Bismillahi Al-Rahman AlRaheem
Answer to Question: #Public_Ownership
To Nadir Az-Za’tari
Assalaamu Alaikum our honourable Sheikh, I would like to ask you a question regarding public ownership. Can a private ownership transfer to a public ownership in accordance to the Shariah rules, like transferring water springs from a private ownership into public property if that is needed for the public good? And if the public no longer needs it, does it revert as private property? Similar to oil wells when they are depleted, can they become a private property?
Thank you, and May Allah help you and make your foothold strong, Wa Assalaamu Alaikum Wa Rahmatullah Wa Barakatuhu
Wa Alaikum us Salaam Wa Rahmatullah Wa Barakaatuhu,
If any type of public ownership was as a result of a divine reason (‘illah), then the rule will follow this divine reason, whether it exists or in its absence. If the ‘illah is present then that public ownership will remain, but if it was absent, then it will be permitted to privately own that type of property, however on the condition that the ‘illah is Shar’i found in a Shar’i text.
For example, public utilities are considered as #public_property, which have been explained by the Prophet (saw) in the #Hadeeth in terms of its description, and not its quantity: On the authority of Ibn Abbas that the Prophet (saw) said:
«المسلمون شركاء في ثلاث في الماء والكلأ والنار»
“People are partners in three: Water, Pasture, and fire.” Narrated by Abu Dawoud and narrated by Anas from the Hadeeth of Ibn Abbas and he added: «وثمنه حرام» “And its price is Haram”.
Ibn Majah narrated from Abu Huraira that the Prophet (saw) said:
«ثلاث لا يمنعن: الماء والكلأ والنار»
“Three that must not be prevented: Water, Pasture, and Fire.”
This is the evidence that #people are partners in water, pasture, and fire; and that they are not permitted for ownership by individuals.
However, the Prophet (saw) permitted individuals to own water in Ta’if and Khaibar, and they did so to irrigate their plants and fields.
Similarly, some Muslims privately owned wells in Medina; Bukhari narrated on the authority of Abdullah (ra) from the Prophet (saw) that he said:
«مَنْ حَلَفَ عَلَى يَمِينٍ يَقْتَطِعُ بِهَا مَالَ امْرِئٍ مُسْلِمٍ، هُوَ عَلَيْهَا فَاجِرٌ، لَقِيَ اللَّهَ وَهُوَ عَلَيْهِ غَضْبَانُ»
“Whosoever gives oaths falsely to take the wealth of a Muslim illegitimately, he is a fajir (wicked), and will meet Allah while He (swt) is angry with him.”
And Allah (swt) revealed:
﴿إِنَّ الَّذِينَ يَشْتَرُونَ بِعَهْدِ اللَّهِ وَأَيْمَانِهِمْ ثَمَنًا قَلِيلًا﴾
“Indeed those who #exchange the covenant of Allah and their [own] oaths for a small price.” [Al-i-Imran: 77]
Al-Ash’ath came and said: An Ayah was revealed about what Abu Abdul Rahman spoke to you about me, I had a well in the land of my cousin, he asked:«شُهُودَكَ» “Your witnesses”, I said I do not have witnesses, he said: «فَيَمِينُهُ» “his oath (is required)”, I said: O Messenger of Allah, then he must give an oath, then the Prophet (saw) mentioned this Hadeeth, and Allah (swt) revealed the Ayah to support His truth.” End quote
If #partnership in water, in and of itself, and not because of the need for it, it would have not been permitted for individuals to own it. From the saying of the Prophet (saw):
«المسلمون شركاء في ثلاث في الماء»..
“People are partners in three: water…”
And the permission given by the Prophet (saw) to individuals to own water, this extracts the ‘illah in the partnership in water, pasture and fire, and it is from the public utilities that people can not live without.
Hence the #Hadeeth has mentioned three but they are based on ‘illah because they are public utilities.
Therefore this ‘illah follows what is reasoned in its existance and absence; so anything that is considered as public utility is considerd as public property, but if it is not considered as public utility even if it was mentioned in the Hadeeth like water, then it is not public property, but it is considered as property that can be privately owned. Public utilities are decided when all resources are not available for a group of people, whether it is a group living in house made of tents, or living in a #village or city or a state, and have disputed to get it, is considered public utility, like water source, pastures or woods, grazing areas for cattle, and the like.
9 plus ones
Shared publicly•View activity
Add a comment...