Modern Perspectives on Islamic Law

Modern Perspectives on Islamic Law

Ann Black, Hossein Esmaeili and Nadirsyah Hosen

This well-informed book explains, reflects on and analyses Islamic law, not only in the classical legal tradition of Sharia, but also its modern, contemporary context. The book explores the role of Islamic law in secular Western nations and reflects on the legal system of Islam in its classical context as applied in its traditional homeland of the Middle East and also in South East Asia. Written by three leading scholars from three different backgrounds: a Muslim in the Sunni tradition, a Muslim in the Shia tradition, and a non-Muslim woman – the book is not only unique, but also enriched by differing insights into Islamic law.

Chapter 8: Property rights, inheritance law and trusts (waqf)

Ann Black, Hossein Esmaeili and Nadirsyah Hosen

Subjects: asian studies, asian law, economics and finance, islamic economics and finance, law - academic, asian law

Extract

Property rights and interests, particularly land interests, and legal principles and laws regulating the use and ownership of land are important features of every legal system. According to one commentator: From the earliest settlement until the industrial revolution the economic basis of society was agrarian. Land was wealth, livelihood, family provision, and the principal subject-matter of the law. To begin with, moreover, land was also government and the structure of society. In modern legal systems, such as the common law and civil law systems, property law has always been a major area of law, and many legal and philosophical principles have been developed based on the notions of property and ownership. Owing, however, to the development of intellectual property rights in recent decades, traditional real property interests may not now be as important as they were in the past. Furthermore, property institutions, including trusts, are important features of common law legal systems. According to Blackstone: There is nothing which so generally strikes the imagination, and engages the affections of mankind as the right of property; or that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe. In both natural law and positivist legal theories the concept of property is considered significant. According to natural law theory, property is approached as a ‘state of nature’ and is considered a natural right. Alternatively, legal positivists, such as Jeremy Bentham, believe that ‘property and law are born together and die together’.

You are not authenticated to view the full text of this chapter or article.

Elgaronline requires a subscription or purchase to access the full text of books or journals. Please login through your library system or with your personal username and password on the homepage.

Non-subscribers can freely search the site, view abstracts/ extracts and download selected front matter and introductory chapters for personal use.

Your library may not have purchased all subject areas. If you are authenticated and think you should have access to this title, please contact your librarian.

Further information