INTRODUCTION
Property law, particularly land law, is one of the classical areas of Islamic law. Basic principles of Islamic property law can be found in the Qur’an and other sources of Islamic law.
The legal system of the Muslim world, particularly before the establishment of modern independent nation states in the nineteenth century, was based on general principles of Shari’ah. Indeed, in most modern Muslim countries the principles of land law and the waqf are based on Islamic law. In Iran, land ownership and interests in land are regulated by the Iranian Civil Code (1928), which has adopted modern principles of European land law that is blended with principles of Shari’ah. However, the law of waqf is almost entirely based on Islamic law.Private land ownership is well recognised under Islamic law. Further, public ownership of certain land by governments and public institutions is also recognised. A number of land interests recognised in modern legal systems, such as easements, mortgages, restrictive covenants and leases are also recognised and regulated under traditional Islamic law. However, the Iranian legal system has adopted some modern legal principles in relation to these land interests that are arguably consistent with principles of Islamic law.
The main sources of property law and the law of waqf in Iran are fiqh (Islamic jurisprudence), the Iranian Constitution, the Civil Code of 1928 and other relevant legislation and by-laws. The significance of property law in Iran is a notable distinction between practice and theory. While fundamental sources of property law are based on Islamic jurisprudence texts, the Constitution, and the Civil Code, property law is regulated in practice by a large number of government decrees, local councils (Shahrdariha), the Department of Registration (Sazman Sabt v Asnad), as well as many other parliamentary acts and decrees of different government departments, including the judiciary.
Unlike countries with common law legal systems, case law is not as relevant in Iran. However, in exceptional circumstances when there have been different decisions on similar facts by courts, the Department of the Iranian Judiciary (Divan Ali Keshvar) may make a decision that will be binding for all the courts.Apart from fundamental principles of law based on Shari’ah and fiqh, the Constitution and the Civil Code, another significant feature of Iranian law is that other sources of property law, such as decrees of different departments and the judiciary, are not easily and publicly available. Most of these provisions are not subject to much academic discussion, but are known to relevant institutions and departments as well as some practising lawyers who work in the area of property law. Therefore, most of the available literature on property law and commentaries simply discuss some general principles of property law, in fiqh and modern law, without investigating and analysing relevant practical issues. In addition to this, the amount of literature on property law is very limited, both on real property and personal property. The available scholarship on Iranian property law is brief, descriptive, theoretical, and lacks any critical analysis.
Further, Islamic jurisprudence has not allocated a distinct area or systematic field to land and property law. In Islamic textbooks on jurisprudence there are sections (known in Arabic as kitab) on certain proprietary interests, such as leases, gifts, wills, treasure troves, and land taxes. However, there is no specific chapter on land law or land ownership.
This chapter discusses property law and waqf under Iranian law and Islamic law. Given that Iranian law is predominantly based on Islamic law, the first section will analyse concepts of property law, particularly land law, under Islamic law and Islamic jurisprudence (fiqh). Protection of private ownership under Islamic law, as well as the nature or public ownership and key concepts of property law, will be analysed. This provides the basis for a discussion on the general principles of property ownership under the Iranian Constitution, as well as the relevant provisions of the Iranian Civil Code, which is almost entirely based on Islamic jurisprudence (shia). In addition, some important aspects of property ownership, such as ownership of minerals and intellectual property under Iranian law, will be discussed. Finally, the Islamic institution of waqf, known under common law as trust, under Iranian law will be reviewed.
II.