ISLAMIC INSTITUTIONS AND PROPERTY RIGHTS: …...cially higher education.10 What conferred a unique...

An early version of this paper was read at the MESA annual Conference 1994 I wish tothank professors Aharon Layish of the Hebrew University Jos Igartua of the Universit de Quebecˆ Montral and daggerner Turgay of McGill University for commenting on earlier versions

1 For economic history mostly the work of Douglass C North See North Thomas1973 North expanded his investigation of national economies and economic growth in his

ISLAMIC INSTITUTIONS AND PROPERTY RIGHTS THE CASE OF THE OcircPUBLIC GOODOtilde WAQF

BY

MAYA SHATZMILLER(University of Western Ontario)

Abstract

The paper examines the institutional economic performance of the public good waqf withthe intent of demonstrating the relevance of institutions to the momentous debate over Islamicbackwardness and European progress and the waqf Otildes role as supporter of learning institu-tions and promoter of social integration Through the application of two sets of theoreticalparadigms designed for measuring institutional behaviour property rights and institutionalarrangements to legal cases supplied by fatwumls from North Africa and Muslim Spain it willbe possible to analyze and evaluate the impact of one of the major institutions of the pre-modern Islamic world on economic progress

LOtildearticle tudie la performance conomique du waqf duciaire public (waqf khairAcirc) en tantquOtildeinstitution conomique Le but est de d montrer la pertinence de cette performance quantau d bat sur la d cadence conomique des soci t s musulmanes par rapport au progr s queconnut lOtildeEurope Sera tudi le rtradele de lOtildeactivit conomique institutionelle du waqf eng n ral et particuli rement dans les fonctions qui lui taient attribues comme le soutien desinstitutions scolaires ainsi que la promotion de lOtildeintegrit sociale Par lOtildeapplication de deuxparadigmes th oriques conues pour mesurer le comportement institutionel les droits de pro-pri t et lOtildeadaptation aux changements dans les conditions conomiques rapport s par lesdocuments juridiques tels les fatwumls de lOtildeAfrique du Nord et de lOtildeEspagne musulmane il serapossible dOtildeanalyser et dOtilde valuer lOtildeimpact de lOtildeune des plus importantes institutions du mondeislamique pr -moderne sur le progr s conomique

Key words economic performance property rights institutions

In recent years economic historians and anthropologists have focused theirattention on property rights and institutions in various contexts and applica-tions advancing a theory which suggests that together they have provided amechanism to drive guide and govern the economic progress of individuals andsociety1 Behind this theory lies a new economic philosophy which sees the

Koninkl ke Brill NV Leiden 2001 JESHO 441

ISLAMIC INSTITUTIONS AND PROPERTY RIGHTS 45

institutionsOtilde role in economic growth as much more instrumental than that ofindividuals While individuals need to be assured that property rights are secureand enforced in order to successfully engage in investment and other economicactivities it is the institutionsOtilde role in defending them that is crucial This roleis particularly important in defending the public property rights which com-monly suffer from free riders individuals who abuse public property takingadvantage of it either by claiming more than their share or by not contributingtheir share The exibility with which institutions are capable of replenishingthem if property rights fail to be secure and enforced is important For instanceinstitutional arrangements make it possible for the institution to adjust forchanging market conditions offering a mechanism of e ciency risk minimiz-ing and high returns all requirements for sustained economic growth2 The the-ory is even more relevant to the debate over Islamic decline and backwardnessand European advances and progress allowing us to compare institutionalbehaviour rather than technological innovations The idea that Ograveinnovationseconomies of scale education capital accumulation were not causes of growthbut were growthOacute3 which is the consequence of the theory of property rightssits well with Islamic historians who maintain that such attributes were in evi-dence in the medieval Islamic world but for some reason did not generate thesame economic progress which occurred in Europe in the 16th and 17th cen-turies4 Speaking comparatively the Islamic problem might well have been theinstitutions rather than lack of technological innovation capital accumulationetc So far the argument of the European breakthrough has focused on Euro-pean technology but this may well be challenged after institutional arrange-ments and property rights are examined in the context of non-Western historical

book Structure 1981 but revised some of his conclusions in his Institutions 1990 In thislast publication more emphasis is put on economic institutions and their performance As faras anthropology is concerned I have found the recent literature on women and property rightsparticularly useful for the study of womenOtildes legal status in Islamic societies See Rose 1992Goody 1976 Hirschon 1984 Stone 1982

2 The paradigms are summarized in North Thomas 1973 I have paraphrased here theauthorOtildes introductory overview focusing on the elements which I will be using later for the purpose of comparison The rates of return for individuals and society are not always thesame A discrepancy between the two sets of rates of return Ograveoccurs when property rights arepoorly de nedOacute or poorly enforced which will result in individuals being discouraged fromparticipating North Thomas 1973 p 2

3 North Thomas 1973 p 2 See the discussion of the assumed OgravebackwardnessOacute ofIslamic economies in comparative context in Shatzmiller 1994

4 On technical innovations in the Islamic medieval Mediterranean see Ashtor 1977 and1989 On the division of labour and specialisation of the manufacturing sector of the Islamiceconomy see Shatzmiller 1994 ch 5

46 MAYA SHATZMILLER

experience and in the Islamic context in particular5 Since the interest in inves-tigating the role of property rights in economic organizations peaked some 30years ago an array of paradigms analytical tools and scholarly framework formeasuring their effect on societyOtildes economic progress have been developed andapplied enabling us to study economic institutions in different societies and his-torical conditions comparatively It is the theoryOtildes combination of scholarlysigni cance and analytical tools which makes it uniquely suitable for measur-ing the economic performance of the Islamic public good waqf and helping usunderstand how it functioned6

The Islamic public good waqf the Maghribi frac12abacircs and the Middle Easternwaqf khayrAcirc Ograveendowment set apart for a charitable or religious purposeOacute7 hasbeen the focus of much scholarly attention8 but have yet to be examined in atheoretical framework which would interpret its workings as an institution andrelate them to their economic performance9 We need to do this because thereis a signi cant discrepancy between the reputation of the waqf as a successfuleconomic institution and the actual historical record of its performance Twomajor concerns have been raised which highlight the inconsistency in the his-

5 North acknowledged that he did not carry out a detailed speci cation of historical formsnor did he use primary sources and that his model is based on national dimensions ratherthan on smaller organizations See North 1990 p 71

6 Not much has been written on public property rights in Islamic law however seeZiadeh 1993 His article speaks only about land and the author maintains that there is nogeneral theory of property law in the sharirega and that the relevant issues are scattered in dif-ferent parts of the Islamic law corpus Papers on property rights were read at the 1980 con-ference in Belaggio Italy now published in Mayer 1985 and dealt exclusively with the pre-modern and modern Middle East and North Africa Nonetheless see the papers by R myLeveau and Abraham Marcus which refer to waqf

7 Wehr 1976 p 1093 Because the term waqf is used in the literature for both family andcharity purposes I opted to use here the term public good to distinguish the charitableendowment for the support of public municipal and religious institutions from the family one

8 The literature dealing with the various aspects of the waqf is too extensive to bereviewed here in detail The Encyclopedia of IslamOtildes new entry is currently being writtenwhile the old one is outdated Two special numbers one of the Journal of the Economic andSocial History of the Orient 383 (1995) the other of Islamic Law and Society 43 (1997)were devoted entirely to its social economic and legal aspects For review of the articles inthe JESHO volume see Van Leeuwen 1999 For review of recent studies see Hoexter 1998I will refer to studies of the waqf in this paper in relation to issues as they occur in the dis-cussion or when needed in comparative context

9 Previous studies acknowledged the importance of the interaction of the legal and eco-nomic framework as a worthwhile subject for instance Arjomand 1998 p 110 et sq Othersfocused on the nancial side like sbquoizaka 1995 p 313 et sq As far as the smaller non-rulersOtilde waqf is concerned which is the subject of this paper the number of studies devotedto the medieval nancial aspects is limited With the exception of studies on Egypt eitherGeniza or Mamlacirck documents most regions lack su cient documentation dating from theearlier period


torical economic performance of the waqf The rst is its failure to produce andsupport the kind of institutional learning experience which enhanced EuropeOtildesscienti c leap forward despite the fact that it was supposed to have done so asthe great supporter of religious and municipal life and institutions and espe-cially higher education10 What conferred a unique historical signi cance on the public good waqf was the fact that for hundreds of years it provided theonly regular nancial support for the medresa a provider of higher educationFul lling this role which was critically dependent on successful economic perfor-mance might well have been insu cient The second concern is that over theyears the public good waqf formed a considerable property presence in everyIslamic land Its mere survival as a working institution into the 20th century hasgiven historians of Islamic societies reason to describe it as Ogravethe promoter ofsocial interaction and economic integrationOacute11 Yet contemporary obsevers ofthe waqf alluded to some practices such as Ograveabnormally low rent which ischarged for the rent of habous propertyOacute which contradict sound economicsense12 But the mere fact that the waqf survived into the 20th century is not an indication of excellent economic performance Institutions can be economi-cally ine cient and still survive for hundreds of years through a combinationof non-competitive markets which cause fragmentary feedback of informationand actors incapable of acting upon the information because of weak ideol-ogy13 In NorthOtildes view OgraveIn a dynamic world characterized by institutional

10 See Huff pp 98-99 on the legal system pp 71-90 on institutions pp 151-160 on themedresa All of his observations are based on MakdisiOtildes work on the colleges Toby Huffidenti ed two major blocks in the progress of Islamic science One to be found in the legalsystem the other in Islamic institutions in particular the medresa

11 In particular the late Gabriel Baer the great champion of this image See Baer 1997See also Garcin 1998 p 108 on the eunuchsOtilde waqf as an instrument of liberation and socialintegration

12 Geertz 1979 p 151 Geertz actually thought that the low rent was a positive contribu-tion to the bazaarOtildes economy even though it does not make any economic sense See pp153-154 He puts the blame for this situation not with the MumllikAcirc law but with the trad-ing community of Sefrou which was entrusted with managing the waqf The conspicuous fact about the MumllikAcirc waqf is that in spite of its poor performance it continued to exist wellinto the 20th century This is how anthropologist Clifford Geertz described the waqf in theMoroccan town of Sefrou in mid 20th century Ograve183 shops and ateliers 4 ovens 4 founduqs3 public baths 4 grain warehouses a slaughterhouse 40 houses 28 rooms within houses andforty water-supply systems for houses 103 gardens mostly irrigated 305 elds mainly inrainfall wheat thousands of live trees and branches of olive trees separately dedicated Usersand lessees of this great number of properties pay abnormally low rent which is charged forthe rent of habus property and makes for its stabilization at this levelOacute

13 NorthOtildes study of institutions addressed this historical phenomenon by suggesting thatthe persistent ine cient economic institutions as well as poorly performing economies in gen-eral was not a phenomena unique to Islam but was shared by Latin American and Asian soci-eties and attracted the attention of economic historians See North 1990 pp 92-104 wherethe author provides an analysis of the model which explains this particular phenomena

48 MAYA SHATZMILLER

increasing returns the imperfect and fumbling efforts of the actors re ect thedi culties of deciphering a complex environment with the available mental constructs-ideas theories and ideologiesOacute14 Some of the divergent perceptionsof the waqf Otildes economic performance can be explained by source material andmethodology Studies based on archival records mostly of waq yyas the actsof endowments registered and kept in the local or regional archives15 have sofar painted a picture of an auspicious dynamic economic institution with con-siderable resources16 drawn from endowments made by powerful rulers andtheir families the wives and mothers of sultans17 and their entourage wealthyindividuals of substantial means military commanders merchants and traders18

These individuals endowed property for a whole array of public institutionsbuilding monuments such as shrines medresas khanqas zawiyas bathhousesand mosques many of which still stand today isolated amidst the urban decayof the medieval Islamic cities19 In North Africa and Muslim Spain the IslamicWest inscriptions on buildings and in books as well as chronicles compensatefor the lack of archival records for the history of the waqf The Granadanendowments registered by the churchOtildes administration following the conquest ofthe city in 1492 constitute the exception which proves the rule20 This method-ology has some aws initially because of its over-reliance on waq yyas whichonly capture the initiation of the endowment It is now agreed that in order towrite the long term economic history of the public good waqf we need to movebeyond the early stages of the endowment and examine what happened to theseassets after one or several generations The waq yyas establish the location andidentity of the property endowed objectives amount of money devoted to eachand other regulations of the endowment but fail to tell us what happened to itlater21 Sadly the waq yyas also distort the picture of the donorsOtilde identity and

14 North 1990 p 9615 The most comprehensive listing of waq yyas exists for medieval Egypt See Amin

1981 For a general view see McChesney 199116 The size of the land endowed by the Mamlacirck sultans as waqf is astounding See details

of the endowments made by the two last Mamlacirck sultans Petry 199817 See Petry 1991 for the huge amounts of money invested in buying the endowed prop-

erty by women of the sultanOtildes household 18 On the identity of donors in Mamlacirck Egypt see Denoix 199519 Waqf studies today include more and more topographical and architectural investigation

of the endowed monuments complementing the textual study of their waq yyas 20 See Villanueva and Soria 1954 and Villanueva Rico 1961 and 196621 This limited scope of research solely based on waq yyas did not escape scholarsOtilde atten-

tion OgraveIdeally every waqf foundation would leave a trail of legal documents beginning withthe waqf deedOacute McChesney 1991 pp 19-20 McChesneyOtildes book is unique among waqf Otildesstudies for its attempt to trace a continuous history of the institution by studying the endow-ments and the monuments over some 400 years


volume of donations since they report exclusively the endowments made bypowerful donors No evidence of endowments made by non-a uent commonersor small artisans has been found in the archives of Egyptian waq yyas so nei-ther they nor their small contributions have been taken into consideration whenthe overall picture is reviewed22

Clearly the methodological approach to the waqf needs to be reviewed andreassessed even for more recent times when scholarly interest in the questionof the waqf and property rights was motivated by the status of the conqueredand settled lands under colonial rule The question of property rights in Islamiclaw especially that of the MumllikAcirc school in the Maghrib came up for the rsttime after the French conquest of Algeria (1830) and again after the declara-tion of the French Protectorate in Morocco (1912) with obvious results23 TheFrench jurists concluded that property rights were a grey area in Islamic lawand that there was a basic contradiction between the inheritance system andwaqf making which needed to be solved if lands were to be rescued from eter-nal immobilization Basing the argument on their reading of the early MumllikAcircjurists in North Africa the French jurists questioned whether Islamic law pos-sessed property rights at all since ownership of the land was reported in theoryand in practice to be in the hands of the state and only the right to its culti-vation and building on it lay in the hands of individuals24 The French protec-torate practice of placing the right to the land in the hands of the state rescuingit from becoming waqf was based on this opinion and was later used by theauthorities of pre- and post-independent Morocco to implement it in social reality25 Whether or not these views were valid they established a historio-graphical if not a historical link between the weak state of property rights inMorocco and the popularity of frac12abacircs making among Moroccans as a means ofprotection from con scation and government misappropriation despite of itscorrupt managerial practices26 Regardless of biases both old conclusions and

22 For instance endowments by artisans have so far remained elusive leading the investi-gator of the Egyptian waqf Otildes archives to write OgraveThe latter group is quasi non-existent andit is clear that they did manage their property and that the pious foundations did not interestthem at allOacute Denoix 1995 p 35

23 See Michaux-Bellaire 1909 Milliot 1918 For the evaluation of the French policies forland acquisition in North Africa see Levau 1985

24 On the medieval view of the legal status of land holding and the stateOtildes domain seeShatzmiller 2000 ch 9

25 Leveau 1995 p 83 note 5 See history and analysis of colonial jurists attitudes toIslamic law inheritance and waqf in Powers 1989 especially on the debate surrounding thelegitimacy of the waqf vis- -vis the inheritance law

26 OgraveSupervisors or trustees who managed the trust wound up enriching themselvesOacute Levau1995 p 62

50 MAYA SHATZMILLER

new ndings should be questioned with different paradigms in mind to seewhether the idyllic picture of a rich well-endowed well-run institution with agood economic performance was accurate or whether we can postulate that inreality it was just the reverse

For the purpose of this study two sets of issues based on the new theorydescribed above have been selected to be applied against the evidence The rstdeals with secure and enforced property rights the second with institutionalarrangements27 In the next section I propose to apply these issues to a groupof fatwumls mostly of Moroccan provenance taken from the corpus of MumllikAcircfatwumls of the Islamic West known in short as the Miregyumlr collected by aMoroccan scholar al-WansharAcircsAcirc in the 16th century and gathered into a com-pilation28 The editor has grouped together all the questions and legal decisionsdealing with waqf Otildes matters into one volume entitled nawumlzil al-afrac12bumls whichis the 7th of the 13 volume set of the 1982 Rabat edition of the Miregyumlr 75of the 400 different fatwumls deal with endowments for the public good the restwith family waqf29 The fatwumls written between the 10th and 15th centuries are presented in the customary question and answer form giving details of theproblem encountered followed by the resolution 40 fatwumls are brie y summa-rized here to display the issues mentioned as a representative sample of themany con icts surrounding the endowed property which appear in the volumeThe assets referred to in the fatwumls were endowed several generations earlierand managed over the years by a series of different managers and public o ceholders The fatwumls are requests by managers for legal solutions to di cultiesencountered managing the properties under their care and sent to jurists livingin Muslim Spain and North Africa for their advice By placing the fatwumls intheir legal and economic context the discussion will pick up the historical threadwhere it was left beyond the particularities of the waq yyas and will providea better more accurate picture of the institutional behaviour of the public goodwaqf and a more correct economic history of the institution30

27 These issues are featured in North The Rise I have paraphrased the authorOtildes introduc-tory overview focusing on the elements which I will be using for the purpose of compari-son On rates of return North The Rise 2 But in contrast to NorthOtildes non-primary sourcesand the large national economies the analysis here is based solely on primary sources andinvestigates smaller economic organizations

28 Al-WansharAcircsAcirc 1981-8229 This enormous collection of several thousands fatwumls has recently been the focus of

intensive historical scrutiny used especially for the social economic and legal aspects SeePowers 1990 On fatwumls dealing with the family waqf in this volume Powers 1993

30 McChesney has used fatwumls of the frac14anafAcirc school to render the economic and legalattributes of the waqf in central Asia See McChesney 1991 pp 11-18


The rst question in the next few fatwumls is that of the property rights of thenew asset endowed An undated fatwuml from al-Andalus speaks of a con ictsurrounding a cow endowed to provide milk for the poor31 Some time after the endowment was made the donor changed his mind and designated the pris-oners rather than the poor to be recipients of the milk The manager of thepublic good properties questioned whether the owner had the right to change thebene ciary at that time The jurist replied that if the donor brought out the milkto the poor with his own hands then he did not sever his property rights in thecow the transfer of property rights over the cow was never complete and theoriginal endowment act was thus invalid As a result he could indeed name adifferent recipient for the milk Another example of the insecure nature of theassets in the public good waqf is provided in a fatwuml written in Fez in the 15thcentury concerning an orchard endowed to provide income for the maintenanceof a mosque32 The donor had given an extra sum of money to cover the administrative costs of the registration the notaryOtildes work and the witnessesOtildefees for signing the document transferring the property from himself to the public good But the endowment was challenged in court and never completedThe donor requested the return of the money he had previously given for regis-tration in order to pay for the costs of the litigation He received the moneyback from the waqf and won his case after which he once again endowed theorchard and again gave money for the notarial registration but this time herequested it back from the orchardOtildes revenue now in the hands of the waqf Themanager of the waqf Otildes properties wrote to the muftAcirc asking whether this couldbe done The jurist replied that the registration fee could not be paid back fromthe proceeds of the orchard since in the rst instance the transfer was nevercompleted and the donor could claim back the money he had given In thesecond instance the transfer was complete the asset was property of the waqfand no more claims on it or on the income from it by the donor could beentertained

The di culties with establishing property rights over the assets endowed for the public good waqf were compounded by the frequency of endowments of only a half or a portion of an asset a direct outcome of the inheritance law which divided property into small shares When this happened managementof the property became di cult and at times downright impossible This can be

31 Miregyumlr 7 76 A fatwuml written in al-Andalus unfortunately recorded by al-WansharAcircsAcircwithout the authorOtildes name but attributed to Ogravesome of the religious scholarsOacute

32 Miregyumlr 7 84 The muftAcirc who ruled over this case regAbd Allah al-regAbdacircsAcirc of Fez isauthor of many of the fatwumls discussed here On the muftAcircs who provided the legal rulingssee Benmira 1989

52 MAYA SHATZMILLER

seen in the next 3 cases taking place in 14th century Granada and 15th cen-tury Fez33 The purpose of the endowment of the rst two properties isunknown while the income from the third one was to go towards the mainte-nance of a mosque The managers in all three fatwumls reported di culties in han-dling the properties because property rights were shared between two ownersthe public good and a private owner In the rst fatwuml half a hall qumlrega wasendowed but the exact share was not speci ed either by measurement or dur-ing the transfer process frac12iyumlza In his answer the Granadan jurist Ibn Lubbexplained that the way to handle this problem was to approach it as if it was apartnership of precisely equal shares between two owners who had each con-tributed equal parts and were entitled to equal bene ts34 If despite his fatwumlmore problems occurred then the partners should appeal to the court for a ruleon this issue In the two fatwumls from Fez a half of a house and a half of anoven were endowed for a mosque and again the respective parts of the prop-erty were not established The house was rented out and a small amount wasdeducted from the rent because of the double ownership a situation prospectivetenants learned to dread over the years given the decline that was known totake place in properties under public administration The public oven the objectof the last endowment act stood idle because the manager of the public goodproperties objected to the contract negotiated by the private owner of the otherhalf for activating the oven The owner blamed the numluacuteir for depriving both himand the mosque of income and the jurist advised that the agreement betweenthe private owner and the baker should stand despite the managerOtildes oppositionto it35 Again the transfer process did not establish that property rights over theassets endowed were legally fully and correctly transferred from the owner tothe public good

Related to the issue of secure property rights is the issue of free riders themost frequently encountered problem in the public good waqf Otildes fatwumls Threetypes of free rider can be detected an individual who bene ts from the publicgood without contributing to its maintenance an individual who takes too largea share from the public good bene ts and an individual who appropriates the

33 Miregyumlr vol 7 72 93-94 42-43 The rst two cases were addressed to the muftAcirc AbacircSaregAcircd Ibn Lubb active in 14th century Grenada d 7821381 The third by Abacirc Mufrac12ammadregAbd al-Rafrac12Acircm b IbrumlhAcircm al-YaznumlsanAcirc d Fez 8341430

34 Partnership in capital labour or credit was an economic enterprise sanctioned and reg-ulated by the law See Udovitch 1970

35 David Powers also found that in cases of family waqf OgraveEndowments created fromjointly held property frequently resulted in disputes between the endowment bene ciaries andthe founderOtildes other heirs In several instances the dispute was resolved by the physical divi-sion of the propertyOacute Powers 1993 p 395


public good property for his exclusive use All three appear in different endow-ments and localities communal services and undertakings

The rst type of common free rider is displayed in two fatwumls from 12th and15th century Fez36 The rst is not directly related to an endowed property butto voluntary contributions for religious services normally covered by incomefrom endowments The free riders are shepherds living in a bumldiya a villagesomewhere in the countryside where the community hired an imumlm to lead theprayer The young shepherds who went out searching for pasture only return-ing to the village at intervals refused to help pay the imumlmOtildes wages saying Ogravewewill not pay taxes with you since we are present only irregularly illuml ghibbanwith you in the prayer behind the imumlmOacute The community argued that the per-formance of legal obligations included participation in religious services andtherefore required paying for them Each member of the community had toshare in the costs of the mosque and the welfare of the community even if theyonly attended irregularly If their dwellings were in the village they had to payother nancial obligations lawumlzim taxes like the regushr and the tra and themaghram of the sultan etc In fact the jurist imposed payment on the shepherdssaying that upholding iqumlma of the law of Islam was indeed incumbent onevery person and on every village The second fatwuml describes a refusal to payfor repairs of a large waterwheel located 4 miles away and maintained by rev-enue from waqf which provided the small town with water for irrigation forthe mosque for the public bath and for drinking The income from the endow-ments was insu cient for the repairs and an appeal was made to the publictreasury the bayt al-mumll to help pay for the repairs Later on the communitywas required to collect funds to repay the treasury but some members said thatonly rich were obligated to pay taxes for charity levied as a percentage on prop-erty and income regushr and zakumlt therefore the same thing should apply to itemsfor the public good The jurist disagreed and ruled that the whole communityshould contribute

The next three fatwumls display the second type of the common free rider onewho takes a larger share of the public good bene ts or revenue for himself The

rst two fatwumls from 15th century Fez involve teaching children in themosque37 The free rider was the teacher taking the mosque to be the publicdomain and conducting classes there thus saving himself the cost of renting aspecial location for this purpose His justi cation was that the mosque wasmaintained by the communal public good funds However the jurist ruled that

36 7 70-71 and 11-12 respectively The rst fatwuml by QumlacuteAcirc regIyumlacute The second by regAbdAllah b Mufrac12ammad al-regAbdacircsAcirc d Fez 8461442

37 7 36 and 7 83-85 respectively First fatwuml by al-MazjaladAcirc the second by al-regAbdacircsAcirc

54 MAYA SHATZMILLER

OgraveGod did not intend people to make a living in a mosque in this way in someplaces people could no longer pray because of the number of children aroundOacuteIn the second fatwuml dealing with the same problem the free rider used an anal-ogy that the judges held court in the mosque therefore he could teach there aswell The jurist ruled that both teacher and children should be banished fromthe premises

The third most common type of free rider was an individual who appropri-ated public good property for his own exclusive use as demonstrated in severalfatwumls In the rst case38 artisans married men worked at their trades in themedresaOtildes rooms initially endowed to house the students The manager de-manded to know whether they should be made to leave or whether rent shouldbe collected from them In theory artisans and other manual workers generatedincome for themselves and they could well have paid rent as did other usersof waqf owned stores In this case however since the medresaOtildes rooms were notendowed for this purpose the jurist resisted the temptation to increase theincome of the public good and made the tradesmen leave In two fatwumls writ-ten in 14th and 15th century Fez39 individuals used building materials left overfrom the building of the mosque for private use one used rocks the other soldan old pillar which belonged to the waqf The rst claimed that the rocks wereleft lying in a eld and used them to build a wall of a castle He justi ed it inseveral ways rst claiming that he had a fatwuml allowing him to do so then thatthe rocks were excavated when the foundations were dug out and since thepalace belonged to the stateOtildes treasury the makhzen he was justi ed in usingthose left over The jurist rejected his claim saying that the rocks belonged tothe waqf and could not be used for anything else regardless of whether or notthe government was involved In the second instance a man had removed a pil-lar from a ruined mosque and installed it in the Friday communal mosquejumlmireg in order to replace an existing pillar The discarded pillar was then soldto a private contractor who built an arc and two elevations on it The jurist saidthat the pillar could not be diverted to private use therefore the guilty partiesshould return the property The old pillar was returned and everything built onit destroyed The expenses were to be paid by the man who removed it fromthe mosque 15th century Fez jurists received more than a few complaints aboutfree riders of the waqf Otildes property The waqf Otildes management complained aboutsomeone using endowment revenue for xing his womenOtildes quarter40 about

38 7 7-8 by al-regAbdacircsAcirc 39 7 59 and 39-40 respectively First fatwuml by al-LakhmAcirc d 8721467 in either Fez or

Meknes the second by al-SuyacircrAcirc40 7 31 Fatwuml of Afrac12mad b regUmar al-MazjaldAcirc d 8641459-60 in Fez The case involved


others who appropriated land endowed for a ribumlszlig41 yet others who appropriatedland endowed to bene t the poor42 others who took advantage of an oven anda house endowed for maintenance of the great mosque43 and in another caseusers who caused the loss of endowed rope and a pail44

In 15th century Taza individuals requested repair of the roofs coveringendowed stores which had been damaged in a riot45 The repairs were estimated at30 gold dinars and the people who lived in the quarter and wanted to makewalkways to protect their houses and themselves approached the waqf and de-manded that the income from the rent of the stores should be used for this pur-pose The monthly rental payments would allow them to rebuild the roofs of the

unspeci ed funds from endowments for the upkeep of a community living in a fortress frac12itimesndefending the frontier The problem occurred when an individual had used the money to xhis womenOtildes quarters The jurist forbade this use of the revenue because the endowment wasmade for the welfare of the community as a whole The repair of one personOtildes womenOtildesquarters was not something from which the whole community would bene t

41 7 37 by al-MazjaladAcirc In this fatwuml written to and answered by the same jurist weencounter a community who lived on the frontier Land sown with esparto frac12alfumlfrac34 which wassold every year for around 3 dinars was endowed for their support The neighbours of thisfrontier community took control of the land burned the esparto planted the land with othercrops and gave a quarter of the grain harvested to the fortressOtilde people but refused to allowthem to herd their ocks on the land or use its water The jurist ruled in favour of the ribumlszligOtildespeople if the wumlqif speci ed esparto in the endowment act no other crop could be grownon the land

42 7 63 by al-SuyacircrAcirc d 8001397 The land in this case was taken over by an individ-ual who claimed to be poor and cultivated it with the promise to share the proceeds withthe other poor of the city His claim was denied the land in question was seized even thoughhe had already ploughed it

43 7 77-78 by al-AbdacircsAcirc The two properties fell into disrepair and became a garbagedump and the neighbours whose properties were adjacent to the ruined oven furn madeillegal use of them Since the properties were no longer in their original state no rent couldbe collected from them A neighbour from across the street built a wall in the lane and adoor inside it and used one of the dwellings to stable his cow Another grew hay in it andanother planted a g tree inside the oven and refused to pay rent He said the wall was builtto shield the people from the garbage The other neighbour said his father had rented twosmall halls in a courtyard but now the rental period had expired and he said to the managerOgraveI donOtildet need thoseOacute The wall protecting the two rooms remained in the courtyard hidingthe room from sight preventing anyone from renting it The decline in value made it impos-sible to collect rent or userOtildes fee and the managers seemed to be at a loss to either recoverthe property or collect income from it especially when the neighbours were using it for theirown purposes

44 7 55-56 by al-regAbdacircsAcirc It happened in a mosque which drew its water from a canalA pail and a rope which were used to draw water for use in the required ritual ablutionswere lost after some neighbours of the mosque used them for irrigation or to carry water totheir homes The jurist ordered that rent should be collected from people who used themosqueOtildes property for their own bene t and if they damaged it they should be held respon-sible for replacement The fatwuml reveals that in spite of reiterating the ban on using publicproperty for private use the jurist allowed rent to be claimed from individuals who did usethe tools

45 7 79 by al-regAbdacircsAcirc

56 MAYA SHATZMILLER

mosque and their walkways which they said would bene t the mosque the storesand the houses in front of the mosque The jurist disallowed the request sayingthat no changes to the instructions of the original endowment act were allowed

The fatwumls displayed disruptions in the workings of the public good waqfwhich were all related to property rights some to the fact that property rightswere not established the other that they were not secure In order to understandwhy and how this process occurred we need to look into the legal and histori-cal framework of property rights The rst set of disruptions resulted from thefailure to properly establish the rights of the public good waqf over the prop-erty endowed Again this was not simply a symbolic act A public declarationof ownership change is a requirement justi ed by economic e ciency as prop-erty owners need to keep communications in this respect perfectly clear OgraveCleartitles facilitate trade and minimize resource-waste con ictOacute46 The transfer of property rights is strictly regulated by the Islamic law The MumllikAcirc school re-quires that all the ownersOtilde rights in a property which was given away or soldshould be abrogated and de nitively terminated in order for the property to belegally owned by somebody else The transfer of property rights from the donorto the public good was to be taken care of through this legal procedure calledfrac12iyumlza which was intended to advertise the fact that the property had changedowners and which had to be performed in each and every possession takingprocedure It involved a written document signed before a notary and witnessesattesting that transfer of property rights had occurred The MumllikAcirc school seemsto have been more than any other extremely attentive to the performance of afrac12iyumlza and MumllikAcircs left a whole array of legal documents ranging from lawmanuals qh47 to fatwumls48 to wathumlfrac34iq the contract formularies from Muslim

46 Rose 1985 p 1647 The practice took several hundred years to develop however by the 14th century the

legal routine and the problems associated with public good waqf making were well in placeBest rendered by the 14th century Andalusian jurist Ibn Juzayy a contemporary of some ofthe muftAcircs mentioned in a summary in his comparative law manual as follows OgraveIf the donormade a certain condition in his endowment it is obligatory to follow it the management ofthe endowment should go to whomever he indicated if he did not appoint anybody the qumlacuteAcircwill the donor can not manage his endowed property if he did the endowment is annulledthe property would be maintained using the income it generates if this runs out incomeshould be taken from the bayt al-mumll if this runs out as well the property should be left todeteriorate the donor is not obligated to provide support for it for a horse support shouldcome from the bayt al-mumll if there is no money in it it should be sold and another prop-erty should be bought instead which does not require maintenance like a weapon Ibn al-Majisacircn does not permit such sale and it is not permitted to destroy the building nor tochange it if part of it broke down it is allowed to sell it but it should be used in the samemanner as the damaged part but others say it should be sold and not passed on to the frac12abacircsif everything around it was in ruinsOacute Ibn Juzayy nd p 281

48 We can easily recognize in Ibn JuzayyOtildes entry and speci cally in the second part the


Spain which provide a variety of frac12iyumlza contract models49 to actual archivaldocuments from Granada which documented the insistence on complete termi-nation of property rights of previous owners50 As the 14th century MumllikAcirc juristKhalAcircl explained OgraveThere is effectively no transfer of property right if the prop-erty returns to the donorOtildes possession during the year whether as rent passivepossession the donorOtildes clandestine return to the property or even his presencethere as a guestOacute51 The fatwumls show two very important consequences result-ing from the MumllikAcirc insistence on transfer of property rights The rst was thedevelopment of a central administration for all public good waqf Otildes propertieswhose managers were public o ce holders or administrators and the authors ofour enquiries The second was that when not properly secure this practicewould bring the regular supply of revenue to a halt Because the insistence ofthe MumllikAcirc legal school that properties endowed for the public good waqf couldnot be managed by previous owners or their families the MumllikAcircs do not permitOgraveself directedOacute endowments52 This directly affected the way the assets weremanaged under MumllikAcirc rule since in the Islamic West the managers would onlyrarely be members of a family favoured by the regime

This unique historical development of the MumllikAcirc waqf is particularly notice-able in comparison with waqf under the regime of other schools which werenot bent on forcing the previous owner to sever his links to the property Itseems that in the East under the frac14anafAcirc or Shuml regAcirc schools the practice was notto oppose or prevent the donor himself or a member of the endowing familyfrom becoming a de facto manager of the endowed properties53 Examples of

issues raised in the fatwumls by the managers the legal provision they invoked and the deci-sions reached by the muftAcircs It demonstrates how the legal body of the waqf provisions reg-istered by Ibn Juzayy was shaped and formed through a process of discussion of concreteand actual cases submitted to the muftAcircs and argued in the courts until it became a codi edwell synthesized body of regulations

49 For an Andalusian formulary of a frac14iyumlza see Ibn al-regAszligszligumlr 1983 pp 359-360 and IbnMughAcircth al-THORNulayszligulAcirc 1994 p 308 On these manuals see the introduction in Hoenerbach1965

50 A notarized document written in 1495 in Granada provides a glimpse of the frac12iyumlza con-tractOtildes historical signi cance especially for females It was used here in the transfer of prop-erty rights to a minor daughter in a manner which enabled parents to dispossess themselvesof a property and then take possession of it on behalf of their daughter still under interdic-tion This is done in order to guarantee a smooth transfer of the property after she reachesmaturity or in case of their pre-mature death See Seco de Lucena 1961 p 145

51 Quoted in Linant de Bellefonds 1973 p 36752 The performance of the frac12iyumlza is of great importance None of the acts such as gift

endowment or dowry for that matter would be valid until a frac12iyumlza has taken place This isclearly more then a symbolic act On the frac12iyumlza see also Linant de Bellefonds 1973 pp360-367

53 Numluacuteirs were appointed in Egypt and mutawallAcircs in central Asia but were mostly

58 MAYA SHATZMILLER

this practice could be cited from contemporary Mamluk Egypt54 or from cen-tral Asia where several generations of Antimesari family members continued to holdthe tawliyat of Mazumlr-i-sharAcircf near Balkh or where the Afrac12rumlrAcirc family managedthe Afrac12rumlrAcirc waqf in Kumlbul for generations as well55 Studies of these cases seemto indicate that self management or the appointment of managers closely con-nected to the donor have provided good results and better management than theMumllikAcirc practice

Property rights also need to be secured and defended The second set offatwumls dealing with the free rider displayed the problem of preventing an indi-vidual from abusing the public good or forcing him to participate in nancingit By far the most common obstacle to the enforcement of property rightsencountered in the fatwumls it was not unique to the waqf institution Economistsrefer to it as OgraveclassicOacute in the context of the public goodOtildes property rights butour evidence shows that the access to the public good property was so easy thatthe damage of the free rider bore a direct and easily measurable cost to the eco-nomic e ciency of the waqf56 The fatwumls show that every stage of the processsuffered intervention and interference from individuals who had access to theproperty the revenue or both Apart from speculating and embezzling accumu-lated funds left to them to be managed which was a prerogative of supervisorsand custodians57 ordinary people could address the lessees of waqf Otildes propertydirectly threaten them use the utensils and the water provided by the installa-tions take over buildings and building material and abuse the system in everypossible way without adequate deterrence The chroniclers described numerousexamples of managers carrying out major frauds with waqf Otildes revenue forexample the Fezi khaszligAcircb al-MazdaghAcirc lost 30000 gold dinars of the FezOtildes pub-lic good money speculating in wheat for his own account58 The existence of a

appointed by the donor himself attesting to a mutual bene t For examples from 15th cen-tury Cairo see Garcin and Taher 1995a pp 161 176 Denoix 1995 p 39 Such was thecase of the two last Mamlacirck sultans See Petry 1998 pp 113-114 Or the two ZuhrumlwAcircbrothers in 17th century Aleppo who appointed themselves administrator and supervisor oftheir endowments See Salati 1995 p 198 On the frac14anafAcirc practice in central Asia see McChesney1991 pp 13-14 41-45

54 In addition to the evidence from the sultansOtilde waqf quoted in previous notes see J-CGarcin and M A Taher 1995b

55 McChesneyOtildes 1991 pp 248-256 Stephen F Dale and Alam Payind 199956 North Thomas 1973 pp 6-757 As happened in the case of the khaszligAcircb al-MazdaghAcirc in 14th century Fez see Shatzmiller

197758 As early as the 12th century under the Almoravids the managers of the waqf in Fez

and Marrakesh helped themselves to the public treasury recorded by al-Jaznumlfrac34Acirc in his chron-icle Zahrat al-As Another major case of a managerOtildes speculation with the waqf Otildes revenuesoccurred in the 14th century and recorded by two chronicles See Shatzmiller 2000 ch 5


large number of free riders indicated that the public good waqf had no defenceagainst them because as an institution it did not have the appropriate meansto do so Defense of property rights in this case preventing free riders fromabusing the public good can be achieved by using ideology through which soci-ety instills in its members reverence for property rights or by the state Becauseof the monopoly it held over means of enforcement the state was ideally placedto defend property rights at a lower cost than voluntary organizations such asthe waqf Otildes donors or waqf Otildes management59

In our case none was available The ideology behind Islamic philanthropy isgiven the primary role as the dominant motivation for waqf Otildes making amongindividuals in the secondary literature Looking at this ideology as a factor inthe economic context however reveals its weakness to deter free riders ThisideologyOtildes hold over the communityOtildes members was weak As the evidence pre-sented here seems to indicate it was ineffective in deterring individuals Muslimsdid not view the public good property rights in the same way they viewed indi-vidual property rights The idea that the proceeds of voluntary giving would beguarded and shared equally by all did not convince members of the communityto refrain from abusing the public good Whether because of weak ideology ortrust in the helplessness of the system to retaliate members did not hesitate toengage in practices depriving the public good of revenue The Islamic ideologysystem provided the legal mechanism to endow for the public good but did notprovide strong enough measures to force free riders managers or even sultansfor that matter to respect the property rights of the public good and not toabuse them60

The other factor which could have deterred free riders was the state bydefending and enforcing the property rights of the institution This did not hap-pen in the case of the MumllikAcirc state in the West

It is not clear at what stage in the waqf Otildes development the Islamic state asa central administrative power withdrew from providing systematic support to

59 See North 1981 pp 45-5860 A study of the endowments made by the MarAcircnid rulers of Morocco in the 13th-15th

centuries for the public good revealed that their endowment was individually motivated bya combination of piety and political gain but was never undertaken by them or by othermembers of the dynasty in a persistent nor unanimous manner The assets they endowed weresubstantial houses squares apartments stables public baths ats mills orchards publicovens inns halls manufacturing stores for weaving and soap making arable land and fooditems and the income they provided went to support mosques schools hospitals fountainsand cemeteries but their management was as insu cient as anybody else The stand offbetween MarAcircnid rulers and the religious milieu in 14th century Fez epitomised this processSee Shatzmiller 1976

60 MAYA SHATZMILLER

religious and municipal institutions or even whether it ever has61 Unlike themedieval European state the Islamic state enjoyed very early at least under theregAbbumlsids if not earlier a well developed sophisticated administration espe-cially in scal matters such as tax collection dAcircwumlns etc However it neitherendorsed nor developed a policy of nancing municipal services such as pri-mary education health or religious services including mosques62 This task wasleft in the hands of individuals When rulers endowed from their own wealthor used the stateOtildes funds over which they had control they acted as private citizens This alienation of the state from acting as an institution with the ideaof supporting municipal institutions at least in the historical experience of theIslamic state in the West might well have been triggered by the inherent antag-onism between the state and the religious milieu including the jurists63 Therivalry between a group of pious yet strong willed individuals armed with ide-ology who felt superior to the holders of secular power did not bode well forthe nancial future of religious personnel and institutions The state neverreturned to support public and religious institutions instead when assets andrevenue from private endowments grew it tried to claim a share of the incomeaccumulated in the hands of the public good waqf In the Eastern regions thepractice was different There the state succeeded in gaining control over revenueand interfering in management but at the same time also provided defense ofproperty rights In the case of the central Asian waqf the supervision of thepublic good waqf by the court was more pronounced and the waqf paid taxesto the state64 Voluntary groups incurred higher costs for enforcement than thestate and therefore had an incentive to trade with the state giving it revenue(taxes) in turn for the rigorous de nition and enforcement of property rights65

61 In spite of the abundant local writings dating from the 10th century onwards thechronological and institutional evolution of the public good waqf still eludes us We under-stand the legal aspects of the waqf Otildes endowment process and the way it nanced the variousfunctions but we are not fully aware of the origins of the institution the model which shapedits structure nor the stateOtildes role in its creation Most views hold that the existence of anancient model of charitable bequest in the areas inherited by the Muslims inspired the Islamicwaqf or that it was self-generated by independent social and economic forces in the earlyIslamic world See Arjomand on possible models and the references cited

62 See article OgraveMaristumlnOacute EI 263 I have documented the tension between the religious milieu and the MarAcircnid rulers in

Morocco in the 14th century in Shatzmiller 1976 Here I clearly take a different interpreta-tion of the role of the magistrates in the Islamic state from the position upheld by Arjomandand McChesney that judges and muftAcircs were tools of the state The evidence I presented heredoes not allow this view

64 Properties which paid taxes before being endowed continued to be taxed while thosewhich were not did not McChesney 1991 p 46

65 North Thomas 1973 p 7


This was exactly the situation with the frac14anafAcirc waqf in central Asia OgraveThe stateis an acknowledged party to the legal operation of the waqfOacute66 In 11th cen-tury Iran the qumlacuteAcirc had the power to intervene and make changes to thewaq yya and the fact that he was in the governmentOtildes service could be takenas a sign of the stateOtildes involvement in the operation of the waqf67 There areother historical instances of stateOtildes intervention in the East Under the Fumlszligimidsand apparently under the Ayyacircbids the dAcircwumln al-afrac12bumls or al-frac12ubacircs mighthave been independent from the main dAcircwumlns but was still administered by thestate It was considered a special category of assets but its revenue was usedfor religious purposes even though from the time of Badr al-JamumllAcirc in the 11thcentury it was also used to pay military salaries68 Yet in the Islamic West the patterns evolved differently Not only did the qumlacuteAcircs and muftAcircs not act onbehalf of the state they actively opposed any attempt by the state to intervenein the waqf Otildes management There was a neat separation between the public(waqf ) revenue and the state and the rulerOtildes private treasuries The MumllikAcirc waqfdid not pay taxes to the central administration By the 10th century the waqf Otildesrevenue in Muslim Spain was held in a special treasury managed by the grandqumlacuteAcirc and his agents It was housed separately in a purpose built room calledthe bayt al-mumll in the great mosque of the capital to distinguish it from thekhizumlnat al-mumll the public treasury of the state placed within the Ummayadcourt itself69 This pattern was transferred to Morocco and was fully in evi-dence under the Almoravids Almohads and MarAcircnids during 11th to the 15thcenturies There too the revenue of waqf orphansOtilde deposits and unclaimed in-heritance money were placed in a separate room in the al-Qarawiyyin mosquethe central mosque in Fez where a qumlacuteAcirc or a khaszligAcircb was in charge of it70 Inspite of the muftAcircsOtilde insistence on maintaining an arms length distance from thewaqf Otildes money individual rulers attempted from time to time to gain access tothe public good waqf Otildes revenue Fatwumls kept by al-WansharAcircsAcirc show thatMarAcircnid sultans tried to gain access to the waqf Otildes revenue even claiming backtheir endowments no matter whether or not this revenue came from assets they

66 McChesney 1991 pp 13-1467 Arjomand 1998 p 117 Based on statements made by McChesney68 See Cooper 1974 p 869 L vi-Provenal 1953 pp 71-7170 The public treasury bayt al-mumll had the right to claim the estate when there were no

heirs present The MalAcirckAcirc bayt al-mumll kept this practice like the one regulated by otherschools and became the legitimate heir to the estates of intestate individuals See Linant deBellefonds 1973 pp 112-114 Layish 1983 Shares in the inheritance were claimed legallyor illegally in many instances by representatives of the Mamluk bayt al-mumll who were pre-sent during inventories of property of dying persons see Little 1985 p 233

62 MAYA SHATZMILLER

had endowed The waqf Otildes managers and the jurists fought back even denyingclaims that the money was needed for communal services such as buildingbenches around the mosque for the community or preparing for the Jihumld71

So whether the assets were large and numerous and endowed by the sultansand their entourage or small nickel and dime waqf endowed by people of lit-tle means their fate was the same to be managed by the waqf Otildes administra-tion with the attendant problems To all intents and purposes the stateOtildes rolein enforcing the public good waqf Otildes property rights in the Islamic West waslacking72

The second set of issues in the con ict ridden waqf Otildes management deals withthe lack of institutional arrangements These were needed when changes tookplace One such occurrence was when the waq yya was lost and the institutionhad to adjust to the new conditions In 14th century Fez a manager was facedwith the loss of revenue from land leased to an individual who built a stableon it73 After the death of the lessee his children inherited the use of the prop-erty and paid rent for it When the building fell into disrepair they refused topay further74 The jurist advised that if no written document bayyina or iqrumlrwhich might provide any details of the endowment act or the renting out con-tract could be found they were not liable for payment A similar case occurredin 14th century Fez where a store and other unspeci ed properties wereendowed to provide income for an old mosque and a hospital75 The waq yyawas lost and an attempt to build a wooden platform in the mosque came to ahalt Unlike the previous case however the jurist ruled that the person incharge should do whatever he deemed necessary despite the loss of the found-ing instructions The loss of the waq yya in another incident in 15th centuryFez resulted in confusion about what to do with surplus income This time theincome was considerable and the jurist ruled that half should be used for build-ing expenses and half to provide food for the poor OgraveIf the income is notsu cient for both purposes then it should go rst to provide food because thesick are needyOacute A jurist from 15th century Tlemcen also agreed to disregardthe loss of the waq yya in a case submitted to him regarding an arable land

71 See fatwuml by al-AbdacircsAcirc about such a proposal sent to him for decision discussed inShatzmiller 1991

72 Notice how the Egyptian geographer al-regUmarAcirc comment on the little amount of waqfin MarAcircnid Morocco while his contemporary the Andalusian vizir Ibn al-KhaszligAcircb visiting Fezsaid that its endowments Ogravewere numerousOacute See Shatzmiller 2000 ch 8

73 7 44 Fatwa by regAbd Allah al-regAbdacircsAcirc 74 Compare with North Thomas 1973 p 675 7 40 and 7 83-84 respectively First fatwuml by al-SuyacircrAcirc d 8001397 Second fatwuml by

Abacirc regAbd Allah al-regAbdacircsAcirc


endowed to support a scholar76 The support was halted when it was discov-ered that the original instructions including the speci cations for selecting abene ciary had been lost In his response the jurist showed concern for thee ciency and expediency of the process OgraveTo avoid loss of revenue the bestcandidate available for the position should be selectedOacute he suggested Ogravea changeof the existing regulations to a simple legal partnership arrangement should bedone Instead of receiving his share after the threshing of the wheat is com-pleted he should be able to gain access to it immediately after the harvest Even when the waq yya was available the instructions were sometimes insucient as it was in the case of unspeci ed property endowed to buy metal edgesfor the roof of the great mosque in 15th century Taza77 The dilapidated metaledges which had been endowed some time ago were useless and unless re-paired were at risk of being lost The manager requested that the jurist assumethe responsibility of making the decision whether to x them because he themanager had no power to override the waq yya The jurist complied Ograve themetal edges should be sold and items of potential bene t to the mosque shouldbe bought with the money Oacute

Institutional arrangements were also necessary when market conditionschanged Detrimental for economic performance the results of not having thesein place could also be far reaching for the social fabric as the next fatwumls willshow Three fatwumls from 14th-15th centuriesOtilde Fez differ slightly from each otherbut share a common problem the decline in revenue affected directly the wagespaid78 In the rst case several employees of the mosque including an imumlmleader of the prayer a mufrac34adhdhin who calls for prayer a numluacuteir supervisorand a qumlbiacute a revenue collector and others received regular wages Over theyears as the income from the waqf Otildes properties grew the imumlm requested araise and he along with the other employees such as the Qurfrac34umln reader thecommentator and the frac12azzumlbacircn received one The raise remained in effect untilsometime later when the income declined Con ict arose when faced with thedwindling revenue the manager had to make a decision which service to dis-pense with or whether all wages should be reduced and revert to the originalstate He asked the muftAcirc whether o ce holders should be dealt with accordingto seniority or to the utility of their service or should the imumlm be favouredrather than the mufrac34adhdhin The jurist decided to maintain equality among the

76 7 43 Fatwuml by Ibn Marzacircq d 8421438-39 in Tlemcen77 7 52 by regAbd Allah al-AbdacircsAcirc78 7 5-6 al-regAbdacircsAcirc Abacirc Mufrac12ammad Abd Allah b Mufrac12ammad d Fez 8491445-46

another member of a family who produced muftAcircs for 150 years 7 41-42 fatwuml by al-YaznasinAcirc Sidi Abacirc Isfrac12umlq IbrumlhAcircm b Mufrac12ammad d Fez 7941391 7 17-18 fatwuml by thejurist Khalaf al-MumllikAcirc

64 MAYA SHATZMILLER

different employees and if the wages needed to be reduced then everyoneOtildesshould be reduced equally In the second case a group of mufrac34adhdhins werepaid wages from the rent of endowed stores but the revenue in question wasalso used to defray other costs relating to the mosque The numluacuteir increased themufrac34adhdhinsOtilde wages to 70 dirhams a month but paid it out of the surplus fromother sources He also increased their number to seven even though the mosquetraditionally employed only four However in the following year the mosqueneeded repairs to its roof With nancial help from other mosques the numluacuteirspent more than 300 dinars on this and refused to give the mufrac34adhdhins theirusual supplement The mufrac34adhdhins took the matter into their own hands goingto the endowed stores and demanding that the individuals renting them shouldpay them the additional money or vacate the premises They the mufrac34adhdhins claimed that they could use them themselves or rent them out as their rightSome artisans paid up while others were unable to do so and decided to leaveWhen no one else wanted to pay the increased rate some of the stores remainedunoccupied for some time The jurist resolved the crisis by retaining only fourmufrac34adhdhins abolishing the increase restoring the leases to their previous leveland paying back the extra money the mufrac34adhdhins had extorted In the thirdcase the revenues endowed for the bene t of a medresa declined and thebene ciaries comprising students and staff a mufrac34adhdhin a teacher a servantand a guardian were faced with the question of whether all staff should con-tinue to receive their entire wages and only the balance be distributed amongthe students or whether the declining income should be shared equally amongall The jurist decided that the servant and the guardian were the only ones toreceive their full wages Firstly because that was how the wumlqif wanted it sec-ondly because the medresa depended on their services The jurist al-regAbdacircsAcircwho dispensed justice in 14th century Fez spent much of his time dealing withthe waqf Otildes property problems In the next case he had to decide which of themosqueOtildes services would be affected by the decline in revenue wages theamount of oil used or the number of lamps lit79 The case involved a man whowas employed as a OgravelighterOacute waqqumld in the great mosque for the sum of 12OgravesmallOacute dinars every month When he was hired the mosque had 120 lamps butas the income declined the number of the lamps was reduced to 60 and thelighter received only half his previous wages He protested claiming that thenumber of lamps should be increased so that he could continue to work and bepaid as before The juristOtildes decision was that only if the original act of endow-ment speci ed his wages and there was an increase in the revenue would he

79 7 85-86 by al-regAbdacircsAcirc


be entitled to receive his entire wages If there was no income to cover theincrease needed to provide more oil and lamps in addition to paying his fullwages he should be offered the option of accepting the reduced wages or leav-ing and someone else should be hired in his place The decline in income wascaused by too many available stores and houses for rent and since these rentsprovided most of the revenue for wages and maintenance the employees weredirectly and immediately affected by it How to generate income when the assetsendowed no longer produced su cient income or no income at all was adilemma to which some managers responded by implementing an investmentstrategy One manager in 14th century Fez suggested to replace an ablutionfacility with an inn80 another to convert a house into a silo in 15th centuryFez81 yet another suggested the sale of a source of water on endowed land inTaza82 An opening for investment occurred when the Jews of Fez requestedpermission to dig a canal from the courtyard of the mosque adjacent to theirquarter to supply them with water83 Given the mosqueOtildes fragile state the struc-ture could be damaged by digging in the courtyard but the Jews offered to pay for the repairs Here was an opportunity to bene t the mosque by invest-ing in its foundations and generating some extra income at the same time How-ever the manager could not make the decision since he was not sure whetherallowing such an action constituted an infraction of the endowment instructionsFollowing his appeal to the court the jurist who saw no contradiction in the

80 7 57 by al-regAbdacircsAcirc The case involved unspeci ed property the income of which paidfor maintaining two ablution facilities dumlr wuacuteacircfrac34 for a mosque One of the facilities becameinactive for lack of water and the numluacuteir wanted to sell it and buy an inn The jurist deniedpermission saying that as long as there was any chance that water could be channelled tothe facility and that it could be reactivated the property could not be sold nor could an innbe purchased

81 7 78-9 by al-AbdacircsAcirc An endowed house fell into disrepair but a man wanted to buildtwo silos in it to keep grain He offered to pay for constructing the silos so they would bene tboth the house and the mosque The earth which would be removed in building those 2 siloswill be used to embellish the house which would then yield a higher rent Yet the juristrefused to allow it saying OgraveIf you are satis ed that the house does not now or in the futureneed the 2 silos and if you can rent it in its present condition you may not improve it with-out the express permission of the person who made the endowmentOacute

82 7 88-89 Undated fatwuml by Mufrac12ammad b Abd al-Mufrac34min (I am unfamiliar with thismuftAcirc ) A lot endowed for support of a mosque could not attract occupants The lot had asource of drinking water on it which the manager wanted to sell separately but was not surewhether it was permitted for someone to buy the water and use it for another place OgraveIf theshare of pro t we can derive from the water is neglected and not sold it will be taken awayillegally and become a private property with the passing of timeOacute he said in his enquiry ThejuristOtildes decision was to adhere to the instructions and not allow the sale even though it con-tributed to a decline in revenue for the mosque


66 MAYA SHATZMILLER

offer allowed it on condition that the Jews repaired and improved the canalOne of the most interesting cases revealed in a fatwuml occurred in 15th centuryTunisia84 A row of stores was endowed so that the rent would provide formaintenance of the cityOtildes walls but a decline in economic conditions resulted inthe stores remaining empty for a long time In the meantime the walls requiredrepair and the security of the city was threatened The jurist was asked whetherartisans and merchants could be forced to occupy endowed stores so thatincome could be generated for xing the walls The jurist forbade such action85

Other fatwumls refer to historical events which affected market conditions suchas the advancing Christian Reconquista in Spain The rst was a general ques-tion as to who should be held responsible for providing fodder for a horseendowed for the Jihumld86 The jurist replied that the donor was no longer re-sponsible for the fodder and absolved him from any lingering responsibility Another fatwuml from 10th century al-Andalus provided a decision about thefuture use of endowments for a fortress which fell into the hands of theenemy87 The jurist answered that the income should be used to support one ofthe other Muslim forts in the same manner A jurist in 14th century Granadawas asked about properties endowed in Bijumlya to support people exiled fromAlmeria88 The recipients included a manager and Qurfrac34umln readers orphans andunmarried young women and there was also money for dowries for poor girlslighting of the mosque and maintenance of its coverings and pious deeds ingeneral The revenue produced by the endowment was insu cient to nance allthese items Would it be legal to supplement it with income generated in Alme-ria from properties whose original purpose was not known The jurist explainedthat in order to ful l the mission of a Ogravecharitable and a good deedOacute one is enti-tled to a share in the revenue generated from assets whose original purpose wasunknown To his mind revenue whose purpose was no longer known was sim-ilar to surplus revenue from assets whose objective was known He also referredto a decision allowing this solution and implemented by judges in CordobaUnlike previous fatwumls which were mere consultations this one referred to an actual court case where a ruling frac12ukm was issued The last two fatwumlscome from 14th-15th century Fez refer to changes following the demographicdecline in North Africa This decline which was con rmed by contemporary

84 7 58 by jurist Ibn regArafa85 The practice of forcing artisans and merchants to occupy stores built by the state has

been recorded by chroniclers of medieval North Africa86 7 58 by regAbd al-frac14amAcircd al-Ntildeumlfrac34igh For a notarial endowment formulary of a horse des-

tined for the Jihumld see Ibn al-regAszligszligumlr 1983 pp 206-07 Clearly there was a common ques-tion which is also dealt by Ibn Juzayy in his manual

87 764 by Ibn Zarb lived in Cordoba d in 38199188 7 91-92 by Ibn Lubb


chronicles89 was not seasonal and unlike the yearly market uctuations was anew reality which the managers needed to confront Two fatwumls described aban-doned villages whose inhabitants had disappeared but their mosques had assetsendowed for them and these were still producing income The jurist was con-sulted by the managers about whether the endowments of a mosque in adeserted village could be sold90 The managers were eager to spend it on othermosques but in both cases the juristsOtilde decision was unanimous endowmentswhich still provided income should not be liquidated as long as there was hopeof resettlement If there was no longer any chance of that then the land or therent from it should go to the Friday mosque the jumlmireg or the next mosque butunder no circumstances could the property be sold Some of the propertiesendowed were quite insigni cant nickel and dime endowments but the prob-lems they caused required just as much attention and time which bore no rela-tionship to their economic worth91 A woman endowed a saw to be rented outto produce income The saw had remained in one personOtildes house for 12 yearsbut now it was feared that it might break The manager asked what to do Hewas also confronted with a similar situation where an endowed room wasinhabited but so run down that no rent could be collected for its use The man-ager offered to sell the endowed properties and buy more pro table ones but

rst wanted to know whether it was permissible to do so The jurist advised thatit would be better to sell the saw and buy half a house or a quarter of a storeso that the mosque would receive the rent from it As for the room the juristdisapproved of the option of replacing it with a store or a water cistern whichwould yield revenue

The fatwumls show that in the scramble to resolve con icts both the managersand the jurists turned to the waq yyas whose disappearance absence in-su ciency loss or vagueness were detrimental to the smooth ow of economicactivities Could waq yyas or the jurists for that matter be regarded as agentsfor introducing institutional arrangements Judging by the context the waq yyascould not be seen as supplementing institutional arrangements Useless in deal-ing with con icts they contributed rather to paralysing the situation The juristswere better placed to supplement institutional arrangements They were shownattempting to address problems by encouraging the managers sometimes toignore the lost instructions and sometimes to use their common sense They

89 On the demographic decline in the region see Shatzmiller 1994 pp 55-68 where thesupporting evidence is discussed

90 7 56 and 7 62 First fatwuml by al-regAbdacircsAcirc second by al-Qabbumlb d 7781376-77 in Fez91 7 54-55 764 First fatwuml by al-regAbdacircsAcirc second by Ibn regArafa d 8031400 in Tunis

friend and sometime rival of Ibn Khaldacircn

68 MAYA SHATZMILLER

recommended the preparation of a budget with careful accounting to specify theincome the expenses future needs and anticipated income They advocatedusing tools which would favour better management good record keeping andquick resolution of problems before they could become full blown confronta-tion Why the jurists could step into the role of agents of con ict resolution isclear Unlike the managers they felt more con dent in the environment throughthe power of futya legal opinion given to them However their power to insti-tute new arrangements was limited rstly by the law itself secondly by thenature of their intervention which occurred infrequently non-systematically ona per case basis and at a late stage in the development of the particular con ictMoreover informed economic decisions need to be swiftly implemented andas the fatwumls show the necessity of appealing to the muftAcirc or qumlacuteAcirc in theabsence of arrangements to implement immediate resolutions and informedinvestment decisions delayed action by the managers and prevented them fromacting immediately as needed Moreover the same problem resurfaced againand again indicating that no arrangement was institutionalized The need toappeal to the jurists to solve disruptions also took up a great deal of time forboth jurists and managers sometimes in no proportion to the anticipated bene tfor the community The managers of the properties and of the revenueexhausted the juristsOtilde time by asking them to deal with questions which wereessentially economic but had to be disguised as legal matters The large num-ber of waqf related fatwumls decisions made by numerous qumlacuteAcircs and muftAcircs forvery similar causes indicated frequent disruptions and frequent appeals But itwas the social upheaval resulting from the disruption which highlighted theweakness of the institution Rather than being Ogravethe promoter of social interac-tion and economic integrationOacute the distress caused by the way the institutionoperated was expressed in the managersOtilde frustration and in the coercion usedby clients in handling the di cult situations tearing into the social fabric andpitting members of the community against each other92 The damage to the eco-nomic potential of the waqf to generate income is also visible At times thewaqf Otildes managers were shown to be aware of how to remedy the situation andwilling to engage in other investments but they were prevented by the lack ofpower or tools in other words deprived of institutional arrangements to affectchange This lack of power to affect change was a great impediment to initiateand discouraged the managers from taking advantage of the investment oppor-tunities which were available and accessible to private investors For instancemanagers of the waqf did not invest the proceeds in trade speculate in grain

92 Compare North Thomas 1973 pp 5-6


or conclude investment partnerships all common investment techniques widelypractised at the time by Muslims in the very same regions where individualsand family trading houses engaged in these practices93 Instead the waqf rev-enue was derived from one source user fees and rent whether from land or realestate This dependence on one single source of income precluded other invest-ment venues and was punitive in times of economic decline if not down rightself defeating in terms of the waqf Otildes mandate The limitation to rent did notprotect the waqf from risk instead it condemned it to face new economic con-ditions with no power to make changes Again the contrast with the East isstriking where it was often possible for frac14anafAcirc qumlacuteAcircs and managers to effectchanges to the waq yyas94

To sum up the institutional history of the public good waqf was distinctfrom that of the family waqf which evolved concurrently Its institutional behav-iour was shaped by several factors not shared by the latter chief among themideology It embodied the Islamic ideal of personal piety of voluntary givingwhich was the proclaimed driving force for endowing property to bene t thepublic good For the individual endowment meant not only the voluntary rejec-tion (waqf from waqafa ie to stop end arrest a motion) of full ownershipwithout personal compensation or future say in management or bene ts butalso sharing the bene ts on an equal footing with the community Both requireda strong ideological motivation At the same time there was much more to themaking of a public good waqf than just philanthropy Endowment for the pub-lic good had a de nite political motivation in many instances since private andpolitical interests were never far away95 with patronage ensuring the loyalty of civil and religious clientele and control of resources outside the inheritancesystem all found to have existed96 Yet more then anything else it was the legal factor which shaped its institutional behaviour becuase it de ned and regulated its activities Thus the performance of the waqf hinged upon theful lment of two mandates the rst strictly legal to remove a given asset fromprivate ownership and give it a new legal status as public property owned andoperated by the waqf Otildes administration The second economic to carry out theinstructions of the waqf Otildes maker as stated in the waq yya e ciently but essen-tially to generate income preserve and manage the asset and prevent its abuseand dilapidation In this manner the legal and economic mandates of the public

93 See entry OgraveTidjumlraOacute EI2 (Maya Shatzmiller)94 OgraveIn the frac14anafAcirc manuals current in Balkh in the period of this study there were provi-

sions for sale exchange andor lease of waqf property Oacute McChesney 1991 p 1395 On the Islamic view see Arjomand 199896 For two cases see Marcus 1985 p 123 on Aleppo and for Fez Shatzmiller 1991

70 MAYA SHATZMILLER

good waqf were intertwined mutually dependant and in uential Despite the clearlyde ned mandates the evidence discussed here shows a public good institutionwhose economic performance was awed Problems were expressed in twoways in procedure the everyday operation of the system was con ict riddenand prone to come to a halt and in lack of economic growth The fatwumls showinstitutional behaviour resulting in loss of revenue confusion interruption ofwork increased costs declining revenue or no income at all The returns forboth the institution and society were at best insu cient and in many instancescompletely absent In the long run the compounded structural problems resultedin the liquidation of the assets and the failure of the institution to carry out itsinstitutional mandate to support religious municipal and scholarly life andinstitutions The causes could be traced back to several issues primarily inse-cure property rights and lack of institutional arrangements Here the legal systemwhich de ned and regulated the waqf failed to provide adequate institutionalarrangements while its ideology and the state failed to enforce the public goodproperty rights Nonetheless the fatwumls examined were MumllikAcirc and the way theMumllikAcirc waqf developed in the Islamic West diverged from the way it developedin other regions This might have had a direct impact on its institutional eco-nomic performance

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DeclineOacute Israel Oriental Studies 7 226-280 Reprinted in a shortened versionin The Islamic Middle East 700-1900 A L Udovitch ed (Princeton 1981) pp91-132

1989 OgraveThe Factors of Technological and Industrial Progress in the Later MiddleAgesOacute The Journal of European Economic History 18 7-36

Baer Gabriel1997 OgraveThe Waqf as a Prop for the Social System (Sixteenth-Twentieth Centuries)Oacute

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Benmira Omar 1989 OgraveAl-nawumlzil waOtildel-mujtamareg Dirumlsa fAcirc tafrac34rAcirckh al-bumldiya al-maghribiyy khilumll al-

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Garcin Jean-Claude1998 OgraveLe Waqf est-il la transmission dOtildeun patrimoineOacute in La Transmission du

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Entries in EI2

Tidjumlra The economic history of tradeMaristumln


institutionsOtilde role in economic growth as much more instrumental than that ofindividuals While individuals need to be assured that property rights are secureand enforced in order to successfully engage in investment and other economicactivities it is the institutionsOtilde role in defending them that is crucial This roleis particularly important in defending the public property rights which com-monly suffer from free riders individuals who abuse public property takingadvantage of it either by claiming more than their share or by not contributingtheir share The exibility with which institutions are capable of replenishingthem if property rights fail to be secure and enforced is important For instanceinstitutional arrangements make it possible for the institution to adjust forchanging market conditions offering a mechanism of e ciency risk minimiz-ing and high returns all requirements for sustained economic growth2 The the-ory is even more relevant to the debate over Islamic decline and backwardnessand European advances and progress allowing us to compare institutionalbehaviour rather than technological innovations The idea that Ograveinnovationseconomies of scale education capital accumulation were not causes of growthbut were growthOacute3 which is the consequence of the theory of property rightssits well with Islamic historians who maintain that such attributes were in evi-dence in the medieval Islamic world but for some reason did not generate thesame economic progress which occurred in Europe in the 16th and 17th cen-turies4 Speaking comparatively the Islamic problem might well have been theinstitutions rather than lack of technological innovation capital accumulationetc So far the argument of the European breakthrough has focused on Euro-pean technology but this may well be challenged after institutional arrange-ments and property rights are examined in the context of non-Western historical

book Structure 1981 but revised some of his conclusions in his Institutions 1990 In thislast publication more emphasis is put on economic institutions and their performance As faras anthropology is concerned I have found the recent literature on women and property rightsparticularly useful for the study of womenOtildes legal status in Islamic societies See Rose 1992Goody 1976 Hirschon 1984 Stone 1982

2 The paradigms are summarized in North Thomas 1973 I have paraphrased here theauthorOtildes introductory overview focusing on the elements which I will be using later for the purpose of comparison The rates of return for individuals and society are not always thesame A discrepancy between the two sets of rates of return Ograveoccurs when property rights arepoorly de nedOacute or poorly enforced which will result in individuals being discouraged fromparticipating North Thomas 1973 p 2

3 North Thomas 1973 p 2 See the discussion of the assumed OgravebackwardnessOacute ofIslamic economies in comparative context in Shatzmiller 1994

4 On technical innovations in the Islamic medieval Mediterranean see Ashtor 1977 and1989 On the division of labour and specialisation of the manufacturing sector of the Islamiceconomy see Shatzmiller 1994 ch 5

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72 MAYA SHATZMILLER



















bridge UP


bridge UP






















Press



Andalus 19 457-62


Madrid

74 MAYA SHATZMILLER




guage Services



Entries in EI2









68 MAYA SHATZMILLER








70 MAYA SHATZMILLER


BIBLIOGRAPHY






































72 MAYA SHATZMILLER



















bridge UP


bridge UP






















Press



Andalus 19 457-62


Madrid

74 MAYA SHATZMILLER




guage Services



Entries in EI2







70 MAYA SHATZMILLER


BIBLIOGRAPHY






































72 MAYA SHATZMILLER



















bridge UP


bridge UP






















Press



Andalus 19 457-62


Madrid

74 MAYA SHATZMILLER




guage Services



Entries in EI2




























72 MAYA SHATZMILLER



















bridge UP


bridge UP






















Press



Andalus 19 457-62


Madrid

74 MAYA SHATZMILLER




guage Services



Entries in EI2




















Press



Andalus 19 457-62


Madrid

74 MAYA SHATZMILLER




guage Services



Entries in EI2


74 MAYA SHATZMILLER




guage Services



Entries in EI2


ISLAMIC INSTITUTIONS AND PROPERTY RIGHTS: …...cially higher education.10 What conferred a unique...

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Transcript of ISLAMIC INSTITUTIONS AND PROPERTY RIGHTS: …...cially higher education.10 What conferred a unique...