Landlord and Peasant in Early Islam - Ziaul Haque

LANDLORD AND PEASANT IN

EARLY ISLAM

A Study of the Legal Doctrine of Muzara`a or Sharecropping

ZIAUL HAQUE

IDARAH-I ADABIYAT-I DELLI 2009 QASIMJAN ST

DELHI (INDIA)

I

t MD RELIGIO-PHILOSOPHY(REPRINT) SERIES NO. .43

TABLE OF CONTENTS

Chapter Pages

PREFACE

(v)

I. TWO VERSIONS OF THE MULTRA'A-gADITHs

The Problem Stated 1

The Theory of Primitive Tenures 10

The Concept of Gharar 12

Ilifukiqala and Mukhabara-tenancies 14

Evidence of Isnad for the First Version 28

Notes 41

Reprint

1985 Price

Its. 125

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PUBLISHED BY MOHAMMAD AHMAD FOR IDARAH-I ADBIYAT-I DELLI, 2009. QASIMIAN ST„ DELHI-6 AND PRINTED AT JAYYED PRESS, BALLIMARAN, DELHI-6.

II. ANALYSIS AND CRITIQUE Cif: PRO-

MUZAR,44 A-HADITHS 51

The Problem of Khaybar 51

Ab6 Hann : Earliest Extant Statement 68

Interpretation of Abd Ydsuf 75

Interpretation of al-Shafici 79

lbn Ijazm and his Theory of Repeal 80

Evidence of Muzeira'a-kladiths 87

Conclusion 105

Notes \ 107

III. THE CONCEPT OF FAY' : ORIGIN AND DEVELOPMENT 117

Sisrat al-Ffashr and the Theory of Fay° 118

•

( iii )

Qata'i' under the Prophet and the Early .Caliphs

Mawardi's Classification of ler •

Theorj, of Saghar and the Principle of Rukhsa j

Notes 271

IV. JURISTIC INTERPRETATION OF KHARA4J AS LEASE' OF LAND 285

Kharaj, Ujra and Rent 285

Qabala and State-Muzara'a 288

Abu Yusuf on Muqasama and Qabala 295

Notes 303

V. DEVELOPMENT OF THE SUBSTANTIVE

LAW OF MUZAR21`,4 310

General Role of the Fuqaha' 310

Concept of Bay' or Sale 313

Malik's Theories of Musaqat and Money- rent 314

Idealistic Formulation of Abu Hanifa 323

Analytical Method of Abu Ydsuf ,325

Al-Shafici's Exposition of Musaqat and Money-rent '330

Al-Shafiq on Private and State:/ara 335.

Further Development of the Classical Theory of Muzarcra 336

Ahmad ibn Hanbal

Ibn Hazm's Theories of Muzeira'a and Mugharasa

(ii)

Tabari's Exposition of Fay'

125

Land policy under the Prophet in General 133

The Khassa Lands 134

Notes 144

IV. BYZANTINE AND SASANI AN AGRARIAN REGIMES 151

Large Private Estates 153 Cc loni 157

Colonate in the Byzantine Law 158

Rents and Leases 164

The Emphyteutic Leases 166

Land Tenure under the Sasanians 167

Rents 169

Notes 172

V. THEORY OF FAY' IN THE EARLY CALIPHATE 181

Economic Policy of Abu Bakr 181

Millar I and the Theory of Fay' 187

Concepts of Sulk and `Anwa-land 194

Inalienability of Fay'-lands 216

Notes 219

VI. FURTHER DEVELOPMENTS 231

The Crisis under lUthman 231

Private Landed Estates 245

I-Emc7 245

al-Mawat 248

The Problem of Igta' 254

257

264

267

336

337

IX.

( iv )

Socio-Economic Approach of Ibn Taymiyya Notes

CONCLUSIONS

GLOSSARY

BIBLIOGRAPHY

INDEX

343

347

355

362

373

389

PREFACE

The main object of this study is to analyse and explain the problem of muzara'a (sharecropping, metayage) in particular and the theory of land tenure in general in the history of early Islam. This is neither an evaluation nor a judgment of the relationship between landlord and tenant or of the conditions of the peasantry, nor yet is it an analysis of the economic doctrine of Islam. At the same time it is not an economic history of the institution of matayage in the sense in which economic historians understand it. Rather, this introductory work endeavours to raise some general problems and questions about the formation of Islamic land laws in the formative period of Islam within the broader theoretical framework of Islamic jurisprudence, the science of Fiqh. The concepts, theories and hypotheses which are formulated here, the answers and solutions which are sought, and the conclusions 'reached are theoretical in nature.

These solutions to the complex problem of mudtra'a and the related issues are evidently incomplete because of the paucity of documentary evidence, and because what evidence is available is too sketchy to allow conclusive inferences. The incomplete and abstract nature of the hypotheses is an acknowledgement' of the fact that our knowledge of the economic and legal history of muzebyea is uncertain and prone to guesses and conjectures. This fact, it is hoped, will invite others to criticise, challenge, disprove or improve upon the hypotheses ventured here so that a discussion may ensue, a dialectic may follow and our knowledge of the subject may progressively grow.

The present work is thus a preliminary study of the 'juridi-cal concept of land tenure in Islam. The significance of land

( vi )

laws and the role of the ,peasantry in the development and progress of Islamic culture and civilization so far have not been fully explored by the Islamicists, In the early period of Islam, as the following pages, among oilier things, will show, the mass of humble peasantry greatly contributed to the growth, stability and strength of the Ununa, the Muslim Community: -It pro-vided the..infra-structure —the very basis of the social system—in the form of rents and revenues. The early history of Islam is replete with anecdotes and political events which speak of the falltilyin ' (cultivators), muzari'dm (tenants, sharecroppers), akkarun (labourers, tillers), and the 'Wall (serf-tenants) in an incidental manner, and with a secondary importance. It does not shed .much light, however, on the social conditions and problems of the peasantry, nor does it explain the socio-legal nexus which bound landlord, li t mit and the Islamic state toge-ther. We- are well aware of he products, crops, rents and revenues which the farmers paid to the state—but little or nothing is known about the real producers

This peasantry formed the major part of the population. The peaSants and farmers, tenants and serfs, whom we shall meet in these pages, were more or less perpetually bound to the soil they tilled, from generation to generation. These tenants and sharecroppers were relegated to an insignificant social position ; they were long 'treated as ,mere adjuncts of land—long-suffering, slow and hide-bound. Their existence was considered inessential, incidental and peripheral to the major events of history. In the theoretical . system of Islamig land laws these tenants and sharecroppers significantly find their proper place : their rights and obligations are redefined within the framework of a system of legal contract, and their labour is made as sacred and inviolable as the land.of a landowner.

An attempt has been mace in this study to utilise the material of /faith literatUre in addition to the other original literary sources. The data of muthra`a-Hadiths reflect to a certain extent the contemporary socio-economic situation of the

( vii )

Hijaz. The element of spuriousness in this source must, not be exaggerated. If handled with care, this material can furnish a wealth of evidence for the early period. The Fiqh or legal literature on the laws of land has been used in particular with the general assumption that jurists' sioeculation and interpreta-tion of the factual situation, and their subsequent elaboration into uniform generalized land laws are relevant to our problem. This approach to the problem has yielded adequate results..

This work was undertaken undef the impression that there exists a genuine' need of such a study on the subject of Islamic land laws as developed by the Muslim jurists. This writer believes that this change of perspective has given a 'reasonably better understanding of the role of the Fuqaher (singular faqth, jurist). After all, the Fuqahrt' did nOt elaborate their theories in utter detachment from the real world. To give one example Qadi Abu Visa, the chief judge of Hariin al-Rashid was directly involved in the affairs of the state he acted as a sort of legal advisor to the ruler. Alm) Yusuf's theory of muzara`a, therefore, has a tinge of pragmatism. The Fulaha' in fact reflect the moral-social conscience of the Ultima ; they symbolize the mind and spirit (Geist), the aspirations, and ideals of this Community of the Believers.

This study originally formed a doctoral dissertation sub-mitted to the Faculty of the Division of the Humanities (Department of Near Eastern Languages and Civilizations) University of Chicago, in March 1975. This book is a slightly revised version of the thesis.

I owe a great debt of gratitude to my teachers and friends at the University. of Chicago. I wish to express my profound thanks to my esteemed teachers, Dr. Fazlur Ralman, Dr. Wilferd F. Madelung of the Department of Near Eastern Languages and Civilizations, and Dr. Gale Johnson, Chairman of the Department of Economics, who took deep interest in this work. Whatever mistakes, implausible ideas, hypotheses and unanswered questions may still be found are attributable to my

( vitt )

own understanning of the problems. Many thanks are due to Dr. Walter E. Kaegi, Professor of Byzantine history, who intro-duced me to a fascinating area of research. The study of the pre-Islamic agrarian background of the Byzantine Empire helped me to understand the subsequent Islamic developments in a better way. I must also thank Dr. Jaroslav Stetkevych, Dr. Heshmat Mu'ayyad, Dr. Leonard Binder, Dr. Carolyn Killean, Fasihuddin Ahmad, Bekir Demirkol, Donna Lee Bowen, Camille Griffith, Salman Nadwi, Sahli 'Omar, Galal al-Nahal, Rajan Sundaram and many others who consistently encouraged me ; also Elizabeth Norall and Linda Moore for their help in editing parts of the manuscript.

For the generous financial grants for my living expenses in the University of Chicago while I was working on the thesis, I must thank the members of the Fellowship Committee of the Centre for Middle Eastern Studies of the University of Chicago. My graduate study at the University of Chicago (September 1970 to March 1975) was made possible by fellowships I received from the University for which I wish to express my thanks to all concerned.

I am grateful to my wife and children who with perfect understanding of the nature of my work gave me leave of absence and full freedom to concentrate.

The Institute of Islamic Research, Islamabad (Pakistan) also deserves my thanks for the cooperation and help it rendered to me in this regard. My thanks are also due to my colleague Dr. Ziauddin Ahmad who read the entire manuscript and suggested improvements.

A NOTE ON TRANSLITERATION

There is no commonly accepted system of transliterating Arabic, Persian, Turkish or Urdu languages into European alphabet. In the following pages the transcription system used in the American Universities has been adopted. No uniformity is however possible. We have used the following characters :

Arabic Letter Name and Transcription

i f : a, ', carrier of the initial vowel.

bet : b

C..s t

tha': , th

jim : j

7.0 : h

C

Ichk: kh

dill : d

dhal: dh

ra : r

zay : z

sin :

UI

shin : 51'

sad : s

dad :

ZIAUL HAQUE

CHAPTER

TWO VERSIONS OF THE MUZARA'A-1:1ADITHS

The Problem Stated

The Islamic Law, Fiqh, in its wider sense, theoretically concerns all aspects of religious, social and economic life. Besides religious observances, libadat (singular, `ibada, worship), this ethico-legal system' seeks to regulate the institutions of family, marriage, inheritance, property relations, economic contracts and obligations—that is, the over-all socio-economic relatiOns, called mulamalat (singular, mu'amala, transaction). This ethico-legal system can be understood properly in the light of its objective" function in relating and integrating various social, ethical, legal and economic concepts, ideas, and roles, including the' relationship of man to land and the relationship of natural resources and society in general. The nature of this important complex of problems is fully expressed by the substantive Islamic laws of land tenure, which were among the first to develop in the total conceptual framework of Islamic legal theory.

The problem of land tenure in its ethico-legal and historical manifestations has been discussed copiously in the early literary sources. This reflects the importance of this problem in the early history of Islam. The Umma (Muslim Community) began as a religious community and evolved as a complex politico-economic organization, which, in the process–of its development, came to include various heterogeneous elements of different systems of tenure. With the growth of the Umma, the principles and laws of tenure also evolved gradually and spontaneously. These laws, which represent and embody the relations, rights and duties of tenants, landlords and the Islamic state, form part of the general law of obligations—the core of Islamic legal theory.

( x)

Arabic Letter Name and Transcription

- la' : t

1;

-

za'

- `ayn:

L ghnyn : g h

- fa' : f

- qaf

S

-

kaf : k

- lam : 1

r mim : m

- thin :

- ha' : h

- waw w, v, ou.

cc : d•

2 Landlord and Peasant in Early Islam

The question of whether agricultural land can be leased against a specified rent and recompense, or against a certain part of the produce of land, or against a fixed sum of money ; and, by implication, the question of whether this land is individually or collectively owned, are some of the fundamental questions which have occupied an important position in the

Hadith and Figh literature since very early times. Jurists of

all schools of legal thought have addressed themselves to the problem of land tenure which was closely related to and in

fact formed a significant part of the social institutions of

Islam in its formative period.

To the knowledge of this writer there is no comprehensive and critical modern study of the—problem of muzdri'a

(mitayage, or sharecropping) and the related issues which deals

with the doctrinal aspects of the problem. Carl H. Becker, E. Prbbster, Frede Lokkegaard, Daniel C. Dennett, Ann K. S. Lambton, and Werner Schmucker,l—all discuss the problem

of muzarda in a perfunctory manner as the subject in its legal and theoretical asjiects lies at the periphery of their main discussions. All these writers more or less underestimate

the role of the Muslim jurists in influencing Islamic laws

of land. The main purpose of this study is to investigate, both in

its theoretical and historical aspects, the origin and develop-

ment of the classical theory; of muzarda, and its elaboration

and interpretation by the jurists within the general context of the classical theory of Islamic Jurisprudence. This will be a general treatment of the problem in its developmental process during the first two centuries of Islam ; that is, until

the time of Muhammad ibn Idris al-Shafiri (d. 204/819-820). However, the theories of later jurists like Abmad ibn Hanbal (d. 241/855-6), Ibn Hazm (d. 456/1063-4) and Ibn Taymiyya (d. 74/1327-8) will also be discussed in detail in order to delineate and trace the development of the legal doctrine of

muzarda.

We shall not, however, limit ourselves to any particular region, for, this would require an extensive and detailed

Two Versions of the Muzarda-Hadiths 3

hitorsica -treatment beyond the scope of this study. In the course of tracing' the growth of the legal doctrine, appropriate references will made to the lands which came to form the Islamic Empire. We will enquire into the problem of its origin; whether it had its antecedents in the pre-Islamic system of land tenure of Arabia or in the autochthonous tribal land

practices ; or whether it originated in the Byzantine and

Saanian agrarian laws and institutions. We shall try to estab-lish which elements of these various systems were subsequently rejected by the economic ethics of Islam, which concepts were neutralized, and (which were integrated and assimilated into the emerging Islamic legal system. We shall pose and answer the question as to the probability that pre-Islamic institutions

of 'Wring and leasing arable lands, as well as earlier Byzantine and S'asanian agrarian concepts, continued under Islam, albeit in a radically modified form.

To approach this matter with the preconception that it has an exclusive Islamic development, and that this develop-ment rules out the possibility of other foreign or external influences, cannot solve the problem. If it is taken for granted at the outset that the emerging tenancy situation which arose in the natural course of socio-economic change subsequent to the Islamic conquests represents a unified structure, a coherent whole, a Zusammenhang, it will confuse the issue, for the elements, concepts and data of pre-Islamic custolnary tenancies them-selves were diverse which formed the raw material from which the Fugalill deduced the laws of metayage. In this sense, the Islamic laws of tenure, as we shall later substantiate, tend

to be modes of systematizing and rationalizing the juristic-- aspirations of the formative period. The elaborate theoretical formulations of the Fugaha' are, insofar as they represent their particular interpretations, conditioned by the actual

agrarian situation and the application, of the Shari'a-principle.

These land laws were one of the highest achievements of the

Fugaha', the result of their creative idealism.

In the first and second chapters a critical analysis of two

Two Versions of the Muzara'a-Hadiths 5

concepts of fay', kharaj (land-tax) and muzdra'a were further developed with a view to strengthening the Umayyad and Àbbasid autocratic regimes.

In. the seventh chapter we shall discuss the jurists' inter-pretation of khardj as / rent or lease of land, and shall underline its bearing on the theory of muthra'a. The eighth chapter will develop the classical theory of muzara'a as propounded by Aba Hanifa, Malik ibn Anas, Abu Yasuf, al-Shafi'i, Ibn Hanbal, Ibn Hazm and Ibn Taymiyya in their respective systems of law. Their main lines of reasoning and their

schemes of jurisprudential economics in relation to land laws will be examined in detail. Malik's system of analogical deduction and his concept of rfartira (reasonable social necessity) will be examined in the context of his theories of fruit mitayage and money-rents. The interpretations of the theory of muzara'a: as propounded by Abet Hanifa, Abu Yasuf, Muhammad ibn al-Hasan al-Shaybani, will be dealt within details. We shall see how and why the Fttqatur developed their general legal principle of, the freedom of contract in respect to the law of tenure. We shall recapitulate our whole discussion in the last chapter.

The problem has been discussed in almost all the compen-diums of Hadtth and Fiqh in separate and independent chap-ters generally entitled kitab al-mtatiraà. A great deal of confusion and many inaccurate generalizations have crept into

the formulations of this theory in the works of later Fuqand' and traditionists. As Muhammad ibn al-Shawkani (d. 1250/1834) tells us, the complexity of this problem has led many to utter confusion in transmitting reports from other

schools appertaining to this matter. This becomes more con-

founded when some of the scholars relate from the same jurist

two. versions of the problem which contradict each other.2 A modern traditionist, Ahmad Muhammad Shakir (d. 1378/ 1958-9), in his famous edition of the Musnad of Ahmad ibn Hanbal, while commenting on a Flattish of 'Abd Allah ibn Ùniar, which suggests that Ibn 'Uniar had revoked his practice of land-lease, observes :


divergent treatments of the" issue of tenancy put forward by

the Fugalar will be given, and in order to explain the history of the doctrine we shall examine the relevant traditions and

their isndds (the authoritative chains of transmitters). We

shall also make an effort to find out which of the two versions might be original, relatively earlier and primitive ; and which

might be attributed to later developments. As our point of

departure we shall investigate the nature and significance of

the theory of primitive land tenure which has consistently been sustained by the jurists in their formulations.

Another complex problem is the famous Contract

(Mu'amala) of Khaybar which took place between the Muslims

and the cultivators of Khaybar in 7/628-9. This deal lies

at/the core of the theory of muzaraca. Its doctrinal and histori-

cal significance will be studied in detail and its conceptual

relationship with the classical theory of murtira'a will be

defined and developed before embarking on our main problem.

The third chapter will deal with the origin and develop-

ment of the concept of fay'—the conquered agricultural lands—

and the policy of the Prophet relating to them. This conc0t, in its various aspects, will be studied with regard to the

formulations of the jiarists.

The fourth chapter will describe in detail the Byzantine

and Sasanian theories and practices of land tenure and the

consequences of Islamic/ conquests, which, once and for all,

changed and modified their form and basic character. The fifth

chapter will treat of the extent of this change and their

transformation. The further development of the theory of

fay' and land policies in the early Caliphate will be delineated.

In this regard we shall in particular see how the whole trend of thought under the Umayyad and the 'Abbasid regimes tended

to be deeply influenced by the justification of a theory of

fiscal administration, or a practical and pressing need of the

political system which was more or less based on the rents

and revenues derived from the peasantry. Therefore, in the Sixth chapter, we shall investigate how the theory of mitayage

became the legal framework of economic regimes, and how the


The problem of lease of land is a complex and intricate one with grave economic and social implications concerning the landed estates which made the landlords great masters of opulence. This tended to transforin them into avaricious and rapacious persons, rather parasitic on the life blood

of the peasants and sharecroppers. They reduced these tillers of the soil to a status much lower than that of an animal. Probably, because of these serious matters, Ibn Hazrn, the Andalusian jurist, interpreted the Prohibition-

Hadith in a literal sense and pronounced his conclusion

that lease of land (kira' al-ard) against anything at all

was absolutely null and void. He did not therefore allow any lease of land against money, in kind or anything else.;

Shakir sees a great need for a comprehensive study of this problem which must examine all the evidence, investigate

isnads of the 4Iadiths, account for their 'nal (singular 'ilia, i.e.,

authoritative reason or ratio legis) and find more probable and

correct Hadiths in terms of their isnads, according to external

criteria and internal evidence.4

It seems that theories of the later Fuqahr, based on prodi-gious assumptions, really shifted their reasoning from one plane to another both in time sequence and in conception, being unable to relate different concepts in a coherent manner. Their formidable but unrealistic categories of tenure, unlike the earlier Fugalat, leave much to the imagination and little to genuine perception. For instance, the abstract forms and categories of tenure recorded by the traditionist Abu Bakr al-Bayhaqi (d. 458/ 1065-6) under different headings will baffle the student who wants to make any sense out of them, for these categories bereft of time and life stand like fossilized objects.3 Without relating all this mass of material to actual conditions from which it emanated and without understanding its connection with similar-

ly related concepts, no progress can be made towards compre-hending the real import and the deeper significance of these land

tenures. Before we begin our discussion and analysis of the relevant Ijadiths in this regard, some preliminary remarks about

the nature and significance of isnad seem pertinent.

Two Versions of the Muzaraà-pladiths 7

Hadith—literally a narrative or talk—is technically in form and content a transmitted narration of what the Prophet said, did, approved or disapproved (and sometimes of Companions or Successors).6 /mad is the chain of authorities, an essential and integral part of the Tradition. The text (matn) is the text-ual part of the Hadith which concerns sayings, actions or deeds of the Prophet or the Companions regarding a -matter. It has been established that at first Hadith existed without the sup-porting isnad, which seems to have appeared towards the end of first/seventh century.? Joseph Schacht is skeptical of isnad evidence and considers it uncertain and doubtful-for the purpose of historical analysis, for he thinks that the isnads were forged and projected back to earlier times. He considers in particular the family isnads as spurious. These are chains of narrators which contain members of one family who report the traditions, for example, from father to son or from master to freedman, as the isnad bearing NafiLIbn Ùmar-`11mar. About the widely accepted family isnad of Malik-NM-Ibn Ùmar, Schacht thinks that it is fabricated too because these isnads are later than the established Mediriese doctrine and were invented in the second century for "obvious" reasons.8

These extreme suspicions of Schacht do not seem justifiable and in particular his observations on the family 'sad of Nafi` or Salim-Ibn 'Omar are not warranted by historical facts. If we follow Schacht's postulate wei will deprive ourselves of a valuable historical source for studying social and economic problems of an early period. The recent researches of Nabia Abbott have adequately demonstrated that the family isnads emerged earlier and "persisted on a much larger scale than has been recognized by the modern scholars". In her studies of early Hadith, based on the early literary and papyri sources, she comes to the conclusion that a number of family isnads that traced back to prominent Companions, such as Anas ibn Malik, Zayd ibn Thabit, Ibn 'Omar, Àbd Allah ibn •Amr ibn Ibn 'Abbas and ‘1.5rwa ibn al-Zubayr, very early became highly respected and remained so throughput history. She adds that written transmission of Hadith in general


cannot be dissociated from the large number of traditions which came through these families ; from the start all the above-mentioned Companions had advocated writing of Hadith,

except Zayd and Ibn `Umar, even these two lived to witness

the recording of Traditions. The flibi'an (followers, successors)

were very zealous in recording them. She also thinks that family ictuids starting with other Companions were actually

numerous.9 As far as tmar ibn 'Abd al-'Aziz's (reigned 99-101/

717-720) decrees to Abu Bakr ibn 'Amr ibn Hazm and Ibn

Shihab al-Zuhri for writing down the !Pak and Sunna (the

normative practice of the Prophet, Companions and, the Successors) are Concerned, she says that these were among the many sent out to those who were able to help recover the

basic documents on Zakat (poor-tax), diya (blood money),

Fara'id (practices concerning shares of inheritance) and the

Sunna, which were needed for, administrative purposes, and which were in their life times in the possession of the Prophet's' close Companions, like Abu Bakr, tmar ibn' al-khatt5.b, 'Ali,

Anas ibn Malik and others. Knowledge of the possession of such manuscripts by these families prompted many jurists and traditionists of succeeding generations to go in search of such

materials.'0 Nor are Schacht's sweeping conclusions shared

by some other Western scholars.t1

In his book, Kitith Ikhtileif al-Fugahre, Abu Ja`far Muhammad

ibn Jarir al-Tabari (d.310/922-3), in the section of al-muiltra'a

wa al-musagdt, records in detail theories of the early jurists on

the general problems of metayage and lease of land (kirr

al-ard.' 2 All the juristic theories based on the Hadith and

Sunna of the Prophet widely diverge and contradict each other.

The jurists interpret the Hadiths and the Contract (Mteama/a)

of Khaybar (which was concluded with the farmers of Khaybar)

from their different viewpoints. As we shall see later, these

differing viewpoints were basically conditioned by the real

socio-economic situation of their respective times. Tabari,

introducing the subject of nut ruge, states that the Fugalur

unanimously agree that an agricultural labourer (ajtr) can be

hired for fixed and determinate wages (ujra), in money or in

kind, for a definite period, for irrigating a date-palm and

Two Versions of the Muzeira'a-Hadiths 9

tending to.all agricultural tasks, and similarly for cultivating aid

bayda' ("white" land, i.e., a bare land without fruit trees). But the heat:ha' fundamentally differ on the issue of \ motoyage.

"They disagree", says Tabari, "whether an `anvil (tenant, cultivator) can be hired for irrigating a date-palm and for other related works, for a certain part of its produce; similarly, wheth-

er he can be engaged to till a piece of agricultural land for a

certain stipulated share of the produce."11

The systematic solutions and elaborate answers to the problem of metayage worked out by the jurists in their respective

schools of law have many nuances and gradations of meaning

and interpretation. Their theories are at variance because they

developed them M different social contexts. For the sake of our discussion these disparate solutions may be reduced to two broad versions with basically divergent attitudes, although

these views are not mutually exclusive. According to one point

of view muzara'a is absolutely invalid in Islamic law. -The most

prominent and cogent representatives of this attitude are the gragian jurist Abu Hanifa (d. 150/767-8), and the Syrian 'Abd al-Rahman al-Awzari (d. 15711773-4).14 We shall discuss their doctrines in detail. Ibn Hazm (d. 456/1063-4), barring his modifications in the theory of muzdraca, belongs to this school of thought. He holds that the labour of an agricultural tenant/

sharecropper is as sacred as the land of a land owner. He explicitly states that lease of land as a pre-determined exclusive share of the landlord is absolutely unlawful—whether the land is leased against a part of its produce, against money, or in kind. "Any person who holds land", says Ibn Hazm in a typically taut and terse style, "must cultivate it himself, or give it to another tiller without charging him any rent or

recompense, or he must simply withhold it."15

The second viewpoint to which the majority of the Fugahor subscribes maintains that lease of land against a certain part of its produce, against money, or in kind, is legal and permissible. This standpoint, again, contains various nuances of interpret-

ation according to the relations they bear to the central analogy of the Contract of Khaybar which unifies this version, and also


to the theory of primitive tenures. In this version theories of Malik ibn Anas (d. 179/795-6) and al-Shaffil occupy a unique position, for their conception of muzarcra fundamentally differs

from that of others. They limit mJtdyage to the less precarious case of fruit, and invalidate it for bare land. This opinion was also shared by the graqian jurist Abii Thawr (d. 240/854-5).16 This second version, as we shall see, conceptually belongs to a later period when interpretative methods were no more incondite and when, as in the theories of Malik, Abu Yusuf and al-Shafi'l

the theme gradually developed that the purpose of the custom-ary land tenures was actually to promote and satisfy human

needs. Hence the juridical concept of rukhsa (literally concession or special dispensation), exception to the general Prophetic ban

on malayage. This concept of rukhsa was developed to justify

humane and benevolent interpretation of the prohibition. We shall discuss later how the generalized law of ban was gradually modified for exceptional cases. We shall also see that without this modification of the law, as the Umma followed its natural course of development, the entire growth of land laws would have been arrested at the very start when the Community expanded after the Great Conquests in the Ist/seventh century. The point of departure for the proponents of all these views and

in particular for the latter, is the theory of primitive tenures. This theory was systematically formulated by the jurists to adduce adequate grounds for a logical development of the

classical doctrine of muzara‘a.

The Theory of Primitive Tenures

According to the fuqaha', there existed in the pre-Islamic

agrarian systems in Arabia and elsewhere certain inchoate and customary forms of landholding which were primarily charac-terized by an aleatory and precarious nature. Their real economic and social role is obscure ; however, with the help of

our meager evidence in the literary and liadith sources, some

tenable conjectures may be made. Under these land tenures rent of land was not fixed in clear and precise terms ; the shares of tenant and landlord were not determined beforehand."

Two Versions of the Muzdra`a4adiths 11

These forms of tenancy are variously termed in the Ifadith and Fig* literature as mukhdbara or khibr, mulyigala or 1,mql, mutajara, mara'a etc.'s According to the Fugahcr and the traditionists, these primitive tenures antedated Islam. This fact suggests an evolution of the doctrine and makes this theory justifiable for the purposes of conceptualizing various elements -and relations in the process of solving our problem which presumably originated in the conflict between the ideological structure of the Shari`a—an idealist Weltanschauung—and the newly emerging socio-economic situation after the territorial expansions. The problem can be identified and solved

if our enquiry concentrates upon the process by which the emergent concepts, congeries and elements were sifted and integrated within the broad frame of reference of Islamic law in a refined and genuine mould cast by the ideal or Grundnorm of the Sharra.

The FugaluV seem to be right in assuming that, under these primitive forms of tenure, land was held by a tenant under very uncertain conditions and, perhaps, on arbitrary terms which were, in fact, imposed by force of custom and tradition. These conditions were largely determined by the social status of an individual rather than by virtue of any legal or contractual arrangement between landlord and tenant. In strict terms this did not constitute a pure voluntary agreement (in Islamic terminology this is called 'aqd—legal contract, implying an enforceable act involving a bilateral declaration, namely, the offer, ijdb, and the acceptance, qab00. This means that these tenures were not based on a legal foundation of claims, rights and obligations.

It may be'fairly assumed that this state of affairs may arise because of a primitive 'natural' economy (Naturahvirtschaft) which is not market oriented in the modern sense of the term, and in which the role of money is not significant. In Max Weber's sociology such primitive landholdings fall under the general category of 'status contract', and those which are characterized by exchange or market economy, under 'purposive contract'.19 As the range of contractual freedom largely de-pends on the extent of the market, in a self-sufficient 'natural'


economy, where exchange has not developed, the customary

practices- tend to define and delimit an individual's non-

economic privileges and his relations with other individuals,

"not with economic Considerations, but with the individual's

origin, education or social status".20 In other words, the

concept of obligations in such precarious landholdings was more or less non-existent. The tenant was practically controlled "by

a regimen not of law but of caprice". Henry Maine refers to

this phenomenon when he observes that the movement of the

progressive societies "has hitherto been a movement from status to contract."21

This explains the element of uncertainty and risk in the

indeterminateness of the shares involved' in these tenancies. This

also makes intelligible the theories of money rents and asl

(substance, capital) which Malik was led to postulate when he

fixed his gaze on the element of risk and when he adumbrated

that the use of money, both as medium of exchange and as an

accurate measure of the stipulated shares of landlord and

tenant, does away with the element of chance. He maintained

that the presence of a tangible material substance or asl could

possibly legitimize and Islamize the customary land practices.

This theory/of Malik will be treated in full in the following pages. It is now pertinent to explain the concept of gharar,

risk or uncertainty, which is so central to this theory of primitive

tenures.

The Concept of Gharar

Gharar means hazard, chance, or risk (khatar). In the legal

terminology of the Fuqaha', it is the sale of a thing which is not

present at hand; or the sale of a thing whose ̀ aqiba (consequence,

outcome) is not known; or a sale involving risk or hazard in which

one does not know whether it will come to be or not, as a fish

in the water, or a bird in the air. It means that this kind of

transaction (which was banned in Islam)22 "in its external aspect

is tantamount to deceiving the buyer, while in its internal aspect

the nature of the object is not known,',23

Malik explains in great detail the bay' al-gharar, or aleatory

Two Versions of the Muzara'a-kladiths 13

transaction, in his Muwatta'. He defines gharar or mukhatara

(from khatar, risk, stake) as sale of an object which is not present and thus who'se quality of being good or bad is not known to the

buyer : as sale of a runaway slave or an animal which has been

lost by its owner; or the sale of an offspring still in the womb of

its, mother; or as buying of olive with, olive oil, or sesame with

sesame oil, or butter with butter oil. These are all illegal sales,

according to Auk for he thinks'that an element of chance en-

ters into them. The person who buys grains of sesame or a simi-lar thing with the sesame oil does not actually know whether the

grains will_ yield him any oil at all. These aleatory sales were

common in ancient times. He says that to this category belong the

ancient sales of mulainasa and muniibadha.24

From this Malik and other jurists derive the general legal

principle that a contract must not be doubtful and uncertain as far as rights and obligations of the parties are concerned. The ob-

ject of the contract must be precisely determined, price and

terms must be clear and known (na'llan). This is generally true

of objects which can be measured, counted or weighed, which are

subject to the prohibition of riba (usury, interest). Therefore, as a

corollary, no undetermined quantity (juzaf) can be transacted at

random. It is not permissible to sell dates which are still unripe,

to be delivered when they have ripened, because it is not known

whether they will actually ripen or not. This practice is called

muzabana.25

The Mgr:ha' then logically extend this concept of gharar to

the theory of primitive tenures, which according to them were

not only customary but were also aleatory in their basic charac-ter, because the share of a tenant was not fixed definitively.

They, however, significantly differ as to the nature and degree

of gharar which enters into these forms of tenancy. Abil-Hanica,

as will become clear soon, applies this principle of gharar in

toto to all types of ancient forms of tenure. He categorically dis-

allows inotayage in the Islamic legal system.26 Malik and Shafici,

on the other hand, adapting the theory to local 'cnal (custom,

practice)' essentially classify gharar-tenancies into two types: sub-stantial and non-substantial. The former consists of those forms


in which the substance, asl or the material base of tenure actu-ally exists, such as a fruit tree when fruit has really appeared and become sound enough to be given to a tenant to water the tree

so that when it ripens it will be shared between the owner and the tenant as stipulated in the contract.27 The theory of sub-stance seeks to circumvent the element of gharar and is perhaps

a practical compromise with the continuing customary practice of Medina. This theory of as1 is a resonant keynote of the doctrines of Malik and Shafi'i.

As regards the non-substantial tenure, Malik (and also

Shafi'i) propounds that there is no substance or material base in it on which a tenant can employ his labour : in the case of

matayage of a bare land a person takes land on lease, ploughs it, sows the seed, and cultivates it with his own labour, animals and instruments. The landlord gives his bare land and does not risk much. Unlike the fruit-mitayage the bare land-tenancy lacks the basic substance like that of fruit which naturally and spontaneo-usly exists for the labourer to work with. But if a landlord gives his bare land to a tenant for one third or one fourth of its crop

that is exactly a clear case of gharar, "for the crop sometimes is abundant but sometimes it fails and is ruined at the very start. In this case, the landlord will also lose his opportunity of giving his land for a fixed money ; all this muzara'a is gharar

and therefore not permissible,"as

Abu Yfisuf and Shaybani, applying their own methodology to this problem, pronounce that both muzara'a and musaqat

are not really aleatory but, more or less, simple partnership con-

tracts analogous to the sleeping partnership (quad, mudaraba) with the only difference that land or tree takes the place of

capital of mudaraba. We shall discuss this incondite and impre-

cise application of analogy in this connection when we take up

all the other related problems. We shall now consider various forms of primitive tenures and their main characteristics.

Multagala Tenancy

According to the Fitqalui , mukhabara (or khibr), and muliaqala (or hag!) were the pre-Islamic forms of customary


tenure which generally constituted a system of precarious landhol-dings. The Fugahii' differ as to the actual meaning of these terms and the nattile of tenancy forms involved. The term multaqala is used in two different senses. It denotes a deal involving lease

of land against corn, and/or buying of a crop still in growth when grain is in the ear, in exchange of corn.29 Malik defines it as lease of land (kira' al-ard) against corn, hin/a.39 He gives

a tradition which suggests that muhaqala also means buying of zar', i.e. a crop still in growth, for grain.3t Ibn Hajar tells us that al-Layth ibn Sa'd (d. 161 or l 6 5/782), the famous Egyptian jurist (whom we shall meet again and again as a strong spokesman for mitayage) denies that multaqala is a form of mitayage : he interprets it as sale of fruits, still on trees before they have actually ripened, or sale of raw dates in exchange of ripe ones. Ibn Hajar, after giving several definitions of muljaga/a, affirms that the widely accepted definition is that muliaitala is lease of land against a certain part of its produce.32

Ibn Manzar33 and Majd al-Din ibn al-Athir34 give four definitions of muljagala : first, it is a transaction of grain still _ in the ear. Second, it is buying of grain in the ear in exchange of corn. Third, it is a contract of muzara'a stipulating a de-terminate share, that is, one third, one fourth or more or less. It is similar to mukhabara. Fourth, it is lease of land against corn. The Hraqians call it muzilra'a.35

It seems that muliaqala was an old form of landholding of pre-Islamic days in which landless tillers,used to take from land-

lords—individuals, tribes and temples —arable lands on leases

against corn, food, in kind, or against a certain part of the pro-duce of land. These tenures were practised both in the northern

and southern parts of the Arabian Peninsula. N. Rhodokanakis shows in his study of a Sabian inscription of South Arabia that the practice of multligala existed in the ancient times.36 In order to procure food for soldiers certain prescribed taxes which the rural population had to pay to the State were levied in the form of natural products of land. Before the crop had

ripened and harvested, that is, when corn was still in the ear (vor der Ernte auf dem Hahn) and fruit was still on the tree, the


tax collector would come and approximately assess the crop.

The state treasury, after it had secured its share of the crop as tax, used to buy from the peasants the rest of the crop in ex-

change for money, food or flour ler den Bauern urn geld oder

Mehl (bzw. reties Korn) den ihnen belassmm Anted mn Ertrag.

abkauftei. In this way the Fiskus used to secure for itself the

entire crop of the tillers.37 This practice, continues Rhodok-

anakis, is same as muhriola, buying of green standing crop (still

in the ear) in exchange for corn, that is, bay` hi! qamh.38

He also observes that this practice was characterized by a na-

tural economy (Naturahvirtschaft). Through this practice-of pay-

ing in crop shares, gradually the land would become property of

the Fiskus.39

We shall now examine some liadiths which speak about the

ancient practice of mulukala. In a mulifigala-Hadith, Usayd ibn

Zuhayr, a nephew of the famous Companion Rail' ibn Khadij

(d. 74/ 693-4) is reported to have said :

Whenever anyone of us possessed land in surplus to his

needs, he used to give it to another person for cultivating it against one third, or one fourth, or one half of the produce.

In addition to this he used to impose arbitrary conditions

on the tenant, for example, that to the landlord belonged

three shares of the produce which grew on that area of

the field which was irrigated by the small channels._ Moreover, to him also belonged quseirei, i.e., grains left over

in the ears after thrashing, and all the corn which grew

on the area watered by the streamlet (rabic). In those

days life was hard, for tillage was to be done by the iron

plough and other implements. The landlord used to profit (and prosper) by this method. While we were

engaged in this practice, Rafil ibn Khadij approached us and averred, "verily, the Prophet has prohibited you from

an affair, that is, the practice of inultaqala, which was so profitable to you. Obeisance to God and His Prophet

must be more profitable to you. Verily, he has prohibited you from practising haql, and has said that one who has land in surplus to his needs must give it to his (Muslim) brother for cultivation, or he must simply retain it."40

Two Versions of the Muzaraà-Fladiths 17

Another Hadith related by Rafil ibn Khadij, conceives of

muhagala in terms of lease of land for a certain part of the

produce of land, or for grain or food. Rafil says :

We were practising muhaqala in the time of the Prophet. We

used to lease land for one third or one fourth of its produce

and also for a certain measure of food. One day one of

my uncles came and told us that the Prophet had forbid-

den us from an affair which was of profit to us, i.e.,

muh5qala-tenancy. The Prophet had asked the landowner

either to till his land himself, or let another person cultivate

it (for his own use). The Prophet had disapproved of its

lease and other deals (similar to i0.41

In a Hadith of Jabir ibn Àbd Allah (d. 74 or 78/697-8),

haql is expressed in terms of lease of land (kira' al-ard). Jabir

says his heard the Prophet forbidding nutzeihana and !pupil.

He explains muzabana as buying of raw fruit in exchange for

dry dates, and huqfil as rent of land.42 In a similar Hadith

Àbd Allah ibn 'Abbas (d. 68/687-8) explains that in the

language of the Anseir, muhaqala meant kird' al-ard or lease

of land.43 Abu Said al-Khudri (d. 74/693-4) is reported to

have defined mulaigala as lease-of land, which was banned by

The Prophet."

Another version of the muhaqala-Hadiths, which clearly

underlines the aleatory nature of this tenancy, is that of Rafi"s

uncle Zuhayr which has been recorded by Bukhari :

Zuhayr says that the Prophet once asked him what they

were doing with their mahliqil, i.e., agricultural lands.

Zuhayr replied that they were leasing them with the sti-

pulation that whatever was harvested on the area of the

field watered by the canal, actually belonged to the land-

lord. He told the Prophet that they were also practising

leases against certain camel loads of dates and barley. On this the Prophet told him that they should not practise

such tenures, They should cultivate their lands them-

selves, or let someone else till them for himself, or they

should simply retain their lands.45


In Shaybanits Muwat?d, a mursal Hadith with its chain of narration not going further than the Medinese Successor Sa‘id ibn-Musayyib, defines muhdqala as buying of grain in the ear for corn, and also as lease of land for corn 46 Besides,

there are numerous traditions related by Ibn `Umar and Zayd

ibn Thait, recorded in almost!all the Had/Eh-compilations, which also :;,uggest that mubdigala was a pre-Islamic form of landholding in which land was leased to a ?Stayer against a certain part of its produce, and more probably, against corn which consisted in paying rent in, kind which was generally stipulated before start of the actual cultivation. This is tantamount to buying zap' (grain still in the ear) by corn. It is possible that there were numerous combinations of rents paid by a tenant

according to the local custom, such as grain plus part of the produce of land. From this it would follow that inulgqala, like mukhabara, was a generic term used for several primitive

types of aleatory and precarious tenure. This broad definition of mulidqala, as given by all these traditions we have cited above, suggests that it generally involved lease of land for

food, grain, or a certain share of the crop: Nevertheless, in the other meaning of muhariala (buying of grain in the ear) no land tenure is involved, as Ta,tidwi points out.47 In some other traditions, which We hate seen already, mubeigala also connotes buying of baql (young green crop still in growth) fora mtasured and known quantity of food (ta'am).48 How-ever, as Rhodokanakis has shown, in actual practice transaction of grain in the ear for corn, food, or money may closely relate

to the fiscal practices of assessment and collection of land

taxes. The tenants, who, during this period of history generally lived at subsistence level of agriculture and in desperate need

of food, were compelled by the state or the conquering com-

munity to sell the rest of their crop (after it had been already taxed) for food or money. Mul)aqa/a was perhaps not a mere

exchange or barter of two commodities, it was also a tenancy

practice which must have many constituent elements and

shades of transaction ; and perhaps there were various combi-

nations of the practice of mubdqala which for lack of documents

Two Versions of the Muzlircea-tladdths 19

cannot be clearly identified and defined. This primitive tenure,

it appears, has generally been held by the Muslim scholars as invalid in Islamic law apparently for its extreme aleatory

nature.49

Mukhabara-Tenancy

Mukbabara or khibr is another name for similar forms

of primitive tenure. There are again divergent interpretations

of this term in our sources. For Ibn Manpir, it is a contract or bargain with a person to cultivate land for a certain part

of its produce, or against a determinate share, like one third,

one fourth etc.50 Re further explains that the term is either

derived from khabir (a soft soil) or from Khaybar, the Arabian

oasis town, where such a deal, as claimed by the Fuqatr, took

place between the Muslims and the Jewish agriculturists who,

after their surrender, offered that they would pay half of their produce to the Muslims provided they were left on their lands.

Therefore, khabarahum may literally mean ̀ amalahum ft Khaybar,

i.e., the Prophet engaged them for tilling the Iand of Khaybar.

A person, well versed in matters of agriculture, says Ibn Manzur,

is also called khabir or 'akkeir,51 and therefore mu'alcara is

also synonymous with mukhabara.52 According to Edward

Lane, khabarahu (mukhabara) means "he made a contract or

bargain with a person to till, sow, and cultivate land for a

share of its proudce, or for a third, or a quarter or for a

determinate share, such as, a third, or a quarter or some other

portion, or for half, or the like".53 Among other meanings

of the term, Ibn al-Athir emphasizes that another coordinate

of its derivation is khubra, which means a share.54 For al-

Firozabadi, it is cultivation of soil for half of its produce,

and that it is synonymous with khibr and mu'dkara.55

For Abu Hanifa and shafri, mubdqala, mukhabara and

muzeira`a-tenancies are essentially similar both in terms of their

concepts and contents : they belong to the genre of aleatory

transactions. Sha,fi‘i defines these as follows : "These forms

of landholding could be defined as when a person gives to

another person a bare land (in contradistinction to an orchard


of fruit trees), on the condition that the tiller cultivates this

land for .a share of its produce. These three forms of tenancy

were subsequently banned by the Prophet".56 This statement

of Shafi'i clearly Means that, because of the uncertainty of

shares involved, all these ancient tenures were considered

incompatible with the principles of the Sharià, and were there-

fore interdicted.

Abu Àbd Allah Muhammad ibn Àbd al-Baqi al-Zurgani57

and Ibn Hazm58 do not agree with those scholars who tend

to derive the meaning of nutkhabara from Khaybar. They

hold that it was an ancient system of land tenure among the

pre-Islamic 'Arabs in which land was leased for a share of its

produce. The term is derived from khubra, meaning a know-

ledge of wells or agriculture which connotes cultivation. The

term mukhabara is, therefore, derived from these, and a culti-

vator was called khabir. This etymological interpretation of

the term is very significant and is in consonance with its

conceptual definition and the historical context, which will be

elaborated further with evidence from Iladith and other sources.

From this it would follow that mukhabara, like nthauala, was

an old form of tenure, anterior to and not pokerior to the

Prophet's deal at Khaybar which was made in the seventh year

of the Hijra, A. D. 628-9.

The authoritative Hadiths, which seek to establish decisively

the fact that mukhabara was prohibited by the Prophet, are

related on the authority of Rail' ibn Khadij, Jabir ibn 'Abd

Allah, Àbd Allah ibn 'Llmar and Zayd ibn Thabit.59 Muslim

records :

Ibn Juray?Atai-Jabir ibn 'Abd Allah said that the Prophet

banned mukhabara, muhagala, and muzabana, and buying

of fruit before it had ripened. . lair explains that

mukhabara is a deal in which a person gives bare land to a

cultivator who spends money on its tillage and then takes

for his expenditure and labour a share of the produce.60

Bukhari gives a tradition from Tails (d. 106/724-5), who, in

answer to a suggestion that he should give up mukhabara, says :

Two Versions of the Muzciraà-Itadiths 21

"I give lands on mukhabara because 'Abd Allah ibn 'Abbas,

who is more knowledgeable in Hadtith matters, related to me that

the Prophet did not ban it."61 This tradition has also been

recorded by Khwarizmi in a variant version :62

Abu Hanifa related from Harnmad (d. 120/737-8), who says that lie asked Salim ibn 'Abd Allah ibn 'Umar (d. circa 106/724-5) and Ta'iis about the problem of muzara'a-

whether land could be leased for one third or one fourth

of its produce. They both replied that there was no harm in it. Then I (Abu Hanifa) related their opinion to Ibrahim al-Nakhaì (d. 95 or 96/714-5) who reprehended

this practice and said that, because Ta'fis was himself the owner of an agricultural estate, he approved of the practice

of muzaraà.

Abii Da' id gives traditions from Jabir and Zayd ibn Thabit

on the prohibition of mukhabara :

Thabit ibn Hajjaj-Zayd ibn Thabit says that the Prophet outlawed mukhabara. Thabit ibn Hajjal asked-him about the meaning of the term mukhabara. He said that it was a deal in which land was leased against one half, or one third,

or one fourth of its produce.61

Jabir ibn Àbd Allah says that he heard the Prophet saying:

"One who does not give up mukhabara must inevitably face

war from God and his Messenger.64

Bukhari, Muslim, Ibn Maja and Abu Da'fid give a famous

1.1adith from Ibn 'Omar which Shafiì also records in his Risala

with his commentary. Another variant may be found in Musnad

of Ahmad Ibn Hanbal.65

Shafiri reports :

Sufyaln-Àmr-Ibn Ùmar says, "we were practising land

leases on the basis of mukhabara (in other variants kith' al-ard),

and we did not see harm in it until Rafi` ibn Khadij claimed

that the Prophet had prohibited it. Now because of this we

abandoned this practice. Ibn Ùmar used 'to benefit by such

leases (as long as he did not hear the ban) as he had considered


it permissible. He then discontinued it as soon as he heard the prohibition, despite its being reported by a single blameless

transmitter (khabar al-wabid) from the Prophet. "It is signifi-cant", says Shafili, "that Ibn 'Umar did not exercise his own individual opinion in respect of the Hadiths from the Prophet. He did not say that as nobody had reproached them for indulg-ing in the practice so far, they were still doing it From this, of course, Shafi'i derives the principles that in the post-Prophetic period a practice can be followed for which there is no explicit Hadith from the Prophet available, and that khabar al-wabid has

efficacy, i.e., that singh, blameless transmitter's Hadith is valid.

From all this, it follows that, despite various nuances of

interpretation, the Fugaha" tend to generalize that mukhabara and mu/Kiva/2 signify and epitomize the pre-Islamic customary system of land tenures in which land, in general, was leased against a certain share of the crop, or against a certain amount of grain, or similar other forms of exchange. Now, the Fugaha'

ask two logical questions. First, did these primitive forms of tenancy actually constitute arbitrary leases without entailing any legal and contractual validity ? Second, whether these tended to contravene the ethics of Islam's economic order which, on the analogy of riba and other such transactions, excludes all speculative future values of the genre of gharar-

transactions ? They postulate that these tenures do not consti-tute strict bilateral contracts (in the juridical sense) with legal effects. They agree on the general definition of these forms of landholding primarily as lease of land for a part of its produce, but they finally classify all these into twotategories : determinate mukhabara, and indeterminate mukhabara. The former comprises lease of land against a determinate, fixed and clearly defined

part of the crop, such as one third or one fourth. This tenancy is also known as muzara`a.

On the other hand, the jurists define indeterminate mukhabara in terms of ancient types of land tenure of very pri-mitive nature. In these land tenures, which are revealed by the

traditions we have cited above, for the purposes of cultivation and distribution of crop between landlord and tenant, land was


demarcated into certain areas according to their general fertility and availability of water. The land was then leased to a tenant with the arbitrary condition that he was not entitled to any

definitively fixed share, whatever would be, cultivated on the fertile areas would, (by the force of custom) belong, in the first place, to the landlord, and whatever happened to be harvested on the less fertile area would be the tenant's.66 In addition to this, some more precarious conditions were imposed on the under-privileged tenant, which reduced him to the status of a mere serf, an adjunct of the land itself with no rights of his

own. This is also borne out by many Hadiths67 recorded in .the six authoritative collections. Some of these we have already given before. For Fugaha' this type of land lease is absolutely invalid.68

But this basic categorization by the Fugaha' seems to be arbitrary, as Abu Hanifa points out, for the degree of gharar more or less is present in all these forms whether or not they are clearly defined and determinate. The difference is of degree and not of kind, because all are basically aleatory tenures

and backed by the sanction of blind custom and tradition rather than by the free will of the tenant. This element of gharar was the obvious 'ilia for their general prohibition. To discriminate and characterize some as gharar and thus indeter-minate, and others as comparatively less aleatory and hence contractual, and therefore valid in law, is an over-simplification of the problem which is not warranted by the nature of these tenures and complexity of the issue. Fugaha's argumentation about resolution of this question of determinateness or indeter-minateness of the shares in matayage and of their being right or wrong is marked by reasoning of legal casuistry rather than based on any socio-economic reason.

At any rate, these antiquarian practices, as the jurists conceived of them, were generally indeterminate, precarious, and

extremely custom-ridden. Only those customs according to the logic of the Fugaha's interpretation and application could come within the range of their juridical purview which accorded


with the canons of certainty and definiteness. Caprice and fancy, they believed, must yield its place to rule and order ; and• arbitrariness and customary status must be changed and modified with the law of contracts and obligations based on normative,

definitive, and certain principles of the SharVa. This was the

fundamental aim of the jurists in elaborating the theories of

gharar and primitive tenures.

The determinate and definitive category of mukhdbara is

again subject to divergent interpretations as to whether it is valid and permissible in law. To us it seems, given all the evidence, that all these tenancies variously called mulyigala,

mukhabara, muziircea and muscigat, were more or less widely

practised, not only in the Arab Peninsula of the pre-Islamic days, but also, as we shall see in detail in the fourth chapter, in the Byzantine and Pcrsian territories. Jawad 'All, in his study of the social and economic conditions of the 'Arabs before

Islam, has shown that the 'Arabs had already developed an

ingenious terminology in this respect. The term mukhabara, it

seems, was in common use. He also observes that even use of money in certain types of tenure has been reported.69 Maurice

Gaudefroy-Demombynes remarks that muzetra'a and must/Tit were

of the genre of metayage agricole, i.e., agricultural share-

cropping, and were the customary pre-Islamic land tenures 70

Abu Hanifa, maiik and Shafri, in their general attitude,

clearly state that all species of the genus of pre-Islamic

tenancies, generally termed istikrei' al-ard bi ba`di ma yakhruju

minha, that is, leasing of land for a certain part of its produce,

are essentially invalid and not permissible in the SharVa, because

they are contrary to three-fundamental ethico-economic princi-

ples of the SharVa they are gharar, or aleatory economic

transactions ; they involve hiring of a person (tenant)-for unde-

fined and indeterminate wages'; they involve buying of a

standing crop before it has ripened. The Fuqahir emphasize in

very strong terms that these practices have been banned by

virtue of Unlit or consensus 71 From this, they infer that no

land can be leased against a share of its produce because in this

Two Versions of the Muzara`a-Iladiths 25

case the reward, and' the wages of the tenant are not clearly fixed beforehand : an ambiguous share of the crop, ̀ duiba or conse-quence of which is not known, and which is not yet in existence, is tantamount to depriving him of his due wages, when owing

to vagaries of the weather he is in a more disadvantageous position than the landlord. malik and Shari, in their modifi-cations of this concept, were however led to formulate their theories of musdadt and money-rent after they had rejected mOtayage of bare land. They limited sharecropping to fruit trees only. Shafi'i further limits it to dates and grapes only. Both of them reason that lease of land against food is an exchange of food for food involving sale of time (or credit), nasi'a, and hence banned ; therefore, the rent must be certain, clearly and un-ambiguously defined, and precisely known.72 The Syrian jurist al-Awzari considered mural-era a reprehensible practice for these reasons. Abu Thawr (Ibrahim ibn Khalid 'Ali al-Yaman al-Kalbi, d. 240/854-5), the 'Iraqian jurist, was asked about leasing land for muzdra`a, to which he had replied that it was biitil, i.e., null and void.73

On the other hand, Sufyan al-Thawri (d. 161/777-8), Abu Yfisuf (d. 182/798-9), Shaybani (d. 1891804-5), Ahmad ibn Hanbal (d. 241/855-6) and the traditionists, like Bukhari (d. 256/869-870), Muslim (d. 261/874-5), Ibn Maja (d. 283/896-7), Nasa'i (d. 303/915-6), and most of the later jurists have put forward their own interpretations of the theory of primitive tenures. For them the 'ilia or reason for prohibiting lease of land was the uncertainty and indeterminateness of the shares. If' the shares are clearly defined with mutual obligations, whether in terms of grain or money, the contracts of muziinta, nutseigdt and mukhdbara are legal and "valid.74 Shaybani says that he validates these on the authority of Salim and Ta'fis, whereas Abu Hanifa rejects them on the authority of Ibrahim al-Nakhari (d. 95 or 96/714-5).75

As we observed before,' Tabawi gives his own interpretation of mulnigala on the basis of the Harlith of Ibn 'Abbas. He explains that this term means buying of grain still in the ear


while the crop is in growth, in exchange for food. He takes an exception to those jurists who interpret it as kira' al-ard (lease

of land) for a certain part of its produce. According to him, it

is not lease of land for certain specified shares (ajza' magama)

of its produce. As far as primitive tenures are concerned, he

states, they consisted in fluid (improper, irregular) and

precarious forms of landholding in which the landlord took the

lion's share of the crop (istrthezr rabb al-ard) in the deal

between him and the tenant. Moreover, in these tenancies, says Tahawi, the landlord had certain exclusive rights to incidental and adjunct products, or plants, like grain chaff (tibn). The

prohibition of muilinta, he concludes, was for this reason of

/avid, which used to enter into this deal. Logically, therefore, contract of sharecropping is not inherently improper or

abnorma1.76

In connection with the jurists' theory of primitive tenures three important considerations• are called for First, it reflects a later stage of development of the doctrine during the' first century of Islam, when in the wake of conquests and the conse-quent territorial expansion of Islam, these old tenures were breaking up under the impact of new economic factors, such as gradual employment of money in these deals, and growth

of population which had increased demand for land and hence need for more lease contracts. These ancient forms of tenure have great historical, legal and social significance for our study, as they belong to the very early period of

Islam. They form the starting point for the juristic

formulation of the classical theory of muzaraà. There

is no reason to reject the muhaqalalmukhabaralmuzaraà-

traditions as fabricated and spurious when we can discern a clear evolution of these tenures both in their contents and con-cepts. In a sense, these also reflect the earlier phase of the development of the Muslim community in its social and economic aspects. The economic significance of these muzaraà-

tladiths, it appears, has so far been neglected by the Islamicists..

Second, the prohibition of these primitive tenures suggests the

Two Versions of the Muzaraca-Itadiths

27

conception of an embryonic, limited, and small Umma subsist-ing on land more or less equally shared by its members. This point needs further elaboration. This in itself may be seen as an extension of the tribal concept of land. As we shall see, individual Muslims as members of the Umma, owned land not in an absolute sense, but with the qualification that the over-all lordship over land belonged to the community as a whole, for the Muslims at that time were poor and lacked adequate econo-mic resources. This was why they were exhorted by the Prophet to lend free the surplus lands to their brother Muslims.77 The %laths, which allude to an early land practice ascribed to the Prophet that any Muslim who takes the initiative, clears a "dead" land and brings it to life, becomes its owner, are posterior to the concept of a limited and cohesively collective Umma. The implication of this tladith, which is found in all the Hadith compilations, is probably that one who works the land possesses it. This institution of ihyral-mawat, "bringing of dead land to life", as we discuss it in the sixth chapter, clearly belonged to a later period of development when the concepts of ownership °Nand, rights, obligations and contracts pertaining to it were elaborated under the Umayyads in the context of a social pheno-menon embedded with the gradually emerging individualism and private property, which, it seems, developed after the Byzantine and Sasanian elements and institutions had come to the fold of Islam. This will be discussed in detail in the last five chapters. Third, there is persistent tendency among the jurists to make concessions in order to accommodate already existing reasonable customary tenures as long as they are not too flagrantly contrary to the Islamic principles.

Coming back to our main problem, it must be stated that the two broad versions of the muzaraia-gadiths are in the nature of presumptive interpretations based on the authority of the Sunna, the normative teaching of the Prophet. Their hypo-theses regarding the validity or non-validity of lease of land are conflicting and contradictory. The problem becomes more confounded by a selective method, i.e., by rejecting one version


and accepting the other, without relating it to the historical context. The problem can be resolved only if a critical analysis of the traditions is made taking full account of the history of the doctrine. Only that set of hypotheses is possible which can be verified with adequate evidence. Our main task will be to investigate and give all the available evidence both in points of isnad and of history to find out which of these versions has greater antecedent probability than the other, not in the sense that a certain hypothesis stands confirmed if particulars

are found, but rather in the sense of making positive 'a priori' judgment which can adequately provide explanation more than the other possible alternative assumptions.

Evidence of !snail for the First Version

The version of the problem which excludes any lease of land from the Islamic economic order is based on various

plausible Hadiths with isnads directly linked to the Prophet. The most important among them are related by the Companions, such as Rafi` ibn Khadij (d. 74/693-4),78 Jabir ibn Àbd Allah (d. 78/697-8), Abu Sa'id al-Khudri (d. 74/693-4), Abu Hurayra (d. 591678-6), and 'Abd Allah ibn 'Omar (d. 73/692-3). Follow-ing are the chief traditions in this connection :

(a) Awzaì-Àta'-Jabir says that the Prophet said-: One whO owns land must cultivate it himself, or bestow it free, i.e., lend it to another person to let him cultivate it. If he does not do this, he must retain his land.79 (A variant version of this Ilaclith in Bukhari's $411) states that the people (in Medina) • were leasing their lands against one fourth and one half of land's produce which the Prophet banned.

(b) Bukayr ibn al-Akhnas-Vita '-.1abir says that he Prophet prohibited lease of land against any rent or part of land's produce.80

(c) Awzaì-Abu al-Najashi, mawla (client) of RH` ibn Khadij-Rafi` says that Zuhayr ibn Rafi`, his uncle, said that the Prophet had forbidden them from a matter

Two Versions of the Muzarala-Hadiths 29

which was very beneficial for them. Rafi` asked him

about this matter, saying that whatever the Prophet had said must be right. Zuhayr said that the Prophet had 'asked him as to what they were doing with their agricultural lands. He told the Prophet that they were leasing them against whatever grew on the rivulet or the ,streamlet ; or against camel loads of dates or barley. The Prophet thereupon forbade them saying that they should cultivate their lands themselves, or they should let some other people cultivate them (free of charge), or they must simply withhold the lands.23

(d) Sulaythan ibn Harb-Hammad ibn Zayd-Ayydb al-Sakhtiyani-Nafic stated that Ibn Ùmar used to lease his land. Ibn 'Omar went to see Rau' to ask him about the problem of land lease, and he (Nan') also

accompanied him. When Ibn Òmar asked him about the problem, Rafi` replied that the Prophet had banned it.82

(e) Abu Salama ibn Àbd al-Rahman ibn ‘Awf-Abu Hurayra said that the Prophet declared- : One who owns land must till it himself or give it free to his brother, or

otherwise he must withhold it.83

(f) Ibn Wahb-Malik ibn Anas-Da'ad ibn al-Husayn says that Abu Sufyan, client of Ibn Abi Alunad, told him that he heard Abil Said al-Khudri saying that the Prophet had banned muzabana and mul.taga/a. He explained that muheigala was lease of land.84

(g) Harnmad ibn Salama-cAmr ibn Dinar says that he heard Àbd Allah ibn Òmar saying that the Prophet prohibi-ted lease of land.85

Ibn Hazm says that all these .Companions of the Prophet transmit the categorical ban on lease of land by the Prophet. This is tantamount to naql tawatur; that is, the transmission

of Hadiths on the authority of numerous Companions of the

Prophet whose reliability is supposed to be beyond any reproach and which is, therefore, equal to certitude.86


This raises two improtant problems. First, the tradition (g) appears to be contradictory to the tradition (d) which suggests that Ibn Ùmar cannot have directly transmitted a ban on land lease by the Prophet, for he was told of the ban by Rat ibn KhadijS7 after Ibn Ùmar had practised land lease for almost forty years.88 At the same time Ibn Ùmar is the main trans-mitter of the Prophet's Mtdmakz-contract in Khaybar which was later interpreted as a contract of mitayage.89 It may there-fore be inferred that either Ibn Ùmar before hearing of a tradition to the contrary, had considered lease of land lawful, or that the Raft, tradition is a much later product. But our sources unanimously agree that Ibn Ùmar was not aware of the fact that lease of land was banned until Rat had categorically stated it to him. From this it also follows that the mitayage interpretation of the Mietimala-Hadiths is perhaps later than Ibn gUrnar's celebrated retraction. However, this does not 'adequately explain the fact that he does not transmit the prohibition directly from the Prophet.

Second, it may be asked why a land owner should lend his land free of charge to another person, as this does not take into account cost and labour expended on the improvement of land which transforms it into an important and scarce factor of production. This may be explained, as we saw earlier, by the fact that these traditions, which prescribe lending of land free of charge to a Muslim brother, belong to the earliest period of Islam when the Umma was small, limited and cohesive in all its socio economic aspects—being primarily permeated with collective ideals. The ultimate ownership of land in a general sense vested' in the Umma. This general rule gradually gave way to the more developed individualistic notions when the Umma expanded and grew into a vast Empire which embraced

many diverse elements. Another explanation of not charging any rent would be that the prohibition of lease of land and metayage merely reflects an aspiration to promote peasant-proprietorship. It is difficult to support this assumption with

adequate evidence. Another explanation that the main intention

and meaning of the anti-muzeirda Hadiths is to project the

Two Versions of the Muzlirda-Hadiths 31

reaction of pious people against the Umayyad Agrarpolitik seems to be improbable for the reasons we have given else-where.90

There is ample corroborative evidence in our sources which suggests that not only the prominent Companions upheld the ban on mitayage but that many famous Successors also strongly disapproved of this practice. We have already mentioned the Hadith of Ibn 'Umar in which Nat, his client, reports the ban. It implies that whenever a Successor came to know of the ban he gave up the lease of land which he was still carrying on. The famous Successors who were also great jurists and traditionists, such as, Mujahid (d. 103/721-2), Taffis (d. 106/724-5)91 and vita' (d. 114 or 115/733-4) have been 'described by Ibn Sed (d. 230/ 844-5) as the most reliable among the Successors : they were in particular well versed with the Islamic laws of buyu' (economic transactions). Ibn Sa'd mentions that 'Ata,' was famous, for he had mastered the Hadiths relating to economic transactions more than anyother type of Hacliths.92 Both Tal'iis and 'ma' are reported to have disapproved of lease of land. Mujahid was a

prominent Meccan Successor and the main transmitter of tradi-tions froin Ibn 'Abbas : he held that cultivation of land was not valid unless it was done by the owner himself, or unless he bestowed it on another person without charging anything.93 Ipsan al-Basri (d. 110/728-9) also considered lease of land rep-rehensible, and Ìkrima—client of Ibn 'Abbas—declared it invalid. Qasim ibn Muhammad ibn Abi Bakr (d. 105/723-4) was asked about lease of land. He doubted the Hadith of Raw (which suggests that lease of land for a fixed sum of money is reasonable and permissible) in this connection. Muhammad ibn Sirin (d. 110/728-9), a very reliable and sound jurist Successor, felt repugnance against the practice of leasing one's land for money.

However, he considered muzdra'a (sharecropping) valid on the

analogy of muddraba.94

Al-Awza'i affirms that 'Ata.', Makiffil (d. 118/736-7), Mujahid

and Hasan al-Basri used to propound that it was not permissible

to advance bare land against money, nor was it valid to give an


orchard on lease for money, and that there were only two possi-bilities—either the cultivator should cultivate it himself, or he should give it free to some other person to work.95 As we have

seen before, Sha'bi (d. 104 or 110/728-9) says that Masriiq (d. 62/681-2), who was a Kufan Successor, abhorred land lease, and "due to this reason he forbade me this kind of deal. I used

to have more agricultural estates in the Sawad (lower 'Iraq) than anyother landlord". These two famous Successors, as this report corroborates, did not allow lease of land against anything at al1.98

qsa ibn Sahl (ibn PAW), whom Ibn Hajar considers among the

thiqat (reliable transmitters of Hadith),97 says : "I was an orphan and under the guardianship of my grand-father, 125.fi` ibn Khadij. One year I went on pilgrimage with him. My brother `Imran ibn Sahl came to see ffiim. He said that they had leased their land for a sum of two hundred dirhems. Upon this, Rafic

said that they should give up that practice because the Prophet had prohibited it. He said that his uncle, also called Rafic, gave

a similar report."98

It is certain that till about the first half of the second century

the controversy about the validity or invalidity of land lease and tn(tuyage was going on, as Abu Hanifa, Awzari and other Fugalur have persistently maintained that motayage is not valid in Islam. It is therefore certain that until the first quarter of the second century, that is, until the period of ,the later Umayyads, the system of mdtayage, despite its widespread -prevalence as an old customary institution, which had taken deep roots in the society of that time, had still not found acceptance in an Islamic ideological sense. This problem of the continuity of old practice and its relation with the idealistic ethos of the Shatter

we shall discuss later on ; suffice it to say here that in the midst of conflicting evidence in the sources there is ample

reason to believe that the original Islamic ban on the primitive or customary tenures, limited as it was to an historical situation which was no longer there after the Great Conquests, was under

the force of newly developing social circumstances gradually relegated to the background. This fact therefore does not rule

out the possibility of another hypothesis that the metayage system

Two Versions of the Muzartea-Hatliths 33

of the Sisinian and Byzantine agrarian regimes may have been taken over and developed by the Umayyads, and later by the 'Abbasids.

The Umayyad administration, for its obviously pressing political and financial needs, transformed the old concept of fay' (conquered agricultural lands) into a systematic theory of state fay'-lands and developed state muzara'a to augment the state revenues. In the beginning, this system of muzara'a, as we shall see in more details, tended to be limited between the state and

its dhimmi (protected non-Muslim) peasants who were bound to the soil and had compulsorily to pay land taxes and revenues to the Islamic state. This explains the systematic reasoning of the jurists who, in the classical theory of muzara'a constructed the framework of a political and economic regime based on the relationship of landlord and tenant on the analogy of the contract of Khaybar, in which the tillers of Khaybar, according to the Fuqaha', were allowed to work on the land provided they paid to the Islamic state one. half of their produce. We shall see how

this analogy was later extended to all kinds of tenants—Muslims

or non-Muslims—in a complex process of integration and assimil-ation of the extraneous elements, into an Islamic whole. This stupendous task was performed by the Fuqaha', who, as their title implies, comprehended the fundamental principles of the SharVa, and the necessary principles or roots (usa/), which they

could apply to particular situations to derive necessary and

practical rules and laws (fura'). This will be discussed in detail

when we come to the study of various juristic theories of

muzara'a. Before we examine the evidence of the second version,

according to which lease of land was eithernot banned, or that

an exception, or rukhsa, to the general rule was granted because

of the social necessity at Khaybar, two observations must be made

here. First, our view is that the institution of muzara'a existed

before Islam. In general and in the juristic sense, the system of

muzara'a was characterized by social compulsion and hereditary

bondage of the tenant and his customary status. This did not


come under the legal purview of contractual arrangements condi-tioned by any general law of obligations and rights. The later rationalization and systematization of the customary tenures by

the Fuqaha' in the form of the classical theory of muzara'a must

be understood within this context and in this perspective.

Second, the role of ltadith and the normative Sunna of the Prophet in interdicting the primitive tenures is in perfect accord with the over-all nature\ of Islam's economic ethics to which aleatory transactions are anathema. The small com-munity of the Believers in Medina, surrounded by its formidable enemies grew and developed as a more closely knit community, and as a collective whole, integrated, and cohesive unit in which the economic and social benefits were for all so that the community could develop internally and externally. The sources of wealth were termed ma/ al-Afus/imin.

This general statement must however be qualified. This

does not mean that at this stage the Umma made all sources of wealth and means of production subject to collective control and ownership. This was impossible under these conditions as there was no institutional framework in the modern sense of the term Which could back with political force such a collec-tivization of the means of production. Instead, a moral and ethical principle of religious character pervaded the com-munity. There was undeniably a strong consciousness of solidarity, an intense ethos of communal spirit which very forcefully expressed itself into congregational prayers and rituals, into Zakat (poor-tax), Hall (pilgrimage to Mecca), Jihad (holy war) and Share( (consultation) which were not mere rituals or empty shells without deeper social significance. They epitomized and reflected the fundamental principle that this community. of God was a collectivity of common interests, feelings and actions—with a common purpose and a common ideal., This was the reason for the prohibition of economic transactions like riba and gharar-sales like muzabana, mtilftagala, mukhabara and muzaraà, for these tended to uproot this collec-tive principle of solidarity. Even those Fugaher who rationalize the system of metayage acknowledge that, in general, these

Two Versions of the Muzarrea-tladiths

35

primitive tenures were, proscribed by Islam.

This original and primitive ban in its narrow conceptuali-zation, meanwhile, under the forceful logic of change and social development subsequently lost its idealizing ethos and even its raison d'être, becoming a mere desuetude in later times. Probster's conjecture that vermiitlich handelt es sich bei diesent Vergot um eine Reaktion der Frommen gegen die umaijadische Agrarpolitik, i.e., this ban probably represents a reaction of the pious people against the agrarian policy of the Urnayyads,”, does not rest on any sound foundation. With his sweeping ,generalization Probster brushes away all the genuine Hadiths about the nature of the primitive tenures and _, • Fugalza s monumental scaffolding of concepts and theories based on this material. Probster does not even ask whether the reaction of the pious souls had some basis, for nothing

happens In a vacuum. Their reaction must have been in response to some action. They must have had some criterion embodied in the normative Sunna of the Prophet and his Companions to judge the Agrarpolitik of the Umayyads. This Grundnorm can, in the nature of the case, not have been but practice and tradition which had in categorical terms banned metayage. There were nebulous Hadiths anterior to the Great Conquests, which, as we have seen, had abrogated all economic transactions of the genre of gharar. The ribii-l.Iadiths are other such examples which have been corroborated by the Qur'an itself.100

The fact is that in the post-conquest period, under the Umayyads, in particular, the vast newly conquered territories, which were earlier made collective property of all Muslims by Ùmar Ibn al-KhatIab, were, under the changed circumstances

now becoming private and dynastic estates. The significance and essence of the concept of common fay'-lands will be exami-ned subsequently. This new formidable and colossal social change brought in its wake social conflicts, disequilibrium and disharmony of interests. This social conflict is discernible by a careful reading of the historical material. Starting with Ùthman ibn cAffan (23/643-4 to 35/655-6), Tabari's Ta'rlkh is


full of interesting accounts regarding the emergence of private estates and resurgence of individualistic consciousness to which the old concept of collectivity was yielding its place. The reaction of the old guards of the Umma, such as the famous Companion Abu. Dharr al-Ghifari (d. circa 31/652), must be related to this historical context. His reaction against 'Uthman and his discountenance of the Umayyads' economic policies, it is reasonable to suppose, were particularly in relation to their land policy.lot

Abii Dharr protested that Muslim brotherhood was funda-mentally a social and economic reality and not a mere metaphy-sical exhortation. Islam would become a shell without its core and a husk without its seed unless translated into., econo-mic terms. In strong terms he disapproved of the policy of

the Umayyads to appropriate large private estates.102 He com-plained to Mu'awiya in 30/650-651, when the latter was

changing the nomenclature of mai al-Muslimin to mai al-Allah,

a ruse to justify the appropriation of private and dynastic estates from fay' lands.103 To the question whether a rich Muslim, after paying his obligatory Zakat, was still bound to share his surplus wealth with his fellow Muslims, Abu Dharr had replied that mere payment of Zakat did not

absolve a Muslim of his duties towards other Muslims; Abil Dharr, however, failed in his protest. He was ultimately banished to Rabadha—a place outside Medina—where he

died after sometime. Further, in view of the anti-muzitraca

Hadiths, Abu Dharr's reaction cannot be regarded as a mere isolated phenomenon.

To prove his contention that the ban on muzarda - is

nothing but a reaction of the pious Muslims against the land policies of the Umayyads, PrObster cites as his evidence the rescript of Ùmar ibn 'Abd aPAziz, in which he decreed that all land with fruit trees, ardun dhatu aslin, must be given against half, or one third, or one fourth, or against any part of the crop ; and that bare land must be leased against money.106 This version of Ùmar's rescript differs materially from that

Two Versions of the Murtiraà-Iiadiths 37

which has been given by Yaby5. ibn Adam (d. 203/818),

which says :

'Umar ibn 'Abd al-'Aziz wrote to his governor in Medina Enquire about the safiya (state land) under your control

and give it on a muzara'a contract for half of the yield. But that which cannot be rented in this way, give for a third of the crop. If it has been left without cultivation, give it at a lower rate until you reach one tenth. However, if nobody wants to cultivate on these terms give it gratis. Irnobody wants it, spend on it from the Bayt

(Treasury of the Muslims), so that no land is taken out of your control. 106

The land involved here is not Ùmar's personal property but is state land which was generally leased on state muzdata. This is quite another problem which alludes to the fact that because of certain agrarian practices of the former Umayyad rulers many

state lands were abandoned which resulted in reduced revenues for the state. This policy of state-muzaraà enunciated by 'Omar II

is therefore an exception, rukhsa, and not a general rule, as Abfl 'Ubayd tells us that Ùmar II used to interpret that there was rukhsa with regard to those fay' lands which were

originally left in the hands of the former owners, and on whom land tax was imposed.107 This is also essentially associated

with the juristic theory that land tax, kharaj, was a sort of

rent of land due to the state which was its real owner. This will be further discussed in the seventh chapter. If correct;

this report concerns safiya land in the Hijaz, which was

usually leased on state-muzara'a. These variant versions of

Umar's decree, it is worth noticing, reflect conflicting juristic

viewpoints on muzdra'a and musagat which developed later.

The point here is that 'Umar II who is admitted at all hands to be one of the most pious Caliphs is represented as decreeing

lease of land on terms which had been reported to be banned

by the Sunna. This gives rise to Probster surmise that this ban was perhaps a post-factum protest of the "pious" souls who had nothing to do with reality. This is a gross


over-simplification of the facts which were highly complex and intricate. The order of 'Umar II, if understood in its proper perspective, was more in the nature of righting the policies of the former Umayyad rulers in the sphere of revenue col-

lection than instituting metayage on a new basis. 'Umar is,

in fact, reversing this fiscal policy when he declares that if

there is no tiller available to cultivate the state lands they

must be given free of any rent.105

Lokkegaard, in his study of the taxation in the classical Islamic / period which is primarily based on the conclusions of Probster, states : "It may scarcely be subjected to any real doubt that this (muniraà-theories of the Fuaah8' and their

legal devices or stratagems to circumvent the ban on

muzdraà) is only another example of purely theoretical specula-tions which have not influenced the tenancies, practised in the realm of reality. Tenancy against a fixed tent as well as

matayage has its roots far back in Babylonian times and it is

impossible to imagine that the tradition should have been

stopped by this futile pedantry."109

This is hardly a scientifically grounded concept of the relation of the jurists with the customary tenures. With a single stroke of his skeptic pen, Lokkegaard, underestimating the interpretative role of the jurists, sets at nought the most remark-able work of the Muslim jurists. We shall see that a whole structure of the Islamic land laws was formulated by them. This law in general is a jurists' law (Juristenrecht). Characterizing

Muwatta' of Malik as a book of laws, Ignaz Goldziher says,

"es 1st emit Corpus juris, kein Corpus traditionum."111

It does not mean that this law was created by Fuqahirs

idealist fancy. It is also wrong to say that they did not influence the laws of customary tenancies. We shall see that the two elements of juristic speculation-interpretation (in both

jurisprudential and sociological senses), and raw material of customary tenures,are not mutually exclusive to each other, They are rather complementary and interdependent. The jurist does not work in a vacuum, detached from the real world. His subject

Two Versions of the Muzaraà-Ifadiths 39

matter are not only the general principles of the Sharra—the ideal religious law —his immediate concerns are the social and economic relations, and the existing arrangements between land, landlord and tenant. To suppose that the Fuqahr did not influence the laws of tenancy would appear to be fanciful. The fact is that the Fugaht, in a very fundamental sense, represented the con-sensus of uniformity of practice or local ̀ aural. Their achieve-ment lies in bringing system and harmony to chaos, uncertainty and caprice of custom and status. This process which we have termed as Islamization and rationalization will be dealt with-in the eighth chapter concerning the role of these jurists in developing and elaborating the classical theory of muzdrata.

These formulations of the Fugaht were essentially based on the concept of reasonable social necessity. Actually the majority of these jurists from Malik and Shafiri onwards devel-oped a realistic attitude making necessary adjustments with the historical-social situation. In this process of Islamization the jurists not only rationalize and systematize the continuing practice but significantly mould it according to their apprehension of the situation and their interpretation and application of the general SharVa norm, We shall see that the coloni (singular, colonus, cultivator, tiller), the adscriptkii glebae (serf-tenants registered and attached to the land)—the Byzantine serfs perpetually tied to the soil; and 'Wig (singular WA tiller, worker), serfs of Persian origin—in their legal status, in theory at least, were raised by the Fugahre to the level of free tenanti with full rights and obligations. They were brought within the purview and cognizance of law. This was contrary to their more or less necessitous and precarious condition in the pm-Islamic agrarian regimes. This-view needs modification, for the existing arrangements and social conditions under which the Fugahr lived were characteristic of times when the entire superstructure of social and political regimes largely depended on the revenues and rents derived from the peasantry which formed the majority of the population. The existing social relationships and arrange-ments suited the convenience and the Rea/polltik of the land-owning ruling classes.

NOTES 40 Landlord and Peasant in Early Islam

Nevertheless, the theory based on the Sharila-principle, in a general way, adapted itself to facts and facts were in turn-modified and changed by theory. In other words, there was an interaction between the two. The change was relative to the actual situation. It would be wrong to say that the Shari`a principle merely compromized with circumstance. It would be equally wrong to suggest that these forms of tenancy simply adapted themsehes to the theory. The course of develop-ment was most probably, generally speaking, a simultaneous and reciprocal process of development, change and gradual adaptation of practice to theory and theory to practice. Ann K.S. Lambton in her study, Landlord and Peasant in Persia, observes that in the process of interaction of theory and practice with regard to Persian conditions, in the course of development, changes were brought about, but this movement was a two-fold one : on the one hand legal theory reacted upon and "influenced the development of social and economic institutions, while on the other hand Islamic theory was modified by the attitude of mind and custom prevailing in the conquered territories. The process took semetime to work out and there were many local variations. Ultimately, however, a new civilization was created, the unifying force of which was Islam,"112

Furthermore, she says that Islam has profoundly affected

the conception and development of landed property and land tenure. Water and pasture were, under the influence of the Shari'a, regarded as belonging to all Muslims in common. She also thinks that the ethic of Islam that rule is a trust from God has influenced the argicultural practices, for the political ruler was held responsible for the welfare of peasantry who constituted the majority of the people. She quotes a letter of 'Ali ibn Abi Talib (35/656-40/661) to Malik al-Ashtar, his governor in Egypt in 38/658-9, directing him to give more attention to land than to the collection of the khardj taxes.113

After these brief observations we shall now examine in more details in the second chapter the evidence of the second version of the theory of muzerrea which palpably validates all types of mitayage.

1. Carl H. Becker, Islamstudien von Werden and Wesen (2 vole ; Leipzig :

Verlag Quelle und Meyer, 1924/32) ; E. Probster, ("Privateigentum und Kollektivismbs in muhammadanischen Liegenschaftsrecht ins!).

des Maghrib", Islamica, IV, No. 29 (1931), (pp. 343-511) ; D.C.

Dennett, Conversion and the Poll-tax in Early Islam (Cambridge :

Harvard University Press, 1950) ; Frede Lokkegaard, Islamic Taxation

in the Classic Period (Copenhagen : Branner og Korch, 1950) ; Ann K.S.

Lambton, Landlord and Peasant in Persia (London : Oxford University

Press, 1953); and Werner Schmucker, Untersuchungen zu einigen wichtigen Bodenrechtlichen Konsequenzen der Islamischen Eroberungsbewegung (Bonn : Selbstverlag des Orientalischen Seminars der Universitaz Bonn,

1972).

Milhammad ibn 'Ali al-Shawkani, Play( al-Awiar (Cairo: Murtafa

al-Sabi, n d.), V, 309.

3. Ahmed ibn Hanbal, Musnad. Edited by Ahmed Muhammad Shakir

(Cairo : Dar al-Ma'arif, 1946.1956), VI, 233-34.

Also Ibn Hazm, Kitrib Edited by Muhammad Khalil Haas

(Cairo : Matba'a al-Imam, 1964), VIII, 264.

4. Ibid.

5. Abi: Bakr al-Bayhagi, al-Sunan al-Kubra (Hyderabad : Da'ira

al-Ma'arif, 1926-38), VI, 113-39.

6. Muhammad al-Khudari, Usal al-Figh (Cairo : al-Maktaba al-Tijariyya

al-Kubra, 1962), p. 236 ; Ignaz Goldziher, Muhammadanische Studien

(Halle : Max Niemeyer, 1889-90), II, 1.8 ; J. Robson, "Hadith",

Encyclopaedia of Islam (2nd. ed. Leiden : E.J. Brill, 1971), III, 23.

7. Fazlur Rahman, Islam (New York : Anchor Books, 1968 ,• originally

published by Holt, Rinehart and Winston, 1966), p. 57.

8. Joseph Schacht, The Origins of Muhammadan Jurisprudence (Oxford :

Clarendon Press, 1950), pp. 78, 162-70, 197-8.

9. Nabia Abbott, Studies in Arabic Literary Papyri (2 vols ;- Chicago: University of Chicago Press, 1957-67), II. 116, 164, 180-82.

10. Ibid., pp. 27-29.

11. J.W Fact, Bibliotheca Orientalis, X (1953), 197-98.

12. AbaJa`far Muhammad ibn Jarir al-Tabari, latith Ikhtilaf al-Fugahal,

2 vols. in one (Cairo : Matba'a al-Taraggi, 1902), pp. 117-144.

Milieux:4a (zr', to sow, till), and musligdt (sgy, to water, irrigate) are

rl 41


formed on the pattern of the verbal noun mujel'ala. Muzara'a, in the strict legal and technical sense, is a contract of sharecropping or metayage for tilling a bare, "white" land (ar4 bay4a' ), for a certain share of the crop. Musaaat is a contract involving a fruit tree (as!) for a certain share of its fruit. Henceforth throughout our discussion, if not otherwise indicated, the term muzarda will be used in a broader sense to include both musaat and lease of land for money rents.

13. Ibid., pp. 117-8.

14. Ibid., pp. 120, 122-23, 128, 133.

15. 1bn Ham, a/-Mtibizlia, VIII, 264.

16. Tabari, Ikh filaf, p. 122.

17. Aba Ja'far Ahmad ibn Muhammad al-Taltawl, Sharp Ma'ani al-Athar. Edited by Muhammad Zahri al-Najjar (Cairo : Matba'a al-Anwar al-Muhammadiya, 1968), IV. 109 ff.

18. Almost all the standard classical compilations of kladith record such primitive tenures of the genre of muhagala under the broader classifi-cation of buya', i.e., economic transactions. Following are the standard compilations : Malik ibn Anas, al-Muwatta' (Cairo : 'La al-Babl, 1951). Muhammad ibn Ismail al-Bukharl, al-✓acrd' al,Fahih (Bitlaq al-Matba'a al-Kubra al-Amiriyya, 1896-97). Sulayman ibn al-Ash'ath al-Sijistani Abu Da'ild, al-Sunan (Cairo : Maktaba al-Tijariyya, 1935). 'Abd Allah ibn 'Abd al-Rahman al-Darimi, al-Sunan (Damascus Muhammad Ahmad Dahman, 1930). Ahmad ibn Hanbal, al-Musnad (Cairo : Dar al-Ma'arif, 1946.56). Abu 'Abd Allah Muhammad ibn Yazid ibn Maja, al-Sunan (Cairo : 'Isa al-Sabi, 1952-3). Ahmad ibn Shu'ayb al-Nasa'i, al-Sunan (Cairo : Maktaba al-Tijariyya, 1937). Zayd ibn 'Ali, Musnad Zayd (Beirut : Maktaba al-klayat, 1966). Al-Bayhaqi, al-Sunan al-Kubra. Also see 'Abd al-Razzaq ibn Hammam al-San'ant al-Musannaf (Beirut : Dar al-Qalam, 1392/1972), VIII, 91-104.

19. Max Weber, Law in Economy and Society, trans. Edward Shills (1925, 2nd ed.). (Cambridge, Massachusetts: Harvard University Press, 1966). pp. 100-140.

20. Ibid., p. 100.

21. H.J.S. Maine, Ancient Law (15th ed ; London : J. Murray, 1894), p. 51.


22. Such transactions of gharar and mukhatara were banned by the econo-mic ethics of Islam according to the traditions given in the books of

Hadith. Malik gives in his Muwatta, II, P. 31, a mursal qadith which does net go further than the Successor Said ibn al-Musayyib (d. 1051723-4). Sa'id says that the Prophet banned gharar-transactions. Muslim records on the authority of 'Ubayd Allah ibn 'Omar who relates from Abu Hurayra who said that the Prophet prohibited

aleatory sales (Sahih, kitab al-buya`). Bukhari gives this Iladith on the

authority of 'Abd Allah ibn 'Umar who states that the Prophet

prohibited sale of habal al-habala, i.e., a transaction involving sale of

offspring still in the womb of the mother animal (.5sahih, kitab a!-

buya'). Bukhari further records that other similar aleatory sales, such

as munabadha (exchange of commodities by throwing to each other),

muamasa (exchange of things by mere touching), and muzabana (buying a meaure of raw fruits in exchange of dry fruit, or buying a

measure of raisins by grapes) were also prohibited.

Like Malik, Aba Hanif a considered such sales of chance and risk invalid in law, according to Muhammad ibn al-Hasan al-Shaybani,

Kitabal'ala-ahl al-Madina (Hyderabad : Ihya' al-Ma'arif, 1965),

11, 667-8. Also Abu Yasuf, Kitdb al-Kharaj (Balaq : al-Matba'a

al-Miriyya, 1884), pp. 49-50. Ahmad ibn Shu'ayb al-Nasa'i, a/-suaria

(Cairo : Maktaba al-Tijariyya 1930) in Mb al-nahy 'an kits' nfisrd bi

al-thalth wa al-rub', gives a tradition which suggests that the Prophet

forbade sales of muzabana, muhagala, mukha4ara and mukhabara. Nasal

explains that mukha4ara is a sale of fruits before they have ripened.

See also Bukhari, $ahia, kitab al-buya', and 'Abd al-Razzaq ibn

Hammam, al-Musannaf, VIII, 108-110.

23. Ibn.Manzar, Lisa)? al-'Arab (Beirut : Dar Sadir, 1955-6), V, pp. 13-14 ;

Abu Visa, Kharaj, pp. 51-52 ; and al-Thanawi, Kitdb Kashshaf Lfilahat

al-Funan (Calcutta Asiatic Society of Bengal, 1862. Reprint Tehran :

Maktaba Khiyarn, 1967), II, 1091.

24. Malik, Muwatfa', II, pp. 664-7. Schacht, Origins, pp. 146-7.

25. Malik Muwalla', II, pp. 624-7. Malik defines muzabana as "everything

of the nature of Juzaf of which no specifications are made in terms of its measure, weight or, number if exchanged for a thing which is

specified in all these qualities (Muwatta', 11, pp. 625-7).

- -

26. Muhammad ibn Mahmud ibn Muhammad al-Khwarizmi, Jam!' Maselnid

al-Imam al-A' gam (4yderabad : Da'ira al-Ma'arif, 1913.4), II, pp. 77-81.

27. Malik. Muwalloe, II, PP. 703-7.

1


28. Malik, MuwaFla', II, p. 707. Muhammad ibn Idris al-Shafi'i, Kitab al-Umm (WI Matba'a al-Kubra, 1903-7), III, p. 239

29. Muslim, .5ahilb kitab : Mb al-nahy 'an al-multagala. Bukhari, $ahih, kitab al-buya'.

30. Malik, Muwailte • II, p. 625.

31. Ibid. See also Ibn Hajar al-sAtialani, Fath al-Bari (Cairo : Mustafa al-Babl 1959), V. pp. 309 ff.

32. Ibid., V, 309, 419.

33. Livia, XI, 160.

34. Majd al-Din ibn al-Athir, Kitab al-Nihaya fi Gharib al-ZIadith we al-*Athar (Cairo : 'tea al-Babi, 1963), I, p. 416. And his Jana' Ahadith al-Russ! : Matba'a al-Ma110, 1969-72), I, PP..473-482.

35. Jaw/id 'Al!, Ta'rikh al-'Arab qab/ al-Islam (Baghdad : Matba'a al-Tafayyuff, 1950-9), VIII, pp. 224-7.

36, N. Rtiodokanakis, "Der Grundsatz der Offentlichkeit in den Sudarabischen Urkunden", Sitzungsberichte Wien, VII, No. 2, (1915), 16,17,22,.

37. Ibid., p. 17.

38. Ibid., p. 22.

39. Ibid., p. 17. Also Joseph Schacht, Introduction to Islamic Law (Oxford : Oxford University Press, 1966), p. 19.

40. Aba 'Abd Allah Muhammad ibn Valid ibn Maja, al-Sunan (Cairo : al-Babi, 1952-3), Kitab al-Statan klieg) al-ruhan. Variant versions

irrBukhari, &tigik; Muslim, $akik and Abu al,Sunan

41. Bukhari, SOO!, kitab al-buya' s kitab al-muzara'a.

42, Muslim, SOD!, kitab al-buya' : Mb kind'

43. Ibid. Also Ahmad ibn Hanbal, Musnad, IV, p. 310.

44. Bukhari, $ahilb kite* al-buyas ; Muslim, Bah% Mtab al-buya% Ibn MAja, al-Sunan, kitab abruhan.

45. Bukhari, $estilt, al-buyu'.

46. Shaybani, Muivallal Malik, version of Shaybani (Cairo : Lajna Ihyat al-Turath, 1968), bab bay' al-muzabana.


47. TahawI, Shark Ma'ani, IV, 112.

48. Muslim, Soil!, kitab al-buya` : Mb al-nahy 'an al-mukagala.

49. Tallawi, Shark.Ma'ani, IV, 112.

50. Ibn Manciir, Lisan, IV, 225.

51. Ibid.

52. According to Frede Lokkegaard (Islamic Taxation, p. 176), the word akkar (plural akara) seems to be of Sumerian origin and was used - in 'Iraq in the sense of an agriculturist. In Islamic times he was mostly a peasant with no fixed lease and was usually of a subordinate position on private estates. He was a day labourer and lessee with less favour-able contract.

53. Edward W. Lane, An Arabic-English Lexicon (London : Williams and Norgate, 1863), II, 695:

.54. Ibn al-Athir, Nihaya, 1, 280.

55. Al-Firezabadi, al-Muhit (Bulaq: Matba'a Minya, 1884), II, pp. 16-17.

56. Khwarizmi, Jana', II, pp. 77-81 ; Shafi'i, Umm, VIII, 101.

57. Al-Zurciani, Shark' Muwatia' Malik (Cairo : Mustafa al-Babi), IV, 343.

58. Ibn Harm, al-Mukalld, VIII, 254.

59, Bukhari, Sahih, kitab al-buytie ; Muslim, Sahih, kitab al-buya' ;

Abit Da'ad, al-Sunan, kite* al-buya'.

60. Muslim, Sahih, kitab al-buya'

61.

62.

63. Aba arad, al-Sunan, II, 262.

64. Ibid. In connection with the ancient system of tenures there are traditions narrated by all the famous Companions which mention various forms of pre-Islamic sales, such as muzabana and riba. Elba literally means an increase in exchange, but in the legal terminology it denotes usury or interest. Bay' or sale is a simple barter or exchange of commodities. Traditions prohibit such exchanges in general which are not equivalent in quantity and quality. "Gold for gold, silver for silver, wheat for wheat, barley for barley, dates for dates, salt for salt, the same thing for the same thing, like for like, measure for measure ; but if these things are different they will become riba, or usurious exchanges. Sell them as you please if it is done measure for measure".

Bukhari. &dill!, kitab al-buya:

Khwarizmi, /and', II, 81.


(See Bukhari, Sri/ph, kitab al-buytat ; Abu Da'fid, al-Sunan, nab al-buyd'). The compilations of Iladith record traditions of muljaqata and mukhabara along with other traditions of riba and gharar practices, clearly suggesting that the primitive tenures in which land was held in precarious tenure are just like HMI as they involve usurious exchanges. The following tradition is significant :

Abfi Da'ild records (III, 261) a Idadith Harun ibn 'Abd Allah al-Fadl lbn Dukayn-Bukayr {(ibn 'Amir)-Ion Abi INIPam-RafP ibn Khadij says tint one day he was cultivating a land. While he was busy irrigating it, the Prophet passed by and asked him who the owners of the land were. He replied that it was a deal of share-cropping in which be had invested his labour and seed. For that he would take one half of the crop, the other half would go to the land owner. Upon this the Prophet said that in that case their deal would tantamount to a riba or usurious transaction (arbayturna). He asked him to return the land to its owner and take back all his investments (from the land owner).

65. Shaft% al.Risala, edited by Ahmed Muhammad Shakir

(Cairo : Mustafa al-Babi, 1940), pp, 445-46. Ahmed Ibn Hanbal, Musnad. VI, pp. 233-34.

66. Taljawi, Shari, Waal, IV, 109.

67. For instance, Bukhari, ,Fahilb and Muslim, .6ahilb give a tradition of Rafi' ibn Khadij where Rafi' says that in Medina, where agriculture was common, people used to lease lands against a certain produce and herbiage on some areas of the fields which were reserved for landlords

and tenants respectively. Sometimes the crop on one area would suffer, and sometimes on the other. This was therefore prohibited by the Prophet. As far as money is concerned, it was not used in these tenures.

Such traditions define indeterminate mukhabara in terms of primitive tenures which were characterized by the element of extreme risk and chance. See the tradition of Jabir ibn 'Abd Allah in Muslim,

.Fahih, which identifies muhaqala with such tenures.

68. Tahawl, Sharh Milani, IV, pp. 108, III.

69. Jawad 'All, Tr' riktt al-`Arab, VIII, 226.

70. Maurice Gaudefroy-Demombynes, Mahomet (Paris : Albin Michel, 1957), pp. 595-6.

71. Tahawl, Mushki! al-Athar (Hyderabad Da'ira al-Ma'arif, 1914), III, p. 293 ; Zurqatd, Shari? Muwaffa', IV, 343.

Two Versions of the Muzara`a-Hadiths 47

72. Malik, Milwalla', II, p. 707 ; Shafil, Utnm, VII, pp. 101-102. Zurciani, Sharh Muwatta', IV, pp. 356-8.

73. Tabari, Ikhtilaf, pp. 120, 124.

74. Sometimes a distinction is made between mukhabara and muzara'a. The former is interpreted as a land lease in which seed is provided by

the tenant, whereas in the latter it is usually given by the landlord

(lbn Hajar, Fan:, V, p. 409). According to Lokkegaard, in a type of mukhabara-tenaney, the landlord provides draught animals, implements and seed and the conditions of the tenant are proportionately less re-munerative. A similar agreement, he says, is mubadhara. He thinks that on State/ lands (in Islamic times) subsidies in the form of seed were usually given on the leased lands. On the private tenancies the lessee might be paid a mere sixth or seventh part of the produce.

(Taxation, P. 175).

75. Khwarizmi, Jana' Masanid, It, p. 81.

76. Tahavvi, Mushkil, III, pp. 286, 290 ; Sharh Want, IV, pp. 112

77. Bukhari; .5'ahik, kite* al-buyal.

78. Rafi' appears to be the chief figure in most of the anti-muzarda Idadiths. He belonged to an agriculturist family of the tvledinese clan of Khazraj, and was a notable personality. He was probably born twelve years before Hijta. He was a boy of 13 or 14 years of age at the battle of Badr when he was rejected by the Prophet for his young age. Later at the battle of Uhud, he was allowed to fight. He was a young man of 22 when the Prophet died, it is reported that Ibn Timer was con-temporarily also living in Medina where Ibn Khadij was living, as a respected old Companion of the Prophet. Ibn 'Umar led his funeral prayers when Rafi' died in the year 74. Ibn Hajar al= flsgaiani, Kitab al-Inaba „CI Tamyiz abFahaba (Cairo : al-Maktaba al-Tijariyya al- kubra, 1939), I, pp. 433-4. 'Izz al-Din, Ibn Usd al-Ghaba fi Ma'rifa al-.S.ahaba (Cairo : Jam'iyya al-Malarif, 1368-9), II, 151.

79. Bukhari, kited, al-buya' ; Muslim, .Fahlh, kitab al-buyti' t

80. Muslim, Ibid.

81. Muslim, Ibid.

82. Ibid. Another variant in Bukhari, Sahib, kitab

83. Banda, $ahih, kitab al-buyu'. Muslim; .5ahih, kilt* al-ijara.

84: Muslim, 5ahih, kitab

85. Ibid.

48 Landlord and Peasant in Early

86. Ibn Harm al-Muriallel, VIII, 246.

87. Bukhari, Sahih, kitab al-muzarda : Muslim, Sahib, kitab al-buya' ; Abil al-Sunan, III, pp. 257, 259-261.

88. Ibid.

89. Bukhdri, Sahih, kitab al-ijara.

90. See pp. 35 ff.

91. Ia.% considered muzarda and determinate mukhabara legal on the authority of Ibn 'Abbas, who held that the Prophet had not banned matayage but had rather suggested that it was better that a Muslim should lend his Muslim brother his land free than that he should charge him any fixed rent (kharj mdlam) (Bukhari, Sahih, kitab a!-muzara'a). But Ta'as reprehended lease of land against money (Nasa'i, al-Sunan, kitab al-buya`). Mujahid opposed him on this point

92. Ibn Sage], Kitab al-Tabaqat al-kabir (Beirut : Dar Sadie, 1957.60). V. pp. 467-8, 540.

93. Ibn Harm, al-Muha//4-, VIII, 247.

94. Nasa'i, al-Sunan, kite. b al-buy:; ; Ibn Hajar, Fath, V, 408. 95. Ibn Hann, al-Muhalla, VIII. 24'

96. Ibid.

97. Ibn Hajar, Kitab Tandhib al-Tandhib (Beirut: Dar Sadir, 1968), VIII, 812

98. An DaSid, al-Sunan, kitab al-buyacln, 261.

99. E. Probster, "Privateigentum and Kollektivismus im muhammadanischen Liegenschaftsrecht, insb de Maghrib", Islamica (Leipzig); IV, 1931 (29), p. 391.

100. Qur'an : II : 275-8 ; III : 130 ; IV : 161 ; XXX : 39.

101. Tabari records [Ta'rikh al-Rusu/ wa al-Mulak. Edited M. J. de Goeje; (Leiden : E. J. Brill, 1879.1901), V. p. 2861] a tradition from Jabir which suggests that in 30/650-651, Abu Dharr and Ran' ibn Khadij abandoned Medina. They left Medina after they had heard something which was not explained to them. They both were not given good treat-ment. This association of Rafi's name with that of Abu Dharr, It may be assumed, has deeper significance. Rafi' was perhaps protesting against recrudescence of metayage.

102. In recent times literature on Abil Dharr al-Ghifari has proliferated and his personality has suddenly become enormously popular throughout

Two Versions of the Muzeirterz Hadiths 49

the Islamic world. The socialists and communists see in him a forerunner of 'Islamic" or "Arab" socialism. On the other hand, the right wing orthodox Muslims take him as a precursor of "Islamic

economic system", which, according to them, in Many welfare aspects

is quite unique and different from the economic systems of capitalism, socialism and communism. See articles on Atha Dharr by J. Robson

in Encyclopaedia of Islam, second edition (Leiden : E. J. Brill, 1960),

1, pp. 114-5 ;, and by M. th. Houtsma, ibid., first ed. 1913, I, p. 83.

For detailed information see :

Najm al-Hasan al-Kararavi, al-Ghtlari (Urdu), (Lahore :

Maktaba lmamiyya, 1963). 'Abd al-Hamid Judah al-Sahhar,

Abu Dhaer al-Ghjfari, al-Isharaki al-Zahid (Cairo : Dar al-Hilal,

1966). Nasir al-Din 'Ali, Abu Dharr Ghifari, second ed. (Beirut :

Dar Maktaba al-Hayat, 1967). Salah 'Azzam, Shahid al-Kalima

Aba Dharr al-Ghijari (Cairo : al-Dar al-Qawmiyya, 1966).

Muhammad Jalal Kishk, Aba Dharr wa al-haqq al-murr (Beirut.:

Dar al-Irshad, 1969). Mahmhd Shalabi, Ishtirakiyya Aba Dharr

(Beirut : Dar al-111, 1974). A. J. Cameron, Aba Dharr

an examination of his image in the hagiography of Islam

(Laudon: The Royal Asiatic Society, 1973).

103. Tabari, Tdrikh, V, 2858-2860.

104. Ibid., 2860-1.

105. The full text of his rescript is as follows :

'Uthman ibn Muhammad ibn Suwayd al-Thaqafi relates from 'Umar ibn 'Abd al-'Aziz that while he was governor of Tall during the Caliphate of 'Umar II, the latter wrote to him,concerning transaction of fruit and lease of land-that all land bearing fruit trees must be given against a certain part of its fruit, one half, one third or one fourth, or against any part of the crop to which the tenants might agree. "White" land (biya4) which had no fruit trees must be leased against money.

Sahnlm iba Said, Mudawwana al-Kubra (Cairo : Matba'a al-Khayriyya,

1906), IV, p. 2. Probster, p. 391.

106. Yahya ibn Adam, Kitab al-Kharaj, edited by Th. Juynboll (Leiden :

E. J. Brill, 1896), pp. 44-5. English translation by Ben A. Shemesh,

Taxation in Islam (Leiden : E. J. Brill, 1965-9), p. 53.

107. Abii 'Ubayd al-Qasim ibn Sallam, Kitab al-Amwal. Ed. Muhammad

kumid al-Fiqqi (Cairo : Maktaba al-Tijariyya al-Kubra, 1934), pp.

69, 84 ff.

108. H. A. R. Gibb, "The Fiscal Rescript of 'Umar II", Arabica (Leiden :

E. J. Brill), 2 (1955), pp. 1-16.

SO Landlord and Peasant in Early Islam

109. Lokkegaard, Taxation, p. 174.

110. Max Weber, Law in Economy and Society, p. 240. 111. Ignaz Cio!daffier, Muhammadanische Studien, II, p. 213. 112. Ann K. S. Lambton. Landlord and Peasant in Persia, p. 16. 113. Ibid. Also see Nahj al-Bald:ha, commentary by mun, ammad 'Abduh,

(Beirut : Maktaba al-Andalus, 1954), IV, pp. 21-34.

CHAPTER II

ANALYSIS AND CRITIQUE OF

P RO-MUZARA`,4 11/1.D./THS

The Problem of Khaybar

We have seen in the first chapter in detail the theory of

primitive tenures and the isneid evidence for the anti-muzarda

and anti-lease of land Hadiths. We also discussed in brief the

important role of the jurists in systematizing and Islamizing the customary forms of tenancy, and the mutual interrelationship of juristic speculation and interpretation with the raw material of the customary tenures embedded in the existing socio-economic relations and arrangements. In this chapter we shall examine

and analyse the evidence of the pro-muzara'a version to which

we alluded very briefly in the previous chapter. We shall also discuss in detail the problem of Khaybar and bring out its relationship with the theory of primitive tenures. The arguments

of the pro-manta version are based on three kinds of

evidence :

1. Evidence deduced from the pre-Islamic customary tenures, which we have already examined in the last chapter.

2. Evidence drawn from the event of Khaybar (7/628-9).

3. Evidence deduced from the pro-muzara'a

According to the last category of evidence, the proponents of the pro-muzdra'a point of view claim that the Prophet had

allowed lease of land and muzara'a—both against a fixed sum of

money, and against a share of the crop or anything else. It is also assumed that this system was allowed and practised by many Companions and Successors. It is sometimes interpreted

as a rule and sometimes as a rukhsa, i.e., exception to the general

rule of ban on muzara'a, for the purpose of social necessity.'

'We shall presently examine in detail the problem of Khaybar


which is the essence of their whole conceptualization. We shall also discuss the evidence of Hadith related to it.

All the arguments elaborated by these Fugahr in this con-nection are systematic and coherent in logic , consistent in their analogical method, and apparently compatible with the broad principles and propositions of legal theory. Nevertheless, as we shall attempt to show, their hypotheses, premises and general conclusions represent an incessant effort at rationalization of emerging economic necessity in terms of the ideals of the Sharra. The new necessities ruthlessly pressed upon the minds of the Fuqahr . How can the agrarian practices and concepts arising out of the new context of vastly extended territories be explained in positive Islamic terms? What is the relation of the per-Islamic tenancies of the klijaz, of Syria, Egypt and Persia to the economic ideals of the SharPa ? How can all these different elements be reconciled in a unified structure ? What aberrant factors can be ablated from the body of this system ? These were the basic questions which lay at the root of the tension created by the over-extension and expansion of the Umma. This tension between the actual, concrete, and ordinary business of economic life and religious immutability, between realism and idealism, was the problem which these jurists faced and made persistent efforts to resolve. This brings us to the central problem of Khaybar.

Khaybar was an oasis town in Arabia which was conquered by the Muslims led by the Prophet in 7/628-9. The jurists claim that after its conquest its tillers were reduced to the status of tenants, and the famous Contract of Mteamala was concluded with them, according to which they were allowed to continue tillage of the land for half of its produce. This historical deal of Khaybar, so argue the Fuqahier explains the obscure nature of the primitive tenures, brings out the facts in full relief, and ultimately provides legitimacy to their concept of muzarrea. The Fuqahir employ a remarkably rich repertory of terms in connection with this Contract, some of which we have already examined. The terms are : muzara`a, musagat, mukhabara, mucamala, mugelaama, mugelEa'a, mu' ajara, isti'jar, mu'akara, kira'

Analysis and Critique of Pro-Muzara'a Idadiths 53

al-ard, mu'awama, musahama, qabala, musharaka fi al-muzara'a,

mu'amala fs al-thimar and mugharasa etc.2 Both the concept and

the term of mu'amala are fundamental formulations of the

Fugahre which in a general sense subsume and comprehend under

this category all other terms ; it seems to be the earliest term

used in this connection.

This Contract, according to the jurists, is coterminous with their theory of primitive tenures and occupies a pivotal position

in the whole development of the theory of muzara'a. In this

section we will examine the following questions : What was the nature of the Contract of Khaybar ? Did it constitute a

contract of muzara'almusagat What was the status of the

Jewish farmers on this land ? Was this a case of simple tribute or that of rent or lease of land ? How and why do the Fugahr

relate this particular deal to their conception of primitive tenures ? What were their variant explanations and conclusions? How did these postulates affect the subsequent development of

their general theory of muzaia`a ? The Fuqaher try to explain

this event from the respective vantage points they have formed regarding the ancient tenures. It must be realized at the outset that the solution of the problem of the exact nature of the Contract of Khaybar is beset with great difficulty for lack of adequate evidence. Even in the early sources the subject is much controverted. It is difficult to say with certainty whether

it was of the nature of a metayage or lease of land, or a mere

tribute. The whole problem has been coloured by the desire of

the Fuqaha' to cling fast to their own systems of legal thought. They have a strong tendency to shift concepts and ideas from one plane to another without referring to the historical context : they make too broad generalizations of the problem. Ibn Hazm tells us that this difficult problem has even baffled such eminent

Fuqahr as Abu klanifa, Malik and Shafi'i.3

Three years before the conquest of Khaybar, the Prophet

took over the lands of Band Nadir in Medina in 4/625-6, these

being the first extensive lands captured by the Muslims after the

conquest of Band Qaytmq5.` in 2/623-4.4 There was no clear-cut


and elaborate precedent as to pow to dispose of booty of land except the case of Badr, where one fifth of booty was set apart for the Prophet's expenses, for his relations, orphans, poor and way-farers. The remaining four-fifth was divided among the fighters.5 The booty of Badr did not include land. The policy in relation to the Bana Nadir marks the first important step. So far as lands were concerned they were mostly left undivided as fay' of the Muslims, according to which theory the conquered land as far as distribution of food shares was concerned, was a common property, or a waqf (mostmain) for the benefit of all. According to the Qur'an (LIX-6) the land of the Battu Nadir was not divided because it had not been conquered by the Muslims "after driving their horses and camels". This fay' land was thus at the disposal of the Prophet in a special way. This will be discussed again in the third chapter. Abu 'Vasil!' explicity states that according to the Qur'anic verses (LIX, 7-10) which were revealed on this occasion, these lands belonged to the Muslims who are mentioned in these verses and were not distributed among individual Muslims.6 Indeed, whenever the Prophet conquered any of these lands, i.e., qurei Àrabiya, he left them undivided except the land of Khaybar which was presum-ably distributed among the Muslims? -

It seems therefore that in the early phase of the Unarm, the agricultural land acquired through conquest belonged to Muslims

as a whole, in the sense that it was administered by the Prophet for the common good. This became a fundamental principle of social policy and it was further developed by Ùmar I after the Great Conquests. All rights to the newly acquired lands vested in the Umma. This concept found its logical culmin-ation in the theory of collective fay' of the Muslims (fay'al-Muslimin) which will be examined in detail in the third chapter. The relationship of an individual cultivator to the land, in the initial stages of Islam's social development, was more or less akin to the status of an individual within a tribe where the land is a common source of subsistence and, therefore,belongs to the whole tribe. The fundamental change that took place was that the place of the tribe was taken over by the religiously organized

Analysis and Critique of Pro-Murtlraà kladiths 55

Umma. An individual Muslim, therefore, could claim only the

rights of usufr,uct (manfaà). This falls short of a full ownership

in the modern Sense of the term.

Traditions about Khaybar, which was conquered three years after the capture of the Banii Nadir, and the disposal of its land, are conflicting, but it is certain that the Prophet used his own judgment for ameliorating the conditions of Muslims by produc-

ing ad hoc economic solutions.8 We have now to modify our

general statement that all new land was held in common. The

concept of common fay' land does not completely rule out the possibility of private ownership of land, but this concept of individual ownership of land was not well developed in the first stage. It could only develop at later stages when many diverse elements of political and economic nature went into the Islamic

scheme.

Be this as it may, Khaybar consisted of seven strongholds,

many corn fields and palm groves. They were : Naìm, AMI al-Jluqayq, Shiqq, Natat, Watilj, Sulalim and Katiba.9

Ibn Hisham (d. 213/828-9) says that when Watil) and Sulalim were besieged after the fall of other strongholds, the inmate's of the former sued for peace.10 According to Waqidi, Katiba, Sulalim and Watib were taken peacefully whereas other places

were taken after a bitter fight. The lands of Shiqq and Natat were therefore divided among the Muslims ; Katiba was preserv-

ed as a khums (one-fifth) for God and the Prophet, for the poor and the orphans etc. and for the food shares of his family. The people of Watih and Sulalim entered into the agricultural

contract with the Prophet.11 Ibn Hisham,12 Tabari,13 Abu

tbayd,14 Abu Yusuf,15 Ahmad ibn klanba1,16 Waqid1,17 Ibn

Sacci,18 and Abu Da'ado—all report that Khaybar was)dfay' of the Muslims, but they also give variant reports as to how these lands were disposed of. However, the general purport of all the reports is that, as Waqidi and Abfi Ùbayd emphasize, the Jewish

peasants, after having lost all their lands had virtually become workers tilling the soil, and further that these lands were not individually divided among the Muslims..


Tabari gives a tradition from Ibn Isbfiq (d. 151/768-9) who bad asked Ibn Shihab al-Zuhri (d. 124/741-2) about the con-ditions and nature of the Prophet's granting of the date-palms to the farmers of Khaybar : Were these given to them against a certain part of the produce (i.e., on muetra'almustlett), or were they given to them for some other reason ? Zuhri told him that the Prophet had taken Khaybar by force of arms after fighting, and it was thus a fay' of the Muslims. The Prophet took out a khums and distributed the remaining land among the Muslims. The Jewish farmers were about to be exiled when the Prophet

called them and said that if they wished he could hand over the

lands to them on the condition that they would till the soil and the fruit would be shared equally between them and the Muslims. They accepted it and continued cultivating the land till the demise of the Prophet. Abii Bakr and Ùmar I confirmed them on the land. Ùmar, however, exiled them after he had investigated a bequest of the Prophet which suggested that no two religions could co-exist in the Arabian Peninsula. He expelled those who did not possess any agreement from the Prophet.20

Yabya ibn Adam records that Khaybar was taken after fighting, that is, it was an lanwa-fay', and that it was divided among the Muslims.21 This explanation is coloured by a certain point of view which tries to justify a particular land theory seemingly to resolve doubt created by a phase of social change which came after the Great Conquests.

Abu 'Ubayd (d. 224/837) says that Khaybar was. taken 'anwatan (by force of arms), and after taking out a khums it was divided among the Muslims. In theory, he says, such a land is subject to two options : it may be divided as booty or ghanima among the Muslim combatants, or it may be declared a waqf (mortmain, public trust) for common good of the Muslims as 'Umar I did in Sawad (lower 'Iraq). The Prophet made in Khaybar thirty six lots, each lot of hundred shares, half of which belonged to his family and other half to the Muslims. Only

Stagg and Natat were divided, while Katiba, Watib, and Sulalini were made wave.22 Abu 'Ubayd is here reflecting the land

Analysis and Critique of Pro-Murtira'a Ijadiths 57

theory of Shafi'i which proposes that a land conquered by force

is, by discretion of thalmdm (or public authority) either divided among the fighters or made a waqf if the fighters give up their

individual claims.23 The division of Khaybar is attributed 'to Ùmar I. Baladhur124 and Abu ‘Ubayd23 report that when the

lands came into the hands of the Prophet he faced a problem as there were no tillers with him who could cultivate the lands. "So he gave them to the Jews to work for half of the produce—when

under tmar the MusliniS acquired many tillers and they became efficient in the art of agriculture, he exiled them to Syria and

divided the land among the Muslims."

There are other highly significant traditions in this connec-tion. The people of Fadak, who had made agreement for half of their date-palms and half of their land, were also exiled by Ùmar but were paid compensation.26 This may be explained by the fact that the land of Khaybar was mainly a fay' of the Muslims and meant for their common good. Shaybani quotes Abu Hanifa to the effect that Khaybar was not divided by the Prophet, it was rather held in common (innama kruzat fawdd). The person who divided it was Ùmar I.22 Another explanation is that probably this was due to certain political reasons :,the Jews of Khaybar were not trusted by Ùmar, they were therefore exiled by him although they had entered into a suite treaty with the Prophet.

Our sources also reveal that the Prophet distributed the food shares "of wheat, barley, date and date-stones according to the needs of the people ; the needs of the Banii Muttalib were the

greatest of all, they were therefore given the largest shares. And Khaybar was divided among the people who had participated in ljudaybiya."23 Waqidi gives a detailed list of the people who received the food shares from Natat and Shiqq, called (Om (food) which Ibn Isbaq calls i'fie (food grant).29 "Then the Prophet divided al-Katiba, which was a special valley, among his near kinsmen and his wives, and among the Muslims and (their) women ; he apportioned for his daughter, Fatima, two hundred camel loads, for 'Ali one hundred camel loads, for Usima ibn Zayd two hundred, and so on..."30


The sources clearly state that this division in the main related to food shares and not to pieces of land, as it is generally thought. At the same time the sources also make it clear that before this expedition Muslims in general were very poor. Many who came to the Prophet to accompany him to the battle complained about their acute poverty, saying that they were not able to participate properly in the war as they had nothing to wear and nothing to eat, not to speak of weapons to fight

with. Many were under debts to rich Jews of Medina.31 The theory of division of land, in view of the general poverty; must be ruled out, as the efforts of the Prophet in the first place were aimed at removing poverty from the Umma. The division of land by 'Omar will again be discussed in the fifth chapter with reference to his land policy in general. It must also be noted that the report, which says that the Prophet gave a piece of land (qatra) to al-Zubayr32 from the land of Khaybar, has been doubted by Abu Ùbayd.33 He says that a qa(ià could only be granted from a "dead" or uncultivated land : a land containing date-palms could not be given as a private estate. "I do not know", says Abd Ùbayd, "any other grant of land (iW') containing date-palms, or any other fruit tree.”34

All in all, then, it is not very clear how these lands were

disposed of, for there is lack of clear-cut and conclusive evidence

to make any certain conclusions. The reports are highly con-

tradictory, and the reports which suggest that these lands were

evidently divided give the impression that they belong to a

later period when certain legal positions tended to be supported , by divergent reports. What can be said with certainty is that

all the moveable goods and food shares were distributed for

immediate consumption of the needy people : these were taken

from Hata and Shiqq. Other places were declared waqf for good of all Muslims. The most conspicuous deal was done at Katiba and Watib which were waqf.35 Baladhuri, on the other hand, also records that Khaybar was conquered by sulk (peace agreement), after it was besieged by the Prophet for about a

Analysis and Critique of Pro-Muzarda Hadiths 59

month. Afterwards, when Ùmar I exiled the Jews he divided the lands (raqabat *aril) among those Muslims who had shares

(asheitn) in it. Baladhuri also quotes Zuhri who says that Khaybar was taken after fighting. His own view, it appears, is that Katiba and Sulalim were waqf and Shiqq and Natat were

divided.36 It should also be noted in passing that one of the earliest waq fs reported to have been established in Islam was in Khaybar by Ùmar.37

On the basis of the foregoing we are in a position to make some tentative conclusions : first, the farmers of Khaybar employed by the Muslims to till the lands, were landless agri-culturists. They were conquered people and had become semi-serfs and labourers. They were loft to cultivate the land.

This land was mainly a waqf, collective or public property. The formation of waqfs was also encouraged, as the case of Òmar I shows, on lands which were not collective property.

Second, the share of the 'Muslims in the deal was a special kind of tribute, or more precisely, a quasi-tribute which was consistent with the old 'Arab custom according to which subdued people of oases were compelled to pay a share of their entire production. This would ultimately reduce the tillers to the status of mere serfs bound to the soil. They were not slaves but serfs tied to the land. They had their freedom as far as enjoyment of usufruct was concerned.

In this context must be seen Shaybani's interpretation of

the deal of Khaybar. Though they had become dhitninf

serfs, yet the possibility cannot be ruled out that an agreement

or treaty (musalaba) could be made with them. Their status

was not like that of a slave who could be bought and sold.

This seems to be the reason why Shaybfini says that they

were the people of mulhada or agreement ; and further that

wealth and stock (amwtil) were not lawful for the Muslims

except with their own consent. Shaybani cites a tradition

which says that when after the conclusion of the Contract


the Khaybarites complained that some of the Muslims had entered into their fields and had taken away some vegetables, the Prophet declared that it was not legal for the Muslims to take hold of the wealth of the mu'ahadin (the people who had entered into an agreement), .except which was lawful by right (i114 bihaqqin).38

This proves that the right to usufruct of the land of Khaybar clearly belonged to the Khaybarites ; crops and fruits were their own property. "There was an `and (agreement) between them and the Muslims. It was not legal for the Muslims (laysa yuhillu lahum) to take anything which belonged to these farmers except with their own consent (big!, anfusihim). This agreement had stipulated that the property of these people was as inviolable as that of the Muslims."39 This agricultural Contract with them was later interpreted by the Fuqaha' as a case of state-muzarda, in which land primarily belongs to the

state, and the tenants working on it pay to the state hire price ('ujra) for using land as usufructuaries. This will be further discussed in the seventh chapter.

Third, the Muslims were assigned food shares (beam) and not land assignments on a large scale. This accords with the fact that at that time Muslims were generally poor, as Wagidi explicitly states. This fact, and the other evidence for de-claring lands as collective waq f or sadaqa (charitable or public property for all) together with the concept of a close and limited Umma, make the theory of private land distribution an improbability. This theory seems to be a projection of a later development back to the early period ; and in relation to the theory of muzarda, it represents another rationalization of the later period.

Fourth, there is however a possibility, as some reports do suggest, that some assignments of :Or were made. These were given only from the category of mawat or "dead" lands, and mostly to people who could afford to develop and invest in clearing and bringing "dead" lands to life. But the wholesale

Analysis and Critique of Pro-Muzara'a Iladiths 61

grant of iqtel` from mawat lands was started under the Umayyads,

and also under ‘Uthmain.40

Coming now to modern scholars, they also offer different

interpretations of the Status of the Jewish tillers. Hartwig Hirschfeld says that the Jews of Watib and Sulalim were forced

to abandonner leurs terres aux vanqueurs. Toutefois, comme ils

etainent de meilieurs agriculteurs que les musulmens, ils purent

continuer a cultiver ces terres a la condttion de remettre a leurs

maitres la moitie de la recolte.41 He concludes that the Jews

became workers, as they had lost their lands to the Muslims. They were allowed to till as they were better agriculturists than the Muslims, the condition being that they would give to their

masters one half of their produce. He also says that like Khaybar, the lands of Tayme, Fadak and Wadi al-gura all became lands of the Muslims.42

Van Berchem says that the position of the Jews was similar

to that of the coloni, the serf-tenants of the Roman Empire

who were attached to the soil.43 Adolph Grohmann thinks

that the Jews had lost all their lands and were allowed to work

on the fields' as ,hired tiller's:44 David Santillana says that the

Jewish peasants were compelled to pay the tribute but they

were not serfs bound to the soil. "Qusto compenso P rappre-

sentato da un tributo unico dovuto dagl 'infedeli, imposta

personale e fondiariu ad un tempo, che, sotto name di "harag" o di

"gizya" (i due termini sono in origine equivalents), comprende

tanto 1, imposta sui terreni clue poi sara detta "harag" quanta la

tassa personale o capitazione detta "gizya." 45

According to Leone Caetani the Khaybarites were free land owners with whom the Prophet made a corrisposta di

affitto o colonia (mulmalah).46 Abfi Mawdudi thinks that the Jews were free but landless tenants (Stayers) and that

half of the land of Khaybar actually belonged to individual Muslims as their private property and other half belonged to the Islamic state.47 According to A. Fetal, the payment of half of the crop by the Jews constituted kharaj muqasama (land-tax as a certain share of the crop), redevance proportionnelle en nature

sur les produits du sol et de I' industrie (Khaibar, Fadak, Wads


al-Qura, Magna). Cette imposition Is est pas considirde comme tat jizya par les auteurs Musulmans. C' es, en retina un kharaj mugasama. La formule est cella du colonat partiaire, perpdtuelle-ment revocable au grO du bailleur.48 Werner Schmucker holds that Khaybar was taken after fighting. This was the beginning of what he calls Verteilungspolitik, that is, the lands were divided among the Muslim conquerors. The Khaybarites continued filling the land after the Mu'ama/a-agreement.49

Hadith-Evidence and Theories of the Fugaha'

Following are the chief authoritative Iladiths which are the mainstay and locus classicus of the justification for the doctrine of muzitra'a among the Fugaha'. They have been recorded in the $alfilts of Bukhari and Muslim and other stan-dard compilations of 4adith.50

(a) Ibrahim ibn al-Mundhir-Anas ibn Ìyatl-tbayd Allah ibn tmar-Nafig-Ibn Òmar says that the Prophet made an economic transaction with the farmers of Khaybar (''amala ahla Khaybar), with the stipulation that they would pay half of the produce of grain and fruit.51

(b) Musa ibn Ismail-Juwayriyya (Asma')-1■15,fi'-Àbd Allah ibn Òmar says that the Prophet gave Khaybar to the Jews on the condition that they would cultivate it and

work on it, and would get half of the produce.52

(c) Ibn Rumb-al-Layth ibn Sed-Muhammad ibn Àbd al-Rabman-Nafic-Ibn tmar says that the Prophet gave to the Jews of Khaybar the date-palms and land of Khaybar, that they would cultivate it with their own capital and would pay to the Prophet half of the produce.53

(d) Muhammad ibn BM' -Àbd al-Razzaq-Ibn Jurayj-Musa ibn tqba-NaficIbn tmar says that when the

Prophet had conquered Khaybar, he wanted to expel the Jews from the land. They, asked him to let them

Analysis and Critique of Pro-Muzara'a liadiths 63

stay on the land on the condition that they would

cultivate it and would retain half of the produce for themseIves. The Prophet approved of this and said, "we shall, as long as we wish, let you stay on the land". They were thus allowed to stay till the time of tmar I who exiled them.54

(e) There are several other traditions, having the same connotation, recorded in the books of liadith, for

example, . . . . Ibn 'Abbas says that the Prophet gave the lands and date-plams of Khaybar for half of the produce.55

The I:lacliths, and in particular Ibn tmar's Hadith (a),

are the main prop of those who justify contracts of muzarabal

musagat and determinate mukhabara on the assumption that the Prophet had confirmed these contracts by his deal at

Khaybar, and that this had continued throughout the Caliphates of Abu Bakr and tmar till the latter expelled the Jews from these lands, and that this period was spread over fifteen years.56

from this the jurists deduce, says Ibn Hajar, the legitimacy of

musagat-contract in date-palms, vineyards and other fruit bearing frees against a stipulated known share for the tenants. According to him, this is the opinion of the generality of the

Fugaha' (al-jumhar). The raison d'être for its validity for them is its being a contract in which the tenant contributes his labour and works on the capital supplied by the landlord—on the analogy of muciaraba, sleeping partnership in business,

in which a worker employs capital advanced by a capital owner for a certain share of the profit which is yet non-existent and

unknown.57

Malik, in his Muwa4a', gives under the chapter of kitab

al-musagat two-traditions from which he derives his doctrine of

musagat. These two traditions are related by the Medinese

Successors, Saìd ibn al-Musayyib (d.105i723-4) and Sulayman ibn Yasar (d.107 or 109/727-8) :

(a) Yabya-Malik-Ibn Shihab-Saild says that the Prophet, when he had conquered Khaybar, said to the Jews :


"I keep you on the land on which God has kept you, on the condition that the fruit will be equally shared between you and us". Saìd says that the Prophet used to send Àbd Allah ibn Rawaha to assess the shares of the Prophet and the Jews. After the assess-ment he used to say to them, "if you wish, this share is for you and the other half for us". They used to accept this division.58

(b) Malik-Ibn Shihab-Sulayman ibn Yasar says that the Prophet used to send ibn Rawaha to Khaybar to assess and apportion the produce between the Jews and the Prophet. They collected for Ibn Rawaha some ornaments of their women and said to him that the

• ornaments would be his if he could manipulate a reduced estimate and ignore some part of the share. Ibn Rawalja

said to them : "0 group of the Jews, you are verily the most despicable creatures to me. But that hatred will not overwhelm me to oppress you. As regards your presentation of bribery, it is unlawful and forbidden (in Islam), and we do not take it." They then said, "on this equity stand the Heavens and the Earth".59

According to Ibn Àbd al-Barr (d.338/949-950), the first tradition is found mursal, that is, lacking the first transmitter in all the transmissions of the Muivatta', in most of thenarra-tions of Ibn Shihab's contemporaries. A group of scholars has connected this narration to the Prophet through Sfilih ibn Abi al-Akhdar and Abu Hurayra has been added as the first transmitter.88 Qacli Ìyad (d.544/1149) was of the opinion that the context of the speech in Saìd's narration does not imply that it is a contract (àqd) of (musaqat). Moreover, there is ambiguity in the contract as no definition of shares is given, and a vague type of contract is not valid in law. The stipulated shares may naturally decrease or increase as they are not cer-tain.61 Ibn Àbd al-Barr also points out that takhrtse (assessment) of the standing crop in musdqat is not valid accord-ing to the consensus of all the scholars, because partners in musdqat are legal claimants to the stipulated shares. These

Analysis and Critique of Pro-Muzarda Hadiths 65

shares cannot be accurately apportioned unless fruits have actually ripened and become saleable, otherwise this would

amount to a sale of illegal muzabana.63

According to Zurqani, again, the second kladith given by

Malik is also found mursal in all the transmissions of Mum:We,

while Abfi Da'ild and Ibn Maja have described this kladtth as

muttasil, is e., with an isnitd connecting to the highest

authority:54

It is highly significant that Malik derives his doctrine of

musaqat from the deal of Khaybar basing it on two mursal

Hadiths, whereas he does not deduce his other related theory

of kira' al-ard, or money-rent from the evidence of Khaybar

but gives it on the basis of his own interpretation of the primitive tenancies in terms of monetary propositions. It seems that Malik perceived the significance of the ancient tenures in the context

of a "natural" economy, in which, as we observed 'before, money as medium of exchange was not much developed as to

entail rights and obligations of tenant and landlord in definitive and unambiguous terms. It is, therefore, as man conceives of

it, paramount from the legal 'point of view to allow land lease against a solid and imperishable medium of exchange which can act as an accurate standard of measure and which does away with the element of uncertainty. It means that the task of the law of tenure is basically to satisfy human needs and wants in the necessary framework of contractual relationships. This is a very important contribution of Malik in the sphere of economic jurisprudence of Islam which has not been properly evaluated by the Islamicists. This important theory which lies at the core of the development of the classical theory of

muzeirda will be studied in detail in the eighth chapter. It must, however, be stated here that Malik records under the

chapter of kira' al-ard, five Hadiths which indicate that Rafi` ibn

Khadij, 'Abd al-Rahman ibn 'Awl, Sarid ibn al-Musayyib and cUrwa (ibn al-Zubayr), using their own discretionary opinions,

had allowed lease of land against money 65

Malik's conception of money-rents perhaps finds its most.


explicit expression in his statement at the end of this chapter where he says, "it is reprehensible for anyone to lease his land in kind, for example, for hundred sii's (a cubic measure) of dates or of grain—whether the grains are part of the crop which grows on that land, or not".66 Furthermore, the agricultural land may be leased against fire wood, aloes wood, sandal wood,

or trunks of trees because all these types of wood, inspite of the fact that these come out of \land, are not perishable com-

modities. They endure and can be stored for long periods and can facilitate exchanges.67 Through the concept of money-rent, which is based on purely juristic discretion (ijahad), Malik casts the primitive tenures in Islamic mould, and utilizing the custom and practice of Medina as an important source of law gives them legitimacy. But he apparently does not base this theory on the model of Khaybar, for the reason that the practice

of Medina was in the main characterized by date palms and other fruit trees. This becomes clear when we analyse his theory of musdqat which he bases on the model of Khaybar. The development of this theme led him to his theory of money rent, for he could not justify the latter on analogical grounds which was done later by Abu. Yasuf,. Shaybani and other Fuqahr. For Malik, analogy in this case is out of place. However, as we shall see, he employs analogy* of mudaraba to support his theory of musilqat. But, invariably, his conceptions show that custom forms an essential part of the land laws.

But there are three broad explanations of the event of Khaybar in the traditional literature : according to the first, Khaybar was conquered by peace agreement and the Khaybarites were allowed to retain the possession of the land on the condition that they would pay to the Islamic state half of their agricul-tural production as kharaj, or land tax. This explanation seems to be irrelevant ; this land tax cannot be taken as jizya (in the broad sense of the term which also includes land tax) because the verses of jizya (Qur'an, IX : 29) were revealed in 9/630-31, while the conquest of Khaybar took place in 7/628-9.68 This explains and strengthens our viewpoint that the Prophet had made the Musalaha-agreement with the Jews according to

Analysis and Critique of Pro-Muzeirea Itadiths 67

the prevailing custom of Arabia. The quasi-tribute, which was imposed on them, is however difficult to define ; it is neither

a case of jizya/kharaj, nor a contract of strict mitayage : being

an ancient practice it has traits of the two. Maurice Gaudefroy-

Demombynes observes : Mais la confusion que nous avons

constatee deja entre organisation privee et publique entraine, dans le cas de Juifs' des Khaibar, que leurs redevance qu' on appelle

muzara'a resemble aussi bien a une amorce du future impdt

khareij69 ; that is, the payment by the Jews of half of the produce

which is called muzarda also resembles the future tax of kharaj.

The second viewpoint states that Khaybar was captured by the force of arms and the Jews were defeated. These lands

were therefore distributed among the Muslims as ghanima (booty

of war). The payment of half of the produce constituted rent of land, for these lands were finally leased to the Jewish

tenants.

According to the third version the Jews were mostly subdueo after a bitter struggle and fight, they became mere agricultural serfs. As they had finally surrendered after an agreement they were allowed to retain the right to usufruct of the land. This had other economic reasons also. At this time when the Muslims were struggling for their very survival and were devot-ing all their time and energy to defend the Community, they did not have agricultural workers who could tend to these

lands.78 The stipulation of payment of half of the produce was therefore a special kind of tribute which was a common phenomenon in pre-Islamic Arabia resulting from persistent invasions by the beduins of the oases the agriculture products

of which were coveted by them.7I The conception implicit

in the last interpretation of the deal of Khaybar would therefore seem to be the earliest statement )of the problem, while first and the second belong to later stages of development. The

theories of kharaj and rent are posterior to the theory of quasi-tribute. This will then, as rightly suggested by Abu Hanifa,

rule out any possibility of the validity of matayage which is

commonly ascribed to the land policy of the Prophet, and

muzareta interpretation of the Mugamala deal of Khaybar.

Analysis and Critique of Pro-Murat-era Hadlths 69

Secondly, like the Medinese Successor Ibn Shitab al-Zuhri (d. 124/741-2), Abu Hanifa holds that the Jewish tenants were actually landless serfs of the Muslims. With them, by implic-

ation, no such mitayage contract could be made. They were serfs but with a special status. They were not like a stranger who

comes to a tribe, asks for help and abides by it. The farmers of Khaybar were a subdued and defeated people. Therefore, a

slave/serf ('abd, cabid), unlike this stranger, may be given a

special kind of work and thus treated differently. Their share of half of the produce was intended for their maintenance which was responsibility of the Muslims. Abu Hanifa's concept of serfdom is however not very clear. The cultivators of Khaybar were not slaves but serfs with a special status which suggests that at the time of their surrender there were perhaps several nuances and gradations of serfdom.

Thirdly, the Prophet had banned all aleatory economic

transactions. In case of muzara'a, as conceived by the Fuqand',

the share or recompense of tenant's labour is clear gharar,

because he does not know whether the tree of musiigeit will ever

bear any fruit. If it bears fruit at all, he is still ignorant of its quality and quantity. This means that his labour's reward is unknown and uncertain. "This type of economic transaction,"

says Abu Hanifa, "which does not specify in clear terms the

wages ('ujra) of a labourer is by Omer (consensus) invalid in law.

The tiller in a mOtayage-contract of muzdra'a is hired for a part

of the produce both of land and of his own seed. The things which will grow-on this land are not known to him ; crop may

or may not grow, or it may get blighted. This makes Odra

(hiring) a contract of unknown and uncertain terms which is undoubtedly null and void inspite of other Fugahers consensus

on it. Similar is the muccimala of date-palms, for the labourer

here too is hired for a cerain part of the fruit which the tree will bring forth. The labourer does not know how much fruit it

will bear."74

Fourthly, Abu Hanifa says that it is a general rule of the

Shari'a that, when a Hadith is found contrary to its principles, it


Objections may be raised against this third theory. It may

be pointed out that the Jews were originally to be expelled. They therefore could not be slaves or serfs, and that the tribute which was exacted in beduin warfare did not imply ownership of the land by the imposer of the tribute. The payments from Khaybar have therefore the character of a collective rent or sharecropping. In other words, the farmers of Khaybar were 'Stayers

or sharecroppers. But as we saw before, the Khay-barites became agricultural serfs after the peace agreement (and, musdlaba)

which stipulated that they would lose their lands and become agricultural workers. This also implied that they would retain ownership of their other property including their crops and right to usufruct of the land, seemingly in exchange of their agricultural services for cultivating land which now belonged

to the Muslims. This concept of usufruct or manfa'a could be of many gradations, the sources do not throw

much light on this problem. It is more probable that the Khaybarites were agricultural serfs with limited rights of usufruct ; they were not alienable slaves of the Muslims. This brings us to the interpretation of the

Weimala of Khaybar by Abu. Hanifa.

Abu Hanifa-: the Earliest Extant Statement

Abu Hanifa (d.150/767-8), the prominent 'Iraqi jurist, thinks that the evidence of Hadith

and the facts of history do not warrant the muzara'a interpretation which the common Towhee' later inferred from the incident of Khaybar, for the share of the Muslims imposed on the Jews was a special kind of tribute. He is reported to have given five main reasons to substantiate the thesis that this deal of Khaybar did not constitute a contract of muzara'a or museiget1.72

First, the term mukhabara, in its technical-legal sense, is derived from Khaybar—the place where this practice took place, and which was categorically banned by the Prophet. The Hadiths which purport to have justified mukhcThara and muzara'a contracts, says Abfi ITanifa, have no weight.73

70 Landlord and Peasant in Early Issom

is rejected. The Hadith which is supposed to have legalized muzara'a and musdqdt

contracts evidently contravenes three such. principles : these contracts involve gharar-transactions ; tenants are hired for indeterminate and unknown wages ; and finally, they involve transactions of raw fruit before it has ripened. All these have been declared by Unice unlawful (hareem).

Lastly, he states that the contract of nietayage cannot be

justified by the far-fetched analogy of a contract for rearing cattle for some of its yield.

Abu Hanifa's basic contention is that, as all aleatory primi-tive tenures were interdicted by the economic ethics of Islam in the time of the Prophet, and as no contract of

muzara'a or musslqiit was made at Khaybar, the entire legal-social and

economic superstructure built around the concept of muzara'a is untenable.

But this position of Abu Hanifa is beset with many

problems. As he breaks completely with the theory of primitive tenures, he unlike'Malik, underestimates the role of custom in

these tenancies ; and in an idealistic fervour, judging them by the Grundnorm of the Sharra, rejects them in Coto. This was the reason why his idealism could not find favour with his pupils Abu Yiisuf and Shaybani whose approach to his problem was more pragmatic as they took full cognizance of the element of reasonable and consistent customary arrangements. They Islamically systematized them according to the methodological tools they possessed at that time.

Objections have also been raised to Abu Hanifa's theories. His assumption that the Jews were slaves has been severely criticised by other jurists. Ibn Hazm and Zurciani point out

that they were free peasants and not slaves of the Muslims. If they were really slaves, they ask, why did 'Omar I expel them

from Khaybar ? For this would be tantamount to wastage of Muslim property. Moreover, if they were slaves how could they guarantee half of the produce and how could a tax be imposed on them ?75

These objections against the assumption that the Khaybarites were reduced to serfdom are valid. The fact is

1

Analysis and Critique of Pro-Muzetra'a Hadiths 71

that, as we said before, the terms 'abd and raqiq, slave and serf, used for them the extremely vague. Serfdom in itself is a highly ambiguous cc/swept. It may be assumed that at the time of their defeat there were several meanings attached to serfdom. A serf, though by force of custom and necessity tied to the soil may retain some freedom in relation to the usufruct of land ; he may enjoy certain legal rights over land like those Muslims who as members of the Umma enjoy limited rights of ownership. Under the circumstances of warfare, as Maxime Rodinson observes, when an entire peasantry capitulates, its status could also shift from the status of a free contract like that of a free sharecropper, to that of a serfdom.76 Moreover, there were probably political reasons for the expulsion of these serfs by Ùmar I as he came to interpret the Prophetic Hadith which suggested that no two religions could coexist in the Arabian Peninsula.

Coming back after this digression, it must be stated that Zurciant in particular says that aleatory mukhdbara, that is, lease of bare land for a certain shire of its grain produce (muzlircea), was banned by the Prophet. But the deal of mzedmala at Khaybar for a share of fruit (museiqdt, and partial muzdra'a of) grain was allowed, and practised under the Prophet, Abu Bakr and Ùmar. Even after the Jews had been expelled, Ùthman and other Caliphs continued this practice. This would mean, says Zurgani, that the assumptions of Abu Hanifa convey the sense that all these Companions of the Prophet ignored the Hadith of mukhdbara-ban, or they followed what was abrogated, which is by virtue of (Ira' forbidden.

As regards the prohibition of gharar, Zurciani comments, that prohibition of aleatory transactions should be taken in a general sense, whereas the validating Hadith (concerning museidt) must be taken in a particular sense. And according to the Fiqh-principle the particular is preferred to the general. He also says that according to the general rule of the Shatta the Hadith which is found contrary to its principles is rejected only when there. is no custom or practice related to it. If society has been

Analysis and Critique of Pro-Muzdrala tladiths 73

post-Prophetic analogical deductions. However, he agrees with Malik that agricultural land may be leased against a fixed and definite sum of money to avoid any risk or chance which is characteristic of muidqdt and mina-nett tenancies.

However, Abu Hanifa's theory of quasi tribute seems to possess greater probability than those offered by Malik, Abil Yfisuf, shafiq and Ibn Hazm, and appears to be more consistent with the early historical evidence. At this stage of historical devlopment of the doctrine it was not possible to clearly dis-

tinguish between rent and tax. What appears as a simple tribute or tax at an earlier stage may seem rent at a later

stage as it really happend in the history of this doctrine.

In this later phase of social development when lines of distinction become clear and when the role of the state in relation to fiscal affairs become more articulate and sophisticated, new concepts of rent and revenue emerge. The deal of Khaybar constituted a simple, unsophisticated agreement to deliver half of the produce to the Muslims after it had been assessed by an agent appointed by them. This interpretation is in accord with the real situation prevailing at that time. Waqidi (d. 207/ 822-3) tells us that at the time of the siege, the people of Khaybar sought the help of their allies Banc' Ghafafan against Muslims

and offered them half of the produce of their land for one year.79

This shows, first, that this kind of quasi-tribute was not uncom-mon at that time. It is therefore quite natural to suppose that the stipulated share of the Muslims was a tribute imposed on the subdued people of Khaybar. Probster has also shown that

people of oases, ahi al-qurd, were often compelled by strong

beduin tribes to pay such quasi-tributes. The former owners of land, in course of time, would be gradually reduced to the status of mere serfs attached to the soi1.80 Second,

without a clear apprehension of the context of the primitive

tenures no progress can be made in understanding this problem. As we discussed earlier, the Khaybarites became serfs ; they could however enjoy the usufruct of the land they


consistently following (a well established custom), by juristic interpertation, application of a general rule can be curtailed and modified in a deliberate manner. In such a case the legislator (shari'), when he legislates, does not make another rule which is contrary to the social custom and practice. Instead, he allows for hardship cases, exception to the general law. This proves, Zurciani continues, that contract of mus2qtit is an exception (istithna') to these three general principles of the Shari'a by virtue of social necessity (darura), as it is a matter of common knowledge that every person is not in a position to cultivate his own land, or irrigate his own orchard.77

These are valid juristic onjections which take tull cogni-zance of customary practice as an important source of land laws in Islam. This shows that the doctrine of Abu Hanifa has a problem of postulation. But his theory does have the stimulus of an ideal and a conceptual unity of the general principles of the Shari'a. We can call Abil klanifa's approach as idealistic and that of Malik as historical and pragmatic as far as the law of tenure is concerned. But this absolute generalization must he qualified. If Aba Hanlfa clung to a rigid and stern idealism, this does not mean that he had no historical conception of this law. It is clear that he was conscious of the complexity of the problem ; he apparently tried to build a theory doing justice to the early pristine evidence. His ideas, which were rejected by his disciples, however, do not help us much in making out a coherent view of his theory. His random ideas have a grain of truth and we shall try to construct our own theory on the foundation laid down by him. It has also been reported that in order to make a little compromise with custom and to slightly mitigate the rigidity of his theory he allowed lease of land against a fixed amount of money or any other medium of exchange which was imperishable.78 Abu klanifa thus differs from Malik in two respects; first, he denies that any deal of museigat or muzeirtea was made at Khaybar. The famous contract between the farmers of Khaybar and the Muslims was a simple case of quasi-tribute. Second, Abfi HanIfa therefore thinks that these forms of tenure as legalized by other Fugahr are nothing but

1


cultivated, according to the general nature of the tribal custo-mary tenure where the status of an individual was determined by the tribal custom. They had lost their lands and had become serfs actually responsible for developing and cultivating the lands. Their offer to till them was readily accepted by the Muslims because at that time Muslims did not possess adequate agricultural manpower who could take care of this valuable land. It was therefore left in the hands of the Jews so long as

they continued to use it. They were expelled when the Muslims became able to cultivate these lands 81

Under a tribal tenure, it may be presumed, crop belonged to the tiller who actually cultivated it. There are some tradi-

tions which suggest that people in Medina under the influence of this custom used to raise crops on others' lands and owned the crops.82 This seems to have been a common type of tenancy in Arabia in which a tiller was allowed to use a land belonging to- another tribe or individual, plantations or crops being the property of the tiller from which he could pay the quasi-tribute, if any. There are reports which say that in these cases the land belonged to one person and the crop to another.83 These reports, if true, reflect a stage more developed than that

of the tribal tenure we were talking about. In its primitive form land could be given to a person not belonging to the same tribe and he was charged some part of the produce, or it could be given to a member of the tribe without any rent, as land for a tribe, generally speaking, is a common source of subsistence.84 The point we are making here is that the contract of Khaybar does not make any sense if it is detached from its social context of primitive and tribal tenures and is projected forward to a

situation which temporally came rather late, such as the tenancy situation in 'Iraq. Abu Hanifa is therefore consistent in his stand

when he says that in general the primitive forms of tenure were all banned by the Prophet. The problem of muzarda, however, in the natural course of affairs, when the land problem became more

and more complex under the Umayyads and the 'Abbasids as the concept, form and content of fay' lands changed, was given a

Analysis and Critique of Pro-ltfuzara'a Hadiths 75

formal and rigid interpretation. The limited and comparatively

simple Wilma evolhd and expanded gradually ; it extended to envelop and contain many newly conquered territories. This had far-reaching social and economic consequences in the concepts

of land tenure. A clear distinction must always be made between these two different stages of development of the Islamic land laws. The first stage, that is, the pre-expansion period is marked by concepts which denote a vital and vigorous consciousness of a collective and close community. The second stage or the post-expansion period is characteristic of a more pluralistic and individualistic development which started with the Umayyad rule and which assimilated many elements of different systems of landholding. The interpretation of the mucitmala-Hadiths in

terms of mitayage-tenancy by Abu 'Vasa is expressive of an advanced stage of the development of the doctrine.

Interpretation of Abu Yissuf

The Hadiths which employ the terms of '42mala, i`tamala

(mamala) regarding the Contract of Khaybar have been subject-

ed to different interpretations by other Fuqahr, using the method

of deductive analogy. According to them the word `ritnala, which may, literally mean "he bargained or contracted with

another person for work",85 suggests a strict contractual relation-ship in a purely legal sense. In other words, it means that the Prophet made with the people of Khaybar a contract of muzara'a according to which they were bound to work and till the soil with their own implements, labour and seed for half of the produce. In this connection the 'Iraqi jurist Abu Yfisuf (d. 182/798-9) whose legal philosophy in respect of the law of tenures is more developed and is essentially one of practical adjustment, gives a matter of fact explanation of the deal of Khaybar. In this interpretation he was reflecting on the contemporary tenancy situation prevailing in 'Iraq which was much more developed than that of the kIijaz. He records the following Hadiths 86

to support his own point of view. It is important to examine these traditions very carefully, for they contain the kernel of the

classical theory of muzara'a :


(a) Anas ibn Malik says that the Prophet gave Khaybar to the Jews on muscigat for irrigating and tending to the fruit trees for one half of the produce. He used to send

'Abd Allah ibn Rawaha to assess the fruit for' them and let them have either half of the crop they wished ; or

he used to say : you assess the fruit and give me the

option. They used to say, "because of this equity the Heavens and the Earth stand intact."

(b) 'Abd Allah ibn 'Umar says that the Prophet gave

Khaybar to its people for half of its produce. These lands were in their possession (ktinat fi aydihim) during the times of the Prophet, Abu Bakr and a greater part 'Umar's time, when he took them away from them.

(c) 'Abd Allah ibn 'Abbas says when the Prophet conquered

Khaybar, its people said : "0 Muhammad, we are the

owners of the agricultural implements and know the art of agriculture better than you. So make with us a deal (glimilanti)." The Prophet then concluded the deal (1malahum) for half of the produce on the stipulation that if the Muslims wished they could expel them.

When this deal was done by the people of Khaybar, the people of Fadak heard about it. The Prophet then seat Muhayyasa ibn Mas'ad to them. They made a similar deal with the Muslims—Fadak was exclusive

for the Prophet as the Muslims had not taken it by force of arms.

(d) Another version of this Iladith says that the Jews tried to bribe lbn Rawaha for a favourable assessment. He refused and said... "if you wish I will work on the

land and till it, and I will guarantee you half of the produce, or if you wish to work, you give us surety for half of the produce."

(e). 'Abd Allah ibn 'Umar says that 'Umar once stood up

and addressing the people said, "the Prophet had said

that we had made an agreement with the people of

Khaybar that if we wished we could expel them anytime.

,Analysis and Critique of Pro-Muzara'a fladiths 77

Now that they have maltreated 'Abd Allah (ibn 'Umar)

after they have assaulted a person from among the

Ansdr, they might go on assaulting others. I am going to

expel them, and if anyone has any property at Khaybar

he should take it."

Besides, some other liadiths recorded by Abii Ynsuf also

contain terms of musiiqat, musalaba and qabala (lease).87

For Abii Yasuf then the main prop of Stayage-contract is

the Deal of Khaybar epitomized in the camala-Iladiths. He main-

tains that the Fuqaha', except the Kafans, agree on this inter-

pretation, and, "the best that we have heard in this connection

is that musaqdt and muzara'a-contracts are valid in law accord-

ing to the Hadiths given here about Prophet's Deal of atrag:it

at Khaybar because with us these bIadiths are the best in

authenticity, and are more numerous and common than those

which are contrary to these. These contracts of merayage are valid

because they are analogous to mudaraba ; the land of muzara'a

and the trees of musamit are just like the capital of mudaraba.

If a person can advance his capital to a labourer in mudaraba, for

one half or one third of the profit even when this profit is not

yet known and its actual amount is not specified, it is valid

according to the Fuqaha' as far as I know. This justifies muzara'a

and mustiqat ." 88

Abu Yusuf (and also Shaybani) does not agree with Abu

Hanifa's assumption that these tnitayage-contracts are basically

aleatory transactions, and further, that wages of the tiller are

unknown and uncertain in them. For him these are analogically

derived from mudaraba-partnership, and that this qiyas is soundly

based on a total consensus (of the Fuqaha'). The material base of

the capital is present in mudaraba, on which the labourer works

for a certain part of the profit (ribb) which may or may not be

earned. This stipulated proportionate profit is not -,AnOwn

unless it is actually earned. On the same analogy, the propor-

tionate share of the tenant in muzara'a and mu'iima/a:, (i.e.,

u musaqat) contracts is not known unless the actual crop is

Thus, mitayage is derived through the analogy of the parallel

contract of muaraba.89


We shall see in the eighth chapter that this analogy, as rightly pointed out by Abu Hanifa and Ibn liazm, is incomplete

and inapposite in many respects. Nevertheless, the real problem for Abil Yusuf as jurisconsult of Haran al-Rashid (reigned 170-193/786-809) was the interpretation of the customary system

of land tenancies, and the formulation of uniformally generalized

laws. In answer to the query of Miran, he states that muzaraca on "white" land has been reprehended by the jurists of the Hijaz and Medina for its being fasid or irregular contract, but, he says, they do not see any harm in musagat-contract for fruits. Afusagat is the criterion for the Ktifites : those who disapprove of musagat also disallow muzara`a, but those who allow musagat also validate musarda. Abu Yusuf himself, like Ibn Abi Layla (d. 148/765-6), the Kiifan judge, validates both these contracts.90 It means that muzcircea is not inferred neces-sarily direct from the Prophetic Deal of Khaybar as an indepen-dent category, but instead it is an immediate deduction from and a corollary of musagat. Thus musagat seems to be the earlier interpretation of the event of Khaybar, whereas the theory of muzarcea developed later on the 'Iraqi soil and other areas.

Abu VIEW' then logically connects the mu'amala, muzarcea or musagat Deal of Khaybar with the ancient Persian institution of qabala (lease of land), basing it on a Hadith related by 'Amr ibn Dinar (d. 125 or 126[743-4) on the authority of Abu Ja'far

(d. 114 or 117 or 118/736-7), which suggests that the Prophet used to contract Khaybar on qabala (lease or tax farming) for half of its produce.93 This is systematic Islamization of the continu-ing custom and practice which is deemed consistent with stability of the Umma. This custom of qabala will again be discussed in detail in the seventh chapter.

It is thus clear that Abu Yusuf subjects mzeamala-Hadiths to the principle of giyas or systematic analogy and relegates the

theory of primitive tenures to the background maintaining that this cannot prevail against those Hadiths which support maraca. He 'therefore completely breaks off from the line of argument

followed by Abu Hanifa and develops his own viable theory.

There is a tinge of realism in his approach, for he sees the

1

Analysis and Critique of Pro-Muzara'a Hadiths 79

problem in a more pragmatic way. Muhammad ibn Hasan

al-Shaybani (d. 189/805), as we mentioned earlier, also bases

his theory of mu'amala on the tradition particularly related

by Sulayman ibn Yasar about Khaybar and does not see any harm

in it. For him deals of muzariect and musagat are all valid.92

Interpretation of al-Shafri

shafiri closely follows the doctrine of Malik and bases his

own theory both on the Contract of Khaybar and the primitive tenures. We can characterize his method as eclectic, borrowing freely from the source of ancient customary tenures, and clinging

fast to the %lath and Sunna of the Prophet. For him

the starting point is the primitive forms of tenure. He relates

all these elements in an important passage which is worth quoting

in full. He says :

If a person gives a palm tree or a vineyard to a tiller in

mu'amala contract on the condition that the tiller will get one half or one third or whatever portion of its produce,

it is musagat which is permissible and is based on the

Contract which the Prophet made with the people of

Khaybar. But if a person gives a bare land w a tiller with the

stipulation that the latter will get a share of the crop—it

is exactly multi-10a, mukhahara and muzarda which were

prohibited by the Prophet. For this reason we allow

mu'amala in nakhl (date palm) on the basis of khabar

(authoritative tradition) from the Prophet, and similarly

we disallow it in case of bare land on the basis of khabar

from the Prophet.93

This shows that for Shafi'l the ban on primitive tenures is

applicable only to bare land-muzartea and not to orchards for

latter's being a less aleatory transaction. The fruit-musagat is based on the Prophet's Deal of Khaybar. Like Malik, he resorts

to deductive analogy of genic! (mudaraba) where tree takes the

place of capital ; like Malik, he thinks that a bare land should

be leased against money which removes the element of gharar

or uncertainty from the contract. He bases this conception on

the Hadiths which purportiyely justify lease of land against


money,94 and which we shall examine in the eighth chapter.

Furthermore, shami limits musaqat only to two kinds of fruit :

dates and grapes, which are easily assessed on the tree, for they

grow in bunches and clusters.95

Ibn Hazm and his Theory of Repeal

The contribution of Ibn Hazm96, the 4dhiri or literalist jurist, towards understanding the problem of muzitra'a is very important for various reasons : first, he is the only jurist who has stated and clarified the whole range of traditions on this

subject. He has analysed the different categories of this concept and has shown the contradictions involved. He has clearly shown where and how the problem has been the subject of so much controversy. Second, he has given a critique of the muzara'a theories of all the leading Fugaher and has tried to delineate their conceptual discrepancies and difficulties of their postulates. His theory seeks to place all these Fuqaha" in their proper perspec-tives. Third, in his own conception he is equally concerned with the right of the tenants. He pleads forcefully for making the contract of sharecropping binding on both parties—tenant and landlord—making the tiller a free peasant whose labour is as inviolable (hurma muharrama) as the land of a landlord : there-fore it must be given its due wages according to the Queanic verses (II : 194, which among other things enjoin that inviolable rights must be paid their equivalent wages, al-hurumat qisds).97

Because of this he vehemently criticises the theories of fixed money rent of Malik and Shafi'l which do not take enough care of the precarious nature of the tenant. He states that since the tenant, because of a bad crop, may not get anything, a landowner equally has no right to receive a fixed money rent in advance. He thinks that they must both be made to share the risk ; the shares must be subject to the actual produce of the land. He is in favour of making a common pool of the produce and then its division according to the stipulated shares. This is not absolutely tenant's viewpoint, but it is certainly different from

the earlier theories of Abu Yfisuf and the later jurists which

Analysis and Critique of Pro-Muzara'a Fladiths 81

more or less leave tenants at the mercy of landlords. "In the mu'elmaldt Ibtr,Hazm limits considerably the forms of association by strict application of the principle that to each person is returned the fruit of his labour."98

Fourth, Ibn Hazm's theory also points out candidly the inappositeness and inconsistencies of the Funali's analogical deductions relating to the problem of muzdra'altnusdqat. He shows how prescriptions and acts originally limited to a single class or specie of phenomenon are made to apply, by deductive reasoning, to all classes of the genus. In this way, resemblances between different sets of acts or systems are inferred by the common Fuqahte as due to some common governing law or princi-ple. The apparent resemblance between two similar economic transactions of muddraba and muzara'a; according to Ibn Hazm, is superficial. Like Abu Hanifa, he believes that muzara'a and mustiqeit cannot be derived analogically from the contract of qirtui or muddraba. He shows how dangerous this method of analogy or qiyas in inexpert hands can be when 'a priori' general rules are rigidly applied on parallel and similar cases without clearly' understanding the common principle, ,reason or 'ilia, of their similarity. In his book on law, Kitab al-Muitallei, again and again he attacks the method of analogy ; he points out the general inconsistency in the method of the Fuqahir who make use of analogy in one case and not in aitother.99

Ibn Hazm therefore endeavours to solve the problem with-out invoking the method of qiyas. He realizes the significance and complexity of the Contract of Khaybar and the primitive tenures. According to him the 'lila for prohibiting primitive tenures was simply the fact of Ultra (leasing, renting) of land, i.e., kirk' al-ard, against money, in kind, or against a share of land's produce. These ancient forms of land tenure were rejected by the economic • ethics of Islam not only because they were aleatory in their basic character but more significantly because they fundamentally involved leasing of land for a preguaranteed rent for the landlord.


However, in his literalist approach he does not do justice to the case of Khaybar. His argument runs like this : at a point in history, despite the total Prophetic ban on all the primitive customary tenures, the Prophet comes and subdues the farmers of Khaybar and subsequently enters into a contract with them, stipulating that they would get a certain share of the produce in exchange for their work. Now this deal, says Ibn Hazm, con-stitutes a particular case, or an exception to the previous total and generalized ban which, inter alia, initially had also covered this type of tenure. Nevertheless, the ban on all other forms substantially remains, including lease against money. This means that this particular Contract of Khaybar repeals only that portion of the previous total ban which covered land lease against a share of its produce. By this circuitous reasoning of general (`amain) and particular (khass) the impression is created that, with some modification, the theory of muzara'a stands vindicated. This impression would be erroneous and would miss the point Ibn Hazm is trying to make. The whole emphasis in his argu-ment is centered particularly on invalidating rent as a prefixed and guaranteed increment for the landlord, for it is the tenant who suffers if crop is ruined. For him both land and labour are sacred and inviolable, Imrumat mul,azrannit.wo The implication is that both landlord and tenant should equally share risk ; when crop is reaped it must be shared according to the stipulation of

the contract.

The example of Khaybar, says Ibn Hazm, performs two important functions it makes a clean sweep of all the primitive forms of landholding in which rent of land (taken from the

tenant in advance) qua rent was at the root of landless peasant's exploitation who had to bear all the loss if crop was ruined. Secondly, the Contract with the farmers of Khaybar legitimizes mitayage both in fruit and grain which do not fix rents in terms

of money or food grains, that is, which only stipulate that a certain share of the proudce of land involved, if the land gives any yield at all, must go to the landlord otherwise not 101

It would seem that this interpretation of Khaybar which gives a new twist to the whole problem and modifies its character

Analysis and Critique of Pro-Muzara'a Iladaths 83

represents a hyper-reaction to the one-sided explanations put forward by those Fitqah(i' who legalize muzcircea in all forms. His own theory, however, is not free from acute difficulties. Why, it may be asked, shOuld this naskh or repeal theory not apply to musaqat and muzara'a as well ? What is the reason that the privilege of istitlmiz" is only given to muzara'a ? Why should not Vara or lease•of land against money be allowed as it is a lesser evil--it is less aleatory than muzara'a and musaqiit ? Working in the framework of his contemporary modes of legal thought he turns the tables on the method of analogy which he despisingly rejects but then falls into the trap of his own litera-- list system and' loses his own idealising imagination in his search fen a purely literal interpretation.

The core of the matter for him are the lIadiths which ban lease of land, and which are related by Jabir ibn `Abd Abu Hurayra and Rafi` ibn Khadij and 'others, and dis2ussed by us earlier. He interprets muhaqala and mukhabara in terms of lease of land, that is, kira' al-ard and ijarat al-ar4, which were prohibited by the Prophet and therefore disapproved of by the Companions and the Successors. At the same time, he finds the muselmala-Ifadiths related by Ibn 'Omar to be correct which finally establishes muzara'a as valid in law. "It is as clear as day light," he states in an important passage, "that the ban on

mulchabara and lease of land against a part of its produce undoubtedly occurred before the event of Khaybar. It is

also clear that the last act (respecting land tenancy) of the Prophet before he died was the giving of land against half of the produce of grain and fruit (i.e., at Khaybar). This was the policy followed by Abu Bakr, 'Omar and all other Companions. Of necessity every person with a sense of discrimination knows (from the historical facts) that hi Khaybar there were about two thousand tillers of the soil, that the' total produce comprised almost eighty thousand camel loads, and that this land was in the hands of the Jews for more than fifteen years—four years under

the Prophet, two and a half under Abil Bakr, and for ten years during the period of 'Omar when he at last expelled


them from the lands in the last years of his Caliphate.'02

Ibn Hazm criticizes those Fuqahr who, either like Abu

Hanifa, presume that the Jews were slaves or serfs ('able!), or those who think that they were free but subject to jizya (poll-tax).

He argues that they were both captured by force and were free. He thinks that if the Imam declares such people to be slaves, a

khums or one fifth of the booty of war is first of all taken out. Furthermore, it is also a fact that they were exiled by 'Liman

By what logic then, he asks, are they supposed to be slaves ?

There would be then no point in expelling them and thus depriv-

ing the Muslims of their wealth (i.e., slaves). There would be

in these slaves, he arguse, in that case, shares of orphans and widows. This squandering of Muslim property .then may not

only be ascribed to 'Um% I but also to the Prophet himself who

had also originally entertained thoughts of exiling them. This

is all impossible to imagine.

So it follows, continues Ibn Hazm, that they were not the

slaves of the Prophet as a particular case as is claimed since the Prophet, it is reported, did not possess any share except a fifth

and a common share with other Muslims. Nor were they his

salty (a share taken by the Prophet before others as head of the Muslim community), because we find no reports which could suggest that an entire property collectively taken by the Muslims by fightings, became slaves of the Prophet exclusively. Suppose, he asks, that they were his exclusive slaves, then he should have

freed them according to the famous Hadith which says that he

left no property when he died. The fact is that some of the Jewish strongholds had sought peace and had surrendered as free

people (while others were subdued by force). And as is suggested

by the Hat/1th of Ibn ‘Umar, the Prophet had divided the lands

among the Muslims.103

Ibn Hazm cites the traditions which state that Ibn 'Omar, Abu Ja`far, Khabbab ibn Aratt (d. 37/657-8), Hudhayfa ibn

al-Yaman (d. 36/656-7)104, and Ibn Masid—all allowed and

practised muzartta. He also attributes this practice to other

Companions, such as Abu Bakr, 'Umar I, 'Uthman, 'Ali, Sed

Analysis and Critique of Pro-Muldraca Idadithe 85

and Mu'adh ibn Jabal.105 Among the Successors who allowed muetra`a, he quotes, were al-Qasirn ibn Muhammad ibn Abi

bakr, Ibn Sirin, EAmr ibn Dinar, Said ibn al-Musayyib, `Umar ibn 'Abd aPAziz and Ibn Shihab al-Zuhr1.106

The jurists who legalize metayage, says Ibn 11azm, include Ibn Abi Layla, Sufyan al-Thawri, Awza.9, Abu Yfisuf,

Muhammad ibn al-Hasan al Shaybani and Ibn al-Mundhir. Altinad ibn Hanbal and Ishaq both validate muzeirda with the qualification that seed must be provided by the landlord, and animals, agricultural implements and labour by the tiller himself.107

It must be noted that all these generalizations of Ibn Hazm

refer to and are essentially rooted in the later concepts and ideas of the Fuqaha'. His theory of muzaraga in fact is based on the mu'dmala-Ilaclithe of Ibn 'Umar which in particular deal with Khaybar. In his interpretation of the Contract of

Khaybar, Ibn Hazm confines himself to a pure literalist explana-tion. His basic standpoint is 'contrary to the notion that the

theories of land tenure in Islam are the result of an historical

evolution ; he therefore ignores the historical role of the custo-mary tenures and even fails to understand the economic status of the farmers of Khaybar.

He strongly objects to the theories of Abii Hanifa, Malik and Shafi'l and even rejects the term of musdqat, which, he believes, was never used, by the Prophet and his Companions. But at the same time he coins his own terms of mugharasa and flte-1=1a fi al-thimar for fruit-mitayage which have no basis in the Idadith literature.108 All these observations of Ibn Hazm,

generally speaking, fall in line with the general theories of the Fuqahr which relate to their concepts of fay'-l'ands, khan-if and rent. These theories will be discussed in detail in the seventh and eighth chapters. Ibn Hazm takes exception to

those who think that the share of the Muslims constituted jizya because this half share actually comprised the legal titles

of the Muslims who owned these estates (huquq arbab al dlytV), which had earlier been distributed among them, and on which


the contract was made with the farmers of Khaybar stipulating that they would provide their labour. These landowners, says Ibn Hazm, were the same people who were addressed by 'Umar I at the time the people of Khaybar were exiled. 'Umar had asked the Muslims to take over their amival (wealth, property)

in Khaybar. The Vithdr or traditions in this connection, he

emphasiies, confirm the historical facts and are equivalent to

mutawatira mutazahira, i.e., reports which are overwhelmingly related by numerous reliable authorities, and therefore "evi-dent", like the report which concerns the property of 'Omar which, he received in Khaybar as his share, and finally on the

suggestion of the Prophet he made it a sadaqa (a pious endow-

ment). Equally historically unassailable are the traditions of Ibn `Umar which say that the Muslims used to go to Khaybar and disperse on their lands. The Mothers of the Believers (wives of the Prophet) were assigned some lands and water, and some of them got camel loads of the produce. The descendants of the Emigrants still used to sojourn on their inherited lands

in Khaybar.109

Ibn Hazm's basic doctrine thus, barring his modifications, represents a clear expression of the classical theory of muzartea.

The subsequent interpretation of the historical event of Khaybar, then, forms in fundamental respects, the logical pivot of the development of the theory of land tenure. The old theory of primitive tenures underwent profound changes since Abu Hanifa's time. This development, it appears, was marked by two general features : the original doctrine was simplified and in turn further elaborated in form and concept in a new direc-tion. It was thus integrated in substance with the actual contemporary practice of tenures. Both these processes were mainly a consequence of the territorial expansion of Islam in the newly conquered territories which possessed highly develo-ped institutions and notions of landholdings.. We shall see that the Companions like ljudhayfa ibn al-Yaman, Khabbab ibn al-Aratt, 'Abd Allah,Ibn Mas'ad and others, who in parti-cular are reported to have exercised their discretionary judgments

in legalizing muzarcea as a principle of rukhsa, or exception to

Analysis and Critique of Pro-Muzartea liadiths 87

the general ban on the primitive tenures, had settled in 'Iraq. This phenomenon of settlement on the conquered lands is later than the pre-coriquest phenomenon of the Hijaz. We shall also discuss that the general ban on the primitive tenures became irrelevant and even harmful to the general interests of the Umma.

Associated with the concepts of primitive tenures and the Contract of Khaybar are the muzarcea-pladiths which the advocates of the doctrine of muzartealmusdqra tend to adduce as evidence, suggesting that the Prophet had allowed lease of land against money and in kind.

Evidence of Muzitra'a-Hadiths

In this section we intend to give a critical evaluation of the Hadiths which supposedly legitimize muzaracalmusaqat, and lade al-ard (lease for money-rent). We shall examine only some representative traditions which are 'usually taken as the main buttress by the defenders of muzarcea thesis. We shall also discuss. the principle of rukhsa which liberally modifies the prohibition of muzara`a.

Bukhari. has given a Hadith which says that, when the Emigrants came to Medina (in 1/622-3), the Ansar said to the Prophet : "Divide the date-palms between us and our brothers (iqsim . baynand Iva bayna ikhwanina al-nakhrl). He replied in the negative. The Ansar then said that -the Emigrants would contribute provisions and ekpenses, and thus they would be associated with them in fruit (takfana al-ma'anata wa nushriku-lcum fi al-thanzarati). Upon this the Emigrants said that they would agree. This tradition has been related on the authority

of Abu Hurayrailo It seems that Bukhari gives this tradition

as the first celebrated rule which constitutes the first model and justification for musaqat, which is generally subsumed by

him under the broad category of muziircea. The Hadith suggests that the Ansar, who were largely engaged in agriculture in Medina, invited the Emigrant Muslims for a contract of partner-ship, isharlik ft al-thimar (fruit-metayage). This interpretation


is not corroborated by any historical evidence. The early sources do not mention any such deal between these two main groups of the Muslims. This is highly unlikely since the Emigrants, in general so poor, how could they contribute pro-visions and expenses. The vice versa would be more acceptable,

i.e., the land and the expenses be contributed by the Ansar,

and labour by the Emigrants.

On the other hand, our sources are explicit that after the Muirdfirlin had arrived in Medina, they were bound to the Ansar as brothers, according to the famous agreement of

MuYikhat (brotherhood), and that the Ansar shared their wealth

with the Muhafirisn not as tenants and landlords, or capital owners and labourers but as brothers in the real economic sense, equally sharing wealth of each other." Though this

was an ad hoc measure, yet the ties of economic brotherhood did continue and were fervently sustained. "When cUmar ibn al-Khattab started paying stipends to the Muslims in Syria,"

says Ibn Isbaq, "he asked Bilal, who was just leaving for Syria to participate in wars, as to whom his share should be paid. He opted for Abu Ruwayba, for he had been made his brother by the Prophet.”112 Ibn Hajar (d. 852/1448-9), commenting on this tradition cites Ibn al-Tin to the effect that the Emigrants

shared the wealth of the Ansar according to the provision of

al-Muhajirin, i. e., making the Ansar share their lands with their Emigrant brothers, and that there was no need for

any metayage deal. Ibn Hajar does not agree to this explanation

because, he thinks, that this is not based on any evidence, and

that »asal dose not necessarily prove that the land was shared

by the Emigrants.113 Nevertheless, the context of the Ifaclith

does not suggest that it was a musagat-contract.

Further, there is no mention here of any method for

sharing the produce. Why is there silence on this important

point? The ifadith also shows that this was not approved of

by the Prophet as its first part implies that he replied in the negative. This might however be explained, as F. Peltier

points out, that this deal, which does not mention the terms of the contract, may correspond to an already established custom

Analysis and Critique of Pro-Muzdra'a fladiths 89

according to which each party in the contract was entitled to half of the produce.114 If for a moment we assume that this is a case of musaqiii, one of the primitive and customary tenures of the Hijaz, this Health could make sense while even strengthen-ing our own thesis. This constitutes an ad hoc or exceptional measure to temporarily solve the economic problem of the des-

titute Muslims. This practice may have continued till such

time when some lands were conquered and a definite policy on the issue was laid down in terms of common ownership, and this aleatory tenure was banned. This explanation seems to be probable as it brings out the fact clearly that this MUSeNat-tenancy was 'deeply rooted in the social structure of the pre-Islamic Hijaz. However, this Ilailith does not suggest that the Ansar and the Muheifirun engaged in metayage.

Another noteworthy Hadith has also been recorded by Bukhari in kitab al-muzarda which gives the essence of the whole conception of muziircea. It alludes to many elements of its concept and content. (A variant version of the tradition may be found in Abu Yiisuf's El:rib al-Kharaj, p. 51). Under the section of al-murtira'a for half of produce or so, Bukhari records :

Qays ibn Muslim relates on the authority of Abu 'War

who said that there was not a single house belonging to the Muhajirun (in Medina ?) which did not practice muzdraà, against one third, or one fourth of land's produce. 'Ali, Sa'd ibn Malik, 'Abd Allah ibn Masàd, 'Umar ibn 'Abd al-'Aziz, Qasim, 'Urwa, and families of Abfi Bakr, Ùmar, Àll, and Ibn Sinn—all practised muzara'a. (And that) 'Abd al-Rabman ibn al Aswad says that he used to associate

with 'Abd al-Rabman ibn Yazid in an agricultural partner-ship, and that 'Umar used to engage in deal of mitdmala with people, on the condition that if 'Umar supplied seed he would have half of the crop, and if they supplied seed they would have half. And Hasan (al-Basfi) was of the opinion that there was no harm if one person gave his land and in

association with another person invested together in the inputs, and after crop was ready they could share it equally.


This was also the opinion of Zuhri. Hasan added that there was no harm if cotton was harvested and gathered for half of the crop. Ibrahim, Ibn Sirin, Hakam, Zuhri and Qatada had said that there was no harm if the owner of yarn gave it to a weaver to weave some cloth for one third,

one fourth of the yarn, or cloth. Ma`mar used to say that there was no harm if a person gave his cattle to another person for rearing them up for a certain period of time, for one third or one fourth of cattle's offsprings.115

A careful analysis of this tradition shows that various elements, ideas and concepts have been put together. Qays ibn Muslim (d.120/737-8) was a Kufan and reported to be a Murji'ite (who held the opinion that a Muslim after committing a mortal sin still remained a Mu'min—a sort of religio-political conformism to the status quo).116 This tradition conceives of muzitra'a in a very general way. The first part however clearly

defines mtattra'a in the sense of mitayage. In the second part the term muzcira`a is not used and it is not clear that the practices mentioned there are meant to be subsumed under this term. In

Wmar's mu'ilmala other terms are not clearly mentioned.

Hasan's idea of muzaraca, as this tradition shows, was of a simple ishtirak or agricultural partnership in which one person gives his land to another and probably they work together (or hire someone as cultivator for wages) and thus share the crop equally. This is

not muzarcea in the sense of metayage, but a joint partnership in which both of them share loss, if any. We have already seen that Hasan has also been reported to have disapproved of muthra`a. His other opinion about cotton relates to wages and not to share-cropping. It is strange that Hasan allowed such indeterminate wages when all the Fuqaha' consider such transactions aleatory and therefore invalid in law. The example of yarn, again, belongs to the same category but with a less aleatory element.

But the analogy of cattle is a clear case of gharar, reprehended

by the Fuqaha'.

It is reasonable to assume that all these kinds of gharar

transactions, inspite of their ban, have a customary sanction. It

Analysis and Critique of Pro-Muzaraca Iladiths 91.

seems that into the broad category of muzitra'a which compre-hends a multiplicity of customary practices of the period all the cases mentioned ih this tradition are made to fit so that, when placed in the proper frame of reference, a series of rules and principles become standardized and applicable from the juristic-traditionistic viewpoint. This raises an important question as to what -extent the Islamic laws of tenure sanction the continuing custom. The examination of this question is put off for a later discussion.

Qays ibn Muslim was a Kufan, whereas Abu Ja`far (Muhammad ibn 'Ali ibn Husayn al-Baqir who died in 114 or t17 or 118/737-8) was a Medinese. It is also a fact that no Medinese has reported on this problem from Abu Jalar. This tradition has, however, been reported by others in variant versions. Some scholars even rejected this tradition.117 As regards 'Ali (d. 40/660-61), there is a tradition recorded in Musnad Zayd, under the section of kith?) al-buy0c, in which Zayd ibn 'All (d. 122/739-40) relates on the authority of his father and grand-father that 'Ali reported from the Prophet that the latter prohibited qabala (lease of land) against one third and one fourth of land's produce. The Prophet said that if any-one among the Muslims owned lands, he should cultivate it himself or lend it to his (Muslim) brother. (Because of this ban on lease), continues 'Ali, many lands were abandoned. The people then asked the Prophet that he should grant them rukhsa (exception to the general ban). So the Prophet gave them the permission and he also gave Khaybar to the people for half of its produce, on the condition that the. Khaybarites would irrigate, fecundate, and protect the trees. Ibn Rawatia would then come and assess the fruit and give them their half of the share.118

This tradition substantially differs from that of Qays ibn Muslim in so far as this tradition clearly states that originally the Prophet had banned lease of land in a categorical manner, and that at a later stage the Prophet gave rukhsa for cases of exceptional hardship. It must also be noted that the last part of this tradition.: "then many lands were abandoned" (fa taccatalat kathirun mitt al aradin), is not found in any second century text.


However, this does not prove that this tradition is not genuine in substance ; it proves the fact that Abd Ja'far considered muzara'a lawful.t19

As far as Ùmar II is concerned, there is not a single report which could show that he ever leased his personal lands on muzdralq. We have already seen that the lands in question were the abandoned state lands which were in need of cultivation. They belonged to the category of state-muzarala. Ùmar II

ordered his governor to give those state lands to the tillers if possible on higher,lease rates to augment the resources of the public treasury, and also to avoid their falling into private hands because of their being abandoned and becoming "dead"

lands.120

Sa'd ibn Malik (d. between 51 and 58(677-8) was a promi-

nent Companion. He was governor of Kafa for sometime during the Caliphates of Ùmar and 'Uthman. Ibn Hajar tells us that, as recorded in the Musnad of Abu Yalla, at the time when Sa'd observed the controversy among the Companions of the Prophet over buying of "dead" lands, he went out with his family (revived a piece of "dead" land in the Khartij lands of Kufa) and

settled on it.121 It may easily be conjectured that, as the muzara'a-tradition suggests, Sa'd probably engaged in mdtayage

in 'Iraq after considering it an exception to the general rule of prohibition : the conditions in 'Iraq were no doubt different from

those of the &Wax.

As the tradition under study also points out, 'Abd Allah ibn Mas'ad also considered mueira'a permissible. His name has also been significantly associated-with other related concepts of fay'

and dukhul (buying and leasing) of Kharaj lands in 'Iraq. It has

also been reported that he had originally favoured the division of

conquered lands among the individual Muslims.122 He bought a

piece of Kharaj land by stipulating with a dihmmi dihq4n that he

would pay the latter's rent (kharab and would thus become

owner of that land.121 After the conquest of 'Iraq he obtained

some land. therelu ; and perhaps considered muthra'a exception

to the original ban, and thus permissible in Islamic law. But

Analysis and Critique of Pro-Muzara'a tladiths 93

this does not mean that he allowed mdtayage in all its forms as a uniform general principle. It is more likely that ascription to him of all these exceptional rules of mdtayage, and buying private estates out of Kharaj lands is tendentious in many respects : he was a prominent Companion and had lived in Kafa for years. He was later considered a main authority for the Kafan 'fraqian doctrine of muziraà. The legal traditions attributed to Ibn Masud, in general, do not seem to be genuine as to him are attributed many later doctrines. The name of Ibn Masud usually indicates prevailing doctrine of the school of Kafa.125

It is reasonable to infer that muetra'a as a formal administ-rative principle in all its developed forms was certainly a product of the 'Iraqian agrarian conditions. We shall have occasion to referto this phenomenon in the following pages. Regarding Ibn Mas'ad It must be ceded that given the conditions of 'Iraq, where agriculture was more developed and tenancy relations between tenant and landlord more elaborate, he may have taken mdtayage as socially necessary and reasonable custom after modifying the general prohibition on them which could no longer be applied in the circumstances of 'Iraq.

Ùrwa (d. 92 or 94/712-3) has also been reported to have practised muara'a. All other reports of similar nature must be interpreted and understood in this context. A report says that Zubayr, Sa`d, Ibn Masud, Khabbab and Usama were granted estates (iqfas) by 'Uthman in 'Iraq from the category of "dead" lands.126 It is highly significant that mdtayage practices are in general ascribed to those Companions who were also granted private estates in the newly conquered lands. We have also seen that the Successors like Ta'as and Shati, who are reported to be pro-muzara'a, possessed landed estates.122

We will examine some more traditions relating to muzilra'a' and money-rents :

Har4ala ibn Qays-RAW ibn Khadij says that two of his uncles had told him that they were leasing land during the time of the Prophet for cultivation of crops on fixed areas of the field, like, cultivation reserved on the land watered

Lr

it


by streamlets, arbià" (singular rabi`), or for something which was reserved by a landlord (exclusively). The Prophet banned this practice. Hano.la then asked Rah` if it was permissible against money. RH` replied that there was no harm in such a money rent.128

In this tradition the suggestion of leasing land for money is a personal interpretation or ijtihad of Rafi`. They are not the words of the Prophet. It is possible that ROA` inferred this either from the text of the bladith or he thought that kira' al-ard had not been banned in absolute terms.I29 This clearly shows that the use of money in tenures was gradually adopted and was considered reasonable by the Companions and after them by the Successors. To this tradition Bukhari has added the opinion of the Egyptian jurist al-Layth ibn Sa‘d, a very cogent representative of muzaraà-thesis. Al-Layth says : "Any person who possesses A sense of discrimination between what is lawful and what is forbidden will perceive and understand that the thing which was banned by the Prophet was nothing but mukhatara, an aleatory traniaction.I30 Abu Da'fid and Nasa'i give another similar version of the Harlith:

Sacid ibn al-Musayyib-Rafic says that the Prophet banned mulhaqala and muzabana and said that only three persons could till a land : a peasant proprietor, a person who gets land free of any rent, and a person who obtains land on lease for money.131

Nasa'i comments that in this tradition only the first part is map', that is, connected to the Prophet, i.e., "he banned mulfraqala and muzabana", and the last part is the saying of Said himself. Nasa'i adds that the other versions of the 'prink are mursal.132

Muslim records :

Thabit ibn paljbak related that the Prophet prohibited rnuzara'a but allowed mu'ajara (lease, particularly against money). Thabit says there is no harm in it133

These and other Halt& of this genre are numerous and recorded in all the standard collections. We were trying to

Analysis and Critique of Pro,-Muzarda Hadiths 95

demonstrate that if all the pro-muzarda traditions are critically analysed many discrepancies can easily be discerned in them., This shows that.many diverse and dissimilar ideas and concepts, which belong to different social contexts and periods, are juxta-

posed in the Hadith literature. For instance, Bukhari, in the

section of kitab al-muzarda of his .Fahilt, gives many traditions on

the subject of agriculture in general. A careful study of all these traditions reveals that many subjects not directly related to

metayage are assumed to be coterminous and co-extensive with

the subject of muzaraà. Under the subsection of "mortmains

(awqrtf) of the Prophet's Companions, land of Kharaj, and their

muzara'a and mu'amala", Bukhari mentions, in particular, a cer-

tain piece of land which ‘Umar I made sadaqa (mortmain) on the Prophet's suggestion. Next, Bukhari gives a tradition of Ùmar I in which the latter says : "Were there no future gene-rations of the Muslims, I would have distributed all conquered lands among the Muslim conquerors in the same way as the Prophet did in Khaybar."I34 Now, this clearly shows that Bukhari is reflecting the institution of state muzara'a which in its

developed form emerged much later under the Umayyads in Ìraq and elsewhere as a consciously formulated principle of state finances. tmar's mortmain in Khaybar and the conquests of Kharaj lands under him and their immobilization belong to different historical contexts.

Another conclusion also emerges from this discussion. At

later stages, after the territorial conquests out of the Arabian

Peninsula, the Companions, Successors and the jurists-tradi-tionists sought to exercise their own interpretative discretion vis-a-vis the economic situation in the newly conquered lands. This explains the conflicting reports relating to them. Any land-holding which_did not appear to them very aleatory of the type of mubaqala was considered by them socially reasonable and legally valid. For obvious economic and political reasons, there-fore, the new arrangements and relations between tenants/serfs and the state were to be redefined, reformulated and rationalized on the criteria of the Sharra. Here the matayage-Ifadiths primarily function to provide plausible rationalizations of the

Analysis and Critique of Pro-Muzara'a Hadiths 97

Hazm. He characterizes this attempt at stultifying the Prophetic

ban on land lease as an act of arbitrariness on the one side, and on the other;Suqahrs whole effort in this connection a tenden-

tious logic.136

Following are some of the other important tradition's in this connection which have also been given by Ibn Hazm in particular

with their criticism :

Zayd ibn Thabit says : May God forgive Rafi', for I am

really more knowledgeable in Hadith than him. The fact is

that to two men who were fighting (over some lease problem)

the Prophet had said, "if this (lease) problem leads to such

a point (i.e., fighting) do not lease your lands." Musaddad (a narrator in the chain of transmission of this Hadith) says

that Rafir only heard the words "do not lease your

lands." 137

This Hadith which is ascribed to Zayd138 seems to be dubious.

Raft' has related many traditions which indicate that lease of

land was prohibited. This single Hadith cannot nullify all those

reliable reports. Even if this is authentic, says Ibn Hazm, it does not prove that Rafi"s narration is nothing but his imagi-nation. The logical approach to this must entail that Rafi' and Zayd, in respect of their authenticity should be considered beyond any reproach. This invites us to suppose that while Zayd did remember everything which the Prophet uttered on that particular occasion, Raft` remembered only the last part of it. It is also a fact, says lbn Hazm, that ROA', as many tradi-tions state, did hear the Prophet banning lease of land, but

Zayd's name does not even appear in those traditions. What then is the criterion, asks Ibn Hazm, for preferring Zayd to Rafir

in this single [Path? Both Zayd and Ran.' are esteemed Com-

panions and both are considered reliable. But it is also a fact that total ban on land lease is reported besides Rat, from such eminent Companions as Jabir, Abu Hurayra and Ibn cUmar.139

Furthermore, as we saw before, Zayd ibn Thabit interpreted

mukhabara as lease of land for one half, one third or one fourth

of its produce, i.e., muaraà, and that it was categorically

prohibited by the Prophet.10


concrete economic situation. This point will become clear when we study and analyze in detail the system of tenure in pre-Islamic Byzantine and Sasanian Empires.

There is no doubt that the traditions which we have seen are authentic in the technical-legal sense, but original ban on motayage is far more weighty and overwhelming according to the traditions of Rat, Jabir, Abu Hurayra, Abu Sa'id and also Àbd Allah ibn Ùmar. Thu 'Ilmar does not transmit the ban on mitayage directly from the Prophet ; he merely revoked his practice of leasing land after Rat told him that the Prophet had prohibited it. All these Companions command more respect than Thabit ibn pahhak (d. 45 or 47/667-8). The prohibition of mitayage even extends to various nuances of mubals, i.e., cases of tenure which are supposed to be permissible in law, as excep-tion to the general rule of ban. The general law is presumed to be indifferent to the exceptional cases. This is the theory of

istiPab or nadb. This theory proposes that the total ban on muara'a and mul..agalalmukhabara tenures may be correlated to or explained in terms of either imperfection or irregularity (fasad) in forms of tenancy or in terms of abstinence or by way of nadb, as Ibn rtjmar, so argue the Fuqaha', is reported to have said that the Prophet had never forbidden land lease—rather he

had said that it was better to lend land free to one of brothers than charging him any rent or recompense.135

Bukhari gives another type of traditions under the section of "Mutual beneficence and sharing of each others lands (Mu'asat) in matters of agriculture". These traditions mainly related by Rafi', Jabir, Ibn 'Abbas and Ibn 'Ilmar indicate that the Prophet actually did not ban muzetra'a but left it as a matter of individual prudence and judgment for benefitting each other, and that it is better not to charge any rent for land. This is a

plausible explanation, but this seems to be another systematic effort to invoke an ethico-legal concept, to fortify the theory of muzareta. It is obvious that this principle of /balsa makes the nahy (prohibition) ineffective and even devoid of the original purposiveness. This has prompted a sharp attack from Ibn


Some more Hadiths related by Ibn 'Abbas (d. 68/687) which we have already mentioned before, relate to the category of mu'asat :

Ibn 'Abbas says that the Prophet did not prohibit muzdra'a, but enjoined that people should treat each other with

kindness and mutual benevolence. Tirmidhi considers this tradition authentic.141

Ibn 'Abbas reports that the Prophet said that it .was better

that one of the Muslims lent his land to his brother than charged him any rent. This is 1tag/. In the language of the Ansdr it is called mulOqala.142

Ibn Hazm says this shows that Ibn 'Abbas never heard the prohibition, whereas other Companions like Jabir and Abu

Hurayra had heard it. One who affirms something in a positive way and confirms it, is to be given priority over a person who

knows it only in a negative manner (i.e., does not know). One who says that he knows is preferable to a person who says that he does not know.143

Another Ifactith states ; Sarid ibn al-Musayyib relates from Sa`d ibn Abi Waqqas who said that the Prophet gave exceptional permission (arkhasa) to lease of land for money.144 In another narration of the Iladith, according to Ibn Hazm, instead of its being reported from Àbd ibn Habib al-Andalusi it is reported from Malik (Àbd ibn Majishan) who is a weak transmitter. Another riwaya or narration is from Muhammad ibn sAbd al-Rahman who is majhal (unknown). So this Ifadith does not seem to command authenticity.145 We shall see that this tradition attributed to Sed belongs to the category of rukhsa traditions.

There are some other Hadiths which Ibn Hazm has also criticised. They are very often quoted in support of land lease.146 The inconsistencies and discrepancies in all these traditions show that the anti-muetra'a Hadiths are more original and primitive and that the pro-muzdra'a traditions have obviously arisen under actual historical practices, for they contain many

unrelated and disparate elements which emerged late. All these

Analysis and Critique of Pro-Muzdra'a Hadiths 99

pro-muzdra'a traditions appear very confusing, but if explained

and analysed in the light of those historical Hadiths which

lucidly describe and characterize the primitive tenures, they

naturally fall in their historical perspective, making their concepts

clear and comprehensible. This was but a part of the general process of rationalization of the 'reasonable' customary tenures which were, in the eyes of many jurists and traditionists necessary

for satisfying human needs. We shall try to elucidate this point

in the next chapter.

After a carefull study of all pro-muzeira'a Hadiths, it becomes

clear that lease of land for money, as Ibn Hazm points out, also has not been supported by many Companions, except by Sa°d,

Ibn 'Abbas, Raft' and Ibn Òmar etc, but it is also a fact that

Rafi• has authoritatively reported that no such leases are valid,

and all the Fuqand' are unanimous that Ibn 'Omar had reversed

his practice of leasing land when he heard that it had been

banned.147 It is pertinent to examine another tradition which

has very often !teen quoted in support of land lease :

Tails says Muradh ibn Jabal used to lease land during the

time of the Prophet, Abii Bakr, Òmar and H.Jthman, for one

third or one fourth of its produce.148

Another version says : Mugadh came to Yemen and found there

people practising mukhabara. He approved of the practice and

allowed it.149 The first tradition is highly objectionable on

historical grounds, for Mugadh died of plague in the year 18/

639-640 at 'Amawas in Palestine at the age of 38 during the

Caliphate of Himar I (13-23/634-644), he did not see the Caliphate

of Ùthrnan (23-35/644-656).150 Secondly, Ta'fis never met

Muradh and therefore could not report from him. Nevertheless,

Ibn Hajar thinks that the isndd is authentic.151

We shall now conclude this part of our discussion with some

general observations pertaining to the', mu'dmala-Hadiths relating

to Khaybar and their interpretation given by the jurists. The

mu'dmala-Hadiths in substance are basically historical texts which

are open to several possible explanations. We have already dis-cussed some of the possible hypotheses in the first and second


chapters. The hypothesis which can adequately explain and account for the agrarian conditions prevailing at the time when the deal of Khaybar was concluded between the Muslims and the Khaybarites, must have higher degree of probability than the others. We also saw that this deal constituted a quasi-tribute but it had traits both of land tax proper and mitayage. This concept of quasi-tribute was primitive like that of the primitive tenures and was at an embryonic stage of development. The inter-pretations of this deal which were attempted at later times differed and even conflicted with each other because these explana-tions emerged out of their respective socio-economic situations and were primarily influenced by their juristic methods, attitudes and aspirations. In this context, although the nass or explicit text of the mdamala-Hadiths, as Abu kIanifa and Qac ‘Iyacl point out, does not necessarily warrant interpretation of the Contract of Khaybar as natayage, yet, this explanation inevitably under the changed circumstances and peculiar situation of 'Iraq and other places (from juridical point of view) became necessary and even beneficial for the Islamic state for obvious fiscal reasons.

Moreover, we have seen that the muzeirda interpretation of the agricultural Contract of Khaybar is, strictly speaking, contrary to the basic logic of qiyas. In other words metayage cannot be derived analogically from another parallel institution like that of mudaraba. This was the reason that Abu Hanifa and Ibn Hazm refused to apply analogical reasoning to this case. We shall take up this problem again in the eighth chapter when we study the application of qiyas and its inherent discrepancies in detail. We shall therefore confine ourselves here to pointing out that the incessant efforts of the Fuqaha' to employ qiyas and other related methods of ibaha and fasad are aimed at systematizing the customary tenures and buttressing the theory of muzaraà. They also take pains to demonstrate that the celebrated ban cannot abrogate the mu'amala of Khaybar and that it had indefinitely continued ever since.152

This interpretation of the Fuqaha' in its entirety would therefore seem to be a later development under the impact of historical events. We shall try to elaborate and confirm our

Analysis and Critique of Pro-Muzarda fladiths 101

hypothesis in the following chapters and discern the process under which the jurists, while facing contemporary economic situations on the one hand, and trying to do justice to the wel-

fare ideals of the 54harià, on the other, set themselves the task of finding coherence and systematization of the whole relationship

of the Sharra and the new situation embodied in the form of customary tenures. The interpretation of the deal of Khaybar

in terms of mitayage seems to have been influenced by the

contemporary social situation in which the Fuqaha' lived.

This interpretation is without doubt genuinely inspired and has its own inner logical justification. But if we accept this inter-pretation it raises more questions than it can answer. Why, for example, is there so much controversy among the Companions, Successors, traditionists and jurists on the issue of muzarda ?

Why does the text of the mdamala-liadiths not agree with the

Prodigious explanations put forward by the Fuqaha' ? Why were

the juristic concepts of àqd, ibaha, fasad, nadb, karaha and

rukhsa projected back to the earlier period? Why is the contract of Khaybar explained in terms of qaba/a-tenancy inspite of the fact that the latter was typically an old Persian institution ? Does it constitute a mere rationalization of the Umayyad and Àbbasid fiscal policies on the model of Khaybar, or in other words, legitimacy is sought for the customary tenure of muzara'a

on the authority of the Prophet and the Companions ? Do these different categories of landholding relate to different periods in history which were later put together by the compilers

of Itadith material ? And finally, why is muzarda particularly

attributed to those Companions who settled down in the newly conquered territories such as 'Iraq 7

One who studies this material cannot avoid the impression

that the mitayage practices of later times are being projected

back in the form of pro-muzarda Hadiths. Tfiis impression is strengthened when it is considered that these reports bearing different concepts relating to different periods and places are

put together in the Igadith collections. This confusion is further - enforced when we try to collate and compare different opinions

or iftihads of the Companions and Successors. The problem of


kharaj (and muzdra'a) for • this difference of opinion has been called by 'Ali ibn Muhammad al-Mawardi (d. 449/1058) a problem of utihad.153 The question may also be asked how far this rationalization was done with a view to solving the problem of the relationship between the Shari'a and the contemporary agrarian situation and hence to mould the Umma on a stable and coherent ethico-legal base ? The answer will be attempted in the following pages.

Most of the mu`limala-gadiths are based on the authority of Ibn Ùmar whose, ruffs' or retraction from land lease has also been confirmed by several sources. There is thus a deep and glaring contradiction between the two versions. The Fuqaha', aware of this contradiction, also try to resolve or circumvent it. They assert that there is no such discrepancy at all, for Um 'Umar's revocation is more due to his extreme piety than to the fact of an actual ban.154 Tahami even thinks that from this it can be inferred that Ibn 'Omar knew the fact that during the time of the Prophet lands were given on leases. Tahavel objects to th explanation according to which it may have been the case that Ibn 'Omar was only aware that people practised money-rents only and not grain-rents (muzdraà). Tabawi reasons that Ibn Ùmar does not mention any specific kind of deal, i.e., Money-rent, but that he merely acknowledge's that Raifi` was aware of the fact that lands were being rented in the time of the Prophet. Ibn tmar was not sure whether this was money-rent or muzara'a, and therefore, out of piety he gave up this practice altogether.155

The retraction of Ibn 'Timer occurred in the last part of Mu'awiya's Caliphate, that is, around 60/679-80 and Ibn 'Umar died in 74/693-4. This shows that as late as the last decades of the first century the problem of muzarda was strongly controverted and the people were engaged in this practice. This also implies that the practice was deeply rooted in the social structure. The ban therefore could be practically implemented in the limited and small community of the Ijijaz before the community-extended. Only in the small community can one till his own land or lend

it free to. his Muslim brother. Subsequent to the settlement of

Analysis and Critique of Pro-Muzdra'a Ifacliths 103

Muslims in new lands, growth of population, employment of money in land tenures, growth of individualistic tendencies and increase in demand4or more lease holds necessitated the legal

theories of qiyds and ijma'. The need for ijma` was felt to extend

concepts of tenure meaningfully but in a modified form so that no land as the main source of subsistence may be withheld and

thus wasted.156 So, in the economic interests of the Umma,

'ariya (free lending) came to be held to be recommended but not

morally necessary. Now, ijma' together with gilds become two

important instruments in the hands of the Fuqaha' to elaborate

and further develop the system of muzdra'a so that by virtue of

social necessity or clariira they tend to be integrated in the broad

framework of the corpus of jurisprudence.

Our enquiry of finding which of the two versions—anti-

muzara'a or pro-muzdraà —is earlier and more primitive has so far led us to discover more facts and considerations which make it necessary to qualify our original hypothesis with which we started our investigation, in two respects : the formulated

general and categorical ban on muzara'a and lease of land

(kira' al-ard) for money, in the first place, was mainly and essentially to prohibit primitive aleatory tenures which had

the main character of being al-mite/ma/at al-fcisida (irregular,

imporper economic transactions). The legal traditions which allude to the employment of money in these tenures with a view to legitimizing them, primarily seek to regulate actual rights and obligations of tenants and landlords. 57

Second, as stated, earlier, the general prohibition of muzdra'a

which was uniform and universal in its original intention and meaning, was applied to the limited Umma where lands could be given free to Muslims for cultivation. After the conquests, it may

be assumed, this general ban on muilira'a must have been inter-preted, modified and changed to conform to new economic needs and relationships which were quite different from those in the Flijaz. The Muslims were now migrating to the newly conquered lands, and non-Muslims were coming to the fold of Islam. Every-thing was in a state of flux. The ban gradually became inoperative and even detrimental to the interests of the Muslims. Now it


became an obligation on the Muslims in general and the jurists in particular to exercise their legal-intellectual faculty to account for the general prohibition of primitive tenures and derive new principles and laws of tenure from the material and the fact-situations of the Conquered lands. In this social context the

Islamic Jurisprudence developed the concept of benevolent rukhsa, equity or exception to the general rule of prohibitionin This exceptional law added a discretionary and humane element to the rigours of the generalized ban. In other words, this constituted a liberal interpretation and personal discretion,

which was, as numerous traditions show, adopted by some of

the Companions, Successor; and traditionists-jurists.159 The inherent difficulty was of course to determine the extent to which modification could be carried without damaging spirit of the original law of prohibition. Some of the Companions, as we saw earlier, gave their own discretionary opinions based on the

Sunna of the Prophet, while, others, like ‘Abd Allah ibn Ùmar, out of their piety and scrupulousness gave up all types of tenure including the primitive types. As we cited before, Sa`d ibn

Malik witnessed the controversy over buying of Kharaj land, but exercised his own judgment ; he brought a "dead" land to "life" and became its owner. A tradition of Sa`d ibn Abi Waqgas says : Sa`d relates that during the time of the Prophet

we used to lease land with the stipulation that crop on the irrigated areas of the field would belong to one and the rest the other. The Prophet forbade us from doing this. But he allowed us cocenssion, or Sa`d said the Prophet gave us rukhsa, i.e., he granted us exception to the general ban : that we could lease our lands against money.160

Further, it has been reported that some of the Companions agreed on the validity of lease of land for money, and that many Successors followed their practice in the amthr, new settlements

in the conquered lands.161 The traditions related by Ibn ‘Urnar, Abu Ja`far, Ibn Masffid, Ibn 'Abbas, Ibn Shin, al-Layth Ibn Sa'd and others all allude to the social need of benevolent interpret-

ation without which the Islamic legal systemwould have been

Analysis and Critique of Pro-Muzaraà fladiths 105

• stunted at the very early stage of its development. The notion

of rukhsa is not only embedded in the theory of muzara'a but

it is also extended th other institutions as well: The transaction

of cathyit (singular, àriya) is one of them. It is a transaction

of raw dates still on trees, for a measure of dry dates. It falls

under the general ban of muzlibana. This irregular sale of

lariiya was customary in ancient Arabia. There are several

Hadiths which indicate that these sales were exempted by the

Prophet obviously for benevolent purposes. For example, a palm

tree is gifted to some poor people for one year. These needy

persons are not in a position to wait for the fruits to ripen. They

are therefore given rukhsa so that they can exchange raw fruit

(without weighing them provided that this does not exceed the

weight of five camel loads) for a measure of ripe fruit.162

Exception was also gradually extended to buying of Kharaj

lands.163 As we shall discuss in the following pages, under the early Umayyads, as late as the last decades of the first century, large dynastic and crown lands were being formed. The concept

of common fay' of conquered lands was changed to that of state

fay'. Rationalizations and modifications were sought to make an exception to the rigours of the general ban on buying Kharaj

lands which was imposed by Ùmar I. It is reported that Sa`d ibn Abi Waqqas and Àbd Allah ibn Masffid who gave their lands on muzarda164 had also bought Kharaj lands on the basis

of rulchsa. 165

Conclusion

The, preceding observations have been directed towards showing that essentially there are two basic interpretations of

the general problem of muzisra'a : first, which must have been

earlier, as a matter of principle denies any validity of muzarcea in

Islamic law, ideally basing it on the banned primitive tenures

in the context of a small and limited Umma. This viewpoint

fundamentally considers all analogical deductions of the Fuqaha'

as incondite and inapposite. Nonetheless, after the territorial

extension of the Umma the general ban on the system of

primitive tenures tended to be humanely interpreted and modified


by the concept of rukhsa to conform to the demands of changed circumstances and social needs, without which the development of Islamic law would have been arrested.

The second explanation is a more systematic exposition of the validity of muzeira'a, more or less in all forms, and primarily based on the model of Khaybar. This version is partly supported

by the evidence that the Prophet never prohibited lease of

land in a categorical manner. This is a relatively later

conceptualization which belongs to the Umayyad period, for this theoretical structure of the system of mitayage contains in its fold many heterogeneous and diverse elements of Byzantine

and Sasanian origins which presuppose a much more developed

system of administration and fiscal affairs. For this reason this interpretation of muzara'a is elaborate and systematic in the juridical sense and much more developed in all its methodological details.

In the next chapter we will examine in detail the origin and development of the concept of fay' under the Prophet and its subsequent evolution under the early Caliphate. After this we

will study the general features and characteristics of the land-holding systems of the Byzantine and the Sasp.nian agrarian regimes in order to gain the necessary historical perspective and setting of our problem.

107

NOTES

1. Zurciani, Sharh.7vIuwat1 , IV , 344.

2. Bukhara, Sahib, kitab al-harth wa al-muzarda ;

Muslim, Sahih, kWh al-buya' ; PrObster, p. 389.

3. Ibn Ham. cd-Muhallil, VIII, 253.

4. Ahmed ibn Yahya. al-Baladhuri, Kitab Foul! al-Buldein.

Edited by M. J. de Gocje (Leiden : E.J. Brill, 1866), p. 27.

5. Qur'an. VIII : 42 : Abu Yasuf, Kharaj, p. 10.

'Abd al-Malik ibo Hisham, al-Sira (Cairo : Mustafa al-Babi, 1955).

See chapters on Ghazwa Badr al-Mla, and Ghazwe Badr al-kubra.

Muhammad ibn `Umar al-Waqidi. Kitab al-Maghcizi. Edited by

Marsden Jones (London: Oxford University Press, 1966), I, 98-100.

6. AM, Yasuf, Kharaj, p. 68.

7. Ibid.

8. Baladhuil, Fitibb, pp. 23-33.

9. Wont ibn 'Abd Allah, al-Hamawl, Kira() Wjam al-Buldan. Edited

by F. Wustenfeld (Leipzig : Deutsche Morgenlandische Gesellschaft.

1924), II, 503-4.

10. Ibn Hisham. al-Sira, II, 337.

11. \Magid', Kitab al-Maghazi, II, 692.

12. Ibn Hisham, al-Sira, II, 337.

13. Tabari, Ta'rilch, III. 15.

14. Abit •Ubayd, Amweil,.pp. 9,56.

15. Abu Yusuf, Xhardj, p. 39.

16. Ibn rlanbal, Musnad, IX, 182-3.

17. waqicu, al-Maghazi., II, 713.

18. Ibn Sa'd, Tabaqat, II, 113.

19. Abil al-Sunan, III, 140-141.

20. Tabari, Tairikh, III, 20-21.

21. Yahya, /Chat*, pp. 6-7.

22. Abu 'Ijbayd, Amwah p. 55 ; also. ibn Sa'd. Tabawit, II, 113-4.

Analysis and Critique of Pro-Muzara'a Idadiths 109

Ibn Hisham, at-Sira, II, 349-353.

Waqidi, al-Maghtrzi, II, 635-36.

Baladhuri, Fatah, pp. 28-9.

AbB 'Ubayd, p. 279.

Abis 'Ubayd, Atnwrif, p. 279. Some other reports which are contrary

to Abu 'Ubayd's viewpoint suggest that the Prophet had given grants

of land fromMmira or cultivated lands and from "dead" or unculti-vated lands. These reports are mostly based on the authority of such jurists-traditionists like Zuhri who worked under the Umayyads. Zuhri reports that al-Zubayr, Abu Bakr, 'Umar, Suhayl, and 'Abd

al-Rahman ibn al-•Awf received grants from the 'amira-lands of the

Bona Nadir (Sarakhsi, Shark al-Siyar, II, 611).


23, Shafi'1, Umm, IV, 192 ff.

24. Baladhuri, Fatah, pp. 24-25.

25. Abu 'Ubayd, Amwal, p. 56. Also see 'Abd al-Razzaq ibn Hammam, al-Mu fannaf, VIII, 102-103 1

`Abd al-Razzaq ibn Jurayj-'Amir ibn 'Abd Allah ibn Nustas reported about Khaybar as follows :

"The Messenger of God conquered it and thus all its arable land (harth) and date palms (nakhl) were entirely (Jam') for the Prophet. 'Amir says that (at that time) the Prophet and his Companions did not possess any 'serfs (ragiq). The Prophet therefore made an agree-ment (Saha) with the Jews which stipulated that the Jewish agricul-turists would cultivate and work and thus would get half of the

produce of dates as long as it was deemed proper by God and His

Messenger. At that time the Prophet sent Ibu Rawaha to assess

and determine the produce at Khaybar. When they were asked to

select their share, the Jews took dates. The Jews continued cultivat-ing Khaybar according to the Prophet's treaty of .9u(h till 'Umar's time who expelled them. The Jews told 'Umar that they were staying

in Khaybar because of their treaty of .903 with the Prophet on such

and such conditions. •Umar replied that the treaty was to be ful-filled as long as deemed proper by God and His Messenger, and now

it appeared proper to him ('Umar) that he must expel them. So he

expelled them and afterwards distributed Khaybar among the Muslims who had conquerred it with the Prophet. `Umar did not give anything to the people who did not take part in its conquest. At present its owners (ahtuha) are Muslims. The Jews are no more there.

Ibn Jurayj added that 'Abd Allah ibn 'Ubayd ibn 'Umayr had told him about the muqc-Kicit (settlement, treaty) of the Prophet with the Jews of Khaybar : it was stipulated that half of the produce of dates belonged to them (i.e., Muslims) and half to the Jews provided that the latter cultivated and worked the soil.

26. Malik, Muwa(ta', II, 893 ; Baladhuri, Futaib p. 29,

27. Sarakhsi, Shark al-Siyar al-Kabir of Shaybani. Ed. Salah al-Din al-Munajjid (Cairo : Matba'a Misr, 1971), II, 887-8. See meaning of the word faw(la in Lane's Lexicon VI, p. 2459, where he says that ?canal Khaybar fawcia means 'Khaybar was a common property'. See also Ibn Manzur, Lisan, v11, 210.

28. Ibu Hisins, al-Sira, II, 349-352.

29. (bid., and Waqidi, al-Maghazi, II, 680-690.

30.

31.

32.

33.

34.

35. See for a detailed discussion of this problem : Bali]) al-'Ali, "Muslim

Estates in Hijaz in the first century A. H.", Journal of Economic and

Social History of the Orient, II, 1959, pp. 247-261.

36. Baladhuri, maul! , pp. 23-26.

37. Bukhari, Sahih, kitab al-wisaya ; Abu Da'ad, al-Sunan, kitab

al-wisaya ; Nasa'i, al-Sunan, ihbas ; Tirmidhi, al-Jamic, akkam ;

Darimi, al-Stman, wisayci ; W. Henning, "Wail, " Encyclopaedia of

Islam, 1934, IV, 1096-1103.

Sarakhsi, Shark Kitab al-Siyar al-Kabir, I, 133.

Ibid.

Yaqat, Mu'jam, 1, 645-6.

Werner Schmucker, Untersuchungen, pp. 150.53.

41. Hartwig Hirschfeld, "Essai sur l'histoire des juives de Medine,"

Revue des Etudes Juives (Paris, 1885), X, pp. 10-31.

42. Ibid ; p. 30.

43. Van Berchem, La ProprMte territoriale et impO't fonder sous in

premiers citifies (Geneva, 1886),1). 15 ; Quoted by Prabster, p. 393.

44. Adolph Grohmann, "Khaibar", Encyclopaedia of Islam, 1st ed.,

1927, 869-870.

45. David Santillana, Instituzioni di diritto musulmano malichita (Rome:

Anonima Romana editoriale, 1926-38), I, 287.

46. Leone Caetani, Annali dell'Istam (Milan : Ulrico Hoepli, 1905-1926).

II, tome I, 21.

38.

39.

4J.


47. Abu al-A'la Mawdudi, Mas'ala Milkiyat al-ard fi al-Islam, trans., Muhammad 'AOm al-Haddad. (Kuwayt : Dar al-Qalam, 1969), P. 59.

Muhammad Tasin, another Pakistani scholar has come to the conclusion that Mdamala of Khaybar was not a metayage-contract ; it rather constituted a political treaty between the Islamic-state and its non-Muslim Atm/subjects. "Muzara'at Kiyan Najale ?" (Why is muzarda invalid?), Fikr wa Nazar (Islamabad, December 1975), pp. 460-462 ; for a detailed discussion see ibid ; (April, 1974), pp. 596.603.

48. Antoine Fattal. Le Straw legal des Non-Musulmans en pays- d'Islam

. (Beirut : Imprimerie catholique, 1958), p. 328.

49. Werner Schmucker, Untersuchungen, pp. 25-6.

50. A.J. Wensinck et al, Concordance et Indices de la Tradition Musulmane (Leiden : E.J. Brill, 1936), 11, 331-34 and IV, 377.

51. Bukhart, Sap:, kitab al-muzcirda.

52. Ibid.

53. Muslim, Siahih, kitab al-buyTt'.

54. Bukhara, $‘74i1f, kitab at-muearda.

55. Ibn Maja, al-Sunray kitab al-ruhan ; Ibn Hanbal, Musnad, IV, No. 2255.

56. Ibn Ham, al-M4v//4, VIII, 264.

57. Ibn Hajar, Fath, V, 409-410.

58. Malik, Muwattal ,11, 703.

59. Ibid., pp. 703-4.

60. Zuroni, Sharh Muweatas , IV , 34.

61. Ibid., IV, 342.

62. For juristic significance of takhris, see Zurgani, Sharh Muwa a', IV, 342-3, and 348; Schmucker, Untersuchungen, pp. 68-9.

63. Zurciani, Sharh, IV, 34.

64. Ibid.

65. Malik, Muwallas, II, 711-12. Zurciani, Sharh Muwallas, IV, 355-58. Rafi' was previously shown as telling 'Abd Allah ibn `Umar that the

Analysis and Critique of Pro-Muiltra'a Hadiths 111

Prophet had forbidden lease of land. Here Malik shows Raft' to have allowed lease of land against money by his own iftilfild, but

retaining the Pf.ophetic ban on lease against food.

66. Malik, Muwafta' , II, 712.

67. Zurqdni, Sharh Muwattd, IV, 358.

68. Ibn Qayyim al-Jawziya, Akkam ahi al-Dhimma (Damascus :

University of Damascus Press, 1961), I, 7.

69. Maurice Gaudefroy-Demombynes, Mahomet, p. 596.

70. Abu 'Ubayd, Amwal, p. 56.

71. Probster, pp. 384-86.

72. Zurqdni, Sharh Muwaffas , IV, 343 44.

73. According to Abu Yasuf (Kharaj, p. 50), Abu Hanifa based his own

theory on the following Eladirha which explicitly prohibit musaqat and

muzarda respectively :

(a) RAW ibn Khadij relates from his father who reports that one day the Prophet passed by an orchard (has i; ) and asked who its owner was. He replied that (for the time being) it belonged to

him as he had taken it on lent (istasjartuhu). The Prophet there-upon prohibited him from taking it on leass against a certain part

of its produce.

(b) Jabir relates that the Prophet reprehended inuzarda against one

third, or one fourth of the crop.

74. Tabari, lichtilaf, pp. 122-23.

75. Ibn Hazm, al-Muhalla, VIII, p. 267 ; Zurqdni, Sharh Muwattd, IV.

343. .

Th. Maxima Rodinson, Islam and Capitalism.. Translated from French

(Islam et Capitalisme, Paris ; Editions du Sett& 1966), by Brian

Pearce, New York : Pantheon Books, 1973, p. 64.

77. Zurqdni, Shari! Muwaftd, 1V, 343-44.

713. Tabari, Ikhtilaf, p. 124 ; Khwarizmi, Dine' MaSanid, II, 79 ff. Zurciani,

Shari! Muwaga' , IV, 356.

79, Waqidi, al-Maghazi, II, 640, 642.

80. Probster, p. 384.

18. Abii!Ubayd, Amwal, p. 97.

112 Landlord and Peasant in Early _Islam

82. Bukhari, Sahih, kitab al-muzara'a.

83. Abu (al-Sunan, III, 261) records a tradition related by sa'id ibn al-Musayyib who says that Ibn 'Limas did not see any harm in muzara'a till be heard a contrary tradition from Rafi' ibo Khadij. Ibn 'Umar then went to see him. Raft' related a Hadith to him which said that once the Prophet passed by the Bann Haritha and saw a standing crop on the land of zuhayr. He exclaimed, "What a beautiful crop Zuhayr has" ! Na was told that the crop did not belong to Zuhayr. The Prophet then asked whether the land actually did not belong to him. He was told that it was true that the land belonged to him but the crop belonged to someone else. The Prophet thereupon enjoined them to take hold of the crop and return to the tiller his expenses. Rafi' said that the crop was appropriated by them and the expenses of the tiller were given to him. Saild then concludes the narration by saying, "either lend (your land free) to

your brother, or lease to him your land against money."

84. Max Gluckman, Plitics, Law and Ritual in Tribal Society (Chicago : Aldine Publishing Co, 1965), p. 36.

85. E. Lane, Lexicon, V, 2158.

86. Mil Ynsuf, Kharaj, pp. 29, 50-52.

87. Ibid. In Ibn Hanbal's Musnad, (IV, 65 ; VI, 330; VII, 81 ; IX, 182-83), and Sunan of Abu Da'fici (III, 247-264), two other terms are used for this Deal, that the Prophet gave Khaybar to the Jews-qasama (numasarna), and qatala (nmala'a), for half of the produce.

88. Abu Yusuf, Kharaj, pp. 50 ff.

89. Tabari, Ikhtilaf, p. 123.

90. Abu Yftsuf, Kharaj, p. 50.

91. Ibid., p. 51.

92. Shaybani, Muwat fa' Malik (Cairo : p. 295.

93. Shafi'i., Kizab at-Umm, VIII, 102.

94. Tabari, /khtihif, pp. 120, 124.

95. kid; p. 128.

96. See for an excellent introduction to Ibn Hazm's general methodology by Roger Arnaldez in the Encyclopaedia' of Islam (2nd ed,), under "Ibn liazm", pp. 793-796.

Analysis and Critique of Pro-Muzlira'a Hadiths 113

Ibn Harm, a/-Multha, VIII, 261-62.

Roger Arnaldez, Encyclopaedia of Islam, 2nd ed., p.795.

Ibn Hazm, id-Muhalld, VIII, 215.

Ibid., p. 262.

Ibid., VIII, 247-263.

Ibid., pp. 247-264.

Ibid., p. 267. Hudhayfa conquered Dinawar, Hamadan, Rayy and Masbadhan in

22/642-3. 'Umar I appointed him governor of al-Mada'in. kludhayfa subsequently settled at Knits, and died in 36 A.H. (See for details, Ibn

Hajar, Tandhib, II, 219 ff.

10$. Ibn Harm, al-Mu/land, VIII, 247,ff.

106).. Ibid., pp. 250-51.

107. Ibid., p.251.

108. Ibid., VIII, 263-265.

109. Ibid., pp. 267-268.

110. Bukhari, Sahih, kitab al-muzara'a.

111. Ibn Hisham, al-Sira, II, 504-506.

112. Ibid., p. 507.

113. Ibn I-Iajar, Fatk, V, 406.

114. F. Peltier, Oeuvres Diverses (Algiers : Algiers University Press, 1949),

p: 10.

115. Bukhari, Sahih, kitab al-muzaraca.

Compare this tradition with qabala-lfadith attributed to the Prophet

and related by Alin Ja'far :

'Amr ibn Dinar (d. 125 or 126/743-4) says, "while we were sitting with Abil heifer, a man from a certain tribe asked him about qabala

(lease) of land, of date palms and fruit-trees. Abu Ja'far replied that the Prophet used to contract lands of Khaybar with its people, on the

terms of qabala, i.e., for half of the produce, on the condition that the Khaybarites would be responsible for protecting, irrigating and fecundating the fruit trees. As soon as the fruits would become sound enough, about to be plucked, the Prophet used to send 'Abd Allah ibn-Rawaha to assess the dates (still onthe trees). Ibn Raiwaha would make an assessment of the fruit and fix share of the Muslims. The people of Khaybar thus would pay to the Prophet the price

(thaman) of one half of the crop. During a certain period the Khaybarites came to the Prophet and complained that Ibn Rawaha had made an impartial assessment. The Prophet told them that the Muslims would abide by Ibn Rawaha's assessment (khars), If they

(the Khaybarites) wished, the Muslims would, pay to them the price

Lajna Ihya' al-Turath, 1967),

97.

98.

99.

100.

101.

102.

103.

104.


of their own share. The Khaybarites then agreed that the price must be equal to the price in the Muslims' hands, So they also agreed to division of the crop, and remarked that that was the real equity and justice on which stood the Heavens and the Earth. They accepted ibn Rawaha's assessment, took their share of the fruit and paid to the Prophet the price of the other half which belonged to the Muslims (Abu Yasuf, Kharal, p. 51).

116. Ibn Hajar, Tandlab, VIII, 403-404.

117. Ibn Hajar, Fath, V, 407.

118. Zayd Ibn 'Ali, Musnad Zayd (Beirut : Maktaba al-Hayat, 1966), pp. 283-84.

119. Superadded to the Hadith of 'Ali are Zayd's own words : "Muzarect is valid for one third, and one fourth share of land's produce, and for a period- of one year or more. Murara'a is legal whether work is done by a Stayer (muzari' ) and seed is supplied by a landowner ; or whether these are all provided by the muzari'-it is all valid in law. However, if the landowner tries to impose any arbitrary work on this sharecropper, the contract of mitayage will become /arid or irregular, rather null and void. (Iffizi). See also ibn Hajar, Path, V, 408.

120. Sce for a detailed discussion of this problem, Abu 'Llbayd, Amwat pp. 77-86, particularly, p. 84.

121. Ibn Hajar, Isaba, 11, 31.

122. Aba 'Ubayd, Amwat pp. 15-17.

123. IbId., pp. 78-80.

124. J.C. Vadet, "Ibn Mas'ild", in Encyclopaedia of Islam, 2nd ed., 1971, p. 874.

125. Joseph Schacht, Origins, pp. 231-32. 126. Abu Yasuf, Kharal, p. 35 ; Tabari, Tee rilch, V, 2376.

Abu tbayd, Amwat pp. 283-84 ; Ibn Hajar, Fath, V, 408. 127. See above pp. 20 ff.

128. Bukhari, Sahih, kitab al-muzarda. Another variant in Abu Da'ad, al-Sunan, kitab al-buyie, III, 258.

129. Ibn Hajar, Path, V, 423. 130. Bukhari, $ahih, kitah al-muzarala.

131. Abu al-Sunan, II, 261 ; Nasa'i, al-Sunan ; Ibn Harm, al- Muhalla, VIII, 255 ; Ibn Hajar, Path, V, 423.

132. Nasa'i, al-Sunart.

133. Muslim, Sahih, kitab al-buya'. 134. Bukhari, Sahih, kitab al-muzarcla.

Analysis and Critique of Pro-Muzara'a Iladiths 115

135. Bukhari, $ahih, kitab al-muzarda ; Muslim, Sahli! ; kitab al-buya' ;

Abu al-Sunan, III, 259 ff. ; Ibn Maja, al-Sunan, kitab al-rulin.

136. Ibn Hazm, al-Muhalla, VIII, 256-266.

137. Abu Al-Sunan, III, 258 ; Ibn Maja, al-Sunan, kitab a! I-Ethan.

138. Zayd ibn Thabit (d. 45/665-6) was an Ansari of the clan of Khazraj. He was one of the scholar-Companions, and was held in high esteem for his knoviledge of the Qur'an and the Hadith (Ibn Hajar, Inaba, I,.543-44).

139. Ibn Harm, al-Muhallci, VIII, 255.

140. Aba Da'ad, aj-Sunan, III, 262. Also see above p. 21.

141. Tirmidhi, Sahih, kitab al-buya`.

142. Muslim, Sahih, kitab al-buyas

143.-- Ibn Hazm, al-Mukalla, VIII, 255.

144. Bukhari, Sahih, kited, al-bap-4'.

145. Ibn Harm, al-Muhalla, VIII, 255.

146. Ibn Abi Shayba-Abu al-Ahwas-Tariq Ibn 'Abd al-Rahman-Sald ibn al-Musayyib-Raft' ibn Khadij says that the Prophet stated that only three parkins could till a land : a peasant-proprietor ; a person who obtains land free at cultivates it ; and a person who obtains land on lease for money.

According to Ibn Harm, this Hadith is doubtful, for this has also been related by Qutayba ibn Sald, and al-Fadl ibn Dukayn, and Sald ibn Mansur-all of them report from.Abu al-Ahwas who relates from Tariq ibn 'Abd al-Rahman. The latter reports on the authority of Sa'id ibn al-Musayyib to the effect that Rafi' had said : the Prophet had prohibited mulykala and muzabana. Rah' had said that only three persons could cultivate a land : a peasant-proprietor ; a person who obtains a land free of rent ; or a person who takes a land on lease for money (Abu a/-Sunan, 261). It is clear that the second part of this report was not part of the words of the Prophet, but Ibn Abi Shayba perhaps thought that the whole report was a Hadith of the Prophet. He therefore left the isnad intact and attributed the entire report to the Prophet (Ibn Harm, al-Muhalla, VIII, 258 ; also Muslim, Sahli!, kitab al-buys'.

147. Bukhari, $ahih, knob al-muzara'a ; Muslim, Sahli!, kitab al-buya' ; Shag', Risala, pp. 445-46 ; Tahawl, Sharp ilia'ani al-Athar, IV, 105.

148. Ibn Maja, al-Sunan, kitab al-ruhan.

149. Tahawi, Shark Malani, IV, 114-15. Mustkil, 292.

150. Baladhuri, Forq, 139.



152. Tanawi, Mushkil, III, 289 ; Shawkani, Nay! al-Awlar, V, 307.

153. 'All ibn Muhammad al-Mawardi, Kitab al-Ahkam al-Suffeinigya, edited by Maximilian Enger (Bonnae: spud A. Marcum, 1853), p. 246.

154. Abh Bakr Muhammad ibn Ahmad ibn Abi Sahl, al-Sarakhsi, Kitclb al-Mabstit, (Cairo : Matba'a al-Sa'ada, 1324 A.I-I.), XXIV, 13.

155. Tandwi, Mushkil, III, 289.

156. Ibn 1-.Iajar, Fath, V, 420.

157. See Bukhari, Sahih, kitab al-muziirda, particularly the traditions of Raw and others which suggest that aleatory tenures were common as there was no money at that time which could be employed in these ten u res.

158. Literally rukhsa means a concessional permission (derived from rukhs, a soft tbing). Technically it means concession given to a person when he is prohibited from doing it. Ibn Man?fir, VII, 40.

159. 'Omar I wrote to one of his governors : "God has given rukhsa in certain circumstances except in two cases, conduct of justice (aljadi fi al-sira) and remembrance of God (dhikr). In the latter there is no exception under any circumstance. Principles of justice cannot be changed for near kinsmen, or for strangers....(Tabari, Ta'rikh, V, 2370). Ibrahim ibn Musa al-Shatibi (d. 790/1388) defines rukhsa as a supplementary or superadded law which removes hardship. It constitutes an exception, istithna' to the originally formulated general law ('azima) which required a certain prohibition. This general law is modified to cater to social contingencies and needs, such as rid and musaqiit (Kitab al-Mustllaqat fi 'uzfcl al-Shart`a, Cairo : Maktaba al-Tijariyya, n.d., I, 301-304).

160. Al-Darin-1i, al-Sunan, kitab al-buyu'. Other variants in Bukhari, Math al-muzarda, and Baser, al-Sunan.


162. Malik, Muwattac II, 619-620 ; Ituthari, .5a7:/!, kitc7b a! muzarda ; Abu Datad, al-Sunan, III, 251-52 ; Ibn al-Athir, Jame', I, 464 ; Lane,

Lexicon, V, 2029 ; Joseph Schacht, Origins, pp. 153-54, 312.

163. Abu 'Ubayd, Amsvcil, pp. 77-86 ; YaljyA ibn Adam, Khardj, pp. 37-41.

164. Abu Yusuf, Kharaj, p. 51 ; Bukhara, .ahih, kitab al-muzarda.

165. Abb. 'Ubayd, Amwal, p. 78 ; Yanya ibn Adam, Kharaj, pp. 39-42.

CHAPTER III

THE CONCEPT OF FAY' : ORIGIN AND DEVELOPMENT

During the early period of Islam, that is, under the Prophet

and the early Caliphate, before the Great Conquests, muzzircea

was not encouraged by Islam's economic ethics as the Umma

was a close community. The concepts and practices of metayage

could, logically develop under the Umayyads as elaborate administrative principles. In the second place, in the early

period the, conquered lands whether taken canwatan (by force of

arms), or Fenian (peacefully, by treaty) were generally considered

fay' al-MuslimM, i.e., the "common" lands of the Muslims. These

were in the main kept undivided and made a permanent source of revenue for the common good of the Muslims. However, this

was not done in the context of an elaborate and systematic

institutional framework, for the diverse elements coming to form

the new order of things were very complex.

Under the Umayyads the concept of common fay' was

radically transformed. Closely related to this was the theory of

land-tax (kharaj) which was now, under the influence of the

Byzantine and Persian agrarian practices, interpreted as lease of

land or matayage. Simultaneously', common fay' lands were

interpreted as state lands. Consequently, the concept of fay'

and murtera'a were thus directly made interdependent and closely

related administrative principles of an autocratic regime.

In the present and the following chapters we will study the origin, development and the main characteristics of the concept

of fay'. We will examine the process under which this complex

transformation took place. The relationship of fay' and muziera'a

will also be delineated and defined.


The Starting Point under the Prophet

The Umma was not only a religious community but a socio-economic body and a political community too, which started its existence under certain historical circumstances. Under the active leadership of the Prophet it sought to conquer new terri-tories and occupy agricultural lands in the Arab Peninsula. These land resources were organized for the benefit of all. The total number of the Prophet's maghazi (singular maghza) the battles which he led himself and the saraya (singular sariya) the warring expeditions which he sent against different tribes was fifty-one.1 Only four of them concern us here—maglizi against the Banu Oaynuqa' in 2/623-4, Banti Nadir in 4/625-6, Band Qurana in 5/626-7, Khaybar in 7/628-9, and Fadak, Tayma and Qura al-'Arabiya in the same year. These conquests, as we stated before, involved agricultural lands which became an im-portant precedent for the Islamic state. Their treatment formed a basis for the subsequent theoretical formulation of the Fugahli'.

The Concept of Fay' 119

Uhud in 3/ 624-5. They also dallied payment of blood money for two men of an allied tribe who had been mistakenly killed by the Muslims. Banu Nadir were then besieged and exiled from Medina ; their lands were taken over by the Muslims.3

These lands became fay' of the Muslims to be exclusively

(khalisatan) administered by the Prophet (as head of the Umma)

for their common good.

The term fay' (literally ruffs"' or return of a thing) is derived

from the word 'afa'a which occurs in the verses 6 and 7 of Sarat

al-I/astir!' These verses have therefore been called by Abu

'Ubayd 'ayat a! fay', i.e., the verses of fay'.5

The fay' verses of the Sara (LIX) fall into two distinct

parts : LIX-7 and LIX-6, 8, 9 and 10, and belong to two different historical contexts but have more or less similar message

to convey : that fay' or conquered lands belong to all Muslims.

We shall now examine these verses in more details.. The verse 7

reads :

Whatever spoils of war God has given to His Messenger

(ma tall'a Allahu Rasulihi) from the people of the cities

(settlements) ahl al-qura, belongs to God, and His Messenger,

and the near kinsmen, orphans, the needy, and the traveller

(ibn al-sabil), so that it be not a thing taken in turns

among the rich of you. Whatever the Messenger gives you, take ; whatever he forbids you give over. And fear God ;

surely God is terrible in retribution.5a

This verse, as appears from the text, relates to the fay' taken

from the people of the towns or settlements (ahl al-gura). Who

were the ahl al-qurei ? 'Abd Allah Yfisuf 'Ali observes that the

townships were the Jewish settlements around Medina of the Dana Nadir and possibly of other tribes. He thinks that the reference cannot be to the Wadi al-qura which was conquered after the capture of Khaybar and Fadak in 7/628/9, unless this

verse is later than the rest of the Sara.6 Regis Blachere thinks

that the expression la population des cites not only applies to

the Baal Nadir but also to the Jews of the oases of Khaybar and

Fadak which were'called Wadi al-qura.?

Surat al-cashr and the Theory of Fay'

The verses 6-10 of the Quednic Sara (chapter) LIX are very important from historical and conceptual points of view. They define in very clear terms the concept of fay'-lands. According to this theory, fay' or conquered lands, more or less, belong to all Muslims/ in the capacity of their being members of the Umma : land actually belongs to the Community, the mem-bers derive their rights of possession to these lands from this collectivity. The Sara which consists of twenty four short verses relates mainly in its first part to the expulsion of the tribe

of Banu Nadir from Medina in 4/ 625-6. Before this another tribe Qaynuqie was also exiled at the end of the second year of Hijra, just after the battle of Badr.2

After the Prophet had migrated to Medina he concluded an agreement (salaha) with the Banii Nadir according to which both parties were bound to help each other against their common enemies. The Banft Nadir, however, broke the agree-ment soon after the Muslims were discomfited at the battle of


Richard Bell offers a more plausible explanation. He says that this verse 7 together with the verse 2 which mentions that God had expelled the unbelievers from their homes at their first

expulsion or emigration, li await 1-bashri, refers to the exile of

the Ban& Qaynuqa` in the year 2/ 623-4.8 Their booty of war was put at the disposal of the Mu/WV/rim and the Arzsar .9 If

this is correct this would mean that the fay' verse 7 belongs to the period immediate after the battle of Badr in 2/ 623-4. At any rate, this verse explicitly prescribes that fay' cannot be dealt with like the pre-Islamic way of distributing wealth. Now immoveable wealth was for God and His Messenger (i.e., the Muslim Community as a whole), the near kinsmen, orphans, and the poor, so that this was not taken over by the powerful rich of the Community.

The second category of the fay'-verses relates to the lands of the Band Nadir. These verses appear to have reinforced the concept of "common" fay', for they clearly state that conquered lands belong to all the three classes of the poor Muslims men-tioned therein,10

(Verse 6,)—"And whatever spoils of war Iwo 'afra Allahu) God has given unto His Messenger from them, against that you picked neither horse nor camel ;

But God gives authority to His Messenger over whomsoever He will. God is Powerful over everything."

(Verse 8)—"It is for the poor, i.e., the Emigrants ail fugara' al-Mulajirin) who were expelled from their habitations and their possessions, seeking bounty from God and good pleasure,

and helping God and His Messenger, those they are the truthful ones."

(Verse 9)—"And (for) those (poor) who made their dwelling in

the abode, and in belief, before them, not finding in their breasts any need for what they have been given, and preferring others above themselves, even though poverty (khasasa) be their portion. And whoso is guarded against the avarice of his soul,—they are the prosperers."


(Verse 10)—"And for those (poor) who came after them (wa

alladhina Ja'u min ba'dihim), they say, "Our Lord, forgive us and our brothers, who preceded us in belief, and put Thou not into our hearts any rancour towards those who believe. Our Lord, surely Thou art the All-Gentle, the All-Compassionate."

It follows then that there are two clear sets of directions for the disposal of fay' : one in verse 7 and the other in the verses 6, 8, 9, and 10,11 and both are historically later than the verse VIII : 42 (revealed in Badr in the second year of the Hijra, which lays down the method of dividing moveable chattels only as

there was no land involved in Badr.12

The point we have been making is that there is a clear historical development in the concept of fay'. The pre-Islamic concept of ghanima, according to which moveable booty was divided among the conquerors, was radically transformed after the conquests of these lands and after the Qur'anic revelations on fay'. "These fay'-verses suggest", says Mulimad 1bn 'Omar al-Zamakhshari, elaborating on this point, "that this category of ghanima, that is, lands, are not to be divided like

moveable chattels. The fay' rightfully belongs to the poor who need it for their basic necessities and their subsistence so that they are also enabled to lead socially respectable lives vis a vis those of the rich people who tend to amass and augment their riches by an exclusive appropriation of this fay'. If understood in contrast with the pre-Islamic social context of Arabia this means that wealth must not be divided among the rich only as it was the common praktice of maldistribution in the ancient period (al-dawlat al-Jahiliyya), in which the chiefs of tribes had exclusive rights over booty because of their political and military hegemony.

They used to say man 'azza bazza, i.e., right of ownership belongs to the mighty."13

Tabari tells us that this happened in Badr where the stronger and young Muslims carried away the whole booty by force. The weak and the old Companions then approached the


Prophet.'' This was the occasion when the Slim Anfal (Qur'an : VIII) was revealed : one fifth of the spoil was now set apart for the personal expenses of the Prophet as head of the Umma, and for other poor sections of the Community. The remaining four fifths was distributed among the fighters.15 When the booty was now divided equally some people, in view of the pre-Islamic usage of division among (powerful) conque-

rors, protested why one fifth of it was excepted and why a horse rider was considered equal to a weak and poor person. The Prophet replied that the weak and the poor were the real , defenders of the Umma.16 This shows that the Umma was rapidly growing into an economic regime. The general institu-tion of ghanima in this period tended to be systeriaatized to conform to the growing needs of the Community.'?

Before we examine, analyse and define the concept of fay', which has multiplicity of connotations, it is pertinent to see the distinction and similarity in the terms of ghanima and fay' in their literal, legal and historical contexts. For Th5.nawi, fay' means NM` or return of a thing, and in the legal termino-logy it 'means a land or property taken from the-non-Muslims and made over for the common benefit of. Muslims without taking any khums (one fifth) out of it. It is sometimes defined as a property taken from the unbelievers without fighting like

khardj and jizya—if taken after fighting it is called ghanima. It is also explained, continues Thanawi, that the concept of

fay' has broader connotation of any property taken from non-Muslims either peacefully or by force of arms—which ultimately becomes a public property belonging to the Bayt al-Mdl (Public

Treasury).10

In the early Muslim sources ghanima and fay' are used synonymously, but in the legal terminology of the Fugand', fay' generally came to mean conquered lands whether sullian or 'anwatan .via Ibn Hisham, Shaybani, Tabari, Waqidi, Abu

and lbn Hanbal—all record that originally the terms of ghanima and fay' were used interchangeably, generally, meaning booty which used to be divided among the-fighting Muslims, according to the pre-Islamic custom.19 Some incidents


relating to fay' (in the sense of chattels) are reported by these scholars.20 Once the Prophet was returning from his expedition to and the division of .booty was delayed. The beduins,

who were accompanying him, became impatient and demanded that the booty be at once distributed among them. They became so demanding that they almost drove him to a thorny tree in which his cloak was entangled. Upon this show of impatience for booty, the Prophet declared that if there were in the fay' as many animals as the thorns of that tree he would have all divided among them, for they were the real owners of that fay'. After he had divided the fay' he took a piece of camel dung and avowed by God that the fay' which God would give to them would not be permissible for him, nor even the piece of dung—except a fifth and even that fifth was for their own good.21

Ibn Isha'q gives a variant version. He says that this event relates to the captives and animal booty of ?unayn which were subsequently returned to their real owners as a token of kindness.22 However, the purport of the report is the same. The Prophet enunciated the policy that fay' did not belong to him but to all Muslims, the conquerors as well as others, as one fifth was also meant for.their welfare.

Tabari gives three categories of the juristic definitions of ghanima and fay' (a) that ghanima and fay' are different in conception. "Explaining the verses VIII : 42 and LIX : 6, the 'Iraqian 'Ata' ibn Sa'ib stated that the difference between fay' and ghanima was that the fay' applied to land taken 'anwatan from unbelievers, whereas chattels taken over were ghanima. The land of their Sawad ('Iraq) was such a fay'."

(b) Jurists like Sufyan al-Thawri hold that whatever is taken by Muslims 'anwatan is ghanima liable for a fifth—four fifths is for those who actually fight for it. Fay', on the other hand, is what is conquered sulltan (peacefully). It is not subject to a fifth, 1. e., it is not distributed among the con-querors. It belongs to those who have been specified in the Sura LIX : 10.


(c) The third class of the Fugal!te, according to Tabari, maintains that ghanima and fay' are synonymous, and that the verse VIII 42 has abrogated the verse 6 of LIX (that fay' is

for God and His Messenger). This means that after taking out a khums the rest of ghanima is necessarily distributed among those who fight for it.23

Tabari rightly rejects the theory of abrogation as meaning-less, for he says that there is no sense in simply rejecting one verse on the basis of another.24 Moreover, fay'-verses (LIX-6-10) are later than the ghanima-verse (VIII : 42) ; the latter

were revealed in 2/623-4. For Tabari, ghanima consists of null (goods, property) which God gave to the people of His religion (Islam) after actual fighting and by force of arms

(qahr) ; while fay' is whatever God made to "return" 'afa'a, to

Muslims from the land of polytheists (ahl al-shirk). It is taken

by them peacefully, by sti/1).28 In the juristic sense, therefore, the mode of acquiring fay' is important: sulb-fay' is taken peace-fully, it is not divided, but ̀ anwa-fay' may be divided.

Abu 'Ubayd says that ghanima are those 'anwa-lands which are distributed among fighting Muslims, and fay' are those ànwa-lands which are immobilized (nicnvqafa). The option is

.however with the Imam (public authority) : he may distribute

fay'-lands among Muslims, but if the public interests so demand he can make it a wag f (mortmain) for the general good of Muslims.26 We shall discuss this problem again when we come to the 'juristic theories of sull; and 'anwa lands. Whatever difference of opinion regarding the definition of fay'-lands, the Fttqaha' fundamentally agree that all conquered land comprises fay', and that if the general interests of the Umma demand these lands can be made mortmain or trust for the common benefit of all. "There is no khums in fay'-lands", says Abii Ydsuf, "that is, they are not divided, and according

to the verses LIX, 6-10, all the Muslims, who have been mentioned there, have common rights in these lands and towns. The verses do not concern the divisible ghanima

of the fighters ('asakir). The Prophet had left the conquered


Àrab cities (qura) undivided. He had conquered Mecca

ànwatan and there were properties and lands in it, but he did not distribute them. He captured (the lands) of

Qurayza 27 Nadir and other 'Arab territories but he never divided them except (the land of) Khaybar. In these

matters discretion lies with the Imam : he may divide as the Prophet did (in Khaybar), or he may not divide it as the Prophet did not distribute other lands, and as 'Lamar I did not divide the lands of Sawad, Syria and Egypt.28

Zuhri has related that 'Umar I had interpreted these verses that they comprised all the Muslims and that there was no Muslim left who did not have right in these lands.26 This

viewpoint which substantially distinguishes fay' of conquered

lands and fay' of divisible goods clearly goes back to the times of 'timer ibn al-Khattab. But its base was primarily laid out by the Qur'an itself and the concept was practically carried

out by the Prophet himself as Abu Yusuf and Yatiya ibn Adam

clearly state.30 However, no definitive formation of these principles was consciously set forth under the Prophet because

the Umma was not a very complex social organization as it later became under tmar I who clearly formulated the principle of immobilizing all conquered lands. Abu Ydsuf therefore conceptualizes fay' as tax on land, and fay'-land as those conquered lands which were made waq f for the common good of all Muslims.3 t

Tabari's Exposition of the Theory of Fay'

As we saw before, Tabari says that the term fay' is derived

from the Queinic verses LIX, 6-10, the word 'afa'a (fourth form from fa'a) means that God has made chattels and lands

return to the Prophet which formerly belonged to the people of the cities or villages (ahl al-qura). He cites Ibn 'Abbas who says that (as suggested by the verse 6) the Muslims were led by the Prophet against Band Qurayza and Band Nadir. At that time the Muslims did not, generally speaking, possess horses and camels. So these territories of Qurayza, Nadir, Khaybar, Fadak and qua 'Arabiyya were at the disposal of the Prophet


(in a special way). _ After the conquest of these lands the Muslims demanded their division among them. On this occasion these verses were revealed and it was explained to

them why the lands could not be divided among them, instead

other people were specified as beneficiaries of the land resources.32

As regards different connotations of the term fay' as inter-preted by the jurists, Tabari classifies them into four categories. First, by fay' the Futlahei' mean jizya and kharaj. Ùmar I had also interpreted these verses in a general and comprehensive

sense to include all the then present and future generations of the Muslims as beneficiaries of revenues accruing from these two main sources.

Second, the second group- of the Fuqahre interprets these verses meaning ghanima which falls to Muslims from their enemy after fighting (ànwatan).

Third, another group of the Fugalui' conceives of fay' as ghanima which Muslims capture after "driving their camels and horses", ijiif (I. e., fighting and conquering). Furthermore, these Fugaha' believe that in the beginning of Islam booty was for those who were specified in the Qur'an (verses 7-10 cited above),

in addition to the actual fighters who captured the booty. The Etiqabr think/ that these verses were subsequently abrogated by the Surat al-Anfol (VIII : 42) which had previously specified the beneficiaries of ghanima. (This viewpoint is erroneous for the reasons we gave earlier).

The fourth category of the Fugalur defines fay' as those conquered lands over which enemy makes a sulk-agreement

with the Muslims (and thus secures to itself rights of possession to the land). This, according to Tabari, is the theory of the later Fuqahfe.33

These four juristic definitions of fay' really represent three classes of jurists who have conceptualized fay' respectively in terms of (a) common property of all. Muslims ; (b) as divisible ànwa-land, subject to the discretion of the public authority,


and lastly, (c) as sulk-land which remains in the possession of

former owners, held in precarious tenure—virtually convertible

into private estates of Muslims after they are purchased or

appropriated by other means. We shall for the sake of simpli-

city and discussion call the first approach "collectivistic" and

the last two "individualistic". The collectivistic concept of

fay' seeks to make all Muslims share the sources of revenue.

This concept appears to be anterior to the other which belongs to a later period according to Tabari's own observation. The

individualistic theory holds that fay' is primarily divided among

individual Muslims who help conquer lands. We shall sub-

stantiate that this concept emerged gradually and crystallized under the Umayyads when related notions of private proper-

ty, state ownership and theories of rent and kharaj were sharply

redefined. Tabari's four definitions of the subject matter of

fay' are therefore very succinct statements. We shall henceforth define "common" fay'-lands in terms of all those conquered

lands which were either immobilized or on which land taxes

were imposed in order to provide stipends, and secure mainten-

ance allowances for Muslims and their families. By. "common"

fay' we shall also mean that land was not divided in general ;

instead it was left in the possession of former tillers. The ultimate lordship over land vested in the Umma.

After this general classification of the theory of fay',

Tabari, following Ibn Isbaq (Ibn Hisham, al-Sara, II, 194),) gives

his own judgment. He says that the verses LIX-6 and 7, in

their contents, denote different intentions and meanings as far

as the term fay' is concerned. He further says that the verse 6

alludes to the lands which were exclusively at the disposal of

the Prophet. No share from it was given to anyone. He

employed them at his own discretion reserving them for his own

expenses (i.e., as head of the Umma) and for the needy Muslims.

This seems to be the reason, Tabari adds, why later ‘Umar I refused to give shares 'from this land to 'Ali and 'Abbas as

inheritance of the Prophet.34

On the other hand, says Tabari, the remaining verses of


the Sara LIX refer to Muslims in general who have equal rights in these lands which could not be allowed to be appropriated by (a few) rich people.35 He further explains that by the verse kayla yakana dillatan bayn al-aghniya' minkum (LIX-7), God says that he has made this fay' return to the Prophet from these lands so that it is spent on all the categories of people in order that the fay' does not circulate only among the rich of the Muslims. But now God has instituted a novel sunna (practice) which will not be changed with another.36

From this discussion it follows that in a general sense all the above-mentioned verses of Sara/ al-Hashr imply that fay'-lands are common property of the Muslims and are used for their gen-eral good.37 The concept of fay' acquired great significance after the territorial expansion of Islam immediately 'after the death of the Prophet in 10/631-2. It is possible, as we have Said before, to delineate a gradual development of the concept from the earliest conquests by the Prophet of the lands of Qaynuqa` and Band Nadir to the conquest of Sawa(' and other lands by 'Umar I. Lokkegaard apparently overlooked this development in the theory and practice of ghanima and fay' in the historical contexts of Bath (2/623-4), Qaynuqa' (2/623-4), Band Nadir (4/625-6), Band Qurayza (5/626-7), Khaybar (7/628-9), and Mecca (8/629-30)—which clearly underlines an evolutionary process under which the pre-Islamic concept of ghanima radically changed to the concept of "common" fay' in which all classes of Muslims had their rights.

Bell thinks that because of the emerging political contingen-cies of the Umma, it looks as if the Prophet had at first meant

to claim the disposal of all the spoils taken. He also says that the word ibn al-sabil in verse 7 (LIX) must be taken in the religious sense, i.e., any person who accepts Islam and comes to join the Umma and not in the ordinary sense of a traveller.38 Lokkegaard simply assumes the notion that fay' was not a common, land of the Muslims and that it did not originate under the Prophet. He says :


Ùmar I is made a spokesman for the principle of the

indivisibility of fay' and its being mortmain, waq f, of the

State. This, of course, is a far later development. The vindication of this attitude which is put into his mouth by systematists of posterity, is based upon their special

interpretation of the phrase of Sara LIX-I0 "and they who

came after them", which is torn of its context, where it is

used of those who migrated when Islam had strengthened

itself, and is understood as referring to the whole of posterity

which will have its share in' the privileges attained by the conquest, so that these should not be kept for the profit of

a small minority. This is the argument for fay' being made

State property which is attributed to Òmar in all the passages concerned. Even the most destitute shepherd shall

not be deprived of his share.39

Lokkegaard's basic thesis is that those traditions which

favour the concept of callective fay' are of a "secondary nature

forged only to support certain legal hypotheses" of the later jurists. He thinks that the conqured lands were initially divided among the conquerors, and that the idea of the inalienability of fay'-lands grew at a later stage, in the wake of the Umayyad fiscal policies. Furthermore, he holds, that the institution of

fay', in reality, was introduced by 'Omar ibn Àbd al-Àziz.49

Werner Schmucker, following Lokkegaard's main thesis on

fay', observes that there is no true relationship between the word

'afa'a of the Qur'an and the term fay' of the jurists.41. The

concept of fay', he maintains, is rather a later product of the systematizing ideas of the jurists, who rationalized this institution of the Umayyad administration for the purposes of the state, while retaining the primitive and original sense of the word

intact.42 In particular, Schmucker casts his doubts on the tradi-tions which concern immobilization of conquered lands by Ùmar I. For example, he finds unconvincing the tradition of Muldh ibn Jabal, recorded by Abu Ùbayd;which says that Muldh had suggested to 'Omar that he should not distribute the conquered lands; for, he had expressed his fear that in that case the land Would be appropriated by a few people and then, when other


people would come after them they would find their way blocked and thus would be prevented from serving Islam (thumma y(1'0 min ba`clihim qawmun yasudclana min masaddan).43 Schmucker calls all such traditions as of "man ba'dahurn-Afotiv", and thinks that they are supplemental, or added at a later

period, and thus wrongly associated with the verses 7-10 of Sara LIX.44

That the term and the condept of fay' have no true relation-ship with the Qur'an is a highly misleading and, scholarly

speaking, dogmatic notion. The evidence, as we shall presently see, in favour of the theory that fay' was from the very beginning of Islam a common fay' of all Muslims, is so abundant that even a careless reader of the early sources cannot avoid this compell-ing conclusion. Not only have the jurists but almost all the historians, like Ibn 'shag, Baladhuri, Tabari, and the traditionists and commentators of the .Qur'an set out clear evidence that 'Umar ibn al-Khattab made the conquered lands waqf or common fay' of the Muslims, basing this policy on the verses of the Qur'an. And there is no disagreement on this point among the Muslim scholars. The Qur'an, however, does not clearly state that fay'-lands are collective property of the Muslims, for the idea definitively emerged under 9.Imar I when vast lands were conquered for the first time ; we shall discuss the land policy of 'Umar in the fifth chapter, presently we shall make

some observations about the meaning of the verse, wa alladhfna pia min ba`dihim (and those who came after them).

Tabari comments that by this verse are (literally) meant those Muhajirtin; or Emigrants, who came after the earlier Emigrants (al-Muhajiran al-Awwaltin). . Another view, he says, is that "those who came after" refers to those people who became Muslims after those who made their dwelling in the abode (tabawwa'a al-clara)—the Ansar.45 Tabari gives a tradition of Hasan al-Basri (d. 110/728-9) who relates from Mujahid (d. 102/720-721) that the latter had interpreted the verse meaning

those who became Muslims (afterwards) are covered by this verse. Another tradition from Qatada (d. 118/736-7) suggests that this verse forms the third category of the Muslims (who are entitled of the fay'). Ibn Abi Layla (d. 148/765-6) was also


of the opinion that Muslims are of three types : first, al-Muhaji-

ran al-Awwalun, the first Emigrants ; second, those Muslims who

followed them ; third, those who came after these.46

It seems that the interpretation of the verse47 which

Lokkegaard and Schmucker have given is based on the com-mentary of Baydawi (d. 685/1286-7). Schmucker has obviously rejected the last interpretation of Bayclawi, for it negates his hypothesis.48 He selects that which fits his thesis. It must be

acknowledged that man ja'a min ba`dihim-traditions may be interpreted in a very strict historical context, meaning those Muslims who had later emigrated to the amseir, settlements or towns, to wage wars and thus become entitled to allowances and stipends which were coming from the conquered lands. This

assumption, then, would make the fay' theory appear as a rationalization of 'a later period. If this hypothesis is modified to the extent that although fay' was an original and primitive concept, it Was radically changed by the Umayyad and 'Abbasid Caliphs and their governors to suit their own policies of aug-menting dynastic estates and state revenues, it will appear more probable and will have more validity for which corroborative evidence is more abundant than for the former hypothesis. Our view is that there was a gradual development of the concept of fay' and that its essential function and raison etre remained the same from the conquest of Bann' Nadir to the capture of the Sawad and other lands. The only difference was that in the former case the concept was not yet very clear, whereas in the latter case the theory became more and more definite, having distinct and certain characteristics. The elaboration of Tabari, as we have seen, shows that the concept of "common" fay' of Muslims was originally derived from the explicit verses of the Qur'an. This s,unna or practice, as Tabari explains, was a clear break with the/pre-Islamic custom of dividing war booty among the rich and powerful persons only. This was a new and radical economic institution which was generally termed as fay' of the Muslims—this was in order to pre-vent the concentration of wealth into a few rich people's hands, kayla yakuna dhalika a! fay' dulatan yatadowiluhu al-aghniyavo


From the case of Band Nadir, Lokkegaard infers that the Prophet regarded fay' as his Wiya,50 or his personal property,53 and that it was to go to the Prophet exclusively to be used for the ultimate benefit of the Muslim society.52 But the land was not a private property of the Prophet. It belonged to the Umma and the Prophet was a mere administrator. Lokkegaard also contends that originally the term fay' did not connote "common property of the Muslims", but it merely meant capitul-ation, and that common property is a later development.53 This view has no justification for it ; originally, fay' meant both land and chattels which "God made return" to the Umma. After the conquest of Band Nadir a distinction was made between fay' as land—becoming more or less a common property of Muslims, and fay' as chattels. The former interpretation was also given by Ùmar I when he made the newly conquered lands wag f or public trust. In the case of Fadak and Khaybar, however, as the very historians and traditionists tell us, the Prophet kept some land for his family expenses bilt most of the lands were reserved for the good of the Muslims. This was in contrast with the ancient pre-Islamic custom. This new policy of not dividing the lands had provoked strong protests from some people. There was thus a clear development of this concept which later culminated in the economic policies of 'Dinar I. This concept of "common" fay' must not be taken in the modern politico-economic sense of collective control over production and dis-tribution of goods and services in contrast to free enterprise. For this interpretation would amount to a tendentious F.nd pre-conceived intention to force the sources to support a particular viewpoint, which, if the facts were allowed to speak for themselves, would be revealed to be invalid. By common fay' we mean immobilization of land for the common interests of the Umma. This new formulation of Ùmar in not dividing the conquered lands signifies an attempt to make the whole Community share the benefits flowing from these lands.

At any rate, the concept of fay' originally envisaged four

broad categories of recipients (of fay') :

1. Allah and His Messenger (i.e., the Umma in general),


the kins, the orphans, the poor, and the way-farers (or fighters) to check "the circulation of wealth only among the rich".

2. The destitute Muhlijirisn who had left all their possessions behind in Mecca after they had emigrated to Medina, where they

were putting up with the Ansar.

3. The Ansar who were sharing their wealth with the

Emigrants.

4. Those who came after them (wa alladhina yea min

ba`dihim.) This verse, as we discussed before, clearly refers to the people who are to come later and may mean the future generations, as Òmar interpreted it. This clearly implies that division of land among the present individuals will exclude the

future generations from their benefits.54

We shall now examine the land policy of the Prophet in general to discern whether it is linked in any way to the policy of Wmar I. The traditions .which relate to the former fall into three types : first, the traditions which suggest that the lands like those of Band Nadir and Fadak were not divided but

belonged to the Umma as a whole. Second, the traditions which show that these lands belonged to the Prophet in a

special way, khassatan. Third, the reports which say that some

lands, particularly that of Khaybar, were divided, or they were partly divided and partly not..

Land Policy under the Prophet in General

Ibn Isljaq tries to solve the complexity of this problem by

dividing the verses of the Sura LIX into two parts : he begins

by saying that verse 6 refers to the land of Band Nadir which

became khoissa of the Prophet, which he had later given to the

destitue Emigrants and two Ansar who were very poor.55 The

following parts of the verses, says Ibn Ishaq, refer to the fay' of

ahl al-qura, the lands taken by the Muslims lanwatan generally

belonging to God and His Messenger and to'the people specified in the verses. Waqidi gives a detailed account of the fay' of

Band. Nadir. He tells us that the Prophet suggested to the

Ansar that he was going to divide the land among the Emigrants


only because at that time the latter lacked any permanent

source of income. To this the Ansar gave their consent and the

Prophet divided the fay' among them and the Ansar.56

The Khassa Lands

Khassa, or the exclusive lands of the Prophet are of three

types : first, Fadak and the land of Band Nadir and all the goods therein which "God had returned" to him without war. Fadak

was reserved for poor travellers who used to sojourn with

Muslims. Second, saffy or safiya which the Prophet had selected

from the booty before it was divided among the Muslims. Third,

one fifth of the khums of booty.57 As we saw earlier, Baladhuri

says that the Band Nadir made su/k with the Prophet and there-

fore left all their lands, date-palms, and weapons for him—these

lands therefore became exclusive or khalisatan for him. He used

to get the lands cultivated every year and thus get food for his

family ; anything surplus over his needs was spent by him in

purchasing horses and weapons.58 Tabari also records that they

were khassa for the Prophet but he divided them among the

Emigrant, and two men from the Ansar.59

Baladhuri also gives• another tradition which' is related by

Ibn Shihab al-Zuhri. Zuhri says that 'Omar I said that for the

Prophet' there were three safaya : lands of Band Nadir, Khaybar

and Fadak. The land of Band Nadir was Nabs (or wan for

his expenses on contingencies (nawa'ib). Fadak was kept for

poor travellers (or fighters). Khaybar was divided into three

parts, two of which were subdivided among the Muslims, the

third he retained (habosa) for himself and for his family's

maintenance. What was surplus to his needs he gave to the poor

of the Emigrants and the Ansar.80 This tradition has been

attributed to Zuhri in the sources characteristically suggesting

that these three lands were safaya or an exclusive personal

property of the Prophet, and on the basis of his discretion, he

had given apart of them to the poor Muslims.

This safaya theory, which essentially makes the political

ruler owner of all conquered land—a sort of etatism—seems to

be a late development under the Umayyads who laid claims to


the lands of Sawad, Syria; Egypt and others as their personal

property and tried to change the status of the lands which were

formerly made inalienable fay' of all Muslims. Such traditions

make Lokkegaard conceive that the theory of inalienable common

fay' is a late development. The fact, however, is that this concept

is original, and in its essential meaning of wagf-land, goes back

to the Prophet's own times. Furthermore, the report of Zuhri

falls ,in line with his concept of fay' which favours distribution of Mmva-fay' among the conquerors only. It must also be noted

that Zuhri, among the traditionists, was particulary pro-UmayYad.61

Yaqat (d. 626/1228-9), though late has given a more thought-

ful and a clear picture of this problem. He is critical of this

watertight classification of sulk and 'wilco fay'. He criticizes in particular the Shaine conception of fay' as land of polytheists which falls to Muslims without fighting ; 'the enemy is either

expelled or a treaty for taxes is made with him. He attributes

this theory to the Shafilite Abu Mansur al-Azhari (d. 370/980-981). For Yaqat, fay' is fundamentally a property of unbelievers

which returns to Muslims either after fighting or after a peace

agreement, It is equally irrelevant-whether it becomes kheissa of the Prophet or 'ammo (common, general) of the people. As far

as the verses of the Qur'an (LIX, 6-10) are concerned, Yaqut puts

.forward a more plausible view, namely, that they merely describe

what really happened in the case of Band Nadir. This

constitutes no evidence for making grand conceptualizations about fay' being divided into main types of sall.-1 and Mnwa. If the fay' of the Band Nadir had fallen because of ljelf; after "driving horses

and camels", as in fighting, and if it had been 'donna of the

Muslims, these verses would have prObably mentioned that

"Whatever God had returned to the believers (and not "God and His Messenger"), from people of the cities." It follows then, says Yaqat, that the fay' returned" to the Prophet without

fighting. This proves that fay' takes its birth under the circum-stances of a peace agreement (sulk). However, both these methods, i.e., Mnwa and sulk would have the same effects as the presence of force will not nullify the actual effects: So the


necessarily adequate explanation of these verses would be that

God made the fay' return to His Messenger from the people of

the cities, and it should be understood that this returnted with-

out fighting 62

Yaqut is here making the point that this fay' was taken

without actual fighting ; he criticizes the theory of Qudama (ibn

Ja`far) that fay', in general, is taken from the enemy after fight-

ing and made waqf for Muslims and then every year

stipends are paid to them from the revenues of kharaj imposed

upon it. Yaqut therefore does not appear to agree with the

theory which neatly classifies fay' into ̀ anwa and sail,. For him,

the correct view would be that fay' belongs to Muslims in the

form of annual stipends from revenues of kharaj or jizya irrespec-

tive of whether, like the case of Nadir, Wadi al-qura, Fadak,

lands were taken sulkan, or like the land of Sawad, they were

conquered canwatan. Both the categories of sulk and 'anwa—Nadir

and Sawad—are equally fay'. The essential difference for him

between the two is that lanwa fay' belongs to Muslims in general

and is divisible among them, like that of Khaybar,while the sulk

fay', like that of Fadak and Nadir, is at the personal discretion

of the Prophet, or after him of the /mam.63 Yaqiit calls the land

of Khaybar land'of ghanima, for he thinks that it was divided

after taking out one fifth out of it. On the contrary was the

case in the Sawad.64

The theory that these lands were khassa of the Prophet is

therefore a late development. We will corroborate this when we

will examine the land policy of the Umayyads. Indeed, this view of khassa is both contrary to historical facts and anathema to

the concept of common fay'. The view that God and the Prophet

are the real owners of this land is not a metaphysical or theologi-cal concept but a social and economic reality which is very central

to the whole theory of fay'. Abu Da'ad records a highly signi-

ficant Hadith related, by Abu Hurayra which states that the

Prophet had resolved to expel the Jews of Medina from their

lands. He came to them and declared that the land belonged

to Allah and His Messenger, al-and li-Allahi wa Rasalihi.65 The


expression Allah and Rasa! (His Messenger) has great significance; it symbolizes and means the leadership and authority of the Umma in the political and economic sense, i.e., the Community as a whole has the overriding interests in matters of general

welfare. This expression is often used in the Qur'an in the above sense.66 The clear implication here is that there is no other owner of this land but Allah and the Muslim Community headed by the Prophet.

There is strong evidence that the Prophet never left any khassa or any private estate after his death ; whatever he left was a sadaqa (a charity for all). Even Fadak was a trust for the Poor travellers.67 Also as Abu Hurayra has related, the Prophet had said : "There is not a single dinar for my heirs, whatever is left after catering to the maintenance of my wives and the 'amihin6s (tillers) is sadaqa for the poor." Abu Da'ud also records that according to _Abu Bakr one fifth of Khaybar and Fadak was sadaqa left by the Prophet.69

Fatima, daughter of the Prophet demanded from Abu Bakr

her part of the inheritance which the Prophet, after his death, had left as his share in Khaybar and his sadaqa in Fadak. The sources unanimously record that Abu Bakr refused to comply

with her claim, because, according to the Prophet's own saying these shares in lands merely constituted Warn (food-shares) which God had granted him only during his life time : after his death these tu'am actually belonged to Muslims, as administered by the Prophet's successor, wall al-'amr (ruler, incharge).79

If this tradition is correct, it throws ample light on the issue.

The shares of the Muslims in the so-called divided lands were tu'am—stipends of food—during their life times, afer their death these reverted to the Community which was the ultimate owner

of all conquered land. This tradition is also a strong evidence for the theory that fay' lands were not divided—at least not on mass scale, as is generally held. We also saw that Fadak was a fay' and a trust for travellers. According to Ibn 'shag, the

people of Fadak, just after the conquest of Khaybar, made sail.; for half of their lands. It became khalisa of the Prophet as "no

, - -


camels and horses were driven against them", i.e. no fighting had taken place.71 '

We shall now examine the reports which relate to these lands so that we can come to a more decisive conclusion. Waqidi tells us that, when the Jews of Fadak heard about the fall of Khaybar, they offered peace on the condition that they be let go in peace and their lands be taken by the Prophet. It is also said that they offered to be exiled and that they would retain the rights to their lands so that they could come and gather the fruits after they had ripened. The offer was not accepted. And finally the su/h took place which stipulated that the Jews would retain half of their land with its soil and the Prophet would have

the other half. Waqidi thinks that the latter report is more authentic. They were, therefore, resettled on the lands. When they were exiled by tmar they were paid half of the price of date-palms along with compensation for half of the soil—the total amount being 50,000 dirhems or more which came from `fraq.72 The people of Khaybar were also expelled by Ùmar but were not paid any compensation. This clearly shovis that they were considered mere subdued usufructuaries in a special way bound to pay half of their produce to the Muslim community

as a tribute. Their anomalous agreement was easily terminated by Ùmar without paying them any indemnity.

A tradition related by Zuhri and recorded by Bukhari, if correct, gives a good exposition of the land policy of the Prophet. This relates to the dispute between Wmar, 'Ali and 'Abbas

about the fay' of Bana Nadir. Àli and 'Abbas had petitioned to Ùmar for their share in the inheritance left by the Prophet. Ùmar explained to them that (part of the) fay' of Banff Nadir

belonged to the Prophet in a special way, being different from shares of other Muslims, for it was a sulk fay' and thus a

Khassa of the Prophet, which he had never made it his own pri-

vate property to the exclusion of other Muslims, that is, he never

created any monopoly out of it (ista'tharaha) in order to deprive

other Muslims of its benefits ; he gave it to the Muslims and

divided it (as shares.?) among them. Only a part of it was with


him for his maintenance, while the remaining produce he used to spend for the welfare of other Muslims. This policy was followed by Abu Bakr and himself.73

This khassa-fay' of Fadak was made safiya or Crown land by the Umayyads for the first time. Marwan ibn al-Hakam (64/684-65/685) granted it as a private estate (iqta` ) to his sons 'Abd al-Malik, 'Abd al-'Aziz and their' descendants and finally it became Wei' of Ùmar ibn 'Abd al-'Aziz who requested al-Walid (86/705-96/ 715) and Sulayman (96/715-99/717) to give up their shares in Fadak to him. Having acquired the ownership of all Fadak, Ùmar II then restored its income to its original purpose, the upkeep of travellers.74 It is, therefore, highly probable that this khassa and safiya theories of Crown lands were developed by the Umayyads, as these reports suggest that these lands were not khassa of the Prophet in the sense of their being his private and personal property, they were khassa in the sense that they were exclusively at the disposal of the Prophet who used them for the general good of the Umma and also for his family's mainte-nance. His own shares from these lands consisted only of food share during his life time. Bukhari records that according to the verses LIX 7-10, the fay' of Banfi Nadir was at the exclusive disposal of the Prophet in as much as he used to spend every year on the maintenance of his family while the surplus income

was spent on buying weapons and horses, that is, for the defence of the Umma.75 It is also reported that a certain rich Jew of Band Nadir named Mukhayriq died and left seven orchards of date-palms for the Prophet who did not make them his private

property but made all of them sadaqat for all Muslims.76

According to Waqidi, lands of Barra Nadir were not divided and no khums was taken as was done in the case of Badr ; they were khalisa for the Prophet, but he gave some' to the needy people while retained some for his own expenses. His revenue collector for the lands of Banff Nadir used to bring fresh fruits for him. Waqidi also mentions in detail how the lands of

Qurana were divided among the Ansar.77,. According to Ibn

Sa'd, again, the lands of Band Nadir were sally and khdlisa for

the Prophet in the sense that they were immobilized, i.e., made

4

140 Landlord and Peasant in. Early Islam

nabs for his expenses ; no khums was taken and no share was given to anyone.78 We will conclude this discussion with the observations of Abu 'Ubayd who recapitulates all these versions in a succinct manner and precisely delineates all these strands of the fay' theory.

In his classification of the Prophet's khassa of Fadak, Band Nadir and his sally and khums al-/chums (fifth of the fifth), Abu 'Ubayd remarks that these lands and shares belonged to the Prophet during his life time only. When he died they were transformed into three distinct categories of fay', khums and

sadaqa, according' to the injunctions of the Qur'an and the Sunna ; and this practice was followed by the Caliphs. 'Umar applied the same policy when he interpreted that all conquered land (like that of the Sawad) belonged to Muslims in general : he had appealed to the Qur'an (VIII: 42 and LIX : 6-10). He there-fore declared that these verses covered all Muslims—none was left

1 out from sharing this wealth because everyone equally shared it, even a shepherd from the remotest corner of Yemen had an equal share in the land.79

Abu ‘Ubayd, however, also tells us that some Companions, like `Abd Allah ibn Masud, gave a different interpretation of the fay' verses : he said that "God had apportioned these lands of the Persian and Byzantine Empires before 'they were actually conquered by the Muslims."80 Further, a 'Path of the Prophet was also interpreted in a similar sense :

Abu Hurayra relates that the Prophet declared that any village (or town), which the Muslims came to conquer by sulk, had their shares in it, and any town, which they con-quered after fighting, belonged to them after a fifth had been deducted from it.81

We shall discuss this problem again in the sixth chapter.

For Abu tbayd there are three factors or components of fay' : jizya and kharaj or taig ; wazifa (a fixed amount of tax which does not depend on the crop) of sun, ; and lastly, the commercial taxes on the dhimmis or enemies krom dar i.e., the enemy territory—this is all fay' and belongs to the Muslims in general.82


Lands Reported to have been Divided

There are conflicting reports about the land of Khaybar, as we have already seen. Both the historians and the Fuqaha' agree

that it was a fay' for the Muslims, but they disagree as to how it was done and, further, as to how it was acquired—whether sulhan

or 'anwatan —and the two are interconnected. The difficulty arises

because the Fuadlur discuss this problem from their own legal hypotheses, and it is not often easy to distinguish between a fact and an opinion. Anas ibn Malik and Zuhri report that Khaybar was taken 'anwatan, while Malik relates from Zuhri who transmits from Sa‘id ibn al-Musayyib that it was partly sullsan and partly canwatan.83 The possibility cannot be ruled out that some lands were distributed among the Muslims, for example, some land

grants were given to some people probably in order to develop "dead" lands. But this much is clear that fundamentally the conquered land was, generally speaking, fay' meant for the

common good.

This point needs further elaboration. We saw that accord-ing to some reports in Ibn Hisham, food shares were distributed ; they were given to all, not to the fighters alones4 Tabari says. that Khaybar was captured partly 'anwatan and partly sulhan.85 yaqut concludes that half of Khaybar was waqf for the Muslims, and half was divided. From such a fragmentary evidence no consistent theory of the Prophet's land policy can be made. However, it must be stated that the collective consciousness and common ideals which permeated the Muslim Community could not allow distribution of land among individual Muslims on a large scale. Probably this is the reason why muzara'a, like ribs (usury) and on its analogy was not allowed by the ethics of Islam.

In the light of the foregoing, the reports of Baladhuri and

Tabari that `Umar I divided the lands of Khaybar in 20/640-41 among the Muslims (giving them raqabat al-artl, i.e., possession of land) according to their shares, are difficult to understand.87 This policy of ‘Umar, then, would clash with his general land policy

of not dividing the lands in 'Iraq and elsewhere. The question


then arises as to why Ùmar followed two different and con-tradictory policies. If these reports are correct, it is possible to hold that, when lands in 'Iraq and elsewhere were made waqf-property, these were thought sufficient for the purpose and that older and smaller waqfs could be liquidated. But this does not fully answer the difficulty.

Another explanation could be offered that tmar probably distributed what the Prophet had already divided in terms of food-shares. Some reports suggest that the Muslims used to visit their estates regularly before the Jews were expelled from Khaybar. Baladhuri's report that 'Limas gave possession to those who used to receive their shares in the produce, is not without significance—so `1.1mar's action was perfectly logical. This explanation, nonetheless, does not: account adequately for Ùmar's land policy in the newly conquered territories outside the Arab Peninsula, where all Kharaf-land was immobilized. This also shows that the Prophet had not divided the lands of Arabia which Ùmar later had to divide. These questions, it must be admitted, are not easy to,solve for lack of decisive evidence.

By this as it may, the early theories of fay' have deeply influenced the concepts of land tenure in Islam. Before we examine in detail the consequences of Islamic conquests in relation to the problem of land tenure and the systematic development of the theories of fay' and muzaraà, it is necessary to study the practices, theories and laws of land tenure which prevailed in the Byzantine and Sasinian agrarian regimes. We shall confine our examination to the relation of

tenant and landlord (or state), the nature of rents paid by the peasantry, the social status of the tenant according to law and custom, and the general , nature of the institution of metayage.

To sum up, the theory of fay' with all its multiple con-notations was the result of a gradual development from the conquests of lands by the Prophet to the conquests of 'Iraq, Syria, Egypt and Persia in the early Caliphate. During the period of the Prophet the concept of common fay' was not so


much developed and sharply defined—the conquered lands were in the main reserved for the good of all Muslims as Sara' al-Hashr clearly implies, although by custom some lands were given to individuals for development, yet as the community was small, for the most part land was administered by the Prophet himself. At this stage of its nascent development the Umma constituted the general principles of social solidarity,

mutual cooperation and egalitarianism as the elements of a vitally creative ethos. These general principles were however not backed by a consciously formulated institutional framework by which common sharing of lands could be politically ensured—as we understand in the modern politico-economic sense. The general interests of the Umma in face of its formidable enemies tended to be overriding over the interests of the individual members. The concept of common fay'. could only be clearly formulated by Ùmar I after the Great Conquests. This will be discussed in detail in the fifth chapter.

144

NOTES.

1. WaqidI, Maghazi, 1, p. 7; Ibn Sa'd, Tabamit, II, pp. 5-6.

Tabari, Ta'rikh, III, pp. 1359-1364 ; Ibn Hisham, al-Sira, II, pp. 47-8 Baladhuri, Fatah, p. 17.

3. Ibn Hisham, al-Sirs; II, pp. 191-92; Baladhuri, Fatah, pp. 18-21; Tabari, Ta'rikh, III; 1451 ; Tabari, Tafsir, XXVII', pp. 27-9; Baydawi, Anwar al-Tanzll. Ed. H. 0. Flhischer (Lipsiae, sumtibus, F. C. G. Vogelii, 1846-8), II, 322.

4. Tabari, Tafsir, XXVIII, 35 ; Baydawi, Anwar, II, 323, The word also occurs in Sara XXXIII : 49, which speaks of women prisoners of war which God has made return to the Prophet.

5. Abd Tbayd, Amwal, p. 61.

5a. A.J. Arberry, The Koran Interpreted (London : George Allen and Unwin, 1955), pp. 267-68.

6} 'Abd Allah Yfisuf 'Alf, The Holy Qur'an (Lahore Sheikh Muhammad Ashraf, 1938), II, p. 1522: See also 'Ali ibn Ahmed al-Wahidi, Asbab al-Nuzal (Cairo : Matbala Hindiyya, 1897), pp. 310-314.

7. Regis Blachdre, Le Coran (Paris : Presses universitaires de France, 1966), p. 587.

8. Richard Bell, "Sfirat al-kIashr, a study of its composition", The Muslim World, XXXVIII, 1948, P. 30.

9. Tahari, Ta'rikh, 1, 1359 ; Maurice Gaudefroy-Demombynes, Mahomet, p. 127 ; A.I. Wensinck, "Kainulca-, Encyclopaedia of Islam, 1st ed., (1927), pp. 645-46.

10. These three classes comprehend all the poor Muslims of the Umma : (a) Muhajiran, who had lost all their wealth in Mecca, (b) Ansar, who were already living in Medina and sharing their wealth with the Muhdjirhn, (c) those who will come after these two groups after embracing Islam, i.e., future generations of Muslims (Bell, Surat al-Hashr, p. 33.). This explains the famous report that the land of Bentz Nadir was kept at the disposal of the poor Mulzafiran and two or three very poor Ansa?. (Baladhuri, Foal?, pp. 18-20;. Abu Yusuf, Khardj, p. 15 ; Yahya ibn Adam, Kharaj, p. 5 ; lbn Hisham, al-Sira, 11, 192.

Also see Muhammad Ibn Ya'qfib al-FirOzabadi, Tanwir al-Miqycis min Tafsir Ibn 'Abbas, (Cairo : Maktaba al-Tijariyya al-Kubra, n.d), pp. 348 f.


11. In all the three verses (8, 9 and 10), as we have here translated them, al-Muhajiran and wa alladhina, in the beginning of these sentences, are in apposition to the nounfugazaT (poor) which must not be taken here as an adjective qualifying only the word Muheijiran. This, in the words of Bell, disregards the order of the Arabic words, and that lil-fugarai at the beginning of verse 8 stands isolated and has nothing to depend on. Versa 7 contains directions for the division of spoil which are complete in themselves. This sentence (verse 7) appears to be a parenthesis, a qualifying clause which suggests that the Muslims had not captured the booty by normal method of war, therefore, it could be disposed of in a special way catering to the needs of all (Bell,

"Surat al-Hashr,” p. 31).

12. "Know that whatever booty you take, the fifth of it is God's and the Messenger's and the near kinsman's, and the orphans, and for the needy, and the traveller, if you believe in God and that We sent down upon our servant on the day of salvation the day the two hosts encountered, and God is powerful above everything (Qur'an, VIII : 42. Translation by A.S. Arberry, Koran).

13. Mahmiid ibn `Umar al-Zamakhshari, al-Kashshaf 'an klagai iq al-Tanzil

(Beirut : Dar al-Kitab al-'Arabi, 1947). IV, pp. 502-3 ; Also see Tabari,

Tafsir, XXVIII, 40 ; and Baydatyl, Anwar, II, 323.

14. Tabari, Tafsir, XIII, 383.

15. .4nfal (singular nafal) are spoils of war like chattels, slaves and weapons, according to some of the Companions and Successors. Tabari thinks that nafal is different from ghanima, the latter is a fay' taken from the unbelievers in a fight, the former is an extra or supererogatory share over and above the regular share given for extra-ordinary feats of courage (Tafsir, XIII, 365-67).

16. Waqidi, Maghazi, 1, pp. 98-100 ; Tabari, Tafsir, XIII, 365-66.

17. Abu Yusuf, Kharaj, p. 10 ; Tabari, Tafsir, XIII, 383.

18. Thanawi, Kashshaf, II, p. 1103.

18a. " 'Abd al-Razzaq relates from al-Thawri who said that fay' and

ghanima are different. As far as ghanima is concerned it consists of

those things which Muslims capture from unbelievers and which thus fall into their hands. The chief takes one fifth out of it and disposes of the remaining according to the commands a Allah : four-fifth of it belongs to the fighters who capture it. Fay' comprises those things

which are taken after a sulk-treaty, between the chief (of the Muslims)

and the unbelievers, and which relate to their poll-tax, land-tax and agricultural products, including such things which the peace-treaty

z.


stipulates and which are not taken by the Muslims by force of arms

('anwatan) ; they neither occupy nor take by fighting-but only by tarn-agreement. Al-Thawri adds that in such a sulk, authority lies with the chief : he can dispose of it according to the teachings of Allah."

'Abd al-Razzaq ibn Hammam, al-Musannaf, V, 310.

19. Ibn Hisham, al-Sira, II, 492 ; Shaybani, Siyar al-Kabir, Shari! Sarakhsi,

1, pp. 310, 311, 315, 331, 346-48, 353 etc. Tabari, Ta. rikh, III, 134-36 ;

Waqidi, Magazi, III, 492-93 ; Abu - Da'fid, al-Sunan,I11, 63 ; Ibrr

Hanbal, Musnad, II, 6729, 7037.

20. Tabari records that Sa'd ibn Abi Waqqat distributed the fay' of

al-Mada'in among the Muslims in 16/637-38. This consisted of horses

and houses which were divided to accommodate their families

(Ta. rikh, V, pp. 2450-51). When in 12/633-34 news came to Khalid ibn

al-Walid that a huge Persian army was approaching, he divided the fay'

(I.e., chattels) among the fighters and sent a fifth to Caliph Abfi Bakr

in Medina (Ibid., IV, pp. 2027, 21581. Abu paw uses fay' in the

4- sense of moveable goods divisible among the fighters and also in

the sense of land (al-Sunan. III, pp. 63, 136 ; see also ibn Hishatn,

al-Sira, II, 244 ; and Tabari, Ta'rikh, III, 1497).

21. Ibn Hisham, al-Sira, II, 492; Waqidi, Maghitzi, III, pp. 942-43 ; Abfi

DA'fid, al-Sunan, III, 63 ; Ibn Hanbal, Musnad, II, 6729. 7037: Tabari,

Tai rikh, III, pp. 134-36.

22. Ibn Hisham, al-Sira, II, 492,

23. Tabari, Tafsir, XIII, pp. 545-47.

24. Ibid., p. 547.

25. Ibid., pp. 546-47.

, 26. Abfi `Ubayd, Amwal, pp. 141 ff.

27. The land of Ban(' Qurayta was conquered in 5/626-47. According to ZUhri, this land was divided among the Muslims according

to their shares. This was also the opinion of Ibn 'Abbas

and al-Layth ibn (Baladhuri, Farah, p. 22). Waqidi gives some

traditions which suggest that date palms, horses and prisoners of war were divided among the Muslims. These were divided into five por-tions, one fifth was taken out as property of Allah and the other four

parts were divided among the Muslims (Maghazi, 11, pp. 521-22). On

the other hand, Ibn Istjaq and Tabari report that the fay' of Qurayta

comprised prisoners of war and horses which were all distributed after deducting one fifth, (Tabari, Ta'rikh, III, 1497 ; Ibn Hisham,

al-Sira, II, 244).

The Concept of Fay'

28. Able Yfisuf, Kharlif, p. 39.

29. Abfi Da'fid, al-Sunan, III, 141.

30. Yal)ya ibn Adam, Kharal, p. 5.

31. MO Yilsuf, Khartif, pp. 13-15, 39.

32. Tabari, Tafsir, XXVIII, p. 36.

33. Ibid., pp. 37-8.

34. Ibid., pp. 38-9.

35. Ibid., p. 39.

36. Ibid.

37. AbA 'Ubayd calls verses LIX, 6- 10 'Ayat al-Fay' (verses of fay') of al-tnawmifa (immobilized lands, or public mortmainl-as `Umar I

had. interpreted and implemented them as comprehending all Muslims. On the other hand, he calls verse VIII : 42 'Ayat al-Ghanima (verse Of booty). Amwal, pp. 60-61.

38. Richard Bell, Surat al-klashr, pp. 34.35.

39. F. Lokkegaatd, Taxation, p 48, also p. 44.

40. Ibid., p. 44, and pp. 46-47.

41. "Flier liegt offensichrlich eine Falscheinschatzung des Begriffspaares 'afa'a-Fai', d.h. die Setzung einer falschen Beziehung, durch die

muslimischen Erklarer vor. Sie versuchen namlich, den zu ibrer Zeit gelilufigen Fai t-Begriff, ein spateres Produkt. juristisch-systematisieren-den Denkens zugunsten der Staatsrlison, mit dem primitiven and originaren Wortsinn des wohl situationsbedingten "afas a" zum Decken zu bringen." (Untersuchungen, p. 38).

42. Ibid., p. 38.

43. Alta 'Ubayd, Amwal, p. 59.

44. "Man erkennt an den vorgebrachten Beispielen sehr deutlich, dass sich allmahlich um eine selbst-in sich-gesuchte motivierende

Redefigur ganzer Kranz inhaltlich paralleler Zusatzaberlieferugen rankt". (pp. 111 ff.).

45. Tabari, Tafsir, XXVIII, 44.

46. Ibid.

47. See Falai al-Din 'Abd al-Raljman and Ella! al-Din al-Maljalli, Tafsir al-Qur'an (Caiso Matba'a Taqaddum, 1901-2), 130, where this verse

147


has been interpreted as "those who came (i.e., who shall come) after the Muhajiran and the Ansar till the Day of Judgment (i.e., all the future generations)."

48. Baydawi (Anwar, II, 324), interprets the verse `ghost who came- after them" are those who emigrated (heijarfi) when Islam strengthened itself ; or they are those who followed them till the Day of Judgment. For this reason it is said that this verse comprehends all believers. See also Zamakhsharl (al-Kashshaf IV, pp. 84-5) for a similar interpretation.

49. Tabari, Tafsir, XXVIII, 39.

50. Safiya, safiy (playa) signifies a portion of booty which the chief of a warring group chooses for himself, exclusively of his own companions, such as a horse, or a sword. The term was later used as sawafi (singular sallya), lands or possestons - which the Sultan (ruler) appropriates exclusively to his people ; it also means all lands which their owners have abandoned, or of which the owners have died leaving no heirs thereof. Ibn ManOr explains that the term has the implication that the lands are exclusive (khalisatan) for God.

Ibn Man?iir, Luau, XIV, 462-63 ; Lane, Lexicon, IV, 1704.

51. Lokkegaard, Taxation, p. 45. •

52. Lokkegaard, "Fay", Encyclopaedia of Islam (2nd Edition, 1965), pp. 869-70.

53. Lokkegaard, Taxation, pp. 40-41.

54. Aba Yusuf, Khara j, pp. 14-15, 39.

55. Ibn Hisham, al-Sira, II, pp. 192-194 ; also see Baladhuri, Dart, pp. 18-19.

56. Waqidi, Maghazi, I, pp. 379-80 ; Baladhuri, Farah, pp. 20-21 ;

Yaqiat, Mu'jam, IV, 791 ; Shaybani, Siyar al-Kabir, II, pp. 608-9.

57. Abu 'Ubayd, Amwal, pp. 7-14.

58. Baladhuri, Flaw!, p. 18.

59. Tabari, Ta'rikh, III, 1453. See also Abli al-Stmon, III, 141.

60. Baladhuri, Fortih, p. 20 ; Abu Daiiid, al-Sunan, III, 141-42 ; Shaybani, Siyar al-Kabir, II, pp. 610 ff.

61. Ignaz Goldziher, Muhammedanische Studien (Halle : Max Niemeyer, 1889-90), II, pp. 35-39.


62. /tint, Mu'jam, 1, pp. 46-7.

63. Ibid.

64. Ibid.

65. Ab5 Da'ild, al-Sunan, III, 144.

66. See, for example, Qur'an, IV : 59.

67. Baladhuri, Firti-oh pp. 29-30 ; Abu 'Ubayd, Amwal, 14; Abu Da'ud, al-Sunan, III, pp. 140-142.

68. The word 'amilan in this Ifadith is rightly interpreted by Aba Da'fal

(III, 144cas tillers of land or 'akara. This expression can also mean "tax collectors" as in the Qur'an ; the word does not mean this here. These tillers were probably the agricultural labourers.

69. /bid., III, 142. Malik (Muwa4a', II, 993) tecords ; 'Aysha says that after the Prophet had died the Mothers of the Believers (his wives) wanted to send 'Uthman ibn 'Arlan to Abu • Bakr to ask for their share of the inheritance left by the Prophet. Upon this, 'Aysha reminded 'them that the Prophet had said that the Prophets do not leave anything-every thing they have is sadaqa. Ibn on the other hand, reports that the Prophet had gifted Fadak to Fatima (Ta'rikh, ed., M. Th. Houtsma, Leiden : E.J. Brill, 1883, II, p. 573).

70. Bala:dhoti, Futfih, p. 31 ; Ab5 al-Sunan, III, 144-45.

71. Ibn Hisham, al-Sira, II, 353.

72. Waoldi, Maghazi,11, 706-07.

73. Bukbari, Sahih, kitab al-tafsir ; also see Yithya ibn Adam, Kharcij,

pp. 21-22 ; al-Stman, III, pp. 139-140, 144 ; Ab5 'Ubayd,

Amwal, pp. 10-11 ; lbn Hanbal, Musnad, I, 158-187, for another version. Zuhri-trwa-`Aysha says that Fatima had approached Abu Bakr to claim her share of the Prophet's inheritance. Abu Bakr denied that the Prophet had left anything for her-whatever he left was a sadaqa e., for Muslims as a whole).

74. Baladhuri, Fatah, pp. 30-31. Ibn Sa'd, Tabaqat, V, 286 ; Abu Da'ud, al-Sunan, III, 143; W. Berthold, "Caliph 'Umar II and the Conflicting Reports on his Personality," The Islamic Quarterly, kV, Nos : 2 and 3 April-September, 1971, p. 89.

75. Bukhari, Sahih, kitab al-tafsir Mb al-Jihad.

Abu Da'ad, al-Sunan, II, 140-141.


76. Ibn Hisham, I, 518 ; and Baladhuri, Fatah, p, 18 ; Waqidi, Magliazi, I, 378.

77. Waqiui, Maglicizi, I, pp. 377-380, and II, pp. 521-525.

78. Ibn Sa'd, Talmo-it, 11, 58.

79. AV, 'Ubayd, guva!, pp. 14-15. Also see Yacilit, Miejarn, I, p. 47.

80. Abu 'Ubayd, Littoral, p. 15 ; Tabari, Tafsir, XXVIII, pp. 44-45.

81. Abu Da'nd, al-Sunan, III , 166-67.

82. Abu 'Ubayd, Atnwol, pp. 14-17.

83. Ibn Hisham, al-Sira, II, pp. 246-47, and 337 ; Bukhdri, Abfi Da'rld, al-Sultan, III, pp, 157-162.

84. Ibn Hisham, al-Sire, 11, 349-352. Also see Waciidi, Maghazi, 680-699.

85. Tabari, Tairikh, III, 1583,

86. Yaqat, Mu'jani, I, 504.

87, Baladhuri, Fatah, p. 26 ; Tabari, Ta'rikh, V, 2594-95, where he says that 'Umar I also divided Wadi al-qura.

CHAPTER IV

BYZANTINE AND SASANIAN AGRARIAN REGIMES

Our discussion of the primitive'tenures shows that for the

Umma in the Arabian Peninsula the problem of landholdings

was simple. The Islamic conquests of the Byzantine provinces

of Egypt, Palestine, Syria, upper Mesopotamia, Armenia, and

the Sasanian lands of 'Iraq and Persia, in the lstj7th century,

which were initiated by Abu Bakr and then vigorously pursued

by 'Umar I, resulted in a change of attitude and policy towards

the problems of land-tenure. After these conquests, the agrar-

ian systems of the former regimes were taken over by the Islamic.

State. The emerging Islamic Empire thus came to contain

diverse systems and sub-systems of landholding in which

agriculture was the primary activity of the majority of the

population and a fundamental basis for-the State's revenues.

As it was found impossible to divide these vast lands among

Muslims, they were immobilized, that is, they were made

waq f (mortmain), or collective fay' of Muslims. This was apparently done according to the explicit text of the Qur'an (LIX,6-10). All these conquered lands, says Abu Yilsuf, became

fay' according to the clear injunction of the Qur'an, 'and as

common good of all Muslims lay in- this policy, 'Umar I considered it appropriate to collect the revenues of kharaj

from these lands, and distribute them to the Muslims for

their welfare. Had these lands not been immobilized to yield payment of regular stipends to the Muslim soldiers,

the frontier garrisons could not have been (easily) manned,

the Muslims armies could not have been mobilized for

wars and the conquered towns could have fallen again into

the hands of unbelievers for lack of defenders.'


Before we discuss the changes brought about by the territorial

expansion of Islam, we will examine the main characteristics of

the Byzantine and Sasanian agrarian systems. This background

is necessary to understand the subsequent Islamic developments

and evolution of various concepts, ideas and practices, and

their elaborate theoretical formulations by the Fugahal.

The Byzantine and the SasUlnian agricultural systems at the time of the Islamic conquests had three main characteristics ;

first, prevalence, particularly in Egypt, of large landed estates,

which existed to the detriment of the small peasant proprietors,

and tenants-farmers. Second, the existence of a large class of

tenants, serfs, and sharecroppers, who perpetually bound to the

soil by custom and by law, depended for their subsistence on

leased lands, and paid rents in kind and money.' The depend-

ence of the peasantry on these lands was further reinforced

by the artificial irrigation system which was supported and

financed by the autocratic regimes in order to reap higher revenues. Third, these tenures were primarily rooted in serfdom,

custom, and hereditary status rather than based on free contract between landlord and tenant. •

Agriculture was the basis of the economy of the Byzantine

Empire, and the administration, the royal house, the finances of the eight dioceses,2 the Praetorian prefecture, army and

Church—almost' the entire revenue of the Empire—was derived from the agricultural land and the peasantry.3

This has been aptly termed Rentenkapitalismus, or Capitalisme de rente, which is supposed to have taken deep

roots in the Near Bast in pre-Islamic days. Under this economic system of Rentenkapitalismus, the ideal of the land owner (whether private or state) was not direct exploitation of the

land, but instead employing a large number of agricultural

labourers and serf-tenants to till the soil. The entire system

was thus based on mitayage or. muzarcea. In the words of Planhol, "le paysan reduit au minimum vital est contraint k tine

exploitation destructrice et manque de Panwrce indispensable' de capital pour exploiter les moindres inventions ou progres

Byzantine and Sasanian Agrarian Regimes 153

techniques, condamnes s'ils apparaissent, k s'ensevelir dans

Pindtfference tie la classe possedante, qui se desinteresse du

processus du production, et l'impuissance egalement sterilisants

du paysan producteur."4

A major part of the land was thus owned by absentee land-

lords who leased it to the tenants. Although some peasant

proprietors did exist side by side with the large estates, they

tended to get smaller and ultimately diminished almost to a

vanishing point. After the fourth century A. ID., the patrons

(under patrociniwn) began to annex these small holdings to

their large private estates.5

Large Private Estates

Besides the Imperial estates and Crown lands, a large part

of the land of the Empire belonged to the large proprietors

(possessores). In the rural areas these land owners belonged to

the senatorial class, while near the cities they belonged to the

curials of the local municipal senates. Their estates were given to the tenants who paid rents and land taxes and mainly worked

as sharecroppers. The Imperial estates were let on temporary

or perpetual leases to cultivators who paid annona or capitation

in money or in kind ; this was in addition to the land tax

proper, and was paid in money or in kind. The amount was fixed by indiction, a special order of the Emperor, and consisted

of fixed amounts of corn, oil and wine necessary to sustain a

soldier for one year.6 Churches and monasteries were also big

land owners. In the sixth century these church estates were

extensive and were leased to the tenants."'

Special studies have been made by scholars of Byzantine

economic history on the phenomenon of large estates, called

le regime des terres, in the sixth century. Edward Rochie Hardy, A. C. Johnson, L.C. West and Germain Rouillard have

all based their studies on the evidence of sixth century papyri

from Byzantine Egypt. Though their conclusions are limited

in validity as the papyri come from a few areas only, their

154 Landlord and Peasant in Early Islam Byzantine and Sasanian Agrarian Regimes 155

broad generalizations throw light on the economic conditions

(particularly of Egypt), in regard to agricultural ,rents, the relation of landlord and tenant, and the condition of the peasa n try. s

From the data of papyri of sixth century Egypt, Hardy infers that the widely scattered large estates in Egypt constituted

an economic system in themselves, resembling in certain traits

the feudalism of medieval Europe. He says that these estates

were closely interrelated to the social conditions of the people.

The estates controlled the agricultural operations of their tenant-

serfs, and employed various types of skilled labour. The leases

were perpetual and sometimes periodical ; the tenants paid

their rents in money and in kind, while sometimes additional rents were arbitrarily attached. The big and powerful land-

lords, who usually held local and provincial offices and owned

business enterprises, were also patrons of churches and monas-

teries. Despite this, the estates, according to Hardy, were not

self-sufficient units.9

Rouillard in his study comes to the conclusion that during

the sixth and early seventh centuries before the Islamic Conquest,

the large estates played a dominant role in the rural economy

of Egypt. He terms this agrarian system le regime des terres.

According to him the papyri found in the regions of Fayum,

Hermopolis and Thebaid reveal that the entire economy was dominated by these grands domains, or the Oixoi (the houses): Families such as that of Flavius Apion owned many villages and vast estates.10

Jones says that in the sixth century, landlords like Apion

were on the increase ; Apion's family, taken as an illustration,

owned two-fifths (1,12,000 arurae) out of a total of 2,80,000

arurae of Oxyrhynchus and Cynopolis. He believes that,

although the small proprietors declined, yet some of them retain-

ed their holdings and • held autopragia, the right of collecting their own taxes and paying them directly to the provincial

governor. This was practised in the reign of Justinian (5272

565 A.D.) and continued until the Islamic Conquest.II

According to Hardy, again, the large estates were of three

types : estates owned by private proprietors ; lands owned by the emperors or the State ; and lands of the churches and the

monasteries. The later were more extensive, largely formed

by pious donations, both public and private. These were leased on hereditary or perpetual terms (emphyteusis). 12

The large estates, says Georg Ostrogorsky, had developed

because of general economic decline, labour shortage, and com-

mercial collapse. They grew at the expense of both small holders

and the Imperial domains. The pressure of • heavy taxation

resulted in patrocinium,13 which caused free peasants to become

serfs legally bound to .the soil. He believes that free peasantry

could , not develop until the period of Heraclius (reigned

610-641 A.D.),I 4

The institution of patrocinium continued under the Umay-yads and the 'Abbasids under the name of talji'a. The small peasants tended to take shelter under the big land holders and

became their tenants and sharecroppers. (We shall discuss

this problem in the sixth and seventh chapters). These big landowners of the Byzantine Empire became increasingly power-ful and frequently posed a threat to the central government.

Procopius of Caesarea, who himself belonged to the provincial

senatorial aristocracy of great landlords, remonstrated against

Justinian's policy of curbing the economic and political power

of the landowners.35 Procopius also mentions the brutal treat-

ment of the Palestinian landowners under Justinian, who imposed

taxes on their lands from which 1,00,000 people had disappeared

in a religious revolt.16

Landlords, like Apion Flavius, were owners of entire villages.

Their households were equipped regally with secretaries,

stewards, assessors, tax collectors, treasurers and police. They

had their own prisons and maintained their own troops

(bucellarii).17

While Johnson agrees that crown lands developed into great private estates, , he doubts the thesis that serfdom was so


prevalent because historical evidence does not corroborate it. He

gives two reasons for his contention. First, we know from the great tax register of Antaeopolis, that the peasants more frequently

paid their taxes in money than in kind and were able to sell. their grain on the open market. The average price of grain during the sixth century was about ten artabas (Egyptian measure of grain) per 'solidus (gold coin), and gave the farmer a good return.

Secondly, the teaching of Christianity restrained the landlords from oppressing their tenants.I8

His first contention, if correct, have validity for Egypt but

not for other Eastern provinces. We shall see later in this chapter that serfdom was the chief characteristic of the

Byzantine agrarian structure. His second contention is question-able because, as Vasiliev has shown, Justinian augmented church

and monastery estates. In the seventh century, they blossomed

into huge monastery principalities or fiefs which "took in Byzan- • tium the place of the duchies and counties of Western Europe".ig

Johnson himself says that when the principle of state-owned land

was abandoned, private landownership reemerged to radically change the'status of the peasant in Egypt.20

Nevertheless, peasant proprietorship was not uncommon in

Egypt and in parts of the Eastern provinces of the Empire.

Libanius, the Syrian, in the late fourth century A. D. divides •

Syrian villages into two categories : those owned by one land-

lord, and those divided among many small peasant proprietors.

Theodoret, a writer in the middle of the fifth century, still speaks of these two kinds of villages. However, small proprietor-

ship later diminished when whole villages fell into the hands of patrons.23 Bury tells us that the father of the eighth century Syrian Greek scholar John of Demascus possessed considerable lands in Palestine. John, who served under the Umayyad

Caliphs, used to spend large amounts of money to free Christian

slaves and bestowed small farms from his estates on those of them who wished to cultivate the soil.22 In pre-Islamic times Abu Sufyan ibn Harb possessed an estate (day'a) in Syria called Qubbash, which was situated at Balqa% This he owned during

the period when he travelled to Syria on trading journeys.23

Byzantine and Sasanian Agrarian Rigimes 157

There was also another category of estates—called civic

estates, which were owned by cities.24

Coloni

The economic.pressures of the late Byzantine State gradually

tended to create conditions of social compulsion and, among

other things, transformed the system of tenures into one based

not on free contract between free persons but on serfdom, custom, and hereditary status of the individual. In the wake

of wars and consequent internal social disorders, the state expen-

ded increased efforts to maintain stable land revenues and

prevent desertion of lands. The Byzantine Emperors gradually

created what Bury calls the "Compulsory Social Organization" in which compulsion was applied to all social classes, whether

they were trades, professions or guilds. They applied rigorous

compulsion to tillers of the soil (generally called coloni)25 and

created a system of serfdom and hereditary status in place of

free contract.26 The estates were leased to the tenants under

different stipulations. The system of mitayage came to be uni-

versally adopted throughout the late Empire in Egypt, which

has been aptly termed "the Servile State".27

The majority of the peasants thus became coloni, or mere

sharecroppers, on the large estates which were the mainstay of

the state's revenue. To check their flight, Diocletian (reigned

283-305' A.D.) and his successors bound them to the soil as

serfs. This legal attachment to the soil continued until the

Islamic Conquest.28 The coloni and serf-tenants were literally

the slaves of the estate owners and the state. They were exploited

not only by the landlords but also by their agents and managers.

Saint John Chrysostom (d. 407 A.D.) illustrates the abject

conditions of the serf-tenants in these words:

"Who could be more oppressive than a landlord ? If

you look at the way in which they treat their miserable

tenants, you will find them mote savage than barbarians.

They lay intolerable and continual burdens upon men who


are weakened with hunger and toil throughout their lives,

and they put upon them the burden of oppressive services. They use their bodies like asses and mules, or rather like

stones, hardly letting them breathe, and they strain them

equally in good years and bad, never giving the slightest

relief. They make them work all through the winter in

cold and rain ; they deprive them of sleep, and send them

home with empty hands, indeed with debts still to pay.

Moreover, the tortures and beatings, the exactions and

ruthless demands of services which such men suffer from

agents are worse than hunger. Who could recount the

ways in which these agents use them for profit and then

cheat thern ? Their labour turns the agent's olive press ;

but they receive not a scrap of the produce which they are

compelled illegally to bottle for the agent, receiving only

a tiny sum for this work. Moreover, the agent extorts

more oppressive interest than even pagan law allows—not

twelve but fifty percent from a 'man with a wife and

children,who is filling the agent's barn and olive store by his own labour.29

Calonate in the Byzantine Law

In the Roman Byzantine law tenants were divided into two categories : inquilini, or lessees of houses in cities ; and coloni, or lessees of agricultural lands. The original significance of colonus was a serf servus terrae (slave of the soil), or adscriptus glebae (one who is registered and tied to the soil). The colonus had no clear rights as far as law was concerned. In theory, he

was free and unlike a slave, could marry, make contracts and

pay taxes'. In practice, however, he was a serf, compelled to

till the land of his birth, but forbidden to leave it. The land-

lord could not dispose of him separately from the land, or even

manumit him, and his children were serfs by heredity. The

children of a female serf, with the maxim, Partus sequitur ventrem, followed the condition of the mother. The colonus -could own his personal property, peculium, but he could not alienate it without his master's consent. It was customary for

prisoners, mendicants and impostors to be given over to the


landlords and converted into tenants-co/oni.30

The end of the third century, under the reign of the Byzan-

tine Emperor Diocletian (284-305 A. D.), saw an economic

crisis. The ruined coloni, unable to pay the heavy rents and

taxes, began deserting lands which ultimately went out of culti-

vation ;'production decreased and the state revenues, on which

depended the entire state structure and the landed aristocracy

sharply declined. Emperor Constantine (306-337 A. D.) respon-

ded to the problem, virtually making the co/mil serfs and

compulsory tenants.31

A law of Constantine issued in A. D. 332 to the Provincials

says :

“Any person in whose possession a co/onus that belongs to

another is found, not only shall restore the aforesaid colonus

to his birth status (origo) but also shall assume the capita-

tion tax for this man for the time that he was with him."32

Another law says :

"Coloni also who meditate flight must be bound with chains

and returned to a servile condition, so that by virtue of

their condemnation to slavery, they shall be compelled to

fulfil the duties that befit free men."33

A law of 25th October, A. D. 386 says :

"If any person through solicitation should receive a colonus

belonging to another or by concealment should harbour him,

he shall be compelled to pay six ounces of gold for him if

he is a colonus belonging to a private person, and a pound

of gold if he is a co/onus belonging to an imperial patri-

monial e&tate."34

A law of 26th June, A. D. 419 of Emperors Honorius and

Theodosius (408-450 A. D.) says :

"If any person should hold for thirty years on his own estate

another person's colonus, he shall have the right to have him

as his own. But if such colonus should be found before


the end of thirty years, he shall be recovered by his owner, along with his offspring and his entire peculium.35

The Emperors Valentinian and Valens legally tied the coloni of Palestine to land, forbidding them to leave it. The

serf-tenants were made subject to the landlords, to whom the full authority to claim the coloni was given.36

In another law; provincial governors were asked to compel all fugitive serf's, whether attached to the land or not, and all

tenants, irrespective of sex, occupation, or status, to return to their home-land where they were registered.37

The Eastern provinces of the Byzantine Empire in the sixth

and early seventh centuries were thus characterized by an

immobilization of the peasantry by law. According to Roth

Clausing, conditions on the imperial domains were followed by private landowners.38

Thus, colonate was a most important social and economic institution of the sixth century. According to law, the tenants

were slaves of the land, from which they could not, even momentarily, be separated.39 The colonus had to give a surety bond that, should he leave the land, he would compensate the estate.40

This policy of binding and immobilizing the tenants was

tenaciously followed by Justinian (527-565 A. D.), who decreed

that a tenant-serf could not be released from the bondage of

the land by any act of generosity whatsoever ; if he fled, he

stole himself. His laws, recorded in the Justinian Code in the Civil' Law, clearly reveal the condition of the tenants in the last decades of the sixth century A. D.4I

The serf-tenants who, after thirty years could become coloni-liberi, were, by these laws of Justinian, condemned to perpetual serfdom.42 According to Scott, the serfdom of the colonus, "originally an incident of conquest, and universally imposed on

the provinces of the Empire, survived for many centuries in

Eastern Europe, and has only within a comparatively recent period been abolished."43

Byzantine and Sasithian Agrarian Regimes 161

Thus, in the sixth century, A. ID., before Islam conquered

these eastern provinces, tenants were of three broad categories :

1. Coloni adscripticii were hereditary tenants, mainly des-

cended from the registered and attached tenants. In some provinces, like Egypt and Palestine, they were perpetually bound

to the soil and, like slaves, were forbidden to alienate their

personal property (peculium) without their lord's permission.

Justinian says about them, "what difference can be under-

stood between slaves and the• adscripticii when both are placed

in their master's power and he can manumit a slave with his

(the slave's) peculium and alienate an adscripticus with the

land ? "44 These tenants could be sold only with the land, as

they were an integral part of it.

2. Partially free colon/ were hereditarily attached to the

soil, but personally (at least in theory) free. They were descen-ded from peasants who had taken lands on lease on which they

had lived for more than thirty years. But gradually they also

came to be attached 'to the soil in the manner of the adscripticii.

3. Free tenants : This third class consisted of free tenants

who enjoyed greater mobility and who, particularly in sixth

century Egypt; held short-term leases. According to Jones, in

a study of 170 leases from the time of Diocletian (284-305 A. D.)

to the Islamic conquest in 640 A. D. in which the terms of the

leases are intact, six leases are for life (emphyteutic or perpetual

leases), and some sixty leases are for very. short terms. In 25

leases the tenants obtained the land for one year on a renewable

lease.45

The rules tying colon! were 'stricter in the eastern than in

the western provinces, for the agricultural resources of the East,

such as Egyptian grain, were brought to the western provinces

and wasted in presistent wars in this part of the Empire.46

Jones concludes that, in the early Byzantine Empire,

tenants were free to leave the lands which they cultivated for

short terms. From the time of Diocletian, pressing fiscal needs

it


compelled the peasantry to be tied to the land of their registra-

tion where they paid their rents and taxes. This was for the convenience and interests of the landowners, who also formed

the official aristocracy and __controlled State policy. In this

system, the free tenants were also practically tied to the land.47

Johnson, bn the other hand, is of the view that many coloni adscripticii in Egypt were free tenants, as they had the right of contract, and could pledge their property as security. He opposes the theory that serfdom in Egypt had developed on a large scale.45 He thinks, as we noted earlier, taxes in kind were low, while rents were usually paid in mohey.49 It is true that on such partial ' and tenuous evidence it is. dangerous to generalize.

Vasiliev does not agree with those Byzantinists -who hold that colonate or serfdom disappeared from the Byiantine Empire in the eighth 'century with the Slavonic communal

settlements. According to him, the small free peasantry and

rural communes existed parallel with serfdom throughout the late Empire.50

Other economic consequences followed' from all these developments which have great significance for our own study.

The system of tenure tended to become. customary and compul-sive, binding the tenant to the soil forever, transforming him

into a mere slave of the landowner and a' part of the ground itself.51 In other words, this became a regime of custom and

hereditary status, which to a large extent represented the econo-

mic and social relations between tenants and landowners : the latter had at their back the force of the imperial law.

This economic regime was later taken over by the Islamic

State after the Great Conquests. Under 'Omar I when these

lands were conquered they were, in the main, immobilized with

the attached serf-tenants on them : these lands, as well as the serf-tenants, were not divided but made wave, or common property of all the Muslims.

When the Umayyads came to power they adopted the

'Byzantine and Sasanian Agrarian Regimes 163

administration of the former regimes. Thus large estates and

Crown domains reappeared. The political and economic

structure reasserted itself and was again based on the revenues

derived from the peasantry, which by custom and convenience

continued to be attached to the soil for fiscal reasons. The old

system of Renrenkapitalistnus based on metayage or muzeira'a

was further elaborated and rationalized.

The adoption of laws and practices of the Byzantine and

Sasanian regimes, it appears, was dictated by two practical

reasons. First, as the Islamic State under the Umayyads

acquired more developed agrarian institutions of these Empires,

the growing complexity of social and economic relations in the

domain of tenures created problems which could no longer be

solved by recourse to the customary land laws of the Hij52.

Morebver, in the new situation the general ban on the primi-

tive tenures could not be implemented. Therefore, we may assume that in the gradual course of administrative development

of the agrarian situation it was soon found that the gaps between changing life under the new circumstances, and the idealistically

formulated immutable ban on the aleatory tenures, could most

practically be bridged by maintaining the necessary and reason-

able elements of the customary system of tnetayage.

Secondly, in political terms, the Umayyads, and after

them the `Abbasids, sought desperately to increase their political

power through a centralized and autocratic State. They adop-

ted the Byzantine and Sasanian law of the State's lordship over

the individuals and the classes. The notion that the 'State was

the ultimate owner of all lands was constantly sustained.

This was the starting point for the Muslim juristis, who

rightly realized that all these practices and oppressive laws were

against the basic ethos of the Shan't?. Their real achievement,

as we shall see in detail in the eighth chapter, lay in making these

tenures contractual, and in systematically rationalizing those

which were less aleatory and arbitrary in nature and which were

not immobilizing tenants with customs and corvees.

To resume the story of the Byzantine serfdom, Rouillard has


shown that as the large estates grew, the peasant, proprietors proportionately diminished to the status of serfs and coloni.5 2 Causing, in the study of the origin and development of colonate has observed that the early period of Byzantine history is characterized by comparatively free coloni holding short-term leases and paying money rents. They were not bound to remain

on their leased lands after their leases had expired. He particu-

larly mentions the later development of the class of colon! partiarii who held no contract and paid rents in shares of the crops.53 Because Roman law did not recognize crop shares as payment of rent, landlords could impose any conditions whatso-ever on their coloni partiarii, who could not leave the land after they had incurred debts. Furtherthore, landlords were the only money lenders, and this, according to Clausing, placed their tenants, entirely at their mercy.54 This brings us to the problem

$ of the nature of leases and rents in this Compulsory System of Tenure.

Rents and Leases

All categories of estates—whether imperial, church, or private—were leased to the coloni.55 They were managed by the bailiffs (vi/ici) or farmers-general (conductores) or tax-farmers (mancipes), who used to cultivate a home farm and let the other' farms to coloni.56 They were the chief lease-holders : capitalist-lessees of the imperial domains who sublet land to the tenants.53

In the earlier period the rent was a fixed sum of money,

and later a share of the crop; on estates in the African provin-ces a few days of unpaid.labour (corvie) was also added to the rents.58 (This belongs to the category of mukhabara and muliagala tenures of pre-Islamic Arabia).

The system of leasing and renting in the context of the

agrarian economy of sixth century Byzantium was, as Bell calls

it, "the regime of status," that is to say, the position of the

peasantry, particularly in Egypt, was determined not by free contract but by hereditary liability.59 This was a necessary part of the total social system. Other social classes were also

subject to custom and status : "Every where, in fact, status had


taken the place of free contract,60 son succeeded father without

choice or hope. The servile state Was in the being."61

The nature and amount of the rent, as specified in the

Byzantine and Roman Codes, was fixed by custom and paid in

kind unless a money payment had become customary. Usually

this type of rent could not be raised, and the rights of the colon!

to the customary rent could be defended in the courts.62

A law in the Code of Justinian says that "The owners of

land shall only exact from their serfs what it produces and they

must not collect their rent in money, which rustics need not

pay unless the custom of the country requires it."63

In the sixth century additionaVrents, usually in kind, were

frequently demanded from the coloni. According to a document,

"The men of Pempo (Egypt) had found themselves with extra

charges on each solidus of rent of five-eighths of a karat for the

landlord and seven-eighths for the pronoetes" (administrators of

the estate) 64

According to Rouillard, some documents of papyri reveal

that the contracts of metayage in the Egyptian large estates were

common for plain lands, orchards, vineyards and date-palms

(ard baydai' and ?lei/ respectively of Malik and Shafi9). The

rents paid by the coloni were in kind, i.e., in wheat, raisins or

wine (as in)nulidocila tenancy). The amount of these rents, he

says, was probably fixed by the contract of which a papyrus from

Oxyrhynchus gives us a typical example.63 (All such tenures

in which rent was paid in grain or food were termed by Muslim

jurists as muliikalalmukhabara tenuresa.66

H. Comfort has made a detailed documentary study of

about 163 Egyptian land leases of the fifth and sixth centuries.61

These concern arable land, vineyards, date palms, pastures and

vegetable gardens. Some leases are for periods of, six months to

ten years, while some are for life ( emphyteusis). Rents were

generally paid in wheat, barley, wine, crop shares, fruit-shares,

and gold.68


According to Jones, rents paid by the colon! were of four categories : (a) money rents, (b) fixed payment in kind or grain rents, (c) rents as a certain , portion of the crop, (d) mixed rents, paid partly in kind and partly in money, or a share of the crop with other payments in cash or kind, were also known.69

In. Africa, sharecropping was common, but in Egypt rents were usually paid as a fixed quantity in kind. Money rents were common for vineyards and orchards from the time of Diocle-tian to the Islamic conquest. Rents were also paid in a combin-ation of grains, sometimes with additional items of food added to the main rent.79 In Syria and Palestine, the customary practice of paying rents in kind prevailed. In Antioch (Syria), in Caesarea (Palestine), and in other cities, the great landlords used to hoard considerable stocks of grains. These grain stocks came from the colon! as rents in kind.71 In Egypt, as we know. from Jones' research, the rents of metayage (or muzara`a) were equally divided on arable lands; the landlord paid the taxes but sought extra perquisites. On vineyards and orchards, the landlord got two-thirds and three-fourths, respectively, of the crop. In leases of good arable lands against kind, the normal rent was five artabae (about one-half the normal crop) to the arura.72

Byzantine and Sdsdnian Agrarian Regimes 16;

"Anyone who cultivates an abandoned tract of land belonging to our private domain, and renders it fertile and valuable, shall, in accordance with the rules established in such cases, become

the private owner of the same forever."76 The holders of

these lands were relatively rich persons, for such lands needed much capital investment. Africa was a land of perpetual leases in vines, olive and fruit trees. Rents were one-third of the

produce.”

According to the Justinian law, "the emphyteuticarii could

not refuse to pay rent under the pretext that the land was sterile, nor should they be deprived of these lands even if a higher rent had been promised by another, but they should remain in the

hands of those who have received them and of their posterity."78

Carl H. Becker holds that the phenomenon of aald'i‘

(private estates) in early Islam grew out of the Byzantine

agri deserti.79 We shall discuss this under lap in the sixth

chapter. In the next section, a brief account of the 35.sanian system of landholdings and rents will be given.

Land Tenure under the Sasanians

The landlord usually contributed nothing to the cultivation of the land from which he received his rent, but some landlords, like Apion, used to contribute to the maintenance of their estates.73 Jones thinks that in other parts of the Empire, rents were probably lower than those in Egypt, as yields per acre were generally lower by modern standards. In those days, only half the area could be tilled, and the other half was left fallow.74

The Emphyteutic Leases

Imperial estates were granted in emphyteutic leases, perpetu-ally or for life, to a person who cultivated an abandoned land (agri desert!) within two years after it was granted.75 A law of the Justinian Code says :

The Sasanians (226-652 A.D.) had inherited the feudal system of the Arsacids. Under them, seven privileged families, one of them being the Sasanians, held sway' over the Persian lands.80 The possessions of these vaspuhrs were dispersed through-

out different parts of the Empire. But probably what Christensen calls the haute noblesse feodale was not formed exclusively by

these seven aristocratic families. There were numerous °the' feudal families.si Throughout the Empire, vassals of the royal family held large hereditary estates. The relationship of these land-owners with the satraps, the provincial governors, is not clear. They enjoyed considerable privileges which sometimes enabled them to appropriate the taxes which they raised from the peasantry.82

Fundamentally, the State was the owner of all. land. Christensen observes that the part of the Sasanian Empire which


was in the hands of this haute noblesse as fiefs did not cover as extensive an area as the vastly extended State domains which were administered by the satraps (marzubeins) 83

The Persian Church being a powerful etat ecclesiastique (iisrayan). formed a state within the State. During the reign of Shahpfir II, the province of Atropatene (Azerba'ijan) belonged to the Magians who independently governed these fertile lands; the higher clergy, next to the feudal nobility and dihans,

. without doubt, had their own vast landed estates.84

According to Ann K.S. Lambton, the Sasanian society based on strong family relations preserved the class structure. Vast estates were owned by the powerful aristocratic families. The feudal nobility paid taxes to the central government, dr to the

local governor or both, and were obliged to perform military services.

Next to, the feudal lords in the landed hierarchy were the chiefs of the villages, called dihnns, who controlled the local administration. They were also owners of land which they cultivated. They were obliged to collect taxes from the peasants for the government." According to Christensen, the dihqans constituted a class of noblesse inferieure who derived their power from hereditary possessions of the local administra-tion, and were of extreme-importance in providing a solid base for the administrative and political structure. As local chiefs and as proprietors of lands and villages they exercised great local influence; they did, not own big lands and even sometimes they were merely the first peasants of the districts. In his rela-tion to the peasants in general, unlike the high feudal nobility,. the dihqiin was simply a representative of the government to the peasants whose principal function was to collect land revenues. After the Muslim conquest, says Christensen, the Muslim conquerors were initially not able to collect as much land revenues as the Sasanian kings used to do with the help of these dihqeins.86

Throughout the Sasanian Empire the peasants, like those' of the Byzantine Empire, were attached to the soil—they were


also subjected to the compulsory corpie in addition to the taxes

and revenues. They also served as foot soldiers in wars. They

had little protection. by law; the feudal nobility and the dihgans

treated them as serfs. Christensen cites the famous Byzantine

author Ammianus Marcellinus, that "the landlords arrogated to

themselves rights of life or death over the slaves and the

people."87 The peasants, as we have said, were not protected

by law. Even a king like Hormizd IV, the so-called 'friend of

the people', when asking the soldiers not to oppress the peace-

ful people of the villages, did not mean the peasants but only

the di/it/tins. Though there is not much evidence, it is probable

that the condition of the peasantry, in relation to the landlords

was hardly different from that of the slaves: the peasants were

at the command of the landlords, they paid them the taxes and

were obliged to offer military service.88

Rents

Land and poll taxes levied by the Stisanians were mainly

derived from the peasantry : the entire civil and military

structure was based, like that of Byzantium, on the rents paid

by the tenants and sharecroppers who formed the majority of

the populace. Before.the administrative changes of Qubad and

AmashirWan in the sixth century, the land taxes and rents were

levied as a percentage of the agricultural produce (called khanij

muqasama by the Fuqahlt" at a later date) which ranged from

one third to one..sixth of the crop according to fertility and

irrigation of land.89

Yaqiit narrates a pathetic story of a woman and her child

which greatly moved Qubad to introduce taxes per unit of area

(misrrna of the Muslim jurists) rather titan a share of the

crop.90 This misaha was later followed by "Umar I after the

conquest of Sawad, "the rents and -revenues of Sawad were

assessed as a certain share of the produce of land (muqasama)

till the time of Qubad ibn Feltz who made a survey of the land

and measured the arable area, and then levied taxes on the

peasants." This method of muqasama continued in certain

provinces of Persia and it was known to the peasantry before

the Islamic conquests.9'


Lokkegaard has shown that in the Sasinian agrarian system land was considered a property of the State and therefore the land tax was considered as a kind of rent and that this theory

was further developed in early Islam, "appropriating it by degrees or rather extending it to include even allodial lands... the kharaj of the peasants becomes a real tujra, rent or hire price, while they themselves become tenants."92 What was the process under which this theory of kharaj as rent due to the Islamic State was elaborated? What is the relation of this theory to the doctrine of muzara'a? Clearly, this Persian theory of kharaj in terms of rent antedated Islam. Why did then the Fuqaha' legitimize the entire superstructure of economic and political regimes of the Umayyads and the ‘Abbasids (based as they were on muzara'a and the rents paid by the peasantry) on the model of Khaybar? These are some of the important questions which Lokkegaard does not ask, for he underestimates the role of the Fuqaha' in influencing and moulding the custom-ary tenancy laws of the Byzantine and the Sasinian Empires. We shall take up all these questions in the seventh chapter. We shall now conclude this chapter by the following observations :

First, in the Byzantine and the Sasinian Empires, the structure of the state, the civil administration, the state and crown lands, the church estates, the civic estates and the large private estates all depended largely on the rents and revenues derived from the tenants essentially perpetually tied to the lands by custom and by law. In the final analysis land was, in general, property of the king and thus land tax was a sort of rent due to the state. This theory of land tax as rent (or muzaraà), and the practice of tying tenants to the soil were two main features of these regimes of serfdom and Rentenkapitalismus.

Second, rents were more or less customary, a result of status and not of free contract in the Islamic juridical sense. They were compulsive; corVees were also added, and additional levies were sometimes imposed on the tenants. Inspite of the reforms of rulers like Qubad, tenants remained attached to the land for all practical purposes.


Third, these laws and practices of the two Empires formed

a large part of the expanding Islamic Empire, and constituted

the basic raw material for the Fuqaha'. With the emergence of

the Islamic state (particularly under • the Umayyads) the state administration, in order to regulate the entire structure and apparatus of state revenues, tended to control the system of

muzaraca. Thus the interpretation and application of the contemporary economic relations by the administrators, judges and the jurists started to influence the conception of the custom-ary. forms of tenure. This role of juristic-cum-administrative

interpretation and ijtihad grew considerably as the Umma further

developed and extended. The juristic interpretation of metayage

together with the gradual development of the Islamic Jurisprud-ence became increasingly elaborate and technical. The classical

theory of muzarda was elaborated and systematized by the

Fuqaha' and grew With the growth of the Umma.

Fourth, after the conquests of these lands Ùmar I immo-bilized the cultivated lands as well as the tenants and serfs

working on them.93 The Muslims were forbidden to acquire

them, for they had been made inalienable fay' of all Muslims.

In the next chapter, inter alia, we shall discuss the theory of

common fay' as formulated by Ùmar I; we shall also examine the theses of Frede Lokkegaard, Albrecht Noth and Werner

Schmucker relating to it.

172

NOTES

Abt1 Wulff, khareij, P. 27.

2. The Roman Empire, for administrative purposes, was divided into prefectures controlled by Praetors. The prefectures were subdivided into dioceses which were governed by the Vicars. These were again divided into provincetunder the governors.

3. A.H.M. Jones makes an- estimate from a Roman document of rental lists pertaining to some churches where almost 90% of all rents came from the church estates., The vast income of the Roman Senatorial families was derived from their large private estates. The Decurions, Magistrates of the towns, the civil servants of all categories, the professional classes, army officers, a great number of clergy, the navicuiarii (shippers), many merchants, craftsmen, urban workers, builders, potters, money changers, even a donkey man-all depended-on rents derived from the agricultural lands-which were probably the only safe and stable source of income. Arnold H. M. Jones, The Later Roman Empire : 284--602 A.D., (Norman : University of Oklahoma Press, 1964), 11, p. 769.

4. Xavier de Planhol, Les Fondements Geographiques l'histoire de l'Islant (Paris : Flammarion, 1968), pp. 52-53.

5. A.H.M. Jones, Roman Empire, II, pp. 773-77$,

6. John B. Bury, History of the Later Ronian Empire (London : MacMillan and Co. 1889), I, p. 46.

7. Allan Chester Johnson and L. C, West, Byzantine Egypt : Economic Studies (Princeton : Princeton University Press, 1949), pp. 69-70. Howard Comfort, Aegyptus, XIII, (1933), pp. 589-609. The peasants of some Byzantine villages in Asia Minor owned by the Church rose in revolt against their exploitation by the administrators of these villages who were appointed by the Church

Elizabeth Dawes and N. Baynes, Three Byzantine Saints (London : Basil Blackwell, 1948), pp. 139-140. The lives of saints can be used profitably as sources of data for the history of Byzantine agrarian practices.

8, Edward Rochie Hardy, The Large Estates of Byzantine Egypt (New York ; Columbia University Press, 1931) ; A. C. Johnson and L. C. West, Byzantine Egypt: Economic Studies, Germaine Rouillard, La Vie Rurale dans PeMpire Byzantine (Paris : Librairie d' Amerique d' Orient, 1953).

Byzantine and Scistinian Agrarian Regimes 173

9. Hardy, Estates, p. 145.

10. Rouillard, La Vie, pp. 16-17 ; Hardy, 'Estates, pp. 37-47.

II. Jones, Roman Empire, 11, 70. See also Carl H. Becker, Islam Studien,

I, 236 ff.

12. Hardy, Estates, pp. 44 ff.

13. For a detailed discussion of the process of patrocinium, the patronage

for integrating small holdings into large ones, see Johnson,

Byzantine Egypt, pp. 49-55 ; Hardy, Estates, p. 23 ;

Jones, Roman Empire, II, 778-79. And also P.R.L. Brown "The Rise and Function of the Holyman in late Antiquity", Journal of

Roman Studies, 61 (1971), pp. 85-87.

14. Georg Ostrogorsky, History of the Byzantine State (tr. from German

by Joan Hussey, New Jersey : Rutgers University Press, 1957), p. 27 ; and Q. Ostrogorsky, "Agrarian Conditions in the Byzantine Empire

in the Middle Ages", The Cambridge Economic History of Europe

(2nd ed. Cambridge, 1966). Edited by M. M. Postan, Vol. I, pp. 205-7.

15. Procopius 'of Caesarea, Secret History. Tr. Richard Atwater (Ann Arbor : University of Michigan Press, 1961), pp. 41, 59-60, 62-63, 90, 96-7, 111-14, Alexander A. Vasiliev, A History of the Byzantine

Empire, 324-1453 A.D. (Second English edition, Madison : University of Wisconsin Press, 1958), pp. 573 ff.

16. Courtenay Edward Stevens, "Agricultural • and Rural Life in the Later Roman Empire", The Cambridge Economic History of Europe,

Vol.', pp. 115.

17. H. Idris Bell, "The Byzantine Servile State in Egypt", Journal

of Egyptian Archaeology (Egypt, 1917), IV, pp. 101-102.

18. A.C. Johnson and L.C. West, Byzantine Egypt, p. 32.

19. A A, V asiliev, A History of the Byzantine Empire, 11, 574.


21. A.H.M. Jones, Roman Empire, 11, 778-779.

22." J.B. Bury, Later Roman Empire, II, 520.

23. Baladhuri, Fatah, p. 129.


24. W. Liebeschuetz, "The Finances of Antioch in the Fourth Century A.D.," in Byzantinische Zeitschrift, (52) (Munchen, 1959), pp. 344-355.

25. Coloni (singular, colonus, serf-tenant) is derived from the Latin word .colere, to till the soil. In the Byzantine Empire, the coloni were of three types :

(a) Originates : These were hereditary tillers of the soil, registered in their villages and compulsorily attached as farmer-tenants.

(b) Homologi They were like the originates, particularly in Egypt. They were burdened with liturgies and with cultivation of village lands. They could not leave the land they were tilling.

(e) Adscripticii They were tenants registered on the land. Originally they were peasants of free status in Egypt who sought

the patronage of some powerful landlord. As tenants, they were bound to pay the rents in money or in kind.

Johnson, Byzantine Egypt, p. 29.

26. Bell, "Servile State," p. 101 ; Bury, History, I, 55 ; Johnson, Byzantine Egypt, pp. 23-32.

27. Bell, "Servile State," p. 101.

28. G. Ostrogorsky, Byzantine State, p. 37. Also see his Zur Byzanti-

nischen Geschichte (Darmstadt: Wissenschaftliche Buchgesellschaft,

1973), p. 2 ; For the origin and historical development of colonate,

see M. Rostowiew, Studien zur Geschichte des rOmischen Kolonates

(Leipzig : B.G. Teubner, 1910). For a summary of various theories

of its origin, see Roth Clausing, Roman Colonate : The Theories of

its Origin (New York : Columbia University, 1925).

For a recent statement of the problem of colonate particularly in the fourth century A.D. see Walter Goffart, Caput and Colonate : Towards a History of Late Roman Empire (Toronto : University of

' Toronto Press, 1974), pp. 66-90.

29. Quoted by Courtenay E. Stevens, "Agriculture and Rural Life in the Later Roman Empire," The Cambridge Economic History of Europe, I, 123-24.

30. Samuel P. Scott, The Civil Law (Cincinnati : The Central Trust Company, 1932), XV, pp. 210-211 ; Jones, Roman Empire, II, 794-95.

31, Bury, History, I, 56 ff.

Byzantine and SiTednian Agrarian Regimes 175

32. C. Pharr, Theodosian Code (New Jersey : Princeton University,

1952), p. 115.

33. Ibid., p. 115.

34. Ibid., p. 116.

35. C. Pharr, Theodosian Code, p. 116.

36. Samuel P. Scott, The Civil Law, XV, 209 (The Code of Justinian :

Book XI) ; and Jones, Roman Empire, II, 797.

37. S.P. Scott, The Civil Law, XV, 201 (The Code of Justinian

Book XI),

38. Roth Clausing, Roman Colonate, p. 169.


40. Ibid, pp. 76-78 ; See an Egyptian surety deed for a serf, 579 A.D.,

in Arthur S. Hunt and C.C. Edgar, Select Papyri : Non-Literary

Papyri (London : W. Heinemann, 1932), 1, 77-81 ; Charles M. Brand,

Icon and Minaret ,(New Jersey : Prentice Hall, 1969), pp. 69-70.

41. Justinian wrote to John, the Praetorian Prefect : "As it would be

extremely unjust for land, which was in the beginning provided with

serfs, afterwards to be deprived of its members, as it were, and serfs residing on the lands of others to cause serious loss to the owners of the land, we decree that, as in the case of decurions, no one is released from his obligation by lapse of time, so those

belonging to the condition of serfdom cannot be liberated by the passage of years ; nor can any one of this class claim his freedom on

account of any protracted negotiation, but he shall always remain a

serf, and be attached to the glebae, and if he should lie concealed,

or attempt to withdraw from the soil, he shall, like a fugitive slave, be understood to have stolen himself by long-continued treachery,

and shall remain in this class, together with all his offspring, and shall be liable to the payment. of quit-rent, from which he cannot

be released by any act of generosity whatsoever." Scott, Civil-

Law, XV, 202.

42. Some other laws of Justinian throw further light on this legal

serfdom. A law of his forbids the disposal of the "rustic slaves and

registered serfs" separately from the land. "If a land or a certain

part of it is sold, the same proportion of slaves and serfs shall pass

with it." Scott, The Civil Law, XV, 201.

Byzantine and Sasanian Agrarian Regimes

177

(43) They leased them for life terms to emphyteuticarii, or perpetuarii

(also called possessores and conductores). These three methods

were used in different combinations by different landowners, whether crown, church, private owners, great or medium. Jones,

Roman Empire, II, 788.

56. Ibid., p. 775.

57. Clausing, Colonate, p. 167.

58. Jones, Roman Empire, II, 795 ff.


60. Originally, in theory, under the Roman law, the coloni leased land

under a formal contract, known as locatio-conductio, which was as binding to the lessor (locator) as to the lessee (conductor). The

duration of the lease was usually the period of lustrum, five years.

The rent was a fixed sum of money. Clausing, Colonate, p. 262.


62. Scott, "Code of Justinian, Book XI", The Civil Law, XV, 208.

Clasuing, Colonate, pp. 23-24. Hardy, Estates, pp. 90 ff.

Forced labour, earl*, was usually added to the rent. Clausing,

Colonate, p. 148.

63. Scott, Civil Law, XV, 207.


65. Rouillard, La Vie, p. 26.

66. See above, pp. 10-26.

67. 11. Comfort, "Prolegomena to a Study of Late Byzantine Land

Leases," Argyptus (1933), XIII.

68. Ibid; Johnson, Byzantine Egypt, 77-82.

69. Jones, Roman Empire, II, 803.

7.0. Ibid, 803-804. According to C.H. Becker, leasing of land in Egypt

was done in four main ways :


"We desire that slaves, tributary serfs, or tenants shall remain

with their masters...if any one of these fugitives should be found, he

who is harbouring him shall pay twelve pounds of gold to our

Treasury...he must not only return the fugitive to his master, but

also give him another slave of the same value, in addition." Ibid., p. 203.

"No collector of debts Owing to the Treasury shall ever, in the name

of their masters, molest serfs Who are indebted to it, for the reason

that we declare that serfs are so absolutely attached to glebae that they should not be removed for a single instant of time." Ibid., p. 203.

43. Ibid., p. 211.


45. Ibid., pp. 801-803.


47. Ibid., p. 796.


49. Ibid., p. 32.

50. Vasiliev, Byzantine Empire, p. 247.

51. Jones, Roman Empire, 11, 796.

52. Rouillara, La Vie, pp. 14-15.

53. In FugaluVa formulations this tenancy came to be khown as khan!) muqasama, i.e., land tax as a certain share of the crop.

54. Clausing, Colonate, pp. 151-55 ; Bury, History, I, 28 ; Jones, Roman Empire, 11, 811.

55. Big estates were managed by their owners in three broad ways :

(1) Through agents (procuratores, actores).

(2) They leased the estates for short terms to contractors (chief- / tenants or etneluctores).


(a) locatio-conductio

(b) ius perpetuum salvo canone

(c) ius privatum salvo canone

(d) emphyteusis

He further subdivides ius perpetuum salvo canone into : Zeit pacht (locatio) ; Erbpacht, i.e., hereditary lease or tenure in the form of emphyteusis, and concession with perpetual rents. C.H. Becker, blamstudien, p. 225.


72. The price of wheat In Egypt Was usually ten artabae per solidus. Ibid., 801. •

73. Ibid.

74. An average yield was low by modern standards. In Egypt, says Jones, one artaba (usually 31/3 modli - modius was the principal dry measure of the.Romans, and equalled approximately two gallons) to the antra (2/3 acre) and ten-fold return was normal. If land was• let for a share of the crop, the tenant and the landlord divided the crop almost equally. If rent was paid in kind, it was normally five artabae to the arura. The tenant of a vineyard paid 2/3 or 3/4 of the produce to his landlord. Ibid., 767-768. •

75. Johnson, Byzantine Egypt, p. 33.

76. Scott, Civil Law, XV, 223-225.

77. Jones, Roman Empire, II, 779 ; See also Georg Ostrogoraky, "Agrarian Conditions in the Byzantine Empire in the Middle Ages", The Cambridge Economic History of Europe, Vol. I, p. 228 ;. and H. Comfort, "Late Byzantine Land Lease : Leases of Indefinite .Term)," Aegyptus (1934), XIV, 80.88.

78. Scott, Civil Law, XV, 223.

79. Becker, Islanistudien, I, 221-233.

80. Tabari, Ta'rikh, V, 2534.

81. A. Christensen, L'Iran sous les Sassanides

E. Munsksgaard, 1944), pp. 103-6 and 216. (Copenhagen;

$2. Ibid., p 216.

83. Ibid.,•p. 106.

Byzantine and Sasiinian Agrarian Regimes

179

84. Ibid., p. 116; Ann K.S. Lambton. Landlord and Peasant in Persia,

p. 14.

85. Ann K. S. Lambton, Landlord and Peasant in Persia, p. 14.

86. Christensen, L'Iran, pp. 112-13.

87. Christensen. p. 316 ; Lambton, p. 14.

88. Tabari, Ta'rikh, IV, 2026, 2028, 2030 ; Christensen, L'Iran, p. 321.

89. Yaqiit, MaVam, III, 175 ; Tabari, Talrikh, I, 960; Christensen,

L'Iran, p. r124 ; D.C. Dennett, Conversion and Poll-tax in Early Islam

(Cambridge, Massachusetts : Harvard Historical Monographs, 1950),

p. 14. M.G. Morony, "Transition and Continuity in Seventh Century

'Iraq" (Unpublished Ph.D. Dissertation, University of California,

Los Angeles, 1972), p. 102.

.90. The stroy which Yaqat has recorded cannot be of any strict historical value but it nevertheless illustrates the general condition of the sharecroppers, and enforcement of rents in the Persian Empire. One day when Qubad was on a hunting trip and was chasing an animal, he came upon an orchard, where he saw a woman baking bread and by her side was a female child. As she was busy baking bread, the child was persistently trying to dodge her inorder to go to the pomegranate tree to pluck the fruit ; she would run behind

her and stop her from plucking the fruit. This continued till she had backed all her bread, while the king watched all this. After-wards.he sent for that woman and asked her the reason for preventing the child from eating the fruit. She told him that a share of the

fruit belonged to the king (as tax): and as his assessor had not yet arrived, estimated and taken possession of the produce "the truits are trust on our necks. It is not lawful for us to take them unless the king has first of all taken out his own share." This plight of the tenants moved Qubad and he told his ministers that the peasantry was indeed groaning under the 'heavy burden of imposts and rents, and they possessed little of the produce of their lands, for they had been deprived of their crops. So; says Yaqfit, inorder to change

his fiscal policy, he decreed to make misdha the measurement of land

as the basis for levying taxes on every jarib tit certain area of land)„

This was levied per unit of the area based on a rate schedule varying

according to the type of crop and amount of irrigation. Aniishirwan

implemented this policy. Yaqin, Mrejam, III, 175-78. Also Tabari,

Ta'rikh, I, 960-62.


to the fay' of the Muslims was like the trustee or legal guardian (wasiy) of an orphan's property who refrains from exploiting it

for his personal needs if he is rich, and if he is poor he eats

from it righteously. For this reason Abu Bakr used to draw from the Bayt al-Mal a salary of three dinars everyday. In the first year of his Caliphate, when he started distributing fay'-shares, he

. gave equal pieces of ten coins each to free and slave, man and woman, great and small ; next year when the fay' revenues had increased he distributed twenty pieces each.; His principle was economic equality (tasiviya) in the distribution of fay': he never made any distinction among Muslims whatsoever.4 Before,he died he expressed the view that he was eagerly deSirous of augmenting the fay' of the Muslims ( tawfir al-fayt).6 At the time of his death, says Ibn Hajar, he left no dinar and dirhem;6 he left only one servant, one milch camel, and one milking

vessel.? Before he died he asked his daughter À'ysha to return the

dchard of Bi'r Hajar (in Banu Nadir) to Muslims, which

he had given to her as a gift. He declared that his family had no right upon the fay' of the Muslims. "Everything small or big", he said, "belonged to the fay', except a servant, a camel, and a piece of coarse garment. Ùmar I took hold of all his property on behalf of the Muslims.8

This shows that the conquered agricultural land and its income belonged to the Muslims as their fay', and that a grantee of a piece of land had right over its produce/fttma during his life time only. The fact that fay', in theory and practice, early became to be regarded as the common property of the Muslims,

and that it was organized as a politico-economic institution is

indeed evident from the sources; the concept was, however, not so greatly developed earlier as it became under `11mar I. Never-theless, it is clear that under Abu Bakr fay' (like qada') became an important social institution under which equal allowances

were given to the Muslims. Abu Ùbayd records that Abu Bakr was asked to divide fay' according to an individual's

religious status and position. Upon this he deblared that righteousness and virtue (tafdil, slibiga) were matters to

be rewarded by God, but as far as the problem of livelihood and

Theory of Fay' 183

economic life (ma'ash, halti*h) were concerned they were better

sustained by economic equaiity than by such privileges.9

This economic equality in its distributive aspect was also

characteristic of the economic policies of 'Omar I during the

later parts of his Caliphate and of ‘A11.19 Abu Ùbayd adds

that according to Sufyan iba 'Uyayna. (d. 198/813-4), the famous

Meccan traditionist, the economic equality followed by Abu

Bakr may be explained with reference to the fact that Muslims

are all sons of Islam, i.e., members of the Umma which implies

that they are brothers and inherit from their father equally.

This makes them common owners of the inherited property with

equal shares. It is immaterial if some brothers are superior to

others in moral excellence, virtue or in religious and spiritual

attainments. He says that 'Umar differed this point and

gave preference to religious merit and services to the cause of

Islam, on the analogy that full sons in matters of inheritance are

not like the sons of the same fattier by different mothers (bane

Aba 'Ubayd himself 'comments that property belongs

to all the sons of Islam; however, those who are preeminent in

defending and promoting the interests of Islam have indeed

the rights of taffill (preferential treatment). He considers

Sufyan's explanation of equal distribution of fay' as the best

interpretation of the subject he has received.12

, What precisely was Aba Bakr's over-all policy regarding

the newly conquered lands is not, however, very clear; the reports

we have seen mostly relate to certain 'Arab lands like those of

Banu Nadir, and to the takes which were now constantly flowing

from the conquered lands to the central government in Medina.

During the period of two years and three months of his Calipha-

te the concept of fay' was not Yet fully formulated as it

was done under 'Omar I, because the expansionist process of

great conquests was just beginning; the idea- of fay' at this

stage was formulated in terms of shares or allowances divisible

among the Muslims. This fay', irrespective of the extent of its

content, early became a sacred and inviolable common property

of the Muslims. As we have seen, this conception originated


in its essence with the verses of the Surat al-Hashr (Qur'an,

LIX : 6-10). Under the limited circumstances of these early

days it was implemented by the Prophet himself. The theories of common fay' and taswiya were two essential components of

the vital inner evolution of the whole developmental process which started with the conquest of Band Nadir and which

reached its climax when Ùmar I immobilized the lands of

Sawad, Syria, Egypt and other regions.

Because of the fragmentary evidence and paucity of docu-

ments, we are not in a position to discern in a certain and

positive manner the clear contours and configuration of this

early development. Yet, from the evidence in the literary

sources it is natural to infer that the hypothesis which assumes

that the concept of fay', originated as a common and -inviolable right in the early period has a greater probability than the thesis

1 advanced by Lokkegaard and Schmucker.

Lokkegaard claims that this idea of fay' is a late develop,

ment by the lawyers-jurists under the Umayyads.13 Schmucker

categorically denies that any concept of fay' could develop under

the Prophet or in the early Caliphate of Abd Bakr and Ùmar.I4

Such 'a priori' and sweeping judgments can only be confirmed

if they can-clearly explain or can be explained by the general social and economic background of the period under discussion.

Otherwise the idea of an anachronistic imputation is obviously far-fetched, because this hypothesis does not explain adequately

the social circumstances and the economic context which could

possibly negate the development of fay'-concept in the Prophe-

tic period.

As we have discussed before, Islam emerged as a well knit

cohesive Ultima based on ideas and institutions strongly tinged

with the consciousness of a collectivity, whether it was expressed

in the religious concepts of .Fatit (congregational prayers five

times a day), pilgrimage to Mecca (LAW), or the economic

concept of Zakat (poor-tax). We have seen that the notion of

fay' originated with the conquest of the lands of Band Nadir

and other territories, and with the revelation of thefay'-verses-

which has been corroborated by almost all the Muslim

Theory of Fay' 185

historians, traditionists, jurists and commentators of the

Qur'an.

Our own assumption, it must be acknowledged, is an

alternative conjecture which itself needs to be critically evalu-

ated. Hence the question may be asked : if the concept of fay'

is primitive and earlier than the Umayyads, why were then all

lands of Band Nadir and Khaybar not made a common fay' by

the Prophet -himself ?. Why is this attributed to Ùmar I ?

This seems to be the apparent difficulty which has led Abd

Ùbayd to offer an implausible explanation that while the

Prophet had applied the verses of.ghantma (VIII:42) to divide the

lands of Khaybar, Ùmar I had applied the.verses of fay'. (LIX

6-10), making the conquered lands an inalienable common fay'.

Both these interpretations and applications, • therefore, -says

Abd Ùbayd, are not contradictory to each other but constitute -

models and precedents for the imam (public authority) who may apply either of these laws as the situation demands—this has

been called option or khiyar of the Imam in the case of ànwa-

lands."

This question of'"the option of the Imam" we shall have occasion to discuss under the main theories of the Futgaha'.

Abu 'Ubayd's statement that all Khaybar was divided is inaccu-'

- rate. We have already seen, that all Khaybar was not divided—

a major part of it was immobilized. This difficulty can be

• removed if an adequate explanation of the evolution of the

land policy is given.

Under the Prophet (and Abd Bakr) the Dna/a had not yet experienced any great expansion; the population of the

Muslims could be economically taken-care of by the new con-

quests within the 'Arab Peninsula insofar as these lands were

directly administered by the Prophet himself; his main policy in

this regard was to remove the poverty of the Muslims by different

means, whether by Zakat—taking surplus Wealth of the rich as tax and paying to the' poor—or by declaring 'some lands as wave or instituting some of them as food-grants (itt'am) for life, and granting others some to develop "dead" and


abandoned lands with a view to augmenting the productive resources of the Umma. The concept of fay' at the nascent stage of development was not consciously formulated as an independent theory or a formula. It adumbrated a general concept of the Utntna, a collective but nebulous idea slowly emerging as a regulating principle of economic life. For this reason the measures of partly dividing and partly immobilizing lands were actually ad hoc measures, a logical first step. This fully explains that the general policy of 'Omar in immobilizing the conquered lands was in perfect accord with the land policies of the Prophet and the first Caliph Abu Bakr—both of them had established an economic regime of egalitarianism based on the principle that Muslims as members of the Umma were generally

equally entitled to the rights and privileges accruing from the

conquered lands.

The confusion in the theory of fay' is due not to its suppo-sed late development under the Umayyads but rather, as we shall see, to various interpretations of the jurists which naturally ' attempt to see the development from the angle of. their' own suppositions. In the strict application of the principle of

fay', the sources unanimously say, Abu Bakr considered

Fadak, the Prophet's sadaqa (charitable endowment) in Medina

and his ordinary share in Khaybar as Anna (food grant) for the

Prophet as long as he was alive; after his death it reverted to the

Muslitns.16 Atimad Muhammad Shan, therefore, thinks that for this reason Abii Bakr refused to agree to Fatima's plea to

make 'Ali an incharge of this sadaqa.17

Moreover, as we have said before, it is hard to imagine that all the famous commentators of the Qur'an, and all the traditionists and historians who have narrated and discussed this concept and have categorically stated that the institution of fay'

was original and primitive, have implicitly or explicitly acquies-

ced in the line of the later Fuqaha' who are supposed to have

concocted the fanciful theory of common fay' and artificially

grafted it to the Quelnic verses, as - Schmucker alleges.18 This

'a priori' negative judgment can also be refuted if a clear. comprehension is made of the whole socio-economic situation

Theory of Fay' 187

under Abu Bakr, which will make such a thesis less probable.

It must be noted that Abu Bakr's arduous struggle against the rebellious apostate tribes, called in the sources Ridda wars, had a politico-economic basis as well. He had to declare war against those tribes which had refused to pay the obligatory tax of Zakat to the central treasury in Medina. This not only consti-tuted a threat to the central political authority but also menaced the economic structure in general and interests of the less privi-

leged classes of the Muslims who were the rightful owners of this wealth collected from the rich, in particular.19 C.H. Becker says that the fight against the Ridda was not a fight against apostates; the objection was not to Islam per se but to the tax (of Zakat) which had to be paid to the political authority in Medina.29

It follows, therefore, that the concept of fay' as a principle of egalitarianism and a common property of Muslims (in the form of equal shares from booty and land taxes) was a consistent ' and significant part of the economic regime under Abu Bakr; its further development as a definitive principle tonic place under `Umar Ibn al-Khattab.

`Umar I and the Theory of Fay'

The land policy of 'limas I (13/634-23/644) represents the culmination of the development of the theory of fay'. Under him fay' was conceived in clear terms as common (conquered) lands of the Muslims—then present as well as the future genera-tions. This concept therefore came to signify the immobilization of the conquered land from which taxes were derived to be spent for the common good of Muslims. The immobilization of lands 21 has been variously termed in our sources as waqf or Nabs (mortmain), fay' al-Muslitnin (conquered lands of the Muslims), maddat al Muslimm (a material possession or substan-ce of the Muslims), sadaqa muharrama (an inalienable public property), Khalil./ and dhimma-lands (lands in possession of

dhimmis in exchange for land taxes).22

How were these newly conquered lands disposed of by the

188 sLandlord and Peasant in Early Islam

Islamic State ? What were their main categories, and what became of the Byzantine and Sasanian estates and those lands which were abandoned, and of the peasantry, coloni and Viii—the serf-tenants ? What were Ùmar's motives for immobilizing these territories ? What is the relationship of this policy to the theory of muzarcea ? What is the significance of the theories of ̀ anwa and Isulli lands for the theory of fay' ? Was this theory of "common's fay'-lands a product of the Umayyads, tendentiously ascribed to Ùmar I ? These are some of the questions which will engage us in this section.

Yafiya ibn Adam reports that, when these lands were con-quered, Ùmar consulted the Muslims about the method as to how to dispose of them ; when he came upon the fay'-verses of the Qur'an (LIX: 6-10) he read out the same to them, interpreting that in the fay' of these conquered lands every Muslim had a

bright except a slave.23

Abu Yasuf relates that Zuhri had reported that 'Iraq and Egypt were conquered under Ùrnar ; the Muslims demanded that the lands be divided among the conquerors. Upon -this Ùmar reasoned that such division would deprive all other Muslims of their wealth ; he therefore left them undivided. He imposed jizya and kharaj. Abu Yasuf further says that upon the conquest of Sawad,24 Ùmar called the Muslims for consultations whether or not to distribute the lands and the ̀ uhif. People like Bildt ibn Rabat) and 'Abd al-Rainan ibn Àwf pressed for division. On the , other hand, men like 'Uthman, 'Ali, Tallia and Muiddh favoured tmar's own inclination for their immobilization. So in his support ‘Umar quoted the fay'-verses

and finally decided not to divide the lands which would deprive the future generations of a valuable source of wealth ; therefore, he declared these lands to be common fay' of the Muslims and left them undivided—he imposed kharaj and jizya on dhinunis.23

Thus, Ùmar's decision of not dividing these lands was . obviously based on the Qur'anic verses—which we have already

liscussed in detail. 'Omar explained that all these verses (LIX : (6-10) comprehended (istawrabat) not only all the Muslims then

Theory of Fay' 189

present but also those who would come later, man faro bardahum.

On this, Abu Yfisuf comments that Ùmar had thus followed the Qur'an in promoting the common good.26 When Said ibn Abi

Waqqas had conquered Sawad, reports Baladhuri, Ùmar wrote to him that the moveable goods captured by the soldiers must be distributed among them, except the khwns or one fifth of the entire booty.. _The lands and the rivers must be left to the tillers

of the soil (ùrnma/) so that allowances (artiyat) could be given to the people from the revenues. If the lands were to be dis-tributed, wrote 'timer, nothing would be left for others.27

Ùmar's main rationale, it seems, was that one group or class of people could not at any cost be allowed to become owners of these vast territories and the serf-tenants working on them. "On no account can these be distributed and made

alienable and heritable private property of those Muslims who happened to be the actual conquerors. If these lands had been divided, these and other lands captured in the future would later have all become a burden on the Muslim Community, for none would be ableto defend the frontiers, and there would be no maintenance for families and widows".28

Abu 'Ubayd says, "the main motive of 'timer was to make these lands fay' tnampafa, i.e., inalienable, immobilized mortmain

of fay' for Muslims as long as they lived and procreated—one generation inheriting the lands (as trust) from the other so that this becomes for them a source of power and strength., against their enemy ( . an takuna fay'an mawaafan lil-Muslimin ma

tanasalli yarithuhu qarnun 'an qarnin, fatakunu qunrwatan lahum 'Ma àdunsvihitn).29

This policy of immobilizing the lands can also be explained by the fact that their division among the conquerors would have resulted in lesser revenues for the Umma as the lands in this case ,would have become private rushri lands which pay to the Islamic State, one tenth of the produce as., tax, while Kharaj or dhinna-lands pay usually one half or one third or one fourth of the produce. From fiscal and military. points of view, this policy could have played havoc with the entire socio-economic


structure of tile State, as Abu Ynsuf points out.30 Therefore, the hypothesis that Ùmar I originally divided the conquered lands (except the sawafi type) seems to be highly improbable and must be rejected for the overwhelming evidence which we shall presently give in the following pages.

Abu rtIbayd does not see any apparent contradiction between Ùmar's policy of fay'-mtnvgafa and the Prophet's policy of so-called distribution of land as ghanima, as we have seen in a previous section. He thinks that the famous saying of 'Omar ["Had not been there the future generations he (Ùmar) would have distributed all conquered villages as the Prophet had done at Khaybar"j31 does not mean that this policy of Ùmar violated the Surma of the Prophet. "The point is that," he says, "as Sufyan ibn Sa'id had aptly remarked, the crucial problem in this connection is the general welfare of the Muslims:—the Imam can follow any policy in ànwa-land which is beneficial for all."32 We shall now examine other important reports which unanimously confirm our hypothesis that these lands were not dis-

tributed to create private estates of the MuslimrArab aristocracy.

It seems that after tne islamic conquests the colon! and ù/aj continued to be tied to the land for political and fiscal reasons. C. H. Becker says : "Die Bauern selbst waren an den Boden gebunden. Ein Ortswechsel war ihnen nur gegen Pass erlaubt. Durch die gauze Frithzeit des Islam zieht sich der Kampf gegen die Landfiucht dieser Kolonen (galija).33 The feudal landed aristocracy in Persia and Sawad generally disappeared ; the Persian &harms retained the local administration and contiued collection of taxes from the Kharaj-lands.34 After the conquest, Egypt was also directly controlled by the central government in Medina. This brought the large Byzantine estates to a sudden end as all Egyptian land was also immobilized for the Umma.

Hardy, however, states that a class of Coptic landlords still existed (this appears to be a confusion with sulk-lands which were left in the possession of dhimmis). He adds that the pagarchs (local tax-collectors) henceforth became the agents

Theory of Fay' 191

of the Muslim governor at Fustalt.35 Now, the feudal owners of these lands were gone and these vast tracts of land were at the

time becoming ownerless—these were now immobilized, which means, in theory, the Muslim Umma was the uncertain owner.

Uncertain, because this was not a concretely formulated concept ; in the Islamic legal thought the concepts of ownership,

possession and usufruct (manfa'a) have not been clearly and

sharply defined.

These concepts are very closely related to the theories of

sun? and ànwa-lands which we shall discuss shortly. It must be emphasized that although ownership of these lands, generally

speaking, in the early period, belonged to the Umma, and rights

to possession and usufruct could be bestowed on individuals, all 'these notions were fluid. The people of sail, and ganwa-lands

were, as such, left in precarious possession of these lands. However, these ideas (of possession, ownership etc.,) were not outlined precisely which later created much confusion so much so that the whole gamut of these concepts was reformulated by the Umayyads and a new orientation was given to the institution

of fay'. This will be discussed under the land policy of the

Umayyads.

Coming back to Ùmar's policy, it is reported that before he reached his final decision he tentatively wanted to distribute Sawad. He had the land surveyed and it was found that every Muslim would get (land with) two or three tillers (fallaltfin,

Àli suggested that the lands (and the serf-tenants) be made madda (a substance or source of income) for the Muslims and thus immobilized.36 But there was also a strong opposition to the idea of immobilization. This latter viewpoint considered the lands and_ the serf-tenants attached to them as booty and hence private property of the Muslim conquerors.37 This was

considered impracticable and inconsistent with the general interests of the Community. Eventually Ùmar decided upon the former course, and made the lands ',tabs (trust) with the 'Wu/ tied to them. The taxes of kharaj and jizya accruing from them Were made fay' for the Muslims, for the mugati/a (fighters), for


their families and for those who would come after them. This

policy of Ùmar, remarks Abu Yusuf, was in complete accord with the injunctions of the Qur'an and the Sunna of the Prophet.38 As said before; 'All was also against distributing parcels of land in Sawad which according to him would have created landlordism in Islam.39

Another important tradition says that when `1Imar came to

Jabia,,he wanted to distribute the land. Midadh ibn Jabal dissu-

aded him from•doing this. He argued : "Then indeed will happen

what you dislike. 1f you are going to divide the land the huge • source of production and revenues (ray' aPazim) will'then fall into the hands of :a small group ; this group will finally perish

and the lands will be inherited by a single man or a woman. At the'same time other Muslims will come and find their way

blocked in Islam : they Will not find anything at all. So you

3should take into consideration the solution which benefits the present as well as the fUture generations."40

All this shows that Ùmar's policy of making all conquered lands a way f for the Muslims—present as well as the future generations—was in the main consistent with the policies of the Prophet and Abu Halo-, with ,the difference that under them land did not constitute a large part of the total fay'.4 I 'Umar now clearly formulated the definition of fay' in terms of common land. "As for his (i.e., a dhimmi who becomes a Muslim) land and his dwelling-place", says a rescript of 'Umar Ibn Àbd al-'Aziz, "they are the booty (fay') which God had given to • the Muslims collectively (fay' iimma)."42 Another part of the script which Gibb considers to be "the most revolutionary" paragraph . states : •

As for the, fifth (khums) the previous Imams have disagreed as to its application, so that in regard to this, certain

among the people have made accusations and have freely repeated them, and the fifth has been applied in diverse

ways. Wherefore, we have considered the matter and behold, it is according- to the portion of the fay' in the Book of God, neither of the two differing from the other. Now

Theory of Fay' 193

Umar ibn al-Khattab, God's mercy on him; gave a decision

in regard to the fay' with which the Muslims were satisfied ;

he assigned to pepole pensions and provisions which should

be regularly issued to them ; and having seen that by pay-

ments under these heads he would never reach the total

sum collected in fay' he considered that there should be a

share in it for the orphan, the destitute and the wayfarer.

Wherefore, he held that the Fifth should be incorporated in

the fay', and that it should be applied to the purposes

named and ordained by God. This he did only that he

might hold himself free from all blame in regard to it, and

lest any suspicion attach to him. So do you then follow the

example of a just-dealing imam, for the two verses, the verse

of the fay' (LIX :7-10) and the verse of the khums (6) are in

agreement. For God hath said, "whatsoever God giveth

as fay' unto His Apostle from the people of the settlements,

it belongs to God, and to the Apostle, and to the near of

kin, the orphans, the destitute, and the wayfarer (s. LIX : 7);

and so likewise God ordained the distribution of the khums.

Wherefore, we hold that they should be put together and

applied as fay' for the benefit of the Muslims, and that it

should not be appropriated as private property to the detri-

ment of the Muslims, nor become "a commodity circulating

among those of you that are rich".43

From this long quotation Gibb infers that the one-fifth of

fay', which at the option of the ruler could be made wag f or

could be distributed as private estates, was treated by 'Omar I

as waq f for the generality of the Muslims. Ùmalr II therfore

regarded private estates from the saw/riff-lands being in principle

contrary to the Qur'an.44

It follows then that this concept of fay' as common property

of the Muslims is an original and primitive concept as the rescript

of ‘Umar II points out. This concept was the motivating factor

for establishing the system of Diwan by Ùmar I in 15/636-7, which

apportioned stipends or actiyat among the Muslims. "As fay'

belonged to the Muslims and their families," says Tabarl,

"allowances were fixed by him. By this principle the ruler was

1


not allowed to appropriate anything from it except which is absolutely needed by his family. This was the characteristic feature of Ùmar's land policy in regard to the fay' of Sawad, Syria etc."45

Another report iff Tabari, again, brings out the essentially • social, significance of the idea of fay'. It is reported that a large Persian carpet was brought to Medina as part of fay', in the year 16/637-8. Ùmar did not know how to dispose of it. It was suggested to him that he should keep it for his own use. This brought a strong protest from 'All, who, addressing 'Omar, said t "Why, are you going to feign ignorance (that you do not know the requirements of fay') and thus change certitude for doubt. In the world (of economic matters) you can own nothing except that which is given to you and you instantly consume it ; or the

.3garment which covers your bare body and is thus used up ; or the food you have eaten "(i.e., no luxuries are allowed but only necessities). Ùmar, thereupon gave up his plan and cut the carpet into small pieces and distributed them among the people.46 In 13/634-5, the Persians offered some food and presents to Abu Ùbayd ibn al-Jarrah at Kaskar (Sawad), but he refused to accept them because they belonged tb the common fay'. 47

These reports do not relate.to land, but hoivever, they evince a strong consciousness of social solidarity and a clear notion of sharing fay' in common ; they cannot be construed as mere idiosyncrasies of certain very pious Muslims. Whether fay' comprised lands, chattels or stipends, or whether it was con-quered by force of arms or by peaceful means, it belonged to the Muslims as members of the Umma. This brings us to the concepts of sulk and 'anwa-lands as formulated by the jurists.

Concepts of Sulk and Àmva-lands

shawl- observes that because of the conflicting nature of traditions he does not know for certain whether Sawad was conquered ànwatan or sulljan.48 This characterization of Sawad raises very fundamental questions about the origin and signifi-cance of 'anwa-sulk complex which the Fugalur and the historians

Theory of Fay' 195

so elaborately discuss in the context of Fuca* (conquests). Abu

ellbayd also significantly states that Àbd Allah ibn Mas‘ad, Muhammad ibn Sirin and Ùmar II are reported to have allowed

ownership (dukhid) of Kharaj-lands whether ̀ anwa or su/lj.44

The question now arises : why did these prominent and pious Muslims- allow these Kharaj-lands as individual property

of Muslims, when, it is also reported that these Kharaj-lands were

made inalienable common fay' ? Were the theories of the Fuaahie

mere rationalizations of the contemporary situation ? Was the theory of `common' fay' an invention of the Umayyads who, in order to control rents and revenues, discouraged Muslims from buying Kharaj-lands ? Before vve investigate these questions it is pertinent to give the Fuqaha's formulation of sulk-ànwa

theories.

For Yal.iya ibn Adam, "anwa-land is essentially at the disposal

of the Imam who may, using his discretionary judgment, distri-

bute it after deducting a khums from it—or he may make it a fay'

of the Muslims and thus leave it undivided perpetually after con-sulting (Muslims) and using his own discretion, because the Pro-phet had immobilized (waqafa) some of the lands which he had conquered and some of them he distributed. He also relates from Sufyan ibn Said al-Thawri and Hasan ibn Saliti (d. 169/785-6) who maintain that fay' comprises those lands which fall peace-fully, stipulating the taxes of jizya and kharaj—this is not subject to a khums, for it belongs to all the Muslims (li janri` according to the verses of the Qur'an (LIX : 6-10). Sa'id further adds that some of the Futfaha' hold that from this land no

khums can be deducted, because it is a fay' and not a ghanima.

Ghanima is not made waqf (li'anna al-ghanima la tfiqaf).50

It is further clear that for Yahya ibn Adam ghanitna of chattels, like horses, weapons, and goods is :not immobilized (MAW), but as regards villages, towns and lands, they are all fay' (as God says that whatever He has made return from the people of the villages to God and His Messenger . ).51 However, khiyar (option) in these matters belongs to the Imam in respect


of division or immobilization.52 It follows from this that what-

ever discretionary interpretation and judgment the imam exercises, fay' (of conquered land)—suil, or ànwa —belongs to the

Muslims.The concept of the khiyar of,the Imam actually tries to

harmonise two conflicting attitudes of communal and individual ownership of land. In general terms, however, the .concept of

collective or communal fay' preceded that of individual fay'. Both

categories of fay' — u112 and canwa—therefore, according to the

earlier Fuqahr, in theory at least, belonged to the- Umma as

a whole.

The theory of Malik ibn Anas in this respect is that ànwa- ,

• land is basically a fay' of the Muslims. Even if a dhimmi who is

subject to the tax of kharaj, becomes a -Muslim on an ànWa-land,

the land will continue to be a part of the total fay' for the

simple reason that thisland was . originally conquered by force

of arms and thus became a fay' of the Muslims (sarat fay'an lit-

Muslimin). On the other hand, says Malik, owners of sulk-lands

have immuned (manaà ) their lands and lives by a slit/J.-agre-

ement ; nothing can be imposed on them except the stipulated

fiixed amount of tax they agreed to pay at the time of the treaty.

They retain the right of possession of these lands if they become

Muslims (man aslama tninhum fahuwa ahaqqu bi ardihi wa

malihi).53 On the issue of sulk-land of a neo-Muslim there is

controversy among, the Fugahc7' . This category of land was

held in a highly precarious tenure. Was this land held in

absolute ownership by the neo-Muslim farmers, or did it imply

possession only ? This ambiguity led many Muslims to different

interpretations. According to Malik and before him, for Ibn Sinn there was no harm in buying this land as the right of

possession (milk) belonged to the former owners. By corollary,

if people of these lands become Muslims the lands become

ùshri.54.

Abu Hanifa holds the contrary view : he thinks that if the people of a sulk-land become Muslim or if any Muslim buys

land from them the nature of the sulk-treaty cannot be altered

Theory of Fay' 197

thereby.55 This means that the land will continue to be a part of the fay'. Abu Yfisuf tells us that Abu Hanifa, like Sufyan

al-Thawri (and Malik), held that 'anwa-land was subject to the discretion of the Imam —he may divide it or immobilize it. If the lands are divided as private estates the former owners will become raqiq or serfs. But if the lands are immobilized the former owners will not be reduced, to the status of serfs (but will be client-tenants ?).56

This juristic opinion, it must be noted, combines many

diverse strands into the Islamic theory and in a sense reflects the agrarian situation of the early centuries. If the serf-tenants,

who were by custom tied to the soil, worked on the wag f lands, they were not considered slaves and serfs by the jurists. Al-

though these, tenants remained attached to the land even in the

early Caliphate, yet Muslims were exhorted to treat them kindly.

There is a genre of such traditions which we think reflect

the early situation.57 The serf-tenants of waqf-lands were clients of the Islamic State.58 Later under the Umyyads, wheacommunal

fay'-lands were turned into private lands, the condition of the

tenants gradually deteriorated as they became serfs and slaves , of individual landlords.

Abu Yfisurs theory of canwa-sulk lands reflects a relatively late situation.59 He says that the stipulated amount of kharaj of sulk-land is not changeable. 'Anwa-land, on the other hand, is subject to the discretion of the Imam and to considerations of welfare of the Muslims. He may divide the land among the

conquerors as ùshri-land if such a policy promotes the interests

of the people. If its immobilization is deemed beneficial, for them the land must be left undivided. This will then leave

ànwa-land in possession of the former owners (as Umar actually did in Sawad) making it a Kharaj-land. In this case, says Abu Yfisuf, the Imam is' not authorized to take it away from the dhimmis, for this is their inalienable and inheritable poss-ession as far as the usufruct of this land is concerned.60 Further-more, continues Abu Yfisuf, as regards the people of the villages (ahl al qura) lands and towns, the discretion again lies


with the imam. He may leave to them their lands undivided and impose on them the taxes of jizya and kharaj. These lands, he explains, are not liable to khums, but constitute fay' accord-ing to the Qur'an (LIX : 6-10). But these fay' lands, if the Imam exercises his judgment, may also be divided or made mortmain-this decision of the Imam must however be in agreement with the common good of the Muslims and the interests of Islam.61

As we have said above, this definition of sulk and 'anwa-lands given by Abel Ynsuf relates to a later period. In the early period (under Ùmar I in particular) conquered lands, whether they were 'anwa or sully., were generally fay' of the Muslims.62 Now in Abu Yfisuf's formulation fay' or Kharaj-land appears as State fay'. The possession of this land—more precisely its usufruct—is inheritable among the dhimmis who work this land. This land cannot be taken away from them probably since otherwise it will then reduce the state revenues.

This shows that for Alma Yfisuf there are two kinds of legal rights to land : the right of lordship (dominium) and the right of possession (possessio). Right of lordship is of three types : first, Kharaj or 'anwa land, revenues from which are essentially a common property (fay') of the Muslims. Secondly, sulk-land on which the State has limited lordship in accordance with the stipulated taxes at the time of the sulk-treaty. Thirdly, ùshri:

lands of those dhimmis who became Muslims at the time of the .

conquest. In all these three categories, "milk", according to Abu Yfisuf, denotes possession and the land holder is variously

called sahib al-ard, rabb al-aril, or simply malik. The possessor

could sell only their right of utilization or usufruct. This also clearly shows that by the time of the 'Abbasids the category of

stdb land was merged into Kharaj or State land. But under the early Caliphate (of Ùmar I) it was distinct from the category

of 'anwa Kharaplands.63

All the conceptions of 'anwa and sal; lands given by Malik, Abu. Hanifa and Abe Yusuf, more or less, evince the fact of a pdwerful centralizing State which was more than others acutely conscious of its own claims and rights, which relegates the

Theory of Fay' 199

individual to the background. Malik's assertion that a neo-Muslim on a sulk land retains his land as his private property seeks to lessen the omnipotence of the State in matters of tenure. The general concept of khiyar or option of the Imam (public authority) seems to be an attempt to bring equilibrium and harmony to the two opposing and conflicting ideas of the old communality and the emerging individualism. This harmoniz-ing effort could not succeed for various reasons, one of which, it may be assumed, was gradually increasing power of the autocracy.

Shafri clearly perceives these problems and offers his own explanations. We have seen that he is not certain about the mode as to how Sawad was conquered. He makes plausible assumptions and draws his own inferences basing 'anwa and sulk theories on Fladiths of the Prophet and the Companions. "Every ̀ anwa-land is like money", he says, "to be divided among the conquerors as the Prophet did in Khaybar and in Banii Qurayza when the fighters actually received four-fifths of the booty. Nonetheless, if the fighters renounce their rights to the shares of their own free will ( fib nafs) it is quite reasonable as was done by the Muslims after the battle of Hawazin (in 8/ 629-630). In this case the Imam immobilizes land for the common benefit of all Muslims. The revenues and income (ghalla) derived from this source are distributed among all. But if a Muslim conqueror (as an individual) does not give up his claim to the land of his own accord he rightfully, retains his individual ownership of that land".64

As regards milt-land (of which the possession by stipulation now belongs to the former owners who pay kharaj), nobody can take this land from their possession, for it is their and mamluka (land in possession) in exchange of the fixed amount of tax. If by treaty the dhimmis agree to share the possession or owner-ship (raoaba) of the lands with the MuSlims the lands become joint property.65 The khardj of the suilkland also belongs to the ahl al-fay' in contrast to ahl al-sadaga, the difference being that in the 'anwa fay' the Muslims own or control the land


(raqabat al ard). This makes fay' lawful for every Muslim whether he is rich or poor since this ànwa fay' is analogous to sadaqa mawq0fa in which every person has a right.66

It is worth noticing that these observations of shawl are highly significant explanations of the general concept of fay'. He underlines the most important elements which he thinks are basic to the theory. He tries to modify the absolute and dis-cretionary power of the Imam by introducing the concept of individual free will which has its own right of individual judg-ment : the individual can refuse to give up his share of land to the common fay'. At the same time Shafi5 does not clearly state whether the imam can use political force to seize this land for the sake of the Community. However, Shang boldly brings out two

anti-thetical elements of individual right and freedom, and the larger interest of the Umma to the foreground. He defines them, tries to resolve the contrast and remove the rigid formalism of the earlier definitions of fay'. The problem of the Fuqahe, like Shatì is to modify the contradiction between the static concept of common fay' under the impact of the notion of individual right and claim. In ShafiTs disposition individualism emerges with all its multifariousness. 'At the same time he feels that this individualism, must not lose sight of the common ideals with which the Umma had started its career, nor must it damage the socio-ethical base of this Community of God.

The theory of muzara'a developed in this context as an administrative and juristic instrument by which individuals were made to conform to the general rules of contracts and by which they strive to achieve their interest and profits without

losing sight of social consequences. These conclusions of Shafi'l are squarely based on the Suniia of the Prophet.67

To resume Ùmar's policy of immobilization it must be noted that there were three types of conquered land in Sawad :

,Fu/b, dhimma or ̀ anwa, and sawaff. The first category; viz. of sups comprised cand or àqd lands which capitulated on fixed tributes—generally called jizya, kharaj or wax fa. The towns

Theory of Fay' 201

and the adjacent lands were mainly of sulk types, like those of Hira, Baniqya' and Ullays etc.68

The second category of dhimma land (also called fay' or ànwa-land) was the Kharitj or Jizya land. This comprised most of the agrictiltural land which was immobilized by Ùmar I. The sawafi-lands were the abandoned and owner-less lands—once crown and dynastic lands of the Imperial houses—all swamps, postal buildings, fire houses etc.69

According to the researches of Schmucker, dhimma-lands were all distributed by Ùmar I among the Muslims.79 He claims that the concept of fay' was originally purely -concerned with the third type, i.e., sawaft lands. "The concept of Fay'-justification was then extended to the whole community of the Muslims". The concept of fay' under Ùmar, he says, was very narrowly defined (engerer Kreis) usually meaing fay'-shares. The concepts of ghamma and fay' were more and more confoun-ded with each other. The concepts of fay', waq f and habis, he continues, concerned only all types of sawafa-lands ; then gradually the idea of fay' was extended to include dhimma lands and still further to non-Muslim lands and lastly even to the lands of the neo-Muslims.71 Thus Schmucker's main thesis is that all dhimma-land was distributed by Ùmar I. He sees the problem of Sawad lands and the related historical traditions in the context of sullz-ganwa theories which directly concern the basic question as to whether the conquered lands were divided or immobilized.72 He assumes that division or qasm.al-aradin of Sawad is th original and earlier phenomenon while only secondarily came the theoretical structure of stab and ànwa to justify the actual situation. About the case of the famous tribe of Bajila and its chief Jarir ibn 'Abd Allah (d. 51 or 54/673-4) he says that the reports are contradictory. He infers from this example that in accordance with the mentality of the beduin 'Arabs and the Verteilungspolitik,„or policy of dividing lands, cUmar I had divided it, except pure sulk and sawaff. types of land.73

Schmucker's assumption that the concept of fay' originally


only related to sawaft-lands appears to be based on such texts as Tabari's historical accounts of the conquest of Qadisiya in 14/635-6. We give below the full text of this account and shall explain it with reference to the context. It will also show that the actual situation was highly, complex which does not warrant overstated and oversimplified generalizations. Tabari records :

As the news of the conquest came, 'Umar I declared that he was too eager to leave any person's needs uncared for so that every one would be in easy circumstances. If it was not possible to fulfil every one's needs they would then share wealth in common in their (economic) life until all of them had equally sufficient food (ta'asayna fri Ishina ltenta nastawfiya fi al-kafaf.74 (Ùmar said) : "I am not a king who will enslave you, I am only a slave of God, who has been made incharge of the amana (trust)"...Ùmar was told by the conquerors "that only the people of Baniqya.', Basma, and Ullays had cand (agreement) with the Muslims... and the people of Sawad, excepting those who had an ànd, have fled and left their lands. These abandoned lands have become an object of desire (raghlba) .while the Muslims are few in number." 'Umar wrote to them that for the people of sulk in Sawa(' there was dhimma (protection) and mu'ahacla (agreement), they would pay jizya (1. e. kharaj), for there was rulchsa applicable on all things under certain circumstances except in social justice and remembrance of God..."if the people do not like to become dhirnmis, distribute the booty which God has given them (Muslims)." When the

letters of Ùmar came to Sa'd ibn-Malik, the people who had fled to the neighbouring areas were invited to enter into sulk (and dhimma) agreements for paying jizya. So they made an agreement and were given the status of dhimma (i.e., were given protection in exchange of payment of taxes); their kharaj was light. So was the case with fallaltan (peasants). There was no stint-treaty over the aomains of Khosroe's family, nor over those lands owners of which had also fled away with the rulers-none of them responded to either of the two : Islam or jizya (kharaj). Thus these (royal domains) became fay'

Theory of Fay 203

(1. e., booty taken without fighting)—they were the first

sawaff-lands becoming the milk, or possession of those whom

God returned this fay' Inman afire Allahu 'alayhi). The

rest of Sawad became a dhimma-land which the Muslims

accepted on the same terms and taxes which were paid to

the Persian King. The kharaj of the Khosroes used to be

on the heads...The lands which became fay' of the Muslims

comprised royal estates, dynastic lands, estates of

fire houses (church properties), forests, swamps (pools of water), postal stations or whatever belonged to the royal houses and their followers.

Those lands of the house of the Khosroes and of their follower§ which were scattered throughout Sawad were other

than the fay' mentioned above. These scattered lands were claimed by the people of fay' (Muslims) if these were con-tiguous to their fay'-lands. This contiguous land became an object of dispute and its distribution among them was

scorned by the wulat (wall, governor). To many ignorant people, for this reason, the problem of Sawad appears confusing. If the far-sighted persons had agreed to the suggestion of the foolish people for dividing these lands, the lands would have been divided. But the far-sighted people refused to ask for distribution. The governors accepted this proposal and the demand of the stupid people was rejec-ted—'Ali also rejected this demand. It is affirmed that lands were not distributed so that the people would not beat each other's faces...lAmir al-Shebi said that Sawad was 'anwa land except the strongholds which were taken after sulli...The lands belonging to the royal family and those of its followers were fay'. This fay' was divided. Sala ibn Jubayr said that 'anwa-land in Sawad was dhimma

or Kharaj land, but the domains of the Khosroes and their dependants were fay'. The latter category was coveted by the people of Kfifa. Ibrahim al-Nakhal held that Sawad was taken 'anwatan—it thus became a, Kharaj or dhimma land. One who refused to become a dhimma his land became

a fay' which could not be bought—the land between al-Jabal


and Ùdhayb (near Qadisiya). Sha`bi also gave the same opinion. Zubayr, Khabbab, Ibn Mas`fid, Ibn Yasir and Ibn Habbar were granted estates in the times of Ùthman. $ha`b1 further remarks that if Ùthman committed a mistake in granting private estates, so did those who accepted them—and these ate the people who taught us religion of Islam.7s

This long quotation from Tabari shows that the real situa-tion was highly complex. We shall draw some tentative

• inferences in the light of our previous discussion. First, Sawad was mainly an canwa land and originally it was to be divided by Ùmar I It was finally made waqf for all the Muslims. Second, Ùmar's plan was to make the Muslims share these lands equally, as first part of the above-cited passage shows. Third, the abandoned lands over which there was no agree-ment were coveted by the Muslim conquerors. They were however hot divided. Fourth, the sawafi or the royal domains, dynastic estates and church properties became common fay' of the conquerors. This-sawiff land was also disputed by the conquerors but the governors refused to distribute them. Fifth, the sulk-land of Sawad was in precarious possession of the former owners. This was interpreted (by the Kiifans)as being exceptional to the general land of 'anwa and thug considered alienable according to the report which suggests that several Companions were given estates in Sawad. Another explanation is that these estates were given from the category of abandoned sawafi lands. We shall again discuss this We problem in the sixth chapter,

This quotation from Tabari also reveals that at the first stage, i.e., immediately after the conquests, many lands were distributed; but Ùmar later rescinded this policy and immobiliz-ed them. The sawafi lands were also made common fay'.

The assumption of Schmucker that all dhimma or Kharaj lands were divided does not seem to be. supported by evidence. It must be acknowledged that there were exceptions to the general law ; the category of sawafi seems to • be a typical case in this connection ; these were abandoned and ownerless lands : bringing them to cultivation could have increased production and revenues

Theory of Fay' 205

for the State. If any safiya-land bad become "dead," i.e., long

abandoned and gone out of cultivation,, any notable Muslim could become its owner after investing his money in it and after developing it, that is, bringing it to life. Tabari reports that after the conquest of Ahwaz in 17/638-9, Jaz' 6r Jabr ibn Muàwiya captured a village the tillers of which were unable to immune this land (by a sullkagreement 7). He made it a safiya,and Òmar I allowed him to develop and irrigate it as his own land. He then dug up canals and made the "dead" land cultivable.76 We shall see that the grants which Ùthman is reported hi' have given in Sawad were most probably from the "dead" land of the sawafi-category.

The sawafi lands were scattered all over Sawad. The

muqatila agieed not to divide them ; they were administered by the governors for the common benefit of. all. The sale of such land was forbidden except to those who had a right in them.77

Al-buri also observes that though Ùmar made Kharaj-lands

waqf for the Community, the tribes "clung to the sawafi, thus

the first outburst against Sacid ibn al-`4, governor of Kiifa (30/651-34/655), was because of a remark understood by the Ashraf

(notables) to mean some possible intention of the governor on

the sawafi. It was the first sign of serious tension between the

government and the tribes on the sawaf i.",78

Schmucker also finds report of Ùmar's consultation with other Muslims on the problem of conquered lands, ureliable.79

We shall now examine all such reports and come to our own conclusion. Sha'bi relates that 'Limas had asked Jarir of the tribe of Bajila to go to fight in 'Iraq and offered him as booty one third or one fourth of the conquered land and chattels minus

one fifth of the tota1.80 Qays ibn Abi 1-lazim says that the tribe of Bajila formed one fourth of the Muslim army in the battle of Qadisiya ; after the battle was won, Ùmar gave them one fourth of Sawad. They exploited it for three years when Ì_Tmar withdrew the land saying that but for his responsibility to the Muslim Community the tribe of Bajila would have continued

enjoying the land exclusively, but now, Ùmar explained, the


land would be returned to the people at large. The people of Bajila agreed to Ùmar's decision, and were given compen-

sation.8'

Tabari records that in 13/634-5 'Umar gave to the people of Bajila one fourth of the fay' of 'Iraq as natal (supererogatory

reward over regular share) 82 In another tradition, Qays ibn

Abi Hazim says that Jarir was told by 'Umar that as the population of the Muslims had increased, he was taking the land back and making it a common fay' for al1.83 Another tradition

says that when the booty was collected at Jah'ila, Jarir demanded

his share from Sa'd ibn Abi Waqqas who wrote to tmar about his share. Ùmar wrote him that if Jarir and his tribe had fought

for d material reward (jug, wages) he should be given like the

reward of al-mu'allafatu qulubihim, i.e., for winning over their

hearts—a kind of diplomatic grant. But if they had fought for 4 God and desired to sacrifice their share (of one fourth) in

anticipation of God's reward in the Hereafter they truly belonged to the category of Muslims. They would get what every Muslim would get, and they would lose what every Muslim would lose. Upon this, Jarir accepted Ùmar's decision and withdrew his claim to one fourth of the land.84

It may then be assumed that before iUmar had finally formulated his definitive land policy, land was actually distri-buted in some instances. After the battle of Jalfila in the year 16/637-8, people had appropriated fay' lands beyond the Tigris

and Euphrates.85 But from the sources it appears that lands were afterwards taken over and made waqf. Abii tbayd

states that some scholars say that cUmar I had immobilized lands on the basis of free will (tib nafs) of the claimants to those lands

just as Jarir withdrew his claim voluntarily.86 This contradicts Abu tbayd's general theory of political discretion of the ruler according to which the conquered lands are either divided or immobilized as the general good of the Muslims demands. The fact is that the decision of making waqf was made by 'Omar and

then Muslims like Jarir were persuaded by him to renounce their

claims for the sake of the Umma as a whole. tmar's offer

of one fourth of Sawid, says Abu Ùbayd, was by way of natal."

Theory of Fay' 207

All the jurists and historians at the same time agree that the share of Bajila was cancelled and all Khardj-land was immobi-lized.88 Not only these but equally abandoned lands, royal estates, forests, springs, fire houses, postal stations, lands which had no owners (called sawafi) were all made inalienable waq f.89

Schmucker holds that the struggle over division or non-division of land was concentrated on the sawaft-type as they were left ownerless and were almost abandoned. They were made waq f or fay'. Further, this concept of fay' was later extended by the Umayyads to dhimma lands and lands of other categories. He also denies that the Qurianic verses LIX : 6-10 were the basis on which 'Omar had erected any conception of common fay1 .90 We shall see that this Point of view is not founded on adequate

evidence which appears to support the opposite thesis.

Our sources reveal that the lands of Egypt and Syria were also immobilized as common fay' and taxes of kharaj and jizya were imposed on them.91 Ibn ‘Abd al-Hakam has recorded all kinds of repbrts which show• that Egypt was mostly taken by force of arms : "When Egypt had been conquered without ànd or agreement in 20/640-641 Zubayr ibn al-'Awwam demanded division of lands as the Prophet was supposed to have divided Khaybar. 'Ann ibn al-Às sought the advice of Ùmar I who wrote back to him that the land must be left to its tillers (i.e., the serf-tenants must not be evicted from the lands they were tilling, obviously for fiscal reasons) so long as the offsprings of the pregnant she-camel were born and nourished (hatta yaghzuwa minha habal al-habala).92 This refers to the future generations who wound; coming afterwards, also benefit from this source of wealth.93

Eialadhuri gives another report by 'Amr's son Àbd who says that the conquest of Egypt has confused many people about its being sail, or 'anwa-land ; the truth is that his father had taken al-Yana 'anwatan. The Egyptians afterwards offered peace. So kharaj and jizya were imposed on them and Egypt thus became a Khardj-land : an agreement was made with the


people that their women and childern would not be made prisoners and that the farmers would continue to till the land. This agreement, according to Àbd Allah, made many people think that Egypt was taken sulkan.94

It is significant that particular care was taken to keep tillers on the lands they had been cultivating under the former regimes. Ibn ‘Abd al-ljakam also records that three Egyptian settlements of Bilhib, al-Khays and Sultays had revolted on incitement from the Byzantines ; they were defeated and made fay' (booty) together with Alexandria which was taken after fighting. Their people were made prisoners and were sent to Medina. Ùmar returned them to their villages and levied kharaj on them.95 From this it may be inferred that the old policy of attaching tenants to the soil continued during the early Caliphate."

Some other reports suggest that Egpyt was taken .sullyen which made the former owners retain the lands in their possession; also postulating that their lands would not be seized and their villages would not be taken over. According to this version such lands remained possession,of these people.97 We shall presently see that this view point is rather late. Tabari has recorded the full text of this document of teaty, which among other things says that Egypt had become a dhimma-land.95 Zuhri was of the opinion that Egypt was partly ànd [or sulk] and dhimma, and partly canwa. He says that Ùmar I made all Egypt dhimma and taxed it accordingly which continued to be the case till his own (Zuhri's) time (d. 124/741-2)." The sulk-interpretation of Egypt was in a sense developed particularly under the Umayyads as Zuhri's statement shows. We shall discuss this point later. Abfi. Ùbayd says that both types of these reports seem to be correct because Egypt was taken twice--it was first taken sulhan and after the revolt inspired by the Byzantines, occurred it was con-quered ̀ anwatan, a second time.100

Be that as it may, our sources show that Egypt, like Sawad was made an inalienable common fay' of Muslims. Ùmar I asked all his commanders of the armies," says Ibn Àbd.

Theory of Fay' 209

al-Hakam, "that they should make it a matter of policy to leave the farmers (i.e. serf-tenants) on the lands so that food stipends (àta') of the soldiers could be regularly paid and maintenance allowances of their families could ceaselessly flow. No soldier was therefore allowed to till land himself and none was per-mitted to engage any person for (private) muzara'a (la yazraciin wa la yuzetriùn). One Shank ibn Sumaiya al-Ghutayfi approached 'Amr and sought his permission to cultivate some land, but Àmr refused. Despite Ùmar's prohibition, Shank farmed a piece of land. On hearing this climax called him back to Medina for punishment. However, when he repented for his disobedience he was excused and again sent to Egypt.191

It is natural to suppose that this policy of Ùmar must be of general application as all the conquered lands were more or less immobilized. In regard to Persia, it is reported that tmar had written to Mughira ibn Shucba—his governor in Basra—that the Jizya (or Kharaj) land must not be given to Muslims for cultivation or for grazing animals.192 This evidence also confirms our hypothesis that at this early period, as a. matter of state policy, Muslims were not allowed to become absentee landlords entirely depending on muzara'a-tenancy.193 The institution of private muzeiraà, in its essential features (in the juristic sense) developed under the Umayyad administration as an elaborate fiscal principle in the first decades of the - second century. It was subsequently systematically Islamized by the Islamic jurisprudence as a necessary and reasonable socio-economic law:

All lands-of Syria were also conquered canwatan, and were not divided among the Muslims.194 However, towns like Damas-cus, Busra and Tabaria were taken by stdh.195 Likewise Ruin and other towns of al-Jazira were taken by sill?), but agricultural lands were conquered by fighting.iosiba tbayd gives a list of such sulk and Mnwa lands. According to him, most of the towns and cities were sulk and most of the agricultural lands were ànwa. Sawald, Syria, all Persia, Maghrib and the frontier garrisons were all canwa. 5u/1?-lands were as follows: Najran, Aila, Adhruh, Diimat al:Jandal and Fadak. Ànwa-lands which

210 Landlord and Peasant n Early Islam

were made fay' were : Sawad, al-Jibal, al-Ahwaz, Fars, Kirman, Asbahan, Rayy, all Syrian lands (except towns), Egypt and Maghrib.107 These two categories of sugt and ànwa-lands were characterized as fay camma, i.e. lands shared by people in common' as far as their stipends and maintenance allowances

of families and the common interests of the Community were . concerned.108

Schmucker's Thesis of Sulk and 'Anwa Lands

Schmucker's work Untersuchungen is entirely devoted to the discussion of the problem of sulk and ànwa" lands. His princi-pal theory is that the sulk-ànwa classification of Furislj (Conquests) is fundamentally a legal and administrative principle

introduced by. the Umayyad Caliphs and their governors. It

was consciously formulated 'and organized according to the pressing needs of the Umayyad State.109 He further maintains that the financial and politico-economic considerations of the

Umayyad State dictated in clear terms the economic and legal relationships of land possession (Grundbesitzverhiiltnisse), legal title (Rechttitel), and right of land ownership (Eigentumsrecht). By these administrative measures the State, before all, became

aware of its own rights. • Eventually the interrelations between sulk and ànwa tended to be separated. And thus the laws of buying and selling land, of conversion to Islam and possessing land, and of higher taxes and status of (dl.timmis)—were all clearly defined.11°

For Schmucker, the starting point of ̀ anwa and sun; theories is the attempt of Ziyad ibn Abihi (44-53/665-673) in 17/638-9 to classify and, separate s'ulle from ànwa lands.411 Schmucker claims that before this the principle of classifying Futfsli into sun, and ̀ anwa in the early Islamic history was known by other

names but the systematic elaboration of this principle belongs to a later period.

His other important theory is that after the interfusion (Durchdringung) of laws and the historical literature with this classifying principle of still; and ànwa, there inevitably followed the struggle and conflict of Tradition (historical, administrative

Theory of Fay' 211

and legal) as a reaction against the formulation of this thesis

which sought to arrange all the Fun-di-groups into a system.

Naturally, the historical development and the moulding of legal

conceptions of the sulk-ànwa theory became ultimately confused, -

which resulted in the growth of an anonymous mass of tradi-tions. The result of this fusion is schism, conflict, and contra-

diction; and seemingly a persistent picture of a forced harmo-

nization (of the conflict).112

Schmucker's hypothesis that as a starting point of the sulk-

ànwa dichotomy, Ziyad was the first person who tried to classify

Futisl, in Ahwaz into sulk and ànwa categories, seems improba-

ble. His interpretation of the historical text in Ibn Khayyat is

a clear hypothetical imposition on the text which is not justifi-

able on several grounds : first, no other historical source earlier

than,or contemporary with Ibn Khayydt (d. circ. 240/854-5) has

recorded this ambiguous tradition about Ahwaz. On the basis of a single tradition of a later source the contrary evidence of

earlier sources cannot be rejected. Moreover, from a single report concerning Ahwaz it cannot be generalized that this was

also true of other regions. As early historians like Baladhuri, Yabya ibn Adatn and Tabari corroborate, the categorization of

sulk and ̀ anwa lands is a primitive and early product of the

conquests.113

Secondly, as we have discussed in detail, fay' of Muslims

was a clearly formulated principle under ‘Umar I. The idea

had nebulously originated during the time of the Prophet, it

further developed under Abu Bakr. The theory of common fay'

was not so much elaborated and systematized before Ùmar I, as

the land problem had not become as complex as it became after

the Great Conquests. Our sources agree that the ànwa-Khardf

land was immobilized by ‘Umar I. Even the late Env/0' like

Ibn Qayyim al-Jawziya (d. 75111350-1), who do not interpret

the ànwa land as wagf in a strict juridical sense of an inalien-

able mortmain but give a literal meaning of waqf (wagafaha-

tarakaha that is, he left them according to their old

status guo) categorically saying that such land was not divided

among the conquerors but was left intact.114

1


The category of ,u/1.1. land also formed a part of the general fay', albeit governed by the stipulations of su/h-agreements by which fixed amounts of taxes were ensured for the Muslims.

This category of sulk-land, complex as it was, became controver-sial even in the early period—we have already seen disagreements of maiik and Abu Hanifa over the status of these lands when dhimmis working them become Muslims. It seems that inspite of the agreements with the former owners,

these lands gradually tended to be held in precarious tenures

the possessor could enjoy rights of usufruct of these lands only. This was then subjected to the principle of rukhsa, i.e., exception to the general rule of ban on buying Kharaj-lands, which virtu-ally transformed the land into private and dynastic estates.

The report recorded by Ibn Khayyaf, therefore, means that Ziyad, during his governorship (ft su//anihi)112 in 45/665-6 (and not in 17/638-9 as Ibn Khayyat's tradition says, which is

probably a misprint) tried to save, secure or free (khallasa,

yukhallisu)116 sulk-land from the category of 'anwa-land but he

could not succeed. This interpretation 'seems to be more proba-

ble,than that of Schmucker as it adequately accounts for the real situation prevailing at that time.

Ibn Khayyat records some more traditions which Schmucker has ignored. Ahw52117 had made peace agreement for

2,000,000 and 800,000 and 90,000 dirhems.112 In 16/637-8,

Abu Musa al-Ashcari was asked by Ùmar Ito conquer Ahwaz. He conquered it 'anwatan or sulhan; a wazifa, or fixed total tax of 10,000,000 and 400;000 dirhems was imposed. Àbd

al-Rahman ibn Abi Bakra said that Ahwaz was taken sulhan or ‘anwatan. Ibn Sirin held the view that it was taken after fighting.119 Another report in Ibn Khayydt says that Ahwaz

was initially divided among the Muslims but ultimately (it was taken back), and `limar I made it Jizya (or Kharaj-land) (radda

‘Umar al-Ahwaza ba`da ma qusima bayna al-Muslimin).120

These reports show that Ùmar I made the land a Kharaj land. Whether it was taken sulhan or 'anwatan there are con-

flicting reports. As it was conquered many times, it may reasonably be, supposed, it was partly stilk and partly 'anwa.

Theory of Fay' 213

Shaybaui gives a tradition of al-Muhallab ibn AM Sufra who said that they had besieged the town of Ahwaz in the time of

Ùmar I and had conquered it; the people of Ahwaz were then given sulk on behalf of Ùmar.121 Muhammad ibn Muhammad ibn Àbd Allah-Ibn Shihab al-Zuhrl said that Ùmar I conquered Sawad and Ahwaz 'anwatan. He was then asked to divide them, but he refused on the ground that if the lands were divided nothing would remain for those Muslims who would come after them. So he left (the people) in the status of ahl-al-dhimma (i.e., the lands were immobilized and made Kharaj-lands).122

Tabari records that Hurmuzan, who belonged to one of the seven big land-owning families (al-buyutat al-safra) sought sail, for Ahwaz in 17/638-9. Later, disputes developed between the

Basrites and their dhimma-people over the actual limits of these lands (probably over sun, and 'anwa areas). This problem was investigated, Hurmuzan was found guilty (of encroaching on land),, and the Muslim claim was upheld. But Hurmuzan refused to abide by the decision, he broke the sulk and rose in revolt. He was defeated by the Muslims. Hurgas ibn Zubayr afterwards conquered Sari al-Ahwaz (ànwatan). He imposed jizya (kharcij) and sent one fifth of the booty to iLimar I 123

Tabari further states that in the year 17 the lands of Basra

consisted of its Sawad and Ahwaz; these lands were of two types and "this two-fold categorizatian has continued until today. The lands which were conquered (ghalaba 'alayhi) were in the

hands of Muslims. The sulk-lands were in the hands of their former owners who were paying kharcij. No one was allowed to buy these Kharaj-lands (la yudkhala 'alayhim), for their posse-ssors were people of dhimma (protection) and man` (sulk). This sulk was negotiated by Hurmuzan. Ùmar I had remarked that

it was sufficient for the people of Basra (to enjoy the revenues) of their Sawad and Ahwaz. He wished that on the land (of Sawad)

between the 'Arab Peninsula and the province ,of Sawad there

be a fire so that neither the people of Sawad nor the Muslims could meet each other" (to transact lands of Sawad).124


This proves that finally Ahwaz had become partly 'anwa

and partly sail?, Kharaj-land.I28 It is reported that in the time

of 'All, the people of Ahwaz had already become ahl al-dhimma

and were paying kharaj.126 It is noteworthy that Yagfit also

records that Ahwaz was a very fertile and rich land.127

From -all this historical evidence it may be inferred that owing to the proverbial richness of Ahwaz, Ziyad tried to free more sulk-land from the category of ànwa-land, probably with a view to appropriating it as dynastic domain of the Umayyads (as the Umayyads had claimed all Sawad as their own property. This will be substantiated in the sixth chapter). The sun;

category of land, as modified and interpreted later, could

be alienated.I28 This was not the case with the 'anwa-land

which was fundamentally an inalienable fay' of all Muslims.

This attempt of Ziyad obviously failed for which serveral

plausible explanations can be given.

Schmucker himself says that as a result of the earlier con-quests there was much confusion and chaos about the status of this land of Ahwaz ; a strict classification on the Principle of

sulk-'anwa became impractical. Another reason, he says, was perhaps the personal motive of the classes which were in posses-

sion (Besitzende Klasse) of the land and which did not want

any change in the status which could have deprived them of

their individual privileges.'29 By Schmucker's own logic, if

the 'anwa-lands had been distributed, Ziyad could not then turn them into suliklands. An objection can be raised against our assumption too. It may be asked that from the State's own -fiscal point of view how could 7lyad try to turn them into sulk-lands which brought fixed amount of taxation. By the same

criterion it may also be objected that 'division of 'anwa-land

among the conquerors would have turned it into private 'ushra

or tithe land—a tax of one tenth of the crop is, fiscally speaking,

worse than a fixed and guaranteed tax.

It seems that as long as ahl al-dhimma continued cultivating

the Kharaj-lands their rights and privileges were secure : they could possess the usufruct and utilize the soil in exchange of the

Theory of Fay' 215

land taxes which they paid to the Islamic State which was the ultimate owner of all land. As the Kharaj-land was also fay' of the Muslims it could not be turned into sulh-land by Ziyad. Another aspect, adds Schmucker, is that the Umayyad dynasty

under Muàwiya was buying, confiscating, and appropriating extensive fay' lands.1-38 A tradition given by Baladhuri also alludes to thelact that the land of Ahwaz again became contro-versial : " Àwsaja ibn Ziyad al-Katib says that the 'Abbasid Caliph Harlin al Rashid gave a piece of cultivated land in Ahwaz as an iqtd` to Ùbayd Allah ibn al-Mandi. This grant then became an object of doubt and controversy. A group (of peasants) later complained to al-Ma'man. He ordered an enquiry into the grant and kept it in abeyance. However, on the land for which there was no doubt the order was implemented, while the land which was doubtful was defined (and separated ?):I3 I

Schmucker's other hypothesis that the traditional litera-

true—historical, legal and administrative—which deals with the problems of sulk 'anwa, and fay' represent a mere reaction against the official formulation of this classification of ànwa and sullfr, and the elaboration of the conceptions of possession and ownership of land, is also too broad and overstated general-ization. His assertion that the theories of 'common' fay' and waq f reportedly dating from the very early period, were made up under the Umayyads to support their fiscal policies, must be rejected as being purely 'a priori'. All the motives and. reasons which were advanced to support Ùmar's policy of immobiliza-tion appear to Schmucker and Albrecht Noth as inspired by Umayyad Staatpolitik simply because they suppose that Ùmar in reality never immobilized lands except those of sawafi. All lands according to them were distributed. It must be noted that the same logic of higher revenues is not applied by these writers to the policy of Ùmar I, whereas' augmenting of revenues was clearly one rationale behind 'Umar's decision of immobilizing the Kharaj-lands. Their division among Muslims' as private ̀ ushri or tithe lands would have resulted in redu-ced revenues and hence meagre and inadequate stipends for


Muislims. "For this reason", says Ibn Qayyim, "the Compan-ions had reprehended buying of Kharcif-lands (al-dukhdl fl aril al-

Kharaj), because this policy (of private estates) results in decrease

of revenues" .132

We therefore conclude that the interpretation given by Schmucker and Noth of Ibn Khayydrs text is far-fetched, and

the, hypothesis of Ziyad's classification of suilt and ànwa as

starting point of this principle is improbable and is not suppor-ted by any adequate evidence. It is very dangerous to erect an entire theoretical structure of a thesis on an ambiguous historical text which is always open to several possible inter-pretations. The classifications of tne Futffl) into sail( and 'anwa

categories' antedated Ziyad's so-called classification. Also a

clear enough conception of fay' land of Muslims was originally

formulated by tmar I, nevertheless, it must be said that the

concepts of sun). and 'anwa, in a strict juridical sense, were

refined and elaborated by the jurists who had to, interpret and systematize the huge historical data of conquests. But this does not mean that the interpretation of the Fuqaht was a

deliberate and wholesale invention-cum-justification of the

Umayyad Agrar-and Staatpolitik.

Inalienability of Fay'lKhareij-lands

We have seen that the conquered lands of kharaj or dhimma

were made inalienable fay' of all the Muslims. It seems therefore

that it was not legally possible to buy such lands from the

ahl al-dhimrna who had the right of possession of these

lands.133 Yabya ibn Adam and Abd eljbayd give several tradi-tions in this connection. 'Umar I, 'Ali, Ibn Wmar, Ibn 'Abbas, ShaThi, Ibrahim al-Nakhaff, Mujahid and Ibn Sirin are the

authorities for this viewpoint.134 If any dhimmi (on Khardj-land)

became Muslim, jizya was removed from his neck but he con-

tinued to pay kharaj, for, his land, said Àli, legally belonged

to the Muslims. 'Limas I had to cancel a grant of /Or to

Saìd ibn Zayd when the dhimml, who was in . possession, of the

land, reminded ‘Umar of the sulk-treaty for that land. 'Umar

II decreed that if any dhimmi became Muslim the real estate

Theory of Fay'

217

still belonged to the common fay'.115 Mujahid also considered that land of Sawad could not be bought and sold because it was a fay' dmma of the people.136 Abu Ytisuf formulates the principle that Kharaj-land is sadaqat al-ard, that is, charity or compulsory tax of land : it is fay' which belongs to Muslims. It is therefore illegal to change the status of Kharaj-land to ùshr-land, and vice versa.137

'Umar I had not only prohibited purchase of Kharaj-lands but he had also banned buying of tenant-serfs who were presum-ably adscripticii glabae or serfs tied to ,the land and were thus declared as the people of kharaj. Their purchase was considered a mark of humiliation (saghar) as payment of jizya and hence/ kharaj was originally a mark of humiliation.138 liasan Basra was asked the reason why it was illegal to buy the lands and serfs of the dhimmis. He replied because they were fay' of the Muslims. Sharbi relates that 'Utba ibn Farqad had bought a piece of land on the banks of Euphrates to grow edible herbs.

Ùmar asked him about the person who sold that land to him. He replied that he had bought it from its owners. 'Umar then told him that its owners were the Muslims (he pointed to the Muhrzjinin and the Anvil- sitting with him). cUtba was then asked to return the land to its possessors. 'Ali used to caution the people against buying lands in the Sawad.139 Ibn Àbbas was asked about qabala (lease of land or tax farming) of Sawad lands ; he reprehended it and quoted the verses of Jizya of the Qur'an, and observed that such transactions of qabala in kharaj-lands were tantamount to taking jizya off the necks of the dhimmis and tying to those of the Muslims.140

As we said earlier, it is also reported that Àbd Allah ibn Masffid (who has generally been made a strong representative of the theory of muzeirma) had bought (ishtard) a piece of land from a dihqan on the condition that !Mt Masffid would pay the land-tax (jizya, kharaj). This is a highly significant report which shows the method by which dhimma-lands were generally gradually brought into private ownership. The word ishtara is here used in a euphemistical manner to avoid direct use of the word third' lease of land (or tax-farming) as Abu Ùbayd


interprets it, saying that he thinks that by shira (purchase) is

meant lease of land because actually Ibn Mas‘iid will pay the tax and gradually, in lieu of it the land will be taken out of the dhimmrs control. Later on, this theory of Dhull and Saghar

was subjected to rukhsa. But originally as Khardpland was

inalienable it was illegal to buy it. From the traditions, which allude to this fact, Abu Ùbayd concludes that this karliha

(reprehension) of buying Kharaj-lands had two basic motives

first, that it was fay' of the Muslims. Secondly, the tax of kharaj

was a sagheir, a state of subjection or humiliation.. This theory; says Abu Ùbayd, was shared by Ùmar I, 'Ali, Àbd Allah ibn Masifid, Ibn 'Abbas, Àbd Allah ibn Àmr, Qabisa ibn Dhu'yb (d. 86/705), the Syrian jurist, Maymfin ibn Mahran and Muslim ibn Mishkam, as the traditions recorded by him show.ta'

Awzaq was also of the same opinion.142

NOTES

1. ibn al-Sa'ib says : When Abf: Bakr became Caliph, one early morning he took his way to the market ; on his neck was a load of garments in which he used to trade (before he became Caliph). 'Umar ibn al-Khattab and Ab5 Ùbayda al-Jarrati met him and said : 0' Khalifa of the Prophet of and, where are you going ? He replied that he was going .to the market. Thereupon they said that he should not go there while he was a Caliph of the Muslims.' Abu Bakr then asked them how he could maintain his family when he could not do his busineis. They asked him to come with them so that they could fix for him some salary. So they fixed for him half of a sheep every day together with a garment with which he could cover his head and belly. 'Umar then said that he would take charge of al-gads' (justice), Abu Ùbayda offered to take charge of the office of al-fay'. AbiiBakr's salary was later fixed at 2,000 or 2,500 dirhems and was later increased to 2,500 or 3,000 (Ibn Sa'd, Tabaqat,,III, 184-85; Abel 'Ubayd, elmwat, pp. 266-67).

2. Ya`cifibi, Tatrikh, II, 154 and 156.

3. Ibn Sa'd, Tabaqat, III, 193 and 213 ; Abu Yuauf, Kharal, p. 24.

4. Abel 'Ubayd, Amnia!, 262-63.

5 Ibid., p. 267, and Ibn Sa'd, Tabaqat, III, 192 ff.

6. Ibn klajar, Inaba, II, 334.

7 Ibn Sa`d, Tabaqcit, III, 192 ff.

8. Ibn Sa`d, Tabaqat, III, 187, 195-196 ; Abu Ùbayd, p. 267.

9. Atha Ùbayd, Amwal, p. 263 ; Abu lffisuf, Kharaj, p. 24, shandi, Umm, IV, 78-79.

10. AV: 'Ubayd, Amwal, p. 264 ; Shafi'i, Umm, IV, 78.

11. AK; 'Ubayd, Amwal, p. 264.

12. Ibid., Abu Ùbayd also reports that 'Umar I later adopted Abu Bakr's, policy of taswiya (,4mwal, p. 264). Also see Ya`qiibi, Ta• rikh, II, 176.

•


219


14. Concluding his discussion in the second chapter on "Agreements and Theories of Land-Possession and Taxes under Muhammad", Schmucker observes : Damen kodnen wir die Herausbildung der Fait-und anderer Theorien, besonders auch der SulhÀnwa-Theorie, in tine spatere Zeit verlegen. Sie haben keinen Platz in dieser Periode der Entwicklung und "Primitivitat" der Institute, wo alles im Fluss ist, aber noch keine fasten, doktrinaren Formen angenommen hat (Untersuchungen, p. 71).

15. Abu Ùbayd, Amwal, pp. 60-61.

16. Ahmed ibn klanbal, Musnad, I, 160, 167, 177-179.

17. Ibid., I, 160, Also see L. Veccia Vaglieri, "Fadak", Encyclopaedia of Islam, 2nd ed. pp. 725-27.

18. Schmucker, Untersuchungen, pp. 38, 145 ff.

19. For details of the Ridda (apostasy) wars see Baladhuri, atali, pp. 94 ff ; Tabari, Ta'rikh, IV, 1851-2012. Ibn klanbal, 1, 181.

20. Der Kampf gegen die Ridda war kein Kampf' gegen Apostaten, nicht am Islam, sondern an dem neck Medina zu zahlendeia Tribut nahm man Anstoss ; or war der Kampf urn die politische Herrschaft fiber Arabion..4Islamstudied, I, 74).

21. 'Omar I was the first (ruler), says Ibn Sa'd, under whom Futd4 (Conquests) of lands and kuwar (kura, an agricultural district), which comprised Kharaj and fay'-lands, took place-all of 'Iraq, Sawad and Jibal, Adherba'ijan, kuwar Basra and its lands. Kuwar al-Ahwaz and Fars, kuwar al-Sha'm, kuwar al-Jazira (upper Mesopotamia), Mawsil, Egypt and Alexandria. From the taxes of jizya and kharaj of these lands, which constituted fay', stipends (ttiycit) were fixed for the Muslims. This property of the Muslims called by 'Unser as Mal Allah, was considered by him as a sacred trust like that of the property of an orphan-thus under him fay' had two connotat-ions : immobilized lands, and allowances accruing from them, which were given to the Muslims (Tabagat, III, 276, 282, and 293-300).

22. Abu Yusuf, )(hard", pp, 24 ff ; Baladhuri, Futi511. pp. 265 ff. un!ni, IV, 192 ; Yahya ibn Adam, Kharaj, pp. 28 ff ; Abu

Ùbayd, .4mwcff, pp. 57-8, 59-61, 68, 212 ff ; Tabari, Ta'rikh, V, 2467 ff; Yawl; Mu`jam, 111, 179 ; Planhol, Les Fondements, p. 54.

Theory of Fay' 221

23. Yahya ibn Adam, Khharaj, p. 28

24. By Sawad were meant the rustaqs (agricultural districts) and the 41)ic

(landed estates) of 'Iraq ; they were called Sawad because of the darkness of its crops, date palms and trees which as such appeared to 'Arabs coming out of the barren and desolate 'Arab peninsula. Sawad's extent in area was length wise from Mawsil to 'Abbadan and in breadth from Qadisiya to klulwan, i e., the lower part of

the present 'Iraq (*Mild, Muljam, III, 184).

25, Abu Yusuf, Kharaj, p. 16.

26. Ibid , p. 27. Also see Abu 'Ubayd, Amwal, p. 61 ; Yahya, Kharaj,

p. 28.

27. Baladhuri, Futdh, pp. 265-66 ; Yahya, Kharaj, pp. 13-14 ; Abu Yusuf,

Kharaj, pp. 24 ; Abu 'Ubayd, Amwal, pp. 59. Also see D. C. Dennett,

Conversion, pp. 20-21.

28. Abu Yusuf, Kharaj, p. 25 ; Yahya, Kharaj, pp. 28-29.


30. Abu Yusuf, Kharaj, p. 27.

31. This statement and the traditions, as we observed before, must be qualified because, it seems, the intention of tau is to suggest that a part of Khaybar was divided and not all of it. This is also the

opinion of Taltawi and Ibn Hajar (Fall!, VII, 33).

32. Abu tbayd, Amwal, p. 63.

33. C.H. Becker, Islamstudien, 1, 172, 209.

34. Lambton, Landlord and Peasant, pp. 174-75,

35. Hardy, Estates, p. 146. Also see C. H. Becker, Islamstudien, I, 166,

236 ff.

36. Baladhuri, Fatal?, p. 266 ; Yahya, Kharaj, p. 27 ; Abu 'Ubayd, Animl!,

p. 59 ; Tabari, Ter rikh, V, 2467 ff ; Yaqui, Mu'jam, III, 179.

37. Abu Yusuf, Khareij, pp. 25-7. Shaybani, al-Siyar al-Kabir, III, 1039,

38. Abu Yusuf, Kharaj, pp. 25-7.


39. 'Ali declared, "0 people, guard your souls. Verily, if the lands are distributed (a day will come) when seven or nine (landlords) will get hold of village lands. If some of you were not to beat up the

faces of others, I would have distributed all of this Sawad among you (Yahya, Kharaf, p. 30). He is also reported to have said that he had intended to divide the Sawad, but that he refrained from doing it because in that case the Muslims would have become over-bearing arid insolent landlords (Ibid). 'Omar I had also given this reason, viz. that, after they had become landlords, the Muslims would start fighting for rights over waters (Abu Ùbayd, Amwal, p. 58). Mal, who had pressed hard for distribution was told by 'Umar that as the lands were 'ayn al-incil (substance or source of wealth), they would hot be divided (Ibid).

40. Abet Ùbayd, Amwal, p. 59.

41. Ibid., p. 264, and Yacqfibi, Ta'rikh, II, 176.

42. H.A.R. Gibb, "The Fiscal Rescript of 'Umar II, Arabica, II (1955), p.3. Gibb believes that this rescript of 'Umar II circulated by him to his governors is genuine in its content and linguistic style (ibid., p. 2). See 'Abd Allah ibn 'Abd al-Hakam, Sira 'Umar Ibn 'Abd Asir (Cairo : al-Maktaba al-'Arabiya, 1927), pp. 93-100.

43. Ibid., pp. 4-5.

44. Ibid., p 10.

45. Tabari, Ta'rikh, V, 2411-2418.

46. Ibid., 2453-4.

47. Ibid., IV, 217-2.

48. He says : "I do not know what to say about the land of Sawad except making some conjecture ; I have found that the most authentic traditions transmitted by the Kufaos in this regard lack clarity-some of them are even self-contradictory. Some of them suggest that Sawad was taken by pull!, while others say that it was an 'anwa-land. They also report that Sawad was partly ànwa and partly sulk. (Umm, IV, 192.).

49. This tradition is related 'on the authority of Sufyan ibn Sa'id al-Thawri (d. 161/777-8) who is considered to be a very reliable sji in rof Kfifa. He was a contemporary of Abu Hanifa but was

Theory of Fay'

223

independent in his legal thought (Ibn Hajar, Tandhib, IV, 111 ff.).

Schacht calls him a lawyer and a representative of the ancient schools

(Origins, p. 242).

50. Yahyd ibn Adam, Kharaj, pp. 3-5.

51, Ibid., pp. 12-13. In his preface to Yahya's Kitab al-Kharaj, Th.W. Juynboll remarks

that fay', in contradistinction to ghanima of chattels, is derived from

the word afT a of the Qur'an (LIX : 6) and means lands (Netts)

acquired peacefully ; these were not divided as booty of war but instead belonged to the Muslim community as a whole (pp. viii-ix).

52. Ibid., pp. 12-13.

53. Malik, Muwaga', kitab al-Jihad, II, 470. Baladhuri, Furart, p. 447 ;

Zufigani, Shari! Muwafta', III, 350-351. Also see Sahnfin,

al-Mudawwana al-Kubrel. (Cairo : al-Matba'a al-Khayriyya, 1906),

I, 387.

54. Abu 'Ubayd, Amwal, 156.

55. Ibid.


57. In this connection the following traditions may be noted :

(a) The Prophet prohibited killing of al-wusafT (serfs, slaves), and

al-'usafT (hired day-labourers). Yahya, Ifhardj, p. 34.

Ibn Manenr, Listin, IX, 246, 357 ; Lane, Lexicon, V, 2045.

(b) 'Limas I exhorted the Muslims saying that they should fear

God because of the fallahan (peasants) and that they should not

kill them as long as they did not rise against them. Yahya,

Kharaj, P. 34.

(c) 'Umar I wrote to Abil Masa al-Ashcan to free all the tillers

and-farmers from among the prisoners of war (Abu 'Ubayd,

Amwal, p. 136.

(d) 'Umar 11 said that (Muslims) should -not kill monks and the

tillers (Yahya, Kharaj, p. 34).

58. Poliak, "Classification", p. 58..


59. Ibid., 57 ff.

60. Abh Yusuf, Kharaj, p. 63 ; Poliak, "Classification", p. 55.

61. Alai" Y {nut Kharaj, pp. 68-69.

62. Abil 'Ubayd, Amwal, pp. 55-76.

63. Poliak, "Classification'?, p. 57 ; Lokkegaard, Taxation, p. 79. According to Abu Yfisuf, there are two types of su/h-lands :

(a) 'alit shay' musammd, lands on which an yearly amount of tax is fixed, and

(b) qadr al-toga, lands on which tax is imposed according to the capacity of the tax-payers to pay (Kharaj, p. 23).

64. Shaft'', Umm, IV, 64-66, 81, 103-104.

465, Ibid., IV, 104.

66. Ibid., IV, 64 ff.

Raqaba signifies control or ownership of land itself, Ibn Mangfir explains the sentence (land rigab al-and-in the tradition of Ibn Sirin) to mean that revenues of the and al-Kharaj belong to Muslims-it no longer belongs to the former owners as it was conqured 'anwatan (Lisan, 4428 ; Lane, Lexicon, III, 1133). It is interesting to note that another derivative of rqb (to supervise, control, watch) it ruqba (usufruct for life). Literally it means a donation to a certain perSon who utilizes it during his life time-after his death the

thing returns to the donor. If the donee dies before the donor it goes to the donee's heirs. The jurists are of two opinions about ruqba : one group defines it as `diriya (lending) or hiba (a free gift), while other says that it is tamlik or ownership (Lisan, I, 426).

67. shag gives traditions to support his thesis that 'anwa or ijaf land was sometimes divided, fore instance the tradition of Jarir ibn `Abd Allah, the chief of Bajila tribe, which suggests that 'Omar I had compensated him for his renunciation of the land which was given to him in 'Iraq (Umm, IV, 81). Jarir was previously given one fourth of 'Iraq's ghanima of land after its 'conquest (Baladhuri, Fatah, p. 253. Tabari, Ta'rikh, IV, 2183, 2186, 2197-8 ; Aba Amoral, P. 29).

Theory of Fay' 225

68. Baladhuri, Fut4, pp. 242-253 ; Abu 'Ubayd, clinwa/, pp• 81-83 ;

Tabari, Ta'rikh, I, 2368-9.

69. Ann K.S. Lambton observes that the earliest Islamic theoretical formulations regarded all land which had no owner as the collective property of Muslims for the interests of the Umma (Landlord and

Peasant; 102).

For sawaf i lands see 'Legal ibn Adam, Kharaj, p. 45 ; Abu

'Ubayd. Amwal, p, 283 ; Baladhuri, Fatah, pp. 272-73 ; Tabari,

Ta' rikh, V, 2369-2376 ; C.A. Becker, Islamstudien, I, 22-3.

70. Schmucker, Untersuehungen, pp. 101 ff.

71. Ibid., pp. 141-45.

72. Ibid., p. 96.

73. Ibid„ p. 102.

74. Ibn Manzfir explains that the word ta' asaynd is derived from muidsat

and not from ta'dssiy. The word mu'asirt also occurs in the Hadith ;

it means al-musharaka wa al-musdhama f i al-mcedsh wa al-rizq, i.e.,

sharing and participation in the matters of economy and livelihood

(Lisan, IV, 35 1).

75. Tabari, Ta'rikh, V, 2369-2376.

76. Ibid., V, 2543.

77. 'Abd al-4Aziz al-Dori, "Notes on Taxation in Early Islam", in

Journal of the Economic and Social History of the Orient, XVII, Part 2,

(May, 1974), p. 139

78. Ibid., p. 139-140.

79. Schmucker, Untersuchungen, pp.' 101 ff.

80. BaladhurliFtitah, p. 252 ; Yalaya ibn Adam, Kharaj, p. 20.

81. Yaktya, Kharaj, p. 29.

82. Tabari, Ta'rikh, IV, 2183, 2186, 2197.2198.

83. Balddhuri, Fatah, pp. 267 ff.


84. B'aladhuri, Fatah, p. 268.

85, Tabari, Ta'rikh, V. 2467 ff ; Schmucker, Untersuchungen, p. 101 .

86, Abfi 'Ubayd, Amwal, p. 62. Also see Shafiri, Umm, IV, 192.


88. Shaybani, al-Siyar al-Kabir, II, 245-46.

89. Tabari, Ta'rikh, V, 2468 ; Schmucker, Untersuchungen, p. 127.

90. Schmucker, Untersuchungen, pp. 129-131.

91. 'Abd al-Rahman Ibn al-klakam, Fulfil! Misr wa akhbaruha. Edited, Charles C. Torrey (New Haven : Yale University Press, 1922), pp. 82-84, 214-218 ; and Baladhuri, Futiih, pp. 212-220, 226 ff. 265. •

3 92. lbn 'Abd al-klakam, Futuh Misr, pp. 88-89; Baladhuri, Fatah, p. 214; Tabari, Ta'rikh, V, 2582 1 Alan 'Ubayd, Amwal, p. 58 ; The original word, as Torrey also thinks (Futah, p 88), was probably Yaghdhuwa, and not yaghzuwa.


94. Ibn 'Abd al-klakam, Futfir, Misr, pp. 214-215, 218.

Ibid., pp. 82-84; and Baladhuri, Futuh, pp. 215-6.

Tabari, Ta'rikh, V, 2371 ff. 2467

Baladhuri, Patch, pp. 85-87. Also see John of Nikiu (lived in the 7th century A.D.) Chronicle, tr. R H. Charles (London : Williams and Norgate, 1916), pp. 193-94. See also Ibn 'Abd al-Hakam, Futuh, pp. 82-4, where he says that Egypt was mainly sun! and Alexandria 'anwa.

98. Talyari, Ta'rikh, V, 2588 1T.

99, lbn 'Abd al-klakam, Fulfil! Misr, p. 90.

100. Atari 'Ubayd, Amwal, pp. 141-42.

101. lbn 'Abd al-Ijakam, Ruth!! Misr, p. 162

Theory. of Fay'

102. Baladhuri.funlin p. 490.

103. A. Butler, The Arab Conquest of Egypt and the last thirty Years of he

Roman Dominion (London : Clarendon Press, 1902) pp. 461 1.

104. Baladhuri, Fulfil!, pp. 102, 107, 151-52.

105. Tabari, Derikh, IV, 2125, 2154, 2159 ; Baladhuri, Futuh, p. 122.

106, Balfidhuri, Futuh, pp. 173-175.

107. Abu 'Ubayd, Amwal, pp. 100-101, 513,

108. Ibid., p. 514, and ibn 'Abd al-klakarn, Sira 'Umar II, p. 95.

109. Schmucker, UntersuchUngen, p. 94.

110. Konkret gesprochen, bedeutet dieser Versuch, dass sich finanz-und wirtschaftspolitische Erwagungen des Staates auf die endgultige Scha-

ffung

klarer Grundbesitzverhafinisse, Rechtstitel und Eigentumsrecbte

richtelen1 wobei der Staat vol allem seine Rechte gewahrt wissen

wollte. Das geht aus den Wechselbeziehungen zwischen dem

Sulh-'Anwa-Komplcx und jetzt dringlich werdenden Rechtsgebieten wie Kauf und Verkauf von Land, Bekehrung und Grundbesitz,

Steuerhfihe und Status, etc., hervor (Untersuchungen, pp. 90-91).

111. Ziyad ibn Abihi (ibn Abi Sufyan) bemuhte sich wahrend seiner

Herrschaftszeit, Sulh von Ànwa klar zu scheiden ; er war dazu

(aber) nicht imstande (Untersuchungen, 88). This is the German

rendering of an historical report recorded by Khalifa ibn Khayyd(

(d. 240)854-5) : Jahada Ziyad fi sultanihi àn yukhallisa al-sulfa min

al-'anwati fa ma qadira ( Ta'rikh, Najaf : al-Majma' al-'11mi

al-'Iraqi, 1967, p. 107).

112. Parallel und teilweise vim' der Durchdringung der Rechts-und der historischen Literatur nit diesern Aufteilungsprinzip erfotgt der Kampf der Tradition (der historischen und (verwaltungs rechtlichen) als Reaktion auf die Aufstellung dieser These, alle Futuh-Gruppen dem System einzuordnen. Die niturliche historische Entwicklung der Landeiverwaltung und die sich ausformende rechtliche Konzipierung einer Su16.-Ànwa-Theorie werden von einem wirren,

teilweise anonymen Strom von Traditionen uberwuchert. Das Resultat dieser Verschmelzuug ist ein in Rissen, Widerspruchen und Zwangsharmonisierungen bestehendes Bild. (Untersuchungen, 95).

95.

96.

97.

•

227


113, Baladhuri gives detailed accounts of the lands which were conquered sulhan and `anwatan in the early period, see for example, Futilh, pp. 59. 113, 116, 121-3, 125-6, 130, 142, 151, 175, 447-8, etc. Malik, Muwa/la'; II, 470. Tabari, Ta'rikh, V, 2372-3 etc.

114. Ibn Qayyim, Ahkam, 1, 104.

115. Mu'awiya I appointed Ziyad governor of Basra in 45/665-6, Before this 'Ali had made him an incharge of the Bureau of Kharaj in Basra in 36/656-7 (Tabari, Ta'rikh, I, 71-3, and VI. 3229-30.

116. Ibn Man?fir, Llsdn, VII, 26-7 ; Ferozabadi, al-Qamds, II, 299. Lane explains that khalla,la min kadhti may mean "he saved, secured, or disentangled a thing" (Lexicon, II, 785).

117. Ahwaz comprised seven kuwar : him Siiq al-Ahwaz, kdra Jundishapur, kdra alSUS, Icara Surraq, kdra Nahr Tiray, kdra Munadhir, and kara Biyan (al-Bakri, Kitab al-MuVam ma ista`jam. Edited by F. Wustenfeld (Gottingen: Deurlich, 1877), p. 129.

118. Khallfa ibn Khayydt, Ta'rikh, I, 105.

119. Ibid, 106.

120. Ibid., 107.

121, Shaybani, al-Siyar al-Kabir, I, 259,

122. Baladhuri, Fut111j, p. 384 ; Yacifit, Mu'jam, I, 412.

123. Tabari, Ta'rikh, V, 2538, 2541.

124. Ibid., V, 2545.

125. Ibid., V, 2555-6.

126. Ibid , VI, 3430-32.

127. Yacifit says that Ahwaz was a well-irrigated rich land where canals had been laid out through its length and breadth. Because of its proverbial fertility, its kharaj used to be around 30,000,000 (dirhems, in Islamic times). Under the Persians this used to be 50,000,000

(dirhems). MuVam, I, 411.

128. Yaldya ibn Adam, Kharaj, p. 42 ; Abu 'Ubayd, Amwal, pp. 77 ff.

Theory of Fay' 229

129. Schmucker, Untersuchungen, p.92.

130. A similar interpretation of ibn Khayyat's text has been given by Albrecht Noth ("Zum Verhaltnis von Kalifaler Zentralgewalt and

Provinzen in Umayyadischer Zeit : die Su(11-`Ansva-Traditionen far

Agypten and den 'Iraq", in Die Welt des Islams, XIV, 1-4, 1973,

pp. 150-162). He maintains that the $ttlhd Anwa traditions concerning

Egypt and 'Iraq were 'not the original product of the period of

Conquests (Eroberungszeit) as has been reported in the sources, He

says that these actually originated under the later Umayyads under two aspects : first, the traditions of the tenor of qismat al-aradin

(division of lands) denote tne efforts of the Caliphs to bring the newly conquered province of Egypt under control of the central.

government. Secondly, in the case of 'Iraq, it is easy to understand

why objection was raised over sullrianwa lands ; Muslim conquerors

did not want their rights to the conquered lapis curtailed by the

central government. The sum-'anwa traditions in particular con-

cerned Egypt and Sawad, for these two provinces were the great

revenue producing areas (pp. 154, and 162).

131. Baladhuri, Futsils, p. 386.

132. Ibn Qayyim, Ahkam, I, 103.

133. Ibn Hajar remarks that there is controversy on the type of land

which was not divided by 'Omar f, yet the jumhdr, i.e., the majority

of the scholars hold 'that the land was made waqf and kharaj was levied on it, and it was made inalienable. The Kafans however

nriintained that this land was kept as milk (in possession )of the

infidels in exchange for the tax of kharaj (Fath, VI, 139).

134. Yahya Ibn Adam, Kharcij, pp. 38-41 ; Abh 'Ubayd, Amwal, 77 ff.

Also see Tabari, Kitab al-Ikhtildf al-Fugahlr. Ed. J. Schacht,

Constantinople Fragment (Leiden : E. J. Brill, 1933), pp. 225 IT.

135. Val.15,5. ibn Adam, Kharaj, pp. 42-44 ; Gibb, "Rescript'', pp. 3, 15-16.

136. )(acrid, Mt/jam, III, 179.

137. Abil Yusuf, Kharaj, 86.

138. Abu 'Ubayd, Amwat, 77.

139. Ibid.

230 Landlord and Peasant in Early Isla)",

140. Abu 'Ubaycl, Arnivat p. 78. The Jizya verses say : "Fight those who believe not In Allah; nor forbid that which Allah and His

Messenger have forbidden, nor follow the religion of Truth, out of thoie who have been given the Book, until they pay the tax (jizya) in acknowledgement of superiority and they are in a state of subjection (humiliation), wa hum faghlran (Qur'an, IX : 29).

141. (a) 'Abd Allah ibn Mas'ad says that one who takes lasg (tax of kharaj) land, takes dhull and faghar,

(b) Qabisa Ibn Ohu'yb says that one who takes land with its jizya, takes dhull and .F.aghar of dhimmis,

(c) Muslim 1bn Mishkam states that one who ties jizya in his neck, has nothing to do with Islam of the Prophet.

(d) 'Abd Allah ibn 'Amr ibn al-'As says that a Muslim, whose Islam

is excellent and who migrates and tights well in the holy war when returns carries a piece of land with its tax (off/rya/khan:IA is exactly the person who retracts his steps (he is no more a good Muslim). 'Abd Allah was asked by some persons about a Muslim who went to a Nabataean (dhimmi farmer) to buy dhimma-land in exchange for payment of the tax of jizya (kharaj). He replied that in that case it would be the start of saghar for the Muslims and thus they would be paying more than they were receiving. Aba 111bayd, Aneal, pp. 77-94.

Abu Da'ad records two traditions of Muradh and Abu al-Darda who hold that a Muslim who takes kharafijizya land in his possession, cuts his relation with Islam (al-Sunan, III, 180).

"Many Fuqua", says IChatib al-Baghdadi, "including Atimad ibn ljanbat, maintained that as the land of Baghdad formed a part of the land ol Sawad which was mawgafa (immobilized), it

could not be bought and sold. There are also some reports to the contrary, which suggest that this land could not be called usurped, maghsaba, for it belonged to its former dhimmi owners in exchange for the land tax of kharcij". Ta'rikh Baghdad (Damascus : al-Ma'had al-Faransi, 1949), 1, 4. Schmucker, Untersuchungen, p. 160.

142. Abu Yasuf, Al-Radd Siyar al-Awza'i (Hyderabad : Ihya• al-Ma'arif, 1938); p. 91.

CHAPTER VI

FURTHER DEVELOPMENTS

The Crisis under Ùthinin (23J644-351656)

We saw that under 'Umar I the conquered lands were, in

general, made inalienable common fay' ; land taxes were collected

from them and spent on maintaining the muqatila and their

families, and for social welfare. Furthermore, the Muslims were not only disallowed to appropriate these lands but were akso

discouraged to practise muzaira'a on private estates. Ùmar I.

had explicitly based his economic policy of bestowing fay' shares

on all the Muslims on the fay' verses of the Qur'an. He did

not make any distinction between those who actually left their

abodes, migrated to the amsar and waged wars, and those who

did not.'

After Ùmar I, a social crtsis developed, a tension was

brewing between the two groups or classes of people. The first

group was the 'Arab aristocracy (al-sabiqa wa al-qudma), the early

Muslims who had conquered these lands and had rendered ser-

vices to the cause of Islam. They had thus acquired a privileged

status and the right to the fay'. The second group consisted of

the anonymous mass of new Muslims, the beduins (al-a`rab), and

disgruntled individuals at large who also wanted their share of

wealth.2 After the changed circumstances, the Umma had

reached a point where people could question the legitimacy of the system of distribution of wealth, status and privileges. The

social system that emerged under Ùmar implied an allocation of wealth and reward. Conflict followed as a result of the

incompatibility of individual and collective interests. "After

Ùmar Muslims differed on the question of the real claimants of

the fay''', says Abu gUbayd, "one group maintained that a person

who does not fight against the enemies in Jihad, or does not

abide by Islam's commandment, or does not help collect


revenues, or does not do other things which promote the interests of the Muslims, and at the same time he is not one of the very poor (ahi al-faqa wa al-maskana), has no right in this wealth as the Prophet had said that those (like the beduins) who: do not migrate for the cause of Islam and do not fight in Jihad have no right in fay' and ghanima." "On the other hand", continues Abu Ùbayd,. "the people of the other (disprivileged) group said that the Muslims owned in common the entire fay' (al-Muslirniin shuraka' fi al-fay'), for they are of the same religion and constitute a unity, a league against other communities ; they share the wealth of each other and they are all equal without exception. They deduce this point of view from the policy of Ùmar I and base their argument on the Qur'an."3

The emergence of the Umayyad aristocracy and the autocra-tic regime was the finale of this conflict. The strife between the advocates of the concept of common fay' and the emerging powerful Umayyad State and the land owning classes is revealed in the pages of I1/2aladhuri, Tabari and Ya`qiibi dealing with the sections on 'Uthman and the early Umayyads.

The period under study, therefore, falls into two broad and distinct parts : first, the period of the Prophet and the Rightly Guided Caliphs (10/632-40/661) ; second, the period of the Umayyads and the early 'Abbasids (40/661-210/826). The first is characterized by pre-dominance of the idea of common fay' of the Umma, for Islam began as a cohesive religious community and evolved as a complex socio-economic body itt which the individual was subject to the overriding will and authority of the Umma. In economic terms it was a regime of egalitarianism which ensured equal rewards for all.

The second period starts with the Great Conquests of extended territories. The Umma expanded and was 'inevitably broken and stratified. As a result the social equilibrium was disturbed ; the 'disruptions and social disaffection which started in ‘Uthman's Caliphate was the symptom and not the cause of the violent transformations. These were naturally inevitable in the sense that clash between two viewpoints, between two

Further Developments 233

interest groups, between what is and what some individuals think ought to'be, between idealism and the actual state of affairs —in the sociological sense—is the motive force of a change in the social system which tends to regenerate the vitality and capacity for survival of the culture. Collective consciousness yields to a new order of individualistic trends. A. bi-polar development can be discerned in this connection : after the establishment of the "Territorial State" (under 'Uthman) under

the Umayyads, the old concept of common fay' was altered to

conform to the new needs of the State ; and a new interpretation of concepts and relations came into being leading to the theories

of private muzaraà.

Under the new individualistic tendencies concepts of private property and State ownership of lands were defined and specified more sharply. This new order encouraged the formation of landed property on a' dynamic scale. The notion of muzarda

could develop without restraint under this changed situation where the law and administration had adequately developed to protect the private rights to land ownership in its contractual relationships. We shall now examine the historical factors which contributed to the emergence of the-new social order.

It seems to be a gross misunderstanding by the modern and

medieval scholars to blartie, 'Cithman fOr the crisis to which he himself fell a prey. In his analysis of the situation under Ùthmaln, Schmucker says, "on one hand this proletariat of the desert and outskirts of the towns, and hangers-on (rawadif and

lawahiq) who claimed shares in the fay', threatened the Dfwan-

aristokratie, while on the other hand, the Umayyads declared

Kfifan Sawad as their own property. All this shows that a

certain centralizing political power was emerging. We see in Ùthman's role and his measures, the wish to strengthen and enhance the power of the central government, the improvement and extension of appropriated resources..."4

Theodor Mildeke observes, "under Ùmar I the basic rule

was that all things conquered by the Muslims were owned by them collectively. In the conquered lands the 'Arabs were not


allowed to hold landed property. Under 'Uthman the conquests extended but the 'Arabs were now allowed to own landed pro-

perty in the newly conquered regions...the principle of at least relative equality in profit sharing was violently broken through by the bestowal of Crown domains on persons of prominence.8

Abu Mawdfidl comes to the conclusion that contrary to the democratic policy of his predecessors (Abu Bakr and 'Umar), 'Uthman devised a regime of nepotism so much so that all power and privilege tended to concentrate within a single family.6 Without explaining the complex forces working at that time, A.A. Mawdffdi summarily gives his judgment, "of course, 'Uthman's whole economic and political conduct was wrong."7

The problem is not to judge whether 'Uthman's policy was syrong or right, but to delineate the forces which had made 'Uthman unable to carry out the ideals of Islam's economic justice, which was more due to lack of a political institutional framework without which ideals and theories were nothing but empty slogans, than to the personal weakness of 'Uthman..

The famous Shiite historian Yacqiibi is particularly critical of 'Uthman's economic policy: He records : "People were full of rancour against 'Uthman after the six years of his rule. They had grievance against him. They used to say : "Uthman prefers and promotes the interests of his own relations (the Umayyads). He has made an exclusive I.tima (a private enclosure of land). He has built a private house and has acquired many estates (diya'), and properties which originally belonged to God and the Muslims (i.e.,they were collective property)."8

Tabari reports that Salib ibn Musarrih, a leader of the Khawarij (the religio-political Muslim sect which had revolted against 'All and the Umayyads) in al-Jazira in 76/695-6 had strongly repudiated 'Uthman for destroying the just economic regime of the early period and for appropriating the fay'

)(ista'thara bil-fay').9 Yaljya ibn Adam also records two traditions which mention that the Prophet did not assign any private estate

nor did Abff Bakr and Ùmar I. The first to grant these private lands and sell them was 'Uthman.18 Ibn Sa'd tells us that


Zuhri related that Qurayshites liked 'Uthman more than they liked tmar I because 'Uthman was pliant while Ùmar was very stern and austere. Due to his leniency, 'Uthman could not check the Umayyad aspirations. Thus, he appointed his own relatives and family members to the high posts of provincial governors and gave them wealth and lands. He rewarded Marwan

with the khurns of Egypt (which was to be used for social

wel fare),I1

The fact is, as we have said before, that in the wake of the conquests, beduin tribes, groups and idividuals, the so-called han-gers-on, a kind of proletariat, were migrating in large numbers to

the amsar and wanted their share in the fay' which was made

common by Ùmar I. They were in a rebellious mood and could validly question the legitimacy of the distributive system in which stipends were given to certain preferred people such as the Qurayshite aristocracy. As there was no institutionalized arrangement to cope with this new situation, social discontent

deepened. In 'Iraq (Sawad), the qurra (villagers) considered the abandoned lands as their private estates but Mu'awiya made them

his $awafi (Crown lands).12 This explains the Fitna, the Rebellion of the disgruntled masses. The recurrent revolts of

the Khawarij were, among other factors, also motivated by this economic factor. They regarded the Umayyad governors as zalama (transgressors), who had misappropriated the wealth of

the Muslims.13

'Uthman's governor in Kfifa writes to him in 30/650-651 : Great social disturbances and upheavals are occurring in the affairs of the Kfffans. The aristocracy, members of the class of nobles and grand families (ahl al-Sharaf wa al-Buys-ad° have been overcome by the (mass) of people who are coming in quick

succession, one after another ; among them are Beduins who have caused great tribulation to the noble people.,,14 Wthrnan then wrote back to him (Sa'id ibn al-Às) that he should give preference to the sabiqa wa al-qudrna (people of priority and preference) because they had helped in conquering those lands.18 As the Qurayshite aristocracy was thus threatened 'Uthman told


them (the people of Medina) that the masses were inciting rebellion (and claiming their shares in fay'-lands) but he would

not allow others to take their property out of their hands ; he would, therefore, transfer their right to them. The Medinese

wanted to know the method by which 'Uthman could transfer the 'Iraqian fay' lands to them. He told them that they could sell those fay' lands in exchange for lands in the Hijaz. Thus, many tribesmen, says Tabari, bought lands in 'Iraq from such persons as Marwan ibn al-Hakam (who owned a forest called Nahr Marwan) in exchange for their lands in Medina, Mecca, al-Ta'if, al-Yaman and Hadramawt in the 'Arab Peninsula. The tribesmen thus became landowners in 'Iraq. Tabari goes on to explain that the fay', which the people of the garrison towns, amp, were claiming, comprised those abandoned lands which. were

,s formerly owned by the Byzantine and Sasanian royal houses and the people who were their followers. The people of Medina, after conquering these lands, had acquired them in terms of the amount of their shares. These were now sold by them in exchange for lands in the 'Arab Peninsula.I6

Thus, the original and. real dispute was over a fair distri-bution of fay' shares. The masses had revolted against the monopoly of the Medinese aristocracy over these fay' lands and the system of distributing stipends. They protested that the

people of Medina should not appropriate the shares for their exclusive use, because this wealth belonged to the people who had fought for these lands as well as to the Companions of the

Prophet. 'Uthman, on the other hand, advanced the argument that wealth did not belong to others (including the Egyptians. who had come to dispute with him) but to those who had conquered the lands and to the Shuyukh from among the Com-panions of the Prophet.17 The Egyptians were angry and said that this was nothing but plain craftiness of the Umayyads.I8 They told 'Uthman that he had assigned lands to some persons (as their private estates). These fay' lands, they argued, were common lands in which they, together with the Muhajirtin and the Ansar had common shares (sharakahum al-Muhdjir 'an wa a!-Ansar) eversince the time they were conquered. Whether a

Further Developments

237

Muslim actually happened to be on these lands or whether he came back to his home he must not be deprived of his share.I6

It seems that 'Uthman tried unsuccessfully to control this crisis and check the disruption which was created by the conflict

between the vested interests of the emerging Umayyad aristocracy and the new strata and groups who were claiming their share of

wealth and status. 'Uthman's argument was purely based on the old static conception of Umma which was characteristic of a fixed and limited community in the preconquest period. In this period Umma was more or less identical with its members who had actually conquered these lands ; eventually this sub-stratum of the basic concept persisted with tenacity. This explains why 'Uthman preferred the actual conquerors to the unknown mass of the new converts of 'Arab and non-'Arab origin. His economic policy of distributing stipends was there-fore consistent and logical under the circumstance, for these lands were conquered by these Companions ; besides they had rendered

selfless services for the glory and success of Islam. Neverthe-less, if the above-mentioned reports are correct and unbiased against 'Uthmal.n, it does seem that `Uthman violated the fay' principle as common property of all Muslims including "the future generations"—as laid down by 'Omar I, but, of course, the dimension of the crisis went beyond his control.

Under the Umayyads, appropriation and monopolization of

common fay' lands became a regular phenomenon. As the idea of collective. ownership had not been precisely and tangibly formulated in the form of regular institutions backed by political sanction, the matter was in a constant flux. The Umayyads, in

the interests of the State, gradually changed the concept of common

fay' to the State fay'. This point needs further elaboration.

Under `Umar I fay' was owned in common, i.e., revenues accru-

ing from the immobilized lands were spent.,on all Muslims, and land was not divided but was left in the precarious possession

of the former dhimmi owners/tillers. On the other hand, under

the Umayyads, State fay' was a sort of etatism, rather, a dynastic ownership of land. Priyate estates, as we shall see, were given


on large scale. Consequently private muzarrea developed on the

allodial lands. The Umayyads thus made persistent efforts to

make the conquered lands their own dynastic property. A

careful study of revolts, rebellions, and general social discontent

during their rule of almost one century (41/661-2 to 132/749-750)

reveals that the appropriation of fay' lands (isti' their al fay') was

one of the major factors. Even the Khawarij, as we pointed out

earlier, made the question of fay' their rallying point. The

Àbbassids later exploited this issue in their own favour. In his

first Khutba (public address, sermon), Abfi al-Àbbas, in parti-

cular, cites the sera of fay' and ghanima to point out that the

Àbbasids had arisen in revolt to restore the fay' to its rightful

owners (the people). He promised to give back fay' to its real

qwners. Da'ad ibn 'Ali also stresses the same point in his ipeech.29 Moreover, Aka al-Àbbas told people that the Umay-

yads had made fay' lands their own property and exploited them

for their own private use. They could thus appropriate them only

after depriving all other Muslims.21

It appears that the Umayyad Caliphs and their governors adopted the policies of their fotner Byzantine and Sasfinian royal

houses: like them they considered all conquered land their private

domains. Tabari reports that al-Qasim (who doubted the

theory that Alexandria and its villages were conquered without jizya or cand), relates that the Umayyad kings (mu/ak) used

to write to their governors in Egypt that Egypt was taken

ranwatan and that the Egyptian peasants were their slaves and serfs (rabid), and, that, therefore, they could increase the imposts and could do with them whatever they liked.22 This general attitude of the Umayyads towards the fay' of the Muslims is

confirmed by many other reports : Said ibn 'Uthman's governor in Kfifa, in 33/653-4 told some notables (wujith) of Kfifa, among whom was, maiik ibn Ashtar, that Sawad of Kula

was nothing but a garden of the Quraysh. Ibn Ashtar repudiated

him and said that Sawfid was conquered by the swords of the

Muslims, it could not be a garden of Sa'id and his family, and that the Umayyads owned nothing but their regular shares like those of other Muslims.23 Under the Umayyads, as our evidence


shows, the old practices of land tenure, the administration of

revenue, and old concepts and ideas pertaining to land

reappeared, and were reformulated. Even corvea was reimposed

on the cultivators. It was however temporarily abolished by Òmar 11.24 Gaston Wiet aptly calls the Umayyad and 'Abbasid

regimes as 'neo-Byzantine' and 'neo-Sasanide' respectively ; for, he says that these regimes retained the former administrative

systems and civil practices of land tenures in which the land

belonged to the State and the cultivators enjoyed usufruct and

paid for this certain rents and revenues.25. Under Mu'awiya extensive tracts of land were made sawafi. He had granted Fadak to Marwan ; in the year 48/668-9 he wrote to Sarid ibn

the governor of Medina, to seize all lands of Marwan and

make them safiya. In 54/673-4 when Marwfin was made governor, he was asked to seize all landsof Said in the llijaz.

They at first refused to comply.26

Although Ya`cnibi is biased against the Umayyads, yet his historical accounts about their land policies are not implausible.

He gives a detailed account of how Mu'awiya changed sawafi of Sawad, Syria, Mesopotamia, and Yemen into his own Crown lands.27 His estates were to be found in Mecca and Medina.

From these he granted estates to his family and clan ; the

Umayyads came to own a large number of extensive estates in

Medina.28 He made the lands of 'Amr ibn al-Às his private sawafi when 'Amr died in the year 43. He was- thus, says

Ya'qfibi, the first ruler who appropriated the lands of an 'ami/ (governor).29 Our sources also show that no igtei's or private estates were granted by tmar I and cUthman in cultivated lands.

Umayyads and their governors on the other hand started best-

owing estates on a large scale. Baladhuri gives a detailed list

of such grants.39

Important developments were also taking place in other

direction. 'Arab tribes were now being settled on the

conquered lands. During his governorship in Syria, Mu'awiya

was asked. by 'Uthman to settle 'Arab tribes in places remote


from the towns and villages where they could cultivate and

operate (iìlma!) the "dead" or abandoned lands. So the tribes of Tamim al-Rabiya, al-Mazihin and al-Mudaybir, a people

from Qays and Asad, were settled in all districts of Diyar Mudar, Rabià was settled in its own regions.32 These lands became

cushri, some of which were retained by those 'Arabs who had

become Muslims, or those who had developed the "dead" lands

which were not the property of any one ; or those which were

abandoned by the former Christian owners who had died leaving

these lands as mcvat, "dead" or abandoned—all these became

private estates of 'Arabs in al-Jazira.32

/qta's were also given to tribes as political rewards.33

Baladhurf states that during the Caliphate of Mulwiya I Neha-

wand belonged to the Futich of the people of Kati, and Dinawar

tb the people of Basra. When population of the Muslims increased in Kfifa, they tended to expand towards the contiguous

Kharaj-lands. This kharaj was in the past divided among them.

Dinawar was now given to the people of Kfifa, for which the

people of Basra were compensated with Nehawand (as it was part

of Isbahan).34 Many Khardj-lands on the Euphrates were acquird

by the Muslims and became private ùshri lands. In view,

however, of the diminishing revenues, Hajjaj ibn Yiisuf (d. 95/

713-4 turned these again to Kharriklands—these were made sadaya

or ùshr lands by 'Omar II. Ibn Hubayra again converted

them into Kharaj-lands. The ‘Abbasids later made all these

lands cushri..35

The Umayyads and the Àbbasids under the influence of the

former Byzantine and Sasanian administrative practices made

incessant efforts to convert large areas of the country into

dynastic estates. This developed under the category of sawafi-

as we have noted earlier. Therefore practice grew by which

large estates were acquired by conquest, confiscation or purchase —all these were turned into Crown lands.36 There is also much

evidence in the Muslim historical sources which suggests that

members of the Umayyad (and later 'Abbasid) ruling families

appropriated large areas of land for their personal use."


Talji'a (patrocinium fundorum of the Byzantines) was another

very important method by which lands were grachially transform-

ed into large estates. The pressure of heavy taxation and extortions of tax-farming under the Umayyads and the Àbbasids tended to strengthen the development of taljra.38 This institution developed parallel to the emergence of private cashri-lands and large estates of the ruling families. The owners of small estates, says Lokkegaard, occupied an uncertain and precarious position

between the mass of landless tenant-serfs, sharecroppers, and -

day labourers on one side, and the poweful owners of large

estates on the other. Under economic and social strains these

smal land-owners often lost their lands and were reduced to the status of mere sharecroppers and labourers.39 We have seen that this institution was known as patrocinium under the Byzan-tines.49 It was also common in Persia.42 It was resorted to by

small landlords either to protect their lands from the marauders

and invaders, or to avoid heavy taxes and oppression of the tax-farmers. This had reduced the small free-holders to tenants and

sharecroppers, Who preferred to work on the lands of the big

landlords rather than perish at the hands of the tax-farmers,

and bandits. To this recurring problem Abu Yiisuf gives

particular attention in his book Kitab al-Kharaj.42

Baladhuri tells us, "when the .Arabs had settled down in

Adherba'ijan many tribes came from Khfa, Basra and Syria after

them—all of them took into their possession whatever lands they

could lay. their hands on. Some of them bought lands from the

Persians. They became so powerful that many villages were forced

to seek protection from them (ulji'at ilayhim al-gura lil-khafdra) ; they gave up their possessions and became • their sharecroppers (muzarran). The peasants of Maragha sought talji'a of Marwan.

Uis agents then collected more lands and farmers so that they

became numerous i and all of their lands were appropriated for ta'azzuz, that is, with a view to protecting and strengthening them. The peasants then started cultivating them (as share-

croppers). Under the Àbbasids they were confiscated together with other Umayyad estates ; they were granted to some of

Hardn's daughters.43


It is quite clear that the patrocinium was applied generally

everywhere which made the large estates grow rapidly soon after the Umayyads had come to power. The small freeholder—if he ever existed under the early Caliphate—thus became a share-cropper on the large private estates and the Crown domains ; the agrarian systems of the pre-Islamic regimes reasserted themselves in their basic features. Marwan died in 65/684.5. Around

this time muzara'a recrudesced and became common on the large

estates.


to acquire an overriding interest. A passage in Baladhuri illust-rates all these developments succinctly :

"When Harlin al-Rashid was once passing. through Hamadan (in 178/794-5), on his way to Khorasan, he was stopped by the people of Qazwin. They told him of their (perilous) position vis-a-vis the enemy territory and their inadequacy in resisting the enemy. They requested him for consideration of their matter and that the compulsory levy of ùshr on their crops be reduced. Their taxes were fixed at 10,000 dirhems as mugdiaga every year. The people of Zanjan handed over all their estates to Qasim son of Harlin, who was governor of Jurjan, Tabaristan and Qazwin ; they had sought his patrocinium and help against the marauders and oppression of the tax collectors. They wrote for him the purchase-deed, and therefore, became his sharecroppers. The people of Qaqizan had become Muslims

and their land was ùshri. They had become its owner

after they had revived and developed it (from the "dead" category). They too asked for talji'a from Qasim and

accepted the condition that they would pay a second lushr other than that which they were paying to the Bayt The lands were also annexed to the Crown lands.46

From the reports it seems that there was a widespreaa tendency for the small peasant-proprietors to become share-croppers and serf-tenants on the large estates both under the

Umayyads and the Àbbasids. The sawaff (Crown) lands, gaiirr, and diyie. were numerous and extensive. The 'Abbasids liberally extended these estates : al-Mandi gave to five hundred men of Ansar many estates in Baghdad in the year 160/776-777.47

These estates multiplied by confiscations and expropriations. The lands of the people who caused revolts were forfeited and

made sawaff of the Caliphs. Mandi seized may such estates ; Harlin expropriated as sawaff the lands of Muhammad ibn Sulayman, Governor of Basra in 173/789-790 when the latter

died.48

We shall now see that the theoretical formulations of muzarcea

The case of Bafril,t, the Great Swamps of lower 'Iraq, is

a typical example of the policy of talji'a. During the time of

Hajfej ibn Yfisof the dams in the lower Sawad were breached and water of the river overflowed submerging large tracts of land under Water. The Caliph al-Walid ibn 'Abd al-Malik (86/705-961715) allowed his brother Maslama to spend 3,000,000 dirhems

tosrebuild the dams on the condition that the Caliph would give

Maslama the low lying lands as an igite. Maslama repaired

the dam and dug two canals, gathered labourers and share-

cioppers ('akara wa al-muzeirriln) and developed all these lands.

He became so powerful a landlord that ma* people abandoned their estates to seek his protection. The 'Abbasids also appro-priated and confiscated large estates and made them Crown lands

(Diyir

Indeed, under the 'Abbasids the practice of talji'a became

very common and small free peasants lost their lands and became

sharecroppers on the Crown lands : many small landholders of Euphrates lands in the hinterland of Basra petitioned the Caliph

Harlan that they would become muziirrtin on the domains of his

son 'All provided their kharaj mugrisama (proportionate share of

the crop as rent or tax) was reduced. The tax was decreased (and

they became sharecroppers).45

Under the system of partocinium, 'ushri-lands tended to be

merged into Khardj-lands and former small owners were becom-ing sharecroppers obliterating any distinction whatsoever

between a dhimmi sharecropper and a Muslim. The State came


by the Fuqaha' and the related problems of fay', kharaj, qabcila,

different methods of levying taxes, the custom of tying serf-

tenants to the soil, the institution of ihya' al-mawat, i. e., bring-

ing "dead" land to life through development, and various types of private estates were not merely their mental constructs, they

were the result of deliberate reflections on the raw material of

the concrete facts of the continuing custom and the State

administration. Theories of the Fuqahre are the general

formulae derived from -the actual social practices ; they

are juristic models which attempt to relate in a systematic

and coherent manner the Sharià values to the actual practice.

The development of the Crown, dynastic and private estates, as we saw, started with the early Umayyads—indeed, even during the Caliphate of Uthman who later became a

victim of the social conflict. Consequently the system of

muzaraà developed on the large estates under the influence of

selyeral factors : the Byzantine system of tax-farming or locatio-

conductio, sharecropping, the Persian concept of land as property of the ruler which is leased to the tenants in exchange

for a certain part of the crop, and lastly, tenants and serfs

perpetually attached to the soil for fiscal reasons.

With the deyelopment of allodial lands, muzara'a extended

to these too. All this coincided with the emergence of the individualistic trends, a concomitant factor and an essential

feature of the whole developmental process which unfolded itself under the early Umayyads and moved towards full develop-ment under the late Umayyads and the early Àbbasids. In

this context, the powerful autocratic Umayyad regime funda-

mentally changed the concept of common fay' to that of State

fay'. We shall now describe the concepts of /Jima, /Vac and

ihya' al-mawat, and thereafter the concept of kharaj'as rent of

land as expounded by the. Fuqaha'—the concept whereby they

rationalized and Islamized the actual historical data.


Private Landed Estates of Muslims

According to Alma ‘Ubayd, private lands (ardin al-ùshriya)

of the Muslims fall into four categories :

(a) Autochthonous lands whose owners had become

Muslims and had retained these as private ùshri estates—they

are their owners, such as the lands in Medina, T5.91, Yemen, Bafirayn, and Mecca.

(b) All lands which were conquered by force of arms,

ànwatan, which the Imam did not make fay'mawqufa, but,

instead; considered it ghanima and after deducting one fifth

therefrom had distributed the remaining four fifths among the

conquerors, like Khaybar. These lands became property of the

Muslims, milk aymanihim. The thughar or frontier lands belong to this category.

(c) Al-ard al-àdiya, i.e., all deserted land which had no

owner and no cultivator. The /mcim could give it as a private

grant, ig/re—whether from the 'Arab Peninsula or from any

other place, as the Prophet and after him his Caliphs had given iqiirs in Yemen, Yamama, Basra and other places.

(d) All "dead" or uncultivated abandoned land generally

called ard mayyita which a person reclaims, revives, irrigates and cultivates.49

All these categories of land are ùshri or tithe lands which

pay to the State one tenth of the produce in contradistinction

to the higher tax of kharaj which usually ranges from one fifth

to two thirds, more often half of the produce. We shall see that private estates and Crown/dynastic estates were gradually

made from the ànwa and still), categories of land in a complex process which started with the Umayyads. The concepts of

iqia` and ihya' al-mawat were also closely related to this process. /lima is another institution which occupies a significant position in the literature of Islamic land laws.

IIIMA

As we discussed in an earlier chapter, in the tribal economic

structure the concept of private ownership of land was not much

developed, because land was more or less a comment source of subsistence. This was also characterized as bimed50 the collective

reserves for grazing of cattle ; this had developed from the nomad stage and represents a relic of the old collective

property.53 In the pre-Islamic period, Ora had generally

become an exclusive enclosure of a tribe, or a ruling house. Àrab kings of Kinda used to have their own bimas which were

closed to other tribes.52 Shafig tells us that a powerful 'Arab chief, while coming upon a land, used to erect fences and hedges around it as far as his barking dog's sound could be heard. This pasture or 'common' would then become an exclusive graz-ing ground for his tribe's cattle, no other tribe could benefit

from this resource.53

Simultaneously with and parallel to the concept of fay' of

the Muslims, ',Jima also underwent a definite change from the -Orma of an exclusive tribe to the (common) bima of the Muslims. The religiously constituted single Umma here too replaced the

narrow loyalty to an exclusive tribe, by social solidarity. Firma

was made a common land 5a

Lokkegaard, however, has come to the conclusion that with the advent of Islam the 4concept of lama was changed to

mean an •individual private lama ; now the sharif or sayyid (chief of a tribe) tried to keep bima for himself and for his tribe. "This emerging individualism," says Lokkegaard, "undermined

the collective blind and made it an individual property.''55 This description applies rather to the Umayyad period when iiima

became an individual possession and was submerged into the

broader category of tqld`.

In the early period, Ond, as substantiated by, ample evidence, tended to be common land of the people. During this

period there was not much scope for individual bimd to grow

for various reasons.56 There is much greater probability that

at this stage bima was used for the benefit of the people and for

the defence of the Unima.57 The Hadith which says that there

is no bima except for God and His Messenger strongly suggests

that private bima cannot be made out of an abandoned and

uncultivated land. The birnd of Naqi` made by the" Prophet was basically founded for the benefit of the Muslims, as horses of war were reared on it, and the cattle which came as tax (jizya) of fay' of the Muslinis, used to graze there. These were all sources of strength for the Umma.58 Ùmar I established bimds of Rabadha and Sharaf in the vicinity of Medina, i.e., a common pasture ground for the use of all.59

Zurcifini states that Ùmar feared God so much that in his policy of making common Itima he favoured and flattered neither the rich like 'Uthman and 'Abd al-Rahman ibn Àwf nor curried favour with the poor. He carried out the Pro-phetic policy of making hima as a property of God and His Messenger.50 The deeper significance of this liadith according to Shafiì is that no individual can be allowed to own a piece of uncultivated land (ghayr ma`mar) so as to forbid others from grazing their cattle ; because the lands (common pastures) belong to God and not to any human being. Therefore the saying of the Prophet, says shawl, that there is no. him& except for God, underlines the fact that no bima is valid except which has been made for common good of the Muslims who own these pasturelands in common. After the Prophet the rulers have the authority to found a bimd according to the social needs—it is not legal for them to make any bima for their private exploitation.63

Mawardi states this in even more explicit terms. He says that although the right to make bima particularly belongs to the Prophet, yet, after him OW may be established by the Imam provided that he makes it for all Muslims, or for the poor and the destitute—it must not be for a particular group or for the rich people only. No individual and influential person can make ',lima for himself as the pre-Islamic people used to do. iiimet is valid in law only if it is founded for the poor in parti-cular, and for the interests of the people in general, as the Prophet did.62

The concept of Wm& was thus Islamized and extended to com-mon pastures as belonging to the Umma and not to a particular

246 Landlord and Peasant in Early Islam Further Developments 247


group, tribe or an individual." The problem of lama is associa.

ted with the general issue of "common lands" in Islamic law

which has been termed by Linant de Bellefonds as "les terres

communes"- He observes that mawat; "dead", or res nullius mark

the extreme limit of the "common" lands (res communes).64

Myr al-Mawat

Another related concept is that of MS' al-mawcit, bringing

of uncultivated and 'dead' land to life. This is a very important concept which has been discussed and elaborated by the Puqaha'

at great length ; it is basic to any understanding of the nature

and extent of private estates. In the juristic terminology

"bringing to life" means putting a piece of land to use by an

individual and thus acquiring proprietary rights over it." What

constitutes *la' ? What are "dead" lands (res nullius) ?

4 Whether authorization from the State is necessary for such a

revival of lands ; and whether this concept is early or whether

it is a result of the Umayyad policies to,.control grants of land

to individuals ?— are some of the questions which we shall investigate in this section. This concept also reflcets the indivi-dualistic tendencies which came in the wake of the Great

Conquests and which is espoused by such Fuqahr as Shafici, as

we shall see. This shows that in its eaeentials it was a policy

of the Umayyads who wanted to control the grants of ownerless

and uncultivated lands for fiscal reasons.66 But according to

Malik the customary practice of the Hijaz was that any person

who brought "dead" land (ard mayyita) to life became its owner.

He ascribes this policy to the Prophet and 'Umar 1.67 For

Malik, a person who brings such land to life, after irrigating and

cultivating it, acquires its ownership, which implies that no formal grant by the State is necessary. This phenomenon

probably developed after the conquests when large, tracts of waste

lands were becoming fallow and ownerless. This must have

resulted in the loss of revenues to the State. Malik thinks that this applies to the desert and waste lands far from villages and

towns, but not to the land near a cultivated territory. In the

first case no authorization is needed from the Imam, but in the

second case this permission becomes necessary."


Schacht considers these traditions as spurious which "in the generation preceding Malik were put into circulation, mostly in

Medina" to promote the idea that a grant by the administration

was necessary—so both the 'Iraqians and the Medinese upheld

the Umayyad administrative practice which in this case was

maintained by the 'Abbasids." This is however a very general

statement of the problem and does not apply to all the Fugaha'

Permission is not necessary according to Malik for lands away

from the towns. He says that this is "our practice (in the

I-Jijaz)".70 Shafici has his own theory, for he does not think that

authorization by the State is necessary. The Flarliths are probably

genuine and indicate a primitive stage of the concept of qua'. Originally these mawat-lands did not include the fay' lands. Abu Ydsuf gives, a comprehensive definition of the mawat-land which

he calls "mawat-land in the sulk and 'anwa-territories". He

defines mawat-lands as those lands—whether sulk or 'anwa—which comprise large tracts without any trace of agriculture, culti-

vation, structure of building ; non fay' lands which . are not fay'

of the village people ; nor are they common pastures (masrah); nor cemetry lands ; nor places where fuel wood is gathered ; nor grazing grounds for cattle ; they are not in any person's private ownership ; nor are they in any person's possession—all these

are mawat-lands. Anyone who brings them to life can become ' owner of the same provided that the Imam authorizes and gives

this in grant of an lap'.

Abii Hanifa a:so holds that permission of the Imam is a prerequisite. This condition, says Abii Hanifa, is essential to avoid counter claims to the same land:11 Shafi'i denies that any authorization of the State is necessary.72 Abu Ydsuf tries to make a compromise between these two views : he says that if

there is no dispute over land, and rights of any person are not being infringed, a land can become the private property of a person who develops it without entailing permission of the Imam provided that he cultivates this land within three years after its

tahjir or delimitation 73 This condition of three years wasimposed by 'Umar 1 to check the trend of many people during 'Umar's time to mark out-and delimit lands without cultivating them.14


From all this and in particular from the tradition of Samura ibn Jundub (d. 58 or 59 or 61/680-681)75 (related by Hasan al-I3asri : Samura had said that one who erected enclosures and delimited a piece of land became its owner), Abu Yfisuf signifi-cantly arrives at- the conclusion : "according to our own view this tradition of Samura means that the mawat-land, on which no person already has any lawful right nor is this property of any other's, if a person brings it to life he becomes its owner. As this land is his private property he can cultivate it himself ; or give it on atiaaraà-tenancy ; or lease it (against money) ; or lease from it canals ; or develop and cultivate such parts of it as are useful. If this is an 'ushr-land, he pays ̀ ushr, and if a Kharak

land, he pays kharaj ; but if he digs a well or a canal for purpose of irrigating it, it will become an 'ushr-land.76

1 This conclusion of Abel Yusuf reflects the agrarian conditions of his own time. Moredver, he is writing this policy matter as an advice for the 'Abbasid Caliph Harlin al-Rashid. This shows clearly that the system of mOtayage by this time (third quarter of the second century) had become widespread on the private estates, and this private muzaraà, in contradistinction to State-muzaraà, had developed both° on ùshr and kharaj-lands. We shall see that these economic conditions and the administrative policies of the Umayyads, and later of the 'Abbasids were the raw material on which the Fugalia' reflected, and then sifted, modified and Islamized the continuing tenancy practices.

The concept of ihya' al-mawat apparently reflects an upsurge of individualistic theory of land ownership under the graqian conditions. We have already referred to the fact that concerning the "dead" lands of }Ufa a controversy existed among many Companions as to whether or not to acquire such land as private property. Sa`d ibn Malik had to exercise his own individual

discretion : he settled down on a "dead" land (which he probably acquired in Kufa).77 Sawad of Basra was mostly mawat while the Sawad of Kufa was largely a Kharaj-land.78

All such reports must be compared to other similar traditions which suggest that many Companions were given lag's and


many of them engaged in muzaraà.79 The rudimentary elements of all these factors were most probably present in the early period of Islam when "dead" lands were being developed as State policy, obviously to augment the State revenues. However under the Prophet no such extensive- tracts of land were conquered and there was no need to reclaim "dead'? lands. These nebulous ideas could grow and develop only at a later stage. The general socio-economic environment of the early period offers less pro-bability for the individualistic tendencies to blossom and prosper. The concepts of common fay' of the Muslims and common hima of the early period confirm our assumption.

There is thus a contradiction and wide discrepancy between common pima and the theory of private landed property based on ihyai r Shawkani, however, sees no contradiction between

them. He defines hima as "a protected land which is forbidden to others ; it is contrary to mubah (permitted, lawful)". The implication is that one is forbidden to bring to life these hima-lands and thus reserve pasturages for one's own exclusive use.80 The Fugaher generally agree that private himas are invalid in the Sharià, only common lamas which had been made oy the Prophet and the early Caliphs are legitimate, for the criterion of legitimacy for hima is that it must not harm the Peneral and over-all interests of the Muslims.81

Yattya. ibn Adam, among others, gives a famous tradition in this connection: Irma àdiyy al-ardi lillahi wa Rasulihi wa lakum min ba`din fa man alya shay'an min mawtani abardi fa huwa ahaqqa bihi (verily, all uninhabited, uncultivated and owner-less lands are for God and His Messenger. After that (in the second place), they are for the Muslims...). Yahya observes that one who revives a "dead" land becomes its owner and authorization by the Imam is not required.82 As we have seen, this is, also the view of Shafiì.

Shafi'i classifies lands of Muslims into two broad categories : `dmir or inhabited and cultivated, and mawat, 'dead' or unculti-vated, He defines àmir in general as a land belonging to a people in as much as it is beneficial for them, such as a path, a

252 Landlord and Peasant in Edrly Islam

yard, a canal or a river ; nobody can come and claim ownership of these except with the permission of these people. Mawat lands, on the other hand, are of two kinds : those lands which were formerly cultivated and useful for Muslims but with lapse of time became. "dead". They belong to the owners just like 'amir. Secondly, those lands which do not belong to Muslims with regard to their beneficence or utility, like a path, or a yard

etc. or they are not cultivated whether or not they were owned in the pre-Islamic days. From the mawat-lands, says Shafici, as the Prophet had said, lands are given to those who (with their

labour) bring them to life—these are the mawat which a ruler can grant as qatra to a person who could develop it ; or public or common 1amii can be made by the ruler's order from this category for the use of all. It does not make any difference whether these ownerless mawat are situated near a settled village, valley or a desert, or near a running river or a waste land. 83

Under the title "What Constitutes Ilya' ", Shafiri elaborates the whole theory in great detail. He says that merely digging a ditch, or making a hedge or fence around a piece of land, or just pitching a tent upon it does not strictly constitute an ilyr. Real iltya' takes place only (when labour is expended), land is cultivated and planted. This plantation is a basic structure planted on the soil which is followed by tillage and cultivation primarily based on irrigation. These may be called the con-

, stituent productive elements of the process of qtya' which bring life to this "dead" land." This is for Shafi'l tamlik which brings the right to ownership of the land.85 Whether the Imam gives his permission it is immaterial for him. This shows that for Shafi'i human endeavour and enterprise play a prominent role in economic life : it creates social wealth and makes 'dead' land a valuable factor of production for the Umma. In the capacity of a person, who revives 'dead' land by his sheer initi-ative, labour and industry, one should be bestowed with the individual right of ownership to this land. The state must not interfere in this economic process and should not regulate by its overriding "authorization". This is a clear and succinct


statement of economic individualism in Islam. This is not the whole, point however, since, for Shaft% there is a clear-cut boundary between individual and collective property.

He excludes from individual ownership all types of mineral resources which cannot be granted as private iqtli` because

they are common property of the Muslims. So are the canals, rivers and natural growths. He adduces this theory of collective ownership of natural resources from the Prophetic Hadith which

suggests that the Prophet rescinded the iqta' of a Companion of

his which was found to have a salt mine. Shfifi'l interprets this Iladith in terms of collective 1.aima ; he explains that the salt

mine constituted a lama because a minels not the result of an individual's labour (in this case the grantee of the mine). It did not, therefore, ,constitute his private wealth as he had not spent his labour on it—this is only a natural resource, a free gift of nature, like water and herbage. If an individual, with a view to making his private estates, fences, demarcates, and delimits what God had created (for all) he reduces it to a

monopoly, a private ifima for his exclusive'use. It is obviously

not his private property, but a common natural resource, a

utility, a mirfaq for the Ummn. He can legitimately benefit

from it like other Muslims as he benefits from his share of water and herbage which is not his private wealth.86 Shafiri rejects

the interpretation that the mine was really originally an Wee

for an exclusive use of the grantee and not a 1ilma. He explicitly

formulates the general principle that a private grant of iaKt` can

only be made from such land which does not harm the interests of the people and by which the grantee may not enrich himself

because the Prophet gave iqta's of houses and some lands."

He further infers from all this "the lfirna which was forbid-

den by the Prophet implied that a person had appropriated a

piece of land-for himself without any legal right of ownershit

and without investing his capital on its development and cultiv-ation, and without creating any value or utility in it."88 This

is different from qatra ma'dhan, i.e., a piece of land which a

grantee develops with his capital and labour. Notwithstanding this, natural resources Which are not the result of an individual's

ry


efforts, investment and labour cannot be made private property

—even the imam has no right to make the natural resources his personal and exclusive possession, or a monopoly of any people, because they are zahir, i.e., open wealth for the use of everyone, like water and herbage. It is therefore not valid for any ruler to grant any part of such land as a private property. However, if he grants a piece of land to a person who develops and culti-

vates it he,can logically own it because he invests his money in it. If the ruler himself starts its talVir to make it his personal pro-perty this will tantamount to exploitation and transgression.89

We are now justified in concluding that Shafici, in his devel-

oped legal philosophy, makes a clear distinction between private

and public ownership of land. He makes the grant of private estate contingent upon the common good of the Umma (we shall have occasion to discuss this in the following section on ic,W). It seems that for Shafi'l the crux of the problem is to determine the extent and scope of individual claims to private ownership of land and at the same time not to harm the collective sensibilities and conscience of the Umma which forms the core of the Islamic ethics. Shafi'i is categorical that funda-mentally natural resources are common property of the Umma. When private capital comes to play its productive role in the

advancement of culture and social progress, Shafi'l admits its legitimate claims. The concept of irfaq, or public utility, appears to be the fundamental principle of his whole theory. The

conception of collectivity finds its very explicit statement in the definition of ?Lima of a natural resource which cannot be allowed as private property of an individual. This brings us to the important question of /age (grant of private estate).

The Problem of Iqti`

In this section we will analyse and discuss the concept of iota' (grant of benefice, or a piece of land). In the early period of Islamic history these Lain were granted by the State from "dead" or uncultivated' ownerless lands to increase agricultural production. The term iggig is derived from g./.`a., Oita', i.e., a piece, a part or a parcel cut off, a plot of land, ground or


herbage or house 9e QaPra (plural qiiiat) is a portion of land

granted as a private estate.91 In the early period a distinction

was made between two types of iold` : estates which were more

or less private property were called qalat, whereas grants of

concession, and tax farming or locatio were called igia'at.92

lqia` in the general sense of grant of private estate or

benefice constitutes an important problem in the economic

history of early Islam.93 The theories of the emergence of this

private property and the concomitant rise of individualistic -atti-

tudes are closely related to the concepts of common fay',, Khan*

lands, ihya' al-mawat etc. What does the system of lard' signify in

the total economic scheme which we have so far outlined in the

preceding pages ? Does it reflect emergence of individualism

after a brief period of collectivism which was characteristic of

the nascent Umma in the limited and simple milieu of the

Hijaz ? Could these grants of private lands be traced back to

the pristine period of the Prophet and the early Caliphs ? Was

this phenomenon—in its developed and sophisticated form—a

creation of the Umayyads and the 'Abbasids ? Could these

grants be given from the common fay' lands which were

immobilized by tmar I ? Or could these be give only from the

category of mawat lands ? These are some of the questions which

will be briefly dealt in this section

It seems that originally, in the pristine period, these private

iota's were few and limited ; the basic purpose of granting them

was essentially "to bring to life" the "dead" lands in order to

develop them for the growing needs of the Umma. "After

having seen 'dead' lands (in the Sawad of) in Kula", says Bukhari,

"Ali decreed that anyone who brought those lands under

plough would become their owner!'" It was made contingent

upon the fact that the grant in general must not override or harm the interests of the Muslims (la tadurru bi ahadin min

al-Muslimin).95 Grants were probably not 'formed or' of the

cultivated lands of the fay'-category. In the pre-conquest

period, in fact, these, grants were given largely from the mawat

of the 'Arab Peninsula. In the post-conquest period this custom


was continued and lands were given to individual Muslims from waste lands of the Sawad and other areas. The reason behind the choice of these areas was obviously that these territories were ownerless and the grants which by condition were not to harm the Muslim interests could be given only from abandoned ownerless lands: like forests, deserts and swamps etc., as for example in the case of Ùthman who is reported to have given ialti`s from the category of `dead' land of the Sawad.96

Under the Umayyads we reach another phase. During this period large, scale use of such igires was made for the first time. Not only mawat lands but even 'amir (cultivated) lands were changed into private property. This was coincidental with the buying and selling of Kharelfifay' lands—sulk as well as 'anwa. Thus the significance of private property ,emerged with the resurgence of all these ideas. Qur discussion will primarily be concerned with explanations of Abd Yfisuf, Abfi tbayd, Mawardi and other Fugalre.

QatVez, as Lokkegaard has shown, was of 'Arab origin which was further developed by the Umayyads ; however, Lokkegaard exaggerates the role of private lama in this growth which was actually rejected by the Islamic economic order. There is no doubt that private blind may have continued. But after the conquests had stabilized, the development of kW was accelerated by numerous other factors, besides the private lima. The institutions of the centralized Byzantine and Sisanian States, such as the Sasanian concept of State as the ultimate land owner, motayage, locatio (tax farming) and the Umayyad aristocracy were some of the important formative principles which started influencing the Islamic attitudes and notions towards the system of igter. The origin of in the absolute sense of private_ estate took place during the times of the Umayyads. Under the Prophet the concept was vague and nebulous. It could not develop and crystallize into something definitive.97 Although Belin's essay is now obsolete, yet it is not without' value. He observes that in the time of the Prophet the concept of /Or was of a special character.98


It is a fact that in the pre-Islamic days the Qurayshites

possessed private estates. 'Abbas ibn Àbd al-Muttalib and others had their lands in Tagf. After the conquest of Mecca •by the Prophet in 8/629-630, reports Baladhuri, the Meccans retained possession of their lands and thus Ta'if became an attached

district of Mecca.99 Abfi Sufyan ibn Harb, as we mentioned

earlier, also possessed a piece of land in Syria. After his death the estate passed to his son Mucawiya and was ultimately taken

over by the Àbbasids.790

Qallit under the Prophet and the early Caliphs

Abu Yfisuf states in general terms that the Prophet granted.

iqta's and thereby made reconciliation and won over (ta'allafa)

certain tribes for Islam.797 After him the early Caliphs too

followed this policy in accordance with the welfare of the

Umma. He gives seven traditions on iglac—five from the

Prophet and one each from climax I and Ùthman, and most of

them relate to mawat-landsm2 :

(a) The Prophet granted igtre to some people of Muzayna

or Juhayna. The recipients did not develop and cultivate it. Another people came upon it and started cultivating it. This led to a dispute. The former grantees later complained to ‘Umar I but he refused to evict the newcomers on the ground that if a grantee were to keep his land fallow for a period of three years he loses his right over it to another cultivator who cultivates

it.

(b) The Prophet gave to al-Zubayr a piece of land called Jurf which contained date palms in the territory of the Band

Nadir. Later when Ùmar gave igtei` comprising the entire

aPAqiq, it encroached on the land belonging to Ùrwa (son

of al-Zubayr). At this time tmar wanted to give igges to

the Muslims ; when Khawwat ibn Jubayr asked for it, Ùmar

granted him au

(c) After coming over to Medina the Prophet gave ig/cr to

Abu Bakr. Ùmar also granted iqtres.

258 Landlord and Peasant in. Early Islam

(d) There is another instance of iqta' when the Prophet gave land to Abu Rafi's people. They did not irrigate and develop it and sold it during Ùmar's Caliphate for 8,000 dinars or 8,00,000 dirhems.193

(e) The Prophet gave iqta' to Baal ibn Harith al-Muzanl which lay between the sea and the rock (i.e., it was a 'dead' land). When 'Llmar became Caliph he asked Baal to give up the land except the mine as he had not developed it.104

(f) 'Uthinan ibn 'Allan (during his Caliphate) gave igla's to 'Abd Allah ibn Mas'ad in Nahrayn (Euphrates and Tigris) ; to 'Ammar ibn Yasir in Istiniya ; to Khabbab in San'a ; to Sa'd ibn Malik the village of Hurmuzan. All these lands, says Aba Miff, had running channels. 'Abd Allah ibn Mas'ad and Sa'd used to advance their lands on muzara'a for one third and one fourth of the produce of land.'05 Abu Yasuf quotes Abu Hanifa to the effect that Àbd Allah ibn Mas'ad, Khabbab, Husayn ibn 'Ali and Qacli Shurayti all possessed Kharaj-land and paid tax of kharaj.106 These grants of land were given from the category of abandoned ownerless sawafi.107

From the above-mentioned traditions, Abu Yasuf draws his inference that the Prophet and the early Caliphs granted lands for two purposes : for winning over tribes to Islam, and for developing, more lands for the Umma in which lay the strength for Islam—without these no lands would, have been given as private estates.199 Aba Thu(' thus characterizes the grants as being conditional, the rider being that the general interests of the Umma are not to be harmed, in the sense that these must promote agricultural production and thus strengthen the Umma so that development of all waste and 'dead' land is made pos-sible. It also appears from the evidence that to a great extent iqta's were personal possessions with limited rights which later on became hereditary. But the absolute right of lordship, as the traditions clearly imply, vested in the Umma (or State), for these grants could be withdrawn " if left uncultivated for three years. This conception belongs to the early period and not to later times as Lokkegaard assumes:199


Yabya ibn Idain also records traditions of the same genre which suggest that the Prophet and the early Caliphs did not

grant any iqta'. The Prophet discountenanced acquisition of

private estates.110 Jabir, on the authority of 'Amir, says that

the Prophet never granted any /Oa' nor did Abu Bakr, Òmar

and 'All. The first Caliph who gave private iqta' and sold it

was 'Uthman.111 The traditions which forbid that any Muslim

should acquire an estate have been given by Yabya in the section

on iqta' wherein he records some other traditions to prove that these grants could be legally given only from the category of 'dead' lands which had no owners. They could not be given

from the Khartifrland which legally belonged to the fay' of the

Muslims. This is the basic sense of these Hadiths.112

From his discussion of iqta' and flyer al-mawat, Yatya

implies, first, that no igiii's could be given from the category of

far/Khariij lands. Second, neither the Prophet nor Aba Bakr,

Àll, nor cUmar 1 gave iqta's unless it was to be given from the

category of 'dead' land. Third, Ùmar I gave igiiir from the

'dead' and waste lands of non-fay' categdry in the Sa- vad.113

Fourth, private grants therefore,could legally be given from the ownerless waste lands. One who could develop such a land became its owner. If he left the land uncultivated for a period of three years it was withdrawn from his possession and given

to someone else.114

Abu Ùbayd starts his discussion of igia' with the Hadith :

"the Prophet declared that all 'dead' and ownerless land, 'adiyy

al-and, in the first place belongs to God and His Messenger ; after this it belongs to you (i.e., Muslims)". Abu Ùbayd's starting

point is his interpretation of the term 'adiyy al-ard which he

makes the very raison d'être and basis of NW grants. He

defines it as an ownerless and abandoned land which, like an

ant mayyitri, s in the last resort at the disposal of the public authority : it has not been brought to life by anyone, nor is it

owned by any Muslim or mu'iihad. "This was the reason",

he says, "why Ùmar I wrote to Abu Masa-al-Ashàri concern-

ing a 'dead' land that if it was from a Kharajllizya land or was

irrigated by the water of jizya it could not be given in iqia'


for the purposes of grazing horses". From this Abu Ùbayd concludes that only an ownerless 'dead' land can be given as an iqta',116 and that in such matters the Imam is free to take any action he considers appropriate. Ùmar therefore had said that "control over land rests with us" (land riqab al-and, 1. State).116

Abu tbayd's fundamental thesis is that in the early period of the Prophet and the Caliphate, as a general principle, iqta's were strictly given from mawat-lands and not from Kharaj-lands.111 He extends this definition of mawat from waste and 'dead' to swamps, forests, marshes and deserts. The main pur-pose of granting these estates was economic : to bring 'dead' lands to life with the help of irrigation and development in order to increase the agricultural production and augment revenues of the State.118 He gives a detailed critique of the traditions abetut the Prophet's five grants of Wee which are reported to have been given to individual Muslims—date-palm for al-Zubayr, Syrian villages, an iqfa` in Yamama, a piece of land for Bilal, and lastly an /Oa' for Ibn Hammal.119

That the Prophet gave some grants cannot be disputed, but to say that he definitely made it a policy is entirely a differ-ent thing.120 The Prophet's granting of tqfa' was a relic of pre-Islamic custom but the practice largely started with 'Uthman when NM's were given out of sawafi and 'dead' land of Basra. About the reports concerning grants of land by Aba Bakr, Abu ‘Ubayd has his misgivings. His supposed grants to Tallja and ‘Uyayna, he says, were repudiated by ‘Umar during Abu Bakr's Caliphate on the ground that such grants could not be given to the exclusion of other people.121 According to Aba ‘Ubayd, however, Ùmar changed his opinion afterwards as he himself gave grants during his Caliphate.122

Abu 'Ubayd discusses in detail the grants given by Ùthman some of which we have already discussed. It is said that cuthman gave NOM in Sawad. Aba ‘Ubayd thinks that they might have been given from 'Umar's sawdfi lands of ten cate-gories which were abandoned and ownerless.121 These lands


consisted of tracts from the abandoned lands of Khosroe and his family, all low lands (swamps) and postal stations. All these had become 'dead' and 'adiyy without traces of any cultivation and without owners. When 'Uthman became Caliph he considered that cultivation and development of these lands would make them productive and increase revenues of the State ; their abandonment was taken by him as wasteful ; he gave them to those Muslims who could cultivate them and

pay gushr.124 Abu tbayd affirms that no grants were given

in the Sawad from non-mawat lands : "What has been establi-shed by evidence is that 'Uthman's grants of land were only from the ownerless sawrifi which had been taken over by Ùmar as names of the granted villages show—Sa‘naba, Nahrayn and Qariyya Hurmuz. Hurmuz was one of the Khosroes whose lands were 'abandoned and had become ownerless".126 For

Abu Ùbyd, then, only 'dead' lands are the source of private

estates, of which entitles the right of private ownership.

According to 'Abu Yfisuf, qafat in 'Iraq could only be

given from those lands which were abandoned by Khosroes, members of the royal family and provincial governors, and those who had fled away ; all swampy lands and forests which

were later made sawaff by 'limas I and which were of ten

categories.126 He observes that these categories of land are like wealth which does not belong to anyone. It is valid for

a just Imam to grant them to those Muslims who promote the

interests of. Islam and do not indulge in favouritism and avoid enriching themselves and spend wealth for good purposes. In

'Iraq these qatat therefore must be given only from these abandoned 'dead' lands. The grants given by the rightly

guided governors cannot be withdrawn by anyone.121 All those

lands in 'Iraq, Vijaz, Yemen, Talf and other parts of the 'Arab Peninsula, which are ownerless and uncultivated, can be given

by the Nam as iqfar to a person who brings them to life ; the

Imam is also authorized to change the kharaj status of iqta‘

into that of tushri. Thus Aba Ynsuf gives complete powers to

Harlin al-Rashid in this regard except that in Arabia no kharaj

can be imposed.125


Abu Yusuf significantly remarks that the public authority

must see in this connection (of granting igtd`S) that the interests

of both rich (khassa) and the common people (àmnia) are

safeguarded. According to him then iqra' is given from the

maw& of both Kharaj and ùshr lands. He does not see any

reason why an ownerless and waste land should not be given

as a private estate by the imam when this could help bring more

lands under cultivation and thus increase agricultural production

and revenues of the state. This shows that Abu Ydsuf's

conception of /§à' reflects a. developed state of affairs where

State plays a considerable role in the economic sphere and where

individual initiative is also rewarded.

For Shafiq too, bringing of 'dead' land to life is the main

basis for individual ownership of land. This economic policy

1 for him is based on the Sunna of the Prophet. We have

already seen that Shat.i does not allow private grant of a natu-

ral resource for its being a common property.129 The ownerless

mawat-lands can be given in iota' in which an individual invests

his capital and labour, and helps increase the social wealth. He deems it probable that the Prophet had given grants in Medina.

Medina is situated between two rocky grounds (labatayn), he

explains, and its lands formed two parts : first, ma`misr, the

cultivated part containing agricultural lands, structures, wells, plants and crops. The other part was exterior to it verging

on the desert. The last part was given in Wei' by the

Prophet.139 He reaches this conclusion after discussing two

fladiths of ihya' and ̀ adiyy al-ard.131 He says that in these two

liadiths there is a proof that as a principle mawat-lands are not

the property of anyone ; any Muslim who brings them to

cultivation acquires the right of ownership on them.

This il)ya', as we saw before, consists in irrigating the soil

and investing in its development.132 Shafici classifies iqtcr into

two categories : (We tamlik and lqta` irfaq. Iqta`-tamlik is that

grant which is ordinarily claimed fora 'dead' land according to

the Sunna of the Prophet and which becomes a private estate

with the right of ownership. The iqta' irfaq consists of a

benefice or usufruct held by the grantee. It is for him a source


of gain and profit which he utilizes and enjoys in exclusion to

others ; as long as he holds it, it is inalienable. As illustrations

he gives the example of a trader who takes a seat in the common market place. As long as he stays there as a trader he is entit-

led to utilize it. But as soon as he leaves the place (after the

day's business) his privilege to use the place also comes to an end.

Another example is that of a beduin who wanders from place to place and at a certain spot pitches his tent. This act of the beduin does not constitute 'imara or the structural cultivation by which he can claim the spot as his private

property. These seats of traders and pitched tents of beduins

are not equivalent of bringing 'dead' land to life. The criterion of owning a private estate is OF"' al-mawat and the actual development of land by private investment.133 ShaThi thus conceives of private estates as the result of private capital investment and endeavour in virgin lands.

This stage of development can only be reached when a

community develops an instinctive desire for private property

which leads to greater accumulation of wealth through their

investment in agriculture. This means that the community

develops rapidly through private enterprise. It appears that these economico-juristic principls were formulated by the Fuqaheii to further the development of virgin and abandoned lands. They keenly felt that the growth of private property would produce more wealth for the Community. At the same

time this presupposes a law of property relations : more preci-

sely, the law of tenancy then develops which seeks to define a

framework of economic and legal relationships based primarily

on contracts and obligations. In this sense, the institution of rata' is rather an economic category which expressed in juridical terms comprehends the entire process in which the 'dad' land is transformed into an important productive factor in the service of the Community. It is then easy to understand the significant saying of Shafi'l : "It is the duty of the waif (ruler or governor) to grant an Wei' to a Muslim who requests him for such a grant".134


The interpretations of mawdt and 'amir as given by the

Fuqahri' are sometimes ambiguous and vague, which shows a clear evolution of the concept itself in different social contexts. Mawardi tells us how AIDA Hanifa, Abu Yusuf and Shafi'i differed on the definition of mawat.135 Aba Hanifa defines maw& as an expanse of land which lies beyond 'amir and is inaccessible to water. For Shafi'i, it is that land which is

neither an 'attar nor a Karim (legal boundary, or a thing for-

bidden to others) of the 'amir even though it may be contiguous

to and connected with the 'amir.

Abfi Yusuf, , on the contrary, defines it in a peculiar way :

Mawat is that land at the nearest limit of which if a man were to stand and shout at the pitch of his voice no one in the

'amir land could hear him.136 These vague definitions of no man's land of natural vegetation makes the difference between

it and Mord very thin, for both are without a tangible owner ;

and the application in a given situation in the final analysis lies with the State administration. The private lama as conceived in the pre-Islamic days lay dormant during the period of the

Prophet and the early Caliphate as the Umma remained small. However, later under the Umayyads and 'Abbasids not only

maw& (in the primary sense of the word) but even 'amir lands of

both sun' and 'anwa categories were given as private estates.

In this connection Mawardi's book al-Altkam al-Sulianiya is very important as it remarkably delineates all the elements which

cropped up during later times.131

Mawardi's Classification of iqta's

The classification of iqtte as given by Mawardi (d. 1058/ 1648-9) in its fundamental theoretical aspect is mainly based on

Shafi'i's categorization of iqta' tamlik and iqiie irfaq, which we

have already seen. Mawardi, who himself was a Shafi'ite jurist,

closely follows the legal postulates of Shafi'i. This fact must always be taken into consideration when a comparison and correlation of the legal theories of Aba Yasuf and Mawardi is made. Mawardi in his basic approach to the problem of

iqta' classifies these into two broad types : iqta' tamlik and 1(10'

Further Developments. 265

istighlal. The former is an estate of private ownership and the later is a grant of revenue, benefice or usufruct, of possession and not of ownership. The iqta' tamlik is of three types : mawat, 'amir and ma' adin (mines). Mawat are either ancient (qadim) or abandoned which go out of cultivation ('aril) whether they were owned by Muslims or not.138

'Amir estates are of two kinds : those which are specified by a grantee before the conquest of the land like the estate of Tamim al-Dari in Palestine which was granted to him by the Prophet before its actual conquest. The other type of ̀ amir estate is not specified beforehand. The sawafi of former Crown lands belong to this category. So are Kharaj-lands (of which no iqtti` tatnlik can be given as it is a waqf-land : only iqter Vara or lease of wctq f land can be given) and those estates owners of which die intestate and they revert to the Bayt al-Mal to be used for the good of the Muslims (the Fuqahii' disagree on the validity of this intestate iqta').139

Ma'adin or mine estates are either zahira, open or external natural resource, like water, oil, tar, salt or antimony ; or Wm, hidden, like gold, silver or iron which cannot be extrac-ted without labour. This is also controversial among the Fugalur : some of them hold that only usufruct or irfaq can be given in iqta' and not raqaba (ownership). kW istighlal is of two kinds : grants of revenue of 'ushr and of kharaj as iqta'. Only revenue of land can be granted in these iqta's. These vary according to the status and position of a grantee.

This brief account of the classification of /We shows that many later elements have entered into the theory of iqta'.

From the preceding discussion of al-mawat and /gilt' we may draw the following conclusions : first, the Prophet and the early Caliphs, ‘Uthman in particular, granted iqta's but on a very limited scale and only from ownerless 'dead' lands.

There are some reports to the effect that even 'Uthman only gave rights of usufruct or utilization (manfa'a) over the Sawaff-/Oa' in the Sawad.140 This theory is attributed to Abu Pala (d. 458/1065-6).'43 The policy of assigning lands or usufruct


was not pursued as a definitive principle in early times. The traditions of the genre of Mdiyy al-ard, as Schmucker rightly says, seem to be tendentious and belong to the Umayyad period when these problems emerged as a part of the general develop-ment of the theories of private property, and the legal relationsh ips.142 More precisely, the development of the private estates starts with the Umayyad land policy. The essential features of the theory of /Oa' were elaborated and systematized by the Fugaha'.

Second, the names of a great number of the recipients of igla's are also associated with the 'Iraqian institutions of matayage

and gabala (tax-farming). The recipients are generally those who also settled in 'Iraq, like 'All ibn Abi Talib, Sa'd ibn Abi Waqqaa, 'Abd Allah ibn Masud, 'Ammar ibn Yasir, Khabbab ibn. Aratt, Hudhayfa ibn al-Yaman, Abu Musa al-AshàrL Jar'ir ibn 'Abd Allah, Wa'il ibn Hair, 'Utba ibn al-Farqad, Qays ibn Abi Hazim, 'Abd Allah . ibn Mughaffal, Suwayd ibn Ghafala, 'Abd al-Rahman ibn Yazid, Qadi Shuraylt, Sa'd ibn Malik and others. Many of them also allowed purchase of Kharaj-lands by the Muslims as an exception to the general law of ban imposed by Ùmar I.143

The contributions of Carl Heinrich Becker towards under-standing the problem of iota' in the early Islam are noteworthy. His thesis is that the gatat of early Islam emerged out of the Byzantine phenomenon of agri deserti, abandoned State

lands. He rejects the theory of M. von Berchem who holds that the concept of qatat originated in the sawilfi lands of

Ìraq in the early period of Islam subsequent upon the Great

Conquests, since these were ownerless lands particularly the abandoned Persian State lands (Domaniangater).144 Becker says

that a considerable part of this abandoned land did not consist

of State land, rather it was mostly cultivable land (Kulturland).

The rest of this abandoned land comprised waste and swampy land which was considered "dead" or mawat, and was given in gat/V/ 4.143 Like the Domaniangiiter, the agri deserti must also be of value to the Treasury—they were also taken up. So these gatizT developed into a powerful complex.146


From this it is reasonable to believe that the emergence of the concepts of individual ownership of land and private muzara'a are correlated and coextensive. The situation was certainly very complex and took time to unfold and crystallize in the two Sawads of Kiifa and Basra where there were extensive abandoned 'dead' lands. This situation must have given great impetus to the rise of strong tendencies of individualism and private property.

The Theory of Dhull and Seal& and the Principle of Rukhsa

In the previous sections we have seen that the fay' or Kharaj-lands were made inalienable property under the early Caliphate. Subsequently the conceptualization of fay'-lands passed through different phases of change and development. The communal and collective ownership of fay' gave way to the emergence of private landlordism in w gradual process of development. It is clear, however, that during the early years of the Caliphate, fay' or Kharaj-land was inalienable. Abu Ùbayd and .'Yahya ibn Adam give traditions from Ùmar I, 'All, Hasan al-Basri, Malik ibn Anas, and Sha'131 who disapproved of buying fay'-lands. We have seen that Malik categorically stated that ànwa-lands were fay' of the Muslims in the sense that revenues from them were spent on them. For this reason he reprehended the action of the Egyptian al-Layth ibn Sa'd (d. 165 or 175/791-2) when the latter took ownership of a certain land in Egypt (dakhala fi), presuming that Egypt was conquered aulijan,141 and hence was a slab-territory.

At the second stage of change, as the difference between

ma and 'anwa-lands became sharp, it was held that there was rukhsa (exception to the general rule of prohibition) in relation to sulk-lands. Thus the ground was paved for the appropri-ation of sulij-lands and turning them into private cushri-land. Àbd Allah ibn Mughaffal (d. 57 or 60 or 61/680-681) who later settled down in Basra and Muhammad ibn- Sirin (d. 110/ 728-9), gave the opinion that the sulk-lands of Sawad, for example, Hira, Baniqya' and Ullays could be bought. Ibn Sirin himself possessed a piece of Kharaj-land and used to lease it on


muzdra'a on one third or one fourth part of the ' produce. He considered this to be sulk-land and thought that only 'anwa-land was a common fay' of Muslims.148

Shafri comments that su/b-land can be taken by Muslims on

lease just as houses, animals and slaves are hired. This is not saghar on the Muslims as jizya/kharaj is a debt on dhimmis. He interprets the Hadith (that a Muslim should not pay kharaj and the polytheists should not enter the Masjid al-Liaram), as meaning that this refers to the tax of jizyaJkharaj and not to the rent of land which is not forbidden (for the Muslims).10

At the third stage of the development of this concept of

fay' even the distinction between sulk and canwa was obliterated and such prominent Muslims as 'Abd Allah ibn Mas'ad,150 Ibn Sirin, 'Llmar IT, and Sufyan al-Thawri are reported to have considered that KharajAands were alienable:151 Abu ‘Ubayd records that ‘Umar II was of the view that there was rukhsa in Kharaj-lands, and that the concept of jizya which is the subject of the Dueanic verse (IX - 29 : "Until they pay the jizya out of their own hands, and have been humbled, wa hum seighirlin", concerns merely a tax on the heads, and not on lands.152 Another tradition related by al-Layth ibn Saffi says that Ùmar

II had stated that jizya was on persons and not on land; there-fore, says Abil Tbayd, according to cUrnar II, a person who

acquires a piece of land (in Kharaj-land) does not contravene

this Qurffinic injunction.153

We have seen that al-Layth's interpretation of canwa land was rejected by Malik and other juristis. Al-Layth was res-pected for his piety, but he "was compliant and slack (sithata)"

in narration of liadiths. He was a very rich land owner : his annual income liable for Zakat was 80,000 dinars.155 Abu tbayd explicitly states that the leading juristis—old and new—have differed on the issue of buying Khardj-land ; those who re-

prehend buying of Kharaj-land are greater in number than those

who allow rukhsa in this connection ; the evidence given by the former is more convincing than that given by the latter.156


Abfi tbaycl adds that the main difference of karaha (reprehen-sion) and rukhsa concerned crop-and fruit-bearing agricultural lands which could be used as sources of income and revenue liable to payment of kharaj ; they did not relate to the residen-tial houses over which there was no controversy. For the purposes of residence Kafa was divided into sections (khitat) during the Caliphate of climax I. Many Companions, and after them, Successors had settled down in Kufa and other parts of Sawad and also in Egypt. These settlements were in towns and agricultural lands were not concerned.152

Those Fuqahcr who allow ruhksa in Kharaj-lands generally argue on the basis of 'Uthman's granting of private estates in

Sawad.158 But as we have seen and as Abu Ùbayd also affirms no grants were given by 'Uthman in the Kharaplands of Sawad.

Moreover, 'Limas I never gave any NO' in the Kharaj-lands of Sawad, Syria and others : he once gave lands near Damascus for garrisoning of horses, but when the grantees had started cultivating these lands the grant was cancelled and they were made to pay the compensation for tilling the soil. 'Uthman had granted estates. from the category of sawdff which were ownerless and abandoned.159

The Companions who have been reported by Baladhuri and other early sources like Tabari, were in one way or other associated with newly conquered 'dead' lands which they reportedly had revived and developed.160 'Abd Allah ibn Masffid, Saffi ibn Malik, Zubayr ibn al-cA.wwam, Khabbab ibn al-Aratt and Usama ibn Zayd were allowed by 'Uthman to retain these as iqta's. Baladhuri gives this tradition on the authority of the Successor Musa ibn 'Falba (d. 103 or 104/ 722-3) who first settled in Kafa and then moved to Basra.161 Musa says that Ibn Masud and Saffi were his neighbours and both leased their lands against one third or one fourth

share of the crop, i.e., on muzaraà.162 Such reports are highly

significant. They suggest that, as metayage was a common practice of the Byzantine and Sasanian agrarian 'systems, the early Muslims who settled in these areas after the Conquests,

1


leased their lands on muzitra'a, according to their own iftilad (individual discretion).

Schmucker gives his own interpretation of all the traditions which suggest or not that Kharaj-land was alienable, and of the measures which were taken by 'Umar Ibn 'Abd al-'Aziz 163 Schmucker concludes that all these traditions comprise different

elements : the regulation of State finances and economy precipi-

tated, during the time of Tlatiaj ibn Ydsuf and Ùmar II, an

official ban on the purchase of dhimma-land, which, because of ali-

enation was generally becoming Mshr-land. These traditions, says

Schmucker, bring this ban on purchase under an ideal and more

realistic aspect : in real aspect, under the conception of fay' are reserved the mass of State lands as the source of revenue of kharaj which must remain immobilized. The ideal motive bred on religio-social grounds attempted to suggest to the Muslims that the dhimmez7land was associated with the Qur'anic concept of dhull and saghtir—these were extended soon to jizya and Kharaj. Thus the dhu//-motive was extended from the dhimmis to the Muslims; and the fay' motive was indeed on the other hand more generally a rationalizing principle.164 This rationalization on the part of the Umayyads was obviously done for fiscal reasons, and the very idea of waqf or common fay', which was formulated by 'Umar I, was now given a new direction by them.

171

NOTES

1. AIM Ùbayd, Amwdl, pp. 213-14.

2. See H.A.R. Gibb, Studies on the Civilization of Islam. Edited by

Stanford J. Shaw and W.P. Polk (Boston : Beacon Press, 1962), pp. 3-33 ; and, Martin Hinds, "The Murder of the Caliph 'Uthinan",

in International Journal of Middle East Studies, 111 (1972), pp. 450-469.

Martin Hinds suggests that the conflict was not mainly between the Meccans and the beduins but was also between 'interests

rooted in traditional pattern of leadership and privilege, and interests rooted in a new and different pattern of leadership and privilege which had emerged under the Prophet and during the

early Caliphate of Abu Bakr and 'lima? (pp. 467-8).

3. Abu Ùbayd himself subscribes to the viewpoint of the second

group. He says that the Prophetic Hadith and the policy of Ùmar,

if comprehended in their historical perspective, do not seem to be

contradictory. According to him, in the beginning of Islam, before

the conquest of Mecca, the beduins, who did not leave their tribes and migrate for the cause of Islam, were not considered true Muslims, and therefore, were not entitled for the membership of the

Umma, and for shares in fay'. At this time hijra (migration to the

settlements) was the real criterion. After the conquest of Mecca, all Muslims were considered to have their shares in fay' (Abu

Ùbayd, eln:wil, pp. 214-223.)

4. Schmucker, Untersuchungen, pp. 136-39.

5. Theodor Noldeke, Sketches from Eastern History, trans. John Suther-

land Black (Beirut : Khayat's 1963. Reprinted from the edition of

1892), pp. 76.77,

6. Abu al-Alla Mawdudi, Khilafat wa Mulakiyat (Lahore : Islamic

Publications, 1966), pp. 107-108.

7. Ibid., p. 116.

. 8. Ya'qubi, Ta'rikh., II, 208. Also see Telma, Ta'rikh, VI, 2952-2954.

where he says that 'Uthman gave lands 'to the Umayyads.

9, Tabari, Tat rikh, If, 881-3.

10. Yallya ibn Adam, Kharaj, 58,

11. Ibn Sa'd, Tabaqat, III, 64.

12. Ya4 q0b1, Ta'rikh, II, 233-4.

13. Ibid., II, 884, 887, 889.

272 Landlord and Peasant in Early Ishim

14. Tabari, Ta'rikh, V, 2852-3.

15. Ibid.

16. Ibid., V, 2854, 2855.

17. Ibid., VI, 2964; Gibb, "Rescripi", p. 9.

18. Tabari, Ta`rikh, VI, 2964.

19. Ibid., VI, 2953.

20. Tabari, Ta'rikh, I, 29-32.

21. Ibid., I, 30.

22. Ibid., V, 2583-4.

23. Ibid., VI, 2916.

24. Gibb, "Rescript", p. 7.

25. Gaston Wiet, "L' empire neo-Byzantine des Omayyades et ]'empire neo-Sasanide des Abbasides", Cahiers de Histoire Mondiale, I (1953), pp. 64-65.

26. Tabari, Ta'rikh. I, 85, and VI, 164-5 ; Ya'qubi, Ta'rikh, II, 265.

27. Ya`gribi, Ta'rikh, II , 258-259, 278.

28. Ibid., II, 278. The Umayyads even controlled the market hi wheat in Medina which made the Medinese resent these economic policies of thellmayyads in the 1.11.jai (A.A.A. Dixon, The Umayyad Caliphate 65-861684-705 (London : Luzac, 1971), p. 141.

29. Yascifibi, Ta'rikh, II, 264, 276-277.

30. Baladhuri, Fatah, pp. 503, 505, 507, 510, 514,

31. Ibid., p. 178.

32. Ibid., pp. 152-180.

33. Tabari, Ta'rikh, II, 487 ; Dixon, Caliphate, p. 87.

34. BalddhurI,Furah, p. 306.

35, Ibid., p. 368.

36. Tabari, Ta'rikh, I, 445, 482. Lambton, Landlord and Peasant, p. 25.

37. Baladhuri, Fatah, pp., 207, 329-330.

38. Talji'a is derived from laid a, to seek protection. The: meaning also contains an element of compulsion or force under the pressure of circumstance. In its technical sense, tali Pa means giving uap


property and entrusting it to another person's protection (Ibn

Mtwara', Lisdn, I, 152). Ibn Yusuf al-Khawarizmi (Kit4b Malden!

ah'Uldm, Lugduni-Batavorum, E. J. Brill, 1895), defines it as giving

up of .a data (estate) by a weak owner in favour of a strong person

(big landlord) in order to protect it (p. 62). (Also see Lokkegaard,

Taxation, p. 67).


40. See above p. 155.


42. See below, pp. 295 if.

43. Baladhuri, Furall, pp. 329-330.

44. Ibid., pp. 292-4. Qudama ibe Ja`far, IOW al-IChardj, added to

Khordidhbeh's Kite* al-Masdlik (Leiden : E. J. Brill, 1889), pp.

240-241.


46. Ibid., p. 323.

47. Tabari, Ta'rikh, (3), I, 483.

48. Ibid., (3), I, 496.

49. Abu tbayd, Amwdl, pp. 512-3. letiqflt gives a more exhaustive list

of private estates under six categories :

(a) Autochthonous Àrab estates.

(b) lityce-estates, which were abandoned by their owners after they had beeh killed or had fled-they thus became ownerless and uncultivated. Or, lands which were simply "dead". Anyone who brings such lands to life, irrigates and cultivates them becomes their owner. They fall both in the categories, of

Ùshri and ICharaj-lands.

(c) Ànwa-lands, which were distributed among the conquerors.

(d) /0W-estates, which were granted by the imam in order to develop

lands.

(e) .Safrlyri-estates, which formerly belonged to the royal houses as those of Khosroe in theSawdel, and which were made Crown or

private lands at the discretion of the ruler.


(f) Frontier estates, which were situated in the areas lying on the

thqhar whose owners had fled in wars and which had fallen

into the hands of those Muslims who went to settle there (Mir/am, I, 50-51).

50. Literally /Jima means 'something protected' and 'forbidden' to others: a piece of land which is exclusively used by some and forbidden to others (Abu 'Ubayd, Anval,\ 294 ; 31. Chelbod, 'lima, in the Encyclopedia of Islam, god' ed. 1971, p. 393). An Ùbayd explains that the meaning of the Hadith ;pima ills lillahi wa Rasalihi: there

is no 1iimd except for God and His Messenger) is that.the things which were declared by the Prophet to be common property of the

• Muslims, like water, herbage, and fire etc. cannot be made private

and exclusive hima (Amwdl, p. 294). Also see, for hima-traditions, Bukhari, .51(rhil!, kitdb al-muzara'a : bab ; Abu Da'ad, al-Sunan,

III, 180-181. Chelhod thinks that Selma was of pre-Islamic origin, it

developed in the tribal structure and had a religious connotation

(Encyclopaedia of Islam, 2nd ed. p. 393).

51. Lokkegaard, Taxation; p. 20.

52. Ya'cliabi, Ta' rikh, p. 11, 149.

53. Shafi'i, Umm, III, 270 ; Zurgani, Sharh Aluwat(a', V. 507-510.

54. Ibn 'Abd al-Dakam, Sira Ùmar II, 97.

55. Lokkegaard, Taxation, pp. 29-30. From the evidence in al-Bakri

(Kitab Mu'jam) about the Nina Dariyya Lokkegaard erroneously

infers that in the times of the Prophet this him& became a private

property (Lokkegaard, Taxation, pp. 29, 32). It is an inaccurate deduction from the passages in al-Bakri. The hima Dariyya was a

large hima consisting of an extensive pasture area fall of plants and

bushes. It had also ten wells, one of which was known as Dariyya

after which the entire him; took its name. In pre-Islamic times, seven tribes of the clan of Kitab had rights over it-they were the richest tribes who mostly owned this property of Nola (Bakri, Kitab Muijam, pp. 626, 6291. In the pre-Islamic days too the well

of Dariyya in particular was in the possession of Dhfi al-Jawshan

al-Dibabi. He became Muslim while this well was still in his possession. He recited the following verses in the pre-Islamic days in which he refers to the well of Dariyya :

I supplicated God when my family was hungry to give me food near the mountain Wasat. He gave me Dariyya, the best of wells which ejects water and twin of love (ibid., pp. 629-630).


This evidence from Bakri himself shows that when HMI al-Jawshan became Muslim he was allowed to retain the well of Dariyya only

for use of his tribe. There is no mention whatsoever nor any hint

or implication in the text that • he ever retained the entire hima for

himself and for his family in exclusion from other Muslims. It may

also be noted that Alen al-'Abbas al-Saffah (132(749-1361754) gave

Dariyya and the land watered by it as an iqta` to one of his relations,

Ma'ruf Ibn 'And Allah (ibid., p. 630). Also see Yaccit, Winn, III,

471 ff ; and Phebe Marr "Dariyya", Encyclopaedia of Islam, 2nd Ed.

(1965), pp. 159-160.

56. Baladhuri, Putfrh, pp. 8-9.

57. Shafi'l, Umm, III, 270.

58. Shafiii, III, 270 ; Abu 'Ubayd, Amwal, 298, 300 ; Baladhuri, Eutral.

p. 9; Bukhari, Sahih, kitdb al-muzaraà

59. Baladhuri, Futf47!, pp. 8-9; 'Ubayd, Amwdl, pp. 28-9; Shan't,

Umm, III, 271 ; Malik, Muwaffa', II, 1003 ; Zurgani, Sharh Muwatta' ,

V, 507-510.

'Umar made his client Hunayy incharge of the alma at Rabadha and

said to him : 0 Hunayy do not oppress people. Desist from doing wrong to them, for their cry for help will be readily heard. Admit

into the him& small herds of cattle belonging to the people and let

their animals graze. But do not allow herds of the rich people,

such as those of 'Uthman ibn 'Allan and 'Abd al-Rahman ibn 'Awl.

If the cattle of such rich people perishes they can fall back upon their other resources of agriculture in Medina. On the other hand, if the cattle of a poor man dies he runs towards me to complain of his poverty. I cannot leave these people destitute and I do not

allow it. It is easier for me to make them share with others the

resources of water and pasturage than distribute gold and silver (money as charity) among them. They would then think that you have wronged them. These. lands and waters are their own (i.e.,

their common property). They used to fight for these in the pre-

Islamic days, and they became Muslims over theth Muwalke,

II, 1003 ; Abu 'Ubayd, Amwal, p. 298; Abu Yasuf, Kharaj, pp. 59-60).

Zurgani comments that the Muslims are the owners of these lands-

this was the appropriate policy of 'Umar. These lands were mawal

lands, and were made hima for the cattle of sadaqa and for the good

of Muslims in general (Shari! Muwaga', V, 507-510).

60. Zurriani, Shari!, V, 509 ;

61. Shafi'l, Umm, III, 273.


62. Mawardi. .4hIcam, p. 323.

63. A beduin from the Banfi Thaclaba protested to 'Umar for making common hima. He said ; 0 Commander of the faithful, you have made hima out of our lands for which we fought in the pre-Islamic times. We embraced Islam On these lands. 'Umar replied that lands belong to Allah (a1-6115.du bilad Allah)-they are made hima for the cattle of the Treasury of Allah. The Muslim warriors ride them in holy wars (Abu 'Ubayd, Amwal, p. 299). Abis 'Ubayd says, referring to this tradition, that 'Umar made hima both for the cattle of sadelqa and for soldiers (ibid., p. 300).

4. Y. Linant de Bellefonds, "Un Probleme de sociologic Juridique: Les Terres 'commune' en Pays d' Islam", Studta Islamtca, X, (1959), pp 111-112.

65. Y. Linant de Bellefonds, "Dryt ", Encyclopaedia of Islam, 2nd. ed., 1053.

M. Schacht, Origins, pp. 202-203.

67. Malik bases his theory on two traditions-one from the Prophet': one who brings a 'dead' land to cultivation becomes its owner, and for a person who unlawfully (bi ghayri haqqin) comes upon this land, ploughs it, develops and plants anything, there is no legal right

(haqq). This is a mursal Hadith in al its narrations. The second tradition is that of 'Umar I,* who says that one who brings 'dead' land to 'life' becomes its owner (Muwatice, II 743-744 ; Also see

Bukharl, Sahih, kitab al-buys' ; Abu Yfisuf, Kharaj, pp. 36 ff.) As

regards the first Hadith, Zunlani says that after Hisham the tradition

is found mursal and there is a controversy about it. Sharh, IV, 424.

68.

69.

70. Abu Yfisuf, Kharaj, p. 36.

71. Ibid.

72. Shafi'i, Umm, III, 264-65.

73. Abu Yfisuf, Kharaj, p. 37. For a detailed discussion of talllir, see

Yahya, Kharaj, pp. 64-65 ; Abu 'Ubayd, Amwal, p. 291 ; Mawardi, Ahkirm, pp. 308-9, where he disagrees with Shafi'i that plantation and cultivation is the fourth condition of a valid ihya'.



75. Samura ibn Jundub was a Companion of the Prophet, he had settled down in Basra. Under Mu'awiya he once acted as governor of Basra In lieu of Ziyad ibn Abihi (Ibn Hajar, .fraha, II, 77-78.


77. Ibn Hajar, Isaba, II, 31.

78. M. H. al-Zubaydi, al-Ifayat al-Iltimartyya wa al-Iqtiscidiyya fi ed-Kala fi at-qarn al-amwal al-Hijri (Cairo : al-Matba'a al-'Alamiyya, 1970), p. 144.

79. Abfr `Ubayd, Amwal, p. 278 ; Bukhari, Sahih, ;Willi al muzard a records that 'All, Sa'd, Ibn Mas'fid and 'Umar II practised muzarda.

80. Shawkani, Nayl, V, 347.

Ibid. This apparent contradiction is perhaps due to the late development of the theory of thyas al-mawat in as much as authoriz-, ation of the Imam is concerned, which characteristically in its essential, form dates from the Umayyad and early `Abbasid period, which came after the Great Conquests that brought vast waste and abandoned lands.

Shawkani quotes Ibn al-Jawzi that the traditions containing all these different problems are not necessarily contradictory, for hinia which has been interdicted is obviously of the category of pre-Islarnic /gold in which large tracts of land used to be monopolized by individuals and tribes, while ihya' basically refers to those 'dead' lands which have no utility for the Muslims as they are ownerless and uncultivated (161d, V. 348). Y. Linant de Bellefonds considers that the purpose of authorization by the Imam for reviving w'dead' land is to ensure that the land which is to be brought to life and thus transformed, into private property is not "common" (pasture) land which cannot be revived and acquired as an individual property (Encyclopaedia of Islam, 2nd ed., 1053. Also Studia Islamica, X, (1959), pp. 123 ff.)

82. Yahya, Kharaj, pp. 62, 64.

-83. Shafici, Umm, HIV, 41.

84. Ibut

85. "All ̀ emir land of ̀ anwa-category belongs to conquerors' and to people who are entitled of khums-one fifth. If the conquerors give up their claims all the land belongs to the Muslim Community as a whole. The ownerlessmawat-lands in the 'anwa-category however belong to those Muslims who develop them according to the Hadith (one who brings 'dead' land to 'life' becomes its owner). Skafi'i Infers from

Zurgani, Shari!, IV, 425.

Schacht, Origins, p. 202.


the Idadith that a dhimmi cannot become owner of an 'anwa-'dead'

land, for 'anwa-land belongs to Muslims ; if this is a sulk-land, dhimmis are subject to the stipulation of the 50z-treaty. Shaft%

Umm, III, 241.

86. TN& III, 215.

87. Ibid., III, 266.

88. Ibid.

89. Ibid.

90. Ibn Manzar, Lista', VIII. 280. Ibn al-Athir, Nihaya, III, 264.

Zamakhshari, Asers al-Bakigha (Beirut : Dar §adir, 1965), 514.

91. Ibn ManzEr, Lisan, VIII, 280. Lane, Lexicon, VIII, 2990.

92. Lekkegaard, Taxation, p. 60.

-93. M. Sobernheim gives a brief account of various types of jurists'

theories of them and a bibliography in the Encyclopaedia of. Islam,

1st ed. 1927, II, 461-463. Claude Catien gives a concise statement

of the historical development of NW in the later period of Islamic

history under the Buyids and the Saljhqs (ibid., 2nd ed.1971, 1088-1091).

94.. Bukhari, kit ab al-muzdra'a.

95. Yakiya, Kharaj, p. 58; Abu 'Ubayd, Arnica!, p. 277.

96. Abu 'Ubayd, Amwdl, pp. 283-4.

97. M. Belk:, "Du Regime des fiefs militaires dans l' Islamisme", in

Journal Asiatique, XV, Series 6 (1870), p. 192.

98. Ibid.

99. Baladhuri, Futah, p. 56.

100. Ibid., p. 129.

101. Abu 'Thad, Kharaj, pp. 34-35. Abh 'Ubayd, Amwal, pp. 281 ff.

102. See thedist of these tutit's of the Prophet, Abh Bakr, and 'Uthman

etc. in al4hli, Adab al-Kat:db. (Baghdad : al-Maktaba al-'Arabiyya

1922-3), pp. 210-213. Baladhuri, Fatah, pp. 21, 29, 73, 93, 127, 129,

144, 148, 152 ; Abh al-Sunan, III, 173-8.


104. Other sources mention some more igid's given by the Prophet, for

instance, the tqlci s of Wall ibn I-jajr at Iladramawt (see Tirrnidhi,

$(21101 and Abu al-Sunan.

Further Developments


106. Ibid..

107. Adab, p. 212. In another report these iqfd's are attributed to 'Umar I (Yahya, Kharaj, p. 57).

108. Abu Yusuf, Kharaj, p. 35. .

109. Lokkegaard, Taxation, pp. 14 ff.

110. Yahya, 'Chatty, pp. 56-59.

III. Ibid., pp, 58-9. These inia's were given by 'Uthman probably from the 'dead' lands. The following report recorded by Tabari is highly significant. Sayf-'Amr-Muhammad-4Amir says that-in the time of 'Uthman, igia's were given to al-Zubayr, Khabbab, Ibn Mas'ild, Ibn Yasir and Ibn Habbar.. If 'Uthman had erred in granting these private estates so did those who received them-they are the illustrious Companions from whom we learned our religion. And 'Umar I granted inters to Talha, Jarir ibn 'Abd Allah, al-Ribbil ibn 'Amr. He also gave to Abu Mufazzir the (aid' of Dar al-Fit-these qa(at were given as nafal or supererogatory reward, from khums of booty of fay'. 'Umar also gave /aid' to Abh Musa ; and 'All granted al-Kurdhsiya to Karns ibn Hani and also gave land' to Suwayd ibn Ghafala al-Ju'fiyy (Ta'rikh, V. 2376). Shaybani also subscribes to the theory that the Prophet gave igld's to al-Zubayr, A136 Bakr, 'Umar, Subayl, 'Abd al-Rahman ibn 'Awf, from the lands of Banil Nadir, as nafal-both from ' (Aura and ghamira (cultivated and uncultivated lands). Kitab al-Siyar al-Kabir, 11, 611.

112. Yahya also gives the following important traditions to prove his contention :

(a) Abu Bakr bestowed on al-Zubayr as an Ala' the land which lay between Jurf and Qanat.

(b) 'Umar I gave Yanbu' to 'Ali as an iqtal.

(c) The Prophet gave to 'All, Mir Qays and al-Shajara,

(d) 'Umar I gave to a certain beduin a pasture in Laid' in non-jizya land on the banks of Tigris, in Basra which was not irrigated by the water of Jaya (Kharaj, pp. 57-58)

113. Ibid., pp. 57-58.

114. Ibid., pp. 62-67.

115. AV: 'Ubayd, Amwdl, pp. 278-9.

279


116. Ibid.

117. Ibid., pp. 277-279,

118. Ibid, pp. 283-84. Also see Mni. Thu!, Khardf, p. 35.

.119. The five grants discussed by Abu 'Ubayd are as foltows :

As regards the Prophet's igid` for al-Zubayr which comprised a piece of laud with date palms, it was given either from a 'dead' land,

which an Afar( had left uncultivated and had given back to the Prophet, or it was given from sa.flya in Khaybar. In the latter case, says Abu 'Ubayd, it was a property of the Prophet ; he could (in his private capacity) give it to any person he wanted whether it was 'amira or ghayr 'allure land. However, he expresses his doubt about this grant and says that he does not know any other iqld' which contained fruit trees and was not a waste land (ibid., pp 59, 279. See Abu Yfisuf, 'Massif, p. 35; ). lbn al-Athir also thinks that the Prophet might have given this tap' to Zubayr from share of the khums because as date palm is a mal sdhir aWayn holfir al-mat (a manifestly ready source of profit which needs no revival or development) it cannot be granted as an kid'. Nihaya, III, 264; see Iba Manzfir, Lisan, VIII, 281.

Abfi 'Ubayd also tries to explain the Palestine estate of Tamim al-Dari. It was also a cultivated land and had owners. He conject-ures that it could be a nata/-award which the Prophet might have promised to Tamim long before the actual conquest of Syria. %mar had also given to Jarir of Itajila one third or one fourth of 'Iraq as noted before its conquest. (AM* `Ubayd, Amwal, pp. 279-280 t - 13 aladhuri, Futzlh. p. 129;' Tabari, Ta'rikh, V, 2376; Abel Yusuf, Khardj, p. 132). G. Levi Della Vida discusses this estate in detail. He says that this iglde remained in Tannin's family till quite a recent period and at the present time the keeps of the haram al-Khalil es claim to be descendants from Tamim al-Ddr

\i: But he thinks that the

document which mentions this grant seems to be apocryphal. He also observes that it might even be asked if the traditions associated with the name of Tamim are based on any historical figure if his per-sonality is not completely legendary ("Tamim al-Darr, Encyclopaedia of Islam, 1st ed. 1934, pp. 646-648).

As regards the grant of Furat ibn Hayyln in Yamama, Abu tbayd records the document in which the Prophet gave him in writing certain mawat-lands as igla' in Yamama (Abu 'Ubayd, Amwal, p. 281 ; Waqidi, al-Maghdzi, p. 93 ; Baladhuri, Fut:4, pp. 87, 93). .Abu `Ubayd considers the report of Bilal's bild` in Medina dubious,

F.


for, he says that the people of Medina had retained their lands after becoming Muslims, and that there were no ownerless mawat there (Amwaf, p. 282 ; Ya4ya, Khardj, p. 67). The of Hammal at Ma'rib contained a salt mine-this was a natural resource, and the policy of Prophet regarding such resources like water, wells, springs, herbage and fire was that they were held in common. He had there-fore withdrawn this grant of salt. He did not allow any individual to monopolize such natural resources. (Amw47, p. ,282 ;. Baladhuri,

p. 73 ; Abu al-Sunan, III, 175).

120. Schmucker, Untersuchungen, p. 153.

121. Abu 'Ubayd, Amweil, pp. 276-277.

122. Ibid.,. p. 273.

123. Ibid., p. 283.

124. Ibid., pp. 283-284.

125. Ibid., p. 284.

126. Abu Irina, Khan!), pp. 57-58

127. Ibid., pp. 58 and 60.

128. Ibid., p. 60.

129. Above, pp. 253-254.

130. Shaft% Umm, III, 269.

131. (a) Man aline- mawatan fahuwa lahu wa laysa haqgun- one who brings a "dead" land to life it is his, and there is no right in it for a person who wrongfully encroaches upon this revived land by digging a well, or planting a tree (Umm, III, 268-69).

(b) Man ahyd mawatan fa huwa lahu wa `ddiyy !Wahl wa it Basalt& thumma hiya lakum minni-one who brings a "dead" land to life it is his ; all abandoned lands are for God and His Messenger, after that they are for you (Muslims) from me (Prophet). Ibid. Also Abu 'Ubayd, Amwai, 272, 278, 286.

132. Shaft'!, Umm, III, 265-68.

1


133. Ibid., III, 265 ff.

134. Ibid., Ill, 266-67.

135. Mawardi, Ahkam, p. 308.

136. Ibid.

137. A. N. Pollak, "Classification of lands in the Islamic law an. sus technical terms", American Journal of Semitic Languages, 57 (1940),

PP. 50-62.

138. Mawat which formerly belonged to Muslims, forms major controversy. Malik thinks that these can be revived and owned by the Muslims whether the former owners are known or not. Abu Hanifa holds that if the owners are known it is not valid to revive them_ and thus make private estates out of them ; but if they are not known' it is lawful to revive them. Shafer does not allow development of such lands whether the former owners are known or not (Mawardi,

Ahkelm, p. 331).

139. Ibid., p. 337.

140. Ibn Qayyim, Ahk din, 1, 101.

141. Abu WM says that the revenues of the sawaff of the Sawad were used by 'Umar I for good of the Muslims ( fi masallh al-Muslimin).

He never gave any iota' from them. After him, 'Uthman, however, granted estates, believing that these grants would bring more revenues rather than keeping them. uncultivated ; he had also stipulated that the grantee would pay dues of fay'. The grants were therefore of

(jam {lease) ; they were not grants of tamlik. (al-Ahlcam al-Sultaniya, ed. Muhammad Harnid al-Fiqqi, Cairo ; Mustafa al-Babi, 1938,

p.203).

142. Schmucker, Untersuchungen, pp. 150, 153.4.

143. For details of biographies, see Ibn Said, Tabagat, VI, which records the Companions and the Successors who settled in Kufa, pp. 5-16, 22, 41, 67, 121, 131. Vol. VII gives the names Of many who settled in Basra, pp. 5-89.

144. M. von Berchem, La Propriete terriene et P imp& fancier sous Ms

premiers Califes tGeneva 1886), pp. 41 f.

145. C. H. Becker, Islamstudien, 221-222.

146. Ibid., 223. According to Becker the lands in question were :

(a) lands of Kisra and his family, including the Domaniangilter.


(b) maw-4 lands which were of two types : abandoned lands of enemy Who were dead or had fled ; and all waste lands, forests, swamps and marshes etc. (ibid., 222),

147. Abu tbayd, Amwa/, pp. 180-181.

148. Ibid., p. 181. Also see Ibn Hajar, Tandhib, VI, 42.

149. Shafiff, Umm, IV, 193.

150. In pro-muzara'a Hadiths Ibn Masffid appears as a spokesman for mOtayage. Here he is shown to have given rukhsa for appropriating Kharaj-lands. This shows that muzcira'a and the theory of private ownership of land are very closely related.

151. Abel 'Ubayd, Aneal, p. 81. Sarakhsi says that there is no harm if a Muslim pays kharaj-tax for owning Khardj-land because saghar is merely on the khardj (tax) of heads and not on the kharaj of lands. And it is a fact that Ibn Masud, Hasan ibn 'Ali and AV. Hurayra possessed Xharaklands in the Sawad of 'Iraq-they were obviously paying taxes of khareij. Shari! Kitab Siyar al-Kabir, I, 15.

152. Abu Ùbayd, Amwdl, p. 84.

153. Ibid. In this connection, Abu Daffid records two Hadiths on the subject of dukla11 fi and al-Khardj : Mu'adh relates that The Prophet said that one who bound jizya around his neck, the Messenger oP God had nothing to do with him.

AN. al-Darda relates that the Prophet said : "One who ho takes Jizya-land loses his Hijra, and one who takes off saghar from the neck of an infidel and puts into his own neck shows his back to Islam", that is, he renounces Islam (al-Sunan, III, 180).

154. Abu Ùbayd, Amwaf, p. 81. ,

155. Ibn klajar, Tandhib, VIII, 461-465.

156. Abu 'Ubayd, p. 85.

157. Ibid

158. Baladhuri, Futals, p. 273.

159. Abii Ùbayd, Amwaf, pp. 283-4.

160. Baladhuri, Fatah, p. 273. Tabari, Ta'rikh, V,2376.

161. Ibn klajar, Tandhib, X, 350-351.

162. Baladhuri, Fait, p 273.


163. 'Umar II is also reported to have reprehended the alienation of fay'-lands. He wrote to Maymim ibn Mahan : "Prevent those in whose possession is land, from buying this land (which is at present) in their hands, because in this way they will end up seizing the fry' of the Muslims (Abu 'Ubayd, Amwal, p.. 94. Schmucker, Unter-suchungen, p. 159).

164. Schmucker, Untersuchungen, p. 164.

CHAPTER VII

JURISTIC INTERPRETATION OF KHARAJ

AS LEASE OF LAND

Kharitj, 'Ujra and Rent

Associated with the theory of sager and dhull is the juristic conception of kharaj as kira' or lease of land, which is embedded

in the theory of state muzara'a. In this section we shall discuss

the question of whether kharaj, in the juristic sense, connotes lease of land, and by implication, whether the holder of Kharaj-land is a lessee. The question is of basic importance and closely related to the classical theory of muzdra'a and the ideas of

fay', jizya and kharaj. The Kharaf-lands, whether su/b or `anwa, were originally, in theory at least, inalienable fay' of Muslims, as we have seen. The sulk-lands which were basically Kharaj-lands were further classified into milk (possession) of the dhimmis

and milk of the Muslims. The latter category, still inalienable,

was liable to 'ujra, i.e., hire or lease; and the former, as dhimnsa-possession, liable to be sold or leased to the Muslims.'

We also saw how the concept of rukhsa was formulated

inevitably and extended not only to Full/ but also later to `amva lands in the Sawad, Syria, Egypt and other places. We shall see that this development represents an elaborate process of ration-alization of an actual situation of mOtayage by the Fuqahlf. This Islamization of the customary system of tenures and the State practice of muzara'a and lease of land was done by the jurists to bring order and coherence to social relations, to legal and contractual arrangements in the framework of a uniform code of law relating to land. The interpretations of the jurists, as such, lack perspective and context which has created confusion. If all these theories of the jurists are reconstructed and given the necessary historical perspective, their creative role becomes manifest.

• k


Forthe Fuqaha', kharaj is not only a socio-economic and

fiscal problem but a legal and a religio-political issue as well.

It is a problem of /ft/had or interpretative reasoning or discretion.

It is not manses (explicity stated in the Qur'an or the Hadith) like Zakat.2 From the legal, point of view, say the Fugaha', kharaj is associated with payment for the use value of agricultural land.3 Shafi'i clearly states that kharaj al-ard (tax of land) is coterminous with kira' al-and (lease or rent of land).4

For Abu Ùbayd, in the language of the 'Arabs, kharaj means lease, rent, return, income, or simply yield (ghalla): the Àrabs call yield of land, house or slave as kharaj in the sense of income. A Hadith says that income follows responsibility (ann al-kharaja bi al-daman).5 Jizya and kharaj are different in meaning and intention; the former signifies idhlal and saghar (subjection and humiliation) of the unbelievers and constitutes an %ad or compensation for letting them live under protection. Kharaj on the other hand is 'ujra, a hire price of land and a rightful price of the land's services. For this reason, kharaj is subject to ijtiluid.6

The Fuqaha' then transform this literal definition into legal

one ; they say that in the legal terminology kharaj means 'ujra, renting or leasing a thing for a certain hire price.? Abu 'Ubayd

then applies this definition to the ̀ anwa land which is left in the hands of its former dhimmi owners. They become hirers of canwa-fay', and in return pay to the Imam or the Islamic State, Omni] in the same way as a hirer or lease holder of a land or a house pays to its owner its rent (kira').8 Abu 'Ilbayd adds that this was actually done by Ùmar I in Sawdd, where he

gave to the tillers the "white" or bare land for a definite and

known sum of kharaj. This is the perfect example of a person who leases his land for a specific hire price ('ujra musammeit).s" The precise content of the general term of kharaj, as conceived by the Fuqaha', was conditioned by the contemporary economic.

situation. The jurist of that time, in the main, was familiar with the concept of income flowing from landed property in the

form of rents and revenues. The term kharaj, barring its use" as

Juristic Interpretation of Kharaj 287

tribute in the fiscal sense, in the analogical reasoning of the

Fuqaha', could only mean an income (ghalla) or rent of land.

Our jurists, therefore, do not conceive of kharaj as a simple

tax in the modern sense of the word, that is, a compulsory

contribution to the government to defray the expenses incurred

in the common interests of all. The Fuqua' interpret kharaj as

'ujra or hire price of the usufruct of land.'° Abfi Ùbayd cites

a tradition from ShaThi which says that 'Umar I had appointed 'Haman ibn Hunayf for surveying the land of Sawad; on each

fatal) of land he levied one dirhem and one qaftz (a dry measure).

Thus, says Abfi 'Ubayd, Ùmar fixed kharaj on land as 'ujra, for

kharaj is just like rent (innama madhhab al-kharaj madhhab al-kira'). Further, it seems to him that each year ‘Limar renew-

ed the lease of every jarib of land for one dirhem and one qafaz. ‘Umar significantly excluded from this fixed lease the date palms

and other fruit trees for which he did not charge any hire price

(in money). Aba Ùbayd says that this is the legal reasoning of

those who maintain that Sawad was fay' of the Muslims and the

former owners working on them were mere tenants (ùmmai) of

the Muslims; they were cultivating the soil for a fixed and known

rent (kiree rna`lam) and used to keep the rest of the crop for

themselves. He contends that this is valid only in the case of "white" or bare land and not in that of fruit trees, because a

fixed rent (in money) of qabala is not permissible in case of fruits.

In that case it would amount to purchase of fruits before they have ripened or even have actually grown—this type of qabala has been reprehended by the Fuqaher .1'

Furthermore, Abu 'Llbayd thinks that the Hadiths12 related

by Ibn 'Abbas, Ibn Ùmar and Jabir unequivocally state that the

Mu'amala at Khaybar which the Prophet had contracted with the

Jews was mainly a deal of fruit musaqcit: fruit was equally shared

with them13 He concludes the chapter\on kharaj of 'aniva-lands with the following words :-

'Hmar's policy in Sawad appears ambiguous to some

people as far as the problem of fruit trees is concerned. There

is no such confusion in this connection because this


Mteamala (of Khaybar) is like muzdra'a, which the people of Medina call musagat—which is simply a deal of lease for a certain part of the crop. If' there is any produce, they get according to the stipulation. If there is no crop, they get nothing. We do not agree with those who say that in Sawad there was no deal of musdqat which 'Umar did with the tillers but only qabala (lease for a fixed and known thing, i.e., money-rent)... We deny that `Umar had done this.14

Qabala and state muzartra

Qabala was a necessary extension of mitayage, by which, in general, the element of third party or middle man tended to be introduced between the peasantry and the state. These middlemen often were rich landlords and influential men.14a

Qabala or daman is the equivalent of the Byzantine institu-tion'. of /ocotio.25 In the oriental provinces of the ByzantineEmpire viz., Egypt; Palestine, Syria and Mesopotamia, agricultural estates, as we saw before,26 were managed in several ways : by employing agents (actores) and by leasing them on short terms to xontractors (conductores) who then either cultivated the estates themselves or sublet them to the coloni. The conductores are generally called mutaqabbilan in the Muslim iseurces : the term implies people who undertake qabala contracts.17 They pay to the landlord (an individual or state) a fixed rent and make their profit in extra levies and dues from the tenants. They were also rent and tax collectors. Their duty was also to generally supervise the estates.

The imperial estates were in the main contracted for exploi-tation and use. Their function as middle men between the agents of the landlords (procuratores) and the tenants from whom they were entitled to collect fixed proportions of their produce and fixed amounts of services (corvee) continued on the imperial and private estates.18 It may easily be surmised that the same must also be true of the Sisanian Empire where the practice of gabala was no less common.


Qabala is used by the Fuqaha' in two sense, in one sense, it is

equivalent of that form of tenancy in which landrord gets a fixed

share of the crop, a fixed sum of money, in kind or both;14 it is

thus almost synonymous with muzara`a and kird' al-ard (lease of

land).20 Secondly, qabala is used in the sense of tax-farming in which a tax-farmer guarantees and pays a lumpsum to. the State and obtains the right to collect rents and revenues from the contracted land; he keeps the difference between the two rents.

This has been termed usury by Abu 'Ubayd,21 possibly because

it is tantamount' to an unearned increment and a gharar (aleatory)

transaction:involving fruit which according to him can be validly

contracted only in a contract of musaqat. Probably it is not

because fruit is involved—since, qabala is not restricted to fruit—

but because the tax-farmer oppresses the tillers. It is reported

that Ibn Ibn 'Abbas, and Sa'id ibn Jubayr, the famous

Successor ('d. 95/713-4), all declared that such qabithit were

invalid.22 particular reason for the disapproval of qabala

tenancy (as attributed to Said ibn Jubayr) is that private tenancy

may include tillers (cutup on the land who generally do not get

good treatment on such qabalat.23

It seems that qabala, in the sense of tax-farming, was widely

practised by the 'Abbasids for solving financial problems of the State : they took to tax-farming to cater to the growing demands of the administration and the army. This was also a factor in the eventual social and economic ruin of the Empire.24 It is

almost certain that tax-farming, as the qabeila-?adi ths point out,

was commonly practised under the early Umayyads and the 'Abbasids. As the disapproiial of this practice by Ibn 'Umar (d. 73 or 74/693-4); Ibn 'Abbas (d. 68/687-8), and Sa'id ibn Jubayr shows, this practice had become widespread in the last decades of the first century. This was the period

when the concept of the inalienable 'anwa fay' of the Muslims

had already been transformed into the State fay' by the Umayyads-

in the sense that the Umma was no more owner of land; it was

now controlled by the monarchy, a dynastic autocracy. The

Muslims were now taking the sullt-fay' (formerly in the possession

of dhitnmis) on tax-farming, and rent, which was euphemistically


termed buying of Kharaj-land as Ibn Mas'ad had taken a Kharaj-land from a dihqan on the condition that Ibn Mas'iid (d. 32 or 33/653-4) would take the lease of land (iktireV) of the dihqan and the land would gradually become personal property of Ibn Masud instead of buying it iramediately.26 Shathi (d.I10/728-9) says that he does not think that buying of Kharaj-land is ribs but nor does he recommend it.26

Actually the qaba/a-tenancies continued after the end of

the Byzantine and Salsanian Empires. It is therefore reasonable

to assume that the Umayyads made use of this fiscally important

institution. Under the 'Abbasids, as Lokkegaard has shown,

their use became widespread and ultimately proved fatal for the State. Therefore, it is probable that the muzara'a interpreta-tion og kharaj, that is, the theory that rent or lease of land is analogous to kharaj was first elaborated by the Fuqaha' in the Umayyad period. It is true that the principle of rukhsa, in the general sense, and the practice of discretionary judgment by the

Companions and the Successors had greatly and benevolently

modified the general ban in exceptional cases, its systematic elaboration was carefully worked out under the Umayyads for

financial reasons and when the Muslims had adequately develop-

ed their legal concepts and institutions with all their multifa-riousness.

From our discussion it also follows that in the beginning, since Kharaj-1 and was an inalienable fay' of the Muslims, or in other words, when the real owner was the corporate body of the Umma—despite the vagueness of the theory of ownership—lease of Kharaj-lands (and bence the practice of muzarrea) was a mark of dhull and saghar. This was obviously for two reasons : first, the lands were fay' of the Muslims. Second, buying of Kharaj land by the Muslims would have reduced state revenues, which means that the stipends of the Muslims and their families would have been curtailed.27

The practice of muzaraga was originally limited to dhinunis, that is, tenants were non-Muslims' as this was more or less a

result of the conquests. At Khaybar the Jews had capitulated


and became tillers of the soil. Therefore, muzarcea as a state policy

originated with the non-Muslim conquered people.28 After

these dhiaanis had become Muslims they continued in the same

status as far as muzara'a was concerned, for they had to pay to

the State the rent of land which was in their possession. As long

as non-Muslims were subject to taxation, the spread of Islam

"bore heavily on the Treasury". 29 A diltqcina from Nahr al-

Malik became Muslim. She retained her land as her property,

but, it is reported that she was asked by 'Umar I to pay kharaj

(i.e., rent) of the land.30 'Ali had also made a dihqan pay rent

on his land (but not jizya), because he had stated that as the

Kharaj-land belonged to the Muslims its rent could not be shelved

in any case.31

From the traditions of this genre, some jurists like Abu

Hanifa have inferred (obviously basing his conclusion on the

opinion of Ibn 'Abbas who said that Zakat and kharaj could not

be combined on a Muslim)32 that those Muslims, who have

Kharaj-lands in their hands will not pay any ùshr because ‘Umar

I and 'Ali had not asked the dihqdns who had become Muslims

that they should pay ùshr.33 Abli 'Ubayd does not agree with

Abu TIanifa; he says that if 'Umar and 'All did not mention in

particular the tax of ̀ ushr it is not a proof that it was not paid

by the neo-Muslims. Ùshr is an obligation on the Muslims.

The have to pay it (on the products) of their lands for the

peohle of sadaqa who deserve it. When the Muslims become

owners °glands (dukhnluhum fi al-ardin) it is not necessary to

make the stipulation that they have to pay ùshr, for the Prophet

(when he declared that any person who brings a "dead" land

to life becomes its owner), did not specify that such a Muslim

would pay ùshr. Can anyone say that he will not pay any ùshr?

Such is the case with grants of land (igta's)

According to the injunctions of God and Sunna of the

Prophet, Abii 'T.Jbayd argues, every Muslim ought to pay the

dues of his land whether this is explicitly mentioned or not.

The land of kharaj is like any ordinary land; if a Muslim takes

'land on rent from its owner and puts it to cultivation he has to


pay its rent to the owner (for the use of the plane land). In addition to this he has to pay Mshr on the agricultural products—and that is' the obligatory Zakat. Thus Zakat and 'ushr are both dues, and both are spent on different classes of Muslims. The dues of .kharaj are spent on , the stipends of the muqiitila (fighters) and on the food allowances (arzaq) of their families. Zakat, on the other hand, is sadaqa which is 'spent on the eight categories of other Muslims. These two types of dues are

exclusive to each other and are not spent on the people who do not deserve.34 This viewpoint of Abu 'Ubayd is based on numerous traditions from Ùmar II 35 Malik Thu Anas, Awzari,

Ibn AM Layla, al-Layth ibn Sa'd, Ibn AM Dhi'b, and cAbd

Allah Ibn. Mubarak—all were of the opinion that a neo-Muslim on the Kharaj-land had to pay both kharaj (as simple rent of land)i and 'ushr. (as sadaqa or Zakat) on the crop of this land.36

The inherent difficulty and the apparent paradox in this

problem are clearly seen by Abii 4anifa who perceives the plight , of neo-Muslim cultivators as they have to pay not only

rent (usually one half or one third of the entire crop as in muzaraà), but also 'us& (one tenth.of the crop). The plight of

the Muslim cultivators who had to pay these imposts can well be

imagined. This seems to be the condition of the neo-Muslim peasantry working- on Kharciplands which was formerly conquered and subdued. The tenants thus tended to be attached to the soil just like their ancestors.

Abu 'Ubayd has another explanation for this sordid

phenomenon : he says that the real motive for combining rent of land and Zakat for the Muslims is to make them detest buying of Khardj-lands, as a tradition of Ibn Àbbas suggests.37 This makes sense if we suppose ithat the Kharaj-land was inalienable fay' of the Muslims. Ibn( Qayyim observes that buying of

Kharakland by the Musliths was reprehended by the Companions

because this would have also resulted in decreased revenues.38 It may be objected that if the Kharaj-land was common property of the Muslims its purchase by individual Muslims must itself be null and void ab initio, rather than reprehensible. Under Ùmar


I, this purchase was strictly forbidden. But gradually when the

socio-economic relations became more complex, the juristic

principle of rukhsa, or equity was systematically developed which

benevolently modified this ban on alienation.

Another similar question was also raised by the jurists ; If

anyone on the sigh-land becomes. Muslim, will the land in his

possession become cushr or will it still be a Kharaj-land? There

are basically two juristic opinions on this problem. According

to the first (which is based on the policy of Ùmar ibn 'Abd

al-cAziz), such a Muslim is not owner of this Kharaj-land because

it is fay' of the Muslims. Ibn Shihab al-Zuhri says that because

such a Muslim did not become Muslim at the beginning; the

land will still belong to the category of kharaj. This means that

he will continue working on this land and will pay rent to the

state." Zuhri's opinion reflects the real situation obtaining

under the Umayyads. The fay' of the Muslims was now trans-

formed into fay' of the state. According to the principle of

state muzaraga, this neo-Muslim—still a sharecropper—will pay

to the state rent (kharaj) of land, “because his land is still part

of the fay' of the Muslims; this land will' not, of course, be

seized (he will not be evicted) nor will cushr be taken from him

in lieu of this rent of land"." This opinion was also shared by

the Egyptian Successor al-Layth Ibn Satd who relates from

Ùmar II who said that if any person from among the people

who had made peace for a fixed sum of jizya (i.e., fixed sum of

kharaj/rent) became Muslim, the land which was in his pOssession

would not be taken out of the total land (in this category). It

will continue to belong to these people, i.e., local peaSant

community. 41

Malik, on the other hand, maintains that the neo-Muslim

will rightfully retain the land in his possession as his own

(fa huwa ahatigu bi atylihi).42 Ibn Sirin was also of the same

opinion. From this general principle Ibn Sirin and Malik

inferred that theie was no harm in buying sulk-land as it was

the property of those former owners who had originally_.-made

the sail,. This also means, says Abu ‘Ubayd, that if anyone of


them becomes Muslim his land becomes 'ushri. Shaybani says that Abn. Hanifa differed with Malik on this point. He used to say that if any person bebomes Muslim on the sulk-land, or if

any Muslim buys land from this category of sully., the original treaty of sulk will! remain intact, For Abu 'Ubayd this neo-Muslim retains this land as an cushr-land.43

Thus a convert on the su/h-land continues to pay the rent of his land as he is now simply a client tenant of the state. If he

leaves the land, his former co-religionists will be responsible for the total rent (kharaj) which was fixed at the time of the sulk-treaty. Theland in possession of the convert will not be changed into ‘ushr-land because there is no sadaqa on the dhimmis.44 A tradition says that some people of sulk-land in Bawad, who had become Muslims, pleaded that khardj (rent) on their lands must be removed and sadaqa (Mshr ) be accepted instead. `Umar II decreed that the Kharaj-land was the most stable source for the Muslims. which God had assigned as fay' for them; he said that if the converts had their former co-religionists on the land they would be held responsible for the total sum of khardj-rent. In other words, the convert either continues to pay the rent of land, that is, he remains a share-

-cropper on the state land, of leaves this land to those of his former co-religionists who could pay the rent. This also proves that 'Umar II considered the sulk ,land as fay' of the Muslims; and had forbidden its former owners from selling it—so much so that he had prohibited the Muslims from buying any agricultural instruments from the dhimmis, for he thought that this would render them incapable of cultivating the soil and thus would destroy the kharaj.45 This also proves that `Umar II took measures against transfer of state land to private-hands by prohibiting the sale of KhardJ-lands. - (He also abolished the distribution of private estates, qaldT). However if any neo-Muslim stayed on this land, rent was collected from him as before.46 The real problem for the state was to ensure that revenues and rents froin the state lands were regularly coming to the state Treasury, because the political, economic and legal superstructure continued to be based, as before, on the revenues

Juristic Interpretation of Khardl 295

paid by the peasantry.

We must now consider AO Yfisuf's analysis of the practices of muqdsama and qabdla in the histbrical context of the 'Abbasid agrarian regime. He seeks to demonstrate the various elements that have gone into the making up of the material of the tenancy-laws. His main concern here, being a judge and a jurisconsuIt, is to describe the legal arrangements as he finds them. This will show that this historical material found to exist in the law of tenure cannot be understood without compre-hending its antecedents and the general social and economic

evolution of, the period.

The Islamic laws of tenure of the classical period came into being as a natural result of the conquered landed property—right from the conquest of Khaybar in 7/628-9 and the territor-

ial conquests outside Arabia during the early Caliphate. This conquered land fundamentally belonged to the members of the

conquering Umma. The inevitable consequence of this develop-.

ment was dhimma (protection) of the non-Muslim communities,0

an incidence of conquest, which in the economic terminology was enserfment of the conquered peasants who, particularly under the Umayyads and 'Abbasids, for the reasons of state

finances, were more or less attached to the land they cultivated. These customary practices and institutions were the main analy-tical bricks out of which the classical theory of muzarda was

built. In the juristic formulations this theory and its other conceptual expansions and corollaries were of course founded

on the original Grundnorm of the Sharra. This will be dis-

cussed in full in the next chapter.

Abu Ydsuf on Muqdsama and Qabala

Muqiisama was a common tenancy practice in the Byzantine

and the Sasinian provinces, to which we briefly referred previou-sly's According to this a certain portion of the produce of

land was levied as land tax or rent of land.49 Under the chapter

"What should be done in Sawad", Abu The, dilating on the

subject of munsanta, tells Harlan al-Rashid that there are two

41

296 Landlord and Peasant in Early Islam I, _ Juristic Interpretation of Kharaj 297

methods by which kharaj may be levied and collected : misa4a and mugasama.50 He advises him that contracts of =mamma must be made with the peasants of Sawad for wheat and barley on the basis of two fifths of the crop (40 per cent) if it is natural-ly irrigated. The crops which are grown on the lands irrigated by artificial means like wells, must be charged three tenths of the crop (30 per cent). Date-palms, vineyards, and orchards pay one third of the produce, and tax on the summer crops must be one fourth of the crop.53

For private estates (gager) of Muslims, mugasama-rent is one tenth for naturally irrigated land and one twentieth for the artificially irrigated land. The sadaga and 'us& on the produce of this ùshr land according to the Sunna is one tenth for naturally irrigated land, and one twentieth for the artificially irrigated land. All this, says Abu Yfisuf, is unanimously agreed upon by the Hanafite FugahcV .52 In connection with all these taxes, continues Abu. Yfisuf, nothing should be taken on the basis of a guess or on a valuation based on market prices (which fluctuate). The valuation should be based on a just appraisal, not overcharging the tax-payer not damaging the authorities : what is due must be taken in kind, but if convenient for both sides the yield may be sold and its price divided proportionally between the taxpayer and the authorities.53

He bases the institution of mugasama on the model of Khaybar, where, as we have already seen, as interpreted by the Fugalia', the Prophet gave land to the Khaybarite tenants for half of the produce.54 Abu Yfisuf quotes all the important Muàmala-Hadiths to systematically rationalize this continuing State practice. In other words, according to him this mugasama is analogous to the celebrated mdamala of musagatimuzara'at kira' al-ard.55

This notion of mugasama or rent, rationalized on the model of Khaybar, underlines the reasonableness, certainty and con-tinuity of the customary economic and legal arrangements already existing in the society. Thus the element of pre-Islamic custom of mugasama is now being elaborated and assimilated to

the growing substance of Islamic land laws. In his very impor-tant task, Abu Yusuf first studies and analyses the customary practice of 'Iraq and then applies the SharVa principle to inter-

pret this mass of material. Custom, therefore, being the raw material of the Islamic land laws* is the starting point for Abu

Yfisuf. The juristic interpretation of the Fugalite is another

source which moulds the custom on Islamic lines.

The classical doctrine of muzara'a therefore functidns at two planes : it rationalizes, elaborates, modifies and Islamizes different customary and administrative practices and concepts of mitayage. Second, which is ,a corollary of the first, this elaborately systematized law of tenancy, as an essential part of the general law of obligations, seeks to govern the legal relation-ships between landlord and tenants : it tends to define their mutual rights and duties pertaining to the exploitation of land resources.

This theory of lchar4j, that is, of rent and muzarota, as we mentioned earlier, according to Mawardi is not based on any explicit text of the Qur'an (as is jizya), but is the result of juristic interpretation (ijtihad).56 This statement of Mawardi is only true in as much as it theoretically rules out the part played by the Byzantine and Sasanian customs which formed the raw material for the jurists' interpretations: The practice of mugasama, as Lokkegaard has shown, was a common method employed by the Sasanians for levying land taxes on the Crown land, where taxes were not levied as per unit area. This arrangement was retained in the Islamic Empire. The land tax on the Crown lands was considered by the Sasanians as a kind of rent (tasq).57 This was the idea, says Lokkegaard, which the Àbbasids further developed and extended even to allodial lands:58 This shows that the system of mugasama continued into the Empire.

According to Georg Ostrogorsky, on -the Byzantine state lands rent was also called a tax. With the development of money economy in the late Byzantine Empire custom for paying

298 Landlord and Peasant in Early Islam Juristic Interpretation of Kharaj 299

rent in money developed. This meant, he says, that the terms varied very much. When State land was leaSed the rent (rcakrou) was treated as a tax and there was practically no difference between the government tax and the rent.59

Coming back to Abu Yusuf, we shall now discuss his concep-

tion of landed property. For him land is like wealth, charac-

teristic of the growth of individual ownership which is a mark

of the strength of the Umma ; this individual ownership of

land always requires improvement and investment. His essential

point is that the State should encourage the development of

individual landed property in every possible way but in accor-dance with the larger interests of Islam. In connection with

grants of ig(a` he says, "land is like wealth (ma/ or res in corn-

mercio). The Imam or the State may grant it to a person who

can use it in a productive way which benefits other Muslims

too".60

This concept of land as wealth is characteristic of the period

in which the Fuqaha' worked out the theories of muzara'a and

mudaraba.61 This, together with the concept of tax as rent of

land have significantly determined and defined the general

features and form of the law of maze-tare'. Another remark must be made in passing that Abu Yusuf gives absolute power

to the ruler in fiscal matters : he may increase or decrease the

° imposts on the peasants of the Kharaj-land according to their

capacity to pay ; he has the power to change the levy which

tends to ruin the peasants whether it is mugasama of the craps,

or misaba of per unit of area. He justifies this on the practice

of `Umar who had levied on every jarib, irrigated (`amir) or

non-irrigated (ghamir) one qafiz and one dirhem ; and on one

rarib of date palms eight dirhems...

‘Umar I wrote to Ya`la ibn Umayya in Najran, continues

Abu Yusuf, to share the crop with the tenants on one third and

two thirds basis. These examples from Sawad and Najran

prove that the public authorities have the right to impose on

each land the tax it can pay. The Prophet when conquering

Khaybar did not ° impose a fixed money tax on its lands, but

gave it to the Jews on museiqat for half of the pro duce.62

This evidently shows that muzara'a was developed by the Umayyads and after them by the 'Abbasids as an administrative

principle of the State. As the peasantry was the main source

of State revenues, muzara'a tended to become an elaborate sys-

tem and mechanism which sustained the economic and social regimes—hence the absolute fiscal power of the ruler to regulate

the financial structure of the State.

Nevertheless, the Fuqaha' try to qualify this absolute power

of the ruler in financial matters. Abu Yusuf particularly urges on Harlin to give up the policy of contracting the lands of Sawad and other provinces for qabeila, as in these contracts

of tax-farming the surplus which accrues to the tax-farmer

causes the ruin of the tillers working on the Kharaj-

lands. These tenants are burdened with illegal imposts which

result in their impoverishment and total bankruptcy.

Thus Abu Yusuf brings his juridical logic to bear upon

the actual practices and says that this happens because the

qabala-holder is bent upon making his contract a success. As

a result of this policy lands are abandoned by the tenants and they become poor. Peasants perish but the tax-farmer is least

concerned with their misery ; his only care is how to augment his profit several fold—and this is not possible without the

atrocities he commits on the poor peasants ; whereas God com-

mands to take only cafw (surplus over and above the basic

needs) from the peasants.63 Abfi Yusuf personally detests

qabella for the reason that the tax-farmer imposes on the farmers

illegal imposts which they cannot pay ; this destroys not only

the peasantry but also revenues of the State which come from

this source. He declares that this corruption and extortion

have been forbidden by the Qur'es.64 He considers the policy

of heavy taxation on the peasantry of State (Kharaj) lands a

glaring example of exploitation which is neither legal nor

permissible.65

This shows that under the 'Abbasids -extortion and

exploitation of the peasants by the tax-farmers (who were also

powerful landlords themselves) had become a grave problem.


For this reason Abu Yiisuf asks -Harlin to stop giving lands on qabdla- contracts. The conditions had deteriorated to such an extent that Abu Yfisuf asks the Caliph to send with the tax- collector an army from the Divan, "if the farmers on the Khardj- lands say that they themselves would directly give guarantee of

paying the tax to the tax-collector the dues which the latter never imposes according to the official rate. The news has reached me that with the tax collector and the wall (administrator), there happen to be a retinue of persons who have access to and protection of this administrator—they are not persons of sound character. The administrator takes help from them and directs them to his revenue districts with the required rate schedules. They do not

collect these rates which are (officially) given to them and do not do justice to the tax payers. Their method (madh-hab) is to seize byway of kharaj, the wealth and stock of the peasants. Worst of all, they seize their property by extortion, exploitation and violence. Then, as, it is a custom, the administrator and his retinue sojourn in a vil-lage. They dispossess the farmers and burden them beyond their capacity to pay. ,The administrator fixes kharaj much more than what is officially due from the peasants. If a peasant is unable to pay such exorbitant tax he is beaten to the point of death. His cattle is driven off. As much as it is possible for the administrator, he seizes from the weak sharecroppers (dugaff al-muzariùn) even by force and violence (he carries away almost everything). This

exploitation is detrimental to the peasantry and a loss for the fay'—not to speak of the sin and crime which the tax-farmers perpetuate in this case.66

Abfi Yfisuf tells Harfin to forbid such malpractices so that the taxes are properly 'collected without interference from the middlemen and tax-farmers.67 This also shows that the charac-; teristic features of the system of production based on mitayage and tax-farming---both essentially different - in degree but not in nature, were a subject peasantry, in general, under obligation based on law and custom to provide a certain share of its


produce and labour to the benefit of the ruling classes. From this point of view the economic subjection and social compulsion of

the peasantry by the state, middle men, and tax-farmers in the

medieval Muslim society was a symptom rather than a cause

of the general social malaise and corruption into which the Àbbasid regime had gradually sunk.

We will now conclude our discussion with the following observations. The important bases of Islamic land laws, accord-

ing to the Fuqahc7', such as Abfi Yfisuf, are : first, customary concepts and practices which continued from the agrarian

regimes of the Byzantine and Sasanian Empires, and the pre- Islamic primitive tenures. Second, the precedent of the

Prophetic Sunna, in particular the Prophet's Mirdma/a deal with the peasants of Khaybar. Third, the general principle of

rukhsa or exception to the general ban on private tenures. Fourth, the juristic interpretation and systematization elaborately-

worked out by the Fuqahcr In other words, custom is the raw

material, Swine, the Grundnorm and the expert opinion of the

Fugahr, who discover and elaborate this land law from the custom embodied in the existing legal and economic relation-

ships, form thelechnique and method by which these reasonable customary social arrangements are Islamized to conform to the

ethic of the Sharià. This does not mean that the economic and legal structure is one-sidedly moulded by an abstract ideological

superstructure. This is an interaction between the juridical and sociological factors,. The law of Ian& tenure, in the Islamic context, evolved spontaneously. In this process it

came to include elements of pre-Islamic origin as well as the administrative practices of the UmaYyads and the Àbbasids which were fundamentally based On the institutions and theories

of the fornier pre- Islamic Empires.

' The role of the Fugand' in this 'development is primary.

They discover the emerging legal and " economic relations,

categories and patterns, formulate them into consistent concepts and define in clear terms the general rules. These concepts are

then cast into the Sharl'a norm and moulded. The principle


of rukhsa acts as the benevolent exception to the rigid and harsh formality of the general law (of ban on motayage). It represents the principle of progress which recognizes the reality of social

change without which no society can advance and prosper, for

law has to go hand in hand with the social change. The four

sources mentioned above form the spring from which the

Islamic land laws- have emanated : they are the bases on which the whole superstructure of the classical theory of muzeitra'a has been erected. The following chapter will concentrate on the

development of the substantive land law of muzarda in the theoretical formulations of the Fugahir

303

NOTES

1. Abu 'Ubayd, Amwal, p. 78. Shafiri, Umm, IV, 193. Mawardi, Ahlcam,

p. 256. Schmucker, Untersuehungen, p. 167.

2. Mawardi, )4h/cam, p. 246. Ibn Qayyim says that Jizya is based on

Nan (explicit text) and kharaj is established by interpretative reason-

ing of Unbar?. (Ahkarn,l, 100.)

3. Ibn Mangnr defines kharaj as ghalla (income). "The kharaj of the

land of fay' which 'Umar I levied in Sawad has also been called.kharaf

or ghalla. The jirya imposed on the heads of the dhimmis is also

called kharaj, that is, income or ghalla is made compulsory f6r them

(Lisa'', II, 252).

4. Shafici, Umm, III, 251 ; Abu Ynsuf, al-Radd, p. 325. Shaybani gives

an hypothetical example of an harbi (enemy) who enters Dar al-Islam,

abode of Islam, after he has been ensured security of life, and takes

a piece of Kharaj land on lease (ista'jara). He then cultivates it,

and pays kharaj as possessor (sahib) while the actual tiller (sari')

will not pay anything because kharaj is a quid pro quo of manfa'a.

This utility is actually reaped by this possessor (rabb a(-ara), and

for this gain or usufruct he pays kharaj. Sarakhsi, Sharh Kitab Siyar

al-Kabir, V, 2246.

5. AV) Ùbayd, Amwal, p. 73.

6. Adab, p. 221. Ibn Qayyim, Ahkam, I, 126.

7. An `Libayd, Amwal, is. 73. Shafi'i, Umm, IV, 193.

8. Abu Ùbayd, Amwal, p. 74.

9. Ibid., p. 73.

10. Shafiri, Umm, III, 251. Lokkegaard has shown that kharaj ujra was

conceived by the Sksanians as hire (Taxation, 126). Becker says,

"dass nach islamischer Anschauung ùshr-land strenggenommen

Eigentum 'ist, kharai-land abet immer nur Besitz ; denn der 'ashy ist

eine Steuer, kharaj eM Pachtzins (rent). Islamstudien, I, 226

11. AK 'Ubayd, Anzwal, pp. 69-70. Adab, pp: 218-219.

AM) 'Ubayd's definition of kharaj in terms of lease of land, it must

be noted, is clearly influenced by the hypotheses of maiiki and


Shafi'l schools of law. Abu Ùbayd, who subscribes to the doctrine of these schools, formulates this issue in Maliki terms as he takes into consideration musoqdt and money rents for fruit trees and 'white' or bare land respectively. Obviously he tries to bring the historical facts in conformity with the Maliki doctrines.

12. The Hadiths are as follows :

(a) I1M 'Abbas said that the Prophet gave Khaybar---Its land and trees-to its people for muqasama of fifty fifty.

(b)

(c)

Ion Òmar said that the Prophet made the contract of Mu`cimala with the people of IC.hayber for half of the produce of fruit and grain.

Mir stated that Ibn Rawaha assessed (produce of IChaybar) as 40,000 camel loads. He claimed that when Ibn Rawaha let them chose their share, they selected fruit. In all, they had 20,000 camel loads as their share (Amwal, 76).

13. Ibid.

14. Ibid.

I4a. 'Abd al-Razzaq, al-Mayannaf, VII, 148.


16. See above, p. 164.

17. Abu Yastif, Kharaj, p. 60. Shafiq, Umm, ILI, 240

18. A. H. M. Jones, Roman Empire, II, 792. N. G. L. Hammond and H. H. Scullard, editors, The Oxford Classical Dictionary, 2nd ed. (Oxford : Clarendon Press, 1970), p. 277.

19. Abu 'Ubayd, Amwol, p. 74. Literally qabala is derived from gabil (and clarmin from 4amin) meaning one who gives surety or guarantee to do something. Qabala is a verbal noun which means surety or guarantee on which the right to tax-farming depends. This implies that the tax-farmer must furnish surety in landed property or 'in a pledge (Lokkegaard, Taxat(on, p. 94). Qabbaltu aframila aWamala therefore means "I took from the -tax collector the guarantee for advance payment of rent (in a lumpsum)". In the Hadith of. Ibn 'Abbas ("Beware of the qabalat, for they are humiliating and the


excess, i.e., the difference in the two rates, is ribs, usury") that if

more is collected in taxes from the tillers than what they pay is

qabala. This is ribs al-fa41. However, if he guarantees a certain sum

and the cultivates, there is no harm. (Ibn ManZar, Lisan, Xi, 544 ;

Firtizabadi, Qamus, IV, 34.

20. See Abu Ytisuf, Kharaj, p. 51, where he records the Hadith related by

Abu Ja'far which terms the. Mu'amala of Khaybar as qatullat

21. AN; 'Ubayd, Armen , p. 70.

22. Ibid. Following his Maliki doctrine of Illusaqat, Abu `Gbayd

maintains that the real reason for disapproving of this type of qabala

is that the transaction (in the future values) of fruit which has not yet ripened and which is not specifically known, is an aleatory sale.

As regards the mutarnala or )n1tayage for one third or one fourth

of the produce, and lease of land (of "white" or bare land), they are

free from qabrilcit and do not enter into these two types of tenancy-- these were therefore allowed as exceptions to the general rule.

It is not' known that the Muslims ever differed on the reprehension of qabaldt.. (Ibid., p. 71).

23. Ibid., p. 70. In the tradition of. Seld ibn Jubayr, 'Ida/ (sing. ̀ ill)

must be taken' in the general sense of serf-cultivators. It seems that the cultivators and serf-tenants of Persian origin were con-'

temptuously called 'u/dj. Àbd al-Rahman Taleir Sarati thinks that

`tda.f were ghayr Muslim fajami, i.e., non-Muslim Persian (non-Arabs) which is not suggested by the text of the tradition. Kialb al-

Amwal (Urdu trans. Islamabad ; Islamic Research Institute, 1968),

I, 201, D. C. Dennett translates 'ulilf as peasants (Conversion, p. 20).

F. Lokkegaard correctly interprets the term as serfs (Taxation, p. 9).


25. Abu tbayd, Arnivell, p. 78.

26. Ibid., p. 79.

27. Ibid., p. 79-80. Bert Oayyim, Aigain, I, 105.

28. Bukhari, sahib, kitab al-shirka, balm musharakati wa al-

Mushrikin.

29. W. Berthold, "Caliph 'Omar II", p. 87:

30. Abu tbayd, Amwdi, p. 87.

31. Ibid.

ll


32. Ibid., p. 89.

33. Ibid., p. 87.

34. Ibid., pp. 87-88.

35. Ibid., pp. 88-89.

36. Ibid., Baladhuri, Flaw?, p. 446. To another hypothetical question whether a dhimmi, who has an 'ushr land pays to •the State all these taxes, there are four possible answers : Abu Hanifa says that this land becomes Kharaj-land, and the dhimmi will pay kharaj. According to Abii Yasuf ̀ ushr will be doubled for the dhimmi. Sufyan al-Thawri holds that this land will remain an ùshr land. Malik says that the dhimmi will not pay anything because sadaqa is Zakat and it is paid by the Muslims only. Jizya is on the heads of the dhimmis as saghar besides the trade taxes. He also thinks that this land must be bought from the dhimmis rather than rented since otherwise this would mean abolishing the sadaqa (for the Muslims). Hasan ibn Salih also says that . dhimmi will pay neither ùshr nor kharaj. Abu Ùbayd follows Malik in thinking that there is no kharaj on the dhimmi as he owns the land. Rent or kharaj is paid • by a person who works on others' lands. We have seen, says Abu Ìlbayd, that kharaj is ghalla and kira'. He will not pay 'ashy because an unbeliever does not pay sadaqa (Abu 'Ubayd, Amwdl, p. 89).

37, Ibn 'Abbas said : I do not 'like that sadaqa and jizya (i.e., kharajl rent) be combined on a (neo-) Muslim (Ibid., p. 89).

38. Ibn Qayyim Ablcam, I, 103..

39. W. Barthold, "Caliph 'Omar II", p, 88.

40. Abil 'Ubayd, Amw41, p. 155. Also see Y'aliya. ibn Adam, Kheraj, pp. 44-45, where it is reported that 'Omar II asked one of his gover-nors to give Sofiya or State land on muzerdir to check land from falling into private hands.

Juristic Interpretation of Charrij 307

47. For a general 'introduction, see Claude Cabal, "Dhimma",

Encyclopaedia of Islam, 2nd ed. 1971, pp. 227-231.

48. See above pp. 169-110.

49. Yaqfit, Miejam, III, 175, 177 B. Lokkegaard, Taxation, pp. 58, 113,

125.

50, Abu YUsuf, Kharaj, pp. 27-28. A. Ben Shemesh, Taxation in Islam

III, (Leiden : E. J, Brill, 1969), 100 fr,

51. Abu Yasuf, Kharaj, p. 29, A. Ben Shemesh, Taxation III, 101.


53. Ibid., A./Ben Shemesh Taxation, III, 101. There are several methods,

. says M. J. De Goeje, for assessing land for purposes of taxation, as

explained by the Muslim geographers :

(a) al-Muqataà, according to which every year a certain sum of money is paid as stipulated according to a contract whether the

lands ate cultivated or not, or whether population increases or

decreases.

(b) Mischa is the method of leslying tax per unit of area. The amount

of tribute depends on the nature of land, the mode of irrigation, the nature of the produce and nearness to ports and markets.

This method of assessment was used oy tmar I in 'Iraq

(Baladhuri, Futilib pp. 269 ff ; Abu Ùbayd, Amna!, p, 68;

Yahya, Kharaj, p. 9.). 'Games model was also followed in other

parts, such as in most of Persia and Armenia (Baladhuri,

p. 21). The name of misdha shows that this depends only on the

measurement of land.

41. Ibid.

42. Ibid., pp. 155-156.

43. Ibid., p. 156.

44. Ibid., p. 93.

45. Yahya, Kharaj, p. 44. Abu Ùbayd, Amwdl, p. 94.

46. Yahya, Kharaj, pp. 33, 44 Berthold, "Caliph Ùmar II", pp. 87-88.

(cl Mebasema tax is paid not according to the area of the land but

according to the produce, being a certain share of the crop. By contract, stipulation is made whether the tenant will pay one tenth

one third or one fifth etc This method was substituted by

Caliph Mandi (1581775-1691795) for the method of mrseiba which

was instituted by 'limas I (Baladhuri, Fatah, p. 272), Further

still, continues De Goeje, it is called mtmasama in case the land,

is confiscated for the Treasury and the residents may become

tenants (for wages) pro rata merced terram colentes, muzarrdn.

(Baladhuri, Futah, pp. 27, 78, 371). De Goeje, Glossary to

Baladhurrs Fetal!, pp. 86-87. •

308 Landlord and Peasant in -Early Islam

It should be noted that according to the mugasama-Hadiths the Mu'antalaed Khaybar is also interpreted as mugasama (Abu 'Ubayd, Amwal, p. 76 : Bukhdri, Sahih, kitab al-mitzarda ; Muslim, Sakih, kitab al-buys',). Even Abu `Ubayd sees in misaha-tax fixed rent of money according to the Malik/ doctrine of lease of land against a fixed money rent, or idra (Amman, pp. 68-76). This means that for the Funahcp, misaha and mugasama are all rents of land whether against money or in kind. In the later period of Manger's Caliphate

(1361754-158/775) the peasants asked him to reintroduce the method of mugasama which was then employed by him and by his successors. On the- lands of the peasantry misaha was the method of assessment most commonly employed until the reign of Mandi (Baladhuri, Fatah, p. 272 ; Lokkegaard, Taxation, p. 115).

54. Above pp. 51 if.

55. Abu Yfisuf, Kharat pp, 50-51.

56. IVIdwardi, Agicrim, p. - 246.

57. Abfl tbayd, Amwal, p, 68. Lokkegaard, Taxation, pp. 58, 113, 125. A. Ben Shemesh observes that the tax of tase was levied on the State lands, it was collected in kind, usually half of the crop. It can

be traced to the times of Babylonian Talmud, which was complied during the Persian rule, preceding the Muslim conquest. The sources

in the Talmud are from the 3rd century A.D. so that nothing Islamic can be attributed to this tax. Taxation, III, 25. Also see Schmucker,

Untersuchungen, p. 158.

58. Lokkegaard, Taxatdon, ibid.

59. Georg Ostrogorsky, "Agrarian Conditions in the late Roman Empire, The. Cambridge Economic History of Europe, 1 (1966), p. 211.

60. Abil Yfisuf, Kharat pp. 60-61.

61. "Mazara'a and in usagat are both permissible and valid in law", says Abfi Yilsuf, "because I think they are of the same category and genus as the capital involved ildbusinep partnership of muaaraba...for land is of the same nature in so far as bare land (and bayda') and orchards are concerned (Kharaj, p. 88). ,

62. Ibid., pp. 48-49. A. Ben Shemesh, Taxation III, 103-104.

63. An Yesuf, Kbaraj, p. 105

Juristic Interpretation of'Kharrij

64. He cites the following verses ;

(a) Wa /8 tufsidu fi akargi bee da ifiantha (Do not spread corruption

on the face of the Earth after it has been reformed : Qur'an

VII: - 56).

(b) Wv idha tawalls seed fi 41-ang llyufsida fibs wa yuhlik.,a al-hartha wa al-nasla, wa Allan to yultibbu al-fasada (And when he turns his

back, he hastens- about the Earth to do corruption there and to destroy the tillage and the stock ; and God loves not corruption.

Qur'an, II : 205).

65. Abu Yazd, Kharaf, p. 106.

66. Ibid., 61-62. A. Ben Shames'', Taxation In, 105 ff.

67. 'Abu Yfisuf, Kharaf, p. 61.

309

CHAPTER VIII

DEVELOPMENT OF THE SUBSTANTIVE •LAW

OF MUZARA'A

Development of the Substantive Law of Muzara'a 311

During the period under study, these jurists elaborated and developed a remarkable system of land laws. They did not create this law in abstracto ; it was a spontaneous growth. Nevertheless, their influence on its legal growth was substantial. The reasonable element in the primitive and pre-Islamic systems of tenure could not become Islamic law without the sanction of the Sharra and without the interference and interpretation of the Fuqand', as Ibn Taymiyya has rightly observed.

The General role of the Furphi'

The Islamic laws of land-tenure, both in form and sub-stance, grew as the Umma 'evolved in its social manifestations. The statement of Ibn Taymiyya (d. 728/1328 that the Prophetic ban on the primitive tenures makes qiyas (systematic deductive reasoning of analogy) an obligation on the part of the jurists,' pnd the observations of Abit klanifa and Ibn Tlazm that the customary primitive tenures cannot be legitimately rationali-zed and modified on the basis of qiyas are, on the face of it,

contradictory juristic positions. Yet, they are essentially juris-tic methods of interpretation and explanation which more or less reflect a gradual development of the doctrine of muidraà. The. Fuqaha' developed different interpretative methods, criteria and approaches in order to understand the real signi-ficance of the nahy or ban on the primitive tenures and subse-quently carefully formulated their theories of muzetraè. We shall presently see that starting from the idealistic theory of

Abu Ijanifa, who clings fast to the general law or the Grundnorm of the Sharra, to the socio-economic approach of Ibn Taymiyya there is a clear evolution of the doctrine which finds its cul-mination in the analytical-cum-analogical approach of Qadi Abu Yusuf. This evolution of the legal theory, it must be emphasized, was intimately related to the over-all socio-legal development of the Umma.

With the expansion and growth of the Umma the juristic interpretation became necessary to define and delimit the legal and economic relationships. This is the basic purpose, the raison d'être of the reasoning process followed by the jurists..

This implies that the fundamental function of the faqih (jurist) is literally to know, understand, interpret and apply the law (Ìlm al-Sharra). His duty is to study and comprehend the nature and significance of the system of customary tenure and its implied legal relationships in order to discover the reason (ìlia) for banning them. He then defines which socially necessary elements of these tenancies are legally useful for the community. Arriving at this basic understanding of the data, he makes efforts to frame uniform generalizations which he supposes to be in accord with the general tendencies of the period and which at the same time do not contravene the basic principles of the Sharra. The data and the process of reason-ing are not two mutually diVorced things—they represent the tool and the material which cooperate to create the substance of the law of muzdraà. In this process of reasoning which we have termed Islamization the Fugalet', it appears, function in their

respective social milieux, which have left profound marks on their individual theories. Their whole attempt, as we have already observed, in rationalizing the customary practices, is eventually to resolve the inherent tension between custom and the general and broad principles of the Shan't:. The two interacted on each other. The result was the creative prOduct, the substantive law of tenure.

We will now analyze and discuss in detail the nature and main characteristics of the Fuqeha's doctrine of muzarcra. The basic methodological questions which the Fuqaha' asked in the process of their reasoning were : Can general and uniform rules


and muzara'a are concerned, they do not enter into'maystr but are based on more sound equity".3

Concept of Bay' or Sale

Before we discuss the law of muzdra'a (in the broader sense of the term), it is necessary to say something about the term bay' (sale) since the jurists subsume muzara'a under the rubric of bay'. Bay' literally means transaction (both sale, and pur-chase) but in the legal-technical terminology of the Fuqaha' it means mubiidala, or simple exchange of commodities ; it is an exchange agreed upon with the mutual consent of the parties involved.4 In both senses of the word an element of contract or agreement (safqa, mubliya'a, mu'ahada) enters into the mean-ing, when; in the original sense, the purchaser strikes his hand on that of the seller to signify acceptance (qabal) of the offer (%jab). The contract of bay forms the core of the Islamic law of obligations.3 Zurqani quotes Ibn 'Arabi who says that bay', in the general sense of economic contracts, transactions and social contracts like marriage, is the corner stone of society as human beings are instinctively dependent on food resources and sex. As all the resources are created by God for the benefit of man, it is paramount that man should know about his basic needs and the requirements of legal contracts, for which the study of buyu' is an obligation on every Muslim.6 The categories of bay' have been carefully developed by the Fuqaha' and in great detail.? There are also other types of contract, like ijara (hir-ing, letting) or kira' (locatio conductio operartan and locatio conductio rei).

It must be noted that Malik, in the Muwaffa% gives under the generic term of buya` all types of buya` as simple sales of commodities, barter, bullion, money exchange, and ribs etc., but he discusses qirad (sleeping business partnership) and musaqat under independent sections. For him, as we saw earlier, tiara is valid only in exchange of a thing which is determined, certain (thabit) and clearly specified before the actual transaction's In his view, ijara is fundamentally a bar in which the labour of a labourer ('amil) is exchanged against his hire price (ufra). In other words, the contract of ijara is


of 'land-tenure be discovered and then systematized ? Can the theory of muzdra'a be validly derived by the method of qiyas on

the analogy of the parallel institution of mudaraba? The "Kaki' approached these questions from different angles and reached different conclusions which sometimes contradict each other. This is how the whole issue became controversial from the very beginning. As we will presently see, Abfi Hann, Zufar, TA wzaii and Ibn 11azm refused, to apply the method of analogy to derive and rationalize the doctrines of muzara'a and musliqat,2 the probable reason being that the individual reason-ing of a jurist is likely to err and might arbitrarily come to far-fetched conclusions, as it actually did happen. But such a purely idealistic attitude is not relevant to social needs ; society cannot wait, solutions to the problems of tenancy must be

1 found.

Malik and Shag applied the method of analogy, but sparingly. They validated fruit-musdqdt but rejected muzara'a

for its being an aleatory and improper transaction. This reason-ing and the consequent interpretations were based on the data of primitive tenures and the Sunna of the Prophet. On the other hand, Abu Yftsuf, Ibn abi Laylii, Shayba.ni, Ahmed ibn lianbal and the later Fuqaha' came at a time when the Umma had developed its legal and social institutions to a higher level. They applied the principle of analogical interpretation in a liberal way which- sought to validate all forms of customary tenure barring those which had a greater and obvious element of risk like those of very primitive genre of tenures. "What the Prophet prohibited", says Ibn Taymiyya,. "was really the gharar-transactions relating to future values, like the buying of fruit in advance before it has ripened, or buying of crops of many years (in advance), or transacting offsprings of offsprings (of cattle) still in the wombs of their mothers, or the transaction or bay' of muzabana or multdqala and their likes ; all these enter into either usury (ribs) or risk and gambling (maystr, a pre-Islamic game of chance, later banned by the Qur'an) ; likewise, hiring any person or thing for an unknown wage, is also a game of chance. This is not valid. But as far as muidraba, mustiqat,


strictly a sale of usufruct (manfa'a ; for this reason Malik emphasizes that the hire price should be fixed definitively and known precisely (tricelgm, mcergf) otherwise this will become an aleatory sale.9 On the other hand, according to Malik, again, musaqat is not a bay' of Odra ; rather it is like gilled-partnership'. Therefore analogical deductions derived from "pa cannot be applied to musaqat, for &pm is a mere bay' in the sense of mubadala, i.e., a quid pro guo.10 The distinction betwetn the two concepts will become clear when we examine Malik's theory of musetqat in detail. We will now analyse the main features and sources of this theory and shall see whether this theory reflects, in some important sense, the local practice of the Hijaz. Malik's theory will also be related to his concepts of giycis and darura. His disagreements with Abu Eanifa, Sufyan al-Thawri, Awza‘i, and al-Layth ibn Bed will also be noted. Two important questions will be posed in this connec-tion : What are the sources of Malik's land laws? Second, how and why does he deduce his theory of musaqat as being valid inspite of its being an aleatory transaction? We shall see that the entire force of logic in Malik's legal reasoning is focused upon removing any element of chance from the primitive tenures : share of the tenant must be defined in exact terms.

Milik's Theories of Musggra and Money-rent

Malik's basic approach to the problem of mItayage is his-torical, as the important source of this law for him is the ancient practice of the Hijaz. As we saw in the first chapter, Malik infers his theory of musagdt from the model of Khaybar. The necessary reason (`ilia) for this analogical deduction for him is the. Mu'amala between the Prophet and the Khaybarite tenants which mainly involved date-palms forming the aN (material substance, capital).11 We also saw that Malik inter-prets two mursal tladiths both related on the authority of Ibn Shihab al-Zuhri (d.' 124/741-2), one from Sa'id ibn al-Musayyib (d. 105/723-41, and the other from Sulaymin ibn Yasar (d. 100/718-9).12

The term musiggt, a verbal noun derived from saga (root


s. g. y.), to water, or irrigate a land, itself connotes that in this method of agriculture irrigation constitutes the major element of the total process of production. It is the real basis of the

as/ of the fruit tree and source of manfa'a (profit, usufruct), and it forms the greater part of the investment and expenditure. Even if rain water is available, musggra is valid, although there may not be any need of artificial irrigation. Here other expen-ses take the place of watering (sagy),I 3

It must be carefully noted that Malik does not concern himself with the notion of muasama of grain crops which was fit for the grain crops and for well-irrigated agriculture like that of the Sawad ; it was not suitable for the cultivation of fruits. This concept, therefore, could not take root in the Hijaz where fruit-muse-int was commonly practised. Malik is consistent when he emphasizes that the Prophet's deal at Khaybar was mostly concerned with date-palms and not grain crops. It is nevertheless taken for granted, as Zurciani tells us, that this theory of musgat is an axception (istithna') to the general ban on the primitive tenures of the genre of mukhabara.14 This implies that there was an actual ban on the primitive tenures in the small Community of the Believers ; but despite the fact that social conditions gradually changed, the substratum of the primitive tenures which constituted the customary economic and legal order, continued along with this ban under the force of compulsive and aleatory system.

This "exception" or the modifying principle is justified for the compelling reason of dargra (reasonable social necessity), inspite of the fact, which Abu Ijanifa has rightly pointed out, that musaqat, like other types of primitive tenure, violates the socio-ethical norms of Islam and is thus null and void. The principle of social necessity introduces the element of change into the rigid generalization of the rule of prohibition which does not foresee the future combinations of myriads of relations between man and land. "The owner of an orchard", says Zurciani, "is sometimes unable to plant his own tree or cultivate his own crop. As long as the practice (`arnal) of musgglit is


prevalent (in the community), its meaning and intention is curtailed, changed and reestablished (with a new concept). In that case it is not necessary for the law maker (snarl% literally legislator or law giver) to legislate a law (liukm) which is contrary to this (established) custom. He has rather the option to make, laws which correspond to this custom or precedent or which do not. This is the reason why the custom of numaqat is an exception to the basic socio-ethical principles of Islam"15 .

This statement about the validity of the custom of musaqat is highly significant, for it essentially brings out the fact that Malik's theory of must:gat, in a sense, is a product of the socio-economic conditions of the Hijaz.16 From this mater-ial, Malik, exercising his juristic intelligence and applying the general formula of the Mu'amala of Khaybar derives his impor-tant theory. This is a rational and creative effort which under-scores a remarkable -achievement in the field of Islamic jurisprudence. This also shows that in the early phase of its development Islamic land laws were growing spontaneously in accordance with the spirit and elan vital of the growing Com-munity. Malik's theory of musaqat, as we have observed on several occasions, is analogically based on the pre-Islamic institution of glad or mudaraba, in which the rabb (capital owner) advances his capital (ra's al-mdl) to the. worker to transact business on the stipulation that the riblfr or profit will be shared by both of them ; any loss will be borne by

the owner himself and not by the worker.'? According to Malik, this glad is valid only in transactions involving àyn, like gold and silver (money) and not in commodities (ùrad, silaà) and not in those transactions which involve articles of bat, exchange of which are equivalent in value, and which are excessively evil : ribd is such -a bay which is pernicious in its effects, of which neither a small part nor a greater part is lega1.18

On this analogy of Oral, the fruit bearing tree of the muselqat-contract is' àytt, the material substance, like ready

Development of the Substantive Law of Muzdra'a 317

money; wealth or capital which the orchard owner gives to the musdqi (literally one who waters the plant), or ?mil, on the

condition that, first he will bear all the expenses of seed, watering, mending and protecting ; and, second, that they will both share the fruit in the stipulated proportion. "This is the practice of musaqat which is based on law and reasonable cus-tom (merrfif)", says Malik.19

Malik further explains that the practice (Sunna) of

musagat (in theAlijaz) allows the orchard owner to stipulate inter alia that the musdqi will be responsible for erecting fences and enclosures around the orchard ; he will clean and dredge the source of water ; he will build the tank to preserve drink-ing water ; he will also pollinate the fruit trees, strip the boughs, pluck fruits and do other similar things. For all this .work the musdqi gets half, one third or one fourth, or more or less of the fruit as stipulated in -the contract. Malik, however, says that the owner cannot demand that the musaqi will build' any new structure, for example, digging a new well, or extend-ing a channel of water, building a dam, or planting a new tree ; for this would mean that he has to supply an asl at his own expenses—this will increase the total 'expenses of the worker which is all illegal because this is tantamount to transacting fruit (share of the worker) before it has actually ripened. And this type of bay' al-gharar has been banned by the Frophet.20 But if the owner hires a worker to do certain tasks (for the simple Tara of half of the fruit) only after the fruit has become sound enough and its sale becomes lawful (idha tab al-thamaru wa had& saldlphu wa 1;balla bayuhu), this is .a valid transaction, the owner engages the labourer for a thing which is certain and known, and which the labourer has seen and agreed to accept as his wages. On the other hand, in a contract of musaqat, if there is no crop the tenant gets nothing : his reward depends on the actual yield of fruit. In this case of fruit-metayage the tenant is not an ajir, he is a Stayer, a sharecropper. In the simple case of /Ara, he is a 'hired labourer ; and Ora is valid only if wages of the labourer are defined clearly since it is a bay—the orchard owner merely buys his labour, and


according to the Prophet's Itadith such transactions of risk are not allowed.23

Malik clearly states that the contract of musa-gat, according to the customary practice. of Hijaz (al-Sunnatu ft al-musaqiit 'indana) pertains only to the 'ftsil/ (substances of trees already existing) of date-palms, vineyards, olives, pomegranates, peaches or similar fruit trees. Such trees (and not land) can lawfully

be leased on the condition that the. tenant/labourer (rah!) al-mil) who supplies agricultural implements, labourers, and other things ,will get one half, one third, or one fourth, or more or less.22 Musaqat is also valid in case of grains (zar') provided that the grain plants have already sprouted (before the contract) and 'have grown strong, and the landlord is unable to irrigate the grain plants and is' incapable of working the land. Here Malik implies that in a hardship case the general law may be 'notified. This notion of social necessity is the distinctive feature of Malik's legal philosophy which assigns prominent role to the reasonable custom.23 In this connection he states that the custom of the Hijaz consists in leasing date-palms in masaqat for a period of three or four years, or more or less.24

Malik is categorical that bare or "white" land (arc! baydir ) cannot be contracted for musagat because the contract of plane land muzcirda is a clear case of gharar since the produce of land sometimes increases and sometimes decreases. Sometimes it perishes at the very start of the tillage. This means that the landlord will have missed the opportunity of leasing this land on a term of fixed money rent (in advance).25

Malik thus permits musaqeit of date-palm, and rejects that of bare land (he never uses the term muzeirda). The owner of fruit trees cannot legally transact fruit unless it has ripened, whereas the owner of plane land leases it as it is (i.e., bare, there is no plantation on it). Moreover, in an aleatory contract (like that of muarrea) the landlord takes risk (akhadha 'amran ghararan) : he does not know whether his share of the crop will ever accrue to him or not. This is all reprehensible (makrnh). This type of mitayage (muthra'a), says Malik, is

Development of the Substantive Law of Muzeirda 319

like the example of a person who hires a servant to accompany and serve him on a journey for certain wages ; but afterwards he says to the servant that he will pay him only a tenth part of the total profit of any trade during the journey, as his wages.

[ This is all illegal and unwarranted because the amount of the

profit is not known.26

Again and again mon( insists that as a matter of principle

the aleatory contract of muzarda or mitayage is not valid in

Islam's economic system.. He allows mulanelt between the

period when fruit of the palm tree is all cut off, to the season when the fruit reappears on the tree. If the fruit has already appeared, the tree cannot be given for musagrd—in this case it

would become a simple ijara or hiring a person for wages. The

contract of musaVit must take effect from the next season after cutting off the fruity This general principle of validating

fruit-mm/711r and prohibiting muzeirda is, however, beset with

practical problems which this general law does not foresee. The'problem arises from the "white" land which lies between the fruit trees and which, according to Malik, cannot be given

on musitgat. As there was no,precedent in Hadith in this con-nection, Malik endeavours to solve this problem by appealing to the custom of Hijaz. He advances the postulate that if

the "white" land is lesser than the asl (fruit trees) by one third

to two thirds, the rule of muscigai may be applied to this

"white" land too. But if the asl is only one third or less and

the "white" land is two third or more all of them must be leased for a fixed sum of money because in this case musaqat becomes invalid, (jaza fi dhalika al-kirtu wa harumat )(MI a1- musdqcit). malik says that this view is according to the custom of the people (of Hijaz), as they tend to contract asl

for museiqat which also partly contains "white" land. They also, by custom, lease "white" land against money which partly has 'a few fruit trees. Concluding his discussion of

mus421, Malik remarks that these buyie or -economic transac-

tions involving exchange have "continually been held permissible in law. The people have been concluding these contracts

with each other, i.e. that has been a well-established reasonable


custom in the society. Nothing in particular has been trans-mitted in Tradition which could limit or proscribe it, or declare this custom either legal or illegal. According to us (in Eijaz) the 'aural or custom of the people must be followed" 28 The second part of Malik's theory relates to lease of land for money. This is also inferred from the legal Hadiths which suggest that the Prophet, Companions and Successors all allowed lease of land against a fixed sum of money but invalida-ted metayage of "white" land.29

Following conclusions emerge from the theories of Malik. First, in his theories of musagat and kira' al-ard, the continuing custom of Hijaz plays an extremely important role. Because of the arid climate conditions in Eijaz no developed irrigational agriculture could develop. The practice of fruit-musagat was therefore a customary culture common for date-palms. the system of muarcea is therefore not considered by Malik as valid in law and it does not find favour with him. The theory of muzircea could evolve only in more fertile regions with well- developed agricultural systems like that of 'Iraq where Aba. Yusuf and Shaybani elaborated their theories of grain-muzarda and fruit-musagat which had been widely practised in the Sawad, and before that in the former'provinces of the Byzantine and Sasanian Empires.38

Second, Malik's theory of musagat is deduced analogically from the parallel institution of girad, according to which the capitalist bears all the loss ; the worker participates

in the profit only and does not share any loss in the business. This analogy is inapposite, imprecise and precarious, and obviou-sly based on the syllogistic reasoning which fails to fulfil the rules of logic in this case. The asl of capital (money) and the asl of a date-palm are not the same. One is subject to the vagaries of nature and outside of human control, while the

capital is operated through human ingenuity and rational con-trol and hence probability of loss in business tends to be minimized. In other words, in the contract of musagat, if the crop is blighted and destroyed, the tenant loses everything he

Development of the Substantive Law of Muurtra'a 321

has invested ; the incidence of loss is greater on the tenant than

on the landlord.31 It may however be pointed out that Malik's

general intention in the fruit-musagat is to make the landlord

share the risk with the tenant.

Moreover, musdat (and muzara'a), as it is clear from the

discussion so far, is not only a juridical problem, it is also a social and historical phenomenon. We saw that the discussion

in the system of the jurists starts from the Mu'amala of Khaybar.

It thus originated more or less in the necessitous condition of subjection : the farmers of Khaybar were largely defeated and subdued by the Muslims. They were more or less like the

conquered coloni and 'idly of the conquered territories of 'Iraq,

Egypt and Persia; albeit in a little better condition than the

latter. They had to pay rents and taxes and were not free to enter into contracts. This fact has also been pointed out by Abu Eanifa. It seems that the compulsory attachment of

dhimmf sharecroppers continued even if they had become Muslims ; this was because of the financial needs of the state.

This analogy of musagatimuzara'a therefore Seems to be artificial

and incomplete. Malik presumes that the tenant must be as free as the worker in a girakcontract, Which is not borne out by the actual conditions and relationships between landlords and their tenantsvpartieularly when the latter were also, historically speaking, not better than the serf-tenants attached to the soil ; while the former were not only landlords but tax-farmers

and politically powerful people.

ThirdyMe.lik rejects muz4ra'a of the bare land as it contains

no 'an and asl, the material substance, with which the tenant

can associate his labour in a definitive and certain manner. This is for him a gharar-transaction, null and void in Islam, for it amounts to a risk bargain and sale in "future" values,

termed by Malik as qinuir and mukhdfara—games of chance and

risk.32 Abu Hanifa rejects both musagat and manta on

similar grounds. It is of course clear that Malik validates tnusaqiit for its being less aleatory and for its being a prevalent Practice among the people. This makes Abu Eanifa's approach

appear idealistic.


The apprehension of dealing in "future" values, i.e., specu-lation, pervades the whole law of obligations and contracts in Islam. Risk is prohibited in things which are weighed and measured. Selling of offspring in the womb of an animal; olives in exchange of olive oil, sale of raw fruits to be delivered in the future when ripe, are all illegal sales. So are the pre-Islamic customary buyu' of mulamasa, munabadha, muzabana, multaqala, and mukhitbara.33 This means that an economic system which is based on speculative transactions is not valid in Islam.

Fourth, according to Malik the bare land lying between the trees cannot be contracted for musaqat. The postulate of limiting one third or two thirds proportion in areas of tree and

bare land is arbitrary and vague. Ibn Hazm rightly cricized this aspect of Malik's theory. It is not clear whether this one third refers to the area, total produce, or price of the crop. There is no basis and no sure reason for this 'division of one third of bare land, for the produce decreases and increases, and the prices of the crop fluctuate.34

Ihn Hazm also criticizes Malik for presuming that in Khaybar there/ were mostly orchards. He says that Khaybar was not a single orchard nor a single uniform place, and there cannot be any definite limit of bare and orchard land. ,There were some places there where. rib, trees were found while there were also orchards without any bare land.35

Fifth, the real achievement of Malik (and other Fugaht) is the systematization of primitive and customary tenures into uniform and generalized rules of two broad categories of musaqatImuzara`a and kira' al-ar(1. By this method the Fuqaha' discovered these importan laws from the mass of the customary tenures most of which were of aleatory nature. They cast these laws into the Islamic mould by judging them on the Grundnorm of the Sunna of the Prophet, practice of the Companions and the Successors, and consensus of the local Muslim community. In this process, the status contract developed into purposive contract, and serfdom into freedom. These tenancies were brought into the pale of the Islamic law

Development of the Subitantive Law of Muzara'a 323

of contracts and obligations. This had immense social and economic significance for the serft-tenant. The tenancy relation.-

ship between landlord and tenant was made 'a legal contract,

an 'aqd (an enforceable agreement) in the terminology of the

Sharra. The tenant, as compared to his customary social status in the pre-Islamic period, becomes a free individual with his own rights : he is at liberty to enter into agricultural contracts. Formerly he was bound to the soil by force of custom. He could not for a single moment separate himself

from this land, which he had to till; if he ran away from the

land he was supposed to have stolen his own self. This state-ment must however be. qualified.. As we observed before, in actual practice and inspite of Fuqahrs theoretical formulations,

the tenant-serfs remained attached to the soil they tilled for the reason, that the politico-economic regimes were more or less based on the revenues provided by the tenant-serfs. The gap between the ideals and the actual practice in human affairs is difficult to bridge. This was also true of the Islamic state.

Idealistic formulation of Abu Hanifa

We have seen that Abu Hanifa (d, 150/767) invalidates all primitive tenures including muzara'a and musaqiit36 on the basis

the liadiths related by Jabir ibn 'Abd Allah and Anti' ibn Khadij.37

The reason ('illa) for rejecting these forms of tenure, according to Abu Hanifa, is the total consensus (lima') that 'ujra is legal only if the hire price is known and definitively fixed. The tenant

who tills the soil in a rnitayage-contract is hired for a share of the crop. He invests his seed; the nature and amount of the produce of the land is not known he does not know precisely how much grain this land will yield. Will it increase or decrease? Will the crop perish and be blighted So this ijara or

hiring of the labourer is for a thing which is not known. What-ever analogical method is used to deduce the law of motayage

it is all batil (i.e., null and void) by way of consensus. So is

the case with mu'amala (musaqat of date-palms), for the worker here is a hired labourer for an unknown quantity of fruit (if the frnit-erop perishes there will be nothing for the worker).


All this reasoning of Abfi Hanifa is based on the assumption that muzcira'a and nnaliqat are transactions of ijdra (sales of hire). Therefore, he concludes that bare land must be leased against a fixed sum of money or some other commodity.38 He gives a hypothetical example of an agricultural partnership which clearly defines his basic approach to the whole problem of mitayage. This also shows his idealistic stance. In this exam-ple, four agents of production; viz. landlord, tiller, animal owner, and seed owner cooperate to produce the crop. After the crophas been reaped, the seed owner takes hold of all the produce. From the joint pool, he pays to the other agents their wages or hire prices. Abu Hanifa argues that the seed owner who now owns the crop must observe his duty to God and must not seize.the entire crop.. His whole emphasis in this illustra-tion is that no one agent of production has the exclusive right over the produce of the land. The crop grows due to the natural and inherent powers of the seed and the land. They must all share it according to their relative hire prices 39 In

another illustration, he clearly states that if the landlord gives his.land and seed while the cultivator supplies his labour, instruments and animals, and then both of them share the crop equally, it is all batil (null and void).4°

This theory of Abu Hanifa thus invalidates all types of rnitayage as they are for him transactions of ijeira and not part-nerships in the strict sense. The primitive tenures, he believes, were all banned by the Prophet. Therefore, by no stretch of imagination can they be rationalized on the basis . of deductive analogy. He denies that any such aleatory'contract of mOtayage was ever concluded by the Prophet at Khaybar for the simple reason that the farmers of Khaybar were conquered and reduced to the status of serfs. They were thus attached to the soil.

The statements of Abfi Hanifa and Malik thus clearly prove that both of these jurists make consistent efforts to show that fundamentally ttittartea is not compatible with the economic ethics of Islam and is therefore invalid in Islamic land law. Even Malik's conception of musdadt, strictly speaking, is not

Development of the Substantive Law of Muzdrala 325

metayage in view, of his theories of asl (material substance) which

is the basis of muscigat, and money-rent which seeks to introduce

the measuring rod of money in this arbitrary system of primitive aleatory tenures. The two statements of Abu Hanifa and Malik are the earliest known formulations of this problem. Shafi'i, as we shall see, also follows this original viewpoint of Malik. Abu Yfisuf's interpretation of this problem is analytical and more liberal than that of his predecessors—analytical in the sense that he formulates his laws of land in terms of their logical structure more than on idealistic or historical grounds.

Analytical method of Abu Yitsuf

Abfi Yfisuf approaches the problem in a pragmatic way and

builds his doctrine on the Hadiths which we have mentioned

before.41 He represents the beginning of the process by which the ancient school of We 'Iraqian jurists of Kafa was replaced by

that of the followers of Alma Hanifa.42 Since he was a judge or jurisconsult of Haran al-Rashid his theories reflect, to a certain extent, the real situation prevailing under the early 'Abbasids. For him the decision of the Caliph, the existing custom, the prevailing legal and economic arrangements and relations between peasants, landlords and the state constitute the sources of Islamic land laws. His general attitude towards the problem

of muzeirala is that if it is not called in question on the grounds

of the interests of the Umma and the spirit of Islam, the exist-ing arrangements and practices of tenure must continue to function as part of the general law of the Empire. He holds, as a matter of interpretation, that these customary tenures do

not contravene any basic rule of the Shatta law. .

According to him both muzara'a and musetqat, in the capa-

city of their being forms of ijara, are valid and permissible in

Islamic law. He thinks that land is similar to the capital of mudeiraba-partnership in which the capital owner advances his capital to a worker and shares with him the profit thus earned in

the stipulated ratio of one half or one third etc;' although this

profit is not known before hand, for the capital owner does not know how much profit this joint venture will bring, yet this


contract is legal. "Therefore in a similar fashion the bare land of

muzaraca, and date-palms and fruit trees (of musaqat) are all like the capital of mudaraba.43

He basis this theory on the ?minks relating to the Mteamakr, of Khaybar and those which purport that Abu Bakr, ‘Umar I, tthman, Sac(' ibn Abi Waqqas, and 'Abd Allah ibn Masffid

4 used to give their lands on muzarcea-tenancy.o. This analogical application of mudaraba to muzarrea, as we observed earlier while discussing Malik's theories, is not precise and complete. It is very difficult to make such analogies and comparisons because legal concepts and economic realities do not always coincide. The labourer in a mudaraba-partnership is not bound to the capital owner insofar as his existence is not dependent on this capital in an absolute sense. On the other hand, the relation of a tenant and a landlord is much more precarious. In theory, the Islamic conception of tenancy is primarily a form of bilateral contract which creates no relation of dependency. However, in the real word of subsistence agriculture the tenant is dependent on land for his very existence. In mudaraba, all loss is borne by the capital owner, the worker loses time

and energy as he does not invest anything in the partnership except his labour. In muzarcea the tenant contributes his animals, implements, his labour—even seed and slaves. The landlord gives his bare land. If the crop perishes the tenant loses everything but the landlord loses his unearned increment of rent or his share of the crop. In the times of Abu when, for practical purposes, the tillers were tied to the soil, particularly on the state lands, where state muzarrea was common, their loss of crop cannot be compared to the loss of a capital owner in his venture of mudaraba.

It may be argued that the real intention and purpose of Abu Yfisuf in this connection is to make this customary institu-tion of metayage subject to Islam's general law of obligations, and make the contract binding on both parties and, further, to make the landlord share any risk or loss with the tenant. The fact is that, inspite of the well-meaning intentions of Abu Yasuf, the analogy of mudarabd and muzarrea is inapposite and


can only fulfil the requirements of deductive legal reasoning.

Furthermore, as Lokkegaard points out, Abu Yusuf vali-dates all types of tenancy on the basis of qiyas of mudaraba, but, on the other hand, he applies hila (legal evasion) rules on muzitra'a, thereby suggesting that muzarcea-tenancy is inherently an aleatory transaction which is ordinarily not valid.o.

Abu Yffisuf gives five various forms of muzarMa-tenure (in the broad sense of the term) which are, according to him, valid in Islam :

a) Free-tenure, in which landlord gives his land free to his brother without charging him any rent; the cultivator uses his own seed, animals and instruments; the entire crop belongs to him. If this is a Kharaj-land, the landlord will pay the kharaj, if an ùshr-land, the tiller will pay the ̀ ushr. This was also the opinion of Abu Hanifa.

b) Partnership-tenure, in which the landlord and the culti-vator cooperate and share the expenses and seed and till the land together; they share the produce equally. If this is an ùshr-land, sushr will be pain from the produce, if Kharaj-land, kharaj will be borne by the landlord. •

c) Lease of bare land for money : in this tenancy bare land is leased for a fixed sum of money for one year or two. This is valid in law. The landlord will pay the kharaj, if this is a Kharaf-land. If it is an ùshr-land, land owner will pay the ̀ ushr. This is also the opinion of Abfi Hanifa. Abu Hanifa also thinks that if it is a Kharaj-land, ùshr is paid by the person who owns the crop, viz. the tenant in this case.

d) Muzarcea-tenancy. In this matayage-tenancy land is given for one third or one fourth of its produce. We have seen that Abu Hanifa does not allow it; for it is a fasido or irregular tenancy; in his opinion, as we saw before, if any labourer is employed for such a tenancy he must be given a definite wage equivalent to his labour (and not an indeterminate share in the

crop) ; thus the kharaj (or the ̀ ushr) is paid by the landlord.


Abfi Yfisuf disagrees with him; he says that this type of muzirala

is valid if all the conditions relating to it are fulfilled. Khardj

will be paid by the landlord if it is a Kharaj land. In case of

its being an 'ushr-land, ùshr is paid by both of them.

e) Labour-tenancy. In this case the landlord who owns

also animals and seed calls upon an akkar (labourer, tiller) to

till the land for one sixth or one seventh share of the crop. For

Abu klanifa, again, this type of hiring labour for indeterminate

wages is improper (fasid), because the crop belongs to the land-

lord and the labourer must be paid his wages commensurate

with his labour. Abu Yfisuf insists that this is all valid because

their stipulations are based on traditions (athar).47

We have seen before that Abii Ytisuf, while analysing diffe-

rent methods of levying kharaj in the Sawad, advises flaIran

to levy kharaj-muqasama, a proportionate share of the crop, on

the rates suggested by him. He justifies this rent of muglisama

on the musaqat-model of Khaybar48. This means that the ijara-

contract of the musaragalmusaqat type is synonymous and coter-

minous with rent of muqasama due to the Islamic state. Here the

juristic theory of kharaj as.rent of land coincides with the con-

ception of muzarala as ijara or musajara (lease, hire) of land.

This makes the tenants both ajirs and sharecroppers. These two

concepts are identical according to the doctrine of Abfi Yfisuf,

but actually they are working at two different planes. Theoreti-

cally, land tax is a result of compulsion, a consequence of war

and subjection. 'it is a compulsive situation in which dhimmis

have to pay to the Islamic state the land tax or the rent of land.

Ijara of muscat-tea, in the classical Islamic legal thought, belongs

to the general law of obligations and contracts. These two

planes—historical and jurisprudential—have baffled many

Fuqaha'. On the historical (and administrative) plane the

existing legal and economic relations between the state (as land-

owner) and the tenants/sharecroppers (who benefit by manfa'a or

usufruct of the state land) are legitimized on the Prophetic model

of Khaybar. But, on the other hand, the Fuqaha' persistently

maintain that muzara'a/musagat-matayage is simply a bilateral

Development of the Substantive Law of Muzaraca 329

contract analogous to the contract of mudaraba—thus suggesting that there is no real dependency of the tenants on the landlord

(state or individual). This emerging contradiction disappears if

we transpose these two concepts to their historical perspectives

keeping in view that the existing socio-economic order and the

legal system of obligations and rights formed the necessary raw

material for the juristic formulations. The concept of ground rent as tax (kharaj muqasama), as we have discussed before, was peculiarly a Sasanian theory of land which had survived into the

Islamic Empire. When Abu Yusuf is discussing this problem in the context of Sawad, he is observing the old administrative

practice of 'Iraq. These economically more developed conditions

formed an important data for him. Basically his problem was the same as that of Malik. The latter was concerned with the customary tenures of the Flijaz, while the former was grappling

with the complex material of 'Iraq. This explains why Malik merely rationalized musagat and money rents, while Abil Yfisuf, who sees numerous types of tenure involving many kinds of grain and fruit, extends his area of legitimization and rationali-zation from musaqat to muzarda and money rents. Moreover, there was no Kharaj-land in the klijaz where the theory of muqasama as rent of land could develop : Malik even denies that musaqat-tenancy is a kind of ijara in the sense of letting and hiring. This ijara interpretation was influenced by the gractian

conditions in particular. This also explains the fact that the concept of muzeira'a as tax, originally, in the Islamic legal sense, first developed as a principle of state muzeira'a on the state/ Kharaj-lands and was then extended to all allodial lands, thus

becoming a universal phenomenon under the Umayyads and the

early 'Abbasids. At the later stages of the development of this theory of muarda, the model of Khaybar and the muzciraà-Hadiths, instead of functioning as the investigating tools for the jurists, became a hard crust overlaid on the entire theory of muziiraà; the earlier creativity and the spontaneous growth of land laws was arrested. The earlier concepts, which were more

or less relativistically developed by the earlier Fuqraha', became

axiomatic principles with all their conclusions and corollaries.


These continued to be applied by the feudalistic regimes

throughout the medieval Islamic history, with tenacity and

rigidity even on the Muslim tenants and agricultural labourers.

When the classical theory of Islamic law was cast in its final mould, the theory of land tenure also stopped to grow.

Al-Shafi'i's Exposition of muzdra'a and kird al-ard

Essentially, Shafi'i (d.204/820) follows Malik's theories of musaqat and money rent which are squarely based on the custom or 'mai of the Hijaz, but what is more significant is that Shafi'i 'makes persistent efforts to make the Sunna of the Prophet the main source of Islamic land laws. His methodology in this

connection is Much more developed than that of Malik. His

reasoning is elaborate but formal : he uses analogy in a very

systematic but formal manner, ,and his basic approach to the problem of muzara'a is more perfunctory and legalistic than that of Malik. We shall presently sea that Shafiì subsumes nume-rous types of leases and fact situations of matayage under the single category of ijara, with all its assumptions, conclusions, and corollaries, which appears more as a mere intellectual

construct than an empirical principle. On the other hand, in

Malik's formulation, theory and practice blend into each other,

for he is, and this is significant, very close to the ancient practice

and tradition of Medina

Shafi`l deduces his concepts of ijara from numerous types of leases and morayage-practices. He takes ijara in the primary sense of the word, that is, locatio-conductio (lease of a chattel, a house, or a piece of land). He defines it in terms of exchange of ownership/possession (tamlik) of one commodity against another for a certain period of time. The person who hires or takes

anything on lease, such as a slave, an animal, or a house,

obviously (temporarily) owns the manfa'a (gain, usufruct) of the hired thing. In exchange the real owner gets an equivalent

exchange value or price (Wad) of the manfaà, which inheres in the object. "This is exactly the economic transaction of exchange",

says SIM% "although this kind of exchange does not comprise

any sale or (permanent) delivery of 'ayn (substance, capital, like


a house), yet this kind of sale involves a reasonable (tniegina) quality of manfaà, which is basically derived from a known and definite substance. This manfa'a of the object is analogous to the cayn, or substance of the subject (in the logical sense)".49

Thus Shafi'i, through his formal and abstract conceptuali-

zation of land laws, over-simplifies the complex situation of exchange relationships of lease category. "All sales", says he,

"are exchange transactions in one sense, i.e. they can be

grouped under a general concept of exchange of tamlik. How-

ever, they differ only in detailed applications, regulations,

contents and provisions as far as particular situations are

concerned. But they are similar in their general meanings and

concepts.52 . In other words, Shafi'i observes the actual exchange relationships,' but formulates them in the form of abstract concepts. This shows his legalistic approach.

By deductive logic Shafi'i then extends this general theory

of ijara and manfaà to lease of land for money, which for him is a simple exchange of money against tamlik of land's manfa'a for a certain period of time.51 According to this general theory

of Shafi'i muzaraà, in the sense of lease of land for a certain part

of its produce, is therefore null and void in the Islamic scheme

of economics, because it would then be an tiara in exchange for an object the quantity and quality of which is not known.52

Shafi'i gives a strictly literalist interpretation of the Iladiths in deriving his concept of musilgelt. He takes the words of the Ifachths in their primary sense, and consequently tries to avoid any shift or extension in their meanings. For him musaqat is not motayage in the strict sense of the word. Motayage is fundamentally banned in Islam as Malik also propounds.

Shafi'i says that the tenancy of musdvit has legal effects only if

and when soundness (sahib) of the fruits appear and their sale

becomes legally valid.

Further, musdqat, according to the Sunna of the Prophet,

is valid only for date-palms (nakhl) and vineyards (karm), and

thus it is absolutely invalid for all other fruits and crops. His


main reason is that the Prophet, according to authentic Hadiths, made contracts only in these two species of trees. The word kharS (assessment, estimate) found in the Hadiths relating to the Mu'amala of Khaybar, he claims, refers in particular to the

assessment of these two kinds of fruit which usually grow in bunches and clusters. These fruits are generally visible and easily estimated as they are not scattered all over the tree

(making their assessment difficult). The assessment of grain crops and the fruits which do not grow in bunches is very difficult to make.53

She'lì rightly emphasizes the problem of khars as an important element in the theory of mdtayage. Khars (literally a guess) connotes that this assessment of the fruits still on the tree, contains the likelihood of gharar, for the unripe fruits still on the tree, cannot be assessed accurately. This existence of gharar, and the uncertainty of future values in which metayage deals is the cilia (ratio legis) for invalidity of the entire system of metayage. Furthermore, shawl believes that Zakat is due on dates and grapes, therefore they are the only fruits fit for musiagat.54

Thus Shaffil bases the validity of muscigat and invalidity of muzara'a primarily on the Hadiths of the Prophet. His major reason for this is that nakhl, being a material and concrete substance, in all probability bears fruit, whereas the bare land of muzara'a lacks such a substance. There is no standing (qa'im) capital which the land owner could give to the tenant, such as a tree of musaqat, which is given to a musaqi, for a certain share of the fruit This is impossible in the muzarcea-tenancy ; everything this bare land yields is "new" in the agricultural

sense. The fruit grows on the tree naturally and without any work of cultivation on the part of the tenant. There is a

natural superfluity, a surplus (fad!) in the form of fruit. On

the other hand, there exists nothing on a bare land which could

be transacted and thus given to a tiller. There is no fruit, no natural superfluity which may be shared as profit of mudaraba is shared. So everything on the bare land is created and produced (from a scratch) anew (yubdath). It may or may not


grow. It may increase or decrease. The fruit tree, on the

other hand, is analogous to the capital of mudaraba and has lass

propensity to fail the contracts' Therefore, concludes Shafiri,

muzaraga cannot be analogically derived from mudaraba. The

subject and predicate of this analogy, according to him, do not

correspond to each other, as they are basically not similar and

parallel cases. Even if this analogy were valid, muzaraga could

not be inferred from a practice which was unambiguously banned by the Prophet. This analogy is therefore irrelevant

and out of place.66 On the contrary, this method of analogy

must be applied in interpreting the Prophetic Sunna and the

traditions of limas I, and 'Uthman to legitimize . musdqat ;

otherwise, he says, the tenancy of musciqat, i.e., mu'amala of nakhl

will be without any legitimacy and legal effect. It would then by analogy mean that capital cannot create any surplus

profit (fad/ kabir). And this surplus, as a matter of fact, fluctu-

ates. In the same manner dates of the palm tree sometimes in-

crease and sometimes decrease. - He also says that after the àgd

or contract of musavit has been concluded, it cannot be revoked

unilaterally but must be allowed to run its course unless it is

annulled bilaterally.57

We have seen that for Shafiri muzara'a is null and void and

belongs to the genre of primitive tenures of mubliqala and

mukhabara. He agrees to the interpretation of muzara'a given

by Abfi Hanifa, but takes strong exception to Ibn Abi Layffi's

theory which legalizes muzaraà, supposedly, first, on the basis

of the Prophet's Mu'amala of Khaybar, and on the later practice

of Abu Bakr and Ùrnar I ; and secondly, on the analogy of

mudaraba which was, according to Ibn Abi Layla, also applied by

'Umar I, Àbd Allah ibn Masffid, and `17thman. Shafi'l rejects

all such interpretations and tersely says that mustigat of dates

and grapes only is based on the Sunna of the Prophet, and

therefore legal. Muzara'a is just like the aleatory tenancies of

mulailqala and mukhabara, and therefore illegal in Islam.ss "We

validate mu'amala of date-palms", says Shag, "on the khabar

(authoritative report) from the Prophet, and at the same time we

reject rmerimala of the bare land on the basis of the khabar from


the Prophet" .59

It is worth noticing that Shafiri does not consider authentic the traditions which suggest that Sed and Àbd Allah ibn

Mas'ad gave their lands on muzara'a-tenancy. He says that even if we presume that these traditions are correct they could not be advanced as an evidence against the categorical ban on muzitra'a by the Prophet. To judge the authenticity of the Sunna of the Prophet on the basis of a single tradition (khabar wahid) from one of the Prophet's Companions, is to consider the Prophetic Hadith correct if it accords with that of the Companion. This is nothing but sheer ignorance.60

R is clear that according to Shafi'l two meanings and con-cepts can be derived from the Sunna of the Prophet as far as the theory of metayage is concerned : first, only mu'amala of date-

palm and vineyard is valid ; second, the Sunna of the Prophet prohibited the aleatory tenancy of muzartea for lack of any substance on the bare land. An element of ambiguous ijara enters into the meaning of muzara'a and makes it invalid, because by• definition, 'ujra (hire price) must be determinate and known. If the bare land is free from date-palms it can be leased against a fixed sum of money as servants are hired and houses are leased.ol

Like Malik, Shafici fails to solve the problem of a land which comprises partly nakhl and karm, and partly bare land with an infinite number of possible cases. This issue of particu-lars versus the general law also baffles him, and without any recourse to the Hadith, lima' or qiyas, he gives his own opinion that if the fruit trees are double of the bare land, the law of musaqat must be applied. However, if the land is free from such trees it must be leased against money or any other commo-dity (except the produce of the land involved).62 This arbitrary opinion has been strongly criticized by Ibn Hazm, who says that Shaft‘i's definitions of bare land and, orchard land; like those of Malik, have no basis, nor are they supported by any Hadith. The specifications of "one third", "two thirds" and "double", are highly vague—it is not clear whether these refer to the area of

Development of the Substantive Law of Muzara'a _335

the land, produce of its price. Further, the land of Khaybar comprised many orchards and much bare land. There were pro-bably orchards with bare land, and bare land with fruit trees.63

Shafri on Private and State Ijara

From all this shafici concludes that there is no harm if an individual leases his land, and an administrator or agent (wakil) of the sadaga-land, or the Imam leases the immobilized land (al-arti al-mawqufa), against money, or in kind ; or if a person takes a piece of land on qabala-lease for a certain number of years, or he hires someone else to cultivate it, or sub-lets it — ùshr is paid by the cultivator himself, and the sum of qabala by the qabala-holder. Likewise is the "Kharaj-land which a mutaqabbil takes from an administrator on qabala. The qabala-holder pays the money of qabala, while the tiller is responsible for ̀ ushr. In case the tax-farmer cultivates the land himself he pays the money of qabala, and cushy will be on the crop, if he is a Muslim. If the mutaqabbil is a dhimmt and cultivates the land of kharaj, he will not pay any ̀ ushr, and if the land belongs to the category of sulk there will be no ùshr on the crop because ùshr is zakat, and zakat is an obligation on the Muslims and not on the dhimmis.64

in conclusion, it must be said that ShafiTs legal thinking, in general, and his formulation of the theories of musaqat and kira' al-and (although primarily based on the ideas of Malik), are conceptually derived from myriads of tenancy-relations, and fact situations. His legal concepts of ijara and manfcea also function as .two important terms at a high level of abstraction, for they too are generalized concepts which Shafi'i developed to understand the complex situation. His literalist interpretation

of muziira'a-Iladiths and his rejection of customary tenures suggest his idealistic approach to the problem of metayage. •At the same time his endeavour to conceive of metayage in abstract legal terms and too broad theories shows his highly developed rational and intellectual calibre. His creative legal thinking is peerless in the annals of Islamic jurisprudence and he is un-equalled as a legal philosopher.

rri


Further Development of the Classical Theory of Muzara'a

Ahmad ibn Hanbal

Ahmad ibn Hanbal (d. 241/855-856) strictly applies the method of analogy of muclaraba on land and concludes that muzarcea for one third and one fourth of the crop- is valid in law, preferably, if seed is supplied by the landlord, and the dakhil (tenant, sharecropper) contributes his labour and draught animals like the mudarib (worker) who works and expends his labour on the capital -supplied by the owner (in a contract of mudaraba).65 According to him, the pfimitive tenure of muhagala is by definition characterized by lease of land (kira' al-ard) against corn. He expresses his intense abhorrence for this primitive tenancy. Lease of land for money is however valid for him as he says that there is hardly any disagreement or its validity. He also thinks that the land of Khaybar mostly contained date-palms, hence muse/gat is lawful as the Prophet had given this land on the contract of musaqatImuzara`a.66

In a sense this seems to be an original approach to the problem of muzara'a and represents an improvement on'the theories of the preceding Fugaha' for the following reasons : first, he summarily rejects priinitive tenures of the type of mukigala and thus has nothing to do with them. Secondly, with a tinge of egalitarianism he seeks to mitigate the burden of the sharecropper when he says in plain terms that the tenant is responsible only for his labour, his auxiliary instruments and animals, whereas the landlord provides land and seed as well. This modification in the classical theory of muzara'a proved to be a significant departure from the old conceptions which conceived, of muzartea in terms of ijara or locatio-conduc-tio. We shall see that a new orientation was given to the theory of muzeira'a by Ibn Hazm and Ibn Taymiyya, both of whom interpret muzara'a as a sort of musharaka (partnership, associa-tion, cooperation) rather than an 'ufra. This theory was systematically developed by Ibn Taymiyya in his treatise al-Qiyas fi al Aar' al-Islamt to show that although the theory of muzeira'a is primarily derived by correct analogical reasoning,

Development of the Substantive Law of Muzarcect 337

it does not contradict any explicit nass or text of the gadith which has banned all primitive tenures of an aleatory nature. Ibn Taymiyya remarkably elaborates the concept of musharaka to which Ibn Hanbal has dimly alluded.

Thirdly, Ibn Hanbal clearly rationalizes mustigat on the

model of Khaybar which, according to him, comprised more date-palms than bare land ; he does not allow muzara'a in which the tenant is responsible for everything except land. This view-point is at variance with the Conception of muzarcealmusagat

offered by the Malikis according to which a tenant has to provide all the auxiliary implements, animals and seed which help him in tilling and irrigating the land, except of course the

land itself.67

Ibn Harm's theories of Muzara'a and Mugharasa

Ibn Hazm gives three distinct categories of tenure : muzara`a, mugh6rasa and mu'ama/a fi al-thimar.68 For him mu'amala is valid only in each of the following three forms :

(a) Peasant-proprietorship, in which landlord tills his land himself, or

(b) Free-tenancy : land owner gives his land gratis to a tiller.

(c) Landlord gives his land to a cultivator for a specified share of the crop. The tenant tills it with his own animals, labour, and. implements. The landlord cannot impose any preconditions on the cultivator, such as the amount of crop which must come to him while the rest will go to the tiller. The legitimate form ought to be, he says, that if there is no crop the tenant will neither have anything nor will he owe anything to the landlord. These are for Ibn Hazm the only lawful forms

of tenure ; ifna person does not follow any of them he must withhold his land.69

This is a most succinct exposition by Ibn Hazm of the

concept of tenure which he assumes to be legal in Islamic law. He thinks that besides the peasant-proprietorship, a simple


partnership (ishtirak) between the worker and the landlord is good and reasonable in law. He allows sharecropping only as the third and last form of tenancy provided that the rights of the tenant are protected and he is not left at the mercy

of the landlord. The tenant must get his due share from the

crop whether the drop is abundant or meagre. This is the main reason why he invalidates kirdi al-ard, rent of land qua rent,

for this would amount to Sheer injustice and exploitation of the hapless tenant ; the landlord gets his rent whether there is any crop or not. It seems that the whole emphasis of Ibn Hazm

is on making the tenant free in the legal sense ; the tiller must be free, mobile and .with short term muzara'a-contract rather

than being bound to the soil perpetually as serf paying rent to

the landlord.70

We have already seen that he interprets the primitive alea-

tory tenures like those of rauhaqa/a and mukhdbara primarily as

rent of land whether in money or in kind—which are fixed

beforehand by the landlord. "Land is a lmrma mul.tarrama, an

inviolable sacred right of the landlord ; he is entitled to a remuneration in a miarma/a-contract which God has permitted.

Similarly, the labour of the worker/tenant is also a Iturma

mul)arrama, an inviolable sacred right of the labourer which

deserves commensurate wages or share which God has also

permitted to him to take from this contract ; for the contract

is legally binding (wajib) on both of them.71

He bases his three types of tenure on the Sunna of the Prophet and the practice of the Companions and the Successors.

For him the method of systematic analogical reasoning (gin's)

cannot be permitted to derive applied law (far') because reason-

ing (dalil) of the jurist, must necessarily be based on the nass,

the explicit text (of the Qur'an or lIadith). The iftiltdd (i.e. discretionary individual interpretation) of a jurist must strive

to look for a "clear" text of the Qur'an and the Sunna because Islam as a system of religio-social life is all many-is, that is, it is

clearly explicated, which leaves no scope for \ reasoning by

analogy. In the Din (religio-social system) of Islam there are

three types of actions : wajib. (obligatory), /pram (forbidden),

Development of the Substantive Law of Muzdra'a 339

and mubah (permitted). All economic transactions are basically

either harchn or Olen, leaving no scope for analogy and fanciful conjectures.72 He therefore vehemently criticizes lard' al-ard theories of Abu Hanifa, Malik, Shafi'l, Abu Yusuf, Muhammad

ibn al-Hasan al-Shaybani, Zufar and Abu Sulayman in particular and their theories of musdqat and muzara'a in general, as these are more or less based on analogical ground of muddraba.73

As we observed before, he gives his own interpretation of the theory of /primitive tenures. He also says that these Were

all banned by the Prophet, who, however, after the conquest

of Khaybar in 7 AH made with the Khaybarites the contract of Aftertmala for half of the produce of the orchards 74 Now,

says Ibn Hazm, this was an exception to the general prohibition

which fundamentally interdicted all tenures based on the aleatory

character of rent or any pre-fixed recompense whatsoever. The Mu'itma/a of Khaybar therefore abrogates that part of the prohibition which had banned giving of land against a share of the crop.75

This literalist interpretation of primitive tenures led him to acute difficulties as the tenor of his method loses the quality

of creative idealism which is characteristic of the theories of the Fuqaha' of the early period who had reflected and specula-ted on the causes of the Prophetic ban on the primitive tenures ;

they also observed carefully the contemporary relations of the

tenants and land owners. This led them to develop their own legal methodology to infer, interpret, apply and thus derive the fun-0 (systematic details) of land laws which were for them consistent with the basic ethic of the Shari`a, and at the same time socially necessary for the stability of the Umma. These laws grew spontaneously, as they were in accordance with the aspirations of the Umma. The material content of these laws Changed and evolved from one period to another, keeping pace with the over-all development of the Community. Eventually, with this developed the legal methodology of the Fuqaha' . From Abli Hanifa and Malik through Ibn Hanbal and Ibn Hazm

to Ibn Taymiyya a definite development of these laws is clearly discernible.


Ibn Hazm, therefore, without appreciating the role of

reasonable custom and without making use of the method of analogy, seeks to modify the theory of muzara'a, and considers kira' al-ard for money or—anything else invalid, since rent is stipulated as a special recompense for landlord. For him con-

tract of muzara'a is not permissible for a fixed periOd of time,

as according to him, the Prophet and the Companions never

fixed any period of time for such contracts. Both the tenant

and the landlord are free to terminate the contract.76

Ibn'tlazm's Theory of Mugharasa

According to Ibn Hazm, mugharasa (from ghars, to plant a

tree)' is a contract in which a landlord gives his bare land to a worker to plant fruit trees. It may be done in two lawful

ways : first, the landlord bears all expenses of transplantations

'of twigs, fixtures, of date stones and pruning of branches and

twigs ; he hires a worker/tenant to plant the tree and to work

and irrigate it for a certain fixed period till the plant yields fruit—in exchange for this work, he gets a fixed, definitively

known wages, or a certain piece of that land, i.e., he becomes

co-owner of the tree. Second, the tenant is made responsible

for all these expenses including plantation of the fruit tree, its

Mending, irrigation etc, and, in exchange, he obtains a certain stipulated share—one half, one third, one fourth, or more or

less of the fruit crop. In that case the worker can have no

right over the land. The period for this • tenancy is not fixed,

and all other terms and conditions of the contract of muzara'a

apply in this tenure.

Ibn Harm derives this theory of mugharasa also from the

Prophet's Mu'amala of Khaybar.77 He objects to Malik's

definition of mugharasa as a contract in which the owner of

a bare land gives his land to a tenant who undertakes to invest his own money and implements, and thus plants trees. When

the trees have reached a certain age of full growth ( shababan ma)

the tenant gets, as stipulated, ownership of certain part of the

land (raqabat al-ard) and partial ownership of the trees.78

Ibn Hazm says that this type of mugharasa is not lawful at all

Development of the Substantive Law of Muzarefa 341

because it becomes an indefinite and unknown ijara. It is difficult to define "full growth" of the tree, for it is not precisely known in what period of time the trees will achieve this full

growth. The tenant does not know whether the plant will

ever grow and remain intact. Ibn Hazm also takes strong

exception to the words "certain growth". He calls it "very strange", because plants vary extremely in the modes and patterns of their growth : some grow while others wither away ;

some grow tardily. There is thus no general and definitive principle of the growth, and it often happens that only one or two plants among many grow into trees. To entitle the tenant

to ownership of half of the land would be an enormity and an aleatory transaction. Furthermore, this definition of mugharasa is not based on the Qur'an, Sunna, or any tradition of any Companion or Successor.79

Mu'amala ft al-thimar

Mu'amala ji al-thimar is a tenure in which the orchard owner gives his fruit trees to a worker who irrigates the soil either by buckets or water-wheel or otherwise, fecundates the trees and fulfils all the requirements of the tillage till the time

when the fruit becomes sound enough to be sold. According to this contract, the worker gets one half, one third or one fourth of the fruit. It is similar to the contract of muzara'a. Work is usually stipulated for one year.86 Ibn Hazm bases this form of fruit-tnetayage also on the model of Khaybar. It seems that this mu'amala fi al-Eh/mar is similar to must/gat of Malik and Shafici. Ibn Hazm, however, explains that muzara'a and mu'amala ft al thimar do not belong to the category of ijara, i.e., lease of land for a pre-guaranteed rent for the , landlord. He rejects Abu Hanifa's theory to the effect that muzara'a and fruit-mitayage are not valid because they are aleatory transac-tions in which wages of the tenant are kept precarious : they

are not determined precisely and guaranteed beforehand. Ibn

Hazm remarks that this viewpoint is arbitrary ; he argues that

if both of these tenancies (grain-matayage and fruit-metayage) are invalid in law, so is mudaraba in which wages of the worker


are not determined precisely. But it is a fact, continues Ibn

Hazm, that the jurists unanimously agree that mudaraba is

permissible. Analogously, they ought to consider fruit-mitayage

permissible, so far as it is'a parallel case in which a fruit tree is

given- to a tenant for a certain share of the produce. Besides,

fruit-metayage is undoubtedly based on the normative practice of the Prophet and his Companions ; this practice has continued,

till the, last days of the Caliphate of 'Uttar 1.81 This is sure

and certain Jima' which has not been done away with. On the other hand, there is no unanimous agreement on the practice

of mudaraba : only six of the Companions have reported the

mudaraba-traditions.

He objects to Shafici's theory of musaqat which confines this

contract to, two kinds of fruit—grapes and dates, believing that

zakat is due on these two kinds. "This reasoning of the Shaficites

is faulty and their analogy weak", he says, "for, as dates have

stones, it must by their own method of analogy be applied to all

fruits which contain stones, and similarly as'dates are sweet, all

sweet fruits must be made lawful for this contract as parallel

cases. Further, if the reason which makes these two fruits liable

for zakat is that they are, apparent in the tree and easily assessa-

ble, so are fig, pistachio, and others. The claim of the Malikis that

bananas and vegetables cannot be contracted for fruit-mitayage

is an argument without any evidence. He remarks that without

any doubt there were at K.haybar vegetables and various other

fruits which grow in the 'Arab soil, like pomegranates, bananas and cane which were included in the Mulmaia-contract made by the Prophet".82

In fundamentals, thus, Ibn Hazm adheres tenaciously to

the theory of muzara'a or mitayage in all its conclusions and corollaries. For him it is evidently based on the Surma of the Prophet and Jima' of the Companions and the Successors. He

rejects ra'y and qiyas and believes that they cannot be the bases of this theory. As we saw in the first chapter, he applies his

methodological principles of istithna' and naskh to the material

of traditions and the theory of primitive tenures. He comes to the conclusion that rent of land qua rent is antithetical to the


Grundnorm of the Sharrq. "Ijarat al-ard, or leases of land", he says, "are absolutely illegal whether for grain crops, for

plantations and fruit, or for any agricultural structure or for anything at all. It is not valid for a known period of time, for short or long terms, for rlirhems, dinars, or for anything else. Only. muzara'a is valid in law".83 In all his theory Ibn Hazm emphasizes that sharecropping is the only m thud in which landlord shares risk and loss if any with the tenant ; in money rent all - the risk is borne by the tenant.

A regards the period of the contract of inetzlra`ct, Ibn Hazm says that it must not be generally predetermined as there is no

explicit nass or ijma‘ in this connection. He doss not agree

with Malikis and Shafici's who determine the period in this

contract as well as in mudaraba.84

Socio-Economic Approach of Ibn Tayntiyya

The starting point for Ibn Taymiyya (d. 728/1327-8) is the

deductive reasoning of giyas, the application of which was objected to by some of the Fugaha' who reasoned that legitimacy of muzeira'a and musaqat contracts cannot be deduced through it. These Fugaha', like Abu Hanifa, advance the argument that these

customary forms of tenure conflict with the clear text (nass) of gharar and nahy (prohibition) Hadiths relating to the primitive

aleatory tenures.

Ibn Taymiyya categorizes qiyeis into sahih (correct, sound),

and fasid (irregular, improper). He says that the central point of emphasis of this problem of muzarrea is misplaced which has led many jurists to impossible conclusions that mudaraba, musaqat and muzara'a are all khilaf al-qiyas, thatis, their validity cannot be derived by the method of analogy. "These Fugaha' think", says Ibn Taymiyya, "that these contracts belong to the generic

category of yaw in which, by Cefinition, labour of the worker is

exchanged for an equivalent value, and a commensurate price

or wages.85 This entails a prec se and certain knowledge 'of both

terms of exchange and the exchange price." When these Fugaha' observe, continues Ibn Taymiyya that in these contracts labour


and profit are not exactly known, they come to the conclusion that these contracts are therefore contrary to the method of qiyas. This is their mistake because these contracts belong to the

genus of musharakat (partnerships, associations) and not to that of mteawadat (exchanges, barters). Musharakat are not like mu'awadat. It may be said that a musharaka does contain an element of exchangeability. So is muqasarna (tax on land pro-portionate to the crop, paid as 'ujra on state land for utilizing land's usufruct), although it is not a mu'awada in itself ; it certainly contains an element of exchangeability—so much so that some Fugahr tend to assume that mugasama is a sort of

bay' (that is, the tenant pays to the Islamic state, rent for using the state land) and has the conditions and stipulations of a bay'.86

According to Ibn Taymiyya, the primitive tenures were not based on the principle of equity or justice ('ad!) ; in these custo-mary tenancies, which were banned by the Prophet, the element

of inequality had made the landlord reserve for himself the richer crops grown on the areas irrigated by the canals (and reserve for the sharecroppers the areas which were less fertile). Because of this inherent injustice and iniquity in the customary tenures these were banned by the Prophet. Now, Ibn Taymiyya, accepting the theory of primitive tenures, says that they anteda-

ted Islam. However, his conception of these tenures is quite different from that of other Fuqaha' . He defines them not as

ijarat but as musharakat. For him, muzara'a is not only an

historical -category but also an issue with economic, social and juridical implications: The socio-economic aspect of the problem was relegated by the early Fugahas to the background. Ibn Taymiyya makes it a legal as well as an economic and social problem. He accepts the Prophetic ban on the primitive system of aleatory tenures, but says that the problem of the jurist starts from this point : the jurist must study and investigate the reasons for this ban as this ban makes it obligatory on him that he must apply this general principle on the data of customary tenancies and by his systematic reasoning and creative specul-ation embodied in the method of qiyas derive the rules of formal

Thus Ibn Taymiyya makes it clear that the primitive tenures were forbidden by the economic ethics of Islam, not only because these forms of tenure were aleatory but more importantly because they were characteristic of exploitation of the 'tenant by the landlord. However, he makes an exception as far as muzara'a and musaqat are concerned. To say that the landlord and the tenant share the loss equally in the contract of muzara'a

is nothing but pure legal casuistry. In this way Ibn Taymiyya tries to exclude muzara'a and musaqat from the category of

aleatory contracts by applying the Prophetic ban only on muhaqala. This method of classifying exceptions and making distinctions in ethico-legal matters does not solve the problem of mOtayage. This legal casuistry is evident from Ibn Tayrniyya's unsuccessful attempt of justifying that seed must be provided by the tenant and not by the landlord, because, he thinks, unlike mudaraba, in which profit (ribh) distinctly and separately returns to the capital owner which he shares with the labourer, the seeds in a muzara'a-contract do not return to the landlord but

Ibn Taymiyya clearly sees that the ijara and gharar-concep-tions of the primitive tenures were beset with many problems of postulates. For him the Fugaha, who had invalidated muzara'a for its being an aleatory contract, and those who had legitimized merely musliqat for the sake of social necessity, were all approa-ching the problem from untenable hypotheses and were asking inconsistent questions. A person who studies the problem carefully comes to know that muzara'a is free from exploitation (xu/m) or risk and chance. In the muzara'a-contract both profit and loss are shared by the tenant. Any one of them does not deprive the other from sharing the profit, if any. If there is no crop, the loss is borne equally, and thus one will not be in a position to appropriate profit exclusively. This is nearer to justice and far from exploitation. On the contrary, in an ijara or a wage-contract the wages of the worker are fixed whether any crop is harvested or not."


law and systematic contracts of mudaraba musaqat and muzara'a.87


the irrevocably gone with the crop. For this reason seed should

preferably be supplied by the tenant.89 Further, says Ibn

Taymiyya, musitqat is analogous to muzurrea. The inusdqi (tenant who irrigates) gets a certain part of the fruit which

accrues to the asl of the tree. Similarly, the innzari` (share-

cropper) receives a certain part of the crop. This crop grows on the land, of the landlord. It is immaterial who supplies the

seed—owner or the tenant. It is also recorded in the Hadith

that the Prophet made the contract of Mu'amata with the people

of Khaybar for half of the crop of fruit and grain, on the condi-

tion that the Khaybarites would cultivate the land with their

own implements and expenditure. The land, date-palms, and

water were proVided by the Prophet, as they belonged to him.

Now the farmers of Khaybar were to get for their work a certain part of the produce-‘and the Prophet would give date-palms

only.

Ibn Taymiyya's 'theory of•muzaraà and musaqat is a forceful

statement of the post-classical theory of muzaraà. He makes

mitayage not only a legal problem but an economic issue too.

His method for solving this problem is more casuistic than that

of Ibn Hanbal. The interpretation given by Ibn Taymiyya, viz.,

that according to the &villa of the Prophet,' tenant must be

hel4 responsible for providing seed and that this type of muzarda

is more valid than that in which the landlord supplies the seed,

is contrary to the opinion expressed by Ibn Hanbal. Neverthe-

less, Ibn Taymiyya's postulates indicate the extent to which the

theory of muzartià had developed in the Sth/14th century. In

conclusion, it must be' said that his over-all theory shows that he

has amore developed sense of social awareness than the precect-

ing jurists who adhered to the traditional interpretations of the

theory of muzaraget.

347

NOTES

1. Al-nahy 'an dhalika (nzuzara'almukhabara) majib al-qiyas. See : Al-

Qiyas fi al-Sitar` al-Isla:2,i (Cairo : Matba'a al-Salafiyya, 1928), p 9.

2. AIM Yasuf, Ikhtilaf Abi flanifa wa Thu Abi Lay/ii-(1-1ydergbad :

Ihyn' al-Ma'arif, 1938), pp. 41-42. Ibn Haztn, Mu(rolla, VIII, 252-60.

3. Ibn Taymiyya, al-Qiyas, p. 11.

4.- Zurqani, Shari? Muwaffa', IV, 187. lbn Mangfir, Lisan, VIII, 23.

Thanawi, Kash.shaf, I, 137. Schacht, "bay", Encyclopaedia of Islam,

2nd ed. 1960, p. 1112.

5. Shafiq Shihata, Essai d' une theorie general de l' Obligation en Droit

Musulmane (Cairo : F. E. Noury), pp. 109-119 ; Schacht, Introduction,

p. 151.

6. Zurqani, Shark Niuwaqa', IV, 187.

7. Zurciani categorizes bay' with regard to bay' al-'ayn (thing, substance);

bay' al-clayn (obligation) ; bay' al-manfa'a (usufruct); - bay' al.sai!ii!

(regular) ; bay' al- fasid (irregular, improper). Ibid.., IV, 187.

Thanawi gives a detailed classification of buya` ; he says that

bay' is generally of three categories.

(a) With regard to the commodity (sir) there are four types of bay':

(1) Exchange of commodity against another commodity, called

simple barter or =may*.

(2) Simple selling for price (shaman), called bay' al-muflaq.

(3) Bullion or money exchange, called .Farf.

(4) Exchange of commodities to be delivered later for a price

paid in advance, called salam.

(b) With regard to price there are four types of bay' :

(I) When price is not considered, called musawama.

(2) When an increase or surcharge is given with price, called

murabaha.

(3) Resale at the stated original cost, tawliya.

(4) When price is with loss, waryà, i.e. resale with a rebate on

the stated original cost.


(c) With regard to the sound state or validity (.sihha) of bay' :

(1) Legally valid bay` sahib.

(2) Legally invalid bay`, like that of wine, or pork etc.

(3) Originally valid but irregular, Arid.

(4) Reprehensible (makrah), as selling at the time of Friday prayers. Kashshaf, I, 137.

8. Malik Muwatta', II, 691.

9. Ibid, II, 706.

10. Zurciani, Sharh Muwallce, IV, 350-351. The Zahirites like Ibn klazm hold that ijara is not a bay', for bay' does not create any martfaà. Ibn littzm says that ijara is valid for anything which possesses manfaà which can be hired, utilized, and its ̀ ayn (substance) is consumed. The things of which the ̀ ayn does not remain at all is not valid for ijara, for example, candles, food or water for drinking-which are all fit for bay` but not for hiring or leasing as in ijara. Bay` confers ownership of àyn while in ijara no such ownership of àyn is stipulated. Therefore, for Ibn Hum the deal of Khaybar was not a case of ijara, or lease or rent of land (Ibn Hazen, al-Mullane, VIII, 212-215.

11. Tabari, /khti/ef, 129.

12. Malik, MuwalfiGII, 703-704.

.13. Zan:01g, Shark Muwaga' , IV., 341.

14. Ibid.

15. Ibid., IV, 344.

16. Robert Brunschvig rightly observes that generally Islamic laws elaborated by the FuqaMV, such as public law, penal and fiscal laws etc., are the products of social reality which is reflected in the evolution of different schools of jurisprudence in Islam which came into being in different regions of the Islamic Empire-"elle est fille bon gre mal gre de la realite social; tantot invariante, tantat archaique, tantat novatrice et actuelle, une actualite parfois brulante au moment de la formulation des regles ou de leer fixation". ["Considerations sociologiqiie sur le droit Musulman ancien". Studia Islamica,111, (1955), p. 621.

17. Malik, MuwafIce, 11, 691.

18. Ibid., II, 689.


19. Ibid., II, 704.

20. Ibid 11, 705-706.

21. Ibid., II, 706.

2?. Ibid., II, 706.

23. Ignaz Goldziher, Muhammadan Studien, II, 214.

24. Malik, Muwat(a1, II, 708.

25. Ibid., II, 707.

26. Ibid.

27. /bid.

28. Ibid., II, 709.

29. II, 711-712.

30. See for details the fourth chapter

31. In this connection compare the following traditions in which tenants are made to bear all kinds of expenses : Ibn Wahb says that he asked

al-Layth ibn Sled about musaqat. The latter replied that musaqat was

based on the Prophet's Mucamala at Khaybar according to which the

tenants of Khaybar were given the date-palms and "white" land to till and work for one half of the total produce. The Prophet according to the report, says al-Layth, did not give any other thing

to the tenants.

Ibn Wahb says that Sa'id Ibn 'Abd al-Ralrnan al-Jumahi and other Medinese reported to him that the people (of Medina) had continuously been practising musaqat of date palms with the stipula-

tion that slaves (raqiq), or workers, draught animals and arcieultural implements of iron, which were commonly used in Alen tenancies, were provided by the person who undertook the contract of musaqat

(Sahnun, al-Mudawwana al-Kubra. IV, 4).

32. Malik, Muwand, II, 625-7 and 664-5.

33. Ibid., II, 618, 624-5, 665-7: Schacht, Introduction, pp. 146-7.

34. Ibn Hazen, al-Mahan( i, VIII, 253.

35. Ibid.

36, See the second chapter for details.

37. Al-Khwarizmi, Jute al-Masanid, pp. 77-81. Tahiari, p. 122. Abu 11anifa, Musnad Abi lanifa ; ed., afwat al-Saqqa (Haleb : Maktaba al-Rabi', 1962), p. 167.


38. Aba Yasuf, Khardj, pp. 88-9. Abu Yrtsuf, Ik.htildf Aba Hanifa wa Ihn Abi Layla, pp. 41-42. -cabala, IkItillaf, pp. 122-124.

Ibn Abi Layla (d..148/765) holds that nzitayage is valid as it is based on the model of Khaybar and the practices of AIM Bakr,

'Omar I, and other Companions, such as Àbd Allah ibn Masaid,

Òthman, Sa'd ib,n Abi Waqqas, etc. He also infers it from the analogy of nzadaraba (Abu Yfisuf, Ikhtilaj Aba Hanifa, p. 42). Tabari also tells us that the Syrian jurist Awzaa (d. 157/774) and Abu Thawr

(d. 240/854), an Iraqian jurist, considered inetayage invalid and reprehensible. The latter, like Abu Hanifa, denies that any mdtayage deal of nzazara'a was concluded by the Prophet at Khaybar. He allows mitsciqat in ag, i.e., fruit tree only (Tabari, Ilchtilaf, pp. 120, 122, 124, 129).

39. Tabari, /katibIf, p: 126.,

40. Ibid.

41. See the second chapter.

42. Schacht, "AIM Yasuf", Encyclopaedia of Islam, 2nd ed., (1960), 165.

43$. Abu Yiistif, Kharej, p, 88.

44. Ibid., pp. 89-90.

45. Ahmad ibn Ùmar al-Khassaf al-Shaybani, KING wa al- Makluirij (Hildesheim G, Olms, 1923), pp. 50 ff. •

Muhammad ibn al-Hasan al-Shaybani, Kitab al-Makharij fi al-Hiyal ; in two rescensions, ed. by Joseph Schacht (Leipzig : J. C. Hinrichs, 1930), pp. 19 ff. '

Abu Yrisuf, Kharaj, p. 51. Lokkegaard, Taxation, p. 174.

46. In connection with the aleatory tenancies of the genre of muizara ga the terms of fiisid (irregular, improper) and Mill (null and void) are used by the' Fuqaho' interchangeably.

47. Aba Yusuf, Kharaj, pp. 51-52.

48. Ibid., p. 29,

49. Shafiì, Umm, III, 251.

• 50. Ibid.

51. Shafia, Unnn, III, 241.

52. Shah'', nevertheless, allows /Ora of land against a certain food grain which does not grow on the leased land, or against any non-agricultural commodity ; or against money (III, 242).

53. Shafi'l, (Own, III, 237-238 ; Tabari, Ikhtilaj, p. 128

Development of the Substantive Law of MuzaraM 35!

54. Shafia ibid., Ibn Harm, al-Muhalla, VIII, 268.

55. Shafi`7, Elam II, 238-239.

56, Ibid., 111, 239 ; VII, 102.

57. Tabari, 1k.hrilaf, p. 140.

58. Shatia, Umm, VII, 101.

59. Ibid.

60. Ibid., VII, 102.

61. Ibid., III, 239-240. Tabari, lkht 11.1f, 120-121, 124.

62. Ibid., III, 238.

63. Ibn Hazm, V111, 252-53.

64. Shafiri, thrum III, 240-41.

65. Ahmad ibn Hanbal, Kitab al-lendm Ahmad ibn Hanbal,

compiled by Aba Da'fid (Cairo : Matba'a al-Manar, 1934),p. 200.

66. Ibid.

67. It must be mentioned that according to the Shiite theory of land

tenure agriculture is the best profession, and the agriculturists are

the best of mankind (a1.-zari• an kunur, m(am), for they cultivate

what is pure ((ayyab) which God causes to grow. On the Day of

Judgement cultivators will find themselves in the best place and

nearest to God. Muhammad ibn Ya`qab al-Kulayni, al-Kafi

(Tehran: Maktaba al-tidaq, 1957), V, 261.

According to the Shiites, nzuraraà, galxila, and lease of land

for money are all valid and based on the model of Khaybar (ibid.,

266). The primitive tenures in which Ian] was leased against food

or against produce of certain parts of the field arc not valid (ibid.,

264-266). OM/I/a-tenancy is lawful but qabala of tax-farming is harden,

null and void (ibid., 271-272). Also see al-Muhaqqiq

Shard'? fi al-Fieth al-Ja'fari (Beirnt : Dar Maktaba al-

Hayat, n.d.,),. I, 221-26.

68. See their definitions by Ibn Hum given in Vfiejanz Firth ibn Harm al-

?Ohiri (Damascus: JamPa Dimashq, 1966), 930ff. 955 ff. 949 ff. Ibn Hazm

objects to the use of the term nu/sac/tit which, according to him, has

not been related by anyone from the Prophet nor from any of his

Companions (al-Mulyilla, VIII, 268).

69. Ibn Hazm, al-Mnhalla, VIII, 245.

70. /bid., VIII, 259-262.

71. Ibid„ 262.

352 Landland and Peasant in Early Islam

72. Ibb Hazm, Mulakhkhass iblal wa al-Ra'y (Damascus: Jami'a Dimashq, 1960), pp. 5, 37, 41-42. Ibn Hazm,

al-Dikem ji weal al-rihkam, edited Ahmed Muhammad Shah- (Cairo : Maktaba al-Khanji : 1 926-29), VIII, 3 ff. I Goldziher, Die Zahiriten (Leipzig : Otto Schulze, 1884), pp. 207-8, 117 ff.

73. Mu Hazm, ak/Lfulfalla, VIII, 252-260. 74. Ibid, 248.

75. Ibid., VIII, 248.

76. Ibid., VIII, 261.

77. Ibid, VIII, 263.

78. /bid.. VIII, 264.

79, Ibid., VIII, 264.

80. Ibid., VIII, 265.

81. Ibid., VIII, 266,

82. Ibid., VIII, 268.

8; Ibid.; VIII, 220.

84. !bid , VIII, 286.

85. Ibn Taymiyya says that ijara, in the sense of hiring someone for an indetermipe and non-existent (ma`dem) wages or profit, may involve two types of transaction or sale : ijcira of 'ayn (material substance), and ijara of manja'a (usufruct). He claims that he derives his concept of flora from the Queanic verse (65:6)

"Fa'in arcla'na lakum fa'atahunna 'ujarahunna, that is, then if they (divorced women) suckle for you,

give them their wages". Ibn Taymiyya disagrees with those Fuqaha' who hold that this /Ora for suckling is an 'awl for milk and milk is an 'ayn and not a manfa'a.

He says that this is the only example of a valid tiara in the Qur'an, and inspite of this fact, he says, these

Fuqaha, think that this milk-ijara (ijarat al-zi'r) cannot be deduced through analogy, whereas this tiara is a clear ?toss in the Qur'an (al-Qiyas,

pp. 30-31). Thus he rejects the postulate that a legally valid ijara can only be contracted for manfa'a of a substance and not for the

substance itself. He says that this theory of the Fuqaha' is not based on the Qur'an, ijmac Sunna or qiyas (al-Qiyas, pp. 46 fn. He

explains that the substance, which gives birth to new objects and things (like a tree which bears a fruit) while enduring by themselves, must be treated in law just like their

tnanall', as a tree and its fruit, an animal and its milk. All these substances have one common factor of manfa'a-this manfa'a

is produced and created. It is the only purpose and intention of a contract-it is an exchange of an


object for another'object whether the hadith (produce) is an 'ayn

a manfa'a, or whether it is a quality or material quantity. In law there is no difference between the two as far as application of law is concerned. It follows then, says Ibn Taymiyya, that these things

can be contracted for an ',Ma, whether in food, or cloth, or a woman who suckles a baby and gets food and cloth as wages, (Ibid., pp.

47-48).

86. Ibid., p. 7.

Also see Henri Laoust, Essai Sur les Doctrines Sociales et Politiques de Taki-d-Din Ahmed B. Taymiya, (Cairo : Imprimerie de I' Institut

Francais d'Archeologie Orientale, 1939), pp. 242-43. 442 ff.

87. Ibid., pp. 9

88. Ibid., pp. 10-11. In a detailed statement (ibid., pp. 7-12) Ibn Taymiyya

elaborates that labour and capital may be associated with each other :

(a) When the nature of the work to be done is known precisely in terms of its objective, time etc., at the time the worker is

employed. It is called Ultra lazima, i.e., mandatory contract

of hiring labour.

(b) When the work to be done is known, but it is intended without precise and clear terms, in an aleatory capacity. It is called ju'ala.

It is a valid contract but not mandatory, for example, the contract

in which a person is asked to catch a runaway slave for one

hundred dirhems. He may or may not catch him ; if he catches

him he gets his contracted wages, if he does not, he gets nothing. Or when the commander of an army announces that if anyone shows him the way to the enemy stronghold, he will get one third of the booty therefrom. Or the fee of a doctor if he cures

a sick person ; if not, he gets nothing. These are all contracts

of julala and are not of mandatory nature.

(a) In the third category, labour is not intended for itself in the primary sense but is mainly hired in association with capital for the sole purpose of earning profit. Such is the contract of

mugaraba in which the capital, owner does not intend merely

labour of the worker for itself as in the //ea/a-contract, or the

hired servant musta'jir for doing a certain type of work-the

workTt is entitled to get his contracted wages-no more and no

less. In the partnership of musharaka on the contrary, the profit

basically accrues to the capital (and not to the labour of the

labourer as in ju'a/a). Whatever profit is earned, it is shared by

them. This is the reason why it Is not permissible for either of

them to appropriate this profit for himself ; this will be against the principle of equity which is essential for the contract of

Landlord and Peasant in Early Islam

partnership. Now this element of inequity was the main

characteristic of the primitive tenancies in which the landlord

appropriated almost the entire crop grown on the more fertile parts of the field. Because of this the Prophet banned these

tenures. This was the opinion of the Egyptian jurist al-Layth ibn Sa`d too who had remarked that any person who had insight into the-matters of halal and harant (legal and illegal) knows that such primitive tenures (which reduced the tenant to a mere serf of the landlord) are not permissible in law. This prohibition, says Ibn Taymiyya, makes qiyas obligatory on the jurists. So muzara'a

and musdqcit-contracts can analogically be deduced from the parallel institution of tnagaraba.

Ibid., p. 12.

CHAPTER IX

CONCLUSIONS

The origin and development of the classical theory of

muzara'a (metayage, sharecropping), which has been described

in the preceding pages can be characterized to have been a

creative product of the Fugahres speculative intellectual activity

and the socio-economic reality. The legal theory of muzara'a

and the related socio-legal concepts of land-tenure were

developed and systematized by the Fugahle in the 2nd/8th

century, starting with the administrative practices of the Umayyad

Caliphs and their governors. The rudimentary elements and

nebulous ideas and notions of these theories were present in the lst/7th century, before and after the Great Conquests of the

early decades. The substantive legal doctrine of muzara'a how-

ever evolved spontaneously with the over-all growth of the

Muslim Community ; it was the result of a complex process of

Islamization and systematization of diverse systems of customary

tenure—a process in which the jurists-traditionists reflected on the

data of the contemporary tenure systems and deduced generalized

laws of landholding for the Ultima.

The Umnia began as a religious community in the Hij52 and

evolved as a complex social organization. As it expanded, it sought to conquer new lands. The early conquests of the

lands of Band Nadir, Band Qurana, and Khaybar etc. raised fundamental questions as to how to dispose of the lands. No

consciously formulated method of organization and social

control was developed in this connection ; for decisions were

taken mainly as ad hoc measures ; some lands were made wagf

(public or mortmain); while a few , were distributed among Muslims. During this early period, as our evidence shows, under

the Prophet and later under the first Caliph Aba Bakr an

economic regime of egalitarianism was established which was


fundamentally based on the principle that Muslims as members of the Umma were generally equally entitled to wealth and privileges accruing from the conquered lands. But no frame-work of political institutions was developed to sanction and

ensure common ownership of these lands, except that a strong moral consciousness pervaded the Community.

In the klijazian milieu of primitive tenures Muslims were

morally exhorted to lend their lands free to the needy Muslims for the purposes of cultivation. This system of primitive tenures was in general characterized by inchoate and precarious land-

holdings in which the shares of the landlord and the tenant were

not precisely determined ; the entire system was ruled by a

regimen of custom and compulsion rather than based on the freedom of contract. In the natural course of social affairs when the Umma embarked on territorial conquests outside the 'Arab Peninsula, the problem of land tenure became more complex. After the more fertile provinces of the Byzantine. and Sasanian Empires had been conquered, 'Omar ibn a l-Khattab, the

second Caliph, immobilized them for the benefit of all Muslims : he fomulated the concept of common Jays-lands according to which all conquered Kharaj-land was declared a way° or mortmain for all Muslims.

Many explanations suggest themselves for this policy. The available evidence points to the fact that this was done for two

basic reasons : first, to check Muslim conquerors from becoming absentee landlords, and, second, to . ensure maximum revenues and rents for the Islamic State and the Mugatiia, the fighters. Their division among individual Muslims would have resulted in reduced revenues as this would have transformed Khariiklands (which usually paid from one-half to one-third or oneafourth of the crop as tax or rent), into private tushri or tithe lands.

Untill recently, before Frede Lokkegaard, Werner Schmucker

and Albrecht Noth put forward their theses, there was a unanimous agreement among the scholars—both medieval and modern—upon 'Umar's immobilization of all Kharaj-lands.

Conclusions 357

Disregarding all the indisputable evidence in the early literary

sources-, these authors claim that all conquered lands, except

sulk (lands taken peacefully with fixed tributes), and sawafI

(abandoned Crown, dynastic or state lands) categories, were

distributed among the conquerors not only under `Umar I but also under the Prophet himself. They also assert that the theory of common fay'-lands has no relationship with the Qur'an and the pristine period of Islam. They explain that the

pro fay' traditions emerged later under the Umayyads with two clear motives : as a support of and as a reaction against the strong political and financial policies of the Umayyads. The

"common fay' " traditions backed the state ownership of Kharaj-

lands for augmenting the state revenues. This thesis is not supported by any adequate evidence which is to the contrary.

This explanation ignores the fact that the idea of fay'-lands emerged gradually from the conquest of the lands of the Bann

Nadir to the conquest of Sawad and other territories ; nor do these authors apply the same logic of higher revenues to the case

of ‘Umar I. Indeed, the situation after theonquests was highly complex and this needs a thorough and painstaking research to find out the changes brought about in the status of landholdings

immediately after the Conquests. These authors, however, remarkably underline the developments in the theory of fay'-

lands under the Urnayyads, who changed the entire concept of

fay', but they do not do justice to the pre-Umayyad period.

Our study has two main parts ; the first part develops the

theory_of fay' in general and other related concepts ; the second-

part studies the development of the substantive law of muzara'a

elaborated by the Piga& . Our investigation points to the

conclusion that the idea of fay'-lands was nebulous in the early period ; it emerged gradually when vast lands were conquered

under `Umar I. Under the Umayyads the idea was more sharply defined as state lands, after, the notions and institutions \of the

former Byzantine and Sasanian Empires had recrudesced. In the gradual process of integrating and assimilating various

elements; concepts, ideas and attitudes' into an emergent

Conclusions 359

though more casuistic in his legal .philosophy, closely follows

walk and rejects muzaraà.

Abu Yusuf and Muhammad al-Shaybani, on the other

hand, give a liberal interpretation of the Hadith material per-taining to muzara'a and musaqat. They hold that muzaraà,

musaqat and kirre abard are all valid in law and analogically

deduced through the institution of mudaraba. Abu Yiisuf

discusses the problem primarily in the context of 'Iraq. The

economic conditions in 'Iraq which formed his basic data were

much more developed than those of the Hijaz, but basically

his problem was the same as that of Malik. The latter was concerned with the customary tenures of the Hijaz, while the

former was observing the complex material of 'Iraq. This explains why Malik rationalized only musaqat and money-rent,

while Abu Yiisuf extends the area of legitimization from musaqat

to muzara'a and money-rent. Moreover, there was no Kharaj-

land in the Hijaz where the theory of kharaj muqasama (a

certain share of the crop due to the state as land tax ()hid for the usufruct of land) could develop : maiik even denies that musaqat

is a kind of ijara (letting, leasing, or locatio-conductio).

The theory of kharaj mugasama and its corollary of state-muzara'a originated as an incidence of conquest and as a

consequence of enserfment of dhimini serf-tenants and share-

croppers who formed the majority of the population and paid

revenues to the Islamic state. The theory of muzaraà, as a

consciously formulated administrative principle, was further

elaborated under the Umayyads ; at the later stages of the

development of this doctrine, the model of Khaybar (where

according to the general hypothesis of the jurists the Prophet

had concluded 'a mitayage contract with the tenants of Khaybar)

and the muzaraà-traditions, instead of functioning as methods

of investigation and conceptual tools for the jurists, tended to be

used as vehicles for various political-legal opinions and positions.

Consequently, originality and creativity characteristic of the early

jurists like Abii Hanifa and Malik became effete and the

spontaneous growth of law was arrested.


"Islamic" agrarian system inevitably individualistic tendencies

asserted themselves which' were based on the institutions of matayage, tax-farming, and the Persian theory that state was the

ultimate owner of all land and that taxpaying dhimmis were tenants.

The socio-economic and legal relations and arrangements

embedded in the customary forms of tenure constituted the raw

material on which the jurists, representing tendencies and aspirations of their respective times, reflected and deduced the

laws of land-tenure which are subsumed under the two-fold

rubric of muzeira'a (grain-mdtayage), and,musaqat (fruit-metayage).

The substantive doctrine of muzara'a developed spontaneously,

as it was elaborated within the general framework of Islamic

it Jurisprudence, on the basis of the legal methodology of qiyds,

i.e., systematic analogical reasoning. Abii. Hanifa, whose

approach to the problem of muzara'a was idealistic, refused to

deduce the law of mOtayage through the analogy of another

parallel institution of mudaraba or. qirad (sleeping partnership in

business). He denied that the system of mitayage could be

validly based on the Sunna of the Prophet, thus rejecting it

altogether. He underestimated the role of social customs in the

sphere of land-tenure.

Malik ibn Anas, the Medinese jurist, basing his theories

of musaqat and money-rent on the customary practices of Medina

and Sunna of the Prophet validated fruit-mglayage but rejected

muzaraà, considering it an aleatory transaction which character-

istically involves uncertainty and sale of future values. He

endeavours 'to enlarge the area of contractual relationships

between landlord .and tenant by developing his theory of money

rents in the context of primitive tenures marked by a "natural

economy" in which land was generally leased against food or

in kind.. For Malik, then, the important sources of Islamic land

laws are : local custom, reasonable social necessity, interpre-

tative and speculative activity of the jurist, and Sunna of the

Prophet. Thus, fundamentally the system of muzara'a is not

valid for Abii Hanifa and Malik. Muhammad ibn Idris al-Shafl'i


The earlier Fugahte, in theory at least, made the serf-tenants independent human beings with rights of their own : metayage was made an enforceable legal contract ('aqd) binding on both landlord and tenant. This is a remarkable feature of the Islamic

law of obligations. However, as we .saw in detail, in actual practice tenants and sharecroppers more or less remained attach-ed to the soil they tilled. Motayage constituted a socio-economic

system under which economic status and authority, in general, were associated with and based on the system of land-tenure. The cultivators were under obligation and compulsion, by law and by custom, to pay to the landowner, a certain share of the crop. In other words, the feudalistic autocratic regimes of medieval times were based on a predominantly subject peasantry.

Before we embarked on our exercise we had no pretexts to provide an economic history of the institution of metayage in

Islam, but whenever we felt necessary we did appeal to historical data to clarify some important points which may bear relevance to some modern problems. Without pre-

judging the problems of Islam's economic ideology, that is, ideas, beliefs, values and attitudes concerning economic life—whether this ideology promotes a system of laissez-faire or that of a totalitarian nature—it must be said that the Muslim feudal regimes of medieval times and even many Muslim states of

modern times can be seen to cqntain and encourage elements and ideas of an economic system ba.ed on metayage and other specu-

lative institutions, such as the system of riM (interest/usury),

whereas the fundamental ethico-economic principle, of early

Islam was that all economic transactions involving future values of commodities and all speculative dealings were null and void. It implies that any economic system which thrives on specula-tion and allows exploitation of man by man is inherently an

anathema to Islam's basic teachings.

Before we conclude, some suggestions for future research in the problem of tenure may be noted. A thorough study of those Companions and Successors who settled down in the newly conquered territories, acquired lands, and practised metayage,

Conclusions 361

may be made within the context of their socio-economic relations with the dhimrnt tenants. There is abundant material in the biographical literature which still remains unexplored. Further, a study may be made of the legal-economic traditions to discern the early socio-economic development of Islam. A thorough investigation of the problem of ribs is over-due. This _ problem must be studied in the context of its pre-Qur'anic and post-Queinic phases ; its relations with other similar concepts, like those of gharar, mukhabara, and muzara'a must also be dliheated. The concept of sulle-land also needs an independent

study : individual cases of sulle-lands may be studied to find out the exact status of this category of land. Schmucker's studies are fundamental in this connection. Similarly, individual cases of can also be studied to 'ascertain their origins and developments.

The post-classical development in the theory of muzarcea needs a comprehensive treatment .; it must be studied in relation to the overall economic and political developments in the Islamic

world during the later medieval period. For instance, the mitayage theories of Muhammad Ahmad al-Sarakhsi (d. 483/1090), the prominent Hanafite jurist, needs a detailed treat-ment. So is the case with Barham al-Din al-Marghinani (d.

593/1197). This subsequent development of the doctrine of muzarcea could provide us with a clear and fuller statement of the Hanafite exposition of the problem. In the same way studies on Maliki, Shafi'i, Hanbali and Shi'i contributions in their respective schools of legal thought could be profitably made

subjects of separate studies..

The institution of metayage in the modern Muslim states can

be studied• in its broader ideological and social frameworks, for millions of agricultural labourers and tenant-sharecroppers still lead a miserable sub-human life which needs special treat-

ment in any scheme of land reforms and national reconstruction.

GLOSSARY

A

Mbd (àbtid), slave, serf.

'ddiyy al-ard, abandoned, "dead" lands without owners, see

mawat,

adscripticii glabae, serf-tenants (colon!), registered and attached to the soil, in the late Roman/Byzantine

Empire: See colon!.

'afa'a, (God) made return land to the Muslims (Qur'an, LIX

6-10). See.fdy' .

Mfw, anything surplus to one's needs ; remaining over and

above what is expended.

agri desert!, abandoned lands in the late Roman/Byzantine

Empire. ,

Mhd, peace agreement, contract of treaty. See nnfahada and

mu` ahad,

'ajama (cijam), forest.

'ajr ('ujur), remuneration, wages, recompense.

'ajir ('ujara), labourer hired for certain wages. See mustajir.

akkdr (akkeirOn), ('akara), ploughman, tiller, agricultural labourer.

`canal, work, labour.

Mmala, `Tanitan), viorker, labourer, tenant, tiller.

catnir. cultivated land.

Glossary 363

Mnwa-land, land conquered by force of arms , without any

agreement.

Mad ('uqud), legally enforceable contract entailing mutual obli-

gations.

ard (aradi, aradun), land, agricultural land.

and baydre , "white" or bare land without fruit trees.

ard-mayyita, "dead" land, uncultivated, abandoned land. See mawat.

Mriya (àrclya), palm tree assigned to a poor person as an

exception to the aleatory sale of muzObana, see.

'asif (ùsafre), hired labourer.

'asl (usul), substance, capital, stock, material base of uit-matayage, fruit-tree.

'athar ('athar), report, tradition usually from a Companion or a 'Successor.

Oiyat, allowances, stipends.

'ayn (a`yan), material substance, ready money, property, fruit tree. Opposite of manfeta, as fruit is a manfa'a and fruit tree an Myn.

Mzima, a generalized compulsory law. Opposite of rukhsa, see.

B

bane al-àllot, sons of the same father by different mothers.

bald'!", swamps.

Mill, null and void.

bay' (buyu'), sale, purchase, economic transaction, exchange.

bay' al-gharar, aleatory sale, sale of risk or chance ; sale of a thing which is not present at hand.

Bayt al-Mal, Public Treasury, Fisk, exchequer.


C

colon( (colonus), cultivators, tenants of the late Roman/Byzan-tine Empire.

Colon( adscripticii, see adscripticii glabae.

Coloni partiarii, tenants who paid their 'rents in shares of the crop known in Islamic law as kharaj muqasama.

Conductores, tax-farmers in the late Roman Empire, known as mutaqabbilan in Islamic law.

D

cloak; tenant, sharecropper, worker.

kman, responsibility or surety for property promised by a tax-farmer for collecting revenues of a district. See qabcila.

dar aPand, Lands over which there is an agreement between the Muslims and the non-Muslims who make the agreement.

day a1-{garb, the lands of enemy of Islam.

dar al-Islam, the land of the'Islamic state.

darara, reasonable social necessity.

dhimmi, protected non-Muslim living in dar al-Islam.

dukhal al-ard, purchase or lease of Kharaj-land by a Muslim which was originally banned.

dhull, subjection, humiliation.

E

emphyteusis, perpetual lease of land under the Byzantines.

F

fallah (fallahan), peasant, tiller.

Glossary

365

faqih (fuqahal, jurist, lawyer.

far`, (frau% branch, applied rule or detailed law.

fasad, corruption, irregularity.

fasid, improper, irregular.

fath, ( futal)), conquest (of land).

lamp, held in common, not divided.

fay', booty, conquered land.

Fiqh, Islamic law, jurisprudence.

ghalla, income, revenue.

ghamir, non-irrigated, uncultivated land.

ghanima, booty.

gharar, risk, chance, hazard. See khaki, and qimar.

H

Obi, hubs, habis (ahbas,), mortmain, public endowment. See

waqf.

halal, legal, permissible.

Hadith, a transmitted narration of what the Prophet said, did, approved or disapproved ; sometimes of a Companion or a Successor.

1saql (ljuq4/),cultivated, fertile field. See muhakla.

Karam; illegal, unlawful,

hima, protected commonland which cannot be made private property ; a private enclosure.

karma muharrama, inviolable right.

Glossary 367

I

tabjir, delimitation of a field intended for cultivation.

al-mawat, bringing of "dead" land to life ; cultivation of a waste land in order to acquire its ownership.

ijab, offer for sale of an object \in a contract.

Ultra, hiring, leasing.

//We, consensus.

aftihcid, use of individual reasoning ; discretionary opinion.

ikhtilaf, disagreement on a problem of applied law.

`ilia, ('lk!), reason, ratio legis, common element of resemblance

in subject and predicate of an analogical proposi-tion.

Imam, religio-politiqal leader of the Muslim community ; public authority.

igta', grant of a private estate.

later irfag _ iqta., istighlia IOW of benefice or usufruct. See lap'.

igta` tamlik, grant of (age for private ownership.

irtificig, public utility..

`irg Slim, unlawful cultivation of a land already occupied rand cultivated by another, person.

isnad, authoritative chain of transmitters of a Itadith.

isti' that. al-fay', monopolization of fay'-lands.

istithnas , exception to a general rule.

S

Jizya, tax, poll-tax.

(lei, wages, recompense.

Ju'ala, wages, reward.

juzaf, at random, when things are exchanged without specifica-

tions of measure, weight, or number ; undetermined

quantity.

K

khabar, (akhbar), report, tradition, Hadirh.

kharaj, income, revenue, land-tax (on non-Muslims, being a

rent for utilizing land belonging to the Islamic state.

kharaj mugasama, tax as certain percentage of the crop.

khars, rakhris, assessment, estimate of a crop still in growth.

khakis, risk, hazard. See bay' al-gharar.

khiyar, option, choice, right of rescission.

khibr, see mukhilbara.

khubra, share,

khums, khumus, one-fifth of booty.

kira' al-ard, lease or rent of land, against a fixed sum of money,

or in kind. See also mu'ajara and mu'akara.

L

locatio-conductio, leasing, letting, hiring.

M

madda, material possession, source of income.

malnala (mabaqiI), sown field, argricultural land.

mai (amwra), wealth, stock, capital, land, property, possession,

landed estate. In legal terminology mal is an



exchangeable or marketable title or right to something ; res in commereio.

manfa'a (mandfr) advantage, yield, utilization of a material

substance, or of right ; usufruct.

mansakh, abrogated.

tnaslaa (masalila), interest, welfare.

mawat, mayyita, "dead" land ; uncultivated and waste land.

mazrce (muzetrig), sown field, cultivated land.

milk, ownership, possession..

mirfag, beneficial thing, utility.

mis4a, measuring, surveying of land, taxing per unit of area.

Inu`ahad, a non-Muslim between whom and Muslims there is an agreement whereby the Muslims become responsible for his security ; he pays tax to the Islamic state ;

sometimes also retains his land in his possession by

agreement. This covenant or agreement is known as mu'ahada.

mu'ilhada, see mteahad.

mu'akara, a contract in which a landlord leases his land to a tenant for a fixed sum of money, or anything else, usually paid in advance.

mu'akara, see mu'akara.

mtatmala, economic transaction ; lease of land or a fruit tree for money, in kind or for a share of the crop.

mteli ada, barter, exchange, a commutative contract for exchanging equivalent values..

mulwama, lease of land or a fruit tree against anything for a number of years.

Glossary 369

mubadhara, agricultural contract in which seeds (badhr) and

other things are provided by the landlord, the tenant receives a mere sixth or seventh part of the

produce.

mubilyaca, agreement for exchanging certain objects.

mudaraba, business partnership in which capital-owner provides capital to a worker for a certain part of the profit.

Loss is borne by the capital-owner. Also called

glad and mugdrada.

mugitarasa, lease of an orchard to a tenant who irrigates and works for a certain share of the fru'i or the fruit

tree.

mullagdig, lease of land for food ; exchange of grain still in the

ear ; also called 1zaql.

mukhabara, lease of land against a certain part of its produce ;

also called khibr.

mukhddara, sale of fruit or crop before it has ripened.

mukhatara, sale of chance. See bay' al gharar.

mull-image, barter in which objects exchanged are touched by the parties at the time of transaction.

munabadha, barter by throwing goods to each other without seeing the objects exchanged.

mugarada, girad, see mudaraba.

muglisama, tax or rent of land proportionate to the yield, as one

third or one fourth of the produce. Also see

kharaj mugasama.

mugatcect, tax as a fixed sum of money.

mugatila, fighters, Muslim soldiers.

mugite, recipient of an igtd`.


mursal, a Hadith which lacks the first transmitter.

musdhama, a joint partnership.

musalalta, peace agreement.

mustiqat, lease of a fruit tree, or an orchard for irrigating, fecundating and protecting fruit trees for a certain share of the fruit.

mustigt, a tenant who takes a fruit tree on a musiiwE-contract, for irrigating it.

musharaka, joint partnership for sharing profit or loss.

mustajir, tenant, lessee.

mutaqabbil, one who undertakes the contract of qabila or tax-farming.

mutiasil, a Hadith connected to the highest authority.

muzabana, exchange of dry dates, raisins etc., for dates or

grapes still in growth, without specifying weight, measure, or number, against an object which is specified.

math- flea, lease of "white" or bare land for a certain part of its produce ; mitayage, Sharecropping.

muzari`, (muzart`tin), sharecropper, tenant, cultivator.

N

natal (anfal), supererogatory share over and above a regular share, given for gallantry.

naql tawatur, authoritative transmission of Hadith by numerous Companions of the Prophet.

naskh, abrogation, repeal.

nass, explicit text entailing obligation.

Conclusions

Q

qabcila, lease of land, tax-framing.

qabdl, acceptance of an offer of sale in a contract.

qahran, by force of arms.

qartilh agricultural field.

qati`a, (qatcit), parcel of land given as private estate.

qtrail, see mudaraba.

qiyas, systematic deductive reasoning of analogy. ■

R

rabb al-'asl, sahib al-ard, landlord.

rabb al-asl, owner of capital or fruit tree.

raqabat al-ard, ownership, possession, of land.

raqiq (ariqqa), slave, serf.

ribd, usury, interest, any profit unduly excessive.

rib', profit, gain.

rigab, control, ownership.

rukhsa, exception to a general law of ban ; opposite of ‘azima.

S

sadaqa, charitable gift or public property ; mortmain.

sadaqa mawqufa, inalienable public property

sadaqa,mulsarrama, inalienable endowment. „

safiy, safiya, share taken by leader of an army before division

of booty.

safiya (sawilfi), state land, crown land.

371


saghar, subjection, humiliation.

Aar', Sharra, the socio-religious law of Islam.

Sunna (sunan), BIBLIOGRAPHY practice, normative custom ; normative sayings and practices of the Prophet, Companions, and the Successors.

Original Sources

tallra (patrocinium), protection sought by a small landlord from a big landlord by integrating his land to the large estate, and thus usually becoming his tenant.

jasq, tax.

(,tztam), food, food-share.

U

'ujra, recompense, wages, hire price.

ù/fij ('ilj), tillers, tenants, serfs, rustics.

Ultima, community, Muslim community.

ùshr-land, tithe land.

'Usul al-Fiqh, roots or principles of Islamic law.

w

waqf, (aw9af ), land for public use. mortmain, pious foundation, immobilization of

Zakat, poor-tax.

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INDEX

A

Àbbas ibn Àbd al-Muttalib, 127, 138, 257

Àbbasids, 74, 232, 238-44, 295-302

Abbott, Nabia ; 7, 8'

'Àbd, 69, 71

Àbd Allah ibn 'Abbas, 7, 17, 21, 25, 63, 76, 96, 97, 104, 216,

217, 218, 287, 289, 291

Àbd Allah ibn Àmr ibn 7, 207-8

Àbd Allah ibn Mascad, 84, 86, 89, 92, 93, 104,

204, 218, 258, 266, 267,

105, 269,

140, 289-90

195,

Àbd Allah ibn Mubarak, 292

Àbd Allah ibn Mughaffal, 266, 267

Àbd Allah ibn Rawaha, 64, 76

Àbd Allah ibn Ùmar, 5, 7, 18, 20, 21, 22, 28, 29, 30, 62, 63, 76, 77, 84, 85, 86, 96, 97, 102, 104, 216, 287,

289

Àbd al-Viziz, 139

Àbd al-Malik, 139

Àbd al-Malik ibn Habib, 98

Àbd al-Rahman ibn Abi Bakr, 212

Àbd al-Rahman ibn al-Aswad, 89

Àbd al-Rahman ibn Àwf, 65, 188

Àbd al-Rahman ibn Yazid, 89

Àbd al-Razzaq, 62

Àbu al-Àbbas, 238

Abu Bakr, 8, 63, 71, 76, 83, 84, 99, 137, 151, 181-3, 185-7, 211,

234


Abu Bakr ibn 'Amr ibn klazm, 8

Abu Datad, 21, 55, 65, 94, 122, 137

Abii Dharr al-Ghifari, 36, 48, 49

Abu klanifa, 9, 13, 19, 21, 23, 57, 68, 69 70, 72, 77, 78, 85, 86, 100, 197, 198, 291, 292, 294 ; on muzaraga, 323-25

Abu al-Huqayq, 55

Abu Hurayra, 28, 29, 64, 83, 96, 97, 98, 137, 140

Abu Ja'far, 78, 84, 89, 91, 92, 104

Abu Musa al-Ashàri, 266 Abu Ruwayba, 88

Abu Sufyan ibn Harb, 156, 257

Abu Sa'id al-Khudri, 17, 28, 29, 96

Abu Thawr, 10, 25

Aba tObayd, 37, 55, 56, 57, 58, 119, 124,'129, 140, 183, 185, 188, 190, 194, 206, 209, 216, 218, 231-2, 267, 268, 269, 286, 287, 291; 292, 293-94

Abu `LJbayd ibn al-Jarralt, 194

Abu Ya•la, 92, 265

Abu Yasuf, 10, 14, 25, 54, 55, 66, 70, 75, 77, 78, 80, 85, 89, 124, 125, 151, 188, 192, 197-8, 217, 241 ; on muqdsama

and qabdla, 295-302 ; on muaraà, 325-330

Actores, 288

Adhrub, 209

Adscripticii Glebae, 39

Aft a, 114-129

Africa, 166

Àhd, 60, 68, 200

Ahl al-qura, 119 .

Altmad ibn Hanbal, 2, 21, 25, 55, 85, 122, 336-40 on muarcra, 336-40

Abmad Muhammad Shakir, 5, 186

Ahwaz, 205, 210, 211, 212, 213, 214, 215

Aila, 209

Index 391

al-, 8

Akkar, 19

Ali ibn Abi Talib, 8, 40, 57, 84, 89, 91, 127, 138, 188, 191-2, 194, 203, 216, 218, 234, 266, 267, 291

Àll ibn Harlin al-Rashid, 242 Jawad, 24

àmala, 75

Àmawas, 99

Àmii, 9

À-mir-lands, 263-64, 265

'Amr ibn, al-Às, 207, 209, 239

Àmr ibn Dinar, 29, 78, 85 Anas ibn 'bad, 62

Anas ibn Malik, 7, 8, 76, 141

Annona, 153 Ansar, 77, 87, 130, 133-4

Antaeopolis, 156

Anashirwan, 169

Anwa, 123, 141

Ànwa-land, 117, 124, 133, 191, 194-216, 267-68

4210,11, 64, 101, 200

APAqiq, 257

Arabia, 74

Armenia, 151

Al-aril al-'ildiya, 245, 266 Ard baydr , 9

Ard mayyita, 245

Ard al-`11shriya, 245 'Ariya, 103

Asad, 240

Asbahan, 210 Asravan, 168

'Aka', 20, 31, 90


'Ata' ibn Sa'ib, 123

ktiyat, 189, 193, 209

Awzari, 'Abd al-Rahman, 9, 25, 31, 85, 218, 292

`A'ysha? 182

Index 393

Bukhari, 21, 25, 62, 87, 94, 95, 96, 138

Bury, J. B ; 156

Basra, 209

Byzantine agrarian regime, 151-167

C

Badr, 54, 121, 128

Bajila. 201, 205, 206

Baladhuri, 57, 58, 59, 130, •134, 141-2, 207, 211, 240, 241, 243, 269

Bahia', 156

Baniqya', 201, 267

Band Nadir, 53, 54, 118, 119, 120, 125, 128, 132, 133, 134, 138-9, 184

Band Qaynuqa`, 53, 118, 120, 128

Bain Qurayza, 118, 125, 199

Basra, 213, 240, 241, 242

Data'ilj of lower 'Iraq, 242,

Baydawi, 131

Bayhacii / Abtl Bakr, 6

Bayt al-Mal, 122

Bay', 313-14

Bay' al-kharar, 12, 45

Becker Carl, H ; 2, 187, 190, 266

Bell, 11.1 ; 164

Bell, Richard ; 120, 128

Bellefonds, Linant de ; 248

Bilal, 88, 188

Bilhib, 208

Bi'r Hajar, 182

Blaehere, Regis, 119

Bucellarii, 155

Caetani, L ; 61

Christensen, A ; 167

Chrysostom, John ; 157-58

Civic estates, 157-62

Clausing, R ; 160

Colonate in the Byzantine law, 158-62

Coloni, 39, 61, 157-:8

Common fay'-lands, 117, 135

Conductores, 164, 288

Constantine, 159

Curial; 153

Daman, 288

Damascus, 202, 269

Dar al-Plarb, 140

Darara, 72, 103

D5.11d ibn 'All, 238

Dennett, Daniel, C ; 2

Dhimma-land, 187, 189, 201-10, 214, 216, 217

Dhimmi, 59, 188, 196, 202, 216, 289, 294

Dhull, 218 ; theory of, 267-70

Dihgans, 168-9,.190

Dinawar, 240

B

394 Landlord and Peasant -in Early Islam

Diocletian, 157, 159, 161-2

Dtwrm, 193

Diyar Mudar, 240

Dlyti` al-Khillfa, 242

Dakhla fi al ard, 92, 291

al-Jandal, 209

al-Da,r1, 205

Economic policy of Abu Bakr, 181-3

Egypt, 125, 151, 188, 190, 207-8, 210, 267, 269; Byzantine Egypt. 153-56, 164

Emphyteusis, 155, 165

Emphyteutic leases, 166

F

Fadak, 57, 61, 76, 118, 134, 137, 138-9, 186, 209, 239

Fallal,an, 191, 202

Fars, 210

Fatima, 57, 137

Fattal, A-; 61

Fay', 33; 36, 37, 54; 74, 85, 92, 105, 117-132, 133, 135, 136, 137, 140-1, 142, 181-2, 183-4, 186, 187-94, 203, 231-2, 236, 238, 267, 293

Fay"amma. see common fay'-lands

Fay'-verses, 119, 120, 121, 124, 127, 130, 140, 185, 188, 195, 207 Fiqh, 1, 71

Flavius, Apion ; 155

Fruit-tnetayage, 14, 78, 79, 80, 85, 87

Fuqaher, 3, 5, 6, 8, 9, 22, 23, 33, 38, 39, 52, 66, 69, 72, 75, 77, 80, 81, 84, 90, 101, 102, 104, 196, 243-44, 310-12

ujdex

395

Fustat, 191

Futilh, 210, 211

G

Gatidefroy-Demoinbyiles, M ; 24. 67

Ghalla, 286, 287

Ghanima, 67, 121, 122, 123, 124, 126, 195

Ghanima-verse, 124-185 Gharar, 12, 22, 23, 24, 69, 70, 71, 90

Gibb, H.A.R ; 192-3

Goldziher, I ; 38

Grohmann, A ; 61

H

Hadith, 7, 10, 69, 70, 71

Hajjaj ibn Yitsuf, 240, 242, 269

Hakam, 90

Hamadan, 243

Hammad, 21

Hangala ibn Qays, 93

Hag/, see m*Iga/a Harlan al-Rashid, 78, 215, 242, 243, 295-96, 299-302

Hardy, E. 12 ; 153-5, 190 Hamm al-Basri, 31, 89, 130, 217, 267

Hasan ibn Salih, 195

Hawazin, 199

Heraclius, 155

Hijaz, 75, 78, 87, 89, 92, 102, 103, 239, 314, 317, 318, 319

/lima, 234245-48 ; bima Nagic 246 ; lama Rabadha, 247 ; /pima Sharaf, 247

396 Landlord and Peasant in Early Islam Index 397

Hira, 201, 267

Hirschfeld, H ; 61

Honorius, 159

Hormizd IV, 169

Hudaybiya, 57

Hudhayfa ibn al-Yaman, 84, 86, 266 Hunayn, 123

?evil, 17

Hurmuzan, 213, 258

Humus ibn Zubar, 213

Husayn ibn 258

I

Ibn Manztlr, 15, 19 ,

Ibn Qayyim al-Jawziya, 211, 216, 292

Ibn Rung', 62

Ibn al-Sabil, 128

Ihn Sed, 31,55, 234 Ibn Shin, 31, 85, 90, 104, 195, 212, 216, 267, 268, 293

Ibn Yasir, 204, 258, 266

Ibn Taymiyya, 2, 243-46 ; on muzareta, 343-46

Ibn al-Tin, 88

Ibrahim ibn al-Mundhir, 62, 85, 90

al-mawat, 27, 248-54 ; Malik on, 248 ; al-Shafi'i on, 249, 252-54 ; Abfi Ytisuf on, 249-50 ; Abil klanifa on, 249

lbada, 1

IbOa, 96, 100

Ibn 'Abd al-Barr, 64

1bn 'Abd al-Hakam, 207, 208

lbn Abi Dhi'b, 292

lbn Abi Layla, 78, 85, 130, 292

lbn al-Athir, 15

1bn Habbar, 204

Ibn Hajar, 15, 63, 88, 92, 99, 182

Ibn Hum', 2, 9, 20, 29, 53, 70, 78 : on Khaybar, 80-86, 96, 97, 98, 100, 337-43 ; on muzarala and mugharasa, 337-41 ; on mtfamala jt al-thimar, 341-43

Ibn Hisham. 55, 112

Ibn Hubayra, 240

Ibn Ishaq, 56, 88, 130

Ibn Jurayj, 20, 62

Ibn Khayyit, 211-12,216

Ibn Maja, 21, 25, 65

/fry; 126, 135

ljara, 69, 81, 83, 314, 317, 324, 330-35

//ma', 69, 70, 103

Ijtihdd, 66, 102

'Ikrima, 31

'Ilj, 39, 188, 191

'Ilia, 6, 25

Imam, 57

'Imran ibn Sahl, 32

Inalienability of Khardl-lands, 216-18

Iota`, 58, 60, 93, 240, 254-57 ; under the Prophet and the early Caliphate, 257-64 ; Mawardi's classification, 264-65 ; Abfi Ydsuf on Igiti`, 258, 261 ; al,Shafici, 262-63 ; of al-'Aqiq,

257 ; of Baal ibn Width, 258 ; of Istiniya, 258 ; of Yamama, 260 ; of Ibn 4ammal, 260 ; ijara, 265 ; iota` tamlik, 264-65 ; iota' irfag, 264 ; iota` istighlal, 265

`Iraq, 74, 75, 87, 92, 95, 100, 142, 151, 188, 205-6

'Tsai ibn Sahl, 32

Ishaq, 85

iil

11

398

ii 11

Ishtirak, 90

Islamic Jurisprudence, 2

Islamic law, 1

Ism7d, 6, 7, 8, 28

Istibbab, 96

IstiVar, 52

Istithnas, 72 Pta', 57

Ptamala, 75

Jabia, 192 Jabir ibn 'AM Allah, 17, 20, 21, 28, 83, 96, 97, 98, 289

Jahr (Jaz') ibn Mucawiya, 205

Jalula, 206.,

Jarir ibn `Abd Allah, 201, 205, 206, 266

al-Jazira, 234, 240

Jews of Khaybar, 19, 52-87, 138

al-Jibal, 210

Jizya, 66, 85, 200, 268

John of Damascus, 156

Johnson, A. C ; 153, 155-6, 162

Jones, A. E M ; 154

Juhayna, 257

Jurf, 257

Justinian, 154, 155, 160, 166-7

Juwayriyya, 62

K

Karaha, 101

Kaskar, 194

Landlord and Peasant in Early Islam Index 399

Katiba, 55, 56, 59

Khabbab ibn Aratt, 84, 86, 93, 258, 266, 269

Khabar al-wabid, 22

Khabar, 19

Khabir, 19, 20

Khaksa-land, 137

Kharaj, 66, 67, 85, 117, 170, 200, 286-302

Kharaj-land, 92; 93, 95, 104, 105, 187, 195, 198, 207, 212, .215, 216, 217, 218, 268, 292, 293, 294

Xharaj muqasama, 61

Khars, 332

Khass; 82

Khassa-lands of the Prophet, 133-4, 138-9, 140

Khawarij, 234, 235, 238

Khwarizmi, 21

Khawwfit ibn Jubayr, 257

Khaybar, 19, 51, 52, 55-56, 57, 59, 60, 61, 62, 63, 65, 67, 69, 70, 72, 74, 76, 77, 79, 82, 83, 85, 86, 91, 95, 100, 101, 118, 125, 128, 134, 137-8, 141, 185, 199, 287, 296

al-Khays, 208

Xhibr, see mukhabara

Khiyar, 185, 196, 199

Khubra, 19, 20

Khums, 55, 56, 122, 124, 195

Khorasan 243

Kira' al-arel, 8, 15, 17, 21, 25, 52, 65, 81, 83, 87, 94, 103 ; theory of, 314-23 ; al-Shafici on, 330-35

Kirman, 210

Kitab !khalif al-Fuqaha', 8

Kitab al-Kharitj, 89, 241

Kiifa, 92, 93, 205, 235, 238, 240, 241, 269


L

Index

M

401

Lambton, A.K.S ; 2, 40, 168 Land,

concept offay'-lands, 117-33 ;

classical theory of muzara'a-tenure, 310-46 ; concepts of sulk and 'anwa-lands, 194-218 ;

'dead' lands, 248-54 ;

land of Khaybar, 51-87 ;

land-tenure under the Byzantines, 151-67 ;

land-tenure under the Sasanians, 167-71 ;

land policy under the Prophet, 13343 ;

lease of land, 10-40, 91-105, 164-167, 169-70 ;

lama-land, 245-48 ;

kharaj as lease of land, 285-302 ;

khfissa-lands, 139-40 ;

inalienability of fay% lanids, 216-18 ;

(Ma's, 254-67 ;

private landed estates of Muslims, 345 ;

Tabarl's theory of fay'-lands, 125-28 ;

theory of primitive land-tenures, 10-28 ;

'Umar 1 and fay'-lands, 187-94 ;

'Uthman and his land policy, 231-40 ;

Land-tenure, see land

al-Layth ibn Sa`d, 62, 94, 104, 267, 292, 293

Lease of land, see land, and kith' al-ard

Libanius the Syrian, 156

Lokkegaard, F ; 2, 38, 128, 129, 131, 132, 135, 170, 184, 241, 297

Maghazi, 118

Maghrib, 209, 210

al-Mandi, 243

Maine, Henry ; 12

mok ibn Anas, 10, 12, 13, 39, 63, 64, 65, 66, 72, 79, 80, 85, 196, 198, 267, 292, 293 ; on mustioat and kird'

ml-ard, 314-23

maiik al-Ashlar, 40, 238

Mancipes, 164

Manfea, 55, 265, 314, 330-31

Ma‘mar,(9-5

al-Ma'mfm, 215

Magna, 62

Maragha, 241

Marcellinus, A ; 169 Marwan ibn al-Hakam, 139, 235, 236, 239, 241, 242

Marzubeins, 168

Maslama, 242

Masrag, 32

Mawardi, 'All ibn Muhammad, 102, 297

Mawat, 60, 92, 240, 269

Mawdadi, A. A ; 61, 234

MaymIln ibn Mahran, 218

al-M5zihin, 240

Mecca, 125, 128, 257

Medina, 37, 53, 66, 74, 78, 87, 88, 118, 239

Mesopotamia, 151, 239

Mitayage, 2; 3, 4, 8, 9, 10, 13, 23, 30, 31, 32, 38, 53, 67, 69, 70, 77, 90, '92; 93, 100, 117, 163, see also muzdra'a,

musiiqat, mu'amala, and kirii' al-ard

Milk, 196, 198

402

Landlord and Peasant in Early !slain

Mischa, 169

Mugadh ibn Jabal, 85, 99, 129, 188, 192 Mu'ahada, 59, 60 Mu'ajara, 52, 94 Mu'akara,\1\9, 52 Mu'iikhat, 88

Mutamala, 1, 69. Mutamala-contract, see Mu'arnala of Khaybar Mu'amala f i al-thimar, 53, 85, 341-43 Mu'arnala-fIadiths, 30, 75, 78, 85 Mzettmala of Khaybar, 4, 8, 30, 33, 52, 53, 56, 60,, 61, 62, 68, 75,

L 78, 99; 100, 102, 287-88

Mu'asjt,•96, 97,

Muàwama 53 A

Murawiya, 36, 102, 215, 235, 239, 240

Mubada/a, 314

Mabadhara, 47

Mubkit, 96

Mudaraba, 14, 63, 77, 79, 81

il-Mudaybir, 240

Mugharasa, 53, 85 ; Ibn 11aim's theory of, 340-43 Mughira ibn Shu'ba, 209

Muhafiran, 87, 88, 89, 130, 133, 236 kitkb al, 81

al-Muhallab ibn Abi Sufra, 213

Muhammad ibn Àbd al-Rahman, 62, 98

Muhammad ibn Rau' 62

Muhammad ibn Sulaymin, 243

Muktqala, 11, 14, 18, 19, 20, 22, 25, 52, 79, 83, 94, 95, 98 Mtdtagala-Idadiths, 16, 26, 29 Mubayyasa ibn Masud, 76

Mujahid, 31, 130. 216, 217

Index 403

Mukhabara, 11, 14, 18, 19, 20, 21, 22, 24, sz, 63, 68, 71, 79, 83,

99

Mukhatara, 13, 94

Mukhayriq, 139

Multimasa, 13

Munabadha, 13

Musgasama, 52, 169, 295-302

Muqktaà, 52

Mugati/a, 231

Masa ibn Isma`11, 62

Musa Talba, 269

Musa ibn Vqba, 62

Musaddad, 97

Musahama, 53

Musa/aha, 59, 66, 68, 77

Musaqat, 8, 14, 25, 52, 63, 64, 65, 66, 71, 72, 85, 87, 89, 287-88 ; Malik's theory 'of, 314-23

76, 77, 78, 79, 81,

Musharaka ft al-muzaraca, 53, 344

Muslim, 25, 62, 94

Muslim ibn Mishkam, 218

Musnad of Abu Yasla, 92

Musnad Ahmad ibn Hanbal, 5

Musnad al-Imam Zayd, 91

Mutagabbilan, 288

Muwattat, 13, 38, 63-65

Muzabana, 13, 17, 20, 29, 45, 65, 94, 105

Muzara‘a, 2, 5, 8, 9, 14, 19, 21, 22, 26, 33, 52, 63, 72, 74, 75, 77, 78, 79, 80, 81, 84, 85, 86, 106, 103, 105, 106, 209, 310-46 ;

muzliraà-Idadiths, 27, 51, 62, 87, 93, 95,

state muzeiraà, 288-302, 335 ;

classical theory of, 310-46 ;

67, 87,

98,

68, 69, 90, 92,

101 ;

71, 94,

Landlord and Peasant in Early Islam

Aba lianifa's repudiation of, 323-25 ;

Aba Ylisuf 's theory of, 325-30 ;

Ibn klazm's theory of, 337-40 ;

Ibn Taymiyya on, 343-46 ;

al-Shafici's theory of, 330-35 ; Muzayna, 257

404

N

Nadb, 96

NaT, 7, 29, 31, 62

Nahr Marwan, 236

Nacim, 53

•3Najran, 209, 298

al-Nakhei, Ibrahim, 21, 203, 216

Nasa'i, 25, 94

Naskh, 83

Natat, 55, 56, 59

Natural economy, 11, 16, 65 '

Nehiwand, 240

Noldeke, T ; 233

Noth, Albrecht ; 215

0

Ostrogorsky, Georg ; 155, 297-98

Palestine, 99, 151, 166

Patroeinium, 153, 155

Peltier, F ; 88

Persia, 151, 190

Index 405

Planhol, Xavier de ; 152-3

Possessores, 153

Primitive land-tenures, 10, 26, 74, 79, 100

Private landed estates of Muslims, 245

Private estates in Byzantium, 143-157

Probster, E ; 2, 35, 36

Procopius of Caesarea, 155

Proeuratores, 288

Prophet, 7-8, 16, 17, 20, 21, 22, 27, 28, 29, 53-69, 71, 76, 7S, 79,

82, 84, 85, 87, 91, 93, 94, 95, 96, 98, 99, 104, 118, 123,

125, 128, 133; 134, 185, 199,.234

Qabala, 53, 77, 78, 91, 101, 217, 287, 288-302

Qabisa ibn Dhu'yb, 218

Qadi Ìyacl, 64, 100

Qadisiya, 205

Qaqizan, 243

al-Qasim ibn Muhammad ibn AM Bakr, 31, 89, 85, 238

Qatada, 90, 130

Qatià, 58

Qays, 240

Qays ibn Abi klazim, 205, 206, 266

Qays ibn Muslim; 89, 90, 91

Qazwin, 243

Qirtici, see mudaraba

Qiyas, 78, 81, 100, 103

Qubad, 169

Qubbash, 156.

Qura Àrabiya, 54, 118

Qurayshites, 235

406 Landlord and Peasant in Early Islam Index 407

R

Rall'ibn Khadij, 16, 17, 20, 21, 28, 30, 32; 65, 78, 83, 93, 94, 96, 97

Ragiq, 71

Rayy, 210 -

Rent, 67 ; rents and 'leases in Byzantium, 164-67 ; under the Sasanians, 169-70

Riba, 34, 35, 45

Ridda, 187

Rhodokanakis, N ; 15, 18

Rouillard, G ; 153-4, 165

Ruha, 209

Enid, 122

Rukhsa, 10, 33, 51, 86, 91, 101, 104, 105, 267

S

Sa'd ibis Abi Waqqas, 98, 104, 105, 206, 266

Sa'd ibn Malik, 84, 89,'92, 93, 104, 258,. 269

.5adaqa, 60, 86, 95, 137

84, 134

,5'afiya, 134, 139

Safiya, 37

Saghdr, 217, 218, 267: theory of, 267-70

Salsih of B ukhari, 95

Said ibn 205, 235, 238, 239

Sagid ibn Jubar, 289

Sa'id ibn al,Musayyib, 18, 63, 65, 85, 94, 98, 14f,..314. Sa'id ibn Zayd, 216

Salih ibn Abi al-Akhdar, 64

Salih ibn Musarrih, 234

Salim ibn 'Abd Allah, 7, 21, 25

Santillana, D ; 61

Saraya, 118

Sasanian agrarian regime, 151, 167-71

Sawad, 56, 125, 128, 188, 190, 192, 194, 200, 201, 203-4, 205, 209, 210, 213, 217, 235, 238, 239, 265, 267, 269, 286,

287, 294

$awafi, 193, 200, 201, 203, 201-5, 215, 235, 239, 243, 269

Schacht, Joseph ; 7, 8, 249

Scott, S. P ; 160

Schmucker, Werner ; 2, 62, 129, 131, 184, 201-216, 233, 266, 270

ShaThi, 32, 93, 204, 205, 216, 217, 267, 287, 290

al-Shaffli, Muhammad ibn Idris, 2, 10, 13, 19, 39, 56, 79, 80, 194, 199, 200 ;

on muzdra'a and Lira' al-ard, 330-35 ; on state muzdra`a,

335

Shahpar II, 168

Shari', 72

Shari`a, 3, 11, 39, 40, 69, 71, 72, 95, 101

Sharik ibn Sumaiya al-GhutayfI, 209

Shawkani, Muhammad ibn 'All, 5

Shaybani, Muhammad al-Hasan, 14, 25, 57, 59, 66, 70, 77, 79, 85, 122, 213, 294

Shiqq, 55, 56, 59

Shurayb, Qadi, 258

Sufyan al-Thawri, 25, 85, 123, 195, 197, 268

Sufyan ibn 'Uyayna, 183

Sulaliru, 55, 56, 59, 61

Sulayman ibn I-Jarb, 29

Sulayman ibn Yasar, 63, 64, 79, 314

.Sitil4, 57, 58, 59, 123, 126, 135-6, 137, 140-1, 267, 293, 294

.zillj-land, 117, 191, 194-216, 289

U

Ùbayd Allah ibn al-Mandi, 215 Ùbayd Allah ibn cUmar, 62 Ùdlitayb, 204 Uhud, 119 Ujra, 8, 60, 69, 170, 285-87 Ullays, 201 %mar ibn al-Khattalb, 35, 48, 57, 59, 63, 70, 71, 76, 83, 84-86,

88, 89, 90, 92, 95, 99, 105, 125, 127, 129, 130, 138, 141, 151, 162, 185, 187, 194, 205, 206, 211, 212, 233, 234, 239, 247, 267, 268, 269, 286, 287, 288, 291, 292-93, 298

Ùmar ibn Àbd al-4Aziz 36, 37, 85, 89, 92, 129, 139, 192, 195, 270, 292, 293, 294

Umayyads, 33, 35, 36, 61, 74, 105, 117, 134,-5, 197, 214, 232-3, 234, 237, 244, 290, 293, 299

Umma, 1, 26, 27, 30, 34, 54, 71, 75, 103, 118, 122, 132, 185-6 232

‘Utnam, 82

Ùrwa ibn al-Zubayr, 7, 65, 89, 93

Usama ibn Zayd, 57, 93, 269

Usayd ibn Zuhayr, 16

Ùshri-land, 196-7, 217, 267, 291-92, 294

Ùbta ibn al-Farqad, 217, 266

'Uthman ibn 'Affan, 31, 36, 61, 71, 84, 92, 99, 188, 204, 205, 231-37, 285, 269

cUthman ibn 1-1unayf, 287

Index

409

V

Valens, 160

Valentinian, 160 Van Berchem, 61 Vaspuhrs, 167 Mice, 164

122, 127, 204, 211, 238,


Sultays, 208

Sunna, 8, 27, 79, 104

Sara Anfal, 122, 126

Siirat al-Ilashr, 118, 119

Suwayd ibn Ghafala„266"

Syria, 88, 125, 151, 166, 194, 207, 209 210, 239. 241, 269

T

Tabari, Abu Ja`far Muhammad ibn Jarir, 8, 55, 56, 121, 123, 124, 125, 130, 141, 194, 205, 206, 208, 213, 234, 236, 269

Tabaria, 209

Tlibi`Cen, 8

al-Tahawi, Abu Ja`far Ahmad ibn Muhammad, 18, 25, 102 Takhrls, 64

Talba, 188

Talji'a, 155, 241-42, 243

Tamim al-Rabia, 240

rasq, 140, 297

Taswiya, 182

Taus, 20,21,25,31,85,93,99

Taym5.', 61,118

Thabit ibn Dahlia, 94,96

Thabit ibn liajjai, 21

Thanawl, 122

Theodoret, 156

Theodosius, 159

Tirmidhi, Muhammad ibn 'Isa, 98

Tu`ma, 57, 60, 137, 182, 185

Wadi al-qura, 61, 119

Wail ibn 1:lajr, 266

al-Walid, 139, 242

Wagf, 54, 56, 57, 59, 95, 124, 129, 151, 187, 193

Waqidi, 55, 57, 122, 133, 138, 139

Watib, 55, 56, 61

Wazifa, 140, 200

Weber, Max; 11

West, L. C; 153

Wiet, Gaston; 239

yahya ibn Adam, 37, 56, 125, 188, 195, 211, 216, 234.

Ya `la. ibn Umayya, 298

Ya Ibri Wadib, 234, 239

Yaqui ibn 'Abd Allah al-Hainawi 135-6, 169, 214

Yemen, 99, 239

al-Yana, 207

Zakat, 34, 36, 185, 187, 292 Zamakhshari, Mabmud, ibn 'Uttar, 121 Zanjan, 243 Zarc 18 Zayd ibn 'Ali, 91 Zayd ibn Thabit, 7, 18, 20, 97 Ziyad ibn. Abihi, 210-11, 212, 214-15 al-Zubayr (ibn-.Ass warn), 58, 93, 204, 207;'257, 269 zuhayr, 17, 28 Zuhri, ibn Shihab, 8, 56, 59, 63, 64, 69, 85, 90, 125, 134, 138,

141, 188, 208, 213, 235, 293, 314 Zurqdni, Abu. 'Abd Allah Muhammad ibn 'Abd al-Baqi 20, 65, 70, 71, 72, 315

4I0 Landlord and Peasant in Early Islam

Landlord and Peasant in Early Islam - Ziaul Haque

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