The institution of wakf rests upon the shari'a, the religious law of Islam. Although it antedates the mediaeval English feoffment to uses, precursor of the trust, by at least four centuries, the Islamic wakf bears striking resemblances to the trust. The origins of the shari'a are to be found in the Koran, looked upon as the revealed word of Allah, and in the Hadith, traditions of the deeds and sayings of the Prophet Mohammed. Some discussions of the peculiarities of the shari'a will be helpful to an understanding of the law of wakf. First, the shari'a is a personal, as distinguished from a territorial, law. It governs transactions because the parties are Muslims of a particular sect, not because they reside in, owe allegiance to or conduct their business in a territorial state. Second, since the third century of Islam, at least until a hundred years ago, the sole authority for the shari'a has been the writings of venerated scholarly jurists. During the first two centuries the hadis (judges) presiding over courts administering the shari'a were free to go directly to the Koran and the precedents of the early authorities; since then a kadi's duty has been to seek only the dominant view of the leading jurists of his own school. There is, accordingly, in strict Muslim theory, no recognized place for custom, legislation or judicial precedents as sources of law. The situation within any school of Islamic jurisprudence thus resembles that created in the Roman Empire by the Law of Citations of 426 A.D., which required the courts to follow the views of five named jurists who had flourished in earlier centuries. The Roman Empire always recognized, however, the possibility of change in the law by legislation. The shari'a, being deemed to be divinely ordained, does not, in theory, recognize the possibility of legislative change as distinguished from mere implementation by administrative regulations.
William F. Fratcher,
Islamic Wakf, The,
36 Mo. L. Rev.
Available at: https://scholarship.law.missouri.edu/mlr/vol36/iss2/1