A Tension between Doctrine and Social Reality over Istibdāl of 15^th–16^th Century Egypt

Controversy among Ḥanafī Jurisprudents

Abstract

This paper attempts to demonstrate that views of Ḥanafīs on istibdāl, the exchange of a waqf property, from the 15^th–16^th century Egypt contain a tension between doctrine and social reality. In light of Islamic law, waqf was required to serve its intended purpose permanently, but in real life, depreciation of properties was inevitable. Thus, istibdāl is one of the ways that made it possible for waqfs to continue without infringing Islamic law.

Within the framework of waqf studies, recent research has examined the condition of each waqf property and beneficiaries in detail based upon waqf-related documents. In contrast, it seems that istibdāl has thus far attracted little academic interest. With most of the profitable real estate in urban areas being waqf, jurisprudents in 15^th–16^th century Egypt were faced with the question of how they could manage the deterioration of waqf properties while attending to their legal status. Although they were reluctant at first to legalize it, istibdāl was one answer to the unexperienced problem of excessed waqfs.

From the above-mentioned perspective, this paper depicts the notion of Ibn Quṭlūbughā (1399–1474) and Ibn Nujaym (1520–63) toward istibdāl by referring to their risālas. Ibn Quṭlūbughā recommended that qāḍīs play a positive role in protecting the interest of donors and beneficiaries if it was threatened by external factors such as disaster or usurpation. Ibn Nujaym, on the other hand, insisted on limiting qāḍīs’ excessive authority over legitimizing istibdāl by refuting al-Ṭarsūsī’s (1321–57) opinion that a qāḍī’s ruling takes precedence over an endower’s stipulations. The gap between their statements stems from the fact that the measures required to perpetuate existing waqfs differed in each time. The doctrine was not always applied uniformly, and a new solution was devised by changing its interpretation if it substantially diverged from the social reality.