Water Disputes and The Majelle

 

The Cauvery River dispute between the states of Karnataka and Tamil Nadu in India has been a bane since the 19th century.The dispute arises due to growing demand for water in each state and the prolonged droughts. Despite the court orders there has been protests and violent demonstrations. There is also the rising tensions between India and Pakistan regarding the water in the Indus Basin. Nearer to home there is the dispute on the water prices between Malaysia and Singapore. Climate change is bound to cause water disputes around the world. It is interesting to study the hadith of how the Prophet (pbuh) resolved the water dispute in the Mahzuz Valley , the Prophet (pbuh) decreed, “water over the depth of two ankles cannot be withheld by the owner of the higher [ground] from the owner of the lower lands”. He objected to hoarding of water by saying “He who withholds water in order to deny the use of pasture, God withholds from him His mercy on the Day of Resurrection”.

The Muslim jurist have written extensively on water laws. In fact, books on water laws dedicate whole chapters to the Islamic water laws. Dante Caponera’s Water Laws in Muslim Countries (1972) is a comprehensive book that compiled the Islamic water laws in the Sunni and Shia schools of thought. The Majalla al-Ahkam al-Adliyyah (The Majelle) , which is the digest of legal rules and principles used during the Ottoman empire, based on the Hanafi school of Law, covered water laws extensively from Articles 1234 till 1291 which covered the classification of water, defined ownership of water rights, the right of use of water for irrigation, drinking purposes and the right to sell land with or without water rights. 

"The article 1234 in the Majallah begins with the hadith “Water, grass and fire are free to be used by all. In these three things, mankind are partners.” Articles 1235-1239, classifies the different types of water and defines the ownership rights. Running water that is not appropriated or groundwater are common property and owned by no one. However, Articles 1248-1251 defines the right of ownership due to appropriation of water. Articles 1262-1269 recognized the right of use of water for irrigation and drinking purposes. The sale of irrigation rights is allowed in connection with sale of land. It is also permissible to sell water as subject to water pipes (Article 216). The right of irrigation can be unbundled from the land. An owner of a land can sell his land without the right to take water. The right to take water can remain with the owner or co-owners (Article 955). Other laws in the Majalla include the maintenance of water courses (Article 1326) and the harim, which is a protected buffer zone around water sources (Articles 1281 to 1291)."

The Majelle was very comprehensive on the water laws to ensure equitable distribution of water. We may have to study the Islamic water laws in detail to ensure policies made are just. The fundamental principle in Islamic water law is the Right of Thirst  that is the right to quench thirst for humans, followed by animals and finally plants.