ABSTRACT
The basic legal principle that governs the Hanafite position on taxation is summarised in the following sentence ascribed to Abii I;Ianifa:
In contrast to all other commodities, the productive lands in our territory are never exempted from taxation. This taxation consists either of khariij or of cushr ( a/-ariit/.i n-niimiyatu Iii takhlu can wa:;.ifat in fi diirinii wa-1-wa:;.ifat" imma 1-khariiju awi /-cushr). 1
Whereas European feudalism recognised the maxim 'Nul/e terre sans seigneur', the Hanafite jurists adhered to the principle 'Nulle terre sans taxe'. 2 The right of the state to tax all landed property was never questioned by the Hanafite jurists. It is, therefore, not coincidental that the first known Hanafite book of law is Abu Yiisufs Kitiib al-khariij, the 'Book on the Landtax'. Hanafite jurists recognised only two legitimate forms of taxes to be levied on landed property: cwhr and khariij. It is well known and generally acknowledged that ··ushr is a tax on the landed property of Muslims. What is not well known and certainly not generally acknowledged by scholars is that according to Hanafite law not only cushr but also khariij are taxes payable by the proprietors of landed property. It is difficult to explain why this aspect of khariij as a tax on private landed property is not generally acknowledged by Western scholars. For nearly 200 years, specialists in the field have tried to draw attention to the fact that khartij is a tax payable by the private
proprietor of landed property. Some 170 years ago, von Hammer was the first to draw attention to this fact. 3 He was followed by Belin in the second half of the nineteenth century.4 Seventy years ago, Aghnides clearly stated that khariij proves ownership of property in Hanafite law, 5 a fact of which Gibb and Bowen reminded us some 20 years ago. 6 European historians, especially those concerned with the economic and social history of the Near and the Middle East, do not seem to accept this point of view. Even outstanding scholars such as Becker7 and, in his earlier works, Claude Cahen8 state that the Islamic law defines khariij as a tax the payment of which implies acknowledging state-held title of ownership to the lands concerned. 9 This is not the position of the Hanafites, although it is held by other Sunol schools of Islamic law. Western scholars have often been confused by the divergence of legal opinions on this question, as they tend to underestimate the differences between the Sunni: schools of law. Some scholars, therefore, simply pass over certain information in the Hanafite texts that they study. Some years ago, Paul Forand, in his essay on the Sawad lands of Iraq, drew extensively on the work of an early Hanafite jurist in order to describe the juridical status of the inhabitants of the Sawad lands without indicating that the jurist whom he quotes unequivocally states that the lands of the Sawad are the property of their owners if they pay khariij on them. 10 Other Western scholars try to reconcile the Orientalist understanding of Islamic law with their Hanafite texts. In a recently published important study on the pre-Islamic traditions relating to agriculture in Iraq and their influence on the Muslim reorganisation of the relations of production in agriculture, Morony points out that the Hanafite jurist Sarakhsi considers khariij lands as the private property of the tax payers. Morony then adds that with regard to khariij 'in fact al-Shaficl's interpretation was preferred by the legal scholars thus contributing to the van Berch em thesis ... ' 11 This holds true for Western scholars. Hanafite jurists continued to prefer the tradition of their own school.
