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Deconstructing Islamic Law – Focus on Fiqh texts (2)
Last time we looked at Fiqh texts we mentioned:
If we look at them substantially, they consist of:
- textually gleaned understandings (i.e. from Quran and Hadith)
- issues of consensus
- opinions of the companions an/or their students
- opinions of the “Imam” of that particular school
- and at times opinions of the leaders of that Imam’s school after him
This time I’d like to discuss each of these in brief:
1. Textually gleaned understandings
This first category is made up of understandings taken from the texts of the Quran and Sunnah. Both of these contain texts which can generally be divided up into three categories:
A. Texts which are explicit and unequivocal in nature, i.e. they will not and cannot hold more than one meaning without deviating from their true linguistic meanings and invoking some type of heterodox interpretation. This category is know as a “Nass” (نصّ).
And example of this would be the verse (وَآتُواْ حَقَّهُ يَوْمَ حَصَادِهِ ) “And give its right the day of Harvest…” 6:141. The meaning taken from this verse is that zakat is due on crops the day they are harvested. No one can rightfully construe this verse to mean something other than that apparent without invoking an interpretation that would not only be foreign to the corpus of Islamic legal understanding but to the Arabic Language as well.
An example of deviant misinterpretation of the Quran would be construing this verse (إِنَّ اللّهَ يَأْمُرُكُمْ أَنْ تَذْبَحُواْ بَقَرَةً ) “…God orders you to slaughter a cow…” 2:67, which was directed to the Children of Israel at the time of Moses to mean that God has ordered the slaughter of Aisha, the wife of the Prophet Muhammad. Such an interpretation is neither logical nor in accordance with sane readings of the texts legally or linguistically.
B. Texts which contain more than one meaning, yet one of these is presumed stronger than the other. This is called a “Zahir” text (ظاهر).
An example of this would be the hadith narrated by Muslim:
“For every forty sheep, a sheep.” (في أربعين شاة شاة)
The apparent meaning of this hadith is that a Shepard who owns forty sheep must pay one sheep as Zakat. Other scholars said that the meaning of this hadith is that he must pay the price of one sheep as zakat, not that he is obligated to pay the actual sheep. Regardless of Juristic polemics surrounding the issue at hand, when analyzed singularly the strength of first meaning is more presumptuous than that of the second.
C. Texts which contain multiple meanings, it being impossible to designate one of these meanings without an external texts or meaning to help determine it. This type is called “Mujmal” (مجمل). The process by which it is clarified is called “Bayan” (بيان). It is then known as a “Mubayyan” (مبين) text.
For example the 3rd verse of Surah al- Mujadilah
(وَالَّذِينَ يُظَاهِرُونَ مِن نِّسَائِهِمْ ثُمَّ يَعُودُونَ لِمَا قَالُوا فَتَحْرِيرُ رَقَبَةٍ مِّن قَبْلِ أَن يَتَمَاسَّا)
“Those that commit Zihar from their wives then return to that which they said must free a slave before they reunite…”
The description of the slave here is an unknown, is it a believing slave as mentioned in other verse (4:92) or not? Does a slave who is impaired count? and so on and so forth. Some would say that in this instance we must look at similar instances in the texts, and judge the ambiguity of this text by the explicitly of the others. Other disagreed.
The point in all of this is that the multiplicity of opinion based on B & C is found in works of Fiqh, and fiqh texts become the junction of linguistic, inductive, and logical arguments; these all leading to the categories following this first one.
Review – Fiqh Az Zakat: A Comparative Study: The Rules, Regulations and Philosophy of Zakat in the Light of the Quran and Sunna
Fiqh Az Zakat: A Comparative Study: The Rules, Regulations and Philosophy of Zakat in the Light of the Quran and Sunna by Yusuf Al-Qaradawi
My rating: 3 of 5 stars
I’ve read the Arabic edition of this book, so i cannot comment on the quality of translation here. This is regarded as the author’s seminal work on Islamic law, as well as a first reference for both classical and modern issues related to zakat law.
His coverage of issues is encyclopedic, but while the author attempts to tackle many issues on this topic there are some apparent drawbacks:
1- His methodology in discussing nuances and details of some issues is selective at times, not to say that the quotes he provides or the references given do not represent authorities on those particular issues, but the lack of sufficient referencing leaves one wanting, especially if the issue at hand is one particular to a certain scholar of the past or school of Islamic law.
2- At times appeals to authority are used for legitimizing legal stances, and not enough analysis is done to challenge problematic issues found in medieval works of Islamic law.
3- The mainstay of the author is three medieval works: Al-Mughni of Ibn Qudamah, al-Majmu of al-nawawi, and al-Amwal of Abu Ubaid. al-Mabsut of al-Sarakhsi is covered as well. These works span 3 schools (Hanbali, Shafi, and Hanafi respectively) as well as the independent reasoning of Abu Ubaid, a 4th century jurist. I cannot at this time recall a Maliki source that was called on as frequently as these previous ones.
All in all it is a good work for the time in which is was written, however research in this area must continue to help move Islamic legal works away from the defective induction that many pre-modern and modern works rely upon.
Legal tools for Zakat & charitable giving
From Muslim Advocates:
Giving zakat?Managing fitra funds?Donating money abroad?Legal tools to help you do good.During the holy month of Ramadan, Muslims turn their attention to spiritual renewal and zakat, or charitable giving. When giving zakat, it is very important to comply with U.S. laws and regulations. To assist donors, mosques and non-profits, Muslim Advocates has created the following resources, which contain critical information about legal requirements and best practices when engaging in charitable giving:• Giving zakat?Watch this Video on the Law and Best Practices for Zakat.Read this Guidance on Charitable Giving.
• Donating money, goods or services abroad?• Managing fitra funds for a mosque?Sign up to learn more about a Muslim Advocates conference call with legal and tax experts during Ramadan to help guide your decisions.
Please forward this email to your family, friends, and community leaders.
Help them get access to the tools and information they need to do good and comply with the law.
For more information, visit www.muslimadvocates.org. If you have specific questions, please do not hesitate to contact Akil Vohra, Counsel, Muslim Charity Works Program, at 415-692-1486 or at akil@muslimadvocates.org.
Ramadan Mubarak!
Is zakat for non-Muslims?
Can Zakat be given to Non-Muslims?
There is general agreement that Zakat is not to be given to anyone who is fighting against Islam and Muslims; this is a point that does not need much elaboration. As for others who are non-combatant, and do not show enmity towards Islam and Muslims then medieval scholars differed as to whether such a person can be given Zakat.
Ibn al-Mundhir, in his influential work al-Ijma’, mentions the following:
وأجمعوا على أن الذمي لا يعطى من زكاة الأموال شيئا
They have consensus that the Dhimmi[1]
is not to be given anything from Zakat of wealth.
Given the relation of this point of consensus, many scholars followed Ibn al-Mundhir stating that non-Muslims should not be given Zakat. It is important to note here that the same set of scholars who followed this opinion reiterated the necessity of using other non-Zakat funds for the welfare of non-Muslims.
Looking at Ibn al-Mundhir’s statement, and despite the frankness of his assertion, a cursory review of the literature on Zakat shows that in fact there are variant opinions on this topic.
In summary, there are four opinions on giving Zakat to non-Muslims:
- Opinion #1: Zakat cannot to be given to non-Muslims in any way shape or form, not even under the account of “those whose hearts are softened”.
- This opinion is the official position of the Hanafi school.
- Basis: Several reports that Umar refused to give Zakat to several people after Islam had become strong.
- Opinion #2: Zakat should only be given to non-Muslims under the account of “those whose hearts are softened”.
- This is the official stance of the other 3 schools.
- Basis: Narrations exist where the Prophet gave non-Muslims Zakat to entice them to become Muslims.
- Opinion #3: That Zakat should only be given to non-Muslims in the absence of eligible Muslims.
- This was the opinion of Mujahid, the student of Ibn Abbas. [2]
- Basis: The hadith of Muadh states “..taken from their wealthy and given to their rich…”, poor non-Muslims being members of communities in which rich Muslim might live.
- Opinion #4: That Zakat may be given to any person fitting the description given in the verse of Zakat, regardless of whether this person be Muslim or non-Muslim.
- This was related from Umar, Jabir and Zufar (from the Hanafi school) and others.
- Basis:
- The generality of the verses on Zakat and charity, which do not in themselves specify one type of person over the other, and instead designate categories.
- Umar was asked about the verse “Charity is only for the destitute…” He said: “They are the disabled from the People of the Book”.[3]
- Jabir ibn Zaid, the famous jurist from the Tabi’in, was asked “Where should be distribute our Zakat?” He replied: “To the destitute amongst Muslims and Dhimmis.” He then stated “God’s Messenger would distribute to the Dhimmis from both Zakat and al-Khumus”.[4]
The fourth opinion fits not only the generality of the verse, but the broadest understanding possible of the hadith of Muadh, as well as fitting in with the explanation of Umar of the verse. It would seem that the unequivocal nature of Ibn al-Mundhir’s statement, as well as its precision, is highly debatable and due further research.
[1] – A dhimmi is a non-Muslim citizen of the Islamic state
[2] – Ibn abi Shaibah, Al-Musannaf, 3/177.
[3] – Ibn abi Shaibah, Al-Musannaf, 3/178.
[4] – Ibn abi Shaibah, Al-Musannaf, 3/178.
Combating Human Trafficking through Zakat
Zakat recipients are enumerated in the sixtieth verse of Surah al-Tawbah:
إِنَّمَا الصَّدَقَتُ لِلْفُقَرَآء وَالْمَسَكِينِ وَالْعَمِلِينَ عَلَيْهَا وَالْمُؤَلَّفَةِ قُلُوبُهُمْ وَفِى الرّقَابِ وَالْغَرِمِينَ وَفِى سَبِيلِ اللَّهِ وَابْنِ السَّبِيلِ فَرِيضَةً مّنَ اللَّهِ وَاللَّهُ عَلِيمٌ حَكِيمٌ
Charity is only paid for: the destitute, the poor, those collecting it, to soften the hearts; in manumission, those in debt, in God’s path, and the wayfarer; an obligation from God. God is Omniscient, All-Wise
Zakat, given the generality of this verse, is to be used in the freeing of slaves and generally the abolition of all forms of human subjugation. It is important to note here that peonage and human trafficking still exist today, and most societies are guilty of illegal bondage, even Muslim ones. For resources and examples of how Human Trafficking still exists today, see here, here, and here. Zakat can and should be used to fight this form of injustice.
Point of interest:
While unrelated to the topic of Zakat, the following is an interesting follow-up issue to that of peonage and slavery. Al-Bukhari narrates from Abu Hurairah that the Prophet said:
قال الله تعالى ثلاثة أنا خصمهم يوم القيامة رجل أعطى بي ثم غدر ورجل باع حرا فأكل ثمنه ورجل استأجر أجيرا فاستوفى منه ولم يعطه أجره
God himself has said: Three people, I am their plaintiff on the Day of Judgment; a man that was given in my name, yet was deceitful; a man that sold a free man and ate the price; and a man that hired someone,and whence he received full service, did not give him his pay.
Chattel slavery (the type that comes to mind for most western audiences) is forbidden in Islam, due to this hadith and many other texts. Any freeman that is robbed of that freedom is due reparations. Most legal works designate restitution for a person who, held against his will, was forced to work for the enrichment of another person. Scholars of the Maliki school have stated that if a person were to kidnap and sell a free man into slavery and it was impossible to locate that person or know of his whereabouts (ie to return him to his family), then the guilty party should have to pay the blood-wit (diyah) in total to that person’s inheritors.[1]
[1] – See Al-Hattab, Mawahib al-Jalil, and ‘Illish, Minah al-Jalil. The latter states this as the position of Imam Malik himself.
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