Book: Toward the reform of private Waqfs

Using a combination of the comparative legal method and hermeneutics, this book reconciles Islamic law with English trust’s law in these two main areas.

High-net-worth Muslim investors are increasingly investing and accruing wealth in the United Kingdom and the demand for Shariah-compliant wealth-planning structures, such as Waqfs, is growing. This study accepts that Waqf law, as applied today, has its shortcomings and that it must be reformed. Further, as the study focuses on the United Kingdom (specifically on common law as applied in England and Wales), the apparent incongruence of Waqfs and trusts is acknowledged and highlighted by this study’s analysis of three seminal British colonial cases that treated private Waqfs. The two main differences between Waqfs and trusts are their respective stances on perpetuities and ownership. While Islamic law, as understood by most not all jurists, mandates perpetuity for Waqfs, English law has a rule against perpetuities. Also, conventionally, while the trustee is seen as the legal owner of an English trust’s property, most Islamic jurists maintain that no one owns Waqf property; it is deemed to be owned by God. Using a combination of the comparative legal method and hermeneutics, this thesis reconciles Islamic law with English trust’s law in these two main areas. The study does not find it necessary for one legal system to reign supreme over the other, as such solutions will be questioned by the internal subjects of the dominated legal system, undermining the efficacy of this study. Rather, reconciliation is a mutual step to congruence taken by both legal systems. In the area of perpetuities, the thesis finds that neither Islamic Waqfs must be perpetual, nor common law trusts must have a rule against perpetuities. Regarding ownership theories, the multiplicity of rendered theories in both legal systems presents more than one avenue of reconciliation. Overall, the study finds that private Waqfs and private trusts can be reconciled without undermining the internal hermeneutic standpoints of both legal systems.

About the Author

Hamid Harasani, received his Ph.D from King’s College London (2014) and holds degrees in both Islamic law and English law. He has published various articles on comparative law and Islamic law. He is a co-founder of Harasani & Alkhamees Law Firm in Jeddah, Saudi Arabia, where he now resides.

Table of Contents

Introduction

1 Research Problem and Research Aims

2 Research Wider Discource

A: Methodology and General  Dficulities

• Comparative legal methodology
• General Methodology

B: the current state of Islamic Waqf law: highlighting and discussing the criticisms of the waqf system

• Overview of the waqf system
• Criticisms of waqf system
• The epistemic difficulties of attempting to reform waqf law outside its internal hermeneutic model

C: Exploring the tension between the waqf’s perpetuity laws and the English trust’s rule against perpetuities

• Islamic law;s mandated perpetuity in private family waqfs
• English law’s rule against perpetuities: doctrine and policy
• British colonial legal treatment of family waqf in light of the conflicting mainstream stances on regulating perpetuity
• Reconciliation

D: Trust and Waqf ownership Structures

• Ownership (Al-milkiyah) in Islamic law
• Waqf ownership
• Ownership in common law
• Trust ownership
• Comparing waqf and trust ownership structures

Conclusion  

Bibliographic Information

Title: Toward the reform of private Waqfs: a comparative study of Islamic Waqfs and English trusts

Author: Hamid Harasani

Publisher: Brill

Language: English

Length: 255 pages

ISBN: 9789004306974

Pub. Date: October 2015