Governing property, making the modern state - PSI424

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the provisions of the kanun stipulating that a cultivator who abandoned his lot
(kasr al-faddan) was liable to pay the tax upon it (a liability that passed to the
son after his father’s death) and that an administrator had the right within ten
years to return the cultivator to his village by force. 79 The restrictions on the
freedom of the cultivator to leave his land and to move from his village came
to be the focus of debate. The review below first considers the fetwa collections
penned by official Hanafi muftis of Damascus, before turning to jurists writing
as independent scholars.
Official Damascene muftis of the seventeenth and eighteenth century The seventeenth
century witnessed population movement and rural migration into cities.
Hence practical and not only doctrinal tension surrounded the principle that the
cultivator who left his lot was to be returned. The fetwas of the early part of
the century criticize violence exercised by political and military authorities but
do not reject the application of rules concerning kasr al-faddan or limits on the
movements of cultivators sanctioned by the kanun.
Beginning with the mufti ‘Abd al-Rahman al-‘Imadi (d. 1641), such issues
become prominent in fetwas. He describes as an innovation (bid‘a) contrary to
religious tradition the imposition by the hakim al-‘urf of a sum on anyone who
settles outside his village. 80 Nevertheless, ‘Abd al-Rahman formally rejected this
‘innovation’ only in the case of functionaries, students and scholars of religion,
whose exemption from such rules was in accordance with a sultanic order. 81 In
another fetwa ‘Abd al-Rahman describes a timar holder who brings a group from
one village to cultivate a ruined village. After they have been there for four years,
bedouins come and destroy the houses and crops. The timari then tries to force
the cultivators to return to the devastated village and to pay the kasr al-faddan
for the years intervening. ‘Abd al-Rahman refuses this outright. But even here
the judgment is not in conflict with the kanun since the cultivators fled after
destruction of their village by a third party. The mufti Isma‘il al-Ha’ik refuses
that the sons of a man who had moved to Damascus more than forty years earlier
could be obliged by the administrator of the village to return to live there, but
rather like ‘Abd al-Rahman al-‘Imadi he grounds this judgment in the will of
the sultan. 82 ‘Ali al-‘Imadi (d. 1706) likewise does not challenge the principles
of the kanun directly, but the extreme character of his examples suggests that
considerable injustice could arise from the application of such rules. His first
fetwa concerns a village abandoned for twenty years: ‘Ali al-‘Imadi denies that the
village head (ustadh al-qariya) has the right to return a cultivator to the village by
force. The second fetwa concerns a monk whose father had lived in a village
thirty years earlier and who has no property there; he judges that the people of
the village have no right to demand taxes ‘for the protection of persons’ from
the monk. The third fetwa concerns a man who a year earlier had married and
moved in with a woman in a village, only then to have vanished; ‘Ali al-‘Imadi
refuses to countenance the attempt of the people of his original village to force
his wife to move there so as to make up the taxes for which her husband had
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