Governing property, making the modern state - PSI424

than the judgments of the sultan’s sheikh-ul-Islam. 46 Birgili’s doctrinal rigour
notwithstanding, it was not his scholastic argument that was to hold sway. Rather
the power of practice and of the imperial office of the sheikh-ul-Islam was to
define Ottoman Hanafi doctrine on land law.
These debates reveal tensions both practical and ideological.
At a practical level, Birgili’s description of everyday exchanges of land reveals
that there was a kind of market wherein cultivators exchanged their rights to
lots and drew up contracts governing factors of production such as work in
ploughing, weeding and harvesting. Yet this was a market heavily conditioned
by administrative control over permanent exchanges of lots, subject to a tapu fee
extracted by the timari. Thus, as Kemal Paşazade and Birgili state, cultivators
and administrators employed terms such as sale and rental when referring to such
contracts, but the conditions required by fiqh for such contracts were absent.
At a more ideological level, legal models of right were developed under the
Mamluks to articulate hierarchically disposed rights. This was what Ibn Qutlubugha
elaborated using the vocabulary of lease, and further innovations to
contracts of lease were to be introduced under the Ottomans concerning rights
in waqf properties. 47 But Ottoman jurisprudence resisted such a conceptualization
for rights in miri land. Thus, the timari, or what became the standard legal
abstraction, the sahib-i arz, acted as an agent or officer of (rather than co-owner
with) the state. And what the cultivator owed was really tax and not actually
rent, even though he was no more a proprietor than he was a lessee. Moreover,
the legal vocabulary in which the rights of the cultivator were expressed was
composed of terms governing rights to offices not to mülk property. 48 Similarly,
the devolution of the cultivator’s plot from father to son(s) follows the model
for the devolution of office not of mülk property. Hence, in many ways Ottoman
jurisprudence treated the cultivator more as a quasi-office entailing rights over
objects and produce than as a subject contracting property through lease.
In conclusion to this review of the central debates of the sixteenth century we
may ask why Ottoman jurisprudence did not proceed to theorize the cultivator’s
legal persona as an office in the hierarchy of delegation of powers. Why was such
a definition to remain implicit in the terms characterizing the cultivator’s rights
to land rather than being made explicit?
The answer may be political. Ottoman political ideology rested on a distinction
between those who received tax (the asker or military, later more generally office
holders, those with a mansıp or vazife) and those who paid tax (the reaya or flock:
cultivators, artisans and traders). The administrator (sahib-i arz) was regarded
as an office holder, a deputy of the state who received tax payments. Ottoman
practice, whereby the cultivator paid an entry-fee (resm-i tapu) for his lot and
was subject to the approval of the administrator for any contracts concerning his
land, proved difficult to legitimate in terms of Islamic conceptions of propertyright.
Likewise, Ottoman administrative practice governing the devolution of
the cultivator’s plot proved difficult to justify in terms of Islamic jurisprudence.
The practice entailed impartible devolution to son(s), itself the pattern for the
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Debate in the 16th century