Social Function of Property in Islamic Law: Egyptian Civil Code Article 802

In the modern period, the concept of property has been the subject of many studies. Determining the philosophical and legal foundations of the concept of property in the contemporary period is essential for analyzing the development of the notion. Another important term that stands out in the studies on property is social function. The subject of this study is to examine the development of the theory of social function from the perspective of Islamic law in Article 802 of the Egyptian Civil Code and its aftermath. In fact, the concept of social function concerning property is identified with the French jurist Léon Duguit (d. 1928). Duguit claimed that property is not only an individual right but also involves duties to society. This approach emphasized the social aspect of property and suggested that property owners have particular responsibilities for the general social welfare. The social function was discussed at the codification stage in the Arab-Islamic world with ʻAbd al-Razzāq Ahmad al-Sanhūrī (d. 1971) and adopted by Muslim jurists. Sanhūrī presented comparative studies in modern and Islamic law and played an important role in drawing the property framework at the codification stage. Muhammad Abū Zahrah (d.1974) and ʻAlī al-Khafīf (d.1978) analyzed the social function theoretically and explained it from an Islamic perspective. Although Muhammad Abū Zahrah and ʻAlī al-Khafīf discussed the social function theory within an Islamic framework, this paper proposes that these explanations were a reaction to Duguit's theory. It shows that the theory is an object of debate in the context of both Western legal philosophy and Islamic law. A detailed theoretical and practical examination of social function concerning property in Islamic law has not been identified in contemporary literature. This paper aims to examine the introduction of the social function theory into Islamic law and its formulation in law-making and literature with respect to specific actors.