unlawful ownership

Money creation (money issuance) is one of the most important economic phenomena that leaves many effects on the economy. In order to grant loans to bank customers, money or credit based on which banks create credit from “nothing” in the account of the loan applicant is created. Although this phenomenon has also supporters, but this same group also admits and acknowledges the destructive economic effects of money creation. Its most important effects include economic instability, unbridled inflation, discrimination and violation of justice. This issue can be considered as a matter of concern affecting the Islamic society because there are few people who have not applied for a loan from banks. This phenomenon from a jurisprudential point of view can be considered as an unlawful ownership (in Arabic: اکل المال بالباطل, unjust enrichment); because, the bank acquires property (tries to make money) instead of “nothing”. On the other hand, the prohibition of the abuse of the right, which is based on the evidence of the rule of prohibition of detriment (in Arabic: لا ضرر, principle of harm), implies the prohibition of the creation of money. Banks have the right to loan their customers money and this right is considered by law and Sharia (Arabic: شریعه, Romanized: sharīʿa, religious law) for them, but they have made this right an excuse for their profiteering (mercantilism, trade) and causing harm (damnification) to the whole society, which is ruled to illegitimacy on the basis of the evidence of prohibiting the abuse of the right and principle of harm. It should be finally noted that the criterion stated in some ḥadīth (pl. aḥādīth, literally means talk or discourse, narrations) for the unlawfulness of usury, which is the earning of profit without anything in return (equivalent), is equally true about the creation of money, and it is possible to generalize the prohibition of usury by conclusive rectification of the effective cause (Arabic: تنقیح المناط).

In the Iranian legal system both terms of obtaining illegal property and illegal obtaining of the property are used. Since the adoption of the Act on Aggravating the Punishment of the Perpetrators of Bribery, Embezzlement and Fraud (hereinafter AAPPBEF) in 1988, utilization of the first phrase has become more common. This is due to the fact that the Legislator, in particular in article 2 of the AAPPBEF, has employed the phrase "illegitimate method of obtaining". Undoubtedly, it refers to illegal obtaining of the property. Presumably, this means that the property is legitimate, but the way through which it is obtained is illegitimate. What is the criterion for illegitimacy? Does it mean that if the way to obtain a property is legitimate, the act would not be regarded as a crime? Does it mean that if article 2 refers to the way of obtaining the property, it is possible to obtain an illegitimate property by means of a legal way and the act is not of a criminal nature? It seems that the Legislator considers the case from two viewpoints. First, the illegitimate property may be obtained through a legitimate or an illegitimate way. Second, the legitimate property may be obtained legitimately or illegitimately. Under legal systems of Germany, UK and Us, the aforementioned crimes do not exist and the related acts are criminalized as theft or fraud. In Islamic law, the unlawful ownership has been discussed. Although there is a difference in describing the act between Islamic law and western law, substantially both of them acknowledge the prohibition of obtaining property through illegitimate and illegal means. The present paper, using an analytical method, considers the different aspects of the case.