Ownership and use of water in al-Andalus
«You have asked me, Prince of the Faithful, what steps should be taken with the lands conquered by force of arms or through treaties, where there are large areas with no crops or buildings. These tracts of barren lands, if they are not fay (lands abandoned by the enemy without violence) belonging to the neighbouring village, or are not common land or burial grounds, or land for gathering firewood or for pasturing sheep and cattle, and which belong to nobody are called “dead lands” and become the property of those who bring life to them, either as a whole or in part. You may grant them to whom you wish, rent them or do as you please with them.»
Abu Yusuf (m. 798), Kitab al-jaray, (Paris, 1921, page 96 of the French translation).
In all religions water, as well as being a natural resource which frequently determines the location of a territory, is a mythical, sacred element, full of symbolism: this is the case with baptism or Christ walking on the water in Christianity, of Moses saved from the water or crossing the river Jordan in Judaism, or the mandatory ablutions before prayer in Islam. All of this makes legislation or the applying of legal regulations for its use, enjoyment, conservation or ownership a difficult undertaking.
With reference to al-Andalus, we have a large body of legislation, fetuas (legal consultations), legal rulings and by-laws about the use and ownership of water. To quote but a few of the legal sources which refer to this, we will mention the Al-nazar fi-l-hisba by Ibn ‘Abd Ra’uf (10th century), the Risala by Ibn ‘Abdun (11th century), Kitab fi adab al-hisba by al-Shaqati (13th century) or Muntajab by Ibn Abi Zamanin (10th century). We must highlight that in al-Andalus there were at least three judiciaries dedicated to water: the «qadi al-miyah» («judge of water»), in charge of resolving relevant litigation; the «sahib al-saqiya» («lord of the irrigation or zabacequia»), who oversaw this kind of canal; and the alamín, an auxiliary civil servant whose remit was, among others, irrigation turns.
In principle, and as a general rule, al-Andalus legally recognised the right of anyone (Muslim or otherwise) to drink water to quench their thirst and water their animals. From a legal point of view, water was considered to be of three kinds: public (or res nullius), privately owned or of mixed ownership. Public waters were the large masses such as the sea, large rivers, lakes, snow and the ice on the mountains. These were common to all Muslims and could never be owned, only used. The second category, privately owned waters, were those belonging to a community of irrigators or a particular individual, and multiple ownership was frequent where co-owners regulated its use. When ownership was as private property, by one individual, they were free to use them as they wished, but were not allowed to destroy a well or a spring, nor did they lose their property rights for allowing usufruct for irrigation by others.
In addition to these three categories were the so called «dead lands», unfarmed and ownerless which were also, under Islamic law, naturally devoid of water. They belonged to the Muslim community and the Caliph or Emir could give them out for use like with other land. Regenerating these dead lands meant ownership for whoever regenerated them according to a hadiz (saying by the Prophet) which states the following: «He who regenerates land makes it his own».
According to Islamic law, if the aim of regenerating land was for farming and planting, then three actions were necessary: firstly, fencing off the plot to set boundaries and separate it from others; secondly, supplying water if the land is dry or drainage if it is swampy; and thirdly, levelling out the land and preparing it, tilling etc,,, as we can see from the illustration, taken from the book Kitabal-filaha, by Abu Uthman Ibn Luyun, 13-14th century.
If someone occupied a dead land and supplied water to it but did not farm it, he would be owner of the water and the land watered by it, as well as the land the water crossed to reach it, but the rest of the land would not be his property. We must also add that regenerated lands were subject to established taxes,
Dead lands near settlements could not be regenerated –save government permission- only those which were in arid, desert lands or steppes. If an individual were to abandon the land he had regenerated and the improvements he had made were to disappear then he would lose his property right, and if another person then turned up and regenerated the land, they were entitled to it, if and when no ownership rights existed, in which case no one could regenerate the land even if it was abandoned.
Likewise, grazing was not considered to be land regeneration, even if the shepherd dug a well for his flock, because use of water was only a priority until their needs were met and the rest of the water was for public use, according to the hadiz «The remaining water must not be denied to people because this would mean the end of grazing».
In the Medieval period, the spread of irrigation in al-Andalus contributed, without the shadow of a doubt, to a clear improvement in the well-being of andalusí society who benefitted from the increase in and variety of agricultural produce. This development in agriculture was based on two important principles: sustainability and developing biodiversity.
The urge to preserve and keep water can be seen in the common digging of wells by the andalusis. Many houses —archaeological evidence— boasted the infrastructure needed to channel, move and store rainwater or water from other sources (pipes, ditches, basins, domestic water tanks, ceramic pots, etc). In addition, the State used economic and human resources to finance the building –or maintenance- of the water infrastructures, particularly those for supplying and distributing water to urban centres: transport, the installation of fountains, public washbasins and baths, the extension and improvement of the drainage system, or the construction of large deposits.
As for stimulating biodiversity, al-Andalus was an example of the transformation of an agricultural landscape based on an increasing diversity. The incorporation of Oriental and North African species is a fact recorded in the andalusi books of agriculture. As an example, we will mention some: hemp, the bitter orange tree, the lemon tree, the citron, saffron, cucumber, tiger nut, liquorice, henna, mulberries, bananas, rice, sugar cane, aubergines, spinach and ginger.
Juan Martos Quesada, Arabist, from 1993 until his retirement in 2013 he was a professor and researcher in the Departamento de Estudios Árabes e Islámicos (Department of Arab and Islamic Studies) at the Universidad Complutense de Madrid (Spain).
Hernández A. 2023. El agua en los mercados andalusíes, en Al-Andalus y la Historia, marzo.
Martos Quesada J. 2003. Legislación del agua en la España musulmana en Colegio de Ingenieros de Caminos, Canales y Puertos Ed. Ingeniería Hispanomusulmana, Fundación Ingeniería y Sociedad, Madrid, pp. 179-194.
Vidal Castro F. 1995. El agua en el derecho islámico. Introducción a sus orígenes, propiedad y uso en El agua en la agricultura de Al-Andalus, Lunwerg, pp. 99-118.
Wilkinson JC. 1990. Muslim land and water law, Journal of Islamic Studies, 1: 54-72.