Tuesday, June 3, 2008
Ownership and right to property is the inherent right of a man to exercise his rights over property which he possesses and control with obligations connected therewith in the property acquired, such as to use for his own pleasure, to transfer and to extinguish his right by way of transfer if he chooses. (Note: the term inherent is use to denote that relationship).
Every human being has a right as inherent to his status to make such use of his physical and mental faculties as he chooses, provided he does not interfere with similar liberty of others. It is by the exercise of this inherent right that rights and obligations connected with property are mostly acquired, transferred or extinguished
Definitions of Ownership by western Jurists:
Austin’s definition; “Ownership means a right which avails against everyone who is subject to the law conferring the right to put thing to user of indefinite nature.” Full ownership according to him is “a right indefinite in point of user, unrestricted in point of disposition and unlimited in point of duration.”
According to Hibert, “Ownership involves four rights and those are the right of using the thing, excluding others from using it, the disposal of the thing and the destruction of the thing.”
Salmond defines it as; “Relation between a person an right that is vested in him.”
According to Buckland, “Ownership is ultimate right to the thing or what is left when all other rights vested in various people are taken out.”
The word used by Muslim jurists for ownership is milkiyah and that used for property is mal. The term al-milk, however, is sometimes used for ownership and at other times for the subject matter of ownership.
Ownership is defined by Muslim jurists as: “the relationship that exists between a person and a thing that gives absolute control and right of disposal over it to the exclusion of others.” Some of them also define it a “the relationship between man and property that has been established by the shari’ah through which he exercises exclusive control and right of disposal over it as long as there is no shar’i restriction.” This, however does not change the essential nature of the definition with respect to “control” and “exclusion of others”.
II. VARIOUS KINDS OF OWNERSHIP
Islamic concept of ownership has classified the ownership into many kinds and types. Here are I attempted some of its classifications;
A. Major Categories of Ownership
We can distinguish between three major categories of ownership: Private Ownership, Public Ownership, Waqf (voluntary sector).
1. Private Ownership
Islam recognizes the individual’s property and permits the ownership of all types of property acquired by lawful means. The authority of this sanction may be elucidated from the following verses:
“And for men is the benefit of what they earn. And for women is the benefit of what they earn.” (4:32)
“And give to orphans their property, and don’t substitute the worthless (things) for good ones.” (4:02)
Islam also recognizes the right of inheritance and obviously it can only be recognized by a system in which the people have the right of ownership. Islam considers the rich trustees and claims them to vindicate their trust-worthiness by so dealing with their wealth that it becomes wealth radiative and not wealth reflective. These trustees are answerable before Allah for the manner in which they discharge the trust reposed in this. The holy Quran says:
“And Allah has made some of you excel others in means of sustenance. So, those who are made to excel give not away their sustenance to those whom their right hands possess, so that they may be equal there in.” (16:71).
“And give them of wealth of Allah which He has given you.”
The Qur’anic verses quoted above thus make it clear that the wealth and all other instruments of wealth are mainly TRUST put in the hands of rich, with view to afford mutual benefits to all. No one is absolute master because real ownership and mastery over everything and every person vests only in Allah; others in these respective forms are no more than mere Trustees, answerable before Allah for the manner in which they discharge the trust reposed in them.
Islam gives guarantee for the safety of the property of the citizens and inflict heavy punishment on culprits. Thieves and robbers, who endanger the safety of property of the citizens and do not honour their rights are very severely punished by Islamic State. Islam condemns those who usurp the property of other people. It is explained in Qur’an:
“And (as far) the man and woman who committed theft, cut off their hands as punishment for what they have earned, an exemplary punishment form Allah.” (5:38)
“And swallow not up your property among your selves by false means.” (2:188)
Private ownership is essential prerequisite for a free society. Abolition of private property implies elimination of freedom. Freedom is most sacred in Islam. Life in Islam is worth living when it is a life of freedom. An individual is free to maximize his gains. But maximizing gains or at least getting some profits in the Islamic context is vastly different from capitalism. According to Islam, means of business should always be fair and legal. Wages should be fair and just. Production should be acceptable according to the Islamic norms i.e. it should be beneficial to the society. No “Haram” (prohibited) items should be produced. Similarly, spending of the fruits of ownership should also be within the limits set by Islam. The Qur’an tells us that we should always get our money in Halal (permissible) way.
Limits on Private Ownership
Islam recognizes the individual’s right of ownership but does not leave him entirely free to use this right in any way he likes. Islam has allowed private ownership in principle but has subjected it to such limitations as would render it absolutely harmless. It has authorized to community to enact necessary legislation to organize private ownership and to change it whenever the public interest demands it.
It is true that the government has an important role in checking the greed of the individuals. When we say that private property is essential in Islamic framework, it is not that shortcomings of private property are ignored. Private property can be misused. So, Islam tries to correct this imbalance from the very beginning in the following ways:
• Man is not considered to be the ultimate owner of property and wealth because he is not the creator. Allah is the creator of men as well as land and wealth. So that property could be used in the name of Allah.
• Morality, religion and ethics should determine human behavior. The government should intervene in order to ensure that performance of private property is not in contradiction with the interest of the society in general. The door is open for the Islamic government to play its constructive role in the economy, on the condition that there should be a real maslahah (public interest).
2. Public Ownership and Government Sector
We must distinguish between the public ownership and government ownership of the property. In past, fuqaha (jurists) have spoken about the streets and rivers, etc. and have maintained that these are owned by the community and not by the government. The prophet PBUH has stated that people are full partners in water, grazing and fire. These belong to community and the government should utilize them for the benefit of all. By the same token other jurists and scholars have added public utilities like transportation, etc. All other public utilities may be seen in the same way through Qiyas (deduction). The jurists have also spoken about al-ma’adan al-zahira (minerals on the face of earth) which are not supposed to be owned individually.
3. Waqf (Voluntary Sector)
Waqf is not mentioned in Qur’an explicitly, but it is implicit in the teachings of the Qur’an and sunnah and was done by the companions of the prophet PBUH during his life. Waqf is meant to take resources away from the private ownership and allocate them to the benefits of those who need the fruits or results of such projects.
The institution of al-waqf al-islami (Islamic trust) has played a great and important role in history of Muslims and gave the right answers to such question: why Islamic education of the past was independent of the government? Why our jurists were independent? Why our medical programs flourished to the extent that hospitals were built even for animals? Because of institution of Waqf. Thousands and thousands in Al-Azhar, in Al-Aqsa, in Egypt, in India and elsewhere got their education through the waqf.
The waqf is independent from the control of both the private sector and the government. It belongs directly to the society and is perpetual source of income to its beneficiaries. Unfortunately, most of these institutions have vanished for a number of reasons including the growing powers of our contemporary governments.
B. Types of Ownership
Ownership (al-milk) is classified in various ways. Some of these are given below:
1. Classification on the basis of participation. Ownership is classified on the basis of the person participating in the ownership into three types:
• Sole ownership. This is ownership by a single person of a particular property with all the attached rights and control.
• Co-ownership also called sharikat al-milk. When two or more persons jointly hold property it is called co-ownership. It is treated as a kind of partnership in Islamic law.
• Communal or public ownership. These are things that are jointly shared by the entire community including land, grass, fire. An individual does not have the right to exclude another person from such things, unless it has been converted to his personal ownership or possession through a legally valid mode of acquisition.
2. Classification on the basis of corpus (‘ayn) usurfruct (manfa’ah), and use (istimta’).
A person may own a thing as well as the benefits flowing from it, although he may temporarily alienate the benefits through contract, like an owner renting out this house to another person or mortgaging it as security for a debt. The Hanafis do not make a distinction between the ownership of the corpus and ownership of benefits or services for purposes of ownership. Both are attached to the same thing. The owner may contract out the use of the thing to another, but that does not make the other person the owner.
The benefit of this rule is that the other person not being the owner of the benefits does not have a right of further disposal in them. Thus, a tenant in a house cannot further sublet it. The majority of the jurists do make distinction, with some of them distinguishing between the right to manfa’ah and the right of intifa’. The word istimta’ pertains to conjugal rights. They arise from the marriage contract.
3. Classification on the basis of complete and incomplete ownership.
The word al-milk is also used to qualify other legal categories that are related to ownership, but are not ownership, but are not ownership proper. The word al-milk or ownership is employed in three senses. Milk ar-raqabah (proprietary right), milk al-yad (possession), milk at-tasarruf (right of disposal).
Thus, milk ar-raqabah is ownership proper that includes both exclusive control and the right of disposal. Possession or milk al-yad consists of exclusive control and the right the right to keep others out of such control, but it does not include the right of disposal. Milk at-tasarruf involves the right to dispose of property on behalf of the owner. This type of ownership belongs to the guardian, the executor and the agent and with some restrictions to the mortgagee and the bailee as well.
4. Classification on the basis of primary and incidental rights.
Primary rights are associated with the property itself, while incidental rights are those that may be related to other property because of the primary rights. These incidental rights give rights to easement like the right of passage (haqq al-murur), the right to flow of the water (haqq al-majra), the right to water (haqq al-shurb), right to discharge rain water to another’s land (haqq al-masil). These rights correspond to easements in English law. An easement is to be enjoyed as in the past and cannot be enlarged or altered. It is loss by disuse.
Another right is known as rights of a neighbour (haqq al-jiwar). This right may also lead to the right of Pre-emption. The Punjab Pre-Emption Act 1991 defines right of pre-emption as a right to acquire by purchase an immovable property in preference to other persons by reason of such right.
The term pre-emption is usually used for the translation of haqq shuff’ah, it means the acquiring a vendor’s property for the price for which the vendor has sold it. The right of pre-emption comes into operation only when the vendor has actually sold the property for until the contract of sale has been entered into the matter resting solely upon his intention cannot be said to be free from uncertainty.
III. RIGHTS OF OWNERSHIP
One of the most pivotal and crucial issues is that of ownership of various elements of production. A hot debate is going on among scholars of the age and it is perplexing to pen down that no conclusive result has been achieved yet. There remains a gulf of difference on this theme.
a. True and Absolute Ownership
Some are of the view that actual ownership rests with Allah, being the Creator and the man holds property as a trust for that he is accountable. Acquisition and disposal of property are recognized on certain conditions laid down by Shariah. Absolute ownership of individuals is not according to tenets of Islam, because it belongs to God solely.
A few writers assert that Real Owner has given proprietary rights to the whole society and they are against individual’s rights of ownership, as has been depicted by Abdul Qadir Udah in this passage: “The society through its functionaries such as rules and councilors has authority to organize ways and means of utilizing wealth. All wealth belongs to Allah, but Allah has made it fr good society. The rule in Islam is that all rights belonging to Allah are for good of society which sits in authority over them and not individuals. The society can abrogate individual ownership of benefits of property subject to condition that suitable compensation is paid to owner of benefits involved. Though Islam allows ownership with limits, it authorizes society, as entity for enduring rights of God and for organizing utilization of wealth, to subject individual ownership of particular kinds of property to limits, when necessitated by public good. This may apply to ceilings on agricultural holdings or to urban property.
Sayyed Qutb and Maulana Maudoodi hold somewhat different opinions, however they declare that rights of ownership are allowed. But their emphasis is on ensuring of basic needs of every individual.
Abdul Hamid Abu Sulaiman describes in these words: “A strict equality in ownership of natural resources would require very frequent redistribution of those resources among members of society. This would be disruptive to economic activity and social relations. First alternative to avoid frequent redistribution and permit private ownership; second, to redistribute equally among members of society that part of income which is due to natural resources, thus achieving equality and justice.”
M.N Siddique remarks, “The individuals, state and society each have claim on property rights in view of the principle that Islamic state has jurisdiction over individual rights, being embodiment of God’s vicegerency on earth and representatives of people. This jurisdiction is however, functional, depending upon values and objectives cherished by Islam.”
b. Land Ownership
The claim for land nationalization is sought to be proved from these Qur’anic verses. Although there is no direct bearing to this matter, yet some writers put their contention on these passages.
“All that the heavens and earth contain belongs to Allah. Whether you reveal or conceal your thoughts, God will bring you to account of them. He has powers over all things. “ (2:284)
“Return to Our faith or We will banish you from Our land. We shall destroy wrongdoers and let you dwell in the land after them.” (14:13, 14)
“Unto Him belongs whatsoever is in the heavens and the earth and religion is His for ever. Will you then fear any other than Allah?” (16:52)
“For We shall inherit the earth and all who are thereon and they are returned unto Us.” (19:40).
“It is His, whatever the heavens and the earth comprise and all that lies between them and underneath the soil.” (20:6)
“He laid the earth for creatures, therein are fruits, blossom-bearing palm, husk covered grain and scented herbs.” (55:10-13)
The supporters of land nationalization argue on the basis of above mentioned verses and say that all land is owned by the ruler, being vicegerent of God and that individuals have no right of ownership. But they are not justified in it. According to God as He is the Creator of whole universe, even the very life of a Muslim is belonged by Allah. Hence, concept of land ownership is not refuted and moreover it is not confirmed that land is a national property.
The private ownership of land was a custom during and before the period of Prophet. The grants were made by the Prophet himself followed by four pious chalips. There are few reliable Traditions to this effect. Al-Quma bin Wail relates that his father said a piece of land was granted to him by the Prophet in Hadhramaut.
It is related by Abu Bakr’s daughter, Asma, that Prophet gave her husband, Zubair bin Awwam, a land piece in Khybar that had date-palm and other trees.
Urwah Bin Zubair narrates that the Prophet granted him one piece of land from groves of Bani Nadheer which had been made state land.
Umar bin Dinar is said to have related, “When the Prophet came to Medina, he granted some land to Abu Bakr and Umar, the Great.”
It is related by Abu Rafia that Prophet had granted a tract of land to some of his relatives but could not develop or cultivate it and during Hadhrat Umar’s reign, they sold it for 8 thousands dinars. He grant of this form of lands was called Iqta, being inheritable and this was common practice in Arabia.
It is established fact that Islam is not against proprietary rights of land. However, it disfavours the bad form of feudalism and landlordism, because there arises exploitation and centralization of land in few hands and then unequal of wealth which is followed by oppression and corruption, ending with disruption and destruction of a nation.
Numerous verses in the Qur’an give a clear indication that everything is owned by Allah (God) and that property in the absolute sense belongs to Him, and to Him alone. However, the right of ownership vests in God alone does not mean that we as human beings do not have the right to own property, it simply puts this individual right of ownership within a broader context. Ownership is basically our responsibility as trustees of God on earth. It is clear in the Quran that there is no objection on the individual right of property. For instance, God tells the Prophet:
“Take from their property charity”. (A-Tawbah 9:104).
In this verse, God uses the term ‘their property’, showing that there is no contradiction between God’s ultimate ownership to the universe and our right as humans to own within the restrictions that God has provided.
One of the restrictions on property in Islamic law is the legitimate acquisition of property, as the sanctity and right to defend property has to be recognized. Another restriction is not to allow your use of your property to cause harm or problem against other people.The Prophet PBUH once said;
“One should not harm himself or others” (Narrated by Muslim).
This requires considering other’s benefit while using your property. For example, monopolizing people’s basic necessities is restricted in Islamic law.
1. Mehr Muhammad Nawaz Khan, Prof.; ISLAMIC AND OTHER ECONOMIC SYSTEMS, Islamic Book Service, Lahore, 1989.
2. LECTURES ON ISLAMIC ECONOMICS; Islamic Concept of Ownership and Its Economic Implications, by Mohammed Ahmed Sakr, Islamic Research and Training Institute Islamic Deveploment Bank Jeddah, Saudi Arabia.
3. Imran Ahsan Khan Nyazee, ISLAMIC JURISPRUDENCE; Property and Ownership, Center for Islamic Law & Legal Heritage
4. Dr. V.D. Mahajan, JURISPRUDENCE AND LEGAL THEORY, Mansoor Book House, Lahore.
5. Prof. Dr. Noor Mohammad Ghifari; SOCIAL SECURITY IN ISLAM, Atiq Publishing House, Lahore
6. Charles Hamilton; THE HIDAYAH; Mussulman Laws, vol. viii, Premier Book House, Lahore, 1982
7. M.A. Malik; THE PUNJAB PRE-EMPTION ACT 1991, PLD Publisher, Lahore, 1995
8. M.A, Abdul Rahim; THE PRINCIPLE OF MUHAMMADAN JURISPRUDENCE; Ownership.