Concept of Property under Islamic Law

By | May 12, 2020
Property under Islamic Law

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Concept of Property under Islamic Law Overview

Introduction

This article ‘Concept of Property under Islamic Law’ revolves around analyzing the concept of property under the different schools of jurisprudence under Islamic Law and mainly under Sunni Law.

Under the Sharia Law (Islamic Law), the commonly used term for the property is ‘al-mal’. Something that can be hoarded or secured for use at the time of need. There are three attributes of al-mal: that it must have some value, that it must be a thing the benefit of which is permitted under the Islamic law, and that it must be possessed. It is of two kinds in respect of form: al-mal al-batin (hidden) and al-mal al-zahir (apparent). But in respect of ownership it is classified into al-mal al-‘ammah (which has no specific owner) and al-mal al-khassah (which is owned by someone).[1]

Professor Kamali defines property as: ‘Anything that has a saleable value, and destroying which could entail to compensation, even if a small amount, yet not so small that people would not consider it to be of that value [i.e., of no value] such as a grain of wheat or handful of grass’.[2] Majority schools of Islamic law seem to share some common understanding of al-Mal except the Hanafi School.

Different Schools of Islamic Law

The best-known split, into Sunni Islam, Shia Islam, and Kharijites, was mainly political at first but eventually acquired theological and jurisprudential dimensions. Sunni Islam, also known as Ahl as-Sunnah wa’l-Jamā’h or simply Ahl as-Sunnah, is the largest denomination of Islam. The Sunnis believe that Muhammad did not specifically appoint a successor to lead the Muslim ummah (community) before his death; however, they approve of the private election of the first companion, Abu Bakr.[3]

Shia Islam is the second-largest denomination of Islam, comprising 10–20% of the total Muslim population. In addition to believing in the authority of the Quran and teachings of Muhammad, Shia believes that Muhammad’s family, the Ahl al-Bayt (the “People of the House”), including his descendants known as Imams, have special spiritual and political authority over the community.[4]

In regard of the Religious Jurisprudence, the different schools of thought under Sunnism are the Hanafi school, founded by Abu Hanifa an-Nu’man; the Maliki school, founded by Malik ibn Anas; the Shafi’i school, founded by Muhammad ibn Idris ash-Shafi’i; and  the Hanbali school, founded by Ahmad ibn Hanbal. Majority schools of Islamic law seem to share some common understanding of al-Mal except the Hanafi School.[5]

Property under Islamic Law (Sharia Law)

In order for something to be considered as al-mal, it should meet four characteristics:

  1. it should be desired by human beings
  2. can be stored for future use
  3. can benefit human beings
  4. and rules of expenditure and scarcity applies to it.

Only Mutaqawwim is subject to a full range of personal or business transactions and an owner is entitled to compensation if it is unjustly destroyed or expropriated. One thing which is important to be noted is that Hanafi makes a distinction between the legal definition of “thing” and “thing” in general. It is a general principle that all the properties are things but all the things cannot be considered as property. Mahmassani suggests that a thing implies whatever exists in reality, while property must have certain attributes distinct from those of a thing in general.

The Shafie School, on the other hand, focuses on the usufruct aspect and provides a broader definition of al-mal – anything that is capable of benefiting people. Imam Al-Suyuti’s says that al-mal should not be construed except as to what has value with which it is exchangeable; and the destructor of it would be made liable to pay compensation; and what the people would not usually throw away or disown, such as money, and the likes.

The Hanbali School defines property as something from which it is permissible for a Muslim to lawfully benefit without resulting from pressing need or necessity. Al-Buhuti indicates that things that are excluded from this definition are things in which there is no benefit in essence such as insects, or where there might exist benefit but it is legally prohibited such as wine, carcass and pork except in a situation of dire necessity.

Al-Shatibi under Maliki School says al-mal is the thing, which can be owned, and once ownership is conferred to an owner, it excludes others from interference. He affirms that property is the subject matter of ownership – that allows an individual to claim over something and exclude all others from its enjoyment.

Hence, there is no unanimous definition of Property under Islamic Law. Al-Mal can be defined widely and factors that are relevant in defining are:

  • whether or not something can be possessed and owned;
  • whether something is beneficial for human beings;
  • the benefit must not be excluded or prohibited by Shari’ah;
  • commercial value – Should be desired by others;
  • transferability or alienability; and
  • storability – whether something can be stored for the future benefit

These are the factors which are important in determining whether something can be considered as property or not.

Concept of Ownership

The Concept of Ownership and the Concept of Property are though relevant to each other but are distinct concepts under the Islamic Law. The Islamic law considers Allah as the true owner and the absolute ownership lies with him. The Vice-Regency theory under the Islamic law proposes that Allah is the Regent and human beings hold all property that they possess in trust in the name of Allah as a Vice-Regent and beneficiary.[6] This theory recognizes human discretion and sense of good conduct in spending the wealth or benefits gained from the property while retaining the Right of God.

Ownership under Islamic Law is recognized as a bundle of rights over something that is recognized as property. And Property is recognized as a substance that lawfully made together with its usufruct, the object of ownership right. The word al-mal is a subject to milk or malikiyah thus when it is said that X is the malik of Y (al-mal), it implies that X has malikiyah (ownership) over Y.

Al- Qarafi under Islamic law is a ruling of Sharia (hukum shar’i), or a juridical attribute (wasf shar’i), which is specified in an object or usufruct (mana’fa) and enable a person to control, dispose of in any manner he wishes provided that there is no legal impediment against it. Ownership in Islamic legal term is the exclusive relationship between a human being and property that recognizes and attaches a specific property to an owner and gives her the right to deal with it in whatever way she prefers unless there is a legal impediment preventing such dealing.

Ownership can be further classified into two categories (a) complete (tamm) ownership and (b) deficient (Naqis, da’if) ownership. Complete ownership under Islamic Law provides that the owner has full rights over both substance and usufruct of the property. And, the concept of Deficient ownership provides, when the usufruct and the object are¡ separate at least for a separate period of time and the owner has control over one but not both at the same time.

Concept of Possession under Islamic Law

The word “yad” is used to describe possession under the Islamic Law and Possessor is denoted by the word ‘dhul yad’. Possession under the Islamic Law can be classified mainly under two categories which are i) Legitimate Property and ii) Illegitimate Property. Under Islamic Law, the legitimate property is denoted by the word ‘yad muhikka’. On the other hand, the illegitimate property is denoted by the word ‘yad mubtila’.

Different terminologies are used for lands for different legal ramification and specification. ‘ghasb’ is a term which is used to denote unlawful acquisition of land under the Islamic Law or Sharia Law. It also denotes to the highest degree of liability but no mandatory punishment. Under the Islamic Law ‘Ghasib’ is required to return the property and is liable for all damages.

Conclusion and Legal Implications

The Concept of property under the Islamic Law or the Sharia Law is defined very widely and flexibly. Property under the Islamic law is that Property can exist without an owner if the property possesses the qualities which a thing must possess to be considered as property as mentioned above in this Article. Once something is recognized as property, then it depends on the nature of the property and the interest that an owner is entitled to, as to whether the property can be assigned to complete or deficient ownership.

The Shariah court would not have had difficulty in recognizing spectacle as property and then assigning ownership to it since the property is defined widely and flexibly. The information on the spectacle was beneficial and the benefit was not excluded by Sharia. The information had commercial value as it was desired by people could be transferred to others and stored or kept secret in order to publish or use at some times in the future.[7] Therefore, spectacle could be considered as Property under Sharia Law and Ownership can be assigned to it.

Licence is recognized as property under Sharia Law because the license was alienable and there was proprietary interest – sufficient to satisfy the definition of property and possibility of renewal is not a relevant factor. A Sharia court would always recognize a license as property regardless of its transferability so long as it has commercial value and can be benefitted from. The Sharia court would rather award the creditor deficient ownership to take the usufruct from the license until the debt it paid off.

However, a donated sperm would have a different determination and it is a very good example of the case where it is satisfying the relevant factors to be considered as a Property still the Sharia Courts do not consider as Property. It cannot be recognized as property for Muslims though it meets relevant factors for the property (i.e desired by people, has commercial value, can be owned, stored, transferred and benefitted) because the benefit is excluded by Shariah. On the other hand, it can be recognized as property for non-Muslims since the benefit is not excluded for them in the same way pork and wine are recognized as “mutaqawwim” property of value for non-Muslims.

The Islamic Law (Sharia Law) and the Common law both shares a wide range of similar principles especially in case of Property Law. There are slight variations regarding the definition of Property under the different Schools of Islamic Law but the Property under Islamic Law is still defined widely and flexibly. Due to this flexibility and wide range of definition of Property under the Islamic Law, Islamic Law can avoid the challenges which the Common Law Courts are facing while upholding the moral and religious standard that the law is intended to promote.

Islamic Law helps in distinguishing the concept of Property from Ownership. All the properties can be considered as a thing under Islamic Law. Islamic Law recognizes the rights and obligations that determine the legal relationship under the concept of ownership. The Sharia Law or the Islamic law defines and explains the concept of Property, Ownership and Possession differently. Property has its own features and is subject to ownership. Existence of property does not create rights rather when its ownership rights are created. Maliki school – relative to ownership but property is still a distinct thing and subject to ownership and not merely a bundle of rights. Possession is relevant but not more important than true ownership.


References

[1] Wahbah al-Zuhaili, Dr. Al-Fiqh-al-Islami wa Adillatuh, vo. 4, p. 40.

[2] Washim Ahmed (2016) ‘Concept of Property, A comparative Analysis of Property in Islam and Common law.’, Chestnut Conference Center, Toronto University, Toronto, Canada.

[3] Razwy, Sayed Ali Asgher. ‘A Restatement of the History of Islam & Muslims’. pp. 331–335.

[4] Corbin (1993), pp. 45–51; Tabatabaei (1979), pp. 41–44.

[5] Abdulaziz Sachedina (2009). “Law: Shīʿī Schools of Law”The Oxford Encyclopaedia of the Islamic World. Oxford: Oxford University Press.

[6] Silvio Ferrari (2016) Law and Religion, An Overview, 1 edn., New York: Routledge, Taylor and Francis Group.

[7]Washim Ahmed (2016) ‘Concept of Property, A comparative Analysis of Property in Islam and Common law.’, Chestnut Conference Center, Toronto University, Toronto, Canada.


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