Constitution of the Caliphate State / Judiciary
- Category: Judiciary §75-95
Article 77: The Judges are of three types: One is the Judge (Qadi), and he undertakes settling the disputes between people over transactions and penal codes. The second is the Muhtasib, who undertakes the settling of any breach of law that may harm the rights of the community. The third is the judge of the Court of Injustices (Madhalim), who undertakes the settling of disputes between the people and the State.
This article explains the types of judiciary. The evidence about the judge that settles disputes between people is derived from the actions of the Messenger of Allah and from his appointment of Mu’adh b. Jabal (ra) over an area of Yemen.
As for the evidence for the judiciary regarding the settling of disputes which endanger the rights of the community, where the judge is known as the Muhtasib, this is confirmed by the action and words of the Messenger of Allah , for he said
«لَيْسَ مِنَّا مَنْ غَشَّ»
“He who decives has nothing to do with us” (reported by Ahmad and Ibn Maja from Abu Hurayrah). He used to confront the cheaters and punish them. Qays b. Abi Gharzah Al-Kanani reported
كنا نبتاع الأوساق في المدينة ونسمي أنفسنا السماسرة، فخرج علينا رسول الله فسمانا باسم أحسنمن اسمناقال : «يَا مَعْشَرَ التُّجَّارِ، إِنَّ الْبَيْعَ يَحْضُرُهُ اللَّغْوُ وَالْحَلْفُ، فَشُوبُوهُ بِالصَّدَقَةِ»
“We used to trade in the markest of Al-Madinah and we used to call ourselves as-Samasirah (brokers), so the Messenger of Allah came out to us and gave us a better name. He said:O company of merchants, unprofitable speech and swearing takes place in business dealings, so mix it with Sadaqah (alms)” (reported by the authors of the Sunan and Al-Hakim who authenticated it, and Al-Tirmidhi said it is Hasan Sahih). And it is narrated that Al-Bara’ b. ‘Azib and Zayd b. Arqam were partners, so they both bought some silver with money on the spot and by credit. This news reached the Messenger of Allah so he ordered
«أَنَّ مَا كَانَ بِنَقْدٍ فَأَجِيزُوهُ، وَمَا كَانَ بِنَسِيئَةٍ فَرُدُّوهُ»
“What was by (on the spot) money is permitted, and what was on credit must be rejected”
(reported by Ahmad from Al-Minhal). All of this is the judiciary of Hisbah.
Calling the judiciary that settles the disputes that may harm the right of the community as Hisbah is in fact a technical term referring to a specific task carried out in the Islamic State, which is the monitoring of the traders and skilled workers in order to prevent them from cheating in their trade, work, or products, forcing them to use measurements and scales and preventing anything else that may harm the community. These are the very types of actions that the Messenger of Allah demonstrated, ordered to be observed, and undertook in settling their issues, as is clear from the narration Al-Bara’ b. ‘Azib, where he prevented both parties from selling silver by credit. Therefore, the evidence about the Hisbah isfrom the Sunnah. In the same manner, these evidences include that the Messenger of Allah appointed Sa‘id b. Al-‘As over the Makkan market after it had been conquered as is mentioned in Al-Tabaqat of Ibn Sa’d, and in Al-Isti’ab of Ibn Abdul Birr. And Umar Bin Al-Khattab (ra) appointed Al-Shifa, a woman from his clan, as a market judge (inspector), in other words, a judge of Hisbah, as he also appointed ‘Abd Allah b. Utbah over the market of Madinah, as reported by Malik in Al-Muwatta and Al-Shafi’i in his Musnad. He personally used to also deal with the judiciary of the Hisbah, and would go around the markets just like the Messenger used to do. The Khulafaa’ went on carrying out the Hisbah until when Al-Mahdi came he established a special department for the Hisbah, making it a part of the institutions of the judiciary. At the time of Al-Rashid, the Muhtasib (judge of Hisbah) wouldgo around the markets, checking the weights and measures for any cheating, and to look into the traders’ transactions.
The proof for the judiciary that is called the Judge of the Court of Injustices (Madhalim) is the action of the Messenger having allowed him to retaliate from the Messenger himself. Al-Bayhaqi narrated in Alsunan Alkubra through Abi Saeed Alkhudari who said:
بينما رسول الله يقسم شيئا أقبل رجل فأكبَّ عليه فطعنه رسول الله بعُرجون "أي عِذْق من نخل" كان معه فجرح الرجلَ، فقال له الرسول «تعالَ فاستَقِدْ»، فقال بل عفوت يا رسول الله.
“While the Messenger of Allah was dividing something, a man approached him and tried to hastily take a portion from the Prophet . He صلى اللهعليه وآله وسلمstabbed him with a date tree stalk which was with him, thereby wounding the man. The Messenger said to the man: “Come and retaliate.” The man replied: I have forgiven O Messenger of Allah.”. This is a case between the head of the state (the Messenger of Allah ) and one of the citizens, and additionally he said
«فَمَنْ كُنتُ أصبتُ مِن عِرضه، أو مِن شَعره، أو من بَشَرِه، أو مِن ماله شيئاً، هذا عِرض محمد وشعرُه، وبشرُه، ومالُه فليَقُمْ فليَقتصَّ»
“Whoever I took property from, here is my property; let him take from it, and whosever back I whipped, here is my back; take recompense from it.” reported by Abu Ya’la from Al-Fadl Bin ‘Abbas. Al-Haythami said that ‘Ata b. Muslim who is in the chain of Abu Ya’la has been considered trustworthy by Ibn Hibban and others, whereas others have weakened him, and the rest of the narrators are trustworthy. In a narration by Tabarani in al-Mu’jam Al-awst by al-Fadhl bin al-Abbas narrated that the Prophet said,
«فمَنْ كنتُ جلدتُ لهُ ظهراً فهذا ظهري فليَسْتَقِدْ منه، ومَنْ كنتُ شتمتُ لهُ عِرضاً فهذا عِرضي فليَسْتَقِدْ منه، ومن كنتُ أخذتُ لهُ مالاً، فهذا مالي فلْيَسْتَقِدْ منه»
“Whoever I had whipped his back here is my back, let him retaliate! Whoever I had cursed his honor, here is my honor let him curse it! Whoever I had taken some money from him here is my money, let him take from it.” This is nothing other than the judiciary of the injustices (Madhalim), because it is encompassed by the definition of the judiciary of injustices (Madhalim), which is the investigation into what occurred between the people and the Khalifah. Therefore, the evidence for the judiciary of injustices (Madhalim) is the actions and words of the Messenger . However, he did not make a judge specific to the injustices (Madhalim) alone for all the areas of the State, and the Khulafaa’ after him proceeded in the same manner, in that they used to deal with the injustices (Madhalim) as occurred with ‘Ali Bin Abi Talib (ra) – but he did not make it during a specific time or with a particular style, rather the injustice (Madhlamah) would be looked into as it occurred, and so it was part of the overall actions. The situation remained the same until the days of ‘Abd Al-Malik b. Marwan, who was the first Khalifah to deal with the injustices (Madhalim) separately at a specific time with a particular style, so he used to designate a specific day, and would look into the injustices, and subsequently if anything was difficult for him he would pass it to his judge who would rule upon it. After that, built upon this system, the Khalifah would appoint a delegate who would look into the injustices raised by the people, and the Court of Injustices (Madhalim) became a specific apparatus, and used to be called “Dar Al-‘Adl” (the House of Justice). This is permitted from the angle of appointing a judge who is specific for it, since it is permitted for the Khalifah to appoint someone as a delegate to undertake his work in all the mandatory powers that he has and it is permitted from the angle of specifying a particular time, and style, since it is from the permitted issues.