29. The functions of the religious institution of the caliphate.

It ³⁵⁷ has become clear that to be caliph in reality means acting as substitute for the Lawgiver (Muhammad) with regard to the preservation of the religion and the political leadership of the world.³⁵⁸ The Lawgiver was concerned with both things, with religion in his capacity as the person commanded to transmit the duties imposed by the religious laws to the people and to cause them to act in accordance with them, and with worldly political leadership in his capacity as the person in charge of the (public) interests of human civilization.

We have mentioned before that civilization is necessary to human beings and that care for the (public) interests connected with it is likewise (something necessary), if mankind is not to perish of neglect.³⁵⁹ We have also mentioned before that royal authority and its impetus suffice to create (the institutions serving) the (public) interest,³⁶⁰ although they would be more perfect if they were established through religious laws, because (the religious law) has a better understanding of the (public) interests.

Royal authority, if it be Muslim, falls under the caliphate and is one of its concomitants. (The royal authority) of a non-Muslim nation stands alone. But in any case, it has its subordinate ranks and dependent positions which relate to particular functions. The people of the dynasty are given (particular) positions, and each one of them discharges (the duties of) his position as directed by the ruler who controls them all. Thus, the power of the ruler fully materializes, and he is well able to discharge his governmental (duties).

Even though the institution of the caliphate includes royal authority in the sense mentioned, its religious character brings with it special functions and ranks peculiar to the Muslim caliphs. We are going to mention the religious functions peculiar to the caliphate, and we shall come back later on to the functions of royal government.³⁶¹

It should be known that all the religious functions of the religious law, such as prayer, the office of judge, the office of mufti, the holy war, and market supervision (hisbah) fall under the "great imamate," ³⁶² which is the caliphate. (The caliphate) is a kind of great mainspring and comprehensive basis, and all these (functions) are branches of it and fall under it because of the wide scope of the caliphate, its active interest in all conditions of the Muslim community, both religious and worldly, and its general power to execute the religious laws relative to both (religious and worldly affairs).

The leadership of prayer is the highest of (all) these functions and higher than royal authority as such, which, like (prayer), falls under the caliphate. This is attested by the (circumstance) that the men around Muhammad deduced from the fact that Abu Bakr had been appointed (Muhammad's) representative as prayer leader, the fact that he had also been appointed his representative in political leadership. They said: "The Messenger of God found him acceptable for our religion. So, why should we not accept him for our worldly affairs?" ³⁶³ If prayer did not rank higher than political leadership, the analogical reasoning would not have been sound.

If this is established, it should be known that city mosques are of two kinds, great spacious ones which are prepared for holiday ³⁶⁴ prayers; and other, minor ones which are restricted to one section of the population or one quarter of the city and which are not for the generally attended prayers. Care of the great mosques rests with the caliph or with those authorities, wazirs, or judges, to whom he delegates it. A prayer leader for each mosque is appointed for the five daily prayers, the Friday service, the two festivals, the eclipses of (the sun and the moon), and the prayer for rain. This (arrangement) is obligatory only in the sense that it is preferable and better. It also serves the purpose of preventing the subjects from usurping one of the duties of the caliphs con­nected with the supervision of the general (public) interests. The (arrangement) is considered necessary by those who consider the Friday service necessary, and who, therefore, consider it necessary to have a prayer leader appointed.

Administration of the mosques that are restricted to one section of the population or to one quarter of the city rests with those who live nearby. These mosques do not require the supervision of a caliph or ruler.

The laws and conditions governing the office of (prayer leader) and the person entrusted with it are known from the law books. They are well explained in the books on administration (al-Ahkam as-sultaniyah) by al-Mawardi ³⁶⁵ and other authors. We shall not, therefore, mention them at any length. The first caliphs did not delegate the leadership of prayer. The fact that certain of the caliphs were stabbed in the mosque during the call to prayer, being expected (by the assassins to be there) at the prayer times, shows that the caliphs personally led the prayer and were not represented by others. This custom was continued by the Umayyads later on. They considered it their exclusive privilege and a high office to lead the prayer. The story goes that 'Abd-al­Malik said to his doorkeeper (hajib): "I have given you the office of keeper of my door, (and you are entitled to turn away anyone) save these three persons: the person in charge of food, because it might spoil if kept back; the person in charge of the call to prayer, because he calls the people to God; and the person in charge of the mails, because delaying the mail might mean the ruin of the remote provinces." ³⁶⁶

Later, when the nature of royal authority, with its qualities of harshness and unequal treatment of the people in their religious and worldly affairs, made itself felt, (the rulers) chose men to represent them as prayer leaders. They reserved for themselves the leadership of prayer at certain times and on general (festive) occasions, such as the two holidays and the Friday service. This was for purposes of display and ostentation. Many of the 'Abbasid and 'Ubaydid­(-Fatimid) (caliphs) did this at the beginning of their re­spective dynasties.

(The office of mufti)

As to the office of mufti, the caliph must examine the religious scholars and teachers and entrust it only to those who are qualified for it. He must help them in their task, and he must prevent those who are not qualified for the office from (becoming muftis). (The office of mufti) is one of the (public) interests of the Muslim religious community. (The caliph) has to take care, lest unqualified persons undertake to act as (mufti) and so lead the people astray.

Teachers have the task of teaching and spreading religious knowledge and of holding classes for that purpose in the mosques. If the mosque is one of the great mosques under the administration of the ruler, where the ruler looks after the prayer leaders, as mentioned before, teachers must ask the ruler for permission to (teach there). If it is one of the general mosques, no permission is needed. However, teachers and muftis must have some restraining influence in themselves that tells them not to undertake something for which they are not qualified, so that they may not lead astray those who ask for the right way or cause to stumble those who want to be guided. A tradition says: "Those of you who most boldly approach the task of giving fatwas are most directly heading toward hell." ³⁶⁷ The ruler, therefore, has supervision over (muftis and teachers) and can give, or deny, them permission to exercise their functions, as may be required by the public interest.

(The office of judge)

The office of judge is one of the positions that come under the caliphate. It is an institution that serves the purpose of settling suits and breaking off disputes and dissensions. It proceeds, however, along the lines of the religious laws laid down by the Qur'an and the Sunnah. Therefore, it is one of the positions that belongs to the caliphate and falls under it generally.

At the beginning of Islam, the caliphs exercised the office of judge personally. They did not permit anyone else to function as judge in any matter. The first caliph to charge someone else with exercise of (the office of judge) was 'Umar. He appointed Abu d-Darda' ³⁶⁸ to be judge with him in Medina, he appointed Shurayh as judge in al-Basrah, and Abu Musa al-Ash'ari as judge in al-Kufah. On appointing (Abu Musa), he wrote him the famous letter that contains all the laws that govern the office of judge, and is the basis of them. He says in it:³⁶⁹

Now, the office of judge is a definite religious duty and a generally followed practice.

Understand the depositions that are made before you, for it is useless to consider a plea that is not valid.

Consider all the people equal before you in your court and in your attention, so that the noble will not expect you to be partial and the humble will not despair of justice from you.

The claimant must produce evidence; from the de­fendant, an oath may be exacted.

Compromise is permissible among Muslims, but not any agreement through which something forbidden would be permitted, or something permitted forbidden.

If you gave judgment yesterday, and today upon re­consideration come to the correct opinion, you should not feel prevented by your first judgment from retracting; for justice is primeval, and it is better to retract than to persist in worthlessness.

Use your brain about matters that perplex you and to which neither Qur'an nor Sunnah seem to apply. Study similar cases and evaluate the situation through analogy with those similar cases.

If a person brings a claim, which he may or may not be able to prove, set a time limit for him. If he brings proof within the time limit, you should allow his claim, otherwise you are permitted to give judgment against him. This is the better way to forestall or clear up any possible doubt.

All Muslims are acceptable as witnesses against each other, except such as have received a punishment ³⁷⁰ provided for by the religious law, such as are proved to have given false witness, and such as are suspected (of par­tiality) on (the ground of) client status or relationship, for God, praised be He, forgives because of oaths [?] ³⁷¹ and postpones (punishment) in face of the evidence.

Avoid fatigue and weariness and annoyance at the litigants.

For establishing justice in the courts of justice, God will grant you a rich reward and give you a good reputation. Farewell.

End of 'Umar's letter.

Although the personal exercise of the office of judge was to have been the task of (the caliphs), they entrusted others with it because they were too busy with general politics and too occupied with the holy war, conquests, defense of the border regions, and protection of the center. These were things which could not be undertaken by anyone else because of their great importance. They considered it an easy matter to act as judge in litigation among the people and, therefore, had themselves represented by others in the exercise of (the office of judge), so as to lighten their own (burden). Still, they always entrusted the office only to people who shared in their group feeling either through (common) descent or their status as clients. They did not entrust it to men who were not close to them in this sense.

The laws and conditions that govern the institution (of the judiciary) are known from works on jurisprudence and, especially, from books on administration (al-Ahkam as­sultaniyah). In the period of the caliphs, the duty of the judge was merely to settle suits between litigants. Gradually, later on, other matters were referred to them more and more often as the preoccupation of the caliphs and rulers with high policy grew. Finally, the office of judge came to include, in addition to the settling of suits, certain general concerns of the Muslims, such as supervision of the property of insane persons, orphans, bankrupts, and incompetents who are under the care of guardians; supervision of wills and mortmain do­nations and of the marrying of marriageable women without guardians (wall) to give them away ³⁷² according to the opinion of some authorities; supervision of (public) roads and buildings; examination of witnesses, attorneys, and court substitutes,³⁷³ to acquire complete knowledge and full acquaintance relative to their reliability or unreliability. All these things have become part of the position and duties of a judge.

Former caliphs had entrusted the judge with the supervision of torts.³⁷⁴ This is a position that combines elements both of government power and judicial discretion. It needs a strong hand and much authority to subdue the evildoer and restrain the aggressor among two litigants. In a way, it serves to do what the judges and others are unable to do. It is concerned with the examination of evidence, with punish­ments not foreseen by the religious law, with the use of indirect and circumstantial evidence, with the postponement of judgment until the legal situation has been clarified, with attempts to bring about reconciliation between litigants, and with the swearing in of witnesses. This is a wider field than that with which the judges are concerned.

The first caliphs exercised that function personally until the days of the 'Abbasid al-Muhtadi. Often, they also dele­gated it to their judges. 'All,³⁷⁵ for instance, (delegated torts) to his judge, Abu Idris al-Khawlani; ³⁷⁶ al-Ma'min to Yahya b. Aktham; ³⁷⁷ and al-Mu'tasim to Ibn Abi Du'id.³⁷⁸ They also often entrusted the judges with leadership of the holy war in summer campaigns. Yahyi b. Aktham thus went on a summer campaign against the Byzantines in the days of al-Ma'mun. The same was done by Mundhir b. Sa'id ,³⁷⁹ judge under the Spanish Umayyad 'Abd-ar-Rahman an-Nasir. Making appointments to these functions was the task of the caliphs or of those to whom they entrusted it, such as a min­ister to whom full powers were delegated, or a ruler who had gained superiority.

(The police)

In the 'Abbasid dynasty and in the dynasties of the Umayyads in Spain and under the 'Ubaydid(-Fatimids) in Egypt and the Maghrib, the control of crimes and imposition of punishments required by the religious law was also a special (task) and was delegated to the chief of police (sahib ash­shurtah).³⁸⁰ The police is another religious function that under these dynasties belonged to the positions connected with the religious law. Its field is somewhat wider than that of the office of judge. It makes it possible for suspects to be brought into court. It decides upon preventive punishments before crimes have been committed. It imposes the punishments required by the religious law where they are due, and determines compensation in cases of bodily injury where the law of talion applies. It imposes punishments not provided for by the religious law, and provides for corrective measures against those who did not execute the crimes (they planned).

The proper functions of the police and of torts were forgotten during the dynasties in which the nature of the caliphate was no longer remembered. Torts were transferred to the ruler whether he had been delegated by the caliph to take care of them or not. The police function was split into two parts. One of them was that of taking care of suspects, imposing the punishments required by the religious law, and amputating (criminals condemned for crimes punished by the amputation of a limb), and seeing to it that the laws of talion were applied where appropriate. For these duties, the dynas­ties appointed an official who exercised his office in the service of the political (establishment) without reference to the religious laws. (That official) was sometimes called wall (governor), and sometimes shurtah (police). The remaining (former police functions dealt with) punishments not provided for by the religious law and the imposition of punishments for crimes fixed by the religious law. They were combined with the functions of judge previously mentioned. They became part of the official duties of the office (of judge), and have so remained down to this time.

This position was taken away from the people who shared in the group feeling of the dynasty. When there was a religious caliphate, the caliph entrusted the function, since it was a religious office, only to Arabs or to clients-allies, slaves, or followers-who shared in their group feeling and upon whose ability and competence to execute the tasks they could rely.

When the character and appearance of the caliphate changed and royal and government authority took over, the religious functions lost to some degree their connection with (the powers in control), in as much as they did not belong among the titles and honors of royal authority. The Arabs later on lost all control of the government. Royal authority fell to Turkish and Berber nations. These caliphal functions, as far as their character and the group feeling that belonged to them was concerned, were even more remote from them (than from their predecessors). This was because the Arabs had been of the opinion that the religious law was their religion and that the Prophet was one of them and that his religious laws distinguished them in their thought and action from the (other) nations. The non-Arabs did not think that way. If they had some respect for (these functions) it was merely because they had become Muslims. Therefore, they came to entrust them to men outside their own group who had become familiar with (these functions) in the dynasties of former caliphs. Under the influence of the luxury of the dynasties to which they had been accustomed for hundreds of years, these people had forgotten the old desert period and desert toughness. They had acquired (the habits of) sedentary culture, luxurious customs, tranquility, and lack of ability to take care of themselves. In the kingdoms that succeeded the (rule of the) caliphs, the functions of the caliphate became the prerogative of this kind of urban weakling. They were no longer exercised by people of prestige, but by persons whose qualifications were limited, both by their descent (which was different from that of the men in power) and by the (habits of) sedentary culture to which they had become accustomed. They were despised as sedentary people are, who live submerged in luxury and tranquility, who have no connection with the group feeling of the ruler, and who depend on being protected (by others). Their position in the dynasty derives from the fact that (the dynasty) takes care of the Muslim religious community and follows the religious laws, and that these persons know the laws and can interpret them through legal decisions (fatwa). They have no standing in the dynasty because they are honored as personalities. Their standing merely reflects an affectation of respect for their position in the royal councils, where it is desired to make a show of reverence for the religious ranks. They do not have executive authority to make decisions in (these councils). If they participate in (the making of decisions), it is just as a matter of form, with no reality behind it. Executive authority in reality belongs to those who have the power to enforce (their decisions). Those who do not have the power (to enforce their decisions) have no executive authority. They are merely used as authorities on religious law, and their legal decisions (fatwa) are accepted. This is indeed the fact. God gives success.

Some scholars think that this is not right, and that rulers who keep jurists and judges out of (their) councils act wrongly, since Muhammad said, "The scholars are the heirs of the prophets." ³⁸¹ However, it should be known that it is not as (such scholars) thinks³⁸² Royal and governmental authority is conditioned by the natural requirements of civilization; were such not the case, it would have nothing to do with politics. The nature of civilization does not require that (jurists and scholars) have any share (in authority). Advisory and executive authority belongs only to the person who controls the group feeling and is by it enabled to exercise authority, to do things or not do them. Those who do not have group feeling, who have no control over their own affairs, and who cannot protect themselves, are dependent upon others. How, then, could they participate in councils, and why should their advice be taken into consideration? Their advice as derived from their knowledge of the religious laws (is taken into consideration) only in so far as they are consulted for legal decisions (fatwa). Advice on political matters is not their province, because they have no group feeling and do not know the conditions and laws which govern (group feeling). To pay honor to (jurists and scholars) is an act of kindness on the part of rulers and amirs. It testifies to their high regard for Islam and to their respect for men who are in any way concerned with it.

To understand Muhammad's statement, "The scholars are the heirs of the prophets," it should be realized that the jurists of this time and of the recent past have represented the religious law mainly by ruling on ritual practices and questions of mutual dealings (among Muslims). They make (such rulings) for those who need them to be able to act in accordance with them. This has been the goal of (even) the greatest among (them). They are identified with (the religious law) only to a limited extent (and are known to be experts in it only) under certain conditions. The early Muslims, as well as pious and austere Muslims, on the other hand, represented the religious law in (all its aspects) and were identified with (all of) it and known to have had a thorough (practical) knowledge of its ways. People who represent the religious law without (recourse to the process of) transmis­sion, may (be called) "heirs." Such, for instance, were the men mentioned in al-Qushayri's Risalah.³⁸³ People who combine the two things ³⁸⁴ are religious scholars, the real "heirs," such as the jurists among the men of the second generation, the ancient Muslims, and the four imams,³⁸⁵ as well as those who took them as models and followed in their steps. In the case of a Muslim who has only one of the two things, the better claim to be called an "heir" goes to a pious person rather than to a jurist who is not pious. The pious man has inherited a quality. The jurist who is not pious, on the other hand, has not inherited anything. He merely makes rulings for us as to how to act. This applies to the majority of contemporary (jurists) ³⁸⁶ "except those who believe and do good, and they are few." ³⁸⁷

The position of official witness (`adalah)³⁸⁸

(The position of official witness) is a religious position depending on the office of judge and connected with court practice. The men who hold it give testimony-with the judge's permission-for or against people's (claims). They serve as witnesses when testimony is to be taken, testify during a lawsuit, and fill in the registers which record the rights, possessions, and debts of people and other (legal) transactions. This is the significance of the position.

We ³⁸⁹ have mentioned "the judge's permission" because people may have become confused, and (then) only the judge knows who is reliable and who not. Thus, in a way, he gives permission (and he does so only) to those of whose probity he is sure, so that people's affairs and transactions will be properly safeguarded.

The prerequisite governing this position is the incumbent's possession of the quality of probity (`adalah) according to the religious law, his freedom from unreliability. Furthermore, he must be able to fill in the (court) records and make out contracts in the right form and proper order and correctly, (observing) the conditions and stipulations governing them from the point of view of the religious law. Thus, he must have such knowledge of jurisprudence as is necessary for the purpose. Because of these conditions and the experi­ence and practice required, (the office) came to be restricted to persons of probity. Probity came to be (considered) the particular quality of persons who exercise this function. But this is not so. Probity is one of the prerequisites qualifying them for the office.

The judge must examine their conditions and look into their way of life, to make sure that they fulfill the condition of probity. He must not neglect to do so, because it is his duty to safeguard the rights of the people. The responsibility for everything rests with him, and he is accountable for the outcome.

Once (official witnesses) have been shown clearly to be qualified for the position, they become (more) generally useful (to the judges). (They can be used) to find out about the reliability of other men whose probity is not known to the judges, because of the large size of cities and the confused conditions (of city life). (It is necessary to know their reliability) because it is necessary for judges to settle quarrels among litigants with the help of reliable evidence. In assessing the reliability of (the evidence), they usually count upon these professional witnesses. In every city, they have their own shops and benches where they always sit, so that people who have transactions to make can engage them to function as witnesses and register the (testimony) in writing.

The term "probity" (adalah) thus came to be used both for the position whose significance has just been explained and for "probity (reliability)" as required by the religious law, which is used paired with "unreliability." The two are the same, but still, they are different. And God knows better.

Market supervision (bisbah) and mint

The office of market supervisor (hisbah) is a religious position. It falls under the religious obligation "to command to do good and forbid to do evil," which rests with the person in charge of the affairs of the Muslims. He appoints to the position men whom he considers qualified for it. The obligation thus devolves upon the appointee. He may use other men to help him in his job. He investigates abuses and applies the appropriate punishments and corrective measures. He sees to it that the people act in accord with the public interest in the town (under his supervision). For instance, he prohibits the obstruction of roads. He forbids porters and boatmen to carry too heavy loads. He orders the owners of buildings threatening to collapse, to tear them down and thus remove the possibility of danger to passersby. He prevents teachers in schools and other places from beating the young pupils too much.³⁹⁰ His authority is not restricted to cases of quarrels or complaints, but he (has to) look after, and rule on, everything of the sort that comes to his knowledge or is reported to him. He has no authority over legal claims in general but he has authority over everything relating to fraud and deception in connection with food and other things and in connection with weights and measures. Among his duties is that of making dilatory debtors pay what they owe, and similar things that do not require hearing of evidence or a legal verdict, in other words, cases with which a judge would have nothing to do because they are so common and simple. (Such cases,) therefore, are referred to the person who holds the office of market supervisor to take care of them.

The position of (market supervisor), consequently, is subordinate to the office of judge. In many Muslim dynasties, such as the dynasties of the `Ubaydid(-Fatimids) in Egypt and the Maghrib and that of the Umayyads in Spain, (the office of market supervisor) fell under the general jurisdiction of the judge, who could appoint anyone to the office at discretion. Then, when the position of ruler became separated from the caliphate and when (the ruler) took general charge of all political matters, the office of market supervisor became one of the royal positions and a separate office.

The mint ³⁹¹

The office of the mint is concerned with the coins used by Muslims in (commercial) transactions, with guarding against possible falsification or substandard quality (clipping) when the number of coins (and not the weight of their metal) is used in transactions, and with all else relating to (monetary matters.) Further, the office is concerned with putting the ruler's mark upon the coins, thus indicating their good quality and purity. The mark is impressed upon the coins with an iron seal that is especially used for the purpose and that has special designs (legends) on it. It is placed upon the dinar and the dirham after their proper weight has been established, and is then beaten with a hammer until the de­signs have been impressed upon the coin. This then indicates the good quality of the coin according to the best methods of melting and purification customary among the inhabitants of a particular region under the ruling dynasty. (The metal standard) is not something rigidly fixed but depends upon independent judgment. Once the inhabitants of a particular part or region have decided upon a standard of purity, they hold to it and call it the "guide" (imam) or "standard" ('iyar). They use it to test their coins. If they are sub­standard, they are bad.

Supervision of all these things is the duty of the holder of the office (of the mint). In this respect, it is a religious office and falls under the caliphate. It used to belong to the general jurisdiction of the judge, but now has become a separate office, as is the case with that of market supervision.

This is all that is to be said about caliphal positions. There were other positions that disappeared when the things that were their concern disappeared. Further, there are posi­tions that became positions of rulers other than the caliph. Such are the positions of amir and wazir, and those concerned with warfare and taxation. They will be discussed later on in their proper places.

The position concerned with (prosecution of) the holy war ceased to exist when the holy war was no longer waged, save in a few dynasties which, as a rule, classify the laws governing it under the governmental (and not the caliphal) authority. Likewise, the office of marshal of the nobility consisting of relatives of the caliphs, whose descent gives them a claim to the caliphate or to an official pension, disap­peared when the caliphate ceased.

In' general, the honors and positions of the caliphate merged with those of royal authority and political leadership. This is the present situation in all dynasties.

God governs all affairs in His wisdom.