Governing property, making the modern state - PSI424

Introduction | 1
alienation of right to persons who were resident in the village but had come
in as associates of Na’il Gharaiba. Those who opposed the transfer were led
by figures from the two major families of the village, Muhammad al-Hasan
al-Shatnawi and Mustafa ‘Abdul-Qadir Abu Kirsanna. 15 Cultivation arrangements
for Yusuf Suwaidan’s land were probably also at issue. 16 The case was fought not
on grounds of the purchasers being outsiders but in terms of a violation of the
principle of common interest.
The common interest of the cultivators corresponded to the etymological
meaning of the terms under which they appealed, halit ve şerik or khalit washarik
in the Arabic of the villagers. 17 The basic linguistic distinction between
khalit and sharik is that khalit refers to a property which began as individual but
was combined (for example, sheep in a flock) as opposed to a notionally single
property or interest held jointly and shared between persons (each a sharik in a
joint property). 18 Thus the cultivators presented themselves as khalit, their plots
interlaced with or adjoining the land of Yusuf Suwaidan, and sharik, members
of a co-cultivating association. It was not, however, the etymological sense of the
words but their changed juristic interpretation that was to prove decisive. 19
The court apparently followed the contemporary interpretation of the terms
in the Land Code. We do not have a full record of the legal decision, but the
published legal interpretations of the phrase halit ve şerik, which occurs once
in the Land Code in clause 41, may give some indication of why the claimants
lost the case. Clause 41 concerns miri land but the commentaries on the Code
all cite as definitions for the terms those given in the Mecelle with reference to
mülk property. 20 The transposition of definitions from mülk to miri land in this
manner was problematical, marking a break from Ottoman tradition where the
distinction between the principles governing miri or ‘state’ land as opposed to
mülk or private land was clear. 21 But all commentators cite the Mecelle where the
definition of halit is one sharing a common servitude, such as a road or irrigation
channel, and şerik, a co-sharer in a holding of property. 22 The commentators on
the Land Code render the term halit entirely dependent on co-ownership and
without independent force. 23 And so, although the cultivators unquestionably
shared servitudes, because they were not registered as co-owners with the seller
in the tapu records, their claim challenging the transfer failed.
A court case is never just an academic reading of the text of law. In the case in
question, the ‘lawyer’ (wakil) for the winning party, Na’il Gharaiba, would have
been well equipped to persuade the members of the court: the deputy governor,
two prominent men of the region (one a rural leader of the ‘Azzam family
of the Wustiya sub-district and the other from a prominent Christian family
of al-Husn village involved in regional finance) and a scribe. Na’il Gharaiba
appears to have acted at the level of several villages, perhaps as the semi-formal
government agent for tax affairs of the village or sub-district, a function that
in earlier decades could give a man the title of sheikh. 24 He had close relations
with figures in the finance administration. That Na’il Gharaiba acted as legal
agent in this case reveals the exemplary, educative function of the district court
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