Kharaj (land levy, fiqh entry)

الخراج (الموسوعة الفقهية)

Kharaj is lexically the yield of a thing, and it can mean a rent or a levy or tax. Abu Ubayd and al-Layth treat kharj and kharaj as one word, while Abu Amr ibn al-Ala' distinguishes them: kharj is what one gives freely, kharaj what one must pay. ¹² As a technical term it has a general sense, the funds the state collects and spends, and a particular sense, the duty the Imam imposes on productive land; al-Mawardi and Abu Ya'la define it as the rights laid on the necks of land and paid for it. ² Other names for it are land jizya, land rent, and tasq, a Persian word that appears in Umar's letter to Uthman ibn Hunayf (may God be pleased with him). ²³ It is distinct from ghanima, fay', jizya (a levy on persons, not land), khums and 'ushr (the tithe on land owned by a Muslim). ³ When conquests grew under Umar ibn al-Khattab (may God be pleased with him), he decided not to divide land taken by force among the conquerors but to hold it as an endowment for all Muslims, with a fixed kharaj on its cultivators. Companions first differed; Abu Yusuf reports that Bilal ibn Rabah (may God be pleased with him) was among the strongest objectors; Umar argued from the verses on fay' in Surat al-Hashr and consulted the Emigrants and the Helpers until the matter was settled. ⁴⁵ Jurists base its legitimacy on the Qur'an, the Sunna and public interest. The Sunna cited includes the report 'Iraq withheld its dirham and qafiz' (a prophetic foretelling of the kharaj imposed on land), and the Prophet ﷺ's division of half of Khaybar for the needs of the community. ⁶⁷ The interests cited are a stable revenue for future generations, keeping wealth from concentrating in one group, and keeping land cultivated by those who know it best; Mu'adh ibn Jabal's advice to Umar is quoted for this. ⁷⁸ Kharaj is due on every holder of productive kharaj land, Muslim or not, adult or minor, sane or insane, man or woman, since it is the cost of the land's yield. ⁶ By form of levy there is kharaj al-wazifa, a fixed sum owed on the land's area and crop type whatever it yields, which Umar imposed on al-Sawad, Egypt and Syria; and kharaj al-muqasama, a share of the produce such as a quarter or a fifth, which al-Mahdi introduced in place of the fixed sum, a change that the text connects to falling prices. ⁸⁹¹⁰ By status of the land there is sulhi kharaj, levied on land whose people made terms to keep it, and 'anwi kharaj, levied on land taken by force and held for all Muslims, including land its people left in fear without fighting. ¹⁰ Kharaj lands are of two kinds: those settled by treaty, and those abandoned out of fear without battle, which by most jurists become an endowment for Muslims upon seizure. ¹⁰¹¹ Conditions for kharaj land: it must be kharaj land, so the wazifa is not owed on 'ushri land; and it must be productive in fact (by yield) or in estimate (by fitness for cultivation), so no kharaj falls on houses or on barren land unfit for farming. ¹¹¹² When 'ushri land passes to a dhimmi, most jurists allow the sale; Malik and one report of Ahmad forbid it. They then differ on what falls due: the Shafiis and the preferred Hanbali view keep it non-kharaj; Abu Hanifa and Zufar make it kharaj; Malik and Abu Yusuf double the 'ushr on the dhimmi; Muhammad al-Shaybani keeps it 'ushri. ¹²¹³ Whether a dhimmi may revive barren land with the Imam's leave is disputed. ¹⁴ The amounts: the Hanafis levy a qafiz and a dirham on each arable jarib, five dirhams on clover and ten on vines, with the ceiling at half the yield; Malik sets no fixed sum and leaves it to the Imam's judgement with experts; the Shafiis follow the figures of Uthman ibn Hunayf (two dirhams on barley, four on wheat); the Hanbalis set a dirham and a qafiz, and eight dirhams on palms. ¹⁴¹⁵ On raising or lowering Umar's figures, the Shafiis, one report of Ahmad, Muhammad al-Shaybani and one report of Abu Yusuf allow both; Abu Hanifa allows only lowering; a second report of Ahmad allows only raising; a third report forbids both. ¹⁵¹⁶ The assessor considers soil quality, the cost of irrigation (rain and river water cost less than well water), the crop or fruit, nearness to towns and markets, and leaves a margin for calamities, as the Prophet did in the estimation of fruit for zakat. ¹⁶¹⁷¹⁸ When it is due depends on the type: a share levy (muqasama) is due at harvest and recurs with each yield; a fixed levy (wazifa) is taken once a year, by the lunar year for land area and the solar year for crop area; Abu Hanifa has it due at the start of the year on condition the land stays productive. ¹⁸¹⁹ Advance payment was allowed by the Hanafis and Hanbalis for a year or two; the Hanbalis refund it in all cases, the Hanafis only if the sum still exists. ¹⁹²⁰ On default, a solvent holder is jailed until he pays unless goods are sold for it; an insolvent holder is given time and the debt stays. The Shafiis, the Hanbalis and the two companions of Abu Hanifa do not drop it; Abu Hanifa drops it on insolvency, as he does the jizya. ²⁰²¹ The duty falls on whoever holds the land; if it is let or lent, most jurists place it on the owner, while a usurper owes it. ²¹ The Imam, just in his rule, assesses, demands and disburses it; no one may distribute it himself; whoever pays an unjust ruler is generally released. Where rebels seize a town and collect it, most jurists release the payers; the Malikis require repayment. Brigands do not release the payer, since the sum is seized by force. ²²²³²⁴ The collector (amil) acts as the Imam's agent and may not distribute the sum without leave; the conditions are Islam, freedom, trustworthiness, sufficiency, knowledge and understanding (a dhimmi is not appointed to assess it, most jurists say, citing the verse on not taking an inner circle from outside the believers and Umar's refusal of a Christian scribe). ²⁵²⁶ The collector should be gentle, dividing the levy according to each harvest; just, without favour; and chaste, taking no bribe or gift, since Khattabi calls officials' gifts unlawful. ²⁷²⁸²⁹ The Imam must supervise the collectors through men of trust, and pay them salaries that suffice, as Abu Ubayda told Umar. ³⁰ Farming out the levy (qabala or tadmin): a person undertakes to collect it for himself at a fixed price; it appeared under the Umayyads and spread under the Abbasids. Ahmad, Abu Yusuf, Abu Ubayd and al-Mawardi rejected it for the injustice it brings, while Abu Yusuf allowed it where the Imam is secure from injustice and the payers consent. ³⁰³¹³² Causes of remission: first, the land's loss of fitness for cultivation through an event beyond human action, which by most jurists remits the levy; where it can be repaired the Imam repairs it from the public-interest share. ³²³³ Second, idleness: if it comes from outside the owner, the levy lapses; if by the owner's neglect, the share-levy lapses and he is ordered to farm; the fixed levy is not remitted by the Hanafis, Shafiis and Hanbalis, but is by the Malikis. ³³³⁴ Third, a crop lost to a heavenly blow before harvest remits the share-levy; for the fixed levy the Hanafis require two things: fewer than three months remain for another sowing, and the surviving crop is less than twice the levy. ³⁴³⁵ Fourth, the Imam's remission for a public interest: allowed by the Hanbalis and Abu Yusuf, forbidden by Muhammad al-Shaybani. ³⁶ Fifth, building on kharaj land: most Malikis, Shafiis and Hanbalis keep the levy; the Hanafis drop it; al-Mawardi drops it only for a necessary dwelling. ³⁶³⁷ Sixth, conversion of the owner or sale to a Muslim: the conquered-land levy never lapses; the treaty levy lapses by most jurists, citing a report of al-Ala' ibn al-Hadrami, but not by the Hanafis. ³⁷³⁸ Joint 'ushr and kharaj on a Muslim: most Malikis, Shafiis and Hanbalis require both; the Hanafis require only kharaj, citing the report that no Muslim pays both and Umar's order on a Nahr al-Malik convert. ³⁸³⁹ Uses of kharaj follow those of fay': the soldiers' pay, judges, scholars, mosques, roads, bridges and frontier defence; most Hanafis, Malikis and Hanbalis do not take a fifth of it, while the Shafiis do. ^{3940 41}