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Private Property in the Muslim Jurists View

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THE PROPERTY VIEW OF MUSLIM JURISTS
There are two views; according to the

1. Hanafis.
2. Malikis, Shafii’s, and Hanbalis

Malikis, Shafii’s, and Hanbalis
According to Malikis, Shafii’s, and Hanbalis who constitute majority of the Fiqh schools, mal includes all permissible things which have financial value.
Definition of the Maliki school According to the Maliki jurist, Al-Shatibi, mal is the thing on which ownership is conferred and the owner when he assumes it excludes others from interference. This definition affirms the mal is the subject matter of ownership. I t also explains that the basis of property rights is the relationship standing between the thing and the person.

Definition of the Shafi'i school

Al-Zarkshi states that, "mal is what gives benefit, i.e. prepared to give benefit", and he continues to say at mal can be material objects or usufructs. The material objects are of two kinds: inorganic solid materials; and animals. The solid materials are regarded as mal in all situations. Amongst the animals one group is such that it has no proper physical scructure to be used for beneficial purposes and therefore not regarded as mal; others are created with submissive natures and are amenable to humarl beings such as domestic animals, and other tamable animals, which can be categorised as mal.

Allama Suyuti refers to ImarnA l-Shafi'i as saying that, “the terminology mal should not be construed except as to what has value with which it is exchangeable; and the destructor of it would be made liable to pay compensation; and what the people would not usually throw away or disown, such as money, and the likes''. With regard to the considerable value effecting the status of property (mal), Imam Al-Shafi'i has made two significant points. Firstly, whatever is evaluated as effectively giving rise to benefit is regarded as financially valuable property, and in contrast, whatever is incapable of showing the effect of giving rise to benefit is excluded from the status of financially valuable property. Secondly, financially valuable property is one which apparently shows the price during a high rate, and one which fails to show it is excluded from that status.

Definition of the Hanbali school

According to Al-Kharqi, mal is something in which there exists a lawfully permissible benefit without resulting from pressing need or necessity. A l-Buhuti, explaining the above definition, maintains that the things in which there is no benefit i n essence, such as insects, or where there might exist benefit but it is legally prohibited, such as wine, or there is a lawfully permissible benefit but only in the situation of pressing need, such as keeping a dog, or in the situation of necessity, such as the consumption of a carcass when in dire need of survival, are excluded from the status of mal.

The Hanafi definition

The Hanafi jurists have laid down several definitions of mal by using different words implying approximately the same meaning and understanding. The varianceis not due to the differences of their understanding of the nature of mal, but it is due to their various ways of expression and its subtle scopes in their treatment of the same meaning. Some of the prevalent definitions accorded by the Hanafi jurists in their books are quoted here as follows: (1) Mal is what human instinct inclines to, and which is capable of being stored/hoarded for the time of necessity (Ibn 'Abidin (Muhammad Amin), Hashiah Minhat al-Khaliq 'ala al-Bahr al-Ra'iq,, vol. 2, p. 57 and vol. 4, p. 105) (2) Existent to which human nature inclines and which the rule of expenditure and its prohibition/restriction applies (Ibid., quoted from Al-Durar, vol. 5, pp. 5s51.) (3) Which has the status of being stored for the purpose of beneficial use during the time of necessity ('Abd al-Salam Dawud al-'Ibadi, sapra, note 1, p. 173, quoting from Al-Talbih, vol. 2, p.98.) (4) Which has been created for che goodness of human beings and in regard of which scarcity and stinginess apply. (Ibid., quoting from Al-Talbih, vol. 2 p. 230.

Al-Mal: The Concept of Property in Islamic Legal Thought
Author(s): Muhammad Wohidul Islam Source: Arab Law Quarterly, Vol. 14, No. 4 (1999), pp. 361-368 Published by: BRILL Stable
URL: http://www.jstor.org/stable/3382152
Accessed: 01/08/2009 04:23

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