Governing property, making the modern state - PSI424

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holders of miri land to obtain the new deed and institute a system of printed title
forms and administrative registers for all transfers of land. 58 These instructions
put the onus of enforcement on the holder of land and senior provincial officials.
But no intrusive mechanism of survey was yet introduced, and the bureaucratic
personnel for title registration remained embryonic.
The Land Code and the tapu laws of the 1850s and 1860s introduced modifications
within an historically continuous vocabulary of legal regulation of miri
property. Certain of the greatest changes had already been imposed in the 1847 and
1849 laws: gender equality in the devolution of usufructuary right and freedom
to lease land without administrative permission. With its provisions concerning
partibility and mortgage, the Land Code completed the transformation of miri
usufructuary right into an estate.
A Damascene excursus
An insight into how Damascene ulema viewed the changes outlined above
can be had from a brief epistle concerning the nature of tapu right, al-Ikhbar
‘an haqq al-qarar, written by Mahmud ibn Nasib al-Hamzawi al-Husaini, mufti
of Damascus in 1284AH/1867–68. 59 It opens with some general remarks. 60 Al-
Hamzawi explains that people conduct transactions of waqf, sale, exchange,
subdivision, legacy, mortgage (rahn), dower (mahr) and gift for miri lands without
the permission of the holder of the raqaba in the mistaken opinion that the land
is their property to dispose of as mulk. Furthermore, certain jurists and muftis,
ignorant of the fact that issues of tapu derive from sultanic decrees, draw up these
invalid contracts according to fiqh; later in the epistle the author exclaims with
regard to such documents that Islamic judges have not been competent to draw
up tapu documents ever since the time of Ebussuud. Emphasizing his competence
to rule on these issues, al-Hamzawi states that he had forty years’ experience as
a member on the council, an employee and a mufti, and that he has studied the
fetwas of the ulema of both the Rum and the Arabs. 61
Three hundred years after the sixteenth-century debate concerning the legal
character of the tapu resmi al-Hamzawi takes up the old problem of the nature
of haqq al-qarar now enshrined in the Land Code. He opens by contrasting the
current usage of the term, where it signifies priority to use of land (conditional on
assuring cultivation and paying what is due to the holder of the raqaba, a right
established by ten years’ cultivation) with older usage where it referred to [rights
arising from] actual objects such as plantings and walls. Al-Hamzawi introduces
the judgment of Ebussuud – the payment for tapu rights is an advance rent
– and of Muhammad Bahaî 62 – tapu is [like] rent for waqf – before he proceeds
to remind his readers that haqq al-qarar, haqq tapu and mashadd maska are all
synonyms.
After these definitions, al-Hamzawi lays out his central argument concerning
the powers to transact held by the holder of the haqq al-qarar as opposed to those
that remain subject to the agreement of the owner of the raqaba, the government
official (ma’mur). 63 Al-Hamzawi’s argument here entails a certain sleight of hand.
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