We have taken up this issue for the purpose of presenting the point of view of Ash-Sheikh Muhammad Abi Zahrah (Rahimahullah) in regards to generalising or extending the Fareedah (obligation) of Az-Zakaah upon non-Muslims in the same way that it is obligatory upon Muslims. This is as a substitute for the Jizyah that is obligatory upon them.
Ash-Sheikh Abu Zahrah states the following in the paper drafting the law of Zakaah which was presented to the Egyptian House of Representatives in the year 1367 Hijri (1947):
"Zakaah in origin is not obligatory except upon the Muslim and it is not obligatory upon any non-Muslim except with some of the Shi'ah. However, it is necessary for the Islamic States to meet the need of those in need from amongst the non-Muslims. So the Islamic social solidarity is spread and not restricted to one faction and not another because it is a mercy from Allah and the Rahmah (mercy) covers all... And 'Umar (ra) used to spend upon the non-Muslims from the Jizyah revenues.
And now the Jizyah is not obliged and so nothing remains except for the Zakaah to be obliged upon them in accordance with the law of equality. That which is taken from them returns to them and above that the Zakaah is a general Sharee'ah in respect to all the revealed religions and our non-Muslim neighbours are from those who belong to a revealed religion" (The contract of Adh-Dhimmah in the Islamic legislation, Muhammad 'Abdul Haadi Al-Maturdiy, p230).
I say: Irrespective of the ways mentioned by Ash-Sheikh Abu Zahrah to support his suggestion of extending the Fard of Az-Zakaah to cover non-Muslims from amongst the Islamic subjects, the question that concerns here is: Is it permissible for the Islamic State if it views that there exists a Maslahah (interest/benefit) to contract the Dhimmah with a people from amongst the different non-Islamic peoples upon the basis of obliging the Zakaah upon them in equality with the Muslims whilst considering it as a replacement for the obliged Jizyah and if its naming was changed from Jizyah to Zakaah or Sadaqah?
The answer to this question is: That the majority of the Fuqahaa have permitted that for the Imaam (leader) when the Maslahah calls for that although there are differences in the details of this Mas'alah and it does not fall within the scope of our presentation to delve into them.
It was mentioned in 'Fat'h-ul-Qadeer' of the Hanafi Fiqh, in relation to the discussion about the Jizyah that is put upon the Ahlu-dh-Dhimmah by way of treaty or agreement that: "Jizyah is laid down by mutual consent/agreement and by treaty upon it, so it is evaluated according to what is agreed and it is not added to keep it from excuse. Its origin (i.e. this kind of Jizyah) is the Sulh (treaty) of the Messenger of Allah صلى الله عليه وسلم with the people of Najraan upon the payment of 200 Hullah (an amount) annually and they were Christians residing close to Yemen.
Abu Daawood recorded from 'Abdullah Ibn 'Abbaas (ra) that he said: 'The Messenger of Allah صلى الله عليه وسلم made a treaty with the people of Najraan upon them paying 2000 Hullah, half of it in the month of Safar and the other half in Rajab' (Abu Daawood 3041, 227/3, refer to: 'Jaami' Al-Usool, 636-637/2). And 'Umar (ra) made a treaty with the Christians of Bani Taghlib upon the basis of taking from every one of them double of what is taken from the Muslims from the obligatory property/wealth (Maal), and so he committed to that... (Fat'h ul-Qadeer: 44/6, refer to the report of Bani Taghlib in Kitaab Al-Kharaaj of Abi Yousuf 129-130 and in 'Kitaab ul-Amwaal' of Abi 'Ubaid, p20).
Note: In the Haashiyah of Ibn 'Aabideen: 432/3: "Taghlib Bin Waa'il Bin Rabee'ah: A people who became Christian in the time of Jaahiliyah and they lived close to the Roman lands. They abstained from paying the Jizyah so 'Umar made a treaty upon the basis of double our Zakaah. So although it is Jizyah in meaning it is not observed by its conditions but rather the conditions of Az-Zakaah and its conditions..."
The Hanabalah have concurred with the Ahnaaf in regards to that and so the Zakaah is taken from the Dhimmi person for example based on what has been said... Refer to Al-Mughni of Ibn Qudaamah, 591-592/10. As for the Shaafi'iyah then they said: And if the Jizyah is taken with the naming of the Zakaah and measurement of Zakaah it is observed according to the conditions of the Jizyah so it is not taken from the Maal (property) of a person or from a boy for example... Refer to: Al-Mughni Al-Muhtaaj 202/4).
In regards to this I say: When the agreement proceeds upon the basis of what is contracted upon in the Dhimmah is taken like (for example) the amount that is taken from the Muslims in Zakaah, not more and not less. Then this is permitted due to the Hukm (ruling) that the Jizyah of the type that is contracted by way of mutual consent and treaty is only observed in accordance to that which has been agreed upon.
Ibn Rushd discussed this type of Jizyah and stated: "It is that which is donated so that they are refrained from (i.e. fighting). And this does not have a timing (i.e. defined limitation) in regards to the Waajib (obligatory), or who it is obligatory upon and when it necessary to be paid. Rather all of this is referred back to the agreement that has occurred between the Muslims and the people of treaty" (Bidaayat-ul-Mujtahid, Ibn Rushd 101/6 and refer to Zaaad Al-Ma'aad of Ibn ul-Qayyim: 643/3).
I say that this is Al-Jizyah As-Sulhiyyah (Jizyah of treaty) as well based on these words, when the agreement is completed on the premise that runs according to the basis of the rules of the Shar'i Zakaah that applies to the Muslims. Therefore this is a legal/legitimate matter.
It was stated in 'Al-Muhadh'dhab' from the Shaafi'iy Fiqh: "If a people abstain from giving the Jizyah with the name of Jizyah and say: We will give it with the name of Sadaqah (i.e. Zakaah) and the Imaam viewed that it (Jizyah) can be taken with the naming of Sadaqah, this is permissible because the Arab Christians said to 'Umar (ra) that: We will not give what the non-Arabs give but rather take from us with the naming of Sadaqah like the naming given to that which is taken from the Arabs! So 'Umar (ra) refused this and said: I do not approve except the Jizyah for you. So they said: Take from us double that which is taken from the Muslims. So he refused this from them (as well). They wanted to be attached to the Daar ul-Harb (land of war) so Zur'ah Bin Nu'maan or Nu'maan Bin Zur'ah said to 'Umar: Bani Taghlib are Arabs and they possess force so take from them (these Christians) like what they (Bani Taghlib) have given and don't let them join with your enemy. So 'Umar made a treaty with them upon double the amount of the Zakaah.." (Al-Muhadh'dhab, Ash-Sheeraaziy: 250251/2).
It was stated in Al-Mughni Al-Muhtaaj in relation to this: "And he took the Jizyah using the name of Sadaqah and none of the Sahaabah objected to him (i.e, 'Umar) and so it was and Ijmaa' (consensus) and a permanent Dhimmah was contracted for them... And the most correct view is that there is no difference in regards to this between the Arabs and non-Arabs... He then said: And its doubling is not specified..." (Mughni Al-Muhtaaj: 251-252/4).
The following was stated in Ibn Qudaamah's Al-Mughni of the Hanbali fiqh: "Banu Taghliba Bin Waa'il are from the Arabs by way of Rabee'ah Bin Nizaar. In the times of Jaahilliyah (pre-Islaam) they became Christians so 'Umar invited them to give the Jizyah but they refused and were adamant about it! They said: We are Arabs! Take from us like you take from amongst yourselves with the naming of Sadaqah. So 'Umar said: I will not take Sadaqah from a Mushrik. So some of them aligned themselves with the Romans. Then Nu'maan Bin Zur'ah said: O Ameer Al-Mu'mineen these people possess a strength and power and they are Arabs and resist the Jizyah so don't let your enemy be aided (strengthened) by them. Take the Jizyah from them with the naming of Sadaqah. So 'Umar looked into their demands and agreed to make it double upon them. So this became settled by 'Umar and none of the Sahaabah opposed him and as such it became an Ijmaa' (consensus). And the Fuqahaa after the Sahaabah held this view and they included: Ibn Abi Laylaa, Al-Hasan Bin Saalih, Abu Haneefah, Abu Yousuf, Ash-Shaafi'iy...." (Al-Mughni. Ibn Qudaamah, 590/591/10).
So the above illustrates what the State can do when observing different circumstances and sensitivities whilst it carries Islaam and invites foreign nations and people to enter into it and under its rule so as to experience the great qualities of Islaam which in time will lead them to desire Islaam and to enter into it.
It is an obvious fact that it is not from the legitimate ideals to cause harm to the Ahlu-dh-Dhimmah whether this is by a word or an act. Indeed the Fuqahaa have written in respect to the Dhimmi: "It is prohibited (Haraam) to backbite the Dhimmi like a Muslim because he has been contracted with the Dhimmah, he has obligatory rights that which we have so as it is prohibited to backbite a Muslim it is likewise prohibited to backbite him. Indeed they said: The oppression of the Dhimmi is worse!" (Haashiyah, Ibn 'Aabideen, 386/3).
Just as they mentioned that the Muslim is prevented from saying to the Dhimmiy: O Kaafir! (Disbeliever) or O Enemy of Allah! So as to cause harm or offense to him by use of these expressions and the Muslim deserves a discretionary punishment (Ta'zeer) upon doing this (Haashiyah, Ibn 'Aabideen, 418/3).
The warning in respect to causing abuse to the Ahlu-dh-Dhimmah in a general manner falls under the forbiddance of the Nabi صلى الله عليه وسلم in regards to oppressing them or lessening from them in an absolute manner. This is according to his صلى الله عليه وسلم's statement:
"Indeed, verily whoever oppresses a person under covenant, lessens from him, burdens him above his capabilities or takes something from him without sincere motivations then I will be his opponent (bringing proof against him) on the Day of Judgment!" (Sunan Abu Daawood 3052 related from a number of the companions of the Nabi صلى الله عليه وسلم and Al-Albaani verified it as Saheeh in his book).
Upon this understanding if the Islamic State views that non-Muslims have the desire to enter into the Dhimmah of the Muslims on the basis that it is not with the wording of 'Al-Jizyah' due to them finding in it and the money that is committed to it as something that belittles them or lessens them in a manner degrading their right or what they deserve. Then I say: When the Islamic State views this situation then there is no harm in accordance to the Maslahah (benefit/interest) to replace the word 'Jizyah' with the wording of 'Zakaah' built upon the wishes of the non-Muslims themselves and to apply equally upon them and the Muslims the rulings of Zakaah equally even if the consideration of this commitment differs between the two parties in respect to the Zakaah.
The Muslims commit to the Zakaah on the basis that it is an indispensable 'Ibaadah (act of worship) from amongst the acts of worship.
Whilst the non-Muslims commit to it upon the basis that it is a Dareebah (tax) from amongst the taxes that are necessary to be given.
Additionally, the Ijmaa' of the Sahaabah in relation to replacing the Jizyah with Zakaah in regards to Bani Taghlib, is the best Daleel (evidence) for the legality of this course of action. (Note: In the year 89 Hijri in the time of Al-Waleed Bin Abdul-Maalik a contract of Dhimmah was made with non-Arabs called 'Al-Jaraajimah' (In Shaam/near Lebanon) upon conditions and in relation to what relates to our discussion the following was mentioned in the contract: "That they will be taken from in regards to their trade and property in the same way as the Muslims are taken from"... and the conditions also stated: "That they can settle anyway that they wish to within Ash-Shaam...and that they have to wear the clothing of the Muslims...!" Futooh Al-Buldaan, Al-Baladhariy p165-166).
The above is a draft translation from the book: 'Al-Jihad wa'l Qital fi as-Siyasa ash-Shar'iyya' by Sheikh Dr. Muhammad Khayr Haykal.