A REPORT ON THE HISTORY OF WAQF
IN ABŪ ZAHRAH’S BOOK AL-WAQF
A REPORT ON THE HISTORY OF WAQF
IN ABŪ ZAHRAH’S BOOK AL-WAQF
By
Muhammad Amin A. Samad
Dr. R.N. Verdery
SOCIAL
INSTITUTION Of ISLAM: AWQĀF
February 13, 1975
397 – 706 D
INSTITUTE OF ISLAMIC STUDIES
MCGILL UNIVERSITY
INTRODUCTION
In this report I shall deal with the waqf in
Egypt from the time of Ikhshīd (10the century A.D.) until the abolition of the
family waqf according to Act. No. 180 in 1952, as mentioned in Abū
Zahrah’s book al-Waqf. I shall also refer to other sources, especially
dealing with the possession (milkiyyah) of the waqf.
THE GREEDINESS OF THE RULERS (’UMARĀ’)
IN THE AWQĀF
In this chapter the writer said that before the
Akhshīd period, in spite of the great quantity of awqāf in Egypt, the waqfiyyah
was only on buildings and houses. He
said that al-Maqrīzī reported that the waqfiyyah was applied only to
houses. Lands had never been
touched. Even when Ibn T.ūlūn (868-84) built the mosque, the
clinic, and the drinking place, and founded many awqāf, he founded on
houses and buildings, and he had never interfered any piece of the land of
Egypt.[1] The reason was that the land of Egypt was considered
to be the property of the state; the farmers did not possess the land; they
merely hired it, and the tributes they paid were its fares. This was the opinion of the majority of the culamā’
at that time, e.g., the opinion of Abū Yaclā (in al-Ah.kām al-Sult.āniyyah),
and Imām al-Nawawī, the great scholar of Shāficī school in Syria.[2]
This prohibition from establishing waqf-land
did not last long. During the time of
Ayyubides (13th-14th century AD) the establishment of waqf
from cultivated lands was allowed, and with the increase number of the awqāf,
the affairs had three departments (dawāwīn):
a. for the awqāf of the
mosques
b. for the awqāf of the H.aramayn and other kinds of
beneficence, and
c. for the family awqāf (al-awqāf
al-ahliyyah)
Most of the awqāf in the Arab
land were based on the H.anafī and
Shaficī schools, where the awqāf were perpetual, and sometimes
their expense and management were unknown due to the lapse of time.[3]
In Egypt some rulers tried to possess
the awqāf. The writer mentioned that al-Maqrīzī reported in his Khit.at. that al-Nās.ir Muh.ammad b. Qalāwūn (1285-1341) tried to
seize half of the awqāf-land of the mosque which was 130 000 feddans (1
feddan = 4.200 m2).[4]
Some rulers, with the help of some
godless (fāsiq) judges and witnesses had seized the waqf through
its liability to substitution. Among them was Jamāl al-Dīn Yūsuf, who was aided
by Kamāl al-Dīn cAmr b. al-cUdaym, the qād.ī of the H.anafī
school. The writer mentioned the report of al-Maqrīzī, that if Jamāl al-Dīn
wanted to seize a waqf he appointed two witnesses to give a statement
that this building etc. was harmful to the vicinity and the passage, and to
avoid this harm it should be substituted. The qād.ī
al-qud.āt Kamāl al-Dīn b. cAmr
gave his judgement to substitute it. As Kamāl al-Dīn was greedy in this work as
well as others, the judgement was given in his favour for the substitution of
prosperous palaces and good houses in this way, and as “people follow the
religion of their rulers”, anyone who wished to sell or buy a certain waqfiyyah,
he did the same way with the judge mentioned before through influence (jāh)
or money, so that the judge might give his judgement in accordance with his
will.[5]
This practice happened in the 7th,
8th century A.H. and after.
Its influence could be traced in the opinions of jurists at that time.
Some of them were very strict in their fatāwā concerning the
substitution of the waqf;
others were more than disapproval of their deed. Abū Zahrah mentioned the
report of al-T.urt.ūsī that this problem had been traced
back to Abū H.anīfah and had been practiced
in Egypt. Some people did it in the proper way; others did it to get the
prosperity of this world, and to make themselves near to the ruler.[6]
The jurist who
were strict in the substitution of the waqf imposed conditions of
knowledge (cilm) and justice (cadālah) of
the judge to legalize his judgement on the substitution of the waqf,
without which his judgement would be considered void, though the H.anafī school accepted the judgement of
an unjust judge, who should be dismissed.[7]
According
to Ibn Nujaym (926-70/1520-63), a distinguished H.anafī
scholar, the substitution of the waqf should be with a real estate, and
not with money, so that it would not be abused. As reported by Abū Zahrah he
said:
There should be another condition in our time, i.e.,
the waqf should be substituted with a real estate, and not with dirhams
and dinars, as we have seen inspectors took it, and it rarely happened
that they bought a substitution for it, and I do not see any of the judges who
makes investigation in spite of great quantity of substitutions in our time,
though I have warned some judges about it, and they intended to do it, but
later they left it.[8]
THE IDEA OF ENDING THE AWQĀF
The idea of ending the family waqf is not new.
The king al-Z.āhir Baybars (1260-77) intended to apply the concept of
the state ownership of land. Due to the war with the Tartar he imposed many
taxes in Egypt and Syria. He also tried to seize the whole land, including the awqāf
lands. He went to every owner of the estate and asked him to present a document
to prove his ownership. If he could not do it, and this usually happened, his
estate was taken. This practised was opposed by Shaykh Muh.y al-Dīn al-Nawawī and other culamā’.
So, Baybars followed another way by imposing heavy taxes on the people and
the waqf. Al-Nawawī wrote a letter in which he said: “The people of Syria are in distress and weak
this year due to the lack of rain, the increase of prices, the lack of crops
and plants, and the devastation of cattle, and you know that kindness should be
given to the people, and the advised given [to the ruler] is for his and
people’s behalf.”[9]
In the 8th century A.H. (14th
century A.D.) Barqūq had also the idea of ending the family waqf. He
held a meeting with the culamā’ and qud.āt, among whom was Sirāj al-Dīn b.
Ruslān al-Balqīnī, and asked their opinion about his intention to end the
family waqf, saying that the lands of Bayt al-Māl had been taken
from him with trick by the umarā’, and they established them as waqf
after the time of al-Nās.ir Muh.ammad b. Qalāwūn (1285-1341). These
pieces of land were not considered waqf, but fund (irshād), which
was legal, since it was spent according to regulations of Bayt al-Māl, e.g.,
mujāhidūn, orphans, mosques, the poor, etc.[10]
This policy of ending the family waqf led to
abuse. The rulers (umarā’) rented these lands with low salary, and then
hired them with high salary. When Barqūq died, all the awqāf lands in
Egypt and Syria were in the hands of the umarā’.[11]
THE ESTABLISHMENT OF AWQĀF TO PROTECT
THE ’UMARĀ’’S PROPERTY
During the time of the Mamelukes (13the-14th
century) the land in Egypt and Syria belonged to the ’umarā’. To protect their lands and
palaces from falling to the hands of conquerors, the ’umarā’ used
protection by means of waqf to the mosque from which their offspring
would have big benefit. The example was that in 827 A.H. Barsbay (1422-38)
dedicated all his property in Cairo as waqf to his mosque which he
called al-Masjid al-Ashrafī, and gave salary to the employees at this
mosque, not as a share, but with dirhams and dinars; for example, the mu’adhddhin
received 1200 dirhams, the h.āfiz. al-Qur’ān received 1000 dirhams,
the khāt.ib of Jumcah and
the two cĪd prayers who was
also imām at the congregational prayers received 500 dirhams, the
scholar who was specialized in the waqf received 300 dirhams; the rest
was for himself and his offspring.[12]
To ensure the safety of their lands, the ’umarā’
imposed the condition that their awqāf lands were not substitutable, no
matter how heavy was the damage.[13]
When Muh.ammad cAlī
(1769-1849) measured the land of Egypt he found out that the cultivated lands
were two million feddans, of which six hundred thousand feddans were awqāf
lands, i.e., about one-third of the whole cultivated lands. These awqāf
lands had been exempted from tax, and Muh.ammad cAlī
imposed on the half of the normal tax, i.e., three and a half rials for every
feddan. Later, he imposed on them normal tax. When many people came to the culamā’,
who in their turn went and complained to Muh.ammad cAlī,
he promised to repair the mosques.[14]
THE SEIZURE OF THE LANDS OF EGYPT
As Muh.ammad cAlī
had promised to repair the mosque, and that he had in mind the idea of state
ownership of lands, where there was nobody who stood against this idea like
Imām al-Nawawī in the past, he took over the lands, including the awqāf ones.
He asked the landowners to present documents as proof of their ownership.[15]
In his abolition of the family awqāf Muh.ammad cAlī was supported by
the muftī of Alexandria, Shaykh Muh.ammad Mah.mūd al-Jazayrlī,[16] due to their abuse, i.e., the deprivation of
some inheritors, the delay of payment of one’s debt in his lifetime. In his fatwā
the shaykh said that the waqf was one of which many controversies
arose among the leaders of the ijtihād. Abū Yūsuf gave more facility in
establishing awqāf, i.e., through one’s statement. Muh.ammad b. al-H.asan
gave the condition of being delivered to the mutawallī. According to Abū
H.anīfah, as reported by Muh.ammad b. al-H.asan,
such kind of waqf (family waqf) was void, either it was perpetual
or temporal. Shams al-A’immah al-Sarakhsī reported the same thing from Abū H.anīfah, either the constituent founded
the waqf in his health or in his illness, except if he have a testament
to make it waqf after his death.[17] So, in 9 Rajab 1263 A.H. Muh.ammad
cAlī issued a decree to ban the family waqf, as the qud.āt at that time was directly under
the Sultan of the Ottoman Empire, and that Muh.ammad cAlī’s
power became decreased, his decree was not applied successfully.[18]
During the time of Sacīd (1854-63) he
issued a decree in August 1858, where he distributed the cultivated lands to
the people who deserved them, as cultivators, not as landowners, but as the
owners of the profit of the lands. As the awqāf had become the property
of the state, the awqāf of the mosques and charitable purposes were
replaced by the funds of these things.[19]
When a decree in 15 April 1891 was issued to give full
possession of the land, the waqf became lawful to all. People became
eager to found awqāf for their descendants.[20]
In order to protect the awqāf,
especially the family waqf, a department (dīwān) for the awqāf
was established in 1895, which became later a ministry, according to the decree
of 20th November 1913. During the union between Egypt and Syria,
this ministry operated in the awqāf in both regions.[21]
In 1926 some members of the Parliament
urged to reform the awqāf regulations; even some of them called for the
elimination of the waqf with the following reasons:
1. The increase of waqf on
cultivated lands with the average 19 000 feddans per year, which were almost
one-eighth of the whole cultivated lands in Egypt, which were 770 000 feddans,
and usually the waqf lands were not cultivated well.
2. The increase of awqāf ahliyyah
caused unemployment.
3. The loss of the rights of the
people who deserved the waqf, as the inspectors took their rights, and
sometimes hired the awqāf with high interest, and possessed the crops
before the harvest time.
4. Continual disputes among the
inspectors of the awqāf, and the judicial problems that broke the family
relationship.
5. As time passed for some awqāf so
that the number of descendants who had rights on the awqāf increased,
each of them had a small amount of share, until some of them got about 20
piastres per month. If every holder of this small amount of share bought them,
it would become a capital which would be exploited.
ACT NO. 48 OF 1946 ON THE WAQF
For the above-mentioned reasons the act
no. 48 was issued and “served as a model for the Lebanese law of 1947 on waqf,
and a Syrian act of 1949 anticipated the Egyptian act of 1952 in abolishing the
private family waqfs.”.[23] This act is
still affected in Egypt, and was adopted by Lebanon in 1951.
There are three aims of this act:
1. To make the waqf
management flexible. Examples: Any waqf is considered non obligatory as
long as long as the founder is alive, except the waqf of mosques. The
family waqf is temporal, i.e., for sixty years or two generations
(t.abaqatayn). Waqf khayrī can
be either temporal or permanent, except the waqf of the mosque, which is
permanent. The conditions imposed by the constituent are not considered, if
they do not agree to the spirit of Islamic law (ghayr muttafiq maca
maqās.id al-sharc), e.g.,
the condition of remaining unmarried. There is possibility of ending a waqf
if damage is found and if there is no way to repair or substitute it. In this
case the judge can give his judgement to sell or to distribute it among the
beneficiaries. If the constituent is still alive it is returned to him. Movable
things and shares can be awqāf, and there is possibility of exploiting
their substitutes.
2. To protect the inheritors from
the injustice of the constituents, especially the descendants, husband and
wife, and parents, as they have rights for two-third of the inheritance. If a
constituent dedicated all his property for awqāf, the beneficiaries must
be those who have rights two-third of the property, and he (the constituent)
has right on the rest, as the act no. 71, 1956, like the act of testament,
permits the constituent to found waqf from one-third of his property to
his inheritors. The beneficiary can be deprived from his share in the waqf
if he kills the constituent and if the killing prevents him from having share
in inheritance, or if the constituent deprives him from some or all his hare
for a reason accepted by the court of law (mah.kamah),
e.g., if he marries a foreign woman which is harmful to his character
and religion.
3.
a. To protect the waqf from its inspector (nāz.ir), e.g., he is
responsible for the damage and interest of the waqf; debt from the waqf
is unlawful, except it is for the management and exploitation of the waqf
itself.
b. To protect the rights of the beneficiaries from the
inspectors, e.g., the inspector is not allowed to use more than
one-fifth of the net income for the reparation of the essence of the waqf (tacmīr
acyān al-waqf) except with the permission of the beneficiaries
or the court (mah.kamah).[24]
According to this act, the waqf that is
terminated is turned back to its owner (the constituent), and he has full right
in its management, and it becomes liable to be inherited (except the waqf
which cannot be returned back to its founder). After the death of the
constituent the waqf khayrī ends with the termination of its fixed time,
or with the extinction of the beneficiaries before the termination of the fixed
time, and the property belongs to the inheritors of the constituent at the time
of his death, or to their inheritors; and when they are extinct, the property
belongs to Public Treasure. If the waqf is terminated by this act
because of its damage, or lack of its share, it belongs to the beneficiaries
who have rights at the time the act were issued.[25]
THE ABOLITION OF FAMILY WAQF
In the early period of Islam there was no term waqf
ahlī or waqf khayrī. All awqāf were called s.adaqah.[27] According to Shaykh Khallāf, in the time of the
Prophet and his Companions there was only waqf khayrī, while waqf
ahlī came later in the 2nd century A.H. Shaykh Muh.ammad Abū Zahrah said that the origin
of the waqf is charity, i.e., it was purely for charitable
purpose, where the family and children of the constituent had no share from it.
After the time of the Companions people began to be away from the right source
and misused this legal waqf to oppose the rule of inheritance. On this
opinion of the jurists the act no. 180 of 1952 abolished the family waqf.[28]
This opinion was not accepted by Prof. Muh.ammad Mus.t.afá Shalabī.
According to him waqf ahlī and waqf khayrī had been
practised during the early period of Islam.[29]
According to this act, the property, after the
abolition of the family waqf, is returned to the constituent if he is
still alive and if he imposed the condition to have the right to take it back.
This is taken from Mālikī and H.anafī
schools. It the constituent is dead or alive but he prevents himself from
taking it back, it belongs to the people who deserve it, and distribute it
among themselves.[30]
ENDNOTES
[1]Muh.ammad Abū
Zahrah, al-Waqf, Cairo, p. 16; he cited from al-Maqrizī, al-Khit.at., vol. 4, p. 83.
[2]Abū Zahrah, al-Waqf, p. 16; he cited from: Abū
Yaclā, al-Ah.kām al-Sult.āniyyah, Ibn al-Humām, Fath. Al-Qadīr, and H.āshiyah
of Ibn cĀbidīn without mentioning the volumes and the pages.
[3]Abū Zahrah, al-Waqf, p. 17.
[5] Ibid., pp. 17-18 cited from Maqrīzī.
[7]Ibid. cityed
from Ibn cĀbidīn, vol. 3, al-Iscāf,
n.p. and Ibn Nujaym, al-Bah.r al-Rā’iq,
vol. 5, p. 241.
[10]Ibid., p.
23, citing from al-Fatāwā al-Mahdiyyah, vol. 2, p. 660, Maqrīzī, Khit.at., n.p.,
Suyūt.ī, H.usn
al-Muh.ād.arah,
n.p., Ibn Nujaym, al-Bah.r, and
Ibn cĀbidīn al-Iscāf, n.p.
[12]Ibid., p.
25, citing from Ishhār Waqf Barsbay in the Dār al-Kutub al-Mis.riyyah, Cairo, no. 339.
[14] Ibid., p. 27, cited from Ta’rīkh al-Jabartī,
vol. 4, p. 143; what I found was on pp. 141 and 142, and I did not find the
statement that Muh.ammad cAlī
imposed normal tax later.
[15]Ibid.
[16]See Muh.ammad Sallām
Madkūr, al-Waqf (Cairo: Dār al-Nahd.ah al-Mis.riyyah, 1380/1961), p. 12.
[17]Abū Zahrah, al-Waqf, p. 30.
[18] Ibid., pp. 30-1; see also Madkūr, al-Waqf, pp.
12-3.
[19]Abū Zahrah, al-Waqf, p. 31.
[23]See Joseph Schacht, An Introduction to Islamic Law
(Oxford, 1964), p. 103.
[24]Abū Zahrah, al-Waqf, pp. 39-43.
[25] Madkūr, al-Waqf, pp. 87-9.
[26]Abū Zahrah, al-Waqf, pp. 44-6.
[27]See Muh.ammad Mus.t.afá Shalabī, Ah.kām al-Was.āyā wa ‘l-Awqāf (Mat.bacah Dār al-Ta’līf,
1384/1964), 2nd ed., p. 340.
[28] Ibid., footnotes on pp. 340-1.
[29] Ibid., pp. 340-4.
[30] Madkūr, al-Waqf, pp. 87-90.
BIBLIOGRAPHY
A. Used by Abū Zahrah:
Al-Fatāwā al-T.art.ūsiyyah.
Al-Fatāwā al-Mahdiyyah, vol. 2
Ibn Abī Yaclā. Al-Ah.kām al-Sult.āniyyah. Cairo, 1356/1938
Ibn cĀbidīn. Was.āyā.
Third edition. Būlāq, 1323 AH.
Ibn al-Humām, Fath. Al-Qadīr. First edition. Al-Āmīriyyah,
1316 AH.
Ibn Nujaym. Al-Bah.r al-Rā’iq.
Vol. 5.
Al-Iscāf.
Ishhār Waqf Barsbay. (Kept in Dār al-Kutub al-Mis.riyyah
as one of the historical preserved materials, no. 339).
Maqrīzī, Taqī al-Dīn al-. Kitāb
al-Mawāciz. Wa ’l-Ictibār bi Dhikr al-Khit.at. wa ’l-Āthār (al-Khit.at. al-Maqrīziyyah), vol. 4.
Suyūt.ī, Jalāl
al-Dīn al-. H...usn al-Muh.ād.arah.
Ta’rīkh al-Jabartī.
B. Added to the paper:
Madkūr, Muh.ammad
Sallām. Al-Waqf min al-Nāh.iyah
al-Fiqhiyyah wa ‘l-T.abaqiyyah.
[Cairo]: al-Nahd.ah
al-Mis.riyyah, 1380/1961.
Schacht, Joseph. An Introduction to
Islamic Law. Oxford, 1964.
Shalabī, Muh.ammad
Mus.t.afá. Ah.kām al-Was.āyā wa ’l-Awqāf. Second ed.
[N.p.]: Mat.bacah Dār
al-Ta’līf, 1384/1964
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