A (Arabic: وَقْف; pronounced as /ar/, plural ), also called a (plural Arabic: حُبوس or Arabic: أَحْباس), or mortmain property, is an inalienable charitable endowment under Islamic law. It typically involves donating a building, plot of land or other assets for Muslim religious or charitable purposes with no intention of reclaiming the assets.[1] A charitable trust may hold the donated assets. The person making such dedication is known as a ('donor') who uses a mutawalli ('trustee') to manage the property in exchange for a share of the revenues it generates.[2] In Ottoman Turkish law, and later under the British Mandate of Palestine, a was defined as usufruct state land (or property) from which the state revenues are assured to pious foundations.[3] It allows the state to provide social services in accordance with Islamic law while contributing to the preservation of cultural and historical sites.[4] Although the system depended on several hadiths and presented elements similar to practices from pre-Islamic cultures, it seems that the specific full-fledged Islamic legal form of endowment called dates from the 9th century AD (see below).
In Sunni jurisprudence,, also spelled (Arabic: وَقْف; plural Arabic: أَوْقاف, ; Turkish: vakıf)[5] is synonymous with (Arabic: حَبْس, also called Arabic: حُبْس or Arabic: حُبْوس and commonly rendered French: habous in French).[6] Habs and similar terms are used mainly by Maliki jurists.[6] In Twelver Shiism, is a particular type of, in which the founder reserves the right to dispose of the property.[6] The person making the grant is called (or) while the endowed assets are called (or).[6]
In older English-language law-related works in the late 19th/early 20th centuries, the word used for was vakouf;[7] the word, also present in such French works, was used during the time of the Ottoman Empire, and is from the Turkish Turkish: vakıf.
The term literally means 'confinement and prohibition', or causing a thing to stop or stand still.[8] According to Islamic law, once an asset has been donated as waqf it cannot be sold, transferred or given as a gift.[9] Once a waqif has verbally or in writing declared a waqf property, it is legally conceived as the property of Allah (swt) and must be used to "fulfill public of family needs" as a charitable social service.[10] A waqf property can fall into one of two categories: movable or immovable. A 'movable' asset includes money or shares which are used to finance educational, religious or cultural institutions such as madrasahs (Islamic schools) or mosques. The madrasahs and mosques themselves are an example of an 'immovable' asset which refers to land or structures open for public use. An important function of the latter is also to provide shelter and community spaces to the poor, also known as the mawquf 'alayh (beneficiaries).[11]
Bahaeddin Yediyıldız defines as a system comprising three elements:,, and ., the plural form of, means 'goodnesses' and refers to the motivational factor behind the Turkish: vakıf organization; refers to corpus and literally means 'real estates,' implying revenue-generating sources such as markets (etc.), land, and baths; and, in its narrow sense, is the institution(s) providing services as committed in the Turkish: vakıf deed, such as, public kitchens,, mosques, libraries, etc.
Generally, the must fulfill three primary constraints:
Although there is no direct Quranic injunction regarding, it can be inferred from Surah Al-i'-Imran (3:92): "You will never achieve righteousness until you donate some of what you cherish. And whatever you give is certainly well known to Allah." Their formal conception in Islamic society has been derived from a number of hadiths. It is said that during the time of Muhammad, after the Hijrah, the first was composed of a grove of 600 date palms. The proceeds of this were meant to feed Medina's poor.[12]
In one tradition, it is said that: "Ibn Umar reported, Umar Ibn Al-Khattab got land in Khaybar, so he came to Muhammad and asked him to advise him about it. Muhammad said, 'If you like, make the property inalienable and give the profit from it to charity.' It goes on to say that Umar gave it away as alms, that the land itself would not be sold, inherited, or donated. He gave it away for the poor, the relatives, the slaves, the jihad, the travelers, and the guests. It will not be held against him who administers it if he consumes some of its yield in an appropriate manner or feeds a friend who does not enrich himself by means of it."[13]
In another hadith, Muhammad said, "When a man dies, only three deeds will survive him: continuing alms, profitable knowledge, and a child praying for him."[14] [15]
Islamic law places several legal conditions on the process of establishing a .
A is a contract; therefore, the founder (called or in Arabic) must be capable of entering into a contract. For this, the founder must:
Although is an Islamic institution, being a Muslim is not required to establish a, and may establish a . Finally, if a person is fatally ill, the is subject to the same restrictions as a will in Islam.
Some of the founders of Ottoman were women, with their establishments having a crucial impact on their communities' economic life.[16] Out of 30,000 certificates documented by the GDPFA (General Directorate of Pious Foundation in Ankara), over 2,300 of them were registered to institutions that belonged to women. Of the 491 public fountains in Istanbul that were constructed during the Ottoman period and survived until the 1930s, nearly 30% of them were registered under that belonged to women.
The property (called or) used to found a must be objects of a valid contract. The objects should not themselves be haram (e.g. wine or pork). These objects should not already be in the public domain: public property cannot be used to establish a waqf. The founder cannot also have pledged the property previously to someone else. These conditions are generally true for contracts in Islam.
The property dedicated to is generally immovable, such as an estate. All movable goods can also form, according to most Islamic jurists. The Hanafis, however, also allow most movable goods to be dedicated to a with some restrictions. Some jurists have argued that even gold and silver (or other currency) can be designated as .
Documents listing endowments (waqfiyyas) often include the name of the endower, the listed property or fiscal unit, the endowed fraction (in 24-qarats), and a description of its boundary. The boundary descriptions start in Islamic direction of prayer and go counterclockwise by listing different landscape elements. Endowment deeds most often include the conditions of the endowment and its administration.[17] [18]
The beneficiaries of the can be individuals and public utilities. The founder can specify which persons are eligible for benefits (such as the founder's family, the entire community, only the poor, travelers). Public utilities such as mosques, schools, bridges, graveyards, and drinking fountains can be the beneficiaries of a . Modern legislation divides the into "charitable causes," where the beneficiaries are the public or the poor, and "family", where the founder designates their relatives as beneficiaries. There can also be multiple beneficiaries. For example, the founder may stipulate that half the proceeds go to their family, while the other half goes to the poor.
Valid beneficiaries must satisfy the following conditions:
There is dispute over whether the founder themselves can reserve exclusive rights to use . Most scholars agree that once the is founded, it cannot be taken back.
The Ḥanafīs hold that the list of beneficiaries includes a perpetual element; the must specify its beneficiaries in case.[19]
The declaration of founding is usually a written document, accompanied by a verbal declaration, though neither are required by most scholars. Whatever the declaration, most scholars (those of the Hanafi, Shafi'i, some of the Hanbali and the Imami Shi'a schools) hold that it is not binding and irrevocable until actually delivered to the beneficiaries or put to their use. Once in their use, however, the becomes an institution in its own right.[19]
Usually, a has a range of beneficiaries. Thus, the founder makes arrangements beforehand by appointing an administrator (called or or) and lays down the rules for appointing successive administrators. The founder may choose to administer the during their lifetime. In some cases, however, the number of beneficiaries is quite limited. Thus, there is no need for an administrator, and the beneficiaries themselves can take care of the .[19]
The administrator, like other persons of responsibility under Islamic law, must have the capacity to act and contract. In addition, trustworthiness and administrative skills are required. Some scholars require that the administrator of this Islamic religious institution be a Muslim, though the Hanafis drop this requirement.[19]
A is intended to be perpetual and last forever. Nevertheless, Islamic law envisages conditions under which the may be terminated:[19]
The practices attributed to Muhammad have promoted the institution of from the earliest part of Islamic history.[21]
The two oldest known (deed) documents are from the 9th century, while a third one dates from the early 10th century, all three within the Abbasid Period. The oldest dated goes back to 876 CE and concerns a multi-volume edition of the Qur'an currently held by the Turkish and Islamic Arts Museum in Istanbul. A possibly older is a papyrus held by the Louvre Museum in Paris, with no written date but considered to be from the mid-9th century. The next oldest document is a marble tablet whose inscription bears the Islamic date equivalent to 913 CE and states the status of an inn, but is in itself not the original deed; it is held at the Eretz Israel Museum in Tel Aviv.[22]
The total number of registered endowments in Saudi Arabia is 33,229.[23]
See main article: Jerusalem Waqf. In the 16th century, the Haseki Sultan Complex charitable complex was founded by the wife of Suleyman the Magnificent and serviced 26 villages; the institution also included shops, a bazaar, two soap plants, 11 flour mills and two bathhouses located in Ottoman Syria (now Palestine, Israel and Lebanon.[12] For several centuries, the income generated by these businesses contributed in the maintenance of a mosque, a soup kitchen, and two traveler and pilgrim inns.[12]
The earliest pious foundations in Egypt were charitable gifts, and not in the form of a . The first mosque built by 'Amr ibn al-'As is an example of this: the land was donated by Qaysaba bin Kulthum, and the mosque's expenses were then paid by the . The earliest known, founded by financial official Abū Bakr Muḥammad bin Ali al-Madhara'i in 919 (during the Abbasid period), is a pond called Birkat Ḥabash together with its surrounding orchards, whose revenue was to be used to operate a hydraulic complex and feed the poor.
Early references to in India can be found in the 14th-century work by Aynul Mulk ibn Mahru. According to the book, Muhammad of Ghor dedicated two villages in favor of a congregational mosque in Multan, and, handed its administration to the Shaykh al-Islām (highest ecclesiastical officer of the Empire). In the coming years, several more were created, as the Delhi Sultanate flourished.
As per the Wakf Act 1954 (later Wakf Act 1995) enacted by the government of India, are categorized as (a) by user such as graveyards, (Sarai) and Chowltries etc., (b) under (Service Inam) such as Khazi service, Nirkhi service, Pesh Imam service and Khateeb service etc., and (c) Wakf Alal-aulad is dedicated by the Donor (Wakif) for the benefit of their kith and kin and for any purpose recognised by Muslim law as pious, religious or charitable. After the enactment Wakf Act 1954, the Union government directed to all the states governments to implement the Act for administering the wakf institutions like mosques, dargahs, hussainiyas, graveyards,,, anjumans, and various religious and charitable institutions. A statutory body under Government of India, which also oversees State Wakf Boards.[24] In turn the State Wakf Boards work towards management, regulation and protect the Wakf properties by constituting District Wakf Committees, Mandal Wakf Committees and Committees for the individual Wakf Institutions. As per the report of Sachar Committee (2006) there are about 500,000 registered Wakfs with 600000acres land in India, and Rs. 60 billion book value.[25]
While it is difficult to pinpoint the historical origins of waqf in East Africa, the practice began to formalize in the 17th Century after the Sultan of Oman, Sayyid Saïd, had cemented his control over Zanzibar and the East African coastline.[26] Until this point, archeological evidence has unearthed several old mosques along the Swahili Coast which are believed to be informal waqf dating as far back as the 8th Century.[27] The formalization of waqf can be traced back to 1820 when Sultan Said moved the Omani Sultanate to Stone Town, Zanzibar. This marked a shift from waqf as an Islamic scriptural imperative to a local and centralized institutional practice legitimated by the royal family. From this point onward, the urban development of the port city of the East African archipelago was shaped by waqf practices. As such, the majority of greater Stone Town became waqf property made available for free habitation or cemeteries by noblemen, approximately 6.4% of which was public housing for the poor.
It is important to note that economic changes in Zanzibar shaped waqf practices overtime. Under Omani rule slavery and the cash crop industry was booming, specifically because of the exportation of spices, which strengthened the elite class of the Omani aristocracy.[28] In the context of growing inequality, the nobility used waqf to provide public housing to slaves and peasants as well mosques, madrasahs and land for free habitation and cultivation. For instance, all 66 mosques in Stone Town were waqf privately financed and owned by noble waqif as a display of social status and duty to their neighborhood.[29] Under this system, the architectural configuration of Stone Town was entirely managed by the Sultanate and its network of nobility. This effectively allowed elites to practice zakat through waqf while doubling as a means to secure control over the local population.
The East African archipelago underwent an economic recession from 1860 to 1880 that threatened the private property of the elite class.[30] In a time when landowners were forced to sell or mortgage their properties to foreign investors, waqf became a means to legally safeguard properties under conditions of debt. In donating assets to the public, the aristocracy managed to preserve their wealth while providing land, financial support and community spaces such as mosques to the general public.
When Zanzibar became a British protectorate in 1890, almost half the island was waqf property.[31] In order to establish control, the British realised that they would either have to privatise waqf or gain administrative control over them. A series of decrees were subsequently issues to incorporate all waqf properties into the colonial bureaucracy. The Waqf Property Decree which formed the Waqf Commission in 1905 was composed of a majority of British officials and a minority of Islamic authorities to represent the Sultanate who maintained a degree of influence over the island.[32] This shift marked the further formalization of waqf into the state apparatus, a move which allowed the English to directly control the preservation and maintenance of publicly used assets as well as the surplus revenues generated from them. It was also part of what Ali Mazrui calls the 'dis-Islamization' and 'de-Arabization' of Swahili culture by British colonialism, a strategy used to rid the territory of Omani influence.[33] While Mazrui speaks of this in the context of the Swahili language, it can also be seen by the way in which the British deviated from the Islamic values underpinning waqf practices. What was initially intended as a charitable practice that would provide social services was replaced by a focus on profit over public welfare.[34] This ruptured the social and political relations that were formed between the upper and lower classes during Omani rule as the underlying values used to manage waqf were lost in translation.
The Zanzibari Revolution which followed a year after independence in 1963 installed a new government under the helm of the Afro-Shirazi Party (ASP).[35] An important part of the revolution was the prosecution of the Zanzibari elite of Arabic descent. This left a significant portion of land, much of which was waqf, to be nationalised by the newly independent state as part of their socialist development programme. The revolution highlights a crucial turn point in waqf institutions in Zanzibar, namely the 'public' ownership of these assets that disposed of the need for a waqif. In this way, waqf was further cemented as a political institution regulated by a centralized state while being managed by mutawallis. It allowed the poorest inhabitants of Stone Town to reside in waqf buildings that were previously reserved for the relatives of waqif families. While this may appear to be an act of good fortune, the nationalisation of all waqf assets led to the loss and destruction of many properties because of a lack of funding because the state did not have the means to preserve waqf as effectively as it were under the private control of waqif nobility.[36]
According to Bowen, when practicing Islam, Muslims "engage in a dialogue between potentially conflicting cultural orders: the universalistic imperatives of Islam (as locally understood) and the values embedded in a particular society".[37] While Bowen analyzes how Islamic rituals are practiced in context, this logic can arguably be applied to how the history of waqf in Zanzibar is shaped by "local cultural concerns and to universalistic scriptural imperatives".[38] In fact, this conflict is evident in the way in which waqf has historically served a dual purpose in Zanzibar; to satisfy the inalienable Islamic law of waqf as a source of charity and thereby public welfare while doubling as a tool of domination used by the ruling class to maintain the dependence of the lower classes. While the former was somewhat preserved as a scripture-based normative foundation of waqf institutions, the nature and dynamics of the latter was contingent on the nature and dynamics of regime changes in Zanzibar. Under Omani rule, waqf was practiced by the aristocratic class as an outward demonstration of Islamic piety while simultaneously serving as a means to control slaves and the local population through social housing, educational facilities and religious institutions like mosques. When an economic recession threatened the position of the elite, noblemen used waqf to maintain ownership of their properties to avoid selling or mortgaging their land thereby altering the economic function of the practice. After the British gained control of Zanzibar and further formalized waqf as a political institution, it was used to culturally subvert the local population and gradually rid it off its Arabic origins. This persisted after independence when the newly independent state sought to further eliminate Arabic influence by nationalizing all waqf properties as a means to gain control of private property.
The waqf institutions were not popular in all parts of the Muslim world. In West Africa, very few examples of the institution can be found, and were usually limited to the area around Timbuktu and Djenné in Massina Empire. Instead, Islamic west African societies placed a much greater emphasis on non-permanent acts of charity. According to expert Illife, this can be explained by West Africa's tradition of "personal largesse." The imam would make himself the collector and distributor of charity, thus building his personal prestige.[39]
According to Hamas, all of historic Palestine is an Islamic waqf. This belief, a relatively recent one, forms part of the group's mythology.[40]
In Southeastern Europe, there are several places in Bosnia and Herzegovina that were originally built under the waqf system, such as Gornji Vakuf, and Donji Vakuf.
After the Islamic waqf law and madrassah foundations were firmly established by the 10th century, the number of Bimaristan hospitals multiplied throughout Islamic lands. By the 11th century, many Islamic cities had several hospitals. The waqf trust institutions funded the hospitals for various expenses, including the wages of doctors, ophthalmologists, surgeons, chemists, pharmacists, domestics and all other staff, the purchase of foods and medicines; hospital equipment such as beds, mattresses, bowls and perfumes; and repairs to buildings. The waqf trusts also funded medical schools, and their revenues covered various expenses such as their maintenance and the payment of teachers and students.
From the more peculiar examples of healthcare-related waqfs, in the city of Tripoli, a man had set up a waqf which employed two people who would "walk through the hospitals every day and speak quietly to one another in the patients' hearing, remarking on their improvement and good colour".
The waqf in Islamic law, which developed in the medieval Islamic world from the 7th to 9th centuries, bears a notable resemblance to the English trust law. Every waqf was required to have a waqif (founder), mutawillis (trustee), qadi (judge) and beneficiaries. Under both a waqf and a trust, "property is reserved, and its usufruct appropriated, for the benefit of specific individuals, or for a general charitable purpose; the corpus becomes inalienable; estates for life in favor of successive beneficiaries can be created" and "without regard to the law of inheritance or the rights of the heirs; and continuity is secured by the successive appointment of trustees or mutawillis."
The only significant distinction between the Islamic waqf and English trust was "the express or implied reversion of the waqf to charitable purposes when its specific object has ceased to exist", though this difference only applied to the waqf ahli (Islamic family trust) rather than the waqf khairi (devoted to a charitable purpose from its inception). Another difference was the English vesting of "legal estate" over the trust property in the trustee, though the "trustee was still bound to administer that property for the benefit of the beneficiaries." In this sense, the "role of the English trustee therefore does not differ significantly from that of the mutawalli."
Personal trust law developed in England at the time of the Crusades, during the 12th and 13th centuries. The Court of Chancery, under the principles of equity, enforced the rights of absentee Crusaders who had made temporary assignments of their lands to caretakers. It has been speculated that this development may have been influenced by the waqf institutions in the Middle East.