The mother of all rights; without secure property, the Islamic world can't escape tyranny and stagnation

Reason, April, 1994 by Tom Bethell

On the other hand, where private property is secure, where fencing is inexpensive, as it has been in the West since the invention of barbed wire, and where the policing of property is regarded as an important function of the state, sheep and cows will usually be preferred to goats for the provision of wool, meat, and milk. But in an unpoliced, beggarthy-neighbor commons, these animals will either be very expensive or downright impossible to keep in private possession. So there is healthy demand for goats in the Islamic world.

Contemporary analysts have ignored the great problem of insecure property (and other) rights in the Muslim world for several reasons. In the 20th century, just as the Ottoman Empire came to its end, private property itself fell into disrepute among many Western intellectuals and was, until recently, an unexamined institution. Western countries embraced socialism, enabling--and in many cases directly encouraging--Arab rulers to do the same. This allowed modern tyrants to go on doing what their predecessors had always done--taking the property of their rivals and allowing their kinsmen to take what they could while they had a chance. Arab rulers who engaged in these practices were praised as "progressive" by Western intellectuals who had forgotten, or perhaps had never known, that the security of property was the principal cause of the wealth of the West.

A second problem is that the security of property depends on the rule of law. "Islamic law" is frequently written about as though it were really comparable to Western law, differing only in the details. This is far from the case, however. Islamic law is primarily advisory and theoretical--law that lacks the force of law. Joseph Schacht, a noted scholar of the subject, has acknowledged the point, conceding that Islamic law "is to some extent content with mere theoretical acknowledgment," and "was never supported by an organized power." Court decisions might reflect the consensus of the ulema, or legal scholars, but then again they might not.

"As long as the Sacred Law received formal recognition as a religious ideal, it did not insist on being fully applied in practice," Schacht writes. Islamic law has an "impressive number of legal concepts," but these are derived "not from the concrete realities of legal life, but from abstract thought."

For this reason, theoreticians of Islamic law often tend to be unilluminating about what is happening in the real world. They will reassure you that the Koran has nothing against private property but will remain mute about the great gap between theory and practice. Two-thirds of the way through his Law Reform in the Muslim World (1976), the British scholar Norman Anderson enters the "major caveat" that "all over the world there is a yawning gulf between the law that lawyers learn and expound and the way in which this law is--or is not--applied in real life." The scholar who blows this whistle too loudly, however, is in danger of undermining the significance of his own field.