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62 Colum. L. Rev. 450 (1962)
Property, Right, and Contract is Muslim Law

handle is hein.journals/clr62 and id is 490 raw text is: PROPERTY, RIGHT, AND CONTRACT IN MUSLIM LAW SABA HABACHY* In recent years, some countries whose constitutions proclaim that Islam is the religion of the state and that private property is inviolable have been prominent in nationalizing the assets of foreign nationals in disregard of long-standing contractual obligations.' This phenomenon of our times raises important legal questions relating to the protection of foreign investments in professedly Muslim countries. These questions may be briefly summarized as follows: 1. In the majority of cases, the taking of foreign assets and the violation of contractual obligations has been justified as a measure of retaliation for real or imaginary wrongs. Is such a justification valid according to the teaching of Muslim law? 2. Does Muslim law extend equal protection to private property and other rights of foreigners; or does it discriminate in the treatment of these rights, whether they are in rem or in personam, according to the nationality or faith of their holders? Does a valid contract entered into by a foreigner have sanctity in Muslim law? Does the rule of sanctity of contract apply equally to agreements with foreigners to which the Muslim state is a party? 3. In what respects, if any, and to what extent do the Muslim concepts of private property, right, and contract differ from their counterparts in modern Western systems of law? It is on this last, broader basic question that attention will be focused here. However, the first two groups of questions can be adequately and briefly disposed of by stating the following rules of Muslim jurisprudence: 1. The Shari'a, the Divine Law of Islam, fully recognizes the great moral principle that two wrongs do not make a right. Consequently, re- taliation is not a valid justification for unlawful seizure of property or breach of contract. This is especially true when, as is often the case, the victims of arbitrary action are not responsible for the wrong for which retaliation is sought. Some of the general principles of Islamic law that belong to ilm * Member of the Egyptian Bar to the Supreme Court and the Council of State of the U.A.R.; Lecturer in Law, Columbia University. 1. On March 15, 1951, the Malls (Legislative Assembly) of Iran passed a Single Article bill nationalizing the Iranian oil industry. See FORD, THE ANGLO-IRANrAN OIL DISPUTE OF 1951-1952, at 51 (1954). On July 26, 1956, President Nasser of the United Arab Republic nationalized the Suez Canal. See Finch, Editorial Comment: Post- Morteit on the Suez Debacle, 51 Am. J. INT'L L. 376 (1957). By Act No. 86 of 1958, Indonesia nationalized Dutch-owned enterprises as part of the struggle for the liberation of Irian Barat (West New Guinea). See 1 STATUS oF PERMANENT SOVEREIGNTY OVER NATURAL RESOURCES, U.N. Doc. No. A/AC.97/5 REV. 1, at 140 (1960). In 1961, the U.A.R. announced the nationalization of Belgian assets in Egypt in retaliation for Bel- gium's actions in the Congo.

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