Shariah police in European streets, what are they patrolling for?
The recent news of some German Muslim youth patrolling the city of Wuppertal in western Germany urging people to refrain from various sorts of activities such as drinking alcohol is not only disturbing to German police and a source of trouble to German public but is also of a major concern to Muslims across the globe. The orange vests that these young Germans wear during their patrols and has "shariah police" written on its back indicates an alarming misunderstanding of the meaning and the role of shariah in a certain society and the functions and authority vested within the concept of "police". One can only wonder where in the Islamic law we can find that religious personal code of conduct should be applied on others who do not share the same religion. Where in the Islamic law (shariah) one can find that patrolling the streets to ensure one's own personal convictions are widely applied to a population who has different customs and social codes is a God-given right? Where in the Islamic history Muslim individuals served as moral police to guide the conduct of non-Muslims and force them to abide by the Islamic moral code? God in the Quran refused any kind of a forced moral authority or religious coercion on people as He clearly indicated "let there be no compulsion in religion" and He also says "let whoever wishes to believe do so and let whoever wishes to disbelieve do so". Prophet Muahmmad (peace be upon him) said about himself that "I was sent by God to perfect manners". This is the heart of the Islamic shariah and the core essence of the message of Islam. Perfecting one's own morals and manners is the ultimate aim of Islamic law. In the Quran we have 6236 verses only 300 of them are discussing legal affairs and regulations whereas the rest of the verses are primary concerned with perfecting manners. In Prophetic traditions we have over 60,000 traditions, only 2000 of them are concerned with legal affairs and dealings and the rest is dedicated to perfecting one's ethical conduct with God, one's own self, fellow humans be it his family, friends, neighbors and humanity in totality. Perfecting one's manners is tightly connected with the Islamic creed and does not only stop at human's level but extended also to treating animals, plants, the environment and the universe at large as they are all part of God's creation and should be treated with utmost reverence and care. The young Muslim Germans who took the matter of "ordering what is good and forbidding what is bad" within their own hands were inspired by the historical Islamic institution "the hisba" that was created during the reign of the second Caliph Umar ibn al Khattab and was popular in Muslim lands during the Middle ages to serve the purpose of market inspection and maintaining public morality. One wished that such inspiration was guided by authentic education and a deep reading in the history of the Islamic civilization to realize that such institution followed certain principles which obviously are not part of our modern context: 1- The hisba or market inspection was a legal governmental institution introduced by the state government to preside over markets and ensure that merchants are abiding by state laws regulating market business affairs and to prevent cheating, adulteration, extortion, fraud and exploitation. In modern terms, the muhtasib or the market inspector is a government official appointed to ensure the protection of the citizens against the greed of the merchants and to preserve consumers' rights. Therefore, it is impermissible by any individual or a group of people to patrol markets or streets without being government official appointed for such task. 2- The muhtasib or market inspector was applying state regulations regarding market policies and public morality. Therefore, the muhtasib was not applying self-prescribed rules but rather is an agent to apply government policies. Thus it is not the right of anyone to apply his own personal moral code on other people without any official authority regulated by the state. 3- The political authority vested within the market inspector is provided by the government and the rules are applied within state policies and are limited only to the public space where Islamic-related values are applied such as the prohibition of alcohol consumptions and the display of affection in public to maintain the Islamic moral code. Therefore if one lives in a non-Islamic country where the laws of the state are not totally matching with the Islamic legal code, the Muslim minority has no right to enforce their own legal code on others and are required to respect the laws of the state in which they live in as equal citizens. On its part, the non-Islamic state ought to respect the rights of the religious minority and provide for them freedom of religion. 4- The aim of the muhtasib was to maintain governmental market policies and state regulations of public morality and therefore was basing itself on the major principle of prima facie evidence and not circumstantial one. This means that if a Muslim is walking down the market and is known to be a heavy drinker and was walking out of a wine shop that was designated to serve only non-Muslims as alcohol is not prohibited for them, the muhtasib had no right to invade his privacy and search him even if the bottle of wine seems to be concealed under his clothes. This means that Islam is not interested in placing a burden of an exterior legal controller over one's shoulder but rather seeks to maintain public decency as for private affairs, it is the matter of personal freedom and moral conscience which should be guided by the individual's religious compass because God has no interest in the surrender of bodies but rather in the submission of hearts. I will provide a brief history of the legal institution of hisba with the hope of shedding some light on the true essence of this institution and its designated functions in the Islamic civilization. The hisba was one of the legal Islamic institutions tied to the familiar Quranic injunction to "order what is good and forbid what is bad or evil" and the term muhtasib derives from the verb ihtasaba which means, "to seek God's favor by acting righteously. Though the idea of creating the legal institution of hisbah started with Caliph 'Umar ibn al- Khattab, the office took its final shape and specific functions with the rise of the Abbasid period. It is worth noting that the legal office of muhtasib was a governmental position and the appointment of the muhtasib was conducted by either the Caliph, the Sultan or the governor and the remuneration of this position was given from state treasury. The need for such legal office rose only in large cities which had big markets to ensure maintaining public morality and observing market regulations. The economic functions of muhtasib such as maintaining moderate prices of goods, keeping market regulations, preventing cheating, exploitation and extortion were found in late Roman cities and the holder of this position was known in Greek as "agoranomous" or market inspector. The appointees for such position were at first luminary scholars with fine skills in administration. The presiding of scholars over this position gave it a religious nature. It is worth noting that during the Umayyad period the muhtasib was more commonly known as "sahib al- suq" or "the market manager" due to the heavy emphasis on market inspection, maintaining moderate prices and ensuring that merchants abide by the government's market regulations. In defining the jurisdiction of the muhtasib, luminary religious scholars such as al-Ghazali and al- Mawardi among others stated that the introduction of this office was to fill a gap left by the Islamic jurisprudence, a gap which was felt most deeply in urban markets as the functions of the muhtasib was not tied to the position of the governor, the qadi or the judge or the administrative officers. The muhtasib had no right to practice ijtihad or independent legal reasoning but only had the right to have independent reasoning in issues related to customs and traditions in the laws of sale. He was authorized by the political vestige to inflict discretionary penalties on those who violate state laws. The luminary scholar Al- Mawardi in his famous book "Al- Ahkam al Sultaniya" or "the royal rulings" discussed the specific duties which the Muhtasib undertook as part of his job of "ordering the good". Part of his duties was related to maintaining public morality and general decency such as preventing the illicit public mixing of men and women and public displays of drunkenness. Responsibilities involving market activities were also highlighted such as preventing invalid sales, contract with usurious activities, observing any illegal increase in prices of goods, inspecting weights and measures of the merchants to avoid extortion and cheating. Ibn Khaldun in the fourteenth century explained the purpose of the political authority which the muhtasib enjoyed to be ultimately related to securing people's best interests through ensuring that "people act in accord with the public interest of the town". Though the wide mandate which the loose word of "public interest" may offer, public interest is always determined by the rules, laws and regulations of the state. The Egyptian scholar, Ibn al Ukhuwa (d.1329 C.E) in his book "Ma'alim al- Qurba fi ahkam al- hisba" offered us a blueprint on how the rules and regulations of market and public morality are applied. There is an indispensible reference to the importance of setting rules and regulations which reflect an intimate knowledge of prevailing social conditions and market practices of the muhtasib's time and place. The manual contains 70 chapters and a huge part of the manual is dedicated to the rules that should be followed by the merchants of food, drink and medicines and the muhtasib is taught how to detect adulteration in these products. Ibn al-Ukhuwa also instructed the muhtasib on how to detect frauds in weights and measures used by merchants. He also outlined permissible and impermissible types of contracts. The manual emphasizes that the market place is a public space and no one is allowed to appropriate them for personal use. Therefore, Ibn al- Ukhuwa indicated that no merchant should sit in the narrow streets of the market or extend shop benches into passageways beyond the line of pillars supporting the roof of the market since this is bothersome for the pedestrians. Tethering of animals in the market place is not allowed except for alighting and mounting ( in reference to horses, donkeys and other animals that were used as means for transportation). Scattering lemon rinds or spraying water in the streets is all forbidden as it may lead to someone slipping or falling. In this manual, a clear distinction is made between public and private space. Also people carried with them their own private space which should not be a subject of intrusion. Therefore it is extremely important to emphasize that the wrongs which fall within the muhtasib's jurisdiction are those that are manifest or apparent in public space and thus he is not permitted to investigate a wrong that is being committed at home behind closed doors. An exception is made when the muhtasib learned from a trustworthy source that an imminent crime is about to happen and the damage of which will not be remediable. When it comes to relations among neighbors, there is a strict rule of respecting people's privacy at their own homes therefore no one is permitted to peer into his neighbor's house from the roofs or the windows. There is no exceptions here for wrongs that are about to be committed or are in progress as no one has the right to breach the privacy of another. When it comes to the public space such as markets, only manifest wrongs should be considered and not concealed ones. For example, the state prohibits the consumption of alcohol for Muslims and therefore forbids its purchase by Muslims along with any public display of drunkenness. Therefore if the muhtasib saw a Muslim carrying what it seems to be a bottle of wine under his cloak or in his sleeves and that this Muslim is known for drinking alcohol and was coming out of a wine shop that is designated only for serving non-Muslims as wine is not prohibited for them, he has no right to search him as the muhtasib is only concerned with prima facie evidence and not circumstantial one. From our historical research, one could conclude that the hisba system was a historical legal institution that served its designated functions and as time changed was replaced by other legal instruments to serve the same purpose such as the state police and the ministry of Commerce. Therefore, it is not the right of any individual or group of people to infringe upon the right of the state by taking matters into their own hands to apply some personal legal codes which are not even legitimate within state legislations and even if they were legitimate, individuals had no right to pursue vigilantism as it is a source for chaos and discord in societies.