Draft Constitution 143 to 152

Article 143

Zakat  is collected from Muslims, and is taken from the wealth which the Shari’ah has specified such as money, the profits of trade, cattle and grains. It is not taken from anything which the Shari’ah did not mention. It is taken from every owner irrespective of whether they were legally responsible/accountable (mukallaf) such as the mature, sane person or whether they were not legally responsible such as the child and the insane. The Zakat is placed in a specific section of the Bayt al-Mal, and is not spent except upon one or more of the eight categories mentioned in the noble Quran.

This article encompasses the following five issues: first: the obligation of Zakat upon the Muslims; second: it is taken from the property that the Shari’ah specified and nothing else; third: it is taken from every owner; fourth: it is placed in a specific section of the Bayt al-Mal; fifth: it is not spent upon anyone other than the specific individuals that meet certain characteristics and numbers.

As for the first issue, which is the obligation of Zakat, its evidence is the noble Quran such as His (swt) words “And give Zakat” (TMQ 2:43), and “and (O wives of the Prophet) give Zakat” (TMQ 33:33), and “Men whom neither trade nor sale diverts from the Remembrance neither of Allah nor from performing prayer nor from giving Zakat” (TMQ 24:37). And there is also proof from the Sunnah, when the Messenger of Allah  sent Mu’adh to Yemen and said to him “Tell them that Allah obligated upon them charity (Sadaqah) which is taken from their rich and given to their poor” (agreed upon from Ibn Abbas), and the narration “Islam is built upon five” agreed upon from Ibn Umar, in which he  mentioned “and to give Zakat”. It is reported from Abu Hurayrah that a Bedouin came to the Prophet  and said “Guide me to an action that if I did it I would enter Paradise”. He  said “Worship Allah and do not associate anything with Him, and establish the obligatory prayers, and pay the necessary Zakat, and fast Ramadan” (reported by al-Bukhari). And it is narrated from Qais who said: “Jarir Bin Abdullah said “We gave the pledge of allegiance to the Prophet  to establish the prayer and give Zakat and give advice/ be sincere to every Muslim” (agreed upon). These evidences indicate the obligation of Zakat, and as for the fact that is not taken from anyone other than the Muslims, this is due to the words of the Messenger  in the narration of Mu’ath “taken from their rich”, and as for the fact that it is given to the Muslims and not to anyone else is due to the words in the same narration “and given to their poor”, in other words the Muslims.

With respect to the second issue, which is that Zakat is not taken from any property other than that which has been specified by the Shari’ah, its evidence is that the Legislator (swt) restricted the categories from which Zakat is taken by defining the amount which is taken from each of these categories. So everything that the Shari’ah defined a nisab (minimum level after which the Zakat becomes obligatory) for, has Zakat taken from it once it reaches the nisab and if it doesn’t reach it then nothing is taken from it, due to what was related from Jabir who said “The Messenger of Allah said “There is no Sadaqah on less than five dirham, and nothing on less than five female camels, and nothing upon less than five portions of dates” (reported by Muslim).

Zakat is not taken from property that has not had a nisab defined by the Shari’ah. This is because though the verse is summarised (mujmal), the narrations came and explained it. And so the narrations regarding Zakat explain the generality of the verse and are not specifications for it. There is a large difference between explanation and specification. The prayer came in a summarised form “and establishes the prayer” and the Messenger  came and explained it, and so anything outside of what the Messenger  explained as part of the prayer is not permitted to be considered relevant, since we are restricted by what the Messenger  explained. In the same manner, the verse regarding Zakat came in a ssmmarised form “and give Zakat” (TMQ 2:43), “take from their wealth” (TMQ 9:103), “Sadaqaat (Zakat) are only for” (TMQ 9:60), and the narrations came and explained the categories from which Zakat is taken by explaining the amount which is taken from these categories, and the nisab for them, Zakat is not taken from anything else, and it is forbidden to take Zakat from anything other than whatever the Shari’ah mentioned the nisab for and the amount taken from it. So accordingly there is no Zakat upon housing, or cars or olives, since the Legislator did not mention the nisab for any Zakat upon them, nor the amount which should be taken from them if they reached the value of the nisab, and therefore there is no Zakat upon them, and taking Zakat is limited to the properties which have been mentioned in a Shari’ah text. Therefore Zakat is only taken from the ten things which have been mentioned in authentic texts, which are camels, cows, cattle, gold, silver, wheat, barley, dates and raisins.

As for camels and cattle, the evidence is what has been related from al-Zuhri from Salem from his father who said “And the Messenger wrote the Sadaqah (Zakat), and did not send it to his workers before he died, he said: and so Abu Bakr sent it after him and acted according to it until he died, and then Umar sent it and acted according to it until he died. He said: Umar died the day he died, and he gave his will at that time. He said: in it, was that there was a sheep (to be given) for every five camels, until twenty four camels, if there were twenty five camels then a female baby camel (bint al-makhaadh) is due, and if they didn’t have one then a male camel son of a milk-bearing camel (ibn laboon), if there were more than thirty five camels then a daughter of a milk-bearing camel (bint laboon) is due up until forty five camels, and if there is one more up until sixty then a female camel (hiqqah) is due, and if there is more than that up until seventy five then a female camel whose front teeth (jaza’a; older than four years) is due, and for more than that up until ninety then two daughters of milk-bearing camels are due, and if there are more than that up until one hundred and twenty then two female camels are due, and if there are more than that then for every fifty a female camel is due and for every forty a daughter of a milk-bearing camel is due. And in cattle, for every forty until one hundred and twenty one female sheep is due, if there is one more than that up until two hundred then two female sheep are due, and if there are more than that then up until three hundred three female sheep are due, and if there is more than that then nothing is due until four hundred, at which point a female sheep is due for every one hundred” (reported by Ahmad and Abu Dawud and Al-Tirmidhi). It is narrated from Anas, “Abu Bakr wrote to them: This is the obligation of Sadaqah which the Messenger  obliged upon the Muslims and which Allah and His Messenger  commanded with” (reported by al-Bukhari), and then mentioned camels and cattle in the same manner as the narration of al-Zuhri. The bint al-makhaadh is a female camel between one and two years, and a bint labun is older than two years whose mother is milk bearing through giving birth, and the daughter of such a camel is called the bint labun. And the hiqqah is the female camel older than three years, and the jaza’a is older than four. The fact that the narrations mentions the bint labun for more than thirty five camels indicates the permissibility to give a bint labun instead, which is why Bukhari added ‘female’.

As for cows, the evidence is what has been related from Mu’adh Bin Jabal who said “The Messenger of Allah  sent me to Yemen and ordered me to take a baby cow (al-tabee’ah, al-tabee’a; male or female) for every thirty camels, and a cow (musinna) for every forty” (reported by Ahmad, Abu Dawud, Al-Nasa’i and Al-Tirmidhi who considered it Hasan). Yahya b. al-Hakm narrated from Mu’adh who said “The Messenger of Allah sent me to take the Sadaqah from the people of Yemen, and so ordered me to take a tabee’a from every thirty, and a musinna from every forty, and then they asked me what should be given for between fifty and sixty, and sixty and seventy, and eighty and ninety, and so I returned and informed the Prophet  who ordered me not to take anything between those” (reported by Ahmad with a chain considered Hasan by al-Zayn). The tabee’ah and tabee’a are the male and female cows of less than one year in age, and the musinna is the female cow in her second year, and the fact that the narration mentions the musinnah indicates that the male cow will not suffice in its place, however Tabarani related from Ibn ‘Abbas a narration raised to the Prophet  which mentioned “and in every forty there is a musinna or a musinn” which indicates its permissibility.

As for gold and silver, its evidence is what is related from ‘Ali b. Abi Talib (ra) from the Prophet  who said “If you had two hundred dirhams  for a year, then five dirhams are due from them, and there is nothing upon you (in terms of gold) until you have twenty dinars, so if you had twenty dinars for a year then half a dinar is due” (reported by Abu Dawud and it is Hasan). A dirham is six daaniqs, and a daniq is two qiraats, and a qiraat is two tazuj and a tazuj is two habbah, and a habba is a sixth of an eighth of a dirham, which is a part of the forty eight parts of a dirham. This is the weight of the Shari’ah dirham which is mentioned in the narration. A dinar is a mithqaal, and the mithqaal is a dirham and 3/7 of a dirham, which is the weight of the Shari’ah dinar mentioned in the narration.

As for wheat, barley, dates and raisins, the evidence is what has been related by al-Hakim and al-Bayhaqi and al-Tabarani from the narration of Abu Musa and Mu’adh when the Prophet  sent them both to Yemen in order to teach the people the issue of their Deen, saying “Do not take Sadaqah except from these four: Barley, wheat, raisins and dates” (authenticated by al-Hakim and Bayhaqi said that the narrators are trustworthy and the chain is connected). Al-Daraqutni reported in his Sunan from Abdullah Bin Amru who said “The Messenger of Allah only made Zakat in the following four: Barley, wheat, raisins, and dates”, and it is narrated from al-Shu’ba that the Prophet  wrote to the people of Yemen saying “Sadaqah is only in wheat, barley, dates and raisins” (reported by al-Bayhaqi from al-Shu’ba as a Mursal narration).

As for the narrations that mention Zakat upon corn – they are weak. For example Ibn Maja reported from ‘Amru b. Shu’ayb from his father from his grandfather “The Messenger of Allah made Zakat in the following: Barley, wheat, raisins, dates and corn”. Al-Hafiz said in al-Talkhis: “Their chains, in other words the chains of al-Daraqutni and Ibn Maja, are baseless since al-Arzami is in them and he is rejected.” And similarly what al-Bayhaqi reported from al-Hasan who said “The Messenger of Allah did not make Zakat obligatory except in ten things: Camels, cows, sheep, gold, silver, barley, wheat, dates, raisins – Ibn ‘Uyayaba said: I think he said and corn”. Al-Hafiz said in al-Talkhis that the report of al-Hasan is a Mursal narration from ‘Amru b. ‘Ubayd who is very weak, and Abu Hatim said his narrations are not considered. Similarly al-Bayhaqi himself mentioned in his Sunan al-Kubra in another report from al-Hasan which had ‘Amru b. ‘Ubayd in it: “The Messenger of Allah did not obligate Sadaqah except upon ten and then he mentioned them, and mentioned a type of barley”. So, the two narrations with their weak chains, are different, and so accordingly the narration about the Zakat upon corn is weak.

These are the four categories (wheat, barley, dates and raisins) that have Zakat taken from them, and no Zakat is taken from anything else at all. As for what is narrated from Jabir that the Prophet  said “A tenth is due from whatever is watered by rivers and rain, and a twentieth from whatever is irrigated” (reported by Muslim), and what is narrated from Ibn Umar that the Prophet  said “A tenth is due from whatever is watered by the sky and rivers or is ‘itriyya , and a twentieth is due from whatever is watered by sprinkling” (reported by al-Bukhari), and al-‘itri is something that takes its water through its roots without necessarily being watered, and from Abu Sa’id that the Prophet  said “There is no Sadaqah due on anything less than 5 Awsuq”: All of these narrations are summarised (mujmal) texts regarding the Zakat upon crops and fruits, which other narrations came and explained, and defined exactly what has Zakat taken from it, and above that their explanations came in a restrictive manner, such as what was mentioned by al-Hakim and al-Bayhaqi and al-Tabarani, “Do not take Sadaqah except from these four” (authenticated by al-Hakim and al-Bayhaqi said its narrators are trustworthy). And what al-Daraqutni reported in his Sunan: “The Messenger of Allah only made Zakat in: Barley, wheat, raisins, and dates”.   There is no doubt that the words “not” and “except” in the first narration, and “only” in the second, are all styles of restricting. Accordingly they indicate the restriction of Zakat of crops and fruits to these four, and this is why the narrations “whatever is watered by the sky” and “whatever is watered by the rivers” and so on are not related to taking Zakat from whatever is grown, but rather they are summarised texts explained by other texts, and Zakat upon what is grown is restricted to being taken from the five mentioned categories and nothing else. This is supported by other narrations of the same meaning, such as what was related by al-Daraqutni in his Sunan from ‘Amru b. Shu’ayb from his father from his grandfather that the Prophet  said “A tenth is due from dates, raisins, wheat and barley”. All of this indicates that Zakat upon crops and fruits is only taken from specific categories, counted in some narrations as four which are barley, wheat, raisins and dates, and there are many narrations about this and all of them authentic. This all confirms that there is no Zakat on crops and fruits except what is mentioned in these texts.

With respect to His (swt) words “And give its right on the day of its harvesting” (TMQ 6:141), this verse was not revealed for Zakat since it is a Makkan verse, and Zakat was only obligated in Madinah, which is why it mentions pomegranates which does not have anything due upon it. Mujahid said: “if he harvested his crop he would throw it to them from the grain tips, and if he found (fruit on) his palm trees he would throw it to them from the stalks”. And an-Nakha’i and Abu Ja’far said “this verse is abrogated, and it is understood in relation to whatever resulted from his harvesting, evidenced by the fact that the pomegranate mentioned after it has no Zakat upon it”. It is mentioned in the Al-Muheet dictionary “harvesting crops, and plants are harvested….to cut by sickle”. So even if it is accepted that it is part of Zakat then it is applied to whatever has been harvested, because pomegranate is not harvested, and so it is from the summarised class of evidence, and the narrations came and explained from which harvested things Zakat applies to, which are wheat, barley and corn. In any case, since the verse was revealed in Makkah, and Zakat had not yet been obligated, there is enough reason not to use it as evidence.

As for what was related from Abu Sayyarah who said “I said: O Messenger of Allah, I have bees. He said then pay a tenth. I said: O Messenger of Allah, protect their mountains for me, so he agreed”, and what was narrated from ‘Amru b. Shu’ayb from his father from his grandfather who said: “Hilal, one of the tribe of mut’aan came to the Messenger of Allah with a tenth of the bees he had, and asked him to give him one of the valleys which was called Salba, and so he gave him that valley. When Umar Bin al-Khattab became ruler, Sufyaan Bin Wahb wrote to him asking him about it, and so Umar wrote: If they give you what they used to give to the Prophet, which was a tenth of his bees, then protect Salba for him, and if not, they are only flies of the rain, anyone who likes can eat it”, these are not suitable as evidence that Zakat is taken from honey. This is because the chain of the narration of Abu Sayyarah is disconnected (munqati’), as it is from Sulayman b. Musa from Abu Sayyaara and Bukhari said “Sulaiman did not meet anyone from the companions and there is nothing regarding Zakat on honey that is authentic”. The narration of ‘Amru b. Shu’ayb is reported by Abu Dawud and Al-Nasa’i, and Ibn ‘Abd al-Barr considered it Hasan in al-Istidhkar, but despite that it does not indicate that Zakat is obliged upon honey, since he paid it voluntarily and the valley was kept for him in exchange, as proven by the evidence of what Umar (ra) did having understood the reason and therefore made a similar order. This is supported by what is reported from Sa’d b. Abu Dhi’ab “That the Prophet  appointed him over his people and he said to them: Give a tenth of the honey”, which is considered a weak narration by Bukhari and al-Azdi and others, and any how Shafi’i said “And Sa’ad Bin Abi Dhi’ab told what was indicated that the Prophet  did not order him with that, but rather it was something he thought of and so he voluntarily gave it through his people”. All of this indicates that there is no Zakat upon honey and even the narrations which are used as evidence indicate that there was no obligatory Zakat upon it.

All of these texts indicate that no Zakat is taken from anything which the Shari’ah has not explained the nisab for. This is because the texts explain the nisab, and the amount which should be taken, and therefore Zakat is obligatory upon it. And the question would be, upon what basis can Zakat be taken from anything which has no text related to it? And upon what basis could a specific amount be taken from it? This is especially the case since the texts which explained the nisab and the amount due did not come with an illah, and so it would not be correct to do Qiyas upon them (in other words, to use them as a basis for analogy). Above that, there are other texts which have explained the specific things that Zakat is due upon, and didn’t stop there but rather restricted Zakat to these things, and used more than one style to demonstrate this restriction. This alone indicates that Zakat is not taken from anything other than the specific items which are mentioned in the texts, and nothing at all is due from anything else.

It might be argued that the text in the Quran and Sunnah made the obligation of Zakat general upon all wealth, since in the Quran He (swt) said “Take Sadaqah from their wealth” (TMQ 9:103), “And those in whose wealth there is a right” (TMQ 70:24) and in the narration “Teach them that Allah made Sadaqah from their wealth obligatory upon them” (agreed upon from Ibn ‘Abbas), and this encompasses all the categories of wealth, and so Zakat is binding upon all of them except from anything the Shari’ah made as an exception, and the Shari’ah did not make anything an exception except for horses and slaves due to his  words “There is no Sadaqah due from a Muslim upon his slave and horse” (agreed upon from Abu Hurayrah).

The response is that this text is summarised (mujmal) and requires clarification, and the Sunnah clarified it comprehensively like interest, since the prohibition regarding interest came summarised and the Sunnah explained it, so it cannot be said that interest is prohibited in everything since the prohibition was general, rather it is said that interest is prohibited in usurious wealth which the Sunnah came and explained since the text was summarised and the Sunnah explained it, and so there is no interest in anything else. In the same manner it cannot be said that Zakat is obligatory in everything since the order for it came in a general form, but rather it is said that Zakat is obligatory in the wealth which the Sunnah came and explained the nisab of the Zakat for, and in that manner explained the categories of wealth that Zakat is taken from. This is since Allah (swt) gave a general summarised order for Zakat, and did not explain the amount which should be taken nor when it should be taken, and so the narrations came and explained the obligatory amounts due, the nisab after which these amounts become due, when they would be obligatory, and whether it would become due simply due to it being held such as with crops or after a period of time such as with gold and silver. Consequently Zakat is taken according to this explanation from the Sunnah, and so the wealth which the Sunnah explained how and when Zakat is taken from is the wealth upon which Zakat is due, and anything else has no Zakat due upon it. Rather, it cannot be taken from it in any way since the time of when it would be due is not known, or the amount to be taken, or the nisab after which it would become due, and so it would not be at all possible to take from anything other than what the Shari’ah explained.

There are clear texts reported in these issues: it is related from Abu Hurayrah who said “The Messenger of Allah  said “There is no one who owns gold or silver, and does not pay its right, except that on the Day of Judgement plates are made from the hellfire for him, and his sides and forehead and back is branded with them” (agreed upon), and he  said “There is no Sadaqah on less than five dirham” (reported by Muslim from Jabir), and it is related from Ali Bin Abi Talib (ra) from the Prophet  “If you had two hundred dirham for a year, then five dirham are due from them, and there is nothing upon you (in terms of gold) until you have twenty dinar, so if you had twenty dinar for a year then half a dinar is due” (reported by Abu Dawud and it is Hasan). And the Prophet  said “There is no one who owns camels or cows or cattle and does not pay its Zakat, except that on the Day of Judgement they are greater than they were and they butt him with their horns and trample him under their hooves” (agreed upon from Abu Hurayrah), and he  said “A tenth is due on dates, raisins, wheat and barley” (reported by al-Daraqutni in his Sunan from ‘Amru b. Shu’ayb from his father and from his grandfather). And it is reported from the same chain: “The Messenger of Allah  only made Zakat in wheat, barley, dates and raisins”. And from Mu’adh Bin Jabal when he was sent to Yemen by the Prophet  who said to him “Take the grain from the grain, the sheep from the flock, the camel from the camels, and the cow from the cows” (reported by Abu Dawud, Ibn Maja and al-Daraqutni).

Accordingly, Zakat is only obligatory upon the wealth which the text came and explained, and is not obligatory upon anything else at all.

As for the claim that the Prophet  made certain wealth as an exception from Zakat, which are the slaves and horses, and this means that anything which was not made an exception has Zakat due upon it, is a false claim, since the Prophet  did not make specific wealth as an exception from Zakat as he  did not say that Zakat is obligatory upon all wealth except for slaves and horses. Rather the order regarding Zakat came summarised (mujmal) and the texts clarified in detail what was summarised, and so the issue of exception is not present at all. As for the story of the slaves and horses, the Messenger  did not make them as an exception but rather he simply informed that there is no Zakat due upon them; al-Bukhari reported from Abu Hurayrah who said “The Prophet  said “There is no Sadaqah due from a Muslim upon his horse and boy”, and in another chain from Abu Hurayrah from the Prophet  who said “There is no Sadaqah due from a Muslim upon his slave and horse”, and from Ali (ra) who said “The Messenger of Allah said “I have exempted you from Sadaqah upon your horses and slaves so give Sadaqah” (reported by Ahmad and the authors of the Sunan, and al-Hafiz said its chain is Hasan), and this is not an exception rather it is only information, and therefore it is not wealth which has been made as an exception from Zakat.

In the same manner there is a text which mentions that there is no Zakat on donkeys; Abu Hurayrah said “The Messenger of Allah  was asked about Zakat upon donkeys and so he said “Nothing has come to me with respect to it except for this verse – whoever does an atom’s weight of good will see it, and whoever does an atom’s weight of evil will see it” (agreed upon), and he  was also asked about horses as mentioned in the narration of Abu Hurayrah. This was not an exception, rather it was simply an answer to a question, and this cannot be considered as the Messenger  making slaves, horses and donkeys as exceptions to wealth and so saying: “there is no Zakat upon these and Zakat has been made obligatory upon all wealth”, since this completely contradicts the Shari’ah texts on the issue. There is no exception reported in the texts at all, because exception occurs if there is a general text regarding a rule, and in the same text, in other words the same sentence, there is an exception made to that through one of the instruments or styles used to make an exception. For example, “the people came except Muhammad”, or “Zakat has been obligated upon everything except for horses and slaves”. Or it could occur if there was a general text, and another specific text came which specified the generality of the first text and was thereby an exception from it, and this is not present in the texts regarding the horses, slaves and donkeys because the text regarding Zakat was a summarised (mujmal) text and the Sunnah came and explained it. Additionally the narration regarding the horses and slaves did not come as a general sentence which was then made an exception to through the use of one of the instruments or styles of making exceptions, but it was rather a separate sentence and is therefore considered to be information and not an exception.

As for Zakat upon trade, the evidence for its obligation is the narration and the Ijma’ of the companions: Abu Dawud reported by his chain from Sumura Bin Jundub who said “The Messenger of Allah  used to order us to pay the Zakat upon what we had prepared for trading” (al-Hafiz said in Bulugh al-Muram that Abu Dawud reported it and its chain has some weakness). And from ‘Amru b. Hamas from his father who said “Umar ordered me saying: Pay the Zakat upon your wealth, and so I said: I have no wealth apart from pipes and condiment. So he said: Value them and then pay the Zakat upon them” (reported by Ahmad, al-Shafi’i and others). These and similar stories to this spread and no one amongst the companions rebuked it and so therefore it is considered to be an Ijma’. There is no Zakat due upon pipes and condiment themselves, and they are not normally possessed in such a big quantity such that there would Zakat due upon them unless they were amassed for trade, and so this is an indication that they were prepared for trading.

As for the third issue, which is the taking of Zakat from every owner, this means that Zakat is taken from every Muslim, male or female, sane or insane, mature or prepubescent. With respect to male and female, this is apparent from the generality of the texts, since Zakat is a right connected to the wealth and it is the single duty due from the wealth from the angle of it being wealth, which is why Allah (swt) said “Take Sadaqah (alms) from their wealth” (TMQ 9:103) and “And those in whose wealth there is a recognised right” (TMQ 70:24) and in the narration “then tell them what Allah has obligated upon them from Sadaqah upon their wealth” (agreed upon from Ibn ‘Abbas), and in the agreed upon narration which came as an answer to the question of the Bedouin “then he is asking about Islam” until he said: “and the Messenger of Allah  mentioned Zakat to him, and he said: Is there anything else upon me? He  said: no, unless you give it voluntarily” which indicate that the obligation is upon the wealth from the aspect of it being wealth, without any consideration as to whether the owner was legally responsible or not. Allah (swt) made many obligations upon the Muslim who owned wealth in his characteristic as someone who possessed wealth, or in other words was rich, such as the obligation of Jihad with wealth, and finding the hungry, and paying expenses, and so on, but He (swt) did not obligate anything upon the wealth which was owned by Muslims except for one right which is Zakat, and restricted the obligatory rights over wealth to it and forbade any other right to be imposed upon it. This indicates that the obligation is empowered over the wealth in its aspect as wealth without looking at whether the owner was legally responsible or not, and this is a proof that wealth is what has Zakat taken from it, even if its owner was not legally responsible, in other words even if they were a child or insane. Additionally, when Allah (swt) ordained obligations upon the Muslim, in his capacity as an owner of wealth, in other words rights connected to wealth, they were obligated upon the Muslim generally irrespective of whether they were legally responsible or not, such as paying upkeep for close relatives and wives, and any criminal penalties or fines, and paying the value of anything which they destroyed, and so all of these are obligatory upon the child and the insane since they are connected to the wealth, and the Zakat is the same since it is a right connected to wealth. Above and beyond that, the Prophet  said “Whoever takes responsibility for an orphan, trade on his behalf and do not leave him to eat Sadaqah”, in other words the Zakat, reported by Al-Tirmidhi and al-Daraqutni from Amru Bin Shu’ayb from his father from his grandfather ‘Abd Allah b. ‘Amru, and even though al-Muthna b. al-Sabah, who is differed over, is in the chain, it is also reported from ‘Amru b. Shu’ayb to Umar Bin al-Khattab (ra) as a mawquf narration, and analogy (Qiyas) is made with the insane on the basis that both are not legally responsible, and so whatever is obligatory upon the child who is not legally responsible is similarly obligatory upon the insane person.

As for the fourth issue, which is the fact that it is placed in a special section in the Bayt al-Mal, this is because whatever wealth is due to the Muslims, and the owner is not specified, then it is from the rights of the Bayt al-Mal. And every right which is necessary to be spent upon the interests and affairs of the Muslims, is a right upon the Bayt al-Mal. Zakat, although it is from what the Muslims deserve, however its owner has been specified by the text of the Legislator (swt), since the Shari’ah specified its owner at the time it specified the aspects which it should be spent upon, and limited it to those eight areas alone. Allah (swt) said “Sadaqah (Zakat) is only for the poor, the needy, and those employed to collect it, to attract the hearts of those inclined (to Islam), to free the captives, and for those in debt, and for Allah’s cause, and for the traveller” (TMQ 9:60), and as long as it has been restricted to these aspects then it is not from the rights of the Bayt al-Mal, since it is wealth for specific aspects which is not permitted to be spent anywhere else, and the Bayt al-Mal is simply the place for safekeeping it, but it is not considered part of the rights of the Bayt al-Mal. Rather the Bayt al-Mal is simply the place for storing the wealth because it is paid to the Khalifah and he is the one who distributes it; it is reported from Anas that a man said to the Messenger of Allah  “If I gave the Zakat to your messenger then am I free of blame with Allah and His Messenger”, he  said “Yes, if you gave it to my messenger then you are free of blame with Allah and His Messenger, so you have its reward, and its sin is on the one who alters it” (reported by Ahmad and authenticated by al-Haythami and al-Zayn). And it is reported from Bashir b. al-Khasasiyah who said “We said: O Messenger of Allah, a people from the people of Sadaqah make assault/aggression against us, can we hide our wealth according to what they violate against us? He said: No” (reported by Abu Dawud and ‘Abd al-Razzaq, and al-Mundhiri did not comment upon it). So this is proof that the Zakat is paid to the Khalifah and he is the one who sends his governors and workers to gather it, and then it is spent upon the specified aspects according to his opinion and Ijtihad, which is why the place for safekeeping it is the Bayt al-Mal. However this is simply to store the Zakat since it cannot be spent anywhere except upon the areas specified, and therefore it is placed in a special section. So even though Zakat is from the income of the Bayt al-Mal since it is paid to the Khalifah, and people are punished if they defer paying it, it is not spent unrestrictedly according to his opinion and Ijtihad, but rather his opinion and Ijtihad is restricted within the aspects, or restricted to those deserving of Zakat alone and nothing else.

As for the fifth issue: the fact that it is not spent except upon the specific individuals whose characteristics and numbers have been defined, is because Allah (swt) specified whom Zakat can be given to and limited its spending to those whom He (swt) had defined; Allah (swt) said “Sadaqah (Zakat) is only for the poor, the needy, and those employed to collect, to attract the hearts of those inclined (to Islam), to free the captives, and for those in debt, and for Allah’s cause, and for the traveller” (TMQ 9:60). So it has been limited by the word “Only (innama)” which is from the styles of restriction, and therefore it is not permitted to spend it on anyone other than them at all, which is why the Messenger  said “Sadaqah is not permitted for the rich, nor the one who is strong upright” reported by Al-Tirmidhi from ‘Abd Allah b. ‘Amru, and he said it was Hasan, and al-Hakim reported it from Abu Hurayrah and he authenticated it. And he  said regarding Zakat “There is no part of it for the rich, nor the one able to earn” reported by Ahmad and Abu Dawud and Al-Nasa’i and al-Dhahabi said that the narration is authentic and its narrators are trustworthy.

So this is evidence that it is not spent on anything at all outside of the mentioned eight categories.

Article 144

Jizya is collected from non-Muslims (people of dhimma). It is to be taken from the adult men if they are capable of paying it, and it is not taken from women or children.

Its evidence is from the Quran and the Sunnah. As for the Book, Allah (swt) said “until they pay the Jizya if they are capable and feel themselves subdued” (TMQ 9:29). As for the Sunnah then “the Messenger of Allah wrote to the fire-worshippers of Hajar, calling them to Islam, so whoever becomes Muslim it is accepted from him, otherwise the Jizya is imposed upon him and their slaughtered meat is not eaten and they are not married to a woman” (reported by Abu ‘Ubayd in al-Amwal, Abu Yusuf in Al-Kharaj and others). It is only taken from the one capable due to His (swt) words “from a hand”, in other words from the one capable. It is taken from the men, not the women or children, due to the words of the Prophet  to Mu’adh “Take one dinar from every (halim) adult man” (reported and authenticated by al-Hakim). And al-Bayhaqi reported in his Sunan al-Kubra from ‘Amru b. Shu’ayb from his father from his grandfather that the Messenger of Allah  “obliged Jizya upon every (muhtalim) male adult from the people of Yemen, of one dinar” and the use of the words halim and muhtalim with the masculine form indicates that it is not taken from women nor those who have not reached puberty, and similarly Umar (ra) wrote to the leaders of the army “Impose the Jizya, and do not impose it upon the women and children, and do not impose it except upon the one who uses the blade”, and it is not known that anyone rebuked him over that and so it is considered to be an Ijma’. In the same manner it is not taken from the insane as he is analogous with the child.

Article 145

Land tax is payable upon the kharajiyyah land according to its capacity. Zakat is collected from the ‘ushriyyah land according to the actual production.

The evidence is what has been reported from al-Zuhri who said “The Messenger of Allah ruled that the people who became Muslim from Bahrain have their blood and wealth protected, apart from their land, since it was a booty for the Muslims, since they did not embrace Islam at first and rather resisted” (reported by Yahya b. Adam in Kitab al-Kharaj), in other words they had resisted the Muslims. This is evidence that the lands of the countries that are conquered are considered part of the booty. Except that our master Umar (ra) came and kept the ownership of the land with the Bayt al-Mal and left its benefits for those who lived upon it, and took land taxes from them in exchange for that utilisation, and these taxes were according to the potential of the land and not a fixed amount. Accordingly, areas of arable land (called jarib) in parts of Iraq were taxed a qafiz or a dirham, and in other places the tax was upon different sizes of areas of arable land other than jarib, and in areas of al-Sham different sizes were used, and so it is known from this that he managed each land according to its capacity.

This was with respect to the kharajiyyah land, and as for the ‘ushriyyah lands, which are the lands whose inhabitants embraced Islam without conquest, along with the Arabian Peninsula, the Zakat is taken from what is actually produced from the land, and this would be a tenth if it was watered by rainwater, and a twentieth if it was watered by irrigation.

Article 146

Muslims pay the taxes that the Shari’ah has permitted to be levied upon them in order to cover the expenditure of the Bayt al-Mal, on the condition that it is levied on that which is surplus to the individual’s needs according to what is normal, and has to be sufficient to cover the needs of the State.

This article includes three issues: firstly, the payment of taxes; secondly, that these taxes are not taken unless it is surplus wealth to personal needs according to the norms; thirdly, they are only taken as required to fulfil the needs of the Bayt al-Mal and not beyond that.

As for the first issue, the word “tax” is a Western term, which means what the authority imposes upon the subjects in order to manage their affairs. The question is: Is it permitted for the Islamic State to impose taxes upon the Muslims in order to administer their affairs? The answer to this is that the Shari’ah defined the income of the Bayt al-Mal and fixed this income to administer the affairs of the subjects, and did not legislate taxes in order to administer their affairs. Additionally, the Prophet  used to administer the affairs of the subjects using these incomes, and it is not confirmed that he  imposed a tax upon the people, and that has not been reported from him  at all. When he  learnt that the people on the borders of the State were taking taxes upon the goods that were entering the land, he forbade them from doing so; it is reported from ‘Uqbah Bin Aamir that he heard the Messenger of Allah  say “The person who imposes custom duties will not enter Paradise” (reported by Ahmad and authenticated by al-Zayn and al-Hakim), and Abu Khayr heard from Ruwayfi’ b. Thabit who said “I heard the Messenger of Allah  say “The person who imposes custom duties is in Hellfire”” reported by Abu ‘Ubayd in al-Amwal, and it was reported by Ahmad and authenticated by al-Zayn. And he said: “It means al-‘ashir”, and al-‘ashir is the one who takes a tenth from the foreign trade. This indicates the forbiddance of imposing taxes according to the Western meaning of the word. The Messenger  said in an agreed upon narration from Abu Bakra, “Your blood, wealth and honour are sanctified like the sanctification of this day of yours in this land of yours in this month of yours”, which is general and encompasses everybody including the State, and taking taxes is taking the wealth of the Muslim without his agreement, which indicates the impermissibility of taking it.

However, if the income of the Bayt al-Mal from the defined areas and fixed amounts were not sufficient to administer the affairs of the subjects, since it could occur that there are issues which require administering and the income of the Bayt al-Mal had already been spent, then would it be permissible in this situation to impose taxes or not? The answer to that is that what the Shari’ah obligated upon the Bayt al-Mal includes what was obligated upon it alone and not obligated upon the Muslims, and what was obligated upon both the Bayt al-Mal and upon the Muslims. It is not permitted for the State to impose taxes for the sake of whatever was obligated upon the Bayt al-Mal alone and not upon the Muslims, so if there is money found in the Bayt al-Mal it is used and if there is nothing then it is delayed until they find enough to carry it out, and no taxes at all are imposed upon the Muslims for its sake. This is because the Shari’ah did not obligate that issue upon the Muslims, and so it is not permitted to impose taxes for it since taking taxes in this situation would be considered to be oppression which is forbidden (haram). Likewise, it would also be considered as making obligatory something that Allah (swt) did not make obligatory, which is like forbidding something permitted, or permitting something forbidden, which is enmity against the Shari’ah and the one who does it is considered to be a disbeliever if he believed in it, and sinful if he did not, accordingly it is not permitted for the State to impose a tax upon the Muslims which the Shari’ah did not make obligatory from the Quran and the Sunnah. Examples of this would be for the sake of the salaries of those collecting the Zakat, and giving to people in order to bring them closer to Islam/those whose hearts are to be reconciled, and giving to slaves in order to purchase their freedom, and to those indebted in order to repay what they owe. And such as building a new road while there was another one present, or building a dam while there was rain water, or establishing a hospital while there was another one present which fulfilled the need, or anything else similar to these, where its absence does not lead to the existence of haram, but rather its presence leads to betterment and is complementary to what exists. It is not permitted for the State to impose taxes upon the Muslims for anything like this in order to carry it out, since the Shari’ah did not obligate that. The jurists said regarding similar issues that their right upon the Bayt al-Mal is considered according to “presence not absence”, so if there was wealth present then they would deserve to have it spent upon them, and if it was absent then the absence voided their right.

As for what the Shari’ah obligated upon both the Bayt al-Mal and the Muslims, then if there was no wealth to be found in the Bayt al-Mal, or its wealth was finished, then in this situation the State could impose taxes upon the Muslims in order to carry out the affairs which the Shari’ah obligated upon both them and the Bayt al-Mal.

This is because it is confirmed by text that Allah (swt) obligated that upon them, and made the Imam responsible over them, so he is the one who collects this wealth from them and spends it upon the interests, such as the necessary expenditure upon the poor, the needy and the wayfarers, and there was not enough in the Bayt al-Mal from the income of Zakat and everything else to spend upon them. This is since feeding the poor is obligatory upon the Muslims, as he  said “Any people who wake up while a man from them is hungry then they are free of the convenant of Allah (swt)” (reported by Ahmad from Ibn Umar and authenticated by al-Hakim). Also, if there is not enough in the Bayt al-Mal for the necessary expenditure upon the soldiers and war, and everything that is required for military preparedness, then a tax is imposed upon the Muslims in order for it to be carried out due to His (swt) words “and strive with you wealth and your lives in the cause of Allah” (TMQ 9:41) and “and those who strive hard and fight in the cause of Allah with their wealth and their lives” (TMQ 4:95), and it is reported from Anas who said: The Messenger of Allah  said “Strive against the idol worshippers with your wealth and your hands and your tongues” (reported by Ahmad and al-Nisa’i and al-Nisa’i and al-Hakim authenticated it and al-Dhahabi agreed). And in the same manner everything which if it were not undertaken would cause a harm to the Muslims, such as opening a route where there was no alternative, and opening a hospital whose opening was a necessity, and anything else similar whose expenditure would be deserved from the angle of interest and service without an alternative, and being a necessity from the necessities, and that the Ummah would be afflicted with a harm if it was not present, then taxes are imposed upon the Muslims in order to carry it out because the removal of harm is obligatory upon the Muslims; the Prophet  said “No causing harm and no harming” (reported by Ahmad from Ibn ‘Abbas, and al-Hakim from Abu Sa’id al-Khudri, and he authenticated it and al-Dhahabi agreed). Likewise paying salaries for the army, judges and teachers, since these are from the issues that the Shari’ah obligated upon the Muslims, since learning has been made obligatory upon them, and so has establishing the courts and Jihad, as has been indicated by explicit texts. Therefore the State is permitted to impose taxes in order to carry out these issues which the Shari’ah obligated upon the Muslims alongside the Bayt al-Mal, since the texts are explicit in their obligation upon the Muslims. This is the evidence for the first issue of the article.

As for the second issue, its evidence is the words of the Messenger  “The best Sadaqah is from what exceeds your needs (ghina)” (agreed upon from Hakim Bin Hizam and Abu Hurayrah), and al-ghina is what the person did without, after taking what was necessary to fulfil his needs. It is reported from Jabir that the Messenger of Allah  said “The best of Sadaqah is that after giving which the (giver) remains rich and the upper hand is better than the lower hand, and begin from the members of your household” (agreed upon). And in another narration in Muslim from Jabir “Start by giving Sadaqah to yourself, and if anything remains then for your family”. So he  made providing for the person whom it is obligatory to support secondary to providing for oneself, and the tax is similar to that because it is like support and Sadaqah. And Allah (swt) said “And they ask you what they should spend, say that which is beyond your needs” (TMQ 2:219), in other words that which would not be difficult to spend, which would mean that which is extra. This indicates that what is obligatory upon the Muslim as far as their wealth is concerned, irrespective of whether that was Zakat or maintenance, is only taken from whatever he has that is extra over what he needs according to the norms. Similar to that is the tax, so it is not taken from the Muslim except from that which is extra and above what someone like him would require to fulfil their needs, or in other words what is extra to what he needs to feed, cloth, shelter and provide help for himself and his wives, and what he spends to fulfil his needs and whatever is similar for someone in his position, because this is the meaning of the Messenger’s  words “what exceeds your needs”.

As for the third issue, its evidence is the forbiddance of the Shari’ah from taking what is not obligatory, and whatever is additional to the needs is not obligatory upon the Muslim, and so it is forbidden to take it, and for this reason the amount taken is what is required for the Bayt al-Mal and nothing more. ‘Ali (ra) suggested to Umar Bin al-Khattab (ra) that there should be nothing remaining in the Bayt al-Mal saying to him “Every year, divide whatever wealth you received and do not hold onto anything from it” (reported by Ibn Sa’d from al-Waqidi), and it is reported “that Ali used to spend everything in the Bayt al-Mal to the point that he would sweep it and then sit it in” (reported by Ibn ‘Abd alBarr in al-Istidhkar from Anas b. Sirin). The Khulafaa’ used to do this with respect to the income other than taxes, so how would they have treated the income from taxes? By greater reasoning there should remain nothing in the Bayt al-Mal, and so nothing more than what is necessary is taken.

This is the evidence for the three issues of this article.

Article 147

The State has the right to impose taxes in order to undertake anything that the Shari’ah obligated upon the Ummah if the funds in the Bayt al-Mal were insufficient since the obligation for funding it would be transferred onto the Ummah. The State has no right to impose a tax for the sake of whatever is not obligatory upon the Ummah to undertake, and so it is not permitted to collect fees for the courts or departments or to fulfil any service.

The evidence for this is the same evidence that was mentioned for the first issue of the last article, in that the Shari’ah defined the general income, and that the Messenger  did not impose taxes and forbade the taking of custom duties, because it is a tax, and so it is a prohibition that encompasses every tax. It also mentioned that if there was no wealth in the Bayt al-Mal to spend upon whatever the Shari’ah obligated upon the Bayt al-Mal and the Ummah, the obligation transfers onto the Ummah, and whatever the Shari’ah obligated upon the Bayt al-Mal alone then its obligation does not transfer on to the Ummah even if there was nothing left in the Bayt al-Mal for it, rather it is delayed until the money for it is found and no taxes are imposed upon the Ummah. In the same way, no taxes are directly imposed upon the Ummah for the sake of anything that was not obligatory upon it, and similarly indirect taxes are also not imposed; so no fees are collected for the courts, or the departments, or import stamps, or permit fees, or anything similar. As for postal stamps, they are not considered to be indirect taxes, but rather they are the price for transporting letters, which is permitted. Therefore no indirect tax for the sake of anything which the Shari’ah did not obligate upon the Muslims should be collected, since they are just like the direct taxes without any difference between them, and it is not permitted to impose them upon the Ummah.

Article 148

The budget of the State has permanent chapters determined by Shari’ah rules. As for the sections of the budget, the amounts allocated for each section, and the issues of each sectioncovered by these amounts are left to the opinion of the Khalifah and his Ijtihad.

The word budget is a Western term, and its meaning is the explanation of the income that the State takes, and an explanation of its chapters, which are the aspects that are gathered in the budget, and an explanation of its sections, which are the branches of these aspects, and an explanation of the amounts which are incoming. Alongside that, there is a draft of the explanation of the expenditure that the State will spend, by explaining its chapters which are the aspects upon which the expenditure will be used, and an explanation of its sections, in other words the branches of these aspects, and an explanation of the amounts that will be spent upon every one of the issues mentioned in each section. This is the reality of the budget. This reality was not known to the Muslims; rather they knew the Bayt al-Mal, and the income was sent there and the expenditure was spent from it. However, the presence of income for the Bayt al-Mal and the fact that the expenditure comes from it, embodies the reality of the budget even if it was not named with that term, and there is nothing to prevent the use of this term according to its terminological meaning, which is the collection of the chapters of income and expenditure, with sections for each of these. Built upon this, the State has a budget, and the Bayt al-Mal is responsible for this budget.

As for the preparation of this budget in terms of its chapters, sections and amounts which are drafted, these have been decided by the Shari’ah laws. So the Shari’ah laws introduced and decided income such as land taxes and booty, and expenditures were introduced and decided how it should be spent, and it was confirmed what must be spent upon and what needs to be spent upon if the money is found to do so. The income and expenditure were introduced and decided by the Shari’ah rules, and therefore the chapters of the budget are permanently based upon that, since the Shari’ah decided them and the Shari’ah rule is permanent and does not change.

As for the sections, which are the branches which branch off from them such as the land tax upon the land with a natural water supply, and the land tax upon irrigated land, or anything similar, the Khalifah can draft them, since they are part of the management of the affairs which have been left to his opinion and Ijtihad. In the same manner, the amounts which are drafted are done so according to his opinion and Ijtihad, such as how much the Jizya and land tax would be, and anything similar, since it is part of what he is responsible for. Accordingly, the evidences for the Shari’ah rules are regarding the income and expenditure of the Bayt al-Mal, and the control over whatever is in the Bayt al-Mal that the Shari’ah did not specify is left to the opinion and Ijtihad of the Khalifah.

These three evidences: the evidences regarding the income, those regarding the expenditures, and the evidence that the Imam is responsible for governing the affairs, are the evidences for this article. As long as the Khalifah has the right to draft the sections of the incomes and amounts which are drafted in each section according to his opinion and Ijtihad, then there is nothing to prevent the drafting of an annual budget for the State including its sections and the amounts for each section, whether that is for the income or expenditure. What would be prohibited is drafting an annual budget for the sake of new chapters, and not its income and expenditure, since these chapters have been decided by the Shari’ah rules and so they are permanent.

Article 149

The permanent sources of income for the Bayt al-Mal are the booty, Jizya, land tax, a fifth of buried treasure, and Zakat. This income is collected continuously irrespective of whether there was a need or not.

The evidences for this article are the evidences which include the income, so the evidence for booty is the words of Allah (swt) “And what Allah gave as booty to His Messenger from the people of the townships – it is for Allah, His Messenger, the orphans, the needy, and the wayfarers” (TMQ 59:7). The evidence for Jizya is His (swt) words “until they pay the Jizya if they are capable and feel themselves subdued” (TMQ 9:29). The evidence for land tax is what was reported from Abu ‘Ubayd regarding the kharajiyyah land when he said “We found reports from the Messenger of Allah  and the Khulafaa’ after him who had conquered the lands, regarding three rules: The land of those who had embraced Islam, so it belongs to them, and this is the land of ‘ushr (a tenth) and there is nothing (imposed) upon them other than that. And land which was opened through a peace treaty based upon an agreed land tax, so they are upon what they agreed upon and nothing more is imposed upon them. And the land which was taken by force, which is the subject that the Muslims differed over, so some of them said it should be treated like booty, so a fifth is taken off it (by the State) and it is divided, and so four fifths is divided between those who had conquered the land, and the remaining fifth is for Allah (swt). And some said, no, rather its rule is left to the Imam, if he thinks it should be left as booty and so a fifth is taken and the rest is divided in the same manner that the Messenger of Allah  did then he can do that, and if he thinks that it should be kept as a spoil of war and so it is left undivided but rather it is left for the generality of the Muslims, as Umar did with al-Sewaad. These are the rules regarding land which has been conquered”. The story of  Muslims’ discussion with Umar (ra) regarding the land of Sewaad (land of Iraq) is also reported by Abu Yusuf in al-Kharaj.

As for the fifth of treasures its evidence is the words of the Messenger  “There is a fifth due on buried treasures”. And as for Zakat, its evidences are many, Allah (swt) said “And give Zakat” (TMQ 2:43), and the Prophet  said to Mu’adh “Inform/tell them what Allah obligated upon them from Sadaqah which is taken from their rich and given to their poor”.

All of these evidences convey the meaning of obligation, and so paying this wealth is an obligation, which is why it is taken perpetually regardless of the need, since Allah (swt) made it obligatory, and the obligation must be carried out.

Article 150

If the permanent revenues of the Bayt al-Mal are not sufficient to cover the expenditure of the State, then it is possible to impose taxes upon the Muslims. It becomes obligatory to impose taxes as  follows:

a.      To fulfil the obligatory expenses upon the Bayt al-Mal for the poor, needy, and wayfarers, and to undertake the obligation of Jihad.

b.      To fulfil the obligatory expenses upon the Bayt al-Mal for remunerations of the civil servants and soldiers, as well as compensation for the rulers.

c.       To fulfil the obligatory expenses upon the Bayt al-Mal to undertake the services and needs  such as establishing roads, extracting water, building mosques, schools and hospitals.

d.      To fulfil the obligatory expenses upon the Bayt al-Mal which are necessary in case of a disaster which afflicted the subjects such as famine, floods and earthquakes.

The evidence for this is that the Shari’ah prohibited the authority to impose taxes upon the Muslims simply based upon an order emanating from him; the Prophet  said “The person who imposes custom duties will not enter Paradise” (reported by Ahmad and authenticated by al-Zayn), and the custom duty is tax which is taken from the tradesmen at the borders of the country. This prohibition encompasses every tax due to the agreed upon narration of the Messenger  through Abu Bakra, “Your blood, wealth and honour are sanctified like the sanctification of this day of yours in this land of yours in this month of yours”, which is general and so encompasses the Khalifah in the same way it encompasses the rest of the people. As long as the Shari’ah prohibited taking taxes, it is not permitted for the Khalifah to impose them upon the people based upon an order he made. However, if the purpose was something that Allah (swt) had made obligatory upon the Muslims, then it is permitted for the Khalifah to impose taxes upon the Muslims and take it from them by force for such purpose.

In this circumstance taking them would not be based upon an order from the authority but rather based upon what Allah (swt) had ordered, and the authority is merely implementing the order that Allah (swt) had made. So the Shari’ah permitted the Khalifah to take taxes if it was ordered by Allah (swt), with the condition that the order to take the taxes is from the Khalifah together with what Allah (swt) ordered the Muslims to fulfil, and not simply an order from the Khalifah alone to impose this tax. Based upon this, what the Shari’ah obligated upon the Muslims and the Bayt al-Mal is spent upon from the Bayt al-Mal, and if nothing is found in the Bayt al-Mal, or if whatever was there had already been spent, or was not sufficient to fulfil the expenditure needs, then the Khalifah may impose taxes upon the Muslims according to the Shari’ah rules which obligated that issue upon the Muslims in the first place. And what were mentioned in the article are details of what Allah (swt) has obligated upon the Muslims.

As for clause “a” its evidence is that Allah (swt) obligated the Khalifah to spend upon the poor, needy and wayfarer, and to spend in order to undertake the obligation of Jihad, and this was also made an obligation upon the Muslims; the Prophet  said “The one who goes to bed full while his neighbour is hungry and he knows does not believe in me” (reported by al-Bazzar from Anas and al-Haythami and al-Mundhiri considered it Hasan). And there are evidences related which mention the poor, needy, wayfarers and beggars and the verse of Zakat. And the evidences of Jihad include His (swt) words “and strive with your wealth and your lives in the cause of Allah” (TMQ 9:41).

As for clause “b”, its evidence is that Allah (swt) obligated the Khalifah to pay for the expenses related to the civil servants, and the salaries for the soldiers according to what was agreed with them, and it is obligatory for the Bayt al-Mal to recompense the Khalifah and the rest of the rulers, due to the evidence that the companions specified some money for Abu Bakr (ra) from the Bayt al-Mal in return for him leaving his trade and being completely free to carry the duties of the Khilafah. In the same manner Allah (swt) made education, establishing the courts and Jihad with wealth obligatory upon the Muslims, and obligated them to establish the Khalifah in the same way it is obligatory upon them to establish the leader.  As for the provisions for the soldiers, he  said in a report from Abu Dawud from Abdullah Bin Umar “Al-Ghazi has his ajr and al-Ja’il has his ajr plus the Ghazis”. And as for the maintenance of the civil servants, which are the teachers, judges, and those whom Allah (swt) has made it constantly obligatory to ensure they are established, then it is obligatory to pay the wages of those who undertake these issues, from the angle of the indication of necessity, in other words the obligation to establish a judge necessitates the obligation of paying his wage, and from the angle of “Whatever is required to complete an obligation is itself an obligation”, since the appointment of teachers and judges cannot be possible without the availability of money to cover their salaries. As for the remaining civil servants, if their work is part of what Allah (swt) obligated upon the Muslims and upon the Bayt al-Mal such as the Imams of mosques, and the civil servants in the War Department and anything else similar, then taxes are imposed for their sake. With respect to whatever Allah (swt) obligated upon the Bayt al-Mal alone such as the ones who collect the wealth from the people, then taxes are not imposed for their sake. And as for the recompense for the rulers, Allah (swt) obligated the Muslims to establish the ruler, and so it is obligatory for them to pay what is required to ensure he is free for his duties.

As for clause “c”, its evidence is that Allah (swt) obligated the Khalifah to undertake the management of the interests of the Muslims by spending upon whatever interest they have and facilitating anything they need. The interest is what the whole Ummah uses, such as extracting the water, education, fixing the roads, and anything similar, and the utility is from the facilitation, which is what people utilise in order to fulfil their interests, such as a place of rest for travellers/passengers, public toilets, hospitals for the treatment of the ill and building mosques for the worshippers. It is said to utilise something is to use it, and so the Muslim utilises the space of the mosque for sitting and its water for ablution. So the Shari’ah obligated the Khalifah with issues such as building roads, extracting water, building schools, mosques and hospitals and anything else similar, since they are part of the management of the affairs, and because the interest is to attain a benefit and protect against a harm, and not making these available leads to harm. And utilisation is whatever the people utilise to fulfil their needs, and its lack of availability would necessarily bring about harm, and removing the harm is an obligation upon the Khalifah and in the same manner is obligatory upon the Muslims; it is reported from Ibn ‘Abbas who said: The Messenger of Allah  said “No causing harm and no harming” (reported by Ahmad from Ibn Abbas and reported and authenticated by al-Hakim from Abu Sa‘id al-Khudri), and he  said “Whoever causes harm, Allah inflicts harm upon him, and whoever makes things difficult Allah makes it difficult upon him” (reported by Ahmad from Abu Sarmah with a chain that al-Zayn authenticated, and similarly reported and authenticated by al-Hakim from abu Sa‘id al-Khudri). Therefore what would occur from harm upon the Muslims if there was no provision for what the interest and utility necessitated if there was no recompense must be considered, and it would be obligatory upon the Khalifah and the Muslims to ensure it is provided if this provision removed that harm. What made it obligatory upon the Khalifah is clear since it is part of managing the affairs, and what made it obligatory upon the Muslims is the generality of the evidences, since the words “No causing harm and no harming” are general, and in the same way “whoever makes things difficult” is general therefore encompasses the Khalifah and also encompasses all of the Muslims.

As for clause “d”, its evidence is the evidence of saving the one who is in trouble, since issues like floods and earthquakes and the like, fall under this issue. As for those who may be starving they fall under the narration “The one who goes to bed full while his neighbour is hungry and he knows” (reported by al-Bazzar from Anas and considered Hasan by al-Mundhiri), and the narration “Whoever from the people of the land” (reported by Ahmad from Ibn Umar and authenticated by Ahmad Shakir). Therefore it is obligatory upon the Bayt al-Mal and the Muslims due to the generality of the evidences.

Article 151

Money taken at the borders of the State from custom duties, income derived from public or State property, inheritance for which there is no inheritor and the assets of the apostates are all considered to be part of the revenue of the Bayt al-Mal.

The evidence for the article is what has been reported from Umar (ra) regarding the Muslims taking from the traders of those they were at war with according to what they took from the Muslim traders; it is reported by Ibn Abu Shayba in al-Musannaf “from Abu Mijliz – that Umar sent Uthman Bin Hanif who imposed upon the wealth of people of dhimma that they differed over, a tax of one dirham from every twenty and wrote to Umar who was content and gave him permission, and he said Umar: How much should we take from the people of war if they come to us? He said: How much do they take from you if you go to them? They said: A tenth. He said: So take the same from them”.

Abu ‘Ubayd reported in al-Amwal from ‘Abd alRahman Bin Ma’qal who said: I asked Ziyaad Bin Hudair about whom they would take a tenth from. He said “We didn’t use to take a tenth from a Muslim, nor from someone who had a covenant. I said: So who did you take the tenth from? He said: The disbelievers from the people of war, so we used to take from them as they used to take from us”. This is an evidence that custom duties which are taken from non-subjects of the State are considered to be from the sources of income of the Bayt al-Mal.

This is with respect to the taxes, as for the wealth which is produced by public property, the Khalifah has been made the representative of the Muslims in managing their interests, and so whatever is from the public wealth which all of the individual citizens are able to enjoy, then they are left to them to use as they please, such as rivers and well water which could be used for irrigation. But if the usage of some prevents others, such as steel minerals, which leads to the one who is capable taking it while the one incapable gets nothing of it, then the Khalifah takes responsibility for managing this resource and extracting whatever is there in order to enable all the citizens to benefit from its sale. Accordingly, this wealth is placed in the Bayt al-Mal and is considered to be from its sources of income because the Khalifah is the one who manages it. However, it is not spent according to the opinion and Ijtihad of the Khalifah in everything, since it is for the general citizens, and his opinion and Ijtihad is regarding the equality and inequality in expenditure, and not upon who it is paid for, since it is not from the State property.

And as for the wealth which has no inheritor for it, it is placed in the Bayt al-Mal. If an inheritor is found then it is given to them, and if not then it is considered as the property of the Bayt al-Mal because the Bayt al-Mal is the inheritor of anyone who has no inheritor, since the Muslims used to give the inheritance of the one who had no inheritor to the Messenger , and he  used to ask whether the person had any progeny or relatives? And (if he didn’t have any) then he  would order it to be given to whomever he considered, which indicates that it is a source of income for the Bayt al-Mal.

As for the wealth of the apostates, this is considered to be booty for the Muslims and is placed in the Bayt al-Mal in the register of war spoils and kharaj, and is spent upon what they are used for. His wealth is not inherited, since if one of the couple apostatised before consummating the marriage the contract is voided immediately and so there is no inheritance between them, and if the apostasy occurred after consummation then the marriage contract between them is voided, and if either of them die neither of them inherits from the other, since one of them is Muslim and the other a disbeliever. Similarly if the apostate was from those who inherit from a Muslim who died, the apostate does not inherit since he is a disbeliever and the one who left the inheritance is a Muslim, and a disbeliever does not inherit from a Muslim. Accordingly, his share of the remainder of the inheritance, if there were other inheritors, and if not then all of it is considered as booty for the Muslims, and it is placed in the Bayt al-Mal. If the apostate died and he had inheritors from his sons, father, mother or siblings who were Muslim, they do not inherit from him, since a Muslim does not inherit from a disbeliever and it is all considered to be booty for the Muslims and is placed in the Bayt al-Mal for the Muslims. From Usamah b. Zayd who said: the Messenger of Allah said “A Muslim does not inherit from a disbeliever, and a disbeliever does not inherit from a Muslim” (agreed upon). And ‘Abd Allah b. Umar said that the Messenger of Allah  said “People from two religions do not inherit from each other” (reported by Ahmad and Abu Dawud). Similarly if all of his inheritors apostasise with him, all of their wealth has no sanctity and it becomes booty for the Muslims, and they do not inherit from each other.

Article 152

The expenditure of the Bayt al-Mal is divided across six sections:

a.      The eight categories which deserve the Zakat to be spent upon them, from the chapter of Zakat.

b.      The poor, the needy, the wayfarer, Jihad, and those in debt – if there is nothing found in the chapter of Zakat, they are given money from the permanent sources of income of the Bayt al-Mal, and if nothing is found then those in debt are not given anything. Taxes are imposed in order to fulfil the expenses required for the poor, the needy, the wayfarer, and Jihad, and the State takes a loan in case of fear of fasad (corruption).

c.       The individuals who provide services to the State such as the civil servants, the soldiers and the rulers are paid from the Bayt al-Mal. If there were insufficient funds in the Bayt al-Mal then taxes are imposed in order to fulfil the expenditure needs, and the State takes a loan in case of fear of fasad (corruption).

d.      The essential services and utilities such as roads, mosques, hospitals and schools are funded by the Bayt al-Mal, and if there are insufficient funds in the Bayt al-Mal taxes are imposed to fulfil these expenses.

e.       The non-essential services and utilities are funded by the Bayt al-Mal, and if funds  found in the Bayt al-Mal are insufficient then they are not funded, but rather delayed.

f.        Emergency situations such as earthquakes and floods are funded by the Bayt al-Mal, and if the funds were not found the money required is taken as a loan immediately which is then repaid through raised taxes.

The evidence for clause “a” of this article is the verse of Sadaqah, which is the words of Allah (swt), “Sadaqah (Zakat) is only for the poor, the needy, and those employed to collect, to attract the hearts of those inclined (to Islam), to free the captives, and for those in debt, and for Allah’s cause, and for the wayfarer.” (TMQ 9:60).

As for clause “b”, it is obligatory upon the Bayt al-Mal to spend upon the poor, the needy, the traveller and Jihad whether the money was in the Bayt al-Mal or not, since it is part of what Allah (swt) obligated upon the Bayt al-Mal and the Muslims. Therefore, if the money is not found in the Bayt al-Mal then taxes are imposed upon the Muslims for its sake, because it is obligatory upon them as confirmed by the Shari’ah evidences. As for those in debt, they are part of what Allah (swt) obligated upon the Bayt al-Mal and not upon the Muslims. The reason why it is obligatory upon the Bayt al-Mal is due to the words of the Messenger  “I am more responsible over every believer than themselves, so whoever left behind a debt then it is upon me, and whoever left wealth then it is for his inheritors” (reported by Muslim from Jabir), and it was upon him  in his  characteristic as the Head of the State, and so it is part of what Allah (swt) obligated upon the Bayt al-Mal. It is reported from Abu Hurayrah that the Prophet  said, “Any believer who died and left behind wealth then whoever is from his family inherits it, and whoever leaves behind a debt or children then come to me, since I am his protector” (reported by al-Bukhari). Accordingly the debt is upon the Bayt al-Mal. If there was wealth in the Bayt al-Mal it is obligatory to spend it, and if no funds were found, then no taxes would be imposed, since there is nothing to indicate that it is an obligation upon the Muslims. In the explanation of Sahih Muslim by al-Nawawi it is said that “The Prophet did not use to pray over anyone who died with a debt that he did not manage to fulfil, in order that people would not be careless in taking debts and neglect repayment, and so he would rebuke them by not praying over them. When Allah opened the conquests for the Muslims he  said ‘whoever left behind a debt, it is upon me’ in other words to fulfil it, and he used to fulfil them” which is evidence that it is paid from the Bayt al-Mal if the money is found.

As for clause “c”, the evidence is what has been mentioned that Allah (swt) obligated education, judging and Jihad upon the Muslims, and He (swt) obligated establishing the Khalifah upon them, and made it obligatory upon the Khalifah to govern the affairs with whatever that necessitates in terms of rulers and civil servants, and for those to be able to fulfil their obligations it is necessary for the Bayt al-Mal to give the civil servants their salaries, and the rulers their compensations, from the rule “Whatever is required to complete an obligation is itself an obligation”. If whatever is in the Bayt al-Mal is not sufficient, then taxes are collected in order to meet these expenses, and if it is feared that instability/corruption (fasad) could occur then loans can be taken to fulfil the need.

As for clause “d”, in order to reach its evidence it is necessary to understand in detail that the evidence to fund the obligatory expenditures on the benefits and utilities where no alternative exists is that it is part of the management of the affairs, and the narration says “and he is responsible for his subjects” (reported by al-Bukhari from Ibn Umar), and the fact that the Ummah would be afflicted by harm in the absence of it being carried out and the Messenger  said “No causing harm and no harming” (reported by Ahmad from Ibn ‘Abbas, and reported and authenticated by al-Hakim from Abu Sa’id al-Khudri).  Accordingly, these are the evidence for the obligation upon the Khalifah for the interest and utilities, which is why it is obligatory upon him in an absolute sense whether they were from the essentials or non-essentials. The evidence for their obligation upon the Muslims are the words “No causing harm and no harming”, which is why the non-essential interests are not obligatory upon them since the Ummah would not be afflicted with harm if they were not undertaken, and nothing is obligatory upon the Ummah except that which would cause a harm if it was not undertaken.

Accordingly, not every interest and utility is obligatory upon the Muslims, rather only those interests which would cause harm if they were not undertaken. As for the Bayt al-Mal, it is obligatory for it to undertake every issue which brings benefit for the Muslims, and everything which, if left without being undertaken, would cause them harm. Due to the restriction of the evidence of its obligation upon the Ummah with the narration “No causing harm and no harming”, taxes are not imposed upon the Muslims in order to undertake the non-essential interests and utilities such as widening the roads which are sufficient for the people without the widening or building a hospital that could be managed without, and anything else similar from non-essential interests. If the money is found in the Bayt al-Mal the State would undertake them, and if not they would be delayed until the money is found, and it is not correct for taxes to be imposed for the sake of undertaking them.

As for clause “f”, its evidence is the evidence for saving the one in trouble: in an agreed upon narration from Abu Musa al-Ash’ari, that the Prophet  said, “Every Muslim must pay Sadaqah” So they asked: O Prophet of Allah, and what about the one who doesn’t find any? He said: He should work with his hands, such that he benefits himself and pay Sadaqah. They said: And if he didn’t find any? He said: he should help the one in trouble. They then said: And if he didn’t find that? He said: then he must do good and refrain from doing wrong, that is Sadaqah for him.”

And in the same way, the agreed upon narration from Ibn Umar that the Messenger of Allah  said “The Muslim is the brother of the Muslim, he does not oppress him nor give him up, and whoever helps his brother in need, Allah will fulfil his need, and whoever lifts a difficulty from a Muslim, Allah will lift a difficulty from the difficulties of the Day of Judgement from him, and whoever covers a Muslim, Allah will cover him on the day of Judgement”.

This is general encompassing both the Khalifah as well as the rest of the Muslims, and so it is obligatory upon the Bayt al-Mal and upon the Muslims. If sufficient funds are found in the Bayt al-Mal then they are spent upon from there, and if there were not sufficient funds found then taxes are collected for its sake because it is obligatory upon the Muslims to help those in trouble.

With respect to the taking out of loans in a situation where corruption (fasad) is feared, as mentioned in clauses “b” and “c” and “f”, this is because corruption is a harm afflicting the Muslims, and its removal would be obligatory due to the narration “No causing harm and no harming”. So, if the funds were not available, and loans were not taken out, and waiting for the money could cause harm, then it would be obligatory to take out a loan to remove the harm. It would then be necessary for the State to take a loan for the amount required to remove the harm. It is not permitted to take out a loan for the sake of anything other than these three situations, because spending in other situations depends on the presence of funds, but if the funds are not present money should not be borrowed for it. As for anything which is entitled to funds whether or not they were found in the Bayt al-Mal, then if the funds are found they are spent upon it, and if they are not found then they are sought through taking taxes from the Muslims in order to fulfil what is required. This occurs if it is possible to wait and no harm occurs due to waiting, and so it is delayed until the taxes have been collected, and if it cannot be waited for and the people would be afflicted with harm due to any delay then at that time a loan would be taken out for its sake. So accordingly the State would not take out a loan except for the situations which would cause harm if nothing was spent, which are those situations and things whose entitlement to funds remains whether the funds were found or not.