By Shaykh Haider Hobbollah

Translated by Faisal H and Sayyid Burair Abbas

What is well-known, rather which may even be a consensus among the Imami Shiites – in contrast to the majority of Muslim jurists, and Ibn al-Junayd al-Iskafi (d. 4th century Hijri) from the Imamiyyah – is that the share of orphans, the needy and the wayfarer mentioned in the verse of Khums belongs to Banu Hashim specifically, and does not include others. The khums shares are six in total according to popular opinion, among them: the first three of them are for the Imam after the Prophet ﷺ, and the remaining three are for Banu Hashim to the exclusion of anyone else.^[1] Sayyid al-Khoei has elaborated that Khums is the right of the Prophet ﷺ and his relatives, so it is likened to personal property, as it does not benefit the general Muslim population.

In the modern era, there was a big discussion among the jurists regarding the share of Banu Hashim: does it mean that they own half of the Khums, such that we have to deliver the tithes to them as one would deliver money to its owner? Or does it mean that all the shares of Khums are for the Imam or his deputy, but the Hashemites are considered among the principal recipients as per Islamic law? This is the research known today as tashīm (ownership) or banking. But all agree that the share of Banu Hashim is fixed, and they do not reject it; the point of the matter is that some of them believe the Imam has discretion in distributing its expenditure for Bani Hashim, such that the Khums is handed completely over to the Imam and he performs the distribution process to the Hashemites and others.

The idea that I would like to focus on here is not related purely to the share of Banu Hashim, but rather to the following: Is the Khums restricted to the Imam and Banu Hashim, as is the prevailing opinion? Do the last three categories in the Khums verse (the orphans, the needy, and the wayfarer) refer to the Hashemites in particular, or all of the orphans, needy, etc.?

The view I have reached – and the knowledge [regarding the truth] is with God – is that we are faced with two points:

1 – The titles (the orphans, the needy, and the wayfarer) specified as beneficiaries of Khums or its shares are not specific to Banu Hashim, but rather are generalized to the orphan, the needy and the wayfarer, in keeping with the comprehensive import of the Qur’anic verse. This means denying the restriction of the Khums to the Imam and Banu Hashim by the traditional method conveyed in Imami jurisprudence. And we do not mean by this that the Banu Hashim do not receive any of the Khums or that they are not beneficiaries of it at all. Rather, we mean that the Shari’ah did not limit the Khums to the Imam and Banu Hashim, neither in ownership nor in expenditure; rather from the very outset, it is considered that the Khums belongs to God, His Messenger, his close relatives, and the generality of orphans, the needy, and the wayfarers. And this point is my subject of discussion here. 

2- The title (dhu al-qurba) mentioned in the noble verse:

A – If we say that it is specific to the appointed Imam, as may perhaps be the famous opinion among the Imamiyyah, then the result – after considering the above – is that there is nothing in the Khums called the share of Banu Hashim at all. Rather, they are simply an instance (misdaq) from its many instantiations, because they are Muslims and nothing else; God made it lawful for them to take from the Khums after He forbade them to take Zakat.

B – But if we say that the title “dhu al-qurbā” is intended to mean all of the relatives of the Prophet (Banu Hashim, or them plus Banu Al-Muttalib, not including Banu ‘Abd Shams, nor Banu Nawfal, or all of Quraysh, based on differences between Muslim jurists in this matter), as a group of Muslim jurists have opted for, especially the Shafi’is and some of the Imamis such as Ibn Al-Junayd, the result will be that Banu Hashim are one of the beneficiaries of the Khums. In this way, God compensated them for not being able to take Zakat, but without the Khums being restricted to them and the Prophet and the Imam. Therefore, instead of half of the Khums being for Banu Hashim – according to the division of the shares by six – one-sixth of the Khums will be for them only, because the Prophet takes the share of God and his share, the Imam takes the share of God and His Prophet after the Prophet’s demise, Banu Hashim take the share of dhu al-qurba, and the generality of (needy) people take the remaining three shares.

The above two assessments prove what we claim here: that the Khums was not confined to the Prophet, the Imam, and Banu Hashim, but rather Muslims are part of the shares of the Khums directly.

You may say to me: This result does not change anything, for in reality the Imam’s share is already spent in the interest of Muslims today.

And the answer: This is based on the traditional theory that the essence of the legislation of Khums has nothing to do with the Imam spending his share on the interests of Muslims, and this is something we are doing today based on a secondary ruling such as the law of obtaining the satisfaction of the Imam and other principles mentioned by the jurists.  In addition to that, the conclusion that we reached either negates the existence of any specificity of the full Khums for Banu Hashim, or it only affirms only one-sixth of the Khums for them instead of half of it. There is no difference in the conclusion, regardless of whether we say the share of the Imam is the property of the person of the Prophet and the Imam or that it is the property of the office of the Imamate.

This is my conclusion, and I will talk later about if the title of kinship is specific to the appointed Imam or if it is inclusive of relatives of the Prophet altogether. What is meant by kinship with the Prophet here? However, space does not allow us to address the two issues together now.

I can abridge the commentary here – as the subject has many details – by saying: the bases of the Imami jurists in their ruling here (that the last three categories in the verse of Khums are specific to Banu Hashim) is consensus and the narrations.

As for consensus: if we substantiate it before the advent of the Baghdadite school (I mean before al-Tusi, al-Murtada and al-Mufid), it is clearly only transmitted (madraki);^[2] now even if they should replace the term consensus with unanimity (al-tasalum), knowing that Ibn al-Junayd reportedly went against this view, how can one purport unanimity?! The marginalization of Ibn al-Junayd from the scene is a consequence of the Baghdadite School having some disagreements with him. Otherwise, ibn Junayd is one of the senior jurists and his personality and books are very important, according to the confession of the Hillah School, which restored his status after nearly two centuries of his rejection. This school of course is headed by Ibn Idris al-Hilli, the Muhaqiq al-Hilli and the Allama al-Hilli. We have discussed his case in some of its aspects in our book (Al-Ijtihad al-Maqasidi wa al-Manati), so refer to it.

Perhaps if the school of Ibn al-Junayd had led the religious seminaries at his time, the scene of Imami jurisprudence today would have been different on some levels. There is no evidence to presuppose that the interpretation of the Baghdadite School is the only criterion for right and wrong or for defining Imamate jurisprudence, such that we may ostracize a scholar in his ijtihad according to the reading of the Baghdadite School. How could we presuppose this while the Hillah School welcomed the views that it received from Ibn al-Junayd (notwithstanding, most of his books were lost because of his ostracization by the scholars of the Baghdadite school in the fourth and fifth centuries AH)?

In the latter-day, we have seen that many of the fatwas of Ibn al-Junayd were approved by later scholars; even Sayyid Ali al-Sistani and others have said that Ibn al-Junayd did not adhere to Qiyās, as the Baghdadite school accused him of doing; rather he was closer to the method of referring to the ethos of the Qur’an and examining the Hadith against this backdrop.

It is noteworthy that Ibn Al-Junayd believes that the share of Banu Hashim is fixed through the title (dhu al-qurba) in the verse, while the share of orphans, the needy, and the wayfarer is—according to him—for all Muslims who bear these qualities. He does not deny the share of Banu Hashim, but rather only restricts it and refutes the exclusion of non-Hashemites.

As for the narrations, what is remarkable is that they are all weak in their chains of transmission, and more than one has admitted this; they are about eight to ten hadiths, most of them mursal (disconnected); among them only about three narrations are found in the four primary Hadīth books (al-kutub al-arba’a), and all of them are weak in their chains.

Rather, nearly all of them are mursal (disconnected), and some narrations come from third-class sources, such as Tafsir al-Ayyashi (which includes two mursal narrations from among these ten narrations with no chain) and Risalat al-Muhkam wa al-Mutashabih, whose status as a narration is unknown, there being a long and well-known discussion among scholars about its history and source.^[3] For all these reasons, many of the scholars here have relied on rules of mending the chain (al-jabr al-sanadi), transmitted juristic custom (al-shuhrah al-manqulah), transmitted consensus (al-ijma’ al-manqul), unanimity (al-tasalum) and the likes.^[4] Of course, some scholars have authenticated – according to their views and theories in the science of Rijāl – the chains of transmission of two or three narrations here, despite their being mursal. Nonetheless, all these researches are weak.  The apparent acknowledgment of many, such as of Sheikh Baqir al-Irwani, is in the weakness of all the chains of transmission and that the basis of the ruling is supposed exigency and unanimity.

As for the claim of our professor – Sayed Mahmoud al-Hashimi – about the possibility of relying on the report of Sulaym bin Qays here, it is subject to discussion. Even if we ignore its chain of narrators, its import is not probative in this regard.^[5] Regarding what he has stated, may God have mercy on him, regarding how belief in Khums being specific to the position of Imamate renders the first categories exclusive to the Hashemites: it is also arguable. This claim that “the Khums is entirely reserved for the office of the Imamate” may be reconcilable with both the generalization hypothesis for the last three categories and the hypothesis of Khums exclusivization for the Hashemites. Therefore, why should it be used to favor the hypothesis of exclusivization for the Hashemites?

The office of Imamate does not necessitate depriving Banu Hashim of their right here at all, because of the possibility it was issued to confirm the Imam carrying the same right as the Prophet in this regard, not by virtue of the title of relatives (dhu al-qurba) in the verse, so pay attention. This is exactly the same as the claim that God compensates the Hashemites with khums, as it does not negate the proof of the khums for non-Hashemites, but rather proves no more than that the Hashemites have a share in it.

What further buttresses the conclusion we have exposited is not only the weakness of the chains of transmission of these reports that restrict the last three categories to the Hashemites, but the presence of opposing narrations to them. This suggests that the last three categories in the Khums verse is general to all Muslims, and not specific to the Hashemites. It is noteworthy that some of these opposing reports are authentic, like the narration of Muhammad bin Muslim and the narration of Rab’i.

Furthermore, perhaps the specification of the term (dhu al-qurba), entirely circumscribing the Prophetic progeny, weakens the possibility that the Prophetic offspring is also implied in the last three headings. Perhaps someone will see that these latter narrations – if their being contradictory is substantiated- are more fitting with the import of the Holy Book.

In order to further clarify and remove confusion, the expresssion “the Khums is for us” in many narrations from the Ahl al-Bayt should be taken out of the scope of evidence here, unless there is an additional indication, as many scholars have already acknowledged. This is especially the case given that these narrations could possibly mean exclusively the Imam and not all Banu Hashim, since the khums is entirely submitted to the Imam and he spends it per his discretion.

Rather, what most strengthens what we have mentioned regarding the interpretation of the last three categories in the verse is that according to the well-known view of the Imamiyyah, specification of the majority (takhsis al-akthar) is conisdered socially reprehensible.^[6] The verse of al-khums is just like the verse of al-fay’, and it bears a very clear general and comprehensive import for the latter three categories.^[7] The narrations aim to restrict this generality (in the verse) – even if only through legislative import (lisan al-hukumah) to reference Usuli terminology- and this matter is against ‘urf (customary usage). It is a reprehensible narrowing since it requires one to reduce “all the indigent” to “only the Hashemite indigent,” which is like narrowing down to a single part in a thousand.

In my estimation, this also weakens the strength of the narrations mentioned regarding this issue. The possibility of abrogation is extremely farfetched, and the narrations themselves do not claim it.^[8]

Of course, this subject matter requires further elaboration that we shall leave to the domain of more extensive research.

Footnotes

We would like to thank Muhammad Jaffer for the footnotes and for editing this article.

[1] The reference here is to the six groups mentioned in Surah Anfal verse 41: “Know that whatever spoils you take, one-fifth is for Allah and the Messenger, his close relatives, orphans, the poor, and ˹needy˺ travelers, if you ˹truly˺ believe in Allah and what We revealed to Our servant on that decisive day when the two armies met ˹at Badr˺. And Allah is Most Capable of everything.”

[2] There are two types of ijma’ (scholarly consensus) described by the Imami jurists: that which is established based on discovery (kashfi), and that which is based on narrations (madraki). The latter depends on the authenticity and probativity of said narrations (for more details, see “Ijtihad in Twelver Shi’ism by Dr. Tabatabaei Lotfi, pages 92-96).

[3] This is a book supposedly authored by al-Sharif al-Murtada, which he is said to have derived from Tafsir al-Nu’mani. It is a single long narration that is attributed to Imam ‘Ali (as). For advanced readers who are interested, please see a detailed article about this text here: tinyurl.com/mr2bn5rz

[4] These various Usuli principles are employed to justify the jurisprudential use of narrations that would otherwise carry very weak probativity. More details should be sought in advanced works of jurisprudence.

[5] For advanced readers, this is the narration in question:

علي بن الحسن بن فضال عن محمد بن إسماعيل الزعفراني عن حماد بن عيسى عن عمر بن أذينة عن أبان بن أبي عياش عن سليم بن قيس الهلالي عن أمير المؤمنين ع قال سمعته يقول كلاما كثيرا ثم قال و أعطهم من ذلك كله سهم ذي القربى قال الله تعالى إن كنتم آمنتم بالله و ما أنزلنا على عبدنا يوم الفرقان يوم التقى الجمعان نحن و الله عني بذي القربى و هم الذين قرنهم الله بنفسه و بنبيه ص فقال فأن لله خمسه و للرسول و لذي القربى و اليتامى و المساكين و ابن السبيل منا خاصة و لم يجعل لنا في سهم الصدقة نصيبا أكرم الله نبيه و أكرمنا أن يطعمنا أوساخ أيدي الناس

[6] For a detailed discussion regarding this principle and its reprehensibility, please see here: https://iqraonline.net/specification-of-the-majority-takhsis-al-akthar/

[7] The reference here is to Surah al-Hashr verse 7, which reads as follows. The author is noting the parallelism in these verses and states that if this Prophetic estate is not specific to Hashemite indigents, then the verse of Khums should also be governed by the same:

“As for gains granted by Allah to His Messenger from the people of ˹other˺ lands, they are for Allah and the Messenger, his close relatives, orphans, the poor, and ˹needy˺ travellers so that wealth may not merely circulate among your rich. Whatever the Messenger gives you, take it. And whatever he forbids you from, leave it. And fear Allah. Surely Allah is severe in punishment.”

[8] He means the claim that the verse of Khums in its general import was abrogated later by these narrations that specify Banu Hashim as the sole beneficiaries of Khums.