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Waqf in Central Asia
Four Hundred Years in the History of a Muslim Shrine, 1480â?"1889
By R. D. McChesney PRINCETON UNIVERSITY PRESS
Copyright © 1991 Princeton University Press
All rights reserved.
ISBN: 978-0-691-05584-8
CHAPTER 1
Introduction
"It is impossible to understand and to appreciate a juridical institution at all without having considered it beforehand in its natural milieu and without having pursued its historical evolution." So wrote Fuad Köprülü nearly half a century ago in the first article in the inaugural issue of the journal Vakiflar Dergisi. Anyone who has spent time studying the history of Islamdom has formed some idea of the institution of the Islamic endowment, or waqf (vaqf in the western Persian-speaking regions, vakif to a Turk, and hubus to a North African). No one would question its central importance in the social and economic history of the Islamicate regions, particularly in the twelfth to nineteenth centuries, and most scholars consider it the single most important institution for the provision of community social services in Islamdom. Whether supporting education; financing public buildings and facilities; providing welfare for the poor, the indigent, and travelers; feeding birds and stray cats and dogs; or supplying communal tools and utensils, waqf has been thoroughly woven into the fabric of daily life and its ubiquitousness established by the breadth and depth of the historical record.
But despite the literature about waqf, Köprülü's challenge to consider it in its own context both temporally and geographically has remained largely unanswered. In 1942 he noted that despite the tremendous volume of studies then available on waqf it was still little understood as a historical phenomenon. As late as 1965, Claude Cahen wrote "... no work as yet has dealt with the history, let alone the economic history, of the waqf...." Köprülü argued for the study of waqf from the perspective of social history and suggested an approach that would embrace the entire Islamicate world. But since those words appeared in print, research and writing on waqf have been affected by the general gravitation of historical scholarship toward economic and social issues to such a point that the methodological problems that such a study would involve would render it unworkable, at least for the time being. The amount of literature available is now so massive and, more importantly, reveals such a wide range of as yet unresolved problems as to make a comparative study of the type envisioned by Köprülü impractical. In such a study, the author would have to make sense not only of the political and social histories of Islamdom from Indonesia to Mauritania but also of economic developments, including such complex and understudied topics as land tenure, market and nonmarket exchanges, agriculture (especially agronomy), and manufacturing. The essential and highly individualistic issue of terminology alone makes such a study almost inconceivable at this point. As only one example, terms for units of land may vary widely in one region over a period of a century and between regions contemporaneously. Until a complete understanding of the meaning of such terms is obtained, it is very difficult to make accurate comparative assessments of such issues as the changing proportion of different categories of landholding, the flow of land into and out of cultivation over time, and comparative crop yields, and, therefore, to assess changing economic conditions.
Certainly the direction of scholarship, guided by the same belief in the necessity of understanding the historical and "natural" milieu of waqf, has been away from the type of all-encompassing work proposed by Köprülü. Instead the focus has been on limited geographic areas or on single aspects of waqf. The value of the monographic treatment is in allowing the historian to consider the whole range of the transactions and interactions of waqf within a limited scope, either in time or in space, while maintaining some control over the material.
The subject of this book is the corpus of waqf administered on behalf of the shrine complex of Ali b. Abi Talib near Balkh. The conclusions drawn for the 'Alid shrine's waqf may prove useful to others in examining comparable cases. At the same time, it is my firm belief that the particular historical circumstances of Balkh and its surrounding region shaped the waqf institution in unique ways that could not be reproduced elsewhere. While it is hoped that the reader will find parallels elsewhere, the shrine and its waqf at Balkh should not necessarily be taken as a model for the evolution of waqf.
In the course of carrying out the research for this study, it became clear that the literature about the waqf at Balkh, as well as waqf in Central Asia generally, tended to fall into two broad categories: works of a theoretical and legal nature (generally those of Muslim legal scholarship) and descriptive and analytical works. There is no fine line that can be drawn between the two categories; they deal with the same subject and often overlap. And both have a marked tendency to regard waqf, whether generally or in a specific case, as a permanent and therefore static institution, an institution that once created remains largely unchanged. Many authors, whether legal thinkers attempting to formalize the principles of waqf or scholars concerned with waqf as a phenomenon in history, have found it difficult to correlate the idea of the inevitability of change with the legal concept of waqf's immutability.
Theoretical and Legal Works
Legal works include the fatwa collections, manuals of legal formularies (shurut), and monographs devoted to waqf. The legal school of interpretation for Central Asia in the period under discussion is that of Abu Hanifah al-Nu'man (d. 767), known as the Hanafi or Nu'mani school. The legal tradition on waqf comes down from Abu Hanifah through his two main interpreters, Abu Yusuf (d. 808) and al-Shaybani (d. 805) (the latter usually cited in the Hanafi texts by his given name, Muhammad). Through the citations found in such latter-day (late-seventeenth-century) Hanafi compilations as al-Fatawa al-'Alamgiriyah (FA); through the fiqh works which were commented upon, glossed, and super-glossed in sixteenth- and seventeenth-century Central Asia; through the works cited in manuals of legal formularies; or through biographical entries on legal scholars, in which the works they read and wrote are listed, it is possible to identify the authoritative legal works and thus the authoritative legal tradition on waqf in Balkh. Using FA as a representative summation of the works current in Central Asian and Hindustani Hanafi law at the end of the seventeenth century, we find nearly fifty different sources cited in the kitab al-waqf, the chapter on waqf. In addition, the opinions of another dozen or so individual authorities or groups of authorities, such as the "shaykhs of Bukhara" and "shaykhs of Balkh" (referring to the legal scholars of those two cities in the eleventh and twelfth centuries), are adduced from quotations in the works cited. The works used by FA fall more or less into six categories with one or two prominent subcategories:
1. Fatwa works, the authors of which select appropriate opinions from the authorities of their time and where applicable cite opposing points of view, in which case a recommendation for the mufti using the work is given.
2. A line of scholarship going back to al-Quduri's (d. 1037) Mukhtasar.
3. A line of scholarship going back to Husam al-Din 'Umar Ibn Mazah (d. 1141), author of al-Waqi'at al-Husamiyah.
4. A third line to al-Hidayah of Burhan al-Din 'Ali b. Abi Bakr al-Marghinani (d. 1197) within which line there is a major subcategory of commentaries stemming from Mahmud b. Ahmad b. 'Ubayd Allah al-Mahbubi, who flourished in the thirteenth century.
5. A fourth line from Hafiz al-Din Abu'l-Barakat 'Abd Allah b. Ahmad al-Nasafi's (d. 1310) Kanz al-daqa'iq and al-Kafi.
6. A group of miscellaneous furu' works, whose antecedents are a combination of all these lines.
Besides fiqh works, I also include in the category of legal materials the documents—waqf inscriptions, waqf deeds (waqfnamahs or waqfiyat), government decrees (farmans, manshurs, yarlighs, 'inayatnamahs)—directly related to waqf as well as such ancillary documents as sale/purchase agreements, lease agreements, and tenancy and development (hikr and sukna) covenants.
What nearly all these works have in common (with the exception of government documents confirming waqf conditions or attempting to correct abuses) is an a priori perspective, that is, they postulate what waqf should be, not necessarily what it became, and as such convey to the investigator an idealized, however indispensable, picture of waqf.
In its narrowly legal sense, waqf is the voluntary relinquishing of the right of disposal of a thing by its owner and the dedication of the usufruct of that thing to some charitable end, as a charitable gift (sadaqah). The word waqf refers to the act of transferring the thing to a permanent state of impoundment, but it has come to be widely used as well for the thing impounded (more properly mawquf pl. mawqufat, or sadaqah mawqufah, as the legal texts generally refer to it).15 The act of waqf is considered by Hanafi lawyers to be accomplished and the right of alienation relinquished (implicitly to God) either when a qadi (judge) probates the waqf deed or when the waqf donor, in the words of al-Nasafi in al-Kafi, "delivers what he has made waqf to the waqf administrator [mutawalli] then [as a legal procedure] alleges that the waqf is not binding and the qadi issues a decision that it is."
The practice of voluntarily alienating one's property for a purpose benefiting the community as a whole was ascribed to Islamdom's earliest history. Despite this, the surviving hadith texts show no unanimity on the admissibility of the practice. The ninth-century Hanafi tradition on the earliest waqf relates that Mukhayriq, who was killed thirty-two months after the Hijrah, willed all his wealth to the Prophet. The latter impounded it and made it a charitable gift. Al-Khassaf considered that act to constitute the first waqf. Others see the first waqf as 'Umar b. al-Khattab's (d. 644) dedication of land at Khaybar to a charitable purpose on the advice of the Prophet.
Among the eighth-century Hanafis, there was much difference of opinion, first on the admissibility of waqf and then on its irrevocability. Abu Hanifah held at first that, since the usufruct was a nonexistent thing and as it was not permissible to make a charitable gift of a nonexistent thing, then waqf was not permissible. Having later adopted the view that waqf was permissible, he then saw it as analogous to an interest-free loan and therefore revocable by the bestower, a point on which his disciples, Abu Yusuf and Muhammad al-Shaybani, overruled him, at least as they were interpreted by later lawyers.
Systematization of the regulations concerning waqf came in the ninth century in the works of Abu Bakr Ahmad b. 'Amr al-Khassaf (d. 875) and Hilal ibn Yahya ibn Muslim al-Basri (d. 859). These specialized works attempted to define every legal issue that might arise for a waqf and supply an authoritative answer. Much later, in the sixteenth century, Ibrahim b. Musa b. Abi Bakr b. al-shaykh 'Ali al-Tarabulusi (d. 1516) offered the texts of al-Khassaf and Hilal in an abridged form. By his own account, al-Tarabulusi merely restated the significant points (al-maqasid) made by al-Khassaf and added to these the additional things (al-zawa'id) to be found in al-Basri. It should be noted, however, that for the compilers of FA, al-Tarabulusi was treated as an authority alongside al-Khassaf and Hilal. Unlike his predecessors, al-Tarabulusi did not follow the usual responsa format (su'al/jawab, question/answer, or qala/qultu, he said/I said) but attempted to extract the principal precepts contained in the texts of al-Khassaf and Hilal and present them in a more coherent manner. These and other works (the vast majority of which were Central Asian or Khurasanian in origin) cited by the compilers of FA were known and available to administrators of the law in Balkh during the time covered in the present work.
A necessary question for the historian, however, is whether these works represented or portrayed actual situations and whether the legal concerns expressed were, in fact, actual issues at the time in which the work was compiled or written. For example, in Fatawa Qadi Khan, the author refers to a case involving a hostel (ribat) and uncultivated (mawat) land on the banks of the Oxus River. The question is posed thus:
A group rehabilitated mawat land on the Oxus. The sultan collected the 'ushr [tax] from them. Nearby was a ribat. The mutawalli [administrator] of the ribat came to the sultan and the sultan released the 'ushr to him. Does the mutawalli have the right to spend the money on the muezzin who gives the call to prayer at that ribat, that is, to help him out with food and clothing? And does the muezzin have the right to take that 'ushr which the sultan has provided? The jurist Abu Ja'far is reported to have said, "If the muezzin is in need then it is good for him. It is not incumbent on [the mutawalli] to spend that 'ushr on the ribat building [for repairs]. He may spend it on the needy but that is all...."
For the historian the question is: When the detail seems as concrete as this, fixing the example in a specific setting, can one assume that the example represents an actual case?
There is some evidence suggesting that one may indeed make such an assumption. The late Ol'ga D. Chekhovich of the Uzbek Academy of Sciences in Tashkent, who has published a considerable amount of documentary material pertinent to Central Asian economic issues, wrote an article not long before her death in which she examined a number of Central Asian manuals of legal formularies dating to the late Middle Ages. These manuals were written for court officials such as qadis and muftis as handbooks of specimen forms. In passing, they give examples of the changes in legal institutions that time and changing circumstances had wrought. Such information is often introduced by phrases like, "At the present time in Mawarannahr a certain circumstance exists that ..." or, alluding to political realities after summarizing the legal view on some aspect of taxation, "but the rulers of our day collect such and such a tax. ..." One qadi writing such a manual at the beginning of the sixteenth century clearly describes the then-novel system of commendation (that is, surrendering lands or other taxable property to someone who would guarantee the tax payments) and gives sample documents by which such a transaction might be legally executed.
Even if one remains skeptical that such cases were in fact a portrayal of what was really going on, one has to assume at least that the writers were dealing with issues of concern to them and their contemporaries.
Many of the issues surrounding waqf in a historical setting are not addressed in the legal materials. One of the most important developments in the history of waqf, the evolution of two distinct forms—the "public" waqf (waqf khayri) and the "family" waqf (waqf ahli or waqf dhurri)—is only covered inferentially. From a strictly legal standpoint the two forms of waqf are identical. Whether the object of a waqf endowment was an institution or a relative was of little concern legally. But for the historian of Muslim society, the two forms were usually of a different scale and often had dramatically different social and economic consequences. Public waqfs typically had as their first purpose support of a public institution—such as a fountain, a mosque, a hostel, a cemetery, a hospital, or a school—while private waqfs were established to aid the founder's kin and descendants. To be legally valid, such private waqfs had to establish an ultimate public purpose in the event of the extinction of the founder's line. In many cases, such as the Ahrarid waqfs of Samarqand and Tashkent, the foundation served both purposes simultaneously (what has become known as the "mixed" or mushtarak waqf), benefiting family members and supporting a public institution. Such waqf deeds might specify that family members would receive a certain percentage of the income either as foundation officials or as direct beneficiaries, while the remainder would be used to maintain a public institution.
(Continues...)
Excerpted from Waqf in Central Asia by R. D. McChesney. Copyright © 1991 Princeton University Press. Excerpted by permission of PRINCETON UNIVERSITY PRESS.
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