Governing property, making the modern state - PSI424

Notes to chapter 3
cites Masters, The Origins of Western
Economic Dominance in the Middle East
(1988), pp. 153–64 and Rafeq, ‘Economic
relations between Damascus and the
dependent countryside, 1743–1771’, in
Udovitch (ed.), The Islamic Middle East
(1981), pp. 674–5.
48 Johansen: The Islamic Law, p. 103,
citing al-Ramli, al-Fatawa, and Ibn
‘Abidin, al-‘Uqud.
49 Ibn ‘Abidin, Radd al-mukhtar
‘ala ’l-Durr al-mukhtar (n.d.) vol. 3,
p. 266: ‘lakin al-waqi‘ fi zamani-na anna
’l-musta’jir yastajiru-ha li-’ajl akhdh
kharaja-ha la li-’l-zira‘a wa-yusamma
dhalika iltizaman wa-huwa ghair sahih
kama afta bi-hi al-Khair al-Ramli’.
50 See the fetwas of Muhibb al-Din in
Fatawa bani ’l-‘Imadi, ZAL.5864, fols 6b
and 77, of ‘Abd al-Rahman in ZAL.5377,
fol. 55a, and ‘Ali and Muhammad
al-‘Imadi in al-Nur al-mubin, ZAL.7508,
fols 69a and 72a.
51 Fatawa bani ’l-‘Imadi, ZAL.5864,
fols 139, 190.
52 Fatawa, ZAL.2684, fol. 75.
53 Feyzullah Efendi (d. 1703), Fetava-yı
Feyziye (1266/1850), p. 165.
54 Abdürrahim Efendi: Fetava,
fols 25b–26b and Yenişehirli, Behcet ül-
Fetava (1872), pp. 192–3.
55 Majmu‘ Fatawi al-Muradiya,
ZAL.2642, fol. 326.
56 The tradition also protects the agent
on the ground. See Anonymous, Majmu‘a
fi ’l-fatawi, ZAL.6023, fol. 46b, where the
mufti judges that a person hired to collect
the taxes on the basis of a share in the
profit cannot be made to pay part of the
loss, in the case of such being made on
tax collection. This judgment is likewise
common in the Turkish sources.
57 Cuno, ‘Was the land of Ottoman
Syria miri or milk?’, Studia Islamica
lxxxi/1 (1995), pp. 134–7, argues that by his
classicism al-Ramli sought to redefine most
of the land of Syria as mulk not miri land.
This interpretation appears excessive. As
well as defending the rights of waqf against
248
state administrators, Al-Ramli may have
sought to defend the interests of private
landowners and waqfs against the stronger
rights of cultivators entailed in recognizing
maska rights on waqf as on miri land.
58 Fatawa bani ’l-‘Imadi, ZAL.5864,
fols 116, 133b.
59 Ibid. fols 201, 292 and 52.
60 Ibid. fol. 45 for a fetwa of Muhibb
al-Din and fol. 133b for a fetwa by ‘Abd
al-Rahman.
61 See Ibn ‘Abidin: al-‘Uqud, vol. 2,
p. 181. Ibn ‘Abidin does not agree with
‘Abd al-Rahman’s judgment that the
‘ploughing’, i.e. the value of labour, as
opposed to the crop itself, can be sold.
62 In one fetwa ‘Abd al-Rahman al-
‘Imadi, ZAL.5377, fol. 53b, describes the
right arising from ownership of a building
on waqf land as ‘ala sabil al-ihtikar, not
as kirdar.
63 Bab mashadd al-maska min fatawi
al-shaikh Isma‘il al-Ha’ik rahima-hu ’llah,
ZAL.5677, fols 9b–10b.
64 Ibid. fol. 9b, ‘aradi bait al-mal la
turath wa-’innama yadfa‘u-ha man fawwad
al-sultan amra-ha ilay-hi ila ’l-qadirin
‘ala islahi-ha min al-rijal wa-la hazz
li-’l-nisa’ fi-ha’. This statement parallels al-
Nabulusi’s apparent exclusion of women
from succession, compare p. 25 above.
65 Al-Ha’ik: Bab mashadd al-maska,
fol. 9b writes of a rahn. See p. 38 on the
legal status of such ‘mortgages’.
66 See Rabie, The Financial System of
Egypt 1169–1341 (1972), p. 66: ‘The most
important among the lesser clerks of the
iqta‘ was the holder of the shadd called
mushidd or shâdd.’ It is true that the term
shadd means to plough in Syrian Arabic,
but its construction in the phrase mashadd
al-maska suggests that it may have an
origin in Mamluk tax assessment.
67 The doctrinal position was also
presumably developed as a defensive strategy
against the doctrines of other schools:
against Maliki doctrine which allows
longer leases than the Hanafi three-year
lease of waqf land, against the Hanbali