Nature and Purposes

It is difficult to gainsay the importance of the waqf over the course of Islamic history. As one scholarly account of the early emergence of the waqf has indicated, “[i]t is not an exaggeration to claim that the waqf . . . has provided the foundation for much of what is considered ‘Islamic civilization.’”Footnote ⁴⁰ Sait and Lim offer an even more robust exposition on the historic importance of the waqf institution, as follows:

The general structure of the waqf is simple enough, and not particularly different across the principal schools of Islamic thought, Sunni and Shi'i. Essentially, an individual grantor, or waqif, dedicates his or her property in waqf to serve a pious purpose in perpetuity.Footnote ⁴² Importantly, the grantor must own the property outright, in what is known as mulk in Islamic parlance.Footnote ⁴³ Much agrarian property within the Islamic world, and Iraq in particular, has been classified since Ottoman times as ’amiri land.Footnote ⁴⁴ This land is technically owned by the sovereign, though a private person can have a right to transact with respect to it, known as the right of tasarruf. This right runs with the land to such an extent that over time it has become largely indistinguishable from mulk.Footnote ⁴⁵ One important remaining difference, however, is that the waqf cannot be created on ’amiri land. This is a distinction that proved important as modern states sought to assert greater control over the waqf.Footnote ⁴⁶

In creating a waqf, the grantor may specify beneficiaries, though the importance of specification depends on the nature of the waqf itself.Footnote ⁴⁷ For example, if the grantor were to make the very common endowment of real property for a mosque or other Islamic center of worship, such as a Shi'i Husayniya, then the beneficiaries would be, implicitly, anyone seeking to worship there. A waqf intended to feed the poor would more likely specify what class of individuals qualified for receipt of the funds. Similarly, if a grantor sought to create a waqf for the benefit of his family, which was long deemed a perfectly legitimate pious purpose, then the specific description of which family members benefit and in what shares becomes more important. There are default rules respecting the matter if the grantor makes no such specification.Footnote ⁴⁸

Thus, the waqf often generated income from lease payments, sales of agricultural products grown on it, or otherwise, which is dedicated to a pious purpose. Other waqfs, such as mosques or other religious centers, did not generate income and instead consumed resources. Commonly, income generating and resource consuming waqfs were combined, such that the grantor might create a waqf of a date farm and a mosque, with the revenues generated from the date farm used to fund the expenses of maintaining the mosque.Footnote ⁴⁹

The legal effect of the waqf, at least in theory, was to render the property inalienable and the grant of the waqf irrevocable, with the property conceptually belonging to God.Footnote ⁵⁰ Hence, a waqf of land in favor of relatives is not the devising of the land to the relatives, but rather giving the beneficiaries the proceeds arising therefrom, subject to whatever limitations the grantor establishes for the use of the land.Footnote ⁵¹

In light of the trust-like structure of the waqf, the property endowed requires a trustee to administer it. The grantor is permitted to select a trustee and set forth a means by which future trustees are to be selected.Footnote ⁵² A particularly popular method in modern Iraq, despite its indeterminacy, is for a grantor to appoint as trustee the most pious male member of his family of the nearest generation to him of which there are surviving members. In other words, the most pious of the grantor's sons, followed upon the death of the last son by the most pious grandson, followed by the most pious great grandson, and so forth. If the grantor does not select a trustee, then in theory a judge would do so.Footnote ⁵³

Because waqfs are supposed to be perpetual, questions arise as to what happens if a grantor's direct line of descendants were to be extinguished in a family waqf. Shi'i jurists generally declared the waqf terminated in this exceptional circumstance.Footnote ⁵⁴ The Malikis take the same position. Hanafi jurists, by contrast, required that the property be dedicated to some other pious purpose, such as the establishment of a mosque or religious school, because waqfs can never terminate. The property having been dedicated to God, it cannot be returned to the ownership of people.Footnote ⁵⁵

An even greater concern surrounded the circumstances under which endowed property could be leased or sold and exchanged for different property. Short-term leases were universally accepted.Footnote ⁵⁶ After all, the most common way that commercial property could generate income would be through the leasing of shops and other commercial facilities. Shi'i jurists express little to no reservations about longer-term leases as well, given that their compendia make no reference to time limits on leases of waqf property. Sunni jurists, however, generally limited longer-term leases.Footnote ⁵⁷ There were a number of reasons they took this position, including that waqfs would no longer seem perpetual and dedicated to God if long-term leases were common; that a longer-term lease could harm the waqf; and that witnesses, who were the primary means of proving the existence of transactions (including waqf dedications) in classical Islam, would die or forget that a particular piece of land had been placed into waqf if it had been leased long before.Footnote ⁵⁸

Even greater concern surrounded the sale and subsequent exchange of waqf property for other property of equal value. For Hanafi jurists, unless the grantor had given the trustee the power to make the exchange, such as transaction should only be undertaken if the property had become incapable of generating income entirely, or at least generating sufficient income to satisfy whatever expenses it was expected to cover.Footnote ⁵⁹ (For example, if a date farm was supposed to generate revenues to support a particular seminary, and the income it generated was no longer sufficient for this purpose). At that point, a judge could authorize the trustee to make the exchange, so that a different property would then be under endowment.Footnote ⁶⁰

Shi'i jurists proved even more exacting on exchanges not authorized by the grantor, requiring that the property provide no income at all before the sale and exchange becomes permissible.Footnote ⁶¹ Sistani provides the example of a rotting tree trunk.Footnote ⁶² Even then, Shi'i jurists require an exchange for something as similar to the original property as possible.Footnote ⁶³ For example, if a date farm under waqf had suffered a drought and the trees died, then the trustee would presumably sell the land to someone, perhaps for its wood, and use that money to purchase a working farm capable of generating revenue.Footnote ⁶⁴

There are a number of other features of waqf that are emphasized among scholars and commentators over the course of Islamic legal history, from whether a grantor can be both a trustee and a beneficiaryFootnote ⁶⁵ to whether property other than land can be endowed.Footnote ⁶⁶ These debates need not detain us, rich and interesting as they may be, as they are of limited concern to the subject of this article. Rather, I focus below on two relevant aspects of the waqf that are of central importance. These are, first, the relationship of the waqf to the state, and second, the deep social and economic interests that jurists historically had vested in waqfs.

Waqfs and the State

Perhaps the most remarkable feature of the waqf is the extent to which it purports to operate independently of the state to a large extent. That is, the grantor is generally a private individual with no necessary connection to the state.Footnote ⁶⁷ Moreover, the grantor's dedication lasts forever, without state interference.Footnote ⁶⁸ The grantor determines the property appropriated, the designation of the beneficiaries, and even the identity of the trustee.Footnote ⁶⁹

This separation of the waqf from the state proved to have some benefit historically. As Kuran has noted, the waqf permitted individuals in the premodern world to decide where best to focus resources to provide public goods, rather than bureaucratize them in the state.Footnote ⁷⁰ Moreover, waqfs commanded vast public resources that could then be used to challenge the political authority of the state. In the words of another scholar, “the waqf . . . combined the features of a philanthropy, a social service agency, and, albeit indirectly, a political voice competing with that of the ruler.”Footnote ⁷¹

That said, it is a mistake to suggest that somehow before modernity, Islamic states were hostile to, or even unconcerned with, the administration of waqfs. In fact, as Richard van Leeuwen has shown, from early in Islamic history, the establishment of waqfs was firmly embedded as part of state policy.Footnote ⁷² Even if a state did not create a waqf, a caliph or a sultan certainly could, as could governors and other high state officials.Footnote ⁷³ The waqfs created by these individuals could provide public goods and public services, such as pilgrimages to Mecca, food for the needy, and revenues for mosques and seminaries in a manner that directly fostered state ends.Footnote ⁷⁴ The Ottomans, for their part, used the waqf as a means to connect the outer provinces to the center through the distribution of largesse and the provision of public services.Footnote ⁷⁵

Moreover, the power of judges to supervise waqfs was always important. Thus, at various points throughout Islamic history, waqf properties were exchanged with far more frequency than juristic rules would seem to have permitted. State judges simply authorized the exchanges by reading the juristic rules quite broadly.Footnote ⁷⁶ Finally, of course, it was always possible for states to at least try to reassess whether or not waqfs had been validly created in the first place, and, in so doing, reassert control over vast portions of land.Footnote ⁷⁷

The point, therefore, is not that premodern Islamic states were completely disassociated from the process of dedicating and administering waqfs. This was never true. The point, rather, is that despite their material power and their obvious interests in determining how such vast wealth producing property was being used, premodern states could only play a limited role in managing waqfs.

Waqfs and the Jurists

The interests of the jurists in waqfs are even more direct and obvious than those of the state. First of all, jurists created the rules under which the waqfs were supposed to operate.Footnote ⁷⁸ In addition, and quite importantly, they were also quite often beneficiaries of waqfs. This is because one of the most common forms of waqf over time was either a seminary, or a piece of wealth-producing land whose revenue would be dedicated to the support of a seminary and the students studying in it.Footnote ⁷⁹ Jurists therefore created, and were supported by, the waqf system.

This juristic interest, coupled with the state interests described above, led to a rather complex interplay as between jurist and state over the waqf. On the one hand, jurists relied on the waqf to finance their institutions, and thus they jealously guarded the waqf from state intrusion to the fullest extent possible. On the other hand, when the state rendered waqf creation a central part of state policy, as the Ottomans did,Footnote ⁸⁰ and when state officials created, and facilitated the creation of, waqfs whose beneficiaries include jurists and seminaries, the involvement of the state is inevitable.Footnote ⁸¹

In other words, across the span of Islamic history, there was a rather elaborate relationship, at once competitive and symbiotic, between the politically powerful state and the legally authoritative jurists over waqf law, policy, and administration. The next section shows how this system ultimately came to an end in modernity.

The Death of the Sunni Waqf

Background

Iraq's political history resembles that of Egypt in broad outline. The state began as a monarchy pursuant to a British Mandate that was created by the League of Nations after the First World War.Footnote ¹²² Like Egypt, Iraq's monarchy attempted modest reforms of various Islamic institutions in a somewhat incremental fashion throughout the early part of the twentieth century.Footnote ¹²³ Like Egypt, in doing so, it was consistently resisted by more conservative elements, including juristic forces.Footnote ¹²⁴ And finally, like Egypt, following its own military coup, self-styled as a “republican” revolution, secular and nationalist reforms accelerated under a series of strongmen.Footnote ¹²⁵ Hence, to take the most notable and widely commented upon example, for decades, the monarchy had tried, and failed, to pass a uniform Personal Status Code, its failure coming about largely because of vociferous objections from the powerful Shi'i jurists of Najaf.Footnote ¹²⁶ Following the 1958 Revolution, Abdul Kareem Qasim arranged for the enactment of such a law within a year of ascending to power, over juristic objections, in the form of the 1959 Personal Status Code that remains in force today.Footnote ¹²⁷

Importantly, however, while the patterns were the same, particular institutions within the Iraqi state and beyond it proved quite effective in resisting change in Iraq. Hence, the Personal Status Code aspired in 1959 to create a radical, unified inheritance system wherein men and women inherited in equal shares, in derogation of Qur'anic verse calling for a 2:1 division in favor of males.Footnote ¹²⁸ Due to strong objection, this was soon repealed, and in its place was oblique reference to the historic, juristic rules of the sect of the decedent.Footnote ¹²⁹ Juristic power over rulemaking in inheritance was thus in effect restored within four years of its having been taken away. Where the Azhar in Egypt was facing a near continuous loss of influence over the course of the twentieth century, Najaf was proving far more durable and successful in limiting—and, indeed, reversing—nationalist and secularist ventures.

Resistance to reform has not always taken the form of formal repeal of comparatively progressive legislation. Iraq's courts have been notably resistant to personal status innovation when interpreting the Personal Status Code, and they are no less resistant in the area of waqf. Courts have over time read legislative reform efforts narrowly, thereby limiting their impact. Social elements, prodded by juristic forces, have also resisted change. The result of all of this is that from the inception of the Iraqi state until the fall of the Ba'ath regime in 2003, there were modest efforts to bring waqfs under greater state control and supervision. However, by and large, such efforts had a rather limited impact due to deep social and institutional resistance to change. Much of this resistance was spearheaded by Najaf and its leading jurists.

Family Waqfs

As was the case in Egypt and Syria, Iraq's reformers first centered their efforts on the family waqfs, which have always been more vulnerable to criticism.Footnote ¹³⁰ In this context, it is quite revealing of Najaf's comparative political strength that what first emerged by way of waqf legislation in Iraq, in 1929, was a law that effectively exempted the family waqf from any state supervision at all. Specifically, Article 4 of the Law of the Administration of Waqfs, No. 27 of 1929, indicated in Articles 4 and 5 as follows:

These provisions probably reflect what Najaf and its political allies had in mind with respect to all waqfs when drafting Article 43 of the current constitution of Iraq; namely, that the state would simply record the waqf, and then presume that other nonstate elements would manage it. The state's sole role would then be to ensure that the property was never legally alienated or encumbered given its status as waqf. As this section shall reveal however, what might have been possible with respect to family waqfs in 1929 could hardly be imagined in 2003 with respect to all waqfs, given the dramatic expansion of the Iraqi nation-state in the interim, and its assumption of nearly all lawmaking functions.

Juristic and other conservative elements were able to prevent any further significant reforms to the family waqf in Iraq for a period of decades. It was not until the middle of the twentieth century that significant efforts to eliminate the family waqfs arose once again.Footnote ¹³¹ The Shi'i juristic academies grew so concerned about these calls for abolition that five religious leaders drew up a petition on Najaf's behalf that, inter alia, called for not tampering with the waqf or interfering in the affairs of the Shi'i holy cities Najaf and Kerbala.Footnote ¹³² Witnessing that which was occurring in Egypt, Najaf recognized the threat to their interests and independence that waqf reform presented, and used their significant influence to thwart it.

Due to this juristic opposition, as well as the opposition of comparable Sunni clerics,Footnote ¹³³ the emerging reformist piece of Iraqi legislation on family waqfs, enacted in 1955, proved more modest than the outright ban that had been enacted three years earlier in Egypt, and six years earlier in Syria, described above. The specific law was entitled Edict No. 1, Permitting the Dissolution of Family Waqfs [hereinafter, “Dissolution Edict”]. Relevant portions of the Edict, as it stood until the year 2016, are below:

Plainly, as the above passages make clear, the Edict is not a ban on family waqfs, but rather creates a private right to dissolve them. In this sense, the changes imposed upon waqfs are both more limited and more radical than those of Egypt's 1946 law, which had temporally limited family waqfs to no more than two generations.Footnote ¹³⁶ They are more radical in the sense that there is even less juristic support for the idea of a waqf coming to an end by the will of a beneficiary than there is in its coming to an end by operation of law. The whole point of a waqf, like a trust, is to keep the endowed property tied up and therefore out of the control of the state and the beneficiaries.Footnote ¹³⁷ The idea that the beneficiaries could seize hold of the endowed property itself whenever they want to, by virtue of a state edict, seems to defeat its very purpose.

That said, the Edict is also more limited in its scope than Egypt's 1946 law in that it does not in fact bring an end to any family waqf, except with the consent of a beneficiary. It is possible that the drafters of the Dissolution Edict believed that, religious justifications aside, it was more politically palatable to cause waqfs to end upon demand by a beneficiary than declaring them at an end as a matter of law. It is also possible that the drafters presumed that over time, most beneficiaries would eventually seek the dissolution of the waqf because it is in their obvious economic interest to do so. Dissolving the waqf permits them each to take a share of it, and, upon doing so, distribute that share to their heirs upon their death, rather than to other beneficiaries in later classes, which will include their heirs, but potentially many others as well.

Whatever the intent of the Iraqi legislators, it is fair to say that they miscalculated rather dramatically. Reliable statistics are hard to come by in Iraq, but in my review of over one thousand published cases on waqf in Iraqi courts over the past several decades, there are only a handful that attempt to interpret the 1955 Edict at all. For the most part, the ones that do exist seek to narrow its effect in deference to classical Islamic principles.Footnote ¹³⁸ The reasons for this are easy enough to surmise. In an environment where juristic pronouncements are taken very seriously, and social structures are tightly knit,Footnote ¹³⁹ a formal request to dissolve a waqf is equivalent to a declaration to one's family of an intent to sin by usurping property that has been properly endowed to God. Few Iraqis are willing to suffer such social sanction.

Interestingly, despite the Edict's limited impact, various Iraqi regimes did not seek to further restrict the family waqf through subsequent legislation. Rather, within three months of taking power, the Iraqi leaders who brought about the 1958 Revolution embarked upon quite an ambitious agrarian reform that, despite its very broad scope, generally left family waqfs alone.Footnote ¹⁴⁰ The sole provisions of the Agrarian Reform Code that dealt with family waqfs seemed designed to ensure that a person could not avoid the reform provisions by designating themselves, or a family member, a beneficiary of a waqf.Footnote ¹⁴¹

Along the same lines, post-Revolution legislative bans on the long-term leases known as the hikr Footnote ¹⁴² were limited to leases of indefinite duration, while nearly all leases of family waqf land in Iraq are for definite, if extended, duration.Footnote ¹⁴³ Accordingly, to this day, there is no meaningful constraint on the use of hikr on family waqf land.

There are many reasons that the Iraqi state, both before and after its nationalist revolution, might have chosen to tread carefully as concerns the family waqf, relative to states like Egypt and Syria. One reason might be that family waqf reform was not a particularly high priority for a state whose main revenue is oil, not agrarian land.Footnote ¹⁴⁴ That a great deal of agrarian land within Iraq was classified by the Ottomans as ’amiri land was helpful as well, given that a waqf could technically not be established on ’amiri land.Footnote ¹⁴⁵

It is hard to discount as a central factor, however, the power and influence that Najaf's jurists brought to bear on the matter. As with personal status law, Najaf regarded waqf law to be within its ambit, not that of the state. As such, it resisted quite strongly any efforts to erode its power. Najaf proved remarkably successful in limiting the scope of reform as a result.Footnote ¹⁴⁶ As will be seen in the next section, a similar pattern emerges as concerns charitable waqfs, which were even more important to Najaf because of their direct economic implications on Najaf's revenue.

Charitable Waqfs

As with the parallel developments elsewhere in the Arab world, the Iraqi reforms to the charitable waqf in the early stages aimed to place the waqfs under firmer state control, so that the state could then distribute the revenues in the manner that it saw fit. Iraq met with modest success in this regard. However, the changes proved more limited than in Egypt, they were met with fierce juristic resistance from the start, and they came almost entirely undone after 2003.Footnote ¹⁴⁷

The first real legislative efforts to exert greater control over waqfs were made about four years after Iraq's inception as a state, and specifically in the already referenced 1929 Law on the Administration of Waqfs.Footnote ¹⁴⁸ That law deserves closer consideration, because it introduces the framework upon which all future laws concerning waqf management were modeled until the end of the Ba'ath regime.

The major purpose of the law was to classify waqfs into different legal categories, which resemble in part juristic classifications, and then specify the extent of state control over each category of waqf. Specifically, Article 1 of the 1929 law provides the following primary classifications:

Articles 2–4 then lay out the role of the Ministry of Waqfs over each of these different types of waqf.Footnote ¹⁵⁰ In the previous section I showed how the ministry exercises very little control over family waqfs as per Article 4.Footnote ¹⁵¹ By contrast, under Article 2, the state manages entirely the regulated waqfs, which have no designated trustee, nor any means by which one might be designated.Footnote ¹⁵²

Article 3 presents the most interesting case, in that it covers every charitable waqf with a designated trustee or trustees. As to such a waqf, the ministry is empowered under the 1929 Law to “monitor it, the charitable institutions [designated as beneficiaries], its improvements, its revenues, and its expenditures, and to hold the trustees to account.”Footnote ¹⁵³ The ministry is supposed to receive 5 percent of the revenue generated from each supplemental waqf as compensation for such monitoring.Footnote ¹⁵⁴ Later provisions then set forth specifics respecting the types of practices waqf trustees should use when managing waqfs, all of which are subject to state monitoring. These include a ban on hikr arrangements (Article 7), requiring auctions for the lease of waqf properties (Article 8), and imposing competitive bidding for reconstruction projects (Article 9).Footnote ¹⁵⁵

A post-Revolution 1964 law replaced the 1929 law, and that later law was itself replaced in 1966.Footnote ¹⁵⁶ These laws largely retain the same basic structure of the original law, though they extend state exercise of control of the waqfs in three important ways. First, they include family waqfs within the definition of supplementary waqfs, thereby subjecting them to greater state control.Footnote ¹⁵⁷ Second, the 1960s-era laws require all unsound waqfs to be placed under direct state administrative control.Footnote ¹⁵⁸ This is not difficult to justify, given that the unsound waqfs are by definition those created on state-owned ’amiri land.Footnote ¹⁵⁹ The development is, however, quite important, given that most land in Iraq is ’amiri. Finally, the 1964 and 1966 laws seem to liberalize the principles under which waqf lands can be exchanged. Specifically, Article 6(1) of the 1964 law reads as follows: “The Ministry may exchange properties where there is an interest in the exchange, for property or for cash, whichever is more beneficial to the waqf. It occurs on the approval of the [Waqf] Council, certification by the Shari'a Court, and the issuance of a Decree from the Republic.”Footnote ¹⁶⁰

The 1966 Waqf Administration Law liberalized this even further by removing the requirement that a court or government ministry approve an exchange sought by the trustee.Footnote ¹⁶¹ Gone seem to be long established rules under Islamic law (described above in the discussion of nature and purposes of the waqf), that in order for waqf property to be exchanged, the waqf must be entirely unproductive, and that even in such a case, the property must be exchanged for an equivalent item whenever feasible.Footnote ¹⁶² In its place seemed to be a rule that permitted a trustee to liquidate a waqf whenever there was an identifiable interest in doing so, with the trustee then responsible for managing the liquid assets in waqf.

This legislative innovation, however, is one to which courts have long proved resistant. Hence, in Consolidated Cases 1 and 2 of 1973, a General Panel of the Court of Cassation, which is an expanded panel of the highest court of general appeal, ruled on a case where a trustee seemed to be engaging in a series of fraudulent transactions with his brother over family waqf property.Footnote ¹⁶³ The Court indicated as follows:

In so ruling, the Court seems to act as if Article 6 of the Waqf Administration Law of 1966 does not even exist, quoting historic juristic rules for the exchange of waqf property rather than legislative ones. Moreover, following this passage, the Court lays out a series of administrative steps not mentioned in the legislation that are so stringent that it is almost impossible to imagine any trustee wanting to go through them except in extreme conditions.Footnote ¹⁶⁵ Plainly, judicial resistance to waqf exchange appears to have made this particular innovation of the Iraqi Waqf Administration Laws into something of a nullity, reviving instead the historic juristic rules to govern exchanges.

Despite such judicial resistance, the trends in favor of broader state control over the waqfs continued over the succeeding decades. Perhaps the most significant legislative development after 1966 was the issuance of a regulation on trustees in 1970, shortly after the Ba'ath had come to power and at the zenith of Iraq's nationalist, secularist era.Footnote ¹⁶⁶ Ostensibly, the purpose of the regulation was to specify the precise functions and duties of waqf trustees more clearly than the Waqf Administration Laws did. In fact, it did far more than this. A closer examination of its provisions reveals an attempt by the state to take over waqf administration nearly entirely. The regulation reads in relevant part as follows:

Thus, as a form of regulation of trustee conduct, the Regulation subjects trustees to examination and oversight,Footnote ¹⁶⁸ under the auspices of a state appointed council of religious scholars.Footnote ¹⁶⁹ Even more importantly, pursuant to Article 2 of the same law, trustees for charitable waqfs are to be appointed by that state council following nomination of a state court. The goal, quite clearly, was to bring the very idea of privately administered waqfs to an end, at least as concerns charitable waqfs.Footnote ¹⁷⁰ The effort would be gradual to be sure, in that the Regulation does not actually seek to replace existing trustees, so much as delineate a state supervised method of appointing new ones upon the death or dereliction of duty of an existing one. Nevertheless, over time, the result of the Regulation would be that all trustees would be state appointed and state supervised.

One final state legislative intervention during this period deserves brief mention. Only one year after the Trustee Regulation was issued, a new Real Property Registration Law was enacted.Footnote ¹⁷¹ The law has very little to do with waqfs, though it does introduce one significant innovation. Article 259 indicates that “[t]ransactions of revocation of waqfs shall be recorded on the basis of a certificate issued from a competent court or a final judicial ruling.”Footnote ¹⁷² The clear import of this is that a waqf that had already been recorded in the state registries, and that had a deed designating the land as waqf, could nonetheless have the deed revoked through court order, at which point the land would return to the private ownership of the grantor.Footnote ¹⁷³ This notion of waqf revocability is clearly inconsistent with the broad position of jurists across various schools of Islamic thought.Footnote ¹⁷⁴

The net effect of all of this legislation was a dramatic expansion in the exercise of state control over waqfs. A state bodyFootnote ¹⁷⁵ had been established with considerable control over waqf revenues that administered large numbers of waqfs and monitored others to ensure their conformity to state requirements. A mechanism had been put in place to subject all charitable waqfs to eventual state control. Waqfs could seemingly be revoked rather easily as well. While there was some judicial resistance, and while the laws were not as extensive as those in Egypt, the trend lines were clear. They seemed to suggest that the waqf in Iraq would meet the same end as it had in Egypt, even if the process would take somewhat longer to complete.

The Administration of the Holy Shrines

Before turning to the resumption of juristic control of the waqfs following 2003, the subject of the discussion at the end of this article, it is important to discuss state regulation of one special category of waqfs of particular importance to the jurists. These are the Shi'i Holy Shrines, which are primarily the burial places of the Imams and other revered figures interred throughout Iraq, and pilgrimage destinations for devout Shi'is across the globe. Primary among them are the Holy Shrines of Kerbala and Najaf, the latter of which is the burial place of the First Imam and the home of the juristic seminaries. Given the centrality of the Holy Shrines in Shi'i theology and legend, and given their identity as a primary locus from which Shi'i juristic power is projected, their regulation has long raised particular sensitivities for Iraq's Shi'a.Footnote ¹⁷⁶ This section shows how the state was much more deferential to the exercise of juristic authority over the Holy Shrines than it was to the balance of waqfs.

The earliest regulations concerning the Holy Shrines were issued shortly after the Second World War, relatively late into the monarchy.Footnote ¹⁷⁷ These regulations centered on the state appointed personnel responsible for managing the Holy Shrines,Footnote ¹⁷⁸ the actual operation of the Holy Shrines, and the proper conduct of pilgrims in and around them.Footnote ¹⁷⁹ The only real reference to revenues concerned gifts left by pilgrims in the Holy Shrines, which the shrines’ primary custodian must report to the Waqf Directorate, and which are not likely to be a major source of revenue.Footnote ¹⁸⁰ There are references to the Najaf jurists, but they are relatively oblique and limited. Most notably, there is a definition of the “designated jurist” as the head of the public waqfs and a role for him in appointing and supervising the primary custodian and the shrine attendants.

The more significant regulations are those that follow the 1958 Revolution. Specifically, Law 25 of 1966 created within the Waqf Bureau a separate office known as the Directorate of the Management of the Holy Shrines.Footnote ¹⁸¹ Included within its portfolio are the allocation of revenues from waqfs endowed to the Holy Shrines and the administration of Shi'i waqfs generally. The scope of the 1966 law is thus much broader than the monarchy era regulations, which dealt only with the Holy Shrines themselves.Footnote ¹⁸² Articles 3 and 4 of the 1966 law read as follows:

Thus, if a Shi'i endows a waqf, whether or not related to the Holy Shrines, the waqf is then Shi'i. At that point, the waqf's trustee is determined by the grantor, and, if not specified by him, then by a court, but only if Najaf's highest jurist certifies the trustee as qualified. The highest jurist is defined as the one with the most followers (`a'la al-muqallid). This definition relies obliquely upon the Shi'i religious obligation that each lay person select a single jurist as the most knowledgeable to “emulate.” The follower must then comply with that jurist's rulings absolutely and turn over to him the obligatory tithe.Footnote ¹⁸⁵ The law thus grants to the single jurist who has the most such emulators the legal power to consent to the nomination of waqf trustees where the waqf was endowed by a Shi'i.

The power handed explicitly to Najaf's highest jurist is then significant, certainly more than in previous legislation. As a result, the risks of entanglement with the state grow, not least because the definition given to the highest jurist is subject to manipulation. There is no reliable way to know which jurist is the one with the most followers. In the words of Harith Hasan al-Qarawee,

While the prominent role afforded to the Najaf jurists in the 1966 Holy Shrines Law proved enormously influential in the post-2003 era, the law itself did not last very long. Less than twenty years after its enactment, and specifically during the height of the Iraq-Iran war, when suspicion of the Iraqi juristic seminaries was at its highest, the Iraqi regime amended it.Footnote ¹⁸⁸ Specifically, Article 4 was changed to permit the Personal Status Court to appoint the trustee of the waqf, thereby stripping the jurists of their most important role in the previous law.Footnote ¹⁸⁹

Thus, by 2003, the Iraqi state had made some progress in its efforts to assume greater control over charitable waqfs and the Shi'i Holy Shrines. Nevertheless, the steps it had taken were modest relative to other states, and they were fiercely resisted at every step, not only by nonstate forces such as jurists, but also by the courts themselves, which seemed in many cases to be siding with the jurists. In the next section I describe how, after 2003, the state has not only abandoned its efforts to assert more control, but in fact has ceded the controls it established back to the jurists, who now have a largely unfettered hand to administer waqfs and allocate their revenues however they wish. I also lay out the manner in which this renders Najaf more vulnerable to formal interference in its affairs than it has been since the inception of the Iraqi state.

Early Measures

The previous section demonstrated that until 2003, Iraq was following the general path of most other Arab and Islamic states in extending state control over the waqfs and ending their relative insulation from state interference. The trend in Iraq may have been more gradual than it was elsewhere, but nonetheless, it was unmistakable through the 1970s. From 1980 through 2003, there did not seem to be very much legal change, undoubtedly due to war and subsequent U.N. sanctions.Footnote ¹⁹⁰ Despite this stasis, there was no reason to think that nonstate actors in general, and jurists in particular, were going to be able to resist the trends that prevailed throughout the region in a manner that would enable them to reassert authority over the administration of waqfs and the allocation of their revenue. The realities of modernity seemed very much toward an expansion of the state's role. Indeed, as discussed in the introduction, it was these realities, grasped as early as the latter half of the twentieth century, that led Ayatollah Ruhollah Khumayni to assert his novel juristic theory that jurists should effectively rule the state.Footnote ¹⁹¹

It took the rupture of foreign invasion, the uprooting of a totalitarian regime, and the consequent, highly predictable chaotic aftermath of these undertakings to cause a rather dramatic shift in expectations. Suddenly a broad swath of regulation relating to the management of public order fell to nonstate authorities to administer, almost without constraint.Footnote ¹⁹² For perhaps obvious reasons, the same was not, and could not be, true vis-à-vis the waqfs, given that they were fundamentally endowments of real property, and recorded as such in state registers. Any effort by nonstate authorities to manage the land in a manner that diverged from state rules would therefore be tenuous, and hardly an ideal state of affairs as concerns the regulation of endowments that are supposed to be permanent. Najaf could therefore either try to turn back the clock and restore some sort of premodern balance to waqf management in a manner that most modern states would regard as unthinkable, or it could assert control over all state bureaucratic machinery that pertained to the state in a manner that diverged from its own theory of its relationship to the state. Ultimately, it chose the latter, as I discuss below.

The method by which Najaf proceeded in this regard was neither swift nor deliberate. As I note in the introduction, jurists and their allies initially seemed somewhat ambivalent as to how to proceed after the fall of the Ba'ath. In particular, the deep Shi'i suspicion of the state proved difficult to dislodge immediately, even if demographic realities pointed rather clearly to Shi'i ascendance and, indeed, future political domination. The distrust resulted, most notably, in the bizarre spectacle of a constitutional crisis precipitated by a Shi'i majority demanding a strong form of federalism out of mistrust of the central government of Baghdad, over which they exercised effective control.Footnote ¹⁹³

In the context of the waqf, Shi'i jurists and their political allies were likewise apprehensive of the state and thus placed most of their emphasis on dismantling the state structures that had existed during the Sunni dominated regimes of Iraq's past. Hence, on August 30, 2003, while Iraq was still under U.S. occupation, the Iraq Governing Council, an Iraqi body established by the United States occupying authority whose members were handpicked by the United States,Footnote ¹⁹⁴ passed Resolution 29, purporting to dissolve the Ministry of Waqfs and Religious Affairs.Footnote ¹⁹⁵ The Resolution also expressed an intention to create “administrative offices for the waqfs of all religions and sects.”Footnote ¹⁹⁶ Importantly, however, it did not create those replacement offices. To the Governing Council, it was more important to obliterate the state structure that regulated waqfs than it was to put in its place any other form of regulation. This is not a surprise—beyond the desire to wrest control of waqfs from a state body, the ministry in the Ba'ath era had engaged in heavy handed forms of repression by monitoring Friday sermons and only permitting those loyal to the regime to serve as imams.Footnote ¹⁹⁷ In any event, the immediate abolition meant that for a period—extending nearly two months—there was no body that managed the administration of waqfs at all.

Eventually, the rising Shi'i power elite seemed to have grasped the need to do something beyond repealing existing regulation relating to waqf. Accordingly, in October of 2003, the Governing Council issued Resolution 68, which purported to create two waqf bureaus, one Shi'i and one Sunni, which would administer waqfs for each respective sect.Footnote ¹⁹⁸ The Resolution further appointed a president and vice president for the Shi'i bureau, and a president for the Sunni bureau.Footnote ¹⁹⁹ Shi'i political intentions respecting juristic control of waqf administration were made even clearer when the two people appointed to the positions of president and vice president of the Shi'i Waqf Bureau turned out to be Husayn al-Shami and Jalal al-Din al-Saghir.Footnote ²⁰⁰ Both are prominent clerically trained political figures.Footnote ²⁰¹ The extent of Najaf's control over the Shi'i Waqf Bureau, even at this early date, was confirmed when, at Najaf's insistence, Shami was replaced as waqf bureau president with Saleh al-Haydari, a prominent Baghdad-based Shi'i cleric who has long been close to Sistani.Footnote ²⁰²

Resolution 68 is remarkably short on specifics, in that it does not delineate the operations or rules of administration of the respective waqf bureaus in any level of detail. Nevertheless, it is quite telling that the bureaus are by definition state bodies, created by a state power—the Iraq Governing CouncilFootnote ²⁰³—and led by individuals who hold their position by virtue of a state decree. The entanglement of the juristic forces of Najaf and the political powers in Baghdad in rulemaking, management, and governance in the vital field of waqf law had begun in earnest.

As I explain in the introduction, despite these early developments, juristic forces were not entirely committed to an assumption of state power in the area of waqf even as late as the drafting of the constitution. This is why the constitution rather puzzlingly refers to a “right” of Iraqis to establish waqfs managed in accordance with the rules of their sect—akin to a right to practice religious rituals—and yet indicates the need for this “right” to be organized in law, in a manner that would be unthinkable in the case of actual religious rituals.Footnote ²⁰⁴

Eventually however, certain realities set in. Among them was the fact that as a consequence of the American invasion, the Shi'a were firmly in control of the Iraqi state, and would seemingly remain so for the foreseeable future.Footnote ²⁰⁵ As a result, the state did not need to arouse the same suspicion as previous governments, which had always been Sunni dominated.Footnote ²⁰⁶ Even more importantly, there simply was no viable way in a modern state to return to a premodern form of shared governance as concerned the waqfs. The state's role in administering property law was simply too deep and too extensive to render that viable. If the jurists were to exercise their power, they would have to do it through the state, and thereby risk whatever entanglements arose as a consequence.

Thus, the Governing Council Resolutions were only the very start of the legislative effort to hand over state function of waqfs to the Najaf jurists. The next development came in the form of a new Holy Shrines Administration Law, enacted in 2005. The law addresses how the Holy Shrines and nearby cemeteries are to be managed, and how their substantial revenues, including revenues from waqfs dedicated to their upkeep, are to be allocated. The law is particularly important because it reintroduces, for the first time since 1966,Footnote ²⁰⁷ a reference to the highest jurist, defined in the 2005 law as “the jurist with the highest number of Shi'i followers in Iraq, from among the jurists of Holy Najaf.”Footnote ²⁰⁸ As noted earlier, there is no reliable data on which to rely to make this sort of determination, and yet the highest jurist is empowered to play a significant role in determining who administers each of Iraq's Holy Shrines, and spend revenues derived therefrom.Footnote ²⁰⁹ What this means for the future is that state institutions will necessarily have to decide who Najaf's highest jurist is, at least for purposes of interpreting and applying state law as it pertains. This is a rather significant development, and one that runs against Najaf's deeply ingrained preferences for autonomy from political power.

The Waqf Bureau Laws of 2012

The references to the high jurists of Najaf remained confined to the area of Holy Shrines management in the 2005 law, where the dangers of entanglement were real, but reasonably contained. Far more consequential were the enactment of two laws, Numbers 56 and 57 of 2012, which set up and defined the operation of each of the Sunni and Shi'i waqf bureaus, respectively, in a manner that devolves almost all state function in the area of waqf to jurists and juristic authorities.Footnote ²¹⁰ I focus on Law 57, which creates the Shi'i Waqf Bureau, which is most relevant to this article.

As summarized below, Article 2 of Law 57 lays out six purposes for the Waqf Bureau in Article 2:

1. (1) Management of waqfs that do not have a private trustee, and oversight of waqfs that do;

2. (2) Investment of revenues of the waqfs that it manages, as per the first purpose;

3. (3) Addressing the concerns of mosques and other charitable and religious institutions and giving due regard to their development;

4. (4) Strengthening Islamic culture and revitalizing Islamic heritage;

5. (5) Deepening ties to the broader Islamic world; and

6. (6) Protecting the interests of the Holy Shrines.Footnote ²¹¹

Effectively, any state activity that relates to the practice of Islam for Iraq's Shi'a appears to be a function of the Waqf Bureau. This is rather important in a state that has made Islam its official state religion and has committed itself to protecting the Islamic identity of its Muslim population.Footnote ²¹²

Under Article 4, the head of the bureau is responsible for executing the policies of the bureau, with the power to issue regulations, form committees, and direct particular resources within the bureau.Footnote ²¹³ The position of bureau head is explicitly described as equivalent to that of a government minister, and its appointee is chosen by the prime minister and the cabinet. Quite importantly, the law requires that the government obtain the consent of Najaf's highest jurist prior to any appointment taking effect.Footnote ²¹⁴ This means that there is a de facto seat in the Iraqi cabinet reserved to a government official with considerable powers to ensure the Islamic character of the state. This seat cannot be filled without the permission of a single “Quietist” religious authority who supposedly has no affiliation with the state, and seeks none.Footnote ²¹⁵ By contrast, as might be expected in a parliamentary democracy, and perfectly in keeping with a more traditional view of Shi'i Quietism, the de jure members of the cabinet, as well as the prime minister, must be approved by the legislature, and require the imprimatur of no religious authority.Footnote ²¹⁶

While the primary responsibility for execution of bureau policy lies with the head of the bureau, the Waqf Bureau also has a board of directors, which sets bureau policy.Footnote ²¹⁷ The bureau head is the president of the board, and three of its members are religious scholars selected by its head.Footnote ²¹⁸ Another two are the deputies of the bureau head, and the balance are director generals of the various constituent units of the Shi'i Waqf Bureau, such as the Research Directorate, the Revitalization of the Husayni Rituals Directorate, and the Directorate of Planning.Footnote ²¹⁹ Thus, the head of the Waqf Bureau, whose position requires the support of Najaf's highest jurist, plays an important role in the selection of all members of the board of directors, and alone appoints the religious scholars who serve on the board.Footnote ²²⁰

The powers of the board of directors are quite vast. Beyond setting bureau policy, the board's responsibilities include control over budget matters, and review of the establishment of mosques and religious institutions.Footnote ²²¹ The board also studies and approves investment opportunities for waqfs under bureau management.Footnote ²²² In connection with this, it is worth noting that the revenues from waqfs under bureau management are under the control and management of the board as well.Footnote ²²³

Two other powers of the Waqf Bureau are worth mentioning in brief. First, it is responsible for making final approval of the reconstruction of facilities on waqf land, or the exchange of waqf land.Footnote ²²⁴ As indicated above in the discussion of charitable waqfs, the power to approve exchanges was historically allocated to the Iraqi courts.Footnote ²²⁵ Second, the Scientific Council of the Shi'i Waqf Bureau is given the task of appointing trustees for Shi'i waqfs that have no trustee.Footnote ²²⁶ The members of the Scientific Council are selected by the bureau head.Footnote ²²⁷

Therefore, Najaf's senior jurist plays an extremely important formal state role in the appointment of personnel who (1) set the policies respecting the management of waqfs and maintenance of the Islamic character of the state, (2) execute those same policies, and (3) actually manage significant amounts of waqf land.

Perhaps even more significantly, the level of control exercised by Najaf's senior jurist over the Waqf Bureau extends well beyond appointment of personnel. Article 14 reads as follows:

In other words, should questions arise respecting how waqfs are supposed to be managed, the Waqf Bureau's personnel are required to defer to the opinions of the jurists generally, and, where there is doubt, Najaf's highest jurist in particular. As with the process of appointing the Waqf Bureau head, which also makes reference to Najaf's highest jurist, this provision requires the state to make a determination as to which jurist is in fact Najaf's highest jurist, and thereby to play some role in the determination of the question where it is in doubt. This is precisely the sort of entanglement that Najaf had spent the entire course of Iraqi history avoiding. In this context, however, they seem to have concluded that they had little choice. Either they assumed governance of the waqf through state offices, with the consequent risks of entanglement, or they would lose control of the waqfs, as had occurred in Egypt, Syria, and other Arab states.Footnote ²²⁹ The former may have been distasteful, but the latter was unthinkable.

For the most part, the system seems to have worked rather well for the jurists. Obviously, the jurists have achieved their primary objective, which has long been to consolidate and centralize authority in Najaf over the Shi'i waqfs and their associated revenue.Footnote ²³⁰ Moreover, they have done so while maintaining a thin veneer of separation between the high jurists and the Shi'i Waqf Bureau, allowing them to maintain at least a pretense of alienation from the state even as they dominate the waqfs. Given the bureau's function in not only managing waqfs, but also maintaining the Islamic character of the state, this has the added advantage to the jurists of leaving the bureau to enter into highly charged and controversial matters respecting Islamicity, while the jurists appear above the fray. Hence, for example, it was the Shi'i Waqf Bureau and not the jurists who decried the 2019 appearance of a female Lebanese violinist playing the Iraqi national anthem while wearing a sleeveless shirt and slacks in a soccer stadium just before an international soccer tournament.Footnote ²³¹ Had the jurists spoken out, they would have surely faced a backlash from more secular elements as well as disaffected youth. Had there been no reaction, Islamist forces would have objected. Permitting the bureau to condemn the appearance while remaining silent allowed the jurists to insulate themselves from more severe forms of criticism while still making sure their views were known.

At the same time, Najaf's jurists are clearly aware that there are dangers that attend to the overlap in function between a state office such as the Shi'i Waqf Bureau on the one hand, and Najaf's jurists and seminaries on the other. The law seeks rather clumsily to solve this problem in a manner that only makes it worse. Specifically, Article 15 of the Shi'i Waqf Bureau Law reads as follows: “The Bureau does not administer the religious schools, and other waqfs tied to the Shi'i seminaries. Nor shall it interfere in their affairs except with the permission of the Highest Jurist.” (emphasis added)Footnote ²³²

The problem is easy enough to identify. The law only insulates the juristic seminaries from intervention on the part of the bureau, and indeed the state, to the extent that Najaf's highest jurist does not seek such intervention. As noted earlier, there is no easily recognizable way to determine the highest jurist.Footnote ²³³ The state already must make a determination as to whom the highest jurist is, in order to appoint the Waqf Bureau head and administer the waqfs in accordance with the law. This provision further grants the state the opportunity to intervene directly in Najaf's affairs, in order to defend the interests of the person whom the state has determined serves the role of Najaf's highest jurist.

The provision is in many ways shocking, and would have been unthinkable in the recent past. Not even Saddam Husayn's regime was brazen enough to seek this level of formal, legal authority over Najaf's successorship system. The only reason that it does not seem to have garnered much reaction at the moment is that there is little opportunity for the state to make use of the intervention opportunity that Article 15 provides it. This is because the highest jurist of Najaf is agreed to be Grand Ayatollah Sistani, it would be impossible to credibly claim otherwise given the depth of that consensus, and Sistani has never had the need, much less shown the inclination, to turn to the state to protect his position in Najaf.Footnote ²³⁴ However, Sistani is nearly ninety years old.Footnote ²³⁵ Upon the passing of a jurist, internal juristic power struggles are common, opaque to the outsider but nonetheless quite real.Footnote ²³⁶ The temptation of the state to tip the scales in one direction or the other, and to use Article 15 as giving the state a clear legal basis to do so, will be strong indeed.