Prepared by Dalia al-Hussaini with Majd Musa and Mohammad al-Asad, 2005
Transcription of Arabic lecture provided by Diala Anabtawi
An audience member noted that issues relating to the built environment in the traditional Arab city were examined only in case a complaint was presented to court. On the other hand, modern laws and regulations are concerned directly with actively tackling urban problems, such as sewage drainage, disease containment, and access to air and sunlight. The questioner inquired whether there were regulations in the Arab-Islamic city regarding public health and air and sunlight rights that were in effect and that would have prevented people from committing violations regardless of whether there were complaints or not. Al-Hathloul responded that in the Arab-Islamic city it was the judges' foremost concern to preserve the public good, and that this preceded any personal benefit. For instance, there were elaborate discussions on the issues of public health and air and sunlight rights. A structure was never allowed to cover the whole street, and prevent sunlight and air circulation. However, al-Hathloul pointed out that there were no specific quantitative regulations governing these issues as there are today, but that the opinions of experts known for their experience and knowledge were referred to when the public good was infringed upon or adispute arose between neighbors.
Lastly, the noted historian professor Abd al-‘Aziz al-Duri (8), who had attended this session, was asked to comment on legislation relating to the Arab-Islamic city. Al-Duri started by pointing out that in Islamic history the Arab-Islamic city went through various developmental stages in response to myriad political, social, and economic factors, and according to the purpose behind a city's inception. Therefore, when a city is discussed, the discussion should specify a certain period in this development. For instance, the establishment of the earliest cities such as Basra and Kufa (638) represented one stage; the establishment of Wasit (705) represented a second stage; and the establishment of Baghdad (762) represented a third.
With regard to the issue of space in the Arab-Islamic city, al-Duri referred to Basra as an excellent example showing the two types of open space in the city. The first type of open space being the plaza (often referred to as a ziyada) surrounding the central mosque; and the second type being the space belonging to each tribe, which could house the tribe's own mosque or remain an open space where various tribal activities could take place.
On the issue of regulation, al-Duri discussed the example of planning the markets in al-Karkh outside the Round City of Baghdad (al-madina al-mudawwara; the site of the round city (established in 762), along with the neighborhoods of al-Karkh, al-Rasafa, and al-Harbiyya, all of which are located outside the Round City, constitute the old city of Baghdad). Ten years after the establishment of the markets, violations were noted in that markets were being constsructed beyond the area designated as such. Consequently, markets violating the regulations were demolished. According to al-Duri, in this case, no complaints were made, and the actions were taken to ensure compliance with the regulations set forth for the markets.
Al-Duri also noted that while a judge only considered complaints brought forward to his attention, it was the muhtasib's duty to regulate and interfere wherever a violation is perceived to exist. In one example al-Duri presented, a call for prayer was made in the middle of the night in a residential area, during the reign of the caliph al-Mu'tadid (r. 892 - 902), when it was not the time for prayer. When the muezzin (mu'adhdhin) was asked why the call for prayer was made, he stated that it was to alert people in the neighborhood that a young woman was being harassed by a Turkish soldier, and that the muhtasib had not done his duty to prevent this from happening. This shows how far reaching the duties of the muhtasib's were defined. Al-Duri also presented the waqf as an example of the strength of Islamic institutions. For instance, the mother of the caliph al-Muqtadir (r. 908 - 932), after making a waqf, wanted to rescind her order, but this was refused by the judge who was in charge of the waqf. Even when she brought the matter to her son the caliph, he told her that the authority in matters of the waqf were in the judge's hand. Al-Duri explained that waqf institutions provided health services, relief for the poor, assistance to pilgrims, educations, and much more. Other institutions in the Arab-Islamic city included the mosques, hammams (public baths), and madrasas (educational institutions).
In conclusion, al-Duri commented on the issue of legislation and flexibility afforded in Islamic legislation. He pointed out that legislation does not start with the placement of rigid rules, but rather that society and its practices evolve and that Muslim scholars would crystallize the rules following that. Al-Duri believes that practices come first, followed by the rules that would regulate them, stressing the principle of ijtihad (the use of individual reasoning) that allows differences in interpretation within an Islamic framework.