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Report n°5 : "Water : symbolism and culture"

The culture of water and practical issues

Naturally, as we have seen, these precepts are echoed in everyday Muslim life and were the foundation for the Muslim culture of water. Power and religion, civilisation and water have forged strong links for many peoples over the course of history. Islam is no exception to these links. One hadith says: "Muslims have common share in three things: pasture, water and firewood (73)" and certain commentators suggest that in order to provide water for the followers of the new religion and avoid one person or one tribe having control over the precious resource, Muhammad encouraged Uthman (74) to buy the well of Ruma and establish it as waqf (or habous, which means for collective enjoyment or ownership for religious use and for the public benefit) for the perpetual use of the community and successive generations. Later, the two main branches of Islam -Sunni and Shia- adapted these general principles to local conditions and to the settlement of complex situations regarding the right to quench one's thirst, irrigation and the sale and transfer of water.

This document cannot claim to cover these questions in full, given the enormous body of theological and administrative references, and the accumulated case law of centuries regarding them. It will confine itself to indicating certain outlines for the non-Arab speaking reader.

Al-Qayrawani says: "Surplus water [from a spring] must not be withheld to prevent people from coming to the pasture. Those who have dug wells for their flocks may take precedence in their use. They will thus use them first; after which, all others shall also be allowed to use them. [But] he who has a well or spring on his own property may forbid the use of it to another, unless his neighbour's well becomes unusable and that neigh bour has crops which might then perish. In which case, he cannot refuse his neighbour the surplus water. But is the neighbour required to pay the price of the water? The question is disputed".

We are therefore faced with a particularly controversial issue since the sharia distinguishes between 3 types of water: running water (rivers, streams, etc.), water from a well made by the hand of man, and water from natural springs (sometimes improved by man). The nature of the water and its use have given rise, throughout history, to highly complex forms of legislation in which Qur'anic law and local custom and practice are often more or less closely associated.

The foggara water management system in Tunisia, for example, is similar to that of the Iranian qanat. The foggara makes it possible to create an oasis.The foggara is made by digging a deep tunnel in the earth of the foothills - i.e. at the foot of a fairly steep mountain range such as the Jebel Orbata.Water from the scarce rainfall in this virtually Saharan zone filters its way down into the foothills and the gallery acts as a drain. The foggara collector may be up to one or two kilometres in length. Families maintain the foggara and own the land it irrigates over a width of ten metres (reserved area) and of unlimited length as long as the gradient allows gravity to deliver water to the plot, as is shown by the work of Jean-Olivier Job and Jean Albergel on Tunisian oases.

In the case of the Muslim societies of black Africa, it is not easy to separate Islamic law and traditional law in the matter of water; in most cases, where traditional law does not openly conflict with the rules of sharia, it is incorporated by scholars into canon law. In Niger, for example, whoever controls the use of the water supply controls the neighbouring pastures, which is where the real wealth lies. In essence, water controls access to grazing land. In pastoral societies, access to vital water is never denied to passing men or herds, even if a limitation on transit time may be imposed.This reflects a clear application of an Islamic principle: the right to quench one's thirst (shirb), here extended to the herds that are practically the sole means of subsistence for whole communities. It is common practice among the Arabs, however, to prevent stray camels with no known owner from drinking from the community's water supply, according to many authorities including a very famous speech by the governor of Iraq, El Hajjaj Ibn Youssef (661-714).

These practices appear to conform to the Tradition that relates how the Amalik of Yemen, suffering from drought, went in search of water and fertile lands. On reaching a certain valley, they saw a bird which seemed to hang motionless in the sky and concluded that the creature was looking for water. Yet the place was known not to contain any water. A scoutwas sent out and discovered water - the well of Hagar and Ishmael. The Amalik asked permission to halt at the well. Hagar agreed, but not without stipulating: "Yes, but you have no rights over the water (75)". The Amalik agreed to this condition.

Even in the pre-Islamic period, itwas common practice for the caravans of goods crossing Arabia to pay for water as they paid for fodder, notes Maxime Rodinson (76).

In the Muslim tradition, however, the interests of the community take precedence over those of individuals or of small groups, as is generally the case in much Western legislation (77). The community here is the Umma. As used in the Qur'an and in the writings of law scholars, this term refers to the Muslim community but modern usage tends to use the term "nation" imported from the West.

Speaking of current practices, Dante Caponera says: "For Islam, water resources lie in the public domain... While it is impossible in theory to tax water as such, since it is God's gift, it is perfectly legitimate to levy a tax on water services or to tax the supply of water for various purposes, with authorisation.... Islam places no restriction on trading in water. As a public good, water cannot be transferred, but the transfer of its use is permissible. So if a user, large or small, holds a concession or licence, he may exchange water with or sell water to another user, large or small, if the government, which is the curator of public water, agrees... The religious precepts of Islam are in no way an obstacle to the appropriate management of every aspect of water as a resource (78)".

Addressing the question of water markets and water pricing in Iran -hence from the standpoint of Shia Islam- Kazem Sadr, of the faculty of Economics and Political Science of the Shahid Beheshti University in Teheran, states that Islamic jurisprudence (fiqh) and the consensus of the ulema, or legal scholars, teach that surface water as well as water from the aquifer are either public property or the property of the Imam, "the just and legitimate governor of the country" and that such water may therefore be exploited directly by the authorities or licensed to private operators. Sadr asserts that in the earliest days of the Muslim state, the construction of wells, dykes and other waterworks was paid for from the public coffers, Baitulmal. However, should someone invest in gaining access to water from a spring or river, that person acquires priority of access when it comes to making use of the water, but can in no way claim to possess the river or spring providing the water, which remains communal property. The rights of other users must be protected in all circumstances. In the ingenious system of qanats in Iran, for example, these underground canals that rely on gravity are the property of their builders, but the wells or springs supplying the water are not.

Shia Islam apparently adheres to Garrett Hardin's theory that to allow free access to common property leads remorselessly to its destruction (79).

This view is confirmed by Pierre Gentelle. Examining the issue of water in Iran's Lut desert, he writes: "According to the Prophet, the ownership of a spring, canal, well or qanat involves the ownership of a neighbouring extent of land, known as harem, an area in which no one else is allowed to dig" and concludes: "The Persians did not fail to observe, from the outset, that the Arabs had been nomads before following the teachings of Muhammad and that their customs still contained traces that were not of divine origin. In the case of water rights in particular, conquered agricultural societies had had their own complex rules of water management centuries before the Prophet appeared. One thing common to Muslim and non-believer alike: when water is shared, upstream "drinks" before downstream, according to fiqh, and the upstream water in a canal may not be higher than ankle-height". Proof that, in this highly sensitive area, no one can wipe clean the slate of the past and of history, and that a culture, a civilisation, is made up of multiple contributions and successive accretions which join and merge to form a new entity through which to express the ingenuity of the human spirit and its continual adaptation.

Sadr, however, points out that the transfer and distribution of water may be carried out by the private sector and adds: "If Islamic rules and values prevail in a market, we may expect the price set to be effective. This price will then serve as a reference for water supplied and sold by the public sector and it should cover all operating costs. In practice, no discrimination should be made when establishing the price. This proposition is in accordance with the rules of the Islamic legal system, and the management and distribution of water in Iran (80)".

Now to the Sunni version. Algeria is a Muslim country which suffers enormous problems of water supply. Minister for Water Abdelmalek Sellal admitted in an interview with newspaper El Watan (23 November 2004) that in the capital, "...only the east of the city receives a 24-hour water supply; the central and western areas do not receive a regular supply. At present, they do receive water every day, but only for a very limited number of hours... We have already begun work on renovating the network in Algiers. Most of the work has been completed, but the situation is not improving".

This situation has existed for decades and, sadly, is not confined to the city of Algiers, or to this Arab Muslim country alone. Looking more specifically at the Arab world, Jean-Paul Bord writes: "Medium term United Nations forecasts show that "countries likely to suffer water deficits or shortages in 2025 include a large proportion of states in the Arab world (with the exception of Mauritania, Sudan and Iraq). Globally, this part of the world suffers most from water problems. And even if the pattern of change will differ from one country to another, by 2025 almost all the countries in the Arab world will be affected by water shortages (81)."

What can be done? The Algerian minister, after pointing out that "water is a common good" announced the launch of an array of legal weapons such as: "Water will no longer be an abstract product which has no value.Under the new water code, it will have a value to society and a market value."

Like the Bible, the Qur'an places unrivalled importance on water. In Paradise, water is the reward given to good Muslims and exists there in profusion; in the Garden of Eden, springs and rivers abound.Water, vital to the observance of religious rites, is the gift of God and a divine blessing.Water is the primal element and opens the way to the sacred and to transcendence. Its scarcity or lack is due either to the wickedness of man or to his failure to manage the resource adequately, since God gave everything in due measure. The Qur'an therefore requires Muslims to use water with moderation and condemns wastage.Moreover, it encourages proper governance of this vital resource, more particularly because the Arab world is, for example, "an area dominated by desert and the search for water, except on its margins."

The various religious schools agree on many points regarding the management and exploitation of water for the benefit of the community while respecting the rights of whoever invests his labour, for example by tapping and channelling water and making it available.

(73) Ref.4. Note that the Syrian Minister for Water and Irrigation quoted this hadith against Turkey (without actually naming his target) in a statement reported in Cairo newspaper El Ahram (06 May 1997) regarding the difficult negotiations over allocation of water from the Euphrates. This was somewhat surprising since the government in power in Damascus claims allegiance to the Ba'ath party, a secular party founded by a Christian, Michel Aflak, and while the majority of citizens of the Turkish Republic are Muslims, the country has been profoundly secular since its founding in 1923 by Mustapha Kemal Ataturk.

(74) Third caliph, 644 to 656.

(75) Mahmoud Hussein, "Al-Sira. Le prophète de l'Islam raconté par ses compagnons", Grasset, Paris, 2005, p.91.

(76) Maxime Rodinson, "Islam et Capitalisme", Le Seuil, Paris, 1966

(77) In a dispute over water rights, the Supreme Court of Hawaii found in favour of the community, and against the owner, in a decision handed down in August 2000.

(78) Ref.4

(79) Garrett Hardin, "The tragedy of the commons", Science, no.162, 13 December 1968, p.1243-1248.

(80) Ref.4

(81) Jean-Paul Bord, "Le monde arabe: des espaces géographiques aux représentations cartographiques", doctoral thesis in geography, Université François Rabelais, Tours, December 1998.