Fiqh Al Zakah by Dr. Yusuf al Qardawi

Zakah is levied for particular purposes, decreed by God, on the wealth of Muslims, and is collected and distributed by the Islamic state. In the Islamic state permitted to impose other taxes in addition to zakah? Or, is zakah the only duty on the wealth of Muslims? A duty that must not co-exist with other taxes. We will study in the following three sections the evidence that allows imposing taxes in addition to zakah, the necessary conditions for levying such taxes, and the objections raised by opponents.

1. Social solidarity is a must There is no need to repeat talking about the importance of social solidarity between members of the Muslim society, discussed in previous chapters. However, solidarity and brotherhood of Muslims, that are the foundations for zakah itself, also lay the grounds for imposing other taxes when the need arises.

2. Distribution of zakah is pre-determined Since zakah can only be expended to the eight categories described in part four of this book. Muslim scholars argue that zakah must have an autonomous budget. Abu Yusuf, for example, says "The proceeds of kharaj must not be added to the proceeds of sadaqat, since kharaj is to serve all Muslims while zakah must only serve the categories named by God."1 Scholars usually agree that "Zakah must not be spent on building bridges, highways, canals, mosques, schools, etc."2

Fiqh al Zakah (Vol. II), Dr. Yusuf al Qardawi 298

No one can argue with the fact that services for which zakah cannot be appropriated include certain public necsseities, like schools and mosques, and these require financial resources. If the proceeds of kharaj, ghanimah, and fai' are sufficient, there is no need for imposing taxes, but if such sources do not exist or do not yield sufficient amount, other taxes need to be levied, since the rule of usul states, "That without which an obligation cannot be fulfilled is also obligatory." We have seen earlier in this book that Shafi'ites do not allow payment of zakah to the regular army, and restrict payment to voluntary fighters. When al Nawawi was faced with the problem of insufficiency of other resources to finance the regular army, he suggested, as do many other Shafi'ites, that rich Muslims be obligated to finance the regular army.3

3. General rules in Shari'ah The permissibility of imposing taxes besides zakah does not only depend on the above mentioned rule stating, "That without which an obligation cannot be fulfilled is obligatory." The general rules and principles of Shari'ah allow the levy of taxes when need arises. Principles which imply such possibility include the state's responsibility to care for the public interests of Muslims, the rules that "avoiding evil has priority over bringing benefits" and "small benefit can be sacrificed for the great benefit," and " individual harm may be tolerated in order to prevent common harm."4

Undoubtedly, application of these general rules leaves room for imposing taxes. In fact it may be deducted from these rules that texts, on certain occasions, must be imposed to secure important interests of society and state, and to prevent harm and danger. If a contemporary Islamic state, that does not have huge mineral resources, is left without taxes, it is bound to be wiped out in a very short time because of lack of internal services, let alone outside military dangers. For such reasons derived from Shari'ah principles, Muslim scholars opine that financing the public treasury with taxes imposed by the Islamic government is obligatory when there is need to prevent a danger or fulfill an important benefit.

Al Ghazali, a Shafi'ite known for his restrictive views, when it comes to public funds, says, "when there are no funds and the state income is not sufficient to pay for army needs, and there is danger that an enemy may transgress against the Muslim land or that evil rebels may arise, the Islamic government is allowed to impose on the rich taxes sufficient to pay for the soldiers, since we know the rule that when one must choose between two evils or two harms, the most dangerous of them must be avoided.

Every sacrifice made by the rich including the sacrifice of lives and wealth, is a lesser harm than lack of means to defend the Islamic society against aggression or sinful rebellion."5 Al Shatibi, a Malikite, says, If we happen to have an Islamic government that needs to increase the number of its soldiers in order to defend Muslim borders and lands and the treasury is empty, the leader, provided he is just, has the right to impose on the rich what is sufficient to fulfill defense needs, until the treasury has funds again. The government has the right to make these impositions on agriculture or other products. The reason no such opinion is reported from the scholars of the early generations is the abundance of treasury funds during their times. If the Islamic government does not impose such taxes, its strength would vanish and our country would be exposed to unbelievers' aggressions. The backbone of the government and defense is the army. Those who evade the payment of levied taxes would realize that if the army were abolished, they will be hurt personally and all their wealth, not only a part of it, would be confiscated by the aggressors if such enormous harm is contrasted with the harm of tax payment, no one can argue that the latter is much lesser.6

4. Jihad and its financial requirements Islam prescribes jihad on both persons and their wealth. God says, "Go ye forth (whether equiped) lightly or heavily, and strive and struggle with your wealth and your persons,"7 "Only those true believers who have believed in God and His Apostle and have never since doubted but have striven with their wealth and their persons in the cause of God, such are the sincere ones,"8 "That ye believe in God and His Apostle and that ye strive (your utmost) in the cause of God with your wealth and your persons,"9

"And spend of your substance in the cause of God, and make not your own hands contribute to your destruction."10 All these verses ordain spending of wealth and property in the way of God. Jihad in wealth is an obligation in itself, like the obligation of zakah. The Islamic government has the right to determine the share of each person in this financial jihad. This is also the essence of a quotation by Ibn Taimiyah from the author of Ghiyath al Umam.

Armament and army expenditures today are huge. in addition to the fact that the might of a nation is not only measured by the size of its army. National strength requires superiority in several areas, including scientific research, industry, and the general economy. All these require abundant financial resources which cannot be secured except by imposing taxes. These taxes are a form of jihad in wealth whereby all individuals contribute to the strength and defense of their state. Such contributions pay back in the form of protection for the individual himself, his religion, and his assets.

5. Sharing the burdens as the gains are shared Resources collected in the form of taxes are spent on public services which benefit all members of the society, such as defense and security, judicial institutions, education, health services, transportation, irrigation, etc. Each individual benefits from the presence and power of the state as well as from the services it provides. Thus each must share the financial burden that allows these services to be performed. Just as each individual benefits from the state's services and its presence, he or she is required to pay the necessary taxes, in application of the principle that gains must be comparable to sacrifices.

There art four conditions for imposing taxes: True need, just distribution, lawful use of funds, and approval of the shura body of the state.

There should be real need for the services to be financed by additional financial resources as well as inadequacy of treasury funds and other state resources.

In principle, private wealth is protected and should not be charged any duties above zakah. It is unlawful to violate this rule except in dire need. If such necessity does not exist or if the government has other financial resources, it is not lawful to impose taxes.

Leading scholars have emphasized this condition for centuries. Some go as far as requiring that the treasury be completely empty, in order to deter rulers from imposing taxes without need. Islamic history reveals several instances in which Muslim scholars stood fast confronting rulers who wanted to impose taxes while they still had other resources.

When Sultan Qutuz of Egypt was preparing his troops to fight the Moguls, who by then had occupied most of Syria, he gathered all scholars, jurists and judges to consult with them on whether he could impose taxes for jihad. Among them were Izz al Din bin 'Abd al Salam and Badr al Din al Sinjari. After discussion, the opinion leaders agreed that Izz al Din speak for them. He said, If the enemy transgresses on the lands of Islam, all Muslim are obligated to fight. It is then permissible for you to collect taxes from people in the amount that helps you in this jihad, provided there be nothing in the public treasury and that you sell all gold ornamented clothes and all fancy tools and utensils that you and your courtiers and soldiers own, so that each person in the army has only a mare and a weapon, and all become equal to the common people. As for collecting funds from the public while your men and soldiers still have assets and luxurious things-no, it is not permissible." A similar stand was taken later by al Nawawi before Sultan al Zaher Bibars. When the sultan wanted to fight the Tatar in Syria, he had insufficient funds in his treasury, so he asked scholars in Syria whether he could impose taxes to help the government and the army fight the enemies of Islam. All the present scholars approved and wrote their approval to the king. Al Nawawi was then absent, and the Sultan asked if there were any scholars who did not respond to his appeal. They said, "Yes, there is al Nawawi." When he came, the Sultan asked him to add his approval to those of others, but al Nawawi refused. When asked for a reason, he said, "I know that you were a slave of the previous ruler, Bandaqdar. Then you owned nothing, and God generously gave you and made you a king. I hear that you own one thousand slaves, and each of them has a gold ornamented garment, that you also own 200 female slaves, and each of them has a basket of jewelry. If you spend all that, and your slaves live with woolen garments only, and your slave women keep only their clothes, without any jewelry, after that I approve of your collecting taxes from people." The Sultan was angered and ordered al Nawawi out of the city. Al Nawawi obeyed and went out to his village, Nawa [about fifty miles south of Damascus]. When some other scholars negotiated for his return and the Sultan permitted it, al Nawawi refused and announced, "I will not go to Damascus as long as al Zaher Bibars is there," but the king died after a month.12 al Nawawi wrote al Zaher a letter explaining, "It is not lawful to collect anything from people as long as the treasury has wealth in any form, money, property, land, or anything that can be sold. All scholars agree to this. And the treasury now, praise be to God, has much property and goods, may God always increase it."13

The burden of taxes must be distributed justly among people, so that none is ever-burdened while others are exempted without reasonable cause. Justice does not require equality among taxpayers, since treating equally what is different is as unjust as treating differently what is equal. There must be objective criteria for distributing the tax burden among the rich members of society.

Abu 'Ubaid reports from Ibn 'Umar that 'Umar used to collect from the Nabatites [foreign merchants who used to bring goods into the country] half a tenth on oil and wheat, to encourage them to bring more of these goods to Madinah, and one tenth on beans."14 It is known that the general principle of this tax laid by 'Umar was to collect one-tenth from foreign merchants, one-half of a tenth from merchants who were people of the Pledge, and one-fourth of a tenth from Muslim merchants,13 as reported by Anas and by al Sa'ib bin Yazid, who says, I was a commissioner to the Madinah market during 'Umar's time, and we used to collect one-tenth from the Nabatites."17

But with regard to oil and wheat, 'Umar apparently reduced the tax to five percent for an important economic reason, i.e. encouraging food imports that were required in the fast growing Madinah, capital of the state. This action of 'Umar indicates that tax rates may be changed according to the economic target they aim at achieving, whether in trade, import and export, industry, or agriculture.

Furthermore, since one objective of the Islamic economic system is to reduce economic differences between Muslims and decentralize wealth accumulation so that wealth and income do not circulate among the rich alone, if there are no other means except progressive taxes to achieve such a purpose, such taxes can be blessed and supported by the Islamic system. One must not forget that the personal aspects of taxes must be taken into consideration. These include the exemption of living expenses, family provisions, and debts from taxes, as mentioned earlier.

Tax collection is aimed only at serving the nation. Thus tax proceeds must not be used for the whims and desires of the rulers and their inner circles, or to fulfill dictatorial purposes or individual ambitions. God establishes this principle when He details zakah distribution, not leaving it to be determined by any ruler, not even a Prophet. The Wise Successors, along with the great Companions, were extremely strict about the dispersement of public funds. Ibn Sa'd in his Tabaqat reports from Salman that 'Umar bin al Khattab once asked "Am I a king or a caliph?" Salman answered, "If you collect one single dirham from the Muslim land, or less, or more, and spend it on anything other than its right and proper dispersement, then you are a king and not a khalifah."Umar, hearing this, wept"18 Sufyan bin Abi al 'Awja' says, "Umar bin al Khattab once asked 'By God, I am not sure, am I a khalifah or a king? If I am a king, this is indeed an awful thing,' A man answered, 'O Prince of Believers, there is indeed a big difference between them.' 'Umar asked, 'What?' The man said, 'The khalifah does not take but what is right and does not spend it except on what is right. You, praise be to God, are of that kind. Kings oppress arbitrarily. They take from this and give to that.' 'Umar remained silent."18 Al Tabari reports, "A man who was a relative of 'Umar, asked Umar for some grant. 'Umar turned him down and asked him out. Then someone spoke to 'Umar about him, 'O Prince of Believers, so-and-so asked you but you turned him down and ordered him out.' 'Umar answered, He indeed asked me to give him from the property of God [meaning the property of the society and state]. If I do so, what would be the excuse? Then I would meet God as a betraying king!'"19

Since private property is protected by Islamic law, any levy on individuals must be approved by the consultative body of the state. It is not sufficient that the ruler alone or his administrative commissioners make such a decision. Shura consultation is required by Qur'an and Sunnah. God commends ". . . those who hearken to their Lord and establish prayer, who conduct their affairs by mutual consultation, and who spend out of what We bestow on them for sustenance."20 Shura is associated with accepting the message of God, establishing prayer, and spending for His sake. This verse establishes the essential principles of the Islamic system as early as the Makkan period. Later in Madinah, God sent down the verse, "And consult them in affairs, then when thou hast taken a decision, put thy trust in God."21 Revealed in Madinah, in the era when details of Islamic law and life were laid down, this verse gave the general foundations for the government structure of this society. This verse was revealed just after the battle of Uhud, before which the Prophet had consulted his Companions on whether to stay in Madinah and let the enemy reach there, or to go out and fight the invaders outside the city limits. The bulk of Companions wanted to go out, while the Prophet's opinion was to stay in Madinah and fortify it, but following the majority, he went out and the result was a defeat, about 70 great Companions were killed. Even despite that, the verse reaffirmed that consultation is an essential part of the Islamic system, as if to say: You must continue to consult them and make your decisions by consultation, even after what happened as a result of following the majority's opinion.

The Prophet used to consult his Companions on all matters of substance whenever he was not given clear revelation from God about the matter. At the time of Badr, the first battle in Islam, the Prophet asked the opinion of both the Muhajirin and Ansar on whether they should seek out the Quraish caravan and where to camp in that battle. In the battle of Uhud as well, he based his decisions on consultation. At the battle of al Ahzab, the Prophet (p), wanted to accept the peace treaty offered by the unbelievers, which required that he give them one third of the produce of Madinah, but leading Companions did not accept, so he refused that offer. On the day of al Hudaibiyah, he based his decision to hold back the weapons from fighting on consultation, for he was told by Abu Bakr, "We did not come here to fight, we came only to visit the house of God." When his wife ''A'ishah was accused, he also consulted Muslims, saying, "O Muslims, give me your opinion, what should I do with those who accuse my wife?" and consulted 'Ali and Usamah on how to deal with ''A'ishah.22 Ibn Kathir comments "The Prophet (p) used to consult the Companions on battles and for other decisions. Jurists dispute whether this was obligatory for him or only recommended (by God) in order to keep them happy."23

If this can be disputed when it comes to the Messenger (p) who is guided by God and His revelation, it cannot be disputed with respect to other leaders who are simply elected men. The verse explicitly ordains consultation, and ordinances mean obligations.

Add to that the keenness of the Prophet (p) to implement this verse in all important matters. All this makes consultation obligatory for leaders especially in view of the Islamic nation's historical experience of suffering from tyrants and dictators.

The answer is certainly affirmative, on the grounds that the Prophet used to accept the opinion of the majority of his Companions after consultation. Ibn Kathir mentions that Ibn Mardawaih reports that 'Ali says, "The Messenger of God (p) was asked about the meaning of the verse, 'Then when thou hast taken a decision . . .' and he answered that it meant 'consult people of opinion and then follow them."24 If the majority's decision based on consultation (shura) is not binding on the government, shura looses its meaning. This makes a mockery of consultation, whereby rulers consult people and then do what they want, regardless of the majority opinion.

Moreover, Muslims can make shura always indisputably binding by legislation, i.e.

incorporating such a clause in the constitution, whereby the leader is elected on the condition that the majority's view shall be binding on the government and the head of state. The Prophet (p) says Muslims are bound by their contractual conditions."25 Honest fulfillment of such conditions are binding on the government, without the slightest doubt, regardless of jurist opinions on whether shura, when unassociated with such conditions, is only informative or is binding.

The verses do not specify on what affaire shura is required. No doubt the words "matters" or "affairs" in the verse are general and include all affairs, yet the most important are those affairs that affect the Muslim society and its future. Certainly, taxes are of such importance as to require consultation.

Some scholars believe it is unlawful to impose any taxes besides zakah. They use three main arguments to support their views: First, the rule that nothing is obligated on wealth except zakah is commonly know among jurists. Second, private property is protected and any charge on it must be supported by a text. The Prophet says, "He who is killed while defending his wealth is a martyr."26 It is, therefore, unlawful to take any part of Muslims' private property without their consent. Third, several sayings discredit levies on people and prohibit the collection of tenth ['ushr], such as the following:

Abu al Khair says "Maslamh bin Mukhlid, who was governor of Egypt, offered Ruwaifi' bin Thabit the position of 'ushr commissioner. Ruwaifi' refused, saying, "I heard the Messenger of God (p) say, 'Levy collectors are in the Fire.'"27 'Uqbah bin 'Amir says he heard the Messenger of God (p) say, "Levy collectors do not enter Heaven."28 Although these two sayings are criticized by hadith critics, they are supported by a saying reported by Muslim at the end of a story about a married woman who committed adultery and was stoned. The Prophet said, "She made such sincere repentance that if similar repentance was made by a levy collector, he certainly would be forgiven." This shows that the sin of levy collectors is in fact more severe than that of the woman who committed adultery. This is further supported by several sayings that censure 'ushr collectors. Although none of these sayings reach the level of good or correct, they support each other: Al Tabarani in his al Mu'jam al Kabir reports from 'Uthman bin Abi al 'As that the Prophet (p) says, "God descends close to his creatures and forgives anyone who asks forgiveness, except a prostitute [who earns] by her body, and a 'ushr collector."29 Ibn al Athir in his al Nihayah explains that an 'ushr collector is a tax collector.30 Al Bighawi adds, "A tax collector is the officer who collects from merchants who pass by him a tax called 'ushr."31 Al Mundhiri adds, "Nowadays, they collect a tax named 'ushr, in addition to other nameless taxes that they take unlawfully.

It is like they eat fire in their stomachs. They shall have no justification when they meet their Lord, may the wrath of God be upon them, and indeed they will be severely punished."32 Al Munawi says "the tax collector is the 'ushr collector, he is an officer who collects taxes from people. Al Munawi quotes al Tibi as saying, "The sayings indicate that collecting such a levy is among the most dangerous sinse." Al Dhahabi considers it a great sin.33 Al Munawi continues, "A tax collector is like a highway robber, who is worse than normal thieves, since oppressing people and imposing undue taxes on them is heavier than stealing. The tax collector, his clerk, policemen who aid him, and even those who receive salaries and grants out of such taxes, are all partners in taking unlawful property.34

Additionally, there are sayings that call for the lifting of 'ushr off the shoulders of Muslim people. Sa'id bin Zaid says, "I heard the Messenger of God (p) say, 'O Arabs, thank God that He removed the 'ushr [ten percent] off you.'"35 A man narrates from the Prophet (p) that "The 'ushr are only on Jews and Christians; there should be no 'ushr on Muslims." An other version reads, "and there are no 'ushr on the people of Islam."36 Al Munawi in al Taisir comments on this saying of Islam. "It explicitly says the ten-percent levy is on Jews and Christians, if they made their treaty of surrender on that condition, or if they enter our country to trade. There is no such levy on Muslims, except what is required as the 'ushr of zakah on agriculture. This text explicitly prohibits imposing any levies on Muslims."37

In the remainder of this section, we shall discuss the second and third objections, since the first objection was discussed at length in part eight of this book.

The protection of private ownership in Islam is not contradictory to charging certain dues on this ownership. The poor, weak, and needy, have right on the wealth of the rich based on their brotherhood in humanity and in religion, as was shown when we studied the theoretical foundation of zakah. Society also has rights on private property, since individuals earn their wealth only in the framework of society, and one way or another, society contributes to the earning of individual property, and since without social services, life would be very inconvenient for urban people. Before all this, God has rights on private wealth. He is the Creator and true Owner of wealth. Goods are in fact God's property before anything else, and people are merely vicegerents.

If, in the Islamic society, there exist needy persons whose needs are not satisfied with all the proceeds of zakah, if there are public needs, military, economic, and otherwise that require resources, and if the spread and establishment of Islam requires funds, Islam approves of imposing taxes on the rich to achieve these targets, in application of the rule "that without which an obligation cannot be fulfilled is also obligatory."

A. The sayings about maks The saying that discredit levies are mostly inauthentic, as we have seen earlier. Even those which reach the level of acceptance do not explicitly prohibit every tax, since the word used in them for tax is the Arabic maks, which has several meanings. In Lisan al Arab (the most respected Arabic dictionary), "maks is defined as money collected from venders in pre-Islamic markets. It is also defined as what is collected by the 'ushr officer. Ibn al 'Arabi says that maks is an added dirham collected by the zakah officer above the due zakah, the collection of which the Prophet (p) prohibits. He mentions the saying 'A maks collector does not enter heaven.' Maks is also defined as the tax collected by the maks officer. Originally, the word maks means collection. Maks also means reduction; maks is a discount of the value of sale."38 Al Baihaqi says, "Maks is reduction. If the officer reduces from the proceeds of zakah, he is called a maks collector."39

Accordingly, the demeaning of maks collectors can be understood as a warning to zakah officers, for a maks collector is the dishonest and unjust zakah officer, who takes from payers more than what is due or keeps part of the proceeds, that belong to the poor, for himself. This understanding is supported by some narrators' explanation of 'ushr collectors' in the saying as officers who take sadaqah improperly.40 Moreover, Abu Daud mentioned such sayings in the chapter on "collection of sadaqah." This understanding is also supported by sayings that threaten collectors who are not just in their calculation and collection of sadaqah. (Some of these sayings are mentioned earlier in chapter two of part four). Such sayings inadvertantly convinced some Companions to refuse positions as zakah collectors because of the great responsibility involved.

However, there is another understanding of sayings on maks which may be more convincing. Maks in these sayings is explained as unjust taxes, that were predominant all over the world at the time of Islam's rise. Taxes were collected without due right and spent only on whims of the king, taxes whose burdens were not distributed justly among those who could afford them, whose proceeds were not spent for the benefit of people, taxes that were mainly imposed on the poor, from which the rich lords were exempted.

The author of al Tabyin, a Hanafite, says, texts that degrade 'ushr collectors are references to those who "take funds from people unjustly, as done by tyrants today."41 In al Durr al Mukhtar and other books, one finds similar statements.42 These taxes are the best interpretation of the word maks. Also, the 'ushr collectors threatened in the sayings are collectors used by tyrants and oppressors to collect unjust taxes.

This understanding is consistent with al Dhahabi's opinion, expressed in his al Kaba'ir, that "The maks collector is the right hand of the oppressor. Such collectors are in fact themselves oppressors, since they take what is not due and give it to those who do not deserve it."43

Taxes levied under the conditions listed in section two of this chapter to provide for needed services in the public interest to improve the standard of living, to educate the ignorant, to provide jobs for the jobless, to feed the hungry, to protect the frightened, and to cure the ill are not unjust. They are lawful, and the Islamic government has the right to impose them.

B. Saying about elimination of 'ushr The saying that 'ushr are eliminated for Muslims, although not correct, is not explicit in indicating that all taxes are prohibited, in fact, there are several other interpretations of this saying that make it consistent with just taxation.

Abu 'Ubaid comments on this and similar sayings, Sayings in which 'ushr and maks collectors are denounced clearly refer to the predominant Jahiliyah [pre-lslamic) practice of both Arab and non-Arab kings, imposing taxes (ten percent) on merchants who passed through their land. This is obvious from the messages the Prophet (p) wrote to the different regions of Arabia in which he said, "That people shall not be forced to gather in processions nor charged 'ushr. From this we know that it was a jihiliyah practice which God abolished with Islam, and which was substituted by the purifying obligation of zakah at the rate of one-fourth of a tenth, i.e. five dirhams out of each two hundred dirhams. Commissioners who collect zakah the way it is obligated are not 'ushr collectors. They do not take 'ushr; they only take one-fourth of 'ushr. This is explained in the saying that reads "No 'ushr are imposed on Muslims," 'ushr are only on Jews and Christians," and in the saying linked up to the Prophet that the 'ushr collector" is he who collects sadaqah without due right." Also, this is the reason Ibn 'Umar answered the question "Do you have any information that 'Umar collected 'ushr from Muslims.'" by replying "No, I do not." The saying of Ziyad bin Hudair that, "we used not to charge 'ushr (ten percent) on Muslims or people of the Pledge " means that he collected from Muslims one fourth of one-tenth and from people of the Pledge one-half of one tenth.44

Thus, abolishing 'ushr is the abolition of an oppressive pre-Islamic tax imposed at the rate of ten percent by kings of Arabs and non-Arabs, and substituting it by zakah at the rate of 2.5 percent on trade's assets. And what is meant by Jews and Christians in this saying is not people of the Pledge, but foreign Jews and Christians who came from outside the Islamic state with merchandise. They were charged ten percent, as reported by Abu 'Ubaid from 'Abd al Rahman bin Ma'qil, who says, "I asked Ziyad bin Hudair whom he used to charge ten percent? He answered, 'We did not charge ten percent on a Muslim or a person of the Pledge.' I said, 'Whom then did we used to charge ten percent?' He replied, 'Traders from non-Muslim countries, since they use to charge our merchants ten percent when they went there.'"44 This is on the basis of equal treatment, a very common practice among nations even today. As for people of the Pledge Jews and Christians within the Muslim land - they were not charged ten percent, nor were they charged 2.5 percent like Muslims. They were charged five percent, as stated by Abu 'Ubaid, who adds "At first I did not know the reason. Then I studied a report from 'Umar and found that he made the treaty with them on that basis.45 It seems that duplicating the rate for them as compared to the rate applied on Muslims was compensation for their exemption from any tax on livestock and money, while Muslims still had to pay zakah on these properties.

Al Tirmidhi gives another interpretation of the saying abolishing 'ushr. He argues that Muslims are not charged 'ushr because 'ushr was the levy on persons and not on wealth, like jiziah. The Prophet says "'ushr i.e. jiziah is only on Jews and Christians and not on Muslims." In some versions of the saying reported by Abu Daud, the words are "There is no kharaj on Muslims." The word kharaj was used to mean jiziah, which used to be called "kharaj on heads."47

Strangely, in al Taisir al Munawii attempts to conclude that the above-mentioned sayings prohibit all taxes:

It seems that this saying did not reach 'Umar, since he imposed maks. Al Maqrizi and others say 'Umar was informed that when Muslim merchants went to India they were charged ten percent. He then wrote to Abu Musa al Ash'ari, then governor of Basrah, "collect from each Muslim merchant that passes by you at the rate of five dirhams from each 200 dirhams, and from people-of-the-Pledge merchants at the rate of one dirham out of each 20 dirhams." Later 'Umar bin 'Abd al 'Aziz abolished this maks.48

This is a reference to what 'Umar bin 'Abd al 'Aziz wrote to one of his governors, "Abolish the maks," and to another "Ride to the house in the city of rafah that is called the house of maks, and demolish it."49

In fact, this opinion of al Munawi lacks accuracy and correctness because of the following:

A. He grades the saying about 'ushr good or correct. The saying is neither correct nor good, as he himself mentions in his comments on Faid al Qadir.

B. He presumes 'Umar took an action contradictory to a correct saying, and not one Companion brought that to 'Umar's attention, despite their large number and their keeness to fulfill the ordinances of the Prophet, especially in a matter that relates to masses of people.

C. He suggests that 'Umar, with full approval of all the Companions, committed a denounced action that is one of the great sins. A maks collector does not enter heaven.

This is an obvious contradiction to the order of the Prophet that we must follow the tradition of the Wise Successors of whom Umar is one.

D. His last statement implies that 'Umarr bin 'Abd al 'Aziz abolished this oppressive ruling of 'Umar bin al Khattab. It is a historical fact that the later 'Umar was keen to follow the footsteps of 'Umar bin al Khattab, and for that reason he is considered similar to Ibn al Khattab by many historians. 'Umar bin 'Abd al 'Aziz abolished oppressive levies and practices of the Umayyads, his own folks, because his love of God and his messenger would not allow him to follow his family. It is obvious that 'Umar bin 'Abd al 'Aziz abolished unjust dues that exceeded what was right and proper, and ordered zakah collectors to be fair and just in their estimation and collection. For reasons like this he is called the fifth of the Wise Successors by many Muslim scholars. The position of 'Umar bin 'Abd al 'Aziz is clarified by Ibn Hazm, who reports from Zuraiq bin Hayyan al Dimashqi, a commissioner in Egypt, that 'Umar bin 'Abd al 'Aziz wrote me, 'Look after whoever passes by you of Muslims and take from what is apparent of their wealth (the trade inventory they administer) at the rate of one dinar out of each forty dinar. What is less than that is charged proportionately.'"50

What concerns this study is that the saying "There are no 'ushr on Mulims" cannot be used to prohibit imposing just taxes on Muslim people when the Islamic state needs them. This saying is not accepted from the point of view of its authenticity as well as its indication.

Very seldom do jurists use the Arabic word daribah, which means tax. But in their writings they refer to regular levies using other names. Sometimes they call them "government charges" " duties," "kharaj," or "allotments." Hanafites, both early and later generations, mention taxes and distinguish between just and proper taxes and oppressive ones. Ibn 'Abidin says "Some allotments are justified, such as fees for making water pools on rivers, for distribution of water, for irrigation, to pay night watchmen to finance the aray, or to free captive, when this is needed and the public treasury does not have funds. But some allotments are not right, such as many which are collected in our times." In al Qunyah, Abu Ja'far al Balkhi is quoted as saying, "What is imposed by the Islamic government on people to pay for public interests is a religiously obligated financial due similar to kharaj. Our teachers say, 'What is collected by the government to provide for public interests become obligatory, such as salaries for guards that protect roads and buildings and entrances of highways'. Similar to these just taxes is what is collected in khawarizm [A Muslim city in Russian-occupied Central Asia] to repair the banks of the river al Jihun, and to pay the frontier guard. Such duties are obligatory, since they are not oppressive. Every taxable person must pay them. The government must not be denounced for such levies but must not be encouraged to exceed what is necessary."51 Ibn 'Abidin, after quoting al Balkhi's statement in his Radd al Muhtar, comments, "This only applies when there are no funds sufficient for these purposes in the public treasury."52

Al Maliqi, a Malikite says, "Imposing 'kharaj' on Muslims is subject to the given public interests. There is no doubt in our school that it is permissible. It is obvious that we have such needs in Andalusia today, especially since we pay war booties to the enemies of Muslims, in addition to what is needed for public services and in regard to the weakness of the treasury. All this provides sufficient grounds for the lawfulness of such taxes in Andalusia today. What is important, though, is to determine the amount needed and not to impose taxes beyond that. This is left to the discretion of the Islamic government."53

In section one of this chapter, the views of al Ghazali and al Shatibi that it is permissible to impose taxes if need arises and there are no funds in the public treasury were cited. Ibn Taimiyah has similar view, and approves of taxes that are just and consistent with needs, while he disapproves of some others, as mentioned by the author of Ghiyath al Umam.54 This means we have opinions from each of the four major schools that when needs exist and the public treasury does not have sufficient funds taxes -- within certain conditions - may be levied on rich people.

Several jurisprudence rulings and opinions deal with unjust taxes, such as the following:

1. Transactions such as a guarantee agreement of unjust taxes are legal, in the sense that if a guarantor had to pay the amount of unjust taxes to the government, he has the right to collect what he paid from the guaranteed person. This does not, however, mean the government has the right to collect unjust taxes from guarantors.55

2. Whoever takes responsibility for just distribution of the burden of such unjust levies is rewarded by God, since leaving distribution of the burden up to the oppressive authority leads to very unjust distribution of the burden of these levies.56

3. It is lawful to cheat the government with regard to these levies, unless it is known that such an endeavor ends up putting more burden on other tax payers. If so, it is preferred that one not cheat in payment.57 Ibn Taimiyah says, "When communities are charged levies by oppressive authorities, whether on heads, or on their animals, trees or wealth, or are over-charged in zakah or kharaj or other levies that are not justified in Shari'ah (such as sales taxes), such charges must be justly distributed among the oppressed. No one of the people unjustly charged with such taxes has any right to throw his share of the collective burden on others. They are required to distribute the burden of those unjust taxes in a fair way, as if they were lawful, since from the point of view of collection and payment, people are forced to pay unjust taxes the same way they are forced to pay just taxes, The evil of unjust taxes is carried by those who impose and collect them and not by payers. Payers in such cases are required to pay their share of the burden fairly and justly. No one has the right to escape payment if such an escape throws the burden on others."58