The starting point of this article is that the same impulses present in societies with Western legal systems to manage family wealth over time have been present in Islamic societies as well. But unlike other legal regimes regulating such impulses, waqf law has been largely unresponsive, especially in light of changing typologies of wealth and socio-economic conditions. A number of factors explain the failure of legal doctrine to respond. The first of these is the religious or divine grounding of waqf law, making it difficult for the law to evolve in a responsive and uncontroversial manner, one that does not represent a threat to the fundamental structure of Islamic law itself. Second, the related social norms observed by constituents of Islamic societies have deterred individuals from aggressively planning in ways that contradict "divine" precepts of the law. Furthermore, these norms have fostered an ethos of not taking seriously alternatives to the rules of inheritance. A third consideration has been the statutory response to the problem. Legislative reforms in countries with sizeable Muslim populations have differed strikingly from the legislative reforms with respect to trusts. Trust legislation has progressively eliminated many of the significant impediments to its more efficient, worldwide use. Legislation addressing the waqf has tended more to its overregulation or outright prohibition, sometimes accompanied by expropriation of property currently held in existing waqfs.
Jeffrey A. Schoenblum,
The Role of Legal Doctrine in the Decline of the Islamic Waqf: A Comparison with the Trust,
32 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vjtl/vol32/iss4/8