The Jurisprudential Examination of Usurpation from the Perspective of Hanafi jurist (Elements, Conditions, and Rulings)

Abstract

Abstract:

The sacred Islamic Sharia places great respect on property rights and has established strict measures for their preservation and protection. Since property rights are exposed to violations through unlawful possession—one of which is usurpation—Islam has enacted systematic rules to safeguard wealth. Usurpation is among the enduring challenges of human societies, casting its shadow over social and economic relations and bringing wide-ranging legal and financial consequences. Therefore, this subject is regarded as one of the key concepts in Islamic jurisprudence, requiring analytical study and systematic reconsideration to facilitate the application of its rulings and provide deeper understanding for better utilization. This research, conducted through a descriptive-analytical method, aims to present a coherent study of the rulings on usurpation, its conditions, and its legal consequences, with a focus on the Hanafi school of thought. The findings show that usurpation consists of two essential elements: the material element (istilāʾ – possession) and the moral element (ʿudwān – aggression). Regarding the material element, Abū Ḥanīfa and Abū Yūsuf hold that possession must be accompanied by the removal of the owner’s authority, whereas Muḥammad and Zufar consider mere possession sufficient. The conditions for the realization of usurpation include the property being valuable, measurable, legally respected, and movable. The rulings on usurpation in Hanafi jurisprudence are threefold: it is considered a major sin, restitution of the property is obligatory if it remains, and liability (ḍamān) applies if it is destroyed. Liability for fungible goods is fulfilled by replacing them, while for non-fungible goods it is fulfilled by paying their value. Furthermore, in cases of alteration, increase, or decrease of the usurped property, specific rulings apply: in substantial transformation, ownership passes to the usurper, who remains liable for its value, while in cases of depreciation, the usurper is liable for compensating the difference in value.