Our descendants are the children of our sons, as for our daughters,
their children are the descendants of strange men
(BanÅ«nÄ banÅ« abnÄʾinÄ wa-banÄtunÄ
banÅ«hunna abnÄʾ al-rijÄl al-abÄÊ¿id)
âµ
This Yemeni proverb found in the chapter of waqf in the fiqh work al-Baḥr al-zakhkhÄr1 (ca. 1400 CE) was quoted by some well-educated informants during discussions as a way to explain the defining features of the patriarchal family system and various options of the intergenerational transfer of wealth in this system, as I elaborate below.
1 Structure and Main Argument of the Chapter
This chapter is structured along the lines of the historical trajectory of the codification of a specific cluster of rules in ZaydÄ« law that regulate the balance between the waqf, the testament (waṣīya), and the inheritance rules (al-farÄʾiá¸, irth, wirÄtha). These legal concepts offer different strategies of long-term land ownership control and the allocation of rights of family members to agricultural surplus over time. The chapter focuses on the knowledge field of codification, the second field of the four fields of knowledge defined in chapter 2. Only to a limited extent does it focus on the field of fiqh and on individual cases of waqf and legal disputes. These âlevelsâ or âfields of knowledgeâ are ideal types, as treated in chapter 2. Although the structural focus of the chapter is on the ideal type of codification, it becomes clear from the analysis that codification cannot be properly understood without the level of fiqh âabove itâ and without the level of individual cases and legal practice âbelowâ it.
Compared to other legal topics in waqf, the matter in question is particularly well-suited to trace a trajectory through the history of ZaydÄ« codification and positive law. No other topic or cluster of topics in waqf law has been given so much attention in ZaydÄ« codification (imamic fatwÄs and decrees)2 than the role of waqf in intergenerational transfer of wealth and its limits. It is a legal topic that reappears in fatwÄ collections and in decrees made by the ZaydÄ« imams to their judges, again and again, throughout classical and QÄsimÄ« ZaydÄ« history. The specific type of waqf used to circumvent the inheritance rules is, when seen in a long historical perspective, situated on the very edge of validity, legality, and authority. By tracing the decrees and fatwÄs we see that roughly half of the imams and scholars favour of the legality of a form of family waqf that excludes some of the (otherwise potential) heirs and the other half oppose this form of waqf. The types of references and arguments used to legitimize these positions follow certain patterns and are often repeated. By tracing the trajectory of the codified rule, we can see how the field of codification (âlawâ) is affected by the vast tradition of academic, ZaydÄ« and indeed, Islamic fiqh (legal theory); at the same time it is also oriented towards more local and contemporary politics of case law, which is constituted by the sum of individual court verdicts and rules wanted by landowning families.
1.1 Intergenerational Transfer of Wealth in Islamic Legal Theory
Inheritance as regulated by inheritance laws is only one way of transferring wealth from one generation to the next.3 The inheritance laws or rules are complex, but the crux is that certain persons inherit certain shares of the property or estate of the diseased. Most importantly, a daughter inherits half the share of a son. Close relatives like parents and spouses also inherit.4 In many ways, the inheritance rules are not a very practical model for a patrilineal, tribal, agricultural society to use for the intergenerational transfer of wealth. Giving away parts of the landholdings of the family, or the clan, to âstrangersâ through inheritance to daughters who marry outside the family may result in an unwanted loss of land.
Theoretically, if a man from family (A) is left with only daughters, and if these daughters marry into another family (i.e., exogamously), the land that they inherit will no longer be under the control of family (A) and will enter into the hands of the other family (B). Since the daughter will later leave most of her inherited land to her children (awlÄd al-banÄt), who carry the family name of their father (B), the family (B) will gain control over these lands in the future, and family (A) will lose important sources of income and power. This is an institutional problem in a patrilineal, tribal society if the Islamic inheritance rules are strictly followed. One way of countering this effect is to only marry within the extended family (endogamously). This is a common solution, but among landowning elites, inter-clan marriages are important ways of forging alliances. Another solution is to make sure that over time the two families marry an equal number of women into the family of the other. But the most desirable solution is to be able to prevent the transfer of wealth between the exogamously married woman and her children. The âexclusionaryâ form of family waqf described below is a great tool for this.
Generations come and go and access to land mainly follows the concept of private ownership sanctioned by a local consensus based on respect for ownership documents. Land is not only held by individuals, it is often held in common by an extended family or clan, which are important political entities, in that they provide individuals with food and housing.5 In such cases, with the notion of communal ownership, even if the land is technically, legally owned by individuals only, there is a significant pressure on individuals from the rest of the extended family to not marry their daughters to outsiders, in order to avoid the subsequent âlossâ through inheritance claimed by the children of these women (awlÄd al-banÄt). Creating a family waqf exclusively in favour of the male descent line (awlÄd al-á¹£ulb) and excluding the awlÄd al-banÄt from the yearly income of the waqf is legally possible by setting up a family waqf for the descendants of the patrilineal line only. In such a waqf, the right to the revenue of the land is given to the living members of the founderâs family, while the agricultural fields remain under the status of waqf, ânot to be bought, not to be sold, and not to be given away as inheritance.â The important point here is that such a waqf can be made, arguably, with the condition that it excludes (ikhrÄj) the children of women who married into another family (awlÄd al-banÄt), in favour of those children (male and female) who remain in the patrilineal line, the so-called awlÄd al-á¹£ulb. The latter carry the name of the patrilineal line (nasab) of the extended family.6
This âexclusionâ from the family waqf, as we call it hereafter, has been a much used instrument over the centuries in the Islamicate world and also in ZaydÄ« Yemen, where it has been respected by many imams, jurists, local judges, and notaries. At the same time, this norm and practice have been strongly criticized by other imams and scholars, who claim that it is invalid because it is an indirect circumvention of the Islamic inheritance laws. The awlÄd al-banÄt are not heirs in the first generation, but from the next generation, they ultimately lose, if the exclusionary waqf is chosen instead of the inheritance rules as a model of transferring land from one generation to the next.
In theory, inheritance takes place only after someoneâs death and a waqf is made during the founderâs lifetime.7 As isolated legal concepts in their ideal form they are completely separate. However, in practice, they overlap. Other legal concepts that can be used to transfer wealth from one generation to the next, such as a gift or a testament introduce some complicating factors in this picture and we must make some clarifications:
1.2 The Relationship Between Hiba , Waqf , and Waṣīya
The relationship between waqf and waṣīya in schematic form.
A disposition can be made during oneâs lifetime (inter vivos) for all of oneâs property, such as, for example, a gift (hiba). A gift is not restricted by inheritance rules, nor by the restriction on testaments (waṣīya).8 A testament can only be made for up to one-third of oneâs property. Theoretically, the individual is free to do what he wants with his property during his life, at least before any sickness that leads to his death (maraḠal-mawt).9 In practice, however, there is a strong expectation that the individual should hand over land to members of his family, preferably his male children, since land is the very basis of existence, status, identity, honour, and power. Giving away all oneâs property to a charitable purpose or to a stranger outside oneâs family can be legally valid according to fiqh,10 but morally wrong, highly unusual, and even âun-Islamicâ according to most informants.11
A student of law reading an introductory fiqh textbook about Islamic law studies four distinct, separate concepts. The model above has four separate categories in legal theory (fiqh), but in legal practice and in terms of local, non-fiqh knowledge, all those fields tend to merge into one; the difference of transactions made before and after death collapses when seen from the long-term intergenerational perspective. The difference between a one-time disposition and a perpetually lasting disposition also collapses, since owning land or having the full right to land is something that largely produces the same effect. The collapse of the borders between the four different legal models causes quite some confusion and inconsistency of terms, both in fiqh and in codification. A waqf is called a waṣīya and vice versa, and the restriction from the waṣīya to one-third of oneâs property becomes imposed onto the waqf. This more practical side of the law is then re-integrated back into the more academic fiqh in the footnotes of fiqh books, as we see below.
Some problems of the âcollapseâ between the four categories and the resulting confusion also specifically occur in ZaydÄ« waqf because of the combination of doctrinal stands that differ from other law schools. Other law schools have different constellations of waqf doctrines that lead to other institutionalized dilemmas and inconsistencies than those found in Zaydism. In ShÄfiÊ¿Ä« law, for instance, a waqf does not necessarily have to be pious. As waqf must be pious according to ZaydÄ« doctrine and therefore exploiting the concept of waqf to circumvent the inheritance rules produces an even more pressing inconsistency in âthe sharÄ«Ê¿a.â In SunnÄ« law, a waṣīya cannot be given in favour of an heir, and this strengthens the conceptual separation between the two concepts of waqf and waṣīya. However, for ShÄ«Ê¿Ä«s and ZaydÄ«s, a waṣīya can indeed be made in favour of an heir. This leads to âpicking the bestâ from both concepts, such as in creating a waqf that is ânot completely pious,â but which is âstill legal within the third,â and âthereforeâ can exclude the awlÄd al-banÄt. I elaborate on this in this chapter by referring to the way ZaydÄ« scholars see this dilemma and try to solve it.
The topic of circumventing the inheritance rules by using waqf is arguably not one of direct relevance to public waqf, but it is the single most importantâand one of the most controversial debatesâin the field of ZaydÄ« waqf codification. The topic is thus almost unavoidable when focusing on borders of validity around the concept of waqf. As I show in chapter 7, the border between private waqfs and public waqfs is also often deliberately blurred, making the definition of family waqfs even more pressing. By analysing the legal debates behind, and the history and trajectory of codification, several important aspects of public forms of waqf also appear. As this chapter shows, the debate clarifies for us, in addition to the legal question itself, other important aspects such as the creative use of waqf in economic strategies, the wider history of ZaydÄ« codification, and the very role of ZaydÄ« ownership law in the society.
2 The Arrival of al-HÄdÄ« and His Waqf-Waṣīya Model
Al-HÄdÄ« brought ZaydÄ« waqf fiqh and law to Yemen in 897; his family waqf model (hereafter called the HÄdawÄ« waqf model) was a rather special type of family waqf that seems to have survived until today. This waqf is a family waqf that uses a will or testament, a so-called waṣīya. Today, this waqf is, to a large extent, still called a waṣīya instead of its more âcorrectâ legal term, waqf.
The HÄdawÄ« waqf model is based on the premise that one-third of oneâs property can be given to whomever the founder chooses, including heirs, or some of the heirs. According to the HÄdawÄ« waqf model, it is permissable to exclude the awlÄd al-banÄt from this âfreeâ third. The remaining two-thirds of the property can also be made into a waqf excluding the awlÄd al-banÄt, but only if all the heirs agree. If they do not, the two-thirds can still become a valid family waqf, but the division among the beneficiaries of the remaining two-thirds of the waqf must follow the inheritance shares (waqf Ê¿alÄ l-farÄʾiá¸). In other words, the founder is completely free with regard to the first third of his property,12 and although he is free to make all of his property waqf for his heirs, for the remaining two-thirds he is restricted in terms of how it must be divided and all the potential heirs must be included.
By calling the family waqf a waṣīya, one can circumvent the condition of pious intention (qurba) and thereby evade the inheritance rules more easily. Of course this waqf must be restricted to one-third since it is given in the framework of a waṣīya and is executed by the executor or guardian (waṣīy). In the ZaydÄ« and ShÄ«Ê¿Ä« waṣīya, the testator may give one-third of his property to his heirs and arguably also to a specific group of his heirs. This is why the validity of the SunnÄ« ḥadÄ«th âNo testamentation to an heirâ (lÄ waṣīya li-wÄrith) is so controversial in debates about Yemeni family waqfs. If the ḥadÄ«th is to be held strong or valid, the HÄdawÄ« waqf model would be invalid. In a waṣīya (in contrast to a waqf), there is no need for good intention or âpietyâ (qurba)13 since it is not a charitable disposition in the first place. Circumvention of the inheritance rules by using a waṣīya is not as problematic as it would be in a waqf. The fact that this combined waqf-waṣīya model of al-HÄdÄ« is not entirely pious, which is fundamental characteristic of a waqf, can be explained by those defending it, who say that this combined model is simply not an âabsolute waqfâ (in contrast to âabsoluteâ waqfsâal-waqf al-muá¹laq) and therefore this model is not subject to the strict rules of absolute waqfs in terms of piety. This implies a breach in the principle of piety and an admission that there are two types of waqf; a âreal,â âpureâ or âabsoluteâ waqf is one whose purpose is undoubtedly pious, and which can be made during oneâs lifetime for all of oneâs property, and also in favour of heirs. But in this case, it should not exclude any heirs. Thus there is a sort of difference in âholinessâ between the HÄdawÄ« family waqf and the âpureâ charitable waqf, although the distinction between them is often blurred and even denied. Until today, there is a tendency in Yemen to look at family waqfs or privately administrated waqfs as something close to a private trust, in which both piety and perpetuity are ânegotiable.â In contrast, publicly administered charitable waqfs, for example, for mosques, which are seen as âholyâ and âpure,â are more liable to the scrutiny of the public.14
Al-HÄdÄ« left several fiqh works, the most well-known among them are the Muntakhab15 and the AḥkÄm. I do not explain al-HÄdÄ«âs waqf model in more detail here, rather I present it through the eyes of later authoritative observers and commenters, beginning with Imam al-Manṣūr Ê¿AbdallÄh b. Ḥamza (561â614/1166â1217),16 who looks back at what happened in al-HÄdÄ«âs days.
3 The FatwÄs of Imam al-Manṣūr Ê¿AbdallÄh b. Ḥamza (d. 614/1217)
Imam al-Manṣūr Ê¿AbdallÄh b. Ḥamza was totally opposed to al-HÄdÄ«âs waqf model. In his view, al-HÄdÄ«âs model produced confusion between waqf and waṣīya. For al-Manṣūr, a waqf is totally different from a waṣīya, it is something pious that should not contradict or undermine the rules of inheritance. In his view, excluding the awlÄd al-banÄt (children of exogamously married women) could not be valid in a waqf, as this could invalidate their right to inheritance. Al-Manṣūrâs account is legal, but also âethnographic.â He states that most contemporary waqfs were made by use of a waṣīya:
[A] question was asked about a woman who gave by means of testamentation (awá¹£at) a â¦
Answer: It is not to be sold because it [this transaction] takes the legal effect of a waqf and most waqfs in the country are made by the wording of the waṣīya.17
Al-Manṣūrâs fatwÄ collection includes a critical thesis about al-HÄdÄ«âs waqf.18 He starts by agreeing to the restriction to one-third19 as given in the ḥadÄ«th âA third, and a third is much.â20 This ḥadÄ«th, he states, is relevant in some other forms of transactions, but it is not directly related to waqf. Then, he proceeds to treat the topic of the legitimacy of the institution of waqf in general. He concludes that the only basis for waqf is piety, or the intention to do good (qurba). He treats several specific sub-questions in which he disagrees with al-HÄdÄ«âs waqf law. The first point is the issue of âwaqf for some of the heirs excluding othersâ:
He [al-HÄdÄ«] said: If he made all of his property waqf for some of the heirs without others, such as in favour of the males without the females among his children and grandchildren; if those who were excluded agree to the waqf, then the waqf is valid as the founder wishes; if they do not agree, the third is still waqf for the males without the females, but the rest is to be waqf for all of them, males and females, according to the shares [as outlined] by God the exalted.21
This was al-HÄdÄ«âs waqf model. However, al-Manṣūr disagrees and argues:
The comment on that [is]: What he presented about a waqf that has no good intention has no root (aá¹£l) in the sharÄ«Ê¿a. And what has no root cannot be validated. It is clear that al-HÄdÄ« connected the status of the third to piety22 in an analogy from the waṣīya of a third of oneâs property (qiyÄsan Ê¿alÄ l-waṣīya), and that the transfer of this third therefore can be done with pietyâ¦. However, we think that such a transaction has no piety in it because the females are the weaker partâ¦. And if such a transaction is built upon deficiency (fasÄd), then it becomes deficient in its totality, unlike the sale (al-bayÊ¿) and purchase, and the gift (al-hiba) ⦠There is no fundamental validity [in waqf] except good intention â¦23
The use of the âroyal weâ recurs in the way the imam calls himself âwe.â The treatise is long, sometimes repetitive, and some of the cases and examples overlap. Al-Manṣūr states that the âfree thirdâ that his predecessors have agreed upon is not entirely free, in that while one can do whatever one wants with it, including non-pious transactions; one cannot contradict the sharÄ«Ê¿a with it. It is perfectly fine to give a waqf to non-heirs24 (ajÄnib), but if it is given to heirs in order to circumvent the inheritance rule, then this is not valid, because the first condition of waqf is qurba. He mentions that females âare the weaker partâ in such cases and that it is wrong to leave them without property. Sometimes the terms âfemalesâ or âwomenâ are used interchangeably with awlÄd al-banÄt. As we see later, the distinction is not crystal clear, and certainly not in the rhetoric of al-Manṣūr; in the HÄdawÄ« waqf they are all presented as the losing part. Thus it is especially when contrasted to inheritance that the problem of the lack of piety arises:
As for what is mentioned in the books of al-QÄá¸Ä« l-Ḥasan b. Ê¿AlÄ« b. Muḥammad b. AbÄ« l-Najm as an answer to a question about someone who makes a waqf and disinherits his daughters and his brothers, this is invalid, as it is a mere jÄhilÄ« waqf. [Before Islam] they did not give inheritance to the girls or to their brothers from the same father, and the same [is true] for their younger brothers as well. They gave all the inheritance to the eldestâ¦. And they used to say: Our descendants consist of our sonsâthe descendants of the women are strangers to us (abnÄʾunÄ banÅ« abnÄʾinÄ wa banÅ« l-nisÄʾ abÄÊ¿id). Then came the Prophet and he took away their rules and replaced them with God the exaltedâs rules, and gave the women what God the exalted had ordered â¦25
Al-Manṣūr makes it appear as if the problem is one of womenâs rights to inheritance in general and the HÄdawÄ« waqf model is simply a way to revert to pre-Islamic laws of the intergenerational transfer of wealth. Al-Manṣūr continues:
⦠Then came al-HÄdÄ« to Yemen. There were tribes like HamdÄn and KhawlÄn and they used to not give inheritance to their women and [follow] what God the exalted had given them, and the judges followed these rules (wa-ḥakama bi-dhÄlika quá¸Ät al-bilÄd). This question was raised to al-HÄdÄ« and he abolished this and ordered that one-third could be given to the males (al-thulth li-l-dhukÅ«r) [as waqf] and the remaining two-thirds was to be divided according to God the exaltedâs [inheritance] rules, to both males and females. This practice continued in his [al-HÄdÄ«âs] life and after his death, and is stated as preferred (rÄjiḥ) in the Muntakhab.26
Al-Manṣūr comments:
It was said that the Judge Ê¿AlÄ« b. SulaymÄn al-KÅ«fÄ« was al-HÄdÄ«âs judge and that he judged according [to these rules] and said: The a priori assumption (al-aá¹£l) should be that any waqf is valid unless someone makes all his property waqf, then it is permissable for a judge to reduce the waqf to one-third. The remaining two-thirds, according to him, are to be waqf for the heirs, not property (waqfan, lÄ milkan), and according to al-Muʾayyad bi-LlÄh, these two-thirds that are waqf can be bought and sold.27
Here, al-Manṣūr elaborates on the âconfusionâ and lack of logic behind the combined waqf-waṣīya. The latest scholar to be quoted there, the Caspian Aḥmad b. al-Ḥusayn al-Muʾayyad bi-LlÄh (d. 411/1020), is perhaps the most revered non-Yemeni ZaydÄ« scholar in classical ZaydÄ« law and his views are often quoted. His view that this remaining two-thirds may be bought and sold, sounds, at first, somehow peculiar. This is perhaps a way for al-Manṣūr to strengthen his argument by making the opponentâs waqf model seem even less pious, since selling a waqf is widely know to be wrong.28 The remaining two-thirds could be bought and sold, according to al-Muʾayyad, because it is still private property, not waqf.29 The important point is al-Manṣūrâs comment to this: The HÄdawÄ« waqf model is so wrong that it is indeed âoutside religionâ (kharajat bi-dhÄlika min al-dÄ«n).30 Al-Manṣūr adds diplomatically that al-HÄdÄ« made this rule as a compromise, given the social context of the time (jaÊ¿ala la-hum al-thulth á¹£ulḥan) as al-HÄdÄ« probably saw that otherwise the tribes would not change their behaviour, so he made the free one-third into a sharÄ«Ê¿a-rule (fa-sharraÊ¿a la-hum al-thulth).31
Al-Manṣūr also presents his argument as a logical construct, stating that a more specific rule (farÊ¿) cannot be made without a clear fundament (qÄÊ¿ida). In several other statements in the same treatise he repeats this point, that the issue of qurba in waqf is not simply a matter of interpretation, in which every interpreter is right; there are the fundamental negative implications if the institution of waqf is not seen as totally dependant on absolute good purpose (qurba, qurba maḥá¸a). In the middle of several other questions related to the grey areas between waqf and waṣīya, he answers repetitively, and one can almost see him losing patience:
⦠I have already made clear to you that the waṣīya has its own chapter in the books as the gift has, and there is no connection between these and the chapter of waqf, except what they share in their essence. The waṣīya has no need for qurba, but this is not the case for the waqf. A waqf without qurba is not valid even for one part of a thousand. But this does not apply to the waṣīya, which has its own chapter and all its rules are well knownâ¦. What was claimed [by al-HÄdÄ« and his followers] is only an appearance of a rule (ṣūratan), but not real one and it is not constructed upon evidence and proofs (Ê¿adilla wa-Ê¿ilal) and the qiyÄs [al-HÄdÄ« made] from waṣīya [regarding the third] is not valid ⦠it is only an artificial construction (ṣūra mawá¸Å«Ê¿a) that must be corrected back to the truth so that we can have rules that are firmly established (thÄbit).32
As a conclusion, we can say that Imam al-Manṣūr Ê¿AbdallÄh b. Ḥamza was crystal clear in his views that waqf can only be based on charity and piety and whenever it is so, there is no need for the qiyÄs or âconnectionâ with the waṣīya. This does not mean that a waqf in favour of heirs or family is not charitable, rather, and more specifically, waqfs for some of the heirs may be valid in certain cases, but not as a rule in itself, nor as a rule that allows the exclusion of whole groups in order to circumvent inheritance rules. The awlÄd al-banÄt are not heirs in the first generation, but the principle of excluding them as a sub-group of heir-beneficiaries is a misuse of the institution of waqf, according to al-Manṣūr. The discussions by Ê¿AbdallÄh b. Ḥamza above can be said to take place in the knowledge field of fiqh (legal theory). We know less about the legal decrees (codification) he ordered and we have no individual legal cases from his time. There are, however, two short fatwÄs by him that state that he did validate the HÄdawÄ« waqf model for waqfs established âbefore this time,â or, if the daughters are given an âequitableâ (mÄ yaÊ¿dilu) compensation for being excluded. This view, which is presumably closer to codification, is far less strict than his theoretical rejection.33
4 Instiá¹£Är and NÅ«r al-abá¹£Är
One of the famous fiqh works from the period before the Sharḥ al-azhÄr is the Intiá¹£Är34 by the famous ZaydÄ« Imam al-Muʾayyad bi-LlÄh YaḥyÄ b. Ḥamza (d. 749 or 50/1348 or 49).35 The KitÄb al-Waqf is no longer extant, and thus it cannot be consulted. An abridgement of the Intiá¹£Är called NÅ«r al-abá¹£Är al-muntaziÊ¿ min kitÄb al-intiá¹£Är is available as a manuscript and has been consulted.36
⦠If a waqf is made for those who descend from the founder (Ê¿alÄ alladhÄ«na yantasibÅ«na ilayhi) the awlÄd al-banÄt are not included (lÄ yadkhulu awlÄd al-banÄt), because they do not belong to the founderâs descent line (li-annahum lÄ yantasibÅ«na ilayhi). Therefore some say: âOur descendants are the children of our sons, as for our daughters, their children are the descendants of stangers.â37
The NÅ«r al-abá¹£Är is very brief about this specific point. The rule translated here is only one of many that clarifies various legal wordings and definitions of beneficiaries. This rule confirms that the awlÄd al-banÄt can be excluded if the wording âman yantasibÅ«na ilayyaâ is used, thus invoking the concept of patrilineage, nasab. The controversy identified by al-Manṣūr seems to have been completely forgotten. As we see later, this neutral position is more or less the norm, and by inserting a certain wording in the initiation of the waqf (in the waqf document),38 the effect of excluding the awlÄd al-banÄt is fairly uncontroversial. However, this could probably only be done within the one-third, as in the HÄdawÄ« waqf model.
5 The Views of Ibn al-Murtaá¸Ä (d. 840/1437) and Ibn MiftÄḥ (d. 877/1472)
Ibn al-Murtaá¸Ä wrote the multivolume legal encyclopaedia called al-Baḥr al-zakhkhÄr [The overflowing ocean] and the KitÄb al-AzhÄr [The book of flowers].39 Shortly after, this work was commented upon in the typical abridgement and commentary style (sharḥ) by Ibn MiftÄḥ in a multivolume commentary called the Sharḥ al-azhÄr. This work has since been commented upon and extended throughout the centuries until today, and it represents the mainstream ZaydÄ« fiqh discourse. Other commentaries have âbranched offâ from the Sharḥ al-azhÄr and use the KitÄb al-AzhÄr as a structure, such as al-ShawkÄnÄ«âs critique of ZaydÄ« fiqh called al-Sayl al-jarrÄr, which is treated below.
Based on its slightly different structure, we assume that Ibn al-Murtaá¸Äâs al-Baḥr al-zakhkhÄr predates the KitÄb al-AzhÄr; almost all fiqh work after KitÄb al-AzhÄr follow its structure and division of chapters. Al-Baḥr al-zakhkhÄr is still very popular among ZaydÄ«s today as it strikes a good balance between being concise and it includes most of the recognized diverging views, also some among SunnÄ« authorities.
To start chronologically, in al-Baḥr al-zakhkhÄr Ibn al-Murtaá¸Ä does not specifically state that a family waqf exclusively for males, or excluding the awlÄd al-banÄt, is wrong. Rather, the debate concerns which words the founder (al-wÄqif) should use in establishing the waqf, or in the waqf document. There is a discussion over which terms include the awlÄd al-banÄt40 and which terms and phrases exclude them. Phrases like âfor my children and their childrenâs childrenâ (Ê¿alÄ awlÄdÄ« wa-awlÄd al-awlÄdÄ«) include female children (banÄt) and their children (awlÄd al-banÄt), while a simple addition to the previous terms such as âwhomever belongs to my descent lineâ (man yantasibÅ«na ilayya) excludes them. Ibn al-Murtaá¸Ä also quotes an anonymous âpoetâ with the familiar proverb: âour descendants consist of our sons and our daughters, but our daughterâs children are strangers to us.â41 The fact that he does not mention more than this points to the general acceptance of the rule by the jurists (fuqahÄʾ). Imam al-Manṣūr Ê¿AbdallÄh b. Ḥamza is not even quoted.
Further, Ibn al-Murtaá¸Ä allows for waqf in favour of heirs from all of the estate if it follows the division of the inheritance rules, and if not, then only one-third can become waqf. This is a restatement of the HÄdawÄ« model. As for the controversy over the remaining two-thirds, which become waqf42 even if some of the heirs disagree on the waqf, he also agrees with al-HÄdÄ«, but he quotes three scholars who state that the two-thirds should not take the effect of waqf, but should remain private property (milk). These three scholars are Imam al-Muʾayyad Aḥmad (d. 411/1020), Imam YaḥyÄ b. Ḥamza, and al-ShÄfiÊ¿Ä«.43
As for the KitÄb al-AzhÄr, we do not see any mention of the rule concerning exclusion. Thus it cannot have been seen as important, and the awlÄd al-banÄt could be excluded, but only in a waqf made of one-third of oneâs property.44
In the sharḥ of Ibn MiftÄḥ (Sharḥ al-azhÄr) we find the same trend: The discussion of the exclusion of awlÄd al-banÄt mainly occurs in the section concerning the valid wordings for the establishment of the waqf. More specifically, these relate to various legal definitions of types of beneficiaries and to which utterances produce which legal effect. There are several footnotes that do treat this topic, but these are much more recent than Ibn MiftÄḥâs text. In the footnotes, which are from the period after Ibn MiftÄḥ and before al-ShawkÄnÄ«âs time (the printed version of the Sharḥ al-azhÄr is based on a personal manuscript of al-ShawkÄnÄ«), only a few footnotes refer to the names of their authors. The footnotes diverge and are heterogeneous; they fall under different places in the waqf chapter. For instance, the dissent of al-Manṣūr Ê¿AbdallÄh b. Ḥamza is quoted.45 The legal importance of the footnotes depends on the consensus system of tadhhÄ«b and taqrÄ«r. The views that are considered authoritative will be analysed from al-TÄj al-mudhhab.46 In conclusion, they allow the exclusion of the awlÄd al-banÄt from a waqf, either by using specific words, or by claiming that âcustomâ indicates that the meaning of these words does not include the awlÄd al-banÄt.47
The conclusion is, as we see below, that the ZaydÄ« madhhab has, in general, not prohibited the exclusion of the awlÄd al-banÄt in a family waqf and it has upheld the HÄdawÄ« model, except for several notable, partly neo-SunnÄ« based opinions. The ḥadÄ«th, âno testamentation to an heirâ is treated in the âchapter of testamentsâ (KitÄb al-waá¹£ÄyÄ) and only minimally in the âchapter of waqfâ (KitÄb al-waqf). The view of the ZaydÄ« madhhab is (or at least was) contrary to this ḥadÄ«th, namely that a testament can indeed be given in favour of an heir.48
A waqf made from one-third only would thus automatically be legitimate when excluding the awlÄd al-banÄt. Al-HÄdÄ«âs waqf was still the norm, and arguably, his waqf model âservesâ the need for a family waqf that circumvents the inheritance rules.
6 The Fatwa Collection of Imam Ê¿Izz al-DÄ«n (d. 900/1495)
Imam Ê¿Izz al-DÄ«nâs fatwÄ collection is important for several reasons. It is perhaps the largest collection of ZaydÄ«/Yemeni fatwÄs of its time and the fatwÄ genre is important since it is close to codification and applied law. There are around one hundred fatwÄs in the waqf chapter of his fatwÄ collection.49 Apparently, excluding the children of the daughters was common practice. For example:
Question: If a man made a waqf for his children descending from him (Ê¿alÄ l-awlÄd, mÄ tanÄsalÅ«), are the awlÄd al-banÄt included in this or not?
The answer: The obvious [thing] is that they are included (al-áºÄhir dukhÅ«luhum), because they are also his children and part of his offspring (al-nasl). But he did include the words âdescending from himâ (mÄ tanÄsalÅ«), a wording which can only follow local custom (Ê¿urf) in meaning. If the term âchildrenâ (awlÄd) does not include awlÄd al-banÄt, then this is to be followed. It appears that the commoners (al-Ê¿awwÄm) think that these are not included in the term âchildrenâ and therefore this means that exclusion is in compliance with their intention (al-ikhrÄj muwaffaq li-qaá¹£dihim).50
Ethnography of âlegal consciousnessâ51 of commoners and local practice is here used to clarify what was meant in that specific waqf wording. Although Imam Ê¿Izz al-DÄ«n did not like al-HÄdÄ«âs form of waṣīya-waqf or the exclusion of heirs, he did accept the practice.52 He also explicitly distanced himself from the views of al-Manṣūr Ê¿AbdallÄh b. Ḥamza: He claims that al-Manṣūr made up a law that is difficult to follow because one cannot prove or disprove the lack of good intent (qurba). If the founder explicitly says âfor the sake of God,â then what should the judge believe?
⦠as for your claim that he did not intend qurba, this needs to be firmly based and established and it must be clear to the judge ⦠otherwise, the qurba is obvious (wa-illÄ fa-áºÄhir al-qurba) since the founder said âfor the sake of Godâ (fÄ« sabÄ«l AllÄh) and similar [statements]. Or, as you said, that he had excluded the awlÄd al-banÄt [and therefore did not intend qurba] as according to al-Manṣūr bi-LlÄh ⦠And this is his view only ⦠and the view of al-Manṣūr is weak, and we do not accept (lÄ nusallim lahu) that excluding some of the heirs (ikhrÄj baʿḠal-waratha) contradicts a pious intention (yunÄfÄ« qaá¹£d al-qurba). He, al-HÄdÄ«, whose madhhab pre-conditioned qurba, also excluded the awlÄd al-banÄtâ¦. No, this view [of al-Manṣūr] is weak and I do not like to side with it.53
Imam Ê¿Izz al-DÄ«nâs position is clear. We should not forget that Ê¿Izz al-DÄ«n was an imam based in Saʽda and was partly a âcounter-imamâ to various imams in the Sanaa area.
7 IkhtiyÄrÄt of al-Mutawakkil IsmÄÊ¿Ä«l (d. 1087/1676)
Imam al-Mutawakkil IsmÄÊ¿Ä«l54 was born in 1610 and ruled from 1644 to 1676 and was the son of the founder of the QÄsimÄ« dynasty, al-Manṣūr al-QÄsim b. Muḥammad55 who gradually drove out the Ottomans. The QÄsimÄ«s made the imamate hereditary56 and ruled over a population that consisted more of ShÄfiÊ¿Ä«s than ZaydÄ«s; this was a result of state expansion to the south and west. This period also produced several jurists who engaged in the ḥadÄ«th sciences and sought to incorporate SunnÄ« concepts, especially the ḥadÄ«th sciences, into Zaydism. Al-Mutawakkil IsmÄÊ¿Ä«l was considered a significant scholar and jurist.
He ordered that judges (ḥukkÄm) follow a decree called al-MasÄʾil al-murtaá¸Ät.57 These imamic decrees were later called ikhtiyÄrÄt. Imam al-Mutawakkil IsmÄÊ¿Ä«lâs decree is a four-and-a-half page list; each paragraph begins with âwa-annaâ in red ink. These apparently align to the chapters and structure of the Sharḥ al-azhÄr. For example: âAnd, waqf that contains an exclusion of an heir or reduces his inheritance is not pious and is therefore invalid.â58 The decree to the judges is very clear: A waqf made in favour of some heirs that disadvantages other heirs can be invalidated in court. As such, the rule is against mainstream contemporary ZaydÄ« fiqh or HÄdawÄ«-ZaydÄ« fiqh.
A commentary to the decree, called KitÄb taftīḥ abá¹£Är al-quá¸Ät ilÄ azhÄr al-masÄʾil al-murtaá¸Ät,59 was written to explain the arguments and evidence behind the rules. The catalogue of the Maktabat JÄmiÊ¿ al-KabÄ«r gives the author as á¹¢Äliḥ b. DÄwÅ«d al-ÄnisÄ« (d. 1062/1651 or 52). Al-ShawkÄnÄ« mentions that another important scholar and judge of his time, IsmÄÊ¿Ä«l b. YaḥyÄ l-á¹¢adÄ«q (d. 1208/1794), also wrote a commentary (wa-sharraÊ¿a fÄ« sharḥ al-MasÄʾil al-murtaá¸Ät) on the decree.60 Al-ÄnisÄ«âs commentary, which is used here,61 is distinctly traditionist in its argumentation in support of Imam al-Mutawakkilâs decree. The arguments in favour of the rule are as follows:
First, it refers to QurʾÄnic verses, then, to various ḥadÄ«ths, often only pieces of the ḥadÄ«ths, which were presumably well known to the reader. They are put forward as a long list of arguments supporting the rule, but the direct relationship between the ḥadÄ«ths and the rule is not spelled out explicitly. One of them is as follows:
From AbÄ« Ê¿AbbÄs: There used to be inheritance [only] for the children, and the testament (waṣīya) was for the parents and relatives (al-waṣīya li-l-wÄlidayn wa-l-aqÄribÄ«n [Q2:180]), then this [verse] was abrogated and God sent the inheritance verses.
The ḥadÄ«th âno testamentation to an heirâ (lÄ waṣīya li-wÄrith) is also stated, but the reason this ḥadÄ«th is directly relevant for waqf is not clarified. Then the argument changes from a listing of texts to a more analytical and argumentative approach concluding: âall these narratives (akhbÄr) tell us about the evil in reducing the inheritance for oneâs heirs, even with justification, and even in a testament (waṣīya), charity (á¹£adaqa), vow (nadhr), or waqf, or likewise.â Then, a part of a fatwÄ of al-Manṣūr Ê¿AbdallÄh b. Ḥamza is quoted: that a waqf that prevents an heir [from taking] his inheritance (qaá¹Ê¿ wÄrith) is invalid.62 The text of the commentary even states âand the son of a daughter is in our view an heirâ (walad al-bint wÄrith Ê¿indanÄ). As mentioned before, the awlÄd al-banÄt are not heirs in the inheritance rules in the first place. More fatwÄs by al-Manṣūr are then quoted, also the one given above invoking the inheritance practices during the jÄhiliyya.63
The argument quotes the views in favour of the rule only, and one might expect some more âtechnicalâ or logical ways of establishing validity, such as explicitly invoking an analogy (qiyÄs) or something similar, in order to âtransferâ the authority from the QurʾÄn and the ḥadÄ«ths to the chosen rule, but this is not done explicitly. It uses an âimplicit analogyâ to import the validity from a range of quotations from the texts of the QurʾÄn and the ḥadÄ«ths, as if a âbombardmentâ of textual proofs might, in sum, appear as a valid argument. This way of argumentation is more often used by the traditionists or those who argue against established views of the ZaydÄ« law school. It would seem that the presumptive reader of such arguments is not a legal specialist. For example, a legal specialist knows that the ḥadÄ«th limiting the waṣīya to one-third does not, according to established fiqh, automatically limit the creation of a waqf. The argument ignores counter-arguments or the traditional HÄdawÄ« fiqh in this field. The same applies to the many ḥadÄ«ths arguing for the equal treatment of oneâs children. These are generally not seen to be specific enough to invalidate a waqf that does not follow the inheritance shares. However, these are the only arguments available for those who wish to limit the family waqf, as we see in the example of Imam YaḥyÄâs decree.
The argument of the commentary thus relies on a long list of ḥadÄ«ths that are only partially relevant, and on a ZaydÄ« imam, al-Manṣūr, who took a principled stand against the HÄdawÄ« waqf. The sum of these textual âproofs,â however, produces an impressive effect. One wonders if this impressive rhetoric was also meant to be part of a wider anti-HÄdawÄ«-ZaydÄ« campaign similar to that undertaken by al-ShawkÄnÄ«, but this would need more research to establish. Unfortunately we know very little about the actual legal practice and effects produced by this new codification by al-Mutawakkil IsmÄÊ¿Ä«l, hopefully in the future historical documentation will show us more.
8 Al-RisÄla al-Mahdawiyya from 1188/1774
Just one hundred years later a new imamic ikhtiyÄrÄt64 was issued, namely that of Imam al-MahdÄ« l-Ê¿AbbÄs (r. 1161â89/1748â75). It is called al-RisÄla al-Mahdawiyya and was composed at the very end of 1188/1774 and rewritten at the beginning of 1189/1775, which is also the year al-MahdÄ« l-Ê¿AbbÄs died. By this time, the imams had stopped claiming to be âabsolute mujtahidsâ65 and the role of the imam was split into a legal and religious position that was executed by a chief qÄá¸Ä«, while the imam was the political leader, almost a sultan.66 Under Imam al-MahdÄ« l-Ê¿AbbÄs the chief qÄá¸Ä« was, for a long time, al-QÄá¸Ä« YaḥyÄ l-SaḥūlÄ«; he took office around 1153/1740, but was imprisoned in 1173/1759.67 We do not know who the chief qÄá¸Ä« was around the time the decree was authored in 1188/1774.68 When the Imam died, his son al-Manṣūr Ê¿AlÄ« took over and returned al-SaḥūlÄ« to his position where he remained until he died in 1210/1795, the year al-ShawkÄnÄ« was given the position as chief qÄá¸Ä«.69
The RisÄla al-Mahdawiyya70 only addresses three questions or rules: (1) âno testamentation to an heir,â (2) waqf for some of the heirs without others, and (3) the validity of legal ruses (ḥiyal) in circumventing the right of pre-emption (shufÊ¿a). Below I analyse only the two first questions. As an introduction to the decree, we are given the whole genealogy of Imam al-MahdÄ« l-Ê¿AbbÄs up to the founder of the QÄsimÄ« dynasty, al-Manṣūr bi-LlÄh al-QÄsim b. Muḥammad; it is also pointed out that he was a descendant of the Prophet:71
[Line 1] Of our Lord al-MahdÄ« l-Ê¿AbbÄs, son of Imam al-Manṣūr Ḥusayn, son of al-Imam al-Mutawakkil QÄsim, son of Ḥusayn, son of al-MahdÄ« Aḥmad, son of al-Ḥasan, [2] son of al-Ḥasan72 [3], son of al-Manṣūr al-QÄsim, son of Muḥammad, son of Ê¿AlÄ«, son of Muḥammad, son of Ê¿AlÄ«, son73 of Godâs Prophet, peace of God be upon him and his descendants.
Then we are presented with more information about the circumstances of the authorship of the decree; that it was sent to all the judges at the very end of 1774:
[4] [As this is] sent to all judges on 20 ShawwÄl 1188 [24 December 1774] and this is what it states: In the Name of God the Compassionate, the Merciful â¦74
The decree explicitly orders the judges to follow its rulings as these are legal questions that pose severe problems for the judiciary, or âquerns of disputes,â that continue to grind and revolve around the same problems:
[6] ⦠So, because the opinions of the judges in many questions diverge and because this has led to damage and disorder, [7] both specifically and generally ⦠and [this has caused] the extension of many a [legal] dispute, therefore this decree orders ⦠all the judges [8] to follow it, in accordance with Godâs religion and by following the noble law school (al-madhhab al-sharÄ«f), and no letter is to be changed ⦠[9] and [what] follows are some of the most problematic questions around which the quern of dispute revolves:
Then follow the three separate main sections of the decree: (1) that testamentation to heirs is valid, (2) that exclusion of the awlÄd al-banÄt in waqf is valid, and (3) that circumventions of the rules of pre-emption (shufÊ¿a) are valid.75
8.1 The Question of Testamentation to an Heir
[9] In the question of testamentation to an heir, the view according to the sound law school (al-madhhab al-qawīm) is that it is valid.
The jurisprudential problem concerning the âtestamentation to heirsâ is not directly relevant for waqf, but it is very important indirectly, as waqf is often made through a testament in order to take effect after the death of the founder, and this is especially so in cases of family waqf in ZaydÄ« Yemen. In the SunnÄ« law schools testamentation was much more restricted than in Zaydism and in ShÄ«Ê¿Ä« fiqh, as mentioned in the beginning of the chapter. This relates to, among other things, a ḥadÄ«th that became important quite late in the development of Islamic law; this ḥadÄ«th states âno testamentation to heirs.â The debate around the status of this specific ḥadÄ«th is very well elaborated by David Powers76 and here I only follow the argumentation as it is presented in the decree, before turning back to the analysis:
[10] As for how this preference (tarjīḥ) came about [towards the validity of this question], we refer to how it was preferred by the great warrior and jurist [11] who this land has benefited so much from, Imam al-HÄdÄ« YaḥyÄ b. al-Ḥusayn, and in this he was followed by his successor al-Murtaá¸Ä [12] and al-NÄá¹£ir.77 After this, it was preferred by AbÅ« l-Ê¿AbbÄs, and AbÅ« ṬÄlib followed, and AbÅ« ṬÄlib even claimed that this view is the consensus (ijmÄÊ¿) of the ahl [13] al-bayt. It is also elaborated upon by the scholar Ibn MiftÄḥ in the Sharḥ al-azhÄr and [al-FaqÄ«h YÅ«suf] Ibn Ê¿UthmÄn in his book al-ThamarÄt, which refers to the statement of God [Q 2:180]: [14]
It is prescribed, when death approaches any of you, if he leave any goods, that he make a bequest [testament] to parents and next of kin, according to reasonable usage; this is due from the God-fearing.78
This is also referred to in [the fiqh works] ShifÄʾ al-uwÄm79 and [15] also in BulÅ«gh al-marÄm.80
The decree lists major ZaydÄ« scholars and authoritative works in classical Zaydism. Then it points even more specifically to the legal problem: The verse Q 2:180 is interpreted as a verse that proves that it is permissable to undertake testamentation to heirs. This verse, according to SunnÄ« consensus, was abrogated by the later revealed inheritance verses. However, it is difficult to argue that they also completely overruled any possibility of testamentation to heirs. To support this, the ḥadÄ«th âno testamentation to an heirâ was used and therefore the validity of this ḥadÄ«th is an important part of the (SunnÄ«) argument, although usually a ḥadÄ«th cannot overrule a QurʾÄnic verse. The ZaydÄ«s did not follow this argument; rather they made the jurisprudential explanation (given below) part of the decree. The problem is somewhat complicated and the clarification falls towards the end, in a somehow inverted structure:
The essence of the question (al-ḥÄá¹£il) is that concerning the sequence of revelation (sabab al-nuzÅ«l) the Ê¿ulamÄʾ disagreed: Does this QurʾÄnic verse [Q 2:180] still carry legal effect (muḥkama) or is it abrogated (mansÅ«kha) [by the later revealed inheritance verses]? Indeed, most scholars inclined towards the view that [16] it was abrogated. This [theoretical position] is built on the view that the testament (waṣīya) was originally obligatory (wÄjib). This view is attributed to the commander of the faithful, Ê¿Äʾisha, Ê¿Umar, and Ê¿Ikrima [17] and this is the view that is held by the imams of the ahl al-bayt. The school of al-HÄdÄ« elaborated that it was only the obligatory aspect that was abrogated, not the [18] permissible aspect of the rule (naskh al-wujÅ«b dÅ«na al-jawÄz) and further, that the statement âno testamentation to an heirâ refers to the view that in the very beginning of Islam the testament to heirs was obligatory. [19] This was one of the two legal aspects of the rule, and the abrogation did not affect the second legal aspect, namely the permissibility of testamentation to an heir.
Despite this, in this noble decree there is a unification of views also in accordance with [20] the majority of the uṣūl scholars who validate the concept [that some verses] of the Book are abrogated and the concept of abrogation of a mutawÄtir ḥadÄ«th by an ÄḥÄd [single transmission, weaker] ḥadÄ«th. They took this claim to the point that this specific ḥadÄ«th, even if it is recognized as originally ÄḥÄd, [21] was still given validity, as if it [had become] mutawÄtir because of the usefulness of this [ḥadÄ«th].81
It is elaborated upon by al-ZamakhsharÄ« that this restriction [to one-third] is only relevant in cases of intended damage (muá¸Ärra)82 from he who makes the testament (al-mūṣī) [22], according to the words of the exalted âno damageâ [Q 4:12]. Al-ZamakhsharÄ« states: âThis refers to a testament of more than one-third, or one-third exactly. If less than one-third is given as testament, even if the testatorâs intention is to cause damage to his heirs, or anger between them, this is not Godâs concern.â83
The argument starts by referring to the mainstream ZaydÄ« view, which explains why the ḥadÄ«th âno testamentation to an heirâ does not carry any legal prohibition. That is, in the early days of Islam the common understanding of Q 2:180 was that the testament was not only âallowed,â but indeed âobligatoryâ (wÄjib). The crux of the argument is that only the testamentâs obligatory character (al-wujÅ«b) was abrogated, not its permissibility (al-jawÄz). Thus the testament to an heir changed from being obligatory to being permissible.84 The SunnÄ«s and traditionists opposed to this somehow peculiar explanation responded by simply overlooking it. They refer to the strength of the ḥadÄ«th and the principle that a strong, and preferably mutawÄtir ḥadÄ«th indeed can abrogate the QurʾÄn, or help in the argumentation of the abrogation. The author of the decree does not attack this directly, and he admits that the ḥadÄ«th is considered important. However, he also points to the fact that the ḥadÄ«th in question is not firmly defined as mutawÄtir, the reason the ḥadÄ«th was given this strength, was its usefulness. Whether or not consensus can upgrade a ḥadÄ«th from ÄḥÄd to mutawÄtir is not relevant here. Here the relevance is the way the author of the decree points to this human construction in an otherwise literalist, traditionist argument and uses it to implicitly undermine the argumentative power of the ḥadÄ«th. The author uses al-ZamakhsharÄ« as a source of authority85 and points to al-ZamakhsharÄ«âs interpretation of Q 4:12, which states that inheritance shares can be distributed after payment of a loan or a non-damaging testament; less than one-third, if the testament does not produce damage or disadvantage.86
Later in the debate about this ḥadÄ«th, al-ShawkÄnÄ« states that according to the important scholar Muḥammad b. IsmÄÊ¿Ä«l al-AmÄ«r (d. 1182/1769), who was contemporary to this decree, testamentation to an heir is considered valid, while al-ShawkÄnÄ« himself was opposed to this, and he elaborates upon this in his treatises on the topic in al-Fatḥ al-rabbÄnÄ«.87
8.2 The Question of Waqf for Some of the Heirs Without Others
The second question the decree addresses is whether or not the exclusionary form of waqf, that is, a waqf made for some of the heirs that excludes others, is valid.
[23] And among these [questions] is the question of waqf for some of the heirs without others. It is the law school of our imams, peace be upon them, [24] to allow this (tajwÄ«z dhÄlika) and to argue for its validity (al-qawl bi-á¹£iḥḥatihi). Such a valid exclusionary waqf rarely occurs, unless the founderâs religion, piety, and knowledge about the law can be established, as al-Sayyid al-Ê¿AllÄma Ê¿Izz al-DÄ«n b. al-Murtaá¸Ä [25] b. al-QÄsim clarified, the view of Imam Ê¿Izz al-DÄ«n, who made the following response to a question from someone who made a waqf for his children (awlÄdihi) and excluded the awlÄd al-banÄt.
Imam Ê¿Izz al-DÄ«n upheld, as we can see from the [26] formulation of his answer, the exclusion of the awlÄd al-banÄt and similar to what was mentioned, does not contradict a pious intention (lÄ yunÄfÄ« qaá¹£d al-qurba) and it is not prohibited for him to do (lÄ yumnaÊ¿ minhu) if the founder made the exclusion with [good] intention [27] or if his intention can be known. However, Imam Ê¿Izz al-DÄ«n also stated,
âBut we do have a principle (lakinna lanÄ Ê¿aqÄ«da) which is that the good intention of the founder only seldom appears absolute (lÄ yukÄd yatamaḥḥaḠqaá¹£d al-qurba illÄ nÄdiran), such as in a person [28] whose religion, moral nature, piety, and knowledge about the rules of waqf can be established. These [persons] are fewâeven if they are not misusing this rule made by our forefathersâwho made [29] waqf for the purpose which is outwardly claimed.â88 So, the role of doubt is emphasized by Imam Ê¿Izz al-DÄ«n, which means to avoid rushing to use this rule [30] that the imams made. Then he said in the end of the fatwÄ:
âLet us not forget the element of doubt without mentioning those who did this among the imams and the pious forefathers; it is enough to mention as proof of that, the [31] waqf attributed to the most knowledgeable of imams and he who was himself an ocean of knowledge, [al-HÄdÄ«] YaḥyÄ b. al-Ḥusayn, may peace be upon him, and similarly, more than one of the later imams, [32] among them our father Imam al-HÄdÄ« Ê¿AlÄ« b. al-Muʾayyad.89 Indeed, he excluded the awlÄd al-banÄt and presented arguments for the validity of the waqf (iḥtajja Ê¿alÄ iá¹£Äbatihi) and produced proofs (wa-Ê¿allala Ê¿ilal) and clarified and elaborated (awá¸aḥa wa-bayyana) the pious intention he had by using weighty evidence (adilla rÄjiḥa).â90
The argument in this question is almost exclusively based on a fatwÄ by Imam Ê¿Izz al-DÄ«n. The author also refers to the practice of âseveralâ imams and the very beginning of the argument refers to the fact that the madhhab indeed renders the exclusionary form of waqf valid. The crux of Imam Ê¿Izz al-DÄ«nâs argument is that piety and pious intention is difficult to measure and that there could be piety even in an exclusionary waqf. The rule that pious intent is difficult to measure should not be used as an excuse hastily. This way of relating the validity of a waqf to piety and then saying that piety is difficult to establish, therefore the exclusionary waqf is valid, is a type of argument also found in al-QÄá¸Ä« Ê¿Abd al-JabbÄrâs fatwÄ below. The result is that a waqf excluding some heirs is valid if it is made by a knowledgeable person with good intentions.
9 al-ShawkÄnÄ«âs Views (d. 1250/1834)
Al-ShawkÄnÄ« was opposed to the idea of allowing the exclusion of the awlÄd al-banÄt in waqf. He did not accept the opinions of previous imams as valid simply because they were imams. Al-ShawkÄnÄ« claimed that he was not bound by the HÄdawÄ«-ZaydÄ« law school and that he could revert to the original sources of the sharÄ«Ê¿a and build the law from there.
9.1 The Nayl al-awá¹Är
Already in 1795 when he was just thirty-five years old, al-ShawkÄnÄ« had completed his ḥadÄ«th commentary, Nayl al-awá¹Är [The achievement of the goal].91 This work is a ḥadÄ«th commentary in which important ḥadÄ«ths are collected according to legal topic; it includes a chapter on waqf. At the end of a section called âSection on the question that children of the children are included in the term children by circumstantial evidence, but not absolutely,â92 he mentions: âWhoever makes a waqf for his children (awlÄd), [in this] the children of the children enter, whoever is born, and also the females, and in this [question] there is disagreement: What strengthens the argument of inclusion of the females is â¦â93 And then he mentions several ḥadÄ«ths, the relevance of which is sometimes hard to see for scholars not specialized in ḥadÄ«th.94 Then, very shortly after this, he excuses himself for not providing the full argument for the sake of shortening the discussion.
What we can understand from the above is that al-ShawkÄnÄ« does not discuss the legality of excluding the females or the awlÄd al-banÄt as such. He only discusses what the term âchildrenâ (awlÄd) means legally; whether or not the term includes the awlÄd al-banÄt according to that specific ḥadÄ«th. Thus in his statement there is no prohibition of exclusion per se. Nowhere in the Nayl does he address the issue of this type of family waqf. The Nayl is a typical example of scholarly, academic fiqh that is more oriented toward the ḥadÄ«ths as an academic science than towards legal debates in the field of codification. This is an example in which the question arises because there is material available in the form of ḥadÄ«ths, and not because the problem was encountered in âthe real world.â In this way, fiqh and certain knowledge is produced, but it is, arguably, poor material for law. Note that this work was done early in his career and we do see a development in his authorship over time, in that his later works are much more legally oriented.
9.2 al-ShawkÄnÄ«âs FatwÄ Collection, al-Fatḥ al-rabbÄnÄ«
There are at least two treatises in al-Fatḥ al-rabbÄnÄ« that are highly relevant: Both these treatises also appear in very abbreviated form and slightly changed versions in his critique of ZaydÄ« fiqh, al-Sayl al-jarrÄr [The raging flood]. The first fatwÄ is a compound of several related questions; below is a translation of the sub-question among those related to the form of family waqf that excludes the awlÄd al-banÄt.95 In this section of the fatwÄ he states that most waqf in those days were made with the purpose of excluding some of the heirs: âAnd when this situation reflects the general picture, then the a priori view of every waqf should be the lack of pious intention. The judges are not to render a waqf valid, except after the establishment of a strong probability (ghalabat al-áºann) of the presence of pious intention.â96 His stand is clear and his argument opposes the exclusion of heirs in waqf, but what he means by âstrong probability of pious intentionâ is not clear. Al-ShawkÄnÄ« was a chief qÄá¸Ä« and the question we must ask is, to what degree was such a fatwÄ meant as law, or was it a polemic against the HÄdawÄ«-ZaydÄ«s who allowed for these âlegal ruses.â In order to answer that question we must find evidence that his view in these matters was enforced in court, and this is a topic that has, unfortunately, not been researched.
9.3 al-ShawkÄnÄ«âs Views in the Sayl al-JarrÄr
Several of al-ShawkÄnÄ«âs fatwÄs and treatises were abridged and compiled in the Sayl al-jarrÄr. Below is a fatwÄ including argumentation against the exclusion of heirs. It is written in clear language, but scattered with polemical metaphors, in an almost populist style. It is here that for the first time in this debate we see the explicit use of the term waqf dhurrÄ«:
And he [Ibn al-Murtaá¸Ä, the author of the Sharḥ al-azhÄr] says: When it comes to defining the beneficiaries, a condition is good intention (qurba).
I say: This waqf, that the sharÄ«Ê¿a brought us, and that Godâs Prophet encouraged us make, and which his followers also practicedâthis is indeed what brings one nearer to God, Ê¿azza wa jallÄ.97 Waqf is a continuous charity in which the merit is not cut off from the actor (al-fÄÊ¿il) even after his death. Therefore, it is invalid (lÄ yaá¹£iḥḥu) if a beneficiary is not pious, because this is against the essence of a sharÊ¿Ä« waqf. Pious intention (qurba) is found in everything that the sharÊ¿ defined as meritorious for the actor, whatever it may be.
For example, he who makes a waqf for the feeding of a specific type of respectable animal; his waqf is valid, because it has been established in the true Sunna: âthat in every liver there is some goodâ98 and similarly, if someone makes a waqf for the sake of cleaning a mosque or something that eases the lives of [fellow] Muslims, that calls the Muslim to his path,99 then verily, this waqf is valid because of the strong presence of evidence (li-wurÅ«d al-adilla al-dÄlla) pointing to an outcome in the form of merit (ajr) for the actor of those actions. Note that these examples of waqf mentioned above are similar and result in merit for its actor, and belong to what is certain knowledge when it comes to the production of merit.
So far, al-ShawkÄnÄ« has explained that waqf in general is indeed valid, at least for certain types of beneficiaries, and that these types of beneficiaries can be firmly established based on various ḥadÄ«ths that state that a certain act produces merit. Then he changes his focus to the negative forms of waqf:
As for the types of waqf that are made with the intention to prevent what God wanted to enhance, and to deviate from Godâs inheritance shares, then verily, these types are fundamentally invalid (bÄá¹il min aá¹£lihi) and such a waqf cannot ever have taken contractual effect in the first place. An example is he who makes a waqf for his male children without the females among them and similar to this. Verily, in this type of waqf there is no pious intention, rather there is an intention to circumvent Godâs rules and recalcitrance toward the sharÄ«Ê¿a He has made for his servants.100 This person has thus made his un-godly waqf as an instrument for this diabolic purpose!101 Oh, how common is this type of waqf in our times! And the same [for] a waqf made by a person whose only intention is to keep the property within the male descent line (al-dhurriyya) and to prevent the property of leaving the descent line.102 Such a person makes it into a family waqf (waqf Ê¿alÄ l-dhurriyya). Verily, this person only wants to deviate from Godâs rules which is the [intergenerational] transfer of property through inheritance (intiqÄl al-milk bi-l-mÄ«rÄth), so that the heir is given his right and can do what he wants with his inheritance. Whether the heirs are rich or poor is not at all important in this question: waqf is for God.
His message is clear, at least in his moral condemnation. It is noteworthy that he explicitly states that Godâs rules are that the intergenerational transfer of property should follow the inheritance rules and not other concepts like waqf or waṣīya. Then he notes the exceptions:
However, there may on rare occasions be found pious intention in family waqfs according to the needs of individuals. It is for the public administrator (al-nÄáºir) to define the factors that are to be followed in this. Among these rare cases are waqfs for those among the descendants who maintain piety and good behavior, or those who engage in studies of Ê¿ilm. This type of waqf may perhaps (rubbamÄ) contain a pure goal and an achievable pious intention (qurba mutaḥaqqaqatan).
The opening al-ShawkÄnÄ« gives for the use of family waqf, is a family waqf that is explicitly tied to charitable purposes inside the family. This is also the position of the law today.103 He does not specify how this should be legally specified for a judge in doubt. In the final paragraph he produces some polemical reflections in which he claims that although family waqf remains a moral question, the validity of family waqf in general is not a legal concept that man can simply validate himself, rather it is up to the sharÄ«Ê¿a. âAll acts are judged according to intention (al-aÊ¿mÄl bi-l-niyyÄt), however, the validation of the exclusionary family waqf should be delegated to what God has ruled between his worshippers, and His approval is the better and right.â104
9.4 al-ShawkÄnÄ«âs Views in al-DarÄrÄ«
Among al-ShawkÄnÄ«âs later works is a fiqh work in a matn-sharḥ style called al-DarÄrÄ« l-muá¸Ä«ya sharḥ al-Durrar al-bahÄ«ya. It is very short, and the matn of the chapter on waqf is just a paragraph. Here, he has one rule, among other rules that seem to be included because of their basis in ḥadÄ«ths rather than their direct usefulness, but this rule can be recognized from the previous debates: âWhoever makes a waqf that leads to disadvantage to an heir; this waqf is invalid (wa-man waqqafa shayʾan muá¸Ärratan li-wÄrithihi fa-huwa bÄtil).â105 His explanation and commentary (sharḥ) on this is:
This is so because it [waqf] is among the concepts that God the exalted did not authorize, except and only as continuous charity (á¹£adaqa jÄriya), which is of [continuous] benefit for the founder; not as an ongoing sin with a resulting eternal punishment. God the exalted prohibited harm (á¸irÄr) in His book, both generally and specifically (Ê¿umÅ«man wa-khuṣūṣan), and the Prophet prohibited it in general in the ḥadÄ«th âNo harm in Islamâ (lÄ á¸arar wa-lÄ á¸irÄr fÄ« l-IslÄm). It was also mentioned previously, concerning specific rules related to harming [oneâs] neighbour (á¸irÄr al-jÄr) and [doing] harm by [oneâs] testament (á¸irÄr al-waṣīya) and similar to these two.106
His sharḥ adds arguments to underpin the rule. As a sharḥ compared to other fiqh debates, it is univocal. This aspect of univocality makes it very close to the genre of imamic decrees and codification and less a reconstruction of an academic fiqh discussion. By looking more closely at his arguments we see that they stop long before stating the exact relationship between âno disadvantage to an heir in waqf,â and âno harm in Islam,â and the relation between not âharming [oneâs] neighbourâ and â[doing] harm by [oneâs] testament.â He does not identify precisely how he takes validity from one rule and transfers it to the next. The principle of âno harm in Islamâ is a general rule, while in the other two, which are considered more specific, a more specific underlying cause (Ê¿illa), must be identified. This belongs to the technicalities of analogy (qiyÄs), but again, this qiyÄs is, as before in this debate, not explicitly invoked in this specific rule by al-ShawkÄnÄ«. It is merely left for the reader to assume. By calling it a qiyÄs, it would probably not be up to the âstandardsâ of argumentation that the uṣūl literature for a proper qiyÄs demands, thus the level of argumentation is deliberately kept vague, and the validity is invoked by numerous citations of ḥadÄ«ths and citations from the QurʾÄn. Reading his text, we almost forget that there are arguments against al-ShawkÄnÄ«âs views, which centre on the idea that it is not considered âharmâ in the first place to favour some of oneâs children as long as it is within the limit, that is, the one-third, and that an individual is given a certain freedom concerning what he does with his wealth during his lifetime.
Al-ShawkÄnÄ« has written extensively on his views on the ḥadÄ«th âno testamentation to an heir,â in a treatise called IqnÄÊ¿ al-bÄḥith bi-dafÊ¿ mÄ áºannuhu dalÄ«lan Ê¿alÄ jawÄz al-waṣīya li-l-wÄrith [The satisfaction of the researcher in correcting his assumption concerning the evidence of the validity of the testament to an heir].107 And it suffices here to say that he takes a SunnÄ« stand, and opposes the argument as exemplified in the RisÄla al-mahdawiyya. According to him, the treatise was made in response to a work by Ibn al-AmÄ«r (d. 1183/1769), in which Ibn al-AmÄ«r argued for the validity of testamentation to an heir. Ibn al-AmÄ«râs treatise is called IqnÄÊ¿ al-bÄḥith bi-iqÄmat al-adilla bi-á¹£iḥḥat al-waṣīya li-l-wÄrith [The satisfaction of the researcher by presentation of the evidence of the validity of testamentation to an heir].108
In concluding the section on al-ShawkÄnÄ«âs views, we can say that in his later works he was firmly opposed to the exclusionary form of family waqfs. His moral condemnation is crystal clear, as is his legal prohibition, although there are some cases in which piety can be a valid foundation. We do not have the historical evidence necessary to determine to what extent the judges used this rule. Thus until the period of Imam YaḥyÄ, the history of codification is only a history of the norm; the court practice can only be assumed from the normative text based in the assumed political power of the authorities. As Haykel reminds us, we should not forget that the act of producing and publishing ikhtiyÄrÄt was also an act of demonstrating the ability to rule. Haykel mentions that the ikhtiyÄrÄt thus had a âreflexive qualityâ; they made the ruler appear learned.109 Thus âcodificationâ could also have a discursive aspect wider than the mere issuing of laws intended to be followed. This discursive element can be seen clearly in the quotation from al-Sayl al-jarrÄr above. Even if he was a chief qÄá¸Ä« in a position to produce law, it is problematic to call his works âcodificationâ until we have more historical evidence about actual court practice.
10 Imam YaḥyÄâs Decrees
In 1911 when Imam YaḥyÄ took over the political power and judiciary in the highlands from the Ottomans, he did not immediately issue any decrees on the matter of family waqf. The Ottomans used ḤanafÄ« judges in some cities, but we have little information about the extent to which they applied ḤanafÄ« law and hereunder waqf law.110 With regard to legal rulings, we know that waqfs excluding the awlÄd al-banÄt were legal, at least according to the most common views in the ḤanafÄ« law school, as is shown at the end of this chapter.
We do not know exactly when Imam YaḥyÄ started to issue his decrees (ikhtiyÄrÄt), only that he set up an appeal court in Sanaa even before he entered the city. The first decrees were not printed. One early handwritten example dates from 1934, and can be found in al-Ê¿AlÄ«mÄ«âs al-TaqlÄ«diyya.111 A printed version, and indeed a version that is versified and commented upon, á¹¢irÄá¹ al-Ê¿ÄrifÄ«n, was made by al-ShamÄḥī and published in 1937.112 Both these versions contain codified legal rules related to the balance between the inheritance rules and the waqf rules.
10.1 The Early Years of Imam YaḥyÄ
During the first years, that is from 1911 and into the 1920s, we do not know of any decrees directed to all the judges.113 Some material that is relevant for this early period can be found in the first printed version of the Sharḥ al-azhÄr from 1913â14.114 In the first pages there is a short collection of fatwÄs and treatises (which were retained in the 1980 edition of the Sharḥ al-azhÄr) that centre on âpracticalâ legal problems of the type a local judge would encounter: customary sharecropping, marriage, inheritance, and also waqf. It is unlikely that the fatwÄs in the printed version of the Sharḥ al-azhÄr of these early years diverged significantly from the legal views of Imam YaḥyÄ and they must at least represent some sort of consensus of the scholarly community around him at the time.
There are two waqf related fatwÄs, both presumably issued by al-QÄá¸Ä« Ê¿Abd al-JabbÄr al-JabbÅ«rÄ« l-á¹¢anÊ¿ÄnÄ« (d. 1184/1771).115 He was thus contemporary with Imam al-MahdÄ« l-Ê¿AbbÄs, but his text is included here because his fatwÄ was reused in the printed edition of the Sharḥ al-azhÄr. The first fatwÄ starts with a rule that is not directly relevant here, but the second rule is and the two rules are formulated together and conceptually linked: âA question [is related] about a man who made waqf of some of his property for his heirs (al-waratha), within the third (qadr al-thulth) as a charity (ḥukm al-á¹£adaqa).â The usage of terms reveals that the one who asks, mixes several concepts. What should a judge or a muftÄ« think when he hears the concepts waqf, heirs, the third, and charity together in one short sentence? The question demonstrates why this fatwÄ was included in the introduction of the Sharḥ al-azhÄr. The question continues: âIs (hal) the division (al-qisma) to be according to persons (Ê¿alÄ l-ruʾūs), where the males and the females are given the same, or is the division to be according to the inheritance shares (al-farÄʾiá¸)? The waqf is for the dhurriyya and its division is not specified.â Both options are legal in ZaydÄ« waqf fiqh, and it is up to the founder to specify this. However, if it has not been specified, the former is to be assumed.
And are (hal) the awlÄd al-banÄt included after their inheritors have died, and are their children (Ê¿ayyÄluhunna) [of the awlÄd al-banÄt] included in the aforementioned waqf or not?
Al-QÄá¸Ä« Ê¿Abd al-JabbÄr answered: âThe waqf is to be divided equally according to individuals (Ê¿alÄ l-ruʾūs) if the founder did not specify that the waqf is according to the sharÄ«Ê¿a fractions (al-farÄʾiḠal-sharÊ¿iyya) [the shares of the inheritance rules] and as for family waqf (al-dhurriyya), the children of the females are included.â116
Our focus is only on the last part of the fatwÄ: âAs for the term descendants (dhurriyya), the children of the females are included.â This is actually in harmony with most views, that is, that the term âdescendants,â al-dhurriyya, is a term or wording that includes the awlÄd al-banÄt, while other terms can be used in the waqf initiation to exclude them. Thus this fatwÄ does not claim that the exclusionary waqf (which excludes the awlÄd al-banÄt) is illegal, it simply claims that the term dhurriyya includes them. Before the following waqf fatwÄ no new author is introduced, thus presumably it is provided by the same author, al-QÄá¸Ä« Ê¿Abd al-JabbÄr.
The answer to another question concerning whoever intends with a waqf to exclude heirs:
The answer: He who intends with the waqf the exclusion of heirs, this waqf is invalid (lÄ yaá¹£iḥḥu) and no legal effects take place (lÄ yunfadhu minhu shayʾ). Pious intention is a condition in waqf and whoever expresses with his intent (qaá¹£d) to ignore what God has written [has committed] a great sin. However, and with no doubt, the plaintiff (al-muddaÊ¿Ä«) must produce evidence (iqÄmat burhÄn) of his claim that the founderâs intent was to exclude (qaá¹£d al-ḥurmÄn), because the intent is a matter of the heart (amr qalbÄ«) that can only be established (innamÄ yastadillu) by what is expressed in words of legal meaning (bi-mÄ áºahara min al-aqwÄl al-dÄlla), thus he has to prove that the exclusion is intended (maqṣūd), such as is elaborated in the chapter of acknowledgements (iqrÄr) in the fiqh books.117
The first half of the fatwÄ follows the pattern of moral condemnation that we saw in al-ShawkÄnÄ«âs views. And similarly it turns around with a notable âhoweverâ: An heir who feels excluded and who goes to the judge must be able to prove that the exclusion was âintended,â and this can only be proven if the founder has used certain words. By this âhoweverâ the answer also changes from a philosophical and moral tone and into one of legal language: âplaintiffâ
(muddaÊ¿Ä«), âevidenceâ (burhÄn), âwords of legal meaningâ (awqÄl dÄlla). The fatwÄ does not refer to which words would prove this intent, and thus invalidate the waqf or forcibly include the awlÄd al-banÄt.118 If this second part had not come after the âhowever,â the fatwÄ would follow those who claim that the exclusion is illegal, and this is the first time we see more âprocedural necessitiesâ mentioned. Would not the mere exclusion of awlÄd al-banÄt, as a fact in itself be enough? Does he mean that words like âman yantasibu ilayyaâ have to be found in the waqf document? Or does the muftÄ« actually mean that there are no such words that can âproveâ the intent? Does it mean that it is legal to exclude an heir from the waqf if this was not the primary intention of the founder, but merely a side effect? This fatwÄ would have been much more useful if the muftÄ« provided the exact words necessary to clarify the intent to exclude. Perhaps they were left out in order to leave the fatwÄ open for further specification at a later point in a time, if the question was not settled. It is not necessary to try to establish the exact meaning of the fatwÄ here. What is important is to see this as part of the background and an example of the legal situation in the early years of Imam YaḥyÄâs rule, when the fatwÄ was inserted into a section âuseful for the judgesâ in the first printed version of the Sharḥ al-azhÄr. The legal problem of the status of the awlÄd al-banÄt was clearly still there, and without a strong centralized court system, the question would in any case be left open to the discretion of the individual judges, thus producing a variety of legal practices. When Imam YaḥyÄ started to issue his decrees, this was one of the most important legal matters in which fiqh had to be codified into clear, coherent, applicable law.
10.2 The Decrees (IkhtiyÄrÄt ) of Imam YaḥyÄ
In the 1930s, Imam YaḥyÄ achieved stronger political control. In many rural areas women did not receive inheritance at all during al-ShawkÄnÄ«âs time, and this continued well into Imam YaḥyÄâs reign. The tribal areas of Lower ḤÄshid were the last areas where this practice was allowed; it was put to an end in 1932.119 Such an account is a very strong claim, but it is relevant as an example of how the imamâs law was extended only gradually into the rural tribal areas and how the need for law was portrayed.
Imam YaḥyÄâs decrees started as a list that was posted on the wall at the court of appeal. One example is the decree dated 23 JumÄdÄ l-ŪlÄ 1352 [3 September 1934]:
The two first ikhtiyÄrÄt of Imam YaḥyÄâs list (al-Ê¿AlÄ«mÄ«, al-TaqlÄ«diyya, 259).
The questions related to waṣīya and waqf are among the first rules of a list of twenty-eight.120 These two rules read:
-
[There shall be] no gift and no testament for some of the heirs without others, according to the ḥadÄ«th of NuÊ¿mÄn b. BashÄ«r121 and according to His, the exaltedâs, statement: âNo harm in testament from Godâ (ghayr muá¸Ärr waṣīya min AllÄh).122
-
[There shall be] no testament to an heir and no waqf, because of the condition of good intention and this is absent if there is deviance from âGodâs testamentâ and because the clear [underlying intention] is to exclude the females.
Haykel argues that this list was developed over time as the cases came in to the appeal court.123 If this is correct, then the fact that the waqf questions appear at the top of the list indicates their importance. Later, Imam YaḥyÄâs decrees were extended, versified, and commented upon (elaborated and explained) in a work called á¹¢irÄá¹ al-Ê¿ÄrifÄ«n by al-ShamÄḥī (1937).124 The decree is well noted in Messickâs article âTextual Properties,â125 thus I only give a brief summary. Further, Imam YaḥyÄâs decrees are also found as footnotes in al-TÄj al-mudhhab of al-Ê¿AnsÄ« (mainly on page 288).
The argumentation underpinning the rules, which are briefly indicated within each rule, are given in full in the á¹¢irÄá¹ al-Ê¿ÄrifÄ«n and partly in al-TÄj al-mudhhab. The style of argumentation is similar to those that restrict the family waqf by focusing on diverse ḥadÄ«ths and verses from the QurʾÄn, without offering clear analogy (qiyÄs) or explicitly explaining the link. It is the mere sum or cumulative weight of arguments that seem be authoritative.
The legal result of the combination of arguments is the following: âNo waqf to an heir.â This is the indirect result of a lack of pious intent in exclusion and because of the âharmâ that can be caused to heirs.126 Both arguments have been seen before in different variants. However, there are exceptions: If the waqf does not favour some specific heirs, it can be made for the heirs. Wives, if they are mothers of the children who are beneficiaries, can be excluded. Needy and sick individuals can be preferred. The waqf is restricted to one-third, if it was established by a commoner. To put it positively: waqf for heirs is allowed if it follows the divisions of the inheritance rules, or needy individuals among the heirs can be preferred, and wives, if they are mothers of children who are beneficiaries, can be excluded if they are âsufficiently compensated.â127 This new law makes it easy for judges to invalidate the most blatant exclusions, but it also allows them to look quite specifically at each case and perhaps even treat each case differently. After all, the power constellations inside an old family waqf belonging to a major, rich family is not something that a local judge can easily change; it is easier to prevent âcommonersâ from making new exclusionary family waqfs. In any case it would be difficult to establish a new family waqf excluding the awlÄd al-banÄt without great care and the provision of compensation (e.g., to the mothers of the exogamously married daughters). The balance between the intergenerational transfer of wealth via waqf versus inheritance shifted in favour of greater respect for the inheritance rules.
10.3 al-TÄj al-Mudhhab : Codification by Imam YaḥyÄ or by the ZaydÄ« Madhhab ?
During Imam YaḥyÄâs lifetime he ordered the Sharḥ al-azhÄr to be re-written in a simpler style and include only the chosen views of the ZaydÄ« madhhab and his own decrees. This was done to ease the training of and use by judges. The result was called al-TÄj al-mudhhab [The gilded crown] and was printed in stages between 1938 and 1947. In al-TÄj al-mudhhab there is no mention that a commoner cannot make a waqf of more than one-third, nor that the awlÄd al-banÄt must be included, except on page 288 n. 1, where Imam YaḥyÄâs ikhtiyÄr on this question is stated. Al-TÄj al-mudhhab is thus very âloyalâ to the validated (tadhhÄ«b, taqrÄ«r) Sharḥ al-azhÄr and its footnotes, and is thus more a condensed version of the Sharḥ al-azhÄr than it is a work of scholarly fiqh.
As mentioned earlier in this chapter, the issue of the balance between the inheritance rules, the waṣīya, and the waqf is not discussed in the matn, nor in the sharḥ in the chapter on waqf of the KitÄb al-AzhÄr and the Sharḥ al-azhÄr. Discussions and validated rules are found in several glosses and footnotes dispersed in the chapter, but mostly under the rulings of definitions of âspecified beneficiariesâ (i.e., private or family waqfs). In al-TÄj al-mudhhab these footnotes are faithfully re-quoted in the main text, as ânotes,â or âtopicsâ (masʾala, farÊ¿). The references to the original sources of authority, which are important in the fiqh discourse, have been removed and these footnotes now appear as a part of a univocal text. These footnotes, which had been added gradually since Ibn MiftÄḥâs time, existed parallel to the decrees and fatwÄs discussed above. Once Imam YaḥyÄ issued his ikhtiyÄrÄt, most of these footnotes lost their legal power.
There are two notes in al-TÄj al-mudhhab that are directly relevant here and that are also given in the Sharḥ al-azhÄr (2003 edition, 8:297). The first one is very close in wording to the fatwÄ by Ê¿Abd al-JabbÄr quoted in the introduction of the Sharḥ al-azhÄr (1913â14 edition), as mentioned above:
Topic (farÊ¿): Waqf for the children (awlÄd) and the childrenâs children with a âthenâ (fa) or a âthereafterâ (thumma) or with an âandâ (wa) is a valid wording, or âgeneration after generationâ (baá¹n baÊ¿d baá¹n), or similarly. And the awlÄd al-banÄt are included in that since they are children of the children, but not if the founder states âfor the children of the male descent lineâ (Ê¿alÄ awlÄd á¹£ulbihi); if so [i.e., if he does that], the awlÄd al-banÄt are not included since they are of someone elseâs male descent line (min á¹£ulb ghayrihi), and the custom speaks for their exclusion (fa-iqtaá¸Ä l-Ê¿urf khurÅ«juhum).128
This note explains the position of the HÄdawÄ«-ZaydÄ« madhhab quite concisely. There are various wordings that include the awlÄd al-banÄt and various wordings that exclude them. And it is fully valid to exclude them. Furthermore, âcustomâ is a central conceptual source of validity both in claiming that there is precedence for exclusion, and as a way to establish the legal intention of a word as an act of speech. The second note admits that exclusion can constitute a loss for those involved in terms of inheritance, but that this is permissible if it is otherwise âcompensatedâ:
Topic (masÊ¿ala): As for the rule (al-ḥukm) of excluding daughters and their children from the waqf (al-banÄt wa-awlÄduhunna): If they are given a compensation for the revenue in another way, such as [support] during visits [on] holidays (ziyÄra fÄ« l-aÊ¿yÄd) and similarly for the married women (muzawwajÄt) and otherwise sufficient support (kifÄya) for the non-married [women] (ghayr al-muzawwajÄt),129 then this is valid, and this does not contradict pious intent (qurba).130
We can see that the project of simply âcodifyingâ the strongest views found in the Sharḥ al-azhÄr keeps its stated goal; the main text of al-TÄj al-mudhhab is loyal to the Sharḥ al-azhÄr, not to Imam YaḥyÄâs ikhtiyÄrÄt. This is an attempt to separate the âZaydÄ«â codification from the codification of Imam YaḥyÄ. One single exception to this is found where ḥurmÄn wÄrith131 is added as something that could invalidate the good intent, and thereby the waqf. Otherwise, the new decrees from Imam YaḥyÄ are only given as footnotes under the text (in al-TÄj al-mudhhab, there are few other footnotes).
11 Imam Aḥmadâs Decrees
Imam Aḥmadâs decree does not mention family waqf, or the topic of exclusion of heirs or the awlÄd al-banÄt explicitly, and he only mentions the âno testamentation to an heir,â the issue of âequality between the children,â and âno damage,â but only in relation to the waṣīya, not explicitly in relation to the waqf.
As for the work TaysÄ«r al-marÄm, it seems in general to be very close to HÄdawÄ«-ZaydÄ« rulings and true to the Sharḥ al-azhÄr and not to the imamic decree. Article 695 states that the founder may exclude the awlÄd al-banÄt.132 Würth remarks that it is unclear to what extent the TaysÄ«r was actually used.133 The fact that exclusion of the awlÄd al-banÄt was rendered valid supports the argument that the TaysÄ«r was not intended to be used even if it has the form of codification.
12 Republican Waqf Laws on the Matter
12.1 The Republican Waqf Decrees of 1971
Under and immediately after the civil war, the judiciary remained unchanged and ZaydÄ« fiqh in combination with the decrees of Imam YaḥyÄ and Imam Aḥmad continued. Most of the judges in Lower Yemen had been educated under their regime, many of them in al-Madrasa al-Ê¿Ilmiyya in Sanaa. As mentioned in chapter 3, some early decrees ordered that a ministry of awqÄf be organised, but these did not address the legal institution of waqf as such, or any legal matters between private parties. It was in 1971 that the ministry of justice first issued a decree with sixty-eight rules that the judges of the country were obliged to follow. These remained in effect until the first waqf law was issued in 1976. The scholar and state muftÄ« Muḥammad b. IsmÄÊ¿Ä«l al-Ê¿AmrÄnÄ« called them the ikhtiyÄrÄt of the ministry of justice, as if to avoid any sense that there was a fundamental break with the imamic sharÊ¿Ä« past: the republican state simply took over the role the imam had. The list was published in the Majallat al-buḥūth wa-l-aḥkÄm al-qaá¸Äʾiyya al-Yamaniyya [Gazette of research and Yemeni legal rulings] number 1, 1980 and is also published in al-Ê¿AmrÄnÄ«âs NizÄm al-qaá¸Äʾ fÄ« l-IslÄm.134 Rules 45â48 concern waqf. Note how the language, structure and style is changed into something between fiqh and modern law:
45. Waqf that contains exclusion, or that favours some of the heirs is invalid, because of incompatibility with the pious intent (qurba). The following cases are exceptions: (a) If the heirs approve, without any form of compulsion and with the full knowledge of their loss, and that this approval can later not be withdrawn. (b) If there is a personal reason, such as the beneficiary being blind or disabled or similarly, after that [the beneficiaryâs death] the waqf reverts to the heirs.135 (c) If there has been a previous ruling [stating the validity of the waqf] by a competent judge, since a ruling can never be contradicted,136 or, if one hundred years have passed and no one has protested.
46. Whoever makes a waqf for his children or heirs as a specified, personal waqf (waqf al-Ê¿ayn), or a waqf of the waqf al-jins type,137 the share of whoever dies among them goes to his heirs, not to those of his generation until they are all extinct; in this there is [a form of] exclusion, and because the order of that description is not commonly138 intended by many of the founders.
47. Waqf for the descendants (Ê¿alÄ l-dhurriyya) and for the children of oneâs relatives (awlÄd al-aqÄrib) and similarly (wa-naḥwa dhÄlika), is to be considered in light of the meaning the words have according to the customary usage in the area of the founder, unless he was a learned jurist (faqÄ«h Ê¿Älim), since it is not correct to assume another beneficiary [other] than the founder intended, even if the words in themselves are clear. In the most common custom, the term âchildâ (walad) is not used for other than males, the same is the case in the term âdescendantsâ (dhurriyya), which means whoever belongs to the male descent line (awlÄd al-á¹£ulb). Waqfs containing these details can only be valid if there exists a permission from the ministry of awqÄf,139 or if there was previously issued a ruling of the validity of the waqf, or if the number of years, as mentioned in article 40(c) has passed.
48. If the beneficiary of a waqf ceases to exist (idhÄ inqaá¹aÊ¿a maá¹£rif al-waqf), the new beneficiary is to be of a similar purpose (mÄ yumÄthil al-mubarrira al-mawqÅ«f Ê¿alayhÄ), and it shall not return to the founder and his heirs, since the waqf140 has exited from the realm of private property.141
This decree is an important link in the transition between the legal practices of the imamate and that of the republic. The waqf law further regulating private waqf practices did not come until 1976 and does not diverge much from the basic content of the decree.
The restriction to one-third is not mentioned in the 1971 decree in the rules related to waqf. However it is indeed treated under waá¹£ÄyÄ in the same decree, in article 64, under the inclusive concept âcharitable dispositionsâ (al-taá¹£arrufÄt al-tabarruÊ¿iyya) which logically also includes waqf (that is, only those dispositions made by âcommonersâ). The reason this is not mentioned under the waqf section of the decree becomes more understandable if we see the period of the decree as one in which family waqfs were seldom established anymore, and the issues at stake were mainly related to older, already existing family waqfs. In this decree the awlÄd al-banÄt can be excluded, but only from old existing waqfs. In new waqfs, such a practice is forbidden without ministry approval, the legal practice of which is little known. In 1971, when this decree was made, the âoldâ waqfs were mainly those that for various reasons were not privatized or confiscated by the state during the period of Imam YaḥyÄ and Imam Aḥmad.142
12.2 The 1976 Waqf Law
The 1976 waqf law143 is the first republican, exclusive waqf law, that is, a single law code dealing only with waqf. The structure of the law follows the Sharḥ al-azhÄr144 to a large extent. The matter of family waqf is in two sections near the section in the Sharḥ al-azhÄr structure that deals with the division of benefits between beneficiaries in the family of the founder,145 but several articles relevant for this chapter can also be found in other places in the law:
Article 14: A waqf is invalid if made with the intention to escape from a debt (dayn) or pre-emption (shufʿa) and legal ruse (ḥīla), such as circumventing the inheritance rules.
This article refers to a specific debate in the Sharḥ al-azhÄr146 which is somehow peculiar; it concerns whether or not pious intention or absence of such can be legally established in acts such as in making a waqf in order to hide assets from a creditor, etc. The argument in favour claims that even though the act is outwardly reprehensible, the inner intent, as in the inner feeling of the founder, may still be one of piety. This debate in the Sharḥ al-azhÄr probably arose from the argument that if one cannot know the inner intent with certainty, then no waqfs can be legally invalidated because of lack of piety. This seems to have been the position of the madhhab (though with modifications)147 and this article in the law takes a clear stand against this position by creating a fundament which is necessary for the other articles that restrict the family waqf. The article also mentions other âlegal rusesâ and âcircumventing the inheritance rules.â The article is included in the 1976 law in order to set aside any confusion of authority and validity and to set up a link and division of function between inheritance and waqf based on the concept of qurba. The article is a very complicated and fiqh-related way of stating that waqf is built on qurba and that qurba is the very fundament of validity in waqf, and that a waqf made with negative consequences cannot stand, even if the inner intention is good.
Article 15: It is invalid for a person to make a waqf of more than one-third of his property if he has heirs at the time of the [establishment of the] waqf.
The restriction to one-third, even when making a public waqf, is commented upon further below, but here in article 15 it is spelled out explicitly. Article 30 continues in line with article 14:
Article 30: All texts related to waqf (nuṣūṣ al-waqf kullahÄ) are to be followed, except those that contradict a pious purpose (illÄ fÄ«-mÄ yunÄfÄ« l-qurba).
By âtextsâ the article probably refers to waqf documents or other administrative legal documents, but it could also include fiqh texts. The rule effectively relativizes all legal documents and laws and resets the new main criteria of validity to pious intention, as does article 14. Pious intention is a self-validating term and difficult to argue against. Yet its vagueness makes such an article little more than a doctrinal statement, the waqf law self-validating itself and creating a sharÊ¿Ä« image, rather than simply stating that âact X is illegal.â It actually says that, if combined with article 15, waqf documents or other legal documents, even those valid under previous jurisdictions, are no longer automatically valid if they contradict the new law, as in matters of the exclusion of heirs. The main articles dealing with family waqf then follow:
Article 31: Waqf for oneâs self, or for one or more heirs, or for the descendants (al-dhurriyya) or for the children, or the childrenâs children is invalid (bÄá¹il), unless those mentioned are included as part of a general [public, charitable] definition specified by the founder, if so any of these have the same rights as others, or if the beneficiary is disabled (Ê¿Äjiz) such as blind or paralyzed (ashall) and does not have what he needs, and in this case, if the condition improves or the beneficiary dies, then the waqf is considered cut off from its beneficiaries148 and will follow article 28149 of this law.
The same is stated about the waṣīya from the personal status law: a waṣīya in favour of heirs is invalid, however, for a family member in dire need due to disability it is legal. This article effectively prohibits the new formation of family waqfs and the only opening remaining is various forms of charity within the family.
Article 44: The old family waqfs whose stipulations are not in accordance with the stipulations in this law, if a judgement was issued in favour of their validity, or if the heirs agreed upon them, or if forty years passed, are to remain as they are, and are not to be invalidated unless the beneficiaries wish to, or the majority among them, according to their needs regarding sustenance. The request [for invalidation] is to be presented to the court â¦
Articles 45 and 46 regulate how a family waqf is to be divided between the heirs in case of privatization, dissolution or invalidation of the waqf. In practice, this means the waqfs that âsurvivedâ the period of Imam YaḥyÄ and Imam Aḥmad.
A new waqf law was passed in 1992, however, with regard to the articles above, it is more or less the same as the 1976 law; the numbers of the articles changed (the numbers shifted up, i.e., no. 6 became no. 8). There is only one major legally oriented decree after this waqf, law called âThe waqf of lease regulationsâ (lÄʾiḥat tanáºÄ«m ijrÄʾÄt al-taʾjÄ«r â¦),150 republican decree number 99 of 1996. It does not mention the issue of family waqf at all.
12.3 The Arguments Behind the Restriction of Waqf to One-Third
Al-WaáºáºÄf and al-QirshÄ« are university professors who have written student textbooks on waqf law and teach at the Faculty of SharÄ«Ê¿a and Law at the University of Sanaa. Their views, commentaries, and arguments are being taught to students of law today. Waqf law is part of the curriculum for the bachelorâs degree; once students graduate with this degree they are given the title of lawyer (muḥÄmÄ«). The following is an analysis of how âthe restriction to one-thirdâ in waqf is presented in these textbooks.
The restriction of making a waqf of only one-third of oneâs property is interesting as it represents one of the borders of validity of waqf, both related to family waqf and to public waqf and the restriction of a waqf to one-third of oneâs property follows closely the debate over exclusion of the awlÄd al-banÄt. This restriction and the arguments behind it are especially relevant because they support the argument of this chapter, that the different models of intergenerational transfer of wealth are, in practice, strongly interrelated in codification and in everyday knowledge; this is particularly true in this patrilineal agricultural society. It relates to the perceived rights of the heirs in the property of their father, even before his death.
With regard to the family waqf, we have seen that in the HÄdawÄ«-ZaydÄ« tradition, waqf is restricted to one-third because of its close relationship to the waṣīya. Interestingly, no one explicitly refers to the HÄdawÄ« tradition as a source for this restriction, even if we look at the debate from the time of Imam YaḥyÄ until today. In addition, no one involved in the debate claims that it is a direct qiyÄs from the waṣīya. Imam YaḥyÄ restricted it for the âcommonersâ only, since they âdo not know the meanings of the legal termsâ;151 he thus argued that commoners actually mean waṣīya152 when they make waqfs, so he ruled that all charitable dispositions during oneâs lifetime should be regarded as waṣīya and that therefore they are restricted to one-third. This is also found in the decrees of 1971.153 The waqf law of 1976, that is, article 17 of the 1992 law, does not provide any additional arguments in its favour, but simply states the norm straightforwardly:
Article 17. It is invalid for a person to make a waqf of more than one-third of his property if he has heirs at the time of the waqf.154
Al-QirshÄ«âs comment is that the only source for this restriction is the qiyÄs from the waṣīya:
The clarification (al-bayÄn): Yes, and this is a qiyÄs of the waṣīya, as found in the ḥadÄ«th by SaÊ¿d b. AbÄ« WaqqÄá¹£ âa third and a third is muchâ¦.â155
Al-WaáºáºÄf156 has a longer commentary than al-QirshÄ«. He starts by stating that âA majority (aghlab) of the jurists in Islam made the restriction to one-third in waqf.â157 He does not mention who and simply overlooks the whole ZaydÄ« tradition we have followed in this chapter. Then, to make his argument, he includes more ḥadÄ«ths than al-QirshÄ«. He begins with a ḥadÄ«th that focuses on á¹£adaqa and in the footnotes he provides the many authoritative sources of the ḥadÄ«th: âVerily God made for you, [to decide over] one-third of your property at your death, in order to make this an increase in your good deeds.â158 This is yet another ḥadÄ«th that deals with the period shortly before death (Ê¿inda wafatikum), that is, it either looks like a waṣīya or as al-WaáºáºÄf mentions, it relates to the so-called âdeath sickness,â in which all dispositions are to be restricted like the waṣīya. But the ḥadÄ«th alone does not âproveâ that its restriction should also extend to the concept of waqf, or to other types of charity or dispositions during oneâs lifetime. Al-WaáºáºÄf does not mention these counter arguments (i.e., that this ḥadÄ«th only refers to issues related to âdeath sicknessâ or issues related to the waṣīya, and that these are not related to waqfs).
Calling this a qiyÄs is a way of using the term qiyÄs as if it, in itself, has some sort of validity. The term qiyÄs is often mentioned in textbooks as âone of the sources of Islamic lawâ and in uṣūl works there are discussions over different types of qiyÄs (strong, weak, etc.), and the criteria of what constitutes a valid qiyÄs. But in al-WaáºáºÄfâs modern law textbook it is used to prove that the rule in question âis valid,â simply by invoking the term qiyÄs. This is done instead of encouraging the students to think critically and question the relationship between that ḥadÄ«th and the rule. Instead of looking at the potential criticisms of article 17, al-WaáºáºÄf instead focuses on the strength of that specific ḥadÄ«th and in the footnotes he provides references to several ḥadÄ«th collectors and ḥadÄ«th collections, as if the ḥadÄ«th collectors and collections themselves were fundaments of validity. My point is that the references to establish the validity of the rule do not extend back to a âclear text.â Rather, we as analysts, anthropologists, and historians must see that the references quite often simply end early on in the chain, in certain concepts of authority and criteria of validity that frame the discourse. The sources and references are not as systematic as is claimed or assumed by the informants.159
Al-ShawkÄnÄ« and others among the hadÄ«th-oriented scholars referred to many of the same ḥadÄ«ths as al-WaáºáºÄf does, and used similar methods of opaque inferences, but they never used or invoked the term qiyÄs in any of the rules analysed in this chapter. Authority and validity are âinferredâ and the criteria of validity in inference shift according to context. Here, we can differentiate between a high-level fiqh debate (al-ShawkÄnÄ«), a codification of Imam YaḥyÄ, and a present-day student textbook commentary. When looking at these three different cases and the use of the word qiyÄs, we see that the first two share the criteria that the term qiyÄs should not be used, since the nature of the inference is not clear enough to be termed a qiyÄs. The modern-day university professors, who are educating todayâs lawyers, see this differently.
When a person has no potential heirs, he may give all his property as waqf. According to the 1976 waqf law, the restriction is only in the âpresence of heirs.â So again, the rationale in this article is related to the right of the heirs to the property of their living father. This is a clear legal right in the waṣīya, but it all comes down to the issues mentioned in the introduction, that a waqf produces just as many effects for the heirs in the future as a waṣīya does if the object is land and where the right to use the land is the rationale. And although the primary function of the waqf as a legal concept is as a carrier for charity, the borders becomes blurred when that charity is directed towards the heirs of the founder.
As for al-WaáºáºÄfâs comment on the invalidity of waqf in favour of heirs as found in articles 32 and 33 in the waqf law, his treatment is quite long and ventures even further into the ḥadÄ«th sciences. This is in many ways indicative of many present-day law debates in Yemen. There is a shift to a more ḥadÄ«th-based sharÄ«Ê¿a at the expense of the established fiqh from the âoldâ law schools. This new ḥadÄ«th-oriented sharÄ«Ê¿a seems to be more populist and the demands for logic and coherence are not as strong as are those found in the established law schools. Al-WaáºáºÄf, who seeks to validate the position of the Yemeni law in articles 32 and 33, interestingly also quotes opposing arguments, as if in a scholarly fiqh debate, in which the introduction and discussion of opposing arguments is a sign of quality. However, the opposing argument al-WaáºáºÄf quotes also takes the form of a ḥadÄ«th, one that states that waqf was made for heirs also during the time of the Prophet, one of them being that Ê¿UthmÄn made a waqf for his son IbÄn. This ḥadÄ«th has not been mentioned in the debate in this chapter. It is attributed to a certain ḥadÄ«th collector al-WÄqiÊ¿Ä«. âHoweverâ al-WaáºáºÄf says, âal-WÄqiÊ¿Ä« is not trustworthy,â âAḥmad states that he is a liar who alters ḥadÄ«thsâ (kadhdhÄb yuqallibu al-aḥÄdith) and âal-BukhÄrÄ«, AbÅ« ḤÄtim, and al-NisÄʾī state that he fakes the ḥadÄ«ths.â160 Al-WaáºáºÄf wanted to show a dialogue, but did not choose a counter argument from the ZaydÄ« tradition.
The whole shift in discourse is quite noticeable: it has shifted from a well-established and stable fiqh discourse over centuries, a discourse that takes into account legal problems in the real world, into a discourse about ḥadīths and ḥadīth collections, one that is rather detached from actual legal problems.
As for the exclusion of the awlÄd al-banÄt, this issue becomes irrelevant in the debate hereafter since the modern waqf law (article 32 and 33) prohibit waqf for all heirs, not only waqf where exclusion is found.
Al-ShawkÄnÄ« explicitly mentions the awlÄd al-banÄt, but talks about the exclusion of heirs in general, and most of those who claim that the exclusion of the awlÄd al-banÄt is invalid argue to include all heirs, not only the group of awlÄd al-banÄt. The term awlÄd al-banÄt is a technical legal term that belongs to a patrilineal agricultural society where the established legal practices are designed to circumvent the effects of the inheritance rules, while the term âheirsâ is much more sharÊ¿Ä« in the sense that it is more easily found in the QurʾÄn and the Sunna and neo-SunnÄ«s and SalafÄ«s can more easily argue in favour of it. Claiming that the discourse is about âheirsâ and âequalityâ and hence âno damageâ (lÄ á¸irÄr), rather than âcustomâ and awlÄd al-banÄt is a way of drawing upon more readily available arguments in the context of an increasingly modern and urbanized society.
A final remark on the restriction to one-third in waqf is that this restriction was also implemented (more or less the same way) in the Egyptian waqf law of 1946 (articles 23 and 24). This was upheld in law number 29 of 1960, even after the non-charitable waqf was abolished.161 Thus it is possible that Egypt was the inspiration for the codification of this matter.
12.4 The Gift (Hiba ) in the Present Law
A few notes on the gift (hiba) should also be made. If we return to the table in figure 9 âthe relationship between waqf and waṣīya in a schematic formâ at the beginning of this chapter, we might expect to find a loophole in the concept of the gift (hiba) during oneâs lifetime. Could the founder simply use a gift instead of waqf if he wanted to give his land to some, but not all of his children? There is no doubt that in classical SunnÄ« fiqh, one can give a gift during oneâs lifetime of all oneâs property and also to an heir, although favouring one child over others is considered morally wrong.162 However, this does not seem to be as straightforward in ZaydÄ« fiqh. According to the Sharḥ al-azhÄr, a gift to an heir is only valid for one-third of oneâs property. The matn of Ibn MiftÄḥ declares it reprehensible (makrÅ«h), but legally valid.163
The muftÄ« of Zabid, Aḥmad b. DÄwÅ«d b. Aḥmad b. Muḥammad al-Baá¹á¹Äḥ al-Ahdal, gave the following fatwÄ, some time shortly before 1975:
The question: Is it valid to give a gift to the son of oneâs son in the presence of heirs? The answer: â⦠The rules concerning a gift to an heirâs heir follow the same rule as a gift to an heir; it is invalid, unless the rest of the heirs approve.â Aḥmad DÄwÅ«d Aḥmad al-Baá¹á¹Äḥ al-Ahdal.164
Article 183 in the Yemeni Law of Personal Status (section on hiba) states that:
Article 183. Equality (musÄwÄt) is compulsory in gifts and in similar dispositions, between the children and between the heirs according to the demands of the sharÄ«Ê¿a.
Article 187. A gift for an heir or his heir during [oneâs] lifetime must follow the rules of the waṣīya, unless the receiver (al-mawhÅ«b lahu) can consume the gift when the giver is alive, or following article 183.165
The reference to âconsumption,â would exclude land. Thus a gift is not unrestricted in the law. When informants today claim that a person can only dispose of one-third of his property, it is not only a âperceptionâ of local waqf knowledge; it actually is the law.
12.5 The Nadhr and the Recitation Waqf
I came across several waqf documents in Rayma and Zabid in which the waqf/waṣīya was given by means of a conditional disposition, a so-called nadhr.166 The nadhr is a separate concept and chapter in fiqh books, and in practice we would expect it to be a conditional waqf, as in, âI promise to make so-and-so a waqf/waṣīya if such-and-such happens.â However, it seems to be a sort of transaction similar to a waqf/waṣīya since they overlap in practice, especially if the object at issue is land, as mentioned at the beginning of this chapter. When Imam YaḥyÄ wanted to regulate all these intergenerational transfer practices, he did so in the rule that restricts dispositions during oneâs lifetime to heirs among the commoners (Ê¿awwÄm). In his decree he included a restriction of the nadhr in the very same rule as the restriction on the family waqf, as if they were part of the same legal phenomenon.167 The informants who showed me the nadhr documents did not separate them conceptually from the concepts of waqf and waṣīya, and they explicitly pointed out that the purpose of all these concepts was to circumvent the inheritance rules and therefore they could only be valid within one-third of the property. Most non-scholarly informants seemed to have the perception that a person is not free to do what he wants with his property, even during his lifetime.
Why use the nadhr? The answer is not entirely clear. Since Rayma is a ShÄfiÊ¿Ä« area, one might expect the possibility of a full family waqf, even an exclusionary one, at least before the laws of Imam YaḥyÄ. The explanation may lie in the fact that these areas were partly under ZaydÄ« jurisdiction and one can only speculate over the influence of the ZaydÄ« judiciary on the local ShÄfiÊ¿Ä« practices of intergenerational transfer of property.168 If waqf or waṣīya was invalid to heirs, perhaps the nadhr became a locally used legal ruse. The few nadhr documents I have seen state that the transaction is to take immediate effect, which means that it is more like a gift than a waṣīya. As pointed out by informants in Rayma,169 such a transaction is only valid to an heirâs heir, not a direct heir, which is also a normal SunnÄ« interpretation of the waṣīya.170 In this book I do not address the nadhr furtherâI have included it here is to show how problems relating to the freedom of disposition are larger than the legal categories of waqf versus inheritance.171
Another type of waqf that also falls between categories is the recitation waqf (waqf daris, qirÄʾa, tilÄwa, muqaddimÄt). This is a waqf in which the founder stipulates that the income of the waqf should go toward one who recites the QurʾÄn for his own soul or someone elseâs, or for QurʾÄn recitation only (muá¹laq). Usually, this work is done by the mutawallÄ« himself. If the salary is significantly higher than the effort of the recitation, he also in effect becomes a semi-beneficiary, and the waqf has an exclusionary potential.172 This is also a reason one of the ikhtiyÄrÄt of Imam YaḥyÄ explicitly targets such a waqf. On the handwritten list of ikhtiyÄrÄt, number 20 states: âWaqf al-qirÄʾa for an heir is valid, not for consolation of the souls (lÄ li-l-taysÄ«r).â173 Interestingly, this type of waqf is not made invalid, the decree only specifies the correct religious form of recitation. However, we know that later, restrictions were added to this type of waqf limiting the âsalaryâ to be proportionate with the actual effort involved.174 Examples of such waqfs are elaborated by both Mundy and Messick.175 Perhaps this type of waqf became more popular when the regular family waqf was increasingly restricted under Imam YaḥyÄ.
12.6 Summary of the Zaydī Trajectory
Attempts to restrict some of the most liberal uses of waqfs can be seen when practices develop because âpeople on the groundâ want to use the sharÄ«Ê¿a as a tool for their own agendas. The knowledge of waqf is highly specialized on the fiqh level; a comprehension of it requires years of education. This does not prevent âcommonersâ from using the institution for their purposes. On the fiqh level we can easily see that the knowledge needed to engage in this debate is situated in specific traditions, practices, in books, and texts. At the level of codification, which is not easily separated from that of the fiqh, if in fact it can be separated, we see that actors in academic fiqh (fuqahÄʾ, Ê¿ulamÄʾ) seek to help the rulers to legitimize whatever rule they choose and that the rulers must support their laws with fiqh arguments. If we look at the historical trajectory, we can see that SunnÄ« ḥadÄ«ths were increasingly used after the classical ZaydÄ« period and with the onset of the QÄsimÄ« dynasty. Imam YaḥyÄâs decrees and restrictions on family waqf were not new in the history of codification, but many of the arguments were recycled from those of the commentary on the decrees of al-Mutawakkil IsmÄÊ¿Ä«l. Those wishing to restrict the family waqf tend to use ḥadÄ«ths to do this, but mainly after the classical ZaydÄ« period. Those in favour of allowing an exclusionary family waqf refer primarily to the views and actions of previous imams.
As we see from the debate, many of the arguments and clusters of arguments are reused over time. Following is a short summary of the history of codification in the matter of the exclusion of heirs from waqfs:
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Around 900 CE, FOR the exclusion of heirs: al-HÄdÄ« introduced Zaydism and allowed the tribes to make waqfs for the male descent line only, however this was only allowable for one-third of the property. The remaining two-thirds, even if waqf, must follow the division of the inheritance rules.
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Around 1200, AGAINST: al-Manṣūr disagreed with al-HÄdÄ« and said that the exclusion of awlÄd al-banÄt is reason enough to say that there is no good intention and therefore he issued a fatwÄ that such a waqfs are invalid, at least formation of new ones. Old ones are allowed to remain.
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Around 1410 and 1450 until today, FOR: Ibn al-Murtaá¸Ä and Ibn MiftÄḥ wrote the much used Sharḥ al-azhÄr and the community of ZaydÄ« scholars later added validation signs over those views they agreed upon in the fiqh. Family waqfs follow the HÄdawÄ« waqf model. Good intentions are not easily measurable and only God can know if the founder is pious; thus, excluding heirs may be disliked and even reprehensible, but it is not contractually invalid.
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Around 1475 FOR: Imam Ê¿Izz al-DÄ«n confirmed that this is the practice on the ground, and he accepted it even though he disliked it.
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Around 1645, AGAINST: The powerful Imam al-Mutawakkil IsmÄÊ¿Ä«l completely rejected any transaction that left some of the heirs with less inheritance, hereunder waqf. He based his views on several SunnÄ« ḥadÄ«ths in a supportive argument (Sharḥ al-masÄʾil al-murtaá¸Ät). The decree was addressed to the judges of Yemen.
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In 1774, FOR: al-MahdÄ« l-Ê¿AbbÄs took the position of Imam Ê¿Izz al-DÄ«n and the HÄdawÄ«-ZaydÄ« madhhab in a decree form addressed to the judges of Yemen.
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Around 1795, AGAINST: al-ShawkÄnÄ« became chief qÄá¸Ä« and remained so for forty years. He was critical of the exclusionary form of family waqf and stated that the intergenerational transfer of wealth should follow inheritance rules. He polemically attacked ZaydÄ« authority and used SunnÄ« ḥadÄ«ths, but changes in court practice were not yet documented.
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Around 1915 FOR: The Sharḥ al-azhÄr was printed and the burden of evidence was still on those who had been excluded from the waqf. Was it up to the local judges to interpret the details of wording? Imam YaḥyÄ took over the judiciary from the Ottomans in 1911 and aimed to establish a court system for the country.
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From 1920 to 1930, AGAINST: Imam YaḥyÄ gradually issued his decrees: There is no good intention in excluding heirs or females. [There should be] no waqf to heirs, contrary to the ZaydÄ« madhhab. A commoner (Ê¿ÄmmÄ«) cannot make a waqf without the restriction of the waṣīya âbecause they do not know what they do.â Recitation waqfs for heirs were still valid and many old family waqfs continued.
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From 1940 to the 1950s: Attempts at ZaydÄ« codification in the al-TÄj al-mudhhab and the TaysÄ«r al-marÄm both take the stand of the Sharḥ al-azhÄr and allow the exclusion [of awlÄd al-banÄt]. Al-TÄj al-mudhhab does, however, quote the views of Imam YaḥyÄ in the footnotes.
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Around 1950: Imam Aḥmad follows his father and limits the formation of new family waqfs, especially exclusionary ones, but old family waqfs are allowed to exist.
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In the 1970s. New republican waqf laws allow for waqfs to heirs only if the waqf is pious and charitable. Old family waqfs remain in certain cases. In effect, these laws are very much a continuation of the laws formulated by Imam YaḥyÄ. The restriction of one-third is extended to include charitable waqfs.
These views reflect only the level of codification, and regional variations and actual court practice could not be looked into here. As we can see from the summary, there is a tendency for the exclusionary form of family waqf to become more restricted over time, especially over the last hundred years. This could be related to a general âSunnificationâ of Zaydism, at least state-sponsored Zaydism centred around Sanaa.
13 Exclusion of the AwlÄd al-BanÄt in Other Law Schools
It is not my intention to make a systematic comparison with other law schools and legal orders, but a few remarks should be noted, since debates in the wider Islamicate world might have affected the Zaydī debate.
The important Palestinian ḤanafÄ« muftÄ« Khayr al-DÄ«n al-RamlÄ« (d. 1671) discussed a question about the term âchildren and childrenâs childrenâ in the wording of a family waqf: Did it include the females? His answer was that AbÅ« ḤanÄ«fa176 said no, but that many later scholars said that the most correct view was that females were included. Al-RamlÄ« then stated that this specific question was famous and well-known, one in which the jurists were divided among themselves and that this question belonged to the questions of dispute (ikhtilÄf) and ijtihÄd and therefore every judge must make his own decision in the matter; after that no one can oppose his verdict in this.177
Muḥammad AbÅ« Zahra (d. 1974), a well-known Egyptian scholar, wrote MuḥÄá¸arÄt fÄ« l-waqf on the topic of comparative waqf fiqh; in it he addresses the status of the awlÄd al-banÄt. He states that there is disagreement among the scholars on this issue, but that the majority of ḤanafÄ«s allowed for the exclusion of the awlÄd al-banÄt. Further, he mentions that additional wording can be added in the establishment of a waqf, for example, âwhomever belongs to the name of the family or the descent lineâ (man yantasibu ilayhi) as a possible exclusionary phrase, despite the fact that the term âchildrenâ originally includes the awlÄd al-banÄt. He also refers to the argument that the meaning of any of these words is in any case dependent on local custom (tadillu Ê¿urfan).178
Wahba Muá¹£á¹afÄ l-ZuḥaylÄ« is a well-known Syrian fiqh scholar. In his authoritative, modern comparative fiqh work, al-Fiqh al-IslÄmÄ« wa-adillatuhu, he is very brief in his treatment of the topic. According to him there is disagreement over the term awlÄd (children), but not the terms dhurriyya, nasl, and Ê¿aqab, which are all, by consensus, terms that exclude the awlÄd al-banÄt.179 (This position is much in line with the footnotes of the Sharḥ al-azhÄr.) Although al-ZuḥaylÄ«âs project is modern, comparative fiqh, its concise character implies fewer details. The discussions that took place within the ḤanafÄ« and ShÄfÄ«Ê¿Ä« schools do not appear in his treatment of this specific rule.180 If we look a bit deeper into the ḤanafÄ« debates, the Syrian ḤanafÄ« Ibn Ê¿ÄbidÄ«n (d. 1836) is a good starting point. In his commentary Radd al-mukhtÄr on the Durr al-mukhtÄr he is also very clear about the disagreement in the fiqh and states that both views (and many others in between) are found among ḤanafÄ« authorities:
Section regarding the inclusion of the awlÄd al-banÄt.
⦠Note that it is mentioned that the preferred view in the law school (áºÄhir al-riwÄya), which is also stated in fatwÄs (al-muftÄ bihi), is that the awlÄd al-banÄt are not includedâ¦. However, al-KhaṣṣÄf stated that they are included ⦠al-RÄzÄ« stated that if the founder used the word âmale childâ (walad) in singular, instead of the plural (awlÄd), the wording is exclusionary â¦181
He goes on to cite a long list of ḤanafÄ« authorities, fiqh works, and fatwÄ collections (including that of the above-mentioned Palestinian muftÄ« Khayr al-DÄ«n al-RamlÄ«), and he cites views both for and against, including all the complicated positions in between. The crux of the arguments in favour of exclusion are similar to those used in the ZaydÄ« debate, namely that a term has a certain usage, even âcustomâ (Ê¿urf) and therefore carries the meaning of exclusion, as intended by the founder of the waqf. This intention then is implicitly, on an aggregate level, admitted as a source of validity for the possibility of exclusion.
In ShÄfiÊ¿Ä« fiqh as exemplified by al-NawawÄ« (d. 676/1277), the matter is crystal clear in the matn of the MinhÄj al-á¹ÄlibÄ«n, the famous abridged textbook of ShÄfiÊ¿Ä« legal theory:
⦠And, the awlÄd al-banÄt are included in the waqf for the dhurriyya, the nasl, and the Ê¿aqab, and the children of the children, except if the founder states âwhoever descends [in patrilineage] from me (illÄ an yaqÅ«la Ê¿alÄ man yantasibu ilayya minhum) â¦
Thus the term nasab and the verb yantasibu can be added to the wording of the establishment to achieve an exclusion of the awlÄd al-banÄt. Al-ShirbÄ«nÄ« (d. 977/1570) adds in his sharḥ of al-NawawÄ«âs MinhÄj that this applies only to a waqf made by a man.182 The comments in the Tuḥfat al-muḥtÄj by Ibn Ḥajar (d. 974/1567) are very similar.183 In sum, exclusion is considered valid.
As for the issue of âno testament to an heirâ al-ZuḥaylÄ« notes that the Egyptian testament law (QÄnÅ«n al-waṣīya al-Maá¹£rÄ«) from 1946 allows for a testament in favour of an heir for one-third of the estate, contrary to most SunnÄ« fiqh, thus it actually takes a ShÄ«Ê¿Ä« stand. As for the Syrian law, it has retained the SunnÄ« restriction, but a testament in favour of heirs is allowed if the all the heirs accept it.184 As for practices in MÄlikÄ« waqf, Layish remarks that the exclusion of heirs in MÄlikÄ« waqfs was invalid according to leading jurists, while in practice it was usually allowed.185
As for the waṣīya in modern Yemeni law, this is regulated in the personal status law (QÄnÅ«n al-aḥwÄl al-shakhá¹£iyya), where the law states that a waṣīya to an heir is invalid, as it also is for the heir of the heir.186
13.1 Critique of the Liberal Family Waqf Outside the Zaydī Context
David Powers argues that the contradiction between the waṣīya, the waqf, and the inheritance rules was a controversial issue from the very beginning of Islamic law. According to Powers, this is exemplified by the ḥadÄ«th: no endowment in circumvention of Godâs shares (lÄ á¸¥abs Ê¿an farÄʾiḠAllÄh).187 Another very similar ḥadÄ«th is quoted by al-ShawkÄnÄ« in his Sayl al-jarrÄr: âNo waqf after the revelation of the inheritance rulesâ or â⦠after the revelation of SÅ«rat al-NisÄʾâ (lÄ á¸¥abs baÊ¿da nuzÅ«l sÅ«rat al-nisÄʾ). This ḥadÄ«th is an example of an argument against the waqf, but as al-ShawkÄnÄ« explains, these are only odd examples.188 Waqf in general is valid, without doubt, in all the major law schools. The general view among historians is that the institution of waqf as such was considered valid and was indeed frequently used throughout history, until restrictions were imposed in colonial and post-colonial times. The critique against the institution of waqf has arisen in modern times mainly in the colonial context, where the British especially focused on the balance between the waqf and the inheritance rules, and favoured the latter.
13.2 Colonial Restrictions on Family Waqf
There are two âproblemsâ related to waqfs that have drawn the attention of modern jurists. The first is the negative effect of removing large amounts of assets from the local economy, since waqfs âcannotâ be bought and sold. The second problem is related only to family waqfs and focuses on the circumvention of the inheritance rules. The first problem has often been called the âdead manâs handâ or âmortmainâ and is of course also applicable to charitable or public waqfs, not only to family waqfs. This problem was mainly put forward by French orientalist scholars, colonial administrators, and their allies when French settlers and investors had problems obtaining full ownership rights over the land they wanted to acquire in their protectorates in the Middle East and North Africa. It was also seen as a problem for Muḥammad Ê¿AlÄ«âs taxation and agrarian reforms.189
The British, in contrast, did not raise the problem of the âdead manâs handâ to the same degree, rather the second problem was more prominent for them and very controversial as it arose when judges in British colonial India began to enforce Islamic inheritance law in a systematic way. Muslims had their own family law under British colonial law, but it was sanctioned by British judges at a high level. The family waqfs created great problems of inconsistency as in practice they contradicted the inheritance rules. The focus was on the intention of the waqfs; if it was meant for the founder and his family it was conceived of as a way to circumvent the inheritance rules, and it was rendered invalid. In the latter half of the nineteenth century, British courts invalidated numerous family waqfs as the disinherited actors brought these waqfs to the courts. After protests from leading Muslim elites and Muslim scholars, the abolishment of the family waqfs made by the Privy Council in 1894 were withdrawn by an act in 1911 called the âMussulman Wakf Validating Act.â190
The debate investigated in this chapter has been remarkably free from references to similar debates in other law schools or societies and it can safely be termed âZaydÄ«â and even âYemeni,â191 although local legal debates and knowledge have of course always been a part of, and influenced by, the wider Islamic tradition of learning. It is possible that Imam YaḥyÄ was inspired by the British colonial waqf law from India, East Africa, and Aden, and that Imam YaḥyÄâs views were affected by the British solution. Actors in the debate in the period before Imam YaḥyÄ clearly took their positions in the unique pre-colonial setting of Yemen.
While Powers claims that restrictions or even the abolishment of family waqfs by law is something that is only found in the colonial context, I have shown in this chapter that this is not correct for ZaydÄ« Yemen. Powers is correct in his argument that waqfs as an institution as such and then with an emphasis on the charitable aspect, did indeed enjoy an almost absolute consensus. The same applies to the general validity of family waqfs.192 Some jurists did see the difference between the charitable waqf and the family waqf, even if the two concepts were not always clearly separated.193 Powers states that despite some colonial administrators and judges who claimed that waqfs in general and family waqfs specifically were illegal, it is obvious that waqfs were considered valid by Muslim jurists: âTo argue otherwise, as both British judges and French orientalists did, betrays either a profound misunderstanding of the historical development of Islamic law, or a willingness to manipulate the historical record for political reasonsâor both.â194 Anderson states that there is no branch of Islamic law where âjudicial infusion of alien ideas,â âmisinterpretation,â âbasic ignorance,â and ârigidity of mindâ by judges in British courts have frustrated Muslim people more than under British colonial jurisdiction.195 Thus Powers and Anderson portray this as a matter in which Muslims were subjected to something completely new under colonial law when family waqfs were restricted. In this chapter however, we can see that the critique of, and restrictions on family waqfs also took place in non-colonial, Muslim settings.
â¦
In this chapter we have seen a considerable interrelationship between the inheritance rules, the waṣīya, and the waqf. Over time, we see that the codification of the problem, in decrees and fatwÄs, alternated several times between those âforâ and âagainstâ the exclusion of the awlÄd al-banÄt. The HÄdawÄ«-ZaydÄ« debate sustained a model of an intergenerational transfer in which an individual could decide over one-third, as in the testament, this âfree thirdâ made its way into the HÄdawÄ« waqf model. In this âfree third,â pious intention (qurba) was not a condition, at least it did not restrict one from favouring some heirs over others. With the presence of this âfree thirdâ in the fiqh debates, the lines between the two otherwise different concepts of the waqf and the waṣīya became blurred. Fiqh, codification, legal cases, and local everyday knowledge mutually influence the formulation and counter-formulation of the arguments over validity.
This chapter has followed a chronologic trajectory of a set of rules centring on how to transfer property, in most cases land, from one generation to the next. Because of the local social and cultural context there is a âneedâ for a model of intergenerational transfer of wealth that is more flexible than the inheritance rules. And as we can see, both from the decrees, and from what we can infer from the legal discussions, family waqfs for the male descent line have been fairly well accepted, although as most admit, they require moral caution, invite criticism, and increasingly also became restricted legally through codification.
If we look away from the more theoretical, moral criticism we may ask who protested against the exclusionary family waqfs in daily life? Who took these waqfs to the judge or the court in order to challenge them? The exogamously married womenâs children, the awlÄd al-banÄt, grew up in another family and if this family was of equal status, they would have their own waqfs from their fatherâs side. By using the exclusionary family waqf, some of the lateral movement of land between families was replaced with a more vertical movement of wealth within the patrilineal group. Theoretically, seen from a distance, the system was fair if practiced equally by all landowning families. This could be part of the reason for the overall acceptance. What must also be noted here, and which has not been treated in this chapter in detail, is that there are different models for sharing a family waqf among the generations and among males and females. The most common is to share it by âheadsâ (Ê¿alÄ l-ruʾūs). This means that the females will get a full share equal to that of a male. Such a waqf does not discriminate against âfemalesâ in general; on the contrary, the females would then get more per person in waqf division than in inheritance division. Yet, what informants recount is that many conflicts arose over these issues and since many of the affluent families intermarry, the criss-crossing claims of inheritance and waqf shares can be very complex when accumulated over generations.
One other important distinction is to see the exclusionary form of family waqf in a class perspective. Among the poor and in the tribal areas, women have a weaker position in terms of their right of inheritance from their husbands or parents. Martha Mundy made one of the best ethnographic studies on this topic from the valley of WÄdÄ« á¸ahr near Sanaa.196 In her material, her informants show how waqfs were actively used and contested. Yet she also states, that âfarmers do not tie up their property in waqf.â197 It takes a certain amount of wealth and legal knowledge to use a waqf as a wealth management strategy. She also argues that on a more general level, in practice, womenâs rights to inheritance vary greatly from family to family and in the lower strata and in rural and tribal areas, women often do not receive their full share.198 This leads us to look at the more affluent families. Clearly many of the large family waqfs still in existence are found among these âold richâ sayyid and qÄá¸Ä« houses. For many, family waqfs were the economic glue that kept these families together and since the waqfs were usually controlled by the older, leading member of the family, it was also used as an instrument of power by the leading part of the family, over the more marginal members.199 The status of women in these families, however, is fundamentally different from that of âtribal womenâ or women from poorer strata. The women from wealthier families were in general educated and could read and write. Through their close male relatives, they would have access to legal knowledge, that is, both the letter of the law and knowledge of how the court system functioned practically; thus this class of women knew their rights. We should also be careful about seeing this as a womenâs struggle against patriarchy. The opposition by men against the powerful core of their own extended family, who often controlled the waqf, is just as important. As for the category of awlÄd al-banÄt specifically, these children included, of course, both males and females. From the perspective of the peripheral members of the extended family it must have been frustrating to be unable to sell oneâs part in the family waqf, that is, one might want to sell his share in the asset(s), instead of receiving a very limited yearly share. Once the family waqf system started to change under Imam YaḥyÄâs decrees, these more peripheral members of the large families, or âhouses,â could take such waqfs to court and have them dissolved on the grounds that they were exclusionary. This way the assets could be sold, and for example, agricultural land in the vicinity of growing cities could reach high prices.
We can only speculate on what caused this change in policy and the ideas and motives behind it. What is certain is that once the new decrees went into effect, a domino effect started. The strategies of transferring wealth also differed from family to family; some families retained their family waqfs, others completely privatized them. We must not forget that the twentieth century saw fundamental changes, which make it difficult to compare the social context of today with that of earlier history. The mere growth in population and economy led to new forms of investment strategies. For instance, a family waqf that was not actively managed and economically reformed and re-invested, would be worth relatively less today than if it had been constantly reinvested in revenue producing assets. Further, a stable society with few fluctuations in land prices is very different from the situation in urban areas after the revolution. Owning land and âowningâ a waqf share are not very different concepts as long as it concerns the yearly harvest and the right to a share of the income from the harvest. However, once the land itself becomes valuable as an asset, which can be sold, for example, for building plots for expanding cities, there arises a strong incentive to dissolve oneâs family waqf, especially, from the perspective of the marginal members of the family in need of cash. A few bags of grain a year cannot compare to the cash that could be obtained by selling the (now) urban land.
The houses and families that have retained their waqfs seem to be those that had a strong internal coherence. Messick suggests that changes in family ideology were important; more focus on the individual and the smaller nuclear family made the family waqf unnecessary and unwanted.200 From this perspective we can imagine that once the validity of an exclusionary family waqf was disputed in a general cultural perspective, this also affected the laws. Once the laws and legal practices changed, the family waqf could not âreturn.â
The presence of a national court system that could more or less systematically enforce its decisions is also central to this explanation. In periods of political chaos, the extended family is more important to individuals, and the court system is unlikely to be able to enforce laws contrary to the views of local shaykhs and elites, especially when the exclusionary family waqf is considered âvalidâ according to the madhhab as a whole, although morally doubtful. The level of codification that this chapter has focused on is ultimately dependent not only on a political force choosing and formulating the laws, but also on their enforcement. In periods during which this field of legal knowledge was not codified into coherent decrees that were enforced, legal subjects had to rely on local judges who serve their communities as notaries and who could consult directly the fiqh discourse making their own codification, circumventing the level of state codification.
When asking informants about the restrictions on the family waqf and how they came about under Imam YaḥyÄ, few informants look back and give âsociologicalâ explanations. Most claim that Imam YaḥyÄ did so because of sharÊ¿Ä« reasons. The awareness that waqf was used as a tool to circumvent the inheritance rules is not found so much among the young. Among the older generation, and also in the countryside among landowning families, the concept of family waqf is a very well-known tool used in order to ânot give inheritance to the women.â Thus even without resorting to complicated fiqh arguments, ânormalâ landowning informants see the restrictions as an attempt to make a clearer and more just law with fewer legal ruses. The idea that a person is free to dispose of only one-third of oneâs wealth is widespread. Related to this is the concept of the bikr (the eldest son), who often has a closer relation to the family economy or politics than his younger brothers. It is often he who would wait to inherit a recitation waqf, or the position as the waṣīy (mutawallÄ«) of a family waqf or a family controlled public waqf as treated in chapter 7. Legal conflicts between siblings are common, but many state that it is a great shame to summon oneâs father or brothers to court (yusharriÊ¿). It is also often mentioned that it can be extremely expensive and the judge may be corrupt.
A young sayyid from Sanaa told me that their family had retained their family waqf, and every year he received two large bags of coffee from the mountains of Änis. They were more symbolic than economically important he said. Their relatives who were left in Änis were so poor that they needed their own land and the same was the case of those sharecroppers who tilled the land with them. He had no wish to change anything about that.
One young informant in Sanaa, whose rather important and wealthy family came from al-Ê¿Udayn in Ibb, told me that they still had large amounts of land as family waqf. The waqf had been reformed to include all females,201 and also consisted of a large, new community house in their village, with private flats for visitors from Sanaa. There were also some charitable works in their home village funded by the same waqf.
Far more concrete cases and examples are needed to build a history or ethnography of practice of this topic, something that could not be followed further here. As discussed at the end of chapter 3, estimates of the percentage of waqf range from 5 per cent to 25 per cent to a much higher percentage in urban areas. The figures are uncertain and given the fear of government intervention, under-reporting is to be expected. The figure varies from area to area and the percentage of how much of this total is family waqf as opposed to charitable waqf is often not defined in such estimates. Even if defined, it is not well understood by informants for reasons clarified in this chapter. Asking questions about waqf when family waqfs are actually often termed waá¹£ÄyÄ will of course skew the result. It is fair to believe that the figure is generally fairly low today. Other forms of communal family-owned land or real estate ownership could be very similar to that of a family waqf. More research is needed about new forms of family estate ownership and joint family wealth management.
Ibn al-Murtaá¸Ä, KitÄb al-Baḥr al-zakhkhÄr (Beirut: Muʾassasat al-RisÄla, 1975), 155. The same proverb is quoted in the same location in the waqf chapter of the fiqh work by YaḥyÄ b. Ḥamza, NÅ«r al-abá¹£Är. An almost identical proverb is found in Ê¿AbdallÄh b. Ḥamza, al-MajmÅ«Ê¿ al-manṣūrÄ«, 2:449.
It is fairly clear that decrees from the ruler (the imam) to the judges are within the definition of âcodificationâ given in chapter 2. The fatwÄs are slightly more problematic. Here it must be assumed that the fatwÄs were of a legally binding character, not simply religious advice and clarifications aimed at moral effect only. The fatwÄs quoted in this chapter are mainly from Ê¿AbdallÄh b. Ḥamza, al-HÄdÄ« Ê¿Izz al-DÄ«n, and al-ShawkÄnÄ«, and were issued in the name of ruling imams or the chief qÄá¸Ä«.
See D. S. Powers, âThe Islamic Inheritance System: A Socio-Historical Approach,â Arab Law Quarterly 8, no. 1 (1993): 13â29; âThe Islamic Family Endowment,â Vanderbilt Journal of Transactional Law 32 (1999): 1167â1190.
For an overview of the inheritance rules see Schacht, Introduction to Islamic Law, 169â173 and Vikør, Between God and the Sultan, 318â321.
Many forms of group ownership exist; family waqf is one of them. The tribe or clan may also âownâ the surrounding grazing land in common, but in Yemen, grazing land is not called property (mÄl, amwÄl, milk, amlÄk), this mainly refers to agricultural fields and terraces. The land between the agricultural fields and outside them is mainly used for livestock, which is less important than land for growing crops. The system of managing resources for livestock is based much more in tribal and customary practices than in Islamic ownership law.
See D. S. Powers, âThe Maliki Family Endowment: Legal Norms and Social Practices,â International Journal of Middle East Studies 25, no. 3 (1993): 379â406, especially 394â395: âThe wide gap separating these two sets of legal normsâinheritance and endowmentsâmay be illustrated by comparing the group composed of the beneficiaries of a familial endowment with the group composed of the founderâs heirs. While most beneficiaries are also heirs, the great majority of heirs do not qualify as beneficiaries. Thus, a man who establishes an endowment for his children and lineal descendants effectively disinherits his spouse, siblings, cousins, uncles, and nephews, to mention just a few.â
If the waqf is made during oneâs lifetime, but to take effect after death, it is also a testamentary disposition (waṣīya), and thus limited to one-third of the estate. It is still a waqf.
In modern Yemeni law, the gift is restricted as well. One might expect that this could be an âoutlet,â but it seems to have been restricted already by Imam YaḥyÄ, as discussed later in the chapter. It is restricted to one-third in all cases and invalid for heirs unless they all approve. This adds to the argument that the four fields merge in practice.
See Hiroyuki Yanagihashi, âThe Doctrinal Development of âMaraḠal-Mawtâ in the Formative Period of Islamic Law,â Islamic Law and Society 5, no. 3 (1998): 326â358.
Restriction on charity in the presence of heirs can be claimed through various ḥadÄ«ths and different views exist. See below, on Ê¿AbdallÄh b. Ḥamza.
The arguments above are rather theoretical, designed to clarify the âproblem.â Yet, many times I have discussed this question with a wide variety of informants who claim that an individual is not allowed to do what he wants with his property during his lifetime; he is only allowed to give away one-third. This âmisunderstandingâ is âwrongâ according to the ideal fiqh, but correct according to local knowledge of morals, law, and âIslam.â This ethnographic fact contradicts a âlegalâ normative fact and perhaps even the understanding of western academic scholars of Islamic law. The chapter shows how the two are combined in the field of codification. One example is Vom Bruckâs statement, that âin accordance with Islamic family law, a person may alienate a third of his or her property from the heirs specified in the Qurʾan and declare it as a waqf.â This was told to her by Muḥammad al-Manṣūr. But what Muḥammad al-Manṣūr refers to is not âIslamic law,â but Yemeni codification since the time of Imam YaḥyÄ. In âIslamic lawâ no such restriction exists. Vom Bruck, Islam, Memory, and Mortality, 73, 290 n29.
The term âhis propertyâ is somewhat static in a biographical perspective. I mainly refer to a person in the later stages of life when he is in possession of property. Otherwise, the amount of âone-thirdâ would vary greatly in absolute terms, say between a youth who has not yet inherited from his father or gathered wealth, and someone at a late stage of life writing his will.
This is fairly agreed upon; a waṣīya is simply a transfer similar to a gift, while a waqf must, in ZaydÄ« waqf doctrine (and ḤanafÄ« waqf doctrine), be pious. The ShÄfiÊ¿Ä« waqf, on the other hand, simply avoids the whole problem by not specifying that piety (qurba) is a requirement for a waqf.
An example is what is mentioned in the letter from Ibn al-AmÄ«r to al-MahdÄ« l-Ê¿AbbÄs, outlined in chapter 3. An informant from one of the most important sayyid houses and a mutawallÄ« for all of the familyâs waqfs stated that today many of theirs assets were being sold and that the family waqf could, according to the sharÊ¿Ä« law, legally be privatized (al-waá¹£ÄyÄ tuḥarrar), in contrast to waqf proper (waqf, waqf muá¹laq) which âof courseâ is something else, and carries another type of sanction. This is in accordance with the legal norms after Imam YaḥyÄ and into the present.
The waqf chapter of the Muntakhab is very short and written in qÄla-qultu style, in which the author, al-KÅ«fÄ«, âinterviewsâ al-HÄdÄ«. Muḥammad b. SulaymÄn al-KÅ«fÄ«, KitÄb al-Muntakhab (Sanaa: DÄr al-Ḥikma al-Yamaniyya, 1993), 363â365. It is only one-third that is free of exclusion, in the remaining two-thirds the awlÄd al-banÄt were included: âAnd I asked him about a man who made a waqf of all his property for his son and the son of his son without the females (dÅ«na al-inÄth)? He said: That is invalid (bÄá¹il), this must follow Godâs shares and the waqf must be for both males and females according to Godâs shares (sihÄm AllÄh) and the males are to be given a third of the waqf without the females (inÄth).â KitÄb al-Muntakhab, 364. In this, the HÄdawÄ« waqf model is more restrictive than other law schools, which allow for exclusion. Among the ZaydÄ«s this is restricted to one-third anyway, while among the ShÄfiÊ¿Ä«s the restriction to one-third in the exclusion does not appear to be there, even though it might be found in other, related rules.
One imam between al-HÄdÄ« and al-Manṣūr Ê¿AbdallÄh b. Ḥamza was Imam al-Manṣūr al-QÄsim b. Ê¿AlÄ« l-Ê¿IyÄnÄ« (d. 393/1003). He also upheld al-HÄdÄ«âs waqf model. See al-QÄsim al-Ê¿IyÄnÄ«, MajmÅ«Ê¿ kutub wa-rasÄʾil al-ImÄm al-QÄsim al-Ê¿IyÄnÄ«, ed. Ê¿Abd al-KarÄ«m Aḥmad JadbÄn (Saʽda: Maktabat al-TurÄth al-IslÄmÄ«, 2002), 116â123. However, he seems not to be widely quoted afterward.
Ê¿AbdallÄh b. Ḥamza, al-MajmÅ«Ê¿ al-manṣūrÄ«, 2:55.
The thesis edited in al-Manṣūrâs fatwÄ collection or pages 2:439â463 in al-MajmÅ«Ê¿ al-manṣūrÄ«.
âThe restriction to the thirdâ refers to the restriction in the waṣīya, in that one cannot make a waṣīya of more than one-third of oneâs property.
According to him it is legal to dispose of all oneâs property during oneâs life, although it may be reprehensible to give away so much that oneâs heirs suffer. This ḥadÄ«th, according to him, relates specifically to ânadhr al-hadÄyÄ ilÄ bayt AllÄh al-ḥarÄmâ and it does not automatically cover all sorts of dispositions. Ê¿AbdallÄh b. Ḥamza, al-MajmÅ«Ê¿ al-manṣūrÄ«, 2:440â441.
Ibid., 2:445.
As mentioned above, in the waṣīya âthe thirdâ does not have to be pious. In waqf, if this is given by means of a waṣīya, is the third dependent on piety or not? Which of the two concepts (with or without piety) should govern the third if it is both a waqf and a waṣīya? According to HÄdawÄ«-Zaydism, in order to be given to heirs the third must also be pious because this is a condition in waṣīya to heirs, according to the chapter of waá¹£ÄyÄ in Ibn MiftÄḥ, Sharḥ al-azhÄr: âa waṣīya is valid, even for heirs, if made in pietyâ (wa law li-wÄrith fÄ« l-qurab). See âKitÄb al-waá¹£ÄyÄ,â Sharḥ al-azhÄr (1980 ed.), 4:516.
Ê¿AbdallÄh b. Ḥamza, al-MajmÅ«Ê¿ al-manṣūrÄ«, 2:446.
He refers to the âtwo imamsâ (the two Caspian HÄrÅ«nÄ«s, al-Muʾayyad and AbÅ« ṬÄlib), who state that it is legal, during oneâs life, to give to some of oneâs heirs and even prefer some over others and that this may be pious, according to the intention of the giver, and that there should be an a priori assumption of piety, unless otherwise proven. Ê¿AbdallÄh b. Ḥamza, al-MajmÅ«Ê¿ al-manṣūrÄ«, 2:447.
Ibid., 2:449.
Ibid., 2:450.
Ibid., 2:450.
This is clarified by al-Manṣūr shortly after this, and also clarified in the Sharḥ al-azhÄr, 8:297 (2003 ed.): al-Muʾayyad was opposed to al-HÄdÄ«âs view; he argued that if the waqf was opposed during the lifetime of the founder, then indeed the remaining two-thirds are milk, not waqf. This is probably the reason âit can be bought and sold.â Al-Manṣūr states that this is an example of a rule that has been legitimized piece by piece, but that the whole rule as an entity lacks fundamental validity. Ê¿AbdallÄh b. Ḥamza, al-MajmÅ«Ê¿ al-manṣūrÄ«, 2:401.
The discussion of the status of the remaining two-thirds reveals strong disagreementâthis is evident from the footnotes of the Sharḥ al-azhÄr. âÊ¿Ämir, MuftÄ«, al-SaḥūlÄ«, and Imam Sharaf al-DÄ«n,â all important names in ZaydÄ« fiqh, are in favour of the view that the two-thirds remain private property. Ibn MiftÄḥ, Sharḥ al-azhÄr, 8:298.
Ê¿AbdallÄh b. Ḥamza, al-MajmÅ«Ê¿ al-manṣūrÄ«, 2:450.
âWa aqÅ«lu anna al-HÄdÄ«, Ê¿alayhi al-salÄm, jaÊ¿ala la-hum al-thulth á¹£ulḥanâ Ê¿AbdallÄh b. Ḥamza, al-MajmÅ«Ê¿ al-manṣūrÄ«, 2:451.
Ê¿AbdallÄh b. Ḥamza, al-MajmÅ«Ê¿ al-manṣūrÄ«, 2:458â459.
Ibid., 2:277â278 and 3:350â351.
YaḥyÄ b. Ḥamza, al-Intiá¹£Är.
Gelder, âYaḥyÄ b. Ḥamza al-Ê¿AlawÄ«.â
YaḥyÄ b. Ḥamza, NÅ«r al-abá¹£Är. This was provided by the Muʾassasat ImÄm Zayd b. Ê¿AlÄ« l-ThaqÄfiyya, I am most grateful for their assistance. The electronic copy of the manuscript is not paginated.
âBanÅ«nÄ banÅ« abnÄʾinÄ wa-banÄtunÄ banÅ«hunna abnÄʾ al-rijÄl al-abÄÊ¿id.â The rules immediately following deal with the word awlÄd, whether or not the term if uttered or written automatically includes the awlÄd al-banÄt, and then the term awlÄdÄ« (âmy childrenâ). The question of hermaphrodites is also mentioned. After this, the following rule states: âwa law waqqafa hÄshimÄ« Ê¿alÄ dhÄlika al-hÄshimÄ« dakhala awlÄd al-banÄt in kÄna abÅ«hum hÄshimÄ«,â thus automatically including the awlÄd al-banÄt if the beneficiary is a specific hÄshimÄ« person. Perhaps the hÄshimÄ«s were somehow considered more pious.
A waqf establishment does not have to be written, it can be established by words, which produces a legal effect.
Ibn al-Murtaá¸Ä, KitÄb al-AzhÄr.
The discussion is further complicated as it not only centres on the awlÄd al-banÄt, but sometimes also on females in general. Even the rather hypothetical category of hermaphrodites is treated.
Ibn al-Murtaá¸Ä, al-Baḥr al-zakhkhÄr, 5:155.
That is, a waqf that follows the inheritance rules, that does not contradict them. In this, the awlÄd al-banÄt are not directly included, but at least the females are theoretically entitled to a share even if they marry out of the clan. Their children will subsequently âinheritâ their share in the waqf.
Ibn al-Murtaá¸Ä, al-Baḥr al-zakhkhÄr, 5:160â161.
This again shows that this is mainly an issue when a waṣīya is written and that it is meant to take effect after oneâs death.
Ibn MiftÄḥ, Sharḥ al-azhÄr, 8:198â199. He is also quoted at 8:203 n3.
Some of them belong to the period after Ibn MiftÄḥ. For instance, there is a long footnote with a quotation from a fatwÄ by Imam Sharaf al-DÄ«n (d. 965/1558), ibid., 8:199.
In Ibn MiftÄḥ, Sharḥ al-azhÄr (2003 ed.), these can be found at 8:199, 201, 203, 205.
In Ibn MiftÄḥ, Sharḥ al-azhÄr (2003 ed.), 10:408, no validation marks appear. In the Sharḥ al-azhÄr (1980 edition) we find that the rule allowing a waṣīya for an heir is allowed, and this is given a validation sign. Sharḥ al-azhÄr (1980 ed.), 4:516.
al-HÄdÄ« Ê¿Izz al-Din, MajmÅ«Ê¿ rasÄʾil, waqf 376â481 waá¹£ÄyÄ 629â660. The pdf version was kindly given to me by Ê¿AlÄ« Ê¿Abd al-RaḥmÄn ShÄʾim.
al-HÄdÄ« Ê¿Izz al-Din, MajmÅ«Ê¿ rasÄʾil, 2:381. For another similarly explicit remark stating that awlÄd al-banÄt are usually excluded, see ibid., 2:430. There are many more examples of this in the fatwÄ collection, but these are often only mentioned indirectly in questions referring to something else.
This is another theoretical concept that has become important in recent years.
See, for instance the fatwÄ on ibid., 2:466â467, which is later re-quoted in the RisÄla al-mahdawiyya (below in this chapter).
Ibid., 2:465.
Al-Mutawakkil Ê¿alÄ AllÄh IsmÄÊ¿Ä«l b. al-QÄsim b. Muḥammad, r. 1644â1676 (d. 1676).
As for his father, he was also a significant scholar and thus his views on the matter in question would be useful to include, however I have not been able to acquire texts on this. One footnote is attributed to him in Ibn MiftÄḥ, Sharḥ al-azhÄr (8:199), where he allows for the exclusion of the awlÄd al-banÄt in waqf.
They made the imamate hereditary in practice, yet according to classical Zaydī doctrine, any Ḥasanī or Ḥusaynī can become imam and the position is not hereditary.
IsmÄÊ¿Ä«l b. al-QÄsim b. Muḥammad al-Mutawakkil, âal-MasÄʾil al-murtaá¸Ät fÄ« mÄ yaÊ¿tamiduhu al-quá¸Ät,â MS 3013 fols. 104â106 (Dar al-Makhá¹Å«á¹Ät, Sanaa).
Wa-anna al-waqf alladhÄ« fÄ«hi ikhrÄj wÄrith aw naqaá¹£ahu Ê¿an mÄ«rÄthihi lÄ qurba fÄ«hi fa-lÄ yaá¹£ihhu, ibid., fol. 106.
á¹¢Äliḥ b. DÄwud al-ÄnisÄ« [d. 1651 or 1652], âKitÄb Taftīḥ abá¹£Är al-quá¸Ät ilÄ azhÄr al-masÄʾil al-murtaá¸Ät,â âFiqh/Ê¿ilm kalÄm,â MS 693 fols. 8â61 (DÄr al-Makhá¹Å«á¹Ät, Sanaa). The manuscript seems to have been copied in 1950. Bernard Haykel mentions two similar manuscripts, the MasÄʾil and the Sharḥ, from the same library, but with a different manuscript number, and these correspond to the MasÄʾil and the Sharḥ mentioned in this section. Haykel, Revival and Reform, 202â203. When I visited the DÄr al-Makhá¹Å«á¹Ät, it seems as if they had recently changed the catalogue system. Al-ShawkÄnÄ« mentions the MasÄʾil in the Badr under the entry of al-Mutawakkil IsmÄÊ¿Ä«l (Badr al-á¹ÄliÊ¿, 179) and notes that it was commented upon by an important scholar and judge of the time, IsmÄÊ¿Ä«l b. YaḥyÄ l-á¹¢adÄ«q (d. 1794): wa-sharraÊ¿a fÄ« sharḥ al-MasÄʾil al-murtaá¸Ät. See al-ShawkÄnÄ«, al-Badr al-á¹ÄliÊ¿, 191. Thus, al-ShawkÄnÄ« was himself aware of this work.
al-Ruqayḥī, al-ḤibshÄ«, and al-ÄnisÄ«, Fihrist makhá¹Å«á¹Ät, 2:992.
á¹¢Äliḥ b. DÄwud al-ÄnisÄ«, âKitÄb Taftīḥ abá¹£Är al-quá¸Ät,â fols. 49â51.
Ibid., fols. 50â51.
Ibid.
There has not been much research on this topic and there may have been ikhtiyÄrÄt or codifications issued by imams or chief qaá¸Ä«s in the meantime. Chief qÄá¸Ä« Ê¿ Aḥmad b. Abd al-RaḥmÄn al-ShÄmÄ« held his office under the father of al-MahdÄ« l-Ê¿AbbÄs, until YaḥyÄ l-SaḥūlÄ« took over the office.
In classical Zaydī doctrine there is a long list of conditions for being an imam. One of them is that he must be a mujtahid, that is, a scholar so learned that he can rely on his own scholarly authority in all questions of legal interpretation.
Haykel, Revival and Reform, 43.
See ibid., 113â114.
Several candidates are possible. One is the influential judge of the time IsmÄÊ¿Ä«l b. YaḥyÄ l-á¹¢adÄ«q (d. 1208/1794), al-ShawkÄnÄ«, al-Badr al-á¹ÄliÊ¿, 189. Aḥmad QÄá¹in, mentioned earlier, was important in the judiciary and the imamic dÄ«wÄn at this time. ZabÄra, Nashr al-Ê¿arf, 2:143.
QÄá¸Ä« YaḥyÄ l-SaḥūlÄ« was one of al-ShawkÄnÄ«âs teachers.
The decree is published as a photocopy in the appendix of the book by RashÄd al-Ê¿AlÄ«mÄ«: al-Ê¿AlÄ«mÄ«, al-TaqlÄ«diyya, 256. A photo of that page from that book and a transliteration and translation based on the photo is given in Hovden, âFlowers in Fiqh,â appendix 4.
Some of the honorary titles have not been included in the translation.
This Ḥasan is not found in the chain on the genealogical chart of the QÄsimÄ«s by Haykel in the beginning of his book, but this could be an inconsistency in the style of the otherwise very elaborate genealogy in the manuscript. Haykel, Revival and Reform.
It is assumed that this connection is abbreviated or âtelescoped.â
Then follows a long string of eloquent rhyming additions to the basmala, not translated here. Even the first passages below end in rhyme; because of the stylistic eloquence I could not translate this section word by word.
This last third has been left out here, but is given in Hovden, âFlowers in Fiqh,â appendix 4. ShufÊ¿a or pre-emption gives a direct neighbour the right, or first option, to buy a personâs property for the same price, if it is put on the market, that is, before any stranger. This ensures that land or houses cannot easily be purchased by people from outside the community. Often legal ruses were used to circumvent a persons right to shufÊ¿a.
Powers, âOn the Abrogation.â In this article Powers argues that the ḥadÄ«th âno testamentation to an heirâ was not put into circulation until the third/ninth century. Both the isnÄd and the matn of the ḥadith were strengthened at this time. Furthermore, Powers refers to the concept that an ÄḥÄd ḥadÄ«th cannot abrogate the QurʾÄn (see 280). See also Powers, Studies in Qurâan and ḤadÄ«th; The Formation of the Islamic Law of Inheritance (Berkeley: University of California Press, 1986).
Al-Murtaá¸Ä and al-NÄá¹£ir refer to the imamic titles of the two sons of al-HÄdÄ«, Muḥammad and Aḥmad, who were the successive imams after their father. See, for instance, the chronology of the early HÄdawÄ« imams: Gochenour, âThe Penetration of Zaydi Islam,â 64.
Trans. Abdullah Yusuf Ali, The Holy Qurâan: Translation and Commentary (Islamic Propagation Centre International, 1934), 71.
The ShifÄʾ al-uwÄm is a commentary on al-HÄdÄ«âs AḥkÄm by Ibn Ḥusayn b. Badr al-DÄ«n al-AmÄ«r, ShifÄʾ al-uwÄm fÄ« aḥÄdÄ«th al-aḥkÄm li-l-tamyÄ«z bayna al-ḥalÄl wa-l-ḥarÄm. For a biography of al-AmÄ«r (d. 1263 or 1264), see Ibn MiftÄḥ, Sharḥ al-azhÄr, 1:48 and 1:59â60.
This may be a reference to the BulÅ«gh al-marÄm by Ibn Ḥajar al-Ê¿AsqalÄnÄ« (d. 852/1449); it was later commented upon by Ibn al-AmÄ«r in the work Subul al-salÄm sharḥ bulÅ«gh al-marÄm min adillat al-aḥkÄm. However, it is a very common title and it could refer to other works.
The actual wording is very unclear in the manuscript, but it could read mutalqÄ bi-Ê¿umÅ«d. The argument, that the ḥadÄ«th is given the status of mutawÄtir even if it clearly is ÄḥÄd, is stated by al-ZamakhsharÄ« at Q 2:180. AbÅ« l-QÄsim MaḥmÅ«d b. Ê¿Umar al-ZamakhsharÄ«, TafsÄ«r al-kashshshÄf Ê¿an ḥaqÄʾiq al-tanzÄ«l wa-Ê¿uyÅ«n al-aqÄwÄ«l fÄ« wujÅ«h al-taʾwÄ«l (Beirut: DÄr al-Maʾrifa, 2006), 111.
Ghayra muá¸Ärrin. Here âdamageâ or âdisadvantageâ is perhaps a better term, as in âdisadvantage for some of the heirsâ as it refers to verse Q 4:12, which is one of the central inheritance verses. The latter half of the verse as translated by Yusuf Ali reads: âIf a man or a woman whose inheritance is in question, has left neither ascendants nor descendants, but has left a brother or a sister, each of the two gets a sixth; but if more than two, they share in a third; after payment of legacies and debts; so that no loss is caused (to any one). Thus is it ordained by God, And God is All-knowing, Most Forbearingâ â⦠min baÊ¿adi waṣīyatin yÅ«á¹£Ä bihÄ aw daynin ghayra muá¸Ärrin waṣīyatan mina LlÄhi â¦â4:12, 182. Ali (trans.), The Holy Qurâan. Yusuf Ali uses the term âlegacyâ for waṣīya. Often when this specific verse is referred to in similar debates, the first part of the verse âwaṣīyatan min AllÄhâ is used as a reference as well.
al-ZamakhsharÄ«, TafsÄ«r al-kashshshÄf, 226.
The discussion around the waṣīya li-wÄrith falls in the âchapter of waá¹£ÄyÄ,â Ibn MiftÄḥ, Sharḥ al-azhÄr (1980 ed.), 4:516, where it also, in brief terms, refers to the abrogation of the wujÅ«b but not the jawÄz and gives the example of the fasting of the day of AshÅ«ra, which also became âpermissibleâ and not âprohibitedâ after the ânecessityâ was abrogated, that is, it bolsters the argument that an abrogation can apply to one of the five categories of permissibility.
According to most informants, al-Zamakhshariâs exegesis, TafsÄ«r al-kashshÄf, is the most important QurʾÄn exegesis (tafsÄ«r) among ZaydÄ«s today.
See ghayr muá¸Ärr, n82 above. This topic is discussed by Powers, but he seems to understand from al-ZamakhsharÄ« that he accepted the full abrogation of Q 2:180. In one way he did, but as the argument in the RisÄla al-mahdawiyya explains, al-ZamakhsharÄ« did not think that the abrogation also took away what was below the âfreeâ third, which is an important specification. A testament of one-third does not cause âdamageâ and therefore is not abrogated by Q 4:12, an interpretation which necessitates the grammatical insight presented by al-ZamakhsharÄ«. This latter statement is not treated under Q 2:180 in al-ZamakhsharÄ«âs TafsÄ«r al-kashshÄf that Powers examines, but rather Q 4:12 (ghayr mudÄrr: ḥÄl ⦠wa-dhÄlika an yūṣī bi-ziyÄda Ê¿alÄ l-thulth â¦). Powers, however, does discuss other scholars who were against the abrogation, such as Fakhr al-DÄ«n al-RÄzÄ«, however, he concludes that theirs became a minority position. Powers, âOn the Abrogation,â 280â285. Al-ZamakhsharÄ«, TafsÄ«r al-kashshÄf, 266. See also David S. Powers, âThe Islamic Law of Inheritance Reconsidered: A New Reading of Q. 4:12b,â Studia Islamica 55 (1982): 61â94.
al-ShawkÄnÄ«, al-Fatḥ al-rabbÄnÄ«, 10:4845. Ibn al-AmÄ«râs works have not been consulted in this study.
This is a more or less direct quotation from the fatwÄ collection of al-HÄdÄ« Ê¿Izz al-DÄ«n, MajmÅ«Ê¿ rasÄʾil, 2:466. These lines are otherwise fairly unclear and it is difficult to establish if they are based on the decree only.
Imam al-HÄdÄ« Ê¿AlÄ« (d. 836/1432) was his grandfather.
See also al-HÄdÄ« Ê¿Izz al-Din, MajmÅ«Ê¿ rasÄʾil, 2:466.
Haykel, Revival and Reform, 19.
âBÄb anna al-waqf Ê¿alÄ l-awlÄd yadkhulu fÄ«hi walad al-walad bi-l-qarÄ«na lÄ bi-l-iá¹lÄq,â al-ShawkÄnÄ«, Nayl al-awá¹Är, 8:34.
Ibid., 8:36.
This is a peculiarity of al-ShawkÄnÄ«: he continually stresses that the sharÄ«Ê¿a is so clear that the only thing needed is his specific, methodologically based deduction. However, many of the numerous ḥadÄ«ths he quotes are not easy to understand and their relevance and validity to rather different legal questions in diverse historical contexts is certainly not clear. Thus his references to validity are not as clear as he claims.
The fatwÄ is found in the treatise of Muḥammad b. Ê¿AlÄ« l-ShawkÄnÄ«, âSuʾal hal yajÅ«zu bayÊ¿ al-mawqÅ«f Ê¿alÄ l-dhurriya Ê¿inda masÄ«s al-ḥÄja,â in DhakhÄʾir Ê¿ulamÄʾ al-yaman, ed. Ê¿Abd al-KarÄ«m al-JirÄfÄ« (Beirut: Muʾassasat DÄr al-KitÄb al-ḤadÄ«th), 174â175. The fatwÄ treatise is also found in âSuʾÄl fÄ« waqf al-dhurriyyaâ (Sanaa: DÄr al-Makhá¹Å«á¹Ät, MS vol. 1195, fols. 18â18). And in al-Fatḥ al-rabbÄnÄ«, 8:4111â4128. In the two last sources the treatise has the name âSuÊ¿Äl fÄ« l-waqf Ê¿alÄ l-dhurriyya.â Al-ShawkÄnÄ«âs treatises and fatwÄs are very comprehensive and partly overlap in content. In the Fatḥ al-rabbÄnÄ« there are two fatwÄs specifically about waqf, the second one is mentioned above âsuʾÄl fÄ« waqf al-dhurriyya,â and the first one is entitled âBaḥth fÄ« man waqqafa Ê¿alÄ awlÄdihi dÅ«na zawjatihi,â al-ShawkÄnÄ«, al-Fatḥ al-rabbÄnÄ«, 8:4019â4025. He also discusses family waqf as a legal ruse: âá¸arÅ«rat tayaqquẠal-bÄḥith li-ḥiyal al-fuqahÄʾ fa-lÄ yuÊ¿tabar fÄ«hÄ,â in the Adab al-á¹alab, 237â246. According to the editor of the Adab al-á¹alab, al-ShawkÄnÄ« has several other treatises on the topic, mainly related to the issue of waṣīya, see Adab al-á¹alab, 242â243 n3.
al-ShawkÄnÄ«, âSuʾal hal yajÅ«zu.â And in the treatise âSuÊ¿Äl fÄ« l-waqf al-dhurriyya,â al-Fatḥ al-rabbÄnÄ«, 8:4121.
Al-ShawkÄnÄ«, like other Muslim scholars, uses a wide variety of these phrases following the mention of the name of God, the Prophet, and the Companions; such phrases have been left out hereafter.
âAnna fÄ« kull kibd ruá¹batan ajran.â The editor refers to where the ḥadÄ«th can be found in the various ḥadÄ«th collections.
âAw yarfaʾu mÄ yuʾadhdhÄ« l-muslimÄ«n fÄ« á¹uruqihim,â also a ḥadÄ«th.
âMÄ sharraÊ¿ahu li-Ê¿ubÄdihi.â
âwa-jaÊ¿ala hÄdhÄ l-waqf al-á¹ÄghÅ«tÄ« dharÄ«Ê¿atan ilÄ dhÄlika al-maqá¹£ad al-shayá¹ÄnÄ«.â Note that the word á¹ÄghÅ«t is often referred to as tribal custom and practices not based on the sharÄ«Ê¿a, and the word is put next to the word dharÄ«Ê¿atan, which is very similar in sound to dhurrÄ«, the term for family waqf. This sentence is just one of many that shows his virtuoso use of the language.
Here the term dhurriyya is used to refer to local perceptions that only include the male descent line, i.e., awlÄd al-á¹£ulb.
WizÄrat al-Shuʾūn al-QÄnÅ«niyya, QÄnÅ«n al-waqf al-sharÊ¿Ä«, article 33.
al-ShawkÄnÄ«, al-Sayl al-jarrÄr, 3:51â52.
al-ShawkÄnÄ«, al-DarÄrÄ« l-muá¸Ä«ya sharḥ al-Durrar al-bahÄ«ya (Damascus and Beirut: Muʾassasat al-Kutub al-ThaqÄfiyya, 1988), 303.
Ibid., 304.
Al-ShawkÄnÄ« has several treatises on the matter of the lÄ waṣīya li-wÄrith. As with the questions related to waqf, these can be found in abbreviated form in the Sayl al-jarrÄr, in the Fatḥ al-rabbÄnÄ« the treatise is referred to as âIqnÄÊ¿ al-bÄḥith bi-dafÊ¿ mÄ áºannuhu dalÄ«lan Ê¿alÄ jawÄz al-waṣīya li-l-wÄrith,â 10:4839â4864 and âJawwÄb suʾÄl wurida min AbÄ« Ê¿ArÄ«sh ḥawla al-waṣīya bi-l-thulth,â 10:4865â4880. al-ShawkÄnÄ«, al-Fatḥ al-rabbÄnÄ«.
Ibid., 10:4865.
Haykel, Revival and Reform, 202. In this case al-ShawkÄnÄ« was not the imam, but rather representing his office and producing his own theories of how knowledge and power should be connected. Here Messickâs work about the discursive power of sharÄ«Ê¿a texts is also highly relevant.
The Ottomans tried to reform and unify the courts, but it seems that this was achieved to an extent, and only in the larger cities. For details, see Kühn, âShaping Ottoman Rule in Yemenâ; Bostan, âInstitutionalizing Justice in a Distant Province.â
al-Ê¿AlÄ«mÄ«, al-TaqlÄ«diyya, 258â259.
al-ShamÄḥī, á¹¢irÄá¹ al-Ê¿ÄrifÄ«n.
An early faá¹wÄ on the issue (from 1328/1910) by Imam YaḥyÄ is given in SÄlim, WathÄʾiq Yamaniyya, 202â204. Here Imam YaḥyÄ answers a question from the judge in KawkabÄn, al-Sayyid Ê¿AlÄ« b. Aḥmad b. Muḥammad Sharaf al-DÄ«n. The fatwÄ states that all charitable dispositions are to be limited to the rules of the waṣīya and thus be limited to one-third and to take effect after death. Furthermore, âcommonersâ (al-Ê¿ÄmmÄ«), despite their lack of knowledge about the sharÄ«Ê¿a, are to be allowed to undertake such dispositions. Ibid., 204. The fatwÄ does not address the issue of exclusion of the awlÄd al-banÄt.
See the uncertainty concerning the date of the first version in chapter 4.
Ibn MiftÄḥ, Sharḥ al-azhÄr (1980 ed.), 1:51. The qÄá¸Ä« Ê¿Abd al-JabbÄr al-JabbÅ«rÄ« l-á¹¢anÊ¿ÄnÄ« (d. 1771) is the only man by the name of Ê¿Abd al-JabbÄr in ZabÄraâs Nashr al-Ê¿arf. He was the judge of Sanaa under Imam al-MahdÄ« l-Ê¿AbbÄs, but withdrew because of a quarrel with chief qÄá¸Ä« al-SaḥūlÄ«. He studied under al-AmÄ«r including the ḥadÄ«th sciences. ZabÄra, Nashr al-Ê¿arf, 2:30â31. ZabÄra also quotes Aḥmad QÄá¹in who quotes Ê¿Abd al-JabbÄr about the waqf practices in Lower Yemen. Nashr al-Ê¿arf, 2:235. This is mentioned in the following chapter.
Ibn MiftÄḥ, Sharḥ al-azhÄr (1980 ed.), 1:51.
Ibid.
As for which words carry which legal implication according to the madhhab, see the elaboration of the footnotes of Ibn MiftÄḥ, Sharḥ al-azhÄr as treated below in the section dealing with al-TÄj al-mudhhÄb.
Al-ShawkÄnÄ«, Adab al-á¹alab, 243 n*. The editor of al-ShawkÄnÄ«âs Adab al-á¹alab, Ê¿AbdallÄh al-Surayḥī, specifies that Lower ḤÄshid refers to Ê¿Udhar and al-Ê¿Uá¹£aymÄt. Dresch mentions punitive campaigns undertaken at this time by the imam against ḤÄshid, partly legitimated by the need to correct the tribal custom of denying inheritance to women. Dresch, Tribes, 227.
Rule numbers 20, 21, and 22 also deal with aspects of family waqf, but parts of the sentences in the document are barely readable. However, in meaning, they are in full accordance with those found in the á¹¢irÄá¹ al-Ê¿ÄrifÄ«n and al-TÄj al-mudhhab (in the latter they are given as footnotes), thus a tentative reading could be:
20: âWaqf al-qirÄʾa for an heir is valid, not for consolation of the souls (lÄ li-l-taysÄ«r) (Waqf al-qirÄʾa li-l-wÄrith bi-mÄ taḥṣil min al-ghilla fa-á¹£aḥīḥ, lÄ bi-mÄ taysÄ«r). For the wording, see also al-TÄj al-mudhhab, 288 n1. Later, we know that this type of waqf was also used as a legal ruseâthe salary for the recitation was often far higher than the actual work involved. See the court case and judgement from 1944 referred to in MijallÄ«, al-AwqÄf fÄ« l-Yaman, 37â38.
21: Waqf for the children, excluding the wives, is not allowed, unless the wife is the mother of the children.
22: All donative dispositions made by commoners (Ê¿awwÄm) are restricted like a waṣīya, unless the transaction is completed and takes effect during [oneâs] lifetime.
This is the ḥadÄ«th âno testamentation to an heir.â Powers notes that this ḥadith does not occur in the two authoritative ḥadÄ«th collections of Muslim and al-BukhÄrÄ«. Powers, âOn the Abrogation,â 275. See also the discussion about this ḥadÄ«th earlier in this chapter conserning al-RisÄla al-mahdawiyya.
The ghayr muá¸Ärr is the QurʾÄnic reference (4:12) referred to in the RisÄla al-mahdawiyya, above. The á¹¢irÄá¹ al-Ê¿ÄrifÄ«n discusses how it should be read and al-ZamakhshÄrÄ«âs version is not mentioned at all. Al-ShamÄḥī, á¹¢irÄá¹ al-Ê¿ÄrifÄ«n, 40. It seems that the reading of the words baÊ¿da waṣīya yÅ«á¹£Ä bihÄ aw dayn ghayr muá¸Ärr waṣīya min AllÄh can produce several different meanings depending on how the word waṣīya relates to the context.
Haykel, Revival and Reform, 204.
al-ShamÄḥī, á¹¢irÄá¹ al-Ê¿ÄrifÄ«n. For a translation of the introduction to the á¹¢irÄá¹ al-Ê¿ÄrifÄ«n, see Haykel, Revival and Reform, 205â206.
Messick, âTextual Properties.â
al-Ê¿AnsÄ«, al-TÄj al-mudhhab, 288 n1.
See the lengthy comment on âno testamentation to an heir,â 33â44. On the waqf, see 44. On the Ê¿awwÄm, where it states that all dispositions are to follow the restriction of the waṣīya (non-charitable dispositions during oneâs lifetime are excluded from this), see al-ShamÄḥī, á¹¢irÄá¹ al-Ê¿ÄrifÄ«n, 44â45.
al-Ê¿AnsÄ«, al-TÄj al-mudhhab, 297. This note is inspired not only by Ê¿Abd al-JabbÄrâs fatwÄ; similar footnotes can also be found in the Sharḥ al-azhÄr. Here it is specified that there are disagreements over all the wordings, but that the validated consensus (tadhhÄ«b, taqrÄ«r) is that the wordings nasl, dhurriyya, Ê¿aqb, and nasab all exclude the awlÄd al-banÄt, and one footnote adds that this is to be followed also by the term awlÄd, if the custom is so (huwa mustaqÄ«m idhÄ jarÄ bihi al-Ê¿urf). Ibn MiftÄḥ, Sharḥ al-azhÄr, 8:203.
Here it should be noted that in the learned families it is very common for unmarried women to have their own waqfs for their group, in order to confirm their right to remain in the paternal house or in a separate part of the house. Such a waqf does not have to be made for unmarried women only, it can also be established for others in the family. I have heard of several such individual waqfs.
al-Ê¿AnsÄ«, al-TÄj al-mudhhab, 297.
Ibid., 289.
â⦠mÄ lam yaqil awlÄdÄ« li-á¹£ulubÄ« fa-lÄ yadkhulu awlad al-banÄt,â QÄsim b. IbrÄhÄ«m and al-Sarḥī, TaysÄ«r al-marÄm, 148, article 695.
Würth, Ash-sharÄ«Ê¿a fÄ« BÄb al-Yaman, 43.
For further comments on this see Haykel, Revival and Reform, 217. Haykel also points out that SunnÄ«-oriented ZaydÄ«s like al-Ê¿AmrÄnÄ« attribute many of the ikhtiyÄrÄt of Imam YaḥyÄ and Imam Aḥmad, and indeed also these first republican ikhtiyÄrÄt, to the views of al-ShawkÄnÄ«. Al-ShawkÄnÄ« is portrayed by many in the republican generation as a source of authority.
Sic! One would expect, âthe remaining beneficiaries,â not âheirs.â That the waqf reverts to the heirs of the founder is in accordance with validated HÄdawÄ«-ZaydÄ« views. In the fiqh, the waqf does not revert to private property if the original purpose ceases to exist, but returns to the heirs as (family) waqf.
This is also found in Ibn MiftÄḥ, Sharḥ al-azhÄr; it is an important principle from the time before the establishment of a hierarchical court system.
Waqf al-Ê¿ayn is a waqf for specific persons: when they die, their shares are inherited and thus further split according to the inheritance rules. There are many complications of division and again we can see that Ê¿urf is invoked to clarify the legal meanings. See al-Ê¿AnsÄ«, al-TÄj al-mudhhab, 293â294. The difference in the Ê¿ayn and jins is often (but not always) related to rules used to determine whether or not the whole generation of children must become extinct before the next generation can have their shares. In this case the value of one share increases as there are fewer to share the waqf with in that one generation; when the last person of the generation dies, the waqf is shared among the following generation. This is more accurately treated under the tartÄ«b issue, where the differences between the letters wÄw and fÄʾ matters, as âawlÄdÄ«, fa-awlÄdihimâ indicates that the entirety of the first generation must be extinct before the next can get their shares. See al-Ê¿AnsÄ«, al-TÄj al-mudhhab, 296. This article in the decree seeks to clarify these rules and reduce the alternatives by prohibiting the issue of tartÄ«b and leaving only one division model available.
Again, this is a reference to custom.
This was and still is the responsibility of the nÄáºir al-waá¹£ÄyÄ. Thus, according to this principle, as long as no one takes the waqf to court, the waqf could be approved by the ministry.
Sic bi-l-waqf. Presumably, al-waqf is correct. If not, it would read âand it shall not return to the founder and his family as waqf, since it [the property] has exited from the realm of private propery.â The basic meaning is the same.
al-Ê¿AmrÄnÄ«, NiáºÄm al-qaá¸Äʾ fÄ« l-IslÄm, 239â240.
For instance, Messick states that the 1940s to 1960s saw a wave of family waqf privatization in the city of Ibb. Messick, âTransactions in Ibb,â 386.
The law was officially called âDecree by the Majlis al-qiyÄda number 78 from the year 1976 regarding the issue of waqf.â This law is published in Manṣūr, al-Mawkib, 313â323.
Several of the sections have the same headings as before, for instance, see the one called âFÄ« mÄ yajibu Ê¿alÄ l-mutawallÄ« fiÊ¿luhu wa-mÄ yajÅ«zu lahu wa-mÄ lÄ yajÅ«zu.â
In Ibn MiftÄḥ, Sharḥ al-azhÄr this is treated in the third section: â(Faá¹£l:) FÄ« bayÄn mÄ yaá¹£iḥḥu al-waqf Ê¿alayhi wa-aḥkÄm tattabiÊ¿u dhÄlika.â
It is the very latest rule in the matn of the KitÄb al-AzhÄr.
Ibn MiftÄḥ, Sharḥ al-azhÄr, 8:298â299.
The phrase âcut off from its beneficiaryâ (munqatiÊ¿ al-maá¹£rif) is often used in fiqh discussions on regulating a waqf that requires change when the income remains, but the beneficiary is gone.
Article 28 says that a waqf that is âcut offâ from its beneficiaries should be spent in a similar purpose or type of beneficiary, or a better one. (This is the position of al-Muʾayyad and al-ShawkÄnÄ«.) The change of beneficiary must be approved by a judge. Relatives of the original beneficiary and relatives of the founder are to be preferred if the intention of the waqf can be achieved.
These are treated in chapter 6.
âThis is so because the commoners do not know the juristic implications of the terminology and often when they use terms like hiba, nadhr and similar [terms], they actually mean the waṣīya.â See al-ShamÄḥī, á¹¢irÄá¹ al-Ê¿ÄrifÄ«n, 44â45.
Or âwaqf that will take effect only after death.â
Under the waṣīya section as mentioned, not explicitly in the waqf section.
WizÄrat al-Shuʾūn al-QÄnÅ«niyya, QÄnÅ«n al-waqf al-sharÊ¿Ä«, 4.
al-QirshÄ«, al-AwqÄf wa-l-waá¹£ÄyÄ, 73.
IsmÄÊ¿Ä«l Ê¿AbdallÄh al-WaáºáºÄf, AḥkÄm al-waqf fÄ« l-fiqh al-IslÄmÄ« wa-qÄnÅ«n al-yamanÄ« (Sanaa: N.p., 2006), 79â80.
Ibid., 79.
âInna AllÄh taá¹£addaqa Ê¿alaykum bi-thulth amÄlukum Ê¿inda wafÄtukum ziyÄdatan fÄ« ḥasanÄtikum li-yajÊ¿alaá¸¥Ä lakum ziyÄdatan fÄ« aÊ¿mÄlikum.â The ḥadÄ«th can be understood in other ways as well. Here it is not important to clarify its potential meanings, but simply to point out that it is not readily understandable to everyone. The importance also lies in the way al-WaáºáºÄf uses it and the claims he makes based on it.
This point is also discussed in Dupret and Ferrie, âConstructing the Private/Public Distinction,â 150.
al-WaáºáºÄf, AḥkÄm al-waqf, 79â80.
ShalabÄ«, AḥkÄm al-waá¹£ÄyÄ, 385â387. ShalabÄ« states that the old ḤanafÄ« law (áºÄhir al-riwÄya) in these matters (practiced in Egypt until the 1946 law) gave the founder freedom to make all of his property into a waqf.
Y. Linant de Bellefonds, âHiba,â in Encyclopaedia of Islam, second edition, ed. P. J. Bearman, Th. Biancuis, C. E. Bosworth, E. van Donzel, and W. P. Heinrichs (Leiden: Brill, 1960â2004), 3:350.
Ibn MiftÄḥ, Sharḥ al-azhÄr, KitÄb al-hiba 8:146â147. The matn: âWa tukrahu mukhÄlafat al-tawrÄ«th fÄ«himÄâ (the hiba and the á¹£adaqa). The sharḥ: âIf the favouring is done for good reasons, it is not reprehensible, as long as it is within the third.â The discussions in the Sharḥ al-azhÄr on these pages are long and detailed. One footnote focuses on the fatherâs right to give to his eldest son (al-kabÄ«r, also known today as al-bikr) and the tadhhÄ«b signs favour the possibility of this. It even claims that this is valid because the word taraka customarily means waṣīya. Some notes, among them some attributed to al-SaḥūlÄ«, claim that it is not reprehensible to favour some of the heirs, if they are within the one-third. This statement provides a legal solution to a moral problem, and as such the limit between one-third and two-thirds is a practical one.
â⦠al-jawwÄb: al-hiba li-wÄrith al-wÄrith ḥukmuhÄ á¸¥ukm al-hiba li-l-wÄrith ghayr saḥīḥa illÄ an yujÄ«zÅ« baqÄ«yat al-waratha â¦â Aḥmad b. DÄwÅ«d b. Aḥmad b. Muḥammad al-Baá¹á¹Äḥ al-Ahdal, âKitÄb al-Tuḥfa al-qaddasiyya fÄ« ikhtiá¹£Är al-raḥḥabiyya fatÄwÄ l-Shaykh al-Ê¿AllÄma al-Sayyid Aḥmad b. DÄwÅ«d b. Aḥmad b. Muḥammad al-Baá¹á¹Äḥ al-Ahdalâ (Electronic copy of handwritten manuscript edited by Ê¿ArafÄt Ê¿Abd al-RaḥmÄn Ê¿AbdallÄh al-ḤadramÄ«, 1992), file DSC00033.
WizÄrat al-Shuʾūn al-QÄnÅ«niyya, QÄnÅ«n al-aḥwÄl al-shakhá¹£iyya: QarÄr jumhÅ«rÄ« bi-qÄnÅ«n raqm 20 li-sanat 1992 bi-shaʾn al-aḥwÄl al-shakhá¹£iyya wa-taÊ¿dÄ«lÄtuhu (Sanaa: Maá¹baÊ¿at al-tawjÄ«h, 2006), articles 183â187.
J. Pedersen, âNadhr,â Encyclopaedia of Islam, second edition, ed. P. J. Bearman, Th. Biancuis, C. E. Bosworth, E. van Donzel, and W. P. Heinrichs (Leiden: Brill, 1960â2004), 7:846.
Concerning the restriction to one-third in charitable dispositions: âThis is so, because the commoners do not know the juristic implications of the terminology and often when they use terms like âgift,â ânadhr,â and such, they actually mean the waṣīya.â Al-ShamÄḥī, á¹¢irÄá¹ al-Ê¿ÄrifÄ«n, 44â45.
We do not know to what extent ZaydÄ« rulers, such as the QÄsimÄ«s or Imam YaḥyÄ, enforced their law in the ShÄfiÊ¿Ä« areas, and if so, in which exact areas of the law. Since the above mentioned rulers, as exemplified by the commentaries of their decrees, were SunnÄ«-oriented, it is possible that the differences between their law and local ShÄfiÊ¿Ä« law was not very significant.
Such a nadhr document concerns one-third of a personâs property, giving it as a nadhr to a grandson. Hovden, âFlowers in Fiqh,â appendix 5.
The Law of Personal Status, Article 235 states that a waṣīya cannot be given for an heir or an heirâs heir. WizÄrat al-Shuʾūn al-QÄnÅ«niyya, QÄnÅ«n al-aḥwÄl. Therefore one would expect the same restriction in the law of nadhr, see foonote below.
The nadhr also seem to be a âproblemâ in the fiqh. I have not pursued this matter in this study but it is indicated by the presence of a treatise mentioned in ZabÄra, Nuzhat al-naáºar, 363: Ê¿Abd al-Rahman b. Ê¿AbdallÄh al-QadÄ«mÄ« l-TihÄmÄ« (d. 1330/1912): al-Tawá¸Ä«á¸¥ wa-l-bayÄn fÄ« tarjīḥ ibá¹Äl al-nadhr li-qaá¹£d al-ḥurmÄn [The clarification and argumentation for preferring to invalidate the nadhr intending to exclude (heirs)].
The ḤawliyyÄt describes the waqf and nadhr as somewhat similar. Anon., ḤawliyÄt yamaniyya, 527.
The Yemeni law of nadhr is short and falls under the section of dispositions, under the Personal Status Law. WizÄrat al-Shuʾūn al-QÄnÅ«niyya, QÄnÅ«n al-aḥwÄl, 32â33. Article 212 states that a nadhr is restricted to one-third of oneâs property.
See the case in MijallÄ«, al-AwqÄf fÄ« l-Yaman, 37â38.
âWaqf al-qirÄʾa li-l-wÄrith bi-mÄ taḥṣil min al-ghilla fa-á¹£aḥīḥ, lÄ bi-mÄ taysÄ«r.â For the wording, see al-Ê¿AnsÄ«, al-TÄj al-mudhhab, 288 n1.
See the court case and judgement from 1944 referred to by MijallÄ«, al-AwqÄf fÄ« l-Yaman, 37â38.
See Mundy, Domestic Government, 155, 158, 160, 231 n52, 232 n61. Messick, âTextual Properties.â See also Hovden, âFlowers in Fiqh,â appendix 6.
AbÅ« ḤanÄ«faâs view is also mentioned in Ibn MiftÄḥ, Sharḥ al-azhÄr.
Haim Gerber, âRigidity versus Openness in Late Classical Islamic Law: The Case of the Seventeenth-Century Palestinian MuftÄ« Khayr al-DÄ«n al-RamlÄ«,â Islamic Law and Society 5, no. 2 (1998), 184â185.
AbÅ« Zahra, MuḥÄá¸arÄt fÄ« l-waqf, 277.
âYashmulu bi-l-ittifÄq awlÄd al-dhukÅ«r dÅ«na awlÄd al-inÄth, ayy, awlÄd al-banÄt.â
Wahba al-ZuḥaylÄ«, al-Fiqh al-IslamÄ« wa-adillatuhu (Damascus: DÄr al-Fikr, 1997), 7663.
Muḥammad AmÄ«n Ibn Ê¿ÄbidÄ«n, Radd al-mukhtÄr Ê¿alÄ l-Durr al-mukhtÄr (Cairo: Sharikat Maktabat wa-Maktabat Muá¹£á¹afÄ l-BÄbÄ l-ḤalabÄ« wa-AwlÄdihi bi-Maá¹£r, 1966), 463â465.
al-ShirbÄ«nÄ«, MughnÄ« l-muḥtÄj, 2:511.
al-HaytamÄ« ShihÄb al-DÄ«n Aḥmad Ibn Hajar, Tuḥfat al-muḥtÄj bi-sharḥ al-minhÄj (online from Islamweb.net). The section falls in the same place in the matn as it does in the MughnÄ« l-muḥtÄj.
al-Zuḥaylī, al-Fiqh al-Islamī, 7478.
Aharon Layish, âThe MÄlikÄ« Family âWaqfâ according to Wills and âWaqfiyyÄt,ââ Bulletin of the School of Oriental and African Studies 46, no. 1 (1983), 8. This article is a useful basis for a comparison between MÄlikÄ« waqf and other law schools. See also Powers, âThe Maliki Family Endowment.â
WizÄrat al-Shuʾūn al-QÄnÅ«niyya, QÄnÅ«n al-aḥwÄl, article 235.
Powers, âOrientalism, Colonialism and Legal History: The Attack on Muslim Family Endowments in Algeria and India,â Comparative Studies in Society and History 31, no. 3 (1989), 564.
al-ShawkÄnÄ«, al-Sayl al-jarrÄr, 3:49. This ḥadÄ«th is often mentioned in fiqh works, at the beginning of chapters of waqf, and is often used as one of the few arguments against the legality of waqf. The other well-known âargumentâ against waqf, also widely quoted, was made by AbÅ« ḤanÄ«fa. For an example see al-ShawkÄnÄ«, al-Sayl al-jarrÄr, 3:48. Otherwise none of the early jurists and companions opposed the institution of waqf as a whole. As for restrictions, this is another matter of course.
Powers, âOrientalism, Colonialism and Legal History,â 538.
Ibid., 554â563. See also Gregory C. Kozlowski, Muslim Endowments and Society in British India (Cambridge and New York: Cambridge University Press, 1985).
ZaydÄ« fiqh is situated amidst, and constantly refers to, sources of validity in other law schools. As seen in this chapter, in the later period SunnÄ« ḥadÄ«ths are invoked a great deal. The debate on codification also affected those ShÄfiÊ¿Ä« areas under ZaydÄ« law.
Powers, âOrientalism, Colonialism and Legal History,â 564.
Ibid., 564â565 n125. In his argument Powers even cites al-ShawkÄnÄ«, Nayl al-awá¹Är, to prove the consensus of the legality of waqf in general. In the Nayl al-awá¹Är, which was one of al-ShawkÄnÄ«âs early works, al-ShawkÄnÄ« does adhere to the overall consensus regarding the legality of waqf in general, however, in his mature phase al-ShawkÄnÄ« took a negative position towards the concept of the family waqf, as shown in this chapter, though in contrast to Powersâ use of him as an example.
Ibid., 564â565.
J. N. D. Anderson, âWaqfs in East Africa,â Journal of African Law 3, no. 3 (1959), 152.
Mundy, Domestic Government; Mundy, âThe Family, Inheritance and Islam: A Re-Examination of the Sociology of FarÄʾiḠLaw,â in Islamic Law: Social and Historical Contexts, ed. Aziz al-Azmah (New York and London: Routledge, 1988); Mundy, âWomenâs Inheritance of Land in Highland Yemen,â Arabian Studies 5 (1979): 161â187.
Mundy, Domestic Government, 149.
This is also mentioned by Dresch. A standard scholarly and urban accusation of the tribal culture and âits un-Islamic ways of lifeâ is that they deny women their inheritance. As for the sociological or ethnographic fact of this statement more research is needed and the answer will most probably be highly dependent on local context. Dresch states that the claim to inheritance from oneâs husband was often dropped (isqÄá¹) and that this was even recorded in the marriage contract. Dresch, Tribes, Government, and History in Yemen, 186â187, 196 n35. Dresch also mentions that the typical landowning sayyid and shaykh families own significant amounts of land as family waqf. Dresch suggests that the term âcollective holdingâ is just as descriptive as the term family waqf. Tribes, Government, and History in Yemen, 162, 211.
Vom Bruck also states that exclusion of the awlÄd al-banÄt is found in such waqfs, according to her informants. Vom Bruck, Islam, Memory, and Mortality, 73â75.
Messick goes even farther and suggests that the emerging capitalist, individualistic ideologies made people want smaller families. Messick, âTransactions in Ibb,â 437. See also the article âTextual Properties.â
The issue of the awlÄd al-banÄt was not clear, but his remark clearly meant âthis waqf is not exclusionary anymore, and now follows the division of the inheritance law.â Such a provision would perhaps make it easier to defend the waqf against court claims today.