The Islamic Personality by Sheikh Taqīuddīn An-Nabahānī

Abu Ubayd said: ‘We find that the traditions from the Messenger of Allah (saw) and the Khulafaa after him came regarding the conquest of lands with three rules: The land where people embraced Islam upon it so their property remains with them, and it is the land of ushr and there is nothing else in it upon them. And the land conquered by truce upon a specific kharaj, so upon them is what they made truce upon and nothing beyond that is obliged upon them. And the land taken by force which is the one Muslims differed upon. Some of them said that its way is the way of war booty (ghaneema) so it is divided into fifths and divided. So four-fifths becomes distributed between those who conquered it specifically and the remaining fifth for those named by Allah (swt). Some said that its rule and the consideration over it is for the Imam; if he sees that he divided it into fifths and divides it like the Messenger of Allah (saw) did in Khayber, then he can do that. And if he sees that he makes it booty (fai) so that he does not divide it into fifths and not divide it, but it becomes a trust for Muslims generally as long as it remains just as Umar did with the siwad (land between river Dajla and Euphrates and surrounding it) then he can do that. These are the rules of land which are opened by conquest’ (Abu Ubayds reference ends here).

The land in Islam from the time Allah sent His Messenger (saw) until the day Allah inherits the earth and those upon it is either the land of ushr or the land of kharaj or the land of truce. As for the land of ushr, it is the land from which ushr (tithe) is taken or half-tithe as zakat from what is produced from it so it is ushri land. It is named that in relation to the tithe taken from the produce(r) of the land as zakat upon it.

It includes every land whose inhabitants embraced Islam upon it originally like the land of Al Madinah Al-Munawwarah or Indonesia. The people of Madinah in the days of the Messenger (saw) and the Khulafaa after him did not except the tithe as zakat from the produce of the land.

Similarly the land of ushr covers all the Arabian Peninsula whether its inhabitants embraced Islam upon it like Madinah or it was conquered by force like Makkah. The Messenger of Allah (saw) left the land of Makkah to its inhabitants and he did not take it from them. This was the same for the rest of the peninsula except what was for the Jews. This is because Allah did not accept from the Arab polytheists except Islam or the sword. Allah chose His Messenger (saw) from among them and revealed the Qur’an in their language so therefore they are more capable to understand and comprehend it so He commanded them all with Islam and whoever does not embrace Islam is killed. He did not accept jizyah from them along with their remaining upon their religion so He honoured them above this humiliation. He did not accept jizyah upon their heads nor implements kharaj upon their lands; rather He made the whole Arabian Peninsula ushri land whether its inhabitants embraced Islam upon it or it was conquered by force. And He made its residents Muslims and commanded the Messenger (saw) to remove the Jews from it so that there does not remain within it except the deen of Islam. Accordingly there was no zakah taken except the tithe on the produce by the Messenger (saw) until this hour.

All land conquered by Muslims by force of weapons and divided by the Imam between the fighters such as the land of Khayber is joined to the land of ushri and becomes ushri land. Or what the Imam confirmed for them upon a part from it as happened with the Muslims’ army in Sham and Homs. Al-Ahwas bin Hakeem narrated that the Muslims who conquered Homs did not enter it but rather encamped upon the river Al-Irbid and lived there, so Umar executed it for them and Uthman. As it is narrated that when Allah (swt) gave the Muslims victory over Bilad AsSham and they made peace with the people of Damascus and Homs, they disliked to enter it before completing their victory and inflicted severe massacres over the enemy of Allah. So they encamped in the meadow of Bardi between Al-Mizzah and the meadow of Sha’ban, and the two sides of the meadow of Muruj were permitted for the people of Damascus and its produce not for anyone of them so they resided therein. This information reached Umar and he executed it for them, and Uthman executed it after him. It never departed from its owners without kharaj in it; rather tithe was paid as it was owned by Muslims originally and no kharaj was imposed upon it.

Similarly attached to the land of ushr so that it because ushri land is the allotments allocated by the Khalifah to the people from the land conquered violently and its inhabitants left fleeing from Muslims or was owned by the conquered State, its rulers therein or their family or relatives. As it was narrated from some of the people of Madinah from the preceding sheikhs that it was found in the diwan of Umar bin Al-Khattab (ra) selected the properties of Khosroes and the family of Khosroes, everyone who fled from his land or was killed in the battlefield and every bog of water or thickets. Umar would allocate from this land to the one allocated and would take the tithe from it so it became ushri land even though it was conquered by the State’s power as it did not remain in the hands of its inhabitants. Kharaj was not imposed upon it; rather the Muslim owned it originally by its allocation to him by the Imam.

Similarly what the Imam allocated to someone from the land not yet conquered, after Allah (swt) opens it for the believers then it becomes booty to the one it was allocated to. This is like the Messenger (saw)’s allocating to Tamim Ad-Dari the land of Hibra, Hebron, Al-Martum and ‘Ainun in Al-Khalil. When Tamim Ad-Dari was sent as an envoy with his people, he requested from him that he (saw) allocates him these areas if Allah (swt) opened them for the Muslims so he allocated them to him and wrote a book for him regarding that. Umar (ra) was among the witnesses upon that book so when Allah (swt) opened it for Muslims in the days of Umar (ra), he sought them from Umar (ra) and Umar (ra) handed it to him in fulfilment of the grant of the Messenger of Allah (saw). Also similar is what the Imam allocates to the people of the lands of ushr without owners, like the Messenger of Allah (saw) allocated Bilal bin Harith Al-Muzni the whole of Al-‘Ameeq which is the land close to Madinah and it is the land of ushr.

All uncultivated land which is revived by people via any type of cultivation is attached to the land of ushr so that it similarly becomes ushri land, whether it is from the land of ushr i.e. from the Arabian peninsula or Indonesia and any land whose inhabitants embraced Islam upon it or it were from the land of kharaj like the lands of Iraq, Sham, Egypt and other lands conquered by force. It has been narrated from Jabir bin Abdullah (ra) who said: The Messenger of Allah (saw) said:

He also narrated via the way of Saeed bin Zyad that the Prophet (saw) said:

These types of land are all ushri lands, and it is not obliged upon them except the tithe of the produce if it is irrigated by water from the sky or half-tithe if irrigated from wells, rivers and (sawaqi). This does not change or alter even if the owners change because its attribute remains without change or alteration as it is a land whose people embraced Islam upon it or a Muslim owned it originally or it is in the Arabian Peninsula. These attributes remain perpetually without passing away even if it is transferred from a Muslim to a disbeliever. The attribute remains compulsory upon it so it remains obligatory to pay the tithe as zakat upon the produce. If it does not produce then there is no zakat upon it. Hence there is no zakat upon the residential land except it is farmed or if it is taken for trade then it becomes merchandise of trade; at this point, the zakat of trading merchandise is obliged upon it.

Ushri land is the (yameen) property of its owner who owns its neck and benefits and holds all types of dispositions within it of buying, trade, pledging, gift and trust just like it is inherited from them. It is not taken away from them except with their consent and the State pays them the price of the land’s neck and benefit if it takes it away from them. Except the land allocated by the Imam to individuals and the land enclosed by individuals by any sign indicating the placing of a hand over it; if three years pass over it without reviving, exploitation or cultivation then it is taken away from the hand of its owner without the State paying anything to them whether the price of the neck or the price of the benefit. This is because they did not undertake to realize the objective for whose sake the allocation or enclosure occurred, which is to make use of the land and cultivating it by planting and cultivation. So they do not deserve it, and that’s why their possession of these lands is of no purpose. Hence Umar bin Al-Khattab (ra) removed the land of Al-‘Ameeq from Bilal bin Al-Harith Al-Muzni as long as he was not able to cultivate it, after he said to him that the Messenger of Allah (saw) did not allocate it to you to enclose it from the people but rather he only allocated to you to work so take what is your capability to cultivate and return the remainder. Bilal said to him: ‘By Allah, I will never do anything. The Messenger of Allah (saw) allocated it. Umar said: By Allah, you will do (it)’ and he took what he was incapable of cultivation upon it without compensating him anything at all, and he divided it between the Muslims. Similarly it is narrated of Umar his statement on the minbar:

And he said:

The Ijma’a of the Sahabah was contracted that whoever leaves unemployed his land for three years, it is taken from him and given to someone else.

As for the land of kharaj, it is the land conquered by force by the strength of the Muslims and their army, but it is not divided between the fighters. Rather the Imam leaves it in the hands of its inhabitants and imposes kharaj upon them. The origin in that is that when Iraq, Sham and Egypt were conquered in the days of Umar bin Al-Khattab (ra), the Muslims requested him to divide it between them as the Messenger of Allah (saw) divided Khayber. The head of those requesting the division of the land were Bilal (ra), Abdurrahman bin Awf (ra) and Az-Zubayr (ra). However Ali (ra) and Muadh (ra) requested from Umar (ra) not to divided the land, and Muadh (ra) said to Umar (ra) as Abu Ubayd narrated in ‘Al-Amwal’ that Umar (ra) came to Al-Jibaya and he intended to divide the land between the Muslims so Muadh (ra) said to him: By Allah, this will become what you dislike. If you divide it today it will become a great asset (ra’iy) in the hands of the people then they will perish until it will lead to be owned by one man and woman. Then there will come after them people who will become an obstacle for Islam and they do not find anything, so look to a matter which will be spacious for their first and last. Bilal (ra) and his companions were severe in seeking from Umar (ra) until Umar (ra) said: ‘O Allah! Be sufficient for me against Bilal and his followers.’ Umar consulted the Muhajireen and Ansar in this, and of what he said to them was: ‘I viewed that I retain the land and place upon it kharaj and upon their necks jizyah to pay so that it becomes booty for the Muslims fighters and families and those coming after them. Do you see these frontiers? It is necessary to have men adhere closely to them. Do you see these great cities like Sham, Al-Jazeera, Kufa, Basra and Egypt? It is necessary to fill them with armies and arrange pay for them. From where would they be paid if I divide the lands and the assets? They all said: The opinion is your opinion. How excellent is what you did and what you considered.’ He deduced for them for his opinion with the ayat of booty which came in Surah Al-Hashr and among them:

He deduced from this ayah that those who would come from the sons of the Sahabah, the followers (tabi’in) and their followers, and those who would come after them until the Day of Judgement have a right upon this booty.

Accordingly, the consideration of Umar that the necessity calls for creating permanent spending from where expense are paid for the army, salaries are withdrawn, administering the State’s interest expended from it and needy persons are paid from it always. These expenses require permanent spending which does not end. So his thinking and understanding of the ayat of booty which came in Surah Al-Hashr guided him to prevent the division of a conquered land between the Muslims and to leave it retained in the hands of its inhabitants, and to impose kharaj upon them so as to become permanent booty to be expended upon the Muslims’ army and their benefit. This is the real meaning which lead Umar (ra) not to divide the land between the Muslims. This meaning is expressed in Umar’s statement:

From here it is understood that the neck of the land of kharaj is owned by all Muslims and it is retained for them; its remaining in the hands of its inhabitants is only to cultivate and exploit it on behalf of Muslims on condition of their paying kharaj upon it in return for their remaining with their benefits in it and their exploiting it. They are not owners of its neck but they have been consented upon owning its benefit. Accordingly it is the view of some Sahabah and many people of knowledge not to purchase this land; among them are Umar (ra), Ali (ra), Ibn Abbas (ra), Abdullah bin Umar (ra), Al-Awzai’ (ra) and Malik (ra). Al-Awzai’ said:

Ash-Sh’abi narrated that Utbah bin Farqad purchased land upon the river-banks of Al-Furrat to took from it a small channel of irrigation. He mentioned this to Umar (ra) and he said:

They disliked the purchasing of the kharaji land from the people of dhimmah as its neck is retained for Muslims, and also purchasing it from the people of dhimmah will make the Muslim pay kharaj and they considered the kharaj as humiliation which must be removed from the Muslims until they said: ‘Whoever accepts kharaj has consented to humiliation and submissiveness.’ However there are other Sahabah and jurisprudents (fuqaha) who saw nothing (wrong) in purchasing just as some of the Sahabah purchased from the land of jizyah so it is narrated that ibn Masoud purchased land from Dahqan. And Ath-Thawri said: ‘If the Imam confirms the people of force in their lands, they inherit and buy them.’ Similar to this is narrated from ibn Sireen and Al-Qurtubi, and it is narrated from Ahmad that he said:

By careful examination into the reality of the land conquered by force and which its inhabitants reside upon on condition that they pay kharaj upon it, it is witnessed that this land has been inherited by sons from the fathers, generation after generation, without (any) rejection from any of the Sahabah or any Muslim. This is definite evidence that kharaji land is inhabited like ushri land, except that what is inherited in kharaji land is its permanent benefit; its neck is not inherited as it is owned by all Muslims. As for the benefit, Umar bin Al-Khattab (ra) consented to its inhabitants owning its permanent benefits to the end of time. The benefit is owned and inhabited, and the owner of the benefit can dispose in it via all types of dispositions of trade, pledge, bequest and other types of dispositions.

This is one aspect. As for the second, humiliation is not definite in kharaj but rather it is only in the jizyah on the head of the family because the kharaj of land is only paid by the owner of the land in exchange for consenting him in the ownership of the land’s benefit, thereby facilitating him to exploit the land and derive benefit from it. Accordingly it does not appear in it the meaning of humiliation and submissiveness as it is paid in exchange for a benefit. There does not exist humiliation in exchange for a benefit. Do you not see that the salary paid by a person in exchange for his benefiting with the residence of a house or trading in a shop, that there does not exist any humiliation within it? Accordingly the kharaj of land is only in exchange for owning the benefit of the land so it is not considered humiliation and hence no humiliation is attached to the one who purchases land of kharaj.

Thirdly, the disbeliever who is allowed to remain upon the conquered land who pays kharaj in it has the potential to change into a Muslim, either himself or his family, and with his change the ownership of the benefit of the land will have moved from a disbeliever to a Muslim. With this change the paying of kharaj will have changed from a disbeliever to a Muslim; and this is what happened in practice. The people of Iraq, Sham, Iran, Egypt etc and other from the conquered lands converted into Muslims and the Muslims became the one paying kharaj. And the transfer of kharaji land from a Muslim to a Muslim by sale, purchase, gift or inheritance has no difference regarding it as the Muslims are equal since there is no difference between the property of a Muslim and another Muslim. Accordingly this clarifies that there is no sin in the transferring of the land of kharaj from a Muslim to a Muslim by inheritance, trade, gift, bequest or other (ways). The land’s attribute and what is obliged upon it remains to the Last Hour whoever the type of owner of the land and however the hands of ownership changes because its attribute in its being conquered by force remains to the Last Hour without change. The transfer of ownership of its benefit from a disbeliever to a Muslim does not change this attribute, just as it does not change what is obliged upon it of kharaj since kharaj is linked with the conquered land whose inhabitants were allowed to remain upon it and were not linked with ownership.

Whoever owns the benefit of the land can trade this benefit and receive its price because the benefit is sold and its value deserved. No one possesses (the right) to depose it from its owner not even the Muslims’ Khalifah. Abu Yusuf said: ‘Whichever land was conquered by force by the Imam and he did not opine its division, and he saw the benefit in leaving it in the hands of its inhabitants just as Umar bin Al-Khattab (ra) did in the lands of siwad (land between river Dajla and Euphrates and surrounding it), then he can do this. It is the land of kharaj, and it is not for him to depose it from them after this. It is their property to inherit and trade in it, and he will place kharaj upon it…all that was allowed by the governors of the land of siwad, it is not allowed for the Khulafaa coming after them to reject this nor depose it from their hand whether an heir or purchaser. If one governor takes land from the hand of someone and allocates it to another, this is equivalent to one seizing by force where one is seized by force and the other receives it. This is not allowed for the Imam nor is it permitted for him to allocate the right of the Muslim or mu’ahid to any person, nor is anything like that taken from his hand except for a right due to him upon it hence what is due to him is taken from it.’ Accordingly if the State needs to take a land from the lands of kharaj for a benefit the Muslims cannot do without, it is obligatory upon it to pay the owner of the land the value of his ownership of the land’s benefit which it took possession of not the price of its neck, because the owner of kharaji land merely owns the land’s benefit not its neck since its neck is owned by the Muslims. Accordingly it is upon it to pay him the value of what he owns which is the benefit whether big or small. Nor is it reduced to paying the value of what he established upon it from buildings or trees as this will be considered as a seizure by force of a right he owns for he owns what he established upon it from buildings and trees and he owns what is within it of its ability to produce and its permitted benefits. So it is obligatory to estimate the value of all that, particularly as it often happens that he bought it for tens of thousands whereas what is upon it from buildings and trees does not even equal tens of hundreds. So restricting to paying the value of buildings and trees is oppression upon him and neglecting of his right. If the State does not pay all that is upon his land of benefit, it will be unjust seizure. This is like any benefit when bought; it is obligatory to pay its value fully. All the preceding rules related to kharaji land are only in the land prepared for cultivation. As for residential land in the conquered lands its rule is contrary to the rule of cultivated land. Residential land has no kharaj upon it and its neck and benefit is owned. This is according to the Ijma’a of the Sahabah. When the Muslims conquered Iraq, they took possession of Kufa and Basra for the first time and divided it between them, so it became private property for them with them owning its neck and benefit in the days of Umar bin Al-Khatab (ra) with his permission. And the Sahabah of the Messenger of Allah (saw) resided therein. Similarly for Sham, Egypt and other conquered lands. They did not pay kharaj upon anything from it. It was sold and bought like any private property. Similarly, there is no zakat upon it except if it is taken as merchandise for trade. At that point zakat of trading merchandise is taken. The land conquered by force is a matter for the Imam. If he wishes, he divides as the Messenger of Allah (saw) divided Khayber. And if he wishes, he leaves it to be retained in the hands of its inhabitants and obliges kharaj upon it as booty for Muslims as Umar (ra) did in the land of siwad (land between river Dajla and Euphrates and surrounding it), Sham and Egypt. He does in that what he sees as benefit for Muslims.

As for the land of truce, it is every land whose inhabitants made truce upon with specific conditions. It is obliged upon the Muslims to fulfil the truce’s conditions and be bound by them whatever they are in conformity with what came in the Book of Allah and the Sunnah of His Messenger (saw) from the ayat and authenticated ahadith which oblige being bound by and fulfilment of covenants.

The land of truce is of types according to the type of conditions agreed upon during the contradicting of the truce. The land surrendered to the Muslims and its inhabitants expelled from it according to the truce condition like it occurred with the Jews of Banu Nadhir. The Messenger of Allah (saw) made truce with them upon expelling them from Madinah, and for them is what the camels carried of utensils and property except for weapons. So it was of what Allah gave His Messenger (saw) as booty. The matter of this type is left for the Imam to dispose in it in the form he sees benefit therein for Muslims.

And the land whose inhabitants made truce upon on condition it remains property for them and we allow them to reside therein upon their paying specific kharaj. The neck and benefit of this land remains the property of its inhabitants according to the truce conditions and they exchange it like any good they own. They can trade it, place it in trust, gift it and it is inherited from them. There is nothing upon them except what they made truce upon, and this is not increased. This kharaj is of the rank of jizyah. Accordingly if their land is transferred to a Muslim he does not pay kharaj upon it as the land is not land of kharaj. Similarly, if they become Muslim then kharaj does not apply to them just as the jizyah is exempted from the one who becomes Muslim. This is like the land of Hijr and Bahrain. This is because Hijr and Bahrain were opened by truce just like Ayla Al-‘Aqabah, Dumat al-Jundal and Adhrah were opened by truce. These towns paid jizyah to the Messenger of Allah (saw). Similarly the cities of Sham except for the Caesarian ones, the land of the peninsula (al-jazirah) and all the land of Khurasan or most of it. Accordingly their rule was the rule of truce.

And the land upon which the disbelievers made truce upon the land which belonged to us and we allow them to reside in it and its buildings for a specific kharaj. The rule of all this land is the rule of the land of force (‘unwa), and its kharaj is the kharaj of the land of force.