OWNERSHIP OF OIL AND GAS IN LIGHT OF THE MAQAASID ASH-SHARI’AH

M. Ali Sadiqi

AbstractCurrent theories of mineral ownership in predominately

Muslim countries all support state ownership of minerals. Many of these theories have little to do with the Shari’ah or Islamic Law and are instead based on Western civil law traditions or lex mercantorio. Other states have paid lip service to Islam and Shari’ah law by justifying state ownership of minerals through hisbah (state police powers to maintain public order), arfaq (commonage) or urf (custom). Inthe only serious attempt to justify state ownership under Shari’ah Law, the school of Imam Malik has used a maslahah-based approach based on compelling public interest. Under this approach, the Islamic state is thought to be in the best position to protect the rights of society in minerals and mineral wealth. Such might have been true under the al-Rashidun (rightly guided Amaraa’ al Muslimeen; Abu Bakr, Umar, Uthman and Ali), however, the basic principle behind Imam Malik’s opinion, ie the protection of society’s rights,particularly the rights of the less fortunate – is not beingmet today. This paper will argue that a policy based on theemerging methodology of first espoused by the Andulusian scholar, al-Shaatibii, the Maqaasid Al-Shariah, or overarching objectives of the Shari’ah would provide more protection for both society and the individuals who constitute it.

Utilizing the maqaasid approach, private and communal (musha’) ownership along with state sovereignty and regulatory authority would provide the best means of protecting the public and private interests in society. As per Shari’ah law, all mineral wealth is subject to the khumsor 1/5 share of all production, which would be reserved for the eight classes of those eligible for zakat, including thepoor, needy, students, and travelers. Next, the payment of

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obligatory zakat of 2.5% on the profits of sales of oil and gas would provide even more funds to support zakat-eligible classes. Zakat should be imposed on all profits gained by any company or venture within a Muslim country, including all companies profiting from oil and gas development, production and sales. And private and communal ownership of mineral rights would mean that companies, including state-run companies would have to negotiate lease contracts that would include provision for bonuses, rents and royalties, inmuch the same way as they do in the United States. The revenues from these bonuses, rents and royalties would directly benefit local communities and tribal groups.

Finally, this policy would not impede government regulation as far as conservation laws, taxation and environmental laws. Moreover, this policy will not impact foreign oil companies and their current concessions. Instead, it will prevent the tremendous waste of oil revenues at the hands of government strongmen and power elites, as well as providing a more balanced degree of powerbetween central governments, regional and tribal groups, andindividuals. Removing government ownership of mineral rights may also reduce the degree of violence that some countries have experienced toward ethnic groups whose lands sit astride oil reserves.

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Outline

I. IntroductionII. The Difference between Shari’ah and Fiqh

a. Sources of Islamic Lawb. The Schools of Thought and the Sources of Lawc. The Modern Madhaahib

III. The Islamic Law of Propertya. To Allah belongs all that is in the Heavens and

Earthb. Types of Ownership c. The Shari’ah Law of Rikazd. The Fiqh of Rikaz:

i. Theories of Mineral Ownership According to the Madhaahib

ii. Theories of Mineral Ownership in Modern Islamic States

1. Western Civil Law2. Urf3. Arfaq4. Hisbah5. Maslahah Mursalah

IV. The Emerging School and its Minhaj of the Maqaasida. The Maqaasid al-Shari’ah

i. necessities1. nurturing of Din2. nurturing of life/soul3. nurturing of property4. nurturing of reason/aql5. nurturing of lineage/honor

ii. needs1. individual and social2. finding a just balance

iii. luxuries1. the things that beautify life

iv. Individual objectivesv. Universal objectives

V. Theories of Mineral Ownership under the Emerging Minhaj of the Maqaasid

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a. Balancing the interests: private, communal, stateb. Means for achieving these goals

i. Imposition of the khumsii. Payment of Zakat upon the profitsiii. Receipt of the revenue from one in every five

barrels and well as 2.5% of the profits.iv. Payment of Royalties to the landownerv. Continued regulatory sovereignty by the Statevi. Taxation authority of the State

VI. Conclusion

Introduction

In September of 1933, two American geologists stepped

ashore at a tiny fishing village called Jubail, on the Gulf

coast of the Arabian Peninsula. Thus began the search for

petroleum and the transformation of a desert kingdom into a

modern economic power.1 In nation after nation, across the

Middle East and North Africa, this scene was repeated.

Suddenly a world long lulled to a stagnant sleep by the

Ottoman Empire and its painfully slow decline, awoke to the

promise of oil revenues. An apparent panacea for all

problems, oil money looked to be the means by which the

Middle East could once again be a player with which to be

reckoned upon the world stage. Despite political

1 William Facey and others, Arthur P. Clark and Muhammad A. Tahlawi (eds), A Land Transformed: The Arabian Peninsula, Saudi Arabia and Saudi Aramco, (Aramco Services Company, Dahran 2006) 147.

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instability fueled by Cold War politics, the economic growth

rates soared. Somewhere in the 1980’s, Kuwait’s per capita

gross nation product exceeded that of most European

countries. 2

But by the mid 1990’s, the illusion began to fade.

Only Kuwait, Qatar and the United Arab Emirates maintain

high standards of living comparable to Western nations.

Saudi Arabia has an average income rate comparable only to

poorer European nations. And the bulk of the populations of

Middle Eastern oil countries live in difficult conditions.

Literacy rates vary widely from 10% in Iraq to 80% in Yemen.

3 The majority of oil exporting countries of the Middle

East and North Africa are poor and under the pressure of

exploding population growth, they are getting poorer. 4 In

fact, despite all the petrodollars, many countries still

depend on foreign aid and are is desperate need of foreign

exchange.5

2 Oystein Noreng, Oil and Politics: Social and Economic Issues, (John Wiley and Sons, Chichester 1997) 186.3 Ibid. 187.4 Ibid. 5 Sheikh R. Ali, Oil, Turmoil, and Islam in the Middle East, (Praeger Publishers, New York 1986) 43.

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So what happened to the promise of oil? The answer is

complex and certainly beyond the scope of this paper,

however one thing is certain;

The reason is much more bad political leadership. Autocratic leaders

used conflicts with neighbours to entrench power. … Anintermediary

conclusion is that the highly centralized political leadership of the Middle

Eastern and North African oil exporting countries seemsunwilling and

unable to change, even if circumstances change profoundly. 6

Dissatisfaction with regimes, often propped up by Western

interests, has led many in the Middle East and Africa to

turn elsewhere for progress and change. Many are turning

back to what worked in the past; what fueled a golden age of

progress and science. They are turning away from Western

colonialism and dominance to an idea of social justice; they

are turning to Islam.

However, does Islam actually hold out any promise for

change? Influenced by Abdul Razzaq Al-Sanhuri and the

6 Oystein Noreng, 188. Mr.Noreng has done an excellent job of documenting the factors contributing to the failure of the promise of oil revenues. Particularly telling are the statistics on fuel exports minus military expenditures on pages 176-178.

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Egyptian New Code, many of the oil producing countries

already have laws incorporating aspects of “Islamic” law. 7

However, following the methodology of Sanhuri, these laws

borrow from many sources; European laws, Ottoman codes,

fatawas of the various schools of Islamic fiqh, local customs

– in short anything that appears to work, with no preference

for any particular system. 8 The Islamic Shari’ah law was

only introduced as a means to legitimize the law in the eyes

of the public. 9 The goal was change without changing.10

And this is exactly why many Muslim thinkers question the

policies and laws of countries who claim to be following

Shari’ah law, including Saudi Arabia.

7 Guy Bechor, The Sanhuri Code, and the Emergence of Modern Arab Civil Law, (Koninklijke Brill NV, Leiden 2007) 37.8 Ibid. 84. See also Ibid. 79.9 Ibid. 86.10 Ibid. 260 -263. In fact, Sanhuri used the Islamic Shari’ah concept of maruna or flexibility in the law to support his interpretation of takhayar – or selecting the good. This interpretation allowed him to chose laws for any source, even Western sources, if it achieved the desired end of change without changing. In his diary he notes that there are two intellectual groups in Egypt, those that cling blindly to the Islamic past, and those who seek to “cut the umbilical cord of the past in order to introduce European civilization.” “Both groups presenta danger for Eastern society. We must admit we need Europe at the present; but this does not imply sacrificing our own national traditionsand introducing a foreign civilization in our Eastern land.” Ibid. 261.

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The goal of this work is not to explore all the facets

of Islamic Shari’ah law or its application as the law of a

modern state, but instead to posit that the application of

the emerging methodology of the maqaasid al-Shari’ah to the

issue of oil and gas ownership would better spread the

wealth generated by oil production to the benefit of all

segments of society, leading to an increased realization of

the long awaited promise of oil. In doing so we will begin

by clearing up what we mean by Shari’ah law and Islamic law

as well as explaining the importance of the Shari’ah today.

This will involve describing the difference between the

Shari’ah and fiqh, as well as a review of the sources of

Islamic law, and the methodologies that have developed to

interpret that law. Then we will review the basics of

Islamic property law, with particular attention to mineral

ownership. After that we will look at the current theory of

oil and gas ownership under Islamic law. Finally, we will

suggest a new formulation of mineral ownership more in

keeping with the tenants of the Qur’an and the Sunnah by

applying the maqaasid al-Shari’ah.

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The Difference between Shari’ah and Fiqh

The difference in meaning between the Arabic word

“Shari’ah” and the term “Fiqh” can be summed up in a few

words. The Shari’ah is Divine Legislation and fiqh is the

human interpretation. More thoroughly, the Shari’ah is the

sum total of Islamic law including the sources of that law

and the jurisprudential rules necessary to interpret those

sources and extract the law therefrom. Fiqh is the body of

rules extracted by the scholars, utilizing the methodologies

(usul al-fiqh) developed by the major schools of Islamic

thought. 11 The difference is similar to the one found in

the Western legal system, between the term, “The Law,” and

the particular legislations and regulations enumerated in 11 N.J. Coulson, The History of Islamic Law, (Edinburgh University Press, Edinburgh 1964) 76, 83. Coulson seems to confuse the terms fiqh and usul al fiqh. Fiqh refers to the ruling themselves. Usul al fiqh is literallythe “pillars or foundations of understanding.” Usul al fiqh provides the rational methodologies and approaches, and is more properly translated as jurisprudence. Fiqh is more properly translated as statutes or rules.

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statutes, code books and administrative rules. Hence fiqh is

part of the Shari’ah and the Shari’ah is far more

comprehensive than fiqh.

The richness of the Arabic language captures the nature

of the difference between the two terms. “Shari’ah” stems

from a root word meaning “path to a water hole.”12 “Fiqh,”

on the other hand, comes from an Arabic root meaning

“understanding.”13 Evoking the time worn, ever beckoning,

inviting coolness of an oasis in the parched dessert of

Arabia, the Shari’ah is the well-spring of a comprehensive

way of life.14 The concept of the Shari’ah is comprehensive

and includes the “totality of the divine characterization of

human acts.”15 These characterizations are five in number:

“obligatory” (wajib or fard), “recommended” (mandub or

mustahabb), “permissible” or “neutral” (mubah),

“disapproved” (makruh) and “forbidden” (haram). Based upon

12 Bernard G. Weis, The Spirit of Islamic Law, (University of Georgia Press, Athens (1998) 17. 13 N.J. Coulson, The History of Islamic Law, 75.14 Ibid. 15 Ibid. 18.

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these five values, any human act may be characterized as

either “valid” (sahih) or “invalid” (batil).16

In the Islamic legal system, the Law is the word of

Allah (SWT).17 Because the law was “legislated” by Allah

(SWT) at the time of the revelation of the Qur’an to the

Prophet Muhammad (SAW), the law itself is immutable.18 This

legislation is found in the two primary and binding sources

of the law; the Qur’an, the verbatim speech of Allah

revealed to the Prophet Muhammad in Arabic and transmitted

by continuous testimony,19 and in the Sunnah of the

Prophet.20 The Sunnah of the Prophet is the sum total of

his actions, sayings, tacit approvals and physical and moral

characteristics.21 This “Sunnah” or “normative practice,”

“example,” or “established course of conduct,” is recorded

in accounts and narratives called ahadith. (hadith sing.)22

16 Ibid. 21.17 Ibid.18 Ibid. 19 Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, (Islamic Texts Society, Cambridge, (2003) 16.20 Coulson, The History of Islamic Law, 76.21 Kamali, Principles of Islamic Jurisprudence, 58.22 Ibid. 61.

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Sources of Islamic Law

The primacy of both the Qur’an and the Sunnah as

sources of law is established by Allah. He says is the

Qur’an;

It is He who sent among the unlettered ones a Messengerfrom amongthemselves, reciting to them His verses and signs, and purifying them and teaching them the Book and the Wisdom, although before they were in clear error.23

Many scholars of Islam agree that “the Book” (al-kitab)

mentioned in this verse means the Qur’an, and “the Wisdom”

(al-hikmah) refers to the Sunnah of the Prophet. 24

23 Qur’an al-Jumu’ah (62:2). All Qur’anic passages are translated by the author with the assistance of Saheeh International, The Qur’an: Arabic Text and Corresponding English Meanings, (Abul-Qasim Publishing House, Jeddah 1997).All Arabic versions are from ~~,(Hypertext Qur’an), http://www.sacred-texts.com/isl/quran/index.htm> accessed 10 May, 2009.24 Kamali, Principles of Islamic Jurisprudence, 24. I consider the term “Kitab” to refer to both revealed sources, the Qur’an and Sunnah, and the term “Hikmah” to refers to the methodology utilized to derive fiqh, or what is referred to as minhaj in Usul al Fiqh.

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It then falls upon the Muslims to discover that law,25

and that adventure of discovery began in the time of the

Prophet himself. When the Prophet (SAW) sent Mu’adh ibn

Jabal to be the judge of the people of Yemen, the Prophet

asked Mu’adh upon what he would base his judicial decisions.

Mu’adh replied that he would refer first to the Qur’an, then

to the Sunnah of the Messenger of Allah (the Prophet), and

if the answer to the issue could not be found between them,

then he would use ijtehad or rational methods. 26

As this hadith indicates, the Qur’an and the Sunnah are

the primary, binding sources of law, but what if they are

not clear, or qa’ti? A qa’ti or definitive text, such as “The

fornicator, whether a man or a woman, flog them each a

hundred stripes,” has one meaning. 27 However, Qur’anic

verses and hadith may also be zanni or ambiguous in some

manner. For example, the Qur’an commands Muslims to wash

their hands or “yadain” in the purification ritual of wudu,

but the term “yad” in Arabic can mean either a hand or the 25 Ibid.26 Ibid. Although the Dr. Hashim Kamili mentions only the Qur’an and the Sunnah, the hadith that he quotes specifically mentions, “Qal: fain lam yakun sunnata rasul allah? Qal: ijtahidu raaiy wa la aalu.”27 Ibid. 28.

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entire arm.28 So which meaning applies in this context?

Such passages require interpretation; they require ijtehad or

“diligence and rational effort”. 29

The science of fiqh (usul al fiqh), or Islamic jurisprudence,

developed as a means of exercising ijtehad by interpreting

the speculative or ambiguous passages and thereby enabling

the extraction of the law from the sources.30 Over the

course of Islamic history the scholars of Islam developed

interpretive methodologies (minahij (sing. minhaj)) and

jurisprudential rules to aid them in their task.

Interestingly, unlike American or European law, these

methodologies developed independently from governmental or

judicial practice. Professor Coulson notes;

Islamic jurisprudence had in fact been essentially idealistic from the outset.

Law had not grown out of the practice of the courts or the remedies therein

available – as Roman law had developed from the actio orEnglish Common

Law from the writ- but had originated as the academic formulation of a

scheme alternative to that practice…31

28 Lecture by Dr. Mohamad Adam El-Sheikh, (Morning Halakah, Dar Al-Hijrah Masjid, Falls Church, VA 2004).29 Ibid.30 Coulson, The History of Islamic Law, 76.31 Ibid. 82.

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Thus, the authority of the law did not stem from any earthy

sovereign, and was vested in the will of Allah, alone.

And the will of Allah could be discovered by the

scholars of usul al-fiqh not only by studying the divinely

revealed sources, but by employing rational doctrines and

proofs. Over time the scholars developed the theories of

ijma (consensus or unanimous agreement of the scholars), qiyas

(analogical deduction), qawl as-sahabi (the opinions of the

companions of the Prophet Muhammad (SW)), istihsan (equity or

juristic preference), maslahah mursalah (public interest),

istishab al-hal (presumption of continuity), sadd adh-dhari’ah

(blocking the means to evil), urf (local customs), and the

teachings of earlier scriptures including the Torah and the

Gospel. 32

The Schools of Thought and the Sources of Law

32 Imran Ahsan Khan Nyazee, Islamic Jurisprudence (Usul al-Fiqh), (The International Institute of Islamic Thought, Islamabad 2000) 144-145; Kamali, Principles of Islamic Jurisprudence, 169, 197, 227, 235, 245, 267, 283, 310.

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Orientalists and Muslims alike have classically

analyzed Islam as having two “sects,” Sunni and Shi’a, with

four Sunni schools of thought, and three main Shi’a schools

of thought, however these labels do little to capture the

realities of the Islamic madhaahib today.33 The schools of

thought or madhaahib developed out of the iktilaf or diversity

of methodologies. 34 The Arabic root, “dhahaba,” means “to

follow a certain course.” 35 Local conditions as well as

preferences for certain rational methods over others

resulted in variations among each school’s compendium of

collected legal opinions and extracted rules. 36 The

classic madhaahib (sing. madhhab) developed not only as

methodologies of fiqh, each generally named after the founder

33 Some modern analysts have concentrated on ideologies as a means to categorize contemporary Muslim thought; however this approach has generally not been helpful, revealing more about the writer’s own ideology than any real Islamic typography. For example, the RAND Corporation, in its efforts to prevent a “clash of civilizations” has ranked current ideologies from conservative traditionalists to radical secularists, a ranking generally based on a particular group’s position on United States foreign policy. See Jasser Auda, Maqasid Al-Shariah As Philosophy of Islamic Law: A Systems Approach, (The International Institute of Islam Thought, Herdon, 2008) 148-149.34 Ibid. 86.35 John Maqdisi, Islamic Property Law: Cases and Materials for Comparative Analysis with the Common Law, (Caroline Academic Press, Durham, 2005) 86.36 See Coulson, The History of Islamic Law, 86 -102; Weis, The Spirit of Islamic Law, 9-16.

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of the school, but also as a means of gaining all forms of

religious learning. Fiqh is divided into two branches; fiqh

al-ibadaat or the rules of worship and fiqh al-mu’amalaat or the

rules of transactions. Passed on from teacher to student,

the fiqh of the traditional schools included how to pray as

well as how to make a contract, and because only one school

tended to be followed in any given area, a person rarely

gained exposure to any other school. Today, with the rise

of modern universities, mass communication, the internet,

and easy world travel, the situation is quite different.

The average Muslim today may be exposed to every major

madhaahib while swimming in a sea of multiple and often

conflicting political and ideological currents.

Despite all of the currents swirling around the modern

madhaahib, what remains at the heart of these schools of

thought is a methodology for deriving fiqh from the primary

sources through the use of rational methods. Each school

can be characterized by its usul al-fiqh which centers on its

acceptance and prioritization of ten key evidences: the

Qur’an, the Sunnah, ijma (consensus or unanimous agreement of

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the scholars), qiyas (analogical deduction), qawl as-sahabi (the

opinions of the companions of the Prophet Muhammad (SW)),

istihsan (equity or juristic preference), maslahah mursalah

(public interest), istishab al-hal (presumption of continuity),

sadd adh-dhari’ah (blocking the means to evil), urf (local

customs). 37 We turn briefly then to examining acceptance

of each of these key evidences in relation to the ten

contemporary madhaahib; the madhhab of Abu Haneefa, the

madhhab of Imam Malik, the madhhab of Imam Shafi’I, the

madhhab of Ahmad ibn Hanbal; the Shi’a madhaahib of the

Jafari madhhab, the Zaydi madhhab, the Ibaadi madhhab, and

the newer madhaahib of the madhhab of the Salafi School.

The Modern Madhaahib

Imam Abu Haneefa Nu’man Ibn Thabit , born in 702 CE in

Kufa, Iraq, is the founder of the school of jurisprudential

thought which bears his name. The Hanafi school or Ahnuf is

the earliest madhhab. Without question the highest

37 Jasser Auda, Maqasid Al-Shariah as Philosophy of Islamic Law, 133. See also, Kamali, Principles of Islamic Jurisprudence, chs. 2,-3, 8-9,12-15; Imran AhsanKhan Nyazee, Islamic Jurisprudence, 144-145.

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authority for this school is the Qur’an, but because of the

distance from the then center of Muslim learning, Medina,

the people of Kufa depended more on rational methods than on

the hadith or sayings of the Prophet, hence they are often

called the ahl al-ray or the people of opinion. The school

of Abu Haneefa, then, recognizes the following order of

evidences: The Qur’an, the Sunnah, the opinions of the

Companions, qiyas, istihsan, ijma, urf and istishab or the presumption

of continuity.38 Most importantly, this school does not

recognize maslahah, although istihsan can sometimes fulfill the

same role.39

Imam Malik, the founder of the second major school of

thought, lived in Medina, the city founded by the Prophet

Muhammad, from 717 to 801 CE. He studied with az-Zuhree,

the greatest hadith scholar of his time, and he narrated

hadith from Nafi’ the servant of Ibn Umar, the son of Umar

ibn Khattab, and a great companion of the Prophet in his own

right. His book, The Mu’watta, is the oldest extant

collection of ahadith. The priorities of the Maliki school

38 Jasser Auda, Maqasid Al-Shariah as Philosophy of Islamic Law, 133.39 Ibid. 122.

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are; Qur’an, Sunnah, opinions of the companions, opinions of

the people of Medina, qiyas, maslahah, urf, and principles of

continuity. 40 The Maliki school has focused on maslahah;

Imam Malik being the developer of this rational principle.

The madhhab of Ahmad ibn Hanbal (778-855 CE),

however, has generally focused more on evidence from the

Qur’an and hadith, than on any of the rational methods.

Imam Ahmad collected 30,000 hadith in his Musnad, and he is

well known as the teacher of the great hadith scholar, al-

Bukhaari. 41 The priorities of the Hanbali school are;

Qur’an, Sunnah, opinions of the companions, ijma, qiyas,

maslahah, urf, istihsan, sadd al adh-dhari’ah, and presumption of

continuity. 42 Although some rational methods such as qiyas

and istihsan were accepted by influential Hanbali scholars

such as Ibn Taymiyyah and Ibn Qudaamah, the two contemporary

Hanbali-influenced schools do not generally accept rational

methods.

40 Ibid. 133.41 Abu Ameenah Bilal Phillips, The Evolution of Fiqh: Islamic Law and the Madh-habs, (International Islamic Publishing House, Riyadh, 2000). 84-86.42 Jasser Auda, Maqasid Al-Shariah as Philosophy of Islamic Law, 133.

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Muhammad Abdul Wahhab, the founder of the Salafi

school, recognized that Islamic revival depended upon a

return to the Qur’an and the Sunnah of the Prophet.

Sometimes referred to a “Wahhabi” school, the Salafi were

influenced by the usul al fiqh of the Yemeni Zaydi scholar, Al-

Shawkani, and his rejection of taqlid, and insistence that

any fiqh position be supported by authentic revealed

evidence from either the Qur’an or the Sunnah. However,

despite their vocal and aggressive rejection of the concept

of taqlid, or considering the fiqh positions of a particular

madhdhab to be binding, the Salafi consider the fiqh opinions

of the Salaf as binding. The term “salaf” refers to “those

who come after.” In Islamic parlance, this refers to the

tabi’een and tabi’tabi’een¸ the generations who came after the

Sahabi or Companions of the Prophet. As with case law in

the Common Law legal system, the opinions of the Sahabi and

the Salaf, are considered by many to be absolutely binding.

However, the Salafi also regard the opinions of later

Hanbali scholars such as Ibn Taymiyyah and Ibn Qudaamah as

binding. The Zahiri branch of this school, has gone

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even further and adopted the literalist or Zahiri approach

of the Andalusian scholar Ibn Hazm. This branch accepts

only the Qur’an, hadith and the presumption of continuity as

sources of law. Anything else is bid’ah or unacceptable

innovation. Moreover, the authenticity rulings by the

Syrian Shaikh Nasiruddin al-Albani are considered by this

school to be the final word on the authenticity of hadith.

43 Both Salafis and Zahiri Salafis prefer any hadith to any

rational method and often mistake patriarchal traditional

practices for Islamic law.44 Jihadi movements have utilized

the extremely literal interpretations of the Zahiri Salafi

to support their violent extremist positions.

43 The Science of Uloom al Hadith is far more extensive than can be discussed in this paper. While the Qur’an is accepted as absolutely authentic by all madhdhaahib, the authority of a hadith may be questioned. Those that are most accepted as being authentically from the Prophet are referred to as sahih, The methodology of Shaikh Albani is controversial. It relies solely on texts that rate the narrators of hadith as to their reliability, memory, and sectarian allegiance. Hence, there are two great works of Ilm al Rijal or the Knowledge of Men; one is Sunni and the other Shia. The great hadith scholar Shahrazuhri stated that it is impossible to rate hadith solely by Ilm al Rijal, and the Salafi scholar, Shaikh Ibn Uthaimin told Albani this method was not reliable or acceptable as the sole means for determining a sahih hadith.However, Zahari Salafi still continue to hold Albani as the foremost authority on the reliability and binding nature of hadith. 44 Ibid. 133, 149.

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The madhhab of Imam Shafi’I (769-820 CE) also rejects

certain rational methods such as istihsan and maslahah. Imam

Muhammad Idris Ash-Shafi’I lived in both Iraq and Egypt. His

book, Al-Risala, is the first systematic exposition of usul al-fiqh.

The priorities of the Shafi’I school are; Qur’an, Sunnah,

ijma of the companions, opinions of the Companions of the

Prophet, qiyas, and principles of continuity. 45 Imam Shafi’I

felt that istihsan and maslahah were bid’ah, lacking any backing

in the primary sources, the Qur’an and Sunnah, and came too

close to whimsical personal opinion. 46

Istihsan and maslahah have also been rejected by two of

the Shia schools, the Jafari School founded by Imam Jafar

As-Sadiq, and the Zaydi School founded by Zayd ibn Ali Zayn

al-Abidin. These schools accept the Qur’an, Sunnah,

consensus of the family of the Prophet, opinions of accepted

companions, and the presumption of continuity. However, the

other main Shia school, the Ibadi School founded by Abdullah

ibn Ibaad, accepts rational methods and lists the priority

45 Jasser Auda, Maqasid Al-Shariah as Philosophy of Islamic Law, 133.46 Kamali, Principles of Islamic Law, 251, Phillips, The Evolution of Fiqh, 83.

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of evidences as Qur’an, Sunnah, ijma, qiyas, presumption of

continuity, istihsan, and maslahah.47

The Islamic Law of Property

And it is He who created the heavens and the earth in truth. The when

He says “Be” then it is. His word in the truth. And His is the dominion on

the day that the Horn is blown. He is the knower of theUnseen and the

Witnessed, and He is the Wise, the Informed. 48

Is it not the case that to Allah belong whatsoever is in the heavens and the earth.

The Promise of Allah is Truth, but most of them do not know.49

47 Jasser Auda, Maqasid al-Shari’ah as Philosophy of Islamic Law, 67-68, 133.48 Qur’an al-An’am 6:73.49 Qur’an Yunus 10:55

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م ٮك ى ءات� ذ� ل� ا� هلل ال ا� ن� م� م م� وه� وءات� You give them something yourself out to the means which

Allah has given you.50

With these verses of the Qur’an, Allah informs humanity

that He is the vested owner of all that is in the heavens

and the earth, and all in between and any right or interest

a human has in property is contingent upon that ultimate

divine ownership.

The concept of dual ownership [human being-God] is one of the special

features of the Islamic doctrine of economics. Islam protects and endorses

the personal right to own what one may freely gain, though legitimate

means … . It is a sacred right. Yet human ownership istempered by the

understanding that everything, in the last analysis, belongs to God… .

What appears to be ownership is in fact a matter of trusteeship, whereby we

have temporary authority to handle and benefit from property. 51

50 Qur’an an-Nur, 24:33. Arabic version from ~~, One Umma Network, The Qur’an al-Kareem, http://www.quranexplorer.com/quran/ accessed 10 May 2009.51 Siraj Sait and Hilary Lim, Land, Law and Islam: Property and Human Rights in the Muslim World, (Zed Books, London 2006) 1. (quoting Abdul Rauf 1984:19).

25

This unique characterization of the ownership of

property is most difficult to analyze in comparison to

Western property law. Some have erroneously compared this

principle to the Western concept of Crown Land. Although,

as we shall see, this principle does support a state

interest in property, it does not support exclusive state

ownership. 52 Similarly, the attempt by some to read in

some form of socialist theory of ownership is equally in

error, for although subject to certain restrictions, the

right to private ownership is sacrosanct in Islam. 53

Walied El-Malik, the only author to seriously tackle the

Islamic theory of mineral ownership in Islam, characterized

the interest created by this dual ownership principle as

“individual ad interim ownership.”54 Sanhuri viewed Islamic

property law as a means of achieving social harmony. He saw

this dual principle as a form of joint ownership or shuyuu,

creating rights for the individual and certain duties

towards others. 55 52 Ibid. 69.53 Walied M.H. El-Malik, Minerals Investment under the Shari’a Law¸ (Graham and Troutman, London 1993) 47.54 Ibid. 45.55 Bechor, The Sanhuri Code, 129-145.

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If we examine the types of ownership, or mulk, created

by this dual divine/human ownership principle over the past

1400 years since the death of the Prophet (SAW), we find

five basic forms; commonage held by all humanity and

administered by the state (afraq), state owned property (miri),

charitable trust property (waqf), communally or jointly owned

property (shuyuu) and individual private ownership (mulk).

Humans acquire ownership in real property in a number

of ways.56 First, given that the ownership of all property

is ultimately with Allah, and that the principle of

ownership is generally a dual divine/human tenancy in

common, people have an interest in some property just by

being human. The Prophet Muhammad (SAW) is narrated to have

said, “The Muslims have a share in three things; water, fire

and pasture.” 57 These constitute arfaq (metruke) or commonage

and all humanity has a right to utilize them. An individual

or tribe may own a water well, but any thirsty passerby has

the right to request a drink therefrom. 58 Pasture land is56 Sait, Land, Law and Islam, at 11 -12.57? Abu’l-Hasan al-Mawardi, al-Ahkam as-Sultaniyyah: The Laws of Islamic Governance, trans. Dr.Asadullah Yate (Ta-Ha Publishers, London 1996) 265.58 al-Mawardi, al-ahkam as-Sultaniyyah, 260. Al Hasan narrated that a man came to some people and asked for a drink. They refused to give him

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also commonage and any herder may pasture his flock on such

land. Other arfaq include areas surrounding markets,

streets, the hareems of towns, and caravan stops; in other

words the easements and facilities necessary to enable

travel and commerce.59

The state can also acquire land through accretion,

annexation, expropriation, and conquest. Miri or hima is

state land held by the Amir al-Mu’mineen, or Commander of the

Faithful, the official title of the Empiric Khalifs. This

form of ownership developed under the Ottoman Turks, and is

derived from several earlier practices.60 Historically, hima

was a form of shuyuu or communal property owned by a Bedouin

tribe and reserved for the exclusive use of the members of

that tribe. When Abu Bakr confiscated the hima of the

Kindah tribe as punishment for its apostasy from Islam, he

transformed the land from hima of a tribe to hima of the

state, to be subject to the exclusive use of state citizens.

water from their well, and as a result he died. Umar ibn Khattab, the second Khalif al-Rashidun, then ordered the people to pay blood money (diya) in recompense.59 Ibid. 265.60 Sait, Land, Law and Islam¸ 65.

28

61 Abu Bakr also began the practice of creating hima

reserves for the public benefit from privately owned land

when he donated the reserve of al- Rabadhah for the use of

those persons entitle to zakat. 62 State-owned hima land

cannot be converted into private property, and may not be

reserved for the exclusive benefit of particular persons or

the rich. 63

Umar ibn Khattab extended the concept of state-owned

land even further when he included land gained by conquest

within it scope. Umar considered such land as belonging to

all Muslims. The state, then, had the duty to administer it

for the benefit of all Muslims for all times. To prevent

waste of such land, the state could then chose to divide it

amongst the soldiers as booty (ghaneemah) or it could be

returned to the original non-Muslim owners who then were

charged a kharaj tax.64 The Ottomans developed these concepts

along feudal lines, vesting all ownership of agricultural

land in the state; which, then, issued hujja or titles of

61 El-Malik, Minerals Investment under Shari’a Law, 38.62al-Mawardi, al-Ahkam as-Sultaniyyah, 263.63 Ibid. 263.64 al-Mawardi, al-Ahkam as-Sultaniyyah, 201.

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possession to individuals, or gave timar or iqta land grants

for military service.65

Communities can also acquire land in various ways.

Land can be owned communally under the doctrine of shuyuu by

families, tribes, villages and towns, and is referred to

generally as ‘musha land. 66 ‘Musha land includes tribal

hima, which, as mentioned above, are lands owned by a tribe

for the exclusive use of its members, 67 and the hareems of

villages and towns. These include public markets, streets

and easements and while they may be commonage as far as use,

they are owned by the residents, as tenants in common. 68

Disruption of shuyuu ownership by the colonial powers

left the state as the only repository of the public interest

in most Islamic states. Colonial powers imposed Western-

style landownership laws, which did not recognize shuyuu

ownership. 69 As a consequence, state governments took over

communal lands, preventing local control and any 65 Sait, Land, Law and Islam, 65.66 Ibid. 71.67 al-Mawardi, al-Ahkam as-Sultaniyyah, 260.68 Ibid.69 Bechor, The Sanhuri Code, 130. The Old Egpytian Code, based on French Civil Law, did not recognize family ownership or emphasized individualistic sole ownership. See also, Sait, Land, Law and Islam, 15.

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corresponding local benefit, and large tracts of land came

under the ownership of foreign land owners. 70 Although

Sanhuri took some pains to revive communal ownership in

Egypt, the influence of civil law state ownership ideas

still prevails.71

One recurring theme in the Islamic law of property,

which we can glean from the above discussion, is that

property should be utilized for the maximum benefit, and

even private individual acquisition of property must be put

to the most beneficial use. 72 Islam guarantees individual

private ownership. In his farewell sermon, the Prophet (SAW)

stated, “regard the life and property of every Muslim as a

sacred trust. Return the goods entrusted to you to their

rightful owners.” 73 Private ownership is encouraged and

so is private enterprise, however, the capitalist concept of

unfettered accumulation of capital is not. 74 An

70 Sait, Land, Law and Islam, 71-72.71 Bechor, The Sanhuri Code, 130-133.72 Sait, Land, Law and Islam, 11.73 Ibid. 16.74 Ibid. 11. The Qur’an states, “When the prayer is ended, then disperse in the land and seek Allah’s Bounty.” al-Jumu’ah 62:10, and theauthors of Land, Law and Islam, quote Gunter (2005: 4), “Islam is against those who accumulate property for the purposes of geed or oppression as well as those who gain through unlawful business practices.”

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examination of the means by which individuals acquire

property reveals an underlying principle of public benefit.

In American law, the goal of the policy of the free

alienability of land is to encourage productive use and

prevent waste. The same goal underlies land ownership in

Islamic law. Individuals can acquire property in three

ways; transfer of ownership by deed, contract, or gift;

succession through inheritance; or acquiring a thing “which

is free for the use of the public,” including revival of

mewat or “dead lands.” 75 The Islamic doctrine of reviving

mewat bears some resemblance to the American doctrine of

adverse possession. Based upon the hadith, “Whoever revives

a dead land , then it is his,” 76 the doctrine of revival of

mewat rewards sincere labor and beneficial use by vesting

ownership of uncultivated non-hima land to those who take

concrete steps to work the land, and irrigate and plant

crops. After reviving the land, the reviver has the full

75 ~~, The Mejelle: Being an English Translation of the Majallah el-Ahkam –I-Adliya and A Complete Code on Islamic Civil Law, trans. C.R Tyser, B.A.L. and others (The Other Press, Kuala Lumpur 2001) 203-204. 76 al-Mawardi, al-Ahkam as-Sultaniyyah, 252.

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rights of mulk, and he may utilize it as any other property.

He may even sell it. 77

The Shari’ah Law of Rikaz

Islamic law allows for the acquisition of real

property, but what comprises the bundle of rights referred

to as mulk? Because Allah (SWT) is the true owner, the

emphasis is on the right to use the property. The Prophet

said, “He who had land should cultivate it. If he will not

or cannot, he should give it free to a Muslim brother and

not rent it to him.” 78 And that ability to use the

property productively extends from “heaven to hell,”

similarly to the American ad colleum theory.

One of the things a property owner, be it the state,

the community, or the individual, has an interest in is the

produce of the land, be it from the surface or from beneath

the soil.

77 Ibid. 252-253.78 Sait, Land, Law and Islam, 12.

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As for the earth, we have stretched it out and cast therein firmly rooted mountains and caused to grow therein every measurable

thing. And we have made for you therein a livelihood and for those

for whom you are not providers. And there is not a thing but that with Us

are its depositories andWe do not send it down except according to a known

measure.79

As we noted, Islam rewards the person who contributes

his labor to produce from the earth with possession and use

of the land, but in recognition of Allah’s substantial

contribution, Allah has reserved a share. As for the

produce of the surface, Allah (SWT) has stated:

79 Qur’an Al-Hijr, 15: 19-21.

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It is He who produces gardens, both cultivated and wild, and palm trees

and crops of diverse kinds, and olives and pomegranates, both

similar and dissimilar. Eat of the fruits when they bear fruit and pay

their due on the day of harvest. But waste not in excess for Allah does not love

the wasters.80

Therefore, agricultural production is subject to either ushr,

a 1/10 share of the produce from un-irrigated land, or

khums, a 1/5 share of the produce from irrigated land.81

The “produce” buried beneath the surface of the earth is

called rikaz, from an Arabic root “to stand still.” 82 Rikaz

comes in two main types; kanz or buried treasure, and madin

80 Qur’an Al-An’am, 6:141.81 Dr. Yusuf al-Qaradawi, Fiqh az-Zakat: A Comparative Study, trans. Dr.Monzer Kahf, (Dar Al Taqwa, Ltd., London 1999) 224. Based on a hadith from theProphet narrated by Jabir, “On that which is watered by the sky, or springs or water running from the mountains, one-tenth is obligatory, and on that which is watered by carried water, a half-tenth is obligatory.” (Ahmad, Muslim, an-Nasa’I and Abu Dawud).82 Ibid. 275.

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or minerals. Both are subject to a special tax for the

benefit of the eight classes of zakat recipients, the khums,

based upon a hadith related by Abu Huraryrah, “One-fifth is

obliged on rikaz.” 83 ‘Amr ibn Shu’ayb also narrated that the

Prophet (SAW) said of all things found for which no owner

exists, “But for things found in deserted roads or villages,

are charged , as in the case of rikaz, one-fifth.84 This is in

addition to the regular zakat upon any profits obtained from

its sale.85

Therefore, based on evidence from both the Qur’an and

the Sunnah, it is well-established that any one who extracts

minerals from the earth, including oil and gas, must reserve

one-fifth of what he or she produces for the eight classes

of those eligible for zakat, as well as paying the regular

2.5% zakat on all profits obtained from the sale of the

minerals.86

83 Ibid.84 Ibid. 276.85 Statement by Dr. Mohamad Adam El-Sheikh (Personal email correspondence 31 January 2009).86 Zakat or the purification of wealth through giving in charity, is thethird pillar of Islam and all Muslims are obliged to pay 2.5% of their wealth to the eight classes of zakat recipients. These include the poor, destitute, travelers, persons whose hearts are to be reconciled, those in debt, those in slavery to gain their freedom, and those who

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The Fiqh of Rikaz:

Theories of Mineral Ownership According to the

Madhaahib

Based upon these primary sources and the principles

which they embody, the scholars of the madhaahib developed a

body of fiqh rules regarding the ownership of mineral under

Islamic law. Imam Abu Haneefah followed the letter of the

law described above and held that ownership of minerals

followed ownership of land. The surface owner is entitled

to the surface and all beneath the soil, and he is

responsible for paying the khums upon what he removes

therefrom. Creation of mining rights on private land, the

collect the zakat. Zakat may be also be spent in the Cause of Allah, a broad category that includes those seeking religious knowledge, those who are working to spread the message of Islam, and those fighting in its defense. See al-Qaradawi, Fiqh az-Zakat, 341. See also Fatwa of Imam Tantawi, Sheikh of al-Azhar, mentioned in M.S. Nahdet Misr, “Rikaz FatwaTriggers A Crisis Between Al-Azhar And Oil-Rich Countries”, Islam Story,<http://english.islamstory.com/> accessed 6 August 2008. Imam Tantawi’s fatwa, although merely confirming Shari’ah law, caused a big stir in theoil producing nations of the Middle East. The oil producing states havenot been paying the khums on rikaz.

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forerunner of modern oil and gas leases or concessions, is

subject to private agreement. In the case of state-owned

mira or hima, the investor negotiates an agreement with the

state. 87

The Shafi’I and Hanbali schools went further and

distinguished between unhidden (zahir) and hidden (batin)

minerals. 88 The Shafi’I school holds that unhidden minerals

are a form of commonage, and even if they are found on

private land, the private land owner does not have exclusive

ownership. The Hanbali school holds that all unhidden

minerals are commonage, and no matter where they lie, they

cannot be privately owned. Hidden minerals, however, are

subject to private ownership under both of these madhaahib.

The Hanbali school requires that if the land is mewat, the

owner must first cultivate the land before he can claim any

right to the minerals he extracts.89

Considering the fact that three of the historical

madhaahib support some form of private ownership of

87 El-Malik, Minerals Investment under Shari’a Law, 51. 88 Ibid. 50.89 El-Malik, Minerals Investment under Shari’a Law, 51-52.

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minerals, one may wonder why the contemporary schools have

not come out more strongly against state ownership. Part of

the answer lies in the historic position of the school of

Imam Malik.

Imam Malik, as we have mentioned, was the originator of

the doctrine of maslahah, and when he applied this doctrine

to the ownership of minerals, he determined that state

ownership was in the best public interest. As we have

noted, some scholars divided minerals into unhidden and

hidden. Unhidden minerals are available to all, for the use

of all, subject to the law of finding – not too dissimilar

to a certain aerolite in an English field. However, Imam

Malik felt minerals, hidden or unhidden, were for the

benefit of all Muslims and thus should be under control of

the Muslim state.90 He felt that “private ownership of

minerals [would] ultimately lead to improper exploitation of

natural resources and unfair distribution of wealth. 91 He

felt the state was in the best position to act as a fair and

neutral trustee on behalf of the community, looking out for

90 Ibid. 53.91 Ibid. 54.

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its best interest. Ideally, with a just and righteous

leader, that might have been a good idea, but reality is

often as bitter as qahwa coffee.

Theories of Mineral Ownership in Modern Islamic States

The twentieth century, with the demise of the Ottoman

Empire and cessation of the Islamic Khalifat, with the

influence of colonial powers, with the creation of modern

states, and with the discovery of oil, has set the stage for

state ownership of mineral resources in the states of the

Middle East and Africa. State ownership of minerals has

been justified by in various ways For the purposes at hand

we will focus on the influence of Western civil law

concepts, and the Islamic concepts of urf (local custom),

arfaq or metruke (commonage), hisbah, and maslahah mursalah (public

interest). In doing so we will need to examine how these

theories have been applied and whether such application is

valid under Shari’ah law.

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Western Civil Law

Under the influence of Sanhuri, many contemporary

Middle Eastern oil producing states have adopted civil codes

based on a hodge podge of legal influences. Although these

states often claim that their law is based on the Shari’ah,

the one exception seems to be mineral law. Walied El-Malik

notes that, [a] general survey of Muslim countries shows

that state ownership of minerals is proclaimed in the

constitution, in legislative acts or in executive decrees

having the force of law.” 92 These laws are based on the

laws of civil law jurisdictions such as France which

distinguish between surface ownership and subsurface

ownership. States, then, have absolute ownership in situ of

the minerals and permission is required to work them.93

The civil law doctrine of absolute state ownership of

minerals in situ is expressly prohibited under Shari’ah law

for two reasons. First, under the fiqh of rikaz, while a

surface owner has an interest in the minerals, actual

92 Walied El-Malik, “State Ownership of Minerals under Islamic Law,” (1996) 14 (No.3) J. Energy and Nat. Res. L 310, 319 93 El-Malik, Minerals Investment under Shariah Law, 49.

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ownership does not occur until the minerals are removed from

the earth. Allah then is entitled to His 1/5 share which

goes to the zakat recipients. Walied El-Malik notes, “the

adoption of the western concept of state ownership in the

ground is a clear violation of Islamic law…”94 Actual

ownership does not vest until the minerals are extracted and

Allah’s 1/5 share is paid. Secondly, the Qur’an clearly

states that the Muslims will not be successful until the

make the Shari’ah law the supreme law of the land.

Borrowing the law of others is not expressly prohibited, but

that law may not conflict with the Shari’ah, and the civil

law theories of Regalia crown land and absolute state

ownership do so conflict.

Urf

Urf has also been used to justify state ownership, and

more especially Western commercial customs. Urf is generally

viewed as secondary source, employed only in absence of

other evidences. Allah (SWT) revealed the Qur’an to

confirm, abrogate or suspend previous laws and revelations.

94 El-Malik, “State Ownership of Minerals under Islamic Law,” 319.

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95 However, unless expressly condemned, customs prevalent

at the time of Prophet (SAW) did become part of the Sunnah

through his tacit approval. 96 Urf or custom can be a source

of law, particularly in the area of mu’amalaat or

transactions, where it may be compared to the Western

concept of trade usage. Customs that do not contravene the

Shari’ah must be observed and will be upheld in a Shari’ah

court provided they constitute a common and recurrent

practice, exist at the time of transaction, do not

contravene a clear stipulation of the contract, and do not

violate a nass or clear text of the Qur’an or Sunnah. 97 For

example, deferred mahr98 is now a common marriage custom in

many countries, including the United States and it has been

allowed by contemporary scholars, although it is not

expressly mentioned in the texts. However, disinheriting

95 Ibid. 230.96 Ibid. 285.97 Ibid. 28798 Mahr is not dowry or dower as some have labeled it. Mahr is wealth given to the bride, not her family, father or brother. It is given to the girl as consideration for the contract of marriage and may be viewedas compensation for sex. If the marriage is not consummated before the husband divorces her, she is only entitled to a half of the mahr, whileif the marriage is consummated, she is entitled to the entire mahr. AbdurRahman I. Doi, Shari’ah: The Islamic Law, (TaHa Publishers, London 1984) 159-163.

43

female heirs, a custom among certain Bedouin tribes is an

invalid custom as it violates a clear nass. 99 Only the

Hanafi and Maliki schools accept urf as a valid source of

law, 100 however because the Hanafi school was favored by the

Ottoman Turks, urf has influenced many modern legal codes in

the Middle East. 101

Some Middle Eastern states, such as The United Arab

Emirates, have used urf, and particularly lex mercantorio or

international trade law as justification for state ownership

of oil and gas. Given the fact that such clear primary

sources exist, permitting private ownership, urf cannot be

used to overcome the clear nass. Moreover, the use of Western

custom finds no justification or applicability under

Shari’ah law.

Afaq or Metruke

Others have justified state ownership under the

doctrine of arfaq or commonage. As we have noted previously,

99 Kamali, Principle of Islamic Law, 287.100 Jasser Auda, Maqasid Al-Shari’ah as Philosophy of Islamic Law, 133.101 Bechor, The Sanhuri Code, 55.

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commonage is the property of all mankind and any person may

make free use of it. However, it is not clear that mineral

constitute arfaq. The Prophet Muhammad (SAW) is narrated to

have said, “The Muslims have a share in three things; water,

fire and pasture.” 102 While it is fairly clear why these

three things are commonage – people or animals or both need

them to survive – it is not clear that on the basis of qiyas,

oil and gas fall into the same category. If oil and gas

were truly commonage then no one could make a profit off of

them. Like unhidden minerals, under Shafi’I or Hanbali fiqh,

no one would be able to make them private property and no

one could sell them for profit. Therefore, arfaq does not

provide a legitimate basis for state ownership.

Hisbah

Another theory used to justify state ownership is the

doctrine of hisbah or the obligation of the state to protect

the public order. Hisbah stems from a root meaning “to take

account,” and refers to accountability for ones actions.

102 al-Mawardi, al-Ahkam as-Sultaniyyah, 265.

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Hisbah underlies the police powers of the Islamic state and

is derived from the Qur’anic command to command the good and

forbid the evil.103 The muhtasib, or person charged with

protecting the public order, is “to watch out for manifest

incidents of evil, so that he may denounce them, and to

investigate those acts of good behavior which have been

abandoned, so that he may command that they be renewed…”104

This doctrine underlies Saudi mineral policy.

The state is entitle by law to have the ownership of minerals of all types

and composition, whether they are above or underneath the land surface,

because the state is entrusted with the public wealth and is responsible for the

preservation of the national income. Ownership of minerals cannot be made

dependant on land surface ownership, because this will result in breaking

up the ownership of minerals as a result of the land surface being owned by

more than one party. This should lead to improper exploitation of

of minerals and can even make exploitation impossible in some cases.

Furthermore, mineral exploitation could simply be left contingent upon

individual owner’s wish and will, but proper exploitation of minerals

103 Ibid. 337. “And so let there be from amongst you a group who cal to the best and command the good and forbid the evil.” Qur’an Al-Imran 3:104.104 Ibid.

46

requires the setting up of a general policy to exploitminerals. Further,

if we can allow minerals to be considered as wealth without specific

ownership, then that would result in weakening the state’s ability to supervise

and monitor the exploitation of these minerals and would make it

possible for any one who discovers then to claim their ownership

regardless of whether he has the skill to exploit them or not and

regardless of whether or not he has the necessary financial means to

do so. 105

A similar motivation underlies state ownership of

minerals in the Republic of Iran. The Iranian Constitution

purports to set up a government based upon Islamic law, in

particular the Jafari School of Shia thought.106 “Legislation

setting forth regulations for the administration of society

will revolve around the Koran and the Sunnah.”107

Accordingly, it is the duty of the Islamic government to furnish all citizens with equal and appropriate opportunities, to provide them with work, and to satisfy

105 El-Malik, Minerals Investment under Shari’a Law, 55-56.106 Constitution, Islamic Republic of Iran, Art 12 [Official Religion], International Constitutional Law,< http://www.servat.unibe.ch/law/icl/index.html> Accessed 10 May 2009.107 Constitution, Islamic Republic of Iran, Preamble, The Form of Government in Islam.

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their essential needs, so that the course of their progress may be assured.108

Based on this duty, the Iranian Constitution vests the

public sector with ownership of “major mineral.”109

While the state may have a duty to command the good and

prohibit evil, this duty need not be served only by state

ownership. Under the logic of the Saudi law, the state

should also own markets and businesses to maximize their

income potential and prevent business fraud or the

dissolution or partitioning of beneficial businesses upon

the death of partners. Hisbah may support the exercise of

police powers through regulation, conservation laws,

unitization, pooling and so on, as we find in the America

where mineral ownership is private, but it does not support

state ownership. 110

Maslahah Mursalah

108 Ibid. Preamble, The Economy is a Means, Not an End.109 Ibid. Art. 44 [Sectors].110 Walied El-Malik makes a similar argument by distinguishing between state sovereignty and state ownership. “State Ownership of Minerals Under Islamic Law,” 311-312.

48

Similar to the Western concept of public interest,

maslahah mursalah refers to the

consideration of a benefit or prevention of a harm in a

manner harmonious with the objectives of the Shari’ah. It

is distinguished from hisbah in that hisbah refers to the

obligation to protect the public order, while maslaha refers

to a more general principle of compelling public interest

which permits the state to restrict private action in the

first place. Synonymous with istislah, maslahah is not

established by any text of the Qur’an or Sunnah, and it is

not accepted by Imam Shafi’I or by the Hanafi, Jafari,

Zaydi, Wahhabi or Salafi schools.111 However, maslahah is an

important source of law in the school of Imam Malik, and it

was Imam Malik who first developed the theory.112

Despite some scholars who feel that the well-known

hadith, laa darar wa laa daraar fil Islam (no harm and no

reciprocating harm in Islam) provides textual support for

the doctrine of maslahah, most scholars trace the concept to

the Sahabi or companions of the Prophet (SAW), and

111 Jasser Auda, Maqasid Al-Shari’ah as Philosophy of Islamic Law, 133.112 Phillips, The Evolution of Fiqh, 72.

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particularly to the acts of the khalif al-rashidun. Abu

Bakr (RAA), for example collected the scattered records of

the Qur’an into one collection in order to preserve it after

the death of a large number of the men who had memorized it.

Umar ibn Khattab suspended the punishment for theft during a

time of famine. Both actions were taken in the public

interest.113

Maslahah, then, resembles the concept of a compelling

state interest in Western law. Maslahah must be genuine as

opposed to speculative, and it must be generally for the

benefit of the people as a whole. It must not contradict a

clear nass or text and according to Imam Malik, it must be

rational and acceptable to people of sound intellect. 114

Although similar to the Western concept of compelling state

interest, maslahah bears one important difference, it is not

comparative. In maslahah there is no balancing of interests.

The state interest is considered so compelling to

presumptively trump any other interest.

113 Kamali, The Principles of Islamic Law, 270.114 Ibid. 274-275.

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Imam Malik justified state ownership of minerals under

this doctrine and his views have influenced contemporary

code writers as well. The Saudi law, Iraqi Constitution of

1965 and the Egyptian Constitution of 1964 all assume the

legitimacy of state ownership. 115 However, Imam Malik

justified state ownership because he felt that only the

state could ensure the protection of the public rights in

mineral wealth, such as the khums and zakat. Reaction to a

fatwa issued by Sheikh Tantawi, the Sheikh of Al-Azhar,

reminding the oil producing states of the 1/5 share required

to be set aside under the law of rikaz shows that despite lip

service to Maliki thought, it is not maslahah that underlies

these codes, but the very greed and whimsical behavior Imam

Malik’s reasoning was meant to prevent.116

The Emerging School and its Minhaj of the Maqaasid

115 El-Malik, Mineral Investment Under the Shari’a Law, 55-56.116 M.S. Nahdet Misr, “Rikaz Fatwa Triggers A Crisis Between Al-Azhar And Oil-Rich Countries”, Islam Story, <http://english.islamstory.com/> accessed 6 August 2008.

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Given the present waste of wealth perpetrated by the

oil producing states of the Middle East, and the fundamental

importance of legitimizing laws of the region by compliance

with Shari’ah principles, we turn now to an emerging school

of thought utilizing a methodology or minhaj focusing on the

maqaasid or objectives of the Shari’ah law to find a new and

more beneficial manner of conceptualizing mineral ownership

under Shari’ah law.

The emerging school is actually not new. It arose from

the Maliki school, wherein lies its importance to our

present discussion. Considering the influence of the Maliki

school in the legitimization of state ownership, it is from

this school that any counter methodology must arise.

Although the idea of the maqaasid al-Shari’ah or objectives

of the Shari’ah law goes back to as early as Abd al-Malik

al-Juwayni (d. 478H/1185CE),117 the scholar most associated

with its development was the great Andalusian scholar, Abu

Ishaq Ibrahim ibn Musa al-Shaatibii (d.790H/1388CE).118 In

117 Jasser Auda, Maqasid As-Shari’ah as Philosophy of Islamic Law, 2.118 Muhammad Khalid Masud, Shatibi’s Philosophy of Islamic Law, (Islamic Research Institute, Islamabad 1995) 2.

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his book, al-Muwaafaqaat, he expounded on the concept of

maslahah and then introduced the concept of the maqaasid or

overarching objectives of the Shari’ah as a means of

balancing the interests, both public and private, to achieve

the more just result. As we noted above, maslahah is

compelling public interest, the maqaasid provide the

criteria for balancing that public interest with all the

other interests present in any given transaction.

The traditional exposition of the maqaasid includes

three basic levels; daruraat (necessities), hajiyaat (needs),

and tahsiniyyaat (things that make life more beautiful). Like

Maslow’s needs, the daruraat are essential for human life

itself and include nurturing of faith, nurturing of life,

nurturing of property, nurturing of aql or reason, and

nurturing of lineage and honor.119 Modern lists have also

included justice, human rights and freedom.120 The hajiyaat or

needs include those things which are not essential for human

life, but nonetheless, are compelling in nature. These

119 Jasser Auda, Maqasid As-Shari’ah as Philosophy of Islamic Law, 3-4.120 Ibid. 5. The author provides an excellent discussion of the contributions of modern thinkers such as Ibn Abshur, Rashid Rida, Taha al-Alwani, and Imam al-Qaradawi to maqaasid theory.

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include buying and selling, renting, partnerships, and

sharecropping, as well as other similar transactions.121

Finally, tahsiniyyaat contribute to noble character traits and

encourage good deeds.122 These might correspond to Maslow’s

classification of those needs which encourage self-

actualization. 123

While the maqaasid, as classically approached, seem to

focus on the individual, the modern approach has been to

balance these individual-based maqaasid with the public or

social based maslahah. The influential scholar, Ibn

Taymiyyah added al-maqaasid al-‘aliyyah or higher objectives and

al-maqaasid al-kulliyyah or universal objectives. 124 The

Tunisian scholar and modern reviver of the maqaasid, Ibn

Abshur, emphasized the social component. “The preservation

of these universals pertains to the individual members of

the Ummah (Muslim community) and, even more importantly, to

the Ummah as a whole. Hence, each of these maqasid has one 121 Gamal Eldin Attia, Towards Realization of the Higher Intents of Islamic Law: Maqasid al-Shari’ah: A Functional Approach, (International Institute of Islamic Thought, Herndon 2007) 80.122 Ibid. 81.123 Jasser Auda, Maqasid As-Shari’ah as Philosophy of Islamic Law, 3-4.124 Attia, Towards Realization of the Higher Intents of Islamic Law: Maqasid al-Shari’ah: A Functional Approach, 79.

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aspect that pertains to individuals and another that

pertains to the Muslim community.”125 The aim is for the

well-being and integrity of the individual, the collective

and the civilization.126

Theories of Mineral Ownership under the Emerging Minhaj ofthe Maqaasid

Utilizing this emerging minhaj focusing on the maqaasid

al-Shari’ah, we move now to reexamine the issue of mineral

ownership under Shari’ah law. Protection of private

property rights is one of the five essential or daruriyyah

protected by the objectives of the Shari’ah, and being a

necessity, it deserves the highest level of protection. For

the state to infringe or restrict the rights associated with

private ownership, it must have a very compelling interest

and no alternative to what amounts to expropriation without

just compensation must be available. Simply put, no

justification put forth by modern oil producing states in

the Middle East and Africa have risen to this level. Not

125 Ibid. 81.126 Ibid. 82.

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only is expropriation without compensation forbidden in

Islam, 127 but no contemporary oil producing state has shown

it is actually acting in the best interest of its citizens.

On the other hand, the state, with its police powers, it the

most likely candidate to enforce conservation, environmental

and regulatory laws needed to best take advantage of mineral

wealth. But exercise of these powers does not require state

ownership, as the American model has born out.

So what is the best way to balance all the interests in

society? First we need to remember what those interests

are. Allah (SWT) has an interest, and although the state

might think it has a duty to protect that interest, in

reality it does not. As Abdul Muttalib noted when Abraha

was about to invade Makkah on the eve of the Prophet’s

birth, Allah’s house belongs to Allah. Just as a human owner

looks after his property interest, Allah is more than

capable of looking after His. So the only relevant

127 El-Malik, “State Ownership of Minerals Under Islamic Law,´322-323. Ghasb” or usurpation is forbidden under Shari’ah law and the usurped person is entitled not only to restoration of his property or compensation if that is not possible, but also the value of any beneficial use made of the property during the period of usurpation.

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interests are human; those of all of humanity, of states, of

communities and families and of individuals.

One way in which we can improve the balance between the

maslahah of society and the needs of individuals, is to

revive communal, tribal and family ownership. Although

Sanhuri made an effort to do so, no modern oil producing

state has taken this form of ownership seriously. We must

not allow Western aversion to this form of ownership cloud

our judgment and prevent us from utilizing a valuable

balancing tool between society and individual.

Taking in to consideration then, the maqaasid al-Shari’ah,

and the need to balance all the interests present in

society, we put forward the following suggestion for mineral

ownership under Shari’ah law. First, if the land is

individually privately owned, as in the school of Abu

Haneefah, the ownership of the subsurface follows the

ownership of the surface. Private owners are free to sell

oil and gas development leases to oil and gas companies much

as they do in America. Despite occasional bookkeeping

hassles, this arrangement has not killed anyone in the

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United States, and many have done quite well for themselves.

And Americans have not been deprived of any oil and gas for

their daily energy needs. Secondly, if land is held by

families, tribes or communities as jointly owned land or as

hima, then the family, tribe or community has the right to

contract for the development of the oil and gas. And

finally, the state will continue to have the right and duty

to beneficially develop state owned hima and miri.

This schema balances the needs of society in the

following manner. First, any minerals extracted from the

earth are subject to the khums of 1/5. This means that one

in every five barrels of oil is to be reserved for the zakat

recipients. This can either be reversed in kind or sold and

the proceeds paid into a fund for the zakat recipients.

Then, private or communal owners will be entitled to bonus,

rent and royalties for which they have negotiated as part of

their oil and gas leases permitting oil companies to develop

their mineral estates. Considering that the usual royalty

is 1/8 or one in every eight barrels, this would provide a

significant income for local tribes and communities. The

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tribes and communities would then be responsible to their

own people for utilizing that wealth for the benefit of the

local people. In countries like Nigeria or Sudan, where oil

revenues are only benefiting elites in the big cities and

not the local communities from where the oil is being

extracted, this policy would go a lot further to reducing

the imbalances of wealth and power. Finally, profits made by

oil and gas companies would also be taxable under zakat law

at 2.5%, bringing further revenue to bear on issues of

poverty and social benefit.

The state, meanwhile, would retain regulatory

sovereignty to ensure conservation, environmental

protection, and tax revenues. And nothing would preclude

the state from running state-owned development companies,

refineries and other mineral related businesses.

Conclusion

Oil is a finite resource. Many Middle Eastern

countries have long begun to plan for the eventual

exhaustion of their reservoirs of oil and gas. Such long

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term planning is laudable, but for too long, the promise of

oil has been wasted. Saudi Arabia ‘s export revenues in

2008 were estimated to be $311.1 billion with 90% coming

from oil products. 128 Nigeria’s revenues were $24.5

billion;129 Sudan’s revenues for October 2008 alone were $608

million;130 and the U.A.E.’s revenues were $100 billion. 131

These four countries cover the gamut of the promise and the

lack of fulfillment of the promise. The U.A.E has poured

oil wealth into projects designed to provide future income.

132 Saudi Arabia has poured millions into personal palaces.133

And the wealth generated in Nigeria and Sudan has been

128 C.I.A., The World Fact Book, <https://www.cia.gov/library/publications/the-world-factbook/geos/sa.html#Econ>, accessed 10 May 2009. 129 Revenue Watch Institute, <http://www.revenuewatch.org/our-work/countries/nigeria.php> accessed 10 May 2009.130 ~~, “Sudan’s Oil Revenue for February and March Hits Record Low,” (Sudan Tribune, Khartoum, 6 May 2009).131 Tamara Walid, “UAE Oil Revenues to Exceed $100bn in ’08,” Arabian Business.com, 20 July 2008, < http://www.arabianbusiness.com/525254-uae-oil-revenues-to-exceed-100bn-in-08>, accessed 10 May 2009. 132 Barry Gimbel, “The Richest City in the World,” Fortune/CNN Money.com,<http://money.cnn.com/magazines/fortune/fortune_archive/2007/03/19/8402357/index.htm> accessed 10 May 2009; Government of Dubai, Department ofTourism and Commerce Marketing, <http://www.dubaitourism.ae/> accessed 10 May 2009. 133 Aislinn Simpson, “Saudi Prince Buys World’s First ‘Flying Palace,’” Telegraph.co.uk, 13 Nov. 2007, <http://www.telegraph.co.uk/news/worldnews/1569154/Saudi-prince-buys-worlds-first-Flying-Palace.html>, accessed 10 May 2009. The prince purchased a VVIP double-decker airbus for $319million.

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poured into the pockets of strongmen and into the torture

and death of millions of people. 134

Long touted as salvation for the Muslim world,

Westernization and its attendants Democracy and Capitalism

have failed to produce anything more than corruption and

even more dire poverty. Communism too has failed. In their

wake, many have turned to Islam. Distant memories of former

glory as well as utter desperation have motivated this

return. But does Islam hold any hope? It may, if modern

Muslims can manage to cut through the cobwebs of stagnate

time and tradition, and discover the policies, doctrines and

goals Allah set forward 1400 years ago in the Qur’an and

Sunnah; and then … implement them.

134 Steve Inskeep, “Deadly Oil Skirmish Scars Nigerian Town,” NPR, <http://www.npr.org/templates/story/story.php?storyId=4797925> accessed 10 May 2009; Egbert Wesselink and Evelien Weller, “Oil and Violence in Sudan Drilling, Poverty and Death in the Upper Nile State,” Toward Freedom, 12 Apr. 2007, <http://towardfreedom.com/home/content/view/1016/63/> accessed 10 May 2009.

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