Differences and Similarities between Sharia’a Law and American Law in Adverse Possession
Trespass to the land is basically a common tort that is committed when an individual enters into the land or property of another without lawful excuse. The party whose property was entered might sue even though no actual harm was done. The court system will then determine the damages that the possessor of the land suffered and order payment as a way of remedy. In this section, the aim will be to highlight the main differences and similarities between the American Law and the Sharia Law in the diverse possession doctrine. It will address the legal theory of vesting the title of any given land.
Differences between American Law and Sharia Law
The doctrine of adverse possession is a general principle that exists in most common legal systems. This doctrine states that a valid title of land is passed on from the true owner of the land without compensation when a person obtains and maintains open and notorious possession of the land for a specific period of time. Land and all property belong to God according to the Quran, and a person cannot strip his brother the land they possess without using the legal means. In sharia law, the ownership of land cannot be lost over time. In sharia law, ownership is a perpetual right which cannot be surrendered or acquired over time, and hence a person can acquire the title of land through sale, gift, will, grazing and Hiayazah, which is a means of acquisition when the land was previously un-owned. Acquisition through Hiayazah is however considered as an invalid means of acquiring title under the American law when the land that has been possessed is privately or publically owned. Sharia allows for an understanding of adverse possession as a barrier to claiming the title of the land that one possesses and hence under Hiayazah possessing land which belonged to the private or public is illegitimate.
In Sharia law, Haiyazah is also considered as proof of ownership and in such a circumstance the actual possessor of land is only considered the rightful owner unless proven otherwise. Such ownership does not provide the possessor with the actual title of the land. It is just a means through which the true owner of the land is prevented from taking legal action against the possessor. In the American Civil Law the possessor of the land is considered as the due owner of the land and holder of the title of the land and may prosecute the trespasser to his land since they hold the title of the land.
Sharia Law as used in the doctrine adverse of possession has its authority emanating from the legislation that originated and revealed by Allah. The rules were communicated to the Muslim community through the Quran and Sunnah by Prophet Muhammad. The Ulama interrelate the Sharia Law, as well as being applied by the Sharia Courts. On the other hand, the American Law has its authority emanating from Common Law Tradition, which is based on the part records of cases which may at times be modified and interpreted by state legislatures and courts of appeal. The principles and value of the American Law basically are applied through the Court of Appeal and also precedents from previous court judgments are applied in determining the law to be used in the current issue.
According Sharia Law, the standard of proof is variable and inconsistent and is normally considered when a judgment is being made by the jury. For this reason, Hiyath can be built for the HAYZ but can vary from one case to other. The trespasser must prove their possession for the land through two witnesses to testify that they have been using the land in an open and naturist way for production if they have any plant in the land. Considering evidence in American Law, the possessor must persuade the bulk of the jury that the defendant is the trespasser beyond rational uncertainty and the evidence must be consistent with the law and should be verifiable through the use of items such as the title, that they are not the rightful owner of the property and any activity that they carried on the land is malicious even where production have been happening over time and this brought damages to the owner. The evidence must be objectively true and its origin verifiable.
In the Sharia Law, the land that one person can possess is only the un-owned land as the land is believed to belong to Allah. Prophet Mohammad observed in Quran that the person who revives a dead land will acquire title for it. In other words the person who utilizes a land that has not been productive for some time will acquire land title and thus this is a proof that they own the land but in American Law un-owned land belong to the government and no own can own it unless it is sold to them for an exchange of title. If a trespasser –hayaz to the land which had been unoccupied and undeveloped but had a true owner is sued in a court of law, upon proofing they have developed land; they may be awarded a payment as a compensation for their ownership by the true owner. The American Law on the other hand only recognizes possession in legal means such as inheritance and the trespasser can be sued for their act of trespassing even if they have developed the land.
Similarities
Sharia views all properties as anything that is useful and has value. These properties can be acquired through contractual agreements or appropriation. In either way, they are private property that the person has acquired the title has the primary responsibility to develop and make it productive. Ownership of land is, therefore, based on the intention of an individual in developing the land so that they are able to get food as the main reason as to why they have acquired the title of the land they possess. The American Law also recognizes that individuals acquire properties through inheritance or contractual agreements with the people were holding the property before them. The two laws are similar in that they acknowledge the rights and benefits of the persons who possess the title to the land and, to a large extent, they ensure that they are entitled to the fruits of their labor. They are, therefore, developed and exist to protect the rights of the possessors from the intrusion of the trespassers. The ultimate goal of both laws is to ensure that the rights and interests of the possessors are protected.
Another important aspect that is considered when Sharia and American Law is being applied is the intention of the trespassers of the property. The law considers why they gained entry into the property. By this, it is established whether such entry was malicious and meant to cause material harm to the owner of the property. This is because intrusion that was involuntary and does not cause any harm to the possessor is generally considered less harmful and thus inconsequential. Both laws must, therefore, establish if any action of the trespassers actually caused any harm to the owner of the property. It is forbidden in the American and Sharia Law for anyone to gain entry into another individual’s property with the intention to destroy or steal the property. In Sharia law, the trespasser - hayaz will have no legal obligation if their actions were meant to cause the development of the land.
Conclusion
In conclusion, Sharia Law is different from The American Law in that Muslims are bound to the laws of Allah which are recorded in Quran. The Americans who are non-Muslims are bound by the Common Law Traditions and hence not accountable to apostasy from Allah. However, in the end both Muslims and non-Muslims are required by either law to live in accordance to the laws that have been enacted by varied forms of state governments such as laws governing possession of land. They are all meant to ensure harmony prevails in the society.
