the practice of violence in the "ḥisba"-theories

International Society for Iranian Studies

The Practice of Violence in the "ḥisba"-TheoriesAuthor(s): Ahmed AbdelsalamSource: Iranian Studies, Vol. 38, No. 4 (Dec., 2005), pp. 547-554Published by: Taylor & Francis, Ltd. on behalf of International Society for Iranian StudiesStable URL: http://www.jstor.org/stable/4311762 .

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Iranian Studies, volume 38, number 4, December 2005

Ahmed Abdelsalam

The Prac e of Violence in the hisba-Theories

In the Islamic legal literature (fiqh), the term bisba indicates the duty of every Muslim to command right and forbid wrong. The term bisba is used also to denote the function of the person who was in practice entrusted in a given town with applying this rule, supervising moral behavior and, more particularly, with exerting control over the markets; this person entrusted with enacting 4isba was called the mu4tasib.1 Legal scholars had to solve the problem of how the general duty of "commanding right and forbidding wrong" could be fulfilled after it had become institutionalized as a separate office. This debate touches upon a particular aspect of the controversies between state and scholarly

2 control of Islamic activities. It seems that thee duality in the meaning of hisba led to a new debate in the Islamic thought. This ,debate becomes relevant especially after "the commanding right and forbidding wrong" duty became institutionalized.3 This happened even before the caliph al-Ma'mun (r. 813-33) declared a ban on forbidding wrong by private individuals.4

This brief paper deals with only the theoretical discussions on the question whether and under which circumstances it is permitted to use violence when exercising 4isba;5 questions of what this looked like in practice are thus beyond the scope of the paper. Although jihdd, in its conceptual roots and history, is closely related to the general principle of "commanding right and forbidding wrong" underlying 4isba as well, the whole circle of questions cannot be addressed here.

Ahmed Abdelsalam is at the Institute of Oriental Studies Martin Luther University, Halle- Wittenberg, Germany.

1Cl. Cahen, M. Talibi, article kisba in Engyelopaedia of Islam. 2See D. G. Tor's contribution in this volume for an outline of the general framework of this

conflict. 3See Ahmed Abd-Elsalam, Das mamlukische muhtasib-Amt-Eine islamische Institution im Kontext

so,io-politischen Wandels (Unpublished MA thesis, Halle, 2004), 21-35. 4Se Cl. Cahen, M. Talibi, article bisba in Engyclopaedia of Islam; compare Michael Cook,

Commanding Right and Forbidding Wrong in Islamic Thought (Cambridge, 2000), 107. 5Michael Cook's works on commanding right andforbidding wrong offer a great presentation of the

development of religious discourses on bisba within the separate legal schools; for an outline of the historical development of bisba as an institution, see R. P. Buckley, "The Muhtasib" in Arabica, vol. 39 (1992): 59-117; see also Claudia Kickinger, Stddtische Markte des Nahen Ostens (Frankfurt, 1997).

ISSN 0021-0862 print/ISSN 1475-4819 online/05/040547-8 i Routledge ?C2005 The Intemational Society for Iranian Studics Taylou&FcisGeop

DOI 10.1080/00210860500338333



548 Abde/salam

It is a consensus among all Muslim scholars and Islamic schools of law (madhd- bib) to regard bisba as a duty.6 However, there is no consensus concerning the following questions:7

* Which kind of duty must the bisba be related to? * Who may and who must fulfill these duties respectively? * With what means may this duty be fulfilled and is it allowed to use violence?

Before we go further into these questions, we have to understand the nature of the bisba. Basically, it must be viewed as an attempt to bring about a conditional change to protect the public order in Muslim society. That is why Michael Cook describes the bisba in his work as "righting wrong."8 He writes, "Yet in the payload of the tradition, the Prophet speaks not of 'forbidding' wrong but of 'righting' it, using a verb (gbayyara) whose primary sense is 'to change'."9 I would like to refine this definition and to suggest that the bisba aims to change those conditions and circumstances that do not conform to the social as well as the religious standards of the societies of the two parties involved in the process of bisba-the muhtasib (the active part) and the muhtasab 'alaihi (passive part). This means that hisba is not restricted to religious concerns and regulations, but also refers to the customs and practices of the community and 'urf (customary law), respectively.10

The majority of scholars regard bisba as a collective duty (far4 kifaya) incumbent upon the Muslim community as a whole." Nevertheless, al-Hasan al-Basri (d. 728) regards the bisba as a supererogatory duty (ndfl/a).12 Mawardi (d. 1058, sbdff i) and Ghazall (d. 1111, sbh4fi'i) qualify the type of duty by referring to the situation and competence of the person exercising 4isba-the mu4tasib-and in particular his authority. Mawardi distinguishes between the muhtasib, a person appointed to this office by the ruler, and the mutatawwi', a person practicing the hisba voluntarily and unsalaried.'3

Correspondingly, Mawardi points out that the duty of a mubtasib is an individual duty (far4 'ain) and the duty of a mutatawwi' is a ndfila. "According to Mawardi, the

6 Cook, Forbidding Wrong in Islam (Cambridge, 2003), 11. Michacl Cook, Forbidding Wrong in Islam (Cambridge, 2003), 27 ff.

ichacl Cook, Forbidding Wrong in Islam (Cambridge, 2003), 4; and see Michael Cook, Command- ing Right and Forbidding Wrong in Islamic Thought (Cambridge, 2000), 34 ff.

9Michael Cook, Forbidding Wrong in Islam (Cambridge, 2003), 4. '0For a detailed description, see Ahmed Abd-Elsalam, Das mamlumkibhe m4taib-Amt-Eine

islamische Institution im Kontext so.Zio-politischen Wan/ss (Unpublished MA thesis, Hallc, 2004), 11 ff., 15 ff. and 67 ff.

"Sce Muhammad Kamal al-Din Imim, U.sol al-4isba fi al-islam (Alexandria, 1986), 54 ff. 12Mulammad Kam?1 al-Din Imam, U4fdl al-bisbafial-isldm (Alexandria, 1986), 49; see Abi Bakr

Ahmad b. Muhammad b. Hirtin al-Khallil, al-Amr bil-ma'rdf wa-n-naby 'an al-mmnkar (Beirut, 1986), 38.

3See Abua al-Uasan al-Mawardi, al-A4kdm al-s(ltdniya (Beirut, 1992), 299 ff. 14Abu al-Hasan al-Miwardi, al-Ahkdm al-sultdn,yya (Beirut, 1992), 299 ff.



The Practice of Violence in the hisba-Tbeories 549

ruler acquires his official tasks and his authority through the oath of obeisance (bai'a), which transfers some of the collective duties of the individual Muslims to the ruler; among these duties is the bisba. By appointing a person as muhtasib, the ruler then delegates the corresponding legal authority and obligation to him. Thus, the appointed mu4tasib is not only entitled, but is also obligated, to fulfill the bisba unrestrictedly. As a result, the individual Muslims lose a part of both their obligations and the necessary authority to carry out the bisba. Accordingly, the duty of bisba is merely ndfila to an ordinary Muslim instead of afar4 kifaya.15

Ghazali, on the other hand, holds a different view. In his opinion, the obligation to carry out bisba depends on the circumstances of the i4tisdb.16 The hisba is a collective duty. But whoever becomes aware of a condemnable condition or circumstance in his immediate vicinity is individually obliged to forbid it. This status of "individual duty" lapses as soon as the concerned person exercises hisba in any way; the object of i4tisdb (al-mubtasabjfihb) changes or is changed or if the person is not able to bring about a change. The obligation then returns to its original status of "collective duty". According to GhazAll, persons holding more power or authority are more obliged to exercise bisba than other people. Thus, he combines the type of duty with the competences (qudra) of the exercising person and the particular situation. In this regard, Ibn Taimiya (d. 1311, kanbali) agrees with Ghazdll.'7

The Mu'tazilite al-Jubba'i (d. 915/6), al-Qdli 'Abd al-Jabbar (d. 1025/26, shdfi'),18 and some ash'art scholars, such as al-'Izz b. 'Abd al-Salam (d. 1262, shfi' )l9 and Jalal ad-Din al-Bulqiln (d. 1403, shdfii) as well as Ibn Hajar al-Haithami (d. 1567, shdf'i), share the opinion that the kind of duty depends on the object of the ihtisdb. That is, the degree of duty attached to ibtisdb depends upon its object; for instance, i4tisdb is a supererogatory duty (ndfila) as long as the object is related to a supererogatory duty.20

Regarding the question of who is allowed to fulfill the duty of kisba, Ghazali holds that every Muslim is allowed to exercise bisba. Moreover, a Muslim is obliged to do so if he is mukallaf. That means if he is adult and sound of mind, regardless of gender and legal status as a slave ('abd) or free-born (kurr), and regardless of whether he is virtuous ('adi) or sinful (fdsiq). In addition, Ghazal! does not think that a mubtasib has to be authorized by the ruler; only in cases where the intended change can be achieved only by using violence does he

15See Ahmed Abd-Elsalam, Das mam/ukische mu4htasib-Amt-Eine islamische Institution im Kontexi so1io-politischen Wandels (Unpublished MA thesis, Halle, 2004), 15-21.

See Abu ljamid al-Ghazali, Ihyd' 'uIlim ad-din (Cairo, 1992), 2:339-343. 7See Ahmad b. Taimiya, al-Hisbafial-isldm (Beirut, 1992), 10-24.

'5See Michael Cook, Commanding Right and Forbidding Wrong in Islamic Thought (Cambridge, 2000), 202 ff.

19See Michael Cook, Commanding Right and Forbidding Wrong in Islamic Thought (Cambridge, 2000), 352; see 'Izz al-Din b. 'Abd al-Salam, Qawd'id al-a4kdmft masalih al-andm (Cairo, 1980), 1: 109.

2OSee Muhammad Kamal al-Din Imam, Usul al-bisbaft al-is/dm (Alexandria, 1986), 49; see also Michael Cook, Commanding Right and Forbidding Wrong in Islamic Thougbt (Cambridge, 2000), 202 ff.



550 Abdelsalam

address the problem of a sanction of violent behavior by the state. In such cases, he recommends obtaining the approval of the ruler (idhn) in order to prevent internal disorder (fitna).2

Mawardi, too, holds that every Muslim may carry out bisba; similarly, he, too, restricts the ibtisdb of the mutatawwi' to the obvious and immediate objects of i4tisdb, where change can be achieved without violence. In contrast, the mu4tasib appointed by the ruler is allowed to fulfill the requirements of his office without restrictions as long as he possesses the necessary competence.22 This means that the responsibilities of a mubtasib are limited to the 'urf and the obvious and well- known religious regulations; the administration of bodily punishments is reserved to the qd4i and his helpers.23 It is not necessary for the mubtasib to be a mujtahid. Mawardi demands only that the mubtasib should be virtuous, serious, free-born, and competent to recognize obviously condemnable things (al-munkardt al-rZdhira).24

As mentioned above, Ibn Taimiya connects the oblig2ation of i/tisdb and the competence of the person exercising it (qudra, istitd'a). Thus, every Muslim who is capable of doing so is obliged to exercise bisba.26 The ability to identify the object of the iktisdb also belongs to qudra; an ordinary, unqualified Muslim could, therefore, cause more damage through his ibtisdb than the object of the ibtisdb itself.27 Consequently, Ibn Taimiya recommends limiting the iktisab to those who have the relevrant knowledge.28 He points to an old tradition handed down by Abui Ya'la b. al-Farra' (d. 1066, 4anbdli) in his work al-Mu'tamad.29 This tradition requires three qualities in a person wanting to exercise i4tisdb: fiqh (specific knowledge regarding the object of the iktisdb), rifqa (mildness in exercising iktisdb), and bilm (patience).30 However, Ibn Taimiya concomitantly warns against regarding these aspects as a pretext for general dropping of the duty as soon as the three characteristics mentioned above are absent.31

If we now try to connect the obligation of iktisdb and the competence of the person exercising it, we find that both are congruent with the prophetic tradition

21See Abui Hamid al-Ghazil!, Ibyd' 'ulim al-dn (Cairo, 1992), 2: 339-342. Fitna as a term denotes a wide variety of undesired situations, from private temptation via public disorder to full-fledged civil war.

22See Abui al-Hasan al-M5wardi, al-AhkAam al-sultdnfyya (Beirut, 1992), 299-301. 23Neither in the practice nor in the hisba manuals like those of Shaizarl and Ibn al-Ukhuwwa is

there any attention paid to the limitation of the responsibilities of the mubtasib to the 'urf and the obvious and well-known religious regulations.

24Abd al-Hasan al-Mawardi, al-Abkdm al-sultdniyya (Beirut, 1992), 300. 25See Ahmad b. Taimiya, al-IHisbaft al-isldm (Beirut, 1992), 10. 26See Ahmad b. Taimiya, al-Hisba ft al-is/dm (Beirut, 1992), 25. 27See Ahmad b. Taimiya, al-Hisbaft al-islam (Beirut, 1992), 58-71. 28See Ahmad b. Taimiya, al-IHisbafi al-is/dm (Beirut, 1992), 70. 29The source mentioned by Ibn Taimiya is unknown to me; see Abu Ya'la b. al-Farra', al-AhAkdm

al-smltdnKva (Cairo, 1966), 285. 30See Ahmad b. Taimiya, al-IHisbafi al-is/dm (Beirut, 1992), 70. 31See Ahmad b. Taimiya, al-IHisbafi al-is/dm (Beirut, 1992), 70 ff.



The Practice of Violence in the hisba-Theories 551

about "righting wrong" (tagbyir al-munkar). The following hadith is taken from Muslim (al-Sabz.). It is normally understood to provide a framework for the gradation of the methods of ihtisdb as prescribed by the Prophet, but one should note that most of the scholars adjust this gradation to their own concepts of hisba and to their own ideas:

It is narrated on the authority of Tariq b. Shihab: Abui Sa'id remarked: I heard the Messenger of God say: He who amongst you sees something abominable should modify it with the help of his hand; and if he does not have enough strength to do so, then he should do it with his tongue; and if he does not have enough strength to do so, (even) then he should (abhor it) from his heart, and that is the minimal requirement of faith. (Muslim, 49/79)

According to the hadith, a munkar (a condemnable act) should be changed with the aid of the hand, which means including recourse to immediate coercion. Instead, however, most of the jurists rank the verbal prevention of the munkar first. They divide this verbal prevention into three types and connect these to the circumstances and necessities of the i4tisdb, as well as to the social conditions prevailing between the two parties in bisba.32 These three types are:

* explaining (at-ta'rij/) to the mubtasab 'alaihi that he does something condemnable or is about to do so;

* forbidding the munkar by mild exhortation (al-wa'z bi-l-kaldmi al-latij); and * preventing it by using hard reproach or invectives (al-sabbu wa-l-ta'nof).

According to the scholars, all Muslims are allowed to use those three methods of bisba, depending on the situation. They even warn against the arbitrary inten- sification of means. Furthermore, Ghazali explains that a son is not entitled to use the third type against his parents.

If the verbal methods are not sufficient to stop or prevent a munkar, the scholars permit that the mubtasib use violence. However, they disagree in their answers to the questions of when, how, and by whom bisba should be practiced in this way.

Whereas Mawardi permits the legal usage of violence only by the mubtasib appointed on behalf of the ruler, GhazflI, Juwaini (d 1085, shafi'i)33 and Shaykh- zada al-Hanafi (d. 1887, hanafi) allow the use of violence by any Muslim to prevent munkar. At the same time, Ghazill and Juwaini recommend the prior approval of the sultan-albeit legally not necessary-in order to prevent disturbances.

32See Abui Hamid al-Ghazali, Ihyd' 'ulum ad-din (Cairo, 1992), vol. 2: 343 ff.; Michael Cook, For- bidding Wrong in Islam (Cambridge, 2003), 27 ff.; 'Abdallah Muhammad 'Abdallah, Wildyat al-hisbajp al-isldm (Cairo, 1996), 143 and 229 ff.

33Abui al-Ma'ali al- Juwaini, al-Irshad ild qawdtial-adillaulfil u al-i'tiqdd (Cairo, not specified): 368.



552 Abdelsalam

For Ibn Taimiya and at-Tlimsani al-MAliki (d. 1466, mdliki),34 among others, the methods of the i4tisdb depend on the competence of the muhtasib and his authority. To stay with Ibn Taimiya and in general the banbalis for a while, in legal theory, at least, they do not seem to have endorsed the use of violence more frequently than authors affiliated with other schools of law. Thus, Ibn Taimiya forbids the use of violence against rulers, as long as they practice praying.35 Likewise, he warns against the offensive practice of i4tisdb without specific knowledge, mildness, and patience. On the contrary, offensive practice of ihtisdb is the way in which the Kharijites, the Mu'tazila, and the Rdfi4a (the

36 Shia) exercise bisba and jihdd, according to Ibn Taimiyya. It is incumbent on the Sunnis, the ahl al-sunna wa-l-jamd'a to avoid fighting (qital) since this could lead to fitna (meaning here, civil war). 7

For Ibn Taimiya, commanding right and forbidding wrong is the meaning behind and the ultimate aim ofjibdd. 8 It is also what legitimates the actions of all government administrative bodies (wildydt) and thus leads to a legal policy (siydsa shar'Kya).39 At the same time, Ibn Taimiya distinguishes between ahi al- sunna wa-I-jamda and al-f'a al-bdghtya wa-abl al-kufr (rebels, tyrants, and nonbelie- vers), such as the Mongols, whom he declared to be apostates in his famousfatwa on "fighting the Tatars". He made it an obligation for the Muslims to fight them and all rebellious groups like the Kharijites and the Shia in order to avoid the fitna, which God mentions in the Koran: "And fight with them until there is no persecution (fitna), and religion should be only for Allah."40 Fighting the rebellious groups is obligatory if they do not return to Islam, and as long as they persist in their rebellion, neither peace treaty nor a security agreement can be given them, according to Ibn Taimiya.41

I think that Ibn Taimiya had two different sets of opinion about the use of violence. On the one hand, he warns against offensive practice and the use of violence when exercising 4isba. This concerns the internal affairs of the Sunni Muslim society (in practice, the Mamluk state). On the other hand, he supports the use of violence against external dangers arising from groups outside the Sunni Muslim world such as the Mongols, the Shia, and the Kharijites and their likes, all of whom threaten the faith and the Muslim society of ahi al-sunna wa-ljamda. Moreover, it seems that Ibn Taimiya tried to cooperate with the

34Abu 'Abdallah b. Muhammad al-'Uqban! al-Tlimsni al-Maliki, "Tuhfat al-ntzir wa-ghunyat al-dhikir fi; hift al-sha'a'ir", in Bulletin d'Etudes Orientales, Institut Fran5ais de Damas, Tome XIX Annees 1965-1966 (Damas, 1967): 6.

35Alimad b. Taimiya, al-H.Hisbafi al-is/dm (Beirut, 1992), 63 ff. 36Ahmad b. Taimiya, al-Ilisba ft al-isldm (Beirut, 1992), 63. 37AAhmad b. Taimiya, al-IHisba ft al-isldim (Beirut, 1992), 63. 38Ahmad b. Taimiya, al-Hisbaf al-isldm (Beirut, 1992), 62. 39Ahmad b. Taimiya, al-Hisbaj al-is/dm (Beirut, 1992), 10. 40M. H. Shakir, Translation of the Holy Quran (online edition 1983), 2:193; see also Ahmad

b. Taimiya, al-Fatdwd al-kubrd (Beirut, 1988), 4:279-295. 4tSee M. H. Shakir, Translation of the Holy Quran (online edition 1983), 4:279-283 and 295-299.



The Practice of Violence in the hisba-Theories 553

Mamluk state, asking for support every time he went to war against the enemies of the faith. In his rhetoric, he avoids every kind of confrontation with the Mamluk state and never voices any doubts about the legitimacy of its rulers.

Ahmad b. Hanbal was also against violence in the exercise of bisba, at least, against the use of arms. In his work, al-Amr bi-l-ma'rkf, Abu Bakr al-Khallal (d. 923, hanbdai) hands down the following tradition, going back to Ahmad b. Hanbal: "Change [taghyir] means change brought about by the use of the hand and not the sword or other weapons."42 Concerning Ibn Hanbal and the early Hanbalites, Cook notes that at this time they seek neither confrontation nor cooperation with the state.43 He characterizes Ibn Hanbal's doctrine of bisba as a deeply apolitical one. I am not sure whether there can be such a thing as an apolitical doctrine of bisba: if hisba means "changing" or "righting wrong," this necessarily leads to an understanding of the hisba as a socio-political process. In view of that, I suggest to study the doctrines of bisba in their historical context without putting too much stress on the schools of law the various authors were part of. Such a study might well reveal that some authors departed from their position, depending on the situation.

To come back to the group of legal scholars who allow the use of immediate force in the exercise of hisba, in particular Ghazali and his followers, in brief, they distinguish two essential methods in the prevention of munkar by violent means:

* the prevention by means of immediate force (al-man 'u bi-l-qahri bi-tariqi al-mubdshara), as in the destruction of the incriminated object (e.g., musical instruments) or the confinement of the delinquent; and

* warning and threatening to beat the culprit as well as beating him till he ceases from his sin (at-takhuwfu wa-l-tahdidu bi-l-darbi wa mubdsharatu 1-darbi lahu hattdyamtani 'a 'amma huwa 'alaihi).

But it is not only al-GhazMli and his followers who permit the use of immediate force by private persons; some Hanafite scholars, too, think that it is legal to prevent munkar even by means of killing if needed. On the other hand, even those Malikites and Shifi'ites who permit the use of immediate force do not allow killing without authorization from the ruler, except by the ruler himself and the authorized officials.46

42Abii Bakr Ahmad b. Muhammad b. Harun al-Khallal, al-Amr bi-l-ma'ruif wa-n-nahy 'an al- munkar (Beirut, 1986), 44.

43Michael Cook, Commanding Right and Forbidding Wrong in Islamic Thought (Cambridge, 2000), 101.

4Michael Cook, Commanding Right and Forbidding Wrong in Islamic Thought (Cambridge, 2000), 106.

45See Abui Hamid al-GhazAll, Ihjd"'luim ad-din (Cairo, 1992), vol. 2: 343); see Muhammad Kamal al-Din Imam, Usul al-bisba ft al-isIdm (Alexandria, 1986), 106 ff.

46Muhammad Kamal al-Din Imam, Usil al-bisba fi al-isldm (Alexandria, 1986), 107.



554 Abdelsalam

To conclude, it must be noted that Muslim legal scholars hold different opinions concerning the bisba. Those different opinions do not necessarily depend on their affiliation to a specific school or tendency nor are they influenced by them. On the contrary, there are more differences of opinion within any given school of law than there is common ground. It is also a fact that the two concepts of bisba proposed by Mawardi and Ghazili-both are Shafi'ites-have had great influence on all later definitions of bisba by members of the various legal schools till today. We cannot predicate that a specific school has a bias towards prevention of munkar by means of violence more than the other schools, but it should be recognized that some scholars let the door open to use it more than the others.



the practice of violence in the "ḥisba"-theories

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