Land Law and Islam (English Language Version)

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About this Book

In this pioneering work Siraj Sait and Hilary Lim

property and land rights, drawing on a range of soc

sical and contemporary resources. They address th

Islamic theories of property and Islamic land tenurwebs of tenure prevalent in Muslim societies. T

possibility of using Islamic legal and human right

development of inclusive, pro-poor approaches to

also focus on Muslim womens rights to property

systems. Engaging with institutions such as the Isl

(waqf) and principles of Islamic microfinance, they te

of authentic Islamic proposals. Located in human

Islamic debates, this study offers a well researched

appraisal of property and land rights in the Muslim w


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About the Authors

Siraj Sait is a graduate of the University of Madras

and the Harvard Law School and is Senior Lecturer

Law at the University of East London. His expertise l

human rights and development, immigration and aIslam and the Middle East. He has held several key

India including Supreme Court appointed Commis

Labour, Legal Advisor to the Government of Tami

Prosecutor on Civil Rights. He has been a co

UNHCR, UNICEF and UN-HABITAT. He has be

ated with several NGOs, as a consultant for Minori

and as a trustee of the Commonwealth Human Rig

is currently Legal Officer, Land and Tenure Section

UN-HABITAT.

Hil Li i P i i l L t i L t th U


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Siraj Sait and Hilary Li

Land, Lawand Islam

Property and Human Rights

in the Muslim World


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Land, Law and Islam: Property and Human Rights in the Mu

was first published in 2006

by Zed Books Ltd, 7 Cynthia Street, London N1 9JF,

Room 400, 175 Fifth Avenue, New York, NY 10010

www.zedbooks.co.uk

Copyright Siraj Sait and Hilary Lim, 2006

The right of Siraj Sait and Hilary Lim to be identified as t

of this work has been asserted by them in accordance

the Copyright, Designs and Patents Act, 1988

The moral rights of the authors have been asserte

Cover designed by Andrew Corbett

Set in 10/12.6 pt Bembo by Long House, Cumbria

Printed and bound in Malta

by Gutenberg Press Ltd

Distributed in the USA exclusively by Palgrave Macmillan,

St Martins Press, LLC, 175 Fifth Avenue, New York, N

All rights reserved

No part of this publication may be reproduced, stored in a retrieval s

in any form or by any means, electronic or otherw

without the prior permission of the publisher.

A catalogue record for this book

is available from the British Library

US Cataloging-in-Publication Data

is available from the Library of Congress

Paperback ISBN-10: 1 84277 813 7

Paperback ISBN 13: 978 1 84277 813 5


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Abbreviations

Acknowledgements

Foreword by Anna K. Tibaijuka, UN Under-Secretary-Ge

Executive-Director of UN

1 Researching Islam, Land and Property

2 Islamic Law, Land and Methodologies

3 Islamic Land Tenures and Reform

4 Islamic Human Rights and Land

5 Inheritance Laws and Systems

6 Muslim Women and Property

Contents


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Abbreviations

AFDISN Awqaf Fund for the Disabled and Individual

BIS Bank of International Settlements

CAMEL capital adequacy, asset quality, management,

CEDAW Convention on the Elimination of All Form

against Women

CERD Convention on the Elimination of all FormsDiscrimination

CGAP Consultative Group to Assist the Poor

CMW International Convention on the Protection

Migrant Workers

CRC Convention on the Rights of the Child

CSR Convention relating to the Status of Refuge

D8 Group of 8 developing countries

DfID Department for International Development

ESCWA Economic and Social Commission for Weste

FIG Fdration Internationale des Geomtres (In

F d ti )


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MFI microfinance institution

MNA Middle East and North Africa Programme

NAFSA National Awqaf Foundation of South AfricaNAIT North American Islamic Trust

OECD Organization for Economic Cooperation an

OHCHR Office of the High Commissioner on Hum

OIC Organization of Islamic Conference

OICC Organization of Islamic Capitals and Cities

UDHR Universal Declaration of Human RightsUIDHR Universal Islamic Declaration on Human R

UN United Nations

UNCHS United Nations Commission on Human Se

UNDP United Nations Development Programme

UN-HABITAT United Nations Human Settlements Progra

UNHCR United Nations High Commissioner for Re

UNRWA United Nations Relief and Works Agency (

in the Near East)

WLUML Women Living Under Muslim Laws

Abbreviations


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This research would not have been possible but for the

efforts of Dr Clarissa Augustinus, the Chief of the Land

Shelter Branch, UN-HABITAT. Not only did Clarissa c

but she also stayed involved at every stage of the research

erous inputs and meticulous feedback.* Ideas and inspir

flowed from various quarters, with special mention owHome and Dr Lynn Welchman. Numerous UN-HAB

Farouk Tebbal, Roman Rollnick, Tom Osanjo, Lucia

Sioufi, Ulrik Westman and Florian Bruyas provided suppo

research and publication was made possible through

HABITATs Global Campaign for Secure Tenure from

Belgium, Italy, the Netherlands, Sweden and Norway.**

Fiona Fairweather, Head of the Law School, Unive

provided leadership, institutional support and encourage

project. Further, Fiona went out of her way to create a

needed for this research. The authors also benefited a gre

l d t f th L S h l h l d D

Acknowledgemen


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East London and in different parts of the United Kingdom

ated the materials that matched often insatiable and

demands. But it is Anna Hardman and Susannah Trefgarnenthusiastic backing and guidance for this project finally t

Lastly, we would both like to thank our families o

Lim Soo Chneah and Asma Sait, our inspiring dads Berna

Mohamed Sait and our activist kids Adil, 9 and Nilofe

patience and understanding this work would never ha

special mention should be made of Aladin, who was bornof this book.

This book is dedicated to the memories of two amazin

Pat Robinson and Najma Bai who would truly appreci

endeavour.

Acknowledgements


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As part of its global mandate, UN-HABITAT is actively i

access to land and protecting security of tenure. Whi

housing rights are generally cross-cultural and asserted

economic and political system, it is recognized that pr

regulation and protection may take different forms. A

different systems and approaches, UN-HABITAT commland strategies in the Muslim world, which accounts for

the global population.

UN-HABITAT has a rich and fruitful experience of

with significant Muslim populations. In the course of

ranging from Afghanistan to Indonesia and from Ira

HABITAT has been increasingly aware of the impor

tenure systems and land rights. This pioneering study

understanding of the distinctive land, housing and prope

in that part of the world. I am pleased that, far from bein

exercise, this study has been recognized by several

i I l i i tit ti th Al A h

Foreword


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The concept of dual ownership [human beingGod] is one

the Islamic doctrine of economics. Islam protects and endo

own what one may freely gain, through legitimate mean

Yet, human ownership is tempered by the understanding th

analysis, belongs to God. What appears to be ownersh

trusteeship, whereby we have temporary authority to h

property. (Abdul-Rauf 1984: 19)

Land, property and housing rights are generally cross

within every socio-economic and political system, but

their regulation and protection may take many forms. Ho

little research on the complex and distinctive forms of

rights found in Muslim societies, despite the fact that ovworlds population is Muslim. Although there has bee

generally on Islam and human rights, there has been ver

and property rights. This book seeks to address this gap

often global reviews of land tenure and strategies fail

1Researching Islam

Land and Proper


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Land, Law and Islam

automatically applicable in the Muslim world. Though

study list, he merely explores its symptomatic problems, p

cratic delays in asserting property rights. The issues facedhowever, are far more complex than problems with red ta

Islam is considered by Muslims to be a complete way

conceptions go far beyond theorization to impact on th

Muslims. They also inform, to varying degrees, state po

discourse. Better understanding of, and engagement with,

land may potentially support land rights initiatives in Mhave implications for programmes relating to land admi

tration, urban planning and environmental sustainability.

be made about the extent to which Islamic dimension

appropriate to a particular context that is for land profes

civil society and ultimately the people to determine. The

land discourse is exaggerated because Islam, as this rese

never a stand-alone and there is a dynamic interplay

human rights, customary, informal and Islamic concept

cations. Rather, the lack of engagement with the internal

creating land systems that are bereft of authenticity and l

of effectiveness and durability. Even where well-inten

efforts to establish modern land systems succeed, the

norms, practices and processes leads to unattended dualism

prospect of integrated and unifying land policies.

This chapter provides an introduction to the conte

scheme of this research, to distinctive conceptions of lan

Islamic theory, as well as to key economic principles prom

ship and their present and potential role in promoting ac

more, it outlines the application of Islamic perspectivesurban planning and environmental sustainability.

Scope of the Research


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The general findings of the research point to distincti

of land and property rights that vary in practice through

Though Islamic law and human rights are often importanconceptualization of land and property rights, and t

intersect with state, customary and international norms in

so, they potentially offer opportunities for the devel

Islamic land tools which can support the campaign for

land rights for various sections of Muslim societies, includ

in order to facilitate that role, the various stakeholdereview the normative and methodological Islamic f

relationship with other systems of formal and informal lan

This chapter will show that Islamic property and land

mature and developing alternative land framework ope

national regimes. The roles of Islam, history, politics, cultu

operating in different dimensions within Muslim societ

distinctive property conceptions and structures. In the

property rights are promoted but the ultimate ownershi

assumed and requires all rights to be exercised within

ethical framework with a redistributive ethos. It is argued

Islamic dimensions of land may potentially support la

Muslim societies and has implications for programmes re

tration, land registration, urban planning and environmenChapter 2 considers Islamic law in relation to land rig

in Muslim societies. A striking feature of Islamic societie

reliance on legal cultures, arising in part because of

breathtaking scope of the Sharia. Though it is a sit

conservatives and liberals, Islamic law is not medieval a

field. An appreciation of the distinctive features and soumethodologies and diversity in application and its dispute

may contribute towards strategies aimed at enhancing secu

Chapter 3 explores how the multifaceted, generally d

varied nature of land tenure concepts categorizations an

Researching Islam, Land and Prope


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Land, Law and Islam

Chapter 5 explores the nature and scope of womens

land under Islamic law (Sharia) through a socio-hist

womens property rights, an appraisal of modern legal reffor enhancing their security of tenure. It argues that, desp

contrary, there are potentially empowering strategies for w

law that can enhance womens access to land and enfor

property rights.

Chapter 6 considers how Muslim societies generally

sources their inheritance rules for the division of an indivdeath, some of which are controversial. Yet, it argues t

these formal inheritance rules pertaining to designated s

stood in a broader socio-cultural and economic conte

systems of inheritance practice.

Chapter 7 outlines the waqf as a key Islamic instituti

porated within its legal sphere vast areas of land withi

connected firmly with the religious precept of charity

several Muslim countries have abolished or nationalized r

or subjected them to strict regulation, but the waqfremain

are clear signs of its reinvigoration. The chapter evaluates

strategies to improve security of tenure based on its lega

and socio-economic impacts.

Finally, Chapter 8 considers the increasing demandcommunities that financial services be compliant with the

explores the Islamic context which stimulates such alterna

key distinguishing features of Islamic banking models,

Islamic microfinance practices, and the practical challenge

It considers how Islamic finance, banking principles an

housing microfinance, can contribute to security of tenurethe lives of the poor.

This is a preliminary study which seeks to contribute

appropriate strategies to realize innovative and pro-poo

particular context With that in mind it has been written


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significant minorities in the West and from China to

estimated 1.2 billion Muslims amongst the worlds popula

see themselves as a universal community (Umma), they aseveral nationalities and, contrary to popular assumption

Muslims reside in the Arab world. They include many

and speak dozens of languages, including Arabic, Turki

The lived experiences of Muslims reflecting various

ditions, political affiliations and religious practices can

simplified. The Muslim holy book, the Quran, celebratesO mankind! Truly We have created you out of a male an

made you into nations and tribes, that you may know one

And among His signs is the creation of the heavens and the

of your languages and colours. Verily in that are signs for m

(Quran 30: 22)

Callaway notes, in the context of Africa, that in eachcountry, the impact of Islam is different. No study can

region with one set of generalizations about how Islam

and shapes it (Callaway 1994: 1). Given the enormous ran

intertwined with indigenous and Western practices, a

which uses thematic approaches, can only provide selectiv

a comparative mode. It cannot generalize or universalizehomogeneous Muslim position. Rather, the research un

able variations in the doctrine and practice of land tenur

by local socio-economic, customary, cultural and politic

secular influences. The prefix Islamic has been pref

conceptual formulations or attempts at authenticity b

mostly theorized from the Quranic and other Islamicequally true, though, that Islam is a contested zone and i

human interpretation of divine intent. There are di

Muslim Sunni and Shia sects, as well as within the mad

prudence) within the sects. However, this project avo



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Land, Law and Islam

Christian messengers including Adam, Abraham, Moses

upon them). This first pillar of Islamic faith is accompanie

(prayer) which is performed five times a day, zakat (ccation), fasting during the Islamic month of Ramadhan an

to Makkah), although the last is only an obligation for th

and financially able to perform it. As Esposito (1980

distinctive feature of the Islamic tradition is the belief

comprehensive way of life; it is integral to all areas of

economics, law, education and the family. It is not surpIslam has much to say about various aspects of land, prope

and regulates property relationships within the fami

between individuals and the state.

This book is co-authored by a Muslim and a non-M

female, a Southerner and a Northerner coming from diffe

and experiences. Together, the team has sought to be

pursuing internal and external critiques and debates. Thro

of research, they have adopted a general approach that Isla

and cultures, must be constructively analysed to discern i

seen by Muslims as well as other communities. This resea

cross-cultural human rights and development standards

engaging with Islamic principles. A range of materials

Muslim and non-Muslim sources, though largely restricteresources and translations. However, the researchers h

arguments over orientalism (Said 1978; Tibawi 1964; Ma

generate essentializing statements about the Orient, amo

of power. Postcolonial approaches to and critiques of Wes

incorporated along with caution over occidentalist tr

reactive to orientalism (Buruma and Margalit 2004). As and foreign affairs experts agree that Islams teachings a

Westerners have considered radical Islam one of the gra

free world (Smith 2000). At the root of this constru

predisposition to see land property and housing rights


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Journal points to why a comprehensive review of lan

achieve (Feulner et al. 2005). The Index, with its fre

recognizes property rights as one of the ten broadguaranteeing economic freedoms. Other factors inclu

burden of government, government intervention in th

policy, capital flows and foreign investment, banking a

prices, regulation and informal market activity (Feulner et

primarily concerned with the extent to which private pro

the state and protected from expropriation. To assess tpractice, the rule of law and the independence of the ju

corruption and the ability of individuals and businesses to

Index, thus, takes a particular view of property rights and

issues of broader access to land or security of tenure nor

informal or collective forms of land ownership (Feulner e

The Index of 2005 covers 161 countries, including a la

ones. Egypt, Qatar, Oman, Saudi Arabia, Tunisia, Turke

Emirates are assessed at Level 3 property protection. Thi

a moderate court system, inefficient and subject to dela

present; judiciary may be influenced by other branches

priation possible but rare. Pakistan, Indonesia, Kuwa

Morocco and Yemen are found to have low property o

tected; court system inefficient; corruption present; juother branches of government; expropriation possible (L

are ranked at the bottom of the table at Level 5 with ver

outlawed or not protected; almost all property belongs t

such chaos (for example, because of ongoing war) that

non-existent; judiciary so corrupt that property is not

expropriation frequent. No Muslim country figures in th2) where protection of property is very high or high

uncorrupt judiciary enforces those rights (Feulner et al.

composed in the main of Western countries.

These tables problematic as they may be in their sta



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Land, Law and Islam

principles do exist as a coherent, sophisticated body of ru

what are their implications and relevance to contempora

Islam may well be considered irrelevant or problematic often it cannot be ignored. As a holistic, authentic and wo

invigorate the search for universal property rights in se

Muslim world.

Theorizing Islam, Land and PropWe have said that the Islamic property rights framework

sacred trust but promotes individual ownership with a

However, at the outset it should be emphasized that Isla

only factor in Muslim societies and often coexists with c

other influences. The impact of Islamic land theories is be

an analysis of particular national and local histories,

principles and the interplay of customary and cultural pra

The present structures may reflect choices at the societal l

down, state-dominated approach. The land rights paradig

circumscribed not only by external human rights and d

promoting a just and equitable society, but equally by int

religious and moral dimensions of land may be internalinto property transactions of many societies in multipl

explores how Islam potentially impacts on all stages of the

acquisition to management and transmission. In this chapt

impacting on contemporary land discourse are identifie

history particularly Ottoman history family, kinship and

these factors will help to clarify the potential and limits of aland rights.

In investigating the various factors impacting on t

practice of Islamic land theories, the role of the Muslim

implementing Islamic and internationally guaranteed lan


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That same framework is capable of responding also to m

and environmental challenges, although the nature of

could not have been envisaged in the classical Islamic peIslamic land principles and practices run parallel or are si

international standards; in other ways they offer an

However, Islamic land concepts and models in all the

support the quest for security of tenure and offer a sophi

land framework vis--vis international regimes.

Rights to land are part of a broader set of property r(landed) property interests and personal property, the latt

as tangible and intangible property (stocks, intellectual

include not only the right to use land but also benefits

usufruct or rent. Generally, they imply the right to ex

philosophers, sociologists, anthropologists and economi

spectives on the nature and scope of property rights, but t

understood to be a bundle of rights that includes the a

control, use, management, transfer and sale of property (

the widespread assumption that property rights o

philosophical and socio-political thought, they are eviden

(Abd Al-Kader 1959). Property governs relations not

things but, equally, relations between persons with respec

1981; Munzer 1990). As such, human relationships are a as distinct from matters relating to ibadat (worship). Prop

also of a larger scheme, as Harris notes (1996: 3), gove

things and the allocation of some items of social wealth

those things and services for which there is a greater pote

there is a supply. While property rights are media

maximize wealth, they are often subject to transactionresources) and the vagaries of individual power and lever

allocated in different ways, through the private use

communities or governmental actions.

The nature and scope of property rights have long



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Land, Law and Islam

rights, are ordered in more absolute terms within a

governing how man discharges his duties towards God

human beings (Weeramantry 1988: 11617). This is simapproaches that consider property as Gods bounty and

accountable for its use.

There are scores of references to land in the Qura

provide for and respect property rights (Quran 2: 205, 2

10, 4: 29, 16: 71, 38: 24, 59: 8). Private property rights a

constructed as a sacred trust based on tawhid(doctrine of uship) and amana (trust). Property and land vest in God

enjoyed by men and women through responsibility or trust

see Moors 1995). According to a literal religious philosop

allowed to use resources such as land but can never own

extensively from the Quran and Sunna (tradition of the

that there is a concept of dual ownership (humanGod) u

(1984: 19). The existence of rights to own (raqaba or full

alienate land is not in the main contested but these righ

their legitimacy as derived from Islamic principles.

Some argue that Islamic conceptions of property ri

private ownership with limits arising out of ethical an

siderations, are amenable to socialist dogma (Mannan 1

Behdad (1989: 185) view Islamic property rights as largecapitalist economy. Since the 1973 oil boom in the Midd

talk of Islam and capitalism in contrast to the weakeni

socialism (Cummings 1980: 25). At the same time, the

revolution and resurgence of Islamic economics from Su

intensified the debate over the true potential of stand-alon

There is a growing literature on Islamic economic p(Chapra 1970; Khan 1994), although at this stage in c

cohabitation of Islam with principles according with a cap

more in evidence (Pryor 1985).

What are the implications of a distinctive tradition in I


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societies. Kuran (1977: 37) argues that the significanc

economics an Islamic character lies only partially in th

Much of their importance lies in their symbolism, in distribution of political power and their cultural mean

Islamic economics are a pragmatic strategy or a utopi

principles, particularly regarding property rights, can be u

to land.

Despite similarities with Western liberal conceptio

Islamic rights to legitimate use of property have much [those] enjoyed in the narrowly material accounting of c

15). Writing on the Islamic approach to development, Is

radical difference between the vision of a good and

worldview of Islam and that of the capitalist or the sociali

that in the former it consists of fulfilling ones covenant w

out the worldly life in terms of divine guidance as p

beautiful life awaiting mankind (quoted in Esposito 19

basic aims of Islam is to create an egalitarian society wh

obtain his/her basic rights and enjoyment from life, an

includes several economic regulations some moral and

Islamic property conceptions and arrangements have

implications for individual ownership, access to land and

argument which will be returned to in succeeding charespect to the potential for Islamic credit and microfinance

about the distinctive Islamic charitable endowment or wa

Islamic Concepts of Land Tenure and Ac

In theory capitalist private property rights are largely unf

rights in Islam are circumscribed. Rights in land depend

emphasizing that land is a sacred trust for human beings

continuous productive use However excessive exploit



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Land, Law and Islam

property includes forests, pastures, rivers and mines and ev

sea. However, like mewat (dead land) which can be conv

by reclamation, fish caught from the sea and trees felled fopublic to private. With regard to public land, the state ex

ensure that no exploitation of it occurs contrary to pu

(1999) points out that one of the features of the Islamic p

public and state land can be converted to private ownersh

the states determination of public interest, just as unused

revert back to the state. Thus, land ownership in Islam Behdad (1989) points out that while private property righ

an individual who uses the land will have priority of acc

over another who has failed to use it. Unworked land c

according to theorists cannot be rented (Behdad 1989);

land can be rented at all was itself a matter of Islamic deba

now widely accepted (Johansen 1988). This debate ar

(saying of the Prophet): He who has land should cultiva

cannot, he should give it free to a Muslim brother and not

That unproductive land should not create wealth is

known Islamic prohibition on riba (interest), which stip

itself should not create money. There are those such as B

the injunction against hoarding and the emphasis u

fundamental to secure tenure to be both unwelcome and the ethical and moral dimensions of Islamic property doc

Islamic legal principles prohibiting unreasonable prof

through usury or riba and hoarding, are part of a broa

important rights, including respect for property rights of a

religious faith (Quran 3: 75). Minority rights have been p

some commentaries regarding the application of Islamic lenjoy the same property rights as Muslims, although, as

more detail later in this chapter, the tax structure varies

Quran also has rules ranging from the guardianship of th

and warnings against its misuse (2: 2 2: 5 and 4: 10) to th


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converted by the state into matruk mahmiyya (property

such as roads) or into matruk murfaqa (property for

community such as marketplaces and cemeteries). Landdesignated as owned by God, putting the brakes on priv

over it. It is a form of land tenure with a significant role

land for a wide range of beneficiaries and a later chapter

and Islamic philanthropy. However, it is worth noting ev

waqf and theories relating to the Islamic doctrine of

emption) were viewed within the colonial perspectiv

backwardness of Sharia law in terms of limiting ind

opposed to key elements in a creative and flexible arrange

Security of Tenure

Security of tenure is an aspiration, if not a legal expecta

including Muslim societies. It implies that the right o

land/property is underwritten by a known set of rules

capable of enforcement. Tenure can be realized in a vari

on constitutional and legal systems, social norms, cultur

extent, individual preference. Islamic law provides such

recognition and protection of private property rights, redeprived of their property rights and prescribed punishm

other branches of Islamic law and practice, every prope

characterized through the Islamic value system as waji

(recommended), mubah (permissible), haram (prohibited)

(Hallaq 1997: 40). Protection of property rights is well es

(Abd Al-Kader 1959). The Prophet emphasized the imrights in his farewell pilgrimage by declaring to the assem

shall be legitimate to a Muslim which belongs to a fellow

given freely and willingly. Kadivar (2003) argues that pr

within the private domain in Islam and are therefore r



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Land, Law and Islam

To exercise political leadership, the ruler, together with h

restraining laws among the people, in order to prevent mu

upon property. Attacks on peoples property remove the igain property. People then become of the opinion that th

destiny of (acquiring property) is to have it taken away f

infringe upon property (rights) commit an injustice. (Al-Arak

Such is the importance attached to property rights, that t

falls within the crimes which are punishable by a pre-esta

ment (Hadd) found in the Quran 5: 41.

Islamic Land and Land Reform

Islamic theoretical insistence that ownership of everything

(Quran 2: 108; 3: 190) signifies that ownership is sub

redistributive principles. The divine ownership is coQuranic references to the effect that all of humanity b

resources. The Muslim state, as the repository and means

Gods laws and objectives, came to acquire and exercise

swathes of land out of which a range of land tenure arran

Further, the interactions between Islamic and customary a

their own dimensions to this diverse body of land rightsrespect to communal conceptions of property. However,

does not merely shape diversity in landholdings, but

elements.

The central role given to the Muslim state, in which

vested on behalf of God, lends itself to the deployment o

Islamic principles in order to legitimate land reform progrnotes that the concept of miri was much broader than W

state or crown land since the raqaba (nominal ownership)

possession and extensive rights of usufruct are vested in t

further elaborates:


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should belong to man, the capital to God (Bonne 1960:

Islam obligates Muslims to pay zakat (a charitable lev

pillars of faith (Quran 9: 60). Islamic property rights tredistributive element, which is evident also in institution

Maamiry (1987: 59) notes that in Islam what is owed to

the state as well as the wealthy. It is not a grant or gift; it

long as this poor person is unable to earn or if the means

for him. This emerges from a number of Quranicverses,

It is righteousness to spend your wealth out of love fororphans, for the poor, for the travellers, for those who a

slaves. Be steadfast in prayer and establish regular charity.

A further instance of the redistributive elements in

arises with respect to the inheritance rules. These establi

mandatory beneficiaries albeit, as will be explained in C

tunities for estate planning by the benefactor. The fixerules, by guaranteeing access to property for a large numb

the break-up of large estates and land monopolies. Fu

provide possibilities of co-ownership (Warriner 1948: 6

commentators that Islamic law creates wasteful land

discussed in later chapters; it does, however, create

readjustment and co-ownership of holdings. In addconsiderable interplay between Islamic property conce

practices where communal or tribal land are a feature

(Warriner 1948: 18; Bonne 1960: 117). An example is m

lands, mostly relating to rural agricultural land whe

reallocating land in unequal shares (at regular intervals)

right of ownership attaches (Warriner 1948: 19). Simi

cropping), a contract under which one party works the la

party in consideration of a share of the crops, has bee

jurisprudence. Musha, however, has been on the decl

disapproval and the emergence of liberalized individual pr



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Land, Law and Islam

argumentation. For example, the question of whether a

tribution of land was Islamic was hotly contested by the

landed class in Pakistan.

Factors Influencing Islamic Land Do

Despite the general principles relating to property right

elaborate on land tenure on its regulation and adm

mechanics for its protection leaving it to succeeding g

the field. Property rights were widely asserted during t

(570632) given that he and many of his companio

businessmen. The right to property is promoted by a

Prophets Farewell Sermon (Khutbatul Wada, 632 AD), w

life and property of every Muslim as a sacred trust. Retur

to you to their rightful owners (see Haykal 1976: 4867)Prophet onwards, property rights were not only asserted

litigation (Hamza 2002: 2930). In the next period of Isl

four rightly guided Caliphs Abu Bakr, Umar, Uthm

consolidated those principles and developed land surveys,

booty and created equitable land tax structures. Though

be made about the later rule of the Ummayads (6611258), Ayyubids (11711250), Mamluks (12501

(15011722), or the Shia Fatimids (9691171), private la

understood to be promoted by Islam irrespective of some

processes (see, generally, Humphreys 1995).

It is the records and laws from the Ottoman (Uthma

that establish the highly developed land tenure regimes ansystem and vibrant land markets, as will be discussed furt

Islamic land tenure and land reform (see Inalclk 1969; I

Modern land regulation laws in most parts of the Sun

derived, at least in part, from categories of land in cla


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Land, Law and Islam

Even within communities, there are other important

and kinship that play an important role in determining th

of property rights. For instance, Muslim womens access argued in a later chapter, is best understood through the

family, kinship and the construction of property itself. C

tations of Islamic law and customary/traditional structures

bine to diminish or altogether extinguish womens rights

2003; Moors 1999). Vulnerable categories of people su

dwellers, minorities, migrants and children often have gre

ing land rights. Therefore, it is necessary to determine the

norms in order to distinguish them from other depr

patriarchal norms where applicable.

Land Administration and Good Gov

The link between good governance and an efficient

established. It has been the driver of international initiat

Nations Development Programme (UNDP), World Bank

tary Fund (IMF) and UN-HABITAT. With effective go

that business, government and citizens, acting as partners

economy, a better society and an effective polity. The UNment Goals stress the importance of governance as

environment conducive to development, drawing from th

civil and political human rights. Good governance imp

participatory, transparent and accountable socio-political an

and interaction/dialogue between state and non-state acto

Human Development Report 2004 concludes that the situgood governance in the Arab world ranges from deficient

Despite sporadic improvements in the human rights sit

countries, the overall human rights picture in the Arab w

deteriorating (UNDP 2004)

h l d d


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they emphasize that there is no Arab or Muslim mode

is neither a critical factor in determining the qualit

inherently incompatible with good governance (WorldGrant and Tessler 2002).

It should be acknowledged, however, that much of t

Islam revolves around the Islamic state as a utopian past o

concept of the Islamic state, and its limits in the postm

explored by several commentators (Ayubi 1995; Zubaida

orientation, Muslim governments routinely deploy Islami

political legitimacy and survival (Esposito 1987: 239). S

doubt about the influential quality of adland shura, the

consultation, which are embedded in Islamic consciousn

practice (Rosen 2000). This quality is evident not o

thought but equally in the works of Muslim revivalists

Abul Ala Mawdudi and Sayid Qutb.

Accountability, particularly against misuse of power athe temporal and religious sense, are repeatedly stressed i

such, these concepts and ideals are deeply entrenched in

and need to be employed more in land administration issu

who find Islam and democracy incompatible (Kedourie 1

scholarship arguing the opposite, although it is clear tha

models vary (Abed 1995; Al-Suwaidi 1995). Brumberg the past two decades the Middle East has witnessed a

authoritarianism but seems to be moving back towards it

that the mere existence of the opportunity to vote is not

democracies with built-in protections for citizens mu

record of Muslim states has generally been problematic in

governance, but, as Ahmad (2004) argues, often the stathas enjoyed a monopoly position and consequently un

control potential critics in the media or through the polls

A wide literature exists on the traditional and moder

(al-Ghannouchi 2000; Sajoo 2002) Traditional Muslim


L d L d I l


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Land, Law and Islam

peoples and adapt themselves to the demands of an eve

world economy (Sahliyeh 2000). This diminishing powe

by the media and Internet revolution has spurred civil soitself in assorted ways, one of which is through religio

organizations.

Islamic activism itself is often directed at efforts to prod

political and social synthesis which is both modern and tr

(Islamic) history and values and the desire to articu

identity (Esposito 1987: 152). Bowman and Green (19

context of urbanization, that

Islam can function as an important source of political mob

conditions in many of the regions cities lead to popular pol

is here that Islamic groups can mobilize urban dwell

governments inability to respond effectively to many of the

of massive urban growth. Such Islamic groups generally por

alternatives to prevailing political orders that do little for than to oppress them. Thus, the relationship between m

political protests may have as an intervening variable religio-

As Bowman and Green (1997) argue, Islamic groups have

role as relief providers: they give the example of aid follo

such as an earthquake which destroyed a part of Cairo

government itself failed to respond effectively. The exteand philanthropic organizations can respond more gen

adequate secure housing and infrastructure for the residen

the Muslim world is a matter that warrants further a

discussed further in Chapter 7 which focuses on waqfs and

Ottoman Land Administration

Ottoman land history offers an expansive case study of the

land principles in a specific context, lessons from which


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Land Law and Islam


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Land, Law and Islam

created for intermediaries and peasants. Third, the cadastre

tax collection indicate that Islamic principles do not

administration systems. Fourth, land settlement patterns wavailability of water and the nature of the irrigation system

state with regard to land was not static but diverse and ev

experience, a product of its times, went through several p

and decentralization. Finally, Ottoman land administrati

contemporary land registration systems, as discussed below

Islam and Land Cadastre, Registration a

One of the significant challenges for land administration

appropriate cadastral systems which can provide neces

clarify legal rights. The Cadastre 2014 initiative builds o

izations by seeking a modern integrated system giving a call legal conditions effective for a piece of land, includin

restrictions. However, as van der Molen (2003) argues,

differences exhibited by the cadastral arrangements in 30

either possess, or will possess in the near future, appropria

systems; but another 140160 countries will not be anyw

prepared. The joint 1999 United NationsFIG (InFederation) Bathurst Declaration on Land Administr

Development recognizes the multidimensional, evolving

cadastral work (Williamson and Grant 2002). It is notew

members of the working group of FIG Commission 7

Management) were representatives from Algeria, Egypt,

Turkey. Far from it being a Western concept, cadastre hatime of the Prophet Mohammed, when at his suggestion c

the city of Makkah were marked out with stones (El

Likewise, the fencing of mewat (dead land) properties to e

a common practice. For Muslim states in later historical

Researching Islam Land and Prope


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on the land, population and paid tax. In fact, a land re

Kanunname-i Kitabet-i Vilayet is available in the Ottoma

there were further books, providing more detail with resa particular province, such as boundary descriptions o

landholders were given certificates, land tenure and crop

1994).

Despite its ambitious scope, the registration was not co

Ottoman territories but the advantage of Ottoman ca

meant that Egypt, for example, has had comprehensive

since 1907, with the techniques of assembling them bec

accurate (Baer 1962: 71). In Palestine, the Israeli state

Ottoman land law as the framework to aid its nationaliza

(Kedar 2001). The power of the Ottoman legacy is illu

the Israeli land title registration office is still referred to a

title registration certificates as Tabu papers, a term which

Many Muslim countries that were colonized experiencedsimilar titling programmes. The FIG country reports on

as Jordan, Algeria and Morocco show considerable cadast

often with international support. Several other Muslim co

as well as countries with Muslim minorities such as the Ph

extensive support for land-titling projects, with mixe

countries attitudes towards cadastre or tiling vary, but ththat frustrates these attempts; indeed, the contrary is the c

Islamic Urban Planning

Rapid urbanization with its attendant problems is a serio

Eastern and other Muslim cities. Referring to the comrising population, poverty and politics in urban centres, B

in the Middle East Sustainable? (1997: 339). Echoing Sa

informal settlements (favelas) operating outside formal stru


Land Law and Islam


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Land, Law and Islam

non-governmental and non-profit organization, has been

It has 141 cities as active members in 54 OIC countries

continents of Asia, Africa, Europe and South America. Iton the achievement of its goals within the framework o

ment of human settlements. It publishes a biannual magazi

Cities, and through its seminars has produced several boo

the environment and urban planning.

Contemporary urban planning faces challenges, both in

limitations of resources perhaps not encountered by pre-

modern secularized principles of planning efficiency se

concepts of doubtful relevance. However, there is much

and history on which town planners and architects can d

have been largely urban: the city of Al-Medina, wh

community was formed and which was first developed

activities of the Prophets generation, is often cited as the

Much Western scholarship on Islamic urban space and shas been concerned with the mosque and the market as fo

with the Hellenic city prototype (von Grunebaum 1955

waqfplayed a significant role in the characterization of pub

Bonine 1987). Lapidus underscores the complexities of

noting how kinship, community ties (based on the un

umma or community) and religious consciousness deteevolution of Islamic cities (1973: 336). These studies are

in explaining the importance of privacy through courtyar

spaces through hammams (public baths). As Al-Asad (1

planners seeking to alleviate contemporary problems in

approach the city as an entity that fosters the preservation

creation of a sense of place [and] with sensitivity to psychoverall cultural issues.

Given Islamic architectural splendour, it is easy to ro

city of tree-lined broad roads, fountains, exotic bazaars

private spaces It has been argued that present-day archite



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Characteristics of traditional Islamic cities, themselves d

socio-cultural factors, have been modified over time p

modern period. Abu-Dayyeh (2006) argues that where hoods have survived the onslaught of modernization, the

of land succession have stimulated some development, a

uneven. Therefore, the renewed interest in Islamic pla

may not provide a wholesome alternative paradigm bu

attention. Traditional Islamic principles relating to land c

the challenges of urbanization, land conflicts or newer fo

as the difficulties in access to land and security of te

jurisprudential level matters for ijtihad(personal reasoning

a state following Islamic principles has considerable leew

land policy towards the benefit of the community thro

interest. In particular, the rights of landless poor, slum dw

could be addressed through this policy mechanism and

ijtihadand maslaha are addressed in the following chapter,part to discover how the processes of Islamic reasoning

enable the emergence of innovative land management to

relevant in approaches to contemporary environmental pr

Islam, Environment and WatLand management and use have to be integrated within a

environmental policy. The Quranicview holds that every

created for humankind. It was niamah (Gods bounty) to

be exercised with care as a trusteeship. Land is a part of t

ethical dimension of imaan (religious faith), living in a

Allah, striving in everything to maintain the harmony o

environments (Khalid 2002). Engelmann (2001) points ou

in the Quran urge believers to respect the environ

generational equity in the use of the natural resources of



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the fields of land administration, land registration, urban p

and environmental protection. Understanding the nature

rights in Islamic society could further secure tenure as theemerges from divine edict and the sayings and examples o

There is repeated Islamic emphasis on obligations r

fairness and poverty alleviation, which are influential in

tation. The concept of property rights in Islamic econom

beyond the material domain as it lays stress on responsibi

and redistribution. In the Islamic welfare state, the Baytu

has a specific mandate for support of the landless. In addit

are also comprised of zakatand other donations. The st

access to land for the landless poor. The formulation th

implies that land ownership and enjoyment must be jus

result, Islamic doctrines engage with entitlement to land r

of beneficiaries, including women, children, landless

ownership in Islam is predicated on productive use of lathe principle of ownership of mewat through reclamat

foundational Islamic principles relating to land and the ev

land tenure arrangements in many parts of the Muslim w

in Muslim societies does manifest itself in different ways.

basis upon which Islamic access to land through Islam

promoted, with a holistic, authentic, moral, ethical and leUnder Islamic theory, the state in land management

land ultimately belonging to God. Thus, the state is m

land, efficiently and fairly, in accordance with Gods law

principles. The Ottoman land administration narrative is

often disputed, but it demonstrates clearly that sys

registration and cadastre have a well-embedded history inpractical terms, there exist no ideal Islamic states, and M

adopt Islamic principles according to their particular int

has been argued that there is no distinctive Arab or M

nance but the concepts of shura and adl are nevertheless

g p

Land, Law and Islam


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between the theorization of Islamic property rights over l

those rights in Muslim societies which are the focus of

land tenure systems, Islamic human rights relating to laaccess to property, Islamic inheritance, the waqf and Isla

systematically addressing the distinctive features of the Isla

is intended to contribute to the quest for international l

before focusing upon these specific issues, it is important

Islamic legal cultures relating to land and property, inclu

methods of reasoning and interpretation. It will be argue

that probing Islamic legal doctrines and methodology ca

ment of inclusive land tools, raising important possibilities

maslaha or public interest within the domain of land admin

personal reasoning across a range of areas, including wome


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Islamic Law is the epitome of the Islamic spirit, the most ty

Islamic way of life, the kernel of Islam itself. For the majo

has always been and still is of much greater practical impo

Even today the law remains a decisive element in the strugg

in Islam between traditionalism and modernism under the

It is impossible to understand the present legal developmen

of the Middle East without a correct appreciation of the paof positive law, and of legal practice in Islam. (Khadduri and

Islamic law is a central feature of the lived experiences

Muslims across the world, whether or not their states of

law. Contrary to general assumptions, Islamic law is norather a man-made code whose primary source is the

subject to human interpretation of divine intent. In o

within an Islamic jurisprudential praxis, interpretation mu

authenticated methodology How one goes about int

2

Islamic Law, Lan

and Methodologi

Land, Law and Islam


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Recognition of the potency of Islamic legal thought p

way for active and constructive engagement with the inte

ern perspectives of Islamic law tend to be limited, partia

gulf of cross-cultural misunderstanding that allows myths

develop and leaves the field clear for extremist and obs

Islamic law. An appreciation of the distinctive features a

law, its diversity in application in relation to property a

dispute resolution mechanisms can contribute towards str

lopment goals and security of tenure. While there are d

legal opinions alongside egalitarian foundational principles

opportunities for interpretation strategies within Islamic

access to land and security of tenure. This chapter aim

opportunities.

The role of law in land policy will be considered, both

with respect particularly to Muslim societies, as well

Islamic law in Muslim consciousness. The sources of Islamand property rights will be outlined and the pluralism i

lation of Islamic legal theories and their practice will be e

will be an examination of the role of various legal institu

Islamic law. It will be demonstrated that delving into th

argumentation has its advantages, not least in that it offers

securing rights in, and access to, land. As argued in the prelaws relating to property and land rights have to be assess

Islamic legal systems, since there is considerable overlap an

different Islamic legal doctrines. Decoding the sources, str

frameworks of Islamic law enables those working withi

explore innovative, proactive and inclusive land tools

within Islamic law. This is particularly relevant for strategiaccess to land and security of tenure.

Role of Law in Land Policy

Islamic Law, Land and Methodolog


44/256

There appears to be a general consensus among inte

local actors that land laws potentially provide the fra

equitable, fair and clearer relationships with respect to lan

societies and states. Yet law as an instrument of power is

be manipulated to disempower particular groups or typ

often claimed, some people use the law, some people

them. Therefore questions of the legitimacy, fairness, e

of law continue to permeate the debate over the role o

Rather than a constant predictable model, law can be

objectives from social engineering and empowerment to

oppression, and is capable of multiple, even unintended ef

The relationship between law and property is conten

Bentham wrote: Property and Law are born together an

laws were made there was no property; take away the law

(1931: 113). Philosophical and jurisprudential debates ove

of property law have often been central to understanding as well as the connotations of property rights in society. L

lawyers, however, but also by commentators and con

spectrum of society for whom law has different mean

Some feminists, for example, argue that patriarchal assum

content of property laws (Scott-Hunt and Lim 2001),

Critical Legal Studies movement emphasize the influencethe content of the law (Kennedy 1994). Proponents of th

school argue that areas such as property law bear th

reasoning (Posner 1992: 23). Land law at a formal l

legislation, rules, policies, judicial reasoning and impleme

often incorporates informal or extra-legal norms and pra

Property rights amount to a socio-economic institutiships that is much broader than property law, the

discursive location for property rights. Land rights are co

of property rights since the latter often subsume property

all land rights are justiciable and often the cost of transact

Land, Law and Islam


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Throughout the world there are variations in how

established: the types of property rights recognized; the

types of use and users; and the enforcement mechanisms. T

of law throughout the world exhibit plurality, even

dominant systems: the common law (as in British and US

in the French). Though there is increasing interchange

globally, each legal tradition or system emerges, among

own particular historical evolution. The mere existence o

mechanisms are not enough; such laws must have legitim

and acceptable to the people to whom they apply (Freem

include not only state-created norms but a spectrum of

religious laws. The ideas of law in Islamic legal contexts

normative outlines, structure and methodology, but a t

relating to land and property rights is not offered here,

further below. Instead a framework is set out within whi

explored. It is difficult from a non-Islamic perspective claims of rival and incompatible accounts of justice comp

and political allegiance (MacIntyre 1988). However, as Co

In the coming new world order of nationalist struggles an

socio-legal scholars may not be able to remain silent, fo

connections between Western and Islamic legal systems,

media stereotypes of Islamic law as regressive and feudal activists as religious fanatics.

Relevance of Islamic Law in the Musli

Muslim countries do not present a simple dichotomy of laws. Islamic legal principles generally coexist and overlap

tions of race, gender, family, kinship and the umma throug

well as state secular laws. On one hand, there is no such

law it manifests itself in a variety of ways owing to c



46/256

be in accordance with Islamic law (Rodinson 1973). Th

conceptions of ownership and use, as discussed in the

accompanied by the frequent reminder that land use m

norms of the Sharia.

Property and land rights are evident in the Muslim wo

writing on Islamic law dimensions of the subject is a diffic

no unified field of legal doctrines relating to proper

systematic development of Islamic norms corresponding

security of tenure, though there are raw materials. T

dedicated discipline of Islamic land law but rather a setor domains which practitioners will recognize as such. T

housing rights, another area where Islamic principles shou

full-bodied field of law but where there is limited litera

relating to property and land operates in reality and practi

law, is also an under-researched area. There is sufficien

example, family courts or criminal courts function, yet thIslamic dispute resolution mechanisms with relation to lan

Land rights in Islam do not exist in isolation, therefo

stood with reference to other parts of Islamic law. Islamic

regimes are themselves derived from a range of overlappin

family, public, finance, taxation and commercial law

specific rights or secularized rights relating to land and pworld are often contingent on being authenticated thro

Schacht, the leading orientalist scholar, explained it th

epitome of Islamic thought, the most typical manifestation

life, the core and kernel of Islam itself (1964: 1). Property

be exercised in accordance with foundational concepts in

Sharia: human rights are subject to compatibility with t

shares are fixed by the Sharia; land tenure systems are inf

womens access to property has to be understood with

microfinance products have to be Sharia-compliant; and

of Sharia law principles The scope of the Sharia as w


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b l b i di b h



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but also because interpreters may disagree about th

foundational principles. For example, Islamic law does n

the ethical dimension of the divine revelation (Rahman 1

basic Islamic concepts or golden threads that embody t

They include: haqq (concepts of rights), adl(justice) and q

tance attached to these principles is evident from the nu

reiterated in the Quran: haqq is used 227 times, qist 15

Rosen argues that justice is the central feature of the

administration (2000: 74). Justice appears as the objective

ultimate goal of religion itself, making it a devotional act Quran calls upon believers to deal with each other wit

fuller invocation, the Quran demands:

O you who believe! Stand firmly for justice, as witnesses to

against yourselves, or your parents, or your relations, be th

better protector to both (than you can be). So follow not th

if it leads you to avoid justice; if you distort your evidence

God is all knowing of what you do. (Quran 4: 135)

These notions of fairness and morality are intrinsic to

and theorization. Makdisi (1985) argues that equity is a

that Islamic law in turn had an influence on the evol

during its formative periods. From Islamic human rights tis frequent reference to egalitarian principles, ethical stand

expectation. Using a socio-historical approach, many

thinkers seek to show that Islamic law in its ideal for

justice. Yet the risk in using morality as a yardstick is t

and work both ways, depending on socio-cultural mor

who argue against the equal rights of women or migrants

that the social order must be hierarchical. To argue o

position) through logic and analysis is considered as mere

not persuasive. To make a valid argument in Islamic

follow a well-developed methodology.

Land, Law and Islam

h f d b l f W i


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the centre of debate not only from a Western perspectiv

societies. As Arkoun notes:

The so-called Islamic revivalism has monopolized the discoscientists, moreover, do not pay attention to what I call the

of true believers who attach more importance to the religio

absolute of God than to the vehement demonstrations o

(1988: 205)

Islamic law is not Gods law, a prerogative of jurists or

fundamentalists or the state. It is about how Muslims are their legal and ethical framework.

Foundations of Islamic Law and Usul

Usul al fiqh is a science which deals with the methods of r

of interpretation when construing the Quran and Sunna. which determines the substantive rules of law through th

of Islamic law obtained from textual sources (furu al fiqh) a

Islamic jurisprudence, which is the search for essential

jurisprudential techniques. Fiqh is thus the end product of

Socratic deductive approach may be the mark of distingui

ship but, bereft of rigorous reasoning as recognized by merely ray, which is not formatted for in house Islam

preter of Islamic law, for example one aspiring to cond

reasoning, would have to adjust his or her hermeneutics

alleys of the highly developed and sophisticated jurisprud

theoretical and methodological base on which Sharia law

Although there are different ways in which Islamic law

is the best-known, being a well-established jurispruden

Islamic legal principles. Although it is not a magic wand

validate premeditated conclusions or manufacture a new

that mirrors particular expectations, it could well catalyse

nasl (p o e ) a d mal (p ope t ) The impli atio of p



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nasl (progeny) and mal (property). The implication of p

priority is that no law can violate this essential and also th

maslaha or promotion of the public interest must operate

1999). Thus, property and land rights lie at the very heart

be approached within the Islamic methodological framew

below.

Evolution of Islamic Laws Relating to Lan

As stated above, there exists no amalgamated or systema

law or property law, even though it is an important b

learning. However, classical jurists debated issues relating

Khadduri and Lienbesny 1955: 179). It is worth noting th

jurist Abu Yusuf is best known for his pioneering Islami

his famous treatise Kitab al Kharaj (The Book of Laformative classical period between the seventh and the n

tions and doctrines relating to Islamic property law emerg

In an influential legal analysis, The Case of the Land R

shows how Islamic conceptions of property rights ad

socio-economic and political contexts. Focusing on docu

man period, he demonstrates that by and large the classica

and rent did not hold for the Ottoman Empire, and th

ledged the transformation.

The classical law relating to property and land rig

periods of influence Ottoman, colonial and post

Ottoman period saw the rise of legal enterprise when

1520, became known as the Kanuni (lawgiver). Amon

those in the areas of land rights, taxation and waqf. Twhich was rooted in part in traditional Islamic principle

custom and specific socio-political contexts, is best know

the law. The 1877 Majalla or Ottoman Civil Code, de

Land, Law and Islam

translations/codifications of Islamic laws from traditional


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translations/codifications of Islamic laws from traditional

of Baillie, Minhaj, Khalili and Hedaya, which provid

specific schools of Islamic jurisprudence, geographical a

However, the contemporary structure of Islamic propert

the Western legal arrangement. It covers a wide range o

holds, joint ownership, pledges, bailment, lost property,

gift, restraints on alienation, fixtures, pre-emption, mort

wills, intestate succession, nuisance, and causation (see M

laws relating specifically to the property rights of wom

variety of fields such as family law (marriage/mehr/mguardianship), property law (gifts, waqf, sale and hire) (S

economic law (right to work, income), as well as public la

Sources of Islamic Law Relating to

In Islamic law, there is a formal hierarchy of sources of law

of Islamic law are the Quran, read alongside the Sunna

Quran to be the literal revealed word of God and as s

material source of law, containing as it does Gods pl

commands and prohibitions. The Quran was gradually re

over a period of 23 years. However, it should not be rhensive Code of Law. Only a small proportion of the Qu

legal matters and to the Western eye those matters ar

systematic form (Esposito 1982: 45).

The Quranic stipulations on general aspects of proper

significant and were discussed in some detail in the previ

equally significant on gender rights they recognize wom

4, 4: 7 and 4: 32) as well as in their fixed inheritance

grant half the share of the male to women (See Awde 20

property regime, such as the compulsory inheritance

explicitly by the Quran most Muslims would consider th

standards with respect to property and land rights find res



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standards with respect to property and land rights find res

The body of law derived from sacred sources was deve

time in the hands of private scholars. Beyond the Qura

source of law lies in the Sunna, the records of the w

Prophet in the form of hadith, which are a diverse c

(Siddiqui 1993). Doubts over the authenticity of som

narrators led to the development of limited, well-acknow

Where there is a conflict between the Quran and t

prevails. Problems can arise where the Sunna is extens

general and limited. For example, the basis of the Islamica verse in the Quran (4: 34), but there are also several

Here the challenge is to weed out spurious gender-

norms projected as Islamic truisms with reference to th

Quranic stipulations.

There are two other main sources of Islamic law, fir

second, qiyas (reasoning by analogy). Ijma is commonunanimous agreement amongst those who are learned

particular time on a specific issue (Hasan 1984). However

that the concept should be regarded restrictively and refer

of jurists at the time of the first generation of Muslims. O

the concept to encompass consensus in each particular ag

that it extends to the unanimous agreement amongst theauthority from a hadith to the effect that My community

error (Esposito 1982: 7). Together qiyas and ijma besto

prudence dynamism and scope for development. For in

allowed guardianship over the property of minors; th

extended by qiyas to apply to the guardianship of minor

1999). Reasoning by analogy arose because of concern a

and scholars on the need to maintain a close relationship

and textual sources of law. Qiyas is the method of transp

one case to a new case that is under consideration, becau

reason or cause on which the ruling was based This

Land, Law and Islam

jurisprudential school the Maliki It arises in a relativel


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jurisprudential school, the Maliki. It arises in a relativel

application of qiyas gives rise to a harsh or unjust result an

of discretion on the part of the judge to achieve a mo

Discretion can only be so exercised when there is no indic

the Sunna as to the appropriate decision (Kamali 1991)

courts could construe such mitigating factors as duress o

for voiding binding documents.

Another supplementary principle of law is maslaha, ba

and human welfare. It is a method associated with the M

prudence and permits the jurist to find a solution using don determining and promoting mans best interest in a c

again that it is not a matter covered by any textual source

Quranic verses support this concept (10: 7, 22: 78 and

debate as to its nature and scope. Islamic scholars, includin

Al Ghazali, considered maslaha as applicable to secure a be

Generally three requirements for public interest (maslaha)First, it must be for the benefit of the community an

Second, it must be a tangible benefit and not an illusory o

conflict in its essence with anything from Islamic law (Sha

general welfare has had a wide and important role in the d

law, justifying Muslim rulers throughout history in inte

laws on the grounds of justice. Protection of property public interest considerations as a matter of priority (Nya

basis of maslaha that the companions of the Prophet dec

(agricultural land tax). The discretionary power of the m

of a waqfis governed also by the principle of public interes

the endowment. However, as Esposito (1982: 9) warns, w

add a flexible quality to legal interpretation, it should no

wheeling but a disciplined principle of law with definite

is to function. Moreover, it is concerned only with muam

Islamic law itself, as it emerged from the Prophets tim

Islamic customary practices and as the faith spread it brou



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Ijtihad (Personal Reasoning)

Ijtihadis a well-established Islamic juridical mechanism to

prudence in the light of contemporary issues (Weiss 19

principle of maslaha it is of some importance with resp

and property rights. Strictly not a source of law but an

ology, it is literally an effort to find the right princip

however, to the jurist, but is the fard kifaya (sacred dut

individual. A question may arise about a Quranic texwould apply personal reasoning to come to an interpretat

there are verses of the Quran which are regarded as muh

biguous), incapable of interpretation and consisting of

commands. On the other hand, there are verses which ar

of different interpretations) (Al-Nowaihi 1975: 175). A

Muslim majority accepts is the repeal of naskh (inopeQuranic verses) when determining legal issues.

The idea that the gates of ijtihad were shut in 1258

which had led to the assumption that ijtihad is no lon

discredited (Hallaq 1984, Coulson 1969). Efforts of pione

born Muhammad Iqbal (d. 1938), Turkish Ziya Gokalp (

ians Mohammad Abduh (d. 1905) and Rashid Rida (d. continue to resound. Far from being the prerogative of

ijtihad has equally been a favourite with Islamic revivalists

thepost facto validation of ijtihadthrough ijma that conver

reasoning into a discovery or finding for the benefit o

internal Islamic authentic process through which Isla

property rights can be more systematically clarified. It is

making Islam continuously relevant and also explains ho

by society. Since various aspects of land and property rig

thought out, such as access to land and security of tenur

scope through ijtihad to develop Islamic thinking and lega

Land, Law and Islam

Prophet and his descendants are acceptable. Ijma as a sou


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p p j

has to be validated by an Imam or his representative

outright (Nasir 2002: 268). Among the Shia sect of Is

concerned the mujtahidcannot only make judgments and

matters but also interpret the tenets of religion and the pr

Among the Ismaili branch of the Shia, there is a hierarchy

knowledge and insight, distinguishing between the Imam

knowledge, his representatives (dais) and all other believ

The main Ismaili legal text is the Daaimul Islam (Pillars of I

Among the Sunnis, who constitute the majority of Mthere are four main madhahib (singular maddhab, jurisprude

Maliki; Hanbali; and Shafii. These madhahib were nam

jurists and each is the dominant authority in different pa

early jurists, through legal judgement and reasoning, jus

terms of interpretations of the hierarchical sources and b

urf (local customs), building the jurisprudence into a sysand practices (Murad 1995). Anyone venturing to disc

specific context must be aware of the prevailing jurispru

note on the geographical distribution of the Sunni maddah

The Hanafi and Maliki schools were the first to develo

became the most geographically widespread. Hanafi o

spread from Afghanistan and India to parts of East Africa. Ain the Ottoman empire, Hanafi jurisprudence is prevalen

but in other parts of the former territories such as Syr

Cyprus, Jordan and Palestine. The Maliki school grew

Medina, spreading through North Africa and on to Su

Nigeria, Senegal and the Arabian Gulf including Kuwait.

extensive use of hadith and its reasoning was not confined

istislah, though confined to social transactions as opposed

furthered the pursuit of public interest (Esposito 1982: 9). B

Hanafi, tolerated divergence of opinion within their doctr

The Shafii school started in Cairo spreading to Yeme

Recognition of the prevailing Islamic school of jurisp



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engage with the Islamic legal discourses in a particular

Hanafism, the most widespread of the four schools, i

flexible and open to innovative interpretations of its cor

even within schools there could be variations in practice

and Afghanistan, where the Hanafi doctrine applies). Th

approach may lead to cross-fertilization and innovative a

there is the methodology of talfiq (patching), by w

authoritative support to the compilation of a legal regula

more than one maddhab, a method used more than onmodern legal codes (Sonbol 2003: 37; Esposito 1982: 69)

Islamic Law in a Pluralist Wo

Legal systems throughout the Muslim world exhibit conto their specific historical and colonial contexts, the s

extent to which Islamic law is able to trump secular o

legal system of many a Muslim country has undergone e

to varying degrees, notwithstanding the principled irrevo

origins, owing to Western influences. This is evident n

where Islamic laws were considered harsh, but also in

Muslim countries chose to reform laws relating to real e

laws which also impact on land, property and housing r

international trade and business. However, one area whe

tinued to prevail is the body of personal status or fa

marriage, gifts, inheritance, maintenance and waqf wh

housing rights are also implicated.

Saudi Arabia and Iran are exceptional countries whic

Western legal influences and profess exclusivity of Islam

Other Muslim countries represent a greater hybridity o

between the Saudis and the Iranians however there are

Land, Law and Islam

Turkey, Iran and Saudi Arabia, the relationship between


57/256

secular laws continues to be debated. Legal systems in

derived not only from the British or French systems but al

systems such as the Dutch (Indonesia), Spanish (Morocco)

Central Asia Uzbekistan, Tajikistan, Kazakhstan and A

system is influenced to varying degrees by Soviet construc

Similarly, in some Muslim countries there is an ama

from within civil law systems (as in Morocco) or a confla

common laws (Egypt). A comparison of Tunisia, Morocc

the IslamicFrench combination, yields interesting differeTunisia, family or personal status laws have undergone libe

to Muslims and non-Muslims alike, while in Morocco ce

are unfolding. This is equally true of Muslim countries fro

to the Maldives, Pakistan and Bangladesh, which apply Br

where the extent to which Islamic law prevails varies and

monarchs law prevails more than the formal, while thnesians are able to assert their customary laws despite

modern laws. Brown (2001) notes, however, that there a

between the judicial systems in the Arab world, although

and influences have given rise to a range of forms of gover

The primacy of Islam within Muslim countries is pr

where it is extended to non-Muslims and Muslim minMuslim countries exempt non-Muslims from personal law

minority rights. Islamic law is not always uniformly applie

can be regional or local variations, particularly in respons

religious laws. Further, the question of the application of Is

in non-Muslim countries such as India is controversial: th

the abolition of Islamic personal status laws presently app

several parts of Africa, from Eritrea and Gambia to Kenya

personal law generally applies to Muslims (Mamdani 1

Sudan, however, the application of Islamic law to all resid

Muslim concentration regardless of their religion is some

potentially complex and difficult relationships betwee



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Islamic law and other forms of law, whether state or cus

of a variety of different legal spaces and normative orde

conflict; yet, as Rosen (1999: 93) suggests, that does not h

points to the existence in Moroccan society of seemingl

tions, Maliki Islamic law, Berber and Arab customary pr

law, confessional laws, and contemporary Moroccan c

treated as mutually contradictory. Instead, individuals

making choices about forums and treating them as resou

with reference to Indonesia, in the practice of reasoning ing decisions reached, Muslim authorities and ordinary

found themselves having to tack among competin

commands (2003: 910).

Indonesia is an example of differing ideas of justice o

site of long-standing, diverse efforts to shape lives in an I

even longer-standing and more diverse efforts to shape t(local complexes of norms and traditions) (Bowen 2003: 4

policy privileged the supposedly indigenous customary

adatrecht), utilizing the reception theory, which held tha

had the force of law where they had been received or in

tradition. Tensions about which regime should govern In

rise to debates at all levels of society about the appropriaand state laws (Cammack 2000: 4). Thus debates regard

always about Islamic law itself but about its relationship w

This relationship is a product of historical, socio-cultural

particular countries or even local contexts can have the

and, equally, opportunities to mediate the outcome of suc

Similarly, Brown (1997: 2029) considers the popu

Egypt, arguing that, at least where housing and real estate

choose between formal and extra-legal bargaining opport

offered by law as a complement to a range of prob

However rather than this seemingly passive legal plur

Land, Law and Islam

Islamic law cannot be studied in isolation. It is continuo

h d d d l


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state, the community and individuals in response to speci

made regarding Islamic law are not purely religious or j

appreciated in their political milieu. Ayubi, in discussing

1971 Egyptian Constitution (relating to the Sharia) no

dimension can dominate: Because of such politicization,

does not rise above the level of political agitation and sup

feelings. This politicization is to the detriment of serious a

to be impartial (Ayubi 1991: 203).

Paying attention to legal pluralism, or legal dualitieenhance our legal understanding of both Islamic law an

lapping and competing norms to be found in Muslim

(1999: 14) suggests that it enables us to see more clearly si

the possibilities open to [those] who seek to redesign the

those times or places when individuals do not tack betw

seek either to manipulate or altogether ignore the formextra-legal norms are adopted. This is often the case wi

rights, particularly in the context of the informal squat

world, including the Muslim world. It is well-known th

one finds, for instance, well-developed land markets, whi

legitimate from the perspective of the participants, but w

outside established legal authorities (Razzaz 1998). These sometimes referred to as quasi-legal or informal, but thei

are not so clearly delineated. However, the full picture

engaging with both internal and external pluralities,

normative florescence (2003: 4).

Islamic Law in Action

The scope of Islamic law (Sharia) relating to property

main textual sources generally applied in Muslim societie

kept the Sharia with all the interpretations that follow

h d S i h l i h h H fi h l f



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orthodox Sunni schools, with the Hanafi school of

privileged position as the most flexible of the four. On

because of the limits and lacunae found in Sharia law,

devise secular codes and laws. The Ottomans, how

seriously worked out this distinction between the relig

These qanun were extracted from urf, the customary law

they did not contravene Islamic laws.

Even within Islamic legal systems, there exist num

personnel that implement the range of laws and interemerely the qadi or judge within an Islamic jurisdiction

with secular matters. There could be administrative offic

(ombudsman) as well as those in the informal legal busin

issuefatawa and the mujtahids (those exercising ijtihad). T

the auth

Land Law and Islam (English Language Version)

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