62-5274

KHAYAT, Habeeb Albert, 1934- WAQFS IN PALESTINE AND — 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 ...... 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 Prior to the Reforms .... 60

Pressures for Reform ...... 67

The , 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

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 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 . 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 categories, and the legal characteristics in the land

law peculiar to waqfs or similar to the other categories of land.

Chapter three attempts to analyze the Ottoman reforms from

the Tanzimat period until the first world war dealing with or influenc­

ing waqfs. It is a study of the role which waqfs, hitherto mostly a

religious institution, played in a country where the purposes of the

state began to include many of the functions which waqfs had previously

f u lf i l l e d .

Chapter four attempts to study t he rol» played by the Supreme Moslem Council, a body chartered by the Palestine Government for the administration of waqfs, during the British Mandate for Palestine, leading to the tragic events of 19U8. In addition, this chapter is of vital importance because the events of this period greatly influence the following period, which is dealt with in the fifth chapter.

This chapter attempts to depict the problems facing the

Israeli government with regard to waqfs, the system devised for their control, the activities in waqf affairs that have been carried out since the creation of the state, and the influences acting upon waqfs owing to changes in community structure and income.

The sixth and last chapter attempts a comparative study of waqfs in Israel to the waqfs in the surrounding Arab countries. Only pertinent differences and sim ilarities together with a short survey of the status of waqfs in those countries have been dealt with. P a lestin e and The title used in this dissertation is "Waqfs in/lsrael—from waqfs rather than is used the Ottoman Ref owns to th e Present." The term/"awkaf"/in order to conform to modern methods o f tr a n slite r a tio n .

A number of devices have been used in the following pages for the sake of simplicity and unity of presentation. Terms susceptible of an Arabic spelling and a Turkish spelling have been spelled the

Arabic wayj however, where the word has appeared in o fficia l documents or was fixed in common usage, the original word has been used together with the Arabic spelling following it in brackets where warranted. The word Ottoman has been preferred to Turkish when used in connection with the a c t iv it ie s o f the Ottoman Government. The words "Turkish" and "Arabic” are used in a linguistic sense since both were Ottoman subjects prior to World War I*

The study of institutions in the Middle East presents the usual problems of research in addition to some special problems connected with the difficulties in the transliteration of names and the trans­ position of dates. For this reason, a number of appendices have been included, partly to alleviate the difficulties encountered in the study of non-western systems and partly in order to present statistics and illustrations on pertinent aspects of this study.

These appendices include a note on the spelling of Arabic and

Turkish names;- a glossary of terms employed in the main text5 an explanation o f th e Ottoman fin a n c ia l and Muslim calendars; a transpo­ sition table of dates; some demographic information on the religious communities of Palestine in relation to the other countries of the

Middle East, Lastly, a bibliography has been included following the topical breakdown rather than the regular author and book presentation.

Research into waqfs in Palestine and Israel is by necessity eclectic. No single book has been found which deals with thAswiqf&c P a le stin e . in th a t/art;a. The memoirs of government officials and the official government yearbooks have been found to be most helpful in yielding information 0x1 the subject.

The absence o f any works on waqfs in Israel has led to wide mis­ conceptions in regard to the extent and nature of waqfs. Despite the importance of waqfs, the enormity of the political events in 19I48 for the Jewish and Arab inhabitants of Palestine has focussed intellectual attention on matters other than waqfs, to the effect that the study of traditional institutions in that state has been neglected and may perhaps continue to suffer in this way in the future. CHAPTER I

HISTORICAL DEVELOPMENT AND ADMINISTRATION OF WAQFS

I . DEFINITION OF WAQF

The word waqf is derived from the verb "waqafa" and the parti­ ciple "mawquf" which means ’’stopped" or "arrested" and refers to the restrictions placed on the property’s alienability by virtue of its dedication.

Waqf is used in , Israel, , Iraq, the United Arab

Republic and Cyprus. The North African countries p refer the word

"habs" (plural ahbas). Turkey renders waqf into vaquf (sometimes written as wakif) and its plural forms evqaf, ewkaf and evkaf. There has never been a unanimously agreed upon definition of waqf by Muslim thinkers although the term has been understood by all to consist in

"arresting** the property in prescribed ways.

Abu Hanifa (died 15>0 A.H.), the father of the Hanafi School of

Law which has been the o f f i c i a l school of law sin ce the Ottoman Empire in Palestine, considers waqf as the appropriation of any particular’ thing in such a way that the appropriator’s right in it shall continue and the advantage of it go to some charitable purpose in the manner of a loan. 1 His disciple, Abu Tusuf Ya’qub (died 182 A.H.) claims that the appropriator1s right is extinguished and the property belongs to

1 S.G. Vesey-FitzGerald, An Abridgement of Muhammadan Law According to Its Various SchoolsTLondon: Oxford University Press. H. Milford, 193l), p. 206. 8 2 God by virtue of it resulting to the advantage of his creatures.

Ibn Taimiya, another great thinker of Egypt (died 1328 A.D.) considers that the mechanism of waqf consists in the immobilisation of capital bringing in revenues and letting free rein to t he revenue (tasbil), thus the revenue of the waqf can be the benefit of a thing or more concrete matters.^

Waqfs have also been called religious foundations or endowments, ^

Muslim tr u sts and q u a si-tru sts, mortmain and dead hand. These have been attempts by various writers to make references to waqfs in telli­ gible to the Western reader. While it is true that waqfs have many characteristics in common with each of these institutions especially since the institution of waqfs antedates them by centuries,'’ for there are, indeed, some waqfs dedicated to religious purposes such as khans

(inns), zawaya and takaya (hospices and convents), others to fu lfill the functions of ch aritab le tru sts such as endowments to poorhouses and soup kitchens; s till others were dedicated with the intention of defeating the inheritance provisions of the Shar’ia law and hence were similar in their aims to lands held in England in mortmain and fee-tail,

2 Jbid., p. 207. See also Hedaya, trans. by Sir C. Hamilton, Book XV, p . 231.

Henri Laoust, La Methodologle Canonique de Taki-d-din Ahmad b. Taimiya (Le Caire: Institut franqais d'archeologie orientale, 1939),"” pp. i|l-U 2 .

Wesey-FitzGerald, C£. c i t . , p . 206, calls i t a foundation. < Sir Frederick Pollack and Sir Frederick W. Maitland, History of English Law Before the Time of Edward I (Cambridge: The University Press, 195>2) , Vol. II, p. 229, claim that trusts were introduced by Franciscans in the 13th century. 9

The immense v a riety o f waqfs and the con test of Islam ic 3aw^within which it operates make it desirable to refer to them within their Islamic meaning.

I I . 'THE procedure for the creation of waqfs

A waqf can be created through a specific instrument of dedica­ tion called the Waqfiqf (Waqfnamah)7, by w ill or without a specific decree. Obviously, the intention (niyya) of the dedicator (waqif) is the doctrine which determines whether there was an intent to create a and waqf J since the waqf came into existence by virtue of the act of dedication,the dedicator had to be equally capable of creating a waqf.

The classical view is that the instrument of dedication could be oral or written. When it was written, it was called the waqfiqh and consisted of the declaration of dedication accompanied by an Ilam

Shari’a which was a decision as to its validity by the Shari’a Court

Qadi. The intent to dedicate had to consist of a desire to dedicate irrevocably the Raqaba (ultimate right of ownership) without regard to reversion to the dedicator.® Some dispute occurs as to oral dedications.

Abu Yusuf permitted it while Abu Hanifa insisted on the approval of

^ Muslim Law is a vast field of study for schools of law in Islam.

^ Wafnamah is Turkish for Waqfiqh.

® Goadby and Doukhan, P a lestin e Land Law (Tel Aviv: Shoshany’s Printing Co., Ltd, 1935), p. 71. 10 the Qadi. The better view regarding Palestine (Israel) is that an oral dedication could be held to be invalid not o n ly because of a possible wrong meaning attached to the act of dedicator but that due to the requirement for registration at the Land Registry, the waqf cannot be created automatically without the necessary land transfers. o There are no rules governing the language of waqfiahs. Actual examples bear this out, although it is customary for waqfiahs to include certain expressions. The waqfiah must be signed by the Qadi, must have clear language as to the use of the property,^ the use of funds, inter alia, and usually contains much language from the Qur'an giving praise to the Almighty.

There are r e la tiv e ly few waqfiahs antedating the Ottoman conquest and, indeed, the first century of Ottoman rule. The earliest known

Arabic documents regarding forms of sale, delivery and waqfs are found 11 at Cairo. These are scanty and do not give much information on the subject, A waqf document showing the creation of a liith century

Christian waqf on the border of Palestine and Egypt is perhaps the most 12 interesting example because it shows the creation of a Christian

9 Thesis of Henry Cattan in "Law in the Middle East," (Washington, D.C., 1955), Chapter VIII, pp. 203-222.

10 The waqf documents studied give this matter a great deal of a tte n tio n .

^ See Bernhard Moritz, "Arabic Palaeography" (Cairo, no pub­ lisher, 1905). For information regarding Egyptian Archives as a source for the history of Arab lands and waqfs see Stanford J. Shaw, "Cairo's Archives and the H istory o f Ottoman Egypt," Report on Current Research, Spring 1956 pp. 59-72 published by the Middle East Institute.

12 See "Wad^f Document from S in ai," executed 755 A.H. (1351; A.D. in the reig n o f Hassan in A rpeli S aarisalo, A Waqf—document from Sinai (Helsinforsiae: Studia Orientalia of Societas Orientalis fennica, T933T, P. 1-2U. 5 11 waqf in the era of Egyptian domination of Palestine. Its language is identical with the other waqfiahs and it is also executed before a Qadi.

The most extensive waqfiahs are those of Ahmed Hersek-Zadeh which were exectued in 917 A.H. (l5ll A.D.). Their interest lies in the great

detail with which they deal with their subject matter, that is, the

creation of perpetual soup kitchens.^ There are few waqfiahs from

the early Ottoman period—the most notable of which are the confirma­

tio n o f several waqfs by Sultan Orhan, the son o f Sultan Osman dated

759 A.H. (1357 A.D.)^ and two waqfiahs of Sultan Fatih of the waqfiahs

of Karaman-oglu Ibrahim dated 81t3 A.H. (lli39 A.D.).

The reasons for the paucity of waqfiahs is readily understandable,

since the losses incurred in Palestine prior to the Ottoman conquest 15 were many and tragic. There is no single town or village which was not practically annihilated during this period. Another reason is the

transference of documents to Cairo by the Mamluk dynasty with the

result that the existence of documents regarding Palestine became

^ Waqfaamah of Ahmed Hersek-Zadeh, executed 917 A.H. (l5 ll A.33.) i s 3h pages, 6 3/8 x l/U inches. It consisted of a dedication to a mosque and perpetual soup kitchens in the town of Kesan and in th e Cape of D il. See Muhammed Ahmed Simsar, The Waqfiyah of 1 Ahmed Paga (Philadelphia: University of Pennsylvania Press, 19Uo).

^ See T arih-i Osmani 'Enjumeni Mejmuasi (Journal o f the Ottoman Historical Commission) Vol. 28-29 (Istanbul, 19110'j ibid. , No. 28 by Dr. F riedrich von K ra elitz, pp. 21*2-250. 15 The study of Ottoman documents s till yields priceless information on waqfs in P a le stin e . See Bernard Lewis, "Notes and Documents from the Turkish Archives," The Israel Oriental Society, 1952 and his "The Ottoman Archives as a source of the History of the Arab Lands," Journal of the Royal Asiatic Society, October 1951 especially pp. 15U-155 which contain a lis t of volumes regarding Palestine. 12 subject to the winds of fortune that befell Egypt, so that today while many waqfs may trace their existence to a time prior to the Ottoman conquest, few can do so with the production of written documents.

As time passed in the Muslim era, it became quite clear that many waqfs could not be supported by written documents although these properties had been so regarded for generations. To simplify this chaotic state of affairs, the doctrine that the existence of a waqf can be inferred came about in such in sta n ces as when one b u ilt a mosque and let people pray, or installed a fountain and let people drink.

Curiously enough this doctrine came about by analogy to sale, in that the delivery concluded a sale and since one lets people pray or drink he has divested himself of interest in the property and hence has sold i t to the community.

This doctrine comes in very handily in Israel regarding waqfs.

While permission cannot give rise to prescription, it may be assumed that in judging property where the owner of record has not divested himself of title through dedication no such dedication can be inferred but where people had prayed for generations without any person being the owner of record there can be a presumption of the existence of waqfs. The reason for this is that neither Judaism nor Islam requires 17 prayer in specific buildings. The only example where permission

■1 /* x Henri Laoust, Essai sur les doctrines sociales et politiques de Taki-d-din Ahmad b. Taimiya^Le Caire: Institut francais d1 arch€o- logie orientale, 1939), p. lwl»

17 , however, places a greater emphasis on prayer in designated buildings. 13 would seem convert land into waqf is that of permission to buyy*18 Waqfs are declared to be capable of creation by w ill. This is somewhat m isleading because w ills to have any e ffe c t must be reg istered with the Shari'a Court and hence operated as a declaration. The limitations of inheritance laws come into operation and hence the creation of waqfs can cnftp atoautaboljr in an analogous situation as disposition by way of sadaqa or up to one-third of the property, hence w ills place a severe limitation on size and portion of a man’s wealth th a t can be so dedicated.

There are certain attributes that the dedicator (waqif) must have before he can dedicate his property. These attributes go to his legal capacity to perform the act of dedication and consist of his ownership of the property, the soundness of his mind, his minority or majority, the jurisdiction of the court, and whether he was free or slave. The last prerequisite is obviously of no importance in this day. The other prerequisites are more complicated.

The dedicator must be the owner of th e property in question, th a t i s , i t must be h is mulk where he i s possessed o f the ra^aba and the tessaruf. The question whether it is leased or not is immaterial since he cannot pass on greater rights than he has in the property. At the same time he cannot dedicate something which is not his to dedicate.

^ According to Muslim law cemeteries are waqfs. Article 33 of the Land Code forbids burial in Miri land because such a burial would convert Miri into dedicated mulk or waqf. This issue used to be of some importance when it was possible to have

separate ownership of land and buildings or trees (mplqata1) or where it was possible to dedicate one's portion of some property? however, today these attributes are no longer true. Joint ownership or owner­ ship in common can be divided at the request of one of the co-owners*

It used to be that no mortgage could be held on waqf land but today this is no longer the case since a mortgage once legal continues to be

so . The sta te has a veto power since the land must be tran sferred at the Land R egistry and can deny the change o f ca teg o ries where t h is i s liable to create additional problems.

The property must have four attributes. It must have value, it must be a thing the benefit of which is mubah (permitted), it must be possessed and it must have the capacity of being held in reserve

although this is held only by the Hanafi jurists. Examples of things which cannot be reduced to possession are corpses, wine, pigs, air, 19 the wind and the sea.

Should the waqif be insane, his act of dedication would be invalid. Muslim law through its insistence on an Ilam Shari'a had real built-in safeguards concerning insanity and minority for the Qadi could investigate and had to declare that it was valid. The extreme

cases of insanity (this is, total irrationality or acting like a wild beast) were obvious cases and could be disposed of easily by the Qadi.

M. Khadduri and Liebesny, eds., Law in the Middle East—The Origin and Development of Islamic Law (Washington, D.C.: Middle East Institute, 1955), Vol. I, p. 199. On the other hand, less obvious types of insanity made the Qadi ill- equipped without medical assistance to determine sanity. Minority varied in Islamic law but could by no means be said to be unregulated.

I I I . THE ORIGIN OF WAQFS

The theoretical origins of the system of waqf are not very clear.

Abu Hanifa and Abu Yusuf Ya'qub both refer to waqfs in the same way as subsequent generations have known them, but between these two great thinkers and the Arab conquest of the Middle East lies the rule of the

Orthodox Caliphate and the Ummayadc-dyansty, a tim e-span s u ffic ie n t in length for human institutions to develop. Some Arab writers like Ibn

Taimiya ascribe the origin of waqfs to the Orthodox Caliphs Omar and 20 Uthman who were alleged to have lgid aside land for the faithful? while other writers refer to incidents in the life of the in justification of the system of waqfs.

There were existing models for waqfs such as the amphyteuses in

Roman Law which were analogous to lands held in trust, and the great protection given church lands in the system of "Piae Causae." ^

The Arabs' assimilation of the architecture, philosophy and natural sciences of other cultures is beyond historical dispute, and even systems of administration were borrowed from the existing Byzantine

Oft / CKJ Henri Laoust, La Methodologie Canonique de Taki-d-Din Ahmed b. Taimiya, op. cit., p. 20l£ pi Encyclopaedia of Islam, M. Th. Houtsma, et al (eds.), (London: Luzac 1913-191h), Supplement 1938, "Waqf," p. 113U e t seq uitu r. Fourth E d ition . and Persian systems so that the line would hardly have been drawn in the matter of waqf. The borderline could conceivably have been drawn in matters of theology, specifically faith, but waqf is a system of land tenure which does not deal directly with faith and morals.

Three other factors of early Arab practice seem to lend them­ selves to this theory, (l) Waqf could not exist in a nomadic society for obvious reasons. (2) Such waqfs as could exist had to exist in the cities of Arabia proper, but then nothing similar to waqfs existed in those cities. (3) There were in existence trusts (amana) but -these were pledges and the reference to the Prophet Muhammad's purchase of a camel whose ure had been reserved could well be true without adding to our knowledge of the subject.

A different theory claims that the land policy of the early

Arabs lends itself to its theoiy of the origins of waqfs as follows:

A distinction was made between what the seized in war called ghanima and what they obtained under a treaty of peace, called fay1

Land, according to some, was considered as fa y ' because ghanima could not be withheld, but if the Imam (Caliph) wished it he could also withhold fay*.

According to Abu Yusuf, the ghanima was divided equally among the followers of the Prophet after one-fifth was withheld by the Imam

(Caliph) to be used for poor relatives, orphans, the destitute and the follower of the way (traveler).

22 al-Khara.j of Yihya ibn Adam translated and annotated by A. Ben Shemesh (Leiden: 1958), pp. 2U-26. 17 23 Ibn Adam was of the opinion that the booty could be declared as ghanima, in which case it was distributed after the fifth was deducted, or it could be declared as fay1, in which case it was not divided at all but was kept or disposed of by the Messenger of God.

Since there was no uniformity of opinion regarding this policy and the emphasis was on the Caliph's power, the most that can be derived from this is that aadaqa in early Islam (generosity to the poor) was widespread.

The actual origins of the public waqfs, that is, Waqfs 'Umomy in Palestine seem to have been motivated by the religious impulse, by th e r iv a lr y w ith and Medina and through c o n flic t w ith the

C hristian powers o f Europe during the Crusades,

Palestine occupies an important place in the religious thought of Islam but it is a subordinate place to the two "holy” cities of

Mecca and Medina which revolve around the l i f e o f th e Prophet,

Jerusalem is associated with the story of the elevation of Muhammad to Heaven by the Angel Gabriel, and Palestine, especially Jerusalem, contains the places of interest regarding the lives and burial places of the and patriajp&Ssof the Old Testament which are equally honored together with Christianity and Judaism in the religious thought of Islam ,^ While all such places are honored by Muslims, the

23 Ibid., p. 2lu

The most important of these places are the Cave of Macphelah at Hebron which is the site of the tombs of the Patriarchs; the Haram al-Sharif area in Jerusalem which contains the site of Solomon's Temple and is also the place associated with the elevation of Muhammad to Heaven; the tomb of David which is also the scene of the Last Supper; and various tombs such as the tomb of Rachel and th e Cave o f E lija h , 18 tombs and the Haram al-Sharif receive the greatest amount of attention.

Since Palestine contains places of interest to Muslims, attempts were made to encourage to Jerusalem in lieu of Arabia when politics so warranted. The earliest such example occurred in the reign of the Caliph Abd; Al-Malik (685-705 A. D.) who built the Dome of the

Rock at the Haram al-Sharif in order to keep pilgrims away from Medina 21? because his rival, Abdullah ibn al-Zubeir was there, ? which kept pilgrim s away from him and l o s t the Caliph trade and in flu en ce.

The Crusades heightened Muslim religious interest in Jerusalem

and Palestine,^ so that Palestine after many centuries of neglect, once again received attention as well as some funds. The most important founder of waqfs was Sultan who around 662 A.H. created waqfs 27 for the benefit of pilgrims who were walking to Jerusalem. This religious interest was heightened by the fact that the rulers had little or no control over Arabia. It is stated that in 300 y ea rs between the end of the Crusades and 1520 A.D., some 50 madrassas were established in Palestine distributed as follows: Jerusalem, hb; Hebron 3j Acre, l j

Gaza, Ij Safad, 10 This made a total of 76 madrassas, khans and pQ zawayas at Jerusalem alone. Not many of these ancient waqfs survive.

2£ Charles D. Matthews, Palestine, Mohammedan Holy Land (New Haven , Conn.: Yale U n iversity P ress, 19^9), p. 22.

26 A.S. Attiyah, The Crusade in the Later Middle Ages (London: Methuen and Co., L td., 1938), pp. ii6B^l|69.

27 Henri Laoust, Essai sur les Doctrines Sociales et Politiques a Taki-d-dln Ahmed b. Taimiya, op. c it. , p. 31.

28 See L.A. Mayer and J. Pinkerfeld, Muslim Religious Buildings in Isr a e l (Jerusalem: M inistry for R eligiou s A ffa irs, Government Printer, 1950), pp. 10-11. 19

Those that do are the following:2^ Madrassat al-Salamieh, circa 1300

A.D. at Jerusalem; Mansuri hostel, 1282 A.D. formerly used as a prison but after World War I used as a Khan for Sudanese; Aid al-Djjm hostel,

1267 A.D.; Rabat al-Kurd, 1290 A.D.; Arghunieh Madrassa, 135>7 A.D.;

Khatunieh Madrassa, 1351; A.D.; Asardieh, 1359 A.D.; Manjaqieh, 1360

A.D.; Malikieh, no exact date but it is thought to be in the Burjite

Dynasty; Madrassa al-Ta^iya, 1329 A.D.; Tashtamurieh, 1382 A.D.;

al-Tanqizieh, 1329 A. D., formerly premises of Shari'a court; Ashrafieh,

1U80 A.D., by Sultan Qayt bey; Sitt Tonsoq al-Muzzafar palace, Burjite

Dynasty; Abu Madian waqf a lso known as the Moghrabi waqf dates back to the thirteenth century.

These waqf dates denote the increased Muslim in te r e st in

Palestine, especially in Jerusalem, after the Crusades.

The origin of the mosques in Palestine is less clear than that of the madrassas since places for worship had to be provided usually for the people in the cities and towns. The most important mosques

are those of the Haram al-Sharif compound (comprising both Qubbat al-S ach ra1 and the Masjed al-A qsa) ; the mosque at Hebron (al-K h a lil

al-Rahman); th e al-Jazzar mosque at Acre; Jami1 al-Thabieh at Jaffa; and th e Great Mosques at Ramleh and Gaza. The f ir s t two are very ancient, the al-Jazzar mosque is relatively recent dating from the

18 th century, w hile the mosques at Gaza, Ramleh, and Jaffa are said to have been converted from churches in the 13th century. The practice

2^ See Luke and Keith-Roach, The Handbook of Palestine and Trans-Jordan (The Macmillan Co., 193577 PP« 70-72. 20 of turning churches into mosques and vice versa was quite pronounced in the era of the Crusades when the presence of crescent or cross over a building depended on the power holding the town.30

In addition to the religious schools, inns, and hostels, there were in Palestine many mosques holding the remains of some famous ■an Muslim fig u r e.J

The oldest waqf in the country was situated at Hebron and belonged to the Tamimi clan. Its origins were said to go back to the

Prophet Muhammad. While there is very little evidence to support this claim, nevertheless, the tradition serves to point out its antiquity.

Several other waqfs belonging to the Muslim fa m ilie s of the Jerusalem

Sanjak exist, notably the Khalidi waqf in the , the Dajani waqf at the tomb of King David, some waqfs in the Jaffa area belonging to th e T aji fam ily, and the Khanqey mosque belonging to the 1 Alamy family in Jerusalem. In relation to the other public waqfs, these are not very extensive.-'12

The non-Sunni Muslim waqfs are few. The Bruze waqf at Hittin

3® For more d e ta ils see Roy E lston , Handbook of and P a lestin e

31 Of these the most noted are the Sheikh Abu Kebir, Qubbat Sheikh Murad founded in 1335 A.D. by Emir Jamal al-Din ibn Ish&ckj Qubbat Abu Nabut circa 1820 A.D. and Shiekh Ibrahim al 'Ajamij all of which are at Jaffa. Mamillah' cemetery at Jerusalem, and innumerable tombs dispersed around the countryside a ll over Palestine, most of which were only of local interest. Samuel Tolkowsky, The Gateway o f P a le stin e —a H istory o f J affa Xlondon: C. Routledge and Sons, Ltd., 1925), pp. 12?7 136, 155, lF^T-

3^ There is no survey of the extent of these waqfs beyond the fa c t th at the mulhaca waqf tith e s amounted to L8,000 at the time of the British occupation of Palestine which is relatively little in compari­ son to the tithes of other public waqfs. 21 probably dates from the 13th century, after the Crusades, since the

Druze community came about only sin ce the Caliph al-Hakim and immigrated to Palestine in the 17th century.

There were also few Jewish waqfs since there were few Jews in

Palestine prior to the 19th centuiy. Some synagogues in Jerusalem are 33 probably 300 years old and yet others were established at Jaffa in

1820 but apart from some poor houses established by Sir Montefiore at Jerusalem around i860, there were some important tombs of various

Rabbis and prophets.

The oldest Christian waqfs belong to the Orthodox communities in Palestine; whereas, the other Christian sects have fewer and less ancient waqfs.

IV. THE VARIOUS TYPES OF WAQFS

There are many types of waqfs which can be classified either according to the purpose or the physical description of the waqf, or according to the conformity or non-conformity of the constitution and admin­ istration of the waqf with the rules of the Shari'a.

Waqfs representing the former category are herein listed.

1. Waqf Gfouedik is the only waqf which consists of movable property usually in the form of tools of trade. It is said to occur in Turkey where guilds existed but has had no application in Palestine where the guild system never flourished. In Palestine there were

33 Samuel Tolkowsky, op. c it., p. 1^6 ; also Jewish Encyclopedia (Jaffa, Vol. VIII), p. $26, " 22 libraries^ and instruments of devotional use in some zawayas^ but these objects belonged to the waqfs concerned and could be said to be parts of these waqfs and not forming a special category in themselves.

2. Waqf Mussaqaf (p lu ral, awqaf mussaqafah) l i t e r a l l y means a "roofed” waqf and refers to waqf buildings. Since any waqf building may be "roofed" a ll waqfs may fa ll under this descriptive term. However, th is term was used more o ften in Ottoman le g is la tio n to r e fe r to th o se roofed waqf buildings held in i.jratein which was a tenancy system permitting the tenant many of the privileges of ownership.

3 . Waqf mustaghil (plural, awqaf mustaghilah) refers to those

income-bearing properties which are not waqfs mussaqaf such as orchards

and vineyards. It was often used in Ottoman legislation to refer to

those waqfs mustaghil held in ijratein.

h. Waqf muqata1 (p lu ra l, awqaf muqatatah) means a "divided" waqf and refers to those lands whereby an agreement with the Mutawalli

or the Waqf authorities permitted a lessee to erect buildings or plant

trees or vines, it being understood that the improvements would be his

mulk. There are many examples of this type of waqf although no new

muqata* waqfs could be created after the Young Turk Revolution and

thus this type began to disappear.

3k The Khalidi waqf in the old city of Jerusalem contained such a library. See Beatrice Erskine, Palestine of the Arabs (London:

3$ Some dervish orders use instruments as part of their services and which are kept in th e ir convents. See A .J. Jaussen, Coutumes Palestiniennes (Paris: Librairie orientaliste, P. Geultier, 1927)» for an interesting account of a dervish order at Nablus. £. Waqf khairi is a waqf whose purpose is to endow a particular charity or whose purpose is charitable. All waqfs attached to mosques, for the upkeep of cemeteries or similar religious purposes are called khairi waqfs.

6 . Waqf a h li, waqf mulhaq ( awqaf mulhafta) and waqf dhurri are family waqfs. These terms are used in contradistinction to waqfs khairi to denote that they are dedicated to families in a similar way to an ordinary trust. Although the Hanafi sect regards dedication of property to one's family as a pious purpose and thus charitable, a growing tendency in the Arab countries of the Middle East no longer considers them as charitable waqfs. Palestinian usage seems to prefer

"waqfs umumy and waqfs mulhaqa" while non-Palestinian usage tends to prefer "waqfs khairi and waqfs dhurri and ah li."

7« Waqf umumy is a waqf dedicated for the use of the public.

Since public meant the Muslim community i t must be so understood^ however, there are many such waqfs that benefit all the inhabitants such as water fountains (sabils). Its usage is restricted to the

Muslim community only when i t r e fe r s to waqfs o f a r e lig io u s character such as mosques, cemeteries, religious hospices and convents, inns for

Muslims, poorhouses, religious schools and the like. There are many such examples in Palestine.

8 . 1.1 ara wahida and ijratein waqfs refers to a single rent

Mulhaq means "attached" and referred to those waqfs not under the Ministry of Euqaf, however, in Palestine it came to refer to family waqfs. 2U

(i.jara wahida) or a double rent (ijratein). Waqfs were sometimes

leased on leases as ijara wahida or on two rents one of which was paid

in advance and the other later (see section on inalienability infra).

9. Hikr is synonymous with ijratein although some writers have

attempted to make a distinction between them on the ground that in

ijratein the rent is not fixed while it is in hikr, however the dis­

tinction is not always true.

A list of waqfs according to their conformity or non-conformity with the provisions of the Shari*a follows.

1 . Waqf mustesna means an exceptional waqf. Although it

originally referred to those Christian and Jewish waqfs and hence

exceptional in the sense that they were non-Muslim waqfs; the term

has been broadened to include all those waqfs not under the Ottoman

Ministry of Evqaf (waqfs). These were the waqfs where the Mutawalli had all the powers of administration. All Christian and Jewish waqfs

are mustesna but if classified according to their description or

c h a r a c te r istic s w ill be the same as the Muslim waqfs.

2. Waqf sahih and waqf ghair sahib (p lu ra l, awqaf sahiha and

awqaf ghair sahiha) refer to those lands dedicated according to the

rules of the Shari*a, i.e . , dedicated mulk (thus a "true" waqf) while

dedicated miri (ghair sahih) is untrue waqf.

3. Waqf mazbut and waqf ghair mazbut (plural, awqaf mazbuta

and awqaf ghair mazbuta) mean "correct" and "incorrect" waqfs and refer to those waqfs held by the Waqf Authorities as "correct" while

those not so held are "incorrect." The term was not used disparagingly but to show those waqfs included under the Mazbata or list of properties by the Waqf Authorities which were under their control.

1*. Takhsissat waqfs (a corruption of Takhasus ila al awqaf) refer to those lands or buildings where the taxes had been dedicated by the State to some pious object or purpose (waqf). They can be dedicated for some specific waqf or to the Waqf Authorities. The takhsissat waqfs refer to the taxes from miri waqf (mevqufe) lands where the holder paid the tithes, and fees for succession and transfer and these were in turn paid by the State to the waqfs.

It is highly debatable whether this type of waqf is really a waqf at a l l or simply a means by which the Ottoman S tate paid an

indirect subsidy to the religious authorities. Since this item of revenue figured so prominently in the extent, nature and purposes of waqf, its inclusion as a waqf for the purposes of analysis becomes

necessary.

V. ADMINISTRATION OF WAQFS

The administration of waqfs involves two acts, that of the

to w lia t which may be compared to th e o v er a ll management o f the waqf

and the idara which is the actual management. As they have come to mean, the idara is said to be handled by the Mutawalli while the

to w lia t was held by the M inistry o f Evcaf (waqfs) in Ottoman days, to be succeeded by the Supreme Muslim (Shari*a) Councils and its committees,

and in Israel today to the Ministry for Religious Affairs.

During the days of the mandate, idara assumed the meaning of internal administration, whereas towliat could be said to have con­ sisted of budgets, apportionment of excess funds from one waqf to another, the use of mundarissa waqfs and the like. Prior to l8 H0 ,-^ there was no M inistry of Waqfs and before 1876 A.D. (1293 A.H.) all transactions in waqf lands were handled by the waqf authorities, but since then, by a series of several legislative acts, land registries have taken over the function of recording transactions. While the idara has remained the specific province of Muslim Law except where it clashes with the civil law, the towliat is subject to restrictions in the form of laws, regulations, and constitutions defining the role of the department or body handling such waqf affairs.

The waqfiah i s extremely important in the management o f the waqf since it delimits the functions and responsibilities of the administrators of the waqf and the apportionment of its revenues.

Classically, the Qadi and the Mutawalli held a division of responsi­ bility which in theory acted as a system of checks and balances. The

Mutawalli had to be honest, trustworthy, and capable of performing his office. These issues became important only if the Mutawalli were dishonest, untrustworthy and incapable of performing his office. Short of being a convict and obviously insane, incapacity is hard to declare.

Character witnesses could conceivably testify as to his unfitness, but

■unless their charges can be substantiated, nothing can be done about it. The Mutawalli was also charged with keeping the waqf buildings in

37 By the Law of Rabi al-Awwal 1293 A.H. (I876 A .D .). good condition, but unless there were ample funds to do so and the buildings were standing, he could not be forced to do so. The enact­ ment of various housing codes have made this old provision to keep buildings in good repair meaningful.

On the negative side the Mutawalli once appointed to office and having accepted it, could not resign without the permission of the

Qadi, could not reside in the property, could not increase the salaries of employees, and could not sell or mortgage the property.

Should th e waqf be a mosque and i f not forbidden by th e waqfiqh the Mutawalli could appoint the Imam and the Muezzin.^®

The restrictions on the Mut&walli were designed to protect the waqf against malfeasance by Mutawallis. If the Mutawalli could resign without permission, then the waqf would be left without an administrator. Such a situation could lead to all sorts of actions against the waqf without legal redress. By forbidding him to resign without permission, a substitute could be found to carry on the work.

If the Mutawalli resided in the property, then there would be a grave temptation to live rent-free or by paying very little rent and this could adversely affect the income of the waqf. In the same way the injunction against raising salaries and wages was designed to prevent mishandling of fundsj however, this provision was detrimental to waqfs sin ce i t assumed that in fla tio n was n o n -ex isten t. The in ju n ction against sale would have dire effects had this power not resided

38 Syed Ameer A li, Muhammadan Law (Calcutta: Thacker and Spink. 190U-1908), Vol. I, pp. 357-375. 28 elsew here.3?

The Qadi in pre-Ottoman days was more than a judge. He had

administrative as well as judicial duties. He had jurisdiction over

all Muslims regardless of social class, but criminal jurisdiction did not vest in him for it was the function of the Shurta. At the same

time, there were Hajibs and Mazalim to deal with customary issues

(arising out of custom) and equity.

In the course of time as there were more conversions to Islam,

the Qadi took on an in crea sin g ly r e lig io u s character and began to m inister to the needs o f the Muslim community by r e c itin g prayers,

seeing to it that the marriage contract was properly drawn up and

administering the estates of those who needed protection.

The Qadi, however, was not alone in his work. He had legal

experts called the Fuquha1 (singular, Faqih) to assist him, although

these people could not pronounce any judgment. The responsibility to

dispense justice always rested on one Qadi, although many Caliphs

obliged the Qadis to have persons in attendance^® and to ask their

opinions.

The Qadi had injunctive powers to imprison, investigate com­

plaints, but his specific functions were the settlement of disputes,

the enforcement of rights established in court, the protection of the

39 See se c tio n on Musawaghat conditions in Ottoman chapter in fr a .

^® Caliph al-Muti1 in Egypt required the Chief Qadi to have other persons in attendance (973 A.D.), as did Ibn Awwam (101U). weak, the administration of waqfs, the execution of w ills, providing for unmarried women, application of penalties, policing of buildings and highways, and controlling and appointing court o f f i c i a l s .

His waqf powers consisted of powers over the waqf and powers over the Mutawalli. In the former category, he could sell the waqf if it was in a bad state of repair,^ could nominate a Mutawalli,^ appoint one if there were no children^ and grant longer leases.to

His powers over the Mutawalli were those of supervision, ^ the removal of the Mutawalli and the increase of stipends.^

These great powers of equity fit very nicely in the magnificent scheme o f the Qadi’s p o sitio n as the cen tral figure o f Muslim law.

With the substitution of ministries and councils for some of the functions of the Qadi, it was inevitable that he should have been reduced in importance.

Once again, in Israel the Qadi is assuming in the absence of

to His functions could be regulated by the ruler; pr, if a sub-Qadi, by the Qadi whose delegate he was.

to Syed Ameer A li, 0£. cit., p. 336.

to Ibid., p. 35>U.

to I b id ., p . 370. However, he could not do so i f the M utawalli i s empowered to appoint a successor. P. 359.

to ibid., p. 338 (more than 2 years?) 30

Muslim councils and m uftis a p la ce of im portance. While i t i s true that he has not regained his once exalted position, nevertheless, his position as a distinguished personality may once again increase his importance and with it his equitable powers.

There are three general theories of administration important for consideration. The first is that of the annulment of the dedica­ tion act. This is so unusual that a Qadi "could be found with great difficulty to do so."^ The others are concerned with excess funds, that is, what to do if the purpose of the waqf becomes extinct or the income exceeds the provisions of the waqfiah. The theory arrived at is that of "Gins al-Maqsud, or the application of the funds to similar purposes. Thus, if the income of a school remains while the school itself perishes, the said income may be used towards the upkeep of another school with the same aims.

Another theory was that interest was allowable on funds of waqfs since charity was the purpose of waqfs and no one man was taking S l unfair advantage of the other.

Some differences in administration occur in the case of purely

See Chapter on Israel infra.

^9 See Henri Laoust, Essai sur les doctrines Sociales et Politiques de Taki-d-din Ahmed b. Taimiya, op. c it., p. 128, n. 2, where a Qadi annuITed the act of waqf~for the daughter of al-Ashraf ibn ’Adil.

See Henri Laoust, La Methodologie Canonique de Taki-d-Din Ahmed b. Taimiya, op. cit., p. 126, n . 1.

-*-*■ See Mouradgea d 1 Ohs son, Tableau General de 1* Empire Ottoman (Paris: 1781;), Vol. II, p. #0. 31

Christian or Jewish waqfs largely caused by the system of government employed by the governments of the Middle East since the Muslim

Conquest in the seventh century A.D. and known eventually as the m illet system .?

Under the m ille t system, each r e lig io u s community was s e lf - governing under its religious leadership in most matters not involving public security. The public Christian and Jewish waqfs such as churches and cemeteries were not considered the concern of the state in the same way as the Muslim waqfs which were in the hands of the religious authorities until the 19th century.

The head of sta te le g is la te d only for th e Muslim community in matters of a religious nature and approached the official Christian and Jewish representatives in similar issues; so that no attempt was really made to harmonize the provisions of the canon law systems and the Talmudic provisions into a coherent system of law identical in its provisions with the Shari’a.

Some exceptions occured in cases where the Jewish or Christian waqfs had been dedicated before a Muslim religious tribunal where the

Shari’a Court could then regulate the waqf in accordance with the provisions of the Shari'a but these properties were the rare exception rather than the general rule.

The main differences between the Shari’a provisions concerning the administration of waqfs and the non-Muslim rules of law for such

^ See Alfred Carleton, "The Millet System," (unpublished Ph.D. dissertation, Kennedy School of Missions, Hartford, Conn., 1937), pp. 27 - 28 . 32 issues lay in the greater authority of the heads of non-Muslim churches over church property and the often delicate inter-play of politics between the laity, the monastic orders and the heads of religions with the result that the delicate system of checks and balances devised in Muslim law between Mutawalli and Qadi was o ften nonexistent in the case of non-Muslim waqfs.

Some check upon the heads of religions acting in an arbitrary manner was sometimes provided by firmans from the and by the 51i Imperial Berats which defined the powers of the head of religion, although this same system was sometimes a hindrance rather than a help to the oppressed.

The Ottoman reforms e sp e c ia lly the Young Turk R evolution attempted to curb the powers of these heads of religions through the provisions for lay councils authorized to share in the administration

53 In the Byzantine rite applicable to both the Greek Orthodox and the Greek Catholic churches, the law of the churches allows the alienation of church property in cases of urgent necessity while a supervisor similar in his functions to a Mutawalli is called an Oikonomos. I t i s a p rin cip le o f the Eastern C h ristian churches th at the monastic orders govern their own property so that monks very often constitute advisory councils to the representatives of the monasteries. See A. Bertram and H.C. Luke, Report on the Orthodox Patriarchate o f Jerusalem (London, New York: Oxford University Press, 192l)j Frederick Jones Bliss, The Religions of Modern Syria and Palestine (New York: C. Scribner’s Sons", 1912).

5^ A collection of Berats can be found in George Young, Corps de d roit Ottoman (Oxford: The Clarendon P ress, 1905)« In the case of the Greek Orthodox church in Palestine an 1875 Berat stated that the Patriarch was the ruler and supervisor of all the Greek Orthodox shrines in Palestine. The translation of "Rum” for Greek or Roman caused a bitter fight between the Greek speaking and Arabic speaking elements for control of the Patriarchate’s property. %

of church property and waqfs in varying d egrees,b u t these councils

have rarely been able to assert themselves with the result that the

administration of church waqfs remains in the hands of the religious

authorities with a degree of lay participation in direct relation to

the numerical strength o f th e community and the pressure i t can bear

on such m atters,^

55 A r tic le I I I o f the Ottoman C onstitution ordained th a t each Qaza, that is district, should have a council for the supervision of waqf property, orphans' property and properties used for philanthropic purposes. The implementation of this provision was followed by the Greek C atholic Church and other minor orthodox churches. The Greek Orthodox Church never implemented it while the Roman Catholic Church was largely made up of monastic orders which were self-rulingo

^ None of these councils exist today. CHAPTER I I

THE POSITION OF WAQFS IN THE LAND HOLDING SYSTEM

Waqfs are dedicated properties and as such are part and parcel of the land tenure system which is subject to laws and administrative regulations defining its component parts and assigning to each part rights and duties.

All land systems are products of the historical marriage of events and man's attempt to regulate his life in terms of his values.

Sometimes man attempts to escape the rigidities of the system by subterfuge to devices while s till relying pro forma on the system.

For this reason, waqfs are studied within the land tenure system, an attempt is made to determine the extent of waqfs within that system, and all pertinent legal characteristics of waqfs are examined as they affect that institution.

The sim ilarities of waqfs to the other categories of land within the land tenure system and their differences serve to explain and illuminate the role which waqfs play in the legal system pertain­ ing to land.

The extent of waqfs within the land system serves to indicate not only the relative importance of waqfs in the distribution of land but also shows the possibility of future dedications based on the extent of land which can be so dedicated.

I. THE LAND TENURE SYSTEM

The land tenure system is the product of Muslim law, the feudalism existing in Palestine prior to the nineteenth century, and subsequent legislation.

Muslim law contributed to the system of land tenure the concepts of ownership (rnulk), non-ownership (non-mulk), the assumption that the cultivator had the right to farm land only so long as he cultivated it and that the inheritance of land was subject to the provisions of the revealed law.

Among the earliest attempts to regulate the ownership of land was the division of land into kharaji and ‘ushuri—paying lands, the first being taxed-land, that is, a flexible tax paid by the non-Muslim owners, and the latter being tithe-paying land held by Muslims. This distinction was blurred by the middle period of the Abbasid dynasty

and eventually disappeared with the appearance of the land codes in the nineteenth century.

The concept of kharaji and *ushuri lands is important to an analysis of the development of the land system since these categories included a ll sorts of land in the towns as well as cultivable lands in the villages. But that the eventual distinction between mulk land and miri land was influenced by other developments.

The Crusades imposed on Palestine a feudal type of land tenure and at the end of the Crusades in Palestine the Mamluk dynasties made up of the Bahri dynasty and the Bur ji dynasty imposed on Palestine a military feudalism which was not hereditary but was composed of officers administering districts and assigning land on the basis of persons available to cultivate the land. When this system is considered with the Muslim practice of encouraging cultivation by the dictum that land belongs to the cultivator, the origins of the system become fairly clear. Since these officers were slaves of the Sultan

and acting on his behalf, and after the weakening of the Mamluks in the fifteenth century and their defeat in 1J?17 A.D. by Sultan Selim I, what was more natural than to have the sta te assume the p r iv ile g e s of the Mamluks and hold that cultivable land was really state land with

the possessor having only the right of cultivation!

There are five categories of land in the land tenure system of

the country: mulk, miri (emirieh), matruka, mawat, and waqf. Matruka

land i s "abandoned" land and c o n sists o f highways, common pastu res,

threshing floors and the like. Very little land belongs to this

category and ownership of such land resides in the state subject to the right of the users. This land by definition cannot be made waqf unless

it is given to some group or individual.

Mawat land i s "dead" land or waste land, and r e fe r s to those lands which are incapable of cultivation such as; sand dunes. Naturally, waste land is not an absolute quantity since waste land can sometimes be turned into cultivable land after heavy expenditures and much labor.

This con d ition was recognized in Muslim and as "ih y a 1" which

turned the land once reclaim ed in to m iri land.'*' Most o f th e Negeb area

The Mawat Land Ordinance in 1921 forbade the reclamation of land without government permission because of Jewish-Arab antagonism so that although the theory of ibya remains, in practice its exercise without permission is trespass. See also Majalia, article 10£l. in the south of Palestine was of this type although it is often diffi­

cult in reality to distinguish between this type of land and land which is being cultivated.

Miil V land is property held in almost absolute ownership by the

legal owner. Even though the concept of mulk states that every man

can deal with his mulk as he sees fit, the mulk owner is actually

limited by the religious law of his community which prescribes definite

and set rules for the disposition of such land in w ills and by the

civil law whioh regulates the disposition of land in such issues as

land transfers, leases, sales, taxes and other matters affecting land

in general.

Although mulk land has historically included many kharaji and

ushuri farm lands, it has been restricted, as a result of the imposi­

tion of feudalism, to land in vallages and towns in existence prior to

the year 1909 A.D. The natural expansion of the towns and villages L does not operate as an automatic expansion of mulk holdings. Some

mulk agricultural land exists but in such small quantities that in

the whole of Palestine less than 100,000 dunums of cultivated land

belonged to the mulk category.

2 A certificate of the Department of Agriculture has become the authoritative decider as to whether land is mawat or not.

3 Majalla, article 1192.

^ No government since 1909 has seen f it to extend the mulk category to other categories except in rare instances such tfeethe creation of cemeteries. As a result towns are now built on miri and mulk lands depending on whether the site fe ll within the old town boundaries. There aTe two main d ifferen ces between mulk and non-mulk lands.

The owner o f mulk land can devise h is land by w ill subject to the r e s tr ic tio n s o f th e r e lig io u s law o f h is community and can dedidate his land as true waqf.^

Until the nineteenth century the Muslim religious authorities registered such land but this function has now become a state function.

Miri land is also called emirieh land and consists of state land. It is really composed of state domain in which the government retains both the legal and equitable estates, and of state land in which the government retains the ultimate right of ownership (al-raqaba) but has given some rights in the land to the holder.

Since the aim of the state from the Mamluk dynasties until the Palestine Government has been to restrict the farm land for culti­ vation, the holder of miri land was considered to possess only the right of cultivation in his lifetime 5 however, heirs usually obtained the right of succession to the land upon payment of the fee and the land could be transferred with the permission of the government.

Eventually these practices came to be acknowledged at law, at least since the nineteenth century.

Most of the land of Palestine with the exception of waste land and mulk lands were of this type. Although no accurate survey has ever been conducted to determine the extent of this type of land, it is estimated that there were between 8 , 0UU,0 0 0 dunums and 12,500,000

^ Palestine. Memorandum Prepared for the Royal (Peel) Commission, 1937, p. TZ 39 dunums of which seme 1,100,000 dunums belonged exclusivelyto th e s ta te (Public lands)

Miri land is not the "nrulk" of the holder and hence does not constitute a true waqf if dedicated. There are some miri lands which have been dedicated but this is very rare and the majority of miri waqfs belong to the takhsissat waqfs in which the waqf receives the tithes but nothing more.

Apart from the general reluctance of the government (in the days when wealth of the land meant the agricultural produce of such lands) to permit the use of such land for different purposes there seems to have been another reason why little miri has been dedicated by individuals to waqfs (as contrasted with dedications by Sultans) for much of the Arab farmland of the miri category in Palestine had been held under undivided common owhership called "masha. tH,

A commission investigating this type of land tenure submitted 7 a report to the government of Palestine in 1923 stating that the masha1 land of a village was divided into a number of shares (ashum)

^ The high figure is given in Report of the Palestine Commission on the Palestine Disturbances of August 1929» Command paper 3!?30, p. 113; the low figure is given in Palestine. Report on Immigration, land settlement and development, by Sir John Hope Simpson, Command paper 3686 (1930), p. So. The figure for state domain is obtainef from the testimony of Col. Salmon director of lands for the Palestine Government testifying in Minutes of Evidence heard at public session, Colonial Report No. 13U (l937)> p. <5o. The high figure is the result of the Jewish N ational Fund Testimony and i s probably somewhat high on th at account while the low figure is probably too low.

? Goadby and Doukhan, P a lestin e Land Law (Tel-A viv: Shoshany’s Printing Co. Ltd., 1939), p. 2o8. assigned to the male members of the village. On the death of the holder his heirs inherited his share but sometimes by purchase or other means several shares might be joined. Although theoretically females were entitled to share in the inheritance, in practice they were usually induced to waive it.

In each village there were usually several hama'il or clans and Q each hamulah had a fixed area of land assigned to it which was divided among the members of the hamulah so that the masha1 system ceased to apply to the village as a whole and applied to the various hamatil.

The village land was periodically redivided between the various hanA'il and individuals by following one or two main methods, either the village land was auutioned off to the various parties or the share was assigned an area in the same relative position as it held pre­ vio u sly .

Under this type of land tenure it was impossible to dedicate one's land since the individual had no clearly defined land, and at the

spie time many of the reasons for private dedications, such as the violation of the Qur'anic provisions for inheritance, were not applic­

able here.

Waqf land is recognized as a special category of land within the land tenure system but it remains essentially dedicated mulk or miri land. If it is dedicated mulk then it is deemed to be true waqf; if not, then it is an untrue waqf.

® A hamulah (plural hama'il) is an extended family concept composed o f the descendants o f a p a rticu la r person. la

Although the waqfiah (instrument of dedication) and the religious law determine many of the particulars governing a waqf, such as the powers of a mutawalli and the like, they are usually limited to the validity of the waqfiah, its interpretation and the application of the . religious law to the administration of t he property. On the other hand

since waqf is dedicated mulk or miri, the rights of the waqf are those

of the mulk or miri holder subject to differences at law governing waqfs, therefore where the law is silent on the subject it can be

assumed that the law of mulk or miri is pertinent.

I I . THE EXTENT OF WAQFS IN THE LAND HOLDING SYSTEM

The absence of s a tisfa c to r y cadastral surveys in the Ottoman

Empire (and Palestine) leaves much to be desired in the determination

o f th e waqfs both in th e Empire and in P a le stin e .

The Ottoman Empire had extensive lands which were waqfs—too

extensive according to the British and French governments which tried

to reform waqfs by applying pressure on the Sultan. It is said that

three-quarters of all the arable land in the Empire was waqf^ but a

different source claims that waqf land comprised one-third of all the

cultivable land in the Empire.^ Undoubtedly most of these waqfs were

"untrue" waqfs subsidizing social and welfare activities.

9 George Young, o£. cit., Vol. VI, p. 113.

^ Albert H. Lybyer, o£. cit., p. 200. 12

In the absence of a satisfactory survey, the extent of waqf land becomes a mathematical approximation of the waqf revenues to the other types of revenues. This system, has, however, limitations since land gives different yields and officials may place unrealistic valuations on property.H

The situ a tio n was somewhat le s s d ra stic in P a le stin e than in the Ottoman Empire for out o f a to ta l o f more than 1,000 v illa g e s , th e 12 waqfs amounted to some 100 villages and an unspecified share in others.

These lands were distributed all over the country and were in reality takhsissat waqfs in which the waqfs held only the tithes. The

actu al share o f the waqfs which belonged to the Muslim community amounted to some 12.75 percent of all agricultural tithes-. In addition to

In th e Ottoman Empire of I863 A.D. (13 Sep), waqf income con­ sisted of b0 ,000 bourses as compared with the following budget: Waqf income .... Civil list .... War ...... N a v y ...... In terio r ..... Foreign Affairs . . Commerce ...... 2,500 Public Instruction .... 2 ,bOO P o lice ...... Finqnce ...... TOTAL 323,000 See Vicomte de la Jonquiere, Histoire de l 1 empire Ottoman (P aris: Hachette, 191b), Vol. II, p. 2lu The value of a bourse (purse) widely fluctuated because of the Ottoman government's financial status.

1 P Simpson report, o£. cit., pp. 30-31.

13 Luke and Keith Roach, 0£. cit., pp. 37-39. See also Report f o r — ------1937, p. 77 and EoyaX Institute of International Affairs, Great Britain and Palestine (London: 19b6). th ese rural waqfs or m iri waqfs as they were known, th e Muslim community had over SOO buildings and cemeteries consisting mainly of rent-paying buildings and buildings used for religious purposes."^

The extent of the Christian and Jewish waqfs is much harder to determine than the Muslim waqfs because of the paucity and inaccuracy of official records to be found about church property. (The Jewish waqfs w ill be discussed later in the chapter).

There were some factors in the Christian religious communities which fostered the creation of waqfs while others served to deter t hem from such a course of action. Even though the Christian communities consisted mainly of town dwellers which meant that their property was mulk and therefore capable of creation as waqf, yet private Christian waqfs were insignificant because of the relative small size of the

Christian communities.

More often than not the public places of worship of the Christian communities together with church property were concentrated in the hands of non-Palestinian; religious orders who relied on their govern- - ■» ■ ^ ments, Patriarchs or other individuals for the registration of their property. Then, too, the age of the community in Palestine together with its wealth were additional factors for the existence or absence of

Christian waqfs.

The main Christian communities in Palestine were the Latin

Catholics (Roman Catholics); the Maronite Catholics, the Greek Catholics

^ Discussed in greater detail in Chapter IV on Palestine. (Jfelkite), the Greek Orthodox, the Armenian Orthodox, the Syrian Orthodox, 1< and Protestants of most denominations*

The Greek Orthodox Church in Palestine had more waqfs than the other Christian communities because of its long history in the area and because of the extensive size of the "Greek* m illet in the Ottoman

Empire. The property of the church, not all of which was waqf, consisted o f some 631 individual pieces of property excluding the various monas­ teries and cemeteries, broken down as follow s:^

Location Income from buildings Income fr<

Jerusalem LE 12,11*9 IE 1*81* 100 50 Bethlehem 1*5 Malha 20 B eit Jala 650 Jaffa 3,300 308 Ramleh 215 Ludd 18 Caesarea LE 15, 821? LE 17512

See Appendix infra for the numerical strength of each com­ munity. Coiqpared to the Muslim community, the total number of Christians amounted to one-tenth o f '.he t o ta l Arab population. The Muslim community was in fa c t 23 tim es la rg er than the la rg est C hristian community and 932 times larger than the smallest one*

^ Report on the Orthodox Patriychate of Jerusalem, by Messrs* Bertram and Luke {London, ftew ¥ork, Oxfords Oxford University Press, 1921), pp. 192, 301-303. This income was spent as follows: Central Convent (Jerusalem) LE ll*,000 Holy Sepulchre (Jerusalem) 5,000 Other convents 1,000 General Administration 5,600 Education 8,000 Rents out 3,000 Relief 2,000 Hospital and Dispensary 1,000 Repairs It, 000 Patriarchal Agencies 15,000 557550 It has never been made clear to what extent these properties were waqf. A Government Commission in v estig a tin g th e fin an ces of th e

Orthodox Patriarchate discovered a laxity in registration, with some buildings registered in the name of dead Patriarchs and religious officials. The number of buildings which were waqf was quite small but no authoritative list exists.^

The Greek Orthodox Patriarchate has in addition to its income- bearing buildings and lands some of the oldest monasteries in Palestine some o f which antedated the Ottoman Conquest and thus were m onasteries 1 p ab antique, that is, waqfs (including the lands attached to them).

Among these monasteries there were five Greek Orthodox convents and monasteries in the Jerusalem area that are most probably waqf: the Central Convent, the Holy Sepulchre, the Monastery of the Cross,

St. Simeon, and Mar Elias. There are also the usual cemeteries which are by nature waqf. The status of other convents is confused since they have been frequently destroyed or abandoned, but there seems to be no reason why they could not be considered waqf if the Patriarchate 19 so desired.

The Copts and Armenians share portions of the Holy Sepulchre

See Report on the Orthodox Patriarchate of Jerusalem, op. cit.

A rticle 122 o f the Ottoman Land Code recognized th e in a lie n ­ able character of monastery and attached lands. See R.C. Tute, op. cit., p . 116.

-*-9 it is unlikely that any clergy would prefer to consider property as waqf since they would have greater control if the properties belonged to another category of land. compound and the Nativity at Bethlehem and thus have a share of waqfs.

All these communities have some property mainly in the Jerusalem area, 20 a small portion of which in the old City of Jerusalem is waqf*

The Russian Orthodox Church had no religious community in Palestine but did own some property valued at $20 m illion mainly in the Russian

Compound of Jerusalem and on the Mount of Olives. Most of this property is in the mulk category and was registered in the name of the Imperial

Palestine Russian Orthodox Society,

The Greek C atholic Church owned some property in the north o f

Palestine most of which was ex-agricultural land and considered miri; however;, oa few cem eteries and the p ra c tic e of burying bishops in churches has turned an older church at and an old church at Acre into waqf s. There may be a few parcels of waqf but the break from the Greek Orthodox Church did not leave it with any waqfs for the use of the community.

The Maronite community had one church at Haifa dedicated as 22 waqf and perhaps one or two other churches in two border villages.

00 The old City of Jerusalem has the Armenian quarter which includes houses for the poor and likely to be waqf. Most of their com­ munities were concentrated in the Jerusalem area prior to the termina­ tio n o f World War I ,

21 The Greek Catholic Church broke away from the Orthodox group in the 18th century but were not r ecognized as a separate m illet until the l?th. Most of the area was agricultural and since there was an absence of shrines and holy places there were no waqfs. The only Holy Place is the Greek Catholic Church at Nazareth which is reputed to be on the site of an ancient synagogue from the time of Christ, oo There was no compulsion in village areas to dedicate or even register church buildings. The is the most complex of the Christian communities since there were a multitude of religious orders^ most of which were not of a local character. Since the churches were built mostly in the latter part of the 19th century, the property was frequently registered

2 '? in th e name o f fo reig n governments or Ottoman su b jects.

The Carmelites and the Franciscans are the two ancient orders serving parish functions. The Franciscans have been established in

Palestine since the period of the Crusades, circa 13hl A.D., and have been subjected to many expulsions the last one occuring in the seven­ teenth century. The Carmelites have reestablished themselves on Mount

Carmel since the last of the eighteenth century.

The ancient monasteries where the Franciscans have an interest

(principally the Holy Sepulchre at Jerusalem and the Nativity at

Bethlehem) are waqfs because they are monasteries ab antiquo. A good case may perhaps be made for the Franciscan Monastery at Nazareth established since the seventeenth century.

The Carmelites on the other hand acquired most of the property around their two monasteries on in the nineteenth century and have subsequently sold most of it as miri lots for building purposes.

The whole issue of the existence of Christian public waqfs is confused since there was no compulsion to register those properties because ecclesiastical property was tax-exempt. Another difficulty was the resort to the expression "consecrated property" in canon law

23 A survey by the great French traveller M. Vital Cuinet shows the national character of the monasteries in the sanjak of Jerusalem at the end of the 19th century. See Vital Cuinet, gyrie, Lib an et Palestine: eographic adm inistrative, statistique, descriptive et raisonnee, (Paris: g. L ero u x , 1896), p p . k8 2k which does not concern itself with the type of registration of land*

The relative poverty of the Jews in Palestine at the end of the nineteenth century together with some unhappy feelings between the

Jewish community and the other communities were important fa cto rs in the non-creation of Jewish waqfs*^ The exceptions were some almshouses called Mishkenoth Shaanaim, that is, dwelling places for the poor founded by the American Judah Touro and su b sid ized by th e English philan­ thropist Sir Moses Montefiore^ in the nineteenth century, and some buildings at Jaffa consisting of a free hostel and synagogue founded 27 by the banker to the , Isiah Agiman, in 1820 A. D*

Because of bad feelings between the religious communities, reliance on waqf would bring them into contact with the Muslim reli­ gious authorities (an -unhappy thought under the circumstances)* Also since Jewish interest in Palestine was largely a non-Palestinian interest, control of charitable properties would not unnaturally be

^ Since 192k when the correction of registers was completed establishing the ownership of church property in the names of the rightful societies and religious orders, no new public Christian waqfs have been created. See Report by H.M. Government to the League of Nations for the administration of Palestine and trans-Jordan for the year 192HT~Colonial Paper No. 12, p. k9*

^ As the size of the Jewish Community increased in Jerusalem increased bad communal feelings resulted, leading to pressure by non- Jewish Jerusalem ites on th e Ottoman Government to ban Jewish immigra­ tion in the 19th century.

26 Hlbert M. Hyamson, P a le stin e Old and New (New York: McBride and Co., 1928), p . 92; Fanny F. Andrews, The Holy Land Under Mandate (New York: Houghton M ifflin, 1931), p. 15>. The Monteflore terms pro­ vided rent free housing for two years.

27 Samuel Tolkowsky, The Gateway to Palestine, a History of J a ffa (London: G. Routledge and Sons, L td ., 192k), pp. 72 and lj>5. in the hands of the parent societies. It is thus that the MLkveh

Yisrael Agricultural School was leased permanently from the Sultan in

18702® and the Alliance School System under French protection.2^

The many divergent view s and groups making up the Z ion ist Move­ ment ware not conducive to turning property into waqf since by this act the Rabbinate would be brought into the issue and the religious parties were competitors within the m o v e m e n t .

I I I . THE LEGAL CHARACTERISTICS OF WAQFS

The most important legal characteristic of a waqf is its inalienability which means that the property cannot be sold and ergo must be used for the purposes for which it was founded. The dictum of

Abu Yusuf Ya'qub that the appropriator's right is extinguished and the waqf becomes the property of God by virtue of it resulting to His 31 creatures is the most commonly accepted theory explaining the inalien­ ability of waqfs in the Hanefi rite of Islam.

If the raqaba (ownership) of the property made waqf no longer resided in the dedicator and the property became inalienable, then it

28 Minutes of Evidence .... 1937, 0£. cit.. p. 122.

Alliance Israelite Universelle. There was also the German Holsverein.

30 See Vlavianos and Gross, e d s ., Struggle for To-morrow: Modern Political Ideologies of the Jewish People (New York: Arts, Inc., 19^10, for a listing of the main political ideologies and factions*

31 S.G. Vesey-Fitzgerald, An Abridgement of Muhammadgn Law According to Its Various Schools TLondon: Oxford University Press. x r w i i3 ? d 7 l9 3 l) 7 p . 2062------must also be irrevocable and perpetual because the dedicator could no

longer revoke his act of dedication. On the other hand Abu Hanifa refers to waqf precisely as a loan and claims that the appropriator' s right in the property continues while only the advantage is alienated.

In order to make the waqf permanently irrevocable, the dedicator had to go through a process of attempted revocation so that the Qadi 32 could declare it judicially irrevocable.-^

The possibility of revocation must not have escaped Abu Yusuf *B

attention for.’it is much easier to forbid revocation if the raqaba resided in God than in mere man. His concept of inalienability is a

strong affirmation of individual rights regarding the ownership of

property because the dedicator's wishes were to be observed in

perpetuity.

Of all the characteristics of waqfs the characteristic of

in a lie n a b ility i s the most unsuited towards th e modern concept o f the

state where the rights of society occupy a higher place than the rights

of the individual in property law. Following this concept to its

logical conclusion, waqf cannot be condemned for a roadway or other

public use and, if the property should fall into disuse or ruin without

sufficient funds on hand for repairs, no action could be taken.

Under the circumstances, some successful attempts were made to

escape the restrictions and rigidities of the strict theory of inalien­

a b ility . These devices were c a lled h ik r , ijr a ta y n and nrnqata' waqfs. 33

32 Ibid.. p. 207.

33 Goadby and Doukhan, o£. c i t . , pp. 9 , 30, ?lu I.jratayn means a double rent and was one of the devices used to alienate waqf property while conforming to the property registration continuing to be waqf. It consisted of a double rent, one lump sum paid in itially called al-mufa! jala and an additional nominal rent paid yearly to the Mutawalli. Hikr is a variation of ijratayn differing in its provisions from area to area with the main difference depending upon whether the rent was fixed or renegotiable. Thus in fact the lessee obtained a perpetual beneficial interest which was assignable and eventually became hereditable.

Muqata1 waqf was a v a ria tio n on th e double-rent method by pro­ viding that for a sum of money or other consideration the tenant of the waqf would obtain permission to erect buildings, vines or trees on the waqf land and have these accretions as his aulk.3^

Some safeguards existed in Muslim law since the Mutawalli could not rent the property for more than three years, the lease terminated at the death of either party and the sanction of the Qadi had to be given and could be given only when the situation warranted it. It is not known when these devices came into existence but there are some references to them in the Kanun-Names of Suleiman the lawgiver.

The sim ilarity between these types of waqfs and the state which gave miri land to the cultivator with the right of reversion is obvious and did in time set up an imperium within the state.

Ib id . , pp. 83 and 296.

3^ Khadduri and Idebesny, eds., Law in the Middle East, op. c it., pp. 209-210. In the case of waqfs whose purposes were extinguished for some reason or another, the waqf did not revert to the founder or his descendants but was applied to another waqf with a similar purpose

(gins-al maqsud).

Waqfs could be acquired by sale, gift, exchange or bequest.

Although waqfs could not under any circumstances be sold, at least, prior to the year 1911, land purchased by waqfs made the property automatically waqf since the new property was juridically assimilated to the waqf. An exception is noted in the case of the non-Muslim waqfs where alienation of waqfs by sale do not occupy such a prohibited p o s itio n .37

Exchange of property known as istibdal was permissible and provided an alternative means to the sale of waqf property. It con­

sisted of the exchange of property for other property for exactly the same v a lu e .3®

The safeguard to Muslim law against istibdal was the Qadi1 s

consent to the transaction. The Mutawalli of the waqf was bound to re-invest the amount of money into land of the same value thus keeping the economy o f waqfs "land bound." In a land where commercial paper,

3^ Henri Laoust, Methodologie...... ,o£. cit., p. 126.

37 Canon law for Catholics and Orthodox allows the alienation of land in urgent necessity. The Monastery of San Simeon in Jerusalem was obtained by the Greek Orthodox Patriarchate from the Gregorian Orthodox to prevent it from falling into the hands of a non-orthodox denomination in the 17 th century.

3® Goadby and Doukhan, oj). c i t . , p . 13#. that is, stocks and bonds were relatively unknown and not very reliable, this served as a useful means to check the waqf authorities from poor investments* On the other hand, the m ultiplicity of land was not necessarily the best income which could fu lfill the purposes of the waqf when better rates of return could be had from other activities.39

The provisions for sale and exchange were so difficult to tran­ sact in matters affecting waqfs that many Sultans found it more expedient to confiscate waqfs without resorting to a change in the theory of waqf s.

It was possible to give gifts to a waqf (hiba) or a bequest

(wasiya) * Although all donations to a waqf are really gifts, the founding of a waqf is actually considered a religious duty (qurba) rather than a gift. Gift refers to financial or material donations to a waqf and in this aspect the Mutawalli is duty-bound to cany out the terms as if the gift were a pledge.

Bequests stem from w ills which prior to the Palestine Mandate could be oral or written. No w ill could be made by a minor, someone acting under duress (ikrah) or compulsion (jabr)j but an alternative method to a w ill which was acceptable at law was to acknowledge some- one as the owner of a building. An executor (wasi) appointed by the

39 Land brings a return usually not exceeding 10% of the value of the building per year^however, interest rates in Palestine exceeded 30% prior to the Palestine Mandate.

The Egyptian Ibrahim seized the Khasqi Sultan waqf in Jerusalem in 1831 A.D. and th e seizu re was continued by th e Ottomans when they regained Jerusalem in I8 I4I A.D. See Luke and Keith Roach, op. cit., pp. 37 - 38 . ^ Majalla, Articles, 1591 and 1592. deceased or by the religious judge hancUMg the estate.

Although the subject of w ills fell under the traditional subjects reserved for the religious courts of each community, nevertheless, subsidiary issues arising out of w ills made any bequests drawn in accordance with the religious law of the community very difficult to decide. The Muslim law o f inheritance and su ccession i s the most clea r U2 on the issue. It is geared to the theory that each person who is entitled to inherit should do so, while succession and inheritance can be either compulsory or optional.

The time of succession to the estate is in dispute. The Hanafi and the Maliki rites hold that it is at the moment of the last illness, whereas the Hanbali and the Shaf'i rites claim that the debts pass on

after death. The claims against the estate which had to be satisfied before any bequests could be considered were the burial expenses, previous debts, fees of succession, and inheritance fixed as of the

last sickness (marad al-mawt) because of the fear that the testator might dispose of his property to avoid his debts. ^3

Succession is of two kinds—the optional and the compulsory.

Compulsory succession (khilafa ijbariya) concerns the succession of relatives to the estate. Those relatives entitled to a definite share

of the estate are the father, mother, the daughter, the daughter of

the son, the full sister, sisters of the father or of the mother, the grandfather not separated in line by a female, the grandmother on that

^ Vesey Fitz-Gerald, o£. c it., Chapters 13, 19, 20, 21, 25 and 26. . (French edition) ^3 See ,tWasiyatt in Encyclopedia of Islam,/Vol. IV, pp. 1192- 119kj and Khadduri and Leibesny, eds., o£. c it., Chapter VI, pp. 133-177. basis and the mother's brother. A wife inherited one-fourth if there were no other heirs of the husband's body and only one-eighth if there were. The husband, on the other hand, received one-fourth of the estate if there were descendants and one-half if there were none.

Bequests are considered as optional succession (khilafa ikhtiyariya) and may consist of one-third of the estate after the debts have been paid. The testator is not allowed to w ill more than a third of the estate but it was possible to increase the size of the bequest with the consent of the heirs after his death.

These lim itations of Muslim law meant that waqfs could be created by w ill only to the extent of one-third of the net value of the estate.

In modern terms, gifts made in contemplation of death were void ab initio and any bequest which was greater than one-third of the estate was voidable at the option of the legitimate heirs.

Since waqfs have been classified as true waqfs which are dedi­ cated mulk property,and untrue waqfs which are dedicated miri property, the r ig h ts and d u ties o f waqfs were those o f th e mulk and th e m iri categories except where they were not made applicable.

The differences between the waqf and the non-waqf land lie in the issues of pre-emption and preference, mortgage, and the substitution of the Mutawalli for the original owner in certain matters affecting waqf.

Pre-emption, which is called shuf1 a, was the right given to the mulk owner to purchase the land o f h is neighbor, i f offered fo r s a le , at the same price. A similar right called haq-al-awzawiya (right of 56 preference) was given the miri owner. Waqfs could neither benefit nor lose by the application of this doctrine. The reason for this doctrine are not hard to see since the concept of inalienability protects the waqf against alienation of any kind and conversely the Mutawalli who was not th e owner could not exercise such a personal r ig h t.

Waqfs could not be pledged or mortgaged according to Muslim law on the theory that alienation in perpetuity precluded taking any actions which were liable to alienate the property if the mortgage was not redeemed.

The prohibition against mortgage was not as harsh as may at first appear since it was possible in cases where the waqf was falling into ruin without sufficient funds on hand for repairs to rent that property for more than three years with the Qadi's permission or to create a relationship of muqata* or ijratayn waqf.

The waqf had certain rights which were common to its parent category of land (mulk or miri) as well as some duties. Rules governed alluvium, water courses, wells, servitudes, minor torts, damages and limitation of actions.

Alluvium (silt that is deposited by rivers or bodies of water) belonged where it is deposited unless some damage oecured in which case the owner of land of higher value compensated the owner of land of kk lesser value. This issue was not likely to appear in Palestine since there were hardly any rivers with overflow of .silt similar to the Nile

^ Majalia, Article 902. River in Egypt.

Grass was permitted to a ll (mu&ah) but the owner was permitted to exclude persons from his land. ^ Water was also free for the use of the public, unless it had been reduced to possession with the permission of the government or consisted of a private well or artificial body of water.**6

In addition to the restrictions which may have been imposed by the waqfieh, the mulk owner had certain restrictions which he was bound » to observe. Since there is no owner in waqf affairs the Mutawalli is placed in the mulk owner's shoe3. The mulk owner in general could not | n < infringe on his neighbor's land, could not have trees hanging into the neighbor's land, could not cause excessive damage to the neighbor's landj he could lose some right of way by adverse possession to the public (not applicable to waqf), he must respect neighborhood laws,**®

(such as the avoidance of loud noises) and must not weaken the neigh- k9 bor's buildings. An unusual right given the mulk owner was the right of the harira which is a right peculiar to the Middle East although it may be construed to mean the right to light and privacy,^® and may

Ibid., Articles 12kl, 12k2 and 1257.

**6 Ibid., Articles 12 k9, 1250, 125l.

}*7 ibid. , Articles 1195, 1196, 1197.

**® Custom is the determining factor rather than "laws".

**9 Majalla, Article 1199.

£° Ibid.. Articles 1203, 120k. consist of such matters as not building a room overlooking the living quarters of the females in the neighbor's household.

The issues arising out of torts are more complex and damages differ depending on the act which was done. In the case of illegal use of seeds, small trees or building materials compensation could be made and the innocent owner could upon payment to the wrongdoer obtain the ownership to these items'’-*- or if good faith had been exercised the wrongdoer could pay th e innocent owner the price and obtain ownership if the investment in the trees exceeded the value of the land. Any- lessening of value in the land of the innocent party (nuksan arz or diminution of land) had to be compensated for. If this act was against a waqf an additional sum in the nature of a rent was exacted.

Some articles pertained specifically to waqf property. Since the possessor of waqf property was not its owner, then if he pulled down a building and misused the material, the Mutawalli was specifi­ c a lly empowered to recover the value o f the building before the damage occured.'’2 At the same time if the possessor of ijratayn waqf left the country after subleasing his building the collector of rents for the waqf was not authorized to sue and recover from the subtenant.-*-*

The lessee was not allowed to change "the ancient state of a mussaqaf waqjf," but i f a reason fo r change could be shown then a Qadi

Ibid., Article 906.

Ibid.. Article 263.

£3 Ibid., Article 267 . 59 could authorize such action .S h ou ld the Mutawalli authorize the change on hie own behalf then he was personally liable for damages.^

If the tenant of a waqf wrongfully erected a building then if the demolition of the building could not damage the land, it would be demolished; but if the demolition was harmful to the buildings and materials then the wrongful tenant was compensated and the waqf became the owner o f the building# 56 Actions to state land could not be heard after ten years, to ijratayn and muqata1 waqfs after fifteen years (the same as mulk) and actions by Mutawallis after thirty-six years.^

5k Ib id ., A r tic le 267

55I b id ., A rticle 275

56I b id ., A r tic le 77.

51I b id ., A rtic le 78. CHAPTER I I I

THE OTTOMAN REFORMS

I. WAQFS IN THE OTTOMAN EMPIRE PRIOR TO THE REFORMS

The Osraanli Turks had been converted to Islam long before they esta b lish ed th e Ottoman Empire. Being Muslims they in h erited Muslim institutions of which waqfs were an integral part.

Although the fa ll of Constantinople is said to mark the begin­ ning of the Ottoman Empire (ll*53 A.D.) some observers place the begin­ ning of the Ottoman Empire as far back as 1363 A.D. when the Byzantine

Emperor John V agreed to become a v a ssa l o f the Osmanlis.^ Even assuming that such was the case, many centuries elapsed before there developed an Ottoman-Turkish Administration, for the invading Ottomans left such administration as needed to be performed in the hands of the Muslim religious authorities in cases previously handled by them and the civ il administration of the country in the hands of non-

Ottomans, usually in the hands of the Greeks of Constantinople (the

Phanariotes)•

It has been truly said that there was an innate tendency towards toleration and indolence by the Osmanlis, reflecting itself in the continued usage of the m illet system of government which continued the e a r lie r Muslim p ra ctice o f leavin g each r e lig io u s community to

•** J.A.R. Marriott, o£. c it. , p. J>7«

^ Itid., pp. 68 - 6 9. 61 govern itself in all cases not involving state policy.

Then to o , th e Ottoman Government’s concept o f i t s r o le in the state left many functions usually performed in varying degrees by governments throughout history outside of its sphere of activity.

Functions such as the construction of roads and ferries, postal service, the promotion of agriculture and commerce, the education of the public, the adjustment of taxation and the welfare of the inhabitants in general were not the direct concern of the Ottoman state.^ The only specific functions of the government were the maintenance of public security and the collection of taxes. The latter were expended for the purpose of maintaining security and to meet the expenses of the Sultan and his entourage.

Since the role of the government was such a limited one, the administration of waqfs was a decentralized system, leaving the care of individual waqfs in the hands of the Mutawallis (trustees). Only those waqfs which were considered as royal waqfs were directly administered by the Sultan’s servants.

Prior to 1S>91 A.D. the administration of royal waqfs was under the control of the kapu aghasi (general of the gate) who was the chief eunuch of the palace. Some confusion exists as to the number of specific waqfs which he handled since there was in existence also the kizlar aghasi, the chief black eunuch, who handled other royal waqfs. It is known, however, that the kizlar aghasi was given the final authority

3 Iyhyer, oj>. c it., p. li*7. after that date.^

All moneys handled by these two ennuche did not fora part of the treasury until l6?0 A.D. when Kuprulu Zade Mastapha took the waqf funds into the treasury.-*

The administration of royal waqfs was divided into the Harameyn

Muhasebsi gjalemi, or the Bureau o f th e Holy C itie s of Mecca and Medina; the Harameyn Muqata1 Ahsi Qalemi, or the Bureau of Leases of the Holy

CSLties; and the Kuouk Bvqaf Muhasebsi Qalemi, or the smaller Bureau of the Accounts of Waqfs. Each of these departments handled some functions involving waqfs. For example, the Anatolian royal waqfs were administered by the Bureau of Leases while the accounts of pensioners, attendants of hospitals, soup kitchens, and insane asylums were kept by the smaller

Bureau of Waqfs.^

The only functions which these bureaus did not perform in the administration of the royal waqfs were the issuance of diplomas to the employees of mosques, which was considered a function of the Mallyeh

Qalemi (Chancery Department of the Treasury)^ and the registration of land which was until late in the nineteenth century a function of the

Muslim religious authorities.

There were in existence some royal waqfs in Palestine which were

k George Young, Corps des droit Ottoman, op. c it.. Vol. VI, p. 112} and A. H. Iybyer, 2eT ! £ 7 pp^25"-i26.' -----

3 Vicorate A. de la Jonquiere, o£. cit.. Vol. I, p. 271*.

^ A. H. Iybyer, op. c it., pp. 169-172. subject to the Royal Waqf Administration. The major royal waqf was the

Khasqi Sultgn waqf in Jerusalem which was established in I5il7 A.D. by

the mother of Sultan Suleiman I. Its income was substantial, amounting

in 1919 A.D. to more than L.E. 10,000* annually.

There is some dispute as to the efficiency of the Royal Waqf

Administration. Mouradgea d* Ohs son, the great observer and critic of

the Ottoman Empire, claims that the tenants of waqf lands were in a Q worse p o sitio n than nom-waqf ten an ts. Recent stu d ies o f Ottoman

firmans indicate, however, that a sizable number of firmans were issued between 1552 A.D. and 1650 A.D. concerning the royal waqfs in Palestine.

They ordered the Ottoman authorities to afford greater protection to waqf tenants, to resolve individual complaints, to repair waqf property 9 and the like. These firmans do not prove that the tenants were well treated since the greater the waqf income, the greater the tithe or rent paid by the tenant; but they do indicate that an interest was taken by the Sultans in royal waqfs while other cultivators were usually forgotten.

The b a sis o f th e le g a l system o f the Ottoman Empire concerning waqfs continued to be the Shari'a. The sources of the Shari'a are the Qur'an, which is the body of revelations given the prophet Muhammad by God through the Angel Gabriel; the Sunna. or the traditions of the life of the prophet Muhammad; the . or the sayings ascribed to

8 Mouradgea d'Ohsson, 0£. cit., Vol. II, p. 532.

? Uriel Heyd, oj>. cit., discusses these firmans in the whole book. 61* the Prophet Muharamadj Ijmaa' al Ummat, which are the deeds ascribed to the first four Caliphs of Islam (the so-called orthodox Caliphs) j and

Qiyas, which are private judgments arrived at by analogy and through the use of reason*

Law to the classically minded Muslim is the body of knowledge of the rights and duties whereby man is enabled to observe right conduct in this life in order to prepare himself to meet his creator in the hereafter*"^ Life is one and indivisible and is thus ordered by the all-embracing law as revealed by God.

This position differs considerably from the concept of man-made law since God's w ill is not subject to change. The sacred law of Islam

(the Shari1 a) has probably never been enforced as a whole although it has had a powerful influence on society. Rules which were felt to be bothersome sometimes were laid aside in favor of more enlightened practices (and sometimes less enlightened ones)

Until the medieval period in Islam (around the 13th century), the Shari? a continued to grow through the use of fiqh which were the opinions of the fuquha (singular, faqih) who were individuals well versed in the law and assisted the judges in the disposition of their cases. Muftis gradually replaced the faqihs in rendering opinions.

Then, too, of the four schools of law in Islam—the Hanafi, the Shaf'i, the Hanbali and the Maliki—custom or tradition was recognized as valid

Hanafi definition of fiqh reported in E.I.J. Rosenthal, Political Thought in Medieval Islam,(SamMjdge University Press, 193>8), p. 21.

S.G. Vesey-Fitzgerald writing in Law in the Middle East, op* c i t . , p . 109* by the Hanafi and the Maliki schools.

It was said that few people have been under the influence of 12 custom as have the Ottomans, This meant that since the observation of local customs was followed, it was more likely that they would follow the status quo rather than reform. Then, too, the very nature of ulema* perpetuated this attitude. The ulema* went through a period of training in the madrassas where they studied grammar, syntax, logic, morality, allegorical scenes, theology, jurisprudence, the Qur*an and oral tradition,^ Upon the graduation of the student (by now a soft a or sukhta), the student became a candidate (mulazim) and i f su c c e ssfu l continued his law course and became a mufti, entitled to the privileges of pronouncing opinions and issuing declarations of war when asked by the Sultan; and otherwise appointed for life but living in semi-retirement.

This rigorous system insured that only those deeply versed in the works of previous commentators were selected, so that the emphasis was on tradition rather than on independent thought.

Despite a ll the foregoing reasons which frequently operated as a “brake** on reform, some change did occur in the system of waqfs prior to the Tanzimat (Ottoman Reforms) •

The office of the Sheikh al Islam, or the chief *aUw of the

Ottoman Empire, was created by Sultan Mehmet II^ o be the chief Qadi

12 A, H. Iybyer, op. c i t , , p, 27; Mouradgea d*Ohsson, op. c i t . , v o l. in , p . i5o.

■*■3 Vicomte A. de la Jonquiere, op. cit. , Vol. H , p. £6 1 .

A.H. Iybyer, op. c i t . , p. 208. See also Ottoman, J u d ic ia l, System, pp. 2l£-2l6; ana**IsI5nic Society and the West', V6l'^' T, by Gibb and Bowen, Chapter IX on !*ulema. *• 66 as well as the chief of the religious establishment. This meant that a centralization of the religions "establishment" came about by subor­ dinating it to a chief official. All legal opinions (fatvas) were collected in the fetva-hane for future use, ensuring some loose method of codifying law.

There was a m u ltip lic a tio n o f waqfs in th e Ottoman Empire because people generally respected the institution of waqf and in general waqf property was safe from confiscatory measures initiated against a person when he fell out of the Sultan's favors. Then, too, the growth of a wealthy body of people in the Empire resident at Constantinople added to the wealth of the waqfs.

These measures did not substantially affect the waqfs in Pales­ tine since there were relatively few persons who were sufficiently 15 wealthy to endow large waqfs. The growth o f th e ta k h sissa t waqfs, however, affected the Palestine waqfs since the Ottoman Sultans were in the habit of apportioning tax revenues for the upkteep of religious and charitable institutions.

There was also a growth in the ijratayn waqfs and the Muqataa' waqfs whereby separate ownership of land and buildings was allowed or a system of double leases was followed on a long term basis * The extent of this growth is not known, but judging by the situation as found at the beginning of the Palestine Mandate, they were not very

The takhsissat waqfs formed the major source of revenue for the waqf administration. See Chapter IV for a detailed analysis. significant.

The number of waqfs administered by the Sultans seems also to

have grown since many Mutawallis were deposed for poor administration

or the positions were left vacant.

I I . PRESSURES FOR REFORM

The m illet system, leaving the actual conduct of many state

activities in the hands of the chiefs of the religious communities,

admirable as it was in an age when intolerance and religious conformity

were rampant became somewhat lik e an alb atross around th e necks o f the

Ottoman Sultans. It preserved national separatism and, in an age of

nationalism, incited the various elements of the Ottoman Eknpire to

revolt. The waqf system, which enabled the religious authorities to

handle public education, charitable institutions and the like, was an

adjunct to the m illet system perpetuating the same confessional and

national divisions.

The Ottomans found that in order to create an integrated Ottoman

Empire the power o f th e r e lig io u s a u th o r ities, whether Muslim or

Christian, had to be lessened and the nation by some measure secularized.

Whereas "modern" states were operating by secular codes of law, the

Ottoman Empire had continued to be dominated by the S h ari'a w ith much

of its administration in the hands of the religious authorities. It

The writer is indebted to Professor Kerim K. Key for this information based on information given him by Professor Hazim A tif Kuyucak o f Turkey. 68 is in this light that religion was held to be isolating the Ottoman 1 7 Empire from C hristian Europe. 1

The organization o f th e Ottoman Empire in to m ille ts had perm itted

France and Russia to gain the protection of Catholics and Orthodox in the Middle East and thus to interfere in the internal politics of the

Ottoman Enqpire.-*-® Another aspect o f the extern al pressure, which was no less important than the religious issue, was the financial situation in the Ottoman Empire.

The Ottoman Empire involved in expensive wars and unable to interest itself in sound fiscal reforms succumbed to borrowing a never- ending amount o f money from European bankers u n t il i t could be said that a financial protectorate had finally superseded the religious pro­

tecto ra te in the Ottoman E m pire.^

These financial reasons were responsible for pressures exerted by the British and French to reform waqfs. In February, 1867, the

French Cabinet and B ritish Foreign O ffice asked th e Diwan (Ottoman

Cabinet) to reform the whole system of waqfs because far too much 20 money was being lost by the state in that way.

17 E.p. Engelhardt, oj>. cit. , p. 3,

18 The struggle for the control of the Holy Places in Jerusalem which were incidentally waqfs provided the excuse for the . Many contradictory firmans were issued by the Ottoman Porte in the 18th and 19th century"|ranting the Latins and the Orthodox the Holy Places because they had1 h eld them ab antique.

19 Donald C. B la is d e ll, European F in an cial Control in th e Ottoman Empire (New Torks Columbia U n iversity P ress, 1929), Ch. IX, note 13.

20 E.P. Engelhardt, op. cit. , pp. 203 and 209* Only ijratayn waqfs were reformed. 69

Equally important were the internal reasons for reform based on th e r e a liz a tio n o f Ottoman weakness and th a t Ottoman in stitu tio n s per­ petuated these weaknesses* The statements of Sultan Mahmud that he wished to recognize Muslims at the mosques, Jews at the synagogues and

Christians at the churches, and that of Khalil Pasha that "unless the 2 1 Ottoman Empire imitated Europe, it must be resigned to revert to Asia** reflected the inner fears of thej)ttoman reformers*

I I I . THE TANZIMAT (1839-1876 A.D.)

Tanzimat is the name given to the series of reforms conducted by the Ottoman reformers between th e years 1839 and 1876 A.D. in which the functions of the state were broadened to include most, if not all, of the functions of a modern statej and the basis of the state became, in most cases, codes of law instead of the Shari'a (except for personal status and the theory of waqfs) • An ill-fated attempt was made at this time to turn the Ottoman Bnpire into a constitutional monarchy.

The period of reform ascribed to the Tanzimat is like most historical periods an arbitrary selection, for the Ottoman Reforms started at least during the yearl826 and, although slowed down during the reign of Sultan Abdul Hamid (1876-1909), did not really terminate until the end of World War I.

The Ottoman reforms f a l l in to three d is tin c t phases: those reforms prior to the succession of Sultan Abdul Hamid (ante 1876), in the reign of Saltan Abdul Hamid (1876-1909) and the Young Turk

11 IM-d., p. 2, in 1830 A.D. 70

Revolution (1909-19110. The importance of this division for waqfs lies

only in the rate of change made in the theory and administration of

waqfs.

It is perhaps significant that the Ottoman reforms started with

the destruction of the Janizaries in 1826 and the reorganization of

royal waqfs into a Ministry of Imperial Waqfs, both measures aiming at

the consolidation of Sultan Mahmud's power. Before proceeding into

the reform of waqfs, it is perhaps worthwhile to review the position

o f waqfs in th e Ottoman Empire as i t was lik e ly to a ffe c t the Ottoman

reform s.

At the beginning of the Tanzimat, the religious authorities in

the Ottoman Empire had extensive authority and functions. The basis

for their financial powers lay in their control of waqf activities and

the judicial system. All mosques, , cemeteries, madrassas

(Muslim religious schools at that time the only educational institutions

available for Muslims), imarets (food centers), z away as and takayas

(convents and hospices for the Muslim religious orders), and almost all

of the public baths, hospitals, water systems and fountains, khans,

and old-age homes were in the hands o f the waqf o f f i c i a l s .

The registration of mulk and waqf lands were equally in the hands

of the Muslim religious authorities. Miri lands were in the hands of

the state officials but a proportion of miri lands was of the so-called

imperfect waqf class and hence under the control of the waqf officials.

The determination of the right of succession to land was

decided by the provisions of the Shari'a in the case of Muslims and by 71 the rules of their communities in the case of non-Muslims.

There were no a lte r n a tiv e s present in the Ottoman Empire such as secular societies which could provide a means for participation in the state between Muslims and non-Muslims or without the participation of the waqf authorities.

The Muslim religious courts fed by waqf funds and governed by the Shari'a, which did not permit other than Muslim judges* changes in thus making the canons of inheritance and the like,/made the abrogation of the ca p itu la tio n s in the Ottoman Empire h igh ly u n lik e ly .

The whole system of waqfs and Shari'a courts was so decentralized that the central government had very little control in these affairs.

Under the circumstances, the control of waqf affairs by the central government of the Ottoman Empire and an increase in the functions per­ formed by the state at the expense of the religious authorities were likely to be attractive solutions. The non-Muslim religious authori­ ties although much less powerful than the Muslim religious authorities were an equally attractive prey.

Centraliz ation of Waqf Affairs

At the beginning of the year 1826 A.D.,only the royal waqfs were controlled by the Sultan at Constantinople, but in that year a

M inistry o f Im perial Waqfs was organized and by 1832 was upgraded to 22 cabinet status. Eight years later the Ministry of Waqfs was taken

22 There is some doubt as to the actuql date of the creation of the Ministry of Evkaf. It appears that it was not prevalent in Iraq u n til i 860 A.D. while in Palestine it appeared in 181*0 A.D* 72 out of the jurisdiction of the Sheikh al-Islam and turned into an autonomous ministry. The activity of this ministry increased steadily when M utawallis were deposed and th e mulhaqa (independent) waqfs became waqfs mazbuta or directly administered by the Ministry of Waqfs (Evkaf as it was generally known). The exceptional waqfs, that is, waqfs mustasna in reference to the Christian and Jewish waqfs, were not touched by the Ministry.

In order to facilitate affairs in the Etapire, the laws hitherto recorded at the Imperial Chancery (Divani Himayun) were now published into an official paper containing a ll laws and decrees of the Ottoman

Empire called the Takvimi Vakayi published in 1831 A.T3. (I2b7 A .H .).^

Law Reform

The Shari*a courts were bound by the provisions of the religious law which did not have adequate recognition of commercial practices and issues arising out of prohibited articles such as wine and alcohol which could not be handled by the religious authorities. Furthermore, the religious law maintained judges who were not trained in any other system of law and whose fanaticism sometimes led to the preclusion of the testimony of non-Muslims.

It was veiy difficult on the other hand to create laws which were western in origin and not to incite the opponents of the Ottoman reforms from making the charge that Islam and the Shari ’ a were being le ft by the wayside. The great Grand Vizier Reschid Pasha who was responsible

Ebuldin Mardin writing in Law in the Middle East, op. c it., p. 290. 73 for many of the early reforms was denounced as a ttGhaourB and lost his o ffic e ,^

Some business men, therefore, found it preferable to settle their disputes among themselves by arbitration or through their trade guilds.

This practice indicated that the merchants had lost faith in the Shari'a courts. The government therefore took a series of steps to remedy the situation by organizing a commercial court in 1839 A.D. Special councils to settle banking disputes and a commission to settle maritime disputes were also organized.

Despite the fact that a commercial court had been organized,

arbitration and existing laws could not provide a substitute for a clear

code or compilation of laws. Therefore in 185>0 A.D. (18 Ramadan 1266) the Ottoman Commercial Code was promulgated. I t was a somewhat poor translation of the Code du Commerce of France drawn in 1807 A.D. and

contained many p ro v isio n s not p ertin e n t to th e Ottoman Empire. This

code was amended in i860 A.D. by an appendix which regulated the con­

stitution, jurisdiction and the internal rules of the court, and, furthermore created a court of appeal. A year later a Commercial Pro­

cedure Law produced further amendments.

Much of the work for law reform was carried out by Cevdet Pasha

2U E.P. Engelhsrdt, o£. c it. , p. 1*1*} J.A.R. Marriott, The Eastern Question—an historical study in European diplomacy (Oxfordt Oxford University Press, 1925), p* 233*

^ There are a number o f volumes containing the Ottoman law s. Probably George Young, Corps de d r o it Ottoman (7 V o ls.) i s th e most exten sive. a man recommended by the Sheikh al-Islam as a scholar acceptable to the

religions authorities. Cevdet Pasha with his Committee of Justice turned

out a number of codes of law until the year 1888 A.D. when the committee

was abolished by a susp iciou s Sultan Abdul Hamid. ^

The Committee of Justice was divided at work into the Shura-i-

devlet (consultative committee) which had the duty of drafting laws and

the Divani Ahkami Adliye, (judicial committee) which decided the cases

to which western law was applicable. Among the works published as a

r e s u lt o f the work o f th is committee were the Ottoman Penal Code (28

Z ilh ijja , 127k A.H., 1858), the Ottoman Land Code (7 Ramadan, 127U A.H.,

1857), and the Ma.jalla or Ottoman Civil Code (1870-1876, 1286 A.H.-1293

A.H.).

Cevdet Pasha's work was of too short a duration to result in the

revision of the theory of waqfsj however, his efforts in the compilation

of the Ottoman Land Code and the Majalla clarified the land system and

the legal characteristics of the different types of land tenure so that waqfs in the process were also changed by "clarification."^

The Ottoman Land Code was the c o d ific a tio n o f the p r in cip les and

imperial decrees already in existence concerning land tenure. It was

designed as a reference work on the land laws o f the Ottoman Empire

26 Ebuldin Mar din writing in Law in the Middle East, op. c it.. p . 293.

2? There are a number of works on the Majalla and the Ottoman Land Code. The b e st works on the subject are C.A. Hooper on the Ma.jalla or the Civil Code of Palestine and Trans-Jordan, and R.C. Tute, P resid en t o f the Land Court o f P a le stin e , on the Ottoman Land Laws w ith Commentary (Jerusalem: 1927). 75 incorporating in the process the best of the fatwas and practices of the Shari'a.

The land Code aimed at the codification of the land laws, the reformation of the tax structure and the individual ownership of land*

Although the scope of the Code was limited to miri lands, its provisions

affected the other categories of land. The existence of a land code,

even though the Code had been based on provisions of the Shari'a and

older Ottoman kanuns, managed to create a s in g le body o f land law s.

This meant that the variations of the Maliki, Shaf'i, Hanbali, and the

Hanafi schools of law which concerned miri and miri waqf lands were now

out of the purview of the courts.

Although the Ottoman Land Code pioneered the c o d ific a tio n o f

Muslim law, i t s work l e f t many o f the p r in c ip le s o f c i v i l law in need

of revision for commercial practices. The general principles governing

contracts, sale, hire mortgages, deposits, guaranty, transfers of mulk,

partnerships and agency, misappropriations, damages, and the like were

incorporated in the Majalla.

The Majalla was published between 1870 and 1876 A.D. in install­

ments and was divided in two sections. The first part contained some

100 general principles derived from the Shari'a and designed to guide

judges into the provisions of the Shari'a. The second section dealt

with specific items involving such issues as hire and contracts which

have been previously mentioned.

After the publication of the Majalla, law reform continued even

though no codes of law affecting land appeared in the reign of Sultan 76

Abdul Hamid,

Provisions of the New Legislation Affecting Waqfs

One o f th e leading a r t ic le s of the Ottoman Land Code attempted

nQ to clarify the position of waqfs in the Ottoman Empire. It stated that mevqufe (waqf) or dedicated land was of two kinds: that which having been originally mulk was dedicated in accordance with the religions law and land which had been state land but had become dedicated. In the case of true waqfs (originally mulk) the conditions of the founder regulated the land while the legal ownership together with all the rights of possession resided in the Ministry of Waqf (Evkaf).

The article went on to state that dedicated miri consisted of such land whose imposts, taxes, rights of possession or use had been dedicated by the Sultans or others. The legal ownership of suoh land was given to the Treasury and the land was made subject to the rules of the Land Code. Provision was, however, made for the waqf authorities to receive such fees as they had in the past and the rules for transfer and succession were not made applicable for lands used by waqfs0

The subjection of dedicated miri land to the provisions of the

Land Code took such lands out of the provisions of the Shari*a and subjected them to the same provisions as ordinary miri. As a result, the holder of miri waqf was forbidden to do many things without the leave of the Sultan. He could not use the soil for the purpose of making bricks or tiles, ^ could not plant trees or vines without the

28 Ottoman Land Code, A r tic le h»

29 Ibid.. Article 12. 77 permission of the responsible government official^® (so as to prevent the unauthorized creation of quasi-mulk,) and could not erect any build­ ings on his land without official leave *3^ On the other hand, the 32 cultivator of miri waqf was authorized to prevent trespass, was pro­ tected at law from water channels and threshing floors,^3 and could demand the partition of his land from co-owners.

All minerals found on state lands (miri and miri waqf) belonged to the Treasury while the minerals on true waqf land belonged to the waqf concerned. ^ There were also many articles in the land code which defined duress, absence, minority, the rights of soldiers serving away from th e ir homes, and other communal r ig h ts .

There were two innovations concerning the sale of the miri waqf land of minors under certain conditions and new canons of inheritance for lands subject to the Land Code. The guardians of the owners of miri waqf land could sell the quasi-mulk under the so-called musavaghat conditions,^ which are usually hardship conditions, and, as quoted by

R.C. Tute, consist of the following:^

30 Ibid., Article 25.

31 Ibid., Article 31.

32 I b id ., A rticle 13.

33 Ibid., Article lH.

3H Ibid., Article 107.

y> Ibid., Article 53.

36 ottoman Land Laws with Commentary by R.C. Tute, op. c it., p. 55. 1. Wien there is a candidate to buy at double value.

2. When the minor needs maintenance and has nothing except immovable property and it is necessary to sell it for his mainte­ nance.

3. When the deceased leaves debts and there is nothing to pay them w ith except th e immovable property.

b. If 1/3 or l / k of what the deceased left is bequeathed to some object and it is necessary to sell the property in order to carry out the testator’s wishes.

5. If the income of the property is insufficient to pay the dues on i t .

6. If the property is a house or shop or similar building and the minor has no funds with which to repair it.

7. If the property is possessed in partnership and the share o f th e minor w i l l bring in p r o fits when separated,

8. If there is a fear of unavoidable interference by someone through duress.

Equal shares of inheritance were provided for both male and female heirs and the land devolved upon present heirs with provisions 37 made in case of the reappearance of the missing heir.

Many provisions of the Land Code were designed to discourage the creation of mulk lands. One article stated that no person in possession of state land (miri) could in the future dedicate his land as waqf unless it was first made mulk by the grant of a patent from the Sultan for the fu ll ownership of the land.3® This provision, in effect,

37 ottoman Land Code, Articles 5U, 56. Under the Shari'a pre­ sumption of death occurred after the passage of 90 years, that is, a life tim e .

^8 Ib id . , A r tic le 121. 19 stopped the dedication of miri lands. Another important article fore- bade burials on miri land thus preventing the creation of future waqfs simply by the burial of dead persons on such l a n d . 39 A third article forbade lands attached ab antiquo to monasteries and registered as such from being held by title deed

Registration and Transfer of Lands

Transfers of land made under duress were void as well as trans­ fers generally considered unlawful by the Shari'a (transactions called mufsid) Mortgage was still not allowed but the process of transfer and retransfer for debt known as faragh bil wafa was permitted.^

Reliance was placed on the Imams and the Mukhtars who were given the duty of issuing certificates that a person was in fact possessed of the land when the tra n sfer took p la ce. They had to c e r tify th a t the individual selling the property did indeed possess the land, describe

39 ibid.. Article 33.

k° Ibid.. Article 122.

ibid., Article 113.

^2 Some types of transfers were not permitted—that is, those not in the public interest. This was extended to mussaqafat and mustaghilat waqfs by a law of 23 Ramadan (1286 A.H. Ijratayn owned land could be sold by court judgment but had to satisfy the court that the owner could not repay in three years (Law of 15> Shawal, 1288 A.H., 1871). 80 the boundaries and location of the land, and include the sale price.

In matters of succession by inheritance the procedure was similar except that those persons entitled to succession by the Land Code were mentioned.

The Mukhtar could refuse to sign such a certificate but after noting his refusal to do so, the Imam was then authorized to sign it.

The C hristian Patriarchs and th e Haham Bashi (Grand Rabbi) were equally authorized to issue such certificates.^*k ) i Some variations occurred in the case of mulk property and guedik waqfs where the certificate had to include the number of the properties, their location, the name, address, and nationality of the owner and the proportional interest of the co-owners. I f a p a r titio n agreement had been secured, th e Mukhtar was b5 required to sign it.

The provisions fo r th e r e g is tr a tio n o f property were more elaborate: new mulk t i t l e deeds w ith th e Im perial Cypher at the head were to be issued for all mulk properties in the cities, towns, villages, and quarters (nahiehs) • From that time on the possession of mulk property without a title deed was forbidden.^

A title deed was to be given as soon as registration had been made by the chief administrative authority who was required to sen$ it

k3 Tapu Law, A r tic le 5.

Law of IQ rebi ul lakhir, 1293 A.H., Articles 2 and 3.

Law of Partition of lb Moharram, 1332 A.H., 1329 Malia, Articles 1-5.

b6 Law 0f Registration, 28 Rejeb 1291 A.H., 10 September 187b. A.D. 81 with pertinent notations to the Defter Khame with descriptions of the lo cation and boundaries of the land.^

All title deeds for mussaqafat waqfs in villages and towns where the site and the dwellings were both waqfs as well as buildings of

Chiftliks which were ijratayn waqfs were to be issued by the accountant of waqfs (muhasseb.li). On the other hand the title deeds for mussaqafat and atustaghilat waqfs attached to mustasna waqfs were to be issued by the Mutawallis,^ but a later law changed these provisions requiring the Defter Khane to issue deeds to mussaqafat, mustaghilat, mazbuta and mulhaqa waqfs except that in the last category the Mutawalli was also required to seal the deed.^7

All persons entitled to title deeds were to present their claims within six months at the Qada (but could do so at a higher \ le v e l)'-) in the presence of the mudir or the fiscal authorities. If the land became subject to the right of Tapu then it was evaluated, given to persons entitled to it or sold at public auction*

Some additional changes occured during the Tanzimat. The mug at an* waqfs were placed in the same position as state land which had vineyards and gardens. Both types of land were to be governed by the canons of inheritance for mulk property in regard to these

^7 Tapu Law, A r tic le s 3 and lb .

^8 Law of 6 Rejeb 1292 A.H., 7 August 1875 A.D., Article 1*

^9 Law of 9 Rebi ul Awal 1293 A.H., 5 April 18?6 A.D.

£0 Law o f 7 Shaban 1276 A.H., A r tic le s 9 and l6 j Tapu Law, A r tic le s 3 and 22, 82 accretions. All co-owners were given the right to partition the land but in case one of them wished to sell the land he had to offer it first to the other co-owner and receive from him a certificate of refusal before he could sell the property.^ 2

Equality between Ottoman and non-Ottoman c itiz e n s were guaran­ teed^ and the canons of inheritance governing miri property were changed a bit from the land code but s till gave preference to the male side.^*

The position of the Muslim religious authorities was also changed during this period. The first reform forced the Qadis to reduce the fees for hearing a case from 10 percent, which was the going charge, to 2% percent.^ A short while later the requirement for the registra­ tion of land stripped some real power from the religious courts. The

Shari*a courts had maintained a book on succession called the Mazbata.

The p ra ctice was th at a statement o f f il i a t i o n was drawn up by the religious authorities and presented to the Muslim courts which then issued a certificate of heirship.^ While a certificate of inheritance

S1 Law o f 7 Shaban 1276 A.H.

5% Law of 7 Shaban 1276 A.H., Article 11—restated law lU Moharram 1332 A.H.

Law of 7 Moharram 1293 A.H. However, foreigners had to renounce the protection of their governments under the capitulations which they were reluctant to do.

5h Law o f 17 Moharram 128U A.H., 21 May 1867 A.D. 55 Temperley, Bnglam&.gnd.tBd.Near East (London: Longmans, 1936). £6 Goadby and Doukhan, op. c i t . , p. 97. was s till required, actions on inheritance were no longer held at the feligious courts. On the other hand, the religious authorities con- 57 tinned to receive some fees for waqfs held in ijratein. Another change which was not of great consequence regulated forests.-’®

IV . YOUNG TURK REFORMS

The Young Turk Revolution (1908-1909) accelerated the rate of change concerning the reform of the theory and administration of waqfs.

In contrast to the reign of Sultan Abdul Hamid II who preferred to gain the good will of the religious authorities by slowing down any substan­

tial reforms in the theory of waqfs and the codification of the Shari'a while continuing the centralization and administrative reform of the

Ottoman Empire, the Young Turks proved to be more hostile to the power of the religious authorities.

The religious courts were forbidden to hear any cases in which 59 no title deed was produced but at the same time mudirs, mamurs or clerks of the Land Registry Office were given the authority to act for the Mutawalli, if absent, with regard to mussaqafat and mustaghilat waqfs.^® Religious courts were henceforth confined to actions concerning

£7 Rents to be paid to the Jabi of waqfs were 1/1000 on mussaqafat and mustaghilat waqfs held in ijratein and in the case of fees l/U of the fees. See Law of 28 Rajab 1291 A.H., 10 September 187U A.D., A r tic le s I4.—6 .

58 Forest Law 1286 A.H.

59 Law of 5 Jamadi al liwal 1331 A.H., 1329 Ahmalia, Article 1.

60 ZMsL-* A r tic le 2. 8k waqfs, w ills, guardianship, loans, succession and to suits which the parties agreed to bring before them.**1

The creation of quasi-mulk and mug at fra1 waqfs together with the long term leasing of waqf property were frowned upon by the new reformers. Owners of miri waqf lands were given the right to transfer, lease, land, mortgage, plant, and construct buildings. Rules for the disposal of such items were to be considered of the same category a .3 th e category of the land upon which they were situated. Leases on ijara wahida were not to exceed three years. The clerk of the Civil Court was authorized to draw up such leases and if the lease was affixed with a stamp, the lease remained valid after the death of the lessor and l e s s e e , ^

During the ye&rs 1910-1911* several measures were taken by the reformers to get rid of excess waqfs or those waqfs which had become uneconomical to maintain by virtue of their small size or lapsed purpose. On 2k March 1911, all imarets (food centers) were abolished by law and their beneficiaries were directly subsidized by the state.

In the same year, the Ministry of Evkaf (waqfs) was authorized to sell at public auction a ll those waqf buildings which had become in the minds of the waqf authorities superfluous and to invest the proceeds in charitable works such as schools, hospitals, and the like. Exceptions

Law of 23 Zil Qada 1332 A.H., 30 September 1330 Malia,

^ Law of Disposition, 1331 A,H., Article 5.

63 Law of Iradeh 1299 A.H. as amended 1332 A.H., Articles 7 and 17. Leases had previously terminated at the death of either party. 85 were made in the case of mosques which could not be sold.^ Another law made it possible to expropriate waqfs for public purposes thus taking away from waqfs the privileged positions they had hitherto maintained in the land system of. the Empire.6£

Perhaps the most important single act passed by the reformers concerned the passage of a law permitting the creation of charitable societies and allowing them to own immovable properties in towns and houses in villages while paying taxes and fees. This meant that an alternative method was available for charitable activities in lieu of waqfs and in lieu of the nam musta'ar (borrowed name) to which some groups had been resorting.^

The restoration of the Constitution of 1876 A.D. meant that each d is t r ic t o f the Ottoman Empire would in theory have a cou n cil o f laymen elected by the people to administer waqfs, charitable activities, and f <7 minors1 funds.

V. SUCCESS AND FAILURES OF THE OTTOMAN REFORMS

\

The Ottoman Reforms succeeded in the transform ation o f waqfs from

6k Law of 23 Zil Qada 1332 A.K., 30 September 1330 raalia.

65 Laws of 17 Nisan 1330 A.H., 7 Rabi al awall 332 A.H. and 21 Kanun Thani 1332 A.H.

66 Law of 22 Rebi ul awal 1331 A.H. (l6 February 1328 malia). This meant that Christian religious communities no longer had to place their property in Ottoman citizens' names.

67 The religious authorities formed part of the oouncils but were not in aridominant p o sitio n . In the case o f the Greek Orthodox 1 /3 o f church funds were to be ceded to the council. a decentralized system of public and private welfare, based largely on religious separatism and governed by a m ultiplicity of opinions loosely connected in a rigid system of law, into a government activity at first in the hands of the religious authorities acting on behalf of the government and shortly thereafter into a specific ministry of the central government.

This centralization of waqf affairs added power and prestige to the central government but at the same time made it largely responsible for the shortcomings of the waqf system at a time when functions such as public education, hitherto a religious function, came to be con- 68 sidered a duty of the state.

Had this met with little opposition, the transformation might have been su c c e ssfu l and have helped to meet the goals o f the Ottoman

Reforms; however, the centralization of waqf affairs did not result materially in any benefits for Palestine, for the Ministry of Waqfs collected the rents and gave no accounting thereof.

Although waqf funds were to be spent theoretically on each waqf in accordance with the income derived from its rents and tithes, yet in practice no large scale building activity had occured, and since I8 I4I

A.D. the Khasqi Sultan Waqf funds in Jerusalem were entirely confis­ cated. Indeed, many buildings were occupied by the government without any income being given to the waqf authorities.^

In l81|5 A.D., public education became a function of the state and the Porte considered diverting waqf funds into school and health activities with no success.

69 The Khasqi Sultan Waqf was first confiscated by the Egyptian Ibrahim Pasha but was not returned by the Ottomans. The courts and very often the seraglio were in waqf buildings. The funds derived from the waqfs of the Ottoman Empire were not entirely wasted by the Ottoman government. At first these funds were considered an easy way to balance the budget but later were used to start new enterprises. Indeed, a railroad was started from contribu­ tions and from waqf funds which stretched the point of having waqfs only in the nature o f immovable property. 70

A partial listing of institutions helped by waqf funds included

Istanbul University, health societies, and the like. With the proceeds of the sale of superfluous waqf buildings and disused cemeteries, many activities such as the ferry service at Constantinople and new office buildings were erected or improved. Judging by the activities of the

Ministry of Waqfs one can conclude that although the capital of the

Empire gained by this action, the provinces showed no appreciable gain in this respect.

By the beginning o f the f i r s t World War only mulk could be created waqf j the land was required to be registered with the government and civil courts took care of many of the functions previously dealt with by the r e lig io u s courts. At the same tim e, th e le g a l and adm inistrative reforms had clarified the categories of land and many of their legal characteristics.

Many of these reforms were, however, dead letters. Although the

70 The Hejaz Railroad launched by Sultan Abdul Hamid II as an adjunct to the Berlin-Baghdad Railway. The railway was largely blown up in World War I by T.E. Lawrence and a sso cia tes but se ctio n s o f i t continue to be used. 88

registration of land in theory was obligatory, hasty registrations rery

often gave individuals undeserved lands, the lack of a cadastral survey

precluded any clear delineation of boundaries, and faulty valuations

did not reflect the true value of the property.

The secularization of most state functions together with a

guarantee of equality permitted non-Sunni Muslim participation in the

state at the highest levels.of government but these changes very often

left the same old antagonistic and beys in charge of government

activities without any corresponding change in their attitude toward

the reforms. As a result many things could be done without the 71 knowledge of the central government.'

The T u rk ifica tio n o f the Ottoman Empire together w ith the

increase of wars in the Balkans directed the attention of the central

government away from the reforms and left little energy for their

implementation.

Far too little time had elapsed between the assumption of power

by the Young Ttirk reform ers and th e beginning o f the f i r s t World War

to permit any major changes. Many of these reforms had been passed

a scant three years prior to the outbreak of hostilities and "remained

on the books." Those areas pertaining to the religious laws were

sensitive issues and little was done about them even to the implementa­ tion of the charitable councils contemplated by the Constitution,7^

71 E.P. Engelhardt, o£. cit., pp. 2k2-2b0>} Temper ley, op. cit., p. 239.

72 it Was easy and very often fatal to be denounced as a Ghaour. Some councils were created but these did not reflect the popular w ill since they were dominated by the waqf officials and the muftis both of whom were government employees. D espite a l l th ese d efects in th e Ottoman Reforms, th e fa c t remains th at the Ottoman Empire had taken a gian t step in th e d irectio n of the •’modern" state it had set out to do prior to the first World War.

It remained for subsequent regimes and generations in Palestine and elsewhere to complete and bring to fruition those reforms. CHAPTER IV

THE PALESTINE REFORMS

I . INITIAL ADMINISTRATION OF WAQF AFFAIRS

Great Britain’s entry into the arena of Palestine as a governing power came in the fa ll of 1916 A.D. and was fully established after the total collapse of Turkish forces in October 1918.^

Turkish possession of Palestine during the first World War as a part o f the Ottoman Empire together w ith str a te g ic reasons fo r the protection of the British-held Suez Canal in Egypt necessitated the occupation of Palestine by British forces quite apart from any future plans for the political disposition of that area.

Although the ultimate responsibility for Palestine and Trans -

Jordan rested in the hands of the British Foreign Office, the members of the Egyptian Expeditionary Force were responsible for the adminis­ tration of the area which they occupied.

A temporary m ilitary administration known as OETA-South

(Occupied enemy territory administration-south) was established for

Palestine under the officers who had composed the Egyptian Expeditionary

Force. There were serious limitations on the power of this administra­ tion some of which emanated from the nature of the administration and

Allied troops were commanded by General Sir Edmund Allenby later Viscount Allenby. The Turkish troops tried in Project Yilderim (lightning) to have a break through but were unsuccessful. See Djemal Pasha, Memoirs of a Turkish Statesman, 1913-1919 (New Yorks 1922). 91 some from local conditions. The staff of the military government was composed of soldiers with little taste or training for civilian-type jobs. They envisaged their job only in terms of governing the area in conformity w ith the Hague Conventions and with as few changes as 2 p o ss ib le .

These circumstances dictated caution in the handling of waqf affairs and accordingly a ll waqf activities were placed in the hands of a committee composed of the Mufti, the local waqf officials and some notables. It was called the General Waqf Committee, perhaps out of past British experience with Egyptian waqfs, and its nature entitled it to handle all activities and issues arising out of waqfs.

The Shari’a courts had during the f i r s t World War passed from the jurisdiction of the Sheikh al-Islam to the jurisdiction of the

Minister of Justice, but no significant changes had occured. Similarly, under OETA the senior judicial officer after consulting the Muslim members of the Court of Appeal and the inspectors of the Shari’a

courts appointed the Qadis who continued to sit in the same towns and cities and were independent except for the inspections of the legal department’s Muslim inspectors.

The only s ig n ific a n t change in the composition o f the Muslim religious courts was that a Court of Appeal composed of three Ulema

2 Inform ation on OETA comes from various memoirs o f B ritish officers in the military administration. The best account is Sir Ronald Storrs, Orientations. (London: Nicholson & Watson, 1937).

3 Memo 2H o f Memoranda, o£. c i t . , 1937, p. 9hf and Report on Palestine Administration, 1922, p. 20. 92 under the presidency of the Grand M ufti o f Jerusalem (Kamel al-H u ssein i) was created as a substitute for the previous practice of appealing to the office of the Sheikh al-Islara in Constantinople,^

Although Ottoman Law had provided for elected councils to administer waqf and minors' affairs, there had been a radical difference between theory and practice for the local waqf officials continued to administer the waqfs in accordance with their instructions from

Constantinople, The institution of a General Waqf Committee with powers over the whole of Palestine was in sharp contrast to the prac­ tic e o f the Ottoman Empire and could not but r e s u lt in an in crease of the Mufti's stature. This development^however;did not upset the

British authorities because the existing Mufti was well liked by them.

Once the military hostilities had terminated, a difference arose between the Arab inhabitants (or a vocal portion thereof) and the British authorities. In January 1919 an All-Arab Palestine

Conference demanded the repudiation of the promise concerning the establishment of a Jewish national home, the rejection of the French claim to Syria and the establishment of a united Syria,"’ This con­ ference was followed by some riots during the Nabi Musa festival on

April U, 1920, instigated, as it was commonly thought, by Haj Amin al-H usseini and led by h is u n cle, Musa Kazim Pasha a l-H u ssein i,

^ Churchill, Sir Winston S., The Aftermath (London: Scribner and Sons, Co., 1929), Appendix, p, U5l7

^ Esco Foundation for Palestine, Palestine—a Study of Jewish, Arab and British Policies (New Haven, Conn.: Yale tJniversitv Press. I9ll7), Vol. I, p.TtfS; 93

British response to the riots was the expulsion of Musa Kazim

Pasha as mayor of Jerusalem and his replacement by Raghib Bey

Nashashibi, a member of a rival Jerusalemite Muslim family. Haj Amin found himself a refugee in Trans-Jordan with a wan'ant for his arrest.

The issue of the Jewish national home was such a prominent item on the political menu that it was felt that some concessions on waqf affairs would sop feelings. Furthermore, the death of Kamel

Bffendi al-Husseini, the Grand Wftfti of Jerusalem, in February 1921 left the Husseini clan highly vocal but without any important office t o th e ir name.

Instead of being defeated by these developments these acts spurred the Husseini clan on to the capture of the important office of the third Palestine Arab Congress in which Musa Kazim was elected

P resid en t and P resid en t o f the Arab Executive and h is nephew, Jamal £ al-Husseini, was elected Secretary. Such positions, stripped of any responsibility in the government, left the clan without "any spoils" and was to play a big part in the subsequent creation of the new waqf council and the election of Haj Amin al-Husseini as Grand

M ufti.

In March 1921, the P a lestin e Government proposed th at an elected committee of Muslims be created to manage Muslim religious affairs, supervise the waqfs, nominate and dismiss the Shari’a (Sadis 7 and appoint the Muftis. Although not directly specified in the

6 S i ! * 5 P- ^76.

7 This order was not published until 1$ May 1921. proposal, the committee would presumably have had the power to appoint all lesser officials.

The government proposed, however, to retain a veto power over the appointment of the muftis, the appointment and dismissal of the

Qadis and the approval of waqf budgets. In addition, the waqf com­ mittee did not have any discretion over the Shari’a courts beyond the appointment and dismissal of the judges; could make no loans without government consent and no delegation of legislative power was 8 to be construed from the grant of these powers to the committee.

This proposal would in effect have created an elected committee technically in charge of Muslim affairs but which could be turned easily into an advisory committee because of the retention of a veto power by the government. Under the circumstances, an Arab delegation to London complained that the P a lestin e Government was in te r fe r in g with waqfs. At the same time a Muslim conference had apparently quite independently of the delegation suggested changes to the High

Commissioner,^ which were subsequently adopted In the order of 20

December 1921.

S ir Herbert Samuel in h is memoirs denies th a t the Supreme

Moslem Council created by th e order o f 20 December 1921 came only as a r e s u lt o f strong Muslim rep resen ta tio n ^ and a sse r ts th a t he "did

8 Memo No. 2k of Memorandum prepared for Royal (Peel) Commission 1937, p. 9h» See also Fanny F. Andrews, o£. cit., Vol II, pp. 190-191,

^ P h ilip Graves, P a lestin e th e Land o f the Three F a ith s (Londons J. Cape, 1923), p . 112.

10 Sir Herbert Samuel, Grooves of Change (London, Indianapolis, New Yorks Bobbs-M errill C o., 191*6), p. 20l*. not consider it advisable to control Muslim affairs in view of the 11 national home idea." It seems probable that the first order was influenced by th e hopes o f p a cify in g the Muslim community w hile th e against final order was influenced by Arab protests jkt the small powers contem­

plated for the elected Muslim waqf committee.

I I . THE CONSTITUTION OF THE SUPREME MOSLEM (SHARI»A) COUNCIL

Throughout most of the life of the Palestine government waqf a ffa ir s were handled by th e Supreme Moslem (S h a ri1 a) Council, the body created by the Order of 20 December 1921. Under this order, the Supreme

Moslem (Shari’a) Council was to consist of elected members placed in office through an electoral college and to have committees in addition to the Council and to control the Shari*a courts.

The Supreme Moslem Council was to c o n sist of four members and the Ra'is al-Ulama: two of the members coming from the sanjak of

Jerusalem, one from the qada (district) of Nablus and one from the qada of Acre. No person could be a member of the Council if he were receiving a salary from the government in another capacity. (Exceptions were made for mudarissin and mu*allims, that is, religious and lay teachers). The election to the Council was to be conducted through the

Electoral College made up of the secondary electors to the last Ottoman

Parliament^ however, the election of the president of the Council who was also the Ra’is al-Ulama, was to be governed by a special law which

11 Fanny F. Andrews, o£. cit. . Vol. II, p. 12f>. 96 never came into effect.

Lest the elections be fraudulent, a commission of inspection was to be created composed of the members of the Electoral College as well as six other persons from each qada. (Jnraiaipaliicotupoiliies where they existed were ex-officio members of the commission of inspection).

The Council was given fairly wide powers. It was, inter alia, to have the following powers:

1. Control, supervision and administration of waqfs.

2. Appointment of the Shari'a Judges and the administration of the courts.

- 3. Appointment of all muftis with the exception of the muftis in the Beersheba area where the appointments were to be made by the Sheikhs of the tribes.

H. Appointment o f a l l ma’mours and mudirs of waqf s.

5>. Control of all waqf officials.

6 . Dismissal of waqf and other officials.

7. Inquiry into waqf claims.

The Electoral College which was charged with the election of the members o f the Supreme Moslem Council was to be composed of th e members o f th e la s t E lectoral C ollege to the Ottoman Parliam ent. Each member was to be no less than 2$ years of age, male, and with slight property qualifications.12

One-third of the College had the right to call meetings through the President and two-thirds of the members could dismiss a member of

1 2 See a lso Report by His B ritannic M ajesty’s Government to the Council of the League of Nations on the Administration of Palestine and Trans-Jordan for the year 192l*> Colonial Paper, No. 12, p. 26. 97 the Council and approve supplements and amendments which could be initiated in the Council.

The Supreme Moslem Council was supposed to consist of a General 13 Waqf Committee and lo c a l committees in addition to i t s regular members.

The General Waqf Committee had as i t s members the Grand Mufti and th e local waqf administrators, while the local committees were made up of the lo c a l m u ftis, the ma'mours o f waqfs and two Muslim notables fo r each committee appointed for a two-year term. The function of the

General Waqf Committee was to prepare the budgets of the waqfs while the local committees were to supervise the administration of waqfs and the appointment of local waqf officials.

The Mufti o f Jerusalem (Grand Mufti) had been in Ottoman days the senior religious figure in the sanjak of Jerusalem and had been in charge of the Haram al-Sharif compound thus adding to his prestige, so that in an election he was likely to be considered the Ra’is al-Ulama*

(The President of the Supreme Moslem Council was to be, as previously stated, the Ra'is al-Uluma).

When the office of the Grand Mufti had become vacant after the incumbent, Kemal effendi Husseini, had died, the Grand Mufti was to be chosen from the ranks o f the ’Ulama by an Assembly composed o f the ’Ulama lk and other Muslim n otab les, in accordance w ith Ottoman precedent*

^ Report by His Britannic Majesty's Government to the Council of the League of Nations for the administration of Palestine and Trans- Jordan for tjie year 1926, Colonial Paper No. 26, p. 100. See also Andrews, oj>. c it., pp. 190-191*

Esco Foundation for Palestine, oj>. cit., Vol. I, p. U67. A conclave was duly gathered at Jerusalem under the auspices of the mayor, Raghib Nashashibi. The Husseini clan's nominee, Haj Amin al-Husseini, placed fourth on the ballot. Some observers thought that he scored poorly because he was not regarded as a competent scholar; l£ others thought that the meeting had been dominated by Raghib Nashashibi.

The two th eo ries are not m utually ex clu siv e sin ce Haj Amin, bom in 1895 , was barely 26 years of age and, judging by the customs and standards of the Middle East, somewhat young for the position. Then, too, Raghib Nashashibi as mayor of Jerusalem was in a position to exercise a lot of influence.

Despite the fact that Haj Amin was considered an ardent nationalist and was relatively young, the third nominee was persuaded by the Pales­ tin e government to withdraw so th a t Haj Amin became th e th ird on the ballot and was thus eligible for selection by the government for the position of Mufti and thus Ra'is al- 1 Ulam a.^

There were some b u ilt - in advantages and disadvantages to the creation o f the Supreme Moslem Council and th e e le c tio n o f Haj Amin as M ufti.

Some changes had occured which were beyond the control of the

Palestine government. Even though the mufti's influence had been great

Ib id .

16 Turkish practice was for the conclave to submit three names to the government which selected and appointed one of them. It was widely thought at the time that Sir Herbert Samuel was trying to be impartial in giving the muftiship to the Husseinis since the Nashashibis had the mayoralty. Sir Humphrey Bowman, Middle East Window (London, New York: Longmans Green and Co., 19^2), p. 287. 99 under the Ottoman Empire, the Muslim character of the higher officials in the government, their appointment directly from Constantinople, and the limitation of the mufti’s jurisdiction to his own sanjalf, actually limited his powers. Important Muslim families in Palestine had very 17 often semi-hereditaiy positions as custodians of shrines and mosques.

Previously, there had been the advantage of having all these family and jurisdictional squabbles settled by the Sheikh al-Islam’s office which was far removed from local intrigues and passions. Then, too, there were nine dervish orders with members in Palestine and elsewhere which transcended national boundaries and exercised some measure of 1 fl influence on the population.

Although in theory the Electoral College was to be the body essentially in control of waqfs as a quasi-legislature with powers of impeachment, the nomination of members to the Supreme Moslem Council and powers of inspection, the restriction of membership in the college

^ Frederick Jones Bliss, The Religions of Modem Sjyria and Palestine (New York: C. Scribner’s Sons, 1912), 2^8. The Alama family controlled the Khanqi Mosque in Jerusalem; similarly, the Husseini family controlled the Nabi Musa near Jericho, the Dajani family the Nabi Daoud Zawiya, and the Khalidi family were Muslim religious officials. The single exception was the Nashashibi family who supplied government officials to the Ottoman government and was the largest clan in the Jerusalem area.

Ibid. , pp. 23H-236. The following dervish orders were estab­ lished in Palestine: The Qadiriyas established by Abdul Qadir al- Keilani who died in 1165 A.D. This order is also called Tariq al-Usulj the Rifa’iya was established by Ahmad al R ifa'i who died at Basra in 1182 A.D.; the Badawaya order was established by Ahmad al Badawi who died at Tantah Egypt in 1276 A.D. j the Dusuqiya was established by Ibrahim al Dusuqi who died in Dusuq Egypt in 1278 A.D.; the Saasiya was established by Saad al Din al Jabawi who died at Jaba1 in 1335 A.D. 100 to the electors of the last Ottoman Parliament meant that actually only persons who had voted in 1909 A.D. were really represented. Females were "naturally" excluded and the fact that changes had occured in the twelve years since the last election in community life and structure went unheeded.

The constitution of the Electoral College, however, did have the advantage of being able to meet quickly in order to f ill the time gap between the announcement by the Palestine government of the measures for the control of Muslim affairs and the actual creation of these measures. Had this been used only as a stop gap measure the discrepancy in under-representation may have been understandable but the composition of the council, with two members and the Ra'is al-'Uluma from the

Jerusalem area, meant the perpetual domination of waqf affairs by a non-representative group of Jerusalemites who were not even represent­ ing their own district.

The grant o f such wide powers to th e Supreme Moslem Council 19 eventually came to be recognized as a mistake, while the position of the Mufti coming from a Jerusalem family, calling the Electoral College when he saw f i t , s it t in g on th e General Waqf Committee which had a strangle hold on waqfs through their budgets, and appointing all lesser muftis who sat on the local waqf committees, made the Mufti into a very important political figure.

The High Commissioner, S ir John Chancellor agreed w ith Lt. Col. Frederick H, Kisch that the wide grant of power to the Supreme Moslem Council was a m istake. See Frederick H. K isch, P a le stin e Diary (London: G ollanez, 1938), p . 263. 101

The status of the religious courts was kept intact with only- minor changes. The intention of the Palestine Order-in-Council of

1922 was to leave as much autonomy as was co n sisten t with the Mandate

in the Shari*a courts regarding all matters of a personal or religious

nature concerning Muslims. Muslim religious courts were given exclusive

jurisdiction in matters of persbnal status regarding Muslims, (such as

w ills, succossion, marriage, divorce and legacies) and equally exclusive

jurisdiction over the constitution and internal administration of waqfs

which had been constituted before the Muslim religious courts for the 20 benefit of Muslims. The Qadis continued to deal in the same way with such m atters

as they handled previously except that whereas they had had the

authority to effect istibdal and ijrateyn. under the Order-in-Council

o f 1922 they could only agree to such matters after the unanimous

consent o f th e Supreme Moslem C ouncil. The courts were thus r e str ic te d

to the idara of waqfs rather than the towliat.

A few changes in the course of the mandate affected the juris­

diction of these courts. Where land had been claimed as waqf and the

issue was denied, it became a matter for the civil rather than the

religious court to decide. The law stated that "every action or

other proceeding concerning the ownership or possession of immovable

property shall be decided by a civil court notwithstanding any claim 21 by any party or person that the land is waqf."

20 Order-in-Council, 1922, Articles 5l and 52.

21 Jurisdiction of Civil and Religious Courts Ordinance, 1925. 103

I I I . ACTIVITIES OF THE SUPREME MOSLEM COUNCIL

There were the usual tasks concerning waqf councils facing the

Supreme Moslem Council, such as the maintenance and subsidy of cemeteries and religious institutions, and other tasks which were not so usual.

One of the most important tasks facing the council was the restoration of the Harara al-Sharif compound consisting of the famous

Dome of the Rock and the Al-Aqsa mosque. This work was extremely difficult because of the presence of mosaics which had to be carefully restored and because the old age of the buildings made reparations somewhat hazardous and d i f f i c u l t .

A very promising architect, Kamel al-Din Bey, who had had extensive experience in Turkey was hired to work on the restoration of the Haram al-Sharif. In order to raise funds, the Grand Mufti, with the permission of the High Commissioner, charged an admission price to visitors touring the compound outside of the hours of prayer and undertook several tours of countries in the Middle East to collect more funds. ^

These tours began in 1927 when he headed a delegation to Iraq,

26 Charles R. Ashbee, A Palestine Notebook. 1918-1923 (Garden City, New York: Doubleday, Page and Co., 1923), p. 237, mentions that Mr. Ernest Richmond the Director of Antiquities co-operated with the religious authorities on the restoration.

27 Two shaikhs complained to Col. F.N. Kisch because the pro­ cedure of charging admission made them lose their customary bakhsheesh, an ancient and honorable custom enabling guides and minor officials to make a decent living. See Kisch, op. cit., p. 117. 101+ 0 Q Kuwait, and Bahrein to collect funds for the repair of 11 Aqsa mosque

and continued until 1936. More than LP 100,000 were finally collected

from this undertaking*^ and soon thereafter a section of the Arabic

Press set up the inevitable cry of nepotism and mismanagementf u n of d s ; 30

however, an Egyptian delegation headed by a prominent Egyptian, Hassan

Sabri Bey, investigated the matter and found no such evidence.^-

It was quite apparent to the Supreme Moslem Council that re li­

gious instruction was inadequate in Palestine to prepare individuals

for religious posts. Such madrassas as had existed during the Ottoman

period were physically inadequate. Therefore, one of the achievements

of the Council was the establishment at Jerusalem (in the Haram Com­

pound) a school of theological learning simply called the Theological

College. The aim of the school was to train mudarissin, imams and

qadis and the staff of only twelve was certainly modest enough. ^

Two other smaller schools at Hebron and Acre supplemented the activi­

ties of the Jerusalem school.

The establishment of the Theological College obviated the

necessity for sending students abroad, except in the case of muftis

28 Beatrice Erskine, o£. cit. , p. 162.

^ Norman de M. Bentwich, England in Palestine (New York: Praeger, I960), p. 76 .

30 Report of the Commission for Palestine on the Disturbances of August 1929, Command Paper 3530, p. ill.

3^ Kisch, op. cit., p. 109. The before and after pictures of the Haram al-Sharif canTbe seen by comparing the Official Guide Book published by the Supreme Moslem Council and Sven Anders Hedin, Jerusalem von Sven Anders (Leipzig; F.A. Brockhaus, 1918).

32 Report for the Year 192I+, Colonial Paper No. 17, Appendix. io5 who continued to be trained principally at Al-Azhar University at Cairo.

The position of Jerusalem in the history of Islam did not escape the Council’s attention and, accordingly, efforts were made for the establishm ent o f a Muslim u n iv e r sity a t Jerusalem. The Grand Mufti was instrumental in having the Islamic Congress held at Jerusalem in

1931 to recommend among other things the establishment of the Muslim

University of Jerusalem. This decision was followed by a tour of Iraq,

India (then including Pakistan), Afghanistan, Baluchistan, and Iran to collect funds for the University. ^3

It is perhaps significant that the appeal to the Muslim world was not entirely successful and that the whole idea of a Muslim university was not really pursued until after the establishment of the

Hebrew University and Hadassa Hospital on Mt. Scopus in Jerusalem, so oji that the religious appeal was mixed with the political,.

Several useful institutions were opened in addition to the theo­ logical schools. Among the first was a library of ancient documents located at Jaffa, ^ after which came the founding of a museum in the

33 Beatrice Erskine, o£. cit., p. 162. Also Report by His Britannic Majesty's Government to the Council of the League of Nations on the Administration of Palestine and Trans-Jordan for the year 1933, C olonial Paper No. 9k, p. 17•

3k Although the Hebrew University was established at the termi­ nation of World War I, yet building activities did not really start in a su b stan tial manner u n til th e m id-1920's. The h ig h est donation fo r the Muslim U niversity came from the Nizam o f Hyderabad who promised LP 7,5k3. 35 Opened in 1923* See Report by His Britannic Majesty's Govern­ ment on the Palestine Administration, 1922, Colonial Paper No. 5, p» 25. 106

Haram area^^ and the opening of some ten schools and a Muslim orphanage during the l i f e o f the Supreme Moslem C o u n c i l , 37

Actually, the Muslim Orphanage and the Theological College were opened at the start of the operations of the Supreme Moslem Council, followed by the opening of two schools (one of which was for girls) as early as 1925^® and the assumption of control over the bankrupt Najah

School at Nablus in 1928 .3?

There exists a wide misconception about the number of schools which were supported by waqf funds. One source claims the number to be more than 9k but a c tu a lly no more than 2lj schools received subsidies from the waqfs at any time and all in all represented a small amount of the waqf budget, k® The confusion is apparently caused by counting a l l kutab sch ools as waqf sch o o ls. The amount spent on education included a subsidy to Rawdat al Ma'arif so that the Supreme Moslem

Council ran the only Muslim secondary schools prior to the establish­ ment of government and private secondary schools, (The secondary

36 Report by His B ritannic M ajesty's Government to the Council of the League of Nations on the Administration of Palestine and Trans- Jordan for the year 1926, Colonial Paper No, 26, p, 61+,

37 Beatrice Erskine, oj). c it., p, 160,

38 Report by His B ritannic M ajesty's Government in the United Kingdom o f Great B rita in and Northern Ireland to th e Council o f the League of Nations on the Administration of Palestine and Trans-Jordan for the year 1925, Colonial Paper No. 20, p. 28,

39 Report by His B ritannic M ajesty's Government to the Council of the League of Nations on the Administration of Palestine and Trans- Jordan for the year 1928, Colonial Paper No. JtO, p. 5l*

k0 S ir Humphrey E. Bowman, o£. c i t . , p. 309* 107 schools were Rawdat al-Ma’a r if and the Najah sch o o l),^ *

The Supreme Moslem Council showed itse lf willing on occasions -o cooperate with the government or the Zionist Executive when political considerations did not dictate otherwise. It cooperated with the

Department of Antiquities to collect implements of life for the Pales­ tine Museum,^ and with the Zionist Executive for the establishment of Mg the Palestine Board of Education and a Mixed Advisory Council. ^

The most important and lucrative example was the project to drain waqf lands which resulted in the eradication of malaria and the improvement of the finances of the Supreme Moslem Council, These lands were called Wadi Musrare and Wadi Rubin which were, in effect, swamps near Nathanya and practically worthless. The Palestine government was interested as part of its anti-malaria eradication scheme to drain the marshes. The Supreme Moslem Council agreed to cooperate and by 1928

Wadi Rubin was completely drained and a large portion suitable for

^ A Kutab school i s sim ilar to a Sunday school where the children are taught the Qu'ran and manage in the process to learn some reading and writing. Although indirectly supported by waqfs since they used the mosques and religious instructors, the Palestine govern­ ment never considered them waqf schools. The enrollment of these schools was some $6hk pupils. See Harry Viteles and Khalil Totah, Palestine; A Decade of Development (Philadelphia: American Academy of Political""and Social Sciences, 1932.

^ Report by His Britannic Majesty’s Government to the Council of the League of Nations on the Administration of Palestine and Trans- Jordan for the year 1926, Colonial Paper No. 26, p. 61*,

k3 Mr, Abd a l Jaba', a member of th e Supreme Moslem Council worked with Dr. Lurie of the Jewish Agency to establish the Board of Education and the Mixed Advisory Council* 108 for orange growing came into existence.^ The whole area was expanded in 1935 when it was found that Birkat Ramadan (the two wadis pins some other land) also known as Bassnm al-Araq was part of the waqf of Khalil al-Rnhman (Hebron). The t o t a l area was reclaim ed a t a co st o f IP 18,000 or LP h for each of the H,500 dunums.^

Among the more rou tin e a c t iv it ie s o f the Supreme Moslem Council were the reparations of buildings and mosques. There were over 300 waqf buildings repaired and 22k new buildings built, also there were

313 mosques repaired, 21 newly built and 3 minarets constructed.^

Sizeable numbers o f tr e e s were planted on waqf lands, and some welfare activities were undertaken in providing funds for midwives to study, sending students abroad to uni/ersities, and conducting some medical facilities at Jerusalem.

^ Report by His Britannic Majesty's Government to the Council of the League of Nations on the Administration of Palestine and Trans- Jordan for the year 1926, Colonial Paper No. 26, p. 36} Ibid for 1928, C olonial Paper No. U0, p. 57.

^ The number of dunums is given in Palestine Royal Commission Report (Peel Report), Command No. 5U79, 1937, p. 256; M.F. Abcarius, Palestine through the Fog of Propaganda (London: Hutchinson, 19M>), p. 119, claims that in itially the estimated cost was IP 10,009-LP 11,000 for the whole area with Jewish interests paying LP 6,000 and the Council paying LP H,500. Eventually the Council obtained U, 500 dunums and Jewish interests obtained 5,200 dunums, rented for a 99-year period. Mir. Abcarius cites it as another betrayal of the Arabs by the Palestine government but his criticism appears unjustified since the Jewish group paid their sum in advance while the Council paid its share over a ten-year period.

^ Report by His Britannic Majesty's Government to the Council of the League of Nations on the Administration of Palestine and Trans- Jordan for the year 1936, Colonial Paper No. 129, p. 1*2. 109

IV . THE REFORM OF THE SUPREME MOSLEM COUNCIL

As could be expected, much criticism was levelled at the Supreme

Moslem Council some o f which was ju s tifie d and some o f which r e su lte d

from ignorance or prejudice.

The Supreme Moslem Council was p eren n ially challenged fo r the

composition of its membership. The election in 1922 of Haj Amin

al-Husseini as Grand Mufti and President of the Supreme Moslem Council

s p lit the Muslim community in to m a jlissin and m u'aridin^ sin ce h is

election was more the result of the Palestine government’s wish to

have a Husseini in an important position rather than the w ill of the

Muslim community.

Then, too, the elections of 1925 were annulled by the Supreme

Court of Palestine for irregularities in the Electoral College^® and

the Council was nominated instead by the government. The circumstances

of the first election, narrow as it was in the electorate, and the

second one being annulled, could not help but come to the attention

of the League of Nations, which repeatedly criticized the non-democratic

formation of the C o u n c i l . ^9

More serious were the criticisms of some of the political parties

U7 Esco Foundation for Palestine, op. cit. , Vol. I, p. b.68 .

^ Report by His Britannin M ajesty’s Government in the United Kingdom of Great Britain and Northern Ireland to the Council of the League of Nations on the Administration of Palestine and Trans-Jordan for the year 1925, Colonial Paper No. 20, p. 28.

^9 Permanent Mandates Commission—Minutes of the 29th Session, 1936, P . lb B . 110 in Palestine, especially the Nablus Peasant Party and the Hebron Peasant

Party who asked the government inter alia, for long term loans and the extension of the maturity of debts. They further attacked the Christian-

Muslim societies and the Arab Executive for neglecting practical economic questions and demanded more roads, l e s s ta x e s, more education, and agricultural cooperation with the Zionists. The specific charges against the Supreme Moslem Council were that waqf income should not be squandered and that it should be spent for both urban and rural areas. The impli­ cation of their statements was that the rural areas were being neglected 50 both by the government and by the waqf administration.

Their criticism with regard to waqfs was somewhat justified because more attention was given to city mosques because of their size, the administration of waqfs was concentrated in the cities and the schools which were needed very badly in the rural areas were located instead in the towns. Although the Arab population of Palestine was predominantly rural, the cities were relatively much more advanced in health, education and welfare activities. However, waqf buildings had existed for centuries prior to the creation of Palestine and the cities had served as centers for the rural areas in the past, so that this state of affairs was not entirely the fault of the Supreme Moslem

Council.

A charge of a different sort was levied at the Council by three

See K isch, o£. c i t . , p . 125; Esco, o£. c i t . , p. U8b. The Beisan Peasant Party was in agreement with these two parties but was less vocal. I l l gentlem en in a pamphlet, c a lle d , A Statement to the Moslem World about the Holy and Muslim Places in Palestine, published at Jerusalem in 135>0

A.H. (1932 A.D.). They specifically criticized the erection of a hotel over a portion of a disused Muslim cemetery and, in general, complained about a state of disrepair

The first part of their accusation was true since, according to

Muslim law, cemeteries should be used for burial purposes only. However, their accusation against the waqf administration for poor repair of b u ild in g s was somewhat excessive sin ce a surplus o f money was never ^2 available in the budget of the waqfs.-'

A member of the Mufti’s opposition, Mr. Fakhri Nashashibi, accused the Mufti of mishandling waqf funds to build up and arm his following and to promote terrorist activities. This charge was not made -until two years after the Mufti lost his office and Mr. Nashashibi never offered any evidence to substantiate his statements, so that, tinder the circumstances, a "Scotch verdict of not proven” must be given.

The most serious accusation against the Supreme Moslem Council was d irected a t the M ufti by the Jewish community which accused the

Mufti o f using the Supreme Moslem Council to arm a follow in g and to build a tight political party. While it is easier to establish that the

Mufti was an ardent nationalist, heavily involved in politics, and not

The document which is written in Arabic is not available in the but is referred to by L.A. Mayer, ogi cit., p. 11.

^2 See, Palestine Post, 6 January 1939. 112 above suspicion in the conduct of terrorist activities, the use of waqf funds for these purposes on a large scale was unlikely for two reasons: f i r s t , there were members o f the Supreme Moslem Council who belonged to different political parties who would not condone such action and, secondly, when the financial commission later took over the control of the Council’s funds, it found out that the waqf income was so tight that there were no funds to repair the mosqjies of Hebron and Nablus which had been damaged in bad r a in s . ^

It is more likely that such political activities as had been conducted t hrough the use of waqf funds were those connected with the use of waqf facilities such as the printing press and the rendering of fiery patriotic speeches at the mosques.^

The P a lestin e Government was not in s e n s itiv e to waqf a ffa ir s but since they did not pose a threat to th.3 its security the government took very little action on their behalf. After the Supreme Court annulled the elections to the Council in 192U, the government contented i t s e l f by th e enactment o f the Supreme Moslem (S h ari’a) Council-amend- ment-Ordinance whereby a provisional council of four under the existing

Rais al-Uluma were nominated instead by the government rather than by the Muslim community.

£3 Report for 1937, Colonial Pqper 11*6, og. c it., p. 31. Abdur- Ruhman al-Taji belonged to the National Defense Party of Raghib Nashashibi. See Beatrice Erskine, og. cit. , p. 177; Abdul Latif Salah to the National Bloc, see Kisch, og. cit. , p. 131} the Director General of the Waqfs Izzat Darwazeh to the Istiqlal Party, see Esco Foundation, og. cit. , p. 771. Thus, the composition of the Council precluded any large scale mishandling of flunds for personal use but did not rule out cooperation for mutual aims re the opposition to the national home idea.

The Supreme Moslem Council did use the p rin tin g p ress o f the Muslim orphanage and speeches were made in accordance with sermons on Friday. 113

A general committee of the Electoral College was constituted to make recommendations for the revision of the regulations concerning the fu nction s o f the Supreme Moslem Council and th e e le c tio n o f i t s members,^-3

This committee submitted a draft law concerning the system of elections in 1928 ^ and followed it the following year with a fu ll report advocat­ ing th e crea tio n o f a General Moslem Assembly and a Supreme Moslem

Council separately elected,^?

The committee’s recommendations were interesting because apparently they had hoped to set up an Assembly modelled after the organization of the Jewish community and perhaps to turn the Assembly into a substitute for the defeated proposal of an Arab legislature.

However, nothing was done about these recommendations—the official excuse being the disturbances of 1929—and so the Palestine government continued to nominate individuals to the Supreme Moslem

Counfcil replacing those who had died in office.

The Palestine government hoped to lim it the authority of the

^ Report by His B ritannic M ajesty's Government to the Council of the League of Nations on the Administration of Palestine and Trans- Jordan for the year 1926, Colonial Paper 26, p. 23; see also Fanny F, Andrews, 0£. cit. , pp. 190-191*

^ Report by His Britannic M ajesty's Government to the Council of the League of Nations on the Administration of Palestine and Trans- Jordan for the year 1928, Colonial Paper No. l|0, p. 37*

£7 Report by H is B ritannic M ajesty's Government to th e Council of the League of Nations on the Administration of Palestine and Trans- Jordan for the year 1929, Colonial Paper No. lj.7, p. 15. A minority of the Committee disagreed with the changes.

58 Ibid., p. 55. Ilk

C ouncil1 s President by limiting his term to nine years,^ but since the draft ordinance was never applied this provision remained a dead letter.

It tried on the other hand economic reforms instead of political reforms. The government hoped that by strengthening the financial structure of the Supreme Moslem Council it could also lower the costs of the Shari'a courts and create a reserve fund for contingencies and emergencies such as unforeseen damage to buildings by the weather.

Accordingly, agreements were made in 1933 and 1935 whereby waqfs funds were to be audited, the expenditure o f the Supreme Moslem Council was to be reduced to LP U1*,000 annually (or a year's budget), and a reserve fund of LP 5,000-7,000 be set aside annually until the sum of LP 1*U,000 was reached after which the annual payment could be reduced to LP 3,500.

In return fo r a l l th ese concessions by the Supreme Moslem C ouncil, the

Palestine government undertook to investigate waqf claims to additional villages with the view of increasing waqf tithes retroactively and agreed to allow the Council to set aside one-fourth of any lands it purchased for landless Arabs.

A fter the r io ts o f 1936 and th e prominence o f the members o f the

Supreme Moslem Council in th ese s tr ik e s , th e Government decided th at the existing Arab leadership should be rendered harmless principally by exile or detention. Accordingly, a notice appeared in the Palestine

G azette o f 30 September 1937 follow ed by communiques on 10 October and

^ J.C. Hurewitz, The Struggle for Palestine (New York: Norton, 1950), pp. 53-5U. :------

See following section in this chapter for an assessment of waqf income and expense. 115

16 October in which Haj Amin al-H u ssein i was removed from the o ffic e o f

Mufti and from the General Waqf Committee. Instead, a financial com­ mission was appointed with powers over waqfs.

These measures, the Defense (Moslem Awkaf) R egulations—1937, gave the High Commissioner the power to appoint commissioners for the

Supreme Moslem Council; made th a t Council and the General Waqf Committee subservient to ithe commission; vested funds, cash, securities, and deposits in the commission giving it powers to repay debts, give receipts, inspect, and appoint personnel; and required all accounts to be audited. The regulations also prescribed penalties against persons contravening the statute.^

The excuse for removing the Grand Mufti was that no letter informing him of his nomination was ever sent him nor was his appoint­ ment ever gazetted*^ However, the government apparently did not feel sure of itself on these grounds and no mufti was ever appointed for

Jerusalem during the rest of the Mandate.

The financial commission composed of a chairman and two members assumed con trol o f th e Supreme Moslem C ouncil's funds and found that the mismanagement of funds had been greatly exaggerated, and, as a result, turned back to the Council most of the financial control

^ Report for 1937, Colonial Paper No. ll* 6 , pp. 21, 1&-U5; see also Defense (Supreme Moslem S h ari'a Council) R egulations 1937 No. 730, Notice under the Defence Regulations No. 7, 1937 and Extraordinary No. 723 found in the Supplement to the Palestine Gazette No. 2, pp. 913, 973-97U. 62 Palestine Royal Commission Report, o£. c it,, pp. 177-181. 116

retaining only nominal control*

Although th e management of waqf a ffa ir s was returned t o the

Council, nevertheless, at the beginning of 1938, twelve persons in the waqf administration known to be friendly to the Grand Mufti were purged

including the Director General, Mr. Izzat Darwazeh.^ Dr. Yusuf Haykal,

an able and n o n -p o litic a lly aligned econoraist-lawyer, was named in h is

place*

With these reforms and the escape of ■fee Grand Mufti from Pales­

tine, the influence of the Supreme Moslem Council in the politics of

Palestine became negligible and a chapter of the waqf-religious

sym biotic rela tio n sh ip in the p o lit ic a l l i f e o f the Arab community

passed away never to r e t u r n ,^

V. AN ASSESSMENT OF WAQFS IN PALESTINE

The clearest way to determine the importance of the types of waqfs to fee waqf administration and the priorities it gave to different

activities is by the examination of the financial structure of the

^ Report for 1937, Colonial Paper II4.6 , p. 22. The Financial Commission consisted of Mi*. Justice Greene, a respected justice; Shaikh Hussam al-Din Jarallah, M. BE, and Mr. A. L. Kirkbride, O.B.E., however, i t was found th a t Mr. Kirkbride was on extended leave and Mr. R.E. Jardine, C.M.G., O.B.E., was named to replace him.

^ J. C. Hurewitz, oj>. cit*, p. 6l ,

6$ P olitical manipulations were conducted by the Arab Higher Committee which d iffe r e d in i t s membership from the Supreme Moslem Council. Actually, the political leadership of the Arab community never really recovered from the events of 1937 and there existed no real party life fcheredftbh* 117

Supreme Moslem Council.

The Supreme Moslem C ouncil’s income sheet i f regrouped d iffe r e n tly

for the purpose of analysis shows that the income consisted of payments

by the government, income from other waqfs, and extraordinary income

derived through the sk ill of the Council which was not normally con­

sidered waqf income.

The payments by the government consisted of the tithes, land

registry fees, government aid to schools and the commuted private waqf

t it h e s .

The tithes which were paid until 1932 comprised the tithes from

the takhsissat waqfs whose percentage was 12 .7 5 of the total tithes for

Palestine.^ They were collected at the rate of 10 percent of the

farmer’s gross yield, less a charge of 6 percent from the total collec­

tion as compensation to the government for the expenses incurred in

collecting the tax.

Although the tithe collections were harsh in principle, since

10 percent of the gross yield meant actually more than that in terms

of net yield, there were some factors which tended to lower the tithe

assessments. The last reassessment had been made 25 years prior to

1918, some records had been destroyed in the first World War, and no

accurate surveys existed. In many cases, too, sympathetic officials set

low estim ates.^

Royal Institute of International Affairs, Great Britain and P a le stin e , 1915-19^5 (Londonj The Royal I n s titu te o f In tern ation al A ffa ir s, 191*6), p. 31.

67 Memorandum, 1937, oj>. c i t . , pp. 50-52. 118

When the Palestine government collected the tax according to the estim a tes, the t o t a l ta x increased from LE 273*000 in 1919 to LE 1*88,600 in 1920. It was realized that this was placing hardships on the farmers 68 and was consequently lowered to LE 292,000 in 1921, This trend was continued in 192$ when th e ra te o f tax was s lig h tly lowered and in

1928-1929 when new legislation made it possible for assessment officers to commute taxes

In the last year of the tithe, 193^-1935, before its abolition and replacement by the rural property tax, the assessed Treasury share was LP 223,061 while the waqf share was LP 1*0,777, making a "total assessed tithe" for that year of LP 263, 838 . Of th is t o t a l amount, some

LP 130,731 were remitted. (The Treasury remittance amounted to LP 111*, 122 70 w hile the waqf rem ittance amounted to IP 16,609).

The great fluctuations of the waqf tithes from year to year made it difficult for the waqf administration to plan ahead of time with any degree of accuracy, and the higher the waqf income from tithes the greater the misery of the farmer in waqf lands. Its effect was felt as early as 1919 when the Mufti of Jerusalem complained to the city planner of Jerusalem, Mr. Charles Ashbee, about decreasing waqf revenues. The

68 See, Report on Palestine Administration, July 1920-December 1921, p . 11.

69 P rior to 192$, th e non-waqf tith e s amounted to 12.$0 percent but in 1925 all tithes were equalized at 10 percent. In 1928 and 1929 the Commutation of Tithe Ordinance and the Exemption of Tithe Ordinance gave some tax relief to the farmers.

70 Memorandum for 1937, ££• c it. , p. $2. 119 lowest point of waqf revenues from tithes was reached in 1932 when the waqf assessment amounted to IP 28,000, of which only IP 12,000 were 71 actually collected and paid to the Council.'

The Government o f P a lestin e r e a liz e d the d if f ic u lt ie s encountered ty the Supreme Moslem Council from th is s ta te o f a ffa ir s and undertook to pay a lump sum annually in lieu of tithes. Additional waqf claims were investigated and retroactive payments were made.

Three agreements were signed between the Palestine government and the Supreme Moslem Council between 1932 and 1935.

The first agreement occured in 1932 when the Palestine government

agreed to pay LP 23,000 to the Supreme Moslem Council because the actual collections of the tithes amounted to only LP 12,000.^ The second

agreement executed in 1933 involved the payment of LP 58,750 to the 73 Council as follows:

a. Compensation for the reduction due to remission in the commuted tithe in 1930 and 1931 IP 30,000

b. Compensation for January-March 1932 5,750

c. Compensation for the year 1932-1933 23,000 l p 58,7"5o The la s t agreement executed in 1935 involved th e sum o f LP 66,1*00 for the following: ^

Charles R. Ashbee, o£. cit. t p. 98.

^ Report by His Britannic Majesty's Government to the Council of the League of Nations on the Administration of Palestine and Trans - Jordan for the year 1932, Colonial Paper No. 82, p. ll*.

73 Ibid. for 1933, Colonial Paper No. 9k, p. 158.

^ Ibid. for 1935, Colonial Paper No. 112, p. 171, 120

a. Compensation in arrear up to 31 December 1931 of tithes to additional waqf villages and lands IP 1*3,690

b. Annual payment of additional tithes for 1 January 1932-31 March 193k 15,750

c. Increase of the annual payment in lieu of an additional payment from 1 April 193U 7.000 LP 66,1*00

Since 1935, th e annual payments in lie u o f tith e have amounted to

LP 30,000.

With the exception of tithes, the Palestine government continued the Ottoman practice of paying one-half of the Land Registry fees to waqf lands, returning the tithes to private waqfs and subsidizing waqf schools on the basis of a nominal sum for each student enrolled in 75 these schools.

The income of the waqfs other than the payments made by the government consisted of rents from urban property mainly, the mundarissa waqf schools, the Tiberias Baths, the Sidna Ali Private waqf and the item called miscellaneous.

Much of this income was decreasing due to outside causes, however, th e investm ents made by the Supreme Moslem Council with the approval of the government were designed to counteract this trend.

Changed liv in g h ab its lowered the revenue from the T iberias Baths to the vanishing point while many of the waqf buildings were small buildings

75 There was an increase in land registry f ees in the coarse of the mandate and a resulting increase in waqf income, but a steady deterioration in commuted private waqfs because of the decrease in the t it h e s . This did not m ateria lly a ffe c t th e Supreme Moslem Council since this type of income is normally paid to the Mutawallis after slight deductions for inspection and accounting fees if any. 121 located in the older parts of towns and, therefore, did not command 76 choice rents. Indeed, with the expansion of the towns less revenue could he expected from them. Then, too, the mundarissa school income consisted largely from rents which continued to decrease.77

On the other hand, the Sidna Ali waqf located in the orange growing district near Nathssya could be expected to yield more revenue with the improvement of orange growing methods and the eradication of p lan t diseases, while the B irket Ramadan reclam ation scheme sup­ plemented that income.

The r e s t of th e Supreme Moslem C ouncil’s income consisted of accounting fees, orphanage receipts, small fees from the clinj.cs and contributions for the repair of the Haram al-Sharif and the Harem

Ibrahim at Jerusalem and Hebron respectively (also the sale of guide books to these places). AH of these items represented the Supreme

Moslem Council's business acumen.

^ No survey of waqf buildings exists but it is concluded that the number was around 300 of old b u ild in g s and22b of new buildings. These figures are derived from the statement of repairs to buildings over a 15-year period—sufficiently long in time to have had all build­ ings rep aired . See Report fo r 1936, C olonial Paper No. 129, p. U2.

77 The lapsed waqfs or waqfs mundarissa were located at Nablus, Acre, Jaffa, Hebron, Gaza and Haifa as the Urfan school at Nablus, the Abmadiya school at Acre, the Dar el-Ulum schools a t J a ffa , th e Ulmia school at Hebron, the Hashimia and Waqf schools at Gaza and two schools a t H aifa. The income in 1921 amounted to LE U,800 o f which some LE 320 were tithes however, decreases occured in their rents although the actual income was supplemented by school fees on the balance sheet of the Council. See Interim Report on the Civil Administration of Palestine during the Period July 1 1920-June 30 1921, Command No. lii99, 1921* ^/lst Samuel ReportJT, Appendix III, p. 27; and Report for 1920-1921, Colonial Paper No. 9 , p. 5>1. There are some slight errors in the reports on the transliteration of names where Ahmadiya is rendered as Amadia and Ulmia as Elwia. Fees from orphans' estates were probably carried under Miscellaneous. 122

The expenses o f the Supreme Moslem Council co n sisted o f adminis­ tration expenses, operating expenses, welfare provisions, investments, and funds for individuals*

The costs of administration made up of the items marked adminis­ tration, guards, gratuities to discharged officers and relief, and audit do not sppear excessive if the subsidies to religious personnel are not included. The only standard of comparison is the waqf adminis­ tration of another country close to Palestine in problems and population.

Such was Syria where the cost of administration was said to be some 20 79 percent of the waqf budget.

The waqf employees co n sisted o f some £f>2 employees at the start of the Supreme Moslem Council's life®® and had risen to some £92 men 81 by the reform of the Council, Although a slight increase was necessi­ tated by the population growth, the assumption of control over the

79 William E. Hocking, The Spirit of World Politics with Special Studies of the Near East (New Xork: The Macmillan Co,, 1932),pp. 319-321,

Report for 1922, Colonial Paper No. 17, Appendix, The dis­ tribution of these employees was as follows: Muslim Orphanage (J e r u sa le m...... ) 18 Muslim Theological College (Jerus) ...... 12 Takia of Khasqi Sultan Waqf (Jerus)...... 6 Sheikhs of Zawiyas 10 Other persons receiving allowances and salaries . . , ...... , , 9 9 Other waqf employees: Jaffa ...... 62 G a z a ...... 62 H e b r o n ...... 80 N a b l u s ...... 80 A c r e ...... 123 T otal £9,2

Beatrice Erskine, 0£. cit., p. l60. It appears that of the total number of waqf employees there were 90 teachers. 123

Najah and the Ulmia schools probably accounted for most of this increase.

The figures for the operating expenses show that between 20 and

30 percent of the budget was spent on these items. The repairs had, however, to be selective since there were over 800 buildings under the

care of the Council and would amount to an average of IP 10 for each building, so that any charge levelled at the Council for insufficient repair of buildings gains some credence.

The amounts spent on welfare could be broken down conveniently

as items of civic welfare and items of religious welfare. Although

some mosques were more h ea v ily endowed than oth ers, the average o f

IP 30 per mosque appears to be a low figure. On the other hand the

zawiyas and takaya were subsidized at the average of IP 2£0 per year.

The school figures are also instructive in the sense that since

sums between IP 6,000 and IP 10,000 were paid for the schools, and

teachers' salaries in Palestine amounted to between IP 60 and IP 3^0 a year, the school budgets could thus have paid not much more than the

teachers' salaries computed at a low pay scale.

The lessons to be drawn from these figures are that mosques were

expected to fend for themselves probably by relying on individual

donations, while waqf budgets appear to have been made up on the basis 82 of priorities rather than the stipulations of the waqfiahs.

The Khasqi Sultan waqf had a substantial income of more than IP 10,000 at th e beginning o f the Mandate y e t had only s ix employees mentioned in the waqf budget. This practice of assigning income according to need is not really a bad practice but deviates from early Muslim law in which heavy reliance was placed on the conditions of the dedicator, as stipulated in the waqfiah. 12U

The Shari*a courts were adm inistered by th e Supreme Moslem Council in a separate budget which the government of Palestine subsidized.

There were 91 o ffic e r s,3 $ 0 ma*zouns,®^ and 250 other employees.®'*

Fees were charged for services but they never equalled the expenses of the courts.

The Supreme Moslem Council was given a great deal of discretion in fixing court fees. These fees were deliberately kept low based on the sociological premise that most persons appearing before the courts were poor and increasing such fees would deter them from seeking legal remedy.

It seems also plausible that since the Council was not paying the deficit it did not care to increase these fees. In 1935, with a

deficit of LP 7,500, the courts had heard 10,11^ cases of which 237 were

appeals, witnessed 9,289 deeds of marriage and, decided 1,238 cases o f

divorce. The total of more than 12,000 actions netted around IP 8,800

(excluding advocate fees) and an action before the court cost less

than an average of 75 piasters or 15 shillings.

The Vaad leumi (the executive of the Jewish community in Pales­

tine) exerted a great deal of pressure on the government of Palestine

to balance the budget of the Shari*a courts on the argument that the

Babbinical courts were not paid by the state so that Jewish taxpayers

Report for 1922, Colonial Paper No. 17, Appendix.

Ma* zoun is a person given permission by the Qadi to perform an act such as the witnessing of a contract of marriage.

Beatrice Erskine, 0£. cit., p. l60. 12f> fi 6 were subsidizing the Shari*a courts* As a result, the government of

Palestine tried to pressure the Council to increase the fees charged by 87 the Shari * a courts#

Court expenses consisted largelyr of the salaries of judges and court employees, and after 1935, the cost of living allowances and 88 pensions were paid by the government.

A fter th e reform o f the Supreme Moslem C ouncil, at the end o f

1937, that body became relatively divorced from politics and, for better or for worse, restricted itself to waqf affairs. The intervention of the second World War prevented the possibility of any large scale building activity and froze all rents in Palestine at the rent-scales of 191*1 which was a very poor year for rents.

In the course of the Palestine Mandate, the government of Pales­ tine had succeeded in implementing the reforms of the Tanzimat especially those of the Young Turk Revolution. Very little legislation was really different from Ottoman legislation but the law reforms, the edicts concerning land, and the secularization of the state were put into e f f e c t .

On the other hand, 1rith the exception of the in itial election of the Supreme Moslem Council, nothing was r e a lly done to implement the creation of Christian and Jewish Councils for charitable affairs.

86 Report for 1935, Colonial Paper No. 112, p. 9h»

87 Beginning with 1933* See Report for 1933, Colonial Paper No. 9h, P. 61.

OO Shari*a Courts Ordinance* see also Report for 193U, Colonial Paper No. 10U, p . 61** 126

Indeed the restriction of the Shari'a courts to Muslims left many ambiguities in the law of waqfs so that no Christian or Jew could safely 89 rely on the creation of waqfs. In effect, waqfs in Palestine became almost synonymous w ith Muslim waqfs w ith few exceptions.

The events of 19^7--19^8 resulting in the division of Palestine into three parts without any gradual preparation for this eventuality caused a grave population imbalance and made so many changes in the power structure of the country that radical changes in the eontrol and

administration of waqfs occured.

The charitable Trusts Ordinances of 192U and 1925 which were similar to the Ottoman Law of Societies, permitted the change of land from waqf to ordinary mulk in the case of Jewish and Christian waqfs where the request was made by a religious court or by the beneficiary. Furthermore, in the correction of registers following the first World War religious property was registered as miri or mulk. CHAPTER V

THE ISRAEL REFORMS

I. PROBLEMS CREATED BY THE PARTITION OF PALESTINE

The events of 19H7-19U8 shattered the existence of Palestine as a legal entity and as a result created a host of problems concerning the institution and functions of waqfs.

Prior to November 19k7, th e Supreme Moslem (S h a ri’a) Council

took care of the many functions of a religious or charitable nature for the Muslim community. Its activities were supplemented by some charit­

able organizations constituted sometimes on a sectarian basis and at 1 other times on a functional basis divorced from a sectarian character.

The Shari'a judges continued to be paid by the state, the Council's budget was s t ill heavily dependent upon payments by the government, and the reform of the Council in 1937 had removed that booty- from major involvement in the political life of the community.

The Christian communities were largely autonomous and, except for the Russian Orthodox Church in Palestine^where the control of its finances was not acknowledged to reside in the Moscow Patriarchate, and the Anglican community whose separate e x iste n c e was not o f f i c i a l l y

M.E.T. Mogannam, The Arab Woman and th e P a le stin e Problem (London: H. Joseph, Ltd., 1937), gives a list of charitable societies in Palestine which were largely administered by women. 128 2 recognized, not many problems awaited solutions. While it was true that no lay councils had been created by these churches as contemplated by the Ottoman Constitution and certain ambiguities existed in relation to waqfs not created after the Mandate, there was no fuss about Christian w aqfs.

The Rabbinate was not able to absorb its budgets in that of the

Vaad Leumi but mutual toleration and the existence of many outside

activities performed by the Jewish Agency which duplicated many waqf

functions removed the necessity for a struggle between these two bodies.

The host of problems which the Palestine Mandate had inherited

from the Ottoman Empire had been disposed of with the exception of the

completion of cadastral surveyj however, land settlement continued to make steady progress. The country was emerging from a war and had

never seen such prosperity.

The h o s t ilit y between the Arabs and the Jews in P a lestin e and the

continued failure to arrive at a political settlement resulted in the proposed partition of Palestine by the United Nations into an Arab part and a Jewish part dependent to a large extent on mutual cooperation,'

There were to be in the Arab parts of Palestine places sacred to the

Jews and vice versa. No large scale population exchange was contemplated

^ The recognized Christian communities in Palestine were the Greek Orthodox, the Latin Catholics, the Greek Catholics, the Armenian Orthodox, the Armenian Catholics, the Syrian Orthodox, the Sfcrrian Catholics, the Chaldean Catholics, and the Maronite Catholics.

3 Larry L.ELeonard, The United Nations and Palestine (New York: Carnegie Foundation for International Peace, 19E9). 129 nor were subsidiary problems considered in the proposals.

P a lestin e had been developed in such a manner th a t mixed popula­ tions rarely resided in the same area and with the outbreak of hostili­ ties clear delineation soon appeared within the country and in each major city. Superior arms and organization eventually won for the

Jewish community most o f the parts which were in h ab ited by them so that they were able to proclaim the existence of the state of Israel on the Ityth of May 19l|8, which by then had a definite territorial basis L with the exception of a few pockets of resistance.

The division of Palestine and the subsequent hostilities even­ tually resulted in the displacement of a large number of Palestinian

Arabs and the absorption by the Jewish community o f PcMorAonal t e r r i­ er tory than had been contemplated in the partition proposals. From a m inority under the P a lestin e Mandate, the Jewish community became a majority within the territoiy which it held, so that the population shift created different problems of emphasis changing the dynamic quali­ ties of the various religious communities. Some communities were weakened and others were strengthened and many changes were put through which were not previously contemplated or provided for 0

The Assembly of the Jewish Community no longer had a raison

k Folke Bernadotte, To Jerusalem (Londons Hodder and Stroughton, 19^1), for diplomatic manoeuvres; Jon and David Kimche, Both Sides of the H ill (Londons Seeker and Warburg, i960), for a view of the fighting.

£ Don Peretz, Israel and the Palestine Arabs (Washingtons The Middle East Institute, 1958)> pp. 19-91, on the refugee problems and attempts at a solution of the problem. 130 d*etre and accordingly was dissolved. The Rabbinate remained what it was under the Mandate except that with the enlargement of the Jewish population and the absorption of more immigrants there was a growth in

t its activities. Financial assistance by the state—long the preserve of the Muslim community alone—was deemed necessary. The arrangement for the Rabbinate was not a very happy one but was considered an essential compromise. Under this arrangement, the Ministry for Religious Affairs is paid out of the regular budget fifr the state and its functions include such activities as the teaching of soldiers, religious education, super- o f vising/Kashrut, providing religious books, and the like for immigrants.

The practice of having two chief rabbis was continued and the Minister for Religious Affairs was actually a cabinet officer.^

From w e ll over a m illio n in population, the Muslim community was reduced to slightly over 110,000 scattered in dozens of villages and towns. The organization which had dealt with religious and waqf affairs had been the Supreme Moslem Council whose lo c a tio n was in the old c ity of Jerusalem which, after 191+8, VfeUe outside of Israel.

The members of the local committees centered as they were in the cities were now refugees. Then, too, the dependence of Muslim religious functionaries on the state and the Council for their wages made the collapse so complete that waqf functions ceased to exist, except in the rare case where the functionary continued in his job and performed

'^ie O ffic ia l Government Yearbooks exp lain the functions of each government ministry^ These books are published annually by the Government P r in ter , Jerusalem. 131 religious services.?

The Christian communities were also affected by the change in ev en ts. The la r g e st C hristian community had been the Greek Orthodox

Church w ith over lj.0,000 so u ls. This community was now reduced to th ird place among Christian communities with a population of some 1!?,5>00. The

Greek C atholic Church moved to f i r s t p lace, w ith a t o ta l population o f

18.000, and in the process not only outdistanced the Greek Orthodox

Church but also the Latin Catholics—a population which numbered^ only

6 .0 0 0 . The marginal churches o f the Armenian, Syrian and Coptic Ortho­ dox became practically insignificant and the Maronite church was reduced 8 to two border villages.

The religious lines of authority were also broken. The Greek

Orthodox Patriarch, the Latin Catholic Patriarch, as well as the other orthodox dignitaries resided in the old city in Jordan; the Maronite 9 and the Greek Catholic Patriarchs were residents of Lebanon.

The income of these various communities was also affected. With the exception of the Latin Catholic Church and the smaller of the

Protestant denominations, none of these communities could safely rely on outside a id . The Greek C atholic Church was the most fortunate sin ce most of their holdings were largely located in Northern Israel and,

7 1 Personal observations and talks with Israel Arabs. O See Appendix for a breakdown on the Arab population of Israel by religious denomination.

^ The Christian News from Israel published quarterly by the Israel Ministry for Religious Affairs cites the visits of religious fig u re s from Arab cou n tries. (Ha Mahlakah l e !edot N o tsriy o t). 132 therefore, remained within the territorial lim its of the state. However, the income of the Orthodox communities was divided between Jordan and

Israel and since the Patriarchates were located outside the country,

little help could be expected from the usual appeal to save the Holy

Places. Then, too, armies in battle could not be expected to halt when

they saw a waqf or a church which offered a vantage point however of a

temporary nature, so that some waqf and church property was in itially

damaged or occupied.

These changes could not but affect waqfs and, since institutions

are administered by individuals subject to the checks of the power

structure of a community, any changes in the power relationship within

a country affects the institution if only because of changes in the

dynamic q u a litie s o f th a t community.

The reduction in the s iz e o f the Muslim community and th e break­

down o f the authority o f the Supreme Moslem Council meant th a t a vacuum

existed which could be.lfilledidh&jl by the government. Then, too, the

dependence of the waqfs on the state for funds doubly strengthened the government’s hands.

During the Palestine Mandate, some non-Sunni Muslim sects, notably made up of the Druzes and the Beha'is, were considered heretic

Muslims and consequently were under the control of the Muslim community.

Arab prisoners of war were quartered in the mosque at Uram Khalid near Nathanya. See, Abraham B. Magil, Israel in Crisis (Hew.Iork: International Publishers, 1 9 $ 0 ), p. 6l. Several church properties were damaged or occupied. The number of damaged b u ild in g s was 11 and occupied buildings were l*5>. See Kenneth ¥. Bilby, New Star in the Near East Garden C ity, New York: Doubleday and C o., 1 9 £ o ), pp. 200, 211-216. 133

The sm all s iz e o f the Druze community and the in sig n ific a n t s iz e o f the

Beha'is won them the concession by the Palestine government to constitute a special Islamic court in the event of a death of a member of their community, but the control of their waqfs was exercised by the waqf administration.

With the decrease in the size and importance of the predominantly

Sunni Muslim community, it was inevitable that the Druze should demand a separate status and, since they had helped in the founding of the state, to obtain it .^ The importance of the nomad increased also because of the increased ratio of nomad to Arab settler. Since he had little need for the functions of the waqfs because of his nomadic nature, there was a lessening of waqf services in Southern Israel where the nomad liv e d .

In regard to the Christian community, the dynamic changes of the importance of the various communities meant that the Greek Catholic

Church would be most in flu e n tia l—a community which had very few waqfs— and that the political pressures which in the past acted as a check on the power of the bishops would be greatly lessened. With this lessening of influence came also a lessening of the possibility of the creation 12 of any waqf councils.

11 Druze battalions in itially fought with the Arab Army of Libera­ tion but other Druze contingents fought with the Israel forces. It is not clear whether this was the result of changing horses in mid-stream to the winning side or as a result of a difference of opinion between the Lebanese-Syrian Druzes and the Palestinian Druzes.

A society called Jamiai al-Ihsan w-al Islah pressure d the late Greek Catholic Archbishop John Hajjar to consult the community on waqf affairs in the late 1920's; however, no such society exists today. 13k

I I . EXTENT OF WAQFS IN ISRAEL

The division of Palestine into Israel, Jordan and the Gaza strip left many waqfs in Israel which had previously served a social or religious purpose in Palestine but which had lost their purpose with the displacement of the population or served a much smaller proportion of th a t population. A v illa g e w ith a mosque became vacant and the mosque remained a memento to a bygone era, a school located within a monastery became an army barracks, the Western or Wailing Wall located in the heart of the Old City of Jerusalem ceased to hear the prayers of religious Jews after at least six centuries of devotions.

Some towns were entirely bereft of their Arab populations. Jewish

Jerusalem had no Arab population and neither did Safad and Tiberias.

H aifa and Ramleh-Ludd had v a s tly reduced p op u lation s. The only munici­ p a lit ie s w ith continued Arab populations were Nazareth and Shefa’amr

(Shfar'am).

There were also many villages which stayed intact and others which were destroyed or had become vacant. Of the more than 313 larger mosques in P a lestin e, there were some 200 mosques and r e lig io u s b u ild in gs in Israel, half of which were vacant and located in non-Arab populated \ places. Only 73 buildings were being used shortly after the establish­ ment of the state of Israel for Muslim devotional purposes.^

^ The book by L.A. Mayer, Muslim Religious Buildings in Israel. ( Ministry for Religious Affairs, 195o)", came as a result of an investigation into the condition of Muslim buildings in Israel terri­ tory for the Ministry for Religious Affairs. 135

Of the seven waqf school centers in Palestine, three centers remained in Israel; the’Urfan school at Nablus, and the ’Ulmia school at Hebron were both in Jordan; the ’Ulmia and waqf school at Gaza were now occupied by a military administration of the Egyptian government.

The rest of the centers located in Israel were the Ahmadia school at n I Acre, the Dar a l-’Ulum schools at Jaffa, and two waqf schools at Haifa.

Many of the institutions attached to the Supreme Moslem Council during the course of the mandate for Palestine were divided between the new s ta te s . The Muslim lib ra ry at Jaffa and Zawiyat Nabi Daoud at

Jerusalem remained in Israel. On the other hand the Moslem Orphanage, the Moslem theological College, the takia of the Khasqi Sultan waqfs, the library and museum of the Masjid al-Aqsa, the Moslem Clinic and ten zawiyas all at Jerusalem, and the takia and compound of Sidna

Ibrahim at Hebron remained in Jordan. All zawiyas, khans, and madrassas in the Jerusalem area, with the exception of Zawiyat Nabi Daoud were outside Israel and located in the Jordanian part of the city. The secondary schools of Rawdat al-Ma'aref at Jerusalem and the Najah school at Nablus which had been supported from waqf funds were in Jordan.

There were in Israel some mosques, buildings and cemeteries of historic value. They consisted of the followings Nabi Ukashah mosque,

Jerusalem; the Great Mosque, a t Ramleh; Maqam , a t Yavne;

Haram Sidna A li, near H erzlia; Jarayna or Great Mosque, a t Haifa;

^ I ai basing these surveys on the cities and towns which remained in Israel and those which were outside the borders. See chapter on Palestine for details on buildings in Palestine. 137 local houses of prayer which had been deliberately kept simple to avoid trouble prior to the creation of the state of Israel.

The B eha'is have some holy p laces connected with th e l i f e o f

Baha'ullah, the founder of Beha’ism after the death of al-Bab in Iran.

They are the tomb of Beha’ullah at Acre, the house at Mazra’a near

Nahariya, Beit'Abboud, tombs at Haifa, and a cell at the Acre fort.

Of these, the tombs of Acre and Haifa are waqfs in accordance with Muslim law which was also Beha’i law under the Mandate. The cell at the Acre fort was also a dedicated waqf but had been destroyed in the Palestine era by the Public Works Department, but it has since been

*i O reconstructed. Beit 'Abboud at Acre and a Shi’a cemetery still exist.

The t o t a l number o f the B eha'i community i s around 200 and th ey are governed by a spiritual board of nine. It is at present not quite clear whether they should be counted as Shi'a Muslims or as a separate religious group. They are not a separate religious community with religious courts so that ambiguities exist as to the constitution and internal administration of their waqfs.

Christian church property of which only a small proportion is waqf comprises some 200 churches, 100 monasteries, 5>0 sch ools and 118 cemeteries in Israel. Many of these are very small affairs indeed and many of the cemeteries actually exist in the same area although they are counted separately because sections of the cemetery are reserved

The Beha’is are known in Israel as Beha’is but in Iran as Babis. For a list of their holy places see The Arabs in Israel, op. oit., p. kl, and for the destruction of the cell at the Acre fort see F.H. Kisch, Palestine Diary, op. c it., pi 133. 138 19 for each particular religious community.

The most important waqfs in Israel which were monasteries ah antiquo were the Monastery of the Cross and the Monastery of St. Simeon, 20 Greek Orthodox churches at Jerusalem, the Church of St. Peter, Greek

Orthodox church at Tiberias, the Monastery at Mt. Tabor, another Greek

Orthodox church, and the Franciscan Church of the Cenacle, whose status as a waqf is debatable.

The Greek Catholic Church property was a ll located in Israel and 21 the Anglican Church did not have any waqfs a t a l l .

The Maronites and the Armenians had owned some property around the Jerusalem area which subsequently ended in Jordan. On the other hand, the Syrian Orthodox Church found itse lf with some property in

Israel but with no church agent living there.

There were also a few Samaritans living in Jerusalem totalling some lf>0 souls. They had always been poor but theyeramyrhaxehadenne ancient synagogue which may be a waqf. Some 3,000 Karaites immigrated into the country but these were newcomers and whatever synagogues they 22 established was done after the creation of the state.

^ Israel Government Yearbook, 5720, 1959.

20 For a discussion of the Holy Places in Jerusalem, see Norman Bentwich, o£. cit., p. 188 .

21 The property o f the Anglican Church was r e g iste r ed in the name of many persons and societies but a charitable trust is in the process of being created.

22 The Karaites are Jews who reject the Talmud. The Ministry for Religious Affairs at present does not consider them as belonging to the Jewish community. They are largely immigrants from Iran and Egypt. 139

With the creation of the state of Israel there have been a number of Jewish gains and losses with regard to waqfs. In terms of net gains,

Israel has had the upper hand in waqf affairs since the Jewish community became the majority. The buildings which had historic interest to the

Jewish community were the Cave o f E lijah at H aifa, Zawiyat Nabi Daoud at Jerusalem, the town of the Mystics near Safad, and the Lion’s Cave at

Jerusalem.

With the exception of the town of the Ifystics which had been the object of Jewish veneration for centuries (usually title to the tombs was not very clear) the rest of the places had been Muslim waqfs.

Perhaps the n et lo sse s su ffered by th e Jewish community far out­ weighs the places which were gained because of sentimental and religious value. David, and the Talmudic teachers cannot outweigh in

Jewish religious sentiment the tombs of the Patriarchs, the Western Wall and the tomb of Rachel, all located in Jordan. The oldest synagogues were located in the old city of Jerusalem and were now without any

Jewish population. The largest Jewish cemetery was located on the 23 Mount o f O lives in Jerusalem and was now a lso in Jordan.

The important Jewish holy places in Israel now consist of the following:*^ (l) Mt. Zion, (2) Cave of Elijah, (3) Tombs of Rabbi Ben

23 Legal t i t l e resid ed in the Jewish community in regards to the cemetery on the Mount of Olives, co-ownership at the tomb of Rachel, and the right of access to the Western Wall.

2^ Perused from Government Yearbooks e s p e c ia lly I sr a e l Government Yearbook, 5716, 1955, p. 287 and 5717, 1956, p. 367. lUo

Hanania and Rabbi Jossi of Pe^’in, (1*) an ancient synagogue at Pek’in,

(5) Bar Y ochai's shrine a t Meron togeth er w ith the Cave and the Carob tr e e , ( 6) Lion’s Cave at Jerusalem, (7) Tomb of Rabbi Haninah ben Dossah,

( 8 ) Tomb of Beth Shamai, (9) Cemetery at Kafr Yasif, (lO).£omb of

Maimonides at Tiberias, and (11) ancient cemetery at Safad.

I I I . THE CONTROL OF WAQF AFFAIRS

The specific ministry in the government of Israel charged with waqf affairs is the Ministry for Religious Affairs. Actually, the

Minister for Religious Affairs shares control over waqf property with the Custodian of Absentee Property and the Development Authority who are part of the Ministry of Finance. The reasons for this division of authority lie in the normal transfer of the powers of the High Commissioner for Palestine to the ministers of the new state and in the extraordinary situation which occured in Palestine in 191*8 when a great amount of property belonging to Arabs who had become refugees in the surrounding

Arab countries, was left untended.

The Minister for Religious Affairs was given some of the powers of the High Commissioner with regard to the organization of communities, religious conversion, jurisdiction over religious courts, registration of marriage and divorce, and the powers under the Palestine Holy Places

Order-in-Council of 1921*.^ Several pieces of legislation revised

2^ The old laws were: Communities (Organization) ordinance; Religious Communities (Conversion) ordinancej Civil and Religious Courts (Jurisdiction) ordinance; Palestine (Holy Places) Order-in-Council, 1921*. lHi mandatory legislation and brought some of the powers of the Minister 26 up-to-date.

However, the Minister’s powers are actually much more limited in scope than the powers of the High Commissioner since legislation is a function of the Knesset whereas no parliament had existed in Palestine.

In essence, then, the Ministry for Religious Affairs can only issue regulations and recommendations. The major change in the Rabbinate occured when i t was given ex clu siv e ju r isd ic tio n over Jews in m atters 27 of marriage and divorce regardless of nationality.

The relatively wide grant of power to the Ministry for Religious

Affairs was not a happy one since it displeased many critics of the

a O Rabbinate but it was actually adopted as a compromise. In addition, the Ministry is provided with rent-free synagogues from the Development

Authority and the Amidar Housing Corporation and its budget forms part of the general budget of the government so that it is supported by the s ta t e . This dependence makes Judaism and Islam both esta b lish ed r e l i ­ gions in Israel while the Christian sects remain recognized religions. ^

26 The new laws were: Kosher Food (for soldiers) Law 5709/191*8; Rabbinieal Courts (Jurisdiction) Law 5713/1953; Marriage and Divorce Law, 5713/1953; Religious Judges Law 5715/1955; Religious Courts (summons to court) Law 5716/1956.

27 Norman Bentwich, oj>. c it., p. 199.

I sr a e l Government Yearbook, 5711*, 1953-5U, an a r t ic le w ritten by Prime Minister David Ben-Gurion, p. 22.

29 Christian hospitals and communities receive many benefits from the local and central governments so that the terms established and recognized are blurred but the real distinction lies in that Christian religious officials are not paid any salaries by the government. ll|2

The sizeable increase in the number of new immigrants to Israel placed additional burdens on the Ministry, and it was organized on a functional basis which illustrates its problems and affairs. Placed under the Minister are the following divisions:

MINISTER7 Department for Religious Affairs (headed by a Director General or Chef de Cabinet) D ivision z Z Z New Public Contactsz R eligiou s Talmudic Immigrant Service w ith L ife Colleges and Settlem ent Diaspora Holy Places X XX z s Rabbinatez C hristianz Muslim Beha’i sReligiou Councils and Admini- Community and stration of Druze Rabbinate Affairs Courts

The divisions of the Ministry concerned with waqfs are the

Talmudic Colleges and Holy Places Division, the three divisions dealing with Christian, Muslim, and Beha’i affairs, and the Division for the

Rabbinical Courts.

Only Muslim and Jewish waqfs are actually administered in some way by the Ministry since the Christian communities are independent.

The Ministry’s relationship with Christians lie mainly in protocol purposes, the coordination of activities and in providing channels of communication with other government departments and m inistries. This applies in almost the same way to the Beha’i and Druze communities, but 30 differ in that they are s till in some ways dependent on the government.

^ The Druze community and the B eh a'is have almost achieved autonomy^however, the Druze are s till dependent on the state for the appointment of its officials and a religious court is in the process of being organized. Iii3

- A ll Jewish consecrated property, which is the way official sources refer to dedicated property, is under the jurisdiction of the division for Talmudic Colleges and Holy Places. This would include

cemeteries and tombs, places of veneration, Jewish religious schools and Holy P la c e s. (A great d eal of autonomy e x is ts in the b u ria l s o c ie ­ ties for cemeteries in actual use so that the Ministry’s functions in regard to burials is more or less supervisory).

The Rabbinical courts continue to exercise the same degree of

jurisdiction over Jewish waqfs as they had exercised during the Mandate except that the division for the Holy Places actually administers the

Jewish Holy Places.31

Muslim waqfs are under the jurisdiction of the Division for Muslim

and Druze affairs which has control over the mosques, Holy Places, and religious sites or buildings left behind at the termination of the

Mandate. I t appoints and pays the employees fo r Muslim a ffa ir s , recom­ mends the Qadis for appointment to the president of the state, and in v e sts waqf income in to new p ro jects.

Many of the income-bearing property of waqfs is, however, under the jurisdiction of the Controller of Absentee Property and the Develop­ ment Authority. Laws and regulations passed since the creation of the

state haye, in effect, taken over all absentee property. The extent of the property administered by the Custodian of Absentee Property and

31 The official Yearbooks refer to acts done by each division and the author has gathered the functions of each division from their activities. iM subsequently also by the Development Authority is more extensive than the sum of the property left behind by individual refugees now in the

Arab countries since in effect a ll ’’abandoned1* property was taken over.

This meant th at a l l the property o f th e Supreme Moslem Council whose members were outside Israel, all charitable societies where the Board of Directors or a majority thereof were outside the country, and all property where the owner of record had absented himself from Israel or had changed his legal residence, even within the country between November

IS bl and May 19^8, became subject to being declared absentee. However, most religious buildings were handled by the Ministry for Religious 32 Affairs since its creation.

The departure of the Palestine Arab refugees le ft many abandoned houses and villages. The first response to this by the Jewish Authori­ t i e s was th e issuance o f an Abandoned Areas Ordinance which s e t up the following rules: an abandoned area was “any place conquered by or surrendered to the aimed forces of Israel, or deserted by all or part of its inhabitants.” The government was given the authority to declare any place as an abandoned area. The Ministry of Finance was given the authority to implement th e Abandoned Area Ordinance, w hile the other ministries were given powers to regulate property banded over to them.33

32 An excellent account of the social effects of the refugee problem and the issue of abandoned property is available in, Don Peretz, op. c i t .

33 Abandoned Areas Ordinance published in the O ffic ia l G azette, 30 June 19^8. iU5

A custodian was duly appointed but much confusion and widespread

duplication of efforts made a revision highly desirable. Whereupon in

1950, the Custodian of Absentee Property was actually reorganized with

the enactment of the Absentee Property Law and was followed a year 3lt later by the creation of the Development Authority.

Both these offices are under the Ministry of Finance which is

charged with the planning of the economy, the planning and collection of

taxes, the control and distribution of foreign currency, the state property and organized savings so that the work of the Ministry is

vital to the economy. Not all the confusion surrounding the transfer

of property has been cleared up and a great deal of work remains to be

done in the compilation of property registers.

Since waqfs can be both private and public, the private waqfs

could have beneficiaries considered as absentees while many waqf build­

ings could fa ll under the term "abandoned areas." Originally property

with one-half or more absentee owners was administered by these two

agencies, however, the rules-have been relaxed to the extent that owners

or beneficiaries of one-half share of property can administer these

properties and some waqf property has been returned to the Ministry for 37 Religious Affairs.

3k All cultivable lands were leased. Initially the Jewish Agency and the M inistry fo r A griculture handled many abandoned and absentee properties.

^ I s r a e l Government Yearbook, 5720, 1959* pp. 236 and 259.

36 A property register was being compiled in 1959.

37 I have not been able to obtain a list of properties released but the Custodian's Office is sympathetic towards releasing such property. lij.6

IV. THE ADMINISTRATION OF WAQFS IN ISRAEL

Although the personnel of the Muslim and Druze Affairs division of the Ministry for Religious Affairs are Jewish in the upper echelons of responsibility there exist? three advisory Muslim committees located at Haifa, Acre and Jaffa to advise the Ministry on the maintenance of religious facilities, the care of the aged, the orphans and the disabled, and on religious education.^® While the committees are advisory bodies to the Ministry they do advise local governments on these problems also.

The membership of each committee is set at five to six members appointed by the Ministry for Religious Affairs and paid a regular salary. Their budget is IL 70,00039 per year which makes the yearly appropriation for each committee some IL 23, 333 which is an adequate sum for the four to five members which actually compose them.

Ordinary repairs to waqf buildings are carried out by the agency which controls those buildings, with the Ministry for Labour performing the repairs for the Ministry for Religious Affairs.

An increase in the number of employees handling waqf functions and activities has occured since 1950, when there were lli6 persons employed consisting inter alia of 67 imams, U m udarrissin, 2b muezzins,

16 attendants, 2 caretakers (qayims) and lU ma'zouns serving in some

73 mosques.By 1955, this number had risen to 201 persons consisting

38 Israel. Misrad ha-hutz, The Arabs in Israel, 1958, p. 35*

39 Ibid., 1955, p. 51u

L.A. Mayer, op. c i t . , p. 77. litf of some 71 Imams, 3 khatibs, 37 muezzins, 27 attendants, 20 caretakers and k3 ma'zouns.^ A slight rise had increased the total number of employees to 205 by 1959 and to 100 mosques in actual use,

Waqf activities have consisted of repairs to buildings, charities, religious education, health activities, and religious subsidies.

Shortly after the establishment of the state, a committee of distinguished Jewish citizens made a survey of waqf places principally of r e lig io u s b u ild in g s. The committee recommended future lin e s o f activity to the Ministry and, as a result, the following places were ii2 repairdds In 19U8 (from August on) the Great Mosque, a t Ramleh; Haram

Sidna A li, near Herzlia; Zawiyat-Banat Hamid, at Safadj Qubbat Abu

Nabbut, at Jaffa; Maqam Abu Hurairah, at Yavne, In 9k9 1 the following buildings were repaired:^ the Great (Jarayna) Mosque, at Haifa; the

Dajani Cemetery, at Jerusalem; Zawiya-t-Nabi Daoud, at Jerusalem, In

1950 the repairs consisted of the Mamillah Cemetery, at Jerusalem, which had a lso been repaired in 19U9; the Nabi Ukashah Mosque, at

Jerusalem; the Cemetery at Affuleh; al-Jazzar Mosque,at Acre; and the fencing of the Cemetery at Acre by the Ministry of Labour,

In this two year period the Ministry carried out also minor repairs to other mosques at Lydda, Ain Kerem, Ramleh, Nes Ziona, Jaffa

^ The Arabs in Israel, 1955, p» 53«

L,A, Mayer, o£. cit., pp, 13-lli,

h3 Ibid., pp, Ut-l5.

^ Ibid., P. 16. litfl and H aifa,^ Grants were made to mosques at Shfar'am, Ilut, Yaffa-t-un

Nasira, Kafr Kana, Arrabat al-Batuf, Jish, Tarshiha, Kafr Qasim and T ireh .1*6

The main emphasis in these two years was on repairs to existing buildings, providing the use of an extra cemetery, ^ and establishing some return to normalcy. Unused buildings were either walled or care­ takers were provided for them, using free quarters in lieu of salary whenever possible, 1 Q After 1950, the advisory committees were appointed and some charitable works were undertaken in the nature of clothing and footwear provisions for indigent children in the Ramleh and Iydda areas and gifts 1+9 for the poor at feasts. By 195U, three projects were started out of waqf funds: a health center at Tirah, a health center at Baq'a al-

Gharbiya, and an orphanage-home for the aged at Jaffa.'’® The two h ea lth centers became a r e a lity in 1955, the Tirah cen ter co stin g some

IL 120,000, and the Baq'a al-Gharbiya center costing some IL 155,000,^

^ Ibid., pp. 13-lU.

^ Ibid., p. 16 et seq.

k? Affuleh cemetery was put in use.

H8 I t i s not quite clear when the members sta r te d receiv in g s a la r ie s .

^ Isr a e l Government Yearbook, 5711+, 1953-51+.

Ibid., 57l6, 1955 which uses previous year's figures.

51 The Arabs in I s r a e l, 1958, 0£. cit., p. 3£, 1 1+9 52 They were run jointly by the Ministry of Health and the village councils.

There exists an orphanage and a home for the aged at Acre under the auspices of the Ministry of Social Welfare,and there is a possibility that it may be turned over to the local Muslim committee.

The outstanding achievement of the Ministry for Religious Affairs has been the repair of al-Jazzar Mosque at Acre restoring it to a beautiful edifice, Israel has also improved access roads to Capernaum, 53 Mount Tabor, the Mount of Beatitude and the Nebi Shu'aib Shrine,

Part of these funds came from the United States government in ICA projects,

A number of scholarships for girls given by the Ministry have resulted in an increase in the number of females available for teaching positions. More than IL 1+7,000 had been spent by 1958 on such scholar- 51, ships. New mosques continue to be built at the average of one or two a year. Most of them are quite small but seem to be adequate for the population they serve.

Funds expended on waqf activities in Israel to date have con- sisted of the following

Repairs to mosques .... . IL 150,000 Grants to village mosques . cost unspecified Tirah Health Center . . . . IL 120,000 Baq'a al-Gharbiya Center , . IL 155,000 Scholarships to girls . . . IL 1+7,000 Muslim Advisory Committees . IL 70,000 per year Muslim Religious (Shari*a) Courts IL 170,000 per year Charitable donations ...... cost unspecified.

52 Ibid., 1955, P. 1+0.

53 ibid., 1958, p. l+l. 51+ ibid., 1955, p. 35. 55 Israel, The Weekly Digest, 26 December 1957, p. 3, 150

V. THE RELIGIOUS COURTS

The religious courts, long the necessary adjuncts of waqfs in

Palestine,have had to undergo some changes with the exception of the

Rabbinical courts which kept their populations and former premises*

The- Muslim religious courts had been located under the Mandate

at Jerusalem, Hebron, Gaza, Beersheba, Jaffa, Ramleh, Nablus, Tulkarm,

Safad,, Haifa, Nazareth, Tiberias, Acre, Jenin, Beisan, and a Court of 56 Appeals at Jerusalem. The old city of Jerusalem, Hebron, Nablus,

Tulkarm, Jenin, and Beisan are now in Jordan; Gaza is under Egyptian

military occupation, while the rest are in Israel. Safad and Tiberias,

although located in Israel, do not havei any Arab population.

Four courts have been reestablished in Israel, located at

Nazareth, Acre, Jaffa and Taibeh. The Qgdi at Acre sits also at Haifa;

the Qadi a t J a ffa s i t s also at Ramleh; and the fourth Qadi s it t in g at

Taibeh serves the “little triangle" of villages in Israel. Beersheba

is the only town not direotly served by a Qadi, but then the Arab urban

population had left the town and the remaining Arabs are Bedouin nomads

resorting more often than not to their own tribal "courts."

The three Qadis who have not heard the case constitute a Court

of Appeals. This arrangement is a practical one since the towns of

H aifa, Ramleh and J a ffa do not require the serv ices o f a fu ll-tim e Qadi

£6 Report by His Britannic M ajesty's Government to the League of Nations on the Administration of Palestine and Trans-Jordan for the year 1930, Colonial Paper No. 59, p. 69. i5 i in view of the small size of the Muslim community in those towns#

(However, this practice also betrays the influence of the Rabbinical

circuit judge). It does not work a great hardship on the Qadis since the distance between Acre and Haifa is less than one-half hour by public transportation and only slightly more than that between Jaffa and Ramleh.

The Qadis are paid the salary of a district court judge and are

appointed for life on good behavior which is the same as the judges of

the district courts. Instead of being under the jurisdiction of the

Ministry of Justice they fa ll under the Ministry for Religious Affairs which recommends the Dayyanim (R abbinical judges) and Qadis to th e cn President of the State for appointment. 1

The budget of the Shari’a courts compares favorably with the budget under the Mandate. It is stated that the Shari’a courts cost

IL 1^0,000 a year which is roughly IL 37,500 per court, or LP 5,357 58 for each court per year. This compares with LP 1,121*. for each court 59 per year under the Mandate.

The courts continue to have the same jurisdiction over Israeli

Muslims with the exceptions that since the early 1950’s no multiple marriages could be contracted, and that since the emergence of the new

£7 Isr a e l Government Yearbook, 5720, 1959, p . 170.

58 XL 37,500 divided by the official rate of IL 7/L yields the figure LP 5,357.

^ The figure LI 7.«978 for the year 1933 is divided by 16 for the 15 Muslim religious courts and the court of appeal yielding LP 1,121*. This is a handy standard for reference, however, courts probably cost more under the Mandate since many services such as stationery were provided by the government and do not appear in the courts’ budget. 152 state the Druze have been recognized as a separate religious community.

Court fe e s are sim ila r to th e Dayyanim courts and judgments are handled through the execution office of the District courts.

The Qadis have the same jurisdiction over waqfs as they had exercised under the Mandate. In a recent case the Supreme Court of

Israel reaffirmed the right of a Qadi to appoint a Mutawallij however, there are so few private waqfs that the issue is not likely to arise very often.

The number of cases carried in the docket are steadily increasing.

In 1952 they passed judgment on 2,173 issues of which 1,017 involved marriages and 163 involved divorces.^® In 195H they handled 1,061* cases in addition to l,02l* marriages, 101 divorces, and 6 annulments x. . 61 of marriage.

At present the Qadis c o n stitu te the h igh est Muslim r e lig io u s functionaries of the state and may result with an increase in respect for Qadis. None of the Qadis have received any training in the civil law so that the religious courts continue to be similar to "equity" or

"conscience" courts.

Since there exists no theological college for Muslims in Israel and under existing international conditions it is not possible to send

Muslimtstudents abroad for training, successors to the Qadis w ill be hard to find.^

Isr a e l Government Yearbook, 57li*, 1953-195U, p . 222.

61 Ibid., 5716, 1955, pp. 288-289.

62 One of the three Qadis passed away in 1958 and until the pub­ lication of the following year’s yearbook no successor had been found. 153

The Christian religious courts exist as they did under the

Mandate with the following changes: there is a reduction in the number of such courts, the reduction in the workload of a number of such courts has made them nominal, and the possibility of appeal from the religious courts to higher religious authorities is not easily feasible.

There are three Greek Orthodox r e lig io u s cou rts, two Greek

Catholic, one Latin Catholic, one Maronite, and one Armenian Orthodox.

In view of the tremendous reduction in the Latin Catholic, Maronite and

Armenian communities, the r e lig io u s courts o f th ese denominations have a ctu a lly become nominal.

There have been no cases involving waqfs before these courts but should an issue arise within the competence of the religious courts, they are presumably still qualified to hear it .

There is no practical way to appeal from the religious courts of

Israel to the Patriarchal courts of Appeal, since these are located e ith e r in Jordan or in Lebanon* however, i t may be p o ssib le to c o n sti­ tute such appeals on periodic visits to Israel by the Patriarchs.

Nazareth, Haifa, Jaffa, and Acre are s till the centers of the Christian religious courts but some confusion exists as to the membership of the 63 courts in view of the small number of litigants.

3 The case of Jida’ vs. Clair Swidan involving the payment of alimony raised so many issues concerning the competence of a Greek C atholic court th a t i t was appealed to the Supreme Court which found the religious court competent to hear it in spite of the fact that the Patriarch in Lebanon had appointed th e members o f the court. V I. AN ASSESSMENT OF WAQFS

The system of waqfs had been built on the basis of religious

separatism. Although non-Muslims could be Mutavallis and Muslim waqfs

could in reality benefitfc the population without regard to religion (such

as a water fountain in a public square) nevertheless, reality was more r ig id than th eo ry . Then, to o , the P a lestin e Mandate had removed what­ ever reliance the non-Muslims had on the Shari1 a courts prior to

Britain’s entry into Palestine.

The events of 191+8 and the subsequent assumption of control over waqfa by the Ministry for Religious Affairs turned the clock back to the Ottoman days with th e su b stitu tio n of th e Jewish Rabbinate for the

Muslim religious authorities in the saddle of waqf affairs. This con­ trol of Muslim religious affairs by non-Muslims has not escaped the

a tten tio n of many members of th e Muslim community and is th e source o f some discontent.^

There are also the usual complaints about low salaries and insuf­ ficient funds being spent on the community. To solve these problems, they would prefer to have the Comptroller General in charge of waqf funds with the local committees in charge of the actual conduct of waqf 65 a ffa ir s .

^ Don Peretz in his book Israel and the Palestine Arabs mentions a disparaging remark made to the Director General of the Ministry for Religious Affairs as Mufti Hirschberg, p. 126.

6$ One member of each local committee acts as the secretary of the Mutawallis. Some discretion is exercised by these committees who bring to the attention of the local governments problems of the Muslim community such as the e x isten ce of indigent persons. 155

The Israel government has, in fact, taken some cognizance of these complaints and has created local committees who, even though they are appointed by the Ministry for Religious Affairs do supervise, the

Mutawallis and exercise some discretion in their activities. Furthermore, a chord of sympathy emanated from the leader of the Ihud group, Professor

Martin Buber, who urged the Prime Minister in 1958 to turn waqfs over to Muslims, appoint Arab intellectuals to higher positions in the 66 government and take the initiative in solving the refugee issue, which may have influenced the government into its decision to increase the authority of the local committees.

There is some indication that the Israel government had no inten­ tion of seizing or controlling any Holy Places, religious sites or buildings (that is, waqfs and some non-waqf property which were used by religious groups) prior to the creation of the State of Israel. Indeed, the Zionist Executive and the Jewish Agency had spent a great deal of time disclaiming any official intention to appropriate these place.^

The inviolability of the Holy Places^® together with a willingness to internationalize them even if it meant the loss of some sovereignty was affirmed. Dr. Chaim Weizman, the first President of Israel wrote,

Norman Bentwich, oj). c it., p. 180. The Ihud group had advo­ cated a b i-n a tio n a l P a lestin e during the Mandate and although had some distinguished intellectuals in its ranks was never an effective poli­ tical party.

^ Frank Manuel, oj>. cit., p. 195j F.H. Kisch, o£. cit.

68 Colonial Paper No. U8, "Mandate for Palestine," Memorandum submitted to the League of Nations, p. 30. 156

"These arguments ^against internationalization^. . . did not run to the 69 Holy Places which we wanted internationalized."

Even as late as 19U8 the proposed constitution for Israel stated that

. . . existing rights in respect of the Holy Places and religious buildings or sites shall not be denied or impaired. The liberty of access, visit and transit to Ho3y Places shall be guaranteed in conformity with existing rights to all without distinction, subject to the requirement of national security, public order and decorum.

No taxation shall be levied in respect of any Holy Place, reli­ gious building or site which was exempt from taxation on the date of the establishment of the state.

No change in the incidence of such taxation shall be made which would either discriminate between the owners or occupiers of Holy Places, religious buildings or sites, or would place such owners or occupiers in a position less favourable in relation to the general incidence of taxation than existed prior to the establish­ ment of the state.

This declaration which has not been adopted was not incompatible with prior official Zionist policy. In essence it guaranteed respect for the status quo with the exception that it also emphasized access and visits to the Holy Places, a main issue during the days of the 71 Mandate e sp e c ia lly concerning the Western o p Wailing Wall.

The declaration was predicated on the premise that peace was more d esirab le than rig h tin g the wrongs o f previous cen tu ries. No community in Palestine could boast of clean hands in the conversion of religious e d ific e s . The Jewish community having been the f i r s t community to lo se

Chaim Weizman, op. c i t . , p. 188.

7° Jeremiah Ben-Jacob, The R ise o f I sr a e l (London: Grosby House, 191:9), p . 20lw

Norman Bentwich, op. c it., p. 192. 157 power in Palestine prior to the twentieth century had lost the places associated with the history of the Jewish people.

The events of 19 U8 changed the basis for the declaration. Open enmity between Jews and Arabs, the tremendous diminution of the Arab population in Israel and the demise of Arab communal organizations removed whatever reasons may have existed for a conciliatory policy.

On the other hand, the need for national unity dictated the appeasement of the Rabbinate.

Except for the Zawiyat-Nabi Daoud, the Cave of Elijah or al-Khadr 72 and the L ion's Cave there has not been any large sc a le conversion o f religious property to Jewish use. One possible exception is the con­ version of the Mamillah Cemetery in Jerusalem to a public park. This conversion has enhanced the beauty of the architectural edifices and makes the inhabitants more conscious o f the h isto ry o f P a lestin e but does not sit well with less secularly minded p e o p l e . 73

Since there exists no accounting of waqf funds in Israel some difficulty occurs in ascertaining the available income or likely expenses

72 Zawiyat-Nabi Daoud i s the tr a d itio n a l b u ria l p lace of the Prophet David and the scene of the Last Supper. Originally a synagogue, it became a church during the Middle Ages and a zawiya administered by the Dajani family under the Ottomans. A1 Khadr is one of the caves of the Prophet E lia s T hesbites at the fo o t o f Mt. Carmel although Muslim legends associate it with al-Khadr of the Evergreen. The Lion's Cave is the basis of a Talmudic legend of a tender-hearted lion who brought dead Jews for burial after the destruction of Jerusalem. These places are the only waqfs in Israel associated with Judaism except for a Greek C atholic Church a t Nazareth which was the s i t e of an old synagogue.

73 Many o f the so ld ie r s o f Sal ah el-D in al-A yubi, Emir Ala' el-Din and possibly some Christian crusaders are buried there. There exists no local waqf committee in Jerusalem since there is no sizeable Arab population. 158 7lt for Muslim waqfs in Israel. By studying the balance sheet and by

applying the historical changes to it, however, some idea of waqf income

can be devised.

Although Israel occupies some 78 percent of the land area of

Palestine some of this land is desert. The distribution of waqfs all over Palestine would probably account for one-half to two-thirds of the waqf income from tithes and rents. It is also known that three out of

seven waqf school centers remained in Israel so that a 3/7 selection might satisfy an evaluation of that source of income. The Sidna Ali waqf, however, remained in Israel as well as the orange growing lands of the Birket Ramadan scheme.

Some of the items on the waqf balance sheet have become superfluous.

In view of compulsory requirement for public education, item 5 is now unnecessary. The contributions in aid of the Haram (item 7), the sale

o f the Haram guidebook (item 8 ), the income from the Muslim Orphanage

and clinics (items 6 and 9) have become extinct by virtue of their existence outside Israel, principally in Jordan. Changed population habits have rendered the income from the Tiberias Baths non-existent

(item 10) while accounting fees and Khairat Mudawara (items it and 5) have become nominal in view of the considerable shrinkage in the population.

The principal items making up the possible income for waqfs are thus rents, tithes and land registry fees, the Sidna Ali waqf, waqfs

7^ See Appendix fo r balance sheet o f the Supreme Moslem Council. 159 mudarissa schools, and the miri land of Birket Ramadan.

It is unlikely that the tithes and land registry fees would ever form part of waqf income again since they had been replaced by the rural property tax in 1935 and the basis subsequently of that income was the agreements executed between the Palestine government and the Supreme

Moslem Council, both bodies now defunct.

There are other difficulties as well in the computation of waqf income. The figures available for the Supreme Moslem Council are based on the year 1935 which in some ways was not a representative year for waqfs, for that year showed a high 2/7 increase over 1933. Rents in

Palestine kept rising slowly until 1936 when a slight decrease occured owing to the world financial situation and the political crisis in

Palestine. A slight increase occured between 1939 and 19^1 after which rent controls froze rents on the 191:1 level.

New buildings could have been erected in the short interval of

19l:6-19U7 but Israel kept the rents restrictions at their previous

19Ul level after the Palestine pound became the Israeli pound exchanged at par value and was very quickly devaluated until it was worth l/7 of its previous value. Then, too, many waqf buildings were located in the older parts of towns which have been demolished, while few legal transactions occured in absentee property necessitating the payment of land registry fees.

Some factors tend, however, to offset these effects. Statutory increases have permitted rents to rise perhaps some sevenfold so that in terms of real value the income from rents did not change because of 160 the devaluation of the Israeli pound. Then, too, agricultural land

commands some rent and was not largely included in the 1935 balance sh eet.

The tables below attempt to reconstruct waqf income based on projected figures without government aid, with government aid with the

addition of tithe income on the basis of IL 1 for LP 1, and on the basis of IL 7 for LP 1.

TABLE I

PROJECTED INCOME WITHOUT GOVERNMENT AID

Low figure High figure Rents & Hikers (1/2) IP 7,656 ------—-- (2/3) LP 10,101* Sidna A li Waqf (100$) 2,261* 2,261* Schools (3/7) 1,956 (1/2) 2,283 Miscellaneous (l/2) 822 (2/3) 1,096 IP 12,698 LP l5,7l*7

Agricultural land at IL 2.5 to the dunum IL 11,250 at IL 5 IL 23,500

Previous reevaluated at 70$ IL 88,886 IL108,239

Grand total IL100,136 11131,739

* Agricultural land is leased by the government at a sum varying between IL 1 - IL 5 per dunum. The median figure of 2.5 is used here as a low figure. See Israel Weekly Digest, 2 January 1958, p. xi. The waqfs had definitely the Birket Ramadan scheme near Nathanya which com­ prised some 1*,500 dunums most of which was favorable for orange growing and thus commanded higher r e n ts.

TABLE II

PROJECTED INCOME WITH GOVERNMENT AID COMPUTED ON THE BASIS OF IL 1 FO RIFT

Previous grand total IL 100,136 IL 131,739 Tithes (1/2) 15,000 (2/3) 20,000 Registry fees (l/2) 6,500 (2/3) 8.612 Grand t o t a l 121,636 l 6o ,3^1 l 6 l

TABLE I H

MOST FAVORABLE INCOME WITH GOVERNMENT AID COMPUTED ON THE BASIS OF IL 7 to LP 1

Grand t o t a l from Table I 100,136 131,739 Tithes (1/2) 10^,000 (2/3) lU0,000 Registry fees jt6,5>00 60.28U Grand t o t a l 2^0,000 332,023

The author is inclined to believe that the high figure of Table I probably represents the government view of waqf income in Israel.

Not only did certain factors decrease waqf income, but some factors tended to lessen expenses also.^ The small number of mosques in actual use and the absence of the greater number of zawaya and takaya reduced the expenses. On the other hand, this is somewhat offset by the care for empty buildings and unused cemeteries.

The law of waqf in Israel has not been changed with few exceptions.

The p rovision s fo r is tib d a l and i.jratayn which had resided in th e

Supreme Moslem Council, whose unanimous consent was required b efore any such action could be taken by the Qhdis, do not reside anywhere at the present. The government's powers for requisitioning and expropriating property of all types, however, do provide an alternative solution.

The following items of expense no longer apply: the Moslem Orphanage, clinics, and funds for the haram accounting for 1/7 of the Palestine Waqf Budget. Reductions could also be expected in payments to Mutawallis by reason of absenteesj khairat mudawarat payments at feasts and provident funds by reason of a much reduced population.

The Beha'is desire to purchase or exchange some land for one of the Holy Places surrounding the life of Bhha'ullah but are unable to do so since the Qadis have neither the power of i.jratayn nor of istibdal. 162

The administration of waqfs, except for a brief time when the

Supreme Moslem Council was e le c tiv e , had at le a s t sin ce th e Ottoman days been run by the government so that the absence of elected committees is hardly a novelty, however, the administration by non-Muslims is some­ thing else again.

What has drastically changed is the emotional attitude concerning the system of waqfs. The earlier legal protections surrounding waqfs in matters of inalienability had largely disappeared by the end of the

Ottoman regime; however, the extreme reluctance of the Palestine govern­ ment to delve into the emotionally explosive issue of waqfs, in fact provided many of the previous safeguards against expropriations for waqfs which had existed before the Palestine reforms.

An example of t he ignorance and lack of interest surrounding waqfs is the recent conversion of a Latin cemetery at Haifa into commer­ cial property. The means used were simple enough. The agent of the

Carmelite order, merely declared that the community had unregistered miri land and, after the payment for registration, sold the property and removed the bodies to another cemetery. In the land law it is clear that Article 33 of the Land Code forbids burial on miri property so that cemeteries must be dedicated mnlk or waqf, however, both the Land

Registry and the Health Authorities allowed this brdach to pass un­ detected. Then, too, there was the case of Greek Orthodox waqf land which was expropriated in Jerusalem for the purpose of creating a park.

One of the greatest problems facing any waqf administration in

Israel is the future disposal of disused waqf property. If this should be done, a sizeable increase in the capital of waqf funds can be expected.

One of the major faults of the waqf administration was the dissipation of its energies in duplicating many functions of the state, such as public education for example, so that a restriction of waqf functions may be desirable.

A review of the recent changes in the waqf systems prevalent in the Middle East is helpful in comparing the waqfs of Israel to the waqfs of the surrounding countries and in helping to arrive at solutions by analyzing sim ilarities, differences and trends in the development of w aqfs. CHAPTER VI

COMPARATIVE DEVELOPMENT OF WAQFS IN

THE SURROUNDING COUNTRIES

I . SIMILARITIES AND DIFFERENCES IN THE

WAQFS OF THE MIDDLE EAST

The h isto ry of the Middle E ast p rio r to the Ottoman Reforms in the nineteenth century gave the area many similar if not identical institutions, The strategic location of the Middle East between

A frica, Europe and the in te r io r o f A sia made i t a d esirab le prey fo r any ambitious power intent on territorial expansion*; ; th at Alexander the

Great, Rome, the Byzantines, the various Arab and Muslim Caliphates held the area at one time or another in history.

The Ottoman Empire which was the l a s t major power to have control of the whole area kept the countries of the Middle East united for four hundred years (l£l7 - 19l 8 ) and provided in the process common methods of adm inistration, law and adjudication.

The adm inistrative d iv isio n s o f th e Ottoman Empire help to explain some of the sim ilarities in waqfs. Until 1887-1888 Palestine, Syria,

Lebanon, and Trans-Jordan formed part of the vilayet of Damascus, This vilayet was divided into sanjaks, qazas, nahiahs and kura for administra­ tive purposes. The governor of a vilayet was called a Vali who was

1 By my definition of the Middle East, Iran which had not formed part o f the Empire i s excluded and so i s A fghanistan which i s c la s s ifie d as South Asia, 166

The Shari’a was the basis for the law of waqfs as supplemented by fatwas issued by muftis, the length of the duration of Muslim law gave rise to various commentaries on the laws and many different fatwas, so that in actuality local differences governed the rules of waqfs; however, the Ottoman reforms had the e f f e c t o f bringing in some degree of uniformity.

Since the Ottoman reforms were also accompanied by changes in the political structure of the Empire, some geographic entities in the

Middle East drew cl&ser regarding waqfs while others developed differences.

Palestine, Trans-Jordan, Syria, Lebanon and Iraq remained part of the

Ottoman Empire u n til th e f i r s t World War thus b en efitin g from the new land laws, the requirements for the registration of land, and attending 7 reforms.

On the other hand, Egypt had become, in fact though not in theory, independent from th e Ottoman Sultan at le a s t sin ce 1831; th e Persian

Gulf Sheikhdoms had come under th e sway o f the B r itish Empire which left issues of internal relations to the individual rulersj North

Africa had come under French control; Cyprus was leased by the British government from the Sultan; and the Arabian Peninsula wqs Ottoman only Q nom inally, having Ottoman garrisons in a few army barracks.

The countries of the Middle East thus fall under different

7 See Chapter III, "The Ottoman Reforms.” Q 0 A good general account may be had in George Lenczowski, Middle East in World Affairs (New York: Cornell University Press, 1958)7 2nd e d itio n . 167 categories regarding the Ottoman waqf reforms. The group which remained in the Empire was the recipient of the reforms; the Arabian Peninsula remained generally pre-Tanzimat while those countries under British or

French direct rule were the recipients of different kinds of reforms.

Egypt, however, travelled a path separate from the others.

Even though the law of waqfs applied equally to all countries in the Ottoman Bnpire, nevertheless, differences existed in regardr to waqfs between different countries arising from economic and demographic patterns and from the degree of reform actually carried out.

Egypt, Syria, and Turkey were relatively wealthy countries with large cities and with wealthy families of long standing. As a result,

Cairo, Damascus, Alexandria and Constantinople could boast of many large and important family waqfs. It is almost axiomatic that if a person did not own anything he could not dedicate anything. Then, too, the concern which Sultans felt for their subjects, whether out of real pity or vainglory, was easier to observe if itr. was located at their capitals, so that for this reason Egypt, ^yria, Iraq and Turkey can boast of many extensive and, beautiful buildings. Palestine being independent only in the Jewish era could never make the same boast.

The waqfs in Turkey were valued at LT 50 Million in 1925> with an income of LT 3.5 Million in 1928; Algeria had one-half of its cultivable land as waqf, Tunisia had one-third, and Egypt had one-eighth.^

The demographic pattern of these countries also provided some

9 Maurice Gaudefroy-Demombynes, Muslim In stitu tio n s (London: George A llen and Unwin, 1950), pp. lU5-ll*6, 168 differences. Few problems were caused by religion in the Arabian Penin­ sula, whereas the minorities were a source of many problems elsewhere in the Middle East. In general, the Christians and the Jews fared better than the heretical sects of Islam. While minor differences were recognized as existing between the four main sects of , the

Shi * a in Iraq and the Druze in Lebanon, Syria and northern Palestine did not fare as well. In Iraq, the Shi‘ascould not resort to the mechanisms of waqfs; in Syria, the ’Alawas were not recognized as a separate m illet, as was also the case with the Shi’a of Southern Lebanon.

On the other hand, the Druze in Lebanon obtained some degree of autonomy.

Given the large size of the area and the relatively slow pace of communications there arose some differences in local practices and expressions. In Egypt, the term Nazir is used, while Mutawalli is pre­ ferred in Palestine, and Wakil is preferred in North Africa. Waqfs ahli and dhurri are used in different places; habus is sometimes used elsewhere, and i.jratayn is very often used interchangeably with hikr.

Muqataa1 waqf is another Palestinian preference.

Each of the Middle Eastern countries has some Holy Place or another but few appeal across national lines as widely as the Palestinian waqfs. Iraq has Kerbala with its appeal to all Shi*a Muslims; the Holy

C ity o f Hasbaya in Lebanon appeals to some Druzes; and many important

Muslim fig u re s are buried in Egypt. The tomb o f Salah al-D in at

Damascus is very well known also; however, the Holy Places in Palestine appeal to the religious among Christians, Jews, and Muslims and the episodes involving them has written many a smaller chapter of Palestinian 169 h isto r y .

Along with the Ottoman reforms, waqf reforms in Egypt and the

North African countries took place almost simultaneously. Muhammad Ali

Pasha, the Albanian soldier, became Khedive and actual ruler of Egypt in the early nineteenth century, and his son, Ibrahim Pasha, helped him to carry out his reforms. A decree in 185U, called the Irada Saniya, forbade the creation of further waqfs out of agricultural land. Many waqfs were simply expropriated although, on the whole, little was done to change the theory of waqfs.'1'®

The French in the North African countries under their rule contented themselves with changes in the overall administration of waqfs together with easing the lot of the long term tenants of waqfs by per­ mitting them to purchase the waqfs. Thus, in 1830, the French govern­ ment in Algeria decided to turn waqfs into state property and followed this measure, in I8 U4, by permitting the tenants to purchase the waqfs 11 over a long period. In 1873* all waqfs were made subject to French law.

In Tunisia, a jam’iya was created in I87 I* to handle waqfs and by

1898 the administrators of waqfs were permitted to sell them as they pleased. In , the reforms were more conservative and the govern­ ment contented itself with the creation of a central authority called 12 Mla direction du habous" in 1912 which by 1915 became a w azirate and

1° The Khasqi Sultan waqf in Jerusalem was confiscated by Ibrahim Pasha as w ell as waqfs in Siyria, Lebanon and Egypt.

1 1 Encyclopedia of Islam (French edition), p. 1159.

12 Ibid., p. Il 60. 170 by 1936 became a m in is tr y .^

The differences concerning waqfs from the first World War arode

Put of Ahe different dates of the fa ll of the constituent portions of the Ottoman Empire. The important Ottoman law of 1917 called the Family

Law which regulated many of the provisions of the Shari'a was never applied in Iraq and Trans-Jordan, because they were under British military occupation at this time.

The division of the Middle East into separate political entities under Great Britain and France left these countries with some common problems. The Hejaz Railway, which was a waqf for the benefit of the pilgrims to Mecca, had lines running through Palestine, Syria and Trans-

Jordan. This line was severely damaged in the military operations by

Colonel T.E. Lawrence and oth ers and subsequently never r e a lly operated at a profit.

Both the governments of Palestine and Syria operated existing portions of the Hejaz Railway within their territories without any connections with the waqfs.

Some waqfs for the Holy Cities of Mecca and Medina also existed in the Arab world, with the exception of Palestine which had Holy Places o f i t s own. The new countries of th e Middle East were relu cta n t to send the income from these waqfs to the Arabian peninsula.

The influence acting upon the separated countries of the Middle

East a fter the f i r s t World War were a lso v a ried . Syrian and Lebanon

Revue des eludes Islamiques, 1953, pp. 62- 63. 171 were under French mandate and in time were influenced by the French experience in North Africa. In fact, many of the waq£ provisions sub­ sequently adopted were almost identical with the North African provisions.

Palestine and Iraq, on the other hand, were heavily influenced by

British experience although the specific British influences varied at times. In Iraq the British military authorities were under the

Office branch of the Colonial Office so that there existed some Indian influences. On the other hand, the main influence in Palestine in the early years was Egypt-Sudanesej however, in later years, many of the officials serving in Palestine came with previous experience in the

Indian Peninsula and the influences tended to change accordingly.

Since th e demise o f the Ottoman Empire in the f i r s t World War waqfs have taken separate paths of evolution in the Middle East* Permeating the whole area has been the liberalizing influence of Muhammad Abdo who counselled on the use of i.jtihad for the selection of the best opinions regarding waqfs. Even the most rigid proponents of the system such as

Sheikh Bakhit of Egypt have been favorable to such a method of improvement.

The opponents of the system have very often been influenced by social considerations such as the degree of land held in mortmain and the dislike of the use of waqf to avoid the canons of inheritance or because of the feeling that the religious elements were hostile to

^ The members of the military government in Palestine came from the Egyptian Expeditionary Force composed of functionaries resident in Egypt and the Sudan whereas after 1921 the Colonial Office assumed control of Palestine and many members of the Palestine government had previously served in India. 172

reform and must be stripped of power partially through a drastic reform

of waqfs. Turkey may fa ll in the latter category while the other 'Arab

countries may fa ll in the former categoiy.

Very important to waqf reform in the Middle East has been the

courage obtained by one country through the reforms of another. By and

large Egypt has been the innovator of waqf reform although its reforms

were not always the most radical.

For the sake of simplicity a brief survey of waqf reform in the

Middle East follows on a country by country basis.

IX. WAQF REFORM IN THE MIDDLE EAST

With the exception of Turkey, waqf reform in the Middle East has

been slow and lab oriou s. U n til th e end o f the second World War most

changes were concerned with the administration of waqfs and some of the

provisions of the Shari1a on which waqfs depend.

Turkey has provided the extreme example of waqf reform and

represents the school of thought fchich stands for outright abolition of waqfs. One year following the establishment of the Turkish Republic,

the Administration of Pious Foundations (Evkaf I dare si) 192V, was

established to manage waqf holdings. The functions of the waqfs con­

tinued without any major changes until 1926 when important new step s were taken.

In th a t year, a l l schools p reviou sly managed hy the Evlcaf were

turned over to the Ministry of Education, and some of the waqf 173 15 buildings were sold, distributed to peasants, or given to municipalities.

The Directorate General of the waqfs was placed under the Prime M inister's

Office and restricted itself with the care of mosques and museums. When­ ever possible public waqfs such as mosques and cemeteries were handed to local communities, that is, the municipalities. The Directorate

General was transferred to Ankara in the late 1930's and many thousands l 6 of waqf documents were handed over to Ankara University. '

In the Arabic speaking part of the Middle East, the main critics of waqfs who stood for abolition of the system and imitation of the

Turkish reforms clustered around Alluba Pasha in Egypt while the anti­ abolitionists were led by Sheikh Bakhit, also in Egypt. The two parties were so evenly matched in strength that little was actually done. Out­ side Egypt, however, criticism was generally levelled at the mode of 17 administration. 1

The United Arab Republic (Egypt)

A Muslim magistrate stated that it was unthinkable a generation ago to even suggest changes in waqf structure and administration but IL8 change it did. Although Egypt was not the first Arab country in the

Middle East to radically change waqfs (that privilege must go to Syria)

Maurice Gaudefroy-Demombynes, Muslim In stitu tio n s (London: George A llen and Unwin, 195>0), p. II4.6 .

16 I am indebted to Dr. Kerim K. Key for elucidating the references to waqfs in Turkey.

17 J.N.D. Anderson, The Muslim World—Recent Developments in S h a ri1 a Law, V ol. XLII, p . 2!?7.

18 William Ernest Hocking, o£. c it., p. 87. 17 U it did very often, however, take the initiative and, since the overthrow of the monarchy by the military junta, it has actually taken the lead in waqf reform.

As is usual with quasi-religious institutions regulated by the

Shari'a there were opposing tendencies to abolish and retain waqfs. A middle party emerged in 1932 which preferred to severely limit or abolish family waqfs while retaining public waqfs. Its recommendations were adopted by the Egyptian Parliament in 1936 but the monarchy refused to 19 approve these contemplated changes.

Except fo r some changes in th e Sh ari'a, such as more strin gen t requirements for registration of lands and marriage, expediting the exchange of uneconomical property, and other administrative improvements, l i t t l e was a ctu a lly done u n t il 191+6 when p erp etu ity was removed as a condition fo r the crea tio n o f waqfs. Temporary and permanent waqfs could henceforth be created but a ll family waqfs were limited to sixty years or two generations from the waqif's death. In addition, a greater choidse in the selection of the terms of the waqf, its termination, 20 revocation, and retention of controls were given to the founder (waqif).

The law enacted in 191+6 was a good beginning but fe ll far short

J.N.D. Anderson, o£. c it., p. 2^7. See also, Revue des etudes Islamiques, 1929, p. 77; l£ probleme des wakfs en Bgypte by A. Sekaly for an excellent summary of waqf problems and budgets until 1929. A drastic fa ll in real estate values was used as the excuse for the failure to abolish family waqfs.

^ Law No. 1+8 o f 12 June 191+6 discussed by Henry Cattan w riting Law in the Middle East (Khadduri and Liebesny, eds.) and also in J.N.D. Anderson, o£. c it. 175 of an outright abolition of family waqfs. Waqfs had increased so rapidly in the tw entieth century in numbers and s iz e th at th ey w ithheld a large slice of land from possible redistribution to the cultivators. This fact apparently did not escape the attention of the revolutionary authorities who used the complete abolition of family waqfs for the land 21 redistribution scheme.

The drqstic step was taken in 1952 when all non-charitable waqfs were abolished. Mixed waqfs with a charitable and non-charitable pur­ pose were deemed for the purpose of the law as non-charitable waqfs with the specified charity receiving a share of the principal as a bene­ ficiary. ^ The property was settled on the beneficiaries if the waqif were dead but if he were alive he received right of reversion. No non- charitable waqf could be created in Egypt after the passage of the law.

This law w ill, of course, take a long time in its implementation.

Once it is implemented, it w ill turn waqfs in Egypt into essentially religious foundations not very different from church property, since ecclesiastical property is not taxed anyway. The provisions of istibdal have taken some of the vices out of waqfs especially in the case of inalienability.

The M inistry of Waqfs s t i l l ex ercises sup ervision and management of the waqfs in Egypt; however, all Shari*a courts are now state courts applying the religious law of the community so that a greater

See Sti'. Antony's papers No. 1+, Waqf Reform in Egypt, pp. 61-76 where Professor Gabriel Baer shows that the abolition of family waqfs helped the land redistribution program.

22 Law No. 180, September 1952. 176 23 harmony may be expected in the future regarding a uniform law for waqfs.

The Syrian Arab Republic

Under Ottoman practice, three committees had participated in waqf

a f fa ir s . At th e qaza le v e l, there e x isted a committee composed of the

Director of Waqfs (Mudir al-Waqf), the Mufti, and three local notablesj

at the sanjak level there was a religious council composed of the Mufti

( e x -o ffic io p r esid e n t), a consultant elected by the Ulama’ , and a representative of the Shari’a courts in addition to three other members.

A third committee composed of the Mufti, the Qadi (ex-officio president), and the Director (Mudir) of Waqfs investigated the accounts of the 2k Mutawallis.

The Syrian Constitution given by the League of Nations stated th a t Muslim waqfs belonged e x c lu siv e ly to the Muslim community and were 25 to be administered by elected Muslims sitting in councils.

The French Mandatory Government borrowed h eavily on i t s experience 26 in North Africa and reorganized waqf affairs on 2 March 1921. Under the new arrangement a High Council, a General Committee, and an Execu­ tion Office all of which were under the Controls Generale des wakfs

Mussulmans and together administered a ll waqf affairs.

23 Some opposition has been shown to the assumption of control over the religious courts by the state. See Nadav Safran, Muslim World, Vol. XLVTII (January 1958), pp. 20-28.

^ Revue des etudes Islamiques, 1953* pp. k6-k8.

^ Norman Bentwich, The Mandates System (London: 1959), p. 8k.

26 Arrete No. 723 of 1921. 177

The High Council or Conseil Superieur, consisted of the Presidents of the Shari’a courts of Beyrouth, Damascus, Aleppo, and Lattaqia; a

Director General of Waqfsj and one delegate from each city. This council was placed in charge of the administrative control of waqfs.

The General Committee, or Comite Generate, consisted of the members of the High Council, the Mudirs of waqfs, and the delegates from the liwas and the qazas. Its function was to approve budgets and verify accounts.

The Execution Office carried out any decrees in connection with the litigation of waqf suits.

The French High Commissioner appointed both the Controller

General and the consultant (delegue or conseiller). This left the

Director of Waqfs (Directeur or Chef de Service) and the President of the High Council as the only important officials who were elected.

The Syrians complained to the Permanent Mandates Commission that

Muslim waqfs were being subjected to non-Muslim control because the

Director General was a French national and the Syrian government had retained control of the Hejaz Railway waqf. The French government con­ tended that the Director General was a French convert to Islam and the 27 matter was dropped by the League. 1

The French administration hoped to reexamine waqfs so that the many waqfs created under Prince Faysal’s short administration and bene- fitting some 30,000 individuals would be voided. Apart from this issue

27 William Ernest Hocking, op. c it. , pp. 319-321. 178 ijara wahida waqfs (rented waqfs but in Syria on long term leases), ijrafrein waqfs and muqataa’ waqfs were mainly liquidated by giving the tenants and beneficiaries the right to purchase them. It was thus hoped that small and somewhat uneconomical waqfs would be liquidated and placed on the market free from the dead hand of inalienability, while at the same time the Waqf Administration would thus be dealing with fewer waqfs and could increase its capital from more efficient operation.

A fter i t s independence from France in 19U5, Syria became a pioneer in radical waqf reform in the Arabic speaking portions of the

Middle East. In 19U9, three years after the Egyptian Law of Waqfs in

191*6, Syria took the giant step of abolishing existing family waqfs and forbidding the creation of any non-charitable waqfs in the future.

Since it was anticipated that this process would take quite some time, the Mutawallis were divested of the control of such waqfs and a waqf administration forming part of the government structure was empowered to carry out the reforms.

The Waqf Administration was charged with several rules. Family waqfs were to be partitioned among the beneficiaries even though the waqf may have had a charitable purpose. Should the waqf not be capable of partition then it would be sold at public auction and the realized sum divided as follows:

1. In a mixed purpose waqf (mushtarak) Inhere there is a charit­ able remainder, E> percent of the amount was to go to the specified charityj 10 percent 66 the government for the "national defense," and the rest of the amount to be divided among the beneficiaries.

2. If the share of the charity is specified then a proportional share was to be allocated to the charity out of the principal stun,

3, If the charity's share had not been specified in the waqfiah 28 then a stun of 5-20 percent was to be allocated to it,

Syrian land reforms have very often been "paper reforms" due per­ haps to the inability of the central government to carry out its programs however, since the trend of waqf reform in the Middle East is for the

abolition of such waqfs, they may actually be liquidated yet,

Lebanon

Lebanon has had two in flu en ces working oji i t in waqf a f fa ir s .

During the Ottoman period, especially after the administrative reforms

of 1887-1888, the vilayet of Beyrouth included northern Palestine, but

a fte r the f i r s t World War Lebanon came under a French mandate, so th at

u n til the second World War, Muslim waqfs were adm inistered in the same way as in Siyria.

Since Lebanon is a multiplicity of small minorities, waqf affairs

are d ecen tralized leaving much autonomy to the heads of th e r e lig io u s

communities. The Lebanese Law of the Organization of Shari'a courts of

19U3 and the waqf law o f 19h7 govern waqfs.

There exists a department of waqf affairs in the Lebanese govern­

ment mainly for the Muslim waqfs (Sunni and Shi'a) but much discretion

is given to the Shari'a courts and the local Muftis in prescribing

regulations.

28 Law No. ?6 o f 19k9 A.D. published in the O fficial Gazette, 19h9, p* 1317 and decree No. 97, p. 3379, 180

A fter Egypt passed i t s Waqf Law of 19U6, Lebanon follow ed s u it

in 19U? revoking p erp etu ity , ir r e v o c a b ility , and in a lie n a b ility mainly

in regardt to family waqfs.

The scope of property which can be dedicated as waqf was broadened

to include movable and fungible property. This followed the Maliki

practice of allowing most types of property whether real or personal to

be dedicated; however, all family waqfs were limited to two generations—

the succession to a share of the estate of a deceased while the other

beneficiaries were alive to be included in the computation of a genera­

tion. Partition of waqfs was permitted and waqfs which were too small

or dilapidated were to be dissolved.

Certain conditions not in the public interest such as restrictions 29 on marriage if placed in the waqfiah would invalidate the waqf,

Jordan

Jordan was formed after 191+8 from the portion of Palestine which

was occupied by the Arab Legion during the crisis of 191+8-191+9 and from

the territory across the Jordan River previously known as Trans-Jordan,

There were two sets of laws and administrations in the Kingdom

of Jordan. In Cis-Jordan, Palestine Laws and regulations were the basis

of the land law and the administration of waqfs was conducted by the

Supreme Moslem Shari'a Council; however, Trans-Jordan s till relied on

the Shari*a and Ottoman Laws and had never adopted the Ottoman Family

29 A. discussion of the Lebanese Organization of Shari*a Courts Law o f 19h3 can be found in J.N.D. Anderson, o£. cit., Vol. XLI, p. 1+0 and th e Waqf Law was passed on 12 March 191+7. 181

Law of 1917. The administration of waqfs was centralized in the hands of the government of Trans-Jordan.

In the period of 1951-1952 this state of affairs was terminated

and unified provisions were although in reality the Supreme

Moslem Council had r e a lly died much e a r lie r .

The experience which Palestine had with the Grand Mufti of

Jerusalem, Haj Amin al-H u ssein i, had l e f t i t s in d e lib le mark on th e

composition of the committees and councils dealing with waqf affairs. 30

Although the late King Abdullah had appointed Sheikh Hussam Meddin

Jarallah as Mufti of Jerusalem in December 191+8, ^ nevertheless, Muftis were replaced by Qadis on the committees and councils dealing with waqf a f fa ir s .

There has been a liberalization of waqfs in the sense that women could now be Mutawallis and non-Muslims were guaranteed the independence of their waqfs by the Jordanian Constitution of 1952 thus reversing the trend under the Palestine Mandate of restricting waqfs mainly to the

Muslim community. On the other hand, s t r ic t e r co n tro l has been ex ercised over the accounts of Mutawallis and the qualifications for appointments,-^

30 The Husseini supporters have not fared too well in Jordan. Haj Amin Husseini is still in exile, Jamal al Husseini lives in , Musa Alamy lives in retirement whereas critics of waqfs in Pales­ tine such as Mr. H. al-Budayri, Anwar Nusaibah, Hasan Dajani and Jawelat Kazimi (counsel for waqfs) are in the Waqf Administration

By this time the political influence of Haj Amin had waned considerably. See Folke Bernadotte, o£. cit. , pp. 8-9,

32 The Constitution guarantees minority rights per Articles 105, 107 and 109. 182

There is a council at composed of the Controller General of

Waqfs, the Chief Qadi and two local notables, while local committees are composed of the local Qadi, the local director of waqfs and two n o ta b les.

The duties of these personnel are divided as follows: the directors of waqfs administer the revenues, appoint the agents, and the personnel; the Controller General approves or disapproves the waqf budgets; and the council and the local committees control the location 33 of waqfs, draft the waqf budgets, and carry out all necessary r epairs.

There are no Jewish communities living in Jordan with the possible exception of a few Samaritans living at Nablus who are autonomous. The

Christian communities operate in the same wayyas they did during the

Palestine Mandate, especially since the heads of the religious communi­ ties in Palestine were located in the Old City of Jerusalem which is now in Jordan. The conspicuous absence of any Christian waqf councils continues to be marked although charitable societies perform the func­ tions sometimes exercised by the Muslim waqfs for the Muslim community.

There has been an absence of any discussion in Jordan regarding the abolition or restriction of family waqfs. This is not due to any hostility to reform but because the existence of family waqfs in

Palestine or in Jordan never assumed threatening proportions because it neither took land out of circulation nor were there enough to create a

33 The Law on Waqfs (organization) No. 25/191+6; Law No. 2/1951; Regulations No. 1/1952 and the Constitution of 1 January 1952 are the basic legal instruments on waqfs in Jordan. They are discussed briefly in Revue des eludes Islamiques, 1951, p. li+ and Revue des etudes Islamiques, 1953, p. lU. 183 financial problem. Agriculture land which was miri could not be made waqf automatic ally in Palestine and nothing has been done in Jordan to

ohange that provision. Such agricultural land as existed as mulk (and thus capable of dedication) was located mainly in the Jaffa-Ramleh-Ludd

area and in the Gaza Strip, both of which are located outside of the borders of Jordan.

A host of waqf problems remain in Jordan. Some of the waqfs in

Cis-Jordan .rev i .ual;/ owned land in what became Israel. These two

ancient waqfs were the Tamimi and the Abu Madyan waqfs which owned land

around Nathanya and Ain Kerem near Jerusalem respectively.^ Some

funds have reportedly been raised in North Africa for the support of

Abu Macfyan and Kuwait i s reportedly trying to give Jordan some money

for the construction of waqf schools and hospitals.

On the other hand, some of the waqfs in Jordan such as Hebron

and the Haram al-Sharif are equally sacred to Jews so that the Jordanian waqf lands in Israel and the Holy Places sacred to Jews in Jordan may 36 be the subject of some quid pro quo settlement in the future.

Brief Survey of Other Waqfs

Since the Shari'a provided for the system of waqfs and a ll Muslims

^ 3^ A list of the Abu Madvan Waqf lands is given in Revue des etudes Islamiques, 1951, pp. Ilk-120.

3^ Only preliminary discussions have taken pi, ace with JB 1 m illion being the sum of which an unspecified portion would go to the waqfs. See Jordanian press September and August 1961.

36 See previous pages in Chapter V on division of Palestine waqfs in 19k8-19k9. 18U are subject to the revealed law as interpreted throughout the ages then theoretically waqfs should exist in all countries which have Muslim populations. This, however, does not conform with reality.

Waqfs do not exist in some countries and vary considerably in their details regarding the mode of administration, the degree of centralization or decentralization, and even their existence under the name of waqfs in others. 37 There are no waqfs in the USSR, Vietnam, Cambodia and even though there are sizeable Muslim populations in those countries.

It appears that the Russian Czars confiscated the waqfs in the areas which came into their possession, while the Bolsheviks abolished them as a system of law. On the other hand, waqfs never took hold in

Vietnam, Cambodia and China.

Indonesia is in a class by itself where waqfs do not exist as such but analoguous institutions performing waqf functions are administered by penghulus (directors of mosques) and subject to the bupatis (officials of the M i n i s t r y of Agriculture).®®

Afghanistan is an example of a country where the system exists 39 but its property has been largely confiscated. In this respect it resembles the Egypt of Muhammad Ali Pasha to a certain extent but the confiscations in Egypt were never as extensive as in Afghanistan,

37 Revue des etudes Islamiques, 1953, pp. 1+3-U5.

38 Z£id«> p . h3e

39 I b id . , 1951, p . 13. 185

India, Pakistan and the Sudan were prior to their independence under British rule and therefore bear sim ilarities to waqfs in Palestine.

In the Sudan, the Grand Qadi was given considerable discretion to make

regulations, decisions and procedures in accordance with Hanafi jurists^® which may explain the autonomy subsequently given to the Shari'a courts

of Palestine. In the Indian Peninsula waqf councils exist in each

province and there is a general waqf council for the whole of India, k l whereas Pakistan has developed a ministry in charge of waqfs.

Greece and Yugoslavia are the only European countries which have waqfs (Turkey is considered part of the Middle East). Not much is known of Muslim affairs in Yugoslavia outside of the fact that mosques

are s till standing. Greece has no central waqf administration but there exists elected committees for each Mufti to dispose of waqf

affairs^ however, the Muftis' actions are subject to the governors

i kz gen eral.

Elsewhere the waqfs are either administered as part of state affairs or are decentralized:

1. Libya has provincial administrations in charge of waqfs.^

Per Article 53 of the Sudan Muhammadan Law Courts Organiza­ tion and Procedure Regulations 1915 and Article 8 of the Sudan Muhammadan Law Courts Ordinance discussed in J.N.D. Anderson, op. c it .. Vol. XLI, January 1951, pp. 37-39.

^ Revae des etudes Islamiques, 1953, p. U5. Many of the pro­ visions of the Waqf Acts are almost identical with the provisions governing the Supreme Moslem (Shari'a) Council in Palestine.

k2 Ibid., p. 56.

^ Ibid. , p. 55. The Italians reorganized the administration of waqfs into 2 provincial administrations in 9 January 1929 located at Tripoli and Misurate. The waqf councils were nominated by the adminis­ tration and the system was retained by Great Britain. See also Revue des etudes islamiques, 1951, p. 22-23. 2. In Spanish Morocco and Morocco, a Ministry of Waqfs handles waqf affairs.^

3. In Somalia, there is no central waqf authority but local waqf authorities exist.^

It. In Nigeria, waqf control is local but some Muslim Sultans control them in their areas. ^

5. In Yemen, the waqfs are regulated by the Bayt ul-Mal (the

Treasury) with the Imam appointing the officials.^

6. In Saudi Arabia, a waqf administration exists largely in the

Hejaz with a chief council at Mecca and local councils at Jedda, Medina, and Taif.^8

7. In Cyprus, waqfs exist but are locally administered.

8. In Iraq, a M inistry o f Waqfs has the cen tra l waqf adm inistra- !i9 t io n and i s supported by committees at Basra, Baghdad and Mosul.

Family waqfs have reportedly been abolished by the revolutionary regime of 1958 but little information regarding them has come out of Iraq.

9. Iran has similar provisions with a Ministry of Pious

Ibid., p. 62.

^ Ibid., p. 6 3 . 187

Foundations (waqfs) and independent Mutawallis.

In terms of waqf doctrine, Israel, Jordan and Cyprus appear to be closer to the traditional concepts of the Hanafi Rite especially since waqfs ahli (family waqfs) are still in existence. Syria, Iraq, Egypt and Turkey which were the other Hanafi Rite countries of the Ottoman

Empire have abolished family waqfs and are recodifying the other pro­ visions of the Shari'a. Lebanon has adopted many provisions of the

Maliki Rite, while North Africa has been largely of that persuasion.

There is a great deal of variance in the administration of waqfs.

In the purely Islamic countries of Yemen and Saudi Arabia they are still state functions, but in the more secular states of the Middle

East, they are either administered by the state separately or commissions and cou n cils have some d iscre tio n .

There is unequal pressure for change depending on the extent of waqfs. In Egypt, Iraq and Syria they are fairly important but appear to be less so in the other countries of the Middle East.'*®

Iraq's waqf budget was 1*72,000 ID in 1951. See Revue des Etudes Islamiques, 1951, p. HO. Syria had more than LE2 m illion while Egypt had some LE 1*, 163,180 of waqf income in 1951. The waqfs in Egypt were before the 1952 reforms: waqfs ahli ■ 538,037 feddans waqfs khairi = 5U,6U5 feddans royal waqfs » 75,000 feddans ^ of a total of 5,9l*8s12l* feddans. See Revue des etudes Islamiques. 1953. p p . 53-5!*. ------CONCLUSIONS

Prior to the Ottoman Reforms of the nineteenth century the role of the state in society wqa more limited in scope than it has ever been since. If the state indulged in public education or social welfare activities at all, it was done in the nature of subsidies or gifts to local religious groups by the Sultans and almost never on a systematic b a s is .

The Christian clergy, the Jewish congregations and the Muslim religious authorities took care of the education and welfare of their communities as best they could. All of these groups were dependent on the munificence and charity of individuals in the way of endowments.

The result of waqf by charity has been an unevenness of waqf in s titu tio n s w ith some p la ces more h ea v ily endowed than others and an uneven distribution of functional institutions (one city would have a hospital while the other cities in a particular area would not). Then, too, the towns received the bulk of the endowments, and whereas they served the largest groups of people that could be found in any one place, only a small proportion of the population could be served by a concentration of waqfs in the towns and cities.

The theory of waqf became so well developed with the development of the Shari'a that injunctions regulated the minutiae of the system.

Gompared to the world of the tenth century, waqfs were hundreds of years ahead of their contemporaries in the non-Muslim world. It seems that very little was overlooked in the system beginning with its con­ stitutions and ending with the regulation of the administrator's powers. 189

A strong respect for individual property rights reflected itself in the considerable discretion given to the dedicator to dispose of his property during his lifetime as well as in the provisions against alienability and revocability which served to protect the dedicator's wishes by p rotecting h is endowment.

Much has been made of these inherent restrictions and their social injuriousness. Such criticism largely ignores the changes in social thinking and practices which changed the intellectual basis for waqfs.

At the time of the development of waqfs, wealth was largely in terms of personal and real property. No commercial paper existed and it was inevitable that with a change in the conception of wealth, the desirability of real property would also lessen. Then, too, changes in the role of the state accompanied by greater social thinking de-empha­ sized individual property rights.

Rather than blame the system of waqfs, this writer suggests that new social concepts changed the intellectual basis of waqfs necessitat­ ing a change in waqf provisions while the religious authorities clung to a concept of strong individual rights.

The Tanzimat are very important for they not only changed even­ tually the method of government into a parliamentary system but also changed the role of the state in society, giving the state in the process a greater share in organizing the life of the individual and increased the participation of the individual in the state. These concepts had revolutionary built-in meanings for they not only meant that for the first time political activity was not limited to the towns (in theory), 190 but that the religious authorities' activities in the social and educa­ tion fields would necessarily have to be subjected to the state control in fact as well as in theory.

The reluctance with which the Ottoman government viewed changes concerning waqfs should not be misunderstood. Much criticism has been levelled at the Ottoman reformers for changing only the miri waqfs and la r g e ly ignoring the mulk waqfs. This critic ism i s somewhat u n fair fo r the miri waqfs comprised the bulk of the waqfs and their categorization as miri lands, except for the dedication of the taxes, was a great event which escaped the ire that might have been aroused had the whole system been attacked. The great weakness o f the Ottoman reforms was in th e almost non-existent follow-up action of the reforms. The efforts of the

Palestine government in carrying out the Ottoman reforms shows what could have happened had the Ottoman government been capable of carrying out its own measures.

Detailed codes or compilations of law can explain a system with a great deal of certitudej however, few countries have populations so willing that they can afford to discard whole systems of law and progress i s more lik e ly to come anywhere in f i t s and s ta r ts . The p ie c e ­ meal reform of the Ottoman government should be viewed against a back­ ground of advances and retrenchments amidst great soul-searching and considerable opposition.

The truism about Palestine being the Holy land serves to indicate the religious importance of that area to Muslir.s, Christians and Jews alike. The country has never been wealthy which meant that few 191

Individuals werB wealthy enough to dedicate extensive properties as waqfs. This accounts for the major difference between Palestine and the surrounding Arab countries with regard to the relative absence of family waqfs. On the other hand, with the exception of Mecca and Medina in

Arabia, no countiy has received more gifts from foreign countries than

Palestine and in particular Jerusalem because of its peculiar religious in flu en ce.

The existence of community waqfs in Palestine greatly depended on the size and wealth of the particular religious community. The Muslim community being the largest in the country could be expected to have the la r g e st number o f w aqfs. The C hristian community having th e next la rg est number of persons, prior to the twentieth century, could be expected to have the next la r g e st number, with the Jewish community a poor th ird .

In terms of waqfs, the Muslim community did have the largest number of waqfs; however, Christian and Jewish religious property fulfilled analo­ gous functions to waqfs, The Greek Orthodox Church, in fact, had more income than the waqfs of the whole Muslim community although it was only a fraction of its si ae.

It is a reflection of the difficulties inherent in the system of waqfs, because it was built on the basis of religious separatism and was largely regulated by Muslim law, that the mechanism of waqf was not frequently resorted to by non-Muslims. The protection given the other property ownerts by the Ottoman government in the nineteenth century made it possible for churches to own lands without being unduly confiscated.

The civil authorities were frequently more lenient than the Muslim 192

religious authorities so that the preferential protection of waqfs was

removed.

The diminishing reliance on waqfs as a means of owning community

property must not be viewed only in the light of the property owner's

desire for more freedom and the consequent reluctance to rely on the

Muslim religious authorities, but also, on the fact that the Catholic and

Jewish r e lig io u s a u th o r ities d iffered in nature from th e Muslim and th e

Greek Orthodox churches. The Catholic Orders were partially autonomous

within the Roman Catholic Church and frequently represented different

European nationalities. It was thus natural that they should want to

have their properties registered in the name of their societies or

governments. In addition to these considerations the Catholic Orders

and the Jewish community were largely used to a different system of

property administration and the resort to mulk and miri registrations

satisfied their desires.

The creation of the Supreme Moslem Council removed the obstacles

of a non-Muslim government administering Muslim affairs. Some criticism

can be justifiably levelled at the Palestine government for not insist­

ing on an elective council in accordance with the language of the

Mandate for P a lestin e and the O rder-in-Council. The powers o f the

Council were indeed wide; however, the criticism of the Council's Con­

stitution should not be directed so much against its powers, for the

existence of a working electoral college and an adequate system of

inspection would have removed any major departures from the Mandate in practice, but more so at the non-restriction of the Council's functions. 193

The Council got itself involved in education, clinics, orphanages, religious welfare, repairs and construction of buildings, university education end other welfare activities so that no function could be per­ formed well. Furthermore, by getting involved in these activities, the

Council permitted the blame for inadequate institutions to be deflected from the Palestine government to itself.

Any large sca le mismanagement by the Supreme Moslem Council o f

Muslim waqfs seems to be unfounded. There were far too many persons who belonged to different political groups within the organization and the relative paucity of funds in view of the number of institutions involved, left little room for cheating. Even the Palestine government with its network of secret police and organization was never able to prQve such a state of affairs. It is, on the other hand, quite true that the position of the members of the Council gave them great prestige in the Muslim community which some of them definitely used to increase their political power.

The members of the Supreme Council were excellent businessmen who obtained a considerable portion of the waqf revenues through their own in it ia t iv e . They increased th e Supreme Moslem C ouncil's ca p ita l by investments in order that future income be increased. Issue can be taken with the members of the Council on this point. The tragedy of

Palestine was to a large extent th$ tragedy of the Arab fellah who was in sore need of education and other facilities. Lacking the facilities for education and self-im provem ent, the fe lla h was condemned to remain at the lower strata of society because he was increasingly incapable of 19k competing for the better positions in the life of the country. The

Supreme Moslem Council could have been able to improve the l o t o f the fellah but failed to do so.

Many waqfs were also Holy Places and during the later life of the

Ottoman Empire th ese became ob jects o f European diplomacy. The demise o f th e weak Ottoman Empire removed th e extern al stru ggle for the con trol of the Holy Places but left untouched the internal pressures for control.

Their importance as a means of political agitation was demonstrated by the Arab-Jewish massacres over the Western Wall in Jerusalem and the tombs of the Patriarchs at Hebron.

The system of waqfs has lost many of its former attractions in the state of Israel. The developments permitting societies and foreigners to own land in Palestine diminished the value of having communal waqfs.

Indeed, the possession of miri and mulk lands permitted greater freedom in alienating such property.

The disappearance of the Supreme Moslem Council and the increased role of the Israel government in health, education and welfare activities has reduced the need for a prosperous waqf council* On the other hand, laws are usually so complex that there is always a need for charitable societies to supplement government activities in hardship cases. Then, to o , r e lig io u s a c t iv it ie s for th e Muslim community w i l l always neces­ sitate some measure of religious welfare.

Some difficulties w ill continue to occur regarding waqfs so long as the policy of the Israeli government is not clarified about the future of the Palestine Arab refugees. The government's policy towards unused 195 • mosques is indicative of an uncertainty concerning this issud.

The control of waqfs by the Ministry for Religious Affairs has many undesirable features since the charge might be made that one reli­ gious community has been subordinated to another.

The creation of local waqf committees in Israel has both advan­ tages and disadvantages. One advantage is that the local committees are more liable to know and to sympathize with local needs. On the other hand, it is almost impossible to divide the area of Israel geographically with any degree of fairness and a local particularism may prejudice these anmmittees. The coordination of the local committees' efforts can still be carried out by the Ministry for Religious Affairs.but this w ill not measurably reduce the charge that Muslim affairs are tinder the control of the Ministry. A Muslim Council for the whole of Israel could perhaps better administer and coordinate the activities of the groups and w ill have control of waqfs where no local Arab population exists.

It is highly unlikely that the takhsissat waqfs will be paid to the waqf authorities but, if they should be paid at all, they are more likely to be paid at the rate of IL 1 for IP 1 so that their value will not be very great.

The present waqf income without the takhsissat waqfs is highly unlikely to be sufficient for the religious and social needs of the community. On the other hand, there exists much religious property that serves no population and can be made to be income-bearing. There is no sound reason why at least some of this property could not be sold.

Both the Arab community and the government could benefit by this sale, 196

the former by applying the resulting income to the existing community

and the latter by creating a healthier community life .

Waqfs with increased income can be made to be very u se fu l towards the future of the state. At present much of the economic development is made through Jewish philanthropic effort. There is a natural and under­

standable reluctance on the part of the government and such groups to

apply size a b le amounts to Arab p r o je cts. I t i s p o ssib le to create some projects and avoid the charge of subverting Jewish funds for Arab pur­ poses by using the waqf funds as has been done in some health clinics.

Despite the many changes in the system of waqfs since the 19th

century, it has managed to survive in all countries which have Muslim populations. For want of a better name, waqfs w ill continue to represent

at least Muslim religious institutions. It is unlikely that waqfs w ill

occupy a major place in the secular life of the country or that they w ill provide any major obstacles to reform. BIBLIOGRAPHY I . PRIMARY SOURCES

GREAT BRITAIN - COLONIAL PAPERS*

Report by His Britannic Majesty's Government on the Palestine A dm inistration, 1922* C olonial Psper No. 5. Londons H.M. Stationery O ffice .

______, 1922-23. Colonial Paper No. 9.

Report by His Britannic Majesty's Government on the Administration under Mandate of Palestine and Trans-Jordan for the year 192U. Colonial Paper No. 12.

Report of the High Commissioner on the Administration of Palestine, 1920-1925. Colonial Paper No. l5.

Appendices to the Report by His Britannic Majesty's Government on the Administration under mandate of Palestine and Trans-Jordan for the year 1922. Colonial Paper No. 17.

Report by His Britannic Majesty's Government in the United Kingdom of Great Britain and Northern Ireland to the Council of the League of Nations on the Administration of Palestine and Trans-Jordan for the year 1925. Colonial Paper No. 20.

Report by His Britannic Majesty's Government to the Council of the League of Nations on the Administration of Palestine and Trans- Jordan for the year 1926. Colonial Paper No. 26.

Report by His Britannic Majesty's Government to the Council of the League of Nations on the Administration of Palestine and Trans- Jordan for the year 1927. Colonial Paper No. 31.

Report by His Britannic Majesty's Government to the Council of the League of Nations on the Administration of Palestine and Trans- *-• Jordan for the year 1928. Colonial Paper No. Uo.

Report by His Britannic Majesty's Government to the Council of the League of Nations on the Administration of Palestine and Trans­ jordan for the year 1929. Colonial Paper No. b7»

Palestine Commission on the Disturbances of August 1929. Evidence, 3 v o ls ., 1930. C olonial Paper No. U8.

Report by His Britanni c Majesty's Government to the Council of the League of Nations on the Administration of Palestine and Trans- Jordan for the year 1930. Colonial Paper No. 59. 199

Report by H is Britannic M ajesty's Government to the Council o f the League of Nations on the Administration of Palestine and Trans- Jordan for the year 1931* Colonial Paper No. 75*

Report by His B ritannic M ajesty's Government to th e Council o f th e League of Nations on the Administration of Palestine and Trans­ jordan for the year 1932. Colonial Paper No. 82.

Report by His B ritannic M ajesty's Government to the Council o f the League of Nations on the Administration of Pate stine and Trans- Jordan for the year 1933. Colonial Paper No. 9k»

Report by His B ritannic M ajesty's Government to the Council o f the League of Nations on the Administration of Palestine and Trans- Jordan for the year 193h» Colonial Paper No. 10U.

Report by His B ritannic M ajesty's Government to the Council o f th e League of Nations on the Administration of Palestine and Trans- Jordan for the year 1935. Colonial Paper No. 112.

Report by His B ritannic M ajesty's Government to the Council o f the League of Nations on the Administration of Palestine and Trans- Jordan for the year 1936. Colonial Paper No. 129.

P a le stin e Royal Commission: Memorandum prepared by th e Government of Palestine, 1937. Colonial Paper No. 133.

Palestine Royal Commission: Minutes of Evidence heard at Public Session, 2 vols, 1937. Colonial Papers Nos. 13l+ and 135 (summary of report with extracts).

Report by His B ritannic M ajesty's Government to the Council o f the League of Nations on the Administration of Palestine and Trans­ jordan for the year 1937. Colonial Paper No. ll+6..

Report by H is Britannic M ajesty's Government to the Council o f th e League of Nations on the Administration of Palestine and Trans- Jordan for the year 1938. Colonial Paper No. 166.

GREAT BRITAIN - PARLIAMENT PAPERS BY COMMAND (Reference Cmd).

An Interim Report on the Civil Administration of Palestine during the Period 1 July 1920-30 June 1921, Command No. 11+99, 1921. /ls t Samuel Report/.

Palestine, Disturbances in May 1921. Report of the Commission of Inquiry with correspondence Relating Thereto, Command No. 151+0, 1921. /Haycraft Report/. 200 Correspondence with the Palestine Arab Delegation and the Zionist Organization, Command No* 1700, 1922* /The Churchill White Paper/.

Mandate for Patestine—Letter from the Secretary of the Cabinet to the Secretary-General of the League of Nations Regarding the Mandate of Palestine and the Holy Places Commission, Command No. 1708, 1922. Palestine—Papers relating to the e]e ctions for the Palestine Legis­ lative Council 1923, Command No. 1889, 1923.

Palestine—Proposed formation of an Arab Agency—Correspondence with the High Commissioner for Palestine, Command No. 1989, 1923*

The Western or Wailing Wall in Jerusalem. Memorandum by the Secretary of State for the Colonies, Command No. 3229, 1928.

Report of the Commission on the Palestine Disturbances of August 1929, Command No. 3530, 1930. /Shaw Report/.

Palestine—Statement of Policy with Regard to British Policy, Command No. 3582, 1930. /White Paper on Shaw Report/.

P a le stin e —Report on Immigration, Land Settlem ent and Development by Sir John Hope Simpson, Command Nos. 3686 and 3687 , 1930. /Simpson R eport/.

Palestine—Statement of Policy by His Majesty's Government in the United Kingdom, Command No. 3^92, 1930. /Passfield White Paper/.

Proposed New Constitution for Palestine, Command No. 5119, 1936.

Palestine Royal Commission Report, Command No. 5H79, 1937. /Peel

P a le stin e—Statement o f P o licy by H is M ajesty's Government in the United Kingdom , Command No. 5513, 1937. /Shite Paper on Partition/.

Policy in Palestine. Despatch from the Secretary of State for the Colonies to the High Commissioner for Palestine, Command No. 5631+, 1938.

Palestine Partition Commission Report, Command No. 5851+, 1938. /Woodhead R eport/.

Palestine—Statement by His Majesty's Government in the United Kingdom, Command No. 5893, 1938. /Revokation of Partition/.

Palestine—Statement of Policy, Command No. 6019, 1939. /White Paper of May 1932/. 201

Palestine—Statement of Information relating to Acts of Violence, Command N o. 6873, 191+6.

Proposal for the future of Palestine, July 19l+6-February 191+7, Command No. 701+1+, 191+7.

PALESTINE GOVERNMENT

The Laws of the Occupation—OETA—South. Jerusalem: The Government P rin ter.

The O ffic ia l Gazette of the Government of P a le stin e , 1920-1932.

Ordinances, Regulations, Rules, Orders and Notices. Jerusalem: The Government P rin ter.

The P a lestin e G azette, 1932-191+8. Jerusalem: The Government P rin ter.

Palestine Law Reports—P.L.R. Jerusalem: The Government Printer.

ISRAEL GOVERNMENT

Iton Rishmi (O fficial Gazette) 191+8-191+9.

Reshumot, Qovez ha-tajanot (Collection of Regulations Vol. II), 191+9.

Reshumot, Sefer ha-hugim (Laws of Isra el) 1950-

Divrei Ha Knesset, 1950-

Government Yearbooks since 1951-

Israel Weekly Digest.

The Arabs in Israel—1955 and 1958.

I I. SECONDARY SOURCES

ON OTTOMAN, MUSLIM AND PALESTINE LAW

Aghnides, N.P. Mohammedan Theories of Finance. New York: Privately Published, 191^

Aristarchi, Gregoire (ed.). Legislation OtNomane Receuil des lois de 1 'Empire 0 Homan. Constantinople: frVres Nicolaides, 1873-1871+7

Arnold, Sir Thomas W. The Caliphate. Oxford: The Clarendon Press, 1921+. 202

Ben-Shemesh, A. Kitab al Kharaj of Fahya ibn Adam. Leiden: E. J. Brill, 1958.

F ish er, S ir S tan ley. Ottoman Land Law. Translated and annotated into E nglish by H. M ilford. London: Oxford U n iversity P ress, 1919.

Fyzee, AAA. Outlines of Mohammedan Law, 2nd ed. Indian Branch, Oxford University Press, 19551

Gaudefry, Demom Bynes, Maurice, Muslim Institutions. Translated from the French by J.P. MacGregor, London: Allen and Unwin, 1950.

Gibb, H.A.R. and Bowen H. Islam ic S ociety and th e West. London: Oxford University Press, 1957. (Vol. I, Part II, Chap. XV entitled "R eligious Endowments (Awkaf).

Goadby, and Doukhan, P a le stin e Land Law. T el Aviv: Shoshany* s Printing Co., Ltd, 1935.

Goldziher, I. Le Dogme et la loi de 1'Islam. Paris: P. Geuthner, 1920.

Guillaume, Alfred, The Traditions of Islam, an introduction to the study of the Hadith literature. Oxford: The Clarendon Press, 1921+.

Hamilton, Sir Charles. The Hedaya: A Commentary on the Mussulman Laws. 2nd ed. London: W.H. Allen and Co., lB70.

Hooper, C.A. The C ivil Laws of Palestine and Trans-Jordan, The Me j alia. Jerusalem: Azrisl Printing Works, 1933.

Kadry, Pasha (Muhammad Qadry Pasha). Du Waqf. Revised edition 1936 at Alexand Librairie judiciare au Livre. IMPR . . . Nationale, C airo: 1 8 9 6 .

Khadduri, M. and Liebesny, eds. Law in the Middle East—The Origin and Development of Islamic Law. Vol. I. Washington, D.C.: Middle East Institute, 19551 s Laoust, Henri. La Methodologie Canonique de Taki-d-din Ahmad b. Taimiya. LeUaire: Institut fran<^ais d'archdologie orientals, 1939.

______. Essai sur les doctrines sociales et politiques de Taki-d-din Ahmad b. Taimiya. Le Caire: Institut fraijcais d'archdo^ogie orientale, 1 9 3 9.

Margolimuth, D.S. Early Development of Mohammedanism. New York: C.A. Scribner's Sons, 1911+• y M illiot, Louis. Introduction a 1'etude du droit mussulman. Paris: Receuil Sirey, 1953. 203

Omar Hilmy Pasha. A Gift to Posterity on It he Laws of Egypt. Trans­ lated by Sir C. R. Tyser and D. G. Demetriades. Nicosia: Govern­ ment Printing O ffice, 1899.

Ongley, F. The Ottoman Land Code. Translated and annotated by F. Ongley, revised by H.~E. M iller. London: W. Clower and Sons, Ltd., 1892.

Pollack, F. and Mgitland, F.W. History of English Law before the Time o f Edward I . Cambridge: The U n iv ersity P r ess, 19521 V ol. I I .

Rosenthal, E.I.J. Political Thought in Medieval Islam. Cambridge University Press, 1958.

Schacht, Joseph. Origins of Muhammadan Jurisprudence. 2nd ed. Oxford: Oxford University Press, 1953.

Syed, Amir Ali. Muhammadan Law. 3rd ed. 2 Vols. Calcutta: Thacker, Spink, 1901+-190HI

Saarisalo, Arpeli. A Waqf—document from Sinai. Helsingforsiae: Studia Orientalia, 1933*

Student' s Handbook o f Muhammedan Law. 7th ed. C alcutta: Thacker, Spink, 1925.

Tute, R.C. The Ottoman Land Laws w ith Commentary. Jerusalem: Galek Convent Press, 1927.

Tyser, S ir C.R., Ongley and I z z r i. The Laws R elating to Immovable Property made Waqf. N icosia: Government P rin tin g O ffic e , 190I+.

Tyan, Emile. Histoire de l 1organization judiciaire a pays d'islam. Paris: Librairie du receuil Sircey, 1938.

Vezey-Fitzgerald, S.G. An Abridgment of Muhammadan Law Acoording to I t s Various Schools. London: Oxford U n iv ersity P ress. H. M ilford. 1931.

Young, George. Corps dd droit Ottoman. 7 Vols. Oxford* The Clarendon Press, 1905-1906.'

ON THE OTTOMAN EMPIRE AND THE PERIOD UNTIL THE FIRST WORLD WAR

Blaisdell, Donald C. European Financial Control in the Ottoman Empire. New York: Columbia U n iversity P ress, 1929.*"

Cuindt, Vital. La Turquie d'Asie. Paris: E. Le Roux, 1890-1895. it V ols. 20U

Cuinet, Vital. Syrie, Lib an et Palestine Geographic administrative, statistique, d^sariptive et raisonnee. Pariis; E. Leroux, 1696.

Djemal, Ahmed Pasha. Memories of a Turkish Statesman 1913-1918. New Yoirk: Doran, 1922.

Digeon, M. "Canoun-Name ou Edits de Sultan Soliman" in Nouveaux contes turcs et arabes. Vol. II. Paris: 1781.

S Du Velay, A. Essai sur 1'Histoire Financiere de la Turquie. Paris: Rousseau, 1903*

Emin, Ahmed. Turkey in the World War. New Haven, Conn.: Yale University Press, 1930.

Engelhardt, E.P. La Turquie et le Tanzimat. Paris: A. Cotillon et c ie , 1 8 8 2 .

F ish er, Sydney N. The Middle E ast. New York: Knopf, 1959.

Fisher, W.B. The Middle East. New York: Dutton, 1957.

Gibbons, Herbert Adams. Foundations o f th e Ottoman Empire. Oxford: The Clarendon Press, 1918. -

Hammer-Purgstall, Joseph von. H isto ire de 1 'Empire Ottoman, tran slated by B. Hellert. Paris, l835-l8h6.l 8 “V ols.

Hasluck, F.W. Christianity and Islam under the Sultans. Oxford: The Clarendon P ress, 1929. 2 V ols.

Inalcik, H alil. "Land Problems in Turkish History," The Muslim World, V ol. XLV, No. 3, July 1955.

Jonquiere, A. L. H isto rie de 1 'Empire Ottoman. Paris: Hachette, 1911|. 2 Vols.

Juchereau de -D enys, A de. H isto ire de I 1Empire Ottoman depuis 1792 jusqu'en l 8 Uu Paris, l 8 Uu ITVols.

Kemal, Ism ail Bey. The Memoirs of Ism ail Kemal Bey, ed ited by Sommerville Story. London: Constable Co., 1920.

Kohn, Hans. Nationalism and Imperialism in the Hither East. London: G. Routledge and Sons, L td ., 1932.

Kopruluzade, (Koprulii) Mehmed Fuad. 'Bizans Mtiesseselerin Osmanli Muesseselerine Te'siri, in Turk Hukuk ve Iktisat Meemuasi, Vol. I. Ista n b u l, 192 1.

Kunter, Halim Baki. "Turk Vakiflaie ve Vakfiyeleri"in VakiflarDergiwi, i Ankara, 1938. 205

Lewis, Bernard. "The Ottoman Archives as a. Source fo r th e H istory of the Arab Lands," Journal of the Royal Asiaria Society, October 1951.

______. "Notes and Documents from the Turkish Archives," The Israel Oriental Society. Jerusalem, 1952.

Lyber, Albert H. The Government o f the Ottoman Empice in the Time o f Suleiman the M agnificent. Cambridge: Harvard U n iversity P ress, 1913.

Pelissie du Rausas, C. Le regime des capitulations dans 1'Empire Ottoman. Paris, 1902-1908. £ Vols.

Unver A. Suheyl. 'Bnyuk Selquklu Imparator luqun zamoninda v a k if hastanelerin bir Kismina dair in Vakiflar Dergisi i . Ankara, 1938.

Marriott, J.A.R. The Eastern Question, a historical study in European Diplomacy. Oxford: Oxford University Press, 192^1

Mears, E.G. Modern Turkey. New York: Macmillan, 192lu

M iller, W illiam. The Ottoman Empire and I ts S uccessors. Cambridge: Cambridge U n iversity P ress, 1923.

Mouradgea d'Ohsson, Ig n a tiu s. Tableau general de 1 1empire Ottoman, diviseyeu deux parties d'ont lune comprend la legislation Mahometane; 1 1 autre de 1*h isto r ic Ottoman. P a ris: Imp. de Monsieur Firmin Didot, 1787-1820.

Sousa (Susa), Nasim. The Capitulary regime of Turkey. Baltimore: Johns Hopkins University Press, 1933.

Strange, A. Le, The Lands of the Eastern Caliphate. Cambridge: Harvard University Press, 1930,

Temperley, H. England and the Near E ast. London, New York: Longmans. Green & Co.TB'jST “------

W ittek, Paul. The R ise o f the Ottoman Empire. London: Journal o f Royal Asiatic Society, 1938.

OTHER BOOKS

Abcerius M.F. P a lestin e through the Fog of Propaganda. London: Hutchinson, 19U&,

Adler, Cyrus. Memorandum on the Western Wall submitted to the Special Commission

Arnely, L.S. The Forward View. London: C. B les, 1935.

Andrews, Fanny F. The Holy Land under Mandate. New York: Houghton- Mifflin, 1931. 2 Vols.

Ashbee, Charles R. A Palestine Notebook, 1918-1923. Garden City, New York: Doubleday, Page and Co., 1923.

A tiyah, A .S. The Crusade in th e Letter Middle Ages. London: Methuen 1938.

Baer, Gabriel. "Waqf Reform in Egypt," St. Antony's Papers No. 1*. New York: Praeger, 1959.

Baron, S.W. A Social and Religious History of the Jews. 3 Vols. New York: Columbia U n iversity P ress, 1937*

Bell, Gertrude. Review of the Civil Administration of Mesopotand a. London: H.M. Station ery O ffic e , 1920.

Ben-Jacob, Jeremiah. The R ise of I s r a e l. London: Grosby House, 191*9.

Bentwich, Norman de Mattos. Israel, Resurgent. New York: Praeger. I 9 6 0.

B em adotte, F olke. To_ Jerusalem. London: Hodder and Stroughton, 1951.

Bertram, A. and H.C. Luke. Report on the Ortho don Patriarchate of J Jerusalem. London, New York: Oxford University Press, 1921.

Bilby, Kenneth W. New Star in the Near East. Garden City, New York: Doubleday, 1950.

Bliss, Frederick Jones. The Religions of Modern Syria and Palestine. New York: C. Scribner*s Sons, 1912.

Bowman, Sir Humphrey. Middle East Window. London, New York: Longmans Green and Co., 19U2.

Churchill, Sir Winston S. The Aftermath. London: Scribner and Sons. Co., 1929.

Conder, Claude Regnier. Eastern Palestine. London: Palestine Exploration Fund S o ciety , 189 2 .

Courtney, Roger. Palestine Policeman. London: H. Henkins, Ltd., 1939.

Crossman, Richard. Palestine Mission: A Personal Record. New York: Harper, 19U7. ~

Crum, Bartley C. Behind the Silken Curtain. New York: Simon and Schuster, 191*7 • 207

De Haas, Jacob. : The Last Two Thousand Years. New York: Macmillan, 193^

D uff, Douglas V. P a lestin e P ictu re. London: Hodden and Houghton,

Dunner, Joseph. The Republic of Israel. New York: Whittlesey House, 1950.

Erskine, Beatrice* Palestine of the Arabs. London: Macmillan, 1937.

Esco Foundation for Palestine. Palestine: A Study of Jewish, Arab mr.and British------Policies.;— New Haven, Conn.: Yale University Press, Garcia-Granados, Jorge, pie Birth of Israel: The Drama as I Saw It. New York: Knopf, 191*6.

Granovsky, Abraham. Land Policy in Palestine. New York: Bloch, 19l*0,„

Graves, P h ilip . P a lestin e, the Land o f Three F a ith s. London: J. Cape, 1923.

Graves, R. M. Experiment in Anarchy. London: Gollanoz, 19U9.

Gurevich, David. Statistical Abstract of Palestine, 1929. Jerusalem: Keren Hayesod, 1930.

Hanna, Paul L. British Policy in Palestine. Washington, D.C.: American Council on Public Affairs, 19l*2.

Hedin, Sven Anders. Jerusalem von Sven Anders. Leipzig: F.A. Brockhaus, 1918.

Heyd, U r ie l. Ottoman Documents on P a le stin e 1552-1615—a Study o f the Firman According to Muhimme Defteri. Oxford University Press, i 960.

Himadeh, S. B. ( e d .) . The Economic O rganization o f P a le s tin e . B eirut: The American P ress, 19361

H itti, Philip K. The Origins of the Druze, People and Religion. New York: Columbia U niversity P r ess, 1 928 .

Hocking, William Ernest. The Spirit of World Politics with Special Studies of the Near East. New York: The Macmillan Co., 1932.

Hurewitz, J.C. The Struggle for Palestine. New York: Norton, 1950.

Hyamson, Albert M. P a le stin e , Old and New. New York:- McBride and Co., 1938.

. P a lestin e under the Mandate, 1920-191*8. London: Methuen, 1950. 208

Jaussen, A. J . Coutumes P a lestin n ien n es, 1927* P aris: L ib rairie orientalists, P. Geultier, 1927*

Kendall, Henry. Jerusalem City Plan. London: H.M. Stationery Office, 19U8.

Village Development in Palestine. London: Crown Agents

Kimche, Jon and David. Both Sides of the H ill. London: Seeker and and Warburg, I960.

Kinsel, Paschal. The Catholic: Shrines of the Holy Land. New York: Farrar, Straus and Young, 1951.

Kisch, Frederick N. Palestine Diary. London: Collancz, 1938.

Leonard, L. Larry. The United Nations and Palestine. New York: Carnegie Foundation for International Peace, 191*9.

Luke, H.C. and E. Keith-Roach. The Handbook of Palestine and Trans- Jordan. London: Macmillan Co., 193k.

Luke, H.C. Prophets, Priests and Patriarchs, Sketches of the Sects of Palestine. London: The Faith Press, Ltd., 1927*

Magil, Abraham B. Israel in Crisis. New York: International Publishers, 195oI

Main, Sir Ernest. Palestine at the Cross Roads. London: G. Allen, 1937.

Manuel, Frank E. The Realities of American Palestine Relations. Washington, D. C.': Public Affairs Press, 191*9.

Matthews, Charles D. Palestine, Mohammedan Holy Land. New Haven, Conn: Yale University Press, 19l*9«

Mayer, L.A. and J. Pinkerfeld. Muslim Religious Buildings in Israel. Jerusalem: M inistry fo r R eligiou s A ffa irs, Government P rin ter, 1950.

Mogannam, M.E.T. The Arab Women and the P a lestin e Problem. London: H. Joseph,. Ltd., 1937•

Moritz, Bernhard. Arabic Palaeography, a Collection of Arabic Texts from the First Century of the Hidjra~till the Year 1000. Cairo: No p u b lish er, 1905>.

Moschopoulos, Nikephoros. La question de la Palestine et le Patriarchat de Jerusalem. Athens: Reprim£ du Messager d1 Athenes, 19557 209

Patai, Raphael. Israel Between East and West. Philadelphia: Jewish Publication Society of America, 1953•

Peretz, Don. Israel and the Palestine Arabs. Washington, D,C.: Middle East Institute, 19567

Royal Institute of International Affairs. Great Britain and Palestine, 1915-1955. Information Paper No. 20. London: The Royal Institute of International Affairs, 1956.

Sacher, Harry. Israel,the Establishment of a State. New York: British Book Centre, 1952.

Sakran, Frank C. P a lestin e Dilemma—Arab R ights versus Z io n ist Aspirations. Washington, D.C.: Public Affairs Press, 1958*

Samuel, Viscount Herbert. Great B rita in and P a le s tin e . London: The Jewish Historical Society of England, 19357

______• Grooves of Change. London, Indianapolis, New York: Bobbs- Merrill Co., 1956.

Samuel, Horace B. Unholy Memories o f th e Holy Land. London: L. and Virginia Woolf, 1930.

Samuel, Maurice. What Happened in P a le s tin e : The Events o f August 1929. Boston: fSe Stratford Co., 1929.

Sidebotham, Herbert. Great B rita in arid P a le s tin e . London: Macmillqn and Co., Ltd., 1937.

Simson, H. J. British Rule and Rebellion. London, Edinburgh: W. Blackwood' and Sons, L td ., 1937.

Smith, George Adam. The H isto r ic a l Geography o f the Holy Land. 2nd edition. London:, ftodder and Stoughton, Ltd., 1936 .

Sokolow, Nahum. H istoiy of Zionism, 1600-1918. New York: Longmans. 1919. 2 Vols.

Storrs, Sir Ronald. Orientations. London: Nicholson and Watson, 1937.

Tolkowsky, Samuel, The Gateway of Palestine, a History of Jaffa. London: C. Routledge and Sons, L td ., 1925*

Toynbee, A.J. Survey of International Affairs, 1925: The Islamic World Since the Peace Settlement. London:- Survey of International Affairs, Oxford University Press, 1927.

Vitales, Harry and Khalil Totah. Palestine: A Decade of Development. Philadelphia: American Academy of P olitical and Social Sciences, 1932. 210 JOURNALS ON THE MIDDLE EAST

Archives d1histoire da droit Oriental. Brussels, Belgium.

Archives d1etudes O rientals. Upsula, Sweden.

Ars Islamica. Ann Arbor, Michigan.

Byzantion. Brussels, Belgium.

Journal of Near Eastern Studies. Chicago, Illinois.

Journal of the Royal Asiatic Society. London, England.

Journal o f th e Royal Central Asian S o c ie ty . London, England.

Muslim World. Hartford, Connecticut.

O rientalia. Rome, Italy.

O riente Moderno. Rome, I ta ly .

The Middle East Journal. Washington, D.C.

Revue des etudes islamiques. Paris, France.

ENCYCLOPAEDIAS, REFERENCE WORKS AND BIBLIOGRAPHIES ON THE MIDDLE EAST

D avis, Helen M. C o n stitu tio n s, E lecto ra l Laws, T reaties of S ta tes in the Near and Middle East. Durham, N.C.: Duke University Press, Wf.

Encyclopaedia of Islam, M. Th. Houtsma, et al. (eds.). London; Luzac 1913- 193^5 Supplement1938.

Ettinghausen, Richard. A Selected and Annotated Bibliography of Books and P e rio d ica ls in Western Languages Dealing with th e Near and Middle East with Special Emphasis on Medieval and Modern Times. Washington, D.C.s The Middle East Institute, l^fU.

Europa Publications. The Middle East. London: Europa Publications, s in c e 191+8.

Sharabi, H.B. A Handbook on the Contemporary Middle East. Washington, D .C .: McGregor and Werner, I n c ., 1956.

Royal Institute of International Affairs. The Middle East, a Political and Economic Survey. by Sir Reader Bullard, ed. 3rd edition. London, New York, Toronto: Oxford University Press, 1958. APPENDICES 212

APPENDIX A

NOTE ON SPELLING AND PRONOUNCING ARABIC AND TURKISH NAMES

The following rules have been observed:

FOR ARABIC: 1 fo r hamza

The consonants b, t, j. d, z, s, f, k, m, n, h, w, y, q present no difficulty to the English reader.

Of others, th is pronounced as in thing, dh as in this; Kh is not available in English but resembles a ch.

The Gh is similar to the Parisian R, while the aiyn is identified by an inverted Hamza going from left to r ig h t.

Mgcrgns^indicate vowels prolonged by Alef, Waw and ya (a, i , u ).

FOR TURKISH: c pronounced lik e j in jam 9 pronounced like ch in child e pronounced like e in met g pronounced like g in game g silent guttural i pronounced like ee in beer i (undotted) as in first j pronounced like the final g in garage o pronounced like o in bone 8 pronounced like 8 in schBn in German s pronounced lik e s in same S pronounced as sh in shame A pronounced as oo in moon 11 pronounced like u in fflr in German

For the sake of sim plicity whenever a choice of Arabic or Turkish words has presented itse lf the Arabic pronunciation has been followed. APPENDIX B

GLOSSARY

A

Ahbas: plural of habs—synonym of waqf in some Arab countries.

Ahl: people, family—used frequently as ttwaqf ahli", i.e .. family or private waqf.

Ahrash: plural of hursh, forests.

Amana: a trust or pledge, in the sense of bailment for safekeeping rather than as a trust in Anglo-American

Awlawiya: used as Hag-al-Awlawiya or right of preference—refers to Miri owner's right to purchase some lands.

B

Badl Mi si (Bedl Misl): land registry fee originally in lieu of Tapu M isl but now i s synonymous w ith i t .

Bait-al-Mal (Beit-ul-mal): The Treasury in the OtSoman Empire

Baltalik: Turkish, woodland or forest where right of woodcutting is given the public or designated villages.

Bay'a, (Bay'): Sale.

C

Chiftlik (Jiftlik): Turkish, farm—in Palestine often used as "Mudawara" to refer to farms owned by the late Sultan Abdul-Hamid II as his personal estate.

D

Daftar-Khani (Defter Khane): Imperial Registry Office in Otfioman Empire

Dastur (Destour): constitution, collection of laws or statutes.

Dhurri (Zurri): refers to waqfs Dhttrri, i.e . . family or private waqf s.

Dunum (Donum)! unit of land in Palestine and Israel equivalent to ^ acre- some slight variation exists between Turkish dunum and metsic donum. 21k

F

Faragh (feragh) : transfer of property at Land Registry used also as feragh-bil-wafa transfer with right of redemption,

Fatwa (fetwa, f etvaj1: the legal opinion of a mufti regarding a point of religious law.

Fay1: type of booty in Muslim conquest of the Middle East—refers to booty which was personal property.

Firman: a proclam ation by the Ottoman Sultan.

G

Ghair: a meadow.

Ghanima: type of booty in early Muslim conquest of the Middle East.

Ghasb: to compel a person to do an act against his w ill. (Not necessarily by force. See Jab§).

H

Habs: l i t e r a ll y means p riso n , r e fer s to waqf in certain Arab countries.

Hadith: sayings ascribed to the Prophet Muhammad by his disciples and fo llo w ers.

Hamula: (plural Hama'il) an extended family concept to include all persons descended from a particular person usually an ancestor who settled in a town or village—similar to clan.

Hanafi: (al Mazhab al Hana£i)—school of law of Sunni Islam, the followers of Abu Hanifa and Abu Yusuf Yagub.

Hanbali: (al Mazhab al Hanbali)—school of law of Sunni Islam, the followers of Ahmad ibn Hahbal.

Haq al Awlawiya: right of preference refers to the right of Mini owners to purchase certain lands.

Haram: sacred enclosure u su a lly th e compound o f an important mosque or shrine with mosque.

Harim: the womenfolk, refers to right of privacy of womenfolk, a duty on adjacent land owners in oertain cases.

Hejira (Hifra): beginning of Muslim era, i*e,, from 622 A.D. 215

Hiba (Hibe)s Gift.

Hikrs waqf rented on system of double rent or lease in perpetuity.

Harsh: sinq forest, plural Ahrash.

I

Idara: management, adm inistration.

I ja r a Wahida: sin g le ren t.

Ijara Zemu: periodic rent.

Ijratein (Ijratayn): double rent.

Ijma: concensus, used also as Ijma’ al Umma concensus of the people or the scholars.

IIam Sharia: certificate of Sharia Court.

Istibdal: exchange

Iradch (Irada): the will of refers to Edicts of Otfcoman Sultans.

J

Jabi (Jabi al Waqf): collector of rents for waqf s.

Jabr: compulsion, used also as Jabr fahish (jabe-i-fahish) or excessive compulsion.

K

Khairi (khayri): literally munificence (of God) refers to charitable waqfs, i.e ., waqfs khairi.

Khan: Arabic inn; Turkish khangah.

Kharaj: type of land tax abolished during the tanzimat. Land is said to be kharaji or kh ar a j-paying .

Khas: p riv a te.

Khilafa: succession whence Khalif or Caliph.

Kirash: stony land. 216

Kishlak: winter pasture.

Kurut woodland.

Rushan: certificate from land registry office as to registration of land not deed because no guarantee of title .

M

Madrassa: religions school although it has come to include any school.

MahallA: p la ce.

Mahful: permitted, i.e ., vacant land usually miri upon which squatting by c u ltiv a tio n was perm itted in Ottoman Empire.

Mahmia: p rotected .

M ajalla: Ottoman C iv il Coca 186? A .D ., 1285 A.H.

Malia: Treasury, Bayt-al-Mal.

Magam: shrine or stopping place.

Masha1: land h eld in common and ownership.

Matrouka: abandoned land, i.e ., public land.

Mawat: dead or waste land.

Mazbut: tnue or correct, refers to waqf Mazbutm.

Mazbata: records kepit by Shan1 a Court as to rights in land or census.

Mera: pasture.

Miri(eminel): state land.

Mosque (Jami1, Masjed): Muslim house of prayer.

Muajalla (Muejelle) : prepaid sum.

Hub ah: permitted.

Mukhtar: v illa g e head man or o f f i c i a l .

Mulk: type o f ownership, lands owned in maximum ownership.

Mulknameh: letter patent, or deed creating mulk.

Multazim: tax farmer. Mundaeris: (mundasisia) lapsed, refers to lapsed waqfs 217

Mug ass amah: tax broken down or apportioned.

Mugataa1: land where separate ownership exists as to buildings and land or and orchards and land.

Murfaqa: subject to servitu d e.

Mustahiq al tapu: deserving of land registry rights.

Mussaqaf: roofed.

Mursavaghat: conditions under which it is permitted to sell waqf land or exchange.

Mustasna (Mustesna): exceptional (waqfs).

Mutassarif: person entitled to right of Tassaruf.

Matawalli: trustee or manager—administrator of waqf.

Muwassaj: fixed, i.e ., fixed tax.

N

Nahieh (Nahia) : a quarter in district, similar to french arrondissement.

Nuksan Arz: diminution in the value of land.

P

Pia® causae: pious causes—refers to church lands under Roman law,

Q

Qadi (K adi): Muslim r e lig io u s judge.

Qanun: law but more properly regulation, since in theory a ll laws were laid down by God in revelation.

Qubbat: cupola, dome.

Qur’an: Muslim Holy Book, record of revelations to prophet Muhammad.

Qyas: analogy. 218

R

Rais al Ulsma: primate, chief of religious savants.

Raiya (Raiyeh): literally herd but refers to the people. In Ottoman Empire sometimes wrongfully applied by foreign observers to non-Muslims.

Rahn: pledge, has become a lso synonymous w ith mortgage.

Raqaba: right of ownership in Muslim law.

S

Sahihs true, refers to waqf sahib.

Sahm: a share (in land).

Shaf»i: (a l mazhab a l shaf »i) school of law of sunni Islam .

Shari'as body o f Muslim r e lig io u s law*

Sheikh (Shaykh): an o ld man, leader of a tr ib e , Muslim r e lig io u s man certified by a religious school or university.

Sheikh al Islam: primate of religious personnel and courts in Ottoman Empire subsequently used as synonymous with Rais a l Ulema.

Shuf'a: righ t o f preference— synonymous w ith Hagai Awlaurya except that i t i s applied to mulk owners.

Sipahi: Tturkish, mounted soldier or cavalryman.

Sultan: Head o f Ottoman Bnpire, expression was used even e a r lie r to denote head of state in contradistinction to Caliph (Khalif).

Sunna: body o f b e lie f s o f sunni Muslims.

T

Tahbis: to imprison, i.e .. to make waqf.

Tahrim: to forbid, expression often used in waqfieb.

Taghrir: deceit,

Takhsissa (Takhsissat): to set aside for a purpose, to earmark—refers to particular type of waqf.

Tanzimat: Ottoman refo m s (tanzim, verb—means organize, r e -o r g a n iz e .) 219

Tapu (Tabu) s literally soil—refers to land Registry Office since Ottoman Empire*

Tapu M isl: Land R egistry f e e .

Tarla: cultivated land,

Tasbil: one of words used to describe mechanism of waqf in waqfah.

Tassaruf: right to certain rights of ownership usually refers to the rights of miri owner,

Tawliat (Towliat): administration,

Tereke (Taraka): estate, what is left by a man in property,

Timar: type of feudal military tenure.

U

Umumy (Umumi): p u b lic, i e , waqfs umumy on p u b lic waqfs.

Ushr: tenth or tithe paid on land as tax,

V

Vilayet (Wilaya): province in Ottoman Empire.

x ^ -

Wakala: instrument for an agency, wakala dawriya *- general power of attorney.

Wakil: agent,

Waqfiah (Waqfieh): instrument creating a waqf.

Waqnamah: Turkish for waqfiah.

Waqif: he who makes waqf, dedicator of waqf.

Y

Yaylak: summer pasture.

%

Ziamet: type of feudal military land tenure. Zawiya: SigQ for zauaja, convent or hostile for religious brotherhoods to stay or pray. APPENDIX C

THE HEJIRA CALENDAR AND THE TURKISH FISCAL YEAR1

The Hejira calendar commenced on the 21th of July, 622 A.D.

This calendar is a lunar one divided into 12 months, the odd months of which have thirty days, while the other months are of 29 days each.

The total days of the year fluctuate between 3$k and 356. The differen ce

of two days is due to the fact that in the course of 39 Hejira years there are 11 leap years.

The exact length o f the lunar month i s 29 days, 12 hours, I4I4. minutes and 2 seconds.

The difference between the Christian and the Hejira years is between 10 to 12 days per annum. This means that 32 Christian (solar) years equal 33 Hejira (lunar) years minus 6 , 7 or 8 days.

The Turkish fiscal year was commenced on the year 1205 A.H.

(169 0) A.D. when the Sultan Selim III instructed the then Minister of the Exchequer, Morali Osman to put the finances of the ESnpire on a

sound basis. This year is a mixture of both the solar and lunar calendars. The number of the years is that of the Hejira, while the months are those of the Christian calendar. The number of its days i s 365 or 366 in leap year. I t commences on the f i r s t day o f March, by the Julian Calendar.

1 R.C. Tute, The Ottoman Land Laws with Commentary APPENDIX D

MONTHS OF THE MUSLIM YEAR—FROM 622 A.D.

Moharram Sefer Rabi-al Awal Rabi al Thani or Rabi al Akhir Jamad a l Awal Jamad al Thani or Jamad al Akhir Rajab Sfta'ban Ramadan Sheval Zul Quade Zul H ijje

MONTHS OF THE TURKISH YEAR

Kanun Sani (January) Subat (February) ftart (March) Nisan (April) Mayis (May) Haziran (June) Temrauz (July) Agustos (August) Eylul (September) Te^rin Ewel (October) Te^rin Sani (November) Kanun Ew el (December) 222

APPENDIX E

Cross reference list of Hejira, Fiscal (malieh) and Christian years from 1839 A.D. to

H ejira F isc a l Jewish Chrisl (Malia)

1255 1255 5600 1839 12$6 1256 5 601 I 8 k0 12$7 1257 5602 I 8 k l 1258 1258 5603 I 8 k2 1259 1259 560k I8k3 1260 1260 • l 8 kk 1261 1261 l 8 kk* 1262 1262 55oS I8k5 1263 1263 5607 I 8 k6 126k 126k 5608 I8k7 1265 1265 5609 I 8 k6 1266 1266 5610 I8k9 1267 1267 5 611 1850 1268 1268 5 612 1851 1269 1269 5613 1852 1270 1270 56ik 1853 1271 1271 5615 185k 1272 1272 5 616 1855 1273 1273 5617 1856 127k 127k 5 618 1857 1275 1275 5619 1858 1276 1276 5 620 1859 1277 1277 5 6 2 1 i 860 1278 1278 5622 1861 1279 1279 5623 1862 1280 1280 562k 1863 1281 1281 5625 186k 1282 1282 5 62 6 1865 1283 1283 5627 1866 128k 128k 562 8 1867 1285 1285 5629 1868 1286 1286 5630 I 869 1287 1287 5631 1870 1288 1287 5632 1871 1289 1288 5633 1872 1290 1289 563k 1873 1291 1290 5635 187k 1292 1291 5636 1875 1293 1292 5637 1876 129U 1293 5638 1877 1295 129k 5639 1878 223

H ejira F is c a l Jewish C hristian (Malta)

1296 1295 561*0 1879 1297 1296 #1a 1880 1298 1297 561*2 1881 1299 1298 £613 1882 1300 1299 5614* 1883 1301 1300 £61*5 1881 * 1302 1301 561*6 188 £ 1303 1302 £61*7 1886 1301* 1303 £61*8 1887 1305 1301* £61*9 1888 1306 1305 £6£o 1889 1307 1306 £6^0 1889 1308 1307 £6£l 1890 1309 1308 £6£2 1891 1310 1309 £6£3 1892 1311 1310 £6£1* 1893 1312 1311 £6££ 1891* 1313 1312 £6£6 1890 1311* 1313 £6£7 1896 1315 131k 5658 1897 1316 1315 £609 1898 1317 1316 £660 1899 1318 1317 £661 1900 1319 1318 £662 1901 1320 1319 5663 1902 1321 1319 £661* 1903 1322 1320 £665 1901* 1323 1321 5666 190£ 132l* 1322 £667 1906 1325 1323 5668 1907 1326 1321* £669 1908 1327 1325 £670 1909 1328 1326 £671 1910 1329 1327 £672 1911 1330 1328 1911 1331 1329 5573 1912 1332 1330 £671* 1913 1333 1331 £670 1911* 1331* 1332 5676 1910 1335 1333 £677 1916 1336 133U £678 1917 1337 133$ £679 1918 1338 1336 £680 1919 1339 1337 £681 1920 131*0 1338 5682 1921 13U1 1339 £683 1922 13H2 131*0 £681* 1923 H ejira F isc a l Jewish C h ristian (Malia)

13k3 i3 k i £685 192k 13Mi 13k2 5 686 1925 13k5 13k3 5687 1926 13k6 13kk 5688 1927 13k7 13l& 5689 1928 13U8 13U6 5690 1929 13k9 13k7 5691 1930 1330 13k8 5692 1931 1351 1319 5693 1932 1352 1330 569k 1933 1353 1331 5695 193k 135k 1332 5696 1935 1353 1333 5697 1936 1336 133k 5698 1937 1337 1333 5699 1938 1338 1336 5700 1939 1339 1337 5701 19k0 1360 1338 5702 I9 k l 1361 1339 5703 19k2 1362 1360 570k 19k3 1363 1361 5705 I9lik 136k 1362 I9kk 1363 1363 I9k5 1366 136k 5707 I9k6 1367 1363 5708 I9k7 1368 1366 5709 19k8 1369 1367 5710 19k9 1370 1368 5711 1950 1371 1369 5712 1951 1372 1370 5713 1952 1373 1371 57ik 1953 137k 1372 5715 195k 1373 1373 *716 w 1955 1376 137k 5717 1956 1377 1373 5718 1957 1378 1376 5719 1958 1379 1377 5720 195 9 1380 1378 5721 i 960 225

APPENDIX F

CHRISTIAN SECTS OF THE MIDDLE EAST

Ecclesiastical Churches which Provinces of the derive from la te r Roman Empire Roman Provinces Uniate Churches

Cons t antinople Orthodox (Greek) Greek Catholic

Rome Latin (Roman Catholic)

Alexandria Coptic (Egyptian) Coptic Catholic

Antioch Jacobite (Syrian) Syrian Catholic

Later Churches

Armenian Orthodox Armenian Catholic

Nestorian (Chaldean or Assyrian) Chaldean Catholic

Maronite (until 12th Maronite (after 12th century) century)

Protestants—a ll denominations but in sig n ific a n t in numbers—dating from l?th century.

* W. B. F ish er, The Middle East (New York: Dutton, 1957), p. 103. APPENDIX G

CHRISTIAN AND MUSLIM SECTS IN THE MIDDLE EAST*

LEBANON SYRIA PALESTINE (19U9) (195W (19U3)

SUNNI 253,000 2,703,000 932,000

SHIA Twelvers 22l*,000 15,000 U,ooo

Alawi 1*10,000

Druses 80,000 118,000 10,000

Ism a ili 38,000

UNIATES Latin 5,000 7,000 20,000

Maronites 359,000 20,000 U,ooo

Greek Catholic (Melkites) 67,000 112,000 13,000

Armenian C atholics 10,000 il*,ooo

Syrian Catholics 5,000 20,000

Chaldean (Assyrian) C atholics 1,000 6,000

OTHER Greek Orthodox 123,000 173,000 1*0,000

Armenian Orthodox 62,000 112,000 l*,ooo

Syrian Orthodox (Jacobites) I*, 000 53,000 1,000

Assyrian (Nestorians) 16,000

Protestants 11,000 ll*,000 7,000

* ¥ . B. F ish er, The Middle East (New Yorks Dutton, 1957), 1 1 1 . 227

APPENDIX H

SUFHEME MOSLEM (SHARIA) COUNCIL--INCOME

Type of Revenue 1933 A.D. 193U A.D. 1935 A,

Rents and Hikrs 10,972 12,712 15,313

T ithes 23,023 8 7 ,6 9 0 ^ 30,000

Land R egistry Fees k,297 11,)430 12,919

Accounting Fees 39 192 58

Government Aid to Schools 169 137 127

Orphanage R eceipts ' 738 535 919

Contributions in aid of Haram 669 921 1,U19

Haram Guide Book 3 ,1 6 6 3,688 U,283

C lin ics 196 177 325

Revenue from Tiberias Baths 1,035 ,.6X3

Sidna Ali Private Waqf 913 1,557 2, 26)4

Awqaf Mundarissa Rents and School Fees b ,085 3,809 14,566

Miscellaneous 1 ,0 0 6 2,591 1,6)44

Other Commuted P rivate Waqf T ithes 1,513 1,513 1,513

Khairat Mudawara 1,516 1,516 I ,5 l6

T otal L53/337 L129,o8i L77,223

2/ Revised tithe for 193b = L30,000 Additional tithe for 2 yrs= lit, OOO Lump sum settlem en t = b 3 ^ 9 0 T otal l67,690 228

APPENDIX I

SUPREME MOSLEM (SHARI*A) COUNCIL EXPENSE

Type o f Expense 1933 122k 2221 Administration 7,827 9,717 11,153 Mosques 10,776 12,387 13,995 Gratuities to Discharged Officers R e lie f 129 5oo 557 Debts 6,323 5,552 7,929

Maintenance of Institutions Moslem Orphanage 3,012 3,666 5,320 Takaya and Zawaya 2,9# 3,koo 3,392 C lin ics and Midwives H ospital 8b2 89k 933 Repairs and Construction o f Waqfs and Mosques 381 k,2k3 9,339 Drainage, Settlement, Regis­ tr a tio n and Tree P lanting 257 256 2,125 Taxes 2,815 3,36U 1,303 Mulids, Feasts and Ramadan 237 121 230 Mukhassassat Ahali 1,636 1,377 1,786 Audit 85 200 360 Provident Fund 50 50 Purchase of Land 39,282 k,297 Moslem Schools 3,963 k,662 5,089 Guards 516 578 591 S pecial Fund for Haram of Jerusalem and Hebron 5,000

Other Khairat Mudasrara l , 26l 1,220 1,313 Payment to Mutawallis 1 ,5 1 3 !,5 ll 1,513 T otal *W,529 * 92,980 *76,275 229

APPENDIX J

DEMOGRAPHIC INFORMATION ON ISRAEL

POPULATION—BY RELIGION

Year Muslim Christian Druzes Jewish Total 19U9 111,500 31*, 000 H*, 500 1,011*, 000 1,171*, 000 1950 116,101 36,000 15,000 1,203,000 1,370,000 1951 118,933 39,000 15,5oo 1,1*01*, 000 1,578,000 1952 122,802 1*0,1*00 16,100 1,1*50,000 1,630,000 1953 127,576 1*1,1*00 16,800 1,1*81*, 000 1,669,000 195U 131,805 1*2,000 18,000 1,526,000 1,718,000 1955 136,256 1*3,300 19,000 1,591,000 1,789,000 1956 lip -, 395 *3,765 19,791* 1,667,000 1,872,000 1957 (e s t) 11*7,000 l*5,ooo 21,000 Unavailable Unavailable

ARAB POPULATION—DISTRIBUTION

Community Towns V illa g es Bedouins T otal

Muslims 2 It, OOO 101,000 22,000 11*7,000 Christians 30,000 15,000 1*5, 000 Druzes 21,000 ‘21,000

RATE OF INCREASE—per 1,000

Muslims Ul.92 Christians 25.71 Druzes 38.1*0

A ll 37.80 APPENDIX K

BREAKDOWN OF ARAB POPULATION BY RELIGIOUS SECTS

Muslim - All Sunni with the exception of a few hundred shif a belonging to the Ahmadia sect.

C hristians

Greek C atholic (M elkite) - 18,000 Ac Catholics JS=^ ' . Latin Catholic (Roman) - 6,000 — Maronite Catholic - 2,500 Total - 26,500

B. Orthodox -=rr; Greek Orthodox - 15,500 Other Orthodox - 1,000 Total - 16,500

C, P rotestan ts All denominations but largely Anglican 2,000