القيود الواردة على ملكية العقار في الفقه الاباضي والتشريع الحديث في سلطنة عمان (دراسة مقارنة)
This study aims at outlining the constraints (al-quyud) on realty ownership in the Ibadhi jurisprudence, and the modem Omani legislation, in acknowledgment of the importance of these constraints to the public life, and the judicial authority. The researcher addressed the realty-related constraint...
Saved in:
| Summary: | This study aims at outlining the constraints (al-quyud) on realty ownership in the
Ibadhi jurisprudence, and the modem Omani legislation, in acknowledgment of the
importance of these constraints to the public life, and the judicial authority. The
researcher addressed the realty-related constraints from an Islamic juristic perspective,
with focus on the Ibadhi jurisprudence embraced in the Sultanate of Oman. The study
started with a historical overview of the Ibadhi jurisprudence, highlighting the
relatively short Omani experience with its current modem legal system. The
researcher then discussed ownership and real estate &before offering a compilation of
the juristic texts relevant to the study's topic, with special emphasis on the conceptual
development of constraints in the Sultanate and their implications. The collation
included the lawful means of realty ownership6 including seizure (al-hiyazah);
neighbourhood preemption (right of way) (Al-shufah); Sale-and-Purchase; legacy;
gift; and bequest. It also highlighted the constraints which impinge on the owner's
authority over- and limit his usufruct- of his possessions, from the vantage points of
the Ibadhi jurisprudence and the Omani modem laws. The study was essentially
comparative, as it compared between the constraints stipulated by the old (Ibadhi) and
modem Omani systems, with some Omani court verdicts for elucidation. The
researcher adopted a variety of methods to build his arguments. The inductive method
was used to generate the Islamic juristic views from the perspective of the Ibadhi
jurists, as well as the modern legal texts in Oman. The analytical method was also
adopted in the examination of the various juristic and legal texts, in addition to the
comparative approach which was useful in telling the juristic and legal views apart.
The study found that jurists have largely imposed constraints on real estate ownership,
some of which were for the public interest6 and others for the protection of
neighbours. People are6 for example6 barred from using their properties in a way that
is abusive to the community or the neighbours. The study6 thus& confirms the
benevolent character of the Islamic jurisprudence in its quest for balance between the
social and individual rights. The study also highlighted the full harmony between the
Islamic jurisprudence and the laws derived from it6 which makes the application
Islamic teachings in modem legal systems completely adequate. The study concluded
by a number of recommendations relevant to its findings. |
|---|