political fragmentation and cultural diversity 265as well as in customary law, 'urf. Others were of the opinion that he
must be able to give opinion on matters related to customary law,'urf,
but not on those of the revealed law, sharia’. Ibn al-Ukhùwwah ex-
plained further that the difference is based on the fact that the prin-
ciple in revealed law, sharia’, rests upon the body of Sharì"ah whereas
in customary law, 'urf, the dominant factor is usage and practice.
In drawing the lines between the domain of different government
authorities in observing market conditions Ibn al-Ukhùwwah dif-
ferentiated between the authority and responsibilities of the Muœtasib
and those of the judge (court). He states, “The Muœtasib authority
is greater than that of the judge in that he may proceed indepen-
dently of any complaint to investigate cases where he suspects ille-
gality, whereas the judge can proceed only where there is a complaint.
Further, he has a measure of secular authority and has the right to
use force in pursuance of his duty and to inflict punishment. In these
respects the Œisbahresembles the work of some courts, court of maza-
lim, but it differs from it in being incompetent to hear cases beyond
the jurisdiction of the judge”, (Ibn al-Ukhùwwah, Levy, 1938).
Concerning the level of authority of the Muœtasib, as a market con-
troller, Ibn al-Ukhùwwah emphasised that it ought to be limited to
the specific authority delegated to him by the sovereign. Also, in
exercising his duties, the Muœtasib should not over involve himself
in people’s affairs beyond what his office would require.
Turning his attention to commercial transactions Ibn al-Ukhùwwah,
in chapter six of his Ma"alim, clarified what may be regarded as
legal and acceptable and what may be considered invalid and for-
bidden. In determining what is legal or otherwise an examination
should involve three basic factors: the contractor, the subject of con-
tract, and the form of contract. The general purpose of invalidating
the transaction is the protection of the parties to the contract.
Businesses should not be contracted with persons under age, lunatics,
or people with physical disability in as much as the physical disability
may have a bearing on the condition of the transaction. Blindness
is an example of the last case. Interestingly, this is in line with mod-
ern statutory laws. For example, in modern law we may find that
some transactions are invalid if the contractor is under eighteen years
of age. Six conditions are laid down by Ibn al-Ukhùwwah to validate
the subject of contract. These are: (a) the subject of contract may
not be ritually unclean either by essence or by association such as in
the case of contamination, (b) the subject of contract should be of