Kayhan Jafar-Shaghaghi Phd Thesis

The development of the legal parameters of the waqf institution in contemporary Iran and its socioeconomic impact Kayhan Jafar-Shaghaghi Submitted for the degree of Doctor of Philosophy (History) at the University of St Andrews July 2013 1 Abstract This thesis argues that the laws of waqf in Iran lack modern relevance. Such laws have never been completely modernised, and the waqf system, no longer responsible for the delivery of public goods, still holds a vast array of properties and resources. Many of the ongoing socioeconomic and political disappointments of Iran, which, at the core, are the weakness of the country’s private economic sector and its human capital deficiency, stand among the lasting consequences of the deficiency of resources which the institution of waqf has under its control. Traditional Islamic law laid the ground for the economic infrastructure of the Middle Eastern countries until the late 19th century. Among the institutions that contributed to shaping the economy of the region are the Islamic law of inheritance, which inhibited capital accumulation; the absence in Islamic law of the concept of a corporation and the consequent weaknesses of civil society; and the waqf, which locked vast resources into unproductive organisations for the delivery of social services. It is often argued that many of these obstacles to economic development were largely overcome through radical reforms initiated in the 19th century. However, the modern civil law of Iran has kept traditional Islamic law at the core of laws of waqf, and the process of modernisation of its laws remains incomplete. 2 1. Candidate’s declarations: I, Kayhan Jafar-Shaghaghi, hereby certify that this thesis, which is approximately 76000 words in length, has been written by me, that it is the record of work carried out by me and that it has not been submitted in any previous application for a higher degree. I was admitted as a research student in February 2006 and as a candidate for the degree of PhD in October 2007; the higher study for which this is a record was carried out in the University of St Andrews between 2006 and 2013. I, Kayhan Jafar-Shaghaghi, received assistance in the writing of this thesis in respect to grammar and spelling, which was provided by M’s Janet Rauscher. Date signature of candidate 2. Supervisor’s declaration: I hereby certify that the candidate has fulfilled the conditions of the Resolution and Regulations appropriate for the degree of History in the University of St Andrews and that the candidate is qualified to submit this thesis in application for that degree. Date signature of supervisor 3. Permission for electronic publication: (to be signed by both candidate and supervisor) In submitting this thesis to the University of St Andrews I understand that I am giving permission for it to be made available for use in accordance with the regulations of the University Library for the time being in force, subject to any copyright vested in the work not being affected thereby. I also understand that the title and the abstract will be published, and that a copy of the work may be made and supplied to any bona fide library or research worker, that my thesis will be electronically accessible for personal or research use unless exempt by award of an embargo as requested below, and that the library has the right to migrate my thesis into new electronic forms as required to ensure continued access to the thesis. I have obtained any third-party copyright permissions that may be required in order to allow such access and migration, or have requested the appropriate embargo below. The following is an agreed request by candidate and supervisor regarding the electronic publication of this thesis: (iii) Embargo on both of printed copy and electronic copy for the same fixed period of 5 years (maximum five) on the following ground(s): publication would be commercially damaging to the researcher, or to the supervisor, or the University; publication would preclude future publication; 3 Date signature of candidate signature of supervisor A supporting statement for a request for an embargo must be included with the submission of the draft copy of the thesis. Where part of a thesis is to be embargoed, please specify the part and the reasons. 4 Acknowledgements First and foremost I would like to thank my family for supporting and encouraging my education. I would also like to thank my supervisor, Professor Ali Ansari for his dedicated supervision to this thesis. I would also like to thank M’s Janet Rauscher for proofreading my thesis. Finally, I also like to thank many friends (Dr Christofer LaRossa, Dr. Shahriar Sabet-Saidi, Dr Pedram Khosronejad, Mehran Zabihollah, Tobias Martin Hughes, Dr. Elizabeth Hutchin and Dr. Martin Dibbs) in St Andrews for their moral support during my studies in this beautiful town. 5 The Persian or Arabic language names and terms used and translated in thesis have been transliterated into the English alphabet following the Iranian Studies Transliteration Scheme 1reflected in the table below. Please note that there are two words, Waqf and Mutawalli, used throughout this thesis which do not conform to this scheme. As the majority of the scholarly works on the topic use “Waqf” and “Mutewalli”, these spellings were used to maintain consistency across studies of waqf. 1 From the Institute for Iranian Studies, scheme available from http://iranianstudies.com/journal/transliteration 6 Chapter I: Introduction ...................................................................................................................10 The process of modernisation of Iran’s legal system ...............................................................16 Defining rationality..................................................................................................................... 17 Framework of analysis ...............................................................................................................22 Discussion of sources ..................................................................................................................23 Chapter structure .......................................................................................................................28 Chapter II: The motives behind establishing a waqf..................................................................... 31 The Islamic economy and its fundamental characteristics .....................................................33 • The law of inheritance............................................................................................................. 33 • The concept of corporation .....................................................................................................34 • The prohibition of interest ......................................................................................................35 • The Islamic tax (Zakat) ...........................................................................................................38 Motives for founding a waqf ......................................................................................................41 • The protection of private property......................................................................................... 43 • The law of inheritance............................................................................................................. 46 • Piety........................................................................................................................................... 47 • Politics....................................................................................................................................... 48 • Financing ..................................................................................................................................49 Potential problems and disputes................................................................................................ 51 • Disputes..................................................................................................................................... 55 Concluding remarks ...................................................................................................................57 Chapter III: Founding a Waqf ........................................................................................................59 The founder .................................................................................................................................62 • Converting someone else’s property into a waqf ..................................................................66 The beneficiaries .........................................................................................................................68 • Beneficiaries of a private waqf ...............................................................................................72 • Beneficiaries in public waqfs ..................................................................................................79 7 The waqf object........................................................................................................................... 82 • Can only one section of a property be converted into a waqf?............................................ 83 • Jointly held assets ....................................................................................................................85 • Immovable goods .....................................................................................................................86

Load more