The concept of waqf
The word waqf comes from Arabic verb which means to stop, retain, consecrate - indicating that waqf property (bequest) is property that is exempted from ordinary course transaction and designated for other purposes. Thus, according to fiqh waqf is usually defined as the exclusion of property by the will of a person from his possession and its dedication to certain purposes.
Among these purposes are religious, in the narrow sense, social, educational, economic and charitable. It is important to note that the economic function of waqf provides consumption of yield while reserving the essence; in other words, ensuring the permanent benefit.
The word that denotes endowment charter originates from Arabic verb <<veqafe>> and Persian word <<name>>, meaning document, book. Legally speaking, vakufnama has character of court judgement because it contains the form of endowment introduced by court practice due to legal certainty.
Waqf is based upon the rules of Sharia Law, which is founded on two fundamental sources of Sharia: Qur’an and Hadith. Almost every Qur'anic verse of a legal nature is published in Madinah. Among verses that depict setting and foundation of waqf is verse 92. in surah Al ‘Imran, stating as follows: „You will not attain virtuous conduct until you give of what you cherish. Whatever you give away, God is aware of it. “
According to Bukhari and Muslim Sahih, the Prophet saws interpreted this verse with these words:
„After one die, his traces on this world disappear except for three cases: if they leave lasting good (sadaqah) knowledge that others will benefit from and well raised child that will pray for them. “
Two similar but not identical legal terms, endowment and waqf often cause contradictory legal interpretation; being identified at the expense of waqf. The category of endowment as institution is considerably narrower and historically older than waqf. There are many data stating that endowments were obligations that some of previously founded religions have required from their members. Proof of this are numerous temples and other religious objects around the world. Even in polytheistic groups, the size of temples and other ritual spaces, burials of rulers and humanitarian purposes were considered to be a reflection of the greatness of faith and strength of monarch. However, historically speaking, waqf as an institution is considerably broader than endowments in other religious systems, which were almost exclusively temples. Donating meant sacrificing to the Lord; except for some Christian groups in which facilities for asylum and alms were given through churches.
In Sharia, waqf is a comprehensive concept and fits to the whole economic system. After Islamic State took care of its citizen’s health, educational and social aspect of life, waqfs continued to exist and eventually evolved into a separate system. As a legal institute, waqf used to be a topic for research in many institutes and centers which, in terms of the legal regulation of the waqf, went deeper into the elaboration of Sharia law and its constituent parts.
The notion of waqf and endowment is related to the name of God's prophet Ibrahim as. Even today, there is a city built out of endowments of Ibrahim as in Palestine, named Halilu-r-Rahman.
Inspired by aforementioned interpretation of 92. verse of Ali Imran surah, Umar ibn Al-Khattab came to Prophet saws and said that his property in Khaybar was most useful and dearest to his heart. Then he asked for advice on how to make it a permanent sadaqah. The prophet saws told him that he would do the best if he made it inalienable; stating that in future he will not be able to „sell, inherit or donate it.“ After he had heard what advice Prophet gave to him, Umar ibn Al-Khattab decided that incomes from his property will be used for needs of poor, his relatives, the purchase of slaves, warriors, travelers and guests. No sin would be for the warden (mutawalli) to use incomes to feed himself and his friends in a moderate way. All sahibs and comrades of prophet saws followed Umar ibn Al-Khattab’s example, so there are historians who claim that among well-known sahibs each has endowed at least something. The Prophet saws as an example of usefulness and benevolence, endowed seven orchards himself. Whether movable or immovable, everything that served as social goods in general was endowed. An illustrative example is Khalid ibn al-Walid who endowed his military equipment including horses. Imam Abu Jusuf ended the long-lasting debate over whether movable property can be endowed, by simply stating the facts about endowment from the time of the Prophet as.
The foundation for the institution of waqf was laid by the answer of the Prophet saws to Umar ibn Al-Khattab’s question, further deriving the definition of waqf that states as follows: waqf is a property that is donated for religious purposes or charity, protected from sale, theft or any other form of dispossession.
Right after the death of the Prophet saws there were no disputes over the establishment of waqf since thoughts about endowment during the time of Prophet saws were still present. Taking into consideration the following facts: during the time of the Prophet as, waqf required neither any special form nor legal formulation, expansion of Islamic borders posed an issue of the actual ownership over conquered territories and finally the conversion of other peoples to Islam together with their understandings and tradition; there emerged a need for Islamic legal theorists (mujtahids) to fill many legal gaps. Based on first endowments, created during the time of the Prophet along with application of analogy regarding the making of wills and regulations related to them, in second and third century AH, legal theorists developed principles according to which endowments would be created, respecting the will of waqif in terms of way and purpose of his income disposal. So, only mujtahids were allowed and competent to interpret primary sources, derive solutions and formulate legal rules in accordance. Mutually agreed attitudes as such were considered to be obligatory legal rules, therefore law. Although everyone followed same principles, it was hard to reach an agreement in everything. Which eventually lead to formation of various courses and legal schools. Among the most important Sunni legal schools are: Hanafi, Shafi’i, Maliki and Hanbali. Muslims in Bosnia and Herzegovina belong to Hanafi school. Diametrically opposed schools and legal schools have led to certain difficulties in practice, especially in resolving legal disputes. It was necessary to find a way to overcome such difficulties. Mujtahids of Sunni madhhab set as a rule that any interpretation established by any of their schools is acceptable. Even such approach could not satisfy the practice because it caused certain uncertainties and inequalities in legal practice which eventually led to legal uncertainty.
To avoid these troubles, starting from VIII century, leaders have started to issue orders stating that courts and other authorities in their state respect and adhere to a particular course and legal school. Hence, in all branches of law there are contradictory interpretations by scientists belonging to different courses and legal schools as well as by scientists within the same course and legal school. There are three cases that support this idea:
Quite early in practice, the question of whether movable and consumable property could be endowed had raised. There were significant differences and disagreements among Islamic jurists about this; some arguing that waqf should serve as a source of lasting alms. To fulfill this condition, property should not be wasted away by consummation - immovable property. However, there are Islamic jurists who argue that consumable and movable property could also reach the condition of permanence. There is an interesting example that supports this idea: grain could be given as a seed to poor farmer who will repay the borrowed amount at harvest. Under same conditions, that grain could be given to someone else and so as years pass, the endowed grain serves as a source of lasting alms and help.
The question of whether waqif can keep the right of lifelong enjoyment in endowed good for himself also poses significant differences. Many Islamic jurists deny that right, stating that what is endowed should start serving its purpose at the moment of endowment, which means waqif cannot permanently enjoy the endowed good. Abu Yusuf, one of the most prominent Hanafi jurists supports the opposite opinion, arguing that waqif can keep the right of enjoyment and use of an endowed good until his death.
Scientists also disagree on the issue of waqf establishment. Some claiming that waqif's statement is enough, others require statement and conveyance of property and some consider it necessary to give a statement in front of qadi (judge) and confirm it with decision.
However, in practice, views that meet two conditions gradually prevail:
- 1. Encouraging the multiplication of waqf as an institution of general social benefit and
- 2. Ensuring the easier proof of ownership of this institution and elimination of unnecessary disputes.
In sense of aforementioned, the Hanafi school adopted the view stating that both immovable and non-consumable as well as movable and consumable property can be endowed; that the waqif can retain the right to enjoy the endowed property for life and that the waqf becomes valid when the court confirms the waqf's statement.