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Which Law?

2016-03-15
March 15, 2016

 

Laboured mutations

 

When we were young, the children with scientific tendencies among us used to receive one or the other “young chemist kit” as a gift.

The same kind of experimental amateurism is what we witness when Modernism, in both its ‘Abduh/Ikhwānī and Salafi declensions, tampers destructively with the entrenched wisdom of classical fiqh.

Life-damaging conflagrations soon follow in the wake of the exciting fireworks of childhood experiments.

A new recasting of Goethe’s timeless fable The Sorcerer’s Apprentice (aptly set to music by Paul Dukas, before being cheapened by the ubiquitous Disney version) may be discerned in Yūsuf al-Qardāwī’s deconstruction of the Law in his book Fiqh of Zakāt.

Al-Majjājī, that excellent contemporary Mālikī jurist, investigates and reveals its many errors and horrors.

A particularly mouth-watering section is the one on the method of levying the compulsory Islamic tax on income from employment and freelance professions. As in the section on revenues from investment properties (hotels, factories, etc.), al-Qardāwī’s creativity is in top form here.

We reproduce hereunder the main parts thereof.

Our interventions are distinguished from al-Majjājī’s text by the use of italics and a smaller font.

 

p. 487: Concerning zakāt on income from employment or freelance professions (chapter nine)

 

“When framing the juristic discourse on this type of income, Shaykh (al-Qardāwī) said it was “newly acquired property”.

That is correct, yet there is no need for such theoretical framework, since the assets of wealth mentioned under the discourse on benefits (fawā’id) in the books of the earlier jurists are not exhaustive but merely illustrative of the common feature between them and whatever actualizes the meaning of benefit, i.e. every asset of wealth the genus whereof is taxable, that has fallen under a person’s ownership without being the offspring of breeding livestock, profit from trade or growth in cultivated crops.  

Wool and milk, for instance, are not “benefits”, since they do not belong to the genus of taxable wealth. If a person then sells them for gold or silver coins, the price fetched by their sale is a benefit. The same holds true of the prices of all the other sale items that, at source, are not set aside for trade, as in the case of someone who sells his house or land or house furniture or car or working tool. If he were to sell livestock after he has discharged the zakāt on it, or crops or fruits after paying the tax on them, the price fetched by their sale is a benefit, since its genus (= money) is taxable, and is neither trade profit nor the offspring of cattle.

The same thing should be said about leasing houses, other buildings and plots of land, ships and built boats in general, mounts and the rest of animals, as well as the fees paid to human beings for work they perform to others, regardless of whether it is intellectual or manual work, and regardless of whether they work with their hands or through some professional tools. All of these are termed benefits in the special terminology employed in the juristic section on zakāt. To term them “civil servants’ salaries” or “labourers’ wages” or “income from freelance professionals” does not add anything new at all to their meaning.

There is thus no meaning to the author’s separate theoretical framework.”

 

Now we witness al-Qardāwī plunging into the typical modernist manipulation of the Law, a textbook example of which, concerning inheritance of a Muslim from a kāfir, was previously analysed by us in: http://www.theislamiccommunity.com/article/pastel_islam_

Al-Qardāwī begins with a foregone conclusion, and then seeks to rationalize it. He selects the anomalous view of a few Predecessors, makes instrumental and biased use of existing hadith-analysis, ignores the entrenched view of generations of inspired savants, and then haughtily elevates his incoherent juristic choice to the status of the one “best supported by evidence”.

 

“Is the lapse of a full lunar year stipulated, when levying zakāt on newly acquired property?

Shaykh (al-Qardāwī) mentioned, among those who did not stipulate it, but rather enjoined its discharge immediately upon taking possession of the benefit, Ibn ‘Abbās, Ibn Mas`ūd and Mu`āwiyah. He wrote: “This view has been related from ‘Umar b. ‘Abdi’l-‘Azīz, al-Hasan, az-Zuhrī and al-Awzā`ī.”

The author then favoured this view after ascribing weakness to the reports handed down on the prescription of the lapse of a full lunar year.”

 

At this point, al-Majjājī sets out and examines in some detail the four Prophetic reports transmitted on this issue by, respectively, ‘Alī (in Sunan Abī Dāwud), Ibn ‘Umar (in Sunan ad-Dāraqutnī), Anas (again in Sunan ad-Dāraqutnī), and Ā’ishah (in the Sunan collections of Ibn Mājah, ad-Dāraqutnī and al-Bayhaqī).

After ascribing weakness to those ahādīth, al-Qardāwī mentioned the existence of disagreement among the Companions on this issue. He then drew, from that disagreement, the proof that no entrenched textual authority existed on the mas’alah, that taking by neither view was worthier than the other, and that juristic proof was what clarified which of the two was more deserving to be acted upon.

Al-Majjājī explained that, although it was true that the ahādīth traced back to the Prophet, Sallallāhu ‘alayhi wa-Sallam, on this issue were weak, some of the huffāz of hadith, including Ibn Hajar, had declared the hādīth transmitted by ‘Alī to be sound.

In addition, the ahādīth stopping short of the Prophet, Sallallāhu ‘alayhi wa-Sallam, were established from a number of Companions. Al-Bayhaqī said in As-Sunan al-Kubrā: “Reliance in that regard – i.e. stipulating the lapse of a lunar year when taxing wealth – is on the sound reports transmitted on it from Abū Bakr as-Siddīq, may Allah be pleased with him, ‘Uthmān b. ‘Affān, ‘Abdullāh b. ‘Umar and others as well, may Allah be pleased with all of them.

The reports from Abū Bakr and Ibn ‘Umar are related in Al-Muwatta’.

The first one was related from Muhammad b. ‘Uqbah, az-Zubayr’s freed slave. It is to the effect that he had asked al-Qāsim b. Muhammad about a slave of his, busy buying his emancipation in instalments, from whom Muhammad b. ‘Uqbah had taken a large advance amount of money, besides the stipulated instalment, for him to expedite his own emancipation, whether he was required to pay zakāt on that money. Al-Qāsim replied, ‘Abū Bakr as-Siddīq did not use to take any zakāt from any monetary wealth until a lunar year had elapsed over it.’

Accordingly, al-Qardāwī ignored textual authorities endowed with weight and cogency, and, as we shall see shortly hereunder, he ignored the consolidated practice (‘amal), marginalizing what top Companions were settled upon, on the way to rationalizing his creative ijtihād.

Let us rejoin al-Majjājī, immediately after mentioning the report from Abū Bakr in Al-Muwatta’:

 

“This, however, does not move the author one inch, so long as he believes in the soundness of what has been related from Ibn ‘Abbās, Ibn Mas`ūd and Mu`āwiyah, contrary to what has been soundly transmitted from the Companions listed by al-Bayhaqī.

However, the first view (= the necessary lapse of a lunar year) is that on which the inherited practice is settled in al-Madīnah. Mālik in fact said in Al-Muwatta’:

“The matter agreed upon among us (here in al-Madīnah), as regards hiring out slaves [1], making them work for someone for a fixed amount [2], rent from property, and the sums received from a slave buying his freedom by instalments, is that no zakāt is due on any of it, whether great or small, until one lunar year elapses from the day on which the owner has taken possession of it.”

In another passage, he said: “The Sunnah with us is that no zakāt is due on an heir in respect of the money he has inherited before the lapse of one full lunar year.”

What Mālik related from the People of al-Madīnah is indeed the view held by the bulk of knowledgeable people, to such an extent that the other view (= payment of the tax immediately upon receipt of possession) is almost an isolated one compared to it. Ibn ‘Abdi’l-Barr said in Al-Istidhkār, when commenting on Mālik’s statement in the latter passage: “This is a scholarly consensus (ijmā`) by the large group of Muslim jurists. The hadith on this issue, transmitted from ‘Alī and Ibn ‘Umar, is that no zakāt is levied on property until a lunar year has elapsed over it. There is no disagreement on it within the large group of savants, except what has been handed down from Ibn ‘Abbās and Mu`āwiyah, as mentioned at the start of this chapter. None of the jurists relied on such dissenting view or paid attention to it” [until, that is, modernist amateurs appeared on the scene, sponsored by corrupt rulers].

Ibn ‘Abdi’l-Barr said elsewhere in the same book:

“I know of no jurist who adopted the view of Mu`āwiyah and Ibn ‘Abbās, to the effect that the lapse of a lunar year should be discarded as a requirement, save for a single mas’alah transmitted from al-Awzā`ī, which contradicts the source-position of his methodology” [Al-Majjājī goes on to particularize this lone exception].

Ibn ‘Abdi’l-Barr is one of the imams and huffāz (of hadith), with deep familiarity of the juristic approaches pursued by Companions and others. The fact that he makes no mention of Ibn Mas`ūd [unlike Ibn ‘Abbās and Mu`āwiyah] among those who advocated the discarding of the lunar year requirement, is proof of the fact that his inclusion in that list was not proven to him, or that his position was interpreted as referring to what Abū Bakr and ‘Umar used to do, namely, taking zakat from an allowance because of the taxable amount that had accrued before the allowance, but not from future allowances [3]. Likewise it has also been interpreted by Abū ‘Ubayd al-Qāsim b. Sallām in Al-Amwāl. Further corroboration is found in the fact that such a view was not transmitted from any one of Ibn Mas`ūd’s famous students in al-Kūfah – notwithstanding their large number –, such as ‘Alqamah b. Qays an-Nakha`ī, al-Aswad b. Yazīd an-Nakha`ī, Qays b. as-Sakan, Wazir b. Hubaysh and ‘Ubaydah as-Salmānī.

Ibn Qudāmah al-Maqdisī mentioned the view of those Companions named by al-Qardāwī, in favour of hastening payment of the zakāt on newly acquired property, and then commented: “The bulk of the savants hold the contrary view. They include Abū Bakr, ‘Umar, ‘Uthmān and ‘Alī, may Allah be pleased with them.” He then quoted Ibn ‘Abdi’l-Barr’s abovementioned speech on the anomaly of this view, and the lack of savants’ reliance on it.”

 

In their juristic prestidigitation, modernists treat the waves of classical savants in a dismissive manner, while lavishing punctilious care on scholars from deviant sects!

 

“Moreover, the author (= al-Qardāwī), may Allah show kindness to him and to us,  quoted people’s approach to the timing of the discharge of zakāt on newly acquired property, second-hand, from Ibn Hazm’s Al-Muhallā. I do not know what led him to swerve away from their own books and from quotations from the direct sources they themselves had written, although they lay within his easy reach! Wish that he had honoured them the way he had honoured the books of the Zaydiyyah, which none before him who had quoted legal issues on which the jurists of the major centres had disagreed inter se, such as Ibn al-Mundhir [4], al-Marwazī [in Ikhtilāf al-Fuqahā’]Ibn ‘Abdi’l-Barr and Ibn Qudāmah [5], had paid attention to.

Since Ibn Hazm omitted mention of Ahmad’s position, the author slavishly followed him in that and did not set out any view ascribed to him on the issue, despite the ease with which he could have remedied Ibn Hazm’s shortcoming for the sake of completeness.”

 

Given the premises, we now inevitably descend into farce.

 

The view selected by al-Qardāwī on this issue:

His abovementioned statements on it ready us to probe his stance even before he explicitly sets it out, viz. the stipulation that zakāt is payable on newly acquired property the moment possession of it is taken, similarly to revenues from buildings, hotels and factories, without waiting for the lapse of a lunar year.

He wrote (on p. 505):

“What I opt for is that, in respect of newly acquired property, such as a civil servant’s salary, a labourer’s wage, the income earned by a doctor, an engineer, a lawyer, or other freelance professionals, similarly to the revenues accruing from capital invested in other than trade, e.g. cars, ships, airplanes, printing presses, hotels, entertainment centres and their like, it is not stipulated, for zakāt to be obligatorily levied on it, that a full lunar year should elapse, since the tax on them is paid at once upon taking possession of it.”

Based on this: If a civil servant or an employee receives every month a salary amounting to the nisāb, he must pay zakāt every month. If he is a manufacturer whose manufacturing concern weekly yields to him the equivalent of the nisāb or even more, he must pay zakāt every week. Conversely, if he is a trader who weekly earns from his business the like of what such a manufacturer is earning, he does not have to pay any zakāt on that profit unless a lunar year has elapsed over the original capital.

See for yourself how absurdly strange these inescapable corollaries are!!”.

 

Having reached this juncture, al-Majjājī examines in great detail the ten grounds on which al-Qardāwī built his far-fetched view, and comprehensively disintegrates those foundations, as frail as a spider’s web, in more than 10 pages we cannot unfortunately incorporate here.

 

 

p. 513: Method of determining the nisāb of income from salaried work or freelance professions

 

“The author (= Yūsuf al-Qardāwī) mentioned (Muhammad) al-Ghazālī’s [1] aforesaid view on calculating the nisāb of income from salaried work or freelance professions by using as yardstick the nisāb of crops, then added:

“Even worthier than that is for the nisāb of currency, defined by us as 85 grams of gold, to be the applicable yardstick here.”

 

You are quite aware, reader, that the value of the nisāb of crops varies in accordance with the specific crop: the nisāb of wheat is not the same as the nisāb of rice, and so on.

Which variety is then going to be used as reference for calculating the nisāb of money earned through salaries and other remunerations for work done? [2].

 

As for the author’s own choice, it is as if conceives the mas’alah to be a novel topic differing as such from what he had wrote concerning the nisāb of currency (at p. 246) [3]. It is, in other words, as if money in the form of currency, once it becomes part of a person’s property other than by earning it, is subject to a nisāb of 200 silver coins and 20 gold coins, whereas, once he has come to own it by earning it, the nisāb thereof must be arrived at through a process of ijtihād, at the end of which it might coincide with or differ from the former.

This, I swear, is something odd.

Even odder than it is the fact that, at the end of his analysis about the nisāb of modern currency, he came up with the view that it should be calculated as the value of five camels or half the value of forty cattle (p. 269), whereas in this other chapter of the book, he calculated it as the equivalent in value of the nisāb of gold!

 

Just ponder, reader, the first assets of wealth a person comes to own, regardless of their different types: you will find that all of them become his property through acquisition, be it by inheritance, donation, dowry, or exchange for a usufruct, as is the case of civil servants’ salaries or labourers’ wages.

The root of all the assets of wealth you become the owner of is some acquired property, monetary or otherwise. The fact they might remain in your ownership for several years does not change their ruling, so long as it produces no change in their essence.

Accordingly, it befits the nisāb of all of them without exception to be one and only, applicable as such to recent acquisitions and long-held possessions alike.

The only time a contingent asset, which does not grow out of a taxable source-asset, deserves a separate ruling, is under the section conventionally termed “zakat of newly acquired property”. That is so because it needs clarification as to whether it should be added or not to the same genus of wealth a person already owns when calculating the nisāb and the lapse of a full lunar year, and whether or not parts thereof should be added to one another, i.e. if a person acquires on a day 10 silver coins, and after one month acquires another 10 silver coins, without having spent the former yet, does he add the former to the latter and begin to calculate the full lunar year from that point?

If the first lot he has acquired in itself reaches the nisāb, does he add the second lot to it, so that there is one unified judgment applicable to the two of them, or not?

This (and only this) has resulted in some juristic rulings being specifically applied to newly acquired property, which is what made the author presume that it was a separate asset of wealth as regards all the rulings pertaining to it.”

 

p. 514: Method of determining the nisāb of property acquired from salaried work, freelance professions and their like

 

Here, al-Qardāwī mentioned two methodological approaches to calculation.

The first one is to assess whether the nisāb has been reached by any monetary amount taken into one’s possession on its own: if one’s fixed remunerations reach the nisāb, zakat is obligatorily levied on them, otherwise it is not.

This first approach is not free from intrinsic weakness and incoherence, as evidenced by al-Majjājī, but worse still is on the way with the second such approach proposed by al-Qardāwī.

 

The second approach: Adding up income or property acquired at various intervals during a proximate time span [as opposed to too spaced out a time span].

 

The author did not clarify the ultimate extent of this proximate time span. How should it be calculated, so that the owner of the wealth might be able to know which fixed remunerations he should include in it? Does he add up sums that reach the nisāb, or below the nisāb or in excess thereof?

His speech in this regard is unclear, even if gives us the impression that what he takes into account is the annual remuneration. If the annual remuneration reaches the nisāb, every partial remuneration he actually receives, whether it is a little or a lot, is taxed by him upon receiving it into his possession, because the State calculates salaries on an annual basis, and then apportions such annual amount into monthly batches. It is, therefore, as if the whole annual remuneration is owned by the person since the day it is thus stipulated by the State.

This calculation, however, is only engaged in by the State in order to finalize its annual budget, and not for the purpose of transferring ownership thereof to the civil servants. Proof of it is the fact that if the civil servant were to interrupt work during the year, his salary for the remainder thereof would likewise come to an end. Had it been earmarked for him (= transferred into his ownership), he would have kept on receiving it till the end of the year.

Another objection that might be raised against this approach is that it only applies to salaried employees, such as civil servants and labourers. As for freelance professionals and their like, their earnings are not calculated annually, so the ruling pertaining to them is left shrouded in obscurity by this approach.”

 

p. 519: The obligatory amount of tax levied on earnings from work and the like thereof

 

“The author divided it into two types.

§  He termed the first type “income from sheer capital or a mixture of capital and work”, such as revenues from buildings, ships and boats, and factories;

§  He termed the second type “income generated by sheer work”, such as salaries and fees.

In respect of the former, he stipulated the payment as tax of 1/10 of net income (quite absurdly: al-Majjājī scholarly debunks this further ideological improvisation in another passage), echoing in that connection what (Muhammad) al-Ghazālī had solicited before him, while simultaneously approving the view advocated on this issue by (Muhammad) Abū Zahrah and his two colleagues, who had enjoined payment of 1/10 of net income, provided it could be calculated, or else half of 1/10 of gross income.

As for income from work, the taxable amount would be 2.5%.

 

In this subdivision, there is a discarding of textual authority (= Prophetic hadīth) [4], and the application of analogical reasoning in lieu of it.

In fact, with regard to the person who, say, leases his house for one year for 200 silver coins, then takes possession of the stipulated rental, the Prophet, Sallallāhu ‘alayhi wa-Sallam, instructs him to pay out 2.5%, by virtue of his statement: “On silver, when it reaches 5 awāqī, there is a tax of 2.5%.” The bulk of savants are of the view that he is obliged to pay such amount if that rental has been in his hands for a whole lunar year, never below the nisāb, or, if it dipped below it during that lunar year, it reached it again at the end thereof according to the Kufan jurists.

As for these people arbitrarily tampering with the Law, they treat this scenario analogically to the scenario of an owner of crops or fruits, so they instruct him to pay out 1/10 or half of that, and they oblige him to pay it at once (= without the lapse of one lunar year).

According to the view of the author, which he patched up from what has been related from some Followers, if a person has his own habitual yearly span at the end of which he pays the tax on his property, he delays paying the zakat on it if he is unwilling to pay it at once; otherwise, he expedites payment thereof.

Reflect, reader, over the lengths of anomaly and deviation from what people had unanimously concurred upon in previous epochs!!”.

 

All that is left for us to do is to refer our readers to a fascinating contemporary view.

Grown out of the visionary brilliance of the Murābitūn movement, those most fertile anarchists of our age, it postulates that, since wealth is generated by free traders and not by employed people, zakāt is truly the domain of the former and not the latter.

The ideological emphasis is one we fully subscribe to: societies of note were founded on the commercial initiative of free entrepreneurs, a fact that, regrettably, most Caucasian Muslims seem oblivious to in their everyday existence. Whatever encourages that free spirit to be instilled in Western Muslims is worth applause.

Legally, however, this bold view is of course untenable.

This teaches us, once more, that the two seas of the Law (realism) and what is more impalpable, such as social transformation theories, are to be kept neatly separated, since their mutual encroachment is zulm; and that every brand of factionalism, however polished or inspiring, seeks an enforced departure from classical fiqh, whether the sponsor is a “lā madhhab” modernist line-up or a formation that theorizes the revival of madhhab-led jurisprudence.

 

 



[1] The modernist, not the noble Proof of Islam.

[2] Muhammad al-Ghazālī’s absurd modernist ruling is thus thrown out as groundless.

[3] All the page references are to the Arabic edition of al-Qardāwī’s Fiqh az-Zakāt.

[4] Quite ironically, of course, from the self-styled champions of “Kitāb wa-Sunnah”.

 



[1] Slaves being trade property, a person would lease their services to another person (at the latter’s house, business premises, plot of land etc.) and receive a fee in exchange for that.

[2] That is the meaning of the phrase “kharājihim” in the text: The owner of slaves would in fact set a specific fee to them, and say, ‘Go, work and bring me this amount, and you keep the rest’ (similarly to what beggars are told by their masters). Cf.: http://shkhudheir.com/scientific-lesson/544487672. ‘A’isha Bewley and Ya`qub Johnson chose to skip that phrase in their translation of the Muwatta’, probably on account of its objective difficulty. Laudable as their pioneering effort was, that translation is in need of an improved revision, especially in the sections on mu`āmalāt, where many shortcomings require remedial action.

[3] “Al-Qāsim b. Muhammad continued, “When Abū Bakr gave men their allowances he would ask them, ‘Do you have any property on which zakāt is due?’. If they said, ‘Yes,’ he would take the zakāt on that property out of their allowances. If they said, ‘No,’ he would hand over their allowances to them without deducting anything from them” (Al-Muwatta’, Book of Zakāt, 17.2.4).

[4] In Al-Ijmā`.

[5] In Al-Mughnī.

 



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