Kristen Stilt studies social and economic practices in the cities of Cairo and Fusṭāṭ during the thirteenth–sixteenth centuries by focusing on the actions of a particular state official, the muḥtasib, whose task was “to command right and forbid wrong”. Her text thus addresses the sensitive issue of Islamic law, its impact on medieval Muslim society, and the actions of government.
The main part of the book (pp. 73–202) describes and analyses 35 cases involving the muḥtasib in seven chapters: devotional and pious practices, crimes or offences, Christians and Jews, market regulations, markets for essential bread, currency and taxes and, finally, “keeping the peace”. These cases are for the most part mentioned in the chronicles of Makrīzī (d. 845/1442) and Ibn Īyās (fl. 930/1524), completed by other historiographical sources. The author does not specify her selection criteria (p. 7), and it remains unclear whether other chronicles mention other actions of the muḥtasib.
In an innovative approach, termed “Islamic law in action”, Stilt studies each case from the perspective of Islamic socio-religious culture and law. The sources only outline the events, and the author provides information on the social or legal context for the muḥtasib’s action in a given case (i.e. what is wrong with women sitting in public, p. 101). To do this, she makes use of two types of literature: ḥisba manuals and fiqh law books. Her accomplished introduction to the three existing Mamluk ḥisba manuals (pp. 55–65) contrasts with her sketchy explanation of the jurists’ doctrine (pp. 27–30).
The well-written text explains the biographical background of the muḥtasibs and provides ample information on “Islamic culture” in general and on Mamluk socio-economic life in particular. This information is of major interest for the non-expert reader, but insufficient as an analysis of “Islamic law in action” in a Mamluk context.
Her lack of understanding of the mechanisms of Islamic jurists’ law (fiqh) concerns first, legal casuistry and, second, the use of authoritative texts.
Muslim jurists used casuistic reasoning to differentiate cases according to independently justified sacred norms. As a consequence, very similar facts might be ruled by completely different norms. In the case of praying for relief from the plague (case 3.4), Stilt outlines different forms of prayer and fasting to explain Muslim devotional and pious practices (pp. 84 f.). For Muslim jurists, the rules of Ramadan fasting, a religious duty enforced by the muḥtasib (pp. 84 f.), differ from the conditions of non-compulsory fasting and praying for relief in distress – and from the issue of whether or not it is permissible to pray for relief from a plague (ibid.).
Another case that would also have profited from a deeper juridical analysis concerns the introduction of new copper coins. It is simply not true that the exchange of copper coins of different alloy or weight amounted to ribā (unlawful gain) (pace p. 183): “... jurists who extended ribā rules to copper coins would have required that if old coins were exchanged for new, it be done by equal weight”. As a matter of fact, the change-contract (ṣarf) allowed for exchanging different types money, be they counted or weighted, gold, silver or otherwise, of the same price (ṯaman) under the condition that the pieces be physically exchanged during the transaction. This excluded any deferred payment, which was permissible in a sale-contract (bayʿ).
With casuistry playing a primordial role in the juridical evaluation of any case, Stilt's references to fiqh-manuals are often insufficient and her statements too general.
With reference to the muḥtasib who “instructed women to stop wailing for the dead” (p. 92), Stilt argues that “[t]he jurists agreed that wailing was forbidden” (p. 99), citing the Mawṣūʿ fiqhiyya 42:49, a twentieth-century compendium. However, ḥisba-books refer to wailing “in graveyards”, not to a general interdiction. The doctrinal background of the muḥtasib’s action remains unexplained.
Among pre-modern jurists, Stilt cites the Almoravid jurist Ibn Rušd (Averroes) and Ibn Taymiyya, both known for their cross-law-school approaches. Mamluk Islamic law, however, was determined by the four Sunnī law schools and their casuistry, easily accessible in the works of contemporary jurists like Ibn Rifʿa, al-ʿAynī, Qarāfī, al-Subkī, etc.
In “thefts as threat[s] to public order” (case 9.3), Stilt discusses the punishment for “plundering” (nahb), mentioned in the source, in terms of the Quranic punishment for theft (sariqa). She qualifies the sultan's decision to hang four of the purveyors and flog the others as an emanation of his political power (siyāsa), p. 200. However, Mamluk jurists discussed “nahb” in the context of “brigandry” (muḥāraba) as one of the Quranic crimes, subject to the death penalty. The sultan's decision therefore in no way contradicts the jurists’ law.
In her effort to write an easily accessible text, the author sometimes smoothes over information and merges several sources into a simplified image. Concerning complaints against a Shaykh and his son, Stilt holds that “[t]he muḥtasib ... responded by detaining the shaykh and his son for several days” (p. 80). However, Ibn Qāḍī Shuhba reports that the muḥtasib sued the shaykh (and his son) in the court of the Qāḍī (Fatḥ al-Dīn, named three lines before). Stilt interprets the term “rassama ʿalā” (place somebody under surveillance) as imprisonment, but the context does not support this interpretation. According to Maqrīzī, the muḥtasib pursued this for a couple of days, then the judge Burhān al-Dīn sided with both of the accused (qāma maʿahumā) and saved them (in all three sources) – probably from pursuits by the muḥtasib, not from imprisonment. Six months later, the shaykh was acquitted (Ibn Ḥajar, Inbā’, pace p. 80, note 27). Any other interpretation leads to a major contradiction regarding the shaykh's detention: several days or six months. The Shaykh's imprisonment is in fact mentioned in the sources, but nine years later at the end of his life, since he died in prison (Ibn Ḥajar, Durar, 3:271, number 3091). The statement that “the chief judge could override the muḥtasib’s decision and get Zayn al-Dīn ... released” (p. 82) is therefore not confirmed by the sources.
In case 3.2, Stilt gives the impression that the muḥtasib al-Burulusī changed the call for prayer twice, once when appointed in 763/1361 and then again in late 765/mid-1364 (pp. 76–7). The later date refers, however, to al-Burulusī’s death. Maqrīzī explicitly states that the prolonged call to prayer continued to be used “until our days in the year 820” (Sulūk 3:639) – and not until “the completion of al-Maqrīzī’s books” around 845/1442 (p. 79).
The account of the events leading to the dismissal of Christian and Jewish clerks in the Mamluk administration (case 5.3, p. 119) is misleading. According to the sources, the Patriarch, head of the Christian church, was summoned to an audience with the sultan where he was confronted with reports of Muslims being humiliated in Ethiopia. On this occasion, the muḥtasib reported that Christians neglected rules about clothes and public appearance. After a long discussion with religious and legal scholars – the muḥtasib is not explicitly mentioned – it was decided that all Christians without exception should be dismissed from their administrative positions and treated with humiliation. Unless it was the muḥtasib who had summoned the Patriarch to the sultan's audience, it was not the muḥtasib of Cairo who “took an even greater initiative against Christians, this time getting the sultan involved” (p. 119).
Then the sultan ordered that the Christian secretary of the vizier, already imprisoned for some days, be beaten and paraded naked through the streets of Cairo by the muḥtasib, and then imprisoned again. Contrary to what Stilt claims, we do not know whether the muḥtasib took the initiative in imprisoning the secretary; furthermore, his public punishment was part of wider events. Ibn Taghrībirdī insists that these measures were taken to curb non-Muslim influences on the Egyptian administration (Nujūm, 14:82)
At that time, Christian and Jewish women had to wear blue or yellow buttons. However, nothing indicates that the Christian group beaten for violating the dress code by not wearing bells around their necks when entering the bathhouse were women (p. 119: “Female bathhouse attendants beat a group of women for violating these rules”), since the text uses the masculine plural form. Christians then stopped visiting bathhouses and Christian women (here explicitly the female plural) stopped going to the markets.
These remarks serve to demonstrate that not all of Stilt's observations and conclusions are supported by the sources. In addition, an analysis of the muḥtasib’s competences within the broader frame of Mamluk judicial and administrative institutions is lacking: was he “the” independent custodian of “Islamic public order” – or only an executive agent of the sultan? It may well be that 35 cases do not suffice to give a substantiated answer. But might not the lack of information on this state official within thousands of pages of historical narrative also indicate his minor historical importance – on the symbolic level of state representation?
This review could end here – were it not for the book's title Islamic Law in Action. Given to a text on the muḥtasib that reduces the implementation of fiqh rules to discretionary choices (p. 205), the title implies that exercising ḥisba (commanding right and forbidding wrong) is the (only?) way to enforce “Islamic Law”. Such a position, currently widely propagated by Wahhabism, confronts the traditional law schools. In Mamluk times, however, the prevailing opinion among Muslim jurists restricted Sharia norms to sacred, unchanging norms, which were grounded in the Quran, the Prophet's normative practice (sunna), the consensus of the Muslim community and deductive reasoning (qiyās), as transmitted within the corpus juris of Muslim fiqh. The attempt by Ibn Taymiyya and his disciple Ibn Qayyim al-Jawziyya to legitimize “governing according the sacred law” (al-siyāsa al-šarʿiyya) by broadening the means of interpretation including the ḥisba, was widely rejected by their fellow jurists. For Mamluk society, “Islamic law in action” meant primarily marriages and divorces, child-maintenance and inheritances, but also the attestation of major economic transactions in the qāḍī-courts and their professional witnesses.
In today's political and ideological context, the book's title amounts to the – tacit – siding with a vision of Islamic law stripped of its centuries-old juridical traditions. For this reason it may be assumed that Stilt does not hesitate to mix a rudimentary understanding of fiqh norms with rulings from ḥisba manuals or other normative texts, such as the so-called “Pact of ʿUmar” (i.e. p. 204). Her analysis of the juridical background is far from sufficient to sustain the claim that “[t]he rules of fiqh were not predictive of the outcomes even in the cases where they were relevant ... because their implementation depended on discretionary choices” (p. 205). If Islamic public order equals Islamic law, as Stilt seems to suppose, then the specificities of the jurists’ law and their interpretation of sacred normativity lose their importance. Without the centuries-long effort to establish a set of sacred norms, legitimised by juridical hermeneutics and practised by qāḍī-courts, however, Muslims would not have approximated any human legal system to divinely inspired (and unchanging) “Islamic sharīʿa”. In advocating an ahistorical approach to Islamic law and by restricting its application to the ḥisba and “Islamic public order”, to the exclusion of the jurists’ law, this eloquent book thus takes a dangerously simplistic turn.
However, as a study of historical cases on the muḥtasib’s mayoral activities, namely regulating the markets and the public space in general, Stilt's book certainly has the merit of providing new insights into everyday life in Mamluk Egypt.
