The question of land ownership is one of the most serious issues of our times. Being a subject of much debate, the actual issue remains buried under the debris of conflicting opinions. Some support the capitalist form of private ownership while others support the opposite extreme of communist-style state ownership. This has made it difficult to understand the concept of private ownership in Islam properly. The Islamic concept of ownership needs to be examined against the backdrop of the Islamic social order and economy alone. We, therefore, attempt to present some significant excerpts on the subject from the writings of the author-editor.
Law’s Reticence
The universal rule is that the law’s reticence about a common occurrence always implies its consent and approval. This also applies to land ownership. People have owned the land since time immemorial. The Qur’an did not forbid this ownership, nor did it make any critical reference to this common practice. It allowed private ownership to continue and approved it by inference. The Qur’an acknowledges that man essentially needs land for two purposes: agricultural and residential. When we carefully study the prophetic tradition and the precedents of his Rightly – Guided Caliphs, we reach the same conclusion that the Shari’ah not only approves the right to own land but also never imposes a limit on its own except in the interests of justice and rights of God and His subjects.
Precedents of the Holy Prophet Muhammad (Peace Be Upon Him) and His Caliphs (Peace Be Upon Them)
To understand how the Prophet (Peace Be Upon Him) and his successors, the four caliphs managed land, we must recognize that land under the state’s jurisdiction is divided into four categories as follows.
- Land belonging to those who embraced Islam
- Land owned by unbelievers, living as citizens of the Islamic State
- Land owned by those subdued into submission by forceland belonging to nobody
Let us now discuss the precedents from the Prophet (Peace Be Upon Him) and the four caliphs for each category.
First Category of Land
The general rule, without exception, in the prophetic traditions and precedents of his successors is that the property belonging to those who embraced Islam remained untouched.
Second Category of Land
The rule enunciated by the prophet for land which belonged to those who remained unbelievers, but willingly chose to be citizens of the Islamic State, was that the state should follow the terms and conditions of any agreements made with them in letter and spirit. Based on this rule, the prophet allowed non-muslims in certain places to retain their ownership of land, industries, businesses, and trade. They were only required to pay Jizyah (capital tax) and kharaj (land tax) as per their agreements. The same practice was followed by the caliphs without exception to this rule. It, therefore, remains a legal precedent unanimously agreed by Muslim jurists.
Third Category of Land
There are three different precedents concerning the property of those who continued fighting Islamic forces until they were subdued into submission. The first case is the conquest of Makkah during which the Prophet (Peace Be Upon Him) declared a general amnesty and allowed the Makkans to retain ownership of their lands and property. The second case concerns the Prophet (Peace Be Upon Him)’s actions at Khayber where he declared the conquered land as part of the war – gains (for the public treasury and the rest distributed among soldiers). The existing owners had to forego their ownership rights. The third case concerns the stand that Hadrat Umar took in Sham and Iraq, and subsequently in other conquered territories. He declared the conquered land to be a common property of the Muslims with the caliph as its custodian. He left the lands in possession of their original owners, known as Dhimmis (free subjects) who had to pay the land tax while the revenue generated was spent on public welfare schemes.
Fourth Category of Land
Let us now examine the case of lands owned by nobody. This category of land, in possession of the state, consisted of two major classifications:
The Mawāt or wasteland, with no owners or whose owner had long died, and also land inundated by floods or those rendered useless by wild growth or swamps.
The Khālisah or land was declared as state property. This includes three types of lands; those abandoned by their owners authorizing the government to put them to use as deemed fit; those annexed by the state as a punishment for their owner’s anti-state activities; and those declared as state property in a conquered territory.
Let us now discuss the rules applied to the two types of lands, Mawāt and Khālisah in greater detail.
Ownership Rights on the Basis of Settlement
The Prophet (Peace Be Upon Him) revived and regulated the oldest human practice of Mawāt (wasteland occupied by nobody). Over time, as mankind settled on earth, the natural legal right was established that whoever rehabilitated a piece of land that belonged to nobody, was its rightful owner. This same rule was ratified by the Prophetic Tradition. The Prophet (Peace Be Upon Him) additionally laid down two rules.
- A person rehabilitating another’s property would not be entitled by this act to claim ownership of it.
- Anybody who takes hold of a piece of unclaimed land and, in order to claim his right, erects a boundary – wall or draws a line around it without actually rehabilitating it and making the land productive, would lose his right of occupancy after three years. Senior Muslim jurists unanimously support this view. They have, however, differed on whether the mere act of rehabilitating unclaimed land entitles one to ownership, or this ownership has to be approved by the state.
Award of State Lands
The Prophet (Peace Be Upon Him) awarded the title of both the Mawāt (unclaimed desolate land) and Khālisah (state land) to the people. This same practice was then followed by Al-Khulafā’ Al-Rāshidūn.
The Shari’ah Perspective on the Award of State Lands
The procedure followed by the Caliphs for awarding the titles of state lands was very unlike the feudal custom of royal decrees and baksheesh who favored a coterie of sycophants and courtiers. It followed a strict, well-defined pattern governed by certain rules and regulations. As recorded by prophetic traditions and books of history, these rules may be summed up as follows.
- The first eligibility for a person seeking the title of a state land is to render meritorious services for the cause of his Religion and State. The land could also be awarded to someone if such a gesture was considered appropriate for the community’s collective good.
- The person awarded a title of state land was bounded by the law to put the land to productive use. Failure to do so for three consecutive years renders the award cancelled.
- The third rule was to review the award if the land was not being correctly used.
- The fourth rule was that the government was authorized only to distribute from the state lands of Mawāt and Khālisah categories and could not take away the personal property of an individual to gift it to another. It was also not entitled to impose on the actual owners of the land, another person as their landlord, nor could a feudal supremo obtain ownership rights and reduce the actual owners to the status of farm-labour and peasants.
Feudal estates and Islamic Shari’ah
According to the Islamic Shari’ah, it is unlawful for rulers to gift state lands to their favorites. No tyrants or autocrats are permitted to hand out state lands as favors to their cronies, sycophants, and those engaged in their service, or to promote their own personal interests and image. The awarding of state lands is itself a lawful act but has to be governed by certain rules. All those who award land are not the same, nor are the recipients. The state award is to be conferred by a fair, righteous, and God-fearing ruler to true servants of the religion and state who merit such awards.
They should also be offered from funds or lands which rightly fall under the Muslim ruler’s dispensation. There are meanwhile awards which tyrants and autocrats make to those as bad as they are for no plausible purpose and which are often lavished recklessly out of lands which the rules are not legally authorized to use. There are thus two distinct categories of awards and they must be treated differently. The first category is lawful, and justice demands them to be upheld. The second category is illegal and, according to the dictates of justice, they must be annulled.
Respect for Ownership Rights
The testimony and precedents of the golden era of the Prophet (Peace Be Upon Him) and his caliphs provide us with a blueprint for the way the Qur’anic injunctions should be translated into practice. This blueprint leaves no doubt about Islam’s standpoint on private ownership. Instead of favoring public ownership at the cost of an individual’s right to own, it reaffirms that Islam considers private ownership as the natural and correct way of putting the land to better use. It gives orders to respect the right of the individual to own based on the prophetic traditions.
Islamic Social Order and Private Ownership
The injunctions of the Qur’an and Sunnah are never in conflict with each other, they make a mutually harmonious whole. Let us presume that Muzāra’ah, which is a form of cultivation where the land belongs to one person and the farming is done by another and the two share the produce, is not allowed by the Shari’ah and that Islam prefers ownership rights to be restricted exclusively to the land tilled by the owner himself and that farmland he does not cultivate personally should remain idle or be distributed to others without paying him a farthing in return. With closer inspection, it is clear that such a rule is totally incompatible with the spirit of the Shari’ah and the legal system of Islam.
The inherent contradictions of such a provision can be summarised as follows.
- Ownership rights in Islam also applies to women, children, the ailing and the old. Making Muzāra’ah illegal would bar weaker segments of the society from owning agricultural lands.
- The Islamic law of inheritance permits a single person to receive many shares of inheritance from many relatives which may include hundreds of acres of land. It would be strange if it is unlawful for the person to benefit from his lands except for the parts he himself cultivates.
- Islamic law places no restrictions on buying and selling of anything lawful and acquiring ownership of something without limit on quantity or size and no restrictions on putting them to profitable use. This includes land, therefore it would be strange that while permitting the purchase of any amount of land, a person would not be able to take advantage of his land beyond what he tills himself.
- Islam allows a person to own many houses from which he may use one to suffice his needs and the rest can be rented or sold to earn money. It does not require that he donate his additional accommodations to the homeless. Why would the Shari’ah then compel the landowner to distribute his excess land free of cost to the landless?
- Islam entitles everyone to enter into commercial deals on principles of Mushārakah and Mudārabah, therefore why should the same principle not be applied to agricultural land?
The Question of Delimitation of Agricultural Land
Q.I: Will you please elucidate the Shari’ah point of view in respect of confiscating feudal lands beyond the approved limit under the agricultural reforms?
Q.II: As for the ejection of peasants, it is evidently not permissible until the harvest has been done.
As a matter of principle, the proprietary rights of feudal lords are not established on the feudal states, doled out to them by any government, the way those are confirmed on lands purchased by someone or acquired by him through inheritance. The government can always review the case of a feudal estate and, if it is found to be unfair, can amend or even cancel the decree.
The government is authorized to pass legislation banning the eviction of landless farm labor/tenant by the landlord without offering a plausible reason. This is to ensure the rule of law and public safety and to provide a check on social unrest and injustice.
Sharecropping between Landlord and Farmer
There is nothing wrong with the practice of Muzāra’ah, a model of farming where the landlord and farmer distribute the shares of their produce equitably among themselves. The landlord has to provide the farmer with enough land of which its products can fulfill his needs sufficiently. He is also required to determine physically, according to the demands of justice and irrespective of customary practice, the actual proportion of the products to be shared between them.
Meanwhile, he is entitled to monitor any unfair means that the farmer may be tempted to use and to ensure that the rules of the game are correctly observed. The status of the farmer, however, should not be seen as a servant or laborer, but that of a partner and stakeholder in the business.
Principles of Property Management
The Qur’anic verse tells Muslims how to safeguard the rights and responsibilities concerning the property. We have been instructed not to let the property be passed on to immature persons, lest by their inadvertent use, they disrupt the socio-economic fabric and ultimately the ethical foundations of society. The rights of private ownership are hence not without checks and balances and nobody has unlimited power over their property. The injunction of this verse is that owners at the micro-level have to be careful when passing over their property to a person and have to ensure that he is capable of its proper custody and use. At the macro-level, the Islamic government is responsible to take under its custody, the property of those who may not be capable of managing it themselves, or who are found using it wrongly. The government, as well as guardians and custodians of the under-aged, are also instructed to deal with them with an atmosphere of love, conducive for their healthy physical and mental growth.
