As for analogical reasoning (qiyās):

Those who liken property to persons (riqāb) argue that, just as the unbelievers do not possess legal title over their own persons, so too they do not possess title over their wealth—much like the case of rebels vis-à-vis the lawful ruler, for the rebel is not deemed owner with respect to either lives or goods.

Others contend that whoever does not own a thing is held liable for it should its very substance perish, and it is unanimously agreed that the unbelievers are not liable for Muslim property. From this they conclude that the unbelievers must in fact be owners; for had they not been, liability would have fallen upon them.

The view that distinguishes between the ruling before the spoils are divided and after, or between property seized by the polytheists through force and that which drifted to them without force—such as a runaway slave or a stray horse—has no sound basis. One must either say that the polytheist acquires ownership of a Muslim’s property or that he does not, unless a revealed text establishes an intermediate ruling. The proponents of this nuanced stance relied solely on the ḥadīth transmitted by al-Ḥasan ibn ʿUmārah, from ʿAbd al-Malik ibn Maysarah, from Ṭāwūs, from Ibn ʿAbbās:

“A man came upon his camel which the idolaters had taken. The Messenger of Allah—peace and blessings be upon him—said: ‘If you find it before the booty is apportioned, it is yours; if you find it after the division, you may reclaim it for its market value.’”

Yet al-Ḥasan ibn ʿUmārah is unanimously judged weak, and the ḥadīth scholars do not accept his reports as proof.

What Mālik appears to have relied on, rather, is the judicial ruling of ʿUmar to that effect; even so, Mālik does not oblige the owner to redeem the item after distribution at its price, which is the plain reading of the ḥadīth. Abū Ḥanīfa’s exception of the “umm walad” (a concubine who has borne her master a child) and the mudabbar (a slave to be freed upon the master’s death) from all other sorts of property is likewise without substance, for he holds that the unbelievers acquire ownership of every kind of Muslim property save these two.

Equally tenuous is Mālik’s view regarding the umm walad: if her original master discovers her after the division, the ruler must ransom her; if he refuses, the master presently owning her is compelled to ransom her; and if that owner lacks funds, she is handed over to the first master and the one in whose share she fell is repaid her value as a debt whenever able. For if the unbelievers never owned her, the first master should recover her without payment; and if they did own her, he has no legal claim to her. Moreover, there is no distinction between her and other property unless a sound textual proof establishes one.

From this basic divergence—whether or not the polytheist acquires Muslim property—spring further disagreements. Thus the jurists differed about a non-Muslim who embraces Islam while holding Muslim property: does his title to it remain valid? Mālik and Abū Ḥanīfa said that it does; al-Shāfiʿī, consistent with his principle, said that it does not.

Mālik and Abū Ḥanīfa also disagreed when a Muslim infiltrates enemy territory by stealth and takes from them property belonging to another Muslim. Abū Ḥanīfa held that the taker now has a stronger claim to it, and if the original owner seeks it he must pay its price; Mālik maintained that the property reverts to its owner outright, thereby departing from his own foundational view.

Likewise, they disputed the ruling on a belligerent unbeliever who accepts Islam, migrates, and leaves behind in the land of war his children and wife