Governing property, making the modern state - PSI424

Notes to chapter 2
nakl olunmaz; tatil-i arzına tazmin ne
şer’îdir ne örfî’. The latter phrase reveals
the difficulty of legitimating this aspect of
administrative law: ‘indemnifying for lack
of cultivation of land is a matter neither of
Islamic law nor of custom’. The principle
is clearly stated again in mesele 48.
A period of ten years was also required
for the acquisition of permanent rights
to cultivate a lot of land where the
cultivator’s name was not previously in the
register.
23 Ibid. p. 404, mesele 52: ‘On yıl
mürurundan sonra cebren nakle memur
değildir. Arzdan muattal yeri kaldıysa
tatile göre tazmine kadirdir. Resm-i çift bozan
dedikleri budur.’ In a case concerning
a non-Muslim the son was still paying the
resm-i çift bozan of the father after thirty
years! See ibid. p. 403, mesele 47. For Syria,
see ‘Ali al-‘Arabi: Risala fi ’l-hisba, fol. 13b:
‘wa-li-yu‘lam anna ’l-ra‘aya idha harabu
min timar sibahi wa-‘atalu falahata-hu
wa sakanu fi-timar akhar fa-mithl ha’ula’
yu’khadh min-hum al-‘ushr martain zajran
la-hum’. Later kanun stresses that either
the çift bozan resmi or the double tax (öşr)
would be collected, see SK.Esat Efendi
852, fol. 62a.
24 Akgündüz: Kanunnameler, vol. 9,
p. 404, mesele 54.
25 See ‘Osmanlı kanunanmeleri’, Milli
Tetebbular Mecmuası i (1903), p. 66, for
reference to a firman of early Zilkade
975AH entitling the daughter to land on
payment of tapu. In 1018AH/1609 a firman
allowed the same to a paternal brother,
and failing that a sister resident in the village.
For the right of a daughter, compare
Akgündüz, Kanunnameler, vol. 9, p. 399,
mesele 25: ‘Kızı talibe ve ragibe iken ahare
verilmeğe izn-i sultanî yoktur’. A sultanic
order of 1034AH/1624–5 permitted the land
of a mother to be transferred to her son
and later also to her daughter, brother or
sister on payment of tapu.
26 Female heirs were legally entitled
to inherit part of a father’s mülk property
(trees, walls, agricultural implements,
242
buildings) but not in his miri lot of cultivation.
27 See Imber, Ebu’s-Su‘ud (1997),
pp. 3–23.
28 Imber: Ebu’s-Su‘ud, p. 120, translating
a fetwa collection of the John Rylands
Library gives a text which mentions aradi
al-hauz unlike the otherwise very similar
fetwa published by Akgündüz: Kanunnameler,
vol. 4, p. 84. Imber’s translation
reads: ‘Leasehold (hauz) land and royal
demesne (aradiy al-mamlaka) are lands
where no one knows from whom they were
seized at the time of the conquest, or to
whom they were given, or whose owners
have died out. Because the status [of the
lands] and [their] owners are unknown,
they were taken for the treasury.’ The
text of the fetwa published by Akgündüz,
drawn from the Kanun-i Cedid, reads as
follows: ‘Ve arz-ı han memleket odur ki,
hin-i fetihte ne veçhile aldığı ve ne veçhile
verildiği malum olmayıp yahut malikleri
münkarizler olup mechul ül-malik olmakla
beytülmala zabt olunup, vükela-yı sultani
vilayet yazdıkları vakit ikta eyleyip bazı
sipahiye idrar-ı timar üzere verile. Bu
diyarda arz-ı miri bu kisma denilir.’
29 As Imber and Akgündüz have
noted, Kemal Paşazade’s interpretation is
of more open architecture than that of his
great successor.
30 See Damad Efendi Shaykhizadeh’s
(d. 1667) Majma‘ al-anhar, a commentary
on Ibrahim al-Halabi’s (d. 1549) Multaqa
al-abhur (1974), p. 663, where Shaykhizadeh
comments on al-Halabi’s phrase
‘the land of the Sawad is the property of
its inhabitants’ (ard al-sawad mamluka
li-ahli-ha) by noting that ‘[this is true] for
us unlike the Shafi‘i whereas for him it is
waqf of the Muslim community and its
inhabitants are tenants’.
In his introductory statement to the
registers for Skopje and Salonica dated
1568, Ebussuud gives the two readings, the
Hanafi – that the lands of the Sawad of
Iraq are mülk, see İnalcık, ‘Islamization
of Ottoman laws on land and land tax’,