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Waqfs in Palestine and Israel— from the Ottoman Reforms to the Present

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Waqfs in Palestine and Israel— from the Ottoman Reforms to the Present 62-5274 KHAYAT, Habeeb Albert, 1934- WAQFS IN PALESTINE AND ISRAEL— FROM THE OTTOMAN REFORMS TO THE PRESENT. The American University, Ph.D., 1962 Political Science, public administration University Microfilms, Inc., Ann Arbor, Michigan Copyright by Habeeb A lbert Khayat 1962 WAQFS IN PALESTINE AMD ISRAEL—FROM THE OTTOMAN REFORMS TO THE PRESENT by Habeeb Albert Khayat Submitted to the Faculty of the Graduate School o f The American U n iversity in Partial Fulfillment of the Requirements for the Degree of Doctor of Philosophy in International Relations and Organization Signatures o f Committee Chairman: /(L tc . ojc. Graduate Dean: 2.3 yfoy l>2- AMERICAN UNIVERSITY LIBRARY Date: JUN 2 11962 Ju n e 1962 •WASHINGTON. D. C. The American University Washington, D. C. •He ^ 5 ' s e ( = TABLE OF CONTENTS CHAPTER PAGE INTRODUCTION.............................................................................................................. 1 I . HISTORICAL DEVELOPMENT AND ADMINISTRATION OF WAQFS .... 7 Definition of Waqf . .................................................................. 7 The Procedure for the Creation of Waqfs ............................... 9 The Origin of W aqfs........................................................................... 15 The Various Types of W aqfs.............................................................. 21 Administration of Waqfs ............................................ ..... 25 I I . THE POSITION OF WAQFS IN THE LAND HOLDING SYSTEM................. 3k The Land Tenure System . .............................................................. 3k The Extent of Waqfs in the Land Holding System .................. Hi The Legal Characteristics of Waqfs................................... H9 I I I . THE OTTOMAN REFORMS.............................................................................. 60 Waqfs in the Ottoman Empire Prior to the Reforms .... 60 Pressures for Reform ................................... 67 The Tanzimat, 1839-1876, A.D. ........................................ 69 Centralization of Waqf A ffairs.................................................. 71 Law Reform .................................. 72 Provisions of the New Legislation Affecting Waqfs . 76 Registration and Transfer of Lands........................................ 79 Young Turk Reforms ................................... 83 Success and F ailu res o f th e Ottoman R e fo r m s..................... 85 IV. THE PALESTINE REFORMS.......................................................................... 90 Initial Administration of Waqf A ffairs.................................. 90 i i i CHAPTER PAGE The C onstitution o f th e Supreme Moslem (Shari'a) Council ................................... 95> A c tiv itie s o f th e Supreme Moslem Council ........................ 103 The Reform o f th e Supreme Moslem Council .......................... 109 An Assessment of Vaqfs in Palestine ....................... 116 V. THE ISRAEL REFORMS.................................................................................... 127 Problems Created by the Partition of Palestine . • 127 Extent o f Waqfs in I s r a e l ..................... 13k The Control of Waqf A ffairs.............................................................. llj.0 The Adm inistration o f Waqfs in I s r a e l........................................ lU6 The R elig io u s Courts ......................... 1{?0 An Assessment of W aqfs....................................................................... l5U V I. COMPARATIVE DEVELOPMENT OF WAQFS IN THE SURROUNDING COUNTRIES........................................................................... 16U Similarities and Differences in the Waqfs o f the Middle E a s t .......................... l 6U Waqf Reforms in the Middle E a st.................................................... 172 The United Arab Republic (Egypt) ............................................ 173 The Syrian Arab Republic ................................... 176 Lebanon ........................................... 179 J o r d a n..................... 180 Brief Survey of Other Waqfs .......................................................... 183 CONCLUSIONS................................................................................................................... 188 BIBLIOGRAPHY......................................................................................................... 199 iv CHAPTER PAGE APPENDIX A. Note on Spelling and Pronouncing Arabic and Turkish Names ...................................................................... 217 APPENDIX B. G l o s s a r y ............................................................................................. 218 APPENDIX C. The Hejira Calendar and the Turkish Fiscal Year . 225 APPENDIX D. Months o f the Muslim Year—from 622' A. D............................, 226 APPENDIX E. Cro§§ Reference List of Hejira, Fiscal (malieh) and C hristian Years from 1839 A.D. to i 960 .... 227 APPENDIX F. Christian Sects of the Middle E a s t .................................... 230 APPENDIX G. Christian and Muslim Sects in the Middle East .... 231 APPENDIX H. Supreme Moslem (Shari'a) Council—I n c o m e...................... 232 APPENDIX I . Supreme Moslem (S h ari1a) Council—Expense ..... 233 APPENDIX J. Demographic Information on Israel ....e.... 23k APPENDIX K. Breakdown o f Arab Population by R eligious Sects . 235 INTRODUCTION Prior to th e Ottoman reforms, the in s titu tio n o f waqfs was the main method devised by Muslim society to meet the needs for public education, religious education, and social welfare activities in such matters as the care for the destitute, the sick and the hungry. Waqfs were properties the use or income of which was benefit of some person, object, or purpose. In this respect, they fulfilled roles analagous to the religious interests in Europe during the Middle Ages and, in addition, fulfilled the same role as family1 trusts in Anglo- American jurisprudence. Although, waqfs may not have originated in Arab history, in the process of time they have developed into a part of Muslim jurisprudence and in s titu tio n s . During the nineteenth century, the Ottoman empire set an example for the countries of the Middle East by the reform of what was essentially a Muslim state into a modern state through the adoption of new legal techniques, codes of law, a new structure of government, and to a certain extent, a measure of secularization. These measures were fa r from complete at the clo se o f World War I , and the legacy of unsuccessful and successful reforms was left to the newly formed states of the Middle East. The political demise of the Ottoman Empire left Palestine under a European power, which came into existen ce by virtue o f the Mandate from a concert o f powers designed to carry out a program of action in Palestine in order to facilitate the creation of a "national home" for the Jews in P a le stin e without in frin g in g upon the c i v i l and r e lig io u s rights of the inhabitants. Waqfs were guaranteed in the mandate to be administered in accordance with the wishes of their founders, while the communities of Muslim shrines which were also waqfs were equally guaranteed. This meant that a dynamic program of change was to be brought about together with the preservation of traditional religious institutions existent in the country. During the year 19U8 , the state of Israel was created from a portion of Palestine resulting in the displacement of large numbers of Palestinian .Arabs from that territory so that many villages containing waqjf properties were emptied of their inhabitants. Despite the role which waqfs played in the Ottoman reforms and the p o lit ic s o f P a le stin e , and in spite of Hie fact that waqfs served religious and social needs in society—showing opportunities utilized and missed in the reform of society, little effort has been expended by writers on this subject. Some attention has been paid by jurists to the laws pertaining to waqfs | a great deal of attention has been shown to waqfs of some other countries; and some aspects of the Holy Places have fascinated archaelogists and theologians. However, the extent of waqfs in Palestine, their financial structure, their classical and changing roles during the aforementioned periods and their position today have been largely neglected. It is hoped that this study will afford a glimpse into the evolution of man-made institutions or the l&ck of them in a swiftly evolving world. The purpose of the stucfy is not to condemn but to 3 k understand the role which waqfs played in the Ottoman reforms and in Palestine since then. This study w ill probably add to a knowledge of the institutions of Israel perhaps essential to any future peace in that troubled area of the world. No single method can be followed in dealing with the subject of waqfs since they involve legal, financial, sociological and political issues. Most of the sections in this work are descriptive and comparative, but without the use of analysis much of the financial structure of waqfs would be meaningless. This study has been broken down as follows: The first chapter presents the historical development of the institution of waqfs, emphasizing their theoretical and actual origin, explaining the various types of waqfs, the method for their creation, and the general theories of waqf administration. The second chapter attempts to show and explain the p o sitio n of waqfs within the land tenure system, the extent of waqfs in relation to land of other
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