The Prophet Muhammad (Sallallaahu Álayhi Wasallam) declared that, ‘Muslims are to hold in common these three things; Water, pasture and fire.’
The right to benefit from natural resources such as water, rangelands, woodlands and wildlife is, in Islam, a right held in common by all members of society. Such benefits may be direct or, by way of harvesting or extracting the resource, or they may be indirect, by way of access to its products.
However, it is important to point out that the abuse of rights is prohibited in Islamic law. Ultimately, Allah Alone is the owner of the heavens and the earth and all that they contain. ‘People do not in fact own things, for the only real owner of things is their Creator, be He glorified and exalted. Indeed, people do not own anything but their usufruct in the manner permitted by the revealed Law.’
All properties and resources are held in trust by human beings, to be used only in accordance with their divinely ordained purposes. Rights of ownership and usufruct are distinct and separate, and while property rights are rigorously safeguarded there are important restrictions on the use of property.
The Prophet Muhammad (Sallallaahu Álayhi Wasallam) declared. ‘There shall be no damage and no infliction of damage.” Accordingly, Muslim jurists have ruled that a person invalidates his right if by exercising it he intends to cause damage to another; or its exercise results in damage to another without corresponding benefit to its possessor, or it in spite of bringing benefit to him, its exercise results in excessive damage to another or in general damage to society.
Every member of society is entitled to benefit from a common resource to the extent of his need, so long as he does not violate, infringe, or obstruct ‘the equal rights of other members. The user is also held acccountable; In return for profiting from a renewable natural resource, he is obliged to maintain its value. If he causes its destruction, impairment, or degradation, he is held liable to the extent of repairing the damage, for he has violated the rights of every member of society.
To the extent that a common resource is not sufficiently abundant for everyone to use it freely without impinging on one another’s rights, the dire rights of usufruct are allocated according to the following considerations: 1) The degrees of need; 2) The impact on the resource, 3) Investment in the resource by way of work and capital; 4) Priority in time of the chain upon the use of the resource, and 5) proximity to the resource.
The use of water, that most vital resource of which every living thing is made and upon which each depends, illustrates the allocation of rights to a scarce resource, and may serve as an analogical basis for the allocation of rights to other resources which were formerly abundant but are now becoming progressively more scarce.
In its natural state, water is basically common and is not basically common and is not subject to private ownership. Only through its appropriation in a vessel or cistern does water become private property. Although the excavation of a well or canal gives rise to rights of ownership to the property and priority at usufruct, the water in itself remains a public resource.
Rights of usufruct are prioritized according to the kind of use involved and according to the users. With regard to the kind of use, priority is given first to human beings in need of water to drink; second, to other domestic uses such as washing and cooking, third, to domestic livestock and other animals for drinking; and finally, for irrigation of crops and for industries., Accordingly, on irrigation systems, access by man and livestock is safeguarded. Access to water for drinking cannot be denied because a person’s life may depend on it.
Likewise, anyone may normally take from flowing water for washing, cooking, and similar domestic purposes and but not be deleterious to the resource. Water used for irrigation may not be withheld from livestock unless their numbers are so great that the crop will be affacted, or they are likely to cause damage to the facility. In such a case the possessor of the water source is only required to give what water is surplus to his needs.
This prioritization favours those with the greater need. It also favours uses which are less consumptive, or have less impact on the resource.
Secondly, rights of usufruct are prioritized according to the users. Here, the discussion centers upon the allocation of water for purposes of irrigation.
Where a naturally occurring water source is sufficiently abundant for all users to enjoy its usufruct, they may do so freely in moderation. They may not waste by excess, for wastage is forbidden. Nor may they impair the quality of the resource by polluting.
When a naturally occuring water source is insufficient for unrestricted use, as in an ephemeral stream or a small perennial stream, riparian land-owners have senior rights of usufruct, but may not withhold from others water that is surplus to their needs. Normally, the upstream riparian user may take the amount of water that his crops require, and must release the surplus water to the user who is next downstream who in turn must release his surplus to the next until all farms are satisfied or the flow is exhausted.
This accords with gravity flow in water distribution and reduces conveyance losses caused by seepage and evaporation. It also ensures that in times of drought there will be sufficient water for some farms to flourish, by the sacrifice of farms that are marginal, whereas, equal allocation may lead to a general failure of all crops in times of drought. In effect, this tends to limit agriculture to the extent that is economically viable and to discourage over extension of agriculture beyond what the resource can sustain.
If however, a new farm or plot is cultivated upstream from an existing farm or farms, then the farm which was first established takes priority and the new plot receives a share only after the previously established farms have been irrigated. Riparian rights are thus subordinate to rights of prior claim. This ensures that a farmer’s investment in the resource will not be prejudiced by future users.
According to some jurists, irrigation allotments may be used on any land and for any beneficial use that its possessor designates, since once the allotment has been allocated, it belongs in effect to the user.
Similar principles govern the use of groundwater. The owner of a well or spring enjoys senior rights of usufruct, but he may not withhold surplus water beyond his needs so long as there is no degradation of the resource. Nor may he pollute the aquifer or deplete to the extent that he causes previously established cells to fail. The averting of harm takes priority over the acquisition of benefits, and the common welfare takes precedence over individual welfare.
Artificial water sources, such as wells and canals, belong to the people who have constructed them. If such a facility is constructed by a group, it is jointly owned, in accordance with the shares of labour and capital invested in it. The owners of such facilities enjoy senior rights of usufruct but the water remains a public resource, because it flows to and from the land. Only when water is appropriated and separated from its source, as in a vessel, cistern, or rainwater harvesting catchment, does it become the possessor’s private property. Once owned, it can be sold and otherwise disposed of.
Madrasah Arabia Islamia, Azaadville
