Is the division of spoils of war permissible in the land of hostility (*dar al-Harb*)?
General Chapter
Al-Mughni
Book of Jihad
Primary text
The division of spoils is permissible in the land of hostility. This is the position held by Malik, Al-Awza'i, Al-Shafi'i, Ibn al-Mundhir, and Abu Thawr. The basis for this is that the Messenger of Allah (peace be upon him) never returned from a campaign where spoils were taken without dividing them and taking the fifth (*khums*) before departing, such as the expeditions of Banu Mustaliq, Hawazin, and Khaybar. Furthermore, ownership is established through force and subjugation, making the division valid just as in the land of Islam. Ownership is proven because complete subjugation has occurred, their possession has been nullified, and their authority over the spoils ceases; thus, ownership transfers to the captors. The enslavement of a captive's slave or the validity of the disbeliever's disposition over the spoils ceases, demonstrating the removal of their ownership.
Supporting text
The Hanafi school holds that division only occurs in the land of Islam because complete dominion is not achieved until the spoils are secured in the land of Islam. However, even if the division is conducted in the land of hostility, the division stands if decreed by the Imam, as it is an issue of *ijtihad* (independent legal reasoning).