In sum, the impediments connected with its being an endowment require examination. Its status as an endowment, however, can never in itself be regarded as an impediment under the principles of Islamic law. As for the argument that cultivation distracts people from jihad, this applies to all lands, whether subject to the tithe or to kharāj, and that is a separate issue.

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Mecca presents a parallel case. There is no doubt that it was conquered by force. The view that it was acquired by treaty, thereby confirming its owners’ title and permitting them to sell it and otherwise dispose of it as with other lands acquired by treaty—as al-Shāfi‘ī maintains—is weak on numerous grounds established by transmitted reports.

Moreover, such an arrangement is not permissible. If the Muslim ruler concludes a treaty with a group of polytheists without imposing either jizyah or kharāj, this is permissible only where there is a need, “as the Prophet, may Allah bless him and grant him peace, did in the year of al-Hudaybiyah.” But if we acquire land by treaty whose inhabitants are polytheists outside the categories from whom jizyah may be accepted, then, by the consensus of the Muslims, they may not be allowed to remain without paying jizyah.

Furthermore, in the following year, the Prophet, may Allah bless him and grant him peace, stipulated