By Nada Moumtaz
In the numerous small foundations that form the bulk of waqfs in Beirut in the nineteenth century, waqf, I suggested in my previous post, was the material foundation and an important means to live as a good Muslim — to get close to God, to care for one’s family as charity. Besides its worldly benefits, it perpetuated relations to God and family and these relations to God and family imbued the built environment. A shop was not simply a source of income; its income brought good deeds to its founder and it physically anchored a family.
If the modern state aimed to remake society in order to increase the wealth of the nation’s economy (a new concept) and to ensure its progress,[1] the waqf and the different vision of society that it perpetuated had to be remade. The growth of the national economy went hand in hand with the project of making land a financial asset.[2] God had no place in these property relations. The Ottoman reforms had started this process by seizing the administration, supervision, and revenues of many of the waqfs of Beirut in 1850 and subjecting them to a systematized regime of accounting and reporting, under the banner of “good administration” (ḥüsn-i idâre).[3]
But the process of transforming waqfs into economy accelerated with the French Mandate. The real-estate registry that the French Mandatory powers instituted in Lebanon had a fixed format, including “legal type” (nawʿuh al-sharʿī), owner (ṣāḥib al-milk), various rights, name of the waqf, etc… To fit the waqf into these categories of the delimitation report, the waqf, rather than God, became the owner of the parcel. This registration process helped make the waqf into a legal person, as the law eventually enshrined.[4] Waqfs tied in eternity to the particular purposes willed by founders and involving multiple claims to revenue had to be “liberated.” As the Report from the French Mandatory to the League of Nations noted: “Studies [by the French Mandatory power] are aimed at ensuring the free circulation of waqf immovables, whose inalienability constituted an obstacle to the economic development of the country. They also aimed at improving the possibilities of the management and exploitation of the communities’ patrimony.”[5] Legislation in French Mandate Lebanon allowed, encouraged, and even forced a reversion of waqf to private property.[6]
The economy was differentiated from other spheres, especially in our case, religion. Furthermore, religion was relegated to the private. The private sphere became the realm of culture and religion and the public sphere the realm of universal reason and economy.[7] In this dichotomized world, waqf, which now consisted of both “religion” and “economy,” became a problematic practice in the eyes of French colonial officers.[8] This was even more the case for waqfs dedicated to families, as charity became tied to an “abstract public utility.”[9] Waqfs were thus reconceptualized in French mandatory legislation as either real-estate wealth or religious space and charitable foundations. Only the latter came to be categorized as charitable. Family waqfs became wealth tied in illegitimate private networks, and often construed as an attempt to escape inheritance law rather than a part of estate planning and an act of charity. Family waqfs were the waqfs first targeted by French legislation that reverted waqfs to private property. However, because of Muslim opposition to French control over waqf, the legislation that rendered family waqfs valid only for two generations only passed after independence.[10] For the first time, instead of a unified law of waqf, the laws applicable to family waqfs differed from those applicable to “charitable waqfs.”
In some ways, my argument resonates with Norbert Oberauer’s argument that waqfs in Zanzibar perpetuated a particular social order, which contrasted with the British colonial state’s vision of that order. That order prescribes how “a society should be structured and who holds which roles, rights and responsibilities.”[11] Oberauer argues that waqfs in Zanzibar allowed founders to perpetuate relations of patronage with clients who did not have other means of subsistence. The British, by contradistinction, wanted families to be either autonomous units, wage-laborers or owners of capitalist enterprises, “un- hampered by bonds of dependence and loyalty.”[12] They thus redefined waqfs as either mosque or familial, with the familial only going to the founder’s family and the mosque administered by the state.
However, as I described in my previous entry, I also emphasize the way the waqf perpetuated certain relations between the founder, God, her family, and community, as acts of charity. So, I further highlight the presence of God and godliness and the way the waqf articulated a different understanding of charity, religion, and economy. It is these other modes of life that competed with the modern state, capitalism, and the private property regime that made the waqf an especially important site of intervention for modern states, colonial or not.[13]
Such an explanation differs from most analysis of the impetus behind modern waqf reforms. Some have proposed that modernizing governments, colonial and indigenous, curtailed and took control of waqfs that provided independent sources of income to religious scholars in order to undermine these religious authorities that competed with the new states. The economic importance and class dimension of waqfs are surely crucial. The French delegate of the High Commissioner on real estate matters, who stayed in this position for most of the Mandate [1920-1943], Philippe Gennardi notes that control of waqf
will allow us to exert a direct action over 4,000 religious employees, more than 30,000 beneficiaries and approximately 100,000 people who depend to a certain degree on waqfs… we can estimate their revenues to 15 million francs.[14]
But I find these explanations unsatisfactory on a number of fronts. First, they are focused on large foundations. Yet, the large foundations founded by Ottoman sultans and the ruling class were often administrated by members of the palace, and thus the “independent” source of revenue that waqfs provided to the ʿulamāʾ was still tightly tied to the state.[15] Even in smaller foundations, appointments to positions likes imām and khaṭīb, required the judge’s approval and an imperial berat.[16]
Second, assuming that the ʿulamāʾ were the main beneficiaries of waqfs eludes some complexities. In the majority of the small waqfs like those at the Beirut court in the nineteenth century, beneficiaries were family members of founders, and the administrators privileged were the most upright (al-arshad) among the founders’ descendants. The second most common administrator was the qāḍī, which in Beirut was appointed for one or two years from Istanbul.[17] The third was the administrator of the institution that is the beneficiary (the Sūfī lodge, mosque, break basket, or the Haramayn waqfs), which were not necessarily ʿulamāʾ.[18] In other contexts too, the situation is more complex. An early formulation of that connection between ʿulamāʾ and administrators is articulated by George Makdisi. [19] However, Makdisi’s citation of al-Fatāwā al-Anqarawiyya of administratorship falling on religious scholars refers to the case of the death of a mutawallī in a district with no qāḍī. In Egypt, Malika Zeghal, while noting that the ʿulamāʾ were beneficiaries of waqfs, shows that it was mostly a few who became rich through administratorships like the Shaykh al-Azhar.[20] Finally, in Istanbul, Selim Argun argues that the ʿulamāʾ got property and wealth through proximity to power, and they made family waqfs out of these properties.[21] In this case, the state’s seizing of mostly charitable foundations through the Waqf Ministry would not affect the ʿulamā as much. And as he notes, the “centralization of the awqaf did not target the ilmiye class alone” as opponents of reforms but was an element of inter-elite struggle.[22]
Third, in French Mandate Lebanon and Syria, while the so-called old guard ʿulamāʾ, land-based with strong ties to the Ottoman state, had founded many family-waqfs and could be seen as opposing reforms targeted at delegitimizing family waqfs, many of the ʿulamāʾ who opposed the French classification of family waqf as non-charitable were not part of that class.[23]
While I highlight in this entry the project of the modern state to remake the waqf, it does not mean that this attempt was successful and eradicated older sensibilities like giving charity for the family and the ḥurma (sanctity) of waqf as God’s property. It also does not mean that the modern state did not open possibilities for Muslims to reimagine the waqf. These are the new possibilities and continuities that I trace in my book. In the next entry, I will turn to the way these new conceptions of charity, religion, and economy have remade waqf today in Beirut, which I will suggest bears similarities to the transformation of the waqf in other Muslim societies.
Notes:
[1] Talal Asad, “Conscripts of Western Civilization,” in Dialectical Anthropology: Essays in Honor of Stanley Diamond, ed. Christine W. Gailey (Tallahassee: University of Florida Press, 1992), 334; building on Michel Foucault, “Governmentality,” in The Foucault Effect: Studies in Governmentality: With Two Lectures by and an Interview with Michel Foucault, ed. Michel Foucault et al. (Chicago: University of Chicago Press, 1991), 87–104.
[2] David Harvey, The Limits to Capital (London: Verso, 2006), ch. 11.
[3] Archive of the General Waqf Directorate, Ankara, Turkey (Vakıflar Genel Müdürlüğü 300.82).
[4] “Legal persons” (or in French nomenclature, personne morale) are entities or beings whom the law regards as capable of rights or duties and who are distinct from human beings, known legally as natural persons. Timur Kuran, “The Absence of the Corporation in Islamic Law: Origins and Persistence,” The American Journal of Comparative Law 53, no. 4 (2005): 785–834 has famously argued that Islamic law did not recognize legal personhood. In my book, I show that even if jurists kept repeating that the waqf does not have a legal person (dhimma), the waqf effectively has limited liability as it outlasts its founder; it has the capacity to buy and sell; its assets cannot be foreclosed for the personal debts of the beneficiaries or the administrator; and its administrator, as an agent acting in good faith, is not liable for losses of waqf revenues. As Doris Behrens-Abouseif, “The Waqf: A Legal Personality?,” in Eigentum Für Alle Zeiten? Islamische Stiftungen von Den Anfängen Bis Zur Gegenwart, ed. Astrid Meier et al. (Berlin: Akademie-Verlag, 2009), 56 argues, the waqf has “attributes of a legal personality.”
[5] Ministère Français des Affaires Étrangères, Rapport à La Société Des Nations Sur La Situation de La Syrie et Du Liban (Imprimerie nationale, 1926), 106.
[6] Decision 80/1926 on waqf substitution/ exchange (istibdāl al-awqāf).
[7] Janet Haley and Kerry Rittich, “Critical Directions in Comparative Family Law: Genealogies and Contemporary Studies of Family Law Exceptionalism Critical Directions in Comparative Family Law: Introduction,” American Journal of Comparative Law 58 (2010): 753–76.
[8] For a longer discussion, see my article “‘Is the Family Waqf a Religious Institution?’ Charity, Religion, and Economy in French Mandate Lebanon,” Islamic Law and Society 25, no. 1–2 (2018): 37–77, https://doi.org/10.1163/15685195-02512P03.
[9] Ritu Birla, Stages of Capital: Law, Culture, and Market Governance in Late Colonial India (Durham: Duke University Press, 2009), 78–79.
[10] Moumtaz, “‘Is the Family Waqf a Religious Institution?,’” 48, 71.
[11] Norbert Oberauer, “‘Fantastic Charities:’ The Transformation of Waqf Practice in Colonial Zanzibar,” Islamic Law and Society 15, no. 3 (2008): 316.
[12] Ibid.
[13] My focus on the property regime builds on David S. Powers, “Orientalism, Colonialism, and Legal History: The Attack on Muslim Family Endowments in Algeria and India,” Comparative Studies in Society and History 31, no. 03 (1989): 535–71.
[14] Ministère des Affaires Étrangères, Nantes, Fonds Syrie/Liban, 1er versement (abbreviated as MAE) : MAE251.1/Dossier Arrêté 753/1.2, 1921
[15] Amy Singer, Constructing Ottoman Beneficence: An Imperial Soup Kitchen in Jerusalem (Albany: SUNY Press, 2002); John Robert Barnes, An Introduction to Religious Foundations in the Ottoman Empire (Leiden: Brill, 1986).
[16] See Randi Deguilhem, “Centralized Authority and Local Decisional Power: Management of the Endowments in Late Ottoman Damascus,” in The Empire in the City: Arab Provincial Capitals in the Late Ottoman Empire, eds. Jens Hanssen, Thomas Philipp, and Stefan Weber (Würzburg: Ergon in Kommission, 2002), 230 for Damascus. I encountered the same process in the Beirut court.
[17] Jun Akiba, “From Kadi to Naib: Reorganization of the Ottoman Sharia Judiciary in the Tanzimat Period,” in Frontiers of Ottoman Studies, 1, eds. Colin Imber and Keiko Kiyotaki (London: I.B. Tauris & Co., 2004), 43–60.
[18] See tables in Aurore Adada, “Réseaux Socioculturels et Économiques à Beyrouth Ottoman (1843-1909) à Travers Les Waqfs” (PhD diss., Marseille, Université de Provence, 2009), 119–38. See also the stamps of administrators of various mosques and zāwiyas in Beirut for example in the accounting register at the Ottoman Prime Ministry archive (BOA.EV11192/40B).
[19] George Makdisi, The Rise of Colleges. Institutions of Learning in Islam and the West (Edinburgh: Edinburgh University Press, 1981), 46.
[20] Malika Zeghal, Gardiens de l’Islam :Les Oulémas d’Al Azhar Dans l’Egypte Contemporaine (Paris: Presse de Sciences Po, 1996), 73–74.
[21] Selim Argun, “Elite Configurations and Clusters of Power: The Ulema, Waqf, and the Ottoman State” (PhD diss., Montreal, McGill University, 2013), 182.
[22] Argun, 16 and chapter 3.
[23] I elaborate on this point in “‘Is the Family Waqf a Religious Institution?,’” 49.
(Suggested Bluebook citation: Nada Moumtaz, Waqf and the Modern State, Capitalism, and the Private Property Regime, Islamic Law Blog (Apr. 22, 2021), https://islamiclaw.blog/2021/04/22/waqf-and-the-modern-state-capitalism-and-the-private-property-regime/)
(Suggested Chicago citation: Nada Moumtaz, “Waqf and the Modern State, Capitalism, and the Private Property Regime,” Islamic Law Blog, April 22, 2021, https://islamiclaw.blog/2021/04/22/waqf-and-the-modern-state-capitalism-and-the-private-property-regime/)