For Allah, the Almighty, commanded that they be fought until they provide the Jizya; if they (49) do not (50) provide it, fighting them (51) becomes permissible. The justification for the first view is the requirement of wealth that reaches the amount of the Jizya, so it is permissible, just as if he had stipulated upon them the equivalent of the Jizya in Ma'afir garments.

Section: If he stipulates a corrupt condition in the covenant of the Dhimma, such as stipulating that there is no Jizya upon them, or the open display of vice, or housing them in the Hijaz, or allowing them to enter the Sacred Precinct (Haram), or any similar condition (52), the Qadi said: The contract is rendered corrupt by it, because he stipulated the performance of a forbidden act, thereby corrupting the contract, just as if he had stipulated the fighting of the Muslims. It is possible that the condition alone is corrupt while the contract remains valid, based on [the ruling regarding] corrupt conditions in sale and Mudaraba contracts.

1690 - Issue; He said: "And there is no Jizya upon a child, nor one who has lost his reason, nor a woman."

We do not know of any disagreement among the scholars regarding this. Malik, Abu Hanifa and his companions, al-Shafi'i, and Abu Thawr all held this view. Ibn al-Mundhir said: I do not know of any disagreement from others. The validity of this is evidenced by the fact that Umar, may Allah be pleased with him, wrote to the commanders of the armies: "Impose the Jizya, but do not impose it upon women and children, and do not impose it except upon those who have reached the age of puberty (upon whom the razors have passed)." It was narrated by Sa'id, Abu Ubayd, and al-Athram (1). The saying of the Prophet, peace and blessings of Allah be upon him, to Mu'adh: "Take a dinar from every one who has reached puberty" (2) is proof that it is not mandatory upon anyone who has not reached puberty. Furthermore, the Jizya (3) is taken for the preservation of blood, and the blood of these individuals is already preserved without it.

Section: If a woman offers the Jizya, she is informed that there is no Jizya upon her. If she says: "I will donate it," or "I will pay it," it is accepted from her, but it is not considered Jizya; rather, it is a gift that becomes binding upon receipt. If she stipulated it upon herself and then retracted it, she has the right to do so. If she offers the Jizya so that she may enter (4) the Abode of Islam (Dar al-Islam), she is enabled to do so without any payment, but it is stipulated upon her that she adheres to the rulings of Islam, and a Dhimma covenant is concluded for her, and nothing is taken from her unless she volunteers it after knowing that there is nothing upon her. If anything was taken from her other than this, it shall be returned to her, because she offered it believing that it was incumbent upon her and that her blood would not be protected except by it, which is analogous to one who pays money to someone believing it is due to them, then it becomes clear that it is not theirs. If the Muslims besiege a fortress containing only women, and they offer the Jizya so that a Dhimma covenant may be concluded for them, it is concluded for them without any payment, and it is forbidden to enslave them, exactly like the [ruling of] the woman before them. If there are men with them in the fortress, and they request a reconciliation so that the Jizya is upon the women and children instead of the men, it is not valid, because they placed it upon those for whom it is not due and exonerated those upon whom it is due. If they offer Jizya on behalf of the men, and they pay on behalf of the women and children from their own wealth, it is permissible, and that is considered an addition to their Jizya. If it is from the wealth of the women and children, it is not permissible, because they are placing the Jizya upon those for whom it is not mandatory. If the amount they offered from their own wealth is of the amount that would satisfy the Jizya requirement, it is taken from them, and the remainder is dropped.

Section: Whoever reaches puberty among the children of the people of the Dhimma, or recovers among their insane, becomes one of those upon whom it is due through the initial contract, and there is no need for a new contract for him. The Qadi said, in one position: He is given the choice between adhering to the contract or returning to his place of safety; if he chooses the Dhimma, it is concluded for him, otherwise he is sent to his place of safety. This is the view of al-Shafi'i. Our evidence is that it has not been reported from the Prophet, peace and blessings of Allah be upon him, nor from any of his Caliphs, that they renewed the contract for such individuals. Furthermore, the contract is made with their leaders, so all of them are included within it. It is a covenant of peace with the disbelievers, so there is no need for its renewal due to that, like a truce. Also, the children and the insane were included in the contract, so there is no need to renew it for them when their states change, just like others. It is a contract into which they entered, so it remains binding upon them after puberty and recovery of reason, like Islam. Once this is established, if the reaching of puberty and recovery of reason occur during...