Governing property, making the modern state - PSI424

Notes to chapters 3 and 4
taxes imposed on subjects in general by
oppressive rulers: ‘wa-laisa dhalika bihalal
wa-huwa haram ‘ala ’l-hukkam akhdhu-hu
min al-ra‘aya wa-laisat al-dafatir
wa-qawanin bi-muqtadi-hi li-hall dhalika
fi ’l-shari‘a al-muhammadiya fa-’inna
ghasb al-amwal bi-ghair haqq shar‘i haram
fi-ijma‘ al-muslimin wa-mustahillu-hu
kafir bi-’llah …’ In his fetwas al-Nabulusi
nevertheless recognizes the priority of the
entry in the register as normally establishing
a legally binding precedent for taxes.
114 Risalat takhyir, fol. 270b.
115 Al-Nur al-badi, ZAL.4400, fol.
146a.
116 This term, like that of ‘estate of
administration’ used below, is that of Max
Gluckman concerning hierarchies of right
in a different African context, The Ideas
in Barotse Jurisprudence (1965), pp. 91–2.
The terms have earlier been adapted
for the analysis of agricultural right in
Palestine and North India. See Firestone,
‘The land-equalizing musha‘ village’, in
Gilbar (ed.), Ottoman Palestine 1800–1914
(1990), p. 115 and Saumarez Smith, Rule
by Records (1996), p. 41.
117 Abdürrahim: Fetava, fol. 503a.
See also fol. 503b upholding the right of a
sister to claim land who, like her deceased
brother, lived in a town fifteen minutes
away from the land in question.
118 Al-Ha’ik: Bab mashadd al-maska,
fol. 9b and Abdürrahim: Fetava, fol. 514b.
See also SK.Esat Efendi 852, fol. 80, where
the kanun envisages a rehin of land rights
on the grounds of zaruret and permits, on
payment of the debt, the return of the land
to the original holder within ten years.
119 Yenişehirli: Behcet ül-Fetava,
p. 640. The published edition describes the
land held by tapu as vakıf whereas this is
only implied by the term for the administrator
(mütevelli) in some manuscript
copies, see ZAL.2600, fol. 295.
120 Yenişehirli: Behcet ül-Fetava,
pp. 260–62.
121 Abdürrahim: Fetava, fol. 505a.
122 Ibn ‘Abidin, ‘Nashr al-‘urf fi bina’
252
ba‘d al-ahkam ‘ala ’l-‘urf’, Majmu‘at
rasa’il Ibn ‘Abidin (n.d.), vol. 2, pp. 112–63.
123 Wa’il Hallaq appears to overemphasize
the first aspect in ‘A prelude to
Ottoman reform: Ibn ‘Abidin on custom
and legal change’, ‘New Approaches to
the Study of Ottoman and Arab Societies’
(1999), vol. 2, pp. 17–26. Parallel statements
concerning historical change in
legal doctrine can be found in the siyasa
literature. See, for example, Badruh Efendi
(d. 1671), Ahkam al-siyasa, ZAL.7147, fol.
6b.
4 Legal reform from the 1830s to
the First World War
1 The first issue of Takvim-i vakayi,
the official gazette of the empire, appeared
25.Ca.1247, 1 November 1831.
2 Unlike contemporary understandings
wherein kanun stands for Europeaninspired
positive law as against Islamic
shari‘a, the two terms could be fused in
Ottoman statecraft: see the phrase kavanin-i
şer’îye, employed in an important
petition advanced to the sultan by senior
administrators in late summer 1839,
analysed in Abu-Manneh, ‘The Islamic
roots of the Gülhane Rescript’, Die Welt
des Islam xxxiv (1994), pp. 191–2.
3 İslamoğlu: ‘Property’, pp. 33–4
characterizes the transformation marked
by the Land Code of 1858 by drawing
comparisons with other European states of
the nineteenth century.
4 Khoury: State, pp. 184–6 describes
a text in the Mosul Library that sought
to defend the estates of malikane holders.
We did not find any comparable text
in the Damascus Zahiriya collection.
There is a slight problem either in the
text or in Khoury’s reading of the same
(p. 185) where an argument parallel to
al-Nabulusi’s (compare p. 24) is given as if
in response by the author to al-Nabulusi.
5 Ibn ‘Abidin: al-‘Uqud, vol. 2,
pp. 187–8.
6 Scholarship has emphasized European
influence, notably of Canning, on