Questions:

Asalamu Alaikum wa Rahmatullah wa Barakatahu.

I have a question of two parts on my mind that stopped me many times in the book, The Economic System, regarding the barren land on Kharaj land.

The same issue was repeated in the book Funds of the Islamic State in the same context. It is about the barren land on Kharaj land that is treated as the ‘Ushri land with regards to the Muslim; he is allowed to fence and own it and does not pay Kharaj on it but only pays ‘Ushr. As for the Dhimmi, he is not allowed to own it but pays Kharaj on it.

The question is: Why can't the Dhimmi own the land when it is treated as ‘Ushri land when in ‘Ushri land he can fence and own the land? Since in origin, is for him to be treated the treatment of the ‘Ushri as the Muslim is treated. This is regarding the first question.

As for the second question: Why do we say that the Dhimmi must pay Kharaj on ‘Ushri land? And Kharaj is not taken from ‘Ushri land? Since in origin it should be treated as its origin, we must not call it Kharaj because it has a Shar' meaning and here we contradicted the definition by calling the money taken from the Dhimmi on ‘Ushri land as Kharaj. Why cannot there be Ijtihad in the name of this money?

Jazak Allahu Khair.

Answer:

Wa Alaikum as Salam wa Rahmatullah wa Barakatahu.

1.    Barren land is either on 'Ushri land or on Kharaj land.

a)  As for ‘Ushri land; reviving the barren (dead) land in it keeps it as ‘Ushri land. If it is revived by a Muslim then he has the ownership of its land title (raqabah) and its benefit and pays ‘Ushr on it as zakat.

If it was revived by a Kaffir Dhimmi, it remains as ‘Ushri land and he has the ownership of its land title (raqabah) and its benefit but pays Kharaj on it and not ‘Ushr, because ‘Ushr is Zakat. The Zakat is not taken from the Kaffir. And the agricultural land either ‘Ushr is paid on it according to the Shar'i rules, or Kharaj.  Because ‘Ushr is not taken from a Kaffir this is why he pays Kharaj on it.

b)  As for the barren land on Kharaj land, it is of two types:

-       A kharaj land that Kharaj was previously imposed on, then it became barren. If it is revived by a Muslim or Kaffir then its description does not change. And it remains as Kharaj land that both Muslim and Kaffir pay Kharaj on.

-       Another type of the Kharaj land is the one which Kharaj was not previously imposed on. If a Muslim revives it, it becomes ‘Ushri land and he pays ‘Ushr on it. And if a Kaffir Dhimmi revives it, then its description does not change and it remains as Kharaj land and kharaj is paid on it.

c)  As to why we say that the Dhimmi pays Kharaj on ‘Ushri land if he owns it. This is because any land is not free from a role; so it is ‘Ushri land that a Muslim pays ‘Ushr of Zakat on it, and Zakat is not taken from the Dhimmi. The agricultural land is not free from a role according to Sharr' rules. Therefore the Dhimmi pays Kharaj on it if he owns it.

The evidences of agricultural land categorised any land as either ‘Ushri land or Kharaj land.

As to how this is the case, here is the explanation:

The evidences of the rules regarding the agricultural land that are mentioned in Shari'ah:

• General evidences on all land that obliges Zakat of ‘Ushr on it or half of ‘Ushr according to Shar'i rules...

"فيم سقت الأنهار والغيم العشور، وفيما سقي بالسانية نصف العشر"

"There is tithe (‘Ushr) on land which receives its water from the sky, a river or was ‘Athariyya (trees or plants watered by rain). There is half-tithe on land which was irrigated by a bucket from rivers or wells" and other evidences.

• After the conquests a new problem arose on the lands, they were taken out of the general text, and Kharaj was taken from them:

قَالَ أَبُو عُبَيْدٍ: حدثنا يَزِيدُ بْنُ هَارُونَ، عَنِ ابْنِ أَبِي ذِئْبٍ، عَنِ الزُّهْرِيِّ، قَالَ: قَبِلَ رَسُولُ اللَّهِ صَلَّى اللهُ عَلَيْهِ وَسَلَّمَ الْجِزْيَةَ مِنْ مَجُوسِ الْبَحْرَيْنِ قَالَ الزُّهْرِيُّ: فَمَنْ أَسْلَمَ مِنْهُمْ قَبِلَ إِسْلَامَهُ، وَأَحْرَزَ إِسْلَامُهُ نَفْسَهُ وَمَالَهُ إِلَّا الْأَرْضَ، فَإِنَّهَا فَيْءٌ لِلْمُسْلِمِينَ، مِنْ أَجْلِ أَنَّهُ لَمْ يُسْلِمْ أَوَّلَ مَرَّةٍ وَهُوَ فِي مَنَعَةٍ

"The Messenger of Allah (saw) accepted the Jizya from the Magi of Bahrain." Al-Zuhri said: "He who embraced Islam he (saw) accepted it from him and his Islam ensured that his life and his wealth were safe, save for the land. That land became booty for the Muslims because he had not embraced Islam in the first instance when he was in a position of strength"

This is what Umar (ra) judged by on the Sawad Land when he said:

" وقد رأيت أن أحبس الأرضين بعلوجها، وأضع فيها الخراج..."

"I have thought that I should hold back the land with its infidel population and impose on them Kharaj..." and other evidences.

• This is why all agricultural land in Dar ul Islam has Zakat on it according to Shar'i rules. Except a specific type that has Kharaj on it.
• The general rule is applied on generally: "That all agricultural land in Dar ul Islam has zakat" according to Shar'i rules and nothing is beyond these rules except what is made Khas (restrictive) by the text "Kharaj land".

2. This is the rule on agricultural land, it is either ‘Ushri or Kharaj. This is the description of agricultural land which is not free from a role, i.e. there is no agricultural land that is not called either ‘Ushri land or kharaj land.

3. As for you saying that Kharaj has a Shar'i understanding and when a Dhimmi pays Kharaj on ‘Ushri land then we contradicted the Shar'i understanding of kharaj; this saying is incorrect because the Kharaj land does not have an explained description in reality of the ground if it is ‘Ushri or Kharaj, land is land i.e. it is a rigid term. There could be ‘Ushri land and near it could be a Kharaj land but there is no difference between them in soil nor the plants. The phrase Kharaj is not an explained description linked to a rule, this is why the payment by Dhimmi of kharaj on ‘Ushr that he owns holds no contradiction to the understanding of Kharaj.

Your brother,

Ata Bin Khalil Abu Al-Rashtah.

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