Fiqh Al Zakah by Dr. Yusuf al Qardawi

Land is one of the greatest bounties of God. He subjects this earth to mankind and makes it cultivable, to produce plants and fruits. He created the laws of nature and made them benefit human beings in their living and subsistence. The importance of land as an origin of agricultural and other resources has always been recognized, to the extent that physiocrats in Western economics called for one single tax on land. God says "We indeed have placed you with authority on earth and provided you therein with means for the fulfillment of your lives: small are the thanks that ye give."1 Who created land and submitted it to our authority? Who made land arable or nonarable ? Who created the seeds that, put inside the soil, grow into bushes and trees? Who nourishes seeds and waters them from clouds or springs? Who makes plants breathe the carbon gas that human beings discharge, and discharge the oxygen that human beings need in a fantastic exchange of benefit? Who created the sun that provides plants and trees with light and heat indispensable for their growth? All these are only a few of the bounties God created for us human beings. Should we not be thankful?2 God says "See ye the seed that ye sow in the ground? Is it ye that cause it to grow or are we the cause ? Were it our will, we could crumble it to dry powder and ye would be left in wonderment, saying 'We are indeed left with debts, indeed are we shut out of the fruits of our labor'"3 "And the earth we have spread out, set thereon mountains firm and immovable, and produced therein all kinds of things in due balance. And we have provided therein means of subsistence for you and for those for whose subsistence ye are not responsible. And there is not a thing but its treasures are with us, but we only send down thereof in due and ascertainable measures. And We send the fecundating winds, then cause the rain to descend from the sky therewith providing you with water, though ye are not the guardian of its stores."4 Then let man look at his food. For that We pour forth water in abundance. And We split the earth in fragments. And produce therein corn. And grapes and nutritious plants. and olives and dates. And enclosed gardens dense with lofty trees.

And fruits and fodder. For use and convenience to you and your cattle."5 A sign for them is the earth that is dead, We do give it life and produce grain therefrom of which ye do eat. And we produce therein orchards with dates palms and vines and We cause springs to gush forth therein, that they may enjoy the fruits of this. It was not their hands that made this; will they not then give thanks."6

Indeed, all that the ground produces is but a part of the bounties of God. It is therefore natural that we are required to give thanks to God for these bounties that we use. The first expression of thankfulness is to give due zakah on it, showing gratitude to God and helping His needy servants. This zakah on grain, lands and fruits is known, in Shari'ah as "'ushr" (the 10%). Unlike other forms of zakah, zakah on agriculture does not require the passage of one full year. It is payable at the time of harvest because at the moment they are harvested, produce and crops represent the realized growth from land, and we have seen in chapter one of this part that growth is the reason for zakatability.

This chapter will have nine sections as follows:

Section 1: The obligation of zakah on agriculture.

Section 2: Products that are subject to zakah.

Section 3: nisab.

Section 4: Rates of zakah.

Section 5: Estimation of the harvest.

Section 6: Parts of the harvest that may not be counted for zakatability.

Section 7: Deduction of debt and expenditure.

Section 8: zakah on rented land.

Section 9: The combination of 'ushr and kharaj.

A. God says, "O ye who believe, give of the good things which ye have earned and of the fruits of the earth which We have produced for you, and do not even aim at getting anything which is bad in order that out of it ye may give away something, when ye yourselves would not receive it except with closed eyes."8 The obligation of zakah is inherent in this command to spend. Very often Qur'an uses the word "spending" for zakah. Al Jassas comments on this verse, "What is meant is zakah, especially since the following sentence forbids selecting bad goods as payment. Earlier and later generations agree that zakah is what is meant in this verse."9

B. God says, "It is He who produceth gardens, with trellises and without, and dates and tilth with produce of all kinds, and olives and pomegranates, similar (in kind) and different (in variety). Eat of their fruit in their season but render the dues that are proper on the day that the harvest is gathered."10

Many of the predecessors interpret "dues" in this verse to be due zakah. Al Tabari reports that Anas interprets this verse to mean the obligatory zakah. He also reports from Ibn 'Abbas, through several chains, "it is the one-tenth and the half-tenth dues." Another version from Ibn 'Abbas say, "Dues means the prescribed zakah on the day when the quantity of the harvest is measured and known." It is also reported that Jabir bin Zaid, al Hasan, Sa'id, Muhammad bin al Hanafiyah, Taus, Qatadah and al Dahhak interpret the verse as the obligatory zakah i.e. the one-tenth or half-tenth dues."11 Al Qurtubi says that Ibn Wahb and Ibn al Qasim report the same from Malik. It is also the opinion of some of the disciples of al Shafi'i,12 and of Abu Hanifah and his disciples as well.13

Others claim that this order came before the specific zakah was prescribed. It was substituted by it when the one-tenth and the half-tenth dues were prescribed. Al Tabari reports from Ibn 'Abbas and from Ibrahim al Nakha'i "surah six is Makkan, and the order was later substituted by the one-tenth and the half- tenth dues. There is also a narration from Muhammad bin al Hanafiyah to the same effect. Sa'id bin Jubair and al Hasan are also reported to share this view. Al Suddi says, "They were taught to give to whoever comes to them on the day of harvest, then zakah was ordained in substitution of that, and God prescribed on what comes forth from the earth dues of one-tenth and one half-tenth. "A similar report is also narrated from Atiyah al 'Awfi.14

Al Tabari, after giving all these reports, concludes that the verse was superceded later by zakah. He adds that zakah cannot be paid on the day of harvest because drying or cleaning the grain or fruit is necessary.15 This is surprising from al Tabari since he is usually very cautious about the superceding of one verse by another. Throughout his commentary he denies many claimed supercedings and annulments. As a matter of principle, annulment of one text by another can only be resorted to when there is complete contradiction between their rulings, to the extent that both texts cannot be worked out together. The relation between the verse "and give its dues on the day of harvest" and the correct hadith that imposes the one-tenth and the half-tenth dues is not that of total contradiction but rather the relation of the general to the specific.

It seems that the confusion is a matter of terminology, because the word 'annulment' in Arabic "naskh" is commonly used by predecessors, including many Companions, in a general meaning that covers not only strict elimination of the ruling of the text as defined by the scholars of jurisprudence, but also any restriction of a general text, limitation of an absolute, or details of global rule. In his al Muwafaqat, al Shatibi writes, "It seems that earlier scholars used the term "naskh" in more general meaning than the scholars of usul; limiting an absolute text, restricting a general text, providing details of a global one or removing some of the implications of an earlier text by a later one. All this used to be called annulment or naskh, since they all have some common element in their meaning."16 Ibn al Qayim adds, "Early scholars use the term 'annulment' sometimes in the meaning of eliminating the ruling completely, which is the only use of the term by later generations of scholars. But the former also used the same term to mean restricting or limiting a general or an absolute text."17

In commenting on the reports of substitution of the dues mentioned in the above verse by the later preseciption of zakah. Ibn Kathir says, "Calling this substitution an annulment is not granted, because we have something that was first made obligatory, then its details were provided, and the ratios and quantities were given later on. It is said these details were given in the second year of Hijrah."18

One can conclude that the "proper dues" in the verse are those whose details and descriptions were later given as one-tenth and half-tenth. As for the objection that the right due could not possibly be paid on the day of harvest because of the necessary operations of cleaning or drying, the reply is that the four kinds of produce mentioned in the verse- grain, dates, olives, and pomegranate - do not necessarily need drying and can be dispensed on the day of harvest. Additionally, a few scholars interpret the words "render the dues" as "be ready to pay it."19

A. Ibn 'Umar narrates that the Prophet (p) said, " On that which is watered by the sky or by springs, one-tenth is obligatory, and on that which is irrigated by carried water a half-tenth is obligatory."20

B. Jabir narrates from the Prophet (p), "One tenth is obligatory on that which is watered by rivers or clouds, and half-tenth is obligatory on that which is watered through means of transported water."21

C. There are also several saying that determine nisab of grains and fruits and sayings that about sending collectors for zakah on agriculture.

Muslims scholars have unanimously agreed on the obligation of the one-tenth or the half-tenth dues, although they may have differences about details.22

In this section I will review the different scholarly opinions and then conclude with a comparison and reflection to select the best among them.

'Abd Allah bin 'Umar and a few Followers consider zakah obligatory only on wheat, barley, date, and raisin . This is also reported from Musa bin Talhah, al Hasan, Ibn Sirin, al Hasan bin Salih, Ibn Abi Laila, Ibn al Mubarak, Abu 'Ubaid, and a report from Ahmad.23 Ibrahim adds a fifth item, corn.24 They provide the following documents in support of their view:

A. Ibn Majah and al Daraqutni report from Amr bin Shu'aib from his father from his grandfather that "The Messenger of God (p) only enacted zakah on wheat, barley, date, and raisin." Ibn Majah's version adds "corn."25

B. A report narrated by Abu Burdah from Abu Musa and Mu'adh that the Messenger (p) sent them to Yemen to teach people and ordered them not to take sadaqah except from these four foods - wheat, barley, date, and raisin.26

Moreover, there is no text or known ijma that imposes zakah on other than these four products. Other crops are not as common as these four and must not be considered similar to them.

Malik and al Shafi'i consider edibility and preservability as the necessary conditions for zakatability of agricultural products. Consequently, wheat, barley, corn, grain, and rice are all zakatable. By "edibility" they mean that the item should be a major foodstuff and not a secondary one, an item that people normally eat for subsistence.

Consequently, almond, walnut, and pistachio are not zakatable although they can be stored, while apples pomegranates, pears, peaches, and plums are also not zakatable because they cannot be dried and stored. Malikites differ on the zakatability of figs.

Malik himself is reported to have excluded figs, plums, pomegranates and all fruits from zakah,27 while some of his disciples consider figs zakatable because the two conditions of edibility and storability are fulfilled.28 Al Khurashi counts twenty zakatable food items which include garbanzo beans, lentil, wheat, barley, rice, dates, olives, raisin, sesame, and others.29

Al Qurtubi says that al Shafi'i believes in no obligatory zakah on fruits except dates and grapes, because the Prophet (p) took zakah on these two products, as primary preservable foods in Hijaz . On the other hand, walnuts and almonds are not zakatable although they are non-perishable, because they were not primary foodstuff in Hijaz, but were used only as fruits. Al Shafi'i continues, "olives are also not zakatable because they are associated with pomegranates in a verse, "and olive and pomegranate"30 and since the pomegranate is not zakatable, neither must the olive be." There is, however another report from al Shafi'i that olives are zakatable.31 Which is the opinion of Malik too.32 Al Qurtubi continues, "They both agree that pomegranates are not zakatable, while according to the verse quoted at the beginning of this chapter, pomegranates must be zakatable."33

Their argument is based on two points. The first is a saying narrated by Mu'adh which reads, "Cucumbers, watermelons, pomegranates, sugarcane , and vegetables are exempt : the Messenger of God (p) exempted them", reported by al Baihaqi in al Sunnan Al Kubra. He also reports a few other sayings and comments, "All these sayings are mursal but there are several narrations of them which must strengthen each other." This is further supported by statements of some Companions such as 'Ali, 'Umar, and 'A'ishah. And the second is that foodstuffs are highly useful, like livestock, so they must likewise be zakatable.34

Both of these two points do not stand up against the sweeping generalization of the text in Qur'an and Sunnah which indicate that the obligation of zakah is on all that comes from the earth or is watered by the sky.35

Ahmad is reported in al Mughni to have said that these three conditions must be met for zakatability, whether the crop is a food item or otherwise.36 Thus grain, cotton, sesame, some vegetables and many fruits are included. However, some fruits like apple, pear, peach, and apricot and some vegetables like cucumber, eggplant, and carrot are all not zakatable.

This view is based on the generality of the saying: "There is one tenth obligatory on that which is watered by the sky " and the Prophet's order to Mu'adh: "Take grain out of grain,"37 and the saying: "There is no zakah on grain or date that are less than five wasq"38 reported by Muslim and al Nasa'i. This last saying means that for zakatability the measurability is a required condition.39

According to Abu Hanifah anything that is planted and harvested with the intention of making a profit, is zakatable. Natural forests, bushes and plants that grow on their own are not zakatable except when the owners intend to use the land for lumber or fodder plantation. In this case those products become zakatable.40 Abu Hanifah does not consider any of the conditions of edibility, driability, non-perishability, or measurability.

Daud and his zahiri disciples go along with Abu Hanifah on this issue. This is also reported to be the view of 'Umar bin Abd al Aziz, Mujahid, Hammad and a report from al Nakha'i.41 Abu Yusuf and Muhammad do not agree with their teacher Abu Hanifah on the zakatability of vegetables.

According to Abu Hanifah and his two disciples, sugarcane, safran, cotton, and other fibers, all fruits, and spices are zakatable. So are vegetables, in his view only. Abu Hanifah uses the following in support of his opinion. Firstly, he says the general terms of the verse in surah al Baqara "and from what We have produced for you from the earth" make no exception of any agricultural products.42 Secondly, the verse "and render its right dues on the day of its harvest" comes after the mention of several kinds of trees and fruits.

If zakah should cover fruits it must also cover vegetables because the latter are easier to produce and to transfer to the poor and needy, even more so than grains.43 Thirdly, the saying "A due of one-tenth is obligatory on that which is watered by the sky and half-tenth is required on that which is watered by carried water" does not distinguish between edible or non-edible, perishable or non-perishable, measurable or non-measurable crops.

The view of Abu Hanifah seems to be the strongest. It suits the general objectives of zakah and the justice of its implementation as expressed in the texts of Qur'an and Sunnah. We must also remember that this is the opinion of several great scholars such as 'Umar bin Abd al Aziz, Mujahid, Hammad, Daud, and al Nakha'i.44 The few sayings that talk about four food items are either munqati' (interrupted) or weak.45 Even if one were to accept the sayings, the restriction to the four items can be interpreted as a mere reference to items present at the time of the Prophet.46 It is remarkable that none of the four schools of thoughts took such limitation for granted.

Amazingly enough, the late Rashid Rida supports this narrow view, after he adds corn to the four other crops, saying 'If anything must be added by analogy it is rice especially in areas where rice is the main subsistence'.47 This is amazing because Rida himself uses the argument of generality with respect to trade assets. The generality argument is in fact more applicable to the produce of earth that is referred to in the verses than to any thing else.

On the other hand, a Malikite like Ibn al 'Arabi supports the position of Abu Hanifah in his Ahkam al Qur'an.48 He also writes in the commentary on Al Tirmidhi, "The strongest view is that of Abu Hanifah, because it is more advantageous to the needy, most supported by the general terms of the texts and more appropriate as an expression of gratitude for Gods' grace."49

In his explanation of the verse "and give its right dues . . . ", Ibn al Arabi says " Abu Hanifah hits truth in obligating zakah on foodstuff and other crop, as implied by the general terms of the Prophet's saying, 'and one-tenth is obliged on what the sky waters'.

Ahmads' opinion depends on a weak argument in mistakenly interpreting the saying 'there is no zakah on what is less than five wasq' to mean there is a condition of measurability, instead of a minimum for zakatability that applies to all crops, measurable or not. The edibility condition of the shafi'ites is baseless. God reminds of His grace in providing food and fruits and obligates dues on both, in spite of differences in kinds of crops or in the way a given crop is used, such as using oil extracted from a crop for light to enjoy the grace of vision and the removal of darkness. How could anyone claim that zakah is not obligated on vegetables because they usually are distributed fresh and not dried knowing that fresh date and fresh grape are both zakatable without any need for drying. Fresh fruits are an essential part of the bounties God bestows on us. He even mentions them as some of the enjoyments offered in Heaven as in the verse 'in them will be fruits and dates and pomegranates,'50 and also the verse, 'for that We pour forth water in abundance, and we split the earth in fragments, and produce therein grain, and grapes and nutritious plants, and olives and dates, and enclose gardens dense with lofty trees, and fruits and fodder'.51 Ibn al Arabi continues, 'One may argue that we have no report that the Prophet (p) collected zakah from the vegetables in Madinah and Khaibar. My answer to this is that lack of evidence that he collected zakah is not evidence that zakah is not required, especially since we have sufficient proof in the Qur'an itself.' The saying that reads "No zakah is obligated on vegetables" has a weak chain and does not help as evidence.52 Al Tirmidhi indicates the chain of this saying is incorrect:

nothing authentic is reported from the Prophet (P) on this issue.53 Some Hanafi jurists tend to understand this saying as a reference to the perishability of vegetables and an advice to zakah collector not to collect vegetables because they cannot be preserved.54

Those jurists require that producers of vegetables distribute their zakah directly although some suggest that zakah be assessed and collected in value instead of in kind. It is reported by Yahya bin Adam from al Zuhri that "anything other than wheat, barley, date, grape and olive should be zakated in value ."55

'Ata says, "Vegetables, walnuts, almonds and fruits are not subject to the one-tenth due. But whatever is sold of them is subject to zakah if the value is two hundred dirhams or more."56 Similar opinion is reported from al Sha'bi.56 Abu 'Ubaid attributes similar views to Maimun bin Mahran, al Zuhri and perhaps al Awza'i.56 Al Zuhri and Maimun apply here the nisab and rate applicable to silver.56 Abu 'Ubaid further reports that Malik applies the same to fresh date, grape and olive. The latter adds, however, another condition, that the crop must be five wasq or more.57

The idea of calculating zakah of perishable vegetables and fruits on the basis of value is very practical but I tend to differ with the above scholars on the nisab and ratio, since changing the mode of payment from in kind to value does not necessitate a change in the rate and nisab of zakah. I believe that the rates and nisab of agriculture must still be applicable. We have on hand a report from Al Sha'bi that the value of grapes is zakated at the rate of one-tenth or one half-tenth.58 Ibn Abi Zaid in al Risalah mentions that "Olives are subject to zakah if the crop is five wasq or more, and zakah can be paid out of the olive oil or the proceeds of sale." And in his comments al Risalah, Ibn Naji adds "this is also reported from Malik. The generally accepted opinion in the Maliki school is that zakah on olive oil is paid in oil, while zakah on olives sold unsqueezed is paid in value."59

The majority of Muslim scholars since the eras of the Companions and Followers believe that crops must be at least five wasq to be zakatable,60 based on the Prophet's saying, "No sadaqah is obligatory on anything less than five wasq," a correct and agreed upon saying.61 Abu Hanifah says zakah is obligatory on agriculture regardless of the amount of crop, since the saying of the Prophet,''A one-tenth due is obligatory on that which the sky waters," is general. This is also correct and reported by al Bukhari and others.62 According to Abu Hanifah the condition of nisab is not applicable because the condition of the passage of one year is not required. Yahya bin Adam reports a similar opinion from Ibrahim al Nakha'i.63 'Ata is said to be of the same view.64 Abu Raja'al 'Utaridi says Ibn 'Abbas used to collect zakah in Basrah even from bunches of fresh onions.65 Furthermore, Ibn Hazm indicates that Mujahid, Hammad, 'Umar bin 'Abd al Aziz, and al Nakha'i all obligated zakah on all the land produce, whether big or small in quantity. Reports from the last three are extremely correct.66 Umar bin 'Abd al 'Aziz says that of each bunch of spinach and the like, one bunch must be paid as zakah.67 Daud al Zahiri holds that for items that are measurable, the condition of five wasq is necessary, while this condition does not apply to crops that are not measurable.68 This seems to be a reconciliation of the above two sayings.69 The author of al Bahr reports yet another opinion from al Baqir and al Nadir, that nisab is a necessary condition only on date, raisin, wheat, and barley, since these were the most common foodstuff at the time of the Prophet (p).70 Al Shawkani comments, "This looks like restricting a general text without any supportive evidence."71

Abu Hanifah's opinion in obligating zakah on any quantity, with no consideration of nisab, contradicts the correct saying mentioned at the beginning of this section. It also appears to be in direct conflict with the general principle that zakah is levied on the rich alone, and nisab is the criterion for richness. The seeming opposition of the two sayings is not an argument, because both of them can be interpreted in such a way that remove contradiction. According to Ibn al Qayyim, "the saying 'A one-tenth due is obligated on which the sky waters' is said in the context of distinguishing between cases that require a rate of one-tenth and cases where a rate of only a half-tenth is required. This saying does not touch the matter of nisab. On the other hand, the saying of the five wusq is a clear text on the issue of nisab. This cannot be challenged by the general text of the former saying."72

Ibn Qudamah says, "Since the saying 'There is no sadaqah obligatory on that which is less then five wasq is specific, it has priority in determining nisab. This is like the case of other zakatable items, such as camels and silver. In both cases there are general sayings whose purpose is to indicate the zakatability of the item, while there are texts whose purpose is to set nisab, like 'There is no sadaqah obligatory on that which is less than five camels.' and 'There is no sadaqah obligatory on that which is less than five uqiyyah." Ibn Qudamah goes on "The passage of a year is disregarded in agriculture because the time of harvesting represents the complete cycle of growth for the land. So there should be no association between nisab and the passage of a year. Finally, nisab is the determinant of richness in matters of zakah, and zakah is only obligated on the rich."73

Correct sayings determine nisab at five wasq. A wasq unanimously equals sixty sa'.

This is even mentioned in a saying, although it is a weak one.74 A nisab is thus three hundred sa'. Unanimity on this estimation is mentioned by Ibn al Mundhir.75

Sa' as in Lisan al 'Arab is a measure of volume or capacity used in Madinah. It equals four mudd. It is mentioned in several sayings with regard to the zakah of breaking the fast.76 It is said that Prophet (p) used one sa' (of water) for his washing (ghusl) and one mudd for his ablution (wudu')77, so the sa' of the Prophet is four mudd.

One mudd equal what fills the two hands put by each other with fingers stretched. The Prophet (p) standardized measures of capacity, stating, as narrated by Ibn 'Umar, "The (standard) measures are the measures of Madinah, and the (standard) weight are the weights of Makkah."78 People of Madinah were farmers and their measures of capacity are more widely known and more accurate, while people of Makkah were men of trade, and their weights were more common and more accurate.

Abu Hanifah and his disciples --- Iraqis -- estimate the weight of one sa' at eight Baghdadi ratl, while Malik , Shafi'i, Ahmad and others -- Hijaziz -- estimate it at five and one third ratl.

Iraqi jurists argue that the sa' at 'Umar's time weighted eight ratl.79 They also depend on the claim that the Prophet used eight ratl for his washing, two ratl for his ablution, or one sa' for his washing and one mudd for his ablution.80 They conclude that one sa' must equal eight ratl, while one mudd equals two ratl.

As for the Hijazis, their evidence is the predominant practice of the residents of Madinah generation after generation from the time of the Prophet. Ibn Hazm says "This is overwhelmingly known in Madinah, and it is obvious to everybody, young or old, righteous or wicked, knowledgeable or ignorant. Rejecting such a fact is like rejecting the fact that the Grand Mosque is in Makkah or rejecting the known site in Madinah of the dome over the Mosque of the Prophet--- it is absurdly unreasonable," He continues, "Even Abu Yusuf, upon visiting Madinah changed his view to that of Hijazi Jurists."81

He is referring to the story reported by al Baihaqi from al Husain bin al Walid, "We went to visit Abu Yusuf upon his return from pilgrimage. He told us, 'I want to inform you of a matter that worried me for some time until I went to Madinah. There, I asked about the sa' and they answered that the sa' they have today is the same sa' used by the Messenger of God (p). I asked if they could provide proof for this statement. They said they would bring me their proof tomorrow. The next day, about fifty elderly sons if Ansar and Muhajirin appeared before me, each of them carrying a measure of one sa'.

Each narrated from his father and his and ancestors that this was the measure used at the time of Prophet (p). I looked at these measures and found them all equal. I compared the weight of the sa's contents and found it is little less than five-and a-third ratl. To me, this was overwhelming evidence, and I changed my view from that of Abu Hanifah to that of the residents of Madinah."82 Al Husain continues, "I went for pilgrimage the next year and met Malik, and asked him about the sa'. He said that the sa' we have today is the same sa' of the time of the Prophet (p). I asked how much it weighed, and he answered, 'This is a measure of capacity. It cannot be converted into weight."83

In the third century of Hijrah, Ahmad said, "I weighed the contents of one sa' of wheat and found it five ratl and one-third." Hanbal quotes his father, Ahmad, "I took that sa' from Abu al Nadr, who told me he took it from Abu Dhu'aib, who told me this is the sa' that was known in Madinah at the time of the Prophet." Ahmad says, "I weighed the contents of a sa' full of lentil and found it equal to five and one-third ratl."84

Three propositions are suggested to reconcile the two views on the weight of the contents of the sa'.

A. Some Hanafites suggest that the ratl of Madinah is two thirds of the ratl of Baghdad. Ibn al Humam supports this proposition. It means that the sa' as a capacity measure is agreed upon, but the weight of the ratl is different between Baghdad and Hijaz.85

B. Ibn Taimiyah suggests that there used to be two measures of capacity; the Hijazi measure called sa' is used only for grain and foodstuff. A sa' of grain equals in wight five and one-third ratl. Another measure was used only for liquid, also called sa', and equaling eight ratl sin weight.86 According to this reconciliation, the ratl is the same in Iraq and Hijaz, while there are two different volume measures, depending on the material measured.

C. For our modern age, 'Ali Mubarak suggests a third way of reconciliation. He claims there is no real difference the volume of sa' in Iraq and Hijaz, nor is there a difference between their ratl as a measure of weight.87 If you weigh the one sa' full of grain, it is five and one-third ratl, and if you weigh one sa' full of water it is eight ratls.

It should be noted that the eight ratls is only an approximation, because the exact weight of the water is a little bit less than eight ratls. Thus, according to Mubarak, the Iraqis considered the weight of water, while the Hijaziz considered the weight of grain.88

With all this, it becomes apparent that the weight of one sa' of grain is five and onethird ratl. The late al Rayes says, "There should be absolutely no doubt about this. It is supported by the strong experience of the residents of Madinah. Malik himself studied the measure of sa' and the weight of one sa' full of grain in the presence of Harun al Rashid (an Abbasite Khalifah) and convinced Abu Yusuf of it." Al Rayes continues, "Who knows the traditions of Madinah better than Malik?! And whose testimony is more valuable than that of Abu Yusuf?! This determination of the weight of one sa' suits best the proportions of nisab on grain as compared with other nisabs. It is known that one sa' is four mudd and one mudd is the fill of the two hands together. Who can imagine that the fill of two hands of an average -size man can be more than one and one-third!"89

After we studied the determination of nisab as five wasq, each wasq being sixty sa', we can easily transfer these to contemporary capacity measures.90 In order to give the amount of nisab in weight we must remember the experiment of Ahmad. He weighed a sa' full or wheat; the weight was five and one-third ratl.91 It is known some agricultural crops are lighter than wheat, such as barley or corn. There is no disagreement among ahl al hadith that the weight of a sa' is five and one-third ratl of average wheat. We must not forget that the quantity of nisab is determined in capacity measures and not in weight. If the volume of nisab of another crop happens to weigh less than the same volume of wheat, that volume of the other grain is zakatable in spite of its lighter weight.91

'Ali Mubarak studied the Baghdadi ratl and concludes that one ratl equals four hundred and eight grams.92 He also estimates that one sa' of water is 2.75 liters.

Consequently, the weight of one sa' of grains is 2.176 kilograms, By simple arithmetic we find that one wasq is 130.56 kilogram of wheat, or 165 liters. This means that the nisab is 825 liters or 652.8 kilograms."93

A few crops cannot be measured by capacity measures because they are usually administered without being condensed or pressurized, such as safron and cotton. Abu Yusuf suggests that the value of such products should be the criteria in zakatability. He proposes to consider the value of a nisab of the cheapest grain, barley, for example, and apply that value on these crops.94

Muhammad suggests to use the largest unit used actually in trade, such as ton, for example, saying that the wasq was the highest unit of capacity measure at the time of the Prophet. Thus, for those new crops, we should take five of their highest units of measurement as a nisab.94 This definitely means nisab will differ from one country to another. Some countries will use the metric ton, others the English ton, and yet others may use a different unit.

Some jurists suggest that in all crops which are not measured by capacity, nisab must be determined as the quantity whose value is two hundred dirhams, applying the nisab of money the same way it is applied on trade assets.95 Lastly, Ahmad suggests we use the weight equivalent of the nisab of grain.96 This means that for crops that are not usually measured by capacity measures, the weight of 653 kilograms must be applied in our times, Ibn Qudamah accuses all these views of being void of any support from a text, a valid analogy, or a sound rationale. He argues that zakah cannot be due on all assets regardless of any minimum, nor can the estimation of nisab on certain crops be done on the basis or another crop, nor can the value be considered, because in agriculture it is essential that zakah be paid in kind.97

In my opinion, other crops that are not measurable by capacity must have a nisab.

Their nisab should be estimated on the basis of the value as Abu Yusuf says, but I think the estimation at the cheapest measurable crop is unfair from the point of view of zakah payers, although it benefits the poor. An estimation of nisab must be fair with both parties, so I suggest averaging the value of nisab of different crops. Since this may differ from time to time and place to place, I suggest to determine nisab in each case according to the socio-economic variables on the basis of the average value of five wasq of different measurable crops. Such an estimation must be done by people of knowledge whenever necessary.

The estimation of nisab should be done on the dry product after it takes its final form for sale (after cleaning, filtering, skinning, etc.). Al Ghazali in his al Wajiz writes that the five wasq must be considered in the dried form of raisin, and in grain after cleaning and removal of its bran, except for crops that are sold fresh or with their bran. In this case nisab is estimated on them as they are.98

Al Bukhari reports from Ibn 'Umar that the Prophet (p) said, "A one-tenth due is obligatory on that which is watered by the sky or springs or that which is not watered at all, and a half-tenth is obligatory on that which is watered by carried water."99 Muslim reports from Jabir that the Prophet (p) said, "On that which rivers or clouds water, there is one-tenth due, and in that which is watered by water carried by camels, there is one half-tenth."100 Yahya bin Adam reports from Anas, "The Messenger of God imposed a one-tenth due on that which the sky waters, and a half-tenth due on that which is watered by animals or men carrying water in containers."101 Ibn Majah reports from Mu'adh, "The Messenger of God (p) sent me to Yemen and commanded me to collect one-tenth from that which the sky waters, or draws (underground) water through its roots, and half a tenth from that which is watered by pails."102 Consequently, Abu 'Ubaid concludes that anything irrigated without the use of machine and the payment of labor, whether by rain from the sky or by rivers or springs or what sucks in (underground) water through its roots, the charge on it is one-tenth.103 The author of al Mughni writes, "In all, whenever cost and effort from people or their animals or machines are involved, the ratio is half a tenth. On the other hand, things watered without such cost and effort are charged one-tenth. This is so because cost affects growth and must affect the amount paid as zakah, so the rate is reduced."104 When water is purchased and paid for, the rate is also reduced, according to al Nawawi and others.105

A. If plants are watered by carried water half of the year and the other half are left to rain, the percentage of zakah becomes seven and a half percent. Ibn Qudamah says "This is not disputed, to my knowledge, since if watering takes place for the whole year the ratio is five percent, so the ratio is proportional to watering."106

B. If plants are watered most of the year, the ratio becomes five percent and the small portion of total season is disregarded. By the same token, the ratio must be ten percent if they are not watered most of the season. This is according to 'Ata, al Thawri, Abu Hanifah, one of two reports from al Shafi'i, and the official position of the Hanbalites.107

C. If the ratio of watering to the total season is not known the percentage applicable must be one-tenth, to be on the safe side.108

The question arises of whether costs spent on other than watering is considered in the reduction of the zakah percentage. This might include digging trenches and canals for irrigation, establishing a sprinkling system, and the like. Ibn Qudamah suggests that the cost of canals and trenches be of no effect on zakah because such cost is implied in the reclamation of land and its preparation for agricultural use.109 Al Rafi'i expresses a similar view,110 while al Khattabi distinguishes between the initial cost of irrigation canals and the cost of maintaining them, and concludes that if a substantial amount is assumed yearly for the operation and maintenance of such canals and wells, the rate must be reduced to five percent.111 Al Rafi'i reports that some Shafi'ites share the same view with al Khattabi.112

The Messenger (p) started a tradition of estimating the amount of dates and grapes before the harvest, while the fruits are still on the trees, with no need of actual measuring or weighing. The purpose of this pre-harvest estimation, made by experts, is to determine the amount of due zakah and to leave the farmer the freedom of disposing of the crop any time, without having to wait for the zakah collector.113 Al Khattabi says "this pre-harvest estimation allows farmers to take the best opportunities for collecting their fruits and selling them without having to wait for the zakah officers on the day of harvest, provided that when pre-estimation is done and the due amount of zakah is determined the farmer guarantees the delivery of zakah due to its collector.114 'Umar bin al Khattab and Sahl bin Abi Hathamah, Marwan, al Qasim bin Muhammad, al Hasan, 'Ata, al Zuhri, 'Amr bin Dinar, Malik, al Shafi'i, Ahmad, Abu 'Ubaid, Abu Thawr, and the majority of scholars approve of the pre-harvest estimation. On the other hand, Abu Hanifah does not accept it on the grounds that it is mere speculation.115

The majority provides the following supporting evidence:

1. Sa'id bin al Musayid reports from 'Attab bin Usaid "The Prophet (p) used to send officers to estimate--before the harvest--grapes and fruits."116

2. From Sa'id bin al Musayib, "The Messenger of God (p) commanded that grapes be estimated before the harvest the way dates are estimated, and their due zakah be collected in the form of raisins, the same way due zakah on dates is collected (after drying)."117

3. The Prophet (p) practiced pre-harvest estimation. He estimated the crop of an orchard that belonged to a woman in Wadi al Qura at ten wasq, and told the woman to measure the actual crop. She did, and it came to exactly what the Prophet (p)

estimated.118

4. Abu Daud reports from 'A'ishah about Khaibar, "The Prophet (p) used to send "Abd Allah bin Rawahah to the Jews to estimate the date crop before it was ripe and edible."119

5. From Sahl bin Abi Hathamah, "The Messenger of God (p) said, "When you estimate before the harvest, do not count one-third of the fruits, or at least one-fourth (to be more fair in estimation)."120

In Ma'alim al Sunan, al Khattabi says, "This saying confirms the practice of preharvest estimation which is the view of the majority, except for a report from al Sha'bi that estimation is a fabrication. Scholars of the school of opinion deny estimation, claiming that estimation was used only to put pressure on farmers not to cheat rather than to determine the due amount of zakah, and such estimation is only speculation, i.e.

a sort of gambling that may have been permissible only before gambling was prohibited." Al Khattabi continues, "but pre-harvest estimation was practiced a long time after the prohibition of gambling during the era of the Messenger, Abu Bakr, and 'Umar. The masses of Companions permitted it, since none of them is reported to have opposed such a practice. Moreover, claiming that estimation is merely speculative is not valid, because estimation is the result of the exertion of best efforts by experienced experts. It is therefore like ijtihad, and ijtihad is always practiced when a fixed rule is not available. It is similar to estimation of the value of destroyed property in order to impose the compensation on the person who destroyed it."121

Pre-harvest estimation must be done when fruits start to ripen and before the time of harvest, because the need for this estimation becomes important at that time. This is in accordance with the saying from 'A'ishah mentioned above.122 If estimation is found to be far from actual reality, the due amount of zakah remains as estimated and need not be adjusted. Al Qasim bin Muhammad answered such a question with "You must pay according to the estimation. It is the error of the person who made it."123 This is also the opinion of Malik, provided that the estimator is honest and experience, because according to him the estimation is final as far as the due amount of zakah is concerned.

Abu 'Ubaid comments, "This is agreeable if the variance is withing reasonable limits which are usually forgiven in normal transactions, but if the difference is big, a correction becomes due like in other transactions."123

Ibn Hazm argues that the mistake of the estimator or his dishonesty must be corrected because God says "Be establishers of justice and balance." Whether the estimation is more or less than actuality, it is unjust to either the payer or the recipient of zakah. A claim that the estimator made an error or was dishonest must be proven by factual evidence.124 However, I believe that the opinion of Abu 'Ubaid is more reasonable and practical.

The majority of scholars believes that only dates and grapes can be estimated before the harvest, and this estimation must not be applied to other fruits. This is also the view of Malik and Ahmad.125 Al Zuhri, al Awza'i, and al Laith extend pre-harvest estimation to other fruits such as olives, because the need for such an estimation exists with respect to other fruits the same way it exists for dates and grapes.126

I conclude that pre-harvest estimation must be practiced only according to need, whatever the fruit. This is a matter that depends on the practical experience of people and the opinions of experts as well as on the technology of the times. If pre-harvest estimation is needed for any fruit for the benefit of zakah administrators or farmers, it can be applied in analogy to estimation of dates and grapes.

There are several indications that the estimation of the amount of zakatable crops should be easy on the payer. These include the following:

1. Sahl bin Abi Hathamah narrates from the Prophet (p) "When you estimate, leave one-third, and if not leave one-fourth (uncounted)".

2. Ibn 'Abd al Barr reports from Jabir from the Prophet (p) take it easy in estimation . . ."127

3. Abu 'Ubaid reports from Makhul "When the Messenger of God (p) sends estimators he tells them, "Make it easy, because orchards usually include trees left for charity and trees left for passers-by to eat from."128

4. Al Awza'i is reported to have said, "It reached us that 'Umar bin al Khataab said to make it easy for people when you estimate, since trees usually include those designated for charity, passers-by, and family to eat from."129

5. From Bashir bin Yasar, "'Umar bin al Khattbb sent Abu Hathamah from al Ansar to make the estimation of fruits of Muslim, and told him, 'If you find them among their trees eating, don't count the trees they are eating from.'"130

6. Sahl bin Abi Hathamah reports that Marwan appointed him an estimator of dates.

He estimated the orchard of Sa'd bin Abi Sa'd seven hundred wasq and said, "If it were not for the forty cabins and booths in which people live I found in it, I would have estimated it at nine hundred wasq, but I left for them what they were eating."131

The first of these sayings is graded correct by a group of leading scholars, and is supported by the saying from Jabir and that of Makhul as well as by the practices of the Companions. Ibn Hazm says, "Here we have the practice of the Companions 'Umar and Abu Hathamah and Sahl, in the presence of all other Companions, without any report to the contrary from any one of them."131 Several sayings and stories from the Companions imply the urging of easiness and kindness in estimation.

Ibn Qudamah says that "the estimator must not count one-third or one-fourth of the total fruits as a gesture of kindness to the payer, because they usually need that much for their own food, for charity, passers-by, and guests. If one counts everything it becomes harsh on them. Ishaq, al Laith, and Abu 'Ubaid are reported to be of the same view. How much is left is a matter that is decided by the estimator on the basis of his observation and the location of the orchard. But if the estimator does not leave anything uncounted, the owner may eat as much as one-fourth and deduct that from the zakatable estimated total. If the government does not send an estimator, the owner may get a non-partisan estimator and may deduct between one-third and one-fourth for the above-mentioned purpose."132

If the fruits or crop are not estimated prior to the harvest day, owners may still eat, or give gifts up to a reasonable amount without being charged zakah on it. Ahmad was asked about wheat eaten before being dried and answered, "It is all right, because it is customary for growers to eat from this crop, in similarity to fruit growers."132 Abu Yusuf and Muhammad say that what is eaten by growers, their guests, and families, is always deductible, even if it equals all the crop.

On the other hand, Malik and Abu Hanifah believe that nothing should be left uncounted. Even fruits eaten by growers must be estimated and included in the total count of zakatable crops.133 Ibn al 'Arabi says al Thawri also shares this view.134 Ibn Hazm claims it is not permissible to charge zakah on what is eaten by growers and their families or given for charity, on the grounds that zakah is due after the harvest, so things eaten or given away before the harvest are not included in principle. He adds that otherwise we would be imposing hardship on the payers, because what is eaten in that period is difficult to estimate, and God says "On no soul does God place a burden greater than it can bear."135 Ibn Hazm depends on the saying from Sahl and similar stories in his presentation.136

Those who disagree on leaving anything uncounted have their own answer to the saying from Sahl. Some of them claim it was only meant for a specific case, that of Khaibar. Some others say the meaning of "leaving some to them" is not to collect all the due zakah from them, although they are charged the whole due amount according to accurate and comprehensive estimation, but to leave one-third or one-fourth of the zakah due for growers to distribute privately to their poor neighbors or kin.137 Others provide yet a different explanation, saying that what is left uncounted is merely for the expense of the growers in cultivating and planting the land.

In my opinion, the saying from Sahl must be applied, especially since it is supported by the practice of 'Umar and Ahmad, Ishaq, al Laith, al Shafi'i--his former view--and Ibn Hazm. This saying, in fact, provides us with an important rule, the consideration of reasonable conveniences of the zakah payer and family and of circumstances surrounding the case that might require certain reduction in the estimation of required dues. This complies with the general condition in zakatable assets, which is that they must be in excess of essential needs of the owner. This approach of considering special circumstances has only recently been discovered by man-made taxation systems.

Two kinds of debts may be owed by owners of crops, namely debts accrued for payment of farming expenses for the crops themselves, and debts for personal and other purposes. Abu 'Ubaid reports from Jabir bin Zaid about debts for farming and debts for family use that Ibn 'Abbas said "Debts spent on the land must be paid back first," and Ibn 'Umar said, "Both debts on farming and family must be deducted."138 Yahya bin Adam quotes Ibn 'Umar, "The farmer should start paying back his debts, then must pay zakah on the residual," while Ibn 'Abbas says that "debts spent on farming must be paid back and the residual is zakatable."139 Obviously, Ibn 'Abbas and Ibn 'Umar agree that debts on farming are deductible, but they do not agree on deducting debts for family and personal use.

Abu 'Ubaid reports from Makhul, "zakah is only due on the residual after debts are deducted, if it satisfies zakatability conditions."140 Similar views are reported from 'Ata and Taus,140 as well as a group of Iraqi jurists, including Sufyan al Thawri.141

There are two reports from Ahmad, one is agreement with the view of Ibn 'Abbas and the other in agreement with the view of Ibn 'Umar. Ibn Qudamah comments, according to one report, "All debts are deductible; one-tenth is obligated on the residual if it is nisab or more, because we are dealing with zakah, and the principle is that debts are deductible."142 Abu 'Ubaid supports the view of Ibn 'Umar, and adds the condition that debts must be valid. "Valid debts that are due on the farmer are deductible from zakatable crops, as stated by Ibn 'Umar, 'Ata, and Makhul. It is in accordance with Sunnah, since the Prophet (p) made zakah on the rich to be rendered to the poor. Those who are under debt are not rich; they may even deserve zakah as recipients," Abu 'Ubaid remarks.

Concerning the deductibility of kharaj, a real estate tax on land, Yahya bin Adam reports from Sufyan al Thawri that debts and kharaj are deductible, and if the residual reaches five wasq, it is zakatable.144 Abu 'Ubaid reports from Ibrahim bin Abi 'Ablah, that 'Umar bin Abd al Aziz wrote to his officer in Palestine, 'Abd Allah bin 'Awf, that kharaj should first be collected from kharajable land in the hands of Muslims, then zakah should be levied on the residual.145 This is also the view of Ahmad, on the basis that kharaj is a cost of the land, which is deductible from zakatability, as in al Mughni.146 This is consistent with Ibn 'Abbas and Ibn 'Umar's view that costs of farming are deductible.

The rent of land rented for farming must be treated like kharaj, by analogy, since the majority of jurists consider kharaj a form of land rent. Yahya bin Adam asked Shuraik about a person who rents a plot to farm for a given amount of grain. We was answered, "He should deduct the amount of rent from its output and pay zakah (ten or five percent)

on the residual, the same way debts are deductible."147

Now we come to considering expenditures spent on farming even when they do not take the form of debts. These may include the cost of seed, fertilizer, pesticide, labor involved in cultivating, irrigation, harvesting, weeding, drying, etc. Are these costs deductible like kharaj, debts, and rent? Ibn Hazm argues that these expenses are not deductible, whether their total is high or low. He reports from Jabir bin Zaid that Ibn 'Abbas and Ibn 'Umar disagree on this issue. The first says expenses are deductible, while the other says they are not. 'Ata is reported to reduce the amount of the crops by the amount of expenses. Ibn Hazm continues, "it is not permissible to make any reduction of a due imposed by God without valid textual support from Qur'an or Sunnah". He further states that "Malik, al Shafi'i, Abu Hanifah and the Zahiris are of the same view."148

It should be noted that the report he cites about Ibn 'Abbas and Ibn 'Umar agreeing on deducting expenses was mentioned earlier in this section, where the word used was debt caused by farming expenses. We learned there that both Ibn 'Abbas and Ibn 'Umar agree on deducting the amount of a debt that was used toward farming expenses, although Ibn 'Umar allows deducting other debts too. But Ibn Hazm attributes to them approval of the deduction of expenses in the case where there is no borrowing.

The most remarkable and direct statement about expenses comes from 'Ata' and is refered to by Ibn Hazm. Yahya bin Adam reports from Isma'il bin 'Abd al Malik that he asked 'Ata about farming a lot of land, and 'Ata answer, "Deduct your expenditure and pay zakah on what is left."149 "There seems to be no agreement among scholars on deducting the costs of farming," Ibn al 'Arabi says, "and my opinion is that costs of farming must be deducted and zakah charged on the residual only. The statement in the saying 'Leave aside one-third or one-fourth' is a reference to the cost of farming." He continues, "I even ran a few experiments and found the cost is about that much."150 This view of Ibn al 'Arabi implies that the deduction of cost and expenses and the exclusion of one-third or one-fourth in the estimation must not be implemented together, though the deduction of expenditure seems to be accepted by Ibn al 'Arabi even if it were more than one-third, and on all kinds of agricultural output whether estimated before the harvest or not. Ibn al Humam rejected this opinion, saying that the differences in the applicable percentage of zakah (i.e. five or ten percent) is meant as a compensation for costs involved. If expenditure is to be deducted, then ten percent must always be applied, but if the ratio is already reduced to five percent, costs must not be deducted.151

It seems likely that at the time of the Prophet (p) the major and most visible factor of cost was that of water that had to be carried to the land. Consequently, the rate was reduced in compensation for that cost. Other costs are not mentioned by any text, but it seems that the spirit of Shari'ah must accept the deduction of expenditure from zakatable crops on the following two grounds:

Firstly, cost and expenditure are usually considered in Shari'ah. The obvious example is the reduction of rate from ten to five percent because of the cost of irrigation.

Sometimes the cost may be high enough to remove the zakatability of the asset, as in the case of livestock fed by purchased fodder most of the year.

Secondly, growth in fact is the surplus and surplus can only exist after considering the cost involved. This is perhaps why some scholars say production expenditure is like cost price for the output. We must remember that if cost is to be deducted, the expenses of irrigation must not be include, because such expenses are taken care of in the reduction of the ratio of zakah to five percent. As an example, if the product is ten tons of cotton and the cost, including real estate tax and not including irrigation is the value of three tons, only seven tons are zakatable. The rate depends on whether the land was watered by rivers or rain (ten percent) or by direct carrying of water (five percent).

When agricultural land is farmed by the owner, its zakah is due from the owner himself, but when the owner lends his land, free of charge, for someone else to farm, zakah is then due on the farmer.153

When farming is done in certain forms of partnership, such as sharecropping , within the conditions required in Shari'ah, each partner becomes responsible for zakah on his or her own share, if the partner's share reaches nisab, either alone or when combined with output accruing to the partner from other sources. If the share of a partner does not fulfill the condition of nisab, he is not zakatable, although the other partner or partners may be zakated. Al Shafi'i differes on this issue, suggesting that if the total output of the partnership reaches nisab, it becomes zakatable and the partners are obliged to pay zakah, each in proportion to his or her share in the output.154

When land is rented to the farmer for a given amount of money or any commodity, zakah (the ten or five percent) becomes due on the owner, according to Abu Hanifah. He argues that zakah, though usually collected from the output, is in fact a levy on the land.

In renting, the land remains owned by the owner and not by the user, and since zakah is a charge on the land, similar to kharaj, it is his responsibility to pay it.155 Renting is like farming, a sort of growth of the land, and out of this increase zakah is paid.156 A similar view is reported by al Nakha'i.157

On the other hand, the majority is of the opinion that zakah is charged to the renter, on the grounds that zakah is a levy on the output and not on the land. Consequently, the owner of the output is responsible for zakah. It becomes obvious to us, along with Ibn Rushd, that there is a difference in the philosophy of zakah. Is it on the land or on the output, or maybe on both together? There seems to be no one who mentions that zakah could be on both land and output together, although this looks to be the truth of the matter. When the owner is the same as the farmer, the problem does not exist, but when the owner and the farmer are different persons, the majority argues that since zakah is paid out of the output it is responsibility of the person who owns the output, while Abu Hanifah refers to the basis of zakah, which is the growth of the land itself.158

Ibn Qudamah prefers the majority's view. He challenges the position of Abu Hanifah, saying that if zakah is a charge on the land, it must be levied even when the land is not farmed, especially since kharaj, considered by Abu Hanifah similar to zakah, is imposed regardless of farming and output. Furthermore, if zakah is on the land, it must be determined according to the amount of land and not the amount of output. As for its dispersement, it must be similar to those of fai'.159 Everybody knows zakah is a percentage of the output and must be dispersed like other forms of zakah and not like fai'.

Al Rafi'i says the renter is required to pay zakah regardless of the rent, like a businessman who is required to pay zakah in addition to the rent he might be paying for his store.160 But one may differ with al Rafi'i on this analogy, because the merchant pays zakah at the end of the year after deduction of rent and other costs. zakah on agriculture has no yearly condition. It is due on the harvest, and if rent is not deducted from the harvest where would it be deducted from otherwise? It seems unfair that the renter be asked to pay both zakah and rent while the owner is charged nothing, Justice requires that both parties share in the payment of zakah. Neither should be allowed to escape it while the whole burden is unjustly thrown on the other. Ibn Rushd is intelligent enough to realize that zakah is in fact on the land and its output together.

In my opinion, the farmer who pays rent should be allowed to deduct the rent along with other expenses and debt from the output and pay zakah on the residual, if it reaches nisab, while the owner must be required to pay zakah on his share of the growth of the land, which in this case is the total rent he or she receives, if it reaches nisab. Payment is calculated according to the rate that applies on the output itself, i.e. ten percent or five percent. The owner is certainly allowed to deduct from the rent costs that might be involved, such as real estate taxes, along with expenditures and debts.

This approach of sharing in the payment of zakah prevents duplication in zakatability, because the rent that is deducted from zakatable output, as far as the farmer is concerned, is included in the zakatable output of the land owner. Each is charged with what belongs to him or her from the profit on the land, and on the basis of the income that accrues to him or her from it. I suggested this reconciliation in 1963, and it was rejected then by many of the scholars of al Azhar, but recently I read in The Way Islam Organizes Society, by the late Shaikh Abu Zahrah, p. 159, his statement, "Some contemporary scholars suggest in a proposal for a zakah act that zakah be shared by the owner and renter, where each of them is charged according to the profit he or she gets after payment of taxes, as far as the farmer is concerned." This is, praise be to God, the opinion I feel most comfortable with and I share and support.

Hanafites have a condition for zakatability, which is that land must not be kharaji land. If the owner pays kharaj for his land, zakah must be waived. On the other hand, the majority of scholars believe that Muslims must pay zakah on their agriculture, regardless of whether kharaj is obligated on the land or not.

Lands may be classified as either 'ushri, i.e. lands on whose output 'ushr (the zakah of ten or five percent) is due, or kharaji, on which kharaj is due.

Abu 'Ubaid lists the following as 'ushri lands:

First, all lands whose owners accepted Islam, as in Madinah, Yemen, and Bahrain.

To this Makkah is added, because although there was brief fighting, the Prophet (p)

protected the persons and properties of the Makkans. Second, lands acquired by fighting and distributed among the Muslim conquerors, after one-fifth had been set aside as prescribed by the Qur'an. The distributed four-fifths is considered 'ushri because ownership has been transferred to Muslims. Third, land not owned by anyone and given by the state to individuals to farm, and fourth, land not in use that is reclaimed by Muslims. These sorts of lands are all mentioned in sayings, and are all zakatable, according to the tenets of zakah in Qur'an and Sunnah.161

Abu 'Ubaid defines kharaji lands as "lands that are either conquered in war, but left in the hands of local farmers instead of being confiscated and distributed among the Muslim conquerors, (like the lands of Iraq, Persia, Syria, Egypt, and North Africa) or land whose owners entered under the authority of the Islamic state as a result of treaties that included a clause to this effect (such as some areas in the southern tip of the Arabian Peninsula, some areas in Persia, and certain Armenian areas). Whatever taxes are imposed on these lands is called kharaj and goes to the state budget, to be spent for the general interest of Muslims.162

Abu 'Ubaid means by conquered lands, those lends whose people were defeated in war with Muslims. Such lands are treated in accordance with the Qur'an163 and Sunnah,164 which require that ownership be transferred to the whole Muslim society, present and future generations, as represented by the Islamic state. This policy was applied en masse at the time of 'Umar, making his era rich in the minute details that arise in application. Jurists use the term "waqf for all Muslims" to express the principle that the land becomes a trust for the benefit of all Muslim generations, whereby a tax is levied on it on yearly basis. This tax, called kharaj, is like rent of the land paid to the treasury of the state, and is not waived even if ownership of the land is transferred to Muslims or if the users themselves convert to Islam, because of its nature as rent payment.165

This policy was applied by 'Umar on the conquered lands in Iraq and Syria, instead of dividing these lands and distributing them among the soldiers as asked by Bilal and a few other Companions. 'Umar provided verses from surah al Hashr to support his position: "What God has bestowed on His Apostle (and taken away) from the people of the townships belongs to God, to His Apostle, and to kindred and orphans, the needy and the wayfarer; in order that it may not (merely) make a circuit between the wealthy among you. So take what the Apostle assigns to you, and deny yourselves that which he withholds from you. And fear God, for God is strict in punishment. (Some part is due) to the indigent Muhajirs, those who were expelled from their homes and their property while seeking grace from God and (His) good pleasure, and aiding God and His Apostle. Such are indeed the sincere ones."166 'Umar argued that according to these verses, God includes all future generations of Muslims in land distribution, and if land is distributed to the present soldiers, nothing will be left for future generations, while if it is kept in trust with the state and a charge imposed on it to benefit the treasury, then even a shepherd in Yemen would receive his share from the state treasury without being undignified.167 The purpose of this policy is so that wealth "may not merely make a circuit between the wealthy among you." The distribution of the return, called fai' according to these verses, includes the present generation of soldiers, i.e. the migrants and the supporters, as well as all future generations. By this form of distribution, Islam avoids the common capitalist mistake of prefering the interests of the present generation over those of future generations, as well as the mistake of communism of imposing heavy sacrifices on the on present generation for the benefit of development.

It is perhaps for that reason Mu'adh, the great Companion scholars, told 'Umar, "If you distribute the land now, something very undesirable might happen. You will create a class of very rich individuals whose wealth will be inherited by their sons and daughters, and nothing will be left for the future generations who will carry out the responsibility of defending Islam and its society. Please do something that helps present as well as future needs."168 'Umar's basic argument, derived from these verses, was that "he must not leave future generations with nothing."169 Ibn Qudamah says "Khaibar is, to the best of my knowledge, the only conquered land which was distributed among Muslims soldiers. The Messenger of God (p) divided half of its land among Muslims.

All that was conquered during the time of 'Umar and his successors, including Syria, Iraq, and Egypt, was not distributed."170

The majority of scholars, including Malik, al Shafi'i and Ahmad, believe kharaji lands cannot be sold because they are waqf (trust). 'Umar questioned 'Utbah bin Farqad because he bought a lot of kharaji land, "From whom did you buy it?" "From its owners," 'Utbah answered. When the people in Madinah gathered, including migrants and supporters, 'Umar told 'Utbah, "These are the owners. Did you buy It from them?'' He said "No" Then 'Umar replied, "Return it to whomever you bought it from and take back your money."171

Some scholars approve of the inheritance and sale of kharaji land, provided that the buyers continue paying its kharaj. Some others allow purchasing this kind of land only from the original non-Muslim holders. It is reported that Ibn Mas'ud bought a piece of land from a Persian and pledged to pay its kharaj.172

Ibn Qudamah points out, "Even if purchasing this kind of land is permitted, buyers have to continue the payment of kharaj that was imposed on the sellers. This purchase then is actually a transfer of holding the land, without a real transfer of ownership.

When Ibn Mas'ud set the condition that the buyer continue paying kharaj, he made this contract a form of rent and not a sale."173

It is obvious that kharaj lands belong to the whole Muslim nation. A transfer of holding of the land from one person to another cannot be considered a transfer of ownership. Kharaj imposed on the land is like a rent paid to the owner, as represented by the Islamic state, which uses this rent to serve public interests, including improving the productivity of kharaji lands. If the holders of kharaji land became Muslim, or if the holdings transfer to Muslims, kharaj remains undisturbed. On this Muslim jurists have no differences, because no one has the authority to waive such a rent that belongs to all Muslim generations.

A question arises about kharaji lands which--for any reason--are held by Muslims who are subject to zakah. Are these Muslims required to pay kharaj and zakah simultaneously, or must one of them be waived in order to avoid paying two taxes on the same land? Abu Hanifah and his disciples decide that the output of kharaji land is exempt from zakah. They set for the zakatability of agriculture the condition that the land must not be kharaji. Abu 'Ubaid reports from al Laith and Ibn Abi Shaibah from al Shabi and 'Ikrimah that kharaj and 'ushr must not be combined on the same land.174

Firstly, Ibn Mas'ud reports from the Prophet (p) " 'Ushr and kharaj must not be due together on a Muslim's land."175

Secondly, Abu Hurairah narrates from the Messenger of God, "Iraq will prevent (the payment of dues on) its dirhams and measured food, Syria will prevent (the payment of dues on) its measured food and dinars, Egypt will prevent (the payment of dues on) its measured food and dinars. And you will return to where you started." Abu Hurairah adds, "The Prophet said that three times: my flesh and blood give witness." Reported by Muslim and Abu Daud.176 This saying, in which the Prophet (p) predicts that in later days people will not pay their dues, indicates that these dues refer to kharaj and not 'ushr, because 'ushr is only on the output, while kharaj can be either money or a given amount of measured food.

Thirdly, Abu 'Ubaid reports from Tariq bin Shihab that 'Umar bin al Khattab wrote regarding a woman who became Muslim in the area of Nahr al Malik,177 "Give her her land, and she should continue the payment of kharaj on it,"178 indicating that Umar ordered the collection of kharaj and not 'ushr from her.

Fourthly, no political ruler, oppressive or just, is reported to have collected 'ushr from kharaji lands that are in the hands of Muslims, since 'Umar imposed kharaj. This position may be interpreted as a practical ijma'.

Fifthly, kharaj is imposed on the same principle as 'ushr, i.e. on arable growing land.

If the land is not arable, no kharaj or 'ushr is imposed. Consequently, they may not be imposed concurrently on the some land. This is like owning cattle for the purpose of trading. Even after the passage of a year , zakah on livestock and zakah on trade assets are not both imposed. This is a unanimous position of Muslims, taken in order to avoid duplication, which is forbidden by the saying, "No duplication in zakah." Sixthly, kharaj was originally imposed on conquered land that is left in the hands or pre-Islamic owners, as a form of penalty to the conquered, while 'ushr is imposed on Muslims as a form of worship and an expression of gratitude to who purifies the person and the property. The two dues are obligated for different reasons and therefore must not be combined.179

However, the majority of scholars believe that 'ushr as a required obligation must not be waived on kharaji lands. This opinion is founded on the following evidence:

Firstly, the texts that make zakah obligatory on agriculture are general, clear cut, and lack any distinction between the two kinds of land. Examples are the verses, "O ye who believe, spend from the good things ye have acquired and from that which We have produced for you from the earth," and "And give its proper due on the day of its harvest," and the saying (which is agreed upon) "And there is one-tenth obligated on that which the sky waters." Kharaj is imposed on the land itself, whether cultivated or not, whether it happens to be in the hands of a Muslim or an unbeliever, while 'ushr is imposed on the output if it belongs to Muslims.

Secondly, 'ushr and kharaj are two separate dues imposed for different reasons.

Nothing precludes their coexistence. The reason for kharaj is controlling the land in such a way that offers ability to make use of it, while the reason for 'ushr is the presence of output. 'Ushr relates directly to the output of the land, while kharaj relates to the liability of the holder. Just like those of zakah, the proceeds of 'ushr are distributed to the eight categories mentioned in the verse "The sadaqat are only for the poor . . . ." while the proceeds of kharaj are used for salaries of soldiers and civilians and for public interests. With all these differences, there should be no reason why 'ushr and kharaj cannot be levied together on the same land. It is just like paying a rent for a store and zakah on inventory. This is similar to the case of a person who, while in the state of ihram for pilgrimage, kills an animal that is owned by someone else. This person is required to compensate the owner, in addition to the kaffarah required from him because he or she was in a state of ihram.

Thirdly, 'ushr is obligated by clear texts from Qur'an and Sunnah. It must not be waived because of kharaj that came about through ijtihad.180

The arguments given by the majority of jurists are clear cut and strong, both in their authenticity and their indication. The Hanafites cannot challenge them, and the waiver of zakah they suggest is not accepted. Ibn al Mubarak, after looking at this evidence, comments, "Should we leave what God says for what Abu Hanifah says?" The majority of scholars disprove the argument of the Hanafites as follows:

Firstly, the saying "Ushr and kharaj must not be combined" is according to al Nawawi, false and unanimously graded weak. In its chain, Yahya bin 'Anbasah singly narrates from Abu Hanifah from Hammad from Ibrahim from 'Alqamah from Ibn Mas'ud from the Prophet (p). Al Baihaqi says this saying is narrated by Abu Hanifah from Hammad from Ibrahim as being Ibrahim's own statement. Yahya mistakenly connects it to the Prophet. Yahya is openly known as weak, because he attributes to trustworthy individuals false sayings. Al Suyuti in al La'ali quotes Ibn Habban and Ibn 'Adiy, "This saying is false, narrated by Yahya, who is a liar."183

Secondly, al Nawawi says about the saying from Abu Hurairah which begins, "Iraq will prevent . . . .", "There are two famous interpretations of this saying, namely that they will become Muslims and therefore jizyah will be eliminated or that there will be so many disasters and so much misery that people will refuse to pay the dues obligated on them. This saying does not mean non-obligation of 'ushr, because it speaks about zakah due on gold and silver. If it implies the elimination of 'ushr, it must also mean the elimination of all zakah.184

Thirdly, as for the story or the Persian woman who converted to Islam, kharaj was mentioned by 'Umar to make it clear that kharaj remains obligated, and is not like jizyah, which is eliminated by conversion to Islam. The story does not say anything about 'ushr. Some scholars also mention that this might be an instruction from 'Umar to the kharaj collector, who is usually a different officer from the 'ushr collector.185

Fourthly, the claim that rulers since 'Umar have agreed not to collect kharaj and 'ushr from the same land is defeated by the authentic report that 'Umar bin 'Abd al 'Aziz collected 'ushr and kharaj together. Yahya bin Adam reports that Umar bin Maimun bin Mahran said, "I asked 'Umar bin 'Abd al 'Aziz about a muslim who holds kharaji land.

'Umar answered, 'Take kharaj from here' as he pointed to the crop with his hand.

Shuraik thought 'Umar may not have said exactly that, so he researched until he was informed, then he followed suit."186 The claim that 'Umar and the Companions did not collect 'ushr and kharaj simultaneously is refuted, because during that time the holders of land in conquered areas were still disbelievers. No one can make the assertion that they did not collect 'ushr from those who became Muslim.187

Fifthly, the claim that kharaj and 'ushr are imposed for the same reason is disproved by the fact that 'ushr is imposed on crops while kharaj is imposed on the land, whether it is cultivated or not. In other words, kharaj is imposed for having the ability to use the land, while 'ushr is imposed for having an output.188

Sixthly, the claim that kharaj is a punishment for the owner's disbelief is disproved by the similarity between rent and kharaj. Kharaj is a rent taken for permitting the holder to use the land, like what is called today real estate tax. The kharaj payer rents the land in order to cultivate it.189

As for the calculation of the payment due as 'ushr my position is to treat kharaj as a debt on the farmer that must be deducted from the output before the calculation of 'ushr.

Let us look at a map of the Muslim world today to see what has happened to kharaji lands in Egypt, Syria, Iraq, etc. Are they still kharaji?

Many late Hanafite jurists declare that the lands of Syria and Egypt are no longer kharaji, because upon the deaths of their owners those lands were returned to the treasury, and any selling that took place by the state treasury is complete and final, without kharaj.190 Accordingly, if kharaj is eliminated, 'ushr is obligated as the zakah on Muslim agriculture. Real estate taxes on agricultural land are the common practice of all modern states, regardless of whether the land is 'ushri or kharaji. Consequently, the only suitable solution is to impose 'ushr on all land owned by Muslims if the output reaches nisab, in addition to the real estate tax levied on all lands.

Dr. Ahmad Thabit Awaidah says "We are supposed to refer to the distinction Muslims made between agricultural income and real estate income when they separated kharaj from zakah. This distinction constitutes the base for the contemporary distinction of the source of income in taxation. Many countries today have taxes on real estate income different from the taxes on agricultural income. The majority of jurists consider kharaj a tax on the real estate income, while zakah on crops is like a tax on the agricultural income. A Muslim who farms land owned by a non-Muslim must pay zakah on his output, in addition to kharaj paid by the owner. By the same token, a Muslim who owns and farms kharaj land must pay 'ushr as well as kharaj."191

After disproving the evidence of the Hanafites and supporting the majority's view, the late Shaikh Mahmud Shaltut and Muhammad al Sayes write, "Once we note that 'ushr is a religious obligation on Muslims and kharaj is an obligation by ijtihad created to finance the needs of the Muslim community, we can understand the state's right to impose taxes on Muslims and non-Muslims in order to satisfy public needs, in addition to what God imposed on Muslims. The levying of kharaj does not mean an exemption from zakah, which is obligated by Qur'an and Sunnah."192