5.1 Chapter One The Role Of The State

5.1 Chapter One The Role Of The State - Fiqh Al Zakah | Quran Course

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5.1 Chapter One The Role Of The State

by Dr. Yusuf al Qardawi20 min readViewed 148 times

State responsibility with regard to zakah

As a confirmed obligation from God, zakah is not merely a charity left to individuals to implement, nor is its fulfillment dependent on the benevolence of the wealthy. Zakah is rather a social welfare institution supervised by the state, and an organized tax administered by an autonomous public organization.

The state's role in the collection and distribution of zakah is best supported by the verse that mentions "the workers on zakah"1 as one of the categories to whom zakah is distributed. This verse is explicit evidence that there should be a specialized organization with workers who derive their incomes from the budget of this organization. Moreover, God says, "Out of their wealth take a sadaqah so thou might purify and sanctify them".2 "Take" is addressed to the Prophet as head of the Islamic state, to the extent that when Abu Bakr succeeded the Prophet (p) as head of state, he continued using state authority and its law enforcement body to collect and distribute zakah. Scholars recognize that the verb "take" in the above verse is addressed to the Prophet (p) and to whoever runs the affairs of Muslims after him.

As for Sunnah, there are sayings that confirm that administering zakah is one of the responsibilities of the Islamic state. Al Bukhari, Muslim and others report from Ibn 'Abbas that the Prophet told Mu'adh when he sent him to Yemen, "Inform them that God obligates sadaqah on their wealth, to be taken from the rich among them and rendered to the poor among them. If they obey you in that, carefully avoid their dear wealth . . . " This saying indicates that zakah is taken from the rich and rendered to the poor by the state. Al Hafiz Ibn Hajar says, "This saying is evidence that the state is the authority that takes zakah and distributes it. Those who refuse to pay are forced to do so."

The above mentioned verses, sayings and opinions of Companions indicate that in principle, zakah must be administered by the Islamic government. It is an important responsibility of the Islamic state and the public zakah organization.

One may ask, if the purpose of religions is to awaken human conscience, enlighten people with truth, and induce them to behave ideally by the drives of love of God or fear of His punishment, why should Islam interfere with the organization of society instead of leaving this to political authorities? Our answer is that this may be relevant to religions other than Islam, but Islam is both creed and system, moral values and laws, a guiding book and an organized state.

From the point of view of this religion, human beings cannot be dissected into departments, one for religion and the other for worldly life, nor can life itself be partitioned into allegiance to Caesar and separate allegiance to God. Life is one unit; so is the human being; so is the whole universe, all submitting to God, the One and Mighty. Islam brings forth comprehensive and universal guidance which gives liberty and dignity to the individual as well as betterment and happiness to society. Within this unified framework, the system of zakah is enacted assigning the collection and distribution to the state. Islam implants the desire to pay zakah in the hearts of believers while entrusting the state with zakah collection and distribution, for the following important reasons:

Firstly, some individuals may not have vivd consciences that force them to fulfill this obligation. In such cases, the right of the poor would be lost if zakah payment were left to individuals.

Secondly, when poor persons receive their right from the government and not directly from the rich, their dignity is preserved and there is no possibility of their humiliation in front of the payer.

Thirdly, if the distribution of zakah is left to individuals, it is bound to come out uneven, since each individual always has his or her personal grasp of the rules of distribution.

Fourthly, deservants include public interests such as softening hearts, fight for God's sake, or calling for Islam, that can only be determined by authorities who have an overall vision of the whole society and its major needs.

Fifthly, Islam is both a religion and a state, and the state needs funds to play its role.

Zakah is one of the financial resources of the Islamic state.18

Jurists usually divide zakatable assets into two groups. Apparent assets are those that are visible and can easily be counted by people other than the owner. They include agricultural crops and livestock. Non-apparent assets are those that can easily be hidden away by the owner. They include money and business assets.

As for apparent assets, jurists agree almost unanimously that the collection and distribution of their zakah must be undertaken by the state. Their zakah should not be left to individuals, especially since we have many reports that the Prophet (p) sent his collectors to take zakah on these assets. It is obvious that the state is responsible for enforcing this collection and must fight, if necessary, those who refuse to pay this zakah, as Abu Bakr did after the death of the Prophet.20

As for non-apparent assets, it is agreed that the state has the right to collect and distribute their zakah. However, jurists have several opinions about enforcing its payment to the government.

Hanafites argue that zakah on non-apparent assets should be left to the owners to distribute. They add that although in principle, the state has the right to administer this kind of zakah,21 since the time of 'Uthman this task has been assigned to owners of wealth. This assignment does not eliminate the stats's authority to supervise payment of zakah on non-apparent assets. If the state is informed that owners of wealth in certains areas do not pay zakah on their non-apparent assets, its payment can be enforced by the public law inforcement authority.22 Zakah on trade assets may be collected by the state if they are being transported from one place to another, but if trade assets are not transported, they are treated like other non-apparent assets.23

Malikites argue that zakah must be given to a just government without differentiation between apparent and non-apparent assets.24 If the state is just only in the matter of zakah collection and distribution and is unjust in other affairs, some Mailikites argue that all zakah must still be paid to the state. These include al Dardir, as stated in his al Sharh al Kabir. Al Dusuqi in his commentary does not agree. Al Qurtubi says, "If the government is just with regard to zakah collection and distribution, owners are not justified in distributing zakah on money independently, although some say the distribution of zakah on money is the responsibility of the owners. Ibn al Majashawn adds, "Distribution to the poor and needy by zakah payers may be acceptable, but individuals should not be allowed to distribute on the other categories of deservants.

Such distribution must only be made by the state.

Shafi'ites believe owners are allowed to distribute due zakah on their non-apparent assets independently. As for the apparent assets, the prominent view in the Shafi'ite school is that their zakah may also be distributed by the payer. The other opinion is that it must be given to the government. Some Shafi'ites argue that zakah on apparent assets must even be given to the in just government. It is, however, agreed upon by all Shafi'ites that when the government carries out the task of collecting zakah on apparent assets, this zakah must be paid to the government. If the government does not carry out this responsibility, owners have the right to distribute zakah on their apparent assets themselves. Al Mawardi argues that distribution of zakah on non-apparent assets must, in principle, be left to payers, who, however, have the right to surrender this authority to the government. Al Nawawi adds that the government also has the right to see that owners are actually fulfilling this obligation, and to demand payment to the state in case owners of non-apparent assets do not distribute their due zakah.26

Hanbalites believe giving zakah to the government is not obligatory, although the government has the right to undertake this task. They do not differentiate between apparent and non-apparent assets or between just and unjust states. On the other hand, Hanbalites agree that payers are allowed to distribute their zakah by themselves. Ibn Qudamah argues in al Mughni that it is preferred for the zakah payer to distribute his or her zakah by himself, so as to be sure it is given to true deservants, no matter whether it is on apparent or non-apparent assets. Ahmad says "I would like the payer to distribute his due zakah although it is permissible to give it to the government.

Makhul, al Hasan, Sa'id bin Jubair and Maimum believe the owner should distribute zakah himself. Al Thawri even allows the owner to cheat the government so as not to give it the due zakah, while 'Ata' says it is all right to surrender zakah to the government "if you know it is going to be distributed justly." Ibn Qudamah adds "Distribution of zakah by the owner guarantees that it will be given to true deservants, in addition to saving the amount paid to zakah workers. On the other hand, collectors and distributors of zakah are not necessarily above betraying the trust placed in them, and in any cases, zakah may not reach the neighbours and kin of the payer, who deserve the payer's grace more than anybody else."27

Zaidis believe the responsibility of collecting and distributing zakah belongs to the government alone, regardless of whether assets are apparent or not. If there exist a just government, the owner has no right to distribute zakah on his own. Their view is based on their understanding of the verse that addresses the Prophet "Out of their wealth take .

. . " and the saying that zakah is "taken from the rich . . ." and by the fact that the Prophet and his Successors sent zakah collectors. They add that if the government collects zakah and a person decides to distribute his zakah by himself, he is required to make another payment of zakah to the government, even if the person was not aware that the government collects zakah.28 If there is no Islamic government, or the zakah payer is not under its authority, the payer must distribute zakah independently.29

Abadis argue that the responsibility of collecting zakah is the government's. They agree with Zaidis that if a person distributes his own zakah while the government takes responsibility for collection, this person is required to make another payment of the due zakah to the government.30

Al Sha'bi, al Baqir, Abu Razin, and al Awza'i believe the government has the exclusive right to collect zakah, because it has better means of knowing deservants.

They add that Ibn 'Umar used to give his due zakah to collectors sent by the rulers of the time; Ibn al Zubair sometimes, and Najdat al Haruri some other times, and that Suhail bin Abi Saleh asked Sa'd bin Abi Waqqas, "I have wealth and I want to give its due zakah, and you see these rulers, the way they are. What should I do? "Sa'd answered, "Give it to them." Suhail adds, "I went to Ibn 'Umar, Abu Hurairah, and Abu Sa'id, and they answered me the same." A similar opinion is reported from 'A'ishah.31

Before I select one of these opinions, I should mention that almost all jurists agree on two points. Firstly the Islamic state has the right to collect and distribute zakah on any and all assets, apparent and non-apparent. This right is emphasized if there exists suspicion that people are not so eager to pay their zakah by themselves. Some jurists even state that all differences with regard to the role of the state arise about the case in which the government does not administer zakah, but when it does, those jurists claim there is ijma' on the obligation of giving zakah to the state.32 Even those who disagree, accept the principle that once zakah collection is carried out by the state, zakah must be given to the state, because it is a disputed issue and any disputed issue can be settled by a political decision like legal disputes that are decided by court judgements.33 The second point of agreement is, if the state neglects zakah collection, owners of assets must distribute their own zakah. This is based on the fact that zakah is a form of worship and a religious obligation that must be fulfilled by each individual, to the extent that if a government dares to exempt people from paying zakah, Muslims must distribute their own zakah independently.

Once these two points of unanimous agreement are understood, we can look at differences about whether the government has the authority to collect zakah on non-apparent wealth. It seems to me from examining texts on zakah collection and the authority of the Islamic state, that texts make no distinction between apparent and non-apparent wealth. It is stated that the Islamic state is required to administer both zakah collection and distribution, without any exceptions. This understanding is supported by the following points:

A. Al Razi in explaining the verse "Sadaqat are only to the poor . . . " says," This verse indicates that the government and its representatives are the authority responsible for collecting and distributing zakah, especially since God assigns a share to zakah workers. This means workers are needed to fulfill this obligation. Workers are appointed by the Islamic government. Thus, the government is the authority that collects zakah.

This is emphasized by the verse which reads, 'Out of their wealth take a sadaqah . . .' Jurists who permit the owner to distribute his zakah on non-apparent wealth find supportive evidence elsewhere, such as in the verse 'And in their wealth there exists a right for he who asks and he who is deprived,' on the grounds that since this right belongs to the needy and the deprived, it may be given to them directly by the owner of the wealth."34 In my opinion, this last sentence of al Razi is not acceptable, since it also applies to apparent items, and there is overwhelming evidence and agreement that the state collects and distributee zakah on apparent items.

B. Ibn al Humam, a Hanafite, says "It is evident that the verse 'Out of their wealth take a sadaqah' requires that the right of collecting all zakah belongs to the Islamic government. This was the fact at the time of the Messenger of God (p) and his first two successors. When 'Uthman was elected, he did not like to search for peoples non-apparent wealth, so he left the payment of zakah on such wealth to the owners themselves. The other Companions did not quarrel with him about this. This certainly does not eliminate the state's right to collect zakah, since if it becomes known that certain people do not pay their due zakah on non-apparent items, the state reserves the right to enforce payment of zakah to the state treasury."35

C. Abu 'Ubaid, al Tirmidhi, and al Daraqutni report that "the Prophet (p) once appointed 'Umar as zakah collector, 'Umar asked al 'Abbas for the amount of zakah due on his wealth. Al 'Abbas answered, 'I have pre-paid, to the Messenger of God (p), the sadaqah for two years.' 'Umar told this to the Prophet (p) who said, "My uncle tells the truth. We have taken from him the sadaqah of two years, in advance.'"36 This is evidence about collecting zakah on non-apparent wealth, since al 'Abbas was a merchant and did not own agriculture or livestock.

D. A similar saying reads "The Prophet sent his collector to take zakah. Some malicious individuals spread a rumor that Ibn Jamil, Khalid bin al Walid and al 'Abbas bin 'Abd al Muttalib refuse to pay zakah. The Messenger of God (p) gave a speech in which he denied this on behalf of al 'Abbas and Khalid, and confirmed the accusation about Ibn Jamil. The Prophet said, 'They do an injustice to Khalid. Khalid devotes his shields and weapons for the sake of God.' Apparently, these constituted Khalid's wealth.

He continued, 'As for al 'Abbas, the uncle of the Messenger of God (p) his zakah is due on me double.'"37

E. Abu Daud also reports that the Prophet (p) said "Bring me one-fourth of the tenth, one dirham out of each forty dirhams . . ."38, which indicates that he collected zakah on money.

F. Moreover, there are several reports to the effect that Abu Bakr, 'Umar, 'Uthman, Ibn Mas'ud, Mu'awiyah, 'Umar bin 'Abd al 'Aziz, and others used to collect zakah out of salaries and grants given by the state. Abu Bakr used to ask the recipients whether they owned any wealth. If the answer was affirmative, he took out of the salary the due amount of zakah on the wealth. Ibn Mas'ud collected zakah on the salaries themselves, at a rate of twenty-five per thousand. (It is known that he did not require the passage of one year on earned income, as show earlier in this book).'Umar, when giving salaries counted the wealth of merchants, both current and future, and took zakah out of both.39

Qudamah narrates, "'Uthman bin 'Affan used to ask me when I went to receive my salary, 'Do you have any wealth on which zakah is due?' If I said yes, he would collect the due zakah out of my salary, and if I said no, he would give me my salary."40

G. Lastly, the religious opinions reported from Ibn 'Umar and some other Companions indicate that zakah must be paid to the government, even if it were oppressive, without any distinction between apparent and non-apparent items of wealth.

A few scholars distinguish between apparent and non-apparent wealth on the grounds of the actual practice of the Prophet. They argue that no overwhelming or widespread evidence reaches us which shows that the Messenger (p) sent workers to collect and distribute zakah on money and business assets, as he did with respect to apparent wealth. Consequently, some leading scholars argue it is permissible either to give the zakah due on non-apparent wealth to the government or distribute it directly, provided that this is done with righteousness and without discrimination between recipients. Abu 'Ubaid says, "This is, I believe, the view of Sunnite scholars in both Hijaz and Iraq. As far as gold, silver, and trade assets are concerned, Muslims are trusted to fulfill this obligation, while zakah on livestock, grain, and fruits must only be administered by the Islamic government. Owners must not hide due zakah away from the Islamic government. If owners distribute the latter on their own, that does not satisfy the requirement, and zakah must again be given to the state. The texts we have from Sunnah and the Companions warrant this distinction. We see that Abu Bakr fought the apostates in order to collect zakah due on livestock. He did not do that for zakah due on gold, and silver."41 Abu 'Ubaid goes on to give a reports in support of this position, but upon close examination of his quoted statements, we find them all speak about exceptional circumstances, such as corruption in government and its zakah agency and not normal situations. This is obvious from the fact that such opinions come about only after political unrest and conspiracies that led to the killing of 'Uthman. Abu 'Ubaid reports, via his own chain, that Ibn Sirin says "The sadaqah was paid to the Prophet (p)

or his commissioners, then to Abu Bakr or his commissioners, then to 'Umar or his commissioners, then to 'Uthman or his commissioners. When 'Uthman was killed, people differed. Some continued to give zakah to the state, like Ibn 'Umar, and some started distributing it directly."42 This is well-known about Ibn 'Umar, who says 'As long as they [the rulers] establish prayer, you must give zakah to them." It is even reported that he dropped this condition, saying "Give it to them even if they use it to buy dog meat for their own dishes." In answer to another person he said, "Pay it to them even if they use it to buy clothes and perfume for themselves." But we have certain narrations to the effect that Ibn 'Umar withdrew this last opinion saying, "Put it [zakah] where it must properly be put."43 A friend of his asked him, "What do you say about zakah since these rulers do not put it where it belongs?" Ibn 'Umar said, "Pay it to them." The man said, "If they delayed prayer, would you still pray with them?" He answered, "No." The man said, "Is not zakah like prayer? Ibn 'Umar said, "They confuse us; may God confuse them."44 This is seen as acceptance of the man's point of view.

It is also reported that Ibrahim al Nakha'i and al Hasan al Basri say, "Distribute it properly yourselves and hide it properly yourselves and hide it from the rulers."45

Maimun bin Mahran is reported to have said, "Put it in small bags and distribute it among the deservarnts that you know. Be keen to do away with all of it by the end of the month."46 Abu Yahya al Kindi says, "I asked Sa'id Ibn Jubair about zakah. He said, 'Give it to the rulers'. When Sa'id left, I followed him and asked, 'Should I give it to the rulers although they do with it so- and- so?' Sa'id answered, 'Put it where God ordained you. You asked me in presence of a public audience, and I could not give you my personal opinion there'."47

All these narrations and opinions mentioned by Abu 'Ubaid were given after the beginning of political unrest, the rise of anger against some Umayyad commissioners, and the deviation of many of them from standards established during the period of the Wise Successors. Lastly, it may be noted that my authentic report that the Prophet (p)

made a distinction between apparent and non apparent items of wealth, and that he did not sent commissioners to collect zakah on non-apparent items, is caused by either of the following two reasons:

1. People used to bring that zakah to the Messenger of God (p) out of their faith and awakened conscienceness.

2. Reckoning this kind of wealth was practically impossible, except by the owner, so owners were charged with that obligation.

This continued during the era of the first Successor, Abu Bakr. During the caliphate of 'Umar, the state expanded, and salaries were assigned to all people, including the new born. Even people of Pledge were covered by this social insurance. This program required huge resources, so it became indispensable to appoint commissioners to collect zakah on all of wealth, both apparent and non-apparent. Consequently, 'Umar established an administration for zakah collection called the system of "al 'Ashirin" i.e.

"collectors of the tenth", since one-tenth was collected from foreign merchants (in application of the same treatment Muslim merchants were given in foreign countries), half a tenth was collected from merchants of the people of the Pledge (according to the treaties 'Umar had with them) and one-fourth of a tenth from Muslim merchants (as zakah).48

Scholars consider the system of collection established by 'Umar as a great facilitation for the whole society, for otherwise, zakatable people would have to cross long distances to bring their due zakah to Madinah. Thus, the same principle was applied by the Prophet, Abu Bakr, and 'Umar, except that 'Umar improved the method of collection. When 'Uthman came, huge amounts of proceeds from fai, ghanimah, kharaj, jiziah and sadaqat started pouring into the state treasury, so 'Uthman decided to collect zakah of apparent wealth only and to leave zakah of non-apparent wealth to owners to distribute themselves, under the supervision of the state. 'Uthman depended on the awakened consciences of Muslims at his time to stimulate scrupulous payment. Some jurists interpret this action of 'Uthman as the appointment of owners as representatives of the state regarding distributing zakah on non-apparent wealth.

In al Bada'i, al Kasani says, The Prophet (p), Abu Bakr, and 'Umar collected it [zakah] on non-apparent items. But when funds became abundant at the time of 'Uthman, he found it was to the public benefit to assign distribution to owners. This was done with the approval of the Companions. Owners of such items became agents of the state, especially since 'Uthman said, 'Whoever owes any debt must first pay it back, then distribute zakah of the residual. This authorizes owners to distribute their zakah. Thus, the right of the state is not waived. Consequently, our colleagues hold that if it becomes known to the state that people in certain areas do not fulfil this requirement, the state reserves the right to collect it through its own commissioners.49

Finally, we reach the conclusion that in principle, it is the state's duty to collect zakah on all wealth, both apparent and non-apparent. Exceptionally, when the treasury's resources are great (as with 'Uthman) owners of wealth may be authorized to distribute zakah on non-apparent assets, on the condition that if they fail, the state can take charge of this collection and distribute again.

This matter is discussed by the Professors Khallaf, al Hasan, and Abu Zahrah in their lecture on zakah in Damascus 1952. They say, It is imperative that the government take responsibility for collecting zakah on all wealth, apparent and non-apparent, for two reasons. Firstly, many people now abandoned this obligation on all their wealth. They do not fulfill the terms of agency given by Uthman and scholars after him, and jurists state that if people do not fulfill the obligation of distributing zakah due on their non-apparent wealth, the state may take charge of this obligation again, and that if people do not in general pay their zakah, the state must force them to do so.

Secondly, most formerly non apparent items of wealth have become apparent today, especially trade inventory and monetary assets, since merchants usually keep accounting records for their businesses. The same rules that apply to calculating taxes on income and profit must be used with regard to zakah obligated by God for poor and deprived. Money and monetary assets are mostly deposited in banks, and knowing their balances at the end of the year is an easy matter. We know that jurists agree that if non-apparent items of wealth become apparent, responsibility for the collection of their zakah reverts to the state. The fact that the institution of al Ashirin remained during and after Uthman's period supports this point, since al Ashirin used to collect zakah on merchandise being transported from one place to another. Thus, the ability to reach and count non-apparent items, obviously means they should be treated like apparent items.50

It must be noted that each Islamic state is called upon to establish an organization for collecting and distributing zakah, although I prefer that a fraction of the due zakah (one-fourth or one-third) be left for individuals to distribute to deservants whom they personally know, especially their kindred and neighbors. This is by analogy to the Prophet's practice of leaving part of the harvest uncounted during pre-estimation of zakah due on it.

Undoubtedly, assigning the responsibility of zakah collection and distribution to the state applies to a government that takes Islam as its ideology, Islamic laws as foundation for its constitution, and Islamic social, economic, cultural, and political standards as a basis for its social structure, even if such a government may deviate slightly in the minute details. Governments which reject Islam as basic ideology of the state are prohibited from collecting zakah because they cannot be entrusted with its proper fulfillment.

Authorizing the state to penalize those who do not fulfill the obligation of zakah and to take the due amount by force is itself an assertion of the state's vital role in zakah collection.

Hanafites believe that zakah officers my only accept payers' disclosures if ascertained under oath. A payer may claim payment is made to another officer, being in debt, or any other factor that reduces or eliminates zakah payment. Hanafites add that if it is discovered, even years later, that a statement made under oath about the payment of zakah is invalid or false, the due zakah must be collected. Zakah officers must not accept any claim that zakah on apparent wealth was paid directly by the individual.51

However, the officer my accept a statement made under oath that zakah on non-apparent items was already distributed to deservants by the payer himself.52

Malikites assert that in case of refusal to pay, zakah must be collected by force, as long as it is known that the payer is wealthy, whether he or she owns apparent items or non-apparent items. Imprisonment may be the penalty for certain cases of denial of zakah payment. It is said that the Islamic government may go as far as to declare those who refuse to pay zakah rebels and fight them until the due zakah is collected.53

Shafi'ites argue that anyone who refuses to pay zakah must be forced to do so, and a penalty must be imposed. However, if such a refusal is caused by denial of the obligation itself, it is considered apostation and the penalty is death. al Shafi'i, in his older opinion, asserts that the penalty of refusing to pay zakah is a fine of half the person's wealth in addition to the due amount of zakah. This is in accordance with the saying narrated by Bahz bin Hakim from his father from his grandfather from the Messenger of God (p): "And he who refuses to pay, we surely shall take it, along with half his wealth. It is an obligation from among the obligations of our Lord, and none of it belongs to the family of Muhammad."54 But the first mentioned view of Shafi'i is the correct view. The author of al Muhadhdhab adds, "The government may fight those who refuse to pay zakah as Abu Bakr, the Truthful, fought them."55

It is agreed upon that those who deny the obligation of zakah itself are treated like apostates, provided they have no excuse, such as being very new to Islam, and therefore not having yet grasped all its requirements. There is no disagreement also that zakah must be collected by force if payers refuse to give it without use of force.56

However, scholars do not agree about imposing a fine on those who refuse to pay zakah. Some, including Ishaq a report from Ahmad, al Awza'i, and the older opinion of al Shafi'i, believe a fine of half the payer's wealth must be collected along with the due amount, in accordance with the saying mentioned above. As for the majority, including the later opinion of al Shafi'i, only the due amount of zakah must be collected. This is based on three points:

A. The saying "Nothing is obligated on wealth except zakah."57

B. Zakah is a worship, and not fulfilling a worship is not a reason that incurs fines.

C. Many people refused to pay zakah during Abu Bakr's time. Although Abu Bakr fought those who refused to pay, no report is available from him or any of the Companions that a financial fine was imposed on those who were forced to pay zakah.58

As for the saying of Bahz, al Baihaqi quotes al Shafi'i as saying "It is not considered authentic by scholars of hadith. If it were authentic, I would have referred to its implication."59 Al Baihaqi adds that both al Bukhari and Muslim do not use Bahz in their chains of narrators.60 But one may reply that this is not sufficient reason for grading a saying weak, since there are many correct sayings outside the collections of al Bukhari and Muslim. Some scholars claim the saying of Bahz is annulled by a saying from al Bara bin 'Azib that eliminates all financial fines. This annulment cannot be supported, since it requires knowledge of chronological succession of the two sayings and such knowledge is not available.61 Al Mawardi considers Bahz's saying in contradiction to the saying "Nothing is obligated on wealth except zakah", and concludes that the saying from Bahz is not meant for actual punishment but only to create fear of violating the obligation of zakah.62 Al Nawaw'i adds that the saying of Bahz is graded weak by al Shafi'i and other hadith scholars.63

All the objections to the saying from Bahz can easily be shown as invalid, but as stated earlier in this book, the fine was imposed by the Prophet in his capacity as a head of state.64 Thus, imposing such a fine or not is up to the Islamic state, as argued by al Qarafi, al Dahlawi, and others.65

The contrast between the saying from Bahz and the saying "Nothing is obligated on wealth except zakah" is invalid, firstly, because there are several financial obligations on wealth besides zakah confirmed by glorious verses of the Qur'an and explicit, correct saying, and secondly, the authenticity of the latter saying is disputed.66

The objection that Islam does not impose financial penalties is refuted. lbn al Qayim in his al Turuq al Hukmiyah shows that we have at least fifteen cases reported from the Messenger of God (p) and his Wise Successors in which a financial penalty was imposed.67

Lastly, grading the saying from Bahz as weak is irrational, since it is not so graded because of weakness in the chain, but rather by the text itself, on the grounds of the previous two objections. Since these two objections have been shown to be incorrect, grading the saying weak on their grounds is also incorrect. It is noted that Bahz himself was graded weak because of this saying and not because of any weakness in his own trustworthiness. Ibn Habban says "If it were not for this saying, I would grade Bahz trustworthy" After narrating the opinion of several leading scholars about the trustworthiness of Bahz and the grading of his narrations as correct by Ahmad, Ishaq, Ibn al Madani in Tahdhib Sunan Abu Daud, Ibn al Qayyim adds:

He who rejects this saying has no acceptable evidence since the claim that it is annulled is unfounded and has no truth. We have several sayings about the existence of financial penalties. As for the contradiction between this saying and that from al Bara', it is absurd, because the story in the saying from al Bara does not contain an action that deserves any penalty, but merely injury caused by an animal, without any intention on the part of its owner. Interpreting the saying as intending merely to create fear of violation is even more absurd. Words of the Prophet (p) cannot be taken to mean other than what the words say.

As for Ibn Habban's statement, 'If it were not for this saying I would consider Bahz among the trustworthy', it is falling apart, it is illogical to consider Bahz weak because of this saying while this saying is rejected because Bahz is weak. Narrating this saying is by no means a reason for weakness anyway, since he does not differ from any trustworthy narrator on it.68

Strangely enough, many authors such as al Shirazi, and al Mawardi, and Ibn Qudamah object to this correct saying from Bahz, on the grounds that it contradicts the saying, "Nothing is obligated. . ." which has no value at all from the point of view of authenticity.

The Hanbalite opinion is similar to that of the Shafi'ites. Ibn Qudamah says "He who refuses to pay zakah, while he still believes in its obligation, must be forced to pay it by the government. However, nothing in excess of the due amount may be taken."On the other hand, Ishaq and Abu Bakr bin 'Abd al Aziz believe a fine of one-half the wealth of the payer must be collected, in accordance with the saying reported from Bahz bin Hakim. Those who refuse to pay zakah may be fought by the Islamic state until zakah is collected, without any additional fine. Al Maimuni reports that Ahmad says "Those who refuse to pay zakah, to the extent that they fight against the Islamic government in order to defend their position of refusal, should not be treated like Muslims in matters of inheritance and funeral, 'Abd Allah bin Mas'ud says "he who abandons zakah is not Muslim."This is based on Abu Bakr's stance toward those who refused to pay zakah.

When they were pressured at the battle front, they told Abu Bakr they would pay the due zakah if he discontinued the fight, but his answer was, "No, I do not accept your due zakah until you testify that our martyrs are in heaven and those who were killed on your side are in the fire. None of the Companions is reported to have disagreed with Abu Bakr's statement, a statement that implies the rebels were unbelievers.

The other opinion which does not mark as disbelievers those who refuse to pay zakah is supported by the fact that zakah is one of the Islamic obligations whose abandonment does not negate the basic faith, as long as its obligation is not entirely denied.69

Lastly, according to Zaidis, a claim by a person that he does not owe any zakah may be accepted according to the discretion of the zakah commissioner and the trustworthiness of the person,70 while a claim that the due amount was distributed directly by the payer must be supported by evidence. Otherwise, the collector should charge the zakah payer the due amount disregarding any claim of direct distribution.71

Muslin scholars differ on paying zakah to oppressive governments. Some believe it is unconditionally permissible, and others declare it prohibited in all cases, with whole spectrum of views between these two extremes.

As for those who say it is unconditionally allowed to pay zakah to oppressive governments, their main argument is derived from a few sayings mentioned by the author of al Muntaqa as follows:72

A. It is reported from Anas that a man said, "O Messenger of God, if I give my zakah to your commissioner would I be fulfilling it as far as God and His Messenger are concerned?" The Prophet said "Yes, if you give it to my commissioner, you have completed it from the point of view of God and His Messenger; you get its reward, and the evil of tampering with it is on whoever tampers with it."73

B. It is reported from Ibn Mas'ud that the Messenger of God said, "There shall be selfishness and matters you disapprove of after I am gone." People said, "O Messenger of God, what would you order us to do then?" He answered, "Fulfill the obligation that is on you and ask God for that which is yours."74

C. It is reported from Wa'il bin Hajar "I heard the Messenger of God (p) reply, when asked by a man 'What would you say if we happened to have rulers who prevented us our getting our rights and yet ask us for their right?', 'Listen and obey. They have the burden of what they do, and you have that of your deed."75

These sayings have an important implication, The Islamic state always needs funding for its social insurance programs and for public services, if people withhold making payments to the state because of the injustice of some rulers, many essential public services would be disrupted. Thus it is important that zakah keep flowing into the state treasury. However, making such payments to the state by no means implies abstaining from resisting oppression by all lawful means.

Muslims are required to pay financial dues obligated on them. While continuing to admonish and advise the rulers, in application of the general principle of ordaining what is good and forbidding what is evil. Additionally, the Islamic society has the right -- in fact it is obligated -- to remove rulers who expose their explicit disbelief. Moreover, a Muslim is obligated by God to disobey any order that conflicts with obedience to God or that requires him or her to do anything God forbids. This is in accordance with the correct saying, "Listening and obeying is a true obligation on any Muslim, both in matters he likes and in matters he does not like, unless ordered to disobey God. If he is ordered to disobey God, then there is no listening nor obeying."76

As for jurists who do not allow giving zakah to oppressors, their argument is based on the verse, "My covenant does not include the oppressors."77 They say paying zakah to oppressors does not fulfill the "religious worship" aspect of zakah. Al Shafi'i, in one report, subscribes to this opinion. So do Ahl al Bait, as stated by al Mahdi in his al Bahr.

Al Shawkani objects to this opinion, arguing that the general meaning of the above-mentioned verse is at least restricted by the saying mentioned at the beginning of this subsection.78

Between these two extreme opinions exist several views. Malikites assert that a ruler who is known to abuse zakah funds must not be given zakah. All effort must be made to avoid paying zakah to such a ruler, according to al Dardir in al Shar al Kabir, who continues, "But if a ruler is just in the collection and distribution of zakah, despite being oppressive in other issues, zakah must be given to him,"79 Al Dusuqi in his commentary disagrees and says "it is rather undesirable to give zakah to such a ruler."80 Zarruq, in Sharh al Risalah, says Zakah must not be paid to an unjust government unless it enforces payment, and the payer could not escape it. If the zakah payer can distribute the zakah directly, payment to the oppressive government does not fulfill the religious obligation. Ashhab notes that if zakah is taken by force, the religious obligation is fulfilled although it is preferable that an equal, additional amount be directly distributed to deservants. Ibn Rushd quotes differences among Malikites on whether, if an oppressive government collects zakah by force and does not distribute it justly, such collection fulfills the religious requirements of payers. He adds that the prominent view among Malikites is that zakah collected by force satisfies the religious requirement, provided it is collected as zakah and at the proper rates and conditions.81

Hanafites believe the collection of zakah by oppressive governments fulfills the religious requirement of the payers, provided that funds collected are distributed justly.

If they are not distributed justly, zakah payers are religiously required to make another payment directly to deservants. This applies to zakah on apparent assets. As for non-apparent wealth, some Hanafites argue that the enforced collection of this zakah by oppressive governments does not fulfill the religious requirement of zakah.82

Hambalites, according to Ibn Qudamah in his al Mughni, believe zakah collected by oppressors satisfies the religious obligation of the payer, regardless of the manner in which funds are distributed or of the use of force in collection. Abu Saleh says "I asked Sa'd bin Abi Waqqas, Ibn 'Umar, Jabir, Abu Sa'id, and Abu Hurairah, 'should I pay my zakah to this government when you see what it does?' They all answered 'yes.' Ibn Qudamdh adds, "The statement of these Companions is not disputed according to what reaches us about their positions."83 The author of Matalib Uli al Nuha says "Their is no disagreement in our school that it is permissible to pay zakah to the government, be it just or not, regardless of whether it is zakah on apparent or non-apparent wealth." He adds, "This is based on what is reported from the Companions. Ahmad says, 'The Companions used to pay zakah to the government, although they knew how it was expended. Why should I say something different?'"84

In my opinion, Muslims are not required to repeat payment if they are forced to pay zakah to oppressive government, as long as what is paid takes the very same name of zakah. Moreover, zakah should be paid to unjust governments as long as they collect and distribute justly to deservants assigned in Shari'ah, even if such governments are otherwise oppressive. Governments which do not distribute zakah properly yet enforce its collection, may be given due zakah as long as Muslims cannot avoid doing so.

Lastly, it must be noted that rulers to whom the above-named Companions permitted payment of zakah were still, at least, raising the banner of Islam and fighting its enemies, although they deviate in certain areas from the Islamic system. This does not apply to many contemporary Muslim governments, which have actually detached all bonds to this religion and abandoned its Qur'an, to the extent that some of them suppress any Islamic voice and crush those who call for Islam. Such governments must not be given zakah since commitment to Islam is the indispensable condition for allowing zakah to be given to any government.

Muslim jurists do not allow zakah to be given to a wayfarer who is travelling in disobedience to God. How then could zakah be given to government which stand in opposition to the way of God and against His religion on earth? The late reformer Rashid Rida, in his explanation of the Qur'an, brilliantly says, The Islamic state in the Muslim land is the authority to which zakah must be paid. It is in charge of collection and distribution. However, most Muslims nowadays do not have governments that establish the religion of Islam, protect Muslims, and fight only for the sake of God, or governments that collect the obligated zakah the way it should be, justly and rightfully. Most Muslim live either under the authority of occupying foreign troops or apostate governments that oppose Islam,85 although these states may be headed by nominal Muslims. Zakah may be given to the remaining governments whose leaders believe in Islam and whose finances are not under the control of foreigners, even with the presence of certain aspects of oppression. As stated in Sharh al Muhadhdhab and other works, some deeply rooted scholars suggest that "if the government is unjust and does not distribute zakah according to Shari'ah, it is preferred that payers distribute zakah independently.

1. Sura al Tawbah, 9:60.

2. Ibid, 9:103.

3. Fath al Bari, Vol. 3, p.23.

4. Nail al Awtar, Vol. 4, p. 124.

5. Al Talkhis, Vol. 2, pp 159-160.

6. Tabaqat Ibn Sa'd, Vol. 2, p. 160.

7. Zad al Ma'ad, Vol. 2, p. 472.

8. Al Taratib al Idariyah, p. 398.

9. Ibid, pp 396-8.

10. Zad al Ma'ad, op. cit.

11. Al Majmu', Vol. 6, p. 167, and al Rawdah, Vol. 2, p. 210.

12. Reported by Muslim.

13. Reported by Abu Daud, according to Nail al Awtar Vol. 4, p.155. Al Munawi says in al Faid "There is no doubt the Prophet never appointed an unjust officer. All his officers and zakah collectors were top in their sense of justice. They include persons like 'Umar, 'Ali and Mu'adh. So the saying must mean that you are going to have collectors whom you may think are injust." Al Mazhari adds "This may be a reference to the future, when collectors may in fact be unjust. Yet rejection of payment to them may lead to general unrest and disturb the public order of the whole state."See Faid al Qadir, Vol. 1, p. 475.

14. According to Nail al Awtar. ibid, the author of al Muntaqa attributes quoting this saying to Ahmad.

15. As stated by al Nawawi in Al Majmu'.

16. Al Majmu', Vol. 6, pp. 162-4.

17. Ibid.

18. Al Qardawi, Mushkilat al Faqr wa Kaifa 'Alajaha al Islam, pp. 94-5.

19. Al Mabsut, Vol. 3, p. 18, al Bada'i, Vol. 2, pp. 68-69 and Radd al Muhtar, Vol. 2, pp.

59-60.

20. Al Amwal, p. 531.

21. Al Mughni, Vol. 2, p. 643.

22. Radd al Muhtar, Vol. 2, p. 5.

23. Ibid, pp. 41-42.

24. Hashiat al Dusuqi, Vol. 1, pp. 503-4.

25. Tafsir al Qurtubi , Vol. 8, p. 177.

26. Al Rawdah, Vol. 2, pp. 205-6.

27. Al Mughni, Vol. 2, pp. 641-4.

Methods of Zakah Distribution 131

28. Sharh al Azhar, Vol. 1, pp. 527-9.

29. Ibid, pp. 534-5.

30. Sharh al Nil, Vol. 2, pp. 137-8.

31. Al Mughni, Vol. 2, pp. 642-3.

32. Sharh al Azhar, Vol. 1, p. 529.

33. Al Bahr, Vol. 2, p. 190.

34. Tafsir al Razi, Vol. 16, p. 114.

35. Fath al Qadir, by Ibn al Humam, Vol. 1, p. 487.

36. Al Amwal, p 589. The saying is reported via several chains that are not safe from weakness, but they strengthen each other. See Fath al Bari, Vol. 3, p 214. Jurists use this saying as lawfulness of prepayment of zakah.

37. Al Amwal, pp. 592-3. The saying is reported by al Bukhari, Muslim and Ahmad, See Nail al Awtar, Vol. 4, p 149.

38. Ma'alim al Sunnan, Vol. 2, pp. 188-9, see also the notes on this saying by Ibn al Qayyim in his Tahdhib Sunan Abu Daud.

39. Musannaf Ibn Abi Shaibah, Vol. 4, pp. 44.

40. Al Umm by al Shafi'i, Vol. 2, p. 14.

41. Al Amwal, p. 573.

42. Ibid, p. 573.

43. Ibid, 44. Ibid.

45. Ibid.

46. Ibid.

47. Ibid.

48. Ibid. 531.

49. Al Bada'i', Vol. 2, p. 7.

50. Halqat al Dirasat al Ijtima'iyah, 3rd session on zakah.

51. It is noticed that many Hanafites do not consider 'Ushr to be zakah, on the grounds that it is a fee on land. But Ibn al Humam, a leading Hanafite, rejects this view and asserts that Ushr is undoubtedly zakah. See this book chapter on zakah on agriculture.

52. Radd al Muhtar, Vol. 2, pp. 42-43, and 54.

53. Hashiat al Dusuqi, Vol. 1, p. 503.

54. The saying is reported by Ahmad, Abu Daud and Al Nasa'i, see part I of this book.

The saying is also reported by al Hakim in al Mustadrak who, followed by al Dhahabi, grades it correct. Yahya bin Ma'in says "Its chain would be correct if those below Bahz are trustworthy." Ahmad says "I do not know what to grade it. Its chain is allright." See Nail al Awtar, Vol. 4, p. 122 and Tahdhib al Tadhib, Vol. 1, pp. 498-9, autobiography No. 924 and Mizan al I'tidal, autobiography No. 1324.

55. Al Majmu', Vol. 5, pp 331-332.

56. Al Bahr al Zakhkhar, Vol. 2 , p. 190.

57. See footnote 7 in chapter 1, part VIII.

58. Al Sunan al Kubra, Vol. 4, p. 105.

59. Ibid.

60. Ibid.

61. Ibid, and al Majmu', Vol. 5, p. 334.

62. Al Ahkam al Sultaniyah, p. 121.

63. Al Rawdah, Vol. 2, p. 209.

64. See part I of this book.

65. See part III chapter 2, of this book.

66. Al Bahr al Zakhkhar, Vol. 2 , p. 190, al Mughni, Vol. 2, p. 573, and al Ahkam al Sultaniyah by al Mawardi, p. 121.

67. Al Turuq al Hukmiyah, p. 287.

68. Tahdhib al Sunan with the summary of al Mundhiri and al Ma'alim, Vol. 2, p. 194.

69. Al Mughni, Vol. 2, pp. 573-5.

70. Sharh al Azhar and its commentaries, Vol. 1, p. 530. and al Bahr, Vol. 2, pp. 190-1.

71. Ibid.

72. Nail al Awtar, Vol. 4, pp. 164-5.

73. Reported by Ahmad. See Nail al Awtar, vo1.4, p. 155.

74. Agreed upon; see ibid.

75. Reported by Muslim and al Tirmidhi, ibid.

76. Reported by the group from Ibn 'Umar; see al Jami' al Saghir.

77. Sura al Baqarah, 2:124.

78. Nail al Awtar, Vo1. 4, p. 165.

79. Al Sharh al Kabir, Vol. 1, p. 502.

80. Hashiat al Dusuqi, Vol. 1, p.504.

81. Sharh al Risalah, Vol. 1, pp. 340-1.

82. Radd al Muhtar, Vol. 2, pp. 26-7.

83. Al Mughni, Vol. 2, pp. 644-5.

84. Matalib Uli al Nuha, Vol. 2, p. 120.

85. This describes the majority of governments in Muslim countries today.

86. Tafsir al Manar, Vol. 10, pp. 595-6.

5.1 Chapter One The Role Of The State

State responsibility with regard to zakah

Companions' opinions on the role of the state

Rationalization of this evidence

The treasury of zakah

Apparent and non-apparent assets

Comparison and weighing

The view of Abu 'Ubaid

Who is responsible for administering zakah today?

Refusal to pay and cheating

Unanimity about penalizing those who refuse to pay zakah

Payment of zakah to oppressive governments