The Problem of Determining the Type of Endowment and its Impact on Judicial Rulings: A Comparative Jurisprudential Study

Abstract

This study addresses the issue of determining the type of waqf as a jurisprudential and judicial problem with a direct impact on judicial rulings. It aims to clarify the conceptual framework of waqf and its types, outline the rules of judicial characterization regarding the wording, the intention of the waqif, and supporting evidence, and analyze the effect of characterization on entitlement, administration, disposal, and termination of waqf. The study adopts a descriptive-analytical comparative methodology across three legal systems: Iraq, Egypt, and Jordan. It relies on classical and contemporary jurisprudential sources, judicial rulings in these countries, and current waqf legislation. The study concludes that judicial characterization of waqf has decisive effects on determining beneficiaries, managing the waqf, permitting or restricting disposal and substitution, and the termination of the waqf. The comparative analysis indicates that the Jordanian approach is the clearest in unifying criteria between wording, intention, and supporting evidence, whereas the Iraqi judiciary requires standardization to reduce disputes and clarify judicial application. Based on these findings, the study proposes amendments to the Iraqi Waqf Law No. 34 of 2012, aiming to define waqf and its types clearly, establish judicial characterization principles, mandate official registration, and require annual reports from the nazir (waqf manager), thereby ensuring the protection of beneficiaries' rights and the stability of waqf administration.