X. The Ḥisba Jurisdiction in the Aḥkām Sultaniyya of Māwardi

H. F. Amedroz

doi:10.1017/S0035869X00067356

X. The Ḥisba Jurisdiction in the Aḥkām Sultaniyya of Māwardi

Published online by Cambridge University Press: 15 March 2011

H. F. Amedroz

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The general injunction in the Ḳurān to “eschew evil and do good” was held sufficiently definite to be the basis of a jurisdiction distinct both from that of the Ḳaḍi and of the police (shurṭa). Māwardi contrasts its powers with those of the Ḳaḍi's court and of the Maẓālim tribunal; but it may be that in practice the distinction was of small account, for I have found no trace of the Muḥtasib's authority ever being called in question, nor indeed much definite trace of its exercise. The wide and minute range of its duties should have made it an important factor in commercial life, but perhaps in this, as in other fields, Māwardi's work includes theory unsupported by much practice.

Type: Articles
Information: Journal of the Royal Asiatic Society , Volume 48 , Issue 2 , April 1916 , pp. 287 - 314

DOI: https://doi.org/10.1017/S0035869X00067356 [Opens in a new window]
Copyright: Copyright © The Royal Asiatic Society 1916

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^{page 288 note 1} Ṭab. iii, 324, where this disorder in the markets is stated, alter natively with the advice of the Byzantine envoy, to have been the cause of Manṣūr's removing the markets to suburbs outside the round city; le Strange, “Baghdad during the Abbasid Caliphate,” p. 65.Google Scholar

^{page 288 note 2} On the subject of the purification (janāba), mentioned on p. 415, Dhahabi, in his notice of a Shafeite jurist of Nīsābūr, d. A.H. 369, records that his son, also eminent as a jurist, held its validity to be dependent on “intention”, and that Māwardi himself got this tenet overruled as contrary to received opinion. The text runs:—

(B.M. Or. 48, 112^a).

The Ḳarmathians held this purification to be unnecessary (Ṭab. iii, 2129, 1. 15).

^{page 289 note 1}

(Ibn al-Jauzi, Muntaẓam, sub A.H. 279, Paris Ar. 5909).

^{page 290 note 1} (B.M. Or. 49, 44^a). (

Law at Damascus was lacking in certainty. But two years previously, in A.H. 393, Ḥākim's governor had a Maghribi man paraded through the town and then beheaded, “such being the due of one who loved Abu Bakr and ‘Omar” (Ibn al-Ḳalānisi. p. 58, n. from B.M. Or. 48, 22^a). Half a century earlier the relative merits of Abu Bakr and of 'Ali were the subject of guarded discussion in Egypt, see Kindi, , pp. 555–6.Google Scholar

^{page 291 note 1} (Adhkiyā, 115, 1. 18).

^{page 291 note 2} Ibn Iyās (ii, 93, 1. 3), in recording the temporary suppression of the Muḥtasib's salary at Cairo, A.H. 872, says that its monthly amount was about 1,000 dinars.

^{page 292 note 1} The Ḥisba office was venal too at Cairo in A. H. 806 (Nujūm al-Zāhira, vi, 150).Google Scholar

^{page 292 note 2} Ibn al-Ḥajjāj's length of service is uncertain. Hilāl al-Ṣābi has a laudatory notice of him on p. 430, but makes no mention of his tenure of the Ḥisba. Ibn Khallikān in his notice says that he was superseded by Abu Sa'īd al-Iṣṭakhri, but Abu Sa'īd had died in A.H. 328 (Ibn Khall., transl., i, 374). The person intended may be Abu Manṣūr al-Iṣṭakhri, who is mentioned by Hilāl, 402, I. 1.

^{page 294 note 1} Mir'at al-Zamān, B.M. Or. 4618, 27^a, where Ma'mūn says:—

^{page 295 note 1} In the Kitāb al-Luma', ed. Nicholson, , p. 192Google Scholar, Bunān is mentioned as sharing the proceeds of a begging expedition with a poor companion, who, on ascertaining Bunān's identity, rejects his share, telling Bunān that he is a mere ṣaf'ān, i.e. one whom no one should hesitate to cuff, for his behaviour was not that of a shaikh but of a ṣāḥib al-shurṭa, who got whatever he asked for. Bunān was, in fact, a sturdy beggar, and, as such, amenable to the Ḥisba. We read that Ibn al-Jallā saw with astonishment a Sūfi beggar (ib., 287,1. 3), but begging the Ṣūfis admired and inculcated. One of them (ib., 198, 1. 15) justified the practice on the ground that the givers would get their return in the form of Ṣūfi intercession for them hereafter.

^{page 295 note 2} It was on the ground that al-Dārāni (Ibn Khall., transl., ii, 88) declared that, although not averse to martyrdom, he nevertheless refrained from courting it by a display of Ḥisba zeal, lest pride should taint the purity of the act for which he died.

(Iḥyā, ii, 276, 1. 12).

^{page 296 note 1} The notice of this Zāhid illustrates the two meanings borne by the word ṣabr, meanings useful in poetry, but which led here to confusion in prose.

(Hamadhāni, Takmila, Paris Ar. 1469, 35^a).

^{page 297 note 1} Ibn al-Ḥarmi is there said to have lived on for forty-six years, and he is noticed as dying in A.H. 436 in B.M. Or. 49, 179b, under the name of Abu Bakr Muḥammad b. 'Abd Allah b. Ḥasan b. Hārūn al-Waḍāḥi.

^{page 297 note 2} (Dhahabi, B.M. Or. 49, 101^b).

^{page 298 note 1} The Shafeite argument for its prohibition is stated by the jurist al-Muzani in Ibn Khall., transl., i, 200, n. 10, and in Kindi, 511. It is recorded of Khalaf b. Hishām (d. 239; Tahdhīb, iii, No. 297).

(Ibn al-Jauzi, Muntazam, B.M. Or. 3004, 5a).

^{page 299 note 1} In the above-mentioned Zaidi treatise on the Ḥisba, B. M. Or. 3804, fol. 290^a, occurs the following direction for dealing with ribā:—

^{page 300 note 1}

^{page 300 note 2}

^{page 300 note 3} Their view is stated by Goldziher, , Zahiriten, p. 41Google Scholar, where it is assumed that the above tradition is directed against usury.

^{page 300 note 4} Also called ribā al-'ajlān by 'Omar (Mabsūṭ, , xiv, 11, 1. 3).Google Scholar

^{page 301 note 1} (Umm, ed. Cairo, iii, 12).

^{page 301 note 2} (Mabsūṭ, xii, 111, 1. 10).

^{page 302 note 1} (Mabsūṭ, , xii, 108, 1. 6 a.f.Google Scholar).

^{page 302 note 2} (Mabsūṭ, , xii, 110, 1. 6).Google Scholar

^{page 302 note 3} (Mabsūṭ, , xi, 133, 1. 7Google Scholar).

^{page 303 note 1} (ib., 1. 13).

^{page 303 note 2} (Mabsūṭ, , xiv, 30, penult.)Google Scholar

^{page 304 note 1}

^{page 304 note 2} (ib, 33, 1. 15).

^{page 305 note 1} (Mabsūṭ, , xiv, 33, 1. 17Google Scholar, and see Hidāya, , iii, 158, 1. 6).Google Scholar

^{page 306 note 1} (Mabsūṭ, , xiv, 35, 1. 13).Google Scholar

^{page 306 note 2} (ib. 33, 1. 10).

^{page 306 note 3} A bill of exchange, suftaja, for the payment of money at a distant place was open to the objection that, by avoiding the risk of the road, an “advantage” was gained (Mabsuṭ, , xiv, 37, 1. 17Google Scholar, and Hidāya, , iii, 305Google Scholar). It would appear, therefore, that the bill drawn in Baghdad A.H. 392 for money payable in Mayyāfārikīn for the murder there of an Alīde fugitive (Hilāl, 465, 1. 5) may have offended in this respect.

^{page 306 note 4} A story that Abu Ḥanīfa when attending to recover a ḳarḍ avoided profiting by the shade thrown by his debtor's abode, is declared unfounded and unfair to his legal eminence (Mabsūṭ, , xiv, 36, 1. 3).Google Scholar

^{page 307 note 1} (Mabsūṭ, xi, 110, 1. 18 in the chapter on wadī'a).

^{page 308 note 1} He reached this result by some subtle reasoning on the diversity of effect in law between a principle, 'illa, and a condition or requirement, sharṭ. The Hidāya presentment of his view is that of an adversary (khaṣm), and it is therein described as contrary to the general assent of the Ṓaltaba (ib., Kifāya, note).

^{page 309 note 1} ‘Omar admitted having himself received from the Prophet a warning against acquiring ribā from his trade in dates (Kindi, . p. 316, note).Google Scholar

^{page 309 note 2} A tradition from the Prophet declared that where a joint owner emancipated a slave he was, if well to do, to be answerable for the value of the other owner's share in him: otherwise the slave must work out the value, but he was to be let off easily (ghair mashḳūḳ 'alaihi); Mabsūṭ, , xi, 51, 1. 17.Google Scholar

^{page 310 note 1} (Mabsūṭ, , xi, 52, 1. 7Google Scholar).

^{page 312 note 1} Juynboll, 's Handbuch Islam. Gesetz, ed. 1910, p. 270Google Scholar, assumes ribā to be aimed at usury, and gives Fakhr al-Dīn's explanation of ribā al-nasī'a.

^{page 312 note 2} (Iḥyā, , ii, 77, 4a. f.Google Scholar). (ib., 270, ult.). And on the question of accepting favours from tainted sources the illustrations are “a friend of the official class, ‘āmil, or a trader who is addicted to illicit gain, yuḳārif al-ribā” (ib., 116, penult.).

^{page 313 note 1} “The miller's measure,” ḳafīz al -ṭaḥḥān, was the concise designation of a tradition which prohibited labour being paid for by its produce. A miller who had hired an ox to grind corn was forbidden by the Prophet to pay for the hire by a measure of the flour (see Hidāya, , iii, 729, 1. 13Google Scholar, and iv, 993, 1. 5). The “miller's measure” is quoted (Mabsūṭ, , xiv, 49, 1. 1Google Scholar) to indicate the illegality of paying for the sifting of earth to extract its particles of gold by the gold which might be extracted. This precise offer is recorded as having been made in A.H. 329, when Bujkam's buried hoards were unearthed, but it was refused and 2,000 dirhams paid instead. Eventually the earth yielded eighteenfold that amount (Tajārib al-Umam, vi, 39–40).

^{page 313 note 2} A Faḳīh was thus trading at Aden, circ. A.H. 680; Khazreji, Resuli Dynasty of Yemen (Gibb Memorial), text, i, 234.

^{page 314 note 1} Yet Bocthor's Dictionary of Modern Arabic speaks of a gratuitous loan (, see Dozy, sub voc.), and the qualification presumes the existence of a non-gratuitous loan.

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X. The Ḥisba Jurisdiction in the Aḥkām Sultaniyya of Māwardi

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