1. islamic principles and land Opportunities for Engagement
2. 2 / Islamic Principles and Land Islamic Principles and Land: Opportunities for Engagement Copyright © United Nations Human Settlements Programme (UN-HABITAT), 2011 United Nations Human Settlements Programme (UN-HABITAT) P.O. Box 30030, Nairobi 00100, Kenya Tel: +254 20 762 3120 Fax: +254 20 762 3477 www.unhabitat.org Disclaimer The designations employed and the presentation of the material in this publication do not imply the expression of any opinion whatsoever on the part of the Secretariat of the United Nations concerning the legal status of any country, territory, city or area, or of its authorities, or concerning delimitation of its frontiers or boundaries, or regarding its economic system or degree of development. The analysis, conclusions and recommendations of this publication do not necessarily reflect the views of the United Nations Human Settlements Programme or its Governing Council. Cover photos © UN-HABITAT/ Britta Peters Acknowledgements Principal authors: Siraj Sait, Britta Peters Contributors: Åsa Jonsson, Solomon Haile Editing and layout: Robert Wagner, Britta Peters Sponsors: Norwegian Government, Swedish International Development Cooperation Printer: Publishing Services Section, Nairobi, ISO 14001:2004 - certified.
3. Opportunities for Engagement /3content1. Background 42. Why Islamic principles are relevant to land 63. Islamic law as it applies to land 74. Key elements of Islamic principles on land 85. How Islamic principles can be applied to land 146. Conclusion 217. Glossary 22
4. 4 / Islamic Principles and Land 01 background Pages from the Holy Qur’an © UN-HABITAT UN-HABITAT, as the global UN agency The Global Land Tool Network for sustainable human settlements, (GLTN), with its secretariat at the Land engages with different regions and Tenure and Property Administration diverse legal systems. During its work Section, Shelter Branch, UN-HABITAT in many Muslim countries from is a multi-sector and multi-stakeholder Afghanistan to Indonesia, and Somalia partnership focused on establishing to Iraq, UN-HABITAT has been a continuum of land rights and the increasingly aware of the significance creation of innovative, pro-poor, scalable of the distinctive and complex Islamic and gender-sensitive land management land tenure concepts and land rights. and land tenure tools (www.gltn.net).
5. Opportunities for Engagement /5It achieves these overall goals through land, as highlighted in the above twoa range of activities such as promoting publications. It is intended for landresearch and disseminating materials professionals, policy makers, and anyon land, supporting documentation other stakeholder working in the landof tools and best practices, developing sector, who are looking for a shortinnovative methodologies and overview of these aspects of land inapproaches, organizing workshops Muslim societies. It is intended toand consultations, facilitating a provide a wider understanding of howwide range of stakeholder inputs to integrate Islamic dimensions intoand strengthening capacity through land programmes and projects.training. GLTN recognizes the demandfor targeted tools, including culturallyor religiously formatted tools, as thereare many positions and approaches toconceptualizing and delivering securetenure and access to land.This booklet arises from GLTN’swork on Islamic dimensions of land.This work began in 2004 with thecommissioning of research leading toSait and Lim’s Land, Law and Islam:Property and Human Rights in theMuslim World (London: Zed Press/UN-HABITAT, 2006) which wasendorsed by leading non-Muslim andMuslim stakeholders, including theseat of Islamic scholarship, the Al-Azhar in Egypt. Based on this researchpublication, a training course on IslamicLand, Property and Housing Rights in theMuslim World, was produced in 2010by GLTN in cooperation with theUniversity of East London.This booklet provides a shortsummary of the key principles andelements of Islamic dimensions of
6. 6 / Islamic Principles and Land 02 Why Islamic principles are relevant to land Over 20 percent of the world’s Muslim society as a whole, they can be population is influenced to varying influential in promoting land access and degrees by Islamic principles and re-distribution for marginalized groups. practice, either through official systems There are also distinctive Islamic or informal practices. Among other approaches to land administration, areas, Islamic principles are impacting urban planning, and land-related on land and property. But despite the aspects of micro-finance. Further, wide geographical spread and relevance there are a number of instances where of such principles, they are often not Islamic principles and practices relevant sufficiently documented and aligned to land are similar to widely accepted with informal and statutory systems. universal approaches and can therefore This impacts land management systems be used to enhance tenure security, land as well as security of tenure across the use planning and land management. Muslim world. Understandably, traditional Islamic practices have not foreseen the extent Land systems and tenure approaches or nature of today’s intractable land around the globe rarely acknowledge issues and challenges and purely that several Islamic principles potentially Islamic solutions may not always offer opportunities for enhancing provide a complete and contemporary property rights. Just as with customary model. But there are aspects of Islamic and informal land rights, there is a need principles, mechanisms and processes to better understand these approaches that may provide legitimacy for certain in order to get a more complete picture land interventions as well as durable on how land is managed in different solutions. contexts. Islamic principles and practices influence many aspects of everyday life in Muslim society. This includes the perception of property and land rights. Since Islamic principles are based on an obligation towards God and the
7. Opportunities for Engagement /703Islamic law as it applies to landThere is no single unified and systematic respective jurisprudential schools, havefield of Islamic land law. However, those established different methods in, forworking with Muslim communities instance, the allocation of inheritancerecognize key features drawn from shares. This legal pluralism, particularlyvarious Islamic fields relating to land. the intersection of Islamic, customaryProtection of property rights in general and statutory norms, is a feature ofis recognized in Islamic law (Shari’a) as Muslim countries.a priority and state policy must operateto promote it. Islamic law is thereforean important factor influencing landtenure in Muslim societies. Whetheror not their states ‘officially’ implementIslamic principles, land tenure regimesand concepts are generally constructedand realized with reference to theShari’a.Muslim countries across the regionsshare common values and morality butalso demonstrate diversity in applyingIslamic law through different methods,mechanisms and legal practices. Itis, therefore, important to note thatIslamic principles relevant to land arenot necessarily the same throughoutthe Muslim world, and may vary evenwithin countries.In contexts where the holy Qur’an, oneof the primary sources of Islamic law,does not provide clear instructions,Shi’a and Sunni Muslims, and their © UN-HABITAT
8. 8 / Islamic Principles and Land 04 Key elements of Islamic principles on land Islamic principles offer a range of rights, ‘use’ and ‘possess’ land. In principle, values, practices and methods which the rights to land are linked to land use are relevant to land and which are and the person who uses the land has still of importance in modern Muslim priority over another who has failed to societies. This section introduces some use it. Land that is not being used can key elements of these principles. For consequently not be owned. Following any application of these principles the same logic, only productive land in land projects and programmes it should create wealth. will, however, be important to first identify the Islamic principles utilized in local or country context and to localize any approach building on these In Al-Madinah, Saudi Arabia principles. As with any land activity the concept of linking land development and implementation there rights to land use was important would also be a need for consultations in legitimizing large scale between representative groups of modern ‘squatting’. Occupiers land professionals, civil society of unused and unclaimed land Islamic scholars, policy makers and built fences and/or shelters on it development partners, amongst others. and viewed this as part of their Land and property rights legal and social tradition. This ‘squatting’ led, after appropriate There are references to land in the investigations by local courts Qur’an. The Qu’ran, for instance, into whether the land was in stresses the importance to respect fact unused, to registration of private property rights, but makes clear the land in the names of the that the earth belongs to God and those occupiers. who enjoy the benefits are accountable to God. There is some theoretical or philosophical debate as to whether land itself can be ‘owned’, but little dispute that there are Islamic rights to
9. Opportunities for Engagement /9Contemporary land tenure regimes in • endowed land (waqf) which isthe Muslim world are often a complex, property permanently settled fordynamic and overlapping net of Islamic the use of beneficiaries, either forprinciples, state and international legal specific purposes or devoted toframeworks, customary norms and general welfare; and,informal legal rules. However, traditional • unused or dead land (mawat) thatprinciples have remained important in can be converted into private landmany countries, despite variations in through reclamation.their socio-cultural particularities andhistorical development of their land There are other classifications of landtenure practices. The term ‘Islamic land such as unused state land liable to betenure’ recognizes that these tenure confiscated (mehlul) as well as commonsystems ultimately, if indirectly, have land (metruke). Communal landreligious foundations. Nigeria, for (musha) and other forms of collectiveinstance, is a country with such a ‘legal ownership are also recognized.pluralism’ where secular laws compete Unlike freehold under the Westernwith customary (uncodified) and concept, land in full ownership (mulk)Islamic laws (codified). faces one barrier in regard to transactionTenure types through sale: the pre-emption (shuf ’a) gives co-inheritors or neighbors a privilegedFour main types of land tenure emerge option to purchase the land when it isfrom Islamic legal texts and were for sale. This process can keep strangersrecognized in the Ottoman Code of to communities on the outside while1858, a codification of Islamic land it can limit or prevent certain kindsprinciples: of economic development that may ensue from external investment. Many• land in full ownership (mulk) which customary land systems in Africa and is sometimes translated as full elsewhere used to follow, and some still private ownership or in Western apply, such practices. terminology as freehold;• state-owned land (miri) which the state owns as a representative of God and in the trust of the community of Muslims and under which a range of access and usufruct rights for individuals can be created;
10. 10 / Islamic Principles and Land access to land aspects of Islamic principles for specific population groups One of key religious obligations for Muslims is compulsory charity (zakat) There are elements of Islamic principles which recognizes landless people as a pertaining to specific groups of the primary beneficiary group. As described population that are important to above, all land belongs to God and acknowledge, since they are not only may only be used and cultivated by sacred rights but obligations owed humans. In this sense, land ownership to God aiming to achieve equitable must be just and in line with the overall distribution of wealth and rights for all. social responsibility of Muslims. As a result Islamic principles include land Women rights for a broad range of potentially Muslim women, like women in non- marginalized groups, including women, Muslim societies, face significant children, people who are landless and obstacles in accessing land rights. minorities. However, Islamic law provides a range Land ownership is fragmented in of rights to property to Muslim women, many Muslim countries, often with for instance the right to acquire, hold, one individual holding small parcels of use, administer, inherit and sell property land in multiple tenures. The reasons including land. A Muslim woman does for this are twofold: firstly, land is not loose her property rights when she mostly accessed through complex marries and may purchase property combinations of interrelated tenure using her earnings or the gifts she may relationships due to the parallel receive from her or her husband’s family existence of Islamic principles, or on what she may enjoy as beneficiary colonial legacies, custom, informal and of an endowment. statutory norms. And secondly, Islamic Even though the Qur’an states that inheritance rules allocate fixed specified women and men are each others shares to a number of individuals guardians and mutual protectors, it is within the deceased’s extended family. often interpreted conservatively and This is the case in Indonesia, where land used to justify male superiority. The fragmentation due to fixed inheritance resistance to gender equality is further rules often leads to co-ownership and based on the fear that equality would co-tenancy, though shares are fixed and undermine family and social dynamics. in individual names.
11. Opportunities for Engagement /11 Muslim women do access the legal Under Indonesian law both system, whether customary, Islamic women and men have equal (Shari’a) or state courts. Family courts rights to acquire and own are being promoted in several Muslim land. The law also states that countries, including Morocco and all property jointly acquired in Egypt, which are designed to be less the course of a marriage should legalistic and to encourage a mediation be registered in both husbands’ approach. and wives’ names and calls for registration of all land. But In Morocco a new Moudawana in practice, only 25% of land – Moroccan Code of Personal parcels have been registered, and Status – was introduced in only between 20-30% of the 2004. Its objective was to free registered land is registered in the women from the injustices they names of women, 65% or more endure, to protect children’s in the names of men and only rights, and to safeguard men’s 4-5% in multiple names. The dignity within the spirit of most common reasons for limited Islam. The reforms in the joint titling are lack of awareness Moudawana offer substantial of the possibility of joint names changes to the formal status and the customary practice to of women and are to a degree list the husband as head of the supportive of the nuclear family. married family. It envisages joint decision making betweenAll Muslim governments have not husband and wife as well ascommitted themselves explicitly to joint ownership of propertygender equality on all fronts. However, within marriage whileon the ground, there are major changes the previous version of thein the way women are able to assert Moudawana had still beentheir rights, autonomy and freedom identifying female citizens as- without necessarily undermining minors unable to enter intoIslamic or socio-cultural values. marriage contracts on their ownWomen in general have restricted access and needing to be representedto courts or legal assistance. However, by a guardian or tutor until theif they have the opportunity, many husband took over.
12. 12 / Islamic Principles and Land Children and youth Minorities Children’s and youth’s access to land One of the general concerns about and housing is often ignored in traditional legal systems, such as Islamic Muslim countries as in others on the law, which are based on religious assumption that the family will provide principles, is the rights of minorities. for their needs and that property rights Minority status can add further risk are almost exclusively an adult concern. to already marginalized groups such as However, conflict, displacement and women, children and refugees. Forced HIV/Aids often result in the loss of evictions are, for instance, more likely family protection and consequently to target minorities who are often rights to land and property. voiceless. The Qur’an recognizes child and youth In theory, the Qur’an guarantees non- rights in several dimensions and can, Muslim minorities who live in an therewith, strengthen the position of Islamic State inviolable protection of vulnerable children. It assumes divine their life, property and honor in exactly responsibility for the creation of the same manner as Muslims. However, every child, recognizes the life of the in practice non-Muslims and Muslim unborn and prohibits parents to kill minorities do not always have access to their children. It emphasizes the equal full land rights and face discrimination. preference of both sexes by criminalizing A clearer reading of the Qur’an and the practice of female infanticide. the Islamic law could pave the way for Islamic understanding of child rights, enhanced property rights for minorities. further, contains several strengths such as the rights of orphans. Most Muslim countries have ratified the 1989 Convention on the Rights of the Child and support its child-centered guarantees and rights.
13. Opportunities for Engagement /13Migrants and displaced persons for Muslim States due to its exclusion of Palestinian refugees. However, theMigrants and displaced persons are Organization of Islamic Conferenceamong those most defenseless in regard (OIC) emphasizes that ‘Islam laidto land grabbing, forced evictions the foundations for the institution ofor exclusion from access to land and asylum in its public law through thehousing. Refugees who are considered holy Qur’an and the Tradition’ and thatas illegal immigrants have only limited ‘respect for migrants and those seekingrights even though some may have lived refuge has been a permanent feature offor decades in refugee camps within the Islamic faith.’a certain country. Equitable access toland and housing and protection of Internally displaced persons, notproperty rights would, however, be addressed in the 1951 Conventioncrucial for their search for permanent on the Status of Refugees, are mostsolutions such as voluntary return to at risk of losing their land rights.the home country, integration in the However, Islamic law, if interpretedhost country or relocation to a third and implemented according to itscountry. principle of equity, has the potential of strengthening land rights for internallyThe 1951 Convention on the Status displaced persons and other vulnerableof Refugees, which has over 150 State sections of society in the same way as forratifications, has been controversial refugees and migrants.© UN-HABITAT
14. 14 / Islamic Principles and Land 05 How Islamic principles can be applied to land The elements inherent in Islamic in Islamic literature. The concepts of principles which are relevant to land justice (adl) and consultation (shura), can have several practical implications. embedded in Islamic consciousness and Islamic legal practice with its emphasis administrative practice over centuries, upon partnership and community are highly influential. welfare has, for instance, the ability to respond creatively to the needs of the Under Islamic theory, the role of urban poor. Similarly, the pro-poor the State is to supervise land, which approach and the egalitarian principles ultimately belongs to God, for the that are integral to an Islamic way benefit of the community. The State is of life may legitimize and support mandated to administer land, efficiently modern land readjustment and slum- and fairly, in accordance with God’s upgrading strategies. This is not to say laws and ethical and moral principles. that there should be a preference for In reality, there exists no ideal Islamic religious discourse over universal or State. The general trend is that Muslim secular land approaches, but rather to States selectively adopt Islamic principles suggest a pragmatic strategy/approach according to their interpretation. But at where Islamic land principles may a policy level, a State following Islamic complement, and offer authentic land principles has not only the authority solutions in some contexts. but also the obligation to orientate its land policy towards the benefit of the Land management community. The problems many Muslim countries One of the biggest challenges for land face in land administration are not administration is the development of exceptional to the Muslim world appropriate land information systems or different from other regions but which can provide the necessary often arise out of misuse of limited information with regard to land rights, resources, inefficient structures and use and value. Land information system a democratic deficit. Accountability, is not an exclusively Western concept particularly against misuse of power but an integrated part of many Muslim and corruption, is repeatedly stressed societies. Especially in the Ottoman
15. Opportunities for Engagement /15period, land registration systems entitled to inherit, given fixed sharesflourished and contained, for revenue and cannot be disinherited, except inpurposes and resolving land disputes, extreme circumstances such as causingall available land-related information. the death of the deceased. In a simpleToday several countries, like Jordan, case an estate will be shared betweenAlgeria and Morocco, are working the deceased’s parents, husband oron establishment and extension of wife, and children. A surviving parentland information systems, often with will receive one-sixth of the estate, theinternational support. Several other surviving spouse one-eight (a wife)countries such as Yemen have received or one-quarter (a husband), with theextensive support for land titling balance shared between the children,processes. The successes of these projects with sons receiving twice the share ofvary and Muslim countries have diverse daughters.attitudes towards cadastre or titling butthere is nothing in Islam restraining Islamic inheritance principles, hence,these attempts. do not give the same freedom to decide where property will devolve upon deathinheritance rights as some other systems. However, it is possible for individuals to pass on upInheritance is one of the most detailed to one third of land and other propertyfields of Islamic law, providing for the through a will (wasiya) and therewithcompulsory division of an individual’s play an important role in providingproperty upon death. The inheritance for vulnerable children not beingrules are derived from the Qur’an.Generally, not all land is subjectto Islamic inheritance rules. While One example of the importantland held in full ownership (mulk) is role communal or tribal landinherited according to Islamic law, previously played was mushaaccess and usufruct rights to state land (Arabic for shared) land, found(miri) are traditionally inherited outside mostly in rural agriculturalIslamic inheritance rules. contexts, notably in Palestine. The musha system involved aQur’anic heirs or sharers (mother, periodic reallocation of shares offather, husband, widow, daughter, son,full/half brother or sister, paternal/ arable land amongst members ofmaternal grandfather and other relatives a village who held the land infrom the father’s side) are, when common.
16. 16 / Islamic Principles and Land among the Qur’anic heirs like orphaned endowment (waqf) grandchildren, adopted children and children raised within families without Islamic endowment (waqf) is a highly sharing a blood relationship with the significant legal mechanism and a key family members. Islamic institution. Under the waqf an owner permanently settles property, its Despite the fact that women often usufruct or income, to the use of the receive lesser shares than male relatives general welfare or for the benefits of in a similar position, inheritance is an certain groups or even family members. important source of access to land for women, who have smaller but specific Over time the waqf has involved the rights to fixed shares under the Islamic contributions of hundreds of rulers, inheritance rules. thousands of families and millions of ordinary citizens and once amounted to Islamic inheritance law may result one third of the Islamic Ottoman Empire. in uneconomical land subdivisions. Several factors, both economic and Due to excessive fragmentations that political, led over the last century to the compliance to inheritance practices decline of the waqf. Modern states, such entails, land holdings of individuals as Egypt, abolished or severely limited or families can become too tiny to the waqf in the name of land reforms, allow profitable land based economic particularly the family endowment. engagement and adequately support Elsewhere, as in India, the waqf was gainful livelihoods. There is no nationalized, with the land brought under minimum threshold below which rights the control of specific ministries or boards. or the land itself may not be sub-divided and this leads to uneconomic holdings However, there is growing contemporary both in physical as well as legal sense. interest in the revival of existing Islamic endowments and new endowments Such an undesirable consequence of adapted to modern management and inheritance is minimized where local regulatory frameworks. There is support customs and practices allow land among Islamic communities for the idea readjustment or group or communal of waqf at local, national and international ownership. levels since it has the potential to enhance security of tenure for the urban poor. New waqf could, for instance, be created to help in land redistribution, strengthening civil society and supporting effective housing microfinance.
17. Opportunities for Engagement /17 In Malaysia waqf plays an important social and economic role. However, thousands of acres of waqf land are currently vacant or underutilized, primarily because they are unregulated or detached from the reality of market forces. But there are also several cases of good practice where waqf land is leased at market price to investors and the income is used to finance access to land and development of urban poor communities. Despite relative advances in the Malaysian land administration system to engage with waqf properties, waqf needs more attention and integration into the system, particularly in terms of land information. A full survey is a daunting task given the scale of the endeavour. There are also issues like the recognition, measurement and valuation of waqf assets. The limited monitoring and control, in addition to an absence of proper accounting standards, is being addressed by the State Islamic Religious Council to improve performance of waqf. An accountability and responsibility matrix is being proposed to ensure proper systems are in place.dispute resolution The Muslim judge (qadi) balances the rights and duties owed to God withThere is a great variety of legal institutions the rights of individuals. Often theas well as individuals implementing qadi has to deal with non-Islamic lawIslamic law: Muslim judges (qadi), or a combination of Islamic and non-administrative offices such as an Islamic norms. It cannot be assumedombudsman (muhtasib) and informal that a judge in an Islamic legal systemlegal authorities such as the mufti will only refer to Islamic legal principles,providing advisory opinions (fatawa, particularly on matters such as a landsingular fatwa). Their roles often contract, since laws relating to socialoverlap sometimes leading to tensions. relations, such as property relationships,Most Muslim countries with their legal have both religious legitimation andpluralism have modern hybrid dispute secular aspects.resolution mechanisms but Islamicprinciples and methodologies are still The idea of an ombudsman, with broadoften influential. oversight and a defined mandate, which has worked in many modern contexts,
18. 18 / Islamic Principles and Land has its roots in the Islamic framework. These traditional ways of managing, Traditionally, the Islamic ombudsman reducing and resolving conflicts (muhtasib) was in charge of promoting remain important. For example, within both a just society and an efficient contemporary local development market economy and functioned like projects in Lebanon, mediation (wasta) a market inspector, chief public health is observed as a continuing practice officer, receiver of complaints and land of social exchange and face-to-face use enforcer. However, the institution contacts in dispute resolution. of an ombudsman has declined over the last centuries but could be made islamic microfinance effective again in contemporary Muslim Islamic financing principles emerge societies. from a broader economic ideology and Islamic legal opinions (fatawa) distinctive values that are based on consist of a formal advice or response achieving a just and equitable society. to a question asked by an ordinary The Qur’an welcomes good trading person and issued by someone who is practices but is also conscious of people considered knowledgeable on a certain who are unable to trade or engage point of Islamic law. Even a state can in commercial activities and praises seek religious advice on or endorsement charitable acts towards the poor. Quest of a controversial position from a well- for possession and profit is, in contrast, regarded authority. only allowed as a means for providing livelihood and not as a goal in itself. In the past, disagreements and disputes were either settled through the Islamic microfinance is generally community or through formal legal understood as lending by Micro Finance procedures; lawyers were not required Institutions which is in compliance for this purpose. Concepts of mediation with Islamic law and Islamic economic or conciliation are found in the Qur’an principles, particularly the prohibition and include conciliation (sulah), where of interest (riba). Since microfinance, the believers are called upon to settle including land and housing micro- their disputes outside court and in credit, is a growing industry worldwide, mutual agreement, mediation (wasta), Islamic microfinance is also expanding. when compromise is not possible, as The traditional banking sector has well as the more formal arbitration been designed to meet the needs of (tahkim). middle- and upper-income clients and is therefore not accessible, appropriate
19. Opportunities for Engagement /19or affordable for the majority of the finances to access land for those sectionsurban poor. Microfinance institutions, of society, particularly women, whoin contrast, provide financial services are traditionally excluded from credit.including credit, savings, cash transfers Evidence also shows that when lendingand insurance to individuals excluded to women, the impact can lead notfrom or ignored by the conventional only to improvements in their and theirinstitutions. One well-known and very families’ economic status but also thesuccessful example is the Grameen Bank wider empowerment of women.in Bangladesh, established in 1976 toprovide small collateral-free loans tothe rural poor for productive enterprise Launched in 1997, Hodeidahpurposes. is currently the third largest microfinance programme in A 2004 report on microfinance Yemen. It serves very poor in the Arab world finds that clients along the Red Sea the region has seen a significant coast by providing credits for improvement in terms of entrepreneurial activities using outreach to women borrowers. a two-stage purchase and resale Up from approximately 36 mechanism, with a fixed service per cent of borrowers in 1997, charge and repayment schedule women currently make up 60 determined in advance. About per cent of all clients in the 80% of the clients are women region. Grameen in Bangladesh, who participate in group Micro Fund for Women, in lending with an outstanding Jordan and Hodeidah are few average loan balance of 25US$. success stories of innovative Hodeidah reached a total of schemes run by women for 3,900 clients in March 2008 women – though not always and is based on Islamic financial based on Islamic principles. values, which expands its potential clientele, because many Yemenis feel reluctant to acceptIslamic microfinance, which is normal loans due to religiousimplemented in compliance with reasons.Islamic law and Islamic economicprinciples, can provide access to
20. 20 / Islamic Principles and Land slum upgrading overcrowded inner-city slums that tend to fall outside the net of the general finance Muslim cities generally face similar industry. Effective housing microfinance urbanization issues as other cities programmes which are following Islamic including concentrations of informal principles and ethics could, for instance, settlements. Slum upgrading programmes facilitate the purchase, construction and are underway in several Muslim countries. improvement of homes, the installment The pro-poor and participatory of basic services or the funding of land- approaches of Islamic principles as well titling processes. as innovative Islamic finance products could stimulate slum-upgrading The Slum Upgrading Facility processes. Such processes would also (SUF) at UN-HABITAT has benefit from Islamic principles support pilot projects in Indonesia and for the elements of land sharing, Tanzania (where there are readjustment, regularization, simplified Muslim majorities) as well as planning and improved taxation. Islam Ghana and Sri Lanka (with also recognizes collective rights which Muslim minorities). SUF offer flexible arrangements. works with local actors to In particular, the rights of landless make slum upgrading projects poor, slum-dwellers and squatters could “bankable” – that is, attractive be addressed through redistribution to retail banks, property or revival of mawat (dead) land or developers, housing finance optimizing Islamic endowment (waqf) institutions, service providers, land. In the Islamic welfare State, the micro-finance institutions, public treasury (bait-ul-maal) has a and utility companies. A specific mandate for poverty alleviation, women-led initiative in redistribution and support of the Ghana, for instance, has been landless and is expected to fund access supported in negotiating with to land for the landless poor. the Metropolitan Assembly to Islamic finance, with its prohibition manage the construction of new on usury (interest) and its pro-poor market facilities, that the women emphasis, could benefit the poorest would finance through a bank of the urban poor, including squatters loan, and also be exempted from on remote or unutilized land and paying standard taxes and fees those living in rental arrangements in during a period to be negotiated.
21. Opportunities for Engagement /2106conclusionThis booklet identifies some of the key them compatible with local practicesIslamic principles, values and practices and interpretations of the Qur’an,influential in supporting wider access to other sources of Islamic law and alsoland and security of tenure. Though these statutory systems. The extent to whichconcepts are rooted in individual faith, Islamic principles need to be applied tothe reasons for considering them are a particular setting differs between andpragmatic. There are numerous useful among contexts. Islamic best practicesprinciples which could be harnessed to with respect to land may well providerealize the universal and Islamic goals large or small components of successfulof fair, equitable and sustainable land land policies in the Muslim world.rights. Like customary norms, theseprinciples have both the legitimacy The Global Land Tool Networkand ownership of indigenous principles (GLTN) has initiated the Islamicand are at the same time evolving and Mechanism as a potential value-adaptable to modern challenges. The addition approach to land strategies ingap between Islamic theory and practice the Muslim World, but the area is underis being addressed by Muslims and non- researched and existing best practicesMuslims the world over. are not fully documented. Therefore, GLTN welcomes ideas, experiences andThe purpose of understanding and inputs into this promising area of thedisseminating knowledge about Islamic global land agenda.land systems is not to promote Islamiclaw. Rather, it is to sensitize those whowork in Muslim countries on the rolethat some of the Islamic land andproperty principles and practices play inimproving access to secure land tenure.It goes without saying that issues raisedin this publication and good practicesrecognized need to be cultivated/promoted with a view to making
22. 22 / Islamic Principles and Land 07 glossary term meaning Adl Justice, one of the fundamental concepts in the Qur’an Al-harym Protected zone for environmental protection Amanah Trust, such as land held in trust by humans on behalf of God Awqaf Plural of waqf, Islamic endowment Bait-ul-mal State treasury for welfare, also a mechanism for managing charitable funds Fatwa Formal advice from a competent authority (mufti) on a point of Islamic law or dogma, given in response to a question (plural, fatawa) Hima Special reserves, for example, those established by the State for use as conservation zones Hisbah Islamic institution or ombudsman for enforcement of public interests Iqta Grants of land by the State, for example for land reclamation or development Mawat Dead or empty land, which can be reclaimed or revived Mehlul Land left uncultivated Metruke Public land for general use such as markets, parks and places to pray Miri State land Mufti Theologian who is competent to issue an advisory Islamic legal opinion (fatwa) in response to a specific question Mulk Land in full ownership Musha’ Communal land Muhtasib Ombudsman
23. Opportunities for Engagement /23term meaningQadi Judge in an Islamic courtQur’an Sourcebook of Islamic values and the primary source of Islamic law (Shari’a)Riba Usury, the Islamic prohibition of interestSalah Prayer or worship performed five times a day by MuslimsShari’a Islamic LawShi’a Minority branch of the Muslim community which claims the Prophet named Ali as his successorShura Concept of consultation discussed in the Qur’an, relevant in the context of democracy in IslamShuf’a Preemption, a barrier upon the free disposal of land and the means by which a co-inheritor, or in some cases a neighbor, may use a privileged option to purchase land when it is for saleSulah Conciliation, an Islamic dispute resolution technique which requires compromise between two partiesSunni Largest group within the Muslim community, who believes that Prophet Muhammad died in 632 AD without choosing any successorTahkim Arbitration, an Islamic dispute resolution technique which involves a mutually acceptable arbitratorWaqf General term for charitable endowment, also habous in North AfricaWasta Mediation, an Islamic dispute resolution technique whereby one or more persons intervene in a dispute either of their own initiative or at the request of one of the partiesWasiya Islamic willZakat Charitable obligation for Muslims
24. About this publicationThis booklet arises from GLTN’s work on Islamic dimensions of land which beganin 2004 with the commissioning of research leading to Sait and Lim’s “Land,Law and Islam: Property and Human Rights in the Muslim World” (London: ZedPress/UN-HABITAT, 2006). Based on this research a training course on “IslamicLand, Principles and Housing Rights in the Muslim World” has been producedin 2010.The booklet provides a short summary of the key principles and elements ofIslamic dimensions of land. It is intended for land professionals, policy makers,and any other stakeholder working in the land sector, who is looking for a shortoverview of these aspects of land in Muslim societies. It is intended to provide awider understanding of how to integrate Islamic dimensions into land projectsand programmes.UNITED NATIONS HUMAN SETTLEMENTS PROGRAMMEShelter and Sustainable Human Settlements Development DivisionShelter Branch (UN-HABITAT)P. O. Box 30030, Nairobi 00100, KenyaTel: +254 207623120;Fax: +254 207624266Website: www.unhabitat.org