Abstract
The term fay' theory means in this article the theory that the state reserves for itself the absolute title to all lands in the conquered territory. By most of the early historical traditions of both Hijaz and Iraq the word fay' meant the spoils of war in general, the fourfifiths of which were to be devided among the troops, and further, only by the tribal traditions of Iraq collected by Saif b. 'Umar, the Sawafi, confiscated state domains in the Sawad. The consensus of the ancient fiqh school of Iraq was that the Sawafi, as part of general spoils, should have been devided among the muqatila, and that of the ancient fiqh school of Hijaz was that all lands in the conquered territory became the common property of all Muslims.
The use of fay' signifying lands reserved for future generations of Muslims was first clearly observed in the decrees of 'Umar II. The victory in the fay' theory of the Hijazian school over the Iraqian school was achieved not as the result of any scholastic disputes between the two schools but as the result of the Umayyads acceptance of the former theory as the theoretical basis of their land policy. Once the new conception of fay' was established by Caliph's decrees, all jurists of the Empire began to work out the elaborated theory of state ownership of all conquered lands. The fay' theory was at last formulated by Ibn Sallam in its final form in the early 9th century. According to him the lands in the Sawad was fay' mawquf (reserved fay') for the benefit of ever increasing future generations of all Muslims and the legal position of reserved fay' was similar to that of tenanted land and, therefore, the kharaj was identical with the rent paye l to the state.
