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Land, Law and Islam

Land, Law and Islam

Hilary Lim

(2008)

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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