According to Islam, all the authority is vested with the people. This principle had not been recognised by any positive law except in the eighteen century. It is the same principle which stipulates that the nation is the source of all authorities." It was followed by Europe after a long and continuous struggle made by a few number of liberal philosophers like Montesquieu (1689-1775), who dealt with this principle in his book "Esprit des Lois" (Spirit of Laws), and Voltaire (1714-1778). The efforts of these philosophers were crowned with the "Contrat Social" (Social Contract) which was compiled by Jean Jacques Rousseau (1712-1778). Rousseau opined that all people were born free and equal in rights and that to guarantee freedom and equality, the individuals had joined each other and entered into a social contract whereby each one of them had accepted to forgo a part of his freedom to the community which has appointed representatives as rulers who would discharge their duties on its behalf. These rulers were to protect the other rights left to the people to exercise. The author of the Social Contract tried, through his imaginery perspective, to make the nation the source of all the authorities, and to prove that the government derived its power from the community, the rights of its members it had to safe guard. If the government failed to give such protection and misused the administration of its power, it has to be sacked and a new government was to replace it.

At that time, in most countries of Europe, a ten dency for emancipation from the slavery of rulers prevailed. Among the philosophers who championed this cause, in addition to those already mentioned, were Ques Nay (1694-1774), in France; Emmanuel Kant (1774-1809) in Germany; and Adam Smith (1723-1790) in England. As a result of this new revolution in political thought, the French Revolution was staged in 1789, and in Article 2 of the Human Rights Manifesto, which was issued by the Revolution ,it was stated that "the objective of political groups to safeguard the innate human rights to freedom, ownership, safety and resistance of oppression. This article confirmed that the government was the servant of the people whose rights it had to protect. The people, moreover, were the course of all powers.

The revolutionary ideas of these philosophers crystalised after great efforts, toil and reasoning. It is my belief that had the Islamic notions of the Andalusian Arabs not reached these parts of Europe, these European philosophers would not have been able to set forth their philosophies. The Arabs had provided them good material for their theories.^{[In 1085, when Alfonso VI captured Toledo, the city became the centre from which Arabic culture spread everywhere. During the reign of Alfonso VIl, a number of Jews sought refuge in the city, coming from various parts of Muslim Andalusia. These Jews were those who escaped oppression by Abdul Monim bin Ali, the first Caliph of the Almohades (Al-Muwahideen). Credit for spreading the Islamic works in Europe goes to the Toledan translators of Toledo, among whom were Bishop Raymondo, Dominox Jund Yasalvi, John, son of Dard, a Spanish Jew who converted to Christianity and settled in Toledo, Gerardo, Raymond, Martin and Lall. A number of British and Italian scholars had also gone to Toledo and later returned home carrying with them the Muslims' works and legacy.]}

This brief lexicon which seems to be out of my subject was necessary. I intended to draw comparison between the open and frank Islamic thinking and the Western thinking which was sometimes based on imagination and some other times on plagiary. Since a very early time, the Islamic jurisprudence had known the principle of people's sovereignty and also recognised the other principle that the people were the source of all powers. These principles were contained in text in the Holy Quran and given more elucidation in some of the Prophetic sayings, all of which were applied to the letter by the great Muslim Caliphs. Usually it was the Muslims as a whole who were addressed when the exercise of power was mentioned. In the "Retaliation Verse", addressing the Muslims, God says "O, you who believe, retaliation is prescribed for you in the matter of the slain." ^{[Surat Al-Baqarah : 178]} In another Surat (Chapter), referring to aggression, the Quran also asks the believers that "if two parties of the believers quarrel, (you) make peace between them. Then if one of them does wrong to the other, fight that which does wrong till it returns to Allah's. Then if it returns, make peace between them with justice, and act equitably, Surely Allah loves the equitable." ^{[Surat Al-Hajurat (The Apartments) : 9.]}

In the verse dealing with war, the Quran says: "The only punishment of those who wage war against Allah and His Messenger and strive to make mischief in the land is that they should be murdered, or crucified, or their hands and their feet should be cut off on opposite sides, or they should be imprisoned. This shall be a disgrace for them in this world, and in the Hereafter they shall have a grievous chastisement. Except those who repent before you overpower them; so know that Allah is Forgiving, Merciful." ^{[Surat Al-Maida (The Food) : 33 -34.]}

Referring to "theft", God also addresses the whole Muslims when He says : "And as for the man and the woman addicted to theft, cut off their hands as a punishment for what they have earned, an examplary punishment from Allah. And Allah is Mighty, Wise."  ^{[Surat Al-Maida (The Food) : 33 - 34.]}

The Muslims, as a whole, are again ordered, in context of adultery, that "The adulteress and the adulterer, (you have to) flog each of them with a hundred stripes, and let not pity for them detain you from obedience to Allah if yon believe in Allah and the Last Day, and let a party of believers witness their chastisement" ^{[Surat Al-Nur (The Light): 2.]}

In the verse concerning "slander", God commands all the Muslims that ".. Those who accuse chaste women and bring not four witnesses, (you have to) flog them with eighty stripes and never accept their evidence, and these or' the transgressors." ^{[Surat Al-Nur (The Light): 4.]}

Commanding the Muslims to do good and refrain from doing wrong, God says : "And from among you there should be a party who invite to good and enjoin the right and forbid the wrong. And these are they who are successful." ^{[Surat Al-Imran (The Family of Amran) 104.]}

Also addressing the Muslims as a whole, God informs them, "You are the best nation; . raised up for men; you enjoin good and forbid evil and you believe in Allah." ^{[Surat Al-Imran (The Family of Amran) 109]}

In the Surat Al-Tauba (Repentence), God says "Surely Allah has bought from the believers their persons and their property-theirs  (in return) is the Garden. They fight in Allah's way, so they slay and are slain. It is a promise which is binding on Him in the Torah and the Gospel and the Quran. And who is more faithful to his promise than Allah ? Rejoice therefore in your bargain which you hare made. And that is the mighty achievement. They who turn to Allah, who serve Him, who praise him, who fast, who bow down, who prostrate themselves, who enjoin what is good and forbid what is evil, and who keep the limits of Allah and give good news to the believers." ^{[Verses 112 -113]}

These were some of the Quranic verses which vested power in the Muslim community and not only with the ruler. But there are other verses which also address the Mslims as individuals, commanding them to perform various kinds of worship. These verses deal with the true belief (Iman), the prayers, the payment of the poor- rate, and the performance of pilgrimage to Mecca, These verses teach the indivildual Muslim the principles of his religion and his moral duties, They are different from those vesting power in the community.

In his maiden speech after assuming power as the Caliph of the Muslims, Hadrat Abou Bakr, the Truthful, the First of the Wise Caliphs, said : "I have been elected your ruler though I am not the best of you. If I carry out my duties properly, you must assist me ; and if I do not, you have to correct me. Obey me as long as I abide by God's orders concerning the treatment meted to you. If I break God's rules, you are not required to obey me."

Similarly, Hadrat Umar Ibn Al-Khattab, the Ruler of the Believers, on assuming the Caliphate, had repeated the same statement. Listening to the Caliph's reaffirmation, an Arab commented "By God, if you misuse power, we will set you right with our swords." Umar replied : "Praise be to God Who enabled one of Muhammad's nation to set right the wrongs of Umar by sword". The Caliph was not a despot, but a ruler who received the mandate of authority from his people by voting and swearing allegiance. Allegiance was given because the ruler feared God and abode by God's and the Prophet's commands.

The whole nation of Muhammad is vested not only with one authority, but with the three authorities, the legislative, the judiciary and the executive.

The Holy Quran has assigned to the whole nation the legislative authority through the unanimity of their views and consultation. Describing these people to His Prophet, God said : "And those respond to their Lord and keep up prayer, and whose affairs are decided by counsel among themselves, and who spend out of what we have given them." ^{[Surat Al-Shura (The Counsel): 38]} God also says : `Thus it is by Allah's mercy that thou art gentle to them. And hadst thou been rough, hard-hearted, they would certainly had dispersed from around thee. So pardon them and ask protection for them, and consult them in important matters". ^{[Surat Al-Imran : .158]}

In "A'lam Al-Muwaqieen" by Ibn Al-Qayyim, Maymoun Ibn Mahran was quoted as having reported that whenever a case was brought before Abou Bakr the Truthful, he used to seek decision from God's Book. If he could find such a decision on the ease, he would pass the judgement, and if not, he would ask the Muslims whether they were aware of a judgment which was passed by the Prophet Muhammad on a similar case. If there was such, the people would tell him of the Prophet's decision. But if the Caliph could not find

A relevant Prophetic saying or tradition, he would collect the Muslim leaders for consultation. Only when they unanimously agree on a judgment would he pass his verdict. Hadrat Umar, may God be pleased with him, found no fault in inviting, on certain occasions, some young men rather than the old-aged, for consultation. In so doing, he wanted to benefit from their virile intelligence. In "Concise Study of Learning and its Benefits", by Ibn Abdul Barr, Yusuf, son of Jacob, quoted Al-Magshon as having reported that when Ibn Shehab was interrogated by young people, he used to warn them not to look down upon themselves due to their tender age. " when Umar Ibn Al-Khattab was confronted with a difficult issue, he used to consult the young among his people, seeking good ideas out of their wit. ^{[See Chapter headed History of Judgement and of Leaders of Thought and its Opposition", in the book "Judgement in Islamic Jurisprudence" by Dr. Mokhtar Al-Qadi First edition , 1949.]}

God willed that from among the Muslims there should be a group which must be well versed in know ledge and learning. In Surat Tauba, God says : "And the believers should not go forth all together. Why, then, does not company from every party from among them go forth that they may apply themselves to obtain under standing in religion, and that they may warn their people cautious". ^{[Surat Tauba :122]} Any perceptive jurisprudent was entitled to make decisions. According to the Islamic Law, such a jurisprudent stood on the same footing with any legislator But this principle is no more applicable in our present times. The jurisprudent's duty is now confined only to the interpretation of legal texts. This interpretation is not binding, but facultative and consultative.

1 - In Ancient Laws

The history of criminal accusation in all the countries since the dawn of history is untraceable but still one can make a study of this history in the civilized countries, the ancient and the modern.  

In public crimes, any individual was entitled to inform of any offence in his capacity as a member of the community. In the court, he would make the indictment. But if the crime was private, the announcement of the crime was the right of the victim alone or of those who could do the same on his behalf such as his parents or the ward and the master if the victim was a slave. ^{["Traite de l'Instruction Criminelle," Faustin by Helie.]}

In private crimes, the victims, or their representatives, were allowed to nonsuit and to settle it by reconciliation. After reconciliation, the judge had to discontinue the proceedings and the offence itself would become out of place: It was obvious that reconciliation in cases of murder would not be consumated except by the collective agreement of the parents of the murdered. If both of them would not agree to the reconciliation, and the reconciliation would be accepted by only one of them, the dissenting party, could go ahead in litigation.

In Rome

Indictment in the Roman Law passed through three stages. The first started from the emergence of Rome until the beginning of the seventh century B.C. Most significant during this period was the issuance of a set of laws which accorded the right of indictment to a public assembly composed of one hundred citizens, at the top of whom was a judge or a ruler. This assembly had the right to make the indictment and purse the legal procedures. Anyone who wanted to make a criminal indictment had to approach this assembly. Even when the Senate wanted to do so, it had to summon a meeting of the People's Assembly to study the indictment. This proves that during this period, individual indictment was not practised. In the second phase, which started from the seventh century B.C. until the rise of the Roman Empire, the right of indictment on public offences was granted to every citizen. This right could be exercised at various courts. But in private offences, only the victim or his representative were accorded this right, but under the legal restrictions which were imposed at that time.

During the third stage, which started with the reign of Emperor Augustus and ended with Justinian, a new tendency appeared which tried to restrict individuals' rights to indictment on anti-common interest offences. The right was left to the individuals only when they had special interest in the indictment. The concept of the public interest ,and, later, the concept of public indictment were not made known except in that period. The concept of public indictment was inspired by a notion which loomed at that time and which established the conviction that if litigation for public interests was left to individuals, most of the crimes committed against the state would remain unpunished. For this reason, the Emperors gave the rulers of the Provinces the right of making indictment on anti-State security offences. The ruler was to investigate these cases and refer them to the court without waiting for any information from individuals.

2 - In Modern Laws

In The English Law

On the other hand, the English Law has provided guarantees against abusive actions and false allegations made by certain people against others. Besides, the English Law has entitled any individual to inform of any offence, whether he might be the victim or alien to the offence.

As regards abandonment of action, it was an established rule that one's right in making indictment could not be relinquished. Any agreement concluded between the victim and the plaintiff on abandonment of accusation was considered by some jurists an offence.

If the victim had no right to abandon action, it was more proper to deny the same right to anyone who would volunteer to file a case. Only in one case did the English courts make exception to this rule, and that was in case the offence had greatly affected the interests of the victim, provided the common interest was not so affected. In such a case, the English judiciary would allow the victim to abandon action.

Indictment by the State

As it was ruled that an individual could not abandon an action after its procedural arrangement had been made, it was also the rule that the attorney-general was the only person who had absolute right to dismiss any criminal case. Such an action should be taken in the court, and his demand should be accepted by the court without any argument except as regards the form. If his application was in form, litigation had to stop.

In the German Law

According to the German law for criminal procedures of 1877, which was amended in 1924 ^{[This extract from the German legislation was deliberately mentioned to by-pass the consecutive legislations which were enacted after the partition of Germany into East and West Germany.]} public prospecuttion was the responsibility of only the public prosecutor unless it was otherwise indicted by law, when permission was sought from a victim or anyone else.

Though the public prosecution has the right to make indictment or to stop a suit before referring the case to a court, it cannot abstain from taking any of these courses. According to the law of criminal procedure, a victim has the right to ask the Criminal court to attack the prosecution's decision to nonsuit and to ask the criminal court to re-investigate the case and to force the public prosecution to go on the criminal process ^{[Clause 168 of the German Law for criminal procedures of 1877]}

On the other hand, the German Law defined particular crimes in which the public prosecution cannot make indictment except by permission from the victim ^{[Clause 414 of the German Law for criminal procedures of 1877]}

In calumination and libel offences and crimes of injury, the victim can independently prosecute by direct indictment, without seeking help from the public prosecution .^{[Clause 414 of the German Law for criminal procedures of 1877]}

Since the victim is entitled to make his own prosecution, he is also authorised to drop the case by not attending the hearing of the case of the court. ^{[Clause 431 of the German Law for criminal procedures of 1877]}

In order to synchronise the individual's right to file a public case of a private offence with the State's responsibility for preserving order, the German law authorised the public prosecution to make prosecution in two cases. The first when a private case is referred to a court of first instance, and this is done only when the public interest is involved, and the second, when it practises its right in interferring in private cases as an interferring party. ^{[Clause 417 of the German Law for criminal procedures of 1877]}

In the Present Egyptian Law

The Right of Informing of an Offence 

Filing of Criminal Care Through Public Authorities 

As regards civil cases, Clause 104 of Code of procedure provides that the preservation or order and administration of the court hearing are the responsibility of the chief justice of the court. And in observance of the articles of the Legal Profession Law, the chief justice can order out of the room whoever breaks the order. If the offender disobeys the order and continues to do so the court can immediately sentence him to 24 hours imprisonment or impose on him one pound fine. The court's decision in such a case is final. If disorder was made by one who was on duty in the court, the court, like any chief of any government department, can take during the sitting of the court a disciplinary action against the offender. But before the hearing ends, the court can supercede its verdict.

Clause 106 of the same Law says that "in observance of the Law of Legal Profession, the chief justice of the court has to order a report to be made on any offence which may take place during the sitting of the court and on the procedure he would follow in investigating the offence. Then, he has to refer the case to the public prosecution for necessary action. If the offence is a misdemeanor or a contravention, he, if he finds it necessary, may order the offender to be arrested".

In the Holy Quran God says "And those who, when great wrong afflicts them, defend themselves." ^{[Al-Shura (The Counsel): 39.]} As reported by Abou Daud and Al-Tirmizi, the Prophet Muhammad was quoted as having said that "Whoever dies in defence of his religion is a martyr; and whoever dies in self-defence is a martyr; and whoever dies defending his property is a martyr; and whoever dies defending his family is a martyr".

Muslim quoted Abou Hurayrah as having reported that once a man came to the Prophet Muhammad, may Allah's blessings and peace be upon him, and asked him what he would do if someone else attempted to take his money. The Prophet said : "Do not allow him to do so." When the man enquired of what he would do if he was attacked, the Prophet said "Kill him". The man asked : "But what happens if the man killed me? "The Prophet replied : "Then you are a martyr." And when the Prophet was again asked : "And if I killed him ?" the Prophet replied : "He will go to Hell."

Muslim also quoted Umran Ibn Husayn as having narrated that a man cut another man's arm with his teeth. The assaulted man pushed the attacker with the result that his front tooth was pulled out. Complaining to the Prophet of what had happened to him, the Prophet said "But you attempted to cut his flesh".

Abou Hurayrah quoted the Prophet Muhammad as having said!: "If someone suddenly attacked you, and you pelted him with a stone which would gouge his eye, you are not to blame."

If one is threatened with danger, he has to defened himself even by murdering the attacker, provided that there was no other way to spare his own life. ^{[The Imam Al-Shafei.]}

Defending others is based on the Prophet's saying "Assist your brother when he is oppressed; and protect him against any harm."

"The Muhtasib" and the Attorney-General
The System of "Hisbah" in Islam

Islam has made it obligatory on Muslims to carry out the restrictive ordinances of God and to defend His rights. By the system of "Hisbah", Islam entrusted everybody with the defence of God's rights within the "principle of enjoining good and forbidding evil". In order to have an idea about this system, the duties of the people who volunteered to carry out their duties expecting no return whatsoever but the pleasure of God, and the duties of the "Muhtasib", a brief study of the Islamic legal system would be made.

The ruler or the Caliph of the Muslims had the supreme and general authority on various aspects and functions of the Judiciary. It was his right to try people in person, but when the Islamic State spread out and differences and altercations increased in intensity and in number, the rulers appointed competent judges to try the cases. At the beginning, it was within the jurisdiction of the judge to arbitrate civil, criminal and administrative cases; to execute people's wills; to get the singles married; to execute God's restrictive ordinances; and to prevent attacks and aggression on the roads. But it was a matter of difference among the jurisprudents whether the judge was allowed to pass a judgement in a certain case in the absence of an adversary or not. However, this subject is not to be dealt with here.

When civilization made its headway, the disputes increased consequently. The State expanded further and as a result the judiciary was divided into three categories, one for litigation, another to study complaints, and the third for the "Hisbah". The Hisbah" was administered by a "Muhtasib", whole functions are similar to those of our present time's attorney-general, but still of more vast domains. By this division of authority, the judicature was entrusted with trying the civil cases, the per sonallaw questions, the observance of God's restrictive ordinances, and the minor offences for which punishment had been left to the discretion of the judges. Also referred to him was any dispute the settlement of which could not be reached except through witnesses or under oath. In other words the judges had to hear the cases in which the claim. had not been very clear even though these cases would come under other categories. Another jurisdiction of the judge was the investigation in a dispute involving any jurisprudential discretionary judgement.

The investigation in complaints was identical to our present administrative judicial system. The judges of that category were entrusted with investigation in people's complaints against any injustice done to them by the State's officials or in cases where these officials declined to discharge their duties or misused their power. The judges of this category were also required to execute and to investigate the cases which the first category judges had failed to do under the great influence of adversaries. For this reason, the judge of complaints had to be selected from among those who enjoyed particular qualities.

He had to be of great solemnity and worthiness and of a high calibre. He had also to be held by all the people in high esteem, known for his virtue and probity and piety. He should not have to he covetous. He had to combine in himself the powers of the protective force (Police) and the sagacity of judges. The systm of investigating people's complaints was first initiated by the Ummayad Caliph Abdel Malik Ibn Marwan The council for hearing complaints consisted of representatives of five factions of people ; the security protectors and defenders who were to preserve law and order; the judges and the arbitrators who were to investigate the cases; the jurists who were to be consulted on legal subjects; the clerks who were to record the statements of the adversaries and the proceedings of the trial; and, lastly, the witnesses who were to certify the bench's decisions and orders. Only when all these representatives were present would the court sit for hearing.

The functions of the complaints' court were the following:

1. 1- To inquisite rulers' or their agents' transgression on the people;
2. 2- To inquisite the injustice done by the State's workers in collecting revenues;
3. 3- To keep an eye on the conduct of the employees of various departments of the State lest they should misuse their power;
4. 4- To attend to the poor and the needy and supervise their procurement of their due share in livlihood and of their other rights;
5. 5- To return to the real owners whatever the ruler or his agents had usurped of their property;
6. 6- To supervise the distribution of public and private endownment funds by administrators of unalienable property to deserving people;
7. 7- To execute the sentences which were passed by judges but remained unexecuted due to failure of these judges to do so;
8. 8- To investigate the failure of the "Muhtasib" in carrying out his own duties such as an abomination or aggression the "Muhtasib" had failed to curb;
9. 9- To see that apparent worships, such as Friday congregational prayers, feasts prayers, pilgrimage to Mecca, "Jihad" (Holy War), were properly observed; and,
10. 10- To investigate any judicial issue which was feared not to have been properly tackled by judges due to the great influence of litigants or of a party to the case. In such a case the complaints council had to follow the same procedures which had been followed by the former judges. There was no objection to include in this council some of the former judges. After a little while, the general judicature was separated from the "Hisbah" and a ` Muhtasib", a public official, was appointed to look after the "Hisbah".

To explain further the Islamic system of the "His bah",we have to trace its history and the religious basis on which it was founded.

The history of the "Hisbah" goes back to the days of the Prophet Muhammad, may God's blessings and peace be upon him. Al-Bukhari quotes Nafei and Ibn Umar,may God be pleased with them, as having stated that during the days of the Prophet Muhammad, the Muslims used to purchase food grains from caravens, while they were on their way before reaching their distination, but the Prophet sent messengers to ask the sellers not to dispose of their commodities until they reached the market ^{[The practice was that a number of merchants used to setup at the entrance of the city in which a public market was to be held. The merchants would circulate false news about the low prices of commodities so that they would purchase all the goods from those who would come to the market at lower prices. These transactions were outlawed by the Prophet.]}.

As it was reported by Abou Umar Ibn Abdul Barr, the Prophet Muhammad had appointed Said Ibn Said Ibn Al-As Ibn Umayyah administrator of the Mecca market- place.

The Prophet Muhammad, and his Companions, set a  good example. In their bid to enjoin  good and forbid evil, they themselves superintended the market and on certain occasions they appointed administrators to do the job on their behalf. But still the "Muhtasib" had no full or absolute powers to exercise.

It was also reported that Umar Ibn Al-Khattab appointed Abdullah Ibn Uqbah as an administrator of a market-place.

The system of the "Hisbah" was also known to the Fatimides in Egypt, and the Ummayads in Andalusia. This system was mentioned, and hailed, by "Al-Hagari" in his book "Nafhul Teeb" Usually, the "Hisbah" was concerned only with the supervision of the precision of weights and measurements, the prices, adulteration of food, fraud, cleanliness of roads, and disperssion of gatherings in maltitudes. ^{[The"Hisbah" in Islam, by Ibrahim Al-Desuki Al-Shabawi. P. 103.]}

The "Hishab", as defined by the Chief Justice Aboul Hasan Ali Ibn Muhammad Ibn Habib Al-Basri Al-Baghdadi Al-Mawardi, who died in the Hegrite year 450, ^{["Al-Zkham Al-Sultaniya", p. 240.]} was "to enjoin good if good is not done, and to forbid evil, if evil prevails". The system was based on the Quranic verse : "And from among you there should be a party who invite tgood and enjoin the right and forbid the wrong" ^{[Surat Al-Imran (Family of Imran) 103.]} and on the Prophetic sayings :"Whoever sees a mischief mueliminate it by his hand, and if not possible, then by his tongue, and if not, by his heart and the last is the weakest weapon".

The "Hisbah" is supposed to be the duty of every Muslim, man or woman, because God has deputed all the Muslims, rulers and ruled, to see that His rights are observed and safeguarded. The word "Hisbah" in Arabic implies"work for the sake of God and not for the interest of anyone whatsoever." But though the "Hisbah" is a duty, it is a duty which is to be discharged by some people, and not by all. Prayers, for instance, are the duty of every Muslim, which he has to perform otherwise he would be treated as sinner. To answer a greeting could be made by only one person on behalf of a group to whom the greetings were expressed. If the other members of the group will not answer the greeting, this will not be accounted for. But some people may think little of discharging a duty which is to be done by someone on behalf of others and the result would be that the duty remains undone. It was for this reason that the post of the "Muhtasib" was created and in this post he acted on behalf of the ruler. But even with the presence of the "Muhtasib", any member of the Muslim commodity could file a Hisbah" case, a right which was established before, and after, the creation of this post. When the system was introduced, the "Muhtasibes" from among the public were called "volunteers". In fact, such a man in the true sense of the word was not a "volunteer", but a representative of the Muslim community who spared everyone else that burdens of the post The "Muhtasib's" post was identical to that of the present attorney-general and the duties of his agents could be likened to those of the judicial police officers and in certain cases, those of the "Deterrent Police", a force practising only in Western countries. In these countries, the "Deterrent Police" are required to check crime before it is committed and they are independent from the "Judicial Police", one of whose duties is to in vestigate a crime after it is committed. The "Muhtasib's" function could also be likened to that of a judge of summary justice who makes preliminary investigation of a certain case and after having released that it needed more testimonies and doctrinal disputation, he would refer it to a court of competent jurisdiction.

The duties of the "Muhtasib" were numerous. In his capacity as a caretaker of doing good, he had three obligations, one concerning God's rights, the second the people's rights, and the third God's and His servants' joint rights.

As for God's rights, the "Muhtasib" had to punish or censure any group of Muslims, numbering forty or more, who would refrain from saying a Friday congregational prayer. He had also to punish and blame any individual who was in the habit of nonobservances of prayers.

As for people's rights, the "Muhtasib" had to look after the welfare of the community. He had to see to it that his community was systemically receiving drinking water or why the town's rampart was destroyed; why the city had discontinued extending help to needy wayfarers; or why the town's mosque was falling down. On such occassions, he had to take any suitable action to repair damages or proceed in the relief w6rk even though he had to draw money from the public treasury "Baitul Mal", if this institution had special funds for such.

The "Muhtasib" had also to help individuals retrieve their rights and get their debts paid if he was asked to meddle. But he had no right to imprison anyone, because for imprisonment there should be a legal sentence. But he had the right to put the property of any indebtor under his custody. He also had no right to fix allowances given by anyone to his kith and kin, Such a matter required religious discretionary judgement which entirely fell under the jurisdiction of judicature.

As regards the joint rights of both God and His servants, the "Muhtasib", was entitled to ask parents who prevented their daughters from marrying good husbands to reconsider the case to ask the masters to give their slaves their due rights; to punish the divorced wives who violated the period of waiting; and to punish whoever took a foundling under his care but showed carelessness in his sustenance.

As for forbidding evil, the same three categories held good. Regarding God's rights, the "Muhtasib", would, in the domain of worships, discipline whoever said a prayer in loud voice while he was to say it otherwise, or whoever increased his bows while performing prayers or prolonged the call for prayer. He was entitled to reprove the beggars and whoever asked for charity whereas he had enough of money for self-sustenance. He had to teach people not to be open to suspicion as it had been ordained by the Prophet Muhammad who said: "Avoid being suspected and do unsuspected things." For example, a male should not say his prayers amidst females or talk with a woman in private at a suspected place. One, moreover, must not make public his possession of wines. If such a man was a Muslim, the "Muhtasib" would pour the wine over his head, and if he was a "Zimmi" belonging to a Divine Book, he had to be punished. ^{[Punishment was imposed on whoever drank spirits and not on anyone found to be in possession of wines.]} The "Muhtasib" was also required to prevent people from practising unlawful enjoyments.

In dealings, the "Muhtasib", was required to preclude any greed-to unlawful marriage, sale fraud, and fraud in prices, measurements and weights.

As regards people's rights, the "Muhtasib" had to stave off aggression on other people's property, conquering privacy, demolition of common walls or fences and removal of trunks reclined to walls. But in all these functions, the "Muhtasib" had to meddle at the request of a neighbour, never on his own.

The "Muhtasib" was also authorised to supervise the work of workers and to see that they were not derelict in their work; they did not cheat their customers; or they did not do their work properly.

As regards the joint rights of God and man, the "Muhtasib" had to see to it that a neighbour would not descry his other neighbour from stop of his house and that no one who constructed a high building should leave the roof without cover.

Moreover, the "Muhtasib" had to protect the "Zimmis" from any tresspass by any Muslim.

From this brief survey it appears that the "Muhtasib" had many functions to perform. Some of them were to be carried out on his own or when he was asked to do so by any complainant. But when the matter would concern God and His rights, he had to act swiftly, without complaint presented by anybody. Whenever there was infrongement upon any person’s right, he was to act only when he was asked to do so, because it was the right of any to pardon the transgressor. The public, and the "Muhtasib's" assistants, were allowed to inform him of any violation of law. In all the cases, the "Muhtasib" had to pry into them personally and later pass on them the relevant religious judgement, If the dispute was complicated, he would refer the matter to a judge. The "Muhtasib" had sometimes a licence to apply the principles of a prevailing custom either in the city or in the market place or any practice followed by the workers. He, moreover, was to keep in view decency on roads; to protect passers-by from any possible harm; to disband people's gatherings on markets; and to prevent castration of human beings and animals.

These were the functions of the "Muhtasib" held a public post in the State. While a judge was entrusted with investigaiton of the civil cases which required evidences and great understanding of Islamic laws, the "Muhtasib" had never been allowed to investigate a dispute over property, or to authenticate a contract, or to verify an ownership deed. Moreover, it was the duty of the judge to investigate cases of denial of rights serious disputes civil or criminal. This entitlement was denied to the "Muhtasib"; he had not been authorised to authenticate an evidence to prove disowned rights or to ask for an oath for disaffirmation of a right this was the jurisdiction of the judge alone. While the "Muhtasib" was to investigate only the cases which he himself came to know or those which were brought to his notice by complaints, the judge could not investigate but only the cases which were referred to him by adversaries or witnesses.

Put had the jurisdiction of the "Muhtasib" repealed that of the public in combatting crime? Had the volunteers continued to carry out their duty even with the presence of the "Muhtasib"?

As a matter of fact, the "Muhtasib" was appointed to complement the role of the public in the voluntarily tracing of offences. Before the post of the "Muhtasib" was created, the public sought help from the rulers or the judges to correct a situation where good was not enjoined and evil done. At times, the public were to remove evil by themselves, when self-defence or others' defence were involved, or when the need for protecting their own, or others' property arose. Fearing that the public might fail to do their duty in enjoining good and forbidding evil, the post of the "Muhtasib" was created, but without rescinding the people's part in combating crime. In countries which saw no "Muhtasib", cases of "Hisbah" are still being referred to courts. These cases include separation between a husband belonging to a Divine Book and a Muslim wife, or divorce of a fifth, or more, wife.

Islamic Law permits the public to fight crime directly, and the "Muhtasib's" part was only complementary and not abolishment of the role. This principle is still being adopted by the English Law. However, the public can refer to a court any case requiring evidence and discretionary judgement they thought the "Muhtasib" was unable to make. The public had also the right to refer to the judge any "Hisbah" case involving God's right and this had to be done within the principle of enjoining good and forbidding evil.

However, never at any stage of Islamic history had the functions of the "Muhtasib" been defined. Sometimes, his jurisdiction was limited, and some other times, boundless.

In studying these jurisdictions, the jurisprudents only set examples, without going deep into the subject.

But could such examples be based on established rules ? Could we distinguish between the jurisdiction of the"Muhtasib"and that of the judge, or of the complaints administrator? Could this subject be studied objectively rather than historically ? Would the punishment left to the discretion of the "Muhtasib" for minor offences be the same like those imposed by a judge ? Was a crime without any prescribed penalty left entirely to a "Muhtasib" ?

Like the "Muhtasib" the judge could pass a discretion verdict on a minor offence. But what was the criterion between the discretions of the two institutions ?

Historical studies showed that the `Muhtasib" had enjoyed several powers. He combined under his authority the powers of the deterrant and the judicial Police and that which gave him the right to pass judgement on the offences he himself had detected. Secondly, it was for him to take action in cases of summary justice which needed no delay had they been referred to a judge. Thirdly, the "Muhtasib" was to pass a judgement on whatever situation he had seen before him in cases of red-handedness where the evidence was clear objectively and religiously. If the case lacked this condition, it had to be referred to a competent judge. Lastly, under his jurisdiction, the "Muhtasib" was to investigate civil, religious and certain criminal offences. His civil jurisdiction, in fact, could be used as a basis for a civil prosecution, a system Egypt is still lacking. However, the public prosecutor in Egypt is carrying out the same duties of the "Muhtasib" in certain civil cases. He immediately, and quickly, decides cases of free tenure or taking possession of property. In minor criminal offences, some legislations allow any prosecutor to issue a criminal writ, as in conmatters fall under the jurisdiction of a judge. It is not surprising then to see that the "Muhtasib" combined under his authority, but in certain cases, the functions of a prosecutor and those of a judge. It is not also surprising to note that the "Muhtasib" was allowed to investigate civil as well as criminal cases. But it is to be stated here that when the "Muhtasib" or the judge had exercised their powers in cases of minor offences for which punishment was left to their discretion, the investigation and the punishment imposed on the offender had violated the legal principle that no crime or no punishment he imposed without a lawful text prescribed before the action entailing criminal responsibility. This is what is seen on the surface, but the fact is contrary to that. All the minor offences are mentioned in the Quran and the Prophetic sayings as well as in the unanimously agreed to decisions by jurisprudents.

To enjoin good and forbid evil, for instance, is a matter which has not been left by Islam to the jurisdiction of a judge. The Holy Quran has prohibited the Muslims from assembling in front of a mosque after saying the Friday congregational prayers. It says : "But when the prayer is ended, disperse abroad in the land."^{[Surat Al-Jumah (The Congregation) : 10.]} The Quran orders that before entering a house, permission for this must be obtained. It says : "O, you who believe; enter not houses other than your house, until you have asked permission and saluted their inmates."^{[Surat Al-Nur (The Light) : 27.]} Similarly the Quran prohibits espionage and backbiting. It says: "And spy not nor let some of you backbite others." ^{[Surat Al-Hujurat (The Apartments) 12.]} The Prophet Muhammad had asked people not to do harm to others or to linger on the road except on certain conditions. Referring to the first case, the Prophet said, "Do not do harm either to yourself or to anyone else", and to the second case he ordered his Companions " not to sit across a road". When he was told that at times they had to sit, the Prophet said : "Then, give the road its own right." They enquired in exclamation "But what right a road would have ?" To this, he replied : "To answer the greetings ; to stave off harm ; to lower your gaze; and to enjoin good and forbid evil".

These were only a fexamples of the principles enshrined in the Quran and the Sunnah (Prophet's Sayings). To charge someone with a crime, the judge the "Muhtasib" must not convict him on their own or out of personal inclination. Similarly, the judge would never pass a sentence on an offence on his own discretion or according to his own innovation. The verdict that he had to give for such offences, such as correcting a certain situation, censure, beating, flogging, imprisonment, banishment from the land, or keeping someone under house detention. ^{[In Surat Al-Nisa' (The Women), the verse 15 states : "And as for those of your women who are guilty of an indecency, call to witness against them four witnesses from among you; so if they bear witness, confine them to the houses until death takes them away or Allah opens a way for them."]} these were all prescribed by the Quran and Sunnah. The duty of the judge and the "Muhtasib" in such cases was only to apply the already imposed penal ties for the offences adjudged by legislators as crimes. There was a great authority they had to individualise the penalty according to the prevailing circumstances. The new trend in positive criminal jurisprudence has reduced the severity of law in minor and summary cases. As regards traffic regulations which, according to Islam, were within the jurisdiction of the "Muhtasib", the present executive authority is authorised to incriminate and to decide the penalty and, sometimes, to execute the penalty without referring the case to a judge.^{[This is done either by criminal writs issued by assistant public prosecutors ,who, originally, are not judges, or by reconcilitation and payment of fine on the spot without referring the case to a complete judge.]}

Deterrence by Judicature

Judicature was practised by all countries of the world since days immemorial. Not a single country or a community, in whatever shape it was formed, would have lived without a judge to settle disputes and pass judgements on offenders.

In pre-Islamic the Arabs practised this system and the judge was called a ruler. The same nomenclature was also given by the Romans to the judge in ancient days. Calling a judge a ruler in ancient communities was based on a historical basis. It was custom then that the supreme ruler was also the judge and whenever a competent judge was found and appointed, he was to derive his authority from the ruler.

At the advent of Islam, the Prophet Muhammad was ordered to investigate and settle disputes. In the Quran God told the Prophet "But no, by Lord; they believe not until they make thee a judge of what is in dispute between them, then find not any strainess in their hearts as to that which thou decidest and submit with full submission".^{[Surat Al-Nisa' : 65.]} There are other Quranic verses all of which are carrying the same meaning.

When Islam spread out and disputes and differences multiplied, the Prophet Muhammad appointed judges, among them were the Imam Ali Abou Talib and Maaz Ibn Jabal, both of whom were sent to Yemen. This system was later followed by the Umayyad and Abbaside Caliphs.

Under Islam, there were certain conditions required for a man to hold the post of a judge. These conditions aimed at protecting the judge from deviation. Among these conditions were the following:

1. 1 - The judge should have been of good repute ;
2. 2 - He ought to be well versed in all the Islamic laws and able to use his discretionary judgement.

3. 3 - During the Abbaside reign, a chief justice Abou Yusuf, was given the authority to appoint other judges and asked to supervise their conduct, and dismiss them if this was found necessary

4. 4 - Some judges were appointed to hear only certain cases or to serve certain localities. Umar Ibn Al Khattab was quoted as having ordered one of his judges to "discourage people from coming to me complaining of minor things". It was reported that the princes of Basra had appointed judges each one covering a certain locality to hear cases involving 200 or 20 dinars, or less:

5. 5 - More than one judge were allowed to hear a case. This was the viewpoint of the Hanafites, the Hanbalis and some of the Shafei Sect :
6. 6 - Verdicts could have been attacked even before the same judge who had passed them.

In "Risalatul Qada", Umar Ibn Al-Khattab, giving directives to a judge, said : "If you have found that a sentence which you have passed the same day was unjust, you have to set it right later. Justice is a deep- rooted virtue and to resort to fairness is better than to continue to be in the wrong." It was also allowed that one would attack a verdict before a judge who was senior in rank than the judge who had passed it. when Ali Ibn Abi Talib was in Yemen, he passed a sentence in a certain case. Dissatisfied, the adversaries appealed to the Prophet Muhammad, but the Prophet circumstantiated Ali's judgement.

It was also possible that a sentence would be Reversed for its contradiction to the law, i.e., its contradiction to the unanimity of scholars' views or to the well-established rules, or to the clear text and analogy.

In the history of Islam, all the criminal and civil law suits were within the general jurisdiction of the judicature. But when the State spread out, certain congnizances were separated from general concurrent jurisdiction, among which were that of epostulations, which resemble the civil judicature of our present times, and the "Al Hisbah" jurisdiction which was based on the principle of enjoining good and forbidding evil. With these two jurisdictions excluded, the judicial jurisdiction remained general. Criminal and civil judicial jurisdiction was distinguished by the deep doctrinal study and correct application of law. If the complaints council desired to apply a religious principle or make a thorough investigation of a certain case by hearing witnesses or receiving statements under oath, it was only the judge who had the auditory to administer justice though the authority seemed to be that of the complaints caretaker or the "Al-Muhtasib".

In Islam, the role of the criminals judge was not confined only to the application of law, but he had to play a social part in combating crime, especially in cases of prescribed sentences. It was within his power to pass a severe or a light sentence or to choose the penalty he deemed fit. The judge was also allowed to go beyond the set punishment and to pass even a death sentence if he was convinced that the defendent was so dangerous that he would not be deterred if only the prescribed sentence was passed on him.

1- Background

Reconciliation and Arbitration Instead of Force :

      In primitive communities, the use of force was the only means for settling disputes, either those which erupted internally or those which existed between them and other communities. But by virtue of the chieftains of these communities, the use of force in settlement of domestic disputes was abandoned, and such differences were resolved only by reconciliation. The use of force was abandoned after they had seen the destruction and annihilation the wars entailed. Reconciliation was made either by excluding the offender from his community, by handing him over to the victim or his community, by retaliation from the offender alone, or by payment of damages to the victim. The two disputing parties would come to terms either with the help of a third party, or without it. But with the advancement and development of these communities, their disputes were referred to arbitration by one or more than one arbitrators who were agreed to by the two disputing parties. But this development in the primitive communities could not completely eradicate from minds the idea of restoring to force, because, at that time, there was no high authority which would force the disputants to accept reconciliation or arbitration. Any community, however, was free to reject any decision taken through arbitration and resort to force in settling its disputes. The use of force had not been completely abandoned except after the state had been formed replacing the tribe in the political field. Only then would the state impose its authority on disputants after formulating a legal system which defined the individuals' rights and another judicial system under which they would settle their differences.

Types of Reconciliation and its Impact on Ancient Laws:

A. Expulsion of Offender:

This is another type of reconciliation. The tribe would hand over the culprit to the victim or to his community for retaliation. Articles used in doing the harm in question would also be delivered together with the offender. The Roman Law included a number of applications of this system. The head of the family, for example, was responsible for any damage made by any member of his family or by a tamed animal he was keeping. He had to hand over the causer of damage to the victim or his people or pay a specific fine as ransom. Even the Greek Law had adopted the same system. It relieved the family of responsibility if it would deliver the offender, whether he was a person, an animal or an inorganic substance, to the victim or his community. Also the Islamic Law had applied the safe principle. It was unanimously agreed to by the Muslim jurists that if a slave had committed an offence, his master was compelled either to hand him over to the victim or to pay a ransom.

The same system has also been accepted by modern laws. According to Clause of the Egyptian Maritime Trade Law, a ship would be given by its owners to any creditors whose debts remained unpaid for any reason other than negligence on the part of the captain.

The ancient English Law had enjoined that any criminal had to cede the object with which he killed some one else.

C. Retaliation

Previously, revenge was not taken only from the offender, but from his community too, unless the community expelled the offender or