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Waqf vs Trusts

Having lost all contact with Rome, Medieval Europe had to become acquainted with philanthropic endowments through the Islamic waqf system. This is attested to by Monica Gaudiosi, who has initiated an inquiry regarding the origins of English trusts (Gaudiosi, 1988). Gaudiosi first puts to test the conventional wisdom prevailing among the European scholarship that the origin of the English trust rests with the Roman or Germanic laws. She challenges this view by arguing that the trusts developed from a medieval English device for holding land known as the use.

Furthermore, considering the Roman fideicommissum first, she reminds us that the linkage between this institution and the English trusts had already been dismissed by the nineteenth century on the grounds that not only were the similarities between the two institutions merely superficial, but also, whereas the Roman device was purely testamentary, the early English use seldom arose by will.

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Next she challenges the notion that the origin of the English trusts can be traced back to Lex Salica, the legal code of the Salian Franks, a German tribe. In this rejection, Cattan also supports her. This is then followed by a vigorous argument about why Islamic waqfs constitute the origin of the English trusts. The basic points of this argument are as follows:

  1. Whereas, the separation of ownership from usufruct was not a new legal concept, the settlement of the usufruct of the endowed property on successive generations in perpetuity for a charitable purpose was an institution, which was created by the classical Muslim jurists of the first three centuries of Islam. There is no evidence that such a complex system of appropriating the usufruct to varying and successive beneficiaries existed prior to Islam (Cattan, 1955: 205).

  2. The emergence of the trust coincides with a period of increased contact between Europe and the Muslim world. Indeed, the Franciscan Friars who are believed to have introduced the use in England were active in the Middle East. Saint Francis, himself, spent the years 1219 and 1220 in Islamic territory.

  3. Jerusalem was a particularly significant point of contact between England and the Muslim world because of the presence there of the Orders of the Templars or the Hospitalers. Since it is well known that these orders had been influential in the development of the Inns of Court in fourteenth century England, the transmission of legal institutions from the Islamic world to England has already been demonstrated. Recent research has, moreover, shown that the transmission of legal institutions did not remain limited to the Inns of Court, and that the bulk of the partnership law was also borrowed from the Muslims (Çizakça, 1996). Consequently, all the conditions necessary for the transfer of waqfs, i.e., contact, detailed knowledge about the way the institution to be borrowed functions, etc., already existed.

  4. More importantly, similarity between Islamic waqfs and English trusts, is striking. Under both systems, property is reserved and the usufruct is appropriated for the benefits of specific individuals or for a general charitable purpose. The corpus becomes inalienable; estates for life in favour of successive beneficiaries can be created at the will of a founder without regard to the law of inheritance or the rights of the heirs and continuity is secured by successive appointments of trustees.

  5. It has been argued that a major difference between the two systems exists: whereas in the English case, the trustee is considered to be the owner of the trust, in the Islamic waqf the trustee (mutawalli) is not considered to be the owner. In reality, the trustee is no more the owner of a trust than the mutawalli could be the owner of a waqf. The main function of both is to administer the property for the benefit not of themselves but for the beneficiaries as specified by the trust or waqf.

  6. Another alleged difference pertains to the duration: the waqf must be perpetual, while a trust, except a charitable one, cannot be perpetual. It must be remembered, however, that in England the trusts could originally be made in perpetuity until the rule against perpetuities came into force.

  7. It has been argued, however, that there is one very important difference: purpose of the waqf or trust. A trust may be made for any lawful objective, a waqf, by contrast, must be charitable. Charitability is a conditio sine qua non for all waqfs including the family endowments (Cattan, 1955: 212). But this difference much emphasised by Cattan, has been watered down in reality. Ottoman documents indicate there were many waqfs endowed for a wide range of purposes some of which can hardly be considered as strictly charitable.

While all of the above provide substantial and convincing evidence for the argument that Islamic waqfs constituted the origins of the English trusts, some subtle ritualistic differences between the two systems are also acknowledged. These ritualistic differences have already been very adequately explained in Jones (1980) and Hodgson (1968).

While it is important to appreciate the ritualistic differences between the Christian and Muslim endowments, the reader should not go to the other extreme and dismiss the arguments made by Gaudiosi and Cattan. The evidence presented by these two authors that the Islamic waqf system has constituted the origins of the English trusts, is substantial and convincing. It is appropriate to include here an analysis of the 1264 Statutes of Merton College, Oxford, provided by Gaudiosi, which is further evidence.

Walter de Merton, the founder of the Merton College, Oxford, was a thirteenth century English clergyman and government servant who three times held the powerful position of the Chancellor of England. It is well known that de Merton was closely associated with the New Temple which was the English headquarters of the Knights Templars who had significant contact with the Middle East and particularly with Jerusalem. During de Merton’s final term in office, he wielded unusual power, being described as “practically the regent of the Kingdom”, while Edward I was on crusade in the Holy Land. Surely, his position of authority would have involved him in relations between the Middle East and England particularly during the Crusades.

De Merton’s college went through a number of stages before it attained its status as “a watershed in the history of colleges” (Makdisi, 1984). Concerned with the provision of a university education for his nephews, de Merton in 1262 obtained a license to vest certain properties for the support of university students. Two years later, the final form of the 1264 Statutes of Merton College was registered.

In the opening sentences of the statutes, de Merton set forth a charitable purpose for his trust and properties for the support of that objective. As is well known, this procedure is a conditio sine qua non for any classical Islamic waqf. The first condition of the trust was that any member of the founder’s family must be supported by the trust in return for appropriate service. Again, this is another provision sanctioned by Islamic law. Given that the focus of de Merton’s foundation was the establishment of a college, it would correspond to the charitable waqf, waqf khayri. The designation of certain family members as beneficiaries, moreover, would certainly conform to the traditions of the Prophet of Islam.

Gaudiosi provides a host of further evidence from sumptuary regulations to the provisions allowing the beneficiaries to appoint an overseer to examine the accounts of the trustee and observes that “the structure of Merton College fulfils a number of conditions necessary for the establishment of an Islamic waqf and does not violate any of the stipulations of the Islamic waqf law”.

Her conclusion is striking:

“Were the Merton documents written in Arabic rather than Latin, the statutes could surely be accepted as a waqf instrument”.

In view of everything said above, we reach the conclusion that the origin of the English trusts can almost certainly be traced back to the Islamic waqf system. It is also telling that in the mid-thirteenth century two other colleges of Oxford were also founded as charitable trusts (Arjomand, 1998: 115).

If, however, far away England had, indeed, been affected to such a degree by the waqfs, it is reasonable to argue that the Christian Mediterranean, much nearer to the Islamic world, would certainly have been affected as well. This is confirmed by Gilbert who has shown that Collége des Dix-Huit established in Paris by one John of London in 1180 was strongly influenced by the waqf madrasas he had seen in Jerusalem (Arjomand, 1988: 114-115). Other evidence is provided by Santiago De Los Espanoles, a foundation established by the Crown of Castile in Rome for the welfare of the Spanish pilgrims, appears to have had an identical organisational structure to an Islamic waqf. There appears to have been only one major difference between these two institutions: whereas the Spanish foundation regularly purchased with its annual profits interest yielding public bonds, lugares de monte, an Islamic waqf typically would reinvest its profits to expand its capital (Gozalo, 1998). This difference, obviously, must have been due to the stringent prohibition of interest in the Islamic world.

Having such common origins, the two institutions are naturally quite similar in basic structure. Some eight centuries later, this similarity is still reflected in everyday practice and, under special circumstances, has been effectively utilised by Muslim minorities. This is the case of the Muslims living in predominantly Christian cultures where a law of waqfs does not exist. Consider the case of South Africa where Muslims have established their waqfs under the South African Law of Trusts. The hundreds of mosques and madrasahs built all over South Africa are all managed under this law which is the closest approximation to an Islamic waqf law. The AMAL (Association of Accountants and Lawyers for Islamic law) has identified the following similarities and differences between the South African Trusts and Islamic waqfs (Proceedings of the Seminar on Management and Development of Awqaf Properties):

Generally charitable and has religious motiveNo religious motive needed
Founder may be the beneficiary (only under Hanafi law).Founder may be the beneficiary
Ultimate objective must be the benefit of mankind.Any lawful objective will do
Property vests in AllahProperty vests in the trustee
Mutawalli only a managerTrustee has larger power
Perpetual, cannot be terminated under any circumstancesNeed not be permanent. Can be terminated as stipulated in the trust deed.
Corpus is immobilisedCorpus is immobilised
Usufruct is used for the benefit of mankindUsufruct is used for the objective stated in the deed

AMAL’s comparison gives us the impression that the trust appears to have evolved into a more flexible structure than the waqf. But this argument should be considered with caution, for we are of the opinion that the Islamic waqf has also evolved in the same direction and therefore the differences stated by AMAL have been exaggerated. Supportive evidence will be presented below.


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