The Economic System
Article
123
The management of the economy is to take in
consideration the viewpoint about the targeted society
when considering the the fulfilment of the needs. So what
the society ought to be should be made the basis for the fulfilment of the needs.
This article is deduced from several
evidences and the Shari’ah rule can be deduced from single or multiple
evidences. It has been deduced from the limitation of the ownership of things
by a specific method, and the limitation of the causes of ownership to particular
causes, and the limitation of how wealth can be invested according to a
particular method, and from the prohibition of certain things and actions, and
so the management of the economy has been deduced from the evidences for these
four issues.
The management of the economy which has been
deduced from these evidences is that it is obligatory that the view regarding
wealth, from the angle that it fulfils the needs must be connected to the Shari’ah
rule regarding that wealth, and built upon it. Wheat and honey are
considered to be from the wealth, because Allah (swt) made the two of them
permitted. Whereas cannabis and alcohol are not considered to be from the
wealth, since Allah (swt) made the two of them forbidden. The money which is
used to purchase, and that which is paid as a salary, is from the wealth since
the Shari’ah permitted earning money in these two situations, whereas
stolen money and money earned through a void contract is not considered to be
from the wealth because the Shari’ah forbade them both. So the Shari’ah
rule must be examined when considering how to fulfil the needs, and it is
obligatory that it is the basis for the consideration of the reality of the
wealth fulfilling a need, or in other words the basis upon which the wealth is
produced and consumed. This is the meaning of the article when it says that the
management of the economy is the view towards how the society should fulfil the
needs, since what the society should be upon, in other words what the
relationships between the people should be based upon, is that these
relationships should be restricted by and proceed according to the Shari’ah
rules. Therefore it is obligatory that the consideration of what the society
should be upon, in other words it being restricted by the Shari’ah rules,
is present when considering how to fulfil the needs, and it should be connected
to the Shari’ah rules and based upon them, irrespective of whether that
is regarding the production of the wealth or its consumption.
Accordingly, the origin of wealth in the
system of Islam is that in order for it to be considered an economic matter
permitted to be produced and consumed, depends on what the society
should be, in other words the restriction of the
relationships between people by the Shari’a rule. And based upon this
the wealth is examined from the angle of it fulfilling the need of human
beings, the individual or the society, and upon this basis production and
consumption occurs.
Though the restriction to the Shari’ah
rule is the basis, which is general with regards to the obligation of making
the Shari’ah rule decide every action of the Muslim, the Shari’ah
did not leave the management of the economy general based upon general
evidences such as the words of Allah (swt) “And whatsoever the Messenger
gives
you, take it, and whatever he forbids you, abstain from it” (TMQ
59:7). Rather it came with detailed evidences
specific to the distribution of wealth and how to fulfil the needs with it,
which are the evidences which limit the method of ownership, its causes, and
investment, and prohibition of certain things and actions. Therefore the
management of the economy in Islam is not the consideration of wealth from the
angle of how it can fulfil the need alone, but rather it also looks at whether
it is permitted, and whether the need which it fulfils is permitted; in other
words it is based upon the consideration of the wealth from the angle of the
relationships between people restricted by the Shari’ah rules.
Article
124
The primary economic problem is the distribution of wealth and
benefits to all of the subjects of the State, and
facilitating their utilisation of this wealth and benefits, by enabling them to
strive for them and possess them.
This article explains that the economic
problem has two halves: the first being the need of the people, in other words
guaranteeing that the wealth of the country reaches every individual subject
such that no one is prohibited from it and secondly, facilitating every
individual subject to possess and benefit from this wealth.
As for the first half, its evidences are the
verses and narrations that came regarding the matters of the poor people, the
needy and the travellers. There are several of these evidences of varying
nature such that they focus the attention on the importance of this problem.
As for the verses, Allah (swt) says:
“And feed the poor who have a very hard time”
(TMQ 22:28)
“And whatever you spend in good, it will be
repaid to you in full, and you shall not be wronged; for the poor who in
Allah’s cause are restricted” (TMQ 2:272-3)
“Sadaqah (Zakat) is only for the poor, the
needy, and those employed to collect, to attract the hearts of those inclined
(to Islam), to free the captives, and for those in debt, and for Allah’s cause,
and for the traveller” (TMQ 9:60)
“And what Allah gave as booty to His
Messenger from the people of the townships – it is for Allah, His Messenger,
the relatives, the orphans, the needy, and the traveler….for the poor
emigrants” (TMQ 59:7-8)
“If you disclose your alms-giving, it is
well, but it you conceal them and give to the poor, that is better for you” (TMQ
2:271)
“And those who can fast (with difficulty)
they can feed a poor person” (TMQ 2:184)
“And he who is unable to do so, should feed
sixty poor” (TMQ 58:4)
“And they give food, despite their love of
it, to the poor, the orphan and the captive” (TMQ
76:8)
“Or giving food in a day of hunger; To a
relative orphan; Or to a poor cleaving to dust (out of misery)” (TMQ
90:14)
“Say: whatever you spend of good must be for
your parents, and kindred, and orphans, and the poor, and the traveller” (TMQ
2:215)
“But righteousness is the one who believes in
Allah, the Last Day, the Angels, the Book, the Prophets, and gives his wealth
in spite of love for it, to the kinsfolk, the orphans, the poor, the traveller,
and to those who ask” (TMQ 2:177)
“or, for expiation he should feed the poor” (TMQ
5:95)
“for expiation feed ten poor people” (TMQ
5:89)
“And in their properties there was the right
for the (poor) one who asked and the (poor) one who does not ask” (TMQ
51:19)
“And those in whose wealth there is a
recognised right; for the beggar who asks; and for the one who has lost his
property and wealth” (TMQ 70:24-5)
As for the narrations, the Messenger of Allah
said “Whenever
the people of an area wake up with a hungry person amongst them, then they have
removed the covenant with Allah” (reported by Ahmad from Ibn Umar, and
authenticated by Ahmad Shakir).
And it is narrated from him
from
what he related from Allah “The one who goes to bed full while he knows
that his neighbour is hungry, does not believe in Me” (reported
by al-Bazzar from Anas with a chain considered Hasan by al-Haythami and
al-Mundhiri).
These verses and narrations, and all the
verses related regarding spending, the rules of Sadaqat (charities), the
rules of Zakat, and repeatedly encouraging the support of the poor, the
needy, the travellers, and those who ask (beggars), in other words whoever can
be described as poor, all clearly indicate that the economic problem is the
poverty of individuals, i.e. the poor distribution of wealth amongst the
individuals which results in the poverty of the individuals. Therefore the problem is the distribution of wealth to
every individual subject of the State, and so it is obligatory to address this distribution such that the wealth reaches everyone.
The evidences which came regarding this distribution is that it must reach
every individual, and in order for it to reach every individual it is necessary
to address the one who has been prevented from it, in other words address the poor, needy, travellers, and those who ask (beggars)
– in other words whoever can be characterised as being poor. These are the
evidences for the first half of the article.
As for the second half of the article, its
evidence is that Allah (swt) gave a general permission for ownership in every
permitted manner of gaining possession, so the Messenger
said “Whoever
puts a wall around a land (that doesn’t have an owner) then it is his” reported
by Ahmad and Abu Dawud with a chain that Ibn al-Jarud [YUN1] and al-Zayn authenticated, and Allah (swt) said “Lawful
to you is the pursuit of water-game” (TMQ 5:96) and so on.
Therefore, the permission of ownership and the generality of this permission
for every individual subject of the State, whether Muslim or non-Muslim,
indicates the facilitation of possession of property, and striving for it, and
the evidences regarding the utilisation of food, clothing, shelter, and general
enjoyment came in the same manner. Allah (swt) said “So eat thereof” (22:28) and
the Messenger
said “No
one eats food better than that which he ate from his own handiwork”, reported
by al-Bukhari through al-Miqdam, and Allah (swt) said “So eat from what
Allah provided for you, lawful and good” (TMQ 5:88), “Eat of the good
lawful things We have provided for you” (TMQ 2:57) and “Who has forbidden
the adornment with clothes given by Allah, which he has produced for His
slaves, and all kinds of lawful food?” (TMQ 7:32); this is beside other
evidences. All of these came in a general form, and the generality of this
permission encompasses the utilisation by every individual subject whether
Muslim or Dhimmi; and all of this
mean that the Shari’ah facilitated possession and utilisation of wealth
for every individual subject of the State.
Built upon this, the Shari’ah
evidences came and clarified the root problem and its treatment. The root
problem was clarified as being the poverty of individuals, and the lack of
facilitation for every individual to possess and utilise wealth, while at the
same time the evidences amply demonstrated the treatment for poverty. The
evidences permitted the possession and utilisation of wealth in a general
sense, and made this permission the basis in economic issues. This is the root
problem, or by an alternative expression, the root problem is the distribution
of wealth, and not its production, since it is the poverty of individuals and
the lack of facilitation for them to possess and utilise the wealth, and not
the poverty of the country and its need of wealth. Therefore, the problem is
one of distribution and not production.
The proof that the root problem is
distribution and not production is the Shari’ah evidences which came
regarding the treatment of poverty, permitting ownership, and utilising the
possessions, and in the same manner, the reality of economic life. As for with
respect to the Shari’ah evidences, there are evidences which came to
treat the poverty of individuals, permit ownership and utilisation; in other
words evidences which came regarding distribution. And there are evidences
which came regarding the treatment of the poverty of the country, in other
words, regarding production. By close investigation of the evidences for the
two matters, it becomes clear that the evidences regarding the poverty of
individuals, and the permission of ownership and utilisation, are many in
number to the point that they attract increased attention, which indicates
heightened importance, and that they came to treat a root issue and not a
branch.
The verses and narrations related to poverty,
in other words to the poor distribution and its rectification, are abundant in
number, and the evidences which came regarding the permission of ownership and
utilisation of wealth are likewise abundant. This is from one angle, and from
another angle the issue that they are treating, which is the possession of
wealth, is a root issue in economics to the point that there is nothing more
fundamental, and all economic problems stem from it, which means that it is the
root problem. Accordingly, the root problem is distribution. In other words,
the reality that the evidences regarding poverty, permission of ownership and
the utilisation of it are abundant, and the reality that they treat the
fundamental issue from which all economic problems stem, is evidence that the
root problem in economics is distribution.
This is different to the evidences regarding
the poverty of the country, or by an alternative expression, the evidences
regarding production. These are limited in number, and came to treat what is
necessary for production, and not production itself, while that which addresses
production directly is barely mentioned. Shari’ah evidences came which
necessitate the creation of wealth in the country, in other words necessitate
the treatment of production; so the words of Allah (swt) “Make ready,
against them, your strength to the utmost of your power” (TMQ 8:60) necessitates
the presence of wealth in the country and obligates the work to bring it about.
Spreading security for the subjects of the State, and carrying out their
interests and what that necessitates that in terms of building roads, providing
water systems, building schools and mosques, providing medical services and
education, dealing with emergencies such as earthquakes and floods, undertaking
whatever is necessitated by burdens of the subjects; all of this and anything
similar necessitates the presence of wealth and the effort to produce it.
In the same manner, treating the poverty of
individuals, which is the root problem, cannot occur without the presence of
wealth, so it necessitates working to produce it. Therefore, these rules address what necessitates production, and not production itself.
However, they indicate the obligation of production from the angle that
whatever is necessary to complete an obligation is itself an obligation. As for
the rules which directly encourage the production of wealth, although they
exist they are few in number; Allah (swt) said “Then when the prayer is
ended, you may disperse through the land and seek the bounties of Allah” (TMQ 62:10),
and He (swt) said “so walk in the path thereof (of agriculture etc.) and
eat of His provision” (TMQ 67:15), and the Prophet
said “No
one eats food better than that which he ate from his own handiwork” (reported
by al-Bukhari through al-Miqdam). The Prophet
also
said “Whoever seeks good and lawful things from the World, not asking,
working in order to spend it on his family, and merciful to his neighbour,
meets Allah and his face is like the moon on the night of Badr” (reported
by al-Bayhaqi in al-Shu’ab al-Iman from Makhul as a Mursal narration).
And he
said “seeking
the lawful (halal) is obligatory upon every Muslim” (reported by
al-Tabarani in al-Awsat from Anas, with a chain considered Hasan by
al-Haythami and al-Mundhiri). These evidences are explicit in encouraging the
seeking of provision, in other words encouragement of production, or by another
expression the treatment of the poverty of the country. However, what is also
apparent from them is that they address the individual, and that the encouragement
of production is only for the treatment of their individual needs, either to
fulfil the need or to increase their property; in other words the
permissibility of utilisation.
This is from one angle. From another angle
what these evidences address or what
they necessitate is only the work for property, and not work alone. In other
words, it is production for the sake of possession and not simply production
alone, which indicates that the work produces possession, which points to it
being a branch issue and not a root one. It is a branch of possession, and not
a root for it. That is why the rules which necessitate production came
mentioning possession, and that possession necessitates production, and that
the rules which directly address production came mentioning utilisation. So in one verse it made the effort for the
sake of food, and made food from effort in the first narration, and expressed
effort through the words seeking the world and seeking that which is lawful (halal)
in the second and third narrations, so all these rules with their evidences
mean possession of wealth. All of this indicates that production is not the
root problem, rather it is a problem amongst the economic problems, and in the
same manner it indicates that the root problem is ownership, or by an
alternative expression possession, and this means that the root problem is
distribution.
This is all with respect to the Shari’ah
evidences, as for with respect to the reality of the economic life, no one
denies that every country which suffers from economic unrest is due to
suffering from poor distribution, and not due to low production. The socialist
system, including communism, only arose as a result of the oppression which the
society suffered from the capitalist system, or in other words a result of poor
distribution. The social benefits which the capitalists tried to implement in
their system are all connected to the distribution. The socialist solutions
only deal with the issue of distribution, and the regions which are called the
third world such as the Islamic countries in these days, are only backward due
to the poor distribution, and not due to the poverty of the country.
Accordingly, the reality of the root problem in economics is poor distribution
and not lack of production. This is something that can be sensed, and every
person can sense it, whether Muslim, capitalist or socialist. This is since the world as a whole produces
much more than the people require, but the poor distribution is what makes some
people obscenely rich, while others are destitute and poor. Even in the
countries that suffer from low production the root economic problem is
distribution first and then low production. Based upon this, the reality of the
economic life indicates that the root problem in the economy is distribution,
and not production.
Article
125
It is obligatory to guarantee that all the
basic needs are met for everyone, and are completely met on an individual
basis, and to guarantee that every individual is facilitated to satisfy the extra needs (non-essential needs) to the highest level
possible.
This article has two halves: firstly,
guaranteeing that the basis needs are satisfied and secondly, facilitation of
the satisfaction of the luxurious needs.
The first half has several evidences for it,
since the Legislator (swt) encouraged earning, seeking provision and effort,
and made the effort to earn provisions a duty; Allah (swt) said “so walk
in the path thereof (of agriculture etc.) and eat of His provision” (TMQ 67:15) and
“Then when the prayer is ended, you may disperse through the land and
seek the bounties of Allah” (TMQ 62:10). The Prophet
said “It
is enough sin for a man that he deprives those whom he supports” (reported
by Abu Dawud with an chain that al-Nawawi authenticated from ‘Abd Allah b.
‘Amru b. al-‘As). This is the origin in guaranteeing the person’s satisfaction
of all their basic needs through his earning. So Allah (swt) made work a duty
upon the needy male who is capable in order for him to satisfy his needs. This
means that work is compulsory on this capable person and if he does not
undertake it he would be punished as is the case with every duty. As for women,
and those men who are incapable of work, it is a duty to provide them with
maintenance and this is a binding right for them, and the State is bound to
provide it. Maintenance of the wife is a duty upon the husband; the Prophet
said “And
their right over you is that you provide for them and dress them with what is
good”. Maintenance for the children is a duty upon their father; Allah
(swt) said “the father of the child shall bear the cost of the mother’s
food and clothing on a reasonable basis” (TMQ 2:233), and the Messenger of Allah
said
to Hind “Take whatever is sufficient for you and your child that is
reasonable” after she had complained that Abu Sufyan was a miserly man.
Maintenance for the inheritor;
Allah (swt) said “and on the heir (of the father) is incumbent the like
of that (which was upon the father)” (TMQ 2:233) after His (swt) words “the
father of the child shall bear the cost of the mother’s food and clothing on a
reasonable basis”, so the Shari’ah obligated the maintenance of
the female without restriction upon the inheritor,
since it did not make seeking an earning a duty upon her, and obligated upon
him the maintenance for the incapable males, if they were poor.
In the absence of anyone who was obligated to
pay maintenance, or if they were present but unable to pay the maintenance, the
Shari’ah obligated this maintenance upon the Bayt al-Mal, in
other words upon the State. It is narrated that Abu Hurayrah said “The
Messenger of Allah
said
“Whoever left behind an orphan (kallan), then they are upon us, and whoever
left behind wealth, then it is for their inheritor” (agreed
upon from Abu Hurayrah), and the kall is the weak who has no father or son. In
another chain of the narration it is mentioned “whoever leaves behind
wealth then it is for their inheritor, and whoever leaves behind debt or
children (diyaa’an) then they are for us and upon us” (reported
by Muslim from Jabir), and the diya’an is in other words the children;
it is mentioned in al-Muhit dictionary “al-diya’ is also the
children”. So through these evidences the Shari’ah has
guaranteed the fulfilment of the basic needs of the poor if they were female,
or a male who was not capable of earning or if his earnings were not enough.
The incapable according to the Shari’ah
is either the one literally unable to work, or the one who is incapable from
the view of the law, meaning the one who is unable to find work through which
he could gain his earning. Both of these are considered incapable.
Through these evidences the Shari’ah
guaranteed them the fulfilment of all of their basic needs by maintenance, for the
female without restriction, and for those men who are either literally or
legally incapable, and this is initially upon the husband and any inheritor,
and if they were not found or were incapable then upon the Bayt al-Mal,
in other words the State.
In order for the Shari’ah to guarantee
that the Bayt al-Mal could carry out this maintenance, special concern
is given to specific income, and so the Bayt al-Mal has a section for
the Zakat for the poor; “Sadaqah (Zakat) is only for the poor, the
needy” until the words “and for the traveller” (TMQ 9:60).
If the Zakat is not sufficient, then the maintenance must be paid from
other income to the Bayt al-Mal due to the words of the Prophet
“whoever
leaves behind debt or children then they are for us and upon us” (reported
by Muslim from Jabir), in other words upon the State, and due to his
words “The
Imam is a guardian and he is responsible for his subjects” (reported by
al-Bukhari from Abdullah Bin Umar), and amongst the most important
responsibilities to his subjects is to guarantee the fulfilment of their basic
needs. Therefore their maintenance is provided from the income of the Bayt
al-Mal, since it is from the State responsibilities to distribute the
maintenance to the poor. If the confirmed income of the Bayt
al-Mal was not sufficient, taxes would be imposed upon the rich Muslims in
accordance with what would be enough to provide this maintenance, and it would
be taken from them by force in order to get it to the Bayt
al-Mal for the sake of this maintenance, since this is from the reasons that
the Khalifah can impose taxes. This is because if the Zakat and the confirmed
income of the Bayt al-Mal is not sufficient to provide the maintenance,
then it becomes a duty upon all of the Muslims; the Messenger
said “Whenever the people
of an area wake up with a hungry person amongst them, then they have removed
the covenant with Allah” (reported
by Ahmad from Ibn Umar and authenticated by Ahmad Shakir), which is a report
that implies a request to feed the hungry, and is connected to a blame, and so
the request is definite, which therefore indicates that it is obligatory upon
them. Therefore, the Khalifah can impose taxes upon who is capable of
them, and take it from them even by force if necessary, since he is executing a
duty.
This is all evidence that the Shari’ah
obligated guaranteeing the satisfaction of all the basic needs for all the
individuals, on an individual basis, and specified the income which guarantees
the undertaking of this fulfillment, and guarantees its undertaking and
continuation of it.
This is from the angle of guaranteeing the
fulfilment for all of the individuals, on an individual basis. As for the angle
that the fulfilment is of all the basic needs, the reality of life for the
individual is that the basic needs are food, clothing and shelter, and the Shari’ah
evidences which came guaranteed maintenance, and maintenance is food, clothing
and shelter. Above and beyond that there are evidences that indicate that these
three (food, clothing, and shelter) are the basic needs, and anything else is
surplus and extra.
As for the evidences that maintenance is
food, clothing and shelter, Allah (swt) said “the father of the child
shall bear the cost of the mother’s food and clothing on a reasonable basis” (TMQ 2:233)
and said “Lodge them where you dwell according to your means” (TMQ 65:6) and
said “on a scale of the average of that which you feed your own families”
(TMQ
5:89), and so Allah (swt) clarified that food, clothing and shelter is
maintenance. The Prophet
said
about women, in other words wives, “And their right over you is that you
provide for them and dress them with what is good” (reported
and authenticated by Al-Tirmidhi from Amru b. al-Ahwas). In another narration
he
said “And
their right over you is to provide for them and cloth them with what is
reasonable” (reported by Muslim from Jabir). These are evidences that the
maintenance is food, clothing and shelter, and that these are the basic needs.
As for the evidences that food, clothing and
shelter are the basic needs and anything else is extra, it is narrated from the
Prophet
that
he said “Everything other than the shade of a house, the chunk of bread
and a clothing to cover his ‘awrah, and water, and the son of Adam has no right
in anything surplus to that”. And it is narrated with a different
wording “The son of Adam has no right to anything except these
properties: a house to live in, a clothing to cover his ‘awrah (parts of body
that must be covered in public), a chunk of bread, and water” (reported
by Al-Tirmidhi who said it is Hasan Sahih). The wording of the two narrations indicates that what has
been mentioned in these narrations, which was food, clothing and shelter; “shade
of a house” “a house to live in” “a clothing to cover his ‘awra”, “a
chunk of bread and water” is enough and sufficient. And his
words
in the narration “and the son of Adam has not right in anything surplus
to that” is absolutely clear that these three are the basic needs. Therefore,
these two narrations relate that the basic needs are food, clothing and
shelter, and anything extra is not basic. By fulfilling these three, the basic
needs of individuals would have been satisfied.
As for the evidence that this satisfaction
must be complete satisfaction, this is what was related in the evidences when
it mentioned that this fulfilment must be reasonable (bi ’l -ma’ruf),
and be of a sufficient amount, since Allah (swt) said “on a reasonable
basis (bi ’l-ma’ruf)” in His (swt) words “the father of the child shall bear the cost of
the mother’s food and clothing on a reasonable basis” (TMQ 2:233),
and the Messenger
said “reasonable
(bil ma’roof)” in his words “And their right over you is to
provide for them and cloth them with what is reasonable”. And the
meaning of what is reasonable (bi ’l-ma’ruf), is in other words
what is reasonable between people. And he
said “whatever
is sufficient” in his words to Hind, “Take whatever is sufficient
for you and your child that is reasonable (bil ma’roof)” (agreed
upon from the narration of Aaisha (ra)), and so it mentions that it should be a
sufficient amount. This indicates that the satisfaction should be complete, or
in other words all of the basic needs should be satisfied according to what is
reasonable amongst the people. So sufficiency is a condition, in other words
until they are satisfied by food, covered in clothes, and have accommodation.
Along with sufficiency, it is a condition that this sufficiency is met by what
is reasonable, in other words not simply sufficient by the lowest criteria, but
rather sufficient by what is reasonable in that country which they live, and
the people that they live amongst. Accordingly it is confirmed that the
satisfaction must be complete, and all of this is the evidence for the first
half of the article.
Additionally, the Shari’ah evidences
did not obligate meeting the basic needs of the individuals person by person
alone; rather they also obligated fulfilling the basic needs of the Ummah
by ensuring security, medical care and education for the citizens.
Security is one of the primary obligations of
the State, since it spreads security and safety for its citizens, to the point
that the State loses its entity if it is not able to provide it. Accordingly it
is a condition in Dar Al-Islam that the Islamic State is capable of
preserving its security with its own powers, and this is why when the Messenger
of Allah
informed the Muslims about the abode of their
emigration, the first thing he mentioned was security. He
said
to his companions in Makkah according to what Ibn Ishaq reported in his Sirah
“Allah made brother for you and an abode that you feel safe in”,
and similarly when the Ansar met the Messenger of Allah
and
his companion Abu Bakr (ra), the first thing they said to them as reported by
Ahmad with an authentic chain from Anas “They were met by about five
hundred from the Ansar. The Ansar said: Set off, you are both in safety and
obeyed”,
and so the spreading of safety for the citizens is from the essential
duties of the State.
Health and medical care are from the
obligations of the State such that they must be readily available for the
citizens, from the angle of clinics and hospitals, and public utilities used
for treatment by the Muslims. So, medical treatment from this angle is part of
the interests and public utilities. The interests and public utilities must be
undertaken by the State since they are from the issues that the State is
responsible over, in accordance with the words of the Messenger
“The
Imam is a guardian, and he is questioned over his responsibility” (reported
by al-Bukhari from Abdullah Bin Umar). This text is general regarding the
responsibility of the State for health and medical care since they are part of
the obligatory responsibilities of the State.
There are evidences specific to health and
medical care: Muslim reported from Jabir
who said “The Messenger of Allah sent Ubay Bin Abi Ka’b, so he cut
a root for him and then ironed it on him”. And Al-Hakim narrated in al-Mustadrak
from Zayd b. Aslam from his father who said “I fell severely ill in the
time of Umar b. al-Khattab, and so Umar called a doctor for me, and so he
warmed me up to the point I would suck on date pits due to the intense heat”.
In his capacity as a ruler, the Messenger
sent a
doctor to Ubay, and Umar (ra), the second righteous Khalifah, called a doctor for Aslam to
treat him, which are two evidences that health and medical care are from the
essential needs of the citizens that the State must make sure are readily
available for whoever needs them.
As for the evidence of education (being a basic need), the
Messenger of Allah
made
ransom of the disbelieving prisoners that they should teach ten of the Muslim
children. Ransom is part of the war booty, which is the property of the
Muslims, and the consensus of the companions on setting aside a specific amount
from the treasury (Bayt al-Mal) as salary for teachers.
Accordingly, it is obligatory upon the State
to provide security, medical care and education for all of the citizens, and to
make that part of the treasury issues, without any difference made between the
Muslims and Dhimmi, or rich and poor.
The importance of the essential needs for the
individual and Ummah is explained by the Messenger of Allah
in
that the provision of these needs is like possessing the world in its entirety,
an allusion expressing the importance of these needs. Al-Tirmidhi reported from
Salamah b. ‘Ubayd Allah b. Mihsan al-Ansari from his father, who was a
companion, said: The Messenger of Allah
said “Whoever
wakes up safe in himself, with a healthy body, and he has the food for his day,
it is as though the world has been given to him” (Abu ‘Isa said this
narration is Hasan gharib).
And similarly Ibn Maja reported it with a Hasan chain, and Abu Nu‘aym
has a similar report in al-Hilyah from Abu ’l Darda’, but with the extra
part ‘all of it’, in other words “as though the whole of the world has
been given to him”.
These evidences all indicate the obligation
of guaranteeing the fulfilment of all the basic needs for all of the citizens
individually, in terms of food, clothing and shelter, and in the same manner
indicates the necessity of the wide provision of the essential services for the
Ummah from security, health and education.
As for the second half from the article, facilitating the fulfilment of
the luxurious needs (non-essential needs), then the obligation of work upon the
capable male is an evidence for the facilitation of the fulfilment of the
luxurious needs in the same manner as the basic needs. This is because the
encouragement for earning is not restricted to the fulfilment of the basic
needs, so this generality is evidence that the Shari’ah enables the
individual to fulfil their non-essential needs from their earnings. Additionally,
the permission to enjoy the good/lawful things is also an evidence for the
facilitation of the fulfilment of the luxurious needs:
Allah (swt) “Eat from the good
lawful things We have provided for you.” (TMQ
2:57)
And “Say who has forbidden the adornment with
clothes given by Allah which He has produced for His slaves, and all kinds of
good and lawful things from food.” (TMQ
7:32)
And “And let not those who covetously withhold of
that which Allah has bestowed on them of His Bounty think that it is good for
them, nay it will be worse for them, the things which they covetously withheld,
shall be tied to their necks on the Day of Judgemen.t” (TMQ 3:180)
And “O you who believe! Make not unlawful the
good and lawful things which Allah has made lawful to you.” (TMQ 5:87)
And “Let the rich man spend according to his
means.” (TMQ 65:7)
And “and forget not your lawful portion from this
world.” (TMQ 28:77)
All of this is evidence that the Shari’ah permitted every
individual to fulfil his non-essential needs, so by this permission it enabled
him to satisfy himself. On top of that is what has been related to the
prohibition of miserliness, and rebuke of whoever prohibits the enjoyment of
lawful things, which clearly indicates this enablement.
Article
126
The wealth belongs to Allah (swt) alone, and
He (swt) has made human beings the trustees of it. Through this general trust
they have been given the right to ownership of wealth.
Allah (swt) has permitted for the individual to possess the wealth; so
through this specific permission, he managed to possess it practically.
The evidence for this article are His (swt)
words “And give them something out of the wealth of Allah which He has
bestowed upon you” (TMQ 24:33); so the wealth is ascribed to Allah (swt). And His
(swt) words “And give you increase in wealth and children” (TMQ 71:12);
so the increase in the wealth for people is ascribed to Allah (swt). Also, His
(swt) words “spend of that whereof He has made you trustees” (TMQ 57:7),
and so accordingly He (swt) made man the trustees of Allah (swt) in the wealth,
as it was Allah (swt) who made them the inheritors, so the wealth in origin
belongs to Allah (swt). Therefore the ownership of the wealth is with Allah
(swt), but He (swt) has made the people the trustees of it, which has given
them the right to its ownership. For this reason the verse regarding the
entrustment is not an evidence for private ownership, but rather it is evidence
that the human being from the aspect of being human, has the right of ownership
of wealth.
As for practical private ownership, or in
other words the fact that it is permitted for him to actually possess wealth,
this comes from another evidence, which is the cause which permitted the
individual to practically come into possession. For example his
words “whoever
puts a wall around a land then it is his” (reported by Ahmad and Abu
Dawud with a chain authenticated by al-Jarwad and al-Zayn), and his
words “whoever
revives dead land, then it is his” reported by al-Bukhari for Umar as a
ta’liq (title heading without chain mentioned) and also reported by
Ahmad and Al-Tirmidhi with an authentic chain from Jabir, and the words of
Allah (swt) “There is a share for men and a share for women from what is
left by parents and those nearest related” (TMQ 4:7) and “Lawful to you is
(the pursuit of) water-game” (TMQ 5:96), amongst other texts.
Accordingly, the right of ownership of
whatever Allah (swt) created is confirmed for every human, and practical
ownership requires permission from the Legislator (swt) regarding how it can be
achieved and which wealth can be sought. In other words, evidence from the Shari’ah
is required which permits this possession to practically take place.
Therefore the article comprises of three elements.
Firstly, that ownership is for Allah (swt): “And
do give them something out of the wealth of Allah” (TMQ 71:12).
Secondly, that the person has the right to
own wealth, the evidence being the verse regarding entrustment/succession “spend
of that whereof He has made you trustees” (TMQ 57:7).
Thirdly, that the practical taking of
ownership of the wealth by the individual requires permission from the
Legislator (swt) - in other words evidence which permits the ownership of it in
practical terms, and the evidence for this are the texts regarding the
permission of practically taking ownership.
Accordingly the evidences for this article
have been made clear.
Article
127
There are three types of property – private,
public and State.
The evidence for each type of property has
been deduced from the Quran and Sunnah, and through close examination of
all of the types of property deduced from the Shari’ah evidences.
Investigation of the Shari’ah evidences regarding property along with
the definition of every type of property deduced from a Shari’ah
evidence, indicates that the type of ownership is confined to the three
mentioned in this article.
Article
128
Private property is Shari’ah rule
determined by the property itself or the benefit from it. This qualifies the one
that ownsa property to benefit of itorgetsan exchange for it.
The evidence of this article is the Shari’ah
evidences which indicate that the definition of private ownership is the
permission of the Legislator (swt) for the utilisation of the property itself,
which encompasses His (swt) permission with respect to utilisation, which in
turn requires an evidence for every utilisation since it is the action of the
worshipper, and so it is imperative that there is an address from the
Legislator (swt) regarding it. In the same way it also encompasses His (swt)
permission with respect to whether the property itself can be utilised or not,
which does not require an evidence for every item. Rather, the origin in every
property is that it has been permitted to be owned due to the general evidence
in His (swt) words “And He has subjected to you all that is in the
heavens and all that is in the Earth” (TMQ 45:13), and so the prohibition of
owning a specific property requires a text.
Accordingly the evidences for the permission
of utilisation permitted the possession of the property, and the evidences
which permitted every thing for human beings gave him the general permission to
own anything, and so it has been deduced from these two issues that the
definition of ownership is the permission of the Legislator (swt) for the
utilisation of the property itself. This is the meaning of the definition
mentioned in this article.
If we take the example of the ownership of a
loaf of bread, it would be said that the loaf of bread is the property, and it
is determined that the Shari’ah rule regarding it is that the Legislator
(swt) gave permission for people to utilise it, through consumption, benefiting
from it and exchanging it. This permission for utilisation necessitates that
the owner, who is the one whom the permission relates to, is enabled to eat the
loaf of bread and similarly is enabled sell it. So the determined Shari’ah
rule for the property, in other words the loaf of bread, is that there is
permission to consume and exchange it.
The definition mentioned in this article was
based upon this, and this definition means the permission of the Legislator for
the utilisation of the property. The article was drafted upon this basis.
Article
129
Public property is the permission of the
Legislator (swt) for the community to collectively utilise
the property itself.
The evidence for this article is that the Shari’ah
evidences indicate that the definition of public property is the permission of
the Legislator (swt) for the community to collectively utilise the property,
and the evidences for this definition are the texts related regarding public
property. The words of the Messenger
“The
Muslims are partners in three: water, pastures and fire” reported by
Ahmad from a man from the companions of the Prophet
, and his narrators are trustworthy, and what
Al-Tirmidhi narrated from Abyad b. Himal “He came to the Prophet
and
asked him to grant him a salt laden land, and he granted it to him. And when he left,
one person in attendance with the Prophet said “Do you know what you granted
him? You granted him the countless water”. He
then
took it away from him”. The countless
water is that which does not deplete, in other words if you extracted a mineral
from it, it does not deplete. And he
said “Mina
is a way station for whoever gets their first” reported by Al-Tirmidhi
from Aaisha (ra) and he said it is Hasan Sahih, and Mina is the famous
location in the Hijaz which the pilgrims descend to after standing at
Arafat, and all the people can rest their camels there if they arrive there
before others. And the Prophet
affirmed that people participate in the use of
general roads. The definition of public property was derived from all of this,
since these texts indicate that the Legislator (swt) gave permission to people
to participate collectively in these things and hence it was deduced. On this
basis the article was drafted.
Article
130
State property is every wealth whose
expenditure is determined by the opinion and Ijtihad of the Khalifah,
such as the wealth derived from taxes, land tax and Jizya.
Its evidence is that the Shari’ah
evidences indicated that the definition of State property is the permission of
the Legislator (swt) for the Khalifah to spend the wealth according to
his opinion and Ijtihad. The
Messenger
used
to spend the wealth from the war booty according to his opinion and Ijtihad, and likewise the wealth from
the Jizya and land taxes which were
collected from the different lands. There is a Shari’ah text which shows
that it was left to the Messenger
to
spend it according to how he
saw
fit, which is an evidence that the Imam
can spend this wealth according to his opinion and Ijtihad, since the action of the Messenger
is a Shari’ah
evidence and so it is a permission for the Imam to spend this wealth as he sees fit according to his opinion
and Ijtihad. Therefore, that is the definition of State property.
For this reason, the expenditure of the Zakat
has not been left to the Khalifah to decide according to his opinion and
Ijtihad, rather the categories it can
be spent upon have been specified and the State is the guardian over spending
it in those areas, and so the Khalifah cannot increase the categories
according to his opinion and Ijtihad.
Based upon this, if there is a Shari’ah text
reported that permits the Imam to
spend specific wealth according to his opinion and Ijtihad, then that wealth is considered to be the State’s wealth,
and the text of the Legislator (swt) is a permission for the Imam to spend it according to his
opinion and Ijtihad. Accordingly,
the wealth of war booty, land taxes, Jizya and anything similar from taxes, and the
returns from the State properties, is all State wealth. The definition which
was deduced from the actions of the Messenger
, and the
generality of the texts which came ordering the utilisation of this wealth,
apply upon all of the aforementioned issues. This article was drafted upon this
basis.
This is the
definition for every category of property, and these are the evidences that
each of these definitions was deduced from. By examining these definitions
which were drafted regarding ownership, and the evidences which they were
deduced from, it becomes clear that property falls under one of the following
three categories: private property, public property and State property. As for
the wealth from Zakat, this is not possessed by any specific person, rather it is possessed
by specific sections, and so it is considered to be from the category of
private property, since the Legislator (swt) permitted those sections to
possess it through the conveyance of the one giving it, irrespective of whether
that was the one giving the Zakat directly or the Imam, and for that reason it is not considered
to be a fourth category of property. Accordingly, property is categorised
according to these three categories, and the details of the Shari’ah
evidence for article 127 have been made clear.
Article
131
Private property consisting of liquid and
fixed assets is restricted to the following five Shari’ah means:
a.
Work
b.
Inheritance
c.
The need of wealth for the sake of liing
d.
Donation from the
wealth of the State to its subjects
e.
Funds taken by
individuals without any effort or purchase
There must exist means through which the Legislator (swt) permits ownership, so
if the Shari’ah cause is present, then the ownership of the wealth is
present. If on the other hand the Shari’ah means is not present then there is no ownership of the wealth
even if it is practically possessed, since ownership is the possession of the
wealth through a Shari’ah means through which the
Legislator (swt) permitted its possession. The Legislator (swt) restricted the means of possession to specific circumstances, limited them to
a specific number, and did not leave them unrestricted, and made them clear
expansive lines under which are a number of parts which are its branches and
issues from its rules. They were not given a specific comprehensive Illah
(Shari’ah reason) and so other comprehensive issues are not made
analogous to them. That is because new needs only occur in the present wealth,
and not in the transactions; in other words not in the system of relations but
rather in its subjects. Therefore it is necessary to limit the transaction to
specific circumstances, which apply to new and numerous needs, and upon the
wealth from the angle that it is wealth, and upon the effort from the angle
that it is effort. And in the restriction of private wealth in a manner that
agrees with the nature (fitrah), and organising the ownership such that
the society is protected from the mistakes that result from it if left
unrestricted.
This article explains the Shari’ah means for ownership, in other words the situations which the
Legislator (swt) permitted the utilisation of the property. It is imperative
that the practical means of ownership are known and not the means of increasing the property. The Legislator (swt)
clarified the means of ownership, in other words the means for the ownership of the original wealth, which means
the means which brings about the ownership of wealth for the
individual after he did not own it originally. And the Legislator (swt)
clarified the means of increasing the wealth, in other words the means for increasing the wealth which he owned. The Shari’ah
came with rules connected to both ownership and increasing ownership. The trade
and rent contracts are from the rules which are related to increasing the
wealth, in other words increasing ownership. Working in hunting, and
partnerships, are from the rules connected to ownership, in other words with
possession of the origin of the wealth. This article is concerned with the means for ownership and not those of increasing the ownership.
The evidence for this article is the
investigation of the evidences which explained the permission of the Legislator
(swt) for the utilisation of the product, in other words investigation of the
evidences regarding practically taking possession. With investigation, it
becomes clear that the primary means for possession are
five and all the means of possession fall under one of these five.
As for the evidences for these five means: the first means (A) is work, and its evidences are the evidences of the
circumstances that an individual gains wealth through effort, in other words
creation of wealth from the angle that it is done through work, which are seven
circumstances:
First:
Reviving dead land, its evidence being the words of the Prophet
“whoever
revives dead land, then it is his” reported by Ahmad and Al-Tirmidhi
with an authentic chain and also by al-Bukhari from Umar, and his
words “whoever
repopulates a land which didn’t belong to anyone then it is his” reported
by al-Bukhari from Aaisha (ra). And his
words “whoever
puts a wall around a land then it is his” reported by Ahmad and Abu
Dawud with a chain authenticated by Ibn al-Jarwad and al-Zayn. Dead land is the
land where there are no signs that anyone holds its possession and so there is
nothing in terms of fencing, agriculture, building or anything similar.
Reviving it is through anything which indicates inhabitation, such as
agriculture, planting trees, building and so on. Similar to revival is to place
something which indicates that someone has taken possession of it, such as
planting hedges or fencing or pillars and so on.
And so any individual citizen who revives a
dead land takes possession of it according to the rules of the Shari’ah,
irrespective of whether they were a Muslim or a Dhimmi: because the texts are general, encompassing all the
individual citizens.
Second:
Hunting, its evidence being the words of Allah (swt) “when you finish the
ihram you may hunt” (TMQ 5:2), and His (swt) words “Lawful to you is (the
pursuit of) water-game” (TMQ 5:96).
Third: To
act as a middle-man or commission agent, the evidence being what was narrated
from Qays b. Abi Gharza al-Kanani who said “We used to buy cargo in Madinah
and we would call ourselves brokers, so the Messenger of Allah
came
out to us and called us with a better name, he
said:
‘O you gathering of traders, truly selling entails foolish talk and the taking
of oaths, so mix it with charity’” (reported by Ahmad with an authentic chain).
Fourth: the mudarabah
partnership (where one person invests wealth into a partnership, and the other
invests effort), its evidence being what was narrated from al-Abbas Bin
Abdul-Muttalib that when he handed a property as mudarabah, he used to
stipulate on the partner not to travel with it by the sea, nor to descend a
valley nor to trade with live things, otherwise he would have to guarantee
losses incurred. The Prophet of Allah
became
aware of that and he
approved of it. Even though al-Hafiz said that
“al-Bayhaqi reported it with a chain that he found weak”, mudarabah (al-qirad)
is confirmed by the consensus of the companions: Ibn Hazm said in Maratib
al-Ijma’ regarding it after he mentioned that he did not find an evidence
for it in the Sunnah: “but it is a correct consensus. We are certain
that it used to take place at his
time,
and he
knew
about it and confirmed it, and if it was not for that it would not be
permitted”, the same as al-Hafiz reported about Ibn Hazm in Talkhis
al-Khabir.
From the evidences of the consensus of the
companions:
Malik reported from Zayd Bin Aslam from his
father that he said: ‘Abd Allah and ‘Ubayd Allah, the two sons of Umar (ra)
went out with the army to Iraq. They passed by Abu Musa al-Ash’ari, who was the
Amir of Basra, and he welcomed them
and said: If I was able to help you with any issue, I would. Then he said: Here
is some of the wealth from the wealth of Allah (swt) that I want to send to the
leader of the believers. I will lend it to you, so buy some of the goods from
Iraq, and sell them in Madinah. Give the capital to Umar (ra) and keep the
profit for yourselves. They replied: we would like that. So he did that and
wrote to Umar (ra) informing him about their taking the wealth. When they
returned to Madinah they sold the goods and made a profit, and so when they
gave the original capital amount to Umar (ra), he said: Were all the soldiers
given similar to what you were given? They replied in the negative. And so Umar
(ra) said: Because you were the sons of the leader of the believers, he gave it
to you. Give me the money and its profit. ‘Abd Allah remained silent. As for
‘Ubayd Allah, he said: this is not necessary for you O leader of the believers,
if this wealth was reduced or destroyed we would have guaranteed it (in other
words paid the original capital in full). And so Umar (ra) said: Give it to me.
Abdullah remained silent and ‘Ubayd Allah repeated what he had said. A man from
those sitting around Umar (ra) said: O leader of the believers, if you made it
a qirad for him? (in other words a mudarabah partnership), and so Umar (ra)
said: I made it as a qirad (loan)
for him. So, Umar (ra) took the original capital, and half of the profit, and
his two sons took the other half of the profit. This was reported in al-Muwatta
and al-Hafiz said its chain is authentic and this was done in front of a crowd
of the companions.
Similarly the action of al-qirad (al-mudarabah):
Malik reported from al-Ala Bin ‘Abd alRahman
from his father from his grandfather that ‘Uthman b. ‘Affan (ra) gave him money
as qirad to work with it, and the profit to be split between them.
And al-Bayhaqi reported in al-Sunan
al-Kubra, and al-Hafiz said that the chain is strong, from Hakim b. Hizam
that he used to give money to a man on the basis of qirad, and made it a
condition that he wouldn’t go to the Wad valley with it, and not buy animals
with it, nor transport it overseas, and if he did any of that he would be
liable for it. He said: if he overstepped the limits, he would be liable.
Fifth: the musaqah
(renting trees for a portion of their yields) partnership, its evidence is
what was narrated by ‘Abd Allah b. Umar who said “The Messenger of Allah
contracted the people of Khaybar over half of
what was produced of fruit or crops”
(agreed upon).
Sixth: working
for someone else for a salary, the evidence being His (swt) words “Then
if they give suck to you children for you, give them their due payment” (TMQ 65:6),
and what was narrated by Aaisha (ra) who said “The Messenger of Allah
hired a man from Bani al-Dil as an experienced guide who was of the same Deen
as his people. They handed to him their two female riding camels, and fixed an
appointment with him to meet them at the cave of Thawr after three nights”
(reported by al-Bukhari).
Seventh:
Buried minerals/treasures, and its evidence being the words of the Messenger
“And
in the treasure there is a fifth (for taxes)” (agreed upon from Abu
Hurayrah).
These are the evidences for the seven
circumstances which are the evidences for the first means of ownership which is work.
As for the second means (B), inheritance, its evidence is the words of Allah (swt) “Allah
commands you as regards your children’s (inheritance): to the male, a portion
equal to that of two females; if (there are only) daughters two or more their
share is two thirds of the inheritance” (TMQ 4:11) alongside the
rest of the texts regarding inheritance from the Quranic verses and the
narrations from the Sunnah.
The third means (C) is the need for wealth for the sake of living, and its evidence is the evidence for maintenance, from
the fact that it is obligatory to be given to the individual if they are unable
to earn enough practically, such as the one who is small, or incapable of work,
or is legally considered like the one unable to work even though he is capable.
So the Shari’ah made it obligatory upon those close inheritors to him to
provide him with maintenance and if they are unable to then it falls upon the Bayt
al-Mal. The indication of that evidence is that he possesses that wealth
which he took as maintenance in order to survive.
The fourth means (D) is the State
donation of some of its wealth, such as granting some portions of land, or
giving wealth in order to repay the debts, or agricultural assistance. The
evidence for the granting of land is what was narrated from Bilal al-Muzni that
“the Prophet
granted him of the land of al-Aqiq” reported by Abu ‘Ubayd in al-Amwal, and
what was narrated from ‘Amru b. Shu‘ayb who said “The Prophet granted
land to some people from Mozinah or Johainah” reported by Abu Yusuf in al-kharaj.
With respect to the issue of giving money to repay the debts, Allah (swt) gave
some of the shares of Zakat to indebted people; He (swt) said “and
for those in debt” (TMQ 9:60). The Messenger
said “whoever
left behind a debt then it is upon me, and whoever left wealth then it is for
his inheritors” (agreed upon from the narration of Abu Hurayrah), and the
meaning of the words of the Messenger
“upon
me” is that it is upon the
State, or in other words upon the Bayt al-Mal. And as for giving the
farmers money for the sake of agriculture, Umar b. al-Khattab (ra) gave money
from the Bayt al-Mal in Iraq to assist the farmers in the cultivation of
their land and helped them pay for their requirements without taking anything
back from them, and no one rebuked him over that even though it was something
that should have been rebuked (if it was not permitted in origin), and so it is
an Ijma’.
Therefore, these three circumstances:
granting land, giving money to repay debts, and giving financial assistance for
agriculture, are all causes for ownership. The Imam has the right to spend the wealth of the State according to
his opinion and Ijtihad in any permitted issues and so
whoever has the money spent upon them has gained the ownership of the wealth
through this donation.
As for the fifth means (E), it encompasses
five circumstances:
First: The relationships of
individuals with each other, such as giving gifts (hadiyah), donations (hibah), and through a [s2] bequest (wasiyyah). It is narrated
from Abu Hamid as-Sa‘adi who said “We
fought alongside the Messenger of Allah (saw) at Tabuk. The King of Ayla gave
the Prophet
a white mule and a
cape as a gift” (reported by al-Bukhari). This
is evidence for the permission of gifts. And the Prophet
said “If you give gifts you will love each other”, reported by al-Bukhari in al-Adab al-mufrad from Abu Hurayrah, and also
reported by al-Bayhaqi, which indicates the permissibility of gifts, and he
said “No one should take back their gift, except
what the father gave to his son” reported by Ibn Maja from Amru Bin Shu’aib from his
father from his grandfather, and he
said “The one who takes back his donation (hibah) is
like the one who takes back his vomit” agreed upon from Ibn ‘Abbas, which indicates the
permissibility of donations. And he
said to Sa’ad Bin Malik “Bequeath a third,
and a third is a lot” (agreed upon from Sa’d). This is the evidence for the permissibility
of leaving behind a will.
Second: being entitled to wealth as
a recompense for harm, such as the compensation for killing someone and the
compensation for injury; Allah (swt) said “and whosoever kills a believer by mistake he
must see free a believing slave and pay compensation to their family” (TMQ 4:92), and the Prophet
said “Five camels for a tooth” (reported by al-Bayhaqi and authenticated by Ibn
Hibban and al-Hakim), and he
said “The recompense for a finger or of hands or
legs is ten camels for each one” (reported by Al-Tirmidhi from Ibn ‘Abbas, and he said that the narration
is Hasan
Sahih).
Al-Bayhaqi reported something similar in the book of Abu Bakr Bin Muhammad.
Therefore, the bereaved family receive the compensation for the one killed and
the injured person received the compensation for the limb lost.
Third: being entitled to mahr (dowry) and its dependencies;
Allah (swt) said “And give the women their dowry” (TMQ 4:4), and so she possesses her
dowry simply through the marriage contract.
Fourth: that which is found. The
Messenger
was asked about anything which was found and
he said “Whatever
you found on the used (meeta) road or on a village then announce it in the area
around it one year, if its owner comes (then it is his) otherwise you can keep
it” (reported by Abu Dawud from
‘Abd Allah b. ‘Amru b. ‘al-As). ‘Iyad Bin Himar said: the Messenger of Allah
said “whoever found a lost property, let him have
two just witnesses over it, or protect it and tie it, and if its owner comes do
not hide it from them since they have more right to it, and if the owner does
not appear then it is the wealth of Allah given to whomever He pleases” (reported by Ahmad with an authentic chain), and so
the lost property is owned by whoever found it if the conditions are met.
Fifth: the
recompense of the Khalifah, assistants, governors, and all other rulers.
It is narrated from the Prophet
that
when he appointed ‘Itaab Bin Usaid as a governor over Makkah, he
paid
him a dirham for each day. It is
narrated that ‘Itab addressed the people in Makkah and said “O people,
Allah starves the heart of a person who is hungry after spending a dirham, so I
have no need for anyone” (reported by Ibn Sa’d in al-Tabaqat
with a Mursal chain whose narrators are trustworthy). And it is narrated
that the day after Abu Bakr (ra) was given the pledge of allegiance, he went
out to sell clothes as he used to before taking the pledge, and so he met Umar
(ra) on the way who asked him “where are you going” to which Abu
Bakr (ra) replied “To the market”. So Umar (ra) asked him “And
what about the Muslims’ issues?” to which Abu Bakr (ra) replied “And
how will I feed my family?”. Umar (ra) then said “We will give to
you, and so they gave him half a sheep every day”, reported by Ibn Hajr
in Fath al-Bari, and al-Zayla‘i reported something similar in Nasab
al-Rayah. That was a consensus of the companions to recompense the Khalifah.
So this is the recompense for the Khalifah, governors, and ‘amil
which they then possess. Therefore it is from the causes of possession and it
is not a salary, so it is not categorised under the section of hiring an
employee.
These five circumstances are encompassed by
the fifth means from the means of ownership.
These evidences for the five means of ownership are
confirmed through investigation of the texts as being the only means of ownership. In which case they are the permission of
the Shari’ah for ownership, and anything other than these five means are from the means of increasing
property, such as trade, industry, agriculture, which are not means of ownership. With this explanation the evidences of the
article have been clarified.
Article 132
The disposal of property is restricted by the
permission of the Legislator (swt), for both of spending and investment. Squandering, extravagance and miserliness are all
forbidden. Capitalist companies, co-operatives and any other type of
transactions which contradict the Shari’ah are forbidden. Interest,
fraud, monopolies, gambling and anything similar are all forbidden.
The evidence for this is the evidence regarding spending
wealth and the evidence of verbal disposals of wealth such as
selling, renting and so on, which are the evidences regarding increasing
property.
As for the evidence of expenditure, Allah (swt) said “Let the rich man spend according
to his means” (TMQ 65:7).
Regarding the prohibition of squandering, Allah (swt) said “and do
not waste by extravagance, truly Allah does not love those who are extravagant”
(TMQ 7:31), and He (swt) said “but
spend not wastefully in the manner of a spendthrift; truly the spendthrifts are
the brothers of the devils” (TMQ 17:26-7).
With respect to the prohibition of miserliness, Allah (swt) said “And those who when they spend are neither extravagant nor miserly, but hold a medium (way) between those
(extremes)” (TMQ 25:67).
With respect to
verbal disposals, the Legislator
(swt) restricted them to specific transactions, such as selling, rent,
partnership, and so on, and specified the manner they should be undertaken and
prohibited any other method. The Prophet
said “Every
action which is not based upon our order is rejected” (reported
by Muslim from Aaisha
(ra)). So this is a restriction that the transactions have to be carried out
upon a specific method, and a clear prohibition of specific transactions, which
is that the transactions to increase wealth are restricted to that which is in
accordance with the permission of the Legislator (swt).
There are actions which have been ordered to be undertaken based upon a
specific restricted form, and the Shari’ah texts related conditions for
the concluding of a transaction and conditions for its validity in a decisive
manner. Therefore, to carry out this transaction upon the form that has been
explained by the Shari’ah text is obligatory, and it should fulfil all the
conditions for contraction and the validity that were mentioned in the Shari’ah text. If it was undertaken in a manner which contradicts the text or
does not fulfil all the conditions for contraction and validity, then it has
contradicted the Shari’ah, and it would either be invalid if the
conditions on contraction were not met, or defective if it contradicted
anything that the Shari’ah ordered or prohibited. This would be a
contradiction against the Shari’ah, in other words contradiction of the
orders and prohibitions of Allah
(swt), which is sinful since it is considered to be something that the Shari’ah
forbade.
An example of that is the Shari’ah contract:
the Legislator (swt) ordered that it should
be between two contracting parties; the Prophet
said “The
two traders have the choice” (agreed upon from Ibn Umar and Hakim Bin Hizam), and Allah (swt) said in a qudsi narration “I am the third of
the two partners” (reported by Abu Dawud from Abu Hurayrah, and
he authenticated it and al-Dhahabi confirmed it). And He (swt) ordered the contract to be upon
offer and acceptance. So if the contract in any transaction does not fulfil these
conditions: two contracting parties along with offer and acceptance, the
contract is invalid and not concluded. Any action which occurred
in this transaction is considered as a sin and a haram
action, since it would be considered a transaction that the Shari’ah had
forbidden. An example of that would be the share companies, since they are
concluded from one side, and by someone simply signing to the conditions of the
company they become a partner and also by simply buying shares in the company
they become a partner. According to the capitalists this is from the actions of
individual choice, like an endowment or bequest in Islam. So in the
share company there are not two contracting parties but rather there is only
one party, and there is no offer
and acceptance - rather
there is acceptance alone. In the Shari’ah the company must be based
upon a contract of offer and acceptance between two contracting parties, and
similar to it is selling, renting, marriage and any other comparable contracts.
Accordingly, the share company is not contracted and so is invalid and haram, since it contradicts the Shari’ah and is considered to be
prohibited by it. The share company neglected the order of Allah (swt) with respect to the
conditions of contracting a company, and is an action that Allah (swt) prohibited since He (swt) prohibited people from
contradicting His (swt)
orders, “And warn those who oppose his (the Messenger’s) orders” (TMQ 24:63). Therefore establishing such a company would be
committing a sin and a haram action, and so it is from the transactions
forbidden by the Shari’ah because every invalid contract is haram.
In a similar fashion, life insurance, or any insurance for goods or
property is haram,
since it is a contract between the insurance company and the insuring person in
which the latter asks the insurance company to give him a promise that it will
compensate him for that object which he loses or for its price with regard to goods or
property, or a certain sum of money with regard to life and the like such as
insurance for a limb. This takes place if the accident which was specified
occurs within a defined period in exchange for a certain amount of money. In
insurance there is no person being guaranteed, nor a joining of liabilities,
since there is no person present who the company guaranteed and joined their liability
to. Also in insurance there is no financial obligation for the believer with
anyone that the insurance company committed him to, since the believer did not
have a financial obligation to anyone, and then the company came and guaranteed
him. Insurance is a guarantee, and the guarantee according to the Shari’ah
is the joining of the liability of the guarantor with that of the one being
guaranteed to fulfil the obligation, and
so it is imperative that there should be a joining of liabilities, and
there must be a guarantor, someone being guaranteed, and the issue that he is
being guaranteed for, and it is imperative that it is a guarantee for a
confirmed obligation they are liable for. These are the conditions for
contraction and validity in the guarantee, and as long as the insurance
contract does not fulfil these Shari’ah conditions then it is invalid
according to the Shari’ah and is haram.
Therefore to take out insurance is committing a sin and a haram action and consequently is a transaction that the Shari’ah
prohibited because every invalid transaction is haram.
These actions such as partnerships and guarantees have been restricted
to a specific manner and specific conditions explained by Shari’ah texts,
and so it is obligatory to be bound to them, and this is proof that the actions
to increase property are restricted by the permission of the Legislator (swt).
There are actions which have had direct prohibitions related, such as
fraud, due to what was narrated from Abdullah Bin Umar (ra) that a man mentioned to
the Prophet
that he had been cheated in a
sale, so he
said “If you
buy and sell, then say no deceit” (agreed upon from Ibn Umar). And he
said “Selling
in the gathering is deceit, and deceit is not permitted for a Muslim” (reported
by Ahmad and Ibn Maja from Abdullah Bin Mas’ud, and Ibn Abi Shaybah and ‘Abd
al-Razzaq reported it mawquf (the
chain ends at the companion) to Ibn Mas’ud with an authentic chain). Accordingly fraud is haram. Also, actions like monopolising,
due to the words of the Prophet
“whoever
monopolises is wrong”, (reported by Muslim from
Mu’ammar b. ‘Abd Allah al-‘Adawi), and like gambling due to the words of Allah (swt), “O you who believe intoxicants and gambling and animals slaughtered for idols
and arrows used for seeking decision are an abomination from the handiwork of
the devil and so stay away from them in order that you may be successful” (TMQ 5:90). Similarly, interest, due to words of Allah (swt), “Allah has permitted trade and forbade interest” (TMQ
2:275). This clear prohibition for these actions
and those similar to them is a restriction upon how to conduct the increase in
property, as it should not be done through these and similar transactions. This
is another evidence that the action to increase property is restricted by the
permission of the Legislator (swt).
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