Harvard Middle Eastern and Islamic Review 7 (2006), 41–62

Between Public and Private:

An Examination of Ḥisba Literature

Yaron Klein

In its broad deinition, the ḥisba is the obligation incumbent on every Mus-
lim to “command right and forbid wrong” (al-amr bi-l-maʿrūf wa-l-nahy
ʿan al-munkar) whenever he or she encounters them. Over time, the ḥisba
duty and its executor, the muḥtasib, also came to be associated with a func-
tionary appointed by the state to supervise public morals.1 The muḥtasib,
in this restricted meaning, became one of the most important institutions in
the social fabric of cities in the medieval Islamic world. Offenses under the
jurisdiction of the ḥisba duty, whether practiced by appointed muḥtasibs
or by private individuals, do not include all violations of the law. Instead,
the ḥisba is limited to offenses committed “in the open”—ones witnessed
by the muḥtasib personally but “without spying,” that is, without an active
search for transgressions committed beyond public view. Thus, by deini-
tion, the muḥtasib’s sole jurisdiction is the public space, and his right to
interfere and punish is limited to offenses committed in public.
What precisely is encompassed in this public realm and what are its
demarcations? The answers to these questions are anything but straightfor-
ward. Ḥisba texts offer a wealth of detail about the different urban spaces
in which the muḥtasib is instructed to intervene or to refrain from doing
so. Indeed, the compilers of these texts have provided us with a irst-hand
perspective concerning the spaces they regarded as public and those they
regarded as private. But an examination of the categories of “public” and
“private” in the voluminous literature on ḥisba suggests that they are far

Yaron Klein is a doctoral candidate at Harvard University, working on music,

musicians, and musical instruments in medieval Arabic literature. His article
“Imagination and Music: Takhyīl and the production of music in al-Fārābī’s
Kitāb al-mūsīqī al-kabīr” is forthcoming in Takhyil: The Imaginary in Classical
Arabic Poetics (Volume 2: Studies), Oxford: Programme for Arabic Poetry and
Comparative Poetics at the St John’s College Research Centre.
42 Klein

from irm and stable. Instead, I argue, these spheres are luid and, more-
over, they co-exist in relations of both mutual inluence and competition.
Likewise, the texts reveal different kinds of public and private spaces. The
mosque, the market, and the cemetery are all public places, but very differ-
ent in their use and in the sense of publicness. The muḥtasib’s role, I further
argue, is more than merely a regulator of speciic urban areas, whether pri-
vate or public. Rather, he serves as a guardian of public space, as conceived
primarily by jurists, preventing it from being turned into private space by
either individuals or social groups. Thereby, the muḥtasib himself partici-
pates in a complex process of negotiating the public sphere.
This paper then is a preliminary investigation of the conceptions of pri-
vate and public spaces in the urban contexts of medieval Islamic cities in the
Middle East and North Africa through the corpus of work on ḥisba. I con-
centrate on a few urban spaces, as well as several activities, that reveal the
tension between the private and the public. The sources’ discussions of the
physical spaces and circumstances in which the muḥtasib is allowed to act
serve as a “map” that delineates the complicated boundaries between public
and private. These boundaries, as we shall see, are important constructs for
social life; yet they are not always stable and ixed.

Sources of Ḥisba Work

The literature on ḥisba and the muḥtasib can be divided into two major
groups. The irst is the theoretical literature concerned primarily with ju-
ridical, moral, and religious connotations of ḥisba as opposed to its practi-
cal applications.2 The works under this category discuss the ḥisba duty and
its religious underpinning, the precept of “commanding right and forbid-
ding wrong” (al-amr bi-l-maʿrūf wa-l-nahy ʿan al-munkar). The second
is a unique genre of prescriptive-legal literature written to instruct the ap-
pointed muḥtasibs. In contemporary scholarship, this genre is commonly
labeled ḥisba “manuals.”
Ḥisba manuals are texts written primarily by jurists and scholars from
the religious establishment in which they specify in detail the duties of the
muḥtasib. The works pertain, no doubt, to legal discussions, and are con-
cerned not only with the practical side of the duty but also with theoretical
issues (such as the origins of the “commanding right” duty in Qurʾanic vers-
es and Prophetic traditions). Nevertheless, these works are written for very
practical reasons, to be read by people interested in practical solutions. The
 Public and Private in Ḥisba 43

texts are directed primarily to an audience consisting of muḥtasibs seeking

guidance on how to operate in speciic instances, or of judges who super-
vise such muḥtasibs. Therefore, the ḥisba manuals should not be regarded
simply as normative judicial works that relect speculative-juridical discus-
sions and prescribe ideal-normative behavior, but rather as texts intimately
in contact with real-life practices.
Furthermore, the manuals are to a large extent a collection of “don’ts”
that, for the historian, constitutes an excellent guide to the realities the writ-
ers are addressing.3 Since the prohibitions affect a very wide range of social
actors, they provide a unique picture of the actual practices of everyday life
and of social groups that are often neglected by other sources.
Of course, the manuals also have drawbacks when it comes to histori-
cal research. First, they are a literary genre that maintains a strong textual
connection to previous works of the genre. Although different manuals are
written in different periods and geographical areas, and occasionally stress
different points and views relevant to their time and place, they rely largely
on previous ḥisba works and, at times, quote extensively from previous
literature. Thus, for example, the important manuals of Ibn Bassām (Egypt
or Syria, H. eighth/AD thirteenth–fourteenth century) and Ibn al-Ukhuwwa
(Egypt, d. 729/1329) both rely heavily on a previous manual from the end of
the Fāṭimid period/beginning of the Ayyubid period, written by al-Shayzarī
(d. ca. 589/1193). All three quote extensively al-Māwardī’s (d. 450/1058)
discussion of ḥisba in his Al-Aḥkām al-sulṭāniyya, he being a Baghdādī
jurist of the Buyid period.
This characteristic of the manuals makes it dificult for the reader who
consults a ḥisba text to know which features are part of the traditional stock
of material and which are speciic to a particular time and place. One should
also bear in mind that the picture arrived at by examining the manuals is
seen through the eyes of a speciic group in society, usually jurists and peo-
ple afiliated with the religious establishment. Nevertheless, it is the nature
of every historical document to be biased, and the duty of the historian to
extract as much as possible from it.
The sources used for this study are taken from an extended period
of time and from a variety of geographical areas. The earliest source is
Al-Naẓar wa-l-aḥkām fī jamīʿ aḥwāl al-sūq by the Andalusian Yaḥyā b.
ʿUmar (d. 288/901), probably the oldest extant ḥisba manual; the latest is
Al-ḥisba fī l-Islām by the Syrian Ibn Taymiyya (d. 728/1328). Using this
wide selection, I wish to draw a broad picture of different conceptions of
“private” and “public” that will be relevant to many pre-modern Islamic
44 Klein

societies. However, the conclusions do not suggest an explanatory formula

that can be applied to any period or place.

The “Private” and the “Public”

It was reported that ʿUmar [b. al-Khaṭṭāb] patrolled Medina one night,
and heard from within a house the sound of a man singing. He climbed
on [the house’s] wall, and found the man in the company of a woman,
[drinking] wine. He then said: “O Enemy of God! Did you think that
God will hide you while you are sinning as you are?” The man said: “O
Commander of the Faithful, do not make haste, for if I have disobeyed
God once, you have disobeyed Him three times. God has said: ‘Do not
spy’ (Qurʾan, 49:12), and you have spied; and God has said: ‘It is not
righteous that ye enter houses by the backs thereof’ (Qurʾān, 2:189), and
you have climbed on my wall; and God has said: ‘Enter not houses other
than yours’ (Qurʾan, 24:27), and you have entered my house without per-
mission, and without greeting with “al-salāmu ʿalaykum” (as required).”
Then ʿUmar said: “Please forgive me,” and the man said: “I will. By God,
O Commander of the Faithful, if you forgive me, I will never repeat such
an offense.” ʿUmar forgave him, departed and left.4

Medieval writers deine the ḥisba duty as a religious duty of “com-

manding right and forbidding wrong.” The muḥtasib who fulills the duty
is not instructed to punish every act of wrongdoing, but only those that are
committed in front of him, in public. Al-Māwardī (d. 450/1058), in de-
ining the term ḥisba in Al-Aḥkām al-sulṭāniyya, asserts, “It is the com-
manding of right when it is openly neglected (idhā ẓahara tarkuhu) and
the forbidding of wrong when [the] action is committed in the open (idhā
ẓahara iʿluhu).”5 Ibn al-Ukhuwwa quotes al-Māwardī’s deinition of the
ḥisba duty at the beginning of his comprehensive ḥisba manual, Maʿālim
al-qurba, and stresses that the muḥtasib should look for “apparent wrong-
doings,” or “wrongdoings seen in public” (munkarāt ẓāhira).6 Later in his
work, he argues that the muḥtasib “should rely only on what is apparent to
him (mā yaẓharu lahu) and what he sees for himself.”7 Likewise, al-Ghazālī
(d. 505/1111), in Iḥyāʾ ʿulūm al-dīn, argues that the ḥisba is applied only
to a wrongdoing (munkar) that takes place in the present and is apparent
to the muḥtasib “without spying” (kull munkar mawjūd fī l-ḥāl ẓāhir li-l-
muḥtasib bi-ghayr tajassus).8
The manuals discuss at length the question of the public nature of the
 Public and Private in Ḥisba 45

offense, adducing Prophetic traditions as proof-texts. Ibn al-Ukhuwwa as-

serts that the muḥtasib should not investigate (yabḥathu) “anything forbid-
den that is not apparent” (mā lam yaẓhar). Thus, even if the muḥtasib is sure
that a curtain before him hides something forbidden, he has no authority to
lift that curtain; only when the forbidden object becomes apparent can the
muḥtasib intervene.9
The treatises limit the muḥtasib’s jurisdiction to what is committed in
public. The muḥtasib can act only in cases in which he has absolute certain-
ty that an offense is taking place. Herein lies the main difference between
the authority of the muḥtasib and that of the qadi (the judge): the qadi is
allowed to issue rulings in cases in which an offense was not committed in
front of him, including those carried out in private.10
The muḥtasib, then, is not allowed to spy on people. If he sees an of-
fense in public he may act against it, and is even obligated to do so, but
he is not allowed to investigate any offense not committed in public. This
restriction has only a few exceptions, in which the muḥtasib is allowed to
cross into the private domain and rebuke the perpetrators of an offense. For
example, if he learns from a reliable source that a crime such as murder or
unlawful sex (zinā) is about to take place, he is allowed to pry. Ibn al-Ukhu-
wwa asserts that any offense less grave than these two ḥadd offenses does
not justify spying or “lifting the curtain over it.”11
Michael Cook suggests that the theological rationale behind the distinc-
tion between offenses committed in private and those committed in public
is that the former affect only the wrongdoer himself or herself, whereas the
latter harm the public at large. He quotes a tradition reported on the author-
ity of the companion Abū Hurayra: “A hidden wrongdoing (khaṭīʾa) will
only harm the one committing it. But if it becomes public (idhā ẓaharat),
and is not changed, it will hurt the community (al-ʿāmma).”12 As Cook
puts it, there is a gray area between knowledge and ignorance. At times,
even though the offense is not being committed right before one’s eyes,
one might still have a high degree of conidence about what is taking place.
As elaborated below, the sound of music heard from outside a home is such
a case. When performed in private, music is not “apparent” to the public in
the full sense of the term; yet, as long as it is heard, it is not hidden, either.
To conclude, the muḥtasib acts only when the wrongdoing is commit-
ted “in public.” But there is no full correlation between the public nature of
an act and its location in a public space as opposed to a private dwelling.
When a certain act committed in private invades the public consciousness,
the borders between public and private become blurred; as in the case of
sound, the public expands into the private.
46 Klein

Transgressing Physical Boundaries: Music

The literature on the ḥisba duty includes interesting sections dedicated to
music-related offenses against which the muḥtasib is expected to act. These
offenses include the public display of musical instruments, either for the
purposes of use or sale, and the production of music either by singing or
playing musical instruments. The discussions of the circumstances and ven-
ues in which the muḥtasib is allowed to intervene provide a fascinating case
study of the relations between private and public.
Legal discussions of music-related offenses include the question of
when such offenses should be considered “apparent”—that is, public—and
when they should be treated as “concealed”—that is, private. The discus-
sions focus on two main issues: the irst is the displaying of musical instru-
ments. Here, the main issue is establishing the conditions for an instrument
to be considered “apparent.” There are cases in which a musical instrument
is present in public in an ambiguous way; for example, when it is covered.
Many jurists consider the public display of covered musical instruments as
belonging to offenses of the “concealed” and “private” category and thus
exclude it from the muḥtasib’s jurisdiction. The second issue related to
music concerns the circumstances in which a muḥtasib may intervene to
prevent and punish the playing of musical instruments. By its very nature,
music transgresses physical boundaries. Sound is carried from where it is
produced and reaches the ears of a listener located elsewhere. Thus, music
played indoors can reach the ears of people located outdoors. This bound-
ary-crossing quality of music poses the legal problem of whether or not the
muḥtasib should be allowed to intervene when music is produced in the
concealed territory of a private residence but reaches outside listeners’ ears.
Should such an offense still be considered “concealed” and thus private?
Before we discuss the different views on this issue, a few preliminary re-
marks on the very opposition to music are necessary.
Jurists from all the legal schools have over time expressed opposition to
music, adducing Prophetic traditions to support their positions. This opposi-
tion was by no means uniform. Jurists from different schools held different
views about the kinds of music that should be banned and those that should
be tolerated. These debates often relected hostility between Sui and non-
Sui jurists, the details of which are beyond the scope of this article.13 None-
theless, a few general remarks about legal writings on music are necessary.
First, one should note that in medieval Arabic writings there is no
single term analogous to the modern Western category of “music.” Vari-
ous practices that we nowadays include under “music” were discussed in
 Public and Private in Ḥisba 47

medieval Arabic works under different categories. For our purposes, two
central terms are relevant: samāʿ, literally, “listening” or “audition”—and,
and by extension, “the music listened to”—refers mainly to music in the
mystical context;14 ghināʾ designates what is often referred to as “art mu-
sic,” both instrumental and vocal. Much of the opposition of jurists to music
was directed toward “art music” and musical instruments, ālāt al-malāhī,
literally “instruments of amusements.”15 “Art music” was practiced in a
variety of contexts related to court culture, in taverns, and in other gather-
ings where wine was consumed. “Non-amusement” music was practiced in
religious contexts among the Sui orders that used music and dance in their
dhikr ceremonies.16 Yet another practice, which today we might classify as
a “musical” practice, is the lamentation over the dead, both at funerals and
in cemeteries.17
The opposition to musical practices could be seen in the works of tra-
ditionalists and legal writers from an early stage. An early example is Ibn
Abī al-Dunyā (d. 281/894), whose “Censure of Amusement Instruments”
(Dhamm al-malāhī) is one of the irst treatises devoted to the reprehen-
sion of musical instruments. In his treatise, Ibn Abī al-Dunyā condemns
music as a diversion from the life of devotion and piety.18 However, not all
jurists considered all types of music and musical instruments to be on the
same level. Some regarded string instruments such as the ʿūd and its family,
which were traditionally used in “art music,” as forbidden, but they toler-
ated other instruments such as the frame-drum (daff) and lutes (yarāʿ and
shabbāba), which were more closely associated with mystical music.19
The jurists’ writings about music often discuss music’s effects as a justi-
ication for their position. Especially telling is al-Ghazālī’s pronouncements
about the effects music has on the listener. For him, samāʿ and ghināʾ are
means of evoking what is truly in one’s heart; under their inluence, the heart
reveals its true content. This mystical interpretation is used by al-Ghazālī
to justify the use of music in certain circumstances, mainly in the mystical
context. For al-Ghazālī, music cannot provoke things that did not already
exist in one’s heart.20 One can wonder whether this Sui argument—accord-
ing to which music brings out into the open what was previously hidden—is
one of the reasons for the harsh opposition to music by many non-Sui reli-
gious writers, who seem to maintain that certain things should be kept in the
private domain and hidden rather than released. Of course, music is used by
Suis to invoke a state of trance through which they cross from their worldly
state to another. Music then is regarded as something that changes the bor-
ders of inward and outward, and therefore is perceived by some religious
scholars as dangerous.
48 Klein

As for the muḥtasib’s duties regarding music, they are restricted to of-
fenses occurring in the public space or affecting it. By far the most com-
monly discussed topic is the display and sale of musical instruments. Ibn
al-Ukhuwwa refers to the offense of “displaying in public (iẓhār) forbid-
den musical instruments” and instructs the muḥtasib to break these instru-
ments into pieces and punish the offender.21 Al-Ghazālī orders the destruc-
tion of any “unlawful instruments” displayed in the market, a category that
includes, in addition to musical instruments, “pictures of animals that are
being sold on holidays for children.”22
At times, the unlawful instrument is present in public but in a concealed
manner, as when the musical instrument is carried covered.23 Al-Ghazālī
believes that such cases do not satisfy the condition of an offense commit-
ted “in the open”’ or “in public” (iẓhār), which are the preconditions of the
ḥisba. Although the muḥtasib might suspect that the covered object is a
musical instrument, he might be mistaken. However, at times the unlawful
instrument is concealed in such a way as to leave no doubt about what it
is—for example, when an ʿūd is covered with a very thin cloth that betrays
its shape. In such cases, claims al-Ghazālī, the conditions for “apparent-
ness” are satisied and the muḥtasib may intervene.
The second set of questions regarding music-related offenses concern,
as noted, the circumstances in which a muḥtasib may intervene when mu-
sic is played from within a private residence and heard by people outside.
On the one hand, the music played is produced in private, hidden from
the public eye of the muḥtasib. On the other hand, the sound crossing the
physical boundaries of the residence leaves little doubt about the nature
of the offense committed inside. Although committed within the boundar-
ies of a private territory, it is not totally “hidden” from the public. In that
case, should the muḥtasib interfere and, by doing so, violate the privacy of
someone’s home?
There is no consensus among jurists on the issue. In his chapter “Com-
manding Right and Forbidding Wrong” in the Iḥyāʾ, al-Ghazālī claims that
the muḥtasib can intervene only when he sees an offense perpetrated in
front of his very own eyes. “He who shuts the door of his house, and hides
within its walls—it is not permissible to enter upon him without his con-
sent to gain a clear knowledge of the sin (li-taʿarruf al-maʿṣiya).” Only
“when something within the house makes itself apparent, in a way that it is
revealed to those outside of the house—like [in the case of] the sounds of
songs and string instruments, when they transcend and traverse the walls of
the house—the one who hears it has the right to enter the house and break
the musical instruments.”24
 Public and Private in Ḥisba 49

Ibn al-Ukhuwwa reaches a different conclusion. He regards the require-

ment for the “apparentness” of the offense on the one hand, and the ban on
spying, on the other, as denying any possible invasion of the privacy of a
wrongdoer’s home. The only exceptions to this rule are when the muḥtasib
has reason to believe that a severe irreversible major offense, like murder or
illegal sex (zinā), is about to take place in the residence. In such cases, and
only then, can the muḥtasib invade the privacy of a home.25 If a muḥtasib
hears sounds of musical instruments coming out from a house, even though
he might be positive about the actions taking place in that house, he can
rebuke the wrongdoers only from the outside. Ibn al-Ukhuwwa explains
that the reason why the muḥtasib should not enter the house is that the
“abomination is [already] apparent, and he has no right to uncover anything
else.”26 According to Ibn al-Ukhuwwa, then, the fact that the music heard
from within the house “reveals” itself and its perpetrators to the outside,
and thus becomes public, does not justify the invasion of the privacy of the
house, an action that might lead to the discovery of further transgressions
such as wine drinking.27
That the jurists discuss the legitimacy of violating the privacy of a house
from which music is heard is telling for the understanding of the relation-
ships between the private and the public as seen in medieval Islamic urban
spaces. The private is characterized as concealed, beyond the certain knowl-
edge of the public. But musical performance creates a situation in which it
is no longer entirely clear what is “inside” and what is “outside”—or where
the private ends and the public begins. Moreover, in this case we see that
private space has the ability to expand itself into the public, but also that
in certain circumstances the public can extend itself into spaces that are
normally considered private. On the surface, it seems that a private territory
is deined simply on the basis of its function; hence a dwelling is “private”
and the market is “public.” On closer look, however, we see that the private
and the public are functions of other factors as well, such as the nature of the
activities performed in them, and whether or not they are concealed from
the public eye.28

The Public Display of Wine

The public “display” of wine is an offense similar to that of the public dis-
play and playing of musical instruments. Indeed, many ḥisba manuals dis-
cuss the two categories of offenses in the same chapter or in proximity to
each other. It is accepted by jurists from all Sunni schools, as well as by
50 Klein

Shiʿite jurists, that the drinking of wine (khamr) is forbidden.29 Since the
prohibition is based on Qurʾanic verses, the offense is considered to be one
committed against God and deserving a ḥadd punishment, the nature of
which is determined differently by jurists of the different schools. The usual
punishment to be meted out to an adult free Muslim male is forty to eighty
lashes.30
However, while according to the sharīʿa any drinking of wine is a
severe offense, the ḥisba manuals make it clear that the muḥtasib should
concern himself only with a few speciic occurrences related to wine. Ibn
al-Ukhuwwa explains that what is relevant to the muḥtasib is not the act of
drinking but merely its display in public (iẓhār). Only when a muḥtasib sees
wine vessels displayed in public should he intervene. According to most
schools, the muḥtasib should pour out the wine or even smash the vessels
containing it.31 The manuals discuss the display of wine not only by Mus-
lims but also by non-Muslims. Although the prohibition on consuming wine
does not apply to non-Muslims, the ban on the public display of it does.
Ibn al-Ukhuwwa explains that there is a consensus among all jurists that a
dhimmī displaying wine in public should be punished for doing so.32

Inside the Private Domain: Offenses Inside Homes

We have already seen that there are a few restricted cases in which jurists
are inclined to allow the violation of the privacy of the home. These are
cases in which severe offenses are known to be taking place, such as forni-
cation, manslaughter, and at times also the playing of music. But there are
also cases in which the private territory loses its privacy not because of the
unusualness of the offense, but because some individuals witness, within
a private territory, offenses committed by others. The “private” nature of
a home stems in part from the fact that what is inside is hidden from the
public. But the private house is a space occupied by different people. One
can imagine a situation in which only the owner of the home is committing
an offense in the presence of other members of his household or guests. The
latter do not participate in the offense, but, since they witness it with their
own eyes, the offense no longer enjoys the hidden protection the home usu-
ally provides. For them the offense is apparent, as if it had been committed
outdoors. Such cases raise the question: can the privacy of a home protect
the perpetrator who commits an offense within his own home? The idea of
privacy, it turns out, does not seem to be inherent in the territory itself, but
in the complex relation of territory, people, and situational contexts.
 Public and Private in Ḥisba 51

The ḥisba manuals and works on “commanding right and forbidding

wrong” discuss several such cases, in which offenses committed by mem-
bers of the household are observed by other members of different social
status. If an offense is committed by a person whose status is lower than
the one witnessing the offense, there seems to be no doubt that the one with
higher status should reprove his inferior. A problem arises when the per-
petrator is of a higher status than the one witnessing the offense—such as
when a father is witnessed by his son, a master by his slave, a man by his
wife, or a teacher by his student; and outside the home, the ruler (sultan)
seen by his subjects.33 Al-Ghazālī is of the opinion that the “commanding
right and forbidding wrong” injunction does apply in such cases, in spite
of the difference in authority between the perpetrator and the reproacher.
But there should be restrictions on the way the one of lesser status reproves
his superior. The one of inferior status can only reprove his superior by
informing him of his wrongdoing and by gently warning him; he cannot
act beyond that step.34 Al-Ghazālī applies the same principle to the case of
father and son, master and slave, and husband and wife.35
In the case of offenses committed in the privacy of a home and wit-
nessed by a visitor, the issue of hierarchy is not necessarily pertinent; what
is pertinent is whether the offense was committed in private or not. The
transgression is of a private nature in that it occurred in the private terri-
tory of a home. But by becoming apparent in the presence of a visitor, it is
now also of a public nature. Al-Ghazālī considers a few possible offenses
a visitor might encounter. If the visitor cannot act against them, he must
leave. Instead of removing the offense, he can remove himself from the
scene, thereby removing the public presence from the house and rendering
it private again.36

Cemeteries and Wailing Practices

Cemeteries were among the common sites within the muḥtasib’s jurisdic-
tion. As portrayed in the manuals, the graveyards were far livelier places
than one might imagine. In addition to the permanent residents of cem-
eteries, a variety of “professionals” made their living there, and others fre-
quented them on a regular basis. Among the “professionals” were Qurʾan
reciters, various craftsmen, petty merchants, female wailers (nāʾiḥāt), pros-
titutes, and thieves. Many of the denizens of the cemeteries seem to have
been women who appeared there either as part of a group of working “pro-
fessionals” or simply as visitors. Although the manuals do not describe in
52 Klein

detail the identities of these women, they do mention that their presence
attracted young men who would come to the cemetery mainly to see them.
The presence of women in this space, as well as the activities of a variety
of professionals in it, is regarded as problematic by the ḥisba manuals. The
muḥtasib is called upon to act in order to prevent or limit their presence in
the cemetery as much as possible.
An examination of some of the activities in the cemeteries, as described
by the manuals, would suggest, I argue, an example of a territory that is
both public and private. As a marginal public territory, the cemetery is a
public place where people often go for privacy. Various groups and indi-
viduals are trying to create their own private spaces in the cemetery. The
muḥtasib does his best to thwart that.
One of the main tasks of the muḥtasib in overseeing funerals and fu-
neral customs is the suppression of the practice of wailing over the dead
(niyāḥa, nawḥ), performed both by relatives of the deceased and by profes-
sional female wailers. Ibn al-Ukhuwwa asserts that wailing is a forbidden
practice and that the muḥtasib must stop it and punish any women he hears
wailing. He adduces some of the many Prophetic traditions condemning
the practice—such as “the female-wailer and whoever is around her [are
doomed to be sent to] Hell.”37
The opposition to wailing practices stems from a combination of fac-
tors. The irst and the most obvious is that it is a practice that subjects
women to public attention. But the opposition also appears to be related
to a disapproval of the externalization of emotions, regardless of whether
they are expressed by men or women. The ideal behavior in circumstanc-
es of extreme sadness or anger is forbearance (ṣabr)—keeping emotions
concealed and restricting their outward display as much as possible.38 In
discussing the issue of ṣabr in his ḥisba treatise, Ibn Taymiyya asserts that
the appropriate behavior for someone who has suffered the loss of a loved
one is to recite the Qurʾanic verse, “We belong to God, and to Him we re-
turn” (2:156). It is Satan who calls men in situations of anger and grief to
act without constraint. Nevertheless, Ibn Taymiyya recognizes that not all
people can conduct themselves at all times according to this idealized self-
control. Citing Prophetic traditions, he calls for keeping the external mani-
festations of grief to a minimum. Crying quietly is permitted, but wailing is
forbidden.39 He quotes a Prophetic tradition on the authority of Ibn ʿAbbās,
which discusses the question of whether crying over the dead is possible.
In the tradition, upon the death of Zaynab, the daughter of the Prophet, a
group of women begin to cry. ʿUmar reacts by logging the women, but
the Prophet stops him, and, addressing the women, says: “Cry, but beware
 Public and Private in Ḥisba 53

the cry (naʿīq) of Satan.” He then explains: “What pertains to the eye and
the heart is from God, and what pertains to the hand and the tongue is from
Satan.”40
The same distinction between crying and wailing can also be found
in Ibn al-Ukhuwwa’s manual: crying (bukāʾ) is permitted (jāʿiz) if it is
done without lamentation (nadb), wailing (niyāḥa), tearing one’s upper
robe (shaqq jayb), or slapping one’s cheeks (ḍarb khadd).41 The Maghribī
Yaḥyā b. ʿUmar (d. 288/901), in what is probably the oldest surviving ḥisba
manual, Al-Naẓar wa-l-aḥkām fī jamīʿ aḥwāl al-sūq, avers that “loud cry-
ing” (al-ṣurākh al-ʿālī) and gathering for the purpose of “loud crying” is
reprehensible (makrūh). “The prohibition (nahy) against it is valid whether
it includes wailing or not and whether it occurs after or before the death of
the person. . . . As for shedding tears (bukāʾ), there is nothing reprehen-
sible about it.”42 ʿAbd al-Raʾūf, in his ḥisba manual, quotes a Prophetic
tradition on the authority of Muḥammad b. Wāsiʿ: “The irst who screamed
and wailed (ṣāḥa wa-nāḥa) was Iblīs (Satan), when he was banished from
Paradise.”43
Behind the negative position on wailing is more than simply misgivings
about self-control on the part of individual women. Wailing practices were
often conducted in groups, and the loud cries of women who gathered to la-
ment the dead attracted the attention of others, particularly men. Ibn ʿUmar’s
work includes references to such practices in the Maghrib. He relates cases
in which “a woman, whose husband, son, or relative had died, frequents
his grave every Friday and on other days as well. At times she cries loudly,
and sometimes other women gather around her crying aloud.”44 Another il-
lustration is found in the Andalusian judge Ibn ʿAbdūn’s description of the
cemetery in Seville. He claims that on holidays young people had a custom
of sitting in the courtyard (bāʿa) of the cemetery, watching the road in order
to engage in vain and empty conversations with women.45 Ibn ʿAbdūn’s
other descriptions make it clear that, during his time, the cemetery served
as an arena where men would come looking for women (and perhaps also
women wanting to be found by men), not only on holidays. Because of
his concern that men come to the courtyards (afniya) of the cemetery to
seduce women (li-murāwadat al-nisāʾ),46 he instructs the muḥtasib to visit
the cemetery twice a day. The muḥtasib is to order his deputies (ʿurafāʾ) to
search the “courts” (dārāt) in the cemetery, because they are “nesting plac-
es” (awkār), especially in the summer when the roads are empty at noon.47
Quite apart from the danger of attracting men, the idea of an exclusive
assemblage of women is regarded by the manuals with disfavor. ʿAbd al-
Raʾūf disapproves of gatherings of women who meet to cry over the dead,
54 Klein

insisting they are to be discouraged regardless of whether they are conduct-

ed privately (sirran) or openly (ʿalāniyatan), and even if they do not include
mourning (nawḥ) at all.48 The Maghribī Mālikī judge Ibn al-Munāsif (d.
620/1223), in a chapter on ḥisba in Tanbīh al-ḥukkām, describes the prac-
tice of women meeting in cemeteries for social purposes. He does not men-
tion any wailing or visiting of graves.49 However, he claims that, although
they try to hide between the graves’ tombstones, the women are “exposed
to many sins.”50
The search by the muḥtasib’s deputies in the “nesting places” brings us
to another activity that was conducted in the cemeteries—prostitution. The
structures built over many of the graves and the courts of the graves allowed
prostitutes and customers the privacy they wanted.
Other groups of professionals who made their living in the cemetery
were Qurʾan reciters (qurrāʾ), story-tellers (quṣṣāṣ), and fortune-tellers
(ḥussāb). The irst group included professional Qurʾan reciters paid by the
families of the deceased to recite Qurʾanic verses by the graves of their rela-
tives. The presence of the second and third groups is more revealing, since
it supports the suspicion that cemeteries served as meeting places for people
who frequented them for purposes other than mourning the dead. Jurists
were troubled by the interactions of these male professionals with their fe-
male clients and audiences. Ibn ʿAbdūn argues that the muḥtasib should en-
sure that the reciters of the Qurʾan are not men in the prime of their youth or
bachelors, even if they are blind. He explains his concern laconically: “This
is because evil is prevalent.”51 Ibn ʿAbdūn is clearer when he discusses the
dangers caused by the presence of the story-tellers and fortune-tellers in
the graveyard. He forbids them to talk with women in isolated grave com-
plexes, explaining that a woman who comes to talk with a man under these
circumstances is probably there either to seduce or rob him.52
The cemetery is thus a public space where people meet and various so-
cial activities take place. However, it is a unique public space, different from
other public spaces to be found in the center of urban life, such as the mar-
ket or the mosque. It is a space normally situated on the physical margins of
the public space, and it attracts people precisely because of its marginality.
It is a public place where people go to seek privacy. Although people from
all walks of society visit cemeteries, the visitors mentioned most frequently
in the ḥisba manuals belong to marginal social groups or, at the very least,
ones removed from the male-dominated group that controls the public space
and the public sphere of society. It is not public oficials who appear at the
cemeteries regularly, nor is it members of the religious establishment or the
big merchants. According to the manuals, the most common visitors are
 Public and Private in Ḥisba 55

women, young men, Qurʾan reciters,53 prostitutes, craftsmen in the most

menial occupations—such as dyers (ṣabbāgh)—and petty merchants. Many
of these people come to the cemetery because they do not ind a place for
themselves within the more central public space of the city. The cemetery,
on the other hand, is a public place that is not regulated as strictly as other
public spaces. As such, it provides an opportunity for activities and encoun-
ters that are more dificult to contrive in the central public spaces.
We may thus consider the cemetery a semi-private public space. It is
a public place that is usually located on the outer fringe of the city. It is
characterized by a low density of visitors, and those who do visit are often
from the margins of society. In many cemeteries, such as those in North
Africa, the empty structures built over the graves create the possibility of
new private pockets concealed from the public gaze. All these factors cre-
ate conditions that allow for the conduct of activities normally undertaken
in private.
The reprehension of women’s practices in the cemetery should be seen
as part of a power struggle over the control of territory. The wailing of
women is largely a question of the invasion of public territory by the exten-
sion of an “object” regarded as private. The human body is culturally de-
ined as one of the most private objects and, of all bodies, the woman’s body
is the most private of all.54 Accordingly, Islamic jurists often believed that
women’s presence should be restricted to the private space of the home as
much as possible in order to protect them from the dangers lurking outside,
and perhaps also from their own sexuality. As a result, the jurists generally
call for the restriction of any avoidable exit of women from their homes.
Ibn al-Ukhuwwa forbids women to visit graveyards altogether. In part,
his objection stems from a worry that mourning women fail to observe
the norm of segregation from men and, consequently, run the risk of en-
dangering their chastity.55 The muḥtasib, therefore, ought to see to it that
women who do attend funerals will not reveal their faces and heads before
the dead.56
But women did go out, and jurists were well aware of that. Consequent-
ly, the presence of women in public had to be restricted, if not altogether,
then at least in the manner of their physical presence. Their appearance
in this public space was not simply a question of absolute presence or
absence therein. The “territory” of the body could be extended in
many ways, and thus the “violation” of the public space by women
could be increased or lessened. One means of extending the body is
through sight. When a woman is not dressed “properly,” she is more
likely to attract the attention of those around her. Another means is
56 Klein

sound. Sounds produced by a body extend its territory beyond its physical
boundaries. Thus, it is possible to explain the jurists’ opposition to women’s
presence in cemeteries in general, and to wailing practices by women in
particular, in terms of a felt need to restrict, as much as possible, the “inva-
sion” of public space by women’s bodies. By exposing parts of their bodies,
by screaming and weeping loudly, or by using sharp body movements, as
female wailers are wont to do, women are extending their physical boundar-
ies and “invading” public space, more than the male authors of our manuals
are inclined to allow.57
The cemetery, then, is a place in which, for some, the public becomes
private. It is the muḥtasib’s role to restrict this as much as possible and to
try to keep “the public,” as conceived by the jurists and ulema, uninvaded
by other groups in society.

The Instruction of Children

Many ḥisba manuals contain a section devoted to the instruction of chil-

dren. They consider issues such as: Who should be allowed to teach? What
should be taught? What should children be forbidden from reading? Where
should teaching take place? What kinds of punishment should an instructor
be allowed to mete out to children?58
Of these questions, the most relevant to our discussion is that of the
appropriate locations of instruction. Al-Shayzarī, Ibn al-Ukhuwwa, and Ibn
Bassām express opposition to the practice of teaching children in mosques.
The reason they offer is that children might dirty the place by drawing on the
walls or soiling the ground.59 Al-Shayzarī asserts that the instruction should
be held in a premises (ḥānūt), on pathways (durūb), or on the outskirts of
markets (aṭrāf al-aswāq).60 Ibn Bassām and Ibn al-Ukhuwwa argue that
teaching should by no means be held in the private home of a teacher.61
The reason for this prohibition, and the preference for teaching children in
open spaces, is the fear of child molestation and the arousal of suspicions of
possible molestation. Al-Shayzarī, Ibn al-Ukhuwwa, and Ibn Bassām also
object to the custom of sending off young boys with men or women to write
letters for them.62 Some sinners (fussāq), they explain, use the occasion
to seduce boys.63 The manuals also warn against the possible exploitation
of children by their instructor, who might assign them lowly chores in his
home, which could bring shame on the parents. Finally, “to prevent any
false accusations,” the instructor is admonished not to send children to his
home when it is empty.64
 Public and Private in Ḥisba 57

The treatment of the proper location of teaching children offers an ex-

ample of an instance in which the open/public space is regarded as a protect-
ed environment while the concealed/private space is considered potentially
dangerous. Children in the private dwelling of the teacher are in danger,
whereas in the open space where they can be seen by all they are protected.
It is noteworthy that, in the case of women, the perception is very different.
A public space may be protective of children; yet it may be threatening and
dangerous for both women and their surroundings. “Private,” then, should
not be automatically equated with “protected”; it is largely a matter of who
stays where.

The Mosque

The mosque is another public space within the jurisdiction of the muḥtasib.
He is charged with the proper functioning of the place, a responsibility that
includes making sure that people attend the Friday prayer and conirming
the correct timing of the muʾadhdhin’s calls for prayers.65 Some of the is-
sues at stake in the muḥtasib’s control of the mosque provide yet another
illustration of the struggle between the private and public.
ʿAbd al-Raʾūf enumerates in his manual a list of abhorred practices
common in mosques of his time. Especially noteworthy is his comment
that “no one should make the mosque a residence (maskan), for it is a place
of worship.”66 ʿAbd al-Raʾūf is most likely referring to several question-
able practices prevalent in mosques, especially sleeping and eating. He also
mentions people engaged in various crafts, such as sewing, and buying and
selling inside mosques.67 Ibn al-Ukhuwwa deplores the habit of people who
sit and gossip in the mosque (yajlisu fīhā li-ḥadīth al-dunyā).68 Al-Ghazālī
refers to the problematic presence of mad people, drunks, and children in
mosques. His mention of children is striking. He insists that, although chil-
dren should be allowed to come to the mosque and even play and make
some noise there, the moment “they make the mosque a playground” (idhā
ittakhadha l-masjid malʿaban) and this becomes a habit (wa-ṣāra dhālika
muʿtāda), the muḥtasib should put a halt to such behavior.69
ʿAbd al-Raʾūf, Ibn al-Ukhuwwa, and al-Ghazālī are no doubt concerned
about safeguarding the respectful and sacred atmosphere of the mosque as a
place of worship. However, on a different level, they are intent on prevent-
ing the mosque, qua a public space of worship, from turning into the private
territory of various individuals. The mosque provides an example of the
constant struggle over the “privatization” of a public space.
58 Klein

Conclusion

This paper has explored the spatial categories of “private” and “public” as
relected in medieval ḥisba literature. The application of these terms to me-
dieval Islamic societies can be analytically productive. In ḥisba manuals,
the notion of privacy is determined mainly by the concepts of the “hidden”
and the “apparent.” Roughly speaking, what is hidden is private and what is
apparent is public. As a consequence, privacy is not entirely associated with
a speciic territory. The same space could at times be regarded as private
and at other times as public.
Nevertheless, the ḥisba texts examined do show that the hidden-appar-
ent distinction is not enough to deine privacy. Explicit Qurʾanic verses
prohibit spying on people (49:12) and forbid entry into another person’s
home without the owner’s permission (24:27). The much-quoted tradition
about ʿUmar “breaking into” a house in which an offense is taking place
suggests that a territorial notion of privacy did exist. ʿUmar is reproved in
the tradition for his “spying” and entering a house without permission. The
notion of the home as private territory is by no means absent.
Yet the territorial notion of privacy is fragile. The home provides some
protection against intrusion, but it does not give complete immunity to an
offender. In cases where music emanates from a home, it is no longer ob-
vious that the privacy of the residents is to be maintained. If outsiders en-
counter wrongs in a home they are visiting, they are obliged either to act
(i.e., to carry out the amr bi-l-maʿrūf) or, if they feel they are unable to
do so, to leave. The implication is that the privacy of the home no longer
applies in such circumstances. The owner and master of the house himself
could be exposed to admonishment, not just by visitors but even by his own
household. His children, his wife, and (at least in the ḥisba manuals) even
his slaves can encroach on his privacy and, within limits, reprove him for
offenses he commits.
The territorial notion of the public is fragile as well. Various individu-
als and social groups are constantly attempting to privatize parts of a public
space, and thereby convert the space from its usual public usage to a private
one—as, for example, when people try to use the mosque as a place to sleep
or to transact commerce.70 And, as in the case of music, certain activities
conducted in private affect the public territory and thus extend into it.
The conlicts between public and private spaces exist not only in the
context of static urban spaces, but also between people and the space they
inhabit. The body itself is a private territory, especially when female bodies
are involved. The muḥtasib’s preoccupation with keeping women beyond
 Public and Private in Ḥisba 59

the sight of men can be seen as part of his duty to keep the public and pri-
vate spheres separated and demarcated. The same applies to his enjoining
men and women alike to exercise self-restraint and his reproving the exter-
nalization of emotions.
It could be argued that wailing, which produces loud cries, constitutes
a behavior and an event in which the body is extended beyond its physical
borders, just as music heard from within a residence extends its physical
boundaries. The result is an invasion of public space by what is seen as pri-
vate. This is even more evident when, on such occasions of wailing, parts
of the body that are usually covered become exposed.
While the spatial notions of “private” and “public,” as seen in the urban
settings referred to in the ḥisba manuals, are important categories, they are
also unstable. The public and the private are in constant competition with
each other. Every public space is in danger of becoming private, at least to
some degree, but private territories are also under the constant threat of los-
ing their privacy to the public domain.
The muḥtasib is the guardian of public space. It is through the literature
on this extraordinary function that we can more easily discern the shifts
between the public and the private realms. As the guardian of public space,
the muḥtasib does not operate in a stable and ixed sphere. He constantly
strives to keep that space as public as possible and, in the process, he ights
numerous attempts at rendering it private.

I thank Wolfhart Heinrichs, Noa Havilio, and Liat Kozma, as well as an

anonymous referee, for their insightful comments and suggestions.

Notes
1. Claude Cahen and Muḥammad Talbī, “Ḥisba,” Encyclopedia of Islam, 2nd ed.
(hereafter EI2).
2. Ronald P. Buckley, The Book of the Islamic Market Inspector = Nihāyat al-rutba fī
ṭalab al-ḥisba (The Utmost Authority in the Pursuit of Ḥisba), by ʿAbd al-Raḥmān b. Naṣr
al-Shayzarī (Oxford: Oxford University Press, 1999), p. 13.
3. Boydena R. Wilson, “Glimpses of Muslim Urban Women in Classical Islam,” An-
nals of Scholarship 2-2 (1981): 96.
4. Abū Ḥāmid al-Ghazālī, Iḥyāʾ ʿulūm al-dīn, vol. 2 (Aleppo: Dār al-Wāfī, 1998),
p. 323. For different versions, see Abū l-Ḥasan ʿAlī b. Muḥammad al-Māwardī, Al-Aḥkām
al-sulṭāniyya wa-l-wilāyāt al-dīniyya, ed. Khālid ʿAbd al-Laṭīf al-Sabʿ ʿAlīmī (Beirut:
Dār al-Kitāb al-ʿArabī, 1990), p. 406; al-Ghazālī, Iḥyāʾ, pp. 515–16; Muḥammad Ibn al-
Ukhuwwa, Maʿālim al-qurba fī aḥkām al-ḥisba, ed. Muḥammad Maḥmūd Shaʿbān et al.
(Cairo: al-Hayʾa al-Miṣriyya al-ʿĀmma li-l-Kitāb, 1976), p. 91. Quoted in Michael Cook,
Commanding Right and Forbidding Wrong in Islamic Thought (Cambridge: Cambridge
University Press, 2000), pp. 82, 480.
60 Klein

5. Al-Māwardī, Al-Aḥkām al-sulṭāniyya, p. 391.

6. Ibn al-Ukhuwwa, Maʿālim al-qurba, p. 51. See also p. 55.
7. Ibid., p. 320.
8. Al-Ghazālī, Iḥyāʾ, p. 515. On this point, see also Cook, Commanding Right and
Forbidding Wrong, p. 480.
9. Ibn al-Ukhuwwa, Maʿālim al-qurba, p. 91.
10. Ibid., p. 54.
11. Ibid., p. 91.
12. See Cook, Commanding Right and Forbidding Wrong, pp. 43–4; al-Muttaqī al-
Hindī, Kanz al-ʿummāl fī sunan al-aqwāl wa-l-afʿāl, ed. Ḥasan Razzūq, Ṣafwat al-Saqqā,
and Bakrī Ḥayyānī, vol. 3 (Aleppo: Maktabat al-Turāth al-Islāmī, 1970), pp. 73 (no. 5539),
81 (no. 5582).
13. See Cook, Commanding Right and Forbidding Wrong, pp. 90–1; Amnon Shiloah,
“Music and Religion in Islam,” Acta Musicologica 69-2 (1997): 143–55; Arthur Gribetz,
“The Samāʿ Controversy: Sui vs. Legalist,” Studia Islamica 74 (1991): 43–62; and Lois
Ibsen Faruqi, “Music, Musicians and Muslim Law,” Asian Music 17-1 (1985): 3–36.
14. Shiloah, “Music and Religion in Islam”: pp. 143–4; R. Sellheim, “Samāʿ,” EI2.
15. Or simply malāhī. Other designations are ālāt al-lahw and ālāt al-ṭarab. Shiloah,
“Malāhī,” EI2. Although the term malāhī is usually associated with musical instruments,
occasionally it is also used to refer more broadly to “instruments of amusement,” including
games such as chess and backgammon, and even children’s toys. See, for example, Ibn Abī
al-Dunyā’s Dhamm al-malāhī (Cairo: Dār al-Iʿtiṣām, 1987).
16. Shiloah, “Malāhī,” EI2.
17. Lamentations are discussed below, in the section on cemeteries.
18. Abū Bakr Ibn Abī Dunyā, Al-ʿaql wa-faḍluhu wa-yalīhi dhamm al-malāhī, ed.
Muḥammad al-Saʿīd et al. (Beirut, 1993). For an English translation, see James Robson,
ed. and trans., Tracts on Listening to Music, being dhamm al-malāhī by Ibn Abī al-Dunyā
and Bawāriq al-ilmāʿ, by Majd al-Dīn al-Ṭūsī al-Ghazālī (London: Royal Asiatic Society,
1938). See also Amnon Shiloah, The Theory of Music in Arabic Writings (c. 900–1900):
Descriptive Catalogue of Manuscripts in Libraries of Egypt, Israel, Morocco, Russia, Tu-
nisia, Uzbekistan, and Supplement to B X (Munich: G. Henle Verlag, 2003), p. 89.
19. Amnon Shiloah, Music in the World of Islam: A Socio-Cultural Study (Detroit:
Wayne State University Press, 1995), p. 63.
20. Al-Ghazālī, Iḥyāʾ, p. 428. See also Shiloah, Music in the World of Islam, p. 43.
21. He adds that if the musical instrument is made of wood that could be used for a
different purpose, the muḥtasib should break the instrument into such pieces that could be
preserved accordingly. Ibn al-Ukhuwwa, Maʿālim al-qurba, pp. 88–9.
22. Al-Ghazālī, Iḥyāʾ, p. 537.
23. The same goes for a jug of wine carried hidden under the sleeve. Ibid., p. 516.
24. Ibid.
25. Ibn al-Ukhuwwa, Maʿālim al-qurba, p. 91.
26. Ibid.
27. See also Cook, Commanding Right and Forbidding Wrong, p. 482.
28. This natural power of music to extend the private space into the public, or to render
the private public, seems to be sanctioned in legal discussions for use in restricted occa-
sions, in which there is an interest in doing just that—making something public. One such
occasion is the announcement and celebration of weddings. Thus Yaḥyā b. ʿUmar explains
that the use of drums (duff and kabar) in the context of a wedding is permissible, among
other reasons, in order to make the wedding public (ẓhār al-ʿurs). In his argument, he relies
on the authority of ʿĀʾisha quoting the Prophet as saying, “Make the wedding public and an-
nounce it with a frame-drum (aẓhirū al-nikāḥ wa-aḍribū ʿalayhi bi-l-ghirbāl).” Explaining
the term ghirbāl, which seems to have been out of use by his time, Ibn ʿUmar emphasizes
that the sanctioned use of musical instruments given in the Prophetic tradition is restricted,
 Public and Private in Ḥisba 61

and one should by no means understand from it that art music, ghināʾ, is permissible in
weddings. The use of musical instruments is limited to the purpose of making the occasion
public. Yaḥyā b. ʿUmar, Al-Naẓar wa-l-aḥkām fī jamīʿ aḥwāl al-sūq, ed. Ḥasan Ḥusnī ʿAbd
al-Wahhāb (Tunis: al-Shārika al-Tūnisiyya li-l-Tawzīʿ, 1975), pp. 120–1.
29. The differences among the different schools about which alcoholic beverages they
regarded as wine will not concern us here. For a concise discussion of the issue, see J.
Sadan, “Khamr” and “Mashrūbāt,” EI2.
30. Ibid. See also Ibn al-Ukhuwwa, Maʿālim al-qurba, p. 85. According to him, most
traditions set the number of lashes at forty, and only the caliph ʿUmar b. al-Khaṭṭāb, harsh
as he is usually portrayed in the tradition, is reported to have ordered eighty lashes.
31. Ibn al-Ukhuwwa, Maʿālim al-qurba, p. 84. See also Yaḥyā b. ʿUmar, Al-Naẓar wa-
l-aḥkām, p. 86.
32. There is no consensus, however, on whether the muḥtasib also has the right to pour
out the dhimmī’s wine. Ibn al-Ukhuwwa, Maʿālim al-qurba, p. 84.
33. Al-Ghazālī, Iḥyāʾ, p. 504.
34. Al-Ghazālī enumerates ive stages of executing the ḥisba or the commanding-right
duty: informing (taʿrīf), warning gently (al-waʿẓ bi-l-kalām al-laṭīf), speaking with harsh
language (al-sabb wa-l-taʿnīf), preventing with force (al-manʿ bi-l-qahr), and threatening
with violence (al-tahdīd bi-l-ḍarb). The inferior in rank should implement only the irst two
categories. Ibid., p. 500.
35. Ibid., p. 505.
36. Ibid., pp. 539–40.
37. Ibn al-Ukhuwwa, Maʿālim al-qurba, p. 106.
38. Cf. also Leor E. Halevi, “Muḥammad’s Grave: Death, Ritual and Society in the
Early Islamic World” (PhD dissertation, Harvard University, 2002), p. 235ff.
39. Aḥmad Ibn Taymiyya, Al-ḥisba fī l-Islām, ed. ʿAbd al-ʿAzīz Rabbāḥ (Damascus:
Dār al-bayān, 1967), p. 109.
40. Ibn Taymiyya, Al-ḥisba fī l-Islām, p. 110. See also Aḥmad Ibn Ḥanbal, Musnad,
vol. 6, ed. Aḥmad Muḥammad Shākir (Cairo: Dār al-Maʿārif, 1950), p. 4 (no. 2127).
41. Ibn al-Ukhuwwa, Maʿālim al-qurba, p. 107.
42. Yaḥyā b. ʿUmar, Al-Naẓar wa-l-aḥkām, pp. 89–90.
43. ʿAbd al-Raʾūf, “Risālat Aḥmad b. ʿAbdallāh b. ʿAbd al-Raʾūf fī adab al-ḥisba wa-
l-muḥtasib,” in Thalāth rasāʾil Andalusiyya fī adab al-ḥisba wa-l-muḥtasib, ed. Lévy Pro-
vençal (Cairo: Maṭbaʿat al-Maʿhad al-Faransī li-l-Āthār al-Sharqiyya, 1955), p. 77.
44. Ibn ʿUmar, Al-Naẓar wa-l-aḥkām, p. 92.
45. Ibn ʿAbdūn, “Risālat Ibn ʿAbdūn fī l-qadāʾ wa-l-ḥisba,” in Thalāth rasāʾil Anda-
lusiyya, p. 27. People made a practice of visiting the graves of deceased relatives during
holidays. In most urban centers in the Maghrib, the obligatory outdoor place of prayer, the
muṣallā, was situated in the major cemetery. See J. Burton, “Makbara: In North Africa,”
EI2.
46. Ibn ʿAbdūn, “Risālat Ibn ʿAbdūn,” p. 27.
47. Ibid.
48. ʿAbd al-Raʾūf, “Risālat Aḥmad,” p. 77.
49. Grave visitation, however, was probably the reason women gave for going to the
cemeteries.
50. Muḥammad Ibn al-Munāsif, Tanbīh al-ḥukkām, ed. ʿAbd al-Ḥāiẓ Manṣūr (Tunis:
Dār al-Turkī, 1988), p. 339. See also Muḥammad ʿUqbānī, Tuḥfat al-nāẓir wa-ghunyat al-
dhākir fī ḥifẓ al-shaʿāʾir wa-taghyīr al-manākir (Damascus: Institut Français, 1972), p. 77;
and Wilson, “Glimpses of Muslim Urban Women in Classical Islam”: 96. Women create
private spaces for meetings not only in cemeteries. Al-Ghazālī mentions roofs as places
where women gathered in order to look at men. Iḥyāʾ, p. 539.
51. Ibn ʿAbdūn, “Risālat Ibn ʿAbdūn,” p. 27.
62 Klein

52. Ibid., pp. 27–8.

53. Very low religious functionaries, many of whom are also blind.
54. See Wilson, “Glimpses of Muslim Urban Women in Classical Islam”: 98.
55. Ibn al-Ukhuwwa, Maʿālim al-qurba, p. 107.
56. Ibid.
57. On the question of extending bodily territory, see Stanford M. Lyman and Mar-
vin B. Scott, “Territoriality: A Neglected Sociological Dimension,” Social Problems 15-2
(1967): 236–49.
58. See Ibn Bassām al-Muḥtasib, Nihāyat al-rutba fī ṭalab al-ḥisba, ed. Ḥusām al-Dīn
al-Sāmarrāʾī (Baghdad: Maṭbaʿat al-Maʿārif, 1968), pp. 161–3; Ibn al-Ukhuwwa, Maʿālim
al-qurba, pp. 260–2.
59. ʿAbd al-Raḥmān b. Naṣr al-Shayzarī, Nihāyat al-rutba fī ṭalab al-ḥisba, ed. al-
Sayyid al-Bāz al-ʿArīnī (Beirut: Dār al-Thaqāfa, 1969), p. 103; Ibn al-Ukhuwwa, Maʿālim
al-qurba, p. 260; Ibn Bassām, Nihāyat al-rutba, p. 161.
60. Al-Shayzarī, Nihāyat al-rutba, p. 103. A similar view is expressed by Ibn al-
Ukhuwwa, Maʿālim al-qurba, p. 260; and by Ibn Bassām, Nihāyat al-rutba, p. 161.
61. Ibn al-Ukhuwwa, Maʿālim al-qurba, p. 261; Ibn Bassām, Nihāyat al-rutba,
p. 161.
62. At times, people would turn to the instructor when they needed a letter written and
the instructor would assign the task to one of his students.
63. Al-Shayzarī, Nihāyat al-rutba, p. 104; Ibn al-Ukhuwwa, Maʿālim al-qurba, p. 261;
Ibn Bassām, Nihāyat al-rutba, p. 162.
64. Al-Shayzarī, Nihāyat al-rutba, p. 104; Ibn Bassām, Nihāyat al-rutba, p. 162; Ibn
al-Ukhuwwa, Maʿālim al-qurba, p. 261.
65. ʿAbd al-Raʾūf, “Risālat Aḥmad,” pp. 72–3.
66. Ibid., p. 73.
67. Ibid. See also Ibn al-Ukhuwwa, Maʿālim al-qurba, p. 263.
68. Maʿālim al-qurba, p. 263. See also ʿAbd al-Raʾūf, “Risālat Aḥmad,” p. 74.
69. Al-Ghazālī, Iḥyāʾ, p. 535.
70. In the case of the conduct of commerce in the mosque, as well as in a few other
cases in which certain groups “privatize” public space, one might argue that the private
space that is created is in fact merely a shifting in the usage of the public space from one
public activity to the other.