Governing property, making the modern state - PSI424

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criterion by which to interpret the treasury’s ten-year rule for the acquisition of
haqq al-qarar and by which to distinguish between the claims of different cultivators
to a single plot of land, when ‘the name in the register’ – detailed registers
no longer being kept – was not available as determining evidence of right.
Thirdly, bound up with the ambiguity concerning how to define the cultivator’s
right, whether as a subordinate office or as an ‘estate of production’, 116 is a
tension concerning the exclusion of close female relatives from succession to the
cultivator’s plough lot. This is unproblematic if the lot is conceived as a prerogative
of office but highly problematic when the lot is seen as an estate.
Fourthly, although by the middle of the eighteenth century the cultivator
appears freed of the controls on his subordinate office exercised classically by
the land administrator, he frequently appears as a shareholder in an ‘estate of
administration’ vested in the village corporation. It is often not the land administrator
but the village that manages the distribution of taxation.
Fifthly, although this chapter has drawn primarily upon the Damascene fetwa
collections, the Istanbul sheikh-ul-Islams of the eighteenth century appear to
have gone further than the Damascene muftis in recasting the cultivator’s lot
as an estate of production. There is considerable emphasis on the freedom
of a tapu holder to meet his tax obligations by rental of land rather than by
cultivation himself. Abdürrahim Efendi upholds the right of a man who has
lived in Istanbul for twenty years to retain the land he rents out in a village. 117
Several fetwas permit the tapu holder, with the accord of the administrator, to
pledge his rights to land against a loan. In the early eighteenth century both
the Damascene al-Ha’ik (d. 1702) and sheikh-ul-Islam Abdürrahim (d. 1716)
recognize transactions conducted under the legal rubric of rahn, although later
muftis will judge that this term should be restricted to mulk property. 118 Thus,
sheikh-ul-Islam Yenişehirli (d. 1744) will allow a reversible transfer (ferağ) against
a debt, if with permission of the administrator. 119 In the nineteenth century
this form of mortgage will be allowed on miri land under the legal rubric of
bey/ferağ bil-vefa, a legal category common in the eighteenth century for similar
loan transactions in icaretein vakıf (see Chapter 4). 120 Further evidence of the
property value of tapu rights lies in the occasional relaxation of the rule that
an administrator cannot delegate rights to himself, his descendants or his wife,
in a case where the mufti upholds the transfer if a wife pays more than the
standard rate for tapu rights. 121
With regard to the office of the administrator, although the ulema often
employ the shorthand ‘sahib al-ard’ in general discussions, when discussing cases
of contested legal competence they distinguish the power to litigate ownership
rights vested in officials of the registry as against the more restricted prerogatives
of a tax collector.
Lastly, the conceptual framework for the discussion of relations of administrators
and cultivators has changed. Classically, juristic debate concerning the nature
of right to miri land had been conducted under the rubric of agricultural tax
(‘ushr wa-kharaj, originally part of kitab al-sair). But from the later seventeenth
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