Governing property, making the modern state - PSI424

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tax revenue the timari or sahib-i arz carries out tasks of administration, including
the delegation of rights to land. The legal character of the administrator, whom
later jurists will term a naip (deputy) or vekil (agent) of the treasury, appears
not to be doctrinally problematic, unlike that of the cultivator.
With regard to the cultivator’s right to land, Kemal Paşazade judged that it
was obtained by purchase of the land or by inheritance from father to son(s).
Out of respect for Hanafi interpretation where ‘sale’ and ‘inheritance’ cannot be
used for such a quasi-property right, Kemal Paşazade stated that these legal forms
derive from the kanun not the şeriat. 35 Thus, Kemal Paşazade made no attempt
to legitimate the tapu fee or impartible devolution of rights at death in terms of
fiqh. By contrast, sheikh-ul-Islam Ebussuud made no reference to the kanun in
his legitimation of the Ottoman land regime. In what may be a first formulation,
Ebussuud followed earlier Hanafi doctrine by describing the cultivator’s relation
with the treasury as a defective rental (icare-i faside) – defective because for a
valid lease the duration of the rental contract must be specified whereas it is not
here – and by interpreting the dues (tapu resmi) cultivators pay for the tenure of
use-rights as a form of entry-fee or advance on the rent. 36 But in perhaps a later
formulation, Ebussuud avoids the term rent (icare), presumably because this can
entail limited power to further devolve land to others, rendering problematic the
control over transactions between cultivators exercised by the grant holder. Rather
Ebussuud interprets the cultivator’s right in terms of a delegation (tefviz) of userights,
or a loan (ariyet), or an object held in trust (vedia), categories which do
not allow the cultivator to transfer any part of his rights to land permanently. 37
In these formulations the tapu fee is again described as ücret-i muaccele, a fee
paid in advance for the use-rights of land. 38 Ebussuud here implicitly equates the
cultivator’s rights to those of an office holder – a subordinate, subject office to
be sure, but an office none the less. 39
The fetwas of Kemal Paşazade and Ebussuud were not written as highly
argumentative epistles for other scholars; even the longer of them remain didactic
and the shorter verge on the imperious. 40 In part this may reflect the attempt by the
office of the sheikh-ul-Islam to silence challenges to the legitimacy of the Ottoman
land tax system. By comparison with the doctrinal bricolage of the imperial
fetwas, the criticism to which we now turn built impeccably on the categories
of Hanafi fiqh.
A contemporary of Ebussuud, Taqi ’l-Din Pir ‘Ali al-Barkali al-Rumi, known
as Birgevi or Birgili in Turkish (d. 1573), has left us a learned counter-argument. 41
A similar argument can also be read in an anonymous fetwa of the second half
of the sixteenth century. 42 There is thus no reason to think that the argument
was unknown in mid-sixteenth-century Istanbul, but equally none to think that
either of these two versions represents the original formulation of the argument.
Given just how opposed its conclusions are to those of the sheikh-ul-Islam, it
is perhaps not surprising that both the statements were penned in Arabic not
in Turkish.
In the case of Birgili’s al-Tariqa al-muhammadiya, the arguments are tucked
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