Land Ownership and Development of Islamic Property Law Research Paper

Introduction

The right to own land is part of a larger set of property rights. In Islam, “the associations related to property are regarded as social relations, referred to as mu’amalat under the Islamic law.”¹ These relations are different from ibadat, which refer to associations with worship.

The rights to property and land in the Muslim world are affected not only by internal structure of the society (through the Islamic law) but also by external forces which take the form of human rights organizations and development policies that emphasize on a fair and equitable society. These religious and moral contexts of land could be internalized and included into property relationships of numerous communities in several ways. The Islamic Law has a profound impact on all matters pertaining to land and property including acquisition, access, management and inheritance.

Property and Land in Islamic Theory

Land has been referred to in many paces in the Qur’an and these references are the basis of property rights and respect to them. Individual property rights are well established but are created as a consecrated trust in accordance with the principle of harmony, stewardship and confidence. Muslims believe that property and land are obtained from God, but at present God entrusts these properties to human beings for their use through responsibility or trust. Nevertheless, for the most part it is not seriously contested that the rights to possess, take pleasure in or separate from land exist in Islam. Nevertheless, their authority is obtained from conformity to the Islamic principles.²

Unlike Western laissez-faire individual property rights which no one interferes with, the Islamic property rights are granted based on the condition that the owners will not use the property in a wasteful or exploitative manner or in a way that deny others their rightly obtained property. The Qur’an insists that people from all walks of life should respect the property rights of everyone regardless of their religious affiliations. Non-Muslims thus have the same property rights as the Muslims. The Qur’an also has laws and regulations that govern the guardianship of the property of orphans, warnings against property misuse and the inheritance rights of women. The unique Islamic land tenure agreements can speed up the process of access to land.³

Security of tenure means that the right of gaining access to and making use of land and property is embodied in a familiar set of rules and this right is justifiable. Muslim scholars have a common agreement that property rights are one of the five basic values of Islamic law which need to be protected as a matter of precedence. The Prophet put emphasis on this issue by proclaiming to the gathered congregation that “nothing shall be legitimate to a Muslim which belongs to a fellow Muslim unless it was given freely and willingly” (Cammack 22).⁴

Property and housing fall within the personal sphere in Islam and are thus totally cushioned. This shows the esteem given to property rights by Muslims. Under the Islamic laws, theft is regarded as one of the crimes which are liable to be punished by a pre-created harsh punishment (Hadd) found in the Qur’an.

Islamic hypothetical assertion that ownership of anything belongs to God solely is a symbol that ownership depends on just and redistributive principles. The Islamic Law, particularly as ingrained in the Qur’an asserts that land belongs to God but is given to man to help him while here on earth. The Islamic Law further asserts that the State manages the land and property on behalf of God but for the good of all mankind. As a result, the Islamic Law adheres to the redistributive principle which promotes social welfare rather than private gains. This is illustrated by the fact that the poor in the Muslim societies have rights against their government as well as those with vast wealth.

Factors Affecting Islamic Land Doctrines

Although the Islamic laws have overall principles that govern the rights to property, the Qur’an failed to illustrate on land tenure, regulation and administration or the mechanics through which it is protected, thus leaving it to subsequent generations to build on the field. Although the practice pertaining to different Muslim ruling empires cannot be simplified, one thing remains similar in all these empires and that is the promotion of personal land rights. Nevertheless, certain events – for instance colonialism – and domestic events have played a part in the development of modern land regimes. The rights to property throughout the Muslim economies cannot be simplified or highly attributed to religious or historical factors solely. The rights are also a result of modern economic situations and decisions.⁵

A number of Muslim economies have been hastier than others to respond to the calls for the opening up of their markets to the global market as well as to the problems of globalisation. The union of traditional and Islamic law has been a significant element in the creation of laws and practices that govern land ownership and use in Muslim countries. In addition, in Muslim countries, land has several cultural connotations and connotations. In the past, Arabs have always viewed land as the most precious asset and as a component of their individuality. Land is also significant to their personal esteem and honour.⁶ Other similarly vital elements including family and kinship are a big contribution to influencing the process and impact of property rights.

Land Administration in the Muslim Context

The relationship between good governance and a competent land policy is well developed. The 2004 Arab Human Development report inferred that the state of freedom and good governance in the Arab world varies from poor to critically poor, although there are some positive elements too. The supposition that there exists an Arab framework of governance has been criticized. At the same time, many of the studies surrounding Islam touch on the Islamic State as a utopian past or idealised future. “Principles of consultation (shura) and justice (adl) are well incorporated in Islamic awareness and governance throughout the centuries and are powerful.”⁷

Contrary to the scholars who regard Islam and democracy as being irreconcilable, there are other scholars who assert the opposite. However, it is obvious that Western and Islamic frameworks of democracy are different. Research studies that focus on the customary and contemporary Muslim civil society also assert that customary civil society institutions for instance the endowment (waqf) are in sharp contrast to Western motivated agreements.

With the exception of the limitations imposed by the State regarding the activities undertaken by civil societies in majority of the Muslim States, there are hypothetical quagmires surrounding the non-governmental organizations.⁸ The degree to which these organizations can conform to global principles and methodologies and their associations with Islam usually influences their position with the state and the society. Civil society in the Muslim society is therefore manifested in several ways, for instance, through religious and charitable organisations.

In order to fully understand the Islamic administration of land, people often make a reference to the Ottoman land history. The Ottoman land administration was mainly a government based on the collection of revenues through taxation which in turn had significant consequences on social and land structures. Nevertheless, the Ottoman Empire experienced falling power of the State in the seventeenth century which forced the administration to introduce tax farms through which land revenues could be collected. These tax farms were successful and survived until the beginning of the nineteenth century.

The experiences of the Ottoman land administration, which were in part based on Islamic principles but similarly influenced by other socio-political factors, have valuable lessons for today’s evaluation of Muslim land and property ownership laws.

Although land and property in the Muslim world are managed in accordance with the Islamic law, principles based on the public interest also play a key role in the land and property management. The protection of property rights, as a component of fundamentals of Islamic law, is dependent on the consideration of public interest as a subject of precedence. Customary Islamic principles that govern land did not forecast the current day problems of urbanisation, land conflicts, innovative means of use of land, environmental degradation as well as the problems of access to land and safety of tenure.

Nevertheless, at the policy level, a State that adheres to the Islamic principles has substantial scope in adjusting its land policy to fit the gains of the society through public interest (maslaha). Particularly, “this policy instrument can address the rights of the landless poor, slum-dwellers and squatters.”⁹

Islam and Contemporary Land Issues

One of the essential problems facing any land administration is the creation of suitable cadastre systems which can give crucial information and make clear the legal rights. Apart from a western creation, cadastre has been seen in the pasts of a number of Muslim countries.

The original types of cadastre in Islamic society were created in the seventh century by the Prophet. During the Ottoman period, a land registration system thrived with wide-ranging land information records that contained all obtainable land-related information. In spite of its determined extent, the registration was not able to be completed for the whole Ottoman territories. The perceptions of the Muslim countries towards cadastre or tiling are different but there is no element in Islamic law that discourages these efforts. On the contrary, Islam seems to encourage cadastre.¹⁰

Palestine, which is at the centre of the Arab-Israeli land dispute, is a clear indicator of the complications and unique features of Islamic (and more specifically the Ottoman) land administration framework. Palestine adhered to majority of the Ottoman land administration features such as the Ottoman Land Law of 1858. Nevertheless, Palestine also had its own precise laws, for instance, those that relate to land registration and rights to own land by the foreigners.

Like other territories of the Ottoman Empire, substantial parts of the land were owned by the State. These portions of land were initially transferred to Britain in 1917 and later to Israel when it was established in 1948.¹¹ Instead of entire confiscation, Israeli policy used discriminatory analysis of Ottoman and Islamic principles of State and dead lands, together with very high evidentiary conditions for proof of ownership, to make land a public property. The Israeli land title registration office is still known as the ‘Tabu’ office and title registration certificates as ‘Tabu’ papers. These terms originated from Ottoman. One of the central elements of the Arab-Israel land dispute is the reliability of the Ottoman land records.

The high rate of urbanisation and its accompanying challenges has raised the question ‘Are Cities in the Middle East Sustainable?’ (Rosen 41).¹² These challenges relating to urban management are not any different from those currently being experienced by non-Islamic cities. Nevertheless, the significance of Islamic planning and rights is central to the planning issue, reinforcing socio-religious aspects. However, some people ask ‘Why would one expect Islamic cities to be similar and in what ways?’ (Lawrence 42).¹³ The renewed attention given to Islamic planning systems may or may not offer a good option hypothesis but it needs to be examined.

Environmental problems, especially those that originate from water shortages and conflicts are important in the Middle East and other areas of the Muslim world. The Qur’anic perception asserts that “everything on the earth was created for humankind as God’s bounty (ni’amah) to be exercised with care as a trusteeship (amana)” (Mitchell 103).¹⁴ Environmental protection can be nurtured by the existence of a high number of institutions and systems. The issue surrounding private ownership over water, contrary to the rights of access to water, is central to Islamic debate. Hirsch argues that, “in contrast to classical Islamic theory in which all land is held in trust for the benefit of the community, water rights over individual lands were bought and sold during the Ottoman period, and this continues to this day,” (39).¹⁵

Centrality of Islamic Law in the Muslim World

Law by and large is an important channel in the creation, expression and execution of land policies. The law helps to define the term property rights and its meaning and at the same time it gives information about land tenure systems and standards of land administration. Around the globe, there are differences in the manner in which property rights are created, the kinds of property rights accepted, the regulation of varying types of utilization and users as well as the enforcement systems.

Regardless of the degree and type of Islamic law that is authorized in Muslim countries, in the awareness of much of the Muslim world, land tenure systems and notions are by and large established or recognized, to a certain extent, through making a reference to the Islamic law. As a result, there is no sphere of ‘Islamic land law’ but instead it is a combination of interrelated subject matters or fields which experts identify as such. As a result, the rights to possess land in the Muslim society are not viewed as a separate entity but instead they are best comprehended in a holistic manner, that is, they are part and parcel of other parts of the Islamic law.¹⁶

Scott-Hunt and Lim state that, “Islamic law is the epitome of Islamic thought, the most typical manifestation of the Islamic way of life, the core and kernel of Islam itself,” (43).¹⁷ A great chunk of Islamic law governing land, property and housing are found within the area of social transactions (muamalat) and as a result they are subject to a higher level of analysis than issues surrounding religious observances. Islamic law makes no sense in the absence of the moral principle of the sacred revelation. There are several essential Islamic notions or ‘golden threads’ that incorporate the spirit of the Islamic law (Shari’a).

They include: “rights (haqq), justice (adl) and equity (qist) which are reiterated in the Qur’an,” (Scott-Hunt and Lim 51).¹⁸ Islamic law needs to be understood from a socio-historical perspective and deliberations although it may have surpassed classical analysis. The basic standards of Islamic law (Maqasid al-Sharia) give importance to the property rights as a major concern therefore there is no law that can oppose this fundamental principle (daruriyyat). In addition, it mandates the State policy, through public interest or social welfare (masala), to operate in a manner that promotes it. Therefore, property and land rights are the core of Islamic law but they must be dealt with within the context of Islamic methodology.

Sources of Islamic Law relating to Land

The classical law that governs property and land rights went through a number of periods of influence which include: the Ottoman, colonial and post-colonial/modern eras. In 1858, the Ottoman government merged a number of laws that existed at the time into a Land Code. This Land Code became the basis upon which majority of the States in the contemporary Muslim world obtain their land tenure classifications. The greatest chunk of the present-day Islamic Property law has its roots in the Western legal framework.

In the Muslim society, the sources of law have a specific laid down hierarchy. Thus, cases are handled based on the hierarchy of these sources of law. There are two main and elementary sources of law which include the Qur’an and the Sunna. The Qur’an puts emphasis on the universal access to and rights of property and land. These emphases are crucial, for instance, when it comes to the issue surrounding women and their rights to land and property.

In cases where an Islamic property system are handled overtly by the Qur’an, majority of the Muslims would consider the issue not subject to autonomous reasoning but that instead it should be analysed from a holistic point of view. An additional significant source of law is found in the records of the expressions and actions of the Prophet (Sunna), which exist in the form of an assorted compilation of narratives (hadith). In this source of law, the difficulty is to eliminate bogus gender disparaging traditional customs that are viewed as Islamic axioms contrary to the gender empowering Qur’anic principles. Contemporary rights relating to land, property and housing within the Islamic context are still deeply ingrained in the two basic sources of Islamic law.

“Reasoning by analogy (qiyas) and consensus (ijma) are other sources of Islamic understanding or law (Shari’a), which are however secondary in nature.”¹⁹ Consensus (ijma) is generally perceived to imply the undisputed accord held by those who are experts in the faith at a given time on a particular subject matter, although this is a debatable issue. It is consensus which permitted protection over the property of minors. This allowance has been expanded by qiyas to include the protection of minors in marital relationships. Mir-Hosseini states that, “reasoning by analogy is a form of deduction in comparable cases which links the reasoning back to the original sources of the Qur’an and the tradition of the Prophet (Sunna),” (51).

Besides the primary and secondary sources of law, there are other supplemental sources of law which include “juristic preference (istishan) which enhance the flexibility and responsiveness of Islamic law (Shari’a) and which demonstrate the plurality of method in Islamic law since some of these tools are only closely associated with particular Sunni schools,” (Mitchell 32). This raises the notion of juristic preference, where freedom to act can be practiced in cases of mis-application of justice. Likewise, a common rule inherent in some Islamic schools of law is that of “necessity and need.”²⁰ Another supplementary rule of law is founded on the public interest and social welfare.

This rule of law has its origin in the Maliki School and it gives the judges the discretion to solve the cases presented to them. Nevertheless, this discretion must be applied in a manner that promotes the welfare of the parties involved in the case. The exception to this rule of law is that what is decided by the judges is not addressed by the Shari’a otherwise it would contradict it. Mir-Hosseini further asserts that, “independent personal reasoning (ijtihad) is an established wing of Islamic jurisprudence,” (41).²¹ It is not considered to be a source per se but an interpretative mechanism which is not limited to judges but is the divine obligation (fard kifaya) of each capable person.

Islamic Law in a Pluralist World

Recognizing the existing Islamic school of jurisprudence is a pre-requisite to engaging with the Islamic legal dialogues in a specific framework. For instance, Hanafism, the most prevalent of the four schools is regarded as the most flexible to creative elucidation of its chief principles.²²

The legal systems of the Muslim world show significant differences due to their particular past and colonial framework, the State philosophy and the degree to which Islamic law can rule over secular or traditional laws. The legal systems of majority of the Muslim states have gone through substantial secularization to different extents, in spite of the ethical definiteness of its religious past, due to Western influences. In spite of different pasts and types of government, there is astounding similarity among the different judicial systems of the Muslim world.

The custom of Islamic law in Muslim world, therefore, asserts compound and controversial association between specific varieties of Islamic law and other types of law – state or customary law. Scott-Hunt and Lim argue that “the normative systems are at times known as quasi-legal or informal, but legality and illegality are not so apparently distinguished. Morocco, Indonesia and Egypt illustrate how paying attention to ‘legal pluralism’, or legal dualities/contradictions, may promote our legal comprehension of both Islamic law and the multifaceted, overlapping and rival traditions that are found in Muslim countries (41).”²³

The Law of Islam has its roots in the era of the Muslim’s Prophet. It was founded on the pre – Islamic cultural values and practices. As the faith spread across different Islamic levels it brought about a mutual relationship between the old and new Islamic cultures. Modern Islamic jurists who played an active role in validating customs in Islamic context agreed to and accepted the same on conditions that it was not contradicting Islamic principles.

In many Muslim societies, the customary beliefs and Islamic culture have nearly been merged together and this calls for a lot of understanding and soberness when differentiating them with the existing land practices. Positive Islamic principles are usually used to replace old traditions that are found not only to be unacceptable but also show a great level of injustice to the citizens.

Islamic Law in Action

Despite the fact that many Muslims adhered to the general Islamic law, the Islamic law has always run parallel to the secular law. During the Ottoman Empire era, the administration established a sequence of secular codes which were known as qanun. This happened at a time when the Islamic laws were highly promoted and adhered to. The Ottoman administration also established various institutions and persons to ensure the implementation of these different laws and interests within the Islamic systems. Included in this function were the Qadi (Islamic Jurisdiction judges), Muhtasib or Ombudsman as they were known.

These were the administrative officers, judges who took care of secular matters. There were also the informal but legal authorities known as the Muftis who issued fatwa or responsa and advisory opinions and finally the ones exercising ijtihad or personal reasoning who were known by the name Mujtahids. Muslim judges gave more caution to moral values and social goals and the need to instil legitimacy within multiple schools of legal thoughts.

The Qadi courts’ main work was to balance the rights or duties owed to God with those of individuals to an extensive chronological scale.²⁴ Classical judges pay much attention to the Qadis and their qualification enlightening them on matters of evidence and court procedures. They were also prepared on Adab al – qadi, which is a type of literature which shows the judge how to behave while in the court room. The qadi is also required to be familiar with the discretion of the judges as well as practical assurances, which are crucial features of the Islamic law.

In most cases the Islamic system did not need lawyers since most of the offenders handled their own cases by either pleading guilty or innocent. Most cases that came as a result of a dispute or a disagreement were dealt with within the formal processes acceptable to the community and the society as a whole. Issues of medication and conciliation are well elaborated in the Quran which is the Islamic holy book or in the Prophetic laws and so can easily be referred to in case there is any medical or conciliatory need. They include Sohl (conciliation), medication (wasta) and arbitration also known as takhim.²⁵

In order to assess the applicability of Western methods of resolving disputes in non Islamic regions such as the Arabic-Islamic cultures experts are now taking into consideration the indigenous schools of thoughts and feelings coupled with locally based rituals to resolve, reduce and manage disputes.

Muslim states and societal members have duties such as promoting good (ma’ruf) and stopping if possible or preventing munkar (wrong doing). Since time immemorial of the Islamic history, “the hisba agency was governed by an educated judge (muhtasib) who served as a market inspector, chief public medical or health officer, land use enforcer and receiver of complaints.”²⁶ The hisba agency is also highly applicable in the present day Muslim societies.

The rights to land and property is a part of the Islamic legal context which is related to social relations or muamalat as it is commonly known. It is very susceptible to flexibility and innovation though other Islamic laws and principles can be applied. Despite the fact that well cultured Islamic rights literature supports the pro-poor, innovative and inclusive land and property regime, the theory surrounding the Islamic law is rife with challenges that affect its translation and thus it is difficult to articulate its thoughtful ideals and objectives. Thus, “a number of juristic works should be systematically taken into consideration so as to find methods of access to land security of tenure and protection from forcible eviction even though Islamic legal raw materials and concepts exist.”²⁷

Muslim Women and Property

A study of land and property rights in any society cannot be complete without examining the issue of gender. This is because in many societies there has always been the issue of gender discrimination when it comes to land and property ownership and rights. Women have often been discriminated against men in this particular issue. This is further worsened by laws and regulations that make it difficult for women to acquire or manage property and land. For instance, in such societies women can only acquire land or property through their husbands or fathers. As a result, these laws present challenges for women who are unmarried. This section will examine the issue of land and property rights as they affect women in the Muslim society.

Debunking Stereotypes Regarding Muslim Women

To regard or refer to the stereotyped picture of Muslim women as passive victims would appear to be a requirement for developing reasonable methods for accessibility of land to women. Muslim women have devised a way of expressing their opposing and often disagreeing points of views or opinion while at the same time systematically and cautiously accepting chosen western methods.²⁸ A challenge for most western commentators who happen to be atheist, agnostics or secular has been how to tackle what is normally regarded. However, such a hard approach does not only make believing women feel left out but also leaves out or neglects a broader range of practice that offers positive effects on women’s lives.

A number of ways can be used in evaluating land, property and housing rights for Muslim women. One of them is by using the International human rights law standards. However, many Muslim countries do not view the universal human rights law in a positive light. Indeed, many of these countries are not signatories to these universal laws. On the other hand, for the countries that are signatories to the laws, majority of them have exempted themselves from abiding by some specific clauses within the laws that focus on gender matters. To worsen the situation, many of the universal human rights laws do not regard gender issues a matter of importance while some of them fail to provide strategies that ensure that the gender-based laws are implemented by the signatory countries.²⁹

Women’s Rights to Property under Islamic Law

Generally “all the major Islamic legal document support women’s right to acquire, hold, use, administer and dispose of property. A Muslim woman holds an independent, legal, economic and spiritual identity and independence” (Sonbol 66). The Qur’an states that women “shall be legally entitled to their share and that to men is allotted what they earn, and to women what they earn” (Sonbol 67). Men only regard a property to be lawfully theirs if women decide to transfer that property to them.³⁰ The rights of women to own, posses, manage and inherit land or properties have their basis on a number of Islamic laws such as family law, property law and economic law.

Muslim women have fewer rights of inheritance under the Islamic mandatory succession rule. For a long time this has been considered as a contributor of inferior state of women under the Islamic law. People who support the thought that women’s property right under the Islamic law should be given a wholesome approach refer to the Qur’anic statement that “men spend out of their priorities for women” (Sonbol 63).³¹

The discussion continues to an extent that women do not have any recognized financial obligation. In addition, Muslims usually assert that there exists alternative means of possessing property, for instance, “through gifts, dower, and maintenance in marital relationships and as beneficiaries under waqf which is also considered to be a component of gender property rights compensatory scheme.”³² There is no existence of any Islamic law that prohibits women from possessing equal property rights with men apart from situations dealing with inheritance.

Social History of Women’s Property Rights

The ancient records of how women are treated equally with men under the law, in conjunction with models of women who control and run property, offer tangible and strong proof of the existence of mechanisms within the Islamic lawful structure that promote standing of women in modern societies. In the traditional Islamic history, Muslim women had a number of public roles to play and without a doubt they fully implemented their property rights. In his sermon to bid farewell to his followers, the Prophet insisted on equal rights to all Muslims irrespective of gender orientation. To prove his position on women’s rights to own property, he ensured that his wives possessed their own individual properties that were not tied to his.

Women’s rights in the Muslim society are also illustrated by the powerful positions given to women in the society. Feillard argues that “the first convert to Islam (Khadija), its first martyr (Sumayya), the first to grant refuge to the Prophet at Madinah when he fled from persecution at Makkah (Umm Sa’id), the keeper of the keys to the Holy Ka’aba, the custodian of the first copy of the Qur’an (Hafsa), the manager of the first hospital (Rafidah Aslamiyya), one of the Imams appointed to lead the prayers of both men and women (Umm Waraqa) and a superintendent at the market at Madinah (Samra’ bint Nuhayak al-Asadiya) were all women” (p. 111).³³

Customs, Family and Women’s Property Rights

The right to own property by a woman is determined by her social status, her position in the lifecycle and her flexibility within her family and her household. In Muslim families, the issue of property ownership is usually a matter that is subjected to explicit and implicit conciliation and haggles. To be a property owner, women usually use various methods some of which may be seen as sensitive but very reliable.

As a result of this Tucker said that “as part of the economic, social and political landscape, the family evolved in response to variations of its role…operating differently as an institution of social control in different environments” (205).³⁴ Thus the family is a solid combination of different areas of experiences for various placed members with opportunities for many strategies by women, “some of which may appear spontaneous but very workable” (Tucker 206).³⁵

In assumption, the accessibility of a woman to property and land comes to her at various points of development in life, more evidently through her right to dower and maintenance mostly in marriage. Dower (mehr/mahr) is a form of payment made to the woman by the husband. It can be in the form of money or property and is known as prompt dower when paid upfront. The husband can also promise to pay (deferred dower) later to the wife as a result of marriage. Dower is meant for usage by the wife and she can give it away as she pleases. Muslim women can empower themselves in many ways.

For instance, they can do this by using the Islamic right of reasonable dower, with no dread of social costs or social penalty. It is undoubted that a wife has the right to or is permitted to sufficient maintenance during the existence of her marriage. Practically a wife can lose her maintenance rights under conditions such as allegations of disobedience to the husband (nushuq). There are contradictions involving the provision of maintenance with regard to divorced wives. Apart from the right to specific dower traditional judges maintain that the divorced wife has no financial rights against her previous husband, even if the husband had an informed divorce (talaq) to his wife.³⁶

Impact of Modern Legal Reforms

During the 20^th Century, a number of legal reforms were instituted by the Islamic societies which in turn had a profound impact on women and their property rights as well as access to land. Nevertheless, these legal reforms did not necessarily enhance the rights of women to a great extent. The modern land reforms employed across the Middle East did not accomplish a lot by their method of reorganization and consequently did not consider women.

In reference to the land reforms established by Egypt, only the rural middle class and to a lesser scope some rural working class men benefited from the land reforms.³⁷ When it came to women, only a handful of them had rights over land and these were women whose husbands had passed on and left them with young sons. As a result, non-divorced women with young sons held demonstrations that opposed the law in 1952.

The procedure of codifying, harmonizing or modernizing individual codes as family law reforms was termed as being triggered by colonial influences even though it was done by post colonial Muslin States. It would be surprising if these results slightly changed women’s right reforms since this was not their intended purpose. There are various descriptions in the Meghrab reforms that are worthless. For example, the Tunisian Code asserts that wives are required to make contributions to their family’s welfare only if they have the ability to do so. ³⁸ This implies Muslim married women with sources of income can help their husbands to pay the household bills.

However, married women who lack sources of income are not obligated to do so. In such situations, the upkeep of the household is the sole responsibility of the husband. The new Modawana in Morocco absolutely excludes in its provisions the perception of a woman’s obedience (ta’a) and disobedience (nushq) to her husband. The code considers joint ownership of property and decision making within the marriage.

Conclusion

In the Muslim world, the right to own land and property is ingrained in many sources of reference such as the Islamic Law (Shari’a), the Qur’an, the Sunna, the expressions and actions of the Prophet (Sunna), reasoning by analogy (qiyas) and consensus (ijma).

However, there are differences between the genders when it comes to owning land or property. For women, their rights to owning land and property are determined by their social status, their position in the community and their flexibility within their families and households. The Islamic law regarding ownership of land and property has its roots in the Ottoman Empire which was driven by revenue and taxation which had significant consequences on social and land structures. The experiences of the Ottoman era, which were in part based on Islamic principles but similarly influenced by other socio-political factors, remain valuable to present day’s analysis of Muslim land and property ownership laws.

Works Cited

Antoun, Richard. Law and Islam in the Middle East. New York: Bergin & Garvey, 1990.

Arkoun, Mohamed. Liberal Islam: A Source Book. New York: Oxford University Press, 1998.

Bentham, Jeremy. The Theory of Legislation. London: C. K. Ogden, 1931.

Bowen, John. Islam, Law and Equality in Indonesia. Cambridge: Cambridge University Press, 2003.

Cammack, Mark. Inching Toward Equality: Recent Developments in Indonesian Inheritance Law. London: WLUML, 2000.

Esposito, John. Women in Muslim Family Law. Syracuse, N.Y: Syracuse University Press, 2001.

Feillard, Andree. Indonesia’s Emerging Muslim Feminism. New York: New York University Press, 1997.

Guity, Nashat. Women in the Middle East and North Africa: Restoring Women to History. Bloomington: Indiana University Press, 1999.

Hallaq, Wael. Islamic Legal Theories. Cambridge: Cambridge University Press, 1997.

Hirsch, Susan. Pronouncing and Persevering: Gender and the Discourses of Disputing in an African Islamic Court. Chicago: University of Chicago Press, 1998.

Mir-Hosseini, Ziba. Marriage on Trial: A Study of Islamic Family Law, Iran and Morocco Compared. London: I.B. Tauris, 1993.

Mitchell, Timothy. Colonizing Egypt. New York: Cambridge University Press, 1991.

Moors, Annelies. Women, Property and Islam: Palestinian Experience, 1920-1990. New York: Cambridge University Press, 1995.

Nasir, Jamal. The Islamic Law of Personal Status. The Hague: Kluwer Law International, 2002.

Rosen, Lawrence. The Justice of Islam: Comparative Perspectives on Islamic Law and Society. Oxford: Oxford University Press, 2000.

Scott-Hunt, Susan and Hilary Lim. Feminist Perspectives on Equity and Trusts. London: Cavendish, 2001.

Shatzmiller, Maya. Women and property rights in Al-Andalus and the Maghrib: social patterns and legal discourse. New York: New York University Press, 1995.

Sonbol, Amira. Women, the Family, and Divorce Laws in Islamic History. Syracuse, NY: Syracuse University Press, 1996.

Tucker, Judith. In the House of the Law: Gender and Islamic Law in Ottoman Syria and Palestine. Berkeley: University of California Press, 1998.

Wadud, Amina. Qur’an and Woman: Rereading the Sacred Text from a Woman’s Perspective. New York: Oxford University Press, 1999.

Footnotes

1. Jeremy Bentham, The Theory of Legislation (London: C. K. Ogden, 1982), 52.
2. Lawrence Rosen, The Justice of Islam: Comparative Perspectives On Islamic Law And Society (Oxford: Oxford University Press, 2000), 32.
3. Jeremy Bentham, The Theory of Legislation (London: C. K. Ogden, 1982), 52.
4. Mark Cammack, Inching Toward Equality: Recent Developments in Indonesian Inheritance Law (London: WLUML, 2000), 22.
5. Wael Hallaq, Islamic Legal Theories (Cambridge: Cambridge University Press, 1997), 62.
6. John Bowen, Islam, Law and Equality in Indonesia (Cambridge: Cambridge University Press, 2003), 32.
7. Mohamed Arkoun, ‘Rethinking Islam Today’ in Charles Kurzman (ed) Liberal Islam: A Source Book (New York: Oxford University Press, 1998), 17.
8. Richard Antoun ‘Litigant Strategies in an Islamic Court in Jordan’ in Dwyer, Daisy Hilse (ed) Law and Islam in the Middle East (New York: Bergin & Garvey, 1990), 41.
9. Susan Hirsch, Pronouncing and Persevering: Gender and the Discourses of Disputing in an African Islamic Court (Chicago: University of Chicago Press, 1998), 31.
10. Timothy Mitchell, Colonizing Egypt (New York: Cambridge University Press, 1991), 93.
11. Susan Scott-Hunt and Hilary Lim, Feminist Perspectives on Equity and Trusts (London: Cavendish, 2001), 31.
12. Lawrence Rosen, The Justice of Islam: Comparative Perspectives On Islamic Law And Society (Oxford: Oxford University Press, 2000), 41.
13. Lawrence, 42.
14. Timothy Mitchell, Colonizing Egypt (New York: Cambridge University Press, 1991), 103.
15. Susan Hirsch, Pronouncing and Persevering: Gender and the Discourses of Disputing in an African Islamic Court (Chicago: University of Chicago Press, 1998), 31.
16. Richard Antoun ‘Litigant Strategies in an Islamic Court in Jordan’ in Dwyer, Daisy Hilse (ed) Law and Islam in the Middle East (New York: Bergin & Garvey, 1990), 41.
17. Susan Scott-Hunt and Hilary Lim, Feminist Perspectives on Equity and Trusts (London: Cavendish, 2001), 43.
18. Susan Scott-Hunt and Hilary Lim, Feminist Perspectives on Equity and Trusts (London: Cavendish, 2001), 51.
19. Ziba Mir-Hosseini, Marriage on Trial: A Study of Islamic Family Law, Iran and Morocco Compared (London: I.B. Tauris, 1993), 43.
20. Timothy Mitchell, Colonizing Egypt (New York: Cambridge University Press, 1991), 36.
21. Ziba Mir-Hosseini, Marriage on Trial: A Study of Islamic Family Law, Iran and Morocco Compared (London: I.B. Tauris, 1993), 43.
22. Wael Hallaq, Islamic Legal Theories (Cambridge: Cambridge University Press, 1997), 34.
23. Susan Scott-Hunt and Hilary Lim, Feminist Perspectives on Equity and Trusts (London: Cavendish, 2001), 41.
24. Jamal Nasir, The Islamic Law of Personal Status (The Hague: Kluwer Law International, 2002), 34.
25. Timothy Mitchell, Colonizing Egypt (New York: Cambridge University Press, 1991), 36.
26. Jeremy Bentham, The Theory of Legislation (London: C. K. Ogden, 1982), 52.
27. Timothy Mitchell, Colonizing Egypt (New York: Cambridge University Press, 1991), 36
28. Nashat Guity, Women in the Middle East and North Africa: Restoring Women to History (Bloomington: Indiana University Press, 1999), 91.
29. Annelies Moors, Women, Property and Islam: Palestinian Experience, 1920-1990 (New York: Cambridge University Press, 1995), 31.
30. David Pearl and Werner Menski, Muslim Family Law (London: Sweet & Maxwell, 1998), 44.
31. Amira Sonbol, Women, the Family, and Divorce Laws in Islamic History (Syracuse, N. Y.: Syracuse University Press, 1996), 63.
32. Annelies Moors, Women, Property and Islam: Palestinian Experience, 1920-1990 (New York: Cambridge University Press, 1995), 31.
33. Andree Feillard, Indonesia’s Emerging Muslim Feminism (New York: New York University Press, 1997), 111.
34. Judith Tucker, In the House of the Law: Gender and Islamic Law in Ottoman Syria and Palestine (Berkeley: University of California Press, 1998), 205.
35. Judith Tucker, 206.
36. Amina Wadud, Qur’an And Woman: Rereading The Sacred Text From a Woman’s Perspective (New York: Oxford University Press, 1999), 116.
37. Maya Shatzmiller, Women and property rights in Al-Andalus and the Maghrib: social patterns and legal discourse (New York: Oxford University Press, 1995), 88.
38. John Esposito, Women in Muslim Family Law (N.Y: Syracuse University Press, 2001), 23.