Istibdāl in justice mamluk


A waqf consists of setting aside a fund (ʿayn) for the benefit of the poor and needy or of persons designated in the will of the wāqif. It was destined, at one point in its history, to proceed through istibdāl in order to be renewed and to reinforce its public usefulness after a period of decline.

In the Mamluk period, during which this process became very widely used, people often had recourse to it in the mağlis al-ḥukm al-ʿazīz. Its realization depended on a legal system that developed in several distinct stages, spread out over time. It required filing a qiṣṣa (request) with the judge of judges (qāḍī l-quḍāt), once the property that was the object of the istibdāl had been assessed.

Here are the four main steps of this procedure within the Mamluk legal apparatus:

1) verifying the validity of the mortmain status of the object of the waqf,

2) examining the request while considering the evaluations of the experts (ahl al-ḫibra) and the opinion of the superior judge’s assistant (nā’ib),

3) evaluating the interest of the replacement of the waqf (hence the name istibdāl) for its beneficiaries,

4) the judge of judges decides whether or not to give his authorization (al-iḏn al-šarʿī) in favor of the istibdāl.

Around ten of the Mamluk documents that we have available in the CALD database give an account in key passages of codified legal language of the stages of this procedure, very nearly the same stages that we find presented in detail in some notarial treatises from this period.

This legal process must still be reevaluated throughout the history of waqf en examinant be examining the legal acts concerning it. We will thus be able to measure the socio-economical efficaciousness of the istibdāl in the Middle Ages in Muslim societies, especially in the Near Orient.