ISLAMIC LAND FRAMEWORK MODULE 1

1. LAND, PROPERTY AND HOUSING RIGHTS IN THE MUSLIM WORLD ISLAMIC LAND FRAMEWORKMODULE 1

2. SESSION LEARNING OUTCOMES 1 Reflect upon the focus on Islamic conceptions of land and property rights 2 Explore the rationale of engagement with Islamic dimension of land 3 Critically consider arguments in favor of focusing upon Islamic law and methodologies 4 Critically consider arguments against focus upon Islamic law and methodologies

3. OPENING THOUGHTS 1. What experience do you have of Islamic principles? 2. Why do you think Islamic principles are relevant in Muslim societies? 3. How can Islamic principles support land, property and housing rights?

4. KEY CONCEPTS THAT YOU SHOULD KNOW Private property rights are protected, but ultimate ownership belongs to GOD Land, property and housing rights ZAKAT (charity obligation) and SADAQA (voluntary) Land rights

5. Construe forcible evictions Aid good governance and human rights Explicitly recognizes women’s property rights Subject to both conservative gender deprecating interpretation and cultural practices Gap between principles and practices HOW CAN THE CONCEPTS BE USED?

6. Development of a variety of innovative, authentic land rights tools Demonstrates obligations of State to develop and implement policies Land and property falls within social transactions Underpin specific property rights WHY ARE THESE CONCEPTS RELEVANT?

7. Security of tenure vital for land rights Tenure through variety of ways Clarify the nature and scope of property rights and secure tenure and access to land Supplement the application of international standards and goals IS ISLAM RELEVANT TO SECURE TENURE?

8. Generally promote private property rights but emphasizing the rights of the landless Requires all rights to be exercised Create an egalitarian society within the Islamic legal and ethical framework Clear foundational Islamic principles relating to land DOES ISLAM RECOGNIZE LAND RIGHTS?

9. HOW DOES ISLAM DISCUSS LAND ISSUES? Land is addressed in the larger context of socio-cultural and religious norms Eg. Land transactions, emphasis on mutual respect, honour and righteous conduct Islamic positive law encompasses two general categories

10. Is considered to be a complete way of life and property. Impact to varying degrees on the life experiences of Muslim. Inform State policies and land discourse. Distinctive Islamic approaches evident in the fields of land administration, land registration, urban planning, water policies and environmental protection. Aspects of Islamic principles may provide legitimacy and durable solutions through incorporating or at least considering authentic Islamic contributions. HOW ISLAM CAN BE STILL RELEVANT?

11. DO MUSLIMS HAVE A DUTY TOWARDS POOR? 2 3 1 4 Zakat (literally purification) POOR Charitable obligations Monetary terms Payment

12. Islamic law and systems are based on the ethical dimension of the divine revelation. There are certain basic Islamic concepts or ‘ golden threads’ that embody the spirit of the Shari’a. GOLDEN THREADS HAQQ (concepts of rights) QIST (equity) ADL (justice) WHAT ARE THE “ GOLDEN THREADS”? Frequency in Qur’an: 15 times 13 times 227 times

13. Property rights lay stress on responsibility, poverty alleviation and redistribution. Formulation based on unity (tawhid), stewardship (khalifa) and trust (amana) implies that land ownership and enjoyment must be just and responsible. Islamic doctrines envisage rights for including women, children, landless and minorities. Repeated Islamic emphasis on obligations regarding philanthropy, fairness and poverty alleviation are influential in land rights argumentation. CAN ISLAM FACILITATE ACCESS TO LAND?

14. Islamic norms are those derived from certain divinely inspired principles through a particular methodology. Muslims practices need not be Islamic, and therefore if certain Muslims abuse Islamic principles, this cannot be attributed to Islamic doctrines. MUSLIM = ISLAMIC? • Muslims may be secular or adopt customary traditions, this may be in contrast (or compatible) to Islamic practices.

15. Elaborated in Islamic law Remedies for the individuals wrongly deprived of property by official action High importance attached to property rights, and theft under Islamic law falls within the crimes which are severely punished. ARE PROPERTY RIGHTSPROTECTED BY ISLAM?

16. Land use is subject to equitable and redistributive principles. Qur’anic references to the effect that all of humanity benefits from nature’s resources. Charity Breaking up land monopolies and large estates. Islamic property rights have redistributive element. SUPPORT LAND REDISTRIBUTION? DOES IT

17. Equitable and durable foundations to market-based access to land. Not a culturally isolated economic mechanism serving to equilibrate supply and demand A workable and socially acceptable market structure. WHAT RELEVANCE TO MARKET FORCES? MARKET FORCES Eg: Islamic economists address market equilibrium through permissible activities, responsibilities and ‘just market price’ (Prophet’s hadith)

18. Islam two major sects Shi’a Sunni (majority of muslims worldwide) Twelvers Ismailis Zaidis Hanafi Shafi’i Maliki Hanbali ARE THE PRINCIPLES THE SAME? The considerable variety owing to their specific historical and colonial context, the State ideology and the extent of Islamic law Main structure: Four main jurisprudent schools These schools were named after their leading jurists and each is the dominant authority in different parts of the world.

19. DOES ISLAMIC SCHOOLS MATTER? Important to know which Islamic school is prevalent in a particular country or community. Necessary to engage with Islamic law in a particular context. Eg, Hanafi, the most widespread of the four schools, is considered the flexible and open to innovative interpretations of its core doctrines.

20. India Hanafi Hanafi Maliki Practice vary Afghanistan ‘BEST PRACTICE’ approaches: cross fertilization and innovative approaches Toleration of divergence of opinion HOW DO THE SCHOOLS DIFFER? DIFFERENCES: • The methodology of patching (talfiq), by which jurists may give authoritative support to the compilation of a legal regulation from the views of more than one school of law, a method used in the creation of modern legal Codes.

21. FACTS: May result in wasteful land subdivisions in some cases, but it creates also opportunities for land readjustment and communal holdings. Communal or tribal lands were a feature of some Muslim countries. SOLUTIONS: MASHA SYSTEM involved a periodic reallocation of shares of arable land involved a periodic reallocation of shares of arable land DOES IT SUPPORT LAND READJUSTMENT?

22. Land management is seen as supervising land Mandated to administer land, efficiently and fairly No ideal Islamic State and Muslim States selectively adopt Islamic principles according to their interpretation. Often sought to derive legitimacy for their land reform measures DOES IT SUPPORT LAND REFORM

23. Case study: Ottoman land history SUPPORT FOR LAND ADMINISTRATION? SUPPORT FOR LAND ADMINISTRATION Cadastre and tax collction systems Islamic principles do not inhibit effective land administration systems. Land administration through an elaborate network of laws and guidelines The vastness of land requires local management

24. FACTS: Cadastre found in early Muslim history: Ottoman Torrens system or equivalent titling programmers in colonized Muslim countries EXAMPLES: Jordan, Algeria and Morocco: cadastral preparation activity From Yemen to Indonesia: extensive support for land titling projects Attitudes vary but nothing frustrates these attempts SUPPORT FOR LAND ADMINISTRATION?

25. Difficult to generalize A need to improve land governance Land is seen as a currency of political patronage and corruption. Exploitative rent-seeking behaviour can flourish at the expense of the poor. WHAT ABOUT LAND GOVERNANCE?

26. Problems in land administration Misuse of power and corruption are repeatedly stressed in Islamic literature. Justice (adl) and consultation (shura), are influential. The influence of Islam is varied and may be less than sometimes assumed. WHAT ABOUT LAND GOVERNANCE?

27. poverty alleviation redistribution support of the landless fund access to land for the landless poor IS THERE SUPPORT FOR LANDLESS? Rights for landless poor, slum-dwellers and squatters could be addressed through public interest policy. Redistribution, revival or mewat (dead) lands or optimizing emdowerment (waqf) lands. the public treasury (baitul-Maal)

28. Modern corporate institution Most parts of the Muslim world, now expanding and gaining a strong voice. Contemporary Islamic activism is keen to produce authentic tools true to Islamic principles and values Revival and invigoration of such institutions as the endowment (waqf) DOES CIVIL SOCIETY MATTER?

29. Considerable leeway on orienting land policy Not forseeing some challenges At a jurisprudential level LAND MANAGEMENT WHAT INPUTS INTO LAND MANAGEMENT? Traditional Islamic principles Personal reasoning (ijtihasd) Public interest (masalaha)

30. WHY PUBLIC INTEREST MATTERS Benefit of community No rule of law can be violate any of these five essentials and the ultimate intent of the law Complements requirements categories Public interest (maslaha) A tangible benefit Embellishments The perservation of din (religion) Nafs (life) Aql (intellect) Nasl (progeny) Mal (property) Compatibility with Islamic law Essentials

31. Rapid urbanization: a serious issue, similar to cities elsewhere. Relevance of Islamic planning permeate the planning debate, underpinning socio-religious dimensions. easy to romanticize the Islamic city Diverse modified over time Renewed interest in Islamic planning systems may or may not provide wholesome alternative paradigm but should be explored. IS THERE ISLAMIC URBAN PLANNING?

32. Earth has to be exercised with care as a trusteeship (amana) Inviolable zones (al-har’ym) Large grants (iqta), special reserves (hima) as conservation zones Charitable endowments (awqaf) specific environmental or conservation purposes. IS ISLAM INTERESTED IN ENVIRONMENT?

33. Water shortage, disputes crtical in Muslim world Frequently mentioned in Qur’an WATER Questions of individual ownership over water water rights over individual lands bought and sold during the Ottoman period Land could be sold without water rights and vice versa. CAN WATER BE OWNED?

34. HOW DO SADAQA AND ZAKAT IMPACT? Islamic philanthropy is a vital factor in facilitating innovative pro-poor land policies. Zakat is one of the five pillars and obligations of Islam (which many countries have institutionalized) Sadaqa refers t voluntary, meritrius giving Landless are a categry priorities as beneficiaries

35. IS LAND FRAMEWORK GENDER SENSITIVE? In most parts, the Islamic framework for land facilitates gender sensitive approaches or has the potential to do so Facilitate Aspects of the classical or conservative interpretation of Islamic system may be more resistant Resistant Diagram 2 Diagram 3 Gap Diagram 2 Diagram 3 Gap between theory and practice

36. Qur’an refers frequently to rights and justice. Strong socio-economic rights foundation which supports extensive land rights Some differences between classical Islamic conceptions and modern human rights. Possible and necessary to find areas of complementarily and convergence. IS ISLAMIC FRAMEWORK RIGHTS BASED?