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(5) Give and Take:
The rule that governs giving and taking is governed by the principle: "What is haram to take is haram to give".
As a corollary of the above, another rule is that "What is haram to do is haram to demand".
The rule along with its corollary is relevant not only for financial transactions like taking of interest, and illegal gratifications etc., but also for non-financial transactions like adopting professions that are rejected in the Sharia. The import of these rules is clear for individuals but requires some elaboration in regard to actions and policies of the government. It may be argued that the injunctions of the Sharia are addressed to individuals and have no effect on corporate bodies and government. Thus what is obligatory for the Muslim individuals is not binding on Muslim governments. For example, Muslims are required to offer prayers, pay Zakat and perform hajj but the government as such is not supposed to do nor can: it do all that. Similarly it is the individuals who are required to refrain from engaging in interest but not the government or other legal persons. But the argument can be rejected on ground of the following Quranic verses:
Those who, if We give them power in the land. Establish worship and pay Zakat and enjoin virtue (maruj) and forbid iniquity (munkar) (22:41). All hath promised such of you as believe and do good works that He will surely make them to succeed (the present rulers) in the earth even as He caused those who were before them to succeed (others); and that He will surely establish for them their religion which He hath approved for them, and will give them, in exchange safety after fear. They serve Me. They ascribe nothing as partner unto Me. Those who disbelieve henceforth, they are the miscreants. Establish worship and pay Zakat and obey the messenger that haply ye may find mercy (24:55, 56).
These verses not only point out the obligatory 'functions of an Islamic state but also emphasize the importance of making religious norms and values prevail in the human life. An Islamic government, for obvious reasons, may not be able to perform the rites of worship. It is, however, under the obligation to establish institutions that are conducive to their performance by all those Muslims who are capable of so' doing. Moreover, its duty is to ensure that virtue, ma'ruf is enjoined and vice, munkar is being forbidden (Q. 22:41). Hence the government. may not legalize for itself an act which it prevents under its jurisdiction. This is what has been laid down in the above quoted rules. The Quran and the Hadith disapprove incomes arising out of interest, illegal gratification, or obscene professions, and of all those acts that are prohibited.(S3) As a consequence, it is obligatory for the Islamic state to ban the sources of such incomes. In case the government bans these incomes and professions for individuals, but exempts itself from doing so, the ultimate benefit and effect of the same will directly and indirectly pass on to those individuals because the government expends its incomes on their welfare. This will be in addition to creating the undesirable moral, spiritual and social effects that such practices are likely to bring about.
It needs to be pointed out that the above mentioned rules lay down the practical scope of the unlawful items and acts. In case of lawful acts, however, a distinction has to be made between the rights and powers of the government (Imam) and those of individuals. It is the prerogative of the Islamic government only to levy and collect taxes but not of individuals. The (Imam) alone can declare Jihad against an enemy but not an individual. Hudud can be enforced only by an Islamic government, not by individuals.
(6) The Rules About Benefit Versus Liability:
The relationship between the right to enjoy benefit from a property and the liability to incur loss due to proprietorship is governed by a number of rules that carry great significance in transactions of commercial nature. In cases where commercial nature is not involved the plain rule is that "What is permissible in law cannot be a cause for liability".
Thus if a person digs a well in his farm and somebody's animal falls in it and is drowned the owner of the well will not be liable to compensate for the loss because he is allowed to get a well dug at his farm.
Similarly it is presumed an Islamic government provides the best available transport facility to its citizens, to construct dams for irrigation and electricity, to devalue or revalue its currency in the national interest, and to carry on development projects for the benefit of its people. Now in case somebody is run over by a train due to his own fault or is carried in an air-crash, or is carried away along with his property by floods caused by breaches in the dam, the government will not be legally liable to compensate for the loss.
If a government expenditure on development creates inflationary pressures the government would not be bound to compensate the buyers for a fall in value of their money caused by this action.
Another rule dealing with non-commercial transactions is governed by the Prophet's (peace be upon him) saying that:
"There is no indemnity on usufructuary who does not breach (the terms) nor on depositary who does not breach (the terms)".
Liability to indemnify the aggrieved party arises in a large number of non-commercial transactions like usurpation, slander, crime, found property, agency, marriage, sustenance, etc., under conditions of infringement of one's rights an4 negligence of duties and responsibilities. In cases, however, where commercial considerations are involved the rule provides that "Damage and benefit go together". That is to say that a person who obtains the benefit of a thing, takes upon himself also the loss from it.
This general rule is based on the Prophet's (peace be upon him) saying: "Al-kharaj bi'd-daman" ("Revenue goes with liability").
Another legal maxim that also has the same bearing is:
"The blessings of a thing are in proportion to the evils thereof and vice versa"
Thus when the thing used is destroyed while in the possession of the user compensation for use will be included in relation to its value; for example, if the buyer of an animal returns it because of a defect, after using it for a period, he is not liable to pay for the use of the animal, since if it had died before being returned, it would have died as his property. These rules imply that if the merchandise not yet possessed by the buyer is lost, it is the seller but not the buyer who would have to bear the loss because the former enjoys possession.
Or, in case the price of purchased goods still in possession of the seller increases, the increase will benefit the one who is deemed to be liable to suffer from an adverse fluctuation in price of the goods.
Contrarily, in a contract of Shirka a condition under which one party is entitled to a share in profit only while the other party is made liable to the entire loss along with his share in profit would contradict the above rule.
Similarly, renting out one's house on the condition that the tenant would be liable to the value of the house if the same is damaged due to flood or earthquake is also a contravention of the rule because the owner who is earning its rent should also bear the loss.
The depositary, who is liable to return the deposit is entitled to take away the profit of the deposit if the same has been invested, even though the permission (express or implicit) has been given by the depositor.
But if the depositor lays down the condition of transferring profits to him he will have to bear the loss, when incurred, on these investments.
The depositor is liable to bear the expenditure of safe-keeping because it is he who benefits from this safety. These rules are to be made applicable to all situations where an owner earns benefit from the property which he has transferred or intends to transfer fully or partially to others under a contract of sale, hire, lease, tenancy, agency, etc; or joins with another person with a view to earning through partnership (Shirka or Mudaraba) or share-cropping (Muzaraa). The rule guides us to decide whether all the partners in a partnership business will be similarly entitled to a return and liable to losses or a discrimination may be made between different partners on the basis of the time or amount of their deposits in assigning their shares in profit and loss? Can some share-holders be issued debentures or preference shares ensuring a fixed return while some others only ordinary shares whose owners are liable to bear the entire loss? Can an underwriter be treated differently in sharing the profit and loss in business? Which of the parties to a contract of leasing or hire purchase will be responsible for bearing the expenses of maintenance, repair and insurance? Can any set of terms and conditions of rent, hire or lease between a lessor and lessee be validly settled? To what extent a guarantee may be claimed from a partner, and against which kind of losses? The answers to these and similar questions should be judged on the basis 0f the criteria provided by the above mentioned rules.
(7) Public Welfare VIS-À-VIS The Discretion Of The Government
Respect for ownership of property is a distinctive feature of the Islamic economic system. The objective of the Sharia seeks, interalia, to protect the earning and property (mal) of people. This objective can be achieved only when the legal system prevailing in a society prevents violation of the properties of people. The holy Prophet (peace be upon him) has emphasized this point on a number of occasions. He is reported to have said:
"It is not permissible for a man to take away the stick of his brother without the latter's will"
"The property of a Muslim person is not lawful (for anyone) except with his free will."
The spirit implicit in such traditions led to the formulation of the following rules in regard to the use of property by others. "No one may dispose of the property of another, without the latter's permission.
"An order by one person to dispose of (Tasarruf) the property of another is null and void"
Tasarruf (use or disposal) may be under or without a contract. Contractual tasarruf would imply that a person makes an agreement or authorizes someone to sell, gift, mortgage, hire, deposit or lend another's property without the owner's consent. Tasarruf or use without contract implies disposing of somebody's property without his permission. An agreement made to this effect is normally deemed to be legally ineffective while he who uses it without permission is liable to indemnify the owner. Absence of a license, or permission to make such act renders it to be null and void. This right, however, does not deny the right of lawful claimants, where this provision is incorporated in the following rule:
"No one may take the property of another", except for a lawful reason".
The clause except for a lawful apparent reason makes this maxim applicable not only to authorization made by the owner but also to that laid down by law or reason. The authorization provided by law lies in levy or penalties by government which justifies the latter's claim on the owner's property or a part of it. This does not require the owner's willful consent.
Reason sometime allows a .non-owner to dispose of the property of the owner to save him from loss or damage. The manager of a poultry farm, for instance, who is not authorized to sell the chicken, may dispose of the whole stock for fear of the owner's loss, let us say, due to the spread of an epidemic in case it is not possible to expediously obtain the permission of the owner for one reason or another within time. Fire fighters may drench, destroy or dismantle inflammable erections lying in the vicinity of a burning object, without seeking the permission of the owner.
The authority of disposal on legal or rational grounds is equally enjoyed by the government under a different rule which reads as follows:
"Power in respect of the people's property by the owner subject to the following conditions":
The Rule confers wide powers in the government to control or regulate the acquisition and use of a private property by the owner subject to the following conditions:
The action so taken by the government should aim at achieving public interest and general welfare; for the government officials are supposed to act on behalf of the entire "Umma or achieving public interest through maintaining justice, eliminating corruption in society and using all available resources for the sake of achieving what deems to be in the interest of the ummah in the present and the future. Thus the action by the government officials should not be in conflict with these objectives. In case the government thus needs to acquire private property it should pay just compensation to the owner because of the rule already discussed above. According to some scholars the actions taken to achieve public interest should enjoy the support of the people.
The above conditions of the rule require that an Islamic government should clearly define the duration of ownership and the rights of disposal.
It should so legislate as to prevent others from misuse of public or private property. The administrative machinery should be competent to enforce the law in a just and honest manner. In case the government needs to acquire the property owned by some of its citizens it should publicize the contents of the property, the purpose of acquiring it and the rate of just compensation that it intends to pay. It should be ensured that the purpose for which the property is to be acquired enjoys the support of the people who can impartially judge the validity or otherwise of the purpose for which the government intends to take over somebody's property.
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