Public and private as viewed through the work of the muhtasib - Part II: Islamic law: boundaries and rights

Social Research, Fall, 2003 by Roy Mottahedeh, Kristen Stilt

THE muhtasib (also called 'amil al-suq and sahib al-suq) was the inspector of public places and behavior in towns in the premodern Middle East and North Africa (and in some communities of Muslims elsewhere). * While the term muhtasib is usually translated as "market inspector," this official's actual charge was much broader. Based on the injunction "to command the right and forbid the wrong," the history of which injunction is told with breathtaking scholarship by Michael Cook (2000), the muhtasib would patrol public spaces and enforce "laws" wherever he saw a violation. The muhtasib therefore gave Islamic law an immediate presence in public space and was an important face of the law in society. The commercial aspects of the muhtasib were useful enough that this position continued to exist under non-Muslim rule, as it did in Spain.

Several types of writings are relevant to studying the work of the muhtasib, including theoretical writings on the role, function, and tasks of the muhtasib, and practical manuals to guide the muhtasib in his work in a particular place and time. (1) In this essay we use a passage from a work of the first type, a treatise on ethics and law by the great theologian and jurist, Ghazali (d. 1111 A.D.), (2) and passages from the practical manual for the muhtasib ascribed to Ibn al-Ukhuwah (d. 1329 A.D.) (3) to illustrate the divisions between public and private as they appear in the work of the muhtasib. These divisions show that the line between public and private was not rigidly fixed but, rather, shifted according to the relations among the people involved in any particular situation. An impermissible intrusion by one person into the private space of another may be permissible if taken by yet another person. Furthermore, what is considered outside the jurisdiction of the muhtasib because it is one person's private space may not be considered private in relation to another official, such as the police (shurta) or judge. (4) Taking this point yet further, this essay shows that relational standing seems the most important key to understanding public and private in Islamic legal thinking. (5)

The Muhtasib and Public and Private Divisions in Ihya' 'Ulum al-Din

Ihya' 'Ulum al-Din (The Revivification of the Religious Sciences) is considered the most significant work of Abu Hamid Muhammad b. Muhammad al-Tusi, al-Ghazali, in terms of both its size and substance. Ghazali intended this text to be a guide for Muslims to all important aspects of religious life, emphasizing that the purpose of religious knowledge and obedience is eternal salvation (Encyclopedia of Islam, 1954: "al-Ghazali"). Ghazali meant his book to be a bridge between ethics and law.

In the second of the book's four parts, which covers 'adat (social customs), Ghazali devoted a lengthy chapter to the order to "command the right and forbid the wrong." The interesting part of this chapter for our purposes is the definition of the scope of behavior to which this order applies. (6) Ghazali stated that the muhtasib's concern is each wrong that is presently existing, manifest to the muhtasib without spying (tajassus), (7) and whose wrongness is known without independent legal reasoning (ijtihad) (8) (Ghazali, 1996: 437).

According to Ghazali, "wrong" (munkar, literally "forbidden" or "to be forbidden") includes but is larger than the category of "sinful." If the muhtasib sees two insane people having sex he should stop them although neither is legally responsible. We might infer that this is in part because the public is a realm of propriety, and in which the muhtasib should discourage the inclination to do wrong. (It might also be argued that the act should be stopped because illegitimate children may result, but Ghazali gives the further instance of a mad man having sex with a large animal.) But Ghazali explicity says it is not stopped because of the "loathsomeness" (tafahush) of the "picture of the act" and its being "in front of people"; if the muhtasib came across the act taking place outside of the public view (fi khalwatin) he would still have to stop the insane person or persons involved because what they were engaging in is wrong (Ghazali, 1996: 437).

According to Ghazali, the muhtasib's jurisdiction covers both major and minor sins. Exposing one's pudendum ('awra) in the bathhouse is a minor sin but one the muhtasib should work to stop (Ghazali, 1996:437). (9) This reference to the pudendum points to an ongoing concern in which privacy of the body is considered differently according to who is present. Being totally alone allows nudity. In the bathhouse, men (and women, in the case of the women's bathhouse) should cover their pudenda, usually with a towel around the waist. In the street, however, a mere towel would be impermissible dress. The bathhouse was sufficiently private to allow most of the body to be exposed, but sufficiently public as to require covering of the pudendum.

The muhtasib may only address a wrong that is manifest (zahir); the muhtasib is not permitted to try to gain information about a sin that a person conceals in his home behind a closed door. The classic story told to define the muhtasib's exclusion from the home is about the second caliph, 'Umar b. 'Abd al'Aziz, who scaled the walls of a house, saw the owner in a reprehensible state and, acting in the capacity of a muhtasib, reproved him. The owner replied, "O Commander of the Faithful, if I have sinned once, you have sinned three times." "How so?" asked 'Umar. The owner replied: "The Qur'an says: 'Do not spy' and you have done so. The Qur'an says: 'Come into houses through their doors,' and you have entered over the roof. And the Qur'an says: 'Do not enter the houses of others until you have made yourselves known and greeted the inhabitants,' and you have not greeted me." Totally out-lawyered, 'Umar retreated (Ghazali, 1996: 437).