Land in Islamic Law - Definition, Etymology, and Principal Rules
Etymology and Translations
- Arabic: أرض (arḍ), بلد (balad), ملك (mulk)
- Turkish: Arazı, Ülke, Mülk
Overview
In Islamic law, the concept of land (arḍ) is multifaceted and supported by a comprehensive legal framework. This framework governs various aspects, including tithes, ownership, sales, and appropriations for religious purposes. These principles have roots in classical Islamic jurisprudence, particularly in texts like the “Hidāyah,” a key compendium of Hanafi law.
Principal Rules Relating to Land in Muslim Law
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Tithes or Zakāt on Lands
- Anything produced from the ground is subject to a tithe (ʿāshir or ʿushr), typically one-tenth. Watered lands using weights or machinery owe half-tithes.
- Exception: Articles of wood, bamboos, and grass are not subject to tithe.
Source: Hidāyah, vol. i. p. 44.
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Ownership of Conquered Lands
- Lands conquered by Muslims become state property.
- Idolaters’ lands remain unchanged, while lands belonging to Jews, Christians, or Fire worshippers can remain with the original owners upon paying tribute.
- Converts to Islam from these groups may have differing rights to recover properties depending on the school of thought: Shafi’i vs. Hanafi.
Source: Hidāyah, vol. ii. p. 170.
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Appropriation for Religious Uses
- Lands can be appropriated for religious purposes indefinitely.
- Any portion discovered to be someone else’s property voids the entire appropriation.
Source: Hidāyah, vol. ii. p. 340.
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Sale of Land
- The sale of land is lawful, including trees present on it but excluding growing grain or fruit unless specified.
- Wells and watercourses are not part of the sale unless specified.
Source: Hidāyah, vol. ii. pp. 372, 481, 503.
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Claims Against Land
- Plaintiffs must define boundaries and specify owners in disputes over land claims.
- Claims may be against the most recent possessor depending on the interpretation.
Source: Hidāyah, vol. iii. p. 65.
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Lending Land
- Land can be lent, and the lender can require the borrower to remove structures at the end of the lending period.
- Crop land loans cannot be resumed until the crops are harvested.
Source: Hidāyah, vol. iii. p. 284, 288.
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Gifts of Land
- Uncultivated gifted land cannot be retracted once built upon or planted.
- Selling part of the granted land may allow the original donor to reclaim the remaining land.
- Gifts to close relatives cannot be rescinded.
Source: Hidāyah, vol. iii. p. 302.
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Ijārah (Rental) of Land
- Rent and lease agreements must specify the terms and crop to be raised.
- Lessees are not responsible for accidental loss during farming.
Source: Hidāyah, vol. iii. p. 314, &c.
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Cultivation of Waste or Unclaimed Lands
- Cultivation with government permission vests property rights in the cultivator.
- Uncultivated lands for three years may revert to state control.
Source: Hidāyah, vol. iv. p. 128.
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Liability for Murder on Land
- Landowners are responsible for murders occurring on their lands near villages unless they reside there and manage it properly.
Source: Hidāyah, vol. iv. p. 447.
Recommended Books for Further Studies
- “The Hidāyah: Commentary on the Islamic Laws” by Burhān al-Dīn al-Marghīnānī
- “Land Law in the Islamic World: Property, Rights, and System” by Hadeel S. Al-Alosi
- “The Islamic Law of Land” by Pollock, Mookerjee, Kosambi
Takeaways and Conclusion
Islamic law encompasses a detailed framework governing land management, reflecting principles of gross equity and systematic administration. These rules not only address the practical issues around the ownership and use of land but also integrate broader ethical and social responsibilities.
The diligent study of such rules ensures that the manifold dimensions of land, from ownership and tithes to rental agreements and appropriations for religious purposes, are aligned with the values of fairness, justice, and reciprocity intrinsic to Islamic teaching.
Understanding these principles contributes significantly to the knowledge of Islamic jurisprudence, offering insights into the intersection of law, faith, and community governance.
