The Administration of the Zakah (4/5)
Abu`l Hasan al-Mawardi
As for treasure, be it buried or otherwise, of an Islamic minting, it is treated as objects found which must be made public for a year: either the owner appears, or the finder may take possession of it, but remains liable for replacing its value to the owner should he appear.
The tax collector should make a supplication for those paying the zakah in order to encourage them to do it promptly, to distinguish them from the dhimmis who pay the jizyah poll-tax, and because of the words of Allah: "Take from their wealth a sadaqah, that it might cleanse and purify them thereby, and pray for them; surely your prayer will be a tranquillity for them" (Qur'an, Surah At-Tawbah, 9: 104). "Cleanse and purify them thereby," means cleanse them of their wrong actions and purify their actions; "pray for them" may either mean "seek forgiveness for them," and this is the opinion of Ibn 'Abbas, may Allah be pleased with him, or "make supplication for them," and this is the opinion of the majority; "surely your prayer will be a tranquillity for them," has four interpretations: i. as a means of bringing them closer (to Allah), and this is the opinion of Ibn ‘Abbas, may Allah be pleased with him; ii. as a mercy for them, according to Talhah; iii. in order to establish them firmly, according to Ibn Qutaybah; and iv. to give assurance to them. This is recommended of the collector if he is not asked; as for his obligation to do it if asked, then it is recommended according to some, and an obligation according to others.
If a man conceals the zakah payable on his wealth from the collector and hides it from the collector, who is a just (collector), then the latter should seize it if he is able and investigate the reason for its concealment: if he did it in order to take responsibility for its payment himself, then he imposes no discretionary punishment; if its concealment was in order to defraud and deny a right of Allah over it, then he should impose a discretionary punishment, although he does not inflict any additional penalty. According to Malik, however, he should take a half of his wealth, in accordance with the saying of the Prophet, may the peace and blessings of Allah be upon him: "Whoever tries to defraud regarding the tax, then I shall take it, together with half of his wealth, this being one of the decrees of Allah, but the family of Muhammad has no portion in it." His saying, may the peace and blessings of Allah be upon him, "There is no claim to someone's wealth other than the zakah," allows the former hadith to be interpreted as a reproach and a threat, rather than an obligation just as his saying, "The person who kills his slave, then we will kill him," since the murderer is not killed for the murder of his slave.
If the collector acts unfairly in collecting the zakah, but is just in its distribution, then it is permitted to conceal it from him, but it is also acceptable to hand it over to him. If he is fair in its collection, but unjust in its distribution, then it must be hidden from him and it is not permitted to hand it over to him, as those subject to the zakah are not thereby relieved of Allah's right on their wealth, whether the zakah is handed over willingly or under coercion, and they must pay it themselves to those belonging to the various categories entitled to it. Malik says, however, that it is accepted of them, and they do not have to pay it a second time.
If the tax-collector, be he a delegator or an executory agent, affirms that he has collected the zakah from those liable to it, then his word is accepted as long as he is in authority; if, however, he is no longer in office, there are two opinions as to whether his word is accepted, based on the two opinions concerning the payment of the zakah on apparent wealth - that is, those who say that it is recommended, and those that it is obligatory: if it is recommended, then his word is accepted after he is no longer in office; if it is obligatory, his word is not accepted except with proof; it is also not sufficient that he bear witness to having collected it, even if he is a just person.
If the owner of the wealth claims to have paid it, then if this happens when the agent has been delayed in coming to him, and after a period in which he would have been able to pay it, then his word is accepted, but the agent may ask him to take an oath if he suspects him of lying. There are two opinions as to the legal consequences of this oath: the first, is that it is legally binding, and that if he refuses to swear an oath, the zakah is taken from him; and the other, is that it merely has an affirmative status, in which case it is not taken from him if he refuses to make the oath. When the person makes this claim in the presence of the collector, his word - as to having made the payment - is not accepted in the case of those who say that this payment is obligatory, although it is accepted in the case of those who say that it is merely recommended.
As for the division of the zakah among those who are entitled to it, it is distributed amongst those mentioned by Allah, may He be exalted, in His noble Book: "Surely the sadaqah is for the poor, and the indigent, and those who collect it, and those whose hearts may be brought closer thereby, and for the setting free of slaves, and for (the relief of) debtors, and those fighting in the way of Allah, and those travelling - an obligation from Allah, and Allah is the Knowing, the Wise" (Qur'an, Surah At-Tawbah, 9: 60).
The Messenger of Allah, may the peace and blessings of Allah be upon him, used to divide between them in accordance with his judgement and ijtihad until one of the munafiqun approached him saying: "Be fair; O Messenger of Allah !" to which he replied: "May your mother overburden you - if I am not just, then who is?" Then the above-mentioned ayah was revealed to him, and the Prophet, may the peace and blessings of Allah, said: "Surely Allah, may He be exalted, is not contented that the division of the wealth be done by one of the close-standing angels or a prophet who has been sent - so He has taken charge of its division Himself!" Thus it is obligatory that the division of the tax on animals, and the 'ushr ('tenth’ which becomes a twentieth if irrigation is used) of crops and fruit, the zakah of wealth and mines, and the fifth on treasure, be made into eight parts, and paid to the eight various categories if they exist, as these taxes are all included in zakah, and it is not permitted to omit any one of them. Abu Hanifah, however, says that it is permitted to pay it to just one of the eight categories, even though the others exist, and it is not obligatory to pay it to all of them. But the equal treatment accorded them all by Allah in the ayah referring to the tax prevents one from restricting it to one of them; thus the collector must, after having gathered together the complete amount, and when all eight categories exist, divide it into eight portions equally:
First, he gives a portion to the poor (faqir), the poor being those who possess nothing;
Second, then he pays the second portion to the indigent (miskin): the indigent are those who do not possess enough wealth to make do - so the faqir is in a worse state than him. Abu Hanifah, however, says that the miskin is in a worse state than the faqir, arguing that it refers to those who have been immobilised by their lack of everything. Thus it is paid to each of these categories, if there is sufficient zakah, such that they are brought out of their state of poverty or indigence to the lowest state of wealth - and this is relative to their situation: for some, a dinar will be enough to make them (relatively) rich, if he is a person of the markets and he is able to make a profit enough to suffice him, in which case it is not permitted to give him any more than this; for others, a hundred dinars would hardly be enough, in which case it is permitted to give him more than this; there is also the man of vigour who earns enough to make his living by manufacturing, in which case it is not permitted for him to be given any of this tax, even if he does not possess so much as a dirham. Abu Hanifah, may Allah be content with him, estimates the maximum that may be given the faqir or the miskin to be a sum less than two hundred dirhams of silver, or less than twenty dinars of gold, so that he himself does not become liable for the zakah because of the amount he has taken in zakah.
Third, this is the portion for the agents, of whom there are two kinds: those who demand and collect, and those who divide and distribute - including treasurers, collectors, those in change and those who obey orders. Allah has ordered that their remuneration be from the zakah monies, so that no other tax besides the zakah be taken from the owners of the wealth. An amount is paid to them from their portion which is equal to the wages of other officials like them; if their portion amounts to more than their wages, then this surplus is returned to the other portions; if it is less, then their wages are made up from the zakah wealth, according to one method, or from the part used for the public good, according to another;
Fourth, this portion is for those whose hearts may be induced to come closer by giving to them, and they are of four kinds: i. those who are brought closer so that they may help the Muslims; or ii. those whom one brings closer so that they may desist from harming the Muslims; iii. those brought closer because of their desire for Islam; iv. those brought closer in order to stimulate the desire in their people and family for Islam. If those among these four types are Muslims, it is permitted to give them from the portion of the zakah allotted to "those whose hearts may be brought closer"; those among them who are mushrikun (idol worshippers) are given from the portion allotted to the public interest from the fay booty and booty itself (ghaneemah) rather than from the zakah wealth;
Fifth, according to ash-Shafi'i and Abu Hanifah, the portion allotted for slaves is used so that makatib slaves may complete their instalment payments towards buying their own freedom, while Malik says it is used to buy slaves in order to set them free;
Sixth, this portion is for debtors and they are of two types: i. those who have incurred debts for their own personal benefit in which case, if they are poor, enough is given to pay their debts, but not if they are wealthy; ii. those who have incurred debts for the benefit of the Muslims as a whole, in which case an amount is given them which covers their debts and no more, irrespective of whether they are poor or wealthy;
Seventh, this portion is for those fighting in the way of Allah, namely the members of the raiding parties; an amount from their portion is paid which is enough to cover their needs for conducting their jihad ; if they go to a ribat on the frontier, the cost of travel there is given them, and if possible an amount for the expenses which will be incurred during their stay; if they return after having completed the jihad, they are given for the expenses incurred in their travel there and their return;
Eighth, this portion is for travellers who do not find the means to travel: it is given to them from their portion as long as their journey does not involve any act of disobedience - that is, an amount which suffices them, irrespective of whether they are setting out or in the middle of their journey, although Abu Hanifah says that it is only given to those who are in the middle of their journey, and not to those who are setting out.
(Continued)