Governing property, making the modern state - PSI424

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remained fixed regardless of change in the religious status of its owner arising
from sale of the land or conversion of its owner to Islam. Jurists justified this
principle, which served to divide the religious status of the owner from the tax
status of the land, in terms of the need to preserve revenue. 6
The basic understanding that ownership was individual was likewise reflected in
a principle governing litigation over ownership, whereby the person with ‘a hand
on the property’ (wad‘ al-yad), i.e. in possession, was presumed owner, the onus
being on the claimant to disprove that presumption. Unlike other schools of law,
classical Hanafi doctrine, while not excluding the possibility of the ruler/imam
designating conquered land as waqf (mortmain) or as property of the treasury,
treated such a possibility as exceptional and anything but the rule for territory
conquered. 7
Hanafi doctrine under the Mamluks
The new doctrine articulated in the fifteenth century viewed ownership of
agricultural land not as arising from possession by individuals but as vested in the
treasury/imam and delegated in different forms to intermediaries and cultivators.
Kamal al-Din Muhammad, known as Ibn Humam (d. 1457), is recognized by
Hanafi tradition as having first articulated the doctrine concerning land ownership
adopted by subsequent jurists of the school. 8 Ibn Humam developed an historical
argument to explain a transition of such magnitude: as a result of the successive
deaths of its proprietors the land of Egypt had passed entirely to the state
treasury. 9 The doctrine of escheat to the treasury was ancient, but its extension
to all the lands of the Mamluk domains in justification of treasury ownership
of land marked a radical departure from the doctrine of earlier centuries. 10 The
earlier doctrine was not formally rejected nor was it forgotten; rather, history
– in the form of the gradual death without heirs of tax-paying owners – had
simply rendered it obsolete.
Once treasury ownership of land became the norm, debate was to turn to how
secondary rights, required to farm the land, were to be conceived. At issue were
the legal statuses of cultivator and administrator and the nature of the payments
made by the first to the second. These debates were pursued under the rubric of
land taxation (‘ushr wa-kharaj) in legal compendia and specialized epistles.
In earlier doctrine tax was due from an owner of land to the Muslim treasury.
But land was now the property of the treasury. Ibn Humam therefore noted:
‘indeed what is taken nowadays is in lieu of rent (badal al-ijara) not tax (kharaj)’. 11
A student of Ibn Humam, shaikh Qasim ibn Qutlubugha (1399–1474), in an
epistle on the question of rental of an administrative grant, went on to explore
the consequences of this definition for the legal status of the cultivator and
the administrator. 12 The administrative grant (iqta‘) had earlier been treated
in accordance with the principle of individual property right, notably in the
foundational ninth-century text, Kitab al-kharaj of Abu Yusuf. Abu Yusuf had
distinguished between two types of iqta‘: either an outright grant of property,
usually of uncultivated or abandoned land, or the partial or complete granting
12