The Birth of a Legal Institution: The Formation of the Waqf in Third-Century A.H. Hanafi Legal Discourse

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It is not an exaggeration to claim that the waqf, or pious endowment created in perpetuity, has provided the foundation for much
of what is considered “Islamic civilization.” The importance of the waqf has not gone unnoticed. Turn-of-the-century Orientalists undertook some of the earliest Western historical studie of the waqf, 1 whilethe survival of waqf deeds (waqfiyyas) from the Mamlùk dynasty and Ottoman empire has contributed to a sizable body of scholarship on the waqf in more recent times. 2 What has not been studied, however, are the earliest extant treatises on the waqf—the A˙kàm al-Waqf of Hilàl al-Ra"y (d. 245/859) and the A˙kàm al-Awqàf of al-Khaßßàf (d. 261/874). By definition, a waqf is an inalienable trust. In creating the waqf, the ounder/settlor3 (wàqif ) makes the principal (aßl ) of a revenueproducing property inalienable in perpetuity and assigns the usufruct or yields (manfa'a) of the property to specified persons or institutions. The property is placed in possession of a fiduciary (wàlì or mutawallì) who administers the trust for the benefit of a third party. Islamic law requires that the remainder interest be a charitable purpose. Although greatly curtailed in the twentieth century by both colonial and post-colonial governments, the waqf (pl. awqàf, and in North Africa, s. ˙ubs/˙abs/˙ubus, 4 pl. ˙abùs/a˙bàs) still continues to exist within Islamic society.



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