Cash Waqf: Hanafi Position
Probably the most detailed account of this controversy has been studied by Suhrawardy, an Indian jurist-scholar who travelled to the Ottoman lands at the height of another controversy, that of the family waqfs, prevailing in India. His major Article on the legality of cash waqfs (Suhrawardy, 1911) was published just two years before the family waqf controversy ended in the victory of Muslims against the British establishment. Thus the first two decades of the present century was one of fierce legal debate about the waqfs (family as well as cash) in India and we should view Suhrawardy’s work from this perspective.
The reason Suhrawardy travelled all the way to Istanbul is explained by himself in the “acknowledgements” as follows:
“I take this opportunity of expressing my sincere thanks to Muhammad Ali evki Bey, and to Zaimzade Hasan Fehmi Bey, grandson and First Secretary to Field Marshall Ghazi Ahmet Muhtar Pasha, late Ottoman High Commissioner in Egypt, for obtaining access for me to several important libraries in the Ottoman Empire and also for procuring for me the fatwas of the Grand Mufti of Egypt and of the Mufti of Alexandria …. In a subsequent issue of this journal I hope to give a translation of the well-known treatise on the subject of this paper by the celebrated Sheikh al-Islam, Mufti, Ebussuud, a manuscript copy of which I have just discovered in Constantinople.”
Thus, the purpose of his visit to the Ottoman lands was to study the cash waqf controversy in the Ottoman Empire itself and to find out about the legality of this institution. The manuscript of Ebussuud that he refers to was obviously the one written during the sixteenth century at the height of the Ottoman cash waqf controversy (Mandaville, 1979). It is noteworthy that he did not limit himself to the famous treatise but went so far as to obtain fatwas from Egypt.
Actually, at the beginning of the twentieth century looking at the Ottoman Caliphate and Egypt for solutions to the prevailing legal problems in India appears to have become the established norm for Indian Muslims. For the family waqf controversy also the same method was used. The implications of this situation should not escape us here. The Ottoman Caliphate was the symbol of legitimacy in the Islamic world and any legal issue that was solved in the Caliphate would be considered as solved in India as well. This was particularly so as both regions followed the Hanafi law. Even in far away Malaysia, where the Shafi’i law prevails, the Ottoman codification of Islamic Law, or the Mecelle, is presently used by the Islamic reformists who needed categories of punishment more tolerant than the strict hudud (Horowitz, 1994: 243).
Since the sixteenth century Ottoman legal debate concerning the validity of cash waqfs has been well documented and summarised by Mandaville, we will concentrate here on the controversy as it was reviewed by Suhrawardy at the beginning of this century. Suhrawardy starts his work by a short statement, which reveals his overall purpose:
“A careful perusal of this paper … will, I venture to hope, leave no doubt in the minds of the readers about the validity of the waqf of movables, including money, shares in companies, securities, stocks etc.”
This is followed by a useful account of the methodology of Islamic jurisprudence with particular emphasis on the hierarchy of jurists and the reliability of sources. He then acknowledges that divergence of opinion exists among the jurists and suggests that, according to Prophetic tradition, this is a blessing.
Concerning the legality of cash waqfs, which he considers a special form of the waqf of movables,8 the first source Suhrawardy consults is the Is’af of Burhan al-Din Ibrahim written in 1499. Burhan al-din refers to Imam Muhammad (al-Shaybani) and argues that he had permitted the endowment of movables subject to custom. Burhan el-din dismisses the problem of the perpetuity of the endowment’s corpus based upon both custom and Prophetic tradition, the latter referring to the well known cases of waqfs founded during the early days of Islam with movables such as arms and horses.
Next, Suhrawardy has consulted Fatawa Kadi Khan where the great Hanafi jurist al-Sarakhsi is quoted. Al-Sarakhsi repeats Muhammad’s approval of the endowment of movables.
Durr al Muntaqa where the true flexibility of Imam Muhammad’s permission is referred to for the first time has provided a far more detailed analysis. This is the fact that the permission to endow movables had been granted subject to custom as well as in the absence of custom, i.e., that the permission was absolute. It was Abu Yusuf, who had permitted the endowment of movables strictly subject to custom.
The next source consulted by Suhrawardy, Majma al-Anhur, repeats the approval of Imam Muhammad and Abu Yusuf, but then takes a step further arguing that since a custom regarding the endowment of cash had already surfaced at the time of Zufer, who was a companion of the great Imam Abu Hanife, then these waqfs came within the purview of the dictum of both Imam Muhammad as well as Abu Yusuf and therefore they must be allowed without any doubt whatsoever. Thus, “fatwa of some to the effect that the view declaring the validity of the waqf of dirhams is weak, because of its having been reported from Zufer, is incorrect”.
Next we come to the controversy concerning the nature of custom, ta’amul. The debate here is between the purists who argue that only custom prevailing at the time of the Prophet and his companions should be considered, and the “liberals” arguing that custom of all times must be considered as a source of jurisprudence. Majma al-Anhur rejects the purist argument. Actually the rejection can be traced right back to the Prophet himself, who had said as reported by Ahmad:
“Whatever is good in the sight of the Muslims is good in the sight of God!” indicating that he trusted the judgement of Muslims as embodied in the established custom, at all times. It is for this reason that custom is stronger than analogy, qiyas, as well as juristic preference, istihsan and again, it is for this reason that Imam Abu Yusuf must have ruled the waqf of movables valid subject to the existence of custom.
The legal implications of a situation whereby custom appeared after Imam Muhammad’s time and in a different country have been referred to in the Tahtawi. Reporting that al-Nahr limits the validity of a waqf to the countries where it has been recognised, Tahtawi rejects this argument based upon Ebussuud. He then provides the examples of various movable waqfs which did not exist at the time of Imam Muhammad and for which custom emerged afterwards. The most important example of such waqfs is the waqf of ships.
“In our time practice has arisen with regard to the ships of the Red Sea. For some of them are made waqf of for transporting grains destined for Mecca and Medina ”. Endowing ships appears to have originated with the Mamluks and it has been argued that the Ottomans did not invent but took over this tradition. See, Doris Behrens-Abouseif, “Qaytbay’s Foundation in Medina…..”, Mamluk Studies Review, Volume II, 1998, p. 67. Hans Georg Majer rejects the idea of waqf ships altogether. He argues that the term “waqf ships” referred to those ships bought by the waqfs. Ships were not endowed as such and did not constitute the corpus of a waqf (Majer’s comment on my paper ‘Institutional Framework of Democratic Islam’ delivered at Munich University, July 1998).
Thus the wisdom of Imam Muhammad in considering custom from a flexible perspective is made crystal clear in Tahtawi. Muhammad held that the waqf of movables was valid not only subject to the existence of custom at his time but also subject to custom which may arise in another time and country. It is thanks to this flexibility that Islam gained two very important types of waqf: the waqf of grain ships which made pilgrimage possible and the cash waqfs. Suhrawardy finds the same point also emphasised in the Durr where it is stated that law is based on the recognised practice of the age in question. The Durr considers custom clearly as the basis of law in every clime and age.
The Kifayah looks at the problem from a different perspective and after weighing the various methods of Islamic jurisprudence against each other reaches the conclusion that the negation of the waqf of movables based on analogy, qiyas, should be rejected. The analogy here pertains to the question of perpetuity, a primary condition of the validity of a waqf and leads to the argument that since movables cannot endure, they violate the perpetuity principle. Thus here we have two principles in conflict; analogy based on the problem of perpetuity rejecting the cash waqfs and Prophetic tradition permitting the endowment of movables in general, as well as custom permitting the specific form of movables. The Kifayah concludes that the force of analogy as based on perpetuity is abandoned by reason of custom as well as tradition. The latter pertains to a hadith to be found in al-Bukhari:
“For verily did Khalid ibn al-Walid, make waqf of armour he had in the way of Allah” (Sahih Buhari: 2547).
The former, i.e., the “antagonistic influence of custom” which has overruled analogy, pertains to the ruling of Imam Muhammad explained above. In short, the argument that the cash waqfs should be rejected because their corpus in the form of cash cannot be perpetual is rejected on the grounds of custom and tradition, both are more powerful than the analogy pertaining to perpetuity.
Next we come to the fierce debate between al-Ramli (d.1004 A.H.) and Radd al-Mukhtar. Al-Ramli tried to use the custom argument against the cash waqfs by arguing that there were no cash waqfs at the time of Imam Muhammad and therefore no custom. But it should be noted here that al-Ramli was not aware of al-Sarakhsi’s report that Imam Muhammad had approved of the waqfs of movables even in the absence of custom.
Radd al-Mukhtar refutes and silences al-Ramli by arguing that cash has perpetuity, because one dirham is as good as the other (Mandaville, 1979: 299). Moreover, we have here the order of the Sultan himself in favour of the cash waqfs. This order is of crucial importance for Suhrawardy who argues that the Ottoman Sultan’s order is sufficient to legalise such a waqf not only in his country but throughout the Muslim world. This is because the order represents a given preference to one out of two views and this preference removes the conflict and gives generality and concurrence to the view so preferred. Secondly, the custom in Turkey cannot be called a practice in a particular country, but it is a general and universal practice “ta’amul alam” and it is good enough to embrace the whole of the Muslim world. Thirdly, if Turkey is a special country “balad khas”, within the meaning of the rule of jurisprudence as laid down in the Sharh Manafi’ al-Daqqaq, still there being no “nass” or tradition against the view of validity of any Islamic state, the view of the law in Turkey is binding over all the Muslim world.
After providing us with these painstaking details of the debate on the validity of cash waqfs, Suhrawardy asked the help of Ottoman Field-Marshall Ghazi Muhtar Pasha, former governor of Egypt, for a fatwa from the Mufti of Egypt. Hasan Fehmi Bey, Secretary to Ghazi Muhtar Pasha asked the following to the Mufti (Suhrawardy, 1911: 371):
“What is your opinion concerning the following case? An Indian of the Hanafi sect makes a waqf of government securities, stocks and bonds known amongst Europeans as rente or of shares in trading companies, the practice of which has been recognised in our time in certain countries. Will such a waqf be valid and permissible in India if it is recognised in Turkey for instance … ?”
Answer (Written on 9 Muharrem 1326 A.H. (1908), fatwa no.167):
“The subject of waqf must be property having legal value (mal al mutaqawwim) provided it is land or movable property with regard to which there is custom. If the said securities be property having legal value and there has been a practice of endowing them in the country of the dedicator, their waqf would be valid according to Imam Muhammad, like the waqf of dirhams and dinars the waqf of which is now recognised ...This opinion has been adopted by the majority of jurists of various countries as stated in the Hidayah and this is the correct opinion as stated in the Is’af and it is the dictum of most doctors as stated in the Zahiriyyah. It is also laid down in Radd al-Mukhtar and it is expressly laid down in the commentary on the Durr that the fatwa is in accordance with this. As to the waqf of movables accessories to land, it is valid without any difference of opinion between Abu Yusuf and Muhammad …
Now, as to shares in trading companies, their waqf is of the nature of waqf of musha’. Now that you know that the waqf of movables is valid according to Muhammad you should have also regard for the conditions laid down by him, e.g., that they should be divided (not musha), when they are capable of division, and that they should be delivered to a mutawalli even though they do not satisfy the condition of perpetuity, ‘ta’bid’. Finally you should know that the language of the jurists here show some leaning towards taking special recognised practice, ‘urf khass, into consideration. This is one of the views of the school and it is a proper view, since the language of the dedicators is based on their special practice, ‘urf. Thus, the Mufti of Egypt has hesitated only on the question of whether the practice in Turkey can be taken as binding for all Muslims. But his final words; “you should know that … jurists here show some leaning towards taking special recognised practice, ‘urf khass, into consideration” makes clear that custom in a Muslim country would be respected by the others. To be on absolutely safe ground, Suhrawardy had Hasan Fehmi Bey ask the Mufti of Alexandria the same question as well.
Answer (by Muhammad Bakhit al-Muti’i, the Hanafi jurist of the University Mosque of al-Azhar, Mufti of Alexandria):
“These shares etc. are all included under the term movables and the pertinent rule is as follows: “….the waqf of movables as accessories to land is valid without any difference of opinion between Abu Yusuf and Muhammad. If the waqf of such movables be made independently (not as accessories to land) then Abu Yusuf rejects it, but Muhammad accepts subject to ta’amul. This opinion has been adopted by the majority of jurists of various countries as stated in the Hidayah, the Is’af, and in the Zahiriyya. Moreover, it has been stated in the Mujtaba on the authority of the Siyar that according to Muhammad it is valid to make a waqf of movables unrestrictedly and according to Abu Yusuf only when there is ta’amul. Therefore, when a practice has arisen as to making waqf of these securities and shares, their waqf is valid, especially as they are of the nature of coins, dirhams and dinars. Now we find in the Manh: as a practice has arisen in our days in Turkey and other countries of making waqf of dirhams and dinars, they come under the dictum of Muhammad in accordance with which is the fatwa as regards movables in which there is ta’amul….
Since the ta’amul of the Muslims as regards to these things is based on the rule of recognised practice urf, whereby analogy is disregarded on account of the saying of the Prophet,
“Whatever is good in the sight of Muslims is good in the sight of Allah” as reported by Ahmad.
That is why it is laid down in the Mabsut, “What is established by usage, ‘urf, is like what is established by express text”. And God knows best.(Signed) Muhammad Bakhit al-Muti’i.
Two points attract our attention in this fatwa; first, Bakhit al-Muti’i seems to have been aware of Imam Muhammad’s permission regarding the waqf of movables whether there is established custom or not, hence his statement, “according to Muhammad it is valid to make a waqf of movables unrestrictedly” and second, based upon Mabsut by al-Sarakhsi, one of the most respected sources in Islamic jurisprudence, he gives custom an eminence approaching to that of the Qur’an and the sunnah.
We are now in a position to summarise the Hanafi position on the validity of the waqfs of movables or their special form, the cash waqfs. The majority of the sources presented above are in agreement that as far as the validity of these waqfs is concerned there is no need to refer to Imam Zufer, who is considered to be a relatively weak source. The whole issue can be traced back to the “two companions” of Abu Hanife; Imam Abu Yusuf and Imam Muhammad al-Shaybani, both of whom are considered to be the greatest authorities of the Hanafi Law. It is important that both have approved the waqf of movables. The only point at which they differ is that whereas Abu Yusuf approves of them subject to custom, Muhammad’s approval is subject to custom prevailing at his own time and country and subject to custom that may emerge after his time and in any other land. This flexible interpretation of Imam Muhammad is conveyed to us by another eminent jurist, Shams al-A’immah al-Sarakhsi. Therefore, it is most reliable. It is for this reason that many sources quoted above consider Imam Muhammad’s approval as unrestricted. At this point the following rule applies: when of two conflicting opinions, one is more favourable to the waqf, the mufti should deliver fatwa in accordance with that opinion. Consequently, Imam Muhammad’s ruling applies and the Hanafi School declares the waqfs of movables, including cash waqfs and the waqf of ships, valid. Finally, it should be added that the endowed cash should be, preferably, invested through mudaraba, as Imam Zufer had suggested.
Source: Murat Cizakca, A History of Philanthropic Foundations: The Islamic World From the Seventh Century to the Present. Republished with permission.