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The grammars of adjudication

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Zouhair Ghazzal

Chapter 4: Mourning the past:The thin line between ownership and possession

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  • 1 This has been brilliantly articulated in Luc Boltanski and Laurent Thévenot, De la justification. L (...)

1There are several advantages into forcing the discourse principle as the point of entry. First, theory and practice are not looked upon necessarily as two opposing poles. In fact, theory is supposedly the abstract discourse of the jurists, which prescribes the normative rules within a community, while practice is relegated to “applying the law,” that is, the judicial decision-making process of the sharī‘a courts, in addition to a few other related practices such as the drafting of fatwās. But by positing theory and practice as discursive practices, both levels are looked upon in terms of discourses they construct for their specific purposes—the discourse of the jurists and that of the courts (judges), or of muftīs. Second, the novelty here is the positing of court documents as discursive practices and the implications of such a decisive step: what becomes essential at this level of praxis is not solely how the courts “apply the law,” but how such things as the presentation of a case by the disputants, procedures, witnessing and oath-taking, judgments, legal devices (iyal), and the final ruling, are discursively constructed. Third, once the two levels of theory and practice are construed on the basis of their linguistic discourses, “theory” and “practice” become indeed relative terms since both levels—due to limitations imposed by language—are imaginary and practical at the same time. Thus, legal doctrines and fatāwā are no less practical than a judge’s ruling. Any text is considered as representing the construction of “worlds” in themselves to which the social actors adhere.1 Finally, the interpenetration of both discursive levels is the basic structure of law and initiates the circle’s point of entry.

2The above remarks, however, are not meant to imply that the discursive practices of the jurists and the courts share a similar structure or converge towards the same goal (even though this might be true in few limited cases). For one thing, the discourse of the jurists is not construed around individual cases, but along a long line of opinions and a juristic typology whose conservation and renewal is at the basis of the jurist’s own text. Moreover, jurists are concerned with the systematic character of the law and the normative rules it attempts to prescribe. At the opposite side of the legal spectrum, judges consider the case as the basis for their rulings; but in doing so, and besides the limitations imposed by the structure of language itself, they have to draft their rulings within the constrictions of the legal doctrines of their own school (this does not imply, however, that each case should be necessarily based on a specific doctrine). In order to equip arguments with decisive force, jurists need two cooperating contexts: cases and texts. But Islamic law created a distinct category between the two: the fatāwā, in themselves another form of textuality, have liberated the fiqh from referring directly to cases. This inevitably led to fiqh manuals obsessed with their own typology of opinions derived from centuries of experience and to a textuality, grammar, and syntax altogether different from the way judges drafted their rulings.

  • 2 Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, (...)

3In order to describe the discursive intricacies of theory and practice, Habermas’s distinction between facticity and validity could be of help in this context.2 In sharī‘a law, the validity of the system was primarily an outcome of the religious and divine character of the law. Not only did religion ensure the legitimacy of sharī‘a law, but more importantly, it bridged the gap between the facticity of daily life—procedures of the courts, strategies of the social actors, unpredictability and harshness of “economic” life, etc.—and the validity of the system as a whole. Thus, the tension between facticity and validity found its solution on the assumption that a “fact is legitimate” only if valid under sharī‘a law.

  • 3 See, Antoine Garapon, Bien juger. Essai sur le rituel judiciaire (Paris: Éditions Odile Jacob, 1997 (...)
  • 4 Niklas Luhmann, A Sociological Theory of Law (London-Boston: Routledge & Kegan Paul, 1985), 88: “Th (...)
  • 5 Habermas, Between Facts, 30: “In contrast to convention and custom, enacted law does not rely on th (...)

4Cases should in principle enliven and bring new problems to texts, and texts, in turn, should point to what ought to be legitimately considered as a “case”; in other words, the seldom posed question, What is a “case”?, can only find its answer in light of the texts that render the construction of a case legitimate: in fact, social actors do not come to court thinking that any lawsuit would be acceptable as a valid case; instead, they slowly learn that rituals are at the heart of judicial life—and the courts in particular.3 Yet, the most disturbing aspect of Ottoman sharī‘a courts is the degree to which “facts” were eloquently vacated. To give one specific example among many—and probably the most obvious—testimonies of witnesses were either accepted or rejected without direct or cross examination of any kind; instead, witnesses typically repeated their party’s claims, and this repetition of the plaintiff’s or defendant’s statements, if left unchallenged by the opposing party and approved by the judge, was in itself enough “evidence.” In fact, whenever a bayyina was requested, this invariably meant bringing a couple of witnesses to court, and having them take oath and testify (written documents were, by contrast, much less circulated and seem to have had less impact). The process of oath-taking and witnessing-without-examination brought predictability and an inherited matter-of-factness to the courts: oath as magical violence replaced the unpredictability of communicative socialization.4 Thus, the core of the language of the sharī‘a courts, instead of being construed on the basis of intersubjective communication—or individualistic speech acts—represented the authority of the judge’s ruling and his paraphrasing of the others’ utterances. Those texts whose telos was the ruling itself were strictly ritualized instead of opening up the proceedings to the unpredictable. Surprisingly, the construction of a typical court case very much paralleled the textualities of the jurists in the way it tied up all facts to norms. Thus, customary practices were favored over the intricacies of social intercourse and, in a way similar to oath-taking, introduced an element of inherited matter-of-factness.5

Counterfactual juristic discourse

  • 6 See Chapters 3, 5 & 6.
  • 7 Luhmann (Sociological Theory, 138) correlates the emergence of individuals’ disputes over status an (...)
  • 8 See Chapter 11 infra.
  • 9 See Chapter 3 supra.
  • 10 D. Neil MacCormick and Robert S. Summers, ed., Interpreting Statutes: A Comparative Study (Aldersho (...)

5Some of the above claims will be assessed by adding to the already discussed representations on judicial decision-making and custom, those on property, rent, and tax. At a first level, Ibn ‘Ābidīn’s discourse is reconstructed in terms of its own discursive strategies:Considering that his work represents a closure to anafī legal theory in its classical form—while the Majalla (1877) was a second non-classical and bureaucratic closure—how does it maintain that equilibrium between canon law and the realities of the nineteenth century, or, more broadly, the Ottoman period? At another level, and considering that the majority of court cases were either contracts or contractual settlements, how well did this discourse articulate with the procedures, legal devices, and rulings of the sharī‘a courts?6 One cannot escape the reality that even at their most basic level—that of legal terminology—the two discourses did not correlate that well. Thus, Ibn ‘Ābidīn’s language, haunted by the classical distinctions between ‘ushrand kharāj, was not much in tune with the harsh realities of the mīrī-iltizām system as a whole (or its predecessor, the timār, for that matter). This does not imply, of course, that he was not aware of the land tenure issues of his own time; it simply shows that even for a pressing issue like landed property, the constrictions that the fiqh imposed upon itself, in terms of adherence to its own past, were more crucial for the survival of the school than coming to terms with the social and economic realities of the time. Discursive practices operate within the general diagram of power relations construed for a particular society. Thus, for example, the slow process of land commercialization in Ottoman societies and the desire to transform public holdings into private domains, have triggered individuals’ disputes over status and landownership titles.7 As a result, the observed “gap” in the discourse on land ownership titles and taxation is unique to land-related issues and the jurists’ discourse—which basically ignored recognizing the system altogether—maintained a passive resistance to changing land exploitation patterns. However, in more conservative domains normally under “a private jurisdiction,” such as personal status, marriage, divorce, and inheritance, the gap was much less pronounced. But, broadly speaking, the classical notions of contracts and obligations, not to mention crimes and torts,8 which have survived for centuries in the anafī fiqh, even though they have remained fundamentally the same in Ottoman times, had all kinds of “marginal” contractual settlements attributed to them in which the “equality” and “immediacy” of exchange was altogether bypassed by means of the procedural fictions of the sharī‘a courts.9 In a modern framework, the notion of “gap,” which is a notion of the social sciences rather than a legal one, usually denotes the common fact that judges, whenever confronted with hard cases for which no specific codes exist, need to “broaden” the statutes through an interpretive process that adapts old codes to new realities (even though most systems deny that gaps do exist).10 But in nineteenth-century Beirut and Damascus, the perceived gap between the juristic discourse and that of the courts achieves a different meaning, since not only basic terminological discrepancies became instituted within the system, but more importantly, the courts seem to have created their own procedural routines. This brings us to the main issue addressed in this chapter: Considering that all kinds of property and contractual rights that emerged throughout the Ottoman period were willingly ignored in anafī doctrine, and then only marginally integrated in the form of fatwās and procedural fictions, how valid is the notion of “gap” under those circumstances?

Judicial decision making and procedural fictions

  • 11 On the original meaning of formula in the Roman legal system, see, Barry Nicholas, An Introduction (...)

6Needless to say, the competition over landownership titles and status, in a way hitherto unknown in previous centuries, created a need for new formulas in the courts.11 But due to the fact that the majority of lands in Bilād al-Shām were a combination of mīrī and waqf—hence by definition associated with a hard-to-change status—the formulas had to follow fictitious procedures. Hence the courts gave way to all kinds of fictitious litigations, in particular in substantial land transfers between family generations (Chapter 5 infra), or when the line of beneficiaries in a waqf needed to be modified (Chapter 6 infra), or when specific “tenancy rights” (such as the khulū, kadak, marad, or musāqāt) had to be officially recognized as legal “investments” in the property, thus transforming the tenant into an “alternate owner” (Chapter 3 supra). All such cases show a “bourgeoisie d’affaires,” crossing the traditional factionalism of the a‘yān, and eager with the extra cash it had to invest in properties with an ambiguous status—and even modify if necessary that status.

  • 12 The same issues could be raised in the context of modern legal systems, see, for American case-law, (...)
  • 13 See Chapter 10 infra.
  • 14 Interestingly, such a procedure of memorization was not used in Damascus—except in the only sijill (...)
  • 15 Fatāwācollections are of different kinds: 1) a marginal number of court documents contained their o (...)
  • 16 The sharī‘a courts were gradually deprived, throughout the nineteenth century, of some of their mor (...)

7Considering that the fiqh was too handicapped with its classical notions of property ownership to be able to properly assume major transformations, how were such formulas—the fictitious litigations—created, and what was the role played by judges in this process? First, due to the status of current research and the fact that the primary focus has been on the factuality of court documents rather than their analysis in terms of their judicial writing (or as “social texts”), it is impossible to know for sure when such formulas were created, and whether the process was gradual or sudden. Second, by the early nineteenth century, such cases not only had well designed formulas but were quite predictable and safe. In fact, if, to simplify, we were to divide the judges’ rulings between expected and unexpected decisions, then it is safe to say that there was no “great unknown” in decision-making. It is as if such formulas were not designed on a case-by-case basis, but rather to situate the “case” into something more generic.12 Litigation (khuūma) was a safe path: it rendered a judge’s ruling hard to revoke. Third, even though no major qānūnnāme were drafted after the seventeenth century, sultanic legislation did exist in the form of firmans, imperial orders (awāmir sulāniyya), edicts, and the like, all of which, either separately or as a combination, add another discursive level.13 In nineteenth-century Beirut, such legislations were copied into the sijillātof the sharī‘a courts so that judges could refer to and apply them.14 But more research is needed to check upon the extent of their applicability and to see whether they supplied the courts with a specific terminology and set of procedures (the same applies to the fatāwā which are thought to have acted as an intermediary level between the fiqh and the courts).15 Fourth, the sharī‘a courts were dispossessed in the 1860s, after the 1858 Land Code and the restructuring of the legal system, from their land cases: they proved to be too impractical.16 Finally, it would be rushing towards unwarranted conclusions if we perceive the 1858 Land Code as some sort of legalization of the procedural fictions of the first half of the nineteenth century. For one thing, the Code and the procedural fictions belong to two entirely different and incompatible systems, one French and the other Islamic. For another, if additional research shows that such procedural practices were also common throughout the eighteenth century, the “legalization” argument would become harder to sustain, simply because it makes no sense to assume that the Ottoman authorities suddenly woke up in the 1850s in order to ease land ownership when court procedures had already been leanig towards quasi-ownership for at least two centuries.

The self-transcending power of discourse

  • 17 See, Niklas Luhmann, “Quod Omnes Tangit: Remarks on Jürgen Habermas’s Legal Theory,” Cardozo Law Re (...)

8The above remarks are not meant to favor one discursive level over another—a common error in current Ottoman historiography—on the basis that one—the courts—is more “real” than the other. The two levels depend on and assume each other’s existence in a strange way—in particular when their syntax and terminology seem so distant from one another. What they obviously have in common is their use of language; and because of this, they connect with and and open up to each other at other levels (or lifeworld spheres) as well. More important, because discourse is structured on language, it has a self-transcending power of its own: that is, it never attempts to solely embrace the factuality of reality; to the contrary, it transcends factuality by means of idealizations and counterfactual assumptions.17 In the sphere of law this implies that juristic discourse creates normative rules whose validity claims exceed facticity. The sharī‘a courts had to assume the validity of those normative rules even if they proved to be obsolete, and the discourse of the judges created its own correlative set of idealizations and normative values.

  • 18 See Samadar Lavie, The Poetics of Military Occupation (Berkeley: University of California Press, 19 (...)

9The sharī‘a court documents have been looked upon by some researchers as of limited use in modern research due to their “summary” like method in covering “cases,” while others have embraced them wholeheartedly as a major source for the Empire’s social history. Yet, between these two extremes lies another still unexplored dimension of court documents: their textuality and discursive function. The focus on discourse shows that normative validity claims leave little room for the factual—empirical—elements that should in principle be at the heart of the courts’ hearings (the parties involved and their representatives, their utterances, lists of properties, oaths and utterances of witnesses, etc.) to be able to force the litigations and hearings in an unexpected direction. Thus, the summary like method of inscribing a hearing in writing, and its strict coding of “what happened,” shows how much validity claims exceeded, in such legal systems, facticity. It also points to the fact that much of language is indeed referential: it is about something whose existence it presupposes but whose ontology it may in fact be creating when it presents it as an object of speech.18

Looking for signs of landownership: the ambiguities of rent and tax

  • 19 Ibn ‘Ābidīn, Radd, 4:175-194: “Bāb al-‘ushr wa-l-kharāj wa-l-jizya.” In-text sources, unless otherw (...)
  • 20 On the structure of the Radd, see Appendix 1 infra.
  • 21 In nineteenth-century sharī‘a courts and majālis, kharāj has been completely dropped as a term; ‘us (...)

10An important “chapter” in Ibn ‘Ābidīn’s Radd,19 on land, rent, and tax, comes concealed among the sub-sections of “Kitāb al-Jihād.”20 Such an insipid organisation only conceals the fact that the Ottoman mīrī-iltizāmsystem was a long way from similar systems in the early and medieval Islamic empires—and only remotely related. One would have expected for that matter an entire Kitāb—if not a treatise on its own, as inaugurated in the early Islamic tradition by Abū Yūsuf’s Kitāb al-kharāj—devoted to the Ottoman land tenure and taxation system. Instead, Ibn ‘Ābidīn followed the conservative path of his predecessors by limiting himself to the classical categories of ‘ushr, kharāj, and jizya, all of which have become obsolete in an Ottoman context, even when the same term has been kept only to be used for other purposes.21 Thus, ironically, in the voluminous eighth-volume Radd, which was completed by the author’s son at a time when the iltizām system was already becoming history, there isn’t a single chapter or section fully devoted to the mīrī-iltizām land-tenure system.

11Ibn ‘Ābidīn begins this “chapter” with a recapitulation of the basic anafī notions on the ‘ushrand kharāj. Lands divided among the Muslim conquerors, not on the basis of booty (ghayr al-ghānimīn), should be classified as ‘ushr-lands (‘ushriyya, from ‘ushr, or one-tenth of the produce) “because the kharāj should not be imposed [yuwaẓẓaf] on a Muslim” (4:176) even though analogy (qiyās) would suggest that such lands should be kharāj because they were in close proximity to kharājīlands; but Abū Yūsuf opted, however, for the consensus (ijmā‘) among the Companions who decided that lands divided among the Muslim conquerors should be subjected to another “tax” category. Indeed, the fact that the division between ‘ushr and kharājwas a religious one was one of the most commonly held assumptions about the early Islamic “tax” system. Furthermore, Abū Yūsuf conceded that a land “brought back to life [a]” by a Muslim should be “sacred [qurba],” while Shaybānī identified water as the “first denominator [al-mu‘tamad al-awwal]” to determine a land’s status regarding taxation and other matters: because water itself could be either ‘ushr or kharāj, the status of the land should be determined accordingly. In fact, this separation between land and water produced an even more complex tax and rent system: some have suggested that a Muslim, whose land was irrigated by kharāj-water, should also pay the kharāj, while others insisted that as long as a land was ‘ushr, it did not matter much what the source of its irrigation was.

12Be that as it may, two points are worth noting at this stage. First, it was essential in the early Islamic systems to distinguish between “taxes” collected from Muslims and non-Muslims. How sharp this distinction was is another matter since there were lots of debates in the long history of the anafī fiqh on whether both ‘ushr and kharāj could be applicable on a single land lot. This did not make much sense to some jurists but it did to many others. Suffice it to say, however, that the distinction between ‘ushr and kharāj meant a lot ideologically: in times of conquests, the fundamental distinction between dār al-Islām and dār al-arbhad also its “tax” equivalent.

  • 22 The concept of ownership in Islamic law—a distinction not yet actualized at the time of Abū Yūsuf—i (...)
  • 23 Ya‘qūb b. Ibrāhīm Abū Yūsuf, Kitāb al-kharāj (Beirut: Dār al-Shurūq, 1985), 178.
  • 24 From aswad, meaning black. The term “Sawād lands (arāī al-Sawād)” was one of those strange terms c (...)
  • 25 Abū Yūsuf, Kitāb, 179.
  • 26 Abū Yūsuf, Kitāb, 174.

13Second, and more important for our purposes here, in whatever way this distinction might have operated in practice—whether it was a “sharp” or “soft” separation between the two “taxes”—what was essential was that a consensus was held among early anafī jurists that these lands were privately owned.22 Thus, speaking of ‘ushr lands, Abū Yūsuf was adamant that the Muslim “owners” of such lands “should not be forced out later [lā yukhrajūn ‘anhā fimā ba‘d, meaning once they paid their dues and taxes], and they are allowed to inherit and sell them [yatawārathuna-hā wa yatabāya‘ūna-hā], and the same applies to all localities [bilād] whose people have converted to Islam: [the lands] and what is on them belongs to them.”23 The same applies to the Sawād24 lands (the fertile lands in Irāq) which were mostly kharāj: “[The imām] has no right to take them [or confiscate them] from [their owners]; it belongs to them [hiya milk lahum] and they inherit and sell them and pay their kharāj; and they should not be demanded what they cannot pay [lā yukallafūn min dhalika mā lā yuīqūn].”25 Once a privately owned land is confiscated from the person who owned it and granted to another either as a ‘ushr or kharāj land, that in itself would constitute a violation of the inalienable rights of the original owner and an act of ghab (usurpation and unlawful use) as such: in such a case, the land should go back to its original owner “once a judge has established that it belongs to so-and-so, and that the imām so-and-so took it from him by force in violation of all his rights, and that it was assigned [aqa‘a-hā] to so-and-so, the person who now owns it; it should therefore be taken from his hands and given back to its original owner from whom it was taken in the first place.”26 Abū Yūsuf’s desire to protect “private properties” from abusive usurpation stems more from a moral standpoint than a legal one: in fact, the implication in all the above passages is that it is not in the imām’s own interest to deny to particulars, or to their heirs, what he had already assigned to them. Thus, Abū Yūsuf never worked out a fully coherent concept of milk—how it should be legally protected, and on which basis a property ought to be considered as milk, etc.—since that kind of property was a donation (or gift) from the imām (or sultan), rather than something that an individual acquired through a laboring effort; even though the contractual nature of labor ought to have constituted the cornerstone of the sacred relationship between those particulars and the imām.

Genealogy of a legal fiction

14Such a consensus was also reiterated among late jurists, among them Ibn ‘Ābidīn. The claim that the lands which were “conquered by force [futiat ‘unwat-an]” should remain the “property of its people [mamlūka li-ahlihā]” (4:177) was first put forward concerning the Sawād region in Irāq. Similar claims were later made concerning the conquered lands of Syria and Egypt: conquered lands, which were later divided among Muslims, were subject to the tithe, calculated on the basis of the one-tenth—the ‘ushr—of the produce (yield), while the other remaining lands, “which were left by the imām in the hands of their own people who were defeated” (4:178), were subjected to the kharāj land-tax (non-Muslims also paid, in addition to the kharāj, a poll-tax known as the jizya). However, even though one tax, the ‘ushr, was proportional to the produce while the other was a straight land-tax, both implied that the land in question was the “property of its people.” Those lands, which were “private,” could be rented, sold, or transferred by their owners from one generation to the next until there were no more inheritors (wa tūrath ‘an-hum ila an lā yabqa min-hum aad): the property should then be transferred to bayt al-māl.

15What Ibn ‘Ābidīn outlined thus far became, for later generations of jurists like himself, the “legal fiction” upon which their entire “explanation” of the “tax” and “rent” system rested. First, the newly created taxation system of the first few centuries of Islamic rule was never perceived as one with direct economic motives, but rather as a system devised initially by the Prophet and his Companions as part of the religious and economic enterprise of the umma. Thus, it was no concern for all those who took the trouble to elucidate the workings of the system to point out differences between “tax” and “rent,” or on what basis calculations and assessments were made, or how the cash “surplus” circulated for that matter. This is important to remember as a reminder that distinctions between “tax” and “rent,” as modern categories of economic thought, should be taken cautiously for ancient societies, in particular in those where “rent” seems to be based on some absolute assessment rather than on a differential one (“modern rents”—that is, the “price” paid for the use of land—are valued relationally with respect to each other, or according to the “least productive land,” as David Ricardo would say). Second, with non-Muslims gradually converting to Islam, and the state acquiring more and more land, the classical distinctions of ‘ushr and kharājfell into desuetude. However, as the case of Ibn ‘Ābidīn shows, such distinctions were kept alive in the fiqh literature. For one thing, adaptations and interpretations of the legal material needed to be perceived as part of an imaginary total history. Because this legal history had to be constructed in its totality, all arguments had to fit together in a single coherent whole.

16It thus became common in the legal literature of the Mamlūk period and later to “explain” the massive state ownership of agrarian lands in terms of their “transfer to their treasury because of the death of their owners” (4:178). That story had several twists and turns: the death of a kharāj payer without heir; his property was then transferred to the treasury and thus became ipso facto the property of the sultan who acted like a “guardian” (waī) vis-à-vis his “subjects,” the ra‘iyya, who in turn enjoyed the status of “orphans” in need of being taken care of (obviously by the sultan who acted as their sole guardian). Because anafism posited the guardian as enjoying the right of “making use” of the orphan’s endowment in a way that should be “beneficial” to the latter, the sultan was thus justified immense (natural) rights to keep or sell the properties he wanted.

  • 27 Ibn ‘Ābidīn, Radd, 2:326-334: “Malab muhim fī ukm arāī Mir wa-al-Shām al-sulāniyya.”

17Even though in his magnum opus, the multi-volume Radd al-mutār,Ibn ‘Ābidīn did not even include a single chapter on the mīrī or iltizām or the older timār system (and seldom did he refer to them by name for that matter), he nonetheless addressed the issue, in a few pages, of the ambiguous nature of what he referred to as the “sultanic lands” (commonly called mīrīlands) in Egypt and Syria (Shām), in the chapter on “Bāb al-‘ushr,” which in itself is confusing since the ‘ushr was par excellence, in the classical anafī doctrine, one of the taxes imposed on private lands owned by Muslims. The section in question, entitled “An important request concerning the ruling [ukm] over the sultanic lands of Egypt and Syria,” began where Ibn Nujaym had left off a couple of centuries earlier:27

  • 28 For a discussion of this chapter, see below.
  • 29 Ibn ‘Ābidīn later admits (see below), however, that what the peasants—as “tenant-farmers”—were payi (...)
  • 30 Ibn ‘Ābidīn, Radd al-mutār, 2:326. It is not possible in this context to take into account the pro (...)

The sultanic lands of Egypt and Syria were originally [fi-l-al] kharājiyya,but not anymore. It has been stated in [Ibn al-Humām’s] Fat al-qadīr that what is extracted [ma’khūdh] from the land in Egypt now is the rent [ujra] rather than the kharāj.So [Ibn al-Humām] noted: Don’t you see that [the land in Egypt] is not owned by the farmers [laysat mamlūka li-l-zurrā‘], but became the ownership of bayt al-māl because of the death of proprietors with no heirs [mawt al-mālikīn bilā wārith][?]. And the same applies to the lands in Syria, as it was stated in Jihād shar al-multaqa, but the fact that it all became the [property of] bayt al-māl is an issue [bath] we shall deal with in [book 4 in] the chapter on the ‘ushr and the kharāj ...28 And since it belongs to bayt al-māl, the kharāj could not be imposed on it anymore;29 as to whether the farmers should pay the ‘ushr or not is an issue we will discuss in that chapter too (2:326).30

  • 31 Despite its importance, this is not a widely discussed topic, with the notable exception of Baber J (...)
  • 32 Because the edited version of Rasā’il Ibn Nujaym(Beirut: Dār al-Kutub al-‘Ilmiyya, 1980) is at time (...)
  • 33 Ibn Nujaym, “Kitāb al-rasā’il,” 104a.

18The legal fiction of the kharājproprietors dying without heirs was probably first constructed, as the above passage mentioned, by the Egyptian Mamlūk muftī Ibn al-Humām, but it took shape in a more modern form, and adapted to the Ottoman conditions of the sixteenth century, with Ibn Nujaym.31 In one of his rasā’il, entitled “al-Tufa al-mariyya fi-l-arāī al-Miriyya,”32 and relying heavily on what his Mamlūk predecessor, the Egyptian muftī Ibn al-Humām, already suggested, Ibn Nujaym has rooted his arguments, which basically legitimized the massive state ownership of the majority of rural lands, in the notion that “the imām was appointed an administrator for the general welfare of the Muslims [al-imām nuṣṣiba nāir-an li-maāli al-Muslimīn].”33 Combined with the role of “administrator” (ir) was that of “guardian” (waī) over orphans. Thus, the image of the ruler conveyed through such representations was that of a guardian over his orphans, where the ra‘iyya were the ones supposed to be in the position of “orphans,” thus implying also that they were “minors [irūn].” What is of interest here is this “bringing together” of representations—the political and economic—which in many societies are kept separate. Needless to say that the image of the guardian placed the imām—or sultan in the Ottoman case—in the position of a shepherd who had an absolute rule over his flock. Not only did it imply an absolute attitude of submission, but equally important was the absolute right that the sultan enjoyed over his subjects, primarily in their right to own or not own, and what should be left out as state property. In fact, the exclusive right, enjoyed by the sultan only, to take care of the orphans’ interests was mainly related to “managing” their properties: the conflict, which Ibn Nujaym had indicated, between the early jurists (mutaqaddimūm) and the later ones (muta’akhkhirūn) was on the degree of freedom the sultan should have enjoyed while assuming his duties as guardian to the ra‘iyya. Thus, while the early jurists were of the opinion that the imām should be given absolute authority to “freely sell [al-bay‘ mulaq-an]” whatever he pleases of the properties of his subjects, later opinions were much more restrictive and took the parallel between sultan and guardian almost literally. Following the basic sharī‘a rules on the guardian’s rights over the properties of his orphan, the late jurists suggested that the sultan-as-guardian should not sell anything unless the deceased person (who left the properties to his heirs and appointed the guardian) was heavily indebted, or unless the selling of the property, its exchange, or rent, would be beneficial to the orphan. Such restrictions, placed by later jurists, and known as the “seven questions [al-masā’il al-sab‘]” (4:183), because they placed seven conditions on the selling of an orphan’s properties, would have indeed constituted one of the signs of dissatisfaction that was manifested towards the massive state ownership of rural lands: Ibn al-Humām went as far as to request that the selling of “kharāj-lands” should only come out of necessity and conform, by “interpretation” (takhrīj-an), to the rules which a guardian had to follow concerning the selling of his orphan’s properties: in other words, the symbolic guardian of the umma’s properties was now requested, by a late generation of jurists, to become an empirical guardian whose bookkeeping activity was to be controlled by jurists.

  • 34 Ibn Nujaym, “Kitāb al-rasā’il,” 104b.

19Interestingly, if the sultan decided to buy for himself one of those properties whose ownership was transferred to the treasury, “he had first to order someone else to sell it, and then purchase it from [the buyer] for himself.”34 Some court cases do indicate that this was too a common procedure among (real) guardians in particular when a deceased person, who had appointed a guardian to overlook the properties s/he had left for his/her children, was heavily in debt (C 5-2 infra). Since the guardian was typically one close to the family, if not from within the family, he would purchase for himself at least one of the orphan’s properties in order to enhance the financial status of the latter; but that was done, however, in a way similar to what Ibn Nujaym prescribed for the sultan: first, the guardian would sell the property through an intermediary from which he would then buy it for himself. In fact, Ibn ‘Ābidīn had also posited the role of an “intermediary” as mandatory and noted how the jurists’ positions oscillated between those who gave the imām a “general guardianship [wilāya ‘āmma]” (4:182) and others who limited his freedom within the borderline of the “seven conditions.” The purpose was to establish the sultan as a guardian who did not own the properties of bayt al-māl. Thus, the sultan was someone who did own properties, but those were independent from those “belonging” to the ra‘āyā-as-orphans: he only “took care” of their properties without himself owning them. The sultan-as-shepherd to the umma was therefore not to be directly identified with the properties that in principle belonged to the treasury only.

  • 35 It is not clear whether such an ambiguous statement implied a no-tax-forever policy, or that only t (...)

20A person who purchased a property from the treasury should have the right to own it as milk, and he would bequeath it as waqf with his own specific conditions. Furthermore, once the imām-as-guardian decided to sell a property, he ipso facto lost the right to impose upon it the kharāj or ‘ushr: the price of purchase, described by Ibn ‘Ābidīn as “the equivalent of ownership [badal ‘aynu-hā: compensation for the tangible thing],” replaced either the kharāj or ‘ushr. On another occasion, Ibn ‘Ābidīn points out that once an old kharāj land was transferred to the sultan, and sold by him to an individual, “then the latter should not be subjected to the kharājbecause the imām has already extracted the badalfor the Muslims” (4:178), implying that since previous owners already paid enough kharāj over the years, the new owner did not have to go through this special land-tax. This owner will therefore not even be subjected to the commonly extracted “taxes” for such properties. The logic here could well be that the proprietor, having had already paid his dues to the state by purchasing a property, was exempted from additional “taxes.”35 The others, Muslims and non-Muslims, who at the moment of the early conquests, were either given their lands by the conquerors or had their rights as private landowners firmly established and approved: in either case, they had to pay either the kharāj or the ‘ushr (but not both) as a “counter-gift” for what the state had already given them.

  • 36 Since those “allocated” waqfs were kept by élite groups over long generational lines, what becomes (...)

21Jurists were quick to point out that the act of purchasing a property from the treasury and then bequeathing it into a waqf, established for those buyers rights that were significantly different from those “sultans, princes, or emirs” who were granted waqf lands by the sultan on the basis of an iqā‘assignment: that is, “the kharāj is perceived [by whom the land was granted to, the assignee] while its ownership [‘aynu-hā] remains to the treasury. [If the assignee bequeaths it as a waqf], his waqf is invalid and its conditions should not be applied; the opposite would have applied had he owned it first and then erected it as waqf” (4:183). Thus the properties that were granted to the upper classes (princes, emirs, bureaucrats, ‘ulamā’, etc.) did not pay the kharāj since that “tax” became their major source of revenue: they did extract it from their peasants, but kept it as their income. However, because these properties were not milk, and hence were not entitled to be bequeathed as waqfs with conditions established for future beneficiaries, they were technically known as having been marūd, that is, “assigned” to the élite groups of society: “the sultan takes out [akhraja] some waqfs from the treasury and allocates them to those who deserve them from the ‘ulamā’, the learned persons [alaba:students], and the like, as an assistance [‘awn] to them based on their rights [aqq] from the treasury” (4:184).36

22The legal fiction of the death of the kharāj-payer thus cleared the way, at least in the Ottoman period, for accepting 1) the massive state land ownership, and 2) a new taxation—or rent?—system, and 3) the way taxes and rents were extracted. At another level, that of the early sixteenth-century qānūnnāme, a concerted effort was also deployed in an attempt to bring the new Ottoman taxation and rent system into “harmony” with classical anafism. But due to the incongruence that marked both systems, and which touched primarily upon the status of landed properties, such an effort came with all the corresponding terminological confusions:

  • 37 Robert Mantran and Jean Sauvaget, Règlements fiscaux ottomans: Les provinces syriennes (Damascus: I (...)

In the liva [of Damascus], the tithe [‘ushr] of certain domains not [associated with the practice of] deimous [that is, fixed taxes in kind or cash] and which had their dues assessed on the basis of their produce, consists of grains, but the tithe on the kharāj [el-‘ürü ‘an-il-harac] is extracted on waqf properties, because we say: “the tithe on the kharāj.” This is why the lands of Syria are for the most part kharāj lands.37

  • 38 Calculations based on the produce become important only in a competitive environment where sales ar (...)

23Such a passage, part of an early sixteenth-century regulation from the imperial center, is typical in its confusing terminology. The confusion stems from the fact that old obsolete anafī notions are used in conjunction with a different historical context. Thus, the postulated hypothesis that the bulk of Syrian lands, back in the sixteenth century, was “kharāj” only makes sense if we assume that the implication here is that they were the “equivalent” to state-owned mīrī lands. The bulk of the kharāj lands, according to the fiction outlined above, which were traditionally owned by non-Muslims, were confiscated by the state, and hence came under the sultan’s guardianship, because their “owners” died without heir. Moreover, the expression “the ‘ushr on the kharāj” only makes sense if we assume beforehand that the “Ottoman kharāj” was nothing but the mīrī, some of which might have already been granted as waqf (which, in turn, became the sultan’s waqf bequeathed to large urban areas for the sake of enhancing the prestige of the ruling dynasty). In short, “the ‘ushr on the kharāj” was therefore nothing but the māl mīrī or the “tax”-cum-“rent” based on the area of cultivation (rather than in proportion to the produce),38 and hence was not a flat land-tax (unlike the original kharāj).

24However, the surprising element in this unfolding drama over property ownership and taxes was more the position of the sixteenth-century Ottoman muftīs in Istanbul than their Arab and “Syrian” counterparts. For one thing, the language of the former was much more explicit and open to changes that occurred in the types of ownership, rent, and taxes: things were named by their new names and the old obsolete language was adapted to the new realities of the Ottoman land-tenure system. For another, the early Ottoman muftīs did not limit themselves to the death of the kharāj-payer, and instead went ahead with their new terminology and fatwās that identified the new phenomena. One such example was that of the muftī Kemalpashazade (d. 1534):

When the Sultan’s agents registered the provinces, they assigned the land as fiefs (iqta‘). The right to settle on and enjoy the usufruct of the fiefs was given to cavalrymen (sipahi) in the form of timar revenue. In these realms, this category of land is called miri. The holder of the fief (timar) is entitled to the right of settlement by letters patent (berat) or license (tezkere). He sells the use of his land to his peasants (re‘aya) and cultivators, taking from them his customary dues and canonical taxes.

  • 39 Quoted in Colin Imber, Ebu’s-su‘ud: The Islamic Legal Tradition (Edinburgh: Edinburgh University Pr (...)

Since neither the fief-holders nor the occupiers own the essence (asl) or the substance (raqaba) of the land, sale, gift, and conversion to trust are not permissible, although lease and loan are.39

25This line of thought has been articulated even more forcefully by the muftī Ebu’s-su‘ud:

The [Ottoman] tithe is not the [canonical] tithe (‘ushr). To call it “tithe” is a gross deception by the common people. Miri is tribute land: it cannot possibly be tithe land. The share that is paid is proportional tribute. It is the cavalryman’s canonical right.

  • 40 Quoted in Imber, Ebu’s-su‘ud, 125.

Tithe lands are the districts [around] the Mighty Ka‘ba. The tithe from there is given to the poor.40

  • 41 Our selection of texts is not limited to uūl and mutūn texts, and considering that the Radd itself (...)

26That kind of clear-cut language was totally absent in the texts of the jurists in Greater Syria throughout Ottoman times.41 If as Ebu’s-su‘ud correctly noted. that identifying the canonical ‘ushr with the Ottoman tithe was plain nonsense and “a gross deception to the common people,” why then did the jurists in the Syrian provinces kept deceiving themselves, and what was the usefulness in keeping up with the obsolete canonical language while identifying new phenomena with words that did not belong to them anymore? Why was an adherence to the past more crucial than an opening to the present?

  • 42 See Chapter 9 infra.
  • 43 Zarqā’, Madkhal, 2:937-8.

27For one thing, a perseverance over the line inaugurated by the Ottoman muftīs would have required more radical steps than hitherto anticipated. In effect, not only major historical phenomena would have to be identified with the right words and concepts, but notions of property, rent, and contract—or, more accurately, the law of property and the law of contract—would have to be re-elaborated while acknowledging the rupture with the past. That would also not have been enough, had the classical notions on contracts and obligations not been questioned accordingly. Finally, and this is the main point, the religious courts played a minor role in lawsuits regarding mīrī lands—that was mostly left to the care of the regional councils. Readapting their doctrine to modern times on matters outside their jurisdiction was therefore simply not worth the effort. Moreover, while legal doctrine remained pretty much anchored in its classical notions, the sharī‘a courts for their part worked their way through the new Ottoman land tenure system by means of procedural fictions, thus attempting to bypass the limitations of the law of contract. In fact, the anafī law of contract, in its elaboration of a large number of contracts (which was also its point of weakness), was much more elaborated and took precedence over the law of property, while procedural fictions were nothing but contractual settlements over property rights (see Chapter 3 supra). Remarkably, then, what should have emerged as a “gap” between anafī legal doctrine, on the one hand, and the practices of the courts, on the other, only led to a wide array of procedural fictions whose role was precisely to keep legal doctrine at bay from any conceptual changes. In the meantime, conflicts relegated to mīrī lands fell within the jurisdiction of the regional councils, thus inaugurating a parallel system of judicial decision-making to the courts.42 anafī scholars thus kept themselves entrenched within their own communities, accepting major changes only reluctantly as maāli mursalah,that is to say, as practices imposed in corrupt times and that were neither prohibited—their prohibition would have endangered the livelihood of common people—nor particularly recommended.43 In the meantime, as already noted in the previous chapter, all practices that were only marginally integrated within anafī practice—that is, without much substantially affecting the law of contract—were so on the basis of their customary nature, even though many were the outcome of an imposed Ottoman land-tenure system. By the 1860s, with the wave of the commercialization of land that swept the Syrian provinces, and the need for new notions of property and contract, the sharī‘a system had already become mostly obsolete and was relegated to personal status matters and the like.

  • 44 See Table 2-2 supra.

28In the texts that follow, therefore, the old categories of ‘ushr and kharāj should not be taken as totally “out of context,” assuming that such an assertion would mean anything here, since the judicial decision-making process of the sharī‘a courts, which developed all kinds of procedural fictions, was still nevertheless operating in conjunction with anafī legal doctrine. In other words, the fictionalnature of many of the procedures was an indication of a legal doctrine unable to bypass some of the already obsolete canonical formulations.44

  • 45 Contrary to many assumptions in contemporary scholarship, see, for example, Th. W. Juynboll, “Kharā (...)

29Since the anafī fiqh that developed in the Syrian provinces (and Egypt too) never fully dropped kharāj as a tax category, and kept dealing with it extensively,45 it could well be that what was really meant by kharājī were timār or mīrī lands, while the ‘ushr, which was originally the tithe imposed on private lands, was translated into a tithe imposed on state-owned domains in general. At times, the existence of all these legal and fiscal categories side by side in the late anafī literature becomes more than confusing:

[When a (private?) land] is irrigated with water [taxed on the basis of] ‘ushr, then it owes ‘ushr dues; and when it is kharāj water, then it should owe kharāj dues, even though many villages and farms nowadays which are waqf pay to the mīrī half, or one-fourth, or one-tenth [of their produce]. ... [From our standpoint,] a land is considered kharājī when its people have not converted to Islam, whether it was conquered by force or not (4:178/9).

30It is worth noting here that—surprisingly—very rarely did Ibn ‘Ābidīn mention the dominant “rent” system of his time—the iltizām-mīrī, and when he does, as in the above passage, he avoids even a minimal elaboration as to what the system meant to anafī practice. The mīrī dues were vaguely referred to, on some occasions, as gharāmāt, while the multazims were the ukkām al-siyāsa, and all this with the insistence that the only legitimate dues were the ‘ushr and kharāj. Theoretically, however, with the kharājhaving become in practice marginalized (except perhaps for its “ideological” value), the mīrī should have been the ‘ushr’s legitimate heir as a “tax” or tithe based on one-tenth of the produce. But the mīrī, like the timār before it, was soon to become much more than the one-tenth of the produce: as Ibn ‘Ābidīn rightly pointed out, it could have been as much as one-half, if not more. In other words, the mīrī was no longer a “tax” on the produce but looked more like a “rent,” while the peasants, forced into corvée labor, were paying their dues to the state in exchange for their “rights for using the lands.” And with the “intermediary” person of the multazim who imposed himself between the farmer and the state, who owned the land de facto, the iltizām system was transformed into a system for collecting “rents” rather than “taxes.”

31This is why Ibn ‘Ābidīn’s text seems to be faltering and desperately ambiguous most of the time, in particular when describing the land-tenure system of his time. Remarkably, there was a realization on his part—and this was already established in the anafī literature of the Ottoman period—that what the state was extracting from its own domains was no longer the classical “taxes” of ‘ushrand kharāj, but more likely a “rent” (ujra) (the designations of “tax” and “rent” pose more problems than they solve, and we need to keep in mind that they represent modern connotations, from the eighteenth century and later—as part of a Western political economy discourse—with meanings different from the ones we have assigned to them thus far):

  • 46 That is, the māl mīrī in the official Ottoman terminology.
  • 47 This should have in principle included the ‘ushr also; but, considering that most conquered lands w (...)
  • 48 The notion of mu‘add li-l-istighlāl or li-l-ījār implies that the proprietor has given up on the ‘a (...)
  • 49 What about lands which were ‘ushr and which were purchased or transferred or inherited? Why did Ibn (...)

[The lands of Egypt and Syria] pay an ujra46 rather than the kharāj.47 ... The imām leases [a state-owned mīrī land] and delivers all its rent to the treasury, like a home which has become the property of the treasury, and which the sultan has decided to exploit [istighlāl].48 And if he decides to sell [a land], he can do so either without restriction [mulaq: absolute] or else for a particular need [āja]. It has thus been established that the selling of the Egyptian and Syrian lands is absolutely valid [ṣḥī mulaq-an] either from their owners [mālik] or from the sultan. If a land was sold from its proprietor, it would then have been transferred with its kharāj dues [meaning that the one who purchased it would have to pay the kharāj],49 and if the sultan was the one who sold it, this would have been either because its owner was incapable of cultivating it or because he died [without heir]. We have already argued that it becomes the treasury’s property and is no longer subject to the kharāj. Thus, once the imām sells it, the buyer, whether he transforms it into a waqf or keeps it as such, should not pay the kharāj.

  • 50 That is, the arāī amīriyya,often shortened to mīrī in the official Ottoman documents, including th (...)
  • 51 It is not clear what the historical or linguistic origins of the term are: the root of could well (...)
  • 52 This distinction goes back to Abū Yūsuf in Kitāb al-kharāj.
  • 53 The kirā’ is the tenant’s rent, or the pay (salary) of a hired person.
  • 54 The assumption here is that all leased lands were mīrī. Once their ujra was paid by the tenant-farm (...)

I argued that [this kind of land] is of a third kind,50 referred to as arāī al-mamlaka wa arāī al-awz,51 since it is neither ‘ushrī nor kharājī. [This special category includes the lands of all] those who died without heir and went to the treasury or were conquered by force. [There is a general consensus] that the imām [could exploit the land] in two ways. Either by placing the farmers [zurrā‘] in lieu of the owners [maqām al-mallāk] to cultivate and pay the kharāj, or in giving it to them as a lease for an amount equal to the kharāj. [In both cases,] the imām would have extracted the kharāj, and when [the amount paid] is in cash [darāhim], it is kharāj muwaẓẓaf, and when it is part of the produce [that is, in kind], then it is kharāj muqāsama [partnership].52 But concerning the right of leasing [aqq al-ikrā’],53 it should consist of a rent [ujra] and nothing more with no ‘ushr and no kharāj.54 So when there is an indication [dalīl] that the two taxes [mu’nat-ayn] of ‘ushr and kharāj are not necessary [‘adam luzūm] in arāī al-mamlaka wa-l-awz, only a rent should be imposed (4:179).

32The above passage, which accepts once more the legal fiction of the state’s “legitimate” claim over mīrī lands, comes close into looking at the Ottoman land-tenure system in terms of its most fundamental reality: that it was indeed more of a rent-control system rather than of a taxation on the produce. Once kharājī-proprietors died without an heir, their lands became the state’s property. Following that legal fiction, three different methods for farming out “mīrī” lands were possible: either treat the farmers as “landowners” and extract the kharāj—that is, mīrī—from them, or have them assume the role of sharecroppers, or else give them a lease equivalent to the kharāj. In the first two cases, since the kharāj was extracted afterthe production cycle was completed, it was perceived either in cash or kind, depending on prior arrangements between the farmers and the state authorities (or their intermediaries, the multazims), while in the third case, the state behaved more as a true landowner, leased the land, and was paid a rent for doing so. Ibn ‘Ābidīn did insist that no “tax” should be imposed in addition to the “rent” since it made no sense that the same agency—the state—perceived both rent and tax. We thus end up with three possibilities:

Table 4-1: Old taxation system

  

Status of the peasantry

Paid dues

Method of payment (to the treasury)

1

The peasants would act as if they “owned” the land and would thus have to pay the state a specific tax.

kharāj muwaẓẓaf,a “tax” paid in cash, sort of direct land-tax.

kharāj in cash, that is, a fixed sum of money whose amount depended on the size and quality of the land (but not on the produce).

2

The peasants would act as sharecroppers, paying as “tax” a fixed percentage of the crop in kind.

kharāj muqāsama, a “tax” paid in kind. Close in some respects to the Ottoman māl mīrī.

kharāj-in-kind, based on the yield, between one-fifth and one-sixth of the produce; and, in this respect, looks more like the ‘ushr (which in principle was no more than one-tenth) than a land-tax.

3

The peasants would act as the state’s tenants.

an ujra equivalent in effect to the kharāj,but no additional taxes. Closest of the three to the Ottoman māl mīrī “rent” system.

Rent (cash or kind? or a combination of both?).

Commentary: The classical system of taxation, which supposedly had consolidated in the first two centuries of ‘Abbāsid rule (as epitomized in Abū Yūsuf’s Kitāb al-kharāj), and which probably began to deteriorate with the Būyids takeover of Baghdād in 945, was a system—at least compared to the ones to follow—that heavily relied more on a central bureaucracy and less on the usual intermediary figures of elders, notables, tax-farmers and rural landowners (which in some instances consolidated into quasi-castes). Those social conditions allegedly enabled the state to tax its peasantry more “fairly”—without the abuse of intermediary figures—while avoiding corvées and keeping an eye on the production cycle of the lands that were confiscated from the previous (mostly Christian) landowners (particularly in the Sawād). However, beginning with the weakening of the ‘Abbāsids in 945, if not before, and the excessive militarization and fragmentation of the central authority that will follow, beginning with the Būyids, Seljūqs, Mongols, and up to the Mamlūks and Ottomans, the power of the intermediaries will gradually increase in the form of a‘yān and amīrs. The peasantry will thus find itself in the awkward position of producing more while keeping less.

  • 55 Ibn Nujaym, Rasā’il, 62.

33Of all three models, only the third comes close to the Ottoman māl mīrīsystem, even though Ibn ‘Ābidīn seems in favor of the kharāj muqāsama model, which on its own confuses more than it enlightens. In fact, the kharāj muqāsama was, in the words of Ibn Nujaym, “between one-sixth and the fifth [of the produce, and, in this respect,] is like the ‘ushr because it requires actual cultivation [al-zirā‘a aqīqat-an], and it is not enough that it could be simply afforded [lā yakfī al-tamakkun li-wujūbi-hi].”55 In other words, unlike the kharāj muwaẓẓaf,which was limited to a fixed sum of money whose amount varied with the size and quality of the land, the kharāj muqāsama was tied to a fraction of the produce; and unless the land was effectively cultivated, an assessment of that kind would have been impossible. In this respect—and in this respect only—the kharāj muqāsama was probably the closest “tax” of the Ottoman māl mīrīsystem. But even that kind of comparison, adopted by Ibn ‘Ābidīn and other jurists, has its own problems. For one thing, the māl mīrī, which at times was equivalent to over half of the produce, could hardly be looked upon as a “tax.”

  • 56 Even though that was explicitly stated as such in Abū Yūsuf’s Kitāb al-kharāj, the notions of milk (...)

34Moreover, Ibn ‘Ābidīn’s discourse leaves out the most critical problem faced by the anafī jurists of the Empire: namely, that transferring the notion of kharāj (or ‘ushr for that matter) to state-owned lands undermined the credibility of some of the most profound legal concepts of the early anafī literature—the fact that such lands were in principle “privately”owned by individuals who could rent, sell, transfer, and inherit them.56 Furthermore, Ibn ‘Ābidīn’s discourse, having understated that major conflict in the early literature, described very inadequately what was going on in the land-tenure system of the Empire and deliberately omitted its terminology. In the early timār system, state-owned lands were granted to sipāhis and the peasants were for the most part under corvée. What the sipāhi was in reality extracting was not a “tax” equivalent, which in one way or another would have formed the equivalent to the old kharāj/‘ushr dues, but a full “rent” generally consisting of as much of the yield as possible. When by the seventeenth century, the iltizām became the dominant system for farming out state domains, the multazim assumed the civil role of the sipāhi but still played the same basic role: that of extracting as much “rent” as possible from the peasantry. In fact, in both systems, the “rent” was usually perceived in kind—what the anafī texts referred to under the euphemism of kharāj muqāsama, even though it was not strictly speaking a land-tax anymore and unrelated to the kharāj per se—and commonly referred to as the māl mīrī.Chances were that lands that did not fit under the mīrī were usually waqf. But even though waqfs were originally privately owned properties, their mutawallīs could not lease them with competitive ujras because that was not accepted practice. Instead, like mīrī lands, they had to be farmed out to individual multazims who followed the same procedures as for mīrī lands in general, thus considerably reducing the waqf’s cash flow.

35Furthermore, the general decline in the value of rents, already encountered in Chapter 3, and which seems to have lasted for at least two centuries, must be linked, for analytic purposes, with all the lump sums and “unnamed contracts”—or more adequately the “real rent”—which each new tenant had to worry about in order to have access to all those “tenancy privileges,” all of which instituted special “status contracts.” The latter acted like barriers that only those who could have afforded the preliminary lump-sum payments were able to overcome. Overall the non-competitive nature of the hire market only contributed in lowering the value of rent and the flourishing of an endless array of special privilege contracts.

  • 57 See in this respect the severe criticisms against judges, multazims, and waqf administrators alread (...)

36Ibn ‘Ābidīn’s own attitude was only meant to be congruent with his school irrespective of the realities on the ground: 1) He had to link all the Ottoman fiscal notions, while seldom referring to them directly by their names, with the canon; 2) for the Ottoman period, he very rarely named things by their name (mīrī, iltizām, multazim, etc.), and when he did so on a few rare occasions, the corresponding notions or phenomena were not clearly articulated in any way that would prove valuable; finally, 3) the system as a whole is severely criticized,57 while, on the other hand, it is de facto provided with its own legitimate legal foundations (for example, on the fiction of the death of the kharāj-payer). On both grounds, however, he follows the tradition, mainly in its attempts to keep itself autonomous from political power and the household of the sultan.

  • 58 Or the kharāj muqāsama; or the ujra—the māl mīrī in Ottoman official documents.

37This is even more obvious in the specifics of Ibn ‘Ābidīn’s text, which probably needs to be read at two levels, one where a manifest attempt was made to interpret current land practices with the eyes of the old anafī masters, and a second level where the preliminary outcome of the first reading needs to be challenged with outside evidence—other discursive levels—on the empirical realities of the land tenure system. Consider, for example, the status of farmers (zurrā‘) and the type of payments they should have been subjected to. Ibn ‘Ābidīn maintains that “the farmers have nothing to pay in terms of ‘ushrand kharāj” (4:179): the assumption here was either that such “taxes” were to be paid by the landowners, or else that the farmers were already under a kharāj muqāsama contract, thus paying part of their produce for their right of using the land, and were thus under no obligation to pay extra taxes in addition to the regular ujra. But, he then adds, that “what is here extracted is not a rent strictly speaking [al-ma’khūdh laysa ujra min kul wajh] because that is only the legal kharāj58 of the imām; and a ‘ushrcannot be added to a kharāj ...” (4:179). The “legal kharāj” is to be taken here in the strict sense of a portion of the produce that the peasantry transferred to the sultan’s treasury—or what the early Ottomans referred to as the çift-hane, a system of “household” production where “taxes” were not collected by intermediaries. So what the farmers were paying to the treasury was an ujra (“rent” for using a land they did not own) equivalent to a kharāj muqāsama.But Ibn ‘Ābidīn’s insistence in keeping the old terminology of his predecessors only confuses the issue since what the state was extracting from its peasants was much more than a land-tax or a tax estimated on the basis of the volume of the produce—indeed, it was a full rent. Having forced himself to think in terms of classical doctrine, Ibn ‘Ābidīn still perceived the kharāj and ‘ushr as dues on the landowners, so when the state poses itself as the sole proprietor, such “taxes” ceased to exist—at least in their old connotations—and what was thus extracted from the peasants was a “quasi-rent” “equivalent” to a kharāj muqāsama:

It was said in the Is‘āf [fī akām al-awqāf] that when the mutawallī [of a waqf] gives the land as a sharecropping contract [muzāra‘a], then the kharāj and ‘ushr are [paid] from the revenues of the waqf’s beneficiaries [ḥṣṣat ahl al-waqf] because [the association] is a full rent [ijārat ma‘na]. Similarly, I think that when a land belongs to the treasury, and is given in [a sharecropping] association to the farmers, what is extracted from them is a rent equivalent [badal ijāra] rather than the kharāj (4:179).

38Again, another confusing passage. As our previously examined sharecropping cases show (C 3-11 & 3-12), contractual settlements through procedural fictions were free of the jargon of the ‘ushr and kharāj altogether. There was, to begin with, a regular low rent, to which one percent of the produce was added as a readjustment in kind. It is unfortunate, however, to compare that kind of a situation to one where peasants were working on mīrī lands and were paying either part of their produce as ujra, or else had a “rent” extracted by intermediaries. In effect, it is a long a stretch of the imagination to perceive either the old kharāj muqāsama or the mīrī dues as “sharecropping” situations. To begin with, what was extracted exceeded by far the normally “shared” produce in most sharecropping contracts. Second, the majority of peasants were only nominally “tenants” and had to produce excessively to meet demand.

39Our faqīh then comments later that when in a muzāra‘a contact between state and peasants, in which one-fourth to one-third of the produce was extracted as a “rent equivalent,” such contracts were “invalid because of the ignorance [of those involved]” (ibid.). Since the kharāj was prohibited by law on lands whose landowners died without heir and which became state property, what was then collected in a “sharecropping contract” was a “semblance of a rent rather than a true one [ma‘na al-ijāra lā ijāra aqīqa]” (4:180). Again, the real issue here is whether it is appropriate to describe the “contracts,” assuming there were any, between the state and the peasantry as ones of “sharecropping” when even one-third of the produce seems an optimistic requirement at best. Sharecropping should by all means be looked upon as “private” contracts only, and usually limited to waqfs as a way to readjust the rent. When privately owned lands were leased on the basis of a share of the produce, those used to be on an association of one-fourth of the latter, a contract better known as murāba‘a.

Keeping one’s hand over a property

  • 59 In his “book of judging,” Ibn ‘Ābidīn acknowledges the unusual spread of fictitious litigations at (...)

40Because the mīrī was state owned and “assigned” to farmers and multazims for exploitation, some of them became the de factoowners. When studying court records—particularly those of the nineteenth century, a period of increasing land commercialization—one suspects that such conversions, from one type of property to another, became routinized through procedural fictions: 1) the combination of such legal notions as wa‘ yad(“occupation”) and taarruf(“usufruct”), which enabled farmers, multazims, and muqāa‘jī families working on public lands (or hiring laborers to do the work for them) to later claim in court the title of full “ownership” through simulated contractual settlements; 2) a settlement over the administration of a waqf de facto implied the recognition of the status of all its properties, even though there seldom was any “hard evidence” that the latter were “originally” privately owned (see Chapter 6 infra); and 3) the anafī notion of “occupation” (wa‘ yad) made the process of property conversion, from one status to another, even more versatile. since it managed to bypass all “original” claims of ownership to the property.59

41Ibn ‘Ābidīn thus maintains that lands known as arāī al-mamlaka, whenever in the “hands of their farmers, should not be taken from them as long as they were paying their dues” (4:180). Even though such lands were neither inheritable nor purchasable, one would expect them to be transferable from father to son; otherwise, the property would go back to the treasury since a daughter’s or a paternal uncle’s right only produced “illegal contracts [ijāra fāsida]” (4:180). Furthermore, if a “person using the land [mutaarrif]” made a “bad use [‘aṭṭala-hā]” of it, it should be withdrawn from him and granted to someone else.

42What was then the status of the peasantry? It seems that most of them did not even own their lands, worked under corvée, and paid the bulk of their produce as “rent” to the state—that is, the māl mīrī, or what the juristic discourse euphemistically referred to as kharāj muqāsama, or even more confusingly as a quasi-“sharecropping” arrangement. A privileged class of peasants, however, either “owned”—depending on how we understand “ownership”—its lands or else managed a special well-categorized status (e.g., shaddād, murābi‘):

  • 60 That is the kharāj muqāsama, ujra, māl mīrī.

The peasants’s non-ownership of land is unknown to us in the Syrian lands [al-arāī al-Shāmiyya] except in the villages and farms which are either waqf or are known to belong to the treasury. As far as the other [lands] are concerned, we see them being inherited, and sold from one generation to the other. [In the section] on preemption [shuf‘a] in [Ramlī’s] Fatāwā Khayriyya, a question was raised concerning brothers who had lands with plantations, and a man who also had a planted land close by, all sharing the same road: If the man sells his land, so do the [brothers] enjoy [the right] to take it by preemption [akhdhu-hā bi-l-shuf‘a] even though it was a kharājī [land]? And he replied: yes, they have the right to take it [buy it?] by preemption, even though it was a kharājī [land] because the kharāj is not in contradiction with milk [al-kharāj lā yunāfī al-milk]. [It was thus mentioned] in the Tatrākhāniyyaand many of our school’s books that the land [paying the] kharāj is [privately] owned [by individuals,] and so is ‘ushrī land. They could be sold, turned into waqf, and be inherited like any other property; so preemption applies to it [tuthbatu fīhā al-shuf‘a]. As to the lands that became the property of the sultan and his treasury, and were assigned to individuals through [a contract of] sharecropping [yadfa‘u-hā li-l-nās muzāra‘at-an], these are not sold and the right of preemption does not apply to them. Thus, if a person occupies [i‘ al-yad] a [mīrī] land, claims that it is his property, and that he purchased it, or inherited it, or anything else that would prove that it was milk, and that he is paying its kharāj,60 he must furnish evidence for such a claim. I mentioned this because [such incidents] occur frequently in our country [balad] ... (4:180).

43The above passage finally bypasses all confusions:

  1. Kharāj and ‘ushr lands imply full ownership (milk) in Ottoman times.

  2. Those lands could be sold, transferred and inherited, bequeathed as waqf, or subject to preemption (shuf‘a).

  3. Their taxes, referred to in the classical literature as ‘ushr and kharāj, should be more appropriately identified as māl mīrī.

  4. In the case of state-owned mīrī domains, the māl mīrī acts as the de facto “rent.” The value of mīrī for both milk and waqf remains, however, uncertain.

  5. “Sharecropping” as muzāra‘a is interchangeably used with kharāj muqāsama in the classical anafī texts, even though Ottoman sharecropping is of a different nature altogether (C 3-11 & 3-12 supra). In the final analysis, the kharāj muqāsama is nothing but the Ottoman māl mīrī.

44As we shall see later, claims for evidence of “ownership” will eventually soften: “occupation (wa‘ yad)” of a territory turns out to be enough evidence per se to establish “ownership.” In fact, and, in principle, a legal “possession” of a territory requires evidence at two levels: first, that the “occupation” of the territory was not an act of usurpation (ghab); in that case, the territory would be claimed by someone else; second, proof of “ownership” must also be presented, in particular if two or more have valid claims over the same territory. Land “ownership” might therefore require both types of evidence, unless “occupying” a land and cultivating it represent in and of themselves enough evidence. That proves to be a crucial issue because occupation-as-evidence is much softer than a full proof of ownership. In fact, even though in practice and in both cases, evidence invariably meant bringing two witnesses to court (written documents were seldom used), it was much easier presenting evidence for rights of occupation and possession: that came as an outcome of the ambiguous status of all mīrī lands possessed by individuals and families over long generational lines, but kept all along without clear ownership rights.

  • 61 See Chapters 3, 5 & 6.
  • 62 I consider “occupation” much weaker than “possession” in terms of granting property rights and the (...)
  • 63 “An important request concerning the fact that ‘ushrī- or kharājī-lands, unlike state-owned lands, (...)

45Considering that many of the cases that we shall examine in the coming chapters dealt with suspicious property transfers between family members (Chapter 5 & 6 infra), the question is whether checking how many were “genuine” transfers, or purchases, or inheritances from a deceased member of the family is feasible. Indeed, what we will be looking at is whether such procedural fictions were simply safe, and thus routinized devices to safeguard property rights between family members, or else reflect a more radical phenomenon, namely the possibility of a change of status, say, from mīrī to milk or waqf. In short, we are looking either at the possibility of straightforward conveyances that were transferred through procedural fictions, or else at a status modification. Such a task, however, proves quite difficult, and all what one could hope for is to present “enough” arguments that would at least eliminate some weak or false alternatives. In both cases, however, the real culprit is the absence of a well defined law of property to the point that the sharī‘a courts had to use the much more robust law of contract in all its variations61 in order to grant the disputants their property rights. In fact, when it came to Ibn ‘Ābidīn’s own tortuous formulations, he seems to be pointing towards conflicts involving the right of possession and preemption of public lands, which might have been numerous considering that many of the disputants “occupied”62 such lands and cultivated them over long periods of time, paid their dues to the state, and at some point felt that this was enough to declare the property as theirs.63 Such legal actions, however, only became possible thanks to the confusing status of rural lands in general. The fact that many state-owned properties had their taarruf or iltizām rights transferred from one generation to another made them seem as if they were privately owned. What Ibn ‘Ābidīn left unclarified, however, was that the social actors, in conjunction with the sharī‘a court system, created several procedural fictions that made possible the establishment of many properties as privately owned. There was, indeed, a classical form for such lawsuits which only their repetitive nature makes their discovery possible. The two parties involved in the “litigation” were quite often from the same (restricted) family or clan, and “close” enough to each other: husband-wife, daughter-mother, father-son, brothers and sisters, were all common associations for such alleged disputes. Then, in a typical gesture characteristic of such cases, the plaintiff would make the claim that the defendant was enjoying an illegal “occupation” of his or her property. The defendant would then respond that she did in fact “purchase” the property from the plaintiff for a “known sum” which usually remained unspecified, and, instead of presenting the legal documents in proof of the transaction, the defendant would then bring two witnesses to court confirming the transaction. Thus, the defendant and his or her family (including, in some cases, the plaintiff), might end up with a property, which they proved was theirs through a process of litigation, which might have originally been state-owned or waqf.

Some of the well formulated notions originate in the basic rules of the fiqh [al-qawā‘id al-fiqhi] such as having one’s hand over [wa‘ yad: occupation] and the use [taarruf] [of a land]: these are among the strongest signs of property ownership [aqwa mā yustadallu bihī ‘ala al-milk], so, [in this case,] witnessing would be a valid [evidence] to establish that the property is [the ownership of a person]. Abū Yūsuf stated in his Kitāb al-kharāj that when a group of people [paying the] kharāj died during wartime, and no one was left, and their land remained without any use [mu‘aṭṭala], without anyone knowing to whom it belongs, and with no litigation in process, and then a man comes and cultivates it and plants it, pays the kharāj or the ‘ushr, it thus belongs to him [hiya la-hu] [since] that was a dead land [mawāt]. And the imām has no right to take something from one’s hand unless it is accompanied with a known and acceptable right. We have also stated, [based on Abū Yūsuf,] that the lands of Iraq, Syria, and Egypt, became kharāj by force [‘unwiyya kharājiyya] and were left over to the people who were vanquished. ... So, if these lands were the property of their own people [mamlūka li-ahli-hā], how serious then is the claim that it became the [property of] the treasury, with the possibility [itimāl] that all those people died without heir [?]. Such a possibility does not cancel [yanfī] the right of property that was firmly established [al-milk al-ladhī kāna thābit-an]. ... Imām as-Subkī said that the fact is that Syria and Egypt are in the hands of the Muslims; no doubt they have [their lands] either as waqf ..., or milk, and the properties whose origin is unknown [become property of] the treasury. So if someone possesses [a property] and he is not aware from where it came from, the property remains his [yabqa fī yadi-hi] and he does not need evidence [of ownership] [bayyina]. And [as-Subkī] added that when we find a property in the hands of someone which could be his milk, it is possible that he brought it to life [aya] or that it was legally transferred to him [waala ilayhī wuūl-an aī-an] (4:180‑1).

  • 64 Similar perhaps to a principle known, in American common law, as “adverse possession,” a rough equi (...)

46Such passages are among the strongest, within the anafī literature, not simply drafted in defense of possession and private property, but also as a direct attack on a system that transferred many private properties to the treasury “illegally.” Thus, the legal fiction of “the death of the kharāj-payer without heir” is here pushed to its ultimate limits since the state’s ownership is not yet fully acknowledged. More important, and for the purpose of understanding the procedural fictions of the sharī‘a courts, the text legitimizes the wa‘ yad(“occupation”) notion as enough evidence by itself in establishing ownership, or, more precisely, it provides the right to “own” a property which was “possessed” as a combination of wa‘ yadand taarruf.64 Thus, parallel to the legal fiction of the “death of the owner,” another fiction was established: those who worked on lands left over by their original owners and never claimed by anyone; such lands were similar in status to the mawāt,but in many cases mīrī and assigned to multazims or farmers, and should become the full property of those who “revived” them. From a legal point of view, those claims eliminate two impositions upon the new “owners”: 1) they do not need to show how their property was transferred to them, since as long as they revived a property and were working on a land that no one else claimed, that was enough evidence in itself; and 2) there was no need for formal evidence of ownership either—occupation of the property might be an indication of ownership by itself.

Based on Subkī, Ibn ajar Mulkī said in his Fatāwā fiqhiyya that we openly rule in favor of land and waqf owners to maintain their ownership. Indeed, we are not offended by the fact that these lands were originally [al] the property of the treasury, or a waqf for the Muslims, because we looked upon each land case with its own specificity [bi-khuūihā], and when it turned out that it was neither waqf nor milk, the other possibility was that it was mawāt and brought to life again [uyiyat]. And even if it turned out that it belonged [originally] to the treasury, a hand’s permanence upon it [istimrār al-yad ‘alayhā], and its use with the status of a landlord [al-taarruf fihā taarruf al-mullāk], or that of an administrator [with a waqf], all constitute visible evidence [qarā’in āhira], over long periods of time, for not interfering with [those who own these properties] and thus avoid confiscating them [intizā‘] (4:181).

47Without much hesitation or ambiguity, the above passage claims that all lands “occupied” by individuals who have been cultivating and planting them for long periods of time, and whose status became that of de facto “owners,” also enjoyed all rights of legal ownership. In fact, what some passages allude to is that a category of “possessed” properties were considered as milk—that is, privately owned, even if it turned out that they were “originally” the property of the treasury. However, the fiqh texts stopped short at explaining how those de facto “owned” properties should become legally owned: Which legal and bureaucratic procedures should be followed? Were they to be considered, by the state authorities, as legally or de facto milk? Could a property undergo a change of status through court procedures?

48What is of interest to us here—from the point of view of judicial decision-making—is that anafism only laid the groundwork for an acknowledgment of an individual’s right over a property he has “taken care of” for a prolonged period, which in principle should accord him full property rights whatever the original status of that property. anafī practice thus did not establish howan individual should proceed in order to prove that the property was his or hers, but only that an established “right” does exist. Alarmed by the abuses of rulers, their followers, representatives, and the various state officials who had been either claiming the lands of others, or else extracting from the peasantry much more than what they ought to, the jurists strongly sided with the de facto landowners and their farmers:

  • 65 That is, the kharāj muqāsama, or māl mīrīin the official Ottoman texts (sharī‘a courts and majālis)
  • 66 This is a direct reference to the old sixteenth-century tax-farming system; but as with the mīrī, w (...)
  • 67 In Turkish: zeamet: large fief.
  • 68 A common term in the majālis records (dhakhāyir), seeming to refer to what was often demanded by th (...)
  • 69 More commonly known as sipāhis.
  • 70 A lump-sum-rent similar to the maqū‘:in those cases, the mīrī was not estimated on the basis of a (...)

What is extracted from the Syrian lands is the kharāj muqāsama, and we wrote that what goes to the treasury is a rent [ujra] equal to the kharāj:65 what the imām is thus legally extracting is the kharāj, and where this has been applied, it establishes a criteria [for what the farmers should pay] [tu‘tabar fīhi al-āqa]. And it should be known that what the people [ahl] of the timār66 and za‘āmāt67 are doing in requesting the villagers to give them what the sultan has assigned to them, such as half of the produce and the like, is pure injustice. The reason is that what has been allocated [mu‘ayyan] in the sultanic registers was based on the fact that only these amounts should have been collected from the farmers who [are entitled to] keep the rest [of their produce][al-fāil]. But the reality in our time is contrary to this since what is unjustly collected from them now, known as the dhakhā’ir68 and the like, is too much, even equal in some lands to the entire produce [khārij]. This is extracted from them even when the land does not produce anything, and we have seen some timāriots69 giving up their land to someone else because it was overburdened with injustice [], and for this reason their request for dividing [the produce] [qasam]70 is an act of injustice upon an injustice, and injustice should be done away with [i‘dām]. It is therefore illegal to help the timāriots in their injustice, and lands should be looked upon only in terms of what they could afford, as Khayr [al-Dīn] al-Ramlī already stated (4:188-9).

49It is quite possible that Ibn ‘Ābidīn kept the old terminology of timār and za‘āma—both practically extinct by the late eighteenth century—in order to conform to Ramlī’s text. Other than that, his message was quite clear as to its purpose: the farmers should only pay the “equivalent” of the kharāj. He had already stated on previous occasions (4:188), and also based on Ramlī, that the Syrian lands belonging to the treasury were under a general contract of a kharāj muqāsama, which he also referred to as an “equivalent to a rent [badal ujra]” because the farmers were paying their “landlord,” the state, a specific “rent” in kind—usually equal to one-tenth, one-fourth, or half of the produce—for their right to exploit the land: “What is extracted nowadays from the lands of Egypt and Syria is a rent [ujra] rather than a ‘ushr or a kharāj, and this, on lands which have become the property of the treasury, excluding all milk and waqf lands. But such a rent is [in principle] an equivalent to the kharāj [al-ujra badal al-kharāj]” (4:186); but, privately owned lands and waqfs “were paying the kharāj rather than a rent” (4:182). On the other hand, “when one has a property in his hand [“occupation”], he then owns it [man fī yadi-hi shay’ fa-huwa milki-hi]” (4:181). Moreover, “there was a consensus among the ‘ulamā’ not to request for a written document [mustanad] [as proof of milk], considering that the visible hand [al-yad al-āhir] [over the property is all by itself enough evidence] that it was legitimately placed [wui‘at bi-aqq] where it belongs” (4:181). In short, what all this amounts to is the following: 1) the “rent” extracted in Ottoman times over mīrī lands was in principle an “equivalent” to the old kharāj muqāsama; 2) in many cases, however, there was a common phenomenon of “rent abuse”: the state’s agents and intermediaries extracted more than what they were allowed to; and 3) land “occupation” could be an indication of full ownership to the point that no formal documents establishing past ownership were necessarily needed as evidence.

Table ‎4-2:The gap between the language of the fiqh and the sharī‘a courts

  • 71 Ibn ‘Ābidīn, Radd, 4:188-89, see below.

Category

Fiqh

Courts and majālis

State owned lands

commonly referred to in the anafī literature as arāī al-mamlaka wa-l-awz;sometimes also as arāī sulāniyya, or arāī bayt al-māl.

arāī amīriyya, or mīrī (timār in the older system).

Privately owned lands

arāī kharājiyya or arāī ‘ushriyya; or milk.

milk

“rent”

ujra; or kharāj muqāsama (up to one-fifth of the produce).
ujra or ijāra, usually for privately leased properties, or more generally, for hire contracts, including labor.

māl mīrī, amwāl amīriyya, or mīrī; also: ‘ala jānib al-mīrī; in this respect, the ‘ushr, usually named in its plural form as a‘shār or ta‘shīrāt, and used interchangeably with the mīrī, was more of a “rent” than a “tax,” and assessed as a percentage of the produce.
maqū‘ and qasam: lump-sum-rents.

 “tax”

kharāj or ‘ushr; kharāj muwaẓẓaf; sometimes referred to as gharāmāt.

aghnām, dhakhā’ir,71 mubāya‘a, etc.: all of which imposed as additional taxes at the margin of the mīrī.
virghu: a land-tax estimated on the basis of the land’s value.

tax-farmers

ukkām al-siyāsa; timāriots (used anachronistically with the iltizām system).

multazims (timāriots in the old system).

Commentary: The Ottoman anafī jurists in the Fertile Crescent have for the most part kept the old taxation terminology active, while providing very little in terms of an understanding of the specificities of the Ottoman system. There is thus a visible “gap” between the language of the parochial fiqh manuals and the sharī‘a courts and other bureaucratic documents. Between the fiqh that ignored it, and the qānūn which was limited to regulations, the Ottoman taxation system was strangely left without any proper conceptualization. My argument is that anafī practice was looked upon as a “special community law,” and as such was mostly the domain of private litigations in which the state was not a party. By contrast, taxation problems and disputes related to mīrī lands were relegated to other judicial authorities such as the regional councils. anafī practice was thus left within its own domain and did not have to modernize its language relative to the period in question.

Rebutting a case

  • 72 The Majalla devoted a chapter to the notion of daf‘ al-da‘wa: see, Salīm Rustum Bāz, Shar al-Majal (...)

50The land question, and the wa‘ yadpractice in particular, reappear in bits and pieces all over the Radd, without any attempt, however, towards a systematization that would have provided a coherent law of property, or even clarified at a minimal level the essence of the mīrī-iltizām system, and its predecessor for that matter. For that reason, property transactions, transfers, and conveyances, often appear in court registers as contractual settlements through procedural fictions. In other words, it was the law of contract that made possible for the most part either property transactions or the change of status of landed properties. The question of the thin line between ownership, possession, and occupation, and over which many of the court cases hover, reappears, among others, in the seventh volume of the Radd, completed by the author’s son, Muammad ‘Alā’ al-Dīn, under the title of Qurrat ‘uyūn al-akhbār. In the “lawsuit book,” Kitāb al-da‘wa, the link between lawsuit and “litigation [khuūma]” is posed on the basis that “a litigation is legally the lawsuit and the reply to it” (Qurrat, 7:398). The judge uses the term “plaintiff [mudda‘ī]” when no evidence has yet been furnished; and the plaintiff ceases to be so, and becomes a “rightful person [muiqq],” once enough evidence has been furnished in his or her favor. It is indeed the defendant’s duty, in this interim period, to prepare his rebuttal and present “counter-arguments for the case [daf‘ al-da‘wa]” (7:399).72 The notion of daf‘ (literally: pushing back or away) is usually associated with the defendant (al-mudda‘ī ‘aly-hi) since obviously he is the one to plead against and challenge the allegations of the plaintiff. More specifically, concerning land litigations, what plaintiffs usually plead for is a daf‘ al-ta‘arru on the part of the defendant whom they accuse of illegally “having his or her hands” over their properties: “when two persons make the claim that the same land is theirs [al-ar fī yadi-hi], and one of them proves that he is right, he is then pressing a claim for stopping the trespassing of the other [mudda‘i-yan daf‘ ta‘arru al-ākhar], thus furnishing evidence [athbata bi-l-bayyina] that it is indeed his own land, and since evidence is only accepted in a valid lawsuit [iḥḥat al-da‘wa], we know that the validity [in question] is a daf‘ al-ta‘arru” (7:399). The procedure of daf‘ al-ta‘arru complements that of the wa‘ yadencountered earlier in conjunction with properties whose status was either not very clear or which might have belonged to the treasury: thus, “having one’s hand over the property,” working on it, and cultivating it, was “enough evidence” that the “possessor” or occupant was also the “legal proprietor.” Interestingly, even though establishing that a property “belonged” to X implied that X had to sue Y for “trespassing [ta‘arru]” over his or her property, and the plaintiff had to furnish evidence that the property was “in his hand,” in fictitious litigations, however, things simply happened the other way round: Y would sue X for usurpation, and X (the defendant) would “win” the case (Chapter 5 infra). Thus, occupation and usurpation were necessary prerequisites for establishing one’s ownership over a property. The plaintiff would then make the claim “that this person has illegally intruded over this and that [that belongs to me], and I therefore ask him or her to stop the intrusion. The judge would then forbid him or her to intrude illegally over the other” (7:399). But if “conflict and intrusion are close to each other [al-nizā‘ wa-l-ta‘arru mutaqāribān]” (ibid.), what however distinguishes them from one another is that “intrusion” is something done “without right [bi-ghayr aqq] and even with the purpose of damaging [mujarrad adhya], while conflict [nizā‘] is based on a [semblance of a] document that was thought to exist [mustanad yutawahham wujūda-hu]: the difference is thus clear” (ibid.). In more concrete terms, both intrusion and conflict operate within the notion of litigation as a necessary component of the process that brings a lawsuit into existence, and a final ruling too: the plaintiff is the one who initiates the litigation, while the defendant has to plea against the charges. Within that legal framework, intrusion usually implies no more than an “occupation,” wa‘ yad:“this person claims that this land is in my hand and this is the evidence supporting my claim; and another person claims that it is his and in his hand, without presenting any evidence. [The first person then requests that] I don’t want him to intrude on my property anymore because I proved that I have a hand [dhū yad] and he didn’t” (7:400). Starting from this basic definition of litigation, the courts will have to invent several procedural techniques on their own to handle the great complexity of cases they were faced with. It was as if the “drift” that characterized Ottoman sharī‘a law from the classical and pre-classical periods had to be complemented by another “drift” coming from the courts themselves.

Interpreting the past: “Feudal” variations

51We’re still a long way from a theory that would coherently explain the modus operandi of Ottoman “feudalism.” To be sure, the Ottoman “feudal” system operated with great variation between regions and provinces (Damascus and Mount Lebanon were a prime example). But such variables notwithstanding, the system must have functioned within a broader common logic than the sum of its parts to survive that long. The data remain fragmentary and a major setback has been an inability to root the socio-economic system into some of its most basic components, in terms of law, cost, and efficiency.

52For our purposes here we will look at two fundamental reproductive institutional units out of which the Ottoman feudal system could be conceptualized: at the most basic level stood all kinds of contractual obligations between individuals and groups, and at a higher level, the muqāa‘aacted as the unit of taxation, production, and reproduction of the feudal system. Since any agreement between two or more persons constitutes a contract, the transaction is for any society the most basic “legal” unit for the reproduction of the social and economic institutions. It does not matter whether such contracts are conducted orally or in writing, between individuals or groups, formally (by following strict legal rules) or informally, or whether they will be approved in court in the case of non-performance, or whether contractual settlements are followed by rituals (such as shaking hands, or ceremonial rituals) or are customary, or are simply concluded in the space of a courtroom. All such variations do constitute contracts, even though their legal significance may vary greatly, as some might be enforceable by a legal authority while others are not, not to mention the different values that societies attach to their own contractual settlements.

53In Ottoman societies, the elaboration of contractual rules and regulations was mostly the work of jurists, and our knowledge of contracts cannot but rely heavily on the anafī fiqh manuals, but it was left to bureaucrats to work out the regional taxation rules that regulated the transactions between the state and various types of households (the basic unit of reproduction and taxation). In effect, when it came to transactions where the state was not a partner, it was left to anafī practice to determine such modalities. Such a bulky material has often been avoided by historians on the ground that its historical nature remains uncertain: because jurists had to be faithful to their own madhhab, they tended to sacrifice their own period in favor of a harmony with the canon, thus strengthening the division between the “ought” and the “is.” But such fears are, however, misplaced, in particular since the amalgam of the sharī‘a court and bureaucratic documents, in addition to other “legal” texts, provides an opportunity for “verification” between various discursive levels. In fact, the significance of the fiqh manuals could only be appreciated once their discursive norms are reconstructed and assessed in conjunction with other discursive practices, among them the sharī‘a courts. But the study of contracts should not be limited to their exchange mechanisms, namely, the modalities of exchange and the value of commodities in terms of cost, supply, and demand. In fact, the transaction costs that stand behind contracts (and hence property rights) are fundamental in determining which contractual settlements and property rights are favored at a particular historical juncture. Such an approach is the aim of this study.

54We now come to the complex issue of the economics of a muqāa‘a,and like contract, if not more so, it remains misunderstood in terms of its modus operandi. The muqāa‘athat is of interest to us is not necessarily the “tax”-unit (a misleading term, considering that what was extracted was more of a “rent” than a simple “tax”) adopted by the imperial state (even though the two might coincide). The muqāa‘athat could be useful for analytic purposes should be no more than a single unit of production and its monetary organization: is it possible to measure a “net profit” once input and output are properly assessed?

  • 73 Halil İnalcık, “Village, Peasant and Empire,” in The Middle East and the Balkans under the Ottoman (...)

55Halil İnalcık has repeatedly argued that in the classical period (the sixteenth century) the çift-hanesystem was at the basis of the production of traditional society and its taxation by the state.73 While çift refers to çift öküz, or pair of oxen, the hane was the household, or the individual unit of production. The assumption here is that the individual peasant family was the fundamental cell of production, and was therefore taxed on that basis in arrangements similar to those in classical Islam (Table 4-1). To be sure, such arrangements tended to minimize the role of “intermediaries” such as the sipahis, as the state restricted by law how much should be extracted from each household (the system privileged the patriarchal hane, or household controlled by a male). The land that was granted to the peasantry under the çift-hane system was state owned and mīrī, and whenever it was directly granted to the peasantry it was part of the miri tapulu land system. That system existed side by side with the miri mukataalı, when a mukataa was granted to a tax-farmer, or the individual who paid a lump sum as rent often by auction to the highest bidder.

56Needless to say, it was the mukataa (Arabic: muqāa‘a,a “cut” territory) that survived in most provinces, so that even by the seventeenth century, the older timar-sipahi system had been already dominated by the a‘yān-multazims. Such a transformation only indicates the increasing role of all kinds of intermediaries, and the difficulties that the imperial state encountered in collecting its taxes without the services of such a “class” of individuals and families. It was that system that survived throughout the nineteenth century, albeit very differently between Damascus and Mount Lebanon.

  • 74 The term ‘uhda was more forcefully used in Mount Lebanon than in the Syrian countryside, even thoug (...)

57For our purposes here it is important to note that the system has been mostly approached from the point of view of the state, in particular that tapu registers are the only ones to provide taxation estimates at both the household and village levels. But to understand the system fully, one needs to know the bookkeeping activity of each “productive cell,” meaning the “unit” (which is not to be identified with the muqāa‘a) that was under the jurisdiction of a single individual or family. In Mount Lebanon such a “unit” was known as the ‘uhda (“custody”), and tended to be smaller than the muqāa‘a,which was the tax-unit for the state. But the real finances, however, were kept not at the level of a muqāa‘abut within the ‘uhda (or its equivalent in the Syrian countryside):74 first, its effective maintenance costs, and then how much output it generated. Several difficulties stand in our way for assessing the finances of such units. (1) The data used by most historians, such as tapu defters and succession (tarikāt) registers, are insufficient: the former give figures of what the state was able to collect within a certain locality on a yearly or bi-yearly basis (combined with the number of individuals and households), but they fail to show how much has been invested within that taxable unit, and how much has been generated as produce or as “profit”; while the tarikāt only assess the fortune of an individual once in a lifetime, so that figuring out a proper bookkeeping activity from such registers is only a matter of guesswork at best. (2) There are very few bookkeeping records of muqāa‘jīs or muta‘ahhids (or multazims) which have survived, and, of course, those would have been the most precious. (3) More importantly, however, is the ability to make meaningful assessments in an economy where the bulk of the peasantry worked under a corvée regime (but less so in Mount Lebanon), which is hard to evaluate in terms of real costs, precisely because each household kept part of the produce for its own survival, and the surplus was always exchanged in kind, while the final “profit” of the individual or family was in cash.

58Such productive agrarian units were sometimes referred to as çiftlik, even though the naming might differ among regions and provinces (and seems a bit remote from the çift-hane system described by İnalcık in that the peasants were for the most part left unprotected, except in Mount Lebanon), so that in Greater Syria the equivalent appellation of mazra‘a might be more common in some areas. Whatever the name, the problem rests in being able to define such units for analytical purposes.

59(1) The production in such units was mostly based on agriculture, so that manufacturing guilds were typically not included and, if they were, they would have had not much effect on the total output of the unit since they were primarily meant for the local consumption and subsistence of the households (by contrast, city guilds produced for exchange and controlled pricing by producing less than market demand). (2) They ought to be looked upon as single productive units, or as totalities within themselves. Labor was organized in such a way so as to be able to assess the total output and costs. (3) Such productive units could have been composed of anything from one to several villages, one to several “farms,” or a combination thereof. Hence the difficulty of finding the right term for that “productive unit,” and that’s why the Ottoman fiscal unit of muqāa‘amight not be the most convenient since, even though it usually consisted of a combination of villages and farms, it represented the fisc of the state but not necessarily the bookkeeping of muqāa‘jīs or multazims. The drawback was that the muqāa‘awas typically broader than a single productive unit, so that its functioning was at the same time more complex, but also disappointingly misleading since the bookkeeping activity normally took place at the lower level of the productive unit. Obviously, some of the official muqāa‘āt might have coincided with the single productive units, but it must have been so only by accident, since official assignments were concerned with the social and economic weight of their assignees. It was therefore left to the latter to envisage the bookkeeping methods that suited them the best. (4) The single productive unit must have been envisaged as such by its “owners” (the state, waqf authorities, or individual landowners) on the basis of what they could produce and their self-sufficiency, without reliance on other units (they could also be described as “autonomous” in their own right). The point here is that labor was organized accordingly, meaning that the balance-sheet has to go even by the end of the production cycle or the calendar year. To begin with, the bulk of labor consisted of corvées duties so that the majority of the peasantry worked for no more than its formal subsistence. Such labor cannot be therefore assessed at market price (doing so would only give absurd calculations), and its only cost consisted of no more than the subsistence of the peasants. To be sure, there were higher gradations of peasants (such as the ūbāshīs, whose status was conspicuously protected by the regional councils), which pushed for special tenancy contracts with their landlords (sharecropping was favored since it gave the tenant-farmer a fraction of the produce irrespective of market-price). (5) Considering that the three big divisions of property rights were mīrī, waqf, and milk, did it make any difference to which category a productive unit belonged? In some respects it did not since the bulk of labor was corvée, so that all those lands were auctioned to professional multazims irrespective of their category. On the other hand, landholding patterns could have created substantial differences in auctioning or leasing the land, and thus directly effect the status of the peasantry. To begin with, the cultivation and production tended to be different from one category to the next. Thus, state-owned mīrī lands were from the classical period times geared towards wheat-barley cultivation, while waqfs generally specialized in plantations (vineyards and orchards); and, finally, milk lands were smaller parcels, often referred to as “gardens” (basātīn, s. bustān) and contingent to the peripheries of the cities. In effect, grain cultivation was controlled by the state and thus kept within the domain of the mīrī, and multazims who were auctioned those lands by the state had to take into consideration all kinds of price limitations and obligatory dues (mubāya‘a) when exchanging their surplus. Moreover, even though waqf domains could have been as large as those of the mīrī, the nature of their plantations, whose produce was sold at better prices than cereals, not to mention their subjection to a single administration (originally stipulated by the founder), made them more attractive to peasants. Thus, for example, in nineteenth-century Mount Lebanon, mulberry plantations and the production of silk, most of which took place either on quasi-private properties or waqfs, pushed the region towards an early adoption of an aggressive manufacturing and proto-capitalism.

60Let us assume that the mīrī and waqf were the two most important rural categories of landownership, and that mīrī lands had to be auctioned on a regular basis to multazims, what were then the implications of iltizām on the productive cycles and finances of each unit, be it a muqāa‘a or something else? The “cost” of a single iltizām cycle for one productive unit could be divided into three basic components: (a) the māl al-iltizām, which was the cash-sum that the multazim paid for his public auction of the fiscal unit in question; (b) the māl al-mīrī, which was the “rent”—officially the “tax”—that should be paid to the treasury, and which was grosso modo calculated based on the yield of that fiscal unit (because technical innovations and price fluctuations were slow, a reevaluation of the mīrī dues on a regular basis proved unnecessary, and hence mīrī evaluations were generally based solely on area rather than on output in relation to production and cost); and finally, (c) the surplus that the multazim was able to generate from the whole operation, after payment of all dues and expenses, and which consisted, in the final analysis, of his profit (and which was the only part in the whole cycle that could generate cash). The assumption here is that the peasants kept part of the produce for their own subsistence and that they were not, for the most part, paid in cash, and that the fraction of the produce that they kept for themselves could not be considered as a payment in kind either. Does it make any difference then whether the land was mīrī, waqf, or milk? It wouldn’t make much of a difference if the same iltizām system was used in all three. Thus, waqf documents routinely mention that a land had to be auctioned to a multazim, who might have run in conflict with the administrator, hence the need for a court action. In that case, even though the dues to the treasury were most probably paid by the waqf authorities rather than by the multazim, the three sums briefly outlined above remain remarkably similar, if not the same.

61Before moving to the next chapter, we need to examine how contractual settlements, which were analyzed in the previous chapter, point to the intricacies of Ottoman feudalism. To begin with, and considering the predominance of status contracts, contractual settlements tended to remain within the range of the family, clan, or network. In fact, and considering high-information costs, when negotiations remained between individuals and groups that knew one another, risk was minimized and the certainty that the contract would be performed was certainly greater. Moreover, without the procedural fictions that have flourished throughout the Ottoman period (Table 2-2 supra), and which were all along a bystander effect of anafī practice, many of the contractual settlements analyzed in this book would have been impossible. In effect, all such fictions had as a primary purpose to bypass limitations imposed by (a) the division between the mīrī, waqf, and milk system; (b) the concept of equal and simultaneous exchange; (c) the Islamic rules of inheritance; and (d) the harsh parallelism that anafī practice draws between a contract of sale and a regular lease, thus subjecting the latter to the former. Let us briefly discuss each one of those statements on its own, as they will all be of primary importance in analyzing many of the cases in the following chapters.

62To begin with, and as a general remark, fictions were not primarily aimed at duping the Ottoman authorities in order to bypass the rigidity of landholding patterns and the predominance of state-owned lands, even though it is to be expected that effectively there were at times mīrī lands that had been illegally converted to either milk or waqf. Fictions should rather be looked upon as a necessary evolution within anafī practice, which was looked upon by the imperial state as a “special community law,” hence with a “private” character rather than a “public” one. The anafīs in turn integrated all kinds of customs into their practice, thus making their long-standing tradition adapt fully to regional and contemporary needs—hence the need for procedural fictions. Thus, for example, in the big distribution of landholding patterns, mīrī lands could be transferred to milk (and then to waqf, if needed) only by sultanic decree in the form of donation (hiba) specifically to a person or family. But, as noted in the previous section, the anafīs approved that a land that has been cultivated for a period of time, and “occupied” accordingly, be “possessed” by that same person irrespective of its original ownership, even if it were the state. To do so legally, so that the land becomes “owned” by that same person who “occupied” it for a period of time, a procedural fiction is needed. The plaintiff accuses the defendant of illegally occupying his land (wa‘ yad), thus forcing the latter to furnish evidence in the form of witnesses, prior to receiving a ruling in his favor.

63Similarly, the Islamic rules of inheritance have always posed problems in terms of property fragmentation and its loss to unwanted heirs. Both have been dealt with thanks to fictitious sales where properties were exchanged and reassembled to fit better with the needs of the inheritors. Another formula was the husband suing his wife (or vice versa) so that they would transfer their properties to their children while avoiding the pitfalls of having them distributed to their own brothers and sisters or to the elders in the family. The heirs in turn would sue one another in an effort to redistribute the inherited properties, while women would receive at times some of those properties in toto to avoid the fragmentation or confiscation on the male side (C 5-1 & 5-2 infra). Such fictions were even common to non-Muslims, who by virtue of some of their own customary laws that forbad inheritance to women, reshuffled their properties in the anafī courts. It would therefore be totally erroneous to look at all such cases as genuine acts of sale, and even more misleading to consider that women and minorities were treated “equally” or “fairly” since those sharī‘a documents represented the use of fiction in its most perverse ways.

64Another aspect of these fictions were their wide use in lease contracts (Chapter 3 supra). Besides the usual needs to extend leases beyond their legal three-year periods, fictions were necessary to acknowledge all kinds of investments in the leased properties and, hence, to create out of the tenant a de facto second “owner.” What such operations do point to, however—and many are still common to date—is the uncertain status of “private” property in the sense that the cost of maintaining it would have been so prohibitive that preference was given and rights were granted to those who made use of it.

65To conclude, we need to look very carefully at contractual settlements. It was all manner of contractual arrangements that in the final analysis gave shape to the status of properties. In effect, because private property was hard to acquire, even harder to maintain, and easy to lose, and due to the abundance of the mīrī and the inefficiency of that system, individuals and groups related to a property through various contractual settlements, whose variety was much broader than the rigid property distinctions. Thus, waqfs were less devices for the protection of a portfolio of private properties than a web of contractual arrangements which linked the beneficiaries to one another, on the one hand, and the administration with various tenants, on the other. In effect, the Ottoman system was characterized by a predominance of contractual settlements over property types, the latter receiving their shape from the former. In other words, considering that the conception of private property did not evolve much, property rights were worked out and negotiated through contractual settlements, thus leading to an array of procedural fictions to accommodate such bargains. Had the notion of private property solidified, and its implementation become cost effective, as is the case in many modern systems, defining those private property rights would have been the core issue. But when the notion of “private” has not yet matured enough, the judiciary facilitates contractual settlements through fictions. The Ottoman period was thus characterized by a flux of contractual settlements defining specific property rights, whether on mīrī, milk, or waqf lands. One way to explore such a flux is through a micro analysis of cases, which is what we hope to achieve in the following chapters.

Notes

1 This has been brilliantly articulated in Luc Boltanski and Laurent Thévenot, De la justification. Les économies de la grandeur (Paris: Gallimard, 1991).

2 Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, translated by William Rehg (Cambridge, Massachusetts: The MIT Press, 1996).

3 See, Antoine Garapon, Bien juger. Essai sur le rituel judiciaire (Paris: Éditions Odile Jacob, 1997).

4 Niklas Luhmann, A Sociological Theory of Law (London-Boston: Routledge & Kegan Paul, 1985), 88: “There is no decision made about the oath at all; it decides itself, and this not in the way of a judgment but in the way of direct effectiveness: in the form-dependent release of magical violence by engaging one’s person.” “The oath is a legal proof because that was already the case with physical violence which it replaces. However, the oath, as opposed to physical violence, offers better prospects of transformation into an instrument of procedural truth-seeking legal judgment.”

5 Habermas, Between Facts, 30: “In contrast to convention and custom, enacted law does not rely on the organic facticity of inherited forms of life, but on the artificially produced facticity found in the threat of sanctions that are legally defined and can be imposed through court action.”

6 See Chapters 3, 5 & 6.

7 Luhmann (Sociological Theory, 138) correlates the emergence of individuals’ disputes over status and landownership titles in early modern Europe with the creation of a “normative order”: “A normative order thus comes into existence—and this is something totally new—which facilitates a treatment of and decision on legal controversies.”

8 See Chapter 11 infra.

9 See Chapter 3 supra.

10 D. Neil MacCormick and Robert S. Summers, ed., Interpreting Statutes: A Comparative Study (Aldershot: Dartmouth, 1991), 177: “The concept of ‘gap’ is typically theoretical and not judicial.” “Instead of drawing a distinction, French judges tend to disguise the filling of gaps as interpretation.”

11 On the original meaning of formula in the Roman legal system, see, Barry Nicholas, An Introduction to Roman Law (Oxford: Clarendon Press, 1962), 23-27.

12 The same issues could be raised in the context of modern legal systems, see, for American case-law, Karl N. Llewellyn, The Case Law System in America, translated by Michael Ansaldi (Chicago: The University of Chicago Press, 1989).

13 See Chapter 10 infra.

14 Interestingly, such a procedure of memorization was not used in Damascus—except in the only sijill of the majlis of 1844-45—and it remains to be seen where those extra-legislations are hidden.

15 Fatāwācollections are of different kinds: 1) a marginal number of court documents contained their own fatwās: usually a fatwā was drafted at the judge’s request, but the disputants could also seek the muftī’s arbitration; 2) some fatāwā collections were a tanqī of previous well known ones, such as Ibn ‘Ābidīn’s tanqī of the muftī Imādī’s fatwās; 3) a final category consists of less well edited and thought of collections, probably collected to help judges in their rulings and muftīs in drafting more fatwās; for the most part, they still are in manuscript form.

16 The sharī‘a courts were gradually deprived, throughout the nineteenth century, of some of their more interesting and controversial adjudications: craft-guild litigations, even though common in the eighteenth century, ceased to exist by the early nineteenth, even though, surprisingly, the Damascus majlis in 1844-45 had quite a few of them; then, crimes were reduced to mere contractual settlements or as bargains on the amount of the diya, in case the crime had been acknowledged by the defendant (accused); finally, land cases, which turned out to constitute the best of what the nineteenth century had to offer, were relegated in the 1860s to other more specialized and newly instituted courts.

17 See, Niklas Luhmann, “Quod Omnes Tangit: Remarks on Jürgen Habermas’s Legal Theory,” Cardozo Law Review 17 (4-5 1996): 883-900.

18 See Samadar Lavie, The Poetics of Military Occupation (Berkeley: University of California Press, 1990).

19 Ibn ‘Ābidīn, Radd, 4:175-194: “Bāb al-‘ushr wa-l-kharāj wa-l-jizya.” In-text sources, unless otherwise stated, refer to this section of the Radd: references are to volume and page number.

20 On the structure of the Radd, see Appendix 1 infra.

21 In nineteenth-century sharī‘a courts and majālis, kharāj has been completely dropped as a term; ‘ushr was usually referred to in plural, either as a‘shār, ta‘āshir, or ta‘shīrāt, all of which, however, generally denoted the tithe extracted from mīrī lands; they also seem to have been used interchangeably with amwāl amīriyya; moreover, all such terms could have also referred to taxes paid on privately owned lands.

22 The concept of ownership in Islamic law—a distinction not yet actualized at the time of Abū Yūsuf—implied two related things: tamlīk al-‘ayn, the tangible thing itself, and, tamlīk manfa‘a, the use of the thing (a possession of the droit d’usage). What Abū Yūsuf meant by milk and tamlīk needs a full analysis of the agencement of his text, which is beyond the scope of this study. Suffice it to say, however, that his notion of “private property” was more moral than legal: it was not in the imām’s interest to revoke an earlier decision concerning the assignment of lots of land to particulars.

23 Ya‘qūb b. Ibrāhīm Abū Yūsuf, Kitāb al-kharāj (Beirut: Dār al-Shurūq, 1985), 178.

24 From aswad, meaning black. The term “Sawād lands (arāī al-Sawād)” was one of those strange terms coined by the early Muslim conquerors on the agricultural lands of Irāq, which had mostly a Greek-Orthodox peasantry, and which were among the most fertile of the region. As indicated in Abū Yūsuf’s Kitāb, early tax-assessments were on the basis of the number of “skulls (jamājim),” another one of those strange labels:And ‘Ayyāu b. Ghanam al-Fahriyy did a preliminary census of the skulls [jamājim, that is, the non-Muslim peasants] in the Jazīra: he calculated for every skull one dīnār, two mudds of wheat, two quss of oil, and two quss of vinegar; he thus treated [all peasants] on an equal basis [wa ja‘alahum jamī‘an abaqa wāida] [...]When ‘Abdul-Malik b. Marwān became caliph, he appointed al-Âaḥḥāk b. ‘Abdul-Ramān al-Ash‘arī [to the task of collecting taxes from the non-Muslim peasantry]. He thus counted the skulls [aḥṣa al-jamājim] and considered all people working with their hands [wa ja‘ala al-nāsa kullahum‘ummālan bi-aydīhim], and then estimated what the worker [al-‘āmil] gains [yaksab] in one year, and deducted from this the cost [nafaqa] of his food, clothing, and shoes; he also deducted all the holidays [a‘yād] of the year [...] (Ā50, 139).

25 Abū Yūsuf, Kitāb, 179.

26 Abū Yūsuf, Kitāb, 174.

27 Ibn ‘Ābidīn, Radd, 2:326-334: “Malab muhim fī ukm arāī Mir wa-al-Shām al-sulāniyya.”

28 For a discussion of this chapter, see below.

29 Ibn ‘Ābidīn later admits (see below), however, that what the peasants—as “tenant-farmers”—were paying to the state as “rent” was an equivalent to a kharāj muqāsama.In the Ottoman terminology, which Ibn ‘Ābidīn seems to be deliberately avoiding, the “rent” was an equivalent to the māl mīrī, even though it was officially referred to as a “tax.”

30 Ibn ‘Ābidīn, Radd al-mutār, 2:326. It is not possible in this context to take into account the process of adjudication between opinions that Ibn ‘Ābidīn devoted himself to. Only his own opinion, whether conforming to taqlīd or tajdīd, will be noted.

31 Despite its importance, this is not a widely discussed topic, with the notable exception of Baber Johansen, The Islamic Law on Land Tax and Rent. The Peasants’ Loss of Property Rights as Interpreted in the Hanafite Legal Literature of the Mamluk and Ottoman Periods (London: Croom Helm, 1988); and, Kenneth M. Cuno “Was the Land of Ottoman Syria Miri or Milk? An Examination of Juridical Differences within the Hanafi School,” Studia Islamica 1 (81 1995): 121-152. Needless to say, I disagree with both assessments regarding the nature of “change” in Ottoman anafism and do not see much of a “correspondence” between the jurists’ reformulations of old classical concepts, and the new realities created by the Ottoman land-tenure system. Indeed, it is more realistic for analytic purposes to begin with the incongruity between the juristic discourse and other discursive levels, and then ponder on the difficulties that jurists faced when attempting to formulate the Ottoman land-tenure system.

32 Because the edited version of Rasā’il Ibn Nujaym(Beirut: Dār al-Kutub al-‘Ilmiyya, 1980) is at times unreliable, I compared it with one of the available manuscripts: Zayn ad-Dīn b. Ibrāhīm Ibn Nujaym, “Kitāb al-rasā’il al-zayniyyah fī madhhab al-anafiyya,” MS 8252, microfiche 8729 (Damascus: The Asad National Library), copying completed by a scribe on 14 Ramaān 1029/August 13, 1620, and the rasā’il are ordered differently from other available manuscripts; the forty-third risāla on the legal fiction of the death of the kharāj-payer, is to be found on folios 103-109; the same risāla is numbered six in the Rasā’il, 50-64 (drafted in 958/1551).

33 Ibn Nujaym, “Kitāb al-rasā’il,” 104a.

34 Ibn Nujaym, “Kitāb al-rasā’il,” 104b.

35 It is not clear whether such an ambiguous statement implied a no-tax-forever policy, or that only the person who purchased the land was exempt from taxes; his heirs or future owners would have to follow the regular taxation system.

36 Since those “allocated” waqfs were kept by élite groups over long generational lines, what becomes noticeable in nineteenth-century sharī‘a court documents were attempts aimed at establishing these properties as the milk to whom they were granted to in the first place. Thus, for example, some of the Shihābī emirs and their “relatives,” who managed close to a century of political hegemony in the difficult areas of Mount Lebanon, were still very active in court litigations right after their demise in the 1840s (see Chapter 5 infra). What the cases of the Shihābī emirs clearly establish was a pattern of property transfers—formally either milk or waqf—between the younger generations of the Shihābs and their elders. Helped by all kinds of legal devices, or , which were used with a great deal of artfulness, the Shihābs were able to consolidate, by means of fictitious litigations, their ownership rights on large domains and estates. What is of interest here is that because of the confusion that reigned, throughout the Ottoman period, and in particular during the nineteenth century (the period prior to the 1858 Land Code), over the status of rural properties as to whether they were “genuinely” waqf and milk or not, many attempted to establish their ownership rights, over properties that formally should have belonged to the treasury, through a formal and fictitious litigation process.

37 Robert Mantran and Jean Sauvaget, Règlements fiscaux ottomans: Les provinces syriennes (Damascus: Institut Français de Damas, 1951), 7.

38 Calculations based on the produce become important only in a competitive environment where sales are generally in cash.

39 Quoted in Colin Imber, Ebu’s-su‘ud: The Islamic Legal Tradition (Edinburgh: Edinburgh University Press, 1997), 120.

40 Quoted in Imber, Ebu’s-su‘ud, 125.

41 Our selection of texts is not limited to uūl and mutūn texts, and considering that the Radd itself represents a shurū manual par excellence, in which Ibn ‘Ābidīn had integrated some of his most well known fatwās, our assessment will become even more obvious once sharī‘a court cases are fully explored together with the minutes of the regional councils and the sultanic firmans.

42 See Chapter 9 infra.

43 Zarqā’, Madkhal, 2:937-8.

44 See Table 2-2 supra.

45 Contrary to many assumptions in contemporary scholarship, see, for example, Th. W. Juynboll, “Kharādj,” Shorter Encyclopedia of Islam (Leiden-New York: E.J. Brill, 1991), 245: “In the later fi∆h-books we therefore only find the regulations regarding the poll-tax still given in detail, while those for the kharādj are only dealt with cursorily or even not at all. Only in al-Māwardī’s special work on the Muslim system of administration do we find the regulations for the kharādj still dealt with in considerable detail.” Well, apparently, a late jurist like Ibn ‘Ābidīn was at least as much obsessed with kharāj as Māwardī.

46 That is, the māl mīrī in the official Ottoman terminology.

47 This should have in principle included the ‘ushr also; but, considering that most conquered lands were assigned as kharājī, and that in early Islamic history, Muslims were a minority, the kharāj became the reference to taxation; the kharāj, and more specifically its dominant form, the kharāj muqāsama, was roughly one-sixth to a fifth of the produce, hence twice as much as the ‘ushr (Ibn Nujaym, Rasā’il,62). Such factors, showing the overwhelming importance of the kharāj over the ‘ushr, could explain why Ottoman jurists and officials compared it to the māl mīrī—despite the fact that the kharāj was never considered an ujra by early jurists.

48 The notion of mu‘add li-l-istighlāl or li-l-ījār implies that the proprietor has given up on the ‘ayn of his property (istaghna ‘an ‘ayn-ih) and decided to lease it, so that whenever the tenant decides to give up on the lease, the property is leased to another tenant.

49 What about lands which were ‘ushr and which were purchased or transferred or inherited? Why did Ibn ‘Ābidīn limit himself to kharāj lands?

50 That is, the arāī amīriyya,often shortened to mīrī in the official Ottoman documents, including the sharī‘a courts and the majālis of the Tanz˛īmāt.

51 It is not clear what the historical or linguistic origins of the term are: the root of could well be āza, to hold, possess, or own; and take or gain possession of. refers also to a locality (iya or mawi‘); thus, arāī al-awz were the acquired mīrī lands by the state.

52 This distinction goes back to Abū Yūsuf in Kitāb al-kharāj.

53 The kirā’ is the tenant’s rent, or the pay (salary) of a hired person.

54 The assumption here is that all leased lands were mīrī. Once their ujra was paid by the tenant-farmer to the treasury, they should owe no more additional “taxes,” either ‘ushr or kharāj. In the case of privately owned lands, the ujra was—in principle—paid by the tenant-farmer to his landlord, who, in turn, would pay the ‘ushr or kharāj to the state. For this “special third category” of lands, which was state-owned, each land had either to pay one of the two forms of kharāj, or be rented and no longer subject to any additional “tax” since the “rent” paid to the state was in lieu of any “tax”: in short, tax and rent would overlap and become indistinguishable. But then, in this case, the “rent” itself would be assessed on the basis of what the kharāj was, that is, the rent effectively replaced the kharāj.

55 Ibn Nujaym, Rasā’il, 62.

56 Even though that was explicitly stated as such in Abū Yūsuf’s Kitāb al-kharāj, the notions of milk and tamalluk were distant from their modern connotations of “absolute and inalienable ownership,” and should therefore be understood relative to the feudal meanings of early Islam, namely as properties that belonged to the community of Muslims, but whose “possession” was in the hands of private “individuals.”

57 See in this respect the severe criticisms against judges, multazims, and waqf administrators already described in previous chapters.

58 Or the kharāj muqāsama; or the ujra—the māl mīrī in Ottoman official documents.

59 In his “book of judging,” Ibn ‘Ābidīn acknowledges the unusual spread of fictitious litigations at an alarming rate, and requests from judges to declare a case null and void whenever they suspect that the case at hand is fictitious (Chapter 2 supra).

60 That is the kharāj muqāsama, ujra, māl mīrī.

61 See Chapters 3, 5 & 6.

62 I consider “occupation” much weaker than “possession” in terms of granting property rights and the like.

63 “An important request concerning the fact that ‘ushrī- or kharājī-lands, unlike state-owned lands, could be subject to preemption: We have put forward that the arāī sulāniyya are not subject to preemption; and it was mentioned in [Ramlī’s] Fatāwā Khayriyya that the fact that a land was ‘ushrī or kharājī does not in itself contradict milk. Indeed, many books assert that kharājī- and ‘ushrī-lands are owned (mamlūkah), and they could be sold, bequeathed as waqf, and inherited; they could also be subject to preemption, in contrast to state-owned lands, which are subject to sharecropping and could not be sold, hence there is no preemption in them. So if an occupant (i‘ yad) claims that the land is his own, and that he is paying its kharāj, he should then present enough evidence [to prove his ownership]. I simply mentioned this because of its frequent occurrence in our province (bilādu-nā). We also said that preemption does not apply to lands subject to , whose regime is different from that of the waqf” (Ibn ‘Ābidīn, Radd, 6:224).

64 Similar perhaps to a principle known, in American common law, as “adverse possession,” a rough equivalent of squatters’ rights.

65 That is, the kharāj muqāsama, or māl mīrīin the official Ottoman texts (sharī‘a courts and majālis).

66 This is a direct reference to the old sixteenth-century tax-farming system; but as with the mīrī, whenever Ibn ‘Ābidīn drops their name, he does so without any attempt to dissect the essence of the system. In nineteenth-century sharī‘a courts documents, terms referring to the old tax-farming system were still in use, albeit very marginally. It is not clear, however, whether they were meant to be taken as simple names without any real content, or whether they did express some real privileges to families with “timār” assignments.

67 In Turkish: zeamet: large fief.

68 A common term in the majālis records (dhakhāyir), seeming to refer to what was often demanded by the treasury in addition to the māl mīrī,a sort of “tax” at the margin of the mīrī, which was more of a “rent.”

69 More commonly known as sipāhis.

70 A lump-sum-rent similar to the maqū‘:in those cases, the mīrī was not estimated on the basis of a percentage of the produce.

71 Ibn ‘Ābidīn, Radd, 4:188-89, see below.

72 The Majalla devoted a chapter to the notion of daf‘ al-da‘wa: see, Salīm Rustum Bāz, Shar al-Majalla (Beirut: Dār al-Kutub al-‘Ilmiyya, a facsimile from the original [1888?]), 2:927-933.

73 Halil İnalcık, “Village, Peasant and Empire,” in The Middle East and the Balkans under the Ottoman Empire: Essays on Economy and Society (Bloomington: Indiana University Turkish Studies, 1993), 137-60. Even though İnalcık’s aim was to dismantle the Weberian thesis of “sultanism” and the so-called Marxist thesis on an “Asiatic mode of production” dominated “from above” by an imperial center (the bureaucratic and territorial state), it remains nevertheless true that, the çift-hane notwithstanding, land distribution was mostly granted by the state and its various bureaucratic instances, which roughly corresponds to the old feudalism of the Holy Roman Empire (the low Middle Ages). By contrast, in the high Middle Ages, the seigneuries system implied land distribution to the new military aristocracy “from below.”

74 The term ‘uhda was more forcefully used in Mount Lebanon than in the Syrian countryside, even though the Damascus documents often refer to the act of granting as fī ‘uhdat fulān, or being in the custody of X.

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Table 4-2: 2/2

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