By Muhammad al-Marakeby
The use and validity of family endowments (waqf ahlī) have been a contentious issue since the nineteenth century. Many argue that family endowment was often used as a means to circumvent Islamic inheritance laws. Specifically, it has been suggested that some Muslims used to transfer wealth to their sons during their lifetimes as waqf to prevent daughters from receiving their legal share.[1] Apart from the ideological or colonial exaggerations of this claim, this essay seeks to show how certain Muslim legal scholars (ʿulamāʾ) not only opposed the misuse of waqf ahlī but were especially vigilant in protecting women's inheritance rights, demonstrating a distinct sensitivity toward women's treatment. Previous studies have noted that the Mālikī school often regarded an endowment that excluded daughters as either invalid or reprehensible (makrūh).[2] Here, I delve deeper into the history and development of this perspective within Mālikī rulings (furūʿ). I show that, although nullifying such endowments was not initially the predominant Mālikī stance, Khalīl's inclusion of this position in his Mukhtaṣar (compendium) contributed significantly to its acceptance and legitimacy. I demonstrate how his argument is based on a gender-based rationale that permitted endowments excluding male heirs but not female heirs—reflecting a form of preferential treatment toward women in these cases.
The discussion surrounding the exclusive endowment of wealth to males can be traced back to the era of Mālik ibn Anas) d. 179/795), the founder of the Mālikī madhhab. In al-ʿUtbiyya, a less authoritative Mālikī text, Imam Mālik is recorded as stating that endowing solely to sons while excluding daughters is prohibited. When Ibn al-Qāsim )d. 191/806), his student, asked whether the endowment must be revoked in such cases, Mālik answered in the affirmative.[3] Ibn al-Qāsim also reports that Mālik stated, "This is a pre-Islamic (jāhilī) practice, and this endowment cannot be intended 'for the sake of Allah.' Endowment is not this."[4] Later Mālikī sources, however, reference Mālik's opinion in al-Mudawwana—the most authoritative source for his views—where he states, "It is reprehensible for the endower to exclude daughters,"[5] indicating that such endowments are merely reprehensible (makrūh) rather than outright prohibited or invalid. These sources argue that the account in al-ʿUtbiyya does not supersede Mālik's explicit position in al-Mudawwana.[6]
This issue puzzled me because I could not find this statement in al-Mudawwana, even after cross-checking several editions.[7] However, in abridged versions of al-Mudawwana, such as al-Tahdhīb fī Ikhtiṣār al-Mudawwana, I found the statement included, where Mālik explicitly said it was makrūh to exclude daughters from endowments.[8] This implies that some versions of al-Mudawwana had included the phrase, which would explain its citation by Mālikī ʿulamāʾ. This observation raises a notable issue: despite the production of numerous editions of al-Mudawwana, it appears that none have yet undergone thorough critical editing.
Based on these various narrations, which were themselves open to differing interpretations, subsequent Mālikī jurists diverged widely on this question whether someone creating a family endowment may exclude daughters, and what were the legal ramifications for doing so. Their disagreements can be summarized as follows: [9]
- The endowment should be annulled in all cases, even after the endower's death or the distribution of wealth to beneficiaries.
- The endower should revoke the endowment and include daughters as long as he is alive. If he dies, the endowment is considered binding.
- The endower should revoke the endowment and include daughters if the wealth has not yet been received by the beneficiaries.
- The endower is to revoke the endowment to include daughters, provided that the beneficiaries agree.
- The endowment is valid, as the exclusion of daughters is considered merely reprehensible (makrūh).
Some Mālikī sources seem to downplay the position of invalidity (position 1 above) such as Ibn ʿAbd al-Barr (d. 463/1070) who asserted that while excluding women from an endowment was reprehensible, it would not invalidate the endowment.[10] However, the majority of sources mention this issue as a point of debate without endorsing a specific stance.
Then came Khalīl ibn Isḥāq (d. 767/1374), who is regarded as the most authoritative Mālikī scholars among later ʿulamāʾ. Ibrāhīm al-Laqqānī, a prominent Ottoman Mālikī scholar, (d. 1041/1632) famously proclaimed, "We are Khalīlians. Even if he were wrong, we would follow him."[11] Over seven centuries, his Mukhtaṣar has inspired over sixty commentaries and has become a primary textbook in Mālikī madrasas worldwide. Khalīl aimed in his Mukhtaṣar to prioritize the most authoritative opinions within the Mālikī madhhab, often including the mashhūr (most accepted view) even when it differed from his personal stance.[12] In this case, however, Khalīl firmly designated the opinion of invalidity as the Mālikī stance. He even refrained from listing the other opinions of the Mālikī ʿulamāʾ in his Mukhtaṣar, unlike in other cases where he presented multiple opinions without explicit preference. He unequivocally states, "An endowment made for a sin, or for a [non-Muslim] enemy, or non-Muslim [in general], even for a mosque, or for sons excluding daughters is invalid."[13]
In his commentary on Mukhtaṣar Ibn al-Ḥājib, Khalīl provides us with further explanation of his claim in al-Mukhtaṣar. Khalīl dismisses drawing an analogy between this case and that of endowing gifts to one's own child while excluding others, a practice regarded as makrūh in the Mālikī madhhab. He argues that depriving women is a more serious issue, as Mālik views the exclusion of women as akin to the pre-Islamic (jāhilī) practice of denying women inheritance rights. Khalīl quotes a narration that ʿĀʾisha (d. 58/678), the wife of Prophet Muhammad, condemned this practice, likening it to pre-Islamic jāhilī practices criticized in the Qur'ān. She cited the verse 6:139, "And they say that what is in the bellies of these animals is exclusively for our males and forbidden to our females. But if it is [born] dead, then all of them have shares therein. He will punish them for their attribution [of such false orders to Allah]. He is All-Wise, All-Knower." To reconcile his opinion with the one mentioned in al-Mudawwana, Khalīl interprets "reprehensible" (karāha) in al-Mudawwana to mean prohibition, a common usage in the early period of Islam.[14]
However, critics of Khalīl argue that he was wrong in favoring an opinion conflicting with al-Mudawwana. Muḥammad al-Dusūqī (d. 1230/1815) contends that his preference for al-ʿUtbiyya cannot be justified solely on the basis that it is Ibn al-Qāsim's narration, especially when other narrations are present in al-Mudawwana. He suggests that if Ibn al-Qāsim's narration appears in al-Mudawwana, it should be adopted; if not, the opinion of al-Mudawwana prevails regardless of its narrator.[15] In his later Mukhtaṣar in the late eighteenth century, Muhammad al-Amīr (d. 1232/1817) amended Khalīl's wording to state, "An endowment made for a sin . . . or by a non-Muslim, even for a mosque, is invalid, and it is reprehensible to make an endowment for sons excluding daughters."[16] Similarly, Aḥmad al-Dardīr (d. 1201/1786) in his Mukhtaṣar expresses the ruling of reprehensibility.[17]
On the other hand, Khalīl's adoption of the opinion of invalidity gained traction among some other scholars. Commentaries by Ibn Ghāzī al-Maknāsī (d. 919/1513), and Shams al-Dīn al-Tatāʾī (d. 942/1535) supported Khalīl's view.[18] Additionally, other unrelated works also adopted his opinion. For instance, in al-Shāmil fī Fiqh al-Imām Mālik, Bihrām al-Damīrī (d. 805/1402) argues that invalidity is the most authentic view.[19] Likewise, Ibn Ghānim al-Nafarāwī (d. 1126/1714) exclusively cites Khalīl's opinion of invalidity in his famous commentary on Risālat Ibn Abī Zayd.[20] Various short commentaries on Khalīl's work show no objection to his claim of the invalidity of exclusively son-beneficiary waqf. Interestingly, ʿAbd al-Bāqī al-Zurqānī (d. 1099/1688) offers a detailed defense of Khalīl's position, arguing that endowments made exclusively to the benefit of sons should be considered invalid. Zurqānī counters objections raised against Khalīl by asserting that Ibn al-Qāsim's narration in al-ʿUtbiyya holds precedence and that Khalīl's stance is consistent with this principle.[21] However, Muhammad al-Bannānī (d. 1194/1780), in his gloss on Zurqānī's book, disputes his argument, claiming that Ibn al-Qāsim's narrations cannot override the text of al-Mudawwana.[22] In response, Muhammad al-Ruhūnī (d. 1230/1815) defends Zurqānī stating:
It is conceivable that the author, may Allah grant him mercy, was fully aware of the principle that the Mudawwana's statements take precedence over other sources, even if narrated by Ibn al-Qāsim. However, he may have chosen to emphasize the opinion of invalidity in his time, having observed how people increasingly exploited the alternative opinion of validity to disinherit women. Thus, he sought to put an end to this harmful practice, reminiscent of pre-Islamic jāhiliyya. Although he, may Allah be pleased with him, was not a mujtahid, he was close to being one.[23]
Ruhūnī suggests that neither Khalīl nor Zurqānī lacked an understanding of the Mudawwana's superiority over other sources. Instead, he assumes that their conscious efforts to address certain forms of justice in their own time motivated them to prioritize a less authoritative text in order to protect women's rights.
As previously discussed, there is a clear emphasis in Khalīl's mukhtaṣar and other sources on the exceptional nature of cases excluding daughters from waqf. Attempts to equate the exclusion of men and women—and to argue for the invalidation of both types of endowments—were generally dismissed, as the ruling on invalidity was seen as specific to gender. In al-Miʿyār al-Muʿrib, a compilation of Mālikī fatāwā by Aḥmad al-Wansharīsī (d. 914/1509), a question arose regarding a case where a father excluded his children from one wife from the family waqf on whether such an endowment should be considered invalid. The mufti seemed to sympathize with the questioner's claim that the father intentionally allocated his entire fortune to the children of one wife in order to disinherit the others. Drawing on this, the mufti suggested that this endowment could be invalidated, citing an analogy to cases where women were excluded from an endowment, which he believed should be deemed invalid. He referred to some scholars who argued that a waqf excluding some children, regardless of gender, is invalid. However, the mufti eventually reconsidered his position, concluding,
Although this analogy may seem plausible and well-supported at first glance, it can be argued that there is a difference between the two cases. The exclusion of daughters is deemed invalid because it resembles pre-Islamic jāhilī practices—a rationale that does not apply in this case… For this reason, I adopt the stance of validity in this case and issue a fatwā accordingly, adhering to the mashhūr of the madhhab.[24]
This fatwā clearly reflects a form of preferential treatment for women in the case of waqf. In this instance, gender became a decisive factor, granting daughters more rights than sons. Notably, it was the pursuit of a contextual understanding of justice—one that considers the specific circumstances and structure of the case—that ensured women's rights, rather than a focus on formal gender equality.
Notes:
[1] For the history of these debates see David S. Powers, "Orientalism, Colonialism, and Legal History: The Attack on Muslim Family Endowments in Algeria and India," Comparative Studies in Society and History 31, no. 3 (July 1989): 535–71; Nada Moumtaz, "Is the Family Waqf a Religious Institution? Charity, Religion, and Economy in French Mandate Lebanon," Islamic Law and Society 25, no. 1-2 (2018): 37–77.
[2] See David Powers, "The Maliki family endowment: Legal norms and social practices," International Journal of Middle East Studies 25, no. 3 (1993): 379–406; Aharon Layish, "The Mālikī family waqf according to wills and waqfiyyāt," Bulletin of the School of Oriental and African Studies 46, no. 1 (1983): 1–32.
[3] Muhammad ʿIllīsh, Manḥ al-Jalīl Sharḥ Mukhtaṣar Khalīl (Beirut: Dār al-Fikr, 1989), 2:118–21.
[4] Ibn Abī Zayd al-Qayrawānī, al-Nawādir wa-l-Ziyādāt (Beirut: Dār al-Gharb al-Islāmī, 1999), 12:8.
[5] See ʿAbd al-Bāqī ibn Yūsuf al-Zurqānī, Sharḥ al-Zurqānī ʿalā Mukhtaṣar Sīdī Khalīl (Beirut: Dār al-Kutub al- ʿIlmiyya, 2002), 7:142.
[6] See later discussion.
[7] See Mālik ibn Anas, al-Mudawwana al-Kubrā (Beirut: Dār al-Kutub al-'Ilmiyya, n.d.); al-Mudawwana al-Kubrā (Abu Dhabi: Under the auspices of HRH Sheikh Zayed Āl Nahyān, n.d.); al-Mudawwana al-Kubrā (Riyadh: Wizārat al-Shu'ūn al-Dīniyya wa-l-Awqāf, n.d.).
[8] Abū Saʿīd al-Barādhiʿī, al-Tahdhīb fī Ikhtiṣār al-Mudawwana (Dubai: Dār al-Buḥūth li-l-Dirāsāt al-Islāmiyya wa-Iḥyāʾ al-Turāth, 2002), 4:330.
[9] Muḥammad ibn -Bayān wa-l-Taḥṣīl wa-l-Sharḥ wa-l-Tawjīh wa-l-Taʿlīl li-l-Masāʾil al-Mustakhraja (Beirut: Dār al-Gharb al-Islāmī, 1988), 12:258–60.
[10] Ibn ʿAbd al-Barr, al-Kāfī fī Fiqh Ahl al-Madīna (Riyadh: Maktabat al-Riyāḍ al-Ḥadītha, 1980), 2:1017.
[11] Badr al-Dīn al-Qarāfī, Tawshīḥ al-Dībāj wa-Ḥilyat al-Ibtihāj (Cairo: Maktabat al-Thaqāfa al-Dīniyya, 2004), 74.
[12] See Mohammad Fadel, "The Social Logic of Taqlīd and the Rise of the Mukhtaṣar," Islamic Law and Society 3, no. 2 (1996): 193–233.
[13] Khalīl ibn Isḥāq, Mukhtaṣar al-ʿAllāma Khalīl (Beirut: Dār al-Fikr, 1981), 212.
[14] Khalīl ibn Isḥāq, al-Tawḍīḥ fī Sharḥ Mukhtaṣar Ibn al-Ḥājib al-Farʿī (Casablanca: Markaz Najībwīh lil-Makhṭūṭat wa-Khidmat al-Turāth, 2008), 7:289.
[15] Muḥammad ibn ʿArafa al-Dusūqī, Ḥāshiyat al-Dusūqī ʿalā al-Sharḥ al-Kabīr (Cairo: ʿĪsā al-Ḥalabī, n.d.), 4:79.
[16] Muḥammad al-Amīr, Ḍawʾ al-Shumūʿ Sharḥ al-Majmūʿ (Mauritania and UAE: Dār Yūsuf ibn Tashfīn and Maktabat al-Imām Mālik, 2005), 4:28.
[17] Aḥmad al-Ṣāwī, Ḥāshiyat al-Ṣāwī ʿalā al-Sharḥ al-Ṣaghīr ʿalā Aqrab al-Masālik ilā Madhhab al-Imām Mālik (Cairo: Dār al-Ma'ārif, n.d.), 4:118.
[18] Ibn Ghāzī al-Maknāsī, Shifā al-Ghalīl fī Ḥall Muqfalāt Khalīl (Cairo: Markaz Najībawayh li-l-Makhṭūṭāt wa-Khidmat al-Turāth, 2008), 2:961; Shams al-Dīn al-Tatāʾī, Jawāhir al-Durar fī Ḥall Alfāẓ al-Mukhtaṣar (Beirut: Dār Ibn Ḥazm, 2014), 7:111.
[19] Bihrām al-Damīrī, al-Shāmil fī Fiqh al-Imām Mālik (Cairo: Markaz Najībawayh li-l-Makhṭūṭāt wa-Khidmat al-Turāth, 2008), 2:811.
[20] Ibn Ghānim al-Nafarāwī, al-Fawākih al-Dawānī ʿalā Risālat Ibn Abī Zayd al-Qayrawānī (Beirut: Dār al-Kutub al-ʿIlmiyya, 1997), 2:162.
[21] Al-Zurqānī, Sharḥ al-Zurqānī ʿalā Khalīl, 7:142.
[22] Ibid., 7:142.
[23] Muhammad al-Ruhūnī, Ḥāshiyat al-Ruhūnī ʿalā Sharḥ al-Zurqānī (Cairo: al-Maṭba'a al-Amīriyya: 1888), 7:136.
[24] Aḥmad al-Wansharīsī, al-Miʿyār al-Muʿrib wa-l-Jāmiʿ al-Mughrib ʿan Fatāwī Ahl Ifrīqiyya wa-l-Andalus wal-Maghrib (Ribat; Beirut: Wizārat al-Awqāf wa-l-Shuʾūn al-Islāmiyya bi-l-Mamlaka al-Maghribiyya, and Dār al-Gharb al-Islāmī, 1981), 7:282.
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