Hidden treasure (kanz), fiqh rulings

Kanz, in lexicon, is gathering and storing, buried wealth, or any gathered abundance; in law, the majority take it as what the people of the Jahiliyya buried, applying to any property, while the Shafi'is limit it to gold and silver and the Hanafis define it as property placed under the ground by any creator; kanz is wider than rikaz ^{1 2}.

An Islamic treasure is one whose Muslim origin is probable, as shown by an Islamic inscription or the name of a Muslim ruler. Two views: first, that it is not like a lost thing and its finder must keep it forever, with the ruler keeping it in the treasury; second, that it is like a found item, to be announced and then owned by the finder ^{2 3}. A Jahili treasure was buried by the pagans and is known by their marks, such as the names and images of their kings and their idols, or by its place in their graves or fortresses; it carries one fifth, by agreement, when its conditions are met ⁴.

This is treasure whose origin cannot be known, bearing no mark, or a mark that does not reveal its source, such as a coin minted in both periods. The Hanafis in the apparent view, the Malikis, Hanbalis and a Shafi'i view treat it as Jahili, with the rule of rikaz; some Hanafis and the sounder Shafi'i view treat it as Islamic, with the rule of a found item ⁵.

Jurists distinguish treasure found in the land of Islam from that found in the land of war, and the rulings depend on who owned the land where it lay ^{5 6}.

Most jurists require one fifth of treasure found in unowned or ownerless land, with four fifths to the finder, on the hadith: in the rikaz is one fifth ⁶. For owned land: the Malikis give four fifths to the owner by inheritance, or to the seller or donor if known, and treat it as a found item otherwise ⁷; the Shafi'is require the finder to offer it to the owner, then to the owner before him, until the one who revived the land, and he may not take it before ^{7 8}; the Hanbalis hold, in the sounder view, that the four fifths belong to the finder ^{7 8}. Treasure in endowed land belongs to whoever holds the land ⁸.

The Malikis and Hanbalis treat the unowned ground of the land of war like that of the land of Islam, with one fifth due ⁸. The Hanafis hold that treasure found in ownerless land in the land of war is wholly the finder's, since it is a permitted thing he took himself ^{8 9}. The Shafi'is divide: unguarded ground there is like ground in the land of Islam with a fifth due; guarded ground, in the sounder view, is rikaz with the same ruling ⁹.

If one entered under safe-conduct he may not take it: he must return it, and the Hanafis say that if return is impossible he gives it in charity. If he entered with the ruler's leave on a condition, he has what was stipulated, and he owes one fifth on what he took ^{9 10}.

The dhimmi is like a Muslim in owing one fifth and needs no ruler's leave. Al-Shaybani holds that a musta'min who finds treasure without leave has it all taken by the imam; if he had leave on a stated condition, he has what was stipulated, and the fifth is taken from it ^{11 12}.

Most jurists allow hiring a worker to extract treasure on conditions. The Hanafis hold a partnership in seeking treasure void, since it amounts to an agency to take a permitted thing, so each keeps what he takes; the Malikis and Hanbalis allow it, and the Hanbalis cite the report of Ibn Mas'ud that he, Ammar and Sa'd shared in Badr ^{12 13 14}.

Seeking treasure needs no leave of the ruler, except that the Malikis require it for mines to prevent strife. One who has an established hold on a spot may not be disturbed while he keeps working there ^{14 15}. On the grant of mines there is disagreement, treated in the entries on grant and mine ¹⁵.

The buried property must be presumed to have belonged to the Jahiliyya, meaning before the mission of the Prophet ﷺ, and the buried is what counts, not merely the minting ¹⁶. The Hanafis and Hanbalis require extraction from the land of Islam, the Malikis and Shafi'is do not ^{16 17}. On what the sea yields, such as pearls and ambergris: Abu Hanifa and Muhammad impose no fifth, Abu Yusuf does; the Hanbalis hold no zakat in the sounder view; the Malikis hold what the sea casts up is the finder's without fifth ^{16 17 18}. Most jurists do not require a minimum amount for treasure, as opposed to the Malikis' view of its minimum ¹⁸.

The finder, free or slave, Muslim or dhimmi, child or adult, owes the fifth, according to the Hanafis and those who agree with them; the majority rely on the general words: in the rikaz is one fifth ¹⁹. Impediments include the treasure's loss before it can be paid: the Shafi'is hold no fifth then, the Malikis keep the zakat if it is lost after it could be paid ¹⁹. A debt owed by the finder does not block the fifth for the Hanafis and Malikis; for the Shafi'is and Hanbalis the rule depends on whether the property is apparent or hidden ^{19 20 21}.

Al-Qurtubi reports a view that treasure is property from which the urgent dues, such as ransoming a captive and feeding the hungry, have not been paid ²².