Fiqh and Its Heritage through the Eyes of the Faqih and the Politician

          Al Shafi‘i reports that when Tawoos was in charge of administering alms from the caravan on behalf of Mohammed bin Yousuf he came to the people and said: “Pay your zakat (statutory charity), may Allah have mercy on you, out of [the bounty] that Allah has given you.” When they did not pay it to him, he asked them: “Where are your poor?” Then, according to al Shafi‘i, “he took [the payment] from this person and paid it to that person without taking anything for himself; he did not profit by it and he did not pay anything out of it to the Wali.” He added that when a member of the caravan turned his back on him he did not say to him: ‘Come on. Hand it over.’

          Al Shafi‘i commented: “In my view this is acceptable . . . though I would prefer him to have been suspicious of the ahl al suhman (‘people of the shares’); he could then have inquired and made those accused [of concealing their wealth] swear on oath [that they were telling the truth], because many of them were cheating. No-one should harbour suspicions, make someone swear an oath or assume charge until he has ‘put it in its place’. This does not apply to anyone who has not ‘put it in its place’.”¹

          The above paragraphs illustrate the problematic relationship between fiqh (jurisprudence) and politics - that is to say, between the ‘ilmiy (“religious-scholarly”) authorities and political rulers - and the impact of that relationship upon Islamic fiqh, particularly the area of fiqh related to zakat. Many students of the subject are under the false impression that fiqh is based solely on an understanding of the scriptural text and believe that realities on the ground have no part to play in the matter. In fact, both are relevant.

          As al Shafi‘i reported, Tawoos did not say “Come on. Hand it over” to a person who turned his back on him. This indicates clearly that he was unwilling to impose demands upon people in a state whose political legitimacy and religious credentials he did not recognize. As we have seen in the above paragraphs, this was an attitude al Shafi‘i approved of, though he noted that he would have preferred to distinguish between two types of cases. In the first of these the zakat is to be “put in its place” and the person in charge of administering the alms should “be suspicious of the ahl al suhman (‘people of the shares’)” and inquire into their affairs and make them swear an oath. In the second instance it is not to be “put in its place”; in this case nobody should be regarded with suspicion or made to swear an oath. Here al Shafi‘i’s approach seems to demonstrate a more logical attitude towards dealing with the political environment than was commonly the case.

          Islamic fiqh has developed as the result of an interaction between scriptural text and realities on the ground; indeed, it could be described as the product of a conflict between the religious scholars and the political rulers. After an initial period of harmony which lasted throughout the time of the Rightly-Guided Caliphs the religious and political establishments diverged, creating a space between them that was occupied by a sort of “no-man’s-land” of mutual suspicion in which the political ruler sought to the extent of resorting to coercion - by making him swear an oath of allegiance, while the faqih showed his refusal to do so by seeking refuge in

his scholarship and using his influence with the general public to mobilise opposition to the ruler, or emir.

          Conversely, and unsurprisingly, when a faqih became closely affiliated to the governing authority he also tended to use fiqh as a tool for legitimizing the state’s rulers, while in its turn (and this was the faqih’s ultimate aim) the political authority sought to use its power in order to reinforce the din (religion) and the role of religion in the community. However, when a separation occurred between the two, the faqih withdrew from public life, studiously ignoring what was going on around him, holding the political authority responsible for everything that was happening in the wider world and devoting himself to “personal fiqh” - i.e. fiqh of concern to the individual rather than the community or the Ummuh (Muslim Nation). His focus would thus be on salvation in the next world and he would ignore any worldly commitments. According to Dr. Taha Jabir al Alwani: “This was a really major factor leading to the separation of fiqh and usul alfiqh (the ‘roots’ of jurisprudence) from significant aspects of Muslim ‘practical’ life, with the result that [fiqh scholars] began to approach many issues from a theoretical and idealistic angle. Consequently, their [fiqh] became an expression of what Muslim life ought to be, rather than what it actually was or could be.”²

          When there was a “glut” of zakat funds, those who controlled them began to use them for their own purposes rather than those for which they were originally designated. This led to a kind of tug-of-war between the emirs and the fuqaha’ (pl. of faqih), in which the emirs used all the moral and material means at their disposal to gain control of the funds so that they could use them to strengthen the state (and also - on occasion - squander them on luxuries). Meanwhile, the fuqaha’ used their “scholarly space” to try to prevent those funds from being spent for purposes other than those for which they were originally intended. During this period, which was critical for the ruling regime’s legitimacy, the fuqaha’ sought to revive the model of the Prophet (PBUH) and the Rightly-Guided Caliphs, and in this they were partly successful.

          From the above we can conclude that the “space occupied by fiqh” was influenced by the political environment. There are two models to consider here: firstly, direct political intervention by the ruler “invading” the faqih’s space and spreading ideas that serve political interests (this could involve fabricating and propagating scriptural texts, winning the support of leading religious figures in order to gain legitimacy for the regime among the masses, or promoting fiqh opinions which serve the regime’s purposes), and secondly, a situation in which the political and religious establishments vie with each other in an attempt to dominate the public space.

          If we take a close look at the fiqh of zakat in particular, we may come across some useful examples that could cast light on this subject. Although it is a field which has not been sufficiently studied, a number of well-known Prophetic Traditions are narrated in several books of Hadith. This one is particularly familiar: “If an alms collector comes to you, let him leave you in a state of contentment.”³Another Hadith states: “People of the A‘rab

(desert Arabs) came to the Messenger of Allah (PBUH) and said: ‘Some alms collectors came to us and treated us unjustly.’ [The Prophet] replied: ‘Make your alms collectors contented.’ They said: ‘O Messenger of Allah, [what about] if they treat us unjustly?’ He replied: ‘Make your alms collectors contented.’” Another narration says: “[Make your alms-collectors contented] even if you are treated unjustly.”⁴

          Since Islam calls for justice and equity, we may wonder whether these narrations are compatible with the values of justice promoted by the din, or whether they sanction injustice - which is something no rational person can accept. It is not altogether unlikely that these Hadith narrations were concocted to give theoretical support to the abusive and despotic style of alms collection under the regimes of the Umayyad and Abbasid states and provide religious justification for the benefit of the political authority at that time. However, what is more probable is that they were designed to underpin the Ash‘arite position, which sanctioned the notion of kingship instead of a Caliphate while at the same time underlining the principle of the sovereignty of the Shariah. (As Abdul Majid al Saghir points out, this notion was not accepted by the majority of Muslims.)⁵

          Anyone who takes a close look at the texts of these narrations will also suspect their authenticity due to the poor quality of the language.

          Islam gives the highest priority to the principle of justice, which it sees as the basis of the relationship between ruler and subject, and the wealth an individual is required to pay to the state falls into this category. The following two Traditions give some indications of that relationship.

          In the first, two of the Prophet’s alms collectors came to the owner of some sheep and said: “We have been sent by the Messenger of Allah (PBUH) to collect alms.” He replied: “What alms?” They said: “A ewe from your [flock of] sheep.” He offered them a young ewe with plenty of milk in its udders and they said: “We were not instructed to [take] that.” Then he offered them one that was about to give birth and they said: “We were not instructed to [take] that. We were not instructed to [take] a pregnant animal or one full of milk.” So he offered them a two-year-old or young she-goat. They accepted it; then they invoked blessings upon him and went on their way.⁶

          In the second the Prophet sent a kharis (a man who collects the tithe on the date harvest) [to collect the tithe] and a man came and complained about him to the Prophet (PBUH) and said: “He made me pay more than my due.” So the Messenger of Allah (PBUH) said [to the alms collector]: “Your cousin claims that you made him pay more than his due.” He replied: “O Messenger of Allah, I left him enough to [cover] his family’s nakedness, feed the poor and for what the wind causes to fall.” So [the Prophet] said: “Your cousin did not make you pay more than your due and he treated you fairly.”⁷

          These two Traditions show that the relationship between the individual and the state was governed by the values of justice and fairness. The alms collector refused to take more than he was instructed to, while if a person paying the alms felt that he was being unjustly treated he had the right to lodge a complaint against the alms collector. Moreover, his complaint would be listened to. This continued to be the case throughout the time of the Rightly Guided Caliphs.

          When Abu Bakr al Siddiq sent Anas to Bahrain he gave him the following instruction: “This is the obligatory alms payment decreed by the Messenger of Allah (PBUH) for [all] Muslims, which Allah commanded His Messenger (PBUH) [to impose]. When a Muslim is asked to pay the correct amount, he should pay it, while [anyone] who is asked for more than that should not pay it.”⁸

          This instruction is in stark contrast to the narration we have quoted above which contains the words “Even if you are treated unjustly”, which reflects the desire of a grasping king to indulge his instincts for oppression and injustice and provide him with easy access to wealth under the cloak of religion. Al Nawawi was right to give Chapter 55 of his book Kitab al Zakat the title “Bab Irdha’ al Sa‘iy Ma Lam Yatlub Haram” (“The Chapter on Giving Gratification to the One Who Strives As Long As He ls Not Seeking

That Which is Forbidden”)⁹

          However, in the face of political oppression the faqih has no option but to submit to the status quo and acquiesce in the power of the sword, since this is the only way to protect the Ummuh (Islamic Nation/Community) from even worse suffering and avert the danger of fitnah (turmoil/ subversion). I offer these two different views to illustrate my point:

          First, the view that it is permissible to pay zakat to an unjust emir. Ibn Salam reports: “A man came to Ibn ‘Umar and said: ‘In your opinion, to whom should I pay zakat?’ He replied: ‘Pay it to the emirs, even if they use it to [buy] meat for the dogs at their tables.’” It is also reported that a man said to Ibn ‘Umar: “I have funds, so to whom should I pay the zakat on them?” He replied: “Pay it to these people.” (He meant the emirs.) [The man] said: “If [I do that,] they will use it [to buy] clothes and perfume.” [Ibn ‘Umar] replied: “Even if they [spend] it on clothes and perfume [you should pay it to them].”¹⁰

          When Sa‘id bin Jubair was asked about zakat, he gave this somewhat evasive reply: “Pay it to the wali al ‘amr (person responsible).” In response the questioner said: “You instruct me to pay it to the wali al ‘amr and he will do this and that with it.” Sa‘id answered: “Put it where Allah commanded you [to put it].” You ask me about people’s heads [- i.e. what is going on in their minds -] and I am not in a position to inform you.”¹¹

          Second, the view that it is permissible to pay tolls and taxes out of zukat funds. Ibn Salam reports that Anas bin Malik and al Hasan said: “What has been paid on bridges and roads is sadaqah madhiyah.” By this he meant that it was an acceptable alternative to zakat.

          It is reported that Ibrahim said: “Malik calculated zakat on what the tithe collectors have taken from you.” Ibn Salam also narrated a number of

Traditions from the fatwas of the Tabi‘in (“Followers” - i.e. the generation after the Prophet’s Companions) along with the observation: “[The Traditions] we have are valid, although some of them may give other opinions.”¹²

          These two examples clearly show the degree to which the faqih was prepared to make concessions to the ruling authority. At the same time, they also represent a transitional period between the original harmonious relationship between faqih and ruler and the breakdown of that relationship, following which the faqih began to take practical steps to protect his “fiqh space” and ensure that funds designed for charitable purposes did not fall into the hands of the political authority.

          The evidence suggests that the first person who tried to frame this concept in precise systematic terms was al Shafi‘i when he devised usul al fiqh - a discipline in which he endeavoured to establish the rules for ijtihad (interpretative judgement) and dealing with scriptural texts. In doing so, as ‘Abdul Majid al Saghir¹³ points out, one of his aims was to protect the “fiqh space” and Islamic Shariah concepts from being exploited by the ruling authority for its own ends.

          Moving on from usul al fiqh to furu‘ al fiqh  (the “branches” – or specifics - of fiqh), we find that al Shafi‘i sought to ensure that funds destined for charitable purposes were removed from the control of the political authority. This entailed four lines of approach:

          First, he interpreted the Qur’anic verse on charitable payments to mean that it was obligatory to distribute zakat funds equally between the eight categories mentioned in that verse, and that it was not permissible to spend them on any other category.¹⁴ Consequently, the wali al ‘amr had limited freedom in the way he administered the funds. This was not actually a new fiqh position; it had been current since the time of the Tabi‘in, though it had been opposed by some fiqh scholars such as Abu ‘Ubaidah Muslim bin Abi Karimah in his Risalah (Epistle) on Zakat.¹⁵ What al Shafi‘I did was give prominence to the idea and establish it as the right and proper practice.

          Second, it was repeatedly stressed that zakat was the property of the poor by right and that the state was not entitled to it. Apart from the Hadith “And render it unto their poor,”¹⁶ there were no other scriptural texts to provide clarification on how alms should be distributed, so consequently there was a widely-held belief that the state should play no part in collecting alms or in spending them on public affairs.

          Third, it was maintained that it was not permissible to transfer zakat to another geographical to area until the needs of the people of the locality where it had been collected had been satisfied. Once this was achieved, it should be transferred to the nearest or adjacent locality. This principle ensured that it did not end up in the state capital.

          Fourth, zakat was completely separate from the state’s general funds.

          All these concepts were accepted by scholars from the different schools of fiqh. Where there were disagreements, these were due either to contradictions concerning some Hadith narrations, or differences in fiqh ideological positions.

          One thing which will be apparent to any student of fiqh is the fact that the fiqh governing zakat underwent significant changes in states where the religious and political establishments were in harmony with each other. One example of this is the case of ‘Uthman, who was not concerned with the collection of zakat on amwal batinah (assets that are not visibly identified, such as cash, gold, silver etc.) and was content to collect it only on amwul dhahirah (visibly identifiable assets). The different schools of fiqh had various interpretations over the way this should be understood. While their positions were not identical, some of them (the Hanafis, Shafi‘is and Hanbalis) wanted to emulate ‘Uthman and make his method a hard and fast rule that could not be changed.

          Their approach simplified the matter considerably, eliminated the “interests aspect” and gave the ijtihad opinion of one of the Prophet’s Companions the status of an act of worship. Ultimately, though, it was based on a political decision which gave religious endorsement to all those who maintained that zakat on amwal batinah was not payable to the wali al ‘amr - either as a matter of choice (in the case of the Hanafis) or as a “preferred” course of action (in the case of the Shafi‘is and Hanbalis).

          Opinions on the question of the wali al ‘amr’s responsibility for collecting zakat were strongly influenced by political factors, and the faqih’s attitude to the state (whether “pro” or “anti”) was undoubtedly bound to affect his view, because zakat collection is first and foremost an act that represents the sovereign prerogative of the zakat collector. Therefore, it was natural that a “tame” faqih should support the state on this question, though without ignoring the relevant scriptural texts, while an “anti-state” faqih would oppose it insofar as he was able to do so.

          This is how ‘Uthman’s position on not collecting zakat on amwal batinah became an established law that no state could violate.

          On this question the Hanbali school - the school that had the most distant relationship with the state - considered it preferable for a person to be personally responsible for distinguishing between the two categories of his own zakat payment himself. In its view this was better than paying it to a just imam (possibly because of the trials and tribulations suffered by the school’s founder - Ahmed bin Hanbal). The Shafi‘i position was similar and regarded making a distinction between the categories of zakat payments as being preferable, even if the person in charge of collecting them should demand otherwise, and supports the view that al Shafi‘i basically devised usul al din as a tool for protecting the fiqh “sector” from the power of the politicians. Al Shafi‘i concluded that this was necessary after a long period during which the community of fiqh scholars had suffered persecution by the ruling authorities.

          The Hanafi position reflects Abu Hanifa’s cautious attitude to the ruling authority after he himself had been persecuted by them. That is why he and Abu Yousuf accepted ‘Uthman’s system as a Sunnah - a position that no-one has countermanded since.¹⁷

          The lbadi and Maliki positions are consistent with those of the ruling authority and approach the scriptural texts from the angle of “interests and Shariah politics”. Where the Ibadis were concerned, this was due to a desire to propagate their ideas and reinforce the power of their state, while the Malikis’ position reflected the close relationship that had existed between Malik and the powers that be during his time, which was later reproduced by the states that followed the Maliki school in the Arab Maghreb. According to al Kindi’s Bayan al Shar‘(Explanation of the Law of Islam): “If the imam is just, alms may only be delivered to him or his employees,”¹⁸ while Malik states: “If the imam acts justly, there is no scope for a man to differentiate between zakat on his cash assets and [on his] other [assets].”¹⁹

          Although the ambiguity on zakat has its roots in the past, it is still very much alive in present-day fiqh. In al Ashqar’s view the change in the prevailing legal opinion on the subject dates from the end of the era of the Rightly-Guided Caliphs, when fatwas were issued sanctioning concealment of zakat on amwal batinah from the authorities and allowing it to be paid directly to its recipients by the individual; this was because there was a general feeling that the authorities were abusing their position over the collection of zakat. It was concluded that the ideal solution was to follow the “mabda’ al ijma‘iy” (“consensus principle”) that was eventually reached by Muslim scholars after a long period of intensive debate.²⁰

          (It is interesting to note that the “mabda’ al ijma‘iy” after ‘Uthman is still recognized. However, one is tempted to wonder if there actually was a “mobda’ al ijma‘iy” or whether this is a new expression which has a different meaning from the one we usually understand by “ijma‘”, or “consensus”).

          Other scholars maintain that the whole subject is just another example of “Shariah politics” and falls into the category of “the wali ul ‘amr’s prerogatives”. Yousuf Hamid is convinced that that the ‘Uthman system gives the wali al ‘amr the specific right to authorise “arbab al amwal” (“owners of capital”) to pay out amwal batinah as they see fit (from which we can understand that he also has the right to authorise the disposal of amwal dhahirah in the same way), while it is his responsibility (i.e. the responsibility of the wali al ‘amr himself) to monitor the process. Moreover, if it is permissible to authorise individuals to administer zakat, it follows that it must also be permissible to grant collective authority to a body such as an institution, establishment or association.²¹

          Another example of the convoluted relationship between fiqh and politics can be seen in the legislation governing the relationship between the state and the individual which, while one of its aims is to simplify procedures, can become a tool for state oppression that has the effect of intimidating the faqih.

          In this connection, one issue which would seem self-evident and a matter of common sense is the permissibility of zakat payment in cash rather than in kind, though in the view of faqih scholars the rule is that payment in kind is obligatory. However, I personally believe that this rule was originally designed to protect people from any potential injustice on the part of the state, which might otherwise force people to pay their alms in cash, gold or silver when they would prefer to pay them in kind (in grain in the case of the farmer, or livestock in the case of the stock-breeder etc.). After all, as far as the state is concerned it is easier to deal in cash rather than in kind, because it is lighter to carry and more flexible in the uses to which it can be put.

          Malik narrates an account of a man who forced people to pay their zakat in dirhams and said: “I hope there will be recompense if they have paid the value required of them appropriately.”²²

          There are also a number of different fiqh opinions on the question of whether, if a tyrant forces his subjects to pay zakat and they pay it to him, they have to pay it again to its lawful recipients.

          On this issue Abu Sa‘id al Kadmi says the predominant view is that there is “no guarantee for subjects in that [matter],”²³ while al ‘Awtabi maintains that if a person liable to pay zakat pays it to an unjust person so that he can distribute it and he distributes it to the poor in his presence, he will “receive recompense for it”²⁴. This means that the question of a person liable for zakat being forced to pay something that is not in the “compulsory category” is a de facto possibility which is recognized by fiqh scholars. Consequently, they have sought to preclude that eventuality in order to minimise any potential distress it might cause and safeguard the social fabric.

          It is interesting to note that over the centuries the faqih has always enjoyed pride of place in the “scholarly hierarchy” - above his contemporaries in the fields of letters, philosophy, theology and medicine. This intriguing fact deserves to be studied as a separate subject in its own right.

_____________________________

* Scholar from the Sultanate of Oman.

¹ Al Umm, Dar al Fikr, Beirut, 1422 AH (2002 CE), Part 2, p. 65.

² Taha Jabir al ‘Alwani: Usul al Fiqh al islami, International Institute of Islamic Thought, 2^nd impression, 1415 AH (1995 CE), p. 77.

³ Muslim No. 989.

⁴ Abu Dawud No. 1589.

⁵ See: AI Fikr al Usuli wa Ishkaliyyat al Sultah al ‘llmiyyah fi’I Islam, Dar al Muntakhab al ‘Arabi, Al Mu’assasah al Jami ‘iyyah li’l Dirasat wa’l Nashr, Beirut, 1^st impression, 1415 AH (l994 CE), p. 22.

⁶ Abu Dawud No.1581.

⁷ Al Daraqutni: Kitub alZakat, Bab al Kharas (27).

⁸ Abu Dawud, No. 1567.

⁹ Sahih Muslim Bisharh al Nawawi: Dar Ihya’ alTurath al ‘Arabi, Beirut, 3^rd impression, vol. 4, part 7, p. 163.

¹⁰ Al Amwal, edited with commentary by Mohammed Khalil Harras, Dar al Fikr, Beirut, 1408 AH (1988 CE), p.681.

¹¹ Ibid. p. 684.

¹² Ibid. p. 629.

¹³ Al Fikr al Usuli wa Ishkaliyyat al Sultah al ‘ilmiyyah fi’l Islam, p. 171.

¹⁴ Al Umm, vol. 2, p. 77.

¹⁵ Al Rashidi: Al Imam Abu ‘Ubaidah Muslim bin Abi Karimah wa Fiqhuh, Matabi‘ al Wafa’, al Mansurah,1415 AH (1992 CE), p. 515.

¹⁶ Al Bukhari, No. 1469.

¹⁷ See al Mawsili: Al Ikhtiyar, with commentary by Khalid ‘Abdulrahman al ‘Akk, Dar al Ma‘rifah, Beirut, 2^nd impression, 1402 AH (2002 CE), part bl, p. 136.

¹⁸ Al Kindi. Revised by Abdul Hafidh Shalabi, Ministry of National Heritage and Culture, Sultanate of Oman, 1402 AH (1982 CE), part 19, p. 253.

¹⁹ Al Mudawwanah al Kubra. Text verified by Mohammed Mohammed Tamir, Maktabat al thaqafah al Diniyyah, Cairo, 1425AH (2004 CE), paqrt 1, p. 344.

²⁰ Al Ashqar: Al Ilzam bi’l Zakat fi’l Dhahir wa’l Batin, part of a series of studies on present-day zakat issues, Dar al Nafa’is. Jordan, 1^st impression, 1418 AH.

²¹ Ilzamiyyat al Zakat wa Tatbiqiha min Wali al ‘Amr, part of a series of papers presented at the First Symposium on Contemporary Zakat Issues, p. 155.

²² Al Mudawwanah al Kubra, part 1, p. 396.

²³ Al Kindi: Bayan alShar‘, part 19, p.269.

²⁴ Al Dhiya’, Ministry of National Heritage and Culture, Sultanate of Oman, 1st impression, 1411 AH (1991 CE), part 6, p. 41.

Reference:              

Fiqh (Islamic Jurisprudence) and Its Heritage through the Eyes of the Faqih (Scholar of Jurisprudence) and the Politician, by: Khalid bin Said al Mashrafi, Al-Tafahom Magazine, issue number 11/2019.