The Birth of A Legal Institution - Formation of Waqf by Peter C. Hennigan PDF
The Birth of A Legal Institution - Formation of Waqf by Peter C. Hennigan PDF
The Birth of A Legal Institution - Formation of Waqf by Peter C. Hennigan PDF
STUDIES
IN ISLAMIC LAW
AND SOCIETY
edited by
volume 18
THE BIRTH OF A LEGAL INSTITUTION
The Formation of the Waqf in Third-Century
A.H. \anafÊ Legal Discourse
BY
PETER C. HENNIGAN
BRILL
LEIDEN • BOSTON
2004
This book is printed on acid-free paper.
KBP637.H46 2003
346’064—dc21
2003052329
ISSN 1384–1130
ISBN 90 04 13029 2
All rights reserved. No part of this publication may be reproduced, translated, stored in
a retrieval system, or transmitted in any form or by any means, electronic,
mechanical, photocopying, recording or otherwise, without prior written
permission from the publisher.
1
David S. Powers’ article “Orientalism, Colonialism, and Legal History: The
Attack on Muslim Family Endowments in Algeria and India,” Comparative Studies in
Society and History, 31/3 (1989), 535–71, provides a nice survey of turn-of-the-century
Orientalist scholarship on the waqf.
2
The bibliography contains references to many of these works.
3
The terms “founder” and “settlor” are synonymous with one another. I have
used “founder” throughout this book since this term is more common in studies of
the waqf.
4
In modern usage, the word “˙ubs” signifies a pious endowment (i.e., a waqf ),
while the word “˙abs” refers to the act of sequestration. The Lisàn al-'Arab reveals,
however, that during the early period of Islamic history these semantic differences
were not drawn as sharply. As a result, it is not uncommon for modern historians
of the waqf to use the term “˙abs” to refer to a pious endowment. Jamàl al-Dìn
Mu˙ammad b. Mukarram al-Anßarì b. ManΩùr, Lisàn al-'Arab (Beirut: Dàr Íàdir,
1375/1956), 6: 44–46.
xiv
The most compelling form of the waqf, and the one most easily
recognized, is the public endowment (waqf khayrì ) in which the founder
designates as the beneficiary of the usufruct an institution or the gen-
eral Muslim community. Historically, waqfs khayrì were established for
mosques, madrasas, Qur"àn reciters, hospitals, and the acquisition of
weapons for the Holy War. Many of the most compelling architec-
tural structures within Islamic society—the towering minarets of the
Friday mosques, the great khànqàh-madrasas, and the crowded markets—
owe their origin to this form of privately-initiated pious endowment.
The establishment of waqfs was not limited to the domain of large,
public works, however. The waqf also permeated the private sphere
by means of founders who transformed agricultural lands, small
estates, and even single buildings or solitary date groves into what
came to be called familial endowments (waqf ahlì or waqf dhurrì ).5 In
contrast to the public waqf, the beneficiaries of the familial waqf gen-
erally consisted of individuals who had a lineal or personal rela-
tionship to the founder as well as the future descendants of these
beneficiaries for as long as subsequent generations continued to exist.
If the line of beneficiaries became extinct, then the usufruct reverted
to the poor, the destitute, the Holy War, or some other charitable
purpose or institution, in perpetuity.
The familial waqf became a preferred means of inter-generational
wealth transmission because it conferred several advantages. Some
5
It is important to note that the early Muslim community did not make a dis-
tinction between public and familial waqfs. In the waqf treatises of Hilàl al-Ra"y and
al-Khaßßàf, no terminological distinction is made between a waqf dedicated to a
mosque and one made for a family. Likewise, in the Mudawwana of Sa˙nùn, Màlik
b. Anas uses the term “˙ubs” to refer to endowments designated for the Holy War
and those created for family members or slaves. Hilàl b. Ya˙yà b. Muslim al-Ra"y
al-Baßrì, A˙kàm al-Waqf (Madìna: Ma†ba'at Majlis Dà"irat al-Ma'àrif al-'Uthmàniyya,
1355/1937), 13; Abù Bakr A˙mad b. 'Amr al-Shaybànì al-Ma'rùf bi"l-Khaßßàf, Kitàb
A˙kàm al-Awqàf (Cairo: Maktabat al-Thaqàfa al-Dìniyya, 1322/1904), 18; 'Abd al-
Salàm b. Sa'ìd al-Tanùkhì (known as Sa˙nùn), Al-Mudawwana al-Kubrà (Cairo:
Ma†ba'at al-Sa"àda, 1323–1342 A.H.), 15: 98–100. According to J. N. D. Anderson,
the eventual differentiation between the waqf ahlì and waqf khayrì was “the result of
a growing dissatisfaction with the Waqf system as it [had] developed.” Monica M.
Gaudiosi asserts that the emergence of these terms is relatively recent: “While the
concepts of both religious and family endowments existed in the medieval period,
the terminology distinguishing the two appears to be modern.” Anderson, “The
Religious Element in Waqf Endowments,” Journal of the Royal Central Asian Society
38/4 (1951), 297; Gaudiosi, “The Influence of the Islamic Waqf on the Development
of the Trust in England: The Case of Merton College,” University of Pennsylvania Law
Review 136 (1988), 1233, n. 13.
xv
6
“Jurist,” “Waqf,” Muslim World 4 (1914), 180; EI 1, s.v. “Wa˚f,” W. Heffening,
4: 1100; Martha Mundy, “The Family, Inheritance and Islam: A Re-examination
of the Sociology of Farà"i∂ Law,” in Islamic Law: Social and Historical Contexts, ed.
Aziz al-Azmeh (New York: Routledge, 1988), 47; Powers, “Orientalism, Colonialism,
and Legal History,” 536.
7
David S. Powers, “The Màlikì Family Endowment: Legal Norms and Social
Practices,” IJMES 25 (1993), 384.
8
William F. Fratcher, “The Islamic Wakf,” The Missouri Law Review 36 (1971),
161. See also Powers, “Orientalism, Colonialism, and Legal History,” 536 (observ-
ing that the 'ilm al-farà"i∂ “tends to fragment property into large numbers of small
and awkward shares”); idem, “The Màlikì Family Endowment, 384–86; Christian
Décobert, Le mendiant et le combattant (Paris: Éditions du Seuil, 1991), 22.
9
S. E. Mohamed Aly Pacha, “Le wakf est-il une institution religieuse? Les con-
séquences des wakfs ahli sur l’intérêt général, les motifs de ces wakfs,” L’Égypte con-
temporaine 18 (1927), 398–99; David S. Powers, “The Islamic Inheritance System:
A Socio-Historical Approach,” in Islamic Family Law, ed. Chibli Mallat and Jane
Conners (London and Boston: Graham and Trotman, 1990), 22. Powers’ article
can also be found (without the author’s permission) in Arab Law Quarterly 8 (1993),
13–29, esp. 23.
xvi
banùn), clients (mawàlì ), slaves (riqàq), and even neighbors ( jìràn). And
while the establishment of a waqf required founders to relinquish
possession and control of the endowed properties during their mor-
tal lives,10 founders acquired de facto “dead hand” control over the
distribution of the waqf ’s yields “until God inherits the Earth and
those on it.”11 Founders could specify that certain individuals should
receive more than others, concentrate all the usufruct in the hands
of a sole beneficiary, stipulate that males and females receive equally
from the waqf, or conversely, remove one of the genders (usually the
female)12 from the endowment entirely. Although it is tempting to
view the waqf as a cynical means for evading the 'ilm al-farà"i∂, it is
clear that the Muslim community considered these endowments to
be acts of piety, or at the very least, believed that the pious motives
of the founders’ actions justified circumventing the Qur"ànic inher-
itance verses.13
10
Muslim jurists never reached a consensus as to whom these endowed proper-
ties were conveyed. Some jurists contended that the waqf properties passed into the
possession of God, while other jurists held that they were ownerless. In either case,
the net result was the same—the founder was not considered to be the owner of
these properties, rendering the properties not subject to the 'ilm al-farà"i∂.
11
Qur"àn 19.40. This Qur"ànic expression is frequently mentioned in waqf deeds.
For example, it is found in a fourth-century A.H. waqf inscription from Ramla, the
waqf deed in the Kitàb al-Umm of al-Shàfi'ì, and two waqf deeds mentioned in the
A˙kàm al-Awqàf of al-Khaßßàf. Moshe Sharon, “Waqf inscription from Ramla, c. 300/
912–13,” BSOAS 60/1 (1997), 100; Mu˙ammad b. Idrìs al-Shàfi'ì, Kitàb al-Umm,
ed. Mu˙ammad Zuhrì al-Najjàr (Cairo: Maktabat al-Kulliyyàt al-Azhariyya, 1961),
4: 59; al-Khaßßàf, A˙kàm al-Awqàf, 14–15.
12
It is a widely held assumption that waqfs were used to privilege agnatic rela-
tions over cognates. See, e.g., Christian Décobert, Le mendiant et le combattant, 22,
where the author asserts that founders employed the waqf as a means to “pass over
cognates” and “disinherit women.” Likewise, Aharon Layish, in his article on Màlikì
family waqfs alleges that familial endowments were created primarily for a selected
group of agnatic descendants in order to establish “a kind of ‘patrimoine familial intan-
gible’ for descendants of the male line.” Layish, “The Màlikì Family Waqf According
to Wills and Waqfiyyàt,” BSOAS 46 (1983), 21–31, esp. 30–31. In his own study of
Màlikì family endowments, however, Powers has reached the opposite conclusion.
Based upon his examination of 101 fatwàs from the Kitàb al-Mi'yàr of A˙mad al-
Wansharìsì (1430–1508 C.E.), Powers contends that Màlikì waqfs “frequently sup-
plemented the rights of females,” rather than subverted their inheritance shares.
Powers, “The Màlikì Family Endowment,” 385.
13
The founder of a waqf existed within a social and moral economy in which
there existed multiple claims on his wealth. In a world circumscribed by obliga-
tions to one’s fellow human beings, the waqf emerged as the principal—and per-
haps best—means for fulfilling these charitable duties. The relationship of the waqf
to charity was discussed in more detail in the dissertation that preceded this book.
See Peter Charles Hennigan, “The Birth of a Legal Institution: The Formation of
xvii
A Question of Legitimacy
the Waqf in Third-Century A.H. Óanafì Discourse,” (Ph.D. diss., Cornell University,
1999), 232–47.
14
Heuschling, L’Empire de Turquie, 105. Cited in “Jurist,” “Waqf,” 173.
15
Eugène Clavel, Droit musulman. Le waqf ou habous d’après la doctrine et la jurispru-
dence (rites hanafite et malékite) (Cairo: Diemer, 1896), 1: 3. Cited in “Jurist,” “Waqf,”
173.
16
Clavel, Droit musulman, 1: 3. Cited in “Jurist,” “Waqf,” 173.
17
John Robert Barnes, An Introduction to Religious Foundations in the Ottoman Empire
(Leiden: E. J. Brill, 1986), 43–44, 83; Fuad Köprülü, “L’institution du Vakouf: Sa
nature juridique et son évolution historique,” Vakiflar Dergisi 2/3 (1942), French sec-
tion; Powers, “Orientalism, Colonialism, and Legal History,” 537.
18
Aziz Bey Hanki, Du wakf: Recueil de jurisprudence des tribunaux mixtes, indigènes et
mehkémehs chariehs, trans. from Arabic by Yacoub Hanki (Cairo: Imprimerie Menikidis
Frères, 1914), 9.
19
Hanki, Du wakf, 15; Powers, “Orientalism, Colonialism, and Legal History,”
537–38. As Powers notes in his article, “[w]ere it not for Nasser’s nationalization
of public endowments and abolition of family endowments, Hanki’s worst fears
might have materialized.” Powers, “Orientalism, Colonialism, and Legal History,”
538, n. 11.
xviii
20
A˙mad b. 'Alì b. Óajar al-'Asqalànì, Tahdhìb al-Tahdhìb (Hyderabad: Dà"irat
al-Ma'àrif al-'Uthmàniyya, 1325/1906), 4: 327. The longevity of Shuray˙’s life
appears to have taken on mythic proportions. One report in his biographical entry
(tarjama) alleges that he was 120 years old when he died, while another tradition
claims that he lived to be a truly remarkable 180 (!) years old. E. Kohlberg has
argued that this latter claim is a typographical error and should read “108.” EI 2,
s.v. “Shuray˙,” E. Kohlberg, 9: 509.
21
Hilàl al-Ra"y, A˙kàm al-Waqf, 5–6; al-Shàfi'ì, Kitàb al-Umm, 4: 53.
xix
to give a legal opinion to the Emigrants, but if I had said it, I do not
think that he ['Umar b. al-Kha††àb] would have made any of it a
ßadaqa.22
Opponents of the waqf could also point to ˙adìths in which the Prophet
reportedly stated that there would be “no ˙ubs after sùrat al-nisà"”23
and that “˙ubs is forbidden” (nahà 'an al-˙ubs).24
Equally problematic for jurists such as Hilàl and al-Khaßßàf was
the opposition of their school’s “founder,”25 Abù Óanìfa (d. 150/767),
to almost all pious endowments. Abù Óanìfa disagreed with waqf
proponents that the creation of a pious endowment created an “own-
erless property.” Citing another ˙adìth from Shuray˙, in which it was
reported that the Prophet allowed ˙ubs to be sold, Abù Óanìfa con-
tended that pious endowments remained in the control of their own-
ers and were subject to the laws of inheritance and bequest upon
their death.26 Abù Óanìfa made an exception for mosques, presum-
ably on the ground that ownership had passed to God.
If the arguments of those opposed to pious endowments had pre-
vailed, there would have been no waqf and (presumably) no waqf
treatises. Although the question of legitimacy dogged the earliest dis-
cussions of the waqf, these debates are largely absent from the two
treatises discussed here. This absence is not altogether surprising.
The resolution of fundamental questions—such as legitimacy—gen-
erally precede the production of legal treatises. Treatises emerge at
a stage in the legal culture when the broad outlines of branches of
law have stabilized and become recognizable, but the substantive law
remains somewhat ill-defined. Thus, it would be incorrect to view
Hilàl and al-Khaßßàf as inventing the law of waqf. Rather, their trea-
tises were the product/culmination of a multi-generational effort to
define the substantive law of this institution, and there is evidence
that their legal reasoning was at least partially built on the shoulders
22
Al-Khaßßàf, A˙kàm al-Awqàf, 7–8.
23
Abù Bakr A˙mad b. al-Óusayn b. 'Alì al-Bayhaqì, “Kitàb al-Waqf ” in Kitàb
al-Sunan al-Kubrà (Hyderabad: Dàr Íàdir, 1352 A.H.), 6: 162. Sùrat al-nisà" is the
chapter of the Qur"àn in which the inheritance verses (Qur"àn 4.8, 4.11–12, 4.176)
were revealed.
24
Abù Ja'far A˙mad b. Mu˙ammad al-ˇa˙àwì, Shar˙ al-Ma'ànì al-Àthàr (Cairo:
Ma†ba'at al-Anwàr al-Mu˙ammadiyya, 1968–?), 4: 97.
25
Whether Hilàl or al-Khaßßàf viewed themselves as members of a Óanafì “school”
and followers of Abù Óanìfa will be discussed in chapter one.
26
Hilàl al-Ra"y, A˙kàm al-Waqf, 1–16, esp. 5, 7, 12–13.
xx
of earlier jurists.27 Where the line between their original legal ideas
and those of earlier jurists should be drawn may never be known,
but external evidence indicates that the reason we call the institu-
tion a “waqf ” is related to the terminological efforts of these trea-
tise writers.
That said, the “birth” of the waqf as a legal institution required
more than the explication of the substantive law in the legal trea-
tises. It also required a legitmating superstructure. The waqf treatises
provide evidence of a bifurcation between substantive law and legal
legitimacy. While the substantive law of waqf was derived through
what Norman Calder has termed the “discursive tradition”—non-
exegetical legal reasoning often characterized by the qultu/qàla dialec-
tic—the legitimacy of the institution depended on an exegetical, or
“hermeneutic” superstructure that developed parallel to, and inde-
pendent of, the discursive legal reasoning in the waqf treatises.28 The
emergence of the waqf as a legal institution was therefore dependent
on these two different conceptions of legal authority, a somewhat
ironic footnote to the tensions that typified the relationship between
rationalist (non-exegetical) and traditionalist (exegetical) jurisprudents.
27
For example, Mu˙ammad b. al-Óasan al-Shaybànì (d. 189/804) reportedly
authored a treatise on the waqf—the Kitàb al-Wuqùf wa’l-Íadaqàt—and the waqf trea-
tises of Hilàl and al-Khaßßàf also relate the opinions of Abù Óanìfa (d. 150/767)
and Abù Yùsuf (d. 182/798), among others.
28
Norman Calder, Studies in Early Muslim Jurisprudence (Oxford: Clarendon Press,
1993), 7–8.
xxi
29
Wael B. Hallaq, “Was al-Shàfi'ì the Master Architect of Islamic Jurisprudence?”
IJMES 25 (1993), 587–606.
30
Hallaq, “Was al-Shàfi'ì the Master Architect?” 600.
31
Wael B. Hallaq, “From Regional to Personal Schools of Law? A Reevaluation,”
ILS 8 (2001), 1–26.
32
Jonathan E. Brockopp, “Competing Theories of Authority in Early Màlikì
Texts,” in Studies in Islamic Legal Theory, ed. Bernard G. Weiss (Leiden: Brill, 2002),
3–22.
33
For the problem of using the term “Óanafì” to describe third-century legal
discourse, see the introduction to chapter one.
xxii
This chapter begins, however, with the question of whether the law
of waqf might be derived from a foreign legal system. After exam-
ining the arguments for and against the various claims of foreign
influence, I offer an alternative approach to the question of foreign
borrowing. Instead of trying to identify “foreign” elements in waqf
law, I argue that the question of foreign influence may be better
explained by considering the development of waqf law from the per-
spective of the treatise writers. By the third-century A.H., Islamic
society had become increasingly heterogeneous through both con-
version and inter-marriage. Because Islamic law had not fully devel-
oped, it must be assumed that converts to Islam retained some of
their former practices. Thus, the task confronting jurists such as Hilàl
and al-Khaßßàf was how to bring order to what had become a wide
range of trust practices and terminologies. That some of these prac-
tices likely had antecedents in non-Arabian legal systems may explain
why so many theories for the origins of the waqf have been pro-
posed. But their presence does not make the waqf a “borrowed” insti-
tution. Rather, I argue that the waqf is a distinctly Islamic institution
that developed organically within an increasingly heterogeneous
Muslim community.
The remaining two sections of Chapter Three examine the ter-
minological birth of the signifier “waqf ” as a distinct form of prop-
erty conveyance within Islamic law. Section Two explores the
terminological confusion surrounding pious endowments and how the
signifier “waqf ”—or, more correctly, the juxtaposition of “ßadaqa”
and “mawqùfa”—was used to differentiate pious endowments from
other forms of charitable giving and simple gifts. Section Three exam-
ines how the treatise writers created a legal space for the waqf within
the Islamic inheritance system. In this section I argue that the waqf
constitutes the last piece of the puzzle that is the Islamic inheritance
system, since the waqf ’s substantive law is dependent on, and sub-
ordinate to, the doctrines of intestacy, testacy and death-sickness.
The final chapter of the book takes the reader outside the waqf
treatises to examine the waqf ’s legitimating hermeneutical super-
structure. This movement away from substantive law and into the
question of the waqf ’s exegetical legitimacy is presaged by the col-
lection of ˙adìths that foreground al-Khaßßàf ’s treatise. This intro-
ductory collection of ˙adìths highlights the bifurcated legal construction
of the waqf within Islamic law: while the treatise writers would
develop the substantive law of waqf from within a legal discourse
xxiii
that paid scant attention to the past, the institution’s legitimacy ulti-
mately hinged on establishing exegetical/hermeneutical links to the
Prophet and the early Muslim community. Relying on G. H. A.
Juynboll’s isnàd analysis, I demonstrate that while these traditions
cannot be considered historically authentic, they were nonetheless
sufficiently “convincing” to confer legal legitimacy to the institution.
The threads that bind this wide-ranging discussion are both the
treatises and the questions of (il)legitimacy that haunted the earliest
discussions of pious endowments within Islamic legal discourse. The
issues addressed in this book, however, have relevance beyond the
narrow confines of trust law, for they touch upon styles of legal writ-
ing and argumentation, the values and norms of legal cultures, and
the development of Islamic law in the third century. Of course, I
am also mindful of Christopher Melchert’s admonition in his review
of Brockopp’s Early Màlikì Law that writing on one or two texts raises
the “inherent danger of . . . distortion of [their] place in history, [and]
presenting as important and original what was actually common-
place of its time.”34 Melchert’s concern is well-founded, but I also
believe that narrowly focused studies can provide the building blocks
for larger synthetic surveys of this period. The fact that there are
meaningful differences between the waqf treatises discussed here and
the Màlikì texts examined by Brockopp indicates that we still have
much to learn about third-century legal discourse and culture.
34
Christopher Melchert, “Review of Early Màlikì Law: Ibn 'Abd al-Óakam and His
Major Compendium of Jurisprudence,” by Jonathan E. Brockopp, ILS 9 (2002), 273.
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CHAPTER ONE
1
Nurit Tsafrir, “Semi-Óanafìs and Óanafì Biographical Sources,” Studia Islamica
84 (1996), 68 (defining “unquestionable” Óanafìs as those who “both studied under
Óanafì teachers and had Óanafì students, and also those of whom we know that
they wrote Óanafì law books.”).
2
Christopher Melchert, The Formation of the Sunni Schools of Law, 9th–10th Centuries
C.E. (New York and Leiden: Brill, 1997), 33.
3
Wael B. Hallaq, Authority, Continuity, and Change in Islamic Law (Cambridge:
Cambridge University Press, 2001), 30–31.
2
Hilàl al-Ra"y
Of the two men, we know the least about Hilàl al-Ra"y. According to
the sources, Hilàl’s full name was Hilàl b. Ya˙yà b. Muslim al-Baßrì.8
4
Joseph Schacht, The Origins of Muhammadan Jurisprudence (Oxford: Clarendon
Press, 1950), 6.
5
Hallaq, “From Regional to Personal Schools of Law?” 37–64; Nimrod Hurvitz,
“Schools of Law and Historical Context: Re-Examining the Formation of the Óanbalì
Madhhab,” ILS 7 (2000), 37–64.
6
Hallaq, “From Regional to Personal Schools of Law?” 26.
7
Brockopp, “Competing Theories of Authority in Early Màlikì Texts,” 3–22.
8
Abù Mu˙ammad 'Abd al-Qàdir Ibn Abì al-Wafà", Al-Jawàhir al-Mu∂iyya fì
ˇabaqàt al-Óanafiyya (Hyderabad: Dà"irat al-Ma'àrif al-NiΩàmiyya, 1332/1914), 2:
207; Khayr al-Dìn al-Ziriklì, Al-A'làm, 2d ed. (Cairo, 1954 –59), 9: 95; Carl
à -" -ßßà 3
His kunya (surname) was Abù Bakr,9 but he acquired the eponym
“al-Ra"y” due to his great knowledge ('ilm),10 and/or his reliance on
independent reasoning (ra"y),11 and/or his use of analogical reason-
ing (qiyàs).12 He received his training from Zufar b. al-Hudhayl
(d. 158/774) and Abù Yùsuf (d. 182/798),13 two of Abù Óanìfa’s
most important students.14 The initial encounter between Abù Yùsuf
and Hilàl is described in the Akhbàr Abì Óanìfa wa-Aß˙àbihi of al-
Íaymarì (d. 436/1044). According to the report, Abù Yùsuf came
to Baßra and asked the aß˙àb al-˙adìth (traditionalists) and the aß˙àb
al-ra"y (rationalists) a legal question concerning compensation for
destruction of a seal. When the aß˙àb al-˙adìth were unable to reach
a single answer, Hilàl stood up from among the aß˙àb al-ra"y, answered
correctly, and received the praise of his future teacher.15 In addition
to writing the A˙kàm al-Waqf, Hilàl is credited with writing the first
work on commercial transactions and contracts (Kitàb Tafsìr al-Shurù†),16
a treatise on legal punishments (Kitàb al-Óudùd ),17 as well as a work
on pleading at court (Kitàb al-Mu˙àdara).18 Hilàl was also the teacher
of Abù Khàzim (d. 292/905), and Bakkàr b. Qutayba (d. 270/884),
Al-Khaßßàf
19
Melchert, The Formation of the Sunni Schools of Law, 116, 118, 123 (citing al-
Kaffawì, Katà"ib a'làm al-akhyàr min fuqahà" madhhab al-Nu'màn al-mukhtàr (East Efendi,
Istanbul, 548 A.H.), 65b; al-Kha†ìb al-Baghdàdì, Ta"rìkh Baghdàd aw madìnat al-salàm
(Cairo: Maktabat al-Khànjì, 1931), 11: 63). Melchert has argued that either al-
ˇa˙àwì or Abù Khàzim could be considered the founders of the classical Óanafì
school that formed in the fourth/tenth century.
20
Melchert, The Formation of the Sunni Schools of Law, 11, 43 (citing al-Baghdàdì,
Ta "rìkh, 5: 409).
21
Óajjì Khalìfa gives the common era dates of Hilàl’s death as April 8, 859 or
February 24, 863. Óajjì Khalìfa, Kashf al-¸unùn, 1: 175, 4: 46.
22
Al-Ziriklì, Al-A'làm, 1: 178; Ibn al-Nadìm, Al-Fihrist, 1: 428; Óajjì Khalìfa, Kashf
al-¸unùn, 1: 175.
23
Al-Khaßßàf, Kitàb Adab al-Qà∂ì, ed. Far˙àt Ziyàda (Cairo: The American
University in Cairo Press, 1978), 3.
24
Al-Khaßßàf, Kitàb al-Nafaqàt, ed. Abù al-Wafà" al-Afghànì (Beirut: Dàr al-Kutub
al-'Arabì, 1404/1984), 8; al-Ziriklì, Al-A'làm, 1: 178.
à -" -ßßà 5
gave such and such answer, but that is wrong! The answer is such
and such, may God have mercy on whoever reports it to one who
ought to know it.25
Unfortunately, nothing else is known about the length of al-Khaßßàf ’s
tenure as qà∂ì or the level of his position. Based upon these sources,
it does not appear that al-Khaßßàf ever attained the position of “chief
qà∂ì” (qà∂ì al-qu∂àt) as the title page to the A˙kàm al-Awqàf alleges.26
As a jurist, al-Khaßßàf was known for his expertise in the calcu-
lation and division of inheritance shares (kàna faqìhan fàri∂an—or
far∂iyyan—˙àsiban),27 and as a prolific author of legal texts. Of the
fourteen books he allegedly produced, only five remain extant: the
A˙kàm al-Awqàf, a treatise on the decorum and practices of jurists
(Kitàb Adab al-Qà∂ ì), a discussion of legal fictions (Kitàb al-Óiyal ), a
work on expenditures and maintenance (Kitàb al-Nafaqàt), and a trea-
tise on wet-nurses and foster relationships (Kitàb al-Ri∂à' ).28 The nine
works which no longer exist covered areas of bequest law (Kitàb al-
Waßàyà), inheritance law (Kitàb Iqràr al-Waratha), taxation (Kitàb al-
Kharàj ), the maintenance provided for close relations (Kitàb al-Nafaqàt
'alà al-Aqàrib), contracts (Kitàb al-Shurù† al-Kabìr and Kitàb al-Shurù† al-
Íaghìr), court documents and records (Kitàb al-Ma˙à∂ir wa"l-Sijillàt),
the rules for prayer (Kitàb al-'Aßr 29 wa-A˙kàmihi wa-Óisàbihi ), and a
discussion of the holy sites in Mecca and Madìna (Kitàb Dhar' al-
Ka'ba wa"l-Masjid wa"l-Qabr).30
The few records that mention al-Khaßßàf suggest that his life ended
in disgrace and failure. Unlike Hilàl, who seems to have remained
on the periphery of political power (perhaps voluntarily), al-Khaßßàf
25
Ibn Abì al-Wafà", Al-Jawàhir (Hyderabad, second printing, 1408/1988), 1: 142;
Taqì al-Dìn b. 'Abd al-Qàdir al-Tamìmì, Al-ˇabaqàt al-Saniyya fì Taràjim al-Óanafiyya,
ed. 'Abd al-Fattà˙ Mu˙ammad A˙mad al-Óilw (Riyad, 1983), 1: 419. Credit should
be given to Patricia Crone for bringing these sources to my attention and provid-
ing me with their translation.
26
Not only do none of the biographical entries make this claim, but al-Khaßßàf
is also absent from the list of qà∂ì al-qu∂àh in the Akhbàr al-Qu∂àh of Wakì', 3:
294–324.
27
Al-Khaßßàf, Kitàb Adab al-Qà∂ì, 3; idem, Al-Nafaqàt, 7; al-Ziriklì, Al-A'làm, 1:
178; Ibn al-Nadìm, Al-Fihrist, 1: 428.
28
These five works are the only ones mentioned in Sezgin, Geschichte, 1: 436–38.
29
The Fihrist gives the spelling of this word as “al-'Aßìr ” which refers to the juice
that is extracted from a grape. It is difficult to see how this meaning could pertain
to the remainder of the book’s title. The word “al-'Aßr,” on the other hand, pro-
vides a meaning more consistent with the rest of the title.
30
Ibn al-Nadìm, Al-Fihrist, 1: 428.
6
31
Abù Ja'far Mu˙ammad b. Jarìr al-ˇabarì, Ta"rìkh al-Rusul wa"l-Mulùk, ed.
Mu˙ammad Abù al-Fa∂l Ibràhìm (Cairo: Dàr al-Ma'àrif, 1960–69), 9: 371.
32
Christopher Melchert, in his gloss of this passage, writes that the term “Ràfi∂a”
probably indicates those Shì'a who preferred 'Alì b. Abì ˇàlib to Abù Bakr and
'Umar b. al-Kha††àb. The term appears to have originated with the uprising of
Zayd b. 'Alì against the 'Umayyads in 122/740. Some of the Kùfans who had
joined Zayd’s uprising eventually deserted (rafa∂a) him when Zayd refused to reject
Abù Bakr and 'Umar. Melchert, “Religious Policies of the Caliphs from al-Mutawakkil
to al-Muqtadir, A.H. 232–295/A.D. 847–908,” ILS 3/3 (1996), 332, n. 89; idem,
“The Adversaries of A˙mad Ibn Óanbal,” Arabica 44 (1997), 236–37; EI 2, s.v. “Al-
Ràfi∂a,” E. Kohlberg, 8: 386–89.
33
The term “Qadariyya” is commonly used to denote a group of theologians
who advocated the principle of free will during the late first and second centuries
A.H. They are considered precursors to the Mu'tazila of the third century A.H.
EI 2, s.v. “adariyya,” J. van Ess, 4: 368–72.
34
Melchert states that the Zaydiyya consisted of those Shì'a who preferred 'Alì
to 'Uthmàn. The Zaydiyya were also reported to have believed in the created
Qur"àn. The term “Zaydiyya” appears to have emerged in connection with the
Ràfi∂a split from Zayd’s uprising. Melchert, “Religious Policies of the Caliphs,”
332, n. 89; idem, “The Adversaries of A˙mad Ibn Óanbal,” 238; EI 2, s.v. “Al-
Ràfi∂a,” E. Kohlberg, 8: 386–87.
35
Al-ˇabarì, Ta"rìkh, 9: 371. The chief view associated with the Jahmiyya was
a belief in the createdness of the Qur"àn. Montgomery Watt, however, has con-
cluded that the term “Jahmite” was a purely vituperative term meaning something
like ‘renegade’ or ‘quisling’ and that there never was a body of men who were fol-
lowers of Jahm b. Íafwàn (d. 128/746) or who professed to be such. Rather, Watt
argues that the “Jahmiyya” sect was a creation of heresiographers. Watt speculates
that the doctrine of the createdness of the Qur"àn was placed on the sect’s “founder,”
Jahm b. Íafwàn, in order to dissociate the Óanafìs from the doctrine. W. Montgomery
Watt, The Formative Period of Islamic Thought (Edinburgh: Edinburgh University Press,
1973), 147–48.
à -" -ßßà 7
36
Al-ˇabarì, Ta"rìkh, 9: 371.
37
Ibn al-Nadìm, Al-Fihrist, 1: 428; Al-Khaßßàf, Kitàb Adab al-Qà∂ì, 4. See prior
discussion on the lack of any true adherents to the Jahmiyya sect, supra.
38
Ibn al-Nadìm, Al-Fihrist, 1: 428.
39
Ibn al-Nadìm, Al-Fihrist, 1: 428.
40
Melchert, “Religious Policies of the Caliphs,” 338; al-ˇabarì, Ta"rìkh, 9: 392–93,
459–61, 467.
41
Ibn al-Nadìm, Al-Fihrist, 1: 428; al-Ziriklì, Al-A'làm, 1: 178. The ransacking of
al-Khaßßàf ’s home may also account for the nine missing texts.
42
Óajjì Khalìfa gives the common era date of al-Khaßßàf ’s death as October
16, 874. Óajjì Khalìfa, Kashf al-¸unùn, 1: 175.
8
43
Our knowledge about the third century has been limited by the fact that most
historical studies of the schools of law have tended to skip over the era in which
they were formed and begin in the fourth century A.H. See Hallaq Authority, Continuity,
and Change in Islamic Law, xii, 171, n. 21; Hurvitz, “Schools of Law and Historical
Context,” 40. Melchert has observed that the Islamic tradition itself views the begin-
ning of the fourth Islamic century “as a watershed, the dividing line between the
ancients and the moderns.” Melchert, “Traditionist-Jurisprudents and the Framing
of Islamic Law,” ILS 8 (2001), 406. We do, however, know something about the
motivations and values of a later Islamic legal culture from the work of Michael
Chamberlain on the learned elite of Damascus during the period 1190–1350 C.E.
Chamberlain discusses how the acquisition of 'ilm (knowledge) led to monetary gain
and granted a form of social honor known as ˙urma. Chamberlain argues that pres-
tige itself became the “elusive prize” of the competitive struggle within the 'ulamà"
class. Michael Chamberlain, Knowledge and Social Practice in Medieval Damascus, 1190–1350
(Cambridge: Cambridge University Press, 1994), 64–66, 92, 153–56, 175–78.
44
Consider, for example, the modern, printed editions al-ˇabarì’s two monu-
mental works—his thirty volume tafsìr of the Qur"àn and his ten volume history of
the world. The enormity of these works suggests an ego that sought to create a
form of immortality for itself. And, to a large extent, al-ˇabarì succeeded. His tafsìr
is so enormous, and so all-encompassing, that no one has ever attempted to write
anything similar to it. Likewise, the breadth of his Ta"rìkh not only brought to a
close a genre of historical writing on the early Muslim community, but also appears
to have discouraged the writing of universal histories for several centuries. As Claude
Cahen observed, the Ta"rìkh could be described as a “swan-song” because “it was
impossible for it to be pursued further.” Cahen, “History and Historians,” in Religion,
Learning and Science in the 'Abbàsid Period, eds. M. J. L. Young, J. D. Latham, and
R. B. Serjeant (Cambridge: Cambridge University Press, 1990), 199.
45
Zaman and Hurvitz are among the few scholars to see through the hagio-
à -" -ßßà 9
graphical shroud that has been placed over early Muslim jurists. Zaman has argued
that jurists may have been motivated to seek employment in government bureaus
“by purely economic exigencies, by some taste for prestige and power in society.”
Muhammad Qasim Zaman, Religion and Politics Under the Early 'Abbàsids: The Emergence
of the Proto-Sunnì Elite (Leiden: E. J. Brill, 1997), 153, 161. Hurvitz has observed
that masters desired “status” within their circles, and that relationships with the
caliphal court may have attracted disciples. Hurvitz, “Schools of Law and Historical
Context,” 46. Cf. David S. Powers, Law, Society and Culture in the Maghrib, 1300–1500
(Cambridge: Cambridge University Press, 2002), 54, 92 (remarking that the “mock-
ing jurist” Mùsà b. Yamwìn al-Haskùrì “climb[ed] the ladder of scholarly success”
and that he may have been a victim of a plot hatched by “jealous colleagues”).
46
It is an interesting question whether legal cultures are more hierarchically ori-
ented than other professional cultures. Certainly, the nature of legal authority places
a great emphasis on hierarchy. Hierarchy grants some courts jurisdiction to review
the decisions of other courts, and the opinions of certain judges will carry more
weight (and in some cultures will act as binding precedents on lower court judges)
simply by virtue of the judge’s position within the hierarchy.
47
See, e.g., Jonathan E. Brockopp, Early Màlikì Law: Ibn 'Abd al-Óakam and his
Major Compendium of Jurisprudence (Leiden: Brill, 2000), 64.
48
There is some overlap between the terms “jurist” and “jurisprudent.” Jurisprudents
generally take a philosophical approach to the law, whereas jurists are typically
more interested in the law’s practical and concrete details. Although both jurists
and jurisprudents can be scholars, the term “jurist” encompasses a broader range
of avocations—judging, the writing of legal manuals, and employment in govern-
ment bureaus.
10
49
Brockopp, Early Màlikì Law, 32.
50
Hallaq, Authority, Continuity, and Change in Islamic Law, 168–69.
51
See I. M. Lapidus, “The Separation of State and Religion in the Development
of Early Islamic Society,” IJMES 6 (1975), 365–85; idem, “The Evolution of Muslim
Urban Society,” Comparative Studies in Society and History, 15 (1973), 21–50; idem, A
History of Islamic Societies (Cambridge: Cambridge University Press, 1988), 120ff. Crone
has reached a similar conclusion regarding the separation of religion from the state,
albeit on different grounds, in Slaves on Horses: The Evolution of the Islamic Polity
(Cambridge: Cambridge University Press, 1980), 61–91.
52
For Sufyàn al-Thawrì, see Zaman, Religion and Politics Under the Early 'Abbàsids, 79.
53
Zaman, Religion and Politics Under the Early 'Abbàsids, 79, 158.
54
Zaman, Religion and Politics Under the Early 'Abbàsids, 149–59, 211; idem, “The
Caliphs, the 'Ulamà", and the Law: Defining the Role and Function of the Caliph
in the Early 'Abbàsid Period,” ILS 4/1 (1997), 5, 19.
à -" -ßßà 11
Hilàl and al-Khaßßàf are far from complete, al-Khaßßàf ’s life, in parti-
cular, indicates that his scholarly interests were equally matched by a
desire to attain appointments within the 'Abbàsid administration. In
addition to authoring fourteen legal treatises, al-Khaßßàf was a qà∂ì
and ultimately served in the caliph’s administration, suggesting that
judicial and administrative appointments within the 'Abbàsid regime
were highly prized positions for at least a subset of third-century jurists.
But if such judicial and administrative positions were at the top
of the hierarchy of values in this legal culture, how did jurists dis-
tinguish themselves to attain these prized positions? One possible
explanation is through the production of legal texts.55 Instead of view-
ing al-Khaßßàf ’s scholarship as simply an end to itself, it is worth
considering whether the production of legal texts defined the arena
in which jurists competed against and ranked one another, and
whether the production of these texts opened the door to judicial
and administrative appointments.56 Al-Khaßßàf ’s substantial output of
legal material may explain his relative success in attaining these
prized appointments in comparison to Hilàl. Admittedly, since we
know almost nothing about Hilàl’s aspirations, his lack of advance-
ment in the 'Abbàsid administration may have also been a volun-
tary decision not to pursue this career path. It is also possible—even
likely—that other factors unrelated to the production of legal texts,
such as political ideology and personal connections, affected the tra-
jectory of each man’s professional life.
Clearly, these conclusions about the values and standards of early
Islamic legal culture are speculative. Whether the sources for this
period will provide enough details to fill out this picture remains an
55
If Zaman is correct that the production and “publication” of books in the
early Islamic period required substantial monetary resources, then there may have
been a symbiotic relationship between the production of legal texts and the secur-
ing of patrons and political appointments. Zaman, Religion and Politics Under the Early
'Abbàsids, 163.
56
The “arenas” within which this competition occurred were not static, but
changed as Islamic legal culture evolved. For example, in his examination of the
classical madrasas, George Makdisi observed that ˙adìth memorization, disputations
between students, and stipend allotments all provided arenas in which aspiring law
students could rank themselves. Makdisi, The Rise of Colleges: Institutions of Learning in
Islam and the West (Edinburgh: Edinburgh University Press, 1981), 75–187, esp.
91–98, 133–40, 171–75. By contrast, the waqf treatises suggest that the legal cul-
ture in which al-Khaßßàf and Hilàl competed placed little emphasis on ˙adìth mem-
orization (see chapters two and three).
12
Historical Memory
57
Brockopp, “Early Islamic Jurisprudence in Egypt: Two Scholars and their
Mukhtaßars,” IJMES 30 (1998), 172–73, 177.
58
Melchert, The Formation of the Sunni Schools of Law, 60.
à -" -ßßà 13
59
Abù Bakr Mu˙ammad b. Abì Sahl al-Sarakhsì, Kitàb al-Mabsù† (Cairo: Ma†ba'at
al-Sa'àda, 1906–13), 12: 27–47. For example, in a section on waqfs, al-Sarakhsì
mentions that al-Khaßßàf and Hilàl each wrote one work on the subject, but he
never refers to their opinions when citing authority statements. Instead, al-Sarakhsì
refers to the opinions of Abù Óanìfa, Abù Yùsuf, Mu˙ammad b. al-Óasan al-
Shaybànì, and Màlik b. Anas.
60
This seven-tier typology of authority, and its origins, is discussed in more detail
in Hallaq’s Authority, Continuity, and Change in Islamic Law, 14–17.
61
Mu˙ammad Amìn b. 'Umar b. 'Àbidìn, Rasà"il (Beirut: Mu"assasat Fu"àd,
1978), 1: 11–13; 'Abd Allàh al-Ma"mùn Suhrawardy, “The Waqf of Moveables,”
Journal and Proceedings of the Asiatic Society of Bengal, 7 n.s. (1911), 330–31.
62
The Granadan theorist Abù Is˙àq al-Shà†ibì (d. 790/1388) defined takhrìj as
investigating the texts in order to extract what is otherwise an unspecified ratio legis,
or legal inference. See Wael B. Hallaq, A History of Islamic Legal Theories (Cambridge:
Cambridge University Press, 1997), 201.
63
See Hallaq, Authority, Continuity, and Change in Islamic Law, 30–31. At one time
Melchert believed that traditionist-jurisprudents had provoked Óanafìs to “tradi-
tionaliz[e] their own jurisprudence” by assigning their doctrines to venerable jurispru-
dents such as Abù Óanìfa instead of local opinion or practice. Melchert, The Formation
14
within the Óanafì school (as well as the other schools of law) became
fixated on the school’s earliest founders—Abù Óanìfa, Abù Yùsuf
and Mu˙ammad b. al-Óasan al-Shaybànì—transforming al-Khaßßàf
and Hilàl into mere footnotes in the development of the school.
The current state of historical scholarship on the third century
A.H. reveals that the study of this period is still at the stage of devel-
oping competing theories and it may be some time before any con-
vincing conclusions can be drawn about the contours of this early
legal culture, the development of the schools of law, and the aspi-
rations and motivations of the juristic and jurisprudential classes.64
As Brockopp has observed, however, the study of “second-rank”
jurists during the formative era “helps to deepen and complicate our
understanding of this important period.”65 The biographies of al-
Khaßßàf and Hilàl support the wisdom of Brockopp’s approach, not
so much for what they can tell us about early Islamic legal culture—
the information is too sketchy to draw firm conclusions—but rather
for raising new questions about the norms and values of jurists dur-
ing this formative period of Islamic law.
of the Sunni Schools of Law, 48. Melchert has since retracted this claim. Melchert,
“Traditionist-Jurisprudents and the Framing of Islamic Law,” ILS 8 (2001), 400–01.
It is also interesting to note than an opponent of the aß˙àb al-ra"y, Ibn Qutayba
(213–276/828–889), seemingly adopted this typology prior to the canonization of
Abù Óanìfa and his two disciples in the fourth-century Óanafì school commen-
taries. In his list of rationalists, Ibn Qutayba omits al-Khaßßàf and Hilàl, even though
the literary output of the former was formidable and almost certainly known to Ibn
Qutayba. Instead, Ibn Qutayba’s list of rationalists is limited to a mere nine second-
century figures: Ibn Abì Laylà, Abù Óanìfa, Rabì'a al-Ra"y, Zufar b. al-Hudhayl,
al-Awzà'ì, Sufyàn al-Thawrì, Màlik b. Anas, Abù Yùsuf, and Mu˙ammad b. al-
Óasan al-Shaybànì. Ibn Qutayba, Kitàb al-Ma'àrif (Cairo: Dàr al-Ma'àrif bi-Mißr,
1969), 676–77.
64
As Michael Cook has observed, “We know how to maintain rival theories; but
we can do little to decide between them.” Cook, Early Muslim Dogma (Cambridge:
Cambridge University Press, 1981), 155 (emphasis in original).
65
Brockopp, Early Màlikì Law, 63.
CHAPTER TWO
1
Hilàl al-Ra"y, A˙kàm al-Waqf, 341.
2
Hilàl al-Ra"y, A˙kàm al-Waqf, 341.
3
Hilàl al-Ra"y, A˙kàm al-Waqf, 341.
4
Hilàl al-Ra"y, A˙kàm al-Waqf, 341.
5
Hilàl al-Ra"y, A˙kàm al-Waqf, 341.
16
6
Sezgin, Geschichte, 1: 435–37.
7
Thanks is owed to Professor Gilbert P. Verbit for making available to me a
photocopy of the introduction to the A˙kàm al-Awqàf from the British Library’s four-
teenth-century C.E. manuscript (Or. 9143).
8
It should be noted that there is a slight discrepancy between the chapters of
the two editions. Of the seventy-eight chapters listed in the manuscript copy, all
but three—chapters 13, 18, and 75—are found in the 1904 Cairo version of the
A˙kàm al-Awqàf (see Appendix B). Whether this difference in the table of contents
is reflected in the actual text of the 1904 Cairo edition is not known—the portion
of the A˙kàm al-Awqàf that Professor Verbit sent me did not cover the chapters in
question. Nevertheless, in spite of these discrepancies, the similarities between the
two texts outweigh their smaller differences.
WAQF 17
9
The text reads “100 dirhams,” but this is almost certainly a typographical error.
10
Hilàl al-Ra"y, A˙kàm al-Waqf, 224–25. Other instances of conscious ordering
can be found on pages 139, 166, 277, 298, and 307.
11
Hilàl al-Ra"y, A˙kàm al-Waqf, 66.
18
12
Al-Khaßßàf, A˙kàm al-Awqàf, 280–81. Page 125 provides another instance where
conscious ordering occurs.
13
This chapter is found on pages 245–64 of the A˙kàm al-Awqàf of al-Khaßßàf.
14
Hilàl al-Ra"y, A˙kàm al-Waqf, 222, 279. For example, the qàla figure answers
“Yes” to the following question: “What is your opinion if it were the case that [the
founder] said, ‘Íadaqa mawqùfa for my kin relations,’ and the distribution of the yields
began with those nearest to the founder and then the next closest in relation?”
15
Al-Khaßßàf, A˙kàm al-Awqàf, 212. Some parts of this section are repeated on
pages 278–80.
WAQF 19
16
Al-Khaßßàf, A˙kàm al-Awqàf, 64.
17
See, e.g., the chapters beginning on pages 52, 61, 90, 93, 97 and 104 of al-
Khaßßàf ’s treatise.
20
18
Brockopp, Early Màlikì Law, 90–92.
19
Brockopp, Early Màlikì Law, 91.
20
See, e.g., Melchert, “Review of Early Màlikì Law,” 273 (“Students of Islamic
law need to develop uniform technical terms, and we should probably all test
Brockopp’s terminology on our own data.”).
21
Brockopp, Early Màlikì Law, 92.
WAQF 21
Qultu/Qàla Dialectic
The dominant literary convention used in both works is the dialec-
tical interplay between the “I said” (qultu) and “He said” (qàla) figures.
The qultu/qàla form of literary presentation is common to Óanafì
and Màlikì legal texts from the second and third Islamic centuries.22
Frequently, the dialectic is used in conjunction with the phrase “What
is your opinion?” (a-ra"ayta) which serves to introduce and extend the
dialectical conversation:
I said: What is your opinion (a-ra"ayta) of a man who says, “This land
of mine is a ßadaqa mawqùfa to God the Exalted in perpetuity for
'Abd Allàh and Zayd”?
He said: The yields are between the two of them in halves.
I said: What is your opinion (a-ra"ayta) if one of them dies?
He said: The one who remains is entitled to one-half of the yields.
And the remaining [one-half ] is for the poor and the destitute.
I said: And likewise if he named a group and some of them die?
He said: Yes.
I said: What is your opinion (a-ra"ayta) if it were the case that he had
said, “This land belonging to me is a ßadaqa mawqùfa for the chil-
dren of 'Abd Allàh and they are so-and-so and so-and-so.”
He said: Then the yields are between the two of them in their entirety.23
22
Calder, Studies, 10; Brockopp, “Early Islamic Jurisprudence in Egypt,” 171.
23
Hilàl al-Ra"y, A˙kàm al-Waqf, 273–74.
22
24
See Calder, Studies, 9–10, 50–51, 146; Brockopp, “Early Islamic Jurisprudence
in Egypt,” 167–82, esp. 171–72.
25
In his study of the Mukhtaßar of Ibn 'Abd al-Óakam, Brockopp has discussed
a passage in which the appellation of the qàla figure is rather ambiguous. In such
cases, Brockopp has suggested that the qàla figure might refer to either the author
of the text, the previous authority cited—in Brockopp’s case, Màlik b. Anas—, or
an unspecified third source. Brockopp further speculates that this ambiguous use of
the qàla figure could “merely be a literary device.” Brockopp, “Early Islamic Juris-
prudence in Egypt,” 171.
26
Hilàl al-Ra"y, A˙kàm al-Waqf, 2.
27
Hilàl al-Ra"y, A˙kàm al-Waqf, 3.
28
Calder, Studies, 50. Paradoxically, in a later section of his book, Calder implies
that the use of phrases such as “qàla Abù Óanìfa” are little more than literary
devices: “The use of formulaic phrases of the type qàla Abù Yùsuf, qàla Màlik, or
qàla al-Shàfi'ì is of no significance in assessing the authenticity of attributions. In
fact, they are likely to signal redaction posterior to the life of the named author-
ity.” Ibid., 146.
WAQF 23
taught (or been subject to) a Socratic form of teaching knows, the
questioner controls the discussion. That is why in contemporary law
schools the professor, not the students, asks the questions. If the sit-
uation were reversed (as it is in the waqf treatises), one would expect
a transcript of the classroom to be digressive and disjointed as stu-
dents pursued tangential and unrelated issues in the course of their
questioning. The dialogues in the waqf treatises, by contrast, are
never digressive, suggesting that either the qultu figure was an amaz-
ingly gifted student who always asked the next logical question, or
that the conversations were “literary technique[s] for the presenta-
tion of the law” rather than the record of actual exchanges between
a master and his student(s).29 Given the nature of teacher-student
interactions, the conclusion that the qultu figure is a literary device
rather than a real person30 seems more correct. Unless of course,
historians have got it backwards and the qultu figure is the teacher.
The waqf treatises do not support this revisionist position, but it is
an intriguing observation.
Expository Voice
The expository voice is used in the waqf treatises to explicate the
subtle distinctions and principles underlying the qàla figure’s responses.
In contrast to the standard qultu/qàla exchange in which the qàla
figure merely provides a (terse) answer to the question posed, the
expository voice is used to explain the qàla figure’s legal reasoning.
For example, in the following passage Hilàl employs the expository
voice—and an analogy (qiyàs) to bequest law—to explicate the principle
29
Calder, Studies, 10. Calder is careful to note that while the qultu/qàla dialogue
may not be authentic, it may “reflect a discursive Sitz im Leben.” At a later point
in his work, however, he argues that it is possible to identify the qultu figure in
some parts of Hilàl’s treatise: “A small number of ikhtilàf passages, again mostly
near the beginning, give expression to the usual tripartite division of opinion in the
Óanafì tradition with third-person reference to Abù Óanìfa and Abù Yùsuf, together
with a first-person reference, qawlu-nà. In this formulation the qultu-figure is under-
stood as Mu˙ammad b. al-Óasan [al-Shaybànì].” Calder bases this assertion on the
widespread influence of al-Shaybànì on third-century Óanafì texts. Calder, Studies,
49–50.
30
Calder, Studies, 10. Calder writes, “It is possible, however, that the qultu figure
was never intended to be a historical person, but was from the beginning a draft-
ing device; it certainly functions as such.”
24
31
Hilàl al-Ra"y, A˙kàm al-Waqf, 78. This is the beginning of a long qultu/qàla
dialogue that culminates in the principle revealed on pages 80–81.
32
In the first example, Hilàl knew how many people were involved so it was
easy to say, “half the waqf for so-and-so the son of so-and-so, and the other half is
invalid.” In the second case, however, the number of descendants is indeterminate.
33
I.e., Hilàl cannot determine how much of the waqf should be invalidated with-
out knowing the exact number of grandchildren and progeny.
34
Implicit within this discussion is the principle that individuals cannot make a
bequest (waßiyya) for themselves. Consequently, if a waqf is analogous to a bequest,
then it cannot be made for oneself.
WAQF 25
35
Hilàl al-Ra"y, A˙kàm al-Waqf, 80–81. Hilàl’s use of an analogy (qiyàs) drawn
from bequest law is a common argumentative technique found in both waqf trea-
tises and will be discussed in more detail below.
26
Past Authorities
The third type of voice present in the waqf treatises is that belong-
ing to second-century A.H. Óanafì jurisprudents or members of the
early Islamic community. In some contexts, these voices appear as
ikhtilàf, or statements of dispute, which contrast the opinions of Abù
Óanìfa, Abù Yùsuf, Mu˙ammad b. al-Óasan al-Shaybànì, and “Baßran
jurists” on areas of waqf law. According to Calder, al-Khaßßàf ’s waqf
treatise contains “no ikhtilàf.”39 Although ikhtilàfs in al-Khaßßàf ’s waqf
treatise are not as prevalent as in Hilàl’s work,40 there are several
36
Hilàl al-Ra"y, A˙kàm al-Waqf, 47.
37
Hilàl al-Ra"y, A˙kàm al-Waqf, 233–35; al-Khaßßàf, A˙kàm al-Awqàf, 149–51.
38
Hilàl al-Ra"y, A˙kàm al-Waqf, 72–78.
39
Calder, Studies, 50. Melchert was aware that ikhtilàfs are present in the A˙kàm
al-Awqàf of al-Khaßßàf, but he did not connect this observation back to Calder’s
erroneous conclusion. Melchert, “Religious Policies of the Caliphs,” 336.
40
In the A˙kàm al-Waqf of Hilàl, the most concentrated area of ikhtilàfs occurs
in the introductory section which stretches from pages 2–17. An additional ikhtilàf
between Abù Yùsuf and Abù Óanìfa can be found on page 212, and an ikhtilàf
WAQF 27
44
Hilàl al-Ra"y, A˙kàm al-Waqf, 72.
45
Al-Khaßßàf, A˙kàm al-Awqàf, 21, 38–40, 113–14, 149, 151.
46
Al-Khaßßàf, A˙kàm al-Awqàf, 151.
47
Al-Khaßßàf, A˙kàm al-Awqàf, 1–18.
48
Calder, Studies, 40.
WAQF 29
Oral/Written Culture
Both waqf treatises appear to reflect a transition from an oral to a
written culture. Although this transformation had begun in the sec-
ond Islamic century, it was in the subsequent century that it began
to gather speed. Regardless of whether one views the qultu/qàla dia-
logues as representative of actual conversations or mere literary con-
ventions, the format of these dialogues suggests a desire to replicate
the orality of Islamic legal culture. The stylized replication of an
“orally voiced presence”52 may reflect an initial uneasiness with grant-
ing authority to written texts. As William Graham,53 Michael Cook,54
and Brinkley Messick55 have observed in their respective studies of
the Qur"àn, ˙adìths, and Yemeni law, the need to construct written
texts as oral texts attests to the continued privileging of oral culture
49
Calder, Studies, 40–52, esp. 40, 49.
50
Calder, Studies, 40.
51
Support for this conclusion can be garnered from Brockopp’s examination of
a third-century Màlikì text, the Mukhtaßar al-Kabìr of Ibn 'Abd al-Óakam. In the
appendices to his dissertation and Early Màlikì Law, Brockopp includes a portion of
the Mukhtaßar in both Arabic and English. The selection highlights the use of the
qultu/qàla dialectic within the Màlikì tradition, includes unattributed disputes on
points of law that resemble ikhtilàf, and legal analyses that might be characterized
as expository. Jonathan Brockopp, “Slavery in Islamic Law: An Examination of
Early Màlikì Jurisprudence,” (Ph.D. diss., Yale University, 1995), A1–A87; idem,
Early Màlikì Law, Appendix A, 227–83.
52
Brinkley Messick, The Calligraphic State: Textual Domination and History in Muslim
Society (Berkeley: University of California Press, 1993), 25.
53
William A. Graham, Beyond the Written Word: Oral Aspects of Scripture in the History
of Religion (Cambridge: Cambridge University Press, 1987), passim.
54
Cook, “The Opponents of the Writing of Tradition in Early Islam,” Arabica
46/4 (1997), passim.
55
Messick, The Calligraphic State, 25–28.
30
56
Cook, “The Opponents of the Writing of Tradition,” 438 (“For it was on the
oral continuity of transmission that the very authenticity of Tradition was seen to
rest; mere literary transmission, and a fortiori literary finds, could carry no such
authority.”). According to Messick, written and recitational forms coexisted, but only
oral recitation provided proof of authenticity by “replicating an originally voiced
presence.” Messick, The Calligraphic State, 25–26.
57
Cook, “The Opponents of the Writing of Tradition,” 523.
58
Cook, “The Opponents of the Writing of Tradition,” 523.
WAQF 31
In their efforts to define the law of waqf, Hilàl and al-Khaßßàf uti-
lized a number of argumentative techniques. Some of these tech-
niques, such as the use of qiyàs, have already been mentioned, while
others include the use of stock figures, appeals to authority, reduc-
tive reasoning, and a reliance on isti˙sàn, or judicial preference. The
commonality of these techniques in both waqf treatises provides an
indication of the forms of legal argumentation present within Óanafì
circles during the middle of the third century and a benchmark for
measuring how these forms of argumentation—especially qiyàs and
isti˙sàn—evolved over the course of subsequent centuries.
Appeals to Authorities
The voices of past authorities are employed in different ways through-
out the waqf treatises in order to advance legal arguments. For exam-
ple, in this quotation from the A˙kàm al-Waqf, Hilàl relies on the
founder of the Óanafì school to bolster his conclusion regarding a
founder’s right to distribute and consume the yields of a waqf: “This
59
Calder, Studies, 185.
60
Calder, Studies, 184–85.
32
Stock Figures
Another argumentative technique found in both works concerns the
use of stock figures—nicknamed 'Abd Allàh, Zayd and 'Amr.69 In
this passage from Hilàl’s treatise, the three names are used to exam-
ine how the yields of a waqf are to be divided:
61
Hilàl al-Ra"y, A˙kàm al-Waqf, 291–92 (in two places).
62
Al-Khaßßàf, A˙kàm al-Awqàf, 20–21, 73, 155, 177, 201, 207.
63
Al-Khaßßàf, A˙kàm al-Awqàf, 201.
64
Al-Khaßßàf, A˙kàm al-Awqàf, 4–5, 8–9, 43–44, 46, 148, 291–92, 299.
65
Al-Khaßßàf, A˙kàm al-Awqàf, 6, 14, 148, 212.
66
Al-Khaßßàf, A˙kàm al-Awqàf, 222.
67
Al-Khaßßàf, A˙kàm al-Awqàf, 14.
68
Al-Khaßßàf, A˙kàm al-Awqàf, 2, 285.
69
Al-Khaßßàf, A˙kàm al-Awqàf, 43–45, 125–26, 137–40, 145–48, 153, 160–61,
WAQF 33
I said: What is your opinion of a man who says, “This land of mine
is a ßadaqa mawqùfa to God the Exalted in perpetuity for 'Abd
Allàh and Zayd”?
He said: The yields are between the two of them in halves. . . .
I said: And if he had said, “for Zayd and 'Amr and 'Abd Allàh, and
Zayd is entitled to one-third and 'Amr is entitled to one-half ”?
He said: Then each one of them is entitled to what he stipulated, and
'Abd Allàh is entitled to the one-sixth which remains. . . .
I said: What is your opinion if he says, “This land of mine is a ßadaqa
mawqùfa for Zayd and 'Amr, and Zayd is entitled to 100 dirhams
from it each year”?
He said: Then Zayd is entitled to what he stipulated. And 'Amr is
entitled to that which remains—whether it be a little or a lot.70
The utilization of these stock figures permits the dialogues in the
waqf treatises to extend into uncharted—albeit, hypothetical—areas
of waqf law. Had the waqf treatises constrained themselves to dis-
cussions of real cases, the scope of the argumentation would have
been quite limited and many potential problematic areas of waqf law
would have remained unexplored. The use of the stock figures is
therefore consistent with the overall ethos underlying the qultu/qàla
dialectic—the derivation of waqf law principles through a compre-
hensive rational discourse.
Reductive Reasoning
In addition to using stock figures, several of the hypothetical dis-
cussions in the waqf treatises engage in “reductive reasoning” to illu-
minate and define the outer edges of the law. Unlike reductio ad
absurdum in which an argument is pushed to its furthest extremity in
order to prove that its conclusion is absurd, in reductive reasoning
an argument is pushed to its extremes in order to establish that the
principle applies in all cases. For example, in the following qultu/qàla
dialogue, Hilàl invalidates a waqf because it violates the principle
that founders may not establish waqfs in favor of themselves. Hilàl
affirms the inviolability of this principle through reductive reasoning
when he holds that a proposed waqf is invalid even if the founder
partakes of a trivial amount of the yields—0.01% to be exact:
168–69, 215–20, 247–51, 258–61, 281–83; Hilàl al-Ra"y, A˙kàm al-Waqf, 48–49,
54–56, 273–83.
70
Hilàl al-Ra"y, A˙kàm al-Waqf, 273–74.
34
I said: What is your opinion if it were the case that he said, “ßadaqa
mawqùfa on the condition that I have the right [to take] from its
yields 200 dirhams each year. And what remains after this is for
the poor and destitute.”
He said: The waqf is invalid and not permitted.
I said: Even if it was known that its yields were 10,000 [dirhams]?
He said: Even if this was known, it is still according to what I have
described to you. . . .
I said: And likewise if it were the case that he imposed the condition
[that he was to receive only] one dirham from the yields?
He said: Yes.71
71
Hilàl al-Ra"y, A˙kàm al-Waqf, 82.
72
The comparison/contrast between qiyàs and isti˙sàn was a common form of
legal argumentation among second- and third-century Óanafì scholars. For exam-
ple, in the Kitàb al-Aßl, Mu˙ammad b. al-Óasan al-Shaybànì often states, “We part
with qiyàs and follow isti˙sàn,” or “qiyàs would be . . . but we do not follow it.”
Mu˙ammad b. al-Óasan al-Shaybànì, Kitàb al-Aßl (Cairo: Ma†ba'at Jàmi'at al-Qàhira,
1954), 1: 23, 81–182, 218, 222. Also cited in A˙mad Óasan, “Early Modes of
Ijtihàd,” Islamic Studies 6 (1967), 67.
73
Al-Khaßßàf, A˙kàm al-Awqàf, 217.
74
Hilàl al-Ra"y, A˙kàm al-Waqf, 199. For other places where Hilàl makes explicit
reference to qiyàs between bequest and waqf law, see pages 22, 225, 265, 276, 292,
WAQF 35
299. A similar use of qiyàs occurs in al-Khaßßàf, A˙kàm al-Awqàf, 134, 154, 217,
219, 233, 238, 281.
75
Hilàl al-Ra"y, A˙kàm al-Waqf, 54–55. For other instances where qiyàs is implied
rather than stated, see pages 19, 43–44, 53, 72, 80, 133, 166–67, 277–78, 280–81,
292–93, 304–05; Al-Khaßßàf, A˙kàm al-Awqàf, 71, 215, 245, 278.
76
Hilàl al-Ra"y, A˙kàm al-Waqf, 73. See also al-Khaßßàf, A˙kàm al-Awqàf, 34–35,
217, 241–42, 247–48, 292, for analogies drawn from slave law.
36
77
Hallaq, A History of Islamic Legal Theories, 101–05, 126, 217, 228–29. The seven
types of qiyàs are: qiyàs dalàla, qiyàs ijmàlì wàsi', qiyàs 'illa, qiyàs jalì, qiyàs khafì, qiyàs
maßla˙a mursala, and qiyàs shabah.
78
Wael B. Hallaq, “The Logic of Legal Reasoning in Religious and Non-Religious
Cultures: The Case of Islamic Law and the Common Law,” Cleveland State Law
Review 34 (1985–86), 94. Hallaq notes that Ibn Taymiyya claimed that analogical
argument had four components: (i) the aßl; (ii) the far'; (iii) the 'illa; and (iv) the
˙ukm, or rule, which was transferred from the aßl to the far'.
79
Wael B. Hallaq, “The Development of Logical Structure in Sunnì Legal
Theory,” Der Islam 64 (1987), 43–44.
80
Schacht, Origins, 110; Óasan, “Early Modes of Ijtihàd,” 64, 70; Zafar Ishaq
Ansari, “Islamic Juristic Terminology Before ”àfi'ì: A Semantic Analysis with Special
Reference to Kùfa,” Arabica 19 (1972), 292; Hallaq, “The Development of Logical
Structure,” 44–46, 65; idem, A History of Islamic Legal Theories, 2.
81
Wael B. Hallaq, “Considerations on the Function and Character of Sunnì
Legal Theory,” JAOS 104 (1984), 681.
82
Óasan, “Early Modes of Ijtihàd,” 64.
83
Óasan, “Early Modes of Ijtihàd,” 70.
WAQF 37
84
Óasan, “Early Modes of Ijtihàd,” 70. Schacht observed that al-Shàfi'ì labeled
the Óanafìs “ahl al-qiyàs” on account of their frequent exercise of analogical rea-
soning. Schacht, Origins, 109.
85
Wael B. Hallaq, “Non-Analogical Arguments in Sunnì Juridical Qiyàs,” Arabica
36 (1989), 301; J. Gregorowicz, “L’argument a maiori ad minus et le problème de la
logique juridique,” Logique et Analyse 17–18 (1962), 69–75.
86
Schacht, Origins, 110–11.
87
Émile Tyan, “Méthodologie et sources du droit en Islam,” Studia Islamica 10
(1959), 84; Ansari, “Islamic Juristic Terminology Before ”àfi'ì,” 292; Óasan, “Early
Modes of Ijtihàd,” 74.
88
Óasan, “Early Modes of Ijtihàd,” 74.
38
I said: What is your opinion if the two [witnesses] say, “We testify
that he endowed his share from this house” and [then] they say,
“We do not know the [quantity] of his share.”
He said: The testimony, according to qiyàs, is invalid, but according
to isti˙sàn, the testimony is permitted.89
As the preceding dialogue indicates, isti˙sàn is used in the waqf trea-
tises as a safety valve when the application of qiyàs would create an
unsatisfactory or unjust result. For example, Hilàl discusses the case
of a founder who has established a waqf “for my nearest kin rela-
tion who is poor and then for those next closest in relation who are
poor.” According to qiyàs, the entire yields of the waqf should be
given to the nearest poor kin relation even if that means that the
remaining poor relatives receive nothing. Perhaps sensing that such
a result would be unjust and/or inconsistent with the founder’s intent,
Hilàl turns to the doctrine of isti˙sàn to argue that when a waqf is
designated for the poor, it is better to give not more than 200 dirhams
(i.e., the amount that delimits poverty) to the nearest kin relation
until all the other poor relatives have been lifted out of poverty.90
The use of isti˙sàn, like qiyàs, is not entirely uniform in meaning
throughout the two waqf treatises. The most common usage is that
described in the passage above—a reliance on juristic preference and
an appeal to the spirit of the law.91 In some cases, however, the use
of isti˙sàn resembles ad hoc reasoning without any reference to social
or religious norms. For example, al-Khaßßàf recounts the case of two
groups of beneficiaries who lay claim to the same waqf. In the absence
of any living witness or legal records, al-Khaßßàf bases his judgment
on his own independent assessment of the situation: “And if they
make a case for taking it, and there are no legal records in the qà∂ì’s
dìwàn (laysa la-hum rasm fì dìwàn) to be used as a basis for a deci-
sion, then I rely on isti˙sàn to execute this for them, and I divide
the yields between them.”92 Hilàl’s treatise presents two additional
uses of isti˙sàn, both of which imply that isti˙sàn constitutes a less
preferred, albeit permitted, way of doing something. In one case,
Hilàl discusses a waqf established “for the poor and the destitute,”
89
Al-Khaßßàf, A˙kàm al-Awqàf, 217.
90
Hilàl al-Ra"y, A˙kàm al-Waqf, 225.
91
Hilàl al-Ra"y, A˙kàm al-Waqf, 225, 289–90, 299, 306; al-Khaßßàf, A˙kàm al-
Awqàf, 134, 217, 219, 281.
92
Al-Khaßßàf, A˙kàm al-Awqàf, 134.
WAQF 39
but where the founder has failed to specify anything for his kin rela-
tions, some of whom happen to be poor. Hilàl contends that the
founder should first ameliorate the poverty of his kin relations, because
“they have a greater claim to [the yields of the waqf ] than the des-
titute because the ßadaqa of a man for his poor kin relations is a
greater recompense [ßadaqa] than for strangers.”93 Nonetheless, Hilàl
concedes that if the founder ignores his poor kin relations and dis-
tributes the yields to the poor and destitute, then “he is permitted
[to do this], and this is isti˙sàn” ( fa-huwa jà"iz wa-hàdhà isti˙sàn).94
Clearly, Hilàl believes that the founder should favor his poor kin
relations, but he is compelled to admit that isti˙sàn allows the founder
to do what is less preferred. In another part of his waqf treatise,
isti˙sàn takes on the meaning of “as a last resort.” This usage occurs
in a discussion of waqfs established for clients. Hilàl argues that clients
who were emancipated slaves, and the children of these clients, should
receive the yields of a waqf ahead of any clients under a contract of
clientage.95 If, however, there exist only clients under a contract of
clientage, then they should receive the yields of waqf “as a last resort”
(i.e., by virtue of isti˙sàn):
I said: What is your opinion if the founder has neither a client who
is an emancipated slave, nor children from this client, but he does
have a client who is under a contract of clientage?
He said: By virtue of isti˙sàn I would give him the yields.96
Partly due to these various uses, it is often difficult to identify one
definition of isti˙sàn. In his Mabsù†, al-Sarakhsì (d. ca. 483/1090), alter-
natively defined isti˙sàn as a form of common law and a safety valve:
“analogy abandoned in favor of custom” (al-qiyàs yutrak bi"l-'urf ); “the
renunciation of analogy and the adoption of what is more fitting for
people” (al-isti˙sànu tarku al-qiyàsi wa"l-akhdhu bi-mà awfaqu li"l-nàsi );
and/or that which provides “more lenience in laws” (al-isti˙sànu †alabu
al-suhùla fì"l-a˙kàmi ).97 Because isti˙sàn seems to have been used as
93
Hilàl al-Ra"y, A˙kàm al-Waqf, 148.
94
Hilàl al-Ra"y, A˙kàm al-Waqf, 148.
95
Hilàl al-Ra"y, A˙kàm al-Waqf, 188–89.
96
Hilàl al-Ra"y, A˙kàm al-Waqf, 189.
97
Al-Sarakhsì, Al-Mabsù†, 10: 145, 15: 90. The translation and transliteration of
these passages are borrowed from Gideon Libson, “On the Development of Custom
as a Source of Law in Islamic Law,” ILS 4 (1997), 151.
40
98
Abdur Rahim, The Principles of Muhammadan Jurisprudence (1911; reprint, Lahore,
Pakistan: The Punjab Educational Press, 1963), 163–66; David de Santillana, Istituzioni
di diritto musulmano malichita (Rome: Istituto per l’Oriente, 1925–38), 1: 71–72; EI 1,
s.v. “Isti˙sàn,” Th. W. Juynboll, 2: 561; Tyan, “Méthodologie et sources,” 79–91,
esp. 84–89; Chafik Chehata, “L’équité en tant que source de droit hanafite,” Studia
Islamica 25 (1966), 123–38, esp. 136; Anwàr A˙mad Qadrì, Islamic Jurisprudence in
the Modern World (Lahore, Pakistan: Sh. Muhammad Ashraf, 1973), 222–24.
99
Black’s Law Dictionary, 5th ed., 484.
100
John Makdisi, “Legal Logic and Equity in Islamic Law,” The American Journal
of Comparative Law 33 (1985), 67. As Makdisi notes in his article, Schacht and Paret
had already begun to question the analogy between isti˙sàn and equity. See EI 2,
s.v. “Isti˙sàn and Istißlà˙,” R. Paret, 4: 256; Schacht, An Introduction to Islamic Law
(Oxford: Clarendon Press, 1964), 204.
101
Haim Gerber, “Rigidity Versus Openness in Late Classical Islamic Law: The
Case of the Seventeenth-Century Palestinian Muftì Khayr al-Dìn al-Ramlì,” ILS 5
(1998), 186–87.
102
Al-Shàfi'ì, Al-Risàla, ed. A˙mad Mu˙ammad Shàkir (Cairo: Maktabat Dàr al-
Turàth, 1979), 503–59.
103
Al-Shàfi'ì, “Kitàb Ib†àl al-Isti˙sàn,” Kitàb al-Umm, 7: 293–304.
WAQF 41
104
The Qur"ànic basis for isti˙sàn was believed to have originated from two
Qur"ànic verses in which God urged his servants to “listen to the word and follow
what is best in it” (alladhìna yastami'ùn al-qawla fa-yattabi'ùn a˙sanahu) and to “follow
the best of what was sent down to you by your Lord” (wa"ttabi'ù a˙sana mà unzila
ilaykum min rabbikum). Qur"àn 39.18 and 39.55, respectively.
105
The Prophet reportedly supported the use of isti˙sàn when he asserted, “That
which is considered good by the Muslim community is likewise considered good in
the opinion of God (mà ra"àhu al-muslimùna ˙asanan fa-huwa 'inda Allàhì ˙asan). 'Alì
b. Abì 'Alì al-Àmidì (d. 631/1233), Al-I˙kàm fì Ußùl al-A˙kàm (Cairo: Ma†ba'at al-
Ma'àrif, 1914), 4: 214.
106
Al-Sarakhsì, Ußùl al-Sarakhsì, ed. Abù al-Wafà" al-Afghànì (Beirut: Dàr al-
Ma'arifa, 1973), 199–215, esp. 202–04; Fakhr al-Islàm al-Bazdawì, in al-Bukhàrì,
Kashf al-Asràr (Beirut: Dàr al-Kitàb al-'Arabì, 1974), 4: 2–14. See also Makdisi,
“Legal Logic and Equity in Islamic Law,” 75–78; Bernard Weiss, “Interpretation
in Islamic Law: The Theory of Ijtihàd,” The American Journal of Comparative Law 26
(1978), 202.
107
Makdisi, “Legal Logic and Equity in Islamic Law,” 78.
42
Tone
Both waqf treatises contain theoretical and prescriptive elements, but
the overall tone of the two works differs. Hilàl’s treatise is more theo-
retical, while al-Khaßßàf ’s is more prescriptive. The theoretical qual-
ity of Hilàl’s discussions is emphasized by the extended qultu/qàla
108
Although the Risàla of al-Shàfi'ì existed at the beginning of the third century
A.H., Hallaq has persuasively argued that it had “very little, if any, effect during
most of the [third] century.” Instead, Hallaq contends that al-Shàfi'ì’s ideas did not
begin to exert their effect on Islamic law and legal reasoning until the next cen-
tury. Hallaq, “Was al-Shàfi'ì the Master Architect?” 587–88.
109
Melchert has observed a similar transformational “loss” with the harmoniza-
tion of traditionalist and rationalist jurisprudence in the fourth century A.H.: “What
[the traditionist-jurisprudents] lost was the purity and power of simply letting hadith
speak for itself; also, on the other side, [rationalist-jurisprudents lost] a certain frank-
ness about the importance of local tradition and personal speculation in the devel-
opment of Islamic law.” Melchert, “Traditionist-Jurisprudents,” 406.
WAQF 43
110
Hilàl al-Ra"y, A˙kàm al-Waqf, 54–58, 221–24, 273–75, 276–83, for examples
of these prolonged qultu/qàla dialogues.
111
Calder, Studies, 180; Wael B. Hallaq, “Ußùl al-Fiqh: Beyond Tradition,” Journal
of Islamic Studies 3 (1992), 185–86.
112
Calder, Studies, 200.
113
It is not entirely clear whether al-Khaßßàf viewed the term “˙àkim” as a syn-
onym for “qà∂ì ” or whether he intended this term to convey another meaning.
Edward Lane’s Arabic-English Lexicon states that “˙àkim” could mean both a “judge”
and “a man advanced in age.” Lane, Arabic-English Lexicon (London and Edinburgh:
Williams and Norgate, 1863; reprint Lahore, Pakistan: Islamic Book Centre, 1978),
2: 617. The sixth-century A.H. Màlikì jurist, Ibn Rushd (d. 520/1126) used the
terms “qà∂ì” and “˙àkim” synonymously. Ibn Rushd, Al-Bayàn wa"l-Ta˙ßìl wa"l-Shar˙
wa"l-Tawjìh wa"l-Ta'lìl fì Masà"il al-Mustakhraja, ed. Mu˙ammad Óajjì (1st ed., Beirut:
Dàr al-Gharb al-Islàmì, 1404–06/1984–86), 6: 26. Cited in Hiroyuki Yanagihashi,
“The Judicial Functions of the Sul†àn in Civil Cases According to the Màlikìs up
to the Sixth/Twelfth Century,” ILS 3 (1996), 44.
114
Powers, Law, Society, and Culture in the Maghrib, 137; cf. Lawrence Rosen, The
44
I said: And what is your opinion if, while the founder was alive, he
disavowed the waqf, and the beneficiaries brought witnesses who
testified that he had endowed this land for them as a legally valid
waqf ?
He said: If it is land in his possession, then I would judge it to be a
waqf and I would remove it from his possession.
I said: And what is your opinion if another man brings him forward
and alleges, “This man endowed this land for the destitute in per-
petuity,” but he [the founder] disavows this. And he [the other
man] brings evidence that he [the founder] acknowledged it as a
waqf ?
He said: I would rule that it is a waqf for the destitute, and I would
remove the land from his possession.122
The effect of these pronouns “we” and “I” is to subvert the strong
pedagogical tone of the dialectic. Instead of maintaining a strict dis-
tinction between teacher and student, al-Khaßßàf transforms the
qultu/qàla dialogue into what might be described as a seminar amongst
qà∂ìs. In this imagined seminar, al-Khaßßàf emerges as an experi-
enced qà∂ì who offers advice to those less learned in the subtleties
of waqf law and waqf administration.
These differences in tone between the two waqf treatises may be
a consequence of the differing livelihoods of the authors. Al-Khaßßàf ’s
identification with, and interest in, the role of the qà∂ì appears to
be an extension of how he perceived himself, and his role in the
'Abbàsid administrative bureaucracy. The inclusive, mentoring tone
of the A˙kàm al-Awqàf is consistent with a man who was a qà∂ì and
who wrote an extensive work on the decorum and actions of judges
(Kitàb Adab al-Qà∂ì ),123 and a treatise on court documents and records
(Kitàb al-Ma˙à∂ir wa"l-Sijillàt ). Admittedly, much less is known about
the personal and professional aspirations of Hilàl, although he was
remembered as a teacher of prominent figures in the Óanafì school.
Thus, the theoretical and didactic/pedantic quality of Hilàl’s waqf
treatise may reflect a more academic/scholarly approach to the law
rather than a concern with its practical application.
122
Al-Khaßßàf, A˙kàm al-Awqàf, 210–11.
123
The Kitàb Adab al-Qà∂ì contains a brief section on the waqf. In this section,
al-Khaßßàf focuses on the steps a qà∂ì should undertake to ensure the creation of
a valid endowment. Al-Khaßßàf, Adab al-Qà∂ì, 75–76.
46
Legal Reasoning
Calder defined the “discursive tradition” as “dominated by (1) gen-
eralizing activity, the search for categories and (2) analogical reflection,
the search for parallels within the known juristic structure.”124 By
contrast, the “hermeneutic tradition” purported to derive law exeget-
ically from Prophetic sources.125 According to Calder, second-century
A.H. Islamic legal thinking was primarily discursive, but hermeneutical
legal reasoning gradually supplanted the discursive tradition over the
course of the third and fourth Islamic centuries. The different uses
of past authorities in the two waqf treatises is evidence that the two
works represent distinct stages in this evolution towards a hermeneu-
tically-derived sharì'a.
Application of Calder’s two categories of legal reasoning to the
A˙kàm al-Waqf of Hilàl reveals that Hilàl’s legal reasoning is almost
exclusively discursive. Hilàl makes explicit reference to analogical
reasoning (qiyàs),126 and, as analyzed in chapter three, the dominant
concern in the introduction of his treatise is with the creation and
clarification of legal categories. Even Hilàl’s use of Prophetic and
Companion precedents is consistent with the discursive tradition.
According to Calder, early discursive legal literature exhibits two
major types of juristic exposition: the dialogue and exempla.127 The
former, characterized by the use of the qultu/qàla dialectic128 and the
term ra"y (a-ra"ayta, arà, yarà, etc.) “presents the law in a manner
which emphasizes the dynamic, reflective, and productive capacities
of legal thinking.”129 Exempla, by contrast, serve to prove or justify
the law, but do not act as exegetical sources for the law.130 While
Hilàl does make reference to the “waqfs” of the early Islamic com-
munity (see chapter three), he does not use these references to derive
the law, but rather, to confirm the categorical distinctions created
by his own independent reasoning (ra"y).
If Hilàl’s waqf treatise constitutes a clear example of the discur-
sive tradition, the legal reasoning in al-Khaßßàf ’s work shows signs
124
Calder, Studies, 7.
125
Calder, Studies, 8.
126
Hilàl al-Ra"y, A˙kàm al-Waqf, 22, 199, 225, 265, 276, 292, 299.
127
Calder, Studies, 53.
128
Calder, Studies, 8.
129
Calder, Studies, 53.
130
Calder, Studies, 54.
WAQF 47
131
Abù Khàlid Yùsuf b. Khàlid reportedly died in the year 189/805 or 196/812
at the age of sixty-seven. No explanation is given for the disparity in his reported
death dates. As will be discussed in chapter four, this dissimilarity in death-dates
may be a result of what G. H. A. Juynboll has coined an “age trick.” A˙mad b.
'Alì Ibn Óajar al-'Asqalànì, Tahdhìb al-Tahdhìb (Hyderabad: Dà"irat al-Ma'àrif al-
'Uthmàniyya, 1325/1906), 11: 411–13; Juynboll, Muslim Tradition (Cambridge: Cam-
bridge University Press, 1983), 46–48; idem, “Nàfi', the mawlà of Ibn 'Umar, and
his position in Muslim ˙adìth literature,” Der Islam 70 (1993), 219–23; idem, “The
Role of the Mu'ammarùn in the Early Development of the Isnàd,” Wiener Zeitschrift
für die Kunde des Morgenlandes 81 (1991), passim.
132
Hilàl al-Ra"y, A˙kàm al-Waqf, 66. It is possible that Abù Khàlid was deriving
his fifty dirham limit from the Prophetic ˙adìth cited by al-Khaßßàf. Nonetheless, even
if Abù Khàlid had the Prophetic ˙adìth in mind when he spoke, it is significant that
neither he nor Hilàl felt obligated to mention that the Prophet had set this limit.
In consideration of Schacht’s “back-projection” thesis, it is also possible that the
fifty dirham limit was “raised” to the level of a Prophetic ˙adìth during the course
of the third century A.H.
48
133
Al-Khaßßàf, A˙kàm al-Awqàf, 38. Al-Dàraqu†nì considered this tradition to be
weak. Al-Dàraqu†nì, Kitàb Takhrìj al-A˙àdìth al-Îi'àf (Beirut: Dàr al-Kutub al-'Ilmiyya,
1990), 224–25.
134
The problem of categorizing third-century jurists and their texts as “Óanafì”
was addressed in the introduction to chapter one.
135
The wording of this sentence closely parallels the ideas of Brockopp in his
discussion of why the Mukhtaßar of Ibn 'Abd al-Óakam should be understood as a
Màlikì text. Brockopp, “Early Islamic Jurisprudence in Egypt,” 172.
136
Hallaq, “Was al-Shàfi'ì the Master Architect?,” 600–01.
WAQF 49
137
Al-Khaßßàf, A˙kàm al-Awqàf, 151.
138
Later Óanafì jurists did ground their discussions of the waqf in a more
hermeneutical milieu. For example, the fourth-century Shar˙ al-Ma'ànì al-Àthàr of al-
ˇa˙àwì (d. 321/933) illustrates the influence of the traditionalist movement on
Óanafì ra"y. The section on waqfs in the Shar˙ is primarily an exercise in hermeneutical
exegesis with an emphasis on reconciling Prophetic ˙adìths with earlier Óanafì legal
decisions. Al-ˇa˙àwì, Shar˙ al-Ma'ànì al-Àthàr, 4: 95–98. Calder has described al-
ˇa˙àwì’s use of ˙adìths in the Shar˙ as an attempt “to demonstrate that the prin-
ciples of Óanafì law can be established by reference to Prophetic ˙adìth and,
conversely, that, whatever the appearances to the contrary, there are no reliable
Prophetic ˙adìth that contradict Óanafì law.” Calder, Studies, 235. Likewise, the fifth-
century jurist al-Sarakhsì (d. ca. 483/1090) begins his discussion of the waqf by
pointing out that the Qur"àn uses the verb waqqafa, although he does not seem to
be bothered by the fact that the Qur"àn’s use of this verb has nothing to do with
sequestering property. Al-Sarakhsì, Al-Mabsù†, 12: 27. Al-Sarakhsì also includes a
number of full ˙adìths, and makes several references to the practices of the early
Muslim community. Al-Sarakhsì, Al-Mabsù†, 12: 28–31, 35. This description should
not obscure the fact that al-Sarakhsì’s work includes elements of rationalist dis-
course; in fact, many of the qultu/qàla sections in the Mabsù† mimic the literary
style of the waqf treatises. But what differentiates his work from that of his third-
century predecessors is that he is more cognizant of the need to include hermeneu-
tical elements in his discussion of the waqf.
CHAPTER THREE
The title of this work claims that Hilàl and al-Khaßßàf played a crit-
ical role in the creation of a new legal institution. And yet, it is also
clear that Hilàl and al-Khaßßàf did not invent the trust. The legal
systems of the Near East had historically sanctioned various forms
of endowments with trust-like properties involving the transfer of
property from A to B for the benefit of C, the separation of prin-
cipal and usufruct, the creation of inalienable endowments for char-
itable purposes, etc. There is also evidence from the historical record
of an existing nomenclature of trust practices within Islamic society
even before the waqf treatises came into existence. What Hilàl and
al-Khaßßàf accomplished was the transformation of this nomencla-
ture into a new, distinctly Islamic form of the trust—the waqf.
The waqf treatises reveal that use of the term waqf/awqàf and its
verbs waqqafa/awqafa was exceptional in first and second-century A.H.
Islamic legal discourse. In general, neither early juristic discourse nor
the ˙adìths which form the basis for the legitimacy of the waqf used
this term when discussing pious endowments.1 Instead, there existed
a number of terms—ßadaqa, ˙ubs, ßadaqa mu˙arrama, ßadaqa ma˙bùsa,
ßadaqa ˙ubsan, ˙ubs mawqùfa, ßadaqa ˙abìs, ˙abìs ßadaqa, ßadaqa musab-
bala, ßadaqa mafrù∂a, ßadaqa mu"abbada, ßadaqa mawqùfa, or ma˙bisa
1
One of the earliest usages of waqf/waqqafa is found in Ya˙yà b. Àdam (d. 203/
818), Kitàb al-Kharàj (Cairo: al-Ma†ba'a al-Salafiyya, 1964), 26, no. 47, in which the
author employs the verb “waqqafa” to refer to 'Umar b. al-Kha††àb’s pious endow-
ment: “innamà waqqafa 'Umar b. al-Kha††àb.” Al-Shàfi'ì also uses the term “waqf,” but
seems to prefer other terms such as “˙ubs,” “a˙bàs,” “ßadaqa mawqùfa,” and “ßadaqa
mu˙arrama.” Al-Shàfi'ì, Kitàb al-Umm, 4: 51–61. The title to the no longer extant
Kitàb al-Wuqùf wa"l-Íadaqàt of Mu˙ammad b. al-Óasan al-Shaybànì (d. 189/804)
also suggests that the second-century jurist used the term “waqf.” However, with-
out the actual text of al-Shaybànì’s treatise it is impossible to confirm that the title
accurately reflects the contents of the treatise.
WAQF 51
2
Qur"àn 19.40. This expression, used in waqf deeds to imply perpetuity, is found
in the deeds of the Prophet’s wife, Íafiyya bt. Óuyayy, his Companion, 'Uqba b.
'Àmir, and the deed in the Kitàb al-Umm of al-Shàfi'ì. Al-Khaßßàf, A˙kàm al-Awqàf,
14–15; al-Shàfi'ì, Kitàb al-Umm, 4: 59.
3
In spite of this plethora of terms, scholars of the waqf have tended to conflate
their meanings and refer to them all as “waqf.” For example, in an article on first-
century A.H. waqfs, Moshe Gil states that during the early period, “ßadaqa was used
as synonym for waqf.” Gil, “The Earliest Waqf Foundations,” JNES 57/2 (1998),
130. Likewise, Anwàr A˙mad Qadrì describes the waqf as “a kind of ßadaqah,” and
he observes that the word waqf is similar in form and meaning to the word ˙ubs
(pl. a˙bàs/˙abùs) used in North Africa, which has the legal meaning of “detention”
or “tying up.” Qadrì, Islamic Jurisprudence, 455. This conflation of terms has not
been limited to modern scholars. The fifth-century A.H. Óanafì jurist, al-Sarakhsì
stated that the word “waqf ” is synonymous with sequestration (˙ubs) and withhold-
ing (man' ), and that the term signifies “the sequestration of that which is owned
from the potential ownership of someone else.” Al-Sarakhsì, Al-Mabsù†, 12: 27. In
the writings of Hilàl and al-Khaßßàf, however, important legal distinctions are drawn
between these terms, see infra, section two.
52
While the content of the waqf treatises indicates that the signifier
“waqf ” emerged as a means to bring order and clarity to this area
of law, the nomenclature of trust practices that formed the back-
drop to the creation of the waqf treatises remains rather vague, mak-
ing it hard to measure the accomplishment of the treatise writers.
There exists, however, a set of works that may shed light on the
milieu of Near Eastern trust law confronting third-century jurists—
the writings of historians who have attempted to divine the foreign
origins of the waqf.
Examining these arguments concerning the alleged foreign origins
of the waqf gives both a sense of the terrain of Near Eastern trust
practices at the time of the waqf treatises and may explain how ter-
minological confusion arose in this area of law. The fact that histo-
rians have been able to find several different foreign origins for the
waqf illustrates quite nicely what must have been the problem fac-
ing third-century jurists: seemingly every Near Eastern culture had
practices that permitted trust formation, creating a plethora of trust
law, but no distinctly Islamic trust.
Reliance on these arguments, however, poses an interesting ques-
tion—is the waqf really new at all? Perhaps Hilàl and al-Khaßßàf
merely “borrowed” a foreign form of the trust and gave it a new
name. I actually agree with the argument that the “waqf ” is infused
with elements of foreign practices. What I do not agree with, how-
ever, is the contention that these echoes of foreign practices make
the waqf a “borrowed” institution. The creation of the signifier “waqf ”
was a unique Islamic solution to what may have been the predom-
inant problem facing jurists in the third Islamic century—the cre-
ation of a coherent Islamic law within the context of an increasingly
heterogeneous Muslim population whose cultural (and legal) prac-
tices had origins outside an Arab-Islamic context. If “foreign” practices
seeped into the substantive law of waqf, they likely did so uncon-
sciously, as an unintended byproduct of the treatise authors’ attempts
to bring order to this area of law.
Byzantine/Roman Origins
Some of the earliest speculations into the foreign origins of the waqf
centered on two Byzantine and Roman institutions—the res sacrae
and the piae causae. Beginning in the nineteenth century, historians
observed that the Roman res sacrae and the Byzantine piae causae
WAQF 53
resembled the waqf khayrì or public endowment. Like the waqf khayrì,
the res sacrae consisted of property consecrated for a religious pur-
pose—usually the construction of a temple—that became inalien-
able.4 The piae causae also shares a number of features with the Islamic
waqf. Both are inalienable properties managed by administrators, and
supervised by religious functionaries—the bishop for the piae causae
and the qà∂ì for the waqf.5 More significantly, the charitable pur-
poses of the piae causae parallel those of the waqf—relief for the poor,
the ransom of captives, and the construction of churches, hospitals,
hospices for travelers, orphanages, and almshouses.6 The similarities
between the piae causae and the waqf khayrì led one historian to con-
clude that scholars should look to Byzantium for the origins of the
waqf:
By way of conclusion, it must be said that there is no direct literary
evidence that a conscious grafting occurred between Byzantine and
Islamic religious foundations. Nonetheless, the analogy between the
legal conditions for creating piae causae and the principles set forth by
[early Óanafì jurists] offers convincing argument that such a borrow-
ing had in fact occurred.7
4
Domenico Gatteschi, Êtude sur la propriété foncière, les hypothèques et les wakfs
(Alexandria: Edward A. van Dyck, 1869), 284.
5
EI 1, s.v. “Wa˚f,” W. Heffening, 4: 1098.
6
P. W. Duff, “The Charitable Foundations of Byzantium,” in Cambridge Legal
Essays Written in Honour of and Presented to Doctor Bond, Professor Buckland, and Professor
Kenny (Cambridge, England: W. Heffer & Sons, Ltd., 1926), 83; Demetrios J.
Constantelos, Byzantine Philanthropy and Social Welfare (New Brunswick, NJ: Rutgers
University Press, 1968), 149–278; idem, Poverty, Society and Philanthropy in the Late
Mediaeval Greek World (New Rochelle, NY: Aristide D. Caratzas, Publisher, 1992),
117.
7
Barnes, Introduction to Religious Foundations, 16. Barnes’ conclusion is based on the
questionable premise that correlation implies causation. Barnes is not the first scholar
of Islamic history to rely upon this technique. In The Rise of Colleges, Makdisi uses
this form of reasoning as the foundation for his belief that many facets of the
medieval European educational system were consciously borrowed from the Muslim
madrasa system: “When the technical terms used in the two parallel cultures fre-
quently correspond in their meanings not only in form, so that a term may be said
to be the direct translation of its corresponding term, but in function as well, then
the correspondence cannot reasonably be dismissed as the result of chance, as in
no way related by causation.” Makdisi, The Rise of Colleges, 286–88. See also Makdisi,
“On the Origin and Development of the College,” in Islam and the Medieval West,
ed. Khalil I. Semaan (Albany: State University of New York Press, 1980), 39–40.
This same form of reasoning forms the basis for the assertions of Makdisi, Henry
Cattan, and Monica Gaudiosi that the English trust has its origins in the Islamic
waqf. See Makdisi, The Rise of Colleges, 285–87; idem, “On the Origin and Development
54
of the College,” 39–40; idem, “The Guilds of Law in Medieval Legal History: An
Inquiry into the Origins of the Inns of Court,” Cleveland State Law Review 34 (1985–86),
3–18; Cattan, “The Law of Waqf,” in Law in the Middle East: Origin and Development
of Islamic Law, eds. Majid Khadduri and Herbert J. Liebesny (Washington D.C.:
The Middle East Institute, 1955); Gaudiosi, “The Influence of the Islamic Waqf on
the Development of the Trust in England,” 1231–61. For a more recent exami-
nation of this issue, see Gilbert Paul Verbit, The Origins of the Trust (Xlibris Corporation,
2002).
8
Marcel Morand, Études de droit musulman algérien (Algiers: Jourdan, 1910), 244–45.
9
Amitabh Mukherji, “Islamic Institutions of Waqfs: Origin and Practice in Muslim
India,” Islamic and Comparative Law Quarterly 10–11 (1990–91), 114.
10
Duff, “The Charitable Foundations of Byzantium,” 85.
WAQF 55
11
Duff, “The Charitable Foundations of Byzantium,” 85.
12
Makdisi, The Rise of Colleges, 226; William R. Jones, “Pious Endowments in
Medieval Christianity and Islam,” Diogenes 109 (1980), 23–36.
13
Claude Cahen, “Réflexions sur le waqf ancien,” Studia Islamica 14 (1961), 51.
14
Cahen, “Réflexions sur le waqf ancien,” 51–52.
15
Joseph Schacht, “Droit byzantin et droit musulman,” in Convegno di scienze morali
storiche e filologiche (Rome: Accademia Nazionale dei Lincei, 1957), 215.
16
The earliest reference that I have found for this connection between the waqf
and the fidei commissum is a 1914 article by “Jurist.” The author of this article, how-
ever, found the resemblance to be superficial. “Jurist,” “Waqf,” 182.
17
Verbit, Origins of the Trust, 78.
18
Technically, the trustee was really a legatee, because he would have received
the property by means of a bequest. Verbit, The Origins of the Trust, 78.
56
19
Brendan F. Brown, “The Ecclesiastical Origin of the Use,” Notre Dame Lawyer
10 (1935), 361; Vincent R. Vesey, “Fideicommissa and Uses: The Clerical Connection
Revisited,” The Jurist 42 (1982), 203. Initially, there appears to have been no legal
obligation on the “trustee.” Under the Emperor Augustus (63 B.C.–14 C.E.), the
beneficiary ( fideicommissarius) was given a legal remedy against the trustee, and in the
time of Justinian, the fidei commissum moved from being an extra-legal device to one
formally regulated by the legal code, with the trustee’s obligation becoming enforce-
able in court. Kenelm Edward Digby, An Introduction to the History of the Law of Real
Property (Oxford: Clarendon Press, 1875), 241–42; Verbit, Origins of the Trust, 79.
20
A˙mad Faraj al-Sanhùrì, Majmù'at al-Qawànìn al-Mißriyya (Cairo: Ma†ba'at Mißr,
1949), 1/3: 7–8. Cited in Amìn, Al-Awqàf, 13.
21
Al-Sanhùrì, Majmù'a al-Qawànìn al-Mißriyya, 1/3: 7–8. Cited in Amìn, Al-Awqàf,
13.
22
Schacht, “Droit byzantin et droit musulman,” 215.
23
F. W. Maitland, “The Origin of Uses,” Harvard Law Review 8 (1894), 136–37;
David Johnston, The Roman Law of Trusts (Oxford: Clarendon Press, 1988), 283.
24
The one exception is the post mortem “testamentary waqf ” discussed in section
three of this chapter.
25
“Jurist,” “Waqf,” 182.
WAQF 57
Jewish Origins
The waqf also manifests similarities with the Jewish heqdèsh. Although
heqdèsh originally referred to property specifically dedicated to the
needs of the Temple, after the Temple’s destruction, the term acquired
a more general meaning of property set aside for charitable pur-
poses.31 Many of these purposes have parallels with the waqf: “the
poor in general”, “the poor relatives of the donor”, “synagogal needs”
(Scrolls of Law, cantor’s salary, etc.), “the ransom of captives”, “the
26
Digby, Introduction to the History of the Law of Real Property, 240.
27
Digby, Introduction to the History of the Law of Real Property, 240.
28
Digby, Introduction to the History of the Law of Real Property, 241.
29
Digby, Introduction to the History of the Law of Real Property, 241.
30
Digby, Introduction to the History of the Law of Real Property, 241.
31
EJ, s.v. “Hekdesh,” 8: 279–84.
58
32
EJ, s.v. “Hekdesh,” 8: 284.
33
EJ, s.v. “Hekdesh,” 8: 280. The heqdèsh was believed to be in the ownership of
God. Some of the Islamic schools of law held that the waqf was similarly owned.
EI 2, s.v. “Wa˚f,” R. Peters, 11: 62.
34
Al-Shàfi'ì, Kitàb al-Umm, 4: 60–61.
35
EJ, s.v. “Hekdesh,” 8: 285.
36
Moshe Gil, Documents of the Jewish Pious Foundations from the Cairo Geniza (Leiden:
E. J. Brill, 1976), 248, document 45. Gil also uses the term “qòdesh” to refer to the
heqdèsh. The terms are considered synonymous with one another.
37
Gil, Documents of the Jewish Pious Foundations, 4, 299, document 66.
WAQF 59
Persian Origins
Anahit Perikhanian has proposed that the origins of the waqf are to
be found in Sassanid Persia and that the pat ruvan, or ruvànagàn, pro-
vides the basis for the later Islamic waqf:
There can be no doubt of the Iranian origin of the Muslim waqf. The
resemblance in legal régime between Iranian endowments for a fixed
purpose and waqf properties is striking. There is the same non-con-
sumable “principal” . . . the same way of distributing the income . . .
The conditions and forms of the foundation are the same, including
the irrevocability of the act of institution. Similar too is the way of
administering waqf properties through trustees (nàΩir, mutawallì), nomi-
nated (at least in the case of the first trustee) by the founder (wàqif )
himself.38
In support of this conclusion, Perikhanian remarks that both Islamic
and Sassanian property law differentiate between a property’s prin-
cipal and its usufruct, and that both systems stipulate that the two
can be distributed separately.39 For example, in the following pas-
sage from the Sassanian law-book, The Book of a Thousand Judgements
(ca. 620 C.E.),40 a distinction is drawn between usufructory revenues
and the principal of a property:
If a thing conveyed (as an endowment) “for the soul” bears fruit
(= brings revenue), the fruit is (also) dedicated; but if it does not bear
fruit, then the “principal” (shall be dedicated as well as) that which
remains after the payment of the taxes and dues (with which the thing
is encumbered), and of the expenses for the maintenance of the “prin-
cipal,” and of the payments (“payments and rations”) to the trustees.41
38
Anahit Perikhanian, “Iranian Society and Law,” in The Cambridge History of Iran,
ed. Ehsan Yarshater (New York: Cambridge University Press, 1983), 3/2: 664. R. L.
Zettler has also noted parallels between a pre-Islamic Iranian temple and the waqf
ahlì. Zettler suggests that the position of a particular family group, the Ur-Meme,
may be explained by assuming that they administered the temple in a manner sim-
ilar to that of a waqf ahlì. Nevertheless, Zettler stops short of claiming that this type
of administrative structure was a precursor of the later Islamic waqf. See Zettler,
The Ur III Temple of Inanna at Nippur. The Operation and Organisation of Urban Religious
Institutions in Mesopotamia in the Late Third Millennium B.C. (Berlin: D. Reimer, 1992),
211ff.
39
Perikhanian, “Iranian Society and Law,” 3/2: 655.
40
Anahit Perikhanian and Nina Garsoïan, eds. and trans., The Book of a Thousand
Judgements: A Sassanian Law-Book (Costa Mesa, CA: Mazda Publishers, 1997), 12.
41
The Book of a Thousand Judgements, 97, no. 34, 2–3.
60
42
The Book of a Thousand Judgements, 99, no. 34, 12–15; Perikhanian, “Iranian
Society and Law,” 3/2: 661.
43
Perikhanian, “Iranian Society and Law,” 3/2: 656, 664–65. See, e.g., the pas-
sage in The Book of a Thousand Judgements, 75, no. 24, 12–13, in which a personal
endowment “for the soul” is considered analogous to one constructed for a Fire-
temple.
44
The Book of a Thousand Judgements, 99, nos. 34, 15–35, 6.
45
Said Amir Arjomand, “Philanthropy, the Law, and Public Policy in the Islamic
World Before the Modern Era,” in Philanthropy in the World’s Traditions, eds. Warren
F. Ilchman, Stanley N. Katz, and Edward L. Queen III (Bloomington, IN: Indiana
University Press, 1998), 110.
WAQF 61
have no influence on the waqf ?46 If they did, how does one mea-
sure and allocate the scope of influence and/or borrowing between
the potential antecedents? At best, one might tentatively conclude
that the evidence supports the claim that the Sassanian trust may
have had a significant influence on the waqf.
46
Singer has reached a similar conclusion in her analysis of the waqf ’s origins:
“Muslim religion and society first evolved in a region obviously replete with char-
itable traditions and examples. It is not necessary to sort out the proportionate con-
tribution of each religion or culture to what became the practice of endowment-making
in Islam.” Amy Singer, Constructing Ottoman Beneficence (Albany: State University of
New York Press, 2002), 24.
47
Patricia Crone, Roman, Provincial and Islamic Law: The Origins of the Islamic Patronate
(London and New York: Cambridge University Press, 1987), 5–6.
48
Crone, Roman, Provincial and Islamic Law, 5. The works to which Crone refers
are G. Bergsträsser, “Anfänge und Charakter des juristischen Denkens im Islam,”
Der Islam 14 (1925), 76–81; C. A. Nallino, “Considerazioni sui rapporti fra diritto
romano et diritto musulmano,” in Raccolta di scritti editi e inediti, vol. IV (Rome,
1942); G.-H. Bousquet, “Le mystère de la formation et des origines du fiqh,” Revue
algérienne, tunisienne et marocaine de législation et de la jurisprudence, 1947; A. Hassam, “Le
droit musulman et le droit roman,” Archives d’histoire du droit orientale, 1949, with
observations by J. Wigmore appended.
49
S. G. Vesey-FitzGerald, “The Alleged Debt of Islamic to Roman Law,” Law
Quarterly Review 67 (1951), 81–102, esp. 83.
62
Most of these parallels are due to what [ David de] Santillana calls
‘L’identité essentielle de l’âme humaine.’ But whatever indebtedness
there may be, the Islamic system remains unique and quite unlike any
other.50
More recently, Calder, Peters and Hallaq have reiterated these objec-
tions to foreign influences. Both Calder and Peters have remarked
that it is not unusual for different societies to reach similar legal
solutions to similar problems.51 Calder noted that purity laws exhibit
similarities across cultures even in the absence of extensive contact,52
and Peters has cautioned that “[b]efore raising the issue of influence,
one should investigate whether the emergence of a certain doctrine
or institution can be explained from within a legal system.”53 Hallaq
meanwhile has criticized historians for assuming that Arabian soci-
ety prior to the rise of Islam was a primitive, blank slate waiting to
absorb the more cultured Near Eastern civilizations.54 He has dis-
puted the premise that foreign legal practices and doctrines form the
backbone of the sharì'a and professed skepticism towards the widely-
held belief that foreign influences made a significant contribution to
Islamic law:
The fundamental structural differences between Islamic and ancient
Near Eastern legal systems makes the identification of influences on
the former by the latter virtually impossible; for though there persists
a nagging suspicion of borrowing, this suspicion can never be confirmed,
at least not with the present state of documentation. All that we, in
fact, have are some vague similarities between indigenous laws and the
Sharì'a that can never conclusively establish borrowings.55
50
S. G. Vesey-FitzGerald, “Nature and Sources of the Sharì'a,” in Law in the
Middle East: Origin and Development of Islamic Law, eds. Majid Khadduri and Herbert
J. Liebesny (Washington D.C.: The Middle East Institute, 1955), 1: 110.
51
Calder, Studies, 210; Rudolph Peters, “Murder in Khaybar: Some Thoughts
on the Origins of the Qasàma Procedure in Islamic Law,” ILS 9 (2002), 164.
52
Calder, Studies, 210. This same phenomenon also has been observed by Jacob
J. Finkelstein. With the exception of Western legal systems, which were influenced
by a peculiar interpretation of the Bible, almost all other societies have reached
similar conclusions with regards to compensation for the injury or killing of a per-
son by a domesticated animal. Finkelstein, “The Ox That Gored,” Transactions of
the American Philosophical Society 71/2 (1981), 62–64.
53
Peters, “Murder in Khaybar,” 163.
54
Wael B. Hallaq, “The Use and Abuse of Evidence: The Question of Provincial
and Roman Influences on Early Islamic Law,” JAOS 110/1 (1990), 81, 83.
55
Hallaq, “The Use and Abuse of Evidence,” 90.
WAQF 63
Hallaq has countered that the unique role of the Qur"àn in the for-
mation of Islamic law would have prevented the reception of Roman,
Byzantine, Persian and/or Jewish influences: “The law which Muslims
encountered in the conquered territories had, as a rule, to be modified
to accord with the laws laid down in the Qur"àn. It is no wonder
then that attempts to prove some specific debt of Islamic law to
other legal systems in conclusive and clear-cut terms have resulted
in failure.”56
Related to these arguments against foreign influence are those
which claim that the origins of the waqf can be found amongst the
practices of Jàhilì (pre-Islamic) Arabs. Two of the earliest published
pieces promoting this theory—which actually precede the afore-
mentioned arguments—were written by Ömer Hilmî and Syed A.
Majid. In the nineteenth century, Hilmî speculated that the waqf
could be ascribed to the Biblical Abraham/Ibràhìm.57 As evidence
for this claim, Hilmî noted that Abraham used his wealth to sup-
port the poor and the destitute as well as to provision guests and
strangers.58 In a 1908 article Majid asserted that “the institution of
wakf formed a part of the customary law of Arabia prior to the time
of Mohammed.”59 Majid explicitly rejected the premise that Roman
law provided the basis for the law of waqf: “[O]ne can but hesitat-
ingly affirm that the Arabian law, in spite of its various similarities
to the Roman law, was of independent growth and no more influenced
by the Roman law than the English common law shorn of all equi-
table doctrines.”60 Over half a century later Cahen proposed that
the ˙arams and ˙imàs61 of the Jàhilì Arabs may have provided a legal
56
Hallaq, “The Use and Abuse of Evidence,” 90.
57
The fifth-century Muslim jurist al-Sarakhsì noted this connection between
Abraham/Ibràhìm and the waqf: “And likewise, Ibràhìm made a waqf of Hebron
(al-Khalìl).” Al-Sarakhsì, Al-Mabsù†, 12: 28.
58
Ömer Hilmî, Ìthaf ül-Ahlâf fî Ahkâm ül-Evkaf (Istanbul, 1307/1889), 8–9. Cited
in Barnes, Introduction to Religious Foundations, 5–6.
59
Syed A. Majid, “Wakf as Family Settlement Among the Mohammedans,” Journal
of the Society of Comparative Legislation 9 (1908), 125.
60
Majid, “Wakf as Family Settlement,” 126.
61
Pre-Islamic ˙arams were sacred places that belonged to no one specific person.
The ˙aram was protected by a deity, and it maintained special rules and privileges.
In particular, fighting was not permitted in the ˙arams, which may explain their
centrality in the development of Arabian trading. A ˙imà, by contrast, was an
expanse of ground created by powerful nomadic lords to protect their flocks from
the ill-effects of drought. By creating the ˙imà, the lords reserved to themselves, and
64
their networks of relations and affiliates, the grazing and watering rights in certain
rich pasture lands. EI 2, s.v. “Óimà,” J. Chelhod, 3: 393.
62
Cahen, “Réflexions sur le waqf ancien,” 56. More recently, Christian Décobert
has expanded upon Cahen’s conclusions about the influence of the ˙imà and the
˙aram on the waqf. Décobert, Le mendiant et le combattant, 336–47.
63
Maurice Gaudefroy-Demombynes, Mahomet, 2d ed. (Paris: A. Michel, 1969),
42–43.
64
Patricia Crone, “Jàhilì and Jewish Law: The Qasàma,” JSAI 4 (1984), 200–01.
For a critique of Crone’s conclusions concerning the qasàma, see Peters, “Murder
in Khaybar,” 132–67.
WAQF 65
65
For a more optimistic assessment of historians’ ability to identify and draw
conclusions from pre-Islamic practices, see Peters, “Murder in Khaybar,” 132–67.
66
Barnes, Introduction to Religious Foundations, 7.
67
Barnes, Introduction to Religious Foundations, 7. Barnes claims that when the
Umayyad caliphs finally began to assign incomes from land revenues, they were
“basing themselves on Byzantine, and not pre-Islamic models.” This assertion, how-
ever, appears to be based on Barnes’ conviction that the waqf descended from the
Byzantine piae causae.
68
Barnes, Introduction to Religious Foundations, 6. Mohammad Zain Bin Haji Othman
has also concluded that there is no evidence to support the claim that Abraham
founded the first waqf. Mohammad Zain b. Haji Othman, “Origin of the Institution
of Waqf,” Hamdard Islamicus 6/2 (1983), 8.
66
69
See, e.g., Schacht’s assertion that the maxim “al-walad li-l-firàsh” (the child
belongs the owner of the marriage bed) originated from the Roman maxim pater
est quem nuptiae demonstrant. Schacht, Introduction to Islamic Law, 21. More recently, Uri
Rubin has discussed this maxim in his article “‘Al-Walad li-l-firàsh’ on the Islamic
Campaign Against «Zinà»,” Studia Islamica 78 (1993), 5–26. For a critique of Schacht’s
approach to the question of foreign influences, see Crone, Roman, Provincial and Islamic
Law, 7–12.
70
Schacht, Introduction to Islamic Law, 19.
71
Othman, “Origin of the Institution of Waqf,” 6.
WAQF 67
72
Peters has made a similar observation in his discussion of the qasàma oath. He
argues that the second qasàma doctrine was originally an administrative measure to
secure law and order in the newly founded garrison towns. Peters, “Murder in
Khaybar,” 139, 158, 161.
73
Several historians have argued that isti˙sàn functioned as a means of bringing
customary (or in this case, “foreign” cultural practices) in the sharì'a. Schacht,
68
In the two centuries between the rise of Islam and the creation
of the waqf treatises, the culture of the Near East had been trans-
formed dramatically. The sharp line separating Arab conquerors and
the conquered populations slowly dissolved through conversion to
Islam and intermarriage. As the Muslim community became more
heterogeneous, the distinction between “foreign” and Islamic prac-
tices must have become increasingly confused.74 As a result, by the
beginning of the third century A.H., there was likely no overarch-
ing Islamic law of trusts, but merely a collection of local practices—
Roman, Byzantine, Persian, Jewish, and Arab—that all shared some
similar features, and almost certainly used different terminologies.
The task confronting jurists such as Hilàl and al-Khaßßàf was how
to bring some measure of uniformity to this diverse landscape of
trust practices and terminologies. The legal institution these authors
devised to bring order to this milieu of trust practices—the “waqf ”—
permitted Roman, Byzantine, Persian and/or Jewish practices to
enter (perhaps unnoticed) into the sharì'a. Whether Hilàl or al-Khaßßàf
was aware of the “foreign” origins of some of these practices remains
an open, and probably unanswerable, question. There is certainly
no indication in the waqf treatises that either author was attempting
to draw a line between “Islamic” and “foreign” practices. Moreover,
by the third century A.H., it is not clear whether such a distinction
could be made within an increasingly heterogeneous Muslim com-
munity. By the middle of the third century there existed within
Islamic society a range of trust-like practices whose “foreign” roots
had long since been severed and were now seen as a continuation
of the practices of the Prophet and his Companions. Just as Islam
conjoined people of diverse cultures under one religion, the signifier
“waqf ” fused elements of various institutions—the res sacrae, the piae
causae, the fidei commissum, the ruvànagàn, the heqdèsh, the ˙aram, the
Introduction to Islamic Law, 204; Hallaq, “Considerations on the Function and Character
of Sunnì Legal Theory,” 682; Libson, “On the Development of Custom,” 138,
150–152. Libson writes that “isti˙sàn . . . became a common means for assimilating
custom and usage.” The Islamic tradition also recognizes the role of isti˙sàn as a
conduit for customary practices. See al-Sarakhsì, Al-Mabsù†, 15: 90 (defining isti˙sàn
as “analogy abandoned in favor of custom” (al-qiyàs yutrak bi"l-'urf )).
74
The difficulty of distinguishing between foreign and Islamic practices arises in
other contexts. For example, how should one classify a Sassanian land tax adopted
by the 'Abbàsid bureaucracy? Is this tax still “foreign” or is it now “Islamic”?
WAQF 69
75
The ˙adìths performed a similar function by providing an Arab-Islamic past to
practices and legal concepts from other cultures.
76
Other historians have observed that social realities influenced the development
of Islamic law, especially in those areas not explicitly mentioned in the Qur"àn.
Brunschvig, for example, noted the influence of existing social practices in his analy-
sis of the laws surrounding legal majority, paternity disputes, and the status of slaves
and women. Robert Brunschvig, “Considérations sociologiques sur le droit musul-
man ancien,” in Études d’Islamologie (Paris: G.-P. Maisonneuve and Larose, 1976), 2:
119–31. Udovitch, in his discussion of the Óanafì law of commercial practice, com-
mented on the willingness of early Óanafì jurists to yield to “practical necessity”
and to define the law of commercial partnerships very broadly. Udovitch argued
that through the use of isti˙sàn, or judicial preference, Óanafì jurists were able to
bring the customary practices of second- and third-century A.H. Muslim merchants
into the sharì'a:
Rather than insist on the rigid application of legal norms and risk thereby
almost certain violation of an untenable and unenforceable prohibition, they
70
Although the lawyer class would ultimately define the precise para-
meters of this institution, the creation of the “waqf ” as a distinctly
Islamic legal institution was the culmination of a long, organic process
that began with the practices of the Muslim community and stretched
over several generations.77
78
The use of the term “waqf ” in this quotation may not be an authentic repro-
duction of Abù Óanìfa’s speech. This term appears to have been used rarely in
early legal discourse, which suggests that Abù Óanìfa’s utterance of the term “waqf ”
may be anachronistic. Since the purpose of Hilàl’s introduction is to define the legal
parameters of a waqf vis-à-vis other forms of charity such as the ßadaqa, Hilàl may
have found it useful to have Abù Óanìfa differentiate between the terms “ßadaqa”
and “waqf ” in order to set the stage for the next several pages of discussion in the
A˙kàm al-Waqf.
79
Hilàl al-Ra"y, A˙kàm al-Waqf, 2.
72
ment that the statement “This land of mine is a ßadaqa” does not
create a waqf.80 Our confusion, however, is shared by the qultu figure,
who steps forward and asks Abù Óanìfa why he draws this distinction:
Why do you say this [i.e., that it is not a waqf ] if he says, “This land
of mine is a ßadaqa,” and does not add anything to this, but never-
theless gives it away as alms for the poor and the destitute? (taßaddaqa
bi-hà 'alà al-fuqarà"i wa"l-masàkìn).81
As Hilàl’s treatise illustrates, answering this question required defining
the legal meaning of ßadaqa—a term which had come to have sev-
eral contradictory significations by the third Islamic century.82
Íadaqa
Although explicating the difference in meaning between a ßadaqa
and a waqf is a central focus of Hilàl’s introduction, the historical
context behind the evolution of these two terms is largely absent
from his work. While Islamic law would eventually define ßadaqa as
a voluntary form of alms-giving whose qualities and amounts are
indeterminate, early usage of the term indicates that it was a manda-
tory, state-collected alms-tax rather than a voluntary charity. For
example, 'Umar b. 'Abd al-'Azìz (d. 101/720) equated the plural
form “ßadaqàt” with a state-collected alms-tax:
And as for the Muslims, the only obligation incumbent upon them is
the alms of their properties ( fa-ammà al-muslimùn fa-innamà 'alayhim
ßadaqàtu amwàlihim). When they pay it to the Treasury (bayt al-màl ),
they receive a written indemnity (barà"a), and nothing more is incum-
bent upon them in this matter with respect to their properties for that
year.83
80
According to Abù Óanìfa, a perpetual endowment could not exist, because
property remained in the possession of its founder and was subject to the rules of
the Islamic inheritance system when the founder died. This opinion was not fol-
lowed by his companions Mu˙ammad b. al-Óasan al-Shaybànì and Abù Yùsuf.
EI 2, s.v. “Wa˚f,” R. Peters, 11: 62.
81
Hilàl al-Ra"y, A˙kàm al-Waqf, 2.
82
The Arabic meaning of ßadaqa as “charity” or “alms” appears to have been
appropriated from the Hebrew ßedàqà. Franz Rosenthal has examined the process
by which the Hebrew ßedàqà acquired a meaning of “charity” and then became a
loan-word for the Islamic usage of ßadaqa. See Rosenthal, “Sedaka, Charity,” Hebrew
Union College Annual 23/1 (1950–51), 411–30.
83
'Abd Allàh b. 'Abd al-Óakam, Sìrat 'Umar b. 'Abd al-'Azìz (Damascus, 1964),
WAQF 73
Similarly, in the Kitàb al-Kharàj of Abù Yùsuf (d. 182/798) the term
“ßadaqàt” is used for a levy on camels, cattle, sheep, and horses.84 In
the Qur"àn, the term is further differentiated. In two places, the sin-
gular form ßadaqa means voluntary charity,85 while in the only pas-
sage in which the Qur"àn speaks directly of an official duty to
distribute alms, the plural form is used.86
This terminological confusion concerning ßadaqa is further magni-
fied in early juristic writings and ˙adìth collections. Often, the term
ßadaqa is used synonymously with zakàt, the term we now associate
with an alms-tax fixed by law. For example, ˙adìths in the Ía˙ì˙ of
al-Bukhàrì reveal that the word ßadaqa is used just as often as zakàt
in discussions of the alms-tax.87 In the Muwa††a" of Màlik b. Anas,
the term ßadaqa is employed frequently in a chapter entitled Kitàb
al-Zakàt.88 Interestingly, Màlik understood the two terms as distinct
taxes on different types of property.89 In the Muwa††a" the term ßadaqa
is affixed to agricultural goods such as livestock90 while the term zakàt
is used for precious metals such as dirhams, gold and silver.91 But it
92
An editor’s note informs us that this Abù Bakr is Abù Bakr b. 'Amr al-
Shaybànì, who is more commonly known as al-Khaßßàf, the author of the A˙kàm
al-Awqàf. Al-Khaßßàf, A˙kàm al-Awqàf, 4, n. 1.
93
Al-Khaßßàf, A˙kàm al-Awqàf, 4.
94
Al-Khaßßàf, A˙kàm al-Awqàf, 10, in four places.
95
Al-Khaßßàf, A˙kàm al-Awqàf, 10.
96
Hilàl al-Ra"y, A˙kàm al-Waqf, 72, in two places.
WAQF 75
gift. The former resembles a waqf in that the principal and yields
are separated, and only the usufruct of the property is given away
to charity. This type of ßadaqa could continue for several years, but
unlike a waqf, the principal of this ßadaqa was not rendered inalien-
able in perpetuity through sequestration, but rather remained in the
possession of the founder. When the founder of the ßadaqa died, the
charity ceased, and the property that had been made a ßadaqa was
distributed to the founder’s heirs and/or legatees according to the
laws of intestacy and testacy. When a ßadaqa functioned as alms-
giving, however, it correlated more closely with a charitable hiba in
which the principal of the object was transferred completely to another
person. When such a transaction occurred, any rights belonging to
the heirs ceased at the moment of transaction.
Delving into this terminological quagmire restores some of the his-
torical context for the A˙kàm al-Waqf. Based upon the surviving ˙adìth
record, it seems clear that during Hilàl’s lifetime properties existed
which people referred to as ßadaqas, but which conveyed the mean-
ing of a perpetual pious endowment. For example, Hilàl himself dis-
cusses the “ßadaqa of 'Umar,” but it is clear from the context of his
discussion that this property is what would subsequently be desig-
nated a “waqf.”97 While the terminological meaning of such famous
endowments might have been self-evident, it probably was clear to
jurists that failure to clarify this terminology would lead (or had
already led) to legal confusion. For instance, what if the neighbors
of a deceased man came to the local qà∂ì alleging that the dece-
dent had made the yields of his date-palm trees a “ßadaqa” on their
behalf, while the children of the decedent asserted that their father
had intended this ßadaqa to be only a temporary charity, and hence,
the yields and principal should pass to them as an inheritance? Should
the qà∂ì declare the ßadaqa to be a perpetual pious endowment for
the decedent’s neighbors, or an inheritance for his heirs? Furthermore,
if a ßadaqa encompassed only agricultural products, as suggested in
Màlik’s Muwa††a", did this restriction preclude the possibility of des-
ignating a residence or a mosque as a pious endowment? And lastly,
97
Hilàl al-Ra"y, A˙kàm al-Waqf, 72–73. In this section, Hilàl refers to 'Umar’s
waqf both as a ßadaqa and a waqf. This property is clearly a perpetual pious endow-
ment, because Hilàl discusses the provisions 'Umar made for the continued admin-
istration of this property after his death and the inter-generational transfer of the
property to his daughter, Óafßa.
76
98
The difficulty of resolving such cases would have also hampered the qà∂ì’s
ancillary function of resolving communal tensions and re-establishing communal har-
mony. See Powers, Law, Society, and Culture in the Maghrib, 82 (on the qà∂ì’s role in
the settling of intra-community disputes).
99
This sentence is not in the “Madìna” version of the A˙kàm al-Waqf. Hilàl al-
Ra"y, A˙kàm al-Waqf, 3, n. 1.
100
Hilàl al-Ra"y, A˙kàm al-Waqf, 3.
101
Hilàl al-Ra"y, A˙kàm al-Waqf, 7.
WAQF 77
102
Hilàl al-Ra"y, A˙kàm al-Waqf, 11–12.
103
Hilàl al-Ra"y, A˙kàm al-Waqf, 4.
104
EI 1, s.v. “Wa˚f,” W. Heffening, 4: 1096.
78
illustrate this point, Hilàl notes that the statement, “This land of
mine is a waqf,” is equivalent to saying, “This land of mine is
mawqùfa,” or “This land of mine is ma˙bùsa.” That is to say, the
founder has stipulated only that the property is sequestered or immo-
bilized from commercial transactions.105 In neither case, according
to both Hilàl and Abù Óanìfa, do these two expressions designate
a ßadaqa or a waqf, because no charitable disposition for the prop-
erty has been specified.106 Hilàl notes that only Abù Yùsuf believed
that the declaration, “This land of mine is a waqf,” created a valid
pious endowment because he held that the terms mawqùfa and waqf
signified “for the destitute” (li"l-masàkìn) and, therefore, implicitly des-
ignated a specific charitable purpose.107
If the expressions, “This land of mine is a ßadaqa,” and, “This
land of mine is a waqf,” fail to designate a valid waqf, Hilàl con-
cludes that the intermingling of these two expressions establishes a
pious endowment:
I said: And if he says, “This land of mine is a ßadaqa mawqùfa”?
He said: It is permitted. He sequesters its principal and gives its yields
as alms for the destitute in perpetuity ( yùqifu aßlahà wa yataßad-
daqu bi-ghallatihà 'alà al-masàkìni abadan). And there is no possi-
bility for revocation, and it is made inalienable for God in
perpetuity (takùna mawqùfan li"llàhi abadan) according to the con-
ventions of a valid waqf (al-waqf al-jà"iz).108
The distinction that Hilàl draws between a ßadaqa, a waqf, and a
ßadaqa mawqùfa is more than a semantic game. By defining ßadaqa as
charity and mawqùfa as that which has been made inalienable, or
removed from commercial transactions in perpetuity,109 Hilàl points
105
Although this statement conveys the literal meaning of “This land of mine is
mawqùfa/ma˙bùsa,” it is not entirely clear what Hilàl envisions when he speaks of
property that has become “mawqùfa” or “ma˙bùsa.” Other than creating a pious
endowment, I am not certain under what conditions a person would be permitted
to remove property from commercial transactions. As a result, Hilàl’s use of these
phrases may be more theoretical than grounded in reality.
106
Hilàl al-Ra"y, A˙kàm al-Waqf, 4.
107
Hilàl al-Ra"y, A˙kàm al-Waqf, 4.
108
Hilàl al-Ra"y, A˙kàm al-Waqf, 6.
109
The term mawqùfa, unlike the term ßadaqa, does not appear to have had a
multiplicity of meanings. However, the concept of sequestering property would
appear, on its face, to be broad enough to encompass restrictions on property trans-
fers that fell short of making the property inalienable.
WAQF 79
out that a waqf must contain both of these elements (in any order)110
to be considered valid. The absence of one of these elements turns
the property into either a charity (ßadaqa) or a sequestered/immobi-
lized property (mawqùfa). Hilàl’s conclusions on this matter can be
expressed through the following equation: a valid waqf = charity
(ßadaqa) + inalienability/perpetuity (mawqùfa).
Óubs/Óabìs/Ma˙bùsa/Mu˙arrama
The early Muslim community also employed the terms “˙ubs/˙abìs/
ma˙bùsa” and “mu˙arrama” when referring to endowments that Hilàl
and al-Khaßßàf would later call waqfs.111 For example, in the Kitàb
al-Umm, al-Shàfi'ì devotes a long section to pious endowments in his
chapter on preemption (Kitàb al-Shuf 'a). Although al-Shàfi'ì does
employ the term waqf during the course of his discussion,112 he eschews
this word for the sub-titles to this chapter. Instead, the Kitàb al-Shuf 'a
contains sections entitled “al-a˙bàs,” “al-khilàf fì"l-ßadaqàt al-mu˙arramàt,”
“al-khilàf fì "l-˙ubs wa-hiya al-ßadaqàt al-mawqùfàt,” and “wathìqa fì "l-
˙ubs.”113 Similarly, the ˙adìths in the introduction to al-Khaßßàf ’s trea-
tise demonstrate the extent to which the term “˙ubs” was utilized to
signify a waqf. In another ˙adìth concerning the first “waqf ” in Islam,
the terms ßadaqa and ˙ubs are used interchangeably to denote a pious
endowment:
Mu˙ammad b. 'Umar al-Wàqidì—'Utba b. Jubayra—al-Óusayn b.
'Abd al-Ra˙màn b. 'Amr b. Sa'd b. Mu'àdh: He said: We asked about
al-˙ubs, the first ˙ubs in Islam, and someone said that the ßadaqa of the
Messenger of God was the first [thing to be] sequestered (˙ubbisa) in
Islam. And this is the opinion of the Helpers.114
Semantically, the terms ˙ubs, ˙abìs, ma˙bùsa, and mu˙arrama have their
parallels in the terms waqf and mawqùfa. Just as a waqf expresses the
idea of “restraining” property such that it becomes inalienable, to
make an object a ˙ubs is to “sequester” it. Likewise, property that
is mawqùfa has become inalienable, sequestered (˙abìs, ma˙bùsa), or
110
Hilàl al-Ra"y, A˙kàm al-Waqf, 12.
111
Whether the terms ˙ubs, ˙abìs, ma˙bùsa, and mu˙arrama originally had distinct
meanings seems to have become a moot point by the third century A.H.
112
Al-Shàfi'ì, Kitàb al-Umm, 4: 55.
113
Al-Shàfi'ì, Kitàb al-Umm, 4: 51–61.
114
Al-Khaßßàf, A˙kàm al-Awqàf, 4.
80
115
Hilàl al-Ra"y, A˙kàm al-Waqf, 7.
116
Abù Khàlid Yùsuf b. Khàlid was reportedly a follower of Abù Óanìfa and is
credited with being among the first to bring the ideas of Abù Óanìfa to Baßra. He
reportedly wrote a book on contracts (Kitàb al-Shurù†) and was alleged to have been
a Jahmite. Yùsuf b. Khàlid’s biographical entry (tarjama) has nothing positive to say
about him as a transmitter of ˙adìth (mu˙addith). He is accused of being a liar (kadh-
dhàb), weak (∂a' ìf ) and unreliable (laysa bi-thiqa), which led some mu˙addithùn to
refuse to record his ˙adìth (là yaktubu ˙adìthahu). Ibn Óajar al-'Asqalànì, Tahdhìb al-
Tahdhìb, 11: 411–13. The disparaging tone of Yùsuf b. Khàlid’s tarjama and his
alleged association with the Jahmiyya may be a reflection of his close association
with Abù Óanìfa and the aß˙àb al-ra"y.
WAQF 81
I said: And what if it were the case that he said, “This land of mine
is mawqùfa ˙abìs mu˙arrama, that is not to be sold, given away as
a gift, or inherited,” and he did not add anything to this?
He said: This and the previous example are equivalent to one another.
And it is not permitted until he includes a meaning of ßadaqa, or
the destitute, in addition to the sequestration of the principal. . . .117
Under Hilàl’s terminological rubric, the term “waqf ” is not a self-
defining term, but consists of two concepts—ßadaqa and mawqùfa,
which, when juxtaposed with another, make the property a pious
endowment in perpetuity. Reliance on these terms, however, posed
certain problems. In the case of ßadaqa, the term had acquired a
multiplicity of meanings within Islamic culture. In the case of mawqùfa,
there were additional terms—˙ubs, ˙abìs, ma˙bùsa, and mu˙arrama—
that might or might not mean the same thing. A legal order in
which so many terms have multiple or ambiguous meanings is a
prescription for chaos. The waqf treatises eliminated this ambiguity
by (i) creating a new signifier—the “waqf ”—to distinguish these pious
endowments from other related forms of charity and gifts; and (ii)
bringing clarity and terminological order to the underlying legal con-
cepts—ßadaqa and mawqùfa—that formed the institution.
Charitable Elements
If the first part of Hilàl’s introduction is concerned with conflating
the meanings of various terms into the “waqf = ßadaqa + mawqùfa”
equation, the second half focuses on defining the inter-relationship
between charity, inalienability and perpetuity. In order for a waqf to
be valid, Hilàl argues that the charitable remainder of the endow-
ment must be a special kind of charity that has no possibility of
extinction. Consequently, a waqf designated exclusively for one’s fam-
ily members would not be considered valid, because the extinction
of one’s family line is possible. And if this extinction occurred, then
the endowment’s remainder interest would be without a charitable
purpose:
I said: What is your opinion if someone says, “This land of mine is
mawqùfa for my children and my descendants”?
117
Hilàl al-Ra"y, A˙kàm al-Waqf, 7–8.
82
He said: This is not permitted because he did not specify its ultimate
disposition for the destitute (li"l-masàkìn), nor did he make any
explicit or implicit reference to ßadaqa and the destitute. However,
if he had said, “ßadaqa mawqùfa,” the destitute are implied in his
speech “ßadaqa,” and it would be permitted.
[I said]: And likewise if it were the case that he said, “This land of
mine is mawqùfa and it may not be sold, nor given away as a
gift, nor inherited by my children and my descendants”?
He said: Yes, this and the previous example are equivalent to one
another. And it is something which is not permitted unless he
says “ßadaqa” and makes its ultimate disposition for the destitute.118
Other categories of charity that Hilàl holds to be eternal are waqfs
designated for travelers (ibn al-sabìl ), the Holy War (al-jihàd ), the
manumission of slaves ('itq al-riqàb), and orphans (al-yatàmà).119 But
in each of these cases, the categories of charity must be defined
broadly enough so that extinction is not possible. As a result, while
a waqf for orphans would be considered valid, a waqf for the orphans
of a specific tribe would not:
I said: And likewise, what if it were the case that he said, “This land
of mine is mawqùfa for the orphans of the Banù so-and-so,” and
they are part of his tribal group and they are allotted a share?
He said: The waqf is invalid. Do you not see that if they die out, the
ultimate disposition of the waqf would not be known. And this
has the same status as his speech, “mawqùfa for so-and-so” to
which he did not add anything. And this is invalid and not per-
mitted because he does not say “ßadaqa,” nor designate its ulti-
mate disposition for the destitute, nor designate it for one of the
several types of charity (wujùh al-birr) which are incapable of
becoming extinguished.120
At the heart of the above discussions is the issue of temporality.
While the “waqf = ßadaqa + mawqùfa” equation remains the basis for
Hilàl’s conclusions, this section expands the meaning of this equation
to encompass future points in time. It is not enough that a chari-
table purpose and a state of inalienability exist at the beginning of
118
Hilàl al-Ra"y, A˙kàm al-Waqf, 10.
119
These categories of charity closely resemble those mentioned in Qur"àn 9.60:
the poor (al-fuqarà"), the destitute (al-masàkìn), slaves (al-riqàb), debtors (al-gharà"im),
the Holy War ( fì sabìl Allàh), and travelers (ibn al-sabìl ). The Qur"àn also contains
many injunctions to show kindness and charity to orphans. See Qur"àn 2.220.
120
Hilàl al-Ra"y, A˙kàm al-Waqf, 11.
WAQF 83
the endowment’s creation, these two elements also must have the
potential to co-exist, in perpetuity, “until God inherits the heavens
and earth which belong to Him as an inheritance.”121
121
Hilàl al-Ra"y, A˙kàm al-Waqf, 8. This phrase appears to be a paraphrase of
Qur"àn 3.180 and 57.10. Qur"àn 3.180 states, “It is God who will inherit the heav-
ens and the earth,” while 57.10 states, “God alone will inherit the heavens and the
earth.”
122
As discussed in the introduction to chapter one, it may be anachronistic to
apply the term “Óanafì” to third-century jurists and their legal reasoning.
123
Hilàl al-Ra"y, A˙kàm al-Waqf, 6–7.
124
Al-Khaßßàf, A˙kàm al-Awqàf, 4–12.
84
125
Hilàl al-Ra"y, A˙kàm al-Waqf, 6.
126
Al-Khaßßàf, A˙kàm al-Awqàf, 260.
127
Al-Khaßßàf, A˙kàm al-Awqàf, 50.
WAQF 85
128
Hallaq, “Was al-Shàfi'ì the Master Architect?” 598.
129
Hallaq, “Was al-Shàfi'ì the Master Architect?” 597–98. Although Hallaq is
correct to note that Schacht over-emphasized the role of al-Shàfi'ì in the ascen-
dance of the traditionalist movement, Schacht’s contention that independent legal
reasoning preceded the use of ˙adìths remains essentially correct. See Schacht, Origins,
1–137. A similar understanding of this evolution in Islamic legal discourse forms
the basis for Calder’s assertion that the Mudawwana of Sa˙nùn is an earlier text
than the Muwa††a" of Màlik b. Anas. The chronological methodology constructed
in Calder’s work is centered on the premise that the earliest juristic writings were
discursive (i.e., derived from independent reasoning, or ra"y) while the hermeneuti-
cal/exegetical methodology of the traditionalists did not begin to affect legal think-
ing until the third century A.H. See Calder, Studies, 1–38. For a critique of Calder’s
chronological conclusions, see Brockopp, Early Màlikì Law, chapter 2.
130
Schacht, Origins, 140. Schacht described the first half of the third century A.H.
as a “particularly vigorous” period in the creation of Prophetic ˙adìths.
86
131
Melchert, “Traditionist-Jurisprudents,” 389 (“It would be going too far to
assert that the ninth-century [C.E.] aß˙àb al-ra"y, by contrast, relied exclusively on
rational speculation to determine the law. As far back as the sources will take us,
on the contrary, it is plain that aß˙àb al-ra"y did use ˙adìth, at least to corroborate
the results of their speculation.”).
132
Al-Khaßßàf ’s use of the plural form “wuqùf ” is a little difficult to explain, par-
ticularly when the title of his treatise employs the plural form “awqàf.” Based upon
a cursory examination of al-Khaßßàf ’s waqf treatise, I discovered that the use of
“wuqùf ” is actually more prevalent than “awqàf.” I found seven uses of “wuqùf ” in
the qultu/qàla dialogues and only one usage of “awqàf.” Why al-Khaßßàf should pre-
fer one plural form over the other remains something of a mystery, although it
does highlight a discontinuity between the title of the treatise and al-Khaßßàf ’s use
of terminology. Based on the predominant usage of the plural “wuqùf ” in the text
of the treatise, one would expect the title to be the A˙kàm al-Wuqùf. This discrepancy
WAQF 87
suggests that the current title may be a later emendation. For the use of the plural
“wuqùf ” see, al-Khaßßàf, A˙kàm al-Awqàf, 19 (in two places, also confirmed in the
fourteenth-century C.E. British Library copy), 134 (in three places), 203, and 335
(used as a chapter heading). For the use of the plural “awqàf,” see page 212 (mis-
spelled as “al-awqàt”).
133
Al-Khaßßàf, A˙kàm al-Awqàf, 18.
134
Hilàl al-Ra"y, A˙kàm al-Waqf, 6 (“[A]nd 'Umar made [his property] a waqf
according to the directives of the Messenger of God. And 'Alì b. Abì ˇàlib, al-
Zubayr b. al-'Awàmm, and others from among the Companions of the Prophet
made waqfs.”).
88
135
The fact that al-Khaßßàf was a rationalist would not have excluded him from
the biographical dictionaries. As the tarjama of Abù Khàlid Yùsuf b. Khàlid illus-
WAQF 89
141
Clearly, access to the Kitàb al-Wuqùf wa"l-Íadaqàt of Mu˙ammad b. al-Óasan
al-Shaybànì would be helpful for assessing the accuracy of this conclusion.
142
Sa˙nùn, Al-Mudawwana, 15: 98–117.
143
Al-Shàfi'ì, Kitàb al-Umm, 4: 51–61. Al-Shàfi'ì does use the term “waqf ” but
he more commonly refers to pious endowments as ˙ubs, ßadaqa, ßadaqa mu˙arrama,
etc. Even more telling is al-Shàfi'ì’s title to this section of the Umm—“al-a˙bàs.”
144
Yùsuf Rà©ib, “Acte de waqf d’une maison,” in Marchands d’étoffes du Fayyoum
au III e/IX e siècle: Les Actes des Banù 'Abd al-Mu"min (Cairo: Institut français d’archéolo-
gie orientale du Caire, 1982), 36–45. Interestingly, the term “waqf ” is never used
in the deed. Rather, the endowment is described as a “˙ubs” and a “˙ubs ßadaqa.”
145
Moshe Sharon, “Waqf Inscription from Ramla c. 300/912–913,” 106. See also
idem, “A Waqf Inscription from Ramlah,” Arabica 13 (1966), 77, for the use of the
verb “waqqafa.”
WAQF 91
waqf an).146 Admittedly, the sources which form the basis for these con-
clusions are few, but they suggest that use of the term “waqf ” became
more common in the late third and early fourth centuries A.H., or,
roughly two or three generations after the production of the waqf
treatises.
A careful reader may have noticed a certain incongruity in the
previous discussion. On the one hand, much has been made about
the importance of the waqf equation in bringing terminological order
to the law of Islamic trusts. On the other hand, it also seems clear
that Muslims used the term “waqf ” to refer to pious endowments,
even though the term, by itself, was considered legally insufficient to
create a valid pious endowment.147 Even Hilàl and al-Khaßßàf use
the term “waqf ”—repeatedly—to denote pious endowments in their
treatises. Two theories might explain this incongruity in usage. First,
use of the term may simply reflect the disjunction between collo-
quial and legal terminology. In many circumstances, the colloquial
use of “waqf ” would have been sufficient to convey the meaning of
a pious endowment. However, in other contexts, such as the cre-
ation of a waqf deed, the precise legal terminology of the waqf equa-
tion would have been required in order to provide legal certainty
that the founder intended to create a perpetual, pious endowment
and not some other form of charity or gift.148 Second, the term
“waqf ” was probably a type of legal shorthand. In the waqf treatises,
the qultu and qàla figures often use the term “waqf ” after the founder
has satisfied the precise legal terminology of the waqf equation because
the underlying legal meaning of the endowment—as expressed in
the juxtaposition of ßadaqa and mawqùfa—is now clear and unam-
biguous. The creation of a new signifier for perpetual, charitable
endowments was only half the battle, however. Since the waqf nec-
essarily impacted the inter-generational transmission of wealth, its
ambiguous relationship with the Islamic law of inheritance ('ilm al-
farà"i∂ ) and the law of bequest (al-waßiyya) also required clarification.149
146
Max van Berchem, Matériaux pour un corpus inscriptionum arabicarum (Paris:
E. Leroux, 1894–1956), 52/2, 92.
147
Hilàl al-Ra"y, A˙kàm al-Waqf, 4; see also “Waqf = Íadaqa + Mawqùfa” section, supra.
148
There is evidence from later periods that qà∂ìs may have played a significant
role in the drafting of legal instruments, which would have provided an opportu-
nity to translate the colloquial expressions for pious endowments into the language
of the law. See Powers, Law, Society, and Culture in the Maghrib, 137, 159.
149
Hilàl’s and al-Khaßßàf ’s terminological efforts were not limited solely to defining
92
From the perspective of the historian, the waqf clearly seems to have
functioned as an antidote to the restrictions and atomizing effects of
the 'ilm al-farà"i∂. That Muslims wished to exert more control over
the disposition of their property is a recurrent theme that begins in
the early Islamic period.150 Initially, Muslims appear to have used
bequests—not waqfs—as a means for circumventing the 'ilm al-farà"i∂.151
But with the restriction of bequests to non-heirs and to only one-
third of an estate—a rule which may not have developed until the
second century A.H.152—pious endowments emerged as one of the
few recourses Muslims had for maintaining control over the dispo-
sition of their wealth. In fact, the growth and importance of the waqf
within Islamic society is inextricably linked to the emergence of the
uniquely Islamic 'ilm al-farà"i∂.153 After all, most societies possess some
the terms that became the waqf equation. Other areas of confusion addressed in
the treatises involved the terms used to designate beneficiaries, the poor, and var-
ious ambiguous grammatical distinctions. Appendix D analyzes these efforts.
150
David S. Powers, “On Bequests in Early Islam,” JNES 48 (1989), 190–91.
Although Powers limits his discussion to an analysis of how prominent Muslims,
such as Sufyàn al-Thawrì (d. 161/778), attempted to ignore the one-third restric-
tion on bequests, the motivations underlying such actions are similar to those that
led Muslims to establish waqfs—a general unhappiness with the compulsory nature
of the 'ilm al-farà"i∂.
151
Powers argues that originally there were no restrictions on bequests and that
the 'ilm al-farà"i∂ took effect only in the absence of a last will and testament. Powers,
Studies in Qur"àn and Óadìth: The Formation of the Islamic Law of Inheritance (Berkeley:
The University of California Press, 1986), 107, 210–12. For a critique of Powers’
conclusions, see Richard Kimber, “The Qur"ànic Law of Inheritance,” ILS 5 (1998),
291–325.
152
This dating is based upon Powers’ assertion that the “No bequest to an heir”
maxim (là waßiyya li-wàrith) did not exist until the end of the first century A.H. and
did not acquire Prophetic status until the end of the second century A.H. Powers,
Studies, 216.
153
Islamic society is not the only one to have had its laws influenced by a sacred
text. In “The Goring Ox,” Jacob J. Finkelstein examined how the now-defunct law
of deodands resulted from an unusual interpretation of Biblical law. A deodand—
literally, a thing to be given to God—was an amercement made to the Crown
when wrongful death occurred. For example, if my ox gored your father, I would
pay the Crown a deodand for your father’s wrongful death. Significantly, however,
this forfeiture was not considered compensation for the life of the wrongfully deceased,
but rather a religious expiation to God’s earthly agent, the Crown. From the mod-
ern perspective, the law of deodands seems rather odd, because the amercement
for wrongful death goes to the Crown rather than the kin of the deceased. In fact,
the law of deodands is notably dissimilar from how almost every other culture has
dealt with wrongful death. Finkelstein argues that a Biblical “revulsion” against com-
WAQF 93
puting the value of human life in pecuniary terms shaped the peculiar nature of
the institution. Confronted with this (perceived) Biblical proscription, English jurists
formulated the unusual—actually, unique—law of deodands to impose a penalty for
wrongful death without suggesting that the decedent’s life had been measured in
monetary terms. Finkelstein, “The Goring Ox: Some Historical Perspectives on
Deodands, Forfeitures, Wrongful Death and the Western Notion of Sovereignty,”
Temple Law Quarterly 46 (1973), 169–290, esp. 169–83.
154
The verses in question are Qur"àn 4.8, 4.11–12, and 4.176.
155
Hilàl al-Ra"y, A˙kàm al-Waqf, 5–6. A similar version of this ˙adìth is found in
al-ˇa˙àwì, Shar˙ Ma'ànì al-Àthàr, 4: 99.
156
Al-Bayhaqì, Kitàb al-Sunan al-Kubrà, 6: 162.
94
157
Al-Shàfi'ì, Kitàb al-Umm, 4: 58.
WAQF 95
nature of the waqf with the non-eternal bequest,158 and observes that
while a bequest can be revoked, there is no right of withdrawal in
a waqf.159 Moreover, both treatise authors remark that while a waqf
can include those who have not yet come into existence, a bequest
is limited solely to those who exist on the day the testator dies.160
And as for the case of a recipient who refuses his or her share from
a bequest or a waqf, Hilàl notes that the refused share of a bequest
returns to the testator’s heirs while in a waqf this same share is dis-
tributed among the remaining beneficiaries of the waqf, or is desig-
nated for the endowment’s ultimate charitable disposition, should no
other beneficiaries exist.161
These differences also extend to the usufructs of the two legal con-
cepts. As the following qultu/qàla dialogue illustrates, in the case of
a bequest of a property’s usufruct, the bequest is limited to those
recipients who exist on the day the founder dies, and the principal
of the property (al-aßl ) is eventually returned to the founder’s heirs.
By contrast, in the case of a waqf, the principal is never returned to
the heirs, and the yields continue their charitable function in per-
petuity and can be distributed to beneficiaries who have not yet
come into existence:
I said: What is your opinion of a man who says, “After my death,
the yields of my land are given to the children of 'Abd Allàh
and his descendants so long as they beget offspring.” He did not
say “ßadaqa mawqùfa,” nor designate it as a ßadaqa mawqùfa, nor
make its final disposition for the destitute.
He said: It is permitted as a bequest (waßiyya) from the third. And the
yields are for the children of 'Abd Allàh who have come into
existence ( fa-takùn al-ghallatu li-waladi 'Abd Allàh al-makhlùqìn)—to
the exclusion of those who have not come into existence from
the children and the descendants—so long as they remain [liv-
ing]. And when they die out, the land is returned to the dece-
dent’s heirs (warathat al-mayyit), and it is divided amongst them
according to their shares ('alà farà"i∂ihim). Its principal is distrib-
uted amongst them, and it is not a waqf.
I said: And you do not assign a usufructory right to those who have
not yet been created among the children and descendants?
158
Al-Khaßßàf, A˙kàm al-Awqàf, 259.
159
Al-Khaßßàf, A˙kàm al-Awqàf, 248.
160
Hilàl al-Ra"y, A˙kàm al-Waqf, 138; al-Khaßßàf, A˙kàm al-Awqàf, 260.
161
Hilàl al-Ra"y, A˙kàm al-Waqf, 166–67, 276.
96
He said: No, because this is a bequest (waßiyya) and not a waqf. And
since it is a bequest, a bequest is not permitted for those who
have not been created. It is only for those who have come into
existence on the day the testator (al-mußì) dies, to the exclusion
of those who will [subsequently] come into existence. But if it
had been waqf land [with] its final disposition for the poor, and
he had said, “ßadaqa mawqùfa,” then it would have been permit-
ted for the children who exist and for the descendants of those
who have not yet been created, because this may not revert as
an inheritance and it may not be owned, in perpetuity. [By con-
trast], the bequest (al-waßiyya) is returned to the heirs (al-waratha)
after the dying out of those for whom the yields were left as a
bequest.162
162
Hilàl al-Ra"y, A˙kàm al-Waqf, 138.
163
Hilàl and al-Khaßßàf also consider the case of a founder who had bequeathed
(awßà) a waqf following his or her death. The founder’s use of the term “to bequeath”
automatically turns the transaction into a post mortem transfer of property so the
restrictions imposed on bequests are applied to the waqf. Hilàl al-Ra"y, A˙kàm al-
Waqf, 131; al-Khaßßàf, A˙kàm al-Awqàf, 248.
164
In his article on death-sickness, Hiroyuki Yanagihashi has traced the evolu-
tion of this doctrine over the course of the second Islamic century. He argues that
the “classical” doctrine did not reach its final form until the beginning of the third
century. Yanagihashi, “Doctrinal Development of Mara∂ al-Mawt in the Formative
Period of Islamic Law,” ILS 5 (1998), 326–58.
165
The origins of the one-third restriction (al-waßiyya fi"l-thulth) has spawned a
great deal of discussion amongst scholars of Islamic law. See Schacht, Origins, 201–02;
N. J. Coulson, A History of Islamic Law (Edinburgh: Edinburgh University Press,
WAQF 97
they are not permitted for heirs.166 The rationale for this doctrine is
two-fold. First, the one-third restriction safeguards the interests of
heirs and creditors during the phase in which the dying person may
be cognizant that his or her life is ending.167 Second, both restric-
tions work together to fulfill the “spirit” of the Islamic inheritance
system: the majority of the estate is divided according to the Qur"ànic
'ilm al-farà"i∂, and the sanctity and balance of these shares are pre-
served by the prohibition against bequests to heirs.
Defining the waqf in relation to the doctrine of death-sickness was
a concern of both Hilàl and al-Khaßßàf. Upon initial consideration,
it would appear that there were only two possible legal outcomes
for a waqf established during a person’s death-sickness: declare the
waqf null and void and divide the property according to the 'ilm al-
farà"i∂, or transform it into a testamentary bequest (waßiyya).168 Instead,
both treatises delineate what might be described as a hybrid waqf-
bequest. This hybrid abides by the constraints imposed on bequests,
and adheres to the 'ilm al-farà"i∂, but also retains the attributes asso-
ciated with a pious endowment. Somewhat confusingly, Hilàl and
al-Khaßßàf refer to this hybrid waqf-bequest as a “waßiyya.”169 This
hybrid, however, exhibits significant differences from a typical testa-
mentary bequest. In calling this hybrid a “waßiyya,” Hilàl and al-
Khaßßàf may have been acknowledging the fact that this type of waqf
170
Hilàl al-Ra"y, A˙kàm al-Waqf, 133.
WAQF 99
171
Al-Khaßßàf, A˙kàm al-Awqàf, 245.
172
Hilàl al-Ra"y, A˙kàm al-Waqf, 133. Similar passages can be found in al-Khaßßàf,
A˙kàm al-Awqàf, 245–48.
100
173
Hilàl al-Ra"y, A˙kàm al-Waqf, 134–35.
WAQF 101
174
Hilàl al-Ra"y, A˙kàm al-Waqf, 135.
175
Al-Khaßßàf, A˙kàm al-Awqàf, 248–49, 256.
176
Hilàl al-Ra"y, A˙kàm al-Waqf, 134.
177
Al-Khaßßàf, A˙kàm al-Awqàf, 246.
102
Background Principles
Hilàl and al-Khaßßàf could not have created the post mortem testa-
mentary waqf if the relationships between bequest law, the 'ilm al-
farà"i∂, and the doctrine of death-sickness had not achieved their
“classical” form. The work of Powers and Yanagihashi has focused
on the development of these different aspects of the Islamic inheri-
tance system178 during the formative period of Islamic history. In
Studies in Qur "àn and Óadìth, Powers attempted to trace the evolution
of bequest and inheritance law over the course of the first two Islamic
centuries. Powers argued that originally there were no restrictions
on bequests and that the laws surrounding intestate succession179 only
took effect in the absence of a last will and testament.180 By the mid-
dle of the first century, however, this relationship between testacy
and intestacy had become inverted with the Qur"ànic forced-share
intestacy system now providing the compulsory default rules for the
Islamic inheritance system.181 Thus, instead of constituting the norm,
bequests were now treated as exceptions to the sacrosanct “shares
of God.” This is the hierarchical relationship delineated in the waqf
treatises: bequests are limited to one-third of the decedent’s estate,
bequests to heirs are proscribed, and the 'ilm al-farà"i∂ is mandatory
in all post mortem transfers of property.182
178
The “Islamic inheritance system” encompasses more than the 'ilm al-farà"i∂.
As Powers has explained, “the term ‘inheritance system’ refers to the combination
of laws, customs, land tenure rights and settlement restrictions that regulate the
division of land at a succession.” Powers, “The Islamic Inheritance System,” 19–20.
For the purposes of this discussion, waqfs, bequests, and testamentary waqfs would
all be considered components of the Islamic inheritance system.
179
The early law of intestacy was not the fully developed 'ilm al-farà"i∂. For a
discussion of the differences between the “proto-Islamic law of intestacy” and the
'ilm al-farà"i∂, see Powers, Studies, 88–102.
180
Powers, Studies, 107, 210–12.
181
Powers posits two unrelated explanations for this switch to a compulsory intes-
tacy default rule: (1) that the testamentary powers of Qur"àn 4.12b were read out
of the Qur"àn in order to resolve political struggles over caliphal succession, and/or
(2) that there was a high mortality rate amongst the early Muslim community from
battles and plagues, making a forced-share system more attractive as a default rule.
Powers, Studies, part II. It seems equally plausible that the early Muslim commu-
nity switched to a forced-share intestacy system to lessen the traditional problems
associated with testate succession: competing wills, oral wills, holographic wills, and
capacity contests.
182
Powers, Studies, 212–16.
WAQF 103
183
Yanagihashi, “Doctrinal Development of Mara∂ al-Mawt,” 326.
184
Yanagihashi, “Doctrinal Development of Mara∂ al-Mawt,” 353–54, 358.
104
185
Powers, Studies, 213.
186
Hilàl al-Ra"y, A˙kàm al-Waqf, 275.
187
Al-Khaßßàf, A˙kàm al-Awqàf, 145.
188
Qur"àn 4.11.
WAQF 105
the fact that the waqf (presumably) reflected the actual practices of
the Muslim community would have bolstered the conviction that the
institution was in harmony with the sharì'a. The problem, of course,
was that legal legitimacy and legal authority were becoming an
increasingly hermeneutical phenomena over the course of the third
and fourth centuries. Not only was the discursive legal reasoning of
the waqf treatises inherently non-exegetical, but in some cases this
reasoning conflicted with the reports of pious endowments among
the early Muslim community. Thus, in spite of the importance of
the waqf treatises to the development of the institution’s substantive
law, one cannot speak of the waqf ’s birth as a legitimate institution
within Islamic law without examining its parallel, exegetical super-
structure.
CHAPTER FOUR
HERMENEUTICAL LEGITIMATION
1
Al-Shàfi'ì, Kitàb al-Umm, 4: 53.
2
Sa˙nùn, Al-Mudawwana, 15: 115.
3
Mu˙ammad b. 'Umar al-Wàqidì, Kitàb al-Maghàzì, ed. Marsden Jones (London:
Oxford University Press, 1966), 3: 991.
4
Al-ˇabarì, Ta"rìkh, 4: 31–32.
108
5
Note the use of the verb “waqqafa.” This appears to be one of the earliest uses
of this term in connection with the creation of pious endowments.
6
Ya˙yà b. Àdam, Kitàb al-Kharàj (Cairo: al-Ma†ba'a al-Salafiyya, 1964), 26, no.
47. The complicated status of the Sawàd lands and its peasants has been discussed
in an article by Paul G. Forand, “The Status of the Land and Inhabitants of the
Sawàd During the First Two Centuries of Islàm,” JESHO 14/1 (1971), 25–37.
7
Hilàl al-Ra"y, A˙kàm al-Waqf, 6–10, 72–73.
8
Hilàl al-Ra"y, A˙kàm al-Waqf, 6, 9–10, 72–73.
9
This last phrase might also be read as “and there is no need in this matter
for a ˙adìth.”
10
Al-Khaßßàf, A˙kàm al-Awqàf, 3–4.
11
Al-Sarakhsì, Al-Mabsù†, 12: 28. Schacht considered this anecdote to be apoc-
109
12
The amsakta maxim appears to be a variant of the taßaddaqa maxim, with the
verb “to withdraw” (amsaka) taking the place of “to sequester” (˙abbasa). As a result
of this substitution, the new maxim reads, “If you want, give alms by means of it,
and if you want, withdraw its principal” (in shi"ta taßaddaqta bi-hà wa-in shi"ta amsakta
aßlahà). Al-Bayhaqì, Kitàb al-Sunan al-Kubrà, 6: 159; al-Dàraqu†nì, Sunan, 4: 186, no.
7, 190, no. 9 (omitting the second “in shi"ta”).
13
There are some traditions which reverse the order of the maxim, so that it
reads “in shi"ta taßaddaqta bi-hà wa-˙abbasta aßlahà.” Al-Dàraqu†nì, Sunan, 4: 187, no.
5; al-Bayhaqì, Sunan, 6: 158–59, 161.
111
dard form of the sabbala maxim has the Prophet commanding 'Umar
to “Sequester its principal and dedicate its fruits/yields to charita-
ble purposes” (i˙bas aßlahà wa-sabbil thamaratahà). Although variants
sometimes blur these distinctions, every maxim examined in this
chapter orients itself around one of these two keywords. In terms of
their content, both maxims refer to the sequestration of the prop-
erty’s principal. As for distribution of the yields, only the sabbala
maxim explicitly mentions their distribution from the property’s
usufruct. In the taßaddaqa maxim, the distribution of the property’s
yields is only implied in the suggestion to give alms. Isnàd analysis
of the ˙adìths containing these two maxims indicates that their nar-
rative structures—the background information that situates the Prophetic
utterance—did not come into existence until the second century A.H.,
a time contemporaneous with debates over the legality of pious
endowments.
Opposition to the waqf also took the form of maxims. For exam-
ple, there is Shuray˙’s statement that pious endowments conflicted
with the Qur"àn’s forced shared system (“là ˙ubs 'an farà"i∂ Allàh” ),
a maxim that ultimately acquired Prophetic status in the third cen-
tury,14 and bore the controversial isnàd chain of 'Ikrima (d. 104–07/
722–25)15—Ibn 'Abbàs—the Prophet.16 There is a similar anti-waqf
˙adìth—also on the authority of 'Ikrima and Ibn 'Abbàs—in which
14
The dating of the Prophetic version of the “là ˙ubs 'an farà"i∂ Allàh” maxim is
based upon its absence from the Kitàb al-Umm of al-Shàfi'ì and the A˙kàm al-Waqf
of Hilàl al-Ra"y. Arguments from silence are not normally persuasive, but this case
is exceptional. Al-Shàfi'ì bases part of his objection to the là ˙ubs 'an farà"i∂ Allàh
maxim on the fact that it is Shuray˙’s opinion (see infra). It is unlikely that al-
Shàfi'ì would have taken this position if a Prophetic version of the maxim had
existed. Moreover, the ˙adìth in the A˙kàm al-Waqf provides a historical context for
the maxim that is non-Prophetic. In the ˙adìth, Shuray˙ assumes his familiar role
as qà∂ì (he was reported to have been a qà∂ì in Kùfa for sixty years and a qà∂ì
in Baßra for one year) and relies upon the maxim as a justification for rejecting a
fatwà. Nowhere in the ˙adìth does Shuray˙ allude to the Prophetic origins of the
là ˙ubs 'an farà"i∂ Allàh maxim. Whether the maxim actually was issued by Shuray˙
is another matter altogether, but again, second-century A.H. legal discourse does
not appear to have attributed the maxim to the Prophet. For biographical infor-
mation on Shuray˙, see Ibn Óajar al-'Asqalànì, Tahdhìb al-Tahdhìb, 4: 326.
15
Although 'Ikrima was the mawlà of Ibn 'Abbàs, his tarjama alleges that he attrib-
uted his own opinions to Ibn 'Abbàs and spread lies about his master. Ibn Óajar
al-'Asqalànì, Tahdhìb al-Tahdhìb, 7: 267, 269.
16
Al-Bayhaqì, Kitàb al-Sunan al-Kubrà, 6: 162; al-ˇa˙àwì, Shar˙ al-Ma'ànì al-Àthàr,
4: 99.
112
the Prophet declared that there would be “no ˙ubs after sùrat al-
nisà",”17 the chapter in the Qur"àn in which the inheritance verses18
were revealed. Another set of anti-waqf traditions indicated that the
legal right to make a property inalienable—that is, to turn it into a
˙ubs (i.e., mawqùfa)—had been proscribed. One of these ˙adìths, also
on the authority of Shuray˙, alleged that “Mu˙ammad brought the
release of ˙ubs” ( jà"a Mu˙ammad bi-i†làq al-˙ubs),19 while another stated
unambiguously that “˙ubs is forbidden” (nahà 'an al-˙ubs).20
Proponents of the waqf responded to these anti-waqf maxims and
˙adìths with a variety of different argumentative strategies, including
(i) questioning the authority of the ˙adìths; (ii) challenging the legal
meaning of the maxim; (iii) providing a different historical context
for the maxim; and/or (iv) promoting counter-maxims and counter-
˙adìths.21 The fourth argumentative strategy is the one most relevant
to this chapter. In his waqf treatise, Hilàl responded to Shuray˙’s
“là ˙ubs 'an farà"i∂ Allàh” maxim by implicitly referring to the taßad-
17
Al-Bayhaqì, Kitàb al-Sunan al-Kubrà, 6: 162.
18
Qur"àn 4.8, 4.11–12, 4.176.
19
Al-Shàfi'ì, Kitàb al-Umm, 4: 52.
20
Al-ˇa˙àwì, Shar˙ al-Ma'ànì al-Àthàr, 4: 97.
21
Al-Shàfi'ì’s response to Shuray˙’s “là ˙ubs 'an farà"i∂ Allàh” maxim is illustra-
tive of the first two argumentative strategies. First, al-Shàfi'ì claims that the maxim
is little more than Shuray˙’s personal opinion. Second, al-Shàfi'ì asserts that the
maxim does not prohibit the establishment of a waqf, because inter vivos transfers of
property do not implicate the 'ilm al-farà"i∂—a position that would have also negated
the “no ˙ubs after sùrat al-nisà"” maxim.
The third argumentative strategy is illustrated in al-Shàfi'ì’s responses to the
Prophetic maxim concerning the “releasing of ˙ubs.” Al-Shàfi'ì first argues that this
Prophetic utterance referred to a special group of pre-Islamic camels from whom
ownership had been removed (i.e. made a ˙ubs), and that the restriction, or seques-
tration, of these animals ended with the revelation of Qur"àn 5:103:
May His praise be exalted. Oh people, God permitted to you the grazing live-
stock, so eat them if you have slaughtered them according to the law. And
you are no longer prohibited from ba˙ìra, nor sà"iba, nor waßìla, nor ˙àmin,
nor what you dedicate from them to your gods.
Al-Shàfi'ì next draws a distinction between the ˙ubs of the Jàhiliyya and the ˙ubs of
Islam, observing that only in Islamic times have houses and land been made ˙ubs:
“We know of no Jàhilì person who designated a house as a ˙ubs for his children,
for the Holy War, or for the destitute. Their ˙ubs were comprised of the things I
have described, namely, the ba˙ìra, the waßìla, the ˙àmin, and the sà"iba.” Al-Shàfi'ì,
Kitàb al-Umm, 4: 52–53, 58.
In his Shar˙ al-Ma'ànì al-Àthàr, al-ˇa˙àwì (d. 321/933) also relies on this third
argumentative strategy to negate the impact of the “˙ubs are forbidden” maxim by
noting parallels between this maxim and the practices of the Jàhilì Arabs. Al-ˇa˙àwì,
Shar˙ al-Ma'ànì al-Àthàr, 4: 98.
113
22
Hilàl al-Ra"y, A˙kàm al-Waqf, 6.
23
Al-Shàfi'ì, Kitàb al-Umm, 4: 52–53, 58.
24
Schacht, Origins, 189.
25
Schacht argued that legal maxims often had two sources in Islamic jurispru-
dence: second-century A.H. Muslim jurists who generated rhyming and alliterative
maxims/slogans as teaching tools, and educated non-Arab converts who introduced
foreign (particularly Roman) concepts and maxims into nascent Islamic legal dis-
course. Joseph Schacht, “Pre-Islamic Background and Early Development of Juris-
prudence,” in Law in the Middle East: Origin and Development of Islamic Law, eds. Majid
Khadduri and Herbert J. Liebesny (Washington D.C.: The Middle East Institute,
1955), 36, 50. Crone has challenged Schacht’s understanding of foreign/Roman
influences on Islamic law, arguing that Roman influences were indirect rather than
direct, because Roman law, “as an organized body of law taught, studied and con-
sciously preserved,” had receded from the Near East by the time of the Arab
Conquests. Crone, Roman, Provincial and Islamic Law, 7–12, 91–94. As I have argued
114
previously, at some point the distinction between “foreign” and “indigenous” legal
cultures becomes illusory, but it may still be possible, in certain circumstances to
isolate the non-Arab origins of particular maxims (even if the Muslims who used
them were unaware of their “foreign” origins).
26
The tendency of the “ancient schools” to back project their opinions to Successors
and Companions instead of the Prophet is borne out by evidence from second-
century A.H. legal texts. For example, the Muwa††a" of Màlik b. Anas (d. 179/795)
in the recension of Ya˙yà b. Ya˙yà al-Maßmùdì (d. 234/849) contains 822 tradi-
tions from the Prophet as against 613 from Companions and 285 from Successors,
while the earlier recension of Mu˙ammad b. al-Óasan al-Shaybànì (d. 189/805)
contains 429 traditions from Mu˙ammad in comparison to 628 from Companions,
112 from Successors, and 10 from later authorities. The Kitàb al-Àthàr of Abù Yùsuf
(d. 182/798) contains 189 traditions from the Prophet, 372 from Companions and
549 from Successors. Schacht, “A Revaluation of Islamic Traditions,” Journal of the
Royal Asiatic Society (1949), 146. In addition to this numerical evidence, the Islamic
tradition itself informs us that ascribing traditions back to the Prophet was not
the norm in the second Islamic century. In the Kitàb Ikhtilàf al-Óadìth, al-Shàfi'ì
(d. 204/820)—the man responsible for elevating the ˙adìths ascribed to the Prophet
above all others—inveighed against the “ancient schools of law” for neglecting tra-
ditions from the Prophet in favor of those from the Successors and Companions.
Schacht, Origins, 21.
27
The density of Schacht’s theories and analyses make them difficult to sum-
marize. The details of his argument can be found in the first and second parts of
Origins, 1–179, and in a preliminary paper he presented in Paris to the Twenty-
First International Congress of Orientalists in July, 1948, entitled “A Revaluation
of Islamic Traditions,” 143–54.
28
For an example of how a maxim can move from juristic opinion to Prophetic
˙adìth, see Powers’ study of the “No bequest to an heir” maxim (là waßiyya li-wàrith).
According to Powers, the maxim appears to have entered into circulation as an
utterance of Màlik b. Anas at the beginning of the second Islamic century. By the
third century, however, the maxim had become situated in the Prophet’s Farewell
Pilgrimage and acquired Prophetic authority. Powers, Studies, 158–72.
115
29
A˙mad b. Óanbal, Al-Musnad (Egypt: Dàr al-Ma'àrif, 1951–90), 6: 277, no.
4608.
116
30
Ibn Óanbal, Al-Musnad, 6: 277, no. 4608. Some ˙adìths contain a variant of
the last phrase “so long as he does not appropriate any of the property” ( ghayr
mutamawwilin fì-hi ). This variant reads “so long as he does not enrich himself by
means of it” (ghayr muta"aththilin màlan).
31
Hilàl al-Ra"y, A˙kàm al-Waqf, 7–10, 72–73; Mu˙ammad b. Ismà'ìl al-Bukhàrì,
“Kitàb al-Wakàla,” in Ía˙ì˙ al-Bukhàrì (Cairo: al-Jumhùriyya al-'Arabiyya al-Mutta˙ida,
1386–93/1966–73), 4: 148. In the A˙kàm al-Waqf, references to the specification of
charitable ends can be found in the introduction, while the rules for the adminis-
trators of 'Umar’s waqf are discussed at a later point in the text. In the Ía˙ì˙ of
al-Bukhàrì, there is a ˙adìth which contains only the condition concerning the guide-
lines for administrators.
117
32
EI 2, s.v. “Khaybar,” L. Veccia Vaglieri, 4: 1137–38; 'Abd al-Malik Ibn Hishàm,
Sìrat al-Nabì, ed. Mu˙ammad Khalìl Harràs (Cairo: Maktabat al-Jumhùriyya, 1971),
3: 464; al-Wàqidì, Kitàb al-Maghàzì, 1: 375, 2: 690; A˙mad b. Ya˙yà al-Balàdhurì,
Futù˙ al-Buldàn (Beirut: Dàr al-Nashr, 1957), 34, 39.
33
Some historians have chosen to characterize these ˙isns as “farm-strongholds”
rather than forts, possibly because the term “fort” tends to conjure up images of
small, medieval European castles. EI 2, s.v. “Khaybar,” L. Veccia Vaglieri, 4: 1139.
34
EI 2, s.v. “Khaybar,” L. Veccia Vaglieri, 4: 1140.
35
Ibn Hishàm, Sìrat al-Nabì, 3: 467–72; al-Wàqidì, Kitàb al-Maghàzì, 2: 718. Ibn
Hishàm’s Sìra relates that the 1,800 shares of Khaybar were divided between 1,400
men and 200 horses. Each horse received two shares and every man received one.
36
Al-Balàdhurì, Futù˙ al-Buldàn, 37–38; Ya˙yà b. Àdam, Kitàb al-Kharàj, 21, no.
18, 35–37, nos. 89–97; Yàqùt b. 'Abd Allàh al-Óamawì (= Yàqùt), Mu'jam al-Buldàn
(Beirut: Dàr Íàdir, 1374–76/1955–57), 2: 410. Yàqùt (d. 575/1179) bridges the
gap between these two accounts when he explains that the Prophet divided the
properties of Khaybar into 36 shares which were then further subdivided into 100
units. The Prophet took half for his agents (nawà"ib) and divided the remaining 1800
shares among the Muslims. The ˙adìth which forms the basis for Yàqùt’s conclu-
sion is found in the earlier administrative work of Ya˙yà b. Àdam (d. 203/818).
See Ya˙yà b. Àdam, Kitàb al-Kharàj, 35–36, no. 91.
37
Al-Balàdhurì, Futù˙ al-Buldàn, 40; Ya˙yà b. Àdam, Kitàb al-Kharàj, 38, no. 98;
Abù Yùsuf, Kitàb al-Kharàj, 49–51; al-ˇabarì, Ta"rìkh, 3: 19–21; EI 2, s.v. “Khaybar,”
L. Veccia Vaglieri, 4: 1140–41.
118
38
Al-Wàqidì, Kitàb al-Maghàzì. For criticisms of al-Wàqidì as a reliable trans-
mitter of Islamic history, see Rizwi S. Faizer, “The Issue of Authenticity Regarding
the Traditions of al-Wàqidì as Established in his Kitàb al-Maghàzì,” JNES 58 (1999),
97 (surveying the literature).
39
Ibn Hishàm, Sìrat al-Nabì. Ibn Hishàm’s biography of the Prophet is a recen-
sion of the no longer extant Sìra of Ibn Is˙àq (d. 150/767).
40
Al-Balàdhurì, Futù˙ al-Buldàn.
41
Al-ˇabarì, Ta"rìkh al-Rusul wa"l-Mulùk.
42
Ibn al-Athìr, Al-Kàmil fì"l-Ta"rìkh.
43
Ibn Kathìr, Al-Bidàya wa"l-Nihàya.
44
Abù Yùsuf, Kitàb al-Kharàj, 49–51; Ya˙yà b. Àdam, Kitàb al-Kharàj, 39–42, nos.
100, 102, 104, 106–07.
45
The relevance of this Prophetic conversation to the situation in the Sawàd has
not been lost on modern historians. Forand alleges that 'Umar based his Sawàd
decree upon his earlier experiences at Khaybar, and cites 'Umar’s conversation with
the Prophet as the basis for the decree. Forand, “The Status of the Land and
Inhabitants of the Sawàd During the First Two Centuries of Islàm,” 30.
119
and the events at Khaybar.46 It seems odd that Ibn 'Umar would
have recorded much about his father and yet forget to relate this
conversation.
'Umar’s interactions with the oasis of Khaybar were not limited
to the conquest in the year 7/629. The Islamic tradition reports that
during the early part of his caliphate (r. 13–23/634–44),47 'Umar
expelled the Jews from Khaybar, sent them to Syria, and divided
their properties amongst the Muslims. The Islamic tradition remains
divided over the reasons for 'Umar’s expulsion order. One set of
traditions claims that 'Umar expelled the Jews after learning that
the Prophet had said, during the his final illness, “Two religions can-
not coexist in the Arabian peninsula” (là yajtami'u bi-jazìrat al-
'arab dìnàn).48 These traditions, however, fail to explain why 'Umar
only learned of this Prophetic statement several years after the
Prophet’s death. Another set of traditions claims that the denizens
of Khaybar began to mistreat and deceive the Muslims living there.
In particular, certain traditions cite the abuse suffered by 'Umar’s
son at the hands of the people of Khaybar:
Then 'Abd Allàh b. 'Umar visited them for an unspecified purpose
and they attacked him in the night.49 [They] broke Ibn 'Umar’s hands
by throwing him from the roof of a house. Subsequently, 'Umar divided
the land among those of the people of Óudaybiyya who had taken
part in the battle of Khaybar.50
46
For events at Khaybar, Ibn 'Umar is the final link in isnàd chains for al-
Balàdhurì, al-Wàqidì, Ibn Hishàm, Abù Yùsuf, and Ya˙yà b. Àdam. See al-Balàdhurì,
Futù˙ al-Buldàn, 34, 40; al-Wàqidì, Kitàb al-Maghàzì, 2: 179; Ibn Hishàm, Sìrat al-
Nabì, 3: 479–80; Abù Yùsuf, Kitàb al-Kharàj, 50–51; Ya˙yà b. Àdam, Kitàb al-Kharàj,
37, no. 97.
47
No specific date is given for the expulsion, but al-Balàdhurì claims that it
was during the “early part of the caliphate of 'Umar.” Al-Balàdhurì, Futù˙ al-
Buldàn, 40.
48
Al-ˇabarì, Ta"rìkh, 3: 21; Ibn al-Athìr, Al-Kàmil fì"l-Ta"rìkh (Beirut: Dàr Íàdir,
1965–67), 2: 224; al-Balàdhurì, Futù˙ al-Buldàn, 39; Abù al-Óasan 'Alì b. al-Óusayn
al-Mas'ùdì, Al-Tanbìh wa"l-Ishràf (Baghdàd: Maktabat al-Muthannà, 1357/1938),
222.
49
Al-Balàdhurì, Futù˙ al-Buldàn, 40.
50
Al-Balàdhurì, Futù˙ al-Buldàn, 36. The Kitàb al-Kharàj of Ya˙yà b. Àdam
(d. 203/818) contains a similar account of Ibn 'Umar’s mistreatment—“he was
attacked during the course of the night and was wounded”—but this ˙adìth does
not state that Ibn 'Umar was thrown from a roof. Ya˙yà b. Àdam, Kitàb al-Kharàj,
38, no. 98.
120
51
Al-Balàdhurì, Futù˙ al-Buldàn, 34.
52
Al-Balàdhurì, Futù˙ al-Buldàn, 37.
121
53
The term “common link” was coined by Schacht in Origins, 171–75. Juynboll’s
work constitutes a substantial elaboration upon Schacht’s initial theories.
54
Crone, Roman, Provincial and Islamic Law, 27–31.
55
Calder, Studies, 236–41.
56
Cook, Early Muslim Dogma, 107–16; idem, “Eschatology and the Dating of
Traditions,” Princeton Papers in Near Eastern Studies 1 (1992), 23–48.
57
Cook, “Eschatology and the Dating of Traditions,” 46, n. 74.
58
The one exception is a ˙adìth found in the Sunan of al-Dàraqu†nì where 'Ubayd
Allàh b. 'Umar takes the place of Ibn 'Awn. At first glance, the isnàd of this tra-
dition seems to represent a classic case of what Juynboll has described as “diving
under the common link’s level.” However, this isnàd is probably just a scribal mis-
take. First, 'Ubayd Allàh b. 'Umar does figure prominently in the isnàd for another
collection of waqf-related ˙adìths—those containing the sabbala maxim. Second, this
tradition is located in an unusual place in al-Dàraqu†nì’s Sunan. All of the other
seven taßaddaqa ˙adìths are located in a section entitled “How to deed a ˙ubs.” By
contrast, this “diver” appears in a chapter on “well-known ˙ubs” consisting almost
exclusively of ˙adìths containing the sabbala maxim, which concomitantly have 'Ubayd
Allàh b. 'Umar in the isnàd chain. Given the location of this “diver” in the Sunan,
I suspect that either the wrong maxim or the wrong isnàd found its way into this
˙adìth. Al-Dàraqu†nì, Sunan, 4: 194, no. 8. For Juynboll’s analysis of “divers,” see
“Some Isnàd-Analytical Methods Illustrated on the Basis of Several Woman-Demeaning
Sayings from Óadìth Literature,” Al-Qantara 10/2 (1989), 366–74.
DIAGRAM ONE
AL- AL-
DÀRAQUˇNÌ BAYHAQÌ
'Alì b.
Mu˙ammad
b. 'Abd Allàh
AL-
BUKHÀRÌ
MUSLIM
IBN MÀJA
Ya˙yà b. IBN
Mu˙ammad ÓANBAL
AL-NASÀ"Ì
'Ubayd Allàh
b. 'Umar
Ibn 'Awn
Al-Bukhàri, Ía˙ì˙, 4: 347–38, no. 2546, 5: 28–29, no. 2487; Muslim, Ía˙ì˙, 3:
1255, no. 15; al-Dàraqu†nì, Sunan, 4: 187–88, no. 1, 189, no. 4, 190–91, nos.
Nàfi' 8, 10, 194, no. 7; al-Bayhaqì, Sunan, 6: 159; al-Khaßßàf, A˙kàm al-Awqàf, 5–6;
Ibn Màja, Sunan, 2: 801, no. 2396; Ibn Óanbal, Al-Musnad, 6: 277, no. 4608,
7: 141, no. 5179; al-Nasà"ì, Sunan, 6: 192; al-'AΩìmàbàdì, 'Awn al-Ma' bùd: Shar˙
Ibn 'Umar
Sunan Abì Dàwùd, 8: 80–82, no. 2861.
122
59
One of the ˙adìths in al-Nasà"ì’s collection lists this transmitter’s name as Ayyùb
b. 'Awn. This is probably a textual corruption or a mistake. There is no bio-
graphical entry for Ayyùb b. 'Awn in either Ibn Óajar al-'Asqalànì, Tahdhìb al-
Tahdhìb, Jamàl al-Dìn Abù al-Óajjàj Yùsuf b. al-Zakì 'Abd al-Ra˙màn al-Mizzì,
Tahdhìb al-Kamàl fì Asmà" al-Rijàl (Beirut: Mu"assasat al-Risàla, 1980–1992); Ibn Sa'd,
Kitàb al-ˇabaqàt al-Kabìr, ed. Eduard Sachau (Leiden: E. J. Brill, 1904), or Mu˙ammad
b. 'Amr b. Mùsà al-'Uqaylì, Kitàb al-Îu'afà" (Beirut: Dàr al-Kutub al-'Ilmiyya, 1984).
60
G. H. A. Juynboll, “Some Notes on Islam’s First Fuqahà" Distilled From Early
Óadìth Literature,” Arabica 39 (1992), 292.
61
In comparison with mutawàtir (widely disseminated) traditions, the transmission
of these à˙àd, or single-strand, ˙adìths appears questionable. In spite of this deficiency,
the Islamic tradition has maintained that single-strand ˙adìths can establish a rule
of law provided that they are conveyed by reliable transmitters and the matns are
not “contrary to reason.” Jalàl al-Dìn al-Suyùtì, Tadrìb al-Ràwì, a commentary on
the Taqrìb wa"l-Taysìr of al-Nawawì (Cairo: Ma†ba'at al-Khayriyya, 1307/1889),
99–100. See also Mohammad Hashim Kamali, Principles of Islamic Jurisprudence
(Cambridge: The Islamic Texts Society, 1991), 71–74, for a general overview of
Islamic attitudes towards à˙àd ˙adìths.
62
The Islamic tradition contains numerous reports of early Muslims assiduously
pursuing the preservation of every Prophetic utterance and action. Consider, for
example, Abù Hurayra and 'Abd Allàh b. 'Amr b. al-'Àß. The former reportedly
sacrificed all worldly pursuits to record the Prophet’s words and actions for three
years while the latter allegedly wrote down all that he heard from the Prophet. Ibn
Sa'd, Kitàb al-ˇabaqàt al-Kabìr, 4/2: 56, 2/2: 125.
123
63
Juynboll, “Some Isnàd-Analytical Methods,” 353.
64
Juynboll, “Some Isnàd-Analytical Methods,” 353.
65
Juynboll, “Some Isnàd-Analytical Methods,” 353.
66
Juynboll, “Some Isnàd-Analytical Methods,” 353.
67
G. H. A. Juynboll, “(Re)Appraisal of Some Technical Terms in Óadìth Science,”
ILS 8 (2001), 304–15; idem, “Nàfi', the Mawlà of Ibn 'Umar, and his position in
Muslim Óadìth Literature,” Der Islam 70 (1993), 214.
68
Ibn Óajar al-'Asqalànì, Tahdhìb al-Tahdhìb, 5: 328.
69
Ibn Óajar al-'Asqalànì, Tahdhìb al-Tahdhìb, 5: 330.
124
the second link in the isnàd, was the client (mawlà) of Ibn 'Umar,
and died sometime between 117–20/735–38.70 Ibn Óajar al-'Asqalànì’s
Tahdhìb describes Nàfi' as trustworthy (thiqa),71 and asserts that the
most sound ˙adìths of Màlik b. Anas (d. 179/795) were those trans-
mitted between Ibn 'Umar and his mawlà.72
If the historicity of the transmission between Ibn 'Awn, Nàfi', and
Ibn 'Umar is suspect, then the manner in which the isnàd strands
(†uruq) dramatically branch out after Ibn 'Awn suggests the opposite.
Based on this expansion of transmitters after the cl, Juynboll believes
that historians are justified in inferring that the historicity of trans-
missions within a given isnàd bundle becomes more conceivable at
the cl level.73 In other words, the cl constitutes both the first authen-
tic moment of ˙adìth transmission and the likely source for the ˙adìth
narrative: “[T]he saying which he [the cl] claims was uttered by
the [P]rophet is in reality his own, or (if somebody else’s) he was
the first to put it into so many words.”74
In addition to the “knots” created by the common link, Juynboll
has also discussed subsequent knotting in isnàd bundles. For exam-
ple, in the isnàd bundle for the taßaddaqa ˙adìth, only four of the six-
teen transmitters immediately after Ibn 'Awn—Bishr b. al-Mufa∂∂al,
Ya˙yà b. Sa'ìd al-Qa††àn, Yazìd b. Zuray', and Sufyàn al-Thawrì—
transmitted the tradition to two or more individuals.75 Juynboll has
called these secondary knots in the isnàd bundle (the cl being the
primary knot) “partial common links” and defined them as follows:
70
Ibn Óajar al-'Asqalànì, Tahdhìb al-Tahdhìb, 10: 412, 414.
71
Ibn Óajar al-'Asqalànì, Tahdhìb al-Tahdhìb, 10: 414. Juynboll has informed me
that “thiqa” can also mean ßàli˙—a less edifying adjective meaning, “I hope his tra-
ditions were harmless in the sense that they did not create too much confusion.”
The use of this term, therefore, must be evaluated on a case by case basis. In the
case of Nàfi' it is probably correct to assume that it means “trustworthy.” EI 2, s.v.
“Íàli˙,” G. H. A. Juynboll, 8: 982–84; idem, “(Re)Appraisal,” 304; idem, Muslim
Tradition (New York: Cambridge University Press, 1983), 64.
72
Ibn Óajar al-'Asqalànì, Tahdhìb al-Tahdhìb, 4: 410, 10: 413. The Islamic tra-
dition considered the isnàd “Màlik—Nàfi'—Ibn 'Umar” to be so free from error
that it was described as a “golden chain.” Juynboll, Muslim Tradition, 143.
73
Juynboll, “Some Isnàd-Analytical Methods,” 353–54.
74
Juynboll, “Some Isnàd-Analytical Methods,” 353.
75
Yazìd b. Hàrùn might have been another pcl if the traditions that reverse the
taßaddaqa maxim had been included in the isnàd bundle. See al-Dàraqu†nì, Sunan,
4: 187, no. 5; al-Bayhaqì, Sunan, 6: 158–59, 161 (giving the maxim as “in shi"ta
taßaddaqta bi-hà wa-˙abbasta aßlahà”). The inclusion of these traditions would not have
altered the conclusions reached here, however.
125
76
Juynboll, “Some Isnàd-Analytical Methods,” 352.
77
Juynboll, “Some Isnàd-Analytical Methods,” 360–61.
78
Juynboll observes that, according to this definition, all the ˙adìth collectors—
al-Bukhàrì, Muslim, al-Óumaydì, Ibn Óanbal, al-Tirmidhì, Ibn Màja and al-Nasà"ì—
could be considered ipcls. Juynboll, “Some Isnàd-Analytical Methods,” 361.
79
Juynboll, “Some Isnàd-Analytical Methods,” 352.
80
Juynboll, “Nàfi',” 211.
81
In some cases, entire isnàd bundles are comprised exclusively of single strand
transmissions.
126
another single pupil. In early Islam ßa˙ìfas are described as going from
hand to hand, even if there was no formal master/pupil relationship
between original compiler and later transmitters.82
Juynboll attributes these single strand transmissions to the various
collectors in whose collections they reside, or to the alleged shaykh
of that collector sitting just under him in the isnàd chain.83 Juynboll
believes that the collector or shaykh may have been dissatisfied with
the existing pcl strands and “established” a new link with the cl by
launching his own †uruq through a fulàn.84 In light of these histori-
cal problems, Juynboll contends that these single strands do not rep-
resent authentic lines of transmission, and as a result, cannot be said
to buttress the historicity of the cl’s transmission.85
Juynboll’s conclusions about these fulàn traditions can also be
applied to isnàds at the pcl level. For example, even though Sufyàn
al-Thawrì (d. 161/778) is a pcl, the subsequent transmitters in his
isnàd chain are fulàns. Likewise, the transmission from the pcl Ya˙yà
b. Ya˙yà al-Tamìmì (d. 224–26/839–41) is also considered deficient
since the preceding transmitter, Salìm b. Akh∂ar, is a fulàn.86 As a
consequence of these fulàn transmissions, the ˙adìths of Sufyàn al-
Thawrì and Ya˙yà b. Ya˙yà al-Tamìmì fall short of Juynboll’s reli-
ability standards: “[O]nly strands comprising pcls, whose pupils (whom
we will also call pcls) themselves have several pupils, can be relied
upon historically.”87
Application of Juynboll’s conclusions to the taßaddaqa ˙adìths reveals
that only a small number of transmissions can be said to reflect gen-
uine transmission [see Diagram Two]. Although the number of
remaining strands is quite small, the Muslim historical tradition does
support their claim to authentic transmission. For example, the bio-
82
Juynboll, “Some Isnàd-Analytical Methods,” 212.
83
Juynboll, “Some Isnàd-Analytical Methods,” 212.
84
Juynboll, “Some Isnàd-Analytical Methods,” 213.
85
Juynboll, “Some Isnàd-Analytical Methods,” 211.
86
This conclusion regarding Ya˙yà b. Ya˙yà al-Tamìmì may need to be revised at
a later time should other traditions on the authority of Salìm b. Akh∂ar (d. 180/796)
emerge. The biographical dictionaries provide strong support for this chain of trans-
mission. The Baßran Salìm b. Akh∂ar was a major transmitter of ˙adìths on the
authority of Ibn 'Awn, and the biographical dictionaries report that Ya˙yà b. Ya˙yà
al-Tamìmì transmitted ˙adìths on the authority of Salìm b. Akh∂ar. Ibn Óajar al-
'Asqalànì, Tahdhìb al-Tahdhìb, 11: 297–98, al-Mizzì, Tahdhìb, 11: 338–39, no. 2483,
32: 32, no. 6943.
87
Juynboll, “Some Isnàd-Analytical Methods,” 211.
127
DIAGRAM TWO
The taßaddaqa ˙adìths, with a focus on cl, pcl, and ipcl lines
of transmission
Musaddad b. Óumayd b.
Musarhad Mas'ada
Ibn 'Awn
Nàfi'
Ibn 'Umar
128
88
Ibn Óajar al-'Asqalànì, Tahdhìb al-Tahdhìb, 3: 49, 10: 107.
89
Ibn Óajar al-'Asqalànì, Tahdhìb al-Tahdhìb, 10: 107, 11: 216.
90
Ibn Óajar al-'Asqalànì, Tahdhìb al-Tahdhìb, 5: 347–48.
91
Ibn Óajar al-'Asqalànì, Tahdhìb al-Tahdhìb, 5: 348.
92
Ibn Óajar al-'Asqalànì, Tahdhìb al-Tahdhìb, 11: 219–20.
93
Ibn Óajar al-'Asqalànì, Tahdhìb al-Tahdhìb, 10: 108.
94
Ibn Óajar al-'Asqalànì, Tahdhìb al-Tahdhìb, 10: 108.
95
Ibn Óajar al-'Asqalànì, Tahdhìb al-Tahdhìb, 11: 326.
96
Ibn Óajar al-'Asqalànì, Tahdhìb al-Tahdhìb, 3: 49. The distinction between those
who transmitted ˙adìths (al-mu˙addithùn) and those who transmitted historical reports
(al-akhbàriyyùn) has been examined by Ella Landau-Tasseron in her article on Sayf
b. 'Umar. In the biographical dictionaries, the mu˙addithùn generally malign the rep-
utations of those connected with the writing of historical works, such as Sayf b.
'Umar, al-Wàqidì, and Ibn Is˙àq. According to Landau-Tasseron most of these dis-
paragements are unwarranted, because they result from the mu˙addithùn judging the
akhbàriyyùn according to the standards of ˙adìth criticism, rather than historical writ-
ing. Landau-Tasseron further observes that non-mu˙addithùn critics considered these
akhbàriyyùn trustworthy with respect to history. As for Óumayd b. Mas'ada, he
appears to constitute the case of an individual who successfully navigated this divi-
sion between the mu˙addithùn and the akhbàriyyùn. Landau-Tasseron, “Sayf b. 'Umar
in Medieval and Modern Scholarship,” Der Islam 67 (1990), 1–26, esp. 6–7.
129
97
Ibn Óajar al-'Asqalànì, Tahdhìb al-Tahdhìb, 1: 459.
98
Even variant traditions of the taßaddaqa ˙adìth have Ibn 'Awn as the common
link. In examining the sources, I have uncovered four variations on the taßaddaqa
maxim:
1. Reversal of the maxim: “If you want, give (the yields) away as alms, and
sequester its principal” (in shi"ta, taßaddaqta bi-hà wa-˙abbasta aßlahà). Al-Dàraqu†nì,
Sunan, 4: 189, no. 5; al-Bayhaqì, Kitàb al-Sunan al-Kubrà, 6: 158–59.
2. Interpolation of the phrase “entrust it to God” into the maxim: “If you want,
entrust it to God, sequester its principal and give (the yields) away as alms”
(in shi"ta, ja'altahà li"llàhi, ˙abbasta aßlahà wa-taßaddaqta bi-hà). Al-Dàraqu†nì, Sunan,
4: 188, no. 2.
3. Omission of the statement suggesting that 'Umar give the yields away as alms
and interpolation of an explicit inalienability clause into the maxim: “If you
want, sequester its principal, it is not to be sold, or given as a gift, or inher-
ited” (in shi"ta, ˙abbasta aßlahà, là tubà'u wa-là tùhabu . . . wa-là tùrathu). Al-ˇa˙àwì,
Shar˙ al-Ma'ànì al-Àthàr, 4: 95.
4. Omission of the phrase sequestering the principal: “If you want, give (the
yields) away as alms” (in shi"ta, taßaddaqta bi-hà). Al-Bukhàrì, Ía˙ì˙ al-Bukhàrì,
5: 29, no. 2488.
99
Juynboll has written several times on the “age trick” amongst early transmit-
ters of ˙adìths. The “age trick” involved stretching the lives of key figures, such as
Màlik b. Anas (d. 179/795) in a manner that made it possible to claim that they
had received ˙adìth materials from important first-century A.H. authorities. For
example, due to his long life, Màlik is said to have been a pupil of Nàfi' (d.
117–20/735–38). The prevalence of so many long-lived ˙adìth transmitters has led
Juynboll to conclude that this phenomenon cannot be accepted as historically
accurate: “Now one person or a few persons who reached their mid-eighties before
dying may not strike a student of early Islamic society as particularly implausible,
but literally hordes of people living to these ripe old ages stretches the imagination
to the breaking point. And literally dozens of centenarians, nonagenarians and octo-
genarians, all firmly entrenched in ˙adìth transmission, who coincidentally received
their most important and voluminous material from alleged masters whose students
they became in their early youth, seems too much of a coincidence to accept without
130
claimed that Ibn 'Awn was present at the conversation between the
Prophet and 'Umar in the year 7/629. In consideration of Ibn 'Awn’s
age, the ˙adìth probably came into circulation sometime between the
years 125–51/742–68. Moreover, since the best lines of transmission
(cl-pcl-pcl) all pass through Baßran authorities, it is logical to con-
clude that the ˙adìth originated in Baßra.100
While Ibn 'Awn may be credited with generating the narrative
structure for the maxim, it is not entirely clear that he should be
credited with creating the maxim. Schacht’s work suggests that legal
maxims could have entered into Islamic legal discourse as indepen-
dent entities—either as borrowed phrases from foreign legal systems,
as teaching tools generated by early Muslim jurists, or, as in the
case of Shuray˙’s anti-waqf maxim, as opinions of early jurists.
Consequently, while isnàd analysis indicates that Ibn 'Awn is respon-
sible for situating the taßaddaqa maxim within its narrative frame-
work, the maxim may have circulated independently for a period of
time prior to the narrative’s creation.
a further look.” Juynboll, “Nàfi',” 219–23; idem, Muslim Tradition, 46–48; idem,
“The Role of Mu'ammarùn in the Early Development of the Isnàd,” Wiener Zeitschrift
für die Kunde des morgenlandes 81 (1991), passim.
100
Cook uses a similar approach for determining the provenance of the Prophetic
˙adìth, “Write nothing from me except the Qur"àn; if anyone writes anything from
me other than the Qur"àn, let him erase it.” Similar to the taßaddaqa ˙adìth, this
tradition has a “trunk” of four single transmitters and then begins to branch out-
wards. Although the trunk is Madìnan, Cook states that the ˙adìth emerged in Baßra
because all but one of the branches consist of Baßran transmitters. Cook, “The
Opponents of the Writing of Tradition,” 446–47. Cook does not agree, however,
with Juynboll’s conclusions regarding the common link as the source for the ˙adìth.
101
Al-Khaßßàf, A˙kàm al-Awqàf, 7.
131
102
Al-Shàfi'ì, Kitàb al-Umm, 4: 52–53, 58.
132
103
Mu˙ammad Yazìd b. Màja, Sunan Ibn Màja, ed. Mu˙ammad Fu"àd 'Abd al-
Bàqì (Cairo: 'Ìsà al-Bàbì al-Óalabì, 1972), 2: 801, no. 2397.
104
One tradition in al-Nasà"ì’s Sunan reports that the ˙adìth was transmitted on
the authority of Sufyàn “on the authority of ” ('an) Ibn 'Uyayna. Since other ˙adìths
assert that this transmitter was one person—Sufyàn b. 'Uyayna—this discrepancy
is probably a textual corruption. A˙mad b. Shu"ayb al-Nasà"ì, Sunan al-Nasà"ì (Egypt:
Mu߆afà al-Bàbì al-Óalabì, 1964–65), 6: 193.
105
Juynboll, “Nàfi',” 217. Juynboll also discusses the contradictory accounts sur-
rounding the biography of Nàfi' on pages 217–20.
106
Juynboll, “Nàfi',” 227.
107
Juynboll, “Some Notes on Islam’s First Fuqahà" Distilled from Early Óadìth
Literature,” Arabica 39 (1992), 309. In a 1993 article, Juynboll notes that he once
133
DIAGRAM THREE
AL-DÀRAQUˇNÌ
AL-BAYHAQÌ
'Ubayd Allàh b. 'Umar b. 'Abd Allàh b. 'Umar b. Óafß al-'Umarì Ibn 'Awn
Óafß al-'Umarì
Nàfi'
Ibn 'Umar
Al-Dàraqu†nì, Sunan, 4: 186, no. 6, 187, no. 13, 193, nos. 1–2, 4, 194, no. 8; al-Bayhaqì, Sunan, 6: 162;
al-Nasà"ì, Sunan, 6: 193; al-Shàfi'ì, Kitab al-Umm, 4: 52–53, 58; al-Óumaydì, Al-Musnad, 2: 289–90, no. 652;
Ibn Màja, Sunan, 2: 801, no. 2397; Ibn Óanbal, Al-Musnad, 9: 178, no. 6460.
134
113
Ibn Óajar al-'Asqalànì, Tahdhìb al-Tahdhìb, 7: 40.
114
Ibn Óajar al-'Asqalànì, Tahdhìb al-Tahdhìb, 7: 40.
115
Ibn Óajar al-'Asqalànì, Tahdhìb al-Tahdhìb, 7: 39.
116
Ibn Óajar al-'Asqalànì, Tahdhìb al-Tahdhìb, 5: 327.
117
Ibn Óajar al-'Asqalànì, Tahdhìb al-Tahdhìb, 5: 327. A mu∂†arib tradition is “a
Óadìth in which the contents are inconsistent with a number of other reports, none of
which can be preferred over the others.” Kamali, Principles of Islamic Jurisprudence, 81.
118
Ibn Óajar al-'Asqalànì, Tahdhìb al-Tahdhìb, 5: 327; al-'Uqaylì, Kitàb al-Îu'afà",
2: 280–81.
119
Ibn Óajar al-'Asqalànì, Tahdhìb al-Tahdhìb, 5: 327.
120
Ibn Óajar al-'Asqalànì, Tahdhìb al-Tahdhìb, 5: 327.
121
Juynboll, “Nàfi',” 232.
122
Juynboll, “Nàfi',” 232.
136
123
A spider bundle is created when a series of single-strand ( fulàn) traditions con-
verge on a potential cl. Because the resulting isnàd bundles resemble the so-called
harvest spider (American English: daddy longlegs), Juynboll has given them the
appellation “spiders.” Juynboll, “Some Isnàd-Analytical Methods,” 214, n. 4.
124
Juynboll, “Nàfi',” 212, 232–33; idem, “Some Isnàd-Analytical Methods,” 352.
125
This is the strand having the long isnàd: Mu˙ammad b. Nù˙ al-Jundìsàbùrì—
A˙mad b. al-'Alà" b. Hilàl—'Umar b. Yazìd—Muslim b. Khàlid—'Ubayd Allàh b.
'Umar (b. Óafß al-'Umarì)—Nàfi'—Ibn 'Umar. Al-Dàraqu†nì, Sunan, 4: 187, no. 13.
126
Juynboll, “Nàfi',” 233–39.
137
DIAGRAM FOUR
AL-DÀRAQUˇNÌ
ipcl
fulàn ipcl
fulàn
fulàn
AL-NASÀ"Ì IBN-MÀJA
AL-SHÀFI'Ì AL-
ÓUMAYDÌ
'Ubayd Allàh b. 'Umar b. Óafß al-'Umarì 'Abd Allàh b. 'Umar b. Óafß al-'Umarì
Nàfì'
Ibn 'Umar
138
127
Ibn Óajar al-'Asqalànì, Tahdhìb al-Tahdhìb, 4: 119.
128
Juynboll, “Some Isnàd-Analytical Methods,” 356.
129
Ibn Óajar al-'Asqalànì, Tahdhìb al-Tahdhìb, 4: 117.
130
No biographical entry for either Bishr b. Ma†ar, Abù Bakr Ya'qùb b. Ibràhìm
al-Bazzàz, or Mu˙ammad b. Mukhlid, could be found in the Tahdhìb of al-Mizzì,
the Tahdhìb of Ibn Óajar al-'Asqalànì, or the Kitàb al-Îu'afà" of al-'Uqaylì.
131
Ibn Óajar al-'Asqalànì, Tahdhìb al-Tahdhìb, 4: 118–19.
132
Ibn Óajar al-'Asqalànì, Tahdhìb al-Tahdhìb, 2: 318–19; 6: 302; al-Mizzì, Tahdhìb,
6: 310–13, no. 1270.
139
133
No biographical entry for either Ibràhìm b. Óammàd or al-Óasan b. 'Alì al-
Mu'ammarì could be found in the Tahdhìb of al-Mizzì, the Tahdhìb of Ibn Óajar
al-'Asqalànì, the Kitàb al-ˇabaqàt al-Kabìr of Ibn Sa'd, or the Kitàb al-Îu'afà" of al-
'Uqaylì.
134
Juynboll, “Some Isnàd-Analytical Methods,” 353–54.
135
Ibn Óajar al-'Asqalànì, Tahdhìb al-Tahdhìb, 4: 118–19, 5: 215, 9: 25, 29. Al-
Óumaydì’s biographical entry asserts that he studied with Sufyàn b. 'Uyayna
for seventeen years, and that he was the “most reliable transmitter” of Sufyàn b.
'Uyayna’s ˙adìths. Al-Shàfi'ì’s biographical entry reports that he transmitted a great
number of traditions on the authority of both Sufyàn b. 'Uyayna and Màlik b.
Anas.
136
Ibn Óajar al-'Asqalànì, Tahdhìb al-Tahdhìb, 9: 25.
137
Norman Calder, Studies, 68.
138
Juynboll, Muslim Tradition, 25.
140
139
Ibn Óajar al-'Asqalànì, Tahdhìb al-Tahdhìb, 5: 216.
140
In the A˙kàm al-Waqf of Hilàl the taßaddaqa maxim is present in an akhbàr
report, i.e., there is no isnàd for the tradition.
141
See, e.g., Peters, “Murder in Khaybar,” (arguing that two distinct doctrines of
qasàma originated in the Óijàz and 'Iràq respectively).
142
John Wansbrough, Qur"ànic Studies: Sources and Methods of Scriptural Interpretation
(Oxford: Oxford University Press, 1977), 50. Wansbrough contends that the repeti-
tiveness of the Qur"àn is partly the result of the status which these pre-canonical
verses (logia) had acquired in their local communities prior to the revelation’s
codification.
143
Schacht, Introduction to Islamic Law, 28–36; Wansbrough, Qur"ànic Studies, 33;
idem, The Sectarian Milieu (Oxford: Oxford University Press, 1978), 41. Traveling
˙adìth transmitters and the annual pilgrimage to Mecca would have provided
opportunities for transmitters in different centers to become aware of one another’s
traditions.
141
144
Consider for example, the Mußannafs of 'Abd al-Razzàq (d. 211/827), and Ibn
Abì Shayba (d. 235/849). The former is an early collection of Óijàzì traditions, while
the latter is primarily a compilation of 'Iràqì ˙adìths. The issue of regionalism in
the development of early Islamic law is a matter of current debate among scholars.
Although Hallaq has questioned whether regional collections of jurists should be
considered “schools,” he nonetheless seems to agree with Melchert that jurists col-
lected in regional centers: “Kufa, in particular, and Iraq, in general, were places
in which a group of jurists flourished and spent the entirety of their professional
lives.” Hallaq, “From Regional to Personal Schools of Law?” 16. Cf., Melchert,
“Traditionist-Jurisprudents,” 400. The work of Peters and Cook also suggests that
groups of jurists were organized along regional/geographic lines. See Peters, “Mur-
der in Khaybar,” (arguing that the distinctiveness of two qasàma doctrines was the
result of a lack of contact between jurists in the Óijàz and 'Iràq); Cook, “The
Opponents of the Writing of Tradition,” 446–47 (asserting that the Prophetic ˙adìth,
“Write nothing from me except the Qur"àn; if anyone writes anything from me
other than the Qur"àn, let him erase it” emerged in Baßra even though the trunk
of the isnàd is Madìnan). Hurvitz, however, has questioned whether developments
in Islamic law should be linked to geography. Hurvitz, “Schools of Law in Historical
Context,” 63.
145
The taßaddaqa tradition can be found in the two most important collections
of ˙adìths—the Ía˙ì˙s of al-Bukhàrì (d. 256/870) and Muslim (d. 261/875)—whereas
the sabbala tradition is absent in both. Since the sabbala tradition existed by the
third century A.H., this lacuna suggests either (i) that the sabbala tradition had not
become widely disseminated amongst ˙adìth collectors, or (ii) that both al-Bukhàrì
and Muslim considered the ˙adìth to be less than ßa˙ì˙.
142
146
Juynboll, “Nàfi',” passim.
147
Juynboll, “Nàfi',” 237.
148
Sa˙nùn, Al-Mudawwana, 15: 98–117.
149
Sa˙nùn, Al-Mudawwana, 15: 115.
150
Sa˙nùn, Al-Mudawwana, 15: 114.
151
Màlik b. Anas, Al-Muwa††a", 172–81. Neither maxim is present in an early
collection of Óijàzì traditions, the Mußannaf of 'Abd al-Razzàq al-Ían'ànì (d. 210/826)
or an early collection of 'Iràqì ˙adìths, the Musnad of Abù Dàwùd al-Tayàlisì
(d. 204/818–819). As a caveat, it should be noted that the Mußannaf edition that
we presently have at our disposal does not appear to be complete. It is known that
'Abd al-Razzàq did not write down the material in the Mußannaf. Rather, ninety
percent of the traditions in the collection can be attributed to one man, Is˙àq b.
Ibràhìm al-Dabarì (d. 285/898), who probably received his information from his
father. Juynboll has described the Musnad of al-ˇayàlisì as “but a shadow of what
the original work compiled by ˇayàlisì must have looked like.” Juynboll, “Islam’s
First Fuqahà",” 300, n. 27; idem, personal communication (April 1998); Harald
Motzki, “The Mußannaf of 'Abd al-Razzàq al-Ían'ànì as a Source of Authentic
A˙àdìth of the First Century A.H.,” JNES 50/1 (1991), 2.
143
152
Juynboll has shared with me his opinion that the maxim should be attributed
to Sufyàn b. 'Uyayna, and that it likely emerged in response to an 'Iràqì issue in
the late second century A.H. Juynboll, personal communication (April 1998).
153
Most sources suggest that Thamgh should be vocalized with a fat˙a over the
thà" and a sukùn over the mìm. See al-Khaßßàf, A˙kàm al-Awqàf, 4, n. 2; al-ˇa˙àwì,
Shar˙ al-Ma'ànì al-Àthàr, 4: 95, n. 4; Yàqùt, Mu'jam al-Buldàn, 2: 84; Mu˙ammad
Shams al-Óaqq al-'AΩìmàbàdì, 'Awn al-Ma'bùd: Shar˙ Sunan Abì Dàwùd, ed. 'Abd al-
Ra˙màn Mu˙ammad 'Uthmàn (Madìna: al-Maktaba al-Salafiyya, 1968–69), 8: 83;
Mu˙ammad b. 'Alì al-Shawkànì, Nayl al-Aw†àr (Egypt: Mu߆afà al-Bàbì, 1952), 6:
25. Al-Shawkànì offers an alternative vocalization with fat˙as over both the thà" and
the mìm (wa Thamagh bi-fat˙i al-muthallathati wa"l-mìm). Al-Shawkànì, Nayl al-Aw†àr,
6: 25.
154
Al-Khaßßàf, A˙kàm al-Awqàf, 151.
144
155
Al-ˇa˙àwì, Shar˙ al-Ma'ànì al-Àthàr, 4: 95. See also al-Dàraqu†nì, Sunan, 4:
187, nos. 9–10.
156
The small number of sources attesting to this Thamgh variant makes this con-
clusion more tentative, but in either case, these men would still be considered pcls
if another common link were to emerge.
145
DIAGRAM FIVE
AL-DÀRAQUˇNÌ
AL-ˇAÓÀWÌ
Ismà'ìl
Ibràhìm b. Sa'd
Nàfi'
Ibn 'Umar
157
Ibn Óajar al-'Asqalànì, Tahdhìb al-Tahdhìb, 6: 358.
158
Ibn Óajar al-'Asqalànì, Tahdhìb al-Tahdhìb, 6: 358.
159
Ibn Óajar al-'Asqalànì, Tahdhìb al-Tahdhìb, 6: 358. See also Juynboll, Muslim
Tradition, 85, where the author includes 'Abd al-'Azìz b. al-Mu††alib in a list of
three weak Meccan qà∂ìs. Al-Mizzì, by contrast, conveyed only favorable reports
about 'Abd al-'Azìz b. al-Mu††alib. See al-Mizzì, Tahdhìb, 18: 206–08, no. 3475.
160
Al-'Uqaylì, Kitàb al-Îu'afà", 3: 11, no. 966.
161
Ibn Óajar al-'Asqalànì, Tahdhìb al-Tahdhìb, 6: 358. For the confusion sur-
rounding Ibràhìm b. Sa'd’s date of death, see Tahdhìb al-Tahdhìb, 1: 122. This con-
fusion, combined with Ibràhìm’s long life-span, is evidence that there may have
been an attempt to lengthen his life in order to facilitate the transmission of ˙adìth.
Juynboll has described this phenomenon as an “age trick.” Juynboll, “Nàfi',” 219–23;
idem, Muslim Tradition, 46–48; idem, “The Role of the Mu'ammarùn,” passim.
162
Ibn Óajar al-'Asqalànì, Tahdhìb al-Tahdhìb, 1: 122.
163
Juynboll agrees that Ibràhìm b. Sa'd is only a “seeming” cl in this isnàd bundle.
Juynboll, personal communication (April 1998).
164
Ibn Óajar al-'Asqalànì, Tahdhìb al-Tahdhìb, 2: 229–30; al-Mizzì, Tahdhìb, 16:
280–82, no. 3645.
165
Ibn Óajar al-'Asqalànì, Tahdhìb al-Tahdhìb, 1: 20–21; al-Mizzì, Tahdhìb, 16:
277, 280, 283, no. 3645.
166
Ibn Óajar al-'Asqalànì, Tahdhìb al-Tahdhìb, 2: 229–30, 9: 162–63; Ibn Óajar
al-'Asqalànì, Tahdhìb al-Tahdhìb, 1: 20–21; al-Mizzì, Tahdhìb, 16: 277, 280, 283, no.
3645.
147
167
No biographical entry for al-Óusayn b. al-Huyyam could be found in either
the Tahdhìb of al-Mizzì, the Tahdhìb of Ibn Óajar al-'Asqalànì, or the Kitàb al-Îu'afà"
of al-'Uqaylì.
168
Al-Khaßßàf, A˙kàm al-Awqàf, 151.
169
Al-Khaßßàf, A˙kàm al-Awqàf, 6–7.
170
This version of the sabbala ˙adìth—just like its Khaybar counterpart—is absent
from the Ía˙ì˙s of Muslim and al-Bukhàrì.
148
DIAGRAM SIX
AL-DÀRAQUˇNÌ
fulàn
AL-NASÀ"Ì
2 fulàns
Nàfi'
Ibn 'Umar
Ibn Óanbal, Al-Musnad, 8: 169, no. 5947; al-Dàraqu†nì, Sunan, 4: 187, nos. 11–12, 193–94,
nos. 5–6; al-Nasà"ì, Sunan, 6: 194; al-Khaßßàf, A˙kàm al-Awqàf, 6–7.
149
171
Referring to this Thamgh variant, but not its Khaybar counterpart [see Diagram
Three], as a spider bundle may appear inconsistent. In fact, it is true that both
isnàd bundles share a noted lack of pcl-supported †uruq. Nevertheless, I have refrained
from designating the Khaybar isnàd bundle a spider, because there are grounds for
accepting an authentic transmission of the ˙adìth between al-Shàfi'ì, al-Óumaydì,
and Sufyàn b. 'Uyayna. By contrast, none of the †uruq in this bundle can be con-
sidered historically authentic lines of transmission.
172
Juynboll, “Nàfi',” 214.
173
Juynboll, “Nàfi',” 216.
174
The Thamgh sabbala variant is found in two places in al-Khaßßàf ’s A˙kàm al-
Awqàf, 6–7, and in one tradition in Ibn Óanbal’s Musnad, 8: 169, no. 5947.
150
Prophet how he can give alms by means of it. The Prophet responds
to 'Umar’s query with a maxim using the keyword taßaddaqa and
one of the three conditions from the Khaybar version of the taßad-
daqa ˙adìth:
Mùsà b. [Sulaymàn]—Íakhr b. Juwayriyya—Nàfi'—Ibn 'Umar: Verily,
'Umar had land belonging to him called Thamgh and it was a pre-
cious date grove (kàna nakhlan nafìsan). ['Umar] said: “O Messenger of
God, verily I have acquired property, and it is precious to me. Shall
I give it away as alms?” (a-fa-ataßaddaqu bi-hi?). And the Messenger of
God said, “Give away its principal as alms [but] it may not be sold,
given away as gift, or inherited” (taßaddaq bi-aßlihi wa-là yubà'u wa-là
yùhabu wa-là yùrathu).175
Traditions in the Ía˙ì˙ of al-Bukhàrì and the Sunan of al-Bayhaqì
mirror this ˙adìth, but also include the remaining two conditions from
the Khaybar version—the specification of charitable ends and the
rules for the administrator.176
There are some important differences between this ˙adìth and the
previously analyzed traditions. First, only the hybrid-Thamgh vari-
ant employs the verb “istafàda” to convey the meaning of “to acquire.”
In the other ˙adìths, the verb “aßàba” is used. Second, while the
above maxim contains the keyword “taßaddaqa” it also inverts the
meaning of the previously analyzed traditions—now the principal,
rather than the usufruct, is being distributed as alms, making the
injunction “wa-là yubà'u wa-là yùhabu wa-là yùrathu” a non sequitur.
Not only would the distribution of the property’s principal under-
mine the financial soundness of the waqf, but the ˙adìth likewise pro-
vides no statement concerning the separation of usufructory rights
from proprietary ownership. Apparently, even some of the Muslim
˙adìth collectors were a little confused (or concerned) by the reper-
cussions of this maxim. In al-Bayhaqì’s Sunan another ˙adìth is affixed
to the end of this variant in order to re-direct the meaning of the
maxim. This supplementary ˙adìth contains a more standard form
of the taßaddaqa maxim, imploring 'Umar to sequester the principal
and distribute the yields to charity.177 Nevertheless, in spite of these
175
Al-Khaßßàf, A˙kàm al-Awqàf, 6.
176
Al-Bukhàrì, Ía˙ì˙, 5: 23–24, no. 2481; al-Bayhaqì, Kitàb al-Sunan al-Kubrà, 6:
159–60.
177
Al-Bayhaqì, Kitàb al-Sunan al-Kubrà, 6: 159–60. The ˙adìth that al-Bayhaqì cites
is: Ya˙yà b. Sa'ìd al-Anßàrì—Nàfi'—Ibn 'Umar: Verily, 'Umar consulted the
151
Preliminary Conclusions
At the outset of this analysis, it was suggested that most of these
waqf-related traditions could be placed into two broad categories—
those that contain the keyword “taßaddaqa” and those with the key-
word “sabbala.” While it is still true that these keywords orient most
˙adìths, research into the narrative structures surrounding these max-
ims also suggests a second organizing principle—˙adìths which men-
tion Khaybar versus those which make reference to Thamgh.
Broadly speaking, it appears that the Khaybar narratives preceded
the Thamgh variants. This conclusion is based in part on the absence
of any reference to Thamgh in the earliest discussions of waqf. It is
more than a little odd that neither Màlik, nor Sa˙nùn, nor al-Shàfi'ì,
nor Hilàl seems to have heard of Thamgh. This lacuna is even more
surprising in the writings of al-Shàfi'ì and Hilàl because both men
make reference the location of 'Umar’s ßadaqa.180 For example, in
the same sentence in which al-Shàfi'ì refers to 'Alì b. Abì ˇàlib’s
ßadaqa in Yanbu', he fails to mention Thamgh as the location of
'Umar’s ßadaqa.181 Apparently al-Shàfi'ì believed 'Umar’s ßadaqa was
in Khaybar, since this toponym is the only one cited in the Kitàb
al-Umm.182 Even when Thamgh is mentioned and a connection is
Messenger of God in the matter of giving away as alms (taßaddaqa bi ) his property
which was in Thamgh, and the Prophet said to him, “Give its fruits/yields as alms
and sequester its principal; and it is not to be sold or inherited” (taßaddaq bi-thamarihi wa-
"˙bas aßlahu là yubà' wa-là yùrath).
178
Juynboll, personal communication (April 1998).
179
Juynboll, “Nàfi',” 216.
180
Al-Shàfi'ì, Kitàb al-Umm, 4: 53; Hilàl al-Ra"y, A˙kàm al-Waqf, 72–78.
181
Al-Shàfi'ì, Kitàb al-Umm, 4: 53.
182
Al-Shàfi'ì, Kitàb al-Umm, 4: 53.
152
DIAGRAM SEVEN
AL-BAYHAQÌ
A˙mad b. Mu˙ammad
AL-KHAÍÍÀF AL-BUKHÀRÌ
Óammàd b. Shàkir
Mu˙ammad b. Ismà'ìl
Hàrùn b. Ash'ath
Sakhr b. Juwayriyya
Nàfi'
Ibn 'Umar
183
Al-Khaßßàf, A˙kàm al-Awqàf, 151.
184
Al-Khaßßàf, A˙kàm al-Awqàf, 149–51.
154
185
Since none of the taßaddaqa maxims exists outside of its narrative framework,
it is virtually impossible to state with certainty when this maxim might have come
into existence, and/or whether it was a holdover from a Near Eastern (i.e., Roman,
Byzantine, Persian and/or Jewish) legal system.
186
Schacht, Introduction to Islamic Law, 29.
155
* * *
187
Al-Dàraqu†nì, Sunan, 4: 186, no. 8.
188
Ibn Hishàm, Sìrat al-Nabì, 3: 464; al-Wàqidì, Kitàb al-Maghàzì, 1: 375, 2: 690;
al-Balàdhurì, Futù˙ al-Buldàn, 34, 39.
189
The cl for these two ˙adìths, Yùnus b. Mu˙ammad (d. 207–08/822–23) was
156
The ßadaqa deed of 'Umar constitutes the second leg of the trian-
gular matrix from which the waqf derives its legitimacy. In the Islamic
tradition the deed is presented as a unitary document in which 'Umar
specifies the charitable purposes of his waqf and then stipulates a
mechanism for the transfer of the property to subsequent genera-
tions. In spite of its unitary appearance, an examination of the
ßadaqa deed suggests a juxtaposition of two related documents. More-
over, there exists a variant set of ßadaqa deeds which intermingle
aspects of both deeds to create a third, composite ßadaqa deed.
Ía˙ì˙. Thus, it is unclear from what source al-Shawkànì received his information.
Ibn Óanbal, Al-Musnad, 8: 169, no. 5947.
192
Mu˙yì al-Dìn Ya˙yà b. Sharaf al-Nawawì, “Commentary,” in al-Qas†allànì,
Irshàd, 7: 92.
193
Ibn Sa'd, Kitàb al-ˇabaqàt al-Kubrà (Beirut, 1377/1957), 4: 384; Michael
Fishbein, trans., The History of al-ˇabarì: The Victory of Islam (Albany, NY: State
University of New York Press, 1997), 8: 10, n. 54. See also Michael Lecker’s dis-
cussion of the Banù Óàritha’s conversion to Islam in Muslims, Jews and Pagans (New
York and Leiden: E. J. Brill, 1995), 24, 156–64.
194
Ibn Hishàm, Sìrat al-Nabì, 3: 9; al-ˇabarì, Ta"rìkh, 2: 506.
158
195
Ibn Óanbal, Al-Musnad, 6: 277, no. 4608.
196
Al-Qas†allànì, Irshàd, 5: 25–26; al-'AΩìmàbàdì, 'Awn al-Ma'bùd, 8: 82–83; 'Abd
al-Ra˙màn b. 'Alì b. al-Dayba' al-Shaybànì, Taysìr al-Wußùl ilà Jàmi' al-Ußùl min
Óadìth al-Rasùl (Egypt: Mu߆afà al-Bàbì al-Óalabì, 1968–1969), 3: 259; Abù Dàwùd,
Sunan Abù Dàwùd, trans. A˙mad Óasan (Lahore: Sh. Mu˙ammad Ashraf, 1984), 2:
811, no. 2873.
159
197
The isnàd of the first ßadaqa deed also raises questions about the deed’s authen-
ticity. The transmitter of the deed is Ya˙yà b. Sa'ìd b. Qays al-Anßàrì (d. 143–146/
760–763), a man considered generally reliable in the transmission of ˙adìth. The
person from whom Ya˙yà b. Sa'ìd b. Qays purportedly acquired his information,
'Abd al-Óamìd, is an obscure figure in the Islamic tradition. Although 'Abd al-
Óamìd was the grandson of 'Umar b. al-Kha††àb, and conceivably could have been
present to hear the many ˙adìths transmitted by his grandfather, his tarjama in the
Tahdhìb of Ibn Óajar al-'Asqalànì does not report that any ˙adìths were conveyed
on his authority. Rather, the only reference made to him is in connection with his
transmission of 'Umar’s ßadaqa deed to Ya˙yà b. Sa'ìd b. Qays al-Anßàrì. Ibn Óajar
al-'Asqalànì, Tahdhìb al-Tahdhìb, 6: 118, 11: 221–24.
198
Manßùr 'Alì Nàßif ’s commentary includes only this second deed. Nàßif, Al-
Tàj al-Jàmi' li"l-Ußùl fì A˙àdìth al-Rasùl (Cairo: Dàr I˙yà" al-Kutub al-'Arabiyya,
1968), 2: 245. The absence of the first deed seems to confirm the conclusion that
the two deeds are not one document, but two separate traditions that later became
juxtaposed in the Islamic tradition.
160
199
The use of term “awßà” is confusing because it suggests that this was a bequest
and not a pious endowment. However, the conditions imposed on the property
established a waqf and the Islamic tradition has always viewed it as such.
200
Al-Qas†allànì, Irshàd, 5: 26; al-'AΩìmàbàdì, 'Awn al-Ma'bùd, 8: 83–85; Nàßif,
Al-Tàj, 2: 245; Ibn al-Dayba' al-Shaybànì, Taysìr, 3: 259; Abù Dàwùd, Sunan, 2:
811, no. 2873.
201
Albrecht Noth, The Early Arabic Historical Tradition: A Source-Critical Study, trans.
Michael Bonner (Princeton, NJ: The Darwin Press, Inc., 1994), 65.
202
Ibn al-Dayba' al-Shaybànì, Taysìr, 3: 259; Abù Dàwùd, Sunan, 2: 811, no.
2873.
161
203
Nàßif, Al-Tàj, 2: 245.
204
Ibn Óajar al-'Asqalànì, Tahdhìb al-Tahdhìb, 10: 254.
205
Ibn Óajar al-'Asqalànì, Tahdhìb al-Tahdhìb, 10: 254.
206
Ibn Óajar al-'Asqalànì, Tahdhìb al-Tahdhìb, 10: 254.
207
Ibn Óajar al-'Asqalànì, Tahdhìb al-Tahdhìb, 5: 146.
208
Ibn Óajar al-'Asqalànì, Tahdhìb al-Tahdhìb, 5: 146.
209
Ibn Óajar al-'Asqalànì, Tahdhìb al-Tahdhìb, 5: 146–47.
162
210
Admittedly, this argument from silence cannot establish that the these jurists
never made this linkage, but if they did, they did not express it in the writings that
have come down to us.
211
Hilàl al-Ra"y, A˙kàm al-Waqf, 7–10, 72–73.
212
Hilàl al-Ra"y, A˙kàm al-Waqf, 73.
213
Al-Khaßßàf, A˙kàm al-Awqàf, 8–9. See also pages six and eight for two addi-
163
The Ía˙ì˙ of al-Bukhàrì also contains a ˙adìth which reflects the frag-
mentation of 'Umar’s ßadaqa deed. Although the ˙adìth refers to the
deed, it only mentions the condition concerning the guidelines for
administrators.214
This recontextualization and segmentation of the ßadaqa deed in
the waqf treatises of Hilàl and al-Khaßßàf and the Ía˙ì˙ of al-Bukhàrì
raises the possibility that elements of the deed circulated as inde-
pendent ˙adìths or akhbàr reports before becoming juxtaposed in the
ßadaqa deed of 'Umar. A proto-ßadaqa deed may have existed, but it
did not exist as a unitary document, and it may have only been
when this unitary document emerged that the links became Khaybar
and Thamgh became established.
The literary form of the second ßadaqa deed also suggests that this
document is not a first-century source. Albrecht Noth has observed
that many early texts conform to a series of literary conventions. So
repetitive are the structures of these documents that Noth has con-
cluded that these texts should not be considered verbatim survivals
from the earliest period.215 Although the ßadaqa deed cannot be directly
compared with the capitulation treaties analyzed by Noth, the docu-
ments do share a number of component parts. In both sets of
documents, the basmala functions as an invocatio to introduce the writ-
ten text. Likewise, both documents make reference to the actual writ-
ing down of the text. In particular, Noth remarks that the use of
the verb “to write” (kataba) and the naming of the scribe are com-
mon literary conventions.216 The two types of documents also share
an attestation by witnesses, and a main body (dispositio) that provides
a precise description of the subject at hand. The presence of these
literary forms supports the claim that the deed was the product of
a process by which independent traditions—including perhaps the
references to Thamgh in the variant ˙adìths—were molded into stan-
dard literary forms to create an “authentic” first-century document.
tional ˙adìths which present the rules for the administrator independently of the
ßadaqa deed. The ˙adìth on page eight also mentions the transfer of 'Umar’s ßadaqa
to Óafßa.
214
Al-Bukhàrì, “Kitàb al-Wakàla,” in Ía˙ì˙ al-Bukhàrì, 4: 148.
215
Noth, The Early Arabic Historical Tradition, 63.
216
The second ßadaqa deed names the scribe and uses the verb kataba. Noth
observed in his own work that the verb kataba was employed in about half the cases
to indicate the writing down of the treaty, while the citing of the scribe’s name
occurred less often. Noth, The Early Arabic Historical Tradition, 65–66.
164
217
Al-Khaßßàf, A˙kàm al-Awqàf, 7; al-Bayhaqì, Kitàb al-Sunan al-Kubrà, 6: 160.
These two hybrids are not identical, but they have virtually the same content. The
greatest difference between the two is that al-Bayhaqì’s version includes all of the
second ßadaqa deed. The redundancy of this inclusion suggests that the second deed
was simply attached to the hybrid version.
218
In al-Shàfi'ì’s Kitàb al-Umm one finds a stylized waqf deed [see Appendix C].
Even though 'Umar’s deed was probably not a model for al-Shàfi'ì—given the tex-
tual differences and the chronological arguments adduced above—the concept of a
written waqf deed had clearly entered legal discourse by the late second century
A.H. Al-Shàfi'ì’s deed, although far more detailed than 'Umar’s terse deed, reca-
pitulates the basic literary elements found in 'Umar’s document: the founder stip-
ulates the precise location of the lands to be made a waqf, delineates the charitable
ends to which the waqf ’s usufruct will be dedicated, creates a mechanism for the
designation of future beneficiaries, discusses the role of the administrator, and then
asks for the names of witnesses. In addition to al-Shàfi'ì’s model for a waqf deed,
evidence from fourth-century A.H. papyri and waqf inscriptions indicates that the
elements of a waqf deed had become standardized, even if they did not always
appear in the same order. Al-Shàfi'ì, Kitàb al-Umm, 4: 59–61; Adolf Grohmann,
Arabic Papyri in the Egyptian Library (Cairo: Egyptian Library Press, 1936), 2: 157–61;
D. S. Margoliouth, Catalogue of the Arabic Papyri in the John Rylands Library at Manchester
(Manchester, UK: Manchester University Press, 1933), 52/2: 92; Rà©ib, “Acte de
waqf d’une maison,” 36–45.
165
219
Al-Qas†allànì, Irshàd, 5: 26; al-'AΩìmàbàdì, 'Awn al-Ma'bùd, 8: 85; Nàßif, Al-
Tàj, 2: 245.
220
Al-Qas†allànì, Irshàd, 5: 26; al-'AΩìmàbàdì, 'Awn al-Ma'bùd, 8: 83–85; Nàßif,
Al-Tàj, 2: 245.
221
Nàßif, Al-Tàj, 2: 245.
222
Al-Khaßßàf, A˙kàm al-Awqàf, 8. This same ˙adìth appears in al-ˇa˙àwì, Shar˙
al-Ma'ànì al-Àthàr, 4: 99, with the isnàd: Yùnus—Ibn Wahb—Màlik—Ziyàd b. Sa'd—
Ibn Shihàb.
166
one hand, the Thamgh variants and the first ßadaqa deed either
implicitly suggest or explicitly indicate that Thamgh was property
located in Khaybar, an oasis nearly 100 miles from Madìna. On the
other hand, as noted in the conclusion to section one, there exists
a ˙adìth which states that Thamgh belonged to the Banù Óàritha, a
Jewish tribe which resided near Madìna. Although commentators
such as al-Nawawì, al-Qas†allànì and al-Shawkànì were certain that
Thamgh was located in Khaybar,223 other commentators found that
the evidence supported a Madìnan location. In the Nihàya, Ibn al-
Athìr (d. 606/1209) reported that Thamgh and Íirma b. al-Akwa'224
were “two well known properties in Madìna (humà màlàni ma'rùfàni
bi"l-Madìna) which belonged to 'Umar b. al-Kha††àb, may God be
pleased with him; he made them both a waqf.”225 Al-Khaßßàf, Abù
Dàwùd, and Ibn al-Dayba' al-Shaybànì all glossed Thamgh as prop-
erty belonging to 'Umar in Madìna,226 and Abù 'Ubayd al-Bakrì227
similarly claimed that Thamgh was “land opposite (tilqà"a) Madìna
which belonged to 'Umar, may God be pleased with him.”228
The Madìnan location of Thamgh is further affirmed in Nàßif ’s
commentary on the following passage from 'Umar’s ßadaqa deed:
“Thamgh, Íirma b. al-Akwa' and the servant who is in it, the 100
shares which are in Khaybar and the slaves who are in it, and the
100 [shares] which Mu˙ammad gave to him in al-Wàdì.” In his
analysis of this passage, Nàßif claimed that Thamgh, along with Íirma
b. al-Akwa' were “two estates belonging to 'Umar in Madìna” (∂ay'atàn
kànatà li-'Umar bi"l-Madìna),229 adding that slaves labored on the estate
of Thamgh.230 Nàßif stated that the “100 shares”—a clause also men-
223
Al-Nawawì, “Commentary,” in al-Qas†allànì, Irshàd, 7: 92; al-Qas†allànì, Irshàd,
5: 25; al-Shawkànì, Nayl al-Aw†àr, 6: 25.
224
Íirma b. al-Akwa' was described as “an insignificant, sparse plot of land con-
taining date-palms and camels” (al-qi†'a al-khafìfa min al-nakhl wa"l-ibil ). See Nàßif,
Al-Tàj, 2: 245; al-'AΩìmàbàdì, 'Awn al-Ma'bùd, 8: 84. Al-'AΩìmàbàdì cites the Fat˙
al-Wadùd (possibly of al-Mukhtàr b. A˙mad al-Kuntì) and Ibn al-Athìr’s Al-Nihàya
as the sources for his information on Íirma b. al-Akwa'.
225
Ibn al-Athìr, Al-Nihàya fì Gharìb al-Óadìth wa"l-Athar (Qum, Iran: Mu"assasat
Ismà'ìliyàn, 1364/1985), 1: 222. Also cited in al-'AΩìmàbàdì, 'Awn al-Ma'bùd, 8: 83.
226
Al-Khaßßàf, A˙kàm al-Awqàf, 151, n. 1; Ibn al-Dayba' al-Shaybànì, Taysìr, 3:
259; Abù Dàwùd, Sunan, 2: 811, no. 2282.
227
Al-'AΩìmàbàdì also claims that Ibn Óajar al-'Asqalànì mentioned this state-
ment. Al-'AΩìmàbàdì, 'Awn al-Ma'bùd, 8: 83.
228
Al-Qas†allànì, Irshàd, 5: 25; al-'AΩìmàbàdì, 'Awn al-Ma'bùd, 8: 83.
229
Nàßif, Al-Tàj, 2: 245.
230
Nàßif, Al-Tàj, 2: 245.
167
231
Nàßif, Al-Tàj, 2: 245.
232
Nàßif, Al-Tàj, 2: 245. Al-'AΩìmàbàdì adds that the wàdì was known to have
contained many villages. Al-'AΩìmàbàdì, 'Awn al-Ma'bùd, 8: 85, citing 'Abd al-Mu"mìn
b. 'Abd al-Óaqq al-Baghdàdì’s and Yàqùt b. 'Abd Allàh al-Óamawì’s Al-Maràßid
al-Ittilà' 'alà Asmà" al-Amkina wa"l-Biqà' (Beirut: Dàr al-Ma'rifa, 1954–55), 3: 1417.
Ibn al-Athìr reports that the Prophet built a mosque there. Ibn al-Athìr, Al-Nihàya,
4: 36. There is a sabbala ˙adìth in al-Khaßßàf ’s waqf treatise indicating that the wàdì
might be Wàdì al-Khashàshàn, located in-between two hills near Madìna. According
to this tradition, the Prophet gave 'Umar Thamgh from this land, and 'Umar then
attached it to other lands that the Prophet had given him. This narrative provides
the background for the sabbala maxim which concludes the tradition. Al-Khaßßàf,
A˙kàm al-Awqàf, 4–5.
233
Yàqùt, Mu'jam al-Buldàn, 2: 84–85.
234
Ibn Óanbal, Al-Musnad, 8: 224–25, no. 6078; al-Qas†allànì, Irshàd, 5: 25; al-
'AΩìmàbàdì, 'Awn al-Ma'bùd, 8: 85.
168
235
Ibn Óajar al-'Asqalànì, al-Fat˙, 5: 299.
236
The basis for Ibn Óajar’s resolution of the Thamgh issue remains unclear.
Within the Islamic tradition there does not appear to be any support for his
conclusion.
169
It is well-known that when the Prophet died he left only three things:
a white mule, his weapons, and some land which he had designated
as a ßadaqa.237 Although this tradition clearly states that the Prophet
237
Al-Bukhàrì, Ía˙ì˙, 5: 4, no. 2458. The issue of the Prophet’s inheritance is a
contentious one in Islamic history. As Ignaz Goldziher related in Muslim Studies, the
question of whether the Prophet left an inheritance became enmeshed in the polit-
ical struggle between 'Alid Shì'a supporters and their opponents. As a result of this
conflict, numerous ˙adìths emerged both for and against the Prophet leaving an
inheritance. This ˙adìth does not specifically address the issue of the Prophet’s inher-
itance, but it is located in a section that contains anti-'Alid ˙adìths rejecting the idea
that the Prophet had left an inheritance. This juxtaposition suggests that there might
be some relation between the reports concerning the ßadaqa of the Prophet and the
anti-inheritance traditions. See Goldziher, Muhammedanische Studien (Muslim Studies),
translated from German by C. R. Barber and S. M. Stern (New York: George
Allen & Unwin, Ltd., 1971), 2: 112–15. See also Powers, Studies, 113–31, for a dis-
cussion of the relationship between the Prophet’s inheritance and political succes-
sion; and al-Bukhàrì, Ía˙ì˙, 5: 4–5, nos. 2459–60, for two anti-inheritance ˙adìths.
170
238
Al-Wàqidì, Kitàb al-Maghàzì, 1: 377.
239
Ibn Sa'd, ˇabaqàt al-Kabìr, 1/2: 183.
240
Al-Balàdhurì, Futù˙ al-Buldàn, 30, 42.
241
Al-Khaßßàf, A˙kàm al-Awqàf, 4; al-Shawkànì, Nayl al-Aw†àr, 6: 27.
171
Emigrants claimed that Thamgh was the first Islamic waqf, while in
another ˙adìth the Helpers were alleged to have supported the posi-
tion that it was the Prophet who had established the “first ˙ubs in
Islam.”242
Aside from the vague political controversy surrounding this debate,
the ramifications of this discussion are not readily apparent. In fact,
many awà"il debates seem to be little more than exercises in the
accumulation of historical trivia.243 Within juristic discourse, how-
ever, the trivial nature of this debate is deceptive. Not only is chronol-
ogy important in terms of abrogation, but for a legal system whose
legal legitimacy was derived almost exclusively from a few crucial
decades in the past, awà"il questions determined which precedent-
setting action or word would serve as the normative model.244
The issue of Prophetic precedent probably lies at the center of
the debate over the first Islamic waqf. Although the awà"il genre may
have spurred discussion on this matter, the attempt to situate the
Prophet as the founder of the first Islamic waqf appears to have orig-
inated within a broader concern to establish Prophetic sanctioning
for this legally contentious institution. Just as it was untenable that
'Umar could have created a waqf without Prophetic input, so was
the premise that a Companion’s action could have provided the legal
precedent for these endowments (particularly in post-Shàfi'ì legal dis-
course). To manufacture this Prophetic precedent, it was necessary
to impose a chronology onto the Islamic tradition that had the
Prophet establishing the first waqf.245 Although anachronistic, this
newly created historical order established Prophetic authority over
all aspects of the waqf ’s legitimating framework.
Confirmation of the artificial manner in which Prophetic actions
were projected onto the past is provided by the Islamic tradition
itself. Among those who allege that the Prophet’s ˙ubs/ßadaqa was
the first waqf in Islam, there is general agreement that the endowed
242
Al-Khaßßàf, A˙kàm al-Awqàf, 4–5.
243
Noth, The Early Arabic Historical Tradition, 108.
244
Wansbrough, The Sectarian Milieu, 36.
245
Wansbrough, Qur"ànic Studies, 177. In his discussion of the Qur"àn, Wansbrough
describes a similar process whereby a chronology was imposed on the Qur"àn to
assist the development of both halakhic (i.e. sharì 'a) and masoretic (i.e. tafsìr) exe-
gesis: “Solutions to the problems . . . were sought, and for the most part found, by
imposing upon the document of revelation a chronological stencil. Historical order
could thus be introduced into what was essentially literary chaos.”
172
246
Óawà"i† (s. ˙à"i†) are date gardens surrounded by a wall. Ibn ManΩùr, Lisàn
al-'Arab, 7: 279–80.
247
There is a variant tradition which replaces the “rà"” in “al-A'ràf ” with a
“wàw” to make the garden’s name “al-A'wàf.” See al-Khaßßàf, A˙kàm al-Awqàf, 2,
n. 3.
248
Also translated as “al-Óasnà.” Al-Balàdhurì, The Origins of the Islamic State,
trans. Philip Hitti and Francis Murgotten (New York: Columbia University Press,
1916–24), 1: 35, n. 2. The fourteenth-century C.E. manuscript copy of the A˙kàm
al-Awqàf of al-Khaßßàf reports that the garden was called “al-Khuthnà".”
249
Based on his studies of Madìna during the lifetime of Prophet, Lecker has
attempted to reconstruct the story behind the name of this garden. Citing Ibn
'Asàkir’s Ta"rìkh Madìnat Dimashq, Lecker writes that Umm Ibràhìm was the Coptic
slave-girl, Màriya, who bore the Prophet a son (Ibràhìm) who died in infancy.
According to these traditions, the Prophet took Màriya to an orchard that he owned
in the 'Àliya (upper Madìna, located at the southern end of the town). The Banù
al-Na∂ìr had owned the orchard prior to their expulsion. Màriya resided in the
orchard during the summers and the date seasons, and the Prophet would visit her
there. Due to her presence in the orchard, it subsequently acquired the appellation
“Umm Ibràhìm.” Lecker, Muslims, Jews and Pagans, 8.
250
Al-Khaßßàf, A˙kàm al-Awqàf, 1–2. Similar traditions can be found in al-Balàdhurì,
Futù˙ al-Buldàn, 27–28; al-Wàqidì, Kitàb al-Maghàzì, 1: 262–63; Ibn Sa'd, Kitàb al-
ˇabaqàt al-Kabìr, 1/2: 182.
173
251
Al-Khaßßàf, A˙kàm al-Awqàf, 1.
252
Al-Khaßßàf, A˙kàm al-Awqàf, 1.
253
The only difference between the three reports concerns the tribal affiliation
of Mukhayrìq. Ibn Hishàm and al-ˇabarì report that Mukhayrìq was from the
Banù Tha'laba b. al-Fi†yùn while Ibn al-Athìr does not.
254
I.e., only one of the three traditions has an isnàd, so I am describing them as
“akhbàr reports.”
255
Ibn Hishàm, Sìrat al-Nabì, 3: 42; al-ˇabarì, Ta"rìkh, 2: 531; Ibn al-Athìr, Al-
Kàmil, 2: 162.
256
Ibn Hishàm, Sìrat al-Nabì, 3: 42; al-ˇabarì, Ta"rìkh, 2: 531; Ibn al-Athìr, Al-
Kàmil, 2: 162.
257
Ibn Hishàm, Sìrat al-Nabì, 3: 42; al-ˇabarì, Ta"rìkh, 2: 531; Ibn al-Athìr, Al-
Kàmil, 2: 162. There is some confusion in the sources over the state of Mukhayrìq’s
faith at the time of his death. Ibn Hishàm notes that there is a variant tradition
which reports that Mukhayrìq was among those who converted to Islam from
Judaism. See Sìrat al-Nabì, 3: 42, n. 4. In the A˙kàm al-Awqàf of al-Khaßßàf, how-
ever, the author cites a ˙adìth which states that Mukhayrìq did not convert to Islam,
but nonetheless received burial in a Muslim cemetery: “When he [Mukhayrìq] died
he was buried in a corner of the Muslim cemetery, but no one prays over him.”
Al-Khaßßàf, A˙kàm al-Awqàf, 2.
258
Ibn Hishàm, Sìrat al-Nabì, 3: 42; al-ˇabarì, Ta"rìkh, 2: 531; Ibn Athìr, Al-
Kàmil, 2: 162.
174
259
Al-Khaßßàf, A˙kàm al-Awqàf, 2.
260
Ibn Hishàm, Sìrat al-Nabì, 3: 42; al-ˇabarì, Ta"rìkh, 2: 531.
261
Al-Khaßßàf, A˙kàm al-Awqàf, 3.
262
Al-Balàdhurì, Futù˙ al-Buldàn, 30, 42; al-Wàqidì, Kitàb al-Maghàzì, 1: 377; Ibn
Sa'd, Kitàb al-ˇabaqàt al-Kabìr, 1/2: 183. Marco Scholer reports a tradition in the
Tafsìr of Abù l-Na∂r Mu˙ammad b. al-Sà"ib b. Bishr al-Kalbì (d. 146/763), which
states that the Prophet made other properties a waqf: “Fadak and Khaybar were
made a waqf by the Prophet for the benefit of the poor, so they remained in his
hands during his life. After the Prophet’s death, they were left in the hands of Abù
Bakr, then likewise in the hands of 'Umar, 'Uthmàn and 'Alì b. Abì ˇàlib, always
remaining in the same condition, and they have remained this way until today.”
Scholer states that he considers the tradition to be an interpolation made by the
late third or early fourth century A.H. compiler of the Tafsìr al-Kalbì because it
reflects a “strong Sunnì claim,” and the lands in Fadak had become a source of
polemics between Sunnìs and Shì'ites. Marco Scholer, “Sìra and Tafsìr,” in The
Biography of Mu˙ammad: The Issues of the Sources, ed. Harald Motzki (Leiden: E. J.
Brill, 2000), 40, 43. The use of the term “waqf ” is also indicative of later creation
since use of this term was exceptional in second century A.H. discourse.
175
263
Al-Wàqidì, Kitàb al-Maghàzì, 1: 378.
264
Ibn Sa'd, Kitàb al-ˇabaqàt al-Kabìr, 1/2: 182–83.
265
'Alì b. A˙mad al-Samhùdì, Wafà" al-Wafà" bi-Akhbàr Dàr al-Mu߆afà (Cairo:
Al-Àdab wa"l-Mu"ayyad, 1326/1908), 2: 154.
266
Mu˙ammad M. Amìn, Al-Awqàf wa"l-Óayàt al-Ijtimà'iyya fì Mißr: 648/923–1250/
1517/Pious Endowments and Social Life in Egypt (Cairo: Cairo University, 1980), 16.
267
Amìn, Al-Awqàf, 17.
176
268
Skepticism towards these “first waqf ” traditions has been an assumption under-
lying this analysis. The intellectual foundation for this skepticism can be found in
the work of Schacht, who contended that the presence of conflicting ˙adìths—such
as the ones surrounding the first Islamic waqf—provided proof for the “continuing
growth” of the Islamic corpus throughout the second and third Islamic centuries.
There is, however, another way of viewing these contradictory ˙adìths. Michael
Lecker has argued that Schachtian skepticism is misplaced, because it fails to take
into account how the Islamic tradition expanded during its formative phases.
According to Lecker, divergent traditions emerged as a consequence of the decen-
tralized, family-centered nature of first-century ˙adìth production and preservation:
In this first phase, which preceded the appearance of systematic compilations,
Islamic historiography came into existence in the form of an enormous body
of historiographical records preserved (both in written form and as oral tradi-
tion) by people mainly interested in the history of their families and clans.
Thanks to these early experts, whose scope and ambition were rather limited,
Islamic historiography made a stormy appearance, gaining immense propor-
tions within several decades of the 1st/7th century.
Lecker, “The Death of the Prophet Mu˙ammad’s Father,” 11. In spite of the appar-
ent relevance of this passage to the conflicting accounts discussed here, there are
several reasons to challenge its applicability in this case. First, it is difficult to see
what familial/tribal advantages first-century Muslims would have garnered by link-
ing the Prophet’s waqf to Jewish tribes unless one proposes that the descendants of
Mukhayrìq, the Banù al-Na∂ìr or the Banù QurayΩa propagated these traditions.
Second, the question of whether or not the Prophet founded the first Islamic waqf
carries legal ramifications that traditions surrounding the death-date of Mu˙ammad’s
father do not, which would have created incentives for the production of the waqf
traditions in subsequent centuries.
177
ans have tended to invert this order and privilege the waqfs of the
Prophet over the other two legs of the legitimating triad. For exam-
ple, in Amìn’s historical study of the early waqf, the author lists eight
different properties alleged to have been the Prophet’s waqfs before
mentioning anything about 'Umar b. al-Kha††àb.269 This internal-
ization of the awà"il genre by modern historians is taken a step fur-
ther in the writing of Muhammad Farooqi, who has used the awà"il
question to isolate an even earlier Prophetic waqf. According to
Farooqi, the first waqf in Islam was land dedicated to the construc-
tion of mosques in Quba and Madìna in the year 1/622.270 In this
tradition, as related in the Ta"rìkh of al-ˇabarì, the Prophet desired
a piece of land for his mosque in Madìna, but the land belonged
to two orphans of the Banù al-Najjàr, Sahl and Suhayl. The Prophet
offered to let the two orphans set a price for the land, but they
refused, and donated it to the Prophet in order to receive a reward
from God.271 The same story is told in Ibn Hishàm’s Sìrat al-Nabì,
but the ending is different—the protector of the two orphans, Mu'àdh
b. 'Afrà", informs the Prophet that he will compensate the two boys
for the Prophet’s taking of the land so that they should not suffer
hardship for so noble a cause.272 Presumably, what makes the mosque
269
Amìn, Al-Awqàf, 16–19. Amìn’s eight Prophetic waqfs are: (1) the seven gar-
dens of Mukhayrìq; (2) the unspecified properties of the Banù al-Na∂ìr; (3–5) three
forts in Khaybar—al-Katìba, al-Wa†ì˙ and al-Sulàlim; (6) Fadak; (7) Wàdì al-Qurà;
and (8) the market in Madìna.
270
Muhammad Yousuf Farooqi, “The Institution of Waqf in Historical Perspective,”
Hamdard Islamicus 13/1 (1990), 25.
271
Al-ˇabarì, Ta"rìkh, 2: 396–97.
272
Ibn Hishàm, Sìrat al-Nabì, 2: 122–23. Differences between Ibn Hishàm and
al-ˇabarì are not unusual. Although the texts are very similar, they each draw upon
a different recension (riwàya) of the no longer extant Sìra of Ibn Is˙àq (d. ca. 150/768)
for their history of the Prophet’s life. While it is common to refer to Ibn Hishàm’s
Sìra as essentially the equivalent of Ibn Is˙àq’s work, the text of Ibn Hishàm’s Sìra
actually constitutes an abbreviated, annotated version of Ibn Is˙àq’s work based
upon the riwàya of Ziyàd al-Bakkà"ì (d. 183/799). By contrast, al-ˇabarì’s biogra-
phy draws upon the riwàya of Salamah b. Fa∂l al-Abrash al-Anßàrì (d. 191/807)
and its subsequent transmission to Ibn Óumayd (d. 248/862), one of al-ˇabarì’s
teachers in the city of al-Rayy. The reliance of al-ˇabarì and Ibn Hishàm on
different riwàyas may explain some of the small, but significant textual discontinu-
ities in their respective accounts of the building of the first mosque in Madìna. See
Ismail K. Poonawala, “Translator’s Foreword,” in The History of al-ˇabarì: The Last
Years of the Prophet (Albany: State University of New York Press, 1990), 9: xi; Franz
Rosenthal, “General Introduction: The Life and Works of al-ˇabarì,” in The History
of al-ˇabarì: From the Creation to the Flood (Albany: State University of New York Press,
1989), 1: 17.
178
a waqf is that the Prophet took possession of the land and then
donated it to a charitable purpose. Interestingly, neither al-ˇabarì
nor Ibn Hishàm mentions anything about the property being a
ßadaqa/˙ubs/waqf.
The Islamic tradition has historically not cited the lands of Sahl
and Suhayl in its discussions of the first Prophetic waqf, in spite of
their apparent significance to the legitimation of this institution.273
Instead, Farooqi’s analysis should probably be considered a legacy
of the awà"il genre itself. Just as the Islamic tradition was able to
sift through its collective memory to isolate events where the Prophet
might have designated the first waqf, modern historians continue to
participate in this discourse by devising their own chronologies and
mining the Islamic tradition for earlier evidence of Prophetic waqfs.
Although the historicity of these endeavors is suspect, the work of
Amìn and Farooqi is indicative of the way in which the Islamic tra-
dition can be re-fashioned to provide an increasingly Prophetic milieu
for the waqf. And even if the three legs of the triangular matrix
exhibit incongruities when juxtaposed with one another, the collec-
tive effect of this matrix is to wrap the waqf within a shroud of
Prophetic speech (the maxims), Prophetic approval ('Umar’s ßadaqa
deed), and ultimately, Prophetic action (the Prophet’s waqfs). And it
is the construction of this Prophetic milieu which has been central
to the cultural and hermeneutical legitimation of the waqf.
273
See, e.g., the nineteenth-century commentator al-Shawkànì (d. 1255/1839). In
his Nayl al-Aw†àr, al-Shawkànì cites a tradition that the first ßadaqa mawqùfa in Islam
consisted of the properties that Mukhayrìq gave to the Prophet in the year 3/625.
Nowhere does al-Shawkànì allude to the mosques of Quba or Madìna. Al-Shawkànì,
Nayl al-Aw†àr, 5: 26.
179
the conclusions presented here is not only unfair, but wholly anachro-
nistic. The Muslim community has never subjected its ˙adìths to the
kind of modern isnàd analysis conducted in this chapter. For the
most part, the vast majority of the ˙adìths discussed in this chapter
were considered sound on the basis of Islamic isnàd criticism, and it
would have been more than surprising if the ˙adìth critics had chal-
lenged these conclusions.
In addition to the soundness of the isnàds, other reasons for the
widespread acceptance of these traditions have already been dis-
cussed. 'Umar’s prominent role in Khaybar made his presence in
the ˙adìths not only reasonable, but expected. Likewise, the trans-
mission of this knowledge on the authority of Ibn 'Umar and his
mawlà, Nàfi', was consistent with the preservation of this historical
moment. Not only was Ibn 'Umar the son of 'Umar b. al-Kha††àb,
but the Ibn 'Umar—Nàfi' links in the isnàd chain were among the
most notable authorities for events at Khaybar. As for the ßadaqa
deed of 'Umar, its incorporation of standard literary forms for Islamic
documents also would have contributed to the enhancement of its
“authenticity.”
The means by which the waqf traditions conformed to the expec-
tations of third-century Muslims is a matter that deserves further
consideration. In pursuing the authenticity question, modern histo-
rians have generally neglected the manner in which “inauthentic”
traditions established their legitimacy. While modern historians do
not have to accept the contours of this Islamic authentication process,
understanding how this process functions illuminates the means by
which third-century Muslims established links to an increasingly dis-
tant past, and how these links legitimated legal doctrines and insti-
tutions, including the waqf.
It is important to remember that by the time Hilàl and al-Khaßßàf
wrote their waqf treatises most Muslims were probably aware that
the present in which they lived was only a dim reflection of the past
from which the Muslim community had emerged. Most people, no
doubt, were conscious of the fact that several of the cities in which
they resided—Baghdàd, Kùfa, and Baßra—had not even existed dur-
ing the Prophet’s lifetime. And yet, while the topography of the past
may have seemed vague and indeterminable, authenticating discourses
within the Islamic tradition served to reassure the Muslim commu-
nity that they had not lost their connection to it.
181
274
Wansbrough, Sectarian Milieu, 85.
275
Wansbrough, Sectarian Milieu, 39. Wansbrough makes this distinction in a dis-
cussion of the Islamic tradition’s use of dialogue: “Authenticity can be as much a
result of (successful) narrative technique as of veracity. The extensive use of dia-
logue in the sìra-maghàzì literature, and the frequent occurrences there of situations
familiar from (modern) observation of bedouin life, may certainly provide ‘authen-
ticity’ but not necessarily ‘historicity.’”
182
276
The existence of these repetitive literary phrases has been well-documented
in the work of Albrecht Noth. See Noth, The Early Arabic Historical Tradition, 109–218.
277
The quasi-mythical construction of 'Umar’s image/persona has been the sub-
ject of several articles. See, e.g., Heribert Busse, “'Omar’s Image as the Conqueror
of Jerusalem,” JSAI 8 (1986), 149–68; Suliman Bashear, “The Title ‘Fàrùq’ and its
Association with 'Umar I,” Studia Islamica 72 (1990), 47–70; Hava Lazarus-Yafeh,
“'Umar b. al-Kha††àb—Paul of Islam?” in Some Religious Aspects of Islam (Leiden:
E. J. Brill, 1981).
278
Al-Shàfi'ì, Kitàb al-Umm, 4: 52.
279
Al-ˇabarì, Ta"rìkh, 3: 53.
280
Al-ˇabarì, Ta"rìkh, 2: 609. This citation refers to a conversation between the
Prophet and 'Umar in which the Prophet points out that had he followed 'Umar’s
advice and killed 'Abd Allàh b. Ubayy b. Salùl, then this man would not have
been around to kill his father at a later point in time. Seeing the error of his ways,
'Umar responds: “By God, now I understand that what the Messenger of God
ordered had more merit in it than what I would have ordered.”
281
Al-Wàqidì, Kitàb al-Maghàzì, 2: 616, 3: 1057; al-ˇabarì, Ta"rìkh, 2: 465, 476,
183
'Umar, but nonetheless, its presence in the ˙adìths would have con-
tributed to a sense of authenticity. The cumulative effect of these
literary tropes, combined with 'Umar’s prominent role in the events
at Khaybar, lends a measure of credibility to the picture portrayed
in the ˙adìth narratives because nothing 'Umar does in these tradi-
tions is inconsistent with his previous patterns of behavior.
Another literary trope in the waqf traditions concerns the role of
the Prophet as law-giver. In the history of the early Muslim commun-
ity, the Prophet is frequently described as dispensing non-canonical
law, such as on the occasion of the Farewell Pilgrimage, or in this
˙adìth regarding the affiliation of paternity:
'Abd al-Razzàq—Ibn Jurayj—'Amr b. Shu'ayb. He said: There was
an oath in the Jàhiliyya which was used with regard to homicide cases
and with regard to a man on whose bed someone was born, but
another man claims [ yudda'ì] the child. Consequently, fifty oaths were
laid upon him, as in the oath which was used in homicide cases. And
that was their custom. Then, when the Prophet was on the pilgrim-
age, al-'Abbàs b. 'Abd al-Mu††alib said to him: “Verily, so and so is
my son, and we [my tribespeople] are willing to take oaths for him.”
But the Prophet said: “No, the child belongs to the owner of the bed,
and the fornicator gets the stone” (al-walad li"l-firàshi wa-li"l-'àhiri al-
˙ajar).282
As discussed previously, few of these maxims can be considered his-
torically authentic Prophetic speech, and many of them appear to
have acquired their Prophetic context only in the second century
A.H. Nevertheless, the trope of the Prophet as law-giver is so per-
vasive within the Islamic tradition that the inauthenticity of the events
described is often difficult to accept.
There are also exegetical and parabolic links which serve to “authen-
ticate” the waqf sources. Although the term waqf is not found in the
Qur"àn, some Muslim commentators have claimed that the creation
of pious endowments is endorsed or sanctioned by the Qur"àn’s
injunctions to give alms (ßadaqa).283 In some cases this link between
3: 73. 'Umar is also reported to have uttered the invocation “Oh, Prophet of God”
( yà nabì Allàh). Al-ˇabarì, Ta"rìkh, 2: 473.
282
'Abd al-Razzàq al-Ían'ànì, Mußannaf (Beirut: Maktabat al-Islàm), 3: 321, no.
5800. The complicated history surrounding the al-walad li"l-firàsh maxim is discussed
by Uri Rubin in “‘Al-Walad li"-l-firàsh’ on the Islamic Campaign Against «Zinà»,”
5–26.
283
Othman, “Origin of the Institution of Waqf,” 3.
184
284
Qur"àn 9.60.
285
Qur"àn 19.40.
286
Al-Khaßßàf, A˙kàm al-Awqàf, 14–15.
287
Al-Shàfi'ì, Kitàb al-Umm, 4: 59.
288
Hilàl al-Ra"y, A˙kàm al-Waqf, 8.
289
Sharon, “Waqf inscription from Ramla, c. 300/912–13,” 100.
290
Sharon, “A Waqf inscription from Ramlah,” 77–78, 81.
291
Qur"àn 3.180, 21.89, and 57.10. Qur"àn 3.180 states that “It is God who will
inherit the heavens and the earth,” while Qur"àn 57.10 states that “God alone will
inherit the heavens and the earth.” Qur"àn 21.89 states that God is the “best of
heirs.”
292
Wansbrough, Sectarian Milieu, 2, 5, 139.
293
Wansbrough, Qur "ànic Studies, 47.
294
Wansbrough, Sectarian Milieu, 71.
185
295
Calder, Studies, 193.
296
Wansbrough, Sectarian Milieu, 143.
186
law of the waqf treatises and the parallel hermeneutical tradition ana-
lyzed in chapter four represent several decades—if not generations—
of legal thinking on the question of pious endowments: the relationship
of the institution to the doctrines of charity and inheritance, and the
exegetical derivation of the institution’s legitimacy from an increas-
ingly distant, albeit increasingly more authoritative, past. The fact
that the waqf was dependent on, and subordinate to, the doctrines
of intestacy, testacy and death-sickness also indicates that the waqf
developed subsequent to these other doctrines; perhaps in response
to the restrictions placed on testamentary dispositions.
As the lives of Hilàl and al-Khaßßàf illustrate, the waqf treatises
emerged during a prodigious period in the development of substan-
tive law—al-Khaßßàf alone is credited with writing fourteen legal
treatises. This increased production in legal treatises in the third cen-
tury indicates that while Islamic law had developed to the point
where it was possible to articulate entire branches of law, there was
still enough disorder and variation in the law to necessitate treatise-
writing. Whether the numerous hypothetical questions in the trea-
tises represent areas of actual legal confusion is probably unanswerable.
There is some reason to believe that many of these hypotheticals
may have been manufactured in order to explicate a specific legal
principle. Nevertheless, it is also true that the treatises addressed
areas of law where confusion must have been common, such as when
certain types of waqfs, such as those made during death-sickness for
heirs and non-heirs, intersected with the established doctrines of intes-
tacy and testacy. The development of the waqf equation and use of
the signifier “waqf ” brought internal terminological order to this area
of law as well as distinguished these types of trusts from other forms
of charity and gifts.
The extent to which the substantive law of the waqf treatises
affected or shaped actual trust formation during this era remains an
open question. There is some limited evidence indicating that the
term “waqf,” or its verbal forms, became more common in the decades
after the deaths of Hilàl and al-Khaßßàf, perhaps reflecting the ter-
minology developed in the treatises. Additional studies may reveal
whether Óanafì legal culture maintained, modified or abandoned the
definitional efforts of Hilàl and al-Khaßßàf. The treatises almost cer-
tainly had an impact on how qà∂ìs adjudicated disputes concerning
waqfs. Judging ultimately requires that answers be given to litigants.
Although some disputes can be resolved through compromise, other
189
1 Introduction
17 Chapter pertaining to the man who makes his house (dàr) a
mosque, or a khàn, (or a cemetery), or something else.
19 Chapter pertaining to the man who makes land a waqf for the
poor, but does not stipulate repairs.
22 Chapter pertaining to the man who makes a house (dàr) a waqf—
on the condition that he may reside in it—in favor of a specified,
named group, but does not stipulate who is responsible for its
repairs and does not specify the [financial] source for the repairs.
28 Chapter pertaining to the man who makes land a waqf for a
man, but does not specify what [revenues] will/should be used
to maintain it [= the land].
30 Chapter pertaining to the man who makes land or an estate
(dàr)2 a waqf for specified people; and the buildings of the estate
and the date-palm trees fall down, [and] repairs relating to this.
34 Chapter pertaining to the man who makes land a waqf “for his
children” and does not add anything to this.
(37 Chapter pertaining to the man who makes land a waqf “for his
children” and does not add anything.)3
43 Chapter pertaining to the man who makes land a waqf “for his
children” and other children are born before or after the emer-
gence of the yields.
46 Chapter pertaining to the man who makes a waqf “for his chil-
dren and his descendants.” How are the yields divided among
them?
1
Hilàl al-Ra"y, A˙kàm al-Waqf (Madìna: Ma†ba'at Majlis Dà"irat al-Ma'àrif al-
'Uthmàniyya, 1355/1937).
2
In this context, the term “dàr” seems to be referring to something larger than
a single residence.
3
This chapter may not be a part of the original treatise. It is not listed in the
Ràmfùriyya version of the treatise and repeats the previous chapter heading.
192
309 Chapter pertaining to the man who says, “My land is a ßadaqa
mawqùfa (for the Banù so-and-so), on the condition that I retain
the right to give preference to some over others.”
341 Epilogue of the book.
342 Biography of the author.
APPENDIX B
0 Introduction
1 What was transmitted regarding the ßadaqàt of the Prophet, may
God bless him and grant him salvation.
5 What was transmitted regarding the ßadaqa of Abù Bakr, may
God be pleased with him.
5 What was transmitted regarding the ßadaqa of 'Umar b. al-
Kha††àb, may God be pleased with him.
9 What was transmitted regarding the ßadaqa of 'Uthmàn b. 'Affàn,
may God be pleased with him.
9 What was transmitted regarding the ßadaqa of 'Alì b. Abì ˇàlib,
may God be pleased with him.
11 What was transmitted regarding the ßadaqa of al-Zubayr, may
God be pleased with him.
11 What was transmitted regarding the ßadaqa of Mu'àdh b. Jabal,
may God be pleased with him.
12 What was transmitted regarding the ßadaqa of Zayd b. Thàbit,
may God be pleased with him.
13 What was transmitted regarding the ßadaqa of 'À"isha, may God
be pleased with her.
13 What was transmitted regarding the ßadaqa of Asmà" bt. Abì
Bakr, may God be pleased with both of them.
13 What was transmitted regarding the ßadaqa of Umm Salama,
wife of the Prophet, may God bless him and grant him salvation.
13 What was transmitted regarding the ßadaqa of Umm Óabìba,
wife of the Prophet, may God bless him and grant him salvation.
14 What was transmitted regarding the ßadaqa of Íafiyya bt. Óuyayy,
wife of the Prophet, may God bless him and grant him salvation.
1
Al-Khaßßàf, A˙kàm al-Awqàf (Cairo: Maktabat al-Thaqàfa Dìniyya, 1322/1904).
196
2
The fourteenth-century C.E. manuscript copy from the British Library does not
include the word “mawqùfa” in its table of contents.
3
The phrase “and what is included in this” is not included in the table of con-
tents to the fourteenth-century C.E. manuscript copy from the British Library.
4
This chapter is not listed in the table of contents to the “1904 Cairo” version
of the A˙kàm al-Awqàf of al-Khaßßàf, but is present in the table of contents to the
fourteenth-century C.E. manuscript copy from the British Library.
5
This chapter is not listed in the table of contents to the “1904 Cairo” version
of the A˙kàm al-Awqàf of al-Khaßßàf, but is present in the table of contents to the
fourteenth-century C.E. manuscript copy from the British Library.
6
This chapter is not included in the table of contents to the fourteenth-century
C.E. manuscript copy from the British Library.
198
121 Chapter pertaining to the man who makes land a waqf for the
umm walads of a man, or the man’s slaves (mudabbaràt and
mamàlìk), and that which pertains to this.
125 Chapter pertaining to the waqf which is not permitted.
131 Chapter pertaining to the man who makes land or a house
belonging to him a waqf for the repairs of a specific mosque
or a specific water fountain, and that which pertains to this.
134 Chapter pertaining to old waqfs.
136 Chapter pertaining to the man who makes land a waqf “for
his children,” but he has no children.
138 Chapter pertaining to the man who makes land a waqf for two
men, and one of them is dead; or one of them accepts this
and the other does not.
141 Chapter pertaining to the man who makes land a waqf for two
men, and he designates to each one a part of its yields.
145 Chapter pertaining to a waqf “for the heirs of so-and-so.”
148 Chapter pertaining to the man who makes land a waqf “for
specific people, on the condition that some are preferred over
others.”
149 Chapter pertaining to the man who makes land a waqf “for
himself and then, after [his death], it is for the destitute.
152 Chapter pertaining to the man who makes land a waqf, and
[the land] contains slaves (raqìq) or cows which work on it; or
he makes slaves a waqf without the land.
153 Chapter pertaining to the man who makes land a waqf for
people, and some of them accept this and others do not; or
none of them accept this.
154 Chapter pertaining to the man who makes land a waqf on the
condition that he is entitled to sell it.
160 Chapter pertaining to the beneficiary of a waqf (al-rajul al-
mawqùf 'alayhi ) who acknowledges that the waqf is for him and
another man.
164 Chapter pertaining to the man who makes land a waqf “for kin
relations according to priority of relationship [to the founder].”
168 Chapter pertaining to the man who makes land a waqf “for
kin relations.”
171 Chapter pertaining to the man who makes a house a waqf for
people who live in it or receive the proceeds from it.
173 Chapter pertaining to the man who makes land a waqf “for his
kin relations, on the condition that [the distribution of the yields]
199
7
This chapter is not included in the table of contents to the fourteenth-century
C.E. manuscript copy from the British Library.
8
This chapter is not included in the table of contents to the fourteenth-century
C.E. manuscript copy from the British Library.
201
293 Chapter pertaining to the man who gives land to a man, and
the recipient makes it a waqf prior to taking possession.9
293 Chapter pertaining to the minor/interdicted person who makes
land belonging to him a waqf.
294 Chapter pertaining to the man who bequeaths land to a man,
and the legatee makes the land a waqf before the death of the
testator.
294 Chapter pertaining to waqf “for ‘the gates of charity.’”
295 Chapter pertaining to the man who makes land a waqf “for
the poor, the destitute, his poor kin relations, and others.”
301 Chapter pertaining to the man who makes land a waqf “for
so-and-so,” or “for so-and-so,” or he says ‘[the recipient must]
go on the pilgrimage on my behalf ” or “engage in raids/bat-
tles on my behalf.”
309 Chapter pertaining to the man who makes land a waqf for
people, on the condition that if his kin relations have need of
this, then the yields of the waqf are returned to them. Some
of them came to be in need, but not all of them.
315 Chapter pertaining to the man who purchases land whose sale
was defective/voidable ( fàsid an ), and then makes it a waqf.
319 Chapter pertaining to a waqf [made for] estates located on
frontiers, or for some plots of land there [= on the frontier],
or [for] estates in Mecca and a khàn intended for passers-by
to live in.
322 Chapter pertaining to the man who makes land a waqf for the
righteous among his poor relations, or he says for the “people
of righteousness (ahl al-'afàf )” from among his poor relations.
323 Chapter pertaining to a waqf for orphans, widowers, widows,
unmarried women, and virgins.
“Chapter 75” Chapter pertaining to the man who illegally
seizes a country estate (∂ay'a) from a man and then makes it
a waqf, and that which relates to this: gift, illegal usurpation,
and other things.10
9
This chapter is not included in the table of contents to the fourteenth-century
C.E. manuscript copy from the British Library.
10
This chapter is not listed in the table of contents to the “1904 Cairo” version
of the A˙kàm al-Awqàf of al-Khaßßàf, but is present in the table of contents to the
fourteenth-century C.E. manuscript copy from the British Library.
202
11
This last phrase, “may God destroy them” is found only in the table of con-
tents to the fourteenth-century C.E. manuscript copy from the British Library.
APPENDIX C
1
Al-Shàfi'ì, Kitàb al-Umm, ed. Mu˙ammad Zuhrì al-Najjàr (Cairo: Maktabat al-
Kulliyyàt al-Azhariyya, 1961) 4: 59–61.
204
majors, with full rights to reside in the estate and to its yields. None
of them takes precedence over any other so long as my daughters
do not marry. But if any one of [my daughters] marries and spends
the night with her husband, then her rights are severed so long as
she remains with her husband. Her entitlement passes to the remain-
ing beneficiaries of my ßadaqa—they continue to have full rights so
long as she is with her husband. If she returns because of the death
of her husband or divorce, then her rights in the matter of the estate
are just as they were prior to her marriage. Every time one of my
daughters marries, she becomes subject to this provision—she is
excluded from my ßadaqa by marrying and her rights return through
the divorce or the death of her spouse. None of my daughters is
excluded [from the ßadaqa] except by marriage.
The rights of those who die from among my offspring—both males
and females—revert to the remainder of my offspring. If my offspring
die out, and there does not remain a single one of them, then this
ßadaqa is sequestered (˙ubs an) for the children of my male children;
the children of my daughters receive nothing. Then this ßadaqa is for
the children of my sons—both male and female—in the same man-
ner as it had been for my offspring. The males and females are enti-
tled to an equal share, but a woman is excluded from my ßadaqa by
marriage, [although she] returns to [it] through the death of [her]
husband or divorce. Everyone who comes into existence from among
my offspring—both grandsons [lit. males] and granddaughters [lit.
females]—is included in my ßadaqa with my existing grandchildren.
Each one who dies from among them, his entitlement reverts to the
remainder of them, until there does not remain a single grandchild.
If there does not remain a single grandchild from among my offspring,
then this ßadaqa follows the conditions for the children of my male
grandchildren who are linked to me through their kinship. The
women are excluded by their marriage and return to [the ßadaqa]
by the husband’s death or divorce.
Included, in perpetuity, are those who come into existence from
my grandchildren, but the generation of those who have a link to
my grandchildren is not included at the expense of the most distant
generation from me, so long as one person from this generation is
alive.2 And none of the children of my daughters are included, unless
2
At this point, the founder no longer draws a distinction between generations—
everyone who exists gets a share.
205
3
I.e., the principle of including only agnatic descendants in the endowment is
maintained.
206
Beneficiaries
1
“Àbà"” literally means “fathers,” but can also mean “ancestors.” Lane, Arabic-
English Lexicon, 1: 10.
2
Al-Khaßßàf, A˙kàm al-Awqàf, 38.
3
Al-Khaßßàf, A˙kàm al-Awqàf, 38.
4
Hilàl al-Ra"y, A˙kàm al-Waqf, 186.
5
Hilàl al-Ra"y, A˙kàm al-Waqf, 187.
6
Hilàl al-Ra"y, A˙kàm al-Waqf, 187.
7
Hilàl al-Ra"y, A˙kàm al-Waqf, 187.
8
Al-Khaßßàf, A˙kàm al-Awqàf, 115.
209
9
Hilàl al-Ra"y, A˙kàm al-Waqf, 188–89.
10
Hilàl al-Ra"y, A˙kàm al-Waqf, 189.
11
Hilàl al-Ra"y, A˙kàm al-Waqf, 198–99; al-Khaßßàf, A˙kàm al-Awqàf, 182. Al-
Khaßßàf also cites Zufar b. al-Hudhayl who reiterated Abù Óanìfa’s assertion that
a neighbor is someone who lives on the borders of the founder’s estate.
12
Hilàl al-Ra"y, A˙kàm al-Waqf, 198–99; al-Khaßßàf, A˙kàm al-Awqàf, 182. In the
A˙kàm al-Awqàf of al-Khaßßàf, this definition is attributed to Abù Yùsuf.
13
Hilàl al-Ra"y, A˙kàm al-Waqf, 199.
14
Hilàl al-Ra"y, A˙kàm al-Waqf, 309–10.
15
Hilàl al-Ra"y, A˙kàm al-Waqf, 310.
16
Al-Khaßßàf, A˙kàm al-Awqàf, 238.
210
In the waqf treatises, Hilàl and al-Khaßßàf also explore how certain
phrasings and small semantic differences can alter significantly the
manner in which the yields of a waqf are disbursed. Hilàl observes
that the inclusion of the clause “for the poor” ('alà al-fuqarà") imposes
a 200 dirham limit on the amount of yields any one person can
receive. As a result, a waqf established “for my nearest kin, in order
of priority of relationship” and then for those next closest in rela-
tion” ('alà qaràbatì al-aqrab17 fa"l-aqrab) is treated quite differently from
a waqf established “for my poor kin, in order of priority of relation-
ship” ('alà fuqarà" qaràbatì al-aqrab fa"l-aqrab):
He said: [ I]f the waqf is for the poor ('alà al-fuqarà") I do not exceed
the amount of 200 dirhams for the nearest [kin relation] until the
remaining [poor kin relations] receive a share similar to this. And I
would conclude [disbursement of the yields] according to the amount[s]
that the founder had specified. But if he had specified the rich and
the poor among them [i.e., he did not say 'alà al-fuqarà"], and did not
intend that the ßadaqa was for the poor [exclusively], I would begin
with the [kin] nearest in relation to him. And I would give him all of
the yields because the founder neither mentioned the poor nor the
rich; he only wanted the person nearest in relation to him.18
Similarly, Hilàl notes how this same phrase, “'alà al-fuqarà",” makes
a founder’s minor children ineligible to take from the yields of a
waqf because they are considered to be in a relationship of depen-
dence with their father.19 If the founder is rich enough to create a
waqf, then his children cannot be considered “poor” since their
financial status is inseparable from that of their father-founder. Hilàl
applies the same principle to the wife of the founder and any of his
17
Al-Khaßßàf ’s treatise contains a section defining who is nearest (aqrab) in rela-
tion to the founder among various sets of kin relations. See al-Khaßßàf, A˙kàm al-
Awqàf, 52–56.
18
Hilàl al-Ra"y, A˙kàm al-Waqf, 225. It is possible that this last sentence is an
editing error and actually constitutes a qultu/qàla exchange, which I reconstruct as
follows:
I said: But if he had specified the rich and the poor among them, and did
not intend that the ßadaqa was for the poor [exclusively]?
He said: I would begin with the [kin] nearest in relation to him. And I would
give him all of the yields because the founder neither mentioned the poor
nor the rich; he only wanted the person nearest in relation to him.
19
Hilàl al-Ra"y, A˙kàm al-Waqf, 229–30.
211
Grammatical Distinctions
20
Hilàl al-Ra"y, A˙kàm al-Waqf, 229–31.
21
Hilàl al-Ra"y, A˙kàm al-Waqf, 254.
22
Al-Khaßßàf ’s treatise also contains several sections which focus on this singu-
lar/plural distinction (see pages 48, 51, 116, 147). In the following qultu/qàla dia-
logue, the same distinction between singular and plural forms is drawn in regard
to the word walad, and its plural, awlàd:
I said: And what is your opinion of a man who says, “This land of mine is
a ßadaqa mawqùfa for God the Exalted in perpetuity for any child (walad,
sing.) of Zayd, and after him it is for the destitute”?
He said: The waqf is permitted and the child (walad, sing.) of Zayd is entitled
to the yields. . . . And as long as it is the case that there remains among
[Zayd’s children] one child, then he or she is entitled to all of its yields.
And if he dies then its yields are for the destitute (i.e., the remainder
interest).
212
He said: Because he said “poor ( fuqarà", pl.) of the family (àl ) of so-
and-so,” and there is only one poor person. So he is entitled to
one-half of the yields.
I said: And why do you say this?
He said: Because he said “poor” ( fuqarà", pl.) and saying this implies
not less than two people.23 I would give the one [poor person]
one-half because if there is one, he [does not meet the numeri-
cal requirements expressed by the term] “poor” ( fuqarà", pl.).24
So, therefore, I give him one-half.
I said: And, in your opinion, this does not resemble the previous ex-
ample?
He said: In my opinion, it does not resemble it because he said in
the first example, “those who are among the poor ( faqìr, sing.)”
and this means it is for one or more of these people.25
Both waqf treatises also consider the relationship between pronomi-
nal suffixes (hu, humà, hum) and ordering in a waqf deed. In the fol-
lowing passage, al-Khaßßàf discusses a waqf that has been designated
for the three stock figures, Zayd, 'Amr and 'Abd Allàh, and how
the ordering of these three figures impacts the meaning of the pronom-
inal suffix construction “his/their children” in its singular, dual, and
plural forms:
I said: And if he said “for Zayd, 'Amr and 'Abd Allàh”?
He said: The yields are (divided) among them in thirds.
I said: And if he had said “the children (awlàd, pl.) of Zayd” and some of
them died?
He said: If there remains amongst them two [children] then they are entitled
to the yields collectively and their share is abolished through death. But
if there remains amongst them only one [child], then he is entitled to
one-half the yields, and the other half is for the destitute because it is
less than that which is signified by the word “awlàd,” namely, two or
more children. . . .
Al-Khaßßàf, A˙kàm al-Awqàf, 147.
23
Both treatises confusingly conclude that the plural form of a word implies two
or more people. The Arabic language possesses a dual form, however, which should
mean that a plural form refers to three or more people, not two or more.
24
I.e., the plural form of the word “poor” ( fuqarà") refers to a minimum of two
people.
25
Hilàl al-Ra"y, A˙kàm al-Waqf, 65. In a later section in the A˙kàm al-Waqf (pages
283–84), Hilàl discusses a waqf that is dedicated to several charitable purposes: the
poor (al-fuqarà"), the destitute (al-masàkìn), debtors (al-gharà"im), the Holy War ( fì sabìl
Allàh), slaves (al-riqàb), and travelers (ibn al-sabìl ). Hilàl proposes that the waqf should
be divided into shares. However, dividing the waqf in this manner creates imme-
diate problems. Hilàl notes that some jurists have held that each charitable pur-
pose should receive a single share, while others have argued that the plural forms
of “debtors,” “slaves” and “the destitute” entitle these categories to two shares.
213
I said: And if he said “for Zayd, 'Amr, 'Abd Allàh and his [singular-
form] children (wuldihi )”?
He said: Then Zayd, 'Amr, 'Abd Allàh and the children of 'Abd Allàh
are entitled to the yields exclusively.
I said: And if he said “for Zayd, 'Amr, 'Abd Allàh and their [dual-
form] children (wuldihumà)”?
He said: Then Zayd, 'Amr, 'Abd Allàh, the children of 'Abd Allàh
and the children of 'Amr are entitled to the yields. And the chil-
dren of Zayd are entitled to nothing.
I said: And likewise, if he said “his [singular-form] descendants (nasluhi )
or their [dual-form] descendants (nasluhumà)”?
He said: The understanding in this matter is the same (wà˙id ). If he
put the singular-form “the child” or “the descendant” in an i∂àfa
construction, then this refers to the last child or descendant [in
the list]. But if two are put into this construction, then this refers
to the last child or descendant [in the list] and the child adja-
cent to him. And the first child is entitled to nothing. But if the
children and descendants are referred to collectively, or [the
founder] says “their [plural-form] children (awlàdihim)” or “their
[plural-form] descendants (naslihim),” then their children and descen-
dants are included collectively in the yields of this waqf.26
26
Al-Khaßßàf, A˙kàm al-Awqàf, 137. An almost identical dialogue can be found
in Hilàl al-Ra"y, A˙kàm al-Waqf, 55–56.
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232
In classifying entries no account is taken of the letter ayn and the Arabic definite
article al-
'Abd Allàh b. 'Abd al-Óakam. See Ibn A˙kàm al-Waqf. See Waqf Treatises
'Abd al-Óakam A˙mad b. Abì Bakr, 146
'Abd Allàh b. al-Arqam, 159–60 A˙mad b. Óanbal, 10, 128, 135, 141,
'Abd Allàh b. 'Awn. See Ibn 'Awn 149, 155
'Abd Allàh b. 'Umar. See Ibn 'Umar À"isha, 28, 195
'Abd Allàh b. 'Umar b. Óafß al- 'Alì b. Abì ˇàlib, 6, 27, 74, 84, 108,
'Umarì, 132, 134–36, 147, 149 113, 151, 174, 195, 209
'Abd al-'Azìz b. al-Mu††alib, 144, Amìn, Mu˙ammad M., 175, 177–78
146–47 Arjomand, Said Amir, 60
'Abd al-Óamìd, 159 Asmà" bt. Abì Bakr, 28, 195
'Abd al-Ra˙màn b. Yùnis, 138 aßl, 36
Abù Bakr Ya'qùb b. Ibràhìm al- Authenticating Discourses
Bazzàz, 138 ˙adìths, 181
Abù Óanìfa exegetical links, 183–84
as qàla figure, 22 isnàds, 180, 182
authority for definition of “neighbor”, literary conventions, 180, 182
209 parabolic links, 184
authority for poverty limit, 17, 47 pericopes, 184–85
debates concerning status as founder tropes, 182–83
of school, 1–2, 13 'Umar, 182–83
ikhtilàf, 26–27, 32, 47, 72 Prophet as law-giver, 183
on waqf terminology, 71–72, 78, 80 awà"il, 170–71, 175
opposition to waqf, xix, 72, 113, 'awl, 104
153–54 Ayyùb b. Abì Tamìma al-Sakhtiyànì,
past authority, 2, 12–14, 30–32, 71, 156
80, 189
use of qiyàs, 37 Bakkàr b. Qutayba, 3–4
Abù Khàlid Yùsuf b. Khàlid, 47, 80, Balàdhurì, A˙mad b. Ya˙yà, 118, 170,
88–89 174
Abù Khàzim, 3–4 Banù Óàritha, 155–57, 166–68
Abù Yùsuf Banù al-Na∂ìr, 120, 172–76
authority for events at Khaybar, 118 Banù Tha'laba b. al-Fi†yùn, 173–75
ikhtilàf, 26, 32, 72 Barnes, John Robert, 65
intersection of life with Hilàl, 3 Bayhaqì, Abù Bakr A˙mad b. al-
on waqf terminology, 78 Óusayn b. 'Alì, 89, 110, 141, 150,
past authority, 2, 12–14, 30, 32, 189 164
pursuit of judicial/political Bazdawì, 13, 41
appointments, 10 Bishr b. Ma†ar, 138–39
reversed opposition to waqf after Bishr b. al-Mufa∂∂al, 124, 128–29
pilgrimage, 108 Brockopp, Jonathan E., xxi, xxiii, 2,
teacher of Hilàl, 3 9–10, 12, 14, 20–22, 29, 189–90
use of qiyàs, 37 Great Shaykh theory, xxi, 2, 12,
à˙àd ˙adìths, 122 189
A˙kàm al-Awqàf. See Waqf Treatises Brunschvig, Robert, 69
234
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