zakāt in imāmī shī'ī jurisprudence, from the tenth to the sixteenth century a.d

8/3/2019 Zakt in Imm Sh' Jurisprudence, from the Tenth to the Sixteenth Century A.D

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Zakt in Imm Sh' Jurisprudence, from the Tenth to the Sixteenth Century A.D.

Author(s): Norman CalderReviewed work(s):Source: Bulletin of the School of Oriental and African Studies, University of London, Vol. 44,No. 3 (1981), pp. 468-480Published by: Cambridge University Press on behalf of School of Oriental and African StudiesStable URL: http://www.jstor.org/stable/616609 .

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ZAKAT IN IMAMISHI'IJURISPRUDENCE, FROM THETENTH TO THE SIXTEENTHCENTURY A.D.

By NORMANCALDERMawardi said of zakdt that it was paid tahratanli-ahliha ma'iinatan li-ahlal-sahman, as a purification for the donor and a support for the recipient.1 Ithas thus a dual aspect. As a social tax it provides for the transfer of wealthfrom certain productive classes of society to certain poor or non-productiveclasses. As a religious duty it is of essentially the same type as salat, hajj**,tc.,afarida 'ala 1-'ayn. Like these it is a ritual whose correctperformanceinvolves

an attention to precise details of quantity (nasab), timing (al-hawl), and in-tention (niyya) which may be irrelevant or even inimical to the optimumfulfilment of the social aim.The zakit donors were defined as those possessed of productive wealthderived from pastoralism, agriculture or trade.2 The recipients were dividedinto eight categories, five of which may be subsumedunder the headings of thepoor, the needy or those under particular difficulties; the other three were thetax-collecting and military classes (al-'dmiiin, f" sabil alldh, al-mu'allafa).Sunni jurists in general acknowledgedthat defacto rulers had a certain right tocollect and distribute the zakat, 'because they (the wuldt) are the trustees(umand')over the collection of zakdt romthe donors on behalf of the recipients '.3Shafi'I (d. 204/820), however, perceived that the political rights of the wulatmight conflict with the individual need for religious reward. For the latter itwas necessary that the zakdt be paid at a particular time (al-hawl): Shdfi'Iindicated that if the tax-collector did not arrive at the appropriate momentthe donor should distribute the zakT himself.4 Likewise with regard to niyyaShdfi'i considered it preferable (wa-ahabbu layya) that the individual shouldundertake his own distribution in order to be sure about the discharge of hisreligious duty (fa-yakiin 'ald yaqin min add'ihd).5 Therewas thus some tensionbetween the political rights of the rulerand the religious needs of the individualdonor.The ruler was entitled to use one part of the zakat collected--that of the'amilfin-to finance his tax-collecting bureaucracy: wa-yu'tda'wan idarat wali1-sadaqa,t may be given to the aides in the administrationof the wal! 1-sadaqa.6There was, however, for Shdfi'i a possibility, when the donor distributed thezaklt directly, that the share of the 'amil might be saqit (lapsed).7 Nevertheless,on the whole, for Shafi'ias for later Sunni jurists the system of religioustaxationimplied the existence of a government who collected and distributed. Of whatwas collected the government might legitimately use three out of eight parts forbureaucratic and military purposes. Shdfi'i acknowledged, even stressed, thatthe individual need for salvation could pre-empt the right of the ruler tocollect and distribute; and he was familiar with the possibility and theterminology of suqlat. In his works juristic rules are set out as ideals with

1MEwardi, Al-Ablakmal-Sul.tniyya, ed. Enger, Bonn, 1853, 195; cf. also N. P. Aghnides,Mohammedantheories of finance, New York, 1916, p. 323, n. 1.2 See, for further details, mostly common to Sunnis and Shi'is, Aghnides, op. cit., 203-95.3 Muhammad ibn Idris al-ShEfi'i,Kitib al-Umm, Cairo, 1388, I, 70.*ibid., 15.5 ibid., 19.6 ibid., 61.7ibid., 68; cf. Abfi Yiisuf, Kiteb al-Kharaj, Cairo, 1352, 81.


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ZAKAT IN IMAMISHi'i JURISPRUDENCE 469little referenceto the actual practice of the administration; later Sunni writers,it will be shown, manifested a rather different concern to provide the greatestdegree of legitimacy for the actual practice of defacto powers.Works of Imimi fiqh emerged only in the second half of the tenth centuryA.D. and first achieved a high degree of technical excellence in the writings ofMuh1ammadbn Hasan al-Tfisi: 8 first, concisely, in his Kitab al-Nihdya andlater, expansively, in his Kitab al-Mabsfit. Defining the Imami attitude tozakat he declared that in the absence of the imdm or his appointee (mannasabahu1-imim) the shares of the su'dt/'amilfin, the mu'allafa andjihid weresdqit.9 The term man nasabahu 1-imdmrefers presumably to a contemporaryof the imdm, certainly in this context to an entity deemed absent. During theGhayba, then, the Imamis emphasized the dissociation of the sacred from theprofane by denying precisely those shares which would have served theadministrative and military needs of the government. They were enabledthereby to affirm their independence of the political institution and to stressthe religious rather than the political aspects of zakit. Later, in his

Mabst.,ilsi confirmed that the shares of the mu'allafa and the 'amil were saqit, but,by providing an extended definition of sabil allah, he was enabled to affirmitscontemporary operancy.10 Sabil allah was there defined as including thebuilding of mosques, the upkeep of bridges and other masalih."l The scholarlyclass thus had a claim on zakdt only insofar as religious buildings wereconcerned.Ja'far ibn Sa'id al-Muhaqqiqal-HIilliconfirmedthat the shares of the 'dmiland the mu'allafa were saqit, accepted the extended definition of sabil allahand added to it the consideration that jihad might be possible even in theabsence of the imam.12 asan ibn Yiisuf ibn al-Mutahhar al-'Alldma, ageneration later, not only accepted the possibility but inferred from it that theshare of the mu'allafa, too, could not continue saqit.:: J.~- .

dI .l lj9il e~r. i Jl .rP j3-.- -.ji Uit,,1.13The share of the 'dmil, however,would appear to have been left as Tilsi had defined it: 'the share of themnu'allafa,he sd'? and the ghazi are saqit during the Ghayba-except whenthere is need ofjihed '.14 It is difficultto see how the exceptive phrasecan have

, The major ImAmifuqahi' in the period under discussion, and those of their works whichconstitute the main sources for the present study are: M. ibnH.asan al-Tfisi (d. 460/1067):Kitab al-Nihdya, Beirut, 1970, Kitab al-Mabs?it,Persia, 1271, n.p. (references to Tilsi, Mabsi.t,aklt, 7 indicate the seventh page of the section on zaklt); M. ibn Ahmad ibn Idris al-Hilli(d. 598/1202): Kitab Sard'ir al-Isl8m, Persia, 1270/1854, n.p. (references given to BritishMuseum edition where the incipit is p. 2); Ja'far ibn Hasan al-Muhaqqiq

al-.Hilli(d. 676/1277) :Shard'i' al-Islim, 4 vols., Najaf, 1389/1969, Al-Mukhtasar al-Ndfi', Cairo, 1376 (Qum reprint);Hasan ibn Yiisuf ibn al-Mutahhar al-Hilli (d. 726/1325): Kitab Mukhtalif al-Shi'a, 4 vols. in 1,Persia, 1324/1906, Kitab Qawd'id al-Ahkiim, in Karaki, Jami' al-Maqdsid (see below), KitabTabrir al-Ahkdm, 2 vols., Persia, 1314/1896; Shams al-Din ibn Makki al-Shahid al-Awwal(d. 786/1384-5): Al-Lum'at al-Dimashqiyya, in Shahid II, Rawda (see below); 'Ali ibn Husaynibn 'Abd al-'Ali al-Karaki (d. 937/1530-1 or 940/1533-4): Kitab Jami' al-Maqdsid ft sharbal-Qawd'id, 2 vols., Tehran, 1395; Zayn al-Din ibn 'Ali al-Shahid al-Thani (d. 960/1559):Masalik al-if/hdm i sharharard'i' al-Islm, 2 vols., Persia, 1310 and 1314, Al-Rawdat al-Bahiyyaft sharb al-Lum'at al-Dimashqiyya, Tabriz, 1271.9 Tilsi, Nihdya, 185. For further discussion of the term 8sqit in this kind of context, seeal-Sharif

al-Murtad., Al-Shdfi,Tehran, 1301/1884, 40-41, and Tiisi, Kitab al-Ghayba, Najaf,1385, 64; acceptance of the term s8qit in this kind of context would seem to have been firstjustified by Tilsi.1'Tfisi, Mabsz.ft, zakt, 17-18.1"An indication that Sunni juristic works were part of the juristic pool drawn upon byShi'i jurists: cf. Abil Yfisuf, op. cit., 81.12Muhaqqiq, Shard'i', I, 162. (Tilsi also acknowledged the validity of defensive jihid, butthis did not affect his discussion of zakAit.)1' 'Allma, Tabrir, 68.14 dem, Qawd'id,22.


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470 NORMAN CALDERany relevance to the sd'&; that share remains sdqit. There is none the less anelement of ambiguity about the phraseology which may have been deliberate.The ambiguity was emphasized, perhaps exploited, by Shams al-DIn ibnMakki, al-Shahid al-Awwal: ~I iL: . ~i~,jh_ L.;"l "I, during theGhayba, no sd'i and no mu'allafa except for one/those needed.15That removedthe specificity of the need (jihad) and left it an open question whether theremight not be a need for the sd'i during the Ghayba. Zayn al-Din ibn 'Alial-Shahid al-Thani was quite explicit. Commenting on the exceptive clause,ilEl li-man yuhtaj ilayhi, he states:

That is the faqih if he is able to appoint a sd'i to collect zakdt; and ifjihddis necessary during the Ghayba and ta'lif is requiredthat is permissible bymeans of the faqih or someone else (bi 1-faqihwa-ghayrihi).16By the sixteenth century the three zakdt-recipientcategories which by TilsIhad initially been declared sdqithad been re-established as operative.That change took place exegetically and without polemic. There was noovert appeal, as justification for development, to revelation or to ijmd'; therewas rather a gradualreassessment of the meaning of revelation, or of the dictaof earlier jurists. Adduction of the concept of h.ja as justificatory reflects adiffuse and general habit of juristic appeal to related concepts, e.g. darifra.7The final Imami assessment of the eight categories paralleled the Sunniassessment except in this that whereas for the Sunnis the majorexecutive agent(for organization of collection and forjihid) was the wdlTor governor, for theShi'is it was the faqih.Legal developments in this field benefited the fuqah&' n at least one otherway. Although there had been amongst Imami jurists various views as to whowas included in the categories of the fuqard' and the masdkin the opinionprevailed that these terms meant a person whose income was insufficient tocover annual expenses for himself and his family. Shahid II added to this theconsideration that if someone was incapable of earning a living because of hisendeavours in religious knowledge ('ilm din7)he might receive zakdt,even if hecould, by leaving his studies, earn a sufficiency. In the discussion of zakdtal-fitra he added that special attention was to be given to people of pre-eminence in 'ilm and zuhd: preferencewas to be given them over other degrees.Thefuqahd' thus not only finally controlled the collection and distribution ofzakit but were also major recipients.18Developments in legal theory reflect change in the aspirations of thereligiousclass. Thosein turn were affectedby historicalevents and by ideological(juristic)conditioning. The early Imami image of the sacredumma,as presentedin the Nihdya, is relatively free from concepts of military or bureaucraticorganization. Shahid II, on the other hand, perceived the community asideally possessed of a tax-collecting bureaucracy and a military force, bothunder the control of the fuqaha'.

It is certain that in Buyid times the fuqah&'already consideredthemselvesas judicial authorities, and no doubt were able within the Imdmi communityto control some part of zakit payments.19 In the following centuries, especially15Shahid I, in Rawda, 51.16Shahid II, Rawda, 51.17 See Calder, 'Judicial authority in Imimi Shi'I jurisprudence', British Society for MiddleEastern Studies Bulletin, vI, 1979, 107.18Shahid II, Rawda, 49, 51.19 cf. Calder, art. cit.; 'Abd al-Jalil al-Qazwini, Kitlib al-Naqd, ed. Muh.addith, Tehran,1331/1952, 164.


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ZAKAT N IMAMISHI'i JURISPRUDENCE 471under tolerant and favourably inclined governments (the caliph al-Nasir,Ilkhanids, Safavids) it is probable that they consolidated their hold on theirfollowers and increased their control of material wealth. That was reflected inthe increasing stress in legal works on their general authority. By the earlysixteenth century when Tahmasp promoted the creation of a formally Shi'istate, their aspirations and perceptions had been sharpened to a point wherethey presented themselves as the rightful authorities within such a state. Thejuristic theory of the Safavid period differedsignificantly from the early Buyidexpression in so far as it offered a determinate body which ought ideally tocontrol or replace the actual government, in order to implement the shari'a.The early doctrine of suqiithad probably developed as a means to avoid overtexpression of political opposition.According to Shafi'i, God had imposed on all Muslims a charge on theirwealth on behalf of other Muslims.20 Zakat in general was not to be paid tonon-Muslims.21 Just as performance of saldt was an outward symbol ofadherence to the Islamic community, so was payment of or acceptance ofzakdt. Participation in that ritual displayed membership of the community.The Imamis were concerned not with isldm as the relevant category but with7min ; that was specifiedby all writers as a necessary condition in the recipientof zakat al-mdl. Tisi suggested that in the absence of Imami recipients zakatal-fitra might be distributed to mustad'ifin in general. Muhammadibn Ahmadibn Idris objected to this view and Muhaqqiqafter initial hesitation confirmedIbn Idris's opinion. Thereafter no Imami faqikhappears to have denied thatzakdtal-mdland zakdtal-fitrawere to be paid within ddral-7mdn.22Any Imdmiwho knowingly paid zakat wrongly-that is to a non-Imami-failed to gainreward. Zaklt was a community-definingritual.23'Addla was a quality which might be required in the recipient of zakat. Itwas a quality involving manifestation of positive virtues and was the oppositeoffisq, a quality acquiredby the commission of one ormorekabd'ir,or persistentcommission of saghi'ir. To stipulate in the recipient of zaklt the quality 'addlasuggests that the community within which that ritual was carried out wasperceived as a positively virtuous community in which every individualassiduously obeyed the law. To stipulate absence of fisq permitted a broaderdefinition of community, including those who were, if not conspicuously 'ddil,yet not fdsiq. The matter became controversial at about the time of 'Allama.He stated in the Tahrir al-Ahkdm:

Tfisi and al-Sharif al-Murtadahave specified 'addla but others have rejectedthis opinion; the latter view is stronger. The others have specifiedavoidance of kaba'ir. In our opinion it is permissible to give to a fdsiq aslong as he is mu'min.24The identification of the 'others' was provided in the Mukhtalif al-Shi'a. Inthat work 'Allma cited Tifsi and several of his contemporaries as specifying

20Shfi'I, Umm, I, 70.21 For both Sunnis and Shi'is there was much discussion about whether the mu'allafa mightor might not be non-Muslim. See e.g. Shifi'i, Umm, 61 and 72-3: the different opinions thereexpressed indicate the composite nature of the Umm; see also Tfisi, Mabsiit, zakat, 17; note thatShifi'i is cited as source of this discussion; his opinion thereafter became part of Imimi ikhtildf;cf. note 11 above.22 For this term see A. K. S. Lambton, 'A nineteenth century view of jihad ', SI, xxxII,1970, 182.23 See Tiisi, Nihdya, 185, 192; Mabsi4t,zakat, 16; Ibn Idris, Sard'ir, 106, 109; Muhaqqiq,.Muckhtasar,59.24 'Allima, Tabrfr, 69.

VOL. XLIV. PART 3. 33


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472 NORMANALDERsome variant of the root ' d 1. Al-Shaykh al-Mufid (d. 413/1022) and al-Sharifal-Murtacda d. 436/1044) both demanded positive virtues: siy na, nazdha,taqi, 'afif. According to 'Allama, Ibn Idris did not specify 'addla. But thatwas misreading or misrepresentationfor Ibn Idris had in fact demanded 'addlaaw hukmuhu. The only writers that 'Alldma finally adduced in favour of hisopinion were 'Ali ibn Bhbiiya and his son al-Sadiiq, of the generation prior toT-isi. Even there the evidence was negative: they did not specify 'addla,butnor did they specify the absence of this quality: it was not for them an issue.In the face of an immense weight of tradition 'Allamachose to deny that 'adilawas a condition required in the recipient of zakdt. Avoidance of kabd'irwasnecessary but not absence offisq.25The point was obviously thought important, and the law was obviouslyuncertain and susceptible to modification. That modification was achievedagain not by appeal to revelation or ijmd',ratherby asserting (unconvincingly ?)the absence of ij3m' and by appeal to the dicta of earlier jurists. 'Allma forreasons which are not immediately apparent wished to deny that 'addla wasa condition for receiving zakat. To that end he searched the sources forjustification. It is manifest that his opinion was not forced upon him by theoverwhelming evidence of acceptable usjil.Shahid II also treated the question of 'addlaas a contentious issue. In theMasalik al-Ifhdm he put forward a novel argument. All the Imimi fuqahdi'accepted that children of mu'minin may be given zakdt to the exclusion ofchildren of kuffdr. Shahid II noted that children may not possess the qualitiesof either 'adl orfisq. If they do not possess 'adl they should not receive zak~t.But everyone agrees they should receive zakat. Therefore 'adl cannot be acondition.26 The logic is fair enough but the reader is not convinced that hewas led to his opinion by the logic, rather his opinion requiredjustification.Shahid II's commentary on the Lum'a (of Shahid I) apropos of 'addlamaybe given in abbreviated form as illustrative of a manner of juridical argument.

[Shahid I said] 'addlais to be consideredin other than the mu'allafa ...and it is said (qila) that that which is to be considered is only avoidanceof kaba'ir.[Shahid II added]: as to the mu'allafa it is because their kufr prevents'addla . ..Considerationof 'addla n the 'amil is generally agreed (mawdi'al-wifdq).As to the considerationof 'addla n the others, that is only one of variousviews, though Murtaddclaimed ijma' ...Some stipulate [only] avoidance of kab&'ir ven if the saghi'ir lead tothe designationfisq. That is because of the text (nass) which denies [zakat]to a wine-drinker...; it does not indicate a general denial tofdsiqs. Otherkabh'ir have been added [to wine-drinking] by a process of muswart(' equalization '). That, however, is a matter for consideration sincemusawat s denied and qiydsrejected by the Imdmis ... If 'addla were to beconsideredchildren would be denied zakat ...27

Shahid II like 'Allma wanted only kaba'ir to be taken into consideration asdenying the right to zackat.He argued that ijm&', hough it had been claimed,had never existed on this issue; he questioned the interpretation of a revealedtext by earlier uqahM'; and he worried about children who might have to be25 idem, Mukhtalif, i, , 11; cf. Ibn Idris, Sard'ir, 106.26 Shahid II, Masalik, I, 61.27 idem, Rawda, 50. Denial of qiyds was a well-established slogan of Im5mi jurisprudence.


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ZAKAT IN IMAMI SHI'I JURISPRUDENCE 473denied zakaIt.Commendablecare for the welfare of children and for the precisemeaning and exegesis of the sources may have been the only factors which ledhim to his conclusion; the argument, however, may also and perhaps betterbe understood as post facto justification of an opinion which emergedfor otherreasons.While the precise motivation behind 'Allama's and Shahid II's argumenta-tion cannot be discerned it may none the less be remarked that removal of'addlaas a condition broadened the scope of patronage of those who distributedzakat-the fuqahk'. Further, again, from Tilsi to Shahid II there was a changein the underlying vision of the community. Tfisi's writings implied a com-munity of believers (mu'minin), whose actions were in accord with their faith('adala), a community without a formal bureaucratic or military class.Shahid II's believers were acknowledged as participants in the communityeven if their actions did not reach the high standardsof 'addla. He stressed thegeneral authority of the fuqahd' over the bureaucratic and military classes.This view confirms the illegitimate non-shar'i nature of Safavid rule, whileproposing that most of the people within the Safavid state-insofar as theywere Shi'is-might be brought within the ambit of practical shar'i politics;or at least, in this context, they would be subject to those elements of clericalcontrol and patronage implied in the theory of zak~at.Thefuqah&'might hopewithin the community to exercise at least a part of the authority they conceivedthemselves to possess, and to make this a basis for consolidation and expansionof their practical control of affairs.

For both Sunnis and Shi'is niyya (intention) 28is an essential element in theattainment of religious reward (jaza'/1ijz'). 'Alldma stated that if a man gaveaway all his wealth and forgot niyya he gained no ijza'.29 Shafi'i explained thatsince sadaqamight be either incumbent (fard) or voluntary (tatawwu') t is notpermissible that a man gain ijz*' for distributing zakdt (the far4d)except heexpress niyya to the effect that it is such.30 Niyya thus for him distinguishedthe formal ritual of zakat from superorogatoryalms-giving. There was at leastone modificationto the requirementof niyya, namely that if the walT governor)took zakat from a person without his consent that person still gained ijzd'.Shdfi'Iwas led from there to conclude:If the walt takes from a man his zakdt,whether the man at that pointdoes or does not express niyya, whether the man is willing or otherwise,whether the wltl expresses niyya or not, it provides ij2z' for the donor;just as ijzd' is procured in the matter of distribution of zakat whether theone who distributes it is his (the donor's) wali (= agent) or the sultan.Shdfi', however, does not in hisfurfi' provide for an unjust sultan; the implica-tion is that the zakdtwill reach its legitimate recipients. He added that it waspreferable that the individual should undertake his own distribution so as tobe sure about the correct discharge of the duty of zaklt.31Mdwardi stated that payment of zakat (on z.hir goods)

32 to the walTmightbe either wjib or mustahabb; it was a matter ofkhtilaf.33 That was rather28See for niyya Schacht, Introduction to Islamic law, Oxford, 1964, 116-18.29 'Allma, Tahrir, 67.30 Shlfi'i, Umm, I, 18-19.31 ibid., 19.32 For the distinction between zghir and bdtingoods, see Aghnides, op. cit., 296-7.33M1wardi, op. cit., 195.


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474 NORMANALDERdifferent from Shafi'Iwho had not expressed the problem in these terms andwho had considered it preferable in any case for an individual to distributezakat himself. Mawardi acknowledged that if the ultimate distribution wasunjust (not in accord with the law) the individual should not in fact pay hiszaldato the 'dmilbut should hide it, or, if it was taken willy nilly, should repeatthe zakait n order to gain reward.34 Nawawi (d. 676/1277-8) in the Minhdjal-PT.libin

admitted that, while an individual might distribute zakdt himself orthrough his wakil, it was better for him to give the zakdt o the imrami.e. defactoruler) unless he was ja'ir.35 The commentary on this by Shirbini (d. 977/1569-70) though complex, is illuminating on the tendency of Sunni legaltheory to acknowledgethe authority even of tyrants (ja'irin).

Z.4hirgoods [may be distributed by individuals] according to the new

view, [which is derived] by qiyds from [the situation of] batingoods [whichmay at all times be distributed by individuals]; the old view is that it isincumbent to deliver [zakaton zahirgoods] to the imam or his n5'ib becauseof... (Q 9.103) ... The apparent view [arisingfrom the qur'anicverse] isthat it is incumbent. This [is the case even] if he (the imam) does notdemand it. If he does demand it, it is incumbent to surrendert to him evenif he is ja'ir, as a display of obedience ... The ja'ir imam is joined to theothers in this rule because of the prevailing of his authority and because ofhis not being dismissed forjawr. For, if they refused to surrender t to himhe would fight them, even if they claimed that they would deliver it to therecipients themselves, because of their refusal to display obedience.36Here it is unambiguously stated that it is incumbent to pay zakait o the rulereven if the ruler is ja'ir. His jawr would imply that the zakit thus paid mightnot reach its shar'i recipients, it remained valid zakat. On niyya ShirbinIacknowledgedthat it was required,for ijzd', at the moment of payment to thesultan. However, there was a variant view:

The donor [who pays the sultan without expressing niyya] gains ijzd'because custom indicates that what the sultan takes and distributes to therecipients is nothing other than incumbent zakat. This custom removesfrom this religious duty the requirementof niyya.37Here Shafi'i's original argument for the necessity of niyya-to distinguishbetween the fard and the nafila-is turned back to front. Since Shirbinideemsit incumbent to pay the zakit (fard) to the sultan (even if he is ja'ir) thatpayment becomes itself the sign of its being the zakat (farVd)nd it no longerhas to be distinguished by niyya.The various views here distinguished within Shafi'ifiqh may not representa strictly chronologicaldevelopment: they may have existed side by side forsome time in the works of other writers and other schools. They represent,however, a spectrum of possibilities whereinat one extreme the right and duty

of the individual to gain reward for himself by paying zakat is stressed whileat the other extreme this right is removed and transferred to the ruler. In theview of Shirbini the mere collection of taxes by a tyrant ruler (who might notassess them correctly or distribute them justly), constituted zakat. Neither the3' ibid., 209.35In M. ibn al-Khatib al-Shirbini, Mughni al-Muhtiij f t sharhal-Minhdj, 4 vols., Cairo, 1308,I, 402.36 ibid.37 ibid., 403.


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ZAKAT N IMAMISHI'I JURISPRUDENCE 475donor nor the sultan was required to undertake niyya. Yet the donor gainedijzJ'. This was nothing more than a bald assertion that religious reward wasgained by mere submission to the de facto power of the actual ruler. Hisdeviation from the ideal (jawr) did not precludethe fact that what was put intoeffect was a sufficient approximation to the shari'a for the members of thepolitical community to gain religiousreward. The effect was certainly to rendersacred (shar'i) the ordinary acts of the people (who paid) but it also renderedsacredthe political acts of the ruler(who exacted). The whole was an expressionof the support of the religiousclasses for the defacto power and may be thoughtto symbolize a generalSunni tendency to acknowledgeorpromotethe legitimate(shar'i)rule of the actual governors.38For the Imamis, while the im4m is present zakdt should be paid to him or hissu'it or might possibly be distributed by the donor himself. Accordingto Tfisiwhen the su'dt do not come or at a time when there is no im4m (the Ghayba) itis incumbent on the donor to undertake the distribution of zaket by himself.He should not pay zakdtto the sultin al-jawr: "Jc4, J~j ..

,1 WJI b 4-.? ClA. ,t L--.eU , _i_, ,. JL.. .,- L_- &" .. This wasqualified, however, by the acknowledgement that the donor might distributethrough his own wakil. If the individual undertook distribution without theintermediation of the imdmorthe sd'i--as must be the case duringthe Ghayba-it was thought better not to appoint a wakilbecausethe individual could be sureof his own actions but only doubtful about the actions of others. On the otherhand, it was permissible to deliver zakatto a trustworthy member of the Shi'i

fraternity and in fact it was better (afdal)to hand it over to the 'ulamA'becausethey were more knowledgeableabout the ' places' of zakdt(i.e. the appropriaterecipients)."9 There is some confusion here as it is thought 'better' not toappoint a wakil; and yet ' better ' to pay through the ' ulama. Since the imadmwas absent and the sd'i not relevant to the Ghayba, the role of the 'ulam&' anbest be explained (?) as trustworthy wakil to the donor.In spite of this there is for the Buyid period some evidence that the faqihwas already seen as to some extent replacingthe imnm. Accordingto Murtad.:

It is better to disburse zakat ... to the imdm or his khulafa' representinghim; and if that is impossible it is related that it should be disbursed totrustworthyfuqahd'.40And for Mufid:

God has made it a duty for the umma to carry zakdtto the prophet or theimdm, his khalifa, ... ; if the khalifais absent the duty is to carry it to oneof the khalifa's associates appointed by him; and if the sufard' betweenhim and his people are not available it is incumbent to carry it to thetrustworthyfuqaha'.41The incumbency there suggested by Mufid was not afterwardsaccepted. Nonethe less it was obviously consideredpreferablein Buyid times that zaklt shouldbe transferred to its recipients via thefuqaha'. It is apparent from the remarksof MurtadI and Mufid that in some undefined way they took over in this field

38 of. Calder, art. cit., and sources cited ad notes 8 and 9.39 See for all this, PTisi, Nihdya, 185; Mabai.t, zakt, 13 (ad niyya), 16, 20.40Al-Sharif al-Murtad., Jumal al-'ilm wa'l-'amal, with commentary by Ibn al-Barraj,Mashad, 1974, 269.41Cit. in 'Allma, Mulchtalif, II, 16. (This text is only available to me in this rather latecompendium.)


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476 NORMANALDERthe role of the imtimor his representatives. They were not themselves, however,referred to as representatives of the imam but rather as a kind of residualauthority which became effective precisely in the absence of representatives.Tfisi's detailedfurfi' provided for distribution either through the imdm or hissa'! (both absent or sdqit) or the wakil of the donor. Presumably the faqihacted as wakil to the donor.

Muhaqqiq, too, specified only three possible distributors: the imnm, the'dmil and the donor. In the absence of the imam, zakat was to be paid to areliable Imcmi faqiih for he was more cognisant of its 'places '.42 Since thefaq;h was neither imdmnor sa'i (that category was sdqitaccordingto Muhaqqiq)he must again have acted as wakil to the donor.43 Thefaqfh, however, even ifhis role was formally identifiable only as wakil to the donor, performed thesame functions as the sd'i who was direct appointee of the imt m. The impinge-ment of some confusion on Muhaqqiq'sthought may be illustrated by a com-parison of a particular remark in the Shard'i' al-Islam and its parallel in the(later) Mukhtasar.(Shard'i'): LL?JJI .'.:4 ;TJ1 4LU jljI rL.Y

% d 1?1(Mukhtasar)":zU.Jt_Us z4,'t.] %h -sl

U%i I'1'If the imam or the sd'i/faqih takes the zakdtthe donor's duty is fulfilledeven if the goods subsequently perish.'44Muhaqqiq was beginning to see the faqih as taking on the function of the sa'T,direct representative of the imim.'Alldmareaffirmed n his Qawd'idal-Ahkdmthe traditional view. The zakatmight be paid to the imZm (absent), the 'dmil (still sdqit?), the poor (therecipient), or a wakil. During the Ghayba it should (yustahabb)be paid to afaqth.45 Presumably again the faq~Thcted as wakil (to the donor). In theTahrir, however, 'Allama complicated the issue by specifying not four but fivemodes of distribution. It might be passed either directly to the recipient, orto the sd'7,or the wali (= imnm), or the wakil, or, and this is new, the hdkim.46It is known that during the Ghayba the ha.kim

was a faqtihacting as directappointee of the absent imZm.4 Earlier assessment had not distinguished therole of the faqth in distributing zakat from the role of a wakil to the donor.'Allama'slist at least suggests that thefaqThacted by right of his representationof the absent imim. The period was obviously one of transition. BothMuhaqqiq and 'Allama considered that zakat should be paid to the fuqahd'.There was some doubt as to in what capacity the latter undertook to receiveand distribute the zakit.

According to Shahid I:(a) It is incumbent to pay zakatto the imam on demand whether by himself or

through his sd'T.(b) It is said, likewise to the faqTh.(c) Payment to those (all of them ?) voluntarily is preferable.(d) It is said, incumbent.48That represents considerablechange. Rule (a) was traditional. Rule (b) was a

42 Mubaqqiq, Shard'i', I, 164-5. 43 cf. idem, Mukhtasar, 60.4 ibid., and Shard'i', I, 165. 45 'Allima, Qawd'id, 23.46 idem, Tabrir, 67. 47 cf. Calder, art. cit.48 Shahid I, in Rawda, 50.


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ZAKAT N IMAMISHi'i JURISPRUDENCE 477direct transferral to the faqThof authority which traditionally belonged to theimam or his sd'i. Thefaqghhad a right to demand zakdtand it was incumbentto pay him. The justification of that view was obscured in the anonymousq1/a. Rule (c) was again not novel: it had always been thought preferabletodistribute zakat through a faqih. Rule (d) suggested it might be incumbent;again, the anonymous qila. Shahid I thus produced a ruling whereby zakdtcould be a compulsory tax, administered not by the government but by thefuqah&'. Mufid, it is true, some three and a half centuries previously, hadalready stated something rather like this but that statement had provedpremature: it had not found general acceptance. Centuries of legal effort anda gradualrefinementof the concept of clericalauthority had provided a context,a structure and a justification which made Shahid I's assessment seem bothappropriate and convincing.Shahid II witnessed from his base in Ottoman Syria the establishment ofShi'ism as the official religion of Safavid Persia. That did not represent theofficial implementation of the sharE'abut it offered opportunities and inspireda comprehensive analysis of the nature and extent of the faqih's authority.Shahid II's commentary on Muhaqqiq'sShard'i', with regardto zakdt,may bedescribed as an incorporation of the faq'h into all those rules which forMuhaqqiq had been relevant only to the imnm or the sd'7. The clarity andintegrity of his view, however, is best appreciated in Al-Rawdatal-Bahiyya.

It is necessary to pay zakat to the imdim f he demands it in person orthrough his s&'i, because of the necessity of obedience. It is said it isnecessary to pay it to the faqih shar'i during the Ghayba if he demands itwhether in person or through his wakTl,because he is nd'ibto the inmmlikethe sr'i, indeed stronger (li-annahu nd'ib al-imam ka 1-sd'i bal aqwd).If the donor refuses (khalafa)and distributes the zakathimself he gainsno ijzd' because of the refusal (to pay the faqih) which corrupts his act ofworship (li'l-nahy al-mufsida (sic) li'l-'ibdda). To pay it to them voluntarilywithout demand is better because they are more knowledgeable of its'places' ... It is said ... it is incumbent to pay, without demand, theimhm or his nd'ib or, during the Ghayba, the faqih ...; as proved by ...(Q 9.103) ..., for, rendering it compulsory for him (the imim) to collectrequires that it be compulsory for them (the donors) to pay, and the ni'ibis like the munawwib. The more prevalent view (al-ashhar) s istihbab.49The more prevalent view is not necessarily Shahid II's. This passage assertscategorically that the faqph may demand zakat and if he demands it, it isincumbent to pay him. He may demand it in person or through his wakil.So it is envisaged that the faqThmay send out tax-collecting deputies to collectzakdt. It might be incumbent to pay zakdt o afaqih even if he does not actuallydemand it. Shahid II justifies this view with a qur'anic quotation and withthe assertion that the nd'ib is like the munawwib. That is, the faqih (nd'ib) islike the imdm (munawwib)and possesses accordingly all of his rights. The twopropositions rendered available in that passage, that the faqik is nd'ib to theimdm and that the nd'ib is like the munawwib constitute the foundation ofShahid II's vision of the execution of the shari'a. The seeds of that vision werenot absent in Buyid times but it took almost six centuriesforthe full implicationsof the imdm'sabsence to become clear. The BuyidfuqahM'perceiving that theirinterests were bound up with the preservation of the shari'a as ideal, free from

4 Shahid II, Rawda, 50.


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478 NORMAN CALDERinvolvement with the defacto power, had declared several aspects of the shari'asdqit..50By the time of Shahid II it had been perceived that most of the siqitfunctions should in fact be under the control of the faqih. That developmentprobably reflects a real consolidation of authority under tolerant governmentsand was fostered by the elusive possibility of actually forminga ' state' subjectto shar'i rules and governed by the clerical class.It will be noted that as the faqikhasserted his right to administer zakattheindividual lost his right to distribute it himself. It was gradually perceivedthat the authority delegated by Ja'far al-S.diq

to the fuqah&'covered not onlystrictly judicial activities but also control of zakit. This was only part of agradual process whereby most of the sdqitfunctions of the imdm were broughtinto the sphere of qada'. That process, while enhancing the authority of theclerical classes, restricted the degree of participation of the non-clerical in-dividual in his own salvation. Some indications in early texts (Tilsi, Ibn Idris)that the individual might be personally responsible for the fulfilment of thereligious duty of zakdt were overlaid and finally removed by the imperativesof clerical control.A similar process was evident in Sunni sources.51There, the right to collectand distribute granted to the accepted shar'i executive, the de facto ruler,pre-empted the right of the individual to assess and distribute for himself.For the Shi'is the accepted shar'i executive was manifestly not the de factoruler but the faqth. The developments in Sunni theory, it has been shown,were accompaniedby a removal of the need for niyya on the part of the donor.A parallel process may be discernedin Imdmi Shi'I jurisprudence.Accordingto Tfisi, zakatmight be paid either through the wakil of the donoror through the imdm/sd'i. In the former case both the donor and the wakl1were requiredto express niyya: if either of the two neglected it there was noijza'. In the latter case, a merely theoretical possibility, the donor had toexpress niyya, but not, necessarily, the imam. If, however, the imam tookzakdtby force, then the unwilling donor gained ijzi'.52 Niyya then during theGhayba-when the imdm cannot take zakit forcibly-is absolutely essential onthe part of the donor and is requiredtwice if the zakat is paid through a wakl.The faqThin Buyid times was probably thought of as wakil, in precisely thissense. 'Alldmain his Tahrfragreed with Tfisi. In the Mukhtalif,he disagreed.Where payment was effected through a wakil, niyya was required only once,either by the wakil or the donor,not both. When payment was effected throughthe imam/ss'i 'Allma denied any distinction between compulsory andvoluntary donation: in either case niyya was not required on the part of thedonor.53It thus fell, for 'Allama, that whether the faqThas distributor of zakdtwas wakil to the donor or nd'ib to the imam, the burden of niyya could beremoved from the donor and transferred to the faqih. The religious reward(ijza') of the individual might be vicariously acquired simply by his submissionto the authority of the clerical class.Accordingto Shahid II:

50 See note 9 above.51 Above, p. 473.52Tfisi, Mabsitt, zakidt,13; cf. Shifi'i, Umm, I, 19; another example of Shifi'i's influence onImimi furit'; cf. notes 11 and 21 above.53 'All1ma, Ta.rir, 67; Mukhtalif, 1i,21.


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ZAKAT N IMAMISHI'I JURISPRUDENCE 479Though complex, both the terminology and the content of that passage areilluminating. It may be analysed as follows:(a) Niyya is incumbent with regard to zakit al-fitraand zakdtal-mdl.(b) (It is incumbent) from either the donor or his wak/l (not both).(c) (It is incumbent) at the time of payment to the recipient or to his (therecipient's) wakIl.(d) (The recipient's wak/l may be) 'umnim,n a generalway, i.e. the inuim or hisnd'ib 'ammor his nd'ib khass.(e) (Orthe recipient's wakil may be) khusuis, hat is, his (own personal) wakIl.(f) If the donor does not express niyya on payment to anyone other than therecipient himself or the recipient's personal wak/l(g) (i.e. if the donor fails to express niyya when he pays to the imnmrnr thend'ib 'dmm or the nd'ib khssY)and if the receiver subsequently expressesniyya on disbursement he (the donor) gains reward.54It is here confirmed that if the donor pays through the faqih (the nd'ib 'immof the imdm)-and according to Shahid II it is incumbent that he in fact dojust that-he need not undertake niyya because he will gain reward on thebasis of the faqih's niyya when he distributes the zakct. Just as the Sunni'sreligious reward depended finally simply on submission to the authority of thedefacto governor, the Imaimi'sreligious rewarddepended simply on submissionto the authority of the clerical class. They depicted themselves as responsiblefor the collection and distribution of zakat; they further analysed the tax-situation in such a way that their control of zakatwas uncircumscribedby therights or duties of donors. The donor became most certain of reward byunqualified surrenderof his zakct to the fuqaha'. ThefaqTh n this assessmentof zakdt-distribution was seen to be not wakil to the donor but wakil to therecipient, a position acquired by virtue of his status as nd'ib to the imndm.The fuqahi' were permitted to distribute the zakdt in a rather arbitraryfashion. It was preferable (mustahabb)o pay something to each of the eightrecipient categories. But it was not incumbent to deal equally with eachgroup, in fact it was better to give preference to the ' superior', bal al-aftdaltaftdilal-murajjah. That, from Shahid II, should be compared with his in-corporation of the clerical class into the recipient categories of fuqard' andmnasdkin.55t is permissibleto pay the zakctto only one of the eight categoriesor even to only one individual within a category. Further it was permissibletoprovide ighnd', that is to provide more than a sufficiency: there were nolimits to how much could be given as long as it was paid at one time.56 Thefuqaha' gave themselves a great deal of discretionary power in utilizing anddistributing the taxes, payment of which to them they thought incumbent.The locution nd'ib 'Jmm which emerged in Shahid II's discussion of zakcthad first appeared in the works of 'Ali ibn IHusayn al-Karaki 57where, too, itwas explicitly contrasted with the term nd'ib ckhass.58The first of these termsdesignates a fully-qualifiedfaqih, sharing in the judicial authority delegated to

5"Shahid II, Rawda, 51.55Above, p. 470.56 Shahid II, Rawd1a, 0-1.7For whom, see Khwin;gri, Rawd.t al-Janndt, Tehran, 1306, 402-7; E. Glassen, ' SchahIsma'il und die Theologen seiner Zeit ', Der Islam, 48, 1971-2.58Karaki, Jdmi', 130-1, ad Friday Prayer; see also ad jihald, 187. The definition of nd'ibkhdss given by A. K. S. Lambton, op. cit., 181, footnote, reflects a later development. The useof the term nd'ib khadssn the Risala Jihldiyya is certainly to be understood as a referenceto thepre-Ghayba period, or to the sufard', Kohlberg, ' The development of the Imi-mi Shi'i doctrineof jihad ', ZDMG, 1976, 82-6.


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480 ZAKAT N IMAMISHi'I JURISPRUDENCEthe fuqah&'by Ja'far al-*adiq. The second term, nd'ib khass, would appear toindicate the same entity as was in early Imdmi juristic works designated mannasabahu al-imnm, that is, a contemporary of the imdm, or possibly the foursufard'. This distinction in the typology of niyaba, once it emerged, wasexploited, particularlyby Shahid II in his al-Rawdatal-Bahiyya, for its remark-able explanatory and justificatory value within the structure of juristicargument.The idea of the faqih as nd'ib 'amm to the absent imdm became a keyelement in a juristic structurewhich denied shar'i legitimacy to secularpowers,while affirmingthe ultimate right of the clerical class to implement the shari'aand promoting in practice their financial independence from the government.This was a doctrine of potential resistance, significantly different from thatwhich existed in Buyid times,59but it may not be naively interpreted as arevolutionary theory. For, incorporated within the juristic framework of thetheory were elements permitting or promoting accommodation between theruler and the religious classes.60 (The elaboration of the shari'a in Islam wasalways based on the juxtaposition of formally discrete units in such a way thatthe full meaning of one unit only becomes clear when the various qualificationsimplicit or explicit in the framing of other units are taken into consideration.)Different jurists at different times laid varying stress on the notions ofillegitimate government or legitimate clerical aspirationsor modes of accommo-dation. But in general the practical result of the Imimi theory was neitherclerical rule nor necessarily clerical rebelliousness (though the latter was notunknown, and the former always possible): the Im~mifuqahi' were, however,stronger, richer, and significantly more influential in the state than their Sunnicounterparts. The events of the early Safavid period, and especially thebiography of al-Karaki,may be thought to confirm that it was the accommoda-tory aspects of the shari'a which were generally most relied on to promote theinterest of the Imimi faith and to enhance the power and influence of theclerical class.61

"9Above, p. 469.60 See my forthcoming study, ' Accommodation and revolution in Im~imiShi'i jurisprudence:Khumayni and the classical tradition'.61 I should like to thank Professor A. K. S. Lambton and Dr. John Wansbrough for theirhelpful suggestions in the preparation of this study.

zakāt in imāmī shī'ī jurisprudence, from the tenth to the sixteenth century a.d

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