Question:
The
following text is found in the draft constitution:
"Article
140 - Every individual from the individuals of the community (ummah)
has the right to derive benefit from public ownership. The State has no right
to allow any particular individual to possess, own or utilise publicly owned
properties to the exclusion of other citizens."
In
our books we find the hadith, "The
Muslims are partners in three..." as well as the hadith, "The people are partners in three..."
In light of this, the question is as follows.
The
article says that benefit from public property is for the individuals of the
Ummah, not for every citizen, or for the individuals of the society. As for the
ahādith one mentions ‘Muslims' and the other mentions ‘people'. Thus is the
case that we have used the principle of interpreting the general in light of
the specific and thereby understood that the intent of ‘people' in one of the
two narrations is ‘Muslims', and hence there is no right for the Ahl al-Dhimmah
in the public property (except for the public utilities, as the evidences
clearly indicate), or is there some other understanding in this issue? Barak Allahu feekum.
Answer:
1- Article
140 reads, "Every
individual from the individuals of the community (ummah) has the right to derive benefit from
public ownership. The State has no right to allow any particular individual to
possess, own or utilise publicly owned properties to the exclusion of other
citizens."
The word ‘Ummah' is
of those words which have more than one meaning [mushtarak]. It is used to refer to one person,
a community, the Muslims, the citizens, the deen, etc. The intended meaning in
a given usage is determined by an indication [qarīnah].
In the text of the
above article we intended by ‘Ummah' the meaning of ‘citizens' [ra'iyyah], and this intent
is indicated explicitly; we mention at the end of the article, "to the
exclusion of other citizens [dūna
bāqi al-ra'iyyah]".
This is with respect
to the understanding of the text of the article.
As for the
understanding of the two ahadith and the derivation that ‘citizens' are
intended by the word ‘people' and the word ‘Muslims' in these ahadith, it is as
follows:
2- Specification [takhsīs] is clarification [bayān], thus if a general expression
is found as well as a more general expression, the matter requires
consideration: if the first general word is a clarifier for the second more
general word than the former specifies the latter; if not, then both remain
general and in need of clarification by specification and the former is an
individual case [fard]
of the latter (the general is merely one case of the more general).
In the two ahādīth
‘people' is more general than ‘Muslims'. However both texts are in need of a
further clarification. This is because if you say that ‘Muslims' specifies
‘people' than the legal rule [hukm
shar'i] is that the public property is for Muslims, and this is not
the case because it is not for all Muslims. The Muslim who lives outside the
Islamic State, that is, is not from its citizens, has no share in the public
property of the state, and this is clear.
Therefore we hold
that ‘people' is a general word and ‘Muslims' is one case from its cases [afrād]. In seeking the
clarification of both words we find the hadith of Burayda, "...then call them to move from
their land to the land of the Muhājirīn [dar al-Muhājirīn], and inform them that if they do so
then their rights and responsibilities are like those of the Muhājirīn, and if
they refuse to move then inform them that they will be like the Bedouins of the
Muslims having the responsibilities of Muslims but having no share in the fay' and ghanīma unless they fight with the
Muslims." This hadith is explicit in that whoever does not
move to dar al-Islam
and carry the citizenship of the state then he has no right in the rights of
the citizens even if he is a Muslim. Thus both the words ‘people' and ‘Muslims'
are specified by the hadith of Burayda by ‘citizens' [ra'iyyah].
Thus we understand
the legal rule [hukm shar'i],
namely that the public property is for those who live in dar al-Islam and hold
citizenship.
3- This is with respect to the derivation
of the legal rule from the two ahadith which you mentioned in the question, and
it is as follows:
The hadith using the
word ‘people' is general.
The hadith using the
word ‘Muslims' is one case from the cases of the general.
The hadith of Burayda
specifies the general ‘the people' such that its intent is only those who are
citizens, regardless of whether they are Muslims or non-Muslims.
4-
Notwithstanding the above there are
explicit texts which apply to the Ahl
al-Dhimma and show that they have a right in the public property.
The roads and pathways [turuq]
are from the public properties and al-Tirmidhi relates a hadith from Aa'isha
(ra) that she said, "The
Messenger of Allah صلى
الله عليه وسلم had two heavy qitri garments. When he would sit and sweat
they would weigh heavily on him. When bazz cloth came from al-Shām with a Jewish
man, I said, ‘Perhaps you should go to him and buy two cloths from him to be
paid for at a later date.'". This Jew who lived in the
Islamic State used the roads of the Muslims for his trade, and these are from
the public properties.
Further the
Companions consented that the Christians of al-Sham could drink from the rivers
of al-Sham just as the Muslims did; so too those who remained upon
Zoroastrianism in Irāq and Bahrain. Similarly, the Copts in Egypt could drink
from the Nile and water their animals. And all of them used to gather firewood
from the forests.
Or,
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