Dissertation_Dr Faisal Almubarak

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3. THE CIRCULATION SPACE. The delineation of the minimum width of streets
was set according to the Prophet who ordered that streets, for public passage, should have
width no less than 7 cubits (3.23-3.50 m.). If such passageways were meant to serve for
cattle and sheep they should be 20 cubits. However, for footpaths, serving in between
dwellings for private passage, 4 cubits were required. Rulings concerning the use of
spaces adjacent to dwellings and other rights between neighbors on using private
passageways between them abound, which were grounded in fiqh. precepts. The jurists
also developed regulations relating to the height of streets; they used the height of a person
riding a camel to decide the minimum height of passageways. 34 For example, the eminent
jurist Sahnun, who lived in the third century (c. 854 A.D.), when asked about one incident
where a person who encroached on a public right of way and though the neighbors did not
object for the twenty year period following the construction, he ordered its demolition. Ibn
Kinanah (168H./802 A.D.), commenting on similar incident, condemned such an act of
encroachment and demanded legal punishment. Concerning one case where a person built
a mosque within his house and encroached on the street, the jurist Rabi'ah (c. 136H./813
A.D.) ruled that it was illegal. Malik, however, predicated his decision on whether such an
encroachment would harm street users. 35
4. ELIMINATION OF DHARAR (HARM). The principal of dharar (harm) is based
largely on the prevention of harm to other residents, including nuisance resulting from the
juxtaposition of incompatible land uses next to each other. Islamic jurists derived rules
from the Koran and the Prophet's Tradition, hadeeth, which ultimately determined the
location and functions of land uses in the traditional Muslim city. For example, uses that
created smoke, odor or presented a fire hazard were evaluated in terms of their impact on
residents and property values. Frequently, jurists invoked a verse in the Koran which
prohibits injury and harm among the residents 36 In one case, a neighbor who built an
uncovered sewer causing a bad smell to nearby users was ordered to cover it. In another
case, a man who used his residence as a tannery was ordered to remove the facility upon
the complaints of his neighbors. 37
Cases on ruins and structures that threatened collapse in the city were also subsumed
under dharar. The judge Ibn Rafi ordered one of his students, Ibn Arrami to walk in streets
and look for walls and other structures threatening to fall and demolish them. The Jurist
Malik did not allow one owner to wait till the next day to demolish a wall; he insisted to do
it immediately. The provision of light and air was also treated under dharar. Jurists,