property - but not against exploitation through tax and rent’ (p. 4). Legal Ordinances developed under the
early Hanafite law were equally applicable to all forms of landed property. ‘It is only after the tenth century
that new conceptions of tax and rent were developed that clearly differentiated between peasant holdings on
the one hand and the landed property of the wealthy and powerful class of rentiers on the other hand’ (p. 4).
Johansen thinks that in order to protect the economic interest of this class of rentiers, new forms of law were
developed and that of the ‘old jurist’ (al-mutaqaddimun) was dismissed in favour of the ‘choice of the
modern jurists’ (ikhtiyar al-muta’akh-khirin) (ibid).
1. Lands subject to kharaj.
In principle ‘all lands that are conquered by force (‘anwah) and not divided among the victorious
army but left to the original owners are subject to imposition of kharaj. Exception is provided in the case of
Makkah. According to the Malikites (al-Khurashi, vol. 3, p. 129) lands conquered by force of arms by that
very fact become waqf but are nevertheless left in the hands of their former owners in order that they may
better be able to pay the jizyah. These lands are subject to kharaj, which in reality is a rental, and being waqf
lands, they may revert to the state, upon the death of their holders.
The Shafi’ite view is that the ownership lands conquered by force returns to all Muslims. These
lands become immobilized (waqf) in the general interest of Muslims and are subject to kharaj which is really
a rental collected from them perpetually (al-Shafi’i, n.d., Vol. IV, pp. 103-193).
The most clear report of Hanbalites is that the ruler is left to do whatever better he thinks in the
interest of Muslims - to distribute or to retain in the hands of their previous owners at a rental in the form of
permanent kharaj. The land will be ushri-kharaji land (Ibn al-Qayyim, n.d., 2: 173).
The Hanafites' stand is that the ruler is authorized to distribute the land among the fighters or retain
them (the previous infidel land owners) and impose jizyah on their heads and kharaj on the lands (al-
Sarakhsi, 1978, 10: 15, 37; Ibn al-Humam, 1316 AH, 4: 303). There had been divergence of legal opinions
on the question of the status of such lands subjected to kharaj payment. The same is also stated in the
Hanafite School. But a survey of works on Hanafite jurisprudence would show that kharaj payment on a land
refers to ownership right to such a land (Johansen, 1988, pp. 8-11). The most prominent Hanafite scholar of
Ottoman period Ibn Nujaym writes ‘The Hanafite imams are unanimous that when the leader conquers a
country and retains its people on it and imposes kharaj on their lands, in this case the inhabitants enjoy
property right over those lands. All forms by which they dispose of them such as sale, gift, bequest, leasing,
lending, transformation into endowment are valid, regardless of whether the disposing person remains an
infidel or embraces Islam (Ibn Nujaym 1980, pp. 52-53). However, lands granted as iqta’ do not represent
ownership. Similar is the case of ard al-hawz (the sequestrated land). Ard al-hawz refers to the land that is
taken over by the ruler either because the kharaj paying owner of the land has fled away from the village,
from paying taxes, from his inability to cultivate the land or he is dead without legal heirs. Thus the imam
(ruler) will take care of the cultivation of ard al-hawz by an arrangement of share-cropping, tenancy or wage-
earning cultivators. In all four cases of ard al-hawz, the former proprietors retain property rights except the
last case when no survivor is left. In this case state takes the full ownership of the land (ibid. p. 53).
The basic legal principle that governs the Hanafite position on taxation is summarized in the
following sentence ascribed to Abu Hanifah: “In contrast to all other commodities the productive lands in our
territory are never exempted from taxation. This taxation consists either of kharaj or of ‘ushr” (al-Sarakhsi
(1978), Vol. 3. p. 6, quoted by Johansen, 1988, p. 7).
Developments of Hanafite rule and reasoning on agrarian relations are best summerized by Johansen
(1988, pp. 122-124) in his work “the Islamic law and land Tax and Rent”. The knowledge of those
developments will be helpful to understand Ibn Nujaym’s idea who took stock of problems connected with
the changes in land tenure, tax and rent in the middle of 10th/16th century. Here is the gist: During the
formation period of Hanafite system of legal reasoning the payment of land taxes was considered ‘as a proof
of proprietary rights with regards to arable lands’. Later on, to facilitate the land owners’ appropriation of
rent from their tenants, Hanafite jurists developed the idea that through contract of tenancy or share-cropping
the productive use of land is transformed into a commodity. This commodity may be rented out through a
contract - something that differentiates between tax and rent. The payment of the land tax became a privilege
that proved the rentier classe’s proprietary rights to their lands and guaranteed their right to collect rent from