Non- Muslims
and the Law of Social Security in Islam
By
Shaykh Shawkat Husayn
The laws of social security in Islam do not exist in
codified form. But they consist of the injunctions of the
Quran, hadith, precedents of the 'Righteous Caliphate'
and the views of the jurists deduced from the original
sources through qiyas and ijtihad. In order
to examine these laws of social security with reference
to non-Muslim subjects of an Islamic State, one should
have recourse to these sources.
Before coming to the subject proper an appreciation of
the contemporary concept of social security and its
evolution is necessary. The term 'social security'
denotes the programmes established by law to provide for
the economic security and social welfare of the
individual and his family.[1]
Nowadays these programmes have assumed the shape of
old-age pension, unemployment benefit, sickness benefit,
death grant, disablement allowance, family allowance,
etc. Some European authors try to trace the evolution of
these laws to some practices of the late medieval period.
But the truth is that Europe first got acquainted with
the laws of social security at the end of the last
century only. Before 1883, the functions that now come
under social security law, were discharged by private
arrangements made chiefly by co-operative movements among
workers.[2]
The practices considered to be the primitive forms of
this concept have no relation to it. One of the instances
referred to is the practice at some places in England
where local magistracy was empowered in 1531 to licence
the aged, sick and crippled persons to beg in their
neighbourhood.[3]
Another statute referred to is that of 1536 which
provided for organization of relief of those unable to
work through voluntary funds.[4] The attitude of the
central government towards these local initiatives was
nothing more than that of supervision and advice.[5]
The first instance of social security laws in Europe
can be seen in the scheme of compulsory State insurance
which was introduced by Bismark in Germany in 1883.[6]
Germany was followed by Austria and some other countries.
By the beginning of this century most of the European
countries initiated promulgation of laws in this
direction. In America, except the Workmans Compensation
Act passed in 1908, no significant legislation was
enacted until 1935 when the Social Security Act was
passed by the Congress.[7]
Contrary to the European tradition, in Islam, right
from the beginning, fulfillment of the basic needs of the
subjects was conceived to be the concern of the State. Zakat
is the first institution of social security in Islam.
Payment of 2l1/2 percent of his/her savings of the zakat
fund is one of the fundamental duties of a Muslim. The
State is responsible to collect zakat and make
arrangements for its distribution. Non-payment of it is
tantamount to waging war against the State. The Caliph
Abu Bakr subjugated by force all those who refused to pay
it.
Non-Muslims are also included in one of the categories
of the recipients of zakat.[8] While prescribing
laws for the distribution of zakat, the Quran
includes them among those 'whose hearts are to be
conciliated'.
Some jurists are of the view that this clause is
inoperative after the time of the Prophet.[9] Their views
are based on a precedent of 'Umar ibn al-Khattab who got
it cancelled by Abu Bakr towards some recipients of this
category.[10] Some prominent scholars of the past and
present are of the view that this injunction is operative
even today.[11] It must be noted here that this share of
the people belonging to this category is not on account
of their inability to meet their material needs but for
'reconciliation' of their hearts. There are also some
reports which suggest that the needy among the
non-Muslims were also helped from the zakat funds
during the early days of Islam.[12]
Majority of scholars hold it to be unlawful. Their
opinion is based on the precept of the Prophet who
directed Mu'adh to take zakat from rich Muslims
for distributing it among poor Muslims.
Some present day scholars also hold the view that poor
and destitute among non-Muslims can be helped out of the zakat
funds.[l3] It is reported that 'Umar interpreted the word
masakin in the verse "Alms are for the poor and the
needy (masakin) and those employed to administer
the funds...." as non-Muslims.[14] Besides zakat,
the Quran provides for collection of sadaqat.
Although sadaqah is not an obligatory duty like
zakat, the Quran has given great Importance for it.
Emphasizing the payment of sadaqah, the Quran goes
to the extent of declaring, "You will never attain
piety until you spend of what you love."[15]
The difference between zakat and sadaqah
is that while the former is to be paid at a fixed rate,
no such rate has been prescribed for the latter, In the
words of al-Sayyid Qutub, "The rich are obliced to
contribute as much as is sufficient to meet the
necessities of the needy.... There is no restriction or
condition except that it should be sufficient for their
needs".[16] The guidance of the Quran to the
believers as to what they should give in the way of Allah
is 'the superfluity.'[17] So far as meeting the needs of
non-Muslims from the funds of sadaqah is concerned, most
of the scholars' view is positive. Elaborating the
position of the Hanafis, al-Hidayah states, "Our
doctors base their opinion regarding this point on the
precept of the Prophet (S) who has ordained that alms
should be bestowed upon persons of every religion
indiscriminately. And they also argue that had not there
been the Prophet's directions to Mu'adh, bestowing of zakat
on dhimmis would have been deemed legal".[18]
Collection and distribution of sadaqah along with zakat
are among the fundamental duties of the government.[19]
If the funds raised out of zakat and sadaqah are
insufficient to meet the needs of the poor, the State can
Impose other taxes to realize funds for this
purpose.[20] While prescribing the rules of zakat
and sadaqah, the Quran emphasizes that the needs
of those who are economically hard-pressed and unwilling
to ask for help out of self-respect should be given
priority.[21] Thus it is clear that these funds are to be
spent primarily to relieve people from immediate
hardships without creating a class of social
parasites.[22] Besides Quranic institutions of zakat
and sadaqah, there are several Prophetic
traditions which hold the State responsible for the
fulfillment of the basic needs of all its subjects. The
Prophet (S) is reported to have said : "I am the
guardian of a person who has no guardian".[23]
Another hadith declares: "The State is the
guardian of a person who has no guardian".[24]
The guardianship, mentioned in the above traditions,
is of a general nature which necessarily implies the
fulfillment of basic needs.[25] In another tradition the
Prophet (S) is reported to have told: "The son of
Adam has basic rights for three things a house to live
in, a piece of cloth to cover his body, a loaf of bread
and water".[26] In the above traditions there is no
reference to a particular community. By referring to 'the
son of Adam' any ambiguity in defining the scope of these
traditions has been removed. Thus it is obvious that the
Islamic State is bound to provide for the basic
necessities of its people irrespective of their religion.
Examination of the extent of applying these injunctions
of the Quran and Sunnah during the period of
Righteous Caliphate, will further clarify the scope of
their implementation. Keeping in view the topic of
discussion, the injunctions and precedents related to
non-Muslims only are cited here. The earliest instance of
fulfillment of basic necessities of non-Muslims during
this period can be seen in one of the treaties concluded
by the Muslim general Khalid ibn al-Walid during the days
of Abu Bakr. The treaty reads:
"And I have granted the right that if an old
person becomes incapable of working or is suffering from
ill health or is a destitute after being rich, so much so
that his co-religionists start giving him alms, then his jizyah
will be remitted; he and his family will receive the
allowance for maintenance from public treasury as long as
he lives in the Islamic State".[27] Explaining the
legal importance of the dhimmi treaties, of which
the above extract forms a part, Majid Khadduri says:
"The dhimmi treaties, it will be recalled,
were in the form of constitutional guarantees from the
moment dhimmi communities ceased to be separate
entities. Finally Muslim authorities tended to regard
their contractual understandings as religious obligations
which should be strictly observed".[28]
Other instances of observance of social security laws
can be found in the following practices of the Righteous
Caliphs. Before going through the practices, it must be
made clear that the nature of these practices was not
that of compassion shown by some kings or rulers of the
past towards some of their needy subjects. The exercise
of the kings was in the nature of royal bounty rather
than the realization of the rights of their subjects.[29]
The Righteous Caliphs on the other hand considered
these functions as discharging their duties and
fulfilling the rights of their subjects, The legal
significance of these can be gathered from the following
words of an eminent jurist al-Hasan al-Basri. While
answering the questions of a ruler regarding some
precedents of the Pious Caliphs, he stated: "You
have only to follow what your predecessors did".[30]
Other Muslim jurists have also referred to these as
the basis of their argument while giving their opinions.
The Kitab al-kharaj of Imam Abu Yusuf is replete with
such references.
The Caliph 'Umar, on seeing an old Jew begging,
brought him to his house. He gave him some cash and
ordered the treasury officer that such people who could
not earn their living should be granted stipends from the
public treasury.[31] Once, seeing some non-Muslim lepers
on his way back from a journey, he issued orders that
they should be provided maintenance from the State
funds.[32]
In a letter addressed to Adi ibn Artah, 'Umar ibn 'Abd
al-'Aziz wrote: "Be kind towards dhimmis. If
you find some of them old or helpless, give maintenance
to them".[33]
The above-mentioned instances bear clear evidence as
to how Islamic Shari'ah assures thee basic
material needs of the non-Muslim subjects of an Islamic
State. The legal guarantees of the material requirements
of the citizens, with which the West became acquainted
only in the beginning of this century, were given by
Islamic Shari'ah fourteen hundred years ago. This
attitude towards religious minorities is of great
importance in view of the fact that such minorities are
deprived of even basic human rights in the so-called
welfare states of the twentieth century.