Series of Answers by the Eminent Scholar Ata bin Khalil Abu al-Rashtah, Ameer of Hizb ut-Tahrir, to the Questions of Visitors to his Facebook Page "Fiqhi"
Answer to Question: Public Ownership To: Nader al-Za'tari
Question:
Assalamu Alaikum, O eminent scholar. I would like to ask you a question regarding public ownership: Can it be converted from private ownership to public ownership within Sharia rulings, such as converting water springs from private to public if the interest of the community requires it? And if the excuse (reason) is removed, does it return to its previous state as private ownership? Similarly, if oil wells run dry, is it permissible for them to become private property?
With many thanks, and may Allah help you, strengthen you, and guide your steps. Wassalamu Alaikum wa Rahmatullahi wa Barakatuhu.
Answer:
Walaikum Assalam wa Rahmatullahi wa Barakatuhu,
If any type of public ownership is based on a legal cause ('illah), then the ruling follows this cause in its presence and absence. If the cause exists, that type continues as public ownership, and if the cause is absent, it becomes permissible for that type to be owned as private property. However, this is on the condition that the cause is a Sharia cause mentioned in the Sharia text.
- For example, what is considered a community utility (marāfiq al-jamā’ah) is regarded as public ownership. The Messenger ﷺ explained this in the Hadith in terms of its description, not its number. On the authority of Ibn Abbas, the Prophet ﷺ said:
الْمُسْلِمُونَ شُرَكَاءُ فِي ثَلَاثٍ فِي الْمَاءِ وَالْكَلَإِ وَالنَّارِ
"The Muslims are partners in three things: water, pasture, and fire." (Reported by Abu Dawud). Anas reported from the Hadith of Ibn Abbas and added: "and its price is haram." Ibn Majah reported from Abu Hurairah that the Prophet ﷺ said: "Three things are not to be denied: water, pasture, and fire."
This is evidence that people are partners in water, pasture, and fire, and that an individual is prohibited from owning them. However, the Messenger ﷺ allowed individuals to own water in Ta’if and Khaybar for watering their crops and orchards. Likewise, some Muslims owned wells in Madinah; Al-Bukhari reported on the authority of Abdullah (ra) that the Prophet ﷺ said:
مَنْ حَلَفَ عَلَى يَمِينٍ يَقْتَطِعُ بِهَا مَالَ امْرِئٍ مُسْلِمٍ، هُوَ عَلَيْهَا فَاجِرٌ، لَقِيَ اللَّهَ وَهُوَ عَلَيْهِ غَضْبَانُ
"Whoever takes an oath to deprive a Muslim man of his property while he is a liar, he will meet Allah while He is angry with him."
Then Allah revealed:
إِنَّ الَّذِينَ يَشْتَرُونَ بِعَهْدِ اللَّهِ وَأَيْمَانِهِمْ ثَمَنًا قَلِيلًا
"Indeed, those who exchange the covenant of Allah and their [own] oaths for a small price..." (TMQ Aal-Imran [3]: 77).
Then Al-Ash'ath came and said: "What did Abu Abdurrahman tell you? This verse was revealed concerning me; I had a well in the land of a cousin of mine, and the Prophet ﷺ said to me: 'Your witnesses [to prove it is yours],' I said: 'I have no witnesses,' he said: 'Then his oath [will decide],' I said: 'O Messenger of Allah, then he will swear.' So the Prophet ﷺ mentioned this Hadith, and Allah revealed that verse as confirmation."
If the partnership in water was due to its essence and not due to the nature of the need for it, he would not have allowed individuals to own it. From the Prophet’s ﷺ saying: "The Muslims are partners in three things: water..." etc., and from his permission for individuals to own water, the cause ('illah) for partnership in water, pasture, and fire is derived, which is its being a community utility that the community cannot do without. Thus, the Hadith mentioned the three, but they are reasoned (mu’allalah) by being community utilities.
Accordingly, this cause follows the effect (ma'lul) in its presence and absence. Everything that fulfills the description of being a community utility is considered public property. If it loses the status of being a community utility—even if it was mentioned in the Hadith like water—it is no longer public property but becomes one of the things that can be owned individually. The criterion for what constitutes a community utility is anything that, if not available to a group—whether that group is a cluster of tents, a village, a city, or a state—they would disperse in search of it. This includes water sources, forests for firewood, pastures for livestock, and the like.
- For example, minerals (ma'ādin) are public property if found in unlimited quantities, such as mines and the like. These minerals are public property and may not be owned privately, as At-Tirmidhi reported from Abyad bin Hammal: "He went to the Messenger of Allah ﷺ and asked him for the salt mine as a grant (iqtā’), and he granted it to him. When he turned away, a man in the assembly said: 'Do you know what you have granted him? You have granted him the inexhaustible water (al-mā' al-'idd).' He (the Prophet) then took it back from him." Al-mā' al-'idd is that which does not run out. He likened the salt to inexhaustible water because it does not cease. This Hadith indicates that the Messenger ﷺ granted the salt mine to Abyad bin Hammal, but when he realized it was a permanent mineral that does not run out, he rescinded the grant, took it back, and prohibited private ownership of it, meaning it is public property. The intent here is not just salt, but the mineral itself. From this Hadith, it is clear that the reason ('illah) for the prohibition of granting the salt mine was its being 'idd, meaning it does not run out.
This ruling—that inexhaustible minerals are public property—includes all minerals, whether they are surface minerals reached without cost, which people frequent and benefit from (like salt, kohl, rubies, etc.), or subsurface minerals reached only through labor and expense (like gold, silver, iron, copper, lead, etc.), and whether they are solid like crystals or liquid like oil. They are all minerals covered by the Hadith. Since inexhaustible minerals are public property for all citizens, the State is not permitted to grant them to individuals or companies, nor to allow individuals or companies to extract them for their own account. Rather, the State must extract these minerals itself on behalf of the Muslims and in the care of their affairs, and everything extracted from them is owned as public property for all citizens.
Consequently, the items mentioned in the question are public property if they are community utilities. For example, a water well in a village where there is no other source of water is public property and cannot be owned individually. If water becomes sufficiently available to the people from other than this well, then any person may dig a well on their land and own it because it is no longer a community utility in that case; i.e., the cause for it being public property has ceased. However, the well that was public property does not automatically become private property; rather, it remains public property, and it is permissible to sell it to individuals if water becomes sufficiently available to the people, and then its price is placed in the public property category (bāb al-milkiyyah al-'ammah).
Likewise, a water spring is public property if the community cannot do without it. If it dries up or the community no longer needs it—meaning the cause of it being a community utility is absent, such as if water becomes sufficiently available—then it is permissible to sell that spring to individuals and place its price in the public property category.
Similarly, oil wells are public property as long as they are 'idd (inexhaustible). If they run dry—meaning the cause for them being public property has been removed—then it is permissible to sell the well to individuals, and its price is placed in the public property category.
Your brother, Ata bin Khalil Abu al-Rashtah
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