Artikel 137: Öffentliches Eigentum manifestiert sich in drei Dingen:
- a) Alle gemeinnützigen Einrichtungen, wie öffentliche Anlagen und Plätz
- b) Große Rohstoffvorkommen, wie Ölquellen
- c) Dinge, die aufgrund ihrer Natur nicht von Individuen besessen werden können, wie Flüsse.
Article 137: There are three categories of Public Ownership:
a. Public utilities, such as the open spaces in the towns.
b. Vast mineral resources, like oil fields.
c. Things which, by their nature, preclude ownership by individuals, such as rivers.
The evidence of the article is the evidence for article 129, and so the evidence for clause: “c” is the affirmation of the Messengerupon the people sharing the ownership of the public pathways, and his words:
«مِنًى مُنَاخُ مَنْ سَبَقَ»
“Mina is a resting place for whoever arrives first” reported by Al-Tirmidhi from Aisha(ra), and he said it is Hasan Sahih, and Ibn Khuzaymah who authenticated it; in other words, Mina, which is the famous place in the Peninsula, is a public property for all the people. So whoever gets there first and rests there, they have the right to it.
As for clause: “b”, its evidence is what was reported from ‘Amru b. Qays from his father from Abyad bin Hammal who said:
«اسْتَقْطَعْتُ رَسُولَ اللهِ مَعْدِنَ المِلْحِ بِمَأْرِبَ فَأَقْطَعَنِيهُ، فَقِيلَ: يَا رَسُولَ اللهِ، إِنَّهُ بِمَنْزِلَةِ الْمَاءِ الْعَدِّ -يعني أنه لا ينقطع- فَقَالَ رَسُولُ اللهِ : فَلاَ إِذَنْ»
“I asked the Messenger of Allahto assign me a salt laden land as a fief and so he granted it to me. It was said: O Messenger of Allah, it is comparable to a countless water – in other words, it does not deplete – and so the Messenger of Allahsaid: “In such a case: no”” (reported by Al-Nasa’i), and the groundwater is that which is not depleted, and so the salt laden land was compared to the groundwater which is not depleted. The intention here is not the salt but rather the minerals, the evidence being that when heknew that it was non-depleting heprohibited it, though heinitially knew that it was salt, and granted the land initially, and so the prohibition is due to it being a vast mineral resource. Abu ‘Ubayd said:
«فَلَمَّا تَبَيَّنَ لِلْنَبِيِّ أَنَّهُ مَاءٌ عَدٌ ارْتَجَعَهُ مِنْهُ، لأَنَّ سُنَّةَ رَسُولِ اللهِ فِي الكَلأِ وَالنَّارِ وَالْمَاءِ أَنَّ النَّاسَ جَمِيعاً فِيهِ شُرَكَاءُ، فَكَرِهَ أَنْ يَجْعَلَهُ لِرَجُلٍ يَحُوزُهُ دُونَ سِواهُ»
“When the Prophetrealised it included ground water (does not deplete), he revoked it, it is the Sunnah of the Messenger of Allahin relation to pasture, fire and water, to make all the people partners in their possession. So he disliked limiting possession to one person at the exclusion of others”. Accordingly, every mineral which is non-depleting, i.e. its size is not evaluated as a small quantity, is considered to be a public property. Had it been limited to a small amount then it is not considered to be a public property, as evidenced by the narration.
As for clause: “a”, its evidence is the words reported by one of the companions of the ProphetAbu Kharras who said: the Messengersaid:
«الْمُسْلِمُونَ شُرَكَاءُ فِي ثَلاَثٍ: الْمَاءِ وَالْكَلإِ وَالنَّارِ»
“Muslims have common share in three: water, pastures and fire” (reported by Ahmad), and hiswords:
«ثَلاثٌ لا يُمْنَعْنَ: الْمَاءُ وَالْكَلأُ وَالنَّارُ»
“Three can not be denied (to anyone): water, fire and pastures” (reported by Ibn Maja from Abu Hurayrah). This narration has an Illah that its prevention is because they are from the public utilities. So the Messengerpermitted individual ownership of water in Al-Ta’if and Khaybar, and they owned it at the expense of others in order to irrigate their crops and gardens, and so if there was absolute partnership in water, hewould not have allowed individuals to own it. Therefore, from the words of the MessengerMuslims have common share in three: water…”, and: “three are not denied” along with hispermission for individuals to own water, an Illah can be deduced that the partnership in water, pastures and fire, is due to the fact that they are public utilities that the public cannot live without, and so anything that is considered to be a public utility such as the open space in the towns, the areas for wood and the grazing pastures are all public property.
This is the evidence for public ownership.
As for the fact that these three alone constitute publicly owned property, this is from examination. Through the examination of the evidences regarding public ownership, it was found that they were limited to these categories, and so subsequently the evidence for this article has been made clear.