Do non-believers (Kuffar) acquire ownership of the property of Muslims through conquest (Qahr)?
General Chapter
Al-Mughni
Book of Jihad
Primary text
Non-believers acquire ownership of Muslim property through conquest. This is the position of Malik and Abu Hanifa. The evidence supporting this view is that conquest is a means of acquiring ownership, just as it allows a Muslim to acquire the property of a non-believer, analogous to sale. Furthermore, if the Muslim owner catches the property before division by the Imam, he has a greater right to it, implying that ownership is established first, which is why the Prophet (PBUH) took back the she-camel when he found it undivided or unpurchased. Ownership is established even before moving the property to the non-believer's domain (Dar al-Kufr).
Supporting text
Abu al-Khattab, representing the apparent view of Ahmad, holds that they do not acquire ownership. This view relies on the analogy of the Prophet's she-camel, arguing that property under unauthorized seizure does not transfer ownership, similar to usurpation (Ghasb). Also, those who cannot acquire another's person (slavery) cannot acquire their property by force, similar to how one Muslim cannot take another Muslim's property forcefully. The prohibition against taking the property after the Imam's division is because the Imam's division operates like a judgment (Hukm), and judicial rulings regarding matters of ijtihad are binding.