Cash Waqf: Shafi’i & Hanbali Positions
The stance taken by the Shafi’i school on the waqf of movables is based upon Imam Shafi’i ruling that the waqf of anything is valid from which profit can be derived whilst its original endures. What is important here is that the original capital of the waqf, corpus, should not diminish due to consumption and should be renewable from time to time by its usufruct. But the perpetuity of the waqf is not a condition sine qua non for the Shafi’is. Thus, the difficult debate witnessed among the Hanafis, as described above, does not exist among the Shafi’is.
It is said that the condition that the original capital should endure is to guard against cash waqfs because it is not possible to benefit by them consistently (Suhrawardy, 1911: 342). This negative view is also supported by the Ghayat al-Bayan. But then Imam Shafi’i’s position regarding custom must be remembered. Imam Shafi’i, like Abu Yusuf, ultimately approves of the waqf of movables subject to custom. Moreover, on the issue of custom he is almost as flexible as Muhammad al-Shaybani, for he has introduced the concept of istishab. Istishab pertains to the existence of a thing established by evidence. Even though later some doubt might arise as to its continuance in existence, it is still considered to exist (Ibrahim, 1965: 69). Thus, a practice once proved to be widespread may be presumed to be both ancient and continuing. The relevance of istishab for cash waqfs is that their ancient existence during Imam Zufar’s time, and their widespread and definitive existence in Ottoman lands between the fifteenth and twentieth centuries render them valid for the Shafi’is even today. It is not therefore surprising that they are presently considered to be valid in certain Shafi’i lands, as has been indicated at the beginning of this chapter.
Cash Waqf: The Hanbali Position
Imam Ahmad ibn Hanbal has also accepted the Shafi’i condition that the endowment of any moveable is valid providing that the corpus of the waqf is not consumed and preserved.
Source: Murat Cizakca, A History of Philanthropic Foundations: The Islamic World From the Seventh Century to the Present. Republished with permission.
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