Fiqh Al Zakah by Dr. Yusuf al Qardawi

Prologue.

Section 1: Buried treasures.

Section 2: The obligation on minerals.

Section 3: The rate on minerals.

Section 4: Nisab of minerals.

Section 5: The issue of the passage of one year.

Section 6: Disbursement of what is collected from minerals.

Section 7: Sea products.

Ibn al Athir writes in al Nihayah "minerals are the jewels extracted from the earth, like gold, silver, copper, and others."1 Ibn al Humam says "The root of the word ma'dan (Arabic for mineral) means to stay or reside." Ma'adin (minerals) are called so because they stand still in the earth. Buried treasures are the wealth put in the earth by human beings. Rikaz means both minerals and buried treasures. The root of the word rikaz means "to stay still".2 Ibn Qudamah defines minerals as anything put by God in the earth of a nature different from the earth itself and extracted therefrom, which has value. This definition excludes things extracted from the sea, put in the earth by human action, things that are of the nature of the earth such as soil and things that carry no value.

Example of minerals are gold, silver, lead, iron, diamond, oil, sulphur, etc.3

Buried treasure includes all things of value left in or on the earth by people in the past, such as gold, silver, used metals, and the like. Jurists obligate a charge of one-fifth on the person who finds such wealth, in accordance with the narration of Abu Hurairah that the Prophet (p) said, "One-fifth is obligated on rikaz." It is reported by the group.4

Things buried in the earth are defined unanimously as rikaz. Al Nasa'i reports from 'Umar bin Shu'aib from his father from his grandfather, "The messenger of God (p) was asked about lost and found things, and said, 'When you find things on roads used by people or in inhabited areas, you must announce it for one year. If the owner appears, give him what belongs to him, and if not, it is yours. But things found in deserted roads or villages are charged, as in the case of rikaz, one-fifth."5

These two sayings indicate the following:

A. One-fifth is due on things found where no owner exists, regardless of whether they are on the surface of the earth or inside it. Things found in inhabited areas must be given to owners.

B. The majority of scholars believes that rikaz includes anything that exists on the surface of the earth or under it. Al Shafi'i is an exception, because he restricts the meaning of rikaz to gold and silver only.6 The view of the majority is consistent with the general texts.

C. The two sayings apparently indicate that the fifth is obligated on the finder, Muslim or not, minor or adult. This is the view of the majority, Al Shafi'i says non- Muslims are not obligated to pay a fifth, because this payment is a form of zakah. It is claimed that he says children and women are not allowed to own found rikaz. Ibn Qudamah contends, "We rely on the generality of the saying 'One-fifth is obligated on rikaz, and the remainder belongs to the finder."7 Ibn Daqiq al 'Id notes that the closest view to the text of the sayings is that one-fifth is obligated on all or at least most forms of rikaz.8

D. Apparently, the saying does not refer to any nisab. The fifth is obligated on any quantity of found treasures, according to Malik, Abu Hanifah and his disciples, Ahmad, Ishaq, and al Shafi'i in the old version. This wealth, on which one-fifth is flatly obligated as on ghanimah, needs no nisab. Finding treasures does not involve great expenditure which needs to be deducted to attenuate the burden of the payer. In this respect they are unlike minerals and grain.9 The later view of al Shafi'i is to consider nisab on found treasures, because the charge is a due on wealth taken from the earth, and must be treated like minerals and grains, which have nisab.9

E. It is agreed upon to abolish the condition of one year's passage. Dues are obligated immediately, In al Fath, al Hafiz writes, "Strangely enough, Ibn al 'Arabi mentions that al Shafi'i retains this conditions, but this is not found in any of al Shafi'i's writings or in the writing or his disciples."10

F. The saying does not refer to the disbursement of this fifth due on rikaz. Al Shafi'i and a narration from Ahmad show that it must be disbursed like zakah, because of a report made by Ahmad that "'Ali bin Abi Talib ordered it given to the needy, and because it is a wealth earned from the earth, which makes it similar to grain and fruit.

Abu Hanifah, Malik, Ahmad in another narration, and the bulk of jurists believe that this fifth is expended the same way the fai' is i.e. as a part of the general budget of the state. Abu 'Ubaid reports from al Sha'bi that a man found one thousand dinars buried at the outskirts of Madinah and brought it to 'Umar, who took one-fifth (two hundred dinars and returned the remainder to the man. Then 'Umar divided the two hundred among those Muslims who were present, until a few dinars remained. 'Umar called the finder and gave him these few dinars. The author of al Mughni comments, "if it were zakah, 'Umar would have restricted its distribution to the deserving recipients instead of all Muslims present then, and definitely would not have given the finder any part of the one-fifth, "Moreover, it is argued that since the fifth is also obligated on non-Muslim finders, and non-Muslims cannot be obligated to pay zakah, so it must not be treated like zakah. Additionally, it is similar to war booty taken, in fact, from past generations of disbelievers.12

Finding treasures is always rare, and more important is the following section on minerals, which usually represent a substantial sector of the economy.

The importance of minerals, solid and liquid, in human life is unquestionable. If grains and fruits are zakatable, should not minerals be zakatable too, since all come from the earth? Jurists, in total, do not dispute that there are dues obligated on minerals, although they differ on the details. Dues on minerals are obligated in accordance with the general principle established by the verse, "O ye who believe, spend out of the good things ye have earned and that which We produce for ye from the earth."13 No doubt minerals are among the things produced for us by God from the earth.

Jurists differ on whether this obligation covers all mining activities or only selected metals. It is known that al Shafi'i restricts it to gold and silver only, leaving all other minerals and precious stones unzakatable. Abu Hanifah and his disciples include metals extracted from the earth that are usually treated with heat.14 This opinion is based on the analogy to gold and silver, whose zakatability is confirmed by texts and ijma'. The Hanbali school does not make any distinction between metals treated with heat and metals that are not treated with heat. According to this school, all minerals that come from the earth are zakatable, whether solid like iron ore, lead, and copper, or fluid like petroleum. This opinion is shared by Zaid bin 'Ali, al Baqir, al Siddiq, and all Shi'ite jurists except al Mu'ayad, who excludes salt, petroleum, and asphalt.15

Abu Ja'far al Baqir was asked about salt mines. His answer was, "This mineral is subject to the one-fifth due." When asked about sulphur and petroleum, he replied, "These and their likes are charged one-fifth."16

It seems that the Hanbali view is supported by the linguistic meaning of the word "minerals" and by reasoning, since as far as zakatability is concerned, there is no difference between solid and liquid minerals or between those treated by heat or not so treated. All of them are kinds of wealth that must be dealt with similarly. If the great scholars from previous centuries had seen the importance of petroleum, which is even called black gold, in the economic life of the world today, they would not have hesitated about its zakatability. Ibn Qudamah gives the following points in support of this view.

A. The generality of the verse "and out of what We have produced for you from the earth . . . . ." B. The general implication of the word "minerals" as a form of wealth extracted from the earth, which must be zakatable, like gold and silver.

C. Minerals are a form of wealth. If they are taken as war booty, they would be subject to a one-fifth due. The same wealth, taken from the earth, should be subject to zakah.17

Abu Hanifah, his disciples, Abu 'Ubaid, Zaid bin 'Ali, al Baqir, al Sadiq, and all Zaidi and Imami jurists believe that the rate is one-fifth. Ahmad, Ishaq, Malik, and al Shafi'i argue that the rate must be like that of gold and silver, i.e. two-and-one-half percent.18 Malikites distinguish between minerals that take cost and effort to extract, in which case two-and- one-half percent is obligated, and mineral that do not need cost and effort to extract, in which case twenty percent applies.19

There is yet another opinion known among Malikites, that all minerals and ores, liquid or not, are owned by the national treasury of the Islamic state, on the ground that they in fact belong to the whole society together and their exploitation must not be left to a few individuals. Their output must also be spent for the public interest of the Islamic society.20 This opinion may derive support from a report by Abu 'Ubaid that Abyad Hammal al Mazini asked the Messenger of God (p) to grant him the salt in Ma'rib and the Messenger agreed to do so. Abyad adds, "When I left, the Messenger was told, 'Do you know what you have just granted him? You gave him wealth like running water.' The Prophet took it back from me."21 Abu 'Ubaid says this granting and retrieving the grant indicates that the Prophet gave Abyad the land on the assumption that he was going to use it for reclamation and agriculture. When the Prophet realized that it was a huge amount of wealth in salt, he took it back from him. The Messenger's traditional practice with regard to pasture land, firewood and water, is that they belong to all people together as partners; he hated to give such property to one person alone.

Consequently, such things as petroleum, iron ore, etc., must belong to all people together under the holdings of the Islamic state.22

Malik reports in al Muwatta from Rabi'ah bin Abi 'Abd al Rahman, from more than one narrator, that the Messenger of God (p) granted Hilal bin al Harith the minerals of al Qibliyah (a coastal area five days walking distance from Madinah) in the direction of al Qar'a (a place between Madinah and Nakhlah). Those minerals are charged only zakah (meaning 2.5% ) until today.23 Al Shafi'i in al Umm says after reporting this saying, "This is not confirmed as authentic by critics of hadith. Even if it were accepted, all it indicates is that the grant was given by the Prophet. The application of the rate of zakah on minerals instead of the one-fifth rate is not narrated from the Prophet (p) in this saying."24 Abu 'Ubaid says, "This saying from Rabi'ah on al Qibliyah has no acceptable chain.

Additionally, it does not mention that the Prophet ordered the rate; all it says is that zakah is collected from the minerals until today. If the choice of the rate was authentically reported from the Prophet, it would have been irrefutable evidence."25

A. Abu Hanifah and his disciples present the saying of the Messenger of God (p)

"One-fifth is obligated on rikaz."26 They add that two things can be extracted from earth:

the first is treasures buried by human beings and the second is minerals created by God.

The word rikaz includes both; its literal meaning is minerals and its allegorical meaning is treasures.27

On the other hand, Malik, al Shafi'i, and most Hijazi jurists argue that minerals are not rikaz and that rikaz only means treasures buried by people in the earth. They cite the saying, reported by the group, from Abu Hurairah that the Prophet (p) said, "Harm inflicted by animals is unclaimable, and harm inflicted while (working inside) a well is unclaimable, and harm inflicted while (extracting) minerals is unclaimable, and one-fifth is obligated on rikaz." They argue that since the Prophet makes a distinction between minerals and rikaz, using the article "and" between them, they must be two different things.

The opposing Hanafites then argue that minerals must be included in the Prophet's word rikaz, because when he mentioned minerals he was talking about the harm inflicted in their extraction. If he had then said, "and one-fifth is obligated on them," buried treasures may have remained uncharged. Because of that possibility of ambiguity, the Prophet used a more general word, rikaz, which includes both minerals and buried treasures.28 No language specialist could put an end to this dispute, because both the Iraqi and the Hijazi jurists include people who are well versed in Arabic, such as Muhammad bin al Hasan and al Shafi'i.

It seems that the word rikaz has in fact two meanings. Al Qamus and other Arabic dictionaries define rikaz as minerals God put in the ground and what the ancients buried of metalic pieces of gold and silver.29 Ibn al Athir in al Nihayah says that according to the Hijazis, rikaz means ancient treasures buried in the ground, and according to the 'Iraqis, rikaz means minerals. Linguistically, both meanings are possible because each of them is something put in the ground and made steady in it.30

Abu Hanifah presents another saying from Amr bin Shu'aib, from his father from his grandfather, that "A man asked the Messenger of God (p) about things found in old buildings that are being demolished. The Prophet said, One-fifth is obligated on this and on rikaz.'"31 Abu Hanifah adds that the use of the additive article "and" must mean that the two things are different, so rikaz cannot mean buried treasures, and consequently must mean minerals. Some of Abu Hanifah's disciples add that even if minerals are not initially called rikaz, the common use of the word by people was in that meaning.

Muhammad bin al Hasan, a reknowned scholar of the Arabic language, says, "Arabs say rakaza for mineral ore when it has a high ratio of gold and silver in it."32 The author of al Bada'i writes "Rikaz is derived from the verb rakaza, which means to make stand still."33

B. The second argument given by Hanafites is the analogy between minerals and war booty. They say the minerals were inside the earth when it was in the hands of unbelievers, and when Muslims took over they did not a dig underground to reach these minerals, leaving them untouched. Their extraction later must be subject to the same principle applied to the unbelievers property above the ground, i.e. one-fifth must be charged.33

The argument is difficult to accept, because it is founded on assuming that underground wealth remains in the ownership of unbelievers until it is extracted. How could one make such an assumption about the lands of Islam and Muslims? And who is to tell us that these minerals were installed inside the land before or after Islam?

C. Imami jurists make the analogy between minerals and war booty on the basis of the meaning of the word ghanimah (war booty) mentioned in the verse, "And know that out of all the booty that ye may acquire, (in war), a fifth share is assigned to God, and to the Apostle, and to near relatives, orphans, the needy, and the wayfarer."34 According to Imamis, not only war booty but also things extracted from land or sea.35 The author of al Rawd al Nadir (in Zaidi Jurisprudence) says that such generalization of the word ghanimah is questionable, because first, the word mentioned in the verse applies only to war booty on the basis of its context, and second, the word ghanimah as used in the Qur'an and the sayings, like ''Ghanimahs are made lawful for me," is a religious concept and not only an Arabic word. This argument is based on the principle known among the scholars of usul that a general word may be used for a specific meaning by additional indications in Shari'ah. When a word is used like this, it becomes restricted to that meaning alone. The judge 'Abd al Wahhab al Maliki wrote a chapter on restricting general words to specific intended meanings, in such a way that meaning of the word in Shari'ah becomes only that specific one, and the word may not be taken to mean its original linguistic meaning except by additional evidence, even though the absolute use of the word may imply that general meaning. Some disciples of al Shafi'i agree with that, including Abu Bakr, al Qaffal, and others. Ibn Daqiq al 'Id refers in his commentary on al 'Umdah to the principle that the context sometimes indicates the specific meaning of a general word or gives more weight to one or more of the meanings included.36

Summing up, it appears that the only strong argument for the rate of twenty percent on minerals is that minerals are rikaz and rikaz is charged one-fifth. This is the view selected by the great scholar Abu 'Ubaid, who also reports from 'Ali bin Abi Talib a statement in its support.37

Some jurists argue that if the cost of extraction is high, relative to the amount of mineral taken, the rate must be 2.5%. On the other hand, when the cost involved is small or negligible, relative to the amount of mineral extracted, the rate must be one-fifth. This is also a narration from Malik and al Shafi'i,.38 This trend is induced by the attempt to reconcile the sayings which indicate that gold and silver, which are minerals, are charged 2.5%, and the sayings which indicate that the charge on minerals is one-fifth.

Another inducement for this approach is the fact that the rate of zakah on agriculture differs according to irrigation costs.

Al Rafi'i, a Shafi'ite, says "In reconciling all texts together, minerals obtained without cost or sweat must be charged one-fifth, while these obtained by effort and cost must be charged 2.5%, just as irrigation costs change the rate on agriculture."38

Obviously, "The difference between 20% and 2.5% is substantial. It may be reasonable to impose a rate of 10% or 5% according to the value of extracted minerals relative to cost involved. This is not an invention of new rates in Shari'ah, but application of clear analogy, because Shari'ah makes a similar distinction in rates according to the value of the item and the cost of its production.

Abu Hanifah, his disciples, and the scholars of Ahl al Bait believe that dues on minerals apply to any quantity regardless of nisab, on the grounds that the sayings do not refer to nisab or to the passage of one year on rikaz. Malik, al Shafi'i, his disciples, Ahmad, Ishaq argue that there must be nisab, and that it is equal to the nisab of money, since general sayings determine nisab for gold and silver, as in "No zakah is obligated on anything less that five uqiyyah (of silver) and nothing is obligated on a hundred and ninety (dirhams),"39 and since ijma sets the nisab of gold at twenty dinars.

The correct view seems to be that we must consider nisab, but the passage of one year is not required, since, as al Rafi'i states, nisab is needed for the wealth to be substantial enough to relieve the recipient, while the passage of one year is given for wealth to be invested and to grow. Minerals extracted from the ground are themselves the increase, like plants and fruits. So, like on grains and fruits, there must be nisab, but there is no need for the passage of one year.40

Nisab need not be produced at one time. Things extracted are added together, and if they add up to the amount of nisab in a period of one year, then zakah applies, even though the output may be sold as time goes. This period is similar to the season in the case of crops. Small interruptions in production do not affect this accumulation, but after a long interruption a new period of accumulation starts.41

I believe such a matter should be left to specialists, in accordance with the advice in the Qur'an, "Before thee, also, the apostles We sent were but men to whom We granted inspiration. If ye realize this not, ask of those who possess the Message."42

The majority of jurists argue that dues on minerals are payable at the time of extraction, after initial preparation and refinement. Malik notes, "Minerals are like crops." Dues on them are collected on similar dates, i.e. the day of extraction, without any need for the passage of one year."43 According to al Nawawi, this is the view of the masses of scholars, from the precedent-setters and the later generations. It is confirmed in most Shafi'i writings,44 and is the approved opinion in the school of Ahmad.45

Ishaq and Ibn al Mundhir disagree. They require the passage of one year because of the saying "No zakah is obligated on wealth until one year elapses."45 This saying is, however, weak, and it is unanimously agreed that it does not apply on all cases, since agriculture is excluded. Minerals should likewise be excluded, by analogy. The author of al Mughni writes, "since minerals are wealth earned from the earth, then like agriculture and buried treasures, there is no need for the condition of the passage of one year. Moreover, this condition is put in order to allow wealth to grow. Minerals are, like fruits, the result of the process or growth itself, so there is no such condition."45 The author of al Muhadhdhab says "Dues on minerals are payable when minerals are obtained, without any consideration of the period of one year, because the lapse of such a period is meant to give time for the asset to grow, but minerals are the fruits and growth of land, like agriculture."46

Jurists differ in categorizing dues on minerals. Abu Hanifah and a group of jurists classify these dues with fai' and argue that they must be disbursed the same way fai' is.

Malik and Ahmad consider it zakah. We have two reports from the Shafi'ites. Some Shafi'ite jurists say it is like zakah, and others say it depends on the applied rate---if 20% is applied it must be treated like fai', but if 2.5% is applied it must be treated like zakah.

Those who do not classify this due as zakah apply the charge one-fifth to non- Muslims too, while those who classify it as zakah do not, because zakah, as a form of worship, is not applicable to non-Muslims.47

According to Abu Hanifah, his disciples, al Hasan bin Salih, and Zaidi jurists, nothing is due on such materials. This is also the opinion of Ibn 'Abbas, as reported by Ibn Abi Shaibah and others. Ibn 'Abbas writes, "Amber is not rikaz. It is something thrown out by the sea, and nothing is imposed on it."48 Apparently, this means that no charge is obligated on it. Additionally, Jabir bin 'Abd Allah is reported to have said "Amber is not ghanimah. All of it goes to the person who acquires it,"49 meaning that the one-fifth due on ghanimah is not obligated on amber. Abu 'Ubaid comments, "Here we find two Companions of the Prophet (p) believing it is not charged anything."49

On the other hand it is authentically reported that Ibn 'Abbas said about amber, "If anything is charged on it, it must be one-fifth." It seems that Ibn 'Abbas changed his opinion after a specific incident. 'Abd al Razzaq reports via a correct chain Ibrahim bin Sa'd, who was governor of Eden, asked Ibn 'Abbas about amber. Ibn 'Abbas reply was "If anything is charged, it must be one-fifth."50 Eden was an area where amber was produced. Thus Ibn 'Abbas gave a different opinion in consideration of interests recognized in Shari'ah. It is reported via al Hasan bin al 'Amarah from lbn 'Abbas from 'Umar bin al Khattab that one-fifth must be charged on amber and every jewel extracted from the sea.51 Additionally, Ibn 'Abbas is reported to have said that Ya'la bin Mainah wrote to 'Umar about a piece of amber found at the coast. 'Umar asked the Companions who were present, and they suggested one-fifth be collected from it. 'Umar wrote, "Onefifth is obligated on it and on every jewel that comes out of the sea."52 There is also another report from 'Umar that runs in opposition to this one, which says he wrote "Collect one-tenth from jewels of the sea and from amber." All these reports from 'Umar do not reach the level of authenticity and even if they were authentic they would simply indicate that the issue of rate is subject to ijtihad.

Obligating one-fifth on amber and pearls is reported from some Followers too. Abu 'Ubaid reports it from al Hasan al Basri and Ibn Shihab al Zuhri.53 'Abd al Razzaq and Ibn Abi Shaibah report it from 'Umar bin Abd al Aziz.54 This is the view of Abu Yusuf.55 Ahmad is reported to have said that amber and pearls are zakated like minerals.56 Abu 'Ubaid selects the view that no charge is put on things extracted from the sea, arguing that people at the time of the Prophet and his successors used to extract materials from the sea and no charge on that is reported in Sunnah. This indicates these material are exempt, the same way horses and slaves are exempt. Those who obligate one-fifth on extracts from the sea and do so only by analogy to minerals extracted from land. Those who do not do so believe extracts from the sea and minerals are not alike, since the Prophet distinguishes between them by stating that one-fifth is obligated on rikaz and remains silent on extracts from the sea.57 But one may argue, what is analogy but applying the ruling mentioned in the texts to something similar about which the texts are silent?

If extracts from the sea are not a form of ghanimah, they are then similar to minerals extracted, from the land and must be treated likewise. For these reasons, I choose to obligate a charge on such extracts, whether this charge is called zakah or not. The rate of this charge must be determined by people of wisdom and knowledge, as indicated by 'Umar when he consulted the Companions. Different rates are applied in Shari'ah on agricultural products, depending on the cost and effort involved in irrigation. Here, also, the rate must be chosen in consideration of expenses involved, as well as the value of materials extracted. Whenever costs minimum and value is high, the rate should be the higher one. There are reports from al Shafi'i and Malik to this effect concerning minerals. When I discussed the rate on minerals, I supported the view that through ijtihad, a rate of one-tenth or one-half of a tenth be selected according to interests considered. Abu 'Ubaid reports that 'Umar imposed one-tenth, and comments, "I know of no reason why one-tenth is selected, because sea extracts are now treated like rikaz (where 20% applies) or like minerals (where 2.5% applies) according to the view of jurists of Madinah. 'Umar imposed one-tenth, which seems to be taken by analogy to agriculture, and I know of no one else who expresses such a view."58 This means that there is nothing to prevent new opinions on this matter, as long as they are founded on valid evidence and reasoning.

The fishing industry is important in today's economic life, producing millions of dollars worth of fish. What is its treatment in Shari'ah from the point of view of zakatability?

Abu 'Ubaid reports from Yunus bin 'Ubaid, "'Umar bin 'Abd al 'Aziz wrote to his governor of 'Oman, 'Do not take anything from fish until it reaches two hundred dirhams in value similar to nisab of money. Once it becomes two hundred dirhams, take zakah from it."59 A similar view is reported from Ahmad.59 Imamis believe the rate must be one-fifth, like on ghanimah. Here also I present the same opinion that I expressed regarding the extracts from the sea.