The Theory

We have now concluded with precise details the general upper structure of Islamic legislative enactment comprising a collection of the main precepts, guiding the distribution of the factors of production and the regulations relating to the rights of individuals, the society and the state in respect of resources that are available naturally.

Having conceived this from the Islamic core, we would have completed half the job in searching for the theory. There remains the investigation from the religious angle, whereby we should uncover the fundamental principles and the general theories that form the base, on which the upper structure stands. This will be the second half of the process of discovering the theory. We proceed from the upper structure to the base, and from the legislative details to the broad theoretical principles.

In our presentation and interpretation of these legislative enactments and precepts, we have always followed a method that consistently and clearly reflect the strong theoretical bonds between these precepts. The same method will be useful in this second stage of the process of discovering the theory and in applying those important precepts to the general religious outlook, which we are doing now.

We shall dissect the general Islamic theory of distribution of the factors of production and study it in stages. At every stage we shall take up one single aspect and ascertain the supporting legislative and juridical texts and precepts, which we learned from the previous stage. After we have fully mastered the different aspects of the theory in light of the main precepts - each supporting one of these aspects - we would finally stitch together separate parts of the theory into one composite whole and give it its general form.

The Negative Limb Of The Theory

Let us begin with the negative limb of the theory. This side of the theory holds the principle that there are no proprietorships and primary private rights in relation to natural resources, without spending labour on them.

The Upper Structure

1. Islam had abolished (declared invalid) hima. Hima belongs only to Allah and His Prophet and is not lawful for anyone else. By this, Islam denied any exclusive right of an individual to a land by his having domination and authority over it or by his defence of the land with force.

2. If the Wali’ Al-Amr gives an individual a land as a ‘fief’, the individual thereby gains the right to work on it. But the arrangement does not grant him the right of the ownership over the land, or any other right there on unless he works or expends his efforts on it.

3. Springs and mineral deposits deep underground are not private properties. There is no special right for any individual, as al-‘Allamah al-Hilli has made clear in at- Tadhkirah saying: “He (the first person who develops access to the mine) does not possess the vein which is in the earth. He (another person) who reaches it from another side then he will take from that side.”

4. The open seas and rivers do not belong to any particular individual, nor is there any special right for any person over them. Ash-Shaykh at-Tusi says in al-Mabsut: ‘‘Water of the seas, rivers, or streams springing up in the plain or hilly wasteland, all these are mubah (free to all). Anyone can make use of what he wants and any way he wishes’’, according to the report of a tradition on the authority of Ibn ‘Abbas from the Prophet, ‘‘People have joint shares in three things: Fire, water and herbage (pasture)’’.

5. If water (level) rises and the water enter the properties of the people and settles therein without these people having gained possession by spending labour, the water will not become their theirs.

6. If an animal comes to the control of an individual without him having spent any effort in hunting or capturing the prey, it does not become his property. Al-‘Allamah al- Hilli in al-Qawa‘id says, “ A prey does not become one’s property by its entering one’s land, nor a fish by leaping up onto one’s boat’’.

7. The same is the case with other natural resources. That they fall under the control or come into the hand of a person without any exertion on his part does not justify his possession. It is because of this that it is given in at-Tadhkirah: “A man does not become the owner of the snow coming into his possession merely by its falling on his land”.

Deductions

From these precepts and other similar ones in the collection of the Islamic legislative enactments that we have come across, we are able to know that there does not exist - for any individual - a private right over the natural wealth to distinguish him from others on the legislative level, except in consideration of his specific labour. In his real life (under the Islamic system), his labor separates him from others.

The individual does not earn entitlement to (ownership of) a land if he has done reclamation work on it. As for a mine, he is entitled to carry out extraction (of the minerals or the deposits of material) after he has developed access to it. Similarly, in case of a spring or source of water, he only gains the right to acquire the water only after being the first to uncover it. In case of wild animals he only gains possession after securing them by hunting. For easily accessible natural resources, he secures possession only after spending efforts on them.

We see through these examples that in the theory, labour is considered as the sole basis of acquiring primary possession rights over natural resources. But its application differs theoretically to different types of the natural resources. What is considered practically as labour in respect of some natural resources - and is a sufficient ground to establish the possession rights – may be considered inapplicable for another type.

By taking possession of some rocks found in the desert, you can own them. The labour spent in taking possession of these rocks, in theory, is accepted as the basis for establishing ownership rights. But similar labour is not admissible as the basis to establish the rights to gain entitlement and control in the case of wasteland, mines and natural springs.

So it will not suffice for you, in the case of a wasteland or a mine or an underground water source, to acquire control of those resources by bringing them into your possession. The only way of acquiring proprietary rights with regard to these resources is to spend labour and efforts on the land, the mine and the spring. The labour spent should eventually have the effect of reviving the land or develop access to the mine or the water source.

We will define in the affirmative limb of the theory the relevant meaning of ‘labour’, and the criterion it follows in describing different types of exertions, which men carry out in connection with natural resources, as labour. Once we fully grasp this criterion, we will be able to appreciate why taking rocks into one’s possession constitutes a ground for its appropriation, while taking possession of the land does not result in similar entitlement.

The Affirmative Limb Of The Theory

The affirmative limb of the theory runs parallel to its negative limb and both are complementary. The affirmative limb holds the principle that labour is a legitimate basis for acquiring rights and gaining entitlements in respect of natural assets. Hence, the rejection of any primary right in connection with natural resources - apart from labour - is a negative limb of the theory, while the recognition of labor as the basis for entitlements and rights is its pair, the affirmative limb.

Its Upper Structure

1. The land is his who reclaims and revives it, as stated in the tradition.
2. He who excavates a mine till it is made accessible has a greater right and claim to it and to the ownership of the material extracted from the pit.
3. He who digs up a natural spring of water is more entitled to have it.
4. If a person takes possession of a wild (an-nafir) animal by hunting, or wood by gathering it, or a piece of rock from its natural place by carrying it, or a quantity of water by scooping it up in container from a river, it becomes his property by possession of custody as is written in the texts by all the scholars.

Deduction

All these precepts evidently have one common factor - that labour is the only source of rights and is the only basis for entitlement in case of resources available in nature to men. Even though we find that this is the common legal factor in each of those precepts, we shall - by a detailed study of the precepts and the related legislative texts - discover one constant factor and two variable factors that differ from each other by the type and class of the natural assets.

The constant factor is the link between a person’s entitlement and rights - in respect of the natural resources - with his labour. Unless the person invests labour, he does not gain any entitlement; and if labour is amalgamated with the natural resources in any operation, an entitlement can be earned, for the relationship between labour and the entitlement rights in a general form is the common content and their constant factor.

The two variable factors we referred to are the type of labour and the type of entitlement and rights that labour brings about. We shall see that the precepts, which legally establish the entitlement and proprietary rights on the basis of labour, differ according to the type of labour that is invested and constitutes the basis for the entitlement. They also differ in terms of the nature of entitlement and right that arise in respect of the land.

Similarly we shall see that while reclamation work is recognized as labour in respect of lands and mines, it leads to only a limited right in ownership (raqbah) of the lands and the mines. The individual (who invests labour) thereby earns priority over others, but he does not become owner of the land or the mine itself. We have also learned that the labour put in for taking possession of rocks from the desert and ladling up of water from a river will be considered a sufficient ground from the Shari’ah point of view, for private ownership of the rocks and water, not merely for gaining priority right.

So there is a difference between the precepts - which connect the proprietary rights of an individual on account of his labour and exertions - as to the determination of the type of labour that give rise to these rights and as to the determination of the nature of those rights that are based on labour. Because of this it will give rise to a number of questions that require satisfactory answers.

For instance, why is it that the labour spent on securing possession of rocks from the desert and of drawing water from the river is sufficient for the person to acquire ownership right, while the same labour in respect of land and mine does not constitute a ground for similar right? Also, how is it that the right, which the individual earns in respect of water from the river by way of drawing it up, gets elevated to the level of ownership when it does not make the person who reclaims a land or opens a mine an owner? Instead, it only gives him the right of priority over the property that he revives or develops access to.

Further, if labour is the basis for the special and private rights, then why is it that when a man finds a land that is naturally fertile and benefits from the opportunity that nature has conferred upon it - by him cultivating it and expending labour on it - he does not gain the same rights as that for reclamation work, despite his efforts and labour on the land? And how is it that rehabilitation of an uncultivable land becomes a ground for the right of its ownership, while the use and cultivation of fertile land does not.

Indeed the answer to all these questions - about the different precepts of Islam in respect of labour and the resulting rights – relies on the determination of the third limb of the theory, which expounds the general basis for valuing labour in the theory. In order to determine this aspect of the theory we should gather those different precepts in respect of labour and its rights, which led to these questions, and incorporate these. From there we may formulate the upper structure, by which we will determine of the outstanding main features of the theory with clarity and precision because the body of these different precepts actually reflects precisely the main features of the theory.

Valuation Of Labour In The Theory

1. If a person carries out reclamation work on a piece of wasteland and renders it fit for cultivation or utilization, he shall be entitled to a right over the land that he had reclaimed. But he shall have to pay tax on it to the Imam unless he is exempted from that. This is stated by ash- Shaykh at-Tusi in the book of ‘‘Jihad’’ of his work al-Mabsut, in conformity in with sound texts of traditions stating that he who reclaims an uncultivable land has prior right to the land that he had rehabilitated and rendered fit for cultivation. However he shall have to pay tax on it, and in line with the right which he earns to it by virtue of his reclamation efforts, no one else shall be allowed to seize it from him as long as he holds his right, although he does not own the land itself.

2. If the person carries out the work of tilling a naturally fertile land and grows crops on it, he shall have the right to retain his possession of the land and it is not permissible for others to interfere in his utilization of the land and enjoyment of its benefits so long as he continues exercising this right. But this right does not entitle him a monopoly over the land. It does not stop another person from utilizing the land when he (the first person) does not use it productively. On account of this, the right that results from working a land that is naturally fit for cultivation differs from the right which accrues from the reclamation of a piece of uncultivable land.

The right which accrues from the reclamation work confers upon the person the right and authority to forbid another person from taking control of the land without his due consent and permission as long as signs of life exist on the land, irrespective of whether or not the first person productively utilized the land. But the right, which an individual earns as a result of working a land that is naturally cultivable, does not go beyond gaining a priority to the land so long as he utilizes it productively. If he stops doing so, any other person shall have a right to benefit from the land and to play a role similar to that of the first person.

3. If a person carries out excavation and uncovers mineral deposits on a land and develops access to the mine, another person shall have the right to benefit from the same mine as long as he does not interfere with the works of the first person. For instance, the second person may excavate the mine from another side or location to reach the intended mineral deposit, as specified by the learned ‘alim (al-‘Allamah al-Hilli) in his book, al-Qawa‘id.

Despite the first person’s successful efforts in excavating and reaching the mine, he shall not have the right to prevent another from developing access and reaching the deposit from another side. Similarly, the second person - having reached the mineral deposit from another side – does not have the right to prevent any others from working on the mine and benefitting from it.

4. Ash-Shahid ath-Thani in his work al-Masalik, has stated in respect of a land, which the person has reclaimed but later became uncultivable. According to him, such a land was initially a mubah but when it was neglected and later degenerated into a wasteland, it would revert to its previous status, and would be a mubah property. It is similar to water drawn from the river Tigris and then poured back into it.

Reclamation is the cause of its ownership. With the cause of ownership having ceased to exist, its effect - the ownership – also ceases to exist. This means that if the person reclaims the land resulting in his right and title to the land, that right continues only as long as the (effect of) reclamation remains physically intact. When the (result of) reclamation ceases to exist, the right becomes void.

5. In light of this, if the person carries out excavation on a piece of land to uncover a mine or a spring, and if he afterwards leaves it neglected such that the excavated pit is filled up (or the seams of the dug earth are joined up by natural causes) and another person comes along, begins excavation work and reopens the mine, he shall earn the right to the mine and the first person will lose his earlier right of preventing others to benefit from it.

6. Holding possession of a property or having control over it does not constitute a basis for granting ownership or rights to the natural assets in respect of lands, mines and springs. Such right of ownership amounts to hima and is valid only for Allah and His Messenger.

7. Ownership of wild and refractory animals is by overpowering them and breaking down their resistance, or by hunting them even if the hunter has not secured them in hand or in his trap. Possession is actually not necessary for ownership of a prey. The learned ‘alim al-‘Allamah al-Hilli affirms in the al-Qawa‘id that the grounds for ownership of the prey are four factors; rendering nugatory its resistance, evidence of its ownership, weakening it, or its falling into any device of hunting. Hence anyone who hits a hunted animal but misses it, and another person makes claim but shows no evidence of ownership, the first person becomes its owner even if he has not secured possession or custody as long as there is no one to contest his claim of ownership.

8. A person who digs a well until he reaches its water is more entitled to its water, to the extent required for consumption by his animals and irrigation of his farm. As for water in excess of these, it is obligatory upon him to provide it for free to another person who is in need, as specified by ash-Shaykh at-Tusi in al-Mabsut. We have already quoted the relevant text before.

9. If a man holds a property in his possession and he afterwards neglects and abandons it, his right and title to it becomes extinct and it becomes a mubah property, freely available for all, just as it was before he gained its possession. And it will be lawful for any other person to take it into his possession in a similar way the first person’s failure to utilize a cultivable land and benefit from it (refer point no 2 above). Abandoning and neglecting the property severed his connection with it, as has been mentioned in a sound tradition narrated by ‘Abdullah ibn Sinan on the authority of Ahlul Bayt, stating as follows:

He who lights upon a property, or a camel in a deserted tract of land exhausted or gone astray, abandoned by its owner, having ignored it, another person takes it up, maintains it, spends (labor) on it to restore it to a cultivable condition from its former lifeless state, that will become his property indisputably and the former has no right in it. This is like a mubah (free to all).

Though the tradition revolved around the abandoned camel, the (word) camel is joined with the (word) property we learn it is a general rule applicable to each and every such case.

10. A person does not gain the proprietary right to the land he puts his cattle to graze. He will obtain the right to it only by reclamation of the land. Hence it is not allowable for a person to sell pasturage unless before doing so he has acquired a right to it either by reclamation works or having inherited it from a person who had reclaimed it or in some other similar ways.

It is reported on the authority of Zayd ibn Idris that he questioned Imam Musa ibn Ja‘far (a.s.) about a person enclosing a piece of land as his private reserve for pasturage, telling the Imam that they possessed landed farm property in the country, whereby the boundary lines of each property were clearly delineated. They possessed cattle. In the country there were pasturelands, one of them had camels and sheep and he was in need of pasturage for them. He asked whether it would be valid for that man to hold the pasturages as his private reserve (hima), to meet his need. The reply of the Imam to the query was that if the land was his own land then he could enclose it as his private reserve and benefit from it. Then he asked the Imam about a person selling his pasturage. The Imam replied that if the land belonged to him there was no objection to his doing so. This reply indicates that the action of adopting a pastureland does create for the herdsman the privilege to transfer this right to another person by sale.

Conclusion

In light of the upper structure and the particular traditions from the doctrinal basics, we will be able to perceive the landmarks of the theory and subsequently will be able to answer the question we have previously presented.

Work Of Economic Value Is The Basis For The Rights In The Theory

The Theory differentiates between two types of activities. One is utilization and development. The other type is domination and exploitation. Works in the nature of utilization and cultivation are by their nature works of economic character, while the works related to domination and control are on the basis of force and do not directly justify utilization and development.

In the theory, the source of exclusive entitlements and rights is work that is connected with those in the first category. It includes the gathering of the woods from the forest, or collection of rocks from the desert, or rehabilitation of an infertile land. As for the works under the second category, they have no significance in the theory for they manifestation of force and have no economic value in relation to the utilization and development of the natural resources. Force cannot become a source of the special rights nor their sufficient justification.

It is on this basis that the general theory has eliminated the work related to possession and control of the land and does not establish any special right on that basis. Such work, in fact, is an act of force and not one of utilization and development.

The Dual Nature Of Possession

When we assert this, we surely encounter the difference between taking possession of the land, and taking into possession a piece of rock from the desert, or a quantity of firewood from the forest, or some water from the river. Taking possession is a manifestation of force, not a work of economic nature like work related to land utilization and cultivation. How is it possible that Islam allows discrimination of works related to taking into possession of the land and works related to taking into possession some woods, conferring upon the latter special rights whilst disallowing those rights in the case of the former?

The reply to this question is that in the Islamic theory the differentiation between works related to land utilization and cultivation, and those related to domination and exploitation is not based on the type of the work. Rather, the works related to land utilization in one instance and the works related to land domination and exploitation in another, may be of the same type. It depends on the nature of the field, in which the work is performed, and the type of natural assets the person is handling.

For instance, even though taking possession is in a way a form of work, by the general theory it differs according to the type of assets over which the individual acquires control. Taking into possession firewood from the forest or taking some rocks into possession from desert land, is a work in the nature of utilization. But taking possession of land or acquiring control of a mine or a spring is not a form of work, but is a manifestation of force and domination.

In order to demonstrate this we may imagine a man living all alone in an immensely vast area of land rich with springs, mines and natural resources, far from any competing claimants and study his behaviour and the type of possession he is likely to pursue. Such a man will not come to think of taking possession and control of a large area of land and whatever mines or springs existing therein to protect them from the encroachment by others. He will find no competing claimants and will derive no benefit from such move, as long as the land is at his service and disposal for all the time with no competitors. He is likely to only benefit from the land by utilizing such part of the land at a level that corresponds to his power and ability to cultivate and work on.

While it is unlikely that he will think of securing possession of a large area of land, he will always strive to secure possession of water by transferring it to his container - which he will carry to his shanty – and of the firewood to light fire upon. Thus taking possession of the land and other similar resources of nature will have no meaning when competition is non-existent. Rather, rehabilitation will be the only work the individual will carry out under such circumstances in respect of the resources of nature in order to derive benefit therefrom. Taking possession of the land will only have a value when there is competition for the land.

In such environment, the person will set out to secure possession and control of a large area of land and place it under his protection to prevent encroachment by others. This means that taking possession of land and other natural resources is not a work of economic nature in utilizing and benefitting from the land. Instead, it is an act related to dominating natural resources as a measure against competing claims.

Contrary to that, taking possession of firewood, rocks and some quantity of water is a work of economic value in the nature of utilization of resources, instead of seeking domination by force. It is because of this that we saw that the ‘lone man’ pursues this kind of possession, free of any motive or incentive to use force or violence.

On this basis, we can consider acquiring possession of natural assets such as lands, mines and springs as works in the nature of domination and exploitation, which have no value in the theory. But in the case of movable objects from among the natural assets – such as firewood, or rocks or a limited quantity of water – we may consider acquiring possession as work related to the utilization of these resources, which is the only source of the entitlement and rights in respect of natural assets.

From this we may derive a conclusion that the economic character of the work is a necessary condition that gives rise to the entitlement and rights. Thus any work will not become a basis for the entitlement and ownership of a property unless it is related to utilizing and benefitting from those natural resources.

The Theory Differentiates Between Works Of Economic Character

Let us take the work related to utilizing and benefitting from those resources - which bear economic characteristics - in order to examine the standpoint of the theory in respect of its appraisal of different type of works, and the kind of rights established by works of economic nature. In this area, we only need to pursue the second and the tenth points of the preceding section on the valuation of labour in the theory, in order to know that the Shari’ah does not always confer upon the individual the right and ownership of natural resources comprising land, mineral deposits and springs based merely on individual’s work related to utilizing and benefiting from the resources.

For instance, from the second point, we see that by carrying out (the work of) tillage of a cultivable land, the individual does not gain that same right earned as that by carrying out the work of reclamation of a wasteland. We also observe from the tenth point that the utilization of the land by taking it for pasturage does not confer upon the herdsman an entitlement to that land, although his making use of it as a pasture is an act of utilizing and benefitting from the land. Here, there is a difference to be elucidated between land reclamation and the works related to it, and the usage of an already fertile land for cultivation and pasturage, although all these works appear to be of economic nature and similar to utilization. With this finding, we will be able to make more refined differentiation between them, in determining the general theory and all its aspects.

How Entitlements Are Established On The Basis Of Work

The difference is actually closely connected with the basis on which the theory confers entitlements on the basis of work - in relation to the natural assets - to a person. In order to fully understand the theoretical difference between works that are of economic nature, it is necessary for us to acquaint ourselves with the theoretical stipulation for the entitlements, which are connected with the work. Also, we need to see how, and to what extent the work plays its positive role in the theory. Further, we need to know the principle, by which work becomes the basis that gives rise to special right for the individual concerned. If we become acquainted with this principle, we will be able to differentiate works related to utilization.

We may summarize this principle in light of the completed upper structure of the theory in the following manner: The worker appropriates the product of his work, which he has produced by spending his efforts and energy on the natural asset. This principle is applicable to all types of work related to utilization and exploitation of natural resources, without any differentiation between an operation carried out for the reclamation of an infertile land, or the excavation of a mine, or the extraction of water, or the cultivation of a land that is naturally fit for cultivation, or using that land as pasture for livestock. Each of these activities is work, and the worker is entitled to reap the fruits and to appropriate the products of his work with those respective natural resources.

But the right and entitlement of the worker to own the product of his work – and the labour he had spent on the natural resources - does not mean that all these works are alike in terms of their outcomes such that the resulting rights are identical. On the contrary, the products from these works differ from one another and on this basis and the resulting rights are also different. The rehabilitation of an infertile land, for instance, is an activity the person carries out on a piece of barren land which is unfit for utilization and agricultural production. He has to remove the layer of rocks from the surface and fulfills all the conditions necessary to make it suitable for utilization and agricultural production. In this way, by virtue of his reclamation efforts, he has developed a new condition for the land that did not exist before.

But this is not the cause for the existence of the land itself. The reclamation work does not create the land. But the usefulness and benefit (of the newly conditioned land) was brought about by the labour and work of the person who reclaimed the land, since it was his reclamation efforts that renders the previously barren land fit for utilization and agriculture. Since this usefulness was not present before its reclamation – and actually resulted from the reclamation activity - the worker becomes the owner of this utility - according to the general theory - it being the product of his labour and work.

His ‘ownership’ of the utility leads to his right to prevent others from taking it away from him or of depriving him of this entitlement by seizing the land from him, or by interfering with his privilege to benefit from the land that he had earned by his strenuous labour and lawful work. Because of this, the person - having reclaimed the land - becomes more deserving than others so that he is enabled to benefit from the utility he has produced.

This right of priority is all that he has over the land. Thus we learn that the right of the person to the land he has reclaimed is established as a protection from others damaging the product of his work and obstructing him from enjoying the utility he has developed by lawful labour and work.

The uncovering (and utilization) of mineral deposits and the excavation of underground springs are identical to reclamation of an uncultivable land in this respect. The person who carries out the development activities creates the utility of part of the nature with his efforts and thus is entitled to appropriate it as a fruit of his labour and toil, and it is not allowable for others to deprive him of the utility. A similar right is applicable for individuals who develop access to mineral deposits and springs. There are however differences, which we shall examine in a while.

Let us now consider works related to cultivation on a naturally fertile land or making use of the already fertile land for pasturing of animals. Even though these are works in the nature of utilization and agricultural production in relation to natural assets, they cannot justify the granting the farmer or the herdsman a right and entitlement to the land because his efforts neither create the land itself, nor do they bring about a usefulness or benefit like that resulting from work of reclamation of an infertile land. The farmer or herdsman grows the crops or animals by way of his work on the land. This justifies only his appropriation of the farm products or the livestock, not an entitlement to the land itself.

The activities related to reclamation create a new utility to be derived from the land or the mine or the spring, which did not exist before its reclamation. So the person appropriates the utility and through his appropriation of this utility he acquires his right to the natural assets he has rehabilitated or developed through his work. So, for the land that is naturally cultivable or the fertile land on which the herdsman carries out pasturing activities, their utility for cultivation or pasturage has existed thereon before. These did not result from any specific work. The only thing that resulted from the agriculture work, for instance, was the farm yield and he has special right over the yield for it is the product of his work.

In light of this we can deduce a new condition in respect of work that confers special right over natural resources. We have already learned that the first condition - that needs to be fulfilled - to earn a special right to natural assets is that the work has to be of economic nature. We will now deduce the second condition. It is that this work produces a new circumstances or a definite new utility that the worker appropriates and through it he acquires his right to the natural asset.

From our findings on this connection between the right of the person to the natural resource and the utility that his work has brought about, it logically follows that the right of the person ends when that utility - which his work has produced – ceases to exist because as we have learned his right to the natural asset stands on the basis of his appropriation of that utility. This is all that we find from the fourth and fifth points of the above section on the upper structure.

Let us now consider the works of reclamation which confer upon the working person special rights to the respective natural resources - such as reclamation of the uncultivable land, uncovering of mineral deposits and developing access to an underground spring – and examine them in detail. We see that these works differ in terms of the resulting rights and entitlements, after we have examined the difference between them and work related to agricultural use of the land. This also became clear after we learned before this the difference between works of economic and productive nature and those related to domination and exploitation.

When we re-examine the upper structure (of the theory) whereby the right to land are established on the basis of reclamation works, we find that it differs from the rights accruing from other works similar to reclamation such as that of uncovering and developing access to a spring. We knew that is not permissible for any person to carry out cultivation on a land reclaimed by an individual without prior permission by the first person, as long he continues using the land. On the contrary, we find that the person who uncovers a spring earns the right to its water only up to the quantity that commensurate with his need, and it is allowable for others to derive benefit from the spring from the surplus quantity that is in excess of his need.

It is therefore necessary to seek an explanation from the theory as to the basis for the difference between the right resulting from reclamation work for a land and that from development work for a spring. We also need to find the reason as to why it is permissible for any other individual to avail himself of water from the spring, when it is in excess of the need of its owner, while it is not permissible for anyone to use a land - reclaimed by an individual - for cultivation without his permission, even when he does not actually employ it for cultivation.

Indeed the answer is readily available from the information we have discovered from the theory. The person who reclaims the land becomes first of all the owner of the product of his work, which is the right to benefit from utilization of the natural resource. His ownership of the utility imposes upon others the duty to refrain from depriving him of its benefit by seizing it from him. So it is by this reclamation that he obtains the special right to the natural resource. This outcome in its entirety applies in the case of all natural assets - including lands, mines and springs - for the rights that result from reclamation of these natural resources are similar.

The permission for others to consume the surplus water that is in excess of the need of the first person that uncovered a spring, does not arise from a difference in the nature of the right. Instead, it arises from the nature of the resource. The first person that uncovers a spring is not deprived of his ownership of the utility - which he receives as a result of his excavation work and uncovering of the spring - merely by the presence of another person sharing the benefit from the surplus water, because having a few more persons consuming it does not usually drain underground water. As such, the first person still preserves his right to enjoy the benefits of the utility he has created. Sharing with others does not make him lose his benefits.

In contrast to this, the situation for the individual who reclaims an uncultivable land - and acquires the right to the use and cultivate it – is different. By its nature, a piece of land cannot be cultivated by two people simultaneously, without having the benefits for each person impaired. If a second person were to cultivate the land reclaimed by the first person, that would amount to robbing the first person off the utility he had earned by his reclamation efforts. When assigned to a specific crop or agricultural use, the same piece cannot be utilized for another at the same time. In this way we learn that utilizing and benefitting from a reclaimed land is allowed only for the person who reclaimed it. Allowing another person the same right would amount to impairing the right of the first person to benefit from the utility he created by his work and labour.

In the case of the spring, allowing another person to consume from the water source - from the surplus quantity - does not amount to impairing the right of the first person in benefitting from the utility he has created. By its nature, the spring can satisfy the needs of many people at the same time. Hence it is the difference between characteristics of the natural resources and the respective modes of their utilization that is the basis for whether or not the right to benefit from each shall be exclusive.

In the case of a mine, Islam has allowed every individual to avail himself of the benefit to be derived from it in a way that it does not interfere with the operation of first person that that uncovered it and developed the access to its mineral deposits. By carrying out excavation work on another front of the mine - or to operate from the same pit that the first person has dug up, in case the mine is large and so rich with mineral deposits - another person can operate without depriving the first person of his rights to benefit from the opportunity he had developed. Hence the general criterion for allowing another person in sharing the opportunity for natural resource – developed by the first person – is whether or not that permission will impair the right of the first person to benefit from the source he had developed.

The Basis For Rights In Relation To Movable Properties

So far we have confined our discussions to works in relation to (immovable) natural assets like lands, mines and springs of water. In order to cover the full content of the theory, we must now examine in detail the application of the theory to those natural assets that are movable, and explain the difference between them. We shall also discuss the theoretical reasons for these differences.

The only thing we have come by - as to the standpoint of the theory - is that taking possession of these movable assets from nature is considered a work of utilization that bear economic characteristics. This is unlike taking possession of immovable natural assets like lands, springs and mines, which are in the nature of domination and exploitation as the act does not bear economic features.

We have used the hypothetical example of an individual to demonstrate the difference between taking possession of the natural resources and acquiring possession of movable assets from nature. Taking some water into one’s custody, or some woods from the forest, or any other movable resources from nature is considered primarily as work related to utilization and deriving benefits from those resources. Hence from the perspective of the theory that recognize only work of economic characteristics, taking possession of movable natural assets is permitted.

However, acquiring possession is not the only work that the theory recognizes and considers to be of value in the context of movable assets. There is another type of work that resembles reclamation work in relation to natural resources. It is the work of creating utility of benefit from movable assets (in nature) by overcoming their natural resistance that constitutes obstacles in benefitting from such assets. An example of this is hunting of wild animals. The effort of a hunter who overcomes the ability of the animal to resist capture is a work whereby he creates the utility of the animal. Just as the person who rehabilitates a piece of uncultivable land brings about the usefulness of the land and enables benefit to be derived from the land through his reclamation works, overcoming the hindrances and subjugating its soil to cultivation.

Hence taking possession of an asset from nature and doing works that brings about usefulness of another natural assets are two types of work that bear economic characteristics in the context of movable resources. However, the creation of a new utility to make available the benefit from the movable assets, stands apart from merely taking possession. Creating new utility is a constructive role while taking possession - from the economic point of view – is not because it merely involves acquiring control over the moveable asset. It does not add value by bringing about a new utility, or by making available a fresh benefit. When you take possession of a piece of stone on a public road or extract water from a well, you do not develop new usefulness and convenience.

The rock or the water was already lying there available to anyone who was in need. By merely taking control over it and your keeping it in your custody for your need, you have not added any value. Transferring the rock to your house and the water to your container do not create a new element of usefulness, in terms of the benefit available in a general form. This (physical) transfer only facilitate your utilization of the rock or water, but it does not overcome any general obstacle or confers on the assets a quality which results in greater capacity to be benefited from in a general form, as in the case of reclamation of a land. In the case of the latter, the deficiencies of the land were overcome and the works confer upon it a new capacity to contribute to human life.

On this basis we can compare between hunting and similar activities that brings about a new utility in movable assets, with works like reclamation of lands. Hunting and land reclamation are similar in one thing, which is the creation of a new utility that was not available before. In the same way, we may also compare taking possession of the movable assets in nature with cultivation of an already fertile land. Cultivation of an already fertile land does not create a new utility of the land but is only a work related to the utilization and deriving benefit from the land. This is similar to extracting water from a natural spring1.

This differentiation between taking possession of a movable natural asset and works that bring about utility or convenience - like hunting - does not mean separation of one work from the other. More often, acquiring possession of a movable asset is associated with works related to the creation of a new utility, such that all these works become a single operation. So in practice, one is unlikely to be found separate from the other.

In the case of certain movable natural assets – such as fishes in a sea or a deep overflowing river – there are significant obstacles in acquiring them. If the fisherman successfully secured them in his net, he may be said to have acquired possession and thus have created utility as he had overcome the barrier to utilizing them. Likewise, his retention of the overflowing water of the river means his taking possession of the water, because he develops utility and convenience by holding and preventing it from flowing back to the river.

It may also happen that the person performs a work that brings about a new utility in relation to the movable asset and overcome the natural barriers, without being able to actually secure possession of the assets. For example a person throws a stone at a bird in the air thus disrupting its flight and bringing it down. The bird falls at a remote spot that the person is unable to reach. Obviously a new utility was accomplished by this operation because some barriers have been overcome but the bird has not come into his possession. The ownership complete only if the person pursues it and actually secures possession.

An individual may take possession of the movable asset without actually performing the work related to creating a new utility, like when the movable asset is by nature readily usable - without any barriers – like taking into possession water from a spring or some rocks from the earth. Hence acquiring possession of a movable asset and creating new utility for such asset are two different types of work. They may be combined into one single operation and they could also be separate activities.

Let us now explain the second type of the work, which creates a new utility in the case of hunting as a good example of the work that brings about new utility in relation to movable assets. In order to examine both these types of work, we will deal with each separately and consider the theoretical ground to discover the prescriptions specific to each, and the nature of the rights that result from each.

The Significance Of Productive Work In The Theory

When we examine the act of hunting separately from the act of acquiring possession, we saw that it is a work, which brings about a particular utility. It is logical that it may confer upon the person that performs it the right and title to ownership of the utility which has resulted from his efforts, in the same manner that a person who rehabilitates a piece of land earns the ownership of the utility that results from his work based on the principles of the theory we discussed earlier. It confers upon every worker - for his work in respect of natural resources - the right of ownership to the product that results from his work.

As for the person hunting the bird, he gains entitlement to the bird that he has brought to the ground, even when he does not secure actual possession of the bird. This is as indicated by the application of the texts of Shari’ah2. Hence it is not allowable for another person who reached the spot before him to take advantage of his efforts and take possession of the prey. That would result in the depriving the first person of the utility and convenience he had developed from his hunting work.

The right of the first person to the bird he has captured does not depend upon his securing possession or actually starting to benefit from that utility. By merely accruing the utility he has created, he earns the right irrespective of whether or not he intends to actually benefit from that opportunity and whether or not he immediately secures possession of the bird. The bird hunter is like the worker who does reclamation work on a piece of land. Just as it is not allowable for any other individual to utilize and cultivate the land, it is not allowed for any other person take possession of the bird unless he forgoes his right. But if the grounded bird, which has be disabled by the hunter’s attack, regains its strength and recovers from the blow and flees before he could secure possession, his claim comes to an end since this right depends on the right and claim to the utility which he brings about by his act of hunting. This utility is ceases to exist when the bird flies away3 ().

In this respect it also resembles the worker who is entitled to a piece of land a similar basis. He loses his right once that land reverts to an uncultivable state, out of his neglect. The theoretical ground in either case is the same. In both cases, the right of the individual to the assets is linked to his appropriation of the utility that results from his work. Therefore when that utility ceases to exist and the effect of his work vanishes, his right to the assets comes to an end.

Thus, when hunting is viewed in respect of its prescriptive rules - independent of possession – it resembles the works related to reclamation of natural resources. This resemblance, as we have seen, is because it is the same theoretical basis that grants the right to both the bird hunter and the land worker.

The Significance Of Possession In Respect Of Movable Assets

The prescriptive rules for acquiring possession differ from those for pure hunting. Because of this, we find that when the bird hunter has become the owner of the bird he hunted and captured, it is his right to recover the bird when it flies away from him. If another person then shoots the bird, he (the second person) has no right to retain it. In fact, he must return it to the first person, for the right based on the authority of possession is an immediate right in the sense that the possession was the immediate reason of ownership of the bird. Possession is not connected with the ownership of a specific utility such that ownership ends with the end that utility.

This is the difference between acquiring possession and other operations that we have come across. Thus, hunting is the basis for the bird hunter’s ownership to the utility he brought about. His right to the bird stands on that basis, just as reclamation work is the ground for the worker’s appropriation of the utility which accrued from the reclamation works he did on a piece of uncultivable land, as a result of which he earns his right to the land he had rehabilitated. As for possession of movable assets, mere possession in itself is the original and immediate basis for their ownership.

This difference between acquiring possession and other works leads to an inevitable conflict at the theoretical level. The issue is this: the right of the individual to the natural asset he reclaims or to the animal that he hunts is established on the basis of his work - which is the right to enjoy an advantage from the utility he brings about. On what basis then is the right granted to the individual who find pieces of rocks by the roadside and takes them into his possession? Also, on what basis is the right granted to the person who takes into his possession some water from a natural lake? In both cases, the act of acquiring possession did not bring about any new general utility in relation to the asset, as hunting and reclamation works would.

This issue can be resolved this way. The individual does not earn entitlement to ownership right to the utility that resulted from his work. Instead, he earns entitlement to utilize the asset and derive benefits from it. Just as it is a worker’s right to enjoy the fruits of his work, it is likewise his right to enjoy the advantage, which Allah the Exalted with His grace provides him. For instance, in case of underground water, if an individual finds and uncovers the water source by excavation, he had brought about a convenience in utilization of the water. So he deserves to gain entitlement to its ownership.

But if water accumulates on the surface of the earth in a natural way and the benefits can be derived from the water source without the effort of the man, it will be necessary to allow everyone to enjoy its benefit, which is readily available in nature. When a person takes with his container some quantity of water from such source, it can be said - in a theoretical sense - that he had carried out a work relating to utilization and deriving benefit from it, as described by us in the early part of the discourse. As long as it is the right of every individual to enjoy the resources that nature presents before man, it is only natural that the person be allowed to take in his possession a quantity of water found on the surface of the earth from that natural source. Taking some water into his possession constitutes an act of utilization, not a work related to domination and exploitation.

If the individual retains possession of that quantity of water, it is not allowable for another individual to contest his ownership of the water and seize it from him. The theory holds that taking into one’s possession of a quantity of water or such other movable assets (from nature) is a work of utilization and deriving benefit, so long as it is a continuous possession. He is entitled to continue deriving benefit from the asset and there is no justification for another person to contest his right. Thus a person continues to enjoy his right to the moveable asset in his possession, so long as the possession is continuously de jure 4.

Thus it is clear that the right of a person to the quantity of water that he draws into his possession from a lake or the pebbles he takes from the public highway does not rest on his appropriation of the general utility which accrues from his work, but instead on the basis of that an individual’s pursuit of benefitting from that assets in nature, by way of acquiring possession.

In light of the above, we are able to add a new principle in the theory to the preceding principle, which holds that every individual becomes the owner of the product of his work. This new principle is that the pursuit of an individual deriving benefits from a natural asset, gives him a right to it so long as he continues to do so and because in the case of movable natural assets taking possession is a work of utilization.

Generalizing The Theory On The Principle Of Possession As The Basis For Ownership

This principle is not only applicable to movable natural assets but also to other resources from nature. If a person carries out a work related to land utilization while cultivating a naturally cultivable land, his agricultural work constitutes a work of utilization. He gains a right to the land on that basis, and that right restricts others from interfering with him and seizing the land from him, so long as he continues with his works to benefit from it.

But this does not mean that his mere possession of the land is sufficient to earn that right, in the same way taking possession of a quantity of water does. It is different because taking possession of a piece of land is not a work of utilization and deriving benefit. He benefits from the land - which was already cultivable by nature - by way using it for cultivation activities. So if the worker carries out agriculture work on such land and derives benefit from it, another person is not allowed to seize the land from him so long as the worker continues his work of cultivation. The other person has no more right to the than the first person who actually makes profitable use of the land.

But if the first individual discontinues his productive agricultural works and stops deriving benefit from the land, his right to continue with the possession comes to an end. In that situation, it becomes valid for another individual to utilize the land and benefit from it with fresh cultivation activities.

We may notice the difference between the two principles at the point where the first person ceases to utilize and derive benefits from the land. The right of the person - which stands on the basis of his continued profiting from natural assets - vanishes simply by him ceasing to derive benefit from the land, while the right which stands on the basis of bringing about a new utility and convenience - with the necessary efforts - lasts as long as the utility remains intact and the worker maintains the results of his efforts on the land.

Summary Of The Theoretical Deductions

From our examination of the general theory of the distribution of the factors of production, we can now infer two basic principles of the theory.

The first is that the worker who carries some work on natural resources becomes the owner of the product of his work. It is the general utility of the benefit derived from that natural asset and the result of the worker’s appropriation of ownership of this utility that constitutes his right to the property itself. This follows from his assumption of ownership of the utility brought about by his work. His right to the property is linked with his ownership of this utility. Thus, if the opportunity and convenience he has brought about ceases to exist, his right to the property ends.

The second principle is that the pursuit of deriving benefit from any of the natural assets confers upon the relevant person a right of priority, whereby other persons are not permitted to seize the asset from him so long as he continues to use it and benefit from it and carries out works related to its utilization. No other person shall have priority over him in connection with that asset. The asset may not be forcibly taken away from him and granted to other persons.

The prescriptive rules which regulate the operations of reclamation and hunting are established on the first principle, while the prescriptive rules for acquiring possession of movable assets - which are readily available in nature - in order to derive the benefit from them, rest on the second principle. Thus, the creation of a new utility with respect to natural resources and continuous activities to derive benefits from them are the two primary sources of special rights to natural assets.

It is the economic characteristic of the works, which is the common criterion of these two sources of right to natural assets. The creation of a new utility and deriving benefits on the basis of utility that is naturally available, are considered to be works of economic character and not works related to domination and exploitation.

Observations

A Comparative Study Of The Islamic Theory

We have seen that Islam permits the acquisition of special rights to the natural resources by an individual, within the limits laid down by the general theory on the distribution of the factors of production. The theoretical determination of these rights differs from those in the capitalist and Marxist theories.

In the capitalist doctrine, appropriation of all the assets in nature is permitted to everyone on the basis of the principle of economic freedom. The individual may regard all assets, which he holds under his control as his property unless that comes into conflict with the freedom of ownership bestowed upon other persons. The permitted scope of each individual’s private ownership is unlimited except to the extent of safeguarding the freedom of ownership of other individuals. Thus the individual earns legitimacy for his ownership on the basis that he is a human being and that he does not interfere with the freedom of others.

But the Islamic general theory of distribution of factors of production - which we have studied - does not recognize the freedom of private ownership in the way held by capitalism. Instead it considers a person’s right to ownership of the natural resources as connected with his ownership of the product of his labour or his continuous utilization of the natural asset in deriving benefit from it. Therefore his right to the asset expires when both of these two factors cease to exist.

Capitalism regards special private rights to natural resources as an expression of individual freedom, which one enjoys under the aegis of the capitalist system, while in Islam it is an expression of individual efforts or labor in his pursuit to derive benefits from nature.

Marxism, however, believes in the revocation of every type of private ownership over natural resources and all other factors of production. It calls for the release of all those factors of production from the bondage of private ownership, because there is no longer any justification for that ever since history entered the modern industrial age, which was a particular stage that foreshadowed mechanized and mass production in the present capitalist age. But the Marxist’s belief in the need for this annulment of private ownership over natural resources does not mean, from doctrinal point of view, that the private proprietorship in Marxism is totally unjustifiable. It only interprets its doctrinal belief that private ownership has exhausted all its relevance and goals in the evolution of history and as such there remains no longer any room for it in the modem history, after it had lost its justification and had become a cross-current.

In order to make a comparison between the Marxist and Islamic theories on private ownership, it is necessary for us to know the justifications for private ownership in the Marxist theory, and how these have become inapplicable in the modern age5. Marxism holds the opinion that raw natural assets, by their nature, have no exchange value. They have only usage values. The exchange value for a raw natural asset emerges only as a result of investing human labour. It is the human labour that creates exchange value in these assets. The raw materials that are in their natural form and are not upgraded by human labour have no value from the viewpoint of trade.

This is how Marxism links human labour with the exchange value and determines that it is the worker who confers an exchange value on the assets that he pursues with his labour, proportionate to the amount of the labour he spends on it. In a similar way, the theory links exchange value with ownership. It confers upon the individual who created the exchange value - with his labour - ownership of that asset and entitlement to enjoy the value that he brings about. Hence according to Marxism, the person’s ownership of that asset is justified by the addition of exchange value as a result of the labour he has spent on it.

Thus based on this theory, a person earns the right to ownership of natural resources - and the natural factors of production - if he is able to invest some efforts and thereby confers an exchange value on those assets. In light of the Marxist theory, this ownership results from labour and not that of the natural resources independently.

But this subject - which the worker now becomes the owner of - is not the convenience or utility that results from labour, which we saw in the Islamic general theory on distribution of the factors of production. Instead, in the view of Marxism, the exchange value is generated from labour and therefore it is the worker who confers upon the natural asset a specific value and he thus becomes the owner of the complete value of the asset.

Erecting the justification for private ownership on this basis, Marxism states that this ownership continues to be legitimate until the world entered the age of industrial production, whereby those who own resources and factors of production employ those who do not. The latter are paid wages while the profits are handed over to the former.

The value of these profits will soon become proportionate to the exchange values of the natural resources or factors of production. The owner will have full right to these resources and factors of production because his right over them is connected with the value of the product of his work on the natural assets, as long as he extracts the value - embedded in the asset - in the form of profits which it has generated. Thus, according to Marxism, private ownership loses its legitimacy and becomes invalid with the advent of the age of capitalism or hired labour.

This idea which links worker’s ownership with exchange value, makes room for another worker if he works on the asset, to become the owner of a new value that results from his work. Let’s consider the case of a man who goes to the forest and extracts some woods. He does further works on them to make some wooden boards. Then another man comes. He makes bed from the boards.

Each one of them becomes the owner of the exchange value that results from their respective works. Therefore, Marxism considers that it is the hired worker in the capitalist system who is the owner of the entire exchange value that the raw material gains through his work, and that the owner of the materials - taking part of this value in the name of profit – has robbed the worker.

Value is linked with work and ownership but only within the limits of the value that results from the owner’s work. The Marxist justifications for private ownership can be summed up in these two propositions.

First, exchange value is linked with work and results from it.
Second, the ownership by the worker is linked with the exchange value that his work brings about.

Islam’s stand differs from Marxism in both these propositions. As for the first proposition, which connects exchange value with work - and makes it the sole basic criterion - we have examined this in detail in our discussions earlier this book. In that discussion, we have proved that exchange value does not emerge primarily from work. We have also repudiated the basis of all the upper structure that Marxism has built on this proposition6.

As for the second proposition which links individual ownership with exchange value, it comes in conflict with the trend of the Islamic general theory on distribution of the factors of production. In Islam, a person’s rights to natural resources stand on the basis of his ownership of the product of his work. For instance, a worker who works a week to rehabilitate a piece of land, becomes its owner through his one-week labour, not through the exchange value which his work of the week had produced, as is held by Marxism.

What the worker becomes the owner of - for the work done by him on a piece of land, which he reclaims - is the utility of improved condition that he has brought about on that land. It is through his acquiring ownership of this utility that his special right to the land itself is born. As long as this utility exists, his right to the land will be deemed to remain and it will not be legitimate for another person to take possession of the land and spends fresh labour thereon even if the fresh work adds to exchange value, since the advantage of the utility is the property of the first individual and no other person is allowed to interfere in his work.

This is the key difference - on the theoretical level - between the Marxist and the Islamic principles. The special right, according to the Marxist view, leads to the ownership of the exchange value that the land has gained because of his work and nothing more. According to the Islamic view, the worker’s ownership results from of the actual utility of the land that his work has brought about.

In other words, the Islamic theory holds the principle that the special rights to the natural resources stand on the basis of work and that the worker earns ownership of the actual product of his work reflects while the Marxist view holds the principle that the exchange value of the natural resources arise from the work and that the worker’s ownership is limited to the exchange value that he has created.

The main difference between these two principles is the source of all the differences that we find between Islam and Marxism on income and wealth distribution.

Land Tax (Tasq) And Its Theoretical Explanation

We find from the upper structure a specific subject that shows that it differentiates land from other natural resources. We need to examine this and seek appropriate explanations in light of the Islamic general theory on distribution or its nexus with other economic theories.

This subject is on tasq (a fixed land tax or return) that the Shari’ah has allowed the Imam to levy on an individual when he reclaims a land and derives benefit from it. It was recorded in a sound tradition and in some juridical texts of ash-Shaykh at-Tusi that if a person reclaims a barren land, there is a tasq on it (its rent), which he has to pay to the Imam. The issue is the justification for tasq and why is it that land, among the many types of natural resources, is singled out for this tax? Why is it that individuals who work on reclamation of other natural resources are not required to pay a similar tax from their revenue?

Tasq can actually be explained doctrinally from the theoretical aspect on two bases. The first is on the basis of the general Islamic economic theory on distribution itself. Tasq is actually a rent that the Imam imposes on the (use of) land because it is part of anfal. In addition to that, the Imam employs it (the proceeds) in the interest and good of the society. We may equate the obligation of the owner of the land to pay the tasq (on the land they have reclaimed) to the obligation of the owners of mines and springs (on the resources they have reclaimed) to allow access to others to extract the materials – minerals from the mine or water from the spring - in excess of their needs as long as it does not interfere with his right to the mine (or the spring).

If we put these together, we will have before us a new principle that confers upon the society a common right to benefit from assets in nature, as it is generally made available to serve human need, as stated in the Qur’an:

“He created for you all that is on the earth.” (2:29).

This common right of the society does not lapse with the natural resources coming under the right or entitlement (of some persons). Instead, the Shari’ah determines the method for the public to derive benefit from these resources, in a manner that does not interfere with those rights. In the case of a mine or a spring, others are permitted to derive benefits in a direct manner, since another individual is free to extract mineral deposits or water if he operates from another side.

Likewise, in the case of a spring, another individual has a right to consume water from the quantity in excess of the need of the first person that uncovers it. But it is a little different for land. Since by its nature it is not possible for two persons to benefit simultaneously, tasq is instituted whereby the Imam has to spend the proceeds for the good of the society. Indirectly, the public benefits from the land despite it having come under the rights and entitlement of the person who reclaimed it, while others are prohibited from benefiting directly from that land.

Second, we may explain tasq outside the general theory on distribution. It can be viewed as a tax levied by the state in pursuit social justice. When we later study anfal and its social function in Islamic economics, we will see that the main object of anfal in the Shari’ah is to assure social security and to maintain a general economic equitability in the society. So long as tasq is regarded legislatively as a part of anfal, it is reasonable to regard it as a tax arising from the general theory on social justice and those aspects connected with social security and economic equitability.

Land was singled out for the application of this significant tax because of its role and importance in the economic life. The Shari’ah imposed this tax to safeguard the Islamic society from the dangers of private ownership of lands - the miseries and the ordeals experienced by the non-Muslim societies - and to shield the Islamic nation from extreme disparity, misfortune, conflicts and the far reaching consequences, brought about by monopoly over lands. These are obvious from historical observations. On this basis, tasq resembles ‘khums’ (one fifth tax) which is levied on minerals and deposits extracted from mines.

In conclusion, having advanced these two theoretical explanations of tasq, it is possible for us to replace each one with the other by bringing in a more broad-based and inclusive theory so that we can explain tasq as a tax, which the Imam is permitted to impose to enhance social security, maintain social and economic equitability and protect the needy members of the society.

The objectives and the desirability of the tax are self-explanatory. It is the duty of the members of the society with a superior economic position – including those who acquire possession and cultivate reclaimed lands and those who benefits from other natural assets - to discharge their obligations to the public and contribute towards public interest and aid the poor.

Interpretation Of Ownership In Islam - An Ethical Perspective

We have so far examined ownership and special rights in light of the general theory on the distribution of the factors of production, largely the natural resources. The discussion was purely from the perspective of economic doctrine. In the course of the discussion we were able to advance a theoretical interpretation of ownership and special rights reflecting the viewpoint of the Islamic economic doctrine.

We now intend to interpret ownership from the perspectives of Islamic ethics. By this, we mean a broad-based description of the ideal conception, which Islam has specified for ownership - its role, objectives and the efforts so that the distribution of ownership in the society is such that it becomes a force that influences the behaviour and conduct of individuals, in relation to their private rights over wealth, in a favorable way.

But before we begin, it is essential that we clearly explain the distinction between the interpretation of ownership from perspective of Islamic ethics and the doctrinal interpretation - which we have done earlier - from the economic point of view. In order to facilitate this distinction, we may borrow the meaning of khilafah so that we may compare it with the general theory of distribution, which we have used to explain the ownership rights from the point of view of the economic doctrine.

Khilafah adds to private ownership the mark of deputyship. It makes the owner a trustee of the wealth and a deputy (on behalf) of Allah the High Who is the Lord and Master of the world and all that exist therein. When this Islamic concept of the essence of ownership prevails in the mind of the Muslim owners, it becomes a force that could guide their behaviour - obliging the owners, binding him to the instructions, and prescribing limits on behalf of Allah the Mighty and Glorious, just as a deputy is always bound always to carry out the wishes of the person who appoints him to that position.

When we look into this meaning, we find that it does not explain the justifications of the private ownership from the perspective of the economic doctrine. That is because private ownership - whether it is on the basis of khilafah or any other principles - stirs up questions about its doctrinal justifications, raising issues like why is it that a certain individual is made a vicegerent or a deputy, and not another?

Therefore, deputyship alone cannot adequately explain (and justify) private ownership. We find the answer to this question in the doctrinal explanation for private ownership based on the Islamic economic theory. The position is clearly described, that the entitlement to rights are on the basis of work and it is the nexus of the worker with the product of his work. Thus we know that the prevalence of vicegerency or deputyship over private ownership is not sufficient for the formulation of theory of distribution (of wealth and opportunities), because it does not give an economic explanation of this phenomenon. It does establish a particular stance on ownership, that it is purely a vicegerency or a deputyship, instead of absolute ownership.

If this develops and becomes mainstream in the society, it will become a social force that will shape the behaviour of individuals. The society would embrace this perception of ownership and from this will evolve a sense whereby wealth inspires the minds of the wealthy. In that way the conception of khilafah becomes a dynamic (and favorable) force in the economic and social lives.

Then the interpretation based on Islamic ethics justifies the conceptions of ownership, which every Muslim usually comes across in Islam. They mentally and spiritually shape him, and his sentiments and conduct are decided in conformity with them. The basis of these is the concept of khilafah to which we alluded earlier. The assets belong to Allah. He is the real Owner and men are His vicegerents and His trustees on earth and all assets that exist on it. Allah the High says:

“He it is who made you vicegerents in earth, therefore whoever disbelieves, his unbelief is against himself; and their unbelief does not increase the disbelievers with their Lord in anything except hatred...” (35:39).

It is Allah the High who has conferred upon man this vicegerency and if He wished He could take it away from him.

The nature of the vicegerency imposed on man in respect of wealth he has been made deputy of is such that he must comply with those instructions from the one who has granted him that deputyship. Allah says in the Qur’an:

“Believe in Allah and His Messenger, and expend of that unto which He has made you trustees. And those of you who believe and expend shall have a mighty reward”. (57:7).

Likewise, as a result of this (vicegerency) man will be accountable to the one who appointed him as trustee. He is answerable to the Master over the ways he uses his wealth and his deeds. Allah the High, says:

“Then We appointed you vicegerents on earth after them, that We might behold how you would behave” (10:14).

The vicegerency belongs to the society as a whole, for this vicegerency actually manifests itself in Allah’s creation of wealth on earth and placing them at the disposal and service of man. By man here, it means the public, which includes all of the individuals:

“He it is who has created for you all things that are on earth”. (11:19).

The forms of ownership are only modes that facilitate the society in carrying out of its responsibilities in respect of rendering the world prosperous and flourishing. Allah the High says:

“It is He Who hath made you vicegerents on earth. He has raised some of you in ranks above the others, that He may try you in that He has given you.” (6:165).

The conferring of ownership and ownership rights to some instead of others, and raising some in ranks above others as to khilafah is a type of test as to what is bestowed to the community and its ability to carry the responsibility and their motivation to strive and discharge their key duties of vicegerency. Thus in light of this, privately-owned assets become a vehicle for the society in discharging its affairs in relation to vicegerency and assume the mark of a social function as a manifestation of a general trusteeship, not that of absolute right and control as a principal.

There is a tradition reported on the authority of Imam as-Sadiq (a.s.) “Indeed Allah has bestowed upon you this abundance of wealth not to accumulate them but to direct it to the ends that He has directed you to”.

Since the khilafah (vicegerency) in truth belongs to the society and private ownership is a mechanism for the society in achieving the mission and goals of this khilafah, the society’s link is not cut off. The society’s responsibility in respect of the asset does not cease on its becoming the property of an individual. On the contrary, it will be obligatory on the society to protect the property against an owner who is intellectually-challenged, for it is not possible for such individual to be able to play his part as the khalifah (vicegerent). It was in relation to this that Allah the High says:

“And give not your property which Allah hath made means of support for you to those weak of understanding, but feed and clothe them therewith and speak to them words of kindness” (4:5).

He directed the address to the society, for the khilafah belongs to the society. The verse forbade handing over assets to those who lack the ability to understand and ordered the society to protect their properties and to spend out of those properties for their good. Despite the fact that it speaks about the properties that belong to those “weak of understanding”, it ropes in the society itself, it says: “And give not your property…” Herein is the indication that the khilafah principally belongs to the society and that the properties are owned by khilafah even if these are private properties that belong to individuals.

The later part of the verse that followed this part indicates the object of the khilafah and its mission, describing the property: “your properties which Allah has made means of support for you”. So Allah has made the property for the community - meaning that Allah has appointed the society as its guardian - not for the purpose of squandering it or keeping it idle, it but to discharge your duty in this respect and to benefit from it and preserve it. So if this purpose is not realized through an individual, then the society may be made responsible for discharging the duty7.

On this basis the individual is made conscious of his responsibility in respect of use and deployment of assets before Allah the High, Who is the real Owner of all of them. Likewise, he has been made responsible for his duties to the society too, because in reality, the khilafah belongs to the community and property ownership is only one of the manifestations and modes of that khilafah.

Because of this, it is the right of the society to disentitle him if he is incapable of making proper use of the assets because of his lack of maturity or intellectual capacity. The society can also prevent a mature and mentally capable person from using his property in a way that results in great harm, for instance if he uses his property for immoral or destructive purposes. The Prophet once struck on the hands of Samrah ibn Jundub and ordered his date palm be cut off and thrown away since he made it a means of evil, and told him: “You are a destructive person.”

When Islam gave private ownership the conception of khilafah, it divested wealth of all its psychological distinction and merit, which had become associated with it with over the passage of time. Islam also disallowed Muslims from viewing wealth ownership as a measure of respect and honour in the Muslim society and from attaching any value to wealth ownership in social interaction. In a tradition, reported on the authority of Imam ‘Ali ibn Musa ar-Rida (a.s.) it is taught that “One who meets a poor Muslim and greets him with salam different from the salam to a rich man, Allah will cast on him wrathful look on the Day of Judgment”.

The Qur’an has cast dreadful recrimination upon the individuals who set their level of respect and care for others with the measure of wealth and riches. It says:

“He frowned and turned away, because there came to him a blind man (interrupting). But what could tell thee but that perchance he might grow (in spiritual understanding)? Or that he might receive admonition, and the teaching might profit him? As to one who regards himself as self-sufficient, to him dost thou attend, though it is no blame to thee if he grows not (in spiritual under-standing). But as to him who came to thee striving earnestly, and with fear (in his heart), of him thou was unmindful” (80:1-10)”.

By this, Islam assigns private ownership to its place and reinstated it to its true position in the context of khilafah. It is incorporated in the general Islamic framework in a way that it is not allowed to be reflected in spheres other than its own specific field. Nor is respect and adoration accorded in relation to ownership of material wealth, since it is a khilafah and not a personal right.

The Qur’an has described the sense of private ownership in a sublime form. Upon reflection, the meaning reveals clearly to us that Islam views that any sense of distinction and any attempt at extending private ownership beyond its original sphere only come from a misunderstanding of its meaning, by wrongly viewing it as a personal right and not a khilafah which has its own responsibilities and benefits.

The most sublime form is the story narrated in the Qur’an about two persons, one of whom Allah had enriched with two natural orchards and (in essence) appointed him a trustee (astakhlafa) in respect of the wealth (Qur’an: Sura Al Kahf verses 34 to 42).

“(Abundant) was the produce this man had: he said to his companion, in the course of a mutual argument: ‘more wealth have I than you, and more honour and power in (my following by) men”. (18:34).

Believing that his high and elevated (social) position justified him adopting the high tone in which he addressed his companion:

“He went into his garden in a state (of mind) unjust to his soul: He said, ‘I deem not that this will ever perish,” (18:35).

By this denial of the responsibility and the nature of the ownership, he was preparing the factors of the devastation and destruction (of the wealth).

“Nor do I deem that the Hour (of Judgment) will (ever) come. Even if I am brought back to my Lord, I shall surely find (there) something better in exchange”. (18:36).

His companion viewed that it is a khilafah, which Allah has given him for him to discharge his duties. One should not have any feeling of pride, glory and arrogance.

“His companion said to him, in the course of the argument with him: ‘Dost thou deny Him Who created thee out of dust, then out of a sperm-drop, then fashioned thee into a man? But (I think) for my part that He is Allah, My Lord, and none shall I associate with my Lord. Why didst thou not, as thou wentest into thy garden, say: 'Allah's will (be done)! There is no power but with Allah! ' If thou dost see me less than thee in wealth and sons”. (18:37-39).

“It may be that my Lord will give me something better than thy garden, and that He will send on thy garden thunderbolts (by way of reckoning) from heaven, making it (but) slippery sand!- Or the water of the garden will run off underground so that thou wilt never be able to find it.’ So his fruits (and enjoyment) were encompassed (with ruin), and he remained twisting and turning his hands over what he had spent on his property, which had (now) tumbled to pieces to its very foundations, and he could only say, ‘Woe is me! Would I had never ascribed partners to my Lord and Cherisher!’” (18:34-42).

By compressing the significance of private ownership back to its original scope on the basis of the conception of khilafah, it is turned into a means not an end. Muslim who adopt this Islamic view in his spiritual and intellectual framework looks upon wealth as a means for the realization of an aim of the general khilafah and for the fulfillment of the various human needs – which are legitimate as opposed to greed, gluttony and the tendency to be dominant over others.

With respect of this view of wealth as an instrument or a means, there is a tradition from the Messenger of Allah (S) that “out of thy property nothing is yours save that which you consumest by eating or that which you wearest out by clothing yourself with it or that which you preserves by dispensing in the way of Allah”.

In another tradition he is recorded to have said “The servant of Allah says my property; my property, whereas out of his property that property is his which he has eaten up and consumed, has clothed himself up with or has given it and has saved as for the rest he will pass away and leave it behind for the people’.

Islam opposes the view that ownership itself is an end, by compressing its significance and meaning, and divesting it of all its distinctions other than its original sphere. Islam has also set up in line with that a positive action in order to oppose that view and has opened up before an individual a broader horizon compared to the limited scope based only on the customary material perspective. It is the longer distance compared to the short trip of private ownership that ends with death.

It gives Muslims the good news of gains of another kind. Gains that are perpetual, which constitute stronger incentives, inspiring those who believe in them to a greater cause. With this perception of wealth and ownership, acquisition of material gains is at times perceived as a loss. Likewise, sacrificing and relinquishing ownership - when it leads to a reward of a better nature – is perceived as a gain for the life hereafter.

It is clear that this faith in the reward - for spending wealth in cause of Allah - and the nature of the promised gains play a very favorable role in extinguishing the selfish motives in owning wealth, and in promoting the view of wealth ownership as a means instead of an end. Allah the High says:

“... and whatever ye spend from anything He replaces it, for He is the best sustainer”. (34:39).

“... whatever of good ye give, benefits your own souls; and ye shall only do so seeking the nearness of Allah. Whatever good ye give, shall be rendered back to you, and ye shall not be dealt with unjustly”. (2:272).

“... and whatever good ye send forth for yourselves ye shall find it in Allah’s presence”. (73:20).

“On that day every soul will be confronted with all the good he has done...” (3:30).

“And whatever good they do, they shall not be denied it, and Allah knows those who guard (against evil)”. (3:115).

The Qur’an has described gains and losses based on a perspective that is far broader than that the narrow capitalist view that is based purely on worldly measures, whereby wealth accumulation is desirable and foregoing wealth is associated with loss and poverty. The Qur’an has assigned this narrow capitalist view to the Satan, and says:

“The Satan threatens you with poverty and bids you to sordidness while Allah promises you with His forgiveness and bounties, and Allah is All- embracing, All-knowing.” (2:268).

Time Limition Over Ownership And Entitlements

The general theory that specifies the special rights also imposes, in a general way, a time limitation applicable to these rights. Each ownership and entitlement or right in Islam is limited to the lifespan of the owner of the property and he is not allowed to have an indefinite extension. Therefore, in Islam the individual does not have the right to decide the fate of his property after his death.

The fate of the wealth is determined by the law under the rules and regulations in respect of inheritance that governs the distribution of the personal assets left by the deceased among the relatives. In this respect Islam differs from the capitalist societies. The capitalist societies believe that the authority in respect of one’s personal wealth extends far beyond his own life. They invest him with the right of deciding the future course of his wealth after his death and of bestowing his wealth to anyone he wishes and in any manner he chooses.

This ‘time limitation’ in the Islamic system in respect of ownership rights is actually the outcome of the general theory on distribution of the factors of production, which is the basis of these rights. We have already learned that under the theory, ownership rights and entitlements are based upon two premises.

The first premise is the creation of utility or convenience in connection with a natural asset - that enables its productive use - by doing relevant reclamation (or developmental) works. Reconditioning or rehabilitation (of such natural assets) entitles a person to ownership of the utility, which he brought about as a result of his work. This gives him the right that disallows others from taking away that utility he had developed.

The other premise is the continuous productive utilization of a particular property. It gives the user a right of priority to the use of the property over others so long as he is using it productively. These two premises do not remain intact after his death. For instance, the utility that an individual creates by his reclamation works on a naturally uncultivable land is now impaired since his productive use has come to an end. Thus with his death, any productive use of the property by another person will no longer rob the deceased of his land. He is naturally deprived of the utility, in the same way productive utilization ends in the event of his death. The special rights lose their justifications stipulated by the general theory.

Hence time limitation for rights over privately owned assets, according to the Shari’ah law of inheritance, constitutes an element in the structure of the economic doctrine and is connected with the general theory on distribution. This time limitation is a provision under the negative limb of those laws of inheritance, which declare that the relationship of an individual with the personal wealth he owns, is discontinued upon his death. The positive limb of the laws of inheritance - which defines the new owners and regulates the distribution of the wealth among them – is not an outcome of the general theory of distribution of factors of production, but is connected with other theories of Islamic economics, as we shall see in the forthcoming discussions.

Islam clearly places a time restriction on privately owned assets, confining the ownership to the lifetime of its owner. Islam further forbids arbitrary wills in respect of such assets - as to its treatment after the owner’ death - except for only one third of the total wealth. The owner is permitted to decide on the treatment of only this one third of the wealth he owns. This does not contradict the fact that we learnt about the time limitation and its nexus with the general theory.

The legislative texts that point to this permission for the owner explicitly indicate that this permission is in the nature of an exception, established on the basis of a specific good. In a tradition by ‘Ali ibn Yaqtin, it was recorded that he asked Imam Musa (a.s.): ‘‘what portion of the property belongs to its owner at the time of his death?” “One third” replied the Imam, “and one third is too large a portion”.

There is a tradition on the authority of the Imam as-Sadiq (a.s.): “Will is for one fourth, and one fifth, which is preferably better than the one third”. It has also occurred in the tradition that Allah the High says to the son of Adam (man): I have granted you in respect of three things. I have kept concealed (your misdeeds), which the members of your family would have known, would it not have been buried you. I granted you ample (livelihood) then asked for a loan out of it, then why didst thou not advance it for a good thing; and I assigned to you one third portion at your disposal at your death then why didst not send it as a good in advance.”

Thus the one-third portion in light of these traditions is a right granted to encourage the owner to use it for others. He should be grateful and consider it a gracious gift that Allah has bestowed upon his servants at the time of his death. It is not in the sense of it being an extension of his rights beyond his lifetime. All these factors point to the fact that the permission for the deceased to bequeath one third of his property is an exception to the rule and it is an admission of the fact that we have already presented about the time limit and its nexus with the general theory.

The objective that the Shari’ah seeks by allowing this exception is to promote and enhance social justice, as such exception enables an individual - while he is bidding farewell to his worldly wealth and entering a new realm - to avail himself of the advantage of his wealth in a way that would benefit him in the new realm.

It is most probable that during the moments of his inevitable departure from this world, a Muslim’s flame of material and carnal desires have drastically diminished - a matter that prompts his thoughts about the alternative use of his wealth for his future in the afterlife, which he is preparing to migrate to. It is this kind of spending to which the term ‘khayr’ (a good) is applied in the above-mentioned tradition. In the tradition, God admonishes the person who does not take the opportunity to benefit from this right, by making a will (for other purposes), not realizing the reasons he is granted this right.

At the very time Islam urges to bequeath one third of his wealth, it has persuaded him to avail himself of this last opportunity for his own future well-being in his afterlife, by allowing this one third for the cause of public good and benefit, thus contributing to social justice and solidarity.

The time limitation of ownership over the wealth is therefore the fundamental law, and the permission in respect of the one third is only an exception prescribed for goals connected with other aspects of Islamic economics.

• 1. It may be observed here that I did not compare mubah water with a land that is naturally cultivable. But I have instead compared securing possession of water with the cultivation of a land naturally fit for cultivation because taking possession of the land is not a work of utilization and deriving benefit, as stated before. Taking possession of water is a work of utilization that bears economic characteristics similar to cultivation of the land that by its nature is already fit for cultivation.
• 2. Refer to Appendix XII.
• 3. Refer to Appendix XIII.
• 4. By “de jure”, we mean he keeps holding the position by legal right, without circumstances by which the nexus to the property is cut off like amnesia, loss and usurpation etc. The Shari’ah assigns in relation to a continuous possession the right of use, but orders return of the lost or usurped goods or property to the its rightful owner.
• 5. Here, by the Marxist theory, we mean the economic theory in relation to the Marxist doctrine and not the Marxist theory on interpretation and analysis of history (historical materialism). Private ownership is sometimes studied as a historical phenomenon. In this context, it is justified on the basis of the Marxist theory of history under the given condition of class conflict, mode of production and forces of production. At other times, private ownership is studied purely from the economic perspective in order to find its legislative justification, instead of the historical justification of its existence. On these occasions, it is necessary to search for its justifications (under Marxism) in the Marxist theory on value, labour and surplus value.
• 6. Refer to Volume 1.
• 7. In understanding of this verse, we have followed one of the various possible interpretations of the Qur’an.