al kharaj in islamic land law

AL-KHARAJ IN

ISLAM

SITI NUR JANNAH BT HASANUDDIN 1122051NUR SYAFIQAH BT MOHD NAJIB 1122045KAMALIAH BT ABBAS 1122492

Content • 1. 0 Definition - 1.1. General definition- 1.2 Authorities- 1.3 The Implementation of Al-Kharaj in Islamic period- 1.4 Scholar’s Views In Rights Vested

On The Non Muslim Holder Of Kharaj Lands• 2.0 Determining amount of kharaj- 2.1 Factors determining amount of kharaj

2.1.1 Quality of the land2.1.2 Types of plant planted2.1.2 Watering system

- 2.2 Dynamism in the policy and the rationale for setting the rate of al-kharaj• 3.0 The Function of al-Kharaj- 3.1 Al-Kharāj as an Official Government Document - 3.2 The Word al-Kharāj Is Used To Mean Ministry of Finance and Revenue From Tax- 3.3 Al-Kharaj Is Used In More Than One Sense

3.3.1 Taxes in General3.3.2 Land Tax3.3.3 Rent

- 3.4 Current Situation – Quit Rent

1.Definition

• Al-Kharaj is an Arabic word • It is also said taken from literary official

language of Rome, Byzantine and Ancient Greek which generally means `tax’

• Throughout the history of Islam it was used to refer to land tax which is imposed on the developing land.

1.1 Generally

• Al-Kharaj is defined as taxes, revenue, revenue obtained from human property, tribute, rental, Income of general property, a public’s revenue or revenue from land,a rates.

1.2 Authorities• Al-Kharāj and kharj are used in the Quran but

not to mean land tax. The words generally means a gift/income/reward as in

Surah al-Mu’minun, 23 verse 72:• “Or is it that thou askest them for some

recompense? But the recompense of thy Lord is best: He is the Best of those who give sustenance”.

• According to Subhi Salih, al-kharāj as used in the verse above means to ‘withdraw’; as if a portion is taken out from a whole (taxable item) in order to fulfil an obligation; as is meant in (Surah al-Kahfi, 18:94)

• They said: “O Zul-qarnain! the Gog and Magog (People) do great mischief on earth: shall we then render thee tribute in order that thou mightest erect a barrier between us and them?”

• Hence, one should not be confused with the interpretation term of al-kharaj in the Quran and Hadith with the interpretation term al-kharaj that stipulate the meaning of taxes in the Islamic ruling era.

1.3 The Implementation of Al-Kharaj in Islamic period

(a) The Prophet period ;• Implemented early in the Islamic rule in the

event of Khaibar when the Jews requested for the land that Muslims had conquered to remain as theirs because they were very good farmers.

• The prophet (p.b.u.h). consented to the request on condition that they surrender half the revenue obtained from the land as tax al-kharaj

• Findings: The taxation were directed towards the people of the conquered land, not the land itself

(b) Caliphate period• the first modification system of al-kharaj was first

imposed by Caliph Umar Ibn al-Khattab after consultation with the companions .

• Initially al-kharaj included in ghanimah’s type of asset, which should be divided among the Muslim soldiers but Caliph ‘Umar felt that the practice was a waste for Muslims of that time as well as the future if the land in Iraq and Syam were divided among Muslim soldiers since the area of Muslim state at that time became very large due to conquests.

• So he proposed that the land remained the owners’ on condition that they pay kharaj.

• This can be seen in a narration stated that;“But I saw that there was nothing left to conquer the land of Khusrau. Allah has given us their property and land. I have distributed whatever property among the deserving . I believe that I should keep aside these lands with their peasants and impose kharaj on the land on the persons jizyah which they should pay.”

(c) Umayyad period • Some peasants and landlords, though not the majority

by any account who wished to escape the burden of kharaj began to convert to Islam, hoping that their kharaj obligation to the state be changed over to ’ushr but to no avail as Conversion to Islam did not relieve the non-Arab subject from jizya or kharaj.

• However, new administrative reforms under Umar b. Abd al-Aziz where the burden of jizya was removed from the new converts while enforcing the land tax for areas classified as kharaj lands.

• As a consequence, al-kharaj now became a mandatory tax for lands categorized as such regardless of ownership.

(d) Abbasid period• The evolution of al-kharaj, taxation system

began during al-kharaj the Abbasid period, under the third caliph al-Mahdi (r. 775–785),

• Throughout this period there were a lot of ijtihad regarding the implementation of al-kharaj system

• For instance, in determining the taxes based on a proportion of the produce (muqasama).

• The change constituted a major shift in the Islamic government’s economic policy.

1.4 Scholar’s Views In Rights Vested On The Non Muslim Holder Of Kharaj Lands.

• Two types of kharaj lands : a) land brought under Muslim sovereignty peacefully by

virtues of treaties or agreements with the inhabitans which allowed the occupants of the respective land to retain.

b) the lands which were acquired or conquered by force of arms and possession but were left to the former inhabitants subject to the terms and conditions imposed by the state.

• There are different views among the scholars regarding the rights vested on the non Muslim holder of kharaj lands.

• It is said that the land in the non Muslim possession were considered to be mulk land(private land).

• The Hanafi School view that all the kharaj lands are deemed to be treated as mulk lands.

• Hence, the owner was equipped with the rights of ownership, full rights of disposition over the land and have the power to constitute waqf for both first and second category of lands.

• Where as Maliki and Shafiee School shared the same view in excluding the second types of land, where the land were acquired by force of arms. They do not have full ownership nor possess power of disposition over the land.

• The second type of land is regarded as land in waqf for the welfare of the Muslim community.

2.0 DETERMINING AMOUNT OF KHARAJ• DETERMINING AMOUNT OF KHARAJ1. Religion of the owner 2. Area of land

• Al-Mawardi 1. Mawat land

• Usyriah land-if cultivated by Muslim• Kharajiah land-if cultivated by non-Muslim (kaffir zimmi)

2. Land owned by people who had converted to Islam• Shafie school-Usyriah land• Hanafi school- depend on the Khalifah-if declared as usyriah land can

convert to kharajiah land later-if declared as kharajiah land-can not convert to usyriah land

3. Land acquired from non-Muslim through war• Shafie-usyriah land-part of ghanimah • Malik-kharajiyah land-considered as waqaf to all

Muslims• Hanafi-Khalifah will deciide whether khsrsjish or usyriah

4. Land acquired from non-Muslim through sulh• Kharajiah land-divided into 2 :

– Land that was left by its owner without engaging into a war-become waqaf land-imposed kharaj-can not be sold;

– Land that was remained with its original owner and they entered into a peace agreement-imposed kharaj

• Abu Yusof1. Usyriah land- all lands in Arab Peninsular. 2. The person who converts into Islam and the land is owned by

them for example, the land in Madinah and Yaman, they did not have to pay jizyah.

3. When imam or khalifah divide non-arab land to the army, it is usyriah land.

4. Kharajiah land- not owned by Arab. It is opened by Islamic government. Then, the non-arab asked permission to cultivate the land.

5. There is no division as ghanimah property on the kharajiah land and no tax will be imposed.

6. Furthermore, non-arab land is the agreement with Muslims to pay the kharaj on the kharajiah land. It is compulsory to pay kharaj by agreement.

• According to Hanafi-2 types of kharaj:1) Kharaj muqasasamah– Certain rate imposed depend on the product– ½,1/3, ¼,1/5– Every agriculture season

2) Kharaj wazifah (muwazzaf)– Depend on the area of the land or type of crops

planted on the land– Collected once a year

2.1 FACTORS DETERMINING AMOUNT OF KHARAJ

2.1.1 QUALITY OF THE LAND• Exemption of Kharaj-circumtances• Crops destroyed due to natural disasters eg :

flood, fire,landslide –no kharaj • If the land can still produce products in the

same year-kharaj • Crops destroyed due to failure to take

necessary protection-still need to pay kharaj

• Building erected on kharaj land :– Al-Mawardi: Kharaj imposed but still can derived

benefit from the house, building.– Abu Hanifah: No kharaj except if planted with

crops• Land leased or loaned to someone else– Kharaj on the landowner– Abu Hanifah: If the land was leased kharaj on land

owner– Loaned: kharaj on the borrower

2.1.2 TYPES OF PLANT PLANTED• Zakat– Imam Syafie-kharajiah land planted with zakatable

crops-imposed both kharaj and usyr.– Imam Hanafi-kharaj only

• Status of Land– Imam Syafie- status of the land unconvertible– Imam Hanafi-convertible

2.1.3 WATERING SYSTEM

– Imam Shafie: If kharajiah land used water from usyriah land-kharaj

– If usyriah land used water from kharajiah-usyr– Based on types of land– Imam Hanafi: If kharajiah land used water from

usyriah land-usyr– If usyriah land used water from kharajiah land-

kharaj

2.2 DYNAMISM IN THE POLICY AND THE RATIONALE FOR SETTING THE RATE OF AL-KHARAJ

1. The reduction in the tax rate policy• Caliph ‘Umar reduced the rate of kharaj from 27 dirham to 1

dirham for every jarib land per qafiz of wheat or barley or its equivalent, regardless whether the land was used or unused but it is watered annually.

2. It must affordable and bearable to the land owner• Caliph ‘Umar al-Khattab sets a standard amount of money or

a certain quantity of grain.3. Adjustment in type of tax to avoid it from becomes a burden• The fixed rate tax which is al-wazifah or al-misahah were too

heavy to the land owner.

3.0 The Function of al-Kharaj• 3.1 As an official government document.- there were twenty one known separate writings on

kharāj; written throughout the rule of the early Caliphs.- Only three of them exist either in manuscript or original

document form till today. - The three books are “Kitāb al-Kharāj” by Abu Yusuf,

“Kitāb al-Kharāj” by Yahya b. Adam and “Kitāb al-Kharāj” by Qudamah b. Ja’far.

- They are now the main sources of reference for Islamic taxation. These books have also been recompiled and even translated into various languages as they are referred to by academics all over the world.

• 3.2 Used To Mean Ministry of Finance and Revenue From Tax

- Diwan al-Kharaj or Ministry of Finance are the name used to present the ministry that in charge of finance or taxation- These bureau were assigned with evaluating,

collecting and surrendering tax revenue to Diwan Bayt al-mal.

- The function of ministry is to make all forms of payments at the regions, and salary for government officers, soldiers, public works expenses, including all other government expenses.

• 3.3 Al-Kharaj Is Used In More Than One Sense- 3.3.1 The Word al-Kharāj is Used to Mean Taxes in GeneralMuslim writers used the term according to its

original meaning in general to refer to all forms of taxes.

Yahya b. Adam often used it to mean ‘land tax’. He also used it to mean taxes in general.

Abu Yusuf, Abu ‘Ubayd, Qudāmah, Khatib and Yahya also used ‘tasq’, ‘‘usyr, ‘jizya’ and ‘kharāj’ to mean the same thing.

According to Muhammad Diya’ al-Din alRais the word al-kharāj has two meanings; a general and a specific meaning. Al-Kharāj in general terms refers to public property or government revenue.

- 3.3.2 Al-Kharāj As Land TaxAl-Kharaj is a tax imposed on the owner of a piece of

land that had been conquered by Muslim soldiers in a war or peacefully.

Caliph ‘Umar’s rule, there were two categories of conquered land: land with owners and land without owners.

Land with owners : The former refers to land that was owned by someone and the owner have surrendered to the soldiers; while the latter refers to land where the owners have absconded or was killed during the war.

Both types of land are considered kharaj land and are taxed, unless if the owner becomes a Muslim, then zakat is imposed

Land without owner : They remain kharaj land eventhough the person who manages the land is a Muslim.

It was customary then for land without owners to be managed by the local residents since they were skilled farmers compared to the Arabs.

However, where general administration like work division, setting of rate of tax and the distribution was concerned, these still reside in the hands of the Arab army generals.

• As for unowned or abandoned lands, Caliph ‘Umar instructed that these land cannot be sold off or divided,instead should collectively belong to all Muslims.

• Initially the tax was imposed on land owned by non-Muslims, but when the majority of the society submit to the new ruler and the people embraced Islam, the government then began to impose it on all the people.

• In other words, all land owners were subject to al-kharāj. According to Muhammad Diya’ al-Din al-Rais this went on until a point when the meaning of al-kharāj evolved to mean land tax exclusively.

- 3.3.3 Al-Kharaj as rentCalliph ‘Umar’s implementation of al-kharaj had set

a fixed rate, which means something was like rental.

For that purpose, Caliph ‘Umar rented land for one dirham and one qafiz per jarib annually. That does not include the farms and date orchards. He did not impose taxes on trees.

Ziaul Haque commented kharaj means lease, rental, revenue or product (ghallah) : the Arabs refer to products of land, house or slaves as kharāj in the sense of income. In a hadith this was referred to as income that is accompanied by responsibility.

• Current Practise – Quit Rent- Section 5 NLC-Definition of land revenue-every sum now due , or which shall thereafter become due , to the State authority on account of any premium or rent payable in respect of alienated land, or under any licence or permit relating to land, and fees of any kind…………chargeable under this Act or any previous land law

• Rent includes :– Any annual sum payable to the State authority by

way of rent;– Any other annual pay payment due to the State

authority which by any written law is to be collected as if it were rent or land revenue;

– Any fee due to State authority in respect of arrears of rent by virtue of rules under section 14.

• 10th schedule of Federal Constitution-tax is one of the state financial source

• Section 14 NLC-general provision on tax• Tax differs according to types, category and

area • Paid annually-due very June