Fiqh Al Zakah by Dr. Yusuf al Qardawi

There is an agreement among Muslim jurists that zakah is obligatory on the Muslim who has reached puberty, who is sane, who is free, and who owns the minimum assigned, nisab, according to the conditions in Shari'ah.1 We have previously discussed the clear texts of the Qur'an and authentic sayings of the Prophet that indicate this obligation. All these texts necessarily imply that zakah is an obligation. This has been inherited by Muslims generation after generation, and is overwhelmingly reported in both theory and application as a well known tenet of Islam. He who denies this obligation, without an excuse of being new in Islam and not having had a chance to study it, is a dis-believer, since such a denial amounts to apostating from Islam.

Muslims have also agreed that zakah, as an obligation of Islam, is not required from non-Muslims because it is a part of this religion of Islam and could not be expected of he who does not believe in Islam. By the same token, zakah will not be considered due for the past period of disbelief for a person who converts to Islam. Muslim jurists point to the hadith narrated by Ibn 'Abbas in the two correct books of hadith: Bukhari and Muslim:

The messenger of Allah (p) when he sent Mu'adh to Yemen told him: 'You are going to folks who are of the people of the Book. The first thing you call them to should be to testify that there is no god but God and that Muhammad is the Messenger of God. If they accept that, tell them that God has made it obligatory on them to pray five times every day and night. If they accept that then tell them that God has imposed zakah on them, to be taken from the rich among them and given to the poor among them.'2

This saying indicates, according to al Nawawi and others, that all obligations in Islam come only after the declaration of faith. That much is universally agreed upon.3

"And because zakah is one of the pillars of Islam," said the jurists, "it is not required from a disbeliever," In that sense, it is similar to prayer and fasting. There is another reason for the exemption of disbelievers from payment of zakah, mentioned by al Shirazi and approved by at Nawawi of the Shafi'ites. They both contend that zakah is an obligation that is not binding on disbelievers because they did not accept it to start with,4

be they from the people of war or the people of pledge. Consequently, a disbeliever is not obligated to pay it while he remains a disbeliever, and if he converts to Islam, should not be asked for any past dues of zakah for the period of disbelief.5

Not only is zakah not required from non-Muslims, it is also not acceptable from them as a form of worship, since the prerequisite for its acceptance is the declaration of faith in Islam. God says: "We shall turn to whatever deeds they do (in their lives) and We shall make such deed floating dust scattered about."6 But it should be added that good deeds reduce the severity of punishment in the hereafter, since punishment has degrees just as enjoyment has degrees.

All this applies to the born disbeliever. As for he who turns back from Islam to disbelief, zakah shall not be waived if it had already become due while he was Muslim.

Zakah is a direct responsibility on Muslims and tampering with one's faith by apostating does not waive this responsibility, just as financial responsibilities and due fines may not be waived. This is the Shafiite opinion, which contradicts Abu Hanifah.5

As for zakah due on the period of apostatehood, Shafiite jurists have differences among themselves. Some say zakah is due for that period. I agree with them, since it is a right of the poor and other deservants and should not be waived by apostatehood. It is similar to due fines and financial responsibilities.

A question may occur to us when we consider that Islam has made bountiful provisions for the people of the Book and other non-Muslims, providing them with the pledge of God and the pledge of his Messenger that their lives, properties, and liberties be protected under the Islamic state and that they have the same rights and obligations as Muslims. So why then did Islam make the difference with respect to zakah between Muslims and non-Muslims minorities that live under the Islamic state, despite the fact that zakah is a social obligation and a financial due, whose proceeds help the economically weak and needy citizens of the state?

To answer this question, we should point to two considerations. The first consideration is that zakah is a social duty, a defined right of the needy and destitute, a financial tax obligated by God to be taken from the wealthy in the nation and rendered to its poor in fulfillment of the right of brotherhood, the right of society, and the right of God.

The second consideration is that zakah is a form of worship in Islam and one of the five pillars on which Islam is established. In this way, zakah is similar to the declaration of faith, establishment of prayers, fasting during the month of Ramadan, and pilgrimage to Makkah.

We have shown in previous pages that zakah is associated with prayers in tens of verses in the Qur'an. In other verses it is related to repentance from the belief in partnerships with God. Knowing that establishment of prayers is the symbol of becoming Muslim and deserving the brotherhood of other Muslims.

Additionally, some of the proceeds of zakah shall be spent for the support of Islam, for raising high its banner, and. for the general interests of its message and state. This is the part known as "for the sake of God." Another portion is spent on reconciling hearts with Islam and establishing them on its path. The justice of Islam, its sensitivity in dealing with non-Muslims, and its respect of their beliefs precludes obligating them to pay a due that has clear religious character to the extent that it is one of the major symbols of Islam, one of its four principal forms of worship, and one of its five tenets.

After settling that zakah is not required religiously from non-Muslims because it is a form of worship, the question arises: Is it permissible to take an amount equal to zakah in the form of a regular tax from wealthy non-Muslims to be rendered to the poor?

Hence for Muslims what is paid is an obligation and a form of worship while for non-Muslims it is a simple tax. By so doing we avoid differentiating between citizens of the same state by imposing a financial burden on Muslims that has no equivalent on non-Muslims, and creating technical and administrative difficulties inherent in applying different rules on Muslims and non-Muslims.

This is a new matter which needs collective ijtihad of capable Muslim jurists.8 But until this is achieved, I find no reason why I should not put forward my opinion based on my research and my understanding of the subject, believing that such individual exertion of effort could open the way for a sound collective Ijtihad. If this opinion is correct, God alone deserves praise and if it is wrong it is I who should be blamed. What appears to me after research is that there is no reason why an equivalent to zakah should not be taken from the people of the pledge in the form of a tax if it is so decided by the proper authorities. The following points elaborate upon this assertion.

1. When Muslim jurists state that zakah is not required from non-Muslims, they are speaking of the religious kind of requirement which is related to reward and punishment in the hereafter. There is nothing, however, that prevents its establishment as a political requirement by the proper authorities, based on public need as perceived by legislators.

2. The reason jurists give for not obligating non-Muslims to pay zakah is that it is a duty to which non-Muslims did not commit themselves.9 This means that if non- Muslims accept such a duty there is no reason why it may not become mandatory.

3. The people of the pledge in Muslim lands used to pay a financial due to the Islamic state called by the Qur'an "jiziah" as a contribution towards the public expenditure of the state that provides them with protection, defense, social security, and disability, old age, and poverty insurance, like Muslims. This is clear in the action of Omar, who made these provisions when he saw some elderly jews begging at doors. The reality in Muslim countries today is that the people of the Book do not pay jiziah and reject the word itself. Is it thus possible that they should pay a substitute tax calculated like zakah but without the label of jiziah?

Historians, compilers of hadith, and jurists specialized in Islamic finance report that 'Umar bin al Khattab provided us with a precedent in this matter in his stand with the Christians of bani Taghlib. Abu 'Ubaid reports that al Nu'man bin Zar'ah asked 'Umar bin al Khattab about the question of bani Taghlib. 'Umar was about to collect jiziah from them, which would drive them to disperse in the land. Al Nu'man bin Zar'ah told 'Umar, "Oh Leader of Believers, bani Taghlib are Arabs. They are dismayed at the word jiziah. They don't own cash funds. They are people of agriculture and cattle and they can be instigated by our enemy. Please do not help your enemy by drifting them away." Then 'Umar reconciled with them on the condition that they pay double the amount of zakah.

Al Baihaqi reported from 'Ubadah bin al Nu'man, in a long saying, that the tribe argued, "We are Arabs. We don't pay what the non-Arabs pay. Take from us as your people take from each other", meaning zakah. 'Umar said, "No. This is an obligation on Muslims," They replied, "Impose whatever you want, but under that name, not under the name or jiziah." He agreed, and then they settled on doubling the amount due from them. In some versions of this saying 'Umar said, "Call it whatever you like."10

Imam Abu 'Ubaid comments on the action of the Leader of Believers, 'Umar, with bani Taghlib by saying, "In my opinion 'Umar used the word zakah and left the word jiziah because he noticed their abhorrence and rejection of the word jiziah. He feared that they would join and aid the Romans against Muslims, and realized that no harm would be done to Muslims by leaving aside that word as long as what needed to be collected was collected. So he agreed to collect the dues under the name of zakah, thus reconciling them with the state while still collecting their dues. He was correct in so doing, especially since it is reported in a saying from the Prophet (p) that God has put truth in the mouth and heart of 'Umar. Abdullah bin Mas'ud said, 'I have not seen 'Umar except as if an angel were on his forehead between his eyes holding him straight.'Ali is reported as having said, 'It was not unrealistic to say that wisdom always came from 'Umar's mouth,' and 'Aisha said, 'He was of a unique nature, as if he had prepared, for all difficulties, solutions that are exactly what is needed." Abu 'Ubaid added, "What he did with bani Taghlib was one of those exact solutions and one of those uncountable good deeds of 'Umar."11 So 'Umar did not see any wrong in collecting a due from Christians under the name of zakah, because of their dislike of the title jiziah, and doubled the amount of zakah owed by them through mutual agreement. For that reason al Zuhri said: there are no financial dues on the livestock of the people of the Book except the Christians of bani Taghlib or Christian 'Arabs, for whom livestock is the major part of their wealth.12

What 'Umar did was approved by other companions. So why can we not make a tax on the people of the pledge in Muslim countries today in place or the jiziah levied on them by the Islamic system. This tax would be in substitution for two mandates on Muslims, that of jihad, in which they sacrifice their own blood, and that of zakah, in which they sacrifice part of their wealth. Why could we not legislate such a tax after consultation with prominent figures, Muslim and Non-Muslims? This tax need not even be called zakah I believe that the act of 'Umar is an enlightening precedent for those who would like to take such an approach in contemporary circumstances with relation to problems of our age.

Shafiites and Hambalites have said, "If a group of non-Muslims was potentially powerful and refused to pay jiziah except with an agreement similar to that of bani Taghlib, and there was danger in not accepting its demand, and the Imam agreed to accept it to prevent such danger, it is permissible to do so if the amount collected from them is equal to or greater than jiziah."13 Undoubtedly this is a sound opinion that has strong support in the action of 'Umar regarding bani Taghlib.

There is no doubt that zakah on all growing forms of wealth is much more than jiziah. Jiziah is a small due exacted from men who are capable of carrying weapons, while zakah is imposed on men, women, children and insane individuals according to the view of the majority of jurists. However, doubling the amount of zakah on the people of the people of the pledge is not necessary. 'Umar did that with bani Taghlib only because it was a condition of an agreement they signed and accepted. Such a matter depends on the religiously conducted political decisions and on the public interest as well as that of the state and religion.

Ibn Rushd correctly raised this question under the title of "Zakah on the People of the Pledge," saying, "As for the people of the pledge, the majority's view is that they are not compelled to pay zakah. The only exception is the view of some scholars concerning doubling zakah on the Christians of bani Taghlib. Shafi'i, Abu Hanifah, Ahmad, and al Thawri offered such opinions too. However, it is not reported that Ma'lik expressed such a view. The formers refer to the action of 'Umar bin al Khattab as applicable only to that specific case since it does not seem to fit with the basic rules of Shari'ah."14

I may add that we have previously quoted Abu 'Ubaid's explanation of 'Umar's move.

It was not in violation of the basic rules of Shari'ah. Rather, it was a realization of the interests of Muslims and the removal of a potential threat to them. This means that there is no reason why it should be applicable only to that specific incident, especially in light or Prophet Muhammad's command to follow the tradition of his wise successors (al Khulaf' al Rashidin).

4. Our stance is supported by a precedent mentioned by Muhammad bin al Hasan, a disciple of Abu Hanifah. He said, "If a Muslim sells his zakatable land ('ushri) that is not Kharajable to a person of the pledge, that person becomes liable to the zakah on the land ('ushr). Being Zakatable is a description of land that does not change because of a change of ownership. It is not permissible to let the person of the pledge use the land without paying any dues.15

5. The people of the Book are ordained in their religion to perform zakah and to care for the poor. We have quoted earlier the verses of the Qur'an which point to this ordinance, such as the verse: "And they have been commanded no more than this: To worship God, offer Him sincere devotion, be true (in faith), to establish regular prayer, and to practice zakah and that is the religion right and straight."16

We have also quoted from their books as they exist today. Both Old and New Testaments have many statements that call for, and encourage, caring for the poor. So if the people of the Book are called to implement zakah, they are asked for something which has its seed in their own religion.l7 The only new issue being the estimation of the amount due and its compulsory character.

6. It is narrated from 'Umar bin al Khattab and some Followers that spending the proceeds of zakah on the people of the pledge is permissible. This will be discussed in detail in the part on the dispersement of zakah. If it is permissible to spend on them zakah that is collected from Muslims, why should it not be permissible to take zakah from their wealthy members and render it to their poor? This fulfills the social solidarity that must exist among all Muslims and non-Muslims who live under the Islamic state. In such a case, this duty may be called "tax of social insurance" or "tax of caring" or any similar name that distinguishes it from the Islamic zakah, so as not to disconcert their consciences or those of Muslims. The dispersement of the proceeds of each of these taxes should be distinctly separate. They are similar in ratio, rate, conditions, and the assets taxed, but they are different in name and dispersement since they have two different natures and are mandated by different authorities.