Islamic Environmental Law

THE

FOUNDATIONS

OF

ISLAMIC

ENVIRONMENTAL

LAW

Ismail Yurdakok [email protected]

Famous economist Samuelson (the owner of Nobel Economy prize of 1970) was narrating 39 years ago the sentence of Mark Twain: “Human kind is the only creature that he feels shame, and there are a lot of reasons to feel his shame”. Samuelson adds: “Indeed, human kind is the only creature that he succeeded in making pollute the atmosphere.” Samuelson had noticed the problem as an economist and he had added an ‘one page’ about the environment pollution to the end of his famous book ‘Economics’ (that approximately it has 1,000 pages) in the editions of the late years of 1960s.(1) But the problem became more dangerous after 1970s. The message of the First Earth Day-April 22,1970 -had a certain innocence, imbued with a certain can-do-ism: individual actions would roll back the damage done to the planet... “Well-meaning people frequently focus on personel responsibility, partly because they see it as a way of doing something, without looking at how effective it’s going to be,” says longtime environmentalist Barry Commoner of New York’s Queens College. “..Millions of us might walk to the mailbox rather than drive, but the effect on emissions of the greenhouse-gas carbon dioxide(which comes from burning coal, oil and natural gas) is minuscule compared with the effect of more than 68 million SUVs on American roads. A single decision by the chairman of Royal Dutch/Shell has a greater impact on the health of the planet than all the coffee-ground-composting, organic-cotton-wearing ecofreaks gathering in Washington, DC., for Earth Day festivities..”(2) In last thirty years new parks have been established, but the destruction continues. Half of the world’s tropical forests have beeen destroyed in the last 100 years. As cities grow, so do pollution problems. An estimated 50 million children in developing countries suffer from chronic coughing because of smog. Acid rain problem has moved. Sulfur emissions, a major cause of acid rain 40 % in the United States, but emissions in Asia will triple by 2010. Proponents say solar and wind power are ready for prime time. Still, half the electricity in the USA comes from highly polluting coal. Species protection can work-the once endangered bald eagle is back. But the illegal wildlife trade is annual $ 2bil.-$ 3 bil.business worldwide. The Prophet Muhammad had said: “Who eats onion or garlic he should not enter our mosque.” 14 centuries ago. It is a rule that even with a purpose of performing of prayer, a muslim should not bother (disturb) anyone. We see in Quran this verse: “(O Mankind) Pray your God with humility and in secret” (not with a loud voice) (3) Islam wants no noisy. In another verse: “Be modest in your walking and

subdue your voice. Lo! the harshest of all voices is the voice of the donkey.”(4) The companions of the Prophet Muhammad were in a journey with Prophet.:they were saying (calling the religious formula) Allah Akbar (God is Most Great) with a loud voice when they were passing on the hills. The Prophet said: “(Be keep calm) You are not calling to whom He does not hear or He does not appear.(You pray that He is Allah/God) is with you, He listens all of (your prayers, your callings).” (5)

“The neighbourhood of this noisy airport is a serious disadvantage...”, we hear like these sentences. Is it a right for a government (or private companies) to build noisy airports near the cities ? Contemporary Islamic scholar Muhammad Mubarak was saying 35 years ago: “If a man uses his house or his land that this use gives harm to his neighbour, his neighbour can prevent this use (with a decree from court). For example, a carpenter use a plane in his workshop with its very high noisy or a blacksmith in his smithy (ironworks) or another neighbour digs the soil and will cause the collapse of the wall, in these examples the court can prevent the harmful actions.”(6) Famous Islamic jurist (qadi) Abu- al Ya’la says ( his death is 1131 CE) in his book al-Ahkam-al Sultani: “If the owner of a house builds a bakery and its smoke gives disturbing,or he builds a mill or gives his house to a blacksmith for rent, in these conditions the Islamic court can prohibit these actions. We find some fatwas (opinions on legal matters) in the opinions of great Islamic jurist Ahmad b. Hanbal (his death is 854 CE) that he narrates: a man had built a bath or (toilet) that this was giving harm (probably damp) to his neighbour and Prophet Muhammad prohibited this.(7) Islamic law gives some authority to the judges and administration for the general advantage (useful) of the community. For example “a landowner does not cultivate his/her soil and the community is in need of the agricultural products, Islamic state does not permit this deserted (neglected) land and the state gives this land to a landless peasant for cultivate (temporarily, not the ownership of the land).”(8) Also there is a way to produce a judicial decision in Islamic law ‘zarayee’, ‘sadd-al zarayee’ means: ‘to close the ways’ that these ways go to the crime, and ‘fath-al zarayee’: ‘to open the ways’ that these ways go to goodness.(9) The Islamic court can judges/prevents the crimes against environment with this method that if the judge thinks that this action causes (in the future) a harm (disease, pollution to the community’s health), he can prohibit this.In the events of Union Carbide (in India) and Chernobil (in Ukraine: former USSR (United Soviet Socialist Republics: under the former Russia), all of the humanity saw death of thousands people. The fruits and vegetables had been damaged from the nuclear particules of Chernobil central in all of the countries of Black-Sea. If an Islamic judge sees that this factory causes a calamity like these events, he should close this kind of factories untill the company takes necessary measures. The Prophet when he was going in the market-place he wanted to control and looked at the bottom of the sack of wheat and noticed wet wheats were in the bottom and said: “Who deceives us he/she is not from us”. This principle is also we may take: “Who poisons us he/she is not from us”. A wetness/damp in the sack of wheat gives harm to one or two persons but a dangerous factory to environment gives harm

thousands of people. The Islamic judges also may think that there is a subject in the Islamic law to prevent environment pollution: “the matter of spendthrift”. In the Twelve Tablets(codes) of ancient Roman Empire, this kind of persons are put under restraint and a person (guardian) is appointed by court to administer the properties of spendthrift. Also German Civil law adopts like a this judgement.(10) The majority of the Islamic jurists say: “Islamic law can prohibits the deeds of spendthrift (prodigal) and put him/her under restraint and Islamic judge appoints a man in charge of properties of spendthrift. This man gives enough money for spendthrift’s living conditions. The reason of my mention of this subject, Islamic judge should act rapidly to the companies, factories that they give harm to the environment even appointing a guardian to that factory/company that insists not to take necessary precautions. The Prophet Muhammad had said: “The Archangel Gabriel used to advice the rights of neighbours everytime that I think Gabriel will do neighbours inheritors to each others.” And “You will not a (true) believer untill his/her neighbour is in safe from his/her wickedness (he/she thinks his/her neighbour will not do a wickedness to him/her)”. Former Islamic scholars said: “the rights of neighbourhood are religious and ethical. He does not respect these rights he is a sinner and in the Hereafter he will see the punishment, that sometimes a neighbour has not got any right (any evidence) to go to the court”. But subsequent scholars especially Maliki and Hanafee scholars said: “these rights are not only religious or ethical but also judicial. A thousand years ago the lawsuits between neighbours were about houses and gardens, to build a toilet in the second floor used to give harm to the first floor for the reason of damp that’s why the toilets were in the gardens. But today dangerous for houses come from outside. Air/water pollutions are more dangerous from the damp of a toilet. There is an opinion belongs to Maliki school/sect that a person is not prohibited(prevented) if he/she wants to make rise (to buid higher) his building but this building will prevent the taking of lights of sun and other lights of neighbour. But he/she is prohibited to build a buildind, if this building prevents to take of air (fresh air) of his/her neighbour.(11) The clause of “to take air” is very important about our subject that this judgement had been written in Islamic law books centuries ago. Muslims must wash his hands, faces, arms and legs at least five times every day for their prayers that’s why clean water is necessary especially for them. And when we look at the prayer books: this “water should not be putrid, that muslims must see three characteristics of cleanness its (natural) colour, its (natural) smell, its (natural) taste. Saying: “To progress of the public vehicle system will be useful for decreasing of air pollution”, Umar Chapra, contemporary Islamic economist, he adds: “to prevent pollution of rivers in a country is useful for all of the community(12). We see this subject of “Kary’al- anhar”(to dig and clean the rivers) in all of the classical old Islamic law books. It is written in this subject that “to clean the big rivers is a duty for the government.” And there is an interesting clause that “...if the government has not got enough money for the cleaning of the great rivers, the President invites the people to clean the rivers. The President takes (collect) money from the rich for this purpose and gives this money to the poor that these poor work in the cleaning work. Umar Chapra says: “One of the four conditions of the just development is to protect the environment.(13)

The President of Islamic State can prohibit to put the rubbish and leave elements out of the certain places.(14). Rafeq Yunus Al Masree mentiones the sentences of famous Islamic scholar Mawardee; Mawardee says: “Improvements of cities depend on, plenty more waters, (the city has to) be near the forests, (the city has to) be surrounded green places.(Mawardee lived 955 years ago.) The President of Islamic State can also interfere to the labor conditions that he can want good and healthy conditions from factories and he can divide cities (industrial parts and the quarters for houses).(15). Islamic state interferes with (environmental) codes if the industrialists do not take necessary measures for their workers.(16) Mahmud Abu al-Suud narrates a sentence of the Prophet Muhammad: “If a muslim plants a tree or a crop and a bird or a human kind or an animal eats from this, this act (of muslim) is a charity (for him/her) (Bukhari) (17) The Prophet Muhammad also had said 14 centuries ago that: “Indeed Allah/God is clean and He likes cleanness.(You have to) clean your gardens” (18). That is the manucipality can want from the citizens to clean their gardens. The articles 1212-14-64-65 of the famous Islamic law code of Majalla (it was written in the late years of 19th century) are interested in the cleanness of environment. World followed an International Climate Conference at the end of Sept., 2003 about environment (poisonous gas)that USA, Russia and some other countries reject to sign the Kyoto Protocol of 1997, although Secretary General of UN Annan wanted them to sign this protocol. (Russia signed in 2005) Muslims and non-muslims have to give their applications to the Islamic courts against USA and other these countries. Islamic courts have to follow these lawsuits. Islamic judges should not say: “this subject is an international lawsuit and Islamic courts does not interfere international affairs, this subject is not our courts’s business”. Yes, in classical Islamic law doctrine, we do not find international lawsuits,but in the global age,we have think these problems. Mecca city and its around was/is like a national park that hunting and cut of any tree or grass was/is prohibited in this region 14 centuries ago. A question is may be thought: can Islamic government put a limit (or can it prohibit) to hunt some kinds of (wild) animals ? (like polar bears,lions,tigers...) The Prophet Muhammad had prohibited to slaughter of milch-sheep and said: “Avoid to slaughter a milchsheep (19) To protect the natural beauty is a duty for Islamic State. There is a general law(rule) in Quran that: “Wrong not, and you shall be not wronged (20) (Do not do cruel acts and any one should not do any cruel act to you). The Prophet also prohibited to use the leathers of wild animals (21) And to ride on the saddles that they are covered with the leathers of tigers (22). This prohibition is very important to protect the environment and main rule in environmental law. Islamic law supports the environmental movements like Green Peace etc. Allah taught the cleanness of environment from harmful myrobic objects: “Then Allah/God sent a crow scratching up the ground, to show him (Cain) how to bury his brother’s (Abel) corpse.(Cain) said: “Woe to me! Am I not able to be as this crow and so bury my brother’s corpse?” And he became repentant.”(23)

“The other problem is; 60 % of the shipping of the world is petroleum transportation.80 % of the tankers of the world pour their balasts to the tanks that they were prepared for this work in the rafineries, but 20% of the tankers pour their balasts to the seas and these tankers cause the pollution of the seas. On March 1974, a tanker ran aground in the Strait of Magellan of S. America and 80,000 tons of petroleum poured to the sea. This wreck knocked a heavy-blow to the fishing in Pasific especially in Peru and trillions of micro organismas died.” In these matters; former Islamic jurists had said only: “the high-seas are ‘dar-al harb’. That is the high-seas are not the property of Islamic countries even they had said that: “It is impossiple to disagree (between two parts) in great rivers like Tigris (Dijla) and Euphrates (Furat).” It is obvious and normally that our former jurists could not think the pollution of the rivers/seas after the revolution of industry. But today, the tragedy of tankers influences negative to the biological living creatures to the fish and shellfish especially minute particles on the fish are very harmful for human body. And bilges of well were poured to the seas and oozings leakages of petroleum and liquid fluids and for filling the tankers or filling the ships, in this procedurs the pollution of petroleum is ten tons per ship in a year. Islam does not permit these pollutions, the Prophet Muhammad prohibited to urinate in the calm water, fourteen centuries ago.(24) 1-Samuelson, Economics, p,939 2-Newsweek, April 24, 2000 3-The Chapter of A’raf, verse,55 4-The Chapter of Luqman, v,19 5-Bukhari,Bab-al Dua Ala-l Islam 6-Mubarak Muhammad, Economic System in Islam, p,105 7-Mubarak, p,154,(from Abu Ya’la, p,286) 8-Abu-al Suud Mahmud, Principles of Islamic Economy, p,122 9-Abu Zahra Muhammad, Usul al Fıqh (The Methodology of Islamic Law), p,249 10-Karaman Hayreddin, Mukayeseli Islam Hukuku (Comparative Islamic Law), v,2, p,114 11-Zukhaylee Vahbah, Al Fıqh-al Islami, v, 7, p, 113 12-Chapra Umar, Islam and Economic Development, p,36-149 13-Chapra, p,27 14-Al Masree Rafeq Yunus, The Methodology of Islamic Economy, p,87-8 15-Mubarak, The System of Islamic Economy, p,59 16-Encyclopaedia of Seerah, v, 2, p, 456 17-Abu-al Suud Mahmud, p,127 18-Al Taj, v,3, p,162(from Termizi,Hadith hasan) 19-Muslim, K,Ashrebah 20-The Chapter of Baqara, v, 229 21-Termizi, K.Lebas, hd, 1770 22-Bukhari 23-Quran, the Chapter of Maidah, v, 31 24-Bukhari and Termizi