The Legal Precepts (Ahkam)

Distribution Of (Public) Wealth In Two Stages

Distribution Of (Public) Wealth In Two Stages1

Wealth distribution is accomplished in two stages, pre-production and post-production. The first is distribution of the material factors of production, which are the material inputs in production. The other is distribution of the output from production.

Factors of production include land, raw materials, and tools and machineries required for the production of various goods. All these are required both in agriculture or manufacturing. As for production output, it is the outcome resulting from putting together the capital goods with raw materials and human labour. There is thus primary wealth, which constitutes inputs into the production activities. There is also secondary wealth, the output man successfully generates by employing all the factors of production.

Distribution therefore involves both, primary wealth and secondary wealth. Evidently the distribution of primary wealth – or factors of production - precedes the production process itself, since individuals carry out production activity in accordance with the way the society distributes the factors of production. As for the distribution of the secondary wealth – the production output - it is related to and is dependent on the production process, for the latter influences the results of production.

However, when the capitalist economists study the problems of distribution with the capitalist framework they do not look at the entire wealth of the society and its natural resources that constitute the factors of production. They only examine the issue of the distribution of the production output. They consider the distribution at the level of the national income, instead of the entire national wealth. By national income, they mean the economic output comprising goods and services generated by the economy - or more explicitly the value of the gross production for a certain period, for instance, a year.

Therefore, a discussion of distribution in political economy is the discussion of the distribution of this economic value generated in production among the elements that contribute to the production activity – capital, land, entrepreneurship and labor - and the measure of their respective shares in the form of interest, rent, profit and wages. Because of this, it is natural that discussions of production precede those of distribution, so long as it means the distribution of the value of the production output among the various factors of production. On this basis, we find that the capitalist political economy considers production as the first subject matter of discussion. So it studies the issues in production first and then tackles the issues of distribution.

Islam, however, treats the issues of distribution on a broader and more comprehensive scale. It does not confine itself to dealing only with the distribution of the production output while steering clear of the deeper issues. By deeper issues, I mean the pre-production distribution or distribution of the factors of production. Doctrinal capitalism, or the applied capitalist economic system, has ignored the issue of the distribution of the factors of production completely and leaves that to the control and authority of the strongest, under the slogan of economic freedom (the laissez-faire doctrine). This only serves the interest of the strongest and opens the way for the monopoly-style exploitation of natural resources and their deployment.

On the contrary, Islam intervenes in a constructive manner, at a pre-production stage, in the distribution of natural resources. Islam divides natural resources them into several categories - each category marked for a particular mode of distribution - such as private ownership, or public ownership, or state ownership, or a public property accessible by all (ibah atul-‘ammah). It formulated for each a set of rules, along which the revenues generated from the assets are to be distributed.

Thus in Islamic economic system, distribution constitutes the starting point or the first step, instead of production as that in the traditional political economy. The rationale is that the distribution of the natural resources takes place before the production activity itself. Any subject that is connected with the production activity is relegated to the second stage. We shall now begin with ascertaining the position or the standpoint Islam takes with regard to the distribution of the natural resources and the wealth generated therefrom.

The Factors Of Production From Natural Resources

Before we begin with the details on how the factors of production are to be distributed, it is necessary that we specify the sources. In political economy, the primary factors of production are land, capital labour and entrepreneurship2. Land is defined to include natural resources used in the production of goods and services. But when we discuss the distribution of the factors of production and their respective forms of ownership in Islam, we must exclude two elements from our discourse. These are capital and labour.

While capital is also a key input in the production of finished goods - accomplished with human labour - and also contributes to the generation of additional wealth, it is a produced wealth and does not come directly from nature. The equipment and machinery that produces textile goods are not natural resources. It was originally a natural material, shaped and processed with human labour in a previous production process.

We are presently discussing only details that regulate the distribution of natural assets prior to production, which is the distribution of the wealth gifted by God to human society before it sets out with economic activities and production works. As long as a capital comes from a previous act of production, it is part of ‘post-production’ distribution, and will be included in the discussion of the production output together with consumption goods and industrial products. As for labour, it is an abstract and an intangible element without a physical form so as to be included in the orbit of public or private proprietorship.

On this basis, only natural resources - from among the other production inputs – that could be the subject matter of our study (on distribution), for it represents a tangible material element prior to production.

Difference Of Doctrinal Standpoints Concerning Distribution Of Natural Assets

Islam differs from both capitalism and Marxism in the details of dealing with the subject of distribution of natural resources. Capitalism connects the ownership of natural resources and their mode of distribution with the individuals of the society and their respective skills, capabilities, drive that they command - within the orbit of the ample economic freedom allowed to all of them - in the competition to acquire the largest possible shares from those resources. Thus it permits each individual to acquire and take exclusive possession of, what in essence is, luck or good fortune enables him to successfully obtain out of the riches of nature and himself.

Marxism in turn views it in accordance with its universal approach in interpreting history, that the ownership of the factors of production is directly connected with the prevailing mode of production. It is what each mode of production determines - at the respective stage of history - as the mode of distribution for the relevant factors of production and the respective class of individuals who should own them. This mode of production remains in continuation until history enters another stage, and production begins to assume a new form.

As the mode of production evolves, its progress is held back by the prevailing system of distribution since the growth and development of the former. When the prevailing system of distribution breaks apart after a bitter conflict with the new mode of production, a new form of distribution of the factors of production emerges. The new distribution system for the factors of production is one that recognizes the social conditions necessary for the new mode of production, thus facilitating its growth and development. The new distribution system is such that it supports the new mode of production as it is always established on the needs and evolution of the mode of production.

So during the history’s stage of agricultural production, the mode of production necessarily imposed the establishment of a feudal-style distribution system (in relation to the factors of production). Later, during the stage of technology-led industrial production, the capitalist-style private ownership (over the factors of production) became dominant. At a particular stage during the evolution of technology-led industrial production, the replacement of the capitalist class by the proletariat class, and the resulting change in the distribution system was inevitable.

But the Islamic principles in relation to the distribution of factors of production differ from both capitalism and Marxism. Islam does not approve the capitalist concept of unrestrained economic freedom (laissez-faire) as we have seen earlier in the discussion of capitalism3. Likewise, it does not agree with Marxism that suggests system of ownership of the factors production that self-adjusts to the prevailing mode of production because of the inevitable connection between the two (as claimed held by Marxism), its landmark concept4. We observed this in earlier discussion.

Islam places restrictions on private ownership as regards the factors of production and separates the distribution of those resources from the mode of production. From the Islamic perspective, the issues pertaining to the distribution of natural resources are not about compatibility with the mode of production. Islam disagrees with the Marxism’s idea that the distribution mechanism self-adjusts - due to the dynamics of the society - each time the need of production changes and requires a compatible system of distribution that facilitates its progress and growth.

Islam views it as a human issue. Man has needs and desires, which should be fulfilled in a form that preserves and develops his humanity. Man remains a man with his needs and his desires whether he tills the land with his hands or employ electrical or steam-powered tools for that purpose. Therefore, the distribution of natural resources must be organized in manner that will guarantee the fulfillment of these needs and desires within the human framework, which accommodates and contributes to the growth of his being and his humanity.

Everyone, especially in his capacity as a private person has needs and desires that must be satisfied. Islam has facilitated individuals to satisfy these needs by way of private ownership subject to the restrictions and conditions it had established. When relations between men are established and the society comes into existence, there would also be general needs of the society. Islam has guaranteed the fulfillment of the society’s needs by way of common ownership in respect of specific factors of production.

Many individuals are not able to fulfill their needs by way of private ownership and as a result they will experience unhappiness. The overall social equilibrium will thereby be disturbed. Here, Islam sets up a third form of ownership – state ownership - so that the head of the state (Wali’ Al-Amr) may maintain peace and order.

In line with these, natural resources are classified into different categories and their respective distribution is effected based on the applicable form of ownership from the three we discussed above - private ownership, public or common ownership and state-ownership.

Natural Assets As Factors Of Production

We can divide the natural resources in Islamic economics into several categories:

i) Land. It is the most important among the natural resources, without which it is impossible for man to carry on any type of production.

ii) Minerals such as coal, Sulphur, petrol, gold, iron etc.

iii) Natural waterways. They are one of the essential elements for man’s life, which also play an important part in the agricultural production and transportation.

iv) Others: These comprise the contents of the seas extracted by diving or some other ways (such as pearls and corals), natural vegetation and wildlife, gases in the atmosphere and even natural assets like waterfalls with their latent capacity and value in terms of their potential for electricity generation.

Land

Shari’ah has categorized lands that were annexed to the Dar ul-Islam (nation of Islam) into three forms of ownership - public ownership, state ownership and private ownership.

The Shari’ah ties the form of the ownership to the circumstances in which these lands come into the possession of the Islamic nation and the conditions that prevailed thereafter. The form of ownership of land in Iraq differs from that in Indonesia because these countries differ as to the manner in which they were annexed to and became the territories of Dar ul-Islam.

Likewise, in Iraq itself one land differs from another with regard of the form of ownership, on account of the different situation that prevailed over each land when Iraq became Islamic. In order to penetrate the circumstances, we will divide lands in the Islamic nation into different categories and then talk about each class and its nature of ownership.

Lands That Became Islamic Territory By Conquest

Lands that became part of Muslim territory by conquest are those lands that fell to the Dar ul-Islam as a result of jihad carried out in the cause of Islamic mission such as lands of Iraq, Egypt, Iran, Syria and many other parts of the Islamic world.

The circumstances of these lands were not identical at the time of their respective Islamic conquest. There were some that were already cultivated through earnest human endeavours for productive agriculture or for some other uses. There were also lands which - from the beginning of the Muslim conquest - were naturally agriculture-ready without any need for direct intervention by man like woodlands or thickets, with fertile soil and abundant trees. There were also infertile and neglected lands at the time of conquest, classified as barren lands.

These were the three categories of lands with different circumstances at the time of their respective ingress into Islamic history. Islam has ordained public ownership in respect of some and state ownership in respect of others, as we shall see.

Lands Already Cultivated At The Time Of The Conquest

If the land at the time of its entry into the Islamic nation was already cultivated, possessed and worked on by man, then it would become a common property of the whole Muslim community and shall remain that way in the future. There must not be any discrimination between any members of the community and no one must be allowed under Islamic law to acquire the right to take the land into his possession as private property.

The great research scholar Najafi has quoted in his book Al-Jawahir from a number of juristic resource books such as Ghunya, Al-Khilaf and At-Tadhkirah that there is a consensus of opinion among the Imamiyyah jurists regarding this ruling. They are of one accord about the application of the principle of public ownership to a land that was already a cultivated land at the time of its conquest by Islam.

Likewise, Al-Mawardi quotes from Imam Malik the saying that the conquered land shall be a trust property for the Muslim community from the day it is conquered. There is no (additional) need for the Wali’ Al-Amr (the head of the Muslim state) to establish or decree the property as a trust. This is another meaning of the term ‘common ownership by the nation’.

The Evidence And Demonstration Of Public Ownership

The texts of Islamic law – the Shari’ah - and their application are quite explicit about the establishment of the principle of public ownership in respect of this category of land as is evident from the following reported traditions:

1- In a tradition from Al-Halabi it is stated that he asked Imam Ja‘afar ibn Muhammad as-Sadiq (a.s.) about the as-Sawad (black) land (i.e. Iraq) ‘‘what is its status?’’ The Imam replied “It belongs to the entire generation of Muslims of today and to the Muslims who will enter the fold of Islam after to this day and those not yet born”.

2- In a tradition from Abu Rabi‘ Ash-Shami, (it is stated) that Imam Ja‘far (a.s.) said “Do not purchase the land of as-Sawad (Iraq) for it is fay’5 for Muslims.”

The term ardus-sawad in use at that time was used to describe a part of lands of Iraq, which Muslims had conquered in the Holy War (jihad). But the (early) Muslims applied this term to Iraqi land only because when came from their place in the land mass of Arabia - carrying the standards of their divine mission to the world - the verdure of the fields and woods of Iraq appeared to them verging on darkness. They thus termed it as-sawad for they are used to combine both the term al-khadrah (green) verdure and as-sawad.

3- In the reported tradition by Hammad: That Imam Musa ibn Ja‘far (a.s.) said the land, which is taken by force is a trust property left in the hand of one who cultivates and revives it and kharaj (land tax) is levied on those who hold these lands according to their capacity.

By this, it was meant that the head of the state should leave the lands - that were conquered by force - in the hand of those individuals of the Muslim society, who cultivated it and planted crops on it. The state should demand from them tax in respect of the land because it was a public property of the Islamic nation as a whole. When the farmers plant crops on it and benefit from the harvest, they must pay to the nation the price for using it in the form of land tax. It is this price or rent that the term kharaj is applied in the abovementioned tradition.

4- It is stated in a tradition: That Abu Bardah asked Imam Ja‘far (a.s.) about purchasing of a taxed land. The Imam (a.s.) replied ‘‘but who will sell the land while it is the land of Muslims (property of the entire Islamic community)’’.

Ardul-kharaj (taxed land) is a juristic term in respect of the category of lands we are discussing. It is a land already with crops cultivated on it when it was acquired. Kharaj is levied as stated in the earlier tradition and because of that the term a “taxed land” was used.

5- In a tradition reported by Ahmad ibn Muhammad ibn Abi Nasr, from Imam ‘Ali ibn Musa Ar-Rida (a.s.), he explained the types of land and the relevant Islamic ordinances, saying that “Whatever is taken by sword, that belongs to the Imam to grant it to anyone he deems fit.”

6- In the book Tarikhul-futuhil-Islamiyyah it is stated that the second caliph was asked to distribute the conquered lands among the soldiers of the Islamic army, on the basis of private ownership. He consulted the companions of the Prophet. ‘Ali (a.s.) advised against it on the basis of that principle. Ma‘adh ibn Jabal said: “If you distribute, it will place great revenue in the hands of the nation. Then they will die and will thus be eliminated, and the revenue will become the property of a single man or a single woman. Then will come a people who will take their place joining the fold of Islam, but they will find nothing. So decide this matter taking into consideration the fact of making ample provision for the last as for the first.”

So he decided it to be public property. “See what the soldiers have brought to you from among animals and non-arable lands and distribute the same among the Muslims who were present, and leave out the lands to the respective persons having possession over them, so that these be the gift for all Muslims. If we distribute these among those present then there will be nothing left for those who come after them, i.e. the succeeding generations”.

So Umar wrote to Sa‘d ibn Abi Waqqas: “I have received your letter in which you wrote that people are asking you to distribute the spoils of war and what Allah has granted them by way of fay. I order you to see what the army urge upon from the spoils they have brought in, to distribute among the Muslims who have been present in the war only moveable properties (lit. kara‘ = horses, weapons, etc. and mal moveable property) and leave aside the rivers and lands for the ‘ummal - those who work on them - so that these be as gifts to the Muslims. If we distribute these among those who are living at present, nothing will be left for those who will come after them.’’

Some jurists, in explaining the measures of the second caliph, hold the opinion that the sawad (fertile) land belonged to its owners as stated in the book Kitab Al-Amwal by Abu ‘Ubaydah, that when he returned the land to them it became theirs by giving them permanent ownership right in the land and the right of kharaj accruing from it was assigned to the Muslims. So the public ownership (of the land) was connected with the kharaj accruing from the land and not with the permanent proprietary right in the land.

Some contemporary Muslims who accept this explanation say that this is nationalization of the kharaj and not the land. But the facts clearly shows that the measures were taken by ‘Umar on the basis of the belief in the principle of public ownership. His application of the right of permanent ownership of the land and his leaving the land in the hands of those who held it in their possession, were not an acknowledgement and recognition, on his part, of their right to it as their exclusive private property. He gave the land to them by a contract of lease (muzara‘ah) or hire (ijarah) so they could utilize or work the land for productive purposes and enjoy its benefits in consideration of the kharaj to be paid by them.

The proof of this is in an anecdote a mentioned in the book Kitab Al-Amwal by Abu ‘Ubaydah that ‘Utbah ibn Farqad purchased a land on the bank of the river Euphrates. He proposed to start the preparation of land for cultivation. He mentioned this fact to ‘Umar. He was asked by ‘Umar as to the person he had purchased it from. His reply was that he had purchased it from its owner. So when the Muhajirs and Ansars assembled before ‘Umar, ‘Umar asked ‘Utbah if he had purchased anything from these people. ‘Utbah replied in the negative and ‘Umar then ordered him to return it to the person from whom he had purchased it from and to take back his money from that person.

7- There is a tradition from Abu ‘Awn Ath-Thaqafi mentioned in Kitab Al-Amwal that he said that a villager embraced Islam during the rule of ‘Ali (a.s.). The Imam thereupon stood up and said: “As for you there is no jizyah on you and as for your land it now belongs to us”.

8- It is stated in Al-Bukhari on the authority of ‘Abdullah that the Prophet gave the Jews the land of Khaybar to cultivate. They had half of what they produced on it. This tradition - in spite of the presence of other traditions in conflict with it - enunciates that the Prophet had applied that principle of public ownership to the land of Khaybar as a land conquered in jihad. Had the Prophet distributed the land specifically among the soldiers who took part or were present in the battle - under the principle of private ownership, instead of public ownership - he would not have entered into a lease contract with the Jews for its cultivation in his capacity as the head of state. This indicates that the matter was entrusted to the state and not to the individuals who had acquired it as war booty.

Some Muslim thinkers state that the treatment of the conquered land of Khaybar in this manner furnishes a decisive proof of the fact that the state has the right to take into its possession the goods and properties of the individuals — a matter that establishes the validity of nationalization in Islam, for the general rule is that fay’ should be distributed among the soldiers participating in the battle. Therefore to reserve it for the state instead of distributing it among those entitled confers the state the right to lay its hand on the rights and claims of its people, when such step is needed in the best interest and general well-being of the people. It is argued that it is thus valid for the state to have the right of nationalizing private properties.

But the fact is that the appropriation of the conquered lands to state - instead of the army - was indeed not an application of the principle of nationalization. It was an application of the principle of public ownership. Private ownership was not made a law in respect of the conquered land. The lawgiver had formulated the principle for the distribution of fay’ as private property only in respect of moveable assets. Therefore, public ownership of conquered lands bore the original stamp mark of Islamic legislation. It was not with the secondary stamp mark of nationalization or (another) legislation after the properties had become private properties.

Anyway most of the texts we have cited go to establish that a conquered land is the property under the ownership by whole Muslim nation. The Imam as the head of state was responsible to manage and look after it and to demand a specific tax from those who enjoyed its use. The tax was to be paid to him as lease payments in consideration for the benefits derived by them from its utilization. The ummah was the owner of the tax proceeds and because it possessed the proprietary rights, it was entitled to benefit from the tax levied on the land.

Arguments Against Private Ownership (Of Conquered Lands)

There are some among Islamic research scholars who are inclined to the view that subjects the conquered land to distribution among the army who were participated in the battle as their private property, in the same way as all other spoils of war were distributed. They rely juristically on two arguments. First is the Qur’anic verse on ghanimah (booty). Second is the reported practice of the Prophet in the distribution of the booty of Khaybar.

As for the verse of ghanimah, it is what Allah the Supreme says in the Surah al-Anfal:

“Know that the fifth of what you have conquered in the battle belongs to Allah, His Prophet, the kinsmen, the orphans, the needy and the traveller if you believe in Allah.” (8:41).

In the opinion of these people, the verse by its obvious meaning demands that one fifth of the spoils of war was to be set aside while the rest was to be distributed among the soldiers present in the battle. It applies to the whole booty, both land and movables assets. But the fact is that at the most the holy verse only indicates the obligation of the taking one fifth out of the ghanimah (booty) as a duty the state exacts for the well-being of kinsmen, the needy, orphans and travellers.

Let us assume that this one fifth is taken out of land too. However, this does not make clear - under any circumstances - the fate of the remaining four fifths or the mode of ownership that is to be applied to it. The khums (the one fifth) as a duty exacted for the good of specific group can be applied on lands just as it is possible to take it out of the movable assets among the war booty, which belong to the soldiers under private ownership. It is also possible to assume that it is taken out from lands that the people collectively own under public ownership. In general, no nexus is found to exist between khums and the distribution of war booty.

It may be further argued that while the assets gained from war are subject to the application of the “one fifth” or khums, it is not necessary to distribute them among the war participants on the basis of private ownership. The verse in respect of khums does not point to the distribution of the spoils of war among the participants.

The proponents of this view also point to the practice of the Prophet - as reported in the traditions -concerning the distribution of the spoils of Khaybar as private property among the soldiers, who took part in the battle. They are convinced that the Prophet distributed the land of Khaybar among the soldiers as their private properties. However, we completely doubt the soundness of this conclusion even if we were to assume the validity of the historical narrations concerning the distribution of land of Khaybar by the Prophet. The history, which relates this, also carries clear evidence concerning this unprecedented practice of the Prophet, which helps us understand the rules he applied in the distribution of the ‘spoils’ of Khaybar.

There is evidence of the Prophet reserving a great portion of (the land of) Khaybar for the benefit of the state and the good of the Islamic community. There is a tradition mentioned in Sunan of Abu Dawud, transmitted on the authority of Sahl ibn Abi Hathamah that the Prophet divided Khaybar (land) in two halves. One half was to meet his difficulties and needs and another half for distribution among the Muslims. He divided the latter half into 18 parts.

There is a tradition on the authority of Bashir ibn Yasar, a slave of an ansar, one of the companions of the Prophet. The tradition states that when the Prophet conquered the territory of Khaybar, he divided it into seventy and thirty portions (meaning that the whole was divided into hundred portions). Half of this was for the Muslims and the Prophet, and the remaining half he set aside for the deputations that visited him and for the affairs and need of the unfortunate ones.

There is another tradition from ibn Yasar that when Allah granted His Prophet victory over Khaybar he divided it into a set of seventy and a set of thirty portions, the total being one hundred. He set aside half of it for those in hardship and those who visited him from al-Watihah (a fort of Khaybar) and the al-Katibah and related expenses. As for the other half, he set aside for distribution among the Muslims to meet ash-Shiqq and as an-Natah as gifts or benefits for them, and related expenses. The portion representing the Prophet’s share goes with them.

There is another piece of clear evidence that although the Prophet distributed part of the lands to individuals, he had kept the administration of the land under his control and authority, as he entered in direct agreement with the Jews for the cultivation of the land with the stipulation of the option for their eviction whenever he wished to do so. In a tradition in the Sunan of Abu Dawud it is reported that the Prophet intended to expel the Jews from Khaybar. Thereupon they told him, ‘‘Muhammad, let us work the land, we having a share as seems fit to you and your people having a share’’.

There is a tradition in the same book that was reported by ‘Abdullah ibn ‘Umar, that ‘Umar said: “O you people, the Messenger of Allah (S) had allowed the Jews of Khaybar to remain and cultivate the lands on the condition that if we wished we would expel them from it so he who has any property belonging to him let him reach up to it (take it) for I am going to expel the Jews of Khaybar”. He then expelled them.

It is also reported by ‘Abdullah ibn ‘Umar as saying “When Khaybar was conquered, the Jews asked the Messenger of Allah to acknowledge their work on the lands on fifty-fifty basis (applied to the sharing) for the produce. The Prophet replied ‘We let you do so on that condition for as long as we wish’. So they cultivated the land on that condition. The half of date yield of Khaybar lands used to be divided into two fixed portions and the Messenger of Allah used to receive the khums (from that).’’

Abu ‘Ubayah cites in the Kitab Al-Amwal that the Messenger of Allah handed over Khaybar - its date fields and its lands - to its owners on the fifty-fifty basis.

When we bring together these two narrations on the practice of the Prophet – that he kept a large portion of the revenue from the land of Khaybar for the good of the Muslim community and for the affairs of the state, and that he managed the other portion in his capacity as a ruler - we will be able to formulate a description of the practice of the Prophet that is consistent with previously given legislative texts (traditions) enunciating the principle of public ownership in respect of conquered lands. It is possible that the Prophet have applied the public ownership mode to the land of Khaybar. That involved the state assuming the right of proprietorship of the land and employing it for the interests and needs of the nation.

The general needs of the nation of that time were of two types. First, support for the expenditure of the government in discharging its obligations towards the Islamic society. Second, creating social balance and raising the standard of living. At that time, the Muslims lived in hardship, as described by Lady ‘Aishah: “We had not our fill of dates till Allah granted us victory over Khaybar”. This is a measure of hardship, which stood as a barrier against the progress of a budding nation and its remedy would be deemed a general need of the nation.

The prophet’s practice fulfilled both types of general needs of the nation. The Prophet assured the satisfaction of the first need with half of the revenue from Khaybar by allocating it for the less fortunate, foreign visitors and similar purposes, as stated in the tradition given earlier. He also assured fulfillment of the second need by allocating the other half of the revenue of Khaybar to the benefit of a large groups of the Muslims in order to provide help towards the general well-being of the Islamic society and facilitate improvement in the overall standard of living.

However, the appropriation of half of the land revenue among a large number of Muslims did not mean conferring upon them permanent proprietary right in respect of the land. The appropriation was only in relation to its revenue, access and usage, while keeping its mode of ownership as common property. It is this that explains to us that the Prophet had a free hand in the management of the revenue from the Khaybar land, as to the respective individual shares therein. It was because the permanent ownership of the land remains with the state. As long as it remains the property of the nation, the management of its affairs must be entrusted to the head of the state as its guardian.

The conclusion we draw from all this is this: that a conquered land belongs to the Muslim community under common ownership, if at the time of its conquest it is already a cultivated land. It is to be held in trust for the nation and is not subject to the rules of inheritance. Whatever portion of such property a Muslim holds in his possession as an individual of the nation is not transferable to his heirs. Rather, every Muslim has a right in it by the simple fact of his being a Muslim.

It is similar with a taxed land. It is neither inheritable nor saleable, for the sale of a trust property is not valid. Ash- Shaykh at-Tusi has stated in al-Mabsut, “The disposal of taxed land by sale and purchase is not legal, nor by gift, nor by exchange, nor by possession nor by lease (tenancy)’’. Malik says: “The land is not divisible while it is a trust property, for the utilization of tax accruing therefrom for the benefit of Muslims in relation to such purposes of public utility as the supply of military provision for the soldiers, construction of bridges, and mosques and in ways of such other good things of public utility”.

When it is committed to the farmers for use, the farmers thereby do not earn right on the land (in the form of a permanent personal right to hold ownership of the land). He acquires the right of its tenure as a lease to cultivate it and he pays the rent or the kharaj by way of consideration for it in accordance with the terms and conditions agreed upon in the lease (tenancy) contract. When the term of the lease agreed upon expires, his relationship with the land is cut off and it is not legal for him thereafter to further cultivate it or to enjoy its use in any way, except upon the renewal of the contract and by entering into a fresh agreement with the Wali’ Al-Amr a second time.

This has been explained explicitly by the jurist Isfahani in his commentary in al-Makasib, denying an individual acquiring any personal (private) right in taxed lands beyond the limits authorized by the waliyyu1-amr in the lease contract, which gives him the right to enjoy the use of the land and its cultivation in consideration for the rental for a fixed term.

If the taxed land is left neglected such that it has become wasteland and its cultivation has ceased, it does not lose its status of common ownership by the nation. Therefore, an individual will not earn a right over the land simply by carrying out reclamation efforts, except with a license from the Wali’ Al-Amr. Nor will reclamation by an individual result in his gaining a title to possession of the land as his private property.

A person’s entitlement to a special title of private possession of the land by reason reclamation exists only in respect of the state lands (we will discuss this later), not in respect of taxed lands. The ownership of taxed lands is a common ownership of the Muslim nation as stated explicitly by the research scholar, the author of al-Balghah in his book. Therefore, taxed lands that have suffered damage because of neglect shall continue to remain common property of Muslims and do not become a private property of the individual by reason of his reclamation and cultivation efforts.

We can thus retrospectively educe rules of the Shari’ah laws that apply to every land - which was annexed to the Dar ul-Islam by jihad – that was already cultivated at the time of its conquest, as follows:

First, it shall be the common property of the nation and it shall not be lawful to appropriate it to any individual or for anyone to acquire possession.

Second, every Muslim shall have a right to the land in his capacity as a member of the Muslim community, and that the property shall not be subject to inheritance.

Third, it shall not be permissible for any individual to execute a deed of sale, gift or any transaction of such nature in respect of these lands.

Fourth, the Wali’ Al-Amr shall be considered as the one responsible to look after the usage of these lands and the levying, collection and distribution of the related taxes.

Fifth, the tax that the farmer pays to the Wali’ Al-Amr comes under the mode of the public ownership, similar to that of the land itself. The tax belongs to the nation.

Sixth, the rights under the lease contract shall end with the expiry of the lease and it shall not be valid thereafter if the lease gets renewed on a basis of exclusivity.

Seventh, if the taxed land later becomes a wasteland because of neglect that shall not affect its character as a public property. No individual shall be allowed to acquire ownership right therein by virtue of reclamation and restoration works he carries out.

Eighth, the cultivation of the land by the efforts of its previous owners at the time of the Islamic conquest shall be considered the key criterion for it to be placed under common ownership and for the application of the above-mentioned rules. If the land did not become agriculture-ready because of human efforts, it does not come under these rules.

Because of this, in actual practice today we need a vast amount of historical information regarding Islamic lands. For the respective areas under cultivation we need the historical background in order to identify - in light of this information - the tracts that were already under cultivation as opposed to other tracts, which were desert lands at the time of conquest. However, in view of the scarcity of conclusive information in this connection, a large number of the jurists have been content with mere presumptions. All lands that are presumed to have been cultivated lands at the time of its Islamic conquest are considered common property of Muslims.

Let us mention by way of example the attempts made by some jurists to determine those lands of Iraq - which were conquered in the second decade of the Hijra – that were taxed lands and were under common ownership of Muslims. This is mentioned in the book Kitabul-Muntaha by al-‘Allamah al-Hilli

“The sawad land is the land conquered from the Persians. It was conquered by ‘Umar ibn al-Khattab and that is the sawad land of Iraq. Its boundary ‘breadth-wise’ begins from the detached hilly tracts near Hulwan in the direction of Qadisiyyah adjoining with ‘Udhayb bordering on the Arabian land. ‘Length-wise’ it begins from the centre of Mawsil towards the coast as far as ‘Abbadan from both of eastern banks of Dijlah (Tigris). As for both Western banks, which are adjacent to Basrah that is under common ownership of Muslims, is only the ‘Amr ibn al-‘As River (Shat ‘Amr ibn al-‘As ). This land - with its boundaries mentioned - was conquered by force by ‘Umar ibn al-Khattab. He had delegated it after its conquest to three persons, ‘Ammar ibn Yasir as a prayer leader, Ibn Mas‘ud as its Qadi (judge) and the administrator of the baytul-mal (public treasury) and ‘Uthman ibn Hanif as its land surveyor. He had fixed a goat for them for each day - half of it with fallen dates for ‘Ammar ibn Yasir and the half for the other two and declared “I know not, but I think the hamlet from which the goat is taken will soon be destroyed”.

‘Uthman surveyed the land but there was a difference in estimation of its total area. According to the surveyor’s estimation its area was thirty two million jarib while according to Abu ‘Ubaydah’s estimation thirty six million jarib.

In Abu Ya‘la’s book, al-Ahkamus-sultaniyyah, it is mentioned that the limits of the sawad land was ‘length-wise’ from a town off Mawsil up to ‘Abbadan and ‘breadth-wise’ from ‘Udhayb of Qadisiyyah up to Hulwan. In length is 160 farsakh and in breadth, 80 farsakh excluding the villages named by Ahmad and mentioned by Abu ‘Ubayd as al- Hirah, al-Yanqiya and the lands of Banu Saluba and other village which were treaty lands (i.e. Daru’s-Sulha).

Abu Bakr has related with his chain of transmitters from ‘Umar that “Allah the Mighty and Glorious granted us victory over the territory from ‘Udhayb up to Hulwan.”

As for Iraq, it contains by its breadth the whole of the land conventionally termed ‘sawad’ but is shorter in length, as compared its breadth. It begins on the Eastern banks of Dijlah (Tigris) al-‘Alath and on the Western banks of Dijlah from Harbi. Thereafter it extends to the extreme end of the provinces of Basrah to the islet of ‘Abbadan. Its length is 125 farsakh and is less in its breadth by 35 farsakh as compared with that of the sawad land (i.e. 160 - 125 = 35). However, its breadth is 80 farsakh like that of the sawad land.

Qudamah ibn Ja‘far states: ‘‘this makes practically ten thousand farsakh. The length of a farsakh is twelve thousand cubit (zura‘ = forearm) by free (Mursalah) measurement and nine thousand cubits by survey measurement. This will make when the same is multiplied by the same and it is a fractonizing of farsakh by farsakh - twenty two thousand five hundred jaribs. When this is multiplied by the number of farsakh that is 10,000 (80 x 125 = 10,000) the total will make two hundred and twenty five millions jaribs. Deduct from it by (approximation) the area of lands occupied by hills, mounds, dung hills (ant-hills), bushes thickets, beaten tracts, high ways river courses areas of towns and villages handmill pools, lakes, bridges, serap, heaps of wishy out scourings, heaps, threshing floors, reed dumps, and the furance pits of the lease, etc. (we take this to be seventy five million jaribs) the remaining area will come to be one hundred and fifty million jaribs. Take the half of it as uncultivated land and half as cultivated tuning with date palm and grapes garden trees.

If the remaining position from the sawad land (and it is 35 farsakh) is added to what Qudamah has mentioned in respect of the area of Iraq, the area of the land of Iraq will be increased by one fourth. This will make the total of the area of the sawad land fit for the plantation and agriculture. Part of this area however remains idle on account of numerous events.

Lands That Were Uncultivable At The Time Of Conquest

If a particular land was not conditioned by human efforts and was by nature already fertile when it was added to Islamic territory, then it was the property of the Imam. It is a land to which we apply the term ‘state ownership’. It does not come within the orbit of private ownership. It similar to a taxed land in that it is not subject to the principle of private ownership, yet it differs as to the mode of ownership.

Cultivated lands at the time of conquest are considered common property of the nation. As for a land that was barren or uncultivable, when it was added to the Dar ul-Islam, it is considered state property.

Evidence For State Ownership Over Barren Land (At The Time Of Entry Into Dar-Al Islam)

The argument that establishes that a land, which was a barren and uncultivable at the time of its conquest, forms part of the spoils of war has been stated in the tradition. Anfal (spoils of war) means a collection of all those items and properties in respect of which the Shari’ah has ruled as belonging to the state by the dictum of Allah in the holy Book.

“They ask thee (O Muhammad) of the spoils of war, say: ‘‘The spoils of war belong to Allah and the Messenger, so keep your duty to Allah and adjust the matter of your difference and obey Allah and His Messenger if you are (true) believers’’. (8:1).

In reference to the occasion of the revelation of this verse ash-Shaykh at-Tusi has related (a tradition) in his book at-Tahzib that some people asked the Messenger of Allah to give them something out of the spoils. It was at that time that this verse was revealed affirming the principle of the state ownership for the spoils of war (anfal) and rejecting their distribution among the individuals on the basis of private ownership.

The Prophet’s control over the spoils (of war) was by virtue of his being the head of the state that the spoils belong to and makes the ownership of the spoils an uninterrupted ownership which extends to the office of the Imam ever after him, as stated in a tradition from ‘Ali (a.s.). He said: ‘‘to the one who is charged with the affairs of the Muslims belong the spoils, which belonged to the Messenger of Allah. Allah the Mighty and Glorious, has said: They ask thee of the spoils say: ‘The spoils belong to Allah and the Messenger’ and what belongs to Allah and His Messenger belongs to the Imam ’’.

So if the spoils were for the Prophet as ordained in the above quoted verse of the holy Qur’an, and since barren land constituted part of the spoils, it is natural for it to be included in the orbit of state ownership. It is on this basis that Imam as-Sadiq (a.s.) was reported to have said in connection with the determination the ownership by the state (Imam): All barren lands, each and every one of them belongs to Him. This he has stated on the basis of the dictum of Allah the High: “They ask thee of the spoils (that you give something out of them) say ‘spoils belong to Allah and the Messenger”.

There are some other evidences that indicate that barren lands fall under the state ownership. There is a tradition in which the Prophet has said: “No person has any title to the barren land except with whom the Imam is pleased’’. Abu Hanifah has inferred from this that no person is entitled to reclaim or appropriate any barren land without the permission of the Imam and this is in complete agreement with the fact that barren land belongs to the Imam, or in other words ownership by the state6.

There is also a tradition on this point, which is given in the Kitab Al-Amwal by Abu ‘Ubaydah, reported by Ibn Tawus from his father that the Messenger of Allah (S) said: ‘‘Land belongs to Allah and His Messenger thereafter it belongs to you’’. This nass (text of the tradition) gives the ruling in respect of ‘adi land that its ownership belongs to the Messenger of Allah and the other sentence ‘thereafter it belongs to you’ affirms the right following its reclamation. We will discuss that later.

It is stated in the Kitab Al-Amwal that “Every such land is an ‘adi land that had men dwelling on it in the distant past, and was later abandoned. Such a land is ruled to belong to the Imam similar to the case of a barren land, which no man has revived by reclamation, or land that does not belong to a Muslim, or to a person (from a group) with whom there is a treaty made’’.

Also in a tradition given in Kitab Al-Amwal it is stated on the authority of Ibn ‘Abbas that ‘‘When the Messenger of Allah arrived at Medina, all the land to which no water reached was made over to him to do with it as he wished’’. This text of the tradition not only affirms the principle of the state ownership of every barren land that was far from water supply. It also affirms the application of this principle during the period of the prophet’s rule. So different two legal forms of ownership were applied to cultivable lands and barren lands acquired by conquest. Cultivable lands came under public (common) ownership while barren land under state ownership.

The Resulting Difference Between These Two Forms Of Ownership

Although these two forms of ownership - common ownership and the state ownership – are similar as to their social significance, they express two different legal forms. In one, the owner is the nation, while in the other the owner is the office of the one who conducts the government of the nation on behalf of Allah.

The difference is reflected in the way the revenues derived under each form of ownership is used and the part they play in the contribution towards development of the Islamic community. In respect of the benefits derived from the land and wealth under common ownership of the nation, the Wali’ Al-Amr is required to employ them as contribution towards fulfilling the collective needs of the nation and for the general well-being of the nation as a whole. These include construction of hospitals, improving and expanding medical treatment facilities, provision of education and other similar general social establishments that are of service to the whole nation.

It is not lawful to make use of gains from assets under common ownership for the benefit of a particular segment of the society, unless its benefit is connected with the benefit of the society as a whole, such that the whole society directly benefits. For example, it is not permissible to apply the revenue for the benefit of the poor, unless it happens to be in the interest and the need of the nation such as when this helps improve the social balance.

As for properties that belong to the state, the revenues can be employed for general benefits of the whole of the nation or alternatively for the benefit of a particular purpose like the creation of funds for those in need.

The Right Of Reclamation Of Barren Lands

Just as cultivable lands and barren lands differ in respect of the mode of ownership, they also differ with respect to the rights to ownership by an individual following reclamation efforts. The Shari’ah does not confer upon an individual any special right of ownership in respect of a land that was already in a cultivable state at the time of conquest, even if the individual has restored it for cultivation (meaning that it was originally not in a cultivable state, as we have already learnt).

But the Shari’ah has permitted a person to invest his efforts to reclaim and cultivate the land if it was a barren land at the time of conquest. The Shari’ah has conferred specific right to the individuals in respect of such land on the basis of their having expended efforts in way of its restoration and cultivation. From among the traditions, which establish this fact, there is a tradition from the Ahlul Bayt that: “He who reclaims a land, that land belongs to him. He has a greater right and claim to it”.

A tradition cited in Sahih al-Bukhari reported by ‘Aishah mentions that the Prophet said: “He who cultivated a land, which belongs to no one has a greater right and claim to it”.

On this basis, we learn that the land under common ownership according to the Shari’ah is incompatible with an individual’s special right in it. So an individual does not acquire a special right in respect of a land under common ownership, irrespective of the efforts he may have invested in order to revive and restore it for cultivation, after it had become unproductive by neglect. But in the case of a land under the state ownership, it is compatible with the individuals having that special right.

The efforts to rehabilitate infertile and barren lands for cultivation are the main source of the special right in respect of state-owned lands. Therefore it is the performance of these work or their preparatory operations that confer upon the individual a special right in these lands. The Shari’ah in general does not acknowledge a private right apart from this7.

The important juristic question in respect of this matter is connected with the nature of the right an individual acquires by his reclamation works. So when a person works on a wasteland and restores it for cultivation, the question is what type of right does he thereby acquire, in respect of the land?

Many jurists are of the view that the right, which the individual earns by his reclamation works on the land, is the transfer of the possession of the land to his private ownership. Thus the land is taken out from the domain of ownership by the state and is placed in the orbit of private ownership. The individual becomes the owner of land which he has reclaimed as a result of the labour he has expended to revive it.

However there is another juristic view that is more in harmony with the legislative texts. The view is that that the rehabilitation of the land does not change the mode of ownership, and that the land continues to remain the property of the Imam or the Imamate (the office of the Imam). Nor does it permit an individual to acquire possession of its proprietary right even if he had restored it for cultivation.

An individual, by carrying out rehabilitation, does acquire a right in respect of the land. But it is not at the level of ownership. Restoration of the land for cultivation vests in him the right of use of the land and to benefit from it. The right also prevents others - who did not participate with him in the work and labour for its rehabilitation - from interfering with him in the affairs of the land and protects him from any acts of seizure of the land from him so long as he fulfills his obligations in respect of the land.

However this degree of right does not excuse him from payment of his dues to the office of Imamate as the legal holder of the proprietary right of the land. The Imam has a right to impose upon him an amount of rent or as mentioned in the tradition, an amount in proportion to the profit he reaps from the use of the land he had reclaimed.

The great jurist Ash-Shaykh Muhammad ibn al-Hasan at-Tusi, has adopted this view in his discussions of jihad in his book al-Mabsut. He mentions therein: Indeed the individual does not acquire proprietary right of the land by virtue of his reclamation efforts. He only owns the benefits derived from his efforts, on the condition that he pays to the Imam the dues imposed upon him for the use of the land. Here is the text of the relevant sentence in his own words:

As for dead lands; they do not come under the heading of the war booty (ghanimah). They exclusively belong to the Imam. Any Muslim who reclaims such a land shall have the right on it, and to the Imam will belong its tax.

We find precisely this view in the book Bulghatul faqih by the profound jurist research scholar, as-Sayyid Muhammad Bahrul-‘Ulum. He too leaned towards denying of the right of possession by reclamation in the form of ownership right. The Imam will have the right to the tax on the land as agreed upon during the tenancy agreement and a similar fee in the absence of an agreement.

This does not contradict the traditions that ascribe the ownership of the land to the person who reclaimed it. In the traditions it is said: “He who reclaims the land, the land belongs to him”. This is just like the conventional words of the landlords telling the farmers by way of incentive when they urge them to reclaim and make their landed estate prosperous that he who cultivates it, drills the rivers on it or dredges its irrigational canals, the land will become his.

This means that such a person will have a greater right to it than any other person and that he is accorded priority over others as to the use the land. It does not imply repudiation of the ownership of the land by the landlord or his depriving himself of the ownership. The portion that goes to the landlords demonstrates their position as the undeniable beneficial owner of the land even if the property is annexed to the farmers on the grant of license or general permission.

The view which ash-Shaykh at-Tusi and jurist Bahrul-‘Ulum have avowed, is supported by a number of established traditions - through a proper chain of narrations - from the Imams of the Ahlul Bayt, ‘Ali and his descendants (a.s.). In some of the narrations it is recorded:

“Anyone from the believers who reclaims a land, the land becomes his and he shall pay the rent’. And in some it is stated: ‘anyone from among the Muslims reclaims the land, let him till and let him pay the tax of it to the Imam. To him belongs what he consumes therefrom”8 .

In light of these traditions, the land does not become the private property of the man who reclaims it. If it had become his private property it would not have been proper to require him to pay the land rent to the state. Since he has to pay the land rent, it means that the proprietorship of the land remains that with the Imam. The individual enjoys the right of holding the land in his possession, which empowers him to avail of its benefits and to prevent others from seizing it from him. For that privilege, the Imam will impose the rent on him.

This juristic opinion gives a true sense of the term “ownership by the Imam” that allows the Imam the right of imposing rent on the state-owned properties. This view is held not only by the jurists from school of Ahlul Bayt such as ash-Shaykh at-Tusi, rather its seeds and its many forms are also present in various other Islamic juristic schools.

Al-Mawardi mentions from Abu Hanifah and Abu Yusuf: “If an individual reclaims a barren land and irrigates it with ‘taxed water’, that land will become a taxed land and the state will have the right to impose tax upon it”. By the term ‘taxed water’ both of them meant the rivers conquered by force such as Tigris (Dijlah) and Euphrates (Furat) and the Nile. It is stated in the Kitab Al-Amwal of Abu ‘Ubayd, Abu Hanifah used to say, ‘‘Kharaj (taxed) land is every land which is irrigated.’’

As for Muhammad ibn al-Hasan ash-Shaybani, he too on his part has acknowledged the principle of tax on the barren lands that are reclaimed. But he has chosen details other than those chosen by Abu Hanifah and Abu Yusuf mentioned herein before. He says: “If the reclaimed land happens to be situated on the banks of the rivers dug by the non-Arabs then it is a taxed land. But if it is on the banks of the rivers which Allah the Supreme and Mighty has caused to flow, then it is a tithe land’’.

We find in one form or another, a tendency in various juristic writings towards imposing tax on reclaimed lands, but it is not found in Islamic law anything which could be considered a basis to deny the right to impose tax on a reclaimed land, save the exceptions the Imam availed of from the “traditions of dispensation” (Akhbaarut-tahlil).

But when we cite an excerpt from the jurist ash-Shaykh at-Tusi concerning the principle of the Imam’s ownership with this meaning - which allows the Imam to impose tasq on whatever land that is reclaimed - we are examining the position only at the theoretical level, since it is on the theoretical aspects that we find the basis to infer this principle from the legislative texts. This principle was not adhered to by the Muslims in practice. Rather it was commended in the sphere of practice and was dispensed with by way of exception, in case of some person and during certain period as is indicated by the traditions of dispensation. The suspension of this principle in practice or during the time of the holy Prophet cannot be considered a proof that it is theoretically flawed.

It is the right of the Prophet to exempt or excuse any person from the payment of the tasq. His exercise of this right does not mean that an Imam who comes after him is not permitted to act on this principle or to apply the principle when the circumstances that had prevented its application no longer exist. Similarly, the texts which urge dispensation with the implementation of this principle, in respect of certain persons - by way of exception - do not disallow considering it a rule that can be adopted beyond the exceptional cases described in the traditions of dispensation (Akhbaarut-tahlil).

Since in this study we endeavour to learn the theoretical aspects of Islamic economics, it is our duty to include this principle in our study, as there is an Islamic basis for this at the theoretical level. As such, it is part of the complete form that represents the Islamic theory in the field, which we are studying irrespective of whether it was implemented in practice or was placed on the shelves because of circumstances or for reasons of expediency.

In light of what we have already stated, the difference between the farmer who works on the plots of land under common ownership and the farmer who tills a land under state ownership, is the extent of their relationship with the land. But both do not possess proprietary right over the respective lands. The farmer who cultivates the common property is only a tenant as affirmed by the jurist research scholar al-Isfahani in his commentary of al-Makasib. The Imam holds the right to take away this land from him and give it to someone else when the period of his lease or contract of tenancy expires. The farmer working on the state-owned land enjoys the right vested in him to derive benefits from it and to prevent others from taking it away from him so long as he fulfills his obligation towards maintaining it in good condition for cultivation.

Every individual is allowed to freely to carry out reclamation works on a land under common ownership without first obtaining a licence from the head of the state (Wali’ Al-Amr). The abovementioned texts have given unconditional permission for reclamation to all. So this permission is effectual so long as the state does not see, as under certain circumstances, the expediency for its prohibition.

There are however some jurists who hold the opinion that reclamation is not valid and that it confers no right unless it is carried out with the permission and license obtained from the Wali’ Al-Amr (head of the state). They argue that the permission issued by the Prophet as in his dictum - he who reclaims a land has a greater claim and title to have it - is not sufficient because this general permission was issued by him as a head of the Islamic state and not in his capacity as a Prophet. Thus its effectuality does not extend to all times but ends with the ending of his rule.

Anyway, undoubtedly the head of the state (Wali’ Al-Amr) possesses the right to prevent the reclamation of some state-owned lands or restrict the amount of land that is allowed for reclamation, if that is required in the public interest.

We may now summarize following points from the prescriptions in respect of the reclamation of wastelands:

First, it is deemed a state property.

Second, reclamation by an individual is in principle valid unless such work is prohibited by the authority (Wali’ Al-Amr).

Third, when an individual reclaims the land that belongs to the state, he acquires a right to use and benefit from the land and the right of protection from interference by others that would deprive his access and use of the land. However these do not make the land his private property.

Fourth, the Imam shall levy a tax on him because the land is the Imam’s property by permanent proprietary right (ruqbatul-ard). He shall impose this tax as a trust for the benefit of the public good and for maintaining the social balance. The Imam also shall have the right to exempt anyone from the payment of the tax under specific circumstances. We shall find the consideration for the exceptions in this respect from the practice of the Prophet.

Lands That Were Naturally Cultivable At The Time Of Conquest

Many jurists hold the opinion that naturally cultivable lands - lands that by nature were already in the state cultivable state at the time of the conquest, like forests, etc. - are under the same form of ownership as the wastelands as mentioned earlier. They hold that these lands are the property of the Imam. In forming this opinion, they rely on the traditions transmitted from the Imams in which it is stated that ‘every land which has no owner belongs to the Imam’.

This tradition gives to the Imam ownership of every land that is not under the ownership of anyone such as the forests. A land has no owner except by reason of its cultivation and the forests are cultivated by nature without human intervention. In that respect, the Shari’ah holds that it has no owner. Consequently it is subject to the principle of the state ownership.

Our observation on this opinion is that the application of the principle of the state ownership (or by the Imam) to forests and lands with naturally grown vegetation (because of the nature of their soil) will be valid only if they were annexed to the Dar ul-Islam without war, because they are not owned by anyone. But as for similar lands that were conquered by force and seized from the hands of the non-Muslims, these are the common property of the Muslims. They come under the legislative texts, which give the Muslims the ownership of the land conquered by force.

Thus if the forests come under the orbit of the common ownership in accordance with these texts, they will become a land which has an owner, which is the whole nation. There will therefore be no rationale to include it in the category of a land without owner and thus deem it – according to the text – as belonging to the Imam.

Generalizing further, the same rules we apply to lands that were rendered cultivable by human toil and labour. We should also apply them to lands with naturally grown vegetation and forests - conquered by force - at the time of conquest9.

Lands That Became Muslim Land By Peaceful Call To Islam

(Ad-Da‘Wah)

Lands that became Muslim land by peaceful call to Islam (through missionary activities) are all those lands whose people responded to the call to Islam without armed conflicts, like the city of Medina, Indonesia and a number of other places all over the Islamic world. Similar to lands that became Muslim lands by conquest, these lands are divided into lands that were made cultivable by the inhabitants and whose owners accepted Islam willingly or lands with naturally grown vegetation like the forests, and those which were barren lands at the time they were annexed to the Islamic nation.

As the barren lands of the countries whose inhabitant became Muslim were like those acquired by conquest, the principle of state ownership is applied to them. All rules applicable to conquered lands also apply to these lands because the barren lands are generally considered anfal (spoils of war) and anfal are the property of the state.

Likewise, lands that are naturally cultivable and became annexed to the nation of Islam by peaceful acceptance of Islam are also state property, under the juristic principle holding that ‘every land which has no owner is part of anfal’. There is a difference between these two types of land, the wasteland and the cultivable land even though both are state properties. An individual can acquire a specific right in respect of the barren land by way of reclamation. The same rules are applied to it as those to conquered land. The legislative details are already given in connection with the conquered wastelands.

As for lands that are naturally fertile and cultivable when it joined the Dar Al-Islam, an individual has no means to acquire a right and title to it on the ground of its reclamation, since they were by nature already cultivable. The only thing open to him is to benefit from the use of such lands. When a person makes use of such land and benefits from it, then he should not be deprived of the use and benefits by according preference to another person as long as he was the first to cultivate the land. Another individual will be allowed to benefit from the use of the land, if his activities do not interfere with productive activities of the first person.

As for a country whose inhabitants have voluntarily embraced Islam, its cultivable lands shall belong to their respective owners. Islam confers upon a person who embraces Islam voluntarily all rights that he enjoyed before he embraced Islam, in respect of lands and other properties. They shall enjoy the right to retain and own their lands as their private properties and no tax will be levied on them. They shall have the properties exclusively in the same way they did before Islam10.

The Land Of Sulh (Treaty Land)

These are lands dominated by Muslims and the inhabitants neither embraced Islam nor staged armed resistance to the call of Islam. They remained with their religion and chose to live peacefully under the protection and rule of the Islamic state. Such lands are termed as land of peace by agreement or ‘treaty land’ in juristic usage. The terms as agreed in the treaty shall apply to these lands.

If the text of the treaty term stipulates that the lands belong to its inhabitants, then the land will be treated accordingly as their property. The Muslim community shall have no claim or entitlement to the lands. If it stipulated in treaty terms that the lands would belong to the Muslim community, it will become binding and the land will be subject to the principle of the common ownership and the kharaj (tax) shall be applicable.

It shall not be legitimate to deviate from the terms agreed upon under the treaty. There is a tradition in the Kitab Al-Amwal that the Prophet said: “When you are in a war with a certain group, and they are prepared to make peace with you with their wealth (amwal) in order to save their lives and the lives of their children, then do not take more than what has been due, since the excess (amount) is unlawful for you”.

It is mentioned in Sunan of Abu Dawud that the Prophet said: “Behold, whoever wrongs a person (from the community that you have treaty with them) or mutilate or burden him with a task beyond his capability or take something from him without his consent, then, on the Day of Judgment I shall argue in favour of him”.

The wastelands in a country that came under the rule of the Islamic state via a treaty shall fall under state ownership similar to the wastelands acquired by conquest and the wastelands in countries whose people voluntarily accept Islam. Similarly, the forest and such other lands of the country that came under Islamic rule via treaty shall also be state-owned, unless there are specific terms regarding them in the treaty. In such situation, as instructed by the Prophet, the treaty terms will apply to them.

Other Lands That Belong To The State

We will find other types of land subject to the application of the principle of state ownership, such as lands that the inhabitants had surrendered to the Muslims without any military encounter. These lands come under the category of anfal, and belong to the office of the Prophet and Imams, similar to another version as has been enjoined in the holy Qur’an by Allah, the High and Mighty:

“Whatever Allah gave as accessions to His Messenger from them, you urged not any horse or riding camel for the sake thereof but Allah gives His Messenger Lordship over whom He wills, Allah is able to do all things”. (59:6).

Lands whose inhabitants have perished and had become extinct also belong to the state according to the tradition reported by Hammad ibn ‘Isa from Imam Musa ibn Ja‘far (a.s.): “Anfal belong to the Imam, and anfal is every land whose people have perished (become extinct)…”

It is similar with newly found land in the Dar Al-Islam. For example, an island is formed in the sea or a stream. It also will be included in the ownership of the state by the application of the juristic rule that “every land which is owner-less belongs to the Imam”.

Limitations Of Private Authority Over Lands

From the details given previously we can deduce that the entitlement of an individual to a piece of land and his personal right is established on the ground of one of these three factors:

1) Reclamation of a piece of state land.
2) Entry of the land’s inhabitants into the Islamic nation by voluntary acceptance of Islam.
3) The land becoming part of the Dar Al-Islam by a peace treaty stipulating the ownership of the land to the parties of the treaty.

However, the first ground differs from the other two as to the form of relationship that ensues from it or the nature of title the individual acquires over the land. As for the first ground - individual reclamation of a piece of a state land - the land shall not be classified as private property. It does not lead to stripping the state off the ownership or preventing the Imam from imposing a land tax or rental on the individual who cultivates the land for his use of the land.

For having worked a piece of land and making it cultivable, a person will only be entitled to use the land and benefit from the crops he grows. He also enjoys the protection from any interference with his works and from competing attempts for the title by others, as stated earlier.

As for the other two bases, they confer upon a Muslim individual ownership of the land or benefits derived from ownership of the land and shall come to be classified under the category of private ownership. Private possession of a land by an individual - whether it is on the basis of right (to use) or on the basis of ownership - cannot be an absolute and permanent private possession. Instead, it is the right or authorized possession conditional upon the person properly discharging his responsibility towards the land.

Thus if he neglects his responsibility in this respect - in a manner as described in the traditions that we will quote shortly – his title to the land shall become void. He would then have no exclusive right to continue the possession of the land and prevent others from working the land and enjoying its benefits. By this, the concept that ownership is a social function receives its most cogent explanation on the rights of the individuals in respect of lands. The evidence for this from the perspective of the Shari’ah is present in a number of legislative texts.

It is stated in the tradition reported by Ahmad ibn Muhammad ibn Abi Nasr on the authority of Imam ‘Ali ibn Musa ar-Ridha’ (a.s.) that the Imam said: “He who embraced Islam out of his own free will, land will be allowed to remain in his possession and tithe will be obtained from him in respect of whatsoever of it is cultivated, if it is irrigated by rain or rivers, and if watered by manual labour half of the tithe and that the Imam will take from him whatsoever of it he has not cultivated and will give it to him who will cultivate it. The land will remain a property of the Muslims and the lessor will have to pay out of their shares the tithe or half of the tithe.’’

In an authentic tradition reported by Mu‘awiyah ibn Wahb, it is stated that Imam Ja‘far (a.s.) said: “A man who finds a barren and uncultivable land and dredges canal and cultivate it, he will have to pay sadaqah (zakat) in respect of the land. However if it belonged to a man before him who had abandoned it and left it and wasted it and came afterward demanding it, (he has no right on it) for the land belongs to Allah and to him who cultivates it.”

There is an authentic tradition reported by al-Kabuli on the authority of the Amirul-Mu’mineen ‘Ali (a.s.) that “any Muslim who reclaims a barren land should be allowed to cultivate it and pay land tax on it to the Imam of my Ahlul Bayt. What the land yields shall belong to him, but if he leaves it and wastes it and any other Muslim takes it, cultivate and reclaims it, that person shall have greater claim to the land than the one who neglected it. This other man has to pay land tax in respect of it to the Imam.”11

In light of these texts we learn that the right that gives a person an entitlement to the possession of the land so as to prevent competing use by others is forfeited upon the land becoming wasteland out of his neglect. Thereafter he is not permitted to prevent others from gaining control over it and using the land as long as he neglects it.

There is no difference in that respect between the individual’s having acquired the title over the land by virtue of his having invested labour to revive it and by other means or reason. He will not be allowed to have an exclusive control and possession of the land after it has become a wasteland because of neglect, irrespective of the means by which he initially acquired possession.

Now if the land a person had in his possession - which he neglected until it becomes unproductive and uncultivable - happens to be a state land (under the Imam’s office), that land after its becoming a wasteland has become a land free to all (mubah) to work on. The same rules applicable to all the barren lands, which belong to the state, are applied to such land also. There is room for fresh reclamation efforts, subject to the same rules applicable to its first reclamation.

Ash-Shahid ath-Thani in his al-Masalik elucidates this meaning. He writes: “This land, that is the land the individual had reclaimed and which afterward had become a wasteland, was originally a free land open to all to make use of it (mubah) when it is neglected, it comes back to its original status quo and becomes mubah (free to all) for reclamation, and it cultivation was the cause for acquisition of the title to its possession. When the cause ceases to operate the effect ceases’’.

He means to convey thereby that the right and entitlement to the land, which the individual acquires is the outcome of his reclamation efforts, hence its effect (his right). When the land ceases to show signs of life, his right to the possession ends.12

Al-Muhaqqiq ath-Thani has mentioned in his Jami‘ul-Maqasid that the loss of exclusive title to the land by its owner (who first reclaimed it) after its becoming a wasteland and the legality of another person taking over and acquiring exclusive title to it is a well-known and accepted view among the ashab (Prophet’s companions). This view prevailed in the pronouncement of the juridical opinion in that respect.

But if the neglected land happens to be under the category of private ownership (such as a land whose owner had voluntarily embraced Islam) its ownership is not invalidated on account of his neglect. The land in that case, in the opinion of Ibnu ’l-Barraj, Ibn Hamzah and others, is returned to become the property of the Muslims and is included in the category of properties under common ownership.

From this we learn that the exclusive appropriation of the land whether by way of right (to use) or as property (owned) is restricted and conditioned to the individual’s social duty in respect of the land. So if the individual neglects his duty towards the land and cease to productively use it such that it becomes unproductive and uncultivable, his connection with the land is severed and his entitlement to the land ends. The land returns to be the state property. If it was initially wasteland - in respect of the lands in a country the inhabitants of which had voluntarily embraced Islam - it becomes the common property of Muslims.

The General Islamic Outlook In Relation To Land

In light of the diverse rules that Islam has stipulated concerning land and our familiarity with their details, we can deduce the general Islamic viewpoint in respect of land and the direction adopted under Islamic governance as pursued by the Prophet or his lawful successors in practice. When we later attempt to present the legal rules of Islam, which are connected with other natural assets and factors of production in their entirety, we can therefore refer to this general Islamic outlook concerning land. Based on that, we may adopt a more universal and broader outlook in formulating the doctrinal foundation for the Islamic principles on distribution of the factors of production.

To facilitate the understanding of the Islamic standpoint concerning land in the economic dimension - as well as isolating it from all considerations that are of political nature – it would be better that we first determine the general Islamic outlook with an illustration. This will help us view its economic content free from its political bearings.

Then let us suppose that a group of Muslims decides to settle in a region, which is still a virgin land. They establish in that region an Islamic community and set up relationships therein based on Islamic teachings. Let us imagine that its lawful ruler, the Prophet or his successor undertakes the administration of these relations in that society with all its ideological, cultural and legal virtues and values entirely according to Islamic teachings. Now, in what way shall the standpoint of the ruler and the society vis-a-vis the land and its mode of ownership be organised?

The reply to this will be readily available in light of the details already given. The land - which in our illustration we have decreed to become the homeland of the Islamic community, and where a heavenly civilization will grow - we have assumed to be a virgin land, untouched before by human. There had not been any human intervention yet or in other word they are the pioneer group on that land.

It is natural that different parts of the land are made up of two different types. The fertile part in a condition conducive to life and agriculture - with water, sunshine and good soil. The other type comprises the uncultivable part – in a condition not conducive to agriculture. They need human intervention to improve the conditions. These lands are termed wasteland in the juridical sense.

The naturally fertile land thereof shall be, as we have been told before, the property of the state or in other words the property of the Prophet or his lawful successors in their capacity of the head of state according to the legislative and juridical texts. It is mentioned in At-Tadhkirah by al-‘Allamah al-Hilli that there is a consensus among the scholars in that respect. Likewise, the wasteland is also property of the state as we have already learnt. Even ash-Shaykh al-Imam al-Mujaddad al-Ansari has mentioned in his al-Makasib that the texts in respect of this are numerous. It is even said they are numerous to the extent of being tawatur.

Well, then Islam applies to the whole land – as a land in its natural state - the principle of the ownership by the Imam and subsequently specifies common ownership. In light of this we are able to understand the traditions transmitted on the authority of the Ahlul Bayt (Imams) with chains of authentic narrations, asserting that the entire land is the property of the Imam. When they affirmed the ownership by the Imam, they looked at the natural state of the land as mentioned earlier.13

Let us look at the types of claim on land that Islam has permitted for the individuals of the community in our illustration. In this situation, we should eliminate claims based on mere possession or control, because we do not find a single authentic text that affirms such a basis in Shari’ah. The only thing we learned is that the claim, which they justify by the Shari’ah is the claim arising from reclamation of the land, that is an individual’s labour on a barren land to infuse life into it.

The person who invests his labour in the rehabilitation of a land is considered be entitled to a right in it. Nevertheless, it is not a ground for permanent ownership of the land as a private property. It only results in the right and entitlement by the individual, on the basis of priority in enjoying its use and benefits, over other individuals on the ground of the labours and efforts he has spent on its reclamation. The right of proprietorship remains with the Imam, who also holds the right to impose tax on the person reclaiming the land, according to the juridical text written by the great jurist authority, ash-Shaykh Muhammad al-Hasan at-Tusi in the chapter “Jihad” of his book al-Mabsut: “As for dead lands they do not constitute part of the ghanimah (booty). They belong to the Imam. The one who reclaims them, will have the priority of right to his making use of them and the tax thereon will belong to the Imam”. We have quoted this text earlier.

The right and entitlement of the individual to the land - that his reclamation efforts confer upon him - continues so long as he spends labour to maintain the land. When his labour ceases and the land needs fresh efforts to restore it to conditions suitable for cultivation, the individual loses his right to it. He needs to continuously spend the necessary labour and efforts to maintain the land in cultivable condition. When he neglects the land such that it becomes infertile and uncultivable, his right ceases.

Now we are able to fully grasp and determine the general Islamic outlook on land. Land is by its nature the property of the Imam and no individual possesses the right to its permanent ownership or any right to an individual appropriation, except on the basis of the labour a person spends on its labour and cultivation. This right that the individual earns as a result of spending his labour on rendering it cultivable and growing crops on it, does not impair the right of the Imam to impose tax on the reclaimed land so the whole community may share in the benefits derived from it. Further, this does not come in conflict with the Imam’s right to waive this tax occasionally or under certain exceptional circumstances as stated in traditions of tahlil.

This is the Islamic outlook with regard to land as it appears to us, before bringing in the political factor into this sphere. Indeed this outlook is capable of accommodating the views of the proponents of private ownership of land, as well as their opponents. Land ownership is one of the social issues that had played an important role in human thought because of its significance, as a phenomenon that has existed in the life of man for thousands of years.

A more recent presumption is that the genesis of this phenomenon is the result of the history of man itself. It became widespread after his discovery of agriculture and his becoming dependent upon land for his life. When the farmer needed to settle in a particular land for a period of time - because the harvest from land required time - it was only natural for him to bind himself within a certain boundary or to a specific area to perform his labour and set up thereon his place of retreat and abode close to his farm in order to be able to keep watch over it and to protect it.

Eventually the farmer found himself tied strongly to a particular area of the land. He was bound to it by a number of factors - each eventually springing from the labour that he had expanded on the land and the hard work he put in - by which he had developed close attachment to its soil and all elements on it. It was as a result of this that the idea of appropriation (of land) was born. On one hand it reflected this bond, whereby the farmer found the labour he had spent had blended with the land. On the other hand, the idea of appropriation resulted in the division of the land on the basis of sufficiency such that every individual keeps to himself the land that he toils upon and sufficiency was established by the degree of his ability to cultivate. In this connection, it is presumed that the historical origin of this private right to a land is labour, which over time has led to ownership.

Opponents Of Private Ownership Over Land

The opponents of private ownership over land often stir up doubts directed at the assertion of its historical occurrence and its long historical roots. At other times they go beyond these. They treat the very idea of the ownership and personal title to the land as a bolt out of the blue in relation to the principle of social justice.

As for the imputation of the occurrence of ownership and its historical authority, it is mostly ascribed to the factors of force and domination. They hold that historically, these two were the major factors that led to the entirely unjust distribution of land and the conferment of title of rights to a particular group of individuals.

Now, if it is force, domination and factors related to violence that constitute the ‘legitimacy’ and the historical authority for ownership of land and rights of title to its ownership - as human history has witnessed - then it is natural that these rights are put to an end and that the ownership of land as documented in history be regarded a type of robbery.

We do not deny the elements of force and usurpation nor the role they played in history. But these factors do not explain the emergence of land ownership and the related entitlements as documented in history. For you to grab a land by force and violence, it is necessary that there be one from whom you seize the land from, drive him out and make the land yours. This presupposes that the land subjected to such seizure by force and violence had come into the possession of a person or persons before that and it became his or theirs.

When we intend to explain this antecedent right for the operation of forcible seizure, it would be necessary for us to leave aside the description of force and violence so we could seek the basis for the mode of relationship established between the land and its owner. The person - who we suppose grabs the land by force – in general, could not have been a landless, outcast person without shelter. It is more probable that he is a person capable of working on an area of land and rendering it fruitful. His abilities and means gradually would have grown and he would have planned to grab new lands by violence. Then, there was productive work and right to the title established on the basis of labour and cultivation, prior to force and violence.

The closest for our acceptance is when we visualize a primitive tribe settling in a land area and began an agriculture-based life. Each individual would occupy a particular land area according to his means and ability, and work the land to render it productive and enjoy its harvest. The division (of the land by the respective areas) would start as a separation of labour as a factor, since it is not possible for all the farmers to be (common) stakeholders of every inch of the land.

From this division, ‘private’ rights and entitlements would have emerged as the individuals have staked claims to the land that benefited from their respective labour and hard work. It would have been after this that elements of force and violence would have appeared, when the mightier and more powerful ones would have taken to raiding the lands of others and grabbing the farms from the weaker ones.

By this we do not intend to justify private ownership and entitlements with respect to land in the manner they historically developed. Our aim is to highlight and support the statement that reclamation of land is presumably the sole primary ground that is recognized by the ancient communities as the source of an individual’s entitlement to the land that he worked and conditioned for agriculture, and cultivated crops on. All other grounds are secondary factors brought about by the social conditions and complexities at odd with the indigenous form and instinctive thoughts of the primitive communities.

The primary ground gradually lost its historical significance in the course of the development of these secondary factors and passion prevailed over nature such that the history of the private ownership of the land was filled with various types of injustice and domination by certain groups. Land became scarce for the masses as much as it became abundant for the privileged ones. Islam restored the original consideration for establishing the ownership of land as it made reclamation the sole source to gain entitlement, and put an end to its acquisition on any other grounds. In this way, Islam revived the practice in nature-based living, which the modern man of the industrial society had almost abolished.

This is in relation to the assertion about land ownership based on its historical background. But there is another assertion that is more compelling and significant. It is the very idea that ownership and title to its private ownership right – both in particular and in general - has been affirmed by some of the modern doctrinal trends, like collective or communal farming (whereby farmlands are aggregated based on collectivism). And what we hear generally in this connection is this: “Truly land is a natural wealth. Man has not manufactured it but is one of the gifts of God so it is not right that one man enjoys its use and benefit over others”.

However, whatever may be said in this connection, the Islamic form we have presented at the beginning of this topic will prevail over opposing assertions for we had always held the position that land - viewed by its nature as it existed when this gift was delivered to man by Allah Almighty - was not a property of any individual, nor had anyone any title to its ownership. It was instead the property of the Imam in his capacity as holder of the office of Imamate and not in his personal capacity.

Therefore, according to the Islamic economic theory land does not cease to be the property of the Imam. And land does not become the property of any individual through forcible seizure, and for that matter not even through reclamation. Reclamation is considered only as a basis for the individual’s right to use the land. It is only in the sense that when a man hastened to proceed in a legitimate way to restore a land to make it cultivable by expending his labour and efforts, it would be unjust to treat him - as regards his entitlement and right to the land - on the same level as claims by others who made no contribution. His claim should thus be accorded priority over that by any other.

Islam confers upon the person who works the land a right to use it as his own, rather than to anyone other than him. This side of the theory allows the Imam to levy a tax on it for the collective benefit of humanity as a share of gains earned from the land. While in Islam the right to possess and hold land is established on the basis of the labour that an individual expends on the land, this right is in essence lost whenever the land becomes uncultivable and requires more effort to maintain it in cultivable condition. If the individual refrains from restoring it to cultivable condition and neglects it till it becomes a wasteland, his relationship with the land under these circumstances is cut off on the account that the legal justification by which he drew his right and title to it having ceased to exist.

The Political Factor In Land Ownership

Now that we have discussed the Islamic economic theory regarding land, it is incumbent upon us to bring to light the political component that is latent in the general Islamic outlook. Islam has recognized the political dimension of the act of reclaiming land, which by its nature is an economic act. The political element that is embodied in the land and gives the person who reclaims it a right is the manner in which the land came into the possession of the Islamic nation.

In fact the land’s entry into the Islamic nation and its contribution to the life of the Muslim community and its material prosperity is at times caused by an economic factor. It is the efforts expended by the individual on the reclamation of the land - which comes into the possession of Islam - in order to infuse life into it that enable it to contribute in economic production. Likewise, at some other times, it is occasioned by a political factor. It is that action which results in the addition of a fertile and productive land to the Islamic nation. Each of these two actions has been accorded due consideration in Islam.

The actions that result in the inclusion of a fertile and productive land into the possession of the Islamic nation are of two types. At times the land is conquered by jihad waged by the Muslim army and at other times, by the voluntary surrender of its people. If it took place as the result of conquest, then the political action here will be considered the act of the whole nation and not that of a particular individual. The whole nation for that reason becomes the owner of the land and on that account the principle of the public ownership will be applicable.

But if the inclusion of a cultivable land took effect by way of voluntary surrender and acceptance of Islam by its owners, then the political action here was the action of individuals and not that of the nation. Because of this Islam recognizes the right of the individuals in respect of cultivated lands, which they surrender. They are thus allowed the right to retain possession of the lands.

We see that while political action plays a part in the Islamic general outlook in relation to land, it does not change the character of the land as a public asset. If the action is in the nature of a collective action that involves the whole nation in its various aspects - such as a war - the land gained from that action becomes a common asset of the nation.

Common ownership of the nation is in essence similar in its social significance with state ownership. However state ownership is broader in its scope. As for assets under common ownership, its benefits in any way are exclusive for the nation. It is not legitimate for the benefits to be channeled for any purpose other than for the common good of the nation. In case of land under state ownership, the Imam can administer it such that the benefits serve a broader range of recipients.

Hence the collective political action in connection with a cultivable land acquired through military conquest by Muslims results in the land being placed within the orbit of Muslim community, instead of a wider orbit of humanity. It does not change its character as a public asset, under common ownership. However, when the political action is that of individual nature, such as a surrender by their owners to the Islamic nation the land loses this public asset character and is subjected to the principle of private ownership

In light of this we learn that the basic sphere for private ownership of land in Islamic legislation is the group of lands which were private properties under the social order their owners had lived in - before their voluntary surrender and peaceful acceptance of the call of the Islamic army - because the Shari’ah respects their ownership and acknowledges their rights to their properties. Beyond this sphere, land is regarded a property of the Imam and the Shari’ah does not acknowledge appropriation to individuals that results in private possession and control of lands. However, according to the opinion of ash-Shaykh at-Tusi an individual can acquire a private right to a land by rendering it fit for cultivation, as mentioned earlier. This right, even though it does not differ from our present day understanding of ownership, is theoretically different.

As long as the individual does not hold ownership of the land and as long it is within the orbit of the Imam’s ownership, it shall be the prerogative of Imam to impose land tax on the land as stated by ash-Shaykh at-Tusi. Further, even though in practice the tax is not levied on the basis of the tradition of tahlil (exemption) - which provides a relief from it as an exception - the taxability is acknowledged theoretically.

The Shari’ah therefore does not acknowledge private ownership of land, except within the bounds of its respect for the actual ownership of lands before their entry into the Islam nation via voluntary surrender or by way of treaty. We can easily find political justification for this acknowledgement if we were to relate it to the considerations of the religious call and its expediencies - instead of linking it with its economic significance – to ascertain the Islamic standpoint on the matter.

It is necessary that in case of those who voluntarily surrendered their lands to the Islamic nation or who peacefully submitted themselves to the authority of the Islamic nation by way of treaty, the land that they cultivated should be left in their hands. They should not be compelled to tender their lands to the state they had joined or the authority they came under. Such actions would have caused a major obstacle and encouraged resistance to the Islamic propagation at the various stages of its progress and expansion.

However, by granting these people the right of private ownership of their lands, Islam has not accorded an absolute right. It was conditional on the owners always keeping their lands in cultivable state and continuing to work the lands such that they contribute to the betterment of Islamic nation. If the lands are in a neglected state such that they become uncultivable, then in the opinion of some jurists like Ibnul-Barraj and Ibn Hamzah, the lands will become the property of the nation.

Underground Minerals And Other Natural Resources

Underground raw materials and mineral deposits existing therein come next in importance after land, as to their role in production and economic life of man. In fact, all material goods and the luxuries man enjoys are eventually traceable to land and underground materials. It is because of this that most industry sectors such as construction relies on the mining industry, by which man obtains those the materials and minerals.

The jurists usually classify minerals into two categories: az-zahir (the evident) and al-batin (the hidden). Az-zahir minerals are those mineral substances that naturally exist in a state that do not require additional labour and processing, like salt and oil. If and when we identify an oil well, we will find the minerals in such state whereby no further labour is required to transform it to crude oil, apart from the work to reach the well, drill it and draw the oil out.

So the term az-zahir as a juristic term is not used in its literal sense - that it is exposed or in the sense that it does not require digging and labour to reach or have access. The term is applied, as a descriptive term to denote every mineral, which when discovered, already exists in a state that requires no further transformation. It does not matter whether man is required to undergo a great deal of difficulties to reach the deposits buried deep underground or acquire it from the surface of the earth without any effort.

As for al-batin minerals, as a juristic term it refers to minerals that require labour and further work to process and/or transform them, like gold, iron and other metals. Metal deposits in the mines are not in a ‘ready-to-use’ state with the respective properties. They normally lay hidden deep underground, and the mining involves difficult and challenging tasks. More significant is that the natural deposits are in the form of metal ores and the extraction processes to produce the respective metals involve a great deal of works before they become ready for the market.

Hence to determine whether the minerals are az-zahir or al-batin in the juristic nomenclature, it depends on the nature of the materials and their respective state of ‘readiness’, not on its location or accessibility. In order to elucidate these juristic technical terms that we mentioned, let us refer to this quite from al-‘Allamah al-Hilli, in his at-Tadhkirah: “By ‘az-zahir minerals’, it is meant those mineral deposits that exist in forms which require no additional works and processes to obtain their essence, other than the efforts to reach the deposits in some instances. These include salt, oil, coal, asphalt, China clay, ruby, antimony, aggregate stones, and other similar minerals like. By ‘al-batin minerals’, we refer to those mineral deposits, which require further work and processes to be able to obtain and extract their essence. These include silver, gold, iron, copper and lead’’

Az-Zahir Minerals

The az-zahir minerals - like salts and oil - according to the prevailing juristic opinion, are substances that should be shared by all people. Islam does not recognize the appropriation of these deposits to anyone for private possession or private ownership they come under the orbit of common ownership and as such are subject to this principle. Islam only allows individuals to acquire such quantities that would meet their needs for that mineral, without appropriating it or taking into their possession the respective natural deposits.

On this basis, it is for the State - or the Imam as the head of the people who collectively own these natural resources - to organize the facilities and extraction works to enable the people to benefit therefrom. The Shari’ah has absolutely prohibited arrangements whereby individuals could acquire monopoly over the extraction and use of the minerals. Even if these undertakings involve labour and excavation works to reach the deposits or to enable their extraction from locations at deeper layers underneath, no private right and title shall be granted for these mineral products. These efforts do not result in the exclusion of the minerals from the orbit of the common ownership. The shariah only allows any individual to acquire a quantity that meets his personal need.

After having elucidated the legislative principle concerning the az-zahir minerals in At-Tadhkirah, Al-‘Allamah al-Hilli - after quoting many examples - stated: ‘No one acquires the deposits of these minerals by reclamation and rehabilitation efforts if it means thereby “nayl” by general consent’. By ‘nayl’ he means the geological stratum wherein the mineral deposits lie. Thus it is not allowed for an individual, for instance, to take possession of those minerals even if he digs the well or the mine till he reaches the geological stratum underneath the earth, where the deposits lie.

Also in al-Qawa‘id when talking about the topic of the az-zahir minerals it is stated as follows:

‘‘The minerals fall into two categories: the az- zahir and the al-batin. The minerals which come under the category of the az-zahir are those minerals that no processing is needed to reach (the required properties) like salt and oil, sulphur, coal-tar, asphalt, antimony, bituminous substances, and ruby ... the closer they are to the joint partnership of Muslims therein, such being the case they cannot be acquired by reclamation nor will it become private property by constructing an interdictory boundary line to it nor will it be valid to rent it for a fee. It cannot be treated as private property to be rented. The one who gains the first access to its location shall not be disturbed till he has satisfied his need for it. If two persons reach it at the same time, lots shall be cast. When both cannot jointly participate in mining it, there are two possibilities to decide who shall be the first, that is by casting lots or the person whose need is greater shall be allowed first to satisfy his need’’.

The text of many reference books on jurisprudence like al-Mabsut, al-Muhadhdhab, as-Sara’ir, at-Tahrir, ad-Durus, al-Lum‘ah, ar-Rawdah support the principle of the common ownership and the invalidity of private ownership in respect of the az-zahir minerals.

It is given in the Jami‘u-sh-shara’i‘ and al-Idah that ‘‘If any individual tries to take (from these mines) more than his requirement, he must be prohibited from doing so’’.

Contents of al-Mabsut, as-Sara’ir, ash-Shara’i‘, al-Irshad and al-Lum‘ah confirm this interdiction, since it is said in them: ‘‘He who is earlier, let him take what his need requires’’.

Al-‘Allamah al-Hilli says in his at-Tadhkirah: “This is the opinion of the majority of our jurists, they however have not made it clear whether it is yearly or daily need”. By this he means that the jurists have prohibited an individual from taking more than his need but have not limited the period of the need, whether the need is for a day or year. In this, the Shari’ah does not describe the measures concerning the need, instead places its emphasis on the illegality of any individual exploiting these natural resources.

Considering the juristic text presented by us, az-zahir minerals are thus subject to the principle of common ownership. However, common ownership here differs from the common ownership of the lands conquered in cultivable condition that we discussed earlier. In the case of the conquered lands, common ownership is applicable as a result of the collective political action that the nation had carried out, which is the conquest by the nation. So the conquered property will remain as jointly owned common property of the Islamic nation.

But in the case of the minerals, all citizens have equal share according to many juristic sources. In mentioning about common ownership, it is intended for all, not just Muslims. This is stated in al-Mabsut, al-Muhadhdhab, al-Wasilah and as-Sara’ir. In the opinion of the authors of these sources, there is no evidence for the mining production to be exclusive property of the Muslim community. Instead, it should be for all living under the shelter the Islamic nation.

Al-Batin Minerals

In juristic sense this refers to those mineral deposits that do not exist in their finished form and a state of ready-for-use. Further works and processing are needed to extract, refine and transform them into the respective finished forms, such as gold. Gold does not exist in a finished form and ready-to-use state, but further work and refinement are needed to extract the gold metal and remove the impurities.

The al-Batin minerals, in turn are also of two types. There are those that are found close to the surface of the earth and are easily accessible. The other type exists far below the surface and is highly inaccessible.

Al-Batin Minerals That Are Easily Accessible

As for minerals found close to the surface of the earth, the directive in Shari’ah is similar to az-zahir minerals, which we have already discussed. Al-‘Allamah al-Hilli says in at-Tadhkirah regarding al-batin minerals that they may be either easily accessible or otherwise. Some mineral deposits may exist close to the surface of the earth or even above the ground, and could be easily collected. Some are hidden and lie deep beneath the surface. If the deposits are easily accessible then they cannot be acquired by way of reclamation, just like az-zahir minerals.

So, Islam does not allow appropriation of mineral deposits that are easily accessible as a private property while they lie in the mines, pits or beds. It allows each individual only such quantity as he can extract or take into his possession, provided the quantity does not exceed a reasonable limit. The limit should also be such that the quantity taken would not cause social injury to the individual or result in inconvenience to others, as specified by the jurist al-Isfahani in al-Wasilah.

We say this because we do not possess a sound text in the Shari’ah indicating the quantity that is considered as “taking control or possession’. Such actions, under all circumstances are grounds for confiscation irrespective of the amount and the consequence of the confiscation on others. All that we know in this respect is only one thing: that during the era the legislative rules were developed, the practice was that the people fulfilled their needs for the mineral materials found on the surface of the earth or those that were in easily accessible locations, by taking into their possessions these materials only in such quantities that would meet their respective needs.

The quantities they could extract and take possession were naturally small because of the limited means of extraction and production they could command at the time. Hence the people’s inclination towards that practice prevailing at that time cannot be used to argue that the Shari’ah sanction individual appropriation of whatever quantity he could take possession of, even if the quantities acquired were different from one person to another - either in term of the amount extracted and secured, or in terms of the impact on others - when this practice was prevalent during that era.

Even to this day we find that the jurists do not permit private possession of the az-zahir minerals and those al-batin minerals that are easily accessible. But they do allow an individual to take a reasonable quantity of the minerals that would meet his personal need. This will allow more opportunity for their use and enjoyment on a broader scale, compared to granting monopolistic operation by private enterprises.

Al-Batin Minerals That Are Not Easily Accessible

Mineral deposits that lie deep below the ground require two types of efforts. The first involves searching (prospecting) and physically extracting them by drilling, excavation, digging etc. The second are efforts to separate or refine the materials and further transform them by chemical or physical processes into the desired forms. These include minerals as gold and iron. These types of minerals constitute the category of al-batin minerals that are not easily accessible.

A number of theories have been considered in Islamic jurisprudence (fiqh), in respect of these minerals. There are those who hold the opinion that these mineral deposits are property of the state or Imam by virtue of his office, not in his personal capacity. Among them are al-Kulayni, al- Qummi, al-Mufid, ad-Daylami, al-Qadi etc. Their view is that minerals are like anfal and they are property of the state. There are also those who hold the view that these minerals are of the nature that fall under the category of joint property shared by all the people, or that under public ownership category. Among them are reportedly al-Imam ash-Shafi‘i and many of the Hanbali ‘ulama.

With regard to our search for the Islamic economic doctrine, it is practically of high importance for us to study the legislative form of ownership of these minerals and to find out as to whether it is public ownership, or state ownership, or any other forms. As long as it is agreed that these minerals - by their nature - bear the general social character and belong to no particular individual, a study of the type of ownership will remain just a formal inquiry and has no direct impact on our goal. However, the significant point that deserves the focus of the inquiry is to ascertain as to whether or not Islam would allow placing gold and silver mines outside the domain of common assets and grant ownership to individuals who carry out excavations and prospecting for these minerals.

We have seen in the case of both az-zahir and al-batin minerals that are easily accessible, that the Shari’ah - according to the opinion of the jurists in common (jumhur) – does not allow their appropriation as private property. It permits every individual to take such a quantity of minerals that meets his needs and that would not disadvantage others. Therefore, it is necessary that we learn the standpoint of the Shari’ah concerning al-batin minerals – that are not easily accessible - and clarify the similarities and differences, in comparison with other minerals.

The question therefore is whether or not an individual can acquire a gold or iron mine as a private property, by discovering them through excavation or other means. The usual response by the jurists to this question is in the affirmative. They hold that ownership of the mines can be acquired through works that involve prospecting and developing access to the deposits. Their argument is that discovering a mineral through excavation is a type of reclamation. In their view, it is similar to the ownership of the harvest from naturally grown vegetation acquired by reclamation. Thus discovering mineral via excavation and prospecting is also a means of acquiring possession and control. Possession and control are considered grounds for the ownership of natural resources, in accordance with their respective forms.

When we examine this opinion from the angle of economic doctrine, we must not do so independent of the conditions that were imposed and the restrictions applied in the case whereby an individual who discovered a mine is allowed to acquire its ownership. The fact is, according to this opinion, his ownership does not extend to all the mineral deposits existing deeper below the ground. His ownership is applicable only to that part of the mineral deposits revealed by his excavation efforts. Likewise, the ownership does not extend to areas outside the border of the pit, which the discoverer has constructed. This part is what - in juristic parlance – is termed the precinct of the mine for others.

It is clear that the ownership is very restricted, resulting in the opportunity for any other person to carry out excavations at another spot in the mine area. In case where the first discoverer extracts or draws the mineral deposit, another person can come and also operate in the area of the mine and extract the mineral because the first discoverer does not own the whole mine.

This limitation on the ownership of al-batin minerals is made clear by those who hold this view in a number of juristic texts. Al-‘Allamah al-Hilli says in al-Qawa‘id:

“If a person digs and reaches the mine he does not get the right to prevent another person from digging it from another side. If he — the other — reaches its vein, it is not for him — I mean the first digger — to prevent him for he possesses the place which he has dug up and its precinct (harim)”.

He says in at-Tadhkirah, while explaining the range of ownership:

“If the excavation area is widened, and what is extracted is not found except in its middle part or in a part of the edges, his ownership (of the mine) will be confined to the spot where the material is found, but just as he becomes its owner, what he owns is only that spot by and nearby it - what may appropriately be described as its precinct, including the spot on which his assisting hands and his animal stand”.

“Concerning the validity of the excavation that is done from another spot by another person, it is not prohibited even if he reaches the vein irrespective of whether we say or do not say that the mine is his - for if he at all owns the mine he (only) owns the spot he had dug up, but not the veins which are beneath the earth.”

These texts restrict the ownership within the confines of the excavated pit and the area surrounding it to such an extent as would facilitate the operation of extraction, but do not admit extension of the area to more than that either horizontally or vertically.

We must consider the restrictions - stipulated by the same jurists who uphold the view allowing private ownership of the mine - invalidating the ownership of the mines upon their disuse. Individuals are therefore prevented from repeating excavation works - and reach the deposits – on multiple spots and thus end up owning several locations. The mines are effectively seized when they are abandoned and neglected.

When we incorporate these restrictions into the view that allows appropriation of mines under private ownership, there is a strong ground for denying private ownership over mineral deposits and mines. Based on the deductions drawn from theoretical discussions of Islamic economics - by the directives and rulings on the restrictions - individuals are actually not to be granted appropriation of mineral deposits, except only the spot of the pit excavated by him and the immediate area. The ownership by an individual is conditional - from the very commencement of his excavation work – on his continuous operation and on him not blocking access by others, failing which his entitlement is invalidated.

Ownership of this nature clearly differs from the type ownership of natural utilities and resources found in capitalist doctrine of economics. This type of restricted ownership does not go beyond facilitating the distribution of resources among the people based on labour spent and on individual needs. It cannot lead to the creation of individual-owned monopolies like those commercial arrangements that dominate the capitalist societies. It would also not become a means for acquiring dominance and control over natural utilities or monopoly over natural resources and mineral deposits.

Along with this prevalent view in the juristic circle - holding the legality of ownership (of the mines) - there is also an opposite view that rejects appropriation mines to private owners, even within the limits set by the jurist who uphold the first view. This juristic inclination – rejecting entirely the private ownership over mines - draws support from the self-contradictory arguments and viewpoints of the proponents of private ownership (of mines). Their arguments could not convince jurists to acknowledge that the individual who starts work at the mine owns the mine on the basis of reclamation (by developing access to it) or on the basis of his holding possession and his having control over it, because under the Shari’ah reclamation establishes a special right only in the case of land based on the text that says: “Whosoever reclaims a waste land does acquire the property”.

The argument goes that mines are not in the same category as lands. It is observed that when the jurists discussed the precepts relating to lands in cultivable state acquired by conquest - and said that they are common property of the Muslims - they did not include the mines found on these lands in this category of ownership. They thus acknowledged the fact that a mine is not a land as comprehended by the text. Similarly no evidence is found in the Shari’ah suggesting that control and holding in possession constitutes grounds for ownership of natural resources.

On the basis of this juristic viewpoint, an individual cannot claim control over anything in the mine so long as it is inside the mine. He can only take possession of the materials that he extracts from the mine as his own private asset. This would not mean that his relationship with the mine does not legally differ from that of any other person.

At the same time, despite the fact that he does not own the mine, legally he is deemed more entitled to enjoy the benefit of the mine than any other person and to carry on the excavation work in the mine because of the fact that he was the one who created the opportunity to operate the mine by having expended his effort and labour to develop access to the mineral materials below the ground. Hence he is entitled to prevent others from making use of the mine to the extent that he has priority in terms of access to and extraction from it. Others are permitted to operate only in such ways that do not interfere with his right to reach and extract the mineral deposit.

In light of the position of the juridical texts and theories about (ownership of) mines, we can educe that mines are - in the predominant juridical opinion - jointly shared common properties and are subject to the principle of common ownership. That means it is not allowed to appropriate a whole mine, with the veins and deposits below the ground, to any individual.

The ownership right of the person - who discovers and works the mine - in respect of mineral deposit is only to the extent of the immediate vertical and horizontal extensions of the pit. However, it constitutes a legal difference between the prevalent juridical opinion and the opposite juridical trend. In the prevalent juridical opinion, the individual is given the right to acquire the mine within those boundary limits in case of al-batin mineral deposits in a mine that is not easily accessible. As for the opposite juridical inclination, the individual is granted the right to own only such quantity of the material he extracts from the mine and he is granted priority claim in accessing the mine and extracting deposits therefrom.

Does Ownership Of Land Mean Ownership Of The Mine On It?

Until now, the subject of our discussions is a mine, which exists on a free land, which do not belong any particular individual. The conclusion we arrived at from our discussions is as what we have educed above. Now it is appropriate that we observe as to whether this conclusion is applicable for mines that exist on privately owned lands or those mines that are considered as private property in the sense that the respective lands belong to some individuals.

The fact is that we find no restriction to the application of the conclusion, arrived at in our discussions concerning the mines. There exist a necessary consensus (ijma‘ ta‘abbudi) to the effect that the presence (existence) of a mine on a privately owned land is not a sufficient ground for its appropriation as his private property from the juridical point, for we have learnt in the previous discussion that the entitlement of an individual to the appropriation of the land arises on two grounds. First, by reclamation and second, by a country entering into Dar ul-Islam and its people voluntarily surrendering their lands.

Reclamation entitles the worker to stake a claim on the land he had worked on and make it cultivable, while the incoming citizen’s voluntary surrender of his land renders the land his property. But neither of these grounds extends to the mines existing below the ground. Both only apply to the relevant land areas in accordance with the shar‘i argument concerning either of them. The shar‘i basis in respect of reclamation is the legal text to the effect that “whosoever reclaims a land he has the best right and title to it. He shall have to pay tax in respect of it”. It is clear that this text bestows upon the one who reclaims the land an entitlement only to the land he had reclaimed, not to the riches that lie underneath.

As for the shar‘i basis in relation to the property of the individual of the country that have voluntarily surrendered their lands, it is that Islam protects blood and property. So he who embraces Islam, has his blood protected and the property that he possessed before he embraced Islam is left to him. This principle is applied to the land itself and not to the mines that exist thereon.

The reason is that the person who embraced Islam did not possess those mines before he embraced Islam so that they could be protected for him. In other words, the principle of protecting blood and property in Islam does not legalize newly gained ownership. It gives protection to the person - for the reason of his joining the fold of Islam - in respect of those properties which he possessed before he embraced Islam. And mines do not come under the category of these properties for him to keep in his possession by his embracing Islam. Islam honours and recognizes his land, which formerly belonged to him. So it remains his property after Islam and is not taken away from him.

There does not exist in Shari’ah any nass (text) to the effect that the ownership of the land extends to all the riches existing underneath the ground. Thus we learn that unless there exists a consensus to the contrary, it is juridically possible to say that mines existing on lands that are privately owned or in possession of some individuals are not their private properties. However, when the mines are operated for production, the land owners’ rights will have to be taken into consideration since reclamation of the mine and extraction of the material present therein should be subject to consent of the land owner.

Iqta’ (Feudal Institution) In Islam

This word iqta’ (fief) can be found among the technical terms of the Islamic law connected with lands and mines. We see this word - in the discussions by many of the jurists - in the statements that refer to the assignment of certain lands or mines is the prerogative of the Imam. The difference between them is as to the limits within which it is permissible for the Imam to do so.

The word iqta’ (fief) carries with it a distorted perception of well-established conceptions and institutionalized practices, coloured by the history of the middle ages, in particular the history of Europe. As a result of that, the word evokes in the mind all those conceptions and practices that define the relationship between the owner of the land (the feudal lord) and the tiller of the land (his vassal), which regulate their respective rights in an age when feudalism was dominant in Europe and other parts of the world.

This connotative, evocative and reflexive conditioning is the linguistic outcome of the cultures and social doctrines that did not exist in Islam, and not those Islam was acquainted with. Whether or not Muslims in some parts of the Islamic homeland - having lost their roots and cut off from their fundamental ideological anchors and carried away by non-Islamic currents - had become acquainted with them, it would not be reasonable for us to load the word iqta’ as it is used in Islamic syari'ah with these cultural and historical liabilities.

We do not intend to discuss the historical legacy the word is burdened with as a result of certain periods in the Islamic history, for it is not our goal to establish comparison between the two perceptions of the word. On the contrary, we do not find any justification at all to compare and contrast the meaning of the word iqta’ as used in Islam and its meaning as comprehended in relation to the feudal order so as to cut off theoretically the relationship between them, just as to make them distinct from each other historically. Our only aim is to expound the word from juridical point of view in order to define the complete shape and form of the precept of Islamic Shari’ah in relation to distribution (of wealth), which is consolidated and crystallized through the process of discovery pursued in this book.

Iqta’ is defined by ash-Shaykh at-Tusi in al-Mabsut. It is in fact an Imam’s granting a person the right to work on a source of natural wealth, with his work deemed to constitute a ground for appropriation to him or his acquiring a particular right to the natural resource therein. In order to fully comprehend this definition, we should bear in mind that it is not permissible for the individual to work on any of the natural resources unless and until he is permitted by the Imam or the state to do so, either in a general or a specific manner. We will mention this in a later chapter in relation to the principle of state intervention, which enables supervision over production and distribution of work and opportunities in an appropriate and legitimate manner.

Hence it is natural for the Imam to undertake himself the efforts to ensure productive work in relation to those resources. The Imam could alternatively establish collectively owned enterprises to provide opportunities for the people to carry out production activities in accordance with the respective conditions and production potentials, in pursuit of social justice from the Islamic point of view.

In respect of certain raw materials, such as gold, it may be preferable for the state to undertake the extraction works and to make readily available significant quantities from the materials extracted, for the benefit of the people. In the event the Imam finds this to be not practically possible because of the insufficient production capacity under a state-initiated enterprise, he may opt for another mode of production. He may grant permission to individuals or groups to take possession of the mines and to extract as much quantity of gold as possible. It is thus the prerogative of the Imam to decide on the mode of the production enterprise and the relevant policies pertaining to the production of resources in light of the actual circumstances and in pursuit of justice for all.

In light of this we can understand the role of the term iqta’ and its juridical context. It is a mode of undertaking the extraction of raw materials that the Imam adopts, which he views as the best option under a particular set of circumstances. So the Imam’s giving iqta’ of gold mine to a person means permission to him to revive that mine and to extract the mineral deposits from it.

Therefore it is not permissible for the Imam to grant a person the iqta’ of what is beyond his means and ability to manage and is thus unable to perform, as stated by al-‘Allamah al-Hilli in at-Tahrir. A similar view was also given by Shafi‘. Since iqta’ in Islam means permission to an individual to work the mine and extract deposits of natural resources assigned to him under the arrangement, if he is has no capability to perform the role the iqta’ will not be lawful. So this definition of iqta’ reflects explicitly its nature as a mode of the distribution of works and benefits in relation to natural resources.

Islam does not consider iqta’ as a ground for appropriation of the natural resources granted to an individual assignee by the Imam. That is a misinterpretation of its true character as a mode of organizing production and extraction work and also a means of distribution. Iqta’ only gives the individual assignee the right to work the mine and extract the natural resources. This right also comes with the obligation on him to work on those natural resources. No other person will be allowed to prevent him or to interfere with his work as clearly stated by al-‘Allamah al-Hilli in al-Qawa‘id: “Iqta’ imports ikhtis as (an exclusive right)’’. In the same way ash-Shaykh al-Tusi writes in al-Mabsut: “if the sultan gives to a man of his subject, a piece of barren land by way of iqta’ (fief) he becomes more entitled to it than any other person by reason of the sultan’s giving him the iqta’, without any objection.”

So iqta’ is not a process of appropriation, but a right and a title that the Imam confers upon the individual over natural resources, which makes him more entitled than any other person to avail for productive purpose a piece of the land or a mine assigned to him which is determined according to his ability and means. Evidently giving this right is necessary as long as iqta’ is - as we have learnt - a mode of organizing operating capabilities and labour forces with the intention to obtain better yields from the natural resources.

Without such right being granted, iqta’ would not be able to function accordingly. To be able to effectively work on the mine and the resources assigned to him by iqta’, the individual needs to have the right to invest and enjoy priority over others under that arrangement. So this right provides him with legal security and facilitates the success of efforts in organizing the production of natural resources in a way that is efficient and profitable.

From the moment the Imam assigns to a person the iqta’ of a piece of land (part of a mine) until he commences operation - i.e. the interval between the period during which prepares and gets the mine in a condition ready for extraction work – the only right the person has is to carry out his work in the designated area of the land or the specified portion of the mine and put it into productive use, and the right of preventing others from interfering with his work. Any interference by a third party would upset the mechanism, which the Imam chooses in relation to production of the natural resources and the organization of work on the basis of efficiency.

This period between the granting of the iqta’ and the commencement of the extraction works must not be extended because iqta’ does not mean the individual has proprietary right over the land or the mine. It is only a mechanism to facilitate the organization of operation work for the exploitation of the natural resources efficiently. Therefore, the assignee of the iqta’ has no right to delay the commencement of work without justification because his delay in commencing the work becomes an obstacle to the success of the iqta’ in its character as a means to organize the work. That would be similar to interference in his work by another person - after he has already been appointed to carry the works on behalf of the state - being an obstacle to the functioning of iqta in its Islamic role.

Therefore, we find ash-Shaykh at-Tusi stating in al-Mabsut:

“If he (the assignee) delays the reclamation, the Sultan will tell him: you may either reclaim it or leave it for another person so that he may reclaim it. If he gives excuse for delay, and prays the Sultan to give him time, the Sultan may do so. But if he has no excuse for the delay and the Sultan gives him the two options, and he does not do so the Sultan will take it away from his possession”.

It is given in the Miftahul-karamah:

If he (the assignee) pleads desperately and appeals for time till better days, his request will not be taken into consideration for that would lead to indefinite delay and would entail protraction, leading to abandonment.

This is the whole structure of iqta’ and its implications during the period from the granting of the right to the commencement of the work. It is this intervening period wherein iqta’ is effective according to the Shari’ah and this effect does not extend beyond the right to work - as we have learnt - that makes iqta’ a mechanism which the state avails under certain circumstances for the extraction of natural resources and for organizing the forces of production based on efficiency.

After the person had carried out the production work on the land or the mine, the effective period of iqta’ ends in the view of Shari’ah. But he gains entitlement and right to the land or the mine based on the work he had performed (during iqta) in accordance with the nature of the work, as we have come across earlier.

This is the truth about iqta’, it as an Islamic mechanism for organizing production work as we have demonstrated with evidence from selected texts and precept as to its definition and structure in Shari’ah. Iqta’ was established to facilitate management of natural resources – their custody, production and distribution.

It is not legally valid or permissible to assign a special right of ownership by virtue of the work, as stated by ash-Shaykh at-Tusi in al-Mabsut. This is based on numerous chains of reports of the relevant tradition. The prohibition of granting iqta’ for this type of public utilities and limiting it specifically to the wastelands indicate quite explicitly the fact that the function of the iqta’ - from the Shari’ah point of view - is only granting of the right of work on a particular site of natural resource for a specific purpose, as a mechanism to organize labour for its extraction, as we have established earlier.

As for the right and claim of the person on the natural resource, it is established on the basis of work and labour, and not on the basis of iqta’. However, if the natural resources or public utilities are not in need of being reclaimed and worked on, and there is no necessity to give a specific right or title to any person working on it, then iqta’ is not permissible inasmuch as iqta’ of such a utility loses its Islamic significance. Establishing iqta’ in this situation may result in monopolistic exploitation of natural resources, driven by personal gains. This contradicts the Islamic concept of iqta’ and its original function. Because of this, such arrangement is forbidden by the Shari’ah, which has restricted legitimate iqta’ arrangements only to mines that are in need of development work.

Iqta’ In Relation To Taxed Lands

The term iqta’ is also applied in the juridical parlance for something else, which is payment for service. This iqta’ is on taxed lands which are considered national assets. The governor can grant an individual something (derived) from taxed lands and authorize him to collect the tax on those lands. This authority is exercised by the governor although it remains more of a historical significance, without the real right and process of appropriation that lead to the actual proprietary right to the land. In its juridical sense and within permitted limits, it does not mean anything of that nature. It only represents a mode of payment of remuneration or compensation for work, which the state undertakes to pay the individuals for the public services rendered by them.

In order to understand this, we must call to mind the fact that the tax - the land tax that the state demands from the farmers working on the lands - is considered a property of the ummah (Muslim community) arising from the ummah’s ownership of the relevant lands. It is, therefore, the duty of the state to spend taxes derived from the land for the collective interest of the ummah, as stipulated by the jurists in their texts.

Some gave examples of a range of collective interests including construction of mosques and bridges, etc. or providing administrators and judges, as the administrators and judges serve the ummah. Therefore hiring and maintaining them is the obligation of the ummah. As mosques and bridges are a part of the public utilities which are linked to the life of the people as a whole, building them with people’s fund – including the money from the land tax - is valid.

The pay for administrators, judges and any other individual for rendering public services may be made by the state either directly from the public treasury (baytul-maal) or by giving the recipients the permission to collect the revenues from some of the state properties and retain their respective amounts. The state usually adopts the second method in situations where it does not enjoy strong central administrative machinery.

In the Islamic society, payment of salaries and expenses of individuals who render public services to the ummah are made in cash, or as it suits the administrative circumstances of the respective departments. These payments are made by way of the state granting the public officials the right of control to over tax collection for a set of specified landed properties from among those belonging to the ummah. So it is in this sense that the term iqta’ is applied. In reality it is not an iqta’, but the delegation of the authority to public officials to collect land taxes in order to facilitate the payment of their salaries and expenses.

The assignee of the iqta’ owns the tax receipt from the land – as payment of wage for the service he has rendered to the ummah - but he neither own the land nor a its proprietary title. He also does not have a right over the harvest. The property remains as collective asset of the Muslim community and as a taxed land as stated by the jurist research scholar, as-Sayyid Muhammad Bahrul-‘Ulum in his Bulghatah when he defines this kind of iqta’ as iqta’ of taxed-land. He wrote:

“Indeed iqta’ does not re-designate the land from being a taxed-land into another category, for it only means assignment of the tax to appointed officials, not a re-designation from its status as a taxed-land.”

Hima (Preserved Or Protected Land) In Islam

The concept of hima came from Arabs of the ancient times. It’s an expression for wastelands in distant areas, which the powerful ones among them used to monopolize for themselves. Others were not allowed to enjoy the benefits derived from these lands. They considered whatever riches and benefits derived from these lands as their sole and exclusive property on account of their having forcibly acquired these lands and their might and power in preventing others from using the lands.

It is mentioned by the research scholar an-Najafi in his book al-Jawahir that:

“It was the custom of these people in the days of ignorance (pre-Islamic era) that when one of them set his foot on a fertile land he would cause his dog to bark from a surrounding hills or a plain land and then would declare as his own property all the land as far as the barking sound reached and staked a claim over the area. It was because of this that it was termed hima”.

Islam naturally forbids Hima because its right is based on domination, not on work and labour. Because of this, Muslims are not allowed to engage in this practice. There is a tradition, which affirms the abolition of this method of acquiring and monopolizing natural resources. It says: There is no hima except for Allah and His Messenger.

In some of the traditions it is mentioned that a person asked al-Imam as-Sadiq (a.s.) about a Muslim who had a landed estate where there was a hill that was a sellable thing among others he bought. Then a Muslim brother who had sheep and was in need of the hill came to him. Would it be lawful for him to sell the hill just as he sold other things therefrom, or is it forbidden for him to do so? What will be his position in this matter and what shall he take? The Imam replied: “It is not lawful for him to sell his hill to his brother”.

The mere presence of natural resources that come under the control and power of an individual is not considered by Islam as a ground for giving him right and title over those resources. The only hima that Islam has permitted is the hima of the Messenger of Allah, peace be upon him and his progeny. The Messenger of Allah had preserved some places from wastelands for general good of the people like Baqi‘, since it was reserved for the camels of sadaqah (charity), cattle of jizyah (tax on non-Muslims under Muslim rule) and for horses of the army.

Sources Of Natural Water

There are two types of water sources. The first type comprises bare sources above ground sources that Allah has created for man like seas, rivers. The second type comprises underground water sources, which man can access and benefit by spending labour to dig wells in reaching them.

The first type of water sources is considered common property shared jointly by the people. Those natural resources are considered as shared assets, which Islam does not allow appropriation to any individual as private property. Instead, Islam allows all individuals to enjoy the use and benefits of these assets, in line with the principles joint ownership. No one owns seas or rivers as his own private property, and all are allowed to enjoy their benefits. On this basis we learn that bare and exposed natural sources of water are subject to the principle of the public ownership. 14

If a person collects water from these sources in a container - whatever type and size it may be - he becomes the owner of that amount of water he had collected. If he ladles up a quantity of water with a jug, or draws the water up by an instrument or digs a pit in a manner that is legally allowed and connects with the river, the quantity of water ladled up, drawn up into the pit becomes his asset because he has taken it into his custody.

He cannot acquire ownership of any quantity of water he has not taken into his possession and spent labour on. This has been confirmed by ash-Shaykh at-Tusi in al-Mabsut. He wrote that water that is mubah (free to all) includes water of the sea or big rivers like Tigris and Euphrates and similar streams which spring up in wastelands of the lower and upper plains. Water from these sources is free and open to everyone to use as he wishes. There is no difference of opinion in this respect in line with the tradition related on the authority of Ibn ‘Abbas from the Messenger of Allah already cited herein before, mentioning that the people have joint shares and are partners in three things; water, fire and grass. If the water level rises and the water enters into some private properties and accumulates therein, the owners cannot acquire it as theirs.

It is labour spent which is the basis for appropriation of whatever amount of water from these sources that a person gains control over, or brings under his possession. But if water from a river finds its way to that person’s land - not by his labour or efforts on his part - then in that case he will have no justification to claim it as his own. Unless he spent labour for that purpose, the water will remain mubah (free) to all.

As for water from a source that lies below the ground, no one can claim it as his own unless he spent his labours to gain access to it, by digging to discover its source and makes it available for use. It is only when a man gains access to its source by his labour and excavation efforts that the water will become his. The spring discovered will be under his valid possession and he will be entitled to benefit from it and prevent others from interfering with his operation, since it was he who created the opportunity for the access to that spring.

So it is a part of his right to benefit from that opportunity while others who did not participate in the efforts to develop that opportunity should not come in his way of enjoying its benefits. He becomes more entitled than others to that spring and to own the water he extracted because it is a type of possession. But he does not become the owner of the spring, which existed below the ground before he uncovered it with his labour15 . Therefore, he owes a duty to allow others to use water from that source after he has fulfilled his requirement.

He is not allowed to demand payment from others in return for use of the water for their own consumption and for their livestock inasmuch as the substance (water) remains a common property jointly shared by all. The individual who discovers and develops access for the water only has the right of priority on account of the labour he invested in uncovering the source and developing the access. Once he has fulfilled his need and requirements, others have a right to share its benefits.

It has been narrated on the authority of Abu Basir from al-Imam as- Sadiq (a.s.) that the Messenger of Allah (s.a.w) has forbidden an-nitaf and al-arba’a’. He (the Imam) said: “So do not sell them, but lend them to your neighbour or brother (in faith). Al-Arba‘a’ means one makes a dam to irrigate his land until his need is satisfied. An-Nitaf means one has a fixed limit of time for irrigating his land to his satisfaction”.

In another tradition from al-Imam as-Sadiq (a.s.), it was reported that he said: “an-Nitaf means the fixed limit of time for irrigation. When your need for it has been fulfilled, you are not allowed to sell it to your neighbour but leave it for him. Al- Arba‘a’ means dams made between lands of a (certain) group, when one of them has fulfilled his needs with the water of his dam”, (the Imam continued): “he should leave it for his neighbour (to benefit), and he is not allowed to sell it to him”16.

Ash-Shaykh at-Tusi also declares in al-Mabsut the same ruling as we have mentioned and makes it explicit that the relationship between the individual and the spring of water is that of a right (to use) and not of a property (owned). This is despite of the fact that in his (the Shaykh’s) opinion he (the discoverer) owns the well that is the pit he dug whereby he gained access to the spring of the water. He wrote:

“At every place (context) we have said he owns the well (we meant by that statement) that he is more entitled to its water to the extent of his personal consumption, watering of his livestock and the irrigation of his farm. After this, if there remains any surplus it is up to him to give for free to anyone else in need of it for consumption and for the watering livestock. However, water that he has secured in his big earthen jar or water pot or in a tankard or in a pool or a well, that is the pit and not the substance (water) or in his manufactory or such other things, he is not obliged to give anything out of this stock to anyone even if it is in surplus of his need without any difference — because it is not its substance’.

So then, the individual cannot prevent other individuals from availing of the substance in it as a natural source - within limits that do not come in conflict with his right and title to it - for according to this opinion he does not own the substance itself. Instead, he only has a greater right to its benefits as a result of his having brought about the opportunity, which facilitated the availability of the use of the substance. So others should be allowed to avail of the benefit of the substance in a way and to the extent it does not come in conflict with his enjoyment of its use.

Other Natural Assets

Other natural resources come under the category of al-mubahatul-‘ammah (resources available to all). This group includes all those natural resources which everyone can use freely and enjoy the benefits as they do from their own private properties. This general permission is permission not only for their benefits but also their mode of ownership.

Islam has granted private possession and use with regard to these resources available to all (al-mubahatul-‘ammah) on the basis of work and labour spent in acquiring them in accordance with their types, for instance, the work or labour to gain possession of wild birds by hunting and capturing them. Works to fell trees and gathering the woods entitle the person to own his harvest. Works by divers entitle them to the pearls and corals from the seas. Similarly those who install hydroelectric equipment are entitled to the electrical power generated from the latent energy of the waterfalls. In this way, an individual gain possession of the al-mubahatul-‘ammah.

The ownership of these natural resources cannot be acquired except by work. Thus it will not suffice that a person brings any of these under his control without actually investing in constructive and productive work to secure them. This text is given in at-Tadhkirah of al-‘Allamah al-Hilli. If the mubah (freely allowed to all) water increases and part of it enters into another land it does not becomes the property of that man. The Shaykh says:

“He cannot become its owner just as rain or snow falls on another person’s property and spills into his property, or a bird hatches eggs on nest and rear the young in his garden, or a deer sinks in the mire in his land, or a fish falls in his boat — he does not become its owner, except with efforts to secure it’’.

In al-Qawa‘id of the ‘Allamah says in respect of the rules of hunting:

“A prey does not become his property by falling in the mire of his land or birds nestling in his house or a fish leaping up onto his boat”.

• 1. In this section we will use several technical terms. It is therefore necessary to define them at the very beginning.
  a. The principle of multiple forms of ownership: This is an Islamic principle of ownership. The principle embraces ownership in three modes - private ownership, state ownership and public ownership.
  b. State ownership: this is the right of possession of certain assets under office of the Islamic state, which the Prophet or the Imam exercises in performing their divinely ordained functions. These include for example, possession of mines according to some juristic texts.
  c. Public ownership: It is the right of ownership of certain assets by the people or nation as a whole.
  d. Ownership of the ummah (nation): It is a form of public ownership and it represents the right of ownership belonging to the entire Islamic nation in respect of a property or its historical extension, such as the ownership by Islamic nation in respect of a property acquired by conquest in religious war (jihad).
  e. People’s ownership: It is also a type of public ownership. We will apply this term to every property that an individual is not permitted to exclusively possess or own as his private property, while all people are permitted its use for their own purpose and derive benefit from it. For any property of this nature, we will apply to it the term (a property under) the common ownership of the people. The term “common ownership of the people” is applied in the parlance of this book to represent a negative attribute - that is, not giving the permission to an individual or a particular party to take exclusive possession of the property - and a positive attribute – that is, the permission of its benefits to all of the people. Examples of these are the seas and natural rivers.
  f. Common ownership: We will apply the term “common ownership” to what comprise both spheres: that of at state ownership and that of the two preceding public ownerships, in contrast to private ownership.
  g. Private ownership: we apply this term for the appropriation of a particular asset to an individual (or a limited group) that gives him the principal right to deny others from enjoying its use in any form, unless there exists a need or an exceptional circumstance. An example of this is another man fetching a load of wood from the forest or a small quantity of water that he draws with his hand from the river.
  h. Private right: we will apply the term in this discussion to represent the degree of the individual’s appropriation of the property. It differs from the degree in which the ownership expresses the appropriation in its analytical and legislative sense. Ownership is a direct appropriation of the property. The right is an appropriation, a result of another appropriation and subject to it for its continuance. On the legal side, ownership of a property gives the owner the right to deny others from enjoying use of the property. Private right does not lead to this result. Others can enjoy the use of the property in the manner and form as regulated by the Shari’ah.
  i. Public property free to all (Ibahatul-’ammah): It is a legal precept, in accordance with which an individual is allowed to enjoy the use of the property and to take it into his possession as if it were his exclusive private property. Examples of this are the wild birds and fishes.
• 2. Some economists consider labour and entrepreneurship as one single category. [Note of Al-Islam.org].
• 3. Iqtisaduna Vol . 1, Part. 2.
• 4. ibid.
• 5. Here the meaning of the word “fay” is that Allah has granted the land (as-Sawad) to all Muslims. Therefore, all have right on this land and no one, as an individual, can enjoy exclusive possession. (ed).
• 6. See Appendix II.
• 7. Refer Appendix III.
• 8. Vide Appendix IV.
• 9. Refer Appendix VI.
• 10. Refer to Appendix VII.
• 11. The tradition reported by al-Kabuli and the authentic tradition reported by Mu’awiyah ibn Wahb cannot be considered contradictory with the tradition reported by al-Halabi on the authority of the Imam as-Sadiq (a.s.), in which al- Halabi says that he had asked him (the Imam) in respect of a man who comes to a barren land, he reconditions it, causes its canal to flow, reclaims it and grows crop on it, what dues he has to pay? The Imam replied “Sadaqah”. I then asked "and if he happens to know its owner?" He replied ‘‘Let him pay to him his due’’.

  In the Imam’s reply in the tradition reported by al-Halabi, the only thing taken for granted is merely the fact that the land has ceased to be cultivable. This indicates something more general than its status as a barren land on account of the neglect by its owner. The authentic tradition reported by Mu’awiyah ibn Wahb takes for its subject matter something more specific. In that tradition, its former owner neglected the land and caused it to become a wasteland. This altogether is a more specific matter and as such requires the relationship between the owner and the land be terminated because the land had become a wasteland. He lost the right to deny others from working and reclaiming the land.

• 12. When this juridical text is compared with the legislative texts which appear in the reports of Mu’awiyah ibn Wahb and the reports of al-Kabuli, it will be observed that the text of ash-Shahid is conspicuously clear in that when the land (gets neglected and) becomes wasteland, the relationship between the owner and the land is terminated for good.

  As for the texts previously given, they (do) permit any another individual to reclaim the land after it becomes a wasteland and (because of) neglect by its (earlier) owner and confer him (entitlement to) the land. But they do not indicate a final termination of the relationship between the owner and the land on account of its becoming a wasteland (because of neglect), for it is possible within the limits of the legislative implications in these texts for us to presume that its owners shall retain a right and entitlement to it and that his relationship with the land remains - even after its neglect and resulting wastage – such that he shall have priority in reclaiming it anew, whenever there are competing efforts in reclaiming it. This priority shall prevail so long as no one has overtaken him in the reclamation works. However the initial owner’s relationship with the land is conclusively terminated if the other person has actually reclaimed it during the period of his neglect.

  Now on the basis of the juridical text of ash-Shahid, the individual’s right and entitlement to the land is completely terminated on the lands becoming a wasteland. But on the basis of the other texts, we can presume that the individual’s right and entitlement to the land remains to a certain extent. He only lose the rights to exclusively hold the land, that is the right of preventing others from making use of it and enjoying the benefits derived from it (during the period of neglect).

  The difference of these two presumptions will have its practical implications in the case when the individual who neglects the land (and it becomes a wasteland) dies before anyone else has reclaimed it. Going by the opinion of ash-Shahid will lead to the dictum of the non-transferability of the land to his (legal) heirs since the relationship of its owner with the land cease to exist. So there is no basis for its inclusion in the assets of the deceased man for inheritance purposes. But on the basis of the second opinion, the land will be inherited in the sense that his heirs will enjoy the same degree of right in respect of the land, which remained (as assets of) the deceased (even) after it has become a wasteland. Henceforth, our discussion will be based on the opinion and views of ash-Shahid ath-Thani.

• 13. By this we learn that an explanation as to the Imam’s ownership in its entirety is possible from these texts, on the basis of its being a rule of the canon law. This ‘ownership’ is in ‘deterrent’ sense, so long as it is set upon the natural state of the land - wherever it is - and not in conflict with anyone else’s ownership of a piece of land in legal manner, considering the natural state of the land and the value of his efforts, such reclamation. So there is no need to interpret ownership (as expressed in these texts) and consider it literally, outside its legal sense, as that will be conflict with the context of these texts. Look at the tradition reported by al-Kabuli and see how it declares that the whole land is the property of the Imam, ending with the dictum ‘to Imam belongs the right to impose tax on the one who reclaims the land and cultivates it’. The Imam’s imposing the tax or remuneration by allotting the rights to use, proves explicitly that ownership is taken in its legal sense which these traditions regulate, not in their spiritual sense.
• 14. There is a popular juristic opinion that such water source found on a land belonging to an individual is his private property, and is exempted from the application of this principle (refer to Appendix VIII).
• 15. Refer to Appendix IX.
• 16. See Appendix X.