Centralization of the Waqf System

In what was probably the very first attempt at a massive centralization of the waqf system, the Fatimid caliph Al-Mu’izz decreed in 979 that all the assets of the awqaf were to be handed over to the Public Treasury, Bayt al-mal. Within this framework, the revenue of all the waqf assets was farmed out for 1.5 million dirhams. This proved to have been disastrous and led to a substantial decline in the revenues of the waqf system, so much so that even the mosques could not be properly maintained. By the reign of caliph al-Mustansir (1036-94), the central control broke down completely (Cuno, 1992: 20). The sorry state of the Egyptian awqaf was also observed by Salahaddin Ayyubid who launched a massive reform immediately following his conquest. The positive effects of the Ayyubid reforms were reported, centuries later, by Ibn Khaldun (1958, II: 435).

It is timely to consider the implications of this episode, for centralization of the waqfs is a theme that is repeated throughout Islamic economic history. The importance of the issue will become clearer in view of the fact that centralization culminated during the nineteenth and twentieth centuries in a massive process of deliberate destruction of the system. To understand this dramatic phenomenon we must first of all analyse the forces, which prompted the centralization.

To be sure, there was not one but a number of reasons for the state’s recurring need to do this and subjugate the waqf system. A compelling argument may be linked to the problem of provisioning. Under the premodern conditions of fixed land and technology, any expansion of privately controlled land at the expense of state controlled land would jeopardise a regular and reliable supply of the basic foodstuffs for the masses. This is because; the privately owned lands would be allocated, in response to the market forces, for those crops, which command the highest price. Times of plenty and good harvests of the basic foodstuffs would mean that these particular crops would be neglected by private producers. Taking into consideration the poor state of road transport, it follows that a bulk transfer of the basic foodstuffs would be dreadfully expensive. Thus, we have an explosive situation here, while on the one hand, basic foodstuffs would be neglected by land owners under favourable conditions as predicted by the Cobweb Theorem, on the other, due to the poor state of roads and transport technology, a bulk transfer of basic foodstuffs would be out of the question. Under these conditions, the slightest change in weather conditions might disrupt food supply and a serious one could lead to famine, riots and even to a Malthusian epidemic and loss of population.

The first thing the state could do, under these conditions, would be to try to curb the production of the cash crops and force the producers to concentrate on growing grain instead. It was for this reason that, if not before, at least starting with the famine-caused uprisings in the city of Prusa (modern Bursa) during the early years of Domitian’s reign (81-96 AD), the Roman emperors had encouraged the production of essential foodstuffs and curbed cash crop production (Rostovtzeff, 1929, I: 165).

But, there was a limit to how the state could force the producers to plant those crops that it prefered. This limit was obviously the division of the available land between private and state owned lands, in short, property rights. It can be argued that under the conditions described above, ceteris paribus, the larger the state owned lands the more reliable would be the supply of basic foodstuffs. This particular Roman logic reappears a millennium and a half later behind the Ottoman policy, which declared all grain producing lands as state property and limited private ownership of land only to the orchards. Thus about 90% of all arable lands were placed by the Ottomans under state control (Inalcik and Quataert, 1994: 105).

Moreover, we have to note that waqf land functions in reality as though it is in semi private ownership. This is particularly true concerning the question as to which crops to plant. Such decisions were obviously taken by the trustee of the waqf without any interference by the state. Under these conditions, a significant expansion of waqf property at the expense of that of the state would be viewed with concern for two reasons: the continuing need to provide the masses with a reliable and abundant supply of basic foodstuffs, as mentioned above, and the potential loss in tax revenue. The concern for loss in tax revenue was naturally relevant for those regions (and times) where waqfs were exempted from tax responsibilities.

Now we can turn our attention to the difficult legal issues. Since a waqf is considered to be the property of God, how can the state confiscate it? The answer is that it cannot, unless of course, the waqf was unsound, gayr-i sahih, from the point of view of Islamic law, to start with. The “soundness” here means that the original capital of the waqf must be privately owned. But then, was land, the most basic asset of a waqf, a privately owned property?

Ownership of land constitutes one of the thorniest issues in Islamic law. First of all, the systematic law books do not specifically treat the issue of land ownership. But there are independent treatises on the subject written by jurists such as Abu Yusuf (1982), seeking to legalise existing or surfacing conventions in the field of land holding and land taxation.

A careful look into the nature of state ownership of conquered lands in Islamic law reveals that, as in Roman law, there were basically three fundamental elements: rakaba (dominium eminens) or ownership; tasarruf (usus) or possession; and istiglal (fructus) or usufruct (Inalcik and Quataert, 1994: 106). Each one of these elements was treated separately under the Islamic law; the state retained the rakaba, ownership, and what it handed over to the ordinary citizens were merely the rights of possession and usufruct. Hence the confusion; archives are full of documents indicating the free “sale” and “purchase” of land by ordinary citizens. Consequently, those readers unaware of these three independent elements, are often led to think that a peasant was free to sell his land, whereas what the peasant was permitted to do in these conquered lands was merely to sell his tenancy rights (Aghnides, 1916: 375-376). Thus, when the second caliph Omar, allowed the original landowners in the territory situated between the Euphrates and the Tigris to keep their land subject to the payment of a special tax, kharaj, it should be understood that they were permitted to retain not the ownership but the usufruct. Thus, in practice, the sale of a piece of peasant land was accomplished by exchanging its usufruct for an amount of money (Cuno, 1982: 81).

This brings us directly to the question of how the Caliph Al-Mu’izz in the year 369 A.H., or more than half a millennium later the Ottoman sultans, could revoke the waqfs. These rulers could do so by basing their actions on the principle of inalienability of the state’s ownership. After all, the state had retained the ownership of land and handed over to the landlord the possession, and to the farmer, the usufruct, as separate elements. Since, with the ownership firmly in the state’s hands, the landlord who possessed the land did not actually own it, he had no right to endow it in the first place. Such endowments were permitted only exceptionally and subject to the Sultan’s approval. In such cases it was not the ownership of the land, which remained firmly in state’s hands, but rather, the tax revenue generated by it that was endowed. That is to say, instead of collecting the taxes payable by the peasantry, himself, the Sultan permitted this revenue to be endowed. Since this is not the usual method of establishing a waqf, such waqfs were known as unsound, gayr-i sahih, or irsadî (Akgündüz, 1988: 424). These complex legal issues are clarified by Baber Johansen as follows:

“Beginning in the Fatimid period … Muslim rulers tried time and again to confiscate the waqfs and to treat them as lands belonging to the state. This tendency reached its climax under the Ottoman ruler Mehmed II who tried in the 1470s to ‘sultanize’ all arable lands including the waqfs. He recognised only orchards, vineyards and plantations as private property…  The Ottoman system of land tenure was clearly based on the assumption that arable lands belonged in principle to the state. Ownership rights of private persons or pious foundations were recognised only if sufficient proof for them existed. Consequently, verifying the validity of property deeds became one of the strongest weapons which the public treasury had for controlling arable lands. In the course of verifying the deeds, the authorities could refuse to acknowledge the claims … and instead incorporate the lands into public domain.” (Cuno, 1982: 22).

Concerning the question of the process of centralization or whether this process was linear or cyclical, the evidence presented above indicates that the latter was the case. We have already noted above that Caliph Al-Mu’izz’s efforts were thwarted by Salahaddin Ayyubid. It is also well known that more than half a millennium later the Ottoman Sultan Mehmet II’s similar efforts in centralization were also thwarted by Bayezid II. In short, until the nineteenth century, centralization policies were often followed by decentralization. What makes the nineteenth and twentieth century centralizations unique is the fact that they proved to be lasting. Indeed, since the re-Islamising states did not reverse these policies during the twentieth century, the waqfs all over the Islamic world remain firmly centralised and controlled by the state.

It is appropriate at this point to explain why the centralization process of the nineteenth and twentieth centuries proved to be lasting. To start with, the nature of state had changed in the Islamic world. If we focus on the Ottoman Empire, the latest research has revealed that the Ottoman state had gone through a process of transformation: whereas the pre-eighteenth century Ottoman state was “accommodative” of the conflicting rival groups and institutions and tried to play a “redistributive” function, massive inter-state competition had transformed the nineteenth century Ottoman state into a totally different dimension. The state had now acquired its own raison d’être and ended up being far less tolerant and accommodative of the rival groups and institutions. This modern Ottoman state was now above all these groups and institutions and did not hesitate to eliminate them if it suited its purpose. The nineteenth century onslaught on the waqfs differs from the earlier ones in that whereas waqfs were originally among the rival groups, which were occasionally accommodated by the state, hence the cycles of centralization-decentralization observed above, in the nineteenth century, together with other groups and institutions, they were totally subjugated to the will of the central state (Islamo lu, 1998).25 Consequently, the nineteenth century centralization was not followed by another cycle of decentralization.

Furthermore, unlike the previous centuries, when centralization was basically initiated due to the demands of the domestic economy or the state, in this period another powerful factor was added: pressure from the Western powers. This was, after all, the era of colonisation and the great powers were determined to impose their own systems on the vast regions that they colonised. It should also be taken into account that the West had already attacked its own system of religious charity previously.

The West considered the waqfs as a “dead hand” or “mortmain”. The origins of this hostility has been traced all the way back to the late middle ages when the free towns tried to control the mortmain and limit the size of the church property. The town councils created commissions to supervise the charitable foundations.26 Establishment of new charitable institutions was subject to the approval of these councils. These controls were enhanced during the reformation when the state officially acquired the powers of supervision. But Catholic Europe was also going through the same process: a French ordinance of 1543 declared that the royal judges should supervise foundations and organise their administration if necessary. Another edict issued in 1749 prohibited the founding of new chapters, colleges, even hospitals without a lettre patent from the king.

The French Revolution constitutes a turning point for the foundations. Eighteenth century French philosophy legitimised the predominant role assigned to the state. Reference should be made here to Rousseau’s concept of the “social contract” whereby, as Montesquieu reformulated, the state has to grant every citizen a livelihood, food and shelter. This way of thinking, at one stroke, rendered charitable institutions superfluous. Consequently, in France, in general, any corps intermédiaire, i.e., any independent organisation, which stood between the individual citizen and the state, was opposed. These organisations, it was believed, created a fracture in the unity of the nation. No wonder then that in the 1789 Declaration of the Rights of Man, the civil right of association is missing. Consequently, a French statute of 1791 dissolved all existing foundations and confiscated their property. Napoleon took a significant step further and made the Penal Code a more repressive legislation:

“Any association of over twenty persons, whatever their purpose, cannot be created without the government’s agreement and must respect the conditions imposed by public authorities.”

This legislation lasted throughout the nineteenth century, until the 1901 Act. Leaders of unauthorised associations continued to be punishable and were sued by the repressive system of the French empire. The developments described above were primarily responsible for the relatively insignificant role foundations played in France in later periods (Archambault, 1997(a): 27-29; and 1997 (b):104).

In Germany, Martin Luther was a great advocate of centralised charity. In Prussia, much affected by France, the Allgemeine Landrecht of 1794 granted supervisory rights to the state and the question of whether a permanent legal entity such as a charitable foundation could be organised by the will of a private person was fiercely debated.

In England, monasteries were dissolved and a Rule Against Perpetuities was promulgated in short, ever since the Edicts of Henry VIII and the Elizabethan Poor Laws, a secularisation of charitable institutions was advocated and attempted.

The only exception to these developments was the United States where the liberals insisted that the promotion of public welfare should not be left only to the state. In America rich individuals were regarded as being under obligation to devote a part of their wealth for public good and private foundations which served such purposes were regarded as charitable foundations and were favoured by law (Coing, 1981: 271-82; Friedman, 1973). Germany, where some foundations did flourish and the concept of subsidiarity was developed, can be placed between the two extremes: France and the United States.

The overall impact of these developments on the poor in Europe was disastrous. In France, in the year 1616 “the Great Imprisonment” took place whereby most of the poor in Paris were simply imprisoned. Women who were caught begging were publicly flogged and their heads shaved, while men were taken off to prison.

In Amsterdam’s poor houses those who refused to work from dawn to dusk were thrown into special chambers, which would slowly be filled with water from the canals. The indolent had only one choice if he did not want to drown: to work the pump continuously. This way, it was thought that indolents would learn the virtue of work (Geremek, 1994). Thus, it is hardly surprising that a culture, which treated its own poor so harshly, would not share Islam’s affectionate attitude towards poverty and therefore regard its charitable institutions as “backward”. But different attitudes towards poverty were by no means the most important factor. More importantly, colonists wanted to acquire land in the countries that they controlled. Since waqf land could not be sold or acquired, this institution emerged as the greatest impediment to colonial ambitions.

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