The Islamic family endowment (waqf).

• Author: Powers, David S.
• Position: Inheritance system - Symposium: The International Trust, part 2

1. AN INTRODUCTION TO THE ISLAMIC INHERITANCE SYSTEM

   A Muslim who wishes to make arrangements for the transmission of his property to the next generation must consider a wide range of variables, including, on the one hand, the nature and extent of his economic assets, and, on the other, the people to whom he wants to transmit these assets. In fourteenth-century Damascus or Fez, the economic assets of an urban Muslim notable typically might have included one or more of the following: a house, compound, workshop, bakery, garden, orchard, or olive grove. The people to whom he might want to transmit these assets would have included his children, spouse, and agnatic relatives. A decision about who would receive what property and in what amounts was likely to be affected, in turn, by demographic considerations and by specific characteristics of the individual members of the family, such as birth order, gender, marital status, residence patterns, age, financial situation, and personality. All of these factors would intersect in a complex but intangible manner, with the nature of the affective relations between and among a proprietor, spouse, children, and other relatives.

   1. Compulsory Inheritance Rules

      Any decision that a person makes regarding the inheritance of his estate will be the result of a complex calculus that involves the weighing of shifting social, economic, demographic, and personal considerations. In Muslim societies, a person's ability to make such calculations is frustrated, in theory, by the compulsory Islamic inheritance rules that impose substantial constraints upon the freedom of a person contemplating death to determine the devolution of his or her property.(1) Under such rules, bequests may not exceed one-third of an estate, and may not be made in favor of any person who qualifies as a legal heir, unless the other heirs give their consent.(2) Compulsory rules for the division of property have their basis in Qur'anic verses that traditionally have been understood as recognizing two classes of heirs.(3) One group is classified as "sharers," that is, those persons for whom the Qur'an specifies a fractional share of the estate--daughters (in the absence of sons), a father, mother, or spouse--and, in the absence of children, one or more siblings.(4) The other group comprises agnates, arranged in a series of hierarchical classes.(5) The raison d'etre of the Islamic inheritance rules is to insure the systematic and consistent application of a formula for the division of property that is regarded as having been divinely revealed, and to prevent the familial strife that may result from mere human calculation.(6) "Your fathers and your sons," Qur'an 3:14 teaches, "you know not which of them is closer to you in usefulness."(7)

      The division of an estate follows a two-step process in which the qualifying "sharers" take their Qur'anic entitlements, then the closest surviving agnate inherits whatever remains.(8) For example, if a man dies leaving his wife, one son, two daughters, and two brothers, the wife inherits one-eighth of the estate as a "sharer" and the children inherit the remaining seven-eighths of the estate according to the Qur'anic principle, "the share of a male is equal to that of two females."(9) Thus, the son inherits seven-sixteenths (7/16) of the estate while each daughter inherits seven-thirty-seconds (7/32) of the estate. As the closest surviving agnates, the sons and daughters totally exclude the decedent's brothers from the inheritance. Theoretically, the person contemplating death is powerless to affect the relative entitlement of his heirs.(10) In the example, if the decedent's son took care of him in his old age and his daughters were both married to wealthy men, the decedent could not stipulate that the bulk of his estate would pass to his son upon his death. Similarly, he could neither disinherit a child from whom he had become alienated, nor increase the share of a child of whom he was especially fond.

   2. Circumventing the Rules

      During the first two centuries of Islamic history, Muslims throughout the Near East found themselves subject to these compulsory rules of partible inheritance.(11) To the extent that they were applied, these rules frustrated the desires of proprietors to make the kind of calculations referred to above and resulted in the progressive fragmentation of wealth and capital.(12) It is perhaps not surprising that Muslims found numerous ways to circumvent the compulsory inheritance rules and that they received important assistance in this regard from jurists.(13) By distinguishing between post mortem and inter vivos transactions, jurists taught Muslims that the inheritance rules apply only to property owned by the decedent at the moment he enters his deathbed illness and that a proprietor is free to dispose of his property in any way he wishes prior to that moment.(14) There were no restrictions on the amount of property that a person might alienate during his lifetime, whether in favor of his eventual heirs or a "stranger."(15) Therefore, a proprietor might shift assets to his desired heir or heirs by means of an inter vivos transaction, such as a gift, charitable donation, sale, or acknowledgment of a debt, provided that these transactions conformed to the requisite legal formalities.(16)

      In other words, a Muslim proprietor who wanted to avoid the application of the compulsory Islamic inheritance rules had to engage in some form of pre-mortem "estate planning" by making real or nominal transfers of property to his desired heirs. Such practices were common already in eighth-century Medina, in twelfth-century al-Andalus, and in fourteenth- and fifteenth-century Maghrib. Indeed, they are likely to have been common in Muslim societies at most times and places.(17)

      The most important variation of a gift inter vivos was the family endowment (waqf ahli). Like a simple gift, a family endowment made it possible for a proprietor legally to remove part or all of his estate from the effects of the Islamic inheritance laws and to reduce the quantum of property available as an inheritance for ascendants, collaterals, and spouses. Further, the creation of a family endowment enabled the proprietor to establish a lineal descent group with exclusive usufructory rights to the endowment revenues and to define the descent strategy according to which these rights pass from one generation to the next, theoretically, in perpetuity.(18) Thus, a family endowment provided a means of ensuring that property would remain intact throughout the generations.

      The Qur'an contains no reference to the institution of waqf, which, most historians agree, emerged during the first and second Islamic centuries (the seventh- and eighth-centuries C.E.).(19) During this period, Muslim jurists identified two key legal principles: (1) the distinction between real property (asl) and the revenue or usufruct (manfa'a) generated by that property; and (2) the notion that real property could be sequestered in perpetuity.(20) These two ideas are clearly reflected in an anecdote attributed to the Prophet Muhammad:

      Verily, `Umar b. al-Khattab owned some land called Thamgh, which was a valuable date grove. Umar said [to the Prophet], "O Messenger of God, I have acquired property that is dear to me. May I give it away as alms?" The Messenger of God replied, "Dedicate its principal as alms, but it may not be sold, nor given away as a gift, nor inherited."(21) In another version, the Prophet recommends to Umar that he "sequester its principal and dedicate its fruits to charitable purposes."(22)

      It is not certain that Muhammad in fact uttered these words to `Umar. Indeed, pious, well-meaning Muslims may have attributed them to the Prophet during the century following his death in 632 C.E.(23) Nevertheless, by the end of the first Islamic century and beginning of the second, incontrovertible evidence exists of a sophisticated pious endowment.(24) For instance, a deed in which a well-known jurist designated his house in Fustat as a familial endowment is attested for the end of the eighth century C.E. Other examples follow in profusion. During the first half of the ninth-century C.E., two treatises devoted to the institution of waqf were written by Hilal al-Ra'y and al-Khassaf, respectively.(25) Clearly, the emergence of the Islamic pious endowment pre-dates the emergence of the trust in Western Europe by several hundred years.(26)

   3. Sources of Evidence

      The Islamic endowment can be studied from a wide range of documentary and literary sources. The primary documentary source is the endowment deed (among the Malikis, rasm al tahbis; elsewhere, waqfiyya). The literary sources include the standard collections of prophetic hadith, early juridical treatises, doctrinal lawbooks, and collections of judicial opinions (fatawa, plural of fatwa). This article focuses exclusively on the Maliki school of law, which was prevalent in the Islamic West. The conclusions presented here are based upon an analysis of 101 judicial opinions, or fatwas, contained in volume seven of the Kitab al Mi`yar of Ahmad al-Wansharisi (d. 1508).(27) These opinions were issued by prominent Maliki muftis living in the major towns of Muslim Spain (Cordoba and Granada), the Maghrib (Fez and Tlemcen), and Ifriqiya (Qayrawan and Tunis) between the tenth and sixteenth centuries C.E. Taken individually, these fatwas provide only a truncated and fragmentary picture of the Maliki family endowment. Most fatwas are less than a page long and focus on one or more technical aspects of the institution. A smaller number contain supplementary documentation that makes it possible to trace the history of an endowment from the year of its creation until the year in which the fatwa was issued).(28) For historical investigation, the fatwas are best utilized when treated as a single corpus exhibiting the characteristic features of the pre-modern Maliki family endowment...