Alms and the Sunni Shi'a Split
As many of you no doubt know, Islam, as with any other religion I can think of, makes the giving of alms and charity a central requirement of the faith. Concern for the poor, the orphan, the wayfarer, etc. is repeated countless times in the Qur'an, and Muslims, both liberals and conservatives, with ample justification point proudly to these verses as evidence of Islam's humanistic values, leading us all to the conclusion that not all that takes the name of Islam in the modern world is evil and not all is good either (I've written plenty on the bad stuff too) which you'd think is obvious but not from the blogosphere it's not.
Anyway, what I thought I'd talk about today was the way in which Islam's requirements about alms are read so differently in the two major branches of the faith, and how that difference, articulated in doctrine, really owes its origins to the fundamental institutional and structural differences between the two branches.
The primary Sunni position is that the requirement of zakat is the vehicle through which to fulfill the requirement of alms. While the term is repeated throughout the Qur'an, the primary source of the rules for zakat arise in the Prophetic Sunna, which require a 2.5% annual tax on all the gold, silver, wheat, dates and barley I think that a person owns to be given to the poor. So Sunnism sort of looks at this, sees "gold" and "silver" and analogizes to currency using an established tool known as qiyas, or analogy, and hence we have a 2.5% tax effectively on a person's net worth.
The Shi'a don't do this, they say gold and silver and dates means precisely that--gold and silver and dates. A house isn't gold, it's a house. A dinar isn't gold, it's a dinar. And so the zakat requirement, for those of us who don't hold much of our wealth in barley anyway, is effectively read out of the text. Basically, we Shi'a don't pay zakat.
Instead, the Shi'a derive the requirement for alms from another source, a Qur'anic verse that says that of the "spoils" that one receives, one fifth must go to God and His Prophet, and relatives and needy and orphans and wayfarers. Sunnis read that to mean "spoils of war", meaning war booty, and thus since most of us don't actually have much war booty these days, the Sunni requirement of the fifth, the khums, disappears. But, the Shi'a say, "spoils" means much more, in fact the right translation is "treasures" and it means profits, winnings, earnings beyond necessary expenses, all of these are your treasures. So it's not 20% of net worth, it's 20% of what you have received any given year over what you actually need (and they tend to be quite liberal on defining needs), and it goes into two camps--to the Messenger, or his descendant the Hidden Imam, the Mahdi who descends directly from the Prophet and is the inheritor of his Mantle, and to the needy (rules there on who in particular, but that's not the point for now). Now of course the Imam isn't here, so who takes the Imam's share of this khums? Well naturally the juristic authorities, who have the institution that defines the shari'a during the Imam's absence, the clerics known as the marja'iyya.
Now if you pay excessive attention to what the authorities say to justify these positions, the actual doctrine, something I feel that all too many of my colleagues do in law school, then you get an explanation that should give you pause. Ah, the Shi'a say, we don't have analogy as a source, we can't go off and say "gold" means "currency", the Sunnis do that (a story will then be recited to you involving Abu Hanifa, eponym of the Sunni Hanafite school, and Ja'far al-Sadiq, Shi'a Islam's Sixth Imam, which will prove conclusively how stupid Abu Hanifa is in accepting analogy). And that's why zakat is so narrow.
But the thing is, the other verse is read precisely analogically by the Shi'a to encompass far more than its terms. The Shi'a will deny this, they will say "spoils" is not analogized to "treasures" in fact it means "treasures", whereas "gold" means the element. And "Messenger" well clearly giving to the Imam is giving to the Messenger effectively, and giving to the jurists is by definition giving to the Imam, we call it the portion of the Imam, sahm al-Imam, they hold it for him and exercise discretion over it per his authority, so no analogy here.
And this is the type of esoteric debate that jurists love, and so many folks studying this stuff really enjoy. What fits within the definition of a word or phrase, the nass? What is analogized from it, the qiyas? Is "treasures" from "spoils", or is it encompassed within? What is the 'illa, the ratio, for the terms "gold" and "spoils" if we are going to analogize. Everyone knows that there is no certainty to the answer to any of these questions, but people really enjoy to play in that muddle quite a bit.
And it's fine that people like this stuff, I was too dismissive in earlier posts, an advantage of this blog is it helps refine my thinking. People are allowed to care, everyone has their own perspective. But I think it's fair to say that most American lawyers looking at this from a US trained legal perspective in this era, what I call our post-Realist age, would think "what a bunch of transcendental nonsense. You can expand words through making the definition broader, or you can work through analogy, it gets you to the same result, who cares how you do it. This distinction isn't a real one, the real question is do you want text X to cover situation Y, the rest of it is meaningless, no matter what the cleric says, or thinks he's saying, there's only one real issue at stake, which is should X cover Y. Period."
Again, it's one perspective, not by any means the only one, but one I think we teach our law students in normal law classes (where we would never take this kind of parsing very seriously) and then sort of expect them to unlearn in Islamic law, which as a result only adds to the perceived exoticism of Islam. Ah yes in our world we can pierce through these esoteric masks thrown up by judges to look at results, but not in the Muslim world! In Islam, it's different, the parsing matters to them, they've got genies and lanterns and harems and witches, they don't think like we do, we can't apply our legal reasoning techniques to that world, we have to treat the shari'a differently, we have to understand that in their world, law and morality are one, and in their world, these distinctions matter and therefore to understand them, we must adopt that method of thinking and drop all that we know.
I don't think anyone intends that message, but if one treats American law through an implicit Realist frame, and Islamic law through some sort of formalist paradigm where one actually takes seriously that ideas of what can be analogized to whom can be neutrally applied, well I'm sorry but to me that is patronizing. If it's meaningless to the lawyer in one context, it's going to be meaningless in the other. of course, one can approach the law through some Dworkinian model and show how moral understandings lead to definable conclusions in both cases, that's okay too, I don't mind if someone says I reject your definitions of law and I have this other model I apply everywhere. I do mind when, if someone teaches UCC law, my field, they make frequent references to practice and explain why particular readings of code provisions work better in the real world and then that same student walks into an Islamic law classroom of that same professor, and it's all about lexical structures and what a word can mean strictly.
And it's entirely unnecessary. As a Realist, I can look straight at this and say there is no reason under the sun that (a) the Shi'a have to read "gold" strictly to mean an element while reading "spoils" expansively and (b) the Sunnis have to analogize "gold" to "money" but do not analogize "spoils" to "profits". Anything any cleric says about lexical structures and definitions and ratios and anything else can be ignored, it's just a smokescreen. Something else is going on. What is that?
Well, quite simply, the Shi'a have an institutional religious structure, and the Sunnis don't. If you wanted to analogize the word "Messenger" to refer to any absolute authority in Sunnism today, you can't find one. So the verse which requires giving to the poor, but to the person in charge as well, turns out not to be helpful to your average Sunni, and it's read narrowly to refer to what to do with spoils of war, which nobody has anymore.
Go to the Shi'a side, and the self financing of the juristic structure is the sign of its strength. What enables Sistani to say what he wants is that he doesn't need the Iraqi state to fund him, he gets his money through the 20% tithe. Of course he doesn't run off and buy a Mercedes with it, of course the poor are fed, but the seminaries are also maintained, students given small sums, etc. The money guarantees independence and power. And so it is fundamental then that almsgiving be tied in some way to the authority if it is to retain the power it has through the independent financing. Thus, the khums verse means more, and the zakat requirements, which involve independent giving, are basically distinguished out of existence.
HAH
Anyway, what I thought I'd talk about today was the way in which Islam's requirements about alms are read so differently in the two major branches of the faith, and how that difference, articulated in doctrine, really owes its origins to the fundamental institutional and structural differences between the two branches.
The primary Sunni position is that the requirement of zakat is the vehicle through which to fulfill the requirement of alms. While the term is repeated throughout the Qur'an, the primary source of the rules for zakat arise in the Prophetic Sunna, which require a 2.5% annual tax on all the gold, silver, wheat, dates and barley I think that a person owns to be given to the poor. So Sunnism sort of looks at this, sees "gold" and "silver" and analogizes to currency using an established tool known as qiyas, or analogy, and hence we have a 2.5% tax effectively on a person's net worth.
The Shi'a don't do this, they say gold and silver and dates means precisely that--gold and silver and dates. A house isn't gold, it's a house. A dinar isn't gold, it's a dinar. And so the zakat requirement, for those of us who don't hold much of our wealth in barley anyway, is effectively read out of the text. Basically, we Shi'a don't pay zakat.
Instead, the Shi'a derive the requirement for alms from another source, a Qur'anic verse that says that of the "spoils" that one receives, one fifth must go to God and His Prophet, and relatives and needy and orphans and wayfarers. Sunnis read that to mean "spoils of war", meaning war booty, and thus since most of us don't actually have much war booty these days, the Sunni requirement of the fifth, the khums, disappears. But, the Shi'a say, "spoils" means much more, in fact the right translation is "treasures" and it means profits, winnings, earnings beyond necessary expenses, all of these are your treasures. So it's not 20% of net worth, it's 20% of what you have received any given year over what you actually need (and they tend to be quite liberal on defining needs), and it goes into two camps--to the Messenger, or his descendant the Hidden Imam, the Mahdi who descends directly from the Prophet and is the inheritor of his Mantle, and to the needy (rules there on who in particular, but that's not the point for now). Now of course the Imam isn't here, so who takes the Imam's share of this khums? Well naturally the juristic authorities, who have the institution that defines the shari'a during the Imam's absence, the clerics known as the marja'iyya.
Now if you pay excessive attention to what the authorities say to justify these positions, the actual doctrine, something I feel that all too many of my colleagues do in law school, then you get an explanation that should give you pause. Ah, the Shi'a say, we don't have analogy as a source, we can't go off and say "gold" means "currency", the Sunnis do that (a story will then be recited to you involving Abu Hanifa, eponym of the Sunni Hanafite school, and Ja'far al-Sadiq, Shi'a Islam's Sixth Imam, which will prove conclusively how stupid Abu Hanifa is in accepting analogy). And that's why zakat is so narrow.
But the thing is, the other verse is read precisely analogically by the Shi'a to encompass far more than its terms. The Shi'a will deny this, they will say "spoils" is not analogized to "treasures" in fact it means "treasures", whereas "gold" means the element. And "Messenger" well clearly giving to the Imam is giving to the Messenger effectively, and giving to the jurists is by definition giving to the Imam, we call it the portion of the Imam, sahm al-Imam, they hold it for him and exercise discretion over it per his authority, so no analogy here.
And this is the type of esoteric debate that jurists love, and so many folks studying this stuff really enjoy. What fits within the definition of a word or phrase, the nass? What is analogized from it, the qiyas? Is "treasures" from "spoils", or is it encompassed within? What is the 'illa, the ratio, for the terms "gold" and "spoils" if we are going to analogize. Everyone knows that there is no certainty to the answer to any of these questions, but people really enjoy to play in that muddle quite a bit.
And it's fine that people like this stuff, I was too dismissive in earlier posts, an advantage of this blog is it helps refine my thinking. People are allowed to care, everyone has their own perspective. But I think it's fair to say that most American lawyers looking at this from a US trained legal perspective in this era, what I call our post-Realist age, would think "what a bunch of transcendental nonsense. You can expand words through making the definition broader, or you can work through analogy, it gets you to the same result, who cares how you do it. This distinction isn't a real one, the real question is do you want text X to cover situation Y, the rest of it is meaningless, no matter what the cleric says, or thinks he's saying, there's only one real issue at stake, which is should X cover Y. Period."
Again, it's one perspective, not by any means the only one, but one I think we teach our law students in normal law classes (where we would never take this kind of parsing very seriously) and then sort of expect them to unlearn in Islamic law, which as a result only adds to the perceived exoticism of Islam. Ah yes in our world we can pierce through these esoteric masks thrown up by judges to look at results, but not in the Muslim world! In Islam, it's different, the parsing matters to them, they've got genies and lanterns and harems and witches, they don't think like we do, we can't apply our legal reasoning techniques to that world, we have to treat the shari'a differently, we have to understand that in their world, law and morality are one, and in their world, these distinctions matter and therefore to understand them, we must adopt that method of thinking and drop all that we know.
I don't think anyone intends that message, but if one treats American law through an implicit Realist frame, and Islamic law through some sort of formalist paradigm where one actually takes seriously that ideas of what can be analogized to whom can be neutrally applied, well I'm sorry but to me that is patronizing. If it's meaningless to the lawyer in one context, it's going to be meaningless in the other. of course, one can approach the law through some Dworkinian model and show how moral understandings lead to definable conclusions in both cases, that's okay too, I don't mind if someone says I reject your definitions of law and I have this other model I apply everywhere. I do mind when, if someone teaches UCC law, my field, they make frequent references to practice and explain why particular readings of code provisions work better in the real world and then that same student walks into an Islamic law classroom of that same professor, and it's all about lexical structures and what a word can mean strictly.
And it's entirely unnecessary. As a Realist, I can look straight at this and say there is no reason under the sun that (a) the Shi'a have to read "gold" strictly to mean an element while reading "spoils" expansively and (b) the Sunnis have to analogize "gold" to "money" but do not analogize "spoils" to "profits". Anything any cleric says about lexical structures and definitions and ratios and anything else can be ignored, it's just a smokescreen. Something else is going on. What is that?
Well, quite simply, the Shi'a have an institutional religious structure, and the Sunnis don't. If you wanted to analogize the word "Messenger" to refer to any absolute authority in Sunnism today, you can't find one. So the verse which requires giving to the poor, but to the person in charge as well, turns out not to be helpful to your average Sunni, and it's read narrowly to refer to what to do with spoils of war, which nobody has anymore.
Go to the Shi'a side, and the self financing of the juristic structure is the sign of its strength. What enables Sistani to say what he wants is that he doesn't need the Iraqi state to fund him, he gets his money through the 20% tithe. Of course he doesn't run off and buy a Mercedes with it, of course the poor are fed, but the seminaries are also maintained, students given small sums, etc. The money guarantees independence and power. And so it is fundamental then that almsgiving be tied in some way to the authority if it is to retain the power it has through the independent financing. Thus, the khums verse means more, and the zakat requirements, which involve independent giving, are basically distinguished out of existence.
HAH
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