The Ethical and Historical Context
For people raised in the West, the subjects of charity and philanthropy are not necessarily the features one is most likely to associate with the Islamic religion and its moral universe. The religio-ethical standards of behavior implicit in such words as kindness, generosity, love of humankind and compassion are not particularly evident when Islam and its adherents are depicted in the sources of information most commonly available in America -the electronic and print media. Instead, the Islamic moral universe as constructed by these purveyors of information tends to be more characterized by such features as militancy, violence, authoritarianism, personal- but not evenly distributed -wealth, and gender inequality. Even a purveyor of popular information as humanistic and assertedly objective in its outlook as the Christian Science Monitor feels compelled to work within these limits -what it probably believes its readership is willing to understand. Ten years ago, the newspaper ran a series of articles on Islam that attempted to be comprehensive in its treatment of the religion and its political and social aspects. The title of the series “Islam: Behind the Veil” -itself speaks volumes about the parameters within which the West is able to produce and reproduce its view of Islam (Christian Science Monitor, July 23-27, 1984). The theme of mystery and seclusion was recapitulated in one of the opening sentences of the first article in the phrase “a veil still lies across most of the Muslim world.” The headlines of the articles then categorize the substance thought to lie behind the metaphorical veil: “The Politics of Islam: What Kind of Government Does Islam Permit - or Demand?”; “The Impact of Islam: The Financial Challenge, Islam's Growth -and its Future;” and “Fundamentalist Islam: Muslims in Search of a Purer Islam.”
Given the long, complicated and predominantly hostile relations that have existed between Christianity and Islam, it should be no surprise that these themes have lasted and still resonate in our own time. Maxime Rodinson aptly noted that Islam was seen as a threat to Europe long before it became a real problem (Rodison 9). The early eighth-century theologian, Bede, in his ecclesiastical history of the English referred to the Islamic community as "that most grievous pest, the Saracens" who had laid waste the land of the Gauls but had received in due course appropriate punishment (Rodison 9). Later, the figure of Muhammad would become the object of scorn to Christian polemicists who knew nothing of their subject. One unusually candid writer cited by Rodinson, the 11th century Guibert de Nogent noted, “It is safe to speak evil of one whose malignity exceeds whatever ill can be spoken” (Rodison 13-14). There is a long thread linking those early Christian attitudes to today's media portrayals.
Christendom's view of Islam has been strongly flavored by the fact that for 1,400 of the 2,000 years of Christianity's existence, Islamdom has had virtually unbroken control over Christianity's holiest sites. Moreover, because of the geographic and ideological proximity of the Christian West and the Muslim Middle East, the adherents of the two religions have long been natural rivals and at times bitter enemies. In our own more secular age, Islamdom still manages to exert a firm grasp on the West's feelings of vulnerability. Bethlehem and Jerusalem have been replaced by the Buick and the Jeep as cultural artifacts threatened by Islamdom's control, this time its control of oil.
Given all this, it would be surprising to find much in the Christian or secular Western portrayal of Islam to suggest common values shared by the two great religions. And it is probably safe to say t4at through most of history, including the present, such has been the case. While Christian teachings stress love for humankind, compassion, mercy, and self-sacrifice, Western writing on Islam seems unable to locate similar concerns and teachings.
Yet the sanctified texts from which Islam draws its tenets and which are accessible, and indeed familiar, to non-Muslims are hardly devoid of injunctions to do good, to serve God, and to serve one's fellow man. Admonitions on charity and philanthropy in the Koran and the texts recording the sayings and doings of the Prophet Muhammad stress familiar themes and virtues:
“They will question you concerning what they should bestow voluntarily. Say: 'Whatever good thing you bestow is for parents and kinsmen, orphans, the needy and strangers and whatever good you do God has knowledge of it” (Koran 2:211).
“Those who bestow their wealth in the way of God are like the grain of corn that sprouts seven ears, a hundred grains in every ear. So God multiplies for those whom he will” (Koran 2:263).
“Oh, believers, do not void your freewill offerings with reproach and injury as one who bestows of his substance to show off to men and believes not in God and the Last Day” (Koran 2:266).
“If you publish your voluntary offerings, that is good; but if you conceal them, and give them to the poor, that is better for you, and will acquit you of your evil deeds” (Koran 2:272).
“Whatever good you do surely God has knowledge of it. Those who expend their wealth night and day, openly or secretly, their reward awaits them with their Lord” (Koran 2:275).
“You will not attain true piety until you voluntarily give of that which you love and whatever you give, God knows of it” (Koran 3:86).
The etiquette of charitable giving is not unfamiliar. Charity begins at home. It is best done modestly and without ulterior motive. One should not embarrass or demean the recipient. God will reward acts of generosity and goodwill. True giving lies in self-sacrifice.
Islam emerged in a world in which a number of traditions of philanthropy already existed. And its dialogue with these traditions affected the way that concepts of philanthropy were, and are, understood and acted upon in the many societies in which Islamic moral teachings came to hold sway. Of primary importance is the fact that although Islam appeared first in the Arabian peninsula, it quickly spread to and systematized its teachings in the Fertile Crescent and Iran. These lands had been part of two great Hellenized societies -the Christian Byzantine and Zoroastrian Sasanian. The world view of the Christians and Zoroastrians whom the Arab Muslims first subdued influenced the development of Muslim thought. Converts to Islam did not begin with a mental and ideological tabula rasa but themselves molded their conception of the Islamic message by their own
experience and the experience of their forebears as they understood it. The intellectual efforts to transform the teachings of Muhammad and the Koranic revelation into a comprehensive system c)f personal and communal law were carried out almost entirely within the former lands of the Byzantine and Sasanian Empires and took account of existing institutions and practices as these were incorporated where appropriate into an Islamic ethos.
This applied as well to the way in which institutionalized charity and philanthropy emerged and evolved in the Islamicate milieu. Philanthropic institutions had had a long history in the Middle East and had evolved in new ways as Christianity was adopted within the Eastern Roman Empire. In the pre-Christian period, philanthropy was often tied to the distribution of food during elaborate entertainments staged by the civic authorities. It was a pattern of welfare that has been summed up in the phrase "bread and circuses." When Christianity became the religion of the state and patterns of welfare were adapted to Christian teachings, the phenomenon of the great public entertainment in which food was distributed still remained but was now situated in a religious context -the dedication of a church, the appointment of a bishop, or the celebration of a Christianized holy day -rather than the civic context, such as a sporting event sponsored by a politician.
The purpose of philanthropy underwent redefinition along with its practice. In the pre-Christian Roman world, the purpose of the distribution of charity was to assert the donor's high social status and commitment to civic duty. For the Christian, the purpose of charity became, in Judith Herrin's words “the desire for future salvation, forgiveness of sins and life everlasting in the world to come” (Herrin 3). Herrin has divided the history of Christian charity from its beginnings up to the appearance of Islam into three stages: 1) the three centuries from Apostolic times to the acceptance of Christianity as the imperial religion by Constantine; 2) the two-and-a-half century period of imperial endowments from Constantine to Justinian I (313-565) and 3) a transitional century, which laid the foundations for medieval Christian charitable endowments (565-641). By the third period, at the end of which the Muslim Arabs appear on the scene, the main features of Christian charitable endowments were the following. First, imperial endowments had been directed towards religious ends and the Christian church had become the wealthiest single institution in the Near East. As objects worthy of endowment, the rectory had replaced the race track and the sanctuary, the circus. Some secular institutions like public baths, supported by pre-Christian donors as fulfilling a civic function, were patronized by the church when they also served a religious function -in the case of the bath the promotion of ritual purity.
Secondly, this transitional period saw a greater and greater role played by the wealthy individual in establishing endowments. But, as Herrin observes, the endowments and foundations that survived the longest tended to be those most closely associated with the imperial court and the leadership of the church. In other words, political support was important to the durability of the charitable foundations.
When the Arab Muslims conquered the Fertile Crescent in the second quarter of the 7th century, they thus encountered Christian charity and its institutions at a particular point of evolution. Earlier Western writers in this century, especially W. Heffening, whose work on the Islamic philanthropic foundation has been particularly influential, saw the Christian pattern as the basis and model of the Islamic institution. But the Muslim Arabs were exposed to other notions and institutions of charity and philanthropy besides Christian ones.
In Iran, conq"l1,ered by the Arab Muslims at the same time as the Fertile Crescent: Christianity had never made much headway. Here the moral universe was defined by Mazdean or Zoroastrian ethics. We do not have the kind of information about attitudes towards philanthropy and the patterns of philanthropy and welfare that we find in the Roman and Byzantine sources. But there is enough evidence to support the following outline.
As in Christendom, adherents of Zoroastrians were committed to pious deeds -acts which would contribute to the salvation of the soul of the donor in the afterlife. In Christianity much emphasis was placed on the poor and their needs, as well as on the cult. In Zoroastrianism, the cult was of prime importance -building temples and fire-altars and providing for priests and the performance of rites and services. ""Charity begins at home" was also a central ethical consideration in philanthropic activities. The Sasanian Law Book (Matakdan-i hazar datastan),13 an extremely important source for the Sasanian period (224-652 A.D.), documents private endowments and charitable foundations or philanthropic trusts in Sasanian Iran. 14 The law book was compiled in the reign of Khusraw II, Parviz (r. 590, 591-628) and provides the legal procedures for setting up a foundation. The
existence of philanthropic foundations themselves can be attested much earlier through inscriptions on pottery from the Parthian period (c. 247 B.C. to 224 A.D.) which indicate that vineyards in the vicinity of Nisa (southern Turkmenistan) were part of an endowment to perform services for the ""repose of the souls" of four Parthian kings, Priapatius (c. 191 B.C.), Mithradates (c. 171-148/7 B.C.), Artabanus, (c.127 B.C.) and Gotarzes (c. 90 B.C.).
The Law Book delineates the philanthropic trust as follows. By a testament in documentary form an individual would set aside or endow part of his private property to support a defined purpose "for the soul" (pat ruwan) or "for a pious purpose" (pat ahravdat). The income from the endowment first supported the maintenance of the principal, the payment of taxes, if the property was subject to taxes, and the remainder to fulfill the wishes of the founder. Control of the foundation was assigned to a trustee, and within the Sasanian state administration there appears to have been an office assigned to oversee these foundations.
When the Muslim Arabs appeared on the scene, both the Christian and Zoroastrian traditions of philanthropy and its formal institutions existed as accessible and available models, and it seems clear that whereas the ethical impulse to philanthropic works was securely rooted in Quranic and Prophetic texts, the way in which at least one of the formal institutions took shape, the philanthropic trust, was strongly influenced by these already existing legal structures, especially the Zoroastrian foundation. Perikhanian believes, in contrast to Heffening, that it was the latter model that shaped the Muslim legal rules on trusts, and he cites the following similarities between the two:
- the non-consumable principal, the yield from which first goes to maintain the principal (reinvestment and overhead expenses), then to pay taxes, and lastly to support the named beneficiary
- the unchanged tax liability of the principal from its pre-foundation state
- the formal nomination of trustees to manage the foundation
- the right of the founder to name him or herself the first trustee
- the irrevocability of the act of establishing the foundation
- the two types of foundation (private or family and charitable or public)
- the express right of the state through its judicial appointee to regulate the administration of the trust (Obshchestvo I pravo 175-176)
Formal Muslim Institutions of Philanthropy
There are three institutions in Islam that formalize the believer's moral obligation to do good work on God's behalf. Each is, quite distinct, both in the degree of its formalization and in the way in which it addresses the issue of charity.
The “Alms-tax”: Zakat
The first Islamic institution is the zakat (sometimes translated as alms-tax), which is one of the five personal obligations (the so-called "pillars of Islam") that also include the profession of faith, the five- times-a-day performance of worship or prayer, the month-long fast in Ramadan, and the pilgrimage to Mecca. Zakat can best be described as a wealth tax (generally about 2.5 percent) with fixed classes of recipients. But as an effective institution for both providing a means of fulfilling the impulse to do good and the social welfare needs that philanthropy addresses, its record is ambiguous. The alms-tax seems to have been collected rigorously at times, while at other times individuals paid it if they so chose. Even under such highly bureaucratized administrations as the Ottoman (mid-13th to early 20th centuries) there does not seem to have been a formal method of wealth assessment for the zakat, so that the amount paid would have been a matter of personal conscience. The classes of recipients were fixed by early tradition. These were: the poor, the needy, the people who collected and disbursed the zakat, Muslim prisoners of war who could be ransomed, debtors, people fighting in defense of the faith, travelers and "those whose hearts are reconciled," a code for the Meccans of Muhammad's time who fought him bitterly until their final surrender.
While the legal definition of the classes remained unchanged down through the -centuries, the people who originally qualified in two of these categories, “those whose hearts are reconciled” and, interestingly, those who collected and disbursed the zakat, had disappeared. There is not yet much evidence that the zakat, although it existed as a fully defined legal institution, ever satisfied the social welfare needs of any society for any period of time. The best evidence that we have that the zakat tax was not a significant factor in promoting social welfare is the silence of documentary and other written sources about it, aside from the works of legal theory.
The "Freewill Charitable Offering": Sadaqah
The second institution is the more generalized one of voluntary giving for a charitable purpose, or sadaqah. Throughout the early legal literature there seems to have been considerable confusion of the
terms sadaqah and zakat. Al-Bukhari, the great compiler of narratives attributed to the Prophet Muhammad, used the two terms interchangeably. But from other uses the meaning of sadaqah as voluntary giving, as contrasted with the obligatory alms-tax, is clear. In all the Koranic citations quoted above, the term for "bestowing wealth" is sadaqah, not zakat. Because sadaqah represents a voluntary act, there is only anecdotal evidence of its effectiveness in fulfilling, in any large-scale way, the purpose of philanthropy. Although the legal texts treat the potential consequences of a voluntary gift in comparison with an endowment in certain situations (when the donor is on her deathbed, for example), the nature of a voluntary gift precludes the kind of documentary trail that an endowment provides. Hence, for the historian sadaqah is a more difficult subject to research. One variant of the sadaqah -the voluntary charitable endowment -is, however, eminently suited to study.
The Sadaqah Mawqufah: The “Endowed Freewill Offering" or Waqf
Historically, the most significant institution of Muslim charity and philanthropy is the endowment, or philanthropic foundation, the third and most effective form in which charity has been institutionalized. It is commonly known by the Arabic terms waqf (pl. awqaj) (in Persian, vaqfand in Turkish, vak.if) and habs, habus (pl. ahbas), both of which carry the sense of restraining or tying something up. In the Islamic legal view, the institution originated when 'Umar ibn al-Khattab, a contemporary of the Prophet Muhammad and later the second to succeed him as leader of the Muslim community acquired land in the oasis of Khaybar near Mecca. He asked the Prophet whether he should give the land away as a voluntary donation (sadaqah) and the Prophet is reported to have replied. “Encumber the thing itself and devote its fruits to pious purposes.” 'Umar reportedly did this with the provision that the land should neither be sold nor inherited, and he dedicated its income for a variety of charitable purposes -for the manumission of slaves, for travellers, for guests and “in the way of God.” The sources from which this quotation is taken further elaborate this tradition in a way that suggests later developments by adding that it is no sin for the administrator of the endowment to “eat” from it in moderation as long as he does not enrich himself thereby.
Thus, we have the archetypal Islamic philanthropic trust, resembling in many ways the foundations and endowments in existence in Christian and Zoroastrian lands but not yet bearing the distinctive features of those institutions.
Legal Aspects
Definition
Because of the early political success of the community of Muslims -within twenty years of the death of the founder and prophet, Muhammad, in 632 A.D., Arab Muslim armies had conquered the Arabian peninsula, the Fertile Crescent, Iran, Egypt and much of the North African coast -work began very early to characterize and codify exactly what was distinctive about the new religion -its sacred text, its social codes, and its relations with non-Muslim groups.
As worked out by Muslim legal specialists (at least by the 12th century), the charitable trust was succinctly defined as the voluntary donation by the owner of the right of disposal of a thing or property (res) and the dedication of the usufruct to some charitable end. In other words, an individual having full right of disposal over some property declares, usually by deed, that it is henceforth, or at some future date, given in trust to a specified charitable end. The property so encumbered could be either real estate or moveable property, but it should produce a "benefit," usually income, that could be used to support the declared beneficiary. The endowment deed would clearly define the property involved and often, in the case of land and other real estate, append proof of ownership (sale deeds and sworn affidavits, for example.) The beneficiary or beneficiaries of the trust would then be named. The beneficiary had to be an acceptable object of charity (in Arabic a qurbah, or something pleasing to God). All trusts had to have a charitable object or they were invalid. In the case of trusts established mainly to benefit one's family, the legal scholars came to the view rather quickly that trusts of this type were indeed legitimate if the ultimate purpose of the endowment, as expressed in the wording of the deed, was a philanthropic one. Hence, one finds wording like "I make waqf of my home for my daughter and after her, her children and her children's children but if the line comes to an end then to the poor ."
Legal characteristics
Other legal qualifications for a trust are:
- It must be perpetual and inalienable, although social and economic circumstances have given rise to certain legally sanctioned institutions which in some cases have led to the effective alienation of trusts.
- Although there were some differences of opinion among scholars, the trust is generally irrevocable. Because of ambiguity and differences of opinion in the authoritative texts of the early legal specialists, it was not uncommon for a suit to be filed in court by the founder or, after him, his designated beneficiaries or administrators to void the trust deed. The judge would then affirm the irrevocability of the trust and dismiss the suit. The suit was both a device to stave off unfriendly suits and a means of asserting the “common law" point of view that trusts were irrevocable.
- An administrator or trustee has to be appointed, usually by the settlor (waq!n. who also had the right to entail the office in the line of the first trustee. However, the right of the state to super- vise the administration of trusts was explicit from the beginning, and one finds frequent reference to the role of the qadi-judge in removing incompetent or corrupt administrators or appointing successors when the settlor has not designated the line of succession. We also find that the trustees frequently turned to the qadi's court for reaffirmations of the rights of the trustee over the trust.
Socio-legal Aspects: Inheritance, the Family Trust and the "Mixed" Trust
The Muslim trust and its evolution are closely tied to Islamic rules on succession and inheritance. Succession to the estate of a deceased person is articulated in considerable detail in the Koran. The main section on inheritance begins with a general admonition that men and women alike are to receive a share of what their "parents and kinsmen, leave, “whether it be little or much, a share apportioned." It then proceeds with the following:
God charges you concerning your children: to the male the like of the portion of two females, and if they be women above two then for them two-thirds of what he leaves but if she be one then to her a half: and to his parents to each one of the two the sixth of what he leaves if he has children; but if he has no children, and his heirs are his parents, a third to his mother, or, if he has brothers, to his mother a sixth, after any bequest he may bequeath, or any debt... And for you a half of what your wives leave, if they have no children; but if they have children then for you of what they leave, a fourth, after any bequest they may bequeath, or any debt. And for them a fourth of what you leave, if you have no children but if you have children, then for them of what you leave an eighth, after any bequest you may bequeath, or any debt. If a man or a woman have no heir direct, but have a brother or a sister, to each of the two a sixth; but if they are more numer- ous than that, they share equally a third, after any bequest he may bequeath, or any debt… (Arberry 73-74).
By the time the procedures of these ordinances were worked out and other Koranic and Prophetic texts integrated, including the pre- Islamic inheritance rights of the agnates, all estate distributions became a matter of mathematical formula. 19 The bequest referred to in the Koranic text was restricted to no more than one-third of the estate and was further limited by the time period in which it had to be made and the eligible recipients. As laid down in the Koran the rules of succession thus left the owner of property no right to choose heirs and no discretion in what each would receive. Since for much of the Islamic period the law itself did not reach much beyond the urban centers. other local traditions on succession to estates prevailed. But in the modem period as polities asserted their authority by establishing Islamic courts further and further into the countryside the inheritance rules have had a more universal effect. And even in the pre-modem period it is generally believed although the evidence is not everywhere clear. that the cities were the homes to the wealthy even the large landowners and therefore the Islamic succession rules would have had a much wider applicability in terms of the distribution of wealth than the distribution of population might indicate.
Against this legal background, the ubiquitous nature of the Islamic trust has considerable logic, in the abstract. First, the trust was not governed by the inheritance rules. An individual could place all of his or her property into a trust and name as beneficiaries those who might otherwise have not been heirs, or fix the distribution of the income from the trust in ways different from the estate distribution under the Koranic system of proportional shares. It would appear, therefore, and some have interpreted it as a device for evading the Koranic rules on inheritance.
However, societies do not exist in the abstract and to the extent that the surviving legal manuals and documentation on waq{ -of which there is an abundance beginning as early as the late ninth century -reflect the social concerns of the time. one may tentatively conclude that every generation gave its own interpretation to the institution. Two examples, one early one late, will suffice. The late ninth-century al-Khassaf (d. 875) shows a predominant interest in what makes a trust valid or invalid. The examples he uses shows that for him the trust was primarily a family or clan foundation. The large public philanthropic type of trust so familiar after the 13th century seems to have been of far less concern to him (Abu Bakr…). His work indicates that he was well aware of this type of trust but his focus is on the manifold forms a family trust might take. More recently, the manual on trusts written by Qadri Pasha (d. 1888) for the Ottoman court system reveals a concern with the way ~n which trust properties were encumbered by liens -a situation earlier manuals do not reflect. The work spends no time discussing what makes a waqf valid or invalid primarily, of course, because Qadri Pasha was working within a well- established legal framework, while al-Khassafwas writing before any consensus had developed about Islamic judicial procedures and principles on waqf . (Pasha). As one reviews not only the legal manuals but the documentary record as well (deeds, suits, imperial decrees, court opinions), a process of continual change in the concerns of the people involved is evident. It is thus very difficult and probably unproductive to draw any universally applicable conclusions about the effect of the rules of succession on the creation of trusts. The common interpretation that trusts were devices to "circumvent inheritance rules" has to be regarded as applicable only if the individual circumstances warrant it.
An important legal feature of the Islamic trust is the absence of a substantive distinction between private and charitable trusts (in the Anglo-American legal sense). The historic distinction between the public, or charitable, trust and the private, or family, trust is not reflected in the legal definition, which encompasses both withou"t distinction. It is not until the modern era when the Islamic view on trusts begins to be influenced by European ideas about perpetuity that a clearer distinction is drawn between public and private trusts. Many of the Islamic reforms of the trust in the second half of the twentieth century were efforts to apply a rule against perpetuities for private trusts. In French Algeria and British India, European judicial theory on perpetuity was brought to bear on the Islamic trust with mixed results.22 It is probably fair to say the issue was less one of legal distinction than historic evolution in which public and official sympathy for private trusts was considerably less than that for the public ones as has been true elsewhere in the world, notably in the United States.
Modem-day students of the Islamic charitable trust have tended to focus on the difference between family trusts and philanthropic trusts, perhaps influenced by the evolution of Anglo-American law in which the philanthropic or charitable trust differs substantially from the personal trust where the "rule against perpetuities" applies. In Islamic law, the distinction is moot since both public and private ultimately serve the same purpose and both are bound by the same legal principles.
The family trust tended to be small and not particularly durable although there are examples of private trusts that had lasted three or four generations but from which the beneficiaries by the end were receiving very nominal sums. Property depreciation and the likelihood of an increase in beneficiaries with generational succession tended to cause family trusts to eventually disappear. Further, unlike the philanthropic trust, there was no obvious incentive to any individual beneficiary or potential donor to replenish the capital of a family trust, particularly if beneficiaries existed in collateral lines. A donor who wished to benefit members of his own immediate family could simply establish a new trust.
The large community trust. However, was and still is a durable and prominent institution in all countries where Islam has had a major impact from Southeastern Europe and Africa to Southeast Asia. In fact, in places where Muslims are in a minority (notably in India or the former Yugoslavia23) the philanthropic trust or waqf is and has been an important institution for the propagation and preservation of Islam. its cult and its culture in a predominantly non-Muslim environment.
There is a third variant of the trust that has gotten little attention: a trust with mixed beneficiaries, i.e., a combination of the family trust and the philanthropic or community trust. Even where the trust was not "mixed" from the outset, indeed may have never been legally a "mixed" trust, a long historic development of a community trust could ultimately evolve into a mixed or even entirely private trust.
Social Aspects of the Trust
Part of the procedure involved in establishing a trust was the appointment of a trustee. It was one of the three essential parts of the foundation -the other two being the naming of the beneficiary or beneficiaries and the description of the endowment itself. The designation of a trustee was left to the founder. The conditions of the appointment (salary, future succession to the position, and qualifications) were also set forth. The founder could name him or herself or anyone with the proper qualifications (of legal age, sound mental faculties and trustworthy) and could entail the trusteeship if that seemed desirable. Even where succession to the trusteeship was not specified by the founder, circumstances and expectations, of course, favored those with experience with the trust. It is probably the rule that in pre-, early-modern and modern times near relatives (sons or daughters, brothers and sisters) would succeed to the trusteeship. For large and politically sensitive trusts, states have typically played a more active role in designating trustees. At the same time, charitable trusts, often with governmental compliance, have played a major role in the formation and perpetuation of local elites and “dynastic families.”
There have been few efforts to study the long-term societal or economic consequences of trusts.24 Western authors seem to have brought certain views on trusts from the experience with mortmain in Europe to bear on the social and economic analysis of the Muslim trust. But there is a crucial difference between Europe, where there was a centralized religious organization, the Church of Rome, and the Middle East where there was no central religious establishment, no hierarchical organization that could use its political power to accumulate wealth and its wealth to accumulate more power. Instead, even the largest Islamic trusts had little political power. They some- times exerted considerable local influence (the trust administration of the great shrine at Mashhad in Iran, for example) but were not contextually capable, in general, ever to challenge the authority of the polities within whose jurisdictions they found themselves. Thus, the comparison of the Muslim waqf with mortmain decontextualizes the Islamic trust to a point where its genuine significance is somewhat obscured.
A better comparative institution would be the modern American charitable trust. The Muslim trust and the American charitable trust both are predicated on a similar condition: the American charitable trust must serve a purpose benefiting the public at large, including the relief of poverty, advancement of education, the advancement of religion, promotion of health, support of governmental or municipal purposes, and any other purposes deemed beneficial to the community at large or a substantial segment of it. The Muslim community trust recognizes all these purposes as valid and falling within those things considered to be pleasing to God. Both types of trust are perpetual. The American trust is distinguished from the Muslim waqf primarily in the fact that it excludes all private aspects. Unless a trust is exclusively charitable, it is subject to the rule against perpetuities in the American context while Islamic law allows for art ultimate charitable purpose. Yet, not immune to the influences of the world around it. Islamdom in its modernizing reforms has tried to suppress the private family trust. Otherwise, the two are remarkably similar.
Where this has important social implications lies in the history and evolution of the families associated with the trusts either as founders or settlers (in both the American and Muslim cases) or as trustees (especially in the Muslim case). The anthropologist George Marcus, examining the American context, has labeled such families "dynastic families." He calls them that because the fiduciary responsibilities associated with the trusts provide a dynastic impulse. That is, the fiduciary responsibilities and the social status associated with those duties, like the mandate of a royal family to rule and the associated status, provides the motivation for the family to reproduce itself in the fiduciary context. In the American context, the donor or settlor families he examines are the large capitalist families like the Carnegies, Rockefellers, Gettys, and Fords. They have their counterparts in earlier times in the Ahraris and Juybaris of Samarqand and Bukhara, respectively, (16th-18th centuries in particular), the Ansaris of Herat and what is now Mazar-i Sharif in Afghanistan (15th-19th centuries), and the Koprulus (17th century) in the Ottoman Empire. In the twentieth century, the ruling family of Iran, (the Pahlavis), the reigning line of Arabia, (the Saudis), the capitalist Harari in Lebanon, the Sultan of Brunei, and Adnan Khashoggi, among others, are examples of trust-founding families motivated by humanitarian impulses as well as social and political status.
Finding a more appropriate paradigm for the trust in the Islamic legal context depends on considerably expanding what is now a very nascent field of study. But the American context provides a starting point and, in turn, students of the American scene might find instructive examples in the far longer history of trusts that the Islamic record provides.
Political Aspects of the Muslim Trust
The Muslim trust, as the principal vehicle for the advancement of education and scholarship, has always been a powerful tool of patronage. The links between the ruling groups and their subject peoples have historically been weak through most of Islamic history. This is partly explained by the fact that Islamic teachings only contain the broadest outlines of a political philosophy and never developed an acceptable way of sanctioning the existence of temporal states. (Only the Zaydi Shi'ites of the Yemen seem to have achieved such a political philosophy.) It is also partly explained by the fact that after the tenth century virtually all governing groups were Turkish, a military minority that held sway in Arab and Persian-speaking lands for a millennium. This ethnic alienation, coupled with the always uncertain legitimacy of the ruling class in the eyes of the ruled, made any organized group or group with common interests and background a crucial element in politics. In general, the scholarly establishment and Sufi orders (two categories that often overlapped), both important coalescers and articulators of public opinion, tended to be the most significant beneficiaries of ruling groups' efforts at acquiring and holding popular support. The Muslim trust was one important means by which the Turkish ruling groups could provide these molders of public opinion with a stable economic basis and at the same time bind their interests together.
Some of the greatest trusts in Middle Eastern history were established in Egypt under the Turkish Mamluks (r. 1265 -1517). The Mamlilk amirs were great supporters of Sufi organizations, building large and magnificent khanqahs, or hostels for them and endowing them With commercial buildings and agricultural lands. Elsewhere, in the Ottoman lands, in Mogul India, and in post-Mongol Central Asia and Safavid Iran large-scale trusts were set up to provide permanent vehicles for the redistribution of revenue to these groups.
In providing for the scholarly and religious classes, the politicians of the post-Mongol period went beyond the conveyance of their own private lands into trusts. They also began to assign the tax revenues of regions as endowments. The rationale for this seems to have been that although the lands themselves may not have been the property of the state, the revenues were and could be assigned to a purpose which was clearly in the general interest of the community as a whole and certainly one pleasing to God. With the passage of time, however, such encumbrances on the tax base constricted the state's ability to fund its other expenditures, such as maintenance of the royal household, defense, and policing of the country. In the middle of the 19th century, the Ottoman government promulgated a new land law that formalized the tax-supported waqfs as a separate administrative category. This began a process, continued into the present century, in which the state has come to assume more and more administrative control, first of the tax-supported trusts themselves, then of the institutions they benefited -education, health and other social welfare services.
The system of education was a particular beneficiary because it employed large numbers of people whose voice in society was highly influential. Students and their professors both received stipends, almost always from an endowment. In addition, the madrasah -colleges in which they studied commonly employed large staffs. (Cooks, water-carriers, barbers, custodians and religious staff - imams (prayer leaders) and preachers -are the professions most frequently cited in endowment deeds). These, too, became part of the constituency served by endowments.
Today, in countries like India where Muslim education depends heavily on waqf income, endowment revenues are kept separate from government revenues for education, although the government may still subsidize the educational activity. In Libya, endowment' income for education represents only a small percentage of the actual education budget and although there is a ministry of endowments that supervises the income and expenditures on Islamic education, the government also provides the ministry with a large subsidy to cover the difference between endowment income and annual expenditures.
The social meaning attached to the trust as an institution with divine sanction makes it extremely important to heads of state and their political colleagues. The Shah of Iran, whose political legitimacy was always problematic, frequently and very publicly created new endowments to support the advancement of religion in the principal Shi'ite centers (Mashhad, Qum and the holy cities of Najaf and Karbala in Iraq). It is ironic, but not particularly surprising, that one of the beneficiaries of his endowments was Imam Khomeini during his exile in Iraq. Before the revolution of 1979, the Pahlavi Foundation, a gigantic trust, sponsored a variety of activities in the cause of advancing the religion. This included endowing chairs in Iranian and Islamic studies at foreign universities. Its endowment included properties all over the world, including luxury apartment and office buildings in New York City. After the revolution the trust was renamed the Mustaz'afin Foundation (The Foundation for the Needy), and it continues to promote the advancement of religion.
One of the political questions that continues to be linked to the Muslim trust is its tax status. Early students of the trust were under the impression that, like mortmain lands attached to monasteries in Europe, the Muslim trust lands were tax-exempt. There are good reasons beyond the comparative one for making that assumption, however mistaken it was. Where the trust income was derived from the tax revenue of a locale or region, it enjoyed a de facto tax immunity. Governments generally did not levy tax on taxes. However, there was no de jure tax immunity for trusts. Real estate, especially land, taxes were the principal source of revenue in the pre-modern Middle East. When property was liable for taxes before it was conveyed to a charitable purpose, it remained liable thereafter. The legal manuals provide sufficient evidence for this in the lengthy discussions of what a trust administrator could do to raise funds if he had insufficient revenue on hand to pay the taxes when they were due.
In addition, there is strong indirect evidence from Central Asia at least that the tax liability did not change with the conveyance of private property to a trust. We find this indirect evidence in the descriptions of a judicial proceeding in which taxable private property could be made tax-exempt prior to its being conveyed to a trust. This was done by surrendering two-thirds of the property to the state treasury in exchange for tax-exemption on the remaining one-third. Since the examples we have relate to property which was immediately afterwards conveyed to a trust, it is reasonable to assume that in the period covered by documents detailing this procedure (16th and 17th centuries) establishing tax immunity whenever possible was considered a desirable thing for an endowment. Whether this was the norm or not for the period, it is not yet possible to say. But it clearly shows that there was no presumptive tax immunity for trust properties. The lone exceptions to this, which help prove the case, are given as a site for either a mosque or a cemetery where the rationale for tax -exemption would seem clear.
Economic Considerations
Is the waqf an efficient economic instrument?
The judgements that have been rendered about the economic utility of waqf have tended to be sweeping and, at least as far as Western analysts are concerned, fairly negative. Heffening, whose obiter dicta on waqf have tended to be treated as serious findings, has left us these impressions. “The wakf system in the East was very beneficial in ameliorating poverty and misery and in furthering learning, but it had its shady side morally and economically (my emphasis). On the one hand, considerable sections of the population were taken from industry by the continual creation of new sinecures and supported at the expense of the country; on the other hand, the capital for these great endowments had to be supplied by the wealthy and this was acquired not by productive labor but by extortion and unprecedented exploitation of the people” (Heffening 1099). In fact, there has been no serious analysis of the productivity of trust vs. private property nor of the economic incentives or disincentives that are inherent in the Islamic trust.
One possible incentive lies in the manner in which the administrator of the Muslim trust is typically compensated. The salary of the trustee could be set as a percentage of either the net or gross income or as a fixed sum. Although, as far as I know, there are no studies of the problem of the form of trustee compensation as it relates to the economic viability and longevity of a trust, the percentage-of-gross- I income formula would seem on the face of it to give a trustee the greatest long-term incentive to maintain the capital of the trust, reinvest in it, and seek to supplement it. A fixed salary ultimately lost its relative value and the percentage of net revenues would perhaps have encouraged spending as little as possible on maintenance and reinvestment in favor of the trustee's share. Where percentages are mentioned, 10-20 percent seems to have been a norm for all administrative costs, including trustee compensation. Again, the patterns of salary compensation were probably a product of the custom at a given time in a given place, the economic sophistication of the founder and the involvement of the state in supervising trust administration. But there is nothing in their form per se that suggests a disincentive to maintaining the endowment property at the highest possible level of productivity.
What has been its effect in the real estate market?
Another charge leveled against the Muslim waq{ is that it removed property from the real estate market, thus distorting the market by sequestering large amounts of real estate that might otherwise be used more productively. This is viewed by Heffening and to a lesser extent by Baer in a work on waq{ as one of the inherently negative characteristics of waqfs (Baer 220-241) . Indeed, two recent anthropological studies of modern-day waq{ commercial property, one from Sefrou, Morocco, and the other from Yazd, Iran, suggest that trust property is less driven by market forces than is private property. But the productivity issue is not seen simply as one of maximizing profit or capital appreciation. In Sefrou the administrators of the trust keep rents on commercial property at a very low level, effectively eliminating rent as a cost of business. In Yazd, the researcher found that the rents were not kept low but tended to lag the market, rising and falling along with market trends but well behind the market (Bonine 192-193). The reasons suggested in both these cases are similar: that public waqfs had public purposes and profit was not their first priority. Each created a constituency -the employees of the foundation, its beneficiaries and those who did business with it. In addition, these trusts indirectly benefited those who might otherwise have had to provide the services if the foundations did not exist. These indirect beneficiaries, notably municipal and regional politicians, were more interested in the overall long-term health of the trust and far less in its short-term fiscal prospects. Each of these constituencies had agendas to which the waqf administrators had to respond. The economic aspects of the Islamic foundations are thus closely bound to the social meaning they embody and are somewhat constrained by that meaning.
In any event, the argument that trust land is universally isolated from the market and is not affected by market pressures is not borne out by history. The reality is that endowment properties tend to be recycled into the market if rents, for example, are kept too low or if insufficient attention is paid to upkeep. Legal devices have emerged over the years to mitigate the effects of the irrevocability of a Muslim foundation. One long-standing device is exchange -the right to trade property of equal or greater value for extant endowment property (unless expressly forbidden by the donor). Potentially valuable but undeveloped land in the center of a city might be swapped for productive agricultural land, for example. Another device is the sale of development rights. A tenant of an endowment building might purchase the right to develop the interior. The interior would then be his private property. Entire buildings, or their real value at least, might eventually then pass out of an endowment and into private hands. Similarly, a kind of "repair and deduct" provision has allowed a tenant to repair an endowment building where the cash flow to the trust was insufficient to cover the cost of the repair and thereby obtain either a reduction in the rent 'or a lien against the value of the property. The liens might eventually exceed the property's value and thus transfer it into the hands of the lien-holder.
The Islamic trust, like any other durable socio-economic institution, adapts to the changes in its environment and is invested with new or altered meaning by successive generations.
At the same time, as a Muslim -and thus divinely sanctioned - institution it maintains in people's minds a theoretically immutable character and legitimacy.
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