By Sohail Hanif
We continue our reflection on social dimensions of Islamic law by turning our attention to the rules of Zakat, the obligatory alms in Islam. Zakat is a social institution, as it represents wealth moving from the ‘rich’ to the ‘poor’. By its very nature, Zakat creates social ties and dependencies. From the fact that it must be given to Muslims and ideally to those who live in the same locality, we can note that very particular ties are developed and nurtured by Zakat: Zakat creates a sense of identity, belonging and care within a localized faith community.
My interest in the current post, however, is not on the level of an abstract faith community. Rather, I wish to show how, ultimately, the rules of Zakat present a system that upholds and regulates an imagined political order. Zakat is where worship meets taxation. Like the Friday prayer discussed in my last post, Zakat represents a duty on people and a duty on rulers; each needs the other to fulfill their individual moral duty, and, in so doing, create a just economic order under God. The Zakat system is the economic symbol of the realm as God’s, the Real King (al-Malik al-Ḥaqq). Again, although I quote only early classical Ḥanafī works, much of what I draw from these texts will have parallels in texts of other periods and schools.
We can begin by noting that Zakat is undoubtedly presented in fiqh works as worship. This is the reason why the Kitāb al-Zakāh comes immediately after the Kitāb al-Ṣalāh. It commences by laying out who is obliged to pay. We are told early in the discussion that there is no Zakat in the wealth of children and the insane: “[because Zakat] is worship, so it must be performed by choice (ikhtiyār) for the meaning of the [moral] test to be realized (taḥqīqan li-maʿnā al-ibtilāʾ); however, [children and the insane] cannot choose due to absence of intellect [so they do not pay Zakat].” We can see that, as an act of worship, intentionality is required for a person to morally have discharged this duty to God.
Invisible and Visible Wealth and the Right to Seize Zakat
The division of Zakat-able wealth into visible (ẓāhir) and invisible (bāṭin) is a key distinction that separates the private sphere from the public in this meeting of worship and taxation. Visible wealth refers to livestock and land produce, as these are found outside of people’s dwellings. Invisible wealth refers to gold, silver, and trade stock, as these typically are kept in homes or other private properties. The reason for dividing Zakat-able items of wealth in this way is presented by al-Mawṣilī (d. 683/1284) in al-Ikhtiyār as follows:
The right to take [Zakat] was the ruler’s (kāna lil-imām) in visible and invisible wealth (al-amwāl al-ẓāhira wa-al-bāṭina) until the time of ʿUthmān [ibn ʿAffān] (d. 35/656) – God be pleased with him. He assigned the duty of [discharging the Zakat] of invisible wealth to its owners out of fear that oppressive regimes would [use Zakat collection as an excuse] to search through the wealth [and homes] of people. So the owners of wealth are like agents (wukalāʾ) of the ruler. If he knows they are not paying it, he may demand it from them.
This passage presents Zakat as originally a fully state-regulated institution. While a person was expected to intend it as worship, ultimately state collectors would be responsible for ensuring that Zakat-able wealth was fully accounted for, that Zakat was correctly calculated and then take responsibility for distributing it to recipients. From the time of ʿUthmān, the institution became semi-state-regulated, and the reason for this ‘de-regulation’ was to place a check on state power and protect the privacy of people. Had rulers been told it is their religious duty to ensure that all Zakat is paid, they might have taken it as their prerogative to storm into people’s homes and upturn their furniture looking for gold and silver coins. It is to preserve the dignity and privacy of people that the early community and the legal schools that followed created a semi-regulated system. When it came to private wealth, owners were to be trusted to account for all they owed, to calculate and to pay it out. When paying, they had the option of finding their own recipients or entrusting public collectors. However, when it came to the Zakat paid on livestock and agricultural produce, the right to calculate and demand remained with the political authority and its appointed Zakat collectors (variably called muṣaddiq, sāʿī and ʿāmil).
The division of Zakat-able wealth into private and public is an excellent example of the juristic community regulating and, thereby, restricting the political domain. The ruler’s activities are only legitimate within the sphere laid out by the juristic community. This community stands out from the political order and represents the public interest in the restrictions placed on rulers. At the same time, it provides religious legitimacy to rulers through affirming their centrality in these key ritual acts where worshipping God entails acknowledging the legitimacy of the ruler. Thus, in the passage above, even when an individual pays their own Zakat, this is theorized as occurring through an authority given to Zakat payers by the ruler.
The Representation and Authority of the Poor
On the question of legitimacy, there is a fascinating theorization of the hand of state appointed Zakat collectors. Once they take the Zakat from payers, it is considered validly paid, even if the Zakat is subsequently lost and does not make it to an eligible recipient. This is because the hand of these appointed collectors is considered the hand of the ruler who appointed them. And the ruler’s hand is considered the hand of poor Muslims, as the ruler is ultimately appointed by the Muslim public to represent them. In the topic of Zakat, the ruler is theorized as uniquely representing the interests of the poor, not the rich and not an abstract state-entity. In this, again, the Real King is God, and the ruler is a public servant, charged with collecting and distributing Zakat in his role as a representative of the public good and, specifically in the case of Zakat, representative of the interests of the poor.
The political weight given to poor Muslims (fuqarāʾ al-muslimīn), in this theory, is immense. It is their ‘right’ that obliges this Zakat system upon the public. It is their representation in appointing the ruler that legitimizes the role of the political order in this Zakat system. And it is their interest that is ultimately the interest of the head of state. Without this overarching ‘authority’ of the fuqarāʾ al-Muslimīn, the system of Zakat as worship embedded within taxation cannot be theorized. And in early precedent this ‘authority of the poor’ is clearly highlighted in the oft-stated account in the scholarly tradition of Abū Bakr’s (d. 13/634) declaring war against the Arab tribesmen for holding back their Zakat. This was, on the one hand, a most natural war, on the standards of many civilizations, as it was against communities that withheld taxation and thus withdrew from the political order. But on the other hand, this was a most unique war, since it was conducted under the ‘authority of the poor’, as the wealth for the sake of which this campaign was waged could only be used for the interests of the needy.
I highlight the poor as the ultimate cause and legitimizers of the whole system, even though the books of fiqh mention 8 categories of legitimate recipients. The reason for this is that the Ḥanafī texts I am referencing make the poor the basis in theorizing these categories. Zakat collectors, as stated above, may take the Zakat because they represent the ruler who represents the poor. All other categories are only given to if they can be identified as poor. Even the category of muʾallafat qulūbuhum – those whose hearts are to be reconciled – is theorized as a payment on behalf of the poor. To explain this obscure category further, we can note that the Ḥanafīs explain it as a payment of Zakat to non-Muslim chieftains by the Muslim political authority to secure an advantage for the Muslim community. This category, they argue, was discontinued after the Caliphate of ʿUmar ibn al-Khaṭṭāb (d. 23/644). And even when it was practiced, they theorized it as the contribution of the poor to the war effort (jihād) to protect the community. This is because the poor do not have the wealth to equip themselves to take part in military campaigns to defend the community from external threat. So their share in defending the public order is that some of the Zakat, collected for their sake, is put aside to be spent in diplomacy where it provides security to the community.
I cannot fully explore, in this brief post, the fascinating intertwining of worship and taxation in Zakat. I can only highlight discussions for further consideration. The Zakat on land produce is one topic explicitly connected with the Kitāb al-Siyar (also called Kitāb al-Jihād), where the Muslim political order is most fully theorized. This is because the question of whether one owes Zakat on land produce (ʿushr) instead of state-determined taxation (kharāj) depends on a division of land based on its conquest-status as explored in the Kitāb al-Siyar.
Another relevant sub-topic is the section of the ʿĀshir. The ʿĀshir is a state-appointed collector who operates at the border with neighboring territories. This collector is responsible for levying an import tax. From Muslims, this import tax is Zakat, because when crossing territorial boundaries with trade stock and money, the stock and money are no longer ‘invisible’, so the state has authority to count and collect Zakat. The ʿĀshir collects an alternative rate from non-Muslim citizens of the Muslim territory (dhimmīs) and another rate from citizens of other territories. The rules in this section that bring Zakat within import taxation deserve further exploration.
Another sub-topic deals with the discovery of metals under the earth (al-maʿdin wa-al-rikāz). This discovery is seen as uncovering an item of wealth to which the public also has a right. This is a sub-topic of Zakat, so the fifth (khumus, i.e. 20%) that is charged on this sort of discovery is to be given to the poor. Of note is that this ostensible taxation on discovering valuable metals under the earth does not require mediation of the ruler. Individuals are tasked with the moral duty of realizing a public right in the discovery of valuable ores under the earth by offering 20% to the poor, after which they may own the remainder. Here we see managed by the individual what we might expect to be managed formally through a state institution.
The Kitāb al-Zakāh is found at the beginning of fiqh books to give centrality to the meaning of personal worship in this ritual. Conceptually, Zakat is closely tied to the Kitāb al-Siyar, the chapter of fiqh works that deals with state-craft, as Zakat is one of the many revenue sources for the public treasury. As demonstrated in my last two posts, the oft-recurring instruction in the Holy Qur’ān to ‘establish prayer’ and ‘give Zakat’ is not simply an instruction to elicit a personal spiritual journey in the listener. Rather, it is an instruction to the believers to create a social order underpinned by Ṣalāh and Zakāh. It can be said from the previous discussions that the political imagination of Muslim jurists rests on these two foundational pillars. The Muslim ruler is subjugated to serve the order of Ṣalāh and Zakāh: in Ṣalāh, the ruler stands under God; in Zakāh, he stands under the poor.
But what if there is no Muslim ruler? I would like to address this question briefly in an attempt to tie together the overarching theme in my three posts of a social view of Islamic law.
We can being by noting that the Ḥanafīs can be seen as the most extreme of the legal schools in their conception of territoriality. The legal system presented in their books is seen as primarily pertaining to Muslim-Ruled territories (Dār al-Islām), with many rules not applying at all or only partially applying in foreign territories. Yet, they did not forbid Muslims from settling outside of the jurisdiction of the sharī‘a in non-Muslim lands. Instead they provided a theory for how Muslims could live the sacred law without the ruler who was otherwise seen as so central in the general fiqh theory. And the alternative to the ruler in these books is simply the community of believers.
When it comes to Friday prayers, for example, we are told that they can be held without a Muslim ruler to authorize them. In such a case, the people themselves are required to appoint their imām. Here, an individual may not simply put themselves forward for the role. There must still be an act of appointment. But this appointment returns to the Muslim public, not the ruler appointed by them. These texts furthermore instruct that Muslims in these territories should come together to appoint a sharī‘a judge (qāḍī), so that this figure can act as a moral leader of the community under whose authority the sharī‘a may be enacted to the extent possible in that non-Muslim land.
In short, Islamic law can exist outside of Muslim-ruled territories. Its rules are determined by a juristic community, and its institutions rest on the authority of the Muslim public, as it was ultimately the authority of this public, vested in a ruler, that gave the ruler his legitimacy. The ruler, however central to particular topics of the law, is not essential for the law to exist. Where there is a Muslim public, there may be Islamic law. But what is required is organization. We can recall from a previous discussion on the Friday prayer, that people are unlikely to put aside differences to pray behind a single imām; thus the ruler was seen as necessary to appoint an imām. In the absence of the Muslim ruler, the community must approximate to unity and organization as much as possible.
I commenced my posts by noting that a reader of Islamic law must be cognizant of the social organization on which Islamic law depends and which it seeks to produce. We can see that Islamic law lies between a Muslim public, a community of jurists and a political authority. The juristic community represents the command of God to both the political and the public. The political is required to ensure that the public is organized along the lines of the command of God conveyed by the juristic community. The public authorizes the political and gives centrality to the juristic community.
While individual jurists can be noted for ascetic, devotional and purely scholarly tendencies, historically, the juristic class as a whole has been a political one. They represented the interests of the Muslim public to ruling military classes, and assisted rulers in governance. This, I believe, is a necessary consequence of their craft as one that exists to direct social institutions to find harmony with the divine plan. I am personally moved by this aspect of Islamic jurisprudence. The duty of Muslim jurists to understand and direct the development of social institutions has inspired me to take time away from scholarship to reflect on the practicalities of Islamic law’s social vision through my current role managing National Zakat Foundation. My days are currently directed to understanding the institution of Zakat and what it means to develop a system of faith-based social care. There is, I believe, a call to social activism within the leather bindings of Islamic legal works. It is in this call that perhaps some of the deeper treasures of the discipline will be found.
 I have decided to capitalise and romanize Zakat. This is due to its becoming a standard term in English, particularly in the humanitarian space. This is how it is written by the UNHCR, for example, in their own Zakat-collection drive.
 Ḥanafī texts state it as disliked to take Zakat out of the locality where the wealth is stored, unless if to someone more needy or to a relative: al-Marghīnānī, al-Hidāya sharḥ Bidāyat al-mubtadī, ed. Aḥmad Jād (Cairo: Dar al-Ḥadīth, 2008), 1:182. Other schools take a stronger line on this, between sin and invalidity for moving one’s Zakat abroad.
 Al-Marghīnānī, al-Hidāya, 1:155. Interestingly, this is presented as a debate with al-Shāfiʿī, who obliged Zakat on the wealth of these two groups, giving preponderance, thereby, to the angle of taxation over worship.
 Al-Marghīnānī, al-Hidāya, 1:157.
 Al-Mawṣilī, al-Ikhtiyār li-taʿlīl al-Mukhtār, ed. Bashshār Bakrī ʿUrābī, 2 vols. (Damascus: al-Maktaba al-ʿUmariyya, n.d.), 1:155.
 Al-Mawṣilī, al-Ikhtiyār, 1:174.
 Al-Marghīnānī, al-Hidāya, 1:178-81.
 Al-Sarakhsī, al-Mabsūṭ, 30 vols. (Cairo: Maṭbaʿat al-Saʿāda, 1324/1906-7; reprint, Beirut: Dār al-Maʿrifah, 1993), 3:9.
 Al-Marghīnānī, al-Hidāya, 1:173-77.
 Al-Marghīnānī, al-Hidāya, 1:168-71.
 Al-Marghīnānī, al-Hidāya, 1:171-3.
 See Samy Ayoub, “Territorial Jurisprudence: Ikhtilaf al-darayn: Political Boundaries & Legal Jurisdiction,” Contemporary Islamic Studies 1 (2012): 2.
 Khaled Abou El Fadl, “Islamic Law and Muslim Minorities: The Juristic Discourse on Muslim Minorities from the Second/Eighth to the Eleventh/Seventeenth Centuries,” Islamic Law and Society 1, no. 2 (1994): 141-87.
 Ibn ʿĀbidīn, Radd al-muḥtār ʿalā al-Durr al-mukhtār. 6 vols. (Beirut: Dār al-Fikr, 1992), 2:143-4.
 Abou El Fadl, “Islamic Law and Muslim Minorities,” 158; Ibn ʿĀbidīn, Radd al-muḥtār, 2:143-4.
 There are several studies on the authority of the community in legitimating political rule and law-making. See, for example, Mohammad Fadel, “Political Legitimacy, Democracy and Islamic Law: The Place of Self‐Government in Islamic Political Thought,” Journal of Islamic Ethics 2 (2018): 59-75, and Sohaira Siddiqui, Law and Politics Under the Abbasids: An Intellectual Portrait of al-Juwayni (Cambridge: Cambridge University Press, 2019), ch. 10.
 For the political role of a leading family of Central-Asian Ḥanafī jurists, see Encyclopaedia Iranica, s.v. “Āl-e Burhān”, by C.E. Bosworth. See also Hodgson’s description of the amīr-aʿyān system: Marshall Hodgson, The Venture of Islam: Conscience and History in a World Civilization, 2 The Expansion of Islam in the Middle Periods (Chicago: University of Chicago Press, 1974), 46-61. For an Ottoman experience, see Colin Imber, Ebu’s-Su’ud: The Islamic Legal Tradition (Stanford: Stanford University Press, 1997).
(Suggested Bluebook citation: Sohail Hanif, When Worship Meets Taxation: Socio-Political Reflections on the Rules of Zakat, Islamic Law Blog (Mar. 31, 2022), https://islamiclaw.blog/2022/03/31/when-worship-meets-taxation-socio-political-reflections-on-the-rules-of-zakat/)
(Suggested Chicago citation: Sohail Hanif, “When Worship Meets Taxation: Socio-Political Reflections on the Rules of Zakat,” Islamic Law Blog, March 31, 2022, https://islamiclaw.blog/2022/03/31/when-worship-meets-taxation-socio-political-reflections-on-the-rules-of-zakat/)