Hanafi Legal Theory in the Ottoman Empire: The Case of the Cash Waqf

The study of Islamic law in the Ottoman Empire is a vibrant and dynamic field. After the Mongol invasions of the thirteenth century, the early Ottoman State was an important actor in the Muslim world, re-establishing Muslim sovereignty and intellectual life in Anatolia, the Levant, and Egypt, while simultaneously expanding Islam into a new frontier in the Balkans. It is partly for this reason that we see numerous structural innovations in the application of Islamic law in the Ottoman state. Unlike previous polities, the Ottomans established a clear hierarchy of religious schools (madrasas) with standardized curriculums that corresponded with a hierarchy of teachers and judges. They also institutionalized the office of the mufti, which had previously been a position that was a generally unofficial position separate from governance and created a hierarchy of muftis throughout the empire.

Yet despite this institutionalization of the structure of Islamic law, the underlying foundation of law in the Ottoman Empire continued to be traditional Islamic legal theory, particularly that of the Ḥanafī school of jurisprudence. This is most clearly seen in the legal writings of Ebū’s Suʿūd Efendi (d. 1574), who served as the grand mufti (şeyhülislam) of the Ottoman state for much of the sixteenth century. His Treatise Regarding the Permissibility of Cash Waqfs shows a strong adherence to traditional legal theory even in an ever-changing world empire.

Background

The gravestone of Ebū’s Suʿūd in Istanbul

Ebū’s Suʿūd served as the grand mufti of the Ottoman state for thirty years during the sultanate of Süleyman I after having risen up through the mufti hierarchy in the 1530s. He issued a plethora of legal opinions (fatwas) throughout his time in office, which would often be accompanied by an imperial edict, further solidifying the authority of the grand mufti. He thus likely had the biggest impact on the office of the Grand Mufti, shaping how it would be seen for centuries afterwards.

One of the most pressing issues Ebū’s Suʿūd had to deal with was the cash charitable endowment (waqf, plural awqāf). Traditionally, the waqf played a major role in Muslim societies. It would most commonly take the form of a parcel of land or a business that a wealthy benefactor would endow to a charitable cause. In theory, the land now belonged to God and all the profits made off that land were promised to whatever charitable cause the benefactor stipulated in the original endowment documents. Through such awqāf, important social services such as schools, libraries, soup kitchens, orphanages, and mosques would be supported through the perpetual profits from the waqf.

In the Ottoman Empire in the fifteenth century, there began to be awqāf established not with land, but cash. Individuals would chose to endow a certain amount of money as a waqf and stipulate that it be lent out to borrowers, with whatever profits coming from such loans being forwarded to charity. The first record of a cash waqf dates to 1423 in Edirne, but by the end of the fifteenth century, the practice was so common and widespread, that the majority of newly established awqāf came to be in the form of cash instead of land. Naturally, as a newly established practice lacking historical precedent, debate soon erupted among the jurists over whether such a practice was permissible according to Islamic law in the first place (Note: the issue of how money could be lent out while avoiding usury, ribā, was another jurisprudential issue entirely. This article will only address the debate over the establishment of the awqāf).

By the mid-sixteenth century when Ebū’s Suʿūd held the position of grand mufti, the debate had reached a boiling point and required an official judgement from the religious establishment. The result was an approximately 40 page treatise by Ebū’s Suʿūd in which he analyzed the legal theory behind awqāf and then offered his comments on the authority of a government to rule on such matters in the first place, his Treatise Regarding the Permissibility of Cash Waqfs (Risālah fi Jawāz Awqāf al-Nuqūd).

The Treatise

Ebū’s Suʿūd begins his treatise by analyzing the rulings of the early Ḥanafī jurists on whether a waqf has to be immovable (ie, land or buildings) or if it can be established with an initial investment of moveable goods such as animals or farm tools.

He notes that the eponymous founder of the school, Abū Ḥanīfa, considered any moveable waqf to be invalid. His two primary students are more permissive, however. He mentions that Abū Yūsuf allows for moveables to be a part of a land waqf. For example, farm animals or crops can be part of a waqf so long as the main part of the waqf is a parcel of land. Muḥammad al-Shaybānī is the most permissive, however. Allowing for any type of moveable waqf so long as it corresponds with local custom (taʿāruf). Ebū’s Suʿūd does note, however, that while there were varying opinions on the permissibility of moveable awqāf in general, all three of the early Ḥanafī jurists did not specifically permit a waqf to be established only with cash.

Ebū’s Suʿūd goes on to mention however, that Zufar, another of Abū Ḥanīfa’s students, was explicitly in favor of cash awqāf. He goes on to mention that there exists a narration in Bukhārī’s Ṣaḥīḥ from Ibn Shihāb al-Zuhrī about an individual who endowed a thousand dinars for orphans and that this narration could be used to support the permissibility of cash awqāf.

Yet despite this very explicit approval of the idea of the cash waqf from one of the founding figures of the Ḥanafī school combined with a narration found in perhaps the most important Sunni compilation of Ḥadīth, Ebū’s Suʿūd steers away from building his main argument on these narrations. Instead, he goes back to al-Shaybānī’s concept of local custom. He cites pre-Ottoman Ḥanafī jurists such as Muḥammad ibn Aḥmad al-Sarakhsī (d. 1090) and Burhan al-Dīn al-Marghīnānī (d. 1197) who echoed al-Shaybānī’s opinion that any type of moveable waqf is permissible so long as it is commonly accepted in any given area. He quotes another important pre-Ottoman jurist, the twelfth century Aḥmad al-ʿAtābī, as saying that while establishing a group of cows as a waqf is unheard of in his time and place (and would thus not be permissible), in another hypothetical context where such endowments are the norm, there would be no problem with it.

The tuğra of Sultan Süleyman, who appointed Ebū’s Suʿūd as grand mufti in 1545

Ebū’s Suʿūd thus argues that cash should be seen as just another type of moveable and that although such awqāf were unheard of in earlier Islamic history, the ubiquity of them in the sixteenth century Ottoman Empire would be reason enough, in accordance with the initial premise of Muhammad al-Shaybānī, to consider them valid in his context. Perhaps the most interesting aspect of his argument is that he chose to shy away from basing his argument on the explicit opinion of Zufar and the narration of al-Zuhrī as found in Ṣahīh Bukhārī in favor of cash awqāf and instead focused on the legal theory outlined by al-Shaybānī.

He recognizes that another objection could be made to his ruling in favor of the cash waqf however. Even if one would concede that al-Shaybānī allows for moveable awqāf and cash could potentially be considered just another moveable and the prevalence of the practice would allow for it in the eyes of numerous authorities in the Ḥanafī school, an interlocutor could argue that there is no reason to go through all those legal hoops when Abū Ḥanīfa himself would not have allowed for such endowments. Even if such an alternative opinion is feasible, why should the Ottoman state go with al-Shaybānī’s opinion over Abū Ḥanīfa’s?

Ebū’s Suʿūd’s response to such an objection is the core of his argument and it illustrates his thoughts on the relationship between the religious scholars and the sultanate. He calls on a very important maxim in Islamic law: that the ruling of a ruler lifts [juristic] dispute (ḥukm al-ḥākim yarfaʿ al-khilāf). The idea behind this maxim was that when jurists differ on an issue, the sultan has the prerogative to choose one ruling and make it the law of the land.

Ebū’s Suʿūd was hardly the first to employ this notion. Imām al-Shāfiʿī (d. 820) stated that a ruler has the authority to exercise his independent judgement in a case where there is no precedent in the Qurʾān and Sunnah and the jurists themselves would differ. The thirteenth century Mālikī jurist Shihāb al-Dīn al-Qarāfī (d. 1285) stated that when a ruler makes a determination on a case that is in dispute, it becomes mandatory for people to follow it. He adds that rulers only have the authority to do so in cases that are outside of the basics of worship and instead deal with issues such as “contracts, property, mortgages, charitable endowments, and similar things”. The fourteenth century Ḥanbalī scholar, Ibn Taymiyyah (d. 1328) stated that if a ruler is considered to be upright and knowledgeable about religious matters, it is mandatory for the entire population to abide by his rulings. The Andalusian scholar al-Qurṭubī (d. 1273) notes in his Tafsīr that an early Persian mystic, Sahl al-Tustari (d. 896), stated that Muslims are obliged to follow a sultan’s rulings, and that a sultan even has the prerogative to prohibit a mufti from issuing rulings if they blatantly contradict those of the sultan.

While Ebū’s Suʿūd does not directly quote any of the above jurists in his treatise, their influence on his conception of a sultan’s authority in religious law is unmistakable. He makes clear that since the cash waqf is an issue that the jurists do not all agree on, so long as the sultan choses a legitimate ruling from the jurists to support, it becomes incumbent on everyone in his jurisdiction to follow that ruling. As such, muftis could not refuse to allow cash awqāf to be established, nor could they revoke earlier endowments. This becomes an especially forceful argument considering that cash awqāf had been in use for over a century by the time Ebū’s Suʿūd wrote his treatise, allowed by five successive sultans from Murad II to Süleyman I. The practice had become so entrenched that it is doubly legitimate: both through the opinion of al-Shaybānī regarding moveable endowments and through the notion that when a ruler makes a ruling on an issue the jurists differ on, it becomes incumbent on all to follow.

Conclusions

Ebū’s Suʿūd was perhaps one of the most influential jurists in Ottoman history. His plethora of written works, his close partnership with Sultan Süleyman, and his ability to establish an efficient religious bureaucracy caused his influence on Islamic law in the Ottoman State to be felt long after his death in 1574. His conception of the relationship between the religious scholars and sultanic authority was a complex and interesting one. It is clear that he considered earlier figures in the Ḥanafī school, from the formative years of Abū Ḥanīfa and his students to later jurists like Burhan al-Dīn al-Marghīnānī, to be authorities that he could not simply overrule. He did not seek to set aside their opinions and create a new Ottoman interpretation of law that broke from past precedent. Simultaneously, he ingeniously used the inherent flexibility of Ḥanafī legal theory to allow for creative solutions to new problems, such as the cash waqf, that those earlier authorities did not directly deal with. In this way we see an Ottoman engagement with Islamic legal theory that defies commonly-cited notions of “religious” and “secular” law being in conflict. It appears that at the highest levels of the religious establishment, the Ottomans understood religious law and sultanic authority to be two realms that work together in governance, rather than as factions competing for authority in the Muslim world.

 

Further reading:

Atçıl, Abdurrahman. Scholars and Sultans in the Early Modern Ottoman Empire. Cambridge: Cambridge University Press, 2017.

Burak, Guy. The Second Formation of Islamic Law: The Ḥanafī School in the Early Modern Ottoman Empire. Cambridge: Cambridge University Press, 2015.

Ebū’s Suʿūd. Risālah Fī Jawāz Waqf Al-nuqūd. Edited by Aḥmad Shāghif Al-Bākistānī. Beirut: Dār Ibn Ḥazm, 1997.

Imber, Colin. Ebu’s-suʿud: The Islamic Legal Tradition. Stanford, CA: Stanford University Press, 1997.

Mandaville, Jon E. “Usurious Piety: The Cash Waqf Controversy in the Ottoman Empire.” International Journal of Middle East Studies 10, no. 3 (1979).