And for this reason, all scholars hold that Allah’s words concerning those who wage war against Him and His Messenger:

“The penalty for those who wage war against Allah and His Messenger and strive to spread corruption in the land is only that they be killed or crucified, or have their hands and feet cut off on opposite sides, or be banished from the land,”

do not give the ruler an unrestricted choice based on personal preference. In all four of these matters, they agree that one course is required in one situation and another in another.

Most of them maintain that these circumstances are defined by the revealed text: if they kill, they must be executed; if they take property without killing, their hands and feet must be cut off on opposite sides. This is the position of Abū Hanīfa, al-Shāfi‘ī, and Ahmad. A hadith traced back to the Prophet has also been related to this effect.

Others maintain that the particular penalty is determined by the ruler’s independent judgment, as Mālik held. Thus, if he considers execution to serve the public interest, he executes the offender, even if the offender has not killed anyone.

The same principle applies to “the ruler’s choice concerning land conquered by force”: whether to make it fay’ (property held for the Muslim community) or spoils of war. This is the position of most scholars, including Abū Hanīfa, al-Thawrī, Abū ‘Ubayd, and Ahmad, according to the well-known position reported from him.

They said that if he considers it beneficial to treat the land as spoils of war, he distributes it among the combatants who acquired it, just as the Prophet, may Allah bless him and grant him peace, distributed Khaybar. If he considers it best not to distribute it, that is permissible, just as the Prophet, may Allah bless him and grant him peace, did not distribute Mecca, although he conquered it by force. This is attested by authentic hadiths and widely transmitted accounts of his life, and is the position of the majority of scholars.

Moreover, his successors—Abū Bakr, ‘Umar, and ‘Uthmān—conquered the lands they conquered from the Arabs, Byzantines, and Persians, including Iraq, Syria, Egypt, and Khurāsān. Yet none of the caliphs distributed any of the conquered real estate among the combatants who acquired it, whether in the Sawād or elsewhere. Rather, they made the real estate fay’ for the Muslims, bringing it within the scope of His words:

“Whatever Allah has bestowed upon His Messenger