Usurious Piety: The Cash Waqf Controversy in the Ottoman Empire

Author(s): Jon E. Mandaville

Source: International Journal of Middle East Studies, Vol. 10, No. 3 (Aug.,
1979), pp. 289- 308
Published by: Cambridge University Press
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Int. J. Middle East Stud. IO (1979), 289-308 Printed in Great Britain

Jon E. Mandaville

USUR I OUS PIETY: THE CA SH WA QF

C ON TR OV ER SY IN TH E O TT O MA N EMPIR E
Among the various institutions and practices singled out as distinctly Ottoman
contributions to Islamic civilization, one has drawn surprisingly little comment
and analysis.I Neither so eye-catching as the devirme system nor as fundamental
as the kanun, it still emerges as an important factor in Ottoman, thence Islamic,
history. This is the legitimized practice of usurious piety, the waqf al-nuqiid (pl.
awqaf al-nuqud ), the establishment of a trust with money the interest from
which might pay the salary of a teacher, or preacher, or even unashamedly pass
into the pocket of the founder of the trust.
The Ottoman courts by the early fifteenth century accepted such endow
ments; by the end of the sixteenth century they were an extraordinarily popular
form in much of Anatolia and Rumeli. And yet it was a practice so clearly con
demned by the authoritative scholars of classical Islamic law that it rarely if ever
was carried out anywhere in the Islamic world before them or in many parts
thereafter.
This legitimization, rationalized on the basis of customary practice, was a
prime example of positive law in action within the sharia, the Islamic system of
law ; in sharia endowment law it represented a revolution.2 This essay follows in
AUTHOR'S NOTE: I am grateful to the American Research Institute in Turkey whose
grants of funds enabled me to carry out the research necessary for this study. Thanks also
are due to the director and staff of the Suleymaniye Library in Istanbul for their unfailing
helpfulness and hospitality.
1 With one notable exception; see Omer Lutfi Barkan's discussion in
his 'Edirne
Askeri Kassam1'na Ait Tereke Defterleri (1546-1659)' in Belgeler , 3 (1966), 31-46. His
discussion is repeated in 0. L. Barkan and E. H. Ayverdi, Istanbul Vakzfiar Tahrir
Defteri: 953 (1546) Tarihli (Istanbul 1970), pp. xxx-xxxviii.
2 The criticism frequently leveled against traditional Islamic law, that it is characterized
by scholastic sclerosis, an inability to respond to change, is certainly inaccurate insofar as
the Ottoman period is concerned. For this traditional criticism, see Joseph Schacht,
Introduction to Islamic Law (London, 1964), p. 62 n. 1; Asas A. A. Fyzee, Outlines of
Muhammedan Law (3d ed.; London, 1964), pp. 36-37 ; N. J. Coulson, A History of
Islamic Law (Edinburgh, 1964), pp. 7, 82. Coulson reflects the typical 'modernist' view,
that Western modernization alone is responsible for opening the sharia to positive
interpreta tion and application. These authors may be contrasted with Ya'akov Meron (see
his 'The Development of Legal Thought in Hanafi Texts,' Studia Islamica , 30 [1969],
73-118) who deplores this traditional view (ibid., pp. 89-91) but finds change such as is
described in this article to be equally a symptom of legal decadence (ibid., p. 92)
because of the normative pluralism, even eclectism, evident in the scholarship of the time
(ibid., p. 111). This article indicates that the conservative Ottoman jurists of the sixteenth
century would have agreed with him.

0020-7438/79/0205--0309 $1.50

1979 Cambridge University Press

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290

Jon E. Mandaville

some detail the process by which the Ottomans carried out this legitimization.
In a society where health, education, and welfare were entirely dependent upon
gifts and endowment income, the cash waqf carried serious implications for
the development of the social structure of the Ottoman empire. This essay shows
that Ottomans themselves were \vell aware of these implications, and were
guided by them.
Finally, the acceptance of the cash \vaqf meant the opening of a legally
sanctioned and governmentally controlled money market for the small lender and
buyer. In turn, the effects of this new credit availability spread outward in ever
widening, more turbulent waves as they crossed the currents of social and politi
cal change embodied in the deepening crisis of the late sixteenth-century
Ottoman world. This rising turbulence, exemplified in the politicization of a
scholastic debate, is my major theme.
C AS H A W Q A F I N P R AC T I C E I N T H E O TT O M A N E M P IR E

The use of cash awqaf in the Ottoman Empire seems to have appeared in the
fifteenth century.3 None of the twenty-seven fourteenth-century awqaf listed for
Edirne by Gokbilgin were founded with cash.4 There may yet be discovered
examples in Anatolia, which date from this period ; on the whole, it seems un
likely.
The earliest example I have been able to find was located in Edirne and dates
from the first half of the fifteenth century. A certain Yagc1 Haci Muslihuddin
dedicated a waqf of some shops in Agai;pazan and 10,000 aki;e cash in I 423 ;
income from the waqf was to pay each of three individuals I aki;e a day for
a daily reading of the Qur'an in the Kilise Mosque.s According to the terms of
the waqf, income was to be obtained by renting the shops and lending the cash
for interest ( istirbal;). The income from the lent cash was expected to be 1,000
aki;e annually, that is, 10 percent annual interest was to be charged.
In 1442 a larger waqf was established in Edirne by Balaban Paa, an Ottoman
district officer, to build a mosque and soup kitchen in Edirne and a school in
Gallipoli.6 Four shops, a bathhouse, and 30,000 aki;e cash were dedicated to pay
for the construction, maintenance, and staffing of these buildings, including
teachers' salaries and student fellowships. Again, the cash was to be lent at I O
percent annual interest.
One other example of cash waqf dates from the reign of Murad II ( I
421- 145I ). It was established to build and maintain a zaviye (sufi lodge) and
mosque
' The cash waqf seems to have been an indigenous product of the flexible Ottoman
frontier judiciary. Certainly it was not practiced in the Mamluk empire, nor did it seem
to be in Byzantine territories. For Byzantium, see P. W. Duff, 'The Charitable
Foundations of Byzantium,' Cambridge Legal Essays (London, 1926), p. 94. I am also
indebted to N. Oikonomides of the Universite de Montreal for his advice in this matter.
M. T. Gokbilgin, XV.-X VI aszrlarda Edirne ve Paa Livasz (Istanbul, 1952),
passim.
Ibid., pp. 223-224 no. 45
' Ibid., pp. 272-273 no. 76.

The Cash Waqf Controversy in the Ottoman Empire

291

with income from real estate and 20,000 aks:e cash ; 1 interest on the cash was not
stated. All told, less than 1 percent of the awqaf established during this period
in and around Edirne were cash awqaf.
The ratio of cash to real estate awqaf established in Edirne during the reign of
Mehmed II (1451-1481) seems not to have increased over that of Murad II,
although published data are insufficient to establish this firmly. s
Istanbul is quite a different matter when it comes to published data. Detailed
information in the form of a register book of awqaf established in Istanbul
following its conquest has been published by Barkan and Ayverdi. 9 The
register dates from l546. It must be used with caution for the early period,1 o but
the figures are nevertheless impressive. Of the sixty awqaf clearly dated from

Dated Istanbul Awqaf by Year of Establishment

40
----- CASH
-NON-CASH

30

"er0::
0::

""....
0
.
D

'

20

I
"I I

"

I
)

"

6
:::l

I
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r-/1

zI\

1,

,I

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" I
1 v
I 1
I \1 \ I If

IO

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/'/ J I

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I
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\/

930

940

950

Hicri year
SOURCE : Barkan and Ayverdi, Istanbul Vak1flan
1. Ebil es-Suud appointed Istanbul Kad1s1 early 940 h.
2. Ebil es-Suud transferred to Rumeli Kadiaskerligi 944 h.
3. <;ivizade appointed to eyhillislamlik 945 h.
4. <;ivizade dismissed from eyhillislamlik, transferred to Rumeli Kadiaskerligi 949 h.
Ibid., pp. 290-291 no. II8.
Gokbilgin did not publish the full texts of all the awqaf noted ; the kind of property
used to establish twenty-three of the ninety-seven awqaf given by him for this period is
not indicated.
Barkan and Ayverdi, Istanbul Vakzfiarz Tahrir Defteri: 953 (I546 ) Tarihli, pp. xxx xxxvm.
1 0 In addition to problems of confiscation, embezzlement, and other forms of attrition
liable to have taken place between 1456 and 1546, 573 of the 2,517 awqaf (ca. 23 percent)
listed in the register lack dates (ibid., p. xxx). Many if not most of these were from the
earlier period.
7

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292 Jon E. Mandaville

Mehmed Fatih's reign, ten of them, or 16 percent, were established at least
in part with cash. The earliest registered cash waqf of Istanbul dates from
1464;11 the rest are scattered fairly evenly through the following years.
Istanbul, a far larger city than Edirne, having played the role of a major
commercial capital of the eastern Mediterranean for some centuries, saw a good
deal more cash flow through its gates than Edirne; this may be enough to
explain the higher percentage of cash to land awqaf there. Surer explanation will
come more readily when the land registry books are published for other cities of
the Empire.12
During the reign of Bayezid II (1481-1512) the number of cash awqaf
established per year in Istanbul increased slightly until 1500,13 at which point
the trend approximately doubled, remaining roughly constant through the
abdication of that ruler and the early years of Selim I (1512-1520).14 In 1505,
however, for the first time more cash than land awqaf were established ; year by
year thereafter, this occurred with increasing frequency until, beginning in
1533, the cash awqaf became the rule rather than the exception.
Other figures seem to indicate that this trend was not limited to Istanbul. A
preliminary survey of a waqf register in Ankara dated 1531 shows half (48/98) of
the registered awqaf there were based entirely or in part on cash.15 Barkan cites
preliminary figures for Bursa indicating 333,734 aki;:e income from cash awqaf
there in 1561 compared with 547,734 aki;:e income from real estate awqaf ;16 he
does not give the number of awqaf of each, but inasmuch as the average cash
waqf income is small compared to that established with land, I would judge the
numbers to be nearly equal.
So much for the actual incidence of cash awqaf in the Ottoman Empire up
through the mid-sixteenth century. Though only partial figures are available
at this time, the general outline is clear enough. Begun at least as early as the
first decades of the fifteenth century, well established in legal practice by the
middle of that century, the cash waqf began challenging the traditional land
waqf early in the sixteenth century and by about 1560 had become the dominant
mode of endowment.
It became the dominant mode contrary to all previously established legal
thought and practice in the Islamic world, however. As long as the practice
was limited to a relatively insignificant percentage of total awqaf, the challenge
could be overlooked, especially if the cash waqf occurred out on the frontiers,
on the European side of the empire. By 1540, it could be overlooked no longer ;
the debate began.
11

Ibid., p. 144 no. 811.

Barkan is preparing for publication the province of Htidavendigiir, with its old
capital of Bursa (see ibid., p. xxxiv n. 48).
13 For this period and after, Gokbilgin's Edirne is less useful for this study.
14 For the following discussion refer to graph on p. 291.
u MS Cevdet O.u6/5, Belediye Library, Istanbul.
6 Barkan, 'Edirne Askeri,' p. 34.
12

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The Cash Waqf Controversy in the Ottoman Empire

293

T H E S I X T E E N T H - C E N T U R Y C ASH W A Q F D E B A T E

Legal Issues and Pre-Fifteenth-Century Practice

In order to appreciate the legal issues involved in the controversy over the
cash waqf which broke out in the mid-sixteenth century, a brief review of legal
opinion held in the Islamic world previous to the Ottoman period is necessary.
The waqf is a permanent endowment set u p with property the income from
which is to be used for charitable pu rposes. The property is a gift to God,
absolute and irrevocable, its purpose the benefit of mankind. Ideally then, a
waqf should be established with property which does not diminish with use.
This fundamental element of perpetuity in endowment property presented the
first barrier to the cash waqf amongst the earliest scholars of Islamic law, in fact
a barrier to any waqf endowed with movable property, property which of its
nature seemed impermanent. It sufficed to block any consideration of cash
waqf through the centuries by jurists of the Shafi'i and I:Ianbati trends of legal
thought.
The remaining two schools, however, the J:Ianafis and the Malikis, made less
rigid by their greater willingness to accept customary practise and communal
benefit as a source for interpretation, were unwilling to dismiss the possibility of
cash waqf out of hand.
On the face of it, for example, an endowment established with money might
be of real benefit to the community while maintaining its original funds, if it
were to grant interest-free loans to the poor and needy. At least, the coin count
of the original endowment might remain the same. This is the primary argument
of the Maliki school, laid out in the early ninth century by Sal:inun in his
classic al-Mudawwana and supported and developed in later centu ries by the
Maliki authorities.17
But even the more lenient of the I:Ianafi professors and practitioners were not
attracted by this line of argument ; as Imam al-Din Amir said in the mid
fourteenth centu ry, there is after all a difference between land and money in
their essential natures. Land is land and remains forever ; but 'the use for which
dirhems and dinars are created is valuation. '1s And with the inflation and defla
tion of prices, revaluation and devaluation of coin, what assurance does one have
that the value of the money would remain the same throughout the transaction?
What certainty could there be in a free market economy that I o dinars lent
would carry the same 10 dinars value five years hence upon repayment? Or even
that 10,000 dinars endowed, lent or not, would do so?
One means of covering capital loss from inflation or devaluation is lending the
capital out at interest. But strict prohibition of usury in Islamic law closed that
door to the potential cash waqf donor.19 Rather, those J:Ianafi jurists who
17 A. al-Ma'mun Suhrawardy, 'The Waqf of Moveables,' Journal of the Asiatic Society
of Bengal, 7 n.s. (1911), 355-358.
1s Ibid., p. 342.
1 9 The most recent thorough statement on the question of usury, or interest, m

294 Jon E. Mandaville

supported the practice of cash awqaf before the new Ottoman interpretation did
so on different grounds - taqlid and muefaraba.
Taqlid is reliance upon the opinion of one or more of the established founders
of the school of legal opinion in which one practices. In the case of cash awqaf
this reliance was upon a reported statement by the Imam Zufar (d. 775), student
and companion of Abii I:lanifa, to the effect that cash waqf is permissible if the
endowment money is invested through muc;laraba and the proceeds used for the
benefit of the community.
The mudaraba was an obvious alternative to usury as a means of capital gain.
It is a form of business investment through partnership, known in medieval
Europe as commenda, or sleeping partnership, used extensively since early
medieval times in Islamic society. By means of this mechanism a person with
capital invests in a business venture. He is the 'sleeping partner,' and is not
otherwise active in the venture. From the proceeds of this business he takes his
share of profit according to the ratio fixed at the time of the formation of the
partnership.20 The possibilities for a high return on the capital investment were
greatly enhanced by the legal acceptability of the working partner to trade on
credit according to I:Ianafi interpretation, enabling long-term, long-distance
ventures to be undertaken.21
Yet even the mu<;laraba mechanism, for all of its apparent advantages, still
suffered a serious debility vis-a-vis the cash waqf. For, in the muc;laraba form of
partnership, any loss sustained in the venture must be borne entirely by the
'sleeping partner.'22 Given that condition, just how certain could any judge be of
the perpetuity of the capital of a proposed cash waqf?
Either Zufar did not appreciate this difficulty, or he chose to ignore it. Neither,
apparently, did he appreciate the distinction between property value and coin as
pricing value. Several of those jurists quoting Zufar perhaps realized the weak
ness; one detects a certain uneasiness in their citations. Partly, certainly, this
uneasiness reflects dissatisfaction with the failure to clearly resolve the issue of
perpetuity. Partly it may stem from a more general dissatisfaction with the
device of taqlid simple. Partly also it reflects the relatively low status among the
Founders of I:Ianafi opinion given Zufar by most of the later I:Ianafi schoolmen.
Whatever the reasons, few l:lanaf i scholars were willing to accept the validity
Islamic law is that of Fazlur Rahman, 'Riha and Interest,' Islamic Studies, 3 (1964), 1-43.
See also Mir Siadet Ali Khan, 'The Mohammedan Laws against Usury and How They
Are Evaded,' Journal of Comparative and International Law, 11 (1929), 233-244. For a
review of Ottoman treatment of interest, see Nes'et <;agatay, 'Riha and Interest Concept
and Banking in the Ottoman Empire,' Studia lslamica, 32 (1970), 54-?8, as well as his
'Osmanli lmparatorlugunda Riba-Faiz Konuu,' Vakiflar Dergisi, 9 (1971), 39-66. See
also Hali! Inalcik, 'Capital Formation in the Ottoman Empire,' Journal of Economic
History, 29 (1969), 97-140.
20 Schacht, Introduction, pp. 156-157. For the mm;lliraba applied in nineteenth-century
Palestine, see Ya'akov Firestone, 'Production and Trade in an Islamic Context,' Inter
national Journal of Middle East Studies, 6 (1975), 191-201.
21 Abraham L. Udovitch, 'Credit as a Means of Investment in Medieval Islamic
Trade,' Journal of the American Oriental Society, 87 (1967), 261 n. 9; 262.
22 Schacht, Introduction, p. 156.

The Cash Waqf Controversy in the Ottoman Empire

295

of cash awqaf, whether on Maliki grounds or by Zufar's precedent. And, as a

consequence, persons with capital and wishing to establish a waqf before the
new Ottoman interpretation used the capital to purchase property deemed
acceptable for endowment purposes, property acknowledged by established legal
opinion to be endowed by its nature with the essential characteristic of per
petuity.
They were not limited thereby to the purchase of real estate only. The two
major scholars of I:Ianafi: law after Abu I:Ianifa, Mu}:iammad al-Shaybani (d.
805) and Abu Yusuf (d. 798), both accepted certain movable items as property
fit for trusts. Among these items were shovels, saws, pots and pans, books, trees,
and funeral equipment. What is interesting, however, is not so much the items
themselves but the justification offered them. They were deemed admissible by
these jurists when it was a matter of ta'iimul, in other words, when it had be
come the generally accepted practice.23 Neither Mu}:iammad (as al-Shaybani is
commonly known in I:Ianaf i legal texts) nor Abu Yusuf accepted the legality of
the cash waqf ; for them coin was a different category entirely. Yet this principle
of ta'iimul, broadened and reinforced by istisiin, 'the welfare of the people,'
would be precisely that upon which Ottoman supporters of the cash waqf would
build their case for its validity in the late fifteenth century.
T H E C A SH WA Q F DEBA TE I N SI X TE E N TH -C E N T U R Y OTTO M A N J U D I C
I A L C IR C L ES

For all its reversal of previous judicial opinion, the practice of cash waqf in the
Ottoman territories grew steadily, as we have seen, throughout the fifteenth
century. It did so apparently without controversy. Scholarly writings of that
period circumspectly cite the classic I:Ianafi texts.
How, then, was controversy avoided? Simply by neglecting to mention that
Mu}:iammad and Abu Yusuf explicitly denied the validity of the cash waqf. The
masterwork of Mevlana Mehmed [ibn] Feramerz, known as Mulla Husrev, who
served as chief justice (eyhiilislam) of the Empire from 1460 to 1480, is an
outstanding example of this judicious silence.
His book, Durar al-lf ukkiim Ji Shar Ghurar al-Akiim, a commentary
on his own earlier text Ghurar al-Akiim, was begun in 1473 and completed in
l478; it remained for centuries a standard textbook for Ottoman I:Ianafi legal
practice. Mulla Husrev mentions in it that Imam Mu}:iammad accepted certain
movables on the basis of 'generally recognised practice' ( ta'iiruf ) and that
Imam Zufar had been quoted by al-An::;ari as permitting cash waqf.24 Mulla
Husrev, beyond the simple statement on Imam Mu}:iammad's position on the
general category 'waqf of movables' and Imam Zufar's reported position on cash
23 Qac;likhan (d. 1195), Fatiiwii (in Suhrawardy, 'Waqf of Moveables,' pp. 334-335),
quoting al-Sarakhsi (d. 1097).
24 MS (personal copy) ff.
151B-152A. For a biography of Mulla Husrev see Franz
Babinger, 'Husrev, Husrav, Molla,' Islam Ansiklopedisi, 5 (1950), 605-606.

296 Jon E. Mandaville

awqaf, has nothing more to say on the matter. The reader in turn is left with the
impression that Mulla Husrev considers the cash waqf to be simply another
category of moveables and therefore acceptable to Mu}:iammad, and that the
Zufar story is an acceptable second authority for the practice.
Mulla Husrev's famous student Ahizad Yusuf ibn Ciineyd followed the
same argument, though in an academically more acceptable fashion replete with
footnotes. Ahizade spent his whole life teaching, crowning that career with an
appointment in 1486 to a lecturing chair at the most respected school in the
realm, the University of Sultan Mehmed the Conqueror in Istanbul. In that
same year he began his opus major, the Dhakhirat al-' Uqba, a commentary on
the l:lanafi legal text of $adr al-Shari'a.2s
The Dhakhira, unlike al-Ghurar, presents many of the standard classical
positions concerning the cash waqf, including a few opposed to the practice.
The different positions taken by Abu Yusuf and Mu}:iammad regarding the
waqf of movables are stated. The fact that al-Shafi'i, Malik, and Ahmad ibn
l:lanbal all opposed the cash waqf is noted.
Once again, however, what is not noted is the disapproval of Abu Yusuf and
Mu}:iammad of the cash waqf. The argument is developed thus: Mu}:iammad
accepted any movable waqf that had gained general recognition of the people
on the basis of isti}:isan. It was for the good of the people. True, al-Shafi'i,
Malik, and Ibn I:Ianbal refused cash waqf. But we, I:Ianafis, need not concern
ourselves with that, since they are of different schools. The I:Ianafi Imam
Zufar explicitly accepted cash awqaf.26 As with al-Ghurar, the reader is left
with the impression that cash is just another movable and so is to be accepted on
the basis of common recognition, following Mu}:iammad.
Thus by the end of the fifteenth century, Ottoman legal texts were cautiously
but unmistakably reflecting Ottoman legal practice. Ottoman text writers were
frequently practicing judges as well. Mulla Husrev certainly acted as he preached
; in 1462, two years after his appointment as eyhiilislam, and then again in
1467 and 1470 while still serving in that post, he signed cash waqf
documents in Istanbul.27
The lack of controversy in the judicial writings on cash waqf of this period
must have stemmed at least in part from this high official sponsorship. Mulla
Husrev was not the only eyhiilislam to sign cash awqaf while in office ;
Efdalzade (served 1496-1503) was another.2s Among the other signatories were
individuals who would later serve as military justice (kadi asker) and judge
of Istanbul:
" The $adr al-Shari'ah, known popularly after its early fifteenth-century author
$adr al-Shari'ah al-Thiini 'Ubaydulliih al-Mal;ibubi, is a commentary in turn on alWiqaya of Burl;iiin al-Shari'ah al-Mal;ibubi (see Katip <;elebi, Keff al-Zunun, 2
(Istanbul, 1943), bottom of col. 2021). For a biography of Ahizade, see Takopriizade
Ahmed, :jekaik iin Nu'maniye, trans. Mehmet Mecdi (Istanbul, 1269/1852-53), pp.
292-293.
26 Dhakhirat al-'Uqba Ji sharfl $adr al-Shari'ah al-'Uzma, MS (personal copy) f.
187A-B.
27 Barkan and Ayverdi, Istanbul Vakifiar, p. loo no. 559; 144 no. 811; 187 no. 1061.
28 Ibid., pp. 199 no. 1137; 411 no. 2403.

The Cash Waqf Controversy in the Ottoman Empire

297

Mustafa b. Mehmed, Mustafa b. Evhad, Miieyyedzade, Yarhisarizade, Mehmed

b. Ali Fenari, to mentioned but a few. One later eyhiilislam in fact, Sa'di,
dedicated one himself which was signed by his colleague (then in office) Ebii
es-Suud.29 The practice of cash waqf by the 153os was there to stay,
unquestioned it seemed and unopposed.
Then, sometime between 1545 and 1547, the military justice of Rumeli,
<;ivizade, issued an opinion which completely opposed the practice of cash
waqf.30 Suddenly the conflict between traditional Islamic judicial theory and
practice and that of the Ottoman establishment broke out in the open. It had
done so, it seems, long after there was any chance for a reversal of the practice.
Yet however unrealistic the opposition, the debate continued on through that
century and into the next, scholarly surrejoinder following rejoinder. Gradually
the cash waqf became a major issue in the larger ongoing struggle between
Ottoman strict, as opposed to loose, constructionists of political, legal, and
religious policy - between the liberals and the conservatives.
I have found no copy of <;ivizade's original fetva (legal opinion), but that of
Ebii es-Suud, $eyhiilislam at the time, which was issued quickly to override
<;ivizade, exists at least in part:
Although the citations of books seems to be against the permissibility of aki;e and
filuri awqaf, it is also well known which sources of these books are true and sound. It is
recognised absolutely that throughout the lands of the provinces of Rum cash waqf is
popular and generally practiced, that most of the awqaf of the mosques and welfare
establishments are based on cash, that judges past and present relying on the afore
mentioned citations have ruled in favor of its permissibility, that up till now military
judges and provincial governors have been ruling in favor of its validity and irrevoca
bility, and no one has spoken out against this. The practice is perfectly sound ( ahil;z )
and irrevocable ( lazim).31

Thus Ebii es-Suud is quoted by <;ivizade in his rejoinder. But the form is not
that of a fetva. A closer approximation might be offered us in the fetva on the
subject found in Ebii es-Suud's Ma'ruzat. It is, significantly, the first entry in
the chapter on waqf, and is undated :
Explain according to what mezheb is the cash waqf judged to be legal and
irrevocable. Must the judgment be, first, that it is valid ( sihhatina ) and second, that it is
irrevocable ( lazim)?
ANSWER : Judges are now authorized to rule thus.
QUESTION :

Ebii es-Suud follows this brief answer with quotes from Kadihan:
Ibid., p. 200 no. 1139.
It would appear that this was not the issue that led to the dismissal of Civizade from
the office of eyhiilislam in 1541, as has been suggested elsewhere (Michael M. Pixley,
'The Development and Role of the $eyhulislam in Early Ottoman History,' Journal of the
American Oriental Society, 96 [1976], 94). $eyh Bali Efendi, contemporary to the events
and very much involved in them, states that the cash waqf controversy was begun by
'the Military Justice of Rumeli,' who was opposed by 'the Mufti' (i.e., $eyhiilislam).
See below p. 303. No source contradicts this.
'1 MS Asir Efendi 459, f. 56B, Suleymaniye Library, Istanbul.
29

30

298 Jon E. Mandaville

It is not irrevocable save in two ways: (1) by decision of the judge, using his own
judgment, as for example if the founder of a waqf hands over whatever property it has
been endowed with to the waqf supervisor, then later wants it back, arguing that
because of its defect it was revocable. The dispute is then taken before the judge and he
rules that it is irrevocable ; and (2) according to later scholarship it is permitted to write
at the end of the waqf deed, 'A Muslim judge has ruled that this waqf is valid and
irrevocable,' thus making the waqf valid and irrevocable.32
Whatever the fetva or the high office behind it, the matter would not be
allowed to end there. The fetva of even the eyhiilislam was not binding on the
judges of the Empire ; only a decree from the sultan could have that effect.33
<;ivizade himself was 76 or 77 at the time of the cash waqf confrontation,
fourteen years the senior of Ebii es-Suud. He had served as eyhiilislam for
two vears ; he commanded a good deal of respect for his learning, and even
more for his piety and sense of duty.34 He had perfectly good legal grounds for
his d isagreement with the practise of cash waqf, and a brief opinion from Ebii
es-Suud was not likely to change his mind.
EbLi es-Suud , aware of this, shortly after issuing the fetva or perhaps con
currently with it composed a twenty-eight page justification of the cash waqf. He
wrote it in Arabic; it was intended for scholars - or to impress those who
pretended to scholarship. What emerges is an essay that establishes the fact that
Ebii es-Suud knows his sources in I:Ianafi fiqh and how to use them to support
his position. More importantly, what appears is an appeal to continued popular
usage (ta'amul and ta'aruf ), to the welfare of the people (istiJ:isan), and to both
throughout with a tone of 'Let's be practical,' an appeal to common sense. It
probably was a very persuasive argument in government circles.
E B li ES Z

su u n 's

D E F E N SE O F T H E C AS H W A Q F

Ebii es-Suud opens his case forthrightly stating that Abu I:Ianifa and al Shafi'i
stand out against waqf of movables while Abu I:Ianifa's students support it :
MuJ:iammad, on the basis of established usage, and Yusuf on the basis of
tradition. Later I:Ianafi authorities support MuJ:iammad's argument, he says,
citing several.JS He notes that Zufar has been in the past cited as support for the
cash waqf, but that Zufar is not, in fact, a very strong authority. It makes
better sense, he says, to mention al-Zuhri, who is quoted by al-Bukhari in his
32 Ebil es-Suud uses the latter suggestion for making a waqf valid and irrevocable in the
formula example he gives for a cash zvaqfiye in his al-$akk al-'iiri 'an al-rib zva'l-shakk , a
legal formulary handbook written in 1563 (MS personal copy, f. 229A). The M a'ruzat is
published in M illi Tetebbiiler Mecmuasz I (2) (1331 /1912-13), pp. 337-348. Although
several fetvas in the various copies of Ebil es-Suud's fetva collection touch upon the cash
waqf, none deals with the question of its general validity.
33 Uriel Heyd, Studies in Old Ottoman Criminal Laze, ed. V. L. Menage (Oxford,
1973), p. 187 n. 1.
34 Taktipruzade Ahmed, :J ekaik , pp. 446-448; M. Cavid Baysun, 'Civi-zade,' Islam
Ansiklopedisi, 3 (1963), 438-439.
35 MS untitled risale, Dugumlu Baba 449/12, Suleymaniye Library, Istanbul, f. I05B.

The Cash Waqf Controversy in the Ottoman Empire

299

$ai as supporting cash waqf.36 In any case, Mul;ammad's ta'amul in support

of the waqf of movables is the best principle to work with in this matter ; Ebii es
Suud attempts to make this clear over the next several pages of citations and
elaborations.
He then shows how many things have been added to the 'movables' category,
and matter-of-factly states that cash is simply another subcategory of moveables;
it is not supposed to be treated separately. Ta'amul applies to cash as welJ.37
For this statement he has no classical citations.
But what about the troublesome question of perpetuity of 'ayn? Ebii es-Suud
finds it to be not at all troublesome. It is 'generally accepted,' he says, that when
a like sum of money is paid back it is the same as the originaJ.3s Some do say
that even when the money is paid back, the value fluctuates. However, he
continues, 'I say it does not matter. It evens out in time. Today some say 60
dirhems to the dinar, some say 59. It varies from place to place, and even in the
sample place from time to time. No one profits over another in the long run.'39
There is, then, no serious difference between this and the exchange of exhausted
waqf land for good land, which is generally permitted by I:Ianafis; only the
turnover is faster in the case of cash.4o
On this question of perpetuity, he concedes, there is still disagreement with
al-Shafi'i. 'But his analogy is not our [I:Ianafi] analogy ; his plea ( ta' lll) is not
our plea.'41 In any case, he says, the disagreement is only over this question
of perpetuity ; otherwise al-Shafi'i would permit cash waqf, on the basis of
istil;san. Ebii es-Suud devotes the remaining dozen pages - nearly half of his
treatise to the establishment of the irrevocability of the cash waqf.42 It is a long and
detailed discussion, rather more carefully argued in the scholastic manner than
the earlier portions. Clearly, irrevocability was felt to be a serious issue in the
dispute. Why it was so is made clear in a fetva written by Pir Mehmed Birgevi,
who was emerging at this time as a popular scholar of Muslim ethics and leader
of the conservative wing of Ottoman scholastics.
QUESTION : Zayd made a waqf with a sum of money and assigned expenditures against
the interest earned by that sum. He handed it over to the superintendent, who in turn
spent it. Then Zayd brought the superintendent before the court, saying that a cash
waqf is null and void (biifil ) and the conditions of such a waqf are likewise, and
asked for the return of the original sum and interest expended by the
superintendent. The superintendent, on the other hand, said that cash waqf is
permitted according to the statement of Imam Zufar, and that he would not hand
back the expended interest. Is the decision to leave the cash with the superintendent
correct?
ANSWER : No. The establishment of a cash waqf by relying upon Zufar may be per
mitted (jti'iz), but it is not absolute and binding ( ltizim) in view of the weakness of
Zufar when compared with Abu I:Ianifa, MuJ:iammad, and Abu Yusuf.43

Ibid., ff. r o6A-B.

" Ibid., ff. r o6B-r o8A.
Ibid., f. r oSB. He cites the 'Chapter on al-mudayyaniit' in Dhakhirat al-' Uqba of
Ahizade for this, a chapter that does not exist in my copy.
39 Ibid ., f. II r A.
4 0 Ibid., f. 109A.
41 Ibid., f. r r oB.
42 Ibid., ff. r 14A-119B (summarized).
43 MS Dugumlu Baba 449, Suleymaniye Library, Istanbul, ff. 98B-100A.
3

38

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Jon E. Mandaville

What was involved, then, was no less than the possible annulment of thousands
of awqaf established throughout the Empire in previous generations, the dis
ruption of perhaps millions of aki;e of capital investment.
To summarize Ebii es-Suud's argument:
I. Yusuf and especially Mul,i.ammad, founders of the I:Ianafi School, support
the waqf of movables if and where it has been established as common usage.
2. Cash is a kind of movable, and thus along with other movables may be
justified on the basis of already established common usage. It does not by its
nature violate the principle of perpetuity of the original endowment.
3. Because it is as sound as any other waqf, it too should be treated as irrevo
cable.
Inother words, Ebii es-Suud follows the same argument as Mulla Husrev and
Ahizade before him. But where they were only willing to imply the critical
classification of cash as simply another category of movable, Ebii es-Suud has
no compunctions against saying so outright. While they use silence to avoid the
opposition of Mul,i.ammad and Abu Yusuf, Ebii es-Suud cheerfully and openly
concedes the opposition, then dismisses it.

v I V I Z A D E 'S R EJ O I N D ER TO E B U ES-SU U D 'S ESSAY A N D F ETVA

<;ivizade's rejoinder to Ebii es-Suud came back quickly. The incipit is m

Arabic:
Praise be to God, who put us among those scholars holding fast with the strongest of
the statements of the founding legists, who dedicated us to the path followed by the
earliest of the forefathers and to the settlement of doubt which obscures transmission
from the past, who blessed us with the power to discriminate between the strong and
the weak among the jurists. May God preserve us from the discord and dissension
which occurs in our time because of extremists (muta' #bin); may He bring us together
with the founding legists as a group calling truth the truth and falsehood, false
hood
44

With the amii ba'd, he shifts to Turkish: 'It has seemed appropriate to write
these few lines explaining the basis of the following citations, in order to halt the
provocation (dagdaga) which has appeared amongst the populace.'45
With no further introduction, he moves directly to the citations mentioned
in Ebii es-Suud's essay. But while Ebii es-Suud simply names them in passing,
frequently only by author, <;ivizade methodically ad seriatum traces down each
reference, cites the passage, then gives a summary Turkish translation of it with
a comment of his own as to its relevance and validity.
After running through some twenty citations thus, he quotes the summary
fetva of Ebii es-Suud on the subject (given above) and groups the arguments in
favor of cash waqf into three types: (1) ta'amul, (2) reliance on Zufar, and (3)
reliance on those who relied on Zufar. None of these, he says, is convincing.
The weakness of Zufar is manifest; under no circumstances, certainly, could it
44

MS Asir Efendi 459, Suleymaniye Library, Istanbul, f. 55B.

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., Ibid.

The Cash Waqf Controversy in th1: Ottoman Empire

301

support irrevocability.46 As for ta'amul, treating cash as just another category of

movables, <;ivizade says simply, 'there is no guide or clarification for its permis
sibility.'47
'There is no guide.' Here, precisely, was the issue. For those Ottoman
jurists with conservative leanings, those of the strict constructionist school
of legal interpretation like <;ivizade, some precedent ruling well established in
the legal tradition by a broadly respected jurist was necessary. What Ebii es
Suud had done in declaring cash to be just another movable had no such clear
precedent ; there was none. Here he departed from the mainstream of I:Ianafi
jurisprudence, forging a new course. It was actions such as this which made
Ebii es-Suud the dominant figure in Ottoman judicial history as well as a key
figure in the political history of the sixteenth-century Ottoman world.
T H E BR O A D E N I N G O F T H E C O N T R O V E R S Y ; B A L I E FE N D I 'S L ETTE R
S

<;ivizade's argument, though very much to the point, was dry and legalistic, no
match for Ebii es-Suud's rhetoric in the public forum. Others, moreover, were
prepared to broaden the debate in support of Ebii es-Suud's position.
One of the more outspoken of them was $eyh Bali Efendi, or Bali Baba as he
was known, a Sufi leader of the Halveti Order. Bali was born in Ustruumaca,
educated in Istanbul, then settled in Sofya, where he built a Sufi lodge and
reputation for scholarship and sanctity. He died there is 1552.48
Bali Efendi in his defense of the cash waqf went directly to the top, writing a
letter to Sultan Suleyman himself. As the opinion of an educated Ottoman
working for the most part outside of the Ottoman governmental establishment,
the letter presents quite a different and illuminating viewpoint.
The military justice of Rumeli [<;ivizadeJ sent out an order to all parts of the Empire
saying that what has long been done is not permissible, while at the same time the
Mufti [Ebti es-Suud] issued a fetva saying that it is so. As a consequence the affairs
of scholars and honest men were thrown into disarray. They did not know which
direction to turn. It led to common people saying [about the cash waqf], 'This is a
void and sinful act.'
God forbid that it should be so! Since the conquest of Rumeli, for nearly three
hu ndred years, it has been practiced, by order of the padi ahs and the general
agree46 Here, despite Ehli es-Suud's disclaimer of reliance on Zufar, Civizade has a point in
repeating the criticism. In fact, many of the sources cited by Ehli es-Suud as supporting
cash waqf on the basis of ta'amul do so also, or even only, on the basis of Zufar (as, for
example, the al-fatawa al-bazaziya). Civizade, although he found numerous errors of
citation in Ehli es-Suud's essay, missed one clear-cut case; Ehli es-Suud cites al-hidaya
(Dugumlu Baba 449/12, f. 107A) as supporting cash waqf through reliance on Mul:tammad
and ta'amul, whereas al-hidaya explicitly disallows cash awqaf (see Suhrawardy, 'Waqf of
Moveables,' p. 340).
41 MS Asir Efendi 459, f. 56 B.
4 '
For Bali Efendi, see 0. Keskioglu, 'Bulgaristan'da Baz1 Tlirk Abideleri,'
Vakzfiar Dergisi, 8 (1969), 315-316 ; 0. Keskioglu, 'Bulgaristan'da Turk Vak1flan ve
Bali Efendinin Vak1f Paralar hakkmda bir mektubu,' Vakzfiar Dergisi, 9 (1971), 90-91 ;
Bursali Mehmet Tahir, Osmanli Muellifieri, Vol. I (Istanbul (1333/1914-15), p. 42.

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302

Jon E. Mandaville

ment of the scholars. It has in fact been written into some of the appointment papers of
the judges: 'In matters in which there is disagreement, work from the strongest
position. Do not use weak statements to support your actions except in the matter of
cash waqf ; do not abandon it.'
God forbid that an error has been ordered regarding this world or the Hereafter by
scholars of the Prophet's community for three hundred years. Such an order would not
stand for three days.
The truth is, we know from the correctness of the cash waqf the strength of its
argument. We know that it would be a great sin to prevent its practice. If appearances
seem contrary to our knowledge and reliance on that strength, then let them come forth
with a stronger case.
My padi ah, if the cash waqf is forbidden, two errors are certain. Either from the
beginnings of history till now all of the scholars must be wrong, or the person
forbidding [the cash waqf] must be wrong. If it is not forbidden, no wrong need be
attached to anyone.
I plead to my padiah ; let an order be given that will cut through the doubts.
This waqf supports the activities of Friday services. If it were lost Friday would
have no direction, the preacher and the prayer caller would be lost. Friday prayers
would be abandoned.
If a person wished to take 30,000 ak<;e of his wealth and by buying and selling with
it revitalize Friday prayers, what would the padi ah order?
Shall we act according to the report of Zufar, make the ak<;:e waqf, revitalize the
mosque? Or shall we act according to the Great Imam [Abu I:Ianifa] and forbid the
waqf, thereby closing the mosque and preventing prayer? This is precisely what
the empire is embroiled in ; there is a mosque today in just this predicament.
But let us correct what he who would forbid the cash waqf says, by way of the tradi
tional authorities:
There is the Ghayiit al-Bayiin : 'According to most scholars, it is not permitted to
make waqf of things like money which in their use are destroyed.' An lbn al-l:lamam:
'A man makes a will declaring a third of his wealth waqf ; should the wealth be money,
the will is null and void.'
Then there is the Waqi'at of al-Shahid [al-Tajnis] ; whatever the masters [mashayikh]
choose in legal problems is preferred and should be followed in practice. But there is he
who says regarding the praying of the sick, Zufar says let him pray in the most com
fortable manner, and in saying so abandons the reports of the Imams. Or when the
messenger of the sultan is exonerated from guilt, going against the reports of all
the Imams. Or paying the judge from the opposing parties of court cases to save the
government treasury, abandoning the Imams reports. Or supporting cash awqaf
because of great benefit to the religion of Islam.
These abandonments are according to the sharia. What was abandoned by the
masters is abandoned weakness and not practical in our time . . . all of what the
qac;li al-quc;iah lists against cash waqf has been legally abandoned by scholars and we
should follow those scholars.
It says in the Jami' al-M udamirat : The mufti should not give fetvas based on
abandoned reports. He also says: The scholars may act on the basis of a report from
one of our Companions out of concern for the welfare of the people of their time.
I think this statement speaks for itself. It is, in fact, the basis of all the religions from
Adam to Muhammad. The same thing is involved in al-niisikh and al-mansiikh I
teach from the sense of the sharia, not from analogy or individual reason. God's
legislation has no other purpose than to ease the way of His servants through the
exigencies of the times. Some rules of the sharia are overturned by changes through
time, out of necessity and to ease difficulties. A salary for leadership is permitted where

The Cash Waqf Controversy in the Ottoman Empire

303

salary otherwise is not permitted. One uses inadmissibility at times because it is better
for the people of that time, at other times one does the opposite.
There is a report from 'Abd al-RaJ:iman ibn Abi Layli; he was asked by scholars
how to rule on something in which there was difference of opinion and he said, 'Be
guided by whatever is more harmonious with how the people are living, what is kinder,
better for them.'
We were asked by two muftis about the cash waqf ; one had permitted it, one had
not. We followed admissibility, because it better suited the conditions of the people of our
time in their religious and worldly affairs, as well as the opinion of the majority of the
scholars of the time and their predecessors [italics mine].
There can be no doubt that the traditional citations for its inadmissibility have been
abandoned in our time through the practice of the people opposed to it, in the same
fashion as the Repealer revoked the abrogated because of the changes in religion
brought about by the changes in time.
The cash waqf was invalidated because of the requirements of the time; and in this
sensible and perfectly legal fashion its permissibility returns to the School of Abf1
I:Janifa. It returns to all four schools of legal opinion ; it returns to all the various rules
of religions. Whoever declares that the cash waqf is null and void or weak, he should be
stopped. . . . These are things the devil wants; he would lead astray the honest servants
of God with legal forms, he would split the community with conflict and disagreement.
And God preserve us from that.49

There we have the classic argument of the Ottoman liberal majority, rather
sedately put. You can't turn back the clock, he argues; one must consider today's
conditions.
What Bali Efendi could not write to the Sultan out of politeness he had no
hesitation in driving home 'To Those who Forbid the Cash Waqf ':
. . . Piety which leads to evil is evil itself. An act which destroys a charitable insti
tution is the act of a kizilba [heretic]. . . . It is to cut Islam off at its roots. . . . Those
persons who condemn the cash waqf are also those who claim that a gazi [Crusader]
who uses a cannon or rifle in combat cannot be called a martyr when he dies in
combat . . . . I know more about law ( kanun) than you do. What have I got to fear from
you, or from anyone else for that matter save God? I say that your actions go contrary
to the sharia, that they are innovations (bid'a), grievous error, and ignorance.so

In still another letter (no address) he declaims:

Faithful brothers! Certain hospice complexes ('imaretleri) in Rumeli, certain schools
and most of the mosques there are based on the cash waqf. It was decided that they all
be horse stables, and it won't be easy to rebuild them. The watercourses of the cities
and towns are all cash waqf based. It has been decided to dry them up. For long,
new mosques, hospices, schools, and other good works have been built; now few are
MS Esad Efendi 188, Suleymaniye Library, Istanbul, ff. 38B-43A.
Ibid., ff. 43A-44B. Note Bali Efendi's use of emotion-laden words here. K zzzlba ,
the word applied to the Shia Safavid enemy; bid'a, the standard criticism of Muslim
conservatives, here turned back against them ; <f,aliitiit (grievous error), the Arabic root of
which is used in the exordium of the Qur'an and repeated daily in prayers. Condemnation
of firearms as immoral is an attitude best known in connection with the Mamluks,
thanks to David Ayalon's Gunpowder and Firearms in the Mamluk Kingdom (London,
1956), esp. pp. 86 ff.
49

50

30+ Jon E. Mandaville

Started. In how many places have the people given up the everyday practice of
religion! . . .51
And again:
Ah, if <;ivizade Efendi had known how Islam was settled in Rumeli, then he would
have known whether or not cash waqfs were wrong! . . .52
As a representative of a Turkish settler family in Rumeli, Bali Efendi must
have been especially sensitive to this question of the role in the Islamization of
that area played by these endowed mosques and hospices, mosques and hospices
that he would have us believe - however true it may have been - were
endowed with cash.s3
B IR G E V I 'S R ESP O N SE : P U B L I C M O R A LI T Y A N D C O N SE R V A T I
VE REFORM

Bali Efendi may, I think, be taken as representative of the kind of support

initially given to Ebii es-Suud's position by the majority of educated Ottoman
society. The conservative minority in that society found their spokesman, after
yivizade, in Birgevi Efendi.
Mehmet Birgevi was born in Balikesir in 1523. He pursued his higher studies
in Istanbul, where he also joined the Bayramiye Sufi lodge. Upon finishing his
education he received a teaching appointment in the Anatolian town of Birgi.
Although he lectured elsewhere and frequently visited Istanbul he kept his
residence and position in Birgi until his death in 1573.s4
Birgevi's first rejoinder to Ebii es-Suud's position, Zealous Answers to the

Roots of Divisive Doubts (al-ajwibat al-l}asima li-'uruq al-shibhat al-qasima

) follows the scholastic form and argument of yivizade, but the analysis is
stronger and more detailed. As the outstanding Arabic grammarian of his day
and lifelong teacher of law, he is on firm ground here and he methodically,
word by word, phrase by phrase, picks Ebii es-Suud's argument to pieces.
Words and sentences out of context, classics misquoted, manipulations of
meaning, irrelevant citations, they are all brought out disdainfully for the
academic world to see. The treatise closes with a restatement of Ebii es-Suud's
opinion followed by a summary rebuttal:
'1 MS Esad Efendi 188, f. 47A; this letter is given in Keskioglu, 'Bulgaristan'da Turk
Vak1flar1 . . . ,' pp. 81-84.
52 Ibid., f. 52A.
53 Barkan has made a strong case for the important role of the sufi orders in the settle
ment of the newly conquered Rumeli lands; but the lodges of these orders seem seldom
to have been established with cash awqaf. Of the 225 selections chosen by Barkan from
the land registers of the empire to illustrate his article on this subject, only two from
Kutahya and two from Mentae refer to interest income (0. L. Barkan, 'Osmanli
lmparatorlugunda bir lskiin ve Kolonizasyon Metodu olarak Vak1flar ve Temlikler:
Istila devirlerinin
Kolonizator Turk Dervileri ve Zaviyeler,' Vakifiar Dergisi, 2 [1942], 316, 320-321). All
four are undated.
54 Kasim Kufrah, 'Birgivi,' Islam Ansiklopedisi, 2 (1961), 634-635.

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The Cash Waqf Controversy in the Ottoman Empire

305

The inadmissibility of the cash waqf is clearly stated in well-known and respected
books. The number of scholars who have agreed upon its inadmissibility is well
established ; if they were counted, there would be more than one hundred of them . . . .
Waqf is defined as property that has been frozen, cannot be transferred to another. It
is clearer than the sun that this definition does not include the cash waqf. Obviously,
property that has been put into a partnership ( mudaraba ), used as capital for commerce,
or loaned at interest using legal devices ( mu' timala) has been transferred to another.
Inthe established texts, the argument of Zufar, which is connected with its permissi
bility, is a weak one. Kadihan, for example, gives it in citation thus.
There are respectable works which were written to reconcile the differences of
opinion among the scholars [on certain problems]; the subject doesn't even come up
there. In general, the statement of Zufar in regard to its admissibility is weak. Zufar's
student, al-Anari, mentions it ; certain persons not entirely devoid of intelligence
relate it. But since, of the classical works, neither the Imams Abu I:Ianifa, Abu Yusuf,
Mul).ammad, nor other masters of the school permit it, clearly they did not accept this
aforementioned weak statement. This is why it is not permitted.
As for its irrevocability, there is not a single statement to this effect. Zufar says
nothing about it. There is nothing in the arguments (of Ebti es-Suud) supporting
anything of irrevocability, absolutely nothing. Those who rule and record in favor of
irrevocability of awqaf are acting on something about which they know nothing.55
Birgevi is clearly the better scholar. But where other academicians might have
brushed off their hands, smiled a small smile, and turned back to their class
rooms, Birgevi pressed on. While Ebu es-Suud combined politics and scholar
ship with consummate skill, Birgevi combined as skillfully the roles of public
moralist and scholar. Over the next twenty years he wrote five more treatises
dealing directly or indirectly with the cash waqf and - increasingly - with its
iniquities. The cash waqf controversy, begun as a straightforward scholastic
debate on legal interpretation, was gradually shifted under the influence of
writers like Bali and especially Birgevi into a debate on public and political
morality.
Birgevi underlines this further broadening of the controversy in his best-known
treatise on the topic, The Sharp Sword for the Inadmissibility of the M ovable and

Cash Waqfs ( al-sayf al-siirim f i 'adam jawiiz waqf al-manqul wa' l-dariihim).56
Up to this point, no one had raised the issue of usury directly. Now in his
summary to Sharp Sword Birgevi brings it up as added artillery, and the smoke
rolls:
Thus has the invalidity of the cash waqf been exposed. In it there are the sources of
many evils.
One is the nonpayment of the ordained zakat.
A second is the interruption of the regular course of inheritance, an adjudging and
execution of testaments involving cash waqf despite suspicions as to its validity, thus
withholding truth from the truthful, an ugly oppression.
A third,.the seizing of the substance of the waqf by its administrators ; they carouse,
and when they are asked to surrender the waqf the judge prevents this. Or when
someone dies and the inheritance is damaged. Verily, there are among them children
MS Esad Efendi 615, Suleymaniye Library, Istanbul, f. 104A-B.
Published untitled together with several other treatises of Birgevi in a lithograph
edition in Istanbul (n.d.), pp. 164-195. Al-sayf al-siirim was written in 1572, a year before
his death.
55
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306 Jon E. Mandaville

and madmen. As He has said, 'Those who eat the property of orphans, oppressing, will
eat and find fire in their stomachs; they will pray burning.'
A fourth, the man who makes a cash waqf will become poor, despite what he thinks.
Moreover, he believes that he no longer is obliged to celebrate the Day of Sacrifice, or
the Breaking of the Fast, or charity to the poor, or the Pilgrimage, or any of those
things. He thinks he has the right to take zakiit and other things forbidden the rich. He
is a great offender in this.
A fifth, that cash waqf is in little-esteemed books wherein joint partnership, com
merce, and the like is mentioned. Now in our day they profit from usury in the very
fashion that the Prophet of God censured. The scholars also censured it, made clear its
sinfulness.
A sixth, that most of the waqf administrators are ignorant and don't recognize the
pictures of usury in the Book; they make profit with loans and sale. Any loan from
which profit is made is usurious. Some of them lead a dissolute life, taking interest
without even going through the motions of using legally permissible devices to do so.
They make waqf of usury and the forbidden, pure and simple, giving it to the admini
strators who consume the usury. They are in the same position as someone struck mad
and frenzied by the devil.
57

In December of 1572, nine months before his death, Birgevi completed his
last and most influential work on Islamic morality and ritual, The Mulzammadan
Path (al-!ariqat al-mulzammadiya ) ; in it the cash waqf is singled out as one of
the great evils of his day.ss Given the broad readership and discussion this book
received, nothing could more surely have assured that the cash waqf controversy
would become one of the major issues in the activist conservative reform move
ment which was coalescing at this time in the Empire.

TH E C A SH W A QF CON TROV ERSY I N PERS PECTIVE

The cash waqf controversy had begun as a straightforward difference of

opinion over legal interpretation among jurists within the government. It was a
sensitive policy issue, however, involving the disposition of large amounts of
capital and the livelihood of thousands, and thus was easily politicized on a
broader front by popular scholars like Bali and Birgevi, scholars working for the
most part outside of official judicial circles. Yet despite the intense debate, the
emotions among members of the Ottoman establishment, at most it was a
pressing matter of reform for a few. No one was imprisoned or exiled. The liberal
majority carried the day, but were willing to tolerate the persistent voice of the
conservatives.
It would not always remain so. In the seventeenth century the debate would
be picked up again - but this time by a nation defeated, at least in the minds and
emotions of the people. Then as part of a larger cry for reform it would become
polarized. Then there would be riots, and leaders from the left and right alike
Ibid., pp. 194-195.
" Al-Shaykh Mui).ammad Pir 'Ali al-Birgawi, al-Tariqat al-mubammadiya fi bayiin
al sirat al-nabawiya al-abmadiya (Istanbul, 1268/1851-52), pp. 259-260.
57

The Cash Waqf Controversy in the Ottoman Empire

307

exiled. Then, historians would apply to the earlier reformist debate their own
perceptions, castigate the conservatives for causing bloodshed, lump the early
reformers with the right wing street rabble with no more justification than a
Spanish king linking Luther to the peasant rebellions.s9
In interpreting the distinctive style of the Ottoman judicial system much
attention has been paid, and rightly so, to the large-scale introduction of the
kanun - 'secular' state law - into the judicial process. It seems apparent that
in some cases at least the Ottomans did not need kanun to strike out on new
paths of judicial interpretation. This says much for the flexibility of the
sharia; it says perhaps more for the flexibility of Ottoman legal interpretation,
a flexibility that must be recognized as one of the major factors in the success
of Ottoman imperial government.
This flexibility of the Ottoman legal establishment was never without its
critics. As we have seen, opposition to the acceptance of the cash waqf was
strenuous and loud, once debate was publicly opened by <;ivizade's action. There
were in fact solid legal grounds for resisting the cash waqf from the beginning.
By the I58os it was apparent that there were also solid political and economic
grounds, once the economy and political system of the empire came under the
pressures of an inflationary and expansive Europe and a series of long and
ruinously expensive wars in the East. How large a role peasant indebtedness
played in the endemic insurrection and revolt within the Empire in the last
twenty years of the sixteenth and first half of the seventeenth centuries has not
bee,n fully established ; but no one doubts now that it was an important con
tributing factor. Certainly the cash waqf represented a significant source of the
credit extended to peasants and townsfolk alike in this period.60 Conservatives
like <;ivizade and Birgevi may have condemned the legalized usury of the cash
waqf on legal and religious grounds; but there were material examples of the
results of that usury aplenty by the end of the sixteenth century.
59 As, e.g., Katip <;elebi did, and paraphrasing him the historian Naima, in their
discussion of the 'Kadizadeliler' episodes. Historians today still occasionally follow this
seventeenth-century view of sixteenth-century affairs; see the treatment of the cash waqf
and Birgevi in Halil Inalcik, The Ottoman Empire: The Classical Age, I JOO-I6oo
(New York, 1973), pp. 183-185. It might be noted that Luther himself, in 1540, in his
last of many attacks on usury from the pulpit, exempts from attack the interest on
loans made from church income ('widderkeuffiicher Zins') (Weimarer Ausgabe, 51
[1883], 333). I am indebted to my colleague Susan Karant-Nunn for this reference.
60 The only substantial source of information on credit and loan practices is the town
and city sharia court records. Where they have been published and analyzed, indebtedness
to the cash waqf has been found to be commonplace. See, e.g., Ronald C. Jennings,
'Loans and Credit in Early 17th Century Ottoman Judicial Records,' Journal of the
Economic and Social History of the Orient, 16 (1973), 203-209 for Kayseri, 1600-1625.
A review of the published (in summary) portions of the Ankara records reveals a
similar pattern (Halit Ongan, Ankaramn Numerali :jer'iye Sicili [Ankara, 1958]; idem,
Ankaramn Iki Numerali :jer'iye Sicili [Ankara, 1974]. And on the European side of
the Empire, Volumes 7 and 8 (1641) of the records of Monastir reveal that of 176 villages
in the judi cial district, 90 were collectively in debt to cash waqfs (I owe this information to
my friend and dedicated Ottomanist Bruce McGowan).

308 Jon E. Mandaville

POSTS CR I P T : T H E C ASH WAQ F I N A R A B L A N DS

Despite the burgeoning growth of the practice of the cash waqf north of the
Cilician Gates, it was resorted to little if at all in the Arab lands.61 Some exam
ples may be found there in the nineteenth century, but very few before ; this,
despite the fact that the great majority of the chief city judges in these lands after
l517 were Otto.man Turks, educated and experienced in Anatolia and Rumeli.
Judicial texts note this discrepancy, resolving the problem of its absence in the
south in the same fashion as the problem of its presence north was resolved
earlier. As the Syrian scholar Ibn 'Abibin (d. 1835) wrote in his Radd a/
Mukhtar, 'It follows from Mul_iammad's position [ta'amul, established practice]
that it would not be lawful to make waqf of wheat in Egyptian lands because it is
absolutely unknown there. [But] the waqf of dirhems is known in Turkish
territories [al-diyiir al-rumiya]. . . . Thus the waqf of dirhems is practiced in
Turkish lands and not in our lands. . . .'62
But then, did Ottoman judges actually refuse to accept cash awqaf when
subjects in the Arab lands submitted them for court approval ? Or were they
simply not submitted?63 And in either case, what were the implications for
monetary flow and capital investment between the Turkish and Arab provinces?
Whatever the practice in Arab lands, the cash waqf elsewhere was clearly
undisputed by the end of the seventeenth century. The Durr al-Mukhtar ,
written in 1660, reports, 'imperial decrees have been issued to kadis to permit
this, just as is found in the M a' riirjat of Ebii es-Suud.'64 All future references
to the matter, in fact, conclude in this vein. The practice had been fully
legitimized and, to the extent that any law could be in the Ottoman system,
codified, taking its place in history as yet another clearly Ottoman contribution to
Islamic law and
society.
PO R TL A N D ST A TE U N I V E RS I
TY PO R T L A N D , O R E GO N
61 Court records there are nearly silent on the practice. Kami! b. I:lusayn al-Ghazzi, in
his list of awqaf abstracted from the Aleppo records, notes one only from each of the
sixteenth, seventeenth, eighteenth, and nineteenth ceJJ.turies; in none of these cases is
interest rate mentioned (Kami! b. Husayn al-Ghazzi, Nahr al-dhahab Ji tarikh al-flalab,
Vol. III [Aleppo, 1342/1923-24], pp. 609, 625, 630). For all of its commonplace occurrence
in Anatolia and Rumeli the cash waqf is not mentioned in H. A. R. Gibb and Harold
Bowen's Islamic Society and the West, Vol. I, pts l and 2 (London, 1950, 1957), in
their chapter on waqf (pt. 2 pp. 165-178). Might this be because of the author's
greater interest and experience in the affairs of the Arab provinces?
62 Quoted in Suhrawardy, 'Waqf of Moveables,' p. 405. Ibn 'Abidin cites the earlier
al-Nahr al-fii'iq by Siraj al-Din Ibn Nujaym (d. 1596), another Syrian, for this opinion
(see Kqf II col. l5l6 for al-nahr ).
63 Note the cases cited above in n. 58, where all four endowers are probably Turks.
64 Quoted in Suhrawardy, 'Waqf of Moveables,' p. 347, and see also p. 379.