Governing property, making the modern state - PSI424

claim the land: (1) those who owned trees
or buildings as mülk on the miri land, (2)
the halit ve şerik, and (3) needy persons of
the same village.
The terms appear in this context from
at least the mid-seventeenth century, not
only in the context of succession but also
of reversing alienation within a period
of five years. Bahaî Efendi – presumably
Mehmed Bahaî Efendi who served twice
as sheikh-ul-Islam in the mid-seventeenth
century, see Kahraman et al. (eds), İlmiyye
Salnamesi (1998), pp. 375–7 – judged:
‘Mesele: arazi-i miriyyede şufa caiz olur
mu? Elcevap: Olmaz. Ama şerik ve halit
varken talep ettiği surette ahare verilmemek
ile memurdur.’ The fetwa appears
among those appended to Zahir ül-Kudat,
attributed to Pir Mehmed al-Üskübî (d.
1612) in Akgündüz (ed.), Osmanlı Kanunnameleri
ve Hukuki Tahlilleri (1996), vol.
9, p. 446. In a late kanun dated to the
era of Ahmet III (SK, Esat Efendi 852,
fol. 87a), fields are described as müşâ’ ve
müşterek by claimants, who, absent at
the time of alienation of land, describe
themselves as ‘halit ve şerikleriz’; they are
recognized to have a right under the şer’ to
reverse the alienation to a third party within
five years. The fetwa cited in the kanun
is attributed to al-sayyid al-faqir ‘Ali,
perhaps sheikh-ul-Islam Paşmakçızade Ali
Efendi who served at the very beginning of
the eighteenth century (İlmiyye Salnamesi,
p. 403). See also sheikh-ul-Islam Abdürrahim
(d. 1716), Fetava, BL.OR.12463,
fols 506a–507b, and Ibn ‘Abidin who gives
a parallel fetwa in al-‘Uqud al-durriya fi
tanqih al-Fatawa al-hamidiya (1883), vol.
2, pp. 190–91. ‘Ubaidu’llah ‘Abd al-Ghani,
al-Nur al-badi fi ahkam al-aradi, dated
1796, ZAL.4400, fol. 148a, writes of land
as khalit mushtarak in a fetwa he ascribes
to Ebussuud himself: ‘afta maula-na al-
‘allama shaikh al-islam Abu ’l-Su‘ud anna
la shuf‘a fi ’l-aradi al-amiriya illa idha
kanat khalit mushtarak fa-inna ’l-sharik
ya’khudhu-ha bi-haqq al-tabu au huwa
aula min al-ajnabi’.
239
In none of the above is a joint temessük
or tapu document mentioned as a condition
for the claim to be recognized.
20 The relevant part of the Mecelle
was published in Turkish in 1871, clause
954. The Mecelle (Ahkam-ı adliye mecelleleri)
represents a codification (i.e. clauses
are numbered and juridical argument is
minimal) of major civil contracts according
to the Hanafi school of jurisprudence.
21 The most careful of commentators
on the Land Code, Eşref: Külliyat, p. 293,
notes that the phrase halit ve şerik is
explicitly used to distinguish the right
to challenge an alienation of miri land
(rüçhan) from the right of pre-emption
(şufa) in mülk property.
22 See the discussion of clauses 945
and 1045 of the Mecelle in Eşref: Külliyat,
p. 291.
23 Eşref is disturbed by this reading
since he points out that grammatically the
‘ve’ preceding şerik would imply that the
second term şerik qualifies or amplifies the
meaning of halit. But he too opts for the
accepted reading that the term is effectively
otiose (Külliyat, p. 291). A halit has no
independent power to reverse alienation:
‘Binaenaleyh yalnız halit olan kimseye
hakk-ı rüçhani gayr-i caizdir’ (Külliyat,
p. 295).
24 He is described today as a literate
man who studied in Istanbul and knew
Turkish. Na’il is never designated as
sheikh in the tapu registers where the term
invariably denotes a man of some religious
renown; nor does the family today claim a
pedigree of religious learning. In 1884–88
when he serves on the newly formed
Municipal Council of Irbid, he is suitably
termed efendi: Salname-i Suriye xvii
(1302AH), p. 185; xviii (1303AH), p. 173; xix
(1304AH), p. 193; and xx (1305AH), p. 123.
He also serves on an Educational Commission
established in 1894–95 (Salname-i
Suriye xxvii, (1312–13AH), p. 211) and
on the Board of the Agricultural Credit
Bank as late as 1900: Suriye, no. 1785, 26
Teşrinievvel 1316AM. Abu ’l-Sha‘r, Irbid
Notes to chapter 1