Introduction
When visitors enter the Grand Mosque (est. 1396 CE) — the center of communal Friday Prayers — of Bursa, Türkiye, they are greeted by a strange sight.1 In the center of the carpeted prayer hall is a massive, sixteen-sided fountain.2 The story of the fountain, as told to curious visitors, is this: When Sultan Bayezid I3 began buying up property in Bursa, then his seat of power and the capital of the Ottoman Empire, for his Grand Mosque, one lone old woman, whose home was in the very center of the planned building, would not sell.4 Bayezid I begged.5 He offered exorbitant prices.6 But unlike all her neighbors, the old woman obstinately refused. When she eventually died, the Sultan acquired the house, but there were concerns about incorporating land from a reluctant owner into a sacred space.7 And so, the enormous fountain was built over the entirety of where her home once stood, both to honor her intention and to protect the validity of worshippers’ prayers.8 The story, whether historically accurate or not,9 raises many questions, but perhaps most salient for legal scholars is: Couldn’t the Sultan simply have taken her home?
Indeed, many of us are familiar with old ladies’ homes being taken.10 In the United States, the famous case of Susette Kelo and her defiant fight to keep her little pink house11 caused massive public outcry against the eminent domain power.12 And yet, the forced appropriation of property by a sovereign for public purposes has been described by American jurists as something “[n]o society has ever admitted that it could not [do].”13 We take government takings for granted, fighting over their contours and contexts rather than their existence.14 But is it true that they have always been universally accepted? And where forced government takings were practiced, have they always looked the same?
This Note excavates historical discourses of government takings in Islamic law to help answer these questions. It argues that while both Anglo-American and Islamic legal scholars largely approved the forced appropriation of property in some circumstances, these takings were based on fundamentally different views of property law and of the state’s relationship with it. And these differences may matter — in surprising ways — when it comes to how we experience forced sale. Across these differences, however, connections can be drawn between the concerns that inflame controversial government takings. By comparing these two traditions, we can learn more about why we allow this expansive power and when we feel it has gone too far.
In comparing premodern Islamic jurisprudence and practice (seventh to sixteenth century) with modern Anglo-American law (seventeenth century to present), this Note recognizes the incongruence of bringing together two very different time periods, societies, and traditions — each with its own vast internal complexity. This Note does so regardless for two main reasons: First, the primary contribution of this Note is not historical, but theoretical and legal. It seeks to bring out instances across time, space, and legal traditions as an exercise in exploring what takings can look like and what is at stake in them, not primarily as a means of representing each of those traditions. And second, the vast divergence of these time periods and traditions aids in the exercise of exploring how takings practices can differ in enormously variable contexts. Of course, many historical explanations, from economic changes to political realities, may be able to make sense of these differences — to tell us, in other words, why the Sultan did not take the old woman’s home or why uses of eminent domain exploded in nineteenth-century America — but these are not the questions of this Note. Instead, this Note asks whether government takings truly are universal in legal systems, what shared challenges animate their practice, and how different doctrinal balances — informed by fundamental theories of property — may be struck across those issues.
Government takings will appear with many names in this Note, from compulsory sale to eminent domain to forced appropriation. A definition of exactly what categories of land purchases this Note focuses on is therefore warranted. This Note analyzes transfers that are defined by five primary elements: (1) the appropriation of privately owned land (2) by or with permission of a public entity (3) for a public purpose (4) with compensation, usually fair market price, and (5) without the owner’s consent. Importantly, this excludes the confiscation of property as punishment for a crime, which has a long — but separate — history in Muslim societies.15 And it excludes unilateral seizures of land without claim to a public purpose, as well as cases of disputed ownership between Muslim rulers and private parties.16
There is very little scholarship on the question of government appropriation of property in premodern Islamic law.17 None of it is in English, let alone in law review articles, and those Arabic-language works that do investigate takings in Islamic law are focused on modern Muslim states’ practices of appropriation, with little attention paid to premodern fiqh (law).18 This Note is therefore likely the first exploration of premodern Islamic discourses and practices of “eminent domain.” It will argue three things about forced appropriation of property for public purposes in premodern Islamic law: First, that unlike in Anglo-American law, such appropriations were not justified on the basis of any inherent sovereign attributes with regard to property, but rather on wider doctrines of the limits of property rights; second, that the permissibility of takings was more varied and less unanimous than contemporary Arabic sources imply;19 and third, that the allowance of compulsory sale for public purposes was generally narrower in scope and required a higher level of public necessity than did eminent domain law. Finally, this Note will examine common tensions and anxieties that unite government takings across history and legal traditions: from public needs to individual rights to distributive justice concerns. It makes the overarching point, therefore, that while many communities will face the challenge of reconciling these conflicting interests, the Anglo-American practice of eminent domain is just one answer to these questions and may have surprising implications.
This Note proceeds in two parts. In the first Part, it lays out the foundational doctrines related to compulsory sale in both legal systems. It begins with an outline of Anglo-American eminent domain law: its roots in sovereign power and its particularly American developments. It then turns to the evidentiary record supporting eminent domain in Islamic law, beginning where the Sunni jurists20 do — with the authoritative sources — before moving to an outline of various jurists’ rulings on compulsory sale for public purpose. In Part II, this Note draws out implications of the differences explored in Part I. It first discusses the consequences of the fact that Islamic law never grounded the takings power in a positivist view of a sovereign right underlying all property. It then turns to the broader stakes of takings in any legal system — individual rights, public welfare, and distributive justice — exploring how the lack of unanimity and narrower scope of takings in Islamic law exemplify a different balance struck among these concerns. The Note concludes with reflections on the breadth of the eminent domain power and the importance of taking its implications seriously.
I. Discourses and Practices of Compulsory Sale
This Part begins with a brief introduction to eminent domain, as it is commonly known in Anglo-American law, as a backdrop against which to compare our exploration of Islamic law. It then moves to a basic survey of the relevant concepts and foundations of Islamic property law before presenting the evidentiary sources for and against the permissibility of compulsory sale. Finally, it outlines jurists’ rulings across Sunni schools of legal thought pertaining to compulsory sale and analyzes the language and implications of their rulings. Overall, this Part shows that while most Muslim jurists approved a form of forced government takings, those approvals were based on a very specific understanding of necessity and not on a special sovereign power underlying all property rights. It will also show that those approvals were quite narrow and that some sources present contradictory evidence.
A. Eminent Domain in Anglo-American Tradition
Though eminent domain in Anglo-American law is a complex and debated power, two things are clear: First, many early European and American thinkers tied the right of the government to take property for a public purpose to a belief that sovereign power underwrote all property rights, and second, the early articulation of the public purpose requirement was broader than strict necessity and has expanded even further with time.
The term “eminent domain” was famously first used by the Dutch scholar Hugo Grotius, who wrote De Jure Belli Ac Pacis (On the Law of War and Peace).21 In that book, he claimed that all property is under “the eminent domain” of the State.22 This means that:
[T]he state, or he who represents the state, can use the property of subjects, and even destroy it or alienate it, not only in case of direct need, which grants even to private citizens a measure of right over others’ property, but also for the sake of the public advantage.23
The French King Louis XIV similarly is said to have claimed “that kings had the full and free disposition of their subjects’ goods, both secular and ecclesiastical, for the needs of the state.”24 In Blackstonian terms, “the fundamental maxim” of the king’s relationship to private property is that the king is “the original proprietor of all the lands in the kingdom” and the “lord paramount,” and that all who possess land do so as “tenants” holding “tenements” under the sovereign lord.25 Early American thinkers also “thought all titles to land derived ultimately from the king.”26 When expressing such views, modern Anglo-American jurists often affirmed, however, that appropriation must be accompanied by the State’s duty to “make good . . . [the loss] to those who lose their property.”27
Of course, these views were well-grounded in the feudal property system, in which peasants lived on land at the pleasure of lords, and lords at the pleasure of kings.28 But postrevolutionary American law carried forth this positivistic view of eminent domain, and American constitutional law would enshrine both the takings power and the principle of just compensation in 1791 through the Fifth Amendment.29 Importantly, the Constitution does not explicitly create a power of eminent domain but rather assumes its existence as inherent to sovereignty.30 There is no case determining that Americans are subject to eminent domain power overall; instead, the only early disputes regarded which sovereign could exercise that power.31 That states could take property was assumed, but it was widely believed, for a time, that the United States could not exercise that power within a state’s borders.32 Over time, judges continued to expand the power, using the Necessary and Proper Clause and the demands of national development as justifications for this expansion.33
While some early European legal scholars grappled with the line between necessity and public use,34 American jurisprudence broadened the scope of eminent domain by both lowering the necessity requirement and allowing takings for private use with auxiliary public benefits.35 For example, legislation such as the mill acts36 allowed the owners of paper mills, grist mills, and foundries to take surrounding lands with compensation.37 Beginning in the 1840s, legislatures across the country also deployed eminent domain to facilitate the construction of railroads;38 public utilities came to rely heavily on eminent domain for electricity and communication lines; and, seeking economic development, western states soon opened the doors of eminent domain power to “virtually any enterprise promising to bring them capital.”39 Finally, the demands of urban redevelopment led to the renewed deployment of eminent domain in the mid-twentieth century.40 This latter expansion of public purpose doctrine41 culminated in the seizure of an old woman’s home for private corporate headquarters in Kelo v. City of New London,42 which has been called the “most hated Supreme Court case of the twenty-first century.”43 As this Note will discuss in section II.B, Kelo represents one of the most contentious forms of compulsory sale: The taking of an old lady’s home conjures images of senseless state force against the weakest and most rooted among us. Finally, litigation over the eminent domain power in the United States has also developed its corollary — takings law — and with it, the peculiarly American doctrine of regulatory takings, under which regulations may constitute a taking requiring compensation if they intrude too much into established property rights.44
B. Compulsory Sale in Premodern Islamic Law
1. The Evidence for Lawful Compulsory Sale in Islamic Law. — The first step in Sunni jurisprudential reasoning is to examine the authoritative sources.45 This section surveys the source material from which jurists traditionally draw when formulating legal rulings. It concludes that the record of evidence likely supports compulsory sale, but is scarce and potentially conflicting. Among the sources of legal doctrine, a clear hierarchy exists with the text of the Qur’an at the top, followed by authoritative narrations about and attributed to the Prophet Muhammad.46 In cases of silence, ambiguity, or other reasons for departure from these sources, jurists then consider legal tools such as consensus — which, in particular, carries independent authoritative weight — analogy, equity, legal canons, independent rationality, and public welfare.47 For Sunni jurists, the practices of the first four rulers of the Muslim community and the customs of the inhabitants of the prophetic city of Medina may also be relevant, though not dispositive.48
Islamic law protects the right of private owners to the use and enjoyment of their land.49 But can this default rule requiring consent be set aside in some circumstances? The Qur’an makes no mention of compulsory sale for a public need, and there is no recorded example of the Prophet Muhammad forcibly purchasing property for a public purpose.50 This means Sunni jurists formulating a legal answer are already dealing with a scant and perhaps unclear record of evidence for their rulings. However, the story about Muhammad most relevant to this topic is that of the building of the first mosque in Medina. Famously, the Prophet let loose his camel when he first arrived in the city and declared that wherever she stopped is where the first mosque would be built.51 She came to rest on land owned by two local orphan boys, Sahl and Suhayl.52 The young men offered to donate the land for free to the nascent Muslim community, but the Prophet refused this offer, insisting instead on buying the land from them at a fair market price.53 Though this was not a compulsory sale, it may provide evidence that, in Muslim thought, compensation should be offered for land even when taken for a public necessity. The relevant record of prophetic action or sayings, however, ends here.
The next most relevant story may be regarding the Caliph ʿUmar, one of the four early rulers of the Muslim world whose example carries normative weight for some jurists.54 When Masjid al-Haram, the sacred complex around the Kaaba in Mecca, became overcrowded with the growth of the Muslim community, ʿUmar became concerned.55 He bought land from some owners around the Mosque, but others refused to sell.56 ʿUmar reportedly took the properties anyway, leaving compensation for the owners inside the Kaaba building, where they eventually retrieved it.57 ʿUmar’s successor ʿUthmān reportedly did the same in the central Mosques of both Mecca and Medina when later expansions similarly became necessary.58
But, another story involving ʿUmar and necessary mosque expansions ends quite differently and creates a potentially contradictory report in the record of evidence on this question. ʿUmar once reportedly asked the Prophet’s uncle, al-ʿAbbās, about land he held adjacent to the mosque in Medina.59 “Sell it to me, or gift it to me, so I can make it part of the Mosque.”60 But al-ʿAbbās refused, so ʿUmar asked one of the Prophet’s companions to adjudicate the issue between them. Ubayy ibn Kaʿb heard the dispute and found in al-ʿAbbās’s favor.61 ʿUmar was frustrated, but Ubayy advised him, “have you not heard the story of David when God commanded him to build Jerusalem?”62 Ubayy then told a story involving King David’s planned construction of a temple in Jerusalem.63 The planned temple reportedly included (yet another) old woman’s land obtained without her permission.64 For that reason, Ubayy said, God prevented David from finishing the construction when it neared completion: “Oh God,” said David, “you refuse to let me build? So put this matter behind me.”65 Hearing the ruling in his favor and this story regarding David, al-ʿAbbās then asked, “you have ruled for me and [the land] is mine?”66 “Yes,” came the reply.67 He then declared that he would voluntarily gift the land for inclusion in the mosque.68
The existence of these two nested stories, both of which seem to contradict the idea that rulers may take property for public necessity, is confounding. It is certainly possible that ʿUmar simply chose to seek consent and adjudication when he need not have. Even still, these stories may be what lies behind the lack of consensus on this issue among jurists, even as contemporary scholars claim that early Islamic legal scholars were unanimous on the permissibility of compulsory sale of land for public use.69 Read against the backdrop of Quranic and prophetic silence on the question of compulsory sale for public necessity, this record of sources creates ambiguity and leaves space for jurists to rely on other forms of legal reasoning — beyond appeal to prophetic or Quranic authority — to reach a legal conclusion.
What is clear, however, is that compulsory sale is unanimously permissible in several other contexts within Islamic law. Examples of compulsory sale abound in the premodern fiqh texts, from selling hoarded and price-fixed property, to inheritance division, to the neighbor’s right of first refusal, and more.70 They are all similar in that the property owner’s consent to at least one element of the contract — whether it be the price, the buyer, or the sale overall — is missing. The jurists are unanimous that a judge has the power to force the sale of a debtor’s property in order to satisfy their debts.71 A preeminent book of Hanafi law states that scholars are “unanimous” in the opinion that if a monopolist or hoarder refuses to sell food for the people, the ruler “may sell it for him.”72 Finally, the right of shufʿa (preemption), or first refusal in the Anglo-American context, is firmly established in Islamic law.73 That means that when an owner chooses to sell their land without first offering it to their neighbor, the neighbor can petition a court to allow them to intervene and purchase the land directly without the owner’s consent.74 These forms of compulsory sale show that it is accepted practice among Muslim jurists that some sales — of both land and goods — can be obtained without an owner’s consent, depending on the exigent circumstances and interests involved.
2. The Jurists’ Rulings on Compulsory Sale for Public Necessity. — Many premodern jurists did not discuss compulsory sales by the government for a public purpose in their fiqh compilations.75 Among those who did address it, however, a general, though not firm, consensus emerged around a permissible form of appropriation in specific contexts. Two things, this Note argues, are notable: first, the widespread approval of compulsory sale coupled with the persistent lack of unanimity, and second, the narrow scope of permission with reference to only existing structures and absolute necessity.
On the first point, the majority of scholars in all four Sunni jurisprudential schools — the Maliki, Hanbali, Hanafi, and Shafiʿi schools — approve of compulsory sale for public necessity in some circumstances. The great Maliki scholar Muḥammad al-Khurshī’s view was that “the most common opinion in the madhhab (jurisprudential school) is that if the mosque becomes overcrowded with worshippers and they require expansion, an adjacent endowed property or private property can be [forcibly purchased], . . . [but] must be purchased for the price of similar property.”76 Anticipating questions about whether this ruling applies beyond mosques, al-Khurshī clarifies that “expansion of the mosque is similar to expansion of roads, and expansion of cemeteries.”77 Similarly, despite the general rule that endowed lands cannot be sold (and therefore consent to sale was not possible),78 the Maliki scholar Shihāb al-Dīn al-Qarāfī’s view was that “it is permissible to sell endowed lands around the mosque which are needed for its expansion. The ruling is similar for roads, because the Prophet’s companions allowed this in the Prophet’s Mosque, and because the need of the mosque’s expansion is greater than the need of the endowed land.”79 The Maliki scholar Muḥammad al-Ḥaṭṭāb also ruled that owners of land adjacent to mosques in need of expansion could be forced to sell.80
The Hanafi scholar Ibn al-Shalabī applied this approach to the compulsory sale context, writing:
[I]f the mosque becomes constrained for people, and there is land next to it owned by a man, his land can be taken for a fair price without consent. And even if next to the mosque there were endowed land (waqf), and they wished to add part of it to the mosque, [they could]. All of this is permissible with the approval of the judge.81
The works of Hanbali and Shafiʿi scholars expound similar positions.82 However, al-Khurshī’s reference to the most common opinion (al‑mashhūr) necessarily means that there were dissenting views that regarded such appropriations as categorically impermissible, even in cases of necessity. Claims to unanimity on this point throughout Islamic history are therefore overstated.83
On the second point, while these rulings do not themselves explain their justifications, the consistent invocation of required conditions (for example, overcrowded mosques) suggests the jurists recognize these rulings as departures from a default rule in which rulers cannot appropriate private property without consent.
This reference to necessity throughout their rulings demonstrates the connection between compulsory sale for public need and wider property doctrines of necessity. In both Anglo-American and Islamic law, appropriating private property is permissible in cases of private necessity with compensation.84 Early Muslim jurists elaborated the concept of private necessity extensively, considering paradigmatic cases in which the impermissible — such as eating carrion, destroying another’s property, paying exorbitant prices, or harming others — may become permissible.85 Compulsory sale for public need in premodern Islamic law, then, appears merely to extend this private logic of necessity to collective needs. It does not go further than this.86 Importantly, these applications of public necessity are, in many ways, merely the broad-based application of permissions that would also function on the individual level under necessity doctrine, such as the need for food, the need to use roads, and the need (indeed, obligation) to perform congregational prayers.87
These premodern rulings, and the general law of necessity, justify only a narrow form of forced sale, because they are restricted to the expansion contexts of existing and socially necessary infrastructure, such as mosques and roads. Significantly, these jurists never discuss the possibility of using compulsory sale to build new structures. Expanding an existing structure, unlike building new infrastructure, is similar to the hoarding or monopolist context, in the sense that no other property but the adjacent land can be purchased to satisfy the need of expanding pre-existing structures. Both expansions of existing necessary infrastructure and purchases of hoarded grain during a famine are therefore cases of public necessity, where the public both (a) needs something and (b) no other property is available to satisfy that need.88 This reasoning alone does not justify forced appropriation for new projects, which could theoretically be built anywhere and therefore do not face the same monopoly issue. Neither would such logic extend to projects of lesser public necessity than the accessibility of the Friday Mosque, the attendance at which is a religious obligation on every male Muslim, or the use of public roads. It would not, therefore, justify other beneficial public projects that may not rise to this level of necessity.
II. Comparing Compulsory Sale and Eminent Domain
This Part explores the implications of the comparison between public appropriation of private property in premodern Islamic law and modern Anglo-American law. Three important differences characterize compulsory sale and eminent domain within these respective legal systems. First, eminent domain is closely linked to the concept that sovereign power underlies all property rights, and is therefore associated with a form of legal positivism.89 Second, even going by the earliest articulations of eminent domain in Anglo-American law, the public purpose justification is much broader than absolute necessity (ḍarūra) in Islamic law. Further, the common approach of Muslim jurists applying this reasoning only toward land that is nonfungible — as in the expansion context, but not toward land for new development — appears totally absent from the Anglo-American tradition. Third, the viewpoint that compulsory sale for public necessity is permissible in Islamic law was not universally shared historically. This means that — despite the prominent views in both legal traditions that approve of some form of government takings — the source of the power, the underlying justificatory logic, and the scope of support are all at odds with one another.
In the following two sections, this Note examines the implications of these differences, beginning with the first difference, namely the location of the eminent domain power in sovereignty itself. It argues that coupling compulsory sale and sovereignty may have the effects of first, requiring state intervention for the exercise of compulsory sale, and second, casting more government interventions as takings rather than mere regulation. In the second section, the Note focuses on the common threads animating doctrines of public appropriation: individual rights, public need, and distributive justice. This exploration demonstrates the stakes of eminent domain law and the contingencies — rather than inevitabilities — of every doctrinal choice.
A. Property and the Prince
In this section, this Note discusses the implications and significance of locating the takings power within inherent sovereign attributes.90 The differences in scope and unanimity will be discussed in section II.B. As a reminder, Anglo-American jurists have described all private property rights as under the “the right of eminent domain” of the state,91 as “ultimately [derived] from the king,”92 as akin to tenants’ rights under the king as the “universal lord” and “original proprietor of all the lands in the kingdom,”93 and as subject to the inherent “sovereign attribute” of being able to exercise eminent domain, “rather than [as] a property right” subject to the community’s needs.94 What seems notable, instead, about government takings in some early Islamic legal discourses is just how little effort is made to find a justification for the power, especially not one that lies in sovereignty or any special attributes of the state. Indeed, taking property for public necessity is perfectly in line with other forms of compulsory sale under Islamic law, in which the necessity of private persons is a consistent justification for appropriating the property of others.95 What runs through all these rulings in Islamic jurisprudence is the simple idea that there are some limited reasons, both individual and communal, that may justify overriding the consent of a property owner. The public’s need for a scarce resource, whether land or grain, in thin markets is just one of them.96 This Note offers a few preliminary reflections on the consequences of locating the power to take in sovereignty itself.
First, compulsory sale for public necessity in Islamic law, divorced as it is from inherent state sovereignty, does not depend on the state for its exercise. While eminent domain requires state action, under Islamic law’s compulsory sale, a whole neighborhood of people could theoretically come together and seek, through judicial complaint or otherwise, the forced sale of a parcel of land to serve a public necessity. This means that while compulsory sale is a legal tool potentially accessible to all, eminent domain is a power limited to the state and dependent on government intervention. Importantly, one cannot point to any cases from Muslim history in which a communal form of compulsory sale was exercised, but it remains theoretically possible within the Islamic legal framework — particularly given the existence of opinions that a judge, rather than a sovereign, must approve such a sale97 — despite being impossible under Anglo-American eminent domain.
Second, the location of the power in inherent sovereign attributes may affect how the power is both exercised and perceived. Viewing private property as inherently contingent on sovereign approval may lower the threshold for removing that approval. If the state already has an underlying right to all land, then it may be easier to justify reclaiming that land for a public purpose.98 And this reasoning may partially explain why eminent domain began with a broader scope of public use than Islamic law’s public necessity.99 This conceptual underpinning may also impact perceptions of the power by the people upon whom it is enacted, either by lessening the anger at relinquishing property rights that were always contingent anyway or by increasing the indignation by conceptually separating the government from the community. The location of the takings power in an inherent sovereign right to all land may also affect how takings are doctrinally framed. For example, the concept could have the counterintuitive effect of casting all government interventions into private property in the light of eminent domain and takings, leading to uniquely American jurisprudential developments such as regulatory takings, which struggle to distinguish the police power from the eminent domain power.100 Doctrines like compulsory sale, by contrast, may be able to delineate more finely between the wholesale forced purchase of land by any necessity (public or private) and the imposition of regulatory burdens by the sovereign.
Some may argue that private property rights are also contingent in Islamic law, dependent — at least conceptually — on the sovereignty of God rather than the state, and therefore the potential differences discussed here may be overstated.101 However, jurists have not invoked God’s sovereignty in justifying the use of compulsory sale, and it remains significant as a distinction for the source of the power and the enactor of the power to be separate in Islamic law rather than united within one entity in Anglo-American law. One should also not overstate the difference with Islamic property law, which though less positivist in its valence, still often limits private property rights in many ways.102
B. What Is at Stake in Takings Law?
The story of a government taking is evocative and challenging,103 conjuring, as it often does, an image of a lonely property owner — perhaps an old woman clinging to her land104 — standing against the vast machinations of the state. This section is about how exploring these two legal traditions and historical moments can help us better understand what is at stake in that story. It explores three key shared anxieties — individual rights, public need, and distributive justice — at issue in eminent domain and compulsory sale, and the common threads between them. While this Note has hopefully shown that Anglo-American eminent domain is not universal, the tensions explored below may be, and the key question is how any given legal system will weigh each of these interests and seek to balance them. Exploring how these interests, well-known in the Anglo-American legal tradition, manifested in parallel and different ways in Islamic legal history may help explain the different compromises struck within these legal systems, and the options available to any society, in seeking to resolve them.
1. Autonomy. — The first inherent tension in takings — and the primary reason for their contentious nature — is the violation of individual autonomy and rights. Compulsory sale involves just that: compulsion. And therefore, at a basic level, it is a deep violation of consent, leading often to vocal resistance and uproar. We’ve seen this in both legal traditions: in al-ʿAbbās’s resistance to ʿUmar’s order, in the nameless old woman’s defiance of King David, in Susette Kelo’s fight for her home, and in the old woman’s disobedience of Bayezid I.105 Although the latter story may not be historically accurate, it continues to represent a story that resonates: People — particularly old women, who are stereotypically rooted in the homes of their own making — do not like to be pushed out of their homes by the government (or anyone).106 Indeed, people often experience this not only as a violation of consent, but as a violation of their very personhood, because of how deeply homes are associated with our sense of selves.107
This principle — that the loss of one’s home is an irreplaceable violation of the self — is recognized in both legal systems. American law often resorts to specific performance as a remedy in personal real estate cases, recognizing the nonfungibility of one’s home.108 And Quranic text repeatedly emphasizes the importance of homes and the gravity of forcing people out of them through verses such as: “And [the bounty is] for the poor refugees who have been driven out of their homes,” and “You must not shed one another’s blood, nor drive one another out of your homes.”109 The violation of taking someone’s home — even that of an elderly woman — is not, however, remedied through the compulsory sale practices of either legal system in a way that recognizes that subjective loss. Instead, both systems emphasize fair market value as the proper compensation for a taking, despite the fact that this would not, by definition, account for the homeowner’s subjective loss — and the violence to their very personhood — as a result of the taking of their home.110
2. Public Works. — But both systems contain viewpoints that agree that, at times, this power must be exercised, and this is because of the second tension that runs through government takings: the public need for social services, land, and development. In the Anglo-American tradition, the dominant view is that eminent domain is a necessary solution to an economic and social problem: that of lonely property owners standing as obstacles to projects of widespread collective benefit.111 Grotius described this idea as almost self-evident when he wrote: “[A]nd to the public advantage those very persons who formed the body politic should be considered as desiring that private advantage should yield.”112 It is this same logic, expressed in a narrower way, which this Note argues underwrote the premodern Muslim jurists’ rulings regarding compulsory sale in necessary mosque expansion.113 Where the public needs, or would hugely benefit from, something and only certain land will do, the clash of public interest and private rights may indeed be inevitable. And the story of modern states is one of such clashes increasing,114 since theoretically, to build a straight road for fast-paced driving or tracks for a railroad, one will inevitably narrow the available land to only those in the planned path, increasing the chances that someone in that path is loath to part with their land.
Public projects, robust social services, and economic development, then, would seem to go hand in hand with a strong power of eminent domain. But this Note’s glimpses thus far into premodern Islamic doctrine and practice may also caution otherwise. This Note has seen examples of Muslim rulers participating in large-scale urban development without resorting to compulsory sale or the destruction of existing cityscapes.115 Similarly, Islamic property law also historically contained other potential mechanisms through which to accomplish important social projects such as roads, hospitals, schools, and bathhouses.116 It is critical then to recognize that even a comparatively less positivist property system can accommodate, to an extent, important public interests.117
3. Distributive Justice. — Finally, our comparative analysis shows that the realm of government takings implicates important questions of distributive justice, including who benefits from takings, who decides when they happen, and how those decisions are made. The compensation requirement is insufficient to assuage distributive concerns about who primarily benefits from takings and who is harmed.118 This Note has already seen the history of private industry reaping the rewards of eminent domain in the United States, often at the expense of poor rural and urban communities.119 Indeed, in some ways eminent domain “effectively chang[es] the structure of property rights,” and in that way, “can be used to distribute and redistribute material benefits.”120 And the redistribution of property away from vulnerable groups can happen even when private industry is not directly involved.121
But it is not so easy to see what distributive concerns were at play in Muslim compulsory sale without a more careful history of class distribution among urban and rural landowners in each geographic area and time period.122 All we know is that the restriction of many jurists’ rulings to mosque and road expansions likely implies an urban setting, and that city dwellers — the victims of these compulsory sales — in these early time periods were often wealthier than their rural counterparts.123
In addition to distributive concerns, this Note has also seen concerns about direct corruption of rulers themselves. Muslim jurists were concerned, for example, about rulers they perceived as corrupt, like Baybars.124 This concern also manifested in their differences of opinion on who should make the compulsory sale decision, whether rulers, administrators, or judges.125 Anglo-American thinkers have also raised concerns about self-interested leaders exercising the eminent domain power.126 Similarly, jurists have expressed different viewpoints about the process of making these decisions,127 and the question of process has also been of particular concern to American homeowners subject to eminent domain today.128
It is important to note that this Note has presented an incomplete picture. We do not yet know the mechanics of how these doctrines were implemented throughout premodern Islamic history. But this is not a work of legal history. It is instead a theoretical project asking — through exploring glimpses of takings law in various legal systems and time periods — what the story of government takings is, and what is at stake in their exercise against the weakest among us. Fundamentally, these tensions and concerns likely inhere in all legal systems and societies,129 but, depending on commitments to different values and perhaps upon competing social and economic visions, legal systems have struck different balances along the spectrum, from European rulers who once took land without either compensation or public purpose130 to Muslim jurists who argued that compulsory sale for public necessity was never allowed under any circumstances.131 Anglo-American eminent domain law is just one point — or more accurately, many subpoints — along the complex continuum of this highly contested space.
Conclusion
Is a sovereign power to take private property for public ends inevitable? This Note has answered resoundingly: No. Premodern Muslim jurists did not all agree on this question, did not locate such a power in state sovereignty itself, and — when they did allow forced purchase — seem to have done so in a very narrow scope of circumstances.
And yet, despite assumptions to the contrary, the examples of divergent historical doctrine and practice presented here may suggest the possibility of developing advanced built environments and economic systems without recourse to government takings. When, then, this power is a necessary legal tool in the creation of particular societal structures is an open question. It is not enough to assume that any society, or indeed any modern society, requires a particular form of eminent domain or the eminent domain power itself. Instead, the choices we make to strike different balances across shared tensions and concerns are not universal. Takings are a difficult, confounding area of the law.132 We should therefore take takings seriously, asking deeper questions about not just when and how the power is exercised, but if it should be exercised at all.