Governing property, making the modern state - PSI424

the ‘later scholars’ (al-muta’akhkhirun) that the sultan could sell treasury land
if there were a need or an interest (maslaha) in so doing. Al-Nabulusi accepts
that general interest alone suffices to justify sale and then goes on to assert that
a deputy would be similarly entitled to sell land. Al-Nabulusi’s solution to the
problem of the legal status of these transactions is not entirely satisfying. Unlike
Kemal Paşazade who described such a sale as in accordance with kanun not fiqh,
al-Nabulusi legitimates it simply by reference to late doctrine according the sultan
the right to sell treasury land.
In line with his emphasis on office, al-Nabulusi then justifies the exclusion of
female heirs from succession to such office. 30 Although he here appears to have in
mind the administrator of land, one of his fetwas makes clear that he believes a
similar principle of male succession applies to the cultivator’s lot. 31 Al-Nabulusi
notes that rights arising from office devolve entirely in the male line, unlike the
inheritance of property; he proceeds to apply this rule systematically, in a manner
that neglects to mention the allowance made for a daughter or a sister to take on
land by payment of tapu fees in the absence of a male descendant.
Concerning the administrator of land, al-‘Imadi and al-Nabulusi share two
understandings. First, they conceive the office of military grant holder in terms of
the actual role of the administrator in the management of agricultural production.
Second, the administrator is not a property-holder but an officer of the state.
In the fetwas of al-Nabulusi’s contemporary Muhammad al-‘Imadi (d. 1723)
reference is made to the administrator of miri land acting by virtue of a malikane.
32 But in another fetwa concerning a waqf village the powers of the
malikane holder are described as those of a tax collector, bound by the specific
terms of his appointment, whereas the waqf administrator holds effective legal
power. 33 The malikane holder thus could enjoy the prerogatives of an administrator
of land or could function as a mere tax collector. The basic distinction, and
a tendency to restrict the legal power granted a tax collector, mark the fetwa
tradition through the eighteenth century: ‘if a village pays ‘ushr to a timari who
then claims that he has [the right] to administer land and to collect the tapu fees’,
so long as he holds only the tax, no consideration should be given to his claim
that the cultivator requires his permission. 34 The emergent distinction between
tax collector and land registrar will prove critical to the nineteenth-century
reinterpretation of the cultivator’s right as less a prerogative of office and more
a power over property.
Tax collection and land administration: the village and the tax farmer
Muftis of the seventeenth century were concerned with the application of
principles for the distribution of sultanic, as opposed to Islamic, taxes, within
a tradition that, from the end of the twelfth century, had distinguished between
taxes on property and those on the person (li-hifz al-amlak, li-hifz al-ru’us/nufus).
35 Hence in one fetwa where a timari attempts to tax his villagers for land
they cultivate in another timar, Muhammad al-‘Imadi judges that because taxes
belong to the authority over the land in question, the claim is invalid. 36 In a
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Debate in the 17th and 18th centuries