Islamic Law on Peasant Usufruct in Ottoman Syria: 17th to Early 19th Century
ISLAMIC LAW ON PEASANT USUFRUCT IN OTTOMAN SYRIA – book Sample
Contents – ISLAMIC LAW ON PEASANT USUFRUCT IN OTTOMAN SYRIA
- Acknowledgements .. vii
- Introduction .. 1
- Fatāwā as a Source of History .. 5
- Muftīs .. 9
- tenancy and Sharecropping in the Context of Peasant Studies, Islamic Legal History, and the Scholarship on
- Sharecropping .. 15
- Peasant Studies .. 16
- Islamic Legal History .. 19
- Literature on Sharecropping . 20
- Chapter Breakdown .. 25
- Government, Economy, and the Administration of the Land
- tenure System in Ottoman Syria . 27
- Government and Economy .. 27
- Environment and Agriculture . 30
- Administration of Lands .. 31
- State Lands .. 33
- the Ḥanafī Law on Land tenure . 35
- Authority and the delegation of Power . 39
- Waqf Lands .. 42
- Characteristics of Waqf .. 42
- distribution of Waqf Income . 45
- Supervision and Oversight of Waqf Properties . 50
- Exchange/Sale of Waqf Property . 55
- Reasons for Establishing a Waqf . 58
- Conclusion .. 64
- tenant and Sharecropper Obligations on State and
- Waqf Lands .. 66
- the Evolution of Ijāra and Muzāraʿa . 66
- Ijāra .. 66
- Muzāraʿa .. 68
- .vi contents
- Contractual Limitations on Sharecroppers under Muzāraʿa
- and Musāqāt .. 71
- Sharecropper/tenant Obligations to State Officials and Waqf
- Overseers .. 77
- State Concerns Regarding Cultivation . 77
- the Concerns of Local Jurists Regarding Cultivation . 82
- Waqf Lands .. 86
- the Payment of taxes .. 97
- Conclusion .. 103
- defining Usufruct Rights and Regulating Fair Rent . 106
- delineating Possession Rights: Kirdār, Ḥaqq al-qarār,
- Mashadd maska .. 106
- Regulation of Fair Rent .. 119
- Limits on the Waqf Administrator’s Power vis-à-vis
- Cultivators .. 125
- the Tīmār System and Limits on State Authority . 133
- Conclusion .. 139
- Upholding the Integrity of Sharīʿa vis-à-vis Qanūn . 142
- Qanūn/Sharīʿa debate .. 142
- Peasant Mobility .. 144
- Women’s Usufruct Rights .. 152
- Women’s Access to Private Property . 154
- the transfer of Usufruct Rights . 156
- Jurisdiction over Waqf Lands .. 165
- Conclusion .. 170
- Conclusion .. 173
- development and Land tenure . 174
- Justice defined .. 178
- Local Law and Ottoman State Law . 180
- nineteenth-Century Land Reform . 183
- the Law, State, and Society .. 186
- Bibliography .. 189
Scholars have used Islamic legal sources, including fatāwā (legal opinions) and court records, to reconstruct the social and economic history of various regions of the Ottoman Arab world, enriching our understanding of the status of women, rural/urban relations, the interaction between state and local forces, the evolution of land tax and rent, and the nature of agrarian relations and landholding.1
While the research on peasants and land tenure has contributed to our understanding of peasant social and economic life from the sixteenth through the nineteenth century, it has provided little systematic analysis of the laws governing peasant usufruct holders (sharecroppers or lessees) vis-à-vis landlords, overseers, and the state in general.
This study aims to analyze how Ḥanafī law, as evidenced in fatāwā and legal commentaries from seventeenth- through early nineteenth-century Syria, legally defined sharecropping and tenancy agreements, and tenant/ landlord rights and obligations. With the increasing prevalence of share- cropping and leasing arrangements on state and waqf (religious endow- ments) lands by the seventeenth century, the study of the law becomes particularly significant.
The majority of cultivable lands that were share- cropped or leased out to cultivators were either state or waqf lands; most mulk property (private property) was concentrated in urban areas where one found small scale orchards or vegetable gardens.2
While mulk lands were also leased or sharecropped out to farmers, this book examines the nature of such contracts or cultivation arrangements on state and waqf lands. The rationale for this is twofold. As indicated, the majority of arable lands were in fact designated as either state owned or religious endowments. In addition, this study takes as its center of focus legal thinkers’ definition(s) of cultivator rights and obligations on lands with a public dimension to them.
According to the existing scholarship on land tenure in the Middle East, the status of peasant cultivators gradually eroded after the sixteenth century due to two different processes: the implementation of the Ottoman state land system and the subsequent decline of this system and the institutions governing it.
According to the first perspective, the status of peasants was jeopardized with the implementation of an Ottoman land regime that transformed peasant proprietors into sharecroppers and ten- ants, increasingly privileging the rights of a rising rentier class.3 Propo- nents of the second line of thought argue that the usufruct rights accorded tenants under the Ottoman state land system (tīmār) were in turn jeop- ardized by the decline of this system and the rise of tax-farming (iltizām) and large landlordism during the seventeenth and eighteenth centuries.4
Thus, in the process of these transformations, small peasant proprietors were transformed into legally underprivileged tenants and then into exploited/oppressed tenants who experienced injustice at the hands of both a larger legal system (which during the seventeenth and eighteenth centuries came to privilege tax farmers) and abusive landlords.
As will be illustrated, while tenancy and sharecropping arrangements on agricultural lands were prevalent, the legal system ensured against the rise of an oppressive land system by balancing the rights and obliga- tions of tenants and landlords.
This discourse of balance continued up through the late eighteenth and early nineteenth centuries and played a role in ensuring the adaptability and longevity of the Ottoman land system. Jurists, however, were also adamant about upholding the integrity of Islamic law (or sharīʿa, often to the benefit of peasants themselves, including female cultivators) when they felt the state had overstepped its bounds.
Overall, continuity and evolution rather than displacement and decline characterize the development of the land regime during this period. In fact, the sources themselves make little mention of the exis- tence of large scale tax farms in the region.
Furthermore, both the state and local representatives of the law dealt firmly with transgressions on the part of provincial officials. Ultimately, the integrity of state and waqf lands legally speaking hinged on a secure peasantry, proper and efficient cultivation, and just landlords.
Legal officials of the period upheld peasant usufruct rights not only to ensure the security and productivity of arable lands, however, but also to protect inherent rights due to cultivators as individuals. Thus, in pro- viding peasants with a strong sense of ‘ownership’ over the lands they worked, seventeenth- and eighteenth-century legal thinkers laid the foundations for nineteenth-century transformations in the land system.
The latter changes must be understood in the context of laws articulated by early modern jurists at the local level, rather than solely treated as a by- product of external pressures or the 1858 Ottoman Land Law, both of which have been traditionally portrayed as the driving forces behind land privatization.
Fatāwā, legal treatises, and commentaries provide insight into the legal reasoning employed by jurists in formulating land tenure laws vis-à-vis sharecroppers and tenants on state and waqf lands. The evolution of legal thought, however, was intimately tied to an ever- changing reality. Simi- lar to Richard Van Leeuwen’s study of the legal framework of the waqf institution in Ottoman Damascus, this study adheres to the Bourdieuian approach to legal discourse.5 Legal discourse, as Pierre Bourdieu describes, is “a creative speech which brings into existence that which it utters . . .
it is the divine word, the word of divine right, which . . . creates what it states . . .”6 The law, according to Bourdieu and re-affirmed by Leeuwen, generates a representation of reality which is shared by various members of society. As Leeuwen emphasizes, the law, rather than being merely a tool used to legitimate the power of a particular authority, is a reflection and “institutionalization of values” espoused by both the power-holders and the subjects.7
Therefore, the legal system is not merely a composite of ideals divorced from existing social, political, and economic reality. In the realm of land tenure relations, the law must be understood in the context of power relations between various forces including: the state and waqf interests; the state, its local representatives, and agricultural producers; and waqf founders, beneficiaries, overseers, and cultivators (sharecroppers or tenants).
Understood in this framework, the law is a dynamic discourse, an integral part of the historical process, which is responsive to existing reality and actively engaged in shaping and re-shaping this reality. Thus, the law, similar to relations of power, is constantly being renegotiated. This process of renegotiation simultaneously reinforces and undermines the relations of power the law codifies.
In an attempt to examine the relationship between law and practice, I will consider various issues including: the responsiveness of muftīs and legal thinkers to local realities, the interplay between qanūn (Ottoman state law) and sharīʿa in shaping land laws, the structure of the land tenure system in the Syrian countryside, the differences between tenancy and sharecropping arrangements on state and waqf lands, the nature of tenant/sharecropper subjugation and dispossession and the law’s efforts to define and regulate such actions, and the rights and limitations governing the tenant/sharecropper’s access to the fruits of production given their control over the means of production.
The focus on Ḥanafī law (the offi- cial school of law under the Ottomans) is meant to elucidate the extent to which local representatives of official Ottoman law supported Ottoman state interests at the expense of tenant/sharecropper rights and local real- ities. Finally, an analysis of the law provides a glimpse into the language, values and ideals that a particular society refers to in defining itself. Thus, this study sheds light on notions of ‘ownership,’ ideas of public versus
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