PROPERTY

A source of conflict in the pre-Islamic Middle East, the concept of property remained controversial after the rise of Islam. From the seventh century to the modern era, Islamic rulings, opinions, and institutions designed to broaden private ownership rights coexisted with policies that undermined them. Initially, the consequent material insecurity was nothing unusual by the prevailing global standards. However, the gradual strengthening of private property rights in western Europe caused the Islamic world to sink below the standards of the day.

In the sixteenth and seventeenth centuries European travelers to the Middle East found signs of weak property rights, such as residential styles designed to conceal wealth. For their part, eighteenth- and nineteenth-century Middle Eastern visitors to the West were favorably impressed by the material security afforded to individual Europeans. Significantly, the Middle East's magnificent architectural heritage consists almost exclusively of communal structures. Had the region made early progress in broadening the scope of property rights, its surviving premodern structures would have included many private residences, as in western Europe.

Islam has influenced the evolution of ownership rights through several mechanisms, some of which operated at cross-purposes. Verse 7:128 of the Qur˒an, which holds that all property belongs to God, would seem to rule out all forms of private ownership. In keeping with this implication, from the early caliphs to monarchs of the nineteenth century, successive Muslim rulers routinely confiscated uncultivated lands. Though frequently defended in Islamic terms, these expropriations also accorded with Hellenic and Persian traditions that treated the state as the ultimate owner of all land.

Like rulers everywhere, premodern Muslim rulers generally understood that threats to the material security of individuals, including confiscations and arbitrary taxation, reduced government revenue by harming incentives to produce. So Islamic history offers many examples of rulers alleviating the tax burden of a region or class of subjects with the express purpose of stimulating economic activity. However, not until modern times have there existed effective legal safeguards against state-initiated or condoned predation. A ruler urgently in need of resources to run a military campaign or overcome a political challenge could generally prey on his subjects without legal hindrance. Muslim writers of the medieval Middle East, including Maqrizi and Ibn Khaldun, observe that distressed rulers made it a habit of grabbing the visible possessions of the wealthy, including estates of the deceased. Such expropriations were often carried out under the pretext that the seized assets had been acquired illegally.

From the fact that rulers felt a need to justify their predatory acts, one may infer that subjects expected them to respect established use rights. This expectation was based partly on the principle that individuals are entitled to private ownership (milk). Though at odds with the principle of divine ownership, private ownership thus remained a concept recognized by Islamic law. Moreover, even as Muslim rulers pursued policies harmful to material security, Islamic courts routinely enforced individual property rights.

Another mechanism through which Islam weakened private ownership rights was grounded in zakat, an institution designed to prevent opportunistic taxation. Mentioned in the Qur˒an and implemented by the Prophet, the zakat system imposed fixed tax rates that varied across income and wealth categories. For example, the rate on agricultural income was 10 percent in naturally irrigated areas but 5 percent in areas irrigated artificially. During the Prophet's lifetime, this fixity served to block attempts at radical redistribution. At the same time, it precluded the establishment of general principles for amending zakat rates and broadening the system's coverage. Consequently, the zakat system soon became outdated, allowing later rulers to impose taxes arbitrarily and opportunistically. The rate schedule of the agricultural tax known as ˓ushr, though patterned after the zakat requirements on land, has varied greatly across time and space. In any case, this tax has often been accompanied by sundry other taxes without any basis in Islam's traditional sources of authority. In facilitating the variability of taxation, the zakat system unintentionally contributed to the precariousness of individual property rights.

A creative and effective response to the weakness of these rights was the waqf system. A waqf is an unincorporated trust established under Islamic law by an individual for the provision of a designated service in perpetuity. Its assets are considered sacred. From the eighth century onward, it served as an increasingly popular device to protect personal wealth by diminishing the likelihood of confiscation. Right up to modern times, Muslim rulers were much less likely to seize waqf-owned assets than they were to confiscate private property, for they sought to avoid developing a reputation for impiety.

Although establishing a waqf usually required a commitment to provide social services, it came with the privilege of appointing oneself as its mutawalli (trustee and manager). At some cost, therefore, a waqf founder was able to secure a portion of his wealth for his own and his family's benefit. If the waqf system became much more important to the premodern Middle Eastern economy than trusts were to the economies of western Europe, the reason is that in the Middle East private property rights were clearly weaker and, hence, the need for wealthy shelters measurably greater.

A salient characteristic of Middle Eastern history is the absence of broad movements to strengthen private property rights. It offers nothing akin to the protracted European movements that limited the economic powers of kings and queens. The very availability of the waqf option helps to explain this difference. It dampened collective action on the part of wealth holders likely to benefit from stronger property rights. Formal property rights arrived in the Middle East in the nineteenth century through sweeping economic reforms based largely on European models. Property rights are broadly recognized in the modern civil codes of Middle Eastern countries.

See alsoEconomy and Economic Institutions ; Waqf .

BIBLIOGRAPHY

Kuran, Timur. "The Provision of Public Goods under Islamic Law: Origins, Impact, and Limitations of the Waqf System." Law and Society Review 35 (2001): 301–357.

Mayer, A. E., ed. Property, Social Structure, and Law in theModern Middle East. Albany: State University of New York Press, 1985.

Timur Kuran