WAQF . The Arabic term waqf (pl. awqāf) denotes in Islamic law the act of founding an endowment, the endowment itself, and also the endowment institution. A synonym, mainly used by Mālikī jurists, and hence in North Africa, is ḥabs, ḥubs, ḥubūs, ḥabīs (pl. aḥbās ). The literal meaning of both roots is "stop," "block," or "suspend." In the context of the endowment institution, these terms refer to the legal situation of the property (al-ʿayn ), which by the act of endowing is blocked from taking part in any commercial transaction, while its yields (al-manfaʿah ) are devoted to charitable purposes.
The waqf is conceived of as a continuous, voluntary charity for the sake of Allāh and his religion. The founding of endowments is highly recommended to believers, and they are promised rewards for their meritorious acts in the here-after.
For a long time, studies of the Islamic endowment institution centered on its legal aspects. In the last few decades of the twentieth century, a large number of scholars turned their attention to economic, social, political, and cultural aspects of the waqf. Discrete studies revealed the true dimensions of the institution, its actual working, ways in which the letter of waqf laws was made to coexist with the requirements of real life, the broad spectrum of purposes financed by endowments, and their impact on the public sphere and on the discourse between rulers and society. A great deal of traditional wisdom concerning the waqf was questioned, and differentiation was introduced into general statements traditionally accepted and repeated over and over again. Moreover, new insights were gained on a variety of other subjects, such as gender relations, urban studies, and many economic, social, and cultural aspects of the regions studied. A true picture thus emerged of the central importance of the endowment institution as a means for financing Islam as a society and as an integrative institution of the community of believers (the ummah ) in the premodern era.
The origins of the endowment institution are traced traditionally to early ḥadīth s (traditions deriving from the Prophet and his companions). The rules governing endowments were elaborated in the course of the eighth and ninth centuries. Modern research points to either the Byzantine piae causae, ancient Arabic customs, or pre-Islamic Iranian law as the main inspirations or influences on the legal form of the waqf.
Waqf law is an integral part of the sharīʿah (the sacred law). Application of the law, and difficulties and conflicts arising from it, have thus been handled by the ʿulamāʾ (the sharīʿah specialists), who alone were qualified to interpret the laws. The law covers every aspect of the waqf and differs in detail according to the schools of law and even within one school. Major elements of the law concern the beneficiaries of endowments, their administration, and the type of property that may be constituted as waqf and its legal status.
An endowment enters into effect immediately upon its foundation (unless it is a testamentary waqf). It is considered irrevocable by most jurists and must be perpetual. A valid purpose for the benefit of which the proceeds of an asset can be endowed is defined as qurbah; that is, anything likely to bring the founder nearer to God. This very broad definition includes contributions toward the general welfare of the community of believers, as well as care for the family or other individuals. The founder of an endowment is thus allowed almost complete freedom to determine its beneficiaries. The founder can designate a general charity of his or her choice as immediate beneficiary of the endowment. The waqf would then be referred to as waqf khayrī (charitable endowment). Alternatively, the founder can designate a succession of beneficiaries, the primary and intermediary of whom are either specific members of the founder's family or other individuals, male or female. The endowment would then be described as waqf ahlī or dhurrī (family waqf). However, families are not conceived of as permanent. Since no endowment is valid unless it is perpetual by nature, the founder has to name, as ultimate beneficiary, at the end of the chain of family members, the poor or a general charity (khayrī) of an equally permanent character. A third kind of endowments—waqf mushtarak —consists of a combination of ahlī and khayrī elements.
Endowments soon became by far the most popular form of voluntary charity in Islam. They were made by all strata of the population—rulers, high officials, men and women, rich people as well as people of modest means. Endowed assets covered considerable proportions of all kinds of properties in every Muslim town, as well as vast agricultural areas. They included large as well as modest properties. Endowments benefited individuals and groups, such as family members, freed slaves, and other individual Muslims, members of professional guilds, inhabitants of specific neighborhoods, groups of common origin, the poor in general, or the poor belonging to a specific social groups, even groups of animals. They were also the principal vehicle for financing public services, political and economic interests, including the religious cult, education and learning, welfare and health services, municipal services, colonization, urbanization, and economic infrastructure. The scope of voluntary charity in Islam, the purposes it served, and its importance in the public sphere thus reached proportions beyond what was common in other civilizations.
Non-Muslims living under Muslim rule (ahl al-dhimmah ) could and actually did found waqf s. Their beneficiaries had, however, to qualify as qurbah according to both Islam and the founder's religion. An endowment by a non-Muslim in favor of his offspring, of the poor of his religious community, the poor of his church, synagogue, or neighborhood, or the poor in general, was valid under these rules. Endowments by a non-Muslim to benefit a mosque or in favor of a synagogue, a church, priests, or monks were invalid. Ways were found, however, to circumvent these limitations so that non-Muslim religious establishments could benefit from endowments.
Charity, piety, and the hope for recompense in the world beyond were the ideological motivations for founding endowments. Several, more practical reasons are mentioned in the literature to explain the proliferation of endowments in the Muslim world. Political reasons, such as enhancing their prestige and securing local support, followers, or clients, were found to have been at the root of endowments by rulers, governors, high officials, and local notables. Circumvention of the inheritance laws was a major motive for establishing waqf s, particularly, though not exclusively, among the common people. Islamic inheritance law divides the estate among a very large number of heirs. Disposition by testament is limited to one-third of the estate and may not be made in favor of a legal heir. Testamentary endowments had to follow these rules. Regular waqf s, that is, endowments that enter into effect immediately on their pronouncement, put no restrictions on the founder as far as the beneficiaries or their shares are concerned. The natural inclination to determine who will inherit one's property could, thus, be satisfied. Moreover, according to Abū Yūsuf—one of the founders of the Ḥanafī school of law, whose rulings have been widely followed—founders can name themselves as first beneficiaries of their endowments, and thus enjoy the income from the property as long as they live. This regulation prompted people belonging to the Malīkī school of law, particularly in Algeria and Tunisia under Ottoman rule, to establish their endowments with a Ḥanafī qāḍī and according to Abū Yūsuf's ruling. Moreover, contrary to inheritance, the endowment kept the property intact, dividing among the beneficiaries the income thereof only. It could thus secure a regular income to the founder's descendants in generations to come. Modern research put differentiation into some of the traditional, sweeping arguments, which listed the protection of property from confiscation or exemption of endowments from taxes as motivations for founding waqf s. Endowments were shown not to have been immune from confiscations. They were, in fact, subject to taxation, unless special exemption was granted by the authorities.
Founders of endowments are free to appoint a succession of administrators (nāẓir, mutawallī, qayyim ) to their waqfs. The first administrators are frequently the founders themselves (according to the Malīkīs this invalidates the endowment). When no administrator is provided by the founder, the qāḍī appoints one. The necessary qualifications of administrators, the limits of their freedom of action, and the circumstances in which they can be dismissed are all laid down in the law. Administrators are entitled to about 10 percent of the income from the endowment under their control. They are responsible for the maintenance of the property, renting it out, and distributing the proceeds among the beneficiaries according to the provisions laid down by the founder in the endowment deed (waqfīyyah ). Major institutions financed by endowments, such as those benefiting large mosques, soup kitchens, or the poor of the holy places of Islam, were, however, handled differently. All endowments whose beneficiary was one of these institutions were lumped together to form the patrimony of that particular institution. The political authorities usually had either direct or indirect say in the appointment of their administrators and hence also in some matters concerning their management and the distribution of their income. Administrators of family and public waqf s acted under the qāḍī 's supervision, who alone was entitled to approve extraordinary transactions. Qāḍī s in the Ottoman Empire were assigned specific duties concerning public foundations: they audited the administrators' financial statements, assisted in preparatory works preceding major repair and maintenance works on waqf properties, and kept a watchful eye on the administrators appointed by the Ottoman center.
Basically, only immovable property of a permanent, eternal nature that yields a usufruct (manfaʿah ) can be endowed. There are, however, some exceptions, such as horses and weapons for holy war; movables that follow endowed property (trees, slaves, animals, agricultural tools), books, various utensils, and mīrī land in the Ottoman Empire, whose ownership (raqabah ) belonged to the state (these endowments were called waqf ghayr ṣaḥīḥ ). The most notable exception are cash waqf s (waqf al-nuqūd ), which were widespread, particularly in the core lands of the Ottoman Empire.
Among classical jurists, opinions differ as to the ownership of the endowed property. Many jurists hold that upon endowing the asset, ownership is transferred to God. Others claim that it is transferred to the beneficiaries or remains with the founder; neither, however, has actual rights of disposal. All jurists agree that once the property is endowed it becomes inalienable and is thus withdrawn from any commercial transaction. It cannot be sold, mortgaged, or the like. Moreover, no long-term or permanent leases are allowed in principle, for fear that they would eventually lead to the loss of the asset to the waqf. Administrators of endowed property were thus left with one option only for engendering profit from assets under their control—letting them for a short period, usually limited to one year for urban properties and three years for rural ones. In time, two main ways were, however, devised by jurists in order to overcome economic problems arising from the rule of inalienability: long-term or perpetual leases (differing in some details and known by different names in various parts of the Islamic world; for example, ḥikr, ʿanāʾ, ijāratayn, khulū or murṣād, inzāl, jalsah ) and exchanges (istibdāl, muʿāwaḍah ) of endowed assets. (The Shāfiʿī and the Shīʿī schools do not allow istibdāl; in the other schools, conditions governing exchanges vary slightly.) These transactions were allowed only in very exceptional circumstances, when the property was dilapidated and there was no other way for the waqf to secure income from the asset. Each such case had to come before the qāḍī, who, before approving the proposed transaction, examined all elements of the contract and made sure it was in the best interest of the waqf.
For a long time, criticism of the endowment institution, by both Muslim and Western writers, focused on the administration of public waqf s, its inefficiency, neglect of the endowed properties, and particularly on abusive practices on the part of administrators, rulers, and governors, who frequently enlisted in their manipulations the assistance of corrupt qāḍīs. Allowing for the proliferation of long-term or perpetual leases and exchanges of good and undamaged properties came under particularly heavy fire. Indeed, modern studies have documented the dismemberment of waqf s as a result of such corruptive practices. However, other discrete studies have shown that inefficiency, neglect, and embezzlement were neither inherent to the system, nor necessarily the rule. Instances were documented attesting to careful and dynamic management of public endowments, rational use of their funds, and the introduction of policies that, by means of a flexible interpretation of waqf laws, catered to the economic and social needs of the population and at the same time secured the interests of the waqf.
In the course of the nineteenth century, institutional reforms were introduced in both the Ottoman Empire and Egypt with a view to concentrating endowments under governmental supervision. An important by-product of these reforms was the publication of semi official codifications of waqf laws. Attempts were made under protectorate and mandatory rule to further improve the management of waqf properties. Much more radical steps were taken by colonial regimes, for instance the French in colonial Algeria. With the establishment of modern states in the Middle East, and particularly after the overthrow of monarchical regimes in some of these states, public criticism of the waqf increased. It now centered around the most basic characteristics of the institution and their incompatibility with economic development, budgetary policy of a modern state, and the social and political objectives of the new regimes. Consequently, reforms in waqf law were undertaken, particularly in the course of the second half of the twentieth century. Administration of endowed property was concentrated under special governmental ministries. In some countries (e.g., Turkey, Egypt, Syria, and Iraq) reforms amounted to the nationalization of public waqf properties, the total or partial abolition of family endowments, and, in some cases, prohibition of their establishment in the future. Former waqf lands were distributed as part of agrarian reforms. Various, less radical reforms in the law pertaining to endowments were introduced in other countries (e.g., Kuwait, the United Arab Emirates, and Yemen).
Semi official codifications of the Ḥanafī waqf law are: Muḥammad Qadrī Pāshā, Kitāb Qānūn al-ʿAdl wa-al-Inṣāf lil-Qaḍāʾ ʿalā Mushkilāt al-Awqāf, 3d ed. (Bulaq, Egypt, 1902); and Ömer Hilmi, A Gift to Posterity on the Laws of Evqaf, translated by C. R. Tyser and D. G. Demetriades, 2d ed. (Nicosia, Cyprus, 1922). A good introduction to broader knowledge on the subject, including an extensive bibliography, can be found in R. Peters et al., "Waḳf," in The Encyclopaedia of Islam, new edition, vol. 11, pp. 59–99 (Leiden, 2000). A detailed bibliography on the subject can also be found in Miriam Hoexter, "Waqf Studies in the Twentieth Century: The State of the Art," Journal of the Economic and Social History of the Orient 41, no. 4 (1998): 474–495. Special issues of the following journals are dedicated to the waqf and include a number of important studies on the subject: Journal of the Economic and Social History of the Orient 38, no. 3 (1995); and Islamic Law and Society 4, no. 3 (1997). Edited volumes comprising essays on the waqf are: Le waqf dans l'espace islamique: Outil de pouvoir socio-politique, edited by Randi Deguilhem (Damascus, 1995); and, with emphasis on the modern period, Le waqf dans le monde musulman contemporain (XIXe–XXe siècles): Fonctions sociales, économiques, et politiques, edited by Faruk Bilici (Istanbul, 1994). For the role of waqf in the public sphere, see The Public Sphere in Muslim Societies, edited by Miriam Hoexter, Shmuel N. Eisenstadt, and Nehemia Levtzion (Albany, N.Y., 2000), particularly the following articles: Haim Gerber, "The Public Sphere and Civil Society in the Ottoman Empire," pp. 65–82, and Miriam Hoexter, "The Waqf and the Public Sphere," pp. 119–138. On the contribution of the waqf toward alleviating poverty, see several articles in Poverty and Charity in Middle Eastern Contexts, edited by Michael Bonner, Mine Ener, and Amy Singer (Albany, N.Y., 2003).
Miriam Hoexter (2005)
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