Theory of Sharecropping from an Islamic Economic Perspective: A Study of al-Muzāraʻa & al-Musāqāt

Theory of Sharecropping from an Islamic Economic Perspective: A Study of al-Muzāraʻa & al-Musāqāt

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  190 Kyoto Bulletin of Islamic Area Studies 4-1&2 (March 2011) Theory of “Sharecropping” from an Islamic Economic Perspective: A Study of al-Muzāraʻa  & al-Musāqāt  Muhammad Hakimi Bin Mohd Shafiai 1. Introduction  Nowadays, societies all over the world depend on a healthy economy to ensure their  prosperity. In order to fulfil the needs of life with limited resources, every person in the society should be involved in a variety of economic activities in such industries as manufacturing, tourism, agriculture, and banking. In an Islamic society, all economic activities have to comply with the ethical values and Islamic law derived from the unequivocal teachings of al-Qurʼān and Ḥadīth. Most of the discussions among scholars on the subject of Islamic economics at present are focused on Islamic banking and finance. Even though the agricultural sector is one of the most important economic activities in human life, relatively few Islamic economists have made studies on it. Originally, land used for agriculture was the main constituent in this area of study and it can be reviewed from the contracts which have been used between landlords and tenants. Basically, there are three main forms of contract in agriculture; fixed wage, fixed rent and sharecropping.Alternatively, in Islamic jurisprudence, there are also terms which are related to the concept of sharecropping, namely al-muzāraʻa  and al-musāqāt  . Basically, these principles constitute a contract between the landlord and the tenant stipulating that the final output will  be shared among both parties as a reward for the managerial labour supplied by the tenant and the land capital supplied by the landlord. Nevertheless, these concepts are only a part of the discussion in the broader context of sharecropping in economic terms. Furthermore, some arguments have arisen among leading Islamic jurists as to their validity. Hence, these  principles can be considered as important concepts in Islamic jurisprudence (  fiqh ) and as having been reviewed by many Islamic jurists in classical literature. The theory of al-muzāraʻa  has prompted more debates among Islamic legal schools than the principle of al-musāqāt  . This is illustrated by Imām Abū Ḥanīfa’s  (699–767) acknowledgment of the principle of al-ijāra  (leasing) in land contracts but his invalidation of the principles of al-muzāraʻa  and al-musāqāt  . Imām Mālik (712–796) and Imām Shāfiʻī (767  –820) only acknowledged the principle of al-muzāraʻa  if it was a derivative from a contract of al-musāqāt  . Abū Yūsuf (731–798) and al-Shaybānī (750–805), disciples of Imām Abū Hanīfa, have proposed that both of these contracts are permitted by Sharīʻa  and admissible as a form   イスラーム世界研究 第4巻1–2号(2011年3月)190–209頁 Kyoto Bulletin of Islamic Area Studies, 4-1&2 (March 2011), pp.190–209 * Department of South and West Asian Area Studies Graduate School of Asian and African Area Studies (ASAFAS) Kyoto University.  191 Theory of “Sharecropping” from an Islamic Economic Perspective of partnership between landlord and farmer. This interpretation has also been followed by Imām Aḥmad ibn Ḥanbal (780–855), Ibn Taymīya (1262–1328), Ibn Ḥazm (994–1064), and also by contemporary scholars such as Muḥammad Bāqir al-Ṣadr (1935–1980) and Seyyed Mahmood Talegani (1911–1979).Therefore, this paper attempts to examine the contracts of al-muzāraʻa  and al-musāqāt   as the Islamic forms of sharecropping. It will highlight the historical development of these contracts from the perspective of Islamic jurists in Islamic legal schools ( madhhab s = madhāhib ) and also their contemporary significance from the viewpoint of implementing them at an institutional level. This paper is organised into five sections. The following section explains the principle of al-muzāraʻa , followed by the theory of al-musāqāt  , the views of Islamic jurists towards the principles of al-muzāraʻa  and al-musāqāt  , and finally, the conclusion. 2.   Theory of al-Muzāraʻa  Formulated in Classical Islamic Jurisprudence2.1  Al-Muzāraʻa  in the Primary Sources: The Qur’ān, the first primary source of law for all Muslims, does not mention sharecropping as such. In addition, the Sunnah , as the second of the primary sources of Islamic law, does not give a clear ruling on whether or not sharecropping is permissible for Muslims. The Prophet only said to the Jews of Khaybar on the day of conquest of Khaybar; “I keep you on the land on which God has kept you, on the condition that the fruit will be equally shared between you and us” [Muslim 2000: no. 3939; Abū Dāwūd 1988: no. 3408]. To deal with the problem, the jurists of the different Islamic legal schools ( madhhab s) have imposed conditions and restrictions upon sharecropping contracts in order to make the contracts valid.  Al-muzāraʻa  is derived from the word “  zaraʻa ”, viz. crop [Majmaʻ al-Lugha al-ʻArabīya 1985: 406].  Majalla al-Aḥkām al-ʻAdlīya  in section 1431 defined al-muzāraʻa  as a contract made between two people, one a landowner and the other a farmer, whereby the landlord gives his land to the farmer to cultivate against a specified joint share of the crops [Tyser et al. 2001: 237]. Technically, it also means a contract for the cultivation of land in return for part of the produce in accordance with conditions stipulated by law, when a farmer agrees with the landowner on a specific percentage to be obtained in exchange for work on his land. Farming expenses are shared by the worker and the landowner, proportionally. For this reason, it is defined as a joint venture in farming, whereby one or more individuals enter into a contract to invest in an agricultural enterprise or operation. Output or  produce from the enterprise is shared between the partners in accordance with the agreement, stipulated in the contract. The terms and conditions of a contract of joint venture should be so designed as to avoid any possibility of dispute during the conduct of business or at the time of  192 Kyoto Bulletin of Islamic Area Studies 4-1&2 (March 2011) sharing the profits or bearing the loss. 2.2 Capital/Input Sharing: Generally, in the view of the majority of jurists, al-muzāraʻa  is a legally acceptable legal contract for financing operations [Dusūqī n.d.: 372; Sharbīnī n.d. a: 323; Ibn Qudāma n.d.: 581; Kāsānī 1968: 3808]. It can take several forms. For instance, a contract based on this arrangement can specify that the land and other physical factors of production for the enterprise could come from one party while labor could be provided by the other party. Alternatively, only the land can srcinate from one party while other factors, including labor, could come from the other party in contract. Yet another alternative of al-muzāraʻa  is that land and labor could come from one of the contracting parties, while all the other factors of production may be provided by all the other parties in the contract [Kāsānī 1968: 3816–3819]. 2.3 Management: The valid al-muzāraʻa  is a terminable contract ( ʻaqd ghayr lāzim ) for the tenant, but is  binding upon the owner of the land. If the tenant says to the landlord after the conclusion of the contract that he does not want to continue, he has the right to do so [Kāsānī 1968: 3822]. The work that is essential for the al-muzāraʻa  like cultivation and sowing is for the tenant to perform, while work that is not essential to it like transportation and harvesting is a joint liability [Ibn Qudāma: 589]. If the land does not produce anything, then there is no return for either, and neither is the tenant entitled to wages for his work nor is the landlord entitled to rent for his land, irrespective of who provided the seed [Kāsānī 1968: 3822]. The landowner must pass the land to the farmer and permit him to work without any interference. The landowner should not limit the farmer’s movement in terms of cultivation of land, as the farmer is the decision maker concerning the utilization of land under al-muzāraʻa  contract. Furthermore, the landlord is also responsible for providing the land and assets and  bears any devaluation resulting from the farming. He is not liable for anything other than this in regard to the farmer if there is no yield because this is a partnership in growth and not a wage contract [ʻAjlūnī 2010: 274–275].In addition, the farmer’s possession regarding al-muzāraʻa  is that of a trustee’s  possession of the crop, he is not liable for the damage or loss of the crop, except in the case of an excess of authority, default or a violation of the al-muzāraʻa  conditions. If there is no crop  produced by the land, the farmer will not be liable to compensate the landlord. This is because the contract is a partnership and a hiring or leasing arrangement. 2.4 Output Sharing: The output share of each partner should be a percentage of the output whether it is half, one-  193 Theory of “Sharecropping” from an Islamic Economic Perspective third or whatever, and not a specific amount. This percentage must be agreed on clearly in the  beginning of the contract [Kāsānī 1968: 3816]. According to al-Ṣadr‘s economic theory work (activity) is the basis of the rights, thus it can be understood that the landowner is entitled to a share of income due to his ownership, while the farmer is entitled to a share for his work, as stipulated in agreed transaction earlier [Sadr 1983: 185]. 2.5 Legal Rules: To summarize, there are several legal rules mentioned in classical literature from the past Islamic scholars to ensure the validity of the contract [Dusūqī n.d.: 374–375; Ibn Qudāma n.d.: 589; Kāsānī 1968: 3816–3819; Ibn ‘Ābidīn 1966: 283; Wahba al-Zuhaylī 1989: 626–627]: 1. It is a condition in al-muzāraʻa  that the land must be available and the owner must move out of the land so that the farmer can work without any obstacle and it is a condition that the crop to be cultivated must be specified.2. The land should be cultivable. It should be clearly delineated. 3. It is a condition to specify the kind of seeds to be sown. The seeds may be provided  by the owner of the farm according to the prevailing norm.4. It should be clearly stated what is to be sown, that is, the seed, unless the landlord tells him to sow whatever type he likes. 5. The product sown should be something useful and amenable to cultivation. 6. It is a condition that the al-muzāraʻa  period must be known and sufficient for the cultivation of the land and harvesting the crop.7. It is a condition in al-muzāraʻa  that the two parties share the produce, and the share of each partner is a known pro rata ratio in the total. It is invalid to stipulate a specific amount of the produce to either partner, because that may hinder the realisation of  partnership.8. The transaction shall be invalid if the share of either partner is something other than the produce, because al-muzāraʻa  is not an absolute lease; it can be considered as a kind of land lease in exchange for the produce.9. The produce is divided according to the ratios the two parties stipulate and agree upon. In the case of crop failure neither shall get anything. The farmer loses the effort and the land owner loses the utility of the land.10. Everything that is necessary for al-muzāraʻa  such as tending the farm shall be borne  by the farmer because it is in the contract. All expenses on the crop shall be borne by the two parties in proportion to their shares in the produce, because that is not part of the al-muzāraʻa  work so as to be the concern of the farmer.  194 Kyoto Bulletin of Islamic Area Studies 4-1&2 (March 2011) 2.6 Termination of Contract: The contract of al-muzāraʻa  comes to an end expressly or impliedly. Express termination is by  faskh  or iqāla  (negotiated rescission). It is implied when the tenant is prevented from working on the land or when the period of al-muzāraʻa  is over [Wahba al-Zuhaylī 1989: 626– 627]. The contract of al-muzāraʻa  is also terminated with the death of the tenant and the rights will pass to the heirs. If the landlord dies, the tenant will continue till the produce is harvested, and the new landlord cannot evict him. 3. Theory of al-Musāqāt   Formulated in Classical Islamic Jurisprudence3.1  Al-Musāqāt   in the Primary Sources: Historically, the debate on al-musāqāt   contract is also based on the history of Khaybar as well as history of al-muzāraʻa  contract. The theory of al-musāqāt   is based on the transaction  between the Prophet (pbuh) and the Khaybar tenants which mainly involved date palms forming the capital. Therefore, some Islamic jurists consider al-musāqāt   as a partnership contract, wherein the capital provider advances his capital to the worker and the profit will be shared as stipulated earlier.The Prophet Muhammad (pbuh) said to the Jews in Khaybar, “I keep you on the land on which God has kept you, on the condition that the fruit will be equally shared between you and us” [Muslim 2000: no. 3939; Abdullah Alwi 1997: 100]. The majority of the  fuqahāʼ   (scholars of Islamic jurisprudence) agree that al-musāqāt   is an agreement between two individuals wherein one provides the orchards or trees owned and the other the labor and enterprise for irrigation services and upkeep [Dusūqī n.d.: 539; Sharbīnī n.d. a: 322; Ibn ‘Ābidīn 1966: 285; Ibn Qudāma n.d.: 554]. The word al-musāqāt   is derived from  saqā , to water, or irrigate the land [Rūḥī al-Ba‘labakkī 1995: 636].  Majalla al-Aḥkām al-ʻAdlīya  defines it as a contract between the owner of some trees and the farmer who treats, services, irrigates and cares for the said trees, and stipulates that the fruit produced is to be shared between them [Tyser et al. 2001: 238]. In other words, the contract of al-musāqāt   means that a person agrees with someone that for a specified time, the fruit-bearing trees owned by him, or those which are under his discretion, will be assigned to that person so that he cares, tends and waters them. In return, that person will have the right to take an agreed quantity of the fruits harvested [Sharbīnī n.d. b: 136; Bosworth et al.1993: 658]. 3.2 Capital/Input Sharing: The forms which were applied in the al-muzāraʻa  contract will be applicable to the al-musāqāt   contract. The farmer must provide all the labor, and the landowner must give the farmer full access to the trees or orchards.
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