Each asset of land or building to which is attached a right for all the Muslims, and which does not belong to the public property, is a State property. The State property consists of assets which can be owned privately, like land, buildings and movable property. But since a right for all the Muslims is attached to it, taking charge of it and running it are entrusted to the Khalifah because he is the legitimate person responsible for the disposal of everything to which is attached a right for all the Muslims. These assets are not of the public property, as it is permitted for the Khalifah to grant the ownership of their origins (Asl) and their benefit to individuals, whereas it is not permitted for him to grant the ownership to anyone, whether an individual or group, the origin of public property. Therefore, these assets become State property, for the State has the authority to dispose of them, and this is the meaning of ownership.

Though the State takes charge of managing the public property and state property, there is a distinction between the two properties. All that is part of the public property such as petroleum, gas, replenishable minerals, seas, rivers, springs, open squares, forests, pastures and mosques, is not permitted for the Khalifah to grant its ownership to anyone, whether an individual or group, as they are property for all Muslims. The Khalifah has to enable all the people, through a specific type of management, to benefit from these properties according to his own Ijtihad in looking after the affairs and discharging the interests of the Muslims.

As for what is part of state property of land and buildings, it is for the Khalifah to grant ownership of it to individuals, whether its origin and its benefit or its benefit without granting ownership of its origin, or to allow its cultivation and possession. He disposes of all this, according to what he views as proper and good for the Muslims.

Types of State Property

1. Deserts, mountains, sea coasts (beaches) and uncultivated (dead) land not owned by individuals.

Every desert and every mountain, hill, valley, beach or uncultivated land, whether dead from a very long time and had never been cultivated before or had been cultivated before, then it changed into dead land because its landlords had vanished. All these lands of deserts, mountains, beaches and uncultivated land are considered as uncultivated (dead) and are owned by the State, and the Khalifah disposes of them according to his opinion and Ijtihad according to what he sees fit for the interests of Muslims. It is for him to allocate of it or give permission so as to be cultivated or closed off as private property (Tahjeer). From Bilal b. al-Harith al-Muzni: “The Messenger of Allah (saw) allocated to him the whole of Al-‘Aqeeq.” And in another narration, “The Messenger of Allah (saw) allocated to Bilal bin al-Harith al-Muzni what was between the sea and the rocks.” From ‘Amru b. Shu’aib from his father who said: “The Messenger of Allah (saw) allocated to people from Muzaina or Juhaina.” From ‘Adi ibn Hatim it is narrated “that the Messenger of Allah (saw) allocated to Furat b. Hayyan al-‘Ajli a land in Al-Yamama.” From Abyadh bin Hammal al-Mazini “that he was sent as an envoy to the Messenger of Allah (saw) and he asked him to allocate the salt to him and he allocated it to him. When he was turning away a man in the gathering said: ‘Do you know what you have allocated to him? You have allocated to him vast quantities of salt, water (mineral).’ He said: So the Messenger (saw) took it back from him.” And from ‘Amru b. Dinar, who said: “When the Messenger of Allah (saw) came to Madinah he allocated to Abu Bakr and allocated to ‘Umar as the Messenger (saw) made allocations to Az-Zubair b. al- ‘Awwam spacious land. He also allocated to him a place enough for his horse to race in the uncultivated land of An-Naqi’i, and he allocated to him land with trees and palm trees.”

These Ahadith which clarify that the Messenger of Allah (saw) allocated to Abu Bakr, ‘Umar, Az-Zubair, Bilal al-Muzni, Abyadh b. Hammal, Furrat b. Hayyan, the people of Muzaina and Juhaina and others, denote that the desert, mountains, valleys and uncultivated land not owned by anyone are State property and it is for the Khalifah to dispose of as he sees proper to Muslims. The disposal of the Messenger of Allah (saw) of these lands, and his allocation of them to such persons, without their being personal property for him either by inheritance or conquest, clearly indicate that they are owned by the State. Were they not property of the State he would not have had authority over them, nor would he have allocated them for he was not owner of any of them in a personal (or private ownership) capacity.

The property of Allah (swt) and His Messenger (saw) means the property of the State and the ownership of the Messenger (saw) of it gave him authority and free right of disposal over it. His authority and right of disposal over it transferred to the Khulafa’a after him, thus Abu Bakr, ‘Umar, Uthman, Ali and those who came after them used to allocate to people as the Messenger of Allah (saw) used to allocate to them due to their understanding that the desert, mountains and uncultivated land are owned by the State. So they have authority over them and are the people with the competence to dispose of them. Similarly the Companions and Muslims understood that these deserts, mountains and uncultivated land are the rights of Muslims in general and the authority over them is for the State, and that the Messenger (saw) and the Khulafaa after him are those who are competent to administer and manage their affairs, allocate them and give permission for their revival, cultivation and inhabitation. Therefore, Az-Zubayr b. al-‘Awwam, Abyadh b. Hammal, Bilal b. al-Harith al-Muzni, Abu Tha’alaba al-Khushni, Tamim al-Dari and others requested the Messenger (saw) to make allocations to them. Similarly Naf ’i Abu Abdullah of the people of Basra from Thaqif requested ‘Umar ibn Al-Khattab to allocate to him land in Basra (not the land of Kharaj nor that would harm any Muslim) to plant it with seeds for his horses, as narrated by Kathir b. Abdullah from his father from his grandfather, who said: “we came with ‘Umar ibn Al-Khattab in his Umra of the 17th year (Hijri) and the people owning water along the road spoke to him requesting the building of houses between Makkah and Madinah which had not existed previously. He gave permission to them upon the condition that the traveller has a greater right to water and the shade.” Abu Bakr b. Abdullah b. Maryam also narrated from Attiya b. Qays “that some people asked ‘Umar ibn Al-Khattab (for) land from Anzarkisan in Damascus as a place to tie up their horses.” From all of this, it is explicit that the desert, mountains and uncultivated lands are owned by the State and the Khalifah disposes of them according to his own Ijtihad whether in allocation, cultivation, selling, leasing, investment, shielding or any other forms of disposal as he deems good and proper for Muslims.

2. River-plains (Al-Bataih)

These are the low lands over which water overflows such as the riverplains present between Kufa and Basra over which flows the water of Dijla and al-Epherate after it breaks some of the fences that surround the watercourse of the two rivers and make the water gush from the places of breaching and cause the lands to overflow thus making them unsuitable for cultivation even though they were gardens, farms and houses. These riverplains (al-Bata’ih) resulted at the time of Qabath ibn Firoz, and they increased afterward and spread due to the negligence and ignoring of them because of the wars between the Muslims and Persians. Thus their area reached 30 Farsakh times 30 Farsakh i.e. what is equivalent to 27,225 square kilometres as a Farsakh is approximately equal to 5.5 kilometres. These lands which the water overflows and become unsuitable for planting due to the overflow of water take the rule of uncultivated (dead) land even if they happened to be inhabited with buildings and plants before. Thus they become property of Bait ul-Mal and property of the State as long as they are not owned by anybody. Linked with these river-plains are the thick forests, jungles and swamps as they are similar to them and take their rule.

3. Al-Sawafi (The State’s share of the booty)

These are all lands which the Khalifah decides to add to Bait ul-Mal from the conquered lands which remain without an owner after its people evacuated it or was owned by the conquered State, its rulers and leaders or those who were killed in the war or fled from the battle and abandoned it.

The first to segregate this share of the booty, and make it purely for Bait ul-Mal, was ‘Umar ibn al-Khattab. Abu Yusuf said: Abdullah b. Al-Walid, the slave of Abdullah ibn Abi Hurra, narrated to me and said: “‘Umar ibn Al-Khattab segregated from the people of Iraq ten types (of property): The lands of the one killed in the war, the one who fled, all lands belonging to Khosrau (the Persian king (Kisra)), all lands belonging to anyone of his family, all thickets of water, and every monastic post office, and he said: I forgot four remaining properties belonging to the Persian kings’, he said: ‘And the Kharaj of what ‘Umar sequestered amounted to seven million Dirhams.’

Therefore, when the Khilafah state conquers lands the Khalifah has to add to the property of Bait ul-Mal, i.e. State property, all buildings and lands which were owned by the conquered state, or its rulers or leaders, or those killed in the fields of war or those who fled from the war leaving their land behind. The Khalifah will dispose of it as he sees fit and of interest to Islam and Muslims.

4. Buildings and Roofed Houses (Al-Musaqafat)

These are the palaces, buildings or roofed houses seized by the State in the land it conquered and which were designated to the offices and departments of the conquered state, or to its institutions, utilities, universities and schools, hospitals, museums, companies and factories. They were also properties owned by the State, its rulers, leaders or those who fled the war or the battlefield, or those who were frightened of the Muslims and fled leaving them behind. All these palaces, buildings and roofed houses become booty and spoils to the Muslims, and they are due to the Bait ul-Mal and owned by the State.

Similarly every building or roofed house built by the State or purchased by funds from Bait ul-Mal is owned by the State and is designated for the offices of the State or its institutions, departments, utilities, universities and schools, hospitals or any utility which it supervises. The State also owns every building or roofed houses awarded, donated or bequeathed to her, or inherited from those who have no inheritor or from the apostate who has died or been killed due to his apostasy.

Utilising the State Properties

Shari’ah has entrusted to the Khalifah the taking care of the affairs of Muslims, discharging their interests and fulfilling their needs with what is of good and benefit, according to his own Ijtihad. He has to utilise the State properties to the best of his ability, so as to increase the revenues of Bait ul- Mal, to benefit all Muslims, and to prevent the State properties from being neglected, their benefits wasted and their revenues stopped.

The Messenger of Allah (saw) , and the Khulafa’a after him, all used to utilise these properties according to what they saw as beneficial to Islam and Muslims.

Investing the State properties does not mean that the State becomes a merchant, a producer or a businessman, such that it behaves as a merchant, manufacturer or businessman. The State is a guardian, therefore there should appear in its utilisation of the State properties, the taking care of the affairs of the people, discharging their interests and providing for their needs. So its job in principle is guardianship and not one of acquisition.

The State properties can be used in a number of ways including: -

1. Sale or leasing: All that which is State property and the public interest also requires the giving of its ownership, or the ownership of its benefit to the people, of land or buildings, it may sell or rent to them according to its view in achieving the benefit. This is whether it is land within a town to establish markets or houses or outside or close to it to establish warehouses or enclosures for cattle, sheep, livestock or domestic birds, or at the coast of seas or rivers to establish factories or economic installations or cultivated agricultural land for farming and forestation. Agricultural land is an exception to this and is only sold not rented.

2. Utilising a land which is mostly planted with trees and owned by the State is given to people to work in it, in return of a part of what it produces such as a quarter, a third or a half, similar to what the Messenger of Allah (saw) did with the people of Khaybar, Fadak and Wadi al-Qura.

3. Utilising the cultivated agricultural land by employing workers to till, farm and take care of it.

4. Reviving stagnant, wide-beds of streams, swamps, thickets, marshes swamps by blocking water from them, creating rivulets for them and discharging water from them and drying them so as to become suitable for cultivation and forestation.

5. Allocating land: This is carried out by the Khalifah by allocating land belonging to the State to people as he sees beneficial to Islam and Muslims. He may allocate this to someone rich or he has done service to Islam as he may allocate to people to reconcile their hearts to Islam. He may also allocate land to the peasants who need a means of sustenance. He also allocates land for cultivation so that it does not remain neglected or to increase its produce and fruits. He may allocate whenever he sees a benefit in doing so. The Messenger of Allah (saw) and the Khulafa’a after him allocated land as was previously mentioned in the Ahadith on this issue. Allocation could be of either Ushri land or Kharaji land. If allocation is from Ushri land, (that is similar to the land of the Arabian peninsula and all lands whose people embraced Islam upon it like Indonesia), then the Khalifah is permitted to give the ownership of its neck (Raqaba) and benefit to the allottee (al-muqta’a) or he may give its benefit only without its neck, permanently or for a limited time, as he sees beneficial to Muslims. This applies whether the land was dead (uncultivated) land which has never been cultivated or it was cultivated then neglected thus becoming dead, or it was cultivated land suitable for cultivation and forestation. In all these situations, ownership is not established by allocation alone, but by reviving the allocated land if it is dead land or planting crops and fruits if it was cultivated land. Allocation gives someone a legal right but ownership is not established except by completing cultivation in dead land or planting in cultivated land. Nothing is due upon this allocated land except the tenth (Ushr) of the produce of the land as Zakat if there is Zakat due on such produce after it reaches the Nisab. Absolutely no Kharaj is obliged upon it as there is no Kharaj on Ushri land. If the allocation is from Kharaji land which is the land opened by conquest such as Iraq, Ash-Sham and Egypt-then it has to be examined. If the allocation is from cultivated land, whether Kharaj has ever been imposed upon it or not, then the allottee will only possess its benefit not its neck as its neck is owned by Muslims. The Khalifah may grant ownership of the benefit to the allottee permanently or for a limited time as he sees beneficial for Muslims. Kharaj is obliged upon this allocated land, and ushr on the crops and fruits upon which Zakat is obliged if it reaches the Nisab after paying Kharaj from it. From Musa b. Talha, he said: “that Uthman b. Affan made allocations to five of the Prophet (saw) ’s companions, Az-Zubayr, Sa’d ibn Mas’ud, Usama b. Zayd and Khabbab b. Aratt, and he said: ‘My neighbours from among them were Ibn Mas’ud and Khabbab.’” Abu Yusuf said: “Abu Hanifa narrated to me from those who narrated to him saying: ‘Abdullah b. Mas’ud had Kharaji land as did Khabbab, Hussein b. Ali and others among the Companions, and also Shuraih, and they paid Kharaj upon it.” If the allocation is from uncultivated land then it is examined. If the allocated land was uncultivated from the beginning of time, or it was cultivated and tilled then became neglected and uncultivated before Kharaj was imposed upon it, like the wide-beds of water (al-bataih) in Iraq lying between Kufa and Basra, then the Khalifah can allocate both the neck and benefit of such land to the allottee or the benefit alone. Ownership of this land is not accomplished except by reviving it after its allocation. While the allocation gives the allottee a legal right in it, ownership is not completed except after achieving its cultivation and this must happen before the end of three years after the allocation. This came in the narration narrated by Tawus from ‘Umar ibn Al-Khattab who said: “The muhtajir (who shield a land) has no right after three.” From Muhammad (saw) b. Ubaid ath-Thaqafi, he said: “‘Umar b. al-Khattab allocated land in Basra to a man from Basra called Nafi’ Abu Abdullah which was Kharaji land that did not harm any Muslim when he grew reeds for his horses. ‘Umar wrote to Abu Musa al-Ash’ari that if it is as he says then allocate it to him.” Uthman b. Affan allocated to Uthman b. Abi al-‘As ath-Thaqafi land in Basra that was salt-marsh and forest which he removed and cultivated.

If this land is allocated to a Muslim then Ushr is due upon it while Kharaj is not due. Its rule is like the rule of uncultivated ushri land that is allocated and cultivated due to the Ahadith about this. From ‘Umar b. al-Khattab from the Messenger of Allah (saw) he said: “Whoever revives dead land then it is for him.” And from ‘Amru b. Shu’aib from his father from his grandfather from the Prophet (saw) , he said: “Whoever cultivates dead land then it is for him.” If this land is allocated to a Kafir Zimmi then Kharaj is due upon it like the land upon which its people are allowed to stay after its conquest in return for Kharaj, that they have to pay.

If this allocated land had previously been cultivated and Kharaj imposed upon it, then Kharaj is obliged whether it is allocated to a Muslim or Kafir Zimmi. For whatever Kharaj has been imposed upon conquered land continues until Allah (swt) inherits the earth and whoever is upon it.

6. Permission and encouragement to revive dead land. Such as when the Khalifah permits to the people, and urges them to revive uncultivated land, whether Ushri or Kharaji land which was uncultivated from the beginning of time and thus it was never cultivated, or it was previously cultivated then neglected and became dead.

With regards to reviving land, this could be for residence or establishing warehouses, factories or enclosures for animals or birds, and is accomplished by building and roofing as this is the first completion of architecture which makes possible its use as residence or as for warehouses, factories or putting animals or birds in. If the revival is for agricultural purposes then it is accomplished by encompassing the land to seclude it, distinguishing it from other lands, transferring water to it or digging a well in it, if it is a dry land where crops depend upon irrigation. It could be by blocking the water from it and drying it if the land is submerged with water or by ploughing the land, flushing the highland and inundating the lowland. By completing the revival, ownership is completed due to what came in the Ahadith on reviving (land), and the Hadith of ‘Umar from the Messenger of Allah (saw) : “Whoever revives dead land then it belongs to him.”

As for seclusion, it only establishes a legal right to the Muhtajir in what he secluded but does not complete his ownership. If three years passed without cultivating what was secluded then his right expires in that land. From Tawus from ‘Umar, he said: “The Muhtajir has no right after three.”

Whoever revives dead Ushri land, Muslim or Kafir, owns its neck and benefit. ‘Ushr as a Zakat is due on the Muslim in the crops and fruits upon which Zakat is obliged, if they reach the Nisab. Kharaj is not due in it as there is no Kharaj on ushri land. As for the Kafir, neither Ushr or Kharaj is upon him as he is not of the people of Zakat and Kharaj is not due on Ushri land.

Whoever revives dead Kharaji land upon which Kharaj had never previously been imposed owns both its neck and benefit, if he is a Muslim, and its benefit alone if he is a Kafir. ‘Ushr is due upon the Muslim not Kharaj, while Kharaj is due upon the Kafir equal to what was put upon its people when it was conquered in return for Kharaj.

Whoever revives dead Kharaji land upon which Kharaj had previously been imposed before it changed into dead land, owns its benefit alone not its neck whether he is a Muslim or Kafir. Kharaj is due upon him for it being a conquered land upon which Kharaj was imposed, so Kharaj must remain imposed upon it, whether owned by a Muslim or Kafir, until Allah (swt) inherits the land and whoever is upon it.

All the above apply if the revival was for agriculture.Whereas if the revival was for residence, or for establishing factories, storehouses or enclosures, there is no Ushr or Kharaj due upon it, whether this is Ushri or Kharaji land. The Sahabah who conquered Iraq and Egypt acquired land for building houses in Kufa, Basra and al-Fustat and settled there at the time of ‘Umar together with other people and did not have Kharaj imposed upon them, nor did they pay Zakat, as Zakat is due upon crops and fruits not houses and buildings.

Utilities

Utilities (Marafiq) are the assets from which benefit is derived, such as those of a house, land and government. This is derived from the word Rafiqe Bihi which means ‘helped him and benefited him’. The public utilities are the assets and services established by the State for the benefit of all citizens, and they include:

1. Communications Services such as for letters, telephones, telegrams, telex, television and satellite communications etc.

2. Money-exchange Services for transferring, depositing, changing currency, minting gold and silver currency or transforming it into ingots. The State bank will take charge of these services and those non-usurious services allowed to be executed.

3. Public Transport Services, such as trains in other than the public roads, as railroads in public roads are public property following the rule of public roads, which also applies to planes and means of sea transport.

These means are of individual property which are permitted for individuals to own. At the same time, it is allowed for the State to own these means, such as planes, trains and steamships, if it sees it fit for Muslims to help them and to facilitate their transport.

4. Factories: The State is obliged to set up two types of factories, owning to the obligation upon it to take care of the interests of the people.

The first type are factories related to the public property assets like factories for mining, treating and smelting minerals, as well as factories for extracting and treating gas. This type of property is allowed to be owned as public property conforming to the products which is being produced or to which it relates. Since the public property assets are owned as public property for all Muslims, the factories producing them can be owned as public property for all Muslims and the State establishes them, on behalf of Muslims.

The second type are factories related to heavy industry and manufacturing weapons. This type of property is allowed to be owned individually as it is of the private properties. However, these types of factories and industries require immense funds which are not available to individuals. In addition, these heavy weapons are no longer of the private property which can be owned by individuals unlike in the time of the Messenger (saw) and the Khulafa’a after him. Instead they have become State property which the State takes charge of it furnishing as a duty upon it, due to its responsibility of guardianship, particularly after weapons have developed in a terrifying manner and become heavy equipment of high cost. Due to all this, it became an obligation imposed upon the State to establish factories for weapons production and for heavy industry. This does not prevent individuals from establishing these industries.

These are the four utilities which the state is obliged to provide the people with, as a duty upon it in taking care of their affairs, and which accrue income. Since these utilities are owned by the State, their revenues and income would be owned by the State as well. They would be of the revenues of Bait ul-Mal, and placed in the department of the war booty and Kharaj, and spent on its other expenses.

The other utilities which the State has to provide and establish for them as services for them in taking care of their affairs, include schools and universities, hospitals, public roads and other services essential in taking care of the people’s affairs. Neither do they generate any revenue but instead require permanent expenditure, and there is absolutely no revenue derived from it.

Public properties are the assets which the Legislator (Ash-Shari’) has given their ownership to all the Muslims in association between them. He (swt) has permitted individuals to benefit from them but prevented them from possessing them. These assets are represented in three main types: -

1. Public utilities which the public cannot do without in their daily life.

2. Assets whose natural formation prevents designation to specific individuals from their ownership.

3. Replenishable minerals which do not deplete.

These three main types of properties, and those which branch out from them, and revenues they produce, are possessed by all the Muslims and jointly owned between them. They represent one of the revenues of Bait ul- Mal of the Muslims, distributed by the Khalifah among them according to his own Ijtihad, within the rules of the Shari’ah and according to the interest of Islam and Muslims.

The First type of Public Properties

This is the public utilities of all people that they cannot do without in their daily life and they disperse in case of their absence, such as water. The Messenger of Allah (saw) has explained the description of these utilities and clarified them in the most perfect manner by the relevant Ahadith reported from him. From Abi Khurash from some of the companions of the Prophet (saw) , he said: “The Messenger of Allah (saw) said: ‘Muslims are partners in three (things): Water, pasture and fire.’” And in another transmission: “People are partners in three: water, pasture and fire.” From Abu Hurayra that the Prophet (saw) said: “Three should not be withheld: Water, fire and pasture.” It was also reported from him his saying: “The Muslim is a brother to the Muslim, they accommodate each other over water and trees.” Water, fire and pasture were among the first things that the Messenger (saw) permitted to all the people, and he made them partners in them and forbade them from protecting any part of them against the use by all Muslims as it is a right for all Muslims. Thus people can camp in their travels and bedouins live in a land which has vegetation (plants) that Allah (swt) has brought forth for grazing livestock without the effort of anybody in ploughing, planting or irrigation; such land is for the one who reaches it first. No one can be singled out in using it to the exclusion of other people. Rather, they can graze their cattle and livestock and beasts jointly, and they use the water which is there in the same way as well. People are partners in such properties.

This matter is not restricted to these three assets mentioned in the previous Ahadith. It rather includes everything that can be described as being from the public utilities. The evidence to this is, that at the time the Messenger of Allah (saw) said: “People are partners in three: water, pasture and fire”, he consented that individuals in Khayber and Taif own their wells as individual property such that they drink from them, water their cattle, livestock and gardens and he did not prevent them from owning them. These wells were small such that the need of the public did not relate to them. To reconcile these two Hadith, it becomes clear that when water is related to the need of the community it would be a public property and is prevented from being a private property.Whereas, when the need of the public is not related to it, it can be a private property and thus individuals are allowed to own it. The general rule regarding whether there is a need for the public in it is that the public cannot do without it in their daily life such that, if it were not found, the community would disperse in search for it. This is like the tribes who used to disperse when water was not found or when pasture for their cattle and grazing livestock was lost. Therefore, everything to which there is a need of the public, (such that) they cannot do without it in their daily life and they scatter once they did not find it, is of the public properties.

Connected with this type of public properties are all tools used in them, for they take their rule and similarly become public property. Thus the machines used in drawing out public waters from springs, wells, rivers and lakes and those used to pump these waters and the conduit pipes that deliver them to the houses of people, are also public property. This is because the water which they draw out, pump and supply is public property. However, if these machines are set up at lakes and major rivers like the Nile and the Euphrates, then it is permitted for these machines to be owned individually and be used individually. Similarly, the machines used to generate electricity from public waterfalls like canals and rivers, and their poles, cables and power stations are public property. This is because these machines produce electricity from assets of public property and therefore take its rule. Similarly the machines used to generate electricity and its power stations, poles and cables are public property even if electricity is produced by the method of machines or without using waterfalls, if electricity is generally used for fuel, and its use for lighting is secondary. This is like when it is used for cooking, heating, driving factory machines or melting minerals. This is because electricity would then be fire, and fire is of the public properties. Thus its generators, stations, machines, poles and cables are public property, following it.

Similarly the generators of electricity, its power stations, poles and cables are of public properties if these tools are erected in public roads, whether the electricity is used as fuel or for lighting.

The reason for this is that the public road is not allowed to be owned by any individual or company so as to have any part of it solely for oneself, where it is protected for oneself and people are prevented from using it. This is because protection (Hima) of public properties is not allowed except for the State. But if electricity was generated from machines and its generators, stations, poles and cables were placed in other than the public road, such as being placed in the properties of its owner, then it would be private property, and it is permitted for individuals to possess it privately.

It is permitted that factories of gas and soft (bituminous) coal be public property, following that gas and soft coal are public property, for they are of the replenishable minerals, and of fire, since replenishable minerals and fire are of public property.

The Second Type of Public Properties

These are the assets whose natural formation prevents individuals specifically from their possession. This type of public property, being of the public utilities like the first type and it is included by the evidence of the public utilities, yet the nature of its formation also prevents designating it to individuals. This is contrary to the first type as the nature of its formation does not prevent designating individuals with it. Thus, small wells in which there is no established need for the community, are owned individually.

The evidence that this type is of the public properties besides the evidences for the first type, is the saying of the Messenger (saw) : “Mina is the resting place of the one who reaches first.” This is in addition to what came from the Messenger (saw) that he consented to people being partners in owning the public road and not allowing an individual specifically owning it. Mina is a famous place outside of Makka Al-Mukarramah, and it is a place in which the pilgrims camp after completing the standing at ‘Arafat, so as to carry out specific rites of the Hajj, like the stoning of the Jimar, slaughtering the sacrificial animal, Eid sacrifice and staying overnight. The meaning of its being a resting place for the one who reaches first is that it is owned by all the Muslims so that the one who reaches first to any part of it and stops by in it then it is for him, as it is a partnership between them and is not owned by anyone such that he prevents others from it. Similar to that is the public road as the Messenger (saw) had consented to joint partnership of the people in it, and the right of everyone to passage, and he made the removal of harm from it a form of charity, as came in the Hadith: “The removal of harm from the road is charity.” He (saw) prohibited the sitting down on the roads and said: “Beware of sitting on the road” as sitting might prevent the passage of people or restrict it for them.

Examining the reality of Mina and the reality of public roads shows that the nature of their formation prevents designating an individual for their possession. In Mina pilgrims halt to carry out some of the rites of Hajj and the nature of its formation as being a place to carry out the rites of Hajj for all Muslims prevents specifying a particular individual or individuals with it the same way as ‘Arafat and Muzdalifa. The public road is similarly for all the people intended for the passage of everyone, and it is not befitting to specify a particular individual or individuals with it. Thus, the evidence which came in their regard applies to everything whose nature of formation prevents specifying an individual or individuals with it, and it is thus a public property. Therefore seas, rivers, lakes, oceans, gulfs, straits, general canals like the Suez Canal, the public parks and mosques are all public property for all the citizens.

Connected to this type of public properties are railways, tramways, electricity poles, water mains ducts and sewage system which pass by the public road: these are all public property, following the road which is public property. They are not allowed to be private property as it is not allowed for anyone to be specified with public property in a permanent manner nor to protect (for oneself) what is for the public, due to the statement of the Messenger (saw) : “No protection (of property) (Hima) except for Allah (swt) and His Messenger (saw)” i.e. except for the State. The meaning of the Hadith is that it is not allowed for anyone to protect for himself that which is for all the people. What designates tramways, electricity poles, water ducts and sewage systems, which are on public roads as public property is that they occupy a section of the public road permanently and it is permanently allocated to them, thereby becoming of the protected property, which is not allowed for other than the State. Therefore, they become public property.

The Third Type of Public Properties

This is the replenishable minerals which do not deplete completely, and are the vast amount of minerals which are not limited in measure. As for insignificant amounts of minerals which are limited in measure, these are private property that individuals are permitted to own as the Messenger of Allah (saw) gave Bilal ibn Al-Harith al-Muzni the minerals of the Qabaliya in the area of Al-Far’a in Hijaz. Bilal had asked the Messenger of Allah (saw) to allocate them to him, so he granted them to him and made him the owner. Therefore the deposits of gold and silver, and other types of minerals, present in small non-commercial amounts are private property. Individuals are permitted to own them as is permitted for the State to allot them to the people. In this case people have to pay one-fifth of what they extract of them to the Bait ul-Mal, whether they extract a little or a lot.

As for the vast minerals, not limited in measure, these are public property owned by all Muslims and are not allowed to be assigned, given in ownership or allotted to any person or persons. Similarly, it is not allowed to give concession for their mining to individuals or companies. Rather they must remain a property jointly owned by all Muslims and the State should carry out their extraction, purification, smelting and selling on their behalf and place their price in the Bait ul-Mal of the Muslims. There is no difference in the rules of these minerals whether they are apparent on surface and are reached to without trouble like salt and antimony (Kohl), or are underground and deep in earth and cannot be extracted except by hardship, labour and great trouble like gold, silver, iron, copper, lead, tin, uranium, phosphate and other minerals; nor whether they are solid, like gold and iron, or liquid, like petroleum, or gaseous like natural gas.

The evidence that these vast minerals of unlimited measure are public property, is what is narrated from Abyadh b. Hammal al-Mazini “that he called on the Messenger of Allah (saw) and asked him to allocate to him the salt and he allocated it to him. When he turned away a man in the gathering said: ‘Do you know what you have allotted to him? Verily you have allotted to him replenishable water’, so the Prophet (saw) withdrew it from him.” The fact that the Messenger of Allah (saw) took back from Abyadh b. Hammal the salt he had allotted to him, after he knew that it was abundant, is an evidence that any vast quantity mineral, which does not deplete, is not allowed to be owned by individuals as it is an ownership of all the Muslims. This matter is not specific to salt, rather it is general for all minerals whatever their type, on condition that they are of the same status as the vast quantity of water (salt mineral) i.e. which is replenishable.

As minerals which are replenishable are public property for all citizens, it is not therefore permitted for the State to allocate them to individuals or companies nor to allow individuals or companies to mine them for their own benefit. Rather it is obligatory upon it to mine them by itself on behalf of the Muslims as a form of looking after their affairs. All that it extracts will be a public property for all the citizens.

Extraction of these minerals, particularly that which is underground whether liquid or solid, requires machines and factories. The State, in all circumstances, extracts these minerals on behalf of the citizens in its capacity as public property. This extraction will either be directly by the State via machines and factories owned by the State they are from the public properties, or it will extract them through individuals in return for wages paid based on their efforts accrued or the machines they own.

If it extracts these minerals with machines and factories which it owns, it is permitted that the ownership of these machines and factories remain as property of the State. The State might also convert them to public property, which is more preferable than to remain as a state property. Thus they take the rule of the ownership of these minerals i.e. becoming public property. This follows the rule of the ownership of the minerals they produce. This is derived from the prohibition of manufacturing alcohol and prohibtion of owning an alcohol factory following the prohibiton of alcohol taken from the Hadith of Anas: “The Messenger of Allah (saw) cursed ten (persons) in relation to alcohol: The one who presses (produces it) and the one for whom it is pressed (produced)…” Hadith. And from the Hadith narrated by ibn ‘Umar: “ alcohol was cursed in ten ways: Curse is for itself, and its drinker, the one who serves it to another (to drink), its vendor, its purchaser, presser (one who squeezes it), and the one for whom it is pressed…” These Ahadith prohibited the pressing of alcohol and its manufacture, despite the fact that pressing grapes for other than manufacturing of alcohol is not prohibited, and following from this it is prohibited to own a factory for producing alcohol. Thereupon it is permissible to make the tools and factories owned by the State to extract the replenishible minerals public property, following that these minerals are public property, and therefore the price of these machines and factories is of the public property.

As for the mining of these minerals by the State through using individuals in return for wages, based on labour, benefit accrued or the machines, which they possess, these machines and factories remain owned privately by the individuals, due to the fact that a factory in itself is of the private property. The Messenger (saw) had consented to individuals owning factories as private property, and he manufactured his pulpit (Mimbar) and ring from them.

However, the individuals’ ownership of these machines and factories does not allow them to mine or extract the replenishable minerals for themselves, for these minerals are owned by all Muslims. No one is allowed to have concession to an individual among them, but it is permitted that they be hired by the State for a defined wage in return for operating them in mining these minerals. All that they mine of minerals will be owned as public property for all Muslims and its revenue will be placed in Bait ul-Mal of the Muslims in the section of Public Property, as Bait ul-Mal is its place of keeping though it is owned by all Muslims.

Therefore, it is allowed for the machines and factories used for the mining of replenishable minerals and gas to be owned by the State or it may be public property, and it is allowed for them to be owned as private property by individuals or companies, from whom the State might hire them.

The Manner of Utilising the Public Property Assets and their Revenues

As the public property assets and their revenues are owned by all the Muslims, every citizen has the right to benefit from the assets of public property and their revenues, whether he is a man or woman, young or old, righteous or evil.

The public property assets are not the same in the manner of utilising them. Some of them are easy for a citizen to utilise directly with the use of his machines, and others are not as easy.

As for the first division, e.g. water, pasture, fire, public roads, seas, rivers, oceans, lakes and great canals, a person might benefit directly from water, pasture and fire by himself. So he can go to wells, springs and rivers in order to drink from them and carry water from them to give to his cattle and grazing livestock. He can go to grazing pastures in order to graze his cattle and livestock and go to the forests to gather wood from.

He is also allowed to erect a machine at the big rivers to irrigate his plantation and trees from them as long as the big rivers are wide enough for all the people, and erecting personal machines does not harm any of the Muslims. Similarly, it is for each individual to benefit from the public road, seas, rivers and general canals like the Suez Canal. So he has the right to walk in the public road by himself or with his animals or cars. He can also travel in the seas, rivers and general canals with his boats and ships, for he does not harm any Muslim nor would he restrain anyone, due to the width of the public road, seas, rivers and canals.

As for the second division of the public property assets which are not easy to benefit from directly and thus require hardship, difficulty and mining like petroleum, gas and minerals, the State is the one who supervises them and mines them on behalf of the Muslims and places their revenues in Bait ul-Mal of the Muslims. The Khalifah is the only competent person for distributing their proceeds and revenues according to his own Ijtihad, within the rules of Shar’a and according to what he sees fulfilling the interest of Muslims.

It is possible to proceed in distributing the proceeds and revenues of public properties in the following forms:

Firstly: To spend upon what is related to public property, so funds are spent on:

1. The department of Public Property; its buildings, offices, records, studies and employees.

2. The experts, advisers, technicians and employees who are employed to study, explore and drill for petroleum, gas and minerals, and work to extract, process and treat them to make them suitable for use. And also those who are employed to supply water and produce and supply electricity.

3. For purchasing machines, factories and the necessary means of transportation so as to mine and refine petroleum and gas, to process, purify and treat minerals and make them suitable for use, and upon the machines and factories necessary to manufacture and utilise public property assets.

4. The machines to extract water and pump it, and the pipes to supply it.

5. The electricity generators, power stations, its poles and wires.

6. Railroads and tramways

Each of these expenditures relates to public property, its administration and treatment so as to benefit from it. Thus the expenditure upon these matters should come from the revenues of the public property, just as spending upon the collectors of Sadaqat (obligatory charity) comes from the money of Sadaqat:

“And those employed over it” [At-Tauba: 60]

Verily Allah (swt) has made for them a portion of the Sadaqat in return for their of collection it.

Secondly: Distribution upon individual citizens who are the owners of these public properties and their revenues. The Khalifah is not restricted in this distribution in any specific manner. It is for him to distribute amongst them of the public property assets like water, electricity, petroleum and gas equal to their need for their private use in their homes and markets without price. He can as well sell it to them at a cost price only or at the market price just as he can also distribute amongst them money, out of the profits of the public properties. He would proceed in all this according to what he views as good and of benefit for the citizens. Thirdly: The state expenditures nowadays have become enormous since its responsibilities have widened and its expenditures increased. The general revenues due to Bait ul-Mal of Jizya, Kharaj, ‘Ushr and Khums may not meet all the public expenditures as was the case in the past, at the time of the Messenger (saw) the Khulafa’a after him, the days of the ‘Umayyads and Abbasids and even in the days of the Uthmanis. This is after the huge development in the means of life and its civic forms, particularly in the weapons of war which has reached a terrifying level hence calling for increase in expenditure. Therefore, it is inevitable that the state has another source of income to cover the expenditures due on Bait ul-Mal whether there are funds in it or not; the obligation to spend on matters is transferred in case there are no funds in Bait ul-Mal. This is like the expenditures of the offices and departments of the State, the compensation of the rulers, the provision of the army, salaries of the civil servants, the expenditures to supply water, open roads, establish schools, universities, mosques and hospitals which are necessary for the Ummah and she cannot do without and would suffer in case of absence. The spending upon the poor and needy, wayfarers, orphans, widows and disabled in need. Similarly is the spending upon Jihad, preparation of a strong army and supplying all the requirements of the heavy industry to produce modern developed weapons, both nuclear and otherwise as well as missiles, planes, tanks, artillery, warships. This is in response to His saying :

 

“Prepare for them as much as you are able of force and tethered cavalry to frighten by it the enemies of Allah (swt) and your enemies, and others whom you do not know (but) Allah (swt) knows them.” [Al- Anfal: 60]

Each of these areas of expenditure requires a considerable source of revenues in order to spend on them, and there is no way for the Khalifah to cover the expenditure upon these areas except by one of three ways. This is in addition to what may come from the new conquests. These three ways are:

1. Borrowing from foreign countries and international financial institutions.

2. Protecting some of the public property assets of petroleum, gas and minerals.

3. Putting taxes on the Ummah. Borrowing from Foreign Countries

As for borrowing from foreign countries or international financial institutions, it is not allowed by Shar’a because such loans would not be except with bank interest or with imposed conditions. Bank interest is prohibited by Shar’a, whether from individuals or countries, as the imposition of conditions gives the lending countries and institutions control over Muslims and makes the will of Muslims and their disposition subject to the will of the lending countries and institutions, a matter which is prohibited by Shar’a. The international loans were among the most dangerous afflictions and among the causes for imposing the authority of the Kuffar upon the Islamic lands; and how often has the Ummah suffered from the calamities of these loans? Therefore, the Khalifah is not allowed to resort to international loans to cover the expenditure on these areas.

Protecting some Public Property Assets (Hima)

Protecting some of the public property assets of petroleum, gas and minerals, such as when the Khalifah designates specific petroleum and gas wells or specific mineral mines like, for example, phosphate, gold and copper mines, where he protects them and designates their revenues for the expenditure on the mentioned areas, is allowed by Shar’a. It is a useful method to raise the necessary revenues to spend in these areas. It is permitted for the Khalifah to do this based on the following:

1. The Messenger of Allah (saw) and the Khulafa’a after him shielded specific places which were part of the public property. From Ibn ‘Abbas from Sa’ab b. Juthama, he said: “The Messenger of Allah (saw) said: ‘No protection (Hima) except for Allah (swt) and His Messenger (saw)’”. That is, no protecting except for the State similar to what Allah (swt) and His Messenger (saw) shielded for Jihad, the poor, the needy and the interests of Muslims generally. This is not similar to what they protected in the days of Ignorance (Jahiliyyah) where the noble alone among them protected for himself. From Nafi’ from Ibn ‘Umar: “The Prophet (saw) protected An-Naqi’i (this was a famous place in Madinah) for the horses of the Muslims.” Similarly Abu Bakr protected Al-Rabatha for the camels of Sadaqat and appointed his servant Abu Salama, over it. ‘Umar also protected Al-Sharaf in Al-Rabatha and appointed his servant, who was called Hani.

This protection was of places of pasture and grazing and they were of the public properties. Al-Naqi’i which was protected by the Messenger of Allah (saw) was outside Madinah, and water used to stagnate in it and pasture would grow when it dried up i.e. it was owned as public property by all Muslims. Abu ‘Ubaid, in explaining this, after mentioning the Hadith “No protecting except for Allah (swt) and His Messenger (saw)” said: “The interpretation of the protection which is prohibited in our view (and Allah (swt) knows best) is that you shield the things which the Messenger of Allah (saw) made all the people partners in, which is water, pasture and fire.”

The Messenger of Allah (saw) , Abu Bakr and ‘Umar designated places and protected them for the horses which were,used in the way of Allah (swt), the camels and livestock of Sadaqat, and they used to prevent others from grazing in them. From ‘Amir b. ‘Abdullah b. Az-Zubair (RA), he said: “A bedouin came to ‘Umar ibn Al-Khattab (RA) and said: ‘O Amir al-Mu’mineen, our land that we fought upon in (the days of) Jahiliyyahh and upon which we became Muslims in (the days of) Islam, why did you protect it?’ ‘Umar bowed (his head), twisted and breathed into his moustache (whenever a matter troubled him, ‘Umar would twist his moustache and breathe into it) and when the bedouin saw how he reacted, he repeated his question to him. ‘Umar replied: ‘Property is the property of Allah (swt), and the servants are the servants of Allah (swt). By Allah (swt), were it not for what I carry upon it in the way of Allah (swt), I would not protect a handspan by handspan.’” And from Aslam, he said: “I heard ‘Umar b. al-Khattab as he was speaking to Hani when he appointed him over the Hima of Al-Rabatha: ‘O Hani, withhold your hand (i.e. restrict yourself) from the people and fear the Dua’a of the oppressed for it is accepted. Allow to enter the owner(s) of camel and sheep, but turn away the grazing livestock of ibn ‘Affan and ibn ‘Awf for if the livestock of these two die they will return to palm trees and palms. But if the livestock of this miserable man die he will come shouting: ‘O Amir al-Mu’mineen, has the pasture become of little importance to me or has gold and money suffered loss?’ For verily it is their land upon which they fought in (the days of) Jahiliyyah and became Muslims in (the days of) Islam, and their view is that we are oppressing them. Were it not for the livestock upon which things are borne in the way of Allah (swt), I would never have protected anything from the people of their land.’

These Ahadith and other reports denote clearly that the State can shield from the public properties what it needs for Jihad and what relates to it, and for any other interest of the Muslims, however much it may be.

2. Allah (swt) has obliged Jihad upon Muslims collectively, their rich and their poor, and obliged them to make Jihad with their wealth and persons. Allah (swt) said:

“But the Messenger (saw) and those who believe with him strive with their wealth and their lives. Such are they for whom are the good things. Such are they who are the successful” [At-Tauba: 88] And He said:

“Those who believed and emigrated and fought with their wealth and persons (lives) in the way of Allah (swt).” [Al-Anfal: 72] And He said:

“Verily the believers are (only) those who believed in Allah (swt) and His Messenger (saw) then did not doubt, and fought with their wealth and persons (lives) in the way of Allah (swt). Those are the sincere ones” [Al- Hujurat: 15] And He said:

“Fight in the way of Allah (swt)” [Al-Baqarah: 190] And He said:

“Fight those who do not believe in Allah (swt) and the Last Day” [At-Tauba: 29] And He said:

“And fight the polytheists all together as they fight you all together” [At-Tauba: 36]

These Ayat are explicit in obliging Jihad by the person and wealth upon the Muslims. The Muslims at the time of the Messenger (saw) , and the Khulafa’a after him, used to make Jihad with their wealth and persons. They used to equip themselves with what they need for Jihad of weapons, horses, camels and provisions, without waiting for the State to prepare the same for them, as this is what Allah (swt) obliged upon them.

Based upon this, the spending upon Jihad and what it requires is transferred to the Muslims when there is not enough funds in Bait ul-Mal to spend upon it. It is left for the Khalifah to get the necessary funds for this expenditure from the Muslims or take it from the revenues of the public property, which is the property of the Muslims. This could be by protecting from it what would cover these expenditures instead of collecting them from the Muslims.

3. ‘Umar ibn Al-Khattab rejected dividing the lands of Iraq, Ash-Sham and Egypt between those who conquered them with their swords after they had requested of him to do so. This is, despite his knowledge that they had conquered them with their swords and that they had become war booty for them. He knew that war booty is divided between the conquerors where four-fifths of it goes to the fighters who participated in the battle. And he knew that the Messenger of Allah (saw) had divided the land of Khayber between the warriors who had participated in the battle. Despite all this, he rejected dividing it between them based upon his understanding of the Ayat of booty (Fai’) and his understanding that it is inevitable that there should exist a permanent and constant source of income to give as grants and to spend upon the interests of the State, the armies, frontiers, poor, needy, orphans, widows and to pay for those who take care of the interests of the Muslims. This is explicit in his debate with those who requested from him to divide the land, and in presenting his argument before the Ansar whom he had gathered to consult with them when he said: “What about those Muslims who would come after them and find the land with its infidel inhabitants has been divided, inherited from forefathers and possessed. This is not a (good) opinion.” And he said: “If the land of Iraq with its infidel population and the land of Ash-Sham with its infidel population are divided, with what the frontiers be barricaded and what would remain for the children and widows of this land and other lands like Iraq and Ash-Sham?” And he said to the Ansar: “I have thought that I should hold back the land with its infidel population and impose upon them kharaj and upon their heads Jizya which they need to pay so that it becomes booty for the Muslims, the fighters, the offspring and those who come after them. Do you not see these frontiers? They definitely require men to stay in permanently? Do you see that these great cities like Ash-Sham, Al-Jazira, Kufa, Basra and Egypt definitely require to be manned with armies and to pay grants to them. From where would these armies be paid if the land is divided with its infidel population?”

This debate and these arguments clarify that ‘Umar understood the necessity for a permanent and constant source of income to spend from it on Jihad and the areas upon which the State is obliged to spend. He considered that these conquered lands in Iraq, Ash-Sham and Egypt are the sources of income requested. Thus he did not divide them between those who conquered them, who were a minority among the Muslims, and left them to remain in the hands of their owners in return for Kharaj which they pay so as to spend from their on the interests of all the Muslims.

It is derived from this that the Khalifah, with greater reason, can protect what is owned by all the Muslims from the public properties, to spend from it on the areas which are obligatory upon the Muslims to spend on in case there are no funds in the Bait ul-Mal of the Muslims.

Jizya is a right that Allah (swt) allowed the Muslims to take from the Kuffar, in return for their submission to the ruling of Islam. The Muslims adhere to forbearing, protecting and ensuring the security of the Kuffar who give the Jizya. Jizya originates from the saying of Allah (swt) in Surah At-Tauba,

“Fight those who do not believe in Allah (swt) and the last day and who forbid not what Allah (swt) and His Messenger (saw) have forbidden, who do not practise the religion of truth, being of the people of the Book, until they pay the Jizya out of hand and are humbled.” (At-Tauba: 29)

Who are Jizya taken from?

Jizya is taken from the people of the Book, the Jews and the Christians, by evidence of the previous mentioned Ayah, “Being of the people of the Book” whether they are Jews, Christians, Arabs or non-Arabs. This is because the Messenger of Allah (saw) took Jizya from the Jews of Yemen and from the Christians of Najran. It has been narrated from Arwa ibn Az-Zubayr who said, “The Messenger of Allah (saw) wrote a letter to the people of Yemen saying, ‘…whoever is upon the religion of Judaism or Christianity is not forced to turn away from it and he must pay the Jizya.’” It has also been narrated from Ibn Shihaab who said, “The first to give the Jizya were the people of Najran who were Christians.” Abu Bakr took the Jizya from the Christians of al-Hira who were Arabs, and ‘Umar, likewise took the Jizya from the Christians of Ash-Sham who were both Arab and non-Arab.

Jizya is also taken from people other than the people of the Book namely from the Zoroastrians, Sabians, Hindus and the communists, because the Messenger of Allah (saw) took Jizya from the Zoroastrians of Hajr. It has been narrated from Hasan bin Muhammad (saw) who said, “The Messenger of Allah (saw) wrote to the Zoroastrians of Hajr inviting them to Islam and those who accepted were accepted into Islam and those who didn’t Jizya was enforced upon them, observing that their meat must not be eaten and their women must not be married.” It has been narrated from Ibn Shihab that the “Messenger of Allah (saw) took the Jizya from the Zoroastrians of Hajr,” and ‘Umar took the Jizya from the Zoroastrians of Persia and that Uthman took the Jizya from the Berbers. It has also been narrated that ‘Umar ibn Al-Khattab stopped from taking Jizya from the Zorastians until Abdur-Rahman bin Auf testified that the Messenger of Allah (saw) took the Jizya from the Zorastians of Hajr. Likewise, it has been narrated from the Messenger (saw) that he said, “Deal with them as you would with of the people of the Book.”

As for the Arabs who worshipped idols they are forced to accept Islam otherwise they would be fought against according to Allah (swt) ’s saying,

“Kill the polytheists wherever you may find them”, [At-Tauba: 5] and His ’s saying,

“You shall be summoned to fight against people of great strength, you shall fight or they shall submit(become Muslims).” [Al-Fath: 16]

This was in the year of Tabuk in the ninth year of Hijra in which Surah At- Taubah (Bara’ah) was revealed making the collection of Jizya from the people of the Book and the killing of the polytheists from the Arabs who worshiped idols as obligatory. The Arab people of who worshiped idols ceased to exist after the tenth year of Hijra.

As for the people or groups who were Muslim and then apostatised such as are present today, their current reality has to be examined. If they were born to parents who had apostatised and didn’t apostatise themselves, rather their parents, or grandparents, or great grandparents apostatised like the Druze, the Bahais, the Ismaelies and the Nusairis who made Ali god; all of them are not treated as apostates. They are rather treated as the Zoroastrians and the Sabians. Jizya is enforced upon them, their slaughtered meat is not eaten and their women cannot be wedded. However, if they renewed their Islam and entered Islam again, then the rule applied to Muslims would apply to them

As for those who apostatised from Islam themselves, be it they converted to Judaism, or Christianity, or communism, or to any thought which denies that Islam is a Deen revealed by Allah (swt) , or denies that Muhammad (saw) is the Messenger of Allah (saw), or denies the duty of implementing Islam, or denies some of the Quranic Ayat as the communists and those like them do, they are treated exactly like the apostates.

Jizya is taken from men who are sane and mature and it is not taken from the youth, the insane or the women. This is because when the Messenger of Allah (saw) sent Mu’az to Yemen, he ordered him to take a Dinar from every boy that had reached puberty. And ‘Umar wrote to the leaders of the armies saying, “Enforce the Jizya, but do not enforce it upon the women and the boys who had not reached puberty – namely do not enforce it upon boys unless they started to shave (their private parts) ie. they had become mature.” When the boy reaches maturity, or the insane regains sanity then the Jizya becomes mandatory upon him. If the maturity or the sanity, was attained at the beginning the of first year of his people, the Jizya is paid for the whole year with them, and if the maturity or sanity was attained during the year, a portion of the Jizya is paid with his people so that his year with their year is disciplined. It is also forced on the monk in the temples, the people of the monasteries, the ill, the blind and the elderly if they are prosperous. This is because the Ayah and Ahadith related to Jizya are general and include them and there is no text to exclude them. However, if they are entitled to charity, then the Jizya is lifted and is not collected from them because they cannot afford to pay it. And the Ayah says, “Allah (swt) does not charge a soul with more then it can bear.” And it has been narrated from ‘Umar ibn Al-Khattab that he passed by an old man from the Ahl az-Zimma begging from the people. He said to him, “what forced you to do that?” The man said, “The Jizya, old age and need.” So ‘Umar said to him, “We have not done justice to you, as we have taken Jizya from you in your youth then we have failed you in your old age.” He took him to his house and gave him something to eat. Then he sent him to the treasurer of the Bait ul-Mal and ordered him to stop taking Jizya from him and to give him from the funds of the Bait ul-Mal.

When is the Jizya Waived?

The Jizya is waived by embracing Islam, so whoever embraced Islam, the Jizya enforced on him is terminated, whether he became Muslim at the beginning of the year, in the middle, at its end or after its elapse, thus no Jizya is obliged on him at all. This is due to what Allah (swt) said, “Say to those who disbelieve, if they desist then Allah (swt) will forgive them for everything that has passed.” Ibn Abbas also narrated from the Prophet (saw) that he said, “The Muslim does not pay the Jizya.” The reason for Jizya is Kufr and Islam eliminates it, so it does not exist together with Islam. If Islam eliminates what preceded it of Shirk, Kufr and sins then how would it not eliminate Jizya and its humiliation?

It has been narrated from the Messenger (saw) that he said, “Islam has nullifies what preceded it.” It has been narrated from Masrooq that one of the non-Arabs embraced Islam and Jizya was taken from him. He came to ‘Umar ibn Al-Khattab and said, “O Amir-al Mu’mineen I have become a Muslim.” ‘Umar said, “Perhaps you embraced Islam seeking protection.” The man said, “Is there not in Islam that which guards me?.” ‘Umar said, “Yes, Indeed.” He said, “Umar wrote to say that no Jizya is to be taken from him.”

The Jizya does not cease by death if the person died after a year had elapsed as it would become Wajib and a debt upon him. Thus it is necessary to take the appropriate amount from his bequest like his other debts. If he doesn’t have any bequest then he doesn’t pay and it is not necessary for his heirs to pay, as this then falls into the rule pertaining to the poor and needy.

Any person from the Ahl az-Zimma who is obliged to pay the Jizya, can be excused from it because the Ayahs and Ahadith oblige its collection and not its exemption. No one is excused from it except those mentioned in the Ahadith. Even if the Zimmi joined the Islamic army as a soldier and fought against and killed the Kuffar along with the Muslims, or he was employed in a post, all this wouldn’t exempt him from paying the Jizya, as along as he remained on his Kufr and because he is paid for joining the army or the post.

A special register should be made for all the Ahl az-Zimma according to their religions and sects which is kept in the department of Jizya. It should contain all the necessary information regarding their date of birth, age, death and financial status in order to be the basis for estimating the amount of the Jizya.

The Amount of Jizya

The amount of Jizya enforced in the days of the Messenger (saw) and the Khulafa’a after him was not fixed, rather it differed from one place to another. When the Messenger of Allah (saw) sent Mu’az to Yemen he ordered him to take, “A Dinar or its equivalent of M’afir (garment) from every mature youth of the Ahl az-Zimma.” ‘Umar imposed 4 Dinars on the rich in Egypt and Ash-Sham, 2 Dinars on the middle class people and 1 Dinar on the poor who earns. Likewise he also imposed them to provide food for the soldiers and hospitality for the Muslims. He imposed 48 Dirhams on the rich in Iraq, 24 Dirhams on the middle class and 12 Dirhams on the poor who earn. Likewise, he imposed double the Zakat on Christians of bani Taghlub when they refused to impose Jizya on them. It has been narrated by N’uman bin Zara’a that he asked ‘Umar ibn Al-Khattab and spoke to him regarding he Christians of bani Taghlub. ‘Umar was intent on taking the Jizya from them but they had dispersed throughout the land. Nu’man said to ‘Umar, “O Amir al-Mu’mineen, indeed the Bany Taghlub are an Arab tribe who look down upon the Jizya, and they don’t have wealth, as they are only people of farming and cattle. They have defiance against the enemy so do not help your armies by using them against you.” He said, so ‘Umar made peace with them by imposing double charity (Zakat)”

In Sahih al-Buhkari it has been narrated by Abu Najeeh who said, “I said to Mujahid: ‘What is the matter with the people of Ash-Sham who pay 4 Dinars and the people of Yemen pay 1 Dinar?’ He said, ‘This was decided based on prosperity.’”

The value of the Dinars which ‘Umar imposed as Jizya on the people of adh-Zimma, estimated in grams, which is the standard unit of the gold today, is as follows:

	Dinar	Weight of Dinar in Grams	Dinar Grams in Gold
1. The rich	4	4.25	= 17 grams
2. The Middle class	2	4.25	= 8.50 grams
3. The Worker	1	4.25	= 4.25 grams

 

From this it is clear that the Jizya amount of was not the same, nor fixed by a certain limit that can’t be exceeded like the Nisab of Zakat. Rather it is left to the opinion and Ijtihad of the Khalifah where he takes into consideration the aspect of prosperity and poverty, in a way that he does not overburden Ahl az-Zimma, nor hrges them beyond their capabilities. Likewise he ensures that the Bait ul-Mal is not treated unjustly, nor he deprives it of fund rightly due to it from the people of Ahl az-Zimma.

Defining the levels of richness, middle class and poverty is referred to the common convention (Urf) and to the knowledge of experts. In this regard the Khalifah appoints people from the experts to distinguish between the rich, the middle class and the poor so as to put the levels of richness, middle class and poverty, and to suggest the value of Jizya for each category. Thus the Khalifah would use this as the premise to decide the amount of the Jizya in a way that he does not overburden the Ahl az-Zimma nor charges them beyond their capability, and does not deal unjustly with the Bait ul-Mal, by reducing its due right..

Time for the Collection of the Jizya

The Jizya is due on the passing of the year, and it is taken annually. The beginning of the year is defined by the start of Muharram and it is concluded by the end of Dhul-Hijja. In order to accomplish the collection before the arrival of Muharram of the following year, it is possible to specify the last three months of the year i.e. Shawwal, Dhul-Qi’ada and Dhul-Hijja as the appointed time for the payment of the Jizya. Thus, the year is fixed at the beginning and end for everyone, rather than making a special time of the year specific for each person. This arrangement achieves precision and ease in levying and collection Specific collectors will be chosen to collect and levy the Jizya and a certain section will be specified for them in the Department of Jizya in the Diwan (office) of Fai’ (war booty) and Kharaj. Their provisions and salaries will be from Bait ul-Mal and not from the people of the Zimmah. The collectors are prevented from taking anything more than the obliged amount from the people, and the increase in this is subject to punishment by law, because such an increase is injustice which is considered as darkness on The Day of Judgement. Also it is property stolen by the collectors and stolen property leads to the Hell-Fire. Similarly, the collectors are prevented from beating or torturing the people of Zimmah during the collection of Jizya as the Messenger (saw) prohibited this. Hisham b. ‘Urwa narrated from his father that ‘Umar b. al-Khattab passed in the road of Ash-Sham, while returning from his journey from Ash-Sham, by people who had been forced to stand in the sun with oil being poured onto their heads. He said: “What is the situation of these people?” They said: “They have not paid Jizya due on them. So they are tortured till they pay it.” ‘Umar said: “What do they say and what is their excuse is for not paying the Jizya?” They said: “They say, ‘We do not have it.’” He said: “Leave them and do not impose upon them what they cannot afford, for verily I heard the Messenger of Allah (saw) say: “Don’t torture the people, as the one who tortures them in this world will be punished by Allah (swt) on the Day of Judgement.” He (‘Umar) ordered that they be released. And it was related from the Messenger of Allah (saw) that he appointed Abdullah b. Arqam over the Jizya of the people of Zimmah and when he was leaving, he called him back and said: “Surely, whoever oppresses a person under covenant (Mu’ahid) or imposes upon him more than he can afford and humiliates him or takes anything from him without his consent I will challenge him (i.e the oppressor), on the Day of Judgement.” The one who claims poverty from the people of Zimmah, he will be requested to prove his poverty; if he proves it he is granted a respite until a time of ease. But if he does not prove it and it is proved that he is a procrastinator then he is imprisoned and left in prison until he pays the Jizya. The Messenger (saw) has imprisoned procrastinators of debts. There is no superimposition of Jizya. Even if two years or more passed without payment, they do not superimpose and it is obligatory to settle the amount as it is obligatory to settle the debt. The assets of the Zimmi are not sold to pay off the Jizya. Gold and silver are not specified for Jizya. It is allowed that Jizya be in gold or silver and it is allowed to be goods or animals, or it is allowed to take its equivalent value. It was mentioned in the Hadith when Mu’adh was sent to Yemen that the Messenger (saw) ordered him to take one Dinar from each mature person of the people of Zimmah or its equivalent in “Mu’afir” i.e. in garments. The Messenger (saw) also concluded a peace treaty with the people of Najran over two thousand garments of which they give half in Safar and the other half in Rajab. And ‘Umar used to take grazing livestock and grains for Jizya instead of Dinars and Dirhams as did the righteous Khulafa’a. In order to ease collection, preservation and distribution in these days it is allowed to collect the Jizya in the circulating currency. Expenditure of Jizya There was no difference among Muslims that Jizya is spent the same way as the funds of the Fai’ (war booty) i.e. the Kharaj and tenths, are spent. So, it is placed in Bait ul-Mal and funds are spent from it according to the interests of the Muslims and carried in the way of Allah (swt), as viewed by the Khalifah, according to his opinion and Ijtihad in looking after the affairs of the Muslims and in discharging of their interests.

Cognition of many of the Ahkam Shar’iah related to Al-Kharaj, Jizya, Zakat, Diyya, cutting and expiation requires the knowledge of the lengths, measures and weights which were used during the time of the Messenger (saw) and in the era of the honourable Sahabah (may Allah (swt) be pleased with them). As time prolonged away from the usage of these standards of lengths, measures and weights, the majority of them today, if not all of them, have become redundant. Thus, it has become difficult to know these measurements and their values corresponding to the lengths, measures and weights used today, which have become easier to deal with, easier to understand and able to precisely define.

Therefore, the standards of these lengths, measures and weights will be demonstrated to explain their reality and ratio to today’s lengths, measures and weights in order to make them clear, easy to deal with, simple to understand and precise in definition.

Length and Area

A Jareeb was the only basic unit of area. It was applied to measure arable land and define estate, where the Kharaj was estimated based on this basis. It is reported that Sh’abi said, “Indeed ‘Umar b. Al-Khattab surveyed the Sawad (arable land of Iraq) which reached 630,000,000 Jareeb.” In the book, al- Ahkaam al-Sultaniyya it is said, “The Jareeb is 10 Kasabaats times 10 Kasabaats. The Kafeez is 10 Kasabaats times a Kasabah. And the Kasabah is equal to 6 cubits. Hence the Jareeb is equal to 3600 cubit pieces and the Kafeez is equal to 330 cubits which is a tenth of a Jareeb.

Commenting on the parasang, it has been reported that Ja’afar bin Qudamah said that, “It is a cubit area and is equivalent to the Hashemite cubit, that is 9000 cubits.” Qalqashandi mentioned that, “The Hashemite cubit is equal to a cubit and a third of the hand which is the Mursala (long dispatched) cubit. And the cubit of the hand is equal to 6 handfuls (clasps)on the basis of the average handful. Each handful is the four fingers i.e. the smallest finger, ring finger, the middle and the index finger. Each finger is 6 little hairs laid across.

The Muslims used the following lengths:

The clasp = 4 fingers

The dispatched Mursala cubit = 6 clasps or 24 fingers

The Hashemite cubit = 8 clasps or 32 fingers

The Kasabah = 6 Hashemite cubits

The Jareeb = 100 Kasabaats squared (10 x 10)

The ten Kasabaats = 10 x 6 cubits

Length of the Kasabah = 60 cubits which is the length of the side of the Jareeb.

The area of Jareeb = 60 cubits length of side x 60 cubits = 3600 squared

Hashemite cubits.

Kafeez = 1/10 area of Jareeb, that is it is equal to 360 square Hashemite cubits.

It is possible to understand the reality of these measurements by comparing them to today’s measurement of metre, which is considered to be the easiest and most precise measurement for length and area, if we know the average width of the finger in centimetres.

To calculate, it is clear that the average width of the finger equals 1.925 centimetres and thereby the lengths of this measurement will be as follows:

The arm = 1.925 cms

The clasp = 4 fingers x 1.925 cms (width of the arm) = 7.700 cms

The Mursala cubit = 24 arms x 1.925 cms (width of the arm) = 46.200 cms

The Hashemite cubit = 32 arms x 1.925 cms (width of the arm) = 61.600 cms

Kasabah = 6 Hashemite cubits x 61.600 cms

(length of the Hashemite arm) = 3.696 metres

The ten Kasabaats = 10 x 3.696 metres length of Kasabah = 36.960 metres, the length of Jareeb

Area of Jareeb = 36.960 metres length of Jareeb x 36.960 metres = 1,366 square metres. This is equal to one and a third Dunum (ie. 1 1/3 x 1000sq.m = 1333sq.m).

Area of Kafeez = 1/10 Jareeb, that is 136. 600 sq. metres

This is everything related to the measurements of area. As for the measurements of length of distances, they are the Bareed, parasang and mile. They are evalurated in terms the Mursala cubit which is also called the original cubit, and the Shar’aa cubit whose length is 6 clasps, or 24 fingers, like it came in the measurements of area. The author of al-Ahkaam al-Sultaniyya mentioned that the mile is equal to 4000 Mursala cubits. The books of Fiqh agree that the parasang is equal to 3 miles and a Bareed is equal to 4 parasang. Therefore their estimation according to the previous measurements and the kilometre used today and which is considered to be the easiest and most precise form of measurement of the distance length, will be as follows:

The Mursala cubit = 6 clasps or 24 arms

Mile = 4000 Mursala cubits

Parasang = 3 miles

Bareed = 4 parasangs

In metres and kilometres calculation, they will be as follows:

The Mursala cubit = 24 arms x 1.925 cms (width of the arm) = 46.200 cms Mile = 4000 Mursala cubits x 46.200 cms, length of the Mursala cubit = 1848 metres or 1.848 kms

Parasang = 3 miles x 1848 metres length of a mile = 5544 metres, or 5.544 kms

Bareed = 4 parasang x 5544 metres length of parasang = 22176 metres, or 22.176 kms

In view of the fact that the distance of Al-Qasr is 16 parasang, or 48 miles, in kilometres it will be as follows:

Al-Qasr = 16 parasang x 5.544 kms, length of parasang = 88.704 kms or it is equal 48 miles x 1.848 kms, length of mile = 88.704 kms

Compliance of measurement of area and distance with the standards used in the past is not mandatory from the Shari’ah perspective. This is because they are means and tools which were adopted for carrying out and facilitating tasks. Thus it is permissible to use them or alternatives in following to the easiest, simplest and most precise form. This is though the Jareeb in origin is a Persian measurement and that acre was and still is the unit of measurement in Egypt. Its area is different from the area of the Jareeb.

Since the measurements of metre, kilometre and square metre which are used today are considered the easiest and most precise measurements, it is possible to use the Dunum as the unit for measuring the area of land, the metre as the unit to measure cloth and houses and the kilometre as the unit to measure distance. Thus the Jareeb which ‘Umar ibn Al -Khattab used as the foundation to measure area of Kharaj is equal to 1366 square metres, which is equal to one and one third of a Dunum approximately, because the area of Dunum is 1000 square metres.

Measure and Weight

It has been narrated that Abu Said al-Khudri said, “We used to give a Sa’a from food for Zakat ul-Fitr, or a Sa’a from barley, or a Sa’a from dates, or a Sa’a from cheese, or a Sa’a from the raisons.” It has been narrated from Jabir ibn Abdullah who said, “The Messenger of Allah (saw) would wash himself with a Sa’a and purify himself with Mudd.” And it has been narrated from Abu Saeed al-Khudri, without metioning the Prophet (saw) who said, “There is no Sadaqah in less then 5 Awsuq.”

Al-Wasq is 60 Makhtoom that is a Sa’a by evidence of what has been narrated from al-Hassan and Ibn Sirreen who both said, “Al-Wasq is 60 Sa’a.” Al-Sha’bi narrated that the Messenger of Allah (saw) said to Ka’ab ibn ‘Uzra, “Don’t you have something to slaughter?” He said, “No.” RasoolAllah (saw) said, “Then fast three days or give in charity 3 Sa’a of dates to 6 needy people, giving two of them one Sa’a.” And it has been narrated from Muhammad (saw) bin Ubaidullah al-Thaqafi who said, “‘Umar ibn Al- Khattab imposed on the people of the Sawad on each Jareeb inhabited or overflowing a Dirham and a Kafeez.” Abu ‘Ubaid says in the Book of Funds, “A Sa’a is 4 Amdaad, and the Mud is a pound and third in Baghdadi measurement, thus the a Sa’a is 5 pounds and a third, which is the Sa’a of the Prophet (saw) as Malik and the people of the Hijaz mention.”

Examining the Ahadith, what has been mentioned by the Jurists and Muhadditheen and the linguists about the measures and weights shows that a Sa’a is a unit of measurement for all measures which was used. A Sa’a is equal to 4 Amdaad and a Mudd is a pound and third in Baghdadi measurement and the Baghdadi pound is 128 4/7 Dirhams. The estimate of the Dirham in terms of the gram used today was 3.17 grams. This is not the cash Dirham. The weight of the Shar’i silver Dirham is 2.975 grams. Thus the weight of the Baghdadi pound is 408 grams.

Thereby the values of these measuresand their weights become clear in grams and kilograms from the substance of wheat in the following form:

Al-Mudd = 1 1/3 Pound Baghdadi

Al-Mudd = 1 1/3 Pound x 408 grams, the weight of the Pound = 544 grams, the weight of Mudd of wheat.

Sa’a = 4 Mudds in measure

Sa’a = 4 Mudds x 544 grams the weight of Mudd = 2176 grams the weight of Sa’a of wheat, or 2.176 kilograms the weight of Sa’a of wheat

Kafeez = 12 Sa’a in measure

Kafeez = 12 Sa’a x 2176 grams, the weight of Sa’a = 26112 grams, the weight of Kafeez of wheat or = 26.112 kilograms, the weight of Kafeez of wheat.

Al-Wasq = 60 Sa’a in measure

Al-Wasq of wheat is 60 Sa’a x 2176 grams the weight of Sa’a = 130560 grams, the weight of al-Wasq of wheat, or = 130.56 kilograms the weight al-Wasq of wheat.

From this, the following is clear:

In view of the fact that the Nisab of Zakat is 5 Awsuq its weight will be 652,8 kilograms of wheat since a Sa’a of dates, or cheese, or raisons is different in weight from the weight of a Sa’a of wheat though they are of the same measure. Therefore the weight of the Nisab of Zakat from dates, or raisons or cheese is different from the weight of the Nisab of wheat, because the materials are not equal in weight, though they have the same measure.

Since the Zakat of Ul-Fitr is a Sa’a then in weight it will be 2.176 kilogram of wheat. Similarly ritual redemption is 3 Sa’a, so its weight will be 6.528 kilogram of wheat.

Likwise it is clear that the weight of Kafeez, which ‘Umar ibn Al-Khattab put together with the Dirham as Kharaj on the Jareeb in the land of Iraq is equal to 26.112 kilograms of wheat.

The Dirham which was imposed was equal to the weight of the Mithqal that is 4.25 grams of silver. Since the area of Jareeb is equal 1.366 square metres, then it will be the amount ‘Umar ibn Al-Khattab put on the Dunum as Kharaj, which was 19.116 kilogram of wheat and 3.11 grams of silver.