In contemporary Iraq, there is an interesting and ever evolving interplay between non-state affiliated Shi’i seminaries, whose jurists have the authority to determine the content of Islamic law, and the state, which makes and enforces its own law.  As I try to show in my recent article Engagements and Entanglements: The Contemporary Waqf and the Fragility of Shi’i Quietism, the greatest areas of tension between these two institutions lie in those areas in which both the state and the jurists have a continuing interest.  I find the most interesting of these to be the waqf, which is an Islamic real property endowment, established by a grantor for a specified religious or charitable purpose.

Jurists have an obvious interest in the field. The very concept of the waqf comes from Islamic law, and ithas played an important role throughout Islamic history in directing private endowments for public benefit.  Moreover, jurists have a pecuniary interest in waqf administration, because many waqfs are endowments of revenue producing land (such as a farm), which revenue is supposed to support seminaries and other juristic activities. The recent history of post-colonial states throughout the Middle East effectively confiscating these funds to serve their own ends is a long and sad one. 

At the same time, states have an interest in regulating land in their territory, and they are better equipped to do this than jurists, whose professional training lies in discovering Islamic law rules from sources of revelation.  The result of these competing demands in the specific case of contemporary Iraq has been for the state to continue to administer the waqfs as it had throughout Iraqi history, but to subject that function to juristic oversight and supervision.  Specifically, the relevant laws require that the key officers of the state’s Shi’i Waqf Bureau, responsible for Shi’i waqf administration, be approved directly or indirectly by Iraq’s highest jurist.  The highest jurist is then defined as the jurist with the highest number of lay followers. Moreover, the rules of the consensus of the Shi’i jurists (and in case of no consensus, the rules of the highest jurist) serve as the prevailing state law of waqf for Shi’i waqfs. 

There is an irony to this approach, in that historically the Shi’i jurists were suspicious of the state and political authority. These rules deeply entangle them in state political affairs.  The irony best reveals itself in one key provision which was designed to insulate the jurists from political interference, and yet does the opposite. Specifically, the provision prohibits the state from interfering in juristic affairs “except with the permission of the highest jurist.” 

At this moment, Grand Ayatollah Sistani is obviously the highest jurist.  However, Sistani is advanced in age, and there are commonly disputes following the death of a high jurist over his successor.  Never before has the state had the formal power to support one candidate over another by deciding who the highest jurist is as a matter of state law. It has that power now.

Learn more in “Engagements and Entanglements: The Contemporary Waqf and the Fragility of Shi’i Quietism” from the latest issue of Journal of Law and Religion, free to read until 15 October.

Haider Ala Hamoudi is Vice Dean of the University of Pittsburgh School of Law as well as Professor of Law.