Question:
It was mentioned in the Introduction to the Constitution – Part Two, page 43, line 10, the following:
"As for the disbeliever (kafir), if he owns Kharaji land, he must pay the Kharaj. If he owns Ushri land, he must also pay the Kharaj and not the Ushr, because land cannot be devoid of a function (wadhifah). Since the kafir is not eligible to pay Ushr, the Kharaj becomes designated." The same idea was mentioned in different words in the book Al-Amwal (Funds), page 48, in the last paragraph which ended with: "and because land cannot be devoid of a function, either Ushr or Kharaj."
This phrase "because land cannot be devoid of a function" came as a reasoning (ta'lil) for the ruling to impose Kharaj on a kafir who owns Ushri land, but it was not explained how this reasoning was deduced. For a reason (illah) to be a Shari'ah reason, it must be mentioned in the Shari'ah texts either explicitly (sarahatan), by indication (dalalatan), by deduction (istinbatan), or by analogy (qiyasan). So, what is the evidence for this illah?
If this illah is established, another question arises: We know that Ushr is Zakat and is only obligatory upon a Muslim, and it has its own rulings that specify the types of wealth from which it is taken. We also know that Ushri land owned by a Muslim may not have Ushr or Kharaj paid for it, such as when it is planted with a type of crop for which Zakat is not mandatory, like cucumbers, peaches, olives, and others. In this case, the land is devoid of a function. Can we then say that since cucumbers and olives are not among the types of Zakat, a Kharaj must be paid because the land cannot be devoid of a function?
Answer:
First: The sentence "because land cannot be devoid of a function, either Ushr or Kharaj" is not for reasoning (ta'lil). Rather, it is a description of the reality of agricultural land based on Shari’ah evidences. The evidences for the rulings on agricultural lands did not leave any land except that it is either Ushri or Kharaji.
As for how that is, here is the explanation:
The Shari’ah evidences for the rulings on agricultural lands are as follows:
1- General evidences regarding every land, which obligate the Muslim to pay the Zakat of Ushr or half-Ushr:
فِيمَا سَقَتْ الأَنْهَارُ وَالْغَيْمُ الْعُشُورُ، وَفِيمَا سُقِيَ بِالسَّانِيَةِ نِصْفُ الْعُشْرِ
"On that which is watered by rivers or rain, a tenth (Ushr) is due, and on that which is watered by a bucket (irrigation), a half-tenth is due." (Narrated by Muslim) and others.
2- After the conquests (Al-Fath), a new issue appeared regarding lands that were excluded from the general text, and Kharaj was placed upon them:
قَضَى رَسُولُ اللهِ صلى الله عليه وسلم فِيمَنْ أَسْلَمَ مِنْ أَهْلِ البَحْرَيْنِ أَنَّهُ قَدْ أَحْرَزَ دَمَهُ وَمَالَهُ إِلاَّ أَرْضَهَ، فِإِنَّهَا فَيْءٌ لِلْمُسْلِمِينَ؛ لأَنَّهُمْ لَمْ يُسْلِمُوا وَهُمْ مُمْتَنِعُونَ
"The Messenger of Allah (saw) decreed regarding those who embraced Islam from the people of Bahrain that their blood and property were protected, except for their land, for it is Fay’ (booty) for the Muslims; because they did not embrace Islam until they were defeated."
Also, what Umar (ra) decreed regarding the land of As-Sawad (Iraq): "I have decided to hold the lands with their inhabitants and impose Kharaj upon them..." and others.
3- Therefore, every land in Dar al-Islam is subject to Zakat, except for a specific type that is subject to Kharaj.
4- Thus, the general ruling applies in its generality: "Every land in Dar al-Islam is subject to Zakat upon the Muslim owner," and nothing is excluded from it except what was specified by another text, which is "Kharaji land."
5- This is the ruling for agricultural lands. Were it not for the existence of texts regarding Kharaji land, the ruling would have remained as Zakat on the land for its Muslim owner according to the provided Shari’ah texts.
6- Therefore, the sentence is not a reasoning (ta'lil). Its literal meaning (mantuq) does not indicate reasoning, neither explicitly nor by indication; meaning, no explicit tools of illah or indicative tools of illah are mentioned in it. Similarly, it is not an "intelligible description" (wasf mufhim) that clarifies the difference in land between being Ushri or Kharaji. Land is land—it is a solid noun (lafzh jamid). This is Ushri land, and there might be Kharaji land near it, and there is no difference between them in soil or crops.
The sentence is not a reasoning in terms of its literal text (mantuq), as there are no tools of reasoning in the text, nor in terms of its understanding (mafhum), as it is not an intelligible description linked to the ruling.
In conclusion, the sentence is not a reasoning but a statement of the reality of lands in terms of the evidences of the rulings related to them.
Second: The example mentioned in your statement: "...if the land is planted with crops other than the types of Zakat... then it is devoid of a function..."
You have misunderstood "function" (wadhifah). The land does not cease to be Ushri if it is planted with peaches. If someone were to ask you: What is the category of this land? Is it Ushri or Kharaji?
Would you say it is not Ushri? Rather, you must say: Its category is Ushri. You would not say it is Kharaji, nor would you say it is neither Ushri nor Kharaji.
However, when asked: Is there Zakat on this crop? You would say no.
So, the matter consists of two things:
First: The category of the land; it is Ushri.
Second: The Zakat on its produce; there is no Zakat on it.