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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AL-MAL: THE CONCEPT OF PROPERTY IN ISLAMIC LEGAL THOUGHT

Muhammad WohidulIslam*

CENTRAL

IDEA

OF MAL

Human relationshipsin social life are multifarious,intertwinedand complicated; and this is truer particularly in various types of legal transactions. These transactionsas a whole involve, closely or tangentially,the individualsthemselves or their properties (amwal pl. of mal). Peoples' properties and wealth are the concernof legaltransactions, bearingin mind variousrightsandobligationsarising out of these transactions.The underlying reason for this is simply that mal is naturally the subject matter of ownership; and more emphatically,the subject matter of numerouscivil transactionssuch as sale and purchase,rent and lease, partnership,bequest,gift, wazgf, successionand so on. Mal is, of course,one of the most necessary elements of livelihood from which a human being cannot be detached.

PHILOLOGICAL

MEANING

OF MAL

Mal in the Arabic language signifies whatever in effect a man may acquire and possess; whether that is corporeal ('ayn) or usufruct (manfa'ah);such as gold, silver, animal,plantand benefit gainedout of things such as the ridingof vehicles, the wearingof clothesand the residingin houses etc. On the other hand, whatever a man cannotpossess, cannotlinguisticallybe regardedas mal. For instance,birds in the sky, fish in the water,trees in the forest, and mines in the secretdepth of the earthare not linguisticallyconsideredmal.l Accordingto al-Qamusal-Mukit, mal means all things which are capable of being owned;2and accordingto Lisan al'Arab, mal is customarilykrlown as all things capable of being owned.3 The
* LL.B. (Hons.) and MCL, InternationalIslamic University Malaysia;LL.M., Harvard Law School. 1 Wahbahal-Zuhaili,I)r, Al-Fiqh al-Islami wa Adillatah (Damascus:Dar al-Fikr, 1985), vol. 4, p. 40; 'Abd al-Salam Dawud al-'Ibadi, Dr, Al-MilkEyyah fi al-Shari'ah al-Islamiyyah, Tabi'atuha wa Wazifat1uhawa Quyuduha ('Arnrnan:Maktabah al-Aqsa, 1974),p. 171. 2 Al-Qamus al-Muhil, vol. 4, p. 50. 3 Lisan al-'Arab, vol. 11, p. 632. ArabLaw Quarterly, [1999]361-368 (C)1999 Kluwer Law International. Printedin the Netherlands.

361

362

ARAB LAW QUARTERLY

Shari'ah has not imposed unnecessary limitation on the meaning of mal by defining it in a narrowperspeciive;ratherthe concept of mal is left wide on the basis of peoples' customsand usages. Thereforethe Arabsin whose languagethe Qur'anwas revealedunderstoodthe importanceof mal wheneverthey heard the tenn, in the sameway as they understoodthe termsheaven,earth,etc. That is why some of the philologists contend that mal is customarilywell known (al-mal ma'ruf).4 The termmal or its derivatives has been mentionedin the Qur'anin more than 90 verses and in the Sunnah of the Prophet (pbuh) in as many places as uncountable, and thus these two sources have left the understandingof the terrninology open accordingto the customsof the people.Therefore,wheneveran Arabhearsor readsthe Prophetichadith(Kullual-Muslim'ala al-Muslim haramun damaXuwa maluXuwa 'irdahu - Muslims' blood, property and dignity are protectedagainsteach other), he understandsthe meaningof the term mal in the sarne way as he understandsthe terms salat, siyamX hadjand zakat without referringto the specifictechnicalmeanings.5

JURISTIC

MEANING

OF MAL

After the emergenceof variousschools in Islamic law, the term mal was used to denote different technical meanings and jurists endeavouredto lay down its technicaldefinitionsaccordingto their own accounts.Their definitions,therefore, vary from each other accordingto the purportedtechnicalmeaningsadoptedin variousschools. In this regard,two definitionsare dominantlyimportant: one is the definitionof the Hanafi school and the other is of the majority(the schools other than the Hanafischool). The Hanafi definition The Hanafi jurists have laid down several definitionsof mal by using different wordsimplyingapproximately the samemeaningandunderstanding. The variance is not due to the differences of their understandirlg of the natureof mal; ratherit is due to their variousways of expressionand its subtle scopes in their treatmentof the samemeaning.Someof the prevalentdefinitionsaccorded by the Hanafijurists in their books are quotedhere as follows: (1) Mal is whathumaninstinctinclinesto, and whichis capableof being stored/ hoardedfor the time of necessity;6 (2) Existentto which humannatureinclines and which the rule of expenditure and its prohibition/restriction applies;7
See Al-Misbah al-Manir,vol. 2, p. 288. Muhammad Abu Zahrah, Al-Milkiyyah wa Nazariyyahal-'Aqd(Cairo: Dar al-Fikr, 1996), p. 44. 6 Ibn 'Abidin (Muhammad Amin), Hashiah Minhatal-Khaliq 'ala al-Bahral-Ra'iq, n.d., n.p., vol. 2, p. 57 and vol. 4, p. 105. 7 Ibid.,quoted from Al-Durar, vol. 5, pp. 5s51.
4 5

PROPERTY IN ISLAMIC

LEGAL THOUGHT

363

(3) Whichhas the statusof being stored for the purposeof beneficialuse during the time of necessity;8 (4) Which has been createdfor che goodness of human beings and in regardof which scarcityand stinginess apply.9 The Mayallatal-Ahkamal-'Adliyyah (known as Majallah/Mejelle) defines mal as a thing which is naturallydesired by man, and can be stored for the time of necessity. It includesmoveables(manqul) and imrnoveables (ghayrmanqul).l All these definitionsare not comprehensiveas they do not signify the natureof mal in the view of the Hanafi school. There are, for example, some properties (amwal)which, though not capable of being stored, remain beneficiallyuseful, such as vegetables and fruits; but are not included in the definitions of mal accordingto the Hanafischool. Similarly,thereare certainthings to which human instinct does not incline but rather distikes and avoids, such as some medicines, which are not coveredby the definitions. Some contemporary jurists have attempted to redefine mal in the light of the Hanafi perspective Some of them, for example, maintainiat mal is everything with materialvalue amongst people; while some others define it as whatever is capableof being under possession)protectionand customarilyrecognisedto have
beneficial use.ll

The author of Al-Hawi al-Qudsi's defirlitionseems to be accepted by other juristsas relativelymore comprehensiveand accurate,which is as follows: "mal is the non-human things, created for the interest of human beings, capable of possession and transactiontherein by free will''.l2 Accordingto the Hanafijuriststwo elementsarerequiredin orderto conferon a thing the status of mal: (1) The thing should be material that is susceptible of being possessed and protected.Therefore,if a thing does not comply with this requirement,it is excluded from the definition of mal. As a result, the abstract human attributes,such as knowledge) health) dignity, intelligence;all usufructs, debts, mererightssuch as the right to development) the rightof pre-emprion, the right to water, etc., are not consideredas mal. Similarly,those things upon which human control is impossible are also excluded from the definitionof mal, e.g. free air, heat of the sun and moonlightetc.l3 It is clear thatthe Hanafijunsts do not stipulatethatthe thing,in orderto be considered as mal) should acalally be owned) rather it is sufficient in their view, in contrastto the literalmeaningas discussedearlier,if the iing is capableof
'Abd al-SalamDawud al-'Ibadi,sapra, note 1, p. 173, quotingfrom Al-Talbih, vol. 2, p. 98. 9 Ibid., quotingfrom Al-Talbih, vol. 2 p. 230. 0 Tyser, C.R., The Meyelle (Eng. Trans.). (Lahere:Law PublishingCompany,1967),Article 126. 1l MuharrlmadYusuf Musa, Al-Amwal, n.p., n.d., p. 162; 'Ali al-Khafif,AhEam al-Mu'amalat alShar'iyyah (Dar al-Fikral-'Arabi),p. 25.
8 12 13

Muhammad Abu Zahrah,szxpra, note 'Abd al-SalamDawud al-CIbadi, op.cit.,

5,

p. p.

44-

174; Wahbahal-Zuhaili,op.cit.,

p.

40

41.

364

ARAB LAW QUARTERLY

being owned.The hunts in the desertand the birdsin the sky are, therefore, malaccording to them, on accountof their capability of beingowned. (2) The thing should be capableof beneficialuse accordingto the prevailing customs. Therefore,the things which are not beneficial,such as poisonous or harmfulfood or carrion;or capableof beneficialuse but not accordedby the customsof the people, such as a single wheatcereal,a dropof water,or a handfulof soil, arenot regarded as malbecausethey haveno benefitin these smallunits. It is importantto note that the beneficialuse should be judged in view of the Shari'ahand it should be accordedby persistentcustom in normal circumstances.The beneficial use in circumstancesof necessity, such as the consumpeonof carrionfor survivalin severehunger,therefore, is exceptedand would not confer on the carrionthe statusof mal.l4 DefiXiition of the majority (non-Hanafi schools) The definiiion accordedto mal by the majorityis more comprehensive than the HanafideEmition. HeTethe definitionsof the non-Hanafimajorityare discussed. Defanition of the Shafi'i school Al-Zarkshistates that, "mal is what gives benefit, i.e. preparedto give benefit", and he continuesto sayat mal can be materialobjectsor usufructs.The material objectsareof two kinds:inorganicsolidmaterials; andanimals.The solid materials are regarded as malin all situations.Amongstthe animalsone groupis such that it has no properphysicalscructureto be used for beneficialpurposesand therefore not regardedas mal; othersare createdwith submissivenaturesand are amenable to humarlbeings such as domesticammals,and other tamableanimals,which can be categorisedas mal.t5 Allama Suyuti refersto ImarnAl-Shafi'i as saying that, sCthe terminologymal shouldnot be construedexcept as to what has valuewith whichit is exchangeable; and the destructorof it would be made liable to pay compensation; and what the people would not usuallythrow awayor disown, such as money, arldthe likes''.l6 With regardto the considerable valueeffectingthe status of property(mal),Imam Al-Shafi'i has made two significant points. Firstly, whatever is evaluated as effectivelygiving rise to benefilt is regardedas financially valuableproperty,and in contrast,whateveris incapableof showing the effect of giving rise to benefit is excluded from the status of financiallyvaluable property.Secondly, finarscially valuablepropertyis one which apparently shows the price duringa high rate, and one which fails to show it is excludedfrom that status.l7
Ibid.,et. seq. Al-Zarkshi, Al-Manthur fi al-Qawa'idal-Sharsfyyah, n.p., n.d., p 222. Al-Suylln (Jalal al-Din Abd al-Rahrnan), Al-Ashbahwa l-Naza ir (Beirut:Dar al-Kutub al'Ilrniyyah, 1st edn, 1983),p. 327. 17 Ibid.
4 5

PROPERTY IN ISLAMIC

LEGAL THOUGSIT

365

Definitionof the Hanbalischool According to Al-Kharqi, malis something in whichiere existsa lawilly perrnissible benefitwiiout resuliingfrompressingneed or necessity.l8 Al-Buhuti,explaining ie abovedefiniiion, maintains dat the iings in whichthereis no benefitin essence,such as insects,or wheretherernightexist benefitbut it is legallyprohibited, such as wine, or there is a lawfullyperrnissible benefitbut only in ie sicuaton of pressingneed, such as keepinga dog, or in the situaiionof necessicy,such as ie consumpiion of a carcasswhen in direneed of survival,are excludedfromthe statusof mal.l9 Definitionof the Maliki school Accordingto the Malikijurist,Al-Shatibi)mal is the thing on which ownershipis conferred andthe ownerwhenhe assumesit excludesoffiersfromsterference.20 This definition affirrns thatmalis the subjectmatterof ownership. It also explainschatthe basisof property nghts is the relaiionship standing between*le thingandthe person.

ATTRIBUTES

OF MAL

In the light of the juristic deEmitionsof mal we may now determine certain characteristics which qualify things as mal: (1) In orderfor a thing to qualifyas mal it has to be, in the wordsof the Mejelle (Art. 126)) naturally desired by man. In other words, in modern terminology)it must have commercialvalue; (2) It must be capableof being owned and possessed; (3) It must be capableof being stored; (4) It must be beneficialin the eyes of the Shari'ah; (5) The ownershipof the thing must be assignableand transferable. If a certainthing attains the above attributesit may qualify as mal. Keeping in view the attributesof mal, there seems to exist some distinction between a thing (Shaiy pl. Ashya') and property (mal). Mahmassanimaintainsthat propertyin a legal sense differs from thiIlg in generalto the extent that all propertiesmust be things but not necessarilyall things are property.A thing implies whateverexists in reality,while propertymust have certainattributesdistinctfrom those of a thing in general.2lTherefore)the relationshipbetween propertyand thing is that the formeris specific while the latter is general.
Al-Kharqi,Matanal-Iqna>p. 71Al-Buhuti(MansurIbn Yunus), Kaskshaf al-Qana'Matanal-lqnav('Alamal-Kutub, 1983D, vol. 3p. 152. 20 Al-Shatibi(Abu Ishaq), Al-Muwafaqat fi Usul al-Shari'ah(Egypt:?datba'ah al-Rahmaniyyah, n.d.), vol. 2, p. 17. 21 Mahmassani (Sobhi Rajab),Al-Nazariyyahal-'Ammah Lil-Mujibatwavl-Wuqud (Beirut:Dar al'Ilm Li-l-Malayin,3rd edn, 1983), p. 8.
I8 19

366
USUFRUCTS

LAW QUARTERLY ARAB

(MANAFI4) AND RIGHTS (MAL) (HUQUQ) AS PROPERTY

propertronly in materialdings and (manafi pl. of manfa'ah) Usufructs have tangiblesubstanceor corpus. which property jurists) Hanaf1 to according pl. of haqq)are not therefore (huquq raffits hold of dominium.The non-Hansfi junsts) on the oder hand sort a rather but e mean they ing by dat usufrllcts and rights are also propeny) because with line in is view This use and de benefitof it md not de thing itseIf. beneficial wide legal recognition. decustomaryusage of people and thereforeaccorded whichis a verbalnoun(masdar) of manfa'ah is the pluralfol-nz The wordmanafE' or the which literallymeans benefitand adtrantage from de root nafaX emanating goal.22 beneElcial a or reading used in achievingsuch benefitand advantage mea}s benefitis taken of a whatever general m includes f man de term Accordinglyy form of substance) - dat thing being either in physicaIstructure,or in the thing of a house, and example,e milkaIldcalfof a cow)the fmits of for suchlike. imply only t;hebenefits The majorityof juristshave used the terrnmansfivtO such as thingsby way of theirutilisationwhichareostensible, out of material taken of an work a clo and *xe residingin a house, ridlng in a car5the wearing of the cow) as the milk of a employee.The benefits in ie :irm of substance,such are like, house, arldsuch fruitsof a tree, as well as the rentalproceedsof a rented or regardedas manafi'.These are rathercalledproduce juridically not, therefore) proceedsof materlalthings*23 on the offierhmd, meanssomeding that can pl. of haqq)) The termrights(huqaq people may have by law< be justly claimed, or the interests md claims at law recognises for an the what is According to Dr Wahbah al-Zuhaili)haqq othersto perform bind or autority individualto enablehim to exercisea certain relatesto sometimes haqq that somethingin relationto him. He furthermaintains easement of right ic and mat e<g.the right of ownership(haqqaI-milkiyyah)) passage) to rights to respect wid in adjacentlmd panicularly (haqqdI-tRttfaq) denote may it rather mal, to Sometimesit may not relate waterand developmerlt. ie e.g. haqqX such possesses some legal authorityor claim due to someone who huquq The incapacity.24 of rights of custody md guardimship upon a person or by him, areof two types:propertyrightsandmererights derefore as envisaged and term) general a is non-propertyrights. 'Ali al-Khafif contends dat haqq and applies to all interests accordinglyit comprehendsall usufructs (manafD) areentitledby law)anddus theyarede ownersof to whichindividuals (maslahah) but not all rights are such interests. Accordingto him) all usufructs are rights is speciElc arldmanfavah usufructsper se.25In other words)haqqis general(;am) indicatedabove)the Hanafi school recognises As
a tree5 ie rents

2 P. 328 al-MWr YO1. 22AZ-MIaX

waz-kttssN in MajZkztal-Qanun Al-Manafis, ) sAlial-Khafi; sI-fibmiaop.cit. p. 42. 24 See Al-Fxqh 2s See Al-Mansfi, ap.cit.> p. 98.

(19SO)vol.

20

part 34,

p. 27.

PROPERTY IN ISLAMIC

LEGAL THOUGHT

367

(khass). It follows, therefore,that they sharewith each other the scope and extent of manfa'ah, that is to say, they apply equallyto those things which areutilised for benefits, such as residingin a house and riding in a car;and vary from each other when haqq furtherapplies to the interests not resultingfrom the beneficialuse of things, for example, the right of pre-emption, the right of option, the right of guardianshipand the right of custody etc.26The haqq has, however, a specific implicationin contrastto its generalityas indicatedabove. Some juristshave used it as a synonymof manfa'ah. Nevertheless, there still exists a distinctionbetween them. When we use the termhaqq attentionis madeto the personwho is entitledto it by law, while in the case of manfa'ah attentionis paid to the subjectmatterfrom which a person receives benefit. Riding in a car is de benefit (manfa'ah)which attachesto the car, while the capabilityand authorityof riding in a car is a haqq (right) which is conferredon the person who is entitled to it. It follows that the meaningof the rightto beneficialuse is differentfrom the meaningof benefititself, in the sense that the former is the attributeof the person entitled to it, and the latter is the attributeof the subject matter from which such benefit (manfa'ah)
emanates.27

Accordingto the Hanafi school, manafi'(usufructs)and huquq (rights whether propertyrightsor mere rights) are not property,because,these by their natureare not capableof being possessedand, even though they come into existencefor some time they do not have subsistence and continuity; rather they cease to exist gradually following their gradual consumption and enjoyment. The majority jurists(non-Hanafi)hold the view that manafi'and huquq qualifyas property(mal) becausethey are regardedas capableof being possessedby virtue of the capability of their sourcesand bases to be possessed even though not by virtue of their own nature. Furthermore,these manafi'arld huquqare the desired outcome of the materialthings, and in the absenceof such outcome the materialthings would fall short of human demandand inclination. This conflicting interpretationbetween the Hanafi and non-Hanafilmajority jurists culminates in some practical problems, particularlyon the issues of usurpation, lease and inheritance. If someone usurps certain property and thereafterenjoys some benefit out of it for a certain period and then returns it to its true owner, he is obliged, according to non-HanaEl majority jurists, tO compensatefor the benefits so enjoyed.However, accordingto the Hanafi school, the usurper is not liable to pay compensationfor the benefit enjoyed out of the usurpedproperty,rathermere restitutionof the propertyto its true owner would sufElce.Nevertheless, some Hanafi jurists have made certain exceptions to the above general rule. They maintainthat if the usurped propertyis a trust (waqJ) property or if it belongs to an orphan or is prepared for certain further development or utilisation purposes or prepared for lease (e.g. hotels and restaurantsetc.), then the usurper is liable to pay compensationfor the benefits
26 27

Ibid Ibid, at p. 99.

368

LAW QUARTERLY ARAB

is based on istihsan addition to restitution of the property. This exception in is, thus, on the groundof equity to avoid the rigorof law) and preference (juristic is, it is view This due to greatneed for the protectionof such properties. justified against protection somehowweak.In fact, all propertiesare entitledto submitted, compensationfor therefore and non-owners, interferenceand usurpationof the of the benefitsshouldbe the law in all usurpedproperties, enjoyment unauthorised thus the exceptionis unnecessary.28 and areof the opinionthat by With regardto the contractof lease, the Hanafijurists dissolve, while *le nondeath of the lessee the contractwould prematurely the the fixed period majority's view is that it would continue until HanaEl results from opinion of the death of the lessee. This difference notwithstanding jurists Hanafi The contract. of a lease of conceptionin the formation difference the their to according (manafi') that lease takes place in relationto benefits perceive with gradually object out of the leased accrual,i.e. the lessee owns beneElts gradual after lease the of out passageof time. A lessee cannotown the berlefitsaccrued the deathas it terminatesall his mundanelegal claims. his heirs of the as the benefitsare not mal, in their opinion,the legal Furthermore, does not contract lessee cannot inherit them. As a result, the lease deceased hand, other the on afterthe deathof the lessee. The non-Hanafijurists, continue whole a as be present the view that the benefits (manafi')are consideredto hold it at once at the owns lessee the and contract lease the formationof the during manafi'are by virtue of the contractlegally concluded.Furthermore, beginning therefore,be inherited in their view, consideredas property(mal).They can, too, salecontractsdoes not other like contract Thus, the lease any otherproperties. like on the deathof the lessee.29 dissolve to note that the rights,such as rights it is important On the issue of inheritance, investigationof the inthe sale contractsin respect of the options of stipulation, jurists, inheritable, non-Hanafi to defectivecommodities, etc. are, according by the deathof the devolved be they regardtheseas propertywhichshould because these are not jurists, Hanafi to ownerupon his legal heirs. However, according as they are not property.30 inheritable

28 29 30

Wahbah, Zuhaili, op cit., p. 43. Ibid,.at pp. 43 and 278. Ibid, at p. 43.