OWNERSHIP IN ISLAMIC PERSPECTIVE

Tuesday, June 3, 2008

I. INTRODUCTION
Ownership and right to property is the inherent right of a man to exercise his rights over property
which he possesses and control with obligations connected therewith in the property acquired,
such as to use for his own pleasure, to transfer and to extinguish his right by way of transfer if he
chooses. (Note: the term inherent is use to denote that relationship).
Every human being has a right as inherent to his status to make such use of his physical and
mental faculties as he chooses, provided he does not interfere with similar liberty of others. It is
by the exercise of this inherent right that rights and obligations connected with property are
mostly acquired, transferred or extinguished
Definitions of Ownership by western Jurists:
Austins definition; Ownership means a right which avails against everyone who is subject to
the law conferring the right to put thing to user of indefinite nature. Full ownership according to
him is a right indefinite in point of user, unrestricted in point of disposition and unlimited in point
of duration.
According to Hibert, Ownership involves four rights and those are the right of using the thing,
excluding others from using it, the disposal of the thing and the destruction of the thing.
Salmond defines it as; Relation between a person an right that is vested in him.
According to Buckland, Ownership is ultimate right to the thing or what is left when all other
rights vested in various people are taken out.
The word used by Muslim jurists for ownership is milkiyah and that used for property is mal. The
term al-milk, however, is sometimes used for ownership and at other times for the subject matter
of ownership.
Ownership is defined by Muslim jurists as: the relationship that exists between a person and a
thing that gives absolute control and right of disposal over it to the exclusion of others. Some of
them also define it a the relationship between man and property that has been established by the
shariah through which he exercises exclusive control and right of disposal over it as long as there
is no shari restriction. This, however does not change the essential nature of the definition with
respect to control and exclusion of others.
II.

VARIOUS KINDS OF OWNERSHIP

Islamic concept of ownership has classified the ownership into many kinds and types. Here are I
attempted some of its classifications;
A. Major Categories of Ownership
We can distinguish between three major categories of ownership: Private Ownership, Public
Ownership, Waqf (voluntary sector).
1. Private Ownership
Islam recognizes the individuals property and permits the ownership of all types of property
acquired by lawful means. The authority of this sanction may be elucidated from the following
verses:
And for men is the benefit of what they earn. And for women is the benefit of what they earn.

(4:32)
And give to orphans their property, and dont substitute the worthless (things) for good ones.
(4:02)
Islam also recognizes the right of inheritance and obviously it can only be recognized by a system
in which the people have the right of ownership. Islam considers the rich trustees and claims
them to vindicate their trust-worthiness by so dealing with their wealth that it becomes wealth
radiative and not wealth reflective. These trustees are answerable before Allah for the manner in
which they discharge the trust reposed in this. The holy Quran says:
And Allah has made some of you excel others in means of sustenance. So, those who are made
to excel give not away their sustenance to those whom their right hands possess, so that they
may be equal there in. (16:71).
And give them of wealth of Allah which He has given you.
The Quranic verses quoted above thus make it clear that the wealth and all other instruments of
wealth are mainly TRUST put in the hands of rich, with view to afford mutual benefits to all. No
one is absolute master because real ownership and mastery over everything and every person
vests only in Allah; others in these respective forms are no more than mere Trustees, answerable
before Allah for the manner in which they discharge the trust reposed in them.
Islam gives guarantee for the safety of the property of the citizens and inflict heavy punishment
on culprits. Thieves and robbers, who endanger the safety of property of the citizens and do not
honour their rights are very severely punished by Islamic State. Islam condemns those who usurp
the property of other people. It is explained in Quran:
And (as far) the man and woman who committed theft, cut off their hands as punishment for
what they have earned, an exemplary punishment form Allah. (5:38)
And swallow not up your property among your selves by false means. (2:188)
Private ownership is essential prerequisite for a free society. Abolition of private property implies
elimination of freedom. Freedom is most sacred in Islam. Life in Islam is worth living when it is a
life of freedom. An individual is free to maximize his gains. But maximizing gains or at least
getting some profits in the Islamic context is vastly different from capitalism. According to Islam,
means of business should always be fair and legal. Wages should be fair and just. Production
should be acceptable according to the Islamic norms i.e. it should be beneficial to the society. No
Haram (prohibited) items should be produced. Similarly, spending of the fruits of ownership
should also be within the limits set by Islam. The Quran tells us that we should always get our
money in Halal (permissible) way.
Limits on Private Ownership
Islam recognizes the individuals right of ownership but does not leave him entirely free to use this
right in any way he likes. Islam has allowed private ownership in principle but has subjected it to
such limitations as would render it absolutely harmless. It has authorized to community to enact
necessary legislation to organize private ownership and to change it whenever the public interest
demands it.
It is true that the government has an important role in checking the greed of the individuals. When
we say that private property is essential in Islamic framework, it is not that shortcomings of private

property are ignored. Private property can be misused. So, Islam tries to correct this imbalance
from the very beginning in the following ways:
Man is not considered to be the ultimate owner of property and wealth because he is not the
creator. Allah is the creator of men as well as land and wealth. So that property could be used in
the name of Allah.
Morality, religion and ethics should determine human behavior. The government should
intervene in order to ensure that performance of private property is not in contradiction with the
interest of the society in general. The door is open for the Islamic government to play its
constructive role in the economy, on the condition that there should be a real maslahah (public
interest).

2. Public Ownership and Government Sector

We must distinguish between the public ownership and government ownership of the property. In
past, fuqaha (jurists) have spoken about the streets and rivers, etc. and have maintained that
these are owned by the community and not by the government. The prophet PBUH has stated
that people are full partners in water, grazing and fire. These belong to community and the
government should utilize them for the benefit of all. By the same token other jurists and scholars
have added public utilities like transportation, etc. All other public utilities may be seen in the
same way through Qiyas (deduction). The jurists have also spoken about al-maadan al-zahira
(minerals on the face of earth) which are not supposed to be owned individually.
3. Waqf (Voluntary Sector)
Waqf is not mentioned in Quran explicitly, but it is implicit in the teachings of the Quran and
sunnah and was done by the companions of the prophet PBUH during his life. Waqf is meant to
take resources away from the private ownership and allocate them to the benefits of those who
need the fruits or results of such projects.
The institution of al-waqf al-islami (Islamic trust) has played a great and important role in history
of Muslims and gave the right answers to such question: why Islamic education of the past was
independent of the government? Why our jurists were independent? Why our medical programs
flourished to the extent that hospitals were built even for animals? Because of institution of Waqf.
Thousands and thousands in Al-Azhar, in Al-Aqsa, in Egypt, in India and elsewhere got their
education through the waqf.
The waqf is independent from the control of both the private sector and the government. It
belongs directly to the society and is perpetual source of income to its beneficiaries.
Unfortunately, most of these institutions have vanished for a number of reasons including the
growing powers of our contemporary governments.
B. Types of Ownership
Ownership (al-milk) is classified in various ways. Some of these are given below:
1. Classification on the basis of participation. Ownership is classified on the basis of the person
participating in the ownership into three types:
Sole ownership. This is ownership by a single person of a particular property with all the
attached rights and control.
Co-ownership also called sharikat al-milk. When two or more persons jointly hold property it is
called co-ownership. It is treated as a kind of partnership in Islamic law.
Communal or public ownership. These are things that are jointly shared by the entire community

including land, grass, fire. An individual does not have the right to exclude another person from
such things, unless it has been converted to his personal ownership or possession through a
legally valid mode of acquisition.
2. Classification on the basis of corpus (ayn) usurfruct (manfaah), and use (istimta).
A person may own a thing as well as the benefits flowing from it, although he may temporarily
alienate the benefits through contract, like an owner renting out this house to another person or
mortgaging it as security for a debt. The Hanafis do not make a distinction between the ownership
of the corpus and ownership of benefits or services for purposes of ownership. Both are attached
to the same thing. The owner may contract out the use of the thing to another, but that does not
make the other person the owner.
The benefit of this rule is that the other person not being the owner of the benefits does not have
a right of further disposal in them. Thus, a tenant in a house cannot further sublet it. The majority
of the jurists do make distinction, with some of them distinguishing between the right to manfaah
and the right of intifa. The word istimta pertains to conjugal rights. They arise from the marriage
contract.
3. Classification on the basis of complete and incomplete ownership.
The word al-milk is also used to qualify other legal categories that are related to ownership, but
are not ownership, but are not ownership proper. The word al-milk or ownership is employed in
three senses. Milk ar-raqabah (proprietary right), milk al-yad (possession), milk at-tasarruf (right
of disposal).
Thus, milk ar-raqabah is ownership proper that includes both exclusive control and the right of
disposal. Possession or milk al-yad consists of exclusive control and the right the right to keep
others out of such control, but it does not include the right of disposal. Milk at-tasarruf involves the
right to dispose of property on behalf of the owner. This type of ownership belongs to the
guardian, the executor and the agent and with some restrictions to the mortgagee and the bailee
as well.
4. Classification on the basis of primary and incidental rights.
Primary rights are associated with the property itself, while incidental rights are those that may be
related to other property because of the primary rights. These incidental rights give rights to
easement like the right of passage (haqq al-murur), the right to flow of the water (haqq al-majra),
the right to water (haqq al-shurb), right to discharge rain water to anothers land (haqq al-masil).
These rights correspond to easements in English law. An easement is to be enjoyed as in the
past and cannot be enlarged or altered. It is loss by disuse.
Another right is known as rights of a neighbour (haqq al-jiwar). This right may also lead to the
right of Pre-emption. The Punjab Pre-Emption Act 1991 defines right of pre-emption as a right to
acquire by purchase an immovable property in preference to other persons by reason of such
right.
The term pre-emption is usually used for the translation of haqq shuffah, it means the acquiring a
vendors property for the price for which the vendor has sold it. The right of pre-emption comes
into operation only when the vendor has actually sold the property for until the contract of sale
has been entered into the matter resting solely upon his intention cannot be said to be free from
uncertainty.
III. RIGHTS OF OWNERSHIP

One of the most pivotal and crucial issues is that of ownership of various elements of production.
A hot debate is going on among scholars of the age and it is perplexing to pen down that no
conclusive result has been achieved yet. There remains a gulf of difference on this theme.
a. True and Absolute Ownership
Some are of the view that actual ownership rests with Allah, being the Creator and the man holds
property as a trust for that he is accountable. Acquisition and disposal of property are recognized
on certain conditions laid down by Shariah. Absolute ownership of individuals is not according to
tenets of Islam, because it belongs to God solely.
A few writers assert that Real Owner has given proprietary rights to the whole society and they
are against individuals rights of ownership, as has been depicted by Abdul Qadir Udah in this
passage: The society through its functionaries such as rules and councilors has authority to
organize ways and means of utilizing wealth. All wealth belongs to Allah, but Allah has made it fr
good society. The rule in Islam is that all rights belonging to Allah are for good of society which
sits in authority over them and not individuals. The society can abrogate individual ownership of
benefits of property subject to condition that suitable compensation is paid to owner of benefits
involved. Though Islam allows ownership with limits, it authorizes society, as entity for enduring
rights of God and for organizing utilization of wealth, to subject individual ownership of particular
kinds of property to limits, when necessitated by public good. This may apply to ceilings on
agricultural holdings or to urban property.
Sayyed Qutb and Maulana Maudoodi hold somewhat different opinions, however they declare
that rights of ownership are allowed. But their emphasis is on ensuring of basic needs of every
individual.
Abdul Hamid Abu Sulaiman describes in these words: A strict equality in ownership of natural
resources would require very frequent redistribution of those resources among members of
society. This would be disruptive to economic activity and social relations. First alternative to
avoid frequent redistribution and permit private ownership; second, to redistribute equally among
members of society that part of income which is due to natural resources, thus achieving equality
and justice.
M.N Siddique remarks, The individuals, state and society each have claim on property rights in
view of the principle that Islamic state has jurisdiction over individual rights, being embodiment of
Gods vicegerency on earth and representatives of people. This jurisdiction is however, functional,
depending upon values and objectives cherished by Islam.
b. Land Ownership
The claim for land nationalization is sought to be proved from these Quranic verses. Although
there is no direct bearing to this matter, yet some writers put their contention on these passages.
All that the heavens and earth contain belongs to Allah. Whether you reveal or conceal your
thoughts, God will bring you to account of them. He has powers over all things. (2:284)
Return to Our faith or We will banish you from Our land. We shall destroy wrongdoers and let
you dwell in the land after them. (14:13, 14)
Unto Him belongs whatsoever is in the heavens and the earth and religion is His for ever. Will
you then fear any other than Allah? (16:52)

For We shall inherit the earth and all who are thereon and they are returned unto Us. (19:40).
It is His, whatever the heavens and the earth comprise and all that lies between them and
underneath the soil. (20:6)
He laid the earth for creatures, therein are fruits, blossom-bearing palm, husk covered grain and
scented herbs. (55:10-13)
The supporters of land nationalization argue on the basis of above mentioned verses and say that
all land is owned by the ruler, being vicegerent of God and that individuals have no right of
ownership. But they are not justified in it. According to God as He is the Creator of whole
universe, even the very life of a Muslim is belonged by Allah. Hence, concept of land ownership is
not refuted and moreover it is not confirmed that land is a national property.
The private ownership of land was a custom during and before the period of Prophet. The grants
were made by the Prophet himself followed by four pious chalips. There are few reliable
Traditions to this effect. Al-Quma bin Wail relates that his father said a piece of land was granted
to him by the Prophet in Hadhramaut.
It is related by Abu Bakrs daughter, Asma, that Prophet gave her husband, Zubair bin Awwam, a
land piece in Khybar that had date-palm and other trees.
Urwah Bin Zubair narrates that the Prophet granted him one piece of land from groves of Bani
Nadheer which had been made state land.
Umar bin Dinar is said to have related, When the Prophet came to Medina, he granted some
land to Abu Bakr and Umar, the Great.
It is related by Abu Rafia that Prophet had granted a tract of land to some of his relatives but
could not develop or cultivate it and during Hadhrat Umars reign, they sold it for 8 thousands
dinars. He grant of this form of lands was called Iqta, being inheritable and this was common
practice in Arabia.
It is established fact that Islam is not against proprietary rights of land. However, it disfavours the
bad form of feudalism and landlordism, because there arises exploitation and centralization of
land in few hands and then unequal of wealth which is followed by oppression and corruption,
ending with disruption and destruction of a nation.
IV. CONCLUSION
Numerous verses in the Quran give a clear indication that everything is owned by Allah (God)
and that property in the absolute sense belongs to Him, and to Him alone. However, the right of
ownership vests in God alone does not mean that we as human beings do not have the right to
own property, it simply puts this individual right of ownership within a broader context. Ownership
is basically our responsibility as trustees of God on earth. It is clear in the Quran that there is no
objection on the individual right of property. For instance, God tells the Prophet:
Take from their property charity. (A-Tawbah 9:104).
In this verse, God uses the term their property, showing that there is no contradiction between
Gods ultimate ownership to the universe and our right as humans to own within the restrictions
that God has provided.
One of the restrictions on property in Islamic law is the legitimate acquisition of property, as the

sanctity and right to defend property has to be recognized. Another restriction is not to allow your
use of your property to cause harm or problem against other people.The Prophet PBUH once
said;
One should not harm himself or others (Narrated by Muslim).
This requires considering others benefit while using your property. For example, monopolizing
peoples basic necessities is restricted in Islamic law.[]
BIBLIOGRAPHY
1. Mehr Muhammad Nawaz Khan, Prof.; ISLAMIC AND OTHER ECONOMIC SYSTEMS, Islamic
Book Service, Lahore, 1989.
2. LECTURES ON ISLAMIC ECONOMICS; Islamic Concept of Ownership and Its Economic
Implications, by Mohammed Ahmed Sakr, Islamic Research and Training Institute Islamic
Deveploment Bank Jeddah, Saudi Arabia.
3. Imran Ahsan Khan Nyazee, ISLAMIC JURISPRUDENCE; Property and Ownership, Center for
Islamic Law & Legal Heritage
4. Dr. V.D. Mahajan, JURISPRUDENCE AND LEGAL THEORY, Mansoor Book House, Lahore.
5. Prof. Dr. Noor Mohammad Ghifari; SOCIAL SECURITY IN ISLAM, Atiq Publishing House,
Lahore
6. Charles Hamilton; THE HIDAYAH; Mussulman Laws, vol. viii, Premier Book House, Lahore,
1982
7. M.A. Malik; THE PUNJAB PRE-EMPTION ACT 1991, PLD Publisher, Lahore, 1995