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American Journal of  
Society and Law ( AJSL)

The Concept and Scope of  Public Property in Afghanistan’s Legal System
Rohullah Samim1*

Volume 4 Issue 1, Year 2025
ISSN: 2835-3277 (Online)

DOI: https://doi.org/10.54536/ajsl.v4i1.4505
https://journals.e-palli.com/home/index.php/ajsl

Article Information ABSTRACT

Received: February 02, 2025

Accepted: March 08, 2025

Published: April 21, 2025

Public property is a type of  property consisting of  a group of  assets and resources that are 
owned by the state and society for the common benefit of  the public. These properties, 
or “assets”, include roads, forests, infrastructure, parks, pastures, water, natural resources, 
and all other properties open for public use and benefit. The objective of  this study is 
to introduce the types of  public properties according to the law of  Afghanistan. The 
study adopts a descriptive-analytical research method and uses library data collection. The 
key findings include pastures, roads, bridges, parks, and recreational areas, and wetlands, 
trees, and forests, water resources, public buildings and estates, infrastructure facilities, and 
transportation and telecommunications, which are all forms of  public property, Each of  
them has a historical background and holds particular significance.

Keywords
Categories of  Public Property, 
Pastures, Property, Public Property, 
Water Resources

1 Faculty of  Law, Ghalib University, Kabul, Afghanistan 
* Corresponding author’s e-mail: samim@ghalib.edu.af

INTRODUCTION
Public property is property that is owned by the 
community and the state, and available to the public. These 
assets form the basis for the sustainable development of  
societies and are considered strategic resources to meet 
social, economic, and cultural needs. Public property 
occupies a special position in the Afghanistan legal 
context; this is especially the case from the perspective 
of  public law, given its wide impact on public welfare, in 
particular, it is the basis of  development and prosperity. 
Different types of  these properties, such as roads, 
bridges, forests, infrastructure, water resources, and 
natural resources, play a major role in the development 
and growth of  public infrastructure. Thus, they have a 
special place in the current legal system of  the country. 
Their status as common property, available for society’s 
needs, makes their contribution to the realization of  
social rights and protection of  the public interest a major 
one. Under Afghanistan law, the defense of  these assets 
is perceived not just as a tool to ensure the sufficiency 
of  assets essential for a worldly life but also as a mode 
of  sustenance to social order and economic viability. 
This issue, particularly in terms of  attaining sustainable 
development goals and enhancing some janata’s quality 
of  life, is regarded as a high-priority agenda led by the 
government.

LITERATURE REVIEW
The concept of  public property has been an object 
of  in-depth academic scrutiny vis-à-vis Afghanistan 
law. In his work Individuals and Property, Safaei (2016) 
further emphasizes the importance of  public assets in 
the Afghanistan legal system, discussing extensively in 
what they are and their implications for legal frameworks 
behind their management. Safaei notes that they serve as 

the primary line of  defense in keeping private property 
free of  private interests, and highlights that the response 
of  people should be in service of  public good and 
therefore, public property. Likewise, Nezamuddin (2017) 
in The Commentary on the Civil Code of  Afghanistan 
provides an in-depth description of  the legal nature of  
public property in Afghanistan. In his examination of  
the different classifications of  public property under 
Afghanistan law, Nezamuddin posits that such assets 
are critical in serving the public interest and fulfilling 
the functional capacities of  the state’s socioeconomic 
system. His insight on the legal arrangements required 
for the protection and regulation of  public property in 
Afghanistan offers an understanding of  its significance. 
Moreover, Afghanistan is facing challenges to protect the 
public property. Abdul Hussain Rasouli in his book The 
Rights of  Property has introduced the advantages116 
and disadvantages of  the public property protection in 
the Afghanistan legal system. Treatise based on Rasouli’s 
work assesses the effectiveness of  the existing framework 
for public assets and makes recommendations on steps 
that could be taken in changing the legal structure to 
ensure an equitable distribution and preservation. His 
argument is that safeguarding public property is more 
than simply protecting physical assets it is preserving the 
integrity of  the public trust.

The Concept of  Property and Public Property 
To enter the main and fundamental discussions, it is 
first necessary to define the concept of  property, and 
subsequently, the concept of  public property. Each of  
these concepts is addressed separately below. 

The Concept of  Property 
Property is anything of  value or a quality that is owned by 



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an individual. This definition encompasses both tangible 
assets (e.g., real estate, vehicles, and cash) and intangible 
assets (e.g., copyrights, intellectual property rights, 
and legal entitlements). Property, in the legal sense, is 
anything that can be owned, bought, sold, transferred, or 
possessed. Be they material commodities or immaterial 
rights or privileges (Sprankling, 2014). In other words, 
property refers to an object or economic right that an 
individual can use or possess (Wyman, 2017). From a legal 
standpoint, property includes the rights and responsibilities 
associated with its owner or holder, and in law, property 
can refer to things or rights that belong to individuals and 
are transferable (Underkuffler, 2005). Since property can 
be interpreted in different ways depending on the legal 
system, there may be more specific definitions in each 
jurisdiction (Cole & Grossman, 2002). in the Afghanistan 
legal system the term property refers to wealth, assets, 
belongings, possessions, estates, goods, and anything 
owned by an individual. Linguistically, is derived from the 
past tense of, meaning “to desire,” and in Persian, it is also 
referred to as khwāstah (desired possession). In legal and 
economic contexts, is defined as anything with exchange 
value, economic worth, and the ability to be appraised 
in monetary terms (Langroudi, 2007). The Civil Code 
of  Afghanistan defines property as: “Property consists 
of  tangible assets or rights that hold material value in 
the eyes of  people.” Various scholars and jurists have 
offered different definitions of  property. For instance, 
Article 126 of  Al-Majallah al-Aḥkām al-‘Adliyyah defines 
property as: “Anything that human nature inclines toward 
and that can be stored for future need, whether movable 
or immovable.” Some Islamic jurists define property 
as follows: “Property is an abstract concept derived by 
rational beings from external objects; it is essential to 
human life and fulfills both basic and advanced needs” 
(al-Ghita, 2001). Legal scholars also define property in a 
similar manner: “Property is anything that is usable, holds 
economic exchange value, and is tradable.” (Safaee, 2003). 
A homeowner’s ownership right over a house is legally 
recognized as property. The relationship between the 
right and the house is so intertwined that laypeople often 
equate the house itself  with property. However, when 
the house is sold, the house itself  remains unchanged in 
location and structure; what is actually transferred is the 
legal right of  ownership, which entails authority, privilege, 
and control over the house in exchange for a sum of  
money. Once the transaction is complete, the former 
owner must vacate the property and no longer holds any 
legal right to it, having transferred that right to another 
party (Rasouli, 2017).

The Concept of  Public Property 
Public property is what the government owns and 
has everything going to the public. Such resources 
include parks, buildings, other urban shape and natural 
services provided for the use of  the community (Cole 
& Grossman, 2002). While private property is under 
individual control, public property is managed by 

public laws and regulations that ensure it works for the 
common good (Wyman, 2017). Public property can 
provide public services like libraries and schools or 
recreational green spaces or environmental conservation. 
Public goods are subject to democratic processes that 
govern their management and allocation and their role 
in promoting the common good (Underkuffler, 2005). 
This kind of  property is critical for providing social 
order and equitable resource access; this property helps 
all constituents of  society without regard to social or 
financial standing (Bromley, 1991). In the Afghanistan 
legal system Public property refers to assets that do not 
belong to any specific individual owner (Qasemzadeh, 
2011). According to this definition, any property without 
a designated owner falls under the category of  public or 
communal property. The term public signifies common 
ownership, general accessibility, and collective use, as 
opposed to private ownership (Amid, 2010). However, 
properties with unknown owners or lost items (luqṭah) 
that originally had a specific owner, even if  their owner 
remains unidentified, are not considered public property. 
It is important to note that the definition provided above 
is not entirely comprehensive, as it merely states that 
public property lacks a private owner without explicitly 
addressing its function for public benefit and welfare. A 
more precise definition would be that public property 
consists of  assets designated for the benefit and welfare 
of  all members of  society (Langroudi, 2007). These 
assets may be: 

1. Directly accessible to the public, such as roads, public 
squares, bridges, and other public infrastructures. 

2. Accessible under certain conditions, where usage is 
subject to specific regulations and eligibility criteria, such 
as public schools, state orphanages, and government 
universities. Several alternative definitions of  public 
property have also been proposed: 
“Public property refers to assets that belong to the public or 
remain unclaimed.” (Katouzian, 1998). According to this 
definition, public property comprises assets collectively 
owned by the people, which neither individuals nor legal 
entities can appropriate as private property. Examples 
include roads, bridges, mosques, parks, pastures, and 
other shared resources. Public property is closely 
associated with the concept of  common property, which 
refers to: “Assets collectively owned by a nation or the 
residents of  a region, such as a city, and utilized for public 
purposes, including parks, public squares, endowments, 
streets, and highways” (Jafari, 2007). Based on this 
definition, no individual may claim ownership over public 
streets, open-ended alleys, bridges, caravanserais, public 
reservoirs, historical schools, public squares, or wells 
used by the general public. The prohibition of  private 
ownership over such assets stems from the fact that their 
intended function and purpose inherently conflict with 
private appropriation. Another comprehensive definition 
states: “Public property consists of  assets owned by the 
state or public legal entities, designated for public welfare. 
These assets may be directly available for public use such 



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as roads, bridges, museums, squares, and parks or may be 
subject to specific usage criteria, such as public universities, 
government schools, and military buildings, which are 
accessible only to individuals meeting certain conditions.” 
(Rasouli, 2017). Afghanistan Civil Law provides a legal 
definition of  public property: “Public property refers to 
assets that do not belong to individuals and are designated 
for the public interest and welfare.” Additionally, under 
the Civil Code of  Afghanistan (CMA), public property 
may be either movable or immovable, provided that it is 
designated for public benefit and welfare. Based on the 
definitions provided, the author of  this study proposes 
the following definition: “Public property consists of  
assets collectively owned by society, managed by public 
legal entities, and allocated for the common good and 
public welfare.”

Categories of  Public Property in Afghanistan Law 
As previously discussed, public property refers to assets 
and resources owned by society or the state, designated 
for public use and accessibility. These assets typically 
include land, parks, roads, natural resources (such as 
water, forests, and minerals), and public facilities (such 
as schools, hospitals, and cultural centers). The primary 
characteristics of  public property are as follows: 

1. Public Accessibility – These assets must be available 
for public use. 

2. Absence of  Private Ownership – Public property 
does not belong to any individual or specific group; rather, 
it is owned by the government or public institutions. 

3. Sustainable Use – The management and utilization of  
these assets should be conducted in a way that preserves 
them for future generations. 
The protection and regulation of  public property hold 
significant importance in Afghanistan’s legal system. 
However, public property is not consolidated under a 
single legislative document but rather addressed across 
various legal texts. The key categories of  public property 
under Afghanistan law include: 

Public Buildings and Estates 
Public buildings and estates are critical components 
of  the infrastructure of  cities and rural settlements, 
providing venues for governance, education, healthcare 
and cultural activities. Inactivity is sustained by the real 
estate maintenance law, policy, rules, and regulations for 
public ownership. Public buildings and estates: Public 
buildings and estates are usually owned by a government 
or public institution. The law regarding their ownership 
is based on the public trust doctrine, which requires 
that such properties be held for the public benefit. The 
public trust doctrine allows public buildings and land to 
be used in a way that meets the public good; according to 
Sax (1970), the state must retain the title to certain lands 
for the public good, and no one can take it away as it 
serves the public good (Sax, 1970). Public buildings and 
estates are among the primary forms of  public property 
under Afghanistan law. The Afghanistan Penal Code 

classifies public buildings and estates as public property 
and criminalizes any act that results in their destruction 
or damage. Given that these assets are allocated for public 
benefit, their destruction is considered a criminal offense 
under Afghanistan criminal law, and perpetrators are 
subject to legal penalties. (Afghanistan Penal Code, 2017).

Infrastructure Facilities 
Infrastructure facilities are another category of  public 
property recognized in Afghanistan law. Any destruction or 
intentional damage to infrastructure is considered a criminal 
act, and those responsible are subject to prosecution and 
punishment. (Afghanistan Penal Code, 2017).

Communications and Telecommunications 
Communications and telecommunications are 
fundamental to modern society, enabling the exchange 
of  information across vast distances and supporting 
economic, social, and cultural activities. The legal and 
regulatory frameworks governing these sectors are 
complex, involving a mix of  national and international 
laws, policies, and standards. Below is an overview of  
key issues, legal principles, and challenges in the field 
of  communications and telecommunications, supported 
by reputable sources. The telecommunications sector 
is heavily regulated to ensure fair competition, protect 
consumer rights, and promote universal access to 
services. In many jurisdictions, regulatory bodies oversee 
the licensing, pricing, and quality of  telecommunications 
services. For example, in the United States, the Federal 
Communications Commission (FCC) is responsible for 
regulating interstate and international communications 
(Crandall & Singer, 2020). Telecommunications refers to 
the transmission of  any type of  message or information 
through electrical, magnetic, electromagnetic, optical, or 
related energy forms (Telecommunications Regulation 
Law, 2019). Similarly, telecommunication services 
are defined as services provided to subscribers via 
telecommunication and internet networks for a fee 
Article 3, Clause 23. Given that telecommunication 
infrastructure is established by the government to meet 
public needs, these systems are considered state property 
made accessible to the public (Telecommunications 
Regulation Law, 2019).

Trees, Pastures, Roads, Parks, and Recreational Areas 
A prominent category of  public property in Afghanistan 
law particularly within the Penal Code includes trees, 
pastures, roads, parks, and recreational areas. Any form 
of  encroachment or damage to these properties is legally 
considered an offense, and violators are subject to 
criminal penalties. (Afghanistan Penal Code, 2017).

Pastures 
Pastures are legally recognized as public property in 
Afghanistan law. However, pastures have historically been 
a source of  conflict among different ethnic groups in 
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and settled residents of  central Afghanistan. (Abdullah, 
2018). This classification of  public property in Afghanistan 
demonstrates its legal significance and the various forms 
it takes within the country’s legal framework. If  you need 
additional details or further references, let me know!

Historical and Cultural Heritage 
A historical artifact refers to a building or a movable 
object that belongs to a particular society or individual 
and, due to its historical or artistic value, is placed under 
legal protection through an administrative classification. 
According to the Encyclopedia Britannica, the term 
“antique” is defined as: “A term commonly used to 
describe objects of  artistic and historical significance that 
are at least one hundred years old.” Thus, cultural property 
generally consists of  movable objects, specifically 
historical artifacts (antiquities) that hold historical or 
informational value and are at least one hundred years 
old, even if  they lack substantial financial worth or have 
deteriorated from their original condition. Examples 
include items unearthed through excavations or artifacts 
commonly referred to as “underground relics” (Nejad & 
Narouei, 2011). The Afghanistan Penal Code explicitly 
addresses historical and cultural artifacts and the offenses 
committed against them in Article 731, which states: 

(1) Any offense committed against historical or cultural 
artifacts as outlined in this chapter shall be recognized as 
a crime, and the offender shall be punished according to 
the prescribed legal penalties. 

(2) For the purposes of  this chapter, historical or 
cultural artifacts regardless of  their origin or ownership 
include the following: 

1. Movable or immovable property of  special cultural 
significance to all nations, including architectural, artistic, 
or historical monuments (both religious and non-
religious), archaeological sites, historically or artistically 
significant buildings, works of  art, manuscripts, books, 
and other artistic or historical objects, as well as scientific 
collections, archives, and reproductions of  these items. 

2. Buildings specifically intended to protect or display 
cultural assets defined in Clause 1, such as museums, 
major libraries, and archival centers. Additionally, movable 
cultural property housed in these facilities or displaced 
due to armed conflict for preservation purposes is also 
included. 

3. Movable or immovable historical and cultural artifacts 
discovered within the country or buried underground 
are considered state property. (Afghanistan Penal Code, 
2017). This legal framework underscores the national 
importance of  cultural and historical artifacts and the 
state’s responsibility in their protection and preservation. 
Let me know if  you need additional clarifications!

Forests 
Forests are often considered public property, meaning 
their ownership belongs to the government or public 
institutions, and their use should benefit the public. This 
concept is rooted in the public trust doctrine, which 

holds that the government acts as a trustee of  natural 
resources to protect public interests (Sax, 1970). In many 
countries, national laws have vested forest ownership in 
the government and restricted their private use (FAO, 
2020). The Forestry Law of  Afghanistan defines a forest 
in Article 4, Clause 12 as: “An area exceeding 2.5 jeribs 
(0.5 hectares) of  land covered with at least 10% tree 
canopy, which is not designated for agricultural or non-
forestry purposes.” According to Afghanistan’s Forestry 
Law, forests are categorized into the following types: 

Community Forests 
“Forests officially designated and managed by local 
communities for the purpose of  sustainable resource 
management for public benefit. The rights to use these 
forests for timber, firewood, non-timber products, 
livestock grazing, and conservation must be specified in 
the law.” (Forestry Law, 2012).

Urban Forests 
“Forests located on state-owned land within urban areas, 
planted or cultivated by the municipality, and used for 
forestry resources, wildlife habitat, water conservation, 
recreation, and environmental education” (Forestry Law, 
2012).

Private Forests 
“Forests that grow on privately owned or leased land in 
accordance with property laws.” (Forestry Law, 2012).

State Forests 
“All other forests that are classified as state property, 
located on government-owned land, and not claimed 
by local communities. These include national parks and 
forest reserves” (Forestry Law, 2012).
According to Afghanistan forestry regulations, forest 
resources are the property of  the state: “The state, as 
the general trustee of  the people of  the Islamic Republic 
of  Afghanistan, holds forests under its administration, 
except for private forest ownership, which is an 
exception” (Forestry Law, 2012). The Afghanistan Penal 
Code (Articles 820–835) does not explicitly refer to public 
forests but instead focuses on state forests. For example, 
Article 820 of  the Penal Code states: 
“Anyone who usurps, buys, or sells state forest land 
shall, in addition to the restitution of  the land and 
compensation for damages, be subject to fines for land 
seizure as stipulated in this law.” Although the Penal Code 
does not explicitly differentiate between public forests 
and state forests, the use of  the general term “forest” in 
Articles 823, 827, and 828, as well as Clause (1) of  Article 
829, suggests an implicit recognition of  public forests. 
However, in most cases, the law specifically mentions 
state forests when outlining criminal provisions. Given 
this inconsistency, the author argues that the Afghanistan 
Penal Code should have included specific legal provisions 
regarding public and private forests to ensure clearer legal 
distinctions and protections.



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Water Resources 
Water resources, including rivers, lakes, groundwater, 
and oceans, are typically considered public property, 
owned and managed by the state or public institutions. 
This concept is rooted in the public trust doctrine, which 
holds that certain natural resources, including water, must 
be preserved for public use and benefit (Sax, 1970). In 
many countries, water resources are constitutionally or 
statutorily recognized as public property, with private 
ownership or use strictly regulated (FAO, 2020). Regarding 
ownership of  water resources, the Afghanistan Water 
Law explicitly states: “Water is public property, and the 
state is responsible for its protection and management.” 
According to Article 2 of  the Water Law (2009), water 
resources include: “Surface and groundwater sources 
(rivers, streams, canals, reservoirs, lakes, glaciers, dams, 
springs, karez systems, and wells) where water regularly 
or intermittently flows, accumulates, or is stored.” Water 
resources are classified as public property, designated for 
public benefit and legally protected against destruction, 
obstruction, or alteration. Any such actions are considered 
an encroachment on public property, and offenders are 
subject to legal penalties (Water Law, 2012).

Waqf  (Endowment) Lands 
Waqf  land refers to land designated for charitable 
purposes, either for the general public or specific groups 
(Abdullah, 2018) According to Article 3, Clause 15 of  
the Land Management Law of  Afghanistan, waqf  lands 
are public property allocated for charitable activities, 
regardless of  whether they serve the entire public or a 
specific social group (Land Management Law, 2017).

Unclaimed Lands 
There are also unclaimed lands, or lands that fall under 
nobody’s ownership or domain, that do not belong to 
individuals, groups, or specific governments. Such lands 
could either not have documents of  official ownership, 
or could have opted to abandon their ownership for not 
occupying and making use of  them. In international 
law, this is also called terra nullius, concerning those 
territories that no country has claimed as its own 
(Shaikh & Khan, 2024). In some countries, governments 
manage these lands as public property and utilize them 
for public purposes such as infrastructure projects, 
agriculture, or resettlement (Public Lands Foundation, 
2020). Conversely, in certain regions, these lands become 
subjects of  legal and social disputes due to the absence of  
defined ownership (Smith & Travis, 2010).
In the field of  environmental protection and natural 
resources, unclaimed lands can become significant 
natural habitats that are either preserved or exposed to 
illegal occupation and degradation (Kasimbazi, 2018). 
The term “mawat” literally means “dead,” “lifeless,” or 
“uninhabited.” According to Article 127 of  AlMajallah 
al-Aḥkām al-‘Adliyyah, mawat land refers to: “Lands that 
do not belong to any individual, are not designated as 
pastures, firewood collection sites, or village commons, 

and are located far from populated areas.” The 
Afghanistan Civil Code distinguishes between: 

1. Unclaimed agricultural land (la-mālik agricultural 
land), which cannot be privately claimed. 

2. Unclaimed non-agricultural land (mawat), which 
may be acquired only with the approval of  the President. 
The Land Management Law (2017) categorizes land 
into: Agricultural land, Non-agricultural land, Waqf  land, 
Common land, State land, Private land, Public land and 
Pastureland (Abdullah, 2018).

CONCLUSION 
The study examined public property in Afghan law in 
terms of  its classifications from a legal and jurisprudential 
perspective, including the Afghanistan Penal Code, 
Water Law, Land Management Law, and Forestry Law, 
among others. The arguments set forth will establish 
that public property is a significant public service to 
enhance equality of  access and safeguard the natural 
resources of  Afghanistan for the benefit of  the public. 
Such assets, comprising roads, bridges, water resources, 
forests, and various other public infrastructures, are vital 
to promoting social justice and sustainable development 
in the country. Yet literature and resources suggest there 
are considerable obstacles to securing and equitably 
using these resources. Afghanistan lawmakers, therefore, 
must review and amend existing legal frameworks 
related to property rights and resource management to 
improve the protection and management of  state assets. 
Additionally, drawing from international best practices in 
public property management can help provide practical 
and effective solutions. My main suggestions are as 
follows:

Legislative Review and Amendments 
Afghanistan legislative bodies should review and amend 
existing legal provisions to ensure a clearer and more 
precise classification of  public property within the 
relevant legislative documents. 

Expert Consultation in Drafting Laws 
The development of  laws related to public property 
should involve specialists, legal experts, and scholars from 
relevant fields. Given the technical nature of  these laws, 
the input of  legal professionals and subject-matter experts 
is essential to avoid ambiguities and inconsistencies in 
legislation. 

Encouraging Research on Legal Protection of  
Public Property 
Legal scholars and researchers should explore various 
aspects of  public property protection, particularly its 
criminal law dimension, through academic research and 
publications. Unfortunately, this area remains largely 
underdeveloped in Afghanistan, and further studies 
could contribute to knowledge production and legal 
advancements in this field. 



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Abbreviations 
CMA – Civil Code of  Afghanistan 
PC – Penal Code 
FAL – Forest Law of  Afghanistan 
WLA – Water Law of  Afghanistan 
PL – Pasture Law of  Afghanistan 
 
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