RESTRICTIONS ON OWNERSHIP IN ISLAMIC LAW

INTRODUCTION: Ownership in Islam are restricted and limited by numerous obligations laid down by Shariah to render them absolutely harmless. These restrictions comprise a set of moral and religious principles and doctrines that guide and regulate ownership in Islam.1 The restrictions are as follows:

1 NO RIGHT TO DESTROY (IT IS FASAD): Islam is a religion, which teaches non-violence. According to Quran, God does not love fasad, violence. What is meant by fasad is clearly expressed in verse 205 of the second surah:

When he turns his back, his aim is everywhere is to spread mischief (fasad) through the earth and destroy crops and progeny but Allah loveth not to mischief.

Basically fasad is that action which results to disruption of social system, causing huge losses in term of lives and property.2 Those who corrupt the Earth by destroying lives, property, and nature are designated as mufsidun (corrupters and evil-doers), who in effect, wage war against God by dismantling the very fabric of existence.3
1

Dr. Abdel Hamid M.Bashir, Property Rights, Institutions and Economic Development: Islamic Perspective, Vol 18, n.p. 2002, at 75. 2 Maulana Wahiduddin Khan, Principles of Islam, Goodword , 2000, at 87.
3

Michael Wolfe, Taking Back Islam:American Muslims Reclaim Their Faith, Rodale, 2004 at 34.

As far as property is concern, it is among the five essential things that being protected by shariah (maqasid or objectives of shariah). Others are life-soul, faith, intellect and lineage. These are seen as absolute requirements to the survival and spiritual well-being of individuals, to the extent that their destruction or collapse would precipitate chaos and the demise of normal social order in society. Shariah on the whole seeks primarily to protect and promote these essential values, and validates all measures necessary for their preservation and advancement.4

2 NO RIGHT TO INDULGE INTO ISRF (WASTEFUL EXPENDITURE): All the resources upon which life depends have been created by God for the benefit of all creatures and handed over to a man as trust. The utilization of these resources is therefore the right and privilege of all people as well as of all other creatures. Hence as trustee we should ensure that these resources are utilized judiciously and wasteful behaviour5: And do not waste (God bounties): verily, He does not love the wasteful6 Furthermore, the thirty-second sin, which has been mentioned in the Quran and traditions as a Greater sin, is Isrf or wasteful expenditure. It is enumerated among the Greater Sins in the tradition of Fazl Ibn Shazn from Imam Ria (a.s.) and also in the

Azyumardi Azra, Wayne Hudson . Islam Beyond Conflict: Indonesian Islam And Western Political Theory. Ashgate Publishing, Ltd., 2008 at 165.

Cathrien de Pater, Religion and sustainable development: opportunities and challenges for higher Irene Dankelman, LIT Verlag Mnster, 2009 at 154.

Quran 6:141

tradition of Amash from Imam Jafar as-Sadiq (a.s.). The Quranic verses and traditions, both, confirm that wasteful expenditure is a Greater sin. The Holy Quran says: and eat and drink and be not extravagant; surely He does not love the extravagant.7 ...the extravagant are the inmates of the fire.8 And thus do We recompense him who is extravagant and does not believe in the communication of his Lord; and certainly the chastisement of the Hereafter is severer and more lasting.9 The above ayah(s) suffice to show the dislike of Almighty Allah (S.W.T.) for the extravagant people.10 3 NO RIGHT TO COMMIT CRUELTY ON ANIMALS OWNED: Islam teaches that mercy and compassion are to be shown to every living creature, for Allah loves everything that he has made. Therefore cruelty to animal is totally forbidden in Islam.11 The Prophet forbade any sport which involves making animals fight each other a common enough practice in his time. By the same principle, modern blood sports such as fox-hunting, dog-baiting, or fight with the death between cockerels, are condemned.
7 8

Quran, Arf:31 Quran, Ghfir:43 9 Quran, T H127 10 Shaheed Ayatullah Abdul Husain Dastghaib Shirazi, Wasteful Expenditure (Israf) is a Great Sin, <http://www.imamreza.net/eng/imamreza.php?id=7420>
11

Ruqaiyyah Waris Maqsood, Islam, Heinemann, 1999 at 45.

Besides, Islam teaches no one should ever hunt just for spot. People may only take the life of animals for food or another useful purpose. The Prophet said: If someone kills a sparrow for sport, the sparrow will cry out on the Day of Judgement, O Lord! That person killed me for nothing! He did not kill me for any useful purpose!.12

4 RESTRICTIONS ON THE USE AND ENJOYMENT OF PROPERTY BY SPENDING IT IN THE WAY OF ALLAH AND NO RIGHT TO HOARDING: The use and enjoyment of property must be made in the way of Allah. Allah says in the Quran: ...and (as for) those who hoard up gold and silver and do not spend it in Allahs way, announce to them a painful chastisement. On the day when it shall be heated in the fire of Hell, then their foreheads and their sides and their backs shall be branded with it; this is what you hoarded up for yourselves, therefore taste what you hoarded.13 The Holy Prophet explains: If a person hoards wealth and does not fulfil the rights (if he sees a poor and needy person and he does not spend it in the way of Allah); then on the Day of

12 13

Ibid. Quran, at-Tawba:34-35

Qiyma he will be branded with it and it will be told to him, This is your wealth which you collected with miserliness.14 Numerous ayah(s) and traditions have emphasised spending in the way of Allah (S.W.T.) and prohibited against hoarding of wealth. The money spent in the way of Allah (S.W.T.) has been called as the righteous wealth by the Holy Prophet (S). The person who spends in the way of Allah (S.W.T.) will deserve praises in this world and also earn the eternal rewards of the Hereafter. Those who do not will be fraught with regret and bitterness, forever.15 5 NO RIGHT TO GAMBLING: The Quran clearly prohibits any form of gambling: They ask you about wine and gambling, speak:.. Both contain a lot of evil and also profit for humanity, but the evil is bigger than profit.16 O you who believe! Intoxicants, gambling, al-ansaab [stone altars for sacrifice to false gods], and al-azlaam (arrows for seeking luck or decision) are an abomination of Shaytaans handiwork. So avoid (strictly all) that (abomination) in order that you may be successful. Shaytaan wants only to excite enmity and hatred between you with intoxicants and gambling, and hinder you from the remembrance of Allah and from al-salah. So, will you not then abstain?17
14

Tafsr al-Mizan Shaheed Ayatullah Abdul Husain Dastghaib Shirazi, Wasteful Expenditure (Israf) is a Great Sin, <http://www.imamreza.net/eng/imamreza.php?id=7420>
15
16 17

Quran, Al-Baqarah:219 Quran, Al-Maaidah:90-91

6 RESTRICTIONS ON MAKING WAQF: According to Muslims scholars, waqf is the permanent dedication by a Muslim of any property for religious or charitable purposes, or for the benefit of the founder and his descendents, in such a way that the owners right is extinguished, and the property is considered to belong to God.18 There are few restrictions on the making of waqf. To be valid, a waqf must; first, the property dedicated to the waqf must be in existence and owned by the founder (waqif) at the time waqf is created. Second, the founder must be an adult person of sound mind. Third, the waqf must be perpetual and must commence before the founders death. Fourth, a waqf must be absolute and (according to Shias) unconditional. Fifth, an undivided share of property cannot be declared a waqf for the purpose of a mosque or cemetery, but it may be a valid waqf for other purposes. Seventh, waqf must be capable of being identified with reasonable certainty. Eight, a waqf made on the founders death bed may not exceed one-third of the estate without the consent of the heirs.19 7 RESTRICTIONS ON MAKING WASIYYAH: Wasiyyah or will derived from the root word wasa which means be conveyed. Technically it means a transfer of ownership for no consideration to take effect after death.
20

18

Jamila Hussain, Islam: Its Lawa and Society. Federation Press, 2004 at 125. Ibid. Sayid Sabiq, Fiqh Al-Sunna, Beirut: Dar al-Fikr, 1995, Vol 3, at 295.

19 20

One may will no more than one third of his money unless he has the permission of his heirs to will more. In moderation, the will relates to one quarter, one fifth or one sixth of the money. Saad bin Abi Waqas said he asked the Prophet if he may will two thirds of his money for good causes. The Prophet of Allah replied, No. He had the same answer when he asked about one half of his money and said, Only one third, and that is plenty. The Prophet recommended to some of his companions that one fifth of their money be willed to good cause, saying I am content with Allah what Allah is content with, referring to verse 41 of surah 9, Al-Anfal, And knows that whatever spoils you win, a fifth is for Allah.21 8 RESTRICTIONS ON MAKING HIBAH: There are few restrictions on the making of gifts during a persons lifetime. To be valid, a gift must: be declared by donor, be accepted by the donee, personally or through an agent and be delivered by the donor to the donee. A gift may be made to any person, although gifts to the poor (sadaqa) are especially recommended. If a gift is made to one child, then it is recommended that a similar gift be made to other children, so that they are treated equally by their parents. It is considered reprehensible for a parent to give all his or her property to one child, excluding the others. Husbands and wives can make gift to each other. Gift can be made to and received from non-Muslims. Gifts can be made in favour of charity or an institution, and may amount to the whole of a persons property.22

21 22

The Islamic Will<http://irgc.net/ebooks/fiqh/The%20Islaamic%20Will.pdf> Jamila Hussain, Islam: Its Law and Society, Federation Press, 2004 at 125.

If a gift is made by a person on his death bed, such a gift is treated as a bequest and cannot exceed one-third of the estate. It is also subject to the consent of the heirs, since it should not deprive the heirs of their legitimate.23 9 RESTRICTIONS ON MAKING SALE, WHERE PROPERTY IS SUBJECT TO THE RIGHT OF SHUFA (PRE-EMPTION): Islamic law recognizes a right that limits the owners power of alienation in order to protect any action that will harm and abuse the interest of others. One of the limitations is the right to acquire the undivided property of the co-owners and other at the price which the purchaser is prepared to sell. This is Islamic right of pre-emption or shufa.24 Shufa literally mean to add together. It is also originally means conjunction since it refers to the land sold which is conjunction to the land of the pre-emption. Shufa means a right to acquire by compulsory purchase some immovable property in preference to all other persons by reason of such right. The general idea of shufa is to preserve the joint nature of the property and to prevent the introduction of strangers among the co-sharers and neighbours, which will likely cause inconvenience or vexation to the comfort of the inhabitants and their privacy in enjoying their rights to the property.25 The right on shufa has not being mentioned in the Quran, but a number of Hadith has touch on this right. It is reported that our Prophet decreed shufa in every undivided share whether a dwelling or a garden. It is not lawful to sell until his co-sharers give
23

Ibid.

24

Azila Ahmad Sarkawi, Alias Abdullah, Urban Planning An Islamic Perspective, Arah Pendidikan Sdn Bhd, 2008, at 243. 25 Ibid.

permission. If he then wishes, he may purchase it and if he wishes, he may give it up but when he sells without obtaining permission from the co-owner, then the co-owner is more entitled to it.26 10 RESTRICTION OF HAJR: Islam considers lawfully acquired wealth as subject to the protection of the Shariah, it regards the wealth owner as a trustee who holds his wealth as a trust on behalf of God and the community. Hence, his inability to use his wealth properly provides the basis for the forfeiture of his right to his wealth. Extravagance, waste and general abuse of wealth is the basis upon which the community can consider him a safih, a person of weak understanding and one in possession of weak intellect; and a person who along with his own financial and moral loss is damaging the interest of the community. The extravagant .There is a restriction according to which such a persons wealth is made the ward of the community, or its legitimate representatives, which may limit his right to use only a part of his property to meet his basic needs (Quran 4:5).This restriction on the exercise of rights of property by individual owners is spoken of in Tradition collections as hajr , which literally means what is forbidden, that being also the terminology of the jurists.27

26

27

Ibid. <http://www.islamindepth.com/site/index.php?/islam/content/pdf/380>