Examining the Role of the Ruler in Public Endowment in Iranian Law and Islamic Jurisprudence

Abstract

In public endowment (waqf ʿām), according to the opinion of many jurists, the endowed property is permanently removed from the ownership and possession of the donor. Others, however, believe that the endowed property becomes ownerless (mā lā mālik lah) and therefore does not require a specific owner to be designated. In either case, the transfer or alienation of the endowed property is legally impermissible. According to certain jurists, in this type of endowment, the administration (tawliyah) is entrusted to the individual appointed by the donor (wāqif). However, if the donor has not designated a trustee, the supervision and administration of the endowment fall under the authority of the legitimate ruler (ḥākim sharʿ). Nevertheless, if it becomes evident that the trustee appointed by the donor lacks the necessary qualifications, the legitimate ruler—acting to safeguard the interests of Muslims and the beneficiaries for whom the endowment was made—may replace the trustee. Endowment (waqf) is among those institutions that possess a deeply religious character; therefore, the jurist–guardian (walī-e faqīh) or legitimate ruler plays a significant role throughout its various stages. The ruler participates in issuing legal opinions in his capacity as a jurist (faqīh), in resolving disputes as a judge (qāḍī), and in making critical administrative decisions as a ruler (ḥākim).