BASIC CONCEPTS OF PROPERTY UNDER ISLAMIC LAW
Under Islamic jurisprudence, a number of legal maxims have been provided in relation to propriety interests in goods and in land. These include the principle of taslit (control) and la-dharar (the principle of no harm).
The principle of taslit provides that owners of land and personal property have absolute authority and control over using and alienating their proprietary interests. However, based on the principle of la-dharar, individuals shall not cause damage or harm to others, or the interests of other people, when using and utilising their property. The use, possession, and alienation of property is well protected under Islamic law, but is the subject of some limitations, particularly based on the principle of no harm, which is a similar principle based in other modern legal systems, such as the common law.Under Islamic law, there are a number of key concepts of property law that lay down the basic principles of Islamic property law. These include mal (concept of property), milk (relationship with a thing), malikiat (ownership), mawat (vacant land) and rahn (mortgage).
Mal generally refers to things of real property and its interests, such as land and easements, or personal property, such as jewellery and domestic animals. The word mal is Arabic. In legal terms, it can be interpreted as any thing that can be the subject of legitimate ownership in Islam.[593] Islamic jurisprudence texts do not specifically define mal; however, examples have been provided for the concept of mal. Not everything can become the subject of mal under Islamic law; only things that are legitimate, useful, and have commercial value can be defined as mal. Many Islamic scholars have left the definition of mal to the urf (custom) of each society to determine.[594] It is difficult to find an equivalent term or concept under the common law system that corresponds to a similar definition under Islamic law, as property is held not to be a thing under common law, but is instead described as a legal relationship with a thing.[595] Whereas, under Islamic law, mal means a thing that can be the subject of legitimate ownership and has commercial value. This means things that cannot be the subject of legitimate ownership, such as wine and pork, are not mal.
Also, things that do not have commercial value, such as a handful of soil, may not be considered as mal under Islamic law.On the other hand, milk refers to the control and possession of things by a person. Thus, the term is very similar to the concept of ownership. In other words, any thing that is under the control and possession of a person, even if the thing does not have any commercial value, is considered as milk. Perhaps the common law definition of property, as a legal relationship with a thing, as held by the High Court of Australia in Yanner v Eaton,[596] is more closely associated with milk than with mal.
The distinctions between milk and mal have some practical relevance, particularly in the modern world. For example, people have control and possession over their body parts and, therefore, body parts are considered to be milk. However, since selling body parts may not be considered legitimate, the body parts would not be considered as mal. Selling and buying body parts is a new topic that is the subject of extensive debates in Islamic jurisprudence (fiqh). According to some Islamic jurists, body parts are not mal and, hence, cannot be the subject of commercial transactions.[597] However, according to some other Islamic jurists, since people have control over their body parts, consistent with the urf of modern societies, they must be able to alienate their body parts for commercial consideration, as long as there is no prohibition under Shari’ah.[598]
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