Benefiting from Public Property in the Khilafah

প্রশ্ন · 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.

উত্তর · 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 ﷺ 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.