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Published online by Cambridge University Press: 01 September 2020
Two primary impulses have historically motivated the Iraqi Shi'i juristic establishment in its relations with the Iraqi state. The first, deeply embedded in centuries of Islamic jurisprudence, is to achieve maximum autonomy for the Shi'i community from the state. The second has developed more recently in response to the modern state's efforts to extend its hegemonic control over areas that premodern empires were content either to leave to the jurists to administer or at least to share the administration of with jurists. This is to have the state recognize and implement Shi'i rules within parts of the state infrastructure that are of core interest to the juristic establishment. There is an obvious tension between these two desires, nowhere more evident than in the subject of this article—namely, the law pertaining to the creation, management, and liquidation of the Islamic charitable land trust known as the waqf. On the one hand, Article 43 of Iraq's constitution declares the followers of religions and sects to be “free” in administering the waqfs and their affairs, suggesting a strong desire for autonomy and separation from state control. Yet the implementing legislation for this provision extends the existence of a thick state bureaucracy and hands its administration over to juristic authorities. The ultimate irony of this arrangement is that it subjects juristic forces to far more potential interference as a legal matter than they have ever been subjected to, even during the totalitarian rule of the Ba'ath. In the end, a religious establishment historically deeply suspicious of political rulers and political engagement—indeed, one that defines itself by virtue of its separation from the state—now finds itself deeply and dangerously entangled in state political and administrative affairs. This article explores how this came to be and some of the significant consequences that arise from it.
1 For a fuller exposition on Quietism in Najaf throughout Iraq's early history, see Haider Ala Hamoudi, Transparency and the Shi'i Clerical Elite, in Research Handbook on Transparency 142–45 (Ala'i and Vaughn, eds. 2014).
2 Vali Nasr, The Shia Revival: How Conflicts within Islam Will Shape the Future 38–39 (2007).
3 See Qur'an 33:21 (“Certainly you have in the Messenger of God an excellent exemplar for he who hopes in God and the latter day and remembers God much.”). Unless otherwise noted, all translations from the Arabic are mine.
4 Hamid Mavani, Religious Authority and Political Thought in Twelver Shi'ism 4 (2013).
5 Abbas Amanat, From ijtihad to wilyat al-faqih: The Evolving of the Shi'ite Legal Authority to Political Power, in Shari'a: Islamic Law in the Contemporary Context 120, 122 (Abbas Amanat and Frank Griffel eds., 2007).
6 Id.
7 Mavani, supra note 4, at 1.
8 Amanat, supra note 5 at 123 (“Every government was in theory seen as inherently oppressive.”); see also Reidar Visser, Sistani, the United States, and Politics in Iraq: From Quietism to Machiavellianism, 700 Norwegian Institute of International Affairs 6 (2006), available at http://www.historiae.org/documents/Sistani.pdf (“According to Shiite doctrine, supreme political authority on Earth rests with [the] Hidden Imam, meaning that any Shiite ventures into politics carry the potential of usurpation.”); Hamid Algar, The Roots of the Islamic Revolution 25 (1983) (noting, with respect to Iranian clerics at the start of the twentieth century that “[i]t was held . . . that a totally legitimate authority was, in the nature of things, impossible, given the continuing occultation, or absence, of the Imam from the world. It was held that all that could be done in his absence was to limit the inevitable illegitimacy to existing rule.”).
9 Linda S. Walbridge, The Most Learned of the Shi'a: The Institution of the Marja‘ Taqlid 3–4 (2001).
10 Amanat, supra note 5, at 121.
11 Id.
12 Id. at 123.
13 Ruhollah Khomeini, Islam and Revolution: Writings and Declarations of Imam Khomeini 27 (Algar trans., 2002) (“The governance of the [jurist] is a subject that in itself elicits immediate assent and has little need of demonstration, for anyone who has some general awareness of the beliefs and ordinances of Islam will unhesitatingly give his assent to the principle of the governance of the [jurist] as soon as he encounters it; he will recognize it as necessary and self-evident.”).
14 Amanat, supra note 5, at 132.
15 Id.
16 Examples of such interventions abound. Iraq's juristic forces participated in the famed 1920 uprising against the British. Iraq's leading jurist in the early part of the twentieth century, Grand Ayatollah Kashif al-Ghita’, published a manifesto against the promulgation of Iraq's first civil code, the Ottoman Majella, because it did not take sufficient account of Shi'i rules. A later jurist of somewhat lower rank, Muhammad Bahr al-`Ulum, decades later adopted the format of that manifesto to publish his own work decrying the enactment of Iraq's 1959 Personal Status Code. Iraq's leading jurist from the middle part of the twentieth century until his death in 1970, Muhsin al-Hakim, issued a fatwa describing the joining of the Communist Party as an act of apostasy. Abbas Kadhim, Forging a Third Way: Sistani's Marja'iyya between Quietism and Wilayat al-Faqih, in Iraq, Democracy and the Future of the Muslim World 69–73 (Ali Paya and John Esposito eds., 2011). See also Rula Jurdi Abisaab & Malek Abisaab, The Shi'ites of Lebanon: Modernism, Communism, and Hizbullah's Islamists 90–91 (2014) (respecting Hakim's fatwa). None of these actions was Quietist—to the contrary, each of them was a response to political and social changes taking place that the jurists found threatening and dangerous.
17 Kadhim, supra note 16, at 76–78 (describing various Sistani-led interventions into political and social affairs, which include objecting to the formation of an unelected constitution drafting commission, opposing the 2004 interim constitution known as the Transitional Administrative Law, and managing a truce of sorts that spared the city of Najaf from destruction during a military confrontation between U.S. forces and Muqtada al-Sadr's militia, known as the Mahdi army).
18 A Shi'i jurist who has attained the rank of mujtahid is frequently referred to as a marja’ al-taqlid, or a “source of emulation.” Marja'iyya refers to the broader, informal hierarchical institution of juristic training. Walbridge, supra note 9, at 4.
19 Haider Ala Hamoudi, Navigating the Najaf Mantra with the Four Grand Ayatollahs, Daily Star (Lebanon), November 5, 2009 (quoting al-Fayyadh).
20 Haider Ala Hamoudi, Beyond the State and the Hawza: Legal Pluralism and the Ironies of Shi'i Law, in Regulating Religion in Asia: Norms, Modes, and Challenges 298, 304 (Jaclyn L. Neo, Arif A. Jamal & Daniel P.S. Goh eds., 2019).
21 See supra note 16 for specific examples.
22 Article 2, Section 1, Dustūr Jumhurīyat al-‘Irāq [The Constitution of the Republic of Iraq] of 2005 [hereinafter Iraq Constitution].
23 Haider Ala Hamoudi, Negotiating in Civil Conflict: Constitutional Construction and Imperfect Bargaining in Iraq 189 (2014).
24 Id. at 189–96 (describing some of the more significant cases that have arisen).
25 Id. at 198.
26 Hamiudi, supra note 1, at 147–51.
27 John Davison, In Iraqi Holy City, Row over Female Violinist at Soccer Match Shows Social Rift, Reuters (August 7, 2019).
28 See, e.g., Kadhim, supra note 16; Rahimi, Babak, Democratic Authority, Public Islam, and Shi'i Jurisprudence in Iraq and Iran: Hussain Ali Montazeri and Ali Sistani, 33 International Political Science Review 193, 194 (2012)CrossRefGoogle Scholar; Yizhak Nakash, Reaching for Power: The Shi'a in the Modern Arab World 17–18 (2007). Perhaps the most sanguine contemporary commentator is Juan Cole, who has described Najaf's efforts as an Islamic Reformation of sorts, fusing the ideas of the Enlightenment with those of traditional Islamic jurisprudence, in a fashion that is among the “more thorough-going and institutionally promising in modern history.” Juan Cole, Ayatollahs and Democracy in Contemporary Iraq 5, 24–25 (2006).
29 Haider Ala Hamoudi & Mark Cammack, Islamic Law in Modern Courts 475–77 (2018).
30 Article 41, Iraq Constitution of 2005. The English translation of the Iraqi Constitution is taken from the Constitute Project, https://www.constituteproject.org/constitution/Iraq_2005.pdf?lang=en.
31 Id. at art. 43(1)(b).
32 Id. at art. 43(1).
33 Haider Ala Hamoudi, Islamic Law in a Nutshell vi, ix (2019).
34 See Hamoudi, supra note 23, at 99.
35 Stefan Talmon, The Occupation of Iraq: Volume 2: The Official Documents of the Provisional Authority and the Iraqi Governing Council (Documents in International Law) 292 (2012) (reproducing Governing Council Resolutions 29 of August 30, 2003, and 68 of October 22, 2003).
36 The Law of the Shi'i Waqf Bureau Law No. 57 of 2012, art. 14. See also infra the discussion of the Waqf Bureau laws of 2012 (discussing the law in greater detail).
37 Id.
38 Id. art. 4(2); see also infra the discussion of the Waqf Bureau laws of 2012.
39 Id. at art. 15.
40 Peter C. Hennigan, The Birth of a Legal Institution: The Formation of the Waqf in Third-Century A.H. Hanafi Legal Discourse xiii (2003).
41 Siraj Sait & Hilary Lim, Land, Law and Islam: Property and Human Rights in the Muslim World 147 (2006).
42 Farhat Ziadeh, Land Law and Economic Development in Arab Countries, 33 American Journal of Comparative Law 93 (1985); see also Sait & Lim,supra note 41, at 150.
43 Sait & Lim, supra note 41, at 150.
44 Id. See also Hanna Batatu, The Old Social Classes and the Revolutionary Movements of Iraq: A Study of Iraq's Old Landed and Commercial Classes and of its Communists, Ba'thists and Free Officers 53 (1978) (noting that only 1.4 percent of Iraq's land in 1958 was privately owned through mulk, with 14.6 percent being ’amiri land).
45 Farhat Ziadeh, Property Law in the Arab World 60–61 (1979).
46 Richard van Leeuwen, Waqfs and Urban Structures: The Case of Ottoman Damascus 108–09 (1999).
47 Sait & Lim, supra note 41, at 150–51.
48 For example, Shi'i jurists indicate that as a default, males and females share equally in a waqf designated for a grantor's children, unless custom dictates that females would be excluded by such a formulation, in which case they would be so excluded. See, e.g., 2 Ali Al-Sistani, Minhaj Al-Saliheen ¶ 1536 (2008) [hereinafter Sistani]. By contrast, a designation of “sons” (’ibna) as beneficiaries would necessarily exclude females, while a designation of “descendants” (dhurriya) would necessarily include them. Sistani,supra, at ¶ 1538. The interesting paradox this creates, much discussed by jurists and commentators alike, is that the waqf rules can be used to circumvent the mandatory inheritance rules, which require that particular relatives receive specified amounts on the death of their relative. Hamoudi & Cammack,supra note 29, at 541. Hence, for example, a father seeking to exclude his daughters from inheriting any of his estate might create a waqf from his landholdings and exclude his daughters as beneficiaries, even though his daughters would ordinarily be entitled to a share of their father's estate upon death under Islamic inheritance law. This artifice to avoid inheritance rules was largely deemed permissible, though there are some limitations among some jurists, from the Sunni Maliki school, on the extent to which daughters in particular can be excluded. 7 Encyclopedia of Islamic Law 240 (Arif Ali Khan et al. eds., 2006) (quoting Khalil ibn Ishaq). The broader constraint on the practice was that any waqf created on a deathbed was invalid beyond the one-third of the estate that a decedent can always bequeath. Hamoudi & Cammack, supra note 29, at 541. What this means is that a grantor who created a waqf that excluded his female kin would have to do it while alive and well, and thus endow his property to God (and constrain its use accordingly) at that time. Hamoudi & Cammack, supra note 29, at 541; see also Wahba al-Zuhaili, al-Wasaya wa al-Waqf fi al-Fiqh al-Islami [Wills, Guardianship Appointments, and Waqfs in Islamic Jurisprudence] 199 (2d ed. 1998).
49 Van Leeuwen, supra note 46, at 11–12.
50 Sait & Lim, supra note 41, at 152–53.
51 Id.
52 Van Leeuwen, supra note 46, at 43.
53 Hamoudi & Cammack,supra note 29, at 532–33.
54 Sistani, supra note 48, at ¶ 1484.
55 See Mahkamat al-Tamyīz [Court of Cassation], Personal Status Panel, decision No. 3657 of October 20, 2010 (Iraq), in Hamoudi & Cammack, supra note 29, at 539.
56 Van Leeuwen, supra note 46, at 63.
57 Hoexter, Miriam, Adaptation to Changing Circumstances: Perpetual Leases and Exchange Transactions in Waqf Property in Ottoman Algiers 4 Islamic Law & Society 319 (1997)CrossRefGoogle Scholar.
58 Id. See also Van Leeuwen,supra note 46, at 63.
59 Hoexster, supra note 57, at 320.
60 Van Leeuwen, supra note 46, at 61.
61 Sistani, supra note 48, at ¶ 100.
62 Id.
63 Id. at ¶ 103.
64 Hamoudi & Cammack,supra note 29, at 549–50. It might be noted that none of these rules apply to mosques, as jurists across the schools and sects almost always took the position that once endowed, a mosque would remain one forever.
65 See id. at 540–41 (describing debates respecting grantors being beneficiaries of waqfs).
66 See, e.g., Jon E. Mandaville, Usurious Piety: The Cash Waqf Controversy in the Ottoman Empire, 19 International Journal of Middle East Studies 289, 293 (1979).
67 Cf. Van Leeuwen,supra note 46, at 87 (noting that the long-standing practice of state-owned land never being dedicated as waqfs began to change for the first time in the twelfth century CE).
68 Sait & Lim,supra note 41, at 150.
69 See supra the discussion of the nature and purposes of the waqf.
70 Timur Kuran, The Provision of Public Goods under Islamic Law: Origins, Impact, and Limitations of the Waqf System, 35 Law and Society Review 841, 843. Kuran makes the point that these benefits did not extend into modernity because of the lack of flexibility inherent in the waqf structure. This is a point I engage below, in the discussion of the mechanisms of state control of the waqfs. See also Batatu, supra note 44, at 8 (pointing out the manner in which lands not protected by waqf in Ottoman era Iraq were subject to frequent confiscation).
71 Sait & Lim,supra note 41, at 156 (quoting J. Bremer); contra Kuran, Timur, Legal Roots of Authoritarian Rule in the Middle East: Civic Legacies of the Islamic Waqf, 64 American Journal of Comparative Law 419, 421 (2016)CrossRefGoogle Scholar (claiming that while the waqf had the potential to serve as a vehicle for political accountability, in fact it “impoverished civil society and made democratization more difficult”).
72 Van Leeuwen,supra note 46, at 87 (describing the Ayyubid use of the waqf to support policies of the ruling elite).
73 Id.
74 Id. at 79–82, 97.
75 Id. at 97.
76 Hoexter, supra note 57, at 322.
77 Van Leeuwen,supra note 46, at 111.
78 See id. at 68.
79 Id. at 75–84. In addition, as a historical matter, jurists supplied the cadres of the judiciary, which would supervise waqfs. Id. at 68. This latter factor is less relevant today, given highly professionalized judiciaries in most Muslim majority states whose training is in modern, largely transplanted, law rather than the methods and modalities of juristic shari'a training.
80 Sait & Lim, supra note 41, at 149–50; Kuran, supra note 70, at 854.
81 See, e.g., Van Leeuwen, supra note 46, at 76–77 (describing long-standing Ottoman policy of offering juristic appointments with plush salaries funded by waqf).
82 See, e.g., Clark Benner Lombardi, State Law as Islamic Law in Modern Egypt: The Incorporation of the Shari'a into Egyptian Constitutional Law 67–68 (2006) (describing decline of law guilds in Egypt); Hamoudi & Cammack,supra note 29, at 27–28; Bernard G. Weiss, Spirit of Islamic Law 188–89 (1998).
83 Weiss, supra note 82, at 189.
84 See Wael B. Hallaq, The Impossible State: Islam, Politics, and Modernity's Moral Predicament 29–30 (2013) (“[T]he modern state is constituted by sovereign will, and . . . sovereign will manifests itself through law.”).
85 Kuran, supra note 70, at 887–89.
86 Id.
87 Id. at 871–72.
88 See generally Hoexter, supra note 57.
89 See, e.g., Abul Fata Mahomed Ishak & Ors. v. Rasamaya Dhur Chowdhuri & Ors., (1881) ILR 18 (Cal.) 399 (India), https://indiankanoon.org/doc/759864/.
90 See Farhat J. Ziadeh, Lawyers, The Rule of Law, and Liberalism in Modern Egypt 132 (1968); Guy Bechor, The Sanhuri Code, and the Emergence of Modern Arab Civil Law (1932 to 1949) 222 (2007).
91 Haider Ala Hamoudi, Arabs in the (Inter)national, 10 Santa Clara Journal of International Law 187, 198 (2012).
92 Hamoudi, Haider Ala, The Muezzin's Call and the Dow Jones Bell: On the Necessity of Realism in the Study of Islamic Law, 56 American Journal of Comparative Law 423, 437 (2008)CrossRefGoogle Scholar.
93 Hamoudi, supra note 91, at 198.
94 Ziadeh, supra note 90, at 127 (“describing jurists as fighting ‘tooth and nail against . . . proposals to modify’ the waqf”).
95 Bechor, supra note 90, at 223.
96 See, e.g., id. at 223–25 (describing reforms in Egypt).
97 Ziadeh, supra note 90, at 127.
98 See id. at 129–33.
99 Id. at 130 (describing case of Mustafa Sabri, described as an apostate for his advocacy in favor of waqf abolition).
100 Law Concerning the Rules of Waqf Law No. 48 of 1946, art. 5 (Egypt); J.N.D. Andersen, Recent Developments in Shari'a Law IX, 42 Muslim World 257, 260–61 (1952) (quoting Article 5 of the law).
101 Specifically, the Explanatory Memorandum states that Maliki jurists contemplated a reversion of a waqf to the grantor's heirs if the beneficiaries of a family waqf died out. As explored above in the discussion of the nature and purposes of the waqf, this is true, albeit quite different from declaring a waqf to be at an end as a matter of law after a certain amount of time. Andersen, supra note 100, at 261.
102 Malcolm Yapp, The Near East since the First World War: A History to 1995 (1996).
103 Legislative Edict No. 76 of May 16, 1949, on the Abolition of the Family and Mixed Waqf, and the Dissolution of Family and Mixed Waqfs and Their Liquidation.
104 Hoexter, supra note 57, at 320 n.3, 321.
105 Bechor, supra note 90, at 227–31.
106 Law No. 180 of 1952, art. 1 (Law Abolishing All Waqfs But Charitable [Waqfs]) (Egypt).
107 Id.
108 Bechor, supra note 90, at 231; see also Daniela Pioppi, Privatization of Social Services as a Regime Strategy, in Debating Arab Authoritarianism: Dynamics and Durability in Nondemocratic Regimes 131 (Oliver Schlumberger ed., 2007) (describing the royal family and other landed agrarian elites as particular targets of the Nasser reform efforts).
109 Law No. 247 of 1952, art. 1 (Law on Review of the Charitable Waqfs and Reforming Its Revenues [to Serve] Those In Need) (Egypt).
110 Pioppi,supra note 108, at 131.
111 Law No. 247 of 1952, art. 2 (Egypt).
112 Id.
113 Id. art. 4.
114 Id. art. 5.
115 Law No. 649 of 1953, art. 1 (Law on the Ending of Hikr on Waqf Properties) (Egypt).
116 Law No. 92 of 1960, art. 1 (Law Restating the Organization of the Ending of Hikr on Waqf Properties in the Southern Province) (Egypt).
117 Law No. 152 of 1957, art. 1 (Law on Organizing the Exchange of Agricultural Land Under Waqf to Those In Need) (Egypt).
118 Law No. 44 of 1962 (Law on Delivering the Properties That the Waqf Ministry Manages to the Agrarian Reform Committee and the Local Council) (Egypt).
119 Sait & Lim, supra note 41, at 162–63 (offering examples of Libya, Tunisia, the United Arab Emirates, Lebanon, and Kuwait).
120 See, e.g., Maylasia International Islamic Finance Centre, Waqf: Realising the Social Role of Islamic Finance 2 (2015), http://www.mifc.com/index.php?ch=28&pg=72&ac=130&bb=uploadpdf (describing waqfs in Malaysia dedicated to charitable activities).
121 See, e.g., id. (referring to the waqfs as corporations with wholly owned subsidiaries).
122 Phebe Marr, The Modern History of Iraq 52–53 (2d ed. 2012).
123 Hamoudi & Cammack,supra note 29, at 329.
124 Id.
125 Id.
126 Kristen A. Stilt, Islamic Law and the Making and Remaking of the Iraqi Legal System, 36 George Washington International Law Review 695, 748 (describing a 1947 proposal that ultimately failed).
127 Hamoudi & Cammack,supra note 29, at 329.
128 Personal Status Code Law No. 188 of 1959, art. 89(4). The manner in which this was originally achieved was through extending to all property the Civil Code's rules of inheritance as concerns the right of tasarruf in ’amiri lands. Andersen, J.N.D., Changes in the Law of Personal Status in Iraq, 12 International & Comparative Law Quarterly 1026, 1028 (1963)Google Scholar. The hope seemed to be that Islamist elements would not find the new measures troublesome, given that the Civil Code provisions had been in force for some time, and they did not seem to garner significant resistance. Unsurprisingly, the ploy did not seem to work. It was far less controversial for the state to adjust rules of succession over what are technically state granted rights of use of state owned lands than it is for the state to derogate from Qur'anic verse as to the inheritance rights of private owners of property.
129 Andersen, supra note 128, at 1029; Mahkamat al-Tamyīz [Court of Cassation], Personal Status Panel, decision No.11 of March 28, 1964 (Iraq); Mahkamat al-Tamyīz [Court of Cassation], Personal Status Panel, decision No. 2512 of 2007 (Iraq).
130 Ahmed Al-Kubaisi, 2 Personal Status in the Fiqh, The Courts and the Law 283–84 (2d ed. 2007).
131 Liora Lukitz, Iraq: The Search for National Identity 129 (Taylor & Francis e-Library 2005) (1995).
132 Id.
133 Id.
134 Article 1 of the same law defines a shared waqf as one where only part of the proceeds benefit family members, with the rest going to another religious or charitable purpose.
135 Such a regulation, which is beyond the scope of this article to review, was in fact issued later the same year. Al-Kubaisi, supra note 130, at 287.
136 See Law Concerning the Rules of Waqf Law No. 48 of 1946, art. 5 (Egypt).
137 Sait & Lim, supra note 41, at 152–53.
138 See Iraq Mahkamat al-tamyīz [Court of Cassation] decision No. 1595 of 1955 (limiting the effect of a provision of the 1955 Edict prohibiting a grantor from excluding female beneficiaries, as Islamic law would permit the grantor to do).
139 See, e.g., Hamoudi & Cammack,supra note 29, at 664–65 (respecting the manner in which tightly knit social structures prevent extensive commingling of men and women in social settings).
140 Agrarian Reform Law No. 30 of 1958 (Iraq).
141 For example, Article 1 sets limits on how much agricultural land any individual can own, and further indicates that one cannot be a beneficiary in waqf of land exceeding this amount. Id. at art. 1; see also Agrarian Reform Law No. 117 of 1970, art. 3(2) (Iraq) (containing a similar provision). This does not, importantly, force the liquidation of family waqfs, no matter how vast, because the focus is on the interest of each individual beneficiary, not the land under waqf as a whole. Article 5(2) deems family waqfs created after the date of the enactment of the law invalid to the extent that they result in any individual reducing their outright ownership of agricultural land below the limits imposed by law. Id. at art. 5(2); see also Article 7(2) of Agrarian Reform Law No. 117 of 1970 (Iraq). In other words, an individual with large landholdings cannot avoid the forced redistribution of the 1958 law by placing the land in waqf for the benefit of family members. Quite plainly, these laws have only the most modest of effects on the operation of family waqfs. See also Batatu, supra note 44, at 15 (describing estates under waqf as “unaffected” by the 1958 Agrarian Reform Law).
142 On hikr in the context of Egypt, see the discussion in the previous section, pertaining to the death of the waqf in much of the Sunni world.
143 Ziadeh, supra note 45, at 66; Federal Judicial Authority Law No. 3 of 1983, art. 1 (Iraq); The Law of Extinguishing of the Right of Hikr Law No. 138 of 1960, art. 1 (Iraq).
144 According to the U.S. Energy Information Administration, in 2017, Iraq earned 88 percent of its government revenue from oil. U.S. Energy Information Administration, Iraq's Oil Production Has Nearly Doubled over the Past Decade, Today in Energy (January 11, 2019), https://www.eia.gov/todayinenergy/detail.php?id=37973.
145 Van Leeuwen,supra note 46, at 108–09.
146 Hamoudi & Cammack,supra note 29, at 28–29.
147 In fact, Shi'i objections to Sunni state control over Shi'i waqfs predate the Iraqi state, which is the focus of the main text. Specifically, as early as 1838, Shi'i jurists raised concerns over Ottoman era Tanzimat reforms that asserted control over Shi'i waqfs. Ultimately, the Ottomans relented and settled for indirect control, rather than exacerbate relations with Shi'i Iran. Yitzhak Nakash, Shiˋis of Iraq 236 (1994).
148 Law of the Administration of Waqfs No. 27 of 1929 (Iraq).
149 Law of the Administration of Waqfs No. 27 of 1929 (Iraq) [hereinafter 1929 Waqf Administration Law].
150 Id.
151 Id. at art. 4.
152 See Nakash, supra note 147, at 236–37 (referring to “tight” government control over Shi'i waqfs).
153 1929 Waqf Administration Law art. 3.
154 Id.
155 Id. at arts. 7–9.
156 See Law on the Administration of Waqfs Law No. 107 of 1964 (Iraq) [hereinafter 1964 Waqf Administration Law]; Law on the Administration of Waqfs Law No. 64 of 1966 [hereinafter 1966 Waqf Administration Law].
157 1964 Waqf Admin Law art. 1(7); 1966 Waqf Admin Law art. 1(7)
158 See 1964 Law, art. 1(6)(b) (classifying all unsound waqfs as “regulated”), and art. 2(1)(indicating that all regulated waqfs are administered by the status Waqf Bureau). The 1966 Law has identical provisions. 1966 Law arts. 1(6)(b), 2(1).
159 1964 Waqf Administration Law art. 1(5); 1966 Waqf Administration Law art. 1(5).
160 1964 Waqf Administration Law art. 6(1).
161 1966 Waqf Administration Law art. 6(1).
162 See supra the discussion of nature and purposes of the waqf.
163 Mahkamat al-Tamyīz [Court of Cassation] Decision No. 1 and 2 (Consolidated) of March 17, 1973 (Iraq).
164 Id.
165 Id.
166 Regulation of Trustees Law No. 46 of 1970.
167 Regulation of Trustees Law No. 46 of 1970 arts. 1–3.
168 Id. at art. 3.
169 Id.
170 Notably, the law has no provisions respecting state administered appointment of trustees for family waqfs. This is probably because, as noted in the discussion of family waqfs, secularist and nationalist efforts as concerned the family waqfs were directed not toward exercising control over them, but rather toward abolishing them entirely.
171 The Law on Registration of Real Property No. 43 of 1971.
172 Id. at art. 259.
173 Al-Kubaisi,supra note 130, at 291.
174 Cf. Sait & Lim, supra note 41, at 153 (noting alternative positions among some Maliki and Shi'i jurists).
175 The name of the state body charged with administering waqf law and policy has changed many times over Iraqi history. At the time of the 1929 Waqf Administration Law, there was a Ministry of Waqfs. 1929 Law art. 2. The same is true in the 1964 Waqf Administration Law. 1964 Law art. 2. However, by Order No. 18 of 1966, the Ministry of Waqfs was transformed into the Waqf Bureau (Diwan al-Awqaf). Currently, as noted in the discussion of the Waqf Bureau Laws of 2012, there are two Waqf Bureaus, one for Shi'i waqfs and the other for Sunni waqfs. These sorts of administrative changes are beyond the scope of this article, as they do not appear to relate in any meaningful way to the level of state control over the waqf so much as the particular entity exercising that control on behalf of the state.
176 See, e.g., Nakash, supra note 147, at 237 (discussing Shi'i complaints in 1931 that there was an insufficient allocation of state-generated waqf funds to the Holy Shrines).
177 See, e.g., Regulation of the Holy Shrines Law No. 42 of 1950 [hereinafter 1950 Shrines Regulation], replacing Regulation of the Holy Shrines Law No. 25 of 1948. 1950 Shrines Regulation, supra, at art. 35.
178 1950 Shrines Regulation, supra note 177, at arts. 2–7 (concerning the appointment and functions of the sadin, or primary custodian responsible for the general operation and maintenance of the Holy Shrines); arts. 8–13 (concerning the appointment and functions of the shrine attendants).
179 Id. at arts. 24–26.
180 Id. at art. 3(2). See also id. at art. 17(b) (indicating that the primary custodian may be discharged for failure to report a gift to the Waqf Directorate).
181 Law on the Administration of the Holy Shrines Law No. 25 of 1966 [hereinafter 1966 Holy Shrines Law].
182 Id. at art. 5(4).
183 The precise term that I have translated as “waqf without a trustee” in Article 4 is “al-waqf al-munhal,” or the dissolved waqf. This surely is not what is intended, as there is no need for a trustee for a waqf that has already been dissolved.
184 1966 Holy Shrines Law arts. 3–4.
185 Haider Ala Hamoudi, You Say You Want a Revolution: Interpretive Communities and the Origins of Islamic Finance, 48 Virginia Journal of International Law 249, 267–69 (2008).
186 This passage is commentary on a 2005 law, discussed at length infra, in the section of juristic assumption of state control over the waqfs in Iraq since 2003. It suffices to note here that the definition used in that law is nearly identical to the one used in the 1966 law referenced in the main text and therefore the commentary is equally applicable here.
187 Harith Hasan al-Qarawee, The “Formal” Marjà: Shìi Clerical Authority and the State in Post-2003 Iraq, 46 British Journal of Middle Eastern Studies 481, 494 (2019).
188 Law No. 108 of 1984 (Iraq) (amending 1966 Holy Shrines Law).
189 Id. at art. 2.
190 See Marr, supra note 122, at 266, 319–20 (noting onset of war against Iran in 1980 that lasted eight years, followed shortly thereafter by a war against Kuwait that began in 1990, which itself was followed by the imposition of U.N. sanctions, which lasted until the fall of the Ba'ath regime in 2003).
191 See notes 13–15 supra and accompanying text.
192 Haider Ala Hamoudi, Wasfi H. Al-Sharaa & Aqeel Al-Dahhan, The Resolution of Disputes in State and Tribal Law in the South of Iraq: Toward a Cooperative Model of Pluralism, in Negotiating State and Non-State Law: The Challenge of Global and Local Legal Pluralism 215–60, at 244 (Michael A. Helfand ed., 2015).
193 Andrew Arato, Constitution Making under Occupation: The Politics of Imposed Revolution in Iraq 228–29 (2009).
194 Id. at 22–23.
195 Talmon,supra, note 35 at 292.
196 Id.
197 Harith Hasan, Religious Authority and the Politics of Islamic Endowments in Iraq (Carnegie Middle East Center, March 29, 2019), https://carnegieendowment.org/files/03_19_Hasan_Islamic_Endowments_final.pdf.
198 Talmon, supra note 35, at 330 (reproducing Governing Council Resolution 68 of October 22, 2003 (Iraq)). While beyond the scope of this article, it is worth noting that in the aftermath of the division of waqf administration by sect, disputes erupted as to which endowments were Sunni and which were Shi'i. In general, Sunni administrators wished to rely on the designations laid out by the Ba'ath-era ministry, and their Shi'i counterparts insisted that these designations had long been biased against the Shi'a, and that a new means of categorization was necessary. A committee was formed to address this, and yet it rarely reached consensual resolution with respect to contested sites. Hasan, supra note 197. The disputes between the sects respecting which waqfs were Sunni and which were Shi'i is worth a separate article of its own.
199 Talmon, supra 35, at 330.
200 Id.
201 See Hamoudi, supra note 23, at 139–40 (noting Saghir's affinity to the clerical elite); see also Husayn al-Shami, Facebook, https://www.facebook.com/%D8%A7%D9%84%D8%B3%D9%8A%D8%AF-%D8%AD%D8%B3%D9%8A%D9%86-%D8%A8%D8%B1%D9%83%D8%A9-%D8%A7%D9%84%D8%B4%D8%A7%D9%85%D9%8A-755633621174646/ (Arabic) (last checked December 6, 2019) (noting affiliations with clerical elites, juristic training, and current position as president of a Baghdad-based Shi'i university).
202 See Hasan, supra note 197 (noting that much of Najaf's discontent with Shami arose from accusations of corruption and mismanagement made against him).
203 Interestingly, it was not clear at the time that the Governing Council, derided by most commentators as toothless and a form of “window dressing” to obscure near total American control over Iraq, had any authority to implement its resolutions concerning the waqf. See Arato, supra note 193, at 20. This position is reinforced by the fact that the United States blocked a highly publicized Governing Council Resolution reasserting juristic rules in personal status law on the theory that Iraqi law could only be created by the occupiers during the period of occupation. Hamoudi,supra note 23, at 99. By contrast, nobody within the United States occupying authority seems to have objected to the rather brazen assumption of legislative power as concerns the waqf reflected in Resolution 68, discussed in the main text. Instead, Resolution 68, which never received the imprimatur of the occupation authority, was fully recognized within Iraqi courts. See Personal Status Court of Adhamiyya decision No. 443 of November 7, 2005 (Iraq); Mahkamat al-Tamyīz [Court of Cassation], decision No. 2338 of November 7, 2005 (Iraq) (both referencing waqf “bureaus” rather than a waqf ministry). The entire episode demonstrates not only the intense and long-standing distaste of the rising Shi'i leaders toward the traditional state administration of the waqfs, explored at length in the main text, but also the relative indifference of other forces to stand in their way, in contradistinction to personal status. See id. at 386 (describing buildup to and subsequent invasion of Iraq in 2003).
204 See supra notes 30–32 (discussing Article 43 of the Iraq Constitution).
205 See Vali Nasr, The Shia Revival: How Conflicts within Islam Will Shape the Future 189 (2007) (describing the confirmation of Shi'i dominance in Iraq as early as the January 2005 elections).
206 Hamoudi,supra note 23, at 37.
207 See supra the discussion of the administration of the Holy Shrines (noting legislative reference to the highest jurist in Najaf).
208 Law on the Management of the Holy Shrines and the Distinguished Shi'i Cemeteries Law No. 19 of 2005, art. 4 (Iraq).
209 See note 187 supra and accompanying text.
210 See Law of the Sunni Waqf Bureau Law No. 56 of 2012 (Iraq) [hereinafter Sunni Waqf Bureau Law]; Law of the Shi'i Waqf Bureau Law No. 57 of 2012 (Iraq) [hereinafter Shi'i Waqf Bureau Law].
211 Shi'i Waqf Bureau Law art. 2.
212 Article 2, Iraq Constitution of 2005.
213 Shi'i Waqf Bureau Law, supra note 210, at art. 4(1).
214 Id. at art. 4(2). Interestingly, the comparable Sunni provision requires the permission of “a consensus of the Distinguished Jurists for Proselytization and Fatwas,” thereby similarly devolving power to a body of nonstate authorities, though not to any single individual. Sunni Waqf Bureau Law art. 4(2). The distinction is logical, given the lack of any sort of hierarchy within Sunni Islam that compares to that which exists within contemporary Shi'ism.
215 Respecting the supposed commitment of the Najaf juristic authorities generally, and Sistani in particular, to Quietism, see supra the discussion in the introduction.
216 Article 43, Iraq Constitution of 2005. Indeed, this may very well be why the Waqf Bureau is not a ministry, yet its head has all of the powers and perquisites that attend to a minister. If the head were an actual minister, then under Article 43 of the Constitution, parliamentary approval would be required to seat the position.
217 Shi'i Waqf Bureau Law, supra note 210, at art. 7(1).
218 Id. at art. 6(1).
219 Id.
220 Id.
221 Id. at art. 7.
222 Id.
223 Id. at art. 12.
224 Id.
225 See supra notes 163–65 (concerning Court of Cassation approach for the approval of waqf exchanges).
226 Shi'i Waqf Bureau Law, supra note 210, at art. 10(1).
227 Id. at art. 10(2).
228 Id. at art. 14.
229 See supra the discussion of the death of the Sunni waqf.
230 Hasan, supra note 197.
231 John Davison, In Iraq Holy City, Row over Female Violinist Shows Social Rift, Reuters (August 7, 2019), https://www.reuters.com/article/us-iraq-society/in-iraqi-holy-city-row-over-female-violinist-at-soccer-match-shows-social-rift-idUSKCN1UX146.
232 Shi'i Waqf Bureau Law, supra note 210, at art. 15.
233 The ambiguities inherent in the definition of whom the highest jurist might be, and the consequent possibilities of state interference, are also noted by al-Qarawee. See supra notes 186–88 and accompanying text (“there is no easy way to know exactly who the most emulated mujtahid is, nor is the practice of emulation straightforwardly measurable. It can be argued that in formalizing this authority, the Iraqi state became an actor in determining to whom this status would be given after Sistani.”). Al-Qarawee also raises the possibility that other nonstate actors, and in particular the Shi'i militias formed to combat the Islamic State after its takeover of Mosul, may also play a role. Al-Qarawee, supra note 187, at 15.
234 Hamoudi,supra note 23, at 37; cf. Hasan, supra note 197 (noting a competition of sorts between Sistani and another prominent senior jurist, Muhammad Sa'eed al-Hakeem, over control of the waqfs).
235 See Paul McGeough, The Struggle to Succeed Grand Ayatollah Ali Sistani, Foreign Affairs (May 23, 2012), https://www.foreignaffairs.com/articles/middle-east/2012-05-23/struggle-succeed-grand-ayatollah-ali-sistani (referencing Sistani as being eighty-two years old in 2012).
236 See Devin J. Stewart, The Portrayal of an Academic Rivalry: Najaf and Qum in the Writings and Speeches of Khomeini, 1964–78, in Most Learned of the Shi'a: The Institution of the Marjaʻ Taqlid 216, 222 (Linda S. Walbridge ed., 2001) (describing struggle between Khomeini and Abul Qasim al-Khu'i for position of Najaf's highest jurist upon the death of Muhsin al-Hakim in 1970); Al-Qarawee, supra note 187, at 14.
237 Law No. 41 of 2016, art. 1, Amendment to the Law Permitting the Dissolution of Family Waqfs No. 1 of 1955 (Iraq).
238 Id. at art. 1.
239 See supra notes 134–39 and accompanying text.
240 Shi'i Waqf Bureau Law, supra note 210, at art. 14.
241 See supra notes 50–66 and accompanying text (noting the permanent and irrevocable nature of the waqf across schools and sects).
242 Hasan, supra note 197 (noting that much of this comes from revenue derived from the Holy Shrines themselves).