Section Six: The Distribution of Fayʾ
According to the majority of jurists, fayʾ is every form of property that passes to the Muslims from the unbelievers purely out of fear and intimidation, without any pursuit by cavalry or infantry.
Scholars have differed over how this wealth is to be allocated. One group holds that fayʾ belongs to all Muslims, rich and poor alike. The Imām, they say, may give from it to the soldiers, judges, and governors, and may spend it on communal needs that befall the Muslims—such as building bridges, repairing mosques, and the like. No khums (one-fifth levy) is taken from it. This is the position of the majority and is authentically reported from Abū Bakr and ʿUmar.
Al-Shāfiʿī, on the other hand, maintains that a khums is due. That fifth is to be divided among the categories mentioned in the verse on spoils—precisely the same beneficiaries who receive the khums of ghanīmah—while the remainder is left to the Imām’s discretion, to spend on himself, his dependants, and whomever he sees fit.
I believe some scholars have said that fayʾ is not subject to a khums, yet should still be divided among the five categories who receive the khums. This, as far as I know, is one of al-Shāfiʿī’s reported views.
The reason for the disagreement—whether all of fayʾ should be given to the five categories or disposed of at the Imām’s discretion—lies in their earlier dispute over how to apportion the khums of war booty. As noted before, those who treat the verse’s mention of the categories as merely indicative of the deserving recipients say that the wealth may also go to those beyond them. Those who regard the wording as an exhaustive list restrict the distribution to those very categories, considering the verse specific rather than illustrative.
As for subjecting fayʾ itself to the khums, no one said so before al-Shāfiʿī. What led him to this opinion was his observation that the verse assigns fayʾ to the same number of categories that receive the khums, which led him to assume that a fifth must therefore apply. Yet the apparent sense of the verse is otherwise: the division pertains to the entire fayʾ, not merely a portion of it—a view that, I believe, is also held by a number of scholars.
Muslim transmits from ʿUmar:
“The property of Banū al-Naḍīr was among that which Allah granted to His Messenger without the Muslims having to spur horse or camel against it. It belonged exclusively to the Prophet—may Allah bless him and grant him peace. He would spend from it on his family for a year, and whatever remained he would devote to horses and weapons as equipment in the path of Allah.”
This ḥadīth supports the position of Imām Mālik.