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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
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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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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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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
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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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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
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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
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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
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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
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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
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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
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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
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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.
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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
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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