Draft Constitution 133 to 142

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 “The Messenger of Allah ruled 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, since 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 Muhajirin. 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 when Amru Bin al-Aas (ra) wrote to him, and so he replied “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: “and leave the lands and rivers for its workers in order that it can provide for the Muslims, since if we divided it between those who were present, there would be nothing for those who came 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), “And what Allah gave as booty to His Messenger from them – for this you made no expedition with either cavalry or cameleers…” (TMQ  59:6), and then Allah (swt) said “it is for Allah, His Messenger, the kindred (of the Messenger), the orphans, the poor, and the traveller” (TMQ 59:7), then said “for the poor muhajirin” (TMQ 59:8), and then was not content until others were joined to them and so said “and those, who before them had homes and had adopted the faith, love those who emigrate to them” (TMQ 59:9) who are the Ansar specifically, and then was not content until others were joined to them and so said “and 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 “I thought that I should keep the infidels on the land, and put a land tax upon it, and a Jizya upon their necks that they have 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 and al-Jazeera and Kufa and 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 divided the land and the infidels?” (As reported by Abu Yusuf in al-Kharaj) So all of them said “Your opinion is our opinion, since what you have said and opined 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  “Truly you may fight a people, and they protect themselves and their children with their wealth, and make peace with you through a treaty, so do not take anything more than that from them, because it is not permitted for 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 “so do not take anything more than that from them, because it is not permitted for 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 “and the Muslims are upon their conditions, except for a condition that makes the halal prohibited, or makes the haram permitted” 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 land since 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, “you will fight against them, or they will become Muslims” (TMQ 48:16), and so 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 “Whatever is irrigated by rivers and clouds is 10 per cent, and whatever is irrigated by watering is 5 per cent”. This tenth is considered Zakat 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: “As-Sadaqat (here it means Zakat) are only for the Fuqara' (poor), and Al-Masakin(the poor) and those employed to collect (the funds); and to attract the hearts of those who have been inclined (towards Islam); and to free the captives; and for those in debt; and for Allah's Cause, and for the wayfarer; a duty imposed by Allah. And Allah is All-Knower, All-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: “Do not take Sadaqah except from these four: 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 “Umar Bin al-Khattab sent ‘Uthman Bin Hanif to Sawad, and ordered him to survey it, and so he placed tax of a dinar and a qafiz upon each part of arable land”. Al-Hujaj b. Arta’a from Ibn Awf narrated “Umar b. al-Khattab surveyed the land of Sawad, up to the Jalwan mountain, and so each part of arable land that water reached by bucket or anything else, whether it was cultivated or not, was charged a dirham and a qafiz” (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  “al-kharaj is by guarantee” (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 ushr with the kharaj, since the kharaj is a right upon the land and the ushr is 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  “The ushr and kharaj 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 Zakat has to be paid, then the Zakat is exacted. If it does not reach the nisab then there is no Zakat 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 Zakat 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 Zakat 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.

Article 134

Dead land is possessed through its revival and fencing. Any other type of land is not possessed except through a Shari’ah means such as inheritance, purchase, and donation by the State.

The evidence for the article are the words of the Prophet  “whoever revives dead land, then it is his” reported by al-Bukhari mawquf to Umar (ra), and it is narrated with an authentic chain connected to the Prophet  by Ahmad and Al-Tirmidhi from Jabir,  and “whoever puts a wall around land then it is his” reported by Ahmad and Abu Dawud with a chain authenticated by al-Jarwad and al-Zayn, and “Any people who revive something from the land, then they have more right to it” , and “Aadiy land is for Allah and His Messenger, and then for you after that” reported by Abu ‘Ubayd by an authentic Mursal narration, and Abu Yusuf mentioned in Al-Kharaj from Salam b. ‘Abd Allah that Umar b. al-Khattab (ra) said on the pulpit: “so whoever revives a dead land then it is for him, and the one who fenced it off has no right to it after three years”. The text of these narrations indicate that if an individual revives a dead land or fences it, in other words putting stones, fencing or a wall around it, then it becomes their possession. The understanding of the texts is that if the land was not dead then he could not take it into possession through revival or fencing, even if it was not cultivated, or not suitable for cultivation without any work being done to it, and even if the owner was not known. Therefore if the land was not dead then it cannot be possessed except by one of the causes of possession if its owner was known, and if the owner was unknown it could not be possessed unless the Khalifah granted it, and so it becomes possessed through this grant. If it is dead land, then it is possessed either through its revival or by placing one’s authority over it even if that occurs without necessarily reviving the land.

The dead land is the land where there are no signs upon it that it belongs to anyone, so there is no evidence of any kind of walling, agriculture, building or anything similar, and no owner or anyone utilising it. This is the dead land, and anything else is not considered dead land even if there was no owner or person utilising it.

Article 135

It is completely prohibited to rent land for agriculture, irrespective of whether the land was kharajiyyah or ‘ushriyyah. Likewise, temporary share-cropping is also prohibited. Musaaqa (renting trees for a portion of their yields) is permitted without restriction.

There are several evidences for the article, and all of them mention the prohibition of renting land; it is narrated from Rafi’ Bin Khadij who said “We used to partake in share-cropping at the time of the Messenger of Allah; so he mentioned that some of his uncles came to him and said: The Messenger of Allah forbade us from an issue that we used to get benefit from, and obedience to the Messenger of Allah is more beneficial; He said: so we asked, what was that? He said The Messenger of Allah  said “Whoever has land, he has to plant upon it or let his brother plant upon it, and he cannot lease it for a third or quarter of its yield or for a specified (amount of) food” (reported by Abu Dawud). It is narrated from Ibn Umar who said “We didn’t used to see any problem with share-cropping until we heard Raafi’ Bin Khadij say that the Messenger of Allah forbade it” (reported by Ibn Qudamah in al-Mughni and also by Muslim and al-Shafi’i with slight differences). Jaber said “The Messenger of Allah  forbade al-mukharaba” (reported by Muslim), and the mukharabah is share-cropping. Al-Bukhari narrated on the authority of Jabir: “We used to engage in share-cropping, giving a third and a quarter and a half, and so the Prophet  said “Whoever has land then he should cultivate it or grant it to someone else, and if he does not do that then it is taken from him””. Abu Dawud narrated from Zayd b. Thabit who said “The Messenger of Allah  forbade al-mukhabara. I asked – and what is al-mukhabara. He said to work on the land for a half, or a third, or a quarter”, and the narration of Rafi’ “The Prophet  forbade the leasing of farms” (agreed upon). And Zahir b. Rafi’ narrated “The Messenger of Allah called me and said “What are you doing with your land?” I said “We rent it out for a quarter or for amounts of dates and barley”. He said “Do not do that, either cultivate it or hold onto it” (agreed upon). It is narrated from Abu Sa‘id who said “The Messenger of Allah prohibited al-muhafala” (reported by Al-Nasa’i and Muslim), and al-muhafalah is the renting of land for wheat. In Sahih al-Bukhari it is mentioned that the Messenger of Allah  said “Whoever has land should cultivate it, or grant it to someone else, and if he refuses then his land is taken from him”, and in Sahih Muslim from Jabir, “The Messenger of Allah  forbade the land to be used for a rent or share of the crop”. In Sunan Al-Nasa’i it is narrated “The Messenger of Allah prohibited the leasing of land. We said O Messenger of Allah, in which case we will lease it in exchange for some of the grain. He said no. We said we will lease it in exchange for figs. He said no. We said we used to lease it upon rabee’. He said no, cultivate it or give it to your brother”. And rabee’ is the small river, in other words the river valley, meaning we used to lease for the part cultivated upon the rabee’ or in other words next to the water. It is also narrated that ‘Abd Allah b. Umar met and asked Rafi’ Bin Khadij who said “I heard from my two uncles, who were amongst those who partook in Badr, that the Messenger of Allah prohibited the leasing of land” reported by Muslim, and he mentioned the narration which mentions that Ibn Umar stopped leasing land.

These narrations explicitly mention that the Messenger of Allah  prohibited the renting of land. And though a prohibition merely indicates a request to desist, the indication here indicates that the request is decisive. As for the issue of the prohibition of share-cropping, Abu Dawud mentioned a narration on the authority of Jabir who said “I heard the Messenger of Allah  say “Whoever does not leave al-mukhabara (share-cropping) then war from Allah and His Messenger is announced to him” (authenticated by Ibn Hibban and al-Hakim, and al-Mundhiri did not comment upon it). As for the general leasing of land, when the Messenger of Allah  prohibited them from leasing the land, the companions said to him  we will lease it in exchange for some of the grain and he  said no, so they said we will lease it in exchange for figs, and he  said no. And they then said we used to lease it upon the river valley, and he  said no. Then he  emphasised that by saying cultivate it or give it to your brother. This is clearly insistence upon the prohibition, which is a confirmation for it. And the decisiveness is apparent from the narration, since the Messenger  prohibited them from leasing the land in any way. The companions wanted to make certain circumstances as exceptions from this general prohibition, and so they presented the first circumstance to the Messenger  in order for him  to permit it for them by saying “in which case, we will lease it for some of the grain”, and the Messenger  answered them by rejecting their request by saying no. Then, they presented him  with a second situation different from the first in order to get his  permission for it, so they said “we will lease it in exchange for figs”, to which the Messenger  replied no, rejecting that request as well. Then they presented a third situation other than the first two to the Messenger  in order to get his  permission, saying “We used to lease it upon the river valley”, and so he  replied to them for a third time rejecting what they had requested by saying no. He  did not stop at that, but rather he  limited the way that the land could be used to one of two options, saying “Cultivate it or give it to your brother”. This repetition of the rejection alongside the differing circumstances alone is enough to indicate that the prohibition was a decisive one. Additionally, this restriction is also sufficient on its own to indicate decisiveness, since his  words “Cultivate it or give it to your brother” are for the sake of restriction, and the word “or” is to give a choice between two issues, do this or this, which means do not do anything other than these options. Based upon this, this narration, due to the repetition and the manner of that repetition, and the restriction mentioned, clearly indicates decisiveness and so it is an indication that the prohibition related in the narrations prohibiting renting the land generally is a decisive prohibition.

Something else that supports the fact that the prohibition is for tahrim (prohibition), is what has been narrated in Abu Dawud from Rafi’ (and authenticated by al-Hakim) who said “He was cultivating a land, and the Prophet  walked by him while he was irrigating it, and so he asked him Who is this cultivation for, and who does the land belong to? And so he said I am cultivating it with my seeds and my work, and I own a half of it, and the other half is owned by the family of so and so. Then the Messenger  said You two have dealt with interest, so give the land back to its owner and take your expenses”. The Prophet  described this transaction as being usury, and usury is haram according to definite text. Additionally, the Messenger  requested Rafi’ to return the land to its owner, with whatever was there in terms of agriculture, and to take his expenses from them; in other words he  requested him to void the transaction. This indicates that the prohibition is a decisive one and so it is haram.

Therefore, these three narrations - the narration of Jabir which mentions the threat for partaking in mukhabarah, in other words share-cropping, and the narration of Al-Nasa’i with the repetition and restriction, and the narration of Raafi’ which describes the renting of land as being usury and voiding the transaction - are a definite indication that the prohibition is decisive, which indicates the tahrim of renting land generally.

Due to what is mentioned explicitly in these narrations, and what is understood from them, there is not the slightest doubt that it is forbidden to rent land generally. Yet some of the scholars are found to have permitted the renting of land. So we will also explain the evidences that some of the scholars used to permit the renting of land, not simply to criticise  those evidences but in order to show their invalidity.

Those who permit the renting of land say that the land is an object that benefit can be derived from while it remains, and so it is permitted to rent it for a price or something similar, such as for a crop rotation, and the rule regarding goods is the same as the rule regarding prices. The invalidity of this opinion is extremely apparent, since even though land is an object which benefits could be taken from while the land remains such as through crop rotation, but the text came to explicitly state that renting land is haram, so even if the definition of renting applies to it, the text came and forbade it, and for that reason it is haram. So though the evidence for renting is general and encompasses any type of renting, however there is an evidence which came forbidding the renting of land which restricts it to renting anything other than land, and so the renting of land was made as an exception and it was forbidden. That is why it is haram. Similar to this are the words of Allah (swt) “Eat of that which is lawful and good on the earth” (TMQ 2:168) which is general and includes everything, and the words of Allah (swt), “dead meat, blood and pork are forbidden upon you’’ (TMQ 5:3) and then it is restricted by other evidences, which are made as exceptions from the generality of these  things. Accordingly, the evidence they use for the permissibility of renting land has been refuted.

Those who permit the renting of land say that the evidence for this is what has been narrated about Hanthala b. Qays from Rafi’ b. Khadij who said “My two uncles used to rent land upon a quarter of the yield, or whatever the owner of the land took from the land, at the time of the Prophet, then he  prohibited the renting of land. So I said to Raafi’ “How about (renting) with gold and silver?” Raafi’ said “there is no problem with gold and silver” (reported by al-Bukhari).

It is clear from the narration in al-Bukhari that the sentence “there is no problem with gold and silver” is not from the words of the Messenger of Allah  but rather it is from the words of Rafi’. This is confirmed by what has been related in the narration in Muslim from Hanthala[s1]  Bin Qays al-Ansari himself, who said, “So I asked Rafi’ Bin Khadij about renting the land with gold and silver and Rafi’ said “There is no harm in it for the people let out land situated near canals and at the ends of the streamlets or portion of fields. (But it so happened) that at times this was destroyed and that was saved. Whereas (on other occasions) this portion was saved and the other was destroyed and thus no rent was payable to the people (who let out lands) but for this one (which was saved). It was due to this that he (the Prophet) prohibited it. But if there is something definite and reliable, there is no harm in it.”, which explains explicitly that the speaker of those words was Rafi’ and not the Prophet , and so it is an opinion of Rafi’ related by him in the narration, and the words of Rafi’ are not a Shari’ah evidence, and his opinion is not a Shari’ah evidence. This is especially the case when there is text which directly contradicts it. So Rafi’ understood from the prohibition of the Messenger  to rent land, and the land at that time used to be rented for what was produced from it, that the renting of land with gold and silver was no problem. What supports this being the specific understanding of Rafi’ is what was mentioned in the report in al-Bukhari from Hanthala Bin Qays al-Ansari that he heard Rafi’ b. Khadij say: “We worked on farms more than the people of Madinah. We used to rent the land at the yield of specific delimited portion of it to be given to the landlord. Sometimes the vegetation of that portion was affected by blights etc., while the rest remained safe and vice versa, so the Prophet forbade this practice. As for gold or silver, they were not used at that time (for renting the land)” (reported by al-Bukhari). So he said “As for gold and silver, they were not used at that time”, and what was in the report of Muslim, Abu Dawud and Al-Nasa’i from Rafi’ in the same narration “As for something that was known and guaranteed then there is no problem”, and so all of this is the understanding of Rafi’, and his understanding is not considered to be a Shari’ah evidence, and at the same time there is evidence which contradicts his view.

And those who permit the renting of land also argue that the evidences related to the prohibition of renting land are only regarding the type of renting which took place at that time, which was that a man would rent the land for a portion of what he harvested from it, in that the one renting would cultivate a part of the land in the river valley for the owner as rent, or give a fixed amount of food, or a portion of the yields from the land. These were the types of renting which were reported in the narrations prohibiting them, and so these are the forbidden types of renting land while anything else is permitted, and for this reason it is permitted to rent land for gold and silver.

The answer to that is that the evidences which prohibit renting of land were not limited to what they used to conduct their transactions with, but rather came in a general form: “Whoever has land, he has to plant upon it or let his brother plant upon it, and he cannot lease it for a third or quarter of its yield or for a specified (amount of) food” (reported by Abu Dawud). “The Messenger of Allah  forbade al-mukharaba” (reported by Muslim from Jabir). “Whoever has land then he should cultivate it or grant it to someone else, and if he does not do that, then it is taken from him” (reported by al-Bukhari from Jabir). “The Messenger of Allah  forbade the land to be used for a rent or share of the crop” (reported by Muslim from Jabir). The prohibition in these narrations are all general, to the point that when they asked about the types of farming, the answer of the Messenger  was not specific, but rather he  added a general rule – it is mentioned in Sunan Al-Nasa’i that the Messenger  prohibited renting of land, and so they said “in which case, we will lease it for some of the grain”, and the Messenger  answered them by rejecting their request by saying no. Then, they presented him  with a second situation different from the first in order to get his  permission for it, so they said “we will lease it in exchange for figs”, to which the Messenger  replied no, rejecting that request as well. Then they presented a third situation other than the first two to the Messenger  in order to get his  permission, saying “We used to lease it upon the river valley”, and so he  replied to them for a third time rejecting what they had requested by saying no. He  did not stop at that, but rather he limited the way that the land could be used to one of two options, saying “Cultivate it or give it to your brother”. It is reported from Zuhayr Bin Rafi’ who said “The Messenger of Allah sent for me and asked, 'What are you doing with your farms?' I replied, 'We give our farms on rent on the basis that we get the yield produced at the banks of the water streams (rivers) for the rent, or rent it for some bunches of barley and dates.’ The Messenger of Allah said, ‘do not do so, cultivate (the land) yourselves, or keep it uncultivated’” (agreed upon). From the two previous narrations it is clear that after the Messenger  prohibited them from what they used to do, he  ended his  words with a general text “Cultivate it or give it to your brother”, “Cultivate it yourselves, or keep it uncultivated”, and therefore the narrations remain general and not restricted to how they used to transact, so something unrestricted is not restricted; in other words they are not restricted to how they used to rent land when the prohibition was made, rather the prohibition remains general for all renting of land, completely, similar to the prohibition of interest which occurred when the people used to carry out usurious transactions with a high rate of interest, and all interest was prohibited not just the type of transactions they used to do. Accordingly, renting the land by anything is prohibited, whether by gold, silver or anything else. Therefore, the deduction of those who restrict the narration to the types of land rental which people used to do at the time the prohibition came has been proven false.

Those who permit the renting of land also say that the evidence for this permission is what has been extracted by Abu Dawud and Al-Nasa’i, with the wording of Al-Nasa’i, “The Messenger of Allah prohibited al-muhaaqalah (renting of land for wheat) and al-muzaabanah, and he said: Only three people cultivate, a man who has land, a man who has been given land, and a man who rents land for gold and silver”.

Further, what Al-Hafidh in al-Fath mistakenly attributed to Abu Dawud, while it is from Al-Nasa’i, he said: “Ubayd Allah bin Sa’ad bin Ibrahim told us, my uncle told me, he said my father told us from Muhammad ibn Ikrimah from Muhammad ibn Abdur Rahman ibn Labiyyah from Sa’ad b. Abi Waqqas (ra) who said “It used to be that the people who owned farms would rent them by share-cropping, and they argued over that, and so the Messenger of Allah prohibited them from renting in that manner, and said “Rent it with gold and silver””, and Al-Nasa’i added “this narration was reported from Sulaiman from Raafi’ who said from one of his uncles”.

They also use the narration from Abu Dawud who said: “Uthman ibn Abi Shayba told us Yazeed ibn Haroon told us Ibrahi ibn Sa’ad informed us from Muhammad bin Ikrimah bin Abdur Rahman bin Al-Harith bin Hisham from Muhammad bin Abdur Rahman bin Abi Labeeba from Saeed ibn Musayyib from Sa’ad, he said: “We used to rent the farms by a portion of the crop and what came from the water upon it, so the Messenger of Allah prohibited us from renting in that manner, and ordered us to rent it with gold and silver”.

They said that these three narrations indicate the permission of renting land with gold and silver.

The reply to this is that these narrations are not suitable to be used as evidence for the permission of renting land by gold and silver.

With respect to the first narration, Al-Nasa’i explained clearly that the words of the narration which are raised (marfu’) to the Messenger  are the prohibition of al-muhaaqalah and al-muzaabanah, and the remainder is extra/combined (mudraj) from the words of Saeed Bin al-Musayyib. In Sunan Al-Nasa’i it mentions the following at the end of the narration: “Israil differentiated it from Tariq, and so he did irsal (mursal) of the first part (in other words, made it from the words of the Prophet without mentioning the narrator), and made the second part from the words of Sa‘id”.

The second and third narrations are not suitable for use as evidence, this is because both chains come through Muhammad Bin ‘Abd al-Rahman Bin Libi, and it is sometimes said Ibn Abi Libi, who was not deemed as trustworthy except by Ibn Hibban. Ibn Hajr said in al-Taqrib: “weak, does a lot of irsal (not mentioning the name of the narrators in between)”, and al-Dhahabi said in Mizan al-‘I‘tidal: “Yahya said: his narration are not to be considered, and al-Daraqutni said he is weak, and another said he is not strong” and in al-Tathyil[szc2]  ‘ala ’l-Tahdhib: “Ibn abi Hatim said: Hamad from a man (in other words Ibn Umar), who said: I asked Malik about Muhammad b. ‘Abd al-Rahman who narrated from Saeed Ibn Musayyib, and he said: he is not trustworthy”.

As for those who deemed the report as Hasan such as Al-Albani, their conclusion is not accurate, since they relied upon additional witnesses to make this result. This cannot occur if the text contradicts that which is authentic, and it mentions at the end of both narrations that the Messenger of Allah  ordered them to rent with gold and silver, and yet it was reported in al-Bukhari from Rafi’,“As for gold and  silver they were not used at that time”, or in other words they were not used in transactions for renting land, even though renting land took place and gold and silver was available and they used to transact with it in issues other than renting land, and if the Messenger  had ordered them to rent with gold and silver then it would have taken place at that time, and he would have reported that. But he didn’t report that, and over and above that he reported that in fact gold or silver was not used for renting land at that time.

Accordingly the making Hasan of the report through additional witnesses (other narrations) is not correct since the end of the two narrations mentions “and ordered us to rent it with gold and silver”, and so this part of the two narrations remain weak and cannot be used as evidence.

Those who permit the renting of land also claim that the evidence for permitting land rental, is that the people used to do so, as well as the Ijma’ of the companions. As for the peoples’ transactions, it is narrated that Ibn Umar used to rent his land at the time of the Messenger of Allah , Abu Bakr (ra), ‘Uthman (ra) and part of the time in the governorship of Mu’awiyah, and Ibn al-Arabi al-Maliki narrated an Ijma’ of the companions upon the permission of renting land, which indicates that renting land is permitted.

The response to this is: the fact that people transact a certain way is not a Shari’ah evidence for its permission, but rather the evidence must be a Shari’ah text either from the Book or the Sunnah. In addition to that, the narration regarding Ibn Umar renting his land is not suitable for an evidence since once he heard the narration (prohibiting the renting of land) he stopped doing it. This has been confirmed by two narrations from him that he stopped renting land due to it being prohibited; in the narration from Rafi’ from Ammayah it is mentioned “ibn Umar stopped renting land”, and in the narration from Ibn Umar himself he said “We didn’t use to see any issue in share-cropping until we heard Rafi’ Bin  Khadij say the narration”, and the understanding from this is that he then saw a problem in share-cropping, and share-cropping is renting of land. Based upon this, the evidence regarding peoples’ transactions is rejected, and the use of Ibn Umar’s actions as proof is likewise rejected. As for the Ijma’ of the companions, which is claimed to be an Ijma’ upon the permission of renting land, it is rather Ijma’ upon al-musaqah (renting trees for a portion of their yields) based upon the Messenger of Allah  leasing the land of Khaybar to the Jews, and it is not an Ijma’ upon renting land. This is because Ibn al-‘Arabi was the one who narrated this Ijma’, and mentioned it in the explanation of the narration of Umar (ra) that the Prophet  did business with the people of Khaybar, and so the companions had an Ijma’ on the permission of this renting. Therefore, this is the Ijma’ that he is relating, which is an Ijma’ upon al-musaqah and not upon the renting of land, and so it cannot be used as evidence. Accordingly, it is not suitable to be used as an evidence to indicate the permission of renting land.

And those who permit renting of land claim that there is an Ijma’ of the companions upon the permission of renting land by gold and silver as an evidence, and the author of al-Fath wrote “And Ibn Munthir claimed that the companions agreed upon the renting of land by gold and silver”, and so this Ijma’ is an evidence for the permission of renting by gold and silver.

The answer to this is that the narrations related to the prohibition of renting land invalidate this Ijma’ since the prohibition was general, as the Prophet  said “Whoever has land should cultivate it, or let his brother cultivate it, and if not then give it up” (reported by Muslim from Jabir), and in the narration from Muslim from Abu Hurayrah who said that the Messenger of Allah  said “Whoever has some land, then he should cultivate it, or let his brother cultivate it, and if he refuses then his land is taken (from him)”. His  words “and if not then give it up”, and “if he refuses then his land is taken (from him)”, is evidence for the absence of permission for renting by gold and silver. In the same manner, the narrations limit the rule to two options at the exclusion of any others as has been previously explained: the words of the Prophet  “cultivate it or give it to your brother”,  gave him two options to choose between, and there is no third option apart from them, and the consensus mentioned permits a third option (gold and silver), which is contradictory. This requires tarjeeh (weighing up the evidences), and the narrations mentioned have a stronger chain than that of the consensus, and this is apart from the fact that consensus is only upon something that all have either agreed its permission or prohibition; as for something which has not occurred yet, then it cannot have an Ijma’ upon it, and renting land by gold and silver was not something that the people used to do, as narrated in Bukhari from Rafi’, “As for gold and silver, they were not used at that time”, and from Hanthala b. Qays “I asked Rafi’ Bin Khadij about renting land with gold and paper, and so he replied no problem with it, the people at the time of the Messenger of Allah  used to rent it upon what grew on the river banks, and what was around the front of the small rivers, and part of what was cultivated, and so some was destroyed and some was handed over, and the people did not used to rent except by this method, and therefore it was criticised, as for what is known and guaranteed then there is no problem with it”. These two narrations indicate that renting land by gold and silver did not take place at that time, which negates the presence of an Ijma’ upon something that took place. The Ijma’ of the companions is simply a method to uncover an evidence (kashif ‘an dalil), and not an opinion of theirs that they agreed upon after debating and agreeing upon it. Therefore their Ijma’ that the rule for this action is such and such means that they heard the Messenger  say that rule, or he  was seen to do it, or he  remained silent upon it (having known of it being done), and so the companions narrate the rule without relating the evidence. This cannot occur except with something that occurred in reality, since the Shari’ah was legislated upon actions that were done and occurrences that took place, and not upon academic hypotheses, and therefore it is imperative that the Ijma’ of the companions is upon something that was present. And as long as the presence of people renting land by gold and silver has been negated by authentic narrations, then this is a negation of the presence of any Ijma’ of the companions upon it. In the same manner when Umar (ra) said to a crowd of companions from the pulpit “so whoever revives a dead land then it is for him, and the one who fenced it off has no right to it after three years” (mentioned by Abu Yusuf in Al-Kharaj from Salim b. ‘Abd Allah). And so he prohibited the one who fenced the land from any rights after three years, since his word “right” is an indefinite noun in the context of a negation which is therefore general and encompasses a negation of all rights. So, if he was allowed to rent it by gold and silver, it wouldn’t have been taken from him after three years, and Umar (ra) said this and acted upon it in front of the sight and hearing of the companions and none of them refuted him and so it is a consensus.

And those who permit the renting of land say that the evidence for its permissibility is the narration from Ibn ‘Abbas who said “Truly, Allah did not prohibit share-cropping. He said for one of you to grant his brother is better for him than to take something fixed” (agreed upon). Ibn Maja mentioned the narration “from Ibn Abbas, that he heard people increased renting land, and said Glory to Allah, the Messenger of Allah only said “One of you should grant it to his brother” and did not prohibit renting it”, and in another report from Ibn ‘Abbas “The Messenger of Allah did not prohibit share-cropping but he ordered people to be kind with each other by his  words “Whoever has some land, then he should cultivate it, or let his brother cultivate it, and if he refuses then his land is taken (from him)” (reported and authenticated by Al-Tirmidhi from Ibn ‘Abbas), and in the same manner what is reported from Thabit, “The Messenger of Allah  prohibited share-cropping and ordered renting and said no problem with that”  (as reported by Muslim). And so these narrations indicate the permission of renting.

The answer to this is that the narration of Ibn Abbas in all of its reports is information of his understanding of the words of the Messenger , and not a report from the Messenger . They are an explanation that he understood that the prohibition of renting land by the Messenger  was not for tahrim, and so he said “did not prohibit it”. And it is explicitly mentioned by him in the second report, since it is clarified he understood it from the words of the Messenger , as he explained his understanding by mentioning the narration which he had understood from when he said “did not prohibit share-cropping but he ordered people to be kind with each other by his (saw) words…”. As long as it is the understanding of Ibn ‘Abbas and not a narration from the Prophet  then it is not considered to be a proof, and cannot be used as evidence. As for the narration of Thabit who said “and ordered renting”, this contradicts the other narration “The Messenger of Allah prohibited the leasing of land” and the other narration “The Messenger of Allah prohibited any rent to be taken for land, or any share of it (crops)” (reported by Muslim from Jabir), since his words “and ordered renting”  is general, encompassing all types of renting, and his words “the leasing of land”  and “any rent to be taken” are also general; in other words the order to rent is general and the prohibition is general, and this cannot be reconciled, since they are both general. It is not the case that one of the two is general and the other specific, or general from one angle and specific from another, and the other is general from another angle and specific from an angle other than the narration and so on...such that reconciliation between the evidences could have been possible. Rather the generality of the order and prohibition are equal, and so tarjeeh is necessary and so the prohibition is given precedence and the narration ordering renting is rejected because if two texts contradict then the precedence is given to the prohibition ahead of the order due to his  words “Leave what causes you doubt for that which does not cause you doubt” (reported by Al-Tirmidhi who said it is Hasan Sahih), and accordingly the use of these narrations as evidence has been negated.

Those who claim that renting land is permitted also state that the evidence for its permission is what has been reported by Abu Dawud that Zayd Bin Thabit said “May Allah forgive Raafi Bin Khadij, I know more about that than Rafi’, he heard the Prophet  when two men (from the Ansar) were fighting over it and so he  said “If this is your issue then do not rent the farms””.

In other words Zayd b. Thabit said he knew more about that (meaning renting land) than Rafi’, and that when the Prophet  heard two men had fought so he  said “If this is your issue, then do not rent out the farms”. And al-Bukhari reported from Amru Bin Dinar who said “I said to Tawus, if you left behind al-mukhabara (share-cropping) since they claim that the Prophet  prohibited it. He said More knowledgeable than them (intending Ibn ‘Abbas) told me that the Prophet  did not prohibit it and rather he said “For one of you to grant his brother is better for him than to take a fixed kharaj upon it””, and al-kharaj linguistically means leasing of the land. So these two narrations indicate the permission of renting.

The reply to this is that the narration of Zayd does not indicate the permission of renting land, but rather it indicates its prohibition, and as for the understanding derived from the condition in his words “If this is your issue”,  this is voided by the narrations which comprehensively prohibit renting for farming, and also it is voided since it falls under the usual situation – meaning that renting in the manner that they used to would normally lead to disputes and differences since some land is more fertile than other. This is similar to the voiding of the condition in His (swt) words, “And force not your maids into prostitution, if they desire chastity” (TMQ 24:33), so this condition is voided as it falls under the usual situation – most of the time their maids hated prostitution, and so this understanding, or this understanding derived from the condition, is voided since it was merely a description of what was the case in usual circumstances (that a woman would hate to be forced into prostitution), and it also voided the texts which prohibited fornication generally and were not limited.

As for the second narration from ‘Amru b. Dinar, likewise it does not mean “the permission to grant and the permission to take rent, but granting is better” ; rather it prohibits taking the rent. This is because the sentence “to grant his brother is better for him than to take a fixed kharaj upon it” is an informative sentence which conveys a request, in other words it is as though he  said “Grant your brother and don’t take kharaj from him”, and so it contains a request to grant, in other words give, without recompense, and prohibiting take kharaj or in other words rent. It requires an indication to explain the type of prohibition “request to leave”, and the indications are in other narrations which convey that it is a decisive request since they prohibit the taking of rent comprehensively such as his words  “Whoever has land, he has to plant upon it or let his brother plant upon it, and he cannot lease it for a third or quarter of its yield or for a specified (amount of) food” (reported by Abu Dawud). And “Whoever has land then he should cultivate it or grant it to someone else, and if he does not do that then it is taken from him” . And from Rafi’ “The Messenger of Allah prohibited renting farms” (agreed upon). And “The Messenger of Allah  forbade the land to be used for a rent or share of the crop” (reported by Muslim from Jabir). And it is reported that ‘Abd Allah b. Umar met Rafi’ b. Khadij and asked him and so he replied: I heard my uncles, and they were from those who saw Badr, say: “The Messenger of Allah prohibited renting land” (by Muslim).

Those who claim that renting land is permitted say that the proof for its permissibility is what is reported by Ibn Umar “The Messenger of Allah  contracted the people of Khaybar over half of what was produced of fruit or crops”, and Abu Ja’far said “The Messenger of Allah  contracted the people of Khaybar over half, and then Abu Bakr (did the same), and then Umar, and then Uthman and Ali and then until today they give a third and a quarter” (mentioned by Ibn Qudamah in al-Mughni and he said it is Sahih mashhur). And al-Bukhari reported from Ibn Umar “The Prophet  contracted the people of Khaybar upon a half of what they produced from the land, in terms of crops or fruits, so he used to give his wives one hundred loads, eighty of dates, and twenty of barley, then Umar divided Khaybar and gave the wives of the Prophet  the choice to be given land and water from it, or to continue taking the loads, and so some of them chose the land, and others the loads, and Aaisha chose land”. Therefore this narration indicates the permission of renting land for a part of its yields, and so indicates the permissibility of renting land absolutely.

The reply to this is that the land of Khaybar was wooded land irrigated by water, and between the trees was a flat land whose area was less than that of the area of the wooded land. It was this land that was cultivated, and this is supported by what was mentioned in some of the narrations “The Prophet  contracted the people of Khaybar over what they produced from the palm trees and trees”  (reported by al-Daraqutni from Ibn Umar). And in the narration of Ibn Abbas “its land and its palm trees”.  Accordingly, the reality of what the Messenger  did when he  leased Khaybar is that it was musaqah (renting trees for a portion of their yields) and not share-cropping, or in other words renting of a wooded land and not the rental of the land alone, rather the rental of trees and the land with them, which is musaqah, and this is permitted without any difference. It is permitted to rent a tree for a fixed portion of its fruits in exchange for someone watering and harvesting them, and the land is rented since the tree is on the land, on the condition that there is more land with trees than empty land in order that the rental be for the trees and not the land. So this is musaqah which is permitted, and what is forbidden is the renting of land and not the musaqah. A detailed look at the narration in Bukhari reveals that the land was mainly full of trees, and the land with trees was greater than the empty land, and there was water there to irrigate the trees, which means it was musaqah. Look at the words in the narration, “so he used to give his wives one hundred loads, eighty of dates, and twenty of barley”, and his words, “to be given land and water from it”, which indicates that the land of Khaybar used to have trees, and that its rental was on the basis of musaqah, and not share-cropping nor renting of the land.

Based upon that, the narration cannot be used as an evidence for the permissibility of renting land, and therefore its use is negated.

In summary therefore the prohibition of renting is an issue which is as clear as can be. And accordingly the evidence for the article has been proven with the most prominent manner of deduction.

As for musaqah – the renting of trees for a portion of their fruits or the renting of trees with the land they are on for a portion of the fruit and crops, as long as there are more trees than empty land - the proof for this is the Shari’ah meaning of musaqah and the permission for musaqah in the narrations reported regarding it. Al-Bukhari reported from Abu Hurayrah who said “The Ansar said to the Prophet  Divide the palm trees between us and our brother. He said: No. So they said: Give us the assistance and we will give you a share of the fruits. They said: We heard and we obeyed”. And al-Bukhari extracted through Nafi’ that ‘Abd Allah b. Umar informed him “The Prophet  contracted the people of Khaybar upon a half of what they produced from the land, in terms of crops or fruits, so he used to give his wives one hundred loads, eighty of dates, and twenty of barley, then Umar divided Khaybar and gave the wives of the Prophet  the choice to be given land and water from it, or to continue taking the loads, and so some of them chose the land, and others the loads, and Aaisha chose land”, and Muslim and Abu Dawud and Al-Nasa’i reported “The Messenger of Allah  gave the Jews the date palms and land of Khaybar, for them to work upon it with their wealth, and the Messenger of Allah  would have half of its fruits”. Ahmad and Ibn Maja reported from Ibn ‘Abbas, “The Prophet  gave Khaybar’s land and date palms as a division over half”. These narrations indicate that musaqah is the renting of trees alone for part of their fruits, as is apparent from the narration of Abu Hurayrah regarding the actions of the Ansar. They also indicate that musaqah is the renting of trees with land for a portion of the fruits of the trees and the yield of the land, as is apparent from the narration of Nafi’ from ‘Abd Allah b. Umar “contracted the people of Khaybar upon a half of what they produced from the land, in terms of crops or fruits”, and likewise from the narration of Muslim, Abu Dawud and Al-Nasa’i “date palms and land of Khaybar” and the narration of Ibn Abbas “Khaybar’s land and date palms”. So they indicate that the renting is either of the trees alone, or the trees and the land with them. Similarly they indicate that the land should be less than the trees, as is clear from the narration of Nafi’ from ‘Abd Allah b. Umar “hundred loads, eighty of dates, and twenty of barley”. Accordingly it is confirmed that the reality of musaaqah is renting the trees for a portion of its fruits, or renting the trees and land for a portion of the fruit and the crops, as long as the trees are more than the land. Additionally these narrations are evidence for the permissibility of musaqah.

Article 136

Everyone that owns land is compelled to use it, and those that require financial help are given money from the Bayt al-Mal to enable them to utilise their land. If anyone neglects utilising the land for three years continuously, it is taken from them and given to someone else.

The evidence is what Abu Yusuf reported in Al-Kharaj from Salim b. ‘Abd Allah that Umar b. al-Khattab (ra) said from the pulpit: “whoever revives a dead land then it is for him, and the one who fenced it off has no right to it after three years”. Umar (ra) said this in the sight and full hearing of the companions, and none of them rebuked him and so it is a consensus. This is explicit evidence that if someone revives a dead land, or places stones or anything which shows his possession of it upon it, then he takes possession of it. However, if he does not utilise the land for a period of three consecutive years then it is taken from him. The one who revived it and the one who fenced it off are the same from the angle of ownership, and from the angle of it being taken away from them. It cannot be said that the issue of ownership is restricted to the one who revives “whoever revives”, and that the issue of dispossessing it is restricted to the one who fenced it of “and the one who fenced it off has no”, with the understanding that ownership is for the reviver, and taking the land away if it was neglected is restricted to the one who fenced if off and excludes the reviver. This is because the wording is from the metaphorical style of deletion (hathf[szc3] ), and so the one who fenced also falls under ownership, and the reviver under the ruling of dispossession: as if Umar (ra) said “whoever revived a dead land then it is for him, and he has no right to it after three years, and whoever fenced a dead land then it is for him and he has no right to it after three years”.

Though Umar’s (ra) words mentioned dead land that is taken into an individual’s possession through reviving it or fencing it off, in other words by placing his hand upon it, and that if he neglects it for three years then it is taken from his possession, there are other texts which are reported about land which is not revived and fenced, and not dead, rather as part of a cultivated land that was granted to people. It is reported from Yahya b. Adam through the chain of ‘Amru b. Shu’ayb who said “The Prophet  granted land to some people from Muzaynah or Juhaynah and they neglected it. Other people came and cultivated it. Umar said: If the land was granted by me or by Abu Bakr, I would have returned it (to those people). But it was granted by the Messenger of Allah ”.

What is meant is that more than three years had passed, or in other words if it had been granted from the time of Abu Bakr (ra), three years would not have passed yet, and similarly if it had been granted in the time of Umar (ra), and so Umar (ra) would have returned it to the one it had been granted to. However, it was the Prophet  who granted it, and so more than three years had passed and so it was not possible to return it, rather Umar (ra) confirmed its ownership to the ones who had revived it. And it is apparent from the narration that it occurred more than a year after Umar (ra) took the leadership, and it was land granted from the time of the Messenger of Allah , in other words, it was granted more than three years earlier, and for that reason Umar (ra) did not return it; it is also clear that the event was regarding land that had been granted and was not revived or fenced land.

Abu ‘Ubayd reported in the book of al-Amwal from Bilal Ibn al-Harith al-Muzni, that “the Messenger of Allah  had granted him all of al-Aqiq. He said that during the time of Umar, he (Umar) said to Bilal, ‘The Messenger of Allah  did not grant you the place to fence it away from the people but rather to use it. So take of it as much as you can afford and return the rest”. It is clear from this that neglect of the land due to the lack of capability to utilise it is a cause for taking the land away, as understood and acted upon by Umar (ra), and the limit of neglect before it is mandatory to take the land is three years as mentioned in the previous words of Umar (ra).

It cannot be said that this is only regarding land that has been granted, since the issue was not a question nor an event that occurred which the text was specific to, rather it is general, and is general for all possessed land. Therefore the cause for taking away the possession of land if it was neglected is not because it was land that was originally granted but rather because it was neglected. This is confirmed by the words of Umar (ra), “whoever neglected a land for three years and did not build upon it, and then someone else came and built upon it then it is theirs” (reported by Yayha b. Adam in Al-Kharaj and Ibn Zanjawi in al-Amwal from ‘Amru b. Shu’ayb), and his word “a land” is an unrestricted term which encompasses all types of possessed land, irrespective of whether it was dead and then taken into ownership through revival and fencing, or if it was built upon and taken into ownership by being granted or inheritance or buying or a gift…the rule is applied to it – it is taken if it is not used for three years.

This indicates that the land which was possessed by an individual, irrespective of whether that was by revival, fencing, granting, or purchasing…is taken away from the owner if he left it unutilised for three consecutive years, as was indicated by the action of Umar (ra) in the incident with Amru Bin Shu’ayb and by his words “whoever neglected a land”, and by the incident of Bilal, and it is not known that any of the companions rebuked him over that even though it is from the things that are rebukable, because it is forcefully taking a cultivated land from its owner without giving anything in exchange, and the one taking it is the Khalifah; it is accordingly Ijma’ of the companions. This is because the Ijma’ sukuti (silent Ijma’/Ijma’ of consent) is when one of the companions does an action that would normally be rebuked in front of a group of them, and none of them rebuke it, and so it is a Shari’ah evidence. Based upon this the cultivated land that is owned by an individual, is taken from them by compulsion without exchange if they left it uncultivated for a period of three consecutive years.

From this, it is clear that the rule encompasses all land, regardless of whether it was possessed through revival, grant, inheritance, purchase or anything else – every land which is neglected for three years is compulsorily taken back by the State from its owner without any compensation.

The issue of being three consecutive years is understood from the text, which applied to taking the land and to its neglect for three years. He said “Whoever neglected a land for three years”, and so the issue of neglect applies after three years, and it is understood from this that the three years are consecutive. This is confirmed without any lack of clarity by his words “and the one who fenced it off has no right to it after three years”, and so the negation applies “after three years”, and it is not said “after three” if they were not consecutive, and would only be used if they were consecutive following one after the other.

As for giving the farmers help from Bayt al-Mal (treasury) to enable them to cultivate their land, its evidence is what Umar (ra) did in Iraq. When he conquered Iraq he left the land in the hands of its inhabitants, and did not divide it amongst the fighters even though it was part of the booty. He gave the farmers money from the Bayt al-Mal (treasury) in order to strengthen them to cultivate their land even though they had not yet embraced Islam, even though farmers in their characteristic as farmers are not from those who deserve anything from Bayt al-Mal (treasury) since as long as they own land they cannot be counted as being poor. Anything similar to these two issues would normally be rebuked due to their contradiction with the rules regarding war booty and the rules regarding Bayt al-Mal (treasury). As for the first issue which is leaving the land which was taken as booty with those who cultivated it, and not dividing it amongst the fighters, there were companions who rebuked Umar (ra), and a discussion took place between them. As for the second issue, which was giving the farmers in Iraq money from the Bayt al-Mal (treasury) in order for them to cultivate their land, none of the companions rebuked Umar (ra), and so it is an Ijma’ (consensus) upon the permission of giving farmers what is required from Bayt al-Mal (treasury) to enable them to cultivate their land.

These are all the evidences for this article.

Article 137

There are three categories of Public Ownership:

a. Public utilities, such as the open spaces in the towns.

b. Vast mineral resources, like oil fields.

c. Things which, by their nature, preclude ownership by individuals, such as rivers.

The evidence of the article is the evidence for article 129, and so the evidence for clause “c” is the affirmation of the Messenger  upon the people sharing the ownership of the public pathways, and his  words “Mina is a way station for whoever gets there first” reported by Al-Tirmidhi from Aaisha (ra), and he said it is Hasan Sahih, and Ibn Khuzaymah who authenticated it; in other words Mina, which is the famous place in the Peninsula, is a public property for all the people. So whoever gets there first and rests there, they have the right to it.

As for clause “b”, its evidence is what was reported from ‘Amru b. Qays “I asked the Messenger of Allah  to grant me a salt laden land and so he granted it to me. It was said O Messenger of Allah , it is comparable to a countless water – in other words it does not deplete – and so the Messenger of Allah  said “In which case, no”” (reported by Al-Nasa’i), and the groundwater is that which is not depleted, and so the salt laden land was compared to the groundwater which is not depleted. The intention here is not the salt but rather the minerals, the evidence being that when he  knew that it was non-depleting he  prohibited it, though he  initially knew that it was salt, and granted the land initially, and so the prohibition is due to it being a vast mineral resource. Abu ‘Ubayd said “When the Prophet  realised it included ground water, he revoked it, because it is the Sunnah of the Messenger of Allah  in relation to pasture, fire and water, to make all the people partners in their possession. So he disliked limiting possession to one person at the exclusion of others”. Accordingly, every mineral which is non-depleting, i.e. its size is not evaluated as a small quantity, is considered to be a public property. Had it been limited to a small amount then it is not considered to be a public property, as evidenced by the narration.

As for clause “a”, its evidence is the words reported by one of the companions of the Prophet  Abu Kharras who said: the Messenger  said “The Muslims are partners in three: water, pastures and fire” (reported by Ahmad), and his  words “Three are not denied (to anyone): water, fire and pastures” (reported by Ibn Maja from Abu Hurayrah). This narration has an Illah that its prevention is because they are from the public utilities. So the Messenger  permitted individual ownership of water in al-Ta’if and Khaybar, and they owned it at the expense of others in order to irrigate their crops and gardens, and so if there was absolute partnership in water, he  would not have allowed individuals to own it. Therefore from the words of the Messenger  “The Muslims are partners is three: water…”, and “three are not denied” along with his  permission for individuals to own water, an Illah can be deduced that the partnership in water, pastures and fire, is due to the fact that they are public utilities that the public cannot live without, and so anything that is considered to be a public utility such as the open space in the towns, the areas for wood and the grazing pastures are all public property.

This is the evidence for public ownership.

As for the fact that these three alone constitute publicly owned property, this is from examination. Through the examination of the evidences regarding public ownership, it was found that they were limited to these categories, and so subsequently the evidence for this article has been made clear.

Article 138

Factories by their nature are private property. However, they follow the rule of the product that they are producing. If the product is private property then the factory is considered to be private property, such as textile factories. If the product is public property then the factory is considered public property, such as factories for iron ore production.

This article has two parts: Firstly, the origin is that factories are owned by individuals, and secondly, that the factory takes the rule of the product that it produces.

As for the first part, its evidence is that “the Messenger  had a ring made” reported by al-Bukhari from ‘Abdullah b. Umar, and a pulpit as reported by al-Bukhari from Sahl b. Sa’d al-Sa’idi, and they were produced by individuals who personally owned the factory. Additionally, people used to have things made for them at the time of the Messenger  and he  remained quiet over it, to the point that some of them used to make weapons, like Khubab who used to make swords in jahiliyyah (the era of ignorance before Islam) and continued after he embraced Islam, and his story is mentioned in the Sirah of Ibn Hisham with Al-‘As Bin Wa’il al-Sahmi when he bought a sword from Khubab. When Khubab came to al-‘As to confirm the price he joked with him saying: I’ll pay the price for it in Paradise. This indicates that he  affirmed individual ownership of factories, irrespective of whether they were weapon, mineral or carpentry factories or anything else. It is not reported that he  prohibited the ownership of factories, and there is no text which states that factories are public property, in the same way that there is no text which states that factories belong to the State. Therefore, the evidence that factories can be private property remains general.

This is the evidence for the first part. As for the second, its evidence is the rule “The factory takes the rule of what it produces”, and this rule is deduced from the Prophetic narration; it is reported that the Messenger  said “Allah cursed the one who drinks alcohol, and the one who ordered its squeezing (of the grapes etc.) and the one who squeezes it…” which is part of a narration in Abu Dawud from Ibn Umar that is authenticated by Ibn al-Sakan, and the complete narration is “Allah cursed the one who drinks alcohol, and the one who ordered its pressing (of the grapes etc.) and the one who presses it and the one who carried it and the one it was carried to.”, and so the prohibition of pressing wine is not a prohibition of pressing itself, but rather it is a prohibition of pressing wine specifically. Therefore, pressing is not forbidden (haram), but rather it is the pressing to produce alcohol which is forbidden. So pressing is forbidden due to the forbiddance of alcohol, and so it took the rule of the thing that it was being pressed for, and so the prohibition applies to pressing, or in other words the process of pressing, and so it applies to the instruments used for pressing. Therefore the production takes the rule of the product that it is producing, and the factory takes the rule of the product that it manufactures, and this is the evidence that the factory takes the rule of what it produces, in other words it is the evidence for this rule, since the forbiddance of the factory came from the forbiddance of the product that it produces. The narration is not evidence that factories are public property; rather it is only evidence for the factory taking the rule of the product that it produces. This is the evidence for the second part; in other words the rule deduced from the narration is the evidence for this part.

Factories are therefore judged upon this basis; so if the product they produce is not from the materials which are counted as public property, then these products are owned individually, such as textile factories, because the Messenger  affirmed the production of swords, clothes and shoes which are all things that are individually owned. If the factories were producing materials which are counted as public property, such as factories to extract oil, and steel, then they are considered to be public and not private property. This is because when the Messenger  prohibited the production of alcohol, he gave the factory the rule of the material it produces, which is the evidence for this article.

Article 139

The State is not permitted to transfer private property into public property, since public property is confirmed by the nature and characteristic of wealth and not by the opinion of the State.

The evidence are the words from the agreed upon narration of the Messenger  through Abu Bakra “Your blood, wealth and honour are sanctified like the sanctification of this day of yours, in this land of yours, in this month of yours”, which is general and encompasses every person, and so it is forbidden to take the wealth of any individual, whether Muslim or not, except for a legislated reason. Therefore it is forbidden for the State to take the wealth of any individual except for a Shari’ah reason. Accordingly, it is forbidden for the State to take the wealth of any individual into its possession on the grounds of benefit, or to make it public property for the benefit of the Ummah, since the narration forbade that and benefit does not make it permitted, as its permission would require a Shari’ah evidence. It cannot be said that the Imam can do that as part of governing the interests of the Ummah since he has the right to manage the affairs. This is because the management of the affairs is the undertaking of the interests of the people according to the Shari’ah rules, and not the undertaking of the peoples’ interests according to the opinion of the Khalifah, and so the Khalifah has no power at all to permit whatever Allah (swt) forbade, and if he did so the action would be considered an injustice which he would be taken to court for, and the wealth would be returned to its owner.

Based upon this, what is called nationalisation is not from the Shari’ah in any shape or form, since if a property had the nature and characteristic of public property then it would be obligatory upon the State to make it part of the public property, and it would have no choice in that, and so this would not be considered nationalisation but rather the nature and characteristic of the property meant that it was in reality part of the public property, and it would be forbidden for the State to allow it to be privately owned. As for if the property was owned by an individual and did not have the characteristic or nature of public property, then it would be forbidden for the State to nationalise it, and if it did so it would be taken to court and the property would be returned to its owner. This is since the Messenger of Allah  took the salted land back from Abyad Bin Hammal after he  had granted it to him, once it became apparent that it was not depleted.

Article 140

Every individual from the Ummah has the right to utilise anything from public property, and it is not allowed for the State to permit someone to individually possess or utilise it.

Ummah in this article is the citizens in Dar Al-Islam, or in other words all those who carry the citizenship of the State, irrespective of whether they were Muslim or Dhimmi (non-muslims), and the State is compelled to take care of them all the time, which includes providing the basic needs for them. This is in accordance with the Shari’ah rules they are subject to. Amongst them is that every individual from the subjects has the right to utilise anything from the public property, and the Dhimmi and Muslim have the same rights to utilise the public facilities.

It cannot be said that the narration “the Muslims are partners in three” means that the public property is for the Muslims alone, rather this narration and similarly the narration “the people are partners” are specified by the narration of Muslim through Buraydah which mentions “Then invite them to migrate from their abode to the abode of the Muhajirin and inform them that if they do so, they shall have all the privileges and obligations of the Muhajirin” and the Dar al-Muhajirin is the Dar Al-Islam, and so this text limits the rights of citizenship to those who migrate to the Dar Al-Islam, or in other words they carry the citizenship of Dar Al-Islam.Therefore, this does not encompass all the Muslims in the world but rather only those in Dar Al-Islam, and in the same way, non-Muslims who live in Dar Al-Islam and carry citizenship are not exempted, because the narration of Buraydah makes enjoyment of the right of citizenship conditional to migration to Dar Al-Islam. Accordingly, the Muslim in Dar Al-Islam, and the Dhimmi who lives in Dar Al-Islam and carries its citizenship fall under the application of this article.

This is for the citizens in Dar Al-Islam; they can utilise from the public property, and none of them should be prevented from doing so irrespective of whether they were Muslims or Dhimmis.

The issue of the Muslim subjects utilising the public property is clear.

As for the Dhimmi, there are several texts and incidents from the time of the Messenger    and the righteous khulafaa’ which all indicate this.

-          They used to walk in the markets, buying and selling, and the markets are public property. Ahmad reported from Ka’b Bin Malik “While I was walking through the market, a Christian came with some food to sell, saying: who will direct me to Ka’b Bin Malik?” and this indicates that the Muslims and Dhimmis used to visit the markets for their needs in the same manner.

-          They used to utilise the water, fire and pastures. Ibn Maja reported from Abu Hurayrah that the Prophet  said “Three are not denied (to anyone): water, fire and pastures”. The companions agreed that the Christians of al-Sham could drink from the rivers with the Muslims, and similarly the same applied to those who remained Magians in Iraq and Bahrain, and similarly the Coptics in Egypt used to drink and irrigate from the Nile. They would all cut wood from the forests, irrigate their crops from the public rivers  and shepherd their flocks in the public pastures. Today they would utilise petrol and its derivatives and electricity, since they are both from the “fire” mentioned in the narration.

-          They have the right to revive dead land, due to what is reported by Ahmad and Al-Tirmidhi with an authentic chain from Jabir who said that the Messenger of Allah  said “whoever revives a dead land, then it is for him” and what was reported by al-Bukhari from Aaisha (ra) that the Prophet  said “whoever inhabits a land where there is no one, then he has more right to it”. And what is reported by Abu Dawud At-Tayalisi from Aaisha (ra) who said that the Messenger of Allah  said “The slave is the slave of Allah, and the land is the land of Allah, and whoever revives any part of dead land then it is his, and the oppressor has no right of possession”.

All of these evidences are general and encompass all citizens, irrespective of whether they were Muslims or not.

-          Also, all of citizens whether Muslim or Dhimmi can use the methods of transportation from land, sea and air. As for the land, the Dhimmis used to use it at the time of the Messenger of Allah . Al-Tirmidhi reported from Aaisha (ra) who said “The Messenger of Allah was wearing two symmetrical heavy dresses, and if he sat and sweated they became heavy on him, and so clothing arrived from al-Sham to a named Jew, and so I said: if you went to him and bought two dresses from him which were soft…”. As for the sea, they used to use it in the same manner as the Muslims at the time of the companions, and today that is analogous to the use of the airways.

-          They can also use the general paths and the public  communications as they are analogous to the public transportation.

This is the evidence for the first part of the article that all of the individual subjects have the right to utilise the public property.

As for the second part, which is that it is not allowed for the State to permit someone to individually possess or utilise it – its evidence is the narration of Abyad Bin Hammal when the Prophet  granted him some land which was salt laden, and when he  was informed that what he  had given him was similar to non-depleted water he  took it back from him. Al-Tirmidhi reported from Abyad Bin Hammal that “He came to the Prophet  and asked him to grant him a salt laden land, and he granted it to him. And when he left, one person in attendance with the Prophet said “Do you know what you granted him? You granted him the non-depleted water”. He  then took it away from him”. The other evidence is that which Al-Tirmidhi reported from Aaisha (ra) and he said it is Hasan Sahih, and Ibn Khuzaymah reported in his Sahih, that the Messenger  said “Mina is a way station for whoever gets their first”, and the narration of al-Sa’ab[szc4]  b. Jathamah with al-Bukhari “No protection (Hima) except for Allah and His Messenger”.

It is clear that most of the capitalist monopolies and rich companies and individuals who have imaginary wealth, have managed to do so because of the special privileges they get to exploit the different types of public property, such as gas, petrol and the other mineral resources, and the communications, transport, water and other things.

Article 141

The State is allowed to protect some of  the dead land and any part of public property for any public interest.

The evidence is the report that the Prophet  said “No protection (Hima) except for Allah and His Messenger” reported by al-Bukhari from al-Sa’ab Bin Jathama, and the protection is to protect something that was for the general Muslims which then prevents the people from it, and to take it for themselves and so the Messenger  prohibited that, or in other words he  forbade it. Therefore it is not permitted for any person to do it including the Khalifah for himself, because he cannot permit what Allah (swt) forbade. From this understanding, it is prohibited for the State to give ownership to someone for anything that is part of public property, which would lead to the prevention of others benefiting from it. As for the State itself, in other words the Khalifah, it is permitted for him to take something from the dead land and public property for the sake of the interests of the Muslims, and not his own, and the evidence for this is what was reported from Ibn Umar who said “The Prophet  protected al-Naqi’ for the horses of the Muslims” (reported by Ibn Hibban), and al-Naqi’ is the place where the water settles and so there are a lot of plants due to the water; in other words it is a fertile place for grazing. And it is reported from Abu ‘Ubayd from Amir b. ‘Abd Allah b. al-Zubayr, I consider it to be from his father, who said “A Bedouin came and said O Amir of the believers, we fought over our land in Jahiliyyah, and we became Muslims while it is still under our possession, – will you protect it? Umar bowed his head, blew and twisted his moustache – and if an issue would trouble him he would twist his moustache and blow – so when the Bedouin saw what he was doing he repeated himself, and so Umar said: The property is the property of Allah, and the Slaves are the Slaves of Allah, I swear by Allah had I not been charged with that in the Path of Allah I would not have protected a hand-span of the land”. The narration is explicit in the permissibility of the State protecting; in other words it is permitted for the State to do something specific with what falls under public property such as the grazing pastures in order to fulfil the interests of the Muslims, and the companions after the Messenger  used to do the same, and so it has become a normal practice for every Khalifah.

Article 142

Hoarding of wealth is prohibited, even if Zakat is paid upon it.

Its evidence is the words of Allah (swt) “And those who hoard gold and silver and do not spend them in the Path of Allah then announce to them a painful torment” (TMQ 9:34), which is an evidence for the unrestricted forbiddance of hoarding wealth. Though this verse was revealed to do with the People of the Book, its words are general, and we are addressed by them as is clear from the beginning of the verse which says “O you who believe, Truly, there are many of the rabbis and monks who devour the wealth of mankind in falsehood, and hinder from the Path of Allah, and those who hoard gold and silver…” (TMQ 9:34).

The evidence that the verse forbade the hoarding of gold and silver in a general, unrestricted way irrespective of whether the Zakat had been paid upon it or not is as follows:

First: the generality of this verse. The text of the verse, from both its wording and understanding, are evidence that the prohibition of hoarding wealth from gold and silver is a comprehensive prohibition. So, the opinion of permitting hoarding after the payment of Zakat is departure from the ruling of the verse whose indication is definite. This cannot be accredited except with evidence which would change the meaning of the verse or abrogate it, and there is no authentic text which takes it from its original meaning, and it is not possible that there could be evidence which takes it from its original meaning since it has a definite indication. So nothing remains except that there could be evidence which abrogates it, and there is no evidence which abrogates it. Therefore, its ruling remains confirmed, which is the forbiddance of hoarding wealth, even if Zakat was paid upon it; in other words the unrestricted forbiddance of hoarding.

Second: Ahmad reported with an authentic chain from Abu Umamah who said: “A man from the Ahl al-Suffa who used to live in the masjid died, and a dinar was found in his garments, and so the Messenger of Allah  said “cauter”, then another died and two dinars were found on him and so the Messenger of Allah said “Two cauters””, and this means that it is completely forbidden to hoard gold and silver, even if it was only two or even just one dinar, as long as it is being hoarded, in other words the storage of wealth without a need that it would be spent on. And the Messenger  said that in respect to these two men because they were from those who used to live on charity and yet they had gold on them, and so he said “cauter” and “Two cauters”, alluding to His (swt) words “On the day when that (hoarded wealth) will be heated in the fire of Hell and with it will be branded their foreheads, their flanks and their backs” (TMQ 9:35), which is part of the verses of hoarding; in other words he  was alluding to the verses regarding hoarding. This is an evidence for the complete, comprehensive forbiddance of hoarding irrespective of whether it amounted to the value which Zakat should be paid upon or not, and irrespective of whether Zakat was paid upon it or not; so any hoarding is prohibited.

Third: The conjunction in His (swt) words “and do not spend them in the Path of Allah” (TMQ 9:34) contrasts with His (swt) words “And those who hoard gold and silver” (TMQ 9:34) and thus indicating accordingly that the verse covers two rules: the first being the hoarding of wealth and the second the lack of spending in the path of Allah (swt). The text of the verse indicates the threat of a severe punishment connected to these two issues - in other words for those who hoard gold and silver and those who do not spend them in the path of Allah (swt), then announce to them a severe punishment. Therefore, it becomes clear that he who does not hoard, but does not spend in the path of Allah (swt), is encompassed by the threat, and likewise the one who spends in the path of Allah (swt) and yet he hoards wealth is also encompassed by the threat. Al-Qurtubi said: “Whoever does not hoard, and withholds spending in the path of Allah, must also be the same”. The intention of the words “in the path of Allah” in the verse is Jihad, since it is mentioned alongside spending. When the words “in the path of Allah” are connected to spending, then their meaning is Jihad, unless there is an indication found which takes it away from that meaning. Accordingly, the words “and do not spend them” are not suitable as an evidence that if they hoard wealth and spend from it in the path of Allah (swt) they are not included in the punishment, since the meaning of the verse is not, and whoever hoards wealth in that they do not spend it in the path of Allah (swt) then announce to them a severe punishment, with the conjunction being explanatory and so therefore if the hoarded wealth was spent in the path of Allah (swt), the hoarder would not be punished. Rather, the meaning of the verse is that whoever hoards then announce to them a punishment and whoever does not spend in the path of Allah (swt) then announce to them a punishment. The conjunction is a conjunction of dissimilarity and not explanatory. Therefore the forbiddance of hoarding is unrestricted, irrespective of whether some of it was spent in the path of Allah (swt) or not, and the issue of the forbiddance of hoarding is a different issue than the forbiddance of not spending in the path of Allah (swt). Accordingly, it is clearly seen that the verse forbids hoarding wealth even if Zakat had been paid upon it and even if some had been spent in the path of Allah (swt).

Fourth: Bukhari reported from Zayd b. Wahb who said “I passed by Abu Dharr in Al-Rabtha so I asked him: What brought you to this place? He replied: We were in Ash-Sham where I had a dispute with Mu’awiyah over “And those who hoard gold and silver and do not spend it in the way of Allah” (TMQ 9:34) and so Mu’awiyah said: “This was revealed concerning the People of the Book” so I said “It was revealed concerning them and us”, and this was the issue between us. So he wrote to Uthman complaining about me, and so Uthman wrote to me telling me to come to Madinah, so I came there and the people gathered around me as though they had never seen me before. I mentioned this to Uthman, and so he said “If you wish, withdraw from here and remain close”. This is what led me to this place, and if an Abyssinian was placed over me I would listen and obey”. Therefore the difference between Abu Dharr and Mu’awiyah was regarding who the verse was revealed about, and not its meaning, and if Mu’awiyah or ‘Uthman (ra) had an authentic narration which mentioned that if Zakat was paid from a wealth it would not be considered a hoard, Mu’awiyah would have used it against Abu Dharr’s opinion and Abu Dharr would have been silenced or ‘Uthman (ra) would have used it to silence him. This indicates that the generality of the verse and its unrestricted nature was not the cause of difference between Mu’awiyah and Abu Dharr, and between Mu’awiyah and ‘Uthman (ra), and it is not confirmed that they had a narration which opposed that.

Accordingly it is clear that the verse is general covering all gold and silver, irrespective of whether some of it was used in Jihad, and whether Zakat had been paid upon it, and whether it reached the amount required for Zakat to become obligatory or not. Therefore, all hoarding is forbidden (haram).

Those who permit hoarding if Zakat had been paid upon it have no authentic evidence and all of their evidences are not considered valid due to their weakness and the poor chains of narrations. Even though Bukhari wrote a section entitled “Chapter – It is not a hoard when Zakat has been paid upon it”, he did not produce a single narration which indicates the heading, since not even a single one was authentic to him. All the narrations used as evidence for the permissibility of hoarding once Zakat had been paid upon it are not authentic except for a single one of them. This narration is the narration regarding jewellery which was reported by Umm Salamah, and all of the other narrations which were reported in this issue are considered as lies, and have been criticised from both the angle of the chain and text of the narration.

With respect to the narration of Umm Salamah that they use as an evidence to prove the permissibility of hoarding gold and silver if Zakat is paid upon it, it is as follows: Abu Dawud reported from the chain of Thabit b. Ajlan from Ataa from Umm Salamah who said: “I used to wear gold jewellery, and so I said O Messenger of Allah, is it a hoard? So he said “As long as you paid its Zakat it is not a hoard””. The word used in the narration is al-awdhah, which is a type of jewellery. It is mentioned in the al-Muhit dictionary “al-wadhah…and it is silver jewellery and its plural is awdhah”. This narration is weak because Thabit b. Ajlan is controversial when he is the single narrator in a narration. Al-Dhahabi said regarding Thabit in his biography: From the narrations which are refuted from Thabit is the narration of ‘Attab from ‘Ata’ from Umm Salamah”. Despite that, even if it was authentic, it is limited to the jewellery which women wear, and is not considered to be a hoard if its value reaches the nisab, and subsequently the Zakat on it had been paid. This is the evidence for the payment of Zakat upon jewellery and it being made an exception from the generality of hoarding. This narration is not suitable to be used as an evidence for the permissibility of hoarding if Zakat had been paid upon it, from two angles:

Firstly: This narration came as an answer to a question, and every text which is an answer to a question, or came regarding a specific subject, is necessarily limited to what the question was about, and to that specific subject, and it is not considered general for everything since the words are connected to the question, or in other words to the specific subject, and so they are specific and limited to that question and subject and do not apply beyond them. Accordingly, the narration is specific to jewellery, and so if Zakat is paid upon jewellery it is permitted to hoard it and anything else is not permitted. It cannot be argued that the Shari’ah rule is “the consideration is given to the generality of the words and not to the specification of the cause” and the words here are general and so they are not specific to jewellery and rather they encompass jewellery and anything else. This cannot be argued because this rule is for the cause, and not for the reply to a question or a specific subject. It is a correct rule and its text indicates that it is a rule for the cause and nothing else, since it says “not to the specification of the cause”, and there is a difference between the cause and the specified subject, and between the cause and the reply to a question.

The cause is when an issue happens and then a Shari’ah rule is revealed regarding it, such as the case for the revelation of the verse “It is not for the believer, man or woman, when Allah and His Messenger have decreed a matter that they should have any option in their decision” (TMQ 33:36). The cause for the revelation of this verse was that the Messenger  engaged his niece Zaynab to his servant Zayd, then her brother ‘Abd Allah b. Jahsh refused, and so Allah (swt) revealed this verse. Therefore this is the cause of the revelation, and the rule “the consideration is given to the generality of the words and not to the specification of the cause” applies to it. Another example is the cause for the revelation of the verse regarding inheritance; the Messenger visited Jabir b. Abd Allah while he was ill and asked the Messenger of Allah  “How should I deal with my wealth? What should I do with my wealth?”, and the Messenger  did not reply until the verse of inheritance was revealed (agreed upon narration from Jabir) and so this was the cause of the revelation.

In the same way, all the causes of revelation are of this type, and it is upon this that the mentioned rule applies, which is different to the reply to a question, and to a specific subject. Since the specific subject is the issue that was being talked about, and the issue that was being sought when the rule came regarding it, and the rule did not originate by itself, so therefore it is limited to that subject. In the same manner the words of the Messenger  can be connected to a specific question, and so the words used in a reply to a question are limited to that question.

For example, what al-Bukhari mentioned from Abu Hurayrah who said “when we were sitting down with the Prophet, a man came and said O Messenger of Allah  I am destroyed. And so the Prophet  asked him what did you do? He said I deliberately had intercourse with my wife during Ramadan. And so he  said to him “Do you have a slave you can free? He said no. So he  asked him: Are you able to fast two consecutive months? He said no. So he   said: Could you feed sixty poor people? He said no. So the Prophet  waited, and in the meantime someone brought him a branch with a date and so he  said: Where is the questioner? The man replied: Here. So he  said: Take this and give it in charity. The man said: Upon someone poorer than me O Messenger of Allah ? I swear by Allah! There is no household poorer than me around. And so the Prophet  laughed until his teeth could be seen and then said: Feed your family with it”.

The answer of the Messenger  is specific to the question asked, and so the words “Free a slave” are connected to the question of the Bedouin. Another example is the report that when he  was asked about the permissibility of selling dates if they get dried, and so the Prophet  asked “Do they become less in weight when they dry?” and they replied yes, and so he  said “In which case, no” reported by Abu Ya’la with this wording from Sa’d b. Abi Waqqas, and al-Hakim and Ibn Hibban authenticated it. So, the answer of the Messenger  is specific to what he has been asked, in other words selling ripe dates for dried ones, and so his words “In which case, no” are connected to the question. This is not a cause for the rule, rather it is a reply to a question, and there is a big difference between both. Accordingly, the general wording which comes as a reply to a question is not a cause for the rule, it is only an explanation for the matter in question, and if general wording came as legislating a new rule for an issue that happened, then the legislation of the rule would be general, and the occurrence of the issue was the cause for the legislation of the rule. So the wide difference between the cause and the answer to a question becomes apparent. Therefore, the general rule encompasses its cause and anything else, whereas the answer to a question is specific to the question, since the words of the Messenger  are connected to it.

As for the question to the Messenger  regarding the sea water and his  answer “Its water is pure and its dead meat is halal…” (reported by Al-Tirmidhi from Abu Hurayrah and Abu ‘Isa said the narration is Hasan Sahih), it is also specific to what was asked about, which was the sea water, but the Messenger  explained more than he was asked about to the questioner. It still remains as the answer of the Messenger  specific to what he  was asked about, which was sea water, and it is limited to that. In the same manner when he  was asked about the “Budha’ah”, well water, and he  said “Its water is pure” (reported by Al-Tirmidhi from Abu Sa’id al-Khudri, and he said it is Hasan and Ahmad authenticated it), which is also connected to the question, and so he  replied to the question about the well water but his reply to the questioner encompassed more than what he  was asked about, yet it still remains as the answer of the Messenger   connected to the question. So he  was asked about ablution from sea water, and his answer was general encompassing ablution, Ghusl (ablution from major impurities) and more. In the book al-Imam Sharh al-Ilmam it is written “why did he  not answer then with yes when they said “can we make ablution with it?”. We say – because it would have been restricted to the situation of necessity, and this is not the case. Also, it would be understood from the restriction of the answer to “yes” that only ablution could be made from it, and the remainder of impurities and dirt could not be purified by it”.

Therefore the answer of the Messenger  regarding the sea water and well water is limited to what he  was asked about, and not general to everything. However, he  answered the questioner with more than what he asked, but still in the subject of his question, and the discussion is not about the conformity of the answer to the question, such that it could be said that the answer of the Messenger  was more general than the question of the questioner. Rather the discussion is that the answer was limited to the subject matter of the question, and was limited to that without going beyond it to another subject, and not about the conformity of the answer to the question. Shawkani mentioned in Nayl al-Awtar: “and from the benefits of the narration is the legitimacy of giving extra in the answer to the question, in order to limit the benefit (from a direct answer) and the lack of necessity to be restricted”. Bukhari wrote a chapter on the issue entitled “Chapter – who answers the questioner with more than what he asked”. And he mentioned the narration of Ibn Umar that “a man asked the Prophet : what does the pilgrim wear? So he said: “He does not wear shirts, and nor turbans, nor trousers, nor hooded cloaks, nor robes from saffron. If you do not find two sandals then wear two leather socks, and cut them such they are below the ankles”, so it was though he was asked about a situation of choice and so he answered it, and then he gave extra information about a situation of exigency, which is not unusual to the question since a travel may lead to that”. This all indicates that the reply is limited by the question; notice his words “not unusual to the question”, irrespective of whether the reply was in conformity with what the questioner asked or was more than he asked, the answer is specific to the question. For this reason the question of Umm Salamah was regarding jewellery and so the answer of the Messenger  is specific to jewellery, and is limited to it, and does not apply to anything beyond it, because it is an answer to a question and not a cause for the revelation of a rule. Accordingly, the use of this narration as an evidence to prove the permissibility of hoarding if Zakat had been paid upon it has been shown to be invalid, since the narration is specific to jewellery.

The second of the two reasons: the verse of Zakat is general for every hoard, and the narration of Umm Salamah is specific to jewellery, and so the narration would be a specification for the generality of the verse. Therefore the hoarding that is forbidden is the hoarding of anything other than jewellery, whereas it is not prohibited to hoard jewellery if the Zakat on it is paid. It is not possible from any angle for the narration to be general to every type of hoard, and the simplest evidence that it is not general is that if it was then it would be an abrogation of the verse, since the verse would be general as would the narration and so it would be an abrogation for the verse. And the narration is an ahad (singular) narration and so it is inconclusive whereas the verse is definite, and the narrations cannot abrogate the Quran even if they were mutawatir (multiple chains of narrations such that the narration becomes definitely confirmed). This is because the Quran is definitely confirmed by words and meaning, and we worship Allah (swt) by its words and meaning, whereas the mutawatir narration is definitely confirmed from its meaning and not its words, and we do not worship Allah (swt) with its words, and so it cannot abrogate the Quran. If this is the case for the mutawatir narration, then what about the singular one? And so accordingly the use of this narration to prove the permissibility of hoarding if Zakat is paid upon it has been proven invalid, due to the impermissibility of Quran being abrogated by a narration.

Those who permit the hoarding of gold and silver if Zakat has been paid upon it, claim that the evidence for its permissibility is that the verse forbidding hoarding is abrogated by the verses which made Zakat obligatory, and that those verses abrogated the verse of hoarding by obligating Sadaqah, in other words Zakat, upon it. The reply to this is that Zakat was made obligatory upon the Muslims in the second year after Hijrah, whereas the verse of hoarding was revealed in the ninth year after Hijrah, and what is revealed earlier does not abrogate what is revealed later. On top of that, it is imperative that there is an evidence which indicates that this verse is an abrogation for the other verse in order for it to be abrogation, and if there is no evidence found which indicates that abrogation, then it is not considered to be an abrogation. Abrogation is the cancellation and lifting of the rule derived from a previous text by a subsequent text, and the cancellation of the previous rule by a subsequent text is conditional upon the subsequent text mentioning that it is an abrogation for the previous rule, such as his  words “I used to forbid you from visiting the graves, now visit them” (reported by Muslim from Buraydah) and His (swt) words “O you who believe, when you consult the Messenger in private, spend something in charity before your private consultation. That will be better and purer for you. But if you find not (the means to do so) then truly Allah is the oft Forgiving most Merciful” (TMQ 58:12). This verse enjoins spending charity when coming for consultation if possible, and then another verse comes and abrogates it “Are you afraid of spending in charity before your private consultation? If then you do not do it, and Allah has forgiven you, then at least perform prayer and give Zakat and obey Allah and His Messenger” (TMQ 58:13). This verse therefore lifts the injunction to pay charity when coming for private consultation. The narration explains explicitly within its text that it is an abrogation, and the verse explains it is an abrogation through indication by His (swt) words “Are you afraid of spending on charity before your private consultation?”, and so it is imperative that the text includes something that indicates that it is an abrogation from the previous text, either explicitly or through implicit indication. It is not sufficient for abrogation that there is an apparent conflict between the two texts, because there is no conflict between verses of Quran. As for what some Scholars have said, that these verses suggest conflict between them and claim that they are abrogated, the text of those verses themselves are explicit in the absence of any conflict and reconciliation between the texts is clear and there is nothing in the verses which indicates abrogation. Therefore it is imperative that the subsequent text which is claimed to be an abrogation for a previous one includes something, either explicitly or by indication, that proves it is an abrogation. There is nothing in the verses of Zakat which indicate from near or far that they are an abrogation for the verse regarding hoarding, whether explicit or by an indication, and so they are not an abrogation for it. Even those who say that conflict between a subsequent and previous text makes the subsequent text an abrogation for the previous one, do not say that the verses of Zakat abrogate the verse regarding hoarding because there is nothing that suggests a conflict between the two, since the verses of Zakat are an address to pay Zakat, and the verse regarding hoarding is an address to call for the absence of hoarding. There is no conflict between these two issues, since there could be payment of Zakat and hoarding, and there could be the absence of payment of Zakat and the absence of hoarding. This is an additional reason why there is no abrogation even according to this opinion, and so from what angle is this abrogation claimed? Accordingly, the fact that the Zakat was legislated in the second year after hijrah and the verse regarding hoarding was revealed in the ninth year after hijrah, in other words seven years after Zakat had been obligated, and the fact that the verses of Zakat do not encompass, explicitly or through indication, what is necessary to indicate that they are an abrogation for the verse regarding hoarding, and above and beyond that there is no conflict between them, in other words no conflict between the verses of Zakat and the verse regarding hoarding, therefore the claim that the verse regarding hoarding is abrogated is a false claim and so it is rejected.

Those who claim that it is permitted to hoard gold and silver if Zakat has been paid upon them say that the evidence for its permissibility is what has been reported in Bukhari “from Ibn Umar who said that a Bedouin asked him about the verse “And those who hoard gold and silver”: Whoever hoarded it, so had not paid the Zakat upon it and so woe unto them, this was before the revelation of the verse of Zakat, and so when that was revealed Allah made it as a purification for the wealth”. It cannot be argued that this narration from Ibn Umar is a specification for the Quran by the Sunnah, or an abrogation of the Quran by the Sunnah. Rather this narration is an authentic information regarding that abrogation, and so it is from the category of abrogation of Quran by Quran, since what abrogated the Quran in this case was the Quran because Zakat was made obligatory by the Quran and not the Sunnah, and so it is obligatory to accept it since it is an authentic narration which reports that the verse is abrogated by another verse, and so the forbiddance of hoarding is abrogated. Therefore whatever has had Zakat paid upon it can be hoarded.

The answer to this is from four angles:

First: This is an ahad narration which claims that the verse has been abrogated, and so as it is ahad it is indefinite like any other ahad narration, whereas the verse itself is definite, and what is definite is preferred to what is indefinite and so the verse is preferred due to the absence of anything abrogating it, and so it is acted upon due to the absence of abrogation because it is preferred and the claim of abrogation is rejected.

Second: The informing about the abrogation of a verse is like a reported narration which included a rule which abrogates another rule that was found in a verse of the Quran, so in the same manner that the narration cannot abrogate the verse even if it includes what indicates its abrogation, in the same way the information from Ibn Umar is not an abrogation for a verse of Quran simply by his statement that it is abrogated.

Third: Ibn Umar did not inform that the verse was abrogated as information from the Messenger ; in other words he did not report that the Messenger  said that the verse is abrogated. Rather he was giving his opinion that the verse has been abrogated, since when the Bedouin asked him about the verse he replied that it has been abrogated and he did not relate that the Messenger  had informed him that it had been abrogated, and so it is the opinion of Ibn Umar that the verse was abrogated by Zakat. In other words it was Ibn Umar’s understanding that Zakat abrogated this verse, and it was not a narration from the Messenger , and the opinion of Ibn Umar is not considered to be a Shari’ah evidence since the opinion of a companion is not considered to be a Shari’ah evidence for a Shari’ah rule, let alone as an abrogation of Quran.

Fourth: Zakat was obligated in the second year after hijrah, and the verse which forbade hoarding was revealed in the ninth year after hijrah, and so how can the earlier rule of Zakat abrogate a verse which was revealed seven years later? And therefore this narration is rejected from its text (dirayyatan).

These four angles are without a doubt sufficient to show that using this narration as evidence is invalid, and to invalidate the claim that the verse is abrogated, and accordingly this narration is not suitable to be used as a proof that it is permissible to hoard if Zakat had been paid upon it.

And those who permit hoarding if the Zakat is paid upon it say that the evidence is that the Muslim is not accountable financially beyond Zakat, and the evidences for this are many, such as the agreed upon narration of the Messenger  to the Bedoiun “Nothing else is upon you, unless you want to give in charity”, and his  words “There is no right over wealth except for Zakat”, and the words of the Messenger  “There is no right over wealth except Zakat” (reported by Ibn Maja from Fatimah bint Qays), and the narration in Tirmidhi that he considered Hasan from Abu Hurayrah that the Prophet  said “If you paid the Zakat on your wealth then you have fulfilled what is upon you”. These narrations indicate that there is nothing upon a Muslim’s wealth except for Zakat, so the words of the Messenger  “Nothing else is upon you” and “there is no right over wealth” and “you have fulfilled what is upon you” are general and so they encompass anything obligated from wealth. And this therefore indicates the permissibility of hoarding as long as the Zakat that is obligatory upon the Muslim is paid.

The answer to this is that the forbiddance of hoarding is an issue independent from Zakat, and the information mentioned prevents the obligating of any other rights in addition to Zakat, which does not prevent the presence of additional rules connected to wealth. Hoarding is from the rules relating to wealth and not from the obligatory rights upon the wealth. So Allah (swt) did not impose any right other than Zakat over the wealth owned by the Muslim from the angle of it being wealth, but He (swt) legislated other rules for wealth which are not from the rules of Zakat, such as the rules of interest in gold and silver, and those relating to exchange of gold and silver, and those relating to gold and silver found buried, which are all from the rules regarding wealth. The rules regarding wealth found in the ground are from the financial rules like the rest of the rules, and they are not from the obligatory rights upon the wealth, and so accordingly these narrations have nothing to do with the hoarding of wealth, and consequently these narrations do not indicate the absence of the forbiddance of hoarding wealth if the Zakat on it had been paid, and therefore the use of these narrations as evidence has been invalidated.

This is with the knowledge that the two last narrations are disputed over as al-Hafiz considered them both weak in al-Talkhis, and especially the narration from Ibn Maja, since it is weak with a text that is conflicting.

Ibn Maja reported in his Sunan: Ali Bin Muhammad told us from Yahya Bin Adam from Sharik from Abu Hamza from al-Sha’bi from Fatimah bint Qays that she heard the Messenger  say “There is no right over wealth except Zakat”.

But Al-Tirmidhi reported it in his Sunan: Muhammad b. Ahmad Bin Muddawiya from al-Aswad Bin Amir from Sharik from Abu Hamza from al-Sha’bi from Fatimah bint Qays who said I asked, or the Prophet  was asked, about Zakah, and so he  said “In the wealth there is a right, except for Zakah”.

Its chain confirming, and rejecting the right except for Zakat is weak, and the weakness from Sharik though he is trustworthy but he had a bad memory, and from Abu Hamza who is agreed to be considered weak due to his contradictions and bad memory, and for this reason he mentioned the narration once confirming and once rejecting.

These are all the evidences of those who say that hoarding is permitted as long as Zakat has been paid upon it, in other words all the evidences from which it is possible to find a semblance of an evidence that indicates the permissibility of hoarding if Zakat had been paid upon it, and they are flimsy evidences, and what is apparent is the effort to catch any way of using them as evidence, and it may be possible to say that there is nothing which justifies their use as evidence. The evidence that the verse regarding hoarding was revealed seven years after the obligation of Zakat is enough to explain the invalidity of using these evidences as proof. Therefore it is clear that the verse is explicit that hoarding is comprehensively forbidden (haram) even if Zakat had been paid upon it.

One issue remains which is: what is intended by the words hoarding (Al-Kanz) in the verse? The answer is that what is meant by hoarding is collecting wealth on top of wealth without a need. Hoarding linguistically means to collect wealth on top of wealth and to preserve it, and wealth is hoarded in other words collected, and the hoard is anything which has been collected together, under or over ground. It is mentioned in the Al-Muheet dictionary “Al-Kanz: the buried wealth, and it is hoarded and gold and silver and whatever is used to protect wealth”. Imam Abu Ja’far al-Tabari said “Al-Kanz: Everything that is collected together, irrespective if it was held under or over ground”, and the one who wrote al-‘ain said “and it was stored”. This is the meaning of Al-Kanz (the hoard) linguistically, and the Quran is explained by the linguistic meaning alone, unless the Shari’ah related a Shari’ah meaning for something, in which case it is explained by its Shari’ah meaning. And the word Al-Kanz has no authentic Shari’ah meaning related for it, and so it must be explained by its linguistic meaning alone, which is that simply collecting wealth on top of wealth without a need, for its own sake, is considered to be the blameworthy hoarding for which Allah (swt) promised a painful punishment for the one who carried it out. Therefore burying wealth means to keep it preserved needlessly, and to store the wealth in other words not having a need for it, since if wealth is for spending it is not needed to be buried or stored. Accordingly the intention behind the words hoarding of wealth in the verse is to store it without a need for which it is spent, and so it applies to every type of storing of gold and silver without a need.

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