By Benedikt Koehler
Abstract Waqfs have been a distinctive feature of welfare provision in Islamic societies for many centuries. However, there is a common perception that waqfs were not conceived during the lifetime of Muhammad. A recent study of Islamic institutional history, for example, asserted waqfs were an “institutional choice, which appears to have been made about a century after Muhammad.”1 perception derives an inference that waqfs, therefore, are not germane to Islamic conceptions of civil institutions. The following remarks take issue with this perception and inference. A further inference from the assertion that waqfs originated a century after the death of the Prophet is that waqfs at their inception were constituted to address societal conditions of that particular period and hence were ill suited to adapting to societal needs not foreseen at the time. I argue waqfs originated in provisions made by Muhammad, and that proceeding from these provisions there emerged in early Islam an innovative legal conception of property rights, namely fiduciary ownership. Placing the origins of waqfs in Muhammad’s lifetime, by implication, supports the assertion that early Islam was a catalyst for the self-sustaining evolution of formative institutions of civil society, in sectors such as education and health. A corollary of the assertion that waqfs originate in Muhammad’s policy measures, is that the view civil society in Islam was stagnant from the outset is mistaken. I argue that the conception of waqfs was implied by the introduction of zakat. My remarks will also show waqfs were forerunners of trusts in Common Law and point out the historical juncture from which onward jurisprudential thinking in Islam and Christendom diverged. I will close by showing waqfs, however, have continued to prove adaptable to new needs for provision of welfare.