Waqf in Zaydī Yemen

Front matter

Eirik Hovden

Wagf in Zaydi Yemen

Legal Theory, Codification, and Local Practice

Contents

Acknowledgements 1x

Figures XI

Transliteration XII Personal Names and Imamic Titles x11 Dates XII

Introduction

Standing in the mountains of western Yemen at the edge of a large rainwater harvesting cistern! that I wanted to photograph, and breathing heavily from the climb, my host and informant said: "This cistern is not like the others we saw today, this one is wagf” Then he was quiet for a moment, clearly thinking to himself, trying to figure something out. He finally said, "Actually, they are all waqf—they are made for the benefit of all Muslims.”

In my MA thesis? I describe the use of rainwater harvesting cisterns and their role in local water management and the related system of ownership structure, but I never fully grasped the concept of waqf. At that time I had few informants educated in Islamic law who could explain the legal framework of wagf and I did not have the language skills to understand the texts of Islamic law. On several occasions, before I was able to investigate the topic of wagfin greater depth, I thought, what does it mean that that specific cistern was waqf? Or that they all were waqf? And what are the implications of that fact in the local society? Would that cistern be taken better care of compared to other cisterns because of its religious status as waqf? These basic questions are one of the foundations of this book.

The institution of waqf (pl. awqaf) in Islamic law is in many ways similar to trusts, endowments or foundations in present day, western law. In premodern Muslim societies, infrastructure—and especially urban infrastructure—was to a large extent established and managed as public foundations, that is, waqf. This was not only the case for mosques, which are nowadays the main remnant of official, formal awgāf but also for schools and scholarships for education, services for the poor and sick, the public water supply, community houses for

1 Inmany areas in Yemen, the population lives on mountaintops and ridges where there is no groundwater. Here, large water tanks (birka, majil) are used to collect and store rainwater for domestic use and for animals. The technology is centuries old and a well-integrated part of society.

2 Inthe context of his statement, where Muslims are the majority—he was essentially saying that the waqfs are for the benefit of people in general (as he did not think in terms of religious minorities).

3 Eirik Hovden, “Rainwater Harvesting Cisterns and Local Water Management: A Qualitative Geographical / Socio-Anthropological Case Study and Ethnographic Description from the Districts of Hajja, Mabyan and Shiris" (MA thesis, University of Bergen, online: bora.uib.no/ handle/1956/2001, 2006).

© EIRIK HOVDEN, 2019 | D01:10.1163/9789004377844 002 This is an open access chapter distributed under the terms of the CC BY-NC-ND 4.0 license.

the reception of officials and travellers, and halls for holding local celebrations and religious festivals.

As a thematic focus, this book concentrates on *non-mosque" public foundations in Yemen and most of the examples are related to the public water supply. Water supply serves as a typical example of the non-mosque related services that the institution of waqf was a vehicle for. Water supply is also a type of service, or public infrastructure central to both Yemeni and western development discourses and thus it is a shared, common focus that transcends the secular/religious divide or the divide between Islamic studies, history, and development studies. This book provides a legally oriented ethnographic description of a truly local mode of management of public resources—a local mode that should not be overlooked in the ongoing quest to find locally accepted legal and political vehicles for managing public, common good.

1 Waqf as Public Infrastructure and Welfare in Muslim Societies

In the study of Yemen, anthropologists and social historians have been reluctant to look into how local economic and legal institutions were integrated into and related to broader and regional structures of Islamic law. The importance of waqf or public foundations in local economic and legal life in Yemen is one such field that has been relatively under-represented, with a few exceptions;* this is largely because waqf as a phenomenon is situated between the usual foci of historical-ethnographic and Islamic disciplines. I discuss this further in chapter 2.

The institution of foundations (waqf, awqaf) in Islamic law has been central to everyday life in the Middle East for centuries, especially in the cities. It is easy to forget how important infrastructure is for a society: What would one do without public wells, schools, scholarships, and stipends for the poor, etc.? And what does it mean that these services are public? What role does "the public" have in taking care of the weak and those in need? What types of discourses of "public affairs" existed? Was there a notion of “welfare society"? Did this overlap with religious values only? Premodern concepts from the Middle East seem to centre around different combinations of customary, local and tribal law, and of course, Islamic law (sharia). Islamic law was undoubtedly the most “universal” and formal of those mentioned. It was also more situated in writing and written texts than customary or local law.

4 Anexample of such an exception is the work of Brinkley Messick, who I refer to in several places in this book.

11 A Non-State Yet Public Legal Institution

In premodern Islamic law there were mainly two categories for public management and the redistribution of resources: public or charitable foundations (awqaf amma, khayriyya) and the common property of Muslims (bayt al-mal). The latter, bayt al-màl, was usually managed by the ruler (in Zaydi Yemen; the imam) and held as state property. One could say that state property was a type of public sphere in which there was a good deal of money in circulation, but most of this served to support the state itself. Clearly, zakat and the bayt al-mal were important political tools for the state rulers.

The public foundations, in contrast to the public treasury (bayt al-mal), were only partly controlled by the state. The state often ascribed to itself the responsibility of inspectorship (nazara) and legal guardianship (wilaya) over wagf that had no private guardian (mutawallī). However, according to most interpretations of Islamic law, foundations could be made and managed completely without interference from the state. From this perspective, public foundations are “non-governmental” At the same time, Islamic law provides the state, or the supreme Islamic legitimate authority, with the right to interfere in the management of the public foundations if they are misused or in need of protection from usurpers. Thus waqfis not entirely non-governmental.

Waqf could be made for both private (waqf ahli, dhurrī) and public ('amm, khayrī) purposes; this book focuses mainly on the latter. It must be noted, however, that the distinction between the two categories is often deliberately blurred, as I demonstrate in detail here.

From a legal perspective, waqf consists of a transfer of a property or a right from a private owner to a beneficiary, such that God theoretically becomes the new owner and the beneficiary has the right to its use or benefit (usufruct, manfa'a). In the case of a public building, a school, a water stand or a house for the poor, the right of use would be to gain access to these services and physical structures. Those holding the right of use were called “beneficiaries” (al-mawgūf 'alayhim, masrif) and in a public wagf this right was open to anyone and not restricted, sold or inherited. In a private waqf these rights could be transferred to new generations according to specific rules, but not through inheritance proper or sale. This type of waqf is usually called “family waqf" (waqf dhurrt, —ahlī, ox—khass).

From a religious and theological perspective, waqf was seen as an excellent form of charity, a so-called “continuous charity" (sadaqa jariya): The one who gives something as a foundation (the founder) has performed an act that

5 Thereare complicated jurisprudential rules related to the prohibition of inheriting or selling a wagf; to a great extent these can be circumvented, as I demonstrate in chapters 6 and 7.

produces continuous merit from God (ajr, thawab), even in the future, in the period after the death of the founder and before the day of judgement. According to a well established hadith (a saying or an act of the Prophet), which can be found in several different versions, man can only obtain such a continuous merit from God by leaving something good behind him in the world, something that falls under one of the following three categories: Continuous charity, useful knowledge or a good descendant remembering and praying for him.9 All other types of good deeds stop at the time of death. In Islamic legal theory (fiqh), in debates concerning wagf it is stated that wagfis such a continuous charity, just mentioned by another term. The term wagf as referring to charitable foundation is not found in the Qur'an and rarely appears in the hadith. Other types of charity, such as charity (sadaqa) intended to help a poor person, only earn the giver reward one time. These two aspects, continuity (ta'bīd) and a good and pious purpose or intention (qurba, taqarrub) have long been at the very core of Islamic waqf theory; at the same time they have proved problematic, since they are difficult to define in practical terms that are legally effective and useful in daily life. In practice, waqfs were often made to circumvent inheritance rules, and to keep large estates of land under control of the head of the family or the clan. If not held as waqf, land must be divided over the generations according to the Islamic rules of inheritance. Thus without endogamous marriages, a family can lose their land if daughters marry outside the family, as their offspring belong to another patrilineal clan (as demonstrated in chapter 5).

Public foundations could also be drained of resources by actors like the founder's descendants, the administrators or guardians, or the tenants of the assets, any of whom might use grey areas, or ambiquity in the law. Grey areas and ambiguities in the jurisprudence ( fiqh) meant that it was possible to circumvent the law by legal ruses (Ala, hiyal). Such circumventions often became the new rule if they were allowed to continue; they became recognized at the legal level in courts, though not entirely in an ideal juristic sense and according to the ideal definitions of a waqf.

Doctrinal theory and contextualized legal practice can at times be so far apart that the historian and the anthropologist become lost in juristic details that may never have been practiced in reality outside the academic circles of the law schools. In practice, the two aforementioned conditions— "continuity" and “a good, pious purpose" (qurba)—were subject to compromises in daily

6 This is a well-known hadith that appears in books of figh; it was also quoted by several informants. 7 Again, with some differences among the schools of law, as I elaborate on later.

interactions with the mundane, social, real world. These compromises were reincorporated into the legal theory under the legal maxims of “custom” (urf) and “(public) interest” (maslaha).8 Judges also had a limited power to enforce pure theory and had to follow established court practice and to a certain degree the wishes of local elites. In reality, the power of the patriarchal, extended family and clans affected the formation of the institution and law of public wadqf. In that respect, waqf law is very much situated in a language of private contractual law, where wagf was seen as a private legal personality? in a community among other private owners, and much less under “public law,” yet the public law component should not be underestimated, and we return to it below.

1.2 The Transition to the Modern World

In the twentieth century the old public foundations in the Islamicate world were overtaken by swift economic development as new colonial and later national infrastructures were built. This new infrastructure was owned and managed by the states themselves, not as independent or local foundations. The individual wagfs, and the institution of wagfs as such, were often perceived by the secular-oriented elite as something premodern and old-fashioned, and as something belonging to the religious sphere rather than the civil, public sphere. The old public foundations were often administered by religious scholars (‘ulama’) and conservative actors who were not educated in modern sciences and administration. The old hospitals, orphanages, water stands, wells, Qur'anic and sharia schools were seen by many as remnants of the past that were not terribly useful. Here, it should be noted that the process

8 The main chapters in this book provide an in-depth study of such an incorporation of “interest" and "custom" into the corpus of legal rules.

9 There is a general argument that refers to Schacht, who states that "Islamic law does not recognize the juristic persons." J. Schacht, An Introduction to Islamic Law (Oxford: Oxford University Press, 1964), 125. This is re-stated in the EJ? article on wagf. R. Peters, D. S. Powers, Aharon Layish, Ann K. S. Lambton, Randi Deguilhem, R. D. McChesney, M. B. Hooker, and J. O. Hunwick, "Waķf” in Encyclopedia of Islam, second edition, ed. P. J. Bearman, Th. Biancuis, C. E. Bosworth, E. van Donzel, and W. P. Heinrichs (Leiden: Brill Online, 1960—2004), 1:59-99. Doris Behrens-Abouseif argues that this is a matter of definition and that there are arguments in favour of defining waqfas a legal personality. Doris Behrens-Abouseif, "The Waqf: A Legal Personality?" in Islamische Stiftungen zwischen juristischer Norm on sozialer Praxis, ed. Astrid Meier, Johannes Pahlitzsch, and Lucian Reinfandt (Berlin: Akademie-Verlag, 2009). The Yemeni waqf decree no. 63 of 1977, article 4, explicitly states that the ministry of awgāfis to be considered a legal personality (shakhsiyya i'tibariyya). ‘Abd al-Malik Mansur, al-Awqaf wa-Lirshād fi mawkib al-thawra (Sanaa: Wizarat al-Awqaf wa-l-Irshad, 1987), 292 [henceforth referred to as al-Mawkib].

of modernization took quite different directions in different countries of the region.!? Areas with little state influence, as in large parts of Yemen, saw less radical change. Much of the land and the assets that belonged to these foundations were often covertly taken over by private individuals, rich landowners, bureaucrats in the waqf administration, or overtly by the state itself. Below, we see how the advent of modernity has affected the waqfs (pl. awqaf) in Yemen (especially in the former Yemen Arab Republic or Northern Yemen).

The mosques did remain as waqf after the onset of modernity, and their numbers multiplied. Mosques had been managed as waqf, such that each mosque had its own sources of waqf income. When the post-colonial nation states were founded, most of them created a separate ministry for foundations (also called endowments, or religious endowments), typically called the “ministry of awgāf” often with the addition of the words "religious guidance" (irshad). These ministries were responsible for all the public foundation properties and thus the finances of the mosques, and for the regulation of the ideological activities related to them. What in the mediaeval period was a fledging system of supervising various types of public foundations now became a “ministry of religious affairs" This ministry often took on a strong ideological function and came to be used by the state to integrate religious activities into frameworks that the state could control.

The fact that there were once, not so long ago, public foundations that aimed at providing services to people and the society, and that these were also to a large extent private and not state controlled, now tends to be forgotten, both by religious scholars and ordinary people. Occasional attempts are made to revive the institution of waqf, but it is difficult to point out clear trends toward this. Some reforms have been made in some Gulf states and interesting legal revivals can be found in Malaysia and Indonesia. In Turkey, foundations, although heavily reformed, remain an important part of civil society."

Because wagfis often seen as a part of a religious field, many secular actors are reluctant to engage in a "religious" Islamic discourse over which they feel they have little control. On the other hand, some of the most conservative religious forces, the so-called Salafis, are reluctant to recognize the institution at all, since most of the waqf rules are not mentioned, at least not literally, in the

10 Foran overview, see Franz Kogelmann, “Die Entwiklung des islamischen Stiftungswesens im postkolonialen Staat. Prozesse in Ägypten, Algerien und Marokko,” in Islamische Stiftungen zwischen juristischer Norm on sozialer Praxis, ed. Astrid Meier, Johannes Pahlitzsch, and Lucian Reinfandt (Berlin: Akademie-Verlag, 2009).

11 See, for instance, chapter 2: “Waqf and Islamic Finance: Two Resources for Charity,” in The Charitable Crescent: Politics of Aid in the Muslim World, ed. Jonathan Benthall and Jerome Bellion-Jourdan (London: I.B. Tauris, 2009).

Quran and only to a limited extent in the Sunna. For Islamists, transactional law such as wagfis not given priority of interest over more politically potent and popular parts of the law, such as ritual law (i.e., law that relates to matters of worship). Waqf legal theory is necessarily rather academic in nature and must somehow be related to fiqh (Islamic legal theory)” as formulated in the classical law schools, therefore making it difficult to popularize, especially given the large gap between the ideals and realities of law in the specific legal field of waqf.

Generally, when foundations are created, the founders (waqif; wāgifūn) also make a written document (waqf document, waqfiyya) that is made public and/ or entered into public court registers. These documents contain detailed information about who established the foundation, from what assets, and how it should be administered in the future. Even today these documents can be very troublesome, particularly when they reappear after decades and lead to conflicts over who actually owns what. These documents include a standard formulae stating that the individual waqfs are the property of God, and "that they cannot be sold, cannot be given away, cannot be inherited, until God inherits the earth and those upon it.”

2 Field, Scope, and Focus

24 Yemen, Local Law, and Waqf

Yemen is a mountainous, in large part tribally organized (although mainly sedentary), poor country located at the southwestern corner of the Arabian Peninsula. For most of the Islamic period, the agriculturally marginal northern highlands have been beyond direct government control and have been governed by local sedentary tribes, while the south, the coastal areas, and the western mountains have been more feudal and politically stable. Although egalitarianism is portrayed as a crucial tribal value, especially in the north and northeastern areas where tribalism is strong, local shaykhs and elites tend to own more land than others and they represent the government locally. They thus connect the local communities with the state through ties of patronage. In the highlands, prior to 1962 the central state was headed by the (Zaydi) imam and often ruled from Sanaa with the military aid of the northern tribes, who extracted taxes from the more politically docile, but agriculturally fertile south and west. Tribal leaders and local elites received percentages of the collected taxes and

12 Fiqh means “legal theory” the academic science of Islamic law. I elaborate on this in the next chapter.

FIGURE1 Map of the northern (western) part of the Republic of Yemen. COPYRIGHT ERIK GOOSMANN.

filled important positions in the state. In the past the education system and thus the basis for the legal system was geographically fragmented, mainly outside government control,? and to a large extent funded by local waqf and run by local ulamā”, scholars of Islamic law. From the tenth century CE, Zaydism gradually became the most influential form of Islamic doctrine in the highlands, and was more or less prevalent around and north of Sanaa after

13 The contrast to Egypt and al-Azhar is striking.

1324.14 The basic tenets of Zaydi state theory are largely oppositional,!5 and together with hundreds of small rural centres of Islamic learning (hijra, hijar) each with their own tribal patronage, a semi-autonomous legal system emerged, one that was difficult for the elites in Sanaa to control. It produced a perception of law as something greater, more lasting, and more legitimate than the government or the state itself and at times when the state was weak or even absent, significant aspects of the legal system were still applied locally and effectuated in accordance with local needs. Islamic law, tribal law, local customary law, and state law merged and were codified in ways that differed slightly from area to area and period to period. While the contemporary waqf law was constructed by moder state institutions, it still contains strong elements of the aforementioned legal ideologies, especially Islamic legal theory ( fiqh); we return to this point in more detail, especially in chapters 5, 6, and 7. Over the centuries, waqfs have been used by actors in local communities and notaries and judges have served the local societies' needs for regulating and sanctioning local ownership structures. This was and still is mainly done through the language of Islamic contractual law; each contract or ownership document represents a public confirmation or transfer of a set rights from one legal person to another, and conveys the legal strength, time period, and legal validity that the users request. Not all dispositions were equally important. A transaction that was very important, the validity of which had to be strong, would require prominent, perhaps even nationally renowned witnesses. An example here is the inheritance division of the land of a shaykh in Rayma; the document, which was shown to me, had been signed in the 1950s by the judges of the Supreme Court in far away Ta'izz. Important waqf documents similarily involve a large number of witnesses, more than the two required in Islamic contractual law. At the opposite end of the scale we find very simple waqf documents, the type that can be drawn up by any person in the village able to write and thus act as a notary. Such a simple waqf document would be much cheaper to set up, while the elaborate wagfs involved paying for access to the right judges and inviting the right witnesses. Sometimes the founder of a waqf did not want it made more "formal" than necessary; if the waqf was made simply as a strategy for other means, he or his children might more easily

14 For the early spread of Zaydism, see David Thomas Gochenour, “The Penetration of Zaydi Islam into Early Medieval Yemen" (PhD thesis, Harvard University, 1984).

15 This refers to the well-developed doctrines of polity in Zaydism. The doctrine of khurūj is particularly important, as it states that it is a duty to overthrow a ruler that is “unjust.” Throughout Yemeni history this doctrine has often been used to legitimize imam pretenders aiming to establish a polity. However, once in power, they must fight off other pretenders both in scholarly matters and militarily.

revoke it and privatize it later. Revocation such as this was only possible if, originally, it was only "sufficiently" strong and, for example, not entered into public registries.

Minor contracts could be oral, yet most of those involving permanent transfers of assets were made in writing and the notaries' or judges' handwriting acted as a proof of authenticity, in addition to the two required witnesses. In this way, the contracts were valid even after the original parties passed away, or valid in a larger geographical area, as the contracts did not depend on local face-to-face knowledge of the villagers. Yemen's thousands of agricultural terraces all have individual names and are defined in such written contracts sanctioned by the local legal system, which is more or less respected by the local community and the local elite.

In this book I am concerned with access to agricultural lands that produce a significant surplus every year, though other forms of assets such as real estate and urban building plots are also important. In waqf, these assets were donated to beneficiaries, either private or public or a mix of the two.

2.2 Understanding Waqf in Its Social Context

The general aim of this book is to deepen our understanding of the role of the institution of public foundations (waqf) in Yemeni society, both in the past and the present. In the Yemeni context, there has not been much research undertaken on this topic. Because of Yemen’s particular history, landscape, and legal traditions, an extrapolation of academic knowledge of waqf studies from, for example, the Ottoman context, must be made with caution. Often academic texts that do treat this topic digress into the problematic relationship between the doctrines and theories of Islamic law on the one hand, and the established, practiced law on the other.

The difference between these two is arguably not only an issue of "theory" versus “practice,” but rather, as I argue in the book, more a landscape of different debates and contestations of legitimacy and validities that only partially overlap. As I elaborate below, all these debates have their own "theory" and also “practice.” For instance, the scholarly debates in Islamic law are situated in texts and contexts that span centuries and continents, while the everyday waqf practices in small rural villages are mostly undertaken by actors who have no insight into the details of theoretical law, and who may even be illiterate. They have their own perception and version of the law in both norms and practices, and these also deserve academic representation. These two “fields of waqf legal theory and local perceptions and practices of waqf, are analytically separate study objects, yet are strongly interrelated. This book focuses on and conxtualizes this interrelationship between Islamic scholarly jurisprudence ( fiqh) and local forms of law.

2.3 Defining the Geographical, Historical, and Social Field

The area under scrutiny in this study cannot be defined absolutely in geographical space and historical time. Sometimes the relevant field is a specific village, at other times it is the wider intellectual Islamic tradition of Islamic law. I usually use the term “Yemen,” though Yemen is a large and diverse area. Most of the legal texts and cases are from Northern, Upper, Zaydi Yemen and most are less than 500 years old. Most waqf and other legal documents!6 are less than 200 years old and come from the wider Sanaa area. Narratives and recorded memoirs span the lifetime of living informants, the majority from Sanaa, but I also made several trips to other cities and regions in Yemen, such as Zabid, Rayma, and Hadramawt. Waqf in Yemen is not necessarily best understood when separated into “Zayd?” and “Shafi” law, or divided into "Oāsimī” or "Republican" waqf practices. The resemblances are many and sectarian and historical divisions are not always analytically fruitful. As I demonstrate in this book, some of the main, reoccurring legal problems that relate to human agency are the same in Zaydi and Shāfiī areas and are found from the Qasimi imamate (from 1636), or even before, and until today. Such "legal problems" or "grey areas" are great opportunities for us to see whatis actually going on in the field, much more so than analysing rules or cases dealing with “the ideal waqf”

2.4 Wagfand the Development Sector: Engaging in Islamic Law

The need for more knowledge about the role of wagf in Yemen is not purely academic. The development sector is continually looking for ways to anchor the legitimacy of its infrastructure projects in the social and cultural web of local communities, especially in a weak state society like Yemen. They are looking for ways to set up, administer, and create types of project ownership that increase the locals' perception of the legitimacy of development projects. The question of whether the public waqfis a suitable institution for the use of the development sector cannot be fully treated in this book; however, certain key issues are clarified. Arguably, the questions that can be raised on the basis of this book are fundamental to those who wish to establish such answers and to use the concept of waqf actively in their development projects. As a part

16 At my request the ministry of awqaf provided fifty documents, not all of which were wagf documents. I have also collected and read a similar number of published and unpublished waqf documents, although several of them were shown to me on the condition of anonymity.

of Islamic law or sharta, the term waqf is readily associated with the many negative connotations of "Islamic law" often found in non-academic, western discourses. At the same time, as a means of managing the public good, the institution of the waqf incorporates fundamentally universal aspects that are not endemic to Islamic law or Islamic societies; wagfis not a concept that has been fixed once and for all, but rather a set of ideas and practices situated in specific historical and social contexts. Claiming that wagfis suitable, or not, for use in the development sector is simply impossible without also engaging in a wide range of local and contemporary debates concerning what waqf should be. Perhaps, hypothetically, only certain parts of the local understanding of waqf will be found to be compatible with the standards of the development sector; that is, some aspects of the concept can be used and other parts must be rejected. In any case, it is necessary to engage in the debate, even if the arguments must take the form of *sharīa-language” Choosing to reject such a dialogue and instead introducing a new, imposed sets of morals and *concepts of public good" risks total failure if the locals do not adopt the discourse and see the compatibility. Not only will development aid always carry a political dimension, but it will also carry a legal and institutional aspect. This book provides new background information that may facilitate further research and debate on these topics.

2.5 Thematic and Methodological Focuses

The book has the following methodological focuses, both of which are related to the construction of legitimacy, authority, and validity in waqf law and practices: One is a focus on the knowledge! in use in waqf practices and the second is a focus on certain problematic "gray areas" in the legal theory (waqf fiqh).