Prelude
Means of Ownership
Milkiyyeh (ownership) is a concept derived from mulk (ownership), which is in the Shari’ah: ‘The Shari’ah-accepted control over a possession or right that is suitable for exchange and which enables its owner to have fruitful use of it, unless there is an obstacle.’ It has many forms, as follows:
First: According to the owner, ownership may be divided into private ownership ascribed to one individual, or to more as a company/sharing, and public ownership, and may be the nation’s ownership, which means that the thing is freely allowed to all Muslims, but by varying degrees according to the nature of the owned thing, such as water, lands (not owned by individuals), trusts and the like, or the state’s ownership, which is – originally – the legitimate authority that has the right of control over society and of establishing a just system within it; this ruling also applies to infidel and unjust states.
Second: According to the owned thing, ownership may be divided into what the owned thing is, whether it is the whole of the asset and benefit (from it), such as ownership of houses, properties, books or clothes, or whether the owned thing is the benefit in particular not the asset, such as rental assets, or whether the owned thing is a right that is related to another thing, such as ownership of copyrights, child custody and the like, which will be discussed later.
(A) Qualification for control/disposal/usage of ownership
769. The Islamic Shari’ah confirmed the right of man to ownership, without differentiating between young or old, male or female, Muslims and non-Muslims, or sane and insane; but – despite this – it did not allow owners to have exclusive control over their ownership unless they have certain merits that qualify them for this and unless their disposal actions do not harm others.
As for the factors that are regarded as obstacles to the owners’ control of their ownership, they are:
1- The young-age obstacle, which means not having reached the Islamic legal age (bolūgh); but once the boy or girl has reached it, the obstacle is lifted and their control of the asset is valid, provided that the condition of roshd (reasonable, acceptable conduct) accompanies bolūgh, as will be explained.
2- The insanity obstacle; what is meant by insanity – according to common understanding – is the state of being separated from reality, when one’s conduct is outside the individual and social norms that stem from Shari’ah and custom, which may reach the extent of lacking instinctive judgement and a complete dislocation from material reality. What is meant by the insanity obstacle is when this happens all the time, so if a person's insanity occurs in bouts, so that he becomes insane only sometimes but is sane on others, his disposal (of his ownership) when sane is valid when other qualification conditions exist.
3- The safah obstacle; safah is opposite to roshd, and in the world of finance, roshd is: a level of experience in transactions that on one hand enables the person to benefit from his assets and invest them in suitable ways without making him slide – a lot – into unfairness, and on the other this experience enables him to spend his assets/money reasonably for his needs.
770. The safah obstacle is exclusive to the control of assets – selling, buying, giving away as gifts etc, so it does not stop the person from his activities that are not financial in themselves even if they include spending money, such as marriage, divorce, vows and the like.
771. Roshd is not related to a certain age; a person may reach old age but stays safih (incapable of reasonable conduct) and so is prevented from control (of his assets); also, he may become rashīd before reaching the Islamic legal age, but the latter must be reached to lift guardianship from him.
772. Roshd is ascertained through tests, such as giving him an amount of money and observing his conduct. In Shari’ah, it can be proven by the witness of a man or woman, and only one righteous or trustworthy witness is sufficient; there is merit in accepting the witness of one woman on the roshd of a woman, and there is no problem in that provided that satisfaction is achieved.
(B) Guardianship (wilāyeh) of those who lack the qualification of independence
The Shari’ah has taken care to provide people who take control of individuals who do not qualify for independence, so that they manage them according to their (the formers') interests, and this is at the following levels:
First level: Guardianship by the father and the grandfather on the father's side
773. Guardianship by the father and the grandfather on the father's side is confirmed on the young until he reaches the Islamic legal age (bolūgh), and on the insane and safih – if they have reached bolūgh – until the insane becomes sane and the safih becomes rashīd (reasonable); so if the insanity or safah takes place after reaching bolūgh, in this case the Islamic authority will become the guardian, although it is better to include the father or the grandfather on the father's side with him in the guardianship over them. The guardianship of the father and the grandfather on the father's side stems originally from their blood ties to the person under their guardianship, so it does not need the appointment of the Islamic authority, nor his supervision and permission.
774. The guardianship of the father and the grandfather – if they are alive – is at one level, so if they both take up one matter and the action of one of them occurred before the other, in this case his action becomes valid not the other, otherwise both of their actions become invalid, which is something that seldom happens, especially because often it is the father who takes control without the objection of the grandfather.
Second level: Guardianship of the guardian (wassi)
775. Guardianship of the guardian (wassi) stems from the guardianship of the one who appointed him, who is the father or the grandfather on the father's side, so he becomes like the original guardian after his (the father's or grandfather's) death, and this is better than (handing over control to) the Islamic authority. The conditions for its validity from each of the father or the grandfather is the absence or death of the other, and its (authority over the assets) widens or narrows according to the restraints that the author of the will has put in his will.
776. The conditions of the guardian are reaching the Islamic age, sanity and reasonable conduct (roshd); being male is not a condition, nor righteousness, but it is sufficient that he is trustworthy and abides by the restraints and guidelines which the author of the will had specified. Also, Islam is not conditional unless if an evil may take place by entrusting a person to a non-Muslim.
777. It is not obligatory on the guardian to attend himself to guardianship matters unless if this was a condition in the will.
Third level: Guardianship by an Islamic authority (al-hakim ash-Shari’)
778. We mean by Islamic authority (al-hakim ash-Shari’) the righteous scholar of Islamic law (al-Faqīh al-Mojtahid al-‘Ādil); he becomes the guardian of someone who does not qualify for independence only when the original guardian dies without the existence of a guardian appointed by them (the two original guardians). Based on this, if the person lacking the qualification of independence becomes guardian-less and it is possible to turn to the Islamic authority, it becomes not allowed for any Muslim, even if one of the person’s relatives, to have any control over any of the person’s financial matters in things like selling or buying, nor over any of their exceptional personal matters that need the opinion of the guardian, unless after consulting the Islamic authority.
Fourth level: Guardianship by the just believer
779. Guardianship should be exercised by the just believer, who is a sane, reasonable, experienced and Shari’ah-abiding, drawn from amongst all the believers, whether a relative of the person under guardianship or not. The guardianship by several believers is on one level, so if one of them takes control, his actions are executed and valid, and if two of them take action, the action by the one who started before is executed.
780. It seems that the guardian has the role of the owner in how to dispose of his chargee's assets; therefore, the guardian has the right to seek to bring benefits and make profits for the person under his guardianship, and is not restricted simply to stopping actions or things that may lead to loss or the like, such that if he has to decide between using the assets to try to make profit or to save them without losing anything; it is better for the guardian to trade with the assets of that person under their guardianship to make profit which is in his interest. However, if the action lacks interest for the person under guardianship, such as if there is no profit in that business or any other interest, he is not allowed to do it, even if it lacks any evil or harm.
781. Since the interest of the person under guardianship is a condition in the guardian’s actions, therefore the guardian has no right to give as gifts, nor give as alms (sadaqah), any of the assets of the person under their guardianship, even if there is interest for the latter in them somehow. That said, this does not include paying the khums, zakāt, compensation or other matters which, it was narrated, are obligatory or recommended to be paid from the assets of the person under their guardianship when such conditions exist. However, regarding things such as giving loans to others or lending it upon the satisfaction that the loan shall be paid back and the lent property returned, then if this has an interest for the person under guardianship it is allowed; but if it lacks any interest it is not allowed, even if the person who is borrowing is one of his relatives.
(C) The condition that no harm is done to others
782. If the disposal by the owner of items in his ownership is accompanied by harm to his neighbour, and if this harm is something that common to a number neighbours, such as erecting a building that deprives them of sun or air, unless it seems there is no problem in it, otherwise it is not allowed. Thus, he must remove what is commonly viewed as unacceptable harm.
783. Regarding the prohibition of disposal that leads to harm to neighbours, no distinction is made between disposal of items in his ownership leading to real harm to the neighbours' property, such as if his actions lead to a fault in his neighbours walls, and the harm that results as a consequence, such as if he sets up a tannery in a residential area in a way that would make the possibility of living in the neighbouring houses impossible.
784. If one of the two neighbouring owners wants to build a fence around his land, or a wall for his house, he is not obliged to leave a margin/boundary between him and his neighbour’s property, his fence or house. That said, he must abide by the civil planning laws regarding the necessary building specifications since this is important to man’s life and health and the beauty of his town.
(D) Conditions in the case of illness
785. It seems that disposal actions by someone who is sick and subsequently dies are valid and absolutely executable, especially if they conform to his actions during his healthy days and if his actions are not to harm the inheritors, on the condition that they do not harm a loan owed to others in a way that would make the rest of his assets inadequate to pay it back, in which case his actions are to be executed except those that would harm the debt only, which are invalidated.
786. Illness that terminates in death is exclusive to illnesses in which the sick person is usually subject to the danger of death, so ailments like a light temperature that coincide with death would not stop the execution of his actions, even if for the intention of harming the inheritors or people to whom he owed money. In addition, this ruling should apply to only the last stage near to death of an illness that lasted a long time; also to the illness that was the cause of death, so if he dies for causes other than that illness, this would not prevent the execution of his actions which he began during his illness before the cause of his death.
(E) The virtues and manners of earning
First: The virtues of earning
Working hard to earn the living is one of the great praised deeds, since it is a natural necessity required for man to meet his needs and for society to face its duties in building the land and spreading dignity and justice on it. It is also a personal human necessity, because of its effective role in mobilising the person’s intellectual, psychological and physical capabilities, bestowing upon him exceptional happiness and good health.
And if Islam is the religion of the instinct that balances the needs of the spirit and the body and this life and the hereafter, it becomes unsurprising that it encourages man to work and strive to earn his living, regarding it like a holy struggle in the path of Allah, the Most High, in merits and reward. It was narrated that Imam al-Kādhim (as) said: ‘Whoever went after this bounty from its allowable means to spend it on himself and his dependants, he is like the fighter in the way of Allah…’ Also, it is the best kind of worship as it was narrated that the Prophet (sawa) said: ‘Worship is seventy parts, the best of which is seeking the allowable.’ And in addition to its worldly consequences, it has magnificent consequences in the hereafter, as it was narrated that the Prophet (sawa) said: ‘Whoever spent his night working hard to earn the allowable (living), he has spent his night forgiven.’
In contrast to this, Islam strongly condemned those who are lazy in earning their living, whether as a kind of belittling of life or wrongly thinking that the bounty comes to them without work depending on the generosity of Allah; it was narrated that Imam as-sādiq (as) enquired about a man and they said: ‘He is sitting in his house worshipping Allah and some of his brothers meet his expenses,’ so he (as) said: ‘By God, whoever is meeting his expenses is a better worshipper than he.’ It is also narrated that he (as) said: ‘I hate the man opening his mouth to his Lord, saying: “Give me”, and leave working to earn it.’ In some other narrations the person who does not work and strive to earn his living will not see his prayers answered; in some others, it was narrated that it is forbidden to fail to earn your living, even in the time of war.
The matter does not stop here, for it – in addition to being a recommended deed – has a great merit and reward and may become obligatory; in fact it is originally one of the obligations under the conditions of sufficiency (wājib kifā’ī) that people must strive to do; so if this duty was attended to and the necessary professions and important means of living have been established, work becomes recommended; but when part of that weakens and the need intensifies and becomes necessary, it becomes obligatory under the conditions of sufficiency, such as in the professions of medicine, carpentry etc that vary according to societies and circumstances.
Moreover, the matter does not stop at fulfilling the need, but some narrations encourage seeking richness and abundant income and suggest that this helps in God-fearing.
Finally, it is clear – by definition of the nature of things – that all types of work are important and necessary – relatively – for all societies, something which one can also find in the sacred texts.
Second: The general manners of earning
It was narrated in the exalted hadith some manners of earning that are not related to a specific craft; it is suitable to mention some of them:
1- Where the aim is obedience to God and His satisfaction and winning in the hereafter. It was narrated that a man came to Imam as-sādiq (as) and said: ‘By God, we seek life and love to get it!’ The Imam (as) said to him: ‘What do you want to do with it?’ The man replied: ‘I want to spend it on myself and my dependants, give to my relatives, give alms and go to pilgrimage and ‘omrah.’ The Imam (as) said: ‘This is not seeking life, this is seeking the hereafter.’
2- Where the person seeks his income with patience by the allowable means, as in the hadith in which it was narrated that the Prophet (sawa) said in the farewell pilgrimage: ‘The Holy Spirit has put in my mind that no soul will die until it has got all its bounties, so be God-fearing and do not exaggerate in seeking (it); and do not let any delay in a bounty make you seek it by disobedience to Allah (i.e. sinning), for Allah, the Most High, has divided the bounties between his servants in the allowable, not the forbidden, so whoever fears God and is patient, God will give him his earnings from the allowable, and whoever violates the veil of knowledge and rushes to take it by means other than what is allowed, his allowed bounty will be cut and he will be brought to account regarding it on the Day of Judgement.’
3- That one should by reasonable in seeking the earnings, depending on God and feeling no regret and sorrow for potential earnings that he missed out on. It was narrated that Imam ‘Ali (as) said: ‘How many people are trying too hard, (nonetheless) their income is scarce, and how many people are not doing much to earn and fate has helped them.’ Therefore, one must spend a reasonable amount of effort that is common for such a job and circumstances, without exaggeration.
4- Not to mix or deal with people besides those who were brought up well and have ended up with good virtues and clean heart and offer congenial company. It was narrated that Imam as-sādiq (as) said: ‘Do not mingle or deal with anyone besides those who have been brought up in goodness.’
5- Going away from the homeland to seek the bounty. It was narrated that Imam as-sādiq (as) said: ‘Allah, the Most High, surely loves going away from the homeland to seek the bounty.’ It is as if the hadith means that expatriation is good when earning a living in one’s homeland becomes difficult and the opportunities are few, so that one leaves in the hope that in the new place one is going to be more fortunate.
6- Praying for the bounty when seeking it. It was narrated that the Prophet (sawa) said: ‘Bounties come down from heaven to earth like the number of rain drops to every soul that are ascribed to it, but (nonetheless) Allah gives more, so ask Allah for His grace.’
Imam as-sādiq (as) said: ‘Allah, the Most High, has provided the bounties of the believers in places they do not expect, because if the servant does not know from where his bounty will come, his prayer becomes more intense.’