The Justification of Intellectual Property Rights in Islamic Law (Published)
I expended my efforts on all this, and gathered in my book general rules from fiqh arranged in an analytical form and a structured presentation. It is something that will please the leaders in the field and be acceptable to the scholars.
Abū Bakr al-Kāsānī
Badā’i‘ al-Sanā’i‘ fi Tartib al-Sharā’i‘[1]
In this article, we shall try to do exactly what the great jurist Abū Bakr al-Kāsāni tried to do in his book. We shall first summarize all those rules. After identifying the rules, we will present the arguments of those who have attempted to declare intellectual property rights to be valid from the Islamic perspective. Although there are many people who have issued such a ruling, we will focus mainly on two sources as detailed arguments and reasoning have been provided in such sources. The first is a 1983 case decided by the Federal Shariat Court of Pakistan.[2] The second is the comprehensive work of Justice Muhammad Taqi al-‘Uthmani in his book referred to in the previous chapters.[3] Due to the significance of these two sources, we have included them in the appendices in full so that the reader does not have any difficulty in understanding their complete arguments. Further, this will help us avoid constant quotations from the sources. After presenting the arguments from these two major sources, we will identify the main arguments and analyse them objectively. The methodology adopted here will, we hope, have the following benefits:
- It will help us identify the stronger arguments that support the validity of intellectual property and the associated rights from the Islamic perspective.
- It will highlight those arguments that are either weak or do not help in affirming such validation and should not be repeated again and again.
- The methodology will help us identify those points that are very important, but have not been covered by the arguments of the scholars or the courts. These are areas that need to be addressed in all future legal reasoning in support of intellectual property rights.
Keywords: Choses in action, Choses in possession, ayn, mal., urf