Islamicus

PROPERTY

Ownership is referred to in the Qur’an many times: the Creator is the owner of everything; and he has made subject to human beings such creatures as the earth, the sun, the moon, the sea, the rivers, and so forth (see surahs 14.32-34, 16.12-14, 31.20, and 45-13). Vicegerency belongs to all the human race, the children of Adam who are required to act in accordance with the regulations set forth by the Real Owner. Shari `ah. (Islamic law) considers property rights as God given and God regulated.

In legal terms, personal property, which is referred to in many Qur’anic surahs, is defined in shari`ah as “an exclusivity over an object vesting the owner, alone and on owner’s own behalf, with a legal authority of its use and enjoyment and of its disposal except when legally restricted” (Abbadi, 1974, vol. 1, p. 150). The object of personal property can be material or abstract, and it covers intellectual as well as financial properties. Under all circumstances, the object matter of personal property carries a moral and religious connotation according to Islamic law. For instance, since Islamic moral standards condemn alcoholic beverages and other intoxicating substances, these cannot be an object of personal property, that is, they cannot be owned by a Muslim. The same applies to swine and its products, as they are religiously prohibited in Islam. Shari`ah makes exception for religious minorities inasmuch as their own moral standards permit. Thus, under Islamic law, property rights apply to alcoholic beverages owned by a Christian or a Jew and to swine owned by a Christian. Hence, an Islamic court can hear a dispute about them, although it cannot hear a dispute if those things belong to a Muslim.

The first and most important implication of the shari’ah definition of property is that ownership in Islam is a right or collection of rights allowed by God, the Ultimate Lawmaker, not by society or its legislative authority. By no means do the society and its lawmaking organs have any legislative power to alter the basic rights laid down by God. Property rights are therefore granted by Alldh, they are not a societal function decided by society (Abbadi, 1974, vol. 1, pp. 426-39).

Second, private property is protected by shari`ah. itself. Shari’ah in Islam is the divine law whose essential landmarks and principles are given in the divine revelation and whose details are worked out by human beings on the basis of the godly revelation as manifested in the Qur’dn and the traditions of the prophet Muhammad. Therefore, a shari`ah. protection is an eternal protection, according to the Islamic system. This protection stands against any possible transgression from the government as well as from other persons.

Third, property rights entitle the owner full authority to use, benefit from, exploit, and dispose of the owned object. Muslim jurists usually use the rule “owners are absolute masters of their properties,” which implies a wide range of economic freedom. This is, of course, within the limits of shari`ah. which regulates private and public properties and forbids unfair exchanges.

Fourth, property rights are free of any prejudice on the basis of sex, religion, or ethnicity. The Islamic shari `ah. equalized men and women with regard to property rights, preceding most other legal systems and cultures.

From the point of view of the property owner, jurists distinguish between two kinds of property: private and public. Some Islamic writers like to add a third category, waqf, (religious endowment) property. Although its use is restricted to the purpose designated by the donor, waqf, property is considered owned by private parties (donor or beneficiaries) by most Muslim scholars. Some, however, believe that once designated for its philanthropic purpose, the waq f becomes a property of no one but God. [See Wagf ] Private property is individually owned by private persons.

Public property is owned collectively by the whole society or community. It covers things that benefit all members of a society or a majority of them, such as roads, rivers, forests, parks, lakes, natural springs and fountains, pasture lands not privately owned, and so forth. It also includes land not privately owned, land designated for community use around villages and towns, and mineral resources.

An Islamic government, according to shari `ah. is the authority that administers public property on behalf of people and in their best interests. From the point of view of regulating governmental power in this regard, public property can be divided into three types (some jurists prefer a threefold classification to start with; accordingly, property can be private, state, or community):

1. Public property designated for community use, such as roads, rivers, and mosques. This type of public property cannot be sold or disposed of by the government nor can it be acquired or owned by private persons. However, if a community public property ceases to produce its desired benefit to the community and becomes deserted, the government can substitute it for a new property that can give similar benefit. Community property includes pasture and firewood lands surrounding villages.

In many African countries, community public lands still exist. They are related to a tribal social system. This is a dominant form of land ownership in pastoral areas, but it is also present in farming areas. This land, owned by tribal farming communities, is called ardshi land in Algeria and Tunisia. Usually, tribal customs and traditions determine the distribution of communityowned lands among families for cultivation, and except for `ushr–10 percent of total agricultural products if the land is rain or river fed and 5 percent if it is irrigated by underground water, which is zakat (alms) on agricultural products-there are no taxes or fees levied on families using collectively owned lands. `Ushr is usually distributed to the poor and needy by tribal chiefs with the help of the village mosque’s imam (prayer leader). [See `Ushr.]

A special kind of community public property is called hima (“protected”) land. This is a lot of land appropriated by the government for a specific use, military or philanthropic. `Umar, the second caliph after the prophet Muhammad, assigned certain lots for the army’s horses and camels and for the cattle of the poor and needy.

2. Nonused public land covers all lands that are not included in economic production. In shari`ah terms, this land is called mawat (“dead”). Individuals have the right of ihya’ (“revivification”) of mawdt land, putting this public land into economic use, and this is considered a sufficient cause for earning private ownership of the land. The Islamic state can organize the exercise of this right, but it cannot eliminate it.
3. State public property. This category covers all other public properties whereby the only shad `ah. restriction on the behavior of the government is the criterion of serving the best interests of the people.

Shad `ah. recognizes six causes for personal property rights:

1. Lawful work in acquisition of unowned mobile things, such as obtaining water from a river in a container, hunting, and collecting firewood.
2. Revivification of nonused public land. Land revivification implies making it productive in agriculture, industry, or any other economic use. This means that mere acquisition of land by fencing or demarcation does not create a right of ownership.
3. Growth of an already owned property with or without labor involved. This growth includes fruits of owned trees and offspring of owned livestock. It also includes increments in value of owned merchandise.
4. Contractual relationships including exchange contracts, such as sale and hiring, contributory contracts, such as those involving gifts and last wills, and acceptance of religious and legal spending obligations, such as taking zakat payment, alimony, money solemnly vowed to certain lawful purposes, and expiatory payments determined in shad `ah. for committing certain sins, such as breaking the fast in the month of Ramadan or making certain mistakes while performing hajj (pilgrimage to Mecca).
5. Tort liabilities which create a right of compensation.
6. Inheritance, where details of heirs and their shares are mostly given in the Qur’an.

Noticeably, the first three causes create new property rights, while the last three transfer an existing property from one person to another.

There are three means of obtaining property which shari `ah. does not recognize: noncontractual acquisition of property belonging to others, including theft, swindling, plundering, looting, usurpation, acquisition by coercion, and fraudulent practices; acquisition of nonused land without its revivification (this kind of acquisition is usually done by demarcation and is called tahjir or “demarcation by stones”); and exchange relationships that are either invalid or prohibited in shad `ah. Invalid relationships include contracts lacking some of the basic requirements, such as consent of contractors. Prohibited exchanges include: interest on loans, since the Qur’an mentioned that a lender is only entitled to get the principal back and considers any increment as oppressive (surah 2.219); income from gambling (surah 5.90-91); bribery and similar exercises; and contracts whose object is condemned in shad `ah. such as transactions of prohibited substances like alcoholic beverages, and prostitution.

Things acquired by prohibited means remain the property of their original owner and should be returned to him or her or to the rightful heirs. If owners or heirs do not exist, such things should be disposed of for charitable purposes on behalf of the true owners.

Shari’ah distinguishes between two kinds of restrictions on property. The first kind of restrictions concerns the use and disposition of one’s property. As the objective of property is the benefits and enjoyment derived from owned things, shari`ah’s regulations aim at assuring that property fulfills its objectives. The Qur’an ordains making one’s best appearance and condemns those who prohibit adornments, beautiful living, and good things of sustenance (surah 7.31-32). At the same time, the Qur’an forbids wastefulness, “for God loveth not the wasters” (surah 7.31), and considers spendthrifts as “brothers of the Satan” (surah 17.27). This led Muslim jurists to treat wasters and spendthrifts as legally incapable of using their own property and to subject them to legal guardians (Abbadi, 1974, vol. 2, pp. 86-96).

On the other hand, the use of one’s property is constrained by others’ rights. This means that extracting benefit and enjoyment of one’s property must not be at the expense of the rights of other individuals or of the society as a whole. Islamic law disallows this kind of exercise regardless of personal intention and charges the harm-doer to compensate the injured. Examples of such actions are raising one’s building to an extent that reduces the ventilation and sunshine reaching a neighbor’s property (individual harm) and monopolistic practices (societal harm).

Another type of restriction on the use of one’s property is related to inheritance and last will. Since the True Owner of all properties is God and private property is only a divine grant, the ownership right holds as long as the owner lives, but on death it goes back to the True Owner. The inheritance law in Islam is strictly founded on this principle. Shares are assigned to different heirs by God in the Qur’an, and the owner has no right to change these shares under any circumstances. The heirs in shari`ah are sons and daughters, parents and grandparents, spouses, brothers and sisters, uncles and aunts. Their respective shares are given according to a sophisticated chart dividing the estate. However, a person may make a last will, provided that it does not cover more than one-third of the estate and it does not alter the relative shares of the heirs. Permission to make a last will is called “a charity from God on us” by Abu Bakr, the most prominent companion of the prophet Muhammad.

A  fourth type of restriction on one’s property is based on contractual relations, whereby through mutual consent and free will, an owner agrees to separate ownership of a property from its usufruct and surrenders one of them without the other.

The second kind of restrictions are rooted in conflict with the public interest. In recognition of philanthropic needs in any society, shari`ah institutionalized a built-in financial obligation on personal property. This is called zakat (“purification and growth”). It ranks as the third pillar of Islam after pronouncement of faith in God and his messenger and performance of prayers. This financial/religious obligation on property has, generally, a rate of 2.5 percent of the value of property with exemptions related to living expenses. The Qur’an exclusively specifies eight categories of potential recipients and heads of expenditures for the proceeds of zakat, and all but one are of a charitable and community service nature, the exception being the cost of collection and distribution of zakat itself.

Besides this obligation, other financial duties or taxes on personal property are determined by the needs and interests of the society if the stream of public revenues coming out of public property proves to be insufficient. Such taxes are of temporal nature and are determined by the legislative branch of the state.

[See also Economics, article on Economic Theory; Inheritance; Land Tenure; Taxation; and Zakat.]

BIBLIOGRAPHY

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