Governing property, making the modern state - PSI424

Part one | 3
is commended, forcible return and extortion of money forbidden especially if
fifteen years have passed, prevention of unlawful innovation (bid‘a) commended,
and punishment of the wrongdoer to be administered as judicial punishment
(ta‘zir). 101 Al-Faradi next considers the contributions of the ulema to these issues,
reviewing Hanafi doctrines on land, the imposition of kharaj tax, the status of
waqf and treasury lands, citing Ibn Nujaim and later scholars on rental. 102 Lastly,
he considers fetwas, opening with a fetwa of sheikh ‘Abd al-Rahman al-‘Imadi
which had been the object of legal opinion by the Damascene Shafi‘i, Maliki and
Hanbali muftis of the day, before citing a remarkable collection of fetwa opinions
of Shafi‘i as well as Hanafi scholars from Ibn Nujaim to al-Ramli. 103 Central in
the citations are references to the Shafi‘i Taqi ’l-Din al-Husni who went beyond
any Hanafi opinion to condemn as denying God (kufr), not simply as injustice
(zulm), the practice of obliging a cultivator to till the land and of forcing his
return to his village. 104
Al-Faradi then reviews jurists’ writings on unjust administrative law (‘urf)
and the punishment due a tyrannical ruler. 105 In a last section, al-Faradi makes
clear that all the evidence from the Koran, prophetic tradition (sunna) and the
consensus of the jurists proves that the departure of a man from his homeland
is judged either a necessary, a commended, or a permitted act. 106 Two further
short sections follow, the first a juristic condemnation of rental (ijara) of tax
revenue, the second a discussion of conflicts of interest, for example, that of a tax
collector against a cultivator, where the testimony of one party against the other
is not admissible in court. 107 Closing with the figure of a repentant wrongdoer,
al-Faradi examines with great care the psychic moments of repentance: awareness,
remorse, self-accusation, emotional suffering, mental torment and pious
expiation. 108 The epistle is a tour de force: it does not contest the letter of the
kanun and yet provides a devastating vision of the suffering of both the injured
party and the repentant wrongdoer. But al-Faradi opens the gate to repentance
since, unlike al-Husni, he argues that the issue is one of tyranny (zulm) not
godlessness (kufr).
‘Abd al-Ghani al-Nabulusi will go beyond al-Faradi in this regard, without at
any point citing al-Faradi’s epistle. Although ‘Abd al-Ghani starts with a similar
case, where men left a village ‘a long time before’, and where their mistreatment
was condemned by jurists of all the legal schools, he makes reference to only three
scholars: the Shafi‘i Taqi ’l-Din al-Husni, 109 al-Ramli, and once briefly Ebussuud.
‘Abd al-Ghani dismisses the issue of tax obligations and focuses on that of forced
return. Although al-Nabulusi refers to the two fetwas of al-Ramli, he does not
follow the latter in constructing an argument on the basis of the legal freedom of
the cultivator as lessee of land, but rather on the cultivator as belonging to a yet
more fundamental category of agent. ‘The believer is his own lord’ (al-mu’min
amir nafsi-hi) and hence it is heinous for political authority to try to restrict to
place of origin a man who seeks religious knowledge. But the cultivator is not
always identifiable with the legal person of a believer. Rather, the freedom of a
man to live where he chooses is true even for ‘dhimmis, Jews and Christians, or
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