Citation: Anver Emon, Religious Minorities and Islamic Law: Accommodation and the Limits of Tolerance, in Islamic Law and International Human Rights Law: Searching for Common Ground? 323–43 (Anver Emon, Mark Ellis, and Benjamin Glahn eds., 2012).
*Note: All page numbers used as citations refer to the above chapter.
Anver Emon, Associate Professor and Canada Research Chair in Religion, Pluralism and the Rule of Law, University of Toronto Faculty of Law
Waqf = charitable endowment; bequest; trust; a financial vehicle through which to preserve private rights and legal title to property provided it had public, charitable purposes.
Under Islamic law, a property owner could create an endowment, or waqf, to allow him or her to keep legal title to a property while designating its revenues for the use of another person or a charitable entity, often a religious institution. Historically, there were two ways to establish a waqf: through (1)” a bequest that takes effect upon the testator’s death . . . ,“ or (2) “an inter vivos transfer of property directly into a trust” (p. 334).
A waqf endowment entailed both private and public aspects. In private law, any property owner possessed the ability to create a waqf as a private individual. This rule accounted for social and commercial structures formed at Islamic law’s founding, which was designed to govern a society of merchants, and therefore took the concept of private property quite seriously. The waqf instrument accordingly reflected a deep legal respect for private ownership (tamlīk).In public law, a waqf endowment was also meant to contribute to the public good of society, notwithstanding the right of a private individual to create it.
The concepts of private benefit and public good involved in waqf-creation led to some idiosyncratic views among early jurists when determining the types of permissible endowment beneficiaries. While Muslim jurists respected the right of dhimmīs, non-Muslims living in medieval Muslim societies, to create waqfs to benefit individuals, these same jurists struggled with the question whether to allow non-Muslims to promote their religion publicly. In the jurists’ estimation, if the aim of their medieval Muslim polity was to establish Islam as a state religion while accommodating non-Muslim minorities, using waqfs to further other religions was arguably contrary to the public good. At the same time, using waqfs established by non-Muslims to benefit Islamic causes, such as mosque-building or supporting Muslims’ trips to the ḥajj pilgrimage, might also be impermissible. Doing so would be contrary to the non-Muslim dhimmī’s faith, which the Islamic polity had a responsibility to also protect.
In the end, Muslim jurists came to no general consensus on which categories of beneficiaries were permissible for endowments established by non-Muslims for religious purposes. Some jurists banned such endowments, while others allowed dhimmis to create them through a bequest with a limited portion of their estates. Yet, in sum, the debate over this and other issues shows the effort Muslim jurists made to protect minority property rights while safeguarding the values of the dominant society.