari, Nihiiyah. p. 51. 146Ibn al-Ukhuwwah, Maciilim. p. 125. 147In India, for centuries sandalwood has been prescribed by Vytians in remittent fever and gonorrhea. The white sandalwood grows in Sumatra, Siam and Malacca. The sandalwood of the eastern islands is inferior to that ofMalabar. In India, the Arabs place sandalwood among their cardiaca. Al-Kindi employs sandalwood in many types of perfumery operations. In modem Egypt, the white sandalwood is used as an aromatic for gonorrhea. Martin Levey, Al-Kindi. pp. 298-9. Levey, Al-Kindi. p. 326. Maimonides, Glossary. pp. 211-213. 14Sunknown. In another version of Ibn al-Ukhuwwah, al-iblfz has been suggested but it seems rather inappropriate because the word means a kind of clay used in medicine. Maimonides, Glossary. p. 122. Hava. p. 45. Munjid. p. 48. However, al-Shayzan has given another reading; al-iblfq: a kind of wood that has two colours, white and black. Al-Shayzari, Nihiiyah. p. 54. 275 and camphor (kafur)150 for one day. They then remove it from the mixtures, boil it and put some perfume on it. Similarly, some use a wood from an olive tree. The adulteration can be known by putting it in a fire and the result cannot be concealed151. As for camphor (kafur), some use a splinter (na}Jlitah) of kharratfn 152, while others knead the camphor with water of a white gum and evaporise them on a sieve (gharabfl). Some have used salt taken from stones of sal ammoniac (nushadir)153 by breaking it into small pieces and mixing it with the camphor. Some have employed a stone (nawan) of a date (balal;,) by crushing it until it looks like froth (zabad). Then they patterned the crushed date stone similar to the shape of the camphor by kneading it with camphor liquid and spreading it out thinly like camphor. Adulterations of the camphor, which have been mentioned and those which have not can be known by throwing them in the water, if the camphor sinks, then it is adulterated. If the camphor floats, then it is pure. The adulteration can also 15Ka(ar; Camphor. The tree is indigenous to China, Japan, Sumatra and Borneo. In Sanskrit it is called kappura, kaafur in Malay, and kupoor in Hindu. Ibn Masawaih considers camphor as one of the five most important aromas. Martin Levey, Al-Kindi. p. 321. Maimonides, Glossary. pp. 142-3. 151Ibn al-Ukhuwwah, Ma0alim. pp. 125-6. 152Kharra,rn: Turner. Lane. 1:723-4. Al-Shayzarr reads it as nakhalat rukham al-kharra'rn al-mudabbar (a sieved marble prepared by the turners). Al-Shayzari, Nihayah. p 51. Ibn al-Ukhuwwah, Ma0alim. p. 126. Levey, Al-Kindi. p. 341. Graziani, Medical. p. 212. According to Gray, sal ammoniac is a kind of neutral salt, manufactured by subliming the soot formed by burning camel's dung. Gray, Phannacology. p. 280. ---276 be known by putting some of it on a piece of cloth (khirqah), then putting it over a fire, where a pure camphor will disperse (tara) and does not remain firm (thabata). An adulterated one, however, will burn and turn to be sandy154. As for lapis lazuli (lazuward)155, if thrown in a fire, the pure one turns to be blue in colour and does not evaporate (acada). If adulterated, it will evaporate and burn. The adulteration is prepared by heating (mashwf) it up in a Moroccan glass (zujaj maghribf) with Indian indigo (nfl hindf) and soft limestone (jfr156 rukhamr157) at a moderate heat. However, the adulteration will become apparent in the fire158. 154Al-Shayzarr, Nihayah. p. 51. Ibn al-Ukhuwwah, Ma0alim. p. 126. 165Lazuward or lazaward; lapis lazuli. Ibn al-Baytar makes a distiction between lazuward and armaniya, where he said the former is a solid stone and the latter is the soft stone of Armenia. It is prescribed for pain in the bladder (mathanah), to remove warts (ma;alil), beautify eyelids (ash(ar) and to curl the hair. Ibn al-Baytar, Al-Jami0 li mufradat al adawiyyah wa al-aghziyyah. 2:360-1. See S. Frederick Gray. Pharmacology in general. London, 1824. p. 434. Hans Wehr. p. 852. 156Jrr; limestone. See nurah (quicklime). The lime or quicklime is a white substance obtained by heating limestone. Maimonides, Glossary. p. 175. Martin Levey, Al-Kindi. pp. 340-1. See Lane. 1:493. 157 Hava. p. 246. 168Ibn al-Ukhuwwah, Macalim. p. 127. 277 Scammony (mal;mudah)159 is adulterated with a milky juice of the latex plants (yuttac)160 Sometimes, vetch flour (al-kirsannah) is added. It is then kneaded in gum water and designed to resemble the figure of scammony. The best of its kind is delicate in colour like ghira161 What is adulterated with a milky juice of the latex plants becomes very sharp in taste and produces a white colour162 Wax (shame) is adulterated by many substances such as a coarse olive oil. Sometimes broad-bean (baqilla)163 flour and ground chick-pea (/;J,ummu) are added when the wax melts. The adulteration can be known by putting the substance in water, if it floats on the surface of the water, then it is pure. If the substance sinks in the water, then it is adulterated. What is adulterated with the course olive oil can be purified with ushniin 164 and water165. 169Perhaps the correct reading should be mal],madah, not maljamadah, as been used later on. Mal}madah; scammony is also known as saqamaniya designates a convolvulus that grows in oriental east of Mediteranean etc. The root is sold as a drastic purgative. The name mal],madah ("the commendable") is still in use in Egypt and it is probably related to the salutary effect of the drug. Maimonides, Glossary. pp. 187-8. 160Yuttac; latex plants which is of numerous kinds, all of which have in common the property of producing a milky juice (labaniyyah). The milky juice is viscous and very sour and burns the body on contact. Maimonides, Glossary. pp. 124-5. 161! have not been able to trace this term. 162Ibn al-Ukhuwwah, Macalim. p. 127. Levey, Al-Kindi. p. 240. 164Ushnan; plant ash or alkali plant. A mixture of sodium and potassium carbonates used for washing. Martin Levey, Al-Kindi. pp. 231-2. 278 Some of the druggists have adulterated the wax by covering the inside with a black wax known as verdigris (zanjtirf) or wax dirt (wasakh), and covering the top with a clear white wax, so that the purchaser will think that it is the characteristic of the whole wax. They also have adulterated the wax by covering it with a cotton when it is cheap and selling it as a true wax. Finally, al-Shayzari and Ibn al-Ukhuwwah point out that all of these are adulterations and fraudulent practises; and the mul]lasib must inspect them without neglecting (ihmiil) any of them166 6.3. The duty to supervise the physicians (atibbii}) According to Ibn al-Ukhuwwah, the physicians should know the structure (tarkfb) of the body, the temperament (maziij) of the organs, the diseases which occur in them; their causes (asbiib ), manifestations (acriiq) and symptoms (cazamat), the remedies which benefit them, the methods of procuring substitutes (ictiyacj,) for those remedies which are unobtainable and the means of extracting (istikhriij) them and the ways of treating diseases, so as to procure a balance (tasawf) between sickness and remedy in their chemical compositions (kimmiyiit) and the way to oppose the sickness with the properties of the remedy. The physicians who do not possess these qualities are unfit to have treatment of the sick entrusted to 165Ibn al-Ukhuwwah, Maciilim. p. 127. 166Ibid. 279 them and it is not permissible for them to undertake any treatment involving a risk. They also should not intervene in matters in which their knowledge is incompetence167. Ibn al-Ukhuwwah then quotes a tradition narrated by cAmr ibn Shucayb from his father and from his grandfather saying that the Prophet said; "A person who engages in medical practice without having adequate knowledge of the medicine is liable (cj,amin) for his injuries"168. Physicians must have a chief (muqaddam) of their own craft. It is said that the Greek kings (muluk al-Yunan) placed in every city a chief physician (l}akfm) who is renowned for his wisdom and before him were presented the other physicians in the city for him to examine. Anyone whose science he found defective he ordered him to devote himself to study and he forbade him from undertaking any medical treatment169 When the physician comes to visit a patient, he must inquire from him the cause of his sickness (maracj,) and the pain (alam) which he experiences. He must then prescribe (rataba) a regimen (qanan) for him of syrups and other compounds of drugs and should write a copy of it for the 167Ibn al-Ukhuwwah, Macalim. p. 166. 168Ibid. 169Ibn al-Ukhuwwah, Maciilim. pp. 166-7. 280 near relatives with the witness of those who are present with the patient. On the next day he should inquire into the progress of the disease, inspect the urine-flask (qararah) and ask the patient if the sickness has diminished or not. He should then prescribe in accordance with the requirements of the case and write a copy which he should give to the relatives. Similarly, he must treat the patient on the third day and the fourth until either the patient is healed or dies. If the patient recovers (bari)a) the physician should receive his fee (ujrah) and honorarium (karamah). If the patient dies, the nearest relatives should present themselves before the noted chief physician and lay before him the copies of the prescriptions which the physician wrote. If, in his opinion, they meet the requirements of science and the art of medicine without negligence (ta{rft) or fault (taqfr) on the physician's part, he should say, "This man's life was ended by the term of his allotted span (ajal)." But if he is of the opposite opinion, he should say, "Exact the blood-money for your kinsman from the physician, for it is he who slay him by his poor skill and negligence"170 In this way the mul:J,tasib should took precaution so that no one could engage in the practice of medicine who was unfit for it and no physician could be neglectful (tahawun)171. 170Ibn al-Ukhuwwah, Maciilim. p. 167. 171Ibid. 281 The mul}tasib must compel the physicians to take the oath of Hippocrates (Abqirat), causing them to swear that they will not administer a harmful medicament to anyone or compound (rakaba) a poison for anyone, or describe (waa{a) poisons to any member of the public. They also will pledge not to mention to any woman a medicament for procuring abortion of the embryo or to any man which will prevent procreation (nasl). They should cast down their glances from the women's quarters (ma}Jarim) when they come in to visit the sick and they should not disclose (fasha) any secret. The physicians should not tear apart (hataka) the patient's clothes (astar) or venture upon anything which has been forbidden to them172 172Ibid. 282 CHAPTER SEVEN The duty to administer the municipal control of the city 7.0. Introduction As we have mentioned earlier in Chapter One, the fourth aspect of supervision discussed by the work of Ya}J.ya ibn CUmar is a matter concerning the basic administration of the town. The cases involved are creating a door of a house situated in a narrow lane, ensuring cleanliness of the market, supervising ahl al-dhimmah and responsibility of a person who digs a pit1. We find this matter had been developed even further by later works of }Jisbah and the discussions include the duty of the mul}tasib to maintain the public utilities, settle disputes between neighbours and preserve law and order. 1 See pp. 73-4, 75-6. 283 7.1. The duty to maintain the public utilities According to al-Mawardi, the discussion on this matter can be found in cases of repairing the water supply (sharb)2, the city walls (sar), the mosques (masajid wa jawami0) and public buildings, as well as in the case of providing sustenance for needy wayfarers (banil al-sabfl). It is the duty of the mu/;J-tasib to look into these matters and where funds are needed he should draw the matter to the attention of the treasury. Failing this, he is entitled to raise the money from persons of substance (dhawil al-muknah) within the community, but not to place the responsibilty on any one of them. In this case, the mul}tasib is not required to obtain the permission of the ruler3 However, al-Maward1 raises an interesting point about the need to obtain permission from the ruler to demolish part of a building which is going to be rebuilt. Here, the ruler's permission seems to be necessary in order to secure the completion of the work. However, if the building belongs to a small community or tribe, al-Maward! maintains that such permission is immaterial4. 2Ibn al-Ukhuwwah's version is sarb, while al-Mawardr and Ibn al-Farra> refer to it as sharb. See al-Mawardi, Al]kiim. p. 245. Ibn al-Farra>, Al]kiim. p. 273. Ibn al-Ukhuwwah, Maciilim. p. 26. 3Al-Mawardi,A.l]kam. pp. 245-6. Ibn al-Farra>.loc.cit. Ibn al-Ukhuwwah,Maciilim. p. 26. 4Al-MawardL loc.cit. Ibn al-Farra>. loc.cit. However, Ibn al-Ukhuwwah does not mention this. 284 7.2. The duty to settle disputes between neighbours Al-Mawardi holds that this duty includes cases that involve encroachment on someone's boundary, or the privacy of one's house and erecting beams (ajdhac) beyond one's outside walls. In these matters, the mul}tasib can denounce them when a complaint is made to him by the neighbour. Here, the mu!J,tasib may order the offender to remove the things c_omplained of and in certain circumstances punish him. However, if there is a dispute, the case should be decided by the legal authorities. In a case where the neighbour allowed such encroachment, but then changes his mind before the construction has begun and complains to the mul:J,tasib, his complaint will be accepted and the disputed construction will not be built. However, if the work has already begun with the consent of the neighbour who then disagrees, the mul:J,tasib cannot compel the second person to cease his work. In a case when branches of a tree extend to the house of a neighbour, the neighbour can make a complaint to the mul:J,tasib, so that the owner will be compelled to cut them down, but he must not be punished because it is not his fault. If it is the roots of the tree which are entering the neighbour's ground, the owner cannot be compelled to remove them and the neighbour cannot be prevented from digging them up. Likewise in the case of smoke coming from an oven which irritates the neighbour, it shall not be prohibited. The same goes for inconveniences caused by mills, or 285 blacksmith's and fullers' shops, because these are legitimate occupations and that the owners are allowed to do what they wish with their property5 7.3. The duty to preserve law and order According to al-Mawardi, in order to maintain law and order the mul}tasib may be involved in cases of maintenance for relatives and children, attempt to postpone settling debts without excuse6, acceptance of legacies (watiya) and deposits (wada)ic) of property, marriage of a thayyib1, the law of divorce concerning the waiting period, the law of maintenance involving the case of reluctant father, and care towards slaves, animals, foundlings and stray animals, overlooking someone's houses, ahl al-dhimmah, rules in the market place and street, removal of corpses and supervision of the masters of ship and the teachers8 It should be noted that the w ~ y is defined as the change of ownership of a property or a right after death by the act of endowment (tabarruc). It should be differentiated from that of hibah, for the latter is a 5 Al-Mawardi, Al].kam. p. 255. 6It is wrong for someone who is rich and able to delay the payment of debt. Wahbah. 5:462-3. 7Thayyib, a woman who is not virgin. Wahbah. 7: 210-211. 8 Al-Maward1, Al]kiim. pp. 245-6. Ibn al-Farra>, Al]kiim. p. 273. Ibn al-Ukhuwwah, Maciilim. pp. 26-7. 286 gift during lifetime. The only essential requirement (rukn) for making the contract of legacy (waiyyah) is the offer (f}tib) of the legator. As for the acceptance (qubal) by the legatee (milti lahu), it is regarded as a condition (shart) to give the full effect of the legacy9 Meanwhile, the deposit (wadfah) is the commission given by the owner to another to hold his property in safe custody. It is a fiduciary relationship (amanah)10 It should be noted that a Muslim is recommended to make a legacy before he dies11 However, the maximum amount allowed is one-third of the estate for it is better for him to leave his family wealthy rather than them asking from other people (i.e. begging)12. The jurists agree that there is no specific time required for the acceptance of the legacy by the legatee, but it should be concluded after the death of the legator. Some of the Shaficrs and the !Janbalis consider that the heir (warith) has a right to demand that the legatee signify either his acceptance or his refusal. The legacy becomes void if the legatee dies before the legator13 According to al-Mawardi, in the case of the acceptance of legacies and deposits of property (qabal waiiYii 9Wahbah. 4:86. M.H.Kamali, Principles ofislamic Jurisprudence. pp. 337-8 (rukn and shart). See Muslim, vol 2, pp. 63-69. Ibn Qudamah, al-Mughni. 6:414. Schacht Introduction. p. 173. 10Schacht, Introduction. p. 157. Ibn Qudamah, al-Mughni. 7:280. 11Al-Qur'an. 2:180. See also 2:240, 4:12.