Judicial Authority and Roots of Twelver Shīʽī Tax Theory

By Mohammad Sagha

The main question this study addresses is: how can the delegation of authority within the Shīʽī* community after the Minor Occultation of the Twelfth Imām in 260/874 explain Shīʽī judicial views on religious tax theory?[1] The advent of the Minor Occultation produced an environment of doubt for the followers of the imāms in which it was not immediately clear how they should donate their religiously obligatory taxes which were theretofore given directly to the imāms and their representatives. The absence of an accessible imām for the Shīʽa created a vacuum of authority both theologically and practically regarding the propriety and practice of collecting taxes from ordinary Shīʿī Muslims. The theological issues for tax collection appear in theological and juristic works addressing religious authority,[2] while the practical problems appear in works of social history.[3] This paper will address both legal-theological sources and works of social history related to religious taxation to analyze the evolution of Shīʽī judicial authority surrounding taxes. I argue that Shīʽī jurists (fuqahāʼ) delegate powers of the imām by making the payment zakāt and khums[4] a means of exercising juristic authority to represent the hidden imām.

In and of itself, this view is not new. Norman Calder, the late British legal scholar of Shīʽīsm, viewed the debates on zakāt and khums as arenas through which the Shīʽī jurists delegated the authority of the hidden imām to themselves. Most major Shīʽī jurists[5] from the beginning of the Minor Occultation in 260/874 to the middle of the 19th century when the marjaʿīyya system emerged generally recognized the precarious situation and accorded greater priority to the Shīʽī community in distributing the zakāt in the absence of the imām.[6] While these same jurists allowed greater individual prerogative, they simultaneously tended to encouraged that the funds be given to a learned scholar, because the scholars “were more knowledgeable about the places of zakāt (i.e. the appropriate recipients).”[7]

The juristic argument for greater appropriation of authority to collect and distribute zakāt has led certain modern scholars to argue that a subtle organizational shift took place after the occultation in which the faqīh saw himself not as a representative (wakīl) to the donor of religious taxes but rather as a representative of the concealed imām.[8] In the first case, the jurist acts as a trustee of the individual Shīʽī Muslim who forfeits his donation. In the second case, the jurist acts as a trustee of the imām who collects the donation on the imām‘s behalf. This meant that jurists increasingly saw themselves delegating their authority through the rights accorded to the Imām rather than acting as representatives of their community in a more narrow sectarian sense. A clear crystallization of this belief is evidenced in the works of Muḥammad Jamāl al-Dīn Makkī al-ʽĀmilī (al-Shahīd al-Awwal) (d. 786/1385).[9] In the modern period, Grand Ayatollah Muḥsin al-Ḥakim, the famous Iraqī jurist who was a leading source of emulation (marjaʽ) until his death in  1970,[10] has likewise argued that “a well-qualified mujtahid in the religious sciences could act as the representative (wakīl, nāʼib) of the imam in occultation.”[11] This position is now standard in modern Shīʽīsm, and has its roots in scholarly discussions from over a millennium ago.

The absence of a government run by the imām also rendered many aspects of the sharīʽa to be sāqiṭ (suspended, omitted).[12] With the suspension of aspects of the sharīʿa, the jurist imagined himself as nāʼib khāṣṣ (“general representative”) rather than nāʼib ʽāmm (“specialized representative”) to the absent imām. As a specialized representative, the jurist had a more limited range of responsibilities, which prominent sixteenth-century Shīʽī scholars such as al-Muḥaqqiq al-Thānī (d. 940/1533) and al-Shahīd al-Thānī (d. 965/1558) associated with “contemporaries of the Imām” in the pre-occultation period.[13] Instead, al-Muḥaqqiq al-Thānī and al-Shahīd al-Thānī argued for an expansion of representation (niyāba) for the collection of zakāt during the occultation as previous representational responsibilities did not reflect new realities of their time.[14] By incrementally increasing the powers and authorities delegated to jurists after the time of the presence of the imāms Shīʽī jurists may have been encouraged “by the elusive possibility of actually forming a ‘state’ subject to sharʽī rules and governed by the clerical class.”[15] The motivation behind al-Muḥaqqiq al-Thānī and al-Shahīd al-Thānī could well have come from their witnessing the rise of the Ṣafavid state which espoused a strong Shīʽī identity and provided new and expanded opportunities for the rise of juristic authority and power sharing with state authorities; by expanding the scope of representation from specialized to generalized, the aforementioned scholars denied Islamic legal “legitimacy to secular powers, while affirming the ultimate right of the clerical class to implement the sharīʽa and promoting in practice their financial independence from the government.”[16]

A parallel arena of debate to the status of zakāt was that of khums donations. Up until the occultation is 260/874 CE, Shīʽīs were required to pay one fifth of their wealth directly to the imām. After the occultation, however, there was a divergence of opinion regarding what the status of khums should be. Some jurists advocated that the Shīʽa bury their khums underground until the awaited return of the Twelfth Imām, while others advocated that it be invested in perpetual trusts. This debate played out between two major early Shīʽī jurists, Shaykh Ṭūsī and Ibn Idrīs al-Ḥillī (d. 598/1202 CE).[17] Their conflicting positions reflected two fault lines following the occultation of the Twelfth Imām that asked: to whom should khums should be paid and how should khums be distributed? Ibn Idrīs wished to strictly separate the categories of the khums between the imām‘s share and the sādāt share.[18] He argued that individual Muslims either bury the share of imām or place it in perpetual trusts until the imām‘s re-emergence. Ṭūsī on the other hand, preferred that both shares should be handled by the representatives of the Hidden Imām, who were most legitimately the jurists (fuqahā).[19]

In the modern period, with the rise of Shaykh Murṭaḍā al-Anṣārī (d. 1281/1864), called the first “effective model” of emulation (marjaʼ),[20] the jurists finally fully appropriated khums collection on behalf of the Hidden Imām. This remains the practice today among Shīʽī Grand Ayatollahs. [21]  As Roy Mottahedeh argues in Mantle of the Prophet, it was “Sheikh Ansari [who] brought the intellectual revolution of the jurisconsult school to its maturity.”[22] In addition to the intellectual revolution, the financial one was just as important: it was through the “sahm-e Imam, or ‘portion of the Imam,’ the income owed by the Shiah to the mullahs through self-tithing in the absence of the Twelfth Imam” that ensured the “financial recognition of this new centralization of religious authority,” which continues until modern day.[23]


* Unless otherwise noted, Shīʽī is a reference to the Twelver Imāmī community.

[1] The occultation refers to the physical disappearance and inaccessibility of the Twelfth Imām following the death of his father, the previously accepted imām among the Shīʽī community. Given the doctrinal adherence of the Shīʽīs to the imām as the sole legitimate leader and religious guide of the Muslim community, the occultation (ghayba) confronted the Shīʽīs with unprecedented challenges both doctrinally and socially. For a detailed study on this subject.

[2] For a secondary work which address theological and juristic issues which accompanied the ghayba, see: Hossein Modarressi, Crisis and Consolidation in the Formative Period of Shiʻite Islam (1993); for a primary work, see: Ibn Abī Zaynab al-Nuʿmānī, Kitāb al-Ghayba (pr. 1428H/2007).

[3] For a secondary work which addresses the social history of the occultation, see: Jassim Hussain, The Occultation of the Twelfth Imam (1982); for a primary work, see: Abū Jafar Muḥammad b. al-Ḥasan al-Ṭūsī, Kitāb al-Ghayba (pr. 1411H).

[4] For Shīʿīs zakāt and khums are obligatory religious taxes (or alms) which must be paid for salvific purposes. For more details see previous post, and Encyclopedia of Islam articles on Khums and Zakāt.

[5] For example, Shaykh Ṭāʼifa al-Ṭūsī (d. 460/1067), Muḥaqqiq al-Ḥillī (d. 676/1277), ʽAllāma al-Ḥillī (d. 726/1325); see throughout Norman Calder, Zakāt in Imāmī Shīʽī Jurisprudence (1981).

[6] Shaykh Ṭāʼifa al-Ṭūsī states that during the occultation the individual can distribute his zakāt obligations himself and not give it to the “tyrannical sultan” (sulṭān al-Jawr); al-Mabsūṭ fī Fiqh al-Imāmīyya 261 (p. 1386/2007).

[7] A position held by al-Ṭūsī; Norman Calder, Zakāt in Imāmī Shīʽī Jurisprudence 475 (1981).

[8] Norman Calder, Zakāt in Imāmī Shīʽī Jurisprudence 475-6 (1981).

[9] Norman Calder characterizes the shift as a “direct transfer to the faqīh of the authority which traditionally belonged to the imām or his ʽī [directly appointed agent or representative]”; Zakāt in Imāmī Shīʽī Jurisprudence 477 (1981).

[10] The “source of emulation/Grand Ayatollah” or marjaʽ is the highest rank a Shīʽī jurist can currently attain which privileges him as a representative of the Hidden Imām to collect khums from believers, and in the case of the Islamic Republic of Iran, to attain leadership of the country. For a lengthy discussion of the modern institution of Marjaʽīya see: Linda Walbridge, Thread of Muʼawiya (2014); and Roy Mottahedeh, Mantle of the Prophet (2002).

[11] Abdulaziz Sachedina, al-Khums: The Fifth in the Imāmī Shīʽī Legal system 288 (1980).

[12] Norman Calder, Zakāt in Imāmī Shīʽī Jurisprudence 478 (1981).

[13] Norman Calder speculates that the phrase these two scholars use in describing the term ʼib khāṣṣ as “man naṣabahu al-imām” may refer to the four successive sufarāʼ of the Twelfth Imām who were the only individuals in communication with the imām during the minor occultation from 874-941 CE; Zakāt in Imāmī Shīʽī Jurisprudence 479-480 (1981).

[14] Norman Calder, Zakāt in Imāmī Shīʽī Jurisprudence 479 (1981).

[15] Norman Calder, Zakāt in Imāmī Shīʽī Jurisprudence 478 (1981).

[16] Norman Calder, Zakāt in Imāmī Shīʽī Jurisprudence 480 (1981).

[17] Norman Calder, Khums in Imāmī Shīʽī Jurisprudence 148 (1982).

[18] For more information on how khums is divided see post 3. <<LINK HERE>>

[19] Norman Calder, Khums in Imāmī Shīʽī Jurisprudence 148 (1982).

[20] Roy Mottahedeh, Mantle of the Prophet 211 (2002).

[21] For current Shīʽī Muslims khums has mainly became synonymous with a 20% annual tax on their surplus earnings, which individual Shīʽī Muslims pay directly to their respective Grand Ayatollahs. These donations help sustain the seminary training of clergy and give great discretionary financial authority to the Ayatollāhs for a variety of expenditures. The Khoei foundation which funds schools and charity projects around the globe is a result of the surplus khums which remained after Grand Ayatollah al-Khūʽī’s death in 1992.

[22] Roy Mottahedeh, Mantle of the Prophet 213 (2002).

[23] Roy Mottahedeh, Mantle of the Prophet 211 (2002).

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