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Beneficiaries & the Family Waqf

It is well known that the waqf system provided regular salaries to many beneficiaries. Recently, these beneficiaries who were paid from the annual revenues of the awqaf have been categorised into various groups: administration, education, food for the public, family of the founders, maintenance, religion, municipal services, tax relief, etc. (Çizakça, 1995: 339). Since a detailed analysis of these groups has already been made, we will not repeat it here. It should suffice to note that a long-term analysis of the relative amount each group obtained from the waqf system in any given city would reveal important insight into the prevailing value system of that city and its evolution (Çizakça, 1994).

At this point it is important to remember that waqfs allocated their annual revenues to a myriad of beneficiaries, a founder could also appoint himself or his inheritors as the primary beneficiary. This type is known as the ehli vakıf, or the family waqf. The revenue of such waqfs are reserved for the benefit of the founder or the offspring. Initially public benefit is of secondary importance; it assumes primary importance only after the nesil expires, i.e., when there are no more descendants of the founder and so the entire revenue of the waqf accrues to public purposes. Through such waqfs it was also possible to avoid Islamic inheritance rules and to bequeath to a specific member of the family. In short, though not sanctioned by Islamic law, primogeniture could be applied in the Islamic world by resorting to family waqfs. This possibility had, naturally, far reaching consequences throughout the world of Islam, to which reference will be made later.


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The origins of this specific type of waqf are obscure and controversial. French orientalists, for instance, have argued that the family waqfs originated in the reaction of the Arabs to the Islamic law of inheritance, which aimed at improving the position of women in the society. But when women were made eligible to inherit, this offended the local traditions and the Arabs tried to find an indirect way to circumvent the new law and still apply a sort of primogeniture or at least to bequeath only to the male offspring. These orientalists thus argued that whereas the origins of waqf were undoubtedly Islamic, in the later centuries they evolved primarily to circumvent the law of inheritance.

This line of reasoning ignores the Prophetic traditions fully sanctioning pious offerings for provisioning the self, the children and the needy relatives (Qureshi, 1990: 82). Thus, the whole argument that the family waqfs were a relatively late development is false. It is well known, moreover, that when Omar, the Second Caliph, endowed his land in Khaibar, he allocated its usufruct, among other things, to his offspring following the Prophet’s advice, and that Imam Shafi’i, himself, had also endowed his house in Fustat to his offspring. Moreover, it is also well known that the great Hanafite jurists were involved in a bitter controversy over the legality of family waqfs, which casts further doubt on the orientalist argument that this institution was a later Arab invention. The controversy was between Imam Abu Yusuf on the one hand and Imam Hanafi and Muhammad (Shaybani) on the other, in short, a conflict among the giants of Islamic (Hanafite) jurisprudence.

It is therefore all the more remarkable that Abu Yusuf’s complicated and controversial position came to be accepted not only by the Hanafite regions of Islam but even by some other regions where Hanafite law was not dominant (such as Algiers). The permission granted by Abu Yusuf to the family waqfs was well accepted by the Islamic world in general and assumed a definitive character particularly in the Hanafite regions. But the controversy did not wane and resurfaced time and again. The seventeenth century Ottoman controversy triggered by the great statesman Koçi Bey was based on the following observation: the conversion of state lands into personal property and then into waqf. Thus the lands, which were originally assigned for the military fief (tımar), were being increasingly re-allocated for religious/non-military usage through the waqf system. This problem was not apparently so serious in Mughal India, for the Mughals, according to Kozlowski, were cash rich: all the Mughal land tax came to the treasury as cash. So the emperors made cash grants to those they wished to patronise rather than alienating state lands to them (Crecelius, 1995: 259). But it assumed serious proportions in the Ottoman Empire and led to bitter complaints. Finally, 200 years later in French North Africa and British India, the controversy resurfaced again, this time, by the colonialists and orientalists who challenged the legitimacy of family waqfs for their own ends.

Most orientalists have argued that family waqfs were also resorted to in order to protect the family property from arbitrary confiscations of the rulers. This was apparently another reason why this institution had become so popular. Köprülü accepts this explanation as plausible but argues that this motive cannot explain all the waqfs. Consider, for instance, the palace eunuchs who had no offspring but who established substantial foundations (Köprülü, 1942: 5-6). The strongest refutation to the confiscation argument has been provided, however, by Gerber who demonstrated that the women of Edirne, who had nothing to fear from confiscations, established 65% of the waqfs they endowed as family waqfs, while 80% of the waqfs endowed by those who had the most to fear, the elite, were charitable. Thus Gerber concludes:

“In fifteenth and sixteenth centuries Edirne, the waqf was used only in a minor capacity or even rarely in order to safeguard the property of the founders for transmission purposes” (1983: 35).

In any case, family waqfs, in general, did not constitute the majority of the waqfs in the Ottoman Empire: Barkan has shown that the ratio of family/charitable waqf ratio was not particularly high during the sixteenth century while a recent analysis has revealed that during the eighteenth century merely 14.20% of the total awqaf revenue and during the nineteenth, 16.87%, was reserved for the family members of the founders. In Aleppo the ratio was somewhat larger: of the total of 687 waqfs established in this city between 1718 and 1800, 50.7% were charitable, 39.3% were family and 10% were mixed (Öztürk, 1995: 249; Masters, 1988: 173).

Another motive in establishing family waqfs, it has been argued, was to protect the property of an indebted person. In the Ottoman lands this practice was prohibited by a fatwa of Ebussuud during the sixteenth century while in India it led to a huge controversy beginning in 1894 with the Abdul Fata (and others) v. Russomoy (and others) case in the Privy Council and culminating in Muhammad Ali Jinnah’s victory and the passing of the Mussalman Waqf Validating Act of 1913.

Meanwhile the popularity in Egypt of the family waqfs has been demonstrated by the fact that these awqaf yielded more revenue in 1928-29 than all the other types. This situation was one of the reasons, which eventually led to the total prohibition of these waqfs in Egypt later.

 

Source: Murat Cizakca, A History of Philanthropic Foundations: The Islamic World From the Seventh Century to the Present. Republished with permission.