Governing property, making the modern state - PSI424

Legal doctrine here frames property: it defines the legal persons, institutional
and individual, and their powers with regard to the objects it recognizes. Hence
a first task in our study is to sketch the terms of the law. This requires reading
legal concepts, such as tapu and halit ve şerik, from inside a legal tradition
evolving over time.
In the case of late Ottoman law it proved difficult to rely solely on secondary
legal scholarship. In spite of differences in interpretation, European scholarship
on the 1858 Land Code generally treated the law as bearing a unitary meaning
and intent. A first school of thought considered the Code an expression of the
central state’s attempt to regain control over the administration of land lost
from the seventeenth century onwards. 3 Revisionist historiography responded by
interpreting the Code as the culminating legal expression of the development of
effectively private rights to land over the same two centuries. 4 But neither of these
schools undertook detailed reading of the history of the terms of the Code. 5 With
regard to the administration of the Code, European scholarship of an earlier
generation, guided by Eurocentric Mandate or Zionist readings of Ottoman
reform, judged it a failure compared to Western property modernization. 6
Turkish scholars have made a greater contribution, but for two reasons their
readings of the Land Code ignored, more than built upon, the work of jurists of
the late nineteenth and early twentieth centuries. 7 Turkish historical scholarship
had two core foci, the classical Ottoman regime and the Tanzimat reforms of
the later nineteenth century, but it left the seventeenth-, eighteenth- and even
early nineteenth-century background to Tanzimat legal reform obscure. 8 The
Republican secularism of Turkish scholars led them to neglect debates of Islamic
jurists in their reading of Ottoman law. 9 Thus, in a manner that might otherwise
appear surprising, the present account of late Ottoman property relations will
begin with a sketch of the development of legal doctrine long before the nineteenth
century.
But let us return to the case at hand.
If the persons engaged in the social relations of ownership are clear enough,
how was the object of right described in the notices? The ‘thing’ owned appears
to be 1½ shares of the land of the village of Hawwara: a fraction of all the lands
of the village, not a plot delimited by four borders in the manner of Islamic legal
tradition nor a plot numbered with reference to a map. In the tapu register of 1876
the borders are given for three great blocks of land of the village each of which is
divided into 46½ shares. In fact the regulations for registration of land nowhere
prescribed such a form of description. Thus, although not in contradiction with
the terms of the law, the description of the object of right was not simply dictated
by the law. How then can we explain it? The answer to that question will be
developed in Part two of this book which examines the political administration
of property, notably, the negotiation of the terms of registration of land between
the officers of the administration and regional leaders. This negotiation occurred
at the level of the district, as well as in every village.
Hawwara was the third village of the district to undergo land registration
3
Introduction