statement in the Book, together with the Prophet’s own practice—peace and blessings be upon him—which serves to clarify what the Revelation expressed summarily, not merely what it expressed in general terms.

As for Abū Ḥanīfah, he held that the imām is at liberty either to divide the land or to leave it with its non-Muslim occupants on condition that they pay a land-tax (kharāj). He based this on a report stating that “the Messenger of Allah—may Allah bless him and grant him peace—assigned Khaybar to its people on the basis of half the produce, then sent Ibn Rawāḥah, who apportioned it for them.” They argue that this shows the Prophet—peace and blessings be upon him—did not parcel out the land itself. Hence, the imām may choose between division and leaving it in their hands, and this is exactly what ʿUmar—may Allah be pleased with him—did.

If the inhabitants embrace Islam after Muslim forces have prevailed, the imām may likewise choose either to grant them clemency or to divide the land, as the Messenger of Allah—peace and blessings be upon him—did in Mecca, namely by granting a general amnesty. This, however, is valid only according to those who maintain that Mecca was conquered by force (ʿanwatan); scholars have differed on the matter, though the sounder view is that it was indeed taken by force, as related by Muslim.

Know, moreover, that the view of those who claim that the verse on fayʾ and the verse on booty (ghanīmah) together indicate discretionary choice, or that the verse on fayʾ abrogates or qualifies the verse on booty, is exceedingly weak—unless the two terms denote a single reality. Were that the case, the two verses would be in conflict: the verse in Sūrat al-Anfāl mandates the one-fifth levy (khums), whereas the verse in Sūrat al-Hashr requires distribution without such a levy. One verse would therefore have to abrogate the other, or else the imām would be free to impose or forego the khums with respect to all captured assets.

Some scholars have reported this position to be held by certain jurists—I believe he related it as an established view. According to anyone who seeks to reconcile the two verses in that manner, the land itself would not be divided, while everything other than land would be. Each verse would then be taken as qualifying or abrogating part of the other: the verse in al-Anfāl would restrict the general wording of the verse in al-Hashr with regard to everything except land, imposing the khums on those items; and the verse in al-Hashr would restrict the verse in al-Anfāl with regard to land, so that no khums would be due on it. Such a claim, however, cannot stand without proof.

Besides, the apparent sense of the verse in al-Hashr is that it addresses a category of property subject to a ruling different from that governing the property mentioned in the verse of al-Anfāl. The Most High says:

“for which you did not spur horse or camel” (al-Hashr 59:6),

which points to the very reason why no exclusive right is accorded to the army over and above the rest of the Muslims—whereas divisible spoils are precisely those seized through active pursuit on horse or foot.