from the people of the towns belongs to Allah and the Messenger”—to the end of the verse.

They did not seek the consent of the combatants who had acquired the spoils. Indeed, many combatants requested that the land be divided, but their requests were not granted. Bilāl, for example, asked ‘Umar to divide the land of Syria, and al-Zubayr asked him to divide the land of Egypt, but these requests were not granted. None of the caliphs sought any combatant’s consent in this matter.

This is among the arguments advanced by those who hold that land becomes fay’ by the very act of conquest. This is also explicitly stated as his school’s position, as by Ismā‘īl ibn Ishāq. They argued that land is not included in spoils of war, for Allah forbade the Children of Israel to take spoils, yet granted them ownership of land. It follows that land is not included in spoils of war. This view is mentioned as one position reported from Ahmad.

A third position is also reported from him, agreeing with al-Shāfi‘ī: both immovable and movable property must be divided, since both constitute spoils of war. Al-Shāfi‘ī said: “Mecca was not conquered by force, but through a peace agreement, so its case cannot be used as evidence against me.” Those who report that he said it was conquered by force—such as the author of al-Wasīt and others—have misrepresented his position.

He also said: “For, concerning the Sawād, I do not know what to say except to form a supposition informed by knowledge and the supposition that ‘Umar obtained the combatants’ consent, as Qays ibn Hāritha related.” A detailed discussion of this belongs elsewhere.

The majority’s position is the most balanced of these views and the closest to the Quran, the Sunnah, and established principles. They say: “We give the ruler a choice between the two courses based on judgment and public interest, not on personal desire and preference.”

The same applies to every matter in which those in authority are given a choice, and to anyone empowered to act on another’s behalf, such as the administrator of an endowment, an orphan’s guardian, or an agent with unrestricted authority. Their choice is not governed by personal preference and desire, but by considered judgment, careful examination, and the pursuit of the most beneficial permissible course—as in the case of a man beset