ISLAMIC LAND LAW MODULE 2

1. ISLAMIC LAND LAWMODULE 2 LAND, PROPERTY AND HOUSING RIGHTS IN THE MUSILM WORLD

2. Understand formal hierarchy of sources of Islamic law Appreaciate secondary sources of Islamic law and their possibilities for developing land and property rights, as well as the supplemental law generating mediums Regonise schools of Islamic jurisprudence and appreciate particular brand of Islamic law generally applicable to all parts of Muslim world Appreciate the fundamental religious dimension to land for Muslims SESSION LEARNING OUTCOMES At the end of this session participants should be able to: Company Logo

3. YOUR OPENING THOUGHTS • What experience do you have of Islamic law? • Do you think Islamic law is relevant in Muslim societies to land issues? • How can Islamic law facilitate property and housing rights? Company Logo

4. WHAT ARE THE KEY CONCEPTS • Islamic law: a central feature of the lived experiences and consciousness • Islamic law: a evolving, and responsive sphere • Islamic law: a hierachy of sources with the Qur’an, Sunna (traditions) taking precedence. • Islamic law(Shari’a) is different from Islamic jurisprudence (Fiqh) • Legal systems vary according to their specific historical and colonial context Company Logo

5. WHY ARE THESE CONCEPTS RELEVANT • Foundational principles recognise property rights protections as priority • Human endeavor interprets and implements the law • Islamic law exsits in different forms and interacts with secular or customary norms. • The Qur’an and Sunna generally provide support to land and housing rights. • Covers areas such as family law, property law, econimic law, revenue law as well as public law Company Logo

6. HOW CAN THE CONCEPTS BE USED • Independent personal reasoning (ijtihad) could further develop Islamic theory in the areas of land, housing and property rights. • Alternate dispute resolutions include conciliation (sulah), mediation (wasta) and arbitration (takhim). • Differentiate Islamic and customary practices to weed out discriminatory practices. • Islamic law often coexists with other complex, overlapping and competing norms – referred to as legal pluralism. • Under Islamic law, women have extensive land rights. Company Logo

7. IS ISLAMIC LAW IMPORTANT TO MUSLIMS? • A central feature of the lived experience and consciousness, helping to shape lives in an Islamic way. • Religious norms are formally included within most legal systems in Muslim countries. • Property and land rights lie at the very heart if Islamic law, but must be approached within the Islamic methodological framework. Company Logo

8. A man made code based on religious principles • Primary sources are divine (the Qur’an), human endeavor or interpretation within an authentic Islamic methodological • Interpretive framework (usul al-fiqh), that determines how contemporary society actualizes it • Islamic law can be seen, therefore, as an evolving, responsive and assimilating sphere of competing ideologies and intersts IS ISLAMIC LAW CURRENTLY RELEVANT? Company Logo

9. IS THERE A FIELD OF ISLAMIC LAND LAW • No systematic field of Islamic land law. • Foundational principles of Islamic law (Maqasid al-Shari’a) recognise property rights as a priority • State policy through public interest or welfare must operate to promote it. • Much of Islamic law relating to land and property falls within the area of social transactions, which under Islamic law are called mu’amalat, as distinct from matters relating to worship (ibadat). • Social transcations are more open to a greater degree of interpretation than matters of religious observation. Company Logo

10. Islamic law: an important factor LAND TENURE States: implement the law Reference to Islamic law (Shari’a) Varing degrees and with different results DOES ISLAMIC LAW INFLUENCE TENURE? Company Logo

11. CAN ISLAMIC LAW BE POSITIVE FOR TNURE? • Significant prospects for interpretation strategies within Islamic law to promote access to land and security of tenure. • Appreciation of the distinctive features and sources of Islamic law (Shari’a) • Islamic dispute resolution mechanisms can contribute towards innivative, procative and inclusive land tools. Company Logo

12. Formal hierarchy Land, property and housing rights Qur’an Islamic Law (Shari’a) Reasoning by analogy (qiyas) Sunna Consensus (ijama) WHAT ARE SOURCES OF SHARI’A? Foundational sources Company Logo

13. Fiqh (Islamic jurisprudence) man made deals with the observance of rituals, morals and social legislation Fiqh controversies are easier to resolve than Shari’a debates Shari’a (Islamic law) Enacted or settled divine law Shari’a debates are more difficult to resolve HOW ARE SHARI’A AND FIQH DIFFERENT? Positive renditions of Fiqh can be used to counter more conservative elements of the Shari’a and promote human rights Company Logo

14. DOES QUR’AN FOCUS ON LAND? • Qur’an has extensive reference to land, property and housing issues • The nature of property, the recognition of women’s rights and the inheritance regime of compulsory shares are all significant areas of Qur’anic stipulation. • Many of the contemporary human rights standards with respect to property and land rights find resonance in the Qur’an. Company Logo

15. IS QUR’AN OPEN TO INTERPRETATIONS? • Muslims believe the Qur’an to be the literal revealed word of God. • Where an Islamic property regime, such as the compulsory inheritance rules, is dealt with explicitly by the Qur’an, most Muslims would not consider it to be subject to independent reasoning (ijtihad). • The Qur’an has to be interpreted as a whole and as such has been viewed by some as fertile ground for reapprasing gender rights and developing pro-poor land strategies. Company Logo

16. WHAT IS TRADITIONS (SUNNA)? Sunna: the second most important source in Islamic law 2 3 1 Doubts over the authenticity of some narrations, or the nattators, led to the development of limited well-acknowledge hadith reports Consists of the records of the words and deeds of the Prophet In the form of a diverse collection of narratives (hadith) Company Logo

17. DOES QUR’AN TRUMP SUNNA? • Where there is a conflict between the Qur’an and the Sunna, the Qur’an prevails. • Problems can arise wherer the Sunna is extensive and the Qur’an is general and limited For example, the basis of the Islamic law on maintenance is a verse in the Qur’an, (4:43) but there are also several hadith on the subject. • The challenge in such cases is to weed out spurious gender deprecating customary norms projected as Islamic truisms Company Logo

18. Consensus (ijma) Reasoning by analogy (qiyas) ARE THERE OTHER SOURCES? Secondary sources Ijma is commonly taken to mean the unanimous agreement among those who are learned in the religion at a particular time on a specific issue A form of deduction in comparable cases, which links the reasoning back to the original sources of the Qur’an and Sunna Ijma allowes guardianship over the property of minors Company Logo

19. IS THERE FLEXIBILITY IN ISLAMIC LAW? Allow discretion to prevent miscarriage of justice Need (Darura) Juristic preference (istishan) Necessity Enhance flexibility and responsiveness of Islamic law Islamic Law Supplemental tools demonstrate the plurality if method in Islamic law. Another supplementary principles is that based on public interest and human welfare (maslaha) Company Logo

20. IS REASONING (IJTIHAD) A LAW SOURCE? • Independent personal reasoning (ijtihad) is an established wing of Islamic jurisprudence. • It is strictly not a source of law, but an interpretative method. • It is not confined to jurists but is the sacred duty of every competent individual. Company Logo

21. HOW DOES IJTIHAD HELP LAND RIGHTS? • Converts the fruits of personal reasoning into a discovery or finding for the benefit of society. • Through this internal Islamic authentic process, Islamic land tenure and property rights can be more systematically clarified. • Ijtihad is also one of the keys to making Islam continuously relevant. • There is considerable scope through independent personal reasoning (ijtihad) to develop Islamic thinking and legal theory in new areas. Company Logo

22. Islamic law within Muslim countries is sometimes extended to non-Muslims and Muslim minorities in some countries. But this is not uniformly applied within a State and there can be regional or local variations. Application of Islamic laws to Muslims in non-Muslim countries such is also controversial. Eg: From Eritrea and Gambia to Kenya and Tanzania Nigeria and Sudan: applies to all residents of Muslim concentrated regions applies only to Muslims DOES IT APPLY TO NON-MUSLIMS? Company Logo

23. DO ISLAMIC LAW, OTHER LAW OVERLAP? • Muslim countries represent a hybridity of legal cultures, including colonial legal systems. • Often, common law is an influence but the extent to which Islamic law prevails and the effects varies and changes Turkey: secularized almost its entire laws, but relationship between religious and modern secular laws continue to be debated Yemen and Indonesian: customary laws co-exsit with Islamic, colonial and modern laws Saudi Arabia and Iran: largely resiste Western legal influences Company Logo

24. DO ISLAMIC LAW AND CUSTOM OVERLAP? • Complex, overlapping and competing norms to be found in Muslim societies. • Existence of a variety of different legal spaces and norms can be the cause of conflict, but also offer choices, as in Indonesia. Company Logo

25. DO ISLAMIC LAW AND CUSTOM OVERLAP? • In Egypt with respect to housing and real estate, people sometimes choose between formal and extra-legal bargaining opportunies using tools. • Choices made regarding Islamic law are not purely religious or juristic but need to be appreciated in their local social amd political context. Company Logo

26. IS LEGAL PLURALISM RELEVANT? • Individuals shuttle strategically between different legal orders, and sometimes ignore altogether formally recognised norms. • Important with respect to property rights, particularly in the context of the informal squatter settlements. • Well-developed land markets are found in such settlements, which are enforceable and legitimate. • The normative systems are sometimes referred to as quasi-legal or informal, but legality and illegality are not so clearly delineated. • Often an “informal” contribution from Islamic legal principles, concepts, structures or forms. Company Logo

27. 발표력 HOW ARE LEGAL CONFLICTS RESOLVED? Great variety within an Islamic jurisdiction in terms of implementing law 연출력 Muslim judges (qadi) dealing with secular matters Muslim judges (qadi) 기획력 Such as an ombudsman (muhtasib), informal legal authorities such as the mufti, who issues advisory opinions (fatwa, plural fatawa) Those exercising ijtihad or personal reasoning mujtahids may beemcountered Administrative offices Ijtihad or personal reasoning Company Logo

28. WHAT IS ROLE OF MUSLIM JUDGE(QADI)? • Role of Qadi within the Islamic legal system balances the ‘ rights’ or duties owed to God with the rights of individuals deals with non-Islamic law or a combination of Islamic or non- Islamic norms Rules relating to social relations, (mu’amalat), have a religious legitimation. Because Shari’a have a secular aspect. Rules of procedure often elaborate, overlap with that of the mufti or other legal offices, sometimes leading to tensions Company Logo

29. WHAT IS ADVISORY OPINION (FATWA)? • Fatwa or Islamic opinion are formal advice based on Islamic principles. • A response to a question issued by someone who is considered knowledgeable on a point of Islamic law or dogma. Company Logo

30. WHAT IS ADVISORY OPINION (FATWA)? • Have influenced and engaged directly with new social situations and challenges. • No formal priesthood or hierarchy in Sunni Islam, so mufti (opnion giver) may draw from range of backgrounds and provide different conclusions. Company Logo

31. DOES ISLAMIC SYSTEMS SERVE JUSTICE? When compromise is not possible, as well as the more formal arbitration (takhim). Mediation (wasta) litigants pleaded their own case No lawyers requires JUSTICE Indigenous ways of managing, reducing and resolving conflicts The believers are called upon to settle their disputes amicably Conciliation (sulah) remain important Company Logo

32. WHAT DOES OMBUDSM (MUHTASIB) DO? • Duty of the Muslim state, as well as members of the society, is to promote good (ma’ruf) and prevent wrongdoing (munkar). • Agnecy of hisba, created to promote both a justice society and an efficient market economy, headed by a learned jurist (muhtasib). • Muhtasib functioned like a market inspector, chief public health officer, receiver of complaints and land use enforcer, but declined as institution. • Ombudsman, with broad oversight, could work in many modern contexts with a defined mandate. Company Logo

33. Historically, Islamic countries were able to dispense justice across gender and religious lines Concerns about women’s access to justice due to patriarchal social structures and court biases. Efforts at training Muslim judges in gender sensitivity have achieved some success Islamic feminists and Muslim NGOs have sought to enhance women’s rights improving legal literacy DO WOMEN ACCESS ISLAMIC COURTS? Company Logo

34. THANK YOU Company Logo