There is a right for all the people to benefit from the public utilities, for the purpose for which they are designated. They should not be used except for the purpose for which they are designated. Thus, it is not allowed to use a road for the purpose of a recess (parking for a break), nor parking to trade, nor anything that the road did not exist for. This is because the road exists for the purpose of travelling upon it; unless it were to be used in such a way that does not interfere with travelling; and this marginal use is evaluated as that which does not cause harm or difficulty for passers by. Rivers also should not be used for other than the matter, which they exist for. So if a river exists for irrigation, as would be the case for example with a small river, then it should not be used for navigation (shipping), while if it exists for both matters, like the Nile and Tigris, it may be used for both.

Also no one is allowed to designate for himself anything from the public utilities, like the pastures, Masjid and seas. The Prophet said:

“There is no seclusion (Hima) except for Allah and His Messenger,” narrated by Abu Dawud through Ass’ab ibn Jathama. The origin of seclusion (Hima) to the Arabs was that their chief, when he camped in a fertile place, would let a dog bark at the top of a high place, and wherever the voice of the dog reached on all sides, that area would be protected for him, and no one would be allowed to send his cattle (flock) to graze inside it, while he was still able to graze his flock with other people in other places. So the sanctuary (Hima) is the protected place, and it is different from the allowed (Mubah) place. Thus, Islam prevented people from secluding any of the public things for their own use to the exclusion of the others. Accordingly, the meaning of the Hadith is that no one is allowed to protect (for one’s use) any of those things, which belong to all Muslims, except Allah and His Messenger, for only they have the right to protect any of these things they deem appropriate. The Messenger of Allah acted in accordance with this, so he protected some places. It is narrated from Ibn ’Umar, “that the Prophet protected the (land of) Naqee’a for the horses of the Muslims,” narrated by Abu Ubayd in the book of Al-amwal (properties) i.e. the Prophet protected a place called an-Naqee’a i.e. a land which was thoroughly soaked with water and was therefore fertile, it was 20 farsakh (a measure of length) from Al-Madina. So people were prohibited from inhabiting this dead (uncultivated) land, thus the pastures could grow, and special flocks were allowed to graze whilst others were prohibited.

What is meant here is that he reserved it for the horses used in Jihad in the way of Allah. The Khulafaa of the Prophet after him also protected land – ’Umar and Uthman protected some of the public places, and this matter became known to the Sahaba and none of them denied it, so it became an Ijma’a-as-sahaba (concensus of the companions). It was also narrated from Amir ibn Ubaydullah ibn az-Zubair from his father, that he said: “A Bedouin came to ‘Umar and said: ‘O Ameer of the believers, this is our country on which we fought in jahiliyyah (days of ignorance)

and became Muslims on it, so why do you protect it?’ ‘Umar bowed his head and started to blow and twist his moustache, as he used to twist his moustache and blow when something worried him. When the Bedouin saw him doing that, he repeated what he had said to him. Then ‘Umar said: “The property (Mal) belongs to Allah, and the human beings are servants of Allah. By Allah had I not been charged with that in the way of Allah (FeesabeelIllah) I would not have protected one handspan of the land,” narrated by Abu Ubayd in Al-amwal.

The prohibited protection mentioned in the Hadith includes two matters: the first is the dead (uncultivated) land, which is allowed for the person to inhabit and take from. And the second is the protection of the things which the Prophet made the people associates in, like the water, pastures and fire; for example where someone designates a canal of water to irrigate his plants and prevents others from doing the same.

Ahmed narrated from Iyas ibn Abd that he said: “Do not sell the excess water as the Prophet forbade selling water.” Hisham narrated from Al Hassan, that the Prophet said: “Whoever prevented the excess water to prevent with it the excess pasture, Allah will prevent him of His bounty on the Day of Judgement”, narrated by Abu Ubayd in Al-amwal. Thus it becomes clear that the State is allowed to protect the dead (uncultivated) land, and that which enters into the public property, for anything that it considers to be in the interests of the Muslims, on condition that it does not cause harm to anybody.