(Series of answers by the eminent scholar Ata Bin Khalil Abu al-Rashtah, Ameer of Hizb ut-Tahrir, to the questions of his Facebook followers on his "Fiqhi" page)
Answer to a Question
To Suad Abed
Question:
Assalamu Alaikum Wa Rahmatullah Wa Barakatuh.
Excuse me, in the book The Economic System in Islam by the eminent scholar Taqiuddin al-Nabhani (may Allah have mercy on him), he speaks about Kharaji land and Ushri land...
My question is: What is the difference between the substance (raqabah) of the land and its benefit (manfa’ah) belonging to the individual, and the substance of the land belonging to the State while its benefit belongs to the individual?
Thank you for the clarification.
Answer:
Wa Alaikum Assalam Wa Rahmatullah Wa Barakatuh,
According to Sharia rules, land is of two types: Ushri and Kharaji. Both types can be exchanged through buying, selling, gifting, and are inherited from their owner because they are the real property of the owner; thus, all rules of ownership apply to them. There is no difference between them except in two matters: the first relates to the substance of what is owned, and the second relates to the obligations due on the land.
As for the substance (’ayn) of what is owned: the owner of Ushri land owns its substance (raqabah) and its benefit (manfa’ah), whereas the owner of Kharaji land owns its benefit only and does not own its substance. A consequence of this is that a Sharia rule whose validity requires ownership of the substance cannot be performed by the owner of Kharaji land, but only by the owner of Ushri land. For example, the validity of a religious endowment (waqf) is conditioned on owning the substance of the endowed property. Therefore, if the owner of Ushri land wants to make a waqf of the land they own, they can do so at any time, because they own its substance (raqabah). However, if the owner of Kharaji land wants to make a waqf of the land they own, they cannot do so, because the one making the endowment (waqif) must be the owner of the substance of what is being endowed. The owner of Kharaji land does not own the substance of the land, but only its benefit, because its substance belongs to the State Treasury (Bayt al-Mal).
As for the obligations due on the land: Ushri land is subject to Ushr, and Kharaji land is subject to Kharaj. The difference between Ushr and Kharaj is as follows:
Ushr is based on the actual production of the land. The State takes one-tenth of the actual harvest from the farmer if the land is watered naturally by rainwater, and it takes half of one-tenth (5%) of the actual harvest if the land is watered artificially by water-wheels or other means. Muslim narrated from Jabir that the Prophet (saw) said:
فِيمَا سَقَتْ الْأَنْهَارُ وَالْغَيْمُ الْعُشُورُ وَفِيمَا سُقِيَ بِالسَّانِيَةِ نِصْفُ الْعُشْرِ
"For that which is watered by rivers and clouds, the Ushr (one-tenth) is due, and for that which is watered by a bucket (irrigation), half of the Ushr (one-twentieth) is due."
This Ushr is considered Zakat and is placed in the Bayt al-Mal, and it is only spent on one of the eight categories mentioned in the verse:
إِنَّمَا الصَّدَقَاتُ لِلْفُقَرَاءِ وَالْمَسَاكِينِ وَالْعَامِلِينَ عَلَيْهَا وَالْمُؤَلَّفَةِ قُلُوبُهُمْ وَفِي الرِّقَابِ وَالْغَارِمِينَ وَفِي سَبِيلِ اللَّهِ وَابْنِ السَّبِيلِ فَرِيضَةً مِنَ اللَّهِ وَاللَّهُ عَلِيمٌ حَكِيمٌ
"The alms are only for the poor and the needy, and those who collect them, and those whose hearts are to be reconciled, and to free the captives and the debtors, and for the cause of Allah, and (for) the wayfarer; a duty imposed by Allah. Allah is Knower, Wise." (QS At-Tawbah [9]: 60)
Furthermore, it is only taken from four types of crops. Al-Hakim, Al-Bayhaqi, and At-Tabarani narrated the hadith of Abu Musa and Mu’adh when the Prophet (saw) sent them to Yemen to teach people their religion, where he said:
لَا تَأْخُذَا الصَّدَقَةَ إِلَّا مِنْ هَذِهِ الْأَرْبَعَةِ: الشَّعِيرِ، وَالْحِنْطَةِ، وَالزَّبِيبِ، وَالتَّمْرِ
"Do not take Sadaqah except from these four: barley, wheat, raisins, and dates."
As for the Kharaj on land, the State takes a specific amount from the landowner, which it estimates and determines based on the potential production of the land, not the actual production. It is estimated according to what the land can bear, so that neither the landowner nor the Bayt al-Mal is treated unjustly. The Kharaj is collected every year from the landowner...
بَعَثَ عُمَرُ بْنُ الْخَطَّابِ رَضِيَ اللَّهُ تَعَالَى عَنْهُ عُثْمَانَ بْنَ حَنِيفٍ عَلَى السَّوَادِ، وَأَمَرَهُ أَنْ يَمْسَحَهُ، فَوَضَعَ عَلَى جَرِيبٍ عَامِرٍ، أَوْ غَامِرٍ، مِمَّا يُعْمَلُ مِثْلُهُ، دِرْهَمًا وَقَفِيزًا
"Umar ibn al-Khattab (ra) sent Uthman ibn Hanif to the Sawad (fertile lands of Iraq) and ordered him to survey it; so he placed upon every Jarib (a unit of area), whether cultivated or uncultivated (but cultivable), one Dirham and one Qafiz (a unit of volume)."
(Reported by Abu Yusuf in Al-Kharaj from Amr bin Maymun and Harithah bin Mudarrib). The Kharaj is placed in the Bayt al-Mal in a section other than the Zakat, and it is spent on all aspects that the State deems necessary, just like other funds.
I hope this is sufficient.
Your Brother, Ata Bin Khalil Abu al-Rashtah
08 Jumada al-Akhirah 1440 AH Corresponding to 13/02/2019 CE
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