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

a dynamic part of civil society -- and particularly as historically promoted by one such institution,the Islamic trust or waqf -- is the primary focus of this article. Indeed, the waqf (pl. awqaf) hasbeen for many centuries a mainstay component of civil society in Muslim countries. Today,awqaf are enjoying a resurgence in Muslim society, both in the traditionally Muslim countries ofthe Middle East and in the Muslim-dominated countries of Asia. In these countries, the stateexpressly permits the establishment of awqaf through various enabling legislation, although italso strictly regulates and administers the creation and management of awqaf through diversebureaucratic vehicles such as government waqf administrators and boards. As an illustration ofsuch strict bureaucratic regulation, the regulatory framework in Pakistan is reviewed generally inthis article. It is suggested that especially in Pakistan -- where issues of control (and often cooption)by the government of various actors in civil society, as well as corruption and lack oftransparency within the civil society institutions themselves, are predominant concerns -- thewaqf is inherently an institution which can allay many of these concerns and, at the same time,may provide a further dividend well-beyond mere temporal concerns.II.CIVIL SOCIETY IN ASIA: DEFINITION AND CONCEPTSCivil society in Asia, as well as in the rest of the world, is not easily susceptible of definition. Itis a concept which has changed in meaning from earliest discussions by Cicero and other Romanand Greek philosophers (who, perhaps ironically, used the term to refer to the state andcivilization based on rule of law); through modernization of the concept by Thomas Paine andGeorg Hegel as a ‘domain parallel to but separate from the state’; 2 and then more recentlythrough the writings of Karl Marx (who saw civil society as ‘crass materialism’ emerging out ofcapitalism 3 ) and neo-Marxist theorist Antonio Gramsci, who championed civil society as therealm of independent and autonomous political association, holding in check the tyranny of thestate. 4 As various scholars struggle to define it, ‘the term “civil society” is an evolving and oftencontested construct whose meaning has varied in different times and places. 5One of the simplest (and perhaps most often-quoted) contemporary definitions of ‘somethingcalled civil society’ was succinctly stated by the late philosopher/sociologist Ernst Gellner in oneof the Tanner Lectures on Human Values at Harvard in 1990: ‘Civil society, in the relevantsense, is first of all that part of society which is not the state. It is a residue.’ 6 That perhaps vaguedefinition, while at first blush seemingly over-broad and too all-inclusive, is in actuality quiteaccurate. Civil society, as that term is used in contemporary political philosophy, subsumesvirtually all aspects of society in our world today, except for the state itself. Although ‘some civilsociety enthusiasts have propagated the misleading notion that civil society consists only of noblecauses and earnest, well-intentioned actors,’ civil society also has been characterized colorfully asliterature, as well as in common parlance, regarding the meaning of ‘philanthropy’ and ‘charity.’ Manysources quoted in this paper use the terms interchangeably, and every effort will be made to clarify theusage in the relevant context.2 Thomas Carothers, ‘Civil Society’ [Winter 1999-2000] Foreign Policy 18, 19.3 See, generally, Ishtiaq Ahmed, ‘Civil Society and South Asia’, Daily Times (Pakistan), 25 August 2002, at 29 June 2005.4 Not too surprising, given that Gramsci was miserably persecuted by the state, ultimately dying in prisonsolitude. See, generally, Antonio Gramsci, Selections from the Prison Notebooks (Quinton Hoare andGeoffrey Nowell Smith, eds and trans, 1971) [trans of selected texts from Quaderni del carcere].5 Errol E. Meidinger, ‘Environmental Law: Forest Certification’ (2001) 10 Buffalo Environmental LawJournal 211, 226.6 Andre Ernst Gellner, ‘The Civil and the Sacred,’ (Speech delivered at the Tanner Lectures on HumanValues, Harvard University, 20-21 March 1990) , at 07 July 2005.8