Jurisprudential-judicial Distinction between Public Ownership and State Ownership with Emphasis on the Article 44 of the Constitution of Iran

One of the most important issues in every system of economy is the question of ownership and the existing approach(es) to it. For it is the structure of ownership that affects on the way in which production, distribution, and consumption is done. It also determines and defines the criteria and standards of each of the three areas mentioned above. ‘Kinds of ownership’ is taken to be one of the most challenging issue in this regard. The fact that the ShiÝi fiqh and hence the judicial system of Iran each has recognized three forms of ownership: private, state and public, and that ownership in Islam and the judicial system of Iran is twofold, that is, there exist two kinds of ownership, are the issues in question. Likewise, the main question in this research seeks to explain why ownership in the Constitution of the Islamic Republic of Iran is taken to be twofold or trifold and to cast light on the jurisprudential approach on which these divisions are made. Drawing upon an analytical approach, the research explores the subject in question, examining the two main ShiÝi viewpoints in fiqh as regards different kinds of ownership and explaining the adopted approach to ownership in the judicial system of Iran. The findings of the research suggest that in ShiÝi jurisprudential (fiqhi) system, the adoption of dual ownership (private and public) is faced with no problem. As far as the Constitution of Iran is concerned, the judicial system of Iran also has taken the same approach. However, this approach is subject to certain ambiguities in relation to laying down some common laws and regulations.