Hagia Sophia, Just War, the Inviolability of Awqaf, and the Meaning of “Prayer”

I received many gratifying letters of appreciation for my blog “Sincere Advice for Erdoğan on Hagia Sophia” published in July, in which I urged Mr. Erdogan to let Christians as well as Muslims pray in the Ayasofya now that it was to be reopened for prayer.  Only one person protested my suggestion. On the Sociology of Islam listserv, our dear brother Dr. Yusuf Ziya Kavakci (Emeritus Professor, Advocate, Ankara Bar Association), while expressing satisfaction with my summary of the controversy, expressed deep disappointment in my proposal, declaring it to be “unexpectedly  inconsistent” with my summary and “a reflection of a very non legal liberal way of thinking.”

To my attempt to explain why my policy proposal is not in conflict with Islamic law, Prof. Yusuf replied that the conquered church had become personal property of Fatih Sultan Mehmed who then established a waqf with specific conditions. He objected to the subjecting this analysis to any just war considerations “that that may bring us to discuss the legitimacy of whole past of the world today including USA, Canada, whole South America and Europe etc.” expressing his opinion that the Ottoman contribution to the structure “is over 70/80%” and “totally owes its existence to Ottomans care and very carefully observed maintenance, for which concerned Christians must be thankful to Ottomans.” Further, he argued that there is an ambiguity in the term “prayer,” and that while “Christians and any other faiths’ followers can pray in terms of duas [supplications] and zikr [remembrance of God]” that the only formal prayer permissible in a mosque is formal Muslim prayer [salah]. He also claimed that various Christian denominations will not allow other denominations to hold formal prayers in their “consecrated halls,” let alone allow Muslims to pray salah there.

Here is my response:

I most definitely do wish to incorporate just war theory into this discussion. Just war theory is integral to Islamic law and I shall not betray the law by ignoring it.  As to the practical consequences of just war theory, that it raises questions about the legitimacy of all kinds of things including the colonization of America, well, “Let the justice be done though the heavens fall.” Having said that, I do not expect the heavens to fall since the passage of generations since the time of the theft of property does indeed affect the degree of the injustice on living generations since the maintenance of property does affect its ownership.

But to your main point: That the charter of a waqf is inviolable. Whether the property donated to the waqf was the legitimate property of the donor is a fair question of justice and must not be ignored. If the donor did not have just title to the property, then the owner cannot donate it. However, let us set that aside for the moment and for the sake of argument stipulate that Hagia Sophia was fair booty of war after the Muslims successfully defended themselves from aggression by the Byzantines, forced to the use of arms because the Byzantines would not surrender or negotiate terms of a treaty.  Let us further stipulate that the church and state in Byzantium were so intertwined that there is no merit in distinguishing state property from church property and that therefore the building did indeed become state property administered by the Sultan on behalf of the ummah. Even so, as I and others have argued that does not mean that they building cannot be shared with Christians, as was done in Cordova, Damascus, and elsewhere.

Although it is not necessary for my argument above,  I do wish to challenge the premise that the charter of a waqf cannot be changed no matter what.  The jurists do admit of cases when the waqf charter may be terminated: such as when the goods of the waqf have been altered or destroyed, or if it is used to perform acts against Islamic law, or if it comes to violate the notion of waqf.  I would argue (against the prevailing thought) that, by the same token, when the charter of a waqf becomes counter-productive or harmful, then means for amendment of the charter must be allowed. It is important to understand that at the time that the colonial powers occupied the Muslim world, many of the awqaf had become obsolete and the fuquha’s insistence that amendment of their charters was haram gave the colonists the excuse to destroy the awqaf and in some cases to dismantle the waqf system itself. To claim that a waqf charter cannot be amended when its purpose is obsolete is a legal absurdity that leaves the ummah vulnerable. It is as absurd as a system that insists on the production of buggy whips long after automobiles have rendered them obsolete. Rather than double down on this claim, the fuquha should be divining Islamically permissible means for waqf charter amendment, and any new waqf should include procedures for amendment in the charter itself. (I have set up such a waqf that provides income for the Minaret of Freedom Institute and the Islamic-American Zakat Foundation.  The charter specifies what should happen in the event that either of these institutions should become extinct.)

Let me address your objection that the word “prayer” is ambiguous and that du`a must be distinguished from salat or mass which must be distinguished from one another. Mass is as essential to formal prayer for the Orthodox Catholics as salah is to Muslims, and I cannot conceive that the Christians of Damascus would consider that the space allocated to them in the Grand Mosque is being used for prayer were it confined to supplication and exclude the mass any more than the Muslims who pray jum`a at a synagogue in northern Virginia would consider themselves to have prayed jum`a if they were restricted to du`a.

That the Christian denominations dispute among themselves is irrelevant to the question. The Christians disputed among themselves over the Church of the Holy Sepulcher in Jerusalem to the point that some sought to lock others out.  They resolved the problem by entrusting the keys to a Muslim family that to this day opens and closes the church without discrimination among them. I again echo Omar Mukhtar: “They are not our teachers.”

May Allah guide us all closer to the truth,

Imad-ad-Dean Ahmad, Ph.D.
Minaret of Freedom Institute
www.minaret.org

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