Food Sources: Earth, Water, and Air - Food Culture and Health in Pre-Modern Islamic Societies - page 48

to irrigation in the topics on zakāt, u ª r,
¶ ums and ¶ arā ¡ , iyā al-mawāt (the reviv-
ification of dead lands), arīm (“borders”),
mu ª tarakāt (things held in common), bay
(sale), makāsib (“earnings”), ∞ ab (usurpa-
tion), muzāraa (crop-sharing agreements)
and musāāt (agreements for the shar-
ing of fruit and other trees). The gen-
eral principles concerning water laws are
accepted by both Sunnīs and · īīs, but
there are differences in matters of detail
between them and between the different
law schools which, in view of the fact that
water laws are based on custom, is not
surprising.

Muslims in common and according to
the · īī fuahā , to the imām. Their water
may be used by anyone for irrigation and
power provided its use in this way does
not harm the community, and anyone
may divert water from the great rivers by
means of a canal, unless such diversion is
prejudicial to interests already acquired.
In the case of the lesser rivers, the water
of which is sufficient to irrigate the land
along its banks without the construction
of dams, anyone may lead off water in a
canal to irrigate other land, provided such
action is not prejudicial to existing inter-
ests. If the water of a river cannot be used
for irrigation without the construction of
dams, lands higher up have, according
to most authorities, Sunnī and · īī, a
prior right to those situated lower down.
The anafīs, on the contrary, hold that
lands situated lower down the river have
a prior right over those situated higher
up, while the Mālikīs lay down that land
situated higher up has the prior right of
irrigation until the water reaches as high
as the ankles, but if the land lower down
has been developed earlier and there is a
danger of its crops being destroyed, it has
a prior right over land higher upstream.
These various views are reflected in exist-
ing practice. As to the amount of water
that may be drawn off, the Prophet is
said to have allowed a level as high as
the ankle, and this tradition is widely
followed. Al-Māwardī, whose exposition
is concerned with the practice of water
management rather than the theory, holds
that the amount varies with the nature of
the land, the kind crop, the time of sow-
ing, the season and whether the flow of
the river is permanent or intermittent.
The right to use water flowing in arti-
ficial beds, such as the water of a canal
dug by the people of a village, belongs
exclusively to the owners of the bed of the
canal, and others may not use the water

(i) The right of thirst ( ª afa)
By virtue of the adī º which states that
Muslims are partners in water, fire, and
grass, the use of water is considered as
common ( mubā ) to all men, but it may be
appropriated by “occupation” ( irāz ), e.g.
by collecting rain water in a vessel placed
outdoors to that end. It cannot, however,
be “occupied” until it has ceased to run,
i.e. until it is placed in a vessel or water-
tight well or basin. Water in rivers, ānāt s,
wells and basins which are not water-
tight is, therefore, considered to be mubā ,
even if the rivers, anāt s, wells and basins
should be private property. Everyone is
entitled to use such water for drinking
purposes for himself and for his animals,
provided that the animals do not exhaust
the whole supply. The sale of the water
of privately-owned rivers, anāt s, wells and
basins (for drinking purposes) is permitted
by some jurists, though all appear to con-
sider it better to give such water than to
sell it. The right of all men to use water
is confined to drinking purposes and does
not extend to its use for irrigation.

(ii) The right to use irrigation water
According to the Sunnī fuahā , the
water of the great rivers belongs to the