Prepared by Dalia al-Hussaini with Majd Musa and Mohammad al-Asad, 2005
Transcription of Arabic lecture provided by Diala Anabtawi
Al-Hathloul examined instances of road encroachments in Arab-Islamic history (figure 1). When tackling the issue of encroachment on the right-of-way, jurists did not always pronounce it a violation. Sahnun, who was a student of Ibn al-Qasim, who in turn was a student of Imam Malik, was consulted regarding the case of a man who had encroached on a road. The man's neighbors did not complain until after 20 years had passed since the encroachment. Sahnun was of the opinion that if the encroachment is proven, the man must return what he had claimed of the road since no man should infringe on tariq al-muslimin. Ibn Kinanah (d. 802) also was of the same opinion, and even suggested that a penalty be imposed on the transgressor. In another instance, the scholar Rabi'a (d. 753) was asked if a man who is building a mosque could expand it to encroach on the road, and he did not allow it. However, other jurists had differing opinions. Imam Malik stated that in such a case the encroachment may be allowed, provided it does not violate certain conditions, as with obstructing tariq al-muslimin. Al-Hathloul pointed out that the differences in opinion between the jurists are important, and indicate that the legal system showed considerable flexibility and diversity. If an encroaching building was constructed along a wide road, they would not necessarily call for its demolition as long as no parties were harmed by the encroachment. An example of this is the jurist Ashhab (d. 819), also from the Maliki school. He was asked if a man would be allowed to increase the width of his house by one or two cubits (4) if what was left of the road was eight cubits. The man's neighbor on the opposite side of the street complained on the grounds that the road formed the fina' (open space) of his house. Ashhab ruled that the infringing construction be demolished. However, Ashhab had allowed another instance where a man had expanded his house by transgressing on a fina' adjacent to his house, since the fina' was wide and spacious and the road remained unobstructed. Al-Hathloul concludes that the legislation was flexible, and if certain criteria were met, scholars generally saw no harm in minor transgressions on the road.
Al-Hathloul continued to expand on the idea of the fina' (figure 2). It has been ascribed to the Caliph and Companion of the Prophet ‘Umar ibn al-Khattab (r. 634 - 644) that he attributed the ownership of the spaces in front of houses to the house owners, an idea adopted by Maliki jurists. The fina' was, therefore, allowed as long as it did not narrow a passageway, obstruct a passerby, or cause harm to Muslims according to the Islamic ruling of 'la darar wa la dirar' or (There should be neither harming nor reciprocating harm) (5). They also allowed building around the fina', and even its incorporation into a building, if the road was wide enough.
The writings of Ibn al-Rami (d. 1334) indicate that building transgressions on public spaces were very common in Tunis. Ibn al-Rami was a builder and also a student of the Maliki judge Ibn 'Abd al-Rafi' (d. 1333). Because of his expertise in both building and legal issues, Ibn 'Abd al-Rafi' asked him on numerous occasions to serve on arbitration committees to resolve disputes relating to building (arbitration committees usually were formed of people known for their experience and knowledge). Based on his recommendations, Ibn 'Abd al-Rafi' ordered on several occasions the demolition of a number of buildings and wooden structures that encroached on public ways.
Ibn al-Rami documented his experiences in his book al-'I'lan bi Ahkam al-Bunyan, which also includes explanations of the opinions of Islamic jurists on relevant subjects. He detailed the cases he dealt with, and explained his judgments in each case. Al-Hathloul pointed out that one should keep in mind that in all the records available for study, the cases recorded are ones in which traditions were put into question. It was only when disputes arose over the content of these traditions that matters were brought to a judge and thus recorded.
Transgressions on roads also were common in Cairo. In 1478, the Mamluk Prince Yashbuk undertook the widening of roads and lanes in the city, including the busy al-Mu'izz Street. Consequently, a Shafi'i judge in the city was asked to rule regarding the removal of encroachments on roads, which included buildings, wooden structures, and constructed benches.
Al-Hathloul went on to explain that Medina has excellent court records starting from 1555, which are amongst the best to survive in the Arab world today. Beginning in 1591, the records are highly organized, and arranged by year. They are divided into individual volumes, are neatly handwritten, and are easy to read once one becomes accustomed to their style of writing.
Al-Hathloul explained that he reviewed, in 1977, Medina court records from 1555 up to 1882, at 50-year intervals. In his study, al-Hathloul came across around 45 disputes relating to right-of-way issues. Al-Hathloul cited the case of a person in Medina who, in 1570, asked the court to appoint someone to measure the width of the street in front of his house before he rebuilt his house to prove that he had not encroached on the road. Al-Hathloul pointed out that this case is very significant since it indicates that there were constant disputes regarding the right-of-way among inhabitants, and that such encroachments occurred frequently.
Al-Hathloul took Medina's land subdivision plan, and attempted to read these plans as physical manifestations of textual cases. In one case, in 1852 (during the Ottoman period), a group of neighbors complained to the court that a neighbor had blocked their lane by extending part of his house across the lane to reach the building on the opposite side. In this case, the man had bought an old house that had collapsed and blocked the lane. When he attempted to rebuild it, he claimed the part already blocked by the rubble. The judge, who in this case was from the Hanafi school of Islamic jurisprudence (the Hanafi rite was the official rite of the Ottoman state), ruled in favor of the man who blocked the lane since the Hanafis place a statute of limitations of 15 to 20 years, after which the neighbors lose their right to object against an encroachment. In another case in Medina, in 1821, a house owner extended wooden beams to cover the road, which indicated to his neighbors that he intended to appropriate the public passageway next to his house. His neighbors brought the matter to the judge, who ruled that the new construction was to be demolished. Al-Hathloul emphasized that such cases were very common to jurists in Muslim cities because of the ubiquity of the gradual usurping of street space and closing of lanes (figure 3).