A Comparative Study of the Liability for the Profits Derived from Usurped Property ‎in the Islamic Law

The issue of the liability of the usurper in respect of the profits derived from ‎the usurped property has long been a bone of contention among Muslim jurists. Differences of opinion among the Islamic jurists, and the variety and ‎insufficiency of the previous arguments are the reasons for ‎writing this article. On this issue, Abu Hanifa and his early followers believe that the usurper is by no means liable for the profits derived from the usurped property. ‎Malik b. Anas also believes that the usurper shall not be liable in the case of not using. The Shafi'iyya, the Shi'a and the Hanbali, however, believe that the usurper shall be ‎liable whether or not he derives benefit from the property. ‎The inaccuracy of applying usurpation to profits, the opinion that profits are not capable of being owned (property), the tradition of Al-kharaj bial-ziman (profits against ‎liability), and deductive analogy ‎(qiyas) form the basis of the arguments posed by the jurists who believe in the non-liability of the ‎usurper.‎ On the other hand, assessment of profits, profits being customarily considered as capable of being owned (property), the rule of the sanctity of Muslim property, the permission to similar transgression, accuracy of applying usurpation to profits, the conduct of the wise and the ‎liability for the forfeiture resulting therefrom, the rule of “no harm” (la zarar) in addition to ‎authentic traditions and consensus among the jurists are the most important arguments by the jurists who believe in the liability of the usurper for the profits derived from the usurped property provided that profits are capable of being bartered in a rent contract.