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

ARTICLESTHE ROLE OF THE ISLAMIC WAQF IN STRENGTHENINGSOUTH ASIAN CIVIL SOCIETY: PAKISTAN AS CASE STUDYBY ANDREW WHITE *I. INTRODUCTIONCivil society -- basically the residual parts of society which fill the interstices between the Stateand the individual -- has rapidly become the faddish ‘hula hoop’ or ‘new black’ of contemporarypolitical philosophy. Much is being written and discussed by political theorists, lawyers, andgovernment policy wonks about the positive effects of a strong civil society. Benefits are toutedfor such wide-ranging priorities as democraticization and good governance, the rule of law,environmental regulation, gender equality, employment/labor rights, and poverty reduction.Although a strong civil society may not be quite the universal panacea for society’s ills that manyare seeking, it undeniably can be a powerful step in the direction of better government (moretransparency and less corruption), better wealth-distribution (greater poverty reduction), andbetter provision of public services both in place of and ancillary to services provided by the Stateto its citizens.Even more fashionable than debates centered on civil society, Islam and its various movementsand belief-systems also has arisen as an enthusiastic topic of not only theological but alsopolitical discourse, especially following the tragic events of September 11, 2001 in the UnitedStates. Motivated in no small part by the confusion and fear (perhaps bordering on paranoia)instilled in many of us in the ‘West’ by, among others, a new crop of cocktail party ‘Islamicists,’fundamentalist Christian evangelists, and the popular press, Islam generally is perceived as a darkcounterpart to all the presumed virtues of (especially Western-based) civil society. It is popularlytouted as a threat to principles of democracy and good-governance, a threat to individualfreedoms and rights (especially for women), and in many ways a threat to civil society and all ofits accomplishments.Fundamental to this juxtaposition of civil society and Islam as countervailing forces, eachfighting on the battlefield of developing nations, is not only the lack of clarity regarding theconcepts and institutions which comprise both civil society and Islam, generally, but also a lackof understanding regarding Islamic principles and institutions which historically have beenfundamental to Islam and its adherents. The central role of philanthropy and charity 1 in Islam, as* Andrew White is a sessional Lecturer in the Faculty of Law and a researcher in the Asian Law Centre atthe University of Melbourne in Australia, where he is completing LL.M. studies in Asian and Islamic lawand will commence a Ph.D. in July. He previously practiced law in the U.S. and Europe as principal in hisown law firm in North Carolina, as a senior attorney in a law firm in Germany, and as a partner in a majorinternational law firm based in Washington, D.C. The author would like to thank Prof. Mark Sidel of theUniversity of Iowa College of Law (Visiting Professor at University of Melbourne and Harvard University)for his insights and suggestions with regard to this article.1 In this paper, the term ‘philanthropy’ will be used to describe the realm of broad benevolence whichserves the public benefit, often through long-term institutional delivery of public services. ‘Charity’, on theother hand, is more narrowly defined as relief of an immediate need, such as aid to the homeless or victimsof a disaster. This will be particularly relevant in the context of zakāt and sadaqah. See, e.g., ZafarHameed Ismail and Quadeer Baig, ‘Philanthropy and Law in Pakistan’ in Mark Sidel and Iftekhar Zaman(eds), Philanthropy and Law in South Asia (2004) 245, 254. There is much confusion even in scholarly7