THE PLACE OF PROPERTY LAW UNDER ISLAMIC JURISPRUDENCE
Islamic law regulates the property rights. In other major legal systems, such as common law and civil law, property, particularly real property, has occupied a significant place in the legal system.
In both civil law and common law, as well as Islamic law, property is a principal subject matter of law. Further, the concept of property is considered significant in modern legal theories, such as natural law and positivism. Under natural law theory, property is considered a natural right, and according to legal positivists such as Jeremy Bentham, ‘property and law are born together and die together’.[599] Property and land have always generated wealth and been subject to commercial transaction in the West, and to a lesser extent in the Muslim world. However, in recent years, intellectual property is becoming increasingly significant in modern economies and international investment sectors.Although property ownership and interests in relation to land, including water and minerals, have been subject to legal principles under Islamic law, there is no distinct area of property law under classical Islamic jurisprudence (fiqh). Classical Islamic law texts cover chapters and sections on proprietary interests such as kharaj (taxes), hibah (gifts), wasyat (wills), zakat (a special tax), dafinah (treasure troves) and sherkat (partnership). Legal principals relating to personal property and real property can be found in several other areas of law, such as commercial law, inheritance law, Islamic law of partnership, the law of mortgage (rahn), and taxation law. In sources of Islamic law, notably the Qur’an and the Sunnah, general principles of Islamic property law can be found. In some classical textbooks on Islamic jurisprudence, ownership of land and other real property interests are discussed under the area of ahya-mawat (reviving of dead land).[600] According to some schools of law, such as the Hanbali school of jurisprudence, the area of property law is classified under the category of siyar. The siyar in this context is taken as the conduct of an Islamic government in its relationship with nonMuslims, which in modern terms, can be considered as some kind of Islamic international relations. Given that at earlier stages of the advent of Islam, Muslim armies conquered large areas of land from nonMuslims in Asia and Africa, land law and taxes relating to property and land became a part of siyar.[601]
IV.