The Distinguished Jurists Primer by Ibn Rushd

A comprehensive discussion191 of this form of worship, after the determina­ tion of its obligation, is covered in five chapters. The first chapter is about the persons on whom it is obligatory. The second chapter deals with* the identification of the kinds of wealth on which it is imposed. The third chapter is abour the identification of the rates and the amounts on which it is levied. The fourth chapter is about the identification of the periods during which it is levied and the periods in which it is not. The fifth chapter is about the identification of the persons for whom it is to be paid and of the amounts due to them.

The determination of its obligation through the Qut°an, the sunna, and from ijm# (consensus) is well-known, and there is no dispute about this.

They agreed that it is obligatory upon every Muslim who is free, bdligk, sane, and who owns wealth equal to the (minimum) prescribed scale (nisdb) through a complete (unencumbered) ownership. They disagreed about its obligation upon the orphan, the insane, the slaves, the ahi al-dhimmay and the person with deficient (encumbered) ownership like a person who is in debt or is a creditor, or when for example the capital (of the wealth) is held in a trust (habs, waqf}.

With respect to minors, one group said that zakat is obligatory on their wealth. This was the opinion of ‘AIT, Ibn ^Umar, Jabir, and cA?isha from among the Companions, and of Malik, al-Shafi T, al-ThawrT, Ahmad, c Ishaq, Abu Thawr, and others from among the.jurists of the provinces. Another group said that there is no zakat at all on the wealth of the minor. This was the opinion of al-Nakha'i, al-Hasan, and SacTd ibn Jubayr from the Tabi un. One group of jurists made a distinction between the yield of c the land and wealth not derived from the land. They said that there is zakat on the yield from the land, but there is no zakat on what is besides this like cattle, liquid assets, goods (chattel). This was the opinion of Abu Harnfa and his disciples. Yet another group distinguished between liquid assets and other things saying that there is zakat on the wealth except on liquid assets.

The reason for their disagreement over the persons on whom zakat is t obligatory arises from their dispute over the nature of the legal form of zakat, whether it is a kind of worship like prayer and fasting or whether it is an obligatory right of the poor over the rich. Those who said that it is worship stipulated bulugh of the person as a condition (for the obligation), while those who said that it is an obligatory right of the poor and the needy over the wealth of the rich did not take into account bulugh of the person, among other things. Those who made a distinction between the yield of the land and what is not derived from it, and also between visible and invisible wealth, for them I am not aware at this time of the evidence relied upon.

Most of the jurists agree that there is no zakat on all categories of the ahi al- dhimma, except what is related by a group about the imposition of zakat for the Arab Christians of Banu Taghlab, I mean, for example, that an amount should be taken from them equal to what is taken from the Muslims on all things. Those who held this opinion include al-ShaficT, Abu Harnfa, Ahmad, and al-Thawri. There is no narration of an opinion from Malik on this. These jurists came to this decision on the basis of what TJmar ibn al-Khattab decided for these people, and it appears that they considered this to be a precedent, but the principles conflict with it.

The jurists are divided on the question of the obligation of zakat on slaves. There are three opinions. One group said that there is no zakat at all on their wealth. This is the opinion of Ibn TJmar and Jabir from among the Companions and of Malik, Ahmad, and Abu TJbayd from among the jurists. Another group said that, in fact, zakat on the wealth of the slave is levied on the master. This was al-ShaficFs opinion as related by Ibn al-Mundhir, and of al-Thawri, Abu Harnfa, and his disciples. A third group imposed zakat on the slave for his wealth. This is related from Ibn TJmar (again) from among the Companions, and it was the opinion of cAta” from among the Tabicun, and of Abu Thawr, the Zahirites, and some others from among the jurists. The majority of those who said that there is no zakat on the wealth of the slave also maintained that there is no zakat on the wealth of the mukdtab until he is free. Abu Thawr, however, held that there is zakat on the wealth of the mukdtab.

The reason for their disagreement over zakat on the wealth of the slave is based on their dispute over whether the slave owns his wealth through a complete ownership or whether this is deficient. Those who maintained that his ownership is deficient and it is the master who is the owner, as his wealth cannot be separated from that of the master, said that the zakat is due from the master. Those who maintained that zakat is to be imposed on one of the two persons who owns it through a complete ownership said that this person is not the master for the wealth is in the possession of the slave not in that of the master, and it is also not the slave’s for -the master has the right to take it away from him. They, therefore, held that there is no zakat at all on the wealth of the slave. Those who maintained that possession of the wealth determines the incidence of zakat, because of the right of disposal in it on the analogy of the right of disposal of a free man, said that the zakat is to be imposed on the slave, especially in the view of those who held that the general communication of the law includes both free men and slaves and that the payment of zakat is a worship that relates to the,subject (mukallaj) because of his right of disposal in the wealth.

The jurists disagreed about those owners (of wealth) who are in debt, and whose debts are greater than their wealth, or they cover an amount on which zakat can be levied while they have in hand wealth on which zakat is due. A group of jurists said that there is no zakat on the wealth, whether it is in the form of grain or something else, unless the debts are deducted from it. If the remaining amount (after payment of debts) reaches the minimum amount which is subject to zakat, it is to be paid otherwise not. This was the opinion of al-ThawrT, Abu Thawr, Ibn al-Mubarak, and a group of jurists. Abu HanTfa and his disciples said that debts do not ward off zakat on grain, but they do prevent it on other kinds of wealth. Malik said that debts prevent zakat on liquid assets alone, unless these include goods that can pay off the debt, in which case zakat is not prevented. A group of jurists maintained, in contrast to the first view, that debts do not prevent zakat at all.

The reason for their disagreement (again) stems from their dispute on whether zakat is a form of worship or a right assessed on the wealth for the needy. Those who maintained that it is a right due to needy said that there is no zakat on the wealth of a person who is burdened with debt, as the right of the creditor is prior, with respect to time, to the right of the needy, for the wealth in reality is owned by the creditor and not the person who has possession over it. Those who maintained that it is worship said that it is to be levied on the person who has possession of it, as that is the basis of liability (takltf) and a criterion for imposing the obligation on the subject irrespective of his being in debt. Further, there is a conflict here between two kinds of rights, the right of Allah and the right of man, and the right of Allah has a higher priority for being met. Yet the dropping of zakat in the case of the debtors is closer to the purposes of the (divine) law, because of the words of the Prophet (God’s peace and blessings be upon him), “(It comprises) a charitable donation that is acquired from the wealthy and granted to the poor”, and debtors are not wealthy. Those who distinguished between grain and other kinds of wealth, and between liquid assets and tied assets, for them I cannot find a clear analogy. Abu cUbayd used to say that if it cannot be known whether the person has a debt, except by his own claim, he is not to be considered truthful, but if it can be known (through other means) zakat is not to be levied on him. This does not contradict the opinion of those who maintain that zakat is to be dropped because of debt, in fact, it contradicts those who maintain that he is to be considered truthful for claiming a debt just as he is deemed truthful in stating the amount of his wealth.

The wealth that exists as a liability, that is, as a liability upon someone else (credit), and is not in the possession of the owner, is also a debt, and about this too they differed. A group of jurists said that there is no zakat on this even when it returns to the hands of its owner until the conditions of zakat are met while it is with the possessor, and this is the passage of a year (hawl) while it is in his possession. This is one of the two opinions of al-ShaficT, and it was maintained by Abu Thawr or is derivable by analogy from his views. Another group of jurists said that if he comes to possess it he is to be charged for the past years (for which it stood unpaid). Malik said that he is to be charged zakat for a single hawl (year), even if it has stayed with the debtors for a number of years, in case the principal has been given in return for compensation. If it was not linked to compensation, like inheritance, then the hawl begins from the moment of possession. There are a number of details about this in the School (Malik’s).

In this topic there is also their dispute about zakat on fruit when the trees belong to a trust, and about the land held on a tenancy, as to who is liable for the zakat on the yield, whether it is owed by the landlord or the .tenant. There is also their disagreement over kharaj land when it is transferred from those liable for kharaj to the Muslims, who are liable for <ushr. Then there is the dispute over <ushr land when it is converted to kharaj land, that is given to the ahi al-dhimma. It appears that the reason for dispute over all this is due to the fact that these are deficient forms of ownership.

This issue relates to fruit from trees, when, the trees are the property of a trust. Malik and al-Shafi T used to impose zakat c on them, while Makhul and Tawus used to say that there is no zakat on them. A group of jurists used to make a distinction when the trees were a trust for the needy generally or for a specified group. They imposed zakat on them when the beneficiaries were a determined (specified) group, but they did not do so when the beneficiaries were the needy generally. There is no justification in imposing the zakat on the needy as two disqualifying factors operate in this: first, it amounts to a deficient ownership, and second, the needy are an indeterminate category of people on whom the zakat funds are to be spent and not those from who it is due.

The second issue relates to land given out on rent. It deals with the question as to who is liable for zakat on the yield of this land. A group of jurists said that the zakat is to be levied on the tenant, who is the owner of the plants. This was the opinion of Malik, al-Shafi T, al-ThawrT, Ibn al-Mubarak, Abu Thawr, c and a group of jurists. Abu HanTfa and his disciples maintained that zakat is due from the owner of the land and the person who rents it from him does not owe anything.

The reason for their disagreement arises from the question of whether hishr is a duty related to the land or to cultivation or to both. No one has said that it is a duty related to both when, in fact, it is a duty related to both. They agreed that it is a duty incumbent upon one of the two, but they disagreed on which one has precedence for being associated with a point on which there is agreement, and that is the occasion when the crop as well as the land belong to a single owner. The majority maintained that it is related to the thing from which zakat is to be paid, and that is grain (or the yield). Abu HanTfa maintained, however, that it is related to the thing that is the basis of the obligation, and that is land.

With respect to their dispute over kharaj land, when it is transferred to the Muslims, as to whether hishr is imposed on it along with kharaj or whether there is no zushr, the majority maintained that-there is ^ushr, that is, zakat, while Abu HanTfa and his disciples held that there is no hishr on it. The reason for their disagreement stems, as we have said, from the question of whether zakat is a duty related to the land or to the crop. If we maintain that it is a duty related to the land, then, two duties cannot be linked to it at the same time, and these are hishr and kharaj. If we maintain that zakat is linked to the crop, then, kharaj would be assigned to the land and zakat to the crop. This dispute arises because the ownership is deficient as we have stated and it was because of this that the jurists disagreed over the sale of kharaj land. If, however, hishr land is transferred to a dhimmi who cultivates it, the majority maintain that there is no liability on him. Al-Nucman held that when the dhimmi buys bishr land it is converted into kharaj land. It appears that he considered zushr to be a duty owed on Muslim land and he considered kharaj to be a duty owed on the land of the dhimmis, but on the. basis of this rule it was necessary for him to say that if the kharaj land was transferred to the Muslims it would be converted to Htshr land, just as in his view if the *ushr land was transferred to a dhimmi it would be converted to kharaj land.

There are sub-issues related to the owner of wealth the discussion of which is suitably placed is this section. The first of these is (the situation) when a man sets aside zakat but it is lost. Second, when the setting aside of zakat is possible but when part of the wealth is destroyed before zakat is set aside. Third, where the owner was under an obligation to pay zakat, but died before paying it. Fourth, who is to pay zakat if he sells off the crop or fruit on which zakat was due, and similarly when he gives it away as a gift.

This (issue) deals with the problem where the owner sets aside zakat and it is lost. A group of jurists said that he is to be given credit for it. Another group said that he is liable for it till he delivers it to its location. A third group made a distinction between his setting it aside later than when it was possible to do so and between setting it aside (promptly) at the beginning of the time when the obligation arises and when it is possible to do so. Some of these jurists said that if he sets it aside some days after the time at which the obligation arises and the possibility to do so, then he is liable but if he sets it aside at the first moment obligation arises and there was no negligence on his part he is not liable. This is a well-known opinion in Malik’s school. A fourth group of jurists said that if there was negligence on his part he is to compensate for it, but if he was not negligent he is to pay zakat on the remainder alone. This was the opinion of Abu Thawr and al-ShaficT. A fifth group said that what has been lost is to be counted as a loss for all parties, and the needy people as well as the owner are to be considered co-owners in proportion to their shares in the remaining wealth, as (is the case) with two partners when part of the common capital is lost but remain partners in the residue in the same ratio. Thus, we arrive at five opinions on the issue: first, that he is not to compensate for the loss at all; second, that he always compensates; third, that he compensates if he was negligent, but does not if he was not negligent; fourth, that he compensates if he was negligent and pays zakat on the residue if he was not; and fifth, that they (the owner and the needy) become partners in the remaining wealth.

This (issue) deals with the problem where the owner sets aside zakat and it is lost. A group of jurists said that he is to be given credit for it. Another group said that he is liable for it till he delivers it to its location. A third group made a distinction between his setting it aside later than when it was possible to do so and between setting it aside (promptly) at the beginning of the time when the obligation arises and when it is possible to do so. Some of these jurists said that if he sets it aside some days after the time at which the obligation arises and the possibility to do so, then he is liable but if he sets it aside at the first moment obligation arises and there was no negligence on his part he is not liable. This is a well-known opinion in Malik’s school. A fourth group of jurists said that if there was negligence on his part he is to compensate for it, but if he was not negligent he is to pay zakat on the remainder alone. This was the opinion of Abu Thawr and al-ShaficT. A fifth group said that what has been lost is to be counted as a loss for all parties, and the needy people as well as the owner are to be considered co-owners in proportion to their shares in the remaining wealth, as (is the case) with two partners when part of the common capital is lost but remain partners in the residue in the same ratio. Thus, we arrive at five opinions on the issue: first, that he is not to compensate for the loss at all; second, that he always compensates; third, that he compensates if he was negligent, but does not if he was not negligent; fourth, that he compensates if he was negligent and pays zakat on the residue if he was not; and fifth, that they (the owner and the needy) become partners in the remaining wealth. The reason for their disagreement stems, from the comparison between zakat and debts, that is, the duty is associated with liability and not with the substance of the wealth, or it is its comparison with duties that are related to the substance of the property not with the liability of the person who is in possession of the wealth, as in the case of trustees and others. Those who considered the owners of wealth to be similar to the trustees said that if he sets it aside and it is lost there is nothing due from him. Those who considered them similar to debtors said that they are to compensate (for the loss). Those who made a distinction on the basis of negligence, and the absence of it, associated them with trustees from all aspects, as the trustee compensates (for the loss) in case of negligence. Those who maintained that if he was not negligent he is to pay zakat on the residue compared the person who had lost part of his wealth after setting aside zakat with one who had lost part of his wealth before the commencement of the obligation; just as that person pays zakat at the time of the obligation on what exists with him, this person will pay zakat on what exists with him. The reason for the disagreement arises from the variation in the association of the owner with a debtor, a trustee, a partner, and with one who has lost part of his wealth before the obligation.

If, however, zakat became due and he was able to set it aside but did not do so till part of his wealth was lost, the jurists agreed, as far as I know, that he is liable except in the case of cattle, according to those who hold that the condition for their obligation is the arrival of the zakat collector after the hawl y and this is Malik’s opinion.

This relates to the person who dies after the commencement of the obligation • IQ?

of zakat. A group of jurists said that it is to be taken out from his capital. This was the opinion of al-ShaficT, Ahmad, Ishaq, and Abu Thawr. Another group said that zakat is to be paid only if he leaves a testament to the effect that it is to be paid from his estate. In that case, it is to be taken out from the third of the estate. Otherwise nothing is due. Some of these jurists said that zakat is to be satisfied first if it is as much as the third or is less than that, while others said that it is not to be satisfied first. Both opinions are narrated from Malik, but the well-known opinion is that it is to be treated as a bequest.

With respect to their disagreement about wealth that is sold after zakat has become due on it, a group of jurists said that the person from whom zakat is due (the seller) may take the zakat from the wealth itself, and the buyer is to have recourse to the seller for its value. This was the opinion of Abu Thawr. Another group of jurists said that the sale is rescinded, and this was al-Shafic?s opinion. Abu HanTfa said that the buyer has an option between .the execution of the sale or its revocation, and the hishr is to be taken from the fruit or from the grain on which zakat was due. Malik said that the seller is liable for the payment of zakat.

The reason for their disagreement arises from the comparison of the sale of the property with its loss and destruction. Those who considered them similar said that zakat is the liability of the person destroying the property or causing its loss. Those who maintained that sale does not amount to destruction of the substance of the wealth nor its loss, but amounts to sale by a person of what does not belong to him said that zakat is linked to the substance of the wealth. Whether the sale is to be rescinded is a separate discussion that will be taken up in the section on sales, God willing. Their dispute about zakat on wealth that has been alienated by a gift is of a similar nature.

In some of these issues that we have mentioned there are detailed discussions in the School that we have not deemed proper for presentation here, as that is not compatible with our aim. Further, it becomes difficult to give the reasons for these distinctions, because most of them - are based on istihsdn, like their discussion of the details of debts that are liable for zakat and those that are not, and debts that cause a waiver of zakat and those that do not. This, then, is what we considered should be mentioned in this chapter and it relates to the identification of the person from whom zakat is due, to the conditions of ownership with which it becomes due, and to the ahkam of the person from whom it is due.

One well-known hukm from among the ahkam of such a person remains and that relates to the question as to what is the hukm of the .person who refuses to pay zakat, but does not deny its obligation.

Abu Bakr (God be pleased with him) said that his hukm is that of the apostate. This is how he ruled in the case of those Arabs who refused to pay za^/-(after the death of the Prophet), and he fought with them and made their children captive. He was opposed in this by TJmar (God be pleased with him) who freed those of them who had been made captive. The majority adopted TJmar’s view. A group decided to impute disbelief to those who refused to perform any of the religious obligations although they did not deny their being obligatory.

The reason for the disagreement stems from whether the term “faith (fintfrt)”, which is the opposite of disbelief, can be applied to mean-belief alone without practice, or whether the existence of accompanying practice is one of its conditions. Some of them held that one of its conditions is accompanying practice. Some did not stipulate this even when the person did not fender verbal testimony (shahada) for it. If he merely considered it to be true, he was considered to be a believer (mifmiri) in the sight of Allah. The majority, and these are the Ahl al-Sunna, maintained that acts (practice) are not to be stipulated in it, that is, for the conviction of faith the opposite of which is disbelief, except the pronouncement of shahada, because of the words of the Prophet (God’s peace and blessings be upon him), “I have been commanded to fight the people until they say Id ilaha illalldh, and then believe in me”. Thus, he stipulated speech with knowledge (of faith), which is a kind of act. Those who held the remaining obligatory acts to be similar to speech said that all the obligatory acts are a condition for the knowledge that is faith. Those who considered speech to be the same as the remaining acts, about which the majority agreed that they are not a condition for the knowledge that is faith, said that confirmation (by words) alone is a condition for faith, and with that his hukm becomes, in the sight of Allah, the hukm of a believer (mimin'). The (other) two views are deviant, and the exemption from all the acts by two pronouncements of the shahada is what the majority uphold.