The Role of Legal Doctrine in the Decline of the Islamic Waqf: A Comparison with the Trust

Abstract

The Waqf and the trust have an ancient, intertwined history. However, whereas the Waqf has largely remained a static institution, the trust has proven remarkably flexible and responsive to changing conditions affecting intergenerational management of family wealth and its preservation. While there is a temptation to find clones in legal constructs of different cultures, care must be exercised to avoid simplistic or superficial generalizations. This is true of the Waqf and the trust. It would be intriguing to find comparable wealth administration and preservation constructs in these two great systems of law. This is simply not the case with the Waqf and the trust. True, at certain times in history both have been resorted to so as to avoid unacceptable wealth transfer regimes and external threats to family wealth. Yet, the trust has proven more resilient, increasing its domain over worldwide capital by offering an efficient means to manage private capital cross-generationally. The family Waqf, on the other hand, has continued to lose ground, a victim of its own rigid doctrine's inability to adapt to modem conditions, the absence of adequate adjudicatory mechanisms, and statist and populist concerns about alternative political power centers and economic inefficiencies. The stark contrast between these superficially similar institutions emphasizes those attributes of the trust and the system in which it functions that have played and are playing a role in its remarkable development as the vehicle of choice for intergenerational wealth management throughout the world. While the waqf may have been conceived as an ameliorative construct for the harsh inheritance rules of Islamic society and may have functioned successfully for long periods under different conditions, Its modern decline seems, in retrospect, readily predictable. The legal system, of which it is an integral part, and its related, highly stylized rule regime and undeveloped enforcement procedures, made any different fate impossible to achieve without ...