Fifth Issue: How many categories of jizyah are there?
In their view jizyah is of three kinds.
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The jizyah of conquest (ʿanwiyyah): this is the levy we have already discussed—imposed upon those who were at war after they have been subdued.
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The treaty jizyah (ṣulḥiyyah): this is what the non-Muslims voluntarily offer so that hostilities may be lifted from them. For this type there is no predetermined scale—neither as to the amount due, nor the persons liable, nor the time of payment. All of that depends entirely on whatever terms are concluded between the Muslims and the treaty-partners. Someone might object that, if accepting a treaty jizyah is obligatory for the Muslims, there must be some minimum which, once the disbelievers volunteer it, obliges the Muslims to accept; in that case its lower limit would be defined, whereas its upper limit would remain open-ended.
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The tithe-jizyah (ʿushriyyah): the majority of jurists hold that the People of the Covenant are not subject to any tithe or zakat on their wealth at all, apart from a report concerning one group who doubled the charity (ṣadaqah) on the Christian tribe of Banū Taghlib—that is, they required them to pay twice what Muslims pay in charity on the items for which zakat is due. Those who said this include al-Shāfiʿī, Abū Ḥanīfah, Aḥmad, and al-Thawrī, and it was the practice of ʿUmar ibn al-Khaṭṭāb—may Allah be pleased with him—with that tribe. No explicit statement from Mālik on the point has been preserved, according to the narrators, and the matter has already been discussed in the Book of Zakāt.
They disagreed over whether the tithe becomes obligatory on goods that such people bring into Muslim lands by the very act of trade, or by permission if they are outsiders at war, or only when it has been stipulated. Mālik and many other scholars held that merchants from among the People of the Covenant, who already pay the head-tax by virtue of their residence in their own towns, must pay the tithe on whatever goods they transport from one region to another—except for what they bring into Madinah, where only half the tithe is taken.
Abū Ḥanīfah agreed with Mālik that liability arises through permission to trade or through the trade itself, but he differed over the rate, holding that only half the tithe is due.
Mālik did not require, for the tithe he imposes, either a minimum amount (niṣāb) or the lapse of a year (ḥawl). Abū Ḥanīfah, however, stipulates both—a full year and the same niṣāb that applies to Muslims, as detailed in the Book of Zakāt.
Al-Shāfiʿī said: in principle there is no tithe at all upon them, nor even half-tithe, whether through the act of commerce or otherwise; nothing is fixed except what is mutually agreed upon or stipulated. According to him, therefore, the tithe-jizyah counts as a form of treaty jizyah, whereas on the view of Mālik and Abū Ḥanīfah it constitutes a third genus of jizyah, distinct from both the treaty type and the per-capita head-tax.
The root of their disagreement is that no Sunnah traceable to the Messenger of Allah—peace and blessings be upon him—has reached us on the matter; only the precedent of ʿUmar ibn al-Khaṭṭāb is established. Whoever believes that ʿUmar acted on the basis of a directive he had from the Messenger of Allah considers his practice to be binding Sunnah; whereas whoever regards it as a negotiated condition—one he would have cited had it been otherwise—holds that it is not a mandatory Sunnah unless stipulated.
Abū ʿUbayd has reported in