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Abstract
In this pioneering work Siraj Sait and Hilary Lim address Islamic property and land rights, drawing on a range of socio-historical, classical and contemporary resources. They address the significance of Islamic theories of property and Islamic land tenure regimes on the 'webs of tenure' prevalent in the Muslim societies. They consider the possibility of using Islamic legal and human rights systems for the development of inclusive, pro-poor approaches to land rights. They also focus on Muslim women's rights to property and inheritance systems.
Engaging with institutions such as the Islamic endowment (waqf) and principles of Islamic microfinance, they test the workability of 'authentic' Islamic proposals. Located in human rights as well as Islamic debates, this study offers a well researched and constructive appraisal of property and land rights in the Muslim world.
'This book is a cross cultural endeavour to promote global strategies for enhancing security of tenure in the Muslim World. This collaborative venture between UN-HABITAT, academics and civil society makes a vital and timely contribution to the Global Land Tool Network (GLTN) and other global campaigns.'
Clarissa Augustinus, UN-HABITAT
'Is there such a thing as an “Islamic approach” to the land discourse and what would be its implications? This book addresses the gap in both the human rights and Islamic literature on land and property issues and therefore will be of interest to practitioners as well as academics.'
Nazila Ghania, University of London
'The book challenges the stereotyped versions of Islam and its practice in Muslim communities.'
Mohamed Elewa, Egyptian Diplomat
Siraj Sait has been a consultant for the UNHCR, UNICEF and UN-HABITAT. He has been closely associated with several NGOs, as a consultant for Minority Rights Group and as a trustee of the Commonwealth Human Rights Initiative. He is currently Legal Officer, Land and Tenure Section, Shelter Branch, UN-HABITAT.
Hilary Lim is a Principal Lecturer in Law at the University of East London, where she teaches land law, equity and trusts and child law.
Table of Contents
Section Title | Page | Action | Price |
---|---|---|---|
Cover\r | Cover | ||
Table of Contents | v | ||
Abbreviations | vi | ||
Acknowledgements | viii | ||
Foreword by Anna K. Tibaijuka | x | ||
1\x02Researching Islam, Land and Property | 1 | ||
Scope of the Research | 2 | ||
Methodology | 4 | ||
Land and Property Rights in Muslim Societies | 6 | ||
Theorizing Islam, Land and Property | 8 | ||
Islamic Concepts of Land Tenure and Access to Land | 11 | ||
Security of Tenure | 13 | ||
Islamic Land and Land Reform | 14 | ||
Factors Influencing Islamic Land Doctrines | 16 | ||
Land Administration and Good Governance | 18 | ||
Ottoman Land Administration | 20 | ||
Islam and Land Cadastre, Registration and Titling | 22 | ||
Islamic Urban Planning | 23 | ||
Islam, Environment and Water | 25 | ||
Conclusions\r | 26 | ||
2\x02Islamic Law, Land and Methodologies | 29 | ||
Role of Law in Land Policy | 30 | ||
Relevance of Islamic Law in the Muslim World | 32 | ||
Reasoning in Islamic Law | 34 | ||
Foundations of Islamic Law and Usul al Fiqh | 36 | ||
Evolution of Islamic Laws Relating to Land and Property | 37 | ||
Sources of Islamic Law Relating to Land | 38 | ||
Ijtihad (Personal Reasoning) | 41 | ||
Jurisprudential Schools or Madhahib | 41 | ||
Islamic Law in a Pluralist World | 43 | ||
Islamic Legal Pluralism | 44 | ||
Islamic Law in Action | 46 | ||
Alternative Dispute Resolution and Access to Justice | 49 | ||
Conclusions\r | 51 | ||
3\x02Islamic Land Tenures and Reform | 54 | ||
Contextualizing Islamic Land Tenure | 55 | ||
Security of Tenure in the Muslim World | 56 | ||
Islamic Webs of Tenure and the Tenure Continuum | 57 | ||
Categorization of Land | 60 | ||
Acquiring Individual Ownership of Land | 61 | ||
Land Tenure Regimes in Ottoman Practice | 63 | ||
The Ottoman Codes and Land Regulation | 67 | ||
Impact of Colonialist Land Administration | 68 | ||
Postcolonial ‘Land Tenure Webs’ | 72 | ||
Conclusions\r | 76 | ||
4\x02Islamic Human Rights and Land | 80 | ||
International Land and Property Rights Framework | 81 | ||
Debating the Universal Declaration of Human Rights | 85 | ||
Universalism and Cultural Relativism | 86 | ||
Religion as a Source of Human Rights | 88 | ||
Islamic Human Rights and Land Rights | 89 | ||
Islamic Rights for Women, Children, Minorities and Migrants | 93 | ||
Implementing Land, Property and Housing Rights | 99 | ||
Conclusions\r | 104 | ||
5\x02Inheritance Laws and Systems | 107 | ||
Nature of Islamic Inheritance Laws | 108 | ||
Key Features of Islamic Legal Rules of Inheritance | 110 | ||
Inheritance Rules as Part of Wider Islamic Inheritance Systems | 113 | ||
Estate Planning | 115 | ||
Post-inheritance Adjustments | 119 | ||
Legal Reforms to Inheritance Systems | 123 | ||
Conclusions\r | 126 | ||
6\x02Muslim Women and Property | 129 | ||
Debunking Stereotypes Regarding Muslim Women | 130 | ||
Addressing Gender Rights through International Human Rights Law | 132 | ||
Women’s Rights to Property under Islamic Law | 133 | ||
Unequal Shares in Inheritance and the ‘Compensation’ Argument | 134 | ||
Social History of Muslim Women’s Property Rights | 136 | ||
Custom, Family and Women’s Property Rights | 138 | ||
Impact of Modern Legal Reforms | 141 | ||
Conclusions\r | 143 | ||
7\x02The Waqf (Endowment) and Islamic Philanthropy | 147 | ||
A Unique Islamic Institution | 148 | ||
Legal Framework for the Waqf | 150 | ||
Property and the Cash Waqf | 153 | ||
Accountability of the Waqf | 155 | ||
Socio-economic Impact of the Waqf | 155 | ||
Debating the Contribution of Awqaf | 157 | ||
Colonialism and the Waqf | 159 | ||
Decline of the Waqf | 161 | ||
Postcolonial Attitudes Towards Awqaf | 162 | ||
Contemporary Revival of the Waqf | 164 | ||
Waqf in the State Discourse – Kuwait Case Study | 166 | ||
Innovation in the Administrative Structure of Awqaf | 168 | ||
Ijtihad and the Perpetuity of the Waqf | 169 | ||
Access to Land through the Waqf Model | 170 | ||
Conclusions\r | 171 | ||
8\x02Islamic Credit and Microfinance | 174 | ||
Modern Revival of Islamic Finance | 176 | ||
Foundations of Islamic Economic Activities and Behaviour | 178 | ||
Distinguishing Features of Islamic Finance – the Prohibition on Riba and Gharar | 180 | ||
Social and Developmental Roles of Islamic Banks | 183 | ||
Application of Islamic Principles to Microfinance | 184 | ||
Islamic Financial Objectives and Products | 185 | ||
Islamic Mortgages | 188 | ||
Takaful (Islamic Insurance) and Microtakaful (Micro-insurance) | 190 | ||
‘Back Door’ Conventional Banking and Microfinance | 191 | ||
Need for Regulation | 193 | ||
Islamic Microfinance in Practice | 194 | ||
Islamic Microfinance in Yemen | 196 | ||
Bangladesh and the Grameen Bank | 197 | ||
Conclusions\r | 199 | ||
Postscript: From Strategy to Tools | 202 | ||
Bibliography | 205 | ||
Glossary of Arabic,Ottoman and Islamic Terms | 225 | ||
Index | 234 |