تحلیلی بر نسبت نظریه ملکیت در نظام حقوقی اسلام و نظریه تعهدات در نظام حقوقی رومی ژرمنی معاصر

‌ ∴ Introduction ∴ ‌
The interplay between property law and the law of obligations has long been a focal point in legal theory across different jurisdictions. In Romano-Germanic legal systems, scholars have traditionally distinguished two main categories—property law (governing the acquisition, transfer, and termination of ownership) and the law of obligations (focusing on the creation, modification, and extinguishment of obligations). Within this framework, contract law and civil liability are treated as subcategories under the law of obligations, separate and distinct from property law. This clear conceptual demarcation derives from the fundamental differentiation between real (absolute) rights and personal (relative) rights. Real rights impose legal duties on the entire world to respect the owner’s exclusive interest in a thing, whereas personal rights establish obligations only between specific parties, as in contracts or civil liability cases.
     By contrast, in the Islamic legal system, many preeminent scholars have advanced a general theory of obligations that includes contracts and civil liabilities. However, the authors of the present study contend that Islamic law instead centers legal relationships primarily on contracts and quasi-contractual liabilities (extra-contractual liabilities). Their argument is that these categories share a deep connection with property law through the overarching theory of ownership—or more specifically, the theory of the transfer of ownership. In other words, Islamic law sees ownership as the cornerstone for explaining how contracts and civil liability operate, while Romano-Germanic law has historically viewed them in a separate sphere known as the law of obligations.
     Modern legal developments in the Romano-Germanic sphere, however, reveal a trend that blurs the once-bright line separating property law from the law of obligations. Increasingly, legal doctrines treat certain personal rights, particularly those arising from contracts and civil liabilities, as capable of directly effecting ownership without an intervening, independent “obligation” stage. In doing so, the Romano-Germanic systems exhibit a convergence toward the Islamic conception of property rights, suggesting that contract law and civil liability can be reclassified under the umbrella of property law. Against this backdrop, this article investigates how personal rights in contract and civil liability contexts may function similarly to ownership rights, thereby prompting a reevaluation of classical classifications. This inquiry culminates in a comparative analysis of how both systems organize legal relationships, hoping to clarify ongoing debates about the primacy of obligations versus ownership.
‌ ∴ Research Question ∴ ‌
The core question driving this study is: Under what conditions and by what legal mechanisms can the outcome of a legal source—be it a contract, unilateral act (unilateral obligation), or quasi-contractual obligation (extra-contractual liability)—be categorized as ownership, and how do these outcomes and effects align with or diverge from the theory of ownership in Islamic law and the notion of obligations in the Romano-Germanic tradition? By systematically examining the legal underpinnings of ownership versus obligation, the study aims to reveal whether personal rights, once strictly confined to the law of obligations, have begun to shift meaningfully toward direct claims in property law. More specifically, it seeks to identify the reasons behind, and the practical consequences of, reclassifying contracts and civil liability as subcategories of property law.
     This question emerges from the larger scholarly debate regarding the convergence of different legal systems. Examining cases where personal rights, such as those generated by contracts or extra-contractual liabilities, can effectively transfer ownership points to a possible unification or harmonization of diverse legal doctrines. The study thereby highlights how each legal tradition might enrich its theoretical constructs and practical applications by appreciating alternative approaches.
‌ ∴ Research Hypothesis ∴ ‌
Based on preliminary doctrinal analysis and comparative observations, this article hypothesizes that a convergence is unfolding between the Islamic concept of ownership-based legal relationships and the Romano-Germanic concept of obligations-based legal relationships. Initially, Romano-Germanic civil codes separated real and personal rights so strictly that contract law and civil liability naturally fell under the law of obligations, effectively segregating them from property law. Islamic law, conversely, has given primacy to ownership as the definitive concept underpinning contracts and quasi-contractual liabilities.
     As Romano-Germanic systems evolve, however, personal rights created by contracts or civil liabilities are no longer universally confined to the realm of relative obligations. Rather, they increasingly exhibit a capacity to directly generate or affect real rights. This shift may not be uniform across all legal systems or circumstances, but it does suggest that the earlier bright-line distinction between real and personal rights has softened. If this hypothesis is borne out, it would imply that modern legal thought in the Romano-Germanic tradition has moved closer to the Islamic theory of ownership, recognizing a more integrated relationship between obligation and property than before. In turn, this realignment might offer Islamic law renewed theoretical insights on the nuances of obligations, especially where ownership and personal rights intersect.
‌ ∴ Methodology & Framework, if Applicable ∴ ‌
To investigate these questions and test the hypothesis, this article adopts a doctrinal and comparative methodology. The research begins by systematically examining primary and secondary legal sources in both the Romano-Germanic and Islamic traditions. The doctrinal analysis includes an in-depth review of statutory provisions, judicial precedents, and scholarly commentaries that have shaped classical and modern understandings of ownership and obligations. In this phase, the study draws on authoritative treatises and commentaries to elucidate each system’s fundamental tenets: the bifurcation of property law and the law of obligations in Romano-Germanic systems, and the central role of ownership in Islamic legal theory.
     Building on this doctrinal groundwork, a comparative approach identifies points of convergence and divergence. Specifically, the research investigates how each tradition conceptualizes the formation of ownership and how contractual or extra-contractual liabilities may affect proprietary interests.
‌ ∴ Results & Discussion ∴ ‌
The results highlight a clear divergence yet a subtle convergence between the Romano-Germanic and Islamic legal systems in terms of how they classify and link property law to the law of obligations. Several key findings emerge:
     First, in the Romano-Germanic legal tradition, real rights and personal rights have historically occupied two distinct spheres. Real rights are understood to be absolute, binding all third parties, and primarily govern the legal relationship between a person and a thing. Meanwhile, personal rights are relative, binding only specific parties (obligee and obligor) within the context of obligations. This conceptual demarcation has led to a structural separation of private law into property law (centered on real rights) and the law of obligations (governing personal rights). Within this framework, contracts and civil liability are classified as subbranches of the law of obligations. Property rights are transferred through a two-step process—one step creating the legal obligation to transfer, and another effecting the actual transfer of ownership (for instance, through delivery or registration in the land registry).
     The results confirm that, under classical interpretations, this two-tier structure ensures that the validity or invalidity of the obligation does not necessarily affect the validity of the subsequent property transfer. Consequently, if a contractual obligation is later deemed void, the conveyance of the property may still stand. This conceptual distinction is particularly evident in legal systems influenced by German civil law, where the abstract principle of conveyance—separating the “real” contract from the underlying obligation—has been deeply ingrained.
     Second, the Islamic legal tradition approaches the matter from a different angle. Here, many classical and contemporary scholars maintain that the primary subjects of private law revolve around contracts and quasi-contractual (extra-contractual) liabilities rather than distinct categories of property law versus obligations. In other words, Islamic legal discourse tends to embed property law questions—such as the acquisition, use, and transfer of ownership—within broader discussions of contractual and liability frameworks. This finding is particularly significant because it underscores the causal (substantive) system that often permeates Islamic jurisprudence: a transfer of ownership is typically understood as resulting directly from the validity of the underlying contract or liability. Ownership does not stand apart as an abstract concept waiting for a secondary act of transfer; rather, the transfer of ownership is seen as causally linked to the parties’ consent and the lawful conclusion of the contract or quasi-contractual relationship.
     Third, the research illustrates that despite these profound structural differences, modern developments in Romano-Germanic law have begun to bring obligations into closer alignment with property rights. As various legal systems adapt to the complexities of international commerce and increasingly sophisticated financial instruments, a purely abstract separation of real and personal rights sometimes proves too rigid. Notably, the concept of personal rights capable of generating proprietary effects has gained traction, signaling a convergence toward a more ownership-centric perspective. Some jurisdictions, for instance, have created legal mechanisms allowing a contractual agreement itself to pass ownership without the need for a separate, formal act of conveyance. This is a significant break from the strict classical model and reflects the rising influence of more “causal” legal doctrines, paralleling aspects of Islamic legal theory.
     Furthermore, the analysis confirms that Islamic law’s expansive definition of property, which includes both tangible and intangible components—ranging from physical assets to usufruct rights—positions ownership as a broad and nuanced concept. This broad concept of property, subdivided into categories such as specific property, fungible property, and various forms of usufruct, facilitates the notion that ownership transfers are embedded within and directly contingent upon the substance of contracts or quasi-contractual obligations.
     In sum, the overarching result is a recognition that the Romano-Germanic reliance on strict divisions is gradually yielding to more flexible, integrated approaches. The once well-demarcated boundary between real rights and personal rights has begun to blur, allowing for an expanded notion of property law—one that might, in due course, encompass many aspects of what were previously considered purely obligation-based relationships. This shift effectively draws nearer to the Islamic legal theory of ownership, where ownership transfer is central and intimately tied to the contract or liability itself.
‌ ∴ Conclusion ∴ ‌
Based on the distinction between real rights and personal rights—where real rights are absolute and enforceable against everyone, and personal rights are relative and enforceable only against the obligor—in the Romano-Germanic legal system, real rights form the foundation of property law, while personal rights constitute the foundation of the law of obligations. This distinction divides private law in the Romano-Germanic legal system into two opposing parts: property law and the law of obligations, with half devoted to property law and the other half to obligations.
     Under this division, the law of obligations addresses the creation, modification, and extinction of obligations, while property law focuses on the acquisition, transfer, and extinction of property rights. Influenced by long-standing traditions, where for centuries mere intent could not transfer real rights—a principle still upheld in some countries under this legal system—the dominant theory has been the general theory of obligations, under which contracts and civil liability are categorized as subfields. The transfer of real rights, i.e., property rights, is traditionally treated as comprising two distinct legal acts: the “real contract,” which creates an obligation, and the “transfer act,” executed through delivery for movable property or registration in the land registry for immovable property.
     Within this schema, the general understanding in the Romano-Germanic legal system is that contract law and civil liability fall under the law of obligations, and their relationship with property law—governed by an abstract system—remains largely independent. Thus, the obligation arising from a contract does not necessarily impact the validity of the transfer act. Even if the obligation to transfer is deemed void or voidable, the transfer itself may remain valid. German civil law exemplifies this clear separation between the law of obligations (which includes contracts and civil liability) and property law.
     Contrary to the prevalent view among prominent Islamic and Iranian legal scholars—who argue for the dominance of the division between property law and the law of obligations within the scope of contracts and quasi-contractual obligations (extra-contractual liabilities) in Islamic law—the findings presented here show that Islamic law primarily studies contracts and quasi-contractual obligations as the main categories for interpersonal relationships. Discussions of property law and the law of obligations appear as secondary considerations, with their relationship governed by a causal or substantive system, rather than a separate or purely abstract one.
     In Islamic jurisprudence, an expansive concept of property—initially divided into corporeal property and usufruct—further subdivides corporeal property into specific property, fungible property tied to specific items, and fungible property tied to obligations, and divides usufruct into object usufruct, human usufruct, and animal usufruct. All these fall under the category of property law. Coupled with an equally expansive concept of ownership—differentiating between absolute and partial ownership—this framework underscores that Islamic law’s prevailing theory linking contracts and quasi-contractual obligations to the secondary category of property law is the general theory of ownership, or more specifically, the theory of transfer of ownership.
     However, contemporary developments within the Romano-Germanic legal system suggest a move toward a more fluid relationship between real rights and personal rights. As property law expands and obligations increasingly appear as a subset of property law, the traditional distinctions between real rights and personal rights begin to dissolve. This evolving perspective implies that the distinction between real rights and personal rights may ultimately parallel the distinction between absolute and partial ownership in Islamic law—effectively recasting contract law and civil liability as integral aspects of property law. Consequently, the Romano-Germanic legal system appears to be inching toward a structure in which ownership becomes the core of civil law, echoing key elements of the Islamic legal approach and illustrating a striking convergence in theoretical underpinnings across these two historically distinct legal families.