The Rules On The Cultivated Land After The Enactment Of The Law Of Anfal

The Rules On The Cultivated Land After The Enactment Of The Law Of Anfal (Spoils Of War Gained Without Fighting)

Some jurists hold the view that there are two types of cultivated lands that are acquired by conquest.

One type comprises lands that had been cultivated by the non-Muslims before the law of anfal was enacted, which results in ownership by the office of the Imam. This type includes reclaimed wastelands that were cultivated since the pre-Islamic times.

The other type comprises lands - acquired by conquest - that is cultivated only after the law was enacted. For instance the Muslims conquered it in the fiftieth year of the hijrah (672 A.D.), and its cultivation began after the revelation of the Chapter 82 of the Qur’an, or after the death of the Prophet.

The first category of such lands at the time of conquest by the Muslims is public property, while the second category is not under Muslim’s common ownership. It is the property of the Imam alone. The jurist research scholar, the author of the book al-Jawahir, in the discussion of khums in his book, states:

“By the practice of the companions and the traditions on the designation of public ownership of lands conquered by force, it (khums) is meant for wastelands that the non-Muslims had reclaimed before Allah made anfal as gift to His Prophet. Even if the land had not been reclaimed1, it also belongs to him, even if it was already in a cultivated condition at the time of the conquest.”

However, the jurist scholar opposes that view in the discussions of reclamation of wastelands in the same book.

The admission of these two points below is the basis for making a juristical distinction between the two types of cultivated lands acquired by conquest. The two points are as follows: -

a) After the legislation on anfal, a non-Muslim will not become the owner of a wasteland by reclamation, because according to this legislation the land will be the property of the Imam; and the Imam would not agree to a non-Muslim’s rehabilitation so that he may become the owner of the land he has rehabilitated.

b) Upon conquest, the Muslims will legally seize and take possession of only the properties of non-Muslims as spoils of war, not the properties of the Imam that are in the latter’s possession and control.

From this, it may be deduced that a wasteland which non-Muslim rehabilitates after the enactment of the law of anfal, will be the property of the Imam and the non-Muslim will not gain its ownership by rehabilitation, as the first point establishes. Therefore, when Muslims conquer the land, they would not become its owners, because it is not a property of a non-Muslim but that of the Imam. They become owners of only what they seize (as spoils of war) from the non-Muslims, as mentioned in the second point above.

This opinion which aims at making distinction between these two types needs some clarification, because when we examine the legislative texts which confer ownership of the properties to the Muslims - including lands which they have taken from the unbelievers by force - we find ourselves in between two hypotheses.

One hypothesis is that, according to these texts, properties gained by conquest and awarded to Muslims may be taken to include all properties that were owned (or were already in a phase towards full ownership) by non-Muslims in the past. The second hypothesis is that it includes every property seized by conquest from the possession and control of a non-Muslim regardless of the nature of the legal relationship between the property and its non-Muslim ‘owner’.

Based on the first hypothesis, according to the texts, to treat a property as spoils of war it is necessary to prove in advance that the property was (formerly) owned by a non-Muslim and was later taken by Muslims in a conquest.

Contrary to the first point - which denies the right of a non-Muslim to a wasteland that he had rehabilitated after the enactment of the law of anfal - we hold the opinion that a non-Muslim’s rehabilitation of a wasteland entitles him to the right similar to that for a Muslim, even though the property belongs to the Imam. This is in accordance with the text that says: “He who rehabilitates a land is more entitled, without any distinction between Muslim and non-Muslim.” In this light, Muslims’ conquest of a land will constitute a ground for the transfer of this right from the non-Muslims to the Islamic community, while proprietary right of the land will remain to be that of the Imam and there will be no conflict between the two.

However, if we choose the second hypothesis for the explanation of the texts about ‘ghanimah’ properties, these texts include land which Muslims seize as booties from a non-Muslim even if the properties don’t belong to the non-Muslims and also those they do not hold any form of right to, before the conquest. Based on this interpretation, the basis of Muslims right of possession is broader. It is the seizure of the property from possession and control by a non-Muslim.

This will lead us to the conflict between the application of the texts regarding ‘ghanimah’ and those regarding the Imam’s ownership, because the land that a non-Muslim had rehabilitated after the enactment of the law of anfal and later conquered by the Muslims, under the texts regarding the ‘ghanimah’ will be considered subsumed as a land seized from an unbeliever by conquest. The land thus becomes a common property of the Muslims. This contradicts the application of the texts on evidence of the Imam’s ownership of a wasteland, because the reclaimed land will be considered subsumed as a wasteland at the time of the enactment of the law of anfal, and consequently becomes the property under his office.

In cases such as these, it is juristically necessary to determine with precision as to how far the meanings of the texts contradict each other, and which parts of their meanings can be embraced without any conflict. When we take into consideration the conflict here, we find that the ‘lam (ـﻟ )’ in their statement is its point of emphasis, that is, the ‘lam’ in the statement that every wasteland belongs to the Imam and in their statement that every land taken by sword belongs to the Muslims. Now, ‘lam’ does not indicate ownership by its nature, but a special right. It includes possession and usage. This means that the conflict is between the two lam’s because they indicate two different nature of possession.

So the two applications are cancelled and the root meaning of the jurisdiction remains established since there is no objection to the supposition of the two jurisdictions of the land which non-Muslim has rehabilitated after the enactment of the law of anfal and later conquered by the Muslims. One is the Imam’s jurisdiction at the level of ownership and the other is the Muslims’ jurisdiction at the level of (public) right.2 By this, we arrive at the same conclusion we reached, on the basis of the first hypothesis.

Is Khums Excluded From Conquered Land?

What remains for us to know is whether khums is applicable to conquered land or it is ruled to be entirely the public property of Muslims. Perhaps, the majority of the jurists hold the view that khums is applicable, in adherence to the evidence in the texts that stipulate that khums also applies to immovable properties. A group of jurists however hold a contrary view, saying that khums does not apply to ghanimah in view of the evidence in the texts on ownership of conquered land by Muslims and thus there is no allocation for khums.

We need to ascertain the intention of the proponents of this view. Is it that of giving preference for the texts in support of ownership by Muslims to those prescribing khums on the ghanimah, or is it merely acknowledgement of the conflict between the two sets of texts and their respective applications, and being content with dropping the set in support of khums?

If the first is intended, then for it to be preferred the evidence in the texts in support of public ownership of the conquered land by Muslims need to be more specific than that in support of khums on ghanimah. This specificness is a matter for investigation because it is the pre-requisite for preference. If the main subject matter of a particular textual evidence is more specific than that of another, the position of the textual evidence with the more specific subject matter is deemed to be more firmly established. The subject matter of the textual evidence for public ownership of Muslims is the conquered land, while that for ghanimah it is ghanimah itself. It is obvious that the conquered land is more specific than ghanimah, since the conquered land is a class of ghanimah.

But if the pre-requisite is instead a thorough examination of the circumstances and intention of the rule, then the comparison between the two sets of textual evidence will be in total, because it will take the difference between the subject matter (the ghanimah) and the other subject matter (the land acquired as booty) at that time. The common subject matter will be the seized land. On one hand, the difference between them would be khums on movable properties, and on the other hand khums of the seized land. Obviously here there is no perfect measure to identify the one that is more specific. Rather, the situation will vary with changes in the occasions of legal practice (‘urfan) as detailed in the explanation of the usul (principle) of jurisprudence.

But if the second is intended, that is acknowledgement of the contradiction between the two sets of textual evidences and the need to cancel one of them and the admission of there being neither one that is more specific, then an argument can be put forward against the ruling. It can be contended that if the contradiction is conceded, then preferring the application of the textual evidence for khums of ghanimah can be endorsed for two reasons: -

One is that the evidence for khums includes a verse of the Holy Qur’an. In terms of the thoroughness in considering the textual evidence, ignoring the Qur’an is an obvious mistake. The Qur’anic text should absolutely prevail and thus the evidence for the alternative ruling should be discarded as it contradicts the Holy Book.

The other reason is that the textual evidence implying public ownership by Muslims is by general understanding of the wisdom and philosophy of the Prophet’s saying, while that for khums on ghanimah in respect of the conquered land is wide-ranging, like the report of the tradition by Abu Basir (“Everything fought for on the attestation that there is no god but Allah is subject to khums”). It is similar in the case of Qur’anic verse.

The text of the tradition begins with the particle of “totality”, the word ‘kul’. As for the Qur’anic verse, the phrase, “everything” in the holy words: “and know that everything which you seize as booty” takes the place of the particle of totality as regards the meaning. According to Islamic legal practice, preference is to be given to the overall message instead of the literal meaning, in situation of conflict, without exception.

Thus, we learn that the reply to the adherence to the application of the textual evidence for ghanimah needs another examination.

The uncertainty over the imposition of khums on conquered land - as we have found in our discussion of the issue in this book - is because in the traditions on ghanimah there is nothing that justifies inferring from it the applicability of khums on conquered land except the abovementioned tradition reported by Abu Basir. Other traditions, in fact, are weak in terms of authenticity. For example the traditions on the confinement of khums in five things are inadmissible because of contradictions, like the tradition reported by Ibn Sinan: “No khums except in special ghanimah (spoils of war)” or hemmed in by special link other than land of the ghanimah, like the traditions on the extraction of khums of the ghanimah; and the distribution of the rest among the participants of war, because the distribution (of the spoils of war) among the participants of war indicates that their occurrence is in respect of the movable spoils of war.

Thus, we learn that the application of the tradition of Abu Basir along with the Qur’anic verses is limited to ghanimah. Both support and confirm the applicability of khums, but on further examination we could not deduce anything beyond that. As for the Qur’anic verse, its subject matter has been explained in the sahih (authentic) tradition reported by Ibn Mahziyar regarding gains a man acquires. In light of this explanation, the subject matter of the verse would be an expression of private gain, while the textual evidence for the public ownership (by Muslims) of the conquered land excludes private gains. So, the subject matter of ghanimah cannot apply to the meaning of the sahih tradition. Hence the verse does not apply to forcibly conquered land.

As for the tradition reported by Abu Basir, we will reply from two angles.

First, that the application of holy verse - in view of the explanation in authentic tradition reported by Ibn Mahziyar - will be as per the tradition reported by Abu Basir, insofar as when it applies to gains in respect of property. That is because the verse demands that khums be established with the caption of gains while the tradition reported by Abu Basir demands that it be confirmed by property that was acquired by fighting. Rather, it has to do with the caption of gains in that respect.

Therefore, either of them - in accordance with the need of its application - implies that the caption taken is the entire subject matter of the khums of the ghanimah. Restricting the application of the tradition reported by Abu Basir the caption ‘gains’ - and that is because the restraint, without exception, is there - and the necessity of non-interference of the caption of ‘gains’ directly in the matter khums of the ghanimah leads to the removal of the khums of the ghanimah from the application of the verse and turn it to other sources of khums. Alternatively it leads to the necessity that the verse - even if it implies to the khums of the ghanimah – being only a caption taken from it, that is, the profit, and it has nothing to do with this subject matter of khums at all. And both cases are invalid.

As for the removal of the khums of the ghanimah from the application of the verse, it is obvious that the khums of the ghanimah is an undisputable divine decree from the verse because it is the source of the Sunnah of the Prophet and his practices. So, there can be no reason for its removal. As for the caption taken from the subject matter of the verse, that is, ghanimah, in the sense of private gain, that too is invalid, because when the matter runs between the discussion of cancellation of the caption taken as regards either of the two textual evidences directly on the basis of objectivity, the restriction of the deduced caption taken in respect of the other evidence it will be allocated to the second and in place of the imperative. So, there is no way to avoid from restricting the subject matter of the tradition reported by Abu Basir to just the caption on gains.

However, if it is said that this also makes cancellation of the caption taken from the tradition reported by Abu Basir imperative (i.e. the phrase “what is fought upon [spoils of war]”) because gain in itself is a pre-requisite for khums even with respect to that other than those “fought upon”.3 Our view is that it does not make it imperative. On the contrary, caption on the subject matter being acquired by fighting constitute the inner core of the khums of the ghanimah to the extent of the caption of the thought of capital as regards the subject matter of the khums of the mines and its effect is the proof of imposition on property in its entirety without exception of the provision contrary to the caption of the profit alone, that is, the basis of the pre-requisite essential of the khums, after the exception and not for the whole.

It clearly follows from this that the restriction as to the applicability of the tradition - which needs the caption derived from it to be the whole of the subject matter - makes cancellation of the caption derived from the verse in respect of the khums of ghanimah directly necessary, or the restriction of the applicability of the tradition to the verse after the revelation and the necessity that the subject matter of khums involves fighting and the veracity of the caption ‘gains’. There is no danger therein (object of precaution) of the giving up of the caption directly.

So, if that is proved, the reasoning based on the tradition is inadmissible because the caption ‘private gains’ will not apply to the land after it has permanently become a public endowment for (the benefit of) the Muslims. This is our reply, from the first angle, to the reasoning based on the tradition reported by Abu Basir.

As for the second angle, we will argue that the application of the tradition reported by Abu Basir contradicts the traditions implying public ownership of Muslims for all conquered land. The lands so acquired are of two types. First, lands acquired and second, the green land (Iraqi land).

As for the first type, of its relationship with the tradition by Abu Basir being on the assumption of totality is subject to it and it cannot conflict with it because the application of it is by the preludes of prophecy, while the totality of the tradition by Abu Basir is declaratory.

As for the second kind, as the caption of it is arable land (Iraqi land) it is a mark of a land which is limited abroad. So its implication will be by verbal appearance, not by the prophecy, and at such a time it will be good for conflict with the tradition by Abu Basir. This means that the tradition by Abu Basir will only happen to be a side of conflict in the first grade with the second kind particularly and after the elimination of both sides, the shift will amount to the first in its turn without (any) conflict, because the first kind in view of itself subject to it, due to the basis of totality in the tradition of Abu Basir. It is impossible that it will come to be a side of the conflict with it in the first grade so that it will fall (be eliminated) with its falling (elimination).

• 1. By the time of the enactment of the law on anfal.
• 2. In other words, the conflict is actually not between allowing the general application of the caption ‘ghanimah’ (because some texts point to public ownership by Muslims) and the caption ‘wasteland’ (because some texts permit ownership by the Imam). The conflict is in fact between the application of the ‘lam’ in all these texts because it is these two applications which lead to the joining of two properties in a single owned property, and the rule on conflict demands gradual cancellation to that extent there is a conflict, and not beyond that. So, the application of the ‘lam’ giving the meaning of ownership is to be cancelled from either group of texts and the root meaning of the ‘lam’ indicating special right will remain.

  In that case, we will establish the right of the Muslim public to the land, with which the element of conflict arises from the ‘lam’ in the texts of ‘ghanimah’, because to this extent there is no contradiction. And we will establish that the Imam’s right to the land as the right of ownership, clearly showing that the entire land belongs to the Imam, because after the cancellation of the two specifics, the reference shall be made in general.

  Indeed, it may be perceived opposite to what we have stated, that the evidence for ownership of the Imam is determined when there arises a conflict between the two groups of texts, because the overall meaning of some of the texts is given with the article of generality (such as in its statement “Every dead land belongs to the Imam”) against the text on the kharaj-land (taxed land).

  The reply to this is that the application of the traditions on kharaj-land in the texts regarding ‘ghanimah’ does not contradict the generality in the phrase “every dead land”. But it is in conflict with its temporal application after the conquest, in the sense that the conquered land (that was already cultivated at the time of conquest) was an inner part of the evidence for the Imam’s ownership, without contradiction.

  Therefore, the aspect with contradiction is the temporal application, because the textual evidence for the Imam’s ownership (not the individual generality) that is declarative, even to the extent of its temporal application. We have earlier described the source of the contradiction. Therefore, if we assume the absence of the application of ‘lam’ (which indicates ownership), there will remain no contradiction, neither of individual generality nor in respect of the temporal application.

• 3. This refers to gains beside war booties acquired from the enemy without bloodshed.