The Maliki Family Endowment: Legal Norms and Social Practices

Abstract

Historians of Muslim societies have observed that, in principle, the strict application of the Islamic rules of inheritance would result in the progressive fragmentation of capital. Although technically correct, the observation fails to take into account the fact that the Islamic inheritance rules are but part of a larger and flexible Islamic inheritance system that also includes bequests, gifts inter vivos, family endowments, dowries, fictitious sales, and other modes for the devolution of property. This larger system has served Muslims, rich and poor, for over 1,400 years, although it operates differently in different places. The most important component of the Islamic inheritance system arguably has been the family endowment, known among the Malikis as ḥabs (popularly, habous) and elsewhere as waqf ahlī. This institution came into existence in the first Islamic century, in part because the Islamic inheritance rules proved too constraining, and soon became an integral component of the Islamic legal system. It allows a proprietor to transform immovable property such as a house or field into a perpetual endowment for one or more beneficiaries and subsequent generations of descendants; the property thereafter may not be bought, sold, or inherited. The founder designates the initial beneficiaries and defines the strategy according to which usufructory rights pass from one generation to the next. Thus, the founder may control the devolution ofendowment revenues for many generations after his or her death.