The
concept of public property, and its opposing category of private property, is
well known today, due primarily to the centrality of the latter to liberal and
capitalist thought and the former to socialist thought. However, the notion
that certain things are owned by individuals, giving them exclusive disposal
rights thereof, whilst others are for the common disposal of people
collectively long precedes modernity. Modern thinkers were not the first to
come up with these ideas. They but adopted them within or for certain broader
ideological paradigms. John Locke, for instance,
makes private property central to his (liberal) political theory, where for Karl Marx the abolition of private ownership of the
means of production is central to ending capitalist exploitation.
Islam
has its own notions of private and public property far removed from the
associated ideological frameworks of modernity. Private property is neither the
grounds for all individual rights on the basis of which humans move from a
“state to nature” to civil society nor something inherently evil that needs to
be done away with. Rather, on the Islamic view, all things are created by Allah
(swt) and are His property first and foremost,
from where they become the property of human beings by the delegation and
permission of Allah (swt), affording them the right to dispose of them within
parameters set by Allah (swt).
Within
this framework, Islam affirms a place for both private ownership [mulk khass],
defined broadly as the permission of the lawgiver (Allah) for an individual to
have exclusive rights of disposal of a thing, and public ownership [mulk ‘aam],
defined broadly as the permission of the lawgiver for a thing to be commonly
benefited from by people at large with no one having exclusive rights. Both are
discussed by classical Ulama (scholars). In this
article, we look in particular at how the Hanafi fuqaha discussed public
property.
The
esteemed and erudite Hanafi faqih of the sixth century Burhan al-Din Abu al-Hasan
Ali ibn Abi Bakr al-Marghinani (d. 593) says in al-Hidaya,
"لا يجوز للإمام أن يقطع ما لا
غنى بالمسلمين عنه كالملح والآبار التي يستقي الناس منها"
“It
is not allowed for the ruler to grant (to a person/s) that which the Muslims
collectively are in need of such
as salt mines and large wells from which the people irrigate their lands.” [1]
In
commenting on this the great Hanafi faqih and muhaddith of the ninth century Badr al-Din al-‘Ayni (d. 855) elaborates on a numbers
of points in al-Binaya Sharh al-Hidaya.
[2] First, he notes that “that which the Muslims collectively are in need of”
is everything that they cannot do with as a community. Second, he explains that
the ruler granting something [iqtaa’],
like a piece of land, is when he allots it to someone making it their private
ownership. Third, he mentions that the jurists are agreed on this point, there
being no difference of opinion on it. Fourth, he adduces as proof the hadith
related by Tirmidhi
and Abu Dawud:
عن أبيض بن حمال: «أنه وفد إلى النبي r فاستقطعه الملح الذي بمأرب، فقطعه فلما أن ولى قال رجل من المجلس:
أتدري ما قطعت له؟ إنما قطعت له الماء العد. قال: فانتزع منه»
From
Abyad bin Hammal (ra) that he went to the Prophet (saw)
and asked him to allocate the salt reserve in Ma’rib to him so he (saw) did so.
When he left a man from the gathering said, “Do you know what you just
allocated to him? You allocated to him an unending (replenishable) [‘idd] reserve.” So he (saw) took it back
from him.” [3]
The
unending reserve [al-ma’ al-‘idd],
Ayni says, quoting the linguist Asma’i, is the continuous one [al-ma’ al-da’im] that keeps producing
its content like the water of a spring or well. Finally, ‘Ayni notes that based
on this, “our scholars said that what the shepherds and pastoralists, then the
rulers, take for giving access to water, pastureland, mountains, mines and
mineral deposits, and salt reserves is from suht”. Suht is haram wealth
gained through illegal means. Taking money for giving access to what people
should have open access to is of this type because those taking it are acting
as if it is private ownership or as if they have great disposal rights than
others, whereas they do not. Commenting on this hadith in his commentry on
Tirmidhi, Allama Anwar Shah Kashmir (d. 1353) also notes that the granting of
mines to individuals by the ruler is not allowed according to Hanafi fuqaha.
[4]
What
this hadith establishes is that replenishable reserves and mines are not
allowed to be privately owned by individuals. They are for the common benefit
of all people, i.e., public property. Everyone has the right to benefit from
them. The narration of the same hadith in Ibn Majah makes this clearer:
It was narrated from Abyad bin
Hammal that he asked (the Prophet (saw)) for a salt reserve called the Ma’rib Dam to be given to him, and it
was given to him. Then Aqra bin Habis al-Tamimi (ra) came to the Messenger of
Allah (saw) and said: “O Messenger of Allah (saw), I used to
come to the salt reserve during Jahilliya and it was in a land in which there
was no water, and whoever came to it took from it. It was (plentiful) like
flowing water.” So the Messenger of Allah (saw) asked Abyad
bin Hammal to give back what he was allotted of the salt reserve. He said: “I
give it to you on the basis that you make it charity given by me.” The
Messenger of Allah said: » هُوَ مِنْكَ صَدَقَةٌ وَهُوَ مِثْلُ
الْمَاءِ الْعِدِّ مَنْ وَرَدَهُ أَخَذَهُ « “It is a charity from you, and it is like flowing water, whoever comes
to it may take from it.” [5]
In other words, natural occurring
resources in large quantities are a common property of people who may all come
to it and benefit from it. No one can own them and exclude others from using
it.
Imam
al-Tumurtashi (d. 1004) relates verbatim the same lines mentioned above from
al-Marghinani in Tanwir al-Absar.
Commenting on this, the erudite Hanafi faqih of the 11th century,
Ala’-Din al-Hasaki (d. 1088) says in al-Durr al-Mukhtar:
“Know
that the ruler is not allowed to allocate to individuals that which the Muslims
collectively are in need of, such as things like surface mines and mineral
deposits [ma’adin dhahira]: that
whose content which Allah has placed inside the Earth is apparent such as mines
of salt, antimony, bitumen and oil. Likewise, wells other than those which are
dug or made by effort and thereby owned. If he does so, the grant will be
invalid and both the grantee and others will be equal with respect of
benefiting from them. If the grantee prevents others from it, he is
transgressing by such prevention.” [6]
The other primary, and even more explicit, text on
public property is the statement of the Prophet (saw),
«الناس شركاء في ثلاث في الماء والكلأ
والنار»
“The people are partners in three things: water,
pastures and fire.” [7]
Many of the Hanafi fuqaha discussed this hadith and
used it as proof for designating certain things as being for the common benefit
of people. Shams al-A’imma al-Sarkhasi
(d. 483), one of the early Hanafi authorities, says in his al-Mabsut:
ولو استأجر بئرا شهرين ليسقي منها أرضه وغنمه لم يجز،
وكذلك النهر والعين؛ لأن المقصود هو الماء وهو عين لا يجوز أن يتملك بعقد الإجارة،
ولأن الماء أصل الإباحة ما لم يحرزه الإنسان بإنائه وهو مشترك بين الناس كافة قال r: «الناس شركاء في الثلاث في الماء والكلأ والنار» فالمستأجر فيه والآخر سواء؛ فلهذا لا يستوجب
عليه أجر بسببه.
“If one leased a well for two months to
irrigate his land and feed his sheep, this would not be allowed. Likewise,
rivers and springs. This is because in all these cases the object being
contracted over is water, which is a commodity that is not allowed to be owned
through a lease. Further, the original hukm for water is permissibility (for
all people to use) so long as someone does not take some in his container (then
what he takes becomes his property). It is common property of all people, as
the Prophet (saw) said, “The people are partners in three things: water,
pastures and fire.” [8]
Elsewhere in the book, he elaborates on the hadith as
follows:
وعن رسول الله r: قال «المسلمون شركاء في ثلاث في الماء والكلإ والنار» وفي الروايات: الناس شركاء في ثلاث، وهذا أعم من الأول ففيه إثبات الشركة للناس كافة:
المسلمين والكفار في هذه الأشياء الثلاثة، وهو كذلك، وتفسير هذه الشركة في المياه
التي تجري في الأودية، والأنهار العظام كجيحون وسيحون، وفرات، ودجلة، ونيل فإن
الانتفاع بها بمنزلة الانتفاع بالشمس، والهواء ويستوي في ذلك المسلمون، وغيرهم،
وليس لأحد أن يمنع أحدا من ذلك، وهو بمنزلة الانتفاع بالطرق العامة من حيث التطرق
فيها. ومرادهم من لفظة الشركة بين الناس بيان أصل الإباحة، والمساواة بين الناس في
الانتفاع لا أنه مملوك لهم فالماء في هذه الأودية ليس بملك لأحد.
The Prophet – Allah bless him and grant him peace –
said, “Muslims are partners in three things: water, pastures and fire.”
In other narrations he said, “The people are partners in three things…”
which is more general than the first narration since the latter affirms the
partnership for all people, Muslims and kuffar alike, in these three things.
This is the correct position. The meaning of partnership in the waters that
flow in valleys and great rivers like the Jeyhun (Amu Darya), Seyhun (Syr
Darya), Euphrates, Tigris and Nile is that benefiting from them is like
benefiting from the Sun and air, for the Muslims and others alike. No one can
exclude others from it. It is like benefiting from public roads in terms of
travelling on them. The intent of the word “partnership” [sharika] of people is to clarify that the original rule is
permissibility and all people have the equal right in benefiting from it, not
that they all jointly own it. The water in these rivers and the like is not
ownership of anyone.” [9]
Imam ‘Ala
al-Dinal-Kasani (d. 587) of the sixth century also discusses this matter in his
famous Bada’i al-Sana’i, saying:
لأن الماء في الأصل خلق مباحا لقول النبي r «النَّاسُ
شُرَكَاءُ فِي ثَلَاثٍ الْمَاءِ وَالْكَلَأِ وَالنَّارِ» «الناس شركاء في ثلاث
الماء والكلأ والنار» والشركة العامة تقتضي الإباحة إلا أنه إذا جعل في إناء وأحرزه به فقد
استولى عليه وهو غير مملوك لأحد فيصير مملوكا للمستولي كما في سائر المباحات الغير
المملوكة، وإذا لم يوجد ذلك بقي على أصل الإباحة الثابتة بالشرع فلا يجوز بيعه؛
لأن محل البيع هو المال المملوك وليس له أن يمنع الناس من الشفة - وهو الشرب
بأنفسهم - وسقي دوابهم منه؛ لأنه مباح لهم.
“Water in origin has been created
permissible for all due to the statement of the Prophet (s), “The people are
partners in three things: water, pastures and fire.” General partnership
necessitates permissibility. However, when anyone takes some of it in a
container for himself then he has established his ownership over it since
previously it was unowned, as is the case with all other unowned permissible
things. If this does not happen, the origin ruling of permissibility,
established by the Sharia, remain and hence selling it is not allowed. This is
because only the owned thing can be sold. Further, no one can prevent others
from drinking therefrom or feeding their animals, since it is permissible for
all.” [10]
Imam Fakhr
al-Din al-Zayla’i (d. 743) says in Tabyin al-Haqa’iq:
لا يجوز بيع المراعي ولا إجارتها والمراد به الكلأ دون
رقبة الأرض؛ لأن بيع الأرض وإجارتها جائز إذا كان مالكا لها، وإنما لا يجوز بيع
الكلأ وإجارته؛ لأنه ليس بمملوك له إذ لا يملكه بنباته في أرضه ما لم يحرزه لقوله r «المسلمون
شركاء في ثلاثة: في الماء والكلأ والنار» رواه أحمد وأبو داود ورواه ابن ماجه من حديث ابن عباس
وزاد فيه «وثمنه
حرام» وهو محمول على ما إذا لم
يحرزه، وقال r «لا يمنع الماء والنار والكلأ» رواه ابن ماجه ومعناه أن لهم الانتفاع بشرب
الماء وسقي الدواب والاستقاء من الآبار والحياض والأنهار المملوكة.
Grass and pasture [mara’ii] that grows of its own
accord is not allowed to be sold or leased. This refers to kala’, as opposed to
the neck of the land. This is because sale and lease of the land by its owner
is allowed since he owns it. This does apply to the pasture since he does not
own it, so long as he does not take it for his own use. This is due to the
statement of the Prophet (s), “Muslims are partners in three things: water,
pastures and fire”, related by Ahmad, Abu Dawud. Ibn Majah also relates it
from Ibn Abbas (ra) with the addition, “and its price is haram” which is
understood as applying it so long as he does not take it for his own use. He
(s) also said, “Water, fire and pastures are not prevented”, related by
Ibn Majah, which means that people have a right to benefit from these things by
drinking the water and feeding their animals, and irrigating their land from
wells, ponds and (small) owned rivers.
[11]
وشرط لجواز الانتفاع به أن لا يضر بالعامة فإن كان يضر
بالعامة بأن يميله بالكري أو نصب الرحى فليس له ذلك؛ لأن الانتفاع بالمباح لا يجوز
إلا إذا كان لا يضر بأحد كالانتفاع بالشمس والقمر والهواء
“The permissibility of benefiting from it
is conditional on not harming the public (their benefit of it). Thus, if he
benefits from it in way that harms others, such as changing the direction of a
river by digging or erecting a raha, this is not allow. This is because
benefiting from the permissible things is not allowed except in a way that does
not harm others, as is the case with benefiting from the sun, moon and air.” [12]
The great
Shami scholar of the 13th century, Muhammad Amin Ibn Abidin (d.
1252) of Damascus, who is perhaps the most renowned of the latter Hanafi fuqaha,
particularly in the Subcontinent also discusses the matter at length in his Radd al-Muhtar (also known as Hashiyat Ibn Abidin). He claries a
number of points [13]:
1. The partnership (of the three
categories mentioned in the hadith) is a partnership of permissibility [ibaha] not ownership [milk]. Everyone has the right to benefit
from it. Whoever takes part of for his use that part is his ownership to the
exclusion of others, which he can dispose of by any mean of disposal that is
allowed for an owner.
2. Pasture [kala’] is that which grows and spreads and has no trunk such as
lemongrass, while trees as that which have a trunk. Three types:
a. Pasture
growing in an area not owned by anyone – all people are partners in the right
to graze their animals on this or to cut and gather it for their use.
b. Pasture
growing in owned land without the effort of the owner – it is likewise open to
use by all. However, the owner has the right to prevent entry on to his land.
c. Pasture
growing in owned land with the effort of the owner – this is his private
property.
3. Wood in
areas not owned by anyone has the same rule and can be cut and gathered for use
by anyone.
4. Fire in
the hadith refers to fire lit by people, so if someone lights a fire in an open
land, others have a right to benefit from it by using its light, drying their
cloths from it or seeking heat from it. (According to other fuqaha, fire refers
to the firewood used to produce fire).
Finally, the Majallat
al-Ahkam al-Adliyya also lists those properties that the Shari’ah considers
public properties. In its tenth book on partnership or shared ownership [sharikaat], the fourth chapter is on
partnership of permissibility [shirkat
al-ibaha] which lists and discusses the rules relating to public
properties, starting with mention of water, pastures and fire in article 1234. [14]
Thus, in summary, three categories of things are
public property according to the Hanafi school of fiqh: one, all that which the
people collectively are in need of like wells; two, natural mineral deposits
occurring in large quantities; and three, water, pasture and fire as mentioned
in the hadith and described above. These being public property means that all
people have equal rights to benefit from them. All people are equal partners in
them in the meaning that they are equally permissible for them all. No one can
be excluded from utilising them and no one can profit from them as it were his
private wealth. In turn, these cannot be privatised or granted to individuals
or companies such that they make a profit from them.
Written for the Central Media Office of Hizb ut Tahrir
by
Uthman Badar
Notes:
[1] Marghinani, al-Hidaya
Sharh Biyadat al-Mubtadi, Dar al-Ihya: Beirut, 4:384.
[2] Ayni, Badr al-Din, al-Binaya Sharh al-Hidaya, Dar al-Kutub al-Ilmiyya: Beirut,
12:292-3.
[3] Abu Dawud, 3046; Tirmidhi, 1380.
[4] Kashmiri, Anwar Shah, al-'Urf al-Shadhi Sharh Sunan al-Tirmidhi, Dar al-Turath: Beirut,
3:101.
[5] Ibn Majah, 2569.
[6] Haskafi, 'Ala al-Din, al-Durr al-Mukthar wa Hashiyat Ibn Abidin, Dar al-Fikr: Beirut,
6:434.
[7] Abu Dawud, 3477; Ibn Majah, 2472; Ahmad, 23082.
[8] Sarkhasi, al-Mabsut,
Dar al-Ma'rifa: Beirut, 16:33.
[9] Ibid., 23:163.
[10] Kasani, Bada'i
al-Sana'i fi Tartib al-Shara'i, Dar al-Kutub al-Ilmiyya, 6:188-9.
[11] Zayla'i, Tabyin
al-Haqa'iq Sharh Kanz al-Daqa'iq, Matba'a Kubra Amiriyya: Cairo, 4:48)
[12] Ibid., 6:39.
[13] Ibn Abideen, al-Durr
al-Mukthar wa Hashiyat Ibn Abidin, Dar al-Fikr: Beirut, 6:440.
[14] Majallat
al-Ahkam al-Adliyya, Karkhana Tijarat Kutub: Karachi, 1:238.
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