The Paradigm of “Preservation of Function” versus “Preservation of the Corpus”: A New Theory for Altering Waqf Property

Abstract

This article aims to provide a jurisprudential and legal reconsideration of the issue of altering waqf property. It begins with the apparent tension between the “preservation of the corpus” and the “preservation of function” and seeks to demonstrate that fidelity to the waqf does not invariably require the unconditional preservation of its physical corpus. In Imami jurisprudence, the governing principle is the sequestration of the corpus and the dedication of its usufruct (habs al-‘ayn wa tasbil al-manfa‘ah), and this principle constitutes the primary impediment to the sale, substitution, and change of use of waqf property. Nevertheless, when the endowed property can no longer serve its intended beneficial use, or when its continued preservation results in the suspension of benefits, deterioration, dispute, loss, or frustration of the settlor’s purpose, the same jurisprudential foundation contains significant theoretical potential for a transition from the “preservation of the physical corpus” to the “preservation of function.” The research method employed in this study is descriptive, analytical, and inferential, and its data are organized on the basis of jurisprudential discussions concerning the principles of possibility, avoidance of futility, custom, expediency, proximity to the settlor’s purpose, priority, the no-harm principle, and justice. The principal finding is that the theory of preservation of function neither authorizes the unrestricted sale of waqf property nor constitutes a utilitarian theory aimed at maximizing revenue; rather, it provides a precautionary criterion for preserving the designated purpose of the waqf when the existing corpus has become ineffective. Accordingly, alteration of waqf property can be justified only where the impossibility of obtaining the intended benefit has been established, repair is given priority over substitution, the closest possible substitute property is acquired, the settlor’s intention is respected, judicial supervision is ensured, and the rights of both present and future classes of beneficiaries are protected. The article ultimately proposes a legal model in which substitution (istibdal) and change of use function as mechanisms for ensuring the continuity of the waqf rather than as means of removing property from waqf status.