A Jurisprudential and Legal Feasibility Study of the Ownership Eligibility of a Hostile Non-Muslim in the Context of Istinqaz

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Baqiei Zohreh

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Journal Paper

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Journal: FIQH Year:2025 | Volume:32 | Issue:3 (123) Page(s): 31-61

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Title

A Jurisprudential and Legal Feasibility Study of the Ownership Eligibility of a Hostile Non-Muslim in the Context of Istinqaz

Author(s)

Baqiei Zohreh | Issue Writer Certificate

Keywords

Property recovery (istinqaz)

ownership eligibility

hostile non-Muslim (kafir harbi)

formal sale (bi‘a surri)

impossible sale (bi‘a mustahil)

Abstract

Ownership eligibility refers to the legal capacity and qualification of an individual to acquire property and rights. This eligibility inherently exists in all individuals, however, Islam imposes strict limitations on a hostile non-Muslim (kafir harbi), to the extent that their life and property are considered devoid of sanctity, and transactions with them are deemed prohibited (haram). In Islamic jurisprudence, there are numerous instances where jurists, while still regarding the hostile non-Muslim as lacking ownership eligibility, have issued rulings permitting transactions with them by invoking the term istinqaz—as a means to save Muslim property from loss—thereby converting the original prohibition into permissibility. The central question is whether, in cases where a transaction with a hostile non-Muslim is permitted under the principle of istinqaz, the hostile non-Muslim possesses ownership eligibility in such a transaction. Accordingly, given ownership eligibility and considering the initial prohibition, does the transaction with them occur merely in form (formal sale), or is it considered a genuine transaction? This study, conducted through a library-based, analytical-descriptive approach, found that the majority of jurists consider this type of sale, specific to hostile non-Muslims, to be a formal sale. They argue that due to the disbelief of the hostile non-Muslim and the active state of war (harb), their property is considered fai’ (spoils) of the Muslims, therefore, they lack ownership eligibility, and their sale is formal. Conversely, some jurists argue that hostile non-Muslims possess ownership eligibility. According to this view, the fai’ status of the hostile non-Muslim’s property, even during active war, is secondary to their initial ownership. Hence, transactions with Muslims, owing to the initial ownership and the completeness of the elements of a sale—including genuine intent—are considered real transactions. From the author’s perspective, this latter view is closer to reality, and their sales under the principle of istinqaz are also considered genuine.

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