Translated from the Kuwaiti Encyclopedia of Jurisprudence 17/223:
Al-Ḥisbah- The Legal Definition
The majority of jurists defined it as enjoining good when its abandonment surfaces and preventing evil when its perpetration surfaces.
Matters Related to ‘Ḥisbah’:
Al-Qaḍā’: informing others regarding the legal ruling in a binding manner.
Maẓālim: the jurisdiction of injustices is leadership of those who have been wronged towards reparation through fear and restraint of litigants from fighting [one another] through fear.
‘Iftā’: a pronouncement on authority of Allah or His Messenger, and the Mufti is someone well-versed in the obtainment of the rulings related to events sufficiently without resorting to study.
Shahādah: a report of a witness to the authority; a report based on certain knowledge and not speculation or doubt.
Who is Responsible for ‘Ḥisbah’?
It is obligatory in general with respect to not considering that which is related to it; when it is related to an obligation, it is commanded; [when related to] a recommendation, its performance is requested; [when related to] a prohibition, it is proscribed. Thus when it relates to an obligation or prohibition, then it is obligatory for whoever is clearly capable of doing so at that time; and when it is related to a recommendation or detested matter, then it is not obligatory at that time.
Types of ‘Ḥisbah’
The authority of ‘Ḥisbah’ is of two types:
Fundamental ‘Ḥisbah’ which originates from the Legislator [i.e. Allah], and it is the authority which responsibility dictates in order for it to be affirmed for all who it is demanded from. And derived ‘Ḥisbah’, and it is the authority which is obtained by someone whom it is entrusted to by the Khalīfah or `Amīr, and he is the ‘Muḥtasib’.
The jurists have designated as ‘Mutaṭawwi’ the one who carries out ‘Ḥisbah’ without having been delegated the authority from the Imām or his agent; and as for the one who has been delegated the authority by the Imām and the one who is entrusted with oversight of the condition of the citizenry, finding out their affairs and their general welfare, then he is the ‘Muḥtasib’.
Pillars of ‘Ḥisbah’
Al-Ghazālī mentioned there are four: 1) the Muḥtasib, those under the Muḥtasib, that which the Muḥtasib is concerned with, and the ‘Iḥtisāb itself. And for every pillar are limits, rulings and conditions specific to it:
The first pillar- the Muḥtasib: and he is the one who the Imām or his agent authorizes to oversee the conditions of the citizenry, to find out about their affairs and their general welfare, to browse the conditions of the market concerning their dealings, to assessing their weights and any deception therein, observing what is easy for him of their affairs, seeking the repentance of violators, warning them with consequences, and punishing them in accordance with what is appropriate proportionate to the crime.
Conditions of the Muḥtasib
The jurists stipulated about the possessor of this authority conditions so that the purpose behind it can be realized, and these conditions are as follows:
1) Islam- being a Muslim is a condition for the validity of ‘Iḥtisāb due to what that entails of authority and the honor of arbitration, thus the Disbeliever is exempted since he is degraded and not deserving of the honor of arbitration over the Muslims.
2) Responsibility (Puberty and Sanity)
3) Knowledge- that he be aware of the rulings of the Sharī`ah in order to know what is commanded and what is prohibited … however it is not stipulated that he have attained the level of legal ‘Ijtihād according to the view of the majority of the jurists.
4) Integrity- an innate condition which prevents from the commission of major or minor sins, indicating ignobility or allowing for the lack of manhood.
5) Ability- Ibn al-`Arabī said: ‘As for ‘ability’, then it is the basis and it is in the self and in the body- if he needs to prevent something by force and he himself is afraid of being hit or killed by someone else, then if he expects for [this situation] to end, he is allowed according to the majority of scholars to rush into this danger, and if he has no hope, then what benefit is there in it?
6) Permission of the Imām- a group of the scholars stipulated about the Muḥtasib that he be granted permission from the Imām or authority.
7) Male- a group of scholars stipulated regarding the one entrusted with ‘Ḥisbah’ that they be male; Ibn al-`Arabī upheld this view and al-Qurṭubī followed up with saying: ‘Indeed there should not arise from women that they show up to the assemblies, mix with the men, or confer with them in the conferences peer-to-peer.’
Other allowed entrusting them due to what is affirmed in that Samrā’ bint Naḥīk al-‘Asadiyyah would pass through the markets enjoining good and preventing evil, and she would prevent the people with a lash she had with her. And the allowance of her authority and lack of opposition shows the possibility of allowing her authority in ‘Imārah and Qaḍā’.
After quoting the words of al-Khaṭṭābī, Ibn Ḥajar said: ‘Indeed women are not to be entrusted with ‘Imārah or Qaḍā’, and that she cannot wed herself to anyone nor is she entrusted with taking a covenant over anyone else. The prohibition from entrusting women with ‘Imārah and Qaḍā’ is the view of the majority while aṭ-Ṭabarī allowed it, and there is a transmission on authority of Mālik; on authority of Abū Ḥanīfah is that women can be entrusted with ruling over matters for which the testimony of women is allowed.’
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