Waqf

In the Muslim world, the waqf (plural: auqâf ) is a donation made with perpetuity by a private individual with a work of public utility, pious or charitable. The good given in usufruct is consequently placed under sequestration and becomes inalienable.

If the Zakât (: alms) is obligatory for Moslem piles, the waqf , of which the possibility is obviously offered only to only having, is optional. It in any case proceeds of the same spirit of handing-over of the goods created to the Community of the believers and God. In all the cases, charitable obligation (Coran: v. 92, S. 3)

History

According to various traditions ( ahadith ), the Prophet himself, with Médine, would have encouraged his first disciples to carry out donations of this nature.

In the answer testifies which it made with the one his companions, Omar ibn Al-Khattâb, who questioned it to know how it was to use a ground which it had acquired, and if it had to be given in alms: the Prophet advised to him to immobilize the funds and to give in alms the product that it would withdraw some.

In fact, the practice of the donations waqf truly started to be spread only after the death of the Prophet and gradually spread. They could be gifts of grounds, even of great fields, gardens, but also of inn, caravanserai, stable, press, bath, furnace, shop, dwelling houses, etc

Legal status of the waqf

Juridically, the waqf constitutes a category with share between the ground of Kharâdj (: domanial property), and the property Milk (: deprived). The auqâf " are religious goods of mortmain, immobilized and struck of sequestration to the profit of the foundation created with a pious aim or of utility publique". The good or the whole of the goods waqf of an area or the same foundation, from its nature, is even equipped with the civil personality.

Made with perpetuity, and inalienable donation, the waqf remains however the property of the giver ( waqif ) during his life, and fictitiously after its death. The waqf can moreover be of differed use, i.e. to be affected with a charitable work to come , which is not far from constituting a condemnable innovation legal ( bid' has ), in other words a stratagem to turn the law… In all the cases, it is advised to constitute the donation in front of the qadi. The waqf must be managed by an administrator who must use the profits of the foundation in accordance with the wills of the givers. This administrator can be the qadi, the person whom it will have named for this purpose, even that will have indicated the giver. From a strict legal point of view, if the redistribution of the incomes is clearly established, the lawyers of the various schools do not agree however on the statute of the naked property. According to Abou Hanifa and the mâlékites, it continues to belong to the giver and to his heirs, but they cannot have which it. According to Ibn Hanbal, the property should be allocated to the recipient of the foundation. On their side, holding them of the school shâfi' ite, joined later by the hanéfites, consider that the property of the waqf , " sacralisée" by the donation which is made by it, belongs quite simply to God.

At the origin, the waqf applied only to the real estate values. A controversy then developed in connection with the movable property: did they form or not part of the donation? There were they attached juridically? The question was of importance, because it concerned the furniture running and professional, the tools, and even the slaves attached to the funds… Abou Hanifa did not think it, but its disciples did not follow it and were, except for some nuances, according to the local habits, in agreement with holding of the school malékite which ensured that the real estate values belonged to the waqf . It is the opinion which generally prevailed.

With the wire of the decades, centuries and practice, parallel to the waqf kayrî (or " public"), in conformity with the original intentions, one saw appearing the waqf ahlî (or " familial") : by allowing the designation of intermediate usufructuaries, this new waqf was, with the legal direction, a diversion of the gasoline even of the donation. Indeed, in traditional Moslem right, one can have freely only the third Net of all his goods. However, by creating a waqf and by having the legal possibility to indicate itself of it the first recipient (of which itself in the rite hanéfite), the giver could is to privilege one of his/her children (for example a boy compared to a girl, this one having however to be assured a kind of alimony with life if it is without resources), elder compared to a junior, or even to restore a balance between children, of which one could be favoured (long and expensive studies, installation of a trade, purchase of a ground, etc) He thus acted indeed of a skirting of the legislation as regards successions. The whole with the advantage of the absolute secrecy, since the foundation had known only after the death of the donee, thus avoiding any dispute of alive sound by the close relations concerned.

One will not be astonished, under these conditions, that the auqaf developed considerably in the Muslim world, even if adaptations were necessary to reconcile the use with the local or national habits of it, in particular during the expansion of the Ottoman Empire in XVe and XVIe centuries.

Importance of the waqf in the Muslim world

The waqfs took to a great width in everyone arabo-Moslem starting from Ve century of Hégire. They related to religious foundations (Mosquée S, Zâwiya S), Madrasa S, hospitals, and various donations (grounds, buildings, etc)

Thus by describing the work of the Mamelukes Turkish of Egypt since the reign of Salâh AD-DIN, Ibn Khaldoun explains why those, anxious for their descendants, had made build a great number of colleges, convents and monasteries, and that they had designated their children to manage them. The goods waqf multiplied: " The Masters and the students made some as much because of the treatments attached at these organizations. One came also there, of Irâq and the Maghreb, to make his studies there. the markets of the knowledge there were very attended and the ocean of knowledge ran with full bords." So that when Egypt was occupied by foreigners, traditional teaching could there subister thanks to the foundations of the Mamelukes and those which had imitated them.

In Moslem Spain, with the apogee of the dynasty Omeyyade, in the only city of Cordoue, one counted some 500 hospitals and 400 schools resulting from waqfs. These foundations made it possible to finance, inter alia, the work scientific and medical of Ibn-Rushd (Averroès), of Al-Kazi, Ibn Sînâ (Avicenne) and of the ophtalmologist Ali Ibn Isa, since, as about in all the medersas, the students were dealt with by the waqf.

Elsewhere, the funds of the waqf were used for the construction of the hospital and the medical school of Dar Al-Shifa in Egypt in 875 AH, of the medical complex Mouristân with Baghdad and the Mansouri hospital, for the benefit of which Ibn Annafîs S - that which discovered the circulatory system - gave its house and its library like waqf .

In Persia, in Ispahan, in Hérat, like in Bukhara and Samarquand, just as in India, of the identical foundations had been carried out.

Most of the donations related to also grounds. In the Othoman Turkey, the waqf occupied the three quarters of the surface cultivateds, in Algeria in the middle of XIXela half, Tunisia the third. In Egypt, in 1935, the waqf accounted for 14,3% of the cultivable grounds, which however benefitted only to 0,5% from the population. They was thus approximately 300.000 hectares of cultivable grounds which had become inalienable. The total budget of the ministry charges with their management was at this time of 1,57 million books Egyptian women, the royal family drawing from her waqf personal an annual benefit a little higher than a half million books Egyptian women

Beyond its economic aspect, the system of the waqf had already been the subject of vigorous criticisms of religious order. Thus at the end of the XVIIIe century, Ibn 'Abd Al-Wahhab, founder of the doctrines reformist bearing his name, had been shown of a great severity with regard to the drifts on the matter: at the same time as he violently condemned the chi' ism and the Sufism, he denounced the innovation consisting in carrying out donations in favor of the religious brotherhoods and the zâwiya (mosques and meeting rooms of the brotherhoods, also called " Marabouts " with the the Maghreb).

Colonization, as in India or Algeria, the establishment of protectorates, in Tunisia, then in Morocco and then in the Middle East, caused, inter alia, to impose French and English like administrative languages and of teaching on the detriment of Arabic. Many schools, and of universities resulting from waqf , and consequently autonomous financially, assumed the load of the formation of the Imams and the teaching of Arabic. These establishments, among which the famous universities Al-Azhar with the Cairo, Dar Al-Oulum with Deoband (India), Al-Zaytouna in Tunis, were hearths of resistance to colonization, and largely contributed to form the executives of the movements reformists and nationalists.

Reforms

- waqf major hurdle with the essential land reforms.

- progressive laicization of the codes

- reform of the right of the successions

- Tunisia: abolition of the habous (decree of July 18th, 1957 and later provisions). Domanial grounds + grounds repurchased the abroads + nationalization in 1964).

- Algeria: Article 214 of the Code of the family which authorizes the component to allot usufruct of it (what is contrary with jurisprudence malékite).

Current location of the waqf

- Suppression of the private waqf about everywhere.

- Forms of management today: by the administration of supervision; 2) by specialized orgabnisms indicated by the precedent; 3) By a company which n the other hand pays a fixed royalty in the State.

- Category: waqf hybrid (public and family: 1/3, 2/3)

- Suppression: The USSR

- No administration: Afghanistan, Indonesia, Pakistan, Yemen.

- Provincial Administrations: Libya, Saudi Arabia

- Central administration: Turkey (Bank Al-Waqf: investissments in: the sector of the waqf by bond issues with guarantee of the State)), Egypt, Syria, Lebanon, Jordan, Iraq, Iran, Tunisia, Morocco

- Algeria: Ministry for the religious affairs and the waqfs (decree 89-99 of June 27th, 1989)

- Morocco: Ministry for Habous (Morocco)

- Role of the Islamic Bank of development, created in 1975 (53 Member States): leasing; hire-purchase; acquisitions of a holding; administrative loads (2,5% maximum) --> World foundation for the waqf: 1) current management of the goods; 2) Receives the gifts.

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