Who owns water? The transformation of public property from Fiqh to contemporary Indonesian Muslim legal discourse

Abstract

This thesis examines the historical development of the commonality of water. It investigates how classical Muslim jurists conceptualized water as public property and how contemporary Indonesian Muslim organizations reconceptualized this notion within the framework of the modern nation-state, particularly regarding ownership and the determination of the public interest. This study employs a qualitative methodology using legal-comparative and historical approaches to examine Islamic discourses on the public ownership of water through a longue durée analysis. The primary sources include fiqh works from the Ḥanafī, Mālikī, Shāfi‘ī, and Ḥanbalī schools, as well as contemporary documents issued by the Indonesian Council of Ulama (MUI), Muhammadiyah, and Nahdlatul Ulama (NU). This thesis advances two main arguments. First, it finds that classical Islamic jurisprudence generally emphasizes the public ownership of water sources, although the degree of commonality varies according to the type of water source. Classical fiqh conceptualizes water as a common resource and the management of water resources is characterized by a community-centered model of ownership. Second, this study argues that the concept of the commonality of water as conceptualized by these three organizations has undergone two major transformations: a shift from public ownership to state ownership and a shift from local community interests to the national public interest. These transformations are primarily driven by the relationship between these organizations and the Indonesian nation-state, as well as the intellectual context in which their legal knowledge is produced. This study contributes to the literature on Islamic water law and to the broader debate on the relationship between Islamic law and the modern nation-state.