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

FLUID JURISDICTIONS (2020) and Solid Perpetuities

Editors’ Note: Continuing HistPhil‘s forum on waqfs, Leilah Vevaina reviews Nurfadzilah Yahaya’s Fluid Jurisdictions (2020), while discussing her own research on religious endowments in India and the Straits Settlements. Vevaina writes: “This axis of what colonial authorities recognized as public, and hence, as charitable giving, versus familial hence private giving, was the key evaluator of why endowments for ancestor worship ceremonies within the Straits settlements and Hong Kong were void, while strikingly parallel endowments in India were allowed perpetual life.” Illustrating the importance of legal precedent on religious endowments across the British Empire, and yet too, the identities of these various judges, Vevaina notes: “These very cases from the Straits were then cited in India to invalidate the Zoroastrian muktad (ancestor remembrance) trusts only to be finally turned over when a native Parsi judge had the will and power within the judiciary to frame the case in such a way as to argue for the charitable aspects of muktad trusts.”

On two occasions, I have had the pleasure to see fellow forum contributor Nurfadzilah Yahaya present her book, Fluid Jurisdictions: Colonial Law and Arabs in Southeast Asia (2020). And both times, I could not help to notice all the ways that her research is akin to mine, but also the very interesting differences that emerge between the social and legal lives of Arabs in the Straits Settlements, about which Yahaya writes, and those of Parsis in Bombay-Mumbai, the subject of my own work.

My research in India is an ethnographic study of how Parsis (Indian Zoroastrians) utilize the charitable trust to create very particular property relations in the city. From the mid-eighteenth century, Parsis and other minority merchant groups were keen endowers of their wealth, not only to raise their social status and earn tax exemption, but also to build religious and civic infrastructures to support and protect their minority lives. During the colonial period, wealthy Parsi individuals endowed their fortunes and great estates to their community, creating beneficiaries of other native Indians and their co-religionists.

By the nineteenth century, several Parsis in Bombay were prominent natives within the colonial system and were heavily influenced by British models of education, law, and charity. By 1865, lay Parsis in the community even drafted a Parsi communal code that was recognized by the British. Here Parsis took on the management and delineation of the law, regarding their own religious practice and life, by harnessing the law as judges, practitioners, and litigants rather than pushing against it, a process that Mitra Sharafi (2014) describes in much detail in Law and Identity in Colonial South Asia (2014). The Parsis used and continue to turn to the law extensively, I argue, due to their use of trusts, an econo-legal technique that straddles both secular and religious life.

Yahaya’s Fluid Jurisdictions explores the legal lives of Arabs in the Strait Settlements, who, she points out, were equally litigious, but did not enter into the basic infrastructure of law as did the Parsis in India. While her work offers such rich details, and as a legal historian I learned much from reading it, it also points to much larger questions and themes that appeal to a wider audience outside of legal history, particularly to scholars of the postcolonial world. In this piece, I will examine what I find so fascinating about endowments: their ability to spill over and entangle so many spheres of social life, from the economic to the moral. Governing bodies often try to narrow this focus, striking down the perpetuity or the charitable status of many trusts. This management of the capacity of endowments keenly reveals very particular ideals of capital accumulation, land productivity, and even what constitutes religion.

In my forthcoming book manuscript, Trust Matters, colonial law and legal cases do not merely provide context to the contemporary lives of citizens of Mumbai, but for communities like the Parsis, these statutes and cases have vivid echoes in their daily lives. I will comment most on Yahaya’s Chapter Six, “Compromises: the Limits of Diasporic Religious Trusts,” as it examines the utilization of the Islamic endowment, the waqf, in both its private and public forms.

A large point of Yahaya’s book is understanding the work of law, and especially the colonial deployment of law. In 2019, I wrote a chapter on the different ways colonial judges dealt with cases on religious endowments in India and the Straits Settlements (Vevaina 2019). In it, I discuss Lauren Benton’s Law and Colonial Cultures (2002) and its emphasis on how law was used to tie various parts of empires together and laid a common ground for political, economic, and cultural exchange. But not all ‘native’ endowments were supported and recognized by the British across their empire. The tong, the Chinese endowment, in British Malaya and Hong Kong, was not, while the respective endowments of Hindus and Muslims were. (Note: Tang in Mandarin–tong in Cantonese–literally a hall or ancestral hall which denotes lineage estates, allowed families to build complex corporate land ownership structures within the idiom of filiality for ritual and ancestral veneration).

The tong was seen to go against the British avoidance of perpetual endowments. This uneven application of the ‘rule against perpetuities’ becomes very interesting as seen through various cases within the British Empire. British jurists asked, was the endowment in concern a valid exception to the rule since it was for public charitable purpose?

Much like Yahaya shows in the case of Arabs, the judges in the Straits Settlements continually rejected Chinese ancestral worship as a charitable cause, as the distribution of food within the ritual was only within the family. If the tong strictly belonged to the world of family inheritance (private) or business and corporate law, this had critical implications to the way these communal groups could accumulate and utilize religious wealth. For the Parsis, in Bombay/Mumbai, this kind of decision would have had a devastating impact on the ability of this minority group to nurture its population and survive in the city scape.

In particular, viewing these issues in terms of secularism offers the vantage of seeing the spaces wherein the law marked certain activities as religious and others not. Ritu Birla’s Stages of Capital (2009) examines the ways in which the colonial government in India began to carve out preferred avenues of philanthropy through legal regulations on giving (and keeping) and in doing so reaffirmed notions of public and private. Laws governing religious endowments detailed not simply how endowments would be governed and taxed, but what actually constituted religion and legitimate religious practice (Birla 2009; Chung 2003; 2010). This axis of what colonial authorities recognized as public, and hence, as charitable giving, versus familial hence private giving, was the key evaluator of why endowments for ancestor worship ceremonies within the Straits settlements and Hong Kong were void, while strikingly parallel endowments in India were allowed perpetual life.

These very cases from the Straits were then cited in India to invalidate the Zoroastrian muktad (ancestor remembrance) trusts only to be finally turned over when a native Parsi judge had the will and power within the judiciary to frame the case in such a way as to argue for the charitable aspects of muktad trusts. Having an orthodox Parsi on the High Court to which many Parsis brought their cases conferred an enormous advantage to the legitimacy and protection of their endowments. By following how these cases interpreted what constituted religion along the axis of the private and the public, my 2019 work on adjudicating the sacred shows that, while the work of secularism is conducted by diverse actors like native judges and seemingly innocuous property laws, its effects remain uneven and asymmetrical even within a ‘common’ law. Akin to this, Yahaya states, “British legal authorities regulated the class of beneficiaries of waqfs and by doing so appointed themselves the executors of the common good of the colony” (Yahaya 2020: 153). By regulating endowments, these judges were regulating much larger issues of what was valued in the colonies.

One huge obstacle for many actors to deploy the law was the cost of litigation. In Law and Identity in Colonial South Asia, for example, Sharafi sees a shift in Parsi use of the courts from religious legislation to litigation, especially litigating over trust matters from the nineteenth into the twentieth century (2010, 21). One clear reason for this was the greater use of trusts over this period, but also the fact that when trustees went to court, the trust paid the legal fees. So trustees would have no personal liability or risk if they went to court and lost. While Sharafi’s research covers the colonial period, this issue of liability still holds today in India, and is a big cause of disagreement in the Parsi community, especially with high profile cases, costing crores of rupees. Huge amounts of trust funds have gone toward fighting long and sometimes intractable legal cases in Bombay High Court, and even up to the Supreme Court, only to be ended with mediation.

Scholars of Islamic endowments in India, Singh (2008) in particular, have shown the ways and degrees to which assets accumulated or disbursed through legal instruments can have lasting effects on the relative wealth and poverty of a community. Particularly, the asymmetrical application of these regulations can serve to privilege certain religious groups over others within the same jurisdictions. Over time, the wealth and kinship ties accumulated by perpetual charitable endowments have the potential to be a centrifugal force in communal and religious life.

Nurfadzilah Yahaya’s work points to a larger relation: As Arabs in the Straits were encouraged to settle more public waqf in addition to their family endowments, they ended up “entwining their descendants’ lives with the rest of the colonial population” (Yahaya 2020: 144). And this is a critical and under-acknowledged working of the endowment form. It allows for relationships to build both within and without a community. My research has shown that this is more often than not a fraught relation, involving courts, lawyers, and much money in fees, but it also has the effect of creating a tie between a minority population and others outside it, allowing for small groups to become both financially and morally invested and enmeshed with other communities around them.

-Leilah Vevaina

Leilah Vevaina is an Assistant Professor of Anthropology at The Chinese University of Hong Kong. Her research on the Parsi trusts and property is forthcoming in her book manuscript, Trust Matters: Religious Endowments and the Horoscope of the City, with Duke University Press.

References:

Benton, Laura. Law and Colonial Cultures: Legal Regimes in World History, 1400-1900. Cambridge: Cambridge University  Press, 2002.

Birla, Ritu. Stages of Capital: Law, Culture, and Market Governance in Late Colonial India. Durham and London: Duke University Press, 2009.

Chung, Stephanie Po-Yin. “Chinese Tong as British Trust: Institutional Collisions and Legal Disputes in Urban Hong Kong, 1860s–1980s.” Modern Asian Studies 44, no. 6 (2010): 1409–1432.

——-. “Western Law vs. Asian Customs: Legal Disputes on Business Practices in India, British Malaya and Hong Kong, 1850s–1930s.” Asia Europe Journal 1, no. 4 (2003): 527–539.

Sharafi, Mitra. Law and Identity in Colonial South Asia: Parsi Legal Culture, 1772-1947. New York: Cambridge University  Press, 2014.

Singh, Anantdeep. “The Underdevelopment of India’s Muslim Minority: An Institutional Analysis,” PhD Dissertation, The University of Southern California, 2008.

Vevaina, Leilah. Trust Matters: Religious Endowments and the Horoscope of the City. forthcoming with Duke University Press.

———. “Adjudicating the Sacred: the Fates of ‘Native’ Religious Endowments in India and Hong Kong.” In The Secular in South, East, and Southeast Asia, 261–285. Springer, 2019.

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

 

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