The Issues Relating To The Relationship Between Trust Law And Sharia Law
The concept of a trust under English law can be traced as far back as the time of crusades.But it may be noted that Islamic law since at least the 10th century has instituted the concept of “waqf” which is found to be having a number of similarities to the trust.Based on a general comparison several scholars of Islamic law have postulated that Islamic influence was prominent in the development English trust law, in so far as the similarities between the creation of Waqf and trusts under English law .
This paper discusses some the issues relating to the relationship between trust law and sharia law relating to waqf.
Salient Features of Waqf “Waqf” “in essence is the permanent endowment of property for the benefit of a religious, pious or charitable purpose”. “Waqf” being an unincorporated charitable trust developed by Muslim jurists existed either as waqf khairi – an endowment created for a religious or public purpose or waqf ahli or dhuriri – created as a family endowment.
Waqf is defined as “the detention of the corpus from the ownership of any person and the gift of its income or usufruct either presently or in the future to some charitable purpose” There are three basic principles that govern waqf; the trust is required to be irrevocable, continuous (perpetual) and inalienable. There is no particular format prescribed for the creation of waqf under the Islamic law. The intention of the person creating the trust must be made clear and he should specify the purpose for which the trust is being created.
The waqif or the creator of the trust has been the powers to specify the terms and conditions of the operations of the trust . These conditions may relate to the appointment of trustees, selection of beneficiaries out of the trust income and the manner in which the waqf income may be distributed. The founder can appoint himself as the trustee or can retain the power to appoint and/or dismiss the mutawalli or trustees. Origin of Trusts under English Law There are conflicting views on the evolution of the concept of “trust” under English law.
Irrespective of the debates on the Roman or Germanic origin of English trusts, it has been Established, that the concept of trust has evolved “from a medieval English device for holding land know as the use”. Until the nineteenth century, it was thought that Roman fideicommissum formed the basis of the evolution of the concept of English trusts. However, during the nineteenth century this theory was replaced by the scholastic views that Germanic influences were responsible for the development of the idea of trusts in England.
One of the major criticisms about the Roman origin was that while the Roman device was purely based on testaments, the early English people were not in the habit of using wills to create trusts. In fact, a divergence of the purposes between the transactions where in the case a testament the purpose was to ensure a proper passage of the property and in the case of trust it was to ensure an efficient management of the property.
Another view point was put forth by Maitland and Holmes that the concept of English trust could have been based on the fifth century Salic Law which employed a third party Salamannus to facilitate the transfer of property. This theory of the influence of Salic law is reinforced by the fact that the Salic law was brought into force in England in the eleventh century by the Norman conquerors after the withdrawal of the Roman legions from the country. However, this theory has also been criticized on the ground of being superficial on the relevance to earlier theories.