Negotiating with customary and Islamic land law in Afghanistan and Iraq
By Siraj Sait

A Kabul street scene. © UN-HABITAT Kabul office

Securing equitable land rights in the post-conflict societies of Afghanistan and Iraq shows a tangled web of historical, political, socio-economic, religious and legal systems.

Conventional wisdom within development theory and among policy makers has it that traditional, customary or indigenous land tenure systems frustrate modernisation and progress. However, the obduracy of long-standing land holding patterns demands innovative approaches to arrive at durable and locally derived solutions that are deemed authentic.

Dominant external interventionist approaches tend to ignore local traditions - hierarchical, feudal or patriarchal as they may seem - as either failed models, irrelevant or too complicated. Yet, comprehending the dynamics of these customary practices, the real sources of their validity and the scope and nature of the rights they create are crucial to finding remedies.

Despite their differences, Afghanistan and Iraq have been lumped together as objects of the "war against terror". They also present a compelling comparative study of the resilience of customary and Islamic dialectic for securing stability, security and fairer land tenure.

Some parallels are evident in land management policies of Iraq and Afghanistan. The Iraqi 1858 Ottoman Land Code has been through tribal tenure formats of the 1930s, redistribution via the 1958 reforms, collectivisation of agricultural land in the 1970s, and privatisation since the 1980s. Politically, "Arabisation" and "Baathification" in implementing land policies have dispossessed groups in the north and marginalised others. Afghanistan has seen "Pashtunisation" since the 1880s, and in 1968 attempted regularisation of the land tenure system of religious deeds and recorded transfers made by mutual agreement and followed by land ceiling and redistribution in the 1970s. These secular reforms have had marginal benefits for ordinary people. They have been compounded by civil war, UN sanctions and above all economic mismanagement and human rights abuses.

Land disputes are emerging as a source of further conflict in Afghanistan and Iraq which face dire urban housing shortages. Responses cannot await full stability or democracy.

Meanwhile, a vacuum of credible substantive norms and legal dispute resolution mechanisms is leading to a profusion of religious legal opinions or fatwas by self-appointed authorities in the name of customary and Islamic authenticity.

A starting point for religious law is that ultimate sovereignty over land belongs to God. Land has been categorised by Islamic theorists as mulk (individual full ownership), miri (state control and ownership with possible usage rights to individuals), musha or mushtarak (collective or tribal ownership) and wakf (religious trust). Though the institution of wakf is significant in addressing landlessness, the other concepts largely correspond to familiar Western doctrines. In urban centres, there is a predictable expansion of full individual ownership, while state and communal ownership mostly operate effectively, though distinctions between types of land can be blurred and contested.

The construction of a single unified Islamic land law, however, is specious, given the numerous schools of maddahib or jurisprudence. It is contested and varies in application, as in Afghanistan and Iraq. It is also contingent on the interpretation of numerous other doctrines ranging from inheritance, contract, property law, financial law, taxation, rent, usage and nature of obligations. Commentators on Islamic land law generally agree that Islamic land tenure regimes based on muamalat (social transactions, not core religious matters) have exhibited considerable flexibility dependent on particular socio-economic or political developments. The Ottoman land tenure system, and even those centuries earlier, were based on masalih mursalah (State policy based on public interest) and departed further from classical assumptions through innovative judicial interpretations and procedures.

Much of what passes in the name of Islamic land tenure law is in fact customary practice. Customary systems derive their validity from the values of dominant social groups, and often they undermine not just statutory law, but also the true spirit of Islamic law which prohibits exclusion or discrimination of vulnerable groups such as women and minorities.

Islamic law is not autonomous, monolithic, static and immutable, as either the Taleban in Afghanistan or the religious right in Iraq would have us believe. One of the strategies for combating such self-serving rhetoric is to engage in Islamic discourse through the process of ijtihad (individual reasoning) which is a well established Islamic juridical mechanism. Ijtihad is increasingly being used to explore Islamic concepts, weeding out deleterious customary practices, emerging with first principles refreshingly harmonious with international human rights standards.

Housing rights, regrettably, have not received the attention they deserve in the process of ijtihad. UN-HABITAT and other agencies in the past have engaged in dialogue over the scope of Islamic jurisprudence in land tenure laws. Though its role must not be exaggerated, Islamic land law, if appreciated, would serve to support rather than obstruct a more secure land tenure system in Muslim societies.

Siraj Sait is Senior Lecturer in Law and Human Rights at the University of East London, UK.