Governing property, making the modern state - PSI424

injustices. The cultivators had lived elsewhere, marrying and bringing up children,
when thirty years later the manager (nazir) of the waqf sought to force them to
return or to pay all they owed on the lands they had abandoned. With regard
to waqf land, no scholar ever considered the forcible return of cultivators to be
licit. 96 It is, rather, the argument concerning state land that is complex. Essentially
al-Ramli gives three options. First is the opinion of Ibn Nujaim. Second is the
classical Hanafite doctrine concerning kharaj land, whereby when a cultivator is
incapable, or disappears or flees, the sultan may give out the land to another to
cultivate or may even sell it should no one be willing to rent the land; or, failing
that, the sahib al-ard can lend a cultivator the sum needed to put the land in
cultivation. And third, al-Ramli notes the dominant interpretation of the later
school rejecting sale and rental of the land. At the end of this review of Hanafite
positions, al-Ramli concludes that the restricted power accorded land administrators
in all of these interpretations means that they are not allowed to use force
against the cultivator. Such acts are unjust and wrong, never to be permitted by
God. 97 Al-Ramli goes on to argue that the legal tradition, concerned with assuring
cultivation of land, never entered into discussion of forcible coercion of the
cultivator. Although the legal principles advanced by al-Ramli would appear to
rule out forcible return, al-Ramli nevertheless discussed a case where cultivators
had fled from heavy extra taxation and injustice, in other words, a case where
the kanun itself would excuse the flight of cultivators.
There are in the Zahiriya collection two epistles concerned with the forcible
return of the cultivator: Kitab Nusrat al-mutagharribin ‘an al-awtan ‘an al-zuluma
wa-ahl al-‘udwan of Yasin ibn Mustafa al-Biqa‘i al-Dimashqi al-Faradi al-Hanafi
(d. 1095/1684) and ‘Abd al-Ghani al-Nabulusi’s Takhyir al-‘ibad fi sukna al-bilad. 98
Both bear comparison with al-Ramli’s arguments since, in different ways, each
departs from the formal legal reasoning of the great jurist of al-Ramla. Like the
former, al-Faradi discusses a case not in contravention with the kanun and sultanic
decrees: a man of religion from the Biqa‘ who had lived outside his village for
more than fifteen years contested the order to return to pay the head tax, rasm
ra‘iya, in the village where his name appeared in the register.
The structure of al-Faradi’s epistle is complex, blending moral and legal arguments.
It opens noting that migration (hijra) has been a tradition of the prophets
and that men of religion have a duty to go to where they may practise their
faith. After an outline of the appeal that led to the epistle and of the arguments
which convinced the high judge (qadi al-qudat) of the justice of the plaintiff’s
cause, a section follows on unjust oppression (zulm) where the second reference
after al-Baidawi’s commentary on the Koran is to Ebussuud’s similar judgment
that wrongdoers will have no rest from punishment on the day of resurrection. 99
Injustice was prohibited by all religions, which safeguard life, lineage, honour,
reason and property. 100
Al-Faradi then structures his discussion of unjust oppression by type of source.
He begins with citations from the Koran, before prophetic tradition (hadith)
on the punishment due the wrongdoer in the here and now. Migration (hijra)
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Debate in the 17th and 18th centuries