the division,” indicates that the assessment concerned the division between the Muslims and the Jews. It therefore supports Mālik’s ruling, followed by all his disciples, that partners may divide the fruit of date palms among themselves on the basis of an estimate, since the Jews were partners with the Muslims in the fruit by virtue of their labour. This may have concerned one group of Jews in some of their fortresses and settlements, while the other reports—describing the Jews’ guaranteeing the Muslims’ share at the assessed amount, or being given the choice of taking it without mention of a guarantee—concerned other groups elsewhere, for Khaybar comprised many fortresses.
As for giving them the choice of taking the fruit still on the palms in return for the assessed quantity of dates, to be delivered at harvest without their guaranteeing that quantity, there is no objection to this. A number of scholars have permitted it, and it accords by analogy with Mālik’s position on assessment for zakat. But giving them the choice of taking the fruit still on the palms in return for the assessed quantity of dates, which they guarantee to deliver at harvest, constitutes muzābanah (exchanging fruit on the trees for a fixed quantity of harvested fruit). This could only have been a practice subsequently abrogated, as we have mentioned—and Allah knows best. Some scholars have reportedly permitted it, but that is an unlikely position.
Orchard sharecropping, however, remains valid and has not been abrogated. This is demonstrated by what we have mentioned concerning Abū Bakr and Umar, may Allah be pleased with them both, retaining the Jews under the sharecropping arrangement that the Prophet, peace be upon him, had made with them.
Among our arguments establishing that the Jews of Khaybar were not slaves belonging to the Muslims is that Abū Bakr and Umar retained them under that sharecropping arrangement, after which Umar expelled them to Syria. Had they been slaves belonging to the Muslims, he would not have deprived the Muslims of their property. Thus, people conquered by force are not slaves when they are left in their settlements and the jizyah is imposed upon them. Rather, they are free people under a covenant of protection.
Ibn al-Qāsim was asked about the women of protected non-Muslim communities conquered by force, such as the people of Egypt: was it permissible for a man to look at their hair? He replied: “It is not permissible for a man to look at their hair or at any part of their bodies that must be concealed.”
He was asked: “Are they not like slave women?”
He replied: “No; rather, they are free women. The blood money for one of them who was killed was five hundred, and any of them who embraced Islam was free. They are therefore free women, and the same prohibitions apply to them as to free women.”