Constitution of the Caliphate State / Economic System
- Category: Economic System §123-169
Article 134:Dead land is possessed through its revival and fencing. Any other type of land is not possessed except through a Shari’ah means such as inheritance, purchase, and donation by the State.
The evidence for the article are the words of the Prophet :
«مَنْ أَحْيَا أَرْضًا مَيِّتَةً فَهِيَ لَهُ»
“whoever revives dead land, it belongs to him” reported by Al-Bukhari Mawquf to Umar (ra), and it is narrated with an authentic chain connected to the Prophet by Ahmad and Al-Tirmidhi from Jabir, and:
«مَنْ أَحَاطَ حَائِطًا عَلَى أَرْضٍ فَهِيَ لَهُ»
“whoever surrounds a land with a wall, it belongs to him” reported by Ahmad and Abu Dawud with a chain authenticated by Al-Jarwud and Al-Zayn, and:
«عَادِيُّ الأَرْضِ للهِ وَلِرَسُولِهِ، ثُمَّ هِيَ لَكُمْ»
“Aadiy land is for Allah and His Messenger, and then for you” reported by Abu ‘Ubayd by an authentic Mursalnarration, and Abu Yusuf mentioned in Al-Kharaj from Salam b. ‘Abd Allah that Umar b. Al-Khattab (ra) said on the pulpit:
«من أحيا أرضا ميتة فهي له، وليس لمحتجر حق بعد ثلاث سنين»
“whoever revives a dead land, it belongs to him, and the one who fences it off has no right to it after three years (if not cultivating it).” The text of these narrations indicate that if an individual revives a dead land or fences it, in other words, putting stones, fencing or a wall around it, then it becomes their possession. The understanding of the texts is that if the land was not dead then he could not take it into possession through revival or fencing, even if it was not cultivated, or not suitable for cultivation without any work being done to it, and even if the owner was not known. Therefore, if the land was not dead then it cannot be possessed except by one of the causes of possession if its owner was known, and if the owner was unknown it could not be possessed unless the Khalifah granted it, and so it becomes possessed through this grant. If it is dead land, then it is possessed either through its revival or by placing one’s authority over it even if that occurs without necessarily reviving the land.
The dead land is the land where there are no signs upon it that it belongs to anyone, so there is no evidence of any kind of walling, agriculture, building or anything similar, and no owner or anyone utilising it. This is the dead land, and anything else is not considered dead land even if there was no owner or person utilising it.