بسم الله الرحمن الرحيم
Public Property in Islam:
Its Nature and the Responsibilities of the State to it
(Translated)
Public Property:
Public Property is the permission of the Shar’ for the community to participate in the use of materials which have been stipulated by the Shar’ that they (community) are partners over, whilst individuals and the State are prohibited from possessing them individually. It is the property of the public altogether and it is secured for them; those who are alive benefit from it as will those who follow them until the Day of Judgment.
If such community facilities are not made available, people disperse for its demand, such as water and energy. These include abundant minerals which include materials whose composition prevents people from acquiring them, like those minerals that are visible which people can benefit from without paying a great cost, such as salt. Minerals that are not visible are those such as gold, silver, iron or bronze, whether they are solids like crystal or liquids like oil.
The Nature of Public Property:
Property in Islam is divided into three types: private property, public property, and state ownership. Public ownership is related to financial policy in terms of expenditure, and the collection of revenues through the utilization of the State for the benefit of the nation. Public ownership is characterized by the following characteristics:
First: It is one of the Communities’ Facilities:
Public ownership is one of the facilities that people need. If they do not exist or are shared, people in the country are dispersed in search of them in order to obtain them; the Prophet (saw) said«المسلمون شركاء في ثلاث: في الماء، والكلأ، والنار» “The Muslims are partners in three, water, pastures and fire”. (Sunan Abu Dawud)
He (saw) mentioned these three in the hadeeth, not in terms of restriction, rather, in terms of representation. These three are governed by the rule of materials that are used to facilitate access to them, and many assets take the rule of water, meadows and fire, such as oil, gas, minerals, salt, sulfur, bitumen, rivers, seas, lakes, trees in forests, firewood, coal, fish in the seas, wild birds, pastures, and solar energy. [Al-Khawli Al-Bahi Wealth under Islam, pp. 92-92. Rafik Younis: The Origins of the Islamic Economy, pp. 117-118. Muhammad Rawas: A Study in the Islamic Economy, p. 104].
Second: Some are of the Creation of Allah Whilst Others are of the Manufacture of People
Examples of public property created by Allah are examples mentioned in the first paragraph. Examples of public property created by human beings are treatments to take benefit from the property created by Allah (swt); such as: machinery by which water is pumped, desalination machines, traction pipes, power generators, columns, cables, oil extraction machines, filling, unloading, refineries, coal mines, mining machines, quarries or mines, nuclear power, atomic furnaces, solar power plants, dams, bridges, tunnels, artificial canals, artificial lakes, streets, international roads, public squares, parks, playgrounds, schools, mosques, hospitals, railways, seaports, airports and shelters. These are human undertakings and so they are more entitled for the people as ownership as public property.
Third: It is Characterized by Abundance:
Water, pastures and fire are counted as not rare things, but characterized by abundance. They are suitable for the benefit of all people and they are necessities of life. The State, therefore, should regulate the utilization by the individual so that no one is wronged, whilst taking part in using these resouces and so that the rich do not dominate the weak in posessing these resources.
Fourth: It is not Permissible for Individuals to own an Unlimited Amount of the Resources:
Regarding the community’s facilities mentioned in the Hadith:"المسلمون شركاء في ثلاث: في الماء، والكلأ، والنار" "Muslims are partners in three: Water, pastures and fire.", it is not permissible for individuals to own, and the evidence for that was narrated by al-Tirmidhi: It is mentioned that "عن أبيض بن حمال، أنه وفد إلى رسول الله صلى الله عليه وسلم، فاستقطعه الملح، فقطعه له، فلما أن ولَّى، قال رجل من المجلس: أتدري ما قطعت له؟ إنما قطعت له الماء العِدَّ، أي: جبل ملح، أي الثروة الكبيرة التي لا تنقطع. قال: فانتزعَه منه"Abyad asked Rasulullah (saw) permission so that he could manage a salt mine. Rasulullah generously passed the request. But soon he was reminded by another companion. "O Messenger of Allah, do you know what you have given him? Look, what you have given is (like) running water (ma'u al-'idda)" Then (the narrator) said, “He revoked permission of the salt mine from him.”
Salt was compared to running water, with respect to it being abundant. When the Prophet (saw) knew that it was an abundant mineral, meaning it was plentiful like any salt mine, he took it back and prohibited the ownership by the individual of it because it is a collective communal property. This applies to all minerals and is not just limited to salt.
As for minerals that are abundant, one can review some of the examples discovered by man in this age, such as: oil, gas, gold, silver, copper, salt, iron, tin, coal, lead and uranium. These minerals are strategic materials that all members of the community have the right to use because they are the riches created by Allah (swt) for mankind, treasures for humans hidden in the earth. These materials complement the ability of the state to exercise its sovereignty over sensitive resources, such as money, civil industry, military industry, space exploration, as well as over the accumulation of wealth.
Therefore, Islam has surrounded these resources with legislation that determines the right to invest in them, and enables all members of the community to benefit from them by using all forms of use, determined by the state for the community. This is one of the matters that has been subject to study in books of jurisprudence.
Fifth: It is not Permissible for Individuals to Own Some of the Types Even in Limited Amounts
There are limited amounts of minerals that can be individually owned and treated as Rikaz (i.e. treasure buried in the land that is not known to the owner, minerals or money), and the Khums (fifth) is due upon it. The Messenger of Allah was asked about Al-Luqatah (Found). He said:«ما كان في طريق مأتيٍّ، أو في قرية عامرة، فعرِّفها سنة، فإن جاء صاحبها، وإلا فلك، وما لم يكن في طريق مأتيٍّ، ولا في قرية عامرة، ففيه وفي الركاز الخُمس»“That which is found on a much-travelled road or in an inhabited village, announce it for a year. If its owner comes (and takes it, well and good), otherwise, it is yours. That which was not found on a much-travelled road or in an inhabited village is subject to the Khums, as is Rikaz.” [An-Nisa’i]
Similarly, an individual may possess a spring, if the community does not need it. However, it is not permissible for him to own the road, the sidewalk, the beach, or the like of the community, or that which the community benefits from. However, an individual can take part in using these facilities but not for individual ownership. Examples are sitting on the road, the mosque, fishing at sea, river, or sitting in the garden ... As soon as he leaves these places, he no longer has the advantage of using them. He may not occupy the place he used. Any other person may benefit from these places and the guardian may organize the use.
The State’s Responsibility Regarding Public Property:
The Khilafah State is directly responsible for caring for the people, and it is within its care to preserve private wealth and public wealth. The preservation of this wealth prevents usurping of public property. Among other matters, there are legal laws derived from Islamic law governing the use of public property and ensure they are protected for the benefit of the community. The following explains for the citizen the responsibility of the Khilafah State over the wealth of public property.
First: The responsibility to prevent infringement and damage:
The Khilafah State does not permit aggression on public property from any party. It is legally mandated to protect this property and to prevent the greedy or mischievous from destroying any wealth, facility, machine, road, yard, beach or similar property of the community. It is not permissible for the guardian to own some parts of the public property, or to grant it to his relatives. The Council of the Ummah, the Court of Grievances and the Ummah shall generally be held responsible for that. The Ummah must formulate a system of accountability for the rulers. In this regard, Al-Mawardi said: والذي يختص بنظر المظالم يشتمل على عشرة أقسام: فالقسم الأول: النظر في تعدِّي الولاة على الرعية... والقسم الخامس: رد الغُصوب (أخذ مال متقوَّم محترَم بلا إذن مالكه دون خفية)، وهي ضربان: أحدهما: غصوب سلطانية، قد تغلب عليها ولاة الجور، كالأملاك المقبوضة عن أربابها، إما لرغبة فيها، وإما لتعدٍّ على أهلها. فهذا إن علم به والي المظالم عند تصفح الأمور أمر برده قبل التظلُّم إليه، وإن لم يعلم به فهو موقوف على تظلُّم أربابه"“The one that deals with the consideration of Grievances includes ten sections: the first section: consideration of the violation of governors against the people... and the fifth section: repelling al-Ghosub (Usurping) (taking a respected money without the owner's permission without secrecy) and they are two types; one of them is governmental usurping in which the governors took it because they desired to or they just want to harm the original owner. If the Wali of Grievances knew about it, he must order to return it back before the Grievance is due upon him, and if he did not know about it, it is not due upon him.” [Al-Mawardi says: Page 101-103 Al-Ahkam As-Sultania].
Second: Intervention to Regulate the Use of Facilities:
Interventions are such as those reserving places on the streets or squares for parking of vehicles, pedestrian crossings, market seating and specifying certain places for sea fishing or swimming, or to extract salt from reservoirs. This is an intervention to ensure a suitable share for each member of society, within the limits of need, so as not to dominate the weak in the utilization of these facilities, and to prevent quarrels or disputes during that utilization.
Third: Resolution between Contenders in the Use of Public Property:
It is the nature of human beings to compete for worldly goods as well as competing for the use of public property because it is common and not in the form of quotas known to its owner. This leads to conflict and disputes in the community. The state intervenes to secure the right and for resolution of the dispute and this is its right and duty. Imam Ahmad said about the one who sits upon public ownership."وإن قعد وأطال منع من ذلك لأنه يصير كالممتلك... وإن استبق إليه اثنان احتمل أن يقرع بينهما، واحتمل أن يقدم الإمام من يرى منهما. وإن كان الجالس يضيق على المارة؛ لم يحلَّ له الجلوس فيه، ولا يحل للإمام تمكينه بعِوَض، ولا غيره“…And if he sitsfor a long time, he’ll be prevented from it because it becomes like possession… if two hold on to it, lots could be drawn between them, or it is possible that the Imam will give it to the one he thinks he is the owner. If the sitting is restricting and narrowing for passers-by, it is not permissible for him to sit in it and it is not permissible for the Imam to grant him compensation or anything else.” [Ibn Qudaamah mentioned in al-Mughni, 6/63]
Fourth: Reservation of Public Shelter:
The Khaleefah, the State, has the right to reserve for certain public purposes, a part of the public property or of the private property of the people, as is the case nowadays. From ibn Abbas that Narrated As-Sab bin Jath-thama: Allah's Messenger (saw) said, «لا حمى إلا لله ولرسوله»“No Hima except for Allah and His Apostle.” (Sharh Fath ul Bari Sharh Saheeh Bukhari). Abu Ubayd al-Qasim ibn Salam said: في الحديث الذي يحدثه الصعب بن جَثَّامة عن النبي صلى الله عليه وسلم يذهب إلى أن للإمام أن يحمي ما كان لله، مثل حِمى النبي صلى الله عليه وسلم ، ومثل ما حمى عمر، يقول هذا كله داخل في الحِمى"In the hadeeth narrated by al-Sa`b ibn Jathamah from the Prophet (saw), he goes to the imam to protect what was for Allah, like the Hima of the Prophet (peace and blessings of Allah be upon him) and like the Hima of Omer, all this included in the Hima"[Funds, p. 299 – And al-Mawardi: Al-Ahkam As-Sultania, p. 233-234]. Abu Ubayd al-Qasim ibn Salam said that the Hima is for Allah and His Messenger in two ways. The first is that the lands are for the horses for the sake of Allah and the Messenger of Allah (saw) did so. The second is that the lands should be protected for the sake of charity and this is what Omer (ra) did. This is a reference to what was narrated by al-Bukhari and Abu Dawood on the Prophet (saw) regarding reserving the “Naqi”. [al-Mawardi: Al-Ahkam As-Sultania p. 233].
The Hima is the allocation of free land for public interest, which is an exception to the public utilities. However, this does not make the Hima a private property, nor a state property, but it remains a public property. Public property includes public mubahaat (permisiblities) and that is conducted in the public interest. [Dr. Rafik Younis: The Origins of the Islamic Economy, p. 44-45].
In the era of the Messenger of Allah (saw) and the Khilafah Rashida onward, the Hima was to graze the horses of jihad and the camels of charity. These days, it can be for similar purposes, such as military facilities preparing for jihad, barracks, training camps, archery, or the like.
Fifth: Organizing Land Reclamation (Revival of the Barren Land):
Islam encourages revival of the Dead (Barren) Land, and in this regards, the Messenger of Allah (saw) said: «من أحيا أرضًا ميتة فهي له»“If anyone revives barren land, it belongs to him.” [Al-Bari narrated it in Saheeh al-Bukhari, 5/23]. He also said in another narration:«من أعمر أرضًا ليست لأحد، فهو أحق بها»“He who cultivates land that does not belong to anybody is more rightful (to own it).” [Al-Bayhaqi: al-Sunan al-Kubra, 6/146].
The Shafi’ii opinion about the Hima is: كل ما لم يكن عامرًا (معمورًا)، ولا حريمًا لعامر (ما أضيف إليها وكان من مرافقها؛ وسمي به لأنه يحرم منع صاحبه منه]، فهو موات وإن كان متصلًا بعامر. وقال أبو حنيفة: الموات ما بعُد من العامر،ولم يبلغه الماء. وقال أبو يوسف: الموات كل أرض إذا وقف على العامر منادٍ بأعلى صوته، لم يسمع أقرب الناس إليها في العامر"All that is not inhabited, nor one of its facilities, it is Barren Lands even its connected to it. Abu Hanifah said; the Dead Lands are the lands far from the inhabited lands and the water does not reach. Abu Yusuf said: "the Dead Land is as if a man stood at the top them and shouted, he would not be heard by the nearest people in the inhabited lands." [Mawardi: Al-Ahkam As-Sultania, p. 223] Al-Maawardi sees that the neighbours and the far people are equal in reviving land. As for Imam Malik, he sees that the neighbours in the inhabited lands have the priority in the reviving land from the far away people [Mawardi: Al-Ahkam As-Sultania p. 223].
Revival of land is now being called land reclamation and the states are doing their greatest work in this matter. They may encourage revival by enacting laws that encourage people to reclaim through tax and duty exemptions, and provide the support through constructing infrastructure and providing them with affordable electricity.
The Khalifah may cut off to reserve from this dead land. In this, Abu Yusuf says addressing Ameer Al-Mu’mineen Haroun Al-Raheed: وسألتَ يا أمير المؤمنين عن الأرضين التي افتتحت عنوة، أو صولح عليها أهلها... وليست بملك لأحد، ولا في يد أحد، فهي موات، فمن أحياها، أو أحيا منها شيئًا، فهي له. ولك أن تقطع ذلك من أحببت ورأيت، وتؤاجره، وتعمل فيه بما ترى أنه صلاح. وكل من أحيا أرضًا مواتًا فهي له. وقد كان أبو حنيفة رحمه الله يقول: من أحيا أرضًا مواتًا فهي له إذا أجازه الإمام. ومن أحيا أرضًا مواتًا بغير إذن الإمام فليست له، وللإمام أن يخرجها من يده، ويصنع فيها ما رأى من الإجارة والإقطاع وغير ذلك“I asked Ameer Al-Mu’mineen about the lands that were opened by force, or by truce, and they are not owned by any one, nor in the hand of anyone. If anyone revives dead land or part of it, it belongs to him, and you are permitted to cut off from it to anyone and rent to him if you wish. Abu Hanifah said that whoever revives a land, it is his if the imam permitted, but if he didn’t permit, then it is not for him, and the Imam may take it out of his hand, And so on.” [Abu Yusuf: Al-Kharaj, pp. 63-64].
Abu Yusuf said that Abu Haneefah stipulates the permission of the Imam because the Imam takes care of the people’s affairs. It seems that the opinion of Imam Abu Hanifa is more compatible or acceptable because people are governed by ambitions, passions, and selfishness. With the steady growth and the shortage of Barren Lands following by the increase in construction, the likelihood of conflict is more severe under the so-called population explosion. Therefore, there is no escape from the state intervention to organize and control the revival land so as not to create chaos.
Those who revive the land and then neglect it for more than three years, the state is able to take this land from them and give it to others. The evidence for that are the words of the Prophet (saw): «من أحيا أرضًا ميتة فهي له، وليس لمحتجر حق بعد ثلاث سنين»“He who revives the Dead Land, it is for him, and there is no right for him (i.e. if he neglects it) after three years” [al-Zaylaee; Al-Raya Monument, 4/290]. It was narrated in Musnad al-Shafi'i: Omar ibn al-Khattab (ra) said: ليس لأحد إلا ما أحاطت عليه جدرانه، إن إحياء الموات ما يكون زرعًا، أو حفرًا، أو يحاط بالجدران، وهو مثل إبطاله التحجير، يعني ما يعمر به مثل ما يحجر“No one has the right of a land other than what his walls surrounded. The revival of the Dead Land is for cultivation, or wells, or surrounded by the walls, forming bricks, constructing as the building.” [Musnad al-Shafi'i, p. 382]. Herein lies the importance of the state's control of matters and the knowledge of those who cultivated the land and who suspended cultivation, then to take the right action against him.
It was narrated that Abdullah ibn Abi Bakr said: جاء بلال بن الحارث المزني إلى رسول الله صلى الله عليه وسلم فاستقطعه أرضًا، فقطعها له طويلة عريضة، فلما وُلِّي عمر قال له: "يا بلال، إنك استقطعت رسول الله أرضًا طويلة عريضة قطعها لك، وإن رسول الله لم يكن ليمنع شيئًا يُسأله، وإنك لا تطيق ما في يدك. فقال: أجل. قال فانظر ما قويتَ عليه منها فأمسكه، وما لم تطق فادفعه إلينا نقسمه بين المسلمين. فقال: لا أفعل والله شيئًا أقطعنيه رسول الله صلى الله عليه وسلم. فقال عمر: واللهِ لتفعلنَّ. فأخذ منه ما عجز عن عمارته فقسمه بين المسلمين“Bilal ibn al-Harith al-Muzni came to the Messenger of Allah (peace and blessings of Allah be upon him) and granted him some land. It was very wide, and at the time of Umar he said to Bilal, ‘The Messenger of Allah did not have to forbid anything asked for, and you cannot bear what is in your hand,’ and he said: ‘Yes’ Omar said: ‘Look to what you can bear and hold it, and give us back the rest, so we would divide it among the Muslims.’ He said: ‘By Allah, I will not give you what I was given by the messenger of Allah’ Omar said, ‘By Allah you must do, then he took from him and divided among the Muslims” [Bayhaqi: Sunan al-Kabir, 6/246]. This intervention of Omar (RA) is an intervention because he is the head of the state, and he did this because he considered that his right as guardian and not an infringement on the property of others.
With regard to the possibility of the State acquiring new land, it may do so if it is in the interest of the community on the one hand, and then pays compensation to its owner if it is from the individual property on the other.
It is also the duty of the Khilafah State to reclaim the land itself and to encourage individuals to revive land. It can give some people certain lands for their revival and use, after irrigating with water through pipes and providing electricity,hospitals, and transportation routes to these areas that are subject to revival. This will speed up the work in these deserted areas. This may help to reduce desertification, a problem that has become a concern for economists.
Sixth: Supervision and Control of the Waqf:
The linguistic meaning of Waqf is confinement. It said that the court stopped the confinement. It is only said as an anomaly in the language. It is said: I was confined and confined. In this regard, Omar said to the Prophet (saw): “O Messenger of Allah, I have struck a land in Khaiber that I have never had any wealth for myself. So what is the ruling?” He said, «إن شئتَ حبستَ أصلَها وتصدقتَ بها، غير أن لا يُباع أصلُها، ولا يُبتاع، ولا يُوهَب، ولا يُورَّث»“If you want you can have the original land and do Sadaqah, but the original is not for sale and can’t be given, nor inherited.” He said, “Omar gave it to the poor as Sadaqa, to the relatives, to free slaves, and to the guest.” [Al-Bayhaqi: Al-Sunan al-Kabirah, 6/263 - Sunan al-Nasa'i, al-Ahbas, p. 612]
The technical meaning of Waqf is: confinement of the origin of ownership with access to the benefit of it. It is said of the person who is confined that he is Waqf. The confined wealth is called the Waqf. The Waqf wealth is of different types. The Civil Waqf, Charity Waqf and the Waqf of Access.
It is narrated in al-Mughni for Ibn Qudaamah: وأكثر أهل العلم من السلف ومن بعدهم على القول بصحة الوقف. قال جابر: لم يكن أحد من أصحاب رسول الله صلى الله عليه وسلم ذو مقدرة إلا وقف “most of the scholars of the pious predecessors and others who came after them say that the Waqf is valid. Jaber said: There was not one of the Companions of the Messenger of Allah (saw) with ability that he did not make Waqf” [Ibn Qudaamah: Mughni, 6/185].
If a Muslim makes Waqf for the Muslims, he may use it because he is one of the Muslims, such as a mosque where he can pray at, or a well that he can take water from. This is part of Public Property. However, if he gives Waqf to certain people, such as his children or his offspring, the Waqf remains confined only to them.
As for who will be the responsible over the Waqf, it is the one who established the Waqf initially, or whoever that appointed by the one who gave the Waqf if the waqf is not absolute, i.e for the children, relatives or offspring. The person who look after the waqf shall determine the possibility of the ownership after death to the original owner. Ibn Qudamah said,«إلى الموقوف عليه، أو إلى الله تعالى، فإن قلنا للموقوف عليه، فالنظر فيه إليه لأنه ملَّكه عينه ونفعه. وإن قلنا هو لله، فالحاكم ينوب فيه، ويصرفه إلى مصارفه؛
لأنه مال الله؛ فكان النظر فيه إلى حاكم المسلمين، كالوقف على المساكين. وأما الوقف على المساكين، والمساجد، ونحوها، أو على من لا يمكن حصرهم واستيعابهم، فالنظر فيه إلى الحاكم؛ لأنه ليس له مالك متعين ينظر فيه، وله أن يستنيب فيه» “For the one to whom it is Waqf, or for Allah, if we speak of those for whom it is Waqf, then it is examined for its ownership and its benefit. If we say for Allah, then the ruler will be appointed in it, and he will spend it in its expenditures because it is the wealth of Allah (swt) and it is considered for the ruler of the Muslims as if it were Waqf for the poor. As for the Waqf for the poor, the mosques and so on, or on that which cannot be owned exclusively and assimilated, then the ruler has to look after it because it does not have a specific owner who can be considered, and he can take care of it.” [Ibn Qudamah: 243].
From this it appears that Ibn Qudamah believes that the ruler (the Khaleefah) is responsible for the Waqf on the poor, the mosques, and that which cannot be owned exclusively and assimilated by the people because it has no specific owner to look after it. The State is responsible for the public right and the public wealth. Public property falls within this framework. It was narrated from Omar ibn al-Khattab (ra) who said: من أراد أن يسأل عن المال فليأتني، فإن الله تبارك وتعالى جعلني له خازنًا وقاسمًا “Whoever wants to ask about wealth, let him come to me, Allah (swt) trusted me over that.” [Ibn al-Jawzi: History of Omar Ibn al-Khattab, p.87]
The Khilafah state is the deputy of the community, or a representative of them. It is the treasurer, the spender and the shepherd. It is also a protector of the various kinds of property and segregates each type of property from others. The state does not allow the individual to own that which is the community’s, or the state to own that which is for the individuals, except after fulfilling conditions and except after paying the price, such as the need to build a road, or to build any facility for the community. In other words, the maintenance of individual (private) property, public property and state property is the duty of the Khilafah State, except in exceptional cases permitted by Shari'a, after paying compensation to the owner in case of the transfer of ownership from one to another.
The State establishes some of the large projects that individuals cannot afford or refrain from. It is natural for individuals to refrain from some projects that require large amounts of capital. In this case, the Khilafah State is required to establish, spend or manage these projects because it is responsible for the comprehensive care of people and the provision of vital facilities. The Khilafah State leads development, corrects the path of economic activity, and facilitates the use of public facilities by making them more user friendly and more compliant with sanitary conditions, such as: water purification, seawater desalination, pollution control of the environment and the like.
The most important works that individuals refrain from are heavy industries, railways, road construction, airport construction, bridges, huge tunnels ... The role of the Khilafah State here is to fill a vacuum and to take responsibility.
Written for the Central Media Office of Hizb ut Tahrir by
Dr. Ayed Fadel Al-Sha’rawy (Rahimahullah)