Forum on Waqfs / Philanthropy and Historical Research / Philanthropy and the State

The Unintended Effects of Waqf Litigation: A Review of FLUID JURISDICTIONS (2020)

Editors’ Note: Continuing HistPhil‘s forum on waqfs, Nada Moumtaz relates Nurfadzilah Yahaya’s Fluid Jurisdictions (2020) with her own research of waqf litigation in twentieth century Beirut, Lebanon. Moumtaz argues: “Beyond Yahaya’s explanation of waqf litigation among the Arab diaspora in nineteenth century Southeast Asia, I want to suggest—based on my own research of twentieth century Beirut, Lebanon—that there might have been something else going on in these litigations, other than the greed of heirs.” This something else, Moumtaz underscores, was a new understanding of land and economy “echoing those developed by European and American philosophers and theorists like John Locke” that “was becoming hegemonic worldwide in the early twentieth century.” Combined “with the new understandings of charity and religion, family waqfs as waqfs not dedicated to ‘religious’ purposes (read worship) or public benefit became ‘mere pieces of land.'” 

In Fluid Jurisdictions: Colonial Law and Arabs in Southeast Asia (2020), Nurfadzilah Yahaya masterfully shows the predicament of diasporic Arabs in the British Straits and Dutch Indies in the nineteenth and early twentieth century. Both colonial powers considered this community—which had sometimes lived in this region for centuries intermarrying with locals—as outsider to the region, intent on exploiting Natives and disloyal to their adopted homelands because they kept ties and sent remittances to their extended families in Hadramawt in Arabia. The Dutch for example classified many Arabs as Foreign Orientals and excluded them through legislation restricting their movement, places of residence, and dress, and through extra taxation of their commercial activity. The British for their part had declared the Straits “uninhabited” in 1858 and thus considered both Arab and local populations and their laws inexistent prior to British occupation. While the state excluded them from the Native population and the region, many of these Arabs, as men of wealth, had to rely on the colonial state to guarantee their marriages, wealth, and property. Thus, perhaps unwittingly, as we will see, the Arabs found themselves inciting and further entrenching colonial jurisdiction and legislation—playing into the hands of the same powers that sought to exclude them.

The dilemma, which Ghenwa Hayek in the context of Arabs in West Africa aptly calls “diasporic middleness,” is common to many groups across time and space that have fallen between categories of European and Native, Black and white, citizen and foreigner. These groups, such as the Iranians described by Neda Maghbouleh in the US, have had to negotiate aspirations to better lives where upward mobility is predicated on the dispossession of those that colonizers have deemed inferior. At the same time, the in-betweeness of these diasporic communities reflects the colonial policy of “divide and conquer,” which solidified forms of difference (be they religious or ethnic) among the colonized, most infamously the Algerian “Arabs of the Jewish faith” who were distinguished from the Muslim Arabs and were given French nationality (Schreir 2010).

In Fluid Jurisdictions, Yahaya illustrates the complexity of “diasporic middleness” by highlighting how the Arab diaspora’s actions in the legal system had the effect of consolidating colonial interventions in Islamic law and robbing Muslims—Natives and eventually themselves—of the power to shape Islamic law. The elite Arab diaspora voluntarily went to colonial powers and courts with their disputes over marriage and divorce demanding the application of “correct” Islamic law. This was a voluntary move as marriage was left by colonial powers to local courts using the religious law of each community under the newly created category of “personal law.” Under the guise of “correct” Islamic law, these Arab petitioners and litigants were actually pushing for the application of one view among the many that existed within the Islamic legal tradition. That is the case for example of a judicial divorce upon the disappearance of a husband, which Native courts granted following some schools of Islamic law while elite Arabs wanted to follow the opinion of another school that required certain knowledge of the husband’s death before granting such a divorce. Elite Arab claims of “correct” Islamic law against Native judges resonated with British colonial officers who saw the Arabness of the petitioners as an indication of the authenticity of their claims. One can see here how arabo-centric visions of Islam, among both Orientalist colonizers and Arabs, coalesced in a particular colonial setting to codify certain legal opinions at the expense of others that Islamic legal scholars would consider valid. If at first, as Yahaya describes in the book, Arabs brought these litigations requesting the intervention of colonial powers, they were most probably not aware that the end result would be the codification of one view that rendered their future views irrelevant through precedent and codification and by making further changes contingent on a legislative process that excluded them.

While elite Arabs brought marriages and divorces to colonial jurisdiction “voluntarily,” they did not have much choice when it came to litigation around waqf in the context of the British Straits. Indeed, because the immoveable property of waqfs was in British territory, waqfs were subjected to English trust law.

Yet, Yahaya explains that the British were not “particularly attentive” (155) to the various family endowments and it was only when beneficiaries and descendants of the founders brought litigation around these waqfs that these waqfs came under British scrutiny and adjudication. So here too mercantile elite Arabs had a hand in furthering colonial interference. Arabs were incited to litigate waqfs in British courts because of English trust law, whose Law against Perpetuities prohibited all but charitable trusts to be perpetual based on English understandings of charity. Charity in nineteenth-century English law followed a 1601 Elizabethan ordinance that included a list of twenty-one purposes considered charitable, which were restated at the end of the nineteenth century as the “four heads” of charity: the relief of poverty, the advancement of education, the advancement of religion, and “public benefit” (149)—definitions that were far from clear and led to a lot of litigation even in England.

This understanding of charity differed from Islamic understandings thereof, which most notably considered giving to family one of the noblest forms of charity. Based on English law, Islamic family waqfs would be invalid if examined by British courts, and that is exactly what heirs of founders sought to do: invalidate the waqfs of their forefathers. Thus, Arabs in the Indies reached out to British courts to annul some of these waqfs, against the dominant Islamic legal practice of making waqfs inalienable. But why were heirs attempting to revoke these waqfs? Yahaya suggests that they did so, so that they could benefit from the sale of the property.

Begrudged heirs are common characters in the history of charitable giving all over the world; in the US for example, the challenge of the Tilden heirs to the trust of their uncle even gave their name to legislation (the 1893 Tilden Act, which opened up the “four heads” of charity to general purposes). In Beirut Lebanon under the French Mandate in the 1920s, 30s, and 40s, I have encountered very similar litigation around waqf (Moumtaz 2018). I was puzzled: How could descendants of the founders go to court to try and sell what their forbears made inalienable? Had they forgotten that they were depriving their forebear of the heavenly rewards of his or her good deeds? After all, according to Islamic law, waqfs were an important way for founders to get close to God in the hereafter, as they would continue receiving rewards for their good deeds as long as their waqfs continued to benefit recipients. How did this waqf become a mere piece of land? Heirs have, since the earliest foundations, challenged waqfs and attempted to revert them to private property. As Yahaya points out, waqf was among the many instruments available to Muslims for property devolution: “each waqf represents a concrete, deliberate strategy, for the preservation or transmission of material assets” (144). As such, it is not surprising that heirs, disfavored by waqf terms, would challenge them, and that both Yahaya and I would find such cases in the 1920s and 30s.

Beyond Yahaya’s explanation of waqf litigation among the Arab diaspora in nineteenth century Southeast Asia, I want to suggest—based on my own research of twentieth century Beirut, Lebanon—that there might have been something else going on in these litigations, other than the greed of heirs. For starters, the scale of these litigations was vast and lead to the obliteration of most family waqfs (even if in the Straits, the British retained some of these waqfs, but changed them either into charitable ones or made them not perpetual). In an article titled “Is the Family Waqf a Religious Institution?” (2018), I suggest that the answer to this question hinged on changing conceptions of charity, religion, and economy, at a time when new legislation was making the reversion of waqf to private property possible (as had happened in the British Straits). Yahaya expounds the changes in understanding of charity and its linking to either public benefit or religion, now understood as worship. To count as a charitable trust in the British Straits in the late nineteenth and early twentieth century, a waqf had to either be religious or benefit the public, and so waqfs dedicated to family became regarded as outside the bounds of the charitable. As important, however, is what I hint at in my question of “How did this waqf become a mere piece of land?,” which is the secularization and financialization of land and its transformation into real-estate wealth that is part of the economy. In these understandings of land, echoing those developed by European and American philosophers and theorists like John Locke, property had to be “free,” change hands, be developed. Because of their inalienability, waqfs stood in the way of freedom of transaction. These understandings of land as part of the new sphere of the economy that needed to be made to grow conscripted the colonized (Arabs in Southeast Asia, Syrians and “Lebanese”); such European arguments about fructifying the land and its circulation to bolster the national economy were especially compelling to the colonized who were confronted with European economic and military power.

The French mandatory powers in Lebanon and Syria in the 1920s and 30s subjected waqfs to secular questioning, asking whether waqfs belonged to religion or the economy, and categorized them as either religious waqfs (which fall under the private religious law of the Muslim community) or simply made part of the economy (the now defunct family waqfs). Based on this new understanding of land and economy, which was becoming hegemonic worldwide in the early twentieth century, combined with the new understandings of charity and religion, family waqfs as waqfs not dedicated to “religious” purposes (read worship) or public benefit became “mere pieces of land.”

In this 2018 article then, I highlight the way that those who called for the end of family waqfs acted as conscripts: They were compelled by these new notions of land as part of the economy and by progress as tied to growing the economy. They acted using these notions to return waqfs to private property. In such a mode of writing history, I attempt to understand the conditions and discourses that made possible some of these beneficiaries’ actions.

Sometimes Yahaya writes in a similar mode, capturing quite poignantly these larger changes that circumscribed the options Arabs had, as when she argues that members of the Arab diaspora in Southeast Asia were “no longer the ‘authors’ of Islamic law and merely the ‘writers’” (32). This phrase embodies some of the most exciting work that the book does: showing the crucial political effects of everyday legal litigation about property and marriage, by subjects who might be simply going on about their daily lives, trying to capitalize on legal pluralism to advance their interests against wives, offspring, or forefathers, whether these were other Arabs or Natives. Unintentionally, these actions further entrenched the political sovereignty of the colonial powers by extending the reach of their jurisdiction.

At other times, however, Yahaya ascribes more agency to these Arabs, putting the blame of the increasing reach of colonial jurisdictions on Muslim lives on conscientious actions by Arabs rather than on the unintentional effects of these actions. “Arab elites,” she writes, “perpetrated lawfare on their fellow colonial subjects.” For a minority that was caught between a rock and hard place, suffering the exclusions the British and the Dutch imposed on them, the term lawfare suggests a conscious war by other means, which left me wondering about another form of agency, the political: what were the political stances of these elite Arabs? Did they (or some of them?) join uprisings against the British and the Dutch? Did they attempt to use pan-Islamism to challenge colonial rule, as the British were afraid they would?

At the end, however agentive or unintentional, the effects of these actions remain the same: a more circumscribed Islamic law based on colonial understandings thereof. This, to me, is an important lesson for those of us who are in-between, to consider effects rather than intentions, especially the larger political outcomes of everyday gestures and actions. It is a strong reminder of the need to think of the larger political context in which we operate, even if it means personal losses, in the short run, to those of us who are, in certain ways, more privileged.

-Nada Moumtaz

Nada Moumtaz is Assistant Professor in the Department for the Study of Religion and in Near and Middle Eastern civilizations at the University of Toronto. Her book, God’s Property: Islam, Charity, and the Modern State, is scheduled to be out in January 2021.

Cited Works

Maghbouleh, Neda. 2017. The Limits of Whiteness: Iranian Americans and the Everyday Politics of Race. Stanford, California: Stanford University Press.

Ghenwa Hayek. 2015. “‘Carrying Africa,’ Becoming Lebanese: Diasporic Middleness in Lebanese Fiction.” In Diasporas, Cultures of Mobilities, ‘Race.’ Vol.2: Diaspora: Memory and Intimacy, edited by Sarah Barbour, Thomas Lacroix, and Judith Misrahi-Barak, 99-114. Montpellier, France: Presses Universitaires de la Méditerranée (PULM).

Moumtaz, Nada. 2018. “‘Is the Family Waqf a Religious Institution?’ Charity, Religion, and Economy in French Mandate Lebanon.” Islamic Law and Society 25 (1–2): 37–77.

Schreier, Joshua. 2010. Arabs of the Jewish Faith: The Civilizing Mission in Colonial Algeria. New Brunswick, N.J: Rutgers University Press.

Yahaya, Nurfadzilah. 2020. Fluid Jurisdictions: Colonial Law and Arabs in Southeast Asia. Ithaca New York: Cornell University Press.

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