Standing in the mountains of western Yemen at the edge of a large rainwater harvesting cistern1 that I wanted to photograph, and breathing heavily from the climb, my host and informant said: âThis cistern is not like the others we saw today, this one is waqf.â Then he was quiet for a moment, clearly thinking to himself, trying to figure something out. He finally said, âActually, they are all waqfâthey are made for the benefit of all Muslims.â2
In my MA thesis,3 I describe the use of rainwater harvesting cisterns and their role in local water management and the related system of ownership structure, but I never fully grasped the concept of waqf. At that time I had few informants educated in Islamic law who could explain the legal framework of waqf and I did not have the language skills to understand the texts of Islamic law. On several occasions, before I was able to investigate the topic of waqf in greater depth, I thought, what does it mean that that specific cistern was waqf? Or that they all were waqf? And what are the implications of that fact in the local society? Would that cistern be taken better care of compared to other cisterns because of its religious status as waqf? These basic questions are one of the foundations of this book.
The institution of waqf (pl. awqÄf) in Islamic law is in many ways similar to trusts, endowments or foundations in present day, western law. In premodern Muslim societies, infrastructureâand especially urban infrastructureâwas to a large extent established and managed as public foundations, that is, waqf. This was not only the case for mosques, which are nowadays the main remnant of official, formal awqÄf, but also for schools and scholarships for education, services for the poor and sick, the public water supply, community houses for the reception of officials and travellers, and halls for holding local celebrations and religious festivals.
As a thematic focus, this book concentrates on ânon-mosqueâ public foundations in Yemen and most of the examples are related to the public water supply. Water supply serves as a typical example of the non-mosque related services that the institution of waqf was a vehicle for. Water supply is also a type of service, or public infrastructure central to both Yemeni and western development discourses and thus it is a shared, common focus that transcends the secular/religious divide or the divide between Islamic studies, history, and development studies. This book provides a legally oriented ethnographic description of a truly local mode of management of public resourcesâa local mode that should not be overlooked in the ongoing quest to find locally accepted legal and political vehicles for managing public, common good.
1 Waqf as Public Infrastructure and Welfare in Muslim Societies
In the study of Yemen, anthropologists and social historians have been reluctant to look into how local economic and legal institutions were integrated into and related to broader and regional structures of Islamic law. The importance of waqf or public foundations in local economic and legal life in Yemen is one such field that has been relatively under-represented, with a few exceptions;4 this is largely because waqf as a phenomenon is situated between the usual foci of historical-ethnographic and Islamic disciplines. I discuss this further in chapter 2.
The institution of foundations (waqf, awqÄf) in Islamic law has been central to everyday life in the Middle East for centuries, especially in the cities. It is easy to forget how important infrastructure is for a society: What would one do without public wells, schools, scholarships, and stipends for the poor, etc.? And what does it mean that these services are public? What role does âthe publicâ have in taking care of the weak and those in need? What types of discourses of âpublic affairsâ existed? Was there a notion of âwelfare societyâ? Did this overlap with religious values only? Premodern concepts from the Middle East seem to centre around different combinations of customary, local and tribal law, and of course, Islamic law (sharÄ«Ê¿a). Islamic law was undoubtedly the most âuniversalâ and formal of those mentioned. It was also more situated in writing and written texts than customary or local law.
1.1 A Non-State Yet Public Legal Institution
In premodern Islamic law there were mainly two categories for public management and the redistribution of resources: public or charitable foundations (awqÄf Ê¿Ämma, khayriyya) and the common property of Muslims (bayt al-mÄl). The latter, bayt al-mÄl, was usually managed by the ruler (in ZaydÄ« Yemen; the imam) and held as state property. One could say that state property was a type of public sphere in which there was a good deal of money in circulation, but most of this served to support the state itself. Clearly, zakÄt and the bayt al-mÄl were important political tools for the state rulers.
The public foundations, in contrast to the public treasury (bayt al-mÄl), were only partly controlled by the state. The state often ascribed to itself the responsibility of inspectorship (naáºÄra) and legal guardianship (wilÄya) over waqf that had no private guardian (mutawallÄ«). However, according to most interpretations of Islamic law, foundations could be made and managed completely without interference from the state. From this perspective, public foundations are ânon-governmental.â At the same time, Islamic law provides the state, or the supreme Islamic legitimate authority, with the right to interfere in the management of the public foundations if they are misused or in need of protection from usurpers. Thus waqf is not entirely non-governmental.
Waqf could be made for both private (waqf ahlÄ«, dhurrÄ«) and public (Ê¿Ämm, khayrÄ«) purposes; this book focuses mainly on the latter. It must be noted, however, that the distinction between the two categories is often deliberately blurred, as I demonstrate in detail here.
From a legal perspective, waqf consists of a transfer of a property or a right from a private owner to a beneficiary, such that God theoretically becomes the new owner and the beneficiary has the right to its use or benefit (usufruct, manfaÊ¿a). In the case of a public building, a school, a water stand or a house for the poor, the right of use would be to gain access to these services and physical structures. Those holding the right of use were called âbeneficiariesâ (al-mawqÅ«f Ê¿alayhim, maá¹£rif) and in a public waqf this right was open to anyone and not restricted, sold or inherited. In a private waqf these rights could be transferred to new generations according to specific rules, but not through inheritance proper or sale.5 This type of waqf is usually called âfamily waqfâ (waqf dhurrÄ«,âahlÄ«, orâkhÄṣṣ).
From a religious and theological perspective, waqf was seen as an excellent form of charity, a so-called âcontinuous charityâ (á¹£adaqa jÄriya): The one who gives something as a foundation (the founder) has performed an act that produces continuous merit from God (ajr, thawÄb), even in the future, in the period after the death of the founder and before the day of judgement. According to a well established ḥadÄ«th (a saying or an act of the Prophet), which can be found in several different versions, man can only obtain such a continuous merit from God by leaving something good behind him in the world, something that falls under one of the following three categories: Continuous charity, useful knowledge or a good descendant remembering and praying for him.6 All other types of good deeds stop at the time of death. In Islamic legal theory (fiqh), in debates concerning waqf, it is stated that waqf is such a continuous charity, just mentioned by another term. The term waqf as referring to charitable foundation is not found in the QurʾÄn and rarely appears in the ḥadÄ«th. Other types of charity, such as charity (á¹£adaqa) intended to help a poor person, only earn the giver reward one time. These two aspects, continuity (taʾbÄ«d) and a good and pious purpose or intention (qurba, taqarrub) have long been at the very core of Islamic waqf theory;7 at the same time they have proved problematic, since they are difficult to define in practical terms that are legally effective and useful in daily life. In practice, waqfs were often made to circumvent inheritance rules, and to keep large estates of land under control of the head of the family or the clan. If not held as waqf, land must be divided over the generations according to the Islamic rules of inheritance. Thus without endogamous marriages, a family can lose their land if daughters marry outside the family, as their offspring belong to another patrilineal clan (as demonstrated in chapter 5).
Public foundations could also be drained of resources by actors like the founderâs descendants, the administrators or guardians, or the tenants of the assets, any of whom might use grey areas, or ambiquity in the law. Grey areas and ambiguities in the jurisprudence (fiqh) meant that it was possible to circumvent the law by legal ruses (ḥīla, ḥiyal). Such circumventions often became the new rule if they were allowed to continue; they became recognized at the legal level in courts, though not entirely in an ideal juristic sense and according to the ideal definitions of a waqf.
Doctrinal theory and contextualized legal practice can at times be so far apart that the historian and the anthropologist become lost in juristic details that may never have been practiced in reality outside the academic circles of the law schools. In practice, the two aforementioned conditionsââcontinuityâ and âa good, pious purposeâ (qurba)âwere subject to compromises in daily interactions with the mundane, social, real world. These compromises were reincorporated into the legal theory under the legal maxims of âcustomâ (Ê¿urf) and â(public) interestâ (maá¹£laḥa).8 Judges also had a limited power to enforce pure theory and had to follow established court practice and to a certain degree the wishes of local elites. In reality, the power of the patriarchal, extended family and clans affected the formation of the institution and law of public waqf. In that respect, waqf law is very much situated in a language of private contractual law, where waqf was seen as a private legal personality9 in a community among other private owners, and much less under âpublic law,â yet the public law component should not be underestimated, and we return to it below.
1.2 The Transition to the Modern World
In the twentieth century the old public foundations in the Islamicate world were overtaken by swift economic development as new colonial and later national infrastructures were built. This new infrastructure was owned and managed by the states themselves, not as independent or local foundations. The individual waqfs, and the institution of waqfs as such, were often perceived by the secular-oriented elite as something premodern and old-fashioned, and as something belonging to the religious sphere rather than the civil, public sphere. The old public foundations were often administered by religious scholars (Ê¿ulamÄʾ) and conservative actors who were not educated in modern sciences and administration. The old hospitals, orphanages, water stands, wells, QurʾÄnic and sharÄ«Ê¿a schools were seen by many as remnants of the past that were not terribly useful. Here, it should be noted that the process of modernization took quite different directions in different countries of the region.10 Areas with little state influence, as in large parts of Yemen, saw less radical change. Much of the land and the assets that belonged to these foundations were often covertly taken over by private individuals, rich landowners, bureaucrats in the waqf administration, or overtly by the state itself. Below, we see how the advent of modernity has affected the waqfs (pl. awqÄf) in Yemen (especially in the former Yemen Arab Republic or Northern Yemen).
The mosques did remain as waqf after the onset of modernity, and their numbers multiplied. Mosques had been managed as waqf, such that each mosque had its own sources of waqf income. When the post-colonial nation states were founded, most of them created a separate ministry for foundations (also called endowments, or religious endowments), typically called the âministry of awqÄf,â often with the addition of the words âreligious guidanceâ (irshÄd). These ministries were responsible for all the public foundation properties and thus the finances of the mosques, and for the regulation of the ideological activities related to them. What in the mediaeval period was a fledging system of supervising various types of public foundations now became a âministry of religious affairs.â This ministry often took on a strong ideological function and came to be used by the state to integrate religious activities into frameworks that the state could control.
The fact that there were once, not so long ago, public foundations that aimed at providing services to people and the society, and that these were also to a large extent private and not state controlled, now tends to be forgotten, both by religious scholars and ordinary people. Occasional attempts are made to revive the institution of waqf, but it is difficult to point out clear trends toward this. Some reforms have been made in some Gulf states and interesting legal revivals can be found in Malaysia and Indonesia. In Turkey, foundations, although heavily reformed, remain an important part of civil society.11
Because waqf is often seen as a part of a religious field, many secular actors are reluctant to engage in a âreligiousâ Islamic discourse over which they feel they have little control. On the other hand, some of the most conservative religious forces, the so-called SalafÄ«s, are reluctant to recognize the institution at all, since most of the waqf rules are not mentioned, at least not literally, in the QurʾÄn and only to a limited extent in the Sunna. For Islamists, transactional law such as waqf is not given priority of interest over more politically potent and popular parts of the law, such as ritual law (i.e., law that relates to matters of worship). Waqf legal theory is necessarily rather academic in nature and must somehow be related to fiqh (Islamic legal theory)12 as formulated in the classical law schools, therefore making it difficult to popularize, especially given the large gap between the ideals and realities of law in the specific legal field of waqf.
Generally, when foundations are created, the founders (wÄqif, wÄqifÅ«n) also make a written document (waqf document, waqfiyya) that is made public and/or entered into public court registers. These documents contain detailed information about who established the foundation, from what assets, and how it should be administered in the future. Even today these documents can be very troublesome, particularly when they reappear after decades and lead to conflicts over who actually owns what. These documents include a standard formulae stating that the individual waqfs are the property of God, and âthat they cannot be sold, cannot be given away, cannot be inherited, until God inherits the earth and those upon it.â
2 Field, Scope, and Focus
2.1 Yemen, Local Law, and Waqf
Yemen is a mountainous, in large part tribally organized (although mainly sedentary), poor country located at the southwestern corner of the Arabian Peninsula. For most of the Islamic period, the agriculturally marginal northern highlands have been beyond direct government control and have been governed by local sedentary tribes, while the south, the coastal areas, and the western mountains have been more feudal and politically stable. Although egalitarianism is portrayed as a crucial tribal value, especially in the north and northeastern areas where tribalism is strong, local shaykhs and elites tend to own more land than others and they represent the government locally. They thus connect the local communities with the state through ties of patronage. In the highlands, prior to 1962 the central state was headed by the (ZaydÄ«) imam and often ruled from Sanaa with the military aid of the northern tribes, who extracted taxes from the more politically docile, but agriculturally fertile south and west. Tribal leaders and local elites received percentages of the collected taxes and filled important positions in the state. In the past the education system and thus the basis for the legal system was geographically fragmented, mainly outside government control,13 and to a large extent funded by local waqf and run by local Ê¿ulamÄʾ, scholars of Islamic law. From the tenth century CE, Zaydism gradually became the most influential form of Islamic doctrine in the highlands, and was more or less prevalent around and north of Sanaa after 1324.14 The basic tenets of ZaydÄ« state theory are largely oppositional,15 and together with hundreds of small rural centres of Islamic learning (hijra, hijar) each with their own tribal patronage, a semi-autonomous legal system emerged, one that was difficult for the elites in Sanaa to control. It produced a perception of law as something greater, more lasting, and more legitimate than the government or the state itself and at times when the state was weak or even absent, significant aspects of the legal system were still applied locally and effectuated in accordance with local needs. Islamic law, tribal law, local customary law, and state law merged and were codified in ways that differed slightly from area to area and period to period. While the contemporary waqf law was constructed by modern state institutions, it still contains strong elements of the aforementioned legal ideologies, especially Islamic legal theory (fiqh); we return to this point in more detail, especially in chapters 5, 6, and 7.
Map of the northern (western) part of the Republic of Yemen.
Copyright Erik Goosmann.
Over the centuries, waqfs have been used by actors in local communities and notaries and judges have served the local societiesâ needs for regulating and sanctioning local ownership structures. This was and still is mainly done through the language of Islamic contractual law; each contract or ownership document represents a public confirmation or transfer of a set rights from one legal person to another, and conveys the legal strength, time period, and legal validity that the users request. Not all dispositions were equally important. A transaction that was very important, the validity of which had to be strong, would require prominent, perhaps even nationally renowned witnesses. An example here is the inheritance division of the land of a shaykh in Rayma; the document, which was shown to me, had been signed in the 1950s by the judges of the Supreme Court in far away Taâizz. Important waqf documents similarily involve a large number of witnesses, more than the two required in Islamic contractual law. At the opposite end of the scale we find very simple waqf documents, the type that can be drawn up by any person in the village able to write and thus act as a notary. Such a simple waqf document would be much cheaper to set up, while the elaborate waqfs involved paying for access to the right judges and inviting the right witnesses. Sometimes the founder of a waqf did not want it made more âformalâ than necessary; if the waqf was made simply as a strategy for other means, he or his children might more easily revoke it and privatize it later. Revocation such as this was only possible if, originally, it was only âsufficientlyâ strong and, for example, not entered into public registries.
Minor contracts could be oral, yet most of those involving permanent transfers of assets were made in writing and the notariesâ or judgesâ handwriting acted as a proof of authenticity, in addition to the two required witnesses. In this way, the contracts were valid even after the original parties passed away, or valid in a larger geographical area, as the contracts did not depend on local face-to-face knowledge of the villagers. Yemenâs thousands of agricultural terraces all have individual names and are defined in such written contracts sanctioned by the local legal system, which is more or less respected by the local community and the local elite.
In this book I am concerned with access to agricultural lands that produce a significant surplus every year, though other forms of assets such as real estate and urban building plots are also important. In waqf, these assets were donated to beneficiaries, either private or public or a mix of the two.
2.2 Understanding Waqf in Its Social Context
The general aim of this book is to deepen our understanding of the role of the institution of public foundations (waqf) in Yemeni society, both in the past and the present. In the Yemeni context, there has not been much research undertaken on this topic. Because of Yemenâs particular history, landscape, and legal traditions, an extrapolation of academic knowledge of waqf studies from, for example, the Ottoman context, must be made with caution. Often academic texts that do treat this topic digress into the problematic relationship between the doctrines and theories of Islamic law on the one hand, and the established, practiced law on the other.
The difference between these two is arguably not only an issue of âtheoryâ versus âpractice,â but rather, as I argue in the book, more a landscape of different debates and contestations of legitimacy and validities that only partially overlap. As I elaborate below, all these debates have their own âtheoryâ and also âpractice.â For instance, the scholarly debates in Islamic law are situated in texts and contexts that span centuries and continents, while the everyday waqf practices in small rural villages are mostly undertaken by actors who have no insight into the details of theoretical law, and who may even be illiterate. They have their own perception and version of the law in both norms and practices, and these also deserve academic representation. These two âfields of waqf,â legal theory and local perceptions and practices of waqf, are analytically separate study objects, yet are strongly interrelated. This book focuses on and conxtualizes this interrelationship between Islamic scholarly jurisprudence (fiqh) and local forms of law.
2.3 Defining the Geographical, Historical, and Social Field
The area under scrutiny in this study cannot be defined absolutely in geographical space and historical time. Sometimes the relevant field is a specific village, at other times it is the wider intellectual Islamic tradition of Islamic law. I usually use the term âYemen,â though Yemen is a large and diverse area. Most of the legal texts and cases are from Northern, Upper, ZaydÄ« Yemen and most are less than 500 years old. Most waqf and other legal documents16 are less than 200 years old and come from the wider Sanaa area. Narratives and recorded memoirs span the lifetime of living informants, the majority from Sanaa, but I also made several trips to other cities and regions in Yemen, such as Zabid, Rayma, and Hadramawt. Waqf in Yemen is not necessarily best understood when separated into âZaydÄ«â and âShÄfiÊ¿Ä«â law, or divided into âQÄsimÄ«â or âRepublicanâ waqf practices. The resemblances are many and sectarian and historical divisions are not always analytically fruitful. As I demonstrate in this book, some of the main, reoccurring legal problems that relate to human agency are the same in ZaydÄ« and ShÄfiÊ¿Ä« areas and are found from the QÄsimÄ« imamate (from 1636), or even before, and until today. Such âlegal problemsâ or âgrey areasâ are great opportunities for us to see what is actually going on in the field, much more so than analysing rules or cases dealing with âthe ideal waqf.â
2.4 Waqf and the Development Sector: Engaging in Islamic Law
The need for more knowledge about the role of waqf in Yemen is not purely academic. The development sector is continually looking for ways to anchor the legitimacy of its infrastructure projects in the social and cultural web of local communities, especially in a weak state society like Yemen. They are looking for ways to set up, administer, and create types of project ownership that increase the localsâ perception of the legitimacy of development projects. The question of whether the public waqf is a suitable institution for the use of the development sector cannot be fully treated in this book; however, certain key issues are clarified. Arguably, the questions that can be raised on the basis of this book are fundamental to those who wish to establish such answers and to use the concept of waqf actively in their development projects. As a part of Islamic law or sharÄ«Ê¿a, the term waqf is readily associated with the many negative connotations of âIslamic lawâ often found in non-academic, western discourses. At the same time, as a means of managing the public good, the institution of the waqf incorporates fundamentally universal aspects that are not endemic to Islamic law or Islamic societies; waqf is not a concept that has been fixed once and for all, but rather a set of ideas and practices situated in specific historical and social contexts. Claiming that waqf is suitable, or not, for use in the development sector is simply impossible without also engaging in a wide range of local and contemporary debates concerning what waqf should be. Perhaps, hypothetically, only certain parts of the local understanding of waqf will be found to be compatible with the standards of the development sector; that is, some aspects of the concept can be used and other parts must be rejected. In any case, it is necessary to engage in the debate, even if the arguments must take the form of âsharÄ«Ê¿a-language.â Choosing to reject such a dialogue and instead introducing a new, imposed sets of morals and âconcepts of public goodâ risks total failure if the locals do not adopt the discourse and see the compatibility. Not only will development aid always carry a political dimension, but it will also carry a legal and institutional aspect. This book provides new background information that may facilitate further research and debate on these topics.
2.5 Thematic and Methodological Focuses
The book has the following methodological focuses, both of which are related to the construction of legitimacy, authority, and validity in waqf law and practices: One is a focus on the knowledge17 in use in waqf practices and the second is a focus on certain problematic âgray areasâ in the legal theory (waqf fiqh).
The focus on knowledge makes it possible to see a waqf as a legal institution that is used to redistribute certain goods in society, and it allows an anthropological perspective that can be combined with that of the analysis of legal/normative texts. By looking at how legal knowledge is constructed, transmitted, sanctioned, and put into legal use, it becomes possible to focus on how human agency shapes the waqf institution and creates local social observable effects, and it also becomes possible to see how âfacts on the groundâ affect legal theoretical discourses. I elaborate on this below.
A more specific methodological delimitation in this study involves looking at the borders of the legal phenomenon of waqf, rather than at its ideal type. In this book the term âvalidityâ is used in a general way. In a narrow legal sense, it refers to the binary distinction so often used in the formulation of legal rules and in legal theory (fiqh); âlegalâ (e.g., jÄʾiz, á¹£aḥīḥ) and âillegalâ (e.g., bÄá¹il, ghayr á¹£aḥīḥ), or valid and invalid. In more general usage, the term validity is used in a broad sense to include the notion of ârightâ and âwrongâ as expressed by informants, and in this sense the term is not more accurate than other terms such as âauthorityâ or âlegitimacy.â In any case, it refers to the emic claims of âcorrectnessâ and as we see, this is not always clear and univocal, even in legal theory,18 especially when actually observed practices are far removed from the claimed ideal standard.
By maintaining a methodological focus at the very edge of validity, authority, and legitimacy related to the phenomenon of waqf, the definition of what waqf is becomes significantly more useful, and it becomes possible to see and analyse forms of waqf that do not follow the ideal type, but that are present to a great extent in Yemeni history and society. The core definition of waqf, as it is given in introductory books of Islamic law, is well known and fits well as an overview. Yet the historical and social reality is much more complex and this reality is also reflected in Islamic legal theory. The border areas of the waqf phenomenon are the most interesting parts of waqf fiqh because the dynamics between Islamic law and society can be seen here more readily, as for example, the ways âcustomâ (Ê¿urf) and âpublic interestâ (maá¹£laḥa) as legal maxims are drawn upon to validate legal rules otherwise not found in the QurʾÄn or the Sunna. This perspective also highlights the ways that human agents continually utilize the frames and language of fiqh to create new legal constructions in acts of entrepreneurship. If I had opted to focus on the ideal waqf, the relationship between legal theory and local practices would remain difficult to trace beyond assumptions and tautologies.
Borders or âborder areasâ of validity thus refer to certain debates in the legal theory of waqf in which the very foundations of the waqf institution are threatened or endangered because of the discrepancy between ideal doctrine and observed practice and thus also refer to an area where doctrine and local practices interact over time. These topics in waqf, such as the balance between waqf and inheritance law, lease law and other forms of âsemi-waqfâ give us an opportunity to analyse in depth how doctrine is also affected by the presence, or lack of, political systems and enforceability. I argue that the binary distinction of âtheory versus practiceâ is not a fruitful one as legal theory is also situated and located in certain practises, such as the academic madrasas (Islamic schools), and local practises also involve theories in the form of knowledge about operative waqf law, the history of individual waqfs and morality in behaviour related to waqf. Each of the main chapters in the book (chapters 5 to 7) is centred on one such âtopic,â where the construction of legal validity is the common focus.
3 Types of Data
At the start of the research, I planned to focus on specific waqf cases of public water supply and the administration of public water infrastructure and to use three types of empirical data for each case: (1) observations of physical structures together with (2) informantsâ narratives, and (3) related texts (waqf documents, legal documents). Methodologically, it was difficult to find these three types of data for each specific case simultaneously. Often one or two types of data were missing, creating a patchwork of data that was quite broad, yet weak in the sense that it was too dispersed. The thematic focus on water structures and on public water supply remained, however, since many of the problematic issues for water supply waqfs are the same as for other types of waqf. Early on I shifted the research focus towards topics in waqf legal theory, also relevant for other types of waqfs. Thus a fourth type of empirical data became the most important, namely the legal debates. This shifted the research into a more text-oriented study than originally planned.
At times all four types of data are connected in the analysis; this is a costly, but rewarding undertaking. The cost is a lack of statistical certainty because of the low number of cases, while the benefits pertain to understanding the complex two-way relationship between legal theories in texts and practices on the ground, which are investigated in an explorative (as opposed to fixed) and qualitative (as opposed to quantitative) manner.
3.1 Discourses of God and Good: Laws to Promote the Public Good
Legitimacy or validity in waqf, or âpublic infrastructure management,â is defined according to the texts used in this study and, according to the informants, it is defined as ultimately stemming from either (1) âGodâ as mediated through certain texts or (2) from what is âthe best for society,â or (3) as a complex mix of these two. This is a rather philosophical distinction that is partly analogous to the concepts of âethics of dutyâ and âethics of consequenceâ on the one hand and a division between a âreligiousâ belief system and a âhumanitarianâ system on the other hand. There is not necessarily a conflict between them, yet for some informants, and for some questions there is a conflict. Theological issues such as whether or not man can, by himself, understand right or wrong outside the text of the revelation is something that is a highly relevant topic in ZaydÄ« theology, but arguably not relevant when looking at legal theory or the âbranches of the lawâ (fiqh, furÅ«Ê¿), such as waqf law. The informantsâ own epistemological reflections over such ultimate sources of validity are incoherent, inconsistent, and unsystematic, yet, some more or less clear patterns can be found. So far, there is nothing necessarily âIslamicâ about this; it is more of a question of how to translate the words âGodâ and the âcommon good.â Identifying the exact nature of the âIslamic componentâ of waqf is not the primary focus of this study, rather the focus is on how the term âIslamicâ and hence âIslamic lawâ and waqf are contingent parts of central perceptions of what is âpublicâ and âpublic interest,â and consequently also codified into and acted out as constructions of âlawâ in a social setting. Terms such as âpublic infrastructureâ and âpublic interestâ are mostly secular terms in western discourses and are situated in certain social and historical contexts and therefore, ultimately, the translations of these terms remain dependent on the knowledge and even the ideology of the reader.
This being said, the frame of reference for the legal theory behind the institution of waqf is strongly anchored in the wider tradition of the Islamic sciences and especially the vast body of Islamic legal theory and law. By contrast, waqf, or the arguments used in waqf discourse, cannot possibly be understood without also seeing them as parts of the vast knowledge tradition of Islamic law in general and ZaydÄ« law specifically. While a single waqf is a phenomenon unique to that specific village, situated in face-to-face structures, ownership, village history and memoryâthe legal institution of waqf exists in a knowledge tradition shared over continents and centuries.
3.2 Separate Fields of Waqf Knowledge
The levels between the âlocalâ and âthe Islamic,â or the âlittle and great traditionsâ19 cannot be seen only as orderly layers of doctrinal truthsâthe reality is far more complex than that. In this book I use a model of four such âdiscourses,â or here âfields of knowledgeâ as an aid to understand approximately where the text, narrative or observation under scrutiny belongs. These âfieldsâ are thus both methodological models of what to look for, and to a certain degree also a model of how to understand the patterns emerging in the analysis. I see the practices and norms related to waqf in this book through Fredrik Barthâs knowledge perspective20 and I use four different âfieldsâ of waqf knowledge in the analysis:
-
Fiqh, Islamic legal theory;
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Codifications of waqf law;
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Individual legal and administrative cases and documents; and
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Local knowledge of daily waqf users.
I elaborate on these fields in the next chapter, and reflect on the place of this book in the tradition of studying Islamic law in Yemen.
3.3 On the Tradition of Western Ethnographic Research in Yemen
Modern ethnographic fieldwork in Northern Yemen was made possible when the civil war ended around 1968. During the 1970s and 1980s a large number of ethnographic studies were undertaken. Several of these are of excellent quality and have been published as theses, academic monographs or articles. Many of those who undertook ethnographic fieldwork in this period later changed their focus into more text-oriented studies as their language skills and thus abilities to study Islamic and local texts improved. Well-known examples are Daniel Varisco, Paul Dresch, Brinkley Messick, Martha Mundy, and Shelagh Weir. These scholarsâoriginally anthropologistsâlater wrote historical works and edited historical or legal texts. Most of them did their fieldwork in villages and towns of the highlands. During the 1990s fewer anthropologists made the typical broad spectrum, ethnographic descriptions based on local, rural fieldwork. This was not only due to a change in theoretical focus and fashion in the discipline of social anthropology, but was also related to the feasibility of undertaking long-term, rural fieldwork in Yemen in a hardened political climate. The present study follows this new trend of more narrow thematic focuses. Numerous geopolitical incidents after 2001 have changed the attitude of Yemenis towards foreigners and affected the possibility of undertaking long-term ethnographic fieldwork.
4 Fieldwork
Fieldwork in Yemen presents some very clear challenges and limitations.21 The logistical challenges of fieldwork to a large extent shape the process of collecting data. I used both textual analysis and ethnographic methods and read, consulted, or discussed the texts in this study with various informants. This method of combining textual analysis and ethnographic methods was at the core of the research process and laid the foundation for later review of those same texts, and other similar texts, âaloneâ after departing from the field. Both methods have been mainly qualitative and explorative, though I have also tried to obtain a degree of representativeness by checking that the category or concepts do appear in the data with some degree of statistical evidence. Below I elaborate on the nature of the fieldwork and the methods and some of their main strength and weaknesses.
The fieldwork was not one of classical ethnography that might involve staying in a single local community/social network for a long time. The object of study dictated a multi-site approach.22 Because waqf is only a limited part of local life in a certain village or town, the larger patterns of waqf administration and legal systems could not have been followed if I had stayed only in one location. Waqf is practiced and âknownâ by legal and administrative actors and elites in regional networks and institutions of different scales. Thus I directed my time and effort towards these specialists and prioritized them over ânormalâ informants. Practical and logistical challenges in rural Yemen also affected my ability to choose a single site and undertake long-term, ethnographic fieldwork. As a westerner at this time, in the 2000s, it was difficult to undertake such fieldwork because the Yemeni government increasingly restricted foreigners from staying in the countryside.
I undertook the ethnographic fieldwork for the present study over a total period of eleven months, spread over three separate periods between January 2008 and January 2010. The main bulk of time was spent in Sanaa, with some day trips to villages inside the larger Sanaa area. In addition, I took longer trips to Zabid, Rayma, and Hadramawt. I obtained research permission and a residence permit from the Yemeni Centre for Studies and Research; I originally requested this from the French research centre in Sanaa, CEFAS.
For the most part I met with informants who were formally educated and many of them held bureaucratic positions in the ministry of justice and in the ministry of awqÄf. In the wider awqÄf system there was a general scepticism about documenting the many discrepancies between ideals and practices. Thus the most useful informants were those who knew well what waqf is all about and had information they wanted to share yet did not have official positions related to waqf administration. For example, in Yemen, a fair number of taxi drivers and people one meets in daily life in markets and restaurants in fact have a higher education, but are unemployed. Many of these people provided important information and perspectives; their usefulness was especially related to the fact that they came from all over Yemen and from different parts of society.
Most scholars who have done ethnographic work in Yemen describe the importance of the afternoon qÄt chews23 as an important arena where new informants could be met. There, I could explain my project and what I was doing to a wider group and observe reactions, hear stories, and gather information. At best, these were effective semi-structured group interviews or focus groups. However, the setting was difficult, if not impossible to plan and being a guest also limited my ability to insert my research interest upon the group and their discussions. Many of my personal friends and key informants belonged to the sayyid24 and qÄá¸Ä«25 houses and several were grandchildren of well-known ZaydÄ« scholars and high-ranking administrators, civil servants, and lawyers in the recent past. This younger generation typically tended to have tried traditional, higher studies of Islamic law and some were at the time studying at the faculty of sharÄ«Ê¿a and law (Kulliyyat al-SharÄ«Ê¿a wa-l-QÄnÅ«n) and at the university in general. Some had also worked as lawyers, judges, other bureaucrats in the beginning of their careers.
Many of the middle class and the new rich do not value education in the humanities or the traditional religious sciences and have little knowledge about a topic like waqf. I met many people, even some with doctoral degrees, who had little knowledge of what waqf was, other than âmosques, cheap flats, and cheap urban building plots.â Such perceptions are also important for the study, but in terms of the time I spent with different groups and networks of informants, my main focus was on those who did have a relationship with and knowledge about waqf. The same applies to interviewing daily users of waqf water stands or other waqf services and structures. Information related to these issues usually came along with the daily routine of life in the city, and events such as being unexpectedly invited to the homes of friends of friends; therefore such meetings were often not planned. When I visited villages I would go with someone with a relation to the field area, either a relative or a professional official of some sort. I developed a rough interview guide, although most of the time the conversations flowed freely. Usually, the visit took place during the daily after lunch qÄt session, but often, it was hard to reject invitations for lunch as well. Quite a few of the informants enthusiastically welcomed me and took me around to visit their friends and relatives without informing me in advance of the plans. Thus a large part of the flow of information was obtained during occasions that were quite unplanned and unexpected. The hospitality of the many informants that gave their time and took me around cannot be overstated and on such occasions it was often difficult to reject their friendship simply because they did not know enough about waqf. Fieldwork merged with the role of being a guest and a friend. Many of the documents I asked for were difficult to find and even more difficult to copy. Thus in some cases I was able to see waqf documents and even registers (miswaddÄt), but was not allowed to copy them. In a few cases I was allowed to copy them, but not to publish them.
It took much time and effort to approach the ministry of awqÄf and its archives and engage in learning waqf legal theory and understand the reasons, according to the informants, that this knowledge is important. The fieldwork was facilitated by following certain focuses or common tasks that could be shared with informants based on their interests. One of these tasks was obtaining historical material in the form of waqf documents, the other was engaging in the world of ZaydÄ« waqf fiqh.26 I paid for an assistant and a teacher to create a certain daily continuity in at least some areas of the fieldwork. By seeking private instruction in fiqh, I could focus on the topics important to me, rather than following the normal career of a sharÄ«Ê¿a student and beginning with the basics; this would have meant a totally different course of study. The knowledge I acquired by studying fiqh was a crucial door opener and conversational âice-breakerâ and my entry point to important intellectual engagements with informants.
From the perspective of most informants, waqf was merely a part of the larger concept of Islamic law (sharÄ«Ê¿a) and âIslam.â In the eyes of my well-educated informants these are not absolute agreed upon categories and often the discussions that took place were well beyond my ability to understand them. Nonetheless, I became part of such discussions. In Yemen, individuals interested in history and society are not only found in academic circles connected to the university. Social history and public memory is politicised, even in the local village context. Often it was easier to discuss the broad trends than to discuss local history in a village where the actors in the room were partly involved in that history.
The practice of reading texts with informants was less systematically applied. In most cases I simply presented them with some fragments of the material in order to see what was intelligible and to whom. The most interesting cases were the instances in which informants interpreted documents from their own family, as these documents held a social meaning or some degree of legal power for them personally. Unfortunately, the political nature of such documents (locally) made this a rare event. Many informants told me that they would be happy to show me their documents, provided their families gave permission. Usually this ended without result. I read a wide range of texts with a number of informants, and covered broad geographical and historical periods; this resulted in a useful explorative approach, but one that could not be systematized. What held the endeavour together, analytically, was the focus on waqf as a general legal and social institution and the focus on specific cases of waqf as a collection of the most common responses to and comments on this textual material.
Most of my informants were, by far, male. As a male researcher I had limited access to womenâs arenas and most public positions are held and represented by males. However, women are often seen as independent legal actors who are able to set up waqfs, as can be seen in several cases mentioned in this book. The special position of women, which varies greatly by social setting, could not be made into a main topic in this study.
5 Archival Material
The ministry of awqÄf was only one of several public archives in which to search for sources related to waqf, however, it is the most important institutional actor in the field of waqf and was therefore given the most attention. It turned out that there were few, if any, waqf documents available from them. In general, in archives in Yemen, only parts of the content have been catalogued and in several of the public archives and collections, the catalogues provide little more than the title. Between the various archives there is a great difference in the level of professionalism of those managing the facilities. I received help from Yemeni historians who clarified what I could obtain from which archives.27
The issue of âqÄt moneyâ or money to facilitate the acquisition of archives arose at several places. Sometimes, a small sum is mandatory if the service requested involves the time and effort of the archivist or official, though some officials increased their price when dealing with foreigners. There are many good reasons for not engaging in this type of interaction and it must be pointed out that maintaining a strict position with regard to these questions contributed to my lack of success in some of the archives/offices. Various Yemenis also seek to obtain waqf documents or entries from the registers (miswaddÄt), in order to âeraseâ issues from the past. Thus my quest for waqf documents was somehow parallel to theirs, though for a different purpose. Originally, these documents were public information and theoretically they still are, but today they exist in an opaque space between private and public. Perhaps it is wise and indeed correct for the archivists and their families to keep these documents beyond the public domain for the time being. The presence of doubt in terms of the degree of âpublicnessâ is itself an argument for anonymization. Those documents obtained with the approval of the minister of awqÄf are not anonymized in this study, since they were officially given to me by the ministry, yet even here I exercised caution.
Textual material from courts is quite useful as legal-historical sources. Court cases between private or state actors and the ministry of awqÄf not only contain the text of the judgment itself, but often also copies of related documents, including copies of original waqf documents. Visiting courts was possible, but not very rewarding, as Yemenis did not welcome foreigners who wanted to observe cases over time and record what takes place. The work done by Anna Würth,28 who sat in court and observed what was taking place, seems impractical in todayâs political climate. Also, court cases, especially those involving large and valuable areas of land, as is often the case in waqf disputes, tend to go on for years. Ultimately I was given access to, and copies of, six full court cases with all related documents from the Sanaa and Jawf Court of Appeal (Maḥkamat al-istiʾnÄf á¹¢anÊ¿Äʾ wa-l-Jawf) dealing with conflicts between the ministry of awqÄf and private or public actors. This material is very rich and consists of several hundred pages, but several of the actors involved in the cases did not want to share their views and did not want the cases to receive any attention, and in the end I decided not to follow up on that further.
Several times I visited a young âprivateâ neighbourhood judge (muḥakkam), who came from a family of traditional sayyids in one of the districts in the far northwest of Yemen. He mainly dealt with cases in which the degree of the dispute was low, such as marriage contracts, sales, leases, and simple inheritance divisions. I visited him and sat in his reception room several afternoons. My relationship to him is representative of my relations with many informants; after a certain period there comes a phase in which it is impractical for me to remain; the relationship cannot be developed further and stagnates. The role of a guest is highly respected and well defined, and visiting someoneâs work place regularly necessitates a specific and good reason for being there. Only a handful of such relationships could be maintained over a long time.
Comparatively few contemporary or present-day legal cases involve waqf, and if they do, there is a tendency to keep them as private as possible since theoretically the state has rights in such waqfs. An example to illustrate this was a case I saw (but did not copy) between a famous sayyid family and the ministry of awqÄf; it concerned a large tract of land that is now owned by one of the major embassies in Sanaa. The sayyid family had sold the land to the embassy, claiming that they could do so since it was a family waqf, while the ministry claimed that the land was, in part, a public waqf and that they should receive compensation. The case had been suspended for several years. The sayyid family preferred that the case be forgotten. Thus the historical material I obtained is not only fragmented and heterogeneous, but large parts of it are also not entirely public according to some of the actors or informants involved. As a rule I have used caution with this material; much of the material is simply referred to without the names of persons and places and it has not been re-printed in its entirety.
I should note that there were just as many informants with the opposite viewpoint: they took a more ideological stand and claimed that âinformation relating to waqf is public,â and âshould certainly not be hidden from the public sphere,â especially not from researchers with the necessary permissions. In practice the whole question of who owns what is rather opaque and not entirely public, especially in cities and urban areas where a great deal of land has changed hands during recent years. The challenges involved with gaining access to information in the original waqf registers (miswaddÄt) is an excellent way to study how ownership in an opaque political setting falls between the categories of public and private information.
The issue of waqf documents and registers, and especially those located in Sanaa appeared to be and never ceased to be, a matter of mystery. As I mention in chapter 3, since the 1930s in particular, the state has increasingly registered some types of waqfs by force. Some informants in Zabid pointed out that during the period when Ḥusayn b. Aḥmad al-SayÄghÄ« was minister of awqÄf in the 1960s the original registers were confiscated, and other cities and villages were left with copies only. If this is really what happened, then the archive in Sanaa must be very rich indeed. The first post-revolution decree organizing the ministry of awqÄf and its responsibilities (Republican decree no. 26 of 1968, article 10) states:
All old waqf documents (wathÄʾiq al-waqf al-qadÄ«ma) are to be registered (tuḥaṣṣar) and taken (tuá¸baá¹) from every province (qaá¸Äʾ) and district (nÄḥīya) and a copy is to be made, separately, whereupon the originals that require special care are to be kept at the archives of the ministry of awqÄf in the special storage that is made for this purpose in the dome (qubba) in the middle of the courtyard of the Great Mosque,29 and a caretaker is to be appointed to receive and catalogue these documents.30
Which documents were actually transferred, or were originally present from before is not known. There are rumours of a major armed robbery of the archive of the Great Mosque during the 1990s, but no one would provide any details about this. The minister of awqÄf, al-QÄá¸Ä« ḤamÅ«d al-HitÄr,31 mentioned the episode and the lack of information about it as an example of the delicacy of the issue of these waqf registers and miswaddÄt. He further ensured that most of the miswaddÄt were mysteriously replaced by the thieves shortly after the break-in. The same mystery surrounds the project of scanning these important documents, a process that is supposed to be taking place. For historical purposes, and for those wishing to secure the awqÄf in Sanaa and Yemen, such a project is naturally extremely important. Yet, there are many interests working against such a program. Previous waqf administrators and present-day private and public landowners have acquired waqf land at less than the market prices or simply by seizure. The modern present-day registers are partly electronic and are the result of several previous âreformsâ of re-registration, as I explain in chapter 3. The common story is that for each such re-registration, less land and fewer assets were registered as waqf. One person who worked in the latest ongoing registration project (al-ḥaá¹£r) told me quite clearly that âit is prohibited to see the old registers.â In theory no one has the power to prohibit this; yet in practice the discrepancy between information in the old registers and the new ones is potentially controversial. A full-fledged legal document written and witnessed by known figures could still win in a court case today, that is, if the court is not corrupt. Many informants pointed this out. The documents are still valid, and even if they are not valid today (in practice), they could be valid again, under a new regime in the future.
One informant explained that he had gone to the ministry to âliberateâ (taḥrÄ«r) two pieces of his land. TaḥrÄ«r is a concept in which waqf land is âsoldâ by the ministry to the tenant, usually for half the free market value of the land.32 The ministry takes the money and in theory buys an asset and creates another waqf somewhere else, thus making an istibdÄl, or waqf asset exchange.33 The reason for doing this, he said, was to ensure his familyâs good name: while he himself gladly paid the yearly rent to the waqf and he respected the waqf, he was not sure his son would continue to do this after he inherits34 the tenancy of the land. If his son failed to respect the waqf and pay the rent, this would bring shame and Godâs wrath on the family. Therefore, being rid of the waqf would mean getting rid of a heavy responsibility. He claimed (and this is why I mention the episode here), that many were not as pious as he was in these matters and that many âobtainedâ the original documents to ensure that the waqf was forgotten and that no legal memory existed.35 This is especially true of waqfs that have some sort of public character or component. Note that the waqf of the so-called waá¹£ÄyÄ type (treated in chapter 3, 5, and 7) is of a more private character than the âabsoluteâ mosque waqfs and thus privatizing them is not very controversial, even in the fiqh. And if the waqfs have been non-operative for several decades and were not registered in the latest re-registration reforms, then the only âmemoryâ might exist in a local register made by a diligent waqf inspector in the past. An in-depth study of waqf assets in a particular village or area would be useful to have and having access to registers from different periods would be important data for a historical study. Yet in the context of the present study of this book, this was not possible.
â¦
In this chapter I elaborate on the background for the present study. There were clear limitations in the fieldwork, as I have pointed out. These limitations were faced in constructive ways, but as a result of the challenges, the focus of the study shifted into more legally-oriented issues centring on certain topics where the validity and legitimacy of waqf is at stake.
The research questions focus on what âvalidityâ means in the various fields of knowledge; what is validity in waqf law or in fiqh and what is it in a local village? How are these connected through codified law and decrees, and in court cases and administrative documents? How does local village life affect fiqh and vice versa? How is the validity of the sharÄ«Ê¿a constructed or portrayed in the various fields of waqf knowledge?
In order to look at constructions of validity I have chosen the approach of looking not at the ideal type of waqf, but rather at forms of waqf that exist around the edges of the definition of the ideal waqf. On these edges or borders dynamic constructions of validity are more visible than in the centre of the ideal type of waqf. Examples include waqfs used to circumvent inheritance rules, waqfs that combine private and public beneficiaries as strategies for various purposes, and the strong rights of the tenant ascribed by custom, and the issues of the inheritance of tenancy. I analyse all of these topics in detail in the coming chapters. Chapter 2 also provides additional reflection on how knowledge and validity (in waqf) must be seen as consisting of a more or less shared and agreed upon corpus of ideas, as consisting of mediums and modes of communications and the transmission of knowledge, and finally also as consisting of the social setting and arena where it is used and played out.
6 The Structure of the Book
In chapter 1 I present the background for the research and elaborate on the different layers of research questions. In chapter 2 I discuss and clarify central terms related to the academic study of âIslamic lawâ and waqf and address some of the challenges of such an interdisciplinary study. Finally, I present a model of four different fields in which knowledge about waqf is used.
Chapter 3 is a general introduction to waqf in Yemen and in it I briefly review previous ethnographic, historical, and jurisprudential literature on waqf in Yemen. I present the history of the centralized public waqf administration, mainly as a synthesis of already published material. In chapter 4 I situate the texts and sources that I use in the following chapters in a historical and political context with a focus on Zaydī fiqh and codified law.
In chapters 5 to 7 I address specific topics situated on the border of what is a valid waqf. These chapters share a common methodological approach, in that each focuses on a specific topic relevant in the legal history of waqf in Yemen rather than dealing with an ideal waqf. They focus on all four spheres of knowledge (fiqh, codification, legal cases, and daily knowledge of waqf) in order to show that in crucial aspects the practices on the ground affect the upper level doctrines as well as the other way around. The topics that each constitute a separate chapter are issues like circumvention of the inheritance rules, combined public and private waqf, and the problem of the strong tenant. Some chapters are more fiqh-oriented and some are more practice-oriented. Still, all focus on the ties and interconnections between the various fields of knowledge. In chapter 8, I take up a meta-perspective on the topic of the sources of validity in waqf law and draw some conclusions.
In many areas in Yemen, the population lives on mountaintops and ridges where there is no groundwater. Here, large water tanks (birka, mÄjil) are used to collect and store rainwater for domestic use and for animals. The technology is centuries old and a well-integrated part of society.
In the context of his statement, where Muslims are the majorityâhe was essentially saying that the waqfs are for the benefit of people in general (as he did not think in terms of religious minorities).
Eirik Hovden, âRainwater Harvesting Cisterns and Local Water Management: A Qualitative Geographical / Socio-Anthropological Case Study and Ethnographic Description from the Districts of Hajja, Mabyan and Shirisâ (MA thesis, University of Bergen, online: bora.uib.no/handle/1956/2001, 2006).
An example of such an exception is the work of Brinkley Messick, who I refer to in several places in this book.
There are complicated jurisprudential rules related to the prohibition of inheriting or selling a waqf; to a great extent these can be circumvented, as I demonstrate in chapters 6 and 7.
This is a well-known ḥadīth that appears in books of fiqh; it was also quoted by several informants.
Again, with some differences among the schools of law, as I elaborate on later.
The main chapters in this book provide an in-depth study of such an incorporation of âinterestâ and âcustomâ into the corpus of legal rules.
There is a general argument that refers to Schacht, who states that âIslamic law does not recognize the juristic persons.â J. Schacht, An Introduction to Islamic Law (Oxford: Oxford University Press, 1964), 125. This is re-stated in the EI2 article on waqf. R. Peters, D. S. Powers, Aharon Layish, Ann K. S. Lambton, Randi Deguilhem, R. D. McChesney, M. B. Hooker, and J. O. Hunwick, âWaḳf,â in Encyclopedia of Islam, second edition, ed. P. J. Bearman, Th. Biancuis, C. E. Bosworth, E. van Donzel, and W. P. Heinrichs (Leiden: Brill Online, 1960â2004), 11:59â99. Doris Behrens-Abouseif argues that this is a matter of definition and that there are arguments in favour of defining waqf as a legal personality. Doris Behrens-Abouseif, âThe Waqf: A Legal Personality?â in Islamische Stiftungen zwischen juristischer Norm on sozialer Praxis, ed. Astrid Meier, Johannes Pahlitzsch, and Lucian Reinfandt (Berlin: Akademie-Verlag, 2009). The Yemeni waqf decree no. 63 of 1977, article 4, explicitly states that the ministry of awqÄf is to be considered a legal personality (shakhá¹£iyya iÊ¿tibÄriyya). Ê¿Abd al-MÄlik Manṣūr, al-AwqÄf wa-l-irshÄd fÄ« mawkib al-thawra (Sanaa: WizÄrat al-AwqÄf wa-l-IrshÄd, 1987), 292 [henceforth referred to as al-Mawkib].
For an overview, see Franz Kogelmann, âDie Entwiklung des islamischen Stiftungswesens im postkolonialen Staat. Prozesse in Ãgypten, Algerien und Marokko,â in Islamische Stiftungen zwischen juristischer Norm on sozialer Praxis, ed. Astrid Meier, Johannes Pahlitzsch, and Lucian Reinfandt (Berlin: Akademie-Verlag, 2009).
See, for instance, chapter 2: âWaqf and Islamic Finance: Two Resources for Charity,â in The Charitable Crescent: Politics of Aid in the Muslim World, ed. Jonathan Benthall and Jerome Bellion-Jourdan (London: I.B. Tauris, 2009).
Fiqh means âlegal theory,â the academic science of Islamic law. I elaborate on this in the next chapter.
The contrast to Egypt and al-Azhar is striking.
For the early spread of Zaydism, see David Thomas Gochenour, âThe Penetration of Zaydi Islam into Early Medieval Yemenâ (PhD thesis, Harvard University, 1984).
This refers to the well-developed doctrines of polity in Zaydism. The doctrine of khurÅ«j is particularly important, as it states that it is a duty to overthrow a ruler that is âunjust.â Throughout Yemeni history this doctrine has often been used to legitimize imam pretenders aiming to establish a polity. However, once in power, they must fight off other pretenders both in scholarly matters and militarily.
At my request the ministry of awqÄf provided fifty documents, not all of which were waqf documents. I have also collected and read a similar number of published and unpublished waqf documents, although several of them were shown to me on the condition of anonymity.
That is, knowledge of law, the law itself, and the local, daily knowledge of waqf.
I use the term âvalidityâ because it is a single term that can be used in all four âfieldsâ of knowledge, and by using one term, commonalities and interconnections between the four fields are more easily seen. I present the four fields below.
This term, taken from Robert Redfield, is often now seen as an oversimplified dichotomy. Robert Redfield, âThe Social Organisation of Tradition,â Far Eastern Quarterly 15, no. 1 (1955): 13â21.
I elaborate on this in the following chapter. Fredrik Barth, âAn Anthropology of Knowledge,â Current Anthropology 43, no. 1 (2002): 1â18.
A fuller and more elaborate verision of this chapter can be found in Eirik Hovden, âFlowers in Fiqh and Constructions of Validity: Practices and Norms in Yemeni Foundations of Forever Flowing Charityâ (PhD thesis, University of Bergen, 2012).
Gerorge E. Marcus, âEthnography in/of the World System: The Emergence of Multi-Sited Ethnography,â Annual Review of Anthropology 24 (1995): 95â117. Thus the âplotâ (p. 109) followed in this study is the institution of waqf. For a deeper discussion of multi-sited fieldwork, see also Mark-Anthony Falzon, Multi-Sited Ethnography: Theory, Praxis and Locality in Contemporary Research (Farnham, UK: Ashgate, 2009).
QÄt is a stimulant, which is consumed daily after lunch, often in groups. For a detailed description of the public nature of these afternoon qÄt chews, see Lisa Wedeen, Peripheral Visions: Publics, Power and Performance in Yemen (Chicago and London: University of Chicago Press, 2008).
A sayyid (pl. sÄda) is a person who claims descent from the Prophet. In the ZaydÄ« areas of Yemen they form a distinct part of society, have a special religious status, and seldom marry âdownâ into the tribes.
A qÄá¸Ä« (pl. quá¸Äh) is a member of an educated family that specializes in Islamic law, but is not a sayyid. The sÄda and quá¸Äh had and still have important administrative positions in the state.
The original thesis included two parts: first, how to read with informants and study waqf fiqh with a teacher, and the second concerns dealing with the ministry of awqÄf. Hovden, âFlowers in Fiqh,â 30â41.
Among the most useful archives in terms of service was the DÄr al-Makhá¹Å«á¹Ät, which belongs to the ministry of culture. I am very grateful for the assistance of the undersecretary, SÄm b. YaḥyÄ al-Aḥmar, in swiftly providing a permit.
Anna Würth, Ash-sharÄ«Ê¿a fÄ« BÄb al-Yaman; Recht, Richter und Rechtspraxis an der familienrechtlichen Kammer des Gerischts Süd-Sanaa (Republik Jemen) 1983â1995 (Berlin: Dunker & Humblot, 2000).
These words appear in a bolder font in the original text.
Translated from Manṣūr, al-Mawkib, 280.
The ethnographic present refers to 2010. In March 2011 ḤamÅ«d al-HitÄr was dismissed or resigned and his predecessor, ḤamÅ«d Ê¿UbÄd took over.
This was presented by several informants as âcustomâ (Ê¿urf) and one informant called it a fatwÄ. It is also mentioned in Serjeant, á¹¢anÊ¿Äʾ, 152, thus it has been practiced at least since the mid 1980s. Ḥusayn al-Ê¿AmrÄ« and R. B. Serjeant, âAdministrative Organisation,â in á¹¢anÊ¿Äʾ: An Arabian Islamic City, ed. R. B. Serjeant and R. Lewcock (London: World of Islam Festival Trust, 1983), 152.
In Zaydī fiqh this is allowed. Indeed it can even be compulsory if it is in the interest of the waqf.
In the ideal waqf fiqh, tenancy cannot be inherited, yet legally, it can be in several forms. See chapter 6.
Public knowledge of the status of waqf ownership is called shuhra and this is, in theory, equal to written waqf documents in terms of legal validity.