Legislation and the Built Environment in the Arab-Muslim City

An essay on a presentation made by Saleh al-Hathloul to Diwan al-Mimar on April 22, 2002.

Prepared by Dalia al-Hussaini with Majd Musa and Mohammad al-Asad, 2005
Transcription of Arabic lecture provided by Diala Anabtawi

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The publication of this essay is cosponsored by the Prince Claus Fund for Culture and Development.


 

 

 

Table of content:

1. Introduction

2. Legal Records

3. Right-of-Way

4. The Conception of Space 

5. The Concern for Privacy

6. Conclusion

7. Questions and Answers

8. Notes

9. List of Figures

 


 Introduction

The subject of this Arabic-language lecture was based on Saleh al-Hathloul's (1) Ph.D. dissertation at the Massachusetts Institute of Technology (1980) and his book The Arab-Muslim City: Tradition, Continuity and Change in the Physical Environment (1996). (2)

Al-Hathloul explores the evolution of the Arab-Muslim city through an analysis of pre-modern legal documents that include records from 14th-century Tunis and 16th-century Medina. The study is partly an examination of the evolution of traditions. It emphasizes a number of prepositions. The first is that traditions grow out of a community's need for continuity and regulations that govern social life. Another is that traditions are an extremely important source of knowledge, for they express the cumulative knowledge for a given society, and are the informational basis that enables a society to move forward. In spite of the importance of tradition, it should not have absolute reign in determining how society conducts itself. Tradition must be receptive to criticism, adaptable, and capable of development and change.

Tradition can be explained through studying the history of legislation. In many instances, the study of such a history is more informative than the study of traditional narrative history. Legal history generally presents a more candid and accurate representation of the past than narrative history, which represents a subjective view of given historical events. Al-Hathloul also emphasizes that in the Arab-Muslim world, continuity with many of our traditions has been lost, and with it a considerable knowledge base that could have been developed upon in the modern era.


 Legal Records

Al-Hathloul's work concentrated on exploring and explaining how traditions relating to the making of the Arab-Islamic city came into being. This he achieved through the study of legal records, which come in two forms. The first consists of manuals of hisbah, written between the 11th and 14th centuries, specifying the obligations of the muhtasib (a municipal officer responsible for public morals and regulation of markets), and accounts of actual cases from Tunis related by Ibn al-Rami in the first half of the 14th century, and from the court records of Medina since the 16th century addressing practical issues observed in the city. The second type of record is that of theoretical issues, which are documented in the opinions, discussions, and theories of the fuqaha' (Muslim jurists) from the first three centuries of Islam (7th through 10th century). He further explained that his study focused on the Maliki school of Islamic jurisprudence (3), mainly because the written materials relating to this school were readily available and easily accessible to him, and because most of the inhabitants of both cities in his study (Tunis and Medina) were followers of the Maliki school. This presented the opportunity to study the applications of a theoretical knowledge base in the practical arena through actual events.

Al-Hathloul presented issues to be studied through both the intellectual materials and the practical examples at hand. These mainly concentrated on the right-of-way, the conception of space, and the concern for privacy.


 Right-of-Way

Al-Hathloul discussed how Muslim jurists categorized roads. The categories include through streets, known as tariq al-muslimin (the road of the Muslims), which scholars viewed as public, and in which all inhabitants had a right-of-way. There also were lanes and cul-de-sacs, which the jurists viewed as semi-private roads, pertaining only to the surrounding properties.

The supervision of public roads in the Muslim city mainly was the duty of the muhtasib. One book that elaborates on the role of the muhtasib is that written by Ibn al-‘Ukhuwwa (d. 1329), himself a muhtasib. In his book, Ma'alim al-Qarya fi Ahkam al-Hisba, Ibn al-‘Ukhuwwa discusses roads, and states that people should not be allowed to sit in narrow passages, nor should they be allowed to extend a ceiling to cover an alley, since these are violations that restrict the movement of pedestrians. Al-Hathloul commented that Ibn al-‘Ukhuwwa's text is very elaborate and detailed from a legal point of view. It discusses issues such as the prohibition of draining water gutters into narrow alleyways so as to limit slippage hazards for those passing through the alleyway. It was the muhtasib's duty to ensure the implementation of such regulations.

On the theoretical side, al-Hathloul examined the documented opinions of Muslim jurists regarding roads. These range from Imam Malik ibn Anas (d. 795) to some of his students, and also students of his students, such as Ibn al-Qasim (d. 807) and Sahnun (d. 854).

 

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