number of cases the drawing of this distinction was precisely the controversy that was to be resolved by the courts. The following section addresses this issue. Public/Private Distinction The most difficult faced by judges in the British Courts was to establish a public/private distinction in cases of Muslim endowments. The prototype of public waqf was a mosque with no private interests while the paradigm example of a family waqf was a settlement in favour of oneself and one’s children generation after generation with ultimate dedication to a mosque or the poor of a community. However, even in cases of a waqf in favour of a mosque the settlor or his descendants could be the hereditary with a hefty salary. This salary at times consumed a mutawallī substantial part of the income of the waqf. The traditions of the Prophet and the earliest treatises did not distinguish Fiqh between a family waqf and a public waqf, though the term waqf (in ‘alā favour of children) appears in the earliest treatises on waqf written in the ninth century. We also find the terms waqf (special) and waqf (general) in khāṣ ‘ām classical texts. The later treatises used the terms waqf and waqf to Fiqh ahlī khayrī denote family waqf and charitable waqf respectively. However, no separate rules were developed for these two types of awqāf apart from some distinction in procedural issues. The had broader powers to supervise the waqf qāḍī ‘ām/khayrī (general/charitable) as against the waqf (special/family). The exact khāṣ/ahlī distinction between the two types remained elusive because the private and public interests were intermixed in each type. This reflects the social context in which classical Islamic law developed. In that context, a sharp distinction between public
number of cases the drawing of this distinction was precisely the controversy that was to be resolved by the courts. The following section addresses this issue. Public/Private Distinction The most difficult faced by judges in the British Courts was to establish a public/private distinction in cases of Muslim endowments. The prototype of public waqf was a mosque with no private interests while the paradigm example of a family waqf was a settlement in favour of oneself and one’s children generation after generation with ultimate dedication to a mosque or the poor of a community. However, even in cases of a waqf in favour of a mosque the settlor or his descendants could be the hereditary mutawallī with a hefty salary. This salary at times consumed a substantial part of the income of the waqf. The traditions of the Prophet and the earliest Fiqh treatises did not distinguish between a family waqf and a public waqf, though the term waqf ‘alā (in favour of children) appears in the earliest treatises on waqf written in the ninth century. We also find the terms waqf khāṣ (special) and waqf ‘ām (general) in classical Fiqh texts. The later treatises used the terms waqf ahlī and waqf khayrī to denote family waqf and charitable waqf respectively. However, no separate rules were developed for these two types of awqāf apart from some distinction in procedural issues. The qāḍī had broader powers to supervise the waqf ‘ām/khayrī (general/charitable) as against the waqf khāṣ/ahlī (special/family). The exact distinction between the two types remained elusive because the private and public interests were intermixed in each type. This reflects the social context in which classical Islamic law developed. In that context, a sharp distinction between public
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