Al-Mal: The Concept of Property in Islamic Legal Thought

Author(s): Muhammad Wohidul Islam

Source: Arab Law Quarterly, Vol. 14, No. 4 (1999), pp. 361-368
Published by: BRILL
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 AL-MAL: THE CONCEPT OF PROPERTY IN
ISLAMIC LEGAL THOUGHT
MuhammadWohidulIslam*

CENTRAL IDEA OF MAL

Human relationshipsin social life are multifarious,intertwinedand complicated;

and this is truer particularly in various types of legal transactions. These
transactionsas a whole involve, closely or tangentially,the individualsthemselves
or their properties (amwal pl. of mal). Peoples' properties and wealth are the
concernof legaltransactions,bearingin mind variousrightsandobligationsarising
out of these transactions.The underlying reason for this is simply that mal is
naturally the subject matter of ownership; and more emphatically,the subject
matter of numerouscivil transactionssuch as sale and purchase,rent and lease,
partnership,bequest,gift, wazgf,successionand so on. Mal is, of course,one of the
most necessary elements of livelihood from which a human being cannot be
detached.

PHILOLOGICAL MEANING OF MAL

Mal in the Arabic language signifies whatever in effect a man may acquire and
possess; whether that is corporeal ('ayn) or usufruct (manfa'ah);such as gold,
silver, animal,plantand benefit gainedout of things such as the ridingof vehicles,
the wearingof clothesand the residingin houses etc. On the other hand, whatever
a man cannotpossess, cannotlinguisticallybe regardedas mal. For instance,birds
in the sky, fish in the water,trees in the forest, and mines in the secretdepth of the
earthare not linguisticallyconsideredmal.l Accordingto al-Qamusal-Mukit, mal
means all things which are capable of being owned;2and accordingto Lisan al-
'Arab, mal is customarilykrlown as all things capable of being owned.3 The

* LL.B. (Hons.) and MCL, InternationalIslamic University Malaysia;LL.M., Harvard Law

School.
1 Wahbahal-Zuhaili,I)r, Al-Fiqh al-Islami wa Adillatah (Damascus:Dar al-Fikr, 1985), vol. 4, p.
40; 'Abd al-Salam Dawud al-'Ibadi, Dr, Al-MilkEyyah fi al-Shari'ah al-Islamiyyah, Tabi'atuha wa
Wazifat1uhawa Quyuduha ('Arnrnan:Maktabahal-Aqsa, 1974),p. 171.
2 Al-Qamus al-Muhil, vol. 4, p. 50.
3 Lisan al-'Arab, vol. 11, p. 632.

ArabLaw Quarterly,[1999]361-368
(C)1999 Kluwer Law International.Printedin the Netherlands.

361
362 ARAB LAW QUARTERLY

Shari'ah has not imposed unnecessary limitation on the meaning of mal by

defining it in a narrowperspeciive;ratherthe concept of mal is left wide on the
basis of peoples' customsand usages. Thereforethe Arabsin whose languagethe
Qur'anwas revealedunderstoodthe importanceof mal wheneverthey heard the
tenn, in the sameway as they understoodthe termsheaven,earth,etc. That is why
some of the philologists contend that mal is customarilywell known (al-mal
ma'ruf).4 The termmal or its derivativeshas been mentionedin the Qur'anin more
than 90 verses and in the Sunnah of the Prophet (pbuh) in as many places as
uncountable, and thus these two sources have left the understandingof the
terrninologyopen accordingto the customsof the people.Therefore,wheneveran
Arabhearsor readsthe Prophetichadith(Kullual-Muslim'ala al-Muslimharamun
damaXuwa maluXuwa 'irdahu - Muslims' blood, property and dignity are
protectedagainsteach other), he understandsthe meaningof the term mal in the
sarne way as he understandsthe terms salat, siyamXhadjand zakat without
referringto the specifictechnicalmeanings.5

JURISTIC MEANING OF MAL

After the emergenceof variousschools in Islamic law, the term mal was used to
denote different technical meanings and jurists endeavouredto lay down its
technicaldefinitionsaccordingto their own accounts.Their definitions,therefore,
vary from each other accordingto the purportedtechnicalmeaningsadoptedin
variousschools. In this regard,two definitionsare dominantlyimportant:one is
the definitionof the Hanafi school and the other is of the majority(the schools
other than the Hanafischool).

The Hanafi definition

The Hanafi jurists have laid down several definitionsof mal by using different
wordsimplyingapproximatelythe samemeaningandunderstanding.The variance
is not due to the differencesof their understandirlgof the natureof mal; ratherit is
due to their variousways of expressionand its subtle scopes in their treatmentof
the samemeaning.Someof the prevalentdefinitionsaccordedby the Hanafijurists
in their books are quotedhere as follows:
(1) Mal is whathumaninstinctinclinesto, and whichis capableof being stored/
hoardedfor the time of necessity;6
(2) Existentto which humannatureinclines and which the rule of expenditure
and its prohibition/restriction
applies;7

4 See Al-Misbahal-Manir,vol. 2, p. 288.

5 Muhammad Abu Zahrah, Al-Milkiyyahwa Nazariyyahal-'Aqd(Cairo: Dar al-Fikr, 1996), p. 44.
6 Ibn 'Abidin (Muhammad Amin), HashiahMinhatal-Khaliq'ala al-Bahral-Ra'iq,n.d., n.p., vol. 2,
p. 57 and vol. 4, p. 105.
7 Ibid.,quoted from Al-Durar,vol. 5, pp. 5s51.
 PROPERTY IN ISLAMIC LEGAL THOUGHT 363

(3) Whichhas the statusof being stored for the purposeof beneficialuse during
the time of necessity;8
(4) Which has been createdfor che goodness of human beings and in regardof
which scarcityand stinginess apply.9
The Mayallatal-Ahkamal-'Adliyyah (known as Majallah/Mejelle)defines mal
as a thing which is naturallydesired by man, and can be stored for the time of
necessity. It includesmoveables(manqul)and imrnoveables(ghayrmanqul).l
All these definitionsare not comprehensiveas they do not signify the natureof
mal in the view of the Hanafi school. There are, for example, some properties
(amwal)which, though not capable of being stored, remain beneficiallyuseful,
such as vegetables and fruits; but are not included in the definitions of mal
accordingto the Hanafischool. Similarly,thereare certainthings to which human
instinct does not incline but rather distikes and avoids, such as some medicines,
which are not coveredby the definitions.
Some contemporaryjurists have attempted to redefine mal in the light of the
Hanafi perspective Some of them, for example, maintainiat mal is everything
with materialvalue amongst people; while some others define it as whatever is
capableof being under possession)protectionand customarilyrecognisedto have
beneficial use.ll
The author of Al-Hawi al-Qudsi's defirlitionseems to be accepted by other
juristsas relativelymore comprehensiveand accurate,which is as follows: "mal is
the non-human things, created for the interest of human beings, capable of
possession and transactiontherein by free will''.l2
Accordingto the Hanafijuriststwo elementsarerequiredin orderto conferon a
thing the status of mal:
(1) The thing should be material that is susceptible of being possessed and
protected.Therefore,if a thing does not comply with this requirement,it is
excluded from the definition of mal. As a result, the abstract human
attributes,such as knowledge) health) dignity, intelligence;all usufructs,
debts, mererightssuch as the right to development)the rightof pre-emprion,
the right to water, etc., are not consideredas mal. Similarly,those things
upon which human control is impossible are also excluded from the
definitionof mal, e.g. free air, heat of the sun and moonlightetc.l3 It is clear
thatthe Hanafijunsts do not stipulatethatthe thing,in orderto be considered
as mal) should acalally be owned) rather it is sufficient in their view, in
contrastto the literalmeaningas discussedearlier,if the iing is capableof

8 'Abd al-SalamDawud al-'Ibadi,sapra, note 1, p. 173, quotingfrom Al-Talbih, vol. 2, p. 98.

9 Ibid., quotingfrom Al-Talbih, vol. 2 p. 230.
0 Tyser, C.R., The Meyelle (Eng. Trans.). (Lahere:Law PublishingCompany,1967),Article 126.
1l MuharrlmadYusuf Musa, Al-Amwal, n.p., n.d., p. 162; 'Ali al-Khafif,AhEam al-Mu'amalat al-
Shar'iyyah (Dar al-Fikral-'Arabi),p. 25.
12 MuhammadAbu Zahrah,szxpra, note 5, p. 44-
13 'Abd al-SalamDawud al-CIbadi,op.cit., p. 174; Wahbahal-Zuhaili,op.cit., p. 40 41.
364 ARAB LAW QUARTERLY

being owned.The hunts in the desertand the birdsin the sky are, therefore,
malaccordingto them, on accountof their capabilityof beingowned.
(2) The thing should be capableof beneficialuse accordingto the prevailing
customs. Therefore,the things which are not beneficial,such as poisonous
or harmfulfood or carrion;or capableof beneficialuse but not accordedby
the customsof the people, such as a single wheatcereal,a dropof water,or a
handfulof soil, arenot regardedas malbecausethey haveno benefitin these
smallunits. It is importantto note that the beneficialuse should be judged
in view of the Shari'ahand it should be accordedby persistentcustom in
normal circumstances.The beneficial use in circumstancesof necessity,
such as the consumpeonof carrionfor survivalin severehunger,therefore,
is exceptedand would not confer on the carrionthe statusof mal.l4

DefiXiition of the majority (non-Hanafi schools)

The definiiion accordedto mal by the majorityis more comprehensivethan the
HanafideEmition.HeTethe definitionsof the non-Hanafimajorityare discussed.

Defanitionof the Shafi'i school

Al-Zarkshistates that, "mal is what gives benefit, i.e. preparedto give benefit",
and he continuesto sayat mal can be materialobjectsor usufructs.The material
objectsareof two kinds:inorganicsolidmaterials;andanimals.The solid materials
are regardedas malin all situations.Amongstthe animalsone groupis such that it
has no properphysicalscructureto be used for beneficialpurposesand therefore
not regardedas mal; othersare createdwith submissivenaturesand are amenable
to humarlbeings such as domesticammals,and other tamableanimals,which can
be categorisedas mal.t5
Allama Suyuti refersto ImarnAl-Shafi'i as saying that, sCtheterminologymal
shouldnot be construedexcept as to what has valuewith whichit is exchangeable;
and the destructorof it would be made liable to pay compensation;and what the
people would not usuallythrow awayor disown, such as money, arldthe likes''.l6
With regardto the considerablevalueeffectingthe status of property(mal),Imam
Al-Shafi'i has made two significant points. Firstly, whatever is evaluated as
effectivelygiving rise to benefiltis regardedas financiallyvaluableproperty,and in
contrast,whateveris incapableof showing the effect of giving rise to benefit is
excluded from the status of financiallyvaluable property.Secondly, finarscially
valuablepropertyis one which apparentlyshows the price duringa high rate, and
one which fails to show it is excludedfrom that status.l7

4 Ibid.,et. seq.
5 Al-Zarkshi,Al-Manthurfi al-Qawa'idal-Sharsfyyah,n.p., n.d., p 222.
Al-Suylln (Jalal al-Din Abd al-Rahrnan),Al-Ashbahwa l-Naza ir (Beirut:Dar al-Kutub al-
'Ilrniyyah,1st edn, 1983),p. 327.
17 Ibid.
 PROPERTY IN ISLAMIC LEGAL THOUGSIT 365

Definitionof the Hanbalischool

Accordingto Al-Kharqi,malis somethingin whichiere existsa lawilly perrnissible
benefitwiiout resuliingfrompressingneed or necessity.l8Al-Buhuti,explainingie
abovedefiniiion,maintainsdat the iings in whichthereis no benefitin essence,such
as insects,or wheretherernightexist benefitbut it is legallyprohibited,such as wine,
or there is a lawfullyperrnissiblebenefitbut only in ie sicuaton of pressingneed,
such as keepinga dog, or in the situaiionof necessicy,such as ie consumpiionof a
carcasswhen in direneed of survival,are excludedfromthe statusof mal.l9

Definitionof the Maliki school

Accordingto the Malikijurist,Al-Shatibi)mal is the thing on which ownershipis
conferredandthe ownerwhenhe assumesit excludesoffiersfromsterference.20This
definitionaffirrnsthatmalis the subjectmatterof ownership.It also explainschatthe
basisof propertynghts is the relaiionshipstandingbetween*le thingandthe person.

ATTRIBUTES OF MAL

In the light of the juristic deEmitionsof mal we may now determine certain
characteristicswhich qualify things as mal:
(1) In orderfor a thing to qualifyas mal it has to be, in the wordsof the Mejelle
(Art. 126)) naturally desired by man. In other words, in modern
terminology)it must have commercialvalue;
(2) It must be capableof being owned and possessed;
(3) It must be capableof being stored;
(4) It must be beneficialin the eyes of the Shari'ah;
(5) The ownershipof the thing must be assignableand transferable.
If a certainthing attains the above attributesit may qualify as mal. Keeping in
view the attributesof mal, there seems to exist some distinction between a thing
(Shaiy pl. Ashya') and property (mal). Mahmassanimaintainsthat propertyin a
legal sense differs from thiIlg in generalto the extent that all propertiesmust be
things but not necessarilyall things are property.A thing implies whateverexists
in reality,while propertymust have certainattributesdistinctfrom those of a thing
in general.2lTherefore)the relationshipbetween propertyand thing is that the
formeris specific while the latter is general.

I8 Al-Kharqi,Matanal-Iqna>p. 71-
19 Al-Buhuti(MansurIbn Yunus), Kaskshafal-Qana'Matanal-lqnav('Alamal-Kutub, 1983D,vol.
3p. 152.
20 Al-Shatibi(Abu Ishaq), Al-Muwafaqatfi Usul al-Shari'ah(Egypt: ?datba'ahal-Rahmaniyyah,
n.d.), vol. 2, p. 17.
21 Mahmassani (Sobhi Rajab),Al-Nazariyyahal-'AmmahLil-Mujibatwavl-Wuqud (Beirut:Dar al-
'Ilm Li-l-Malayin,3rd edn, 1983), p. 8.
366 LAW QUARTERLY
ARAB

AND RIGHTS (HUQUQ) AS PROPERTY

USUFRUCTS (MANAFI4)
(MAL)

Asindicatedabove)the Hanafi school recognises

propertronly in materialdings
which have tangiblesubstanceor corpus. Usufructs (manafi pl. of manfa'ah)and
(huquqpl. of haqq)are not therefore according to Hanaf1jurists)property
raffits
junsts) on the oder hand hold
butrathera sort of dominium.The non-Hansfi
by ing they mean e
dat usufrllcts and rights are also propeny) because
use and de benefitof it md not de thing itseIf. This view is in line with
beneficial recognition.
wide legal
decustomaryusage of people and thereforeaccorded noun(masdar)
is the pluralfol-nzof manfa'ahwhich is a verbal
The wordmanafE' or the
and adtrantage
emanating from de root nafaXwhich literallymeans benefit
reading a beneElcial goal.22
mea}sused in achievingsuch benefitand advantageor
de term man f includes m general whatever benefitis taken of a
Accordinglyy
or in the form of substance)
thing- dat thing being either in physicaIstructure, of a house, and
forexample,e milkaIldcalfof a cow)the fmits of a tree5 ie rents

suchlike.
imply only t;hebenefits
The majorityof juristshave used the terrnmansfivtO
whichareostensible,such as
takenout of materialthingsby way of theirutilisation
a clo and *xe work of an
residingin a house, ridlng in a car5the wearing of
as the milk of a cow) the
employee.The benefits in ie :irm of substance,such
house, arldsuch like, are
fruitsof a tree, as well as the rentalproceedsof a rented
rathercalledproduceor
not, therefore)juridicallyregardedas manafi'.These are
proceedsof materlalthings*23
meanssomeding that can
The termrights(huqaqpl. of haqq))on the offierhmd,
people may have by law<
be justly claimed, or the interests md claims at
is what the law recognises for an
According to Dr Wahbah al-Zuhaili)haqq othersto perform
autority or bind
individualto enablehim to exercisea certain relatesto
that haqq sometimes
somethingin relationto him. He furthermaintains of easement
and right
mat e<g.the right of ownership(haqqaI-milkiyyah))
ic
wid respect to rights to passage)
(haqqdI-tRttfaq) in adjacentlmd panicularly
to mal, rather it may denote
waterand developmerlt.Sometimesit may not relate haqqX e.g. ie
possesses such
some legal authorityor claim due to someone who The huquq
of
rights of custody md guardimship upon a person
incapacity.24
rightsandmererightsor
derefore as envisagedby him, areof two types:property
is a general term) and
non-propertyrights. 'Ali al-Khafif contends dat haqq
and applies to all interests
accordinglyit comprehendsall usufructs (manafD)
dus theyarede ownersof
(maslahah)to whichindividualsareentitledby law)and
but not all rights are
such interests. Accordingto him) all usufructs are rights
arldmanfavahis speciElc
usufructsper se.25In other words)haqqis general(;am)
2 P. 328
22AZ-MIaXal-MWr YO1.
(19SO)vol. part 34, p. 27.
) sAlial-Khafi;Al-Manafis,in MajZkztal-Qanunwaz-kttssN
20

24 See Al-FxqhsI-fibmiaop.cit. p. 42.

2s See Al-Mansfi, ap.cit.> p. 98.
 PROPERTY IN ISLAMIC LEGAL THOUGHT 367

(khass).It follows, therefore,that they sharewith each other the scope and extent
of manfa'ah, that is to say, they apply equallyto those things which areutilised for
benefits, such as residingin a house and riding in a car;and vary from each other
when haqqfurtherapplies to the interests not resultingfrom the beneficialuse of
things, for example, the right of pre-emption, the right of option, the right of
guardianshipand the right of custody etc.26The haqqhas, however, a specific
implicationin contrastto its generalityas indicatedabove. Some juristshave used
it as a synonymof manfa'ah. Nevertheless, there still exists a distinctionbetween
them. When we use the termhaqqattentionis madeto the personwho is entitledto
it by law, while in the case of manfa'ah attentionis paid to the subjectmatterfrom
which a person receives benefit. Riding in a car is de benefit (manfa'ah)which
attachesto the car, while the capabilityand authorityof riding in a car is a haqq
(right) which is conferredon the person who is entitled to it. It follows that the
meaningof the rightto beneficialuse is differentfrom the meaningof benefititself,
in the sense that the former is the attributeof the person entitled to it, and the
latter is the attributeof the subject matter from which such benefit (manfa'ah)
emanates.27
Accordingto the Hanafi school, manafi'(usufructs)and huquq(rights whether
propertyrightsor mere rights) are not property,because,these by their natureare
not capableof being possessedand, even though they come into existencefor some
time they do not have subsistence and continuity; rather they cease to exist
gradually following their gradual consumption and enjoyment. The majority
jurists(non-Hanafi)hold the view that manafi'and huquq qualifyas property(mal)
becausethey are regardedas capableof being possessedby virtue of the capability
of their sourcesand bases to be possessed even though not by virtue of their own
nature. Furthermore,these manafi'arld huquqare the desired outcome of the
materialthings, and in the absenceof such outcome the materialthings would fall
short of human demandand inclination.
This conflicting interpretationbetween the Hanafi and non-Hanafilmajority
jurists culminates in some practical problems, particularlyon the issues of
usurpation, lease and inheritance. If someone usurps certain property and
thereafterenjoys some benefit out of it for a certain period and then returns it
to its true owner, he is obliged, according to non-HanaElmajority jurists, tO
compensatefor the benefits so enjoyed.However, accordingto the Hanafi school,
the usurper is not liable to pay compensationfor the benefit enjoyed out of the
usurpedproperty,rathermere restitutionof the propertyto its true owner would
sufElce.Nevertheless, some Hanafi jurists have made certain exceptions to the
above general rule. They maintainthat if the usurped propertyis a trust (waqJ)
property or if it belongs to an orphan or is prepared for certain further
development or utilisation purposes or prepared for lease (e.g. hotels and
restaurantsetc.), then the usurper is liable to pay compensationfor the benefits

26 Ibid
27 Ibid, at p. 99.
368 LAW QUARTERLY
ARAB

is based on istihsan
addition to restitution of the property. This exception
in
of law) and is, thus,
preferenceon the groundof equity to avoid the rigor
(juristic This view is, it is
due to greatneed for the protectionof such properties.
justified
protectionagainst
submitted, somehowweak.In fact, all propertiesare entitledto
compensationfor
interferenceand usurpationof non-owners,and therefore
the properties,
unauthorised enjoymentof the benefitsshouldbe the law in all usurped
andthus the exceptionis unnecessary.28
areof the opinionthat by
With regardto the contractof lease, the Hanafijurists
dissolve, while *le non-
thedeath of the lessee the contractwould prematurely
the fixed period
HanaEl majority's view is that it would continue until
of opinion results from
notwithstanding the death of the lessee. This difference
contract. The Hanafi jurists
differenceof conceptionin the formationof a lease
the to their
(manafi') according
perceive that lease takes place in relationto benefits with
object gradually
gradualaccrual,i.e. the lessee owns beneEltsout of the leased after
accrued out of the lease
thepassageof time. A lessee cannotown the berlefits
hisdeathas it terminates all his mundane legal claims.
the legal heirs of the
Furthermore,as the benefitsare not mal, in their opinion,
the lease contract does not
deceasedlessee cannot inherit them. As a result,
on the other hand,
continue afterthe deathof the lessee. The non-Hanafijurists,
to be present as a whole
holdthe view that the benefits (manafi')are considered
owns it at once at the
duringthe formationof the lease contractand the lessee
Furthermore,manafi'are
beginningby virtue of the contractlegally concluded.
can, therefore,be inherited
too,in their view, consideredas property(mal).They
contract like other salecontractsdoes not
likeany otherproperties.Thus, the lease
dissolveon the deathof the lessee.29
the rights,such as rights
On the issue of inheritance,it is importantto note that
of stipulation, investigationof the
inthe sale contractsin respect of the options
to non-Hanafi jurists, inheritable,
defectivecommodities, etc. are, according
be devolved by the deathof the
becausethey regardtheseas propertywhichshould these are not
to Hanafi jurists,
ownerupon his legal heirs. However, according
inheritableas they are not property.30

28 Wahbah, Zuhaili, op cit., p. 43.

29 Ibid,.at pp. 43 and 278.
30 Ibid, at p. 43.