One largely unnoticed development that has arisen in Iraq since the US invasion in 2003 has been the manner in which the Iraqi state and the Shi’i religious establishment known broadly as the marjaʿiyya have bound themselves rather tightly together in the area of waqf law. This is important, because the waqf business in Iraq is alive and booming. Shi’i waqfs in particular generate millions in revenue annually, largely from religious tourism to the Holy Shrines of Najaf and Karbala, where Ali b. Abi Talib and his son Husayn b. Ali, lay buried, respectively. These waqfs run hotels, universities, hospitals, and even airports, and provide vital public services in connection with all of these. Control over the waqfs therefore brings with it a significant level of money and power that is likely to be a source of contestation between jurists and the state over the coming years.
In its essence, the waqf is an endowment, or dedication of property, and usually land, to God. It takes two forms, either a waqf that is intended for broader charitable purposes (such as a school or a mosque) or one that is limited to beneficiaries within one’s family. Waqfs can also generate revenue, which is then spent on the beneficiaries. An example would be a date garden attached to a mosque. Sales of dates from the farm could be used to provide the necessary upkeep for the mosque. In the premodern period, waqf was a major instrument through which public services were provided. Given this, the administration of waqfs as well as the application of the rules of waqf involved a complex interplay between jurists, who made the rules and often were beneficiaries of the waqfs, and the state, which had to undertake some management responsibilities and whose officials were among the most significant waqf grantors. With the advent of modernity, the waqf has declined in importance in many states, as these states have marginalized jurists, banned family waqfs, and asserted near total control over any lands currently in dedication to waqf. Certainly most Arab states, from Syria to Egypt and beyond, have adopted this approach.
Iraq, by contrast, has taken a different path. While there have been sporadic efforts to place the waqfs under firmer state control during the period of the monarchy and the early Republic, these efforts were largely opposed strongly by juristic forces, and in particular the marjaʿiyya. The marjaʿiyya was, and is, a far more important social force than comparable Sunni institutions such as the Azhar, given how deeply revered it is among the Shi’i laity. Moreover, as an oil driven economy, the Iraqi state did not regard the waqf funds as necessary to exert control over the nation. For these and other reasons, Iraq’s laws never developed in the manner of other Arab states to enable the state to treat this once historically vital instrument and the revenues it produces as little more than a supplement to the government budget. Instead, there was a Ministry of Waqfs and Religious Affairs, and that Ministry earned no small amount of resentment from Shi’i authorities for being both heavy handed and discriminatory in favor of Sunni waqfs. However, its powers were on balance curtailed, and jurists had far more de jure and de facto administrative control than in comparable Arab states.
With the fall of the Ba’ath regime in 2003, Iraq’s Shi’i forces moved quickly to marginalize the state and assert near total control of Shi’i waqfs. The Iraq Governing Council, which was in theory merely an advisory body operating under the auspices of the US and UK run Coalition Provisional Authority, dissolved the Ministry of Waqfs and Religious Affairs, and replaced it with a Sunni and a Shi’i Waqf Bureau, respectively. The state-created Shi’i Waqf Bureau was then placed under the control of a juristically trained figure, and has remained so ever since. Much more significantly, the subsequently enacted Waqf Bureau Law firmly establishes the role of the marja’iyya in choosing the head of this state office, and indeed in its management and operation. Specifically, Article 4(2) of the 2012 Law of the Shi’i Waqf Bureau obligates the state to obtain the consent of the “highest jurist” (al-marjaʿ al-dini al-aʿla) to the nomination of the head of the Bureau. The vast majority of the Bureau’s Board of Directors are also either directly or indirectly appointed by the highest jurist.
Article 14 of the same law devolves all rulemaking upon the jurists nearly exclusively, as follows:
“The administration of waqfs, and the regulation of their affairs, among them the appointment of the trustee and his dismissal, shall be conducted in accordance with the widespread opinion of the Imami Shi’a jurists. In the event that there is no widespread [opinion], then the opinion of the Highest Jurist shall be taken, and this means the jurist with the most Shi’a followers in Iraq among the jurists of Najaf.”
Finally, and most significantly, there is Article 15, which grants to the highest jurist the power to call for state intervention into Najaf’s internal affairs. It reads as follows: “The Bureau does not administer the religious schools, and other waqfs tied to the Shi’i seminaries. Nor shall it interfere in their affairs except with the permission of the Highest Jurist.”
Two observations are worth making about these developments. The first is the dramatic success that religious forces have enjoyed in asserting near total control over the area of waqf. In more contested areas such as Iraqi family law, efforts to abolish Ba’ath era laws and orders have failed, stymied by a variety of secular forces as well as the opposition of the United States. By contrast, there has been little to no opposition to the repeal of nearly all twentieth century reforms relating to the waqf law and administration.
However, the recent developments are hardly a return to the premodern era of cooperation and competition as between jurists and state. States have become far too powerful and intrusive in the lives of citizens to make that possible. Instead, this is a takeover of state functions by the jurists. The jurists, that is, oversee an entire state bureaucracy and ensure it is functioning in accordance with what they consider appropriate. There is some irony to the willingness of the Iraqi jurists to do this, given their opposition to the political theory of “Guardianship of the Jurist” developed by the Ayatollah Khumayni and adopted in Iran following the 1979 Revolution. According to Khumayni and his acolytes, the role of the highest jurist is an overtly political one, and includes overseeing state functions. For decades, Najaf’s jurists have reacted frostily to this approach and to those who advocate for it, including very much Khumayni during his time in Najaf. However, this does not seem to have prevented the Iraqi marjaʿiyya from adopting a Khumayni-like position in the area of Iraqi waqf law.
The second observation is that, as a consequence of the devolution of power to the jurists through the state, the threat of state interference into juristic affairs is more significant than Iraqi authorities seem to have realized. Specifically, there is the rather troublesome matter that, as reflected in the quoted passages above, much power within the law devolves to the religious figure known as the “highest jurist”. The idea of the “highest jurist” currently embedded in Shi’i doctrine, was established in the nineteenth century, and is broadly understood to refer to the most knowledgeable of the living Shi’i jurists. All Shi’i lay persons are supposed to select a high jurist whom they regard as the most knowledgeable to be a source of emulation, and to follow that jurist’s rulings on all religious questions. The highest of the jurists ultimately is the one who by broad (though by no means unanimous) consensus, among laity and clergy alike, is deemed the most knowledgeable of these sources of emulation.
Seemingly aware that “most knowledgeable jurist” is hardly a standard that is administrable for legal purposes, the Waqf Bureau Law instead makes reference to the jurist with the most followers in Iraq. In theory, this person would also be the one deemed by consensus to be the most knowledgeable of the Najaf jurists. The problem is that it is no easier to determine the jurist with the most followers than it is determine the most knowledgeable one. There is no formal election by which Shi’i laity select their source of emulation, and in any event they are permitted to change their designation when a person more knowledgeable arises. These designations are thus largely informal, informed as much by juristic approbation as lay following. Following the death of a highest jurist, there is often some level of jockeying and competition among potential successors, engaged in subtly and out of public view, as might be common across nearly all religious hierarchies. The state certainly has tried at times to insert itself into these contestations, with Saddam Husayn reportedly once favoring Muqtada al-Sadr’s father, Muhammad Sadiq al-Sadr, to become Najaf’s highest jurist before turning against him and ordering his assassination. With the law as it is currently written, the state has a de jure reason to interfere in this process. After all, the law requires the state to seek the consent of the highest jurist to staff the state’s Waqf Bureau. Therefore, some state official—perhaps a state judge in a state civil court with no juristic training at all—must make a legal determination as to who that highest jurist is. That highest jurist may then bless direct state intervention into the affairs of Najaf—perhaps by closing down the seminaries associated with a supposedly heretic rival.
It is hard to believe that Najaf’s jurists or state legislators allied with them imagined this could be the outcome of their successful takeover of the state functions pertaining to waqf. Perhaps this is because Najaf’s current highest jurist, Ali Sistani, could not be credibly contested, and he has served in the role for nearly thirty years. However, the possibility is quite real, and it is an ample demonstration of some of the dangers of religion-state entanglements. A religious institution cannot take over a core state government function, and then not expect the state to exert its own influence on the operation of the institution. In seeking to protect some of its core interests, Najaf may well have put its own autonomy at great risk.