Volume IV, Issue II (April 2006) - Columbus School of Law

charitable waqf for the benefit of the poor. 79 A Hadīth also speaks of the prophet Muhammaddirecting his Companion (and second successor to the caliphate) to establish a waqf, and sets forthclearly many of the conditions of this form of charity:Ibn ‘Umar reported, ‘Umar ibn al-Khattāb got land in Khaibar; so he came to theProphet, peace and blessings of Allah be on him, to consult him about it. He said, OMessenger of Allāh! I have got land in Khaibar than which I have never obtained morevaluable property; what dost thou advise about it? He said: “If thou likest, make aproperty itself to remain inalienable, and give (the profit from) it in charity.” So ‘Umarmade it a charity on the condition that it shall not be sold, nor given away, nor inherited,and made it a charity among the needy and the relatives and to set free slaves and in theway of Allāh … 80According to Tradition, after making the above-described waqf, ‘Umar decided to declare it inwriting and he invited some of the Prophet’s Companions to attest the document. According toJaber, one of the Companions, when word got around of what ‘Umar was doing, other real estateowner’s starting creating their own awqaf. Supposedly, some of them not only created awqaf forthe benefit of the needy, but also included a condition that their own children and descendantsshould have priority to the waqf revenues, with only the surplus going to benefit the poor. 81 Thiswas apparently the genesis of the third type of waqf, the family or posterity waqf. Soon, Islamicjurists rested authority for this type of waqf institution on sayings attributed to the prophetMuhammad -- such as, ‘It is better to leave your heirs rich than to leave them destitute, beggingfrom others’ and ‘One’s family and descendents are fitting objects of charity … To bestow onthem and to provide for their future subsistence is more pious and obtains greater reward than tobestow on the indigent stranger.’ 82 Indeed, a Hadīth reports that, at the express recommendationof the Prophet, a certain Abu Talha created a waqf of his expansive date-palm garden from whichthe wealth was to be disributed among his relatives. 83Of the three types of awqaf, the family waqf was the most troubling to most rulers of Islamic andpredominantly-Islamic states. 84 Unlike the religious and purely philanthropic awqaf, the familywaqf usually added little in the way of social services, 85 yet it took away part of the state’s taxbase and protected properties from confiscation in times of fiscal emergency. As such, rulerssought to curb the creation of family awqaf by their Muslim subjects. Particularly in Islamicstates, however, they also had to walk a fine line between discouraging certain awqaf and79 Ibid; Monzer Kahf, ‘Waqf: A Quick Overview’ [undated, unpublished paper] < http://monzer.kahf.com/papers/english/WAQF,%20A%20QUICK%20OVERVIEW.pdf > at 20 June 2005.80 Maulānā Muhammad ‘Alī, above n 43, 275 [14].81 Kahf, above n 70, 4.82 See, e.g., Kuran, above n 72, 855; David S. Powers, ‘The Islamic Family Endowment (Waqf)’ (1999) 32Vanderbilt Journal of Transnational Law 1167, 1176; Jeffrey A. Schoenblum, ‘The Role of Legal Doctrinein the Decline of the Islamic Waqf: A Comparison with the Trust’ (1999) 32 Vanderbilt Journal ofTransnational Law 1191, 1207-8.83 Muhammad Ismâ'îl al-Bukhârî, Hadīth 4:30 < http://www.sacredtexts.com/isl/bukhari/bh4/bh4_29.htm>;see also, Maulānā Muhammad ‘Alī, above n 44, 516.84 More recent governments have shared these concerns, for various reasons, including for example theBritish Raj in South Asia which declared invalid family awqaf and, subsequently re-validated them, andthen placed regulatory strictures on them. See discussion, below, pp. 25-26.85 It should be noted that, owing to the social norms of the time, even family awqaf apparently did deliversome social service: one empirical study of Ottoman awqaf shows that only 7% of awqaf registered duringthe 18 th century did not provide any service outside the founder’s family; as many as 75% were familyawqaf that also served non-family interests, and the remaining 18% were strictly charitable awqaf. Kuran,above n 72, 858.18