Fiqh Al Zakah by Dr. Yusuf al Qardawi

Jurists who agree that zakah is compulsory on the funds of sane Muslims after puberty, disagree on whether it is compulsory on the funds of the child and the insane individual. There exist two contrasting points of view. The first is that zakah is either not obligatory at all or only mandatory on specific kinds of wealth of children and the insane, and the second asserts that zakah is obligatory on all of their assets.

A. Abu 'Ubaid reports from Abu Ja'far al Baqer and al Sha'bi that there is no zakah on the funds of the orphan.18 Ibn Hazm mentions a similar view from al Nakh'i and Shuraih.19

B. It Is reported from al Hasan that there is no zakah on the wealth of the orphan except on agricultural products and livestock.20 Ibn Hazm reports in al Muhalla that Ibn Shabrumah had a similar view.21

C. In al Amwal, Mujahid is reported as saying that any form of wealth of the orphan that has growth potential such as livestock, agricultural products, and business funds, should be zakated, and any kind of wealth that is stagnant is not zakatable until the orphan reaches puberty, and should then be given to him.22 Al Lakhmi,, a Malikite jurist, stated that foregoing zakah on a child whose wealth does not grow is like the case in which the owner cannot make the wealth grow, e.g. buried treasure whose whereabouts are unknown, or an inheritance not know to the heir. Ibn Bashir explains that incapacitation in the case of the child is related to the nature of his ownership.

There is no disagreement that for the person who must pay zakah, inability to invest his wealth is not sufficient reason to waive zakah except for the case where the property is of a stagnant Character. Ibn al Hajeb contends that the argument of al Lakhml is weak.23

D. Abu Hanifah and his disciples argued that zakah is obligatory on agricultural products only, all other assets are exempt.24 Ibn Hazm commented that he knew of no one who preceded Abu Hanifah with such a distinction. But the author of al Bahr al Zakhkhar of the Zaidi school reported it from Zaid bin 'Ali and Ja'far al Sadiq,25

contemporaries of Abu Hanifah.26 However, it seems incredible that this view of Zaid, al Sadiq, and al Naser, who are of Ahl al Bait contradicts what is correctly reported from 'Ali. 'Ali used to pay zakah on funds of Abu Rafi's children, who were orphans. When Zaid was asked about this he replied, "We of Ahl al Bait deny this report."27

A. This group of scholars looked mainly at the second consideration mentioned earlier, i.e. that zakah is a pure worship, which requires intention. Children and the insane cannot fulfill this requirement. They are not, therefore, addressed with the command of worship. Prayer is not required from them, and for the same reason, zakah should not be.28

B. This opinion is supported by sunnah. Prophet Muhammad (p) said, "The Pen is suspended from three: The child until puberty, the sleeping until awakening, and the insane until recovery.29 Suspension of the Pen stands for cessation of the recording of sins and for the release from obligations, since obligation applies only to those who understand the address of God. Childhood, insanity, and sleep prevent that understanding.

C. Their stance is also supported by the holy verse, "of their goods, take zakah that so thou mightest purify and sanctify them."30 Purification is needed from sins and evil.

The child and the insane have none of these, and need no purification or sanctification, so they should not be among those from whom zakah must be taken.

It is ironic to notice that these three arguments do not stand in support of the Hanafite stance that zakah is obligatory on some kinds of the child's wealth and not others. On the other hand, these arguments may bolster the view of al Baqir, al Sha'bi, al Nakh'i and Shuraih since they perceive zakah as not required on all kinds of wealth belonging to the child and the insane.

D. The well-being of the child and the insane demands that their wealth stay intact and not be used up by zakah payments. Growth is not realized in the assets of the child and the insane because of their weakness and inability to sustain their matters. There is always the fear that the repetitive collection of zakah over years may consume all their wealth and leave them poor and in need.

This may be the reason behind the opinion of Mujahid that zakah is mandatory on that kind of wealth of the child and the insane that grows of its own such as agricultural products and livestock, and wealth that grows by action such as money used in business.

It could also be the reason for the report that al Hasan al Basri and Ibn Shabrumah only excluded the child's gold and silver from zakah. As for fruits, produce, and livestock, they have considered them zakatable since growth is realized in them, whereas money, gold and silver do not grow except through business ventures and investment. The child and the insane cannot engage in such ventures, so they are exempt from zakah on this kind of wealth.

This opinion is expressed by 'Ata', Jabir bin Zaid, Tawus, Mujahid, and al Zuhri, all of them are Followers. Of the Second Generation, Rabi'ah, Malik, al Shafi'i, Ahmad, Ishaq, al Hasan bin Saleh, Ibn Abi Laila, Ibn 'Uyainah, Abu 'Ubaid, and Abu Thawr agreed. This view is expressed by al Hadi and al Mu'ayad Billah of the Shiites; it is also the view of the Companions 'Umar, his son, Ali, 'Aisha, and Jabir. These did not make any exceptions like those made by Mujahid, al Hasan, Ibn Shabrumah, and Abu Hanifah.

1. They argue that the verses and authentic sayings about the mandate of zakah on the assets of the wealthy are general. They do not exclude children or the insane. Take as an example the verse "Of their wealth take zakah that so thou mightest purify and sanctify them." Ibn Hazm explains, "and see how general it is. It includes the child, the adult, the sane and the insane. All these are in need of purification and sanctification of God. They are all believers." Similarly, the Prophet told Mu'adh before he left for Yemen: "And inform them that God imposes on their funds a zakah to be taken from the wealthy and rendered to the poor among them." Children and the insane receive zakah if they are poor, so they must pay it if they are rich. Ibn Hazm continues, 'This general text is addressed to all wealthy Muslims, including the child and the insane.'31

2. Al Shafi'i reported from Yusef bin Mahak that the Messenger of God, (p) said:

"Invest the fund of the orphans so they may not be used up by zakah." The chain of narrators of this saying is correct, as confirmed by al Baihaqi and al Nawawi. But Yusef is a Follower who never met the Messenger of God (p) so his saying is mursal.

However, al Shafi'i says that this mursal saying is supported by the general implication of other texts and by what is authentically reported from the Companions that zakah is compulsory on the assets of orphans.32

Al Tabarani reported in his al Mu'jam al Awsat from Anas bin Malik that the Messenger of God (3) said. "Make trading with the funds of the orphans so the funds may not be consumed by zakah." Referring to al Hafez Zain al 'Iraqi, al Haitami said in Majma' al Zawa'id33, "I was told by my teacher and shiekh that the chain of this saying is correct.34 Al Tirmidhi reported from 'Amr bin Shu'aib from his father from his grandfather from the Prophet (p) ''He who is a guardian of an orphan should make business for the orphan and not let his assets be used up by zakah." The chain of this hadith is controversial but its meaning is reported authentically as being said by 'Umar bin al Khattab. Al Baihaqi reported through Sa'id bin al Musayyib that 'Umar bin al Khattab said, "make business with the funds of the orphans so they may not be consumed by zakah." Al Baihaqi found the chain to be correct and bolstered by other reports.35 Accordingly, these ordinances of the Prophet (p) indicate that zakah is compulsory on the wealth of orphans since the guardians are not permitted to make any voluntary contributions out of such wealth because these contributions make the orphans unnecessarily poorer36. God ordained in the Qur'an that guardians must not use the funds of orphans except for the latter's best interest, until orphans reach puberty.37

3. The views that, are authentically reported from the Companions also support this group. Abu 'Ubaid, al Baihaqi, and Ibn Hazm report that 'Umar, Ali, Abdullah bin 'Umar, 'Aishah, and Jabir bin Abdullah said that zakah is obligatory on the assets of children.38 There is no report that any Companion (m) opposed this view, except for a report from Ibn 'Abbas, which is too weak to use in argument.38

4. It is argued that the purpose of zakah itself supports this view. The intent of zakah is to satisfy the needs of the poor from the assets of the affluent, as a sign of thankfulness to God and purification of these assets. The fund of the child and the insane can accomodate zakah, just as they accomodate other financial responsibilities or fines.40 It is argued that guardians are responsible for paying zakah from the funds of the two categories the same way sane adults pay it. Guardians act on behalf of the child or the insane. This is required from, them, and must be fulfilled. The intention of the guardian can substitute for the intention of the owner of the funds.41

Some Malikites say the guardian must only pay zakah for the child if he were assured that what he was doing would be later approved by the child, but if not, he is not obliged to pay. When the guardian pays zakah his action should be witnessed, but Ibn Habib says that if he is trustworthy, his word alone is accepted.42 On the other hand, if the guardian fears that the child, after puberty, or the insane after recovery, would not approve that payment and ask him for compensation, the guardian, according to some Malikites should seek a ruling from a judge who believes zakah is mandatory from children and the insane in order to protect himself against and future liability.43

The evidence provided by those who regard zakah as mandatory on funds of children and the insane seems to outweigh that of the other view. It is the stance of the majority of scholars from among the Companions, the Followers, and later generations.

A. The universality of the texts and their covering of children and adults, sane and insane is a sound argument that should not be underestimated. God made zakah a right of the poor, the needy, and other deservants on the affluent. These texts did not make special provisions regarding the age or sanity of the rich, in spite of special attention Shari'ah gives to preserving the funds of orphans. 'Those who want to exclude children and the insane from zakah are called upon to furnish evidence from Qur'anic texts or from hadith.

B. The saying reported by Yusef bin Mahak commanding the investment of the funds of orphans in order not to let zakah payment wear them out is an authentic one.

Though it is mursal, it has corroberating reports and it is within the general trend of the texts. Additionally, it is supported by sayings of the Companions, as well as the saying of Anas reported by al Tabarani and confirmed by al Haitami and al 'Iraqi.

C. There is no doubt that the agreement of many Companions such as 'Umar, 'Ali, ' Aisha, Ibn 'Umar, and Jabir has great importance in such an issue of public concern and frequent occurrence, especially in a society in which martyrs and orphans were plenty.

No scholar would dare to neglect this agreement in understanding especially since these Companions lived at the same time as the Messenger, and were fully aware of the warnings to those who wasted the assets of orphans. It is significant that there is not a single report from any Companion to the effect that zakah is not mandatory on the funds of orphans. What is narrated by Ibn Mas'ud and Ibn 'Abbas is weak to the extent that it could not stand critical analysis.44

D. If we look carefully at the objective of zakah we may come to the conclusion that funds of a wealthy child or insane person should be covered by zakah, like other financial responsibilities on their funds. There is no doubt that zakah is a right of other people. It is covered by the verses, "and in their wealth, there is a defined right for he who asks and he who is destitute" and "zakah is only for the poor, the needy,...etc." This was the perception of the First Successor as seen in his saying to 'Umar: "By God I shall fight he who differentiates between prayer and zakah, since zakah is the right on wealth." This is reported in the two correct books (of hadith). There is universal agreement among scholars that the assets of the child and the insane are subject to the right of other people. Childhood and insanity do not preclude financial liability to others, including fines, due expenses, and other contractual responsibilities.45

Consequently, we come to the conclusion that zakah is binding on the wealth of children and insane individuals under the same conditions as applied to wealth of other people. With this conclusion we see that the views of the three major schools of jurisprudence outweight the view of the Hanafi school. The Hanafi School itself made zakah on breaking the fast and 'ushr (Zakah on land) obligatory on the child or the insane, so why exclude them from other forms of zakah? If 'ushr is obligated, zakah should be. There should be no distinction between 'ushr that is made necessary by the verse, "and give its dues the day of its harvest" and zakah that is made necessary by the verse,"'and in their wealth there is a right for he who asks and the destitute''. Similarly, there is no justification for making a distinction between the saying there is 'ushr (ten percent) in what is watered by the sky" and his saying, "There is one fourth of ten percent in silver currency." Therefore, the Hanafite's distinction between fruits and produce on one hand and other kinds of wealth on the other, based on the claim that the formers are provision for sustenance unlike the latter, is not justified rationally or by reference to texts. Hence Ibn Hazm came down hard against this distinction, saying, "I wonder about such acclaimed difference between zakah on produce and fruits and zakah on livestock, gold, and silver! If someone reversed it i.e., obligating zakah on the latter and exempting the former, would it not be as arbitrary?" Ibn Rushd said, "I am aware of no rationale for those who differentiate between produce of the land and other funds or between apparent and non-apparent assets.

A. Those who do not obligate zakah on the child and the insane claim that they are not covered by the verse, "of their wealth take zakah that so thou mightest purify and sanctify them" because purification means cleansing from sins and the child and the insane are not sinful. However, the fact that purification is not merely removal of sins should be emphasized. Purification includes moral uplifting, psychological growth, and training to be helpful and merciful; it also means purification of the assets themselves.

Even if we accept purification to be only for sins, the meaning of the verse need not be limited, according to al Nawawi.47 Zakah is not only purification. It is undisputed that there is another reason for zakah, i.e. fulfillment of the needs of Muslims. The child and the insane, as Muslims, can share in such a fulfillment.

B. As for the saying, "The Pen is suspended from three,,,etc.", it means according to al Nawawi that those three may not be held sinful. No one claims that they are sinful.

No one says zakah must be payed by them personally. My opinion is that zakah is obligatory on their assets. Their guardians are required to pay it just as they are asked to dispose of other financial responsibilities.48 The suspension of Pen from them does not imply waiving their financial responsibilities toward others, such as wives and other relatives. Why should the responsibilities toward the needy and the wayfarer be abandoned?

C. There is the argument that zakah is a form of worship just like prayer and requires intention. Since the child and the insane are not liable to having intentions, they should not be required to pay zakah. The reply to this is that we all agree that zakah is a worship, the twin of prayer and one of the pillars of Islam, but it should be added that zakah is a distinct worship because of its financial and social character. It is a financial worship that can be done by proxy. Rules applicable to rights of others (huquq al 'ibad)

apply to it. According to the Hanafites, a person of the pledge can be assigned to pay it on behalf of the zakah payer. Ibn Hazm adds, it is true zakah needs intention, but Muslims and Muslim governor are ordered to collect zakah by the verse, "take zakah out of their wealth." Therefore, if the zakah collector has that intention, he can take it from the funds of the absentee, the person who is in coma, the insane, and the child, without any need for their own intention.49

In summary, zakah is a financial worship that can be done by proxy, and the guardian, as an operator on behalf of the child or the insane, can fulfill it. It is unlike bodily worship such as prayer and fasting that need to be done by the person himself.

Exempting the child and the insane from prayer does not mean wavering zakah, because each is an obligation independent from the other. God did not ordain all obligations as a package deal, so that if one become compulsory the other does, and vice versa.50 If prayer is forgone for certain reason, zakah need not be abandoned. An obligation ordained by God or His Messenger can be waived only in accordance with the text from God or His Messenger. It may not be neglected without texts of the Qur'an or Sunnah because another obligation is relaxed.51

The statement of Abu 'Ubaid in this respect was most brilliant: The obligations of Islam must not be taken merely by analogy of one another since each of them is basic, independent and essential, each of them is performed in accordance with the way it is ordained in to Qur'an and Sunnah."52 "Prayer is a right to God (s) on all His servants.

zakah is a right given by God to the poor from the funds of the wealthy."53

The special interests of the child and the insane are to be balanced against the special interests of the poor and needy as well as those of the state and religion, and by imposing zakah on children and the insane their interests are not sacrificed. Zakah is taken from assets that grow actually or potentially. It is only obligated on properties that are in excess of essential needs. Some hanafi jurists went as far as considering zakah not obligated on money saved for necessary expenditure even if it were above the minimum assigned i.e. nisab. This will be discussed in Part Three,54 and is what I see applicable on child and the insane that own only liquid funds saved for necessary expenditure, until puberty, or the expected life-span of the insane.

Three points of importance should be mentioned before we come to the conclusion of this section.

Firstly, zakatable children are not necessarily orphans. They may have inherited their wealth from their mother's side or from someone other than their parents. The proper title for this section should be Zakah on the Assets of Children and not as very often cited, Zakah on the Assets of Orphans. This way we can eliminate a sentimental aspect of the issue. Let us not forget that a child's wealth may come to hundreds of thousand of dinars.

Secondly, there are sayings that instruct the guardians to invest orphans' assets so such assets will not be used up by zakah. An example is the saying of 'Amr bin Shu'aib from his father from his grandfather that "the Messenger of God (p) gave a talk to some people saying, 'For those who guard orphans, they should make business ventures with their funds on their behalf and not leave the funds idle to be consumed by zakah,"55 and the saying of Yusef bin Mahak that "the Messenger of Allah (p) said "seek investment of the funds of the orphans so they may not be used up by zakah."56 Guardians of orphans are obligated to invest these funds the same way they are required to pay zakah out of them. It is true that there is some weakness in the chain of these two sayings but they are strengthened by the following facts:

a. The meaning is reported through other chains that support each other.57

b. Similar statements are correctly attributed to some Companions.

c. The order to invest orphans' funds is in line with the verse, "and feed them and clothe them therewith"58, because the verse does not say "and feed them out of their funds" but rather "therewith", which implies the idea of using their funds for growth and investment and feeding them from the proceeds.

d. This kind of investment is well suited within the general approach of Islam in economic matters, i.e. the preference for investment and the prohibition of hoarding.

The ordinance (in the above sayings) is addressed to orphans' guardians in specific, and to the Muslims community and authorities in Muslim countries in general. It is therefore mandatory for the Muslim society and its government to preserve the funds of orphans, to see that they are invested and to provide necessary guarantees and detailed legislation to serve this purpose.

Thirdly, the Islamic society provides guarantees for orphans and the economically weak, so there should be no fear that orphans would be Iost if their assets were zakatable. Wealthy relatives are required, legally, to guarantee the sustenance of their orphaned relatives. Orphans are also insured by the state. God said, "they ask thee what they could spend in charity. Say: Whatever thee spend that is good, is for parents, and children, and orphans, and those in want, and for wayfarers, and whatever thee do that is good, God knows it well."59 "It is not righteousness that thee turn thy face toward east or west, but it is righteousness to believe in God, and the Last Day, and the angels, and the Books, and the Messengers, to spend of your substance - in spite of your love for it - for your kin, for orphans, for the needy, for the wayfarer, for those who ask and for the ransom of slaves."60 "And know that out of all the booty that theee may acquire in war, a fifth share is assigned to God, and to the apostle, and to the relatives, and to the orphans, and to the needy and the wayfarer."61 "What God has bestowed on His apostle and taken away from the people of the township belongs to God, to His apostle, and to kindred, and to orphans, and to the needy, and to the wayfarer, in order that it may not merely make a circuit between the wealthy among you."62 Consequently, in the assets of all individuals, there exists a share for the orphans: it may be under the name of zakah or not. A part of the revenues of the state is assigned to orphans as ordained by God. The Prophet (p) said, "I am the guardian of every Muslim. He who is deceased and leaves behind wealth, it belongs to his heirs; if he leaves debts or children in need of care, they belong to me and my duty."63 Therefore, if the well-being of orphans is guaranteed by the Muslim society, there is no room for fear that they may be neglected or lost if they are not wealthy.

Zakah is obligatory on the property of children and the insane. It is a right on those assets that is not waived by young age or insanity. It makes no difference whether those assets are in the form of livestock, agricultural produce, fruits, business assets, or money, except for liquid cash earmarked for future necessary expenditure, whereby it is not considered in excess of essential needs. The guardian of the child or the insane is required to pay zakah on their behalf. It is preferred, according to some Malikites, that a court order be sought so the guardian can protect himself against future claims based on Hanafite’s viewpoint.