The Islamic Law on Land Tax and Rent: The Peasants Loss of Property Rights As Interpreted in the Hanafite Literature of the Mamluk and Ottoman Period (Exeter Arabic and Islamic series)

152 Pages·1988·5.46 MB·English

by  Baber Johansen

EXETER ARABIC AND ISLAMIC SERIES
Edited by Aziz AI-Azmeh
Arabic Thought and Islamic Societies
Aziz Al-Azmeh
THE ISLAMIC LAW
ON LAND TAX
AND RENT
The Peasants' Loss of Property Rights as
Interpreted in the Hanafite Legal Literature of
the Mamluk and Ottoman Periods
Baber Johansen
CROOM HELM
London • New Ybrk • Sydney
© 1988 Baber Johansen
Croom Helm Ltd, Provident House,
Burrell Row, Bcckenham, Kent BR3 1AT
Croom Helm Australia, 44-50 Waterloo Road,
North Ryde, 2113, New South Wales
Published in the USA by
Croom Helm
in association with Methuen, Inc.
29 West 35th Street
New York, NY 10001
British Library Cataloguing in Publication Data
Johansen, Baber
The Islamic law on land tax and rent:
the peasants' loss of property rights
under the Hanafite doctrine. - (Exeter
Arabic and Islamic series).
1. Real property (Islamic law)
I. Title II. Series
340.5'9 (LA WJ
ISBN 0-7099-1496-2
Library of Congress Cataloging-in-Publication Data
Johansen, Baber.
The Islamic law on land tax and rent: the peasants' loss of
property rights under the Hanafite doctrine/Baber Johansen.
p. em. - (Exeter Arabic and Islamic series)
Bibliography: p.
Includes index.
ISBN 0-7099-1496-2
I. Real property tax (Islamic law) - History. 2. Rent (Islamic
law) - History. 3. Landlord and tenant (Islamic law)- History.
4. Hanafis - History. I. Title. II. Series.
LAW <ISLAM 7 Joha 1988>
346.04'3'088297 - de 19
[342.643088297] 87-30491
CIP
Printed and bound in Great Britain by
Billing & Sons Ltd, Worcester
Contents
Preface vii
Acknowledgements ix
Notes on Transcription x
Preliminary Remarks 1
1. The Birth of the Kharaj Payer 7
2. The Contract of Tenancy (ljara):
The 'Commodification' of the Productive Use of Land 25
3. The Share-cropping Contract (ai-Muzaraca):
Combining Dependent Labour with the Means
of Production 51
4. The 'Death of the Proprietors' 80
5. The Ottoman Muftis' New Doctrine on Tax and Rent 98
6. Summary and Conclusion 122
Bibliography 126
Name Index 132
Subject Index 134
To Elke's memory
Preface
........ --·.················-------
Habent sua fata libelli. The present essay was never meant to
become a book. It was a contribution to a stimulating sympo
sium on Islamic law. organised by Aziz Al-Azmeh at Exeter
University. As my subject I had chosen one aspect of the
important changes that occurred in the Hanafite jurists' doctrine
on agricultural relations of production after the tenth century. I
wanted to write an essay that demonstrated the importance of a
new legal category and the way in which this legal category
changed the classical doctrine of Hanafite law. Therefore, I felt
justified in neglecting other important changes in the Hanafite
doctrine on the agricultural relations of production, such as the
new legal ordinances on the social and economic status of the
peasants, the new forms of tenancy contracts and the import
ance of investment with regard to tenancy rights. I felt free to
neglect the details of the historical transmission of the new legal
category I was describing. And I did not analyse the social and
economic conditions in Central Asia that, from the tenth to
twelfth centuries, led Hanafite jurists in that part of the world to
develop the elements of the new doctrine that I am analysing in
this book. I hope to be able to integrate all these neglected
elements in a book on the development of the Hanafite doctrine
on relations of production in agriculture and to publish such a
book within the next three years.
What I wanted to present for publication was originally a
long essay. But analysing the legal categories turned out to be
impossible without at least discussing some of their implications
for the process of economic reasoning. The text grew in
complexity and length. At that stage of the writing process Aziz
Al-Azmeh's constant commitment to publish even a very long
essay was truly reassuring. When he finally took the initiative to
suggest publication as a book, I asked the advice of some of my
close friends and colleagues and gratefully accepted the offer. I
can only hope that the reader will find sufficient justification for
this decision in the text of the book.
I should like to thank my colleague, Fritz Steppat, for his
careful reading of the text and his encouragement to publish it
as a book. I enjoyed and found very helpful the long discussions
I had with Abdellah Hammoudi. Jamil M. Abun-Nasr has
PREFACE
discussed patiently, and with genuine friendly interest, many
aspects of the first draft. I am also grateful for having had the
chance to present an outline of the present book in a seminar on
Agriculture in the Middle East held jointly with Fritz Steppat,
Engin Akarli, Abdellah Hammoudi and Peter v. Sivers at the
Institute of Islamic Studies at the Freie Universitat Berlin. I owe
much to A.L. Udovitch's diligent reading of the text, his
valuable suggestions and his encouragement.
Margaret Rausch has carefully read and corrected the
manuscript. Renate Heveker has patiently and cheerfully typed
and retyped the various drafts.
The remaining mistakes are all mine.
Berlin, 9th March 1987
--··-·-·····--······--··-·--·--··--·-··---------·---------------
Acknowledgements
I wish to express my thanks to Mr Ronald Buckley for meticu
lous editorial assistance in the preparation of this book, and to
Mrs Sheila Westcott for the preparation of the final typescript
with her usual patience and competence.
Aziz Al-Azmeh
Notes on Transcription
The following signs are used in the transliteration of Arabic letters:
Arabic letter Transliteration
Hamza a, i or u at the beginning of a word. In the middle and
at the end of a word, the sign is used to indicate the
glott stop.
Bii" b '
Tii" t
Thii" th (to be pronounced like thin thought)
Gim j
l:fa·' h
Kha' kh (to be pronounced like the chin Loch)
Dill d
Dhai db (pronounced like thin this)
Ra' r
Ziiy z
Sin s
Shin sh
Sad ~ (emphatic s)
I;> ad <;I (emphatic d)
t (emphatic t)
Z:a" ~ (emphatic z)
cAin c (a strong guttural produced in the throat)
Ghain gh (similar to the first r in French parler)
Fa·' f
Qiif q (emphatic k)
Kaf k
Lam I
Mim m
Nun n
Waw w
Ya' y
Long vowels are expressed by the signs a, I and u.
Book titles, single words and half sentences are simply transliterated,
i.e. the transliteration reproduces the Arabic letters and not their
phonetic value. Whole sentences are transcribed. The transcription, in
theii: case, reproduces the phonetic changes that occur when sentences
are spoken. Arabic words that have a common English form (e.g.
Medina, mufti, Iraq) arc neither transliterated nor transcribed.
Preliminary Remarks
DID ISLAMIC LAW CHANGE?
The three scholars who - in this century - have contributed
most to our understanding of the history and structure of
Islamic law are unanimous in supporting the view that no
thoroughgoing changes occurred in Islamic law after the tenth
century. According to Joseph Schacht1 and Noel J. Coulson,2
the corpus juris of the Muslim jurists was developed during the
'formative period' of Islamic law extending until the middle of
the ninth or the begining of the tenth century. Chafik Chehata
speaks of a ·~~.!'.!ili!' 9! Isla~ic.Ja~ that comprises
the eighth tQ..~~~~~-IE!!!i~~-and in which the corpus juris
musulman reached its final stage of development. 3 He shares
with Schacht and Coulson the view that the legal ordinances of
Islamic law were fully developed in this period and underwent
only minor changes in the following periods. 4 He calls this
period the 'pre-classical period' of Hanafite law because the
most systematic and coherent forms of reasoning that underlie
the various legal ordinances and establish their unity and
cohesion as a legal system were developed only in the 'classical
___
period' of Hanafite law, i.e. from the tenth to the twelfth_ce.ntu:
ries.5 _C__.h...,e....h.__a__t,.a...,'_s. _ __p__e_ _n___e_,,_t ..r. _a,-t-i·-n--g-. .-a-n--a--l·y··-s·-i-s... --o·-f· ··t-h-·e-· ·a·-e-~v··e··l·-o--p--m-·-e-·n-·t· ··o--f-- -t-h""e~
. systematic and coherent forms of reasoning of Hanafite jurists
in the 'classical period' has, indeed, added much to our under
standing of the structure of Hanafite law. 6
However, the reader obtains from the works of those
eminent scholars the impression that after the earliest ('forma
tive' or 'pre-classical') period of Islamic law, its legal ordinances
(its corpus juris or 'positive law') remained unchanged. Insofar
as changes in legal reasoning are acknowledged, it is said that
they 'affected neither the established decisions of positive law
usul
nor the classical doctrine of a/-j'iqh '.7 _Schacht, C:::hehata
and ~~~- do not deny that the decisions of the muftis
throughout the. centuries added new material to the corpus juris
of Islamic law. But- with the notable exception of Coulson
they seem to be convinced that any changes which occurred
after the tenth century dealt with only minor matters of detail.
Coulson states that '. . . in the field of civil transactions forces
1