4- Law and the discovery of’Islamic economics’
Iqtisaduna, an expose
Iqtisaduna consists of three parts: the two first parts are critiques of the capitalist and socialist systems and operate negatively by presenting, essentially, counterarguments to classical socialist and capitalist theories (‘With Socialism’, / 17-212;’With Capitalism’, / 213-54). The most interesting part is the third one which deals with the conception of the Islamic economy in Sadr’s mind, and is the object of our presentation (I 255-700).
The exposition of’ Islamic economics’ is constituted, in Sadr’s outline, by several sections which appear loosely connected. After an introduction which includes various methodological remarks (‘Our economic system in its general features’, / 255-356), Sadr divides the bulk of the investigation into a’theory of distribution before production’ (I 385-469) and a’theory of distribution after production’ (I 515-80). This is followed by a fourth section on the’theory of production’ (I 582-628), a section on’the responsibility of the state in the Islamic economic system’ (I 628-58) and various appendices on points of detail on some legal-economic aspects discussed in the book (I 659-700).
As appears in the outline, there is no underlying concept which emerges in the book, although the central unifying element seems to be a general notion of the distribution process, which is introduced by an analysis of the’preproduction phase’ and is followed by further remarks on the role of the state in the system.
Iqtisaduna is re-arranged in this presentation under three headings:
Principles and method; Distribution and the factors of production; and Distribution and justice.
Principles and method
The Islamic part of Iqtisaduna starts with a series of remarks, which introduce’ principles’ of the system, along with methodological observations on the way to discover and expound it.
Principles of Islamic economics
Sadr begins with a presentation of the three basic principles of the Islamic system:’multifold property’,’limited economic freedom’, and’social justice’.
Multifold property. The essential difference between Islam, capitalism and socialism, resides for Sadr in the nature of property adopted by each system (I 257). Whereas’a capitalist society is a society which believes in private property as its basic (unique) principle, and considers [measures like] nationalisation as the exception to the rule’, and’whereas a socialist society is a society which considers socialist (common, ishtirakiyya) property as its principle, and recognises private property only under special circumstances’, an Islamic society will differ from both by acknowledging simultaneously different types of property,’ posing thus the principle of multifold (dual, muzdawija) property, a property with various forms’ (I 258). These forms are three:’private’,’public’ (lamma), and’statal’ (milkiyyat ad-dawla). But an Islamic society is not a bicephalous entity, as if it had’combined the traits of both Socialism and Capitalism’ (I 259). For these various forms of property are not a mixture, however complex (mizaj murakkab), but the original and principled expression of the Islamic rules. They are specific, and stand in an essential conflict with their socialist and capitalist counterparts.
Limited economic freedom. Two limits hamper the absoluteness of private property. The first limit is subjective, and derives from the moral values of wealth-sharing taught by Islam. These values cannot be quantified and are independent of state coercion. Each individual’s generosity in sharing his wealth with others differs, but the economic element of the subjective factor is less important than its contribution to the fabric of Muslim society. Sadr suggests that these values have proved the most precious means endowed by religion to the individual. In the course of Islamic history, the strength of this subjective individual factor has permitted Islamic society to survive through the many vicissitudes that have befallen the Muslim world.
The second limit is objective, and it is carefully defined by the law. This limit functions on two levels. On the higher level, the shari’a has laid down’in its general sources [i.e. the Qur’an and the Sunna]... the prohibition of a set of economic and social activities... such as the prohibition of riba and monopolisation (ihtikar)’ (I 262). On a lower level, the shari’a governs’the principle of the ruler’s supervision and intervention in public life’ (id.), which is accepted by all Muslims in accordance with Qur’anic injunctions.
There might be disagreement over the ruler’s method of’ appointment, and over his prerogatives and qualities (sifat)’ But the ruler can in no case contradict the legal dispositions defined at the higher level, like’the prohibition of riba, of fraud (ghishsh), the annulment of inheritance laws,
or the suppression of one of the accepted forms of property in society’ (I 263).
Social justice. Sadr is aware of the danger of inefficient generalisations:’ It is not sufficient to know in Islam that it calls (munadatuhu) for social justice, it is also necessary to know the detailed representations of justice, and their precise Islamic significance’ (I 265). The principle is not laid out in full at this point. Sadr remits the discussion to a later chapter, but he brings a clarification: the concept of social justice is divided into two sub-principles,’public solidarity, takaful’amm’ and’social balance, tawazun ijtima’i’ (I 265).
The attention to detail is said to be supplied by’two basic characteristics:
realism and moralism (akhlaqiyya)’. Realism commands that, unlike Communism, which enjoys hovering in lofty skies and imaginative economics, and wallows in the prescription of objectives drawn from’material circumstances and natural conditions [that have nothing to do with] man’, Islam retains against the temptation of illusions a dose of realism -which takes into account the egotistic yet unavoidable human traits -and against immorality a sense of ethics, which avoids the imposition of social justice without the guiding framework of religion’s moral teachings. From this passage (I 265-6), we can derive some elements of the general legal system which emphasise the’moral’ legal quality of zakat and other financial precepts.
From the concept of moral corrective, Sadr deduces a utilitarian economic dimension. The psychological element should not, as in Marxism, be ignored as a key component of the economy, for it bears on the law of offer and demand. The moral dimension, adds Sadr,’plays a major role in the economic field, for it affects the occurrence of the cyclical crises that have plagued the European [i.e. industrial-capitalist] economy’ (I 268).
‘Islamic economics as part of a larger system’
In this chapter (I 269-77), the methodological concern is supplemented by two cases of encounter between old shari’a concepts and the contemporary challenge to their relevance. Islam as a universalist atemporal ideology is confronted with other universalist bids, particularly the Western legal world view.
Sadr first prepares the ground. Systematisation is necessary, with insistence on the necessary interrelation between the basis (turba, ardiyya) and the general form (sigha) of social life. The basis is formed as a combination of three elements, the doctrine (al-’aqida), concepts (almafahim), emotions and senses (al-’awatef wal-ahasis). The preferred image of the Islamic society, similar to that of modern historiography,
is that of a building:’ For the interrelation present in the grand Islamic design (tasmim) of society between each of its aspects renders it comparable to a map (kharita) drawn by a most skilful architect of a beautiful building. It is not possible for this plan to reflect the beauty and elegance intended by the architect unless it is realised in its entirety Thus the Islamic design’ (I 271).
It is however not possible, remarks Sadr, to ponder over all the elements of social life in a single book on economics. Suffice it to keep these generalities in mind. The importance of the complex background is illustrated by two specific concepts, private property and profit. Private property includes a Islamic law and’‘Islamic economics’ right of protection which commands responsibility and limits absoluteness,
and profit is more than a mere arithmetic computation (I 273). Also,’the prohibition of riba, if taken in isolation, can be the source of dangerous problems in economic life’, and can only be grasped within a totality which includes’ the rules of mudaraba (commenda), of [social] balance, solidarity, and [Islamic] finance’ (I 274).
Other non-economic issues which affect economic life include the more sensitive questions of the thief s punishment and of slavery. For Sadr, these dispositions can only be appraised in the light of the totality of the Islamic building suggested earlier. Cutting the hand of the thief is cruel in a capitalist society, in which the immense majority of the individuals are left to their miserable fate. But it should not be perceived to be harsh in a pure Islamic society, when all motives for crime have been abolished. Similarly, if Islam has admitted slavery in times of war, the disposition must be appraised against the whole picture, as the best available means to a just ruler in times of legitimate war (I 274-7).
The question of slavery in war is important for Sadr’s rare appreciation of the conditions of a just war, and sheds light on the methodology used in such sensitive questions. Understandably, the conditions for slavery and the hudud (penal provisions) are among the most delicate areas of the discussion on the projected Islamic state. Sadr avoids understating them, or passing them by in silence. But the way he chooses to address them is historical. In the case of slavery and just war, a perspective on the past offers the key to their legitimacy. It is true, says Sadr, that there are rules for the enslavement of prisoners as war booty. This, however, was common practice, for Muslims and their opponents alike. Among a series of three legal dispositions concerning the prisoner of war-amnesty, release against ransom, and enslavement -the third could be chosen by a just ruler if he deemed it as most appropriate. It is important to make clear that the war in the first place must be a just war, jihad.
For Sadr, war becomes jihad only if two conditions are met: (1) that all peaceful means,’buttressed by arguments and evidence’ (I 275), have been exhausted. Then Islam will have no other recourse but to use violence. (2) That the permission to carry out jihad be authorised by a just ruler. The definition of a just ruler is not discussed in Iqtisaduna.
Historical perspective is also the way to deal with the hudud. Its form however is prospective: the hudud are projected into the future Islamic society. When, and only when such a fair society is established, and is governed by a just ruler, the hadd (singular of hudud) will lose its harsh character and be applied.
The status of religion in the economy: subjective impulse v. social interests
Some problems, says Sadr, do not create a conflict between the individual and society. As with the encouragement to combat tuberculosis, everybody will be in agreement (I 279). But these topics of non-conflict are rare. Much more significant are the areas of social concern in which the subjective interest itself is at odds with the achievement of the common good.
Guaranteeing for the worker his means of living in case of redundancy contradicts the interests of the wealthy, who have to pay for compensation.
The nationalisation of land contradicts the interests of those who can monopolise it for their sake. The same is true of every social interest (maslaha ijtimctiyya) (I 281).
The sphere of these conflicting social interests is at the root of the social problem.
Science can bring no answer to this dilemma. Science can help discover the reality, and sheds light on the effect of a new chemical product or on the iron law of wages (I 283-4). But this hardly solves the social problem. Only religion can provide the solution, as the’sole energy (taqa) which can compensate man for [the loss] of any temporary [immediate] pleasure... [by convincing him] that present life is but a preparation to eternal life, and by creating in his mind a new perception of his interests, and a conception of profit and loss which goes beyond [is superior to] the mere commercial or material content’ (I 286).
Unlike historical materialism, which sees in the laws of history the solution to the social problem, in that classes are pitted against each other until the victory of the class which’ controls the means of production’, Islam views the contradiction as a way to vindicate the role of religion in the social process:
since a subjective interest will inevitably clash with the common good, religion can act to temper the dominance of the individual’s drive by tendering him an ideal of the Good drawn from a higher perception of worldly existence, which is then perceived as a step on the way to reward -or punishment -in eternity (I 284-6).
‘Islamic economics is not a science’
This teleological attitude which is another aspect of the premise in the building metaphor, and the emphasis on an approach to economics that subordinates it to a totality ultimately determined by religion, is substantiated by the thesis that’Islamic economics is not a science’ (I 290-4) and by the presentation of a critique of the Marxist correspondence between mode of production and social relations (I 295-305).
The first thesis is central to the methodology later followed for the development of the alternative Islamic view of economics. Unlike Marxism, Islam does not pretend to be a science:
In that sense, Islamic economics resembles the capitalist economic doctrine, for it is a means of changing reality, and not a means of explaining it [i.e. Marxism tries both to explain and change]. The doctrinal task facing Islamic economics is the unravelling (discovery, kashf) of the whole picture of economic life according to Islamic legislation (tashri1), and the study of the general ideas and concepts that emanate from (tashu") this picture (7 291).
The prolegomena of the method are laid out in this text: by not pretending to the scientific method, Islamic economics will start from its social goals, and conflate the economic reality with them. Science can and will be used for the assessment and clarification of the reality, but it is throughout secondary to the end sought. But how is this end discovered ? In the Qur’anic precepts, of course, but also in the more precise and more comprehensive legal body that derives from the Qur’an and the Sunna, accumulated throughout the centuries.’The operation of discovery of the economic doctrine’ will be discussed later in more detail, and the role of the law, particularly in jurists’ works, fleshed out. But the system needed a frank appraisal of Islamic economics as an ideological doctrine not subordinated to science.
Unlike Islam, Marxism claims the scientific method. Sadr proceeds to refute the dangerous claim. Marxism, he says, is a doctrine which seeks to develop its conclusions in the process of changing the world according to its own’scientific’ assessment. At best, this constitutes a logically flawed circle.
Marxism, Sadr explains, apart from the previously discussed and illproven assumptions that’ productive forces make history’ (I 297 and first part), adopts as its central economic thesis the position that’ any development in the operations of production and its modes is accompanied by a necessary development in social relations in general, and in the relations of distribution in particular’ (I 296).
This, for Islam, is incorrect. There is no necessary connection between these two elements.
Islam sees that man operates in two spheres: in the first sphere, man exercises his work on nature, and tries variously to exploit it and subdue it for the fulfilment of his needs.
In the second sphere, man exercises his work over relations with other individuals in several areas of social life. The forms of production are the result of the first sphere, and the social systems (anzima) the result of the second sphere. Each of the two spheres -in its historical existence -was subject to many developments in the mode of production or in the social system, but Islam does not see a necessary connection between the development of the forms of production and the development of the social rules (institutions, nuzum). It therefore believes that it is possible to conserve the same social system, with its functions and essence through the ages, whatever the differences between the various modes of production (I 296-7).
The analyst, Sadr continues, must distinguish between essentially different social spheres. Man in society functions according to two types of need. The first type is constant and unchanging, and is connected with man’s’apparatuses for eating, reproduction, perception and feeling’ (I 298). But these needs are determined on the other hand by a changing environment, and require that part of the legislation remain constantly open. In’the main sphere’ (al-janib ar-raisi), Sadr’s’Islamic social system’ includes’the basic fixed needs in man’s life, like his need to living allowances, reproduction and security, and other needs that were addressed in the rules on the distribution of wealth, the rules on marriage and divorce, crime and penalty (hudud wa qisas), and other similar rules in the Qur’an and the Sunna’ (I 299).
What is then left to the secondary (thanawiyya) sphere? These’open-ended aspects’ (maftuha lit-taghyir) Islam has allowed the ruler (wall al-amr) to submit to new legislation (yajtahid), according to the interests and needs of society. Sadr does not specify what these areas are, although he devotes a later chapter on the sway oiwali al-amr in the’ discretionary area’ (mantaqat al-faragh). But he acknowledges that there are also fixed rules that pertain to the main sphere, but vary in their mode of application, as in the rule of the’rejection of darar’
and the rejection of compulsion in religion (nafi alharaj fid-din) (I 299).
Against Marxism, Sadr proposes therefore the recognition of two types of social need, which constitute legal spheres with different regimes; and if the denial of historical materialism is not enough by way of logic, Sadr continues, it is sufficient to look at history. The historical materialists will scoff at the attempt of slaves or serfs to free themselves and to ask for equality before the modern age brought bourgeois ideals to the political arena. But did Islam not establish equality in the society of seventh-century Mecca and Medina? And has the hadith not established that’ no Arab will be better than a non-Arab except in piety’, and that’people are equal as the teeth of a comb (asnan almushty (I 301)?
The central economic problem
Capitalism’s central economic problem is, for Sadr, the scarcity of natural resources with respect to the demand imposed by civilisation. For Socialism, the central economic problem is the contradiction between the mode of production and the relations of distribution.
Islam disagrees with the capitalist outlook because it considers that nature has ample resources for mankind, and with the socialist outlook in that the problem resides not’ in the forms of production, but in man himself (7 307).
Man’s injustice manifests itself in the economic field as bad distribution... for when injustice is obliterated from the social forms of distribution, and the capacities of mankind are mobilised to exploit nature, then the real problem disappears from the economic field. (I 308)
Iqtisaduna’s thrust is therefore based on distribution, and the ways in which Islam has organised distribution to maximise the economic wealth by man’s exploitation of natural resources. The concept of distribution forms the bulk of Islamic economics analysed by Sadr and the main division of the book separates’distribution before production’ and’distribution after production’.
Before proceeding with the description of the distributional scheme, Sadr concludes the introductory section to the Islamic economics core with some remarks on two essential concepts of the doctrine, need and labour, from the perspective of the shari’a.
Labour and need
Central to the legal perspective is the fact that distribution is identified as the area in which the central economic problem of society is generated. The’apparatus of distribution’ is therefore discussed by Muhammad Baqer as-Sadr by way of the two concepts which underpin it, need and labour.’The apparatus of distribution, jihaz at-tawzi’ in Islam, is constituted by two essential tools: labour, (amal, and need, haja9 (I 308).
‘From the Islamic perspective, labour is the cause of the worker’s ownership of the result of his labour. This private ownership based on labour is a natural drive of man to appropriate for himself the result of his work’ (I 311). Consequently, whereas the communist rule is that labour is the cause for society, and not for the individual, to ownership [status]; the socialist rule is that labour is the cause of the commodity’s value, and therefore the cause of the worker’s appropriation of the commodity. In Islam, labour is the cause for the worker’s appropriation of the commodity, and not the cause of the commodity’s value. For when the labourer extracts a pearl, he does not thereby confer value to the pearl, but he possesses it by this very work [of extraction]. (I 312)
In Sadr’s theory, the concept of need functions in a way which is specific to Islam. He explains that in socialist theory, need is precluded by the centrality of labour. Each society comprises three main strata -a group which works and earns what it needs and more, another group which works but lives beneath its basic needs, and a group which is incapable of working for various reasons. In the strict logic of socialist theory, this last group is condemned, because there is nothing that’ justifies its earning a share of the general output in the operation of distribution’ (I 315). This stands sharply in contrast with Islam, where need is an essential component of distribution, which is regulated by the moral principle of’ general insurance and social solidarity in the Islamic society’ (I 313).
With need and labour, a third element underpins for Sadr the Islamic theory of distribution: Islam’s original view of property.’When Islam allowed the emergence of private property on the basis of labour, it contradicted both Socialism and Capitalism in the rights granted to the proprietor’ (I 321). In Islam, labour is the central concept from which property derives. All the forms of property must therefore be qualified. In this perspective, property becomes’a secondary element of distribution’ (I 321), and is always limited by a set of moral values and social interests established by religion. The general rule is that’private property appears only in goods (amwal) which have been mitigated in their composition or adaptation with human labour, excluding goods and natural resources which did not mix with labour’ (I 320).’ Land, for instance, is a commodity in [the constitution of] which labour does not enter. It cannot be owned as private property’ (id.).
The three elements forming the basis of the distributive apparatus of Islam are summarised by Sadr as follows:
Labour is a primary tool of distribution from the standpoint of ownership. The person who works in nature reaps the fruit of his work and possesses it.
Need is a primary tool of distribution as the expression of a human right which is essential in life. Islamic society recognises and supplies essential needs.
Property is a secondary tool of distribution, by way of commercial activity which Islam permits within special conditions which do not conflict with the Islamic principles of social justice... (I 322).
The essential social problem, injustice, is therefore’explained’ economically by Sadr in the context of distribution. Most of Iqtisaduna is devoted to the exposition of an Islamic distributive system deriving from the injunctions of Islamic law in the economic field. Before addressing the details of these legal rules, the Najaf scholar was still concerned with two further preliminary points:
First he briefly addresses the peripheral question of circulation (tadawul), which he discusses as another area where injustice is created, since money becomes a commodity ready for hoarding or using, not as a means to facilitate circulation, but as an object of wealth per se. Islam, in Sadr’s view, was careful to prevent this predictable twist of events so typical of capitalist societies. Capitalism severs money from its circulation use, and uses it for its own sake. But the right balance is restored by three essential prescriptions of the shari’a: the payment of taxes izakai) which directly deflects the propensity to hoarding, the prohibition of riba’ and the discretionary intervention of the ruler (I 322-31).
Then he argues for the need to establish methodologically the intimate connection between law and economics, and the precise role of the shari’a in the discovery of the discipline of Islamic economics.
The method of Iqtisaduna: law and economics
The premise on which the whole method of Iqtisaduna is based derives from the distinction between doctrine and science, in which madhhab (doctrine, school)
is defined as the way a society pursues its economic development and addresses its practical problems; and’Urn (science, knowledge), is defined as the science which explains economic life and the links between economic facts and the causes and factors which determine them.
From this central distinction, Sadr draws a number of conclusions and corollaries, which we can regroup here into four theses:
Thesis 1: Islamic economics is a madhhab, a doctrine, not a science,’Urn. It shows the way to follow in the economy, and does not explain the way economic events occur.
These two areas of doctrine and science must be clearly separated in the approach to Islamic economics. It is pointless, argues Sadr, to look in Islam for a science of economics. Such a discipline simply does not exist. There is in Islam nothing resembling the writing of thinkers like Ricardo or Adam Smith (I 338). The epistemological mistake in pretending to the economic scientific status of Islam derives from a refusal to appreciate that what Islam offers is not the established conclusions of a science of the economy but guidelines offered by the doctrine.
Thesis 2: Islamic economics is based on the idea of justice.
The doctrine in the case of Islam is a powerful reality based on one central concept, economic justice (al-’adala al-ijtimaiyyaa). No wonder then that there exists no science of Islamic economics, since the concept of justice does not belong to the realm of science. Justice is by essence an’ethical appreciation’ (taqdir wa taqwim khuluqi) (1339). Thus, concludes Sadr,’the concept of private property, of economic freedom, of the prohibition (ilgha’) of interest, or of the nationalisation of the means of production, all of these come under the doctrine, because they are related to the idea of justice. In contrast, the law of decrease in profit,
the law of demand and offer, or the iron law of wages, are scientific laws’ (I 339).
Corollary: The concepts of halal (the permissible), and haram (the prohibited) in Islam are present in all walks of life, and they help put Thesis 2 in practical perspective. Through the idea of prohibited and permissible actions, it is possible to discover the details of the doctrine of Islamic economics (I 341). Halal and haram being the two central concepts of Islamic law, it is necessary to turn to the law for the programme of Islamic economics.
Thesis 3: Islamic law is the preferred way to Islamic economics.
Sadr starts out by stressing the impossibility of equating law and economics, whether in Islam or in any other school of thought. Many countries have a capitalist system, but some follow laws of Germanic-Romanic origin, whereas others have adopted the Anglo-Saxon tradition.
This notwithstanding, there remains a strong connection between law and economics. In terms of civil law for example, the centrality of the notion of obligation and the contracting parties’ free will are at the heart of legislation on contracts, such as sales and lease. Similarly, in the law of realty, property is the central absolute right, and the legislation will abide in its various manifestations by respecting and securing this absolute right. In both cases, if the legal notion of obligation derives essentially from the concept of free will, and if the law of realty is essentially based on the concept of free ownership, they are both rooted in the doctrine at the heart of the capitalist system, which is the belief in freedom and the individual’s right freely to contract and possess (I 342-4).
This can be further exemplified, adds Sadr, by the fact that in the twentieth century, the absoluteness of individual rights has been undermined by the rise of collective rights. The law of obligation, and the necessary accommodation of collective contracts, as well as the law of property, and the right of the state to proceed to expropriation, followed suit.
These remarks clarify the validity of the method chosen to expound Islamic economics. In order to understand the economics of Islam, the way to proceed is to start from the law, and from the operations of the law, develop the mechanisms of the economic structure. Sadr again uses the metaphor of a building, and the familiar Marxist concepts of superstructure and infrastructure. Civil law, in this scheme, is the superstructure, the upper floor (bind" fawqi) resting on the economic basis (qctida) of the building (I
343). The way for the Islamic thinker is therefore to proceed from this legal superstructure to discover the underlying economic foundation. This represents an exercise in discovery (iktishaf) which constitutes the distinctiveness of the Islamic method, in contrast with the intellectual process of formation (takwiri) which characterises Western economic theory.
Thesis 4: Islamic economics is based on discovery, not on formation.
The particular methodological course of Islamic economists sums up in Sadr’s system the difference in attitude between these scholars and scholars who study any other economic system. Whilst the scholar looking into capitalist and socialist economics will directly relate to the writings of their pundits, without, as in the case of Adam Smith or David Ricardo for instance, having to worry about their legal views, the starting point for the scholar of Islam’will have to rest on a different method’. The Islamic scholar has in fact little choice, because classical economic writings are not known to Islam, and because the methodology premised on the prohibited-permissible paradigm laid out by the Qur’an requires inferences drawn from the superstructure, the law, to the infrastructure, the economy:
We can define this method in the light of the sequential relationship (Hlaqat attaba’iyya) that we explained earlier about the doctrine and the law. So long as civil law constitutes the upper floor (tabiq fawqi) in relation to the doctrine, is built on the law, and draws its directives from it, it is possible to discover the doctrine by way of the law, if we know the law upon which the unknown doctrine is based. It is then necessary for the discovery process to look for the irradiations (Vs/z’a’ar) of the doctrine in outer circles, i.e. on its superstructures and the effects that it reflects in various fields, in order to reach through these irradiations and effects a precise appreciation of the type of ideas and theories in the economic field which hide behind these manifestations. (7 348)
This passage is the central epistemological tenet of Sadr’s’ topsy-turvy’ (bi-shakl maqlub)u economic system (7 349). From it derives the whole structure of Sadr’s discoveries. In the civil law and the financial system as presented by the classical Islamic jurists, he reads throughout Iqtisaduna regulations which he then moulds into a modern economic phraseology.
But the regulations, Sadr acknowledges, are larger than the system’s economics. When Islam enjoins the prohibition of riba, the absence of interest-bearing loans is part of a general legal superstructure which is specific to an Islamic economy. But the prohibition of fraud (ghishsh) carries no particular significance for the Islamic economic doctrine, since all economic systems share the prohibition. In a related distinction, the’two taxes of balance (tawazun) and jihad’ operate in a markedly different manner.
Whereas the tax for social balance, as in the case of zakat, is part of the discovery process, and helps define the economy of the system,’the jihad tax is related to the role of proselytism (dalwa) in an Islamic state, and is not connected with Islam’s economic doctrine’ (7 351-2).
Together with legal injunctions, the discovery can be aided by what Sadr calls concepts, mafahim, which are akin to elements of a Weltanschauung.
These world view pillars tend to be generalities dealing with the Islamic perception of the universe, man, society, and nature, and do not constitute positive law. But they help clarify the mould in which the economic system operates. Such is the case of the Islamic view of the place of man in the universe, as the successor/deputy of God on Earth, and of general conceptions of ownership or circulation:’We thus know that Islamic views of the world can constitute an intellectual framework for the economic field.
This framework is essential, for it allows legal texts to manifest themselves, through it, in a comprehensive manner’ (I 355).
These elements based on the Islamic world view are also important to understand the place of the government’s intervention, which is so central to both Sadr’s system and the actual economic and institutional questions that have rocked the Iranian debate since the revolution.
Mantaqat al-faragh, an essential concept in Sadr’s system, is the discretionary area of the ruler in society, and his interventionist role as prescribed by the law. As mentioned earlier, Sadr avoids in Iqtisaduna the problem of the ruler’s legitimacy, and the way he is to be appointed to power.
His’just ruler’ is the hakim shar’i of the Shi’i tradition, but he is also simply called imam (with a non-Shi’i connotation). The premise is the existence of an Islamic ruler who governs the society on the basis of the law, and Iqtisaduna offers in the last chapter some of the tasks which the ruler can and ought to perform to redress the social balance in view of the economic problem.
At this point in his study, Sadr is therefore only concerned with how to discover the economic theory of Islam and its incidence on the ruler’s area of discretion. Since the sharfa is the preferred way to this discovery, the special’economic’ reading of the jurists must be examined in more methodological detail. Primal to the epistemology of Iqtisaduna is the relation between economics and the shari’a.
A long section is devoted to the process of reading the law. This is developed along two lines: the necessity of ijtihad, and problems of objectivity.
Muhammad Baqer as-Sadr’s section on ijtihad is important because of the role of the concept in the Shi’i context. Sadr was careful to avoid the pitfalls of Shi’i sectarianism in most of his major treatises, particularly in his works on philosophy, logic, economics, and banking.
His success in this score in the Sunni world, where his works have been used in the universities, is testimony to the importance of the universalism of his contributions on the Islamic stage. This is particularly true of Iqtisaduna, where the use of the concept of ijtihad is similar to the one found in the understanding of Sunni reformists in the century from Muhammad’Abduh onwards. In this understanding, ijtihad is a creative process in the realm of the law, where rules to be found in the Qur’an and Sunna are interpreted to fit the requirements of the modern age.
Sadr insists on the necessity of this creative process, and legitimises by the same token the special place of the shari’a in discovering the Islamic theory of economics. It is true, he writes, that it would normally be sufficient’to bring up the texts of the Qur’an and the Sunna to gather enough rules and concepts, by which one will end with general doctrinal theories... But the texts do not manifest -generally -their legal or conceptual content in a clear precise manner’ (I 359). It is therefore inevitable to make a further effort to draw up economic rules. This is the essence of the process of ijtihad.
Obviously, different mujtahids will explain the economic reality with various points of view. This, writes Sadr, is a normal phenomenon. The danger starts when the process gets undermined by’subjectivism’ (dhatiyya).
In the field of economics, as opposed to areas related to rules concerning the individual, the threat of subjectivism looms larger because of the long historical separation between the setting down of the original rules and their present application.
Subjectivism is further explained as the danger of’justifying reality’. In the case of banking for instance, it explains riba as usury and not interest, so that the widely practised loan for interest can be justified. Secondly, justifying reality can take the form of a text which is interpreted in a framework which is not Islamic. This is the case of private property, which is construed to be all-encompassing, when it is actually limited to a specific and narrow domain. Thirdly, Sadr warns against’abstracting legal evidence from circumstances and conditions’ surrounding it. This is called in fiqh terms taqrir, which Sadr defines as’the silence of the Prophet or the [Shi’i] Imam over a specific act that he witnessed, a silence which reveals his allowing it and hence Islam’s acceptance of it’ (I 365). Such a silence, as a rule, is agreement. But this form of abstraction cannot work in a situation which is much more complex today than it was in the days of the Prophet, objects Sadr. For instance, many forms of industrial production are being related to a permission given to similar, much more straightforward situations of early Islam, and this is methodologically incorrect as an anachronism justifying present practices.’ Reality today is full of examples of capitalist production and extractive industries, which take the form of the work of salaried employees who extract mining resources such as salt or oil, and a capitalist who pays them wages and considers himself as the owner of the commodity extracted. The employment [lease] contract (‘aqd al-ijara) appears today normal in its content-i.e. the employee receiving the salary and the capitalist being the owner of the commodity...’(I 366-7). By way of taqrir, and on the face of the analogy, the silence of the shari’a on this type of ijara becomes evidence of Islam permitting it. However, Sadr remarks, there is a major flaw in the reasoning, because this form of abstraction ignores the original circumstances of permission, the fact that this practice was not widely known at the time of the Prophet. It is guilty of’ abstracting the living behaviour (suluk mu’ash) from objective circumstances, and projecting this behaviour backwards to legislative times’, i.e. to the days of the Prophet or the Imam (I 364-70).
Another problem with subjectivism lies in the preconceived positions of the reader of the law who tries to apply it to the theory of Islamic economics.
In other words, it is the problem of the lawyer looking into the classical texts for rules that fit what he is looking for to complement his economic system.
Subjectivism, he explains at length (I 370-84), is sometimes inevitable:
Ijtihad is a complex operation, which is fraught with doubts on all sides. However cogent the result may be in the opinion of a mujtahid, he cannot absolutely be certain of its correctness in reality so long as an error can be thought of in his reasoning. This can be caused [by a number of reasons]: the incorrectness of the text vis-a-vis reality (even if it seems to him correct); a misunderstanding of the text; the way the text is reconciled to other texts, or because the [conclusions drawn from] a text do not include other texts of significance for the subject-matter, which the practitioner has ignored, or which have been forgotten by the centuries. (I 373)
None the less, concludes Sadr, the lure of subjectivism should not deter the mujtahid’ effort in the realm of economics. There is a unity and a comprehensiveness in the legal world of Islam.’The belief [in the reality of such a legal world] has made us [Sadr] consider the legal rules as a superstructure, which must be transcended to reach what is deeper and wider, and discover the bases upon which this superstructure stands and with which it accords’ (I 374). Ijtihad will no doubt include mistakes, concludes Sadr, but it is a correct and necessary exercise to discover in the law the way to Islamic economics.
In a final important methodological remark addressed in this part of Iqtisaduna, Sadr uses the problems and difficulties faced by the mujtahid in his endeavour to elaborate on a topic which appears central to the concerns of the Middle East in the sixties. It is the problem of the equation of Islam and Capitalism. The example used to undermine this assumption is drawn from another aspect of the error embedded in the’ justification of the reality’ approach. The mistake takes the form of what he described as’ the deceit of practical reality, khidai al-waqe’ at-tatbiqi (I 378-84).
In the same way as a theoretical study of Islamic economics is possible by way of perusing the classical legal texts, Sadr defends the idea of the study of the Islamic economy through some of its early application. Applied economics can be analysed, Sadr argues, thanks to the period, however short, of the Prophet’s life (I 378).
Such a study of applied economics remains obviously limited, since it is harder to generalise from the few relevant instances that have reached us from that epoch. This is particularly true for the generalisation which draws together Islam and Capitalism.
‘ I do not deny’, says Sadr,’ that the individual in the society of the Prophet’s era was carrying out a free activity, and that he retained his freedom to a large extent in the economic field, and I do not deny that this reflects the capitalist aspect of Islamic economics’ (I 379). But there is a contradiction between this practice, which is related to us in a number of cases, and the theory which reaches us from the legal rules. This contradiction can be solved by favouring the latter over the’ deceit of practical reality’ because of man’s limited power over nature at the time (I 380):
Those who thought that the Islamic economic theory is capitalist, and that it believed in capitalist freedom, would have some excuse if they drew their conclusions [feeling] from the study of man in the time of praxis [i.e. at the time of the Prophet] and from man’s extent of freedom. This is however a mistaken feeling (ihsas khade’), because the intuition derived from looking at the praxis cannot stand in lieu of the established facts of legal and jurisprudential texts, which disclose a non-capitalist content. (I 382)
This does not mean that Islam constitutes some early brand of Socialism, and Sadr hastens to add Islam’s rejection of its socialist nemesis, a thesis he had defended lengthily in the first part of 1qtisaduna. These theories were in Iqtisaduna’s first part negative, in that they tended to show why Islam differed in its economic and social outlook from the two prevailing world systems. The rest of the book is devoted to a positive exercise. Through the reading of the law, in a relationship which has now been methodologically justified, Sadr sets out to unveil the structure of Islamic economics in its tradition of independence and purity by a detour in the jurists’ works (I 384).
Distribution and the factors of production
Factor one. Land
As presented in Sadr’s methodological remarks, the substance of Islamic economics is centred on the analysis of the distributive apparatus of Islam as can be constructed from the legal texts.
Distribution is divided in two, distribution before, and distribution after production. Under the former, four factors are identified as the natural resources for production (masadir at-tabila lil-intaf): (1) land; (2) raw materials, mostly mining resources; (3) water; and (4) the remainder of nature’s resources (sea, pearls, game etc.).
For modern times, access to land is considered the most important economic factor. Iqtisaduna devotes its longest section to the analysis of rights attached to land.
A: Land historically determined
In Sadr’s reading of the classical jurists, the ownership of land cannot be separated from the way a particular land came under Islamic rule:’The ownership of the land in Iraq is different from the ownership of the land in Indonesia because Iraq and Indonesia differ in the way they embraced Islam’ (I 394). Three general types of land can be derived from the historical pattern: (1) land which’became Muslim’ by conquest (fath), such as Iraq, Egypt, Syria, Iran, and’many parts of the Islamic world’ (I 394); (2) land which became Muslim by persuasion (da’wa); and (3) land of agreement (sulh).
AI: Land of conquest
In the land of conquest, a distinction is made between (a) man-made prosperous land at the time of the conquest, (b) dead land at the time of conquest, and (c) land that was naturally prosperous.
AIa: Man-made prosperous land: public property
Both Shi’i and Sunni jurists, Sadr writes, agree that the land of conquest which was cultivated at the time of the victorious drive of Islam is the property of all the Muslims. Private ownership thereof is consequently forbidden. Fruits and profits reaped by the labourers on this land are, in principle, the property of the community (utntna), and the worker who exploits the land must pay tribute [to the state] as if he were only renting it.
The price of rent is called kharaj, and the land consequently classified as kharaj land. There is no private ownership of kharaj land. It falls under public control. Sadr is careful to specify in this regard that control is in this case different from nationalisation. State ownership of kharaj land is described as’public’ (lamma). To clarify the distinction between nationalisation and public property, he invokes the refusal by Abu Bakr, the second Rashidi Caliph (ruled 634-44), to divide conquered land among the soldiers, because land is different from the booty of war, ghanima. Unlike war booty, which is distributed among the Muslims, conquered land is destined to be forever the property of the umma.’Public property of land in Islam is an original device. It is not a nationalisation which occurs at a later phase, after the establishment of the principle of private ownership... Public ownership of conquered land [attaches to it] as an original character’ (I 339).
Public ownership of prosperous land which became Muslim by conquest bears the following legal features:
(1) It is not subject to the rules of succession and inheritance.
(2) It is not subject to alienation or to any form of contract, except for the initial lease between the labourer and the state represented by the imam.
Sadr quotes the Shi’i jurist, Muhammad Ibn Hasan at-Tusi (d.
460/1067):’There is no right to sell, purchase, trade off, inherit, bequeath or sublet [this type of land]’ (I 405).
(3) The head of the state (wali al-amr) is considered responsible for the control of the fructification of the land, and for the kharaj imposed on the tenant.
(4) The kharaj paid by the labourer is public property.
(5) As soon as the lease ends, the land becomes independent of the former tenant.
(6) If once prosperous land withers away, it retains its public character, and its revival (reclaiming, ihya’), does not allow the person who revives it to become its owner.
Finally, as for all types of land, prosperous land which becomes Muslim by conquest is determined historically, and’on this basis we need for today’s practice a wealth of historical information on Muslim lands and how prosperous they were at the time of the conquest’ (I 407), so that the proper category of each can be specified. To find whether a particular lot was prosperous requires a thorough historical investigation.
Alb: Dead land at the time of the conquest: state property
Like kharaj land, this land is not subject to private ownership. But its status falls under the category of state property, milkiyyat ad-dawla. Both state property and public property appear similar, in that they suggest an ownership in common, which conflicts with individual ownership. But state property attaches to the position (al-mansib), i.e. to the ruler qua ruler, whereas public property attaches to the community, al-umma. The difference is important in Sadr’s scheme because of the legal regime deriving from each of the two categories. The main legal differences are described as follows:
(1) The exploitation of kharaj land (public property) benefits the whole community. The wali al-amr cannot use it for the sake of a particular person or group. He must exploit it for the benefit of the community as a whole, for instance by way of using kharaj money to establish schools or public hospitals. In contrast, the wali has more leeway in dead land falling under state property since he decides whether a particular interest might benefit from its fructification. He can consecrate the land to narrower effect.
(2) The ruler (imam) has the right to grant an individual the property of dead land if he deems it of general interest. This is totally forbidden in the case of public property.
(3) A contract of sale or lease can affect dead land.
(4) In case dead land is revived, the imam can grant the labourer a special right, even though control (raqaba or ruqba) remains a state prerogative.
The main difference between dead land and prosperous land at the time of conquest appears in the consequences of their revival. In the case of prosperous land, revival does not add a single right to the reviver, even though the land might have been left barren for years. Revived dead land, on the contrary, grants the reviver a special right. A hadith is invoked in support of the distinction:’Whoever revives land that belongs to nobody has a better title to it’ (I413).
There is a controversy as to whether land in this case changes its status from state property to become private land. Some ‘ulama consider this to be the case, but Sadr leans towards the more restrictive interpretation of Tusi, according to whom the land retains its initial status, although the labourer who revives it can benefit from his deed and prevent others from competing with him on the same land as long as he still works on it. He is however subject to a special tax, the tasq, which is imposed by the imam according to the profits he gets out of the land exploitation.
‘ Thus’, concludes Sadr,’ the difference between the farmer who works on public property and the farmer who works on state property is that... the former is a mere tenant, musta’jir.’ The imam, as landlord, can let the land to someone else once the lease is expired:’Whereas the latter [i.e. the farmer who works on state property] has a right over the land which entitles him to usufruct (intifa’), and will continue to prevent others from working the land as long as he takes care of it and makes it prosper’ (I 422).
AIc: Naturally prosperous land
This land is defined as land which had been prosperous without man’s intervention at the time of conquest, such as forests.
Sadr’s description of the legal regime of naturally prosperous land is confusing. In one section, he suggests that it is not any different from land which was revived, and adds that whether it came under Muslim rule by conquest or not does not affect its status:’ Naturally prosperous land is state property regardless of whether it was acquired by force’ (I 421). This third type of land of conquest, which prospered without the intervention of human labour, is and remains state property, the fate of which is decided, like the dead land, by the imam.
On the other hand, he suggests also that’forests and naturally prosperous lands which are conquered by force and taken from the hands of the heathen (kuffar) are the public property of the Muslims and when forests enter the ambit of public property..., they become land with an owner. The owner is then the whole community’ (I 420-1).
A2: Land of persuasion
Sadr describes this category as land whose dwellers answered the call of Islam willingly and without any pressure of either threat or violence. This was the case in Medina or Indonesia.
This land, like the land of conquest, is divided into three types:
(a) Man-made prosperous land of persuasion (i.e. which came to Islam willingly). It remains as it was before Islam. Private property thereof is absolute, and no kharaj can be taken from its inhabitants.
(b) Dead land of persuasion. This land is, in contrast to the previous type, similar to the dead land of conquest. It is anfal, which falls by definition under state property.
(c) Naturally prosperous land of persuasion. It is also state property on the basis of the legal maxim:’Any land without an owner is anfal (I 421).
The difference between (b) and (c) in terms of legal regime is that the revival of dead land confers on the reviver a’private right’.
A3: Land of agreement
To this category belongs the land whose inhabitants neither fought Islam as in the land of conquest, nor embraced it willingly as in the land of persuasion.
It became part of the Muslim world without its inhabitants relinquishing their religion.
The status of man-made prosperous land in this category depends on the agreement by which its inhabitants became part of the Muslim world. In case the expansion occurred on condition that the land remained the property of the non-Muslim inhabitants, the agreement will be honoured. But dead land and naturally prosperous land follow the rules which govern the equivalent Muslim land by conquest: they are state property, unless there has been an initial agreement otherwise (I 423-4).
B: The requirement of constant exploitation and the theory of land ownership
Whatever the specific category a piece of land falls into, it is subject to an important requirement: the owner, if there is one, must constantly exploit the land. When land is forsaken and turns sterile, it falls automatically outside the legal reach of its owner. Furthermore, if the person who takes care of the land dies, the rules of inheritance govern his succession, including the land, but his descendants who come into property are bound by the same requirement of constant exploitation. If they fail to do so, land which has become non-productive because of their negligence becomes public property (I 428).
The concept of work, as well as the concept of revival, are essential to the general theory of land ownership in Sadr’s system:’Thus we understand that the privilege over land -by derived or original right -is conditional upon the accomplishment by the individual of his social function (wazifa) on the land. If he abandons it and lets it wither until it dies, his relationship to it is severed. The land becomes free of any tie with him’ (I 429).
Thus unwinds the second characteristic of the Islamic theory of land in Sadr’s system. Next to the historical characteristic, which determines the original status of a piece of land, Sadr develops in Iqtisaduna an attachment to land ownership which indicates a strong’radical’ tendency: the exigency of labour to perpetuate and protect the right of ownership.
Sadr allows room for private ownership, as in the broad case of the land of persuasion where the owners who were initially exploiting it retain their privilege as long as they keep working the land, and as in the more exceptional case of the land of agreement, where private ownership of the non-Muslims is respected in return for a tax. But’the [general] principle is state property of the land. Besides this principle, there exists a right of revival which grants the reviver -or the person who received [through inheritance] the land from the reviver -a privilege on the land. This privilege remains as long as revival is maintained...’(I 430).
In the case of kharaj land, change of status is impossible. The general right of state ownership cannot be stripped away. Kharaj land is said to be held in trust (mawqufa). The difference of the right of the state to kharaj land and its right in case of absolute property lies in the possibility for the imam to grant specific individuals or groups the right to exploit the land and pay kharaj in return.
Sadr concludes by recapitulating the two sources which can permit the individual’s relative right to appropriate the land and its fruit. They are both expressed in the concept of’labour’: (i) revival,’which is economic by nature’, and (2)’political work’ (I 437), which is understood as the early effort of Muslim soldiers, who, by their military’work’, succeeded in opening the land to Islam and extending control over it.
Revival, as opposed to political work, remains relevant as a perpetual condition of ownership. It is important in the case of the dead land which is rehabilitated and thus possessed by the reviver. But it also permeates all subsequent rights because the privilege remains as long as the reviver or his heirs keep fructifying the land. If land becomes Muslim by conquest,’ political work is considered the work of the community, not the work of an individual, and therefore the community becomes the owner of the land’ (7438). If land becomes Muslim by adherence of its inhabitants to Islam, then room is left to private ownership. However,’the right of private ownership is not granted in an absolute way, and [Islam] has conditioned it upon the exploitation of the land by its inhabitants. If they abandon the land, a number of scholars like Ibn al-Barraj (tenth century) and Ibn Hamza (d. after 566/1171) consider it to become again the property of the community’ (I 439).
Summing up the theory of land property, Sadr tries also to connect it to the more general scheme of the system he proposes.
The category of property falls in this scheme within the general theory of distribution before production (I 430). For Sadr, it is important to strip the economic content of the Islamic rules of property from the contingencies of’political considerations’ (I 430), and thus to complete the description of the theory of land.
A general theory can now be sketched:
The land, by nature, is the property of the imam. An individual does not possess a right of control, ruqba. A personal interest (security, specialisation, ikhtisas shakhsi) is not valid, except on the basis of the labour spent by the individual on the land to prepare it (i’dad) and exploit it (istithmar). This security, or the right gained by an individual as the result of his work does not prevent the imam from excising a tax (tasq) on the revived land, so that all of mankind can profit from it. This does not prevent [the imam] relieving [the labourer] from the duty of tasq sometimes, in exceptional circumstances. (I 433)
Sadr acknowledges that’the history of private property over land is full of injustice and exploitation, as land becomes inaccessible to the masses inasmuch as it opens up to some of the privileged’ (I 436). This adulteration of history, it is suggested, runs against Islamic principles, although the position of Sadr is not too clear on this point. He writes that’we do not negate the elements of violence and occupation (ightisab) and their role in history’, but in the chain of events, he sets the principle of labour at the centre of the theory of land ownership before’ the operation of occupation’ (I 434-5).
Factor two. Minerals
The second element of wealth to be distributed in the pre-productive phase of the system is constituted by minerals. The legal question posed in the theory is whether minerals follow land, i.e. whether a mineral follows the same legal regime as the land in which it is found.
The answer is negative. For minerals’to be in the land of an individual is not reason enough, from a jurisprudential point of view, for their ownership by this individual’ (I 454). The theory of land ownership is based, as developed earlier,’ on one of two reasons: by revival, or by the entry of the land into the ambit of Islam by voluntary conversion. Revival creates a right vested in the reviver, and the voluntary embracing of Islam makes the convert an owner of the land. Neither of these two causes extends to the minerals found inside the earth. They are limited to the surface’ (7 455).
There is in Sadr’s reading of the classical jurists a separate theory of minerals based on their classification as’external’ or’internal’. Internal minerals are’any minerals which require, for the manifestation of their qualities [as useful minerals], to be worked on and developed, such as iron or gold’ (I 444). But external minerals should not be understood,’as the word may suggest, in the sense that they do not need excavation and work in order to reach them, but they are minerals the mineral nature of which is manifest, whether or not man requires work to reach them’ (I 443).
The importance of work in this distinction does not lie in the difficulty to reach the internal or external minerals, but in whether, once the minerals are reached, work is necessary to develop them in order to render their mineral qualities’operational’.
Among external minerals, following jurists such as al-’Allama al-Hilli (d. 726/1325),’Amili (d. 1226/1811), Shafi’i (d. 204/820) and Mawardi (d. 450/1058), Sadr lists salt, oil, sulphur (kabrit). Among internal minerals are gold, iron, silver (I 445-7).
The legal status of external minerals is that of’ public property’.’ They are publicly shared among the people, and Islam does not recognize the title of anyone to them’ (I 444). Only the state, or its representative, can exploit them.’As to private projects by which the individuals exploit these minerals, they are absolutely forbidden’ (I 445). The most any individual can profit from external minerals is restricted to his personal need.
Internal minerals are subdivided into two: internal minerals which are found near the surface, and’hidden internal minerals’ which require double labour: first to reach and excavate them, then to treat them in order to bring out their mineral’quality’. The legal status is different in each case. For internal minerals near the surface, says Sadr,’the jurists do not allow private property for the appropriation (control, ruqba), of the mineral, but [as in the case of external minerals], they allow the individual to take from the minerals a reasonable quantity for his needs’ (I 449). On this issue, there is agreement among the jurists.
In contrast, hidden internal minerals have given way to a debate. Some like Kulayni (d. 329/941), Qummi (d. 1231/1816), and Mufid (d. 413/1022), consider them as anfal, and anfal is state property. Others, like Shafi’i, consider them to be public property, shared by all the people (7 449).
‘ The question is whether the individual can own the mines of gold and iron as private property if he discovers them in his excavation’ (I 450). Many jurists answer in the affirmative, considering excavation as a form of revival, but put limits on ownership. What is included in the property is’ the material discovered by excavation. It does not extend to the depths of the earth, to the ores of the mineral and its roots This is what is called in fiqh the mineral’s contiguous area, harim al-ma’dan (I 451).
These limits once set, Sadr concludes that even with potential privatisation,’ this kind of property is very clearly different from the ownership of natural resources in the capitalist doctrine, because it is a kind of property which does not differ from being a type of division of labour among the people. It cannot lead to the establishment of private monopolistic enterprise, in the fashion of enterprises in capitalist society’ (I 452).
Factors three and four. Water and other natural resources
The third and fourth factors of production are water and other natural resources, which Sadr discusses briefly. The legal regime of water has two aspects. Manifest water, i.e. open resources (masadir makshufa), is considered public property. A person will take from it the equivalent of the effort invested in getting it, such as pumping it with a machine, or digging a hole to retain it. Hidden water, water which is not immediately available, will give the person who discovers and extracts it a priority to the extent of his needs. Any excess can be acquired by others (I 466-8).
Other natural resources are considered’public domain, mubahat’amma’ Amongst these are game and forestry, which’can be appropriated to the extent of the labour necessary to achieve their acquisition’ (I 469). A bird which falls inadvertently into someone’s property does not automatically come into his possession. Only positive work (in this case going out hunting) will permit possession.
The discussion of the four factors forming part of the pre-productive stage in Sadr’s system is, at this point of Iqtisaduna, complete. By drawing on the works of the classical jurists, Sadr introduced his own view of the legal regimes affecting the distributional system related to each of these elements.
Among the critical questions addressed was the issue of oil, which Sadr solves in a’radical’ fashion. As an’external mineral’, oil is considered to be in law subject to’public property’, and private persons are not entitled to exploit oil fields. Only the state can put it to profit for the benefit of the public. But the most important source of wealth in Sadr’s analysis is, not surprisingly, the issue of land ownership. A critical question in postrevolutionary Iraq, it proved to be also a major contentious point in the immediate years following the success of the Iranian Revolution.
Once the empirical description is completed, Sadr proceeds to the wider stage in the analysis, and attempts to draw a picture of’ the general theory of distribution before production’.
Conclusion: The general theory of distribution before production
Once the legal rules on the distribution of factors of production are laid out, Sadr proceeds to the next level of abstraction, which is the theory of distribution per se.’This is’, he writes,’the second half of the discovery process which goes from the superstructure to the basis, and from legal details to theoretical generalities’ (I 473).
In the early methodological parts of Iqtisaduna, and in the efforts to describe a theory of land ownership, Sadr had at times attempted to draw some more general conclusions from the details of legal rules found in classical jurisprudence. Here he is concerned with giving a fuller picture of the whole economic system. The emphasis shifts to comprehensiveness.
For Sadr, the theory of distribution has two aspects, negative and positive.
The negative aspect manifests’ the belief in the inexistence of property and primary private rights attached to raw natural wealth [which would exist separately] from labour’ (I 474). Whether land, water resources, or hunting,’the individual has no private right a priori, which would distinguish him legally from any other individual, unless this distinction be a reflection of a specific work’ (I 475).
The positive side rests, conversely, in the element of labour.’ Labour is a legal basis for the acquisition of rights and private entitlements in natural resources’ (I 476). From the principle that only labour confers private rights, derive three corollaries. The first corollary is fixed, and consists in an identification of labour and property. The two other corollaries are variable.
The emergence of a right or entitlement will depend on (a) the type of labour, and (b) the type of private rights created by labour (I 478). The combination of the principle and the corollaries make up the whole system which, for Sadr, informs the superstructure. The most interesting examples in the system are the following (I 479-81):
(1) Dead land revived by the labourer will prevent the claim of any other person over it.
(2) Prosperous land farmed by the labourer will remain in the labourer’s keeping, as long as he keeps working it. The difference with the dead land is that the reviver of the dead land loses his right over it only if he abandons it long enough for it to become dead again. In the case of the prosperous land, the private right ceases as soon as exploitation stops.
(3) A mine which would be discovered gives the discoverer priority on the field, but if another person reaches the mine by a different way, he would also have the right to exploit it.
(4) The person who digs a well is entitled to use it to the extent of his needs.
Beyond these needs, he cannot prevent others from having access to the water.
This recapitulation allows Sadr to sum up his distributional scheme at the stage of pre-production. Labour is a primary source, but different kinds of labour entail different legal consequences. An element of opportunity is hence introduced. It is true, he notes, that there is a factor of labour both in the process of reviving a dead land and in the process of farming a land which is already prosperous. The difference, however, is that revival entitles the creation of an economic opportunity which does not pre-exist labour in the case of the prosperous land.’ The discovery of the connection between the labourer’s right to natural resources and the opportunity created by labour in this resource entails that the right of the individual attached to a natural resource ceases if the opportunity created vanishes’ (I 487). Consequently,’ the general criterion for allowing or prohibiting non-labourers from taking advantage of the natural resources which have been revived by labourers, or in which labourers have created the opportunity [for wealth] resides in the degree of influence over the opportunity that labourers have created by reviving natural resources’ (I 490).
Sadr includes within this scheme all types of appropriation of wealth. What is true of land is also true for hunting and mining, and these rules are summarised in the following text :
[The general theory of distribution before production] is exemplified by the revival of a mine, or a water resource hidden in the depth of the earth, in the same way in which it happens for the revival of land. The [amount of] labour which achieves the operation of revival creates the opportunity of exploiting the natural wealth which [the labourer] revives, and he owns this opportunity as the fruit of his effort. It is not permissible for another to make him lose this opportunity. The labourer has the right to prevent others from taking the resource (marfaq) away from him. This can be considered the right of the labourer over a land, a mine, or a water resource... But the practice of farming in a land prosperous by nature, or the use of a land for cattlegrazing, are activities which, though being exploitation and fructification of natural resources, do not justify the existence of a right for the farmer or the shepherd in the land... What is justified in this case is the ownership of the fruit that the farmer produces, or the animals which the shepherd takes care of. It does not justify their ownership of the land or their right over it. (I 486-7)
Sadr then proceeds to a further degree of abstraction in the theory. Alongside the principle of labour as a creator of rights, continuous possession is presented as the condition for the perpetuation of rights. Sadr can derive, from the study of the general principles of distribution before production, the two basic tenets of this theory:
(1) The labourer who exerts his efforts on raw natural resources owns the fruit of his labour. This is the general opportunity to profit from the wealth one creates.
(2) The perpetuation of exploitation (mumarasat al-intifat) in any natural resource grants the individual exploitant a right which precludes others from taking the resources away from him, so long as he keeps taking advantage from this particular resource.
‘ On the first principle are based the rules which organise the rights in the operation of revival and hunting. On the second principle are based the rules of possessing removable goods, which nature has offered man the opportunity to exploit’ (I 497-8).
Distribution and justice
A: Distribution after production
The general theory of Iqtisaduna on distribution before production has introduced the concept of need and the central notion of labour, as well as the general theory of land distribution and other factors of production. Sadr then moves, after some general remarks on issues rapidly discussed in earlier parts,
to the theory of production after distribution.
Both the structure and the method of Iqtisaduna appear very clearly in this section, which is introduced by a caveat, in which Sadr shows his awareness that’the two studies [distribution before and after production] interact itadakhala al-bahthan)’ because of the difficulty of dividing the phases of the economy into pre-and post-production. The process is particularly intertwined in the Islamic assessment of the central concept of labour.’We had tried in the theory of distribution before production to specify the rights that individuals acquire in raw natural resources viewed as one aspect of their distribution. Since these rights are the result of labour, the analysis was focused on the role of labour in these natural resources. Natural resources developed by labour comes in this perspective under pre-production wealth’ (I 517 n.). Thus the inevitability of some confusion, since’the sources of production’, i.e.’ land, raw materials, and the tools necessary for production’ which were analysed in the section on the process of distribution before production, must be addressed again from another angle. This time the analysis aims at explaining legal rules of distribution after production, which are concerned with’productive wealth, which is the goods made by labour exercised on nature, and results from a combination between these material sources of production’. This is’secondary [or derivative] wealth’ (7387-8).
This section represents perhaps the clearest model of Sadr’s method in the book. In following the argument in some detail, the reader can watch the modus operandi of Iqtisaduna in one of its best applications.
To find the rationale of the economic system, Sadr posits a number of rules from the superstructure which he reads in the classical texts of fiqh. He then offers the alternative theory from the two competitive schools, Capitalism and Socialism. Then, by way of deduction from the classical texts, and by way of contrast with Socialism and Capitalism, he draws the specific attitude of Islam towards these economic problems.
The superstructure -What the fuqaha have to say
Example 1. Al-Muhaqqiq al-Hilli (d. 676/1277) wrote that agency (wikala) is not acceptable for gathering wood (ihtitab) and other similar works in nature. If a person hires an agent for gathering wood, the contract is void, and the principal will not own the wood collected by the agent.
Example 2. In’Allama Hilli’s Tadhkara, as well as in the works of some Shafi’i scholars, agency is void in matters such as hunting, gathering wood, reviving the dead land, appropriating water, and similar activities.
Examples 3, 4. This interdiction is also forbidden in other works, such as in’Allama Hilli’s Qawa’ed, and Jawad al-’Amili’s Miftah al-Karama.
Example 5. Some editions of Tusi mention his rejection of agency in land revival, and wood and grass gathering (ihtishash). Abu Hanifa (d. 150/767), according to Ibn Qudama (d. 620/1223), considers that the contract of partnership (sharika) is not permitted in such activities like ihtishash, because partnership cannot be without agency (wikala), and agency in such matters is invalid. Whoever collects the grass or the wood becomes their owner.
Example 6.’Allama Hilli associates agency and tenancy (ijara) in these interdictions.’In the same way the principal will not become the owner of what the agent gets in gathering wood, grass, or reviving dead land, so the lessor will not own [the result of] the tenant’s labour in nature’ (I 518-19).
Asfahani (d. 1137/1725) and Hasan ibn ash-Shahid ath-Thani (d. 966/1559) wrote in a similar vein.
Example 7.’Allama Hilli in the Qawa’ed writes that, notwithstanding the intent to share the product of gathering or hunting with a partner, the whole result of the activity is the property of the sole gatherer or hunter. Intent is immaterial.
Example 8. Tusi and the two Hillis have ruled that the intent of sharing with others is immaterial as to the ownership of’natural wealth, tharwa tabiliyya’.
Example 9. In the Qawa’ed, and in other fiqh works, it is stated that in case a person gives another person a net for fishing, the value of providing the net is independent from the product of the activity (fishing). The value is based on assessing the act of providing the net as a hire contract.
Example 10. Even when hunting (or fishing) with an illegally held tool, the result of the activity is not affected according to’Allama Hilli. The tool will be returned and a price given on the basis of hire, independent of the resulting fish or game. This is confirmed by an-Najafi (d. 1266/1850), who further comments that the price of hire is due even when there is no result to the activity. The Sunnifaqih Sarakhsi (d. c. 485/1092) develops the same idea in his Mabsut.’ The tool’, Sadr writes,’ does not have a share (hissa) in the commodity produced’ (I 520).
Example 11. In Tusi’s Mabsut, this last rule is likened to the water peddler (saqqd1) in partnership. Even if there is an intent to share the result of selling the water, none of the revenue goes to the partner.
Example 12. Al-Muhaqqiq al-Hilli gives a similar example based on a partnership in which the saqqa? is given a draught animal for the job by a partner. The animal will simply be considered on hire, and the value of hire will be independent of the saqqa"s revenue. The partnership is void. So have also ruled Ibn Qudama and Shafi’i (I 518-21).
These examples constitute the’superstructure’. Sadr must now interpret them to derive his economic infrastructure. But first, a contrasting example is offered through the exposition of the capitalist theory.
Capitalism, Sadr writes, divides’ productive wealth’, or what is equivalent to it,’monetary wealth’, into categories which are equal amongst each another from the capitalist school’s perspective. These four categories, interest, salaries, rent, and profit, separate or combined, form the root of productive wealth in capitalist production.
Islam rejects this classification, since Islamic economic theory does not assign an equal value to these sources.’The general theory of distribution before production considers that what is produced from raw nature is the property of the sole producer, the labourer... Only the productive individual is the original owner of the wealth produced from raw nature’ (I 524). If the labourer happens to use somebody else’s’tools of production’ (means of production, wascfel al-intaj), he remains none the less the sole owner of the goods produced. A mere compensation (prize, mukafa’a) is granted to the person whose productive tools are used.
The rules derived from the fuqaha’s works can be summarised in three principles:
(1) The principal cannot reap the fruit of his agent’s work in matters of raw natural wealth. This is clear from the first eight examples.
(2) The contract of hire is similar to the contract of agency mentioned in the preceding principle. This can be read in example 6.
(3)’ The productive individual, who uses in his exploitation of nature a tool or a machine which is owned by another person... becomes indebted to the owner of the tool with a compensation for the service rendered in the process of production. The produce is in its totality the labourer’s property. This is clear in examples 9, 10 and 12’ (I 527).
These principles have significant consequences in the industrial world.’ It is possible for capital [in the capitalist perspective] to hire labourers for cutting wood from the forest or extracting oils from wells, and to pay them salaries In the Islamic theory of distribution, there is no room for this kind of production. Labour is a direct condition for the appropriation of natural wealth, and gives the sole labourer the right to own the wood he cuts or the mineral he extracts’ (I 526).
A similar process of comparison is repeated to draw further economic rules from the legal’superstructure’, and from a contrast between Islam and a competing school of thought, this time Marxism.
After a series of examples drawn again from classical fiqh, Sadr tries to show that unlike Marxism, which does not distinguish between the exchange value of a commodity and its property, Islam stresses the difference between the two concepts, and emphasises instead the stage in which the intervention of the worker takes place in the process of production:
The material on which the productive person applies his labour, if not owned before [the labour element intervenes], will grant the totality of the resulting wealth to that person. All other contributory productive forces are considered at the service of that person and receive a compensation from him, but they are not considered partners in the result... But if the material was previously owned by an individual, then whatever development happens to it, it remains his property (I 535)
This, for Sadr, derives from the fiqh principle of the’ permanence of ownership (thabat al-milkiyya)’ of which the best example is the wool given to a worker by its owner. Even if the worker transforms the wool into another commodity (like a garment), the commodity will remain the property of the original owner. The worker will only receive a compensation for his labour, which is independent from the garment (I 530-40).
The rest of the chapter, and the remarks which follow it (I 541-81), try to refine the principles and solve outstanding problems which derive from the distinction introduced by Islamic rules between the compensation (ajr, salary), which is fixed, and partnership in profit or product (musharaka firribh aw an-natef), which is the hallmark of contracts such as muzara’a and musaqat, (sharecropping agreements), mudaraba and ju’ala (I 556).
The latter profit, which is essentially variable, attaches particularly, as in mudaraba, to commercial ventures. Compensation, in contrast, is relevant to a situation where a tool of production is offered by one of the parties.’The tool of production and commercial capital are opposed as to the way to legitimise profit’ (I 558-9). Underlying the distinction is, again, the concept of labour:’ It is not possible for an individual to guarantee for himself a profit without work. Work is the essential justification for profit in the [Islamic] theory’ (I 562). This is where capital will be invested only in a venture where profit is not assured, since, according to Sadr, it cannot qualify like the tools of production as accumulated labour.
B: Production and the role of the state
The remainder of Iqtisaduna consists of two shorter (and less interesting) chapters on the’theory of production’ (I 582-627), and on’the role of the state in the economy’ (I 628-58). These chapters, which emphasise the role of the state in the economic system as a main power for productive wealth as well as for distribution purposes, conclude Sadr’s analysis on a very general level.
The chapter on production starts with the earlier mentioned differentiation between doctrine and science, and suggests that the maximisation of production, which is the only underlying common goal of all three systems, belongs to the realm of science. Islam as a madhhab can benefit from the other theories for a better planning of the economy of the Islamic state.
The distinctiveness of the Islamic doctrine appears in the subjective side of the theory of production, which is developed in the legal framework accompanying the productive process. These rules, such as the importance of reviving and exploiting the land for its regime ownership (I 590), the prohibition of riba (7 591-2), the encouragement of commerce as productive activity and not as intermediation (I 621-2), these and the other legal rules which form part of the legal superstructure all show how Islam tries to protect the productive process from activities purely centred on’the tyranny (zulm) of man in the distribution of wealth’. This tyranny, and the betrayal of divine prodigality (kufran an-ni’ma),’ constitute the two causes for the problem which the poor has faced since the earliest times of history’ (I 609).
This economic problem warrants the last remarks of the book on the responsibility of the state in the economy. The Islamic state, in Sadr’s theory, is an actor of the utmost importance, whose intervention is behind the’great projects’ in the economy. This is because these projects need the accumulation of capital otherwise impracticable because of the legal rules which prevent the hoarding of wealth (I 600). The state will intervene in the economy to guarantee the right course of social production, to distribute with equity and efficiency raw natural material, and to control extracting industries (sina’at istikhrajiyya) and the production of raw material (7 626-7).
The state, in effect, has a large role to play in the Islamic economy. This is consonant with the gist of Iqtisaduna, and consists of the application of those rules which have been specified in the Sunna and in the classical texts. This is the ambit of mantaqat al-faragh, which was introduced early in Iqtisaduna as the area of discretion for the government’s activity. In this area, the imam as wali al-amr will take economic measures needed to fulfil’ social security, daman ijtima’i’ (I 629-37) and’social balance, tawazun ijtima’i’ (7 638-51).
Social security is further defined as consisting of public solidarity (takaful lamm), which operates’ within the limits of extreme need’ (7 631), and of’ the right of the group, jama’a, in the sources of wealth’ (7 632). Social balance provides the state measures such as the ones described earlier, along with the right to impose taxes and create public sectors (7 643). This interventionism is meant to guarantee the levelling of social disparities. In the general context of Iqtisaduna, this will ensure that social differences will not be so acute as to allow, in the words of the Qur’an, wealth to remain exclusively in the hands of the rich (7 636).
The area of discretion, which closes Iqtisaduna, is meant to be flexible enough to allow Islam to cater for social needs and solve the economic problem in all times and ages.
Iqtisaduna, Perspectives
Iqtisaduna in the literature
The preceding pages were an attempt to describe and reconstitute the essence of Sadr’s main contribution and his claim to fame, the theory of an Islamic economic system presented in Iqtisaduna. Iqtisaduna is a relatively early work, which Sadr prepared when he was in his thirties.
Iqtisaduna is a product of the times. As in the case of Falsafatuna, it was written when Communism was on the rise in Iraq and in many other countries of the area, Syria and Iran in particular. Most importantly, as mentioned already, the very audience of the’ulama was under threat. This period, which generally corresponds to’Abd al-Karim Qasem’s rule (1958-63), necessitated answers to the troubling questions of economics and philosophy, for which Communism seemed to offer, to the great dismay of religious circles, alluring and comprehensive answers.
The earliest edition of Iqtisaduna which can be traced bears the date 1961,
and suggests that the book was the result of work undertaken in the late 1950s. This corresponds to the time of the communist challenge, and the structure of the book betrays this importance. Hence the division of the work into three parts, in which, as mentioned earlier, the first is a lengthy and significant critique of socialist economic theories (I 15-212). The second part is, in comparison extremely short, as it briefly deals away with’Capitalism’ (I 213-54). It is interesting in this regard to note that the critique of Capitalism in this section is much less rewarding than later passages of the book when’capitalist’ concepts such as risk and individual property are contrasted with their Islamic equivalents. On the whole, the anti-Marxist and anti-capitalist sections, which formed most of the first volume in the original edition, are burdened with the terminology of the early 1960s, when the works of Stalin and Politzer were still important in Marxist theory in a country like Iraq.
Their significance remains mostly as a testimony of the atmosphere prevailing in the Middle East of the communist intellectual ascendancy in the 1950s and early 1960s. The third part, the largest and most interesting, constitutes the most innovative effort in Iqtisaduna. It is the part of the book which has survived best the demise of communist ideology in the area.
To date, Iqtisaduna stands as the most interesting and the most comprehensive work written on Islamic economics. In the Muslim world, it has been used in Arab and Iranian circles, and translations in several languages of part or whole of the book have appeared, including two Persian translations, one of which was read in the Iranian hauzas, (circles of scholars) before the Revolution.
There have also been Turkish, German and English translations. The German translation of the’ Islamic’ part of the work by Andreas Rieck is the best and most scholarly effort to date on Iqtisaduna.
The English translation of the largest part of Iqtisaduna, published in Tehran in 1982, is poor and unreliable.
Another serialised translation of some chapters of the book has been more recently published in the Shi’i journal al-Serat.
In the Arab world, a summary of Iqtisaduna was published in Beirut in four short books.
The summary adds little to the work, but the effort is indicative of the stature held by Iqtisaduna in Islamic circles. This is not limited to the Shi’is, and Iqtisaduna was used and continues to be discussed in several countries of the Arab world, including universities in the Maghreb.
The then Dean of Kullyat Dar al-’Ulum at the University of Cairo,’Ali an-Najdi Nasef, wrote in 1976 the preface to Sadr’s al-Fatawa al-Wadiha,
and Sadr’s execution in 1980 was featured in major Cairene newspapers. It is difficult to assess the exact incidence of Sadr’s thought in Arab and Muslim circles, but its use in Arab universities was common even before the Iranian Revolution, and the repeated references to it in any Persian and Arab work on Islamic economics suggest that its reputation is well established in the field. Considering the significant pool of classical fiqh sources used in Iqtisaduna, the interest in the book is not surprising.
Yet Iqtisaduna has also been subject to scathing criticism by Sunni scholars, who have put forward the Shi’i limitations of Sadr’s theory.
The most detailed such criticism appears in a book published at Dar as-Sahwa in Cairo in 1987.
It consists of two separate critical essays on Iqtisaduna, contributed by’ authors who did not meet once before the writing of this introduction... The book addresses a single subject, which concerns one of the most famous Shi’i books on Islamic economics, Muhammad Baqer as-Sadr’s Iqtisaduna.’
For the publisher, bringing together these two critics was needed’to strip bare a widely reputed book, which had been received in good faith, despite its deadly methodological mistakes, and obfuscating legal consequences’.
Both essays are constructed on the same pattern: an overall presentation of the content of Iqtisaduna, a discussion of its methodological shortcomings, and a brief presentation of some of the book’s substantive mistakes.
While Harak’s essay is a serious work, Kamal tends to lose focus by easy generalisations and the use of texts taken out from later writings by Muhammad Baqer as-Sadr, including incorrect statements such as the alleged thesis that Sadr had argued for the legitimacy of riba
and impossible quotations.
Harak in contrast presents a systematic and well-structured analysis. His main methodological unease relates to Sadr’s permissive use of the concept of ijtihad,
’his methodological error in the discovery of the madhhab’,
and the invention of categories which have no basis in the Sunni tradition, and which he ascribes to the’Shi’i influence’ on Iqtisaduna’s author.
On the matter of ijtihad, Sadr’s remarks on the pitfalls which threaten the objectivity of a contemporary reader of the tradition are criticised for the relativisation of the legal rules drawn by the fuqaha. For Harak, casting such doubts on’the Prophet’s legislation’ is tantamount to heresy. First it is anathema to separate, as Sadr does, between Muhammad’s role as a Prophet and the rules he has laid down in response to particular circumstances. It is also incorrect to pretend that the jurists’ writings offer such a leeway for interpretation as is suggested in Iqtisaduna.
The whole principle of the discovery of Islamic economics, on which Iqtisaduna rests, is also faulted. This is because Sadr ends up selecting in the superstructure of civil law those elements which can be of use to his own personal discovery of the infrastructure constituted by the economic madhhab. In the course of this intellectual activity are lost all the legal rules which do not fit the structure of the derived Sadrian madhhab. Furthermore, Sadr has to discard and contradict well-established rules which do not conform with his general system. A case in point, Harak submits, is Sadr’s establishment, following the Shi’i faqih Tusi, of a general principle of the imam’s ownership of reclaimed land, and of its consequent imposition by kharaj. In that, he is in clear contradiction with the hadith of the Prophet on full property for whom revives a dead land. His way of dealing with it, for Harak, is simply to consider that the Prophet’s saying dealt with a temporary and exceptional situation, and that the general principle was still one of state ownership.
Thirdly, Sadr’s methodology drives him to invent categories which have no place in Sunni fiqh. Most conspicuous is the concept of discretionary area,’ as if what is meant that the discovery of a discretionary area is an insistence on the validity of Islam for all times and places This is a good intention... But wishes are not sufficient in such matters, and the road to hell may well be paved with good intentions.’
The discretionary area is a figment of Sadr’s imagination, adds Harak. It allows him to give leeway to’his’ ruler where Sunni understanding is adamantly opposed to such interpretative powers;’the validity of Islam in all times and places is the sign of a legal wealth, not of legal void [faragh, as in mantaqat al-faragh]. We can never accept that there be void in legislation. New matters, which have no text to be based on, have been ordered by God to be examined by a process of ijtihad, in the light of the general objectives of the shari’a. We have kept a huge legal tradition, thanks to the painstaking efforts of jurists who did not leave a single tool for legal ijtihad unused.’
This for Sunnis is the role of analogy, of deduction, of care for the general interest, and other such methods developed by fiqh. Under no circumstance can such an operation of juristic logic contradict the established rule:’ The correctness (legitimacy, mashntiyya) of rules comes from the support it finds in the texts, it never comes from contradicting them.’
In Harak’s essay, Iqtisaduna’ mistakes in substantive law which derive from the flaws in the method are many. Most important is the one related to land property and to the role of labour in Islamic economics. In Sunni fiqh, Harak argues, the principle is the sanctity and absoluteness of private property. Sadr’s theories are directly inspired from Socialist thinking adduced with a sectarianism which derives from the importance of the Twelve Imams in Shi’i law and theology. Similarly, the principle in labour law is the absolute freedom of an owner to have labourers work for him on the basis of a salary.’Mere work cannot be considered as the sole justification to ownership.’
For both Harak and Kamal, all the mistakes of Iqtisaduna are rooted in Shi’i influence on Sadr. But can Sadr’s Shi’ism really explain his emergence as a leading scholar of Islamic economics, as both Harak and Kamal clearly recognise?
It was suggested that part of the originality of constitutional theory in the circles of Najaf was rooted in the relative independence of the Shi’i ‘ulama from the State apparatus. The Islamic state advocated by Sadr and applied in the Iranian constitution of 1979 had an essentially Shi’i character. In contrast, the explanation for the originality of Sadr’s economic works cannot easily be found in an intellectual ferment traceable to Shi’ism as opposed to Sunnism.
Sadr’s economic contribution was unique in the Shi’i world itself, where Muslim oppositional leadership was also eager to discover an Islamic alternative to a system which was perceived to be unjust. The closest work to Iqtisaduna in Iran was Mahmud Taleqani’s Islam va Malekiyyat,
which came after the publication of Sadr’s book, and which in any case cannot compare with Iqtisaduna either in depth or comprehensiveness. Nor can one find a clue in nationality. In the Iraqi holy city of Karbala, another young’alim wrote a book on’Islamic economics’ in the early sixties. That scholar, the scion of an important family of’ulama, was extremely active in the organisation of the Islamic opposition in Iraq and later in Lebanon. But his work on economics, al-Iqtisad, published in the early 1960s, is superficial and uninteresting.
Conversely, amongst the theoreticians of’Islamic economics’ who were also prominent for the’ Islamic’ form of their opposition to the state in the Sunni world, Sayyid Qutb and’Allal al-Fasi have dominated the Egyptian and Moroccan scenes. This does not mean that the Shi’i cultural milieu was more favourable to the emergence of an Islamic system of economics. Both Fasi and Qutb dabbled with’economies’, but their best contributions in the field fall far short, in terms of quality, of Sadr’s works.
A more solid historical case can be built on the argument that there was a significant chasm between Sunni and Shi’i attitudes on the question of land ownership (notably for the kharaj category), and that Sadr did not take it into account. Indeed, classical Hanafi authors like Quduri (d. 428/1036) draw an important distinction between kharaj and’ushr land. As for kharaj, the element of private property, in contrast with Sadr’s prohibition, is dominant:
‘The main land in Iraq is kharaj [land] and belongs to its inhabitants (ahl) who can sell it and dispose of it at will.’
This may be so, but the immense number of authors, of historical periods and variations, and the use of words like kharaj,’ushr and tasq to convey a wide range of legal regimes (which in any case tend to be obscure in the classical text), suggests rather that several economic systems can and will be derived by the modern Islamic seekers of’correct economies’. The wide spectrum covered is characteristic of the possibilities offered by the legal tradition. It is much less a function of sectarian closed models (which would favour in Sunnism private ownership and the state cum Imam in Shi’ism) than a characteristic to be found within both Shi’i and/or Sunni fiqh. As the debate in Islamic Iran between the defenders of absolute private property and those who favoured state nationalisation and redistribution of land clearly shows, the non-sectarian dimension of the divide is profound. In Iran, the tenants and opponents of absolute private property are all Shi’is.
Iqtisaduna is actually remarkable for the absence of any conspicuous Shi’i sectarianism in its analysis and sources. If, as appeared in Part I, the constitutional works of Sadr and their application in the institutions of the Iranian Revolution have been strongly impressed by a strictly Shi’i tradition, reading Iqtisaduna’ in contrast, suggests that in matters of economics the scholarly ground for research reached beyond the Shi’i tradition. Sadr has freely drawn on Shi’i and Sunni scholars, and it is difficult to find any reference which would specifically betray sectarian leanings, even if on the whole references to Shi’i jurists prevail in Iqtisaduna. But Shafi’i (the eponym of the Shafi’i school), Malik (the eponym of the Maliki school), Sarakhsi (Hanafi school), Ibn Hazm (Zahiri school), as well as many of their disciples and followers, all are authoritative sources for the discovery exercise of Muhammad Baqer as-Sadr. In Iqtisaduna, Sadr uses abundantly Shi’i as well as Sunni scholars from all schools of law. Even the school most antagonistic to Ja’farism, the Hanbali school (in its Wahhabi-Saudi version), is drawn upon in the persons of Ahmad Ibn Hanbal and Ibn Qudama. In fact, the absence of sectarianism in Iqtisaduna explains the interest in Sadr beyond the strict confines of the Shi’i world. There are traces of Iqtisaduna’’s theories in recent writings in far apart areas in the Arab world, and in as diverse quarters as the Egyptian Supreme Constitutional Court and Tunisian and Algerian Islamic militants.
But it may be that the atmosphere of increased sectarianism which is characteristic of the second half of the 1980s would inevitably throw suspicion on the best meaning works in the literature.
Theory and practice: Iqtisaduna, land reform and state intervention in Iran
Did Sadr succeed in rendering his discovery of Islamic economics applicable to modern times ?
Unlike the case of the constitutional precepts, where an almost direct genealogy can be traced with compact texts such as Sadr’s Note and the Iranian Constitution of 1979, Iqtisaduna did not generate a Persian’compendium of Islamic economies’. Scholars have described parallels between Sadr’s forays in the field and the debate on land reform in Iran, as well as parallels between Sadr and the’ economic’ works of the first Iranian President, Abul-Hasan Bani Sadr.
In a fundamental debate where many voices were heard, Sadr’s legacy was important more as a general focus for the tenants of’ social justice in the countryside’ than as a recipe charting a decisive way ahead.
With all its lengthy analyses of land property and the economic system, Iqtisaduna did not offer mechanisms which could be applied to an economy in search of precise guidelines. But the richness of the work and its scholarly thoroughness suggest that some paradigms have been established in the field along lines first elaborated in Iqtisaduna. The virtues of the book may reside more in these paradigms than in the application of the ideas to the economy of the’ Islamic’ state.
But the failure of a strict’applicability’ of Iqtisaduna is also due to methodological problems inherent to Sadr’s original motivations on the one hand, and, on the other hand, to the flaws of the internal methodology which he chose to develop in the book.
As in Falsafatuna, the obsession with the critique of Marxism has unduly constrained the author’s recourse to the tradition. Sadr, it must be emphasised, had been working on imperfect translations of books belonging to the stalest Marxist tradition. In the case of more serious original works, such as Marx’s Capital, an authoritative translation from the original German into Arabic has yet to be undertaken, and Sadr’s reading of classics of Marxism was hindered by the quality of the material at hand. He in fact did extremely well within these constraints, and Sadr’s critique is unique in its thoroughness and the care in avoiding the oversimplification typical of the’ulama’s reading of socialist literature. As for the use of’ capitalist’ material on the economy, Sadr’s concern was too peripheral for a genuine attention to the works of modern economists, or even to classical writers whom he occasionally mentions, such as Ricardo and Adam Smith.
In the properly’Islamic’ part of the book, Sadr was operating from a tabula rasa. The systematic use of xhefiqh compendia is therefore remarkable, but there was an inherent contradiction which surfaces in the book. When Sadr mentions the’subjective’ strength of Islam, which allowed a system to build up and develop, and to overcome various threats throughout history, the argument he used was essentially a-historical. It allows him to undermine the Marxist claim that ideologies, including religions, are dependent on the forms and relations of economic production. Hence the emphasis of Iqtisaduna on the concept of distribution, through which Sadr could proceed freely with the advocacy of a self-contained and different system. At the same time, the a-historical dimension also affects the fiqh works, which are described and used as immutable documents. Sadr avoids the stultification of these documents by a careful process of selection. As in the cases on hunting, wood gathering, or fishing, these texts are used to investigate the higher’economic rule’ which underlies them. Sadr could not however avoid the burden entailed in the historicity of these sources, and the dilemma is reflected in those passages where he admits that the history of Islam is replete with examples of poverty and exploitation, even though the juristic rules are interpreted in Iqtisaduna in exactly the opposite direction.
The constant resurfacing of the historical dimension in the law also leads Sadr to plainly impossible suggestions. This is the case in particular in the early presentation of the rules on land property and Sadr’s conclusion on the necessary connection between the way a particular land has come into the Muslim empire and its legal regime. The works of thefuqaha indicate indeed that land property was originally related to its conquest, particularly in terms of taxation and succession rights.
But the historical link has been somewhere severed. It does not appear realistic to decide in the late twentieth century on the legal regime of a land according to the way its inhabitants have embraced or accommodated early Islam.
More interesting and of easier application is’ the general theory of land ownership’. Sadr’s analysis of the concept of labour, particularly in relation to revival and constant exploitation, is reminiscent of the familiar’agrarian question’ and its emphasis on the socialistic principle advocating the devolution of land to the peasants. This indeed constitutes the important dilemma of post-revolutionary Iran.
For Sadr, revival, with its close connection with the concept of labour, is at the root of the general theory of land ownership. With the waning of property rights deriving from’work by conquest’, legitimation of the right to the fruit of land had to be based on the principle of revival and constant exploitation. In the arguments of the advocates of land reform in postrevolutionary Iran, the concept of labour for the exploitation of land and the ownership of its fruit has also been introduced under the more general heading of’social justice’. Alongside revival, Sadr also developed a number of legal concepts which put the ruler of the Islamic state, individually as well as institutionally, at the heart of a legal order which is centralised and dirigiste. Whenever possible, Sadr seems to advocate the necessary intervention of the state as the owner of’strategic’ resources and as the provider of the lines of economic development and redistribution of wealth.
This is mainly true of his theory of land ownership, which was (and remains) a sensitive element in the discussions over the nature and function of the’Islamic state’.
The formal debate in the Islamic Republic of Iran over the separation of institutional powers has been discussed within the context of constitutional law. Here, substantive law relating to land property and land reform is presented.
There have been in practice several attempts by the advocates of land reform in Iran to enforce redistribution of agrarian property. They have been systematically undermined by the Council of Guardians. In the first decade of the Revolution, no less than seven such bills, drawn first by the Revolutionary Council (1979-81), then by Parliament, have been passed, then immediately frozen as anti-constitutional. Only in 1986 was a limited bill on’ temporary cultivation agricultural land’ passed, which survived the opposition of the Council of Guardians. But even in this case, several constitutional hurdles were brought up in the Majlis by the opponents of the bill.
Thus, since the early days of the Revolution, several laws on land reform have been repeatedly struck down by the Council of Guardians, which has acted as a conservative watchdog for the opponents of reform. The debate is actually more complicated than a mere opposition between the branches of Government (the decisions of the Council of Guardians do not indicate the majority from the eventual dissenters, but it can be assumed that in a council of twelve jurists, some dissent must have taken place).
Within the Majlis itself, a pro-private property faction has emerged against the majority of reformers. The hesitations on the level of institutions is also not surprising.
The non-committal position of Ayat Allah Khumaini himself, who had been sitting on the fence, was instrumental in the use of his utterances, as well as of his silence, by both groups.
A brief survey of the land reform bills will show the extent of the controversy. As soon as the new regime came to power, the concern for’social justice’ which had provided a key ideological tenet in the revolutionary process, and the combination of this theme with land property in the works of the Shi’i jurists like Sadr (d. April 1980), Taliqani (d. September 1979) and Beheshti (d. June 1981), meant that agrarian reform was high on the agenda. In the summer of 1979, even before the legislative institutions came into being, a committee formed by Ayat Allans Muntazeri, Beheshti and Mishkini produced a law which divided lands into three categories: anfal land, which was the property of the Islamic state; confiscated lands from pro-Shah landlords; and large estates owned privately. This last category was the most important and most controversial. It came to be known, following its place in the bill, as the question of band-e jim (clause c).
Band-ejim divided private holdings into uncultivated (ba’ir, Persian bayer) and cultivated (da’ir, Persian dayer) lands. Ba’ir lands were subject to immediate confiscation for distribution among peasants. Da’ir lands were to be redistributed if the owner held a surface of land three times larger or more than was needed for him and his family according to local custom. This was clearly a radical legislative step, which precipitated the opposition of highranking ‘ulama. Despite his insistence on’social justice’ and the advent of a new, fairer, Islamic era, Khumaini himself suspended the bill on 3 November 1980.
Another attempt, this time by the newly elected Majlis, to introduce land reform was initiated in 1981, and resulted in a more comprehensive piece of legislation on the agrarian question. After two years of discussion, the bill on’ revival and transfer of agricultural land’ was approved by Parliament on 28 December 1982. This bill was more detailed than the earlier proposals of the Revolutionary Council which were suspended for being presumably too vague. Its eventual defeat after the Council of Guardians’ determined veto marked a significant setback for land reform advocates.
The bill of 28 December 1982 divided land into five categories, of which the two critical ones were the da’ir and ba’ir lands.
Ba’ir, uncultivated, land (now under band dal, clause d) would have to be cultivated within one year, otherwise the state could reassign it to landless peasants. If the uncultivated land had been completely abandoned by its owners, it automatically became state property. But ba’ir land would have in any case to be exploited in a limit not exceeding three times the local custom (seh baraber’urf-e mahall). The surplus would be bought’at a just price after deduction of legal debts incurred’ and reassigned by the state (Art. 5).
Article 6 of the bill dealt with da’ir (cultivated) land, also introducing radical measures. The owner who is engaged directly in the cultivation could retain up to three times the amount of land which is customary. If he is not engaged directly, he can keep up to twice the local use amount of land. The surplus amount would be bought by the state and redistributed,’after deduction of debts’. There were several exceptions, including fully mechanised farms (Art. 6.8), land which came under sharecropping agreement between the owner and the tiller (muzara’a, Art. 6.1), as well as rented land (ijara, Art. 6.1). Also included in the exceptions was land held in trust (mawqufe, Art. 6.3).
The rejection of the Council of Guardians came on 18 January 1983.
The Council invalidated the bill on two grounds: it contradicted the principles of Islamic law (mavazin-e shar’i) and it was unconstitutional.
Article 2 of the bill, which laid down the headings for the law Canavin), was considered too general. Article 2 mentions the principles of economic independence, the suppression of poverty, and the checking of rural migration, embodied in Articles 3,43 and 44 of the Constitution; the Council of Guardians deemed these references in the bill under consideration to be’wider than the necessity required in their application’. For the Council of Guardians, the references in the law to the confiscation by the state of ba’ir and da’ir land were not rooted in any compelling necessity, and the purchase and transfer of these lands by’persons who were not entitled legally to intervene’ were contrary to Islamic law. The Council of Guardians pointed out also that the dispositions of the law were’outside the limited secondary sphere (heyte-ye ahkam-e thanawiyye va mahdude)’ mentioned in Imam Khumaini’s decree (farman).
The dispositions on da’ir and ba’ir land were singled out by the Council of Guardians as opposed to the shari’a:
Article 5 and 6, relating to clauses dal and ha’ (ba’ir and dai’r land) in conjunction with Article 10 [which develops the mechanisms of state redistribution according to a strict list of priorities with state and barren land at the top and ba’ir and da’ir land to be redistributed afterwards] do not constitute [do not rest on] compelling necessity (darura fi’lyya) and the remainder of the articles of the law associated with these two categories are not covered by the decree of Imam Khumaini. They are contrary to Islamic law (mavazin-e shar’i).
The Council of Guardians also found fault with the general principle of necessity under which Parliament had presumably introduced agrarian legislation. This’necessity must be based’, said the Council, on the’country’s state (awdai wa ahwal-e maujud dar sath-e keshvar)’. In other words, the objective situation giving rise to’land reassignment’ legislation must be exceptional enough to warrant state intervention. In this context, the necessity considered by Parliament was deemed unfounded: for the Council of Guardians, Parliament could not’ put a limitation on the power of the land owners from a legal point of view’.
Article 44 of the Iranian Constitution had mentioned land generally under the category of private property (the two other categories being state and cooperative property). So the bill was also deemed contrary to several dispositions of the Constitution. The indictment of the Council of Guardians was general and blunt:’ The totality of the bill on revival and transfer of agricultural land, insofar as it renders agriculture ultimately statal (dawlati), is contrary to Article 44 of the Constitution.’
Legislative work on land reform had to be taken up again, and consultations among the deputies resulted in a bill passed on 19 May 1985.
In the new law, many of the previous dispositions had remained, but the critical da’ir land category was significantly altered.
In the bill of 19 May 1985, land was again divided into five categories. The three first categories were dead (mavvat) land, milli (common) land (which comprise pastures, forests, and reclaimed land), and state (dawlati) land, which was defined as land whose ownership’has legitimately been transferred, or will legitimately come, to the state’ or one of its organs.
The controversial ba’ir and da’ir lands appeared as band-e dal and ha’ (Art. 3).
Article 4 allowed the state to use the lands in the three first categories as it saw fit. For the ba’ir category (private land’left uncultivated for more than five years without legitimate excuse’), the seven-person committee of the Ministry of Agriculture in charge of applying the law could re-assign the land, within one year, to other caretakers. These would preferentially be peasants who live on the land.
Da’ir land, denned as’prosperous land under exploitation’, was now untouched:’ Da’ir land, which at the time of approval of this law [by the Majlis] is at the disposal of the owner, will remain so’(Art. 7). There was however one exception, which dealt with land which had been’ temporarily occupied’ at the beginning of the Revolution (kesht-e movaqqat). Article 6 specified that such land would remain in the property of those peasants who had occupied it’ provided they had continued its exploitation, were making their livelihood from that land, and were completely or almost completely landless themselves’. The state would compensate the owners at’a just price after deduction of legal fees’, and the new owners would receive a title to property from the committee.
The Council of Guardians struck down the law on 2 June 1985.
Article 6 was dismissed as’outside the subject. It was added to the bill but has no relation to the question of land reform.’ If the dispositions it contains were to be discussed, the Council of Guardians added, they ought to be returned to Parliament for full review and an eventual passing of separate legislation.
Several other dispositions were also deemed contrary to the Constitution and to Islamic law by the Council of Guardians. Article 8 of the law,’which forced an owner to sell or rent [his land], is contrary to the mavazin shar’iyya and also to Article 47 of the Constitution’. The Council of Guardians was particularly insistent on the wrong use of the concept of necessity by Parliament in devising, yet again, the dispositions in the reform ruling the da’ir and ba’ir lands.
The opinion of the Council of Guardians of 2 June 1985 was largely devoted to the’two items’ of da’ir and ba’ir land, and this time, the Council made the sanctity of private property absolutely clear:’The land reform bill which was ratified by Parliament, and which was rejected by the Council of Guardians because of da’ir and ba’ir lands, was so [rejected] because the bill mentioned these two items without regard to compelling necessity, and was consequently outside the range of the Imam’s message.
The Council of Guardians reiterated in this passage, in more straightforward language, the principal reason why the first land reform bill of December 1982 had been rejected: the dispositions on ba’ir and da’ir land had been taken without regard to a compelling necessity which would justify the confiscation entailed in the statute.
It is not enough, continued the Council of Guardians, to include the word necessity in the new draft:
On this basis, and with consideration to what the Council of Guardians had sanctioned... it was necessary to correct the points objected to by the Council of Guardians... It is not possible, in those bills rejected by the Council of Guardians because they contradicted Islamic law, [for Parliament] to ratify them under the heading of necessity when the law itself admits that there is no necessity.
Ignoring the principles of the shari’a, continued the Council of Guardians, is clearly opposed to the Imam’s views.
Surely the Imam did not mean in his repeated sermons and his righteous guidance which insist on the protection of divine rules and legal (shar’i) dispositions, when he said:’Nobody should think that helping the dispossessed (mahrumin) and providing them with services is free of illegality, when it is achieved through illegal means. For this would be a deviation and a betrayal of Islam and the Islamic Republic, as well as of the mahrumin themselves. It paves the way to hell even to the mahrumin, because of what they would have received in illegal (haram) money or in the usurpation of money belonging to others’;... [surely the Imam did not mean] that the bills and articles which have been rejected by the Council of Guardians on the basis of their opposition to Islamic law can be returned by the Parliament under the heading of necessity.
In the 1985 bill, as was just seen, the Council of Guardians had scolded Parliament for including the’outside the subject’ question of’temporarily occupied land’ in a comprehensive land reform system. Soon after its repeated defeat, Parliament set out to devise a more limited law which would tackle only this type of land.
The’ temporarily cultivated’ category consisted of land which had been occupied by peasants in the immediate aftermath of the Revolution: some 700,000 to 750,000 hectares of land, representing five per cent of the total arable land in the country, and concerning 120,000 families of peasants and 5-6,000 landowners. The main dispositions of Article 6 of the 1985 bill were adopted again. With the cut-off date for the occupation of lands set at 20 March 1981 (except in Kurdistan where the date was extended two years because of more persistent troubles than in the rest of the countryside), the land would be tranferred to the peasants occupying it after a’ just price’ was paid to the original owners.
It was noted in Chapter 3 that the power of the Council of Guardians was enormous because of the automatic legislative veto it held according to Article 94 of the Iranian Constitution. The repeated undermining of’revolutionary’ legislation, particularly in matters of land reform, had frustrated the operations of Parliament so much that the only recourse left was, again, in the supreme faqih, Ayat Allah Khumaini. Parliament used a declaration of Khumaini, allegedly uttered in 1983, to the effect that if a law was passed in the Majlis with a two-thirds majority, it would not require to be scrutinised by the Council of Guardians.
In a troubled session in late October 1986, this declaration of Khumaini was used to frustrate the threat of the Council of Guardians. Under hasty procedural arrangements, the then Speaker Hashemi Rafsanjani declared that a majority of two-thirds had been reached, and the bill was passed into law.
None the less, the’temporary cultivation land’ final status had to wait until its approval by the Majma’-e Tashkhis-e Maslahat, one constitutional revision and five years later.
The attempt to protect the peasants who had occupied land in the aftermath of the Revolution from its ownership reverting to the former landlords was the last battle of the advocates of land reform before the Constitutional Revision. The fact that they seem to have won it should not obscure their defeat in the overall war. Not only did the percentage of the land concerned constitute a minimal part of the agricultural land available, but its denomination and the legal categorisation under which it fell rendered it the odd and uncertain exception to firmly established principles on the absoluteness of the right of property.
This absoluteness was now clearly embedded in the’ jurisprudence’ (in its French meaning) of the Council of Guardians. The Council of Guardians had succeeded in frittering away the attempts of the advocates of land reform to provide any legal argument in favour of landless peasantry. Land reform proponents were cornered into a vague and weak advocacy of the exception to the rule, on the basis of necessity. In the arguments of the defenders of the 1986 bill, it was out of necessity to the protection of the Revolution, or of landless peasant families’ allegiance to the Islamic Republic, or to the impracticality of evacuating the peasants on the’temporarily cultivated land’, that ownership had to remain with these families.
Necessity was indeed the only rationale left, and it included very little argument in terms of law. The advocacy of necessity meant a contrario that the principle was indeed that legitimately acquired property could not be touched, and that only total urgency could conceivably offer an exception to the rule.
The theme of necessity had by 1985 become the last refuge of Parliament to try organising land reform. Its use meant also that Parliament was fighting a rearguard battle. Lest the whole field of the law would be ultimately undermined, the concept of necessity could hardly be used every time the dispositions of Islamic law were in contradiction with the legislation of Parliament.
The Council of Guardians was relentless. It reserved for itself the right to define each of the terms used by the legislator.’Legitimately acquired property’ was extended to mean practically any property (short, perhaps, of that of the Shah and his entourage). Necessity was restricted to mean that it could not blunt Islamic law or the Constitution as the Council of Guardians intended to interpret them. The only way for Parliament to save its last and limited bill on land reform was to avoid the Council of Guardians altogether.
Even when, in its decision of June 1985, the Council of Guardians asked Parliament to prepare a separate bill dealing only with temporarily cultivated land, the warning it gave was clear. As it declared Article 6 on temporarily cultivated land’out of the subject’, it took the occasion to opine that Article 6 was, in any case,’contrary to Article 47 of the Constitution’.
Article 47 simply states that’private [personal, shakhsi] property which is legitimately acquired must be respected. The regulation of private property will be decided by law.’ In the Council of Guardians’ view, restriction could not apply to this statement, which must be read narrowly. The category of temporarily cultivated land, which under the law deprived the owners of legitimately acquired property, was tantamount to illegal occupation. There was little doubt left on the fate of the Bill if it were presented again to the Council of Guardians, and the Majlis sought to avoid the Council of Guardians by reverting to the new’qualified majority’ device, the constitutionality of which was doubtful.
The pro-reform advocates in Parliament had been slowly cornered into the evasive concept of necessity. From the early reforms of 1979-81, which were put to an end by Khumaini, through to 1988, when the Council of Guardians used its power as super-legislator to undermine all Parliamentary bills on land reform, a pattern was slowly established to vindicate the rules of Islamic law as safeguards to private property, however extensive (and unfair) they might seem to be. The opponents of land reform, particularly in the Council of Guardians, slowly asserted the sanctity of private property in Islamic law.
Even the advocates of land reform in Parliament had fallen in the legislative grid in which the Council of Guardians ensnared them. When in 1986 they tried to salvage the de facto occupation of’ temporary cultivation’ land, the only argument left was the weak and unconvincing concept of necessity.
The powerful interests of land owners in Iran, who had by the time Khumaini suspended the first bill prepared by the Revolutionary Council in 1981 regrouped and organised, made certain that dirigiste and distributionist theories such as could be found in Iqtisaduna would not be applied by the Council of Guardians, which upheld effectively the torch of the sanctity of private property. The rejection of the land reform bill by the Council of Guardians in 1983 and 1985 meant the death of Parliament’s attempts to draw comprehensive land legislation. It was clear that the Council of Guardians would not let through any law entailing the confiscation of btfir and da’ir land. Until the constitutional developments of 1988, and the emergence of the Majma’-e Tashkhis-e Maslahat, Parliament was completely paralysed in its attempt to introduce’social justice’ in the countryside.
Sadr’s theory had been defeated, although many of the concepts which he discussed in Iqtisaduna offered the language of the background polemic and the general paradigms which will continue to impress on the debate.
The constitutional crisis of 1988 revived the defeated philosophy, and the demise of the Council of Guardians put into question again the relevance of the philosophy of Sadr and those who, like him, understood the state of Islamic law in an interventionist and’socialistic’ manner.
In the year following the birth of the Majma’, efforts were established to reactivate the bills which had’ fallen in abeyance’ or had not survived the axe of the Council of Guardians. Under the leadership of Rafsanjani, the Majma’ was able, in a few concise words, to legitimate the’temporarily cultivated land’ bill, by giving its stamp of approval to the Executive Order (a’innameh) which consecrated the rights of the new owners. The Majma’ simply established that the law stood as it was, and that the controversial decisionmaking process of the Executive Order would be tempered by an eventual intervention of a representative of the Leader.
A wider effort was also directed to reviving the ba’ir and dd’ir reform. The cue given by the Council of Guardians in its 1985 rejection of the comprehensive land bill was taken up. Instead of dealing with land in the countryside as one comprehensive category, several pieces of legislation addressed more limited categories, as in the case of temporarily cultivated land. While Parliament seems to have shied away from directly tackling da’ir land (which in any case had been left untouched by the Bills of 1985), legislation was passed on ba’ir land, and was in fact approved soon after the establishment of the Majma’ in 1988. The decision of the Majma’ reporting the text of the law consists of one article and a note (tazakkur) including four clauses (tabsereh). The final text defines ba’ir land as’land which was left without cultivation and without a valid reason for more than five years’. The radical provision entitling the government (through the representatives of the Agriculture Ministry’directly, or through the seven-men agricultural Commission’) to’sell that land at a just price after deduction of debts’ was watered down significantly by a combination of procedural review measures opened to the original owners, and by the possibility mentioned by the law to sell these properties or convert them into’rented’ or muzara’a land within one year of the approval of the law by the Majma’.
So there was finally a legal framework for land distribution. But even at that stage, it is clear that the debate in Iran was not over, as the da’ir land remained outside of the purview of the reform. In the case of abandoned arable land, the reform was toned down significantly by the various aforementioned procedural and substantive restrictions. Furthermore, it took two years for the government to prepare the Executive Order requested for implementing approved law, even though the law itself had stipulated that the Executive Order would have to be prepared within two months of approval.
By the end of 1369 of the Persian calendar (early 1991), some mechanisms for a timid land reform had finally been established.
Against the Iranian developments in agrarian reform, Iqtisaduna stands as a work favouring a significant interventionist role by the state.
The area of discretion of the ruler can be considered large enough to accommodate the advocacy of land reform in Sadr’s theory. On the basis of the thrust of Sadr’s arguments, advocates of land reform in Iran were able to find comfort in a possible distribution of land by the state to landless and needy peasants in the name of social balance.
Sadr’s work deals also with’ primary rules’ which cannot be changed by government, and the strength of Iqtisaduna lay precisely in a general theory of land distribution which should not be simply altered by the ability of the ruler or the government to legislate in the discretionary area. In this case, the key thesis, which was also at the heart of the thrust of the legislation elaborated by the Iranian Parliament, introduced the property of land as a function of revival and constant exploitation. Revival (Arabic ihya’ Persian vagozari), and continuous labour, were central both to Iqtisaduna and to Iranian legislation on ba’ir land. As for da’ir land (man-made prosperous land in Iqtisaduna), its legal regime depended for Sadr on whether it was historically part of the law of conquest, or whether it was land of persuasion or agreement. In the latter case, it could remain private property. As law of conquest, it would in contrast become’public property’. It was then not subject to the rules of inheritance, could not be leased out another time by the labourer who was working on it, and control would revert to the community as its original owner at the end of the lease.
Sadr’s interventionist rules of Iqtisaduna became more acute at the beginning of the Iranian Revolution. In 1979, he wrote a little pamphlet in the series of’Islam as a guide to life’, where the’radical’ positions which surface at times in Iqtisaduna were bolstered. In his Detailed Guidelines to the Economy of the Islamic Society, the nuances in Iqtisaduna deriving from historical conquest of the land or sharecropping contracts like muzara’a had given way to a more firmly established role of the state than the uncertain discretionary area of the ruler.’Rule one’ of the Guidelines stated:’All the sources of natural wealth are part of the public sector. Individuals have a right of usufruct (intifa’) on one single basis, which is the labour represented in thy a9 meaning solely direct work.’
In other words, contracts like muzara’a or lease (ijara), which were tolerated in Iqtisaduna, were now looked at suspiciously:
There is one single situation in which the operation of capitalist production has not been completely abolished in the shari’a according to some schools of law; this is the contract of muzara’a, in which the owner of the land agrees with the farmer who has the seeds on the basis that [the owner] offers the land and shares the fruit of labour with the farmer. If this case has not been abolished completely by law, as some fuqaha see it, there are discretionary elements Qanasir mutaharrika) in the Islamic economy which call for the abolition of this type of contract.
The picture in Iran as it emerges ten years after the Revolution does not lend itself to this radical dimension of Sadr’s 1979 writings. Muzara’a, ijara, waqf land, all these legal devices remain as an important panoply of defences against state expropriation. But the spirit of Iqtisaduna, which is summarised in a short study published by Sadr in 1973, remains an important element for the understanding of the social philosophy behind the advocacy of Iranian reformism:
When Islam said to the people, forsake injustice and establish equity, it offered concurrently the explication of injustice and equity, and put forth the equitable way for distribution, exchange, and production, as opposed to the unjust way. For instance, Islam mentioned that appropriation of land by force, without reviving it (ihya’), was injustice; that land property, on the basis of labour and ihya’ is equity ...
It is true that Islam urges the rich to help their poor brothers and neighbours, but it was not satisified with the mere urging of the rich and their moral education. It imposed on the State to secure the needy, and to grant them a respectable life.
The first decade of the Revolution undermined Parliamentary attempts to introduce any change to the situation of land ownership, except for the temporarily cultivated category from which it would have been difficult to expel the peasants in effective occupation. The developments in the theory introduced by Sadr and like-minded scholars were thwarted by the Council of Guardians, and private property in its most absolute manifestation turned out to be the departing point of the Council of Guardians’ opinions.
Yet the influence of the logic at work in Iqtisaduna has been revived by Khumaini’s edict of 6 January 1988 and the constitutional revision of the following year. The Amended Constitutional of 1989 has brought to life again, through the Majma’, the economic philosophy of Sadr. But the consolidation of this trend will depend on a combined and domestic atmosphere which, in Iran, does not seem in the 1990s so inclined towards the radical fervour which was the hallmark of many of the jurist-leaders of earlier revolutionary days.
The difficulty of steering a clear course in the economic affairs of Iran has proved insuperable. This is true also in the constitutional field, but there are even less signposts in the Islamic tradition than in a theory of government which has always ranked high in the interests of Muslim scholars. For scholars who claim that Islam can provide the answer to the economic problems in any society, a special effort is required in a field for which the tradition is not equipped. But there now exists a rich Islamic law jurisprudence in Iran, which has taken the form of a separation of powers dispute between the Council of Guardians and Parliament, then between the Council of Guardians and the Majma’. It is hoped that the full publication of the discussions within these bodies will further enrich the Renaissance of the shari’a, which started with Iqtisaduna and continues through the Majma’-e Tashkhis-e Maslahat.
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Author: CHIBLI MALLAT
