Land subject to tax is divided into two categories:
1. ‘ushriyyah land (tithe land): land owned by people who accepted Islam willingly or who were conquered by force and had their land divided among the conquerors, or land revived and cultivated by Muslims; and
2. kharajiyyah land (taxable land), land conquered by force and left to its original owners on the condition that they pay the required land tax.
Just as zakah is payable on ‘ushriyyah, so it is paid on kharajiyyah when the inhabitants of the latter accept Islam or when a Muslim buys it. In that case, both the tithe and the kharaj become due, and neither of them will negate the application of the other.
Ibn al-Munzhir witnesses: “This is the view of most of the scholars, including ‘Umar ibn ‘Abdulaziz, Rabi’ah, az-Zuhri, Yahya al-Ansari, Malik, al-Awzai, ath-Thauri, al-Hasan ibn Salih, Ibn Abu Layla, al-Layth, Ibn al-Mubarak, Ahmad, Ishaq, Abu ‘Ubaid, and Dawud.” Their opinion is derived from the Qur’an, the sunnah, and the exercise of their intellect – that is, by means of analogical reasoning or qiyas.
The Qur’anic verse referred to is: “O you who believe! Spend of the good things which you have earned and of that which We produce from the earth for you” [al-Baqarah 267]. Sharing the produce of ones land with the poor is obligatory, whether the land is kharajiyyah or ‘ushriyyah. The sunnah referred to is: “From what the heavens water, a tithe [is due].” This hadith encompasses in its general meaning both the kharaj and the ‘ushriyyah land.
As to the analogical reasoning (qiyas), both zakah and kharaj are a kind of obligations (hagq), each based on a different reason, and one does not nullify the other. It is similar to the case when a person who is in the state of ihram kills privately owned game (for eating). Since the tithe is payable by the force of the text, it cannot be negated by kharaj, which becomes payable by the force of ijtihad. Abu Hanifah holds that there is no tithe on kharaj land. Kharaj, he says, is due only when the land is conquered, (whereas) one of the conditions governing the obligatory nature of the tithe is that the land should not be kharajiyyah.: The Validity of Abu Hanifah’s View
Imam Abu Hanifah provides the following evidence for his view: According to Ibn Mas’ud, the Prophet, upon whom be peace, said: “Neither kharaj nor tithe [‘ushr] are payable simultaneously on the land of a Muslim.”
The preceding hadith is by consensus held to be weak (da’if). Yahya ibn ‘Anbasah reported it on the authority of Abu Hanifah from Hammad from Ibrahim an-Nakha’i from ‘Alqamah, from Ibn Mas’ud from the Prophet, upon whom be peace.
Al-Baihaqi probes its chain and saysÂ in al-Ma’rifah as-Sunan wa al-Athar: “The preceding hadith is narrated by Abu Hanifah from Hammad from Ibrahim on his own authority. Thus, Yahya reported in suspended (marfu’) form.” Yahya ibn ‘Anbasah is well-known for interpolating unauthentic sayings and attributing them to established authorities. This was related by Abu Ahmad ibn ‘Adiyy al-Hafiz as we were informed by Abu Sa’id al-Malini about him.”
Likewise, al-Kamal Ibn al-Humam, a leading Hanafiyyah, considers the hadith weak.
Ahmad, Muslirn, and Abu Dawud relate from Abu Hurairah that the Prophet, upon whom be peace, said: “Iraq would refrain from paying its qafiz’ and dirham, Syria its mudd and dinar, and Egypt its ardab and dinar. Thus, you would come back from where you had started.” He said this three times. Abu Hurairah heard this in person.
This hadith does not provide evidence to the effect that zakah should not be taken from kharaj land. The scholars interpret it to mean that the conversion of these countries to Islam would eliminate land tax. It may also have alluded to dissensions which could prevail at the end of time and which would lead to neglecting or fulfilling the obligation of zakah, jizyah and other such dues by them.
An-Nawawi says: “If this hadith means what they [the Hanafiyyah] claim, then it means that zakah could not be enjoined on dirhams, dinars, and merchandise. If this is so, then nobody subscribes to it.”
It was reported that when the dahqan (grandee) of Bahr al-Mulk embraced Islam, ‘Umar ibn al-Khattab said: “Give him the land and collect the land tax from him.” This is a clear statement on the matter of taking kharaj without demanding payment of the tithe.
This incident indicates that kharaj is not cancelled for any person after he embraces Islam, nor does it lead to the cancellation of tithe. He mentioned kharaj here as a way of stating that it will not be cancelled by embracing Islam, like jizyah. As for the tithe, it is well known that it is binding on a free Muslim, so there is no need to mention it. He also did not mention the levy of zakah on cattle. This holds for the payment of zakah on silver and gold and other valuables. Perhaps the dahqan (grandee) did not possess anything which required the levy of a tithe on it.
It is said that the practice of the rulers and imams was not to combine the ‘ushr and kharaj. Ibn al-Munzhir disapproves of such a practice because ‘Umar ibn ‘Abdulaziz did combine the two.
It is also said that kharaj is the opposite of ‘ushr. This means that kharaj is a consequence of conquest, whereas ‘ushr is an act of worship. Therefore, the two cannot be combined (at one time) and obtained simultaneously from the same person. This held true in the beginning (when lands were conquered), but it is not tenable in the long run. Nevertheless, not all forms of kharaj are based on force and conquest since some of its forms are instituted without force as, for example, in the case of lands adjoining a kharaj land or in the case of acquired and revived land watered with streams.
It is also said that the reason behind the imposition of kharaj and ‘ushr is one – that is, an actually or potentially yielding land. This can be explained by recalling that if it is marsh land of no benefit (sabkhah), there is no kharaj or ‘ushr on it. That is, one cause cannot demand two dues of the same kind. This is similar to the case of an individual who for a year possesses free-grazing camels (sa’imah) intended for sale, for such a person is not required to pay two kinds of zakah – that is, one for possession and one for trade.
This is not the case because the ‘ushr (tithe) is payable on the land’s produce and the kharaj on the land itself, regardless of whether it is planted or not. As to the admissibility of the unity of cause, alKamal ibn al-Humam explains there is nothing to prevent two obligations from being connected to one cause, such as land.
Most scholars are of the opinion that anyone who rents a piece of land and cultivates it must pay the zakah, not the true owner of that land. To this Abu Hanifah replies: “Zakah is due on the land owner.” Ibn Rushd holds: “Their difference lies in whether the ‘ushr is payable on the land itself or its produce.” Obviously, zakah, as their views suggest, is payable on either of them. The difference is only of priority, considering that both the produce and the land belong to the same owner. Most scholars say that zakah is due on seeds (habb). Abu Hanifah holds that the essence of obligation rests with the land. Ibn Qudamah inclines toward the majority’s view and says: “The obligation lies on the produce and is payable by its owner, as in the case of zakah on the value [of a property] intended for trade. Also, it is similar to the tithe payable on the produce of the land owned.” Their (the Hanafiyyah) view is not authentic, for if zakah were to be levied on the value of the land, then it would have been obligatory even if the land was not cultivated, as is the case with the land tax, and even nonMuslirns would not be excluded from its application. Be that the case, kharaj would have to be estimated on the land itself, not on the value of produce – that is, it would be considered part of the expenditure of fay’, not the expenditure of zakah.