(Series of Answers by the Scholar Ata Bin Khalil Abu Al-Rashtah, Ameer of Hizb ut-Tahrir, to the Questions of the Visitors to his Facebook Page)
Answer to Question:
To: Abu Umran
Question:
Assalamu Alaikum Wa Rahmatullahi Wa Barakatuhu,
It was mentioned in the "Answers to Questions" that 'Ushri land in the hands of a disbeliever pays Kharaj because the land is never free of a duty (wazhifah), and because the 'Ushr is Zakat, and the disbeliever is not eligible for it. Therefore, it is obligatory for the disbeliever, if he owns 'Ushri land, to pay Kharaj because the land is never free of a duty.
What is the evidence that the land is never free of a duty—meaning that it must pay Zakat ('Ushr) or Kharaj—given that Zakat is only obligatory on specific types [of crops] and if it reaches the nisab (minimum threshold)? Accordingly, all 'Ushri lands planted with crops other than the specified types would not pay 'Ushr or Kharaj. Likewise, the Kharaj became due on Kharaji land through conquest, meaning the Muslims owned the neck (legal title) of the land when it was withheld [from distribution].
The Answer:
Wa Alaikum Salaam Wa Rahmatullahi Wa Barakatuhu,
• Your question is regarding the evidence that the land is never free of a duty (wazhifah), meaning it either pays 'Ushr or half of the 'Ushr as Zakat according to the Shari'ah rulings, or it pays Kharaj...
The answer to that is that the evidences provided regarding the rulings of land categorized it as follows: either 'Ushri or Kharaji. Among these evidences are:
- General evidences regarding all land, which obligate upon the Muslim the Zakat of 'Ushr or half of the 'Ushr...
فِيمَا سَقَتْ الأَنْهَارُ وَالْغَيْمُ الْعُشُورُ، وَفِيمَا سُقِيَ بِالسَّانِيَةِ نِصْفُ الْعُشْرِ
"On that which is watered by rivers and clouds is the 'Ushr (one-tenth), and on that which is watered by the Saniyah (camels used for irrigation) is half of the 'Ushr (one-twentieth)."
This is according to the Shari'ah rulings related to the type of crop and its amount.
- After the conquests, a new issue arose regarding lands that were excluded from the general text and had Kharaj 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 they had secured their blood and their wealth except for their land, for it is Fai’ for the Muslims; because they did not embrace Islam while they were in a state of resistance."
And what Umar (ra) decreed regarding the land of Al-Sawad: "And I have seen that I should withhold the lands with their inhabitants, and impose upon them the Kharaj..."
Therefore, every land in Dar al-Islam is subject to Zakat, except for a specific type which is subject to Kharaj.
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 the "Kharaji land."
This is the ruling for agricultural lands. Had there been no texts regarding Kharaji land, the general ruling—which is Zakat on the land for its Muslim owner according to the mentioned Shari'ah texts—would have remained. There are no other rulings explaining the type of land in terms of what is paid for it; it is either Zakat or Kharaj. These are general texts under which all land falls.
From these evidences, we deduced that the land is never free of a duty (wazhifah).
• As for your question about whether the Messenger (saw) imposed Kharaj on disbelievers who owned 'Ushri land, nothing of that sort has been proven to me as far as I know. However, the previous evidences are sufficient to know the Shari'ah ruling that we have deduced. What is most weighted (al-rajih) for us is that if the Ahl al-Dhimmah (non-Muslim citizens) come to own 'Ushri land, they must pay Kharaj on it, because Zakat is only obligatory on the Muslim according to the Shari'ah rulings.
Nevertheless, if you know anything regarding this matter, you may send it to me for consideration, and I would be grateful to you.
Your brother, Ata Bin Khalil Abu Al-Rashtah
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