IN HIS BOOK
iSTITUZIONI DI DIRITTO MUSULMANO MALICHITA
A REPORT ON SANTILLANA’S ARTICLE “H...UBUS”
IN HIS BOOK
ISTITUZIONI DI DIRITTO MUSULMANO MALICHITA
Vol. II Chapter IV
By
MUHAMMAD A.
SAMAD
DR. R.N. VERDERY
AWQĀF SEMINAR: (397-706)
OCT. 17, 1974
INSTITUTE OF ISLAMIC STUDIES
MCGILL UNIVERSITY
This report falls into two parts:
I. A selective translation of David
Santillana’s article on h.ubus or waqf in
his book Istitutioni di Diritto Musulmano Malichita (Institutions of Mālikī Muslim Laws),
vol. II, chapter IV.
II. A bibliography of the sources
Santillana used in his article.
PART I
In his preliminary he stresses the importance of h.ubus or waqf as the most
important form of generosity for the cause of piety or charity. The word waqf and h.ubus are derived from waqafa
and h.abasa, which mean “to bind, to
immobilize”. Some jurists make a distinction between h.ubus
and waqf, but this distinction does not exist, at least in the laws of
the Mālikī
and Shāfi‘ī schools. Anyhow, people in
the East prefer the word waqf, while it is said that the Moroccans
prefer the word h.ubs or h.ubus.
Then Santillana
makes a distinction between charity (s.adaqah)
and h.ubus. Although in both
charity and h.ubus the donor intends to make a favourable work or to
thank God (qurbah), but in the s.adaqah the donor alienates his
possession from the thing he donates, while in the h.ubus (waqf) he renounces only the benefit, and the
thing remains in the possession of the constituent (wāqif) according to
the Mālikī school, or to
God, according to the H...anafī school.
Speaking in the
definition of the waqf the author said that it was a kind of generosity
or free permission to have the benefit, as Dasūqī put it: الوقف نوع
من التمليك في المنافع “Waqf is a kind
of transfer of ownership in benefits”.
The author mentions the definition given by Ibn ‘Arafah, as follows: “H...ubus is the donation of the
utility of something perpetually, requiring, however, that it remains the
property of the constituent (wāqif), i.e., non-transferable.” This is also the definition given by the Mālikī and Shāfi‘ī schools. According to the H...anafī
school the definition of h.ubus or waqf is as follows: الوقف هو
حبس العين على ملك الله و على وجهه يعود نفعه على العباد “Waqf
is holding the property in Allah’s possession and for His sake its benefit
returns to (His) servants.”
Waqf has a contractual
quality in which there is an obligation assumed to God and is therefore,
irrevocable, and has the quality of dedication.
From this quality the word sabbala as the synonym of waqafa
constitutes the aim of piety that comes from sabīl Allāh, which
originally meant the holy war, and the extension of any object of piety.
Dealing with the
origin of the waqf the author gives five theories:
a. It is a practice
recommended by the Qur’ān to give all or part of good properties in the path of
God. It is a form of charity.
b.
It is derived from rules that
controlled res sacrae (sacred things) and aedes sacrae (sacred
temples) among the Romans.
c. It is derived from a
general seclusion or immobilization which befell the conquered lands in favour
of the Muslim community, and especially the land that had already been
possessed by the Prophet as his right from the booty, which was turned later
into the property of the State, being uninherited from the Prophet.
d.
It is derived from the
Byzantine-Roman Law, and precisely from the legislation that arranged le
piae cause (the cause of piety), or else, it had strong influence later.
e.
According to Arab jurists it
had been unknown in pre-Islamic Arabia. So, waqf is a pure Islamic
institution.
The author says
further that in pre-Islamic Arabia the temple of Ka‘bah, the sanctuary of
Taymā’ and others, like the ancient Greek sanctuaries, there were juridical
persons who possessed territories considered as the property of the temple (h.aram, h.imā’),
in which slaves and herds lived and dedicated to the sanctuary. Such dedication for the cause of piety was
not opposed by the Prophet. He
acknowledged the territory (h.aram) of
Mecca.
Then the author
presents to us the practice of h.ubus throughout the Islamic history. He mentions from Cetani’s Annali, that
the soil possessed by monasteries and religious institutions in Palestine,
Syria, and Mesopotamia remained untouched during the Arab invasion. Since the beginning of Islam a private form
of waqf had been practiced since the time of the companions of the
Prophet. It was called s.adaqah. Ibn Sa‘d said that he had
read an act in which Arqam b. Abī al-Arqam had made his house at Mecca to be
the residence of the Pprophet (dār al-Arqam) as s.adaqah in favour of his
children. A spring at Suluzū was
intended by ‘Uthmān for the poor people of the country. ‘Umar b ‘Abd al-‘Azīz
provided foundations to relieve the poor pilgrims to Mecca and the sick people.
At the end of the
second century A.H. the h.ubus and been practiced
everywhere. It is said that because of
the multiplication of h.ubus, Hārūn
al-Rashīd urged the famous Abū Yūsuf to abandon the opinion of his master Abū H...anīfah, which was that with the death
of the constituent the constitution of the h.ubus became abrogated.
In the 3rd
and 4th century A.H. the h.ubus played an important role in the social and economic
fields. In Spain, al-H...akam II (reigned 350/961) ended the
constitution of the great mosque of Cordova, dedicated a quarter of the lands
he received in his paternal succession for a foundation in favour of the people
in the whole of Spain. In Egypt when the
Fatimid Caliph al-Mu‘izz lidīn Allāh founded the Azhar mosque in 359/969-70, he
dedicated the most important estate in which the income was used for the
maintenance and the cost of teaching in this university.
From the 4th
century A.H. on, the foundations devoted for education, lodging for travelers,
maintenance for sick people, sabīl, or public wells with patrimony were
conspicuous. In Morocco 40 % or 50 % of
the immovable property belonged to the h.ubus, and so was in Egypt and Turkey.
In the first
section the author gives us the constructive elements of the h.ubus or waqf, namely:
1.
Wāqif or muh. abbis (the constituent)
He may be one
person or collective persons. People who
are not to be constituent:
a.
Married women without their
husbands’ permission if the waqf exceeds one-third of their properties.
b.
Debtors if they might wrong
the creditors by constituting waqf
A
non-Muslim (dhimmī) may constitute waqf, since he has no bad
intention (ma‘s.iyah) to
the general principles of the Islamic law, e.g., waqf for building a
hospital, a bridge, for the distribution of relief to the poor. He is not allowed to constitute waqf
for making wine or any other unlawful food, for building a church or a
synagogue, or for the service of the Christian cult, except for the maintenance
of churches that had been erected on the Muslim territory.
An
institution founded by a dhimmī for Muslim cults is not valid, at least
according to the Mālikī school, for Imām Mālik refused a dīnār (a gold
coin) given by a Christian woman as charity for the Ka‘bah.
2. Muh.abbas ‘alayh (the
beneficiary)
The beneficiary may be one person or
collective persons, or public utility like mosques, wells, etc. It is not important that he should be a
Muslim, but he should be a freeman.
People who are not to be beneficiaries are:
a.
non-Muslims who are not under
the Islamic state (h.arbī)
b.
slaves
c.
heirs of the constituents.
3.
Muh.abbas or mawqūf (the
object of the waqf)
Every
valuable estate can be mawqūf, either movable or immovable, some or all
of the property of the constituent. The
last one is not recommended as the h.adīth did
not approve the idea of giving one’s whole possession.
Things
that cannot be mawqūf are:
a.
Immovable things subject to a
tribute called kharaj, because it has been considered to be in favour of
the Muslim community. This principle is
also valid in modern Turkish law for mīriyyah land in which the state
keeps its authority.
b.
Other people’s property,
except if the proprietor approves the constitution of the waqf. This is according to the Mālikī and Shāfi‘ī
schools. On the contrary, according to
the H...anafī school this case will not make
it valid, even if the owner approved it, or if the property becomes later on
the property of the constituent.
Can
declinable or consumable things become mawqūf? The Mālikī and Shāfi‘ī schools agree and
admit the validity of the waqf for the arms, horses, and animals for
burden, because they found examples in the Tradition. But they did not admit the waqf for
consumable things, because the waqf should have perpetual destiny. But the later doctrine became near to the
idea of the Mālikī school through the influence of Abū ’l-Layth al-Samarqandī
(d. 383/993) and admitted the waqf of things the value of which may
increase in general, such as: money, or commodity used for seed lent to the
farmers, because the capital is reintegrated perpetually.
4.
Mas.rif
al-waqf or wajh al-waqf (the destination or purpose of the waqf)
The
purpose of the waqf should be pious or beneficial works, qurbah ilā
Allāh. This purpose must be lawful, i.e., not against Islamic law or religion. So, the waqf is
not valid if it is dedicated for the building of a church or distribution of
wine or pork, or if the constituent is a dhimmī, or the waqf is
dedicated for arms against the Muslims.
Only Aū H...anīfah allowed
the possibility of the waqf for building a church for the dhimmīs.
According
to the H...anafī school the purpose of
the waqf must fulfill two conditions, i.e.,:
a.
al-qurbah ilā Allāh. Any pious, humanitarian, or public interest is
a qurbah, e.g., the maintenance of mosques, schools, public
wells, bridges, roads, hospitals, hospices for relieving the poor in general,
etc.
b.
mas.rif
mu’abbad (perpetual purpose). Any indication of limitation to a certain time will
void the waqf. It will be void if
the institution is limited to a certain number of years or to be in favour of a
certain person—for instance if the constituent says: “I dedicate my house as a waqf
for my son—because time is limited to his death.
5.
S.īghah ( a formula, an
expression of willingness)
According
to the Mālikī and Shāfi‘ī laws s.īghah
does not need any special term. The
constitution of the waqf may be s.arīh. (clear) or implicit.
Writing
cannot be considered to be an evidence of the constitution of a waqf,
according to the H...anafī school.
H...ujjah (evidence) can only come
from the attestation of qualified witnesses, or from the confession or denial
of the parties concerned. But Abū Yūsuf
and Muh.ammad al-Shaybānī (two disciples of
Abū H...anīfah) by using istih.sān (appreciation) admitted the
validity of writing, especially when it is registered in the archives of the
judges or in their official registration, the act of constitution is very
reliable in its contents.
Then
the author presents us the requirements for the perfection of the waqf, i.e.,
the acceptance of the beneficiary and his effective apprehension of the
thing.
As
for the perpetuity of the waqf the prevalent doctrine in the Mālikī
school admitted that the waqf can be temporal, i.e., limited to a
certain time or to a certain purpose, or to the lives of a certain number of
people, and with their death the
property returns to the constituent. Ibn
‘Arafah denies it and insists the perpetuity of the waqf.
All
schools agree that qurbah is necessary for the existence of the waqf. It does not need that the willingness of
the constituent is directed to transfer immediately the possession of the
foundation to pious purposes. The waqf
can be mu‘aqqab (postponed), the constituent can deliver the property to
a certain person, in the order of succession from which he dedicates, then
after that to the pious purpose.
The
formula of the waqf according to the Mālikī and Shāfi‘ī schools is that
a person who declares to the notary to have constituted his house to be a waqf
in favour of his children and descendants he is willing that when his
descendants were entirely extinct the waqf would be delivered to the
holy cities (h.aramayn),
i.e., Mecca and Medina; if the interest was not bestowed upon these two
holy cities, then it would be treated in the same way as other awqāf
which belong to them.
The
formula of the H...anafī school
is: “I constitute my house as a waqf, so that the interest will be spent
for the benefit of my children, and when my children were extinct, I wish that
it would be distributed among the poor of Mecca.”
The
validity of this formula and the form of constitution of waqf was an
object of controversy among the H...anafī
jurists. Abū Yūsuf defends it,
because it is in favour of the extension of the waqf. It is true that these foundations served
a private interest, but anyway, for its ultimate result, it should not be
denied that it goes to the profit of beneficial purpose, and, it is enough to
constitute the cause of piety which is necessary for the validity of the waqf.
Although
this formula is attacked by Muhammad (a disciple of Abū H...anīfah and Hilāl (a disciple of Abū
Yūsuf), this opinion of Abū Yūsuf is predominant in the practice of the H...anafī school. It is customary that this kind of waqf (waqf
‘ādī or waqf ahlī or waqf mu‘aqqad) that a part of the interest
is required for pious works or public use.
In
the second section the author speaks on the effects of the constitution of the h.ubus concerning the constituent, the subject (mawqūf),
and the beneficiary.
In
the third section the author speaks on the administration of the waqf. The constituent has the right to determine
the school of law that he bases his waqf, to entrust a person to
administer it, to prescribe rules which give more advantages to the
administration, and to indicate orders by which the beneficiary will be called
for the foundation.
In
the fourth section the author presents us the extinction of the waqf
caused by:
1.
the destruction or
transformation of the object constructed in the waqf, which could not be
reintegrated in its former condition.
2. the impossibility to give the
foundation the destination intended by the constituent, e.g., the waqf
is dedicated for the benefit of a mosque, which is useless if the total
population desert the area.
3.
the absence of the descendant
to whom the constituent dedicates the waqf.
4. the apostasy of the
constituent, according to the laws of Mālikī and H...anafī
schools.
According
to the H...anafī law if the apostate is
a man he is to be put to death and losses his civil rights, and the waqf enters
the succession, which is open for the benefit of the heirs. If the apostate is a woman, being neither put
to death nor losing her civil rights, she keeps her patrimonial rights, and
nobody could change the judicial conditions in the foundation which she
constitutes.
5. the sentence of the judge in cases the law
does not declare the cancellation of the
waqf. Also, according to the Mālikī
law, if the beneficiary is unable to hold possession (qabd.) of the property.
PART II
SELECTED
BIBLIOGRAPHY OF
SANTILLANA’S
COURCES
A. Primary Sources
Bābā,
Ah.mad, in the margin of
Ibn Farh.ūn’s Kitāb al-Dībāj al-Madhhab fī Ma‘rifat A‘yān ‘Ulamā’ a-Madhhab
Ben
Cheneb, “Etude sur les personages mentionnes dans l’ “Idhaza” du Cheikh
‘Abdel Qādir el-Fasy” (Acted de XVI Congres inter. des Orientalesistess,
Alger, 1905, IIIe Partie, Suite), Paris, 1908. Cited according to the
numbers of paragraphs.
Brockelman,
C. Geschichte der Arabischen
Litteratur. Weimar, 1898-1902, vol. 2; id. Suppl.= Supplement band, vol. 2,
1937-38.
ABC
11A/B8649
Khalīl
Ibn Ish.āq.
Al-Mukhtas.ar, or Summary of the Mālikī
law, translated by I. Guidi and D. Santillana.
Milano, 1919, vol. 4.
Abū Dāwūd, Sulaymān b.
al-Ash‘at al-Azdī al-Sijistānī. Sunan, vol. III C6/A16147s
‘Adawī,
‘Alī b. Ah.mad al-. Glossary on the
Commentary of al-Khirshī on al-Mukhtas.ar
by Khalīl. Cairo, 1330 AH, vol. II, pp. 173-94. C5M/A221h
Bājūrī
al-, or Bayjūrī al-. Ibrāhīm b. Muh.ammad
al-. Glossary of Fath
al-Qarīb by Ibn Qāsim al-Ghazzī (Texte Arabe, publie et traduit par
ordre du government neerlandais par L.W.C. Van Den Berg). Leiden: E.J. Brill,
1895. C5/I13312
Banānī,
Muh.ammad b. al-H...asan
al-. Glossary of the Commentary of al-Zurqānī on al-Mukhtas.ar by Khalīl.
Bukhārī,
Muh.ammad b. Ismā‘īl al-. Al-Jāmi‘ al-S.ah.īh.. C4/B932s
Fatāwā
al-Hindīyah, or Fatāwā
al-Alamkīrīyah. Vol. IV, pp. 60-194 (in Urdu). Lucknow, 1932
(C5/F252); vol. II, pp. 363-466 (in Arabic). Cairo. C5H/N7371
f
Burzulī,
Abū ’-Qāsim, Ah.mad b. Muh.ammad al-. [No title]
Dardīr, Ah.mad b. Muh.ammad
al-. Aqrab al-Masālik li-Madhhab
al-Imām Mālik. Cairo, 1374/1954; pp. 165-8. C5M/D115
Dasūqī,
Muh.ammad b. Ah.mad
‘Arafah al-. Glossary of the Commentary of al-Dardīr on al-Mukhtas.ar by Khalīl, vol. IV
Khalīl b.
Ish.āq.
Al- Mukhtas.ar.
Hamawī, Ah.mad b. Muh.ammad al-. Commentary of Kitāb al-Ashbāh wa ’l-Naz.ā’ir by Ibn Nujaym.
Kirshī,
Abū ‘Abd Allāh b. Muh.ammad al-. Commentary
of al- Mukhtas.ar by
Khalīl.
Ibn
‘Ābidīn, Muh.ammad Amīn Ābidīn. Commentary
on Radd Muhtār. Cairo, 1325
AH, vol. III C5H/I13079
r
‘Ās.im, Abū Bakr b. Muh.ammad al-Mālikī. Tuh.fat al-H...ukkām.
C5/I13145
Ibn Farh.ūn, Muh.ammad
b. ‘Alī. Kitāb al-Dībāj. Cairo
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Ibn
Nujaym, Zayn al-‘Ābidīn. Kitāb al-Ashbāh wa ’l-Naz.ā’ir vol. I, p. 304.
Ibn
Sa‘ad. Al-T.abaqāt. C903/I13754t
Maqrīzī,
Abū ’l-‘Abbās Muh.ammad
al-. Al-Khit.at.. Beirut. Vol. II, pp. 295-6. C10/M2978m
Marginānī,
Ah.mad b. Abū Bakr al.Al-Hidāyah,
translated by Charles Hammilton and Standish Grove Gravesend. Lahore, 1957.
Book XV, pp. 239-41 Of Waqf or Appropriations Concerning
Mosques, etc. C5H/M328h
Mayyārah,
Muh.ammad b. Ah.mad
al-Fāsī. Commentary of Tuh.fat al-H...ukkām
li Ibn ‘Āsim. Cairo, 1316 AH. P.
135-50. C5M/M217s
Muqaddasī
(al-Maqdisī), Muh.ammad b. Ah.mad al-Bashshārī al-. Ah.san al-Taqāsīm fī Ma‘rifat al-Aqālīm.
ranslated by Lanking and R.F. Azoo.
Calcutta, 1897-1910. C10/M197
Nawawī,
Abū Zakarīya Yah.yā b. Sharaf
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Qast.allānī, Abū ’l-‘Abbās Ah.mad b. Muh.ammad
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T.abarī, Abū Ja‘far Muh.ammad Ibn
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T.arābulsī, Burhān al-Dīn Ibrāhīm b. Mūsā al-. C5H/T176i ?
Tasūlī,
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al-Tuh.fah. Cairo. Vol. II, p.
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Tuwatī,
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Translated into French by Abribat
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li Khalīl.
MBb46/Z96
(?)
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(?)
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Caetani,
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Clavel,
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Goldziher,
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(?)
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(?)
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(?)
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