cuarter XV. Property and Ownership Secon ! “Tie Navn oF Prorery AND OWSIESHIF “The word used by Muslim jurists for ownership is mikiya and that used Fr property is mal. The term mi, however, i sometimes used for ownership nd at other times fr the subjet-mater of ownership Suasecrion A. Ownership (milkiyah) and possession (ilk al-y) ‘Ownership (milkiyah or mik also called milk al-ragabah is detined by Musi jurist a “the relationship that exists between a person and thine that gives absolute control and right of disposal over i tothe exclusion of fothers” This definition, asi can be seen, is very close 10 the definition ‘of ownership given by Savigny on the basis of Roman fa. Some Muslim Jurts define it as “the relationship between man and property that has been ‘stalished by the sharah through which he exercises exclusive control ‘and righ of disposal over tas fong as there is no shar’ restriction.” This however, des not change the essential nature ofthe definition with espect to “contro!” and “exclusion of others.”Suusncrion B ‘Types of ownership ‘Ownership ily is class below sin various ways, Some of hese are given |. Classification on the basis of participation. Ownership is classified ‘om the bass of the persons participating inthe ownership into three ype (3) Sole ownership. This s ownership by a single person of par. ticular property with ll the attached rights and contol (0) Co-ownership also called sharikatal-milk. When two oF mare persons joitly hold property itis called co-ownership. tis treated as a kind of partnership in Islamic law and is called shavika a-nifh, Closely related othistype of nership isthe sncept of mush’, which is jolt ownership in each particle of the undivided propery. This concep, along with the right of pre-emption, hast bearing onthe issue whether the undivided share can be sold ta stranger. Some modern scholars are trying tose it forthe right to sell shares ina company. 1 or public ownership. These are things that are jointly shared by the entire community including land. grass, fire, An individual does not have the right to exclude another person from such things, unless has been converted to his personal ownership or possession through legally valid mode ‘oF aquisition, Out of these there are certain things that do not ‘ccept individual ownership. These are ire, water, grass, a, public roads an commons. The evidence for this sa tradition to the effet that all mankind are partners in thre things: wa ter, grass und fire, This does not mean that all mankind share the water that comes out of private tube-wells oF the gas on private property. There are other things that canbe converted to private ownership as is the ease in gathering firewood or cut vation of aren lands, 2, Classification on the basis of corpus (ayn), usutruct (manfa‘al), and use stint). A person may own ating as wel as the benefits Mowing from iH, although he may temporarily alienate the beneits ‘through conic, lke ah owner renting out his house to another per ‘security fora debt, The Hanafs do not make Cea Ata Kn Nyarce Advanced Legal Sues InsituteRY Islamie Jurisprudence 213 4 distinction between the ownership of the corpus and ownership of ‘eneits or services lor purposes of ownership. Both are attached to the same thing. The owner nay contract out the use of thing to an othe. but that does not make the other person the owner, The bene! ofthis rule is that the other person not being the owner ofthe benetits {does not have aright of further disposal in them, Thus tenant in & house cannot further sublet it, The majority of the jurists do make 8 distinction, with some of them distinguishing between the right 0 Imangav'ah ad the ight of én’. The wor isin pertains 1 con juga rights, They arise from the marriage contract. 3, Clasifcation on the basis of complete and incomplete ownership. “The wor milk is also used to qualify other legal categories that are ‘elated to ownership, but are not ownership proper. The word lk or “ownership i employed in three senses: milk al-ragaa (proprietary Fights); nik ye (possession); and mk al-zasarra (tight of dis posal). Thus, milk al-ragabul is ownership proper that includes both txclusive control and the right of disposal Possession ori a-yul teanssts of exclusive control and the right to keep others cut of such “conira but it does not include the right of disposal, This isdiscussel below. The third type involves the right o dspose of property on be half af the owner. Tis typeof ownership belongs to the guaran the texoculor and the agent and with some restrictions to the mortgagee ‘and the bailee as wel 4, Classification on the basis of primary and incidental rights. Pr smu rights are associated with the property itself, while ineidental rights are those that may be related to other property because of the primary rights, These ineidental rights pve rights to easements lke the right of passage (lage alu, the right to ow of water Cag “lpmajri, the ight to water hag al-shirb) and the rights of a neigh tour (hagg alia, The last right may also lead to the right of ‘pre-emption Suastcrion © Possession Possession (nik -yudl) may become a means 10 ownership. 1 pos: sesses most of the atributes of ownership-—control andthe right exclude fther-—a gains all except the original owner. I is of two Iypes: aca pitysical possession (agi) and legal possession (ion. tn the fis ease Advanced Lagal Studies Instute @tman Anan Kaw Nye——y 2a Islamic Jurisprudence Prove a Person may be wearing his coat or holding his hore, but this snot pose sible forall things. When itis not possible to take physical possession ofa ‘hing, like possession of land, the law rats lke physical possession when there is intention to keep others out. This intention may be exhibited in var, ious ways that the law recognizes. The intention must als be accompanied by suticient control to keep others out Possession in both its forms is distinguished from the right to possess. 4 the case of shasb (unlawful possession), the usurper has & right tobe In Possession not only against strangers, but also against the original owner, who muy seck possession through due process of law. The rules appear be somewhat similar to those for possession in Roman ly. Suenos It ‘Ti Contr or puorttey (it) AND OWNERSHIP (MILK) | Islamic lw, the terms milk and ma are intimately related, I is by under- ‘Sanding this relationship that we understand the discussions in figh about “wnership and property. The word il as aready sated, i sometimes ay ble to amean ownership and at other times to mean the subject mater of ‘ownership. When the word is applied to mean the subject-matter of owner ip it may include the following four things |. Things having a corpus (body). This body can be destroyed or con sumed independently of anything else. Once destroyed it may be Mable to compensation. Such things quality for being called md ac cording to all the jurists, unless the sharia specifically excludes some ofthese things 2. Things generated from something that has a corpus. These are benefits that we derive from the use of diferent things. Afanfa'ah swufruet oF services fll in this eategory. These benefits cannot be «destroyed independently ofthe body from which they are generated mother words, they have no existence independent ofthe corp from which they are generated. The transactions tough which ownership of benefits s ansferred ate commodate loan (i'aruf) hit (iarah), charitable ust (wag/) and bequest (rasiyah) 5. Things that have a body and can qualify as mai, but are not con sidered mat due to some technical reason, For examples sve 1s ‘owned by & person but is not relered to as ma because human being cannot he ma (Clan Aso Kt Nace ‘Advanced Legal Studies Institute We of mal ‘mal. M attemp er the cat been es corp “the that are trading aswell Adame 1de. bout sap. of be ses ~ hor be ted ship “) Power Islamic Jurisprudence 4, Pure rights that do not have a body oftheir own. Like the eight stipulate an option, say Khir alsa ‘The position ofthe schools of lw on the above categories i fallow: |, According tothe Honaff schoo! itis only things with a corpus that ‘ean qualify as mal (property). Te other three are not ml. but can be the subject-mater of ownership. Benefits arse n contract ike ‘rah (hie). In such contacts, the Hanafis say that the corpus from ‘which future benefits will arse is substiuted in place of the non existent benefits so that the offer and acceptance can be linked tit ‘They do not consider pure rights as mal. They also do not consider such incorporeal thing> like knowledge to have the quality of ma consider pure rightsto be mi, because they do not arise diretly from corpus. 3. The Hanbalfs consider pure rights to be ml although they have not clearly indicated this. They consider the “urbii (earnest money) as legal on the basis ofa solitary tradition, By acknowledging this they acknowledge the sale of options and pure rights. The OIC his pre Ferre this tation and opinion, ‘We thus see tha traditional Islamic law has a somewh. of mal and does no teat incorporeal rights, like patents and copyrights. 3s ‘mal. Modern jurists, courts and the Islamic Figh Academy ofthe OIC have !tempied to expand the concept of propery to include such Fights Ie may be argued that intellectual property rights eannot he placed in the calegory of non-existent benefits. In fact, they are benefits that have been extracted and stand packaged for use. They come closer to things with 8 corpus than do benefits. So if benefits can be sold, whatever the le reasoning behind it, why not intelleetual property rights? ‘The sale of options. however, isa diferent mat that ate being sold and are considered to have an intrinsic value. The accep tance of the Hanbal opinion on earnest money should open the way For the ‘wading of options and derivatives on the commodity and stock excha 4s well as in the world of finance gener sr concep Advanced Legal StudiAslamic Jurisprudence Provoxry thine Jurisprudence Paowssry Seenos Ith ‘Tu birvenunr CLassiricaTions oF MAL, The jurists have classified property (ma) in different ways for understand. ing the operation of the rules: |. Marketable and non-marketable, Marketable things are those that an be converted to private property and whose use has been per- Iitled by the sharia. These things ae called mutagawwam, Non marketable things are thse that cannot be converted into private Droperty lke birds in the air, air, sunshine, fish in the seu and so ‘0 They also include those things whose sale and purchase hax bees disallowed by the law, like wine, swine-lesh. The second type are marketable for non-Muslins. A ontrat for non-marketble things Is not vali, Moveable and immovable. This isthe classification into ‘agar and ‘main. has the same meaning as that in modern lav. The clase fication alfects many rules. For example, bay al-wafa and supa applicable to immovable property. Moveable property is divided into things sold by measure of espacity, weight and count, This divi ‘om for purposes ofr is one tht was followed atthe time of the Prophet pbuh.) Thus if wheat was sod by measure in those dye, ‘but was later sold by weight, the earier classification is followed fog Purposes of the derivation ofthe rules ‘ana non-fungibe. This isthe division into muh and gin Fnable things ave those for which a substitute cam be foun! by weight or measure and quality, Thus, wheat and rice ofa certain qual iy will have a substitute, Non-ungible or gin? property comprises those ods whose similars cannot be ound and have thet own vag that is their value is determined by valuation, Thus, horse a water, _melon and a dresshave no exact substitute in the market. The fungible Eons need only be mentioned ina contrat by weight or measure und ‘quality but non-fungible gos have tobe examined at the time ofthe ‘contact, Further rid does not run in nonfungible goods. The tera ‘rid ix penerally considered to apply to moveable property, but the way al-Sarakhst has used it gives the impression that its being wed for goods ealled gin 4 Consumable and non-cousumable. Currency, food und the ike ure onsuned when used. Non-consumble goods like a house, a hore ©lmean Ato Kn Nyrse ‘Advanced Leyal Studies tnstiuteand- pe that fn per n None ) privet i and 0 has been type are we things sar and ve class 1 shut ah s divided This di ne ofthe ose days, ‘owed for Found by ain gua omprises vnvalue, fungible sure anid nneofthe The term but the “ing wsed slike wre whore Islamic Jurisprudence for riding and the ike are not consumed by use. Again, ri does no run in aon-consumable goods, Review Questions |. How is ownership defined in Islamic law and what i relationship with posession? 2. Theconeeptof property in Islam focuses on corporeal property lone: Comment, 43. Pure rights are not acknowledged as property in Islamic law. Elabo 4. What ae the different classifications of propery in Islamic law? 5. Initscurent theoretical state Islamic law property does not acknowl- edge intellectual property. Comment. ‘Advanced Legal Studies Insitute Clean Abin Khan NyanseIslamic Jurisprudence Proronry (Glan Aan Kin Nyame Advanced Legal Suuies Insite Ge Cont any | legal lieve sma thie but tan}. feo