444 - Issue: He said: "And whatever was acquired by force ('anwatan), the kharaj (land tax) is paid from it, and what remains is subject to zakat if it amounts to five wasqs and belongs to a Muslim."

He means what was conquered by force and set aside for the Muslims, and upon which a known kharaj was imposed. Thus, the kharaj is paid from its produce, and one considers the remainder: if it reaches the nisa' (minimum threshold), then zakat is due upon it if it belongs to a Muslim. If it does not reach the nisa' [or it reaches the nisa'] and does not belong to a Muslim, then there is no zakat upon it, for zakat is not obligatory upon non-Muslims. The same ruling applies to all kharaji land. This is the view of 'Umar ibn 'Abd al-'Aziz, al-Zuhri, Yahya al-Ansari, Rabi'ah, al-Awza'i, Malik, al-Thawri, Mughirah, al-Layth, al-Hasan ibn Salih, Ibn Abi Layla, Ibn al-Mubarak, al-Shafi'i, Ishaq, and Abu 'Ubayd.

The followers of reason (ashab al-ra'y) said: There is no 'ushr (tithe) on kharaji land, due to his statement (peace be upon him): "'Ushr and kharaj do not combine in the land of a Muslim." Furthermore, they are two rights whose underlying causes are mutually exclusive, so they cannot be combined, like the zakat on grazing livestock and [zakat on] trade, or the 'ushr and the zakat on value. The explanation of their incompatibility is that the kharaj was imposed as a penalty, for it is the jizya of the land, while the zakat was imposed as purification and gratitude.

Our evidence is the statement of Allah the Almighty: "...and from that which We have brought forth for you from the earth," and the statement of the Prophet (may Allah bless him and grant him peace): "On what is watered by the sky is the 'ushr," along with other general reports. Ibn al-Mubarak said: Allah the Almighty says: "...and from that which We have brought forth for you from the earth." Then he said: Are we to abandon the Qur'an for the opinion of Abu Hanifah? Also, they are two rights that become due to two different categories of recipients, and it is permissible for both to be due upon a Muslim, so their combination is permissible, like the expiation (kaffarah) and the compensation (qimah) for game hunted in the sacred territory (Haram) while being owned property. Their hadith is narrated by Yahya ibn 'Anbasah, who is weak, from Abu Hanifah. We then interpret it [the hadith] as referring to the kharaj which is jizya.