Ownership in Islamic Law: A Comprehensive Guide
1. Introduction
Ownership, or milk, holds significant importance in Islamic law, as it pertains to an individual’s worldly desires and their relationships with others. Islamic law outlines various methods for acquiring and relinquishing ownership, aiming to prevent disputes and uphold societal harmony.
2. Meaning and Definition of Ownership
(I) General Definition
Ownership is defined as:
“The relationship between a person and a thing that grants absolute control and the right of disposal over it, to the exclusion of others.”
(II) As Defined by Sadru’sh Shariat
“It is the expression of the connection existing between a man and a thing, which is under his absolute power and control, to the exclusion of control and disposition by others.”
3. Elements of Ownership
The fundamental elements of ownership (milk) are “Control” and “Exclusion of others”. The individual possessing such powers and control is known as the malik, or owner.
4. Subject Matter of Ownership
The subject over which the legal concept of milk extends is referred to as “Mal”.
(I) Meaning of Mal
According to Al-Hawi:
“Mal refers to things other than human beings, created for the benefit of humankind, which a person can possess and dispose of as they see fit.”
(II) Things Included in Mal
Mal may encompass the following:
- Things having a corpus: All Muslim jurists agree that things possessing a physical body are considered Mal.
- Things connected with corpus: According to Malikis and Shafiis, things associated with a physical object, such as usufruct or Manafah (whether in the form of produce from a physical object or labor and services provided by individuals), are included in mal.
- Pure rights: Hanbalis include pure rights, such as the right to stipulate an option, as part of Mal.
(III) Modern Concept of Mal
While traditional Islamic law did not encompass incorporeal rights like copyrights and patents under the definition of Mal, contemporary Islamic jurists and courts have sought to broaden the concept of property to include such rights.
(IV) Classification of Mal
Jurists have established the following classifications of mal:
- Moveable and immoveable: Immovable property primarily refers to land and any permanent fixtures upon it, such as buildings. The defining characteristic of moveable property is its ability to be transported from one location to another.
- Similar and dissimilar: An article is categorized as similar (Maithli) if a substitute can be found with equivalent weight, measure, and quality, such as gold or silver. Dissimilar things lack readily available equivalents in the market or may have slight variations, like houses or animals.
- Marketable and non-marketable: Marketable things can be converted into private property. Non-marketable things, such as air, sunshine, or birds in flight, cannot be converted into private property and are not considered mal.
- Consumable and non-consumable: Consumable things include food and similar items, while non-consumable goods encompass items like houses, gold, etc.
5. Modes of Acquiring Ownership
According to the strict interpretation of Islamic law, ownership is acquired through the following means:
- Ihraz (original acquisition)
- Naql (transfer)
- Khalf (succession)
Modern jurists also recognize ownership acquisition through:
- Prescription
(I) By Ihraz
Ihraz refers to taking possession of something not previously owned. This constitutes original acquisition. Objects not intended for common use and not already appropriated by someone else can be secured as property, such as trees growing on mountains.
(II) By Naql
The most prevalent method of acquiring ownership is through transfer, where the current owner willingly conveys ownership to another party. This transfer is typically executed through a contract or Aqd, which may take the form of a sale, gift, etc.
(III) By Khalf
This mode of acquisition falls under family law. Upon a person’s death, their entire estate, both moveable and immoveable, passes to their legal heirs, who then assume ownership through succession.
(IV) By Prescription
While strict interpretations of Islamic law do not recognize ownership acquisition through mere possession over time, modern legal practices in countries like Turkey and Egypt have indirectly achieved a similar outcome. This is accomplished by granting the Sultan the authority to prevent the Qazi from hearing cases filed after a specific period. Additionally, easements, which are rights associated with property, can be acquired through prescription. An example of this is a right of way over another person’s land.
6. Modes of Losing Ownership
Ownership can be lost through the following ways:
- Transfer
- Extinction of the thing
- Death of the owner
- Operation of law
(I) By Transfer
Ownership can be relinquished through a deliberate act of transfer. The original owner may choose to transfer their property to another party through means such as sale, gift, or waqf. In such cases, their ownership ceases, and it passes to the new owner.
(II) By Extinction of Thing
If the object of ownership is destroyed, the owner’s ownership ceases to exist.
(III) By Death of Owner
Unless the rights associated with the property are inheritable, the owner’s ownership ends upon their death. In cases of inheritable rights, ownership is transferred to the legal heirs.
(IV) By Operation of Law
Ownership can also be terminated through the operation of law.
7. Ownership in Islam Compared to English Law
Islamic law’s concept of ownership is more comprehensive than its English law counterpart. It inherently includes possession as an integral aspect. In contrast, English law views ownership solely as a legal relationship between an individual and their rights concerning a specific object.
8. Conclusion
In essence, every individual possesses the inherent right to utilize their physical and mental faculties as they deem fit, provided it does not infringe upon the similar liberties of others. It is through the exercise of this fundamental right that rights and obligations related to property are primarily acquired, transferred, or extinguished.