Pasal 133: Tanah ‘usyriyah adalah tanah suatu negeri yang penduduknya masuk Islam, termasuk tanah Jazirah Arab. Tanah kharaj adalah tanah suatu negeri yang dibebaskan melalui peperangan atau perdamaian, kecuali tanah Jazirah Arab. Tanah ‘usyriyah menjadi hak milik individu, baik tanahnya maupun manfaatnnya. Sedangkan tanah kharaj, (tanahnya) menjadi milik negara dan manfaatnya milik individu. Setiap individu dibolehkan menjual/memberikan tanah ‘usyriyah, atau menjual/memberikan manfaat tanah kharajiyah sesuai aqad yang dibolehkan syara’; serta dapat diwariskan seperti halnya kekayaan lainnya.
Article 133: Tithed land (‘Ushriyyah) constitutes land within the Arabian Peninsula and land whose owners had embraced Islam, whilst possessing the land, before the Islamic State conquered them by Jihad. Taxed land (Kharajiyyah) is all land, other than the Arabian Peninsula, which was opened by jihad, whether through war or peace treaties. The ‘Ushriyyah land, together with its benefits, is owned by individuals, whereas the Kharajiyyah land is owned by the State, while individuals own its benefits. Every individual has the right to exchange, through Shari’ah contracts, the tithed land and the benefits of taxed land. All people can inherit these, the same as with all other wealth.
Its evidence is that land is the same as wealth, and is considered as booty for the Muslims if it was taken through war, similar to all the war booty. This would be the Kharajiyyah land and control of it belongs to the Bayt Al-Mal. If on the other hand, its inhabitants accepted Islam, then it would be considered like the wealth of the Muslims, owned by them and they are responsible for it, and this is the ‘Ushriyyah land.
As for the evidence as to the land being a booty like the rest of the wealth, Hafs b. Ghiyath narrated from Abu Dhi’b from Al-Zuhri who said:
«قَضَى رَسُولُ اللهِ فِيمَنْ أَسْلَمَ مِنْ أَهْلِ الْبَحْرَيْنِ أَنَّهُ قَدْ أَحْرَزَ دَمَهُ وَمَالَهُ إِلاَّ أَرْضَهُ، فَإِنَّهَا فَيْءٌ لِلْمُسْلِمِينَ، لأَنَّهُمْ لَمْ يُسْلِمُوا وَهُمْ مُمْتَنِعُونَ»
“The Messenger of Allah judged that the people who became Muslim from Bahrain have their blood and wealth protected, apart from their land, since it was a booty for the Muslims, as they did not embrace Islam at first and rather resisted” (from the book Al-Kharaj by Yahya b. Adam).
With respect to the fact that it is not split amongst the fighters like the rest of the booty, this is because of the difference which occurred regarding this rule between Bilal (ra) and Al-Zubayr (ra) on one side and Umar (ra) on the other, while the evidence of Umar (ra) was stronger, as well as his being supported by ten people from the Ansar and Muhajireen. Al-Zubayr (ra) thought that the land of Egypt which had been opened should be like the transferable wealth which was divided between the fighters, but Umar (ra) rejected this whenAmrf Bin Al-Aas (ra) wrote to him, and so he replied:
«أَقِرَّهَا حَتَى يَغْزُوَ مِنْهَا حَبَلُ الحَبَلَةِ»
“leave it so that the children of the next generation will fight from it”. In other words, it will be property for the Muslim generations to come. And Bilal (ra) held the same opinion Al-Zubayr (ra) with respect to the land of Iraq, and so Sa’ad (ra) wrote to Umar (ra) about that so Umar (ra) replied to him:
«واترك الأرضين والأنهار لعمالها ليكون ذلك في أعطيات المسلمين، فإنا لو قسمناها بين من حضر لم يكن لمن بعدهم شيء»
“and leave the lands and rivers for its workers in order that it can provide for the Muslims, since if we divide it between those who are present, there will be nothing for those who come after them” (reported by Abu ‘Ubayd in Al-Amwal and Abu Yusuf in Al-Kharaj and Yahya b. Adam in Al-Kharaj, from Yazid b. Abi Habib). Umar’s (ra) proof for this was the words of Allah (swt):
((وَمَا أَفَاءَ اللَّهُ عَلَى رَسُولِهِ مِنْهُمْ فَمَا أَوْجَفْتُمْ عَلَيْهِ مِنْ خَيْلٍ وَلَا رِكَابٍ)) [الحشر 6] الآية فإن الله قد قال: ((فَلِلَّهِ وَلِلرَّسُولِ وَلِذِي الْقُرْبَى وَالْيَتَامَى وَالْمَسَاكِينِ وَابْنِ السَّبِيلِ)) [الحشر 7]، ثم قال: ((لِلْفُقَرَاءِ الْمُهَاجِرِينَ))
“And what Allah restored [of property] to His Messenger from them - you did not spur for it [in an expedition] any horses or camels.” (TMQ 59:6), and then Allah (swt) said: “- It is for Allah and for the Messenger and for [his] near relatives and orphans and the needy and [stranded] traveller.” (TMQ 59:7), then said: “For the poor emigrants” (TMQ 59:8), and then was not content until others were joined to them and so said:
((وَالَّذِينَ تَبَوَّءُوا الدَّارَ وَالْإِيمَانَ مِنْ قَبْلِهِمْ يُحِبُّونَ مَنْ هَاجَرَ إِلَيْهِمْ))
“And [also for] those who were settled in Al-Madinah and [adopted] the faith before them. They love those who emigrated to them.” (TMQ 59:9) who are the Ansar specifically, and then was not content until others were joined to them and so said:
((وَالَّذِينَ جَاءُوا مِنْ بَعْدِهِمْ))
“And [there is a share for] those who came after them.”, which is general encompassing everyone who came after them, and in this manner the booty was made for all of those mentioned. So this was Umar’s (ra) evidence regarding that the land whose inhabitants had not embraced Islam and was opened through conquest would become a wealth for all of the Muslims until the Day of Judgement, and that the Imam possesses its benefits for the sake of the people. He consulted with the Muslims, and they differed, and so he called for ten of the leaders and respected people from the Ansar, five from Al-Aws and the other five from Al-Khazraj, and he said to them:
«وقد رأيت أن أحبس أرضين بعلوجها، وأضع فيها الخراج، وفي رقابهم الجزية يؤدونها، فتكون فيئاً للمسلمين المقاتلة والذرية من بعدهم. أرأيتم هذه الثغور لا بد لها من رجال يلزمونها، أرأيتم هذه المدن العظام كالشام والجزيرة والكوفة والبصرة ومصر لا بد لها أن تشحن بالجيوش وإدرار العطاء لهم. فمن أين يعطى هؤلاء إذا قسمت الأرضون والعلوج؟»
“I thought I should keep the infidels on the land, and put a land tax (Kharaj) upon it, and a Jizya upon their necks to pay, and so it would be a booty for the Muslims who fought and for their offspring after them. Do you see these frontiers that require men to defend them?, do you see these large cities like As-Sham, Al-Jazeera, Kufa, Basra and Misr which have to be loaded with soldiers, and money has to be spent upon them?, so from where will we get the money if we divide the land and the infidels?” (As reported by Abu Yusuf in Al-Kharaj)So all of them said:
الرأي رأيك، فنعم ما قلت وما رأيت
“Your opinion is our opinion, what you have said and seen is correct”. Therefore, Umar’s (ra) citation of the verse and the reason that leaving the land would mean it would be continuous revenue for the Bayt Al-Mal was powerful evidence, and accordingly the land that was conquered was considered as a Kharajiyyah land; it was owned by the State and its inhabitants utilised it.
This is the rule irrespective of whether the land was conquered through force such as the land of Iraq, or through agreement, such as the city of Bayt Al-Maqdis. However, in the situation that the land was conquered through agreement, if the agreement stipulated a certain amount of tax then it is obligatory to interact upon the basis of that agreement, due to the words of the Messenger :
«إِنَّكُمْ لَعَلَّكُمْ تُقَاتِلُونَ قَوْماً فَيَتَّقُونَكُمْ بِأَمْوَالِهِمْ دُونَ أَنْفُسِهِمْ وَأَبْنَائِهِمْ وَيُصَالِحُونَكُمْ عَلَى صُلْحٍ فَلاَ تَأْخُذُوا مِنْهُ فَوْقَ ذَلِكَ، فَإِنَّهُ لاَ يَحِلُّ لَكُمْ»
“Truly you may fight a people, and they will save themselves and their children by their property, and then they conclude peace with you, so do not take anything more from them, because it is not lawful to you”. Abu ‘Ubayd said regarding this narration: the Sunnah in the land opened by treaty is that it is not worked more than what was agreed, even if they were capable of more than that, due to his words:
«فَلاَ تَأْخُذُوا مِنْهُ فَوْقَ ذَلِكَ، فَإِنَّهُ لاَ يَحِلُّ لَكُمْ»
“so do not take anything more from them, because it is not lawful to you”,reported by Abu ‘Ubayd in Al-Amwal, and even though there is an unknown narrator in the chain, the companions all adhered to leaving the land opening by treaty according to the treaty it was opened with, as from the narration
«وَالْمُسْلِمُونَ عَلَى شُرُوطِهِمْ إِلاَّ شَرْطًا حَرَّمَ حَلاَلاً أَوْ أَحَلَّ حَرَامًا»
"And the Muslims will be held to their conditions, except the conditions that make the lawful unlawful, or the unlawful lawful.” which Al-Tirmidhi reported and said was Hasan Sahih, from Kathir b. ‘Abd Allah b. ‘Amru b. Al-‘Awf Al-Muzani from his father from his grandfather, and is applied here.
If no condition is made as happened with Bayt Al-Maqdis then it is treated like the land which was conquered through force, since it is booty for the Muslims.
All of this applies outside of the Arabian Peninsula. As for the Arabian Peninsula, all of its land is considered to be ‘Ushriyyah landsince the Prophet conquered Makkah through force and left its land to its inhabitants, and did not impose any land tax upon them. This is because the tax is upon the land in the way that the Jizya is upon the individual, and so it is not established in the Arab land in the same way that no Jizya was established upon them, because the idol worshippers from the Arabs had the choice of either embracing Islam, or the sword:
((تُقَاتِلُونَهُمْ أَوْ يُسْلِمُونَ))
“You may fight them, or they will embrace Islam.” (TMQ 48:16), and, accordingly, their land is ‘Ushriyyah and not Kharajiyyah, just like any land whose inhabitants embraced Islam.
The ‘Ushriyyah land has Zakah upon it, which is that the State takes 10 per cent of its actual produce if it is irrigated by natural means, and if it is irrigated by watering or industrial irrigation then 5 per cent of the actual produce is take. Muslim reported from Jabir who said:
«فِيمَا سَقَتْ الأَنْهَارُ وَالْغَيْمُ الْعُشُورُ، وَفِيمَا سُقِيَ بِالسَّانِيَةِ نِصْفُ الْعُشْرِ»
“A tenth is payable on what is watered by rivers, or rains, and a twentieth on what is watered by camels.”. This tenth is considered Zakah and is to be placed in the Bayt Al-Mal, and should not be spent except upon one of the eight categories mentioned in the verse:
((إِنَّمَا الصَّدَقَاتُ لِلْفُقَرَاءِ وَالْمَسَاكِينِ وَالْعَامِلِينَ عَلَيْهَا وَالْمُؤَلَّفَةِ قُلُوبُهُمْ وَفِي الرِّقَابِ وَالْغَارِمِينَ وَفِي سَبِيلِ اللَّهِ وَاِبْنِ السَّبِيلِ فَرِيضَةً مِنَ اللَّهِ وَاللَّهُ عَلِيمٌ حَكِيمٌ ))
“Zakah expenditures are only for the poor and for the needy and for those employed to collect [Zakah] and for bringing hearts together [for Islam] and for freeing captives [or slaves] and for those in debt and for the cause of Allah and for the [stranded] traveller - an obligation [imposed] by Allah. And Allah is Knowing and Wise.” (TMQ 9:60). It is reported from Al-Hakim, Al-Bayhaqi and Al-Tabarani from the narration of Abu Musa and Mu’adh when the Prophet sent them to Yemen, to teach the people the issues of the Deen, and so he said:
«لاَ تَأْخُذَا الصَّدَقَةَ إِلاَّ مِنْ هَذِهِ الأَرْبَعَةِ: الشَّعِيرِ، وَالْحِنْطَةِ، وَالزَّبِيبِ، وَالتَّمْرِ»
“Do not take any Zakah except on these four crops: barley, wheat, raisins and dates.”
As for the Kharajiyyah land, the tax of Al-Kharaj is applied. The State takes a specific amount from the owner of the land, which is specified and limited according to the approximate produce of the land in usual circumstances, and not upon the actual produce. It is calculated according to its potential, in order that neither the owner of the land nor the Bayt Al-Mal (treasury) is disadvantaged. The Kharaj is taken from the owner each year, irrespective of whether the land was cultivated or not, or whether it was fertile or barren. Abu Yusuf reported in Al-Kharaj from ‘Amru b. Maymun and Harithah b. Madrib, saying:
«بعث عمر بن الخطاب (رضي الله تعالى عنه) عثمان بن حنيف على السواد، وأمره أن يمسحه، فوضع على كل جريب عامرٍ أو غامرٍ، مما يعمل مثله، درهماً وقفيزاً»
“Umar Bin Al-Khattab sent ‘Uthman Bin Hanif to Sawad, and commanded him to survey it, and so he placed tax of a Dirham and a qafiz upon each part of arable land”. Al-Hujaj b. Arta’a from Ibn Awf narrated:
«أن عمر بن الخطاب مسح السواد، ما دون جبل حلوان، فوضع على كل جريب عامرٍ أو غامرٍ يناله الماء بدلو أو بغيره، زُرع أو عُطّل، درهماً وقفيزاً واحداً»
“Umar b. Al-Khattab surveyed the land of Sawad, below mountain Hilwan, a Dirham and a qafiz was placed upon each part of arable land (or sunken by water land) that water reached by bucket or anything else, whether it was cultivated or not.” (reported by Abu Yusuf in Al-Kharaj).
As for imposing the tax upon the Kharajiyyah land, this is because the tax (Al-Kharaj) is the word for leasing and revenue, as used in the words of the Prophet :
“the produce is for the responsible” (reported by Ahmad and the authors of the books of sunan, and Al-Tirmidhi said it was Hasan Sahih and similarly Al-Hakim authenticated it and Al-Dhahabi agreed with him). And the land here is owned by the Bayt Al-Mal. Then, it is given to the people in order to utilise it, and a tax is levied upon them which is for a fixed amount annually, and so it is just like a lease for them, which is why its calculation is left to the Khalifah, but it cannot exceed what the land is able to produce. The Kharaj is put in the Bayt Al-Mal in other than the Zakah section, and it is spent upon all aspects the State sees fit like the other wealth.
The Kharaj imposed upon the land which was conquered by force remains forever, and so if the people embraced Islam or sold the land to Muslims, the Kharaj is not voided, since its characteristic of being opened by conquest remains until the end of time. It is obligatory upon them to pay the 'Ushrwith the Kharaj, since the Kharaj is a right upon the land and the 'Ushris a right obligated upon the produce of the land of the Muslim according to the verses and narrations. There is no contradiction between these two rights, since they are obligated due to two different causes. As for what the Hanafis use as proof for the non-joining between 'Ushr and Kharaj, the narration they report from the Messenger of Allah
(لا يجتمع عشر وخراج في أرض مسلم)
(The 'Ushr [land Zakah] and Kharaj [land tax] are not combined in the land of a Muslim) – this is not a narration, and is not confirmed by any of the collectors of narrations from the words of the Messenger .
So the payment of Kharaj is started first. If after paying Kharaj there remains crops and fruits which reach the Nisab (prescribed minimum amount)on which Zakah has to be paid, then the Zakah is exacted. If it does not reach the Nisab then there is no Zakah on him.
If the Muslim owns ‘Ushriyyah land, then he has to pay the Zakah upon the basis of either 10 per cent or 5 per cent, and if he owns Kharajiyyah land then he has to pay both Kharaj and Zakah, in other words, 10 per cent or 5 per cent.
If a disbeliever owns Kharajiyyah land then he has to pay Kharaj and if he owns ‘Ushriyyah land then he must pay Kharaj and not ‘Ushr since the land must not be left unused, and since he is not from those upon whom the ‘Ushr applies so then Kharaj is assigned.
As for whoever revives a dead land from the Kharaj land, which previously had Kharaj paid upon it before it became dead land, then it becomes Kharajiyyah land, irrespective of whether it was a Muslim or non-Muslim who revived it.
This is if it was revived for the sake of agriculture. However, if it was for residential purposes or to establish factories, storehouses or pens, then neither ‘Ushr nor Kharaj would apply to it, irrespective of whether the land was originally for ‘Ushr or Kharaj. When the companions opened Iraq and Egypt, they developed Kufa, Basra and Fustat, which were then inhabited at the time of Umar (ra), and others came and inhabited the areas with them, and they did not charge them Al-Kharaj, and nor was Zakah paid from it since it is not obliged upon homes and buildings.
It is possible to trade and inherit ‘Ushriyyah and Kharajiyyah land from its owners, because it is a literal possession belonging to its owner, and so all the rules regarding possession apply to it. In relation to ‘Ushriyyah land this is clear, and as for Kharajiyyah land then possession of it is the same as possessing ‘Ushriyyah land without any difference between them from the angle of possession, except for two issues: firstly, with respect to what it is that is owned and secondly, with respect to what is obligatory upon the land. As for the issue of what it is that is possessed, the owner of the ‘Ushriyyah land possesses the land itself and its yields, while the owner of the Kharajiyyah land possesses the yields alone. Consequently, if the owner of ‘Ushriyyah land wanted to give it as a charity, he is permitted to do so anytime he wishes. However, the owner of Kharajiyyah land is unable to do so, since in order to give anything as an endowment, it is a condition that the person donating it own the object itself, and the owner of Kharajiyyah land does not own the land itself but rather owns its yields, since the title of the land itself belongs to the Bayt Al-Mal.
And as for the issue of what is obligatory upon the land, the 10 or 5 per cent is applicable to the ‘Ushriyyah land; in other words, the Zakah upon what was actually produced by the land if it reaches the minimum applicable amount (Nisab). The land tax (Kharaj) is imposed upon the Kharajiyyah land, in other words, the annual amount specified by the State, irrespective of whether it was planted or not, cultivated or not, or whether the crop was harvested or there was a drought. These two issues are the only differences between the rules regarding the ‘Ushriyyah and Kharajiyyah land, and there is nothing apart from them which differentiates between the two, and so the rules regarding them are the same, which are the rules regarding possession of wealth. Therefore, the right is there for the land, whether ‘Ushriyyah or Kharajiyyah, to be exchanged by means of any of the types of Shari’ah transactions such as contracts and so on, and for them to be inherited from their owners like all other types of wealth.