The Islamic Law of Property
And it is He who created the
heavens and the earth in truth. The
when
He says “Be” then it is. His word in the truth. And His is the dominion on
the day that the Horn is blown. He
is the knower of the Unseen and the
Witnessed, and He is the Wise, the
Informed. [1]
Is it not the case that to Allah
belong whatsoever is in the heavens and the earth.
The Promise of Allah is Truth, but
most of them do not know.[2]
وَءَاتُوهُم مِّن مَّالِ ٱللَّهِ ٱلَّذِىٓ
ءَاتَٮٰكُمۡ
You give them
something yourself out to the means which Allah has given you.[3]
With these verses
of the Qur’an, Allah informs humanity that He is the vested owner of all that
is in the heavens and the earth, and all in between and any right or interest a
human has in property is contingent upon that ultimate divine ownership.
The concept of dual ownership
[human being-God] is one of the special
features of the Islamic doctrine of
economics. Islam protects and endorses
the personal right to own what one
may freely gain, though legitimate
means … . It is a sacred
right. Yet human ownership is tempered
by the
understanding that everything, in
the last analysis, belongs to God… .
What appears to be ownership is in
fact a matter of trusteeship, whereby we
have temporary authority to handle
and benefit from property. [4]
This unique
characterization of the ownership of property is most difficult to analyze in
comparison to Western property law. Some
have erroneously compared this principle to the Western concept of Crown
Land. Although, as we shall see, this principle
does support a state interest in property, it does not support exclusive
state ownership. [5] Similarly, the attempt by some to read in
some form of socialist theory of ownership is equally in error, for although
subject to certain restrictions, the right to private ownership is sacrosanct
in Islam. [6] Walied El-Malik, the only author to seriously
tackle the Islamic theory of mineral ownership in Islam, characterized the
interest created by this dual ownership principle as “individual ad interim ownership.”[7] Abd ul-Razzaq as-Sanhuri, the creator of the
modern Egyptian legal code, viewed Islamic property law as a means of achieving
social harmony. He saw this dual
principle as a form of joint ownership, creating rights for the individual but
also creating certain duties that individual owes to others. [8]
If we examine the
types of ownership, or mulk, created by this dual divine/human ownership
principle over the past 1400 years since the death of the Prophet (SAW), we
find five basic forms; commonage held by all humanity and administered by the
state for the benefit of all people (afraq), state owned property (miri
or hima), charitable trust property (waqf), communally or jointly
owned property (shuyuu), and individual private ownership (mulk).
Humans acquire
ownership in real property in a number of ways.[9] First, given that the ownership of all
property is ultimately with Allah, and that the principle of ownership is
generally a dual divine/human tenancy in common, people have an interest in
some property just by being human. The
Prophet Muhammad (SAW) is narrated to have said, “The Muslims have a share in
three things; water, fire and pasture.” [10] These constitute arfaq (metruke)
or commonage and all humanity has a right to utilize them. An individual or
tribe may own a water well, but any thirsty passerby has the right to request a
drink therefrom. [11] Pasture land is also commonage and any herder
may pasture his flock on such land.
Other arfaq include areas surrounding markets, streets, the hareems
of towns, and caravan stops; in other words the easements and facilities necessary
to enable travel and commerce.[12]
The state can also
acquire property through accretion, annexation, expropriation, and
conquest. Miri or hima is
state land held by the Amir al-Mu’mineen, or Commander of the Faithful,
the official title of the Empiric Khalifs.
This form of ownership developed under the Ottoman Turks, and is derived
from several earlier practices.[13] Historically, hima was a form of shuyuu
or communal property owned by a Bedouin tribe and reserved for the exclusive
use of the members of that tribe. When
Abu Bakr confiscated the hima of the Kindah tribe as punishment for its
apostasy from Islam, he transformed the land from hima of a tribe to hima
of the state, to be subject to the exclusive use of state citizens. [14] Abu Bakr also began the practice of creating hima
reserves for the public benefit from privately owned land when he donated
the reserve of al- Rabadhah for the use of those persons entitle to
zakat. [15] State-owned hima land cannot be
converted into private property, and may not be reserved for the exclusive
benefit of particular persons or the rich. [16]
Umar ibn Khattab
extended the concept of state-owned property even further when he
included land gained by conquest within it scope. Umar considered such land as belonging to all
Muslims. The state, then, had the duty to administer it for the benefit of all
Muslims for all times. To prevent waste
of such land, the state could then chose to divide it amongst the soldiers as
booty (ghaneemah) or it could be returned to the original non-Muslim
owners who then were charged a kharaj tax.[17] The Ottomans developed these concepts along
feudal lines, vesting all ownership of agricultural land in the state; which,
then, issued hujja or titles of possession to individuals, or gave timar
or iqta land grants for military service.[18]
Communities can
also acquire property in various ways.
Property can be owned communally under the doctrine of shuyuu by
families, tribes, villages and towns, and is referred to generally as musha property. [19] Musha land includes tribal himas,
which, as mentioned above, are lands owned by a tribe for the exclusive use of
its members, [20] and the hareems of villages and
towns. These include public markets,
streets and easements and while they may be commonage as far as use, they are
owned by the residents, as tenants in common.
[21]
Disruption
of shuyuu ownership by the colonial powers left the state as the only
repository of the public interest in most Islamic states. Colonial powers imposed Western-style landownership
laws, which did not recognize shuyuu ownership. [22]
As a consequence, state governments took over communal lands, preventing local
control and any corresponding local benefit, and large tracts of land came
under the ownership of foreign land owners. [23] Although Sanhuri took some pains to revive
communal ownership in Egypt,
the influence of civil law state ownership ideas still prevails.[24]
Islamic Shariah
Law and the Principle that Property Should be Utilized for Maximum Benefit
One
recurring theme in the Islamic law of property, which we can glean from the
above discussion, is that property should be utilized for the maximum benefit,
and even private individual acquisition of property must be put to the most
beneficial use. [25] Islam guarantees individual private
ownership. In his farewell sermon, the Prophet (SAW) stated, “regard the life
and property of every Muslim as a sacred trust.
Return the goods entrusted to you to their rightful owners.” [26] Private ownership is encouraged and so is
private enterprise, however, the capitalist concept of unfettered accumulation
of capital is not. [27] An examination of the means by which
individuals acquire property reveals an underlying principle of public
benefit.
Under Islamic
Shariah law, individuals can acquire property in three ways; transfer of
ownership by deed, contract, or gift; succession through inheritance; or
acquiring a thing “which is free for the use of the public,” including revival
of mewat or “dead lands.” [28] The Islamic doctrine of reviving mewat
bears some resemblance to the American doctrine of adverse possession. Based upon the hadith, “Whoever revives a
dead land , then it is his,” [29]
the doctrine of revival of mewat rewards sincere labor and beneficial
use by vesting ownership of uncultivated non-hima land to those who take
concrete steps to work the land, and irrigate and plant crops. After reviving the land, the reviver has the
full rights of mulk, and he may utilize it as any other property. He may even sell it. [30]
In short, Islamic
law allows for the acquisition of property, but what comprises the bundle of
rights referred to as mulk?
Because Allah (SWT) is the true owner, the emphasis is on the right to
use the property. The Prophet said, “He
who had land should cultivate it. If he
will not or cannot, he should give it free to a Muslim brother and not rent it
to him.” [31] Property should be used, not horded or
removed from productive use.
And let those who hoard gold and
silver and do not spend them in the way of Allah know that a severe and painful
punishment is awaiting them. [At-Tauba, 9:34]
The
Law of Rikaz
The Arabic word
used by Allah SWT in the Qur’an for “hording” is “yaknizuun,” “they bury.” Here Allah SWT is making a comparison between
humans hording wealth and kanz or buried treasure. Islam rewards the person who contributes
his labor to produce from the earth with possession and use of the land, but in
recognition of Allah’s ultimate ownership and substantial contribution to the
land’s productivity, Allah has reserved a share. As for the produce of the surface, Allah
(SWT) has stated:
It is He
who produces gardens, both cultivated and wild, and palm trees
and crops
of diverse kinds, and olives and pomegranates, both
similar and
dissimilar. Eat of the fruits when they bear fruit and pay
their due
on the day of harvest. But waste not in excess for Allah does not love
the wasters.[32]
So Allah SWT
allows people to benefit from the use of property, but in return. He expects
them to pay a percentage of their profits to Allah. Generally, this obligatory share is called
Zakat or Purification of Wealth.[33] Since Allah SWT Himself has no use for the
produce or money gained through the use of the property, He has specified in
the Qur’an who should receive this percentage.
The Qur’an details eight classes of persons who are eligible to receive
these funds.
Alms
are for the poor and the needy; and those employed to administer (the funds);
for those whose hearts have been (recently) reconciled (to truth); for those in
bondage and in debt; in the cause of Allah; and for the wayfarer: (thus is it)
ordained by Allah, and Allah is full of knowledge and wisdom. (Al-Qur'an, 9: 60)
Therefore, even though property may
be individually owned, the obligation to pay Allah’s due ensures that the
property will be utilized for the maximum benefit of all.
However, the percentage one has to pay
depends on the amount of effort the owner expends; zakat on money is generally
2.5%, while agricultural production is subject to either ushr, a 1/10
share of the produce from un-irrigated land, or khums, a 1/5 share of
the produce from irrigated land.[34] If Allah SWT provided the water, then His
percentage is greater, and the more effort the owner had to expend, the less
the percentage he must share with others.
Under Shariah law,
rikaz is property that is hidden, usually under the earth. Rikaz comes in two main types; kanz
or buried treasure, and madin or minerals. Both are subject to a special tax for the
benefit of the eight classes of zakat recipients, the khums, based upon
a hadith related by Abu Huraryrah, “One-fifth is obliged on rikaz.” [35] ‘Amr ibn Shu’ayb also narrated that the
Prophet (SAW) said of all things found for which no owner exists, “But for
things found in deserted roads or villages, are charged , as in the case of rikaz,
one-fifth.[36] The percentage due reflects the effort the
owner must expend to bring the property into productive use.
In
comparing horded wealth to buried treasure, Allah SWT brings up two concepts. Hording
removes property from productive use, and in that regard, it is similar to
buried treasure, and ownership of hidden treasure or kanz runs with the
land. Imam Abu Haneefah followed the
letter of the law and held that ownership of minerals followed ownership of
land. The surface owner is entitled to
the surface and all beneath the soil, and he is responsible for paying the khums
upon what he removes therefrom. However,
if the land is communally owned (hima) or commonage (arfaq), then
anything hidden in it is also subject to that communal or common ownership.[37]
The Islamic Ruling on the Ownership of
Human Genes
Islamic
scholars have not addressed the issue of whether genes are apparent (zahir)
or hidden (batin) property.
However, irregardless of whether genes are considered apparent or
hidden, they exist naturally inside the human body. Human genes are just that, human; and the
shared property of all humanity. They
are arfaq or commonage, and should not be owned by any individual.
However,
some human groups can carry certain genes and other groups do not carry those
genes. For example, the gene correlating
with the risk of Tay-Sacks disease is found only among Jews. Another example of genes that may be present
only in certain members of a species and not others are genes specific to
varieties of plants. For example,
regional varieties of grapes, coffee, chocolate, and other plants contain genes
that may not be present in other varieties of these plants. The TRIPS agreement and US Patent law now
recognize geographical indicators and afforded them trademark protection. When Starbucks sought trademark rights over
varieties of coffee grown in certain regions in Ethiopia,
the Ethiopian government fought back and sued to protect their rights. Under Islamic law, such hima or
communal ownership is obvious.
Ethiopians have communal ownership of the plant varieties present in
their country. Ethiopian Yegechefeh
coffee, Sudanese gum Arabic, Brazilian Brazil nuts and American cranberries are
all examples of communally owned naturally occurring property.
Moreover,
given the nature of genes, their presence in all humans and the fact that all
genes are subject to random mutation, it is debatable whether an individual would be entitled to private
ownership of his own genes even when those genes occurred only in that
person.
However,
while genes and even mutated ones that occur in nature should not be subject to
private property rights, including patent rights, there is no reason why a
company or individual should not benefit from the results of their efforts
obtained through the use of the genes.
If genes are commonage, they resemble a tree upon arfaq or hima
land. If someone comes along and views
the branch of the tree, the branch is still commonage. Simply looking at the branch of the tree does
not render the branch private property. Moreover,
even if someone comes along and expends effort to cut the branch from the tree
to take it home for firewood, he may do so, but all other members of society
have an equal right to do so as well. The
branch is still owned as commonage, it is the use that has become individual,
but that individual right of usufruct is common to all. It is not the same as a
private right, which is only the right of the private individual, and is not
common to all.
But if someone expends the effort to cut the
branch from the tree and then takes the branch home and works it into a cane,
then it becomes his private property. The
branch created by Allah, no longer exists; instead the privately owned cane,
the product of human labor, is now present. Similarly, the gene. Gene fragments or even naturally occurring mutations
are simply branches, but the test developed to detect the gene is the result of
human work and subject to private property rights, including patents.
Recently, the
United States Supreme Court has been asked to decide whether a for-profit
corporation can patent portions of the human genome consisting of two human
genes, mutation of those genes which correlate to an increase risk of breast
cancer, and a test for the presence of the gene. The Association for Molecular Pathology v.
Myriad Genetics, Inc presents the issue of whether the Patent Act allows
for the patenting of human genes.[38] The respondent argues that the two genes
involves, BRCA1 and BRCA2 genes, are patentable because they have become
isolated from naturally occurring material.
Under Shariah law, this isolation is not sufficient to render the
isolated genes private property.
Human Genes and American Property Law
The
concept of the maximization of benefit is also found in American law. For example, the goal of the policy of the free
alienability of land is to encourage productive use and prevent waste. US
patent law also reflects this policy.
The US Constitution, Article I Section 8 gives
Congress the power to “To promote the Progress of Science and useful Arts, by
securing for limited Times to Authors and Inventors the exclusive Right to
their respective Writings and Discoveries. [39] The Congress passed the Patent Act,
establishing the US Patent and Trademark Office (USPTO) and providing
guidelines for the issuance of patent.
35 U.S.C. § 101 provides: “Whoever invents or discovers any new and
useful process, machine, manufacture, or composition of matter, or any new and
useful improvement thereof, may obtain a patent
therefor, subject to the conditions and requirements of
this title.”
The
Founding Fathers who wrote the US Constitution created intellectual property
rights, including patent rights, to promote two basic policies. First, fairness and equity dictates that individuals
have the right to benefit from the fruits of their labor, including the right
to benefit from their inventions and discoveries without any interference. Second, allowing the inventor a period of
exclusive use rewards the inventor for his effort and hence benefits the wider
society by encouraging innovation. The economic benefits gained by the
individual inventor through his exclusive period of use fuel “the Progress of
Science and the Useful Arts,” for the benefit of society as a whole. It should be noted however, that the
Constitution limits the time of exclusive rights, recognizing that perpetual
exclusive rights would actually work against the purpose of Intellectual
Property law, promotion of useful science and invention for the benefit of all.
Through
the Patent Act, the Congress sought to balance the rights of individuals to
benefit from the sweat of their brows with the rights of humanity as a whole,
but in doing so the Congress managed to create a law that most effectively
seeks to maximize the public benefit of science and invention. Time-restricted exclusive rights allow the
individual to gain economic benefit from his invention and encourage him to
practice it. In order to benefit, the
inventor must make and sell his invention, thereby making it available to other
people for their use. Then, after a
reasonable time of exclusive use, the invention becomes available to everyone,
so that others can build upon it and further contribute to human progress and the
further benefit of society as a whole.
Patent
law further reflects the principle that property should be utilized for maximum
benefit by prohibiting some things from patent protection. The policy of such restrictions is that some
things are the shared property of all humanity.
Genes
are clearly the shared property of all who have genes, all of humanity. To allow private ownership of genes could
have serious consequences. Imagine, for
example, that Joseph Mengele discovered the gene responsible for Tay Sachs disease. If he were permitted to patent this gene, he
would have the power to control research using that gene. What would prevent
him from using this gene to develop a means to kill more Jews? If we allow a company to control a gene shared
by all human women, such as a gene correlating to a risk for breast cancer, we
grant them the power to control the future of all women. Myriad Genetics, Inc. has a right to benefit
from any test or process derived from the use of the genes, but the genes
themselves should be the property of all humanity.
Conclusion
On
June 13, 2013, the United
States Supreme Court, in a unanimous decision, invalidated Myriad Genetics
patent claims for isolated genes. (Association
for Molecular Pathology v. Myriad Genetics, 569 U.S.
12-398 (2013)). The Court ruled that
merely isolating genes did not make them patentable. Justice Thomas, who wrote the opinion, with
which Justice Scalia concurred in part, reasoned that the genes BRCA1 and BRCA2
occurred naturally and were not a “new … composition of matter,” as required
for patentability. The fact that it took
an extensive amount of effort to isolate these genes did not make the genes
subject to private ownership. [40]
We
applaud the Court for issuing such a wise decision, one in tune with the Law as
prescribed by our Creator. We too affirm
the principle that merely viewing a branch does not afford one private ownership
of a part of a hima tree. No matter how
much work it took to view that branch, this form of work is not the same as the
effort to fashion something from the hima property, an effort that is rewardable
with private ownership. The effort
required to isolate genes is more akin to the effort needed to make a pair of
glasses with which to view something. It
is not effort applied to the hima property itself in such a way as to change
it. Effort applied to change the
property in some manner is rewardable with ownership of the fruits of one’s
labor.
Therefore,
under Shariah Law, private ownership of isolated naturally-occurring genes, no
matter how unique, is haram. The genes
of any creature created by Allah (SWT) are hima.
[1] Qur’an al-An’am
6:73.
[2] Qur’an Yunus
10:55
[3] Qur’an an-Nur,
24:33. Arabic version from ~~, One Umma Network, The Qur’an al-Kareem, http://www.quranexplorer.com/quran/
accessed 10 May 2009.
[4] Siraj
Sait and Hilary Lim, Land, Law and Islam: Property and Human Rights in the
Muslim World, (Zed Books, London 2006) 1. (quoting Abdul Rauf 1984:19).
[5] Ibid.
69.
[6] Walied
M.H. El-Malik, Minerals Investment under the Shari’a Law¸ (Graham and
Troutman, London 1993) 47.
[7] Ibid.
45.
[8] Bechor, The
Sanhuri Code, 129-145.
[9] Sait, Land,
Law and Islam, at 11 -12.
[10][10]
Abu’l-Hasan al-Mawardi, al-Ahkam as-Sultaniyyah: The Laws of Islamic
Governance, trans. Dr.Asadullah Yate (Ta-Ha Publishers, London
1996) 265.
[11]
al-Mawardi, al-ahkam as-Sultaniyyah, 260. Al Hasan narrated that a man came to some
people and asked for a drink. They
refused to give him water from their well, and as a result he died. Umar ibn Khattab, the second Khalif al-Rashidun,
then ordered the people to pay blood money (diya) in recompense.
[12] Ibid.
265.
[13] Sait, Land,
Law and Islam¸ 65.
[14]
El-Malik, Minerals Investment under Shari’a Law, 38.
[15]al-Mawardi, al-Ahkam as-Sultaniyyah, 263.
[16] Ibid.
263.
[17]
al-Mawardi, al-Ahkam as-Sultaniyyah, 201.
[18] Sait, Land,
Law and Islam, 65.
[19] Ibid.
71.
[21] Ibid.
[22] Bechor,
The Sanhuri Code, 130. The Old
Egpytian Code, based on French Civil Law, did not recognize family ownership or
emphasized individualistic sole ownership. See also, Sait, Land, Law
and Islam, 15.
[23] Sait, Land,
Law and Islam, 71-72.
[24] Bechor,
The Sanhuri Code, 130-133.
[25] Sait, Land,
Law and Islam, 11.
[26] Ibid.
16.
[27] Ibid.
11. The Qur’an states, “When the prayer
is ended, then disperse in the land and seek Allah’s Bounty.” al-Jumu’ah 62:10, and the authors of Land, Law and Islam,
quote Gunter (2005: 4), “Islam is against those who accumulate property for the
purposes of geed or oppression as well as those who gain through unlawful
business practices.”
[28] ~~, The
Mejelle: Being an English Translation of the Majallah el-Ahkam –I-Adliya and A
Complete Code on Islamic Civil Law, trans. C.R Tyser, B.A.L. and others
(The Other Press, Kuala Lumpur 2001) 203-204.
[29]
al-Mawardi, al-Ahkam as-Sultaniyyah, 252.
[30] Ibid.
252-253.
[31] Sait, Land,
Law and Islam, 12.
[32] Qur’an Al-An’am,
6:141.
[33] Zakat
is the third pillar of Islam and is called zakat from the Arabic root zaka’
because it is meant to purify one’s wealth from any sin, such as improper
intent or greed.
[34] Dr.
Yusuf al-Qaradawi, Fiqh az-Zakat: A Comparative Study, trans. Dr.Monzer
Kahf, (Dar Al Taqwa, Ltd., London 1999) 224.
Based on a hadith from the Prophet narrated by Jabir, “On that which is
watered by the sky, or springs or water running from the mountains, one-tenth
is obligatory, and on that which is watered by carried water, a half-tenth is
obligatory.” (Ahmad, Muslim, an-Nasa’I
and Abu Dawud).
[35] Ibid.
[36] Ibid.
276.
[37]
El-Malik, Minerals Investment under Shari’a Law, 51.
[38] The
Association of Molecular Pathology v. Myriad Genetics, Inc. Writ of
Certiorari at 1.
[39] US
Constitution, Article I §8.
