PUBLIC OWNERSHIP v PRIVATE OWNERSHIP UNDER ISLAMIC LAW AND IRANIAN LAW

Islam has recognised the private ownership of land and other types of property. It has also provided commercial benefits for land and property. Although certain types of property, such as pork, alcohol, and other illegal goods, have no proprietary values, property interests in land and goods are generally accepted under Islamic law.

Nevertheless, in the history of Islamic societies (particularly Iran), individualism, individual rights and identities were not prevalent com­pared to the rights of the community. Hence, private ownership is not strong when compared with public ownership by the states and by tribes and communities. As a result, in practice, the private ownership of land in farming and agriculture had not been very strong. States, whether the Caliphate or other governments ruling the Middle East, particularly in Iran, have arbitrarily confiscated lands and disposed it as they wished. Unlike Europe, strong private ownership of land in the Middle East and in Iran did not develop at any stage in history. A few periods were an exception to this, such as during the Samaman dynasty.^[602] Major owners of the land included the state, tribal leaders and powerful individuals known as khans were the major land holders.

In recent times, particularly during the late twentieth century, there have been debates and discussion in the Muslim world in relation to the status and limitation of private ownership under Islamic law. During the 1950s and 1960s, when communism, socialism and leftist political views influenced the Muslim world, including countries such as Libya, Algeria, Indonesia, Iraq, Syria and Afghanistan, there were discussions as to the position of Islamic law in relation to the recognition of private and public ownership of property. Some Muslim intellectuals and scholars argued that public ownership of property is the main principle of ownership under Islamic law. They would cite certain principles from original sources of Islamic law, such as the Qur’an and the Sunnah, in making their arguments in favour of public ownership of property.^[605] Some other Muslim jurists argued that Islam recognised limited private ownership, but rejected the capitalist theory of private ownership.^[606]

However, according to the majority of Islamic jurists and scholars, as well as the practice of Islamic states throughout history, Islam has acknowledged and recognised private ownership and has protected prop­erty rights of individuals in very strong terms. Private ownership is recognised in various verses of the Qur’an.^[607] According to Ghazzali, a famous Muslim jurist of the eleventh-twelfth centuries, the purpose of Shari’ah is to protect the life, private property, mind, religion, and the offspring of people.^[608]

Under Islam, there are three types of ownership: absolute ownership of God, public ownership of the state, and private ownership.

The absolute ownership of land and other property by God may resemble the doctrine of tenure that underpins the modern land laws of common law systems, such as Australia. This means that under Islam, the real owner of land is Allah and individuals own land and other property on behalf of God. Therefore, private ownership of property in Islam is similar to common law systems. However, the absolute ownership of property by Allah does not give an Islamic state the same rights of ownership that the Crown had under English common law and Australian common law, based on the doctrine of tenures.^[612] Islamic law provides a legal framework for recognition and protection of private property rights and remedies and sanctions for individual proprietary interests.^[613]

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