The Waqf as a Prop for the Social System (Sixteenth-Twentieth Centuries) Author(s): Gabriel Baer Source: Islamic Law and Society, Vol. 4, No. 3, Islamic Law and Society (1997), pp. 264-297 Published by: BRILL Stable URL: http://www.jstor.org/stable/3399362 Accessed: 08/03/2009 21:19 Your use of the JSTOR archive indicates your acceptance of JSTOR's Terms and Conditions of Use, available at http://www.jstor.org/page/info/about/policies/terms.jsp. JSTOR's Terms and Conditions of Use provides, in part, that unless you have obtained prior permission, you may not download an entire issue of a journal or multiple copies of articles, and you may use content in the JSTOR archive only for your personal, non-commercial use. Please contact the publisher regarding any further use of this work. Publisher contact information may be obtained at http://www.jstor.org/action/showPublisher?publisherCode=bap. 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BRILL is collaborating with JSTOR to digitize, preserve and extend access to Islamic Law and Society. http://www.jstor.org THE WAQF AS A PROP FOR THE SOCIAL SYSTEM (SIXTEENTH-TWE NTLETHCENTURIES)* GABRIELBAER (1919-1982) (TheHebrew University of Jerusalem) Abstract In this essay I arguethat an importantfunction of the Muslimwaqf in the Near andMiddle Eastern social system between the sixteenth and twentieth centuries was to supportand reinforcesocial units or groupsbased on kinshipor quasi-kinship (such as relationsbetween master and freedslave), or on criteriaof social class, profession, territory,religion, linguistic-ethnicidentity, and ethnic or national identification. THE NEAR AND MIDDLE EAST, like other societies, have always been divided into social units according to various criteria. People consider themselves as belonging to groups based on kinship or quasi-kinship, territory, profession, social class in the widest sense of the term, and, last but not least, religion or linguistic-ethnic identity. It is the aim of this essay to show that an important function of the Muslim waqf sys- tem was to support and reinforce these social units and their cohesion. It is our contention that the usual division of the discussion of waqf into beneficiaries and administration is irrelevant in this context, since both direct benefit and administration can serve the same social purpose. Moreover, as we shall see, not only ahli or dhurri awqaf serve a purpose in the sphere of social relations and kinship, but also so-called khayri awqaf. For practical reasons, however, two kinds of awqaf will not be dealt with in this essay. They are: (1) awqaf founded by the Ottoman sultans, which frequently include provisions similar to those dealt with by us but merit a special study because of their political implications; and (2) awqif whose direct beneficiaries are members of the founder's family, because the dominant aspect of these awqaf is the relation between their provisions and the Muslim law of inheritance. * EditorialNote: This essay is basedon a paperpresented at the International Seminaron Social and EconomicAspects of the MuslimWaqf held in Jerusalem on 24-28 June 1979. Updatedreferences to the secondaryliterature, prepared by Miriam Hoexter and Aharon Layish, appear in the footnotes within square brackets. ? Brill, Leiden,1997 IslamicLaw and Society4,3 GabrielBaer THE WAQF AS A PROP FOR THE SOCIAL SYSTEM 265 We do not intend here to arrive at a quantitativeestimate of the prevalenceof one or anotherkind of waqf. Ouraim, for the time being, is to describe the many differentdevices and purposeswhich we have encountered,in order to pave the way for a quantitativeanalysis at a later stage. Althoughexamples quotedmay relate to a specific country or period, that does not preclude the existence of similar phenomena elsewhere and at othertimes. Nevertheless,it is worthwhileto examine whethera correlationexists between the prevalenceof certainpatterns in specific countriesor periodsand the characteristictraits of the awqaf in theirmidst. Therecan be no doubtthat a founder'sprimary concern for the posi- tion and welfare of his or her family and offspring is reflected in the institution of waqf. A waqf for private or particularpurpose, i.e. a "non-charitable"waqf, is called waqf ahll (family waqf) in Egypt and waqf dhurri ("waqf for the offspring")in the Fertile Crescent-even though its income may be assigned to persons outside of the family. The reason for the name is of course that the family and offspring overwhelminglypredominate as beneficiariesof such awqaf.The same is true regarding awqif for religious or charitable institutions with clauses in favor of particularinterests, since the great majorityof such clauses favor the family and offspringof the founder.' The primary device for guarding the interests of the family and offspring in religious or charitableawqif is to specify in the waqfiyya or deed of dedicationthat the administrationof the waqf be reservedto members of the founder's family. In the waqf register of Istanbulfor the year 953/1546 published by Omer Lutfi Barkan and Ekrem Ayverdi, we find a very large numberof awqff in favor of a cami, a mescid, a medrese, a mekteb, a zaviye, an imaret, water supply, orphans, or a combination of two or more of these religious and charitableinstitutions and purposes,in which the foundersstipulate that the administrationshould be retainedby their family and offspringfor as long as the family exists on earth.2The same provision prevails in 1 [On family waqf see Layish in this volume and the literaturementioned there; David S. Powers, "The Maliki Family Endowment: Legal Norms and Social Practices," International Journal of Middle East Studies, 25 (1993), 379-406; Yitzhak Reiter, Islamic Endowmentsin Jerusalem under British Mandate (London, 1996), 74-115; Ron Shaham, Family and Courts in Modern Egypt. A Study Based on Decisions by the Shari'a Courts 1900-1955 (Leiden, 1997), 202, 210-17, 221- 261 Omer Lufti Barkan and Ekrem Hakkl Ayverdi, Istanbul Vakiflar Tahrtr Defteri, 953 (1546) Tarthli (Istanbul, 1970). See, for example, nos. 12, 27, 66, 85, 1037, 1122, 1261, 1346, 1151, 1646, 2208, 2491; [Aharon Layish, "The Muslim Waqf in Jerusalem after 1967: Beneficiaries and Management,"Le waqfdans le 266 GABRIEL BAER Anatolian awqif of the eighteenth century and probably throughout Ottomanhistory.3 In his Khitat'All Mubarakrecorded many waqfiyyat which include the same provision: for instance, a waqf in favor of a mosque in Bulaq, foundedby an eminentcaptain of Nile boats at Bfilaq anchoragein 1044/1634-35, or the waqf of the famous landownerfrom Minya, MuhammadPasha Abi Sultain,who lived in the second half of the nineteenthcentury, in favor of the Riwaq al-Sa'ayidaat al-Azhar.4 Mubirak also mentioned dozens of awqif for public purposes which were in fact administeredat the time of writing by members of the founders' families, often an indicationof how long the founders' wish to keep the waqf in the family remainedeffective. The awqaf described above may be divided into three main categories:(1) mosques;(2) zdwiyas; and (3) sablls or public fountains, which generally were combined with a maktab or Qur'an school. Mosques that had been established in the nineteenth or even the eighteenth century and were still being administeredby the founder's offspring in the 1870s, when Mubarak compiled his Khitat, were probably not unusual. One such example is that of the Timraz al- Ahmadi mosque, which was restoredin 1190/1776 by the amir Hasan Efendi, a notableof the Tiifek9iyancorps and the son of Muhammadb. Husayn Efendi, who specified in his waqfiyyathat the mosque's waqf be administeredby his offspring; and so indeed it was one hundred years later. Another example is that of the 'Afifi mosque in southern Cairo, which was originally a zCawiyabuilt on the tomb of 'Abd al- Wahhab al-'Afifi, who died in 1172/1758-59, and which was ad- ministeredin Mubarak'stime by Ahmad al-'Afifi, one of his descend- ants.5In some cases a family's controlof the awqaf of a mosque lasted for a much longer period.For example, the mosquecalled Jami' al-Hin in Cairo, which was established in the ninth/fifteenthcentury by the amir Yisuf al-Hin, was managed by a descendant of the founder, monde musulmancontemporain (XIXe-XXe siecles). Fonctions sociales, economiques et politiques,ed. FarukBilici, Varia Turcica, xxvi (Istanbul:Institut Francais d'EtudesAnatoliennes, 1994), 158-62]. 3 See, for instance,waqfiyydt published in VakiflarDergisi, vol. 5, 221; vol. 8, 193;vol. 9, 376, 379; vol. 10, 168. [Foreighteenth-century Aleppo, see A. Marcus, The Middle East on the Eve of Modernity:Aleppo in the Eighteenth Century (New York,1989), 312-13]. 4 'Ali Pasha Mubarak,al-Khitat al-Tawfiqiyya al-Jadida (Cairo: Bflaq, 1304- 05/1886-89),e.g., vol. 4, 57 (21-22), 71 (9), 78 (30-32), 21 (21-22), 117 (29-32); vol. 5, 64 (13), 93 (3-4), 121 (5-8); vol. 6, 60 (16) (numbersin parentheses representlines on the page). 5 Ibid.,vol. 4, 71 (1-2, 9, 12-13);vol. 5, 50 (36)-51(8). THEWAQF AS A PROPFOR THE SOCIAL SYSTEM 267 Mustafa al-Hin, more than 400 years later.6In this and many other cases, the reason that the waqf of a mosque continued under family management for such a long time was that the founder's tomb was located in the mosque. When the income of such a mosque ceased, a memberof the family would restorethe propertyand mosque,7thereby keeping the waqf in the hands of the family.