7. PUBLIC WELFARE VIS-A-VIS THE DISCRETION OF THE GOVERNMENT

Respect for ownership of property is a distinctive feature of the Islamic economic system. The objective of the Sharia seeks, interalia, to protect the earning and property (mal) of people. This objective can be achieved only when the legal system prevailing in a society prevents violation of the properties of people. The holy Prophet (peace be upon him) has emphasized this point on a number of occassions. He is reported to have said:

“It is not permissible for a man to take away the stick of his brother without the latter's Will”.

“The property of a Muslim person is not lawful (for anyone) except with his free Will”.

The spirit implicit in such traditions led to the formulation of the following rules in regard to the use of property by others. * “No one may dispose of the property of another, without the latter's permission”.

** “An order by one person to dispose of (Tasarruf) the property of another is null and void” .


Tasarruf (use or disposal) may be under or without a contract. Contractual tasarruf would imply that a person makes an agreement or authorizes someone to sell, gift, mortgage, hire, deposit or lend another's property without the owner's consent. Tasaruf or use without contract implies disposing of somebody's property without his permission. An agreement made to this effect is normally deemed to be legally ineffective while he who uses it without permission is liable to indemnify the owner. Absence of a licence, or permission to make such act renders it to be null and void. This right, however, does not deny the right of lawful claimants, where this provision is incorporated in the following rule:

* “No one may take the property of another, except for a lawful reason”.


The clause except for a lawful apparent reason makes this maxim applicable not only to authorization made by the owner but also to that laid down by law or reason. The authorization provided by law lies in levy or penalties by government which justifies the latter's claim on the owner's property or a part of it. This does not require the owner's wilful consent.

Reason sometime allows a -non-owner to dispose of the property of the owner to save him from loss or damage. The manager of a poultry farm, for instance, who is not authorized to sell the chicken, may dispose of the whole stock for fear of the owner's loss, let us say, due to the spread of an epidemic in case it is not possible to expediously obtain the permission of the owner for one reason or another within time. Fire fighters may drench, destroy or dismantle inflammable erections lying in the vicinity of a burning object, without seeking the permission of the owner.

The authority of disposal on legal or rational grounds is equally enjoyed by the government under a different rule which reads as follows:

* “Power in respect of the people's property must be exercised for the public benefit”.

The rule confers wide powers in the government to control. or regulate the acquisition and use of a private property by the owner subject to the following conditions:

(1) The action so taken by the government should aim at achieving public interest and general welfare; for the government officials are supposed to act on behalf of the entire ‘Umma for achieving public interest through maintaining justice, eliminating corruption in society and using all available resources for the sake of achieving what deems to be in the interest of the ‘Umma in the present and the future. Thus the action by the government officials should not be in conflict with these objectives.

(2) In case the government thus needs to acquire private property it should pay just compensation to the owner because of the rule already discussed above.

(3) According to some scholars the actions taken to achieve public interest should enjoy the support of the people.

The above conditions of the rule require that an Islamic government should clearly define the duration of ownership and the rights of disposal.

It should so legislate as to prevent others from misuse of public or private property. The administrative machinery should be competent to enforce the law in a just and honest manner. In case the government needs to acquire the property owned by some of its citizens it should publicize the contents of the property, the purpose of acquiring it and the rate of just compensation that it intends to pay. It should be ensured that the purpose for which the property is to be acquired enjoys the support of the people who can impartially judge the validity or otherwise of the purpose for which the government intends to take over somebody's property.