Z A KAT I N I S L A M I C L AW

Muhammad Khalid Masud

INTRODUCTION

Zakat in Islam is perceived both as a philanthropic practice and a government

tax. It is a personal obligation to God as well as a right of the state. This dual
nature of Zakat appears in the debates among Muslim jurists often as an
unresolved tension between state and individual. This debate goes back to
the early history of Islam when some tribes refused to pay Zakat to Madinah
and the Caliph Abu Bakr (r. 632-34) insisted on collecting it as a right of the
state created by the Sunna of the Prophet. The companions of the Prophet
were divided on this question. Eventually, Caliph Abu Bakr’s argument
prevailed and it is significant to note that this refusal by the tribes to pay
Zakat to the state is often described in the Islamic literature as apostasy and
the wars against these tribes are sometimes called wars on Ridda (apostasy).
This socio-political aspect of Zakat was further highlighted during the
Umayyad and Abbasid periods when the people questioned the right of the
unjust rulers to collect Zakat. The Sunni jurists generally ruled that only the
ruler, even if unjust, had the right to collect it. The jurists never allowed the
rulers the right to spend Zakat as they wished. Islamic doctrine based on the
Quran 9:60 specified the categories of expenditure. The state was allowed to
impose other taxes to meet its needs but such taxes often remained
distinguished as extra-shari’a taxes. This dual nature of Zakat is also
reflected in the modern debates where Zakat is defined on the one hand as
philanthropy and on the other as a complete socio-economic Islamic system.
Modern jurists often expand the categories of distribution.

It is not possible to review all these debates in this paper. I will briefly review
the juristic debates only on the two questions of collection and distribution of
Zakat in order to develop a critical understanding of this debate and to relate
it to a paradigm shift in the modern debates about Zakat.
 A BRIEF HISTORY
Little information is available about the history of the collection and
distribution of Zakat. Some information can however be gleaned from the law
books, which however do not provide details about the administration of
Zakat. It is a common view that Zakat was enforced in Medina in the second
year after Hijra (623 CE). Some scholars suggest other dates between the
first, fourth and ninth year of Hijra, some even suggest that Muslims were
obliged to pay Zakat before Hijra but the details were given in Medina. In fact,
the Qur’an uses different terms and phrases to urge Muslims to spend for the
good cause: Sadaqa, Zakat, Khayrat, Infaq, Ihsan, and Birr, all denoting the
general meaning of charity and kindness. Sadaqa and Zakat are used
interchangeably. Zakat, literally meaning purification and growth gradually
came to be distinguished form sadaqa, which signified voluntary act of
charity. The Qur’an contrasts Sadaqat with Riba (usury), prohibiting the latter.
The Qur’an declares that wealth grows in charity and disappears in usury (2:
276, 30:39). The Qur’an condemns hoarding and profiteering and describes
spending (Infaq) as a virtue which is usually mentioned together with the
virtue of faith (iman) (2:277, 31:4). The social welfare of the poor, the needy
and the orphan is stressed again and again as a sign of people who fear God
and the Judgment day (76:8, 30:38). Even stinginess in neighborly relations is
described as neglect of prayer (107: 4-7). Some jurists find these Qur’anic
verses revealed in Mecca as the origin of Zakat.
The collection and distribution of Zakat had been introduced by the Prophet
and reinforced by Abu Bakr but these institutions were systematized under
Umar I (r. 634-44), the second caliph. He established posts for collection of
Zakat from merchants, and discontinued payment to non-Muslims. Uthman (r.
644-55), the third caliph, introduced a distinction between declared (Zahir)
and undeclared (Batin) properties and ruled that the state would collect Zakat
on declared properties only. Zakat from undeclared properties could be
distributed by the owners themselves. Under the Umayyad the collection of
Zakat became debatable and some jurists ruled that the people were not
obliged to pay Zakat to the state if the officials did not arrive to collect it.
During this period collection of Zakat and other taxes were combined under
the same office. It led to a wide spread corruption and injustice. Some efforts
were made to correct the system but the mistrust in the system often led
jurists to encourage private distribution of Zakat.
It appears that by the twelfth century government collection of Zakat had
decreased. The official collection was connected more with the land revenue
and trade. Zakat became largely a private matter, some times collected by
the private religious institutions. During the colonial period, even this private
collection became disorganized. In the modern period after the
independence, debates whether Zakat should be collected by the state
revived. However, only a few states in Muslim countries officially collect
Zakat. Consequently, a conceptual change in the nature and function of
Zakat has produced a considerable literature treating Zakat as a philanthropic
act.

THE FUNDAMENTALS OF ZAKAT IN ISLAMIC LAW

Zakat is one of the five pillars of Islam; it is a religious obligation for every
adult Muslim possessing Zakatable property to pay Zakat annually. In addition
to Zakat, which is obligatory, waqf is another act of charity that is voluntary
but very popular in practice. Waqf is a charitable endowment which includes
education, travel, health, food and so many other purposes.
Islamic legal doctrines about Zakat define the details about the nature of
zakatable property, the rates of Zakat, the period of calculation, and about
the categories of distribution. The following is a skeletal summary of the
Sunni law.

PROPERTY

Islamic law defines Zakatable property as the property that grows in value.
These properties include gold, silver, animals, crops and merchandise. The
jurists differ on what includes in these categories and on the minimum of the
property on which Zakat is to be paid. Zakatable property is largely private,
corporate property is exempt from Zakat; only individual shares in a
corporate property are zakatable.

COLLECTION

In Islamic law it is generally presumed that Zakat is collected by the state,

although the debate continues about whether one can also directly distribute
it among the poor.

RATES

Zakat rates differ in accordance with the nature of property: gold, silver and
animals (1/40th), crops and merchandise for trade (1/10th), and on treasures
and mines (1/5th).

PERIOD

Zakat on crops is collectable at the time of harvest; on other properties Zakat

becomes due after they have been in possession for one year.

DISTRIBUTION

Islamic law enumerates eight classes of recipients as prescribed in the Qur’an

9:60: (1) the poor, (2) the needy, (3) those employed to administer the
(funds), (4) those whose hearts have been (recently) reconciled (to Truth), (5)
those in bondage (6) those in debt; (7) in the cause of Allah, (8) the wayfarer.

DEBATES AMONG THE CLASSICAL JURISTS

As said earlier, the jurists focused their efforts on interpreting the relevant
texts in the Qur’an and Sunna, and therefore diversity in their interpretation
exists. This diversity informed the various schools that appeared during the
evolution of Islamic law. The diversity also exists within the jurists of a school
and is preserved in the law books. The applied law focuses on uniformity,
rather than diversity. It either adopts one of the schools of Islamic law or
chooses one among the diverse opinions. Sometimes local customs also
inform the applied law. The purpose of this paper is not to go into the details
of these laws. I would like to illustrate only one aspect of this development:
the role of the state and the individual in the juristic reasoning about Zakat. I
have selected some prominent jurists from the classical period to illustrate
the juristic reasoning and limited my discussion to two issues: collection of
Zakat and the distribution of Zakat. Is the collection of Zakat a right/duty of
the state or an individual is allowed to pay it directly to the poor and the
needy? Who are the recipients of the Zakat? Are these categories fixed? Can
the distribution of Zakat be institutionalized? In order to make a sense of the
historical development of the Islamic law of Zakat, I have given the death
dates of the jurists.

COLLECTION

In Malik’s (d. 179/796) al-Muwatta, the earliest law book, it is quite evident
that Zakat was collected by the state, but the emphasis is on its voluntary
nature. The people in Medina objected to coercion in the collection of Zakat.
Malik viewed that it should be left to the people what and how much they
wanted to pay (Malik 1997, 185).
Shafi‘i (d. 204/820) argued that since Zakat combines obligation and volition,
one can pay to the state, authorizing it to distribute it on his behalf, only if
one declares (niyya) clearly as an obligatory payment, or his obligation
remains unfulfilled. For instance a person owes 400 dirhams and pays only
five dirhams, declaring as obligatory Zakat on the whole or part of it he will
be counted as if he has fulfilled his obligation (Shafi’i, N.d. 2:22). Apparently,
Shafi‘i is endorsing the above mentioned Maliki position that individuals can
pay whole or part of the due to the state as Zakat. It becomes clear further in
the following where this view is debated.
Sarakhsi (d. 483/1090) argues that Zakat is not the right of the poor, it is the
right of God; it is distributed among the poor on God’s behalf (Sarakhsi 1987,
2: 157). I understand that right of God implies right of the state. For example,
if an official collector came and the incumbent claimed that he had already
paid Zakat to the poor, the collector is still authorized to collect it. According
to Sarakhsi, Shafi‘i regarded Zakat as a right of the poor, the obligation is
fulfilled when the poor receives his due. Sarakhsi argued that it is a financial
right of God which becomes the duty of the ruler as a leader of the
community to fulfill. It requires that Zakat must be paid to his collectors. He
has the right to collect it even if the incumbent has actually paid it to the
poor (Sarakhsi 1987, 2:181). The ruler has the authority in Zakat expenditure;
a person has no right to deny the ruler this right by paying Zakat to the poor
on his own (Sarakhsi 1987, 161).
Sarakhsi gives a number of examples on this point.
If a ruler loses his authority in a certain area and the rebels take control, the
ruler has no right to collect Zakat from that area, and would not be entitled
later after his control is restored to collect Zakat for the period in which he
failed to provide security to the people (Sarakhsi 1987, 2; 161).
If the rebels collect Zakat on merchandise, the merchant need not pay Zakat
to the ruler because the ruler had failed to provide security (Sarakhsi 1987, 2:
180).
However, since the rebels did not collect it as Zakat, but extorted it from the
merchant and since it is not certain that they would distribute it to the
deserving recipients, it is proper that the merchant pays it again to the ruler.
This opinion is based on the consideration that Zakat is a matter between
that person and God (Sarakhsi 1987, 2: 180).
A person converted to Islam in a non-Muslim country, and despite knowing
that it was his obligation he did not pay Zakat while he stayed there. When
he comes to a Muslim country the Muslim ruler has no right to collect Zakat
for that period because he was not under his protection during that period. It
is however recommended that he pays Zakat as a personal obligation to God.
Sarakhsi notes that the Sultans in his period collected Zakat and other taxes
unjustly. Early jurists like Muhammad Hasan Shaybani (d. 187/ 803) did not
discuss this situation, but the jurists in Balkh in the eleventh century ruled
that the people should pay Zakat twice, once to the rulers and second
directly to the poor as a personal obligation to God (Sarakhsi 1987, 2: 180).
Zakat is a religious obligation (ibada); it cannot be fulfilled without
declaration (niyya). Declaration of whether the incumbent is paying
obligatory or voluntary is required only in case when a person is paying in
addition to obligatory dues. If a person has paid all what was due, regardless
whether he declared it or not, his Zakat obligation is fulfilled (Sarakhsi 1987,
3: 34).
Ibn Rushd (595/1198) notes that doctrinal differences among the jurists were
informed by whether a jurist regarded Zakat as a religious obligation (‘ibada)
or a right of the poor in the property of the rich. For example, as a religious
obligation Zakat will be paid only by the adult, but as a right of the poor even
the property of a child is Zakatable (Ibn Rushd N. d., 1: 207). Similarly, if a
person owes a debt to someone, some jurists argue that he must pay his debt
because the right of the lender is prior to that of the poor. Others argue that
he must pay Zakat because as a religious obligation it becomes due when the
property has been in his possession for one year (Ibn Rushd, N. d., 1: 208).
Ibn Rushd does not specifically discuss who collects Zakat; it is apparently
presumed that it is collected by the state. An example illustrates his view. If a
person had a Zakatable property in his possession for one year but lost it
before paying the Zakat to the state, he is not obliged to pay Zakat. Ibn
Rushd explains that that is the ruling of those jurists who hold that one can
pay Zakat only to the state, regardless whether the ruler exists or he is unjust
(Ibn Rushd, N.d., 1:231).

DISTRIBUTION

According to Malik (d. 179/796), the decision about who receives how much
among the recipients of Zakat must be left to the state (ruler) (Malik 1997,
186).
Shafi’i (d. 204/820) stressed that since the categories of recipients have been
given as a divine obligation they must be strictly adhered to; as long as
people in these categories exist, Zakat cannot be distributed on others
(Shafi‘i, N.d. 2: 71). He also clarified that the pagans and the non-Muslims
cannot be paid from Zakat (Shafi‘i, N.d. 2: 89).
Sarakhsi explains that the purpose of Zakat is to alleviate poverty, because
the Prophet said, “Liberate them from begging” (Sarakhsi 1987, 2: 157). The
eight groupings are the categories of expenditure, not the categories of
recipients. Thus the ruler can rightfully spend the whole Zakat on one of the
categories (Sarakhsi 1987, 3: 10).
The Prophet paid from Zakat to the non-Muslim tribal leaders in order to
protect Muslim community from their mischief (Sarakhsi 1987, 3: 8).
Imam Malik allowed purchasing and freeing a slave from the Zakat money.
Sarakhsi disagreed. He argued that possession of the Zakat money is
required to be transferred (tamlik) to the recipient. In this case the slave does
not receive the Zakat, only his possession is transferred from person to the
other who frees him.

The above citations from jurists of eighth to twelfth centuries illustrate that
the dual nature of Zakat continued to keep the jurists ambivalent about the
role of the state in collection and distribution of Zakat. Emphasis on the
private distribution of Zakat increases along with the discussion of whether
the ruler is just or not, already in the eighth century. That is also the period
when the Abbasid caliphs began to regularize public finance and the jurists
wrote books on taxation: Abu Yusuf’s (d. 798), Kitab al-Kharaj, Abu ‘Ubayd b.
Sallam’s (d. 838) Kitab al-amwal, are examples of this literature that stresses
separation between Zakat and other taxes. Zakat, along with other taxes
must be collected by the state, but the jurists begin to act like civil society by
separating Zakat for social welfare as against other taxes that were for public
finance. The debate as reflected in the eleventh and twelfth centuries, further
distinguished between Zakat as obligation to state and as an act of ibada (a
personal act of charity). After the twelfth century, the political situation began
to change; Muslim polities either encountered setbacks at the hands of non-
Muslims (in Spain by Christians, and by Mongols in the Asia), or were
weakened by internal strife. The collection of Zakat suffered accordingly.
Focus shifted from Zakat as a state affair to a private welfare institution. The
religious organizations and institutions filled this gap during this and the
colonial period.

MODERN CONCEPTION OF ZAKAT

For the modern period, I have chosen two texts: Yusuf al-Qaradawi’s Fiqh al-
zakat and Wahba al-Zuhayli’s al-Fiqh al-Islami. While Zuhayli deals with Zakat
in his eight volume book as one of the subjects, al-Qaradawi dedicates two
volumes to a discussion of Zakat. Both texts are widely used today. Al-
Qaradawi from Qatar and Zuhayli from Syria are also globally known jurists.

WAHBA AL-ZUHAYLI

Zuhayli’s work is in fact a compendium of the doctrines of the four schools; at

times he also offers his own opinion. He explains that the third category of
recipients which refers to the collectors of Zakat requires that Zakat is paid to
the state. However, he adds, as other verses define Zakat as a right of the
recipients private distribution is also permissible (Zuhayli N.d., 2: 887). He
cites the Malik jurists who say that if the ruler is unjust, Zakat may possibly
be distributed individually. Zuhayli includes rented properties like houses,
planes, cars and ships in the Zakatable property. However, Zakat does not
apply on the actual value of the properties, but on the received rent (Zuhayli
N.d., 2: 864). He allows expenditure of Zakat on public welfare causes,
including bridges and mosques (Zuhayli N.d., 2: 875). Zuhayli distinguishes
Zakat as ibada from tax; it is for specifically defined recipients.

YUSUF AL-QARADAWI

Al-Qaradawi opens his discussion stressing the need of a fresh look at Zakat.
The classical view of Zakatable property is very narrow and the jurists are
divided on the collection of Zakat from the property of the children, various
crops, loans, commercial goods and precious stones. He includes rented
buildings, factories, instruments and plants, trade companies and means of
communication in the taxable properties. He also clarifies that Zakat is
distinct from the general acts of philanthropy urged in the Meccan part of the
Qur’an (Qaradawi 1986, 1:60). He also dismisses the classical discussion
between declared and undeclared properties; today nothing is undeclared
(Qaradawi 1986, 1:766).
Yusuf al-Qaradawi defines Zakat as a social insurance that requires a
disciplined institution, hence it must be the responsibility of the state to
collect and distribute Zakat. He defends his position with several arguments.
First, separation between religion and state is not an Islamic concept; hence it
is irreligious for the state to undertake this responsibility. Second, if it is left to
individuals, they may find it burdensome and avoid paying it. Third, the
dignity of the recipient is well respected if Zakat is distributed by the state.
Fourth, Zakat aims at general public interests, which individuals cannot
safeguard. (Qaradawi 1986, 1:755).
Qaradawi is very clear that the Zakat is not an act of individual kindness and
voluntary charity; it is fixed tax which a Muslim state collects and distributes
(Qaradawi 1986, 1:883). He, however, differentiates between Zakat and tax;
it is an ibada, clearly defined and state cannot decrease or increase it. That is
why one is obliged to pay Zakat as well as other taxes levied by the state. He
disagrees with those jurists who argue that one need not pay taxes after
paying Zakat. He clarifies that only unjust taxes are contrary to Shari’a
(Qaradawi 1986, 2:1116). He explains that taxes do not fulfill the specific
objectives of Zakat, if they do then as Shaykh Abu Zuhra ruled there was no
need to pay Zakat in addition to taxes (Qaradawi 1986, 2:1117).
Qaradawi argues that Muslim jurists generally excluded public welfare and
charity purposed from the expenditure of Zakat, but some jurists expanded
the meaning of the seventh category “in the cause of Allah” to include all
charity causes (Qaffal), roads and bridges (Ibn Qudama, Malik and Hasan
Basri), general welfare of the Muslim community (Rashid Rida and Shaykh
Shaltut), the Muslim charity and welfare organizations (Shaykh Makhluf). The
Hanafi jurists insist that institutions and causes are not the lawful recipients
of Zakat; only individuals can receive it (Qaradawi 1986, 2: 635).
Despite this emphasis on the role of state, Qaradawi, however, concludes
that state in his theory means an Islamic state. A state or government that
does not apply shari’a and denies Islam to be the foundation of state and the
constitution has no right to collect Zakat (Qaradawi 1986, 2:775).
 Critical Analysis

Quite obviously, these are jurist doctrines, not reports about the applied law
of Zakat. They might reflect sometimes the actual application, and may
occasionally comment on the contemporary situation, but these law books
are not designed to report the practice and the application of Zakat law. It is
not that these jurists were not aware of the actual practice or that they did
not care about it. On the contrary, the diversity in the juristic opinions, as
reflected even in the above selection, shows that the jurists took care of
minutest details of Zakat law. The diversity and difference of opinion among
the jurists is often explained from hermeneutic perspective; the difference of
opinion emerged from their different understanding or interpretation of the
texts. This approach to the study of Zakat in Islamic law fails to explore the
political dimension of the development of Zakat law. This obscures the
perception of Zakat as an act of philanthropy that compelled the jurists to
stress the aspect of its being a religious obligation in order to protect the
institution of Zakat from unjust state interference.

There is a need for a critical analysis of Zakat law from the perspective of
political economy of meaning. In other words we may look at it as a political
struggle between state and the jurists who acted as some sort of civil society
to check the misuse of state power in the collection and distribution of Zakat.
This analysis requires more space than this paper allows. I will only briefly
outline a possible critical view of these doctrines from this perspective.
I have cited above the following classical jurists: Malik, Shafi’i, Sarakhsi, and
Ibn Rushd. Malik grew up in Medina at a time when Muslim community had
been suffering under the Umayyad regime from heavy and unjust taxes. The
Umayyad system of the collection of taxes had become corrupt and
oppressive. The distribution of Zakat ignored the aspect of the welfare of the
people. Malik wrote his al-Muwatta when Abbasids had replaced the
Umayyad and were planning to Islamize the political economy. Malik had
however no sympathy with this new regime either. He was in fact punished
by the Abbasid governor on suspicion of supporting a rebellion against the
Abbasids. There is also a story about the Abbasid caliph Mansur (r. 754 – 775)
requesting to codify Islamic law for the caliphate. In another story Mansur
asked Malik’s permission to adopt his al-Muwatta as source of law. Malik
refused arguing that such adoption would eliminate the diversity in the
development of Islamic laws. Authenticity of these stories has been
questioned in recent studies (E.I., 2nd edition), but there is no doubt that Malik
and his contemporary jurists did not trust the state and would not allow them
to use religion to enhance their political power. Malik did not question the
caliph’s right to collect Zakat, but he opposed coercion. Insisting on the
voluntary nature of this religious obligation he ruled that it should be left to
the individual how much one wanted to pay to the state and how much to
distribute himself.
Since the Umayyad period, the jurists had been generally avoiding
association with the state. Stories about jurists (for example Imam Abu
Hanifa) refusing to accept employment with the state are well-known. Some
of these jurists were actually involved in political activities against the
Umayyad and the Abbasids and were supporting the opposition movements;
most of them were neutral. When the Hanafi School chose to support the
Abbasids, scholars like Khatib Baghdadi criticized their political involvement.
Abu Yusuf (d. 798), who was appointed as chief justice was particularly the
target of his ridicule.
Shafi’i lived in a period when the Abbasid caliphs had introduced Islamization
of the political economy. Abu Yusuf had codified the revenue laws (kitab al-
kharaj) on the request of caliph Harun al-Rashid (r. 786 -809). Sahfi’i was
closely associated with the Maliki and Hanafi schools; he was a disciple of
Malik and had studied with the Abu Hanifa’s disciple Muhammad Shaybani.
Shafi’i’s sympathy, however, was with the opposition Hadith and Alawi
groups. Shafi’i finally decided to move to Egypt and settle there.
Shafi’i was critical of both Hanafis and Malikis and expounded his differences
with them clearly in his works which now form part of his great work Kitab al-
Umm. His treatise (al-Risala) is a critique of his contemporary juristic
reasoning and a systematic attempt to restrict it to the confines of Hadith. In
his doctrines about Zakat, he insists on its religious nature of obligation. He
develops the idea that Zakat is not the right of the state; it is a right of the
poor and needy and the state act as an intermediary between the donor and
the recipient.
Sarakhsi’s detailed criticism of Shafi’i’s doctrines provides insight into the
ongoing debate between the jurists who supported and who opposed state’s
interference in the collection and distribution of Zakat. Sarakhsi lived in a
period when caliph was just a figurative head of the state, the executive
power rested with the sultan. In his life the sectarian strife has deeply
weakened the state. In central Asia, where his life ended, local Amirs had
gained strength. The hold of Hanafism on the Abbasid Caliphs had also
ended; the caliphs in his period were Shafi’is. Sarakhsi’s support for the state
was thus not based on Hanafism; it was institutional.
Sarakhsi views Zakat in the larger context of public finance and social
welfare. The idea that right to collect taxes makes the state responsible for
the protection of the taxpayer appears to be very prominent in his doctrines,
obviously in view of the political instability and rebellions in Sarakhsi’s period.
The state had almost failed and the jurists were unable to play an effective
role as civil society. Although Sarakhsi stressed Zakat as a right of the state,
yet he developed in more details the idea of Tamlik (possession), found in the
doctrines of Hanafi and other schools. The idea of Tamlik argued that the
Qur’anic verse 9:60 restricts the distribution of Zakat to specific categories
using prepositions that demand that the possession of property must be
transferred to the specified individual recipients. This idea protected Zakat
from mixing it with other taxes and thus limited state interference. However,
unlike other jurists, he left it to the discretion of the state to allocate Zakat to
these categories; it was not required to be distributed among all the eight
categories. Sarakhsi argued that the purpose of Zakat is to liberate the poor
from poverty (ighna ‘an al-mas’ala), not to perpetuate poverty.
Ibn Rushd lived in Spain under the Almohads. He also served as a qadi. He
was a jurist but was known more as a philosopher. The jurists in Spain had
emerged as a powerful aristocrat class. They successfully resisted all such
trends that would undermine their influence as a Maliki school. They had
successfully opposed Sufi and philosophical trends successfully until the
eleventh century when Almoravids softened Maliki School’s opposition to
Sufism. The Hadith movement also could not penetrate until the Almohads in
the twelfth century revived it in the Maliki School. The Almohad Puritanism
encouraged a type of rationalism that was not compatible with Spanish
Malikism and therefore could not penetrate. Almohad economic reforms
which stood for state control also did not suit the jurists’ position in Spain.
Philosophers like Ibn Tufayl (d. 1186) and Ibn Rushd were patronized by Abu
Yusuf Ya’qub (r. 1163-84) the Almohad caliph. The jurists’ opposition to Ibn
Rushd became obvious when the Almohad Caliph Ya’qub al-Mansur (r. 1184-
99) banished Ibn Rushd and condemned his doctrines in order to gain favor
with the jurists.
Ibn Rushd’s Bidayat al-Mujtahid offers a comprehensive analysis of the
doctrinal differences among the jurists and its reasons. On Zakat, he
concludes that jurists differed mainly on the question whether it was a tax or
a religious obligation. They could not separate these aspects fully and
therefore their opinions were divided.
In the Fiqh literature, a distinction is made between a just and unjust ruler
and while both can collect Zakat, some jurists advised the people that in case
of unjust ruler they must also pay Zakat on their own. The discussion about
this distinction varies often with an emphasis on social justice. The law books
do not go into the details of who is unjust, but in the context of Zakat, Shafi’i
contrasts a just ruler with rebels who control a certain area. In some books,
an unjust ruler is identified as fasiq (who commits grave sins). Generally
speaking, an unjust ruler implies the one who cannot be trusted in the fair
distribution of Zakat. In that case, the jurists mostly rule that one cannot
refuse to pay Zakat to him, but as far as possible one must withhold this
payment to him either by hiding or by declaring part of the property.
Generally, as long as a ruler is Muslim and does not professedly oppose
Islamic laws was regarded as a just ruler, if he did not misuse the Zakat. Ibn
Taymiyya in the fourteenth century defined more clearly the concept of a just
ruler as the one who applies Shari’a.

In the modern period, when the Muslim states gained independence, the
Muslim rulers mostly continued the fiscal systems introduced during the
colonial period. The Zakat remained usually a private affair. However, a very
significant development had taken place in the Muslim society. During the
struggle for independence Muslim political leaders, in order to mobilize mass
support in their favor had helped the Ulama to organize themselves as a
political force. After the independence, the Ulama established political
parties, educational and fatawa institutions, newspapers, magazines and
printing presses. They participated in electoral politics but as this politics was
not ideological they did not succeed much there. Yet they became a source of
influence and legitimacy. Gradually more ideological religious groups
emerged who called for an Islamic state more clearly than the traditional
Ulama. These new groups formulated Islamic political ideology in which Zakat
played a prominent role. It stood for a comprehensive system of public
finance. On the ideological level it offered a third alternative to capitalist and
communist economies.
In contrast to traditional Ulama, who defined Zakat as purely a religious
obligation whose collection and distribution was left to the Imam, the new
interpretation of Zakat argued that only an Islamic state could collect and
distribute Zakat. I have cited Qaradawi on this point.
Let me illustrate it further with the example of Pakistan.

Introduction of Zakat in Pakistan

· The system of zakat was introduced in 1980 in Pakistan under
General Ziaul Haq. Earlier, when Ayyub Khan planned to introduce in 1960s,
the Ulama in Pakistan opposed it arguing that Zakat was not a tax and cannot
be imposed by the state. Zakat and Ushr Ordinance, 1980 on the other hand
was warmly welcomed by the Ulama. There could be various possible
reasons for this change of attitude; Ziaul Haq’s government had taken the
Ulama into confidence, the Ulama were certain about the proper distribution
of Zakat as they were members of the distributing committees and the
Madrasas were among the recipients, or that the Pakistan was now an Islamic
state.

The ordinance divided the assets subject to Zakat into two categories viz;
subject to compulsory levy of Zakat and those at which Zakat was payable
voluntarily at the discretion of the owner. Zakat was to be deducted on saving
accounts once a year (on the first of Ramadan).
· According to the Ordinance, Zakat receipts are to be used for providing
assistance to the needy, the indigent and the poor, particularly orphans and
widows, the handicapped and the disabled, eligible to receive Zakat under
the Shari’ a, for subsistence or rehabilitation.
The program collected large sums of money, more than 20 billions in the
years of introduction, but soon came under criticism for lack of an efficient
distribution system. The Ulama also objected to the method of compulsory
collection of Zakat through banks.
· Nur Ahmad Shahtaz (2000) criticized the Zakat system and
raised several objections. His main criticism was that the system has defined
Zakat as a state obligation and marginalized its religious and individual
aspect. He also noted that the people have no trust in the Zakat
administration; misuse of funds, unlawful distribution and embezzlement has
been reported in the press. More significantly, he argues that since Pakistan
is not an Islamic state it has no right to collect and distribute Zakat. He
particularly calls the system of collecting Zakat through Banks as contrary to
Shari’ah. (Shahtaz 2000, 52, 63). He has also collected the opinions of well
Muftis in Pakistan: Mufti Abdul Qayyum Hazarawi, Lahore; Mufti Munibur
Rahman, Karachi and Mufti Muhammad Iqbal, Karachi. Mufti Munibur Rahman
recommends that to be careful one must pay Zakat on one’s own. The other
Muftis recommend that one should withdraw from banks one’s savings one
day before in order to avoid deduction. One should distribute Zakat among
the deserving on one’s own (Shahtaz 2000, 63- 71).
Similar fatwa have been issued from Dar al-Ifta Amjadiyya, Karachi, Dar al-Ifta
Jami’a Na’imiya, Lahore, jami’a Qadiriyya Rizwiyya, Faysalabad and Dar al-Ifta
Jami’atul Ulum al-Islamiyya, Bannuri Town, Karachi.
The Ulama in India, e.g. Atiq Ahmad Qasimi, have also endorsed this position
saying that in the absence of Islamic state, it is not possible to establish a
system of collection, and hence there is no need to establish a social system
of zakat.
Disregarding the apparent political implications of allowing some
governments to collect and distribute Zakat because they enjoy the trust of
the Ulama, the main criticism about the maladministration of Zakat arises out
of a distinction between tax and zakat. The main thrust of Ulama’s criticism is
based on treating it as an act of charity and philanthropy for social justice.
However, the Zakat law has not been able to clearly define the zakat system
it in these terms.