Does a non-Muslim (Dhimmi) have the right to acquire ownership through revitalization (Ihya') of ownerless land in the Islamic state (Dar al-Islam)?
General Chapter
Al-Mughni
Book of Reviving Dead Land
Primary text
The acquisition of ownerless land through revitalization (Ihya') is permissible for both Muslims and Dhimmis alike. This position is affirmed by Ahmad, Malik, and Abu Hanifa. The evidence supporting this general permissibility is the comprehensive saying of the Prophet, peace be upon him: "Whoever revives dead land, it belongs to him." Revitalization is considered a means of ownership, and as such, it is shared between the Muslim and the Dhimmi, just as other means of acquisition are shared. Furthermore, the Dhimmi is considered a resident of the Dar al-Islam and is subject to its rulings, allowing him to acquire land through Ihya' just as he acquires permissibles (Mubahat) such as fodder, firewood, game, buried treasure (Rakaz), minerals, and found items (Luqatah), which are all associated with the benefits (Marafiq) of the Islamic domain.
Supporting text
A dissenting view, attributed to a group of scholars within the Hanbali school, holds that the Dhimmi cannot own revitalized land in Dar al-Islam. This is supported by the narration where the Prophet, peace be upon him, stated: "The dead land (Mawat) belongs to Allah and His Messenger, then it is yours from me." This narration implies that the Mawat belongs specifically to the Muslims. Another argument for this view is that ownership of Mawat land is a right inherent to Dar al-Islam, which is exclusively for Muslims.