Quotes from the Ancients, Scriptural and/or Religious
We welcome additions of quotes and viewpoints on land ethics and policies from all religions of the world. Please send material using the contact form
Moses, says the Bible (Leviticus
25:23), heard Jehovah say circa BC 1400:
The land shall not be sold forever; for the land is
mine; for ye are strangers and sojourners with me. (King James
No land shall be sold in
perpetuity, because the land belongs to Me and you are lodgers and tenants with
Me. (Modern Language)
And remember, the land is mine,
so you may not sell it permanently. You are merely my tenants and
sharecroppers! (Living Bible)
The land shall not be
sold in perpetuity, for the land is mine; for you are strangers and sojourners
with me. (Revised Standard)
Restore, I pray you, to them even this day, their
lands, their vineyards, their olive yards, and their houses, and also the
hundredth part of the money, and of the corn, the wine, and the oil, that ye
exact of them. (King James Version)
Restore today, I earnestly ask of you, their
fields, their vineyards, their oliveyards and their houses, as well as the
hundredth part of the money, the grain, the new wine and the oil which you have
exacted from them. (Modern Language)
Restore their fields, vineyards, oliveyards, and
homes to them this very day and drop your claims against them. (Living Bible)
Return to them this very day their fields, their
vineyards, their olive orchards and their houses and the hundredth of money,
grain, wine, and oil which you have been exacting of them. (Revised Standard)
Moreover the profit of
the earth is for all. The king himself is served by the field. (King James Version)
After all, a king
devoted to the field is an advantage to the land. (Modern Language)
And over them all is
the king. Oh, for a king who is devoted to his country! Only he can bring forth
order from this chaos. (Living Bible)
But in all, a king
is an advantage to a land with cultivated fields. (Revised Standard)
Woe unto them that
join house to house, that lay field to field, till there be no place, that they
may be placed alone in the midst of the earth! (King James Version)
Woe to those joining house to house, who unite field to
field until there is no more room; you shall be made to live alone in the
middle of the land. (Modern Language Version)
You buy up property so others have no place to live.
Your homes are built on great estates so you can be alone in the midst of the
earth! (Living Bible)
Woe to those who join house to house, who add field to
field, until there is no more room, and you are made to dwell alone in the
midst of the land. (Revised Standard)
The ancient rabbis in
their discussions about the finer and little known details of Jubilee.
discussions considered how fairly to partition the land of Canaan among the
tribes under Joshua. Those with poorer land were to be given more acreage and
those with more fertile land would be given less. As for land disadvantageously
situated, the adjustment was to be made by money; that is to say, those holding
land nearer the city (Jerusalem) should pay into the common treasury the
estimated excess of value pertaining to it by reason of its superior situation,
while those holding land of less value, by reason of its distance from the
city, would receive from the treasury a money compensation. Upon the more
valuable holdings was to be imposed a tax, or lease fee, the measure of which
was the excess of their respective values over a given standard, and the fund
thus created was to be paid out in due proportions to those whose holdings were
in less favorable locations. In this, then we see affirmed the doctrine that
natural advantages are common property, and may not be diverted to private
See also an essay by Solomon Solis Cohen, The Land Question in the
(Roman, BC 162? -133):
private soldiers fight and die to advance the wealthy and luxury of the great,
and they are called masters of the world, while they have not a foot of ground
in their possession.
(Roman naturalist, 23-79), concluded,
monopoly ruined Rome.
(384-322 BC) wrote that in the 7th century
the whole land (of Attica) was in the hands of a few, and if the
cultivators did not pay their rents, they became subject to bondage...
(The Constitution of Athens)
The earth of which they are born is common
to all and, therefore, the fruit that the earth brings forth belongs without distinction to all.
Those who make private
property of the gift of God pretend in vain to be innocent. For, in thus
retaining the subsistence of the poor, they are the murderers of those who die
every day for the want of it.
How far, O ye rich, do you push your mad
desires? Shall ye alone dwell upon the earth? Why do you cast out all the
fellow sharers of nature and claim it all for yourselves? The earth was made in
common for all. Why do you arrogate to yourselves, exclusive right to the soil?
St. George the Great:
590 - 604) rebuked the Romans when he said:
They wrongfully think they are
innocent who claim for themselves the common gift of God.
Clement of Alexandria:
functions of property) -to be shared, to minister to
and serve the welfare of all; not for personal advantage as
being entirely one's own but for those in need; to
achieve autarkeia and to foster koinonia - constitute the
very essence of Clement's view of property.
St. John Chrystostom:
in the beginning did not make one man rich and another poor; nor did he
afterwards take and show to anyone treasures of gold, and deny to the others
the right of searching for it; rather he left the earth free to all alike. Why
then, if it is common, have you so many acres of land, while your neighbor has
not a portion of it?
(according to Avila's research) saw that the poor are poor because they have
been deprived by the propertied few of the wealth that should belong to all. He
laid the blame for this unjust situation squarely on the doorstep of an
absolutist and exclusivist legal right of private ownership. He reminded his
audience that they were all made from one mud and sustained
on one earth under the same natural conditions, having the same
essence and called to the same destiny. He rejected the legalized status quo as
inappropriate for human living. Holding that legal arrangements of property
rights were of human origin, he asserted that they should be changed, in theory
and in practice, in function of a faith-informed ethic based on the true
meaning of ownership.
Basil the Great:
saw that a privileged few were exceedingly rich, ostentatious, and powerful,
inasmuch as wealth, particularly the wealth-producing resource, land, was
concentrated in the hands of the few. He taught a philosophy of ownership based
on the view that God was Father and giver and Provider for all, and that
therefore a few must cease stealing the food-producing resources that God had
destined for the use of all.
admits a certain right of laborers to the product of their labor but asks the
landlords by what right they exercise ownership over their vast estates:
Which things, tell me, are yours? Whence have you brought them into
being? Whatever you have produced, or brought into being, may justly be
yours. However, it is land that has made the landlords rich, and land is not
something they have brought into being. Speaking to the rich Basil said:
are like one occupying a place in a theatre, who should prohibit others from
entering, treating that as one's own which was designed for the common use of
all.... If each one would take that which is sufficient for one's needs,
leaving what is in excess to those in distress, no one would be rich, no one
poor. Did you not come naked from the womb? Will you not return naked into the
Jesus pointed to Old Testament teachings regarding land
ethics. According to some contemporary theologians, one of the tasks of the
mission of Jesus was to restore the original intent of the Jubilee. In Luke
4:18 (by way of Isaiah 61:1-3): He has anointed me to preach good news to the
poor… to proclaim release of captives… To set at liberty those who are
oppressed, to proclaim the acceptable year of the Lord.
Pope Paul VI said in Mexico in 1979:
There is always a social mortgage on all private
property, in order that 'goods may serve the general purpose that God gave
them. The land is held in stewardship for humanity.
Pope John Paul II said in Brazil in 1991:
high concentration of land ownership demands a just agrarian reform. It has no
justification whatsoever. In Brussels in 1985 he said: It is
only fair to revise the distribution of income and to control the revenues from
speculations and investments which do not proceed from labor.
The land is a gift of
the Creator to all men and therefore its richness cannot be distributed among a
limited number of people while others are excluded from its benefits. - Pope
John Paul II, Bahia Blanca, Brazil, 1986
intended the earth and all things in it for the use of all peoples, in such a
way that the goods of creation should abound equitably in the hands of all,
according to the dictate of justice, which is inseparable from charity. - Pastoral
Constitution on the Church in the Modern World, Vatican II
right of land ownership and of free bargaining in land are subordinated to the
fundamental right of man to obtain the necessities of life. In the force of the
fundamental claim of the Commonwealth there is no unconditional right of land
ownership. - Pope Paul VI, Populorum Progressio, 1967
man, as a living being gifted with reason, has in fact from nature the
fundamental right to make use of the material goods of the earth. - Pope Pius
creation is the Lord's and we are responsible for the ways in which we use and
abuse it. We believe that Christian faith denies to any person or group of
persons exclusive and arbitrary control of any other part of the created
without land or without any control over the value of land lack security in a
major dimension of their lives. - National Bishops General Convention, Action
Proposal for Economic Justice, 2/22/88
great deal of what is amiss alike in rural and in urban areas could be remedied
by the taxation of the value of sites as distinct from the buildings erected
upon them. - William Temple, a former Archbishop of Canterbury, in Christianity
and Social Order
insists that we cease levying taxes on the fruits of human toil, and make the
monopoly value of land be the exclusive basis of taxation. - Episcopal Bishop
Martin Luther King, Jr. -
I am sure that each of
you would want to go beyond the superficial social analyst who looks merely at
effects and does not grapple with underlying causes. True compassion is more than flinging a coin to a beggar; it
understands that an edifice which produces beggars needs restructuring. - Letter from Birmingham City Jail
approach to the problems of poverty and racism will cause us to see the words
of the Psalmist - The earth is the Lord’s and the fullness thereof
- are still a judgment upon our use and abuse of the wealth and resources with
which we have been endowed. - A Testament of Hope: The Essential Speeches and Writings of Martin Luther King Jr., pp 629-630.
Theologian Charles Avila, in his profoundly important book entitled "Ownership:
Early Christian Teachings, "explored the early church fathers' view of
property rights in land. He contrasted these teachings to Roman property rights
law. In his chapter on The Concept of Ownership Avila states:
concentration of property in private hands began very early in Rome and was
indeed based on the foundational and legitimizing idea of absolute and
exclusive individual ownership in land. This was the same idea which would come
to form the basis of the slave-owning, the feudal, and the capitalist
(including the pseudo-socialist, or state-capitalist) economic systems
successively. Modern civilization has not yet discarded this antiquated
ownership concept, which was originally derived from ancient Rome. In fact, it
seems to us, this is one of the main roots of the present global crisis, in
which the rich become richer because the poor become poorer. - Charles Avila, "Ownership: Early Christian Teachings",
Orbis Books, Maryknoll, 1983 p. 8
Avila further noted
that the distinction in legal terminology between real and
personal property is the survival in words of an ancient real
distinction between property held in both theory and practice as common by its
very nature and property which was the fruit of one's labor. Avila said
that modern social thinkers:
the promotion of social justice without stopping to think that individual
ownership of nature's bounty might be socially unjust in itself. And yet
patristic thought insisted long ago that there can be no real justice, or
abolition of poverty, if the koina, the common natural elements of production,
are appropriated in ownership by individuals.
Theologian John B. Cobb, Jr. with Herman Daly in "For The Common Good" (1989):
(Henry George's) specific proposal about taxation can be supported on the
basis of a shared rejection of the idea of land as only a commodity... Since
this tax would rise as the value of the land rose, or would fall as it fell,
there would be no basis for speculation in land... farmers would have no reason
to oppose zoning that kept taxes on agricultural lands appropriate to the
profits that can be realized from farming... Whereas a higher tax on buildings
encourages holding land unused or allowing buildings to deteriorate, a higher
tax on land encourages efficient use of the property.
Theologian Walter Brueggeman explains in "Land: The Foundation of Humanness":
The acceptable year is the year of the Jubilee when the land was to
be returned to the original holders. The release of captives is the
release of debt slaves who had lost their land because they could not pay the
mortgage. A crucial aspect of Jesus' mission was the reassertion of the land
rights of the poor and displaced.
Father Matthew Fox, founder of creation spirituality, in "A Spirituality Named
Compassion" (1979) said:
Henry George sees his movement as an alternative... By taxing land more than we do and in a special way, we will be able to tax work and income derived from it considerably less...
ISLAMIC PERSPECTIVES – Two Articles
Land Reforms - Absentee Landlordism
Land Reforms - Absentee Landlordism
Abid Ullah Jan
With Mr. Nawaz Sharif once again becoming Prime Minister of the country, the nation, more or less, has been witnessing the same thing as that of Ms. Benazir Bhutto, ex-Prime Minister, in the matter of enforcement of Shari‘ah as laid down in the Book of Allah (SWT) and Sunnah of the Holy Prophet (SAW). There is enough material in evidence to prove the lack of political will to enforce the supremacy of Qur’an and Sunnah in Pakistan. In fact, there has been lack of the courage of faith in Allah (SWT) and His Prophet (SAW) to stand against the dominance of the West in this respect.
However, despite all the difference of opinion between me and Mr. Nawaz Sharif in the process of Islamization, which I had closely witnessed and personally experienced as Chief Justice of the Federal Shariat Court during 1990-92, I wholeheartedly welcome his move to take over possession by resumption of 1.25 million acres of land, from illegal occupants, identified as being the land in excess of the ceilings of land holdings fixed by the Land Reforms Regulations of 1972 and the Central Act 2 of 1977 and distribute the same among landless peasants.
Not only that, Mr. Nawaz Sharif, in his address to the nation on June 11, 1998, also announced, though by a sketchy indication, for taking over possession of land from those feudal lords, jagirdars and zamindars (of Punjab), waderas (of Sindh), the sardars (of Baluchistan), and khawaneen (of NWFP) who got the land as reward from the British rulers (or as bribe from the past governments) in consideration of their services rendered by them or their ancestors, to strengthen the British Raj over the Indian Subcontinent, bartering the interests of the Muslims and hatch conspiracies against the Muslim Rule of India.
The first Constituent Assembly of Pakistan — which was also performing the function of federal legislature and whose first leader of the House was also the first Prime Minister of Pakistan, Shaheed-e-Millat Liaqat Ali Khan — passed a Resolution in or about 1950, whereby the provincial governments of East Pakistan, Punjab, N.W.F.P., Sindh, and Baluchistan were urged to take steps for abolition of Jagirdari/Zamindari system from their respective provinces. The Provincial Assembly of East Pakistan passed a law whereby necessary steps were taken to abolish the Jagirdari/Zamindari system from East Pakistan. In consequence, the Jagirdar/Zamindar, as a class, was no more an effective power in the political arena of East Pakistan (now Bangladesh) and the middle class was able to get entry into politics and wield power. This was evident from the provincial elections in East Pakistan held in 1954 wherein Jugtoo Front was able to capture thumping majority in the Assembly, so much so that even late Noor-ul-Amin, the Chief Minister of East Pakistan, and a senior Muslim League leader, was defeated by a student.
On the other hand, N.W.F.P., Sindh, and Baluchistan took no step in the direction of abolition of Zamindari System. Only the Punjab Provincial Tenancy Act of 1887 was amended which proved to be of no consequence so far as the Zamindari system was concerned. It may be added that the first Chairman of the Pakistan Planning Commission, late Zahid Hussain — who was also the first Governor of the State Bank of Pakistan — in his report on the first Five Years Plan had opined that it was necessary to abolish the Jagirdari/Zamindari system for strengthening the economic, political, and democratic system in the country.
In India, by passing of the Abolition of Zamindari Act, 1953, all the Zamindaris and Jagirdaris (including over five hundred states of Jagirdars and Nawabs) were abolished, except that Khud Kasht/Seer, under self cultivation to the extent of about 16 or 17/30 acres, all the lands were resumed by the Government of India. Zamindars were issued Money Bonds in consideration of the lands resumed, payable in eight equal yearly installments. These Bonds were made negotiable and transferable in open market. This Abolition of Zamindari Act of India 1953 influenced a great deal the political climate of the country. Democracy was strengthened and the country became self-sufficient in food in about a decade.
In Pakistan, “Land Reforms” has been a soaring subject. No elected Government, so far, could dare to go against the interests of the Feudal Lords as they formed and still form majority or at least have a sizeable number in the National Assembly as well as in all the Provincial Assemblies. The first step was, however, taken by Gen. Mohammad Ayub Khan under the cover of Martial law by promulgating M.L.R. 64 in 1959 for resumption of land for distribution among landless peasants, by setting the ceiling of land at 500 acres for irrigated land and 1000 acres for un-irrigated land. This ceiling was, in fact, very high; nevertheless, all kinds of leases were exempted from the operations of M.L.R. 64. According to Shaikh Rashid of Pakistan People’s Party, the said law reform was merely an eyewash.
In 1972, Z. A. Bhutto — who took reins of power from Gen. Yahya Khan in December 1971 after the debacle of East Pakistan — appointed his own-self as President and Chief Martial Law Administrator of Pakistan with the connivance of Army Generals who felt demoralized for unprecedented defeat in the entire Muslim history. Bhutto promulgated again under the cover of Martial Law, Land Reforms Ordinance 1972 (Martial Law Regulation 115) whereby a land-owner could retain up to 150 acres of irrigated land and 300 acres of un-irrigated land. Later on by Act 2 of 1977 the ceiling of irrigated land was reduced to 100 acres, but the laws were not enforced in their true spirit, perhaps due to political pressure, deceit, maneuverings, and undue influence of all concerned.
In 1979, Gen. Zia-ul-Haq promulgated an Ordinance whereby Shariat Benches were constituted in all the four High Courts and the Supreme Court of Pakistan; 67 Shariat petitions were filed in 1979-80 challenging the M.L.R. 115 and the law reforms Act 2 of 1977 before the said Benches. After about 15 months, the Federal Shariat Court was constituted on June 26, 1980. The FSC started hearing of these petitions in right earnest in August 1980 and after hearing very long arguments of all the parties, a detailed judgement was pronounced by it on December 13, 1980.
The majority judgement of Federal Shariat Court (Mr. Justice Karimullah Durrani, contra) in Muhammad Ameen Vs. Islamic Republic of Pakistan (P.L.D. 1981 F.S.C. 23) held that the 1973 Constitution takes away power of the Court to declare invalid laws providing for acquisition of any class of property for certain purposes and fixing limits as to the ownership of property notwithstanding any provisions having not been made in such laws for payment of compensation. It was thus observed that things declared valid by Constitution can not be declared invalid or bad by Courts, nor can the Court declare any provision of Constitution as repugnant to Islamic injunctions. Declaration of repugnancy with Shariah of the provision of law placing ceiling on ownership or reducing same amounts to declaration of such constitutional provisions as bad which declare such law either valid or untouchable by the Courts. What cannot be done directly cannot also be done indirectly. Thus, the ceiling placed on property validated by Article 253 of the Constitution and Land Reforms Regulation 1972 and Land Reforms Act 1977 were held to be immune from challenge to such extent in courts including Federal Shariat Court.
The Federal Shariat Court, however, by majority judgement (Mr. Karimullah Durrani contra) held that even otherwise on merits the provisions relating to fixing ceiling of land and taking over the land by governments in excess of such ceiling were not repugnant to the injunctions of Islam. (For details, see PLD 1981 FSC 23).
In Appeals by the Petitioners in 1981 and few others the matter was taken up by the Supreme Court Shariat Appellate Bench which held by its majority judgement, after about nine years, on August 10, 1989, made effective from March 23, 1990. (Mr. Justice Nasim Hasan Shah, contra) that “prescription of maximum ceiling of land-owner’s holding was un-Islamic. It was thus held by the Supreme Court that the Provisions of the Land Reforms Regulation of 1972 and the Land Reforms Act of 1977 whereby the maximum holding which a landowner could own and provision for the vesting of all land in excess of the aforesaid ceiling in the Government were invalid and the restrictions were repugnant to the injunctions of Islam.
In accordance with the opinion of the majority, it was held that following provisions of the Regulation, the Act and the Punjab Tenancy Act 1887 to the extent indicated against each, are repugnant to the Injunctions of Islam:
1. - “Paragraph 2 clause (7) of the Regulation (which defines the term “person”) in so far as it includes Islamic Wakf for the purposes of other paragraphs of the Regulation which are being held wholly or partly repugnant in injunctions of Islam.
2. - The whole of Paragraph 7 (declaring void transfers of land or areas in excess of 150 acres held by a land-owner), 8 (fixing a ceiling of 150 acres as the maximum holding of an individual), 9 (surrender of Shamilat land or share in Shamilat in excess of maximum holding of 150 acres), 10 (fixing maximum of 100 acres of civil servants), 13 vesting of excess land in Government) and 14 (resumption of land obtained in exchange of land allotted in the border area) and consequentially paragraph 18 (land granted to tenants out of the excess land vested in Government) of the Regulation.
3. - Paragraph 15 (dealing with stud and livestock farms), 16 (dealing with Shikargahs), 19 (dealing with utilization of land under orchards, studs or live stock farms) and 20 (utilization of land under resumed Shikargahs) in so far as they ignore the rights and obligations, the terms and conditions of the grant, lease, as the case may be, in resuming the stud and livestock farms, Shikargahs and Orchards and dealing further with them under Paragraphs 19 and 20 thereof.
4. - Paragraph 17 of the Regulation (relating to religious charitable and educational societies) in so far as it relates to Wakf and all other institutions which can validly fall within the definition of Islamic Wakf, and consequential to that extent paragraph 21 (which relates to utilization of land resumed from religious, charitable and educational societies also.” (Qazalbash Waqf’s Case PLD 1990, S C, 99).
It may, however, be stated that the Supreme Court’s findings are based on the assumption that the ownership of the landlords on all fours was legally valid. Legally, the Shariat Appellate Bench could not go into the factual questions of and mode of the acquisition of ownership, whether valid or not in the eye of Shari‘ah. Thus the Government is likely to face difficulties in resuming the land under the provisions of MLR 115 and Act 2 1977 as announced by the Prime Minister Nawaz Sharif, in view of the above findings of the Supreme Court, unless possession has already been taken over by the Government prior to March 23, 1990. Or the Government files a Review Petition against the said judgement in the Supreme Court and is able to obtain an order in its favor, or make suitable amendments in the Constitution to overcome the said difficulties. However, there seems to be no impediment in setting up a high powered National Commission for Lands with some knowledgeable person to head the same, to make country-wide inquiries and investigations as to the mode of acquisition of the lands by the landlords and their predecessors-in-interest, whether valid or not in the eye of Shari‘ah. The Supreme Court has also observed about the formation of a Commission in its judgement (see PLD 1990 S.C., 99, p. 263).
And now to conclude, here is a very important point: The terms of reference for the above said Commission may include to inquire into the legal position in the light of Shari‘ah, about the status of land or creation of Pakistan whether the land was Kharaji or Ushri? In case the Commission gives a finding that on August 14, 1947, the status and nature of the agricultural lands, within the territory of Pakistan, was Kharaji, the land will be treated as State-owned, and the problem will stand solved. Only the necessary amendment in the Constitution will have to be made and new law shall have to be enacted accordingly.
A most pertinent question that is being agitated in Pakistan print media in relation to our agricultural economy is that of “Absentee Landlordsim,” which has proved itself to be the greatest impediment to our agricultural progress and development.
This has given birth to another question whether agricultural land can be leased out against specified rent or against a fixed part of the produce of land, or against a fixed sum of money. This question, in fact, dates back to the early formative period of Islam. There are found two divergent views as emerged out of interpretation of ahdith on the subject known as muzara‘ah, (lease of bare land for a certain part of its produce) which has been discussed in detail in almost every compilation of ahadith and every authentic book on fiqh, in separate chapters to denote its importance.
According to the first point of view, muzara‘ah is invalid in Islamic Law. Imam Abu Hanifah, Imam Auza‘i, and Imam Ibn Hazam hold this view. They maintain that if the landlord gives to the tenant bare land for one-third or one-fourth of the produce, it is a case of hazard, chance, or risk, as the crop sometime is abundant and sometime it fails.
This point of view, which invalidates any lease of agricultural land under the Islamic law, is reported to be based on various marfu‘ ahadith — traditions whose chain of transmission is directly linked to the Prophet (SAW). Following are the main traditions in this respect, as quoted in Landlord and Peasant in Early Islam by Dr. Ziaul Haque (Islamabad, 1977):
1. - Jabir (RAA) says that the Prophet (SAW) said: One who owns land must cultivate it himself, or bestow it free, i.e., lend it to another person to let him cultivate it. If he does not do this, he must retain his land. (Sahih Muslim, Kitab Al-Buyu‘)
2. - Jabir (RAA) says that the Prophet (SAW) prohibited lease of land against any rent or part of land’s produce. (Ibid.)
3. - Abu Al-Najashi, mawla (client)of Rafi‘ bin Khadij (RAA) reports that Rafi‘ bin Khadij says that Zuhayr bin Rafi‘, his uncle, said that the Prophet (SAW) had forbidden them from a matter which was very beneficial for them. Rafi‘ asked him about this matter, saying that whatever the Prophet (SAW) had said must be right. Zuhayr said that the Prophet (SAW) had asked him as to what they were doing with their agricultural lands. He told the Prophet (SAW) that they were leasing them against whatever grew on the rivulet or the streamlet; or against camel loads of dates or barley. The Prophet (SAW) thereupon forbade them saying that they should cultivate their lands themselves, or they should let some other people cultivate them (free of charge), or they must simply withhold the lands. (Ibid.)
4. - Nafi‘ (RAA) stated that Abdullah bin Umar (RAA) used to lease his land. Ibn Umar went to see Rafi‘ (RAA) to ask him about the problem of land lease, and he (Nafi‘) also accompanied him. When Ibn Umar asked him about the problem, Rafi‘ replied that the Prophet (SAW) had banned it. (Ibid., another variant in Sahih Bukhari)
5. - Abu Hurayra (RAA) said that the Prophet (SAW) declared: One who owns land must till it himself or give it free to his brother, or otherwise he must withhold it. (Sahih Muslim, Kitab Al-Buyu‘ and Sahih Bukhari, Kitab Al-Ijarah)
6. - Abu Sa‘eed Al-Khudri said that the Prophet (SAW) had banned muzabana and muhaqala. He explained that muhaqala was lease of land. (Sahih Muslim, Kitab Al-Buyu‘)
7. - Abdullah bin Umar (RAA) said that the Prophet (SAW) prohibited lease of land. (Ibid.)
Ibn Hazam says that all these Companions (RAA) transmit the categorical ban on lease of land. This is tantamount to tawatur, the transmission of ahadith on the authority of numerous Companions (RAA) about whose reliability a presumption is attached that they all cannot tell lie. For detailed discussion, see Nizam-i-Zamindari aur Islam by Maulana Muhammad Tasin (Majlis-e-Ilmi, Karachi)
On the other hand, a majority of jurists hold a different view. According to them, muzara‘ah is legal and permissible against a certain part of its produce, cash or kind. The jurists rely upon the following ahadith in support of justification for the practice of muzara‘ah. They have been recorded in Sahih Bukhari and Sahih Muslim and other standard compilations of ahadith.
1. - Nafi‘ bin Umar (RAA) says that the Prophet (SAW) made an economic transaction with the farmers of Khaybar with the stipulation that they would pay half of the produce of grain and fruit. (Sahih Bukhari, Kitab Al-Muzari‘ah)
2. - Abdullah bin Umar (RAA) says that the Prophet (SAW) gave Khaybar to the Jews on the condition that they would cultivate it and work on it, and would get half of the produce. (Ibid.)
3. - Nafi‘ bin Umar (RAA) says that the Prophet (RAA) gave to the Jews of Khaybar the date-palms and land of Khaybar, that would cultivate it with their own capital and would pay to the Prophet half of the produce. (Sahih Muslim, Kitab All-Buyu‘)
4. - Nafi‘ bin Umar (RAA) says that when the Prophet (SAW) had conquered Khaybar, he wanted to expel the Jews from the land. They asked him to let them stay on the land on the condition that they would cultivate it and would retain half of the produce for themselves. The Prophet (SAW) approved of this and said, “we shall, as long as we wish, let you stay on the land.” They were thus allowed to stay until the time of Umar bin Khattab (RAA) who exiled them. (Sahih Bukhari, Kitab Al-Muzari‘ah)
5. - Ibn Abbas says that the Prophet (SAW) gave the lands and date-palms of Khaybar for half of the produce. (Sunnan Ibn Majah, Kitab Al-Ruhun and Ibn Hanbal, IV, no. 2255)
Imam Abu Yusuf gives five forms of muzara‘ah-tenure in his famous book Kitab Al-Kharaj which, according to him, are valid in Shari‘ah.
1. - Free-tenure, in which landlord gives his land free to his brother without charging him any rent; the cultivator uses his own seed, animals and instruments; the entire crop belongs to him. If this is a kharaji land, the landowner will pay the Kharaj, if an ushri land, the tiller will pay the ushr. This was also stated to be the opinion of Abu Hanifa.
2. - Partnership-tenure, in which the landlord and the cultivator cooperate and share the expenses and seed and till the land together; they share the produce equally. If this is an ushri land, ushr will be paid from the produce, if kharaji land, kharaj will be borne by the landowner.
3. - Lease of bare land for money, in which bare land is leased for a fixed sum of money for one year or two, and which is currently known in Pakistan as muqala‘ah. This is valid in law. The landlord will pay the kharaj, if this is a kharaji land. If it is an ushri land, landowner will pay the ‘ushr. This is also the opinion of Abu Hanifa. According to Imam Abu Hanifa if it is a kharaji land, ushr is paid by the person who owns the crop, viz., the tenant in this case.
4. - Muzara‘ah-tenancy, in which land is given for one third or one fourth of its produce. Abu Hanifa does not allow it, for it is a fasid or irregular tenancy; in his opinion, if any laborer is employed for such a tenancy he must be given a definite wage equivalent to his labor (and not an indeterminate share in the crop); thus the kharaj (or the ushr) is paid by the landlord. Abu Yusuf disagrees with him; he says that this type of muzara‘ah is valid if all the conditions relating to it are fulfilled. Kharaj will be paid by the landlord if it is a kharaji land. In case of its being an ushri land, ushr is paid by both of them.
5. - Labor-tenancy, in which the landlord who owns also animals and seed calls upon a laborer or tiller to till the land for one sixth or one seventh share of the crop. For Abu Hanifa, again, this type of hiring labor for indeterminate wages is improper (fasid) because the crop belongs to the landlord and the laborer must be paid his wages commensurate with his labor. Abu Yusuf insists that this is all valid because their stipulations are based on traditions (aathar) of the Companions (RAA).
Now, we have seen as stated above, the two divergent views of the jurists, based on two versions of ahadith, on the question of muzara’ah. In Pakistan, the second view prevails in actual practice. I have suggested above the formation of a National Commission for Lands to determine the nature of agricultural land in Pakistan as on August 14, 1947, in the eye of Shari‘ah whether it is kharaji or ushri. It may now be added that in case the said Commission concludes that the lands in Pakistan are ushri, as held by Mufti Muhammad Shafi in his took Islam Ka Nizam-e-Arazi, it may address to itself the question of muzara‘ah in the eye of Shari‘ah. The question may, however, be determined after recording the statements of various Ulama (having juristic acumen) of Pakistan and India and, if needed, from other Muslim countries.
However, let it be noted that the problem can be resolved only if a critical analysis of the traditions is made taking full account of the history of the doctrine. Only that set of hypotheses is possible which can be verified with adequate evidence. The proposed Commission’s main task will be to investigate and give all the available evidence both in points of isnad and of history to find out which of these versions has greater antecedent probability than the other, not in sense that a certain hypothesis stands confirmed, if particulars are found, but rather in the sense of making positive a priori judgment which can adequately provide explanation more than the other possible alternative assumptions. (Landlord and Peasant in Early Islam, by Dr. Ziaul Haque, Islamabad, 1977). If it is deemed necessary, resort may be had to collective ijtihad, by the pious jurists (Al-Fuqaha Al-Abideen) as narrated by Ali (RAA). In case the Commission comes to the conclusion that muzara‘ah tenancy is valid in Islam, preferring the second version of ahadith, it may make necessary recommendations for eradicating the vices that have crept in the system, after examining the existing laws on the subject in the light of the injunctions of Islam as laid down in the Holy Qur’an and Sunnah of the Prophet (SAW). In the present economic scenario, it is imperative that overall and multi-dimensional reforms are made in the agricultural sector.
There is, however, a very big question here: Will the present Government, or for that matter any future Government dominated by the Feudal Lords, undertake this Hallunstic task? The answer perhaps obvious.
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483 - JOURNAL OF LAW - RELIGION [Vol. XV
By Baber Johansen. London and New York: Croom Helm, Methuen 1988. Pp. 143.
This book is a challenging work arguing that Islamic law stopped developing after the tenth century. Joseph Schacht, Noel J. Coulson, and Chafik Chehata, who have contributed greatly to advancing the study of Islamic law,1 are unanimous in supporting this view. The author plans to “demonstrate, with special reference to the development of Hanafite law in the Mamluk and Ottoman periods, . . . the structural changes that occurred between the tenth and sixteenth centuries.” (2)2 He focuses on “land tax and rent” as inter-related key concepts of the Hanfite law, by noting that the Middle East is a cereal-growing agricultural region.
The author divides the history of Islamic law into three periods: pre-classical (eighth to tenth century), classical (tenth to twelfth century) and post-classical (twelfth to nineteenth century). His intention is to compare the Hanafite doctrine on the forms of land tax and tenancy contracts through these periods.
Chapter One, “The Birth of the Kharaj Payer,” shows the basic legal principle that governs the Hanafite position on taxation. According to the Hanafite jurists, the land tax (kharaj) was a tax payable by the proprietors of landed property. Johansen relates that “this aspect of kharaj as a tax on private landed property is not generally acknowledged by Western scholars.” (7) The Hanafite doctrine, different from other Sunni schools, does not define kharaj as a tax, the payment of which implies acknowledging state-held title of ownership to land. If so, then who paid the tax, the tenant or the lessor? According to Abu Hanifa (ca. 699-767), the founder of the Hanafite school, it was always the proprietor who paid the kharaj. However, his disciples of the eighth and ninth centuries tried to shift the tax burden from the lessor to the tenant. How was this shift possible if we consider that this legal doctrine was part of Islamic law?
Chapter Two, “The Contract of Tenancy,” answers this question.
Through the tenancy contract (ijara), arable land was transformed into rent-yielding property because tenants could reap profits from the usufruct of the land, like dealing in commodities. However, the Hanafite jurists in Balkh and Bukhara during the classical period were faced with “the problem of whether it is the owner of Arabic arable lands or the person who makes unauthorised use (ghash) of them who has to pay the land tax.” (40) The attempt by jurists to assimilate the tenancy relationship to ghash marked the beginning of a new legal doctrine concerning land tax and rent. The author explains that the new tenancy relationship was described in terms of the unequal and hierarchical relationships between the tenant and lessor that characterized the share-cropping contract (muzara ’a).
Chapter Three, “The Share-cropping Contract,” deals with this
muzara’a contract that legally gave proprietors the right to collect rent from the cultivators of their fields. The author supposes that the contract was first used on state, iqta’ (lands assigned by caliph) and waqf
(foundation) lands, and then later applied to other forms of landed property. His point is that the status of peasants who provided only labor or land in the muzara’a was much worse than the status of tenants working under a tenancy contract (ijara). Consequently, “[i]n the Mamluk and Ottoman periods the peasant ceases to be regarded as a
kharaj payer and an owner of landed property.” (69)
Chapter Four, “The Death of the Proprietors,” discusses the Hanafite response to a new movement in Islamic history. From the second half of the tenth century, rural society in the Middle East underwent fundamental changes under the iqta’ system, which was first implemented in Buwayid Iraq.3 Army officers were assigned iqta’s, from which they collected revenues in return for their military services. The author emphasizes that “this practice . . . tended to obscure the difference between tax and rent.” (80) In other words, the peasant ownership of small holdings gradually disappeared under the iqta’
system. Faced with this new situation, the Hanafite jurists during the late Mamluk and the early Ottoman periods set out to reform their classical doctrine which stated that the obligation to pay rent can only result from use of land under a contract. They tried to legalize the relationship between landlord and peasant in iqta’ and waqf. That is to say, they reinterpreted the legal doctrine held during the classical period by Hanafite jurists in Central Asia who assimilated tenancy relationships to the unauthorized use of arable lands.
This new legal doctrine was based on the notion of the “death of the kharaj payer” proposed by a fifteenth-century Egyptian mufti (a jurist who gives authoritative legal opinions). The situation was as if the proprietors who were obliged to pay kharaj died one after another, without leaving heirs. According to the author, this notion served to explain and legalize the tenant status of peasants who no longer enjoyed property rights under the iqta’ system. (85) As Chapter Five, “The Ottoman Muftis’ New Doctrine on Tax and Rent,” shows clearly, the Hanafite muftis during the Ottoman period developed a new doctrine on tax and rent, based on the writing of jurists of the late Mamluk period. Contrary to the view that Islamic law remained unchanged after the tenth century, the Hanafite jurists and muftis strove to reform their legal doctrine until the nineteenth century.
The author succeeds in proving that Islamic law developed even after the tenth century via an elaborate examination of the texts, resulting in the discovery in changes in the Hanafite legal doctrines. Some readers may find it difficult to follow the process of the author’s detailed arguments, while others may wonder why no jurist tried to reform the legal doctrine on tax and rent during the early Mamluk period, when the iqta’ system was at its height. Furthermore, Egyptian peasants under the Mamluks, called fallahun or muzari ’un, were, after irrigation by the annual flood of the Nile, customarily allocated land to be cultivated not according to muzari ’un contracts but rather under
qabala contracts with their iqta’ holders.4 This shows that contracts between iqta’ holders and cultivators did not lose their significance even in the Mamluk period, a point that diverges from Johansen’s conclusions.
The Islamic Law on Land Tax and Rent is an important monograph that shows clearly the developmental process of the Hanafite legal doctrine from the tenth century on. Johansen enables his readers to see that Islamic law has evolved through the adaptation of its doctrine to social changes throughout its history. His work provides us with the joy of touching an author’s spirit as he challenges established theory.
JOURNAL OF LAW - RELIGION [Vol. XV
Reviewed by Tsugitaka Sato †
† The University of Tokyo, Graduate School of Humanities, Tokyo, Japan.
(satotg at yk dot rim dot or dot jp)
1. Joseph Schacht, An Introduction to Islamic Law (Oxford: Oxford U. Press 1964); Noel J.
Coulson, A History of Islamic Law (Edinburgh: Edinburgh U. Press 1964); Chafik Chehata,
Etudes de droit muselman (Paris: Presses universitaires de France 1971).
2. All citations in the text refer to the book under review.
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3. Concerning the iqta’ system in the Middle East, see Sato Tsugitaka, State and Rural
Society in Medieval Islam (Leiden: Brill 1997).
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4. Id. at 192-197, 236.
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