The Qadi Muhtasib(or Qadi Hisba)

The function of this judge is related to conveying the Shari‘ah rule by way of compulsion in whatever may harm the common interest. This type of institution is also known as the hisba, and it carries out a specific task within the Islamic State, which is the controlling of the traders and skilled workers lest they cheat in their trade, work or in their products, lest they wrongly use the weights and measures or any other type of action that may affect the public rights.
As for the evidence of this judiciary, this is highlighted in the hadith of the heap of food: It has been reported in Sahih Muslim on the authority of Abu Hurayrah the following: "The Messenger of Allah (saw) passed by a heap of food, as he put his hand inside it his fingers got wet, so he said to the vendor: What is this? He said: It was dampened by the rain O Messenger of Allah. He (saw) said: Why don’t you put it on the top so that people can see it? He who cheats us is not one of us."

So this was a public right on which the Messenger of Allah looked into, and judged that the wet food should be displayed at the top to prevent cheating. And this applies to all the common rights or interests that are of this nature. It does not include the penal code or the criminal law, for they are not of the same sort, as they are disputes between people in the first place.

The Mandatory powers of the Muhtasib

The muhtasib has the power to judge on the offence as soon as he learns about it, and this could take place on the spot and in any place; he does not need to be in a judiciary court. He will have at his disposal a number of police officers to execute his orders and apply the sentence on the spot. A judiciary court would not be required for the muhtasib to look into the case at hand as he passes the judgment the moment he is sure that it took place, and he has the power to judge in any place and at any time, be it in the market, in the house, or while riding in the car both by day or night.

This is so because the evidence that confirms the need to have a judiciary court in order to deal with a case does not apply to the muhtasib, for the hadith which confirmed such condition states: ‘If the two disputing parties sat before you’, and this is not applicable to the judge of hisba, for there is no plaintiff and no defendant, there is only a public concern that has been violated, or a violation of the Shari‘ah. Besides, when the Messenger of Allah (saw) looked into the case of the heap of food, he was at the time walking in the market and the food was displayed for sale, he (saw) did not summon the vendor to him, but as soon as he detected the offence he dealt with it on the spot. This indicates that the cases of hisba do not require a judiciary court.

The muhtasib can be given the right to select deputies in lieu of him. They should fulfil the requirements of the muhtasib, and he is allowed to assign them to different places. These deputies would have the power to carry out the duties of the hisba in the areas they have been assigned to and in the cases they have been delegated for. These deputies must be appointed as full judges, holding all the mandatory powers given to a judge.

The legal requirements for those whom the judge appoints as his deputies are: They must be Muslims, sane, free, just, mature and faqihs (learned scholars) in the matters they are assigned to deal with, i.e. they must have the same requirements of the muhtasib for they are also judges like him.