Илхамджан Исраилджанович Бекмирзаев,
Ташкентский исламский университет,
кандидат исторических наук,
старший преподаватель кафедры «Исламоведение»
Ilhomjon I. Bekmirzaev
Tashkent Islamic University,
“Islamic Studies” department
E-mail – firstname.lastname@example.org
Ханафитская школа Мавераннахра: анализ через закон Вакфа, разъяснённый Бурханиддином Махмудом аль-Бухари
Аннотация: Ханафитское право произошло и развилось во втором, третьем и четвертом столетиях хиджры в Ираке, но после четвертого к восьмому столетиям оно было разработано, главным образом, не в Ираке, а дальше на восток в Северо-восточном Иране и Средней Азии, тогда называвшейся Хорасан и Мавераннахр (Междуречье).
Ключевые слова: закон Hanafi, Mawarannahr, аль-Бухари, fiqh, waqf, фетва.
Hanafi school of Mawarannahr: An Analysis through the Law of Waqf as expounded by Burkhan ad-din Mahmud al-Bukhari
Summary: The Hanafi law originated and developed in the second, third and fourth centuries AH in Iraq, but after the fourth to the eighth centuries it was elaborated mainly not in Iraq but further east in North-East Iran and Central Asia, then called Khorasan and Mawarannahr (Transoxania).
Keywords: the Hanafi law, Mawarannahr, al-Bukhari, fiqh, waqf, fatwa.
The Hanafi law originated and developed in the second, third and fourth centuries AH in Iraq, but after the fourth to the eighth centuries it was elaborated mainly not in Iraq but further east in North-East Iran and Central Asia, then called Khorasan and Mawarannahr (Transoxania). The main centres were the cities of Balkh, Bukhara and Samarqand, before it reasserted itself in the near and Middle East and others. In this study, I will show within the framework of a specific legal institution of waqf and through a work hitherto understudied by modern scholarship, namely al-Muhit al-Burhani of Mahmud b. Ahmad al-Bukhari, that in the history of Hanafi law, this period represents the second major phase in the development of the legal system. Before going to the details, a brief introduction about al-Muhit al-Burhani (hereafter al-Muhit) shall be given. The author Burkhan ad-din al-Bukhari was a respected member of Al-i Burhan, the ruling family of Bukhara called sadr al-sudur, who were active between 495/1102 and 636/1238–9, not only in the sphere of politics but also as the main sponsors of learning in the city; among their members were a number of scholars including our Burkhan ad-din al-Bukhari. Al-Muhit can be characterized using the late Norman Calder’s terms as mabsut, i.e. the voluminous fiqh work, as opposed to the abridged works (mukhtasars). As the author records in the preface the book was based on the well-known authoritative Hanafi manuals of Shaibani, less known ones (nawadir) by the same author, as well as the views selected from the books that contain responses of Khorasanian and Transoxanian scholars (mashayikh). The latter consist of a number of books written or views held between the mid-fourth century and the early seventh century, i.e. just a few decades before the Mongol invasion. This is the period when the Khorasanian and Transoxanian imprint on Hanafi law appears most explicit. Politically at this time various dynasties were active in the region and beyond, including Samanids, Seljukids, Qarakhanids, Ghaznawids and Khwarazmshahs.
Mashayikh of Balkh, Mashayikh of Bukhara and Mashayikh of Samarqand. All other individuals were subsumed in one of these groups. In the al-Muhit the law is ultimately defined by a group ofmashayikh; Burhan al-Sahari‛a is one of them. The first zone of jurists, i.e. the founding figures and their immediate circle, always supplies the basics of law upon which the preferences ofmashayikh are grounded. However, if the basics are not supplied by these first jurists then the basics of any matter are determined by the mashayikh themselves. Below I will relate a number of examples in which the first zone of jurists laid down the basics of law and the second zone of jurists played the role of choosing which one of the views related will constitute the law. Then, I will give a few examples of how the jurists of the second zone continued to explore law through analogy or other forms of juristic reasoning, based on the already established principles.
Abu Hanifa’s opposition to waqf It is stated in zahir al-riwaya that, according to Abu Hanifa, a pious endowment is only legal and valid if the endower ties his act of endowment to ‘the aftermath of his death’ by way of bequest; if he does not do this, the act of endowment will be null and void. According to his two disciples, namely Abu Yusuf and Muhammad, this is not a requirement for a waqf to be valid. The question for the jurists of the second zone is to interpret away the implication of Abu Hanifa’s view, which seems to be an obvious opposition to the durability of the institution of waqf. This implication was even more serious, especially if we recall that the waqf institutions from the third/ninth century onwards provided the main source of income for social services in Muslim society, including education and judicial systems that had a direct bearing on the learned classes. Since the waqf was seen as indispensable, the entire law of waqf in the Hanafi legal system is based on the opinions of Abu Hanifa’s two disciples, whereas his own opposition is somehow accommodated into the system by way of interpretation. In order to show that Abu Hanifa was not against the idea of waqf, an interpretative strategy was employed. Thus, it is stated that a waqf was defined by Abu Hanifa as ‘sequestering the substance to oneself and giving away its yields to the poor and needy (habastu al-‛ayn ‛ala al-milki wa-tasaddaqtu bi-thamaratihi ‛ala al-masakin)’. Abu Yusuf and Muhammad defined it as ‘Removing its substance from one’s possession to the possession of God and making it sequestered in His possession and its yields to His servants.
Perpetuity A similar example of reducing the differences among the first zone of jurists can be seen in another matter. As is well known, one of the essential requirements of classical law is that a waqf must be perpetual. However, it seems that there is no unanimity regarding the application of this perpetuity condition. Already Abu Hanifa reads an endowment act as a non-binding declaration and states that if the endower does not refer to the aftermath of his death the property goes back to the inheritors after his death. According to Muhammad, perpetuity is a necessary condition; if, for example, one merely declares: ‘I endow my land (waqaftu ardi)’, i.e. without adding a phrase that suggests perpetuity (either explicitly or implicitly by way of enumerating the poor and needy as the final beneficiaries), this is not sufficient to constitute a binding perpetual waqf. The reason for this is that the endowment would either go to the poor, in which case being perpetual constitutes validity, or to the rich, which does not constitute a validwaqf owing to the lack of perpetuity. Thus, the author of al-Muhit continues, there exists a doubt that hinders validating a waqf. Khassaf, Hilal and Basrian Hanafis all agree with Muhammad. However, Abu Yusuf thinks that the mere utterance of the words expressing waqf (endowment) is a sufficient reason to establish a waqf. When the endower dies before making it perpetual, the property returns to the inheritors. According to some jurists of the second zone, says the author of al-Muhit, Abu Yusuf’s disagreement is not real; he is also of the view that a waqf must be perpetual, but, according to these latter jurists, these two imams disagree over what constitutes perpetuity. To Abu Yusuf the mere utterance of waqf phrases conventionally means ‘endowment to the poor and needy’ which in turn amounts to perpetuation, whereas Muhammad stipulates an explicit declaration of a phrase that denotes perpetuity. However, two great authorities, namely Tahawi and Sarakhsi, think that the disagreement between Abu Yusuf and Muhammad is real and state that if the phrase of perpetuity is not expressed, according to Abu Yusuf, the waqfbecomes valid until the death of the endower; once he dies it returns to the inheritors.
Bukhari relates a few more quotations from the first zone jurists favouring the view that perpetuation is also a necessary condition for a waqf to be valid and binding. After presenting the disagreement among the first zone of the Hanafi jurists, he adds that the mashayikh of Balkh opted for Abu Yusuf’s view, and then quotes Sadr al-Shahid who says ‘We do prefer this view. After this declaration, the subsequent development of the law of waqf was to be based on Abu Yusuf’s view. There is here a clear tendency to validate, as far as possible, any act of endowment that has occurred. Although the mashayikh favour Abu Yusuf’s view, which validates any phrase of endowment even if no phrase of perpetuity is included, the author of al-Muhit tries to circumscribe the implications of Abu Yusuf’s view as to the validation of waqf, as there is a disagreement among the second zone jurists over the true meaning of Abu Yusuf’s words. ‘Mashayikh of Balkh’ in this case probably refers to Abu al-Layth al-Samarqandi and his masters who all lived in or around the fourth/tenth century and whose views he collected in his famousFatawa Abī al-Layth; the ‘we’ in the words of Sadr al-Shahid probably refers to the Mashayikh of Bukhara, who lived in the fifth/eleventh century. The author of al-Muhit tends to prefer the view of the Bukharans probably due to the fact that he, as was pointed out before, belongs to a large family of Al-i Burhan who were active not only as judges or muftis but also as a political and economic power in the city of Bukhara during the late fifth/eleventh and throughout the sixth/twelfth centuries.
Endowment of moveable things The Endowment means in an original sense the endowment of non-moveable properties such as a house, a land, or a store, as the endowment is inherently associated with perpetuity. The validity of the endowment of moveable things is therefore challenged on the ground that a moveable thing intrinsically carries the meaning of temporariness. Abu Yusuf does not allow it, even if it becomes a custom (‛urf) among people. However, Muhammad accepts the possibility of endowing a moveable property when this becomes a custom among people, i.e. when they need it. Thus endowing a cow to the caravansary so that her milk is to be distributed to wayfarers or a book to a library to be read is valid, according to him. The masters of the second zone, including Sarakhsi, choose Muhammad’s view; this can be seen again as a sign of their using every opportunity to set upwaqfs. After presenting views of the first and second zone jurists, the author of al-Muhit turns to another jurist of Hanafi circles of the first zone, namely Zufar, a disciple of Abu Hanifa, who goes even further than Muhammad and admits the validity of the endowment of any movables including money, food etc. without even resorting to the aid of the custom. A certain disciple of Zufar, al-Ansari, relates that endowing money to the poor so that it brings profit through amudaraba partnership is valid. If Zufar’s view was not in favour of expanding the opportunities forwaqfs, no one would notice it. The author of al-Muhit relates a few examples of endowment of movables that were popular in his time, one of which is interesting: the people of Nihawand endow wheat seeds with the stipulation that they are to be permanently given to the poor peasants so that they cultivate them and return the amount they borrow. A clear tendency towards validating all sorts of waqfs is present in al-Muhit. In the XII-XIII Transoxanian debate on cash waqfs the proponents extensively used this tendency of validating all sorts of waqfs, which was present in the views of the mashayikh. However, the opponents, aware of this tendency of the juristic tradition, formulated their opposition to the cash waqfs not on the basis of the invalidity of the endowment of the movables, but on the technique used in loans, namelymu‛amala shar‛iyya.
The stipulations of the endower The law of waqf allows a great deal of leeway for the endower to formulate the operation of a waqf after its foundation. The well known maxim says that ‘The stipulation of a waqif is like the explicit word of revelation (nass), which means that it has the binding strength of revelation. Thus it is primarily his right to identify the beneficiaries of his endowment; he has the priority to appoint the trustee etc. A question in this respect arises as to whether he can identify himself as the sole beneficiary or one of the beneficiaries of his own endowment. According to Muhammad and Hilal, this is not a valid act of endowment; hence there is no waqf at all if he counts himself among the beneficiaries. However, Abu Yusuf regards this type of endowment as legal and valid. The author of al-Muhit, after presenting this controversy between these two first zone authorities, concludes that the Mashayikh of Balkh preferred the opinion of Abu Yusuf and consequently the fatwa is given in accordance with this. According to him, the reason behind this preference is that legalizing the endowers’ right to put themselves among the beneficiaries will stimulate and promote waqf establishment; after all the Prophet said that ‘One’s spending on himself is a charity,’ which is interpreted as endowed charity. The primacy of the endower can be seen in another example: the trusteeship or guardianship of waqf, i.e. the right to be in charge of disposing a waqf. According to Hilal and Khassaf, if a man endows his land without identifying himself or another person as the trustee, the waqf is valid and the endower has priority in undertaking the trusteeship of waqf. Hilal adds that ‘someone’ argued that if the endower does not identify the trustee then he has no power. The mashayikh identified this ‘someone’ as Muhammad due to the fact that, according to Muhammad’s principle, delivery of the endowed property is a requirement for the validity of waqf. Once he delivers without identifying the trustee, his link with the waqf stops, hence he no longer has power regarding this endowment. However, the first view, which recognizes his power in this endowment, emphasizes his proximity to the endowed property, finding an analogy in the case of manumitted slave whose guardianship lies with the manometer. A case from Fatawa Abī al-Layth raises the question of whether an endower has the right to dismiss the trustee: according to Abu Yusuf’s view he has the power even if he does not stipulate this right at the time of establishing the waqf. Muhammad, on the other hand, thinks that he has no power if he does not stipulate it at the beginning. Although the author of al-Muhit does not make it clear which view in this case is preferable according to the mashayikh, the rest of the chapter favours the view of Abu Yusuf, Hilal and Khassaf, who all give a greater role to the endowers. However, leaving a dispute unresolved by a preference of the mashayikh, a phenomenon that we sometimes come across in al-Muhit, may have another reason: it gives later jurists or judges latitude to form their preferences in actual circumstances. After all the law is a matter of interpretation.
Endowing to oneself A person’s endowment to himself is unacceptable, though there are among the first zone those who allow it; Abu Bakr al-Iskaf of the Mashayikh of Balkh made a distinction between endowing to oneself and endowing to others while stipulating that the endower himself will benefit from its yields. This peculiar distinction seems to have resulted from the fact that one’s endowing to oneself is nonsense. According to Abu Bakr al-Iskaf, the waqf is valid but will not be of benefit. It becomes a waqf for the poor and needy. In other words the stipulation is regarded as null and void, whereas the waqf itself is seen as legal. This is according to the view of Abu Yusuf, who validates all acts of endowment containing the wordwaqf or similar phrases. Endowing one’s property to one’s family, i.e. one’s children and children’s children and so on, is valid. However, when one’s lineage becomes extinct, one of the two views related from Abu Yusuf states that the waqf property should return to the inheritors, while Muhammad says that it will go to the poor; this is also the other view of Abu Yusuf. In other words according to this latter view, all dhurri/ahli waqfs are in the end a khayri waqf. If this is not assumed, then no ahli waqf would be conceived as valid.
Mashayikh employing istihsan: Waqf as a corporate personality? Islamic law does not principally recognize a fictive legal capacity, i.e. only real persons can undertake obligations. This poses problems especially for the institution of a waqf, which exists independent of a real owner. For example, when a waqf needs repairs and the administrator has no means to pay for it, can he borrow from others on behalf of the waqf, which will be repaid by its yields? According to Hilal, he cannot borrow, for a waqf has no ground or capacity (dhimma) to take on obligations. Although the poor and needy, who are the beneficiaries of a waqf, have the personal capacity, they are too many to be prosecuted in case of litigation. However, in a fatwa related from theFatawa Abu al-Layth, the jurist Abu Ja‛far commented on the view of Hilal as follows: This is true in analogy (qiyas), but when the necessity arises we leave aside the analogy. For example, if all the crops of a waqf land are eaten by grasshoppers and the administrator needs the crops as expenditure or the ruler demands from him the levy of the land, he has the right to borrow, the reason being that an analogy can be set aside when there is necessity. Nevertheless, he is better off doing that with the permission of a judge, as the latter has the general power over people. This is more effective in eliminating doubt regarding the establishment of obligation.
Mashayikh extending the principles to new cases, again through qiyas and istihsan In the case of an endower or one of his relatives becoming poor after he endowed his property, the jurists distinguish the founder of a waqf from his relatives. As to the relatives of the founder who later become poor, according to all mashayikh they are preferably entitled to benefit from the endowment, but the administrator of the waqf has the right to refuse them. Regarding the founder himself, Hilal states that he will never be a beneficiary of his own endowment. It should be recalled that in principle counting oneself among the beneficiaries of one’s endowment invalidates a waqf according to Hilal. Abu Yusuf’s view is ambiguous in this respect, but a stipulation that the founder will benefit from his endowment is at least regarded as acceptable in his view. Nevertheless, the mashayikh re-ask the question of whether or not he can be one of the beneficiaries of his own endowment if he becomes poor. Two jurists of the Balkh Mashayikhdisagreed on this matter; Abu Bakr al-Iskaf states that he cannot benefit from his own endowment, because this is nothing but counting himself as a beneficiary of his own endowment. Abu Bakr, however, is not in principle against the idea of endowing to oneself. He states that there is a distinction between this case where the endower counts himself among the beneficiaries at the time of founding the waqf and previous cases where the endower, upon becoming poor, is included among the beneficiaries of his own endowment. He thinks that in the former case, since the founder is the owner of the property at the time of founding the waqf, he has the right to retain some part of his property to himself. In the latter case however he is no longer the owner, so he can only benefit from it if we assume him to be the beneficiary of his own charity, which is exactly what is prohibited. Another Balkhi scholar, Abu Ja‛far al-Hinduwani, on the other hand, allows the founder to be a beneficiary of his own endowment if he becomes poor, simply because he is one of the poor and needy to whom the waqf is endowed. The ambiguity in designating himself as the beneficiary at the beginning of waqf formation is not present after his link to his property is cut. Abu Ja‛far finds an analogical case taken from al-Siyar al-Kabir of Shaibani which read as follows:
If the commander declares at the beginning of a war saying that ‘if I kill this enemy his spoil becomes mine’, then he kills him, he will not be entitled to the spoil, because his statement is formulated in a wrong way. However, if he phrases it as ‘whoever kills an enemy his spoils belong to him’, then the commander himself kills an enemy, he is entitled to get the spoil. A wrong formulation at the beginning disallows entitlement, while an initial declaration intended for others can be a ground for an entitlement a–t the end.
The Fatawa Literature as a Source for Social History In al-Muhit a number of waqf deeds were preserved. M. Khadr already published with French translations two of the waqf deeds of the Qarakhanid ruler Ibrahim Tamghaç Bughra Khan, one for a madrasa and the other for a hospital, both dating 458/1066. These deeds contain important historical records; however, this is not usual in fiqh and fatwa works as they usually do not name the parties involved in a case, nor specify actual historical settings. Despite this fact, al-Muhit-like fatwa books can be described as a kind of historical source, as they include many fatwas asked for not at some remote time in history in Iraq, but in contemporary Transoxania. For example, there is an interesting fatwa in al-Muhit, related from the Fatawa of Abul al-Layth (d. 378/989), which is about a madrasa. Thefatwa reads as follows: ‘If a man endows his land to the followers of a certain madrasa and does not name the beneficiaries as the students, this is to be understood as students, as this is what is conventionally meant in this situation. So no one other than students can live in this madrasa. This fatwa does not name the city or the madrasa, nor does it give any idea which madrasa is at stake, but it still shows that in the Samanid territory, the idea of a madrasa as a separate educational institution exists as early as the second half of the tenth century, almost a century before the Nizamiya Madrasa of Baghdad.
Conclusion It is clear that al-Muhit is a part of a special genre of legal writing that constitutes a bridge between the original Hanafi legal doctrine and its interpretation through fatawa literature. It is neither a fatwa book nor a textbook; it is even different from the voluminous mabsut books that emphasize, along with other things, the justification of law through scripture. On the contrary the main concern of this genre is to explore the law in fatwas and relate it to established legal doctrine, hence legal change.
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