Fiqh Al Zakah by Dr. Yusuf al Qardawi

Since zakah is a special tax that aims at achieving particular objectives in the lives of individuals as well as society as a whole, it is obvious that there are certain categories to whom zakah must not be given. These categories are:

1. The rich.

2. Those capable of earning.

3. Disbelievers and apostates who fight against Islam, and, according to the majority of jurists, People of the Pledge.

4. Children, parents, and wives of zakah payers.

5. Descendents of the Prophet (p) .

These will be studied in the following sections.

Based on the saying of the Prophet (p) "The sadaqah is not lawful to the rich", and his address to Mu'adh that zakah is ". . . to be taken from their rich and rendered to their poor", Muslim jurists unanimously believe zakah must not be given to the rich. Giving the rich zakah violates the very purpose of zakah, which is to enrich the poor. Yet, when it comes to defining richness that prevents receiving zakah, jurists do not have a unified opinion, as was shown earlier when we discussed the definition of the poor ad needy.

There is also disagreement about giving zakah to the rich under the title of 'in the way of God' or of those under debt. Hanafites do not allow this on the basis of the above sayings. They make an exception for zakah workers, since what is paid to workers is merely the price of their labour. Other leading jurists contend that the saying from Mu'adh mentions only the poor because enriching this category is the major goal of zakah. They point out that if zakah could only be given to the poor and needy, there would be no meaning to the other six categories mentioned in the zakah distribution verse. By the same argument through which Hanafites exempt workers, those scholars permit paying zakah to the rich if they are fighters in the way of God or under debt for mediating disputes.

The fact is, the verse on zakah dispersement includes two kinds of deservants. The first group encompasses those who are in need: the poor, the needy, slaves needing liberation, individuals under personal debts, and wayfarers. These all are given zakah because they need help and relief. The second group comprises those whom the Muslim community needs: workers for the zakah agency, individuals whose hearts are being reconciled, persons under debts caused by public service, and fighters in the way of God. These people are given regardless of their poverty or wealth. The Prophet (p)

himself specifies, that "sadaqah is not lawful to the rich, except in five cases: the fighter in the way of God, the zakah worker, the debtor, a person who buys from a zakah recipient an item given as zakah, and a person whose poor neighbor receives zakah and gives him a gift from it." Al Nawawi comments, "This is a correct or good saying, reported by Abu Daud through two chains, one mursal and the other linked to the Messenger (p)."2

Whether a child is male or female. If the father is rich, the child is considered rich.

However, if the son or daughter is adult, the wealth of his or her father is not considered in the determination of the richness or poverty of the child.3 Wives are also considered according to the prosperity of their husbands. A poor woman is not a zakah deservant if her husband is rich.

Hanafites consider giving the wife of a rich husband from zakah permissible, but Abu Yusuf disagrees.4 Most Hanafites argue that the nature of the husband's obligation to spend on his wife is contractual, while the father is obligated to spend on his young child by virtue of parenthood.5 Some Shafi'ites go along with the Hanafites and allow payment of zakah to the wife of a rich man. Some even allow giving a rich man's child zakah.6 As for Malikites, they believe it is not permissible to give zakah to any poor person whose subsistence ad expenses are the responsibility of a rich person, except if the rich person responsible for the expenses of the poor can not be reached at all.

In my opinion, zakah must not be given to any person whose living expenses are on the shoulders of a rich person, such as the wife or young child of a rich man. This does not apply to other relatives whose living expenses are not the duty of the rich person.

Several sayings prohibit payment of zakah to the rich and to men who have no physical or mental defects or handicaps. Zakah is not given to the strong because they are required to work and earn, instead of depending on charity. If a capable person can not find job, he may be given zakah, since the issue is the availability of jobs in the market at which he can earn his living, as well as ability of the person.9

Hanafites believe zakah may be given to an income earner, if all he owns is less than nisab, on the grounds that such a person is, in fact, poor. Ibn al Humam points out that several scholars do not allow income earners to take zakah, in accordance with the saying, "The sadaqa is not permissible to the rich or to the strong who is safe from defects" and the Prophet's answer to two strong and capable men who asked for zakah:

"Indeed you have no right to it, but if you wish I would give you." The last sentence indicates that asking for zakah is not permissible, while receiving it without asking is allowed.10

One may argue that the Prophet (p) gave them the option of receiving zakah because he was not sure about their true situation, although they looked capable of earning. This is the essence of Abu 'Ubaid's comment. He adds that strength and ability to work must be associated with the availability of suitable job yielding sufficient income. A person who is able to work but does not find a job may be given zakah, as indicated by the verse. "And in their wealth their is the right of he who asks and he who is deprived". Ibn 'Abbas is reported to have explained "he who is deprived" as a craftsman who does not earn sufficiently.11

Muslims unanimously agree that zakah cannot be paid to unbelievers who fight Muslims.12 This ijma' is based on the verse "God only forbids you, with regard to those who fight you for your faith, drive you out of your homes, and support others in driving you out, from turning to them for friendship and protection. It is such as turn to them in these circumstances that do wrong."13 Financial help to such enemies would be used against Muslims in one way or another. Unbelievers who deny the existence of God, the principle of Prophethood, or faith in the Hereafter likewise cannot be given zakah, and neither can apostates who turn their backs on Islam and the Muslim community after having tasted faith.

As for People of the Pledge, i.e. the people of the Book, and all who like them, live within the Muslim society, pledging their sincerity to the state, and obeying its laws, their are differences among Muslim scholars regarding giving them zakah and charity.

There is nothing to prevent Muslim from giving People of the Pledge voluntary charity, out of humanitarianism as well as in consideration of their pledged mutual commitment with Muslims. Being non-Muslims does not prevent them from being given charity of Muslims, as long as they are not fighting against the cause of Islam, for "God forbids you not, with regard to those who fight you not for your faith nor drive you out of your homes, from dealing kindly and justly with them. For God loves those who are just."14 This verse was sent particularly for those Muslims who were hesitant to give charity to their unbelieving relatives. Ibn 'Abbas says "They (the Companions) used to dislike giving charity to their kin and relatives who were unbelievers; they asked, and were permitted, to do so by this verse: 'It is not required of thee, O Apostle, to set them on the right path. God sets on the right path whom He pleases: whatever of good ye spend benefits your own souls, and ye shall only do so seeking the face of God.

Whatever good ye give shall be rendered back to you, and you shall not be dealt with unjustly.'15,16 According to Ibn Kathir, the verse means that if the giver of charity aims to please God, he or she is rewarded by God regardless of whether the recipient of the charity is righteous or not, or deserving or not. The giver is rewarded for his or her intention.17 In another verse, God praises those who "... feed for the love of God the indigent, the orphan, and the captive."18 Captives in Muslim society were obviously disbelievers, as reported by al Hasan and others.19

Zakah of al fitr, recompenses, and other voluntary pledges, are like voluntary charity as far as giving to the People of the Pledge is concerned. Abu Hanifah, Muhammad, and some other jurists permit paying these charities to People of the Pledge, on the grounds that texts about these charities are general, such as the verses "If ye disclose acts of charity, even so it is well, but if ye conceal them, and make them reach those really in need, that is best for you. It will remove from you some of your stains of evil"20, "For expiation, feed ten indigent persons on an overage scale of the food of your families"21

and "but if any is unable to do so, he should feed sixty indigent ones."22 These verses make no distinction between indigent believers and unbelievers which is an expression of the generally required good treatment of People of the Pledge. Obviously, those scholars believe giving Muslim indigents is undoubtedly better, since it helps a person who obeys God. Abu Hanifah establishes the condition that the disbeliever must not be fighting against Muslims in order to be given zakah of al fitr.23 Lastly, Abu 'Ubaid and Ibn Abi Shaibah report that some Followers gave monks zakah of al fitr.24

The majority of scholars believe zakah must not be given to any non-Muslims. Ibn al Mundhir claims this is unanimous.25 This view is founded on the saying reported from Mu'adh, "God prescribes zakah on their wealth, to be taken from the rich among them and rendered to the poor among them". "The pronoun" them refers to Muslims.

The claimed ijma is disputed. Ibn Sirin and al Zuhri reportedly allowed paying zakah to unbelievers.26 In al Mabsut al Sarakhsi notes that Zufar, a disciple of Abu Hanifah, allows giving zakah to the People of the Pledge. Al Sarakhsi adds, "This is implied by analogy, since the objective of zakah enriching the poor - is fulfilled by giving any poor persons regardless of their faith." This is refuted by virtue of the above saying from Mu'adh.27

Ibn Abi Shaibah reports that when Jabir bin Zaid was asked to whom sadaqah was to be distributed, he replied, "To people in your area, Muslims and People of the Pledge," and continued "The Messenger of God (p) gave the People of the Pledge from sadaqah and the one-fifth."' The question is obviously about zakah, but it may mean voluntary sadaqah as well although only zakah was collected and distributed at the time of the Prophet (p). At any rate, the saying is only mursal . Ibn Abi Shaibah also reports Umar's comment that the verse "The sadaqat are only for the poor..."29 includes People of the Pledge who are chronically ill.30 Abu Yusuf reports that 'Umar assigned a regular subsidy for an elderly Jewish man from the treasury of the Muslim state, on the grounds that the old man was covered by the above verse.31 The author of al Rawd al Nadir comments that these stories indicate 'Umar believed it was permissible to give zakah to the People of the Book.32 A similar opinion is quoted from Zaidis by the author of al Manar. The author of al Bahr quotes al Zuhri and Ibn Sirin as saying the same; the latter adds "this action is done because of the generality of the term" the poor "in the verse."33

Al Tabari reports that 'Ikrimah believes the word "needy" in the verse refers to poor people of the Book.34 'Ikrimah says, "Do not call poor Muslims needy. The needy means poor people of the Pledge."35 Some jurists argue giving zakah to people of the Pledge is only permissible if no deservant Muslims are found, as reported by al Jassas, from 'Ubaid Allah bin al Hasan.36 Some Abadis believe the same.37

The argument of the majority depends mainly on the saying from Mu'adh, which is agreed upon as correct. However, this saying does not clearly exclude non-Muslim poor, since it may simply mean zakah should be collected and distributed in the same area.

This saying is often quoted to support the policy of non-transportation of zakah from one land to another.

On the other hand, the generality argument forwarded by Hanafites with regard to the sadaqa of al fitr is very strong. It is supported by 'Umar, al Zuhri, Ibn Sirin, 'Ikrimah, Jabir bin Zaid, and Zufar. It is further supported by the verse "God forbids you not, with regard to those who fight you not for your faith nor drive you out of your homes, from dealing kindly and justly with them."38 After comparing these arguments, one may conclude that zakah must first be given to poor Muslims, since it is taken from Muslim rich alone. But there is nothing to forbid giving zakah to the poor people of the Pledge, as long as such action does not harm the privileges of the Muslim poor.

Obviously, the above discussion refers to giving zakah to poor non-Muslims because of their poverty. As for giving zakah to people of the Pledge for reasons other than poverty, such as reconciling their hearts and bringing them closer to Islam, the Muslim community, and the Islamic state, the matter is different. Earlier in this book, I argue that it is permissible to give non-Muslims for heart reconciliation, such an action must be done at the discretion of the Islamic government, and not of individuals.

It should be added that scholars who do not allow giving zakah to people of the Pledge do not mean that the poor people of the Pledge must not be helped. Rather they believe such subsidies must come out of sources other than zakah, such as war booty, fai, and kharaj. Abu 'Ubaid quotes 'Umar bin 'Abd al Aziz's letter to his governor in al Basrah [an area in the south of Iraq], ". . . and look after the people of the Pledge. Find those of them who are elderly, weak, and those who do not earn, then give them regular salaries from the treasury in amounts sufficient for them."39 This shows that the Muslim ruler must feel responsibility toward the people of Pledge.

Scholars generally permit giving zakah to wrongdoers, as long as they maintain the faith of Islam, on humanitarian grounds and to reconcile their hearts. Zakah is collected from wrongdoers so they must be covered in the general terms of the saying " ... to be taken out of the rich among them and rendered to the poor among them."40 The only exception is that wrongdoers may not be given zakah in a form that helps them do what is condemned, such as buying alcoholic beverages. Some Malikites go as far as stating that if there is suspicion that wrongdoers may use zakah paid them for evil purposes, it must not be given to them.41 According to Zaidis, it is not permissible to give zakah to wrongdoers, unless they are workers in the zakah agency, or for the purpose of reconciliation.

I think wrongdoers who do not harm Muslims or challenge the tenets and rites of Islam may be helped with zakah. There is no doubt at all that giving the righteous poor is much better. As for transgressors who openly challenge Islamic values, zakah must not be given to them, because Muslims are ordained to establish righteousness and prevent evil, and giving such persons in no way helps prevent evil, for God says, "The believers, men and women, are protectors one of another, they enjoin what is just and forbid what is evil."43 This requires that the Muslim community must withhold its help to those who oppose its values, try to destroy its rites and openly challenge its laws. As for families of such transgressors, zakah must be given to them, if they are in need, in accordance with the verse, "No bearer of burdens can bear the burden of another."44 Ibn Taimiyah supports this view, saying, "One must search for poor and needy righteous men and women who follow the steps of Shari'ah. How can a Muslim help those who challenge Islamic values and rites by their wrongdoing or transgression?"45 He continues, "The person who does not fulfill the obligation of prayers must be advised to pray before being given zakah; if he accepts, zakah may be given to him, and if not, it may not be given."46

There are two kinds of deviant sects. The first kind are those sects which deny essential principles of Islam. Those are outside the limits of this religion and are considered disbelievers. The second kind are those sects which differ with mainstream Sunnites on certain basic issues, without exceeding the general boundaries of Islam.

Sunnites, out of their forgiving spirit toward other sects, only exclude from the benefits of zakah sects classified as disbelievers, and allow giving zakah to all Muslims regardless of any sectarian classification.47 Obviously, the more righteous in deed and creed is preferred.

In contrast, other sects are generally strict about distributing zakah only inside their own sects, Ja'fari Shi'ites quote their Imam as saying, "Do not give sadaqah and zakah but to your peers." The only exception of this rule they make is giving for reconciliation of hearts. In his Fiqh al Imam Ja'far, Mughniyah states that "zakah must only be given to individuals within the sect, while voluntary charities may be given to any person who is in need."48 In al Hada'iq, al Bahrani says a man came to Muhammad al Baqir and said, "May the mercy of God be upon you, take from me these five hundred dirhams and spend it where it belongs. It is the zakah of my wealth." Al Baqir answered, "You take it and give it to your needy and orphaned neighbors and your Muslim brethren."49 This indicates that al Baqir does not preach any discrimination and believes brotherhood in Islam is above all other considerations.

Abadis do not totally agree as to whether zakah may be given to Muslims who do not subscribe to their school of thought. Some of their jurists permit giving zakah to any poor person, as long as he is not known to differ with their view. Some even allow giving zakah to people who belong to opposing schools of thought.50 As for Zaidis, they forbid giving their zakah to certain deviating sects.

Some of our predecessors believed zakah must be given on the sole criteria of need and poverty, with no other questions asked. Ibn Abi Shaibah reports that Fudail asked Ibrahim about giving zakah to deviating people. He said, "Our ancestors asked nothing except about poverty." This is the opinion of al Mu'ayad Yahya, and al Shafi'i are reported to forbid helping individuals whose wrongdoing harms Muslims or the Islamic state, such as those who fight Muslims.51

Relatives whose relation to the zakah payer is so distant that the zakah payer is not legally responsible for providing their living expenses, may be given zakah by either the zakah payer or the government. Scholars differ on giving zakah to close relatives, such as parents, brothers, sisters, uncles and aunts of zakah payers. Zakah may be given to close relatives of zakah payers on the basis of working in the zakah agency or fighting in the way of God, because the zakah payer is not responsible for such compensations.

Zakah may also be given if the close relative is a wayfarer. Reconciliation of relatives' hearts is out of question, because such distribution can only be made by the government or public organizations, and not by individuals.

As for giving on the grounds of need and poverty, one must distinguish between distribution by government and by individual zakah payers. If the government distributes zakah, it may give close relatives of zakah payers, including their children, parents, and wives,52 since payers fulfill their obligation by delivering zakah to the state.

When payers distribute their zakah directly, they can not give it to relatives for whose provisions the zakah payers are responsible, such as parents, wives and children.

Ibn al Mundhir claims an ijma' of scholars that zakah must not be given to the parents in cases where the zakah payer is obligated to provide for their living expenses, since by giving them zakah he is saved the obligation of providing their living expenses.53 Moreover, the Messenger of God is quoted as saying, "You and your wealth belong to your father."54 and the Qur'an considers the houses of parents and their children one and the same: "It is no fault on yourselves that ye should eat in your own houses."55 The last phrase refers to houses of one's sons, since it is obvious that there is no fault in eating in one's own house."56 The Prophet (p) says, "The best food a man eats is that which is out of the man's own earning. That of his son is from his own earning too."57 Based on this Hanafites argue that ownership of property is continuous between parents and their children. Thus, paying zakah to a parent or a child is like giving it to oneself.58 Children and parents are treated as one unit in zakah distribution. There is a saying reported by al Bukhari and Ahmad from Ma'n bin Yasid that "My father gave a man in the mosque a few dinars to distribute as charity. Not knowing, I came and took them. My father said, "By God, I did not intend to give you." I complained to the Messenger of God (p), who said "O Yazid, you get the reward for your intention, and O Ma'n, you get what you obtained." This saying, according to al Shawkani, applies to voluntary charity and not to obligated zakah.58

Only Muhammad, and a report from Abu al 'Abbas (a Shi'ite) approve of giving zakah to one's parents. This is supported by a group of later Zaidis. This opinion is based on the general terms of pertinent texts and lack of authentic support for parents' exclusion.60 Additionally, Malik reportedly approves of giving zakah to grandchildren as well as to great grandparents.61 It seems that Ibn al Mundhir and the author of al Bahr, who both report ijma'62 do not believe in the authenticity of narrations from these scholars.

However, Ibn al Mundhir quotes ijma' that zakah must not be given to parents or children who are responsible for each others' living expenses. Al Nawawi argues that there are cases in which the zakah payer is not responsible for the living expenses of his parents or children.63 Ibn Taimiyah gives as an example a poor mother whose young children are rich. Her living expenses need not be charged to the children under her custody; thus, she may be given zakah from them.64

Ibn al Mundhir continues, "Scholars unanimously agree that a man must not give his wife zakah, since he is obliged to provide all her living expenses."65 A wife is so intimate to the husband as to be like himself God says "... and among His signs is this:

that He created for you mates from among yourselves"66 God referes to the husband"s house as the wife's house in the verse "and turn them not out of their houses.67

Abu Hanifah and some other jurists do not approve of this, on the grounds that wife to husband is like husband to wife. But this analogy is incorrect when applied to zakah especially since we have reports to the contrary. The reasoning behind this analogy is invalid with regard to financial support, as stated by Abu 'Ubaid, since though the husband is responsible for living expenses of his wife, rich wives are not obliged to support their poor husbands.68 Ibn Qudamah notes that since wives are not responsible for the living expenses of their husbands, they can give their zakah to their husbands, keeping in mind that giving zakah to one's wife is only prohibited to prevent the abuse of zakah by the husband, who is responsible for his wife's living expenses in addition to zakah.69

Ahmad, al Bukhari, and Muslim report from Zainab, the wife of 'Abd Allah bin Mas'ud, that "The Messenger of God (p) said, "O women, give charity, even out of your jewelry." She continues, "I went back to Abd Allah and said, 'You are an empty-handed person, and the Messenger of God (p) just ordered us to give charity. Go to him and ask him if it is acceptable for me to give you charity; otherwise I will give to someone else' 'Abd Allah said, 'You go to the Prophet'. Zainab continues, "I went, and found at the door of the Messenger of God (p) a woman from the Ansar who had a question like mine. The Messenger of God was so greatly esteemed by us that we did not like to knock at the door and disturb him . Then Bilal came out and we told him 'Tell the Messenger of God (p) there are two women at the door asking whether it is acceptable to give their sadaqah to their husbands or to spend it on orphans under their custody.

And do not mention who we are.' Bilal went in and asked the Prophet, who said, ' Who are they'? Bilal answered 'A lady from the Ansar, and Zainab. The Prophet asked 'which Zainab?' Bilal replied, 'The wife of 'Abd Allah.' Then the Prophet said 'Indeed they have two rewards. One for kindness to the kin, and one for giving charity.' "The sentence in al Bukhari"s report reads, "Is it acceptable for me to spend it on my husband and on orphans under my custody?"70

Al Shawkani says "this saying indicates it is permissible for a wife to give her zakah to her husband. This is also the opinion of al Thawri, al Shafi'i, the two disciples of Abu Hanifah, a report from Malik, and a report from Ahmad, also al Hadi, al Nasir, and al Mu'ayad bi Allah. The above saying can be a good argument if it makes a clear reference to obligatory zakah. Al Maziri claims it refers to zakah because of the words used in the saying itself, "is it acceptable". Others argue that the saying refers only to voluntary charity, especially since it uses the words "out of your jewelry." Al Shawkani remarks, "It appears that giving the wife's zakah to her husband is permissible, first because there is nothing to prohibit it, and second because in the above saying, the Prophet makes no distinction between voluntary and obligatory sadaqah.71

Giving zakah to one's brothers, sisters, uncles, aunts, and other relatives is disputed by Muslim scholars. Those who do not allow it do so on different grounds. Abu 'Ubaid reports from Ibrahim bin Abi Hafsah, "I asked Sa'id bin Jubair whether I could give my aunt zakah. He said, 'Yes, as long as she does not live with you as part of your family.'"72 Abu 'Ubaid further reports that al Hasan says. "It is all right for a person to give zakah to his relatives who are not part of his household."73 He reports 'Ata as saying that relatives who are not part of the household supported by the zakah payer have priority in receiving his zakah, if they are poor. Ibn 'Abbas says "as long as you do not give any person whom you support financially, there is no harm in giving relatives zakah". These scholars consider whether or not the recipient is part of the zakah payer's household to be the criterion for permissibility of giving zakah to relatives.74

Abu 'Ubaid reports a different view from 'Abd Allah bin Daud, whose criterion is the legal responsibility of the zakah payer to provide for relatives. If the state does not obligate the zakah payer to support a relative, zakah may be given to that relative.75

The third, most common opinion uses the criterion of the legal responsibility for financial support as set forth in Shari'ah. Zakah must not be given to anyone whose living expenses are the obligation of the payer. This is based on two points: firstly, that such a relative is in fact rich by the provision given (or that should be given) by the payer, and secondly, that the payer, by giving zakah to this relative, saves himself the additional cost of supporting that relative.76 This is the view of Malik, al Shafi'i, a report from Ahmad, Zaid bin 'Ali, al Hadi, al Qasim, al Nasir, and al Mu'ayad bi Allah although some of these scholars do not agree on the specification of those relatives whose provisions for living is the responsibility of the payer.

Zaid and Ahmad believe the criteria for financial responsibility is the same as that used in the inheritance system. A person who may inherit from a certain relative is financially responsible for that relative.77 Al Shafi'i restricts financial responsibility to parents, grandparents, children, and grandchildren only, while Malik further restricts it to children -- sons until puberty,78 and daughters until marriage-- and the father and mother; i.e. Malik excludes grandchildren and grandparents. Obviously, both Malik and al Shafi'i exclude brothers, sisters, aunts and uncles.79

Another group of scholars is more permissive about giving zakah to relatives. Some of them argue that zakah may be paid to relatives (other than parents and children) for whose living expenses the zakah payer may be responsible. These include Abu Hanifah, his disciples, and Yahya. It is the predominant report from Ahmad, according to Ibn Qudamah. Abu 'Ubaid argues that this is the most acceptable opinion, because the Prophet (p) said, "The sadaqah to the needy is merely a sadaqah, but it is both a sadaqah and a kindness to kin when it is given to relatives."80 This saying makes no distinction between obligatory and voluntary sadaqah or between relatives for whose living expenses the payer is responsible and other relatives.81 Ibn Abi Shaibah and Abu 'Ubaid say this is also the opinion of a handful of Companions and Followers.

They quote Ibn 'Abbas as saying, "A person should give his relatives zakah if they are in need," and Ibrahim as reporting, Ibn Mas'ud's wife asked him about giving the zakah of her jewelry to her orphaned nephews who were under her custody. Ibn Mas'ud answered 'yes'." Al Hasan was asked if it was permissible to give zakah to one's brother, and replied "yes indeed." Ibrahim was asked whether a woman can give her sister zakah, and replied affirmatively. Al Dahhak remarks "If you have poor relatives, they have priority over your zakah compared to other people." Mujahid adds, "One's zakah is not accepted if it is given to others while one has needy relatives."82

After surveying all these opinions, I feel that the one which allows giving zakah to all relatives except parents and children is most appropriate. This is also the opinion of Abu 'Ubaid and the majority of scholars since the era of the Companions and Followers.

This opinion is supported by:

1. The generality of texts about the poor, which make no distinction between poor relatives and non-relatives, like "The sadaqat are only for the poor and the needy and the saying ". . to be taken from the rich among them and rendered to the poor among them." These texts include relatives, and any attempt to remove relatives from the categories of zakah deservants requires an appropriate text. This is not the case with the wife, parents, and children, who are unanimously excluded from zakah.

2. Texts that encourage helping one's relatives, such as "The sadaqah given to the needy is merely a sadaqah, but that given to one's relatives has two merits: It is a sadaqah and a kindness to kin,"83 "Indeed, the best sadaqah is that given to a relative, even one who hides hatred,"84 and the saying from Ibn Mas'ud wife mentioned earlier.

The argument that in giving zakah to these relatives, the payer benefits himself, is not absolute. It indeed applies to the zakah payer's wife, children, and parents, but not to other relatives, since supporting relatives other than the wife, children, and parents, is the responsibility of the Islamic state from zakah, fai and other sources. Relatives are responsible only when the state does not fulfill its obligation . A zakah payer may support relatives other than his wife, parents and children out of his own zakah.

We should notice that Hanafite scholars make no connection between permissibility of giving zakah to relatives and financial responsibility for supporting them as determined in Shari'ah. They hold that charging the payer with the responsibility of supporting his relatives does not prevent allowing him to give them zakah, as long as what is given to them is made their own property, since there is no continuity of property between relatives other than parent and children.85 The Zaidi author of al Rawd al Nadir argues that giving the relatives zakah does not imply saving an otherwise obligatory financial support, since the obligation of support is only temporary.86

Al Shawkani adds that, in principle, giving one's zakah to relatives is permissible, since no text prevents it and the burden of proof is on anyone who claims otherwise.87

Ahmad and Muslim report that al Muttalib bin Rabi'ah (first cousin of the Prophet)

"went with al Fadl bin al Abbas to the Messenger of God (p). One of them said, 'O Messenger of God, we come to ask you to appoint us on sadaqat, so we can earn from it like other people (who are employed) and bring you what we collect like other people do.' The Prophet said, 'Indeed, the sadaqah must not be taken by Muhammad or the family of Muhammad; it is merely the impurities cleansed from peoples wealth.' "In a version mentioned in al Muntaqa, the Prophet says, ". . . is not lawful to Muhammad, nor to the family of Muhammad."88 Abu Daud and al Tirmidhi report that Abu Rafi' says, "The Messenger of God (p) appointed a man from the clan of bani Makhzum on sadaqah. The man said to me 'Come with me (to help me), and you will get some of it.' I said, 'Not until I ask the Messenger of God (p).' When I asked him, he told me 'The ex-slave of a clan is one of them, and we are a family to whom sadaqah is not lawful'." Abu Rafi' was an ex-slave of the Prophet (p). Al Bukhari reports from Abu Hurairah, "Al Hasan bin 'Ali took one date from the dates of the sadaqah and put it in his mouth.

(he was then a child). The Prophet (p) said, 'Yech, Yech!' to get him to take it out of his mouth, and continued, 'Don't you know we do not eat from the sadaqah? "Muslim's version (as stated by al Hafiz) reads "We are those to whom the sadaqah is not lawful," and in a version from Ma'mar, "Indeed the sadaqah is not lawful to the family of Muhammad." Ahmad and al Tahawi report from al Hasan bin Ali "I was with the Prophet (p). We passed by a crate of dates collected as sadaqah. I took one and put it in my mouth. The Prophet grabbed it with the saliva on it and said, "We, the family of Muhammad, the sadaqah is not lawful for us." Its chain is strong.90

These sayings indicate that zakah is not permissible to the Prophet (p) and his family and descendents . It is important to determine who consists the family of the Prophet, and whether both zakah and voluntary charity are not permissible to them.

Al Hafiz in al Fath and al Shawkani in al Nail state that there are differences among Muslim scholars on specification of the Prophet's family.91 Al Shafi'i and a group of scholars believe the family of the Prophet includes the children of Hashem and the children of al Muttalib. Hashem is the great-grandfather of the Prophet and al Muttalib is Hashem's brother. Al Shafi'i argues that the Prophet (p) included the children of al Muttalib as well as the children of Hashem in the share assigned to the Prophet kindred, and did not include any other clan. Al Shafi'i continues that this share is given in compensation for preventing them from taking sadaqah. Al Bukhari reports from Jubair bin Mut'im, "I went with 'Uthman bin 'Affan to the Prophet, and said, 'O Messenger of God, you have given the children of al Muttalib out of the one-fifth from Khaibar and did not give us. We and they are at the same level.' The Messenger of God said, 'The children of al Muttalib and the children of Hashem are one thing.'" This argument is challenged on the grounds that the children of al Muttalib were given from the share of the kindred only because of their alliance with and support of the family of the Prophet, and not as recompense for preventing them from taking sadaqah. Consequently, Abd Hanifah, Malik, and the Hadawis believe the family of the Prophet includes the children of Hashem alone. There are two reports about the view of Ahmad. One goes along with Abu Hanifah, and the other agrees with al Shafi'i.

The children of Hashem include the families of 'Ali, 'Aqil, Ja'far, al Abbas, and al Harith. Notice that the family of Abu Lahab is not included, because it is said that none of them embraced Islam during the life of the Prophet (although the author of Jami al Usul reports that his two sons, 'Utbah and Ma'tab, became Muslim the year of opening Makkah, and that the Prophet was pleased by their conversion and prayed on their behalf,) Ibn Qudamah says "We know of no dispute that to the children of Hashem, zakah is not permissible." Ibn Rislan and Abu Talib claim there is ijma on this.

According to al Tahawi, al Tabari quotes that Abu Hanifah allows paying zakah to the family of the Prophet, if they are denied the share of the kindred. A similar opinion is attributed to al Abhari , a Malikite and to some Safi'ites, as stated by the author of al Fath.

Abu Yusuf is claimed to have permitted members of the Prophet's family to receive zakah paid by other members of the same family. A similar opinion is attributed in al bahr to Zaid bin Ali, al Murtada, Abu al Abbas, and the Imamis. The same is mentioned in al Shifa' as attributed to the two children of al Hadi as well as to al Qasim. Al Shawkani contends that the saying which indicates this prohibition seems to cover all cases. Some scholars even claim that these sayings may reach the grade of al mutawatir.

This is supported by a few verses: "Say: No reward do I ask you for this except the love of those near of kin,"92 "Say: No reward do I ask of you for this, nor am I a pretender,"93

and "Of their goods take sadaqah so thou might purify and sanctify them,"94 and the saying, "The sadaqah is only the impurities of people's wealth," reported by Muslim.95

As for permitting members of the Prophet's family to take zakah from other members of the same Family, it is founded on a report that al 'Abbas said, "I told the Messenger of God, 'You have prohibited us from taking the sadaqah of people. Are the sadaqah of some of us lawful to others among us?' He replied, 'Yes: "The authenticity of this saying is controversial.

It may be useful here to quote the different schools' positions on this issue. In Majma' al Anhur, Abu Hanifah is reported to have permitted giving zakah to the children of Hashem. Muhammad, in al Athar, is quoted as saying "There are two narrations from Abu Hanifah. We hold to the one that allows giving them zakah since the prohibition is restricted to the era of the Prophet (p). "In Durr al Muntaqa, Abu Hanifah is reported to have allowed paying zakah from one member to another of the children of Hashem. He is also reported to have approved of giving them zakah in general. Al Tahawi adds "This is what we support. This is approved by al Qahastani and others."96 Ibn Taimiyah also permits giving zakah from one member to another of the children of Hashem,97 in agreement with the Ja'farite opinion.

The most restrictive opinion is that of Zaidis, who consider the prohibition of paying zakah to a member of the 'Prophet's family absolute and final, to the extent that they consider eating the flesh of a dead animal not as bad as a member of the Prophet's family taking zakah.99

Can the Prophet's family be given zakah if their share of war booty and fai' is not given to them?

This question is answered affirmatively by a few scholars. These include some Malikites, who point out that members of the Prophet's family are prevented from taking zakah partly because a share of war booty and fai' is assigned to them. Therefore, if they are not given that share and are struck by poverty, they can be given zakah. Hanafites have a similar argument, as quoted in the preceding subsection . Among Shafi'ites, Abu Sa'id al Istakhri believes the family of the Prophet may be given zakah if they are not paid their share of booty and fai'. Al Nawawi quotes al Rafi'i that Muhammad bin Yahaya (a disciple of al Ghazali) believes the same.100 Ibn Taimiyah and al Qadi Ya'qub, a Hanbalite, present similar arguments.101 This is also the view of the Ja'fari school.102

The majority of scholars believe that since the family and descendents of the Prophet (p) are not given zakah in order to honor them, their deprivation from booty is not sufficient grounds to give them zakah.103

In our times, payment of zakah to descendents of the Prophet must be permissible, since they are not given a share of booty and fai', either because the latter do not exist at all or because of arbitrary decision by rulers.

The share of the Prophet's kindred is referred to in the Qur'an several times: "And know that out of all the booty ye may acquire in war, a fifth share is assigned to God, and to the Apostle, and to near relatives, and to orphans and to the needy and to the wayfarer,"104 and "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, and the needy, and the wayfarer, in order that it may not merely make a circuit between the wealthy among you."105

Claiming that the family of the Prophet (p) is prevented from receiving zakah to honor them is not so strong an argument. It seems more reasonable that they are so prohibited because of the share they are granted in those two verses. Thus, if the compensation assigned to them does not exist, they must be able to receive zakah, especially since many scholars believe the share of the kindred, after the death of the Prophet, must be diverted to supporting fighters in the way of God, thus leaving the family and descendents of the Prophet with nothing to support them in case of need.

The opinion that permits the family of the Prophet and their descendents to receive zakah is further supported by the fact that all the sayings presented in support of their prevention do not clearly name the reason for the prevention, a shown below:

A. The refusal of the Prophet to appoint his cousins on collecting zakah was based on his desire to have the members of his family set a good example in honesty by not taking anything from the income of the state.106 The narration of al Bukhri implies this by wording, "Indeed, the sadaqah is not suitable to the family of Muhammad." This is so in order to prevent accusations and rumors of any abuse of state funds, which is perhaps why even ex-slaves of the family are prevented from taking zakah, as indicated by the saying from abu Rafi. This shows that they are not prevented from zakah because they are too honorable.

B. The saying from al Hasan that "The sadaqah is not lawful to us "is most likely a reference to the Prophet in his capacity as the head of state. 'Umar understood that, as a head of the state, he must not take anything out of zakah. Once, he drank some milk but when he realized it belonged to the sadaqah, he threw it up.108 The author of al Bahr argues that the sadaqah is not lawful to the ruler and his family, since the Prophet prohibited it to his family.109

C. We must reconsider the texts about this issue. The term that appears in the sayings is "al Muhammad", which literally means the family or the people of Muhammad. By what authority can anyone claim that this word must include descendents of Muhammad and his relatives through the centuries?

The word al is used in several other verses, such as "God did choose Adam and Noah, al (the family) of Ibrahim , and a1 (the family) 'Imran above all people,"110 "then al (the people) of Pharoah picked him up,"111 "and drowned al (the people) of Pharoah."112 This word has nothing to do with their descendents. All it means in these usages is the close family: wives, children, and all those closely associated by bond of family relation. There is nothing in the saying that allows us to include their descendents in all centuries to come; hence arises the opinion of Abu Hanifah that this prevention only applies to the Prophet's family during his lifetime and ceases after his death. This is also a view attributed to Malik, according to the author of al Bahr.113 Two points must be kept in mind. Firstly, Islamic laws do not discriminate between the members of the Prophet's family and others. The Prophet (p) himself says "By God, if Fatima, daughter of Muhammad, stole, I would cut her hand,"114 and "He whose deeds make him slow, [in his path towards God] his family relation does not make him progress faster."115

Secondly, zakah is a basic obligation and a determined right, collected by the state and distributed to defined deservants. Why then should some people be excluded from being its deservants?

Finally, we must remember that there is no ijma' on preventing the descendents of the Prophet from receiving zakah since Abu Hanifah, some Malikites , and some Shafi'ites disagree. Thus, one can rightly represent that all that is indicated by the sayings is that the Prophet and members of his family are prevented from zakah, in order to purify them from suspicion of abuse of zakah proceeds at a time when the legislation of Shari'ah was still being formed. Al Dahlawi adds "this was a very good move on the part of the Prophet, one which nipped in the bud any attempt to accuse him of financial abuse."116

If a zakah payer gives his zakah to a person whom he thought was a deservant then finds that he was incorrect, does that payment fulfill the payer's obligation of zakah?

There are three major opinions on this matter. The first is that such distribution fulfills the obligation of zakah. This is the opinion of Abu Hanifah, Muhammad, al Hasan., and Abu 'Ubaid. This view implies that no other payment is required from the zakah payer, and is founded on a few sayings of the Prophet: Al Bukhari and Ahmad report from Ma'n bin Yazid, "My father put a few dinars as a sadaqah with a man in the mosque [to give them away]. Not knowing, I came by and took them. My father said, 'By God, I did not intend to give you.' I complained to the Prophet, who said, "O Yazid, you get the intention and O Ma'n you get what you have taken.'" This saying does not make any distinction between voluntary and obligatory sadaqah, Abu Hurairah narrates that the Prophet (p) said, "A man once said,117 Surely I am going to give a charity tonight.' He went out with his sadaqah and put it in the hands of a thief, [not knowing).

The next morning, it was rumored that a thief was given sadaqah the night before, The man said, 'My Lord, praise be only to you, indeed I shall give another sadaqah.' He went out with the sadaqah and put it in the hands of a prostitute. The next morning it was circulated that a prostitute was given sadaqah. The man said to himself "My Lord praise is due to You alone. Surely I will give sadaqah." He went out with the new sadaqah and put it in the hands of a rich man. The next morning, people were saying that a rich was given sadaqah the night before. The man said, 'My Lord, praise be to You. Should I be giving to a prostitute, a thief, and a rich man! While asleep, he was told, 'As for your sadaqah to the thief, it may help him be satisfied and cease stealing; as for the prostitute, she may take the sadaqah and quit prostitution, and as for the rich man, he may take the lesson and start spending out of what God has given him.'"118

There is also the saying in which the Prophet (p) told a man who asked him for charity, "If you are among those categories of deservats, I would give you your right," and the Prophet's answer to the two strong and capable men who asked him for sadaqah, if you wish, I would give you out of it, but the rich and the capable of earning have no share in it." If the condition was truly richness, he would have investigated their case and not merely accepted their claim.119

The second opinion inclines toward the other extreme, and considers that if an error of judgement results in giving zakah to a person who is not a deservant , the zakah obligation is not fulfilled, and another amount must be given. Al Shafi'i subscribes generally to this view,120 while we have two reports about the view of Ahmad on mistakenly giving zakah to a rich man, one similar to that of al Shafi'i. As for giving zakah to a disbeliever or a member of the Prophet's family, Ahmad firmly believes such payment does not fulfill the requirement of zakah.

The third opinion covers the area between these two extremes. There are several sub-views in this area according to the conditions of distribution, as will be detailed in the following.

According to Hanafites, if the payer makes reasonable effort and research to find deservants, and then finds he paid zakah to non-deservants, such a payment is acceptable and the payer is not required to repeat his payment. However, when zakah is distributed without proper investigation, such payment is not acceptable if it is found that it was given to non-deservants. When payment is given to unbelievers, Abu Yusuf believes the zakah payer is required to make a second payment, even if zakah was distributed after proper investigation.122

According to Malikites, payment to non-deservants as a result of error in judgement does not relieve the zakah payer from his responsibility, and a second payment must be made unless what is given to non-deservants can be retrieved and redistributed to deservants.123

Zaidis believe giving zakah to persons considered unanimously non-deserving, by mistake, does not fulfill the obligation of zakah. Individuals who are unanimously treated as non-deservants are unbelievers, parents and offsprings of the payers, and the rich. If a person gives his zakah to individuals to whom he believes zakah can be given, another payment is not required.124

Finally, in my opinion, if a zakah payer makes sufficient efforts and research to find deservants but makes a mistake and gives his zakah to non-deservants by error of judgement, he is not responsible for that mistake, nor is he required to repeat the payment. God says, "On no soul does God place a burden greater than it can bear,"125

and God would not suffer the reward of such a person to be lost, exactly like the person mentioned in the saying who gave his sadaqah to a thief, a prostitute, and a rich person.

However, if the zakah payer did not make reasonable research, he must be charged for the result of his mistake in judgement. In all cases, whoever takes zakah knowing he is not a deservant must return it or at least give it to a deservant. Otherwise, what he takes is unlawful. If the zakah agency makes a mistake in giving zakah non-deservants, the zakah authority is not required to repeat the payment. Rather, the law enforcement body must be used to recover what was unjustly given, as recommended by Malikites.