Governing property, making the modern state - PSI424

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others died creating a shortfall of tax payments (wa-‘alay-hi mal maksur). Zaid
wanted to impose this [tax] on those present [in the village] without their having
given legal surety and with no legal basis.’ 89
The Damascene muftis never embraced the principles of kasr al-faddan or
al-naql jabran with any enthusiasm. Hence their fetwas concern rather extreme
cases in which the mufti can reject the particular application of such measures.
Yet the officially appointed Hanafi muftis of Damascus do not frontally oppose
the kanun regulations. Nevertheless, Hamid al-‘Imadi’s citation of Shafi‘i jurists
in support of the doctrine that the cultivator was a free contracting agent marks
a change in the mid-eighteenth century.
In his commentary on Hamid al-‘Imadi’s fetwas, ‘Ibn ‘Abidin omits the second
fetwa and does not himself comment on the issue. 90 This suggests that, for him,
it was a dead letter.
Jurists writing independently of office Apart from ‘Abd al-Rahman al-Imadi’s
reference to a sultanic order, ‘Abd al-Ghani al-Nabulusi’s fetwa on a fetwa, and
Hamid al-‘Imadi’s reference to Shafi‘i sources, the judgments of the Damascene
muftis do not make reference to sources in defence of their judgments. Yet there
was a reasonable chain of Hanafi jurisprudential reflection on the legal person
of the cultivator of which they were doubtless in some measure aware.
The issue had arisen following the Ottoman conquest of Egypt. Both Zain
al-Din Ibn Nujaim (d. 1563) and his brother had addressed the topic. Ibn Nujaim
wrote:
We have already explained that the land of Egypt is not taxed but rather rented, so
the cultivator owes nothing if he leaves the land and ceases renting; he is subject to
no forceful obligation as a result and it should be known that if some cultivators
abandoned agriculture and live in a city then they owe nothing. Hence what some
unjust persons do in harming the cultivator is prohibited especially if he wants to
devote himself to the Koran and study as a student at al-Azhar mosque. 91
Ibn Nujaim here builds his argument upon the late Mamluk interpretation of
the relation between cultivator and administrator as one of rent. The character
of the contract defines the relationship.
Ibn Nujaim’s argument concerning the freedom of movement of the cultivator
as lessee of land will be cited in full in Khair al-Din al-Ramli’s (d. 1671) fetwa
collection. 92 Al-Ramli distinguishes between kharaj land, on which the cultivator
has an absolute duty to pay tax if he leaves his plot, 93 and the lands of Sham,
where he states that, if the legal situation is as Ibn al-Humam described for
Egypt, the relationship between administrator and cultivator is one of rent. 94
Albeit tentatively, al-Ramli draws a genealogy of the legal status of land in Syria
to late Mamluk jurisprudence and distances himself from the interpretation of
Ebussuud and Ottoman jurisprudence. 95
A major fetwa of al-Ramli concerns a village, one-half waqf and one-half
sultani (i.e. miri), many of whose inhabitants fled from heavy extra taxation and
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