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Monzer Kahf
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Literally “confinement” or “prohibition,” the Arabic word waq    f (pl., awqāf    ) is used in Islam to mean “the holding and preservation of a certain property for the confined benefit of a certain philanthropy with the intention of prohibiting any use or disposition of the property outside that specific purpose.” The definition indicates the perpetual nature of waq    f; in other words, the term applies to nonperishable property whose benefit can be extracted without consuming the property itself. Therefore, waq   f widely relates to land and buildings, although there is also waq   f of books, agricultural machinery, cattle, shares and stocks, and cash. In North and West Africa, waq   f is called hubs, which literally means “confinement.”

Waqf in History.

The idea of waq   f is as old as the human race. Muslim jurists argue that the first waq   f is the sacred building of the Kaʿbah in Mecca, which the Qurʿān (3:96) mentions as being the first house of worship set aside for the people. Virtually all societies have set aside certain lots of land and buildings as places of worship. For ages, temples, churches, and other forms of construction have been built and devoted to religious practices. Moreover, the pharaohs of Egypt assigned land for the benefit of monks, and ancient Greeks and Romans dedicated properties exclusively for libraries and education. Today, the idea of awqāf is known and practiced all over the world. Awgāf exist in North America as religious and charitable foundations. There are tens of thousands of foundations in the United States alone.

Waqf in Islamic History.

In the history of Islam, the first religious waq   f was the mosque of Qubāʿ in Medina. This mosque was built on the arrival of the prophet Muḥammad in 622. It exists today on the same site with a new and enlarged structure. Six months after it was raised, the Qubāʿ mosque was followed by the mosque of the Prophet in the center of Medina. Mosques, as well as real estate that exclusively provides revenues for mosque maintenance and service expenses, are in the category of religious waq   f.

Philanthropic waq   f is the second kind of waqf. It aims at supporting the poor segments of society and the public interest at large by funding such institutions and activities as libraries, scientific research, education, health services, and care of animals and the environment. It can also be used for loans to small businesses and the construction and maintenance of parks, roads, bridges, and dams. Philanthropic waqf also began in the time of the Prophet Muḥammad. A man called Mukhayriq specified in his will that his seven orchards in Medina be given after his death to Muḥammad. In 626, Mukhayriq died and the Prophet acquired the orchards and made them a charitable waqf for the benefit of the poor and needy. This practice was followed by the companion of the Prophet and his second successor, ʿUmar. When he asked the Prophet what to do with a palm orchard that he had acquired in the northern Arabian city of Khaibar, the Prophet said, “If you like, you may hold the property as waqf and give its fruits as charity.” By the time of the Prophet's death in 632, many other charitable awqāf had been made.

A third kind of waqf was initiated shortly after the death of the Prophet during the caliphate of ʿUmar (635–645). When ʿUmar decided to make a written document of his awqāf in Khaibar, he invited some of the companions of the Prophet to witness the document. Jābir, another companion, says that when the document was released, many real-estate owners made awqāf. Some of them added a condition to the awqāf to ensure that its fruits and revenues first be given to their own children and their descendants and only the surplus, if any, should be given to the poor. This kind of awqāf is called posterity or family awqāf. Unlike foundations in America, which are restricted to religious or philanthropic purposes, awqāf in Islamic society can also be for one's own family and descendants.

Main Characteristics of Waqf.

From a legal point of view, the ownership of waqf property lies outside the person who created the waqf. Some Muslim jurists argue that the right of ownership of waqf belongs to God. Others believe that it belongs to the beneficiaries, although their ownership is not complete in the sense that they are not permitted to dispose of the property or use it in a way different from what was decreed by the founder of the waqf. In this regard, waqf differs from a foundation, since the management of a foundation is usually able to sell its property. This implies that perpetuity is stronger in waqf than in foundations.“

Perpetuity” means that once a property, often real estate, is assigned as waqf it remains waqf forever. Elimination of the waqf character of a property involves a difficult and lengthy procedure. A waqf property can only be exchanged for another property of equivalent value. This exchange requires the approval of the local court. Upon completion of such an exchange, the new property immediately becomes waqf for the same purpose and beneficiaries as the former one. Hence, in theory, perpetuity implies that waqf properties should not decrease. Because of this characteristic, many Muslim jurists maintain that waqf should apply to real estate only. There are jurists who accept the idea of durability or long life of a property as an approximation of perpetuity. Accordingly, books, weapons, machinery, cattle, and money can be made waqf.

To preserve waqf properties, both founders and courts took extra precautions in documenting and preserving waqf deeds. They often insisted on recording these deeds in courts and having them witnessed by renowned people. Courts in many cities and towns kept detailed records of waqf properties as early as the fifteenth and sixteenth centuries. Many of these records are still preserved, and historians study them in Istanbul, Cairo, Fez, Damascus, Jerusalem, Isfahan, and other ancient cities.

Since waqf is a voluntary act of benevolence, conditions specified by the founder must be fulfilled to their letter as long as they do not contradict or violate any sharīʿah (Islamic law) rulings. This implies that revenues of waqf should be used exclusively for the purpose for which the waqf was established and that this purpose cannot be changed by management or supervisory courts as long as it is compatible with sharīʿah on the one hand and is still achievable on the other. If a waqf purpose becomes impossible to achieve, the revenue should be spent on the closest possible purpose; otherwise, it goes to the poor and needy. The condition of permanence covers all the founder's stipulations whether they relate to purpose, distribution of revenues, management, supervisory authority, or some other element.

Waqf creation requires certain conditions, of which the most important are listed below.

  • 1. The property must be real estate or a durable thing. Muslim societies have waqf land, buildings, herds of camels, cows, and sheep, books, jewelry, swords and other weapons, and agricultural tools.
  • 2. The property should be given on a permanent basis. Some jurists approve temporary awqāf only in the case of family awqāf.
  • 3. The waqf founder should be legally fit and able to take such an action. A child, an insane person, or a person who does not own the property cannot create a waqf.
  • 4. The purpose of the waqf must, in the ultimate analysis, be an act of charity from the viewpoints of both sharīʿah and the founder. Hence, waqf for the rich alone is not permissible, because it is not charity.
  • 5. Finally, beneficiaries must be alive and legitimate. Waqf for the dead is not permissible.

Management of Waqf.

In principle, the founder determines the type of management of his or her waqf. The waqf manager is usually called mutawallī or nāẓir. The manager's responsibility is to administer the waqf property in the best interest of the beneficiaries. The first duty of the mutawallī is to preserve the property, then to maximize the revenues of the beneficiaries. The waqf document usually mentions how the mutawallī is compensated for this effort, but if the document does not mention compensation, the mutawallī either volunteers the work or seeks assignment of a compensation from the court.

The judicial system, that is, the court, is the authority of reference with regard to all matters and disputes related to waqf. In the early part of the eighth century, a judge in Egypt established a special register and office to record and supervise awqāf in his area. This culminated in the establishment of an awqāf office for registration and control which was linked to the chief justice, who used to be called the “judge of judges.”

With the decline of Islamic civilization, corruption reached the waqf properties. This called for more governmental interference. Hence, in the early nineteenth century, a special ministry was established for awqāf in the Ottoman Empire, and laws of awqāf were enacted. The most important of these was the Law of Awqāf of November 29, 1863. This law regulated the management and supervision of awqāf. It remained in application in several countries (Turkey, Syria, Iraq, Lebanon, Palestine, and Saudi Arabia) for many years after the dismemberment of the Ottoman Empire in 1918. Presently, most Muslim countries have either ministries or departments of awqāf and religious affairs combined. These ministries control the waqf properties and use their revenues for financing the construction and maintenance of mosques.

Muslim communities in non-Muslim countries have or-ganized their awqāf in accordance with Islamic sharīʿah within the limits of prevailing laws and regulations. For instance, in India, where there is a relatively large Muslim minority, a waqf act was adopted at the federal level in 1954 and the Indian minister of law was made the supervisory authority on waqf. Each state in India has a waqf board that consists of eleven Muslim members.

In the United States and Canada, Muslim communities administer their waqf properties in accordance with the acts and regulations pertaining to foundations. The usual practice is that each Muslim community establishes a nonprofit organization that in turn owns the waqf property, which consists in most cases of the local mosque or Islamic center. In 1975, the North American Islamic Trust (NAIT) was registered in the state of Indiana. One of the main objectives of this nonprofit Islamic organization is to own and promote the waqf of Muslims in North America. A few years later, a sister organization under the same name was registered in the province of Ontario in Canada. NAIT and its Canadian counterpart own and maintain many mosques, Islamic centers, and Islamic schools in North America.

Sociopolitical Role of Waqf.

The permanent nature of waq   f resulted in the accumulation of waq   f properties all over the Muslim lands, and the variety of its objectives provides support for widespread religious and philanthropic activities. The size of waq   f and its objectives play an important role in the sociopolitical life of Muslim societies and communities.

Information extracted from the registers of awqāf in Istanbul, Jerusalem, Cairo, and other cities indicates that waqf lands cover a considerable proportion of total cultivated area. For instance, in the years 1812 and 1813, a survey of land in Egypt showed that waqf represented 600,000 feddan (570,000 acres) out of a total of 2.5 million feddan (2.375 million acres); in 1841, in Algiers, Algeria, the number of lots of awqāf land whose revenues were assigned for the grand mosque was 543; in Turkey, about one-third of its land was awqāf at the turn of the twentieth century; and finally, in Palestine the number of waqf deeds recorded up to the middle of the sixteenth century is 233 containing 890 properties, in comparison with 92 deeds of private ownership containing 108 properties.

Waqf revenues are most frequently spent on mosques. This includes salaries of the imam (prayer leader who delivers the Friday sermon), teachers of Islamic studies, and preachers. With the help of this independent source of financing, religious leaders and teachers have often been able to take social and political positions independent of those of the ruling class. For example, when French troops occupied Algeria in 1831, the colonial authority took control of the waqf property in order to suppress religious leaders who fought against them.

Although religious education is usually covered by awqāf on mosques, education in general has been the second largest recipient of waqf revenues. Since the beginning of Islam in the early seventh century, education has been financed by waqf and voluntary contributions. Even government financing of education used to take the form of constructing a school and assigning certain property as waqf for its running expenses. Awqāf of the Ayyūbid (1171–1249) and the Mamlūk (1250–1517) dynasties in Palestine and Egypt are good examples. According to historical sources, Jerusalem had sixty-four schools at the beginning of the twentieth century, all of which were awqāf. They are also supported by waqf properties in Palestine, Turkey, and Syria. Of these schools, forty were made awqāf by Ayyūbid and Mamlūk rulers and governors. The University of al-Azhar is another example. It was founded in Cairo in 972 and was financed by its waqf revenues until the government of Muḥammad ʿAlī in Egypt took control over the awqāf in 1812.

Waqf financing of education usually covers libraries, books, salaries of teachers and other staff, and stipends to students. Financing was not restricted to religious studies, especially during the rise of Islam. In addition to providing freedom of education, this financing approach helped create a learned class not derived from the rich and ruling classes. At times, the majority of Muslim scholars were from poor and slave segments of the society, and they often strongly opposed the policies of the rulers.

The third big beneficiary of waqf is the poor, the needy, orphans, persons in prison, and so on. waqf revenues also fund health services, which include construction of hospitals and funding for physicians, apprentices, and patients. One of the examples of a health waqf is the şişli Children's Hospital in Istanbul, founded in 1898.

There is also waqf for animals. Examples are the waqf for cats and the waqf for unwanted riding animals, both in Damascus. There are awqāf for helping people go to Mecca for pilgrimage, for helping girls get married, and for many other philanthropic purposes.

Waqf in the Twentieth Century.

During the colonial period of the nineteenth century and much of the twentieth century, the management of waqf continued to follow inherited patterns in most Muslim countries and communities which were subjected to colonial rule, with a few exceptions, such as Algeria and Indonesia. However, the general atmosphere of underdevelopment and backwardness prevalent in the Muslim world also enveloped the waqf properties. In addition, the Western system of education that was introduced by colonial authorities and supported by newly created economic opportunities was a strong blow to traditional education, which was financed by an already debilitated waqf system.

With the independence of most Islamic countries in the middle of the twentieth century came the establishment of national states. The new leadership took various, often negative, stands toward waqf. For instance, many waqf properties in Syria, Egypt, Turkey, Tunis, and Algeria were added to the public property of the government and were distributed through land reforms and other means, although governments in those countries took responsibility for the funding of mosques and some religious schools, including al-Azhar University in Cairo. Many Muslim countries established departments for awqāf and religious affairs for this limited purpose. After being stripped of its developmental and productive content, the word waqf is now used mostly to refer to mosques only.

However, some countries, including Lebanon, Turkey, Jordan, and recently, Algeria, started to revive and develop the properties of waqf. They enacted new laws of awqāf that are helping to recover, preserve, and develop these properties, as well as to encourage their people to create new awqāf.



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