Governing property, making the modern state - PSI424

Citing Ebussuud to the effect that all contracts (mu‘amalat) are invalid without
the permission of the sibahi, al-Hamzawi then interprets this phrase in a decidedly
more nineteenth-century fashion as not governing those ‘revocable (ghair lazima)
contracts such as sharecropping, rental, loan, deposit and entrusting’. 64 According
to al-Hamzawi, the logic behind this list of exceptions is that the haqq al-qarar
is not transferred thereby from one person to another unlike the contracts of
legacy, marital alimony, gift, pledge (rahn), waqf, badal sulh and sale. Al-Hamzawi
is aware that he is forcing matters with this reading: thereafter he turns to the
judgment of al-Ramli prohibiting unilateral partition, sharecropping and rental,
as well as that of al-Hanuti prohibiting subletting on the analogy of sukna in
waqf proper. 65 Al-Hamzawi gets round this powerful invocation of earlier tradition
by a legal genealogy that leaps from Ebussuud and Kemal Paşazade – although
al-Hamzawi cites no phrase of the latter – to the Land Code, a genealogy which
shows that ‘for us permission was given’ for such transactions. 66 Here al-Hamzawi
comes close to suggesting an Ottoman, or even a quasi-Turkish (‘ulama’ al-Rum),
genealogy as against one based on Arabic sources.
Al-Hamzawi next turns to the provisions of the law concerning succession to
usufructuary rights in miri land. He closes off all contestation with a modern
phrase: the issue is one of the kanun not of the Koran. 67 The rest of the epistle
summarizes and expands the account of powers arising from haqq al-qarar
before closing with a justification of the identical rules governing acquisition,
disposal and devolution of usufructuary right in waqf lands created from miri
land. As we have seen, a convergence of the forms of usufructuary right between
miri and waqf land was not an innovation of the nineteenth century. But two
innovations in the law appear to have encountered opposition in Damascus:
full gender-equality in succession and the capacity of the cultivator with haqq
al-qarar on waqf land to sublet. The mufti closes with the argument that it
would be best if the doctrinal choice of the Commander of the Faithful [the
sultan] governing succession in the lands of the Muslim treasury were also
applied to the lands of true waqf: there is no prohibition against this in al-shar‘
and a single mode of succession to waqf and miri lands would be more elegant
and discourage disputes among the heirs. 68 Essentially this is what central law
would begin to ensure as the state increasingly took waqf lands into bureaucratic
administration.
Al-Hamzawi’s epistle is both a statement by a jurist of the Tanzimat and a
response to arguments advanced by ulema of Damascus, who drew upon Arabic
Hanafi jurisprudence to counter legal change. The strategy adopted by the mufti,
an Ottoman legal genealogy that passed straight from Ebussuud to the Land
Code, does not represent a well supported legal argument; rather like some of the
sixteenth-century sheikh-ul-Islam’s fetwas, it resembles an intellectual decree. The
door is slammed on the more complex intellectual genealogy of Arabic Hanafi
jurisprudence with its roots in the Mamluk period and before. The mufti’s aim
appears to be to silence counter-arguments advanced by Syrian ulema. Perhaps
such opposition lay behind the sultanic decree of 1862, on recommendation of
49
Legal reform from the 1830s