The Rights of Land According to It Period

(Created to Fulfill The Task of Agrarian Law)

Lecture:

Author by:
Nela Zulfa El Husna (15210140)
M. Ruslan Hidayatullah (15210181)

ISLAMIC FAMILY LAW

SHARIA FACULTY
MAULANA MALIK IBRAHIM STATE ISLAMIC UNIVERSITY OF
MALANG
2017
 CHAPTER I

INTRODUCTION

A. Background

Soil is a very important factor in human life, moreover, the environment

of the people of Indonesia are predominately drape life of the soil. For

manusiatanah life implies multidimensional. First, from an economic standpoint,

land is a means of production that can bring prosperity. Secondly, politically, the

ground can determine the position someone making decision. Third, as a cultural

capital, soil can determine the level of the owner's social status. Fourth, land

meaningful sacred, wherein each end of human life will go back to the land. The

opening of the land in a particular place is the beginning of birth land ownership

for individuals or groups, who according to customary law. The land clearing

begins with notification to the union law and labeled and limit. Furthermore, the

open land used as a tried and or above built dwellings occupied by each person

according to their needs and abilities, to the land tenure continues over time and

even down generations.

Land tenure conducted continuously be real menimbulkanhubungan

between man and the land, so that it can be said that relationship and processing

real action on the ground is the main element the birth of land rights. Based on the

acquisition and processing real action on land on an ongoing basis, it will give rise

to a legal relationship with the land occupied and earned, then legal relations is

recognized by the local government authorities or marked with

acknowledgment in writing or orally.

B. Problem Formulation
Problem formulation in this paper are:
1. How the rights of land in Islam period?
2. How the rights of land in custom law period?
3. How the rights of land in kingdom period?
4. How the rights of land in colonization period?
5. How the rights of land in UUPA period?

C. Purpose

Purpose in this paper are:

1. Explain the rights of land in Islam period
2. Explain the rights of land in custom law period
3. Explain the rights of land in kingdom period
4. Explain the rights of land in colonization period
5. Explain the rights of land in UUPA period
 CHAPTER II
DISCUSSION

1. The rights in Islam period

Ownership (milkiyah, ownership) in the Islamic Shariah is
defined as the rights set forth by God for man to take advantage
of an object.1 Ownership is not born of the physical reality of an
object, rather than the provisions of the law of God on the thing 2.
Islamic Sharia has arranged the issue of land ownership in detail,
taking into account the two (2) aspects related to the land,
namely: (1) the substance of land (raqabah al-ard), and (2) the
benefits of land (manfaah al-ard), namely the use of land for
agriculture and so on.
In Islamic Sharia there are two (2) types of soil, namely:
(1) land usyriah (al-ardhu al-'usyriyah), and (2) ground kharajiyah
3
(al-ardhu al-kharajiyah).
Usyriah Land is a land whose inhabitants converted to Islam
peacefully without war, for example Madinah Munawwarah and
Indonesia. Including usyriah land is across the Arabian Peninsula
conquered by war, such as Mecca, also the dead land that has
been turned on by someone4.
Usyriah Land is land owned by individuals, either
substance (raqabah), as well as utilization (manfaah). Then the
individual may be traded, mortgaged, donated, bequeathed, and
so forth.

1 (Al-Nabhani, An-Nizam al-Iqtishadi fi Al-Islam, p. 73)

2 (Abdul Ghani, Al-'is fi An-Nizam al-Iqtishadi fi Al-Islam, p. 8)

3 (Al-Nabhani, Al-Syakhshiyah Al-Islamiyah, the Section II p. 237)

4 (Al-Nabhani, Al-Syakhshiyah Al-Islamiyah, the Section II p. 237)

 This usyriyah ground if the form of agricultural land will be
subject to liability usyr (ie zakat agriculture) amounted to one-
tenth (10%) when irrigated with rain water (rain-fed). If irrigated
by artificial irrigation zakatnya 5%. If agricultural land is not
cultivated, is not affected by the obligation of zakat. Word of the
Prophet SAW, "In the land irrigated and rain zakat tenth of the
river, on land that is irrigated with a camel zakat half a tenth." 5If
the soil is not shaped usyriah farmland, for example in the form
of land settlement, no zakat. Unless the land was traded, then
exposed to trade zakat6.
If usyriah land was purchased by a non-Muslim (kafir), this
land is not affected by the obligation usyr (zakat), because non-
Muslims are not burdened with the obligation of zakat7.
Kharajiyah Land is land controlled by the Muslims through
war (al-harb), for example soil Iraq, Syria, and Egypt except the
Arabian Peninsula, or land controlled through peace (al-shulhu),
such as soil Bahrain and Khorasan8.
This kharajiyah ground substance (raqabah) is the
property of all the Muslims, in which the state through Baitul Mal
acting on behalf of the Muslims. In summary, this kharajiyah
zatnya land is state property. So kharajiyah zatnya land does not
belong to an individual, such as land kharajiyah. But the benefit
is for individuals. Although soils kharajiyah can be sold, assigned,
and passed, but differ with usyriyah soil, the soil should not be
diwakafkan kharajiyah, because the substance belongs to the

5 (Ahmad, Muslim, and Abu Dawud)

6 (Al-Nabhani, ibid., The Section II p. 240)

7 (Abdul Qadim Zallum, Al-Amwal, p. 48)

8 (Al-Nabhani, ibid., The Section II p. 248)

state. The land usyriyah diwakafkan may cause substance
belonging to the individual9.
This kharajiyah ground if the form of agricultural land will
be exposed to liability kharaj (land tax, land tax), the levy was
collected once a year from agricultural land in the amount
estimated in accordance with the condition of the land. Either
planted or not, kharaj still levied.
Land kharajiyah controlled by war (al-harb), kharajnya is
eternal. That is kharaj remains to be paid and not fall, even
though the owners converted to Islam or the land sold by non-
Muslims to Muslims. As Umar fixed levy kharajiyah kharaj of land
controlled by the war even though the owner had converted to
Islam10.
But if the land was ruled by peace kharajiyah (al-shulhu),
then there are two possibilities: (1) if the peace it establishes the
land becomes the property of Muslims, kharajnya permanent
(perpetual) even though the owners to convert to Islam or the
land sold to Muslims. (2) if the peace it establishes the land
belongs to them (non-Muslims), kharaj position equal to the poll,
which will be void if the owner to convert to Islam or the land
sold to Muslims11. If the soil is not shaped kharajiyah existing
agricultural land, for example in the form of land-settled, then he
is not affected by kharaj obligations. Similarly, not the imposition
of zakat (usyr). Unless the land was sold, will be affected by the
obligation of zakat trade12.

9 . (Al-Nabhani, Muqaddimah Ad-Dustur, p. 303)

10 (Zallum, ibid., P. 47; Al-Nabhani, ibid., The Section II p. 245)

11 (Zallum, ibid., P. 47).

12 . (Al-Nabhani, ibid., The Section II p. 247).

 But sometimes kharaj and zakat (usyr) must be paid
together on the ground. Ie if there is ground kharajiyah controlled
through war (to be exposed kharaj perennial), and the land was
sold to Muslims (to be exposed zakat / usyr). In this condition,
kharaj paid first from the farm. And if the rest is still reaches
13
nishab zakat must also be issued .
According to Abdurrahman Al-Maliki, the land can be
owned by six (6) way according to Islamic law, namely through:
(1) purchase, (2) the beneficiary, (3) grants, (4) ihya`ul Mawat
(land turned off) , (5) tahjir (sets limits on the ground dead), (6)
iqtha` (state administration to the people).14
Regarding the sale, inheritance, and grants are clear. The
ihya`ul Mawat ground means is turned off (al-Mawat).
Understanding the dead land is land that has no owner and are
not used by anyone. Turning on the ground dead, it means
utilizing the land, for example, by planting it, and plant a tree,
build a building on it, and so forth. Word of the Prophet,
15
"Whoever revive dead land, the land belongs to him."
Tahjir means sets limits on a land. The Prophet said,
"Whoever makes a boundary on a ground (dead), the land
belongs to him." Medium iqtha`, meaning that the provision of
state-owned land to the people. Prophet upon arrival in the city
of Medina, had given the land to Abu Bakr As-Siddiq and Umar.
Prophet also never leave large tracts of land to the Zubayr ibn al-
Awam. (Al-Nabhani, ibid., P. 119).
Islamic Shari'a stipulates that ownership of agricultural
land will be lost if the land was abandoned three years in a row.

13 (Zallum, ibid., P. 49).

14 (Al-Maliki, al-As-Siyasah Iqtishadiyah al-Mustla, p. 51).

15 (Bukhari) (Al-Nabhani, An-Nizam al-Iqtishadi fi Al-Islam, p. 79).

The state will attract the land and give it to others who are able
to process them16.
Umar once said, "People who make a limit on the ground
(muhtajir) no longer be eligible for land abandoned it after three
years." Omar then implement the provisions of this by pulling the
farm of Bilal ibn al-Harith Al-Muzni abandoned three years. The
friend agreed to be consensus' Sahabah (consensus of the
companions of the Prophet SAW) on this issue17. Dispossession is
not limited to the ground dead (Mawat) owned by tahjir way (of
making the limit), but also include agricultural land owned by
other means Qiyas base bag. For example, owned through
purchase, inheritance, grants, and others. For the reason of law
(illat, ratio legis) of dispossession is not a means to have it, but
neglect during three years (ta'thil al-ard)18.

2. The rights in Custom Law Period

Ulayat right is part of communitys authority and
obligation in special custom law in special region as lebensraum
the resident to take benefit of natural source, including soil in
that place. Ulayat right community of costum law be regulated by
UUD 1945 (amendment) article 18B paragraph (2): Country
recognize and respect unity of custom law in community with
their traditional right along still life and corresponding with
community and countrys unity of Republic Indonesia principle
that be regulated in constitution. The next article 3 UUPA, With
remember provisions in article 1 and 2 implementation of ulayat
right and similar authorizes from community of custom right,

16 (Al-Nabhani, ibid., P. 136).

17 (Al-Nabhani, ibid., The Section II p. 241).

18 (Al-Nabhani, An-Nizam al-Iqtishadi fi Al-Islam, p. 139).

along according to reality still there, must such so that
corrersponding with nation and countrys interest, that by on
nation unity and cant conflict with constitution and another
regulation that higher.
Object of ulayat right is all of soil that there in environment of
relevan custom law community. While that become the object is
all of member community. People from outer of custom law
community can harness soil which be in that ulayat region with
permission from region ruler custom.
For custom law community in Indonesian region country there
assortment ulayat right, that each of them qre different. In
Ambon is called Pertuanan Right, Kalimantan Penyampeto,
Jawa Wewengkon, Bali Prabumian, Lombok Tanah Paer, anf
Minangkabau Ulayat, and ect
Community from outer custom law region banned entry in that
costum law region without permission custo ruler . Can entry with
requirement pay what the called pengisi adat. If outer person
entry without permission considered do criminal act and will get
sunction with custom punishmentthat apply in region custom
mentioned19.
What is the criterion for the persistence of customary
rights in group
neighborhood residents certain customary law that there are no
provisions, either in the UUPA or in its explanation. Presumably
Still their customary rights diketahuidari fact regarding (1) there
is still a group of people who are citizens of a certain adat
community, and (2) there is still land that is customary
community, which is recognized as belonging together the
community of customary law as lebensraum. Moreover, the
existence of customary rights of indigenous people's question

19 DR. H.M. Arba, SH., M. Hum, Hukum Agraria Indonesia, (Sinar

Grafika: Jakarta), page 95-96
also known from the fact they still are (3) the head of customs
and traditional elders who in reality and recognized by citizens,
perform daily activities, as a duty bearer communities control
their customary law , manage, organize designation, possession
and use of the land together20.

3. The Rights of land In The Kingdom

In the kingdom, the king claimed as the land owner is in power. This is the
embryo domein verklaring. (There is a different mechanism on the ground
claiming to the land in his power). So people have to pay taxes on the land where
they live.
a. The kingdom of Kutai
The kongdom of Kutai (around 400 M), long before the advent of the Europeans
in the archipelago, is actually setting the land issue is already known in the
governance system of kingdoms earlier. In its heyday Kutai kingdom had ever
known the existence of a provision regulating the event of use, processing,
maintenance, purchase, ownership system, wastelands, soils and forestry. The
provisions are as follows:
1. In the kongdom of Kutai known as the Book of the Law Brajananti or
Brajaniti.
2. During the Banjars kingdom known as the Book of the Law Sultan
Adam made around 1251.

b. The kingdom of Sriwijaya

Land system settings during the Sriwijaya kingdom (693-1400) is
known as the statute books Simbur Cahaya which is a relic of the
statute books Sriwijaya kings' era. The principle of ownership
rights to land, the king was regarded as the owner, while the
people as users (tenants) should pay tribute to the king as the
owner.

20 Harsono, Boedi, Hukum Agraria Indonesia, (Universitas

Trisakti:Jakarta), page 192
 c. Kingdom of Majapahit
Kingdom of Majapahit (1293-1525) was a kingdom that controlled
the whole archipelago and have the most complete regulations
on setting up community life. Majapahit ground in people's lives
plays an important role because it was made law on the right to
use land called Pratigundala. Pratigundala found in
Negarakertagama pupuh 88/3 line 4 page 37. The law drafted
with the background that the Majapahits kingdom is a kingdom
whose people mostly live from agricultural products. In the book
of laws is called religion, there are five chapters among the 271
chapters governing land issues. Soil under the laws of religion in
the Majapahit kingdom is the king. People just have the right to
work and picked up the results but do not own the land, the land
ownership remain with the king.

4. The Rights of land In The Colonization Period

In accordance with the principle adopted by the colonial
government at that time to obtain results as much from the soil
by giving special rights to the colonizers and rights, the agrarian
law in force at that time became diverse. In accordance with the
conditions and situations and legal differences communities.
In accordance with the system of governance at the time of the
Dutch East Indies, Indonesia region is divided into two parts
which have their own legal environment, namely:
1. The area was ruled directly by or on behalf of the Central
Government and referred to the Regional Gubernemen.
2. The areas that are not governed directly by the central
government called autonomous regions.
As the realization and the colonial government's desire to
profit as much as possible of the agricultural produce in
Indonesia the government tried to narrow the opportunity parties
private entrepreneurs to gain a strong guarantee on lands
diusahainya, such as to obtain the right eigendom. To employers
by the government can only be granted a lease on the empty
lands with limited time that is no more than 20 years as the right
persoonliij. The land can not be guaranteed debt. Likewise, the
right erfpacht government can not be given, because they
respect indigenous rights are not rnengenal erfpact their rights.
The existence of large agricultural regulations would conflict with
the economic policy of the Government (CultuursteIseI) force
people to plant certain crops as they are directed.21
In the history of the Dutch government in Indonesia there is
a dualism law concerning West Agrarian Law, and on the other
hand applies Indigenous Agrarian Law. Finally cultivation system
which is implementing a conservative colonial policy was
abolished and began the liberal system. Liberal politics is the
opposite of conservative political liberal system abolished dsn
begins. Liberal political principle is the absence of government
interference in the business, private given the right to develop a
business and capital in Indonesia. This is due to increasingly
sharp criticism addressed to the Government of the Netherlands
for its agrarian policy of encouraging the issuance of policies
both called Agrarisch Wet.
Colonial Period (before independence)
Rights on the ground that this colonial era, of course,
subject to the Law of Agrarian West stipulated in the Civil Code,
among the rights set out, among other things:
a) Eigendom rights (property rights)
Article 570 of the Civil Code states; Eigendom is the right
to freely use a full body full and to master the greatest
possible extent, provided that does not conflict with the
laws or regulations of general rules established by the
agency (power) are entitled to set them, and do not disturb
the rights of others; all of it except for the revocation
eigendom public interest with payments to eligible
according to the rules of general rules.
b) Rights Erfpacht (concessions)
Erpacht rights, are the most extensive objects that can be
imposed on somebody else's property. In Article 720 of the
Civil Code stated that a material right to enjoy fully the
usefulness of a product immovable property of another
person with the obligation of the member's annual tribute.
Also mentioned therein that erfpacht holder has the right
to seek and feel the results of it to the fullest. This right is
hereditary, many asked to keperlua agriculture. In Java and
Madura It erfpacht granted to large farms, places of
residence in the interior, plantations and small farms. Being

21 Boedi Harsono, Hukum Agraria Indonesia, Jakarta, penerbit Universitas

Trisakti,, 2013, p. 254
 in areas outside Java only for large farms, plantations and
small farms.
c) The right Opstal (passenger rights coral)
Opstal rights is the right to have a home, building or
planting crops on the land of others. According to Article
711 of the Civil Code states that the right material to have
buildings, bangynan-building and planting on the grounds
of others.

5. The Rights Of Land in the UUPA Period

The periode after the UUPA
1) Proprietary
According to section 20 of the UUPA, the property is hereditary
rights, the strongest and fullest that can possess people on the
ground. Property rights can be switched and transferred to
another party. Hereditary meaning that rights to land may
continue as long as the owner is still alive and if the owner dies,
his property may be continued by his heirs along qualify as a
subject of property rights.The strongest means property rights to
land more powerful than the other land rights, has no specific
time limit, easily defended from the interference of others, and
not easy to remove.22
Fullest meaning property rights to land owners to authorize wider
when compared with other land rights, can be a host for other
land rights and land use wider when compared with othe land
right. One particularity of Property Rights is not limited in time
and is awarded for an indefinite period of duration is for property
rights is still recognized in the context of the enactment of the
UUPA, except with the provisions of section 27 of the UUPA.
Section 27 of UUPA explained that proprietaru removed if:
-The land falls to the state because:
1. Revocation rights pursuant to section 18
2. Submission voluntarily by their owners
3. Abandoned
4. The provisions of section 21 verse 3 and section 26 verse 2

- The land is destroyed in principle, a legal entity may not

have freehold land unless specifically provided otherwise by
the Act or other regulations, as determined by Government
Regulation No. 38 year 1973, namely:
22 Arba, Hukum Agraria Indonesia, Jakarta, Sinar Grafika, 2015, p. 145
 1. The banks were established by the state.
2. Association-association of agricultural cooperatives
established under Law No. 79 year 1958.
3. The religious bodies designated by the minister of
agriculture / agrarian once heard a minister of religion.
4. social agencies appointed by the minister of agriculture /
agrarian after hearing the social minister.

2) The right to business as stated in the UUPA, the right to

cultivate is the right to cultivate land that is directly controlled by
the State within a maximum period of 35 years and can be
extended a maximum of 25 years, for the company's agricultural,
fisheries or farms. Right to cultivate the land given over the
extent of at least 5 hectares, with the provision that if the extent
of 25 hectares or more must wear proper capital investment and
engineering company, in accordance with the times. These rights
are the rights that are specific to cultivate land that is not his
own to the Company of Agriculture, Fisheries and Livestock. The
process of the right to cultivate the land itself is a submission by
the owner of the land to the state and then given again to the
status of lease rights to interested parties. That is, to make the
status of the land into state land, the competent authorities (in
this case the applicant the right to cultivate) must liberate the
land from the owners duration by providing compensation.
Afterwards, the land applied for his right as the right to cultivate.
There are two groups that may have the right to cultivate,
namely Indonesian citizens and legal entities established under
Indonesian law and domiciled in Indonesia.23

3) The right to the building In section 35, verse 1 UUPA explained

that the building rights is the right to establish and have
buildings on land that is not his own with a maximum period of
30 years. At the request of the rights holder and bearing in mind
the purposes and the state of the buildings, this period may be
extended up to a maximum of 20 years. Under section 19 of
Government Regulation No. 40, 1996, on leasehold, broking, and
the right to use land, explained that the right to build only for
Indonesian citizens and legal entities established under
Indonesian law and domiciled in Indonesia. Building rights are not

23 Rusmandi Murad, Menyingkap Tabir Masalah Pertanahan, Mandar Maju,

2007, p. 96
reserved for foreigners and foreign legal entities. Building rights
granted to the decision granting the right by Ministers or officials
appointed on the proposal of the management rights holders,
and registered in the land book at the land office

4) Right to life
Based UUPA section 41, Right to use is the right to use and
collect the produce of the land directly controlled by the State or
land owned by others.In section 42 UUPA explained that the right
of use can be given to four groups, namely the Indonesian
citizen, foreigners domiciled in Indonesia, a legal entity
established and domiciled in Indonesia, and the foreign legal
entity which has a representative office in Indonesia. These use
rights may be granted on the ground with the status of state
land, land management rights, and land ownership rights. Use
rights may be granted during a specified period or for land used
for certain purposes. In addition, the use rights can also be
provided free of charge, with payment, or the provision of
services in the form of any kind. Granting rights of use should not
be accompanied by terms that contain elements of blackmail.

5) Right to lease for building

UUPA described in section 44, that person or legal entity has the
right to lease on the land, if he has the right to use someone
else's land for building purposes, to pay to the owner a sum of
money as rent.
Subject lease rights, namely, an Indonesian citizen, foreign
citizen domiciled in Indonesia, Indonesian legal entities and
foreign legal entities domiciled in Indonesia.
In contrast to the building rights are derived from state land or
land property rights, where the beneficiaries had to pay income
to the state or to the owners at the beginning of entitlement, the
right to lease for the building, the lease payments can be done
once or on each a certain time, a month or after the land is used,
as well as the lease agreement should not contain elements of
blackmail.

6) Rights of open land and collect forest products

In UUPA section 46 explained that the right of open land and
collect forest products is a right that can only be owned by an
Indonesian citizen and regulated by the Government. By using
the right to collect forest produce legally, not by itself acquired
property rights over the land.

CHAPTER III
CLOSING
1. Conclusion

a. The rights in Islam period in the Islamic Shariah is defined

as the rights set forth by God for man to take advantage of
an object. Ownership is not born of the physical reality of
an object, rather than the provisions of the law of God on
the thing.
b. Ulayat right is part of communitys authority and
obligation in special custom law in special region as
lebensraum the resident to take benefit of natural source,
including soil in that place.
c. In the kingdom, the king claimed as the land owner is in power. This is the
embryo domein verklaring. (There is a different mechanism on the ground
claiming to the land in his power). So people have to pay taxes on the
land where they live.
d. In accordance with the principle adopted by the colonial
government at that time to obtain results as much from the
soil by giving special rights to the colonizers and rights, the
agrarian law in force at that time became diverse.
 LIST OF BOOK
Arba, Hukum Agraria Indonesia, Sinar Grafika, Jakarta, 2015
Boedi Harsono, Hukum Agraria Indonesia, penerbit Universitas
Trisakti, Jakarta, 2013
Darwin Ginting, Hukum Kepemilikan Hak Atas Tanah, Ghalia
Indonesia, 2010
Rusmandi Murad, Menyingkap Tabir Masalah Pertanahan, Mandar
Maju, 2007
Supriadi, Hukum Agraria, Sinar Grafika, 2007
Syeikh taqiyuddin an-nabhani, nizdamul iqtisadi fil islam
Syeikh taqiyuddin an-nabhani, al syahsiyyah al islamiyah