The Institutions of State in the Khilafah by Hizb ut-Tahrir

There are three types of judges: One is the Qadi, and he is in charge of settling the disputes between people over transactions and penal codes. The second is the Muhtasib, who is in charge of settling any breach of law that may harm the interests of the community or property. And the third is the judge of Mazalim, who is in charge of settling disputes between the people and the State. .

These are the three types of judges. As for the evidence about the judge who settles disputes between people, this is derived from the actions of the Messenger of Allah (PBUH), and from his appointment of Muadh Ibnu Jabal over an area of Yemen. As for the evidence of the judiciary regarding the settling of disputes which endanger the interests of the community, where the judge is known as the Muhtasib, this is confirmed by the action and saying of the Messenger of Allah (PBUH), for he said: .

"He who cheats us is not one of us". [This is a part of a hadith narrated by Ahmad on the authority of Abu Huraira.]. Thus, He (PBUH) used to challenge the cheaters and punish them. .

He (PBUH) used also to order the traders to speak the truth in trading and give charity. Ahmad narrated from Qays Ibnu Abi Gharza Al Kinani, he said, “We used to buy cargo in Madinah and we would call ourselves brokers, so the Messenger of Allah (PBUH) came out to us and called us with a better name, He (PBUH) said: .

“O traders, verily the selling entails talking and the taking of oaths, so do mix it with Sadaqah”. .

Ahmad also narrated from Abu Al-Minhal: .

"That Zayd ibn Arqam and Al-Bara' Ibn ‘Azib were partners, so they both bought some silver with cash on the spot and by credit. This news reached the Messenger of Allah (PBUH) so he ordered: 'Where the payment is made on the spot there is no harm, and where it is sold on loan it must be rejected.'” .

Thus the Messenger (PBUH) prevented them from the riba of credit. All this is the judicial remit of the Hisbah. Calling the judiciary that settles the disputes that may harm the interests of the community as the Hisbah is in fact a technical term referring to a specific task carried out in the Islamic State, i.e. To control the traders and skilled workers lest they cheat in their trade, their work, their products, lest they wrongly use the weights and measures, or any other type of action that may affect the interests of the community..

And this is the very action that the Messenger of Allah (PBUH) demonstrated and ordered to be observed, and personally applied judgement upon, as mentioned in the Hadith of Al-Bara' Ibn Azib, where he ordered both parties to abstain from selling silver by credit. .

The Messenger of Allah (PBUH) has also appointed Sa'id ibn Al-As as a muhtasib in the markets of Makkah after its conquest as reported in the Tabaqaat of ibn Sa'd and in Al-Istiab of Ibn ‘Abd al- Barr. Therefore, the evidence of hisbah is the Sunnah. ‘Umar b. Al-Khattab had also appointed Al- Shifa, a woman from his clan, who is Umm Suleiman ibn Abi Haythma, as a market judge (inspector) i.e. a judge of Hisbah; and he also appointed Abdullah ibn Utbah a judge on the market of Al-Madinah, as Malik mentioned in Al-Muatta' and Al-Shafi'i in his Musnad. He also himself used to deal with the judiciary of the Hisbah, and walk around in the markets just like the Messenger of Allah (PBUH). The Khalifah went on dealing with the Hisbah until the days of Al-Mahdi who set a special organisation to the Hisbah which became one of the organisations of Judiciary. At the time of Al-Rasheed, Muhtasib (judge of Hisbah) used to go around in the markets, checking the weights and measures and to look into the traders’ transactions. .

As for the evidence for the judge of Mazalim (unjust acts), this is derived from Allah (S.W.T) saying:.

"If you dispute about something refer it to Allah and the Messenger." [4:59]. This came immediately after Allah's (S.W.T) saying: .

"O you who believe obey Allah and obey the Messenger and those in authority from among you." [4:59]. .

Therefore, any dispute between the citizens and the people in authority should be referred to Allah and His Messenger i.e. to the rule of Allah. This necessitates the presence of a judge to give judgement on this dispute, and this is the judge of Mazalim. Evidence is also derived from the action and saying of the Messenger of Allah (PBUH). However, the Messenger of Allah (PBUH) did not appoint a specific judge for the Mazalim over the whole State, nor did the Khulafa' Rashidun after him, for they used to take charge of the Mazalim themselves as was the case with Ali Ibnu Abi Talib. He did not however assign a specific time or a special style for the Mazalim; he simply dealt with a Mazlima (a case of an unjust act) as it happened, so it was just part of his general duties. This approach remained the same until the days of Abdul Malik Ibn Marwan; he was the first Khalifah to introduce a specific time for the Mazalim; and when one of these Mathalim was ambiguous to him, he used to refer it to his judge to deal with it. Then the Khalifah began to appoint deputies to look into people's complaints, and a special system was then introduced for the Mazalim, which was known as the "House of Justice" (Dar-ul-Adl). This is permissible in terms of having a special judge for Mazalim, because for anything that falls under the mandatory powers of the Khalifah, he is allowed to appoint deputies to perform that on his behalf. It is also permissible to have a specific time and a specific style because all this falls under the mubah (permissible acts). .