Joseph Schacht: Early Doctrines on Waqf

DİL VE TARİH - COĞRAFYA FAKÜLTESİ TARAFINDAN NEŞREDİLMİŞTİR

PUBLIÉ PAR LA FACULTÉ DES LETTRES D’ANKARA

60. doğum yıh münasebetiyle

FUAD KÖPRÜLÜ ARMAĞANI

MÉLANGES FUAD KÖPRÜLÜ

Osman Yalçin Matbaasi

İstanbul — 1953

pp. 444-452

EARLY DOCTRINES ON WAQF

Joseph Schacht, Oxford

I have great pleasure in presenting this paper to a scholar who has himself made no mean contribution to the study of the institution of waqf and who, in his article on fiqh in the Turkish Islām Ansiklopedisi, has shown the extent and the depth of his interest in Muhammadan law and jurisprudence.

The origin of the institution of waqf cannot be traced to any single source; it is, as Heffening and Santillana have seen[1], the result of the combination of several factors and various elements which were intimately* fused during the formative period of Muhammadan law. In this paper, I do not intend to discuss again the ingredients which went into the making of the institution of waqf; I rather propose to draw attention to some early doctrines concerning it which, it seems to me, are apt to throw new light on the development of its theory. The main sources for these early doctrines are the Mudauwana of Saḥnūn (d. 240), a work which contains the opinions of Mālik (d. 179), of Ibn Qāsim (d. 191), and of other early authorities of Medina, the Kitab Ahkām al-Waqf by Hilāl (d. 245), a work which contains authentic information on the doctrines of Abū Ḥanīfa (d. 150), of Abū Yūsuf (d. 182), and of other early Iraqian authorities, the Kitāb al-Siyar al Kabīr of Shaibānī (d. 189), who in this book, mainly concerned with the law of war, has occasion to deal with an important aspect of waqf, and the Kitāb al-Umm of Shāf‘I (d. 204) in which the author works but his own doctrine in polemical discussion with his Medinese and Iraqian predecessors[2]. These texts, and a few others, [*444] carry us straight into the formative period of Muhammadan jurisprudence concerning waqf. In this connexion, I should like to formulate the self evident methodical rule that information on the doctrine of a given author ought to be sought in his own writings or at least in more or less contemporary sources; the simplified and systematized statements of later handbooks should not be taken as reliable evidence on the teaching of the early authorities. I shall begin with the doctrine of Medina, because the conclusions at which I arrived in my Origins of Muhammedan Jurisprudence[3] show that the ancient Medinese doctrine, though often dependent on Iraqian opinion, usually lags behind it and therefore represents an earlier stage.

II.

The first salient feature of the doctrine of Mālik and his companions on waqf, as expounded in the Mudauwana, is the important place taken by contributions to the holy war, ḥabs fī sabīl Allāh. If a benefactor uses the expression fī sabīl Allāh without further specification, it is considered to refer to the holy war. In the majority of the cases discussed, the objects of these charities fī sabīl Allāh are movables, such as horses, weapons, and garments; according to Ibn Qāsim, also slaves may be givwen and employed for purposes of the holy war. Speaking of the ḥabs of movables, Ibn Qāsim distinguishes three kinds: (a) for individuals, (b) for the poor, (c) fī sabīl Allāh. The movables given fī sabīl Allāh are intended to be used up by normal wear and tear; the doctrine concerning their disposal when they become unsuitable for further use in war is somewhat uncertain; YaḤmā b. Sa‘id (d. 143) deals with a case which must often have presented itself in practice, of a man who sells a horse which had been given to him as ḥabs, by which is obviously meant the ḥabs fī sabīl Allāh and is mentioned [*445] rather in contrast to it. In another passage (XV. 99), Mālik deals with the case of a man who by legacy makes his house a ḥabs, but thinks that in a place like Alexandria, where the majority of ḥubus is fī sabīl Allāh, the administrator is probably entitled to use his discretion in the matter and to devote the ḥabs to this last purpose. In analogy with other passages in the Mudauwana, where Mālik deals with the ḥabs of houses (XV. 107, 111), we must conclude that the house is to be used fo rhte accommodation of warriors. Hilāl refers to the same custom (see below). According to Rabi‘a (d. 136), every ḥabs or ṣadaqa (he uses both words as synonyms, as many ancient Medinese do) is to be used in the most appropriate way; animals in the holy war, and the produce of property in any way proper to a ṣadaqa (an allusion to Sura IX. 60) that the administrator may decide XV, 98 f.).

In Iraq, Shaibāni deals at length with contributions to the holy war in his Iitāb al-Siyar al-Kabir. In the chapter entitled al ḥabīs fū sabūl Allāh (IV. 248251), he speaks of contributions of horses and weapons; the problems and the solutions are similar to those found in the Mudauwana; an isolated passage (II. 214-217) gives additional details. The long chapter that immediately follows the first (IV. 251-281) deals, in addition, with contributions of money, either outright or by legacy; unless a specific purpose is prescribed, it is used for equipping and paying warriors.

In the time of Hilāl, the practical importance of the waqf fī sabīl Allāh, though it was always recognized in theory, had greatly diminished, Hilāl mentions the holy war as one of the legitimate purposes of a waqf (p. 10), and singles out the construction of a house in a frontier post as accommodation for the warriors fī sabīl Allāh as a valid kind of waqf (p. 18). In another passage he says that the waqf (or the ṣadaqa mauqūfa, as he calls it) of animals, merchandise, and garments is not valid; it is valid, he says, in houses and land only, and in horses or mules and weapons oif they are made a ṣadaqa mauqB;fa fī sabīl Allāh (p. 16. F.). The general exclusion of movables represent s the Ḥanali doctrine of his time; the exemption in favour of contributions to the holy war is a concession to an ancient practice which had found full recognition in the school of Medina.

In Shāfi‘i’s doctrine, too, this ancient kind of waqf or ḥabs has left its traces. Shāfi‘i defines the waqf technically as a ṣadaqa mu-[*446] -ḥarrama mauqūfa, to which he assimilates mā subbila maḥbūsan, which means «that which has been made a ḥ fī sabīl Allāh» (Umm III. 274). He thereby distinguishes between the ordinary waqf which according to him is permanent, its use or profit only being devoted to the purpose for which the waqf has been created, and the contribution to the holy war which, Snāfi‘i is clear, is to be used up; but this distinction has no further importance in his doctrine.

All this shows the great practical importance that the ḥabs fī sabīl Allāh, particularly in the frontier posts of Islam, possessed during the whole of the second century. This kind of ḥabs continued the ṣadaqa fī sabīl Allāh, which many passages of the Koran had consistently and forcefully enjoined upon the believers in Medina. The practice of individual contributions to the holy war during the first generations of Islam was an important constituent factor of the institution of waqf.

III.

The ancient Medinese doctrine, which has survived in the Māliki school, recognizes a temporary ḥabs in favour of a determined person or number of persons, after whose death it reverts to the original owner or to his heirs. This doctrine is expressed, for instance, in a statement reported by Ibn Wahb (d. 192) with an isrād of two transmitters. «It is held that if a man makes a ḥabs in favour of another without saying, and for your posterity after you, it reverts to him, or to his heirs under the normal rules of inheritance, if he dies before the beneficiary or the beneficiaries of the ḥbs» (Mud. XV. 102). Ibn Wahb ascribes a similar doctrine, with an isnād of one transmitter, to Abul Zinād (d. 130): «A ḥabs made in favour of a man and of his children, as long as they live, with the provision that it shall not be sold or made a gift or inherited, after their extinction reverts to the next of kin of him who made it a ḥabs and a ṣadaqa» (ibid. 103). This is on the doctrine of Rabi‘a, reported by Ibn Wahb on the authority of the same transmitter; «If a man makes his house a ḥabs in favour of his children and the children of another man, they inhabit it until they die out; then his own next of kin take it back, grandchildren or others, and not the next of kin of those whom he associated with his children»; (ibid. 102 f.).

This reversible ḥabs or ṣadaqa was called mauqūf(a) from Rabi‘a onwards. Saḥnūn relates that Rabi‘a said: «A ṣadaqa mauqūfa which [*447] can be sold comes into being if a man makes a ṣadaqa in favour of one or more individually determined persons — meaning: for as long as they live, and not mentioning their posterity; this is a ṣadaqa mauqūfa, and its original owner may sell it, if he so wishes, after it has reverted to him» (ibid. 102). The kind of ṣadaqa which Rabi‘a has in mind is identical with the ṣadaqa in the first passage quoted from Ibn Wahb, Saḥnūn reports that «some of Mālik’s authorities held that every ḥabs or ṣadaqa in favour of future persons is a ḥabs mauqūf, for instance if the benefactor uses the words ‘for my children’, without mentioning them by name; in this case any future children of his are beneficiaries too; the same applies if he sayus: ‘for my children and any future children of mine’, and this too is a ḥabs in favour of unknown future persons» (ibid. 101). The actual terminology of these anonymous authorities of Melik differs from that of Rabi‘a because Rab‘a uses the term mauqūfa of a ṣadaqa in favour of one or more individually determined persons. It seems that Rabi‘a’s usage was the original one, and the other secondary. In any case, this does not effect [sic] the meaning of mauqūf itself.

If we read the passages in question as they stand, dismissing from our minds the later terminological meaning of waqf and mauqūf, the word takes on its obvious and natural meaning of «provisional», «left in suspense». A ṣadaqa mauquūfa or a ḥabs mauqūf is originally, in Rabi‘’s archaic doctrine and terminology, a charity which reverts to the original owner or his heirs, after the beneficiary or the beneficiaries, who must necessarily be a limited number, have died out. In the doctrine of the anonymous scholars, it refers to a charity which reverts in the same way after an indetermined but nevertheless limited group of beneficiaries has died out. This kind of charity is opposed to the perpetual charity in favour of the poor, and also to the quasi-perpetual charity in favour of a man and of his posterity. Mauqūf, in Rabi‘a’s doctrine, did not, as yet, express the later concept of waqf.

The term mauqūf acquired its later meaning as the consequence of a doctrinal development. On one hand, the term mauqūf was transferred (or perhaps extended) to charities in favour of indetermined groups of beneficiaries, as in the doctrine of the anonymous scholars; on the other, the doctrine gradually prevailed that such a charity should revert to the original owner not as full property, to be inherited by his heirs, but only as a ḥabs, that is to say, in usufruct, to be transmitted to his next of kin, or that, even as a ḥabs it [*448] should not revert to the original owner at all, but only to his next of kin. Mālik’s doctrine, as stated by Ibn Qāsim, represents a stage of transition (Ibid. 102). (I) (1) If a man makes his house a ḥabs in favour of another man and of his posterity, without specifying them individually, and neither uses the term ṣadaqa nor states that it is not to be sold or made a gift, it is a ḥabs. (This quasi-perpetual charity would never have been considered a ḥabs mauqūf in ancient terminology). (2) If the same disposition is made in favour of a number of specified persons, Malik’s doctrine varies: (a) sometimes, he said, always supposing the man had said ḥabs and not ṣadaqa, and had made no provision that the house should not be sold or made a gift: it reverts to the original owner if he is alive, or else to his heirs, as full property; (b) but occasionally he said: it does not revert to him but remains a ḥabs, as if he had stipulated that it must not be sold», or « a ḥabs and ṣadaqa», then — although the beneficiaries may be individually determined — it is mauqūf and after the death of the beneficiaries reverts to the next of kin of the original owner but never to him himself, though he may be alive. The word mauqūf is a valent here; it is still used, it is true, of a temporary charity, but of a charity which can never again become full property. Different in details (and, as far as we can see, systematized and less reliable), but similar in its general purport is a parallel statement of Saḥnūn on the doctrine of Mālik (ibid. 101): if someone makes a ḥabs, in favour of a man and his posterity, or a man and his children and children’s children, or his own children, and neither mentions the term ṣadaqa nor fixes an ultimate purpose of the ḥabs, and the beneficiaries die out — then, according to Mālik, this ḥabs is mauqūf, it cannot be sold or made a gift, and reverts to the next of kin of the original owner, as ḥabs. These words of Saḥnun, incidentally, are the only allusion in t he chapter on ḥabs in the Mudauwana to an ultimate or subsidiary reversion of a ḥabs to the poor. This alone is sufficient to show how far Mālik’s concept of ḥabs still was from the later, common idea of āabs or waqf. The reversal of temporary ḥubus to the original owners, we are told, was frequent in Medina in Melik’s time (ibid. 110).

Shefi&146;I who lived in the second half of the second century, still seems to have left the term mauqūf, used in its later meaning, as redundant. In the first lines of his chapter on ḥabs, it is true, he defines the ordinary waqf, as we have seen, as a ṣadaqa muḥarrama mauqūfa (Umm III. 274), but further on he uses by preference ṣa-[*449]-daqa muḥarrama only (ibid. 225, 279 f.). In his time, therefore, outside Iraq (on which, unfortunately, there is little evidence concerning the history of the term), mauqūf had not yet become a normal attribute of the kind of charity which later became known as waqf.

The temporary ḥabs which was recognized in Medina and survived in the Māliki school, must at some time have existed in Iraq. We conclude this not so much from the fact that Shaibni declares such a temporary ḥabs, whether made for the holy war or in favour of individually determined persons, invalid (Siyar IV. 271) — this may merely be polemics against the Medinese doctrine —, or because the late commentator Sarakhsi (d. 483) on this passage attributes to Abu Yūsuf the opinion that a waqf may be temporary or permanent, but because the ancient doctrine of the Basrians was formulated in conscious opposition to it. Hilāl, himself a man of Basra (though a Ḥanafi, because in his time the school of Abū Ḥanīfa had superseded the ancient local or geographical school of Iraq), states repeatedly that «the people and judges of Basra have always insisted that every waqf must finally go to the poor» (pp. 5, 8). He further states that «some lawyers», who must be the same Basrians who seem to have survived as a group within the Hanefi school down to the time of Hilāl, demand that the poor should be explicitly mentioned as the ultimate beneficiaries of each waqf, and do not consider it sufficient that this ultimate destination be implied by the terms ṣadaqa lillāhi, etc. (p. 9). This last remark is an allusion to the doctrine of the majority of the Ḥanafis, who took the ultimate reversion of every waqf to the poor for granted, and could therefore be content with an implicit allusion to that final purpose. It is obvious that the doctrine of the Basrians does not represent a secondary increase in strictness as compared with that of the others, but embodies the direct reaction of the scholars of Basra to a doctrine similar to that held in Medina. As the influences during the early period in question proceeded almost invariably from Iraq and not from Medina[4], we are justified in postulating for Iraq the same ancient concept of a temporary waqf which alters the extinction of the beneficiaries reverted to the original owner or his heirs. It is therefore likely that the concept of mauqūf, too, connected as it was with the idea of a temporary waqf, originated and further developed in Iraq and, with a certain time-lag, was taken over in its different stages in Medina. [*450]

It is well known that Abū Ḥanīfa considered invalid every waqf that was not made under a legacy (and therefore subject to the limit of one third of the estate, and revocable by the benefactor during his lifetime), The reason for this doctrine, however, is less obvious. Sarakhsi must have felt some difficulty in explaining it, because he says in his Kitāb al-Mabsūt (Cairo 1324, vol. XII, 27); »Some of our Companions believe that the waqf is invalid (ghair jā’iz) in the opinion of Abū Ḥanifa» he himself goes on to make a distinction between fāiz and lāzim in the doctrine of Abū Ḥanīfa, this ḥabs has no effect (laisa bishai’) ..... in the same way as any waqf in his doctrine» From the work of Hilāl (p. 12 ff.) it becomes clear that what Abū Ḥan𒯺 considered invalid was a waqf, inter vivos, in favour of the poor, whether the poor were mentioned as beneficiaries explicitly as the Basrians demanded, or were included by implication, and that he did so for systematic reason that for the waqf to be valid and systematically feasible, the ownership (milk) must be transferred to someone other than the original owner and a transfer to the indeterminate body of the poor could not be envisaged. As a secondary argument, an alleged tradition from Shuraiḥ was adduced. The systematic argument would not apply to one’s own relatives, or to one’s poor neighbours and we find in fact that Abū Ḥanīfa recognized the waqf in favour of these two groups of persons (pp. 171, 198). It is not clear how he envisaged the ultimate destination of such a waqf. The argument equally does not apply if a waqf for the poor is created by legacy, where the question of milk does not arise in the same way.

Mālik’s doctrine is fundamentally similar: «If a man, whilst he is in good health, makes his garden a ḥabs or a ṣadaqa for the poor, and does not relinquish possession until he does, this is not valid because it is not a legacy; and if it is not a legacy it is valid only if he relinquishes possession before he dies ...... This is the opinion of Mālik» (Mad. XV. 108). Saḥnūn adds traditions collected by Ibn Wahb concerning Companions of the Prophet and others, to the effect that a ṣadaqa is not valid unless possession has been taken. The difference between Mālik and Abū Ḥanīfa, on the evidence of the oldest [*451] texts, is that Mālik envisages and recognizes the taking of possession on behalf of the poor by an appointed administrator, whereas for AbB; Ḥan𒯺, the presence of the poor even as ultimate beneficiaries invalidates even a waqf that can be handed over to an individually determined first beneficiary.

The doctrine of Ibn Abi Laila (d. 148), a cadi of Kufa and contemporary of Abū Ḥanīfa, is similar to that of Mālik: «If a man makes a ṣadaqa mauqūfa and makes the poor the ultimate beneficiaries, and does not hand it over to an administrator but makes himself one of the administrators, it is null and void (bātil); if he makes another person the administrator and gives him power to take possession and hand it over, it is valid and irrevocable; but if he does not hand it over to another person, it is invalid and revocable and he can sell it, and it is part of his estate» (Hilāl, p. 13). Ibn Abi Lailā, we see, hovers between the two concepts» «null and void» and «revocable» which are, strictly speaking, incompatible in this context. It may fairly be doubted whether Abū Ḥanīfa himself clearly distinguished the two aspects.

One of the most natural forms of public benefactions in Islam was the building of mosques and the undertaking of other public works for the use of the Muslims; this activity, in the same way as the making of contributions to the holy way, was an important factor in the development of the institution and doctrine of waqf. There can be no doubt that it was well under way in the first half of the second century, when Abū Ḥanīfa lived. For an obvious material consideration, Abū Ḥanīfa made a concession in favour of mosques (in later terminology, that would be an istiḥsān on his part), but he held that no public work other than a mosque could be a valid waqf (Hilāl, p. 18). Both to works of public utility and to benefactions for the poor, Abū Ḥanīfa applied strict and rigid systematic reasoning, without much regard for the practice; this is in keeping with the general character of his legal reasoning.[5]

Abū Yūsuf, Shāfi‘I tell us (Umm III. 281), diverged from the doctrine of Abū Ḥanīfa under the influence of traditions; this again is in keeping with his legal reasoning as a whole[6]. There is no reason to credit this anecdote, reported by so late an author as Sarakhasi [*452] (Mabsūṭ) that Abū Yūsuf changed his opinion on the occasion of his pilgrimage in company of the Caliph Rashid, when he saw the numerous waqf made by the Companions of the Prophet in Medina. Abū Yūsuf did not need a pilgrimage to become aware of this; his doc trine continued the old tradition from which only Abū Ḥanīfa, in the interest of rigid systematic thought, and diverged for a moments.

These few remarks, I trust, will show that in order to gain a true picture of the early development of Muhammadan law and jurisprudence, we must go back to the early sources themselves.

*Typographical errors in the original printed text have been corrected, beginning with this word. Transliteration of Arabic words has followed the original within the capacity of HTML, available fonts, operating systems and browers to do so. Some characters may not appear as italicised, and some may not print correctly.