Fiqh Al Zakah by Dr. Yusuf al Qardawi

Wealthy individuals in most contemporary societies pay several taxes, progressive and otherwise, at rates very often several times the rates of zakah decreed in Shari'ah.

These taxes provide resources for the government's budget and finance the state's expenditures. No doubt, several subjects of the expenditure of contemporary states are similar to zakah deservants, such as funds for welfare programs that help the poor, the disable, and street beggars, or programs which provide job and training for the jobless.

Most contemporary governments have one or more department for such social and welfare matters. Therefore, the question arises, will these taxes make up for the zakah required by Shari'ah? Or must Muslim taxpayers pay zakah individually or to organizations in addition to taxes paid to the government?

In order to answer this question, we must remember that there are three essential features of zakah without which. zakah does not exist. These are:

1. The rates as determined in Shari'ah (2.5 percent, five percent, or ten percent)

2. The specific intention of fulfilling a worship in obedience to God.

3. Distribution to the eight categories mentioned in the Qur'an.

Do taxes have these three characteristics? Tax rates do not follow the rates determined in Shari'ah, which are described in this study. Tax rates are more than zakah rates on certain assets and less on others. Some zakatable assets are not taxable at all, while some taxable assets and incomes are not zakatable in Shari'ah. Yet one may argue that when the rate of zakah is more than the tax rate, Muslim taxpayers should be required to distribute the difference individually, and when the tax rate is more than the zakah rate, zakah is covered. As for intention taxes do not require intention, but one can still argue that Muslim taxpayers may have the intention of paying zakah when they pay their taxes. As for the third characteristic of zakah when the state collects zakah it must distribute its proceeds according to Qur'an. Moreover, if the government collects zakah, this collection must take the name of zakah, since zakah loses its essence without its name, form, and purpose (i.e. proper distribution). For such reasons, Malikites specifically argue that if an oppressive government collects zakah in the name and form of zakah, payment to such government fulfills the Shari'ah requirement for individual payers. But levies and taxes collected under other names, such as maks and daribah, do not replace zakah and cannot be counted as zakah as long as they do not carry the name and the form of zakah especially since they may be distributed to areas which are not approved in Shari'ah.

Lastly, we must realize that sincere Muslims are in most countries today charged more financial dues that non-Muslims, since Muslims are required to pay taxes like everybody else, and in addition are required to pay zakah, either by direct distribution or through Islamic organizations.

The above question would not have arisen if there were not gross contradictions in Muslim societies today. On one hand there are still Muslims who hold to the basics of Islam, and Islam is the official religion in most Muslim countries. Yet Islamic law has been stripped from the legislation system of most Muslim lands. Take zakah as an example. Although it is one of the pillars of Islam, and although many Muslims implement it individually and would like it to be part of their social system, most countries do not have a legal system for zakah. In all eras there are stingy persons whose love of accumulation prevents them from paying zakah. Such people used to be forced to pay it by the government, but now the lack of law enforcement, and the lack of zakah act in most Muslim countries, leaves these miserly wealthy persons unzakated.

In most cases, the transfer from Islamic law to imported Western laws was a result of Western colonialism that dominated Muslim lands in the nineteenth and the first half of the twentieth century. The cultural and legislative impact of colonialism was far deeper and more dangerous to Muslim society than military occupation. After the aggressive troops withdrew from most Muslim lands we found ourselves with penal codes that are not Islamic, whereby prostitution, pornography, night clubs, adultery, and drinking are legalized; with civil codes that is not Islamic, whereby interest and other unlawful transactions are made permissible in such a way that social and economic activities become dominated by foreigners and minorities. We found ourselves with social standards and financial codes whereby zakah is wiped out and taxes alien to the Islamic system are imposed. More painful even, is cultural colonialism that resulted from the heavy impact of military, economic, and legislative domination of the West on Muslim lands. As a result of cultural colonialism, we find "geographic" or nominal Muslims who even oppose the idea of re-establishing zakah and other Islamic reforms, like some so-called Muslims members of the Egyptian parliament who objected to the proposed re-installment of zakah law, on the grounds that they want their country secular and detached from religion like Western states in Europe.

Muslim governments today are called upon to adopt the Islamic system in all aspects of societal organization, and especially to give sufficient attention to zakah and establish an autonomous department to collect and distribute zakah, the third pilar of Islam. It is necessary to enact an accurate and detailed law of zakah whereby duality with other taxes is eliminated, and Muslim zakah payers are not disadvantaged financially as compared to non-Muslim minorities.

Muslim individuals are also called upon to pay zakah to the state, if the state collects it, and if not, to organizations established for such purposes, or at least individually, because this is a basic rite of Islam.

We have religious opinions given at different times by renowned scholars that Muslim taxpayers may hold the intention that taxes they pay are wholly or partially in fulfillment of zakah. Among them is al Nawawi, who says, "Shafi'ites agree that levies collected unjustly do not stand in place of 'ushr. But if the government takes such levies in place of 'ushr (zakah on agriculture) scholars have two opinions on whether the obligation of 'ushr is thus fulfilled or not. The correct one is that such payment fulfills the required 'ushr. If the amount collected by the state is less than the required 'ushr the difference must be paid by the payers."1 Although levies referred to in this statement are not far-removed from contemporary taxes, it is important to observe that al Nawawi says "If such levies are collected in place of zakah," while governments today do not have in mind to collect such taxes in place of zakah nor to they expend their proceeds on zakah deservants.

Similarly, a Hanbalite writer says, "Ahmad was asked about a land in which the government takes half of one's produce. He answered, 'that is unjust. The government does not have such a right.' Then he was asked whether the payer must distribute zakah on the other half. He answered, what is paid the government fulfills the obligated zakah.' If the owner makes his intention likewise."2 Ibn Taimiyah is quoted to have said, "levies taken by the government in the name of maks (taxes) can be given with the intention of paying zakah and obligated zakah is thus fulfilled, although such payments do not take the form of zakah."3 This quote from Ibn Taimiyah seems to contradict his statement in al Fatawa, "What is collected by rulers in names other than that of zakah cannot be counted as zakah payment."4 I wonder which of these two quotes is the correct one, or what was the final opinion of Ibn Taimiyah?

Whatever the motivation behind such opinions, they were given under presure to avoid over-burdening sincere Muslims who were already charged several oppressive taxes. The case in contemporary society is slightly different since it is presumed that existing taxes are necessitated to provide people with basic services, including defense, i.e. it is presumed that existing taxes have acceptable justifications. Therefore, these taxes cannot make up for zakah, even with the intention of the payer to pay zakah.

The majority of scholars do not approve of intending zakah payment when taxes are paid, and come down hard against opinions that allow it. Ibn Hajar al Haitami, a Shafi'ite, says in his al Zawajir, Some corrupt merchants think the maks they pay can be counted as zakah if they make the intention of paying zakah. This is an unfounded notion. It is false and incorrect according to the Shafi'ite school. The government -- when it collects taxes -- does not intend to consider these taxes zakah, nor do they collect zakah according to Shari'ah, regarding both rates and zakatable assets. The government levies these taxes with the claim that their proceeds need to be spent on the army and public interests of Muslims, which I do not want to argue at this point, but given that taxes are legitimate and their proper conditions are fulfilled, these taxes are different from zakah and must not be considered zakah for they do not even carry its name. Some merchants tell me that they make intention of paying zakah when they give this maks to collectors, and if these collectors give it to non zakah deservants, it is their problem.

This idea is also false. maks recipients do not usually deserve zakah. They are all rich or powerful and can earn. By what virtue can zakah be given to this kind of people? The selfishness of the merchants makes them blind so they do not see right from wrong. All they want is to save themselves the properly due zakah, since they are forced anyway to pay these taxes. They must realize that zakah obligated by God is not fulfilled by tax payments, even if accompanied by their wicked intentions. As for the oppressive taxes themselves, payers of those taxes are rewarded by God in as much as they are oppressed. Muslim scholars consider maks collectors thieves or armed robbers. They may, in fact, be much worse. Evidently, money collected by armed robbers cannot be considered zakah by the robbed. Muslim scholars warn Muslim payers repeatedly that making the intention of paying zakah when they pay taxes to maks collectors is improper and meaningless. Scholars consider those who do that ignorant.5

Ibn Abidin, a Hanafite, after quoting some opinions of Ibn Hajar, goes on to say, Nowadays, maks collectors contract the government for certain amount they pay the government, against which they collect for themselves, very oppressively and aggressively.

Payments to maks collectors are taken by force repeatedly, more than once a year, even when an asset is not zakatable at all. Such payment cannot be counted as zakah in the Hanafite school. The maks collector is not like the zakah collector appointed by the Islamic government to collect zakah from merchants passing on roads. In al Bazzaziyah it is stated, "If the payer makes the intention of paying zakah when handing over obligated maks, the correct opinion is that this cannot be considered zakah, as confirmed by al Sarakhsi."6

The late Shaikh Alaish, a Malikite, was asked whether a person who owns nisab of livestock and is forced to pay a certain amount every year to the government can count his payment as zakah. 'Alaish answered, "No, even with the intention of zakah payment, as is also the opinion of al Nasir al Laqani, and al Hattab."7

Rashid Rida was also asked whether taxes collected by British Christians from Indian Muslims, which sometimes reach one-fourth or one-half of the land rent, can be considered zakah? His answer was The 'ushr and half-'ushr obligated as zakah on land produce must be expended to the eight categories given in the Qur'an. If the Islamic government or its representatives collect this zakah, the zakah payer fulfills his duty by paying to the government or its representatives, who are obligated in Shari'ah to distribute the proceeds properly. But if the Islamic government does not collect zakah, owners must distribute their due zakah according to the ordinance of God. What is collected by Christians and others from Muslims in lands they conquered are kind of taxes whose payment does not fulfill the obligation of zakah. Muslims are required to pay zakah on the remainder after these impositions.

What concerns us of his opinion is his statement "What is collected by Christians and others," since it means taxes cannot stand for zakah, whether collected by Christians or non-Christians, including national governments in Muslim countries.

Mahmud Shaltut, former head of al Azhar mosque, was asked whether taxes could be counted as zakah. His great answer ascertained that since zakah is "a financial worship" it is far from being similar to taxes. Although there are certain similarities between tax and zakah, the differences are much greater. Taxes and zakah differ in their respective legislative sources, in their theoretical foundation objectives, rates, exemptions, and expenditure of proceeds, He adds, Zakah is decreed by God, an obligation based on faith that must be performed whether there are poor and needy or not, and a permanent flow of resources for the poor and needy that exists at all times in all people, while taxes are ordained by governments when there is need.

With all the differences between them, one cannot substitute for the other. Accordingly, zakah remains due according to the conditions know in Shari'ah, regardless of the payment of taxes. Taxes are obligated by law and zakah is obligated by the religion of God. If this sometimes makes the burden heavy for rich persons, poor must not be made to pay for this by being deprived of their right. Instead, governments must be asked to economize expenditures and reduce taxes. Governments must be questioned on the efficient use of the tax money they collect. This is one of the basic principles of the Islamic political system.

Lastly, in his Tanzim al Islam li al Mujtama, Muhammad Abu Zahrah answers the question as follows: "Not a substantial portion of tax proceeds is devoted to social welfare, which is the essential objective of zakah. Zakah is obligatory first of all. It may substitute for certain taxes, but existing taxes may not substitute for zakah, since they do not fulfill the needs of the poor."10 Abu Zahrah's answer, gives only one aspect of the importance of zakah. Obviously, even if a sufficient proportion of taxes is devoted to the same objectives of zakah, zakah must still be collected because it is ordained by God and no one has any authority to freeze or abolish it. It must be collected under the same name of "zakah" and at the same rates and conditions prescribed by God. It must also be spent to the proper deservants mentioned in the Qur'an. Even if in certain countries the poor and needy happen to be satisfied, zakah must still be collected from the rich in that society and spent in the way of God or to make His word supreme.

I must add that the opinion of Shaltut and other scholars that "taxes do not make up for zakah" is the one with which I feel comfortable, since it is based on legitimate considerations and is safer from the point of view of practical application, since zakah as the third pillar of Islam must not be forgotten in actual practice. True, this means sincere Muslims must pay zakah in addition to taxes which they are obligated to pay by laws, but this is one way of striving for the re-establishment of this religion on earth, especially in a time like ours. Muslims are called upon to struggle to correct the abnormal situations prevailing in their countries and to erase the contradictions spawned by colonialist authority over Muslim lands. The legal and economic situation in Muslim countries must be brought back to compliance with the Islamic system. Without enormous efforts to reform Muslim societies under the guidance of the Islamic system, Muslims shall remain burdened financially, psychologically, and socially, since they live in a society whose laws and regulations are against the nature of their religion Islam. If Muslims find that in certain parts of the world governments take care of the poor and needy, this does not mean zakah is no longer needed, since zakah has several other destinations, including the call to Islam, reconciling hearts to it, preparing, training, and supporting Muslim callers and Islamic centers, in addition to actual jihad for making the word of God supreme. If some Muslims do not find deservants of zakah in their areas they can always transport their zakah to the nearest country where there is need for zakah proceeds.

As for the opinions attributed to Ibn Taimiyah, al Nawawi, and Ahmad, they deal with circumstances that are essentially different from ours in a time when governments were generally Islamic ad collected zakah regularly. If it were to be permitted to count as zakah taxes paid to governments today this would be a final abolition of this religious obligation and even the remnants that exist now would be done away with, just as it was erased from the laws and legislation of governments. This is something no one can approve, justify, or accept in any time or place.