Fiqh Al Zakah by Dr. Yusuf al Qardawi

Several theories explain the legal foundation of taxes. The first is the contractual theory. This is adopted by many philosophers of the eighteenth century, who argue that the tax is based on a contractual relationship between the state and the individual, whereby taxes are paid in exchange for services provided by the state, such as security and other public services. This is founded on Jean Jacques Rousseau's theory of social contract. According to Mirabo, the tax is a price paid in advance by the individual for the community's protection, like in a sales contract. According to Adam Smith, the contract is like a rental one, whereby the state provides individuals with services and they pay rent for them, while Montesquieu and Hobbs argue that it is like an insurance contract, whereby the tax is a premium paid by the individual to insure protection of the rest of his wealth.

Critics of this theory believe it is ill-founded, since there is no way of realizing justice in any exchange between taxes and benefits received by the taxpayer, since it is impossible to estimate the exact benefit each citizen receives from the public expenditure on security, law enforcement, judiciary system, education, and national defense. Even if it were possible to measure the benefits received by each individual, this theory leads to the unjust conclusion that the poor, who usually need more of the state's services, must carry the largest burden of state finance. The "insurance" relationship is further criticized because it restricts the role of the state to security and protection only, and is an incomplete insurance since an insured normally compensates the insured for losses incurred, while the state does not give compensation for loss of property.

The second theory is that of state sovereignty. This theory explains taxes by the authority of the state as the sovereign body, which has the right to distribute the burden of taxes according to the principle of solidarity of all members of society, regardless of any benefits they receive from the state's services.1

There are several theories that attempt to explain the theoretical foundation for zakah. Four theories are discussed in this chapter: the theory of obligation, the theory of vice-generency, the theory of mutual solidarity, and the theory of brotherhood.

Supporters of this theory explain zakah the same way other obligations are explained, i.e. that God, who is the Greater and Provider, has the right to charge his servants with an obligation in thankfulness to Him, and to test them so the wrongdoer can be distinguished from the doer of good. Human beings are not created in vain, nor are they left to be lost in nothingness, God says, "Did ye then think that we have created you a jest, and that ye would not be brought back to us?"2 "Does man think that he will be left purposeless?"3 Human beings are not left without a role and message . God sends messengers and prophets to guide, to warn, and to inform human beings of the commandments of God and the obligations He ordains, "so that He rewards those who do evil according to their deeds, and He rewards those who do good with what is best."4

The same way God ordains the performance of payers five times every day and night, fasting one month every year and pilgrimage once in a lifetime, so that man can glorify the Creator and honor His rites, this same way God obligates the payment of zakah as a financial worship, whereby humans spend out of their dear assets in expression of thankfulness to God and in search of His pleasure, God says "And those saved from the covetousness of their own souls, they are the ones who achieve success."5

The basic element in this theory is that all goods belong, in fact, to God. Human beings are only vicegerents; God is the true owner of everything. "Yea, to God belongs all that is in the heavens and on earth."6 "To Him belongs what is in the heavens and on earth and all between them and all beneath the soil."7 No one, whatsoever has any share in this. "Say, call upon others whom ye fancy besides God. They have no power not the weight of an atom in the heavens or on earth. No sort of share have they therein, nor is any of them a helper to God."8 "God is the Creator of all things, and He is the Guardian and Disposer of all affairs.9 "It is He who created all things and ordered them in due proportion."10 Those on whom beside God ye call cannot create even a fly if they all together for that purpose."11

God is the Bestower and the Giver of all things. What humans make and produce is in fact owned by God, along with man himself. Production, according to economists, utilizes already existing materials, changes the mixture of materials and their proportions.12 God says, "Our Lord is He who gave to each thing its form and nature, and further gave it guidance."13 "It is God who hath created the heavens and the earth, and sends down rain from the skies and with it bringeth out fruits wherewith to feed you. It is He who has made the ships subject to you, that they may sail through the sea by His command, and the rivers has He made subject to you. And He has made subject Zakah and Taxes 259

to you the sun and the moon, both dilegently pursuing their courses, and the night and the day hath, He also made subject to you. And He giveth you of all that ye ask for, but if ye count the favors of God, never will ye be able to number them."14 Even in production, it is God who created the laws of mixing materials together and changing their characteristics. God made these laws to humans and He provides human beings with the ability to understand and use them for their benefit. Regarding God's grace to humans in agriculture, He 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'. See ye the water which ye drink? Do ye bring it down from the cloud or do we? Were it our will We could make it salt and unpalatable. Then why do ye not give thanks? See ye the fire which ye kindle? Is it ye who grow the tree which feeds the fire or do We grow it?"15 "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 grains and nutritious plants."16 God creats the raw materials used in trade and manufacturing. God says, "And we sent dow iron in which is material for mighty wars as well as many benefits for mankind."17 "It was We who taught him the making of coats of mail for your benefit, to guard you from each others' violence. Will ye then be grateful?"18

In conclusion, all goods belong to God, and He makes them subject to humans out of His glorified grace. "And ye have no good thing but is from God,"19 Therefore it is no surprise that human beings - the vicegerents - should spend out of these bestowed goods for purposes that God wants, and to make God's word the highest. This is the least expression of gratitude and thankfulness. God says "Spend out of the bounties We have provided for you"20 "Yea, give them something out of the wealth which God has given to you."21 "and spend out of the (goods) whereof He has made you vicegerents."22

Humans are not in fact the owners of goods and assets, but only vicegerents.23 Al Zamakhshari, explains the verse ' and spend out of that which God gave you control of "to mean that 'the goods and funds that are in your hands belong in the true sense to God, who created them. He gives them to us and authorizes as to enjoy using them.

Thus they are not our goods; we are only vicegerents and representatives. We must spend out of these goods for payments of rights due to God. Spending must not be difficult for us, since we ore not doing it out of our own wealth."24 Moreover, the fact that goods and all creatures are owned by God implies one more thing, that is, the representatives must spend in accordance with the will of the Owner. Muslim scholars express this idea very eloquently. Al Razi says, "The poor are dependent on God, and the rich are God's treasurers, since the wealth in their hands belongs to God. It is expected that the Owner would order His treasurers to spend some of the wealth in the treasury for the needy who are the Owner's dependents."25 Ibn al 'Arabi says, "God, glorified be His absolute wisdom and praised be His commandments, gives wealth to some people out of grace and mercy to them. He makes the sign of gratitude for this grace to spend a portion for those who have not, in representation of God, who guarantees the poor their living when He says, 'There is no moving creature on earth but its sustenance depends on, and is guaranteed by, God,'26 If the rich do not fulfill the will of the Owner out of miserliness and selfishness, they deserve the Owner's wrath and anger."27 Many laymen in Muslim countries attribute to God the saying that 'Wealth is mine, the poor are My dependents, and the rich are My agents. If My agents treat with miserliness My dependents, I surely will make them taste My wrath without hesitation."28 Although there is no authenticity to these words, the idea they express is undoubtedly correct its popularity among Muslim masses indicates that this concept of vicegerency is deep in the conscience of Muslims. Amazingly, beggars throughout Muslims lands, when asking people for donations, repeat, "Out of the wealth of God." Lastly, there is a saying that reads "Woe to the rich from the poor on the Day of Resurrection. The latter will say, 'our Lord, they oppressed us, depriving us of our right that you ordained on them for us.' God will say, 'By My might and highness, I shall indeed made you close to me and make them far away from me'"29

Human beings are social creatures. This is known to sociologists as much as it is known to Muslim scholars. Even in the procuring of wealth and income by every individual, there is a great contribution of society. Consequently, private wealth must have a facet that is part of the society's wealth at the same time, God addresses the Muslim community, "To those weak of understanding make not over your property which God hath made a means of support for you."30 This verse indicates that property and wealth belong to society as much as to individuals, to the extent that Muslim jurists deduct that abusers of their private wealth must be prevented from practicing control over their assets, since wealth belongs to the whole society as well. Notably, the verse says, "your property" and not "their" property. Moreover, in another verse, this meaning is more explicit. God says "O ye who believe, eat not your property among yourselves in vanities, but let there be amongst you profit and trade and mutual goodwill. Nor kill or despoil yourselves, for verily God hath been to you most merciful."31 It must be noted that the verse forbids eating each others' property in vanity, although it expresses it as "your property".

The Muslim society and community is based on mutual solidarity and mutual support.This applies to wealth as well as persons. Eating up in vanities somebody's property is like eating society's wealth and transgressing against someone's right is like transgressing against the whole society, on the same principle "That if anyone slew a person -- unless it be for murder or for spreading mischief in the land - it would be as if he slew a whole people , and if anyone saved a life of a person, it would be as if he saved the life of a whole people."32 Commenting on the verse, "Eat not up your property among yourselves in vanity," the late Rashid Rida says, "This expression establishes an essential principle of the Islamic system: the principle that the whole society shares in the property of individuals - in the right sense. Socialists today aim at a just principle of sharing, but they can not realize it and they shall never realize it as long as they continue their search outside Islam. Islam considers the private property of each individual Muslim a property that belongs to the whole society, yet without any violation of the rights of private ownership. Each individual is obligated to contribute to the public interests whether the person is rich or not. Above all these decreed rights on private assets to the benefit of the whole society, Islam urges the wealthy to continuously contribute through righteous and benevolent deeds to the welfare of fellow Muslims and the welfare of the community is a whole."33

In conclusion, the Muslim community has a certain right on each private property.

This right does not deprive the individual of ownership, but takes a share of individual wealth for fulfilling the interests of the whole community. The society, as represented by its state, has a share in the assets of each rich person, a share which must be paid in order to preserve the social structure, promote the message of Islam, and defend fellow Muslims. Even if there are no poor and needy in a Muslim community, the rich must still contribute their zakah to finance such public services as promotion of faith and "the way of God," which is a continuous and permanent object of public expenditures.

Brotherhood, the fourth explanation for the obligation of zakah, is rooted deeper in the heart then solidarity and is more influential since solidarity is a mutual exchange while brotherhood implies selfless giving and sacrifice. Brotherhood is a spiritual feeling directly derived from the common humanity of men and women. It requires extending any help within one's power to one's brother, and loving for one's brother what one loves for oneself.

There are two degrees of brotherhood, one based on the common human bond and the other on the common faith. All human beings -- regardless of color, ethnicity, language, social status, and religion -- spring from one source, one single origin as children of Adam and Eve. God in the Qur'an calls humans "O children of Adam"34 or "O humanity."35 Human relations like mercy and brotherhood exist among people. This is emphasized in the Qur'an in more than one place: "O mankind, reverence your guardian Lord who created you from a single person, created of like nature his mate, and from them twain scattered like seeds countless men and women; reverence God, through whom ye demand your mutual rights, and reverence the wombs that bore you, for God ever watches over you."36 The word "wombs" is a reminder that all mankind came from one single soul and are all related in this human brotherhood. The Prophet (p)

emphasizes this when he says, "And be all, O servants of God, brothers."37 Human brotherhood is one of the principles in the creed of this faith. Islam calls upon men and women to believe in this human brotherhood and practice it in their lives. The Messenger (p) used to say after regular prayers, "My Lord, Our Lord, and the Lord and Owner of everything, I am a witness that you are the Diety, alone; You have no partner, My Lord, our God, and the God and Owner of everything, I am a witness that Muhammad is Your servant and Your messenger. My Lord, our Lord, and the Lord and Owner of everything, I am a witness that all servants of God are brothers."38 This brotherhood of all human beings has many implications; among them is that no human being must be submerged in selfish enjoyment of the goods God created while others suffer. It implies that each must share with fellow humans the grace God bestows on all humanity.

Above this degree of brotherhood is another deeper and stronger degree, brotherhood in faith. Those who share together belief in this religion, in God as the only Lord of the worlds, have indissoluble spiritual and social bonds. Brotherhood in Islam is much stronger than any blood relation. God says, "Believers are one single brotherhood."39

The spiritual brotherhood of all persons who share faith together also has important implications regarding support, aid, and sharing the material goods God created.

Brotherhood among the faithful is further strengthened when they live in one society and one land. It is known in Shari'ah that the lands of all Muslims are one single country for all of them, and that all Muslims are members of one united society. The Messenger of God (p) explains the rights implicated by this brotherhood in several of his sayings: "A believer to a fellow believer is like one single structure whose parts are bonded together."40 The parable of the faithful in their mutual love and mercy is like one single body: If one of its members aches, the other members respond with faver and insomnia."41 and "The Muslim is a brother to the fellow Muslim, He does not do injustice to him nor does let him down."42 He who leaves his brother hungry or naked while he is able to clothe or feed him is undoubtedly letting his brother down. The prophet (p) says, "He does not believe in me who goes to sleep with a full stomach while he knows that his neighbor, by his side, is hungry."43