Definition of Hisba & Muhtasib

The term hisbah refers to commanding what is good when it is being
neglected, and to forbidding what is bad if it is being practiced. Its roots are found in the Quran where it is mentioned “And so there must be from amongst you a group who call to the best and command the good and forbid what is bad” (Quran, 3:104). Hisba is a duty that applies in effect to every Muslim, and the person applying this duty is known as the muhtasib. Hisba and Muhtasib in Islam is one of important studies covered in this research study.

The Instated & Voluntary Muhtasibs

In practice, there are two types of muhtasibs. The first is the official muhtasib who is assigned to hold this duty by the state, and the second is any Muslim who voluntarily undertakes this application. Several differences apply between the instated and the voluntary muhtasib.[1]

To start with, the obligation of the muhtasib is by way of his appointment decided by the authorities, whereas the obligation on others is shared obligation incumbent on the community as a whole. Secondly, The muhatsib’s undertaking of the task is a necessary part of his appointment, which he is not allowed to transfer to another, whereas the undertaking of individuals is done voluntarily by way of a supererogatory action which they are permitted to pass on to others.[2]

In addition to this, the muhtasib’s post is set up so that people may have recourse to him concerning matters which must be discouraged, whereas the one who does it voluntarily does not occupy a post set up for recourse available to the public. Moreover, the muhtasib has to respond to people’s complaints, whereas those who voluntarily undertake the application of hisba are not forced to respond to people’s complaints. By and large, the muhatsib has to watch out for manifest incidents of evil, so that he may denounce them, and to investigate those acts of good behavior which have been abandoned, so that he may command that they be renewed, whereas the individuals who undertake hisba voluntarily who do it voluntarily do not have to search for or investigate these matters.[3]

It is also worth mentioning that the muhatsib has to have assistants to participate in denouncing evil, as he will be better able to do the task for which he has been appointed, if he is in stronger and more powerful position. On the other hand, in voluntary practice, assistance may not be sought.

The official muhtasib may also impose discretionary punishments in matters of manifest evil, as long as they do not surpass the limits of the hadd-punishments (punishments in shari’ah), but this capacity is not to be practiced by the voluntary muhtasib. The official muhtasib may be paid to for his practice of hisbah from the bait-al-mal(treasury),whereas voluntary practice may not be compensated. Finally, the official muhtasib may use his ijtihad) concerning matters regarding customary practice-but not matters of the shariah-such as layouts in the markets. Thus he affirms or rejects such matters in accordance with the results of his ijtihad, whereas the one who voluntarily undertakes the duty of hisbah is not entitled to engage in such ijtihad practice.[4]

In general, it is a duty of every Muslim who has the capacity to become a voluntary muhtasib. However, for this to take place, a number of conditions need to take place. First of all, the function of the voluntary muhtasib has to be fruitful and productive. Secondly, the voluntary muhtasib has to be secure and safe and should not jeopardize his life, health or property as a result of carrying out his functions. If the carrying out of the hisba is purposeless and could be harmful to the muhtasib, then the voluntary muhtasib is prohibited from conducting hisba. However, if the practice is purposeless but the individual is fearless, then it is preferable for him to act as muhtasib. The same applies when the muhtasib could get hurt as a result of carrying out his functions, but that in this case, the function will be productive. The only situation in which the hisba is obligatory on the Muslim is when there is an absolute ability to call for what is legally right and to prevent what is legally wrong from taking place.[5]

Conditions for the Muhtasib

For a man to be able to practice hisba, he has to fulfill several conditions. First of all, he must be a free man, just, of sound judgement, firm and severe in the observation of his religious duties, and clearly aware of what evil behavior is. The fuqaha (Shari’a scientists) from among the followers of ash-Shafi’i differ in two ways as to whether the muhtasib is to compel people to desist from an evil on which there is a disagreement.[6]

According to Abu Sa’id al-Istakhari, the muhtasib may compel others in conformity with his own ijtihad and judgement. Hence the muhtasib must be an ‘alim (knowledgeable person) from amongst the people who make ijtihad concerning legal rulings so that he may come to a decision regarding matters of controversy.

The second opinion holds that the muhtasib may not compel people to accept his ijtihad and judgement, because anyone may make his own ijtihad concerning disputable matters. Accordingly, it is permitted that the muhtasib
not be selected from among those who practice ijtihad, as long as he is aware of the evil acts on which there is consensus.

Because the official muhtasib held a very vital office for the Muslim community, he was asked to differentiate himself, and this was only a characteristic restricted to an official muhtasib who held his whip and a sign that distinguished him from other individuals in the markets or streets. Since the muhtasib acted as a prefect in the community, but with much more influence and authority, since he applied both the law and the religious commands, the muhtasib was always chosen from among the pious individuals who were not vulnerable to corruption or weakened by the attractions of authority. It was customary that official muhtasibs were chosen from among those who expressed the best moral standards and who had the capacity to stand to their beliefs and to insist on earning the satisfaction of God rather than individuals.[7]

The assignment of the muhtasib as an official of the state required the undertaking of an oath. The muhtasib had to pledge that he was going to respect the laws, to preserve the rights of the people, to prevent evil and wrong acts from taking place and  to accomplish his duty in the best possible manner.[8]

According to Al-Shaizari the muhtasib should inspect the markets in the early morning starting with all shops that sell foods to the public. He should then inspect the goods and products to protect people from cheating. He should then make sure that bread supplies are available in the market and that the weight of bread meets the legal criteria. Furthermore, he should inspect to goods offered for sale to make sure that they are not over-priced. He should then walk through the city to make sure that no violations have been committed, and that no fights or disputes have taken place. In case any violations are committed, the muhtasib should take the necessary measures to prevent them.[9]

The Function of Muhtasib vs the Judge

The practice of hisbah lies half way between the activity of the judiciary and that of the investigation of complaints and abuse. The office of hisba resembles the judiciary system in two ways. First, it is permitted to have recourse to the muhtasib who is allowed to listen to the complaint of someone against a third party in front of him with respect to individual claims in one of three situations. These three situations relate to cases of short measure and underweight; cheating and deceit regarding the object sold or the price; and delay and prevarication in payment of a debt which is due, when the debtor is in a position to pay. While the authority of the muhtasib extends to these three kinds of complaint, in other cases of manifest evil, his duty is eliminate the evil.

The second matter in common between the judiciary and the authority of hisba is that the muhtasib may compel the defendant to fulfil any obligation that falls within the authority of the muhtasib. Thus if a debt is due by the avowal and affirmation of the debtor himself, and whereas the the debtor can pay and has ample means, then the mutasib can force him to fulfill his duty towards the claimant, as any delay on his part is considered reprehensible. The task of the muhtasib in this case is to put an end to the delay in payment.

Yet, the office of the muhtasib differs from that of the judiciary in two main ways. First, the muhtasib is not able to entertain complaints of a general nature such as contracts, transactions and all other rights and claims which do not constitute reprehensible activities of a manifest kind. Hence, the muhtasib may not even start to consider such complaints, or to offer a judgment concerning them, irrespective of whether the amount involved is great or small, unless he has been given explicit authority over such matters which is over and above his nomination to the hisbah: if he has been given this extra authority, then he combines the roles of the judiciary and the hisbah,and in this case it must be ensured that he has the capacity to practice ijtihad. If the appointment of the muhtasib appointment is restricted to hisbah, then the qadis and judges are the authority entitled to
investigate matters involving both important and insignificant amounts of money disputed.

Secondly, the muhtasib is limited to dealing with rights and claims which have been acknowledged. If,however, denials and disputes have arisen between two parties, he may not investigate such cases. Rather, it is the judge who has to listen to the testimonies, and to have the parties swear on oath – whereas the muhtasib may not hear witnesses in order to establish a claim, or compel someone to swear on oath in order to reject this claim. [10]

Still, the office of the muhtasib involves more authority than that of the qadis and judges in two main ways. First, the muhtasib may investigate those matters in which he is commanding concerning the good or forbidding evil, even if the litigant seeking his help is not present – whereas the qadi may not involve himself like this unless the litigant is present from whom he may then hear his claim. If, however, the qadi does involve himself, then he excludes himself from the post to which he has been appointed, and infringes the basis of his authority. Secondly ,the muhtasib has to exercise the sovereignty of a government official, and so, he may have recourse to the haughtiness of the forces of order when dealing with reprehensible matters, whereas the judiciary may not. Hisba involves enforcement and any excessive behaviour on behalf of the muhtasib when exercising his sovereignty and severity is not regarded as an injustice or undue harshness. In contrast, the qadi is responsible to establish justice and
should rather act with gentleness and gravity.[11]

The Muhtasib and the Investigator of Complaints

The office of hisbah and the investigation of complaints share some similarities. First of all, their activities are based on intimidation applied with the force of authority and with energetic severity. And secondly, their activity may be concerned with matters of public interest and with seeing that manifest acts of wrong-doing are denounced. However, there are two main differences between the two authorities. Investigation in cases of complaint is instigated because of the incapacity of the qadis to deal with them whereas investigation in the realm of hisbah is instigated because the qadi disdain to do it; for this reason, the rank of investigator of complaints is perceived as higher than that of the muhtasib. The person in charge of grievances may make a signed order both to the qadi and to the muhtasib, while the Qadi may not make one to the person responsible for resolving grievances, but he may send such an order to the muhtasib who may not make one to either of them. Another difference is that the person responsible for grievances may pronounce judgements, while the person in charge of hisbah may not.[12]

Apparently, the office of the official muhtasib in the Muslim community was of a great importance. He was not only the representative of the state on matters that related to daily public interests and activities, but he also held the responsibility of making sure that communal transactions, business exchanges and order in general were protected and enhanced without disruption. The muhtasib was not a judge, nor was he a prefect or investigator of complaints. His authority and practice interrelated with these two other offices and systems, but at the same time, different significantly. The muhtasib’s position in the state hierarchy was flexible to the extent that prevented the burdening the qadis (judiciary authority) or the investigators of complaints and prefects (executive authority) with everyday matters that could be resolved independently by the muhtasib.

References

Al-Shahawi, Ibrahim Dsouki. Al-Hisba Fi Al-Islam. Egypt: Dar Al-Oruba.

Al-Shaizari, Abdul-Rahman Ibn Nasr. Nihayat Al-Rutba Fi Talab Al-Hisba.

Cairo: Mohammed Mustafa Ziada, 1946.

Lambton, Ann. State & Government in Medieval Islam. New York: Oxford

University Press, 1981.

Levy, Reuben. The Maalim Al-Qurba fi Ahkam Al-Hisba. London: Luzac & Co.,

[1] Ibrahim Dsouki Al-Shahawi. Al-Hisba fi Al-Islam, p.9.

[2] Ibid., p.20.

[3] Al-Shahawi, p.21.

[4] Alshawhi, p.20.

[5] Ibid., pp. 20-21.

[6] Al-Shahawi, p. 12.

[7] Al-Shahawi, p. 80.

[8] Abdul-Rahman Ibn Nas Al-Shaizari. Nihayat Al-Rutba Fi Talab Al-Hisba. p. 137.

[9] Al-Shaizari, p. 128.

[10] Reuben Levy. The Maalim Al-Qurba fi Ahkam Al-Hisba, p. 69.

[11] Ann Lambton. State & Government in Medieval Islam, p. 48.

[12] Lambton, p. 51.