and his property. Does what he has left behind retain the inviolability normally accorded to a Muslim’s wealth, wife, and offspring—so that it would be impermissible for the Muslims, once they prevail, to take possession of them—or does what he abandoned enjoy no such protection?

Some jurists maintained that everything he left behind is safeguarded by the sanctity of Islam.

Others held that it enjoys no protection whatsoever.

A third group drew a distinction between wealth on the one hand and wife and children on the other, saying: the property has no protected status, whereas the wife and offspring do. This position, however, runs counter to legal analogy, and it is the view of Mālik.

The basic principle is that the factor which renders wealth lawful to seize is disbelief, and the factor which safeguards it is Islam, just as the Prophet—peace and blessings be upon him—said: “When they say it, they protect from me their lives and their property.”

Whoever therefore claims that some element other than disbelief—such as mere enemy possession—makes property licit must furnish proof, and there is no evidence here capable of overriding this foundational rule. Allah knows best.

Section Five
The Ruling on Land Conquered by Force (ʿAnwah)

The jurists disagreed over territory that the Muslims seize by direct assault.

Mālik said: The land is not to be divided among the troops; rather, it is to be held as a perpetual endowment (waqf), and its kharāj is to be spent on Muslim interests—stipends for the fighters, the construction of bridges and mosques, and other avenues of public welfare—unless, at some point, the imam judges that the public interest requires division, in which case he may allot the land.

Al-Shāfiʿī said: Land that is newly opened to Islam must be divided just as other spoils are divided—that is, into five shares.

Abū Ḥanīfah said: The imam has discretion: he may divide the land among the Muslims, or he may impose kharāj on its non-Muslim inhabitants and leave it in their hands.

The root of their disagreement lies in what appears to be a conflict between the verse in Sūrat al-Anfāl and the verse in Sūrat al-Hashr. The verse in al-Anfāl, on its face, requires that everything taken as booty be subjected to the one-fifth allotment:

“Know that whatever you acquire as booty…” (al-Anfāl 8:41).

As for His words in al-Hashr:

“and those who come after them…” (al-Hashr 59:10),

coming after His mention of those to whom the fayʾ is due, they can be understood to mean that all people—present and future—share in the fayʾ. This was reported from ʿUmar, may Allah be pleased with him, who said of the verse that it encompassed the whole of mankind, even the shepherd in Kadāʾ (or words to that effect). Accordingly, the lands conquered in his time—in Iraq and Egypt—were not apportioned.

Thus, whoever holds that the two verses address the same matter, and that the verse in al-Hashr qualifies the verse in al-Anfāl, exempts land from the khums ruling.

But whoever holds that the two verses deal with distinct subjects—the verse in al-Anfāl with booty (ghanīmah) and the verse in al-Hashr with fayʾ, as the wording suggests—insists that the land must indeed be subjected to khums, especially since it is established that the Prophet—peace and blessings be upon him—“divided Khaybar among the fighters.”

They therefore say: it is obligatory to divide the land, by virtue of the general