COMPARING IBADHI AND SUNNI law in Baṣra : the case of the zakât on cattle 1In The Origins of Muhammadan Jurisprudence, published first in 1950 and since then the subject of heated discussion and argumentation, Joseph Schacht placed ḥadîth in the centre of his historical reconstruction of Muslim law. In his work, he reached the conclusion that the Prophetic Sunna was the result of a systemization process in which certain legal norms had been assimilated to Prophetical traditions only towards the middle of the 2nd/8th century, even if they could have been older. By this way, the « living tradition » of the ancient legal schools could have been precised and completed before being transmitted with the appropriate isnâd. During this process, many traditions that were still in circulation among the Prophet’s Companions and Followers would have been abandoned and excluded because they were no longer fitting with the legal consciousness developed by the jurists. This is what J. Schacht calls the « unsuccessful traditions » (Schacht 1950: 80-81). 2Unsuccessful traditions were not completely removed from the wide Islamic legal production, and many were preserved in preclassical sources like the two Muṣannaf of ‘Abd al-Razzâq (d. 211/826) and Ibn Abî Shayba (d. 235/849), as well as in non-canonical collections. When unsuccessful traditions were concerning controversial issues, their argumentation may also have been reflected in fiqh literature, which tries to explain rationally such an embarrassing material. Ancient Ibâḍî legal sources, some of them unpublished, are a real mine for studying these unsuccessful traditions. Throughout its history the Ibâḍî movement endured isolation from the rest of the Islamic community, a situation derived from its own ideology, asserted as soon as during Abû ‘Ubayda’s (d. circa 762) Imamate, and strenghthened by the relegation to peripheral areas of the Islamic world where the sect survived. This process precisely allowed the preservation in Ibâḍî sources of ancient traditions given up by the Sunnis. 3In the following contribution I concentrate on the early development of the Ibâḍî law (8th-9th century) when Ibâḍî scholarly activity was still developing in the heartland of the Islamic world, above all in Baṣra. Living in Baṣra, one of the major centers of political, ideological and religious debates in early Islam, and being contemporary with the events of that lively period, Ibâḍis kept in close contact with the Sunnî community. Jâbir b. Zayd1, the second Ibâḍî imâm and the real founder of Ibâḍism, enjoyed an enormous prestige as a man of learning, and even orthodox Muslims acknowledged his authority on tradition. He was a personal friend and follower of al-Ḥasan al-Baṣrî and Ibn ‘Abbâs, and some outstanding Sunnî traditionists were belonging to his circle, like Qatâda b. Di‘âma, ‘Amr b. Ḥarim, ‘Amr b. Dînâr, Tamîm b. Ḥuwayṣ, and ‘Umâra b. Ḥayyân (Francesca, 2003 : 261-264). 4The existence of a scholarly link between Sunnis and Ibâḍis during the Islamic law early stage of development is attested by the fact that the Aqwâl Qatâda – a collection of legal responses and traditions attributed to the famous Successor Qatâda b. Di‘âma al-Sadûsî (about 60/680-117/735) – also preserves traditions from Jâbir, transmitted through ‘Amr b. Ḥarim and ‘Amr b. Dînâr, and from al-Rabî‘ b. Ḥabîb through Abû ‘Ubayda and Jâbir2. The Aqwâl Qatâda are a unique case in the Sunnî as well as in the Ibâḍî literature. 5Not only the Ibâḍî scholars of Baṣra did actively contribute to the debate from which the Islamic law sprang, but they also became legal and theological references for other Ibâḍî communities. From the 3rd/9th century onwards, after the Ibâḍî community had left Baṣra and moved to ‘Umân, a real school (madhhab) was founded thanks to the formalization of legal and doctrinal norms in both uṣûl and furû‘ works. During the 5th/11th and 6th/12th centuries, this process was intensified but legal production was gradually conceived following the structure and legal matters discussed in Sunnî writings. As a consequence, the Ibâḍî legal system began to loose some of its originality and the legacy of Baṣra was partly abandoned (Wilkinson, 2010 : 436). 6It is necessary then to come back to the earliest treaties, written by the first generation of lawyers formed by Jâbir b. Zayd’s school, to find legal material from the late 2nd/8th century. These pioneering works are the real backbone of the Ibâḍî jurisprudence from the first two centuries. Systematic collection, identification and historical classification of ancient materials available in manuscripts is necessary for understanding the early development of the movement (Ennami, 1970 : 63-87 ; Van Ess, 1976 : 25-63 ; Id., 1977 : 1-4 ; Francesca, 2005 : 234-248). Moreover, the oldest Ibâḍî sources provide us with rough data for analyzing the Ibâḍî contribution to the formation of the Islamic law. A thorough analysis of this material may contribute not only to our knowledge of this sectarian movement but also to the whole early Islamic history. 7The tradition discussed here is dealing with the minimum taxable threshold (niṣâb) of cattle. According to the teachings of the Prophet to Mu‘âdh b. Jabal, Sunnî schools used to fix the niṣâb amount at 30 head of cattle. The Shiʿites were following the same rule. Regarding the Ibâḍîs, they used to fix the amount at 5 head of cattle and to refer to another Prophetical tradition. My intention is to explain these discrepancies in the definition of the zakât. Such a task requires a comparison between many historical and legal texts which lines of transmission should also be studied. Even if ḥadîth literature is always subject to interpolation and falsification, I believe that it is possible to find sufficient authentic materials to formulate hypotheses about the oldest legal traditions. The regulation of almsgiving in the Qur’ân 8The Qur’ân considers the practice of almsgiving one of the believer’s duties, expressed generically (Qur’ân 13:22 ; 14:75; 35:29 ; 36:47), or by the terms zakât and ṣadaqa, used as synonyms even if the verses 2:177, 63:13 and 9:79 seem to make a clear distinction between voluntary charity and the obligatory tithe. According to Islamic sources, voluntary almsgiving, already practiced in Mecca, preceded the obligatory almsgiving (zakât), which was instituted or at least regulated in Medina. 9In the Qur’ân, zakât is accompanied by prayer (ṣalât), thus being given a strong religious connotation. The ambiguity of the terms used in Qur’ân is accentuated both by generic references to giving (infâq, 2:3) and the occasional use of zakât as voluntary almsgiving (5:55). Even with respect to the worth of these two forms of charity, a certain ambiguity remains : secret almsgiving is preferable to public almsgiving (2:271) and the donor’s behaviour is an essential part of it (2:264). The purifying force of almsgiving is clear in 2:196, where fasting, almsgiving and sacrifice are conceived as an expiation for not carrying out correctly a religious practice (see also 2:271) (Bashear, 1993 : 84- 93). 10The Qur’ân does not regulate the practice of charity at all. To the question of how much should be given for the alms, the Qur’ân replies laconically : « What is beyond your needs » (2: 219). Even on what should be given as alms the Qur’ân is vague : several times the believer is invited to donate what he loves (2:177 ; 76:8), or valuable things (2:267). The distribution of the zakât by the Prophet is not explicited and believers seem to be requested to give alms directly to the poor. The principle according to which alms could be used not only for the poor, orphans or needy relatives, but also for military or political reasons was asserted in the Medinan period, whereby in the 9th year of Hijra the eight categories of legal beneficiaries were defined (9:60) : Alms are for the poor and the needy, and those employed to administer the (funds) ; for those whose hearts have been (recently) reconciled (to Truth) ; for those in bondage and in debt ; in the cause of God ; and for the wayfarer. 11The new situation of the young Muslim community in Medina was reflected in the evolution of the zakât that, initially abstract, became an institution. But it was still concerning exclusively donations, and neither the beneficiary, nor the quantity or the way of giving were defined. In this period, the zakât was not characterized as a tax. 12According to a tradition given by Bukhârî, during caliph ‘Uthmân’s time there was no agreement on the obligatory nature of the zakât, and al-Qasṭallânî’s comment states that the revelation of the obligatory zakât came only in the 2nd year of Hijra according to some jurists, or later in the 9th year of Hijra, almost at the end of Muḥammad’s mission, according to the others (al-Qasṭallânî, 1376/1956-1957: 3/10). The authenticity of this tradition is controverted because the Qur’ân shows no evidence that Muḥammad, still alive, would have really changed the zakât into an obligatory tax. Even in the Medinian Qur’ânic passages, the root « nafaqa » (« distribute », « donate ») is frequently used, and we find exactly the same recommendations than in Mecca. The Qur’ân never mentions any obligatory tax with fixed and constant norms, and does not mention either the obligation of collecting the zakât regularly (Caetani, 1905-1926: 299, 306-307). According to some interpretations, the Qur’ân seems to give a communist meaning to the zakât, inviting the believer to give everything, except what he needs for living. This would have been Abû Dharr al-Ghifârî’s source of inspiration, for this well-known companion upheld the extreme thesis that the believer should keep and own only what was strictly necessary, and was consequently isolated from the community (Rodinson, 1968: 45-46; Bashear, 1993: 92-93). 13The verse 9:103 (« Of their goods, take alms, that so thou mightest purify and sanctify them »), linked to the preceding one which refers to the Bedouins who had repented and admitted their sins, has excited controversy between those who have interpreted it as a reference to the introduction of an obligatory tax and others who have seen it as expiation (kaffâra) limited to repentant sinners (Bashear, 1993: 97). 14The Prophet offered peace and protection to the tribe provided that they should annually consign each year a certain amount of livestock and agricultural produce. Simonsen, on the basis of Qur’ân 58:12, views the zakât as a payment required from Beduin for an audience with the Prophet (Simonsen, 1988: 32-35). Many companions, including ‘Umar himself, believed that the tribes had the right to consider that they were no longer obliged to pay the tribute after Muḥammad’s death, proving that the zakât was not obligatory and remained a voluntary and spontaneous act. 15Tradition believes that Abû Bakr was considering zakât equal to the prayer and that he had imposed it to rebellious tribes (Ibn Ḥanbal, 1405/1985: 1/11). The Prophet’s exclusive role in carrying out the purifying prayer for repentant sinners who had given the zakât (9:103) was alleged by some tribes who refused to accept Abû Bakr’s authority for the same role. Ṭabarî adds that the tribes saw the zakât as a fine or a poll tax (jizya) and that it was another reason for refusing to pay it. This is echoed in Qur’ân 9:98 (« Some of the desert Arabs look upon their payments as a fine »). In the interpretation of the tribal revolt (ridda) some scholars – like J. Wellhausen (1960: 14-15), L. Caetani (1905-1926: 311-314) and C. Brockelmann (1947: 45-46) – have emphasized the socio-economic and political motivations and minimised the religious ones (Simonsen, 1988: 73-75). On the contrary, others, like M. Watt (1956: 147-148) and E. Landau-Tasseron (1981: 3-4), have stressed the religious aspects. Yet others such as A. J. Wensinck (1932: 12) and M. J. Kister (1984 : 35-36) threw doubt on the authenticity of the traditions regarding Abû Bakr and ‘Umar’s respective roles in the ridda, considering these accounts a proof that the obligatory nature of the zakât was still a matter for discussion until the 2nd/8th century. 16In the 2nd century traditions were diffused under the names of Anas b. Mâlik, Jâbir b. ‘Abdallâh, Ibn ‘Umar, making the payment of zakât one of the criteria for the definition of Muslim people opposed to other categories of population. But these traditions were not taken among the narrative accounts on the tribal denial to pay the alms during the ridda (Bashear 1993: 113). The tribal refusal to pay the zakât was certainly not due to the fact that this practice was unknown. On the contrary, the pre-Islamic origin of the terms zakât and ṣadaqa shows that ritual almsgiving was already familiar to the peoples of Arabia in late antiquity. Michael Lecker (2001: 19-43) has recently studied the survival in Prophet’s time of a series of pre-islamic taxes (maks), in particular on markets and fairs. Pre-Islamic epigrafic inscriptions from South Arabia also provide evidence that South Arabian population was supposed to pay temple tithe each year, and also very probably on almost every agricultural lands. In Sabota (Ḥadramawt), a tithe was taken by the priests for the god and there was also a tax on livestock, including cattle, but we find no evidence of anything similar to a regular system of taxation. That was probably why South Arabian tribes resisted to the regular payment of zakât during to the rule of the first caliphs in Medina (Korotayev, 1996: 60-61, 76 ; Sima, 2000: 45). 17The various types of taxation are themselves reflected by a very ambiguous lexicon : in the oldest sources the words zakât, ṣadaqa, kharj/kharâj and above all ‘ushr replaced sometimes the term maks, customs, or were used with a wider meaning than given in later legal interpretations (Lecker, 2001: 38). The obligatory nature of the taxes was not established yet, and in order to legitimize controversial taxes the sources give the role of tax-collecting to individuals of high moral stature such as ‘Umar b. al-Khaṭṭâb (Lecker, 2001: 39). Furthermore, their imposition on the tribes was the result of individual negotiations. Many of the Prophet’s letters – written both to nomadic and sedentary tribes – contain the formula lâ yu‘sharûna wa-lâ yuḥsharûna. This formula appears in the letters to the ‘Uqayl tribe (belonging to Qays ‘Aylân) and to the Ghâmid (belonging to the Azd), as well as to the inhabitants of important centres like Thaqîf (who lived in Ṭâ’if), the inhabitants of Baḥrayn and Dûmat al-Jandal (Ibn Sa‘d, 1957-1968: 1/279-280; Abû ‘Ubayd al-Qâsim, 1968: 636 ; Lecker, 2001: 35-37). According to M. Lecker, the two terms employed in this sentence refer to fiscal privileges granted by the Prophet to certain tribes and are certainly synonymous. Referring to the expression lâ yu‘sharûna wa-lâ yuḥsharûna, Ibn Sa‘d (1957-1968: 1/270-271) writes in a letter to the Ju‘ayl (subdivision of Balî) : « They will not be driven from the one watering-place to another for the purpose of taxation, and the tenth will not be taken from them once a year » (Lecker, 2001: 35-36). The same epistle is also referring to the obligation of fulfilling the zakât together with the prayer. This would indicate that – in this initial phase – taxes in their real sense were designated by the word ‘ushr, while the term zakât referred to a more generic obligation to give alms – even in ritualised forms – linked to the precept of the ṣalât. The zakât on cattle 18The fiscal system in the early centuries of Islam included not only taxes considered as legal (zakât, ‘ushr, kharâj, jizya), but also a series of illegitimate taxes and duties linked to commercial practice, which came to be designated by the term « maks ». There is no need to assume that the levying of customary taxes ceased with the advent of Islam. As is well known, the Muslims took over the state apparatus of the two empires they had vanquished. There was also continuity with regard to the Sassanian governor in Yemen (Lecker, 2001: 29). Moreover, the Prophet granted a special taxation regime to several tribes converted to Islam (Kister, 1979: 11). 19Therefore, the fiscal system of the Islamic state in the early centuries is rather uncertain and was subject to different influences. The very obligation of zakât itself was questioned after the Prophet’s death during the revolt of the Arab tribes (ridda). Even after the revolt had been crushed and the zakât clearly established as compulsory, many uncertain points concerning its application remained. One of these was the taxable threshold for cattle. 20The taxable threshold established by the Ibâḍî law of zakât for pasturing oxen was 5 head, the same for pasturing camels, whilst Sunnî and Shiite law applied a taxable threshold of 30 head to oxen, less than 30 being free of zakât (Francesca, 1987: 13, 19). The Ibâḍîs based their theory on two traditions based on the Prophet’s and ‘Umar b. al-Khaṭṭâb’s instructions. 21The oldest Ibâḍî account on the niṣâb for cattle is preserved in the Aqwâl Qatâda b. Di‘âma, a collection of traditions and legal responses attributed to Abû ’l-Khaṭṭâb Qatâda b. Di‘âma al-Sadûsî (about 60/680-117/735), the famous Successor of Bedouin origin who became proverbial for his prodigious memory and his knowledge of genealogies, lexicography, historical traditions, and Qurânic exegesis. Qatâda b. Di‘âma transmitted himself Jâbir b. ‘Abdallâh’s Ṣaḥîfa, while his Qurânic teachings were written down by Sa‘îd b. Bashîr (d. 168/784-85). In Baṣra, where he spent almost all his life, he was the pupil of al-Ḥasan al-Baṣrî, Ibn Sîrîn and also Jâbir b. Zayd. The Aqwâl Qatâda were probably collected by the Ibâḍî scholar Abû Ghânim Bishr al-Khurâsânî, author of the Mudawwana, who lived between the end of the 2nd/8th century and the first decades of the 3rd/9th century, and they were later included in a large Ibâḍî manuscript called al-Dïwân al-Ma‘rûḍ ‘alâ ‘Ulamâ’ al-Ibâḍiyya, described by Ennami as one of the most significant collections dedicated to Ibâḍî authorities. It also contains narrative accounts attributed to a number of traditionists from Baṣra, Kûfa and Medina concerning several questions of jurisprudence (Ennami, 1392/1972: 94). Three copies of the Dïwân have survived. Two of them are deposited in a private library, al-Khizâna al-Bârûniyya in Jerba (Tunisia). The last one is preserved in Dâr al-Kutub (Cairo), and it is certainly a copy from the Ibâḍî collection of manuscrips called al-Wakâlat al-Jamûs, a trust (waqf) established for the Ibâḍî students who studied at al-Azhar University. 22The Aqwâl Qatâda b. Di‘âma are a unique document because they attest to the existence of a scholarly link between Sunnîs and Ibâḍis during the early development of Islamic law. The Bârûniyya copy of the Aqwâl Qatâda dates from the late 18th century, but the material preserved in the manuscript proved to be authentic. There is no easy way to affirm the authenticity of ancient Islamic legal sources. The risk of manipulation should not be underestimated, but the arguments in favour of the genuineness of the content of the manuscript I have used for this study are convincing. My assumption is based on the following evidence and considerations. The Aqwâl Qatâda, as further early Ibâḍî sources, show a primitive structure: they teem with aqwâl of certain fuqahâ’, on occasion supported by an incomplete isnâd going back to the Companions. It must be noted that the concept of sunna as the exemplary behaviour of the Prophet is conspicuously absent from the works compiled by the early Ibâḍî authors as well as from early Sunnî sources. The first fuqahâ’ used to rely on the authorities whose opinion they had collected and they did not used to refer directly to the Prophet. Even in that case, they were transmitting what they were conceiving as the Prophetic wisdom. Moreover, the themes treated in the Ibâḍî manuscripts reflect the legal debate in course during the first two centuries of Islam, and the solutions proposed by the Ibâḍî lawyers for legal cases are often primitive (Ennami, 1970 and 1972; van Ess, 1976 and 1977; Francesca, 2003 and 2005). 23The affinity between Qatâdas legal responses and those of the first Ibâḍî authorities are attested by brief annotations at the foot of Qatâdas traditions where the collator, Abû Ghânim Bishr al-Khurâsânî, points out the coincidence between Qatâdas opinion and the Ibâḍî authorities, mainly Jâbir, Abû ‘Ubayda and al-Rabî‘. For example, after a responsum by Qatâda about the Ṣalât al-khawf, we find: « wa hâdhâ qawl al-Rabî‘ ‘an Abî ‘Ubayda wa-huwa qawl Jâbir b. Zayd wa Ḍumâm » (Qatâda : f. 10, line 23). 24Abû Ghânim probably transmitted the Aqwâl from al-Rabî‘ b. Ḥabîb (d. 170/786-180/796), as proved by the expression « wa-ḥaddathanî bi-hâdhâ al-Rabî‘ », which is occasionally found in the manuscripts. This explains why the Aqwâl also preserve responsa from al-Rabî‘ (second, third and fourth parts) and traditions transmitted by al-Rabî‘ from Abû ‘Ubayda and Jâbir (mainly in the first and second part, see Francesca, 2005: 234-236). 25The ff. 102-104 (manuscript of the Maktaba al-Bârûniyya, Fiqh Ibâḍî, no number) of the Aqwâl Qatâda b. Di‘âma include traditions and responsa on zakât from ‘Amr b. Ḥarim, Jâbir and other Sunnî authorities. 26At folio 102 a tradition transmitted by ‘Amr b. Ḥarîm from Muḥammad b. ‘Abd al-Raḥmân al-Anṣârî states that when ‘Umar b. ‘Abd ‘Azîz, the Umayyad caliph who ruled from 717 to 720, was elected, he sent an agent to Medina to look for a document in which Muḥammad had given instructions for the payment of zakât. He found the document, which had been kept by the family of ‘Amr b. Ḥazm, the Prophet’s companion and governor of Najrân. He also found another writing on charity, sent by ‘Umar to his tax collector and kept by the latter’s family, that was identical to the Prophet’s writing addressed to ‘Amr b. Ḥazm. ‘Umar b. ‘Abd ‘Azîz ordered his tax collector to copy the writings on zakât and to collect it following these documents. 27According to this old statement, zakât must be collected on pasturing camels and cattle, in both cases starting from a minimum amount of 5 head (Qatâda, f. 103 line 25, f. 104 line 3), on pasturing sheep and goats, starting from a minimum amount of 40 head, on gold and silver starting from a minimum amount of 20 dînâr and 200 dirham. For agricultural products, the zakât is due on dried dates, raisins and wheat, providing that they reach a minimum amount of 5 wasq (camel-loads). 28Another significant early Ibâḍî document on zakât is the risâla written by Abû ‘Ubayda (d. circa 762) to the Maghribî imâm Abû ’l-Khaṭṭâb al-Ma‘âfirî (d. 761), which concentrates mainly on zakât distribution stating that only the poor Ibâḍis who have not committed any major or minor sin deserve the zakât (Abû ‘Ubayda, 1982). Later Ibâḍî sources developed these principles according to the dogmatic concepts of walâya and barâ‘a (association and dissociation), that is to say the obligation of friendliness towards individuals who carry out the precepts of religion in a satisfactory manner, and on the contrary the obligation of hostility against those who do not deserve to be called believers. The walâya principle imposes the distribution of almsgiving only among poor Ibâḍis who were considered true believers. Moreover, some scholars held that the poor godless Ibâḍî is entitled to zakât before the upright learned non-Ibâḍî Muslim (Francesca, 1987: 33-34). 29Except for the rules concerning the zakât distribution and those on zakât on cattle, the Ibâḍî law on zakât, as it was developed in the later fiqh works, is quite similar to the Sunnî law except slight differences on secondary issues (Francesca, 1987). 30Ibâḍî legal sources, except the Aqwâl Qatâda b. Di‘âma, do not refer to the Prophet’s or to ‘Umar’s writings on the zakât, but they confirm that the minimum tax threshold fixed for oxen was five head, the same than for camels. The Mudawwana of Abû Ghânim al-Khurâsânî states, on the authority of Abû ’l-Mu’arrij, that the zakât for oxen is 5 head, like for camels, and that « our companions, Abû ‘Ubayda and Jâbir b. Zayd, did not accept the tradition of Mu‘âdh » (Abû Ghânim, 1404/1984: 1/246-247). 31In the Jâmi‘, the first major Omani compendium of Ibâḍî fiqh, written by the famous ‘âlim Ibn Ja‘far in the 3rd/9th century, we find the following assertion which provides a full description of the zakât due on oxen (Ibn Ja‘far, 1981: 3/149; Francesca, 1987: 54-55 ; See also al-Kindî [d. 557/1162], 1979-1983: 6/10-16) : For cattle the same amount is taken as for camels, for 5 head 1 sheep is taken, for 10 head 2, for 15 head 3, for 20 head 4, and if the cattle amount reaches 25 head a jadha’a [a cow in her second year] is taken, as old as a bint makhâḍ [a female camel in her second year] ; for 36 head of cattle a thaniyya [a cow in her third year] is taken, as old as a bint labûn [a female camel in her third year]; for 46 head a rabâ‘iya [a cow in her fourth year], as old as a ḥiqqa [a female camel in her fourth year] ; for 61 head a sadas [a cow in her fifth year] is taken, as old as a jadha‘a [a female camel in her fifth year] ; for 76 head, 2 head are taken, of the age corresponding to the camels, and so on ; for 300 head of cattle, 1 head is taken from every 40. 32The tradition attesting that the niṣâb for oxen corresponds to that of camels is confirmed also by some Sunnî sources. One of them, the Kitâb al-Amwâl by Abû ‘Ubayd al-Qâsim (d. 223/837), reports a tradition that corresponds, except in a few minor details, to the Aqwâl Qatâda (Abû ‘Ubayd al-Qâsim, 1968: 497; Aqwâl Qatâda : ff. 102-104). The Kitâb al-amwâl is also referring to the Prophet’s and the caliph ‘Umar’s writings on almsgiving, transmitted by Yazîd b. Hârûn from Ḥabîb b. Abî Ḥabîb, from ‘Amr b. Harim, from Muḥammad b. ‘Abd al-Raḥmân al-Anṣârî (Abû ‘Ubayd al-Qâsim, 1968: 497). 33Regarding the minimum taxable amount for cattle, the Kitâb al-Amwâl reports on the authority of Ḥabîb b. Ḥabîb from ‘Amr b. Ḥarîm and Muḥammad b. ‘Abd ar-Raḥmân al-Anṣârî (Abû ‘Ubayd al-Qâsim, 1968: 524; see also Aqwâl Qatâda : f. 103 line 25): 34In the Prophet’s writings – eulogy – and in ‘Umar b. al-Khaṭṭāb’s it is written that the [tax] levied on cattle is the same than the one levied on camels. 35Two further Sunnî sources quote the Prophet’s and the second caliph ‘Umar b. al-Khaṭṭâb’s writings on almsgiving, but they do not mention the mimimum amount for cattle : the Sunan of Abû Dâwûd (d. 275/888), with an isnâd going back to al-Zuhrî, and the Sunan by al-Dâraquṭnî (d. 385/995) which relates the tradition using the same isnâd than in the Aqwâl Qatâda (Abû Dâwûd, 1409/1988 : 1/491 ; Dâraquṭnî, 1386/1966: 2/116-117). 36The correspondence of the minimal amount for cattle and that of camels is also reflected in other Sunnî sources, in particular: 371. ‘Abd al-Razzâq, Muṣannaf (1390-1392/1970-72: 4/24): transmitted by al-Zuhrî, from Qatâda, from Jâbir b. ‘Abd Allâh (see also ‘Abd al-Razzâq, 1390-92/1970-72 : 4/25, on the authority of Ma‘mar b. Rashîd, from his master al-Zuhrî) : For 5 cows a sheep is taken, for 10 cows 2 sheep, for 15 cows 3 sheep, for 20 cows 4 sheep. Al-Zuhrî said: from 20 to 75 cows, 1 cow is taken, from 76 to 120 cows 2 cows, and then 1 cow is taken for every 40 cows. This reduction was beneficial to the people of Yaman. 382. Ibn Abî Shayba, Muṣannaf (1414/1994: 3/20; see also: Ibn Abî Shayba, 1414/1994: 3/110): According to the tradition related by Ibn Abî Shayba, ‘Ikrima b. Khâlid, the tax collector of the Banû ‘Akk tribe, said that some shuyûkh maintained that the zakât on cattle was equal to that on camels, while others claimed that a calf was taken every 30 cows, yet others said that a cow was taken every 40 head. 393. Bayhaqî (d. 458/1066), al-Sunan al-kubrâ (1995: 4/99): transmitted by Ma’mar, from Zuhrî, from Jâbir b. Abdallâh: For 5 sheep 1 sheep is taken, for 10 sheep 2, for 15 sheep 3, for 20 sheep 4. Zuhrî said: From 25 to 75 cows, 1 cow, from 76 to 120 cows 2 cows, from 121 head upwards 1 cow is taken every 40. From Ma’mar following al-Zuhrî: The words a tabî‘ [an uncastrated bull in his second year] every 30 head refers to a tax reduction in favour of the inhabitants of Yaman. 404. Ibn Ḥazm (994-1064), al-Muḥallâ (1349/1930: 6/3-16) says that the niṣâb of 5 head for oxen was an opinion of the Medinan school. 415. ‘Alâ’ al-Dîn ‘Alî al-Muttaqî (888/1472-975/1568), Kanz al-‘ummâl (1312-1314 H.: 3/306-307) : It is reported from al-Zuhrî that the Prophet’s words every 30 cows, 1 calf should be considered as a tax reduction in favour of the people of Yaman, after which it has become a rule. [...] From Ayyûb, I have heard people saying: take from us what the Prophet took , and I was surprised until al-Zuhrî told me that the Prophet had written a document on these taxes but that he had died before being able to send it to the tax collectors. The document passed to Abû Bakr, who gave it to one to his tax collectors, except the part regarding oxen. [...] From Qatâda, from Sa‘îd b. Musayyib, and from Abû Qalâba and others: The zakât on oxen is the same than the zakât on camels. 42Unlike what happens with the niṣâb for camels, the niṣâb for cattle is frequently questioned in Arabic medieval sources. Moreover, these sources do not explain why there was a different minimum amount established for camels, oxen, sheep and goats respectively. Probably in the Prophet’s time, these amounts represented a proportionate value, but it is not sure. The ambiguity of the sources about the minimum threshold for oxen may come from the fact that the tradition transmitted by Mu‘âdh b. Jabal, Muḥammad’s tax collector in Yaman, giving 30 head as the minimum tax threshold, was not considered authentic by all jurists (Ibn Rushd, 1995: 2/517 ; al-Qaraḍâwî, 1997: 1/192-203). 43At the same time, there were discordant opinions also based on instructions given to the tax collectors by the Prophet or by the second caliph ‘Umar. The study of historical sources regarding instructions given to the tax collectors (see Caetani, 1905-1926; Sprenger, 1856; Sperber, 1916; Lecker, 2001) shows that the tax collectors were often free of deciding alone on questions considered as secondary. According to al-Qaraḍâwî, in the case of oxen, the tax collectors could fix the minimum tax threshold on the basis of their effective local value, which could vary greatly given that the pasturing for oxen was much less common than for camels (Qaraḍâwî, 1997: 1/203). 44Another important document gives norms for the payment of the zakât: the instructions given to ‘Amr b. Hazm by the prophet when he sent him to Najrân. This document has also been manipulated : while the first versions of the document reported by Ibn Ishâq (d. 150/767) and Abû Yûsuf (d. 182/798) do not refer to the zakât on cattle, in the definitive version reported by Ibn Hishâm (d. 218/833), it is reported in detail (Caetani, 1905-1926 : 317-320). The minimum taxable threshold for oxen is fixed at 30 head. 45It is rather significant that many sources do not precise the minimum taxable threshold for oxen when they deal with the zakât. For example, in the Kitâb al-kharâj of Abû Yûsuf, a reference is made to the instructions on the zakât let by the Prophet who wrote them and tied them to his sword. In another account, these instructions are mentioned among his last wishes, that would be realized only after his death. But these accounts do not refer to oxen, but only to camels and sheep (Abû Yûsuf, 1921: 115)3. 46Al-Shâfi‘î (d. 188/820) refers in his al-Umm to a writing of Mu‘âdh, owned by ‘Umar b. ‘Abd al-‘Azîz, where it is stated that the minimum taxable threshold for cattle should be 30 head. He also states that there is no discordance (khilâfa) on the tradition, a possible clue that the niṣâb on cattle was accepted in his time (al-Shâfi‘î, 1321/1943: 2/8). However, in the Musnad al-imâm al-Shâfi‘î, a tradition transmitted by ʿAmr d. Dînâr from Ṭâwus says that Mu‘âdh had not received precise orders from the Prophet about the zakât on cattle, and that when he came back to Medina to ask whether the niṣâb of 30 head for cattle was correct, the Prophet was already dead (al-Shâfi‘î, 1417/1996: 187). Conclusion 47How can the rules concerning the zakât on oxen be interpreted? Leaving apart customary and local practice, the level of the tax threshold was also determined by political reasons. The first rules appear to be a political concession to the people of Yaman, who obtained to pay the same customary taxes as before the rise of Islam. According to al-Zuhrî (d. 124/742; Motzki, 1991), whose name appears in the tradition reported by Sunnî sources, the Prophet’s instructions fixing the niṣâb for pasturing oxen to 30 head were a provisional benefit for the inhabitants of Yaman. They were later abrogated by the rules fixing the niṣâb at 5 head (‘Abd al-Razzâq, 1390-1392/1970-1972: 4/24-25; Qaraḍâwî, 1997: 1/I198-199). 48It is worth mentioning that al-Zuhrî, and some of his Medinan pupils, also appear in traditions about the Prophet’s letters concerning fiscal regulation that would have been sent to foreign leaders, or that would have been found tied to his sword after his death (Ibn Abî Shayba, 1994: 3/15; Abû Dâwûd, 1409/1988: 490; Tirmidhî, 1408/1987: 3/nº 621; Dârimî, 1407/1987: 1/466; ‘Abd Allâh b. ‘Umar, 1987: 9/359-361 ; Abû Yûsuf, 1921: 115). Naturally these letters were fictitious because they are so markedly imbued with caliphal ideology that they clearly belong to the caliphal debate of the 8th century (Simonsen, 1988: 50). Al-Zuhrî was active in this process as is clearly demonstrated by his presence in the traditions connected with the Umayyad caliph ‘Umar b. ‘Abd al-‘Azîz. The latter, who was a former governor of Medina, was also connected with the Medinan practice. As is often the case, his pious position (or alleged position) stands in sharp contrast with what has been expressed by his predecessors and what would be expressed by his successors. ‘Umar Ibn ‘Abd al-‘Aziz is supposed to have written to the people of Medina in order to find out what was the original practice in Prophet’s time. He apparently felt the need to legitimize new fiscal arrangements for the Muslim empire with reference to Muḥammad’s practice. He also tried to conciliate State interests and the strive to prevent the imminent breakdown of the Islamic state with the growing development of religious thought. ‘Umar’s fiscal legislation can be considered as the consequence of his predecessor’s attempts to reform the state 4. 49One of the most important aims of ‘Umar’s Fiscal Rescript was to reassert the obligatory character of zakât. The Arab expansion and the conquest of the Byzantine and Persian empires undermined the economic significance of the zakât paid by the tribes of the Arabian peninsula, substituted by a new taxation system based mainly on land taxes, ‘ushr and kharâj (Løkkegard, 1950; Dennet, 1950). The zakât was no longer the general concern of the Muslim community as a whole but was mainly paid to indigent people. Nonetheless, ‘Umar’s fiscal regulation shows a great concern for how the zakât was administrated. The alms-tax had to be rigorously but justly taken from all Muslims on their landed properties, livestock, and monetary capital, and improper extortion had to be prohibited. The obligatory and fiscal character of the tax was stressed; the tax had to be paid to the provincial treasury against a delivery receipt, apparently in opposition to whoever insisted on its voluntary character. In the tradition of the minimum tax threshold of 5 oxen, the mention of al-Zuhrî along with the Umayyad caliph ‘Umar Ibn ‘Abd al-‘Azîz is suggesting that there was an attempt to reaffirm the Medinan pratice and to give historical relevance and religious legitimization to the caliphal taxation by making a reference to the rules instituted by Muḥammad and the first caliphs. 50The Islamic taxation system must be seen as an attempt of the nascent Medinan polity to extend its political authority and religious message over a tribal society by managing the distribution of booty and charity. Nonetheless, it was mainly a product of the empire, derived from the conquests, and eventually detailed later by statemen in administrative handbooks (the Kitâb al-kharâj of Abû Yûsuf, d. 182/798, or Qudâma b. Ja‘far, d. 337/948, see Ben Shemesh, 1965), and by religious scholars seeking to define imperial administration in Islamic terms (like in the Kitâb al-amwâl of Abû ‘Ubayd al-Qâsim). 51In this systemization process, the traditions about the niṣâb on cattle transmitted by the Ibâḍis represents an « unsuccessful opinion », which was abandoned by the prevailing doctrine accepted by both Sunnis and Shiites. The attempt of al-Zuhrî and ‘Umar b. ‘Abd al-‘Azîz to reaffirm the « real » (or allegedly real) Medinan practice was minimized by the growth of Prophetic traditions affirming the contrary doctrine fixing the amount of the niṣâb on cattle to 30 head. Conflicting doctrines about the niṣâb on cattle existed until the 8th century, a fact that can be clearly detected by the analysis and comparison of parallel traditions. In this respect, the ancient Ibâḍî sources, which preserved several « unsuccessful traditions » represent an important field for studying the development of Islamic jurisprudence in the early centuries, along with its interaction with custom, local and administrative practice. Ersilia Francesca Pour une comparaison du droit ibâdite et du droit sunnite à Baṣra : le cas de la zakât sur le bétail p. 45-61
Posted on: Mon, 01 Sep 2014 10:37:53 +0000
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