The challenge of differences of opinion among the various Islamic schools of thought (Madhabs) when it comes to Waqf and Endowment principles. These differences can create uncertainty and lack clarity in deducing concrete outcomes for waqf management and implementation. The diversity of Madhabs within the Islamic tradition results in variations in interpreting and applying Islamic jurisprudence. Each Madhab has its own methodologies and legal principles, which can lead to divergent views on waqf-related matters. These differences can encompass areas such as the types of properties that can be endowed, the permissible uses of waqf funds, the conditions for waqf validity, and the appointment of trustees, among others. The lack of clear consensus on specific waqf-related issues can complicate decision-making processes and lead to differing interpretations and practices across different regions and communities. This can, in turn, hinder the growth and effective management of waqf assets and their potential to address societal needs. Some contemporary scholars and institutions have proposed proposals and frameworks to reconcile the differences among Madhabs on waqf matters. These efforts seek to provide clarity and practical guidance to trustees, administrators, and beneficiaries involved in waqf projects. It's important to note that while differences of opinion exist, there are also areas of consensus and shared principles among the Madhabs regarding waqf. These shared principles, such as the perpetual nature of waqf, the intended public benefit, and the prohibition of personal benefit by the waqf founder, can serve as a foundation for common understanding and collaboration. Overall, addressing the challenge of Madhab differences requires ongoing dialogue, scholarly engagement, and the development of practical guidelines that consider the shared principles and aims of waqf. By fostering a spirit of cooperation and understanding, it is possible to navigate these differences and promote the growth and effectiveness of waqf for the benefit of communities. Following are the differences of opinions among Sunni Islamic Jurisprudence schools (i.e., Hanafi, Shafii, Maliki, Hanbali) regarding Waqf and Endowment. Following references mostly taken from article "Classical waqf, juristic analogy and framework of awqaf doctrines by Mohammad Abdullah"
In the classical jurisprudential discourse, the Shariah basis of waqf has been delineated by jurists as rigorously as its ancillary principles. The nature of argumentation on the Shariah validity of waqf, as preserved in the classical fiqh (Islamic jurisprudence) literature, exhibits that in its initial phase, the conceptual framework of waqf could not receive unanimous agreement from all jurists (Al-Shafii, 1990; Al-Shaybani, 1997). Though the opinion of those jurists who approved of the Shariah validity of waqf was to prevail in the later stage, disagreement persisted with reference to its necessary features and defining criteria. In this context, determining the essential requirements for completing a waqf and deciding on its ownership status constituted the most disputed aspects of waqf jurisprudence (Abbasi, 2012). The institutional character of waqf remained somewhat blurred until its recognition by the majority of jurists in the subsequent century (Hennigan, 2004). However, once the institution established its conceptual and jurisprudential location in the juristic discourse by the 8th century CE, the pertinent rulings evolved in alignment with the distinctive nature of waqf (Al-Mawsu ah al-Fiqhiyyah, 2006).
The primary concern of jurists was that the concept of waqf should not contradict the rules of Sharīʿah related to mawarith (inheritance), sadaqah (charity), and hibha (gift), among others. For those jurists who validated the concept of Waqf early on, the premises of its Shariah validity were located in a composite of prophetic actions, statements, and endorsements. They found additional reinforcement for it in the practices and opinions of the Prophet’s companions. Although the story of ʿUmar (R.A.) endowing his property at Khayber is identified as the main axis around which the whole structure of the institution revolves, some early jurists have identified the origin of waqf in the practice of the Prophet (peace be upon him) himself (Amin, 1994). Although the early waqf literature contains the names of numerous companions who made waqf, with a few exceptions, the subject matter and terms of their awqaf have generally not been mentioned (al-Hilal, 1355 AH; Al-Khassaf, 1904).
Regarding ownership of Waqf, neither the waqf of a piece of land (in its perpetual nature) nor the permanent suspension of ownership from mosques could be established through the two primary sources of Shariah. Whatever evidence was supplied in this regard was subject to disputation among the jurists. Notwithstanding this, later on, a juristic consensus was achieved in two stages on the suspension of ownership from waqf property. At the first stage, the jurists agreed on the argument that Shariah requires the alienability of mosques from the ownership of the waqif. And in the second stage, they decided to take the case of the mosque as the basis of analogy (maqis alayhi) for validating the suspension of other variants of waqf as well (Ibn Hajar, 2001).
Regarding the completion criteria of Waqf, the most disputed aspect of waqf among the early jurists was the issue of its completion and culmination (itmam). Whether the mere pronouncement of the waqif completes a waqf or requires transfer of the corpus to the designated mutawalli (trustee) is vigorously disputed. For Malik and al-Shaybani, transfer of possession is mandatory for a waqf to take legal effect (Ibn al-Humam, 2011). The premise of this opinion is an analogy (qiyas) and not an explicit textual ruling (nass), as this opinion is consistent with the general theory of charitable giving in Shariah, which requires transfer of possession as a prerequisite for completion of all unilateral giving such as sadaqah or hibah (Amin,1994). However, al-Shafii disputes this opinion and argues that waqf culminates even without transferring the possession of the given property. In this regard, the point of divergence for al-Shafii is marked by the fact that he considers waqf as a peculiar property-conveyance device compared to other forms of unilateral giving. In this regard, Al-Shafii (1990) also applies the similarity theory between manumitting a slave and making a waqf. According to this theory, both manumissions of a slave and a waqf culminate without the requirement of acceptance from their respective beneficiaries. As an explanatory note in his magnum opus Kitab al-Umm, al-Shafii considers waqf under the broad definition of ʿataya (singular Atiyah: charitable giving). ʿAtaya, according to him, is divided into two categories. The first category, he argues, culminates in the donor’s lifetime by taking immediate legal effect. The second category completes only in the aftermath of the giver’s demise. Al-Shafii divides the first category into habs and other forms of giving, i.e., sadaqah, hibah, and nihal (gift). Habs, according to him, culminates with the mere pronouncement by the waqif and does not require the transfer of title/possession for its completion. In comparison, the other three branches of the first category, sadaqah, hibah, and nihal, require the transfer of possession coupled with acceptance from the recipient to take a legal effect. Apart from this, the second category of Atiyah (which culminates only in the aftermath of the death of the donor) constitutes a wasiyah (Islamic will), which is revocable during the lifetime of the donor (Al-Shafii, 1990). According to the analogy drawn by Imam Abu Hanifah, Waqf is comparable with "ariyah (gift of usufruct). In his view, similar to the nature and the case of an "ariyah," the ownership of Waqf remains with the Waqif, and the corpus can be withdrawn at his disposal (AL-Marghinani, 2010; Ibn al-Humam, 2011). Imam Abu Hanifah permits a Waqf to be established after death of the Waqif. Here, his contention is based on the analogy of wasiyah (Islamic Will), which takes effect only after the death of the musi (testator) (Al-Shaybani, 1997, p.266). The institutions of wasiyah (Islamic will) and waratha (inheritance) have also served as tools of analogy for waqf. Specific principles of these two institutions along with other similar devices provided the structural basis for development of waqf doctrines. For instance, the doctrine that a deathbed waqf donation cannot exceed one-third of the endower’s aggregate property is based on analogy with a Shariah provision related to wasiyah (Al-Sarakhsi, 1993).
According to Imam Abu Hanifa, the legal meaning of waqf is the detention of a specific thing in the ownership of waqf and the devotion of its profit or products for charity to the poor or other good objectives (Gaudiosi, 1988).
Imam Abu Yusuf and Imam Muhammad said that: “waqf signifies the extinction of the waqf`s ownership in whatever has been dedicated and detention of everything in the implied ownership of God, in such a manner that its profits may revert to or be applied for the benefit of mankind” (Hudson, 2003).
Imam Abu Hanifah held the view that, in principle, the Waqif's ownership of his Waqf does not cease. In this regards, the opinion of Imam Malik converges with that of Imam Abu Hanifah, as he too was of the opinion that the ownership of Waqf remains with Waqif. Similarly, Imam Ahmad Ibn Hanbal also rejected the suspension of ownership of Waqf arguing instead that the ownership transfers to and lies with the beneficiaries of a given Waqf (Amin, 1994).
Regarding Perpetuity versus temporary of Waqf under all four schools, the Donation must be perpetual once it is created. This guarantee that it will benefit generation after generation and also prohibits it from being confiscated (See REF).
The issue of perpetuity over temporality of waqf was also a critical point of juristic dispute in the classical discourse. The divergence of juristic opinions on this point was rooted in the variation in their scholastic approaches towards waqf. Arguably, for Imam Abu Hanifah and Imam Malik, there is no substantial Shariah evidence to prove the intrinsically perpetual nature of Waqf. Imam Abu Hanifah accepted the permissibility of Waqf reluctantly and that too without viewing the necessity of its permanence (Al-Sarakhsi, 1993; Al-Marghinani, 2010; Ibn al-Humam, 2011). To some extent, Imam Malik too argued for a convergent theory so far the permanence of waqf was concerned (Sahnun, 1324 AH). Presumably, for both Imam Abu Hanifah and Imam Malik, the liternal and technical implications of waqf are more relevant to beneficiaries than the waqif. In other words, it is the beneficiaries of a waqf who are not permitted to dispose of waqf either by selling the corpus, gifting it, or making it subject to 292 inheritance.However,according to Imam Abu Hanifah, subject to specific conditions, the waqif can exercise his ownership rights on a waqf property. On the other hand, in the Mudawwanah of Sahnun, we are informed that Imama Malik was acquainted with the waqf-related Shariah maxim "It cannot be sold or inherited or gifted" with reference to the waqf deeds of some companions. However, he did not view this maxim as a sufficient proof for instituting the characteristic of perpetuity as a necessary element of each and every Waqf (Sahnun 1324 AH; Al-Sarakhsi, 1993). For Malikis, the terms sadaqah and habs do not make any difference in either determining the legal status of a deed or in restricting its beneficial character. In comparison,for Hanafis, sadaqah is specifically the rights of the rich and poor. Al-Shaybani (1997) solicits a subtle but fundamental difference in how a waqf would benefit the rich and poor in divergent ways. According to him, a rich person could benefit from the usufruct of waqf; however, he could not enjoy entitlement in the revenues, as this is the sole right of the poor. According to Al-Shaybani (1997), waqf constitutes only permissibility (ibahah) of enjoyment and not the transfer of ownership (milkiyah). The implication of this technical difference is that a waqf can benefit both the rich and poor but its revenues are exclusively reserved for the poor only. For example, if a slave has been made waqf for the services of mujahidin (those who struggle against oppressors), both rich and poor can enjoy his services equally. However, if a house is dedicated as waqf, the revenues generated through renting it cannot be spent on the rich (Al-Shaybani, 1997). For Maliki scholars, the condition of temporality or permanence does not affect the legal standing of a waqf. In contrast, al-Shaybani did not envisage a deed of waqf as permissible except with the condition of perpetuity. Hence, for Hanafis, if a waqf is designated for a determinate number of beneficiaries without specifying where the benefits would be directed after their deaths, the deed would become void right from the beginning. Al-Shaybani cites the opinion of Imam Abu Hanifah with respect to the waqf of a person who declares "My house is habs for X and, in his aftermath, for his children" that this waqf is void (Al- Shaybani, 1997). In the Mudawwanah, on the other hand, a similar example of waqf was considered permissible (Sahnun, 1324AH).
Most Muslim jurists argue that for Waqf to be legitimate, it should not be time-restricted but forever. However, a few scholars, including Imam Malik, argue that time restrictions are permissible, meaning that an endower can offer his property for Waqf for a limited time, after which he/she will regain ownership of the donation (See REF). So only Maliki believes that Waqf can be temporary but not other Madhab.
Under Hanafi, when a privately owned property is endowed and is made the corpus of a waqf, it becomes Allah’s property. This has made it rather difficult, but not entirely prevented, bankrupt and corrupt governments to confiscate waqf assets. Being relatively immune from confiscations, many waqfs with sound and sufficient endowments have survived for considerably longer than half a millennium and some even for more than a millennium (Crecelius, 1995).
Under Maliki, The is not allowed to control Waqfs by their founders, and the founder cannot appoint himself as the trustee administrator (Cizakca, 2018).
Under Maliki, the creation of a waqf is allowed by simple declaration or recite (samaa al fashi).
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