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If a person becomes a Mussulman, who is indebted for any arrear of capitation-tax, such arrear is remitted: and in the same manner, the arrear of cap… - Burhan al-Din al-Murghinani
" "If a person becomes a Mussulman, who is indebted for any arrear of capitation-tax, such arrear is remitted: and in the same manner, the arrear of capitation-tax due from Zimmee is remitted upon his dying in a state of infidelity. Shafei holds that the tax is not remitted in either case; because it was due either in return for protection to the person, or in return for permission to reside in the mussulman territory; and the Zimmee or convert has continued under protection, and resided in the Mussulman territory: the return from him, therefore, is not to be remitted in consequence of the supervenient circumstance of death, or convention of the faith; in the same manner, as in case of hire, or of composition for blood;—in other words, if capitation tax be a return for residence, it comes under the construction hire, and is not remitted in consequence of death, or conversion to the faith, in the same manner as if a Zimme were to hire a house and reside therein for the period agreed upon, and then die, or embrace the faith, in which case the rent of the house does not cease; and so likewise with respect to capitation-tax:—or, if capitation-tax be a return for protection to the person, it comes under the construction of a composition for blood, and is not remitted in consequence of death or conversion to the faith, in the same manner as if a Zimme were wilfully to kill a person, and afterwards enter into composition for the murder with the friends of the deceased, for a certain consideration, and them become a Mussulman, or die, in which case the consideration is not remitted from him;—and so likewise capitation-tax, (which is the consideration for protection to his person,) is not remitted. The arguments of our doctors upon this point are threefold.—First, the prophet has declared that "capitation-tax is not incumbent upon Mussulmans:"—Secondly, capitation-tax is a species of punishment, inflicted upon infidels on account of their infidelity, whence it is termed Yizyat, which is derived from Yizya, meaning retribution; now the temporal punishment of infidelity is remitted in consequence of conversion to the faith; and after death it cannot be inflicted, because temporal punishments are instituted solely for the purpose of removing evil, which is removed by either death or Islám:—THIRDLY, capitation-tax is a substitute for aid to the Mussulmans, and as the infidel in question, upon embracing the faith, becomes enabled to aid them in his own person, capitation-tax consequently drops upon his Islám.—With respect to the a to the argument adduced by Shafei, we reply that capitation-tax is neither consideration for protection to person, nor residence, because protection to the person is established in virtue of humanity, and a Zimme resides, in the mussulman territory, within his own dwelling; wherefore the case does not admit that a consideration, for protection to his person, or for residence, should be exacted from him.
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About Burhan al-Din al-Murghinani
Burhān al-Dīn Abu’l-Ḥasan ‘Alī bin Abī Bakr bin ‘Abd al-Jalīl al-Farghānī al-Marghīnānī (Arabic: برهان الدين المرغيناني) was an Islamic scholar of the school of jurisprudence. He was born in Marghinan near Farghana in 530/1135 (in present day ) He died in 593/1197.
Also Known As
Alternative Names:
Ali ibn Abu Bakr al- Marghinani
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Burhān al-Dīn Abu’l-Ḥasan ‘Alī bin Abī Bakr bin ‘Abd al-Jalīl al-Farghānī al-Marghīnānī[
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ʻAlī ibn Abī Bakr al-Marghīnānī
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Abul Hasan Ali bin Abu Bakr bin Abdul Jalil Farghani Marghinani Rashtani
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Additional quotes by Burhan al-Din al-Murghinani
CAPITATION-TAX is to be imposed upon Kitabees, because this is mentioned in the Koran: and it is in the same manner to be imposed upon Majoosees, as the prophet imposed capitation-tax upon Majoosees.—Capitation-tax is also imposed upon the idolaters of Ajim, [Persia.] This is contrary to the opinion of Shafei, for he argues that destruction is incurred by all infidels; but the legality of abstaining from it, in consideration of a capitation-tax, with respect to Kitabees. is known from the word of KORAN, and with respect to Majoosees, from the traditions; any others, therefore, than those, (namely, idolaters,) remain subject to the original penalty, which is destruction. The argument of our doctors is that it is lawful to make slaves of the Idolaters of Ajim, it follows that it is also lawful to impose capitation-tax upon them because, in the same manner as, by reducing them to slavery, they are deprived of power over their own persons, so also, they are deprived of power over their own persons by the imposition of capitation-tax, since they must in this case work, and pay the Mussalmans the produce of their labour, and their subsistence is furnished from their labour. If a Mussulman army subdue an infidel territory before any capitation-tax be established, the inhabitants, together with their wives and children, are all plunder, and the property of the state, as it is lawful to reduce to slavery all infidels, whether they be Kitcbees, Majoofees, or idolaters.
WHOREDOM and bastardy are defect with regard to a female slave, but not with regard to a male. because the object, in purchase of a female slave, is cohabitation and the generation of children, which must be affected by either of the above circumstances; whereas, the object in the purchase of a male slave is the use of his services, the value of which is not depreciated by his committing to whoredom.—IF, however, a male slave be much addicted to whoredom, our lawyers are of opinion that it is a defect, because in the pursuit of women he neglects the service of his master.
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"It is not lawful to make war upon any people who have never before been called to the faith, without previously requiring them to embrace it, because the Prophet so instructed his commanders, directing them to call the infidels to the faith, and also because the people will hence perceive that they are attacked for the sake of religion, and not for the sake of taking their property, or making slaves of their children, and on this consideration it is possible that they may be induced to agree to the call, in order to save themselves from the troubles of war.
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