The Distinguished Jurists Primer by Ibn Rushd

/6This chapter deals with the identification of the nisab of each category of wealth on which zakat is levied, and that is the quantity on which zakat is charged for those 7items reaching the nisab. It also deals with the identification of the amount due on an item, that is, on itself and its quantity mention those things that they agreed upon and those over which they differed for each of the species, whether agreed upon or disputed. We will divide the discussion into sections. The first section is about gold and silver. The second is about camels. The third is about sheep. The fourth is about cows. The fifth is about crops. The sixth is about goods.

They agreed that the quantity of silver on which zakat is levied is five awqiya [ounces], because of the authentic saying of of the Prophet (God’s peace and blessings be upon him), “There is no sadaqa in what is less than five awqiya [ounces] of silver”. They disagreed about the stipulation of a nisab for minerals other than silver, and also about the amount due on them. An awqiya, in their view, was equal to five dirhams by weight. They agreed that the amount due on this is one-fourth of a tenth. This applies to gold as well, that is, zakat is one- fortieth. This is so as long as they are in a state when they do not cease to be minerals.

Under this topic they disagreed over five points: first, the nisab for gold; second, does waqs apply to them, that is, is there no increase in zakat with an increase in an amount above the nisab'™ third, can one category be added to another for purposes of zakat so that they are considered as an independent category, that is, at the time of the fixation of the nisab, or are they two separate categories; fourth, is it a condition for the nisab that there be a single owner for it and not two; and fifth, the consideration of the nisab for minerals, their hawl, and the amount due on them.

The first issue deals with their disagreement over the nisab of gold. The majority of the jurists maintain that zakat is to be levied on twenty dinars by weight as it would be in two hundred dirhams. This is the opinion of Malik, al- Shafi i, Abu HanTfa, their c disciples, Ahmad, and a group of the jurists of the provinces. A group of jurists, including al-Hasan ibn AbT al-Hasan al-BasrT and most of the disciples of Dawud ibn A1T, held that there is nothing to be paid C on gold until it reaches an amount of forty dinars, and in that the amount due is one-fourth of a tenth - one dinar. A third group said that there is no zakat on gold until its market rate equals two hundred dirhams™ or it has that value. If it reaches that value one-fourth of a tenth is due on it, whether its weight is twenty dinars or less or more. This applies to an amount that is less than forty dinars, but when it reaches an amount of forty dinars its own weight is to be taken into account and not its value in dirhams or its market rate or value.

The reason for their disagreement over the nisab of gold is that nothing has been established about it from the Prophet (God’s peace and blessings be upon him), in the manner of the nisab of silver. The tradition related from al-Hasan ibn cUmara through CA1T that the Prophet (God’s peace and blessings be upon him) said, “Bring forth the zakat on gold at [the rate of] one-half dinar for every twenty dinars” is not, according to most, a tradition that can be acted upon, because of its being an isolated tradition narrated by al-Hasan ibn TJmara alone. Those for whom this tradition was not authentic relied upon consensus, which is their agreement about the obligation of zakat on forty dinars. Malik, however, relied upon ^amal (practice at Medina) and for that reason he said in al-Muwattd*'. “The sunna over which there is no dispute among us is that zakat is due on twenty dinars as it is due on two hundred dirhams”. Those who determined that zakat is due on what is less than forty did so on the basis of dirhams. As both gold and silver belonged to the same species, in their view, they deemed silver to be the basis, because a text has proved authentic for it. They, therefore, determined that (the value of) gold is to be dependent on that of silver by value and not on the basis of weight. This applies in the absence of consensus. In addition, in some traditions the words are, “There is no sadaqa in less than five awqiya (ounces) of riqa”, and it is said that the term riqa applies to both gold and silver.

They disagreed over what is in excess of the value of the nisab (of gold and silver). The majority maintained that the weight in excess of two hundred dirhams is to be assessed in the same ratio, that is, one-fourth of a tenth. Those who upheld this opinion include al-ShafiT, Abu Yusuf and Muhammad, the disciples of Abu HanTfa, Ahmad ibn Hanbal, and a group of jurists. Another group of jurists, mostly from Iraq, maintained that there is nothing due on what is in excess of two hundred dirhams until the excess reaches an amount of forty dirhams. If it does reach an amount of forty dirhams, one-fourth of a tenth is due on it, which is one dirham. This was the opinion of Abu HanTfa, Zufar, and a group from among their disciples.

The reason for disagreement arises from their dispute about the authenticity of the tradition of al-Hasan ibn TJmara, the conflict between the indirect indication of the text with it the tradition and also their vacillation between two bases in this context, each carrying a different hukm, and these bases are cattle and grains. Al-Hasan ibn TJmara related his tradition from Abu Ishaq from cAsim ibn Dumra from CA1T from the Prophet (God’s peace and blessings be upon him), “I have waived the sadaqa on horses and, slaves, but pay on gold and silver at (the rate of) one-fourth of a tenth from every two hundred dirhams being five dirhams, (and pay) one-half dinar for every twenty dinars. There is nothing due on two hundred dirhams until a year has passed over them and then five dirhams are due on them, and what is in excess of this there is due a dirham for every forty dirhams, and for every four dinars in excess of the (first) twenty dinars is a dirham until the excess reaches forty dinars, and then for every forty dinars is a dinar and for every twenty-four dinars is one-half dinar and a dirham”. The indirect indication of the text (dalil al-khitab) that is in conflict with it arises from the saying of the Prophet (God’s peace and blessings be upon him), “There is no sadaqa on less than five awqiya of silver”, as it means that what is in excess of this is subject to sadaqa. As to their vacillation between the two bases, which are cattle and grain, the text about waqs has been laid down for cattle, and they agreed that there is no waqs in grain. Those who held silver and gold to be similar to cattle said that waqs operates in it, while those who held them to be similar to grains said that there is no waqs in them.

The third issue deals with the adding of gold to silver for purposes of zakat. According to Malik, Abu HanTfa, and a group of jurists dirhams may be added to and if the nisab is attained by combining them becomes due on it. Al-ShafiT, Abu Thawr, and Dawud said that gold is not to be added to silver nor is silver to be added to gold.

The reason for their disagreement stems from whether zakat is levied on each of these categories for a reason inherent in (each of) them or for an underlying reason that is common to all, and that is, as is maintained by the jurists, the attribute of their being sources of capital (currencies) and a means of valuating consumable things. Those who maintained that the consideration in each is the inherent substance, because of which the nisab for each is different, said that these are two separate species, as is the case with cows and sheep and, therefore, one is not to be added to the other. Those who maintained that the consideration in them is for the common attribute that we have mentioned, permitted the^adding of one category to the other. It appears that the differences should be taken into account due to the variation in ahkdm insofar as the names are different and insofar as the commodities themselves are different, although the goal of making profit provides a common basis, and that is what was taken into account by Malik (God bless him) in this topic, and also in the case of riba. Those who permitted adding of the categories together differed over the description of addition. Malik held that they are to be combined on the basis of a determined currency (rate), and this is to be done by converting one dinar into ten dirhams, as was held by him earlier. Thus, a person who has ten dinars and one hundred dirhams is under an obligation to pay zakat on both, in his view. He permitted that any one of them may be converted into the other. Some other jurists, out of these, said that the addition is to be done on the basis of value at the time of zakat. If, therefore, a person has one hundred dirhams and nine mithqals having a value of one hundred dirhams he is under an obligation to pay zakat on them. If the person has one hundred dirhams that are equal to eleven mithqals and he also has nine mithqals, then, he too is obliged to pay zakat on them. Those who held this opinion include Abu Harnfa, and a similar opinion was expressed by al-ThawrT, except that he preferred being careful in favour of the needy, that is, in the use of value or a determined rate (of conversion) for addition. Some of these jurists maintained that a category lesser in quantity should be (converted and) added to the one greater in quantity, and the category greater in quantity should not be added to the one lesser in quantity. Some other jurists said that it is always the dinars that are (converted and) added by value, whether they are less in number than the dirhams or more, and that the dirhams are not to be added to the dinars, as it is dirhams that are the basis and dinars are dependent on them, for there is no established tradition or consensus about dinars until they reach the number of forty. Some maintained that if the person possessed the nisab in one category, the other category is to be added to it whether it is less or more. They did not attempt to make a nisab through addition when neither reaches the nisab alone.

The reason for such entanglement was their desire to render the nisab of two separate things having different weights into a single nisab. All this is meaningless. Perhaps, those who desired to add one category to the other created a new hukm in the law where there is no hukm, for they came up with a nisab that is neither the nisab of gold nor that of silver. It is difficult, in practice relating to the imposition of liability and the issuance of injunctions, to lay down specific ahkam for such probable cases. The shai\ therefore, remains silent on them and this silence leads to disagreement to such an extent. The Lawgiver had sent the Prophet (God’s peace and blessings be upon him) for the removal of disputes.

According to Malik and Abu HanTfa, two partners are not under an obligation to pay zakat individually until each one of them possesses the nisab. According to al-ShafiT, combined wealth has the hukm of a single individual.The reason for disagreement stems from the consensus upon the saying of the Prophet (God’s peace and blessings be upon him), “There is no sadaqa on less that five awqiya (ounces) of silver”. It is possible to understand from this that this is its hukm when there is one owner, and it is also possible to understand that this hukm applies to it when it is owned by one or more, except that as the purpose of the stipulation of nisab is relief from burden it is deemed necessary this nisab be for one owner. This is a better interpretation, Allah knows best. Al-Shafi T, it c appears held it to be similar to the mixing of the two capitals,197 but the effectiveness (in law) of mixing the capitals for purposes of zakat is not agreed upon, as will be coming up later.

This relates to their disagreement about consideration of the nisab in minerals (in the form of ore) and the amount due on them. Malik and al-Shafi<T did take the nisab into account in the case of minerals. The disagreement between the two is that Malik did not stipulate the passage of one year for them, while al-Shafi T did stipulate c that, as we will discuss in the fourth chapter. Likewise, their views did not differ on the point that the amount due on them is one- fourth of a tenth. Abu HanTfa did' not stipulate a nisab in minerals nor the passage of a year. He said that the amount due is a fifth. The reason for disagreement is whether the term rikdz (treasure) includes minerals as well. The Prophet (God’s peace and blessings be upon him) is reported to have said, “In the treasure-trove there is a fifth”. Ashhab has related from Malik that minerals found without effort are treated as rikdz and it is in these that there is a fifth. The reason for their disagreement over this derives from “the connotation of a word” (dalalat al-lafz), which is a basis for the common disputes that we have mentioned.

The Muslim jurists agreed that on every five camels there is a sheep, up to twenty-four. If there are twenty-five camels the zakat due is one makhad up to .thirty-five camels, but if a Wnr makhad is not available the zakdt due is one ibn labun male. If the number of camels is thirty-six the zakdt due is one bint labun up to forty-five camels. When the camels are forty-six the zakat is on hiqqa up to sixty. If the camels are sixty-one the zakdt due is one jadha^ up to seventy-five camels. If the camels are seventy-six the zakdt due is two labun up to ninety. When the camels are ninety-one the zakdt due is two hiqqas up to one hundred and twenty camels. All this is prescribed because it is established in the book of sadaqa laid down by the Prophet (God’s peace and blessings be upon him), and which was followed after him by Abu Bakr and TJmar.

They disagreed about it on certain points. These include: the issue of the number of camels over one hundred and twenty; the hukm in the case of lack of a camel of the required age when the person possesses one that is older than it or one that is younger; and the question whether zakat is levied on very young camels, and if it is then what is due?

This relates to their disagreement about camels in excess of one hundred and twenty. Malik said that if they exceed one hundred and twenty the collector has the choice of acquiring three bint labuns or two hiqqas up to one hundred and thirty camels, in which case there will be one hiqqa and two bint labuns, Ibn al-Qasim, from among his disciples, said that he is to pay three bint labuns without a choice till the total is one hundred and eighty camels when the required payment is one hiqqa and two bint labuns. This was also al-Shafi^s opinion. Abd al-Malik c ibn al-Majishun, one of the disciples of Malik, said that the official collector is to take only two hiqqas without having a choice, up to one hundred and thirty camels.

The Kufis, Abu HanTfa, his disciples, and al-Thawri, said that if the camels are in excess of one hundred and twenty the assessment of what is due is to begin afresh. This means that there is one sheep due on every five camels in their view. If the total number of camels is one hundred and twenty-five, the zakat due will be two hiqqas and a sheep, the two hiqqas being due on one hundred and twenty and the sheep on the five camels. If the total reaches one hundred and thirty there are two hiqqas and two sheep on them, and if it is one hundred and thirty-five the zakat due is two hiqqas and three sheep up to one hundred and forty, in which case there will be four sheep and two hiqqas up to one hundred and forty-five. If the figure of one hundred and forty-five is reached the zakat is two hiqqas and one bint makhad, the two hiqqas being for one hundred and twenty camels and the bint makhad for the twenty-five (excess) camels, as was the case in the initial assessment, and this up to one hundred and fifty camels. If the total reaches that figure there are three hiqqas due on it. If the figure exceeds one hundred and fifty the assessment is to revert to the initial ratios until the figure reaches two hundred camels, in which case the zakat will be four hiqqas, when it is to revert to the initial assessment again. The jurists other than the Kufians agreed that for whatever exceeds one hundred and thirty there is one bint labun for every forty and one for every fifty.The reason for their disagreement in reverting the assessment to the original or not reverting it, arises from the conflict of traditions on the issue. It is established in the book of sadaqa that the Prophet (God’s peace and blessings be upon him) said, “In a number exceeding one hundred and twenty, for every forty there is one bint labun and for every fifty a hiqqa”. It is related through Abu Bakr ibn Amr c ibn Hazm from his father from his grandfather from the Prophet (God’s peace and blessings be upon him) that he caused the book of sadaqa to be written and it says, “If the camels are in excess of one hundred and twenty, the imposition of the obligation is to commence anew”. The majority preferred the first tradition since it is more authentic. The Kufians decided to prefer the tradition of cAmr ibn Hazm as this was proved authentic through the transmissions of CA1T and Ibn Mascud. They said that it is not proper that such a thing be anything but a precedent, for such a thing cannot be expressed on the basis of analogy (opinion).

The reason for disagreement between Malik and his disciples on the one hand and al-Shafi T on the c other over what is in excess of one hundred and twenty up to one hundred and thirty is that they had no uniform method with which they could accommodate the forties and fifties. Those who maintained that what is between one hundred and twenty and up to the point where the calculation can be accommodated is waqs, said that there is nothing to be levied until the figure reaches one hundred and thirty (two forties plus one fifty), and this, they said, is according to the apparent meaning of the tradition. Al- Shafi T and Ibn al-Qasim held that c there are three bint labuns in this case, as it is related from Ibn Shihab that in the book of sadaqa it is stated that if the figure reaches one hundred and twenty-one the levy is three bint labuns, and if the figure reaches one hundred and thirty the levy is two bint labuns and one hiqqa. The reason for disagreement between Ibn al-Majishun and Ibn al-Qasim1 stems from the conflict -between the apparent meaning of an established tradition and an explanatory text that occurs in this tradition. Ibn al-Majishun preferred the apparent meaning, because of the agreement about its authenticity, while Ibn al-Qasim and al-ShaficT placed a construction upon the mujmal (obscure) meaning through the explanatory text. It appears that by granting an option to the official collector, Malik tried to reconcile the two traditions, Allah knows best.

This issue deals with the case when a camel of the right age is not available among the camels, but the assessee has camels of an age that is either higher or is lower. Malik said that he is to be obliged to buy a camel of that age. A group of jurists said that he is to deliver the camel that he possesses along with a payment of twenty dirhams if the age of the camel that he has is less (than the prescribed age), or he may give two sheep. If the age of the camel that he has is greater, the collector of the sadaqa is to pay him either twenty dirhams or two sheep. This is established in the book of sadaqa, so there is no purpose in arguing over it. Perhaps this tradition did not reach Malik. Al-ShaficT and Abu Thawr based their opinions on this tradition. Abu HanTfa said that the obligation is to pay the value, and this on the basis of his principle of assessing values for the purpose of zakat. Another group of jurists said that he is to deliver the camel that he has and adjust the value of the difference.

The third issue is whether zakat is levied on very young camels, and if it is due then what is the liability? A group of jurists said that zakat is levied on them, while another group said that it is not.

The reason for their disagreement arises from whether the term used for the species includes very young camels. Those who maintained that there is no zakat on them, and these are Abu HanTfa and a group of jurists from Kufa, argued on the basis of the tradition of Suwayd ibn Ghafla, who said, “The collector appointed by the Prophet (God’s peace and blessings be upon him) came over to us and I sat with him when I heard him say, ‘It is my mandate that I do not take one of the suckling baby camels and that I do not combine distinctive categories nor do I separate combined things? He [Suwayd] said, ‘A man came up to him with a camel with a mounting hump (kawmd?), but he refused to accept it’”. Some of those who made zakat obligatory on young camels said that he is to be obliged to buy a camel of the right age due on them, while others said he may take one out of them, which is closer to analogy. They disagreed in the same way over calves and kids.

The majority of the jurists maintain that for every thirty cows zakat in the form of a one-year-old cow (tab?) is due and for every forty cows a two-year- old cow (musinna). A group of jurists said that for every ten cows one sheep is due, and this rate applies to up to thirty for which a one-year-old cow is due. It is said that when the number reaches twenty-five there is one cow due on them up to seventy-five, and two cows are due when they exceed this number. If the number reaches one hundred and twenty, then, for every forty one cow is due, and this is related from SacTd ibn al-Musayyab. The jurists differed over the number between forty and sixty. Malik, al-ShaficT, Ahmad, al- Thawff, and a group of jurists held that there is nothing due on the cows that exceed forty until the number reaches sixty. If the number reaches sixty there are two one-year-old cows for them up to seventy. At seventy there is one two- year-old cow and one one-year-old cow up to eighty. At eighty there are two two-year-old cows up to ninety. At ninety there are three one-year-old cows up to one hundred. At hundred there are two one-year-old cows and one two- year-old cow and so on for whatever goes beyond that. Thus, for every thirty there is a one-year-old cow and for every forty a two-year-old cow.

The reason for their disagreement over the nisdb stems from the fact that the tradition of Mu^dh is not agreed upon for its authenticity, for which reason it has not been recorded by al-BukharT or Muslim. The reason for disagreement amongst the jurists of the provinces over waqs in cows is that it is reported in this tradition of Mu^adh that he had suspended judgment in the case of waqs and had said that he would decide after asking the Prophet (God’s peace and blessings be upon him). But when he had reached him he had found that he (God’s peace and blessings be upon him) had died. As there was no text in this the hukm was sought by analogy. Those who constructed the analogy upon camels and sheep did not consider anything to be due in waqs, while in the case of those who maintained that the principle for waqs was the imposition of zakat, unless exempted from it by an evidence, it was necessary that there be no operation of waqs in cows, as there is no evidence from consensus or from any other source.

They agreed under this topic that for sheep reared on (free) grazing one sheep is due if the number reaches forty sheep, up to one hundred and twenty. For the excess over one hundred and twenty there are two sheep up to a number of two hundred. If the number exceeds two hundred, three sheep are due up to three hundred, and if it exceeds three hundred, then, for every hundred sheep there is one sheep. This is the opinion of the majority, except al-Hasan ibn Salih, who said that if the number of sheep reaches three hundred and one the number of sheep due on them are four, and if the number is four hundred and one, five sheep are due on them. This opinion has been related from Mansur from Ibrahim. The authentic traditions related from the book of sadaqa support the opinion of the majority.

They agreed that goats are to be combined with sheep, but they differed about the category (species) from which the collector is to take zakat. Malik said that he is to take the zakat from the category which has the greater number (of animals), and if they are equal the collector has a choice. Abu HanTfa said that if the categories differ the collector is given a choice. Al- Shafi i c said that he is to take average quality animals from the different categories because of an opinion related from ‘Umar (God be pleased with him) that “we assess them for young lambs that are tended by the shepherd, but we do not take them, nor do we take sheep fattened for consumption, nor those that have given birth to offspring or those about to do so, nor the rams. We do take sheep that are.six months and those that are one or two-year-old”. This ensures a balance between choice and an average quality.

The jurists of the provinces agreed that male (billy) goats and animals that are very old or blind in one eye are not to be. accepted for sadaqa, because this has been established from the book of sadaqa, unless the collector considers them to be in the interest of the needy. Theyjdisagreed about animals that are totally blind or have a defect whether they are to be included in the count of the owner’s flock. Malik and al-Shafi T held that c they are ,to be counted, while it is related from Abu HanTfa that he did not hold that they be counted. The reason for disagreement stems from whether the unqualified term should be considered to include both the physically’sound and those that are not so.

They disagreed under this topic on whether the offspring are to be counted with the mothers in order to complete the nisab, if the flock is falling short of the nisab. Malik said that they are to be counted with them, while al-ShaficT, Abu HanTfa, and Abu Thawr said that they are not to be counted with the lambs, unless the mothers are completing the nisab. The reason for their disagreement is the saying of <Umar (God be pleased with him) when he ordered that they be counted with the lambs and nothing should be taken from them as sadaqa. A group of jurists understood that this is to be done when the mothers are completing the nisab. Another group of jurists understood this in unqualified terms. I believe that the Zahirites do not impose zakat on young lambs nor do they count them irrespective of the mothers completing the nisab, as the unqualified term for the species does not include them.

Most of the jurists maintained that co-ownership has an affect on the amount of zakat due. Those who upheld this disagreed over whether it affects the nisab. Abu HanTfa and his disciples did not consider co-ownership ,to have any effect, either on the amount due or on the amount of An explanation for this is that Malik, al-ShaficT, and the majority of the jurists of the provinces maintained that co-owners are to pay zakat as a single owner. They disagreed about this oh two points. First, whether the nisab of co-owners is to be treated as the nisab for one owner even if the share of each reaches the nisab separately, or are they to pay zakat on the nisab for each owner separately if they own the msofc individually. Second, about the description of the co- ownership that is effective in this case.

The reason for their disagreement, first, over whether co-ownership is effective in the nisab and in the amount due, is their dispute over the meaning of what is established about the saying of the Prophet (God’s peace and blessings be upon him) through the f book of sadaqa that “distinguishable categories are not to be combined nor are combined categories to be distinguished under the apprehension of zakat, and those composed of two mixed categories are to be settled jointly (or equally)”. Each group interpreted the meaning of this tradition in accordance with their own assumptions.

Those who maintained that mixed categories were effective in the determination of the nisab and the amount due, or in* the determination of the amount due alone, said that the words of the Prophet (God’s peace and blessings be upon him), “those composed of two mixed categories are to be settled jointly (or equally)” and “distinguishable categories are not to be combined and combined categories are not to be distinguished” indicate clearly that co-ownership in combined property is like the ownership of a single individual. This tradition restricts the words of the Prophet (God’s peace and blessings be upon him), “There is no sadaqa in less than five camels”. This applies either for purposes of zakat alone, according to Malik and his disciples, or both for purposes of the determination of zakat and nisab, according to al- Shafi T and his c disciples. Those who did not uphold this view of co-ownership said that the partners are sometimes referred to as co-owners, and it is likely that the words of the Prophet (God’s peace and blessings be upon him), “distinguishable categories are not to be combined and combined categories are not to be distinguished” amount to a proscription for the collector not to divide up the property of one individual in such a way that he becomes liable to excessive zakat, as in the case of the individual who has one hundred and twenty sheep and whose property is divided up into units of forty thrice, or by combining his property with- that of another so that the combined number yields more zakat. They said that if these probabilities exist in this tradition, it is better not to restrict the established and agreed upon principles with it, that is, the rule that the nisab and the amount due are to be worked out on the basis of individual ownership. Those who upheld the view based on mixing said that the term “mixing” is’better understood in terms of mixing itself rather than in the meaning of partnership, and if this is the case, then, the words of the Prophet (God’s peace and blessings be upon him), “are to be settled jointly (or equally)” indicate that the duty owed by both has the hukm of a single individual, and also that these words, “are to be settled jointly (or equally)”, imply that the mixing of two things does not imply two partners, as settlement between partners is not to be conceived here, because zakat is being taken from the capital of the partnership. Thus, those who limited their view to this meaning and did not draw an analogy for the nisab said that co-owners are to be subjected to the zakat of a single individual if each one of them possesses the nisab. Those who considered the hukm of the nisab to be dependent upon the hukm of the zakat due said that their nisab is the nisab of a single individual, just as their zakat is the zakat of a single individual.

Each group interpreted the words of the Prophet (God’s peace and blessings be upon him), “distinguishable categories are not to be combined and combined categories are not to be distinguished”, in accordance with his own views. Malik (God be pleased with him) said that the meaning of the words of the Prophet (God’s peace and blessings be upon him), “combined categories are not to be distinguished”, is that if there are two co-owners each with a share of one hundred and one sheep, their total liability would be three sheep, but if they separate each will pay one sheep. The meaning of his words, “distinguishable categories are not to be combined,” he said, is that if there are three individuals each having forty sheep, they would pay one sheep if they combined their flocks. In his opinion, then, the proscription is directed toward those co-owners each of whom possesses the nisab independently. Al-ShafiT, on the other hand, said that the meaning of the words of the Prophet (God’s peace and blessings be upon him), “combined categories are not to be distinguished”, is that if there are two persons who jointly own forty sheep, their separating their flocks would cause them not to be liable for zakat, as the nisab, in his view, is that of the co-owners, which is in its hukm like that of an individual.

Those who upheld the view based on mixing differed as to what kind of mixing is effective in The determination of zakat. Al-ShaficT said that the condition of mixing is that they mix their flocks together so that they tend them jointly, gather the milk in one place, make them graze jointly, drink jointly, and that their offsprings are also mixed up together. There is no difference, in his view, as a whole between mixing (property) and partnership, and he, therefore, considers the nisab as belonging to each of the partners, as has preceded. In Malik’s view the co-owners are those who participate in terms of contribution, drinking, grazing, shepherding, and offspring. His disciples disagreed about the observance of some of these conditions or of all of them. The reason for their disagreement stems from the equivocality in the term “mixing”, and for that reason a group of jurists did not uphold the effectiveness of mixing in the determination of zakat. This was the opinion of Abu Muhammad ibn Hazm al-AndalusT.

They agreed that the obligation of zakat for crops of rain-fed-land is one-tenth ( ushr), while z the zakat for crops of irrigated land is one-half of one-tenth, as this has been established from the Prophet (God’s peace and blessings be upon him). They disagreed about the stipulation of a nisdb for this category of zakat- wealth. The majority decided to impose a nisab in it, which was held to be five awsuq. One wasq is equal to sixty saS by consensus, and one sdS is equal to four mudd, in accordance with the mudd used by the Prophet (God’s peace and blessings be upon him). The majority maintain that the mudd used by him is one and one-third roti (rati), which, is slightly more than the one used in Baghdad. This is what was conceded by Abu Yusuf when he was confronted by Malik on the basis of the opinion of the jurists of Iraq and the testimony of the jurists of Medina about it. Abu HanTfa used to say about the mudd that it is equal to two rotis, and about the s& that it is equal to eight rotis. Abu HanTfa also said that there is no nisdb for crops and fruits.

The reason for their disagreement arises from the conflict between the general meaning and the particular meaning. The general meaning is in the saying of the Prophet (God’s peace and blessings be upon him), “That which is watered by the sky is liable to one-tenth, while that irrigated by the water­ can [human effort] is liable to one-half of one-tenth”. The particular meaning is found in the words of the Prophet (God’s peace and blessings be upon him), “There is no sadaqa in what is less than five awsuq”. Both traditions are authentic. Those who maintained that the general meaning is to be construed in terms of the particular said that there is a nisab and that is the renowned opinion. Some other jurists held that the general and the particular meanings conflict with each other here, as the one revealed prior or later in time is not known, for the particular may be abrogated by the general in their view and the general may be abrogated by the particular, and because anything that can be acted upon may be abrogated, which may be abrogation in part or abrogation in full. When these jurists preferred the general meaning they said that there is no nisab. The construction of the general in terms of the particular by the majority, in my view, belongs to the category of preferring the particular meaning over the general for that part in which they were in conflict, because the general meaning is apparent while the particular is explicit. So think over this as this is the cause which has been eliminated by the majority by saying that the general is to be construed in terms of the particular, whereas, in fact, this-is not the case. The conflict between them does exist, unless the particular were to follow the general immediately, in which case it would amount to an exemption. There is, however, a weakness in the argument of Abu HanTfa relating to (the absence of) the nisdb on the basis of the general meaning, as the tradition here has been laid down as an explanatory text for the quantity due (and not as one imposing an initial rule).

They disagreed in this topic over nisab on three issues. The first issue is about adding some of the grains to the others for completing the nisab. The second issue is about the permissibility of calculating the nisab for grapes and dates by estimation. The third issue is whether the quantity of his fruit or crop consumed by the owner prior to harvesting and threshing is to be taken into account for the nisdb.

They agreed that one category of good grain may be added199 to a lower category of grain, and zakat is to be taken from the whole in proportion to the quantity of each, that is, from the good as well as the bad quality grain. If fruit is of different quality, the zakat is to be taken from the average quality.

They disagreed about the addition of lentil of different quality one to the other and about the addition of wheat and barley and wheat extract. Malik said that lentil of different quality is to be seen as one category, as are wheat, barley, and wheat extract. Al-ShaficT, Abu HanTfa, Ahmad, and a group of jurists said that lentil comprises different categories, in accordance with their names, and one category is not to be added to another for the calculation of the nisdb. Similarly, wheat, barley, and wheat extract are three different categories, and one of these is not to be added to the other for the completion of the nisdb.

The reason for disagreement is whether consideration is to be given to the common benefit that is to be derived or to the common names. Those who maintained that common names are to be taken into account said that they are different categories if their names differ. Those who maintained that the common benefit is to be taken into account said that as long the benefit to be derived is the same, they form one category, even if the names are different. Each group sought to affirm its rule by an empirical counting of the cases provided in the law, that is, one group argued for its opinion on the basis of things in which the law has taken into account the names of categories, while the other sought support from those in which the benefits have been given importance. It appears that the law bears testimony to the consideration of names more than it does for the common benefit for purposes of zakat, though both considerations are present in the law, Allah knows best.

This issue relates to the calculation of the nisdb by estimation and accepting it without using a measure. The majority of the jurists uphold the permission of estimation in the case of dates and grapes, when they have begun to ripen, because of the necessity of releasing them for consumption to the owners when they are still moist (fresh). Dawud said that there is to be no estimation, except in the case of dates. Abu Hamfa and his two disciples said that estimation is invalid and it is up to the owner of the wealth to render one-tenth of the yield, whether it is in excess of the estimated amount or less. The reason for their disagreement comes from their dispute about the permissibility of estimation because of the conflict between the principles and the traditions reported on the issue. The tradition laid down on this is the one relied upon by the majority, in which it is related “that the Messenger of Allah (God’s peace and blessings be upon him) used to send cAbd Allah ibn Rawaha and others to Khaybar to estimate the yield of dates”. The principles that oppose this are that relying on estimation belongs to the category of (the forbidden) muzdbana^ which is the sale of fruit on trees in exchange for other measured fruit, and also because it amounts to the sale of ripe dates with fresh dates with a delay, circumstances which introduce a proscription on account of excess and delay, both of which are the bases of riba. When the jurists of Kufa took this into account along with the fact that the estimation in the case of the people of Khaybar was not for the purpose of zakat for they were not obliged to pay zakaty said that it is possible that it was an estimate to know the quantity of dates that would be available to each group of people.

The QadT (Ibn Rushd) said: The apparent implication of Malik’s tradition is that it (estimation) was for purposes of division, because of the report that <Abd Allah ibn Rawaha, when he had finished estimating, said: “If you like this part is for me and if you like it is for you”, that is, it was in the case of fruit not grains. The tradition of cA5isha, on the other hand, which has been related by Abu Dawud, states that the estimation was for purposes of the share that they were obliged to pay. The tradition is that she said, while mentioning the case of Khaybar, “that the Prophet (God’s peace and blessings be upon him) used to send cAbd Allah ibn Rawaha to the Jews of Khaybar, and he estimated the dates for them when they began to ripen and before they began to consume them”. Estimation, however, has not been recorded by the two shaykhs, al-BukharT and Muslim. In whichever way estimation is established, it would be an exemption from these principles, and this if it is established that it was a hukm from the Prophet (God’s peace and blessings be upon him) for the Muslims, for if the hukm is established for the Ahl al-Dhimma it does not raise the obligation of a hukm for the Muslims, except on the basis of an evidence, Allah knows best. If the tradition of cAttab is authentic, the hukm of estimation would be clear, Allah knows best. The tradition of cAttab ibn Usayd is that he said, “The Messenger of Allah (God’s peace and blessings be upon him) ordered me to estimate the grapes and to collect zakat in the form of raisins, just as the zakat of dates on trees is taken in the form of tamr (dried dates)”. The tradition of <Attab ibn Usayd has been objected to on the ground that one of the narrators in it is SacTd ibn al-Musayyab, and he could not (possibly) transmit from him. This was the reason that Dawud did not permit the estimation of grapes. Those who imposed zakat on olives differed about the permissibility of estimation of olives. The reason for their disagreement stems from their dispute about the analogy drawn for them from dates and grapes. The category in which zakat is to be paid, in the case of fresh dates, is preserved dates (tamr) and not fresh dates. Similarly, the payment for grapes is in the form of raisins, not in grapes themselves. Likewise, the payment, in the view of those who uphold zakat on olives, is to be made in olive oil and not in the fruit on the basis of the analogy with tamr and raisins. About those categories of grapes that cannot be dried and those olives that cannot be pressed Malik has maintained that payment be taken in the form of the fruit.

Malik and Abu HanTfa said that the person who consumes from his fruit or from his crops before harvest is to be held accountable for the amount consumed for purposes of zakat. Al-ShafiT said that this is not to be included against him and the estimator is to set aside a part that may be consumed by the owner and his family.

The reason for disagreement arises from the conflict of a tradition with what is in the Qur’an and also with analogy. The sunna in this is in what is related by Sahl ibn AbT Hathma “that the Prophet (God’s peace and blessings be upon him) sent Abu Hathma as an estimator. A man later came and said, ‘O Messenger of Allah, Abu Hathma has left me an excess.’ The Messenger of Allah (God’s peace and blessings be upon him) said, ‘The son of your uncle believes that you have left him an excess?’ He said, ‘O Messenger of Allah, I left him an amount that will be given out by his family, an amount from which he will feed the needy, and an amount that will be wasted by the wind.’ He said, ‘The son of your uncle has left you an excess and has done justice to you’”. It has also been related that the Messenger of Allah (God’s peace and blessings be upon him) said, “When you make an estimate leave a third, and if you cannot do that, then, leave a fourth”. It is related from Jabir that the Messenger of Allah (God’s peace and blessings be upon him) said, “Be lenient in estimation, as the wealth (orchard) contains the 'ariyya, the akila (birds and insects consuming fruit), the wasiyya (rights pertaining to bequests), the right of workers and the deputies, and the claims that are made on the fruit”. The text of the Qur’an that may appear to conflict with this tradition and analogy, are the words of. the Exalted, “Eat ye of the fruit thereof when it fruiteth, and pay the due thereof upon the harvest day”.200 The analogy (from this) is that it is wealth that is liable to zakat and the basis for this is the remaining wealth (after consumption).

These, then, are the well-known issues related to the amount that is due in zakat and to the three categories that are liable to it, from which the payment is to be made in their own kind. They did not disagree that if zakat is paid in the same kind it is valid, but they disagreed on whether it was permitted to make the payment with a substitute for the original by value.

Malik and al-Shafi T said that c payment according to value is not permitted in zakat as a substitute for that expressly stated in the texts. Abu HanTfa said that it is permitted, irrespective of the owner’s ability to make the payment in the expressly mentioned categories. The reason for their disagreement stems from the dispute as to whether zakat is a form of worship or a.right due to the needy. Those who maintained that it is a form of worship said that if the person makes the payment with something other than the substance of the category his act is not valid, because worship performed in a way different from the one prescribed is invalid. Those who maintained that it is a right of the needy saw no difference between the thing itself and its value. The Shafifites said that*even if the right of the needy is conceded the Lawgiver has suspended the claim upon the thing itself and' which is satisfied by joint participation of the poor and the rich in the thing itself. The Hanafites say: “The things constituting the wealth have been specified as a convenience for the owners of wealth, as it is easy for each owner of wealth to make payment from the kind of wealth that he possesses”. It is for this reason that in some of the traditions it is laid down that he (the Prophet) determined that the payment of diya (blood-money) be made in the form of credits for those who possess them, as will be coming up in the book of hudud.

The nisab for goods, according to the opinion of those who uphold it, is constituted by the goods acquired for sale especially what is held prior to the payment of zakat. The nisab for them is based on the commodities as it is these that represent the value of consumable things and the capital. Likewise, the hawl (passage of a year) for goods, according to those who imposed zakat on goods. Malik said that if a person sells goods he is liable for zakat once a year, as is the case with debts. This is for traders who record the timings for the purchase of their goods. The traders who do not record the timings for what they sell and buy, and who are referred to by the term mudir (the active trader like the shopkeeper). The hukm in Malik’s view is that when a period of one year passes from the time of the commencement of their trade they should determine the value of the goods they hold (inventories). To this is added the value of the things they possess (assets) and their wealth in terms of loans they hope will be repaid (accounts receivable), that is, if they do not have similar debts that they owe (accounts payable), and this is different from his opinion about the mudir. If the sum of all this that they possess reaches the nisab they are to pay zakat on it, whether during the year they were able to convert a thing to liquid assets (cash) or whether such conversion amounted to the nisab. This is the narration of Ibn al-Majishun from Malik. Ibn al-Qasim has related from him that if he does noLhave liquid assets (cash) and he trades with goods (barter), there is nothing to be paid on the goods.

Thus, some of the jurists did not stipulate the existence of liquid assets in his possession, while some did stipulate it. Those who stipulated this considered a for the goods, while those who did not stipulate it did not take the nisab into account. Al-MuzanT said that zakat on goods is based on the things themselves (cost) not on their prices. The majority—al-ShafiT, Abu Hamfa, Ahmad, al-ThawrT, al-Awza T, arid others—said that c the hukm for the mudtr and others is the same, and that the person who purchases goods for the purpose of trade evaluates his goods after the passage of the hawl and pays zakat on them accordingly. Some said that he is to pay zakat on the basis of the price at which he purchased the goods (cost price) and not on their value (book value or market value).

The majority did not stipulate anything for the mudtr as the hawl has been stipulated for the things and not for their species. Malik, however, compared the species to the things themselves so that the liability for zakat is not removed entirely from, the mudtr. This amounts to additional law, and it appears to be derived from the established law. Cases like this are referred to as qiyas mursal, which is a law that does not rely on an evidence that is expressly stated in the law, but is understood from the jurisprudential interests found in it. Malik, may Allah have mercy on him, used to consider interests (masdlih) even when they were not based on a specific text.