Governing property, making the modern state - PSI424

a daughter, followed by a brother or sister living in the village, could exercise a
preferential claim (ahakkiyye) to take on the lot by payment of the tapu fee. 25
The imperial order introducing a right for a daughter stated that, were daughters
unable to claim any part of their father’s land, they would be deprived of that
part of paternal income spent on maintenance or improvement of the land. In
this manner, justification of female rights made reference to a distinct budget
of individual property. The most important elements of this property arising
from work and investment were trees or vines, walls, mills and buildings as well
as livestock, agricultural implements and personal belongings. The distinction
between this personal property and the cultivator’s lot was maintained: unlike the
former, the lot could not be sold for debt or bequeathed, nor, as we have seen,
inherited according to the terms of Islamic fiqh governing mülk property. 26
Such were the broad rules of the classical land regime, which the Ottoman
muftis took for granted when debating legal relations between state, administrator
and cultivator. The two great imperial muftis of the sixteenth century, Kemal
Paşazade (1525–34) and Ebussuud (1545–74), addressed this task. 27 For both,
agricultural land belonged to the imam/treasury. Kemal Paşazade notes, however,
that in the Ottoman case the exact history of how lands came to the treasury is
unknown, some (arazi-i havz, ‘impounded lands’) having accrued to the treasury
through the inability of cultivators to assure its cultivation and other (arazi-i
memleket, ‘crown lands’) through the disappearance or death without issue of
its owners. 28 This reading respects earlier Hanafi interpretation whereby a basic
presumption of individual ownership was overwritten by historical events. 29
Ebussuud, by contrast, abandoned this reasoning, offering two explanations
for state ownership. The first referred to the interpretation advanced by ‘certain
schools of Islamic law’ that the area of the Sawad of Iraq had become property
of the treasury at the time of conquest. 30 Here the most prominent Hanafi scholar
of all time went beyond his school in justification of Ottoman practice. And in
a second interpretation Ebussuud abandoned established doctrinal arguments,
advancing an interpretation on the basis of public interest or necessity. 31 Arazi-i
memleket was originally haraç land but – in the translation of Colin Imber – ‘if
it had been been given to its owners, it would have been divided on their deaths
among many heirs, so that each one of them would receive only a tiny portion.
Since it would be extremely arduous and difficult, and indeed impossible to
distribute and allocate each person’s tribute [haraç], the ownership of the land was
kept for the Muslim treasury, and [the usufruct] given to the peasants by way of a
loan.’ 32 In this fetwa Ebussuud justifies state ownership in terms not of history or
school doctrine but of the need for impartible devolution of cultivators’ lots.
Concerning the grant holder, Kemal Paşazade defined the timar as a form of
ikta in which the grant holder possesses the right to collect customary dues and
Islamic taxes. 33 The term for this right is hakk-ı karar, denoting a power to act
with regard to a property but not a property right itself in the fiqh tradition. 34
Ebussuud states rather little concerning the nature of the timari’s right, but his
fetwas make clear that he regards it as an office where in return for part of the
15
Debate in the 16th century