The transformation of Ottoman Waqf law in the light of istibdal practices

Istibdal means the exchange of waqf with property. Since the waqf is institutionally built on the idea of keeping a property, eternally, out of circulation, istibdal is a legal institution which is hardly explainable and very open to abuse. As a matter of fact, there is a lot of historical data about how istibdal was instrumentalized on the way to the annulment of waqfs, and the focus of the relevant criticisms was on the kādīs, who were considered the main authority in making the decision of istibdal. Eventually, in the Ottoman Empire, with the amr al-sultān dated 951/1544-5, a supervisory mechanism was developed over the kādīs, thereby the decisions of istibdal concerning the reel estate waqfs became subject to the permission of the sultan. During and after the constitutional period, laws were enacted that made it possible to exchange the waqfs in return for cash, only by means of the Ministry of Waqfs, dispensing completely with the need for the shar'ī judicial process. The presence of the parliament also provided an opportunity to develop a relatively stronger qānūnī argument, for and against the fiqhī one, and thus smoothed the way for reforming the waqf system. The reforms were built on the idea of disregarding the benefit of minor waqfs for the benefit of the major Waqf, namely the Waqf Treasury. Such modernized fiqhī solutions, that are extremely difficult to be acquired with the tools of the conventional fiqh, were legitimized by the new qualifications ascribed to the caliph's choice. The new usūl of this hybrid and multi-denominational legal order, that is to say the new fiqh, that combines qānūn and fiqh in one body, was also drawn up. The caliph, who was placed at the center of the legal system, was depicted as the main transmitter of the binding character of the law.