Islamic Law on Peasant Usufruct

in Ottoman Syria
 Studies in Islamic Law
and Society

Founding Editor
Bernard Weiss

Edited by
Ruud Peters and A. Kevin Reinhart

VOLUME 35

The titles published in this series are listed at brill.nl/sils

Islamic Law on Peasant Usufruct
in Ottoman Syria
17th to Early 19th Century

By

Sabrina Joseph

Leiden • boston
2012
Library of Congress Cataloging-in-Publication Data

Joseph, Sabrina
Islamic law on peasant usufruct in Ottoman Syria : 17th to early 19th century / By Sabrina Joseph.
p. cm. — (Studies in Islamic Law and Society ; 35)
Includes bibliographical references and index.
ISBN 978-90-04-22835-1 (hardback : alk. paper)
1. Landlord and tenant (Islamic law)—History. 2. Leases (Islamic law)—History. 3. Usufruct—
Syria—History. 4. Islam—Syria—History. 5. Syria—History—1516–1918. 6. Tenant farmers—Legal
status, laws, etc.—Syria—History. I. Title.

KBP880.J67 2012
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2012005156

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 CONTENTS

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

1. 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

2. 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

3. 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

4.. 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

Index .................................................................................................................... 199
 ACKNOWLEDGEMENTS

The research for this book was funded by grants from Fulbright Hays and
Zayed University, Office of Research (United Arab Emirates). The research
presented here was originally submitted in 2005 as my PhD dissertation
at Georgetown University, Washington, DC. It has gone through several
mutations since. I would like to thank the staff of the institutions where I
have carried out research over the years, particularly the Asad Library in
Damascus and the Jumaʾ al-Majid Center in Dubai. My interest in Islamic
law and the Ottoman period in particular I owe to both Judith Tucker and
Gábor Ágoston at Georgetown University. It is through their courses and
mentoring as a graduate student that I became interested in the law as
a source of history and the interplay between state and local forces dur-
ing the Ottoman era. I would also like to thank all those friends and col-
leagues who provided feedback and insight to me as I worked on various
drafts of this project. It goes without saying that any errors or omissions in
the text are my sole responsibility. There are several scholars cited in this
book whose research has laid the groundwork on issues related to Otto-
man land tenure. I have the utmost respect for this body of work and have
tried to build upon it in the current study. The book uses Brill’s simple
Arabic transliteration system with some minor modifications, including:

‫ث‬ th
‫ج‬ j
‫خ‬ kh
‫ذ‬ dh
‫ش‬ sh
‫غ‬ gh
‫َي‬ ay

Arabic terminology and the names of Ottoman jurists and scholars are
transliterated in the book. For ease of reading, however, the titles of works
and the names of modern day authors are not (the latter only include the
ʿayn and hamza characters where appropriate).
Finally, for their encouragement and patience over the years, I extend
my heartfelt gratitude and appreciation to my two children, Layla and
Dino, and my husband, Georgio. The time and commitment I have devoted
to this project would not have been possible without their support.
 INTRODUCTION

Scholars have used Islamic legal sources, including fatāwā (legal opinions)
and court records, to reconstruct the social and economic history of vari-
ous 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

1 Baber Johansen, Islamic Law on Land Tax and Rent: The Peasant’s Loss of Property
Rights as Interpreted in the Hanafite Legal Literature of the Mamluk and Ottoman Periods
(London: Croom Helm, 1988); Judith Tucker, In the House of the Law: Gender and Islamic
Law in Ottoman Syria and Palestine (Berkeley; Los Angeles: University of California Press,
1998); Leslie Peirce, Morality Tales: Law and Gender in the Ottoman Court of Aintab (Berke-
ley: University of California Press, 2003); Beshara Doumani, Rediscovering Palestine: Mer-
chants and Peasants in Jabal Nablus, 1700–1900 (Berkeley; Los Angeles; London: University
of California Press, 1995); Amy Singer, Palestinian Peasants and Ottoman Officials: Rural
Administration around Sixteenth Century Jerusalem (Cambridge: Cambridge University
Press, 1994); Haim Gerber, Social Origins of the Modern Middle East (London: Mansell
Publishing Ltd, 1987); and Kenneth Cuno, The Pasha’s Peasants: Land Tenure, Society and
Economy in Lower Egypt 1740–1858 (Cambridge: Cambridge University Press, 1992).
2 See ʿAbdul-Karim Rafeq, “City and Countryside in a Traditional Setting: The Case of
Damascus in the First Quarter of the Eighteenth Century,” in The Syrian Land in the Eigh-
teenth and Nineteenth Century, ed. Thomas Philipp (Stuttgart: F. Steiner, 1992), 295–332;
Amnon Cohen and Bernard Lewis, Population and Revenue in the Towns of Palestine in
the Sixteenth Century (Princeton: Princeton University Press, 1978); and Dror Zeʾevi, An
2 introduction

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 Otto-
man 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.

Ottoman Century: The District of Jerusalem in the 1600s (New York: State University of New
York Press, 1996).
3 Johansen, Land Tax and Rent. John Robert Barnes also describes how landed property,
once considered private, was increasingly brought under Ottoman state control from the
fifteenth century onwards. See, An Introduction to Religious Foundations in the Ottoman
Empire (Leiden; New York: Brill, 1987), 30–33, 38.
4 Halil Inalcik, “Land Problems in Turkish History,” The Muslim World 14 (1955): 221–28;
Roderic Davison, Reform in the Ottoman Empire: 1856–1876 (Princeton: Princeton Univer-
sity Press, 1963); Doreen Wariner, “Land Tenure in the Fertile Crescent,” in The Economic
History of the Middle East, ed. Charles Issawi (Chicago; London: The University of Chi-
cago Press, 1966), 71–78; Bernard Lewis, Emergence of Modern Turkey (London; New York:
Oxford University Press, 1968); Kemal Karpat, “The Land Regime, Social Structure, and
Modernization in the Ottoman Empire,” in Beginnings of Modernization in the Middle East,
eds. William R. Polk and Richard L. Chambers (Chicago; London: The University of Chi-
cago Press, 1968), 69–90; Peter Sluglett and Marion Farouk-Sluglett, “The Application of
the 1858 Land Code in Greater Syria: Some Preliminary Observations,” in Land Tenure and
Social Transformation in the Middle East, ed. Tarif Khalidi (Beirut: American University of
Beirut, 1984), 409–21; and Huri Islamoglu-Inan, “ ‘Oriental Despotism’ in World-System Per-
spective,” in The Ottoman Empire and the World Economy, ed. Huri Islamoglu-Inan (1987;
reprint, Cambridge: Cambridge University Press, 2004), 11.
 introduction 3

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 sys-
tem. 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 foun-
dations 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,

5 Richard van Leeuwen, Waqfs and Urban Structures: The Case of Ottoman Damascus,
vol. 11 of Studies in Islamic Law and Society, eds. Ruud Peters and Bernard Weiss (Leiden;
Boston: Brill, 1999).
4 introduction

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 ten-
ure system in the Syrian countryside, the differences between tenancy and
sharecropping arrangements on state and waqf lands, the nature of ten-
ant/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

6 Pierre Bourdieu, Language and Symbolic Power (Cambridge: Harvard University Press,
1991), 42.
7 Van Leeuwen, Waqfs and Urban Structures, 34.
 introduction 5

private good, and prevailing conceptions of economic and social justice.

Ultimately, legal scholars contributed towards strengthening and promot-
ing the rule of law at the local level.

Fatāwā as a Source of History

The findings of this study draw upon various fatwā collections and legal
commentaries/treatises of Ḥanafī jurists in Ottoman Syria that date from
the seventeenth through early nineteenth century. According to Judith
Tucker, the fatwā is a “social history of a particular kind, a record of how
an eminent legal thinker viewed the interaction between his legal tradi-
tion and the social currents that swirled around him.”8 It is precisely on
these two levels—the legal and the social—that I intend to examine these
thinkers. Through an analysis of their fatāwā and commentaries on share-
cropping, leasing, and cultivation, I explore how legal scholars sought to
define peasant tenure in the context of the agrarian realities of their time
by relying on a variety of legal sources (including customary law, Ottoman
law, legal handbooks, ijtihād, and fatāwā).
The juristic discourse on peasants shaped the legal norms governing
agrarian relations in seventeenth- through early nineteenth-century Syria.
Although an analysis of legal texts proves that there was often great
divergence between official Ottoman laws on land tenure and regional
variations of these laws, in certain ways, these scholars played an impor-
tant role in upholding the integrity of the Ottoman state and the agrar-
ian regime instituted by that state. Exploring the interplay between state
interests and local concerns, and between qanūn (state law) and sharīʿa,
this book addresses the extent to which overarching Ottoman imperial
interests informed the local religious authority’s formulation of land laws.
This is an important question in light of the fact that the incorporation
of the Arab provinces into the Ottoman Empire did not result in the out-
right replacement of existing structures of local government in conquered
areas. Rather, Ottoman practices were reconciled with existing institu-
tions and customs.

8 Tucker, “ ‘And God Knows Best’: Fatawa as a Source for the History of Gender in the
Arab World,” (paper presented, Arab Studies Workshop, Georgetown University, Spring
1994), 16. Also in Beyond the Exotic: Women’s Histories in Islamic Societies, ed. Amira al-
Azhary Sonbol (Syracuse: Syracuse University Press, 2005), 175–176.
6 introduction

While fatāwā are in many ways an invaluable source for history, there
are certain limitations associated with them. For one, although the fatāwā
constitute the legal opinions issued by a muftī over his lifetime, they do not
provide the historian with the identity of the actual individuals involved
in such cases (individuals are referred to by generic names such as ‘Zayd’,
‘ ʿAmr’, ‘Hind’), the context in time during which a particular case trans-
pired, or the geographic origin of the case at hand (although there are
several fatāwā which make reference to particular places). Without con-
sistent reference to significance, time or place, all the inquiries and legal
responses are grouped into specific categories (such as ‘waqf,’ ‘marriage,’
‘divorce,’ ‘sharecropping,’ etc.). Therefore, all issues relating to society, be
they moral, social or economic, are represented by the fatāwā as of equal
importance.
The notion that fatāwā are largely hypothetical, however, has been
challenged by scholars who have used legal opinions, either in and of
themselves or in conjunction with other legal sources (such as court
records), to shed light on various aspects of social history (i.e. the status of
women, property relations, etc.). For example, in his study of Khayr al-dīn
al-Ramlī, Ibn ʿAbidīn and Abū al-Suʿūd al-ʿImādī, Haim Gerber points out
that fatāwā do contain enough references to specific names and places,
and “large bodies of legal material which have no bearing on their legal
solutions” that one cannot simply relegate such legal texts to the realm of
the hypothetical.9
While fatāwā were not binding legal judgments, they did shape the
development of the law over time and, in some cases, were brought
to bear on court cases at hand (particularly in the core regions of the
empire). By ensuring the application of official Ottoman policy, fatāwā
played an important role in the standardization of the law. Furthermore,
muftīs ensured the adaptability of the legal system by incorporating social
and economic realities into the lawmaking process.10
According to Tucker, the muftī ’s relationship and interaction with the
Ottoman court in Syria and Palestine differed from what it was in the
core regions.11 To begin with, most of the muftīs in southern Syria and
Palestine, unlike those in the core regions, were raised and educated in

9 Haim Gerber, Islamic Law and Culture 1600–1840 (Leiden; Boston; Koln: Brill, 1999), 33.
He also provides a detailed description of the various place names, administrative terms,
etc. utilized in these fatwā collections, 32–42.
10 Gerber, State, Society and Law in Islam: Ottoman Law in Comparative Perspective
(Albany: State University of New York Press, 1994), chap. 3.
11 Tucker, House of the Law, 20–21.
 introduction 7

the Arab lands (specifically Cairo, Mecca, or Damascus) and, excluding

the muftī of Damascus, did not hold official positions in the Empire. Local
muftīs also differed in important respects from the qāḍīs who staffed the
courts. The differences in linguistic and educational background of local
Arabic-speaking muftīs and state appointed qāḍīs, many of whom were
Turkish-speaking officials with temporary appointments, undoubtedly
contributed to the more limited involvement of the muftīs in the courts.
While there are some instances of litigants bringing fatāwā to court, most
of the fatāwā issued by local muftīs were not directly related to specific
court cases. In fact, the muftīs’ “primary mission was that of delivering
legal advice to the local community of which they were a part.”12 As
Tucker argues and this study verifies, it is not unreasonable to assume
that in many cases, muftīs acted as legal consultants or mediators for indi-
viduals who did not want to take their case to court. Ultimately, as both
Tucker and Brinkley Messick emphasize, it is difficult to generalize about
the muftī or the fatwā.13 When using fatāwā, certain issues need to be con-
sidered such as: the educational background of the muftī; his relationship
to state power and the surrounding local community; his mode of earning
a livelihood; and his social and economic environment.
By highlighting the interplay between law and practice, this research
challenges notions that there was a wide discrepancy between legal con-
cepts and legal practice in Islamic societies and that Islamic law is fun-
damentally resistant to change, since it is rooted in the sacred realm of
divine revelation.14 Proponents of this line of thinking argue that Islamic
legal doctrine stopped developing after the ninth century with the ‘closing
of the gates of ijtihād.’ From this period onwards, Muslim jurists engaged
in little or no interpretation of the law (ijtihād), but rather accepted and
applied the law embodied in sacred texts and established doctrines of the
schools of law (this process is referred to as taqlīd ). Islamic jurisprudence
( fiqh) had thus largely been relegated to the realm of theory, divorced
from history and the social and economic life of society. Meanwhile, the
practice of law (particularly in the arenas of criminal and commercial

12 Ibid., 21.
13 Tucker, “And God Knows Best,” and Brinkley Messick, David Powers and Muham-
mad Khalid Masud, eds., Islamic Legal Interpretations: Muftis and Fatwas of the Dar al-Ifta
(Cambridge: Harvard University Press, 1996), 15–20.
14 Joseph Schacht, Introduction to Islamic Law; (Oxford: Clarendon Press, 1964) and
J.N.D. Anderson, Law and Reform in the Muslim World (London: Athlone Press, 1976). For
an overview of the state of the field relating to Islamic law see Tucker, House of the Law,
11–22.
8 introduction

law) followed a separate trajectory, being shaped by more ‘secular’ influ-

ences such as local custom and political reality. Viewed from such a per-
spective, the study of Islamic law would offer little or no insight into social
and economic history.
Such conceptions of Islamic law have been challenged by Wael ­Hallaq,
who has advocated a more dynamic perception of the law in Islamic
­society.15 According to Hallaq, ijtihād, although at times controversial, was
a widely accepted practice throughout the Islamic centuries. He challenges
the notion that there was a consensus that the law was no longer open
to interpretation. In fact, in most spheres of the law, “ijtihād is not only
admissible but is also considered a religious duty incumbent upon those
in the community who are learned enough to be capable of performing
it.”16 To understand the development of the law after the tenth century,
one must look beyond the texts of usūl al-fiqh (the sources and methodol-
ogy of the law) and examine doctrinal change across various legal texts.17
According to Tucker, Baber Johansen and Hallaq,18 the fatwā collec-
tions provide the best example of how doctrinal change has taken place
in the law. The fatāwā on sharecropping and tenancy illustrate that muftīs
and legal thinkers depended on a host of legal sources (most of which are
mentioned in the context of their legal discussions) in formulating the
laws governing the status of sharecroppers and tenants. Ultimately, how-
ever, while muftīs were expected to have the formal training and knowl-
edge necessary to engage in the interpretation of the law (this included
being educated in the received texts—the Qurʾān and ḥadīth—as well
as the key histories, and the texts central to the study of legal theory in
general and of his school of law in particular),19 the process of lawmak-
ing entailed being able to reconcile legal texts with prevailing social and
economic circumstances on the ground.

15 Wael Hallaq, A History of Islamic Legal Theories: An Introduction to Sunni usul al-fiqh
(Cambridge: Cambridge University Press, 1997).
16 Ibid., 117.
17 Hallaq, Islamic Legal Theories; Tucker, House of the Law, 13; Johansen, Land Tax and
Rent, 124–25.
18 Tucker, House of the Law, 13–16, Johansen, Land Tax and Rent, 124–125, and Hallaq,
Islamic Legal Theories, 144–45, 154–61.
19 Tucker, House of the Law, 14–15 and Hallaq, Islamic Legal Theories, 208–9.
 introduction 9

Muftīs

The jurists’ status as either official or non-official muftīs as well as their

educational training and respective roles within their communities cer-
tainly had a bearing on their legal rulings. I will therefore provide a
broad overview of the backgrounds of some of the key jurists referred to
throughout this book.
Khayr al-dīn ibn Aḥmad al-Fārūqī al-Ramlī (AH 993–1082/AD 1585–1671)
was from the region of al-Ramla in Palestine.20 Similar to other jurists
of the time, he pursued a rigorous course of study at al-Azhar in Cairo
where he benefitted from the best and broadest training in a wide vari-
ety of subjects, including Qur’ān and ḥadīth study, linguistics, grammar,
rhetoric, prosody, and law. As his fatāwā illustrate, al-Ramlī was well-
versed in both Shāfi‘ī and Ḥanafī jurisprudence and tolerant of different
legal approaches. In fact, he changed his affiliation from the Shāfi‘ī to
the Ḥanafī madhab (school), the official school of law in the Ottoman
Empire, during his religious studies. It is not clear if his aim in doing
this, however, was to assume a state-appointed position in the Ottoman
religious hierarchy. After all, throughout his career, al-Ramlī remained
an unofficial muftī.
After completing his studies, al-Ramlī returned to Ramla where he
began teaching and issuing fatāwā. A testimony to his standing in the
community, al-Ramlī was a muftī by popular acclaim whose reputation
and authority brought him petitioners and students from as far away as
Damascus. Furthermore, according to his biographer Muḥammad Amīn
ibn Fadl Allah al-Muḥibbī, he neither received a state salary nor income
from a waqf in return for his legal services. Ultimately, the authority he
acquired through experience and reputation meant that his judgments
often times superseded those of the officially appointed qāḍī. Thus, it is
not surprising that many of al-Ramlī’s legal judgments often challenge cer-
tain state interests, as will be illustrated.

20 For biographical information on al-Ramlī, see Muḥammad Amīn ibn Fadl Allah
al-Muḥibbī, Khulasat al-athar fi aʿ yan al-qarn al-hadi ʿashr (Beirut: Dar al-Kutub al-ʿIlmiya,
2006), 2:131–37. See also Tucker, House of the Law, 31–33 and Ihsan ʿAbbas, “Hair ad-Din
ar-Ramlī’s Fatawa: A New Light on Life in Palestine in the Eleventh/Seventeenth Cen-
tury,” in Die Islamische Welt Zwischen Mittelalter und Neuzeit: Festschrift für Hans Robert
Roemer, eds. Ulrich Haarmann and Peter Bachmann (Beirut; Wiesbaden: Franz Steiner,
1979), 1–19.
10 introduction

Without a state income, al-Ramlī necessarily depended on the reve-

nues he received from managing agricultural land and urban real estate.
In the region of al-Ramla, a large proportion of agricultural activity took
place on orchards and vineyards—this is borne out by al-Ramlī’s fatāwā
which devote significant attention to agricultural cultivation on such
lands. Indeed, al-Ramlī himself owned many orchards and vineyards, to
the point that his investments seemed to encourage the spread of agri-
culture in the area. According to Muḥibbī, he planted more than a hun-
dred thousand trees, including fruit trees, figs, and olives.21 While many
landholders in Syria left cultivation to the peasantry, al-Ramlī managed
his own orchards and vineyards, employing wage labor or entering into
sharecropping contracts with cultivators.22 Thus, it is of no surprise that
al-Ramlī, perhaps more than any other scholar, devoted a great deal of
attention to issues relating to land tenure.
This study draws extensively on al-Ramlī’s published fatwā collection
entitled Al-Fatawa al-khayriya li-naf ʾ al-bariya. Although he makes refer-
ence to various types of land in his fatāwā, this analysis focuses predomi-
nantly on those legal opinions pertaining to waqf lands and lands owned
by the state, the latter often referred to in his fatāwā as arādī bayt al-māl
(lands belonging to the public treasury) or sulṭānī lands.23
For a large part of the seventeenth century, the position of muftī of
Damascus was held by the al-ʿImādī family. The two manuscript collec-
tions of the al-ʿImādī family consulted in this study (Al-Nur al-mubin fi
fatawi al-ʿImadiyin and Fatawa bani al-ʿImadi wa-ghairi-him) comprise
legal opinions issued by these various muftīs over most of the seven-
teenth century.24 Although the majority of opinions in the Fatawa bani
al-ʿImadi collection were issued by muftīs of the al-ʿImādī family, there are
some fatāwā attributed to jurists outside of the family (such as Ismāʿīl bin
ʿAlī bin Rajab bin Ibrāhīm al-Ḥāʾik, AH 1046–1113/AD 1636–1702, the late

21 Muḥibbī, Khulasat al-athar, 2:135.

22 Kenneth Cuno, “Was the Land of Ottoman Syria Miri or Milk? An Examination of
Juridical Differences within the Hanafi School,” Studia Islamica 81 (1995): 148–49.
23 For an overview of al-Ramlī’s fatāwā relating to land tenure see Samir Seikaly, “Land
Tenure in Seventeenth Century Palestine,” in Land Tenure and Social Transformation,
397–408.
24 Muḥibb al-dīn al-ʿImādī, et al., Hadha al-majmuʾ fi fatawa bani al-ʿImadi wa ghairi-
him wa hiya fatawa Muhibb al-din al-ʿImadi wa ʿImad al-din al-ʿImadi, Zahiriya 5864; ʿAbd
al-Raḥmān al-ʿImādī, et al., Al-Nur al-mubin fi fatawi al-ʿImadiyin, Zahiriya 7508.
 introduction 11

seventeenth-century muftī of Damascus), as well as from jurists of other

schools of Islam. This study, however, will focus predominantly on those
fatāwā issued by the Ḥanafī jurists of the period.
The bulk of the al-ʿImādī legal rulings on land tenure referred to in
this book are attributed to the following scholars: Muḥibb al-dīn Abu
al-Faḍl Muḥammad ibn Abī Bakr ibn Dāwūd ibn ʿAbd al Raḥmān ibn
ʿAbd al-Khāliq ibn Muḥibb al-dīn ʿAbd al-Raḥmān ibn Taqī al-dīn
al-ʿUlwānī al-Ḥamāwī al-Dimashqī al-Ḥanafī (also known as Muḥibb
al-dīn al-Ḥanafī in the fatwā literature, AH 949–1010/AD 1542–1602),
ʿAbd al-Raḥmān al-ʿImādī (AH 978–1051/AD 1570–1641), ʿImād al-dīn
al-ʿImādī (AH 1004–1068/AD 1595–1658), and ʿAlī ibn Ibrāhīm ibn ʿAbd
al-Raḥmān al-ʿImādī (AH 1048–1118/AD1638—1706).25
As portrayed by their biographers, these various muftīs were generally
well respected scholars who underwent rigorous training before assum-
ing the position of muftī. Muḥibb al-dīn al-Ḥanafī held several legal and
official posts, including qāḍī of several northern Syrian towns, chief nāʿib,
military judge, and he also issued fatāwā at the request of the sultan.26
ʿAbd al-Raḥmān al-ʿImādī is described by al-Muḥibbī as “one of the most
outstanding men of his day,”27 who excelled in his studies with various
Islamic scholars of the time, including Ḥasan ibn Muḥammad al-Burīnī
and Muḥibb al-dīn al-Ḥanafī. He was a teacher and advisor and prolific
author who compiled several pamphlets and wrote poetry. Similar to his
predecessor and father, ʿImād al-dīn al-ʿImādī was also a respected scholar
who studied under the auspices of such highly regarded thinkers as his
father, ʿAbd al-Raḥmān, and al-Burīnī. According to al-Muḥibbī, he was an
honest and humble man who wanted to follow in his father’s footsteps.
His appointment as muftī of Damascus had support from the people and
from the “ruling groups of Damascus.” The popularity he enjoyed among
the people is best attested to by the fact that “his fatāwā were found in

25 For a comprehensive list of the muftīs included in the Fatawa bani al-ʿImadi manu-
script collection (Zahiriya 5864), see also Martha Mundy and Richard Saumarez-Smith,
Governing Property Making the Modern State: Law, Administration and Production in Otto-
man Syria. (New York: I.B. Tauris, 2007), 245–46.
26 Martijn Theodoor Houtsma & A.J. Wensinck, E.J. Brill’s First Encyclopaedia of Islam,
1913–1936 (Leiden: Brill Academic Publishers, 1993), 6: 700. Mundy and Saumarez-Smith
also make reference to Muḥibb al-dīn al-Ḥanafī in their work on Ottoman Syria, see Gov-
erning Property, 245.
27 Both Muḥibbī and Muḥammad Khalīl ibn ʿAlī al-Murādī provide detailed biographi-
cal information on ʿAbd al-Raḥmān al-ʿImādī. See Muḥibbī, Khulasat al-athar, 2:368–377
and Murādī, ʿUrf al-basham fi-man waliya fatwa Dimashq al-Sham (Majmaʾ al-Lugha
al-ʿArabiya, 1979), 66–72.
12 introduction

the hands of people from many different regions.”28 ʿAlī al-ʿImādī and his
brother Muḥammad al-ʿImādī (AH 1075–1135/AD1665–1723), the grand-
sons of ʿAbd al-Raḥmān, were also held in high regards by scholars and
the community alike. Al-Murādī describes ʿAlī al-ʿImādī as a distinguished
aʿyān (notable) and competent authority to which people turned for han-
dling various matters.29 According to the same biographer, Muḥammad
al-ʿImādī, who assumed the official position of muftī of Damascus after
his brother, was respected by judges, governors and leaders for his role
as a mediator, indicative of the broader communal role often played
by muftīs.30
Although he held the post of official Ḥanafī muftī of Damascus for only
a short period of time (few months in 1722–23), ʿAbd Al-Ghānī Al-Nābulusī
(AH 1051–1144/AD 1641–1731) left behind a prolific legacy of legal schol-
arship.31 Born in Damascus to a family with a long history of religious
learning, al-Nābulusī began teaching at the Umayyad Grand Mosque of
Damascus when he was only twenty years old. The eighteenth-century
biographer al-Murādī describes him as a “scholar among scholars” (ʿālim
al-ʿulāmaʾ) and a renowned literary and religious figure whose connec-
tions within government and religious circles extended far and wide (as
evident in his travel accounts).32 Aside from studying with Ḥanafī, Shāfiʿī,
and Ḥanbalī scholars, al-Nābulusī, as a member of the Qadīrī and Naqsh-
bandī orders, also studied under great Sufī masters, including Ibn Sabʿīn,
Ibn al-Farīd, and al-Tilimsānī. Al-Nābulusī’s rich educational background
is indicative of the spirit of cooperation and exchange that seemed to
exist between the various schools of Islam at this time, a reality which is
reflected in the fatwā literature on land tenure. As an imminent scholar
and intellectual of his time, al-Nābulusī also influenced several contem-
poraries of his day, including al-Muḥibbī and al-Siddiqī. With more than
eight-hundred titles to his name, his work encompassed various subject
matters including: theology, law, literature, history, travel, and mystical
knowledge. This study draws extensively on al-Nābulusī’s fatwā collection,

28 Muḥibbī, Khulasat al-athar, 3:194.

29 For his biography, see Muḥammad Khalīl ibn ʿAlī al-Murādī, Silk al-durar fi aʿyan
al-qarn al-thani ʿashar (Beirut: Dar al-Kutub al-ʿIlmiya, 1997), 3:190–94.
30 For his biography, see al-Murādī, Silk al-durar, 4:33–39.
31 Martha Mundy and Richard Saumarez-Smith document that al-Nābulusī was desig-
nated as muftī by popular support. This decision was approved by the governor at the time,
but then challenged by the Porte. See Governing Property, 245.
32 Murādī, Silk al-durar, 3:31–33.
 introduction 13

compiled during his time as muftī.33 Ultimately, one must read his fatāwā
with an understanding that al-Nābulusī’s respected reputation derived
largely from popular acclaim and his writings rather than his tenure as
an official muftī. Thus, it is not surprising that he (along with al-Ramlī)
was often more critical of certain state actions/laws vis-à-vis tenants and
cultivators.
One of the more prolific members of the al-ʿImādī family who held the
post of official muftī of Damascus in the eighteenth century was Ḥāmid
al-ʿImādī (full name Ḥāmid ibn ʿAlī ibn Ibrāhīm ibn ʿAbd al-Raḥīm ibn
ʿImād al-dīn ibn Muḥibb al-dīn).34 Born in AH 1103/AD 1692 and appointed
muftī in AH 1137/AD 1724–25, al-ʿImādī , the son of the Ḥanafī muftī of
Damascus preceding him (ʿAlī al-ʿImādī), studied in Damascus with many
reputable scholars, including ʿAbd al-Ghānī al-Nābulusī, as well as vari-
ous muftīs of the Ḥanbalī and Shāfiʿī schools. Thus, similar to other legal
scholars of the time, his legal training was not only limited to the study
of Ḥanafī law.
Although he owed his position as muftī to official appointment, there
is some indication that he enjoyed a favorable reputation among the
people. According to his biographer, al-Murādī, one of al-ʿImādī’s neph-
ews conspired against him and was able to take al-ʿImādī’s place as muftī
of Damascus. Interestingly, the people continued to consult al-ʿImādī
for advice during this period (total of ten months), even though he was
not an official muftī. Thus, the muftī ’s legitimacy very much hinged on
his broader reputation in the community and not just his official status
as determined by the state.
Although al-ʿImādī did not pursue the type of agricultural activities and
investments undertaken by al-Ramlī, he, like other notables in the city,
did invest in property and real estate. Most of his time and energy, how-
ever, was devoted to his scholarly and juristic pursuits. Along these lines,
he wrote treatises and biographies and composed poetry.
Various members of the al-Murādī family held the post of official
muftī of Damascus during the eighteenth century. One of the more

33 For his biography see al-Murādī, Silk al-durar, 3:31–38. See also Samer ʿAkkach, “The
Poetics of Concealment: Al-Nabulusi’s Encounter with the Dome of the Rock,” in Muqar-
nas: An Annual on the Visual Culture of the Islamic World, vol. 22, eds. Gulru Necipoglu &
Julia Baileys (Leiden: Brill Academic Publishers, 2005), 117–18. See also Elizabeth Sirriyeh,
Sufi Visionary of Ottoman Damascus: ʿAbd al-Ghani al-Nabulusi, 1641–1731 (London; New
York: Routledge, 2005).
34 For his biography, see al-Murādī, Silk al-durar, 2:11–17 and Tucker, House of the Law,
33–35.
14 introduction

­ ell-known jurists among them, ʿAlī al-Murādī (AH 1132–1185 /AD 1720–
w
1771) is described as a man of “good morals” (ḥasan al-akhlāq), unique
among his generation and a man who adhered closely to sharīʿa law and
maintained a strong sense of justice. According to his biographer and
son, Muḥammad Khalīl ibn ʿAlī al-Murādī (who was certainly somewhat
biased in his description), he had a famous reputation among believers
and his counsel was even sought by Sultan Mustafa himself. Administra-
tive judges (ḥukkām) in and around Damascus also called upon him and
“only follow[ed] his opinion[s].”35 As his biography details, moreover, ʿAlī
al-Murādī had a rich and diverse educational background, having studied
with both Ḥanafī and Shāfīʿī scholars alike. Always open to other ʿulamāʾ
in the community, his majālis served as an arena in which various sharīʿa
matters were handled.36 His brother, Ḥusayn al-Murādī (AH 1138–1188/
AD 1725–1774), who is described by his biographer as a humble man of
high moral character who interacted with dervishes and the poor and
generally respected the opinions of other ʿulamāʾ, held the post of official
Ḥanafī muftī of Damascus after ʿAlī.37 Finally, the al-Murādī manuscript
collection (Majmuʾ fatawi al-Muradiya) also contains fatāwā attributed to
Muḥammad Khalīl al-Murādī (AH 1173–1206/AD 1760–1791) himself, who
succeeded his uncle Ḥusayn as official muftī of Damascus during the late
eighteenth century.38 He was most well known for the biographies of dis-
tinguished eighteenth-century Muslim scholars which he compiled (Silk
al-durar).
A more contemporary jurist who will be considered in this study is
Muḥammad Amīn ibn ʿUmar Ibn ʿĀbidīn (AH 1198–1252/AD 1784–1836).39
Similar to al-Ramlī, Ibn ʿĀbidīn made the switch from the Shāfiʿī to the
Ḥanafī school of law and also never assumed the post of official muftī. None-
theless, he did issue legal opinions and was a well-respected scholar who
wrote various works; he produced an important doctrinal textbook, Radd
al-muhtar ʿala al-durr al-mukhtar sharh tanwir al-absar (a commentary on
the legal work of the seventeenth-century Damascene muftī Muḥammad
ibn ʿAlī ibn Muḥammad ibn ʿAlī al-Ḥaṣkafī, (d. AH 1088/AD1677), a
fatwā collection, and several legal treatises. His fatwā collection comprises
questions addressed to and answered by the Damascene muftī, Ḥāmid

35 al-Murādī, Silk al-durar, 3:211.

36 For his biography, see ibid., 3: 211–219.
37 Ibid., 2: 69–70.
38 Houtsma & Wensinck, E.J. Brill’s First Encyclopaedia of Islam, 2:155–56.
39 For his biography, see ʿAbd al-Razzāq ibn Ḥasan al-Baytār, Hilyat al-bashar fi tarikh
al-qarn al-thalith ashar (Damascus: Al-Majma‌ʾ al-ʿIlmi, 1963), 3:1230–39.
 introduction 15

al-ʿImādī. Ibn ʿĀbidīn provides his own responses to several of these ques-
tions, incorporating relevant legal discussion into his remarks. According
to Ibn ʿĀbidīn, when he was nominated Amīn al-Fatwā (the official run-
ning the apparatus helping the muftī to phrase fatāwā) in Damascus, he
decided to take on such a project because of the popularity of Ḥāmid
al-ʿImādī’s fatāwā and the fact that the collection needed reorganiza-
tion and editing. Ibn ʿĀbidīn completed this work in AH1238/AD 1822.40
Ultimately, because the collection incorporates al-ʿImādī’s fatāwā as well
as Ibn ʿĀbidīn’s commentary and/or responses to various legal opinions
issued by al-ʿImādī, it provides insight into the legal thinking of both
jurists.
The education, training and experience which these various scholars
underwent before becoming respected jurists indicates, above all else,
that the practice of law was an endeavor that involved long years of study,
acceptance at the popular and governmental levels, and a proven track
record of moral and ethical standards of practice. A rigorous course of
study involved training not only in Ḥanafī law, but the other schools of
law as well. This is in line with Gerber’s conclusion that while the Ḥanafī
school was certainly privileged in some respects, there existed under the
Ottomans a sort of jurisprudential equality among the madhhabs.41 In fact,
the fatāwā under study reflect frequent references by Ḥanafī jurists to the
other madhhabs, and even close cooperation between ʿulamāʾ (muftīs as
wells as qāḍīs) of different schools.42 Thus, the formulation of the law was
clearly done in the context of a broad Islamic legal tradition as well as a
dynamic social, economic, and political reality.

Tenancy and Sharecropping in the Context of Peasant Studies,

Islamic Legal History, and the Scholarship on Sharecropping

The study of the legal status of tenants/sharecroppers in Islamic law

draws from and builds on research done in the fields of peasant stud-
ies, Islamic legal history, and sharecropping. In the case of each of these
three fields, however, this research goes beyond the existing literature in
­understanding elements of tenancy and sharecropping that have been
hitherto examined in limited detail.

40 Gerber, Islamic Law and Culture, 20–21.

41 Ibid., 69–70.
42 Muḥammad Amin ibn ʿUmar Ibn ʿĀbidīn, Al-ʿUqud al-durriyya fi tanqih al-fatawa
al-Hamadiya (Bulaq: al-Matbaah al-Amira al-Miriya, 1882 or 3), 2:97, 116.
16 introduction

Peasant Studies
As a field of research, ‘peasant studies’ emerged early in the twentieth
century in response to the various reform movements and revolts that
spread among peasant societies in Eastern and Central Europe. Shortly
after World War II, the study of peasant populations progressed in the
decolonizing and developing world.43 By the mid 1900s, the approach of
the Annales School became the major trend. The latter school moved away
from the more traditional political history and championed a ‘history from
below,’ advocating systematic studies of the social and economic histories
of underprivileged or marginalized groups, such as workers, women and
peasants. In the realm of peasant history, the works of March Bloch and
Georges Duby provided the first comprehensive surveys of peasant life
in medieval and early modern Europe.44 While Bloch’s research focuses
on the evolution of agrarian institutions and customs in France from
the medieval period up through the eighteenth century, Duby, building
on Bloch’s contributions, examines the history of rural life in medieval
Europe. Both scholars use a comparative approach (Bloch to a lesser
extent) in an attempt to generate a common set of questions relating to
European peasant history in general.45
The culmination of these efforts gave birth to the Journal of Peasant
Studies in 1973. Influenced by Marxist thought and a handful of anthropo-
logical/historical works which examined peasant social and economic life
from a comparative perspective,46 the Journal focused on issues related
to agrarian change, such as the social and economic structures of peasant

43 Amy Singer, Palestinian Peasants, 15.

44 Marc Bloch, Les caractères originaux de l’histoire rurale francaise (Oslo: Institut pour
l’Etude Comparative des Civilisations, 1931). Trans. by Janet Sondheimer as French Rural
History: an Essay on its Basic Characteristics (Berkeley; Los Angeles: University of Califor-
nia Press, 1966); Georges Duby, L’économie rurale et la vie des campagnes dans l’Occident
médiéval (Paris: Aubier, 1962). Trans. by Cynthia Postan as Rural Economy and Country
Life in the Medieval West (London: Edward Arnold, 1968; Columbia, SC: University of South
Carolina Press, 1968).
45 Other works from the Annales school dealing with peasant history included: Pierre
Goubert, Beauvais et le Beauvaisis de 1600–1730: contribution à l’histoire sociale de la France
au XVIIIe siècle (Paris: S.E.V.P.E.N., 1960); Emmanuel Le Roy Ladurie, Les paysans de Langue-
doc (Paris: Centre de Recherches Historique, École Pratique des Hautes Études, 1966); Jean
Meuvret, Le problème des subsistences a l’epoque de Louis XIV (Paris: Mouton, 1977); Michel
Morineau, Les faux-semblants d’un démarrage économique: agriculture e démographie en
France au XVIIIe siècle (Paris: A. Colin, 1971); and Pierre de Saint Jacob, Les paysans de la
Bourgogne du nord au dernier siècle de l’ancien regime (Paris: Belles Lettres, 1960).
46 Eric Wolf, Peasants (Englewood Cliffs: Prentice-Hall, 1966); Wolf, Peasant Wars of the
Twentieth Century, 1st ed. (New York: Harper and Row, 1969); Barrington Moore Jr., The
Social Origins of Dictatorship and Democracy. Lord and Peasant in the Making of the Modern
 introduction 17

societies, the nature of peasant agriculture, and the involvement of peas-

ants in politics. One of its main agendas was to shed light on the nature
of social and economic transformation in the developing regions of the
world, including Latin America, Asia, and Africa.47
With the increasing attention given to ‘third world’ studies, peasant
studies in the context of the Middle East and the broader Islamic world
generally expanded.48 Most research, however, concentrated on modern-
day peasant populations; peasants prior to the nineteenth century received
little attention. Furthermore, this earlier historiography on Middle Eastern
peasantry during the late Ottoman period tended to focus on peasant life
in relation to their agricultural practices, customs and traditions or in the
context of broader themes such as modernization or revolution.49 Most
of this earlier research, moreover, relied primarily on secondary literature,
Western travel accounts and European official sources. In doing so, such
scholarship necessarily neglected the role of local forces in shaping and
transforming rural structures and agrarian relations.
In recent years, scholars have increasingly utilized fatāwā and court
records to reconstruct the nature of agrarian relations in different regions
of the Ottoman Empire. Through an analysis of legal opinions and court
records from different regions of the Empire, historians studying agrar-
ian relations have come to challenge the tenets of modernization theory,
notions of the ‘passive’ role of the peasantry, the paradigm of Ottoman
‘decline’ and the ‘repressive’ nature of the Ottoman agrarian regime.50
Moreover, the use of such sources has given historians and Islamic legal
scholars insight into the doctrinal development of the law, the relationship

World (Boston: Beacon Press, 1966), and A.V. Chayanov, The Theory of Peasant Economy,
eds. Daniel Thorner, Basile Kerblay and R.E.F. Smith (Homewood, Il: R.D. Irwin, 1966).
47 T.J. Byres, “The Journal of Peasant Studies: Its Origins and Some Reflections on the
First Twenty Years,” in The Journal of Peasant Studies: A Twenty Volume Index 1973–1993,
eds. Henry Bernstein and others (London: Frank Cass, 1994), 1–12.
48 For an overview of the scholarship on peasant history in the broader Muslim world
from the Mesopotamian period up through the twentieth century, see Singer, Palestin-
ian Peasants, 15–17; and R. Stephen Humphreys, Islamic History: A Framework for Inquiry
(Princeton: Princeton University Press, 1991), 284–308.
49 Singer, Palestinian Peasants, 15. Examples of such works include: Susan Winifred
Blackman, Fellahin of Upper Egypt: Their Religious and Social and Industrial Life to-day with
Special Reference to Survivals from Ancient Times (London: G.G. Harrap and Company ltd.,
1927); Henry Habib Ayrout, Moeurs et coutumes des fellahs (Paris: Payot, 1930); Gabriel Baer,
Studies in the Social History of Modern Egypt (Chicago: University of Chicago Press, 1969);
and Jacques Weulersse, Paysans de Syrie et du Proche-Orient (Paris: Gallimard, 1946).
50 Rifaʿat ʿAli Abou el-Haj provides an explanation of the ‘decline’ paradigm and its
main tenets in his work Formation of the Modern State: The Ottoman Empire, sixteenth to
eighteenth centuries (Albany: State University of New York Press, 1991).
18 introduction

between the theory and practice of the law, and the interaction between
state and society.
Using court records and legal opinions to study land tenure patterns
and rural/urban networks, scholars, including Gerber and Kenneth Cuno,
have challenged notions that the Ottoman agrarian structure fell into
decline after the sixteenth century and gave rise to large estates, or that
market networks and commercial agriculture did not emerge in the Mid-
dle East until the nineteenth century.51 In the context of Ottoman Pales-
tine, Beshara Doumani and Amy Singer have utilized local court records
to reconstruct a history of agrarian relations, shedding light on commer-
cial networks that bound the rural and urban spheres, and the relation-
ship between provincial officials and local peasants.52
Although this new wave of scholarship has contributed to our under-
standing of peasant social and economic life from the sixteenth through
the nineteenth centuries, it has provided little insight into how the Islamic
religious establishment perceived the role of peasant cultivators in the
context of existing social and economic relations. This is in part due to
the nature of the sources utilized by these scholars. Court records pro-
vide mainly a record of the buying and selling of property, the division of
estates (and thus inheritance practices), the formation of business part-
nerships, and the arrangement of loans between individuals. According to
Tucker, “the recording of such transactions was a straightforward exercise
requiring little more than the qāḍī ’s presence.”53 To a lesser extent, indi-
viduals also used the court to register marriages and dispute a range of
issues related to family matters and gender relations in general (such as
child custody, divorce, and sexual assault). For the most part, individuals
went to court to register and record matters of importance, particularly
those matters related to property rights and the lending of money or col-
lection of debt. Such transactions obviously contain little or no discus-
sion of legal methodology. Even in cases that did involve litigation (i.e.
criminal cases, claims relating to debt payment, and custody suits), qāḍīs,
generally speaking, delivered a judgment without providing the relevant
texts or legal reasoning employed in rendering a particular decision.54

51 Gerber, Social Origins; Cuno, The Pasha’s Peasants. See Immanuel Wallerstein, The
Modern World System (New York: Academic Press, 1974) for an articulation of the world
systems theory.
52 Doumani, Rediscovering Palestine; and Singer, Palestinian Peasants.
53 Tucker, House of the Law, 18.
54 Ibid., 18–19.
 introduction 19

Islamic Legal History

In the realm of Islamic legal history during the Ottoman period, the stud-
ies that have addressed the development of Islamic law as it pertains to
land tenure, cultivation practices, and tenant/landlord relations have
largely focused either on the period up through the sixteenth century or
on the nineteenth century, largely neglecting the seventeenth and eigh-
teenth centuries. While the research done on nineteenth-century land
laws has concentrated primarily on the Ottoman land law of 1858 and its
ramifications,55 the work done on the period up through the sixteenth cen-
tury has addressed such issues as the evolution of sharecropping (muzāraʿa)
and its acceptance in Islamic jurisprudence and the transformation of the
land tax in Ḥanafī thought.56
The latter research has provided limited insight into the actual sta-
tus of cultivators as sharecroppers and tenants and the possession
rights accorded to them on state and waqf lands in the period after the
sixteenth century.
In his study of the land tax and rent in Ḥanafī jurisprudence, Johan-
sen explains how by the sixteenth century, peasant proprietors legally
came to be considered as sharecroppers on state and waqf lands as the
kharāj came to be treated more like a rent rather than a tax. He traces the
legal evolution of the concept of the ‘death of the proprietors’ and how
Ḥanafī jurists, through their articulation and perpetuation of this latter
notion particularly after the fifteenth century, “legalized the tenant status
of peasants and the fact that they no longer enjoyed property rights.”57
The implication here is that Ḥanafī muftīs and legal thinkers upheld the
­interests of the state and rentier class at the expense of small peasant
proprietors and sharecroppers.
Kenneth Cuno takes issue with this.58 Using the works of Khayr al-dīn
al-Ramlī and Ibn ʿĀbidīn, he illustrates how certain muftīs in seven-
teenth and early nineteenth century Syria were opposed to state efforts
to treat kharāj paying lands as state lands. Thus, some muftīs upheld the
status of peasant proprietors vis-à-vis an all-powerful state. While both
Johansen and Cuno examine the changing status of peasant proprietors

55 Davison, Reform in the Ottoman Empire; Warriner, “Land Tenure”; Karpat, “The Land
Regime;” and Sluglett and Farouk-Sluglett, “The 1858 Land Code.”
56 Ziaul Haque, Landlord and Peasant in Early Islam (Islamabad: Islamic Research Insti-
tute, 1977); Johansen, Land Tax and Rent.
57 Johansen, Land Tax and Rent, 85.
58 Cuno, “Miri or Milk?”
20 introduction

vis-à-vis the state and the ‘rentier class’ from the sixteenth through the
early nineteenth centuries, neither comprehensively analyzes the actual
status ­sharecroppers/tenants came to have on state and waqf lands. Fur-
thermore, Johansen’s discussion of muzāraʿa and the sharecropper’s sta-
tus in the muzāraʿa contract is largely limited to the period up through
the sixteenth century. Martha Mundy and Richard Saumarez Smith have
addressed the legal status of cultivators as articulated by Damascene jurists
between the seventeenth through the nineteenth centuries.59 The bulk of
their book on Ottoman Syria, however, focuses on the nineteenth cen-
tury and the Ottoman process of modernization. Mundy’s recent work on
the legal status of cultivators in Ottoman Syria, however, provides insight
into the laws regulating peasant mobility and the cultivator’s obligation
to farm arable lands.60 Ultimately, this book builds on Mundy and Smith’s
as well as Cuno’s work. I will examine how Ḥanafī muftīs and legal think-
ers from seventeenth through early nineteenth century Syria sought to
maintain a balance between tenant rights and landlord interest. In doing
this, they upheld certain Ottoman laws while simultaneously responding
to existing local realities and imposing limits on state authority.
Although this study will on occasion make use of the term ‘peasant,’
farmers are most often referred to according to the type of contract—
muzāraʿa (sharecropping) or ijāra (lease)—in which they were engaged
or the type of possession rights (not ownership rights) they enjoyed and/
or claimed. Very rarely do the fatāwā refer to such agricultural laborers
as ‘fallāḥ’ or ‘fallāḥīn’ (peasants); a more common term employed, for
example, is ‘muzārʿi’ (cultivator). Furthermore, by using the terms ‘ten-
ant,’ ‘sharecropper,’ or ‘lessee,’ I want to emphasize that the legal sources
referred to these agricultural laborers according to their legal status rather
than their socially assigned status, indicating the standardization and con-
sistency of the law in general.

Literature on Sharecropping
Historically speaking, sharecropping has existed for centuries and contin-
ues in many regions down to the present day.61 There is evidence indi-

59 Mundy and Saumarez Smith, Governing Property.

60 Martha Mundy, “Islamic Law and the Order of State: The Legal Status of the Cultiva-
tor,” in Syria and Bilad al-Sham under Ottoman Rule: Essays in Honor of Abdul-Karim Rafeq,
eds. Peter Sluglett and Stefan Weber (Leiden; Boston: Brill, 2010), 399–419.
61 For an overview of the literature on sharecropping, see William Donaldson, Share-
cropping in the Yemen: A Study of Theory, Custom, and Pragmatism (Leiden; Boston; Brill,
 introduction 21

cating that sharecropping, in various forms, existed in ancient Greece,

China and India, and in the Roman Empire after the rise of Christianity.62
Research conducted on sharecropping in Europe indicates that the insti-
tution began to take root in Italy (mezzadria) as early as the ninth century
and in France (métayage) by the sixteenth and seventeenth centuries.63
In the Middle East, the sharecropping system was already established in
Yemen during the pre-Islamic period, in Egypt by the third century BC, and
in Persia by the time of the Sasanid dynasty (AD 226–651).64 The practice
was also prevalent in pre-Islamic Iraq. Muzāraʿa continued down through
the first century of Islam in Iraq, where it existed predominantly on state
owned lands and lands belonging to religious communities. Sharecrop-
ping arrangements were also fairly widespread in the Byzantine Empire.65
Research done on sharecropping during the contemporary period indi-
cates that sharecropping was the predominant form of land tenure in
China until the rise of communism in 1947 and in Italy and Turkey until
the 1950s when various land reform measures were introduced. Share-
cropping arrangements continue to prevail today in India, other parts of
Asia, and also in areas of the Middle East and southern Europe.66
Although it is difficult to generalize about why sharecropping was
practiced in certain regions and not others, there are some climatic/
environmental conditions which seem to favor the presence of share-
cropping arrangements. According to William Donaldson, the regions in
which sharecropping has tended to be more prevalent are those in which
thin soils and dry-farming techniques exist and agricultural production
is largely dependent on climatic changes. Included in this category are

2000), 22–33.
62 Ibid., 22 and T.J. Byres, “Sharecropping in Historical Perspective: A General Treat-
ment,” in Sharecropping and Sharecroppers, ed. T.J. Byres (London: Frank Cass, 1983),
7–12.
63 J. Pratt, The Rationality of Rural Life: Economic and Cultural Change in Tuscany (Chur,
Switzerland: Harwood Academic Publishers, 1994), 1, 31; Bloch, French Rural History, 147;
and Louis Merle, La métairie et l’évolution agraire de la Gatîne Poitevine (Paris: Centre de
recherches historiques, 1958).
64 Donaldson, Sharecropping in the Yemen, 22. For more on the history of land tenure
and land administration in Persia from Islamic times up through the twentieth century,
see Ann K.S. Lambton, Landlord and Peasant in Persia: A Study of Land Tenure and Land
Revenue Administration (London: Oxford University Press, 1969).
65 Haque, Landlord and Peasant, 169–71, 290–1, 293, 299; Michael G. Morony, “Land-
holding in Seventh Century Iraq: Late Sasanian and Early Islamic Patterns,” in The Islamic
Middle East, 700–1900: Studies in Economic and Social History, ed. A.L. Udovitch (Princeton:
The Darwin Press, 1981), 147–48; and Morony, “Landholding and Social Change: Lower
al-ʿIraq in the Early Islamic Period,” in Land Tenure and Social Transformation, 214.
66 Donaldson, Sharecropping in the Yemen, 23.
22 introduction

parts of southern France, a large part of central and southern Italy, regions
along the Mediterranean, and most of the countries in the Middle East.
Sharecropping was less common or existed only periodically in areas with
wetter climates and more predictable crop yields. For example, in north-
western Europe, sharecropping seems to have been quite uncommon
except in certain areas and then for only limited periods of time.67
The literature on sharecropping has devoted its greatest attention to
the relationship between the landowner and the sharecropper, specifi-
cally each partner’s entitled share of the crop given his/her contribution
to the means of production (i.e. seed, land, labor, and livestock). As Don-
aldson points out,
[i]n certain areas during certain times, the landlord’s share of the crop may
be only one-quarter or less, or as high as three-quarters or more. In point of
fact, a variety of proportions have been reported throughout the world and
over centuries according to differences in local environment and economic
conditions.68
The sharecropper’s portion of the crop and his/her status on the land
were affected by what part of the means of production he/she contrib-
uted. Each of the elements of production has assumed varying degrees of
importance across different regions. Thus, as will be discussed in chapter
two, Ḥanafī legal thinkers emphasized that the partner who contributed
the seed in the contract held the dominant position in the sharecrop-
ping arrangement.69 Thus, cultivators without access to landed capital
or livestock had the opportunity to benefit from such arrangements. In
early modern France, however, those tenants with access to livestock and
equipment enjoyed clear advantages vis-à-vis their landlords. According
to Louis Merle, the increasing impoverishment of the peasantry in the
Gatîne poitevine during the course of the seventeenth century is best indi-
cated by their inability to procure the livestock necessary to engage in
cultivation. From the seventeenth century onwards, proprietors provided
the livestock in sharecropping arrangements, reducing sharecroppers to
the status of agricultural laborers and a rural proletariat.70 These same
proprietors also profited from livestock leases which allowed them to lend

67 Ibid., 24–25.
68 Ibid., 26.
69 Johansen provides a detailed discussion of the importance of the seed in the share-
cropping agreement according to pre-sixteenth century Ḥanafī Law (Land Tax and Rent,
61–64).
70 Merle, La métairie, 116–17.
 introduction 23

animals to those sharecroppers in need.71 In contrast to the sharecropper

of Gatîne, the fermier (tenant-farmer) of the Ile de France assumed the
status of an agricultural entrepreneur involved in a vast rural/urban mer-
chant network largely because of his access to capital—i.e. livestock and
‘dead’ stock (or cheptel mort, this included all the materials/tools involved
in transport and labor).72
Modern researchers have espoused diverse views on which party in the
contract reaps the most economic and social benefit from sharecropping
arrangements. There are many studies of sharecropping that portray the
landlord as holding the upper hand in such contracts, seriously jeopardiz-
ing the social and economic interests of the sharecropper.73 For exam-
ple, referring to sharecroppers in the Midi during the medieval period in
France, Duby maintains that they were largely “wretched individuals set-
tling on the lords’ lands empty-handed and expecting immediate help in
the shape of an advance of seed, provision of tools and even sometimes
of food.”74 In his work on sharecropping in early modern France, Merle
emphasizes that the financial and physical burden of carting crops/pro-
duce to the landlord continued to fall mostly on the sharecropper/­tenant.
Furthermore, many leases forbade the sharecropper from providing cart
services to anybody but his master, thereby limiting his profit ­making
opportunities.75 Landlords, however, faced their own disadvantages in
such contracts—their share of the crop was often cut into by payment of
the tithe and tax. Thus, as James Collins points out, landlords in the early
seventeenth century complained that payment of the taille on behalf of
their sharecroppers reduced their rents.76
Ann Lambton, referring to sharecroppers in mid-twentieth century Per-
sia, also argues that sharecroppers were often at a serious disadvantage
and that no protection was offered the tenant. Peasants, for example, were
subjected to paying onerous dues and fulfilling various services, including
transporting crops from the fields to the granaries at their own expense,
performing labor services (such as irrigation works and road building),
and providing the landlord with gifts of farm products and/or animals.77

71 Ibid., 118.
72 Jean-Marc Moriceau, Les fermiers de l’Ile de France (Paris: Fayard, 1994).
73 Donaldson, Sharecropping in the Yemen, 30.
74 Duby, Rural Economy, 327.
75 Merle, La métairie, 172–73, 219.
76 James Collins, The Fiscal Limits of Absolutism: Direct Taxation in Early Seventeenth
Century France (Berkeley: University of California Press, 1978), 170–71, 187.
77 Lambton, Landlord and Peasant, 306, 330–36.
24 introduction

This contrasts with the situation in modern-day Yemen where, as

Donaldson documents, the sharecropper’s obligations are not necessarily
burdensome.78 The Yemeni sharecropper, depending on the type of land/
crops cultivated, could be responsible for carrying out various tasks in
addition to farming including: repairing the terrace or boundary walls,
maintaining water channels on irrigated lands, and protecting crops from
thieves or animals, especially in the case of fruit trees and dates. Such
duties could be directly specified in the contract or simply expected as
part of local custom, in spite of the fact that certain jurists from the Zaydī
and Shāfiʿī madhabs (the two main schools of law in Yemen) were against
the imposition of extra services on the tenant that were not tied to the
actual cultivation of crops. Sharecroppers, however, did not necessarily
perceive such jobs as onerous or outside their scope of work. Rather, they
often emphasized how fulfilling such tasks benefited both tenants and
landowners.79
In his study of sharecropping in central Italy before the land reforms of
1950, J. Pratt emphasizes how the system did not necessarily work com-
pletely against the interests of the sharecropper. While sharecropping was
usually a labor intensive form of production for the sharecropper and his
family, sharecroppers, generally speaking, tended to be better off than day-
laborers. Although Tuscan landlords sometimes evicted their sharecrop-
pers or attempted to exclude them from the market, these cultivators also
sought out other farms and some even accumulated enough resources to
invest in land themselves. Because much of the work on farms consisted of
long term investments such as terracing and planting olives and vines, it
was in the landlord’s interest not to evict his sharecroppers.80 Although
sharecroppers were obliged to provide the landlord with half of the
produce in addition to certain extra services (these included providing
accommodation when he visited or working some days of the year on
road building), they did retain full rights to the produce of the kitchen
garden and the farmyard (which were managed largely by women).81
Such a study would seem to indicate that the sharecropping system is
not necessarily disadvantageous to tenant cultivators. Indeed, as Donald-
son points out, if landlords act fairly and tenants have access to capital,

78 Donaldson, Sharecropping in the Yemen, 29, 171–72, 181–85.

79 Ibid., 182–85.
80 Pratt, Rationality of Rural Life, 39–42. See also Donaldson, Sharecropping in the
Yemen, 31–32.
81 Pratt, Rationality of Rural Life, 41.
 introduction 25

the system could result in advantages for tenant farmers in areas where
for climatic, political, economic or other reasons there are certain risks
associated with farming.82 The issue that is not addressed in these vari-
ous studies (except for Donaldson’s work on Yemen), however, is the role
that the law and legal scholars have played in shaping the status of share-
croppers/tenants in their respective societies, particularly during the early
modern period. Although the scholarship has highlighted the importance
of security of tenure, it has not systematically examined how the law itself
could hinder or promote such a situation. An analysis of the rights and
obligations governing sharecroppers and tenants on state and waqf lands
will be taken up in chapters three, four and five.

Chapter Breakdown

Chapter one sets the stage by providing an overview of government, econ-

omy, environment, and agriculture in Ottoman Syria during the period
at hand. Specifically, it explains the structure of Ottoman government
at the local level, the roles of various local officials, the economic and
religious significance of Damascus as well as other surrounding towns,
arable farming in Ottoman Syria, and the various types of agricultural pro-
duction in the Syrian countryside. The remainder of the chapter explores
the nature of the administrative apparatus governing both state and waqf
lands, including those officials and administrators with whom tenants and
sharecroppers interacted. Beginning with a discussion of the state land
system and its legal underpinnings, this portion of the chapter then moves
on to examine the nature of waqf property and the rights and duties of the
waqf founder, the beneficiary(ies), and the administrator(s). The issues
that are examined include: the characteristics of a waqf, the distribution
of waqf revenues, waqf administration, the alienation of waqf property,
and the reasons for establishing a waqf.
Chapter two explores the obligations of tenants and sharecroppers on
both state and waqf lands. The chapter begins with a discussion of the laws
governing the leasing of arable lands and then moves on to discuss the con-
tractual limitations on sharecroppers as laid out by seventeenth- through
early nineteenth-century Syrian jurists. This latter section considers
the factors of production (seed, land, stock, and labor) and how they
should be combined by partners involved in a sharecropping agreement,

82 Donaldson, Sharecropping in the Yemen, 32–33.

26 introduction

the proper terms for sharecropping contracts (the length, the partners
involved, and their contributions), and the differences between muzāraʿa
and musāqāt arrangements. Differences among Ḥanafī jurists on various
points of law are highlighted and explained. Finally, the chapter ends with
an analysis of the obligations that tenants and sharecroppers had to waqf
overseers and state officials, including their tax-paying responsibilities
on state and waqf lands. In these sections, I highlight the ways in which
jurists upheld Ottoman state laws regarding land tenure and taxation.
Chapter three examines how jurists defined peasant usufruct rights
at the local level and often expanded upon official Ottoman law. I also
address how jurists sought to ensure that the payment of fair rent (required
of ­lessees on state and waqf lands by the seventeenth century) was reg-
ulated so that cultivator rights were not jeopardized. The chapter then
goes on to explore the legal limits jurists imposed on the power of both
waqf overseers/supervisors and tīmār officials over cultivators. Indeed, the
fatāwā present evidence that the tīmār system was still in force (albeit in
a somewhat altered form) in early modern Syria, thereby challenging the
notion that the Ottoman land system fell into ‘decline’ after the sixteenth
century. Rather than being completely displaced, traditional land struc-
tures evolved up through the early nineteenth century.
The final chapter addresses some of the discrepancies between qanūn
and sharīʿa in the realm of land laws. After providing a brief overview of
the sharīʿa/qanūn debate as it has evolved among scholars in the field,
the chapter delineates those state laws treated critically by jurists and
how juristic reasoning was influenced by sharīʿa (as opposed to qanūn)
in particular areas of law. To begin with, I elaborate on how jurists sup-
ported peasants’ freedom of movement and protected them from oppres-
sive state policies and taxes meant to hinder their mobility. Secondly, the
chapter explores the laws governing women’s usufruct rights, highlight-
ing the differences between their inheritance rights to private property
and their right to assume usufruct on state and waqf lands. Drawing on
elements of sharīʿa law, certain jurists afforded women broader usufruct
rights to arable lands than sultanic laws of the period. Third and finally,
the chapter addresses how muftīs asserted their control over waqf proper-
ties, thereby challenging state encroachment and control over such lands.
While jurists certainly did not seek to uproot the Ottoman land system,
they nonetheless wanted to ensure the integrity of sharīʿa law in the realm
of land tenure legislation, particularly in regards to arable waqf lands.
 CHAPTER ONE

GOVERNMENT, ECONOMY AND THE ADMINISTRATION

OF THE LAND TENURE SYSTEM IN OTTOMAN SYRIA

Government and Economy

In Ottoman imperial orders from the sixteenth century, Damascus is por-

trayed as a frontier land of sorts in the state’s attempts to ward off Bed-
ouin attacks on the settled population.1 Because the region was important
to the Ottomans for both religious and historical reasons, the state was
wary of Bedouin attacks which seemed to plague the region on occasion.
While the Ottoman state took such incursions seriously, it was not always
able to control the actions of various Bedouin forces.2 Although nomads
were tied to local and regional economies, instances of raids on villages,
caravans or even pilgrims continued to rouse the concern of the Otto-
man authorities. The priority of the state was to ensure the production
of sufficient supplies for the cities, armies, and the population in general,
particularly wheat and barley for which Syria was well known.3 Any forces
which jeopardized these processes of production and/or transport were
perceived by the state as a serious threat. Nevertheless, the Ottoman
administration recognized the economic ties that bound Bedouins and
villagers at the local level.
While the administrative institutions in the region were characteris-
tic of those established by the Ottomans in other provinces, they were
also shaped by circumstances unique to the area itself. The population of
southern Syria and Palestine was ruled by a governor-general (beylerbey)
situated in Damascus and also various district governors (sanjaq-beys or
bey). The districts or sanjaqs which made up the province included such
regions Ajlun and Lajjun, Nablus, Jaffa, Gaza, Ramla, and Jerusalem. Aside
from the governor, the administrative apparatus of the province (like
other provinces in the Empire) included other officials, such as the qāḍī

1 Uriel Heyd, Ottoman Documents on Palestine 1552–1615 (Oxford: Clarendon Press,

1960), 40.
2 Ibid.
3 Charles Issawi, An Economic History of the Middle East and North Africa (New York:
Columbia University Press, 1982), 118.
28 chapter one

al-qudah or chief judge, mutasallim or governor’s deputy, the defterdār

(treasurer), and the official muftī. Lower-ranking officials included the
nāyib (local deputy judge), clerks, market-inspectors and dragomans (offi-
cial interpreters, translators).4
While the duties of the governors included mobilizing troops, manag-
ing officials, ensuring public security, and collecting tax revenues (used
largely for supporting the pilgrimage to Mecca) from the officeholders
in the various districts, the qāḍīs, muftīs (be they official or non-official),
and the local deputy governors were responsible for the administration
and regulation of everyday affairs, particularly those concerning relations
between the reʿāyā (subject classes) and various state representatives.5
This government apparatus was, however, limited in important respects
by certain local realities. For one, provincial notables acquired a foothold
in the courts of the towns (staffed largely by officials from Damascus)
through marriage and other social ties. Also, the governor’s responsibility
for the pilgrimage caravan resulted in his absence from the province for
four months out of the year.6 Such circumstances limited the extent of
central government control over the province.
The seventeenth and eighteenth centuries witnessed the increasing
economic integration of the region as expanding trade networks bound
towns and villages to local, regional, and even global economies. It was
the southern regions of the province in particular that benefitted most
from this increasing integration. As Tucker explains,
In the seventeenth and eighteenth centuries, the center of commercial
activity continued to shift from northern to southern Syria, as a result of
a number of developments: war with Iran encouraged trade caravans to
use the Baghdad-Damascus route rather than the Isfahan-Aleppo route; the
growth of the Red Sea port of Jiddah privileged Damascus; and the pilgrim-
age caravan expanded, with Damascus as the primary locus for the assembly
of its pilgrims.7
Damascus became an important center of trade between the eastern and
western regions of the Empire—goods such as cotton, silk, oil, and glass
moved through the city’s markets. During this period, most of the city’s
trade was oriented towards other regions of the Empire and not Europe,

4 Heyd, Ottoman Documents on Palestine, 19, 41–42, 46 and Tucker, House of the Law,
22–23.
5 Heyd, Ottoman Documents on Palestine, 19.
6 Tucker, House of the Law, 23.
7 Ibid., 23–24.
 land tenure system in ottoman syria 29

largely because of the natural mountain barrier between the city and
the Mediterranean coast.8 The importance of Damascus as an economic
center was also tied to the hajj, the annual pilgrimage to Mecca. Indeed,
Damascus was a meeting point for pilgrims from all parts of the Empire
who wanted to join the caravan organized under the protection of the
state. According to Karl Barbir, the pilgrimage generated various trading
activities that benefitted Damascus and the surrounding regions including:
allowing for the transport of goods in both directions, providing opportu-
nities for pilgrims in Damascus and along the route to buy supplies for
the journey, and, conversely, providing opportunities for merchants and
the governor himself to engage in the selling of goods and supplies both
along the way and in Mecca.9
Although Damascus was an important center of commercial activity,
it was also surrounded by rich and productive towns and villages that
promoted a vibrant economy. The towns of Jerusalem, Nablus, and Ramla
engaged in an active olive oil trade and were centers of production with
thriving soap industries and developed handicraft production.10 Thus,
these towns were important centers of trade and manufacturing in their
own right. In his study of Jabal Nablus, for example, Doumani argues that
the expansion of commercial agriculture and the development of sophis-
ticated trade networks transformed Nablus into the “trading and manu-
facturing center of Palestine.”11 These regions also furnished raw materials
(cotton came from Ramla and olive oil, alkali, and cotton from Nablus)
for the Damascene textile industry and provided markets for finished
goods coming from the city. The rural hinterland played an important
role in the development of these towns, providing most of the resources
that enabled them to thrive. By the seventeenth and eighteenth centu-
ries, increased trade with Palestinian coastal regions (particularly Sayda)
tied these towns to a broader global economy. Overall, the region expe-
rienced substantial growth in both industry and trade during this period,
and greater integration through thriving rural-urban trade networks and
growing economic ties to Europe.12

8 Ibid., 26.
9 Karl Barbir, Ottoman Rule in Damascus, 1708–1758 (Princeton: Princeton University
Press, 1980), 162–67. See also Tucker, House of the Law, 26–27.
10 Tucker, House of the Law, 24.
11 Doumani, Rediscovering Palestine, 236.
12 Tucker, House of the Law, 24, 27–28 and ʿAbdul-Karim Rafeq, The Province of Damas-
cus, 1723–1783 (Beirut: Khayats, 1966), 76.
30 chapter one

Environment and Agriculture

According to Dick Douwes, the spread of irrigated farming can be dated

back to the fifth and early sixth centuries. He points out that the pop-
ulation growth in the fertile plains of Syria was a direct result of the
investments made in irrigation. By the late Byzantine period, however,
agriculture in inner Syria began to slowly decline. Although initially the
Umayyad caliphs of Damascus did a fair job in maintaining the irrigation
systems, by the end of the empire, in the middle of the eighth century,
there was increasing abandonment of settlements and irrigation projects,
resulting in population decline. With time, this resulted in a shift of the
regional political and economic center—from Baghdad to Cairo and, ulti-
mately, to Istanbul.13
Prior to the Middle Ages, most of the leaders of Syria were faced with
the constant challenge of how to keep the land productive, particularly
given the population fluctuations that characterized the region.14 Indeed,
during periods of crisis (i.e. wars or disease), peasants fled their villages
and took shelter in various towns and cities, but most returned back to
their homes or went to other places when the particular crisis subsided.
Such disruptions of tenure, however, adversely affected agricultural pro-
duction and the consistent collection of revenue. While the Mongol inva-
sions certainly had an impact on Syria, Douwes points out that it is not
clear if they resulted in the depopulation of certain villages in the long-
term.15 Ultimately, it seems that while variations in climate continued to
affect patterns of land use, the settled population of the fertile plains of
inland Syria began to stabilize from the late Middle Ages onwards.16
The fatāwā and agricultural handbooks of the period make reference to
various forms of agricultural production in the Syrian countryside, includ-
ing wheat and barley cultivation, orchards, groves, and vineyards.17 ʿAbd
al-Ghanī al-Nābulusī’s eighteenth-century agricultural handbook contains

13 Dick Douwes, Ottomans in Syria: A History of Justice and Oppression (London; New
York: I.B. Tauris Publishers, 2000), 18; and Marshall Hodgson, Venture of Islam, Conscience
and History in a World Civilization (Chicago: University of Chicago Press, 1974), 1:286.
14 Douwes, Ottomans in Syria, 18.
15 Ibid.
16 Ibid., 19.
17 ʿAbd al-Ghanī ibn Ismaʿīl al-Nābulusī, ʿAlam al-malaha fi ʿilm al-filaha (Beirut: Man-
shurat Dar al-Afaq al-Jadida, 1979); and Jafar ibn Muḥammad Baytī, Misbah al-fallah fi
al-tibb wa-al-ziraʿa (Beirut: Dar al-Bashair al-Islamiya lil-Tibaa wa-al-Nashr wa al-Tawzi,
1997).
 land tenure system in ottoman syria 31

detailed information on the best methods for growing and maintaining

various fruit trees (including date, grape, fig, and berry trees). Al-Nābulusī
also provides comprehensive advice on appropriate fertilization, water-
ing, etc. for vegetable gardens and fields. Diversified agriculture was the
common practice of the day. According to Faruk Tabak, the various forms
of crop rotation practiced in different regions of the Fertile Crescent dur-
ing the eighteenth century shaped not only the nature of agricultural pro-
duction in the region, but also patterns of economic exchange.18 The focus
on summer crop production in the maritime plains and cereal production
in the interior ultimately resulted in a system of economic exchange in
“which the southern and coastal provinces specialized in the cultivation
of export crops, and the inland and northern provinces furnished the for-
mer with foodstuffs and labor.”19
The leasing or sharecropping of vineyards, orchards or groves (which
could be state, waqf or mulk in nature) to tenants for specified periods of
time was the common practice of the day. The sharecropping contract,
however, was more prevalent on lands dominated by cereal cultivation.
Because of the emphasis placed on cereal production by the state itself,
control of such fields was a constant cause of contention between the cen-
tral and provincial administration of the state, private proprietors, waqf
administrators, state officials, army officers, and tenant cultivators. The
relationship between these various groups was not determined solely by
their respective political and economic power, but also by the legal norms
established by the Ottoman state and Muslim jurists. The formulation of
these legal norms drew on the social and cultural traditions of the Near
East, the Islamic legal tradition itself, and the ideals and practices of the
Ottoman administration.

Administration of Lands

Most arable lands in the Ottoman Empire were held by the state or as reli-
gious endowments. The latter were often established by the state, but in
some cases, particularly from the eighteenth century onwards, by provin-
cial officials. Both state and waqf lands were cultivated by ­sharecroppers

18 Faruk Tabak, “Agrarian Fluctuations and Modes of Labor Control in the Western Arc
of the Fertile Crescent, c. 1700–1850,” in Landholding and Commercial Agriculture in the
Middle East, eds. Caglar Keyder and Faruk Tabak (Albany: State University of New York
Press, 1991), 146.
19 Ibid.
32 chapter one

and tenants whose relationship to the state was usually mediated by a

myriad of forces including state officials, waqf overseers, Islamic judges
(qāḍīs), and muftīs. Not being owned by the peasants, state lands were
not subject to the regulations of the sharīʿa that applied to full property
(mulk) or even to waqf in such areas as sale, exchange, and inheritance.
However, the agrarian qanūn was shaped by the land tenure laws con-
tained in the sharīʿa. Here, Abū al-Suʿūd, the Shaykh al-Islām from AH
955–983/AD 1548–1575, played an important role in reconciling the two
laws.20 Usufruct rights on waqf lands pose an interesting dilemma as will
be highlighted in this paper. While the state certainly sought to regulate
the revenues accruing to the public treasury from waqf properties, it also
had to contend with the fact that such properties were traditionally under
the jurisdiction of Islamic law.21 Thus, Islamic legal officials were left to
define the role of waqf founders, beneficiaries, and officials.
The land laws articulated by Ḥanafī muftīs and legal scholars are pre-
dominantly concerned with regulating the relationship between tenants
and/or sharecroppers and their overseers. This chapter examines how
both state and waqf lands were organized and administered, providing
insight into the various forces which shaped and governed the role of cul-
tivators. The first section provides an overview of the origins, organiza-
tion, and administration of state or mīrī lands and their evolution under
the Ottomans, as well as the role of Ḥanafī jurists in institutionalizing
the Ottoman land regime. The final section of the chapter examines waqf
properties in more detail, specifically the rights and duties of the waqf
founder, the beneficiary(ies), and the administrator(s), the overall charac-
teristics of a waqf and why they were established, the distribution of waqf
income, and the exchange/sale of waqf property.
Not surprisingly, the legal literature addresses the administration of
waqf properties in more detail. As the main beneficiaries of many waqfs,
the ʿulamāʾ had a vested interest in ensuring the proper management of
such properties. However, as bearers of the Islamic legal tradition, they
also had a religious/moral obligation to protect the integrity of religious
endowments which, in theory, were often established to benefit the
­public good. Legal thinkers understood this responsibility and took it
quite ­seriously.

20 Gerber, Islamic Law and Culture, 29. See Colin Imber, Ebu’s-su’ud: The Islamic Legal
Tradition (Edinburg: Edinburg University Press, 1997).
21 Singer, Palestinian Peasants, 48; and Heyd, Ottoman Documents on Palestine, 139–47.
 land tenure system in ottoman syria 33

This is not to say that the administration of state lands was somehow less
important, but rather that the state played a more prominent role (through
qanūn) in defining the role of its appointed officials on state lands, while
legal scholars played a more regulatory and interpretive role in applying the
law to govern relations between state officials and the cultivators on state
lands. In doing this, however, jurists defined and redefined the role of such
officials in light of changing social and economic realities.
Thus, the greater attention given in the fatāwā to waqf lands is in part
due to the role of qanūn vs. sharīʿa in the realm of agrarian law, an issue
that will be taken up in more detail in chapter four. Although the legal
opinions issued by Ḥanafī muftīs were clearly shaped by qanūn, the qanūn
limited the jurisdiction of the sharīʿa over most arable land by designating
a large portion of it as mīrī, or state-owned. While Islamic law as articu-
lated by muftīs was more reticent on issues pertaining to the adminis-
tration of state lands, legal scholars nevertheless took a keen interest, as
discussed in chapters two, three, and four, in defining the rights and obli-
gations of tenants and sharecroppers who worked state lands.

State Lands
By the early seventeenth century, the Ottomans classified most arable
land as mīrī, or state owned (this land is also referred to in the fatāwā
as sulṭānī or arādī bayt al-māl, lands of the public treasury). These lands
could not be sold or mortgaged and, at least in theory, inheritance rights
were limited. The Ottoman system of land tenure, influenced by practices
in the earlier Byzantine and Sassanid empires, divided interest in the land
between the state, the fief-holders, and peasant cultivators.22
By the late fourteenth century, the Ottomans implemented a system of
revenue collection in which the state lands of the Empire were divided
into a number of tīmārs (lands granted by the state to appointed officials,
referred to as tīmārīs or sipāhīs, entitling them to a certain income from
the land in exchange for military service and the collection of taxes) which
provided the state with personnel and supplies necessary to meet the
needs of its military apparatus.23 Tīmārīs, therefore, had a clear military

22 Halil Inalcik, “The Ottoman State: Economy and Society, 1300–1600,” in An Economic
and Social History of the Ottoman Empire, 1300–1914, eds. Halil Inalcik and Donald Quataert
(Cambridge: Cambridge University Press, 1994), 103. See also Haque, Landlord and Peasant,
chapters 3–5; Imber, Ebu’s-su’ud, 116; and Barnes, Introduction to Religious Foundations, 31.
23 Inalcik, “The Ottoman State,” 139. The taxes that tīmārīs collected from the peas-
ants included the ʿushr, or proportional tribute also known as kharāj muqāsama, and the
34 chapter one

duty to the state. Their fulfillment of such duties, however, was not always
consistent. Imperial firmāns from the early Ottoman period indicate that
the state faced certain challenges in its efforts to galvanize military per-
sonnel when needed. For example, it was not unusual for certain tīmārīs
to live outside of their assigned sanjaqs and pursue other administrative
activities in order to evade military service.24
Although tīmār holders were unable to own or use the land for their
own benefit, they did possess administrative control over all the arable
lands (vacant or possessed by the peasants), pastures, wastelands, fruit
trees, forests or waters within their tīmār territories. In theory, fruits from
the naturally grown trees also belonged to them (even though the trees
may have not). While several scholars have emphasized how a system
of tax farming or iltizām (where the collection of taxes for particular
areas is assigned to individuals, putting the taxpayers at the mercy of
the tax collector) was instituted by the Ottomans in Syria to secure rev-
enue collection,25 the fatāwā and commentaries illustrate that the tīmār
system was not eradicated. In fact, muftīs such as al-Ramlī, al-Nābulusī,
Ḥāmid al-ʿImādī, and Ibn ʿĀbidīn make several references to tīmārs and
tīmārīs. In accordance with state law, Ḥāmid al-ʿImādī and Ibn ʿĀbidīn, for
example, stipulate that the tīmārī or sipāhī is responsible for delegating
who should assume usufruct rights on state lands after the death of the
usufruct holders.26 Usually, such rights were passed on to the son of the
deceased. In cases, however, when there was no son, the tīmārī had more
flexibility in deciding who should assume usufruct rights. The tīmārī ’s
approval was also needed if an existing cultivator wanted to assign and/
or transfer his/her usufruct rights on the land to another.27 Finally, while
the fatāwā make no direct mention of the institution of iltizām, they do

kharaj muwazzaf, a tax based on the area cultivated. Tīmārīs had the right to collect such
dues even before they yielding of the crop. See ʿAbd al-Ghānī ibn Ismāʿīl al- Nābulusī,
Fatawa al-Nabulusi, Zahiriya 2684, fol. 75.
24 Heyd, Ottoman Documents on Palestine, 67.
25 Weulersse, Paysans de Syrie, 30; Rafeq, “Changes in the Relationship between the
Ottoman Central Administration and the Syrian Provinces from the Sixteenth to the Eigh-
teenth Centuries,” in Studies in Eighteenth Century Islamic History, eds. Thomas Naff and
Roger Owen (Carbondale: Southern Illinois University Press, 1977), 53–73; and ʿAbdul-
Rahim Abu-Husayn, “The Iltizam of Mansur Furaykh: A Case Study of Iltizam in Sixteenth
Century Syria,” in Land Tenure and Social Transformation, 249–56.
26 Ibn ʿĀbidīn, Al-ʿUqud, 2:207–8.
27 Ismāʿīl ibn ʿAlī al-Ḥāʾik, Bab mashadd al-maska min fatawi al-shaykh Ismaʿil al-Ha‌ʾik
rahima-hu ʿllah, Zahiriya 5677, fol. 10a; ʿAlī al-ʿImādī, Al-Nur al-mubin fi fatawi al-ʾImadiyin,
Zahiriya 7508, fols. 69a–69b.
 land tenure system in ottoman syria 35

nonetheless make reference to various transformations which were taking

place in the tīmār system itself. These various issues will be examined in
further detail in chapters two and three.
According to Ottoman law, if a peasant held the actual possession of
land for a significant period of time, and no one disputed it, then this
entitled the cultivator to certain possession rights over the land he/she
worked (generally described as taṣarruf ), including rights of transfer (of
the usufruct rights) to another farmer, bequeathing to sons, and preemi-
nent rights of acquisition by wife, daughter and brother; these latter indi-
viduals, however, were required to pay a tāpū fee before assuming such
rights.28 In the fatāwā, such possession rights (and more) are included
within the rubric of various legal terms such as: ḥaqq al-taṣarruf, ḥaqq
al-qarār, ḥaqq al-muzāraʿa, mashadd al-maska, and al-kirdār. The differ-
ences between these concepts and the rights they offered tenants and
sharecroppers is addressed in chapter three. In spite of the privileges
that could be enjoyed by such cultivators, they were not entitled to any
ownership rights over the land itself. Thus, in theory, the possessor of
state-owned land could not sell, endow, mortgage or change the original
use of the land by turning it into a vineyard or orchard or by construct-
ing buildings on it. However, as the legal literature documents, muftīs of
Ottoman Syria empowered cultivators on state lands by stipulating that
trees or buildings added to the land through their own labor strengthened
their possession rights, and by allowing them, under certain conditions, to
leave the land at will without being forced to return.

The Ḥanafī Law on Land Tenure

In classical Islamic jurisprudence, ownership of land was based on the

concept of conquest and the right of the Islamic community as God’s
trustees. Classical jurists made a distinction between tithe (ʿushr) lands
and tribute (kharāj). The former included lands that the ruler distributed
among Muslim soldiers during conquest or whose owners accepted Islam

28 Inalcik, “The Ottoman State,” 108. The tāpū referred to a tax paid by certain family
members of the tāpū holder in order to acquire the rights associated with the tāpū con-
tract after his/her death. See also Inalcik, “Land Problems,” 223. The tāpū contract was a
long-term lease made directly with the peasant, who in turn gained usufruct rights and
could subsequently pass these rights to male descendants upon death (Inalcik, “The Otto-
man State,” 139). Tāpū contracts existed on such lands as fields for grain cultivation, pas-
ture lands, meadows, and lands reclaimed by peasants (idem., 108).
36 chapter one

voluntarily. Tribute lands were those that were conquered by force but
whose residents could remain on the land in exchange for the payment
of tribute. The rate of taxation on tithe lands was capped at one-tenth
of the produce, while tribute was levied in one of two ways—either as
a portion of the land’s produce (kharāj muqāsama) or as a fixed sum
(kharāj muwazzaf ). Ownership of both types of land lay in the hands of
the occupiers who paid taxes on the land.29 While state ownership of land
was not an Ottoman invention, by the late fifteenth century the state’s
control over arable lands expanded and benefitted from greater ideologi-
cal support from the ʿulamāʾ.
Baber Johansen’s work has contributed greatly to our understanding of
the evolution of Ḥanafī thought as it related to land tenure and the role of
the state in acquiring arable lands.30 His analysis sheds light on how the
Ḥanafī legal establishment came to justify the imposition of the Ottoman
land system after the fifteenth century. As indicated earlier, in classical
Ḥanafī law, kharāj (or tribute) paying lands were considered to be the
property of the original peasant inhabitants of the land. There were only
certain conditions under which the state could gain control over kharāj
paying lands. In cases when the kharāj payer abandoned his/her land,
was unable to pay the tax, or died without heirs, the state was entitled
to assume responsibility for the cultivation of the land. There were limi-
tations, however, that governed the amount of control which the state
could exercise over such properties (referred to as sequestrated lands or
arādī al-ḥauz). If the kharāj payer evaded taxation or abandoned his land,
the state could lease or sharecrop the land to cultivators. These tenants,
however, did not have ownership rights to the land since they were not
the original property holders. In classical Ḥanafī law, the state acquired
full ownership rights over these lands only when the kharāj payer died
without legal heirs.31 This point is reiterated in the eighteenth century
by ʿUbaydu’llah ibn ʿAbd al-Ghānī in his legal treatise on land (dated
1796) which provides a detailed breakdown of the different types of land
(including ʿushrīya, kharājīya, arādī al-mamlaka, and arādī al-ḥauz).32

29 Imber, Ebu’s-su’ud, pp. 116–17. For more on kharāj paying lands in classical Ḥanafī
law, see Johansen, Land Tax and Rent, 11, 18 and Haque, Landlord and Peasant, 207–9.
30 Johansen, Land Tax and Rent.
31 Johansen, Land Tax and Rent, 14–15; Cuno, “Miri or Milk?,” 124–25; and Imber,
Ebu’s-su’ud, pp. 118–19.
32 ʿUbaydu’llah ibn ʿAbd al-Ghānī , Al-Nur al-badi fi ahkam al-aradi, Zahiriya 4400, fols.
135a, 135b. According to Mundy and Saumarez Smith, little is known about ʿUbaydu’llah
except that he claimed to have studied with a learned scholar or shaykh who worked with
a sheikh who studied with al-Nābulusī (Governing Property, 31).
 land tenure system in ottoman syria 37

Johansen traces how the status of peasant proprietors from the fifteenth
century onwards increasingly deteriorated as they were transformed from
owners into sharecroppers and tenants. It was during this period, as he
points out, that the Egyptian Ḥanafī muftī Ibn al-Humām (AH 790–861/AD
1388–1457) devised an explanation of agrarian relations in the fifteenth
century that instigated a legal revolution of sorts in regard to the status of
peasant proprietors. He introduced the notion of the ‘death of the kharāj
payer’ to emphasize that what was being taken from the cultivators was
no longer a tax establishing ownership, but rather a rent. Thus, kharāj-
paying cultivators were no longer treated as owners of the lands they
worked.33 Ibn al-Humām thus presented a situation that challenged the
tenets of classical Ḥanafī doctrine.
As Cuno explains, Ibn al-Humām put forth this explanation because
the prevailing form of agrarian administration in the Islamic Middle East
had changed by the fifteenth century. The collection of the kharāj by tax
farmers and eventually the military replaced direct collection by the state.
These tax farmers, however, often abused their rights (at times by claim-
ing ownership rights to the land). This, combined with the fact that the
later Mamluk state sanctioned the selling of state lands in order to gather
needed funds, resulted in an increase in the number of private landed
estates in both Syria and Egypt.34 Thus, referring to Ibn Humām, Cuno
summarizes,
[He] sought to come to terms with a major social and economic transforma-
tion in his lifetime, the creation of a ‘rentier class’ through the transfer of
state land into private hands. On the one hand he offered his speculative
thesis of the ‘death of the proprietors’ to explain how this transformation
had become possible, but on the other hand he clearly indicated his opposi-
tion to it.35
In the mid sixteenth century, the Egyptian Ḥanafī muftī Ibn Nujaym used
Ibn al-Humām’s argument to uphold the interests of the ‘rentier class’
whose formation Ibn al-Humām had opposed. In an influential treatise
entitled al-Tuhfa al-mardiya fi al-aradi al-Misriya, Ibn Nujaym treated the
‘death of the proprietors’ and the devolution of lands to the public trea-
sury as a given. In doing this, he heralded a new era of sorts in Ḥanafī
law whereby the doctrine of state landownership came to be accepted
by mainstream Ḥanafī jurists, partly in order to defend the interests of

33 Johansen, Land Tax and Rent, 85.

34 Cuno, “Miri or Milk?,” 125.
35 Ibid., 127.
38 chapter one

the ‘rentier class’ to which they belonged. Eager to protect the waqfs and
private holdings that the political, military and religious elite had in fact
purchased from the public treasury, Ibn Nujaym accepted the premise
that the ruler was the source of most property rights (the basis of land
laws formulated by the Ottomans). The landowning classes essentially
wanted to protect their lands from state control and taxation.36 Accord-
ing to Johansen, the source of property rights now hinged on a “commod-
ity exchange,” or, the land being bought directly from the ruler or public
treasury, rather than (as in classical law) “the confirmation by the ruler of
the primordial rights of the peasants.”37 Thus, Ibn Nujaym articulated
a legal justification for the expansion of the Ottoman state land system
in the Arab provinces. Ultimately, by the late seventeenth century, the
Ḥanafī legal establishment for the most part accepted the notion of the
‘death of the proprietors’ and used it to justify the implementation of the
Ottoman land system in Egypt and Syria.38
The transformation of kharāj into rent and the prevalence of state
owned lands in both Egypt and al-Sham seems to have become estab-
lished fact by the eighteenth century as ʿUbaydu’llah ibn ʿAbd al-Ghānī
testifies in his legal treatise. He maintains that lands throughout Egypt
and al-Sham are kharāj lands, but what is collected from the peasants
resembles a rent rather than a kharāj tax as the lands are not owned by
their cultivators. The latter reality, as he explains, is due to the demise
of the original owners of the land and the subsequent takeover of these
lands by the treasury. While ʿUbaydu’llah recognizes the ownership rights
of kharāj payers, he is careful to distinguish between the latter and those
who simply cultivate land as leaseholders or sharecroppers. Furthermore,
ʿUbaydu’llah proves to be mindful of classical Ḥanafī law by highlighting
the limits governing the state’s control over different kinds of kharāj pay-
ing lands taken over by the treasury (bayt al-māl). However, he propagates
the argument put forth by Ibn Nujaym which maintains that those lands
confiscated by the state due to the death of the proprietors are no longer
subject to kharāj.39 ʿUbaydu’llah explains, “its buyer is under no such obli-
gation, for the reason that the sultan has collected the price of the asset
in favor of bayt al-māl and the kharāj is thus no more the function of the
said land. Should its new owner endow it, then there shall be no kharāj

36 Johansen, Land Tax and Rent, 87–92; Cuno, “Miri or Milk?,” 127–131.
37 Johansen, Land Tax and Rent, 91.
38 Cuno, “Miri or Milk?,” 130, 134.
39 For a summary of Ibn Nujaym’s argument, see Johansen, Land Tax and Rent, 88–90.
 land tenure system in ottoman syria 39

attached to the endowment.”40 This viewpoint challenges classical Ḥanafī

law which held that proprietary rights were in fact confirmed by the pay-
ments of taxes. In cases when an owner fails to cultivate the land, the
treasury is entitled to take over the kharāj paying land and lease it out to
tenant farmer(s), deducting the kharāj (owed to the state) from the rent
owed to the owner. If the treasury is unable to find someone to lease or
sharecrop the land, then it may sell the land and deduct the kharāj due
the state for the previous year (with the rest of the amount going to the
owner), while continuing to collect the kharāj from the latest buyer.41
Ultimately, the expansion of the state land system was cemented by
laws laid down by Abū al-Suʿūd in the mid sixteenth century as well. He
redefined the nature of both tithe and tribute as laid out in Classical Ḥanafī
law. Essentially, he stipulated that mīrī land was in fact tribute land (with
the tax on it being ‘tribute’) and that the tithe was equivalent to pro-
portional tribute (kharāj muqāsama), in effect providing the sultan with
broader powers to raise taxes (beyond the one-tenth specified in classical
law). Finally, he clearly distinguished between raqaba (ownership of land)
and taṣarruf (ownership of usufruct), with the former being the property
of the treasury and the latter being on loan to the peasantry.42
While the scholarship has provided a clearer understanding of the
legal and social process by which peasant proprietors were increasingly
transformed into sharecroppers and tenants on state and waqf lands, the
question that arises is—what sort of legal rights and obligations did such
cultivators have subsequent to this transformation? It is important to
point out, furthermore, that while many seventeenth- and eighteenth-
century Ḥanafī jurists upheld the laws governing state landownership,
they were also critical of transgressions on the part of state officials that
were detrimental to the proper cultivation of the land and the rights of
cultivators with legitimate tenure on the land. This will be examined in
more detail in chapters three and four.

Authority and the Delegation of Power

The core foundations of Ottoman state power included the dynastic rule of
each sultan and the institutions established to uphold his rule and to gov-
ern the provinces of the Empire. One of the defining principles of Ottoman

40 Al-Nur al-badi fi ahkam al-aradi, Zahiriya 4400, fol. 136b.

41 Ibid., fols. 135a, 135b, 136b, 140a.
42 Imber, Ebu’s-su’ud, 123–25.
40 chapter one

government centered on the division between rulers and ruled. ­Forming

the majority of the reʿāyā or taxpaying class, peasants (which included
Muslims, Christians, and Jews) were the basis of Ottoman strength and
the state carefully monitored their status and well-being, as it did the state
lands they worked. The state’s wealth and, of course, that of the ʿaskerī
class (ruling class which encompassed military, administrative, and reli-
gious officials), as well as the subsistence of the agricultural laborers them-
selves, depended on the productive capabilities of the reʿāyā. The state, on
its part, upheld the classical Ottoman theoretical concept of good govern-
ment whereby the reʿāyā held an essential place in the ‘circle of justice.’
The state’s policies vis-à-vis the reʿāyā class were tied to fiscal issues, the
concern that the armies and cities be properly provisioned, and a desire
to limit the power of local officials and ensure the state’s inalienable right
to revenues. Thus, the subject classes had to be protected from injustices
and abuses inflicted by the ʿaskerī class, particularly those involving ille-
gal financial impositions or the obstruction of peasant production. This
was the essence of justice in the Ottoman context. Such protection was
aimed not only at ensuring consistent production on the part of peasant
and artisanal populations, but also the consistent flow of revenue to the
state through taxation. Ultimately, the state and ruling apparatus were
supported by the labor and taxes produced by the reʿāyā class.43
In addition to holding a prestigious status in society, the ruling elite
(ʿaskerī) also enjoyed certain privileges such as tax exemptions. Among
the ʿaskerī class, the provincial cavalrymen (sipāhīs or tīmārīs) carried out
both administrative and military functions. Their salaries were derived
from the taxes that they collected from agricultural lands designated as
tīmārs. In return for this right awarded to them by the sultans, the sipāhīs
were responsible for overseeing their tīmārs, reporting for military service
when summoned, and providing a certain number of armed cavalry.44
Alongside the military and the bureaucrats, the ʿulamāʾ were also
members of the Ottoman ruling class who held a very respected place
in society. While the association of sultanic law with religious law was
derived from pre-Islamic traditions, the Ottomans, from an organizational
standpoint, took this relationship to a new level. Distinct from Islamic

43 Douwes, Ottomans in Syria, 2–4; William L. Cleveland, A History of the Modern Middle
East, 2nd ed. (Boulder: Westview Press, 2000), 46; and Singer, Palestinian Peasants, 2.
44 Cleveland, Modern Middle East, 46, 48. See also Sydney Nettleton Fisher and William
Ochsenwald, The Middle East: A History, 5th ed. (New York; San Francisco: The McGraw-
Hill Companies, Inc., 1997), 1:195.
 land tenure system in ottoman syria 41

empires that preceded them, the Ottomans, in a bid to uphold sharīʿa

principles, more diligently organized the qāḍīs (judges) into an official
hierarchy and appointed them throughout the various provinces. Eventu-
ally, this led to the rise of the Shaykh al-Islām as the chief religious official
of the empire. His main roles included appointing qāḍīs and madrasa
teachers in posts throughout the Empire and issuing legal opinions to
sultans when they sought to pass certain administrative and/or fiscal
laws.45 The Ottoman sultans demonstrated their commitment to Islamic
­principles by implementing the sharīʿa and establishing an Islamic legal
system throughout the empire. Sharīʿa law, therefore, did place some
restrictions on sultanic power as well as the power exercised by officials
at the local level.46
The decentralized nature of Ottoman power structure also acted as a
restraint on the sultan’s power. Due in part to the sheer size of the empire,
certain powers had to be delegated to provincial officials. On one level,
the state faced the threat of state officials themselves acquiring an inde-
pendent power base in the provinces. On another level, controlling the
actions of office-holders in the provinces became more and more of a
challenge as local forces became increasingly involved in the affairs of
provincial government during the course of the seventeenth and eigh-
teenth centuries. Ultimately, the growth of the ʿaskerī class threatened
not only the state, but also the productive capabilities of the reʿāyā as the
financial exactions on the latter increased.47
Local officials were responsible for the collection of taxes and ensuring
proper and efficient production. These local forces, however, often com-
peted with one another as well as with the central government for control
over revenues. In order to prevent transgressions on the part of local offi-
cials, the central authority imposed, or attempted to impose, punishments
on those who committed acts of injustice (the courts were instrumental
in regulating the actions of such officials). This latter policy (along with
others, such as the rotation of the senior offices) acted as an important
deterrent to those local officials seeking to abuse their powers. More than
this, however, such policies, as Dick Douwes emphasizes, were meant to
preserve the state’s ‘moral’ hold on the population—a relatively free and

45 Cleveland, Modern Middle East, 49.

46 Douwes, Ottomans in Syria, 5, Fisher and Ochsenwald, The Middle East, 197–98.
47 Douwes, Ottomans in Syria, 5.
42 chapter one

unburdened subject population translated into consistent and efficient

production.48
The abuse of power by local officials is documented in the legal sources
of the period. The question that arises, however, is what was the role of
the muftī in this web of power relations? Was he merely an instrument
of the state who implemented this ‘moral order’? Was he a defender of
the common man/woman, represented here by tenants and sharecrop-
pers? Was he a mediator between these various players—the state, local
officials and the subject classes? Depending on the problem/issue(s) at
hand, the muftī, as will be illustrated, assumed all of these roles at differ-
ent times.

Waqf Lands

There is a great deal of attention in the legal literature given to waqf

­properties and the rights and obligations of tenants, sharecroppers, waqf
beneficiaries, and waqf overseers. In order to understand the implications
of the legal discourse surrounding waqfs, it is first necessary to situate
waqf-making both legally and historically.

Characteristics of Waqfs
Waqfs are religious endowments established and governed by guidelines
laid out in Islamic law since the eighth century.49 The revenues of the
properties or objects endowed (mawqūf ) are meant to support a desig-
nated beneficiary (mawqūf ʿalayhī).50 Individuals of various backgrounds
established pious foundations throughout the Muslim world. However, a
great deal of the written evidence available focuses on the endowments
established by wealthy and influential individuals. Nevertheless, in theory,
there were only two requirements that governed the establishment of a
waqf property: the property endowed had to be owned by the founder
and the founder had to be a sane adult with no unfulfilled obligations

48 Ibid., 5–6.
49 For more on the evolution of the law of waqf, see Said Amir Arjomand, “Philanthropy,
the Law, and Public Policy in the Islamic World before the Modern Era,” in Philanthropy
in the World’s Traditions, eds. Warren F. Ilchman, Stanley N. Katz, and Edward L. Queen II
(Bloomington; Indianapolis: Indiana University Press, 1998), 110–13.
50 Muḥammad ʿAlāʾ al-dīn ibn ʿAlī al-Ḥaṣkafī, The Durr-ul-Mukhtar, Being the Commen-
tary of the Tanvirul Absar of Muhammad bin Abdullah Tamartashi (Lahore: Law Publishing
Company, 1913), 332–33.
 land tenure system in ottoman syria 43

when establishing the endowment (thus there could be no claims against

the property).51
Alongside the tīmār, the waqf institution was a common mechanism
for controlling and overseeing rural land and urban assets, and for the
redistribution of economic surplus. Between 1600–1800, the quantity of
landed waqfs increased significantly across the empire, with two-thirds to
three-fourths of the land designated as waqf by the nineteenth century.52
There was a clear separation in a waqf endowment between the actual
ownership of the property (raqaba) and the usufruct (taṣarruf ), or the
profits which accrued from its use. The beneficiaries of a particular waqf
(the founder of a waqf could name any person or group as beneficiaries)
were entitled to part of the usufruct. They did not own the property and
could not exchange it by sale or other means, except with the permission
of the waqf ’s overseer (mutawallī).53
Thus, in several respects, waqf and tīmār were very much alike. The
juridical establishment of the seventeenth through early nineteenth cen-
tury, in fact, treats the status of cultivators on both state and waqf lands
with a great deal of consistency. Nevertheless, as this study highlights,
jurists articulated some variations between the legal role of cultivators on
each type of land. By the late nineteenth century, however, the legal affin-
ity between state and waqf lands on issues pertaining to usufruct became
more pronounced. The muftī of Damascus Maḥmūd ibn Nasīb al-Ḥamzāwī
al-Ḥusaynī (AH 1234–1305/AD 1818–87), for example, explicitly places waqf
and mīrī land in the same category when it comes to the rights and obliga-
tions of tenants on such lands—not surprising given that waqf lands had
become largely incorporated into the state bureaucracy by this time.54
In the case of both lands, ownership and usufruct were clearly sepa-
rated. The differences between the two lay in the purpose of the endow-
ment and in the social groups entitled to the profit. While those who
benefitted from the tīmār were exclusively members of the governing
elite, waqf institutions frequently designated the poor, Sufīs or students
in a madrasa, or family members as beneficiaries.

51 Amy Singer, Constructing Ottoman Beneficence: An Imperial Soup Kitchen in Jerusalem

(Albany: State University of New York Press, 2002), 18.
52 Barnes, Introduction to Religious Foundations, 42, 44.
53 Ḥaṣkafī, The Durr-ul-Mukhtar, 350.
54 Maḥmūd ibn Nasīb al-Ḥamzāwī al-Ḥusaynī, Al-Ikhbar ʿan haqq al-qarar in Al-Majmuʾ
min al-rasaʾil, Zahiriya 100, fols. 47a, 47b, 48b, 49a. See also Mundy and Saumarez-Smith,
Governing Property, 49.
44 chapter one

In practice, several types of immovable and movable properties were

endowed, including buildings, fields, gardens, trees, various commercial
structures, Qurʾāns, furnishings for mosques, weapons, and animals.55
Although some disagreements existed among the schools pertaining
to what movable items could be endowed, the most controversial waqf
arrangement during the sixteenth and seventeenth centuries was the cash
waqf (waqf al-nuqūd)—an arrangement in which revenue was generated
through the interest earned on waqf funds. Because the taking of interest
(ribā) was prohibited in Islamic law, the cash waqf was an issue of conten-
tion among jurists. Nevertheless, as Singer points out, cash endowments
provided an important source of credit throughout the Empire (leading in
some cases to peasant indebtedness). They were not, however, as popular
in the Arab provinces of the Empire.56
One of the defining characteristics of a waqf under Ḥanafī law is that
it must be made in perpetuity. However, the issue of the permanency
of waqfs generated debate among scholars of the various schools. Even
within the Ḥanafī school itself there was some disagreement. For exam-
ple, while Abū Ḥanīfa (d. AH 150/AD 767), founder of the Ḥanafī school,
emphasized that “waqfs were only permanent when made as part of the
final testament of the founder,” his student, Abu Yusuf (d. AH 182/AD
798), argued that “a waqf was irreversible, and this was the practice in the
Ottoman Empire.”57
Often times, in order to strengthen the legal validity of the waqf itself,
founders recorded and registered the endowment. Thus, in many cases,
at the initial establishment of a waqf, the elements which made up the
endowment were specified in an endowment deed (waqfiya). The amount
of detail included in a particular deed (which varied) determined the
extent of decision-making power left to the overseer and qāḍī in handling
the waqf. It was fairly common for the terms of such deeds to be incorpo-
rated into the sijill (court records) upon the initial establishment of the
waqf or at a later date. Essentially, the deed specified the ­beneficiaries, as

55 ʿAbd al-Ghānī al-Nābulusī provides a detailed overview of the various other mov-
ables that can be endowed and those that are disputed (Fatawa al-Nabulusi, Zahiriya 2684,
fol. 111b).
56 Singer, Constructing Ottoman Beneficence, 18. For more on the cash waqf, see Jon E.
Mandaville, “Usurious Piety: The Cash Waqf Controversy in the Ottoman Empire,” Inter-
national Journal of Middle East Studies 10 (1979): 289–308; and Ahmad Dallal, “The Islamic
Institution of Waqf: A Historical Overview,” in Islam and Social Policy, ed. Stephen P.
Heyneman (Nashville: Vanderbilt University Press, 2004), 21, 34.
57 Singer, Constructing Ottoman Beneficence, 20.
 land tenure system in ottoman syria 45

well as the condition that when they died or no longer existed, the rev-
enues would pass, for example, to the poor of Mecca and Medina.58 The
founder could also stipulate in the deed a number of conditions includ-
ing: the specific wages of the employees, the administrative organization
of the waqf, the distribution of revenues to certain beneficiaries, and the
founder’s right to revise the conditions of the waqf as laid out in the deed
(usually a one-time right).59
According to the legal literature, however, stipulations in waqf deeds
were often times not privileged over long held customary practices. This
was true regarding the borders and encompassing area of waqf properties
as practiced over time.60 Thus, in a case in which a waqf exerts control for
years over an orchard/garden, part of which potentially falls into another
waqf, al-Nābulusī rules that the first waqf does not need to present docu-
mented proof to justify its actions and that existing practice should pre-
vail, regardless of what is mentioned in the deed.61
The legal validity of an endowment, furthermore, did not necessar-
ily hinge on a waqf being formally registered. In a case involving a waqf
founder who passed away before registering his waqf but proceeded prop-
erly in every other way when endowing his property, al-Nābulusī rules
that bringing witnesses to attest to the said endowment (as was done in
this case) is sufficient to deem it correct and executable vis-à-vis those
who challenge its legality (in this case the waqf overseer) and that the
judge should issue a ruling that the waqf is admissible.62

Distribution of Waqf Income

Essentially, there were two different kinds of waqf properties, each with
its own distinct way of distributing surplus revenues. In the waqf khayrī or
charitable endowment, the revenue of the waqf went towards maintaining
colleges, mosques, and/or various public institutions and structures such
as hospitals and bridges. Also included here were those “awqāf dedicated
for the maintenance of the holy places in Mecca, Medina and Jerusalem
and paying for the needs of the wayfarers, . . . widows, orphans, the poor,

58 Ibid., 20–21.
59 Dallal, “Islamic Institution of Waqf,” 23–24.
60 Bab mashadd al-maska, Zahiriya 5677, fol. 10a. See also Fatawa al-Nabulusi, Zahiriya
2684, fols. 103b, 104a.
61 Fatawa al-Nabulusi, Zahiriya 2684, fol. 103b.
62 Ibid., fol. 110b.
46 chapter one

the aged, and the handicapped,. . . . and other needs.”63 The family waqf
or waqf ahlī, on the other hand, was one which benefitted the founder’s
descendants.
Because the waqf had to be maintained in the same condition in which
it was initially founded, the revenues generated from a waqf property had
to be applied towards its preservation. Any remaining revenue went to the
named beneficiaries. According to the law, the individual who benefitted
from the property was responsible for assuming the burden of any losses.
Ahmad Dallal gives the example of a house waqf to illustrate this point:
The inhabitants of a house waqf will pay the repairs of this house since they
enjoy its benefits. If, however, they fail to repair it due to neglect, poverty,
or unwillingness, then the administrator should obtain an approval from
the judge to let the house out . . . When these repairs are completed, the
house should be given back to the initial inhabitants for whom the house
was dedicated.64
The situation would be similar in the case of a neglected waqf land. The
beneficiary(ies) of a waqf land did not have to cultivate the land, even if
he/she (they) had the financial means to do so. Perhaps this is why the
law gave such attention to the role that sharecroppers and tenants played
on waqf lands. Beneficiaries, however, were always entitled to the benefit
accruing from such properties (as stated previously, they had no right to
the corpus itself ) and to a reinstatement of their rights once the property
was restored to its original condition.65
Similar to legal thinkers of the time, the Ottoman state placed a great
deal of importance on the overall maintenance of waqf properties.66 Aside
from having a financial stake in such properties, the state also perceived
itself has having a religious obligation to protect the condition of waqfs. It
held the position (as did jurists) that waqf revenues should first be spent
on upkeep and repair, with remaining funds then being distributed to
those entitled to a share.
The daily administration and functioning of a waqf property required
sufficient financial resources. In cases when the waqf ’s expenditures were
stipulated by the founder, the law made it clear that his/her wishes had

63 Dallal, “Islamic Institution of Waqf,” 18.

64 Ibid., 18–19.
65 Ibid. and Ḥaṣkafī, The Durr-ul-Mukhtar, 345.
66 For firmāns pertaining to upkeep and repair, see Heyd, Ottoman Documents on Pal-
estine, 155–58.
 land tenure system in ottoman syria 47

to be upheld. When the income of a particular waqf was insufficient, it

had to be spent on those individuals and/or items most important to the
overall mission of the waqf. The general hierarchy of expenditures was as
follows: the foundation itself, the key administrators who managed the
waqf, individuals whose jobs relate to the function of the waqf, and, lastly,
the beneficiaries themselves.67
When there were multiple beneficiaries, the revenues coming from the
rent were divided among them. If the rent was paid in advance and a ben-
eficiary died before the rent period ended (i.e. the expiration of the lease),
the beneficiary’s shares had to be passed on to his/her heirs. A beneficiary
was also legally entitled to forfeit his/her share (or a portion of that share)
to an individual(s) with no rights to the waqf.68
The muftīs were quite strict about the waqf founder’s rights over his/
her endowed property(ies). This is evident in a fatwā issued by al-Ramlī
pertaining to the pay of workers on a specific waqf property. The case
concerns a waqf charity in which each worker earns a specific amount
of money. The questions posed to al-Ramlī are: Can an employee take
more than the designated amount or not, and if someone took more for a
long period of time and claimed that this is a habit, would he be entitled
to do that or not? If the issue was referred to the sultan and he decreed
an increase over what the founder had specified, would that be accept-
able and the amount designated by the founder become void? Is this a
violation of sharīʿa law and can jobs be created in the waqf and would
the person who collected more money than the designated amount be
responsible for returning it to the waqf or not? Al-Ramlī responds:
No employee is entitled to receive more than his rights as determined by
the waqf founder, and he has to return it if he took it without any right
because this is a violation of the waqf founder’s will . . . no one has the right
to decide a position in the waqf without the permission of the founder, with
the exception of the nāẓir position because of the strong need for it . . .69
The waqf founder’s rights here superseded those of even the sultan him-
self. He has the right to determine the salaries and/ or compensation of
the laborers working for the waqf and the types of positions actually cre-
ated to run the waqf property. As implied here, the only position that

67 Dallal, “Islamic Institution of Waqf,” 19–20.

68 Ibn ʿĀbidīn, Al-ʿUqud, 1:184.
69 Khayr al-dīn ibn Aḥmad al-Ramlī, Kitab al-fatawa al-khayriya li-naf ʾ al-bariya (Cairo,
n.p., 1275 AH/1858 AD, 1276 AH/1859 AD), 1:192.
48 chapter one

could be created if need be without the permission of the founder was

that of the supervisor or overseer—presumably, the qāḍī had the author-
ity to appoint such an individual if the founder failed to do so. Muftīs,
however, as will be illustrated in chapter four, preferred when possible
to have the waqf founder appoint the mutawallī. Finally, al-Ramlī empha-
sizes that the founder’s decision-making rights in regards to his/ her par-
ticular waqf did not need legal approval at every turn. He had broad rights
in regard to the general functioning of the waqf. According to al-Ramlī,
decisions regarding the expenses and earnings, changes and/or exchanges
are the exclusive right of the founder. As for the condition that everything
needs to be written or uttered by the founder before a court of law and
recorded in Damascus, al-Ramlī maintains that this is not legally accept-
able, “for it is enough for him to say that he is the sole person entitled to
make a decision.”70 The assumption here was that the founder would act
in the best interest of the waqf at hand, rendering legal approval for deci-
sions unnecessary.
The law, as demonstrated here, provided a clear expression of private
property rights. Waqf properties, however, enjoyed a certain status which
mulk properties did not. For example, waqfs were protected from impe-
rial confiscation, but mulk property was not. Thus, it could be argued that
the legal and broader socio-political system privileged those lands and
properties intended for the public good rather than those solely support-
ive of private interests. This certainly accounts for the criticism leveled
against the waqf ahlī during the Ottoman period. According to Singer,
family endowments were criticized on several grounds including: they
did not benefit the poor or the public and they facilitated the appropria-
tion of state property. She goes on to argue that the division between
‘family’ and ‘charitable’ waqfs has allowed for a “condemnation of the so-
called family endowment as a self-interested undertaking, as compared
to charitable endeavors, despite the fact that the ‘charitable’ endowment
of a wealthy person might establish the management of it as a well-paid
position to be filled by family members.”71
Johansen puts forth an alternative interpretation by arguing that waqf
properties, along with state owned lands, were privileged by Ḥanafī jurists
of the Ottoman period (vis-à-vis other properties such as small scale
mulk properties) because they were considered rent-yielding properties

70 Ibid., 1:199.
71 Singer, Constructing Ottoman Beneficence, 31.
 land tenure system in ottoman syria 49

which benefitted the state.72 This argument, however, assumes that jurists
defended the interests of the state at the expense of the broader public
good or even the rights of small peasant proprietors. This was not, how-
ever, the general rule—both al-Ramlī and Ibn ʿĀbidīn, for example, sup-
ported the rights of the kharāj payer as a mulk holder (here the kharāj
being interpreted as a tax validating ownership rather than a rent paid
by the cultivator indicating his possession of usufruct rights only).73 Fur-
thermore, as chapter four will highlight, jurists upheld the jurisdiction of
sharīʿa law (as opposed to qanūn) over matters pertaining to the admin-
istration of waqf properties in general. Ultimately, jurists took their role
as protectors of the public good seriously—waqf interests (particularly as
related to the collection and disbursement of revenues) were certainly
protected, but not at the expense of the rights of tenant cultivators work-
ing these lands.
In defining the role of the waqf founder, the law upheld the rights of
this individual as long as he or she ensured that the beneficiaries of the
waqf received their adequate share of the revenue. Ibn ʿĀbidīn articulates
this clearly:
. . . If a [waqf beneficiary] brings a claim against a mutawallī that..his rightful
share [of the crop] is more than what he receives [from the mutawallī.] . . . the
claim should be heard without hesitation . . . if the waqf designator prevents
the people of the waqf from collecting what he designates for their benefit
and they demanded it from him, the judge should make him pay what is in
his hands from the crop . . .74
Both the mutawallī and the waqf founder were held accountable when
the stated beneficiaries of a particular waqf did not receive their entitled
shares of the revenue/crop. In such cases of corruption, the judge had to
intervene and redistribute the revenues accordingly. Generally speaking,
as explained by the seventeenth-century Damascene jurist Muḥammad
ʿAlāʾ al-dīn al-Ḥaṣkafī, when the founder of a particular waqf engaged in
“untrustworthy” acts or “if he is unable (to discharge his duties) or has
committed any sin, e.g. drinks wine and so on . . . or spends his money in
the pursuit of alchemy,”75 he had to be removed. It was not uncommon

72 Johansen, Land Tax and Rent, 107–108.

73 Cuno, “Miri or Milk?,” 148–49.
74 Muḥammad Amīn ibn ʿUmar Ibn ʿĀbidīn, Radd al-muhtar ʿala al-durr al-mukhtar
sharh tanwir al-absar (Beirut: Dar al-Kutub al-ʿIlmiya, 1994), 6:612.
75 Ḥaṣkafī, The Durr ul-Mukhtar, 351.
50 chapter one

for corrupt administrators to abuse the income of a waqf.76 The legal lit-
erature also highlights other individuals involved in the wrongful appro-
priation of waqf revenues. These included random individuals or distant
family members who wrongfully claimed to be beneficiaries,77 and public
officials who at times appropriated waqf land and the revenues generated
from it.78 Chapter four examines in greater detail the limitations placed
on waqf administrators by jurists.

Supervision and Oversight of Waqf Properties

The daily management and supervision of waqf property involved vari-
ous individuals who played distinct but often complementary roles. Such
administrators included the mutawallī or overseer (the most common
official referred to in the legal sources), qayyim (custodian), wakīl (guard-
ian), nāẓir (manager or supervisor), and amīn (trustee).79 Generally speak-
ing, all of these posts were usually under the authority of the mutawallī.
The legal operations of waqf properties were shaped by realities on the
ground as well as by the state itself, which had a vested interest in collect-
ing (through taxation) its share of waqf revenues.
Usually named by the founder, the waqf administrator played a cen-
tral role in managing and overseeing the waqf. Furthermore, research has
shown that it was not unusual for women, usually from privileged back-
grounds, to assume the position of waqf administrator.80 According to the

76 Dallal, “Islamic Institution of Waqf,” 31.

77 Fatawa bani al-ʿImadi, Zahiriya 5864, fols. 123, 157. The fatāwā are attributed respec-
tively to Muḥibb al-dīn al-Ḥanafī and ʿAbd al-Raḥmān al-ʿImādī. Interestingly, in the lat-
ter fatwā relating to distant family members who claimed to be beneficiaries, it was the
supervisor of the waqf who tried to support their claims. However, the muftī rules that
the supervisor’s admission is not sufficient legal proof of the lineage of these individuals,
thereby making their claims invalid.
78 Dallal, “Islamic Institution of Waqf,” 31.
79 George Makdisi, Rise of Colleges: Institutions of Learning in Islam and the West (Edin-
burgh: Edinburgh University Press, 1981), 44–47; Dallal, “The Islamic Institution of Waqf,” 24.
80 Beshara Doumani, “Endowing Family: Waqf, Property Devolution, and Gender in
Greater Syria, 1800–1860,” Comparative Studies in Society and History 40, no. 1 (Jan. 1998):
3–41; Randi Deguilhem, “Consciousness of Self: The Muslim Woman as Creator and Man-
ager of Waqf Foundations in Late Ottoman Damascus,” in Beyond the Exotic, 102–115; Mary
Ann Fay, “Women and Waqf: Toward a Reconsideration of Women’s Place in the Mamluk
Household,” IJMES 29, no. 1 (1997): 38–39, 42; Haim Gerber, “Social and Economic Posi-
tion of Women in an Ottoman City, Bursa, 1600–1700,” IJMES 12 (1980): 238, and idem,
“The Waqf Institution in Early Ottoman Edirne,” Asian and African Studies 17 (1983): 37;
Ronald C. Jennings, “Women in Early 17th Century Ottoman Judicial Records—The Sharia
Court of Anatolian Kayseri,” JESHO 18 (1975): 105–107; Margaret L. Meriwether, “Woman
and Waqf Revisited: The Case of Aleppo, 1770–1840,” in Women in the Ottoman Empire:
 land tenure system in ottoman syria 51

law, the mutawallī was entitled to a salary equal to that of his/her equals
in other endowments or those supervisors who preceded him/her.81 In
the fatāwā, the waqf officials with whom tenants and sharecroppers on
waqf lands interacted most frequently were the mutawallī or nāẓir. For the
most part, the legal literature on land tenure does not differentiate greatly
between the roles of these two officials. Fatāwā usually make mention of
one or the other as the official in charge. The various duties under the
administrator’s responsibility included: renting out the property or culti-
vation rights to the land; collecting the waqf ’s share of the cultivation or
crop yields and handling lease and/or sharecropping contracts; ensuring
and overseeing the repair and upkeep of the endowment (this was funded
by waqf yields); managing the waqf ’s finances according to the deed; deal-
ing with the beneficiaries; and handling disputes related to the waqf.82
Tenants on waqf lands needed the permission of the mutawallī or
nāẓir before planting, constructing, or demolishing plants or structures.
This was largely because, once planted, trees and vines might become the
property of the lessee under what was referred to as kirdār. If such per-
mission was not sought before planting, the overseer had the right to take
possession away from the usufruct holder and uproot the plants/vines.83
Similarly, in cases in which a lessee or outside individual builds a struc-
ture on a waqf property without the permission of the mutawallī, the lat-
ter has the right to order that the construction be torn down.84 When a
lessee demolishes a structure, cuts down trees on a waqf property without
the mutawallī ’s permission, fails to maintain proper cultivation, or in any

Middle Eastern Women in the Early Modern Era, ed. Madeline C. Zilfi (Leiden; New York;
Koln: Brill, 1997), 131–50.
81 Fatawa al-Nabulusi, Zahiriya 2684, fols. 98b, 100b. In the case of an overseer who
requested a higher salary than that stipulated by the waqf founder (for no legitimate
reason other than to accommodate his cost of living), al-Nābulusī rules against the
mutawallī’s demand (Ibid., fol. 109b). ʿAlī al-Murādī maintains that a mutawallī, qayyim
or nāẓir deserves a fair salary (ujr al-mithl) for his/her work as this is the established cus-
tom, regardless of whether the judge or local people stipulated a certain salary for the
administrator. Beneficiaries, moreover, have no right to object to this (Al-Murādī, ʿAlī ibn
Muḥammad et al., Majmuʾ fatawi al-Muradiya, Zahiriya 2640, fol. 33).
82 Ramlī, Al-Fatawa al-khayriya, 1:110, 162, 190, 192; The mutawallī or nāẓir’s responsibil-
ity to collect a portion of crop yields is attested to in fatāwā issued by the muftī of Damas-
cus Ḥussām al-dīn al-Rumī (d. 1028 H./1619 A.D.), Fatawa bani al-ʿImadi, Zahiriya 5864, fol.
136a. The latter fatwā illustrates how it was not uncommon for a waqf overseer to collect
both the rent and a share of the crop yield; See also Dallal, “Islamic Institution of Waqf,”
24; Makdisi, Rise of Colleges, 48–49.
83 Ibn ʿĀbidīn, Al-ʿUqud, 1:182; Fatawa bani al-ʿImadi, Zahiriya 5864, fol. 136b.
84 Fatawa bani al-ʿImadi, Zahiriya 5864, fol. 82b.
52 chapter one

way jeopardizes the interests of the waqf, the mutawallī had the right to
remove him/her and terminate the lease.85 Referring to a case in which
the trees on a particular waqf land came under the control of villagers
after the usufruct holder (from the same village) died, al-Ramlī maintains
that the waqf overseer has the right to contest this action and take control
over the land and its trees in order to ensure that the profits of the land
go to the waqf. He argues that the overseer should enforce the payment
of fair rent for the remainder of the period during which the deceased
usufruct holder should have had possession of the land.86 While the law
certainly held the mutawallī responsible for the financial well-being of the
waqf, an administrator was not legally liable for revenues not collected
from tenants who were insolvent or who fled the land through no fault
of the overseer.87
An important component of a mutawallī ’s responsibility involved han-
dling and approving the transfer of usufruct rights on waqf lands, be it in
situations involving the transfer of possession (not ownership) rights from
one cultivator to another or the transfer of use rights once a cultivator
died. In both cases, the supervisor often had considerable flexibility in
deciding who assumed cultivation rights.88 If a cultivator with usufruct
rights wanted to assign cultivation of the land to another peasant, he/she
could do so only with the permission of the mutawallī.89 In cases involv-
ing the death of a usufruct holder, possession rights normally passed to
the surviving son(s), but it was not unusual (particularly when there were
no sons) for such rights to be transferred to a surviving daughter, as will
be discussed further in chapter four.
The law also accorded the overseer the right to share his/her duties
with another individual(s). Ibn ʿĀbidīn elaborates on the limitations
which governed such arrangements however:
. . . a person supervising a waqf can reach an agreement to allow another
person to take over half of the job of supervising the waqf . . . and this

85 Ramlī, Al-Fatawa al-khayriya, 1:190. Here al-Ramlī condemns cultivators who attempt
to assert possession rights over the land without paying the appropriate dues to the waqf.
He maintains that this is strictly forbidden because it jeopardizes the profit of the waqf.
ʿAlī al-Murādī rules that a mutawallī can revoke the lease of a tenant who cuts some of the
trees of a waqf plantation for no legitimate reason (Majmuʾ fatawi al-Muradiya, Zahiriya
2642, fols. 158–59).
86 Ramlī, Al-Fatawa al-khayriya, 1:160.
87 Majmuʾ fatawi al-Muradiya, Zahiriya 2640, fol. 21. ʿAlī al-Murādī bases his fatwā on
an earlier ruling by al-Ramlī.
88 Ibn ʿĀbidīn, Al-ʿUqud, 2:202, 203, 206, 208.
89 Bab mashadd al-maska, Zahiriya 5677, fol. 10a.
 land tenure system in ottoman syria 53

a­ cknowledgment remains in effect as long as the two are alive. If the

[supervisor] giving the approval (muṣādaq) passes away, . . . the agreement
becomes null and void and the entire supervisory job goes to whomever is
next in line as stipulated by the waqf founder [in the deed]. If the person to
whom one-half of the job was given (muṣādaq lahu) passes away, a matter
which occurs frequently in our present time . . . it appears that the agreement
should also become null and void . . . The share, however, does not revert back
to the [supervisor] who agreed to split his job. Rather, the judge can give it to
whomever he believes capable from among the beneficiaries . . .90
Essentially, any arrangement made between the waqf administrator and
another individual regarding the sharing of the supervisory role was only
valid during the lifetime of both parties. When the individual sharing the
position passed away during the course of his/her duties, the assigned
share, according to Ibn ʿĀbidīn, should not go back to the administra-
tor, but should be assigned by the judge to one of the beneficiaries. In
fact, managerial decisions pertaining to the waqf (such as leasing) could
not be made in such cases until the deceased overseer’s replacement is
appointed by a judge.91 According to the law, furthermore, when a waqf
had multiple mutawallīs, all matters pertaining to the administration of
the waqf needed their unanimous approval.92 The same held true if a waqf
had a mutawallī and a nāẓir—the former, for example, could not lease a
waqf without the knowledge and permission of the latter.93
There were also cases in which particular villages were divided up into
more than one waqf; in such situations, each waqf had its own supervisor/
overseer who acted independently of the others. Similarly, if a village was
designated as a waqf for two different charity groups, each charity group
had its own supervisor.94
While the founder had the legal right to appoint the mutawallī of his/
her endowment, the judge held the right to change the overseer/supervi-
sor if he/she was corrupt or dishonest. The law did not support a change in
waqf administration by a judge that was unsubstantiated, however. When
a judge replaced a good, law-abiding mutawallī with another, the seven-
teenth-century muftī of Damascus Muḥibb al-dīn al-Ḥanafī (d.1030/1621)
rejects the judge’s decision, arguing that the first supervisor showed no

90 Ibn ʿĀbidīn, Al-ʿUqud, 1:185.

91 Majmuʾ fatawi al-Muradiya, Zahiriya 2640, fol. 54.
92 Fatawa al-Nabulusi, Zahiriya 2684, fol. 110a.
93 Majmuʾ fatawi al-Muradiya, Zahiriya 2640, fol. 12. ʿAlī al-Murādī bases his ruling on
an earlier fatwā issued by al-Nābulusī.
94 Ibn ʿĀbidīn, Al-ʿUqud, 1:196–97.
54 chapter one

signs of “betrayal or shortcoming.”95 Al-Nābulusī also rules against a judge

who appointed a waqf overseer without legally terminating the first due
to any wrongdoing or corruption. In this case, the second mutawallī had
leased the waqf and the lessee had built on and renovated the property
without the permission of the first overseer. According to al-Nābulusī,
because the first administrator was not dismissed due to any wrongdoing,
it is not admissible to hire another mutawallī in his place. Therefore, the
appointment of the second overseer and the decisions taken by him on
behalf of the endowment (including the lease arrangement) are deemed
illegitimate.96 Ultimately, an upright mutawallī had certain legal rights.
For example, the law accepted the sworn word of an overseer accused of
wrongdoing or financial mismanagement if he/she was generally known
for being honest.97 Furthermore, if a mutawallī documented the income
and expenditures of a waqf with a judge’s oversight and supervision,
then there was no legal grounding for accusing the overseer of wrongdo-
ing or demanding that his/her accounting books be audited.98 Generally
speaking, muftīs emphasized that legitimate proof had to be presented in
court before an accused mutawallī could be convicted of wrongdoing and
­dismissed.99
When a waqf administrator disappeared from his/her post, however, the
judge had every right to immediately replace that individual with another
administrator.100 In situations in which there was a dispute between two
individuals over who was legally entitled to act as administrator of a waqf
property, the law stipulated that it depended upon written evidence and
who could support his claim with legal documentation.101 Finally, when
the founder did not designate an administrator, it was the duty of the
judge to appoint one. If there was no judge, then the responsibility fell
to the notables or religious scholars from the community where the waqf
was established.102 Legal thinkers, as will be illustrated in chapter four,
were generally wary of state control over waqfs and thus were careful to

95 Fatawa bani al-ʿImadi, Zahiriya 5864, fol. 2a.

96 Fatawa al-Nabulusi, Zahiriya 2684, fol. 106b.
97 Ibid., fol. 99b, 101a. Along the same lines, ʿAlī al-Murādī rules that the administra-
tive duties of an upright, honest mutawallī should not be subject to oversight by any other
authority, even if the latter is legally appointed at the request of a beneficiary (Majmuʾ
fatawi al-Muradiya, Zahiriya 2640, fol. 20).
98 Fatawa al-Nabulusi, Zahiriya 2684, fol. 101b.
99 Majmuʾ fatawi al-Muradiya, Zahiriya 2640, fol. 63.
100 Fatawa bani al-ʿImadi, Zahiriya 5864, fol. 199.
101 Ibid., fol. 170b.
102 Dallal, “Islamic Institution of Waqf,” 24.
 land tenure system in ottoman syria 55

point out that judges and the state in general should not bypass the waqf
founder’s inherent right to appoint the mutawallī.
Perhaps the most important role of the legal establishment lay in over-
seeing the performance of the waqf administrator. As representatives of
the Muslim community, the judge and muftī were responsible for ensuring
that administrators properly managed the waqfs under their supervision.
For example, when a waqf was in financial distress, the property, at the
order of the judge, could be leased out in order to gain the income neces-
sary to repair it. In more drastic situations, where the revenues were not
sufficient to cover the upkeep of the waqf, the judge could rule for the waqf
land or property to be sold.103 The mutawallī also needed legal authoriza-
tion from a judge before borrowing money for purposes of reconstruc-
tion or maintenance of a waqf.104 If a mutawallī, with the permission of a
judge, invested his/her own funds to rebuild or renovate waqf property,
he/she had the right to recover such funds from the waqf.105
While judges ensured that the law was properly executed in regard to
waqf properties, muftīs and other legal scholars articulated the legal rea-
soning behind such exactions. This did not necessarily mean that every
decision made by a Ḥanafī judge was in line with Ḥanafī doctrine on a
particular issue; the discrepancies between judges’ decisions and muftīs’
opinions is apparent in the sources themselves.106 Nevertheless, the muftī
played an important role in ensuring that the law remained responsive to
changing social and economic realities while adhering to the basic tenets
of legal custom.

Exchange/Sale of Waqf Property

Scholars of Ottoman history have done a great deal to challenge the
notion that waqfs (which literally means ‘stopping’) were permanent
structures that somehow had a negative impact on property development
and agrarian practices in the region.107 In reality, waqf properties were not

103 Ibid., 25.

104 Ramlī, Al-Fatawa al-khayriya, 1:192.
105 Majmuʾ fatawi al-Muradiya, Zahiriya 2640, fols. 27–28.
106 Ibn ʿĀbidīn, Al-ʿUqud, 2:203.
107 Singer, Constructing Ottoman Beneficence and Doumani, “Endowing Family.” For
a portrayal of waqf as an un-changing or static institution, see H.A.R. Gibb and Harold
Bowen, Islamic Society and the West: A Study of the Impact of Western Civilization on Mos-
lem Culture in the Near East, vol. 1, Islamic Society in the Eighteenth Century (London; New
York: Oxford University Press, 1950), pt. 2, 177–78.
56 chapter one

­ ermanently excluded from transactions and waqf founders used various

p
legal mechanisms to bypass the law.108
From a legal standpoint, the manager and/or founder had first to obtain
the consent of a judge before engaging in any transaction that involved
the alienation of a particular waqf property. Generally, the judge would
only approve such a transaction if it was proven that the property at hand
was “harmful to the public or a loss to the waqf.”109 When the judge’s
approval was obtained, the property could be exchanged (istibdāl) and
purchased by another endowment or individual.110
The following fatwā illustrates the sort of protocol followed in cases
involving the exchange of a deteriorated waqf property:
Question: There is a waqf which is designated to a [particular] charity which
has deteriorated and which has not been efficiently used for a period of
over thirty years—the damage has affected the neighbors and also those
passing by the place. So the mutawallī referred the issue to the judge who
sent some trusted people to inspect the place in question and found it to
be in a condition fit for exchange. They told the judge about that and he
allowed the mutawallī to exchange the property after everything had been
documented . . . One person eventually took the property for a given amount
of money after a group of Muslims stood as witnesses to the fact that its
value at the time was equal to the amount for which it was exchanged. The
judge ruled that the exchange was valid since previous imāms have allowed
this . . . and stated that the property becomes that of the person to whom it
was exchanged and he is allowed to act with it as he wishes. After a long
period passed, someone else bought the property and acted with it as he
pleased and another mutawallī came and alleged that the exchange is not
valid because it was less than the value of the property and he brought a
group of people as witnesses and they stated that its value was more than
the exchange amount . . . The legal evidence states that the exchange was
profitable and useful and a judge ruled that this is correct. Is it not permis-
sible for anyone to nullify the exchange and can the purchaser do what he
likes with the property or not?
Response: If the witnesses to the exchange are known to be just, then the set
exchange cannot be nullified. . . . the testimony of the first set of witnesses
gets priority because it was recorded before a court of law.111

108 This is also attested to by R.D. McChesney in his book Waqf in Central Asia: Four
Hundred Years in the History of a Muslim Shrine, 1480–1889 (Princeton: Princeton University
Press, 1991), 13.
109 Dallal, “Islamic Institution of Waqf,” 26.
110 Ḥaṣkafī, The Durr ul-Mukhtar, 352–53; Fatawa al-Nabulusi, Zahiriya 2684, fol. 111b. See
also Dallal, “Islamic Institution of Waqf,” 26 and Singer, Constructing Ottoman Beneficence, 22.
111 Ramlī, Al-Fatawa al-khayriya, 1:198.
 land tenure system in ottoman syria 57

As documented here, it was not unusual for a particular waqf to be subject

to several transactions of exchange over a period of many years, illustrating
that waqf properties were anything but stagnant or ‘stopped.’ However,
the process of exchanging a particular waqf property necessitated legal
approval from the court, which, through inspection, verified whether or
not istibdāl was in the best interest of the waqf. As al-Ramlī’s ruling illus-
trates, it was difficult to overturn a particular exchange once it obtained
court approval, even if the beneficiaries or the overseer later opposed the
exchange.112 As will be discussed in subsequent chapters, this was in line
with the muftīs’ general hesitancy to overturn binding decisions and/ or
contracts unless absolutely necessary.
From a legal standpoint, this fatwā outlines the foundations of the
court process, illustrating the systematic nature of the law and the dili-
gence used in reaching decisions. The muftī is careful to point out that
the judge, in reaching his decision, relied on experts (the “trusted people”
who inspected the land), proper documentation, precedence (the judge
ruled that the exchange was valid since “previous imams have allowed
this”), and just witnesses. Given the rigorous methodology employed by
the court in reaching its decision, it is no surprise that muftīs were hesi-
tant in overturning the court’s rulings. The business of formulating and
implementing land laws was anything but haphazard in nature. This is
not to say that corruption did not take place in the courts. However, by
and large, judges and muftīs alike worked within a legal framework that
comprised rigorous standards and procedures.
In the case referred to in the above fatwā, the waqf at hand was
exchanged in both instances for money, not an alternate property. The
law made it clear that it was legally valid to exchange a waqf for either.
Referring to exchanges of waqf property for money, al-Ramlī maintains:
Qaḍīkhān and many other scholars explicitly state that an exchange for dir-
hams and dinārs is permissible. . . . if the exchange is done through a judge,
then it is guaranteed and there is no fear of loss, even if it were done for
money . . . we say that [money] is the most useful means, and if a judge rules
that it is valid, then there is no question that it cannot be nullified when all
other conditions related to its permissibility are fulfilled. . . .113
Al-Ramlī refers to legal precedence (Fakhr al-dīn Qāḍīkhān, d. AH 592/AD
1196, was a jurist of Central Asia) to justify his ruling that the exchange of

112 Ibid., 1:201; Fatawa al-Nabulusi, Zahiriya 2684, fol. 111b.

113 Ramlī, Al-Fatawa al-khayriya, 1:200.
58 chapter one

waqf property for money is permissible, indicating that the commodifica-

tion of religious endowments had begun even prior to the seventeenth
century. In fact, he stipulates in several fatāwā that if the best interest of
the waqf dictates that it be exchanged for money, then this is exactly what
should be done.114 Furthermore, when the financial well-being of a waqf
is jeopardized, the interests of the waqf (protected by the legal establish-
ment, represented by both judges and muftīs) supersede the will of the
founder. Thus, when asked about the legality of exchanging a waqf prop-
erty in near collapse whose founder placed a condition that the property
not be exchanged, al-Ramlī states in accordance with legal precedence,
. . . the scholars have said that if it is in the best interest [of the waqf ] to do
so, then it is allowed, even if that means violating the conditions established
by the waqf designator, for the need of the property dictates this . . .115

Reasons for Establishing a Waqf

There are religious, social, political, and economic reasons why individu-
als established waqf properties. Aside from being motivated by religious
belief and the duty of giving to charity, waqfs throughout the Muslim
world played an important role in supporting the public sector.116 How-
ever, while the establishing of endowments was certainly informed by
spiritual, humanistic, and charitable motivations, there were also impor-
tant political and economic reasons for waqf making. As Singer points
out, “[e]ndowments served as vehicles for political legitimation, social
status, and patronage of all types, from the level of the personal to the
imperial.”117 For example, waqf making played an important role in allow-
ing religious notables, the ʿulamāʾ, to maintain financial freedom from
the state. Through the various religious institutions sponsored by waqfs
(including colleges, mosques, and Sufī lodges), religious scholars as a class
were able to maintain a large measure of economic independence up until
nineteenth-century reforms.118
For its part, the Ottoman state used waqf making for both economic and
political reasons. The establishment of waqfs by the Ottoman elite contrib-
uted to both urban and rural development by building the ­infrastructure
(such as market space, public baths, mosques, and schools) necessary for

114 Ibid., 1:200–201; For a similar ruling, see Fatawa al-Nabulusi, Zahiriya 2684, fol. 111b.
115 Ramlī, Al-Fatawa al-khayriya, 1:200.
116 McChesney, Waqf in Central Asia, and Singer, Constructing Ottoman Beneficence.
117 Singer, Constructing Ottoman Beneficence, 26–27.
118 Ibid., and Dallal, “Islamic Institution of Waqf,” 30.
 land tenure system in ottoman syria 59

social and economic progress.119 The Ottoman state used waqf making to
encourage settlement, promote development, and highlight its role as the
protector of Islamic principles. Thus, in the regions they conquered, the
Ottomans, in addition to ensuring the integrity of existing endowments,
also created several new waqfs to support charitable institutions and pub-
lic works. They also spearheaded the establishment of Sufī residences—
a common method of colonization and Islamization employed by the
Ottomans. By bringing lands under cultivation, these residences became
increasingly populated and assumed over time various functions, includ-
ing guest houses and public kitchens.120
Sultans themselves appropriated many rural lands (several of which
belonged to the public treasury or bayt al-māl) into their imperial endow-
ments. Many properties established as family waqfs were made on lands
that had either been given as imperial grants (temlīk) or taken from state
properties designated as tīmārs or established as tax farms (iltizāms). Over
time, such practices had two results—a loss of revenues to the public trea-
sury and an increase in cultivable lands endowed as waqfs.121
This loss of lands from the holdings of the state during the middle
of the sixteenth century urged the Ottomans to reformulate their land-
holding and taxation policies. Defining Ottoman policy gained increas-
ing urgency in light of the conquests of the Fertile Crescent and Egypt.
From the state’s perspective, the situation was particularly troublesome in
Egypt and southern Syria where large tracts of land were exempt from full
taxation because of their waqf status. According to Singer, two processes
were initiated by Abū al-Suʿūd and Sultan Sulaymān in an effort to protect
state interests:
(1) an attempt to ensure the status of mīrī land, perhaps even reclaiming mīrī
land improperly assimilated to private holdings; and (2) the imposition of
taxes as tithes on existing vakifs, in an attempt to regain some revenues lost
to the treasury from these lands whose principal fruits supported private
endowments.122
Ultimately, such efforts on the part of the state indicated not only the
increasing prevalence of waqf properties and their importance to the
­public treasury as sources of revenue, but also more concerted attempts
by the state to bring such properties under public control.

119 Dallal, “Islamic Institution of Waqf,” 30–31.

120 Singer, Constructing Ottoman Beneficence, 28–29.
121 Ibid., 29–30.
122 Singer, Palestinian Peasants, 48.
60 chapter one

At the private level, there were important economic reasons why indi-
viduals established waqfs. To begin with, the creation of a waqf ahlī pro-
tected a particular founder and his family from confiscation of property
by state authorities. Many officials and bureaucrats established waqfs to
protect the wealth they gained during their years of service to the state.
They realized that imperial confiscation of property could occur in cases
of death or simply loss of state support. By establishing a waqf, however,
they could name their own family members as beneficiaries and/or estab-
lish family members as employees of the waqf.123
Another common motivation behind waqf making was to evade the law,
either by escaping taxation or bypassing the Islamic law of inheritance.124
The Islamic law of inheritance is quite specific in laying out the heirs and
the shares entitled to them. As Dallal points out, religious endowments
provided a mechanism for:
favoring one heir over another, establishing equal division of shares between
sons and daughters, or favoring the son at the expense of the daughter. In all
of these cases, Qurʾānic heirs are excluded from getting their legal shares.125
While research has not conclusively shown whether waqfs benefitted male
or female heirs more, the scholarship on women and waqf has found that
many women used waqf making to protect their property from the control
of their husbands or other male family members.126
Muftīs devoted a great deal of attention to discussing family waqfs and
the conditions governing the line of descent for such properties. Waqf
founders were often quite meticulous in specifying the beneficiaries of a
particular waqf. Such a case is detailed, for example, in al-Ramlī’s fatāwā.
The case tells of a waqf founder from Damascus who assigned himself as
beneficiary of his own waqf as long as he lived, and stipulated that, after
his death, the waqf should pass to his own blood children (Muḥammad
Zayn al-ʿĀbidīn and Salāḥ al-dīn Yousif and Um Hānī). The waqf was to
be split among them in line with sharīʿa law, with the males getting twice
the share of females. Next in line as beneficiaries were the children of the
male children (rather than the females) and then their sons and the sons

123 Singer, Constructing Ottoman Beneficence, 30–31.

124 Taisir Khalil Muhammad El-Zawahreh, Religious Endowments and Social Life in the
Ottoman Province of Damascus in the Sixteenth and Seventeenth Centuries (Karak, Jordan:
Mu’tah University, 1995), 82–83.
125 Dallal, “Islamic Institution of Waqf,” 29.
126 Ibid.; Gabriel Baer, “Women and Waqf: An Analysis of the Istanbul Tahrir of 1546,”
Asian and African Studies 17, no. 1 (1983): 9–27; and Doumani, “Endowing Family.”
 land tenure system in ottoman syria 61

of their sons after them, and so on, and then to their descendants. Who-
ever among them died without a son or grandson or descendant, then his
share of the waqf would revert to someone who had the same degree of
entitlement to the waqf from among the beneficiaries. If someone died
before receiving any of his entitlement from the waqf in question and
left behind a son or grandson or descendant, then the surviving person
became entitled to what the deceased would have been entitled to if he
were alive. If and when the sons, grandsons and descendants of the waqf
founder’s male children passed away, then the waqf would revert to the
surviving sons of the females from among the waqf founder’s descendants.
After the sons of the females and their grandsons and descendants, the
waqf should return to whomever is alive from among the sons of the late
Judge Wālī al-dīn Muḥammad, father of the waqf founder, and his sons
and grandsons and descendants, to be divided among them in line with
sharīʿa law. Once they are extinct, then the waqf would revert to a char-
ity. In this particular case, when the male children of the waqf founder
and their line of descendants died out, the waqf reverted to the daughter
with no sons. When the daughter passed away, the waqf reverted to the
descendants of Wālī al-dīn, the father of the waqf founder, with the surviv-
ing descendants of Wālī al-dīn holding various degrees of entitlement to
the waqf—some with more senior entitlement than others. The question
posed to al-Ramlī is: would the members of the senior level of entitlement
(al-tabaqa al-ʿālīyā) to the waqf, rather than the members of the junior
level of entitlement (al-tabaqa al-suflī), deserve the crop of the waqf and
should the members of the junior level of entitlement not get anything, in
light of the fact that the senior members are alive? His response is:
All that is pertinent to the sons of the waqf founder in terms of the ori-
gin [son] taking precedence over his own branch [grandson] . . . should be
taken into consideration with regards to the sons of the deceased, the late
judge Wālī al-dīn, because that is included in the concept of definite succes-
sion . . . and that is a common sense issue . . . Because the waqf founder made
succession a condition, . . . no one from among those with entitlement to the
waqf deserve anything while their origins are alive, because their entitle-
ment is conditional upon the death of the origins, and whoever among them
passed away, then his share reverts to his son and grandson and descen-
dants . . . Whoever dies without leaving behind a son, then his share reverts
to whoever is in his same degree of entitlement . . . and once the higher level
of entitlement becomes extinct, then the shares would go to the lower level
of entitlement . . . and God knows best.127

127 Ramlī, Al-Fatawa al-khayriya, 1:187–88.

62 chapter one

The role of the muftī here was not in any way to dispute the wishes of the
waqf founder, but rather to ensure that the waqf founder’s desires (as artic-
ulated in the waqf deed) were implemented. The waqf property referred to
in this fatwā provides an example of how the establishment of a religious
endowment could be used to favor the male heirs rather than female heirs.
The founder, who had two sons and a daughter, stipulated that the waqf
should be passed down first to his male children and their sons and (male)
descendants, and only secondly to his daughter and her male children and
their line of (male) descendants—there is no mention of the daughters of
his children. In most of the fatāwā issued by al-Ramlī (and the same is doc-
umented in other fatāwā as well) pertaining to the succession rights of waqf
beneficiaries, female heirs either tended to be underprivileged compared
to male heirs128 or hold equal rights to succession129—there are no cases
that I came across where a female heir was privileged vis-à-vis a male heir.
Although not common, a waqf founder could include a provision that only
male relatives and not females should benefit from the endowment. Such
a scenario is documented by al-Nābulusī. In this particular case, a group of
women, who are among the descendents of the founder, try to challenge
such a practice (in place for more than a one hundred years). Al-Nābulusī
rules against them given that this provision was included in the endow-
ment deed (and likely also because he did not want to disrupt existing
practice).130 Nevertheless, as al-Ramlī asserts, should a waqf founder desire
that a particular female heir(s) be privileged, then this should be upheld as
well.131 If the waqf founder named both of his/her male and female children
beneficiaries, then the descendants of both the male and female children
were entitled to benefit from the waqf equally. The legal literature demon-
strates, in fact, that women were actively involved in endowing waqfs, and
including provisions in the deed that ensured that the waqf worked to their
benefit. Provisions which a woman might include in a waqf deed were:
keeping waqf income under her control and/or ensuring that the endow-
ment benefitted her and, only after her death, her family and relatives.132
This was done, furthermore, with the full support of the law.

128 Ibid., 1:190–91, 195, 197. See also Fatawa al-Nabulusi, Zahiriya 2684, fols. 99b, 101a,
101b, 102b, 103a; and Fatawa bani al-ʿImadi, Zahiriya 5864, fol. 232.
129 Ramlī, Al-Fatawa al-khayriya, 1:192–93, 196. See also Fatawa al-Nabulusi, Zahiriya
2684, fol. 106a.
130 Fatawa al-Nabulusi, Zahiriya 2684, fol. 104a.
131 Ramlī, Al-Fatawa al-khayriya, 1:189.
132 Fatawa al-Nabulusi, Zahiriya 2684, fols. 97b, 107a, 111a. For an example of a woman
endowing property for the benefit of her children, see fol. 98a.
 land tenure system in ottoman syria 63

As al-Ramlī’s fatwā illustrates, waqfs were often founded with the

purpose of avoiding the division of property that resulted from apply-
ing Islamic laws of inheritance. Thus, through the establishment of waqf,
individuals could ensure that property passed to their direct descendants
and not distant relatives.133
Waqf beneficiaries, however, did have the right during their lifetime to
forfeit and/or share their portion of the revenues and/or crop from a par-
ticular endowment with whomever they chose. Consider this fatwā issued
by Ḥāmid al-ʿImādī:
Question: If a waqf beneficiary acknowledged that Zayd or ʿAmr is more
entitled to the return of the waqf and they agreed with him on that and a
deed was drawn up to that effect, would the agreement in question be valid
and just to the waqf beneficiary?
Response: Yes.134
When the waqf beneficiary agreed to such changes, his/ her interests were
not jeopardized according to the law. The arrangement reached here
between the parties at hand is consecrated in a written contract, although
it is not clear why the beneficiary chose to redistribute his share of the
waqf revenues. The fatwā challenges the assumption that waqf deeds were
immutable and static. More often than not, the validity of such transac-
tions was strengthened when written agreements were drawn up. In such
cases, the heirs of the deceased individual(s) who were initially granted
the approval to share in the waqf were entitled to claim their right to that
share.135 Although verbal agreements between beneficiaries and other par-
ties were reached regarding the distribution of waqf revenues, they were
generally governed by stricter limitations. To begin with, such arrange-
ments hinged on both the person granting the approval (usually the waqf
beneficiary or the supervisor in agreement with the waqf beneficiary)
and the person receiving the approval being alive. Should the individual
granting the approval die, then the agreement is null and void and the
approved share is transferred to whomever is legally entitled to it accord-
ing to the waqf deed. If the person receiving the approval dies, then his/
her heirs are not entitled to the specified share of the waqf.136 Thus, oral
agreements did not supersede the conditions laid out in the original waqf

133 El-Zawahreh, Religious Endowments, 83.

134 Ibn ʿĀbidīn, Al-ʿUqud, 1:184.
135 Ibid.
136 Ibid., 1:184–85.
64 chapter one

deed by the founder. Nevertheless, it is interesting to note the room for

maneuver allowed by the law. Given certain conditions, beneficiaries did
have important discretionary powers in determining how income from a
waqf could and should be distributed. This is a good example of how the
law sought to ensure the adaptability of the waqf administrative structure
in light of changing conditions on the ground.

Conclusion

The period from the sixteenth century onwards witnessed an increasing

proliferation and institutionalization of state and waqf properties. As this
happened, Ḥanafī legal thought, in conjunction with Ottoman state law,
standardized the regulations governing the administration of both types
of properties. From the state’s perspective (and, to a certain extent, the
perspective of local muftīs), this was done largely to ensure the stable and
consistent collection of revenue, particularly from waqfs which tended to
enjoy certain tax exemptions. Although qanūn and sharīʿa law certainly
shaped one another, they also assumed distinct and complementary roles
in regulating the administration of both state and waqf properties. Thus,
while qanūn defined the proper role of state officials on mīrī lands and
sought to regulate the revenues accruing from both state and waqf prop-
erties, local religious scholars, in their application of sharīʿa law, were
responsible for delineating the laws governing the administration, func-
tion, and transfer/exchange of waqf properties.
For both state and waqf properties, efficient management and collec-
tion of revenue depended on the delegation of authority—in the case of
state lands, a tīmārī or state official was appointed to oversee production
and revenue collection and in the case of waqf properties, a mutawallī (or
other comparable official) was chosen either by the waqf founder or judge
to manage the day to day affairs of the waqf. Clearly, the organization of
the Ottoman land system incorporated a system of checks and balances.
The legal establishment, represented by both muftīs and judges, monitored
the role of the different officials responsible for overseeing both state and
waqf lands. This legal authority played an important role in regulating
the relationship between the state and its agents and between the waqf ’s
founder, beneficiary(ies), and administrators. In the following chapters,
I will examine how legal scholars mediated between this administrative
class and the cultivators who actually worked these lands.
The evolution of Ḥanafī legal thought as it pertained to state and waqf
lands illustrates the overall adaptability and flexibility of the law itself,
 land tenure system in ottoman syria 65

a theme which will be revisited throughout this book. While the law
was careful to regulate the organization and administration of religious
endowments and public properties, it was also pragmatic in its under-
standing of the landlord’s relationship to his/her own property. Thus,
the law upheld notions of private property, albeit within the bounds of
laws protecting the broader public good. Furthermore, for example, while
the legal stipulations laid out in the waqf deed emphasized the continu-
ity and consistency of established waqfs, the law also incorporated legal
mechanisms that allowed for the dismemberment and alienation of waqf
properties and the re-assignment of waqf revenues by a designated ben-
eficiary. Through such mechanisms, the law proved to be both responsive
and pragmatic.
 CHAPTER TWO

TENANT AND SHARECROPPER OBLIGATIONS ON STATE

AND WAQF LANDS

The land laws formulated by muftīs and Islamic scholars between the
seventeenth and early nineteenth centuries delineated the obligations
and limitations governing tenants/sharecroppers engaged in leasing and
sharecropping arrangements. In laying out such obligations, jurists not
only protected the status of state and waqf lands, but also established a
standard governing the proper cultivation of agricultural lands, the back-
bone of these early modern economies. Tenants and sharecroppers were
engaged in three different types of contracts on arable lands—muzāraʿa
(sharecropping contract), musāqāt (lease of a fruit tree or an orchard for
a certain share of the fruit) and ijāra (lease contract).
In a bid to examine the nature of such tenancy contracts in Ottoman
Syria, this chapter begins by addressing the evolution of ijāra and muzāraʿa
in the context of Islamic law. Ultimately, the law (molded in many ways
by local custom) played an instrumental role in shaping landlord/tenant
relations as articulated in such contracts. The last three sections of the
chapter examine the actual limitations that governed cultivators on state
and waqf lands, focusing specifically on three different issues: the con-
tractual limitations on sharecroppers and leaseholders under muzāraʿa
and musāqāt; the sharecropper’s/tenant’s obligations to state officials and
waqf overseers; and the tax obligations of tenant cultivators.

The Evolution of Ijāra and Muzāraʿa

Ijāra
As defined by Johansen, the contract of tenancy (ijāra) in Islamic law is
the “legal institution that contributes towards transforming the possession
of arable lands into rent-yielding property.”1 According to both Johansen
and Joseph Schacht, the lease contract evolved sometime during the first

1 Johansen, Land Tax and Rent, 25.

tenant and sharecropper obligations on state and waqf lands 67

century of Islam.2 On arable lands, the lease contract allowed fields to be

leased to the tenant farmer in return for the payment of rent. The tenant,
in turn, who invested time and labor in working the land enjoyed usufruct
rights. Under a contract of tenancy on arable lands, tenants engaged in
the planting of trees and the cultivation of grains and various summer
crops including fruit and sugar cane. Lease contracts were legitimate on
those arable lands on which plants and trees did not already exist. Thus,
legally speaking, gardens, plantations, and pastures could not be subject
to ijāra. According to Ḥanafī law, it was forbidden to lease a pasture or
garden with the purpose of consuming its yields (‘tenancy of consump-
tion’ or ijārat al-istihlāk); the product is considered a fundamental compo-
nent of the rented property. Such an arrangement goes against the nature
of the lease contract under which the tenant is only permitted to utilize
the leased land.3 By the seventeenth century, however, many leases were
drawn up in such a manner that the lessee was entitled to a share of the
crop. Several lease contracts during this period also allowed the lessee
freedom in determining what to plant. In such contracts, the lessee was
legally permitted to take one-half, two-thirds or three-fourths (depending
on what is stipulated in the contract) of what he/she planted as his/her
own property, with the remaining share going to the landlord.4
Although, as Johansen emphasizes, the ijāra contract worked best
when crops were planted and harvested within a period of a year, in real-
ity such contracts were drawn for longer periods of time and for several
types of crops. During the Ottoman period, the typical length of a lease
contract was measured in terms of the ʿaqd (contract) which usually
lasted for a period of two to three years. This was in line with Ḥanafī law
which permitted the leasing of waqf land for only three years. According
to ʿAbdul-Karim Rafeq in his study of eighteenth-century Syria, the two
or three-year period for the contract depended upon several conditions
including: the size and nature of the waqf, the background/reputation of
the lessor and the lessee, and the approving judge’s school of law. Lon-
ger leases tended to be sanctioned mostly by the Shāfiʿī or even Ḥanbalī
judges. Because lease contracts were often renewed before their expira-
tion, it was not uncommon for such contracts to be extended indefinitely.5

2 Ibid., and Schacht, Introduction to Islamic Law, 20–22.

3 Johansen, Land Tax and Rent, 26.
4 Rafeq, “City and Countryside,” 312–13.
5 Ibid., 314 and Rafeq, “Making a Living of Making a Fortune in Ottoman Syria,” in
Money, Land and Trade: An Economic History of the Muslim Mediterranean, ed. Nelly Hanna
(London; New York: I.B. Tauris Publishers, 2002), 116–17.
68 chapter two

As will be explained in chapter three, tenants were often granted a lease

in perpetuity or long-term leases (ninety years) in exchange for maintain-
ing the property, building on it, or cultivating it, especially when the waqf
was determined to be a deteriorated property. Finally, as both Rafeq and
Johansen point out, rent was usually paid both in kind and in money.
Ḥanafī jurists have traditionally sanctioned money, goods, and services as
acceptable forms of rent.6

Muzāraʿa
By the seventeenth and eighteenth centuries, the peasant came to be
regarded more and more as a sharecropper (muzāriʾ) on state and waqf
lands. According to Peter Sluglett and Marion Farouk-Sluglett, the pro-
cesses in Syria which led to the prevalence of absentee landlordism and
ultimately sharecropping could be traced back to at least the early six-
teenth century.7
Similar to the ijāra contract, the muzāraʿa contract allowed for the
productive use of land in cases when proprietors were unable (absentee
landlords, for example) or unwilling to cultivate their own lands. Under
the muzāraʿa contract, proprietors entered into arrangements with cul-
tivators whereby each side provided certain factors of production (i.e.,
seed, land, labor, and cattle) into the cultivation process. Each partner in
a sharecropping contract was entitled to a share of the product based on
the elements of production contributed by each, and also by the terms
and legality of the contract itself. Although most commonly used on grain
producing lands, the muzāraʿa contract was also used on lands producing
summer crops.8 The sharecropping contract was legally governed (accord-
ing to Islamic law) by certain limitations: it had to be entered into by two
free adults (of any faith), the land should be well suited for the growing
of crops, and there should be no trees or plants/crops already grown on
the land. In cases in which one had the sprouting seed of crops (baql),
the sharecropping contract was valid because the work of growing the
crop had still not been undertaken—it was a future endeavor. Sharecrop-
ping contracts also had to clearly indicate the owner of the seed and the
share of the partner who did not own the seed.9 The collection of rent

6 Johansen, Land Tax and Rent, 27.

7 Sluglett and Farouk-Sluglett, “The 1858 Land Code,” 409–11.
8 Johansen, Land Tax and Rent, 51.
9 Ibid.; and Ibn ʿĀbidīn, Radd al-muhtar, 9:398–400.
tenant and sharecropper obligations on state and waqf lands 69

from sharecroppers differed in an important respect from that expected of

lessees in lease contracts. In most sharecropping contracts from the seven-
teenth through early nineteenth centuries, the rent was part of the yield of
agricultural production. Thus, once the yield was realized, it was divided
into shares, with a portion belonging to the sharecropper and another
portion designated for the proprietor as rent. Muftīs were quite specific
as to the conditions that had to be fulfilled by both landlords and tenants
in such agreements.
During the eighth and ninth centuries, the sharecropping contract was
criticized by Islamic scholars for religious and ethical reasons. Abū Ḥanīfa
opposed muzāraʿa on the basis that the arrangement could be exploit-
ative of the cultivator, given that the latter’s payment consisted of only
a part of the yields of his/her labor.10 Unlike the standard lease contract,
under which muzāraʿa and musāqāt both fell according to Abū Ḥanīfa,
the sharecropping contract involved hiring a laborer for an unknown
price at the start of the contract. For example, in a muzāraʿa arrangement,
the amount of grain which a land will produce is indefinite (will the crop
perish or be damaged?). In order to make such contracts more secure,
Abū Ḥanīfa maintained that arable lands should only be leased against
a set amount of money or goods. Finally, because the partners in such a
contract cooperate to realize the produce, no one partner had the right
to appropriate all of the yields of the land.11 Thus, in Ḥanafī law (simi-
lar in fact to Ḥanbalī law), sharecropping contracts, although permitted,
were governed by strict limitations (elaborated in sharecropping ḥadīths)
including: “the shares of each party to the contract must come from the
whole of the land and not a certain . . . part of it and must be stated in
terms of a proportion of the total crop and not as an absolute measure.”12
According to Shāfiʿī law, leasing land for a share of the product and
hiring a laborer for a share of the product are not legal because of the risk
involved, particularly for the laborer. Should the latter, for example, work
the land but produce no crop, then he/she would have performed the labor
without getting compensated. Thus, Mālik ibn ʿAnās and Muḥammad ibn
Idrīs al-Shāfiʿī, although supporting the validity of the musāqāt contract
based on the customary practices of Medīna and Sunna of the Prophet,
rejected muzāraʿa on the premise that it is “an aleatory transaction which

10 Johansen, Land Tax and Rent, 52–53.

11 Haque, Landlord and Peasant, 323–24; Ibn ʿĀbidīn, Radd al-muhtar, 9:406.
12 Donaldson, Sharecropping in the Yemen, 62.
70 chapter two

characteristically involves uncertainty and sale of future values.”13 Gen-

erally speaking, the Shāfiʿīs recognized the legitimacy of the muzāraʿa
contract only when it was part of a musāqāt contract. In other words, as
Donaldson explains, “if a musāqāt contract is concluded for a piece of land
under date palms or other irrigated perennial crops it can contain within
it a muzāraʿa contract which will allow the laborer to sow land under,
between and beside the trees.”14
Finally, the Mālikīs, in contrast to the other schools of law, seemed to
provide a more simplified understanding of the muzāraʿa contract. Rather
than classify it as a type of ijāra contract, they regarded it as a sharīka or
partnership in which each partner receives a share of the profit based
on his/her investment. Thus, for the Mālikīs, the unknown rent/unknown
wage problem which confronts the Shāfiʿīs does not exist.15
The four schools of law, as Donaldson points out, were generally more
hesitant about accepting those sharecropping contracts on annually sown
lands (muzāraʿa) than they were in accepting contracts on lands planted
with perennial crops (such as date palms and vines) and requiring irriga-
tion (musāqāt). This was largely because cultivation yields were more pre-
dictable on irrigated lands than on lands that had not yet been sown.16
In spite of this early opposition to sharecropping contracts, by the tenth
century, the latter came to be accepted with less restriction on the basis
of istiḥsān (the use of deduction to reach legal solutions that contradict
decisions made on the basis of analogical reasoning). This istiḥsān was
based on custom and a ḥadīth in which the Prophet entered into a share-
cropping agreement with Jews from the oasis of Khaibar.17 Over time, the
legal doctrine of muzāraʿa evolved with the changing social and economic
realities on the ground.
The following section explores in further detail the various conditions
established by Syrian legal scholars to govern sharecroppers and tenants
on arable lands, including such matters as the required time period of
sharecropping contracts, which party to the contract was required to sup-
ply the seed, agricultural implements, and animals necessary for plough-
ing and harvesting (and how this impacted the distribution of the yields),
and the relationship as well as difference between muzāraʿa and musāqāt
contracts.

13 Haque, Landlord and Peasant, 358.

14 Donaldson, Sharecropping in the Yemen, 62–63.
15 Ibid., 63.
16 Donaldson, Sharecropping in the Yemen, 62.
17 Johansen, Land Tax and Rent, 54.
tenant and sharecropper obligations on state and waqf lands 71

Contractual Limitations on Sharecroppers

under Muzāraʿa and Musāqāt

A sharecropper’s involvement in a muzāraʿa contract essentially meant

that he/she was engaged in a partnership (sometimes in conjunction
with another sharecropper(s)) with the owners/overseers/grant holders
of the land. The factors of production mentioned in the fatāwā include
land, seed, ploughing stock, and labor. Islamic law was quite specific about
how these factors of production should be combined by the partners
involved. According to Ḥāmid al-ʿImādī, only three combinations of the
four elements were considered legally acceptable by Ḥanafī jurists. These
include:
A) one person contributing land and seed and the other work and cattle
to the muzāraʿa; B) one person contributing land to the muzāraʿa, and the
other person work, cattle and seed; C) one person contributing work to the
muzāraʿa, and the other person contributing land, seed and cattle.18
The following fatwā issued by al-Ramlī provides insight into how profit
and or payment was determined according to what was contributed in a
sharecropping agreement:
Question: There are two brothers and two sons of one brother. One of the
brothers contributes greatly [to the farming of the land] while the other
[brother] contributes little in comparison to the others. One of the brothers
provides the seed and labor and one of the sons of this brother provides
seed, labor, and cows and the other son provides seed and cows. The second
brother provides only cows. Is this cultivated field fāsida and is the profit
(al-khārij) for the possessors of the seed (li-arbāb al-badhr) and nothing for
the brother who provides only the cows?
Response: Yes. The muzāraʿa is fāsida and the profit is for the possessors of
the seed according to what each has provided of the seed. The possessor of
the cow gets only a fair wage (ajr al-mithl).19
Although according to classical Ḥanafī law there could only be two part-
ners involved in a sharecropping contract, it seems, based on the fatāwā,
that it was not unusual for several individuals to enter into such contracts.
The law, however, did not recognize sharecropping contracts between
more than two people as legitimate. For example, in a case involving three
individuals where one provided the land, the other the seed, and the third

18 Ibn ʿĀbidīn, Al-ʿUqud, 2:184.

19 Ramlī, Al-Fatawa al-khayriya, 2:154.
72 chapter two

the cows and labor, Ibn ʿĀbidīn maintains that the sharecropping con-
tract is not valid and that the yield should go to the seed owner who is
also responsible for paying rent for the land, the ploughing stock, and the
labor.20 The legal literature details the various joint arrangements that
were considered invalid, such as when 1) the seed comes from partner A,
land from partner B, livestock from partner C, and labor from partner D.
2) the seed and livestock come from partner A, land from partner B, and
labor from partner C. 3) the seed and land come from partner A, livestock
from partner B, and labor from partner C.21
As demonstrated in al-Ramlī’s fatwā, peasants often owned livestock
and seed or at least had access to such factors of production through leas-
ing.22 In contrast to seed (and land combined with seed, although not
mentioned here), however, which earned a share of the product propor-
tionate to its contribution, ploughing stock alone was rewarded by a fair
wage (often specified as a set share of the product). In fact, as various
legal scholars articulate, the partner who contributes only labor or a com-
bination of labor and livestock is also only entitled to a wage and thus is
in a disadvantaged position.23 However, this partner is also entitled to a
wage even if the crop did not come to fruition before the expiration of the
contract.24 Even in the case of an invalid sharecropping contract involv-
ing one partner who provided labor and seed and another who provided
livestock and land, Khalīl al-Murādī maintains that while the seed owner
gets all the produce, the latter is obligated to pay the other partner a fair
wage for utilizing his livestock.25
Ḥanafī jurists, beginning in the twelfth century, came to stress the
importance of the seed in agricultural production.26 The value placed on

20 Ibn ʿĀbidīn, Al-ʿUqud, 2:184–85. For another example of an invalid sharecropping

contract between three individuals—one providing the seed, the second the livestock,
labor and land, and the third a Persian wheel that is activated by the force of his
animals—see Majmuʾ fatawi al-Muradiya, Zahiriya 2642, fol. 146.
21 Ibn ʿĀbidīn, Al-ʿUqud, 2:185 and Radd al-muhtar, 9:403.
22 A fatwā pertaining to the leasing of livestock is found in Ramlī, Al-Fatawa al-khay-
riya, 2:109.
23 Ibid., 2:149, 153, 155; and Ibn ʿĀbidīn, Radd al-muhtar, 9:405. Those partners who con-
tributed the seed were also in a privileged position in musāqāt contracts. In this type of
sharecropping arrangement, peasants labored to irrigate orchards and to plant and protect
a variety of trees (not crops) in return for part of the produce or a simple wage (Ramlī,
Al-Fatawa al-khayriya, 2:156–59).
24 Ibn ʿĀbidīn, Radd al-muhtar, 9:405.
25 Majmuʾ fatawi al-Muradiya, Zahiriya 2642, fols. 148–49.
26 For examples of the primacy of the seed owner, see also Fatawa al-Nabulusi, Zahiriya
2684, fol. 190; and Majmuʾ fatawi al-Muradiya, Zahiriya 2642, fols. 141, 145.
tenant and sharecropper obligations on state and waqf lands 73

the seed resulted from the fact that it was the most ‘commodifiable’ ele-
ment out of the four. In the eyes of the jurists, seed, unlike labor, land
and cattle, was “consumed in the act of sowing and thus ha[d] to be
replaced.”27 Although all four elements were ultimately ‘commodified’
with the proliferation of the sharecropping contract and the onslaught
of increasing commercialization in the region, many jurists supported
a hierarchal order between the means of production and labor, giving a
privileged position to the former. Thus, for al-Ramlī, the sharecropping
contract referred to in the above fatwā is voidable ( fāsida) and against
Ḥanafī law because a share in the overall crop yield belongs only to those
partners who contribute some of the means of production (i.e. the seed)
and not the brother who only contributes the livestock (the fatwā insinu-
ates that this brother sought to obtain a share of the overall profit rather
than settle for a wage).28
For Ḥāmid al-ʿImādī, the validity of the sharecropping contract itself,
rather than only the weaker partner’s contribution of stock and/or labor,
is the most significant factor in determining whether or not the weaker
partner should receive a wage or share in the profit. Consider the follow-
ing fatwā:
Question: Zayd put forth his land to ʿAmr on the premise that he culti-
vate it with Zayd’s seed and his (Zayd’s) cows and [the contract between
them] does not specify the period of the agreement and also stipulates that
the reaping/harvesting, winnowing/fanning, and the threshing are ʿAmr’s
responsibility and that he ʿAmr is entitled to one-fourth of the profit. If ʿAmr
does not till or plow the land and does not cultivate and or plant the land,
but only waters it and harvests it, is the muzāraʿa contract null and void and
the proceeds are for Zayd and ʿAmr only gets a wage for his labor.
Response: Yes. If [the contract] stipulates the harvesting, threshing, and
winnowing/fanning were the responsibility of the laborer, then the contract
is null . . . because these activities should take place after the fulfillment of
the contract and what takes place after the end of the contract in terms of
what is required of the laborer is null and void even if the laborer harvested
the crop and threshed [it] and gathered [it] without this being required
of him. . . .29

27 Johansen, Land Tax and Rent, 56. See also Ibn ʿAbidīn, Radd al-muhtar, 9:397.
28 Ramlī, Al-Fatawa al-khayriya, 2:154. al-Ramlī also emphasizes that a partner who
contributes seed (combined with one or two of the other four elements) is entitled to his
share of the crop even if he leaves the land while the crop is being cultivated and then
returns asking for his share.
29 Ibn ʿĀbidīn, Al-ʿUqud, 2:187–88.
74 chapter two

Thus, for al-ʿImādī, ʿAmr is entitled to a wage not only because he con-
tributed labor to the sharecropping arrangement, but because the con-
tract itself is not legitimate. To begin with, the actual time period of the
contract is not specified. Although al-ʿImādī does not emphasize this in
his response, he stipulates in several other fatāwā that the time period of
the contract must be delineated for it to be a legally binding agreement.30
Similar to al-ʿImādī, al-Ramlī also rules that sharecropping contracts and
lease agreements must lay out a specific time period in order to be con-
sidered legitimate. This was to the benefit of both the sharecropper/ten-
ant and landlord because it established a period by which a particular
crop should reach fruition. According to al-Ramlī, the only way a dispute
could be addressed legally and fairly when a particular crop did not reach
fruition was if a time period was established from the beginning.31 Sec-
ond of all, as al-ʿImādī mentions in the above fatwā, a legal sharecrop-
ping contract must focus on the actual cultivation of the crop and not
what takes place after the crop has been yielded. He stipulates, however,
that if a sharecropping contract is legitimate then the weaker partner who
contributes only labor and/or livestock could collect a share of the profit
rather than a wage if that is indicated in the sharecropping contract. Con-
sider the following fatwā:
Question: ʿEid gives seed, land and cows to ʿAmr on the basis that he (ʿAmr)
cultivate the land in a specified period of time and is afterwards entitled to
one-fourth of the profit. After the crop is yielded, ʿAmr is forbidden from
taking a share in the profit and thereby insists on receiving a wage [for his
work]. Should ʿAmr not receive a wage and is he not legally entitled to his
share of the profit?
Response:. . . . The sharecropping contract is legitimate and [ʿAmr] must
take his agreed upon share from the profit; he should not receive a wage.32
In illegitimate sharecropping contracts, the weaker partner is the one who
did not contribute the seed and this partner is only entitled to a wage
under such non-binding contracts. Here the power of the partner contrib-
uting the seed is evident. Ultimately, the right of the weaker partner to
receive a wage also extended to his/her heirs should he or she die during
the course of a contract.33

30 Ibid., 2:185–6, 188.

31 Ramlī, Al-Fatawa al-khayriya, 2:182.
32 Ibn ʿĀbidīn, Al-ʿUqud, 2:186.
33 Ibid., 2:187.
tenant and sharecropper obligations on state and waqf lands 75

Ḥāmid al-ʿImādī’s fatāwā indicate that muzāraʿa and musāqāt con-

tracts were often held by the same individual on the same plot of land.
As long as these contracts were drawn up in a legally binding manner,
such arrangements were legitimate. The partner who contributed labor
and/or livestock (i.e. the weaker partner) and who was also the musāqāt
leaseholder in such contracts was entitled to a share of the profit as long
as the crop/fruit yield was realized in the specified time period.34 There
were certain limitations, however, which governed such arrangements.
Al-‘Imādī emphasizes that if a specific individual’s sharecropping contract
on a particular plot of land ends, that person’s musāqāt contract did not
have to end as well. In fact, according to him, it is legally invalid to end
a musāqāt contract simply because a muzāraʿa contract came to an end.
The musāqāt contract in such circumstances can only be terminated if the
laborer/leaseholder is proven to be a “traitor to his work” and jeopardizes
the growth/yield of the trees for which he/she is responsible. Neverthe-
less, Ḥāmid al-ʿImādī states that an individual’s sharecropping agreement
does come to an end if that person’s musāqāt contract is terminated.
Ibn ʿĀbidīn elaborates on this by explaining why. If a musāqāt contract
becomes null and void, this implies that the trees on a particular plot
of land are no longer being worked or labored upon by the leaseholder.
This in turn means that an important part of the agricultural produc-
tion is being neglected. Thus, the muzāraʿa contract would become void
because by definition the consistent and proper cultivation of the land
and its byproducts is being jeopardized. It can be assumed from this that
a plot of land containing not only crops, but also trees must have both
muzāraʿa and musāqāt contracts in place. It is not clear from the fatāwā
what would happen if the muzāraʿa and musāqāt contracts pertaining to
a specific plot of land are held by different individuals. It appears from
the legal literature that it was fairly common for the same individual(s) to
conclude both contracts if need be on a particular land.
Ibn ʿĀbidīn explains, however, the circumstances under which muzāraʿa
did not become invalid with the nullification of a musāqāt contract:
The termination of an ijāra contract must take place if it becomes apparent
that a musāqāt contract is null and void in its originality . . . If, however, the
musāqāt contract is legitimate [in its initial form] but then becomes null
and void because, for example, the fruit/plant yield is not realized during
the period of the contract or because it is abrogated for any other reason(s)

34 Ibid., 2:188.
76 chapter two

[which may arise after the initial conclusion of the contract]. . . . then the
ijāra contract is not nullified because what happens in an [initially legiti-
mate] and binding [contract] is forgivable and what happens in a [contract]
which is in its originality void is not forgivable . . .35
Although the fatwā initially refers to the relationship between muzāraʿa
and musāqāt, it is interesting that in his response, Ibn ʿĀbidīn inter-
changeably refers to muzāraʿa as ijāra. Through the ‘contract of tenancy’
(ijāra), fields were let out to tenant farmers. As stated earlier, the contract
implies transferring the use of arable lands from the lessor to the tenant
in return for the payment of rent. The tenant enjoyed the usufruct of the
land in so far as the fruits were the result of his/her own labor and invest-
ment. According to Johansen, after the twelfth century, the legal status of
tenant cultivators was depicted increasingly (particularly by Central Asian
jurists) as one of inequality vis-à-vis landlords, which, in Ḥanafī law (par-
ticularly in its more classical version), was a defining feature of muzāraʿa.36
This fatwā would seem to support such a conclusion, seeing as how the
distinct character of the ijāra contract is somehow lost here. This fatwā
is also in line with general Ḥanafī law which perceived sharecropping as
a form of ijāra.
Similar to muzāraʿa contracts, musāqāt contracts were bound by cer-
tain limitations. To begin with, a musāqāt contract had to delineate a
specific time period and the shares to be divided among the partners
involved. When such a contract was concluded on waqf property, a group
of Muslims sometimes legitimized the arrangement by testifying that the
contract worked to the benefit of the waqf.37 Often times, furthermore,
such contracts were executed before a qāḍī.38
A musāqāt contract between individuals who held common ownership
of land was considered illegitimate. Consider the following fatwā issued
by Ḥāmid al-ʿImādī:
Question: There is an area which includes fig, apple, and other fruit trees
which are grown in a sharīʿa manner on a waqf land. The land is jointly
owned by Zayd, ʿAmr, and Hind. Each of them has a specific share. Zayd
entered into a musāqāt contract on his share with his partner ʿAmr under
the condition that he (Zayd) would get part [of the yield]. ʿAmr labored on

35 Ibid., 2:192.
36 Johansen, Land Tax and Rent, 26, 42–43.
37 Fatawa al-Nabulusi, Zahiriya 2684, fol. 193.
38 Ibid.; see also fol. 152a.
tenant and sharecropper obligations on state and waqf lands 77

the trees. Is the musāqāt illegitimate and should no wage be paid to ʿAmr,
but the profit split according to their ownership of the land?
Response: Yes . . . it is illegitimate and [ʿAmr] gets no wage for his work and
the yield should be divided according to their ownership . . . al-Ramlī ruled
that one cannot enter into a musāqāt contract with his partner.39
Also, al-ʿImādī emphasizes that a person who holds a musāqāt contract
can only receive a portion of the fruit yield if the latter is realized during
the period of the contract. If part of the fruit is realized prior to the end of
the lease contract, but a portion is not, then the musāqāt holder receives a
share of the fruit which flourished, but only a wage for the work done on
the fruit which did not grow until after the end of the contract.40
Finally, according to the fatāwā of the early seventeenth-century muftī
ʿAbd al-Raḥmān al-ʿImādī, if a musāqāt holder attests to the legality of
a musāqāt contract and admits that ownership of the plant lay with the
lessor, then once the lease contract comes to an end, the lessee cannot
legally lay claim to any part of the plant.41

Sharecropper/Tenant Obligations to
State Officials and Waqf Overseers

State Concerns Regarding Cultivation

State and local forces (represented here by jurists) often had differ-
ent concerns or agendas that guided their formulation of land laws on
state owned lands. This section will look more closely at the rationale
that informed both state and local interests in regards to cultivation on
mīrī lands.
By the middle of the sixteenth century, state lands (mīrī), comprising
approximately ninety percent of all the arable lands, were administered
according to the qanūn, or Ottoman state law.42 Drawing on Islamic legal
principles and local practice, qanūn governed the landlord/tenant rela-
tionship as it related to landholding and taxation. Legally speaking, the
ownership of state lands (or the raqaba) belonged to the public treasury,

39 Ibn ʿĀbidīn, Al-ʿUqud, 2:193.

40 Ibid., 2:191–92.
41 Fatawa bani al-ʿImadi, Zahiriya 5864, fol. 269b. Interestingly, there are rulings from a
Ḥanbalī and a Mālikī jurist included in the text of this fatwā which are supportive of ʿAbd
al-Raḥmān’s opinion.
42 Inalcik, “The Ottoman State,” 112–13.
78 chapter two

which, in turn, assigned these lands to a sipāhī or tīmārī. The cultivators

on mīrī or state lands had only usufruct or possession rights (referred to
as taṣarruf ) and often times paid kharāj to the state official. Two differ-
ent types of kharāj were levied from the cultivators—kharāj al-muqāsama
and kharāj al-muwazzaf, the former being based on a proportion of the
crop and the latter on the area cultivated.
In a bid to provide an authoritative legal definition of the Ottoman mīrī
regime and the system of land taxation, the Ottoman Grand Muftī Abū
al-Suʿūd issued fatāwā in the mid sixteenth century pertaining to land
tenure with commentaries based on classical Islamic law. The state, repre-
sented here by the Grand Muftī, was preoccupied with ensuring the integ-
rity of state lands. Indeed, the legal stipulations put forth by Abū al-Suʿūd
on mīrī lands became an integral part of the new law codes implemented
and used by the state.43
One of his main concerns in this legal code was to distinguish state
lands from private properties. He was critical of the role played by judges
who legalized the property rights of cultivators on state lands. In a bid to
define the status of cultivators on mīrī lands, Abū al-Suʿūd maintained that
they had usufruct rights only; they could not own, sell, or divide the land.
Nevertheless, a steadfast cultivator’s lease on the land entitled him/her to
pass on such possession rights through the direct male line. In those cases
where the tenant had no sons, other relatives could assume such rights
to the land by paying the tāpū. Finally, these mid sixteenth-century land
laws, although protective of state rights, also sought to ensure the con-
sistent and proper cultivation of the land. Two injunctions in particular
were formulated with this intent—one being that if the cultivator failed
to work the land for three years, he could be removed by the qāḍī, and
the other, a cultivator who left the land (in theory, impermissible) would
be obliged to pay a tax called çift bozan resmi.44
Faced with the problem of labor shortage, the state enacted such mea-
sures to ensure uninterrupted cultivation. Firmāns (imperial orders or
decrees) in the mühimme defterleri (imperial registers) echoed the con-
cerns laid out by Abū al-Su‘ūd about maintaining the stable cultivation of
land and collection of revenues. These concerns are evident, for example,

43 Singer, Palestinian Peasants, 47.

44 Inalcik, “Land Problems,” 222; Inalcik, “The Ottoman State,” 112–113; and Bernard
Lewis, “Ottoman Land Tenure and Taxation in Syria,” in Studia Islamica 50 (1979): 118.
tenant and sharecropper obligations on state and waqf lands 79

in mühimme entries dealing with peasant rebellions and Bedouin raids.45

In the face of such uprisings, the Ottomans’ main concern was to ensure
the re-institution and stability of agricultural production. As Uriel Heyd
points out, for example, Ottoman officials in and around Palestine during
the late sixteenth century were confronted with the spread of fire-arms
among the general population, smuggled in by ship captains coming from
different Ottoman ports and sold by European traders actively involved in
the Levant trade. This, in conjunction with the absence of local governors
and their soldiers who were off participating in various wars, was at least
partly responsible for uprisings that disrupted agriculture.46
The concerns of the state are highlighted in a mühimme entry dated
from 1559 which refers to Bedouin raids in the region of Ajlun:
This is an order to the beylerbey of Damascus. You sent a letter to my exalted
port in which you informed me that the bey of Ajlun, Murad, model of noble
princes—may his honor last—and the qāḍī of Ajlun have sent a letter to
you saying that the people of Ajlun itself have come saying that “every year
5,000 Arabs come from the desert to our province. They have destroyed and
devastated our lands and gardens, driven away our sheep, plundered our
other property, and inflicted other kinds of aggression. If a fortress is not
built in Ajlun itself, we will not have the ability to stay.” It wasn’t reported,
however, that, if the fortress is constructed, how will the troops be provided
and has the construction any benefit and has it any value to construct? How
much money do you need and how many troops will be enough? I order
that when the imperial order arrives, you should write and inform me if it is
necessary to build a fortress in that place and if built, how many troops will
be necessary and from which places could these troops be provided and is
it necessary to produce them newly or is it possible to provide troops from
fortresses of that region?. . . .47

45 Heyd, Ottoman Documents on Palestine, 88. There are several other imperial orders
in the collection which pertain to bedouin threats (91–101).
46 Ibid., 79–80. For more on the nature of trade and economy in Ottoman Syria dur-
ing the sixteenth and seventeenth centuries, see Bruce Masters, The Origins of Western
Economic Dominance in the Middle East: Mercantilism and the Islamic Economy in Aleppo,
1600–1750 (New York: New York University Press, 1988); and Amnon Cohen, Economic Life
in Ottoman Jerusalem (Cambridge; New York: Cambridge University Press, 1989).
47 Ottoman central administration to the Beylerbey of Damascus, mühimme, 1559,
in Mühimme Defteri (Ankara: Basbakanlik Devlet Arsivleri Genel Mudurlugu, Divan-i
Humayun Sicilleri Dizisi, 1993), vol. 3, no. 1294, 565–66. A similar mühimme was issued in
1560 pertaining to a region close to Gaza which was being threatened by bedouin raids
(vol. 3, no. 563, 254). The imperial authority refers to the seriousness of the problem of
bedouin raids throughout the sanjaq of Damascus in a mühimme dated from 1559 (vol. 3,
no. 315, 143).
80 chapter two

This mühimme not only illustrates the significant damage which Bedouin
raids could cause to agriculture and rural life in general, but the serious-
ness which the Ottoman authorities attributed to such threats. Obviously,
this problem was significant enough to warrant the consideration of
the building of a new fortress in the region. Nevertheless, the authori-
ties needed more detailed information before proceeding with such an
endeavor. Clearly, the financial considerations of building a new fortress
weighed heavily on the state, indicating that budgetary constraints during
this period did influence Ottoman policy.48 However, Ottoman sources
have shown that the building of such fortresses was usually successfully
accomplished, stimulating population growth and development.49
The threats caused by such Bedouin raids must be put into perspective,
however. The traditional historiography on Bedouins (relying mostly on
Ottoman state sources) in early modern Syria and Palestine has tended to
over-emphasize the anarchy and destruction caused by Bedouins. Moshe
Ma‌ʾoz, for example, describes the period before the Egyptian invasion of
Syria as one dominated by the destructive influence of Bedouin tribes, who
plundered and raided caravans, travelers, and villages and had a destruc-
tive impact on farm lands.50 Although Bedouins could at times cause
significant harm to the peasantry, as illustrated in the above mühimme,
the view of Bedouins as essentially a threat to settled populations is no
longer widely supported. Both Doumani and Talal Asad emphasize link-
ages between nomads and peasants, focusing on the reciprocity between
them as they engaged in trading and other activities.51

48 This is reflected in another firmān as well where the state works with local officials
and military officers as building contractors in order to save money. See Heyd, Ottoman
Documents on Palestine, 107. For more on Ottoman administration at the provincial level
during this period, see Metin I. Kunt. The Sultan’s Servants: The Transformation of Ottoman
Provincial Government, 1550–1650 (New York: Columbia University Press, 1983). For more
on Ottoman military institutions, see Catherine B. Asher, “Ottoman military architecture
in the early gunpowder era: a reassessment” in City Walls: the Urban Enceinte in Global
Perspective, ed. James D. Tracy (New York: Cambridge University Press, 2000).
49 Heyd, Ottoman Documents on Palestine, 114–15. It is clear from this firmān that mar-
kets were held near the fortresses.
50 Moshe Maʾoz, Ottoman reform in Syria and Palestine, 1840–1861: The Impact of the
Tanzimat on Politics and Society (Oxford: Oxford University Press, 1968), 9.
51 Doumani, Rediscovering Palestine, 201–205 and Talal Asad, “Bedouin as a Military
Force: Notes on Some Aspects of Power Relations between Nomads and Sedentaries in
Historical Perspective,” in The Desert and the Sown: Nomads in a Wider Society, ed. Cynthia
Nelson (Berkeley: Institute of International Studies, University of California, 1973), 61–74.
tenant and sharecropper obligations on state and waqf lands 81

In his study of Ottoman Syria, Douwes also emphasizes the reciprocity

that existed between Bedouins and settled agricultural communities.52 He
discusses how Bedouins were actively engaged in trade with surround-
ing towns (especially inland cities). Sedentary populations traded their
products (such as wheat, clothing, and weaponry) for various goods pro-
vided by the Bedouins, including animals for transport, meat, wool, skins,
and dairy products. Pastoralists also offered important services to villag-
ers. For example, they provided protection to sedentary populations for
a yearly payment. Under such arrangements, the tribesmen would ensure
the safety of villagers from incursions by other parties, which often times
included other Bedouin groups. Villagers also benefitted from the fact that
Bedouins often tended their sheep, goats and cattle, transported their
goods to market, provided them with protection during their travels along
the desert route, and, on some occasions, partook in farming. According
to Douwes, most conflicts between settled cultivators and Bedouins cen-
tered on minor economic and social disagreements, usually involving lost
or stolen animals. This is illustrated in the following fatwā issued by ʿAbd
al-Raḥmān al-ʿImādī during the seventeenth century:
Question: What would the Shaykh al-Islām . . . say about a man who left with
Zayd a mare and asked him to send it to a given village so that it would
feed and sleep in the village. [Zayd] took it to the village, and attended to
it day and night and then the Bedouins came to the village and took the
mare . . . and now the man wants Zayd to pay the mare’s price. Is he respon-
sible or not?
Response: Zayd should not be made to pay, since there was no shortcoming
on his end.53
There was a fairly active trade that existed in stolen pack animals during
this period. Bedouins (or for that matter villagers) were certainly not the
only culprits, however, involved in stealing animals—Douwes points out
that soldiers were often times guilty of such acts.54
Certain imperial orders also highlighted the close connections that
existed between Bedouins and peasants in trade and agriculture.55 These
same orders, however, expressly prohibit the peasants from trading with
the “uncivilized” and “rebellious” Bedouins. Nevertheless, the state did at

52 Douwes, Ottomans in Syria, 21–23.

53 Fatawa bani al-ʿImadi, Zahiriya 5864, fol. 36.
54 Douwes, Ottomans in Syria, 23.
55 Heyd, Ottoman Documents on Palestine, 93–94, 95–96.
82 chapter two

times attempt to divert the Bedouin threat by incorporating Bedouin lead-

ers into the official administration.56

The Concerns of Local Jurists Regarding Cultivation

The majority of Ottoman Syrian fatāwā on land tenure make no reference
to the problem of Bedouin raids, indicating that perhaps they were not
such an immediate or grave problem at the local level. The predominant
concern of local muftīs centered around two different issues: the inalien-
ability of state and waqf lands and the proper and efficient cultivation of
these agricultural lands. The jurists elaborated on the rights and obliga-
tions of tenants and sharecroppers involved in the cultivation and pos-
session of state lands (al-arādī al-sulṭāniya). As previously mentioned,
al-ard al-sulṭāniya, was governed by various regulations meant to ensure
its character as state owned land. In the opinion of al-Ramlī, for example,
and in accordance with Ottoman law, a grant-holder (whether this be
the sipāhī or the cultivator) could not acquire the legal right of owner-
ship. He could neither sell nor bequeath state land,57 nor could he trans-
form it into waqf.58 In his legal treatise, ʿUbaydu’llah ibn ʿAbd al-Ghānī
cites various legal opinions from numerous muftīs, including Qāḍīkhān
(d. AH 592/AD 1196), Najm al-dīn ibn Muḥammad al-Zāhidī (d. AH 658/AD
1260), Ibn al-Humām (d. AH 861/AD 1457), the Grand Muftī Abū al-Suʿūd
(d. AH 982/AD 1574), and Muḥammad Alāʾ al-dīn al-Ḥaṣkafī (d. AH 1088/
AD 1677), who upheld that peasant cultivators on state lands (and waqf
as well) only have possession and not ownership rights (or raqaba) to
the land. ʿUbaydu’llah’s prolonged discussion of the status of peasants on
such lands is perhaps itself an indication that sharecroppers and tenants
increasingly treated these lands as their own property by the late eigh-
teenth century.59 Thus, he emphasizes that mīrī lands are simply on ‘loan’
to sharecroppers. The latter are not in the position to consign, donate, or
sell the land without the express permission of the landlord. He states,

56 Moshe Sharon, “The Political Role of the Bedouins in Palestine in the Sixteenth and
Seventeenth Centuries,” in Studies on Palestine during the Ottoman Period, ed. Moshe Maʾoz
(Jerusalem: The Hebrew University Institute of Asian and African Studies, 1975), 11–30.
57 Ramlī, Al-Fatawa al-khayriya, 1:91, 124.
58 Seikaly, “Land Tenure,” 403.
59 Al-Nur al-badi fi ahkam al-aradi, Zahiriya 4400, fols. 139a, 139b, 140a, 140b, 141a, 142b,
148a-148b, 149b, 150a–150b.
tenant and sharecropper obligations on state and waqf lands 83

“whatever the sultan grants from the lands of bayt al-māl is considered
just a delivery of the utility.”60
A reading of al-Ramlī’s fatāwā indicates, however, that the selling of
state land by peasant cultivators was a common occurrence at least as
early as the seventeenth century. In the following fatwā, he addresses such
an issue:
Question: A peasant who farms waqf or state land in the winter and the
summer sells the land to a man at a fixed price and leaves it to him at his
good judgment so that this man benefits from the cultivation and usufruct
of the land for years. After this man’s death, his child takes possession of the
land and benefits from it for years, so that the period of his and his father’s
usufruct of the land spans over twenty years. Was the sale of the land appro-
priate and do the seller and his heirs have the right to reclaim the land?
Response: The seller and his heirs do not have the right of reclamation. As
for the solution for his leaving the land by choice for this period, we said
that its sale is not legal since the right of usufruct/cultivation remains as
long as the beneficiary benefits from it and the waqf and public treasury
benefit with his benefit. If he leaves [the land] by choice, he loses his rights
even if he has the right of occupancy through the kirdār. . . . So how is it that
his rights will not be lost with his absence from the land, his not having
a kirdār, and the [second] farmer having established buildings, trees and
plants on the land . . .61
This fatwā illustrates that cultivators during this period often treated state
lands as their own property. The transfer of usufruct rights by their sale,
rental or pawn was also done customarily in other regions of the Arab
world during this period. In his study of peasant land tenure in Egypt prior
to and after the ascendancy of Muḥammad ʿAlī, Cuno maintains that the
peasantry tended to disregard the distinction between ownership of the
land and the possession of its usufruct, a distinction which was often not
made by the local court itself in its decisions on peasant tenure.62 Accord-
ing to Doumani, peasants of Jabal Nablus up through the early nineteenth
century treated state lands as private property by mortgaging, renting, or
selling their usufruct rights.63 This trend continued and became more pro-
nounced, on both state and waqf lands, by the late nineteenth century.
The Damascene muftī of the time, al-Ḥusaynī, suggests in fact that part of
the problem may be jurists and scholars themselves who misinterpret or

60 Ibid., fol. 146a.

61 Ramlī, Al-Fatawa al-khayriya, 2:153.
62 Cuno, Pasha’s Peasants, 72–78.
63 Doumani, Rediscovering Palestine, 157–58.
84 chapter two

misunderstand the law and wrongfully approve various transactions on

state lands (such as sale, exchange, mortgage, etc.), without being fully
cognizant of the fact that matters pertaining to ḥaqq al-qarār (possession
rights or usufruct) on state lands are under sultanic law. Drawing on the
fatāwā of the Grand Muftī Abū al-Suʿūd, the seventeenth-century jurist
Yaḥya Minqarizadeh al-ʿAlaʾī (d. AH 1088/AD 1677), and al-Ramlī himself,
al-Ḥusaynī argues that the tāpū payer or the individual with ḥaqq al-qarār
(long term usufruct rights) is only a borrower/tenant and has the right to
profit from the land as long as he/she pays the necessary dues. These indi-
viduals do not have property rights on state and waqf lands and thus can-
not sell, endow, mortgage, or donate such properties.64 Al-Ramlī’s fatwā
cited above, however, does mention certain conditions (i.e. the establish-
ment of kirdār—trees and buildings erected on the land by the cultivator)
which strengthened the cultivator’s possession rights, making the distinc-
tion between ownership and possession even more tenuous. This will be
considered in more detail in chapter four.
Since the mid sixteenth century, the illegal sale of state-owned lands
had become widespread enough to cause concern among government offi-
cials. It was because of this that Abū al-Suʿūd issued rulings condemning
qāḍīs who approved of such transactions. In the above fatwā, al-Ramlī’s
ruling was in line with formal views of land tenure. He was opposed to
the selling or leasing of tīmār/sulṭāniya and waqf land by their cultiva-
tors on the grounds that they themselves were lessees, and thus were not
allowed to sublet the property. Thus, the farmer retained usufruct rights
only and he must remain on the land (if he wanted security of occupancy)
as long as its cultivation reaped rewards for him and the public treasury
or waqf. Possession rights could be broad when cultivators had long-term
use rights (often referred to as mashadd maska), which, as highlighted
in the above fatwā, could result from the establishment of kirdār. How-
ever, cultivator rights were limited if peasants did not have such usufruct
rights to the land. For example, al-Nābulusī describes a case in which a
group of villagers cultivate lands in a particular village, half of which are
part of a waqf and the other half part of a tīmār, but they do not pos-
sess long-term usufruct rights to these lands. Rather, they alternate cul-
tivating and sowing the lands between them and pay the required dues.
Thus, when the tīmārī and the waqf official want to appropriate all the
lands of the village and redistribute them equally among the peasants,

64 Al-Ikhbar ʿan haqq al-qarar, Zahiriya 100, fols. 47a, 47b, 48a.
tenant and sharecropper obligations on state and waqf lands 85

the muftī rules in favor of their actions.65 As will be discussed in chapters

three and four, when tenants or sharecroppers possessed long-term usu-
fruct rights to the land, such a ‘redistribution’ or ‘reshuffling’ of land usage
was difficult to justify legally.
Al-Ramlī seems to imply in the above fatwā that if cultivation does
not reap rewards for the peasant, then he has the right to leave the land.
According to him, furthermore, the seller should lose his rights to the land
not because he sold the land (which al-Ramlī states is illegal), but because
he willingly relinquished the cultivation of the land (this emphasis on vol-
untary desertion is important and will be discussed further on). The inva-
lidity of the sale, furthermore, does not in any way negate the possession
rights that the new usufruct holder has acquired.66 Ultimately, the muftī’s
interest is to ensure the consistent and proper cultivation of the land.
Such a sentiment is echoed again, almost a century later, by ʿUbaydu’llah
ibn ʿAbd al-Ghānī. Referring extensively to Ottoman qanūn in his exposi-
tion of the laws governing usufruct rights on state (and to a lesser extent
waqf ) lands, ʿUbaydu’llah maintains that peasants who willingly abandon
the land or leave it idle in a manner that brings harm to bayt al-māl could
lose their usufruct rights.67
Ḥāmid al-ʿImādī goes further than al-Ramlī by emphasizing that the
transfer of usufruct rights by the cultivator, even if to the latter’s son, must
have the approval of the landowner or land overseer:
Question: There are lands which comprise both waqf and mīrī land. The
mīrī lands are under the control/management of Zayd. The aforementioned
is responsible for all matters pertaining to these lands under the authority
of the sultan. The shares in the land held by the waqf and the state are
divided in accordance to sharīʿa law. . . . There is a man who holds mashadd
maska over a portion of the lands and he transferred [his possession/
usufruct rights] to another man. Does this transfer necessitate the approval
of Zayd and the nāẓir of the aforementioned waqf lands?
Response: Yes. Abū al-Suʿūd al-ʿImādī was asked about a man who had usu-
fruct on an ʿushrīya land who entrusted his possession rights to his relative,
other than his son or son of his son . . . or to a foreigner (ajnabī) without
the permission of the landowner (saḥib al-ard). The entrusted individual
(mufawwaḍ) worked the land for a long period of time and then died. Does
the owner of the land have the right to take the land from the usufruct

65 Fatawa al-Nabulusi, Zahiriya 2684, fol. 107a.

66 ʿUbaydu’llah ibn ʿAbd al-Ghānī reiterates this same ruling by al-Ramlī in his treatise
(Al-Nur al-badi fi ahkam al-aradi, Zahiriya 4400, fol. 150b).
67 Ibid., fol. 149a.
86 chapter two

holder (mutaṣarrif ) . . . [Abū al-Suʿūd’s] answer was that he has the right to
do this because the entrustment/authorization (tafwīḍ). . . . died when the
land was transferred from the hand of the entrusted individual without the
permission of saḥib al-ard. In Kitāb al-daʾwa there is a man who had usufruct
over a mīrī land for ten years and this established his ḥaqq al-qarār and
this cannot be taken from him . . . Nevertheless, mīrī lands . . . in the hands
of the reʿāya cannot be sold, given as charity or exchanged without the per-
mission of the imām . . . The Shaykh al-Islām Abū al-Suʿūd was asked about
this issue and he responded that all of these acts (taṣarrufāt) are legitimate
if approved by the sultan . . . mīrī lands cannot be owned by anyone but the
sultan. Whoever has taṣarruf over such lands does not have the right but
to entrust the right of his taṣarruf to another with the permission of the
landowner . . .68
Citing Ottoman state law as formulated by Abū al-Suʿūd in the sixteenth
century, al-ʿImādī argues that while the cultivator was entitled to transfer
his possession rights, he could only do so with the permission of the state
official responsible for overseeing the land or the waqf administrator.69 In
reality, however, as the fatāwā would seem to imply, such transfers often
took place without such permission. It is also evident from this fatwā that
ḥaqq al-qarār (coterminous to mashadd maska) offered the cultivator an
important sense of security on state lands. This issue is elaborated on fur-
ther in the following chapter.
The two previous fatāwā illustrate not only the importance of legal
opinions as sources of law, but also as reflections of existing social and
economic realities. Often times, such conditions were in conflict with
the opinions and legal rulings issued by muftīs. Ultimately, the concern
which legal thinkers had for ensuring the integrity of state and waqf lands
stemmed from an evolving local reality in which tenants/sharecroppers
treated such lands as their own property.

Waqf Lands
Legal scholars devoted a great deal of attention to clarifying the nature of
the legal relationship between waqf land and its actual cultivators. Gener-
ally speaking, the administrator leased a unit of waqf land to a cultivator
who, in return for a part of the crop or a fee, maintained the production of
the land. The land and labor organization of many waqf lands during this

68 Ibn ʿĀbidīn, Al-ʿUqud, 2:201.

69 Majmuʾ fatawi al-Muradiya, Zahiriya 2642, fols. 329, 333. Both fatāwā, issued by ʿAlī
al-Murādī and Ḥusayn al-Murādī respectively, emphasize that a cultivator cannot cede
his/her maska to another cultivator without first getting the permission of the mutakallim
(administrator).
tenant and sharecropper obligations on state and waqf lands 87

period resembled that on state owned lands. Furthermore, the regulations

concerning land use and the general status of tenants and sharecroppers
on waqf lands were also similar to those on state-owned lands.70 The fol-
lowing fatwā issued by Khayr al-dīn al-Ramlī illustrates how tenants and
sharecroppers on waqf lands were limited by the same regulations as cul-
tivators on state lands:
Question: There is a waqf land located in the holy city of Jerusalem which is
cultivated by a man who carries out the cultivation of an allotment of the
waqf from outside of it. He did this for a period exceeding twenty years. The
cultivator died and his heir took over cultivating the land in the same man-
ner as [the deceased]. Now, an individual alleges that he was a cultivator
on the land a long time ago and he wants the land to be removed from the
possession of the heir and given to another. Does he have the right to do
this without the permission of the mutawallī of the aforementioned waqf ?
Can the waqf land be the property of a cultivator or not?
Response: Waqf land cannot be owned, sold or bequeathed . . . The payments
which cultivators receive from cultivating the waqf are decided upon by the
mutawallī. He who cultivates the land for a period of time and then leaves
does not have the right to act on [the land] by driving away the person [cur-
rently cultivating the land] . . .71
Tenant cultivators on waqf lands had only usufruct rights over the lands
they worked. Furthermore, al-Ramlī emphasizes (yet again) that the vol-
untary desertion of the land by the cultivator resulted in the peasant’s
losing all rights of reclamation. In addition to being legally barred from
owning, selling or bequeathing waqf property, cultivators on waqf lands
(similar to those on state lands) were also not entitled to lease waqf lands
to third parties.72 The frequent reference in eighteenth century fatāwā to
lessees subleasing state or waqf properties, however, suggests that such
practices had in fact become more common over time. Muftīs by the eigh-
teenth century, furthermore, became more supportive of such arrange-
ments if concluded by a legitimate lessee.73

70 Inalcik, “The Ottoman State,” 125–26.

71 Ramlī, Al-Fatawa al-khayriya, 1:124. al-Ramlī issues similar fatāwā pertaining to ten-
ant cultivators on waqf lands (1:91, 111, 113).
72 Fatawa bani al-ʿImadi, Zahiriya 5864, fol. 81.
73 Majmuʾ fatawi al-Muradiya, Zahiriya 2641, fols. 387–88, 400, 407, 420; mss. 2642, fol. 326.
In an earlier fatwā, al-Nābulusī rules against a cultivator on a waqf land who subleases its
usufruct to another on the grounds that the cultivator himself did not have a legitimate
lease contract but only ḥaqq al-qarār (Fatawa al-Nabulusi, Zahiriya 2684, fol. 176b).
88 chapter two

Ultimately, jurists strove to ensure the proper and uninterrupted culti-

vation of all arable lands. Along the lines of tenants on state lands, cultiva-
tors on waqf lands were expected to meet certain standards and adhere
to specific obligations in order to ensure the efficient cultivation of agri-
cultural lands. Consider a fatwā issued by Muḥibb al-dīn al-Ḥanafī in the
seventeenth century:
Question: What do you say, may God forgive them all, about a waqf orchard
planted with fruits of various kinds that are being watered from a [particu-
lar] river on such and such day each week, and then a man rented the land
according to a legal document for a given rent and shared the water desig-
nated for the existing trees on the condition that he performs the necessary
work and he took over supervision of the orchard and then neglected the
land and failed to water the orchard when needed and the trees withered
and died as a result, and most of them were cut down and ruined for his
failure to attend to them. Is he responsible for the damage and the bad con-
dition of the trees and what does the sharīʿa say about that. We beseech you
to issue a fatwā on the matter, may God reward you . . .
Response: He is responsible and we are right in decreeing so.74
The muftī’s concern for the proper cultivation of waqf lands and the trees
on these lands was in harmony with the Ottoman state’s interest in ensur-
ing productivity. However, while the state’s predominant focus was on
ensuring the overall security of agricultural lands (particularly state and
waqf lands), muftīs sought to secure the productivity of arable lands by
insisting on the proper implementation and application of day to day
agricultural functions and duties. Although the state certainly realized
that lapses in cultivation or destructive cultivation practices jeopardized
revenues, it was local muftīs who established a legal framework to hinder
such actions. Thus, those who impeded the cultivation of crops and trees
could face several repercussions including: payment of a fine, loss of their
sharecropping rights, and/or loss of the right to bequeath their possession
rights to family and kin.
As illustrated in the above fatwā, it was not uncommon for cultiva-
tors to believe they had the right to make claims to the land, even when
they had been absent from the land for a significant period of time. Ten-
ants and/or sharecroppers felt an important connection to the lands they
worked or had worked, regardless of whether or not they were ‘owners’

74 Fatawa bani al-ʿImadi, Zahiriya 5864, fol. 290. There is another fatwā which addresses
the responsibilities of the cultivator to prevent the growth of weeds (fol. 228).
tenant and sharecropper obligations on state and waqf lands 89

in the strict sense of the word. Al-Ramlī comments on the strong sense of
entitlement which cultivators felt they had in deciding who should con-
trol the fate of waqf lands:
Question: There is a house designated as waqf along with a little garden that
is attached to it. A man rented the garden for a long period of time, most of
which has already elapsed. The house and the garden were [subsequently]
exchanged in a legal manner for another house and garden in a different
town . . . The lessee of the garden made a claim alleging that the person who
replaced the house and garden had no right to make the exchange. Is his
allegation that the exchange is not correct a valid one, even though he is not
the supervisor of the waqf, and is it a condition that the exchanged property
and the property with which it is exchanged should be in one town?
Response: His claim is invalid . . . because he himself has no right to the
house and is not entitled to any benefit from it. Rather, his rights are lim-
ited to the lease of the usufruct of the garden. . . . Even if the house and
garden were both included in his lease, he does not have the right to annul
the sale and/or exchange . . . The rights of the lessee [to the garden] are not
undermined by such a sale, but the lessee is not entitled to void the sale.
Even if we assumed that he does have the right to annul the sale, although
this is not in line with [legal] tradition, then this right would only apply to
the garden and nothing else—annulling the garden sale would not annul the
house sale . . . the lessee has no right to the house and has no benefit that he
can claim, and as such he does not qualify as an adversary who can claim
that the exchange of the house is null and void, and that is as clear as the
sun in the sky. . . . As for the rule about the long-term lease of waqf proper-
ties . . ., the author of Jawahīr al-Fatāwā, in chapter one of the book of leas-
ing, refers to a man who leased a waqf estate for thirty years and wrote in
the deed that he leased the property with thirty contracts, each following
the other; the scholar declares this arrangement invalid . . . there are fatāwā
in this regard [issued] for fear that claims of ownership of the waqf property
would be made, especially in these bad times. . . . As for the condition that
the exchange should be in the same town, no one has said anything about
it, and what . . . al-Khassāf and Qāḍīkhān and others have said indicates that
it is permissible in any town, given that the crop would be more abundant
and least spoiled. . . . if the owned property is better than the waqf property,
then an exchange is permissible, and this would be the case even if the
location is different.75
This fatwā illustrates several issues. To begin with, the muftī opposes the
cultivator’s attempts to transgress upon a right (specifically, the right of
istibdāl or exchange) which, as explained in chapter one, belongs to the
founder of the waqf. Al-Ramlī insists, in somewhat of a reprimanding

75 Ramlī, Al-Fatawa al-khayriya, 1:186.

90 chapter two

tone, that the lessee’s rights are limited to the usufruct of the garden. Fur-
thermore, the fatwā raises the issue of the long-term lease of waqf lands.
According to the Ḥanafī school of jurisprudence, waqf land, like mīrī land
and land belonging to orphan minors, could not be rented for more than
three years. By limiting the contract period to three years, Ḥanafī jurists
sought to ensure that the rent would be reassessed shortly before or after
the contract’s expiration, and, if necessary, readjusted in favor of the waqf.
During the second half of the sixteenth century, such readjustments were
needed due to the akçe’s (Ottoman silver currency) declining value as a
result of the influx of bullion from the Americas.76 The position of the
Ḥanafī school on long-term leases was tied to it being the official school
of law under the Ottomans. The Ottoman state, as discussed in chapter
one, benefitted financially from waqf foundations, whether in the form of
taxes and/or dues imposed, or simply in terms of the support which waqf
revenues provided to such public institutions as schools, hospitals, etc.
Although during the sixteenth century Ḥanafī law was strictly applied
in the leasing of waqf lands, by the seventeenth and eighteenth centu-
ries, there were leases which extended over a period of forty ʿaqds (each
ʿaqd lasting for three years).77 As explained earlier, the legal process by
which this was done was for the lessee to avoid renting waqf land through
the Ḥanafī judge, but rather to do it through the Shāfiʿī or even Ḥanbalī
judge—each of whom was more open to authorizing long-term leases. It
was not unusual, however, for a Ḥanafī muftī (and judge) to validate a long
term lease already approved by a Shāfiʿī or Ḥanbalī judge. For example, in
a fatwā pertaining to a long-term lease of waqf land based on fair rent that
was first approved by a Shāfiʿī judge and then a Ḥanafī judge, al-Nābulusī
upholds the rulings of both judges and the deeds drafted by each (specifi-
cally pointing out that the Shāfiʿī judge’s ruling is irrevocable as it satisfies
“all stipulated conditions” and is in agreement with the rules of his school
of law).78 On the flip side, the law prohibited waqf overseers from revoking
valid long-term leases and evicting tenants before the expiration of such
leases, particularly when contracts were based on fair rent.79 The issue of
long-term leases illustrates the sort of exchange/collaboration that existed
between the various schools of law during the period at hand. This was
fostered in large part by the early training jurists had with scholars from

76 Rafeq, “Making a Living,” 117.

77 Ibid.
78 Fatawa al-Nabulusi, Zahiriya 2684, fol. 178b. For similar fatāwā, see fols. 179a, 179b.
79 Ibid., fol. 179b.
tenant and sharecropper obligations on state and waqf lands 91

other madhabs (as was the case with al-Nābulusī). Thus, jurists were often
well-versed in the legal corpus of other schools of law and drew on this
knowledge when needed.
By the early Ottoman period, Ottoman jurists held that a contract of
tenancy on waqf lands that was drawn up with a ‘contractually fixed rent’
(musammā) which fell significantly below the ‘fair rent’ (ujrat al-mithl/
ajr al-mithl) was a voidable contract.80 Fatāwā, for example, issued by
al-faqīh Muḥibb al-dīn al-Ḥanafī and al-faqīh ʿAbd al-Raḥmān during the
seventeenth century specify that the mutawallī/naẓīr was legally justified
in raising the rent during the course of a lease contract or after a particu-
lar lease contract had expired if it was below the fair rent. Consider the
following fatwā from Muḥibb al-dīn:
Question: What do you say, may God bless you, about an orchard that con-
sists of land and plants belonging to a waqf which the supervisor (nāẓir)
leased to man for a given time and money/fee (ujra maʾlūma), and during
the course of the contract there was an increase in the rent without con-
sent [of the leaseholder] for the remainder of the life of the lease . . . Can the
supervisor lease it for the higher rate and break the initial lease agreement
or not? . . .
Response: Yes, the supervisor can lease the land at the increased rate if the
initial rent (ujrat al-ūla) was not based on the fair rent (ujrat al-mithl). . . .81
This development, according to Johansen, contradicted trends in pre-
classical and classical Ḥanafī law. While the contractually fixed rent rep-
resented the agreed upon rent by those involved in the contract, the fair
rent (developed by jurists themselves) was determined by market condi-
tions. Beginning in the ninth century, jurists tried to ensure that the fair
rent was implemented when possible, particularly in the case of state and
waqf lands, which made up the majority of leased arable lands.82
The increasing importance of the fair rent was particularly evident in
laws relating to the unauthorized use of arable lands. As Johansen eluci-
dates, in pre-classical and classical Ḥanafī law, the unauthorized use of
arable lands did not require the payment of rent. Those who made unau-
thorized use of landed property were only required to cease cultivation on
the land (in effect returning what they had wrongfully taken) and uproot
any crops or trees planted. If the tenant’s cultivation of the land caused

80 Johansen, Land Tax and Rent, 111.

81 Fatawa bani al-ʿImadi, Zahiriya 5864, fol. 279. This is reiterated in two other fatāwā
issued by Muḥibb al-dīn, fols. 233b, 278.
82 Johansen, Land Tax and Rent, 33–34.
92 chapter two

any harm to the property or a decline in its value, he/she was obliged to
provide the proprietor with the appropriate compensation.83 According
to Johansen, the cultivator in such cases was not liable for paying rent
because “[w]ithout a contract of tenancy or sharecropping the use [did]
not represent a commodity value and [was] not warranted.”84
However, from the tenth to the twelfth century, Ḥanafī authorities in
Central Asia increasingly treated the payment of compensation as if it
were a kind of rent and thus emphasized that the non-contractual use of
arable lands did require the cultivator to pay the fair rent. The obligation
to pay rent now became a way to ensure that certain arable lands gained
profit from such unauthorized exploitation. In a bid to demarcate those
properties which were rent-yielding properties, jurists during the early
Ottoman period assigned a special legal status to certain properties by
referring to them as muʿadd ʿli-l-istighlāl, or ‘property reserved for profit-
able use.’ Leased arable lands fell into this category. Thus, rent-yielding
properties included waqf lands, orphan lands, private ‘property reserved
for profitable use,’ and state lands. All of these lands came to be shielded
from unauthorized use. The significance given to leased waqf properties
in this hierarchy of lands so to speak is best summarized by Johansen:
“Among the three forms of rent-yielding property that are not state prop-
erty, the waqf clearly enjoys a privileged status since it is considered to be
more dependent on ‘profitable use’ than private property.”85 Ultimately,
the regulations established by Ḥanafī jurists to govern the cultivation and
use of waqf lands clearly worked in the state’s interest by ensuring that the
income arising from such properties was properly monitored.
Seventeenth and eighteenth-century fatāwā from Ottoman Syria in fact
indicate that any person making unauthorized use of property intended
for lease was liable to pay the fair rent, even retroactively in some
cases.86 Aside from the obligation to pay fair rent in cases of unauthorized
use, lease contracts based on the payment of fair rent were treated as the
established norm by several muftīs of the period.87

83 Ibid., 37.
84 Ibid., 38.
85 Ibid., 107–108.
86 Fatawa bani al-ʿImadi, Zahiriya 5864, fol. 233b. Similar fatāwā are attributed to the
seventeenth century jurist Ismaʿīl ibn al-Nābulusī al-Shafiʿī (d. AH 1063/AD 1653), fol. 67
and ʿAbd al-Raḥmān al-ʿImādī, fols. 132, 211. See also Majmuʾ fatawi al-Muradiya, Zahiriya
2641, fol. 397.
87 Fatawa bani al-ʿImadi, Zahiriya 5864, fol. 64. In this fatwā, the muftī (faqīh Ismāʿīl
ibn al-Nābulusī al-Shafiʿī) clearly states that a waqf administrator is legally obliged to enter
tenant and sharecropper obligations on state and waqf lands 93

Even in the absence of a lease contract, a cultivator working a waqf

or state land was legally required to pay fair rent. Al-Nābulusī rules on
a case involving peasants who pay a waqf a certain amount each year
since a very long time. The overseer confronts them with the demand that
they must now pay an amount equivalent to the fair rent (being that the
original amount paid by the cultivators was less). The cultivators refuse
on the premise that this conflicts with custom and their usual payment.
According to al-Nābulusī, the peasants are not under any obligation to
pay more if it is determined that the amount they pay is equivalent to the
fair rent. If their payment is less (and this is determined based on proof),
however, then they are required to adjust the amount they pay so that it
is equal to the fair rent. If they refuse to do so, they should be ordered to
“release their hands from the share of the said endowment, and . . . turn
it over to the . . . overseer.”88 Al-Nābulusī is even stricter in cases when
a cultivator(s) works a waqf land for years without a lease contract or
permission from the waqf overseer. In such a situation, the cultivator(s)
is legally obliged to pay the fair rent for the entire period during which
he/she/they worked the property—thus, the application of fair rent was
retroactive.89
For the most part, muftīs of the period upheld the fair rent require-
ment. Leases based on fair rent, however, were not the only or even most
preferred arrangement for all jurists. Although al-Ramlī supports the pay-
ment of fair rent,90 particularly when it was in the benefit of the waqf, he
does not necessarily privilege this type of agreement over others. Consider
the following fatwā:
Question: There is a land in someone’s exclusive possession whose trees
have perished and whose kirdār is gone and the person who has sole pos-
session wants the land to remain in his possession with the same ground
rent, which is not based on the fair rent. Long ago before the monopoly over
the land was in place [the waqf ] had a sharecropping agreement with the
cultivators in which the latter were paid one-fourth of the crop yield. Is the
cultivator entitled to maintain possession of the land with the same ground

into lease contracts based on the fair rent otherwise the contract will be null and void. In
such cases, it was not uncommon for a lease to be redrawn and based on the fair rent.
According to Ḥusayn al-Murādī and ʿAlī al-Murādī, upon the expiration of a lease contract,
the overseer was entitled to seize the land from a lessee who refused to lease the land for a
fair rent (Majmuʾ fatawi al-Muradiya, Zahiriya 2640, fol. 70; and mss. 2641, fol. 377).
88 Fatawa al-Nabulusi, Zahiriya 2684, fol. 108b.
89 Ibid., fol. 109a.
90 Ramlī, Al-Fatawa al-khayriya, 1:162.
94 chapter two

rent or must he obtain the permission of the nāẓir? Should the nāẓir, acting
in the interest of the waqf, enforce payment along the lines of the pre-existing
sharecropping arrangement or should he maintain that the rent be paid in
dirāhum and dananīr or some other form of payment which is in the inter-
est of the waqf ?
Response:. . . . The nāẓir should act in a way which is beneficial to the inter-
ests of the waqf, whether this be instituting the fair rent or having the waqf
paid in shares [according to a sharecropping agreement]. The ground rent
should not remain in the hands of the possessor under the conditions he
wants. [The ʿulamāʾ ] have elaborated that the interests of the waqf should
take priority and it is necessary for the nāẓir to do what is in the benefit of
the waqf. . . .91
While the interests of the waqf outweighed the demands of the cultiva-
tor (particularly one who no longer holds a kirdār, i.e. trees or structures
added to the land and owned by the cultivator), al-Ramlī nevertheless
recognizes the muzāraʿa contract and the payment of fair rent as equally
valid arrangements. It was the nāẓir’s or mutawallī’s responsibility, how-
ever, to authorize and decide which arrangement would prevail.
Further elaborating on the issue of fair rent, al-Ramlī argues that once
a lease contract expires, the lessee can remain on the land by paying the
fair rent only if his/her usufruct rights have not been lost. This ruling was
issued on a case concerning a man who rented a waqf land for building
and cultivating.92 The man in question built buildings on the land whose
worth came to be less than [the worth] of the land, and it was decided by
the waqf overseer that he should pay the fair rent. The question posed to
al-Ramlī was: if the period of the lease expired or the lessee died and the
usufruct rights of his heirs declined, does payment of the fair rent hold
or should this arrangement be abrogated as long as there was no harm
in this to the waqf ? According to al-Ramlī, if the usufruct rights of the
cultivator had not been lost after the expiration of the lease contract, then
the latter could remain on the land by paying the fair rent, if there was
no harm in this to the waqf.93 Al-Ramlī maintains that a tenant on waqf
property whose lease expired and whose usufruct rights had declined may
still remain on the land and undertake cultivation if the value of his cul-
tivation exceeded the value of the land (the burden was on the tenant

91 Ibid., 1:148.
92 Ibid., 1:158.
93 Ibid., 1:160. Of course if the tenant fails to pay the fair rent, then he and his cultiva-
tion must be removed from the land and the land must be delivered to the mutawallī
unoccupied and vacant.
tenant and sharecropper obligations on state and waqf lands 95

to prove the value of the crop in relation to the land). Thus, the hold
that a particular cultivator had over the land was strengthened by his/her
proper and efficient cultivation of the land. Al-Ramlī recognizes that it is
usually in the benefit of the waqf to allow the current tenant to remain
on the land and continue its proper cultivation uninterrupted. Such rul-
ings challenged the stated position in Ḥanafī legal doctrine that once the
lease expired, the tenant, along with his buildings and cultivation, should
be removed from the land and the latter handed over vacant. This issue
is examined in further detail in chapter three when the significance of
kirdār is discussed.
There were some cases though which required that a cultivator con-
tinue paying fair rent even after his/her lease expired. If the plants sowed
by a legitimate lessee did not reach maturity before the end of his/her
lease term, then he/she had to continue paying fair rent until the plants
come to fruition, at which point the lessee should turn over the land (void
of any cultivation) to the responsible official (such as the waqf overseer in
the case of endowment properties).94
Regardless of the kirdār they establish or their usufruct rights to the
land, tenant cultivators lost all rights if they refrained from paying rent.
Al-Nābulusī makes this point clear in a case involving peasants who
stopped paying rent on the premise that they owned plants and trees on
the land and therefore could not be removed from the waqf even if they
stopped paying rent. According to al-Nābulusī, should peasants not pay
what they owe to the waqf, they may be ordered to uproot their plants and
trees and turn over the vacant land to the mutawallī who can then lease
the land to someone else. If the uprooting of plants and trees is harmful to
the waqf, then the waqf overseer is entitled to use waqf funds to subsume
ownership of the kirdār.95
On the issue of whether usufruct rights could be transferred after the
death of a particular leaseholder, Al-Ramlī elaborates very clearly the con-
ditions under which this could not occur:
Question: There is a waqf land on which cultivation rights belong to the
mutawallī. He then made it the property of his wife by renting the land to
her so she could maintain cultivation rights over the land. The mutawallī
died and the majority of the trees on the land perished. His wife then died
and she had a daughter whose son planted the land without the permission

94 Fatawa al-Nabulusi, Zahiriya 2684, fol. 179a.

95 Ibid., fol. 108b. For a similar fatwā see Majmuʾ fatawi al-Muradiya, Zahiriya 2641,
fol. 413.
96 chapter two

of the [current] mutawallī. [The son cultivated the land] on the basis that
his mother has the right of cultivation. . . . Is his claim valid and if not will
the mother and son have to pay by removing any cultivation and trees on
the land?
Response: It is necessary for the trees and cultivation to be removed and
the land should be handed over to the mutawallī unoccupied and empty of
all cultivation. . . . with the death of the lessee, the ijāra contract becomes
null and void and it is necessary for the land to be returned as it was to the
[mutawallī].96
Although it was quite common for usufruct rights to be passed on to fam-
ily members, al-Ramlī stipulates that, where there was a lease involved,
the assumption of cultivation rights by family members hinged on two
conditions: the approval of the mutawallī and the maintenance of con-
tinuous cultivation on the land. In this case, neither of these conditions
were met and, therefore, the nullification of the lease contract after the
lessee’s death necessitated turning over the land unoccupied and vacant.
Generally speaking, the muftīs were usually not in favor of issuing such
a ruling because they realized that the uprooting of trees and crops and
the tearing down of buildings could be harmful to the interests of the
waqf. Only in cases when a cultivator outrightly defies the law or abuses
his/her privileges and the well being of the land did they resort to such
a ruling.97
Some muftīs, however, provide a less flexible interpretation of the fam-
ily’s right to inherit usufruct rights from a leaseholder. Muḥibb al-dīn
al-Ḥanafī, for example, rules that the brother of a particular leaseholder
who assumed the cultivation of a waqf land for five years after the expira-
tion of the lease had to relinquish control of the land to the waqf admin-
istrator.98 Although the brother argued that his rights to the land should
not be questioned because he planted and tilled the land according to
customary law (al-ʿurf ), the muftī rules that the brother should hand over
the land to the administrator because there was no valid contract on the
land between him and the waqf in question. It appears here that even a
payment of fair rent by the brother would not strengthen his rights to the
land. Interestingly, the fatwā insinuates that had there been a muzāraʿa
contract on the land (either between the previous lessee and the waqf or
the brother and the waqf ), the brother’s usufruct rights on the land would

96 Ramlī, Al-Fatawa al-khayriya, 1:160.

97 Majmuʾ fatawi al-Muradiya, Zahiriya 2642, fol. 147.
98 Fatawa bani al-ʿImadi, Zahiriya 5864, fol. 116.
tenant and sharecropper obligations on state and waqf lands 97

have been strengthened. As will be illustrated in the following chapter,

there were various conditions that allowed peasant cultivators with
muzāraʿa contracts to legally secure their possession (not ownership) of
a particular state or waqf land for generations. Thus, the existence of a
contractual arrangement was given greater priority here than even the
proper and consistent cultivation of the land.

The Payment of Taxes

Sharecroppers and tenants were held responsible not only for the pay-
ment of fair rent (where appropriate), but also for the payment of various
dues and taxes. The importance that the Ottoman state itself placed on
agricultural production was largely due to its desire to ensure the efficient
collection of taxes. As explained in chapter one, the Ottomans during the
mid sixteenth century revamped landholding and taxation policies. The
reforms initiated by Abū al-Suʿūd were meant to secure revenues accruing
to the public treasury. Thus, his policies were centered on ensuring the
status of mīrī lands and imposing taxes on existing waqfs in an attempt to
regain some revenues to the treasury from these lands whose yields sup-
ported private endowments.
The reforms initiated by the state in regard to mīrī lands were moti-
vated by a desire to regulate the role of officials assigned to such lands.
Ultimately, the central authority was consistently faced with the prob-
lem of provincial officials appropriating revenues legally belonging to the
state. In a bid to protect its own interests and those of the reʿāyā respon-
sible for maintaining production levels, the central authority attempted
to impose certain controls over these office holders. Matters were further
complicated by the fact that the fiscal system itself was quite complex—
there existed numerous taxes and fees, many of which varied according
to the specific locality at hand. Thus, local powers were often times at
an advantage in manipulating the fiscal structures and policies of their
districts.99
The main taxes were made up of exactions imposed on produce and
transport; the type of productive activity pursued (for example, agricul-
tural) largely shaped how taxes were assessed and collected. Aside from
the taxes imposed on produce, there were also three other types of fees/

99 Douwes, Ottomans in Syria, 125.

98 chapter two

taxes levied, including: “fees collected in order to finance specific official

duties and obligations; secondly, impositions related to military efforts
and natural calamities; and thirdly, the capitation tax resting on non-
Muslims.”100
In the legal literature relating to tenants and sharecroppers in Ottoman
Syria, the most common taxes discussed are: the qasr al-faddān (or the
çift bozan resmi, a tax used to undermine the right of voluntary desertion
of agricultural lands; it could be directly imposed or even collected retro-
actively), kharāj al-muqāsama, and kharāj al-muwazzaf (the former also
referred to as qism or ʿushr, and the latter as māl faddān). Distinguishing
between villages according to the type of tax collected from them (i.e. qism
or māl faddān) was a practice dating back to pre-Islamic times. According
to both Bernard Lewis and Douwes, in parts of Syria around the sixteenth
century, the qism was still referred to by its Greek name dimus (from the
Greek demosion).101 Douwes also points out that it was not uncommon
for certain villages to be subject to both the qism and the māl faddān.102
There is also mention in the fatāwā of a head tax(es) (gharamāt al-anfus
alatī tawazzuʾ ʿala al-ru-ūs) applicable to residents (excluding women and
children) residing within particular villages; it is not clear which villages
were subject to this, however. This tax was often unjustly imposed on
non-villagers—thus it is not surprising that they expressed their opposi-
tion to it.103
Such taxes were usually levied on both state and waqf lands. Never-
theless, religious considerations sometimes resulted in fiscal privileges for
waqfs and religious officials. Thus, waqfs, which were central for the main-
tenance of mosques and other public institutions, often enjoyed lower

100 Ibid. The research done on taxation in Ottoman Syria (mostly focusing on Pales-
tine) includes: Singer, Palestinian Peasants; Robert Mantran and Jean Sauvaget, Règlements
fiscaux Ottomans: les provinces Syriennes (Beirut: Institut français de Damas, 1951); Heyd,
Ottoman Documents on Palestine; Lewis, “Ottoman Land Tenure”; Cohen and Lewis, Popu-
lation and Revenue; Wolf Dieter Hutteroth and Kamal ʿAbdulfattah, Historical Geography
of Palestine, Transjordan and Southern Syria in the late Sixteenth Century (Erlangen: Fronk-
ishe Geographische Ges.; Erlangen: Palm und Enke [in Komm], 1977); and Linda Darling,
Revenue Raising and Legitimacy: Tax Collection and Finance Administration in the Ottoman
Empire, 1560–1660 (Nashville: Vanderbilt University Press, 2004).
101 Douwes, Ottomans in Syria, 136 and Lewis, “Ottoman Land Tenure,” 120.
102 Douwes, Ottomans in Syria, 141.
103 Fatawa bani al-ʿImadi, Zahiriya 5864, fol. 197a. The muftī in this case (Aḥmad al-Muftī
or Aḥmad ibn Muḥammad al-Ḥamnadarī al-Dimashqī AH 1024–1105/AD 1615–94) rules
that the tax should only be levied from village residents, excluding women and children.
tenant and sharecropper obligations on state and waqf lands 99

taxes and certain exemptions, as did many members of the ʿulamāʾ class
who held landed property.104
Generally speaking, legal thinkers were most concerned to delineate
the conditions under which the payment of certain taxes was just or
unjust. For example, muftīs were often critical of the qasr al-faddān tax
and its role in inhibiting freedom of movement, an issue which is taken up
in chapter four. Al-Ramlī, moreover, sought to protect the rights of peas-
ants against abusive forms of taxation by clearly differentiating between
kharāj al-muqāsama and kharāj al-muwazzaf. Thus, when asked if a land
designated to pay the kharāj al-muqāsama on a particular crop (not
named) must pay the latter tax if wheat and barley were grown instead
of the specified crop (which could not be planted due to unfavorable soil
conditions), al-Ramlī replies that the tax should not be paid “because the
agreed upon conditions were not met and it is unlawful to change kharāj
al-muqāsama into kharāj al-muwazzaf.”105 In cases when the kharāj al-
muwazzaf had to be paid by a group of cultivators, the amount due from
each had to be assessed according to the area of land apportioned to each
(for usufruct).106 There is also evidence in the fatwā literature that the
type of tax collected on a particular land depended on its water source.
For example, a fatwā issued by Muḥammad al-Imādī details the case of
a plantation under the mashadd maska of Zayd which is part of a waqf
property and runs in an ʿushrīya village. Because the plantation has no
watering rights from the water source of the latter village but draws its
water from a ‘kharājīya’ village (one which pays the kharāj al-muwazzaf ),
the muftī rules that the mutakallim has no right to impose the ʿushr on the
plantation. According to al-ʿImādī, “should the ‘ushrīya’ land that has no
water be watered from the water source of a ‘kharājīya’ land, then such
an ‘ushrīya’ land reverts to a ‘kharājīya’ land, subject to the nature of the
watering source, since the water is the cause of growth.”107
In the case of lands belonging to bayt al-māl, the ʿushr or kharāj
al-muqāsama had to be exacted from the leaseholder or sharecropper.108
Regarding the payment of ʿushr on waqf lands, however, jurists high-
lighted that it was the responsibility of the lessor and not the lessee or

104 Douwes, Ottomans in Syria, 144.

105 Ramlī, Al-Fatawa al-khayriya, 1:88–89.
106 Al-Nur al-mubin fi fatawi al-ʿImadiyin, Zahiriya 7508, fol. 70b.
107 Ibid., fol. 73a.
108 Al-Nur al-badi fi ahkam al-aradi, Zahiriya 4400, fol. 149a.
100 chapter two

tenant cultivator to pay this tax.109 Thus, referring to waqf properties, ʿAlī
al-ʿImādī explains that the ʿushr due to the state had to be deducted from
the total revenue of the waqf and not the share of the lessee.110 State offi-
cials, therefore, had to collect the tax directly from overseers representing
the endowment bodies and not from the cultivators.111 The fatāwā docu-
ment cases of lessees paying the ʿushr on behalf of the waqf and then
deducting this amount from the rent owed—a legally acceptable arrange-
ment as long as both sides mutually agreed.112 The eighteenth-century
muftī of Damascus ʿAlī al-Murādī upholds that the ʿushr should not be
more than one-tenth of agricultural production, the amount stipulated
in classic Islamic law. When local officials tried to collect more than one-
tenth, muftīs ruled against them.113
In situations when there was no confusion or discrepancy in the type
of tax to be paid, cultivators were usually required to pay the tax or taxes
without delay or objection. There is some evidence in the fatāwā, how-
ever, that jurists took the socio-economic status of cultivators into con-
sideration when recommending how dues should be distributed amongst
villagers.114 Delays in the payment of taxes were also not unusual and
objections did surface.115 Consider the following fatwā issued by ʿAbd
al-Raḥmān al-ʿImādī:
Question: To the Shaykh al-Islām, may God bless him, there is a waqf farm
(mazraʿa) that is part of a village and the farm has a certain name and
boundaries specified in the waqf deed (kitāb al-waqf ) and also registered
in the sultan’s records (al-daftār al-sulṭānī), and the residents of the village
are responsible for paying a certain amount of money (mablagh mu ʿayyan)
every year. The residents of the village now refuse to pay what they owe to
the waqf, alleging that the farm carries a name different from that which is
registered in the waqf deed and the sultan’s records. Should the waqf deed
and the sultan’s records be followed and the villagers be forced to pay what

109 Fatawa al-Nabulusi, Zahiriya 2684, fol. 75; Bab mashadd al-maska, Zahiriya 5677,
fol. 15a.
110 Al-Nur al-mubin fi fatawi al-ʿImadiyin, Zahiriya 7508, fols. 68a–68b.
111 Ibid., fol. 72b. For a similar fatwā, see fol. 73a. According to the same muftī (Muḥammad
al-ʿImādī), when a waqf property did not have a history of paying the ʿushr, then the state
did not have the right to begin suddenly levying the tax (see fols. 72b–73a).
112 Ibid., fol. 69a.
113 Majmuʾ fatawi al-Muradiya, Zahiriya 2639, fols. 395, 396, 398. Both ʿAlī al-Murādī
and Muḥammad al-ʿImādī before him ruled against those officials trying to collect more
than one-tenth.
114 Bab mashadd al-maska, Zahiriya 5677, fol. 10b.
115 Fatawa bani al-ʿImadi, Zahiriya 5864, fol. 16.
tenant and sharecropper obligations on state and waqf lands 101

they owe for the farm in question to the waqf, or should their allegations
be considered?
Response: The waqf deed and the sultan’s records should be followed and
the villagers should be made to pay what they owe for the farm in question
to the waqf and their allegations should not be considered.116
The cultivators make reference to “kitāb al-waqf ” and “al-daftar al- sulṭānī”
in justifying why they should not be obliged to pay the necessary dues,
perhaps indicating an awareness that written evidence holds sway in the
legal arena. Nevertheless, the muftī finds their line of reasoning uncon-
vincing and rules that the villagers must pay what they owe for the waqf
farm in question.
The following fatwā from al-Ramlī provides insight into the tax obliga-
tions of tenant cultivators in the face of natural disasters:
Question: On a land designated as kharāj paying land, a flood covered the
cultivable area with gravel which, although could be removed, was not
removed by the cultivators on the land. [Thus], they did not plant/cultivate
the land. Are they required to pay the tax?
Response: Yes, they should pay, and it is not justifiable that they did not
cultivate [the land] since the gravel could have been removed. According to
the law, if the land has some weeds, wild trees, or gravel that can removed
or dealt with, allowing the land to be properly planted, then the persons on
the land must pay the tax even if they did not fix the problem.117
This fatwā delineates the sorts of responsibilities which farmers had in
cultivating the land in a proper and efficient manner. Thus, although a
natural disaster had wrought damage on the cultivable land, the farmer
was not exempt from paying the kharāj because the damage from the
disaster could be remedied through human effort. Similarly, a tenant was
responsible for paying the rent when crops were lost due to his/her care-
lessness or neglect.118 In those natural disasters, however, which destroyed
crop yields and in which the damage was beyond the control of the cul-
tivator (such as when crops were destroyed by drought), the farmer was
exempt from paying the necessary taxes.119 Indeed, there was often a sig-
nificant discrepancy between the estimated tax obligations of the peas-

116 Ibid., fol. 204.

117 Ramlī, Al-Fatawa al-khayriya, 1:92. Al-Ramlī reiterates such responsibilities in
another fatwā (2:155).
118 Majmuʾ fatawi al-Muradiya, Zahiriya 2641, fol. 389.
119 Ramlī, Al-Fatawa al-khayriya, 1:88–89; and Majmuʾ fatawi al-Muradiya, Zahiriya
2639, fol. 401.
102 chapter two

antry laid out in the kanunname (which was based on estimates of average
crop yields) and the actual revenues collected by provincial officials. The
latter depended upon the quality and quantity of a particular year’s crop
yield. As Amy Singer points out, however, this did not mean that officials
did not at times impose taxes on unproductive fields or orchards. Peas-
ants, however, were not passive bystanders in this process. They not only
managed to appropriate part of the total crop before it was distributed to
those with an entitled share, but they actively opposed the efforts of abu-
sive officials by going to court, submitting petitions to the state authority,
and appealing to various muftīs.120
Just as muftīs expected peasants to fulfill their tax obligations, they also
chided officials who overstepped their tax authority. Ḥāmid al-ʿImādī, for
example, is critical of officials who attempt to abuse their tax collecting
obligations. When asked about a village chief (mutakallim) who tried to
collect a share of the crop when he was only commissioned to collect the
kharāj al-muwazzaf, al-ʿImādī insists that he was only sanctioned to col-
lect the designated taxes and nothing more.121
The collection of certain dues on waqf lands was of particular concern
to muftīs as illustrated in the following fatwā:
Question: There is a village designated as waqf property for the benefit of
two charity groups and each half has its own supervisor (nāẓir) who speaks
on its behalf. One of them has olive trees on the land and owes money
(māl maʾlūm) to the waqf in return for utilizing the land. An administrative
official (ḥākim al-ʿurf ), however, transgressed upon the village and seized
control of it for two years and collected its crop and did not prevent the
owner of the trees (sāḥib al-shajr) from reaping his share. Is he [sāhib al-
shajr] obligated or not obligated to pay the aforementioned amount which
he owes for the olives to the waqf and should he be asked [to pay] this
aforementioned amount?
Response: There is no excuse for the man utilizing the land from paying his
dues to the waqf and God knows best.122
In spite of the actions of the corrupt authority in this case, al-Ramlī finds
no justification for the supervisor not to pay his dues to the waqf. This is
largely due to the fact that the owner of the trees continued to reap ben-
efit from the olive trees during the two years that this official controlled
the land. The literature indicates that it was not uncommon for public

120 Singer, Palestinian Peasants, 46–112.

121 Ibn ʿĀbidīn, Al-ʿUqud, 1:182.
122 Ramlī, Al-Fatawa al-khayriya, 1:197.
tenant and sharecropper obligations on state and waqf lands 103

officials to confiscate waqf lands or seize their revenues, as in this case.

Such officials also established waqfs on lands that belonged to someone
else, especially the state.123 Al-Ramlī, although often critical of such trans-
gressions on the part of officials, refrains from commenting here on the
actions of the ḥākim al-ʿurf. His primary concern was to ensure that the
financial interests of the waqf were not threatened.

Conclusion

Islamic legal thinkers of the seventeenth and eighteenth centuries for-

mulated a comprehensive and consistent legal framework outlining the
obligations of tenants and sharecroppers on state and waqf lands. The
fatāwā and commentaries from the period indicate that cultivators were
bound to the land in one of two ways—through muzāraʿa contracts or
lease (ijāra) contracts. The distinction between sharecropping and ijāra
was not always clear or straightforward in the legal discourse of the time.
Elements of both could and did overlap. Legal thinkers made reference to
sharecroppers paying rent and contributing various elements of produc-
tion (i.e. seed, labor, land, or ploughing stock) to the cultivation process.
Regardless of which type of contract they held, however, tenants/share-
croppers on state and waqf lands only had rights of taṣarruf over the land;
they could not legally sell, own or divide the land and, in most cases, they
could not sell or lease their usufruct rights to another without the per-
mission of the land-overseer. Nevertheless, cultivators often treated such
properties as their own, and thus regularly engaged in the selling of state
and waqf lands.
Legal thinkers shared the Ottoman state’s concern for the proper use
and efficient cultivation of state and waqf lands. While the state was more
concerned with issues related to security and safety, however, local muftīs
focused more on such problems as desertion of the land and the ramifi-
cations of this on cultivation and upkeep of properties. In their bid to
protect the landlord’s interests, Syrian muftīs and scholars were most con-
cerned to delineate the distinction between usufruct rights and raqaba
rights (a task not always easy to accomplish), protect the status of state
and waqf representatives, and ensure the payment of legally sound taxes
and fair rent by the lessee. They sought to ensure efficient production

123 Dallal, “Islamic Institution of Waqf,” 31 and Mandaville, “Usurious Piety,” 302.
104 chapter two

by urging for the uninterrupted cultivation of agricultural lands, and by

generally protecting waqf and state lands from acts considered harmful to
their financial/economic interests.
Similar to peasant cultivators on state lands, sharecroppers and tenants
on waqf lands had certain legal obligations towards the waqf overseer. As
the representative of the waqf, the latter was entitled to collect a portion
of the crop yields on behalf of the waqf. In addition, he/she could remove
tenants/sharecroppers from the land if the latter cultivated the land with-
out his/her permission, failed to maintain the proper cultivation of the
land, or endangered the interests of the waqf in any way.
When involved in a sharecropping agreement, the sharecropper’s
usufruct rights and share in the crop were clearly circumscribed by certain
factors—the factors of production which the sharecropper contributed,
the validity of the sharecropping contract itself, and the sharecropper’s
involvement in any other contracts simultaneously (ex. musāqāt). Those
sharecroppers who contributed seed to the cultivation process were in
an advantageous position versus those who only contributed livestock
and/or labor. Generally speaking, sharecroppers were entitled to a share
of the crop if engaged in a valid contract and if the crop was realized
by the period stipulated in the contract. When such conditions were not
met, they were entitled only to a wage for the labor performed. Either
way, legal thinkers upheld the right of the tenant cultivator to receive
due payment for his labor and/or other contribution(s) to the cultivation
process.
Although the existing literature on sharecropping makes reference to
the fact that sharecroppers in different parts of the world were often bound
to render the landlord various extra obligations, Ḥanafī legal sources from
seventeenth and eighteenth century Syria make no reference to such extra
dues or services. This certainly does not mean that such services and/or
dues were not rendered or paid. Rather, it might be an indication that
such obligations were not particularly onerous.
With the increasing commercialization of agricultural relations by the
seventeenth century, the importance of the seed in the sharecropping
contract increased, and lease contracts based on the payment of fair rent
became more prevalent. Indeed, the waqf overseer had the legal preroga-
tive to implement or raise the fair rent if this was beneficial to the waqf.
Contracts based on fair rent, however, did not always supersede other
types of contractual arrangements, particularly during the early part of
tenant and sharecropper obligations on state and waqf lands 105

this period; al-Ramlī, for example, gave equal legitimacy to sharecropping

contracts.
The interplay between theory and practice was an integral part of the
law making process. Ultimately, Islamic legal thinkers established a con-
sistent and responsive legal framework to govern the legitimacy of both
ijāra and muzāraʿa contracts. The following two chapters further elabo-
rate on this by examining the legal rights that tenants and sharecroppers
enjoyed on state and waqf lands.
 CHAPTER THREE

DEFINING USUFRUCT RIGHTS AND REGULATING FAIR RENT

As explained in the previous chapter, the tenants’ legal status on state and
waqf lands was shaped by their obligations to waqf overseers and state
authorities and the contractual limitations imposed on them. Muftīs of
the period, however, also established laws that protected the status of ten-
ants and sharecroppers and provided them with certain usufruct rights. In
formulating such laws, jurists relied on a combination of sources includ-
ing: custom, sharīʿa, fatāwā, qanūn, and ijtihād (independent reasoning).
These scholars understood the pivotal role of the cultivator in ensuring
the efficient and proper cultivation of the land, an issue of significant
concern to them and, as they pointed out, to the Islamic community in
general. Nevertheless, jurists also expressed that cultivators were entitled
to certain inherent rights, rights not necessarily tied to the efficient func-
tioning of the land system. In this manner, the interests governing the
formulation of law at the local level differed from the concerns that pre-
occupied the state (i.e. ensuring overall productivity and the efficient col-
lection of taxes).
This chapter explores the legal rights to which tenants and sharecrop-
pers were entitled by focusing on four different issues: the possession
rights enjoyed by cultivators as a result of labor and/or buildings and
trees added to the land (this section will explore notions of kirdār, ḥaqq
al-qarār, and mashadd maska); the regulation of fair rent; the limitations
governing the role of waqf overseers/supervisors vis-à-vis cultivators; and
tīmār lands and limits on state authority.

Delineating Possession Rights:

Kirdār, Ḥaqq al-qarār, Mashadd maska

Jurists recognized that protecting the interests of cultivators/tenants was

integral to agricultural production and the overall stability of the Ottoman
agrarian system. One way in which muftīs did this was by defining the
rules that governed tenure rights, drawing on various concepts inspired
by both qanūn and local custom. While the rights accorded to law abid-
ing cultivators by jurists complemented and expanded upon state laws in
 defining usufruct rights and regulating fair rent 107

several respects, legal scholars also articulated usufruct rights that went
beyond Ottoman law. The terms referred to most frequently in the dis-
course on cultivator tenure rights are: kirdār, ḥaqq al-qarār, and mashadd
maska. Although there is certainly some overlap in their meanings, jurists
do make some important distinctions between the terms.
Essentially, al-kirdār (a term which came from Central Asian jurists)
comprised those buildings, repairs, or trees that peasants added to the
land by their labor. According to official law, cultivators on state and waqf
lands were only tenants who worked the land in exchange for a share of
the crop or payment of rent. There were mechanisms in the law, how-
ever, which allowed the tenant to gain permanency rights on the land.
Such rights, however, were affected by certain factors, shaped in large
part by how land laws distinguished between ownership of the land and
those structures and trees added to the land by the cultivator. Because
of the time involved in growing trees, the state, along the lines of sharīʿa
law, recognized them as private property. Thus, based on this reasoning,
lands such as orchards, groves, and vineyards were more often consid-
ered mulk property under the law. This is verified in the fatwā collections.
Although legally speaking cultivators usually only had usufruct rights over
grain fields and vegetable gardens, such lands, in practice (as illustrated
in chapter two), were often treated as private property and transferred
from fathers to sons (and sometimes daughters), and sold (or leased) to
other cultivators.1 Thus, it was not uncommon for tenants on these lands
to add trees and structures to the land during the course of their tenure
(although, as indicated in chapter one, this was officially not permitted
according to state law). Rafeq points out that many leases formally gave
the lessee permission to construct buildings on the land, usually with the
condition that it be approved by the waqf overseer. As kirdār, these build-
ings then became the lessee’s private property.2

1 Ze’evi, An Ottoman Century, 130.

2 Rafeq, “City and Countryside,” 313. Rafeq points out that buildings on waqf land either
functioned as shelter for the cultivator and animals or were industrial in nature, such as
flour mills, olive presses or raisin-paste presses. Such buildings were often exempt from
the right of neighborhood preemption. A similar arrangement in the West would be the
domaine congéable in early modern France. Under this type of tenant contract found in
Lower Brittany, the tenant owned the buildings, crops and fruit trees (édifices), but leased
the land from the proprietor. The system served to encourage long-term cultivation of
lands by a particular family, in part because many landlords renewed expired leases to
avoid reimbursing the tenant for the value of the édifices (a legal requirement). Thus, the
security of tenure offered by the tenant’s ownership of the structures and trees on the
land gave him a sense of ownership over the land itself. See T.J.A. Le Goff, Vannes and
108 chapter three

Ottoman law thus recognized the private ownership of trees. This was
true even in cases where such trees were planted by tenant cultivators or
sharecroppers on state or waqf lands.3 As private property, trees could be
inherited. Jurists throughout the period at hand recognize the cultivator’s
ownership rights over structures, plants, and/or trees added to state or
waqf lands through his/her labor. By the early nineteenth century, in fact,
this right appears to be taken for granted by Syrian jurists.4 Furthermore,
where Ottoman law stops short, local jurists go further in elaborating the
relationship between kirdār and permanency rights for cultivators on
state and waqf lands.
Literally meaning ‘permanency rights,’ ḥaqq al-qarār emanated from
ḥaqq al-taṣarruf (right of usufruct), but provided cultivators with a stron-
ger claim to tenure.5 The term (ḥaqq al-qarār) is not used consistently
by jurists and, in fact, after the seventeenth century, mashadd maska
(discussed below) is used more frequently. For al-Ramlī, there is a direct
link between permanency rights on the land and the cultivator’s estab-
lishment of kirdār. He emphasizes the importance of the latter in conse-
crating the peasant’s hold over the land he/she occupies and cultivates.
While this did not entail the recognition of peasant ownership rights, it
did solidify the possession rights of sharecroppers and tenants. This right,
moreover, extended to all cultivators, regardless of religious background.
Indeed, al-Ramlī maintains that a dhimmī, similar to a Muslim, had ḥaqq
al-qarār on both waqf and state lands if he/she consistently utilizes the
land for three years, cultivates with the permission of the overseer, and
has a kirdār on the land.6 Thus, while the labor invested in the land by the
cultivator was instrumental in solidifying his/her tenure, ḥaqq al-qarār
also emanated from adhering to a certain legal protocol (i.e. occupying
and working the land for a given number of years and obtaining the nec-
essary permission to do so, both of which were in line with qanūn).

its Region: A Study of Town and Country in Eighteenth Century France (Oxford: Clarendon
Press, 1981), 158–63.
3 Al-Nur al-badi fi ahkam al-aradi, Zahiriya 4400, fol. 142b.
4 Majmuʾ fatawi al-Muradiya, Zahiriya 2641, fol. 401. Here ʿAlī al-Murādī emphasizes
that a lessee of a waqf land is free to keep the buildings and plants added to the land after
the expiration of his lease (even if it doesn’t please the waqf beneficiaries) as long as these
additions don’t harm the property and he has paid the fair equivalent value for them.
5 In one instance, al-Ramlī describes a cultivator with a kirdār on waqf property as
having ḥaqq al-intifāʾ (right of utilization/usufruct) which in this context appears to be
coterminous with ḥaqq al-qarār (al-Fatawa al-khayriya, 1:182–3).
6 Ibid., 1:124–25 & 2:151.
 defining usufruct rights and regulating fair rent 109

Furthermore, al-Ramlī establishes the legal limits of each peasant’s ḥaqq

al-qarār in situations when cultivation is shared by a group of peasants.
Thus, he holds that when the cultivation of a particular village land (be
it waqf or sulṭānī/tīmār) is customarily shared by farmers in that village,
then one cultivator does not have the right to cultivate another’s share or
appropriate another farmer’s crop yields.7
Overall, al-Ramlī supports a peasant’s right to secure his/her occupancy
of the land through either ḥaqq al-qarār or muzāraʿa (which entitled the
farmer to the usufruct of the land through a sharecropping agreement).
Thus, the law sought to ensure that the cultivator’s labors did not go unre-
warded. In a bid to further protect the interests of the tenant, al-Ramlī,
while recognizing the validity of muzāraʿa, also challenges those contracts
and laws which sought to tie the peasant to the land, jeopardizing his
freedom of movement. This issue is discussed further in the following
chapter.
Ḥāmid al-ʿImādī devotes significant attention to defining mashadd
maska, a local term not found in classical fiqh books that relates to long-
term tenure and/or lease rights.8 The term appears earlier in the fatāwā
of al-Ḥāʾik, but there is no systematic attempt to try and define what it
entails. Rather, al-Ḥāʾik’s discussion of mashadd maska on both state and
waqf lands relates specifically to the transfer of maska rights upon the
death of the cultivator and the legalities associated with the assignment
of such rights by the maska holder to another individual (both of which
are addressed more fully in later sections). For the most part, al-Ḥāʾik reit-
erates provisions laid out in the qanūn that legitimized usufruct rights
on state lands—i.e. paying taxes/rent owed for ten years and obtaining
the land overseer’s permission for the transfer or assignment of maska
rights. Conspicuously absent is any discussion of kirdār and how it relates
to mashadd maska.9 Al-Nābulusī, however, suggests that the mere sowing
of state or waqf land and payment of taxes/dues owed are not enough
to establish ḥaqq al-qarār (which he equates to mashadd maska) for the
cultivator. It appears that for him, the visible byproducts of peasant labor
(i.e. structures, trees, etc.) over a long period of time (with use rights, of
course, carrying the approval of the overseer) are a necessary component
for establishing long-term tenure rights.10 In this way, al-Nābulusī is more

7 Ibid., 2:151.
8 Gerber, Islamic Law and Culture, 102.
9 Bab mashadd al-maska, Zahiriya 5677, fols. 9a–10b. See also Mundy and Saumarez-
Smith, Governing Property, 29.
10 Fatawa al-Nabulusi, Zahiriya 2684, fols. 106b–107a.
110 chapter three

similar to al-Ramlī. However, a cultivator’s mashadd maska could be lost

and the kirdār uprooted if he/she failed to pay the necessary dues.11
According to Ḥāmid al-ʿImādī, mashadd maska entails:
the right to cultivate someone else’s land, and, linguistically speaking, it
means what is adhered to, so if the person in charge of the land has the
authority from its owner to cultivate it, he becomes entitled to a maska
which allows him to cultivate the land. The rule about it is that it cannot be
changed, and it cannot be owned, sold or passed on to heirs.12
Thus, on both mīrī and waqf lands, there is quite a bit of overlap between
mashadd maska, ḥaqq al-taṣarruf, and ḥaqq al-qarār. The right to mashadd
maska was not only contingent upon the cultivator securing the necessary
permission from the land overseer to sow the land. He/she also had to
demonstrate, usually over a period of years, the consistent and proper
cultivation of the land.13 According to Rafeq, the land on which a maska
was held usually comprised either a piece of land with defined boundar-
ies (such as a vineyard or orchard), a larger land belonging to a village, or
land which was part of a mazraʿa (such as various lands within a village
or on the outskirts of a village, both cultivable and non-cultivable).14 Such
usufruct rights were often passed on to heirs and muftīs often condoned
such practice, particularly when the landlord’s permission was obtained.
A cultivator with mashadd maska on either government or waqf lands
enjoyed certain protections under the law. Echoing earlier fatāwā by
Ḥāmid al-ʿImādī and al-Ramlī, Ḥusayn al-Murādī maintains that if an indi-
vidual usurps a maska holder’s cultivation rights by erecting buildings or
sowing plants on the land (be it waqf or mīrī) without the permission of
the maska holder nor pursuant to any legitimate reason, then the usurper
has to be ordered to uproot what he/she has planted and/or demolish
what he/she has built and turn over the vacant land.15
On the flip side, possessing a kirdār or maska on either state or waqf
land did not entitle a cultivator who willingly relinquished his/her rights
to return to the land and try to reclaim such rights (referred to by al-Ramlī
as ḥaqq al-istirdād), particularly if this involved removing a law-abiding

11 Ibid., fol. 108b.

12 Ibn ʿĀbidīn, Al-ʿUqud, 2:198.
13 Majmuʾ fatawi al-Muradiya, Zahiriya 2642, fol. 328.
14 Rafeq, “City and Countryside,” 308.
15 Majmuʾ fatawi al-Muradiya, Zahiriya 2642, fols. 335–36.
 defining usufruct rights and regulating fair rent 111

tenant or sharecropper working the land.16 This is detailed in a fatwā

issued by ʿAlī al-ʿImādī in the late seventeenth century. The case involves
a tenant (Zayd) who willfully abandoned his maska rights on a waqf land
for a period of twenty years. Consequently, the land became bare of any
plants and the overseer permitted another tenant (ʿAmr) to plant the
land. ʿAmr ploughed the land, prepared it for sowing, and paid all the dues
to the endowment; the land remained in his hand for a period of fifteen
years after which time Zayd came and sowed it without any legitimate
reason (although his seeds did not germinate). The muftī rules that Zayd is
required to turn over the land to ʿAmr given the work he (ʿAmr) has done
in preparing the land for sowing.17 Thus, the cultivator’s tenure rights are
clearly linked to the labor invested in working the land.
Often times, a person who held a maska was also involved in a lease or
sharecropping agreement and such a contract, with the permission of the
land overseer, was often taken over by heirs when the lessee/sharecrop-
per died. Having a mashadd maska on state or waqf land, furthermore,
certainly strengthened a cultivator’s leasing rights vis-à-vis other tenants.
A tīmārī or waqf overseer, for example, did not have the legal right to
lease a land cultivated for years by an abiding, productive cultivator (or
cultivators) to another tenant(s) if the existing lessee(s) agreed to pay the
fair rent when renewing the lease.18 An overseer, furthermore, could not
make unreasonable demands of a cultivator with a mashad maska. For
example, in a case involving a mutawallī who wants to compel a maska
holder to pay his rent on a decade rather than annual basis, ʿAlī al-Murādī
rules that this is illegal.19
The following fatwā issued by Ḥāmid al-ʿImādī addresses the rights
enjoyed by an heir to maska rights:
Question: There is a land . . . part of a given village’s feddāns that is part of a
waqf land and a mīrī land and the mashadd maska of the land and the plants
on it are under Zayd’s usufruct (taṣarruf ) and ownership, passed from his
father, who used the land in a legal manner (wajh shariʿī) before him. A

16 Ramlī, al-Fatawa al-khayriya, 2:152; Al-Nur al-badi fi ahkam al-aradi, Zahiriya 4400,
fol. 150a. Here ʿUbaydu’llah ibn ʿAbd al-Ghānī makes reference to al-Ramlī’s rulings on this
issue as it pertains to kirdār.
17 Al-Nur al-mubin fi fatawi al-ʿImadiyin, Zahiriya 7508, fol. 68a. A similar fatwā is issued
by Ḥusayn al-Murādī in the eighteenth century (Majmuʾ Fatawi al-Muradiya, Zahiriya
2642, fols. 333–34).
18 Majmuʾ fatawi al-Muradiya, Zahiriya 2642, fols. 325, 330, 331; Zahiriya 2641, fols. 393,
408–409.
19 Majmuʾ fatawi al-Muradiya, Zahiriya 2641, fol. 408.
112 chapter three

long period passed and both of them paid the appropriate dues to the waqf
and the state without objection ( yadfaʾān maʾ ʿala al-ard li-jihat al-waqf wa
al-mīrī fi al-muddat balā muāʾrid) and now a group of the village’s farmers
are objecting to his hold over the land in question without a legal excuse
(balā wajh shariʿī), alleging that its area is larger than what was in [Zayd’s
father’s] possession and that they have a right to survey (masḥ) the village’s
lands and take the excess land from his possession and divide it among them
without any legal justification (bidūn wajh shariʿī). Would they not have the
right to do so and everything stays as it has been for a long time?
Response: Since the mashadd maska of the land was at his command and
the cultivation has been taking place in his possession, then they have no
right to take it away from him. The pioneer of Palestine Shaykh Khayr al-Dīn
was the first of the waqf authors to write about it when he said that, even if
the land was more than he is entitled to, it could have been done [in such a
manner] to serve a purpose that the waqf representative (al-mutakallim ʿala
al-waqf ) saw fit, and the rule is to consider it right.20
As long as it is done in a legal manner, the jurist supports the maska
being passed on to one’s family members. Rafeq has in fact documented
that it was not uncommon for mashadd maska to be transferred from a
deceased usufruct holder to a surviving child(ren), a widow or even an
orphan(s). The individual(s) who assumed such rights often treated the
maska as they would freehold property. In cases in which mashadd maska
was held by more than one person, the protocol followed for transferring
the rights of a deceased holder differed according to the school of law.
Rafeq explains,
Partners in the mashadd maska had to be present in court, according to the
Ḥanafī madhab, to sanction and approve of the transfer of any portion of
the mashadd maska to new partners. When partners were not present, the
transfer of the mashadd maska rights, whether it was on its own or together
with an act of sale of plantations, was referred to a Shāfiʿī or Ḥanbalī judge
to legalize it.21
The above fatwā indicates that the waqf overseer had the authority not
only to approve the transfer of mashadd maska, but also to allot more
land to the heir if need be. In reference to this latter issue, Ḥāmid al-ʿImādī
relies on precedence in issuing his opinion, referring to a judgment passed
by Khayr al-dīn al-Ramlī. When such arrangements were made accord-
ing to the letter of the law (as evident here), the maska holder enjoyed

20 Ibn ʿĀbidīn, Al-ʿUqud, 2:202.

21 Rafeq, “City and Countryside,” 309.
 defining usufruct rights and regulating fair rent 113

significant rights vis-à-vis those who challenged his/her possession of the

land. The key point that al-ʿImādī reiterates again and again, however, is
that such a transfer of maska rights (be it in the form of a trade between
two maska holders, a sale of maska rights or a transfer of rights to a fam-
ily member) has to be approved by the mutawallī (or, in the case of state
land, by the tīmārī or sipāhī), otherwise it is null and void.22 The maska
holder even had the right to profit from the sale of maska rights/ḥaqq
al-qarār if it was done in a legal manner.23 The law is clear, however, that
should a cultivator sell his/her mashadd maska rights on state or waqf
land, then he/she does not have the right to come back and reclaim the
maska from the buyer.
What is not readily apparent, however, particularly in fatwā collections
up through the first half of the eighteenth century, is whether holders
of mashadd maska were necessarily involved in leases and/or sharecrop-
ping arrangements on the lands they tilled. Some obviously held leases on
the lands they cultivated and clearly all paid certain dues and/or rent to
the waqf overseer or state representative. It appears, however, that such
arrangements were not always formalized through contracts. Consider the
following fatwā;
Question: There are several pieces of land in a certain village which are in
their entirety part of a charity waqf. The mashadd maska is held collectively
and only one-tenth of it is held by the village and a man from among the
group vacated his mashadd maska to Zayd. The one-tenth sanctioned his
evacuation while the waqf supervisor did not. Would this evacuation be con-
ditional upon the approval of the waqf supervisor in question, rather than
the owners of the one-tenth or not?
Response: Yes.24
This fatwā illustrates that al-maska could be held collectively—an arrange-
ment less common in situations when land was leased and not uncom-
mon in lands that were sharecropped, although, in theory, a sharecropping
contract was legally supposed to be between no more than two individ-
uals. Yet, there is no indication here that these villagers were involved
in any sharecropping arrangement with the waqf. Looking again at the
fatwā on pages 111–112, while it is clear that Zayd and his father before him

22 Ibn ʿĀbidīn, Al-ʿUqud, 2:202.

23 Ibid. See also Fatawa al-Nabulusi, Zahiriya 2684, fol. 121b, 122b; and al-Nur al-badi fi
ahkam al-aradi, Zahiriya 4400, fol. 138a.
24 Ibn ʿĀbidīn, Al-ʿUqud, 2:202.
114 chapter three

paid dues to the waqf and the state, it is less evident whether he or his
father held any type of contract over the land. Thus, not all maska hold-
ers had formal lease contracts on the lands they worked. Nevertheless, by
the eighteenth century, Ḥāmid al-ʿImādī stipulates that a tīmārī or waqf
supervisor is obliged to give priority to the maska holder when attempting
to lease a particular land.25 It would appear that until the early eighteenth
century, security of tenure did not necessarily depend on the existence of
such contracts—consistency in cultivation over a long period of time, the
establishment of kirdār (in some cases), and fulfillment of specific legal
obligations (i.e. payment of dues, etc. and mutawallī/state representa-
tive consent when needed) ensured that the maska holder’s rights were
not jeopardized. Adhering to these necessary standards and obligations
established a sort of de facto contract between the maska holder and the
landlord. Thus, such a relationship fell somewhere between unauthorized
use and use based on the existence of a formal contract. By the second
half of the eighteenth century onwards, however, muftīs place greater
emphasis on the need for cultivators with mashadd maska to hold legiti-
mate lease contracts.26 Regardless, however, muftīs looked unfavorably
upon the displacement of a maska holder with no legal justification. For
example, in a case involving a new mutawallī who took over a waqf and
attempted to remove the cultivator (Zayd) with a mashadd maska, Ḥāmid
al-ʿImādī rules that such an action is forbidden; he asserts that “Zayd’s
right to hold the land has been established, [thus] the land stays in his
possession . . .”27
By the late eighteenth/early nineteenth century, Ibn ʿĀbidīn clarifies
that the rights associated with mashadd maska did not depend on the
existence of a kirdār. He refers specifically to a case involving a lessee who
claims the right of mashadd maska, even though he did not establish any
kirdār (i.e. buildings, trees), in order to consolidate his hold over a waqf
land after the expiration of the lease. As mentioned in chapter two, most
leases lasted for three to six years, but it was quite common for leases to
be prolonged indefinitely. One way in which lessees could go about doing
this was by claiming to have mashadd maska rights. Such rights, as this
particular fatwā insinuates, were gained by consistent and proper cultiva-
tion of the land. Ibn ʿĀbidīn specifically states in the fatwā that the right of

25 Ibid., 2:203.
26 Majmuʾ fatawi al-Muradiya, Zahiriya 2641, fols. 393, 408, 409 and Zahiriya 2642, fols.
325, 328; and Al-Ikhbar ʿan haqq al-qarar, Zahiriya 100, fols. 48a, 48b, 49a.
27 Ibn ʿĀbidīn, Al-ʿUqud, 2:203.
 defining usufruct rights and regulating fair rent 115

mashadd maska did not hinge on the presence of kirdār.28 By disassociat-

ing the two, he gives credence to the cultivator’s right to claim mashadd
maska over the land even in the absence of kirdār.29 While the time and
labor invested in the land by the cultivator remains important, the role of
kirdār in cementing his/her tenure is less pronounced than in al-Ramlī’s
fatāwā. Ibn ʿĀbidīn continues to recognize kirdār, but as an inherently
separate issue from rights in land.30
The notion that the legitimacy of ḥaqq al-qarār emanates from the
payment of rent and/or the existence of a valid legitimate lease contract
becomes more pronounced by the late nineteenth century, as evident
in al-Ḥusaynī’s epistle. Rather than being contingent on the existence of
structures or trees (as it was in the past, according to al-Ḥusaynī), ḥaqq
al qarār derives from the cultivator’s timely payment of rent and other
dues and his consistent and proper cultivation of the land (al-Ḥusaynī
points out that a cultivator loses his usufruct rights if he leaves the land
uncultivated for three consecutive years and/or abandons the land).31
While not completely inconsistent with what earlier jurists articulated,
al-Ḥusaynī’s epistle nonetheless makes a clearer break between kirdār
and ḥaqq al-qarār. What is notable when looking at both Ibn ʿĀbidīn and
al-Ḥusaynī’s work is not that the labor and time invested by cultivators
becomes less important, but that the contractual basis of the peasant’s
relationship to the land becomes more pronounced.
The right of mashadd maska often facilitated a cultivator’s efforts to
establish kirdār on a particular piece of land. Cultivators leasing lands
that needed rejuvenation or rebuilding and/or renovation of canals (this
included mewāt lands and distressed waqf properties) were in a particu-
larly advantageous position. Of course, in order to reap such advantages,
a cultivator usually needed to gain the permission of the land overseer
or official, hold maska rights over the land, and pay the agreed upon fair
rent, otherwise he/she could be ousted.32

28 Ibid., 2:201. He states: “. . . the mashadd maska is not contingent upon the presence
of the kirdār in question, rather mashadd maska usually applies to lands standing on their
own, which have no buildings or trees . . .”
29 When an individual challenges the usufruct rights of a cultivator with mashadd
maska over a fallow land in an endowment, passed down from his grandfather to his father
and then to him (dating back 150 years), Ḥusayn al-Murādī rules that this individual (ʿAmr)
is not entitled to take any portion of the land (Majmuʾ fatawi al-Muradiya, Zahiriya 2642,
fol. 332).
30 Mundy and Saumarez-Smith, Governing Property, 31.
31 Al-Ikhbar ʿan haqq al-qarar, Zahiriya 100, fols. 47a, 47b.
32 Al-Nur al-mubin fi fatawi al-ʿImadiyin, Zahiriya 7508, fol. 69a.
116 chapter three

Referring to mewāt lands (defined as land which is not under anyone’s

domain, void of water, distant from populated lands, and wild and uncul-
tivated), ʿUbaydu’llah ibn ʿAbd al-Ghānī maintains that cultivators (be
they dhimmīs or Muslims) who revive such lands, with the permission of
the imām, gain property rights to the land.33
While normally lessees with a mashadd maska did have the right
to cultivate trees and vineyards on waqf land, they usually needed the
mutawallī’s approval before engaging in such actions as digging and
building.34 However, in cases in which there was damage to the land
and/or its structures, lessees were either accorded permission up front
or not required to seek permission at all for digging or erecting build-
ings. The addition of buildings and/or cultivation to the land allowed
it to be more profitable for its beneficiaries, and, therefore, lessees were
provided with incentives to develop the land in such a manner.35 This
provides an example of how the law supported the role of the cultivator
as an agent of innovation. Incentives offered the tenant included owner-
ship of the buildings and/or trees erected and/or planted on the land and
favorable leasing terms. Al-Nābulusī, for example, documents a case in
which a tenant leased a distressed waqf land from the overseer on the
premise that he (the cultivator) would reconstruct the land from his own
funds. The amount invested by the lessee would be considered a debt
that the endowment owed him which could be deducted from the annual
rent paid for the land. In this particular case, the original waqf overseer
was dismissed and replaced by another and the leaseholder passed away
and his heirs assumed usufruct over the land until the lease term expired.
The new overseer, however, wanted to lease the land to someone else,
although the original leaseholders had not recovered the full debt owed
them by the waqf. Al-Nābulusī rules that the overseer is not entitled to
remove them from the land until they have fully recovered the amount
due to them.36 In such cases, the lessee has the right to either hold the
lease until his/her funds have been recovered or demand that the overseer
pay him/her the remaining amount due.37

33 Al-Nur al-badi fi ahkam al-aradi, Zahiriya 4400, fols. 151a–151b. He defines ‘revive’ as
building structures, digging/excavating, planting or watering or making the land suitable
for agriculture.
34 Ibn ʿĀbidīn, Al-ʿUqud, 2:203.
35 Ibid., 2:202.
36 Fatawa al-Nabulusi, Zahiriya 2684, fol. 104b.
37 Ibid. See also fol. 108a. ʿAlī al-Murādī also emphasizes that a lessee is legally entitled
to get reimbursed for investments made by him/her in the waqf, as long as such invest-
ments are beneficial to the waqf itself (Majmuʾ fatawi al-Muradiya, Zahiriya 2640, fol. 48).
 defining usufruct rights and regulating fair rent 117

The rights accorded here to tenants on waqf lands in need of repair

raises an important point regarding the inalienability of waqf properties.
As discussed in chapter two, a waqf, in principle, should be in perpetuity
and inalienable, that is, it should not be subject to sale, mortgage, inheri-
tance, and so forth. There were mechanisms, however, embedded in the
law that allowed for the conversion of the waqf ’s inalienable property
into transferrable assets. One such procedure, istibdāl or the exchanging
of waqf property, was discussed in chapter one. There were two other
arrangements that applied to tenants on waqf lands in need of rejuvena-
tion, as in the above example.
One such method which could be used to alienate a waqf property was
ḥikr. Relatively common in Egypt and Syria after the twelfth century, ḥikr
provided the tenant of the waqf with permanent lease rights or long-term
use rights to the land. Thus, in an attempt to encourage the development
of deteriorated waqf property (through farming or building, for example),
judges sometimes approved long-term leases (e.g., ninety years). Tenants
could sell their lease rights under the ḥikr contract, and bequeath them to
family members according to Islamic law.38
In the khulū contract, which dates back as early as the sixteenth cen-
tury, the tenant repairs the property and, in doing so, gains not only a
long-term lease, but also some property rights. Thus, under such a con-
tract, the resources spent by the tenant on the land allowed him/her a
certain claim over the land itself.39 Although it is not clear from the fatāwā
whether the ḥikr or the khulū contract prevailed during the period under
consideration (neither is consistently referred to by name), tenants who
assumed responsibility for damaged waqf lands were accorded some of
the privileges associated with these contracts.
While a cultivator could hold a mashadd maska on either mīrī or waqf
land, the nature of the maska and the rights which it accorded the culti-
vator could differ depending on the status of the land being cultivated. A
fatwā issued by Ḥāmid al-ʿImādī illustrates this:
Question: There is a farm (mazraʿa) standing on its own running through a
waqf ahlī supervised by one of its beneficiaries and under Zayd’s lease for a
given period of time and for a given amount of rent (ujra maʾlūma). Zayd
completed that period and ʿAmr leased it from the supervisor (nāẓir) in
question for a given period of time and a given rent and now he is claiming

38 Dallal, “Islamic Institution of Waqf,” 26–27.

39 Ibid., 27.
118 chapter three

that Zayd, the previous lessee, has in it a mashadd maska and that he has
designated it as waqf for the benefit of a given group of people, including
the aforementioned ʿAmr, according to a deed issued by a Ḥanbalī judge,
who approved the legality of the maska according to his own tradition and
then a Ḥanafī judge executed the deal based on his own tradition. However,
a Ḥanbalī muftī decreed that the waqf in question is not correct (bi ʿadm
siḥa) and therefore neither was the maska, arguing that the ruling [issued
by the Ḥanbalī judge] was not legal. Should the deed in question be honored
or not?
Response: Since the situation is as explained, there is no doubt that it was
wrong for the Ḥanafī to execute it, since it is based on the soundness of the
Ḥanbalī ruling, which turned out to be illegal and in contradiction with the
Ḥanbalī tradition as decreed by their muftīs based on their own books which
say that the this sort of maska cannot be applied to waqf land, such as the
farm in question. Rather, [this type of maska applies] in the case of kharāj
land owned by the sultan which a cultivator revives with the permission of
the imām, and tills and levels . . . and pays its kharāj and cultivates the land
to the point that he treats it as his own. The ruling did not concern an issue
that was subject to interpretation to begin with, so that if a contradictory
ruling is issued, it should be implemented. . . .40
Cultivators often took advantage of the maska rights accorded them to
engage in actions (in this case designating an already existing private waqf
as a waqf to benefit a certain group of people) not entirely permissible.
Waqf lands were particularly susceptible to abuse by influential lessees
who often treated such lands as freehold. The interesting point here, how-
ever, is that Zayd, the first lessee who claimed mashadd maska rights, was
supported in his actions by the legal establishment—the Ḥanbalī judge
who ruled on the legality of the maska and then the Ḥanafī judge who
executed the deal. In fact, it was not unusual for judges of one school to
accept decisions issued by judges of another school.41 The muftīs, however,
as legal scholars, had the upper hand in determining the actual soundness
of the law as interpreted by judges. In this case, the muftī ruled that the
Ḥanbalī judge’s decision (referred to as the “contradictory ruling”), in spite
of its illegality, should be adhered to because the issue was not initially
subject to interpretation when this judge made his decision. Generally
speaking, muftīs were concerned with the efficient and proper application

40 Ibn ʿĀbidīn, Al-ʿUqud, 2:203–204.

41 Ibid. On the same page, Ḥāmid al-ʿImādī issues another fatwā which accepts the
legality of a deed declared as valid by a Ḥanbalī judge.
 defining usufruct rights and regulating fair rent 119

of the law in a manner that minimized disruption and promoted agricul-

tural productivity. Thus, as various examples illustrate, they were hesi-
tant to overturn decisions that had been implemented, nullify or break
existing contracts, or remove structures and/or crops unless absolutely
necessary.
This fatwā supports Johansen’s argument discussed in chapter one that,
by the seventeenth century, kharāj paying lands had increasingly reverted
to the state. However, on those kharāj paying lands in need of revival,
the state accorded willing cultivators generous rights to assume respon-
sibility for the rejuvenation of the land through a mashadd maska. The
special status of lands needing rejuvenation is once again evident here.
By efficiently cultivating and caring for the land and paying the kharāj,
these maska holders legally assumed certain rights which, for all practical
purposes, translated into ownership rights. Thus, according to al-ʿImādī’s
ruling, these maska holders had the right to designate land as waqf. This
fatwā challenges the argument put forth by Johansen that by the seven-
teenth century kharāj came to equal rent, and was therefore not treated
as proof of ownership over the land.
Ultimately, there were several mechanisms embedded in the law that
guaranteed the cultivator’s usufruct rights and security of tenancy on state
and waqf lands. These legal scholars responded to local reality and custom,
ensuring the adaptability of Islamic law. On one level, the fatāwā provide
further evidence of the tendency of established cultivators to treat the
land (be it state or waqf ) as their own. While the law clearly limited such
practices by protecting the integrity of state and waqf lands and ensur-
ing the proper administration of mashadd maska, it also put forth provi-
sions that ensured the cultivators’ claims to the land were not entirely
jeopardized. Thus, if done in a legal manner, cultivators could maintain
usufruct rights for generations, establish trees, vines and buildings which
they would come to own, and gain a privileged status by rejuvenating
deteriorated lands.

Regulation of Fair Rent

As mentioned in the previous chapter, most legal thinkers by the sev-

enteenth century agreed that lease agreements on state and waqf lands
should be based on the ‘fair rent’ as opposed to the contractually fixed
rent, meaning that rent was set in accordance with market conditions. The
majority of fatāwā and commentaries that deal with fair rent, however,
120 chapter three

refer specifically to waqf lands rather than state lands (mulk lands are
rarely referred to, largely because such lands were limited to urban
areas and their immediate neighborhoods). Indeed, court records from
the period provide evidence indicating that most lease contracts in
the Damascus countryside during the early eighteenth century dealt
with agricultural lands that were designated as religious endowments.
Rafeq attributes this in part to the rise in the number of waqf ahlī (waqf
land dedicated to the descendants of the founder) during the eighteenth
century.42
This is not to say that state lands (referred to as sulṭānī, or arādī bayt
al-māl) were never leased out or that muftīs were not concerned with the
legal ramifications of fair rent as it pertained to the leasing of such lands,
but, for practical and moral reasons, muftīs and legal thinkers deemed
it necessary to address this issue as it pertained to waqf lands. For one,
while state land was the responsibility of the state and its agents, waqf
land, which was under the control of a mutawallī and/or nāẓir, could be
abused by powerful notables and military men, who occasionally colluded
with administrators and supervisors. Secondly, several ʿulamāʾ themselves
benefitted directly from the revenues accruing to waqf properties. Finally,
muftīs and legal thinkers perceived themselves as guardians of these reli-
gious endowments—not only in the interest of the waqf ’s beneficiaries,
but also in the interest of the waqf itself as a charitable endowment
meant to serve the public good.
Careful to ensure that the application of fair rent (increasingly common
on both leased and sharecropped lands) was not haphazard, legal thinkers
regulated and monitored the payment of fair rent so that cultivator rights
were not jeopardized. One important way in which muftīs and legal schol-
ars did this was by setting limits on rent increases and when they could be
initiated. Ibn ʿĀbidīn addresses this issue most directly. He highlights, for
example, that in month-to-month leases, increases in the fair rent prior
to the end of the month are not legally justified; any increase in the fair
rent before this period would constitute breaking an existing lease.43 Fur-
thermore, referring to lease contracts based on a contractually fixed rent,
Ibn ʿĀbidīn argues that if harm (presumably economical harm) is done to
the waqf in such an arrangement, then an annulment of this rent should

42 Rafeq, “City and Countryside,” 312. The increase in the number of waqf ahlī is also
highlighted by Barnes, Introduction to Religious Foundations, 42.
43 Ibn ʿĀbidīn, Radd al-muhtar, 6:595.
 defining usufruct rights and regulating fair rent 121

be declared and the fair rent implemented. However, he qualifies this by

saying that annulling such agreements without necessity is inappropriate,
demonstrating that he valued the sanctity of existing contracts (barring
any harmful repercussions to the interests of the waqf or bayt al-māl) and
frowned upon lessees or lessors breaking such agreements (particularly if
based on fair rent).44
Unlike Ibn ʿĀbidīn, al-Ḥaṣkafī before him had a stricter interpretation
of contracts based on a fixed rent, simply maintaining that such arrange-
ments should be annulled from the beginning.45 His perspective was
in line with the mainstream Ḥanafī position that increasingly came to
oppose such contracts by the sixteenth century.
For those contracts based on fair rent, Ibn ʿĀbidīn, in response to
al-Ḥaṣkafī’s judgment on the matter, defines what constitutes an accept-
able increase in the fair rent (in those conditions where it is warranted):
Ḥaṣkafī’s saying:. . . . He said in al-Bahr: the contract is not broken because of
a small increase [in the fair rent], and perhaps what is meant by an excessive
[increase] (al-ziyāda al-fāḥisha) is what people accept as not cheating . . . as
was mentioned in the book of Wikāla. . . . if the rent of a house was ten, for
example, and its fair rent increased by one, then it is not broken, and also
similarly, if the mutawallī leased it for nine, then it is not annulled, contrary
to what the case would be if the addition or increase was two.
Ibn ʿĀbidīn:. . . . If a mutawallī rents a waqf for a fair rent, or in the customary
amount that people cheat about, then the lease is not broken, and if another
came and increased the rent two dirhams for every ten, then that is accept-
able. Even if the land is leased to someone for eight dirhams, while its fair
rent is ten dirhams, then the lease is not broken . . . Although the contract
should be renewed with the increased rent, the lessee’s acceptance of the
increase is sufficient and the contract need not be renewed. . . . The increase
[in rent] should come from the waqf itself, rather than from the renovations
added to the land by the lessee with his own money, as in the case of land
utilized for renovation.46
The legal explanations put forth by both scholars indicate that an unjus-
tified increase in the fair rent would justify the nullification of a lease
contract. However, they both understood that variations (either below or
above the average values) in rent were to be expected. The weight that
they both give to custom and socially acceptable norms in determining

44 Fatawa bani al-ʿImadi, Zahiriya 5864, fols. 79, 251.

45 Ibn ʿĀbidīn, Radd al-muhtar, 6:608.
46 Ibid., 6:609–10.
122 chapter three

what constitutes ‘fair rent’ is significant. Both scholars also account for
the importance of market forces in shaping such values, and thus make
reference to the current rates which neighboring waqfs and/or state lands
demand from their lessees.47 In a bid to ensure that cultivators were not
taken advantage of by abusive officials, Ibn ʿĀbidīn insinuates that any
increase in the rent must be a reflection of current market conditions and
not the byproduct of an increase in the value of the waqf as a result of the
lessee’s renovations.
The responsibility of the mutawallī in establishing the appropriate rent
value for a waqf land was also emphasized. According to al-Ḥaṣkafī, if it
could be proven that a particular mutawallī knowingly leases a waqf land
below or above the average fair rent, then a judge could take the waqf out
of his control and assign a more “trustworthy” designator. If, however, the
mutawallī mistakenly leases a waqf land for an unfair rent, then the judge
could simply order him to adjust this mistake. Al-Ḥaṣkafī indicates that
the “usurper” (referring to the corrupt mutawallī) who collected more rent
than he is entitled, must return the extra portion back to the lessee.48 Ibn
ʿĀbidīn goes further by insisting that the mutawallī, before establishing
the fair rent, must ensure that a particular waqf land is delivered in good
condition to the lessee. If the lessee receives the land in a “ruined” state
and he did not cultivate it, then he does not have to pay rent.49
Al-Nābulusī highlights the limitations that governed rent increase once
a lease contract was formally ratified in front of a judge. He describes the
case of a lease drawn up between a cultivator with mashadd maska rights
and a waqf. The fair rent agreed upon by the two parties was sanctioned
by a judge. After a certain time period had elapsed (not clear from the
fatwā how much), however, the waqf overseer claims that the fair rent
is below what it should be and that a rent increase should be applied
retroactively. Although the overseer maintains that he has proof to sup-
port his assertions, the muftī rules against him and states that the proof
is not acceptable given that the fair rent was verified and approved by a
judge.50

47 If a waqf property belonged to various parties and had several supervisors, the fair
rent demanded from the lessees by the different supervisors had to be consistent (Fatawa
bani al-ʿImadi, Zahiriya 5864, fol. 121).
48 Ibn ʿĀbidīn, Radd al-muhtar, 6:614.
49 Ibid.
50 Fatawa al-Nabulusi, Zahiriya 2684, fol. 178b.
 defining usufruct rights and regulating fair rent 123

Legal thinkers also elaborate on the privileges enjoyed by the first les-
see who pays rent accordingly and ensures the proper cultivation of the
land. To begin with, such a tenant held a privileged status vis-à-vis those
who sought to challenge his/her possession rights on the land. Consider
the following fatwā issued by ʿAlī al-ʿImādī, muftī of Damascus in the late
seventeenth/early eighteenth century:
Question: What does the Shaykh al-Islām, may God forgive him, say about
a woman who possesses a waqf land according to a legal contract and has
been paying what she owes each year for over 20 years and she has a brother
who lives with her on the land, and now he is opposing her and asking
her to hand over the piece of land in question. Should he be prevented
from opposing her and should the land remain in the hands of the woman
or not?
Response: Since the woman was in control of the land in question with the
permission of the . . . mutawallī of the waqf and has been paying her dues
each year, her brother has no right to oppose her . . . and God knows best.51
This fatwā provides another example of how it was not uncommon for
women to enter into lease contracts during this period. Furthermore, as
long as a tenant had permission from the overseer/supervisor and paid
the necessary dues, his/her usufruct rights to the land could not be chal-
lenged. Although the law did not treat men and women equally with
regard to their inheritance of usufruct rights (a matter that is discussed in
chapter four), once a cultivator, regardless of gender, assumed possession
rights over a particular land, that individual’s status on the land could not
be challenged if he/she adhered to the tenets of the law. Thus, such legal
rights were was based less on gender, state interest, or custom and more
on the muftīs’ concern to ensure stable, uninterrupted cultivation of the
land in a legal manner.
The first lessee also enjoyed a privileged status vis-à-vis a second poten-
tial lessee. A waqf overseer, for example, could not lease a waqf land to
another individual if there was an existing lessee who enjoyed a legitimate
contract, paid rent, and properly cultivated the land.52 Thus, al-Nābulusī
maintains that an overseer cannot terminate a legitimate lease contract
(approved by a judge) in order to lease a property to another lessee for
a higher rent. This is a breach of the original contract; the fair rent is
agreed upon when a lease agreement is drawn up and cannot be changed

51 Fatawa bani al-ʿImadi, Zahiriya 5864, fol. 156a.

52 Ibid., fol. 146a. See also Bab mashadd al-maska, Zahiriya 5677, fol. 10a.
124 chapter three

during the course of the lease, even if the current fair rent is higher than
that agreed upon when the contract was initially concluded.53 By the early
nineteenth century, the law seems to support a more flexible approach to
adjusting the rent of existing contracts. According to Ibn ʿĀbidīn, the first
lessee has priority over others (during and after the lease contract) when
the fair rent is increased during the duration of the contract and the lessee
accepts the increase. He points out that because an increase in the rent
during the duration of the contract necessitates breaking the lease, this
can only be done if there is justifiable cause (such as financial harm to
the waqf ). However, once the rent is increased and the lessee accepts this
increase and a new contract reflecting this is drawn up, then this lessee
enjoys priority over others. If there is no justifiable cause for breaking the
current lease, but the lessee accepts an increase in rent anyway, then the
lessee is even more justified in enjoying a certain priority. Such privileges
also extend to the period after the lease expires. The first lessee’s position
is especially strengthened if he/she possesses a kirdār over the land. Ibn
ʿĀbidīn, however, realizes that the consequences of such a situation are
not always in favor of the waqf ’s beneficiaries: “. . . . the corruption and
harm done to the waqf is not hidden because of this practice, since leav-
ing the land of the waqf in the hands of one lessee for a prolonged period
of time leads him to claim its ownership.”54 This was one of the main
reasons why the Ḥanafī school of law looked down upon long-term leases.
It is clear, however, from the fatwā literature that by the early nineteenth
century when Ibn ʿĀbidīn was writing, long-term leases had become more
common.
In allowing the lessee certain priority rights over the land if he/she
willingly accepts a rent increase, Ibn ʿĀbidīn does not strictly adhere to
the guidelines established by the Ḥanafī madhhab on the leasing of waqf
lands. However, he realizes that (indicative of developments in his own
time), even when the lessee accepts an increase in the rent during the
course of an existing contract, the waqf could still be at a disadvantage in
allowing the first lessee priority in renewing his/her lease contract. Such
a prolonged period of time on the land would allow the lessee to estab-
lish kirdār rights on the land, making it more and more difficult to evict
or replace him/her. This, in addition to such mechanisms as mughārasa

53 Fatawa al-Nabulusi, Zahiriya 2684, fol. 179a.

54 Ibn ʿĀbidīn, Radd al-muhtar, 6:610.
 defining usufruct rights and regulating fair rent 125

or munāsaba (plantation), which allowed the lessee to plant plantations/

trees on waqf land and, in exchange, own a portion of the crop/trees
produced and sometimes even the land, compromised waqf interests.
In certain cases, moreover, lessees jeopardized the financial resources
of endowments by appropriating revenues generated by waqfs.55 Not all
lessees, however, attained such a status of power and influence; a large
majority remained small scale cultivators who, like their large scale coun-
terparts, enjoyed usufruct rights on the land for decades.56
In the eyes of the muftīs, a particular tenant’s rights were strengthened
if his/her lease contract had the approval of an Islamic judge. According
to jurists, a valid existing lease contract (based on fair rent and with a
clearly delineated time period) that received a judge’s approval could not
be broken easily.57 Furthermore, it was not important if the ruling judge
was Ḥanbalī, Shāfiʿī or Ḥanafī (Mālikī is not referred to).58

Limits on the Waqf Administrator’s Power vis à vis Cultivators

Although concerned with injustices committed by state officials and com-

munity leaders, muftīs and legal thinkers at the local level devote more
of their time to elaborating on what constitutes corrupt or unjust acts
on the part of waqf administrators (mostly mutawallīs and nāẓirs).59 By
monitoring the actions of waqf administrators, muftīs contributed to the
state’s efforts to protect the well-being of waqf properties. The Ottoman
government sought to exercise control over the provincial administration
through waqfs and to regulate the revenues accruing to the state from
waqf properties. However, by carefully delineating what constitutes ‘cor-
ruption’ or unjust actions on the part of such officials, religious scholars
also asserted the ʿulamā’s control or jurisdiction (as opposed to the state’s)
over issues relating to waqf properties in general.60

55 Rafeq, “Making a Living,” 117.

56 Gerber, The Social Origins, 30, 66. He maintains that small scale cultivation contin-
ued to be the predominant form of land tenure in various parts of the Ottoman Middle
East, including many parts of Syria, up through the nineteenth century.
57 Fatawa bani al-ʿImadi, Zahiriya 5864, fol. 189.
58 Ibid.
59 There is evidence that the terms—mutawallī and nāẓir—were used interchangeably
by jurists (Ramlī, Al-Fatawa al-khayriya, 1:191–92).
60 Kenneth Cuno also discusses how Ottoman jurists defended waqf lands against state
encroachment. See Cuno, “Miri or Milk?,” 146–47.
126 chapter three

In addition to being responsible for ensuring the proper application of

fair rent,61 the mutawallī was also expected to adhere to certain limita-
tions when overseeing waqf lands. To begin with, in drawing up a lease,
the overseer could not incorporate unreasonable conditions in the con-
tract. A fatwā issued by al-Ramlī illustrates this point. The fatwā concerns
a man who rented an entire waqf from the mutawallī of the waqf of the two
holy mosques, which included houses, shops, baths, and orchards in Gaza,
Jerusalem, Lod, Ramallah, and Nablus. The shares that belonged to the
lessee in the aforementioned properties and farms were leased for a rent
of seven-hundred piasters (qirsh) annually. The mutawallī attached the
condition that if anyone (it is not clear from the fatwā who this might be,
but, based on similar cases, possibly a village official or leader) increased
the rent, and the lessee accepted the increase, the person who instituted
the increase must pay the lessee’s debt that was previously owed to the
waqf. He also stipulated that the lessee must pay the waqf money owed as
a result of work done to the waqf in the past (above and beyond the rent).
According to al-Ramlī, the lessee is not bound to the agreement because
it is null and void. He should pay only the fair rent and is therefore not
liable for the payment conditions attached to the lease.62
Elaborating on other limitations, al-Ramlī also maintains that the waqf
overseer did not have the right to plant on waqf land—be it utilized for
agricultural purposes or not.63 He also stipulates that the mutawallī ’s rights
were restricted to collecting the crop and not acting as he pleased with
the waqf.64 In collecting the crop, furthermore, the overseer had to either
take a share of the crop (through a muzāraʿa arrangement) or collect fair
rent; he could not do both.65 He also was not entitled to collect advance
payments on the rent of a waqf.66 Ḥāmid al-ʿImādī emphasizes that the
mutawallī’s permission need not always be sought by the cultivator, par-

61 According to al-Ḥaṣkafī, mutawallīs who remain silent about deceptive rent prac-
tices, particularly in the context of houses and stores meant for public use, are acting in a
‘sinful’ manner. See Ibn ʿĀbidīn, Radd al-muhtar, 1:614.
62 Ramlī, Al-Fatawa al-khayriya, 1:162–63.
63 Ibid., 2:131. The same did not necessarily hold true, however, if a mutawallī made
structural additions to a waqf. According to ʿAlī al-Murādī, a mutawallī has the right to
build an addition or plant trees on a waqf with his own funds if such work adds value to
the waqf. While structural additions could potentially be owned by the mutawallī, trees
planted in the yard of a mosque remained the property of the mosque (Majmuʾ fatawi
al-Muradiya, Zahiriya 2640, fol. 8).
64 Ramli, Al-Fatawa al-khayriya, 2:162.
65 Ibid., 2:182.
66 Majmuʾ Fatawi al-Muradiya, Zahiriya 2640, fol. 61.
 defining usufruct rights and regulating fair rent 127

ticularly when the latter wished to plant trees and vines. The planting
of crops, however, as discussed in chapter three, was more complicated
and most often required the mutawallī’s/nāẓir’s prior permission, largely
because it involved significant digging.67 Trees and vines once planted
were considered the kirdār or property of the cultivator—crops, however,
were not. Finally, legal scholars consistently highlight that any damage
to the waqf resulting from the overseer’s actions was the responsibility
of the overseer and he/she had to amend such damages. The eighteenth-
century muftī ʿAlī al-Murādī, for example, echoes this sentiment in a fatwā
in which he rules that a mutawallī who chops down fruitful trees on a
waqf property should be dismissed from his post and forced to pay the
price of the trees.68
According to Islamic law, waqf yields should be applied towards the
upkeep of waqf property. It is apparent from the fatwā literature, however,
that it was not unusual for overseers (or even lessees authorized by over-
seers) to alter, renovate, or build additions to waqf properties with their
own funds. The muftīs’ primary concern was to prevent the mismanage-
ment of waqf funds. Referring to a waqf administrator who added walls
and agricultural basins to a waqf property with his own funds, al-Ramlī
maintains that he did not have the right to request compensation for such
expenses, regardless of whether he made such changes with or without the
knowledge of the waqf.69 The additions made by the overseer apparently
did not have judicial approval and were not necessary for the upkeep of
the waqf. Therefore, funding should not come out of waqf yields.
The law did, however, protect the financial rights of tenants who, with the
permission of the waqf administrator, made renovations which did add
value to a waqf property. A fatwā issued by al-Nābulusī describes such a
case. A tenant, Zayd, leased a waqf for a definite term for a set fair rent.
After the lease was drawn up, the overseer permitted Zayd to build and
renovate the property with his (Zayd’s) own funds, stipulating that the
amount he spent would be considered as positive credit for him against

67 Ibn ʿĀbidīn, Al-ʿUqud, 1:182.

68 Majmuʾ fatawi al-Muradiya, Zahiriya 2640, fols. 34–35.
69 Ramlī, Al-Fatawa al-khayriya, 1:190. While renovations were not frowned upon,
changing the nature of the waqf without the authorization of the waqf founder was. So,
for example, a mutawallī was not entitled to change a waqf dwelling into an orchard or an
inn into a public bath, etc. unless the founder made provisions which allowed the overseer
flexibility in making such changes to the benefit of the waqf (Majmuʾ fatawi al-Muradiya,
Zahiriya 2640, fols. 27, 33).
128 chapter three

his obligations to the waqf. After Zayd made these renovations, he pre-
sented the overseer with documented proof of what he spent. When his
first lease expired, he renewed it at a fair equivalent rent. By the time this
second term expired, Zayd had died and his heirs rented the property at
the same fair rent. During their lease, however, a man came forward and
offered a higher rent for the property and the overseer wanted to termi-
nate the existing lease in favor of this offer. Al-Nābulusī rules against the
overseers actions and argues that the existing lease cannot be terminated
because the waqf would never have garnered a higher rent to begin with
had it not been for the renovations made by Zayd.70 Aside from protecting
the financial interests of the existing tenants, al-Nābulusī provides legal
justification for granting such tenants and their heirs some sort of per-
manency on the land. The law, therefore, perceived such investments on
the part of tenants as long-term ones which merited legal provisions for
security of tenure.
Fatwā collections are replete with examples of what constituted cor-
rupt behavior on the part of waqf administrators. Ibn ʿĀbidīn, for example,
regards as particularly reprehensible a mutawallī who, in exchange for a
bribe (rishwa), leases the land to someone who “damages” the waqf (pre-
sumably by neglect).71 Jurists also consider it illegal when a waqf admin-
istrator transfers usufruct rights to a waqf land from one cultivator to
another based on personal interest. This is evident in a case in which a
cultivator with usufructory rights to a waqf land died (leaving no children
behind) and the mutawallī transferred these rights to his (the overseer’s)
son. Ruling in favor of the deceased’s nephew, who objected that usufruct
should go to him as the next relative in line, Ḥāmid al-ʿImādī states that
the mutawallī had no right to lease the property to his own son.72 Jurists
are also critical of waqf supervisors who wrongfully misappropriate funds.
Consider the following fatwā issued by al-Ramlī:
Question: There is a waqf dedicated to the Prophet Ibrāhīm whose yield is
to be given to the poor and the widowed women and orphans who live in a
town adjacent to the mosque of the prophet. Does the nāẓir have the right
to divide [the yield] and take one-fourth of it, leaving the beneficiaries hun-
gry and lost, even though he is perfectly capable of taking care of the waqf.
Or, is he not allowed to do this because it is forbidden (ḥarām), since he is

70 Fatawa al-Nabulusi, Zahiriya 2684, fol. 177b.

71 Ibn ʿĀbidīn, Radd al-muhtar, 6:614.
72 Ibn ʿĀbidīn, Al-ʿUqud, 2:204–05.
 defining usufruct rights and regulating fair rent 129

taking allocations and not spending them as designated and he is claiming

that [the funds] are his and no one has the right to them. Please explain.
Reply: Whoever has such bad manners and morals (al-akhlāq al-qabīḥa)
should be deposed and replaced with someone who would obey God. When
a waqf is designated for this noble prophet, everything should be done to
protect it against any damage . . . particularly since this prophet was famous
for his good manners (akhlāqahu al-karīma). How could anyone who would
hinder this succeed, especially when he is denying the rights of widows, the
poor, and orphans? [The supervisor’s] claim that this share belongs to him
is far from correct, for it is the property and money of the waqf and it is
forbidden to him . . . He is committing a forbidden act . . . and the rulers of
the Muslims (ḥukkām al-musilmīn) should prevent him from harming others
and should appoint someone who fears God, and God knows best.73
The muftī clearly finds the supervisor’s actions to be reprehensible and
abusive. His actions are criticized on both legal and moral grounds. The
fact that this nāẓir diverted funds for his own use at the expense of wid-
ows and orphans is what made his actions particularly appalling. The
scale of his crime is best illustrated by the muftī’s call that he be removed
from his post by the “rulers of the Muslims.” Approximately a century
later, ʿUbaydu’llah ibn ʿAbd al-Ghānī is equally critical of overseers who
take advantage of sharecroppers by appropriating a large share of their
crop yields. He stipulates that a waqf overseer cannot simply stipulate an
allotment of wheat, barley, or cotton due to him from the sharecropper(s)
based on “his own beliefs and guesses.” In fact, according to ʿUbaydu’llah,
should the sharecropper claim under oath that the share due to the waqf
is less than the share that has been set by the waqf overseer, then the
law should consider the sharecropper’s claim as truth. After all, the initial
allotment due to the waqf should have had the sharecropper’s agreement.
For ʿUbaydu’llah, such an act on the part of an overseer goes against the
canonical law of Islam and “leads . . . only to tyranny and oppression, as
they take more than they should from the sharecroppers.” Such deeds
should be prevented as they “bring serious harm to Muslims, and trespass
righteousness.”74
In addition to the wrongful collection of waqf funds or yields, other
types of misappropriation that supervisors/overseers were guilty of include
land embezzlement and diversion of funds or resources.75 In one case

73 Ramlī, Al-Fatawa al-khayriya, 1:193.

74 Al-Nur al-badi fi ahkam al-aradi, Zahiriya 4400, fol. 149a.
75 Fatawa bani al-ʿImadi, Zahiriya 5864, fols., 74, 283, 284b.
130 chapter three

involving a waqf mill with multiple supervisors (nāẓirs), some of whom

had received more rent than others from the mill, the law maintains that
those supervisors who received less have the right to demand compen-
sation from those who have been receiving more.76 Corrupt accounting
practices on the part of waqf administrators are also strictly reprimanded.
In a case involving an overseer who sold the fruits of waqf trees at a higher
price than he recorded in the accounting books, al-Nābulusī rules that,
“should the said felony be proven against him in a legal manner, then such
a deed would be considered as treachery against the said waqf, and he
deserves dismissal.”77 Ultimately, such deceptive financial practices divert
funds away from waqf beneficiaries and the proper upkeep of the waqf
and thus are harmful to the well-being of the endowment. The situation
is more complicated in cases involving multiple beneficiaries. Sometimes
mutawallīs/nāẓirs diverted funds away from the waqf by not giving all or
some of the beneficiaries their entitled shares. Strictly prohibiting the
overseer from disposing of waqf revenues for his/her own benefit or the
benefit of certain beneficiaries and not others (if not in line with the waqf
deed), the law stipulates in such cases that the administrator’s records can
be audited and/or he/she can be dismissed on grounds of treachery.78
When waqf funds or resources are diverted without permission from
the waqf founder or judge, muftīs often rule that overseers must return
money already spent.79 In a case in which waqf funds were used by the
mutawallī to pay for a fountain inside of a mosque (the latter being part
of a waqf property), the muftī (Muḥibb al-dīn al-Ḥanafī) insists that this
is a legal violation and that the overseer should return the money wrong-
fully spent.80 Sometimes muftīs approved more radical actions in a bid to
reinstate the status quo. A seventeenth-century fatwā describes the case
of a waqf administrator who illegally appropriated a portion of the waqf
and sold it to Jews, who in turn converted the land into a cemetery. When

76 Ibid., fol. 226.

77 Fatawa al-Nabulusi, Zahiriya 2684, fol. 97a. ʿAlī al-Murādī issues a similar harsh fatwā
against a mutawallī who collects sixty-six piasters of rent yet pays the beneficiaries as if he
collected only 35 piasters (Majmuʾ fatawi al-Muradiya, Zahiriya 2640, fol. 62).
78 Fatawa al-Nabulusi, Zahiriya 2684, fol. 110b; and Majmuʾ fatawi al-Muradiya, Zahiriya
2640, fol. 1.
79 There were matters for which the mutawallī was not responsible, however. For exam-
ple, in a situation in which an individual usurped money from a waqf, the mutawallī was
not held responsible (as a guarantor of sorts) for the lost amount. According to al-Ramlī,
the usurper should be made to pay for what was wrongfully taken or otherwise be ready
to “pay in the life hereafter.” See al-Ramlī, Al-Fatawa al-khayriya, 1:189.
80 Fatawa bani al-ʿImadi, Zahiriya 5864, fol. 74.
 defining usufruct rights and regulating fair rent 131

the overseer died and was replaced, the truth about the sale of the land
became known. Thus, the question was posed, should the new mutawallī
demand the land back from the Jews and, if legally established, can he
void the original sale and force them to dig out their dead and vacate the
property, returning the waqf to its original state? The muftī answers that
he can do all of the above.81
In cases of wrongful appropriation or misuse of funds, waqf administra-
tors could sometimes amend for their actions simply by returning what
they had wrongfully taken or diverted, or the waqf itself could be reverted
back to its original state. In the above example of a waqf supervisor cheat-
ing widows and orphans, however, it is not clear if returning the money
appropriated would have been enough to redeem the supervisor in the
eyes of the community. This is largely because of the harm he inflicted
upon the beneficiaries, in this case underprivileged members of society.
In weighing the actions of waqf administrators, legal scholars considered
the overall impact of their deeds on beneficiaries, the waqf itself, and the
public good. Muftīs assigned a great deal of importance to the communal
dimension of waqf management.
The fatāwā illustrate how mutawallīs/nāẓirs often acted with more
independence than they were legally entitled to in managing the affairs
of waqf properties. Consider the following fatwā:
Question: There is a waqf and part of it was damaged, so the supervisor
borrowed money for purposes other than those usually spent on the waqf
and without permission from the judge. He then sold the entire property in
question to settle a debt (dayn). Is this sale considered legitimate and would
the property remain a waqf ? Is the debt obligatory and is the supervisor
required to pay it or not?
Reply: If the designator did not specify that the mutawallī can borrow money
for reconstruction at the time of need and the judge did not authorize it,
then the supervisor is the one responsible for the debt and it should not be
paid off from waqf money . . . reconstruction should be paid for from waqf
yields and God knows best.82
The fatwā is useful in delineating the forces that shaped the overseer’s
actions. The mutawallī bypassed both the will of the waqf founder (estab-
lished in the waqf deed) and the authority of the qāḍī (judge). According
to Islamic law, the mutawallī may in fact borrow money to repair a waqf

81 Ibid., fol. 284b.

82 Ramlī, Al-Fatawa al-khayriya, 1:191–92.
132 chapter three

if he/she has the permission of the qāḍī.83 Generally, however, supervisors

must fund reconstruction of waqf properties from waqf yields, as verified
in this fatwā. Jurists such as Al-Ramlī and ʿAlī al-Murādī went so far as
to stipulate that an overseer who refuses to use waqf yields to invest in
the waqf ’s upkeep is guilty of treachery (khiyāna) and deserves being dis-
missed from his post.84
Along the same lines, al-Ḥaṣkafī uses words such “cunning” (maḥl),
“treacherous” and “sinful” to describe a corrupt overseer.85 For jurists, ensur-
ing the application of fair rent, protecting the waqf from financial and/
or physical damage, and upholding other responsibilities such as proper
cultivation practices are more than just legal duties—they are also moral
duties. This concern with the moral aspect of administering waqf lands
(and also state and orphan lands) stems from the perception that such
lands are for public use. Indeed, Islamic legal thinkers in general frowned
upon any corrupt force that jeopardized the public good for the good of a
particular individual. This social philosophy is largely born out of Islam’s
perception of private property and private ownership. As Majid Khadduri
maintains, man’s property rights in legal theory emanate from God, who,
as the ultimate ‘owner’ of all property, only granted man possession/use
rights. What remains ambiguous here is whether such rights allowed “man
only the right of possession collectively or left the mode of distribution to
man.”86 With the evolution of the law, two different positions on the issue
emerged—one promoting the collective possession of property and the
other arguing in favor of the individual’s right to handle property transac-
tions. Although the law generally supported individual ownership, it also
imposed certain restrictions limiting it, including: zakāt (alms), a tax for
the poor; waqf, (where beneficiaries had rights to the income generated
but not the actual corpus); and shufʿa, (pre-emption). Thus, Khadduri con-
cludes, “these and other qualifications and restrictions demonstrate that
Islam is primarily concerned with public welfare, and that in a conflict
between public and private interests the latter must be subordinate to
the former.”87 Along the same lines, Zubair Hasan argues that ultimately,
“all property belongs to the community and that the individual owner

83 Makdisi, Rise of Colleges, 49.

84 Ramlī, Al-Fatawa al-khayriya, 1:197; and Majmuʾ fatawi al-Muradiya, Zahiriya 2640,
fol. 6.
85 Ibn ʿĀbidīn, Radd al-muhtar, 1:614.
86 Majid Khadduri, The Islamic Conception of Justice (Baltimore; London: Johns Hopkins
University Press, 1984), 138.
87 Ibid., 138–39.
 defining usufruct rights and regulating fair rent 133

holds property essentially as an amāna, or an entrustment for safe-keep-

ing which must be returned in a timely fashion in the same condition in
which it was given.”88 The fulfillment of amāna here is considered to be
a moral obligation.

The Tīmār System and Limits on State Authority

Various scholars of Ottoman history have emphasized how the classical

Ottoman land regime witnessed a decline from the late sixteenth century
onwards.89 The displacement of the Ottoman land system is tied to the
broader social and economic decline of the Empire resulting from the rise
of a European centered world economy beginning in the sixteenth cen-
tury. According to this latter theory, which Immanuel Wallerstein defined
in detail, trade with Europe played a fundamental role in transforming
social classes and the economic institutions of the Empire.90 The shift
from tīmār to iltizām resulted in part from the increasing monetarization
of the economy as a result of this trade. In this transformation, the new
agrarian system spurred the rise of a class of local notables and eventu-
ally the commercialization of agriculture (one being necessarily tied to
the other), both of which promoted the rise of large landholdings. The
provincial elite, drawing their political and economic strength from the
control of tax farms, played a key role in bringing the East under a sort of
Western/European hegemony.
A reading of the fatāwā, however, contradicts the idea that the tīmār
system was increasingly displaced by a system of tax farming during the
seventeenth and eighteenth centuries. The several references to the tīmār
system in the fatāwā indicate that during this period, the tīmār was still a
viable institution through which the state collected land taxes.91 Indeed,

88 Zubair Hasan, “Distributional Equity in Islam,” in Distributive Justice and Need Fulfill-
ment in an Islamic Economy, ed. Munawar Iqbal (Islamabad; London: International Insti-
tute of Islamic Economies, International Islamic University, 1988), 41–42, 57.
89 Huri Islamoglu-Inan and Caglar Keyder, “Agenda for Ottoman History,” Review 1, no. 1
(1977): 31–56; Huri Islamoglu-Inan and Suraiya Faroqhi, “Crop Patterns and Agricultural
Production Trends in Sixteenth Century Anatolia,” Review 2, no. 3 (1979): 401–36; Islamoglu-
Inan, “ ‘Oriental Despotism’ in World-System Perspective”; Lewis, Emergence of Modern
Turkey; and Karpat, “The Land Regime.”
90 Wallerstein, The Modern World System and “The Ottoman Empire and the Capitalist
World Economy: Some Questions for Research,” Review 2, no. 3 (1979): 389–98.
91 Ramlī, Al-Fatawa al-khayriya, 2:150–52; Bab mashadd al-maska, Zahiriya 5677, fol. 10a,
14b; Fatawa al-Nabulusi, Zahiriya 2684, fol. 75b; Al-Nur al-badi fi ahkam al-aradi, Zahiriya
4400, fols. 143b, 144a, 148b, 149a, 150b. In his study of seventeenth- and eighteenth-century
134 chapter three

according to Dror Zeʾevi, up until the end of the seventeenth century,

iltizām was far from prevalent in the district of Jerusalem and surround-
ing areas; most of the area was still under the tīmār system.92 Further-
more, as Tabak points out, a thriving agricultural economy in southern
Syria, which beginning in the late seventeenth/early eighteenth century
became an important economic center due to its specialization in export
crops, limited the erosion of the tīmār system.93
The fatāwā indicate that not only did tīmārs continue to exist, but
that certain muftīs were in fact critical of the iltizām system in general.
Although tax farming was of central importance to the Ottoman state at
this time (as indicated in the firmāns of the period),94 both al-Ramlī and
Ibn ʿĀbidīn were opposed to the institution. Their opposition was based
on the premise that it “belonged with other types of properties that could
not be leased since such lease meant consumption of the original capital,
so that the taxation probably resembled undisguised usury.”95
Studies of court records and fatāwā from the period, however, have
found that a large landholding class did not emerge in the Fertile Crescent
and Anatolia during the seventeenth and eighteenth centuries.96 Gerber,
for example, emphasizes that tīmār holders rarely assumed the status of
true landlords and that, where tax farming did exist, it did so alongside
the tīmār system (tīmār holders often contracted with tax farmers to col-
lect the taxes on a particular tīmār).97 By the seventeenth century, the
local sub-leasing of state lands by timārīs or sipāhīs was a widespread
phenomenon, indicating the increasing commercialization of agriculture
in the region, but not the displacement of traditional structures of land
tenure.98 While it was not unusual for tīmārīs to sell their land grants,

fatāwā from the Ottoman core regions, Gerber also finds that the tīmār system was still in
full force (Social Origins, 50–53).
92 Zeʾevi, An Ottoman Century, 119. The system of tax farming seems to have been more
prevalent in seventeenth- and eighteenth-century Egypt. Cuno examines the establish-
ment of iltizāms in Egypt during this period (Pasha’s Peasants, 25–27).
93 Tabak, “Agrarian Fluctuations,” 148–50.
94 Heyd, Ottoman Documents on Palestine, 140–41.
95 Gerber, Islamic Law and Culture, 60.
96 Zeʾevi, An Ottoman Century, 122–30; Gerber, Social Origins, 66; Donald Quataert, “The
Age of Reforms: 1812–1914,” in An Economic and Social History of the Ottoman Empire, 861;
and Doumani, Rediscovering Palestine, 27.
97 Gerber, Social Origins, 50, 55.
98 Ramlī, Al-Fatawa al-khayriya, 2:106. He condones such a practice only when the land
is leased out by the assigned state official overseeing the land. In her work Palestinian
 defining usufruct rights and regulating fair rent 135

their success in privatizing state lands was limited. Up through at least

the first half of the eighteenth-century, tīmār holders could not pass their
grants onto family members without state approval.99
The following fatwā issued by al-Ramlī illustrates the importance of the
tīmār system in Palestine and the legal limitations which continued to
govern it:
Question: There is a tīmār land . . . which has farmers on it that have a
kirdār . . . [the farmers] took control of it from their fathers for a period
extending over sixty years. Does the tīmār holder have the right to remove
the farmers and rid of their trees and plant what he wants on the land?
Response: The person in charge of the tīmār does not have the right to
remove the farmers and their trees. The solution is that if the authorized
agent on the sultan’s land receives the kharāj muwazzaf or the decided
allotment of the kharāj muqāsama then he does not privately own the land
or have the right to remove the cultivators who came to have a kirdār of
planted trees and the right of usufruct . . .100
The fatwā stipulates that the sipāhīs and other dignitaries who received
a tīmār were not the owners of the land. Furthermore, al-Ramlī is clearly
opposed to the attempts of provincial elites to privatize lands allocated as
tīmārs. By maintaining that the role of the sipāhī was limited to the col-
lection of certain taxes (kharāj muwazzaf or kharāj muqāsama), al-Ramlī
underscores his opposition to such taxes being treated as rent. He also
condemns other forms of exploitation committed by tīmār holders. In one
fatwā, for example, he rules against a tīmār holder who forcefully seized
and used the livestock and crops of a cultivator on his land during the
latter’s brief absence from the land. Al-Ramlī maintains that the tīmārī
is responsible for compensating the cultivator not only for the livestock

Peasants, Singer points out that because sipāhīs often lacked familiarity with local condi-
tions, they relied on local officials who had been stationed in the region. Such individuals
“sometimes sub-leased the rights to collect revenues for the sipahis, sancak-beyis, and even
from the kadi” (128). Singer attests to the fact that subleasing of tīmār and waqf lands took
place as early as the sixteenth century in Jerusalem and Zeʾevi confirms the same for the
seventeenth century (Singer, Palestinian Peasants, 128; and Zeʾevi, An Ottoman Century,
128–29). An example of such a practice is referred to by Muḥammad al-ʿImādī (al-Nur
al-mubin fi fatawi al-ʿImadiyin, Zahiriya 7508, fol. 72a). In this particular case, a tīmārī sub-
leased the right to collect the ʿushr for one year to another individual. The latter paid the
tīmārī a certain sum for this right. Al-ʿImādī, however, rules the lease transaction invalid.
99 Zeʾevi, An Ottoman Century, 128.
100 Ramlī, Al-Fatawa al-khayriya, 2:152.
136 chapter three

lost, but also for the decrease in value of those animals which remained
alive and working.101 Finally, he also frowns upon tīmār holders who seek
to oust cultivators with a kirdār on the land.102
Al-Ramlī’s concerns are reiterated by both ʿAlī al-Murādī and ʿUbay-
du’llah ibn ʿAbd al-Ghānī in the eighteenth century, an indication of the
longevity of the tīmār institution.103 ʿUbaydu’llah, for example, argues that
tīmārīs were not landowners and had no right to oust abiding cultivators
off state lands. His views are explicitly stated in response to a question
concerning a tīmārī who wants to remove a family that has cultivated a
state land over a long period of time:
He is not legally entitled to do so, and the land stays in the hands of the cur-
rent peasants, as the unanimous opinion [of jurists] agrees that the tīmārī
has no ownership over the land, and his rights are limited to collecting the
kharāj dues that are attached to it. He has no ownership of the land that
justifies transferring the [usufruct] to whom he wishes. This is in accordance
with the well known rule: “In principle, what is must stay as it used to be.”104
Such limitations hold particularly true in cases when the cultivator has a
kirdār on the land. According to ʿUbaydu’llah ibn ʿAbd al-Ghānī, a tīmār
official is not entitled to remove the abiding cultivator or uproot his/her
plants or trees from the land.105
This desire to limit the power of abusive authorities is reiterated by
most of the legal scholars considered here. According to Ibn ʿĀbidīn, for
example, because both bayt al-māl and waqf lands are meant to serve the
interests of Muslims in general, any abuse of authority by “unjust princes”
or abusive local officials is punishable.106 Furthermore, faqīh Muḥibb
al-dīn al-Ḥanafī warns that a soldier (rajul jindī) who attempted to usurp
more than his allotted share of the crop on mīrī lands should be prevented
from doing so.107 The late seventeenth-century muftī ʿAlī al-ʿImādī and the
eighteenth-century muftī Khalīl al-Murādī both condemn tīmārīs or sipāhīs
who financially exploit tenant farmers by trying to collect more taxes or

101 Ibid., 2:135.

102 Ibid., 1:88–89.
103 Al-Nur al-badi fi ahkam al-aradi, Zahiriya 4400, fols. 141a, 141b; and Majmuʾ fatawi
al-Muradiya, Zahiriya 2642, fol. 329.
104 Al-Nur al-badi fi ahkam al-aradi, Zahiriya 4400, fol. 148b.
105 Ibid., fols. 150b, 151a.
106 Ibn ʿĀbidīn, Radd al-muhtar, 6:596.
107 Fatawa bani al-ʿImadi, Zahiriya 5864, fol. 6. In another fatwā concerning an influen-
tial man (rajul fakhīm) who forces a peasant to sell his cow and tilling machine, the muftī,
ʿAlī al-Imādī, rules that the cultivator has every right to break the sale (idem., fol. 185).
 defining usufruct rights and regulating fair rent 137

unjustly appropriate a portion of that money for themselves.108 Jurists are

also critical of attempts by timārīs or other officials to change the type of
tax collected from a particular village. In a fatwā regarding a mutakallim
who wants to impose the kharāj muqāsama on a village that has been
accustomed to paying the kharāj muwazzaf, Ismāʿīl ibn ʿAlī al-Ḥāʾik rules
that such an action is illegitimate. He elaborates that even though the
kharāj muqāsama is indicated in the royal registry (daftar al-sulṭānī) as
legitimate (as the tīmār agent pointed out), it would still be illegal to
impose it given that it contradicts current customs.109
The law was not only critical of tīmārīs/sipāhīs who financially
exploited tenant cultivators, but also those who sought to use their sta-
tus to escape paying necessary taxes. In a case, for example, involving a
recently appointed sipāhī who owns property in the village where he has
been appointed and now, based on his new position, wants to exclude
himself and his sons from paying taxes that he used to pay as an owner,
ʿAlī al-ʿImādī rules that, because he is living in the said village and has
properties there, he and his adult children are obliged to pay what was
paid before he became a sipāhī. Thus, he should not be granted any privi-
leges based on his position.110
Ḥāmid al-ʿImādī goes further than other muftīs and placed limits on
a tīmārī’s power vis-à-vis a waqf mutawallī when part of a waqf land is
controlled by the state:
Question: There is a village which runs in its entirety in a waqf charity and
one-tenth of it belongs to the state and is under the control of a tīmārī. A
group of people has a mashadd maska on its land and plants. One of the
people in question passed his maska to Zayd with the permission of the
waqf mutawallī. Is this sufficient and is the transfer of the maska not condi-
tional upon the permission of the tīmār holder?

108 Al-Nur al-mubin fi fatawi al-ʿImadiyin, Zahiriya 7508, fol. 68b; and Majmuʾ Fatawi
al-Muradiya, Zahiriya 2639, fols. 401, 402.
109 Bab mashadd al-maska, Zahiriya 5677, fol. 14b. For a similar fatwā and a similar
ruling, see fol. 10b. In this latter fatwā, al-Ḥāʾik rules that shifting from kharāj muwazzaf
to kharāj muqāsama when it contradicts customary practice is illegitimate when imposed
on cultivators working on either state or waqf lands. Muḥammad al-ʿImādī (d.1723) echoes
al-Ḥāʾik’s fatāwā when he rules that a tīmār official cannot switch from levying the kharāj
muqāsama to imposing a lump sum (the muftī uses the verb fasala, which appears to mean
‘lump sum estimation’) on peasants in regards to their cultivation of wheat and barley dur-
ing a certain year (Al-Nur al-mubin fi fatawi al-ʿImadiyin, Zahiriya 7508, fol. 70b).
110 Al-Nur al-mubin fi fatawi al-ʿImadiyin, Zahiriya 7508, fol. 68a.
138 chapter three

Response: Yes, the tīmārī has no right to the land . . . and the say about [how
to administer] the land really belongs to the waqf mutawallī . . . this is also
what the late Shaykh Ismāʿīl al-Ḥāʾik, the muftī of Damascus, decreed.111
The privilege given to the waqf supervisor over the tīmārī in this case could
be because only a small portion of the land in question was under state
control. More than likely, however, this was the muftī’s way of protecting
the integrity of waqf lands from outright state control, a matter that will
be addressed in more detail in chapter four.
In their concern to limit the power of tīmār- holders, muftīs were in line
with the Ottoman land law which sought to keep sipāhīs under control
and prevent the emergence of a landlord class. According to Gerber in
his study of seventeenth- and eighteenth-century fatāwā from Anatolia
and court records from Bursa and Palestine, there were legal and politi-
cal barriers within the Ottoman system that prevented sipāhīs (who, he
points out, lacked security of tenure) from jeopardizing peasants’ owner-
ship or usufruct rights through such abusive means as unlawful eviction,
or excessive taxation for vacant land.112 In fact, by emphasizing the cul-
tivator’s security of possession (not formal ownership, however) through
ḥaqq al-qarār and ḥaqq al-muzāraʿa, jurists not only consecrated the hold
which cultivators had on the land, but established a significant legal bar-
rier preventing sipāhīs from usurping state lands.
The restrictions that al-Ramlī and Ibn ʿĀbidīn in particular placed on
the role of the tīmār official must also be understood in the context of
their overall wariness of aggressive state tactics to gain control over all
arable lands. According to Cuno, both muftīs were opposed to the notion
of the ‘death of the proprietors’ (discussed in chapter one) on the grounds
that this justified the outright imposition of state landownership at the
expense of small landowner rights. Thus, in contrast to mainstream
Ḥanafī thought of their day, al-Ramlī and Ibn ʿĀbidīn supported the clas-
sical Ḥanafī view which perceived cultivators who paid the kharāj as own-
ers of the lands they worked.113
The reservations expressed by these jurists regarding the doctrine of
state landownership were tied to their socio-economic backgrounds and
earlier training in Shāfiʿī jurisprudence. As mentioned in the introduc-
tion, al-Ramlī was himself a landowner who oversaw his own orchards

111 Ibn ʿĀbidīn, Al-ʿUqud, 2:203.

112 Gerber, Social Origins, 51–52. See also Inalcik, “The Ottoman State,” 110.
113 Cuno, “Miri or Milk?,” 134–52.
 defining usufruct rights and regulating fair rent 139

and vineyards. Thus, he had every reason to be concerned about state

encroachment upon kharājī lands. Although it does not seem that Ibn
ʿĀbidīn was actively engaged in acquiring arable farm lands, there is evi-
dence that many merchants and religious notables of Damascus did par-
take in such an endeavor, which accounts for the attention he gave to
land issues.114 During the Mamluk period and early Ottoman empire, cer-
tain Shāfiʿī jurists such as al-Nawawī, Taqī al-dīn al-Subkī, and Ibn Ḥajar
al-Haytamī had advocated the notion of possession equaling ownership
to hinder the state confiscation of lands rightfully claimed as private or
waqf property.115 Given their juridical training, therefore, it is not surpris-
ing that both al-Ramlī and Ibn ʿĀbidīn questioned the notion of the ‘death
of the proprietors.’116 This, combined with the fact that neither Ibn ʿĀbidīn
nor al-Ramlī were officially appointed muftīs of the Empire, explains why
they sought to limit state control over arable land when possible.
The defense posed by al-Ramlī and Ibn ʿĀbidīn (as well as other muftīs)
against the state and its authorities is an indication in and of itself that
state interests had increasingly encroached upon the rights of peasant pro-
prietors, changing the status of these cultivators on the lands they worked.
Both scholars certainly realized that tenants and sharecroppers on undis-
puted state and waqf lands, although entitled to security of tenancy, could
not claim ownership rights to the lands they tilled. While neither jurist
equated possession with ownership on all types of land, the importance
they gave to the prescriptive rights of cultivators who had possession of
state and waqf lands gains new meaning in light of their stance on the
issue of kharāj-paying lands.

Conclusion

In their formulation of land tenure laws, muftīs and legal thinkers of seven-
teenth- and eighteenth-century Syria sought to define not only the posses-
sion rights enjoyed by tenants and sharecroppers, but also the limitations
governing the application of fair rent and the authority of waqf and state

114 Cuno, “Miri or Milk?,” 148–50. For more on the acquisition of arable farm lands
by local notables, see Rafeq, “Making a Living,” 108–16; and idem., “Economic Relations
Between Damascus and the Dependent Countryside, 1743–71,” in The Islamic Middle East,
700–1900, 664, 674.
115 Cuno, “Miri or Milk,” 143.
116 Ibid., 142.
140 chapter three

officials. These legal minds understood that the proper functioning of

the agricultural regime depended not only on ensuring the integrity of
state and waqf lands, but also on providing the actual cultivators with
security of tenure. Through such notions as kirdār, ḥaqq al-qarār, and
mashad maska, legal thinkers assured tenants/sharecroppers that, as
long as they held legal contracts or legal agreements (particularly from
the second half of the eighteenth century onwards), made required pay-
ments, invested time and labor into the land, and refrained from harming
the land, they were entitled to basically unchallenged usufruct rights on
state and waqf lands. In linking kirdār to long-term tenure rights on pub-
lic lands, many jurists departed from official Ottoman law. By the early
nineteenth century, it is clear that the legitimacy of the maska holder was
increasingly tied to the nature of his/her contractual relationship with
the landlord. This could also work to the benefit of the cultivator with
mashadd maska, however, as the law also dictated that this individual
should be given priority in assuming lease contracts on both state and
waqf lands. Ultimately, the establishment of such legal rights explains, at
least in part, why these lands often remained in the hands of a particular
cultivator’s family for generations.
The regulations governing the application of fair rent during this
period served the interests of tenants and sharecroppers by safeguard-
ing the integrity of existing contracts and clearly defining the role of the
waqf overseer. While most legal thinkers agreed that it was usually in the
best interest of the waqf for lease contracts to be based on fair rent, they
nonetheless were careful to regulate rent increases and protect lessees
from abusive practices. The importance that muftīs gave to the sanctity
of existing contracts served to limit the implementation of fair rent in
general and the adjustment of rents during the course of a contract. While
such a stance certainly worked to the lessor’s disadvantage at times, it also
ensured that the interests of the public good were being upheld. Muftīs
understood that failure to respect contracts could lead to economic insta-
bility and open the door to systematic abuse of the system. Thus, in the
interests of both tenants and landlords, they sought to ensure the invio-
lability of contracts.
The legal records highlight that jurists not only were concerned with
waqf administrators who sidestepped their professional responsibilities,
but also with behavior that did not conform to certain moral standards
expected of them as guardians of religious endowments. In condemning
such actions, religious scholars protected the interests of the waqf founder,
the beneficiaries, lessees and cultivators, and the general well-being and
 defining usufruct rights and regulating fair rent 141

upkeep of the waqf itself. The overseer or supervisor’s role in properly

managing waqfs was particularly relevant at a time when lessees increas-
ingly jeopardized waqf interests by laying claim to revenues generated
by waqfs.117 Jurists also sought to ensure that waqf administrators did not
treat religious endowments as their own private property. They opposed
efforts by administrators to alienate waqf property without following
proper legal procedure, invest in waqf properties without the approval of
the waqf founder or qāḍī, or wrongfully appropriate funds intended for
the waqf and its beneficiaries. At a time when long-term leases on waqf
properties and state encroachment on waqf interests was increasingly
common, muftīs understood that the proper management of waqf affairs
and finances was essential. By regulating and monitoring the actions of
mutawallīs and nāẓirs, legal scholars asserted their jurisdiction over waqf
matters and sought to protect the integrity of religious endowments from
abusive and corrupt administrators.
The legal literature of the time reflects a reality whereby tīmārs con-
tinued to exist and were not entirely eradicated by tax farming. Jurists
upheld the fundamentals of the Ottoman land system and also took an
adamant stance against abusive state officials who overstepped their
bounds. Finally, responding to changing realities on the ground, the law
recognized the validity of certain arrangements that were less prevalent
or rarely sanctioned by the law (particularly at the state level) prior to the
sixteenth century, such as the sub-leasing of state lands.

117 Rafeq, “Making a Living,” 117.

 CHAPTER FOUR

UPHOLDING THE INTEGRITY OF SHARĪʿA VIS À VIS QANŪN

There is ample evidence that qanūn and sharīʿa certainly complemented

one another (thanks in large part to the efforts of Abu al-Suʿūd to recon-
cile the two) and that jurists, judges, and legal officials across the Empire
played an integral role in applying qanūn in various realms of law. How-
ever, the evolution of the qanūn-sharīʿa relationship, particularly after the
sixteenth century, has also been characterized by instances of tension,
with Islamic legal officials either directly or indirectly challenging the
jurisdiction of qanūn. Seventeenth- and eighteenth-century jurists in Syria,
for example, while playing an integral role in upholding Ottoman qanūn,
were also adamant about protecting the integrity of sharīʿa law in mat-
ters pertaining to land tenure. This was significant considering that land
tenure law (along with criminal law) was largely under the jurisdiction of
qanūn. Jurists upheld sharīʿa and ensured their jurisdiction over matters
pertaining to land tenure by one of two ways: directly challenging state
encroachments on peasant rights, or clearly delineating laws regarding
usufruct and access to waqf lands. This chapter examines three specific
areas in which jurists invoked sharīʿa law to either question, confront,
or expand upon state law. These three areas include: peasant mobility,
women’s usufruct rights, and jurisdiction over waqf properties.

Qanūn/Sharīʿa Debate

Among scholars, there is no broad based consensus on how the legal

system developed between the seventeenth and nineteenth centuries.
According to Uriel Heyd in his study on criminal justice in the Ottoman
empire, qanūn came to be disregarded by qāḍīs after the sixteenth century.1
Rather than being replaced by sharīʿa, however, Heyd concludes that
the system came to be characterized by a “renewed tyranny of executive

1 Richard Repp agrees, arguing, however, that it came to be replaced increasingly by

sharīʿa. See, “Qānūn and Sharīʿa in the Ottoman Context,” in Islamic Law: Social and His-
torical Contexts, ed. A. Al-Azmeh (London: Routledge, 1988), 124–45.
 upholding the integrity of sharīʿa vis à vis qanūn 143

organs.”2 Basing his conclusion on European travel books, he argues that

qāḍīs became more corrupt, wielding a sort of whimsical, arbitrary and
often cruel type of justice based on suspicion if need be. Unlike Heyd,
Haim Gerber emphasizes that in seventeenth-century Bursa, qanūn was
in full force in matters of criminal law and land law, trumping to a large
extent the force of sharīʿa law. Thus, for example, along the lines of qanūn
(and not sharīʿa) “most of the criminal cases were decided without due
regard for proof of the specific charge for which the suspect was brought
to court, but rather, according to the view of public opinion.”3 Gerber does
point out, however, how certain elements of sharīʿa law came to be incor-
porated into the qanūn on matters of criminal law.
In her research on the Iraqi provinces of Basra and Mosul between
the seventeenth and nineteenth centuries, Dina Rizk Khoury argues that
jurists and scholars of the early modern period offered dissenting inter-
pretations on elements of administrative law based on the sharīʿa. They
did this, however, without challenging the overall legitimacy of the Otto-
man legal and political order. Thus, in the case of Basra, the state incorpo-
rated various elements of sharīʿa into qanūn in the arena of land tenure,
given that the former (in its laws of ownership of property) was more
accommodating to provincial realities. According to Khoury, however, the
appeal to sharīʿa increased from the last decade of the eighteenth century
(under the influence of Wahhabism) as reformers challenged the more
fluid qanūn- sharīʿa system that existed prior to that and emphasized a
more distinct split between state law and religious law.4
Although he does not specifically take up the issue of the qanūn- sharīʿa
dynamic as exemplified in the law after the sixteenth century, Bogaç
Ergene does point out, in support of Khoury’s argument, that judges in
the Empire sometimes used religious discourse to challenge the political
authority of the state between the sixteenth and eighteenth centuries.5
In his work on Ottoman Syria, Rafeq maintains that Syrian ʿulamāʾ,
beginning as early as the sixteenth century, challenged certain tenets

2 Uriel Heyd, “Kanun and Sharia in old Ottoman criminal justice,” Proceedings of the
Israel Academy of Sciences and Humanities 3 (1969): 16.
3 Gerber, “Sharia, kanun, and custom in the Ottoman law: the court records of 17th-
century Bursa,” International Journal of Turkish Studies 2, no. 1 (1981): 138.
4 Dina Rizk Khoury, “Administrative Practice Between Religious Law (Shariʾa) and State
Law (Kanun) on the Eastern Frontiers of the Ottoman Empire,” Journal of Early Modern
History 5, no. 4 (2001): 305–30.
5 Bogac Ergene, “On Ottoman Justice: Interpretations in Conflict (1600–1800),” Islamic
Law and Society 8, no. 1 (2001): 83.
144 chapter four

of Ottoman law. Legal scholars opposed such measures as marriage fees,

interest on loans and credit, and maltreatment of villagers, particularly
cases involving fleeing villagers being forced to return to their original
villages (views of Syrian jurists on this latter issue have been examined
more recently by Mundy and Saumarez Smith).6 ʿUlamāʾ opposed such
laws on the grounds that they did not conform to sharīʿa and, in some
cases, to customary laws. As Rafeq indicates, “by voicing their concern
about the proper implementation of the sharīʿa, the Syrian ʿulamāʾ were
upholding their Islamic legacy and promoting themselves as guardians of
Arab-Islamic culture.”7

Peasant Mobility

This is an issue that has been addressed in some detail by scholars who
have noted the general opposition that Ottoman Syrian jurists expressed
towards state attempts to limit peasant mobility after the mid seven-
teenth century.8 Various Ottoman Syrian legal thinkers and jurists, partic-
ularly between the mid seventeenth through the early eighteenth century,
addressed the issue in their writings and fatwā collections.9 I will look
more closely here at the legal opinions put forth by Ottoman Syrian muftīs
on the issue. According to the official Ottoman view, peasants could not
leave the state lands they occupied or abandon cultivation of these lands
for any reason.10 Peasant migration was carefully regulated by the Otto-
mans. In fact, Ottoman authorities recognized and punished those forces
(i.e., abusive provincial officials) who caused peasants to migrate. The

6 Rafeq, “The Syrian ʿulama, Ottoman law, and Islamic shariʿa,” Turcica 26 (1994): 9–32;
Mundy & Saumarez Smith, Governing Property, 32–37; and Mundy, “Islamic Law and the
Order of State.”
7 Rafeq, “The Syrian ʿulama,” 28.
8 Mundy & Saumarez Smith, Governing Property; Rafeq, “Syrian ʿulama;” and Mundy,
“Islamic Law and the Order of State.”
9 See Yasīn ibn Mustafa al-Biqaʾī al-Dimashqī al-Farādī al-Ḥanafī (d. 1684), Kitab nus-
rat al-mutagharribin ʿan al-awtan ʿan al-zuluma wa-ahl al-ʿudwan. For an in depth dis-
cussion of this latter source see Mundy and Saumarez Smith, Governing Property, 35–37
and Mundy, “Islamic Law and the Order of State,” 413–16. See also al-Nābulusī, Takhyir
al-ʿibad fi sukna al-bilad. The latter source has been reprinted with a summary translation
and analysis in French in Bakrī Aladdin, “Deux Fatwa-s du Sayh ʿAbd al-Gani Al-Nabulusi.
(1143/1731): Presentation et Edition Critique,” Bulletin Detudes Orientales 39 (1987): 7–37.
10 Lewis, “Ottoman Land Tenure,” 118; Inalcik, “Land Problems,” 223; and Inalcik, “The
Ottoman State,” 110–11.
 upholding the integrity of sharīʿa vis à vis qanūn 145

state tried to control peasant mobility in order to ensure the supply of

agricultural labor and systematize the collection of taxes.
Nevertheless, as fatāwā, several firmāns, and court records from the
period make clear, peasant desertion of the land was not an uncommon
occurrence in sixteenth- and seventeenth-century Palestine.11 According
to Singer, peasant migration was primarily motivated by the actions of
abusive officials, rather than seasonal movements in search of work. Thus,
“it was of a piece with refusals to pay taxes, attacks against officials, the
hiding of portions of the harvest, cultivation of hidden plots, and other
such actions.”12 There were also natural and economic factors that pro-
moted migration, including exhaustion of the land, famine, epidemics,
and heavy taxation. Since shortage of available lands was not an issue,
peasants frequently resorted to abandoning their lands, often in order to
escape taxation.13
Imperial firmāns contained strict orders to provincial administrators
that they should control peasant movement. However, this had to be done
within the bounds of certain defined laws and conditions. A peasant who
abandoned his/her land and was then discovered living elsewhere could
be forcibly returned to his/her previous residence if it could be proven
that he/she had been absent for less than ten years. In cases in which
the usufruct holder passed away, his/her children (usually the son) could
be compelled to return. However, if more than ten years had passed, the
peasant could legitimately be registered in his/her new village. One of the
government’s main concerns was the prompt and efficient collection of
necessary revenues. If a villager was not registered in his/her new village
and ten years had passed, he/she could not be forced to return to his/
her original village, but the peasant was obliged to pay the required taxes
(including the qasr al-faddān, the ʿushr, and the necessary grain-tithes and
taxes) for having abandoned the land that he/she cultivated.14 Ultimately,
the Ottomans could not (and did not) prevent people from moving, but
they did impose fines in a bid to discourage migration and try to reclaim
lost revenues. Tīmār-holders, as Singer points out, were often keen on

11 Amy Singer’s “Peasant Migration: Law and Practice in Early Ottoman Palestine,” New
Perspectives on Turkey 8 (1992): 49–65 provides an analysis of the kanunnames and court
records pertaining to peasant migration in sixteenth- and seventeenth-century Palestine.
12 Ibid., 49.
13 Inalcik, “The Ottoman State,” 165–66.
14 Heyd, Ottoman Documents on Palestine, 56–57; and Mundy, “Islamic Law and the
Order of State,” 400–404.
146 chapter four

exacting such financial punishments on cultivators who abandoned the

land.15
Certain fatāwā from the period, however, challenged this official Otto-
man view. According to al-Ramlī, for example, while peasants could not
continue to hold the land if they did not properly and efficiently cultivate
it, they could also not be compelled, against their will, to remain on the
land or be forcibly returned to it once they left it. In this way he not only
challenged the institutions, policies, and persons that sought to exploit
peasants, but he also limited the control of the sharecropping agreement
over the peasant. Referring to the qasr al-faddān tax, al-Ramlī attacks the
tax as contradictory to the teachings of Islam in that it limits the inherent
right of Muslims to choose their home. When asked about the lawfulness
of imposing the qasr al-faddān on a group of people who left their vil-
lage homes due to oppression and now were being forced to return, he
replies:
Their payment of this [tax] is oppressive (taklīfahum bi dhalaka ẓulm) as
stipulated by religion, and its horridness (shanāʿa) should not take place
amidst Muslims. The believer is the prince of his own soul (amīr nafsahu),
and he has a right to live in any village he wishes. I have known some
ʿulamāʾ of Damascus . . . such as Shaykh Taqiyy al-dīn al-Ḥusnī the Shāfiʿī,
who composed a treatise on this subject, judging [a person] of ahl al-dīwān
who commits such an act as being a sinner and his action as being immoral
( fāsad) . . .16
According to Mundy, Ottoman Syrian jurists often did not directly chal-
lenge Ottoman law per se on the issue of peasant mobility; many of the
cases they expressed opposition to were in fact more extreme cases that
did not necessarily challenge qanūn (i.e. ones that involved oppression
or ones in which peasants were accused of being absent from a particu-
lar village for a period that exceeded ten years).17 While the above case
certainly refers to one of peasant flight due to oppression (which state
law itself was sympathetic too), al-Ramlī’s blanket statement on the “hor-
ridness” of the tax is broad and all encompassing and is not just limited
to cases of peasant desertion due to subjugation by officials. By specifi-
cally labeling any member of ahl al-dīwān as a “sinner” for committing
such an act, al-Ramlī challenges the broader Ottoman administrative/

15 Singer, “Peasant Migration,” 52.

16 Ramlī, Al-Fatawa al-khayriya, 2:167.
17 Mundy, “Islamic Law and the Order of State,” 405–16.
 upholding the integrity of sharīʿa vis à vis qanūn 147

government apparatus (and the laws supporting it) that seeks to limit
peasant movement. The imposition of qasr al-faddān, furthermore, is
described by al-Ramlī as violating a peasant’s individual rights. As indi-
cated in the above fatwā, al-Ramlī was not the only ʿālim or scholar in
the region who expressed opposition to this tax and those who sought to
enforce it. In fact, his opinions on the subject were shaped by Shāfiʿī juris-
prudence, which often proved less tolerant of such state encroachments.
Muftīs expressed opposition to qasr al-faddān when it was applied
to non-Muslims as well. Consider the following fatwā from al-Nābulusī
regarding a sipāhī who wants to impose the qasr al-faddān on dhimmīs:
Question: There are two dhimmīs who used to live in Damascus, later to
their fathers since a period of more than one hundred and forty years. The
sipāhī of a certain village . . . is alleging wrongfully that the said two dhimmīs
are indebted with certain uncollected taxes on their lands in the said village,
alleging that their ancestors used to have lands there, and he calls this tax
‘qasr al-faddān.’ The fact is that they and their ancestors never lived in the
said village and never had a property in it, and they had never been taxed
for such dues. Shouldn’t the sipāhī be prohibited from interfering with the
dhimmīs in this matter? Are they not under obligation to pay anything of
the kind . . . ? . . .
Response: . . . the said sipāhī of the said village has to be prohibited from
interfering with the two dhimmīs in this matter. They are not under any
obligation to pay him any such [tax], and there is no significance to his
allegations.18
The following fatwā highlights al-Ramlī’s position on the issue of
mobility:
Question: There is a sulṭānīya land or waqf in the hands of farmers who have
cultivated the land for years. Do they lose the right of cultivation for other
than a misdemeanor ( junḥa) as long as they are steadfast in its cultivation
and responsible for what is on [the land]? If one of its farmers decides to
transfer his possession of the land to another farmer, is the farmer’s cessa-
tion ( farāgh) of the land permissible and is the farmer to whom the pos-
session is ceded allowed to have the sharecropping agreement? If one of
these men leave the sharecropping agreement of his land share at rest for
two years in order for the desired crop returns to be yielded, must he refrain
from the land and will the proceeds of the land go to someone else?. . . .
Response: The farmers should not refrain from the land except if doing so
is aimed at being economical (mutawaffir), and, in that case, the farmer’s

18 Fatawa al-Nabulusi, Zahiriya 2684, fol. 131.

148 chapter four

absence from the land is appropriate and it accomplishes good and he does
not do anything but good so there is no objection [to this action]. The man
to whom possession was ceded has the right to the sharecropping agree-
ment. The farmers must not refrain from the land for other than a misde-
meanor they may commit upon the land since they undertook cultivation
of the land. And it won’t be held against the person who leaves the land for
one or two years in order for the desired crop to be yielded and he won’t be
forbidden and he won’t have to pay another . . . and God knows best.19
Al-Ramlī embraces the cultivator’s rights to freedom of movement and
judgment and is opposed to those forces that hindered such rights. A
peasant could not be forced to remain on the land if he/she decided
that transferring its possession (not ownership) or leaving the land for a
specific period of time could yield economic benefit. On this latter issue,
al-Ramlī is most likely referring to allowing the land to remain fallow in
order to increase future crop yields. ʿUbaydu’llah ibn ʿAbd al-Ghānī also
expresses his opposition to forcing peasants to dwell in a certain place in
order to take care of the dwelling or cultivate the land; he refers to such
forms of subjugation as “haram.”20 In the case of a maska holder who left
cultivation rights to his stepbrother who no longer wanted to cultivate the
waqf after several years of doing so, Ismāʿīl ibn ʿAlī al-Ḥāʾik rules that the
landlord could not coerce the stepbrother to sow the land.21 The law is
also clear that peasants are not ‘owned’ by tīmār officials. Thus, in a case
involving cultivators who moved from one tīmār to another and the previ-
ous tīmārī claims that he is entitled to half of the annual ratio (qism) paid
to the new tīmārī given that the farmers who sowed the new land were
“his peasants,” Muḥammad al-ʿImādī rules that the entire payment should
go to the second tīmārī as the peasants sowed the crop on his land.22
As indicated in the above fatwā, al-Ramlī is also critical of attempts to
force the peasantry to return to the land that they permanently abandoned
due to subjugation.23 The seventeenth-century muftī al-Ḥāʾik also points
out that the children of sharecroppers and/or tenant cultivators could not
be forced to return to the land that their parents had abandoned.24 It is
evident from the fatwā literature that various state officials attempted to

19 Ramlī, Al-Fatawa al-khayriya, 2:152. Al-Ramlī issues other fatāwā emphasizing the
cultivator’s right to freedom of movement and judgment (2:151, 153, 212).
20 Al-Nur al-badi fi ahkam al-aradi, Zahiriya 4400, fol. 146a.
21 Bab mashadd al-maska, Zahiriya 5677, fol. 9b.
22 Al-Nur al-mubin fi fatawi al-ʿImadiyin, Zahiriya 7508, fol. 72b.
23 Ramlī, Al-Fatawa al-khayriya, 1:92.
24 Fatawa bani al-ʿImadi, Zahiriya 5864, fol. 146b.
 upholding the integrity of sharīʿa vis à vis qanūn 149

forcibly control peasants’ actions. For example, in a late seventeenth/early

eighteenth-century fatwā issued by Muḥammad al-ʿImādī, the ustādh al-
qariya (village head appointed by the treasury) tries to force a man liv-
ing for over thirty years in another village to return to his (the official’s)
village, alleging that this was in fact his original home (even though the
individual owned no property in this other village). Al-ʿImādī rules against
the ustādh’s actions (presumably based on the number of years that have
passed rather than any evidence that the peasant had been oppressed and
therefore justified in fleeing his ‘original’ home) and highlights that the
said man has the freedom to live wherever he chooses.25
As al-Ramlī highlights, a peasant who leaves the land for one or two
years without cultivating it should not lose possession of the land and
should not be subject to payments of any sort (this was in line with Otto-
man law); the only situation under which a cultivator should refrain from
the land is if he/she commits a ‘misdemeanor’ or, in other words, diverts
the use of the land so that it affects regular production or its mīrī nature. In
line with Ottoman law, peasants were not legally entitled to leave the land
idle for three or more years. ʿUbaydu’llah ibn ʿAbd al-Ghānī emphasizes
this repeatedly in his eighteenth-century legal treatise on land. Should the
land be left idle for three or more years, the cultivator could lose his/her
usufruct rights to another.26
Al-Nābulusī also addresses the issue of peasant abuse and the right of
peasants to choose their abode in a long fatwā dated between the late
seventeenth and early eighteenth century.27 At the heart of his fatwā are
three issues: peasant mobility, sipāhī abuse of power, and individual rights
and the practice of faith. Unlike al-Ramlī, al-Nābulusī does not address in
detail issues pertaining to the productivity of the land. He also expands
upon the notion of freedom of movement as an inherent individual right
for peasants.
Al-Nābulusī’s fatwā is a long detailed response to a question initially
posed to both the Ḥanbalī muftī of Damascus, Abu al-Mawāhib al-Ḥanbalī
(d. AH 1126/AD 1714) and the Shāfiʿi muftī, Aḥmad al-Gazzī (d. AH 1143/
AD 1730) regarding the issue of peasant mobility. The question concerns
two peasants originally from a village (Asqufiya) in the Golan region of

25 Al-Nur al-mubin fi fatawi al-ʿImadiyin, Zahiriya 7508, fols. 70b, 71a.

26 Al-Nur al-badi fi ahkam al-aradi, Zahiriya 4400, fols. 140a, 147b, 150a.
27 The fatwā is reprinted with a summary translation in French and analysis in Aladdin,
“Deux Fatwa-s du Sayh ʿAbd al-Gani Al-Nabulusi.”
150 chapter four

Syria who emigrated to another village (al-Suq) in the valley of Barada.

After a long period of residence in al-Suq, the two peasants wanted to
return to their original village and work the land. The sipāhī of al-Suq
forbade the two from returning to Asqufiyya, clearly because he did not
want to lose two taxpaying residents.
The sipāhī called upon the local authorities to seize the men and
imprison them (in a manner, as the fatwā indicates, not in line with sharīʿa
law). Once in jail, the sipāhī threatened the two peasants with death if
they did not pay the fine imposed (according to him by the ḥākim al-ʿurf
or local governor) for their crime. The peasants believed him out of fear
and were eventually released from jail and returned to al-Suq, consent-
ing to pay the sipāhī a portion of the amount owed with the rest of the
amount being recorded as a ‘tamassuk’ or a debt owed him by the peas-
ants. The fatwā indicates that the ḥākim al-ʿurf received no part of these
payments and it was the sipāhī himself who imposed such payments on
the peasants.
The questions posed in the fatwā are as follows: Was the sipāhī entitled
to such payments and could he impose such fines on the peasants? Should
he return what he collected from the peasants? Did he have the right to
compel the peasants to stay in the village of al-Suq?
As the fatwā stipulates, both the Ḥanbalī and Shāfiʿi muftīs were against
the sipāhī’s actions, indicating that he was not entitled to any payment
and that he should return what he received. In addition, his actions
towards the peasants were considered oppressive as individuals cannot
be forced to live in a particular place. Al-Nābulusī elaborates by invoking
mention of Khayr al-dīn al-Ramlī and his opposition to qasr al-faddān.
After discussing al-Ramlī’s fatāwā on the subject at length, al-Nābulusī
highlights how forcing peasants to remain in a particular village (whether
through oppressive forms of taxation or through incarceration) is a dread-
ful injustice which should not be imposed on any individual, be he a Mus-
lim, Christian or a Jew.28
For al-Nābulusī, a villager who migrates due to injustice is not only
legally justified in leaving his/her village, but has a religious obligation
to abandon a place where he/she is not able to worship properly due to
hardship and oppression:

28 Ibid., 32.
 upholding the integrity of sharīʿa vis à vis qanūn 151

. . . if someone who believes in Allah finds it difficult to worship in the coun-

try where he lives and is prohibited from practicing his religion, he must
migrate to a country where he feels he can practice his religion and worship
Allah . . . The Prophet said, ‘Whoever escapes from one place to another . . . in
an attempt to save his religion shall go to heaven.’29
Al-Nābulusī provides several examples from the Qurʾān which illustrate
how migration is in fact linked to preserving the faith.
Given that oppressive acts hindered the practice of faith, Nābulusī con-
cludes that, in this particular case, the sipāhī’s actions as well as the legal
establishment’s role were un-Islamic:
If you are fully cognizant of what we have just said and if you truly believe
it, then you will be stunned at the insolence ( jarāʾa) of the sipāhī vis-à-vis
Allah Almighty. For this man filed a lawsuit with the [sharīʿa] judge against
two Muslim men to have them go back to his village, despite their will to
live in their home country. Only in a place where Islam is in a weak posi-
tion can a lawsuit which is oppressive and in violation of the law occur
(wa min ḍuʾf al-islām fī bilād samaʿat minhu fīha hadhā al-daʾwa bi-l-ẓulm wa
al-taʿaddī). This is why the sipāhī’s case did not get the stern punishment it
deserved in order to deter him and others like him.30
Thus, aside from being critical of the sipāhī, who clearly challenged sharīʿa
law, al-Nābulusī (going a step further than al-Ramlī) suggests that the root
of the problem may in fact be the legal establishment itself, which did not
adequately uphold Islamic law by preventing and punishing such actions
in the first place. He concludes that the sipāhī should face “long-term
imprisonment” for his actions and that “great rewards will be bestowed
upon Muslim rulers who observe such forms of punishment, and God
knows best.”31
Thus, while muftīs were concerned with the productivity of the land,
they also upheld what seemed to be certain inalienable peasant rights—
the right to freedom of movement and the right to resist certain forms of
intolerable subjugation (such as abusive taxes or fines). The legal literature
verifies, moreover, that jurists expressed opposition to all components of
the law(s) regulating peasant mobility—the qasr al-faddān, the forcible
return of peasants, and attempts by land overseers to compel cultivators
to sow lands against their will.

29 Ibid., 33.
30 Ibid., 34.
31 Ibid., 37.
152 chapter four

While muftīs upheld peasants’ freedom of movement, they were also

adamant that cultivators who abandoned the land or transferred their
usufruct rights to another out of their own free will were no longer enti-
tled to reclaim such rights. For example, in the case of a man who trans-
ferred his usufruct rights to another and then wanted to reclaim these
rights after ten years, ʿUbaydu’llah ibn ʿAbd al-Ghānī maintains that he is
not entitled to do that.32 While tenant cultivators or sharecroppers were
legally entitled to abandon a land on their own free will, they also for-
feited their cultivation rights by doing so.33 A cultivator who idly stood
by and watched another cultivator work either waqf or state land was
also considered to have abandoned the land, thus losing any usufruct
rights to that land.34 Ultimately, permanency rights on the land hinged
on the physical act of usufruct and the byproducts of that work (trees,
structures, plants, etc.). Thus, peasants who willfully gave up cultivation
or refrained from cultivating a particular land for too long (even if legally
entitled to do so) usually lost their possession rights. The exception to
this was when peasants were forced to leave the land due to subjugation
or natural disaster (the implication here being that the departure was not
willful). In such cases, tenant cultivators could come back and reclaim
their usufruct rights.35

Women’s Usufruct Rights

Through the use of Islamic legal sources, including court records and
fatāwā, the scholarship on women in the early modern Ottoman period
has shed light on various issues regarding women’s everyday lives, includ-
ing marriage and divorce, childrearing and guardianship, sexuality and
reproduction, family life, violence, and, property rights.36 The available
research on women’s property rights in Islam has focused largely on wom-
en’s access to property through various channels, including dowry, buying
and selling, inheritance, and/or as waqf beneficiaries. Not surprisingly,

32 Al-Nur al-badi fi ahkam al-aradi, Zahiriya 4400, fol. 142b. See also fol. 149b.
33 Ibid., fol. 150b.
34 Ibid., fols. 149b, 151a.
35 Ibid., fol. 138a.
36 Amira El-Azhary Sonbol, ed., Women, the Family, and Divorce Laws in Islamic History
(Syracuse: Syracuse University Press, 1996); Madeline C. Zilfi, ed., Women in the Ottoman
Empire: Middle Eastern Women in the Early Modern Era (Leiden; New York: Brill, 1997);
Tucker, House of the Law; Peirce, Morality Tales; and Sonbol, ed., Beyond the Exotic.
 upholding the integrity of sharīʿa vis à vis qanūn 153

this literature has focused predominantly on the lives of upper class urban
women in different regions of the Empire.
The following analysis provides a glimpse into the laws that governed
women’s usufruct rights on state and waqf lands. Ultimately, the issue
of women’s usufruct rights on arable lands sheds light on the interplay
between qanūn and sharīʿa as applied by Muslim jurists in their definition
of possession rights on both state and waqf lands.
Our knowledge of the lives of peasant women during the early modern
period remains sketchy at best. The most comprehensive insight we have
into the lives of peasant women in the Ottoman period remains Judith
Tucker’s work on Egypt, but the focus here is predominantly on the nine-
teenth century.37 The limited research on peasant women is in part due to
the fact that legal sources from the period tend to be biased in favor of the
urban classes.38 Often times, jurists and judges did not hide their own con-
tempt for the ways of the peasantry.39 When court records and fatāwā do
address matters pertaining to peasant life, it is usually in reference to their
taxation rights and obligations, their role as cultivators/sharecroppers/
tenants (with references to women being limited), inheritance and prop-
erty disputes (usually not over arable lands though), and various crimes
committed by or against the peasantry. Although it is not unusual for state
sources, such as firmāns and mühimmes, to address issues relating to peas-
ant life, most of the problems deal with matters that were integral to the
well-being of the state—such as taxation, banditry, rebels, supply, and
demand of basic foodstuffs, security, etc. Given the nature of the sources,
research on early modern peasant life in the empire has generally focused
on such issues as: peasant opposition to state policies and officials,40
policies/laws regulating peasant mobility,41 rural-urban networks,42 tax-
ation policies vis-à-vis the peasantry,43 the rights and obligations of

37 Judith Tucker, Women in Nineteenth Century Egypt (Cambridge: Cambridge Univer-

sity Press, 1985), 16–63.
38 Doumani, “Endowing Family,” 17.
39 Tucker, House of the Law, 164, 176.
40 Singer, Palestinian Peasants.
41 Singer, “Peasant Migration,” 49–65. See also Mundy and Saumarez Smith, Governing
Property, 31–37; and Mundy, “Islamic Law and the Order of State.”
42 Doumani, Rediscovering Palestine.
43 Research done on taxation (although some not exclusively focused on peasantry)
include: Darling, Revenue Raising and Legitimacy; Singer, Palestinian Peasants; Lewis,
“Ottoman Land Tenure”; and Cohen and Lewis, Population and Revenue.
154 chapter four

peasants on publicly owned lands, and their subversion of state land poli-
cies (often with the support of local courts).44
Although the existing scholarship provides insight into the role of peas-
ant cultivators on arable lands, particularly as stated in Ottoman law and
negotiated by local courts, the majority of the cultivators referred to are
either explicitly or implicitly male—there has been very limited research
done on the access which wives, daughters, and widows had to such lands.
With the majority of arable lands in Ottoman Syria being under the con-
trol of the state or designated as religious endowments, most peasants had
only usufruct rights to the lands they farmed.
Various jurists of seventeenth- and eighteenth-century Ottoman Syria
provide valuable insight into how the law treated women’s usufruct rights
to state and waqf lands. It is clear from their legal opinions that the rules
governing women’s possession rights differed in important respects from
laws which defined women’s inheritance of property rights. The distinc-
tions between the two are examined in more detail below.

Women’s Access to Private Property

Through the use of court records, scholars of Ottoman history have shed
light on the property rights which women have enjoyed in various regions
of the empire. The literature on women and waqf in particular has pro-
vided valuable insight into how women acquired, managed, and transmit-
ted property. Research on Ottoman towns such as Tripoli, Nablus, Bursa,
Kayseri, Damascus, and Aleppo has documented how women were not
only beneficiaries of waqf properties, but were also actively involved in
founding and managing such properties as well.45 The creation of fam-
ily endowments has been an important vehicle through which women
have gained access to various kinds of property. Explaining how such

44 Cuno, Pasha’s Peasants, 72–78; and Rafeq, “City and Countryside,” 307–12.
45 Doumani, “Endowing Family”; Deguilhem, “Consciousness of Self,” 102–15; Suraiya
Faroqhi, Men of Modest Substance: House Owners and House Property in Seventeeth-Century
Ankara and Kayseri (Cambridge: Cambridge University Press, 1987), 195–99; Fay, “Women
and Waqf,” 38–39 & 42; Gerber, “Position of Women in Ottoman Busa,” 238, and “The Waqf
Institution in Early Ottoman Edirne,” 37; Jennings, “Women in Early 17th Century Otto-
man Judicial Records,” 105–07; Meriwether, “Woman and Waqf Revisited,” 131–50; Leslie P.
Peirce, The Imperial Harem: Women and Sovereignty in the Ottoman Empire (Oxford: Oxford
University Press, 1993), 198–210; Tucker, Women in Nineteenth Century Egypt, 95–96.
 upholding the integrity of sharīʿa vis à vis qanūn 155

endowments could bypass some of the rigidities of Islamic inheritance

laws, Doumani states:
Family endowments were flexible because, first, the endower could alien-
ate his or her entire estate, not just the one-third maximum allowed for
gifts . . . Second, the endower could choose what individuals or whole lines of
descent can or cannot benefit from the use and the revenue of the endowed
property . . . Finally, the endower could choose who will have the right and
responsibility of managing this property . . .46
While this flexibility could certainly result in women being disinherited,
research has revealed that more often than not it resulted in women
gaining greater access to family resources than they received through
inheritance.47
Whether established by men or women, most family endowments
comprised urban forms of real estate or lands surrounding the immedi-
ate outskirts of towns (such as orchards, olive groves, vegetable gardens,
and vineyards).48 Similar to urban properties such as houses, shops, and
warehouses, trees and irrigated gardens were considered private property
(or mulk)—they could be sold, endowed, bought, leased, etc. As Dou-
mani points out, the legal status of these lands worked to the advantage
of women because they could gain access to such property through inheri-
tance, marriage or purchase.49 In addition, the advantage of orchards and
groves was that they could be managed by an absentee owner. Thus, “even
if women did not leave their homes, all that was really required was the
collection of rent and the sale of harvests to large merchants.”50
Research on women’s property holdings during the Ottoman period
indicates that for the most part, they were owners of urban real estate
or small plots of land surrounding urban centers. The endowing of large
tracts of agricultural land was usually done by the Ottoman state (usu-
ally to fund state projects) and, later on, provincial notables (more by
the eighteenth and nineteenth centuries) in a bid to secure control over

46 Doumani, “Endowing Family,” 7–8.

47 Doumani, “Endowing Family,” 23–31; Meriwether, “Women and Waqf Revisited,”
137–40; and Tucker, Women in Nineteenth Century Egypt, 95–96.
48 Meriwether, “Women and Waqf Revisited,” 134; and Doumani, “Endowing Family,” 36.
49 Much of the existing scholarship indicates that property endowed by women was
usually acquired through inheritance rather than purchase. See, Faroqhi, Men of Mod-
est Substance, 180; Gerber, “Position of Women in Ottoman Bursa,” 240; and Jennings,
“Women in Early 17th Century Ottoman Judicial Records,” 99. For exceptions to this, see
Meriwether, “Women and Waqf Revisited,” 134.
50 Doumani, “Endowing Family,” 36.
156 chapter four

the rural surplus.51 However, it was not unheard of for women to have
property rights over arable lands. In his study of Bursa, Gerber documents
cases of women buying and selling agricultural lands.52 Judith Tucker also
discusses in her research on Egypt how some peasant women, both before
and after 1858, held usufruct rights to certain, usually small-scale, arable
lands (kharājīya) which they sold and mortgaged.53 Elite women of impe-
rial households, moreover, also had access to agricultural lands via waqf
endowments—their role as beneficiaries, endowers, and mangers of such
properties has been well documented.54

The Transfer of Usufruct Rights

Our understanding of women’s access to property via waqf endowments
(or other means for that matter) is largely limited to women of the urban
middle and upper classes. There has been far less research on peasant
women’s property rights or women’s cultivation rights on state or waqf
arable lands.55 Even those peasants who did own land and/or other prop-
erty did not regularly use the Islamic courts to record property transmis-
sion during the period at hand.56 Given that the majority of peasants held
the status of cultivators on state or waqf agricultural lands, the question
of women’s usufruct rights on such lands becomes particularly pertinent.
Legal sources from the period indicate that they were involved in the cul-
tivation of grain producing lands and often times treated such lands as
their own property.57 In her analysis of nineteenth-century Egypt, how-
ever, Tucker points out that women were virtually excluded from holding
usufruct rights to state (mīrī) lands. Only under certain circumstances,
including when they had permission from male relatives, when there were
no surviving sons, or when the father during his lifetime ceded the land to
his daughter, could women acquire control of such lands.58

51 Even local notables, however, could have a difficult time endowing grain producing
lands. According to Meriwether, in Aleppo, notables involved in money-lending and tax-
farming were not able to get ownership rights over such lands in order to convert them to
endowments. Meriwether, “Women and Waqf Revisited,” 134.
52 Gerber, “Position of Women in Ottoman Bursa,” 233, 235–36.
53 Tucker, Women in Nineteenth Century Egypt, 51.
54 Mary Ann Fay, “Women and Waqf.”
55 For an overview of peasant women’s property rights in Egypt during the nineteenth
century, see Tucker, Women in Nineteenth Century Egypt, 43–52.
56 Doumani, “Endowing Waqf,” 17.
57 Gerber, “Position of Women in Ottoman Bursa,” 236; Ibn ʿAbidīn, Al-ʿUqud, 1: 183;
Fatawa al-Nabulusi, Zahiriya 2684, fol. 190.
58 Tucker, Women in Nineteenth Century Egypt, 48–49.
 upholding the integrity of sharīʿa vis à vis qanūn 157

The laws governing the transmission of usufruct rights to women on

grain producing lands differed from the inheritance laws (shaped largely
by Islamic law) that governed the transmission of private property.
According to Islamic property law as laid out in the Qurʾān, an individual
can bequeath one-third of his/her property to whomever he/she wishes,
while the remaining two-thirds had to be divided up amongst various fam-
ily members. In her work on Aintab, Leslie Pierce examines the property
disputes among family members that were brought to court as a result of
such laws.59 She explains how these rules resulted in certain advantages
and disadvantages for family members. On the one hand, they ensured
the distribution of wealth among many rather than a limited number
of individuals, protecting the rights of women (although they usually
received smaller shares than men), younger sons, and orphans. However,
this often resulted in the fragmentation of property and limited what par-
ents could bequeath to their children.60 Family members, however, used
various strategies to ensure that lands and/or other properties would not
be divided up, such as designating an estate as a gift to a particular child
prior to the parents’ death (fathers often did this for their son(s)) or estab-
lishing family waqfs (waqf ahlī).61
The Islamic inheritance laws relating to property were consistently
challenged by customary practices that privileged traditions of patriarchal
authority. According to Pierce,
the perceived need to protect male control of property furnished a practi-
cal argument for legitimate infringement of the ‘technicalities’ of the law,
in which the denial of one set of rights (e.g. women’s) could be justified
by pointing to a greater benefit for all, including those divested of their
rights . . .62
She points out, however, that beginning in the mid-sixteenth century, an
increasingly systematized Ottoman legal system emphasized the imple-
mentation of a “higher law” (or, rather, Islamic law proper) over long
existing customary practices. Essentially, this resulted in greater legal pro-
tection for women’s (and orphans’) inheritance rights to property.
The laws governing the transfer of usufruct rights differed in two impor-
tant respects from the laws regulating the inheritance of property. Firstly,

59 Peirce, Morality Tales, 209–48.

60 Ibid., 215.
61 Ibid., 215–16, 226–27, 239.
62 Ibid., 215.
158 chapter four

the transfer of usufruct rights or, as it was often referred to by jurists,

mashadd maska, was not subject to division into several shares. Secondly,
a woman’s right to inherit the mashadd maska over a particular plot of
land was more limited, in part because her status as a tenant-cultivator,
particularly on state lands, was governed more by sultanic rather than
sharīʿa law.63 Being a land based empire, the Ottomans had a practical
interest in regulating the transfer of usufruct rights on arable lands. From
the official point of view, the possession rights of a tenant cultivator could
only be inherited by sons. The law as laid out by Abū al-Suʿūd in the six-
teenth century only allowed a daughter to inherit usufruct rights from
her father if there were no existing son(s). In such cases, however, she
had to pay the tāpū resmī (‘entry fee’ imposed on any new tenant, exclud-
ing the son) and be able to cultivate the land (i.e. through a husband or
son(s)).64
For the most part, Syrian jurists of the Ottoman period did not divert
from official state law regarding women’s usufruct rights, particularly on
state lands. Muftīs such as ʿAlī al-Murādī and Ḥusayn al-Murādī in fact
make explicit reference to qanūn in their opinions on this matter. Most
jurists agree that upon the death of the usufruct holder, cultivation rights
on state and waqf lands should not be divided and should be transferred
first and foremost to the son of the deceased and not the daughter.65 In
practice, it was also more common for the son or, in some cases, another
existing male relative (if there was no son) to assume usufruct of the
land.66 The rationale behind this was that usufruct rights should go to
the individual(s) most capable of farming the land.67 Given this logic, it
was not unusual for muftīs, in cases when there was no son(s), to privi-
lege other male relatives—such as brothers—over the deceased usufruct
holder’s daughter(s).68 In accordance with state law, muftīs highlighted
that when a man with a mashadd maska died, the line of descent followed

63 Gerber, “Position of Women in Ottoman Bursa,” 235.

64 Pierce, Morality Tales, 238. According to Ḥāmid al-ʿImādī, the tāpū must be paid even
if tithes and fees are levied. See Ibn ʿĀbidīn, Al-ʿUqud, 2:207. For more on the Ottoman
state’s willingness to allow women to acquire tenancy rights over agricultural lands, see
Hedda Reindl-Keil, “A Woman Timar Holder in the Ankara Province during the Second
Half of the Sixteenth Century,” Journal of the Social and Economic History of the Orient 40
(1997): 221–26.
65 Bab mashadd al-maska, Zahiriya 5677, fol. 9b; Fatawa al-Nabulusi, Zahiriya 2684,
fol. 75; Majmuʾ fatawi al-Muradiya, Zahiriya 2642, fols. 325, 330, 331, 332; and al-Nur al-badi
fi ahkam al-aradi, Zahiriya 4400, fols. 139b, 140b, 141a, and 144a.
66 Pierce, Morality Tales, 238–39.
67 Bab mashadd al-maska, Zahiriya 5677, fol. 9b.
68 Ibid.
 upholding the integrity of sharīʿa vis à vis qanūn 159

in this order—son(s), daughter(s), brother (from the same father), sister,

father, mother, and then to relatives who gained the maska by paying the
tāpū resmī.69
Ḥāmid al-ʿImādī’s fatāwā (with accompanying commentary from Ibn
ʿĀbidīn) provide a detailed description of the rules governing the inheri-
tance of mashadd maska, explaining the rights of mothers, daughters,
sons, cousins, and other relatives. Although the line of descent for assum-
ing usufruct rights makes no mention of the deceased’s wife, in a fatwā
regarding a wife and a cousin who were delegated shares of a maska (the
wife’s shares being less) on a waqf land after the maska holder’s death,
al-ʿImādī rules that such a division is legal. In his commentary on the
fatwā, Ibn ʿĀbidīn goes further and emphasizes that in later years, the
wife (when there are no children) has “more rights than anyone else” in
assuming the maska, provided that she pay the tāpū.70
There is evidence that Ḥāmid al-ʿImādī takes a more flexible stance
than the state and other muftīs on the right of women to inherit the
mashadd maska. While the seventeenth-century Damascene muftī Ismāʿīl
al-Ḥāʾik is adamant that cultivation rights on state lands do not transfer to
a daughter after the death of the usufruct holder (particularly when there
is an existing son(s)), he points out that a daughter is nonetheless entitled
to a portion of the kirdār (be it plants, trees and/or structures) left by the
deceased on the land he worked.71 Unlike al-Ḥāʾik, Ḥāmid al-ʿImādī draws
a connection between kirdār and cultivation rights on the land. Although
al-ʿImādī emphasizes that a daughter must usually pay the tāpū resmī to
assume control of the maska, he is clear that in cases when the deceased
has a kirdār on the land he cultivated (this usually meant trees, vines,
or plants), then the daughter is entitled to some share of the usufruct or
lease, even if there is an existing son(s). While the son or sons is legally
entitled to more shares, he argues that the latter does not have the right to
rob the female children of their legal rights to the land.72 If the deceased
possessed a mashadd maska without a kirdār, however, the rights of
female children could be more precarious when there was an existing son
or sons. When confronted with the question of whether women, gener-
ally speaking, could inherit the mashad maska or not, al-ʿImādī not only

69 Ibn ʿĀbidīn, Al-ʿUqud, 2:205, 207, 208, 209; and al-Nur al-badi fi ahkam al-aradi,
Zahiriya 4400, fol. 144a.
70 Ibn ʿĀbidīn, Al-ʿUqud, 2:205.
71 Bab mashadd al-maska, Zahiriya 5677, fol. 9b.
72 Ibn ʿĀbidīn, Al-ʿUqud, 2:205.
160 chapter four

provides an explanation of how the legal establishment (specifically his father

ʿAlī al-ʿImādī and other ʿImādī predecessors) treated the issue, but also, in
the process, upholds women’s inheritance rights to the mashadd maska.
He states, “neither I nor . . . my predecessors decreed that women can or
cannot inherit [the maska], because it is either a right or it is not, so if it
is, then all the heirs, males and females, would inherit and if it isn’t, then
no one, not the males or the females, would inherit it.”73 While it is a right
that women have, he emphasizes that traditionally maska rights do not
devolve to women because “women are not farmers.”
Nevertheless, in this same fatwā, he stipulates that if the deceased left
behind soil (turāb), dung or manure (sirqīn), or plants (ghirās), then a
woman would be entitled to inherit a share of this as it is considered pri-
vate property. Furthermore, citing his late father ʿAli al-ʿImādī, he states
that a woman can inherit in the maska if the deceased left plants on the
land. The benefits which daughters gained when the deceased left behind
a kirdār would seem to indicate that legal discrimination against daugh-
ters as usufruct holders was less pronounced than that documented in
more central regions of the empire.74 Linking kirdār to women’s property
and even usufruct rights was a legal mechanism that protected family
resources invested in the land, particularly in situations when more dis-
tant male relatives acquired a share of the maska.
It would appear from the fatāwā that it was not unheard of for women
to gain usufruct rights to arable lands from deceased male relatives with-
out paying the tāpū. The law, however (particularly in absence of kirdār),
usually upheld that payment of the tāpū was necessary regardless of how
many years the woman(en) worked the land.75 Once a woman paid the
tāpū, however, her rights to the land were well protected, particularly from
competing claims, be it from family members or outsiders.76 For example,
in a case in which usufruct rights to a waqf land were transferred to the
deceased’s mother, the latter had secure rights to the land and could not
be removed by the mutawallī as long as she paid the tāpū.77
Women could also gain usufruct rights to the land during her husband’s/
father’s lifetime if, for example, the latter transferred the maska to his wife

73 Ibid.
74 Gerber, “Position of Women in Ottoman Bursa,” 235.
75 Ibn ʿĀbidīn, Al-ʿUqud, 2:210.
76 Ibid., 2:209, 211.
77 Al-Nural-badi fi ahkam al-aradi, Zahiriya 4400, fol. 143a.
 upholding the integrity of sharīʿa vis à vis qanūn 161

or daughter while still alive.78 By doing this, a woman could potentially

circumvent having to pay the tāpū while at the same time enjoy legal
protection for her usufruct rights. Al-Nābulusī details a case involving a
deceased husband, with an under-aged daughter and wife, who left behind
shares in seedlings, some land, and a mashadd maska. The daughter’s
guardian challenges the wife (mother of the girl) for the daughter’s share
of this inheritance. The wife, who controls her husband’s assets, claims
that she purchased all of the latter, including the mashadd maska from
her husband during his lifetime and he, in turn, released control of the
maska for her benefit at the time of the sale. With the backing of two male
witnesses who confirmed her claims and an oath on her part, the Ḥanafī
judge ruled in the wife’s favor. Al-Nābulusī declares that the judge’s ruling
should be put into effect.79
A daughter’s right to assume the mashadd maska upon the death of her
father was legally quite secure when there was no existing son(s).80 How-
ever, when the maska being transferred was on a waqf land, the mutawallī
had the discretion to pass the usufruct rights to another existing male
relative, such as a brother.81 Referring to a case, however (ruled upon by
ʿAlī al-ʿImādī), in which a deceased husband/father left behind a wife and
daughter and no sons, Ḥāmid al-ʿImādī decrees that the wife and daugh-
ter and no other distant male or female relatives should receive shares
in the maska (with the wife receiving fewer shares than the daughter).82
Although the fatwā is in line with official Ottoman doctrine which was
generally not in favor of dividing usufruct rights among various family
members, it challenges state law by stipulating that the wife should also
get a share of the maska. There was a realization on the part of legal think-
ers that resources invested in the land were often best protected by imme-
diate family members.83 Perhaps the ruling is also meant to provide the
widow with some financial security in the wake of her husband’s death.
Ultimately, such fatāwā helped encourage a reality whereby mashadd
maska came to be treated like freehold property, in the sense that it was
inherited by widows, surviving children, and orphans.84

78 Ibid., fol. 142a; and Ibn ʿĀbidīn, Al-ʿUqud, 2:210.

79 Fatawa al-Nabulusi, Zahiriya 2684, fol. 102a.
80 Majmuʾ fatawi al-Muradiya, Zahiriya 2642, fol. 327.
81 Ibn ʿĀbidīn, Al-ʿUqud, 2:206.
82 Ibid.
83 Ibid., 2:207.
84 Rafeq, “City and Countryside,” 309.
162 chapter four

In this same fatwā, which is approximately two pages long, al-ʿImādī

draws an important distinction between the inheritance laws governing
the land, the usufruct rights to the land, and the plants and construc-
tion on the land. His reply is then followed by a detailed elaboration by
Ibn ʿĀbidīn (who refers to laws decreed by Ismāʿīl al-Ḥāʾik) on the role of
the land supervisor (the state representative or, in the case of a waqf, the
mutawallī) in controlling the transfer of mashadd maska on tīmār and
waqf lands:
. . . the sultan-owned land (al-arādī al-sulṭānīya) belongs to bayt al-māl and
cannot be inherited, but whomever the sultan appointed is responsible to
pass it to those men and women who can utilize it. As for the construction
and plants on it, they belong to those who own them and are to be divided
among the heirs. I say . . . Shaykh Ismāʿīl decreed as well about this in the case
of a man with a mashadd maska on a tīmār land who died leaving behind a
son and a daughter, it should be passed to the son only . . . and in the case
of a man who died leaving behind daughters and had a mashadd maska in
a waqf land . . . . . . . the mutawallī has the right to give it to whomever he
desires and in the case of a man who died leaving behind two daughters
and a brother and a mashadd maska for a waqf land and plants on some of
the land, he (Ismāʿīl) decreed that the mutawallī who gave the land to the
brother alone had the right to do so, but the daughters should get two-thirds
of the plants. In the case of a man who had a mashadd maska tīmārīya and
died leaving behind a son and the supervisor gave it to someone else, he
decreed that he (the sipāhī) has the right, although it is in contradiction to
what was stated previously . . . if the land was occupied with the deceased’s
possessions, it should be given to his heirs according to the rules of owner-
ship . . . but they should continue to pay what he paid in order to maintain
that right. But if it was given to someone else . . ., he is obliged to stop that
because whomever it is given to may not agree to having it stay in his land,
but that would result in harm (ḍarar) . . . It was previously stated . . . that if
the deceased had a son, he would have more right to get [the maska] than
anyone else and that is customary with all sulṭānī land and waqf land—the
mutakallim would pass it to the son for free by way of him having priority
over others. If he had a daughter, then it would be passed to her in return
for . . . the tāpū.85
The distinction which al-ʿImādī makes between the land itself, which can-
not be inherited, and the usufruct rights and kirdār, which can be trans-
ferred, is an important one. As stated earlier, it was not unusual for peasant

85 Ibn ʿĀbidīn, Al-ʿUqud, 2:206. Italics indicate where Ibn ʿĀbidīn’s commentary begins.
Al-Ḥāʾik rules that the mutawallī has flexibility in choosing a cultivator, particularly in
cases when there was no son (Bab mashadd al-maska, Zahiriya 5677, fol. 9b).
 upholding the integrity of sharīʿa vis à vis qanūn 163

cultivators with established cultivation rights (often times granted by the

law itself) to treat the land itself as if it were their own. Al-ʿImādī is also
careful to point out that the sultan’s appointed official is responsible for
transferring the land’s usufruct to men or women who can utilize it. It is
then Ibn ʿĀbidīn who elaborates, along the lines of Ottoman state law,
that sons customarily enjoyed unchallenged rights (vis-à-vis daughters
and not to mention other relatives) when assuming the mashadd maska
of a particular tīmār land and/or waqf land. He does, however, uphold
a daughter’s right to inherit the usufruct in situations when there were
no sons and when she paid the tāpū. While the mutwallī and tīmārī are
accorded flexibility in deciding who should assume maska rights upon
the death of the usufruct holder, they must be careful to distinguish
between maska and kirdār and be aware that, customarily, maska rights
were passed to the son(s). There is also an indication here that it was not
unusual for the law to bypass the rights of a daughter(s) (when there was
no son(s)) and allow another male relative to assume the usufruct of the
land. Overall, however, there is a realization that the interests of the land
are best served when an immediate family member(s) gains control over
the maska and kirdār.
In situations when a daughter refused to accept the maska left by her
deceased father (the maska holder), the mutawallī had the right to trans-
fer usufruct rights to whomever he wished (the common practice was to
give it to the father’s brother, as detailed earlier).86 Going back to the long
fatwā with accompanying commentary, Ibn ʿĀbidīn highlights, however,
that when there is an existing kirdār on the land in question, the daugh-
ter is always entitled to a share, even if she does not assume the maska
(this supports the fatāwā issued by al-ʿImādī mentioned earlier). This was
in line with sharīʿa law, which the state upheld in its application of pri-
vate property law. Interestingly, the same ruling holds that if a deceased
maska holder leaves behind a kirdār and the usufruct rights are passed
to a non-family member (presumably when there are no family members
to assume their rights), then that individual has the right to remove the
kirdār (trees and/or vines, structures). However, Ibn ʿĀbidīn cautions that
this would be harmful to the well-being of the land. Whenever possible,
legal thinkers preferred not to destroy crops or construction, although the

86 Ibn ʿĀbidīn, Al-ʿUqud, 2:207. There is another fatwā regarding two daughters who
did not want to assume their rights to the mashadd maska and in this situation it was
legal for an outsider, with the permission of the land overseer, to take over the maska
(idem., 209).
164 chapter four

law often times called for such measures in cases, for example, when a
land was transferred from one tenant to another. In the eyes of jurists,
however, the removal of existing structures or plants from the land com-
promised social harmony, stability, and productivity.87
Legal scholars also addressed the rules governing the transfer of usu-
fruct upon the death of a female cultivator with sharecropping or tenancy
rights. The fact that such a topic was broached at all indicates that this
was not an unusual situation.88 ʿUbaydu’llah ibn ʿAbd al-Ghānī maintains
that a son or daughter (in cases when there was no son) is entitled to
assume the usufruct rights of his/her deceased mother as long as he/she
pays the tāpū. Again here, the son enjoys privileged access to usufruct
rights over the daughter.89 Ibn ʿĀbidīn also explains how the transfer of
usufruct rights is governed by different rules when the deceased maska
holder is a woman rather than a man. Essentially, a daughter’s rights of
inheritance are more limited when the deceased maska holder is her
mother. According to Ibn ʿĀbidīn, not only is the daughter not entitled
to assume the mashadd maska when there is an existing son, but, even
when there is no son, the maska should not go to the daughter, but to
whomever the land overseer decides is appropriate. The purpose of such
a law seems to have been to ensure that usufruct rights were passed on
either to the son or surviving husband. This is somewhat of a change from
the mid- eighteenth century when, according to Ḥusayn al-Murādī, the
maska rights of a deceased female usufruct holder with no son or daugh-
ter, but only a mother, sister, and husband, should pass to the sister.90 As
mentioned previously, the legally recognized order of inheritance (son,
daughter, brother from father, sister, father, and then mother) upon the
death of a male maska holder did not mention the rights of the surviv-
ing wife explicitly. By allowing the mutawallī or state representative to
decide who should assume the usufruct upon the death of a female maska
holder when there is no son, Ibn ʿĀbidīn opens an important window of

87 Al-Ramlī issues fatāwā which, depending on the circumstances of the case, call for
both maintaining and removing crops/construction when the land is transferred from one
tenant to another. Usually, when the tenant and/or cultivator seems to defy the law out-
rightly or abuse his/her privileges on the land, al-Ramlī rules that all cultivation should be
removed when handing the property over. See for example Al-Fatawa al-khayriya, 1:160.
88 For an example of a fatwā referring to female maska holders on a waqf land, see
Fatawa al-Nabulusi, Zahiriya 2684, fol. 101a.
89 Al-Nural-badi fi ahkam al-aradi, Zahiriya 4400, fols. 143b, 145a.
90 Majmuʾ fatawi al-Muradiya, Zahiriya 2642, fol. 334.
 upholding the integrity of sharīʿa vis à vis qanūn 165

opportunity for the surviving husband; in fact, he specifically mentions

that in the absence of an existing son, the land should preferably revert
to the husband.91 Therefore, regardless of whether the deceased usufruct
holder is male or female, by the early nineteenth-century, there seems to
be increasing emphasis on keeping usufruct rights within the immediate
family.
Finally, regardless of whether a son(s) or daughter(s) was entitled to
assume the usufruct of a particular land, each had a ten year period dur-
ing which he/she had to claim this right. After this period passed, neither
was entitled to lay claim to such cultivation rights. In the case of a son,
however, the ten year count began from the date of his maturity and not
from the date of his father’s demise. For a daughter, however, it began
from the date of her father’s death. Thus, a daughter who assumed such
rights while still a minor would have to depend largely on her guardian
to act as her advocate.92

Jurisdiction over Waqf Lands

Legal scholars played an important role in protecting the integrity of both

state and waqf lands from abusive officials and usufruct holders who did
not fulfill their obligations. Nevertheless, they were also concerned to
defend the property rights of cultivators vis-à-vis the state in certain situ-
ations. Perhaps this is nowhere more explicit than in the muftīs’ defense
of the rights of the kharāj paying cultivator. As discussed in chapter one,
many Ḥanafī legal thinkers by the sixteenth century, in a bid to legiti-
mize the expanding arm of the state, came to equate the kharāj tax to
rent and therefore treat the kharāj payer as a tenant/sharecropper rather
than owner of the lands he/she tilled. There were muftīs, however, who
for practical and moral reasons upheld the property rights of the kharāj
payer. Consider this opinion put forth by Ibn ʿĀbidīn commenting on a
fatwā issued by al-ʿImādī:
. . . . So if the person controlling the land obtained the land through purchase
or inheritance or other means and claims that it belongs to him and he pays
the taxes (kharāj), then the ruling is in favor and against whoever is disput-
ing his ownership of the land if the former’s claim is legally sound . . . I only

91 Ibn ʿĀbidīn, Al-ʿUqud, 2:208.

92 Al-Nural-badi fi ahkam al-aradi, Zahiriya 4400, fols. 144a–144b, 145a.
166 chapter four

mention this because of its frequent occurrence in our country and out of
concern over the welfare of this country . . . [thus] this legal ruling is needed
from time to time and God knows best.93
Thus, a person who obtains a piece of land through purchase or inheri-
tance and pays the kharāj tax on the land is in fact the owner of the land.
Ḥāmid al-ʿImādī expresses his opposition to the kharāj tax being treated
like rent in situations when an individual buys a land and designates it as
waqf. In fact, he maintains that when the mutawallī receives the necessary
kharāj dues from a waqf, then he has no right to demand a share of the
crop as well; this is considered an abuse of authority.94 In an earlier fatwā
involving a representative of the public treasury (wakīl bayt al-māl) who
tries to lease out a waqf on the premise that it is a kharāj paying land,
al-Ramlī rules that the state has no right to lease the property and that
the kharāj paying individuals who inherited the waqf land did not have to
prove ownership of the land in question, stating that even the sultan does
not have the right to demand such proof.95
Cuno sheds some light on why such jurists were adamant about protect-
ing the kharāj payer’s claims over waqf properties. The ʿulamā’s defense
of waqf property vis-à-vis state transgressions can be traced back to the
early Ayyubid period when waqf endowments increased in number. With
the growth of waqf endowments (founded both by rulers and common
individuals), state funds were jeopardized, tempting rulers to appropri-
ate such properties in order to make up for lost revenues. The ʿulamāʾ,
as the main beneficiaries of these religious endowments, protected the
interests of waqf lands. As Cuno argues, “[s]ince a waqf must be made
from property, the ʿulamā’s defense of waqf land entailed a defense of
privately owned land.”96 The jurists’ defense of private property and waqf
lands (which often were not formally registered or easily verified through
documents) against state ambitions continued down through the Otto-
man period—such an agenda was in large part behind the treatises on
land tenure written by Ibn Nujaym and Ibn Ḥajar.97
In his fatāwā, Ḥāmid al-ʿImādī emphasizes that whoever inherits a
waqf in a legally sound manner is under no obligation to prove that his/

93 Ibn ʿĀbidīn, Al-ʿUqud, 1:182.

94 Ibid.
95 Ramlī, Al-Fatawa al-khayriya, 1:189.
96 Cuno, “Miri or Milk?,” 146.
97 Ibid., 147.
 upholding the integrity of sharīʿa vis à vis qanūn 167

her claims are legitimate—a point also made by al-Nābulusī.98 Referring

to an individual (Hind) who obtained a waqf land through inheritance
and whose relatives had control over the land for more than fifty years,
al-ʿImādī rules that she is free to sell her crop to whomever she wishes
and is not obliged to prove her ownership of the land or share her profit
with the supervisor.99 The issues raised in this fatwā reflect concerns that
both Ibn Nujaym and Ibn Ḥajar voiced in their treatises. Thus, the opin-
ions embraced here by Ibn ʿĀbidīn and al-ʿImādī were to some extent
a reflection of the interests of the religious establishment to which they
belonged.
Protecting the integrity of waqf lands also meant that muftīs were
critical of state or local authorities who exploited such lands or exerted
unwarranted control over them. Referring to the relationship of the state
to waqf properties in general, al-Ramlī maintains,
. . . the qāḍī has no right to act on behalf of the waqf when it has its own
mutawallī, and . . . if the waqf designator appointed himself the beneficiary
of the waqf crop, then that takes precedence over any decision by the qāḍī,
and it was said in al-Fatawa al-sughra that if the mutawallī died and the
waqf designator was alive, then the designator, rather than the judge, has
the priority to appoint another mutawallī, and if the designator was dead,
then his/her guardian has more priority than the judge to appoint the
mutawallī . . . and if [the mutawallī appoints a successor], then the judge has
no right to appoint one . . . if the waqf belonged to a limited known group
of beneficiaries, it is acceptable for them to appoint a mutawallī without
referring to the judge . . .100
The limited role accorded to judicial authorities in appointing a waqf
overseer was, according to al-Ramlī, especially necessary given the greed
of state officials when it came to waqf properties. Basing his judgment on
precedent, al-Ramlī is adamant that the administration of waqf proper-
ties should, whenever possible, remain out of state control. He is clearly
suspicious of the motives of state authority—both its executive and legal
arms—vis-à-vis waqf properties. Thus, the designation of a mutawallī was
first and foremost the right of the waqf founder, then his/her guardian,
and finally the beneficiary(ies) of the waqf.
The law also imposed strict guidelines on the state’s ability to oust waqf
supervisors and replace them with other officials. This is best illustrated

98 Fatawa al-Nabulusi, Zahiriya 2684, fols. 103a, 111a.

99 Ibn ʿĀbidīn, Al-ʿUqud, 1:183.
100 Ramlī, Al-Fatawa al-khayriya, 1:188–89.
168 chapter four

in fatāwā issued by al-Nābulusī regarding the appointment, termination,

and replacement of waqf officials by the sultan. According to al-Nābulusī,
if the sultan wishes to dismiss a particular waqf supervisor, he must pres-
ent proof or dalīl before a judge that the supervisor has in fact committed
a ‘misdemeanor’ ( junḥa).101 Furthermore, there must be an official state-
ment (it is not clear from the fatwā if this had to be in writing) indicat-
ing that the mutawallī has been dismissed and another appointed in his/
her place. Should the sultan or ḥākim (or any other proxies, i.e. a qāḍī or
wazīr) dismiss a waqf overseer without legitimate reason, then a judge is
entitled to sustain the supervisor in his/her position. al-Nābulusī is careful
to highlight that this is in accordance with the rulings of the ʿulamāʾ. He
states, furthermore:
. . . injustice (al-ẓulm wa al-taʿaddī) is the gravest aggression that a Mus-
lim can cause to another, and its prohibitions are clearly outlined in the
Qurʾān and Islamic law. This is particularly true when [injustice] is com-
mitted by governors (ḥukkām) and the leaders of the people . . . and it is
enough to mention what has been stated: “the true Muslim is the one from
whom others are spared the harm that may come from his hand or from
his tongue.”102
While certainly critical of state interference in waqf affairs, al-Nābulusī, in
keeping with his stance on peasant mobility, expresses a broader oppo-
sition to injustice in general, particularly when committed by those in
power. Once again, he makes it a point to highlight that abuse of power is
against the most fundamental principles of Islam and those who commit
such acts are not “true Muslims.”
In addition to protecting the status of waqf administrators, jurists also
upheld the right of such administrators to challenge forces empowered
by the state with tax collecting rights vis-à-vis waqf properties. Muḥibb
al-dīn al-Ḥanafī, for example, expresses his opposition to officials who
abuse their tax collecting authority. In a fatwā referring to a state official
(one with a berāt sulṭānīya or an official document that grants a privilege
or confers a right or appointment to a post) who collects too much of the

101 The fatwā does not specify what this might be, but based on the legal literature in
general, this could include any kind of financial corruption or harm done to the waqf itself.
Al-Nābulusī reiterates the importance of presenting proof because, he explains, all sultanic
affairs are formulated in accordance with sharī‛a law. See, Fatawa al-Nabulusi, Zahiriya
2684, fol. 112a, 112b. Beneficiaries also could not dismiss a mutawallī unless he was proven
guilty of treachery before a judge (Ibid., fol. 98a).
102 Ibid., fol. 112a.
 upholding the integrity of sharīʿa vis à vis qanūn 169

crop ration (more than one-tenth) from a waqf land, Muḥibb al-dīn insists
that the administrative judge (ḥākim al-musilmīn) order him to stop tak-
ing advantage of the farmers and forcing them to do what sharīʿa law does
not require.103 As discussed in chapter three, many waqf lands during the
period at hand were often required to pay the ʿushr tax to the state. An
early eighteenth-century fatwā issued by Muḥammad al-ʿImādī details
how such taxes were often collected from waqfs by an individual granted
a mālikāna (lifelong lease or lifetime tax farm) by the sultan, a testimony
to the increasing commercialization of agriculture by this period.104 In
this particular case, the mālikāna holder (ʿAmr) demands that the peas-
ants pay a sum that exceeds the amount that he is required to pay the
state (an amount clearly detailed in the charter he has been granted). The
mutawallī of the waqf, Zayd, took ʿAmr to court in the presence of the cul-
tivators and the supreme judge (qāḍī al-qudā). The latter prohibited ʿAmr
from demanding the excessive sum and demanded the reinstatement of
the previous ʿushr that he (ʿAmr) should collect from Zayd (not the culti-
vators). Al-ʿImādī rules that the qāḍī’s decision should be observed and is
correct.105 According to Muḥammad al-ʿImādī, moreover, ʿushr agents do
not have the right to interfere when maska rights on waqf lands are ceded
or transferred from one cultivator to another; only the acknowledgement
of the responsible mutawallī is needed.106 Thus, he clearly distinguishes
between the role of the waqf administrator and the tax collector in a bid
to ensure that the latter does not try to co-opt the role of the former.
Finally, he also maintains that when a waqf land does not have a history
of paying the ʿushr tax (“anytime before since antiquity”), the ʿushr agent
does not have the right to demand that the waqf overseer now begin pay-
ing the tax.107 Here, al-ʿImādi relies on customary law to challenge those
forces seeking to extract taxes from waqf lands.
In the case of state lands, muftīs sought to ensure that tenants
and sharecroppers fulfilled their obligations. While for the most part will-

103 Fatawa bani al-ʿImadi, Zahiriya 5864, fol. 88a.

104 As Mundy and Saumarez-Smith point out, the mālikāna holder, as described in the
legal literature of the period, could act as either a land administrator or tax collector (see
Governing Property, 25). Dina Rizk Khoury in her work on Ottoman Mosul documents
how the mālikāna system “allowed the state to tax sectors of society that had hitherto
escaped paying taxes through one form of exempt status or another.” See, State and Pro-
vincial Society in the Ottoman Empire: Mosul, 1540–1834 (Cambridge: Cambridge University
Press, 1997), 78.
105 Al-Nur al-mubin fi fatawi al-ʿImadiyin, Zahiriya 7508, fol. 71b.
106 Ibid., fols. 73a–73b.
107 Ibid., fols. 72b–73a.
170 chapter four

ing to concede state control over lands owned by the public treasury,
muftīs, such as Ḥāmid al-ʿImādī, also delineated the boundaries of that
control. Consider, for example, the following statement by al-ʿImādī: “the
sultan . . . is the one who has the right to decide how lands owned by him
should be used and he should not be defied as long as he does not defy
sharīʿa law.”108

Conclusion

Muftīs and legal thinkers were critical of various sorts of abusive practices
towards sharecroppers and/or tenants including: harsh or unjust demands
on peasants (including control over their movement), abusive forms of
taxation, and attempts by provincial elites to privatize lands allocated as
state or waqf lands.
While Ottoman state concerns often coincided with those of regional
legal thinkers, this was not always the case. Muftīs such as al-Ramlī and
al-Nābulusī provided a more liberal interpretation of peasant mobility
than that espoused by the state and its supporters. Both muftīs justified
their insistence on peasants’ right to freedom of movement by making
reference to sharīʿa law, the well-being and productivity of the land, and
the individual’s inherent right to choose his/her abode.
Generally speaking, the main objective of the law governing the trans-
fer of usufruct rights seemed to have been twofold: ensuring that the cul-
tivation of state and waqf lands was undertaken by individuals capable of
efficiently farming the land, and preserving the integrity of existing patri-
archal structures that had for generations been the foundation for the
usufruct system of land tenure in the region. Thus, from a legal perspec-
tive, women often faced limitations to acquiring usufruct rights on public
lands that did not apply in the case of sons or even some male relatives,
such as payment of the tāpū.
Having said that, however, the legal rulings issued by Ḥāmid al-ʿImādī
shed light on important variations at the local level regarding women’s
inheritance of usufruct rights. His legal opinions (and those of his pre-
decessors) provide a good example of how local law often deviated from
the orthodoxy of state law. This is in part a result of the muftīs’ efforts to
reconcile the law with realities on the ground. The frequent mention of

108 Ibn ʿAbidīn, al-ʿUqud, 2:207.

 upholding the integrity of sharīʿa vis à vis qanūn 171

al-kirdār, for example, would indicate that cultivators working state and
waqf lands often had long-term tenure rights on the land (thanks in large
part to the legal system itself)—after all, establishing structures, trees,
vines, etc. took time and commitment. The privileged rights which kirdār
holders in turn gained under the law further encouraged these tenants to
remain on the land and engage in construction or the growing of trees.
Muftīs understood the benefits to be gained from consistent, un-inter-
rupted cultivation of arable lands and thus, to encourage this, provided
incentives to cultivators.
The greater flexibility of local law in regards to the transfer of usufruct
rights in cases in which there existed a kirdār meant that women had
more opportunities to gain access to arable lands. Furthermore, women
had the right to claim property (kirdār) left behind by the deceased maska
holder on lands which, at least in theory, the latter did not own. Thus,
even in cases when women did not obtain usufruct rights to the land upon
the death of the maska holder, they were legally entitled at least partial
control over the kirdār left behind by him/her. The law therefore created
an avenue whereby usufruct rights could translate into property owner-
ship for women.
According to Tucker, the Land Law of 1858 made the inheritance of state
lands, at least in theory, subject to Islamic rules of succession. Women,
therefore, could inherit shares in land just as they inherited other types
of property.109 A close reading of Ḥāmid al-ʿImādī’s fatāwā however sug-
gests that the application of Islamic laws (although stipulating an unequal
share for women vis-à-vis men, at least guaranteed women a specific
share) of inheritance to the realm of usufruct rights was a process that
began prior to the nineteenth century—the whole concept of kirdār and
the laws surrounding it in eighteenth-century Syria must be seen in this
light. Furthermore, the increasing number of arable lands that became
waqf properties by the eighteenth century may have worked to women’s
benefit. Waqf as an institution was more clearly under the jurisdiction of
Islamic law rather than sultanic law.
The long-term tenure which maska holders and their descendants could
gain on state or waqf lands, combined with the possibility of creating their
own private property on such lands indicate that legal thinkers promoted

109 Tucker, Women in Nineteenth Century Egypt, 51.

172 chapter four

a system that recognized multiple layers of ownership.110 Furthermore,

the law helped encourage a situation whereby tenants and sharecroppers
treated arable lands as their own property. A system recognizing various
layers of ownership could certainly work to the benefit of rural women
who might otherwise find themselves excluded from control over landed
and/or other property.
Finally, jurists challenged qanūn by demarcating sharīʿa’s jurisdiction
over religious endowments and limiting the state’s control over the finan-
cial and administrative aspects of such properties. The fatāwā go so far as
to express suspicion of state motives regarding waqf properties, specifi-
cally indentifying judges, administrative officials, and the sultan himself
as agents of the state that had to be monitored.

110 Ze’evi reaches a similar conclusion in his study of 17th century court records from
Ottoman Jerusalem. See An Ottoman Century, 136.
 CONCLUSION

The legal discourse on tenancy and sharecropping in seventeenth- and

eighteenth-century Syria provides the historian not only with a unique
glimpse into the evolution of the law, but also the interplay between the-
ory and practice. Rather than being hypothetical, the fatāwā on land ten-
ure illustrate the imposition of reality upon the judgments of the jurists.
Muftīs responded to problems particular to the economy and agrarian
regime of seventeenth- and eighteenth-century Syria and Palestine. Fur-
thermore, fatāwā illustrate the dynamism of Islamic law over time and
its ability to respond to current problems through a host of legal sources
including handbooks from different Sunni schools, Ottoman land laws,
custom, and ijtihād.
The formulation of laws regarding cultivators on state and waqf lands
was influenced by the role Islamic scholars played in their societies. Thus,
the significant attention given to waqf properties in the legal literature of
the time is in part tied to the fact that many ʿulamāʾ earned a living from
posts held and jobs performed in religious endowments.1 Furthermore,
the status that a particular scholar held in his society as an official or
unofficial muftī shaped the opinions which he embraced. State appointed
muftīs, for example, while careful to ensure that sharecroppers and ten-
ants were guaranteed certain rights, were sometimes more conservative
in their application of the law, refraining from outright criticism of long
established state land policies. Having never held an official post as muftī,
Khayr al-dīn al-Ramlī, however, often took a more critical stance towards
the state and its policies. Having said that, however, neither official nor
unofficial muftīs directly challenged the legitimacy or authority of the
Ottoman state in general; they simply laid out guidelines that should regu-
late and limit its power. Officially appointed jurists (such as al-Nābulusī)
were sometimes the most vocal in establishing the parameters of state
control.
The social and educational backgrounds of these scholars also shaped
the concerns discussed in their fatāwā. Thus, for example, the opinions
espoused by both al-Ramlī and Ibn ʿĀbidīn on kharāj paying lands must

1 Rafeq, “Making a Living,” 118.

174 conclusion

be understood in the context of their previous training in the Shāfiʿī school

of law. Furthermore, it is perhaps not surprising that al-Ramlī emerges as
fairly liberal in his interpretation of the law regarding tenants and share-
croppers on state and waqf lands. Indeed, he was troubled by the injus-
tices inflicted upon the peasantry, both by state and local officials. To
begin with, as a landowner, he was wary of unequivocal state control over
arable lands. Also, it was not in his benefit as a landowner to challenge the
foundations of the sharecropping arrangement since he himself utilized
the institution.2 Finally, perhaps due to his first hand understanding of
the sort of commitment and toil involved in efficient cultivation, al-Ramlī
frowned upon actions that jeopardized a legitimate cultivator’s efforts.
The jurists’ insistence on peasants’ freedom of movement and judg-
ment offered cultivators certain rights that countered the more oppres-
sive aspects of the sharecropping contract (especially as it took shape on
state lands). The fatāwā of both al-Nābulusī and al-Ramlī are categorical
not only in upholding the tenant cultivator’s usufruct rights, but also his/
her right to resist oppressive forms of taxation, his/her choice to leave the
land voluntarily, and his/her right to oppose policies and practices aimed
at forcing one to return to the land. On these latter two issues, the muftīs
diverged from the official Ottoman position that strictly sought to regulate
the movement of peasants.
On the whole, legal thinkers generated a balanced legal framework to
regulate the rights and obligations of tenants and landlords on state and
waqf lands. At this juncture, I will explore some of the implications of this
discourse on notions of development, justice, the evolution of law at the
state and local levels, nineteenth-century land reform, and the relation-
ship between law and civil society.

Development and Land Tenure

As indicated in the introduction, a major debate in the sharecropping

literature has revolved around the issue of who benefits more from the
sharecropping arrangement—the tenant or the landlord. Although it
would perhaps be an exaggeration to say that in practice sharecroppers
benefitted more than most landlords from such arrangements in the
context of Ottoman Syria, the law itself incorporated mechanisms that

2 Cuno, “Miri or Milk?,” 148.

 conclusion 175

allowed law abiding and efficient cultivators to enjoy important rights on

the lands they worked, including: long-term tenure, ownership of trees
and buildings erected on the land, and the right to pass usufruct rights to
family members. Such rights translated into clear advantages for share-
croppers and tenants, who often times treated state and waqf lands as
their own properties.
Legal thinkers also had no reservations about cultivators assuming the
role of agricultural innovators on the lands they worked. Even in cases in
which tenants may not have benefitted more than landlords, they never-
theless enjoyed a certain degree of freedom in the manner in which they
worked the land. There is no better indication of this than the lack of
attention given by jurists to the actual cultivation practices of tenants and
sharecroppers. Although muftīs emphasize the importance of maintaining
the proper and efficient cultivation of arable lands, they do not discuss the
techniques that should be employed or the tools that should be utilized.
In their formulation of tenant/sharecropper laws, Islamic scholars gen-
erated a discourse of development that contrasted in important respects
from that propagated in the West. In the case of early modern France,
for example, legal and social thinkers were reluctant to accept or even
sought to reverse the increasingly important role which tenant farmers
assumed in the countryside, both as agricultural producers and economic
intermediaries between town and village.3 For French thinkers between
the sixteenth through eighteenth century, efficient agricultural produc-
tion hinged on the landlord’s interests being protected. Distrustful of
tenants and sharecroppers in general, they emphasized that efficient agri-
cultural production hinged on the landlord’s direct participation in the
agricultural realm.4 Overall, the ideas embraced by French legal treatises

3 For a more detailed comparison of the status of tenant cultivators in Ottoman Syria
and France, see Sabrina Joseph, “The Legal Status of Peasants in 17th and 18th Century
Ottoman Syria and France,” Rural History: Economy, Society, Culture 18 (2007): 23–46.
4 Rene Choppin, Traité des privileges des personnes vivans aux champs (Paris: Pierre
Ménard, Libraire Jure, 1662), 39–40; Bernard Palissy, Recépte veritable (Geneve: Librairie
Droz S.A., 1988); Olivier de Serres, Le theater d’agriculture et mesnage des champs (Paris:
Société d’agriculture du département de la Seine, 1804), 51, 57, 137–38. Another agricul-
tural manual similar to Serres’ which embraces a negative perspective of tenant farmers
is Charles Estienne and John Liebault’s Maison rustique, or, The Countrey Farme, trans. By
Richard Surflet and Gervase Markham (London: Adam Islip for John Bill, 1616). Although
Robert Joseph Pothier’s (1699–1772) legal work, Treatise on the Contract of Letting and Hir-
ing (itself a testament to the increasing prevalence of tenants and farm leases) accepts the
legitimacy of leasing and/or sharecropping agreements, it continues to express an overall
wariness towards tenant cultivators by championing the lessor’s right to security of rent
176 conclusion

and ­agricultural works of the period supported a privatization of prop-

erty rights. In fact, legal thinkers in early modern France link agricul-
tural development and efficient production to private ownership of land.
French villages in the seventeenth and eighteenth centuries continued to
have some lands held in common. Even though enclosure was already
under way from as early as the fourteenth century (particularly in certain
regions of France such as Artois and French Flanders), ownership of land
continued to remain ill-defined up through the seventeenth and eigh-
teenth centuries. The French land system can be best described as one
in which multiple layers of ownership existed. As Jean-Laurent Rosenthal
explains, agricultural land
was frequently in a state of well-defined use and poorly defined ownership.
Both use rights and property rights were the result of centuries of interac-
tion between a village and its seignior so that frequently ownership of the
resource was unclear.5
Seventeenth-century French legal and social thinkers and agronomists
drew a clearer distinction between the ownership rights of bourgeois/
noble landowners and tenant farmers/sharecroppers on arable lands than
that described by Rosenthal. Similar to French administrators of the time,
these intellectuals did not embrace the position that use rights translated
into property rights. On their part, administrators were keen on initiating
reforms that would transform the common land system and the prop-
erty rights controlling it. These reforms proposed to divide common land
between seigneurs, landowners, and tenants. As Rosenthal points out,
however, “the reforms favored owners (seigniors or landowners) rather
than users (villagers or tenants) because they had much greater political
influence.”6
In contrast to the case of early modern France, for example, where legal
thinkers strongly associated agricultural development with private prop-
erty and the active involvement of the landlord, jurists of Ottoman Syria
articulated a legal ideology conducive to ensuring production and devel-
opment on more publicly oriented lands with absentee ­landowners. This
was a matter of necessity given the nature of the Ottoman land regime,
but it was also related to the general perception of agricultural laborers

above all else, limiting the tenant’s ability to alter crop rotations, and imposing various
carting services on the lessee (Durban: Butterworth and Co. (Africa) Limited, 1953), 74, 81.
5 Jean-Laurent Rosenthal, The Fruits of Revolution: Property Rights, Litigation, and French
Agriculture, 1700–1860 (Cambridge: Cambridge University Press, 1992), 16.
6 Ibid., 16–17.
 conclusion 177

in classical Islamic law as well. Since the early debates on ­sharecropping

prior to the tenth century, jurists from the various schools of law had
sought to ensure that cultivators were not unjustly exploited. This con-
tinued to be the case among muftīs and legal thinkers of seventeenth-
through early nineteenth-century Ottoman Syria. Thus, the rationale
behind such an approach to agricultural production was not solely (or
even predominantly) based on a support for the state or its development
agenda (after all, the state benefitted from the revenues of both state and
waqf lands), but rather on perceived notions of the rights that legitimate
cultivators should have on the lands they worked. Ultimately, such an
ideology undoubtedly helped stall the development of large landholdings
which, as various scholars have emphasized, were conspicuously absent
in the region at least until the nineteenth century.7
The study of the law raises important issues with regard to the study
of agricultural development in the Arab East. The literature on capital-
ist development in Europe has argued that sustained agricultural growth
and the application of innovative agricultural techniques has been lim-
ited by various factors including: persistence of communal farming, divis-
ible inheritance practices,8 prevalence of smallholdings,9 heavy taxes
on peasants,10 high turnover of tenants, and an unfavorable socio-legal
climate vis-à-vis tenant farmers on the land.11 In the case of Ottoman
Syria, tenants and sharecroppers clearly enjoyed security of tenancy
and a favorable socio-legal climate which did not inhibit their innova-
tive role on the land. Also, it is not entirely convincing that the persis-
tence of small holdings somehow prevented the application of innovative
agricultural techniques. Referring to examples of agricultural progress in
developing countries where land fragmentation has taken place, Robert
Forster argues that the “morale of ownership” which comes with hav-
ing land, even if in small parcels, “outweigh[s] the apparent inefficien-
cies of fragmentation.”12 In a certain sense, it could be argued that many

7 Gerber, Social Origins and Doumani, Rediscovering Palestine.

8 Ralph Davis, The Rise of the Atlantic Economies (Ithaca, NY: Cornell University Press,
1973), 217 and William Hagen, “Capitalism and the Countryside in Early Modern Europe:
Interpretations, Models and Debates” in Agricultural History 62, no. 1 (1988): 28, 44.
9 B.H. Slicher van Bath, The Agrarian History of Western Europe, A.D. 500–1850, trans.
Olive Ordish (London: E. Arnold, 1963), 321.
10 Daniel Hickey, “Innovation and Obstacles to Growth in the Agriculture of Early Modern
France: The Example of Dauphine,” French Historical Studies 15 (1987): 237–38; and Hagen,
“Capitalism and the Countryside,” 44.
11 Robert Forster, “Obstacles to Agricultural Growth in Eighteenth Century France,”
American Historical Review 75, no. 6 (1970): 1610, 1614.
12 Ibid., 1602.
178 conclusion

seventeenth- and ­eighteenth-century tenants and sharecroppers in Otto-

man Syria enjoyed a “morale of ownership,” particularly in cases where
they benefitted from kirdār.
The study of agricultural development during this period must inte-
grate the fields of legal and social/economic history. From the perspec-
tive of the latter, future research on agrarian development and innovation
in the early modern Middle East should be directed towards systematic
study of the socio-economic changes that promoted or inhibited agricul-
tural growth, including the impact of crop rotation practices and surplus
extraction methods (such as rent collection vs. sharecropping, for exam-
ple) on agricultural productivity.13 Finally, a study of the law as it relates to
agrarian matters provides insight into the evolution of the law over time,
the legal mechanisms and institutions aimed at promoting agricultural
production, the relationship between landlords and tenants, the inter-
play between theory and practice, and between state and local policy as
it related to production, taxation, security of tenure, and ownership. Most
importantly perhaps, an understanding of the law and its institutions is
paramount in dispelling essentialist explanations that assume that socio-
cultural factors inherent to Eastern society or Islam in general somehow
inhibited development.

Justice Defined

In her research on sixteenth-century Jerusalem, Singer emphasizes that

peasant forms of protest were generally limited to various forms of passive
resistance—there was a marked absence of any larger scale peasant rebel-
lions.14 Gerber makes the same point in his study of land tenure patterns in
various regions of the Ottoman Empire from the seventeenth through the
nineteenth centuries.15 The findings presented here provide some expla-
nation as to why such a situation prevailed. The overall recognition of the
tenant/sharecropper’s entitlement to certain ‘inalienable rights’ helped
ensure against large scale peasant rebellions. The limitations that muftīs
placed on state and waqf officials prevented these individuals from being

13 Tabak’s “Agrarian Fluctuations” provides an analysis of crop rotation practices and

their relationship to changing patterns of trade in the Fertile Crescent during the eigh-
teenth and nineteenth centuries.
14 Singer, Palestinian Peasants, 125–27.
15 Gerber, Social Origins, 119, 133–34.
 conclusion 179

transformed into true landlords. While muftīs certainly sought to ensure

the proper collection of revenue from state and waqf lands by these offi-
cials, they also reprimanded corrupt or abusive behavior towards tenants
and sharecroppers on the land, be it in the form of unjust taxation, exces-
sive rent, or breeches of contract.
The accessibility of the muftīs and their overall concern for balancing
the interests of landlords and tenants was reflective of the broader legal
system in place throughout the Empire. Indeed, tenants and cultivators (as
well as state and waqf officials) could voice their protests and concerns in
various legal arenas—to the local muftī, the local judge, and state officials.
Research done on seventeenth- and eighteenth-century Palestine and
Anatolia using Islamic court records, for example, has emphasized the
important role that qāḍīs played in ensuring tenants’ and sharecroppers’
security of occupancy.16 Indeed, there was a high degree of uniformity and
consistency in the application of the law towards cultivators on state and
waqf lands, both at the state and local levels. This did not mean that muftīs
were in agreement with all points of Ottoman state law. For example,
various legal thinkers challenged state attempts to interfere unlawfully in
waqf affairs or encroach upon the rights of tenants and sharecroppers to
leave the lands they worked.
Nevertheless, in their articulation of land tenure laws, jurists of Otto-
man Syria embraced the principles embodied in the Ottoman political
concept of the ‘circle of justice.’ Their emphasis on the proper and effi-
cient cultivation of state and waqf lands must be understood in this light.
By securing the tenancy rights of efficient cultivators, legal thinkers real-
ized that satisfied peasants ensured efficient cultivation which in turn
led to a prosperous state and successful religious endowments. Neverthe-
less, muftīs of the day added a moral element to their understanding of
justice, particularly in formulating laws related to waqf properties. Not
only did they perceive themselves as having a moral obligation to protect
the status of waqf lands, but they also expected waqf overseers to refrain
from unjust acts on the basis of moral principles—after all, what greater
purpose could one have than overseeing the management of religiously
endowed properties meant to benefit the public good. Thus, while the effi-
cient collection of revenue was clearly important to jurists, their defense
of tenant/sharecropper rights was also based on accepted principles of
right and wrong.

16 Gerber, Social Origins, 22–23; and Ze’evi, An Ottoman Century, 135.

180 conclusion

Local Law and Ottoman State Law

In establishing the legal norms governing land tenure relations in six-

teenth- and seventeenth-century Syria, the Ottoman state and local
jurists dealt with different problems and issues, offering insight into spe-
cific social and economic realities. Unlike legal sources emanating from
the state (such as imperial orders and decrees), Islamic legal doctrine, as
articulated in the fatāwā and commentaries, is an expression of the issues
and debates relevant to the social and economic reality of a particular
region, understood in the context of both state law (qanūn) and Islamic
legal tradition. Thus, as the state focused on problems that affected entire
villages and concerned the stable collection of revenue and the mainte-
nance of law and order, the local muftī dealt with questions pertaining
to land tenure, cultivation rights, and the peasants’ access to the fruits
of production. While the mühimme registers provide insight into those
forces that threatened or hindered peasant production and, therefore, the
collection of revenue, the fatāwā offer a useful glimpse into the actual
cultivation practices of peasants on the land.
There were various tensions that characterized the relationship between
state and local law or qanūn and sharīʿa. From the state’s perspective, the
protection of the peasantry from Bedouin raids, abusive officials, and
oppressive forms of taxation was essential in maintaining a stable supply
of labor and ensuring the stability of agricultural production. Thus, the
well-being of the empire depended upon ensuring some level of economic
justice for the peasantry. The fact that peasants could and often did sub-
mit petitions of complaint to the sultan indicates that they had some real-
ization of their own status within the Empire. Through such mechanisms
as the firmān, the state attempted to keep the law responsive to social
reality (albeit a reality of a particular kind). However, although the Otto-
man state did seek to protect the safety and well being of the peasantry,
it did so within certain defined limits that did not jeopardize the proper
and consistent cultivation of the land. Legally speaking, the state sought
to control and regulate peasant migration by imposing taxes on peasants
who deserted their lands, and forcing peasants absent for less than ten
years to return to their original lands.17

17 On the issue of forcing peasant return to their village if absent for less than ten
years, Mundy explains how several Ottoman Turkish muftīs also challenged such a law.
See “Islamic Law and the Order of the State,” 410.
 conclusion 181

An analysis of the Islamic legal discourse on peasant land tenure also

illustrates the sort of tensions that existed between the law and the social
reality of a particular region. Although legal thinkers constantly empha-
size the indivisibility of state lands and the illegality of selling such lands
(in accordance with official Ottoman law), such practices did take place
and were not uncommon. Clearly, peasants were active rather than pas-
sive actors in the agrarian regime. The legal sources also illustrate that
cultivators at times engaged in actions detrimental to the well-being of
the land. Local muftīs, however, established a legal framework that sought
to impede such actions. Thus, those who hindered the cultivation of crops
and trees could face several repercussions including: payment of a fine,
loss of their sharecropping rights, and/or loss of the right to bequeath
their possession rights to family and kin.
Finally, the fatāwā also offer a glimpse into the injustices inflicted upon
cultivators, such as excessive taxation, and the repercussions of such acts,
which included peasant desertion of lands. As lawmakers, muftīs opposed
unjust acts and incorporated mechanisms in the law to protect cultiva-
tors from such abusive practices. Legal thinkers strongly reprimanded the
actions of corrupt officials and even the state itself when it challenged
the integrity of sharīʿa law. It is often in the context of cases dealing with
oppressive acts vis-à-vis cultivators that one can directly glimpse the ten-
sion that existed between the Ottoman state and ʿulamāʾ at the local level.
Overall, jurists sought to ensure both the cultivator’s mobility and security
of tenancy. Through such notions as ḥaqq al-qarār, kirdār, and mashadd
maska, muftīs upheld the occupancy rights of tenants who contributed
time and labor to the land. While state law certainly supported providing
loyal, law-abiding cultivators with usufruct rights on arable lands, jurists
went beyond the state by closely tying usufruct to peasant labor (rather
than just payment of dues/fees, for example). By the early nineteenth cen-
tury, furthermore, it is clear that the cultivator’s land tenure rights became
more intimately tied to his/her contractual relationship to the landlord.
Ultimately, the spread of waqf arable lands in Ottoman Syria after
the seventeenth century brought with it a more direct confrontation
between qanūn and sharīʿa on matters pertaining to land tenure. Since
Abu al-Suʿūd’s efforts to streamline land tenure practices (which partly
involved a reconciliation of qanūn and sharīʿa), usufruct issues on arable
lands were increasingly brought under the jurisdiction of qanūn. Although
jurists treated issues pertaining to cultivator rights and obligations on
both state and waqf lands with a certain degree of consistency (and, in
doing so, adhered to elements of qanūn), their persistent efforts to ensure
182 conclusion

that the waqf ’s administrative structure (particularly in its management

of waqf interests and its relations with cultivators) was not threatened
by state forces gained more urgency in light of the fact that an increas-
ing proportion of arable lands were in fact religious endowments by the
period at hand. Jurists, therefore, actively sought to ensure their jurisdic-
tion, as the standard-bearers of Islamic law, over waqfs.
While the law was balanced in important respects, it was also clearly a
gendered law. Thus, legally speaking, males had advantages over females
in inheriting usufruct rights. Although this did not mean that female
family members did not and could not inherit, they faced more serious
obstacles (such as payment of the tāpū and secondary rights to certain
male heirs) in assuming mashadd maska. This certainly diverged from the
strong inheritance rights they held over privately held property. The laws
articulated by Ḥāmid al-ʿImādī regarding women’s usufruct rights illus-
trate how muftīs were adept at using concepts held legitimate by Ottoman
law to formulate legal explanations and conclusions that diverged from
qanūn. By strongly linking kirdār to maska (legal concepts which in and of
themselves were recognized within qanūn, but expanded upon by muftīs),
al-ʿImādī’s rulings provided women with avenues to access state and waqf
lands that were not delineated by state law.
Fatwā collections from the early modern period also illustrate the adapt-
ability of the Ottoman land regime over time and the role of muftīs in
protecting the overall integrity of the land system. Although state sources
provide some evidence that a system of tax farming began to emerge dur-
ing the sixteenth century, a reading of the fatāwā indicates that the tradi-
tional land system remained intact, with some modifications, up through
the eighteenth century. The legal literature makes reference to changes
(whether it be the rise of tax farming or the leasing of tīmār lands) that
seem to point to an increasing commercialization of agriculture during
this period. Furthermore, the fatāwā confirm that certain provincial offi-
cials were indeed abusing their rights on state and waqf lands during this
period. Muftīs (and the state), however, clearly delineate the limits of their
power in an attempt to prevent the usurpation of land by localized pro-
vincial elites. Thus, up through the seventeenth century, local forces (in
conjunction with state interests) actively sought to regulate and maintain
the balance of power in the region.
Referring to the prevalence of small landholdings from the seventeenth
through the nineteenth centuries, Gerber states, “the land regime was
designed to help protect the Ottoman central government from a ­potential
 conclusion 183

landed aristocracy.”18 Thus, it is not surprising that “the social evolution

of Ottoman society unfolded in such a way that the peasantry remained
relatively free.”19 Indeed, the several references made to the tīmār system
in the fatāwā would seem to indicate that large scale tax farms, which
are not mentioned in the fatāwā or legal commentaries/treatises, did not
emerge as early as the seventeenth century.
The evolution of a land regime in which tenants enjoyed certain rights
is, at least in part, the result of the inherent flexibility of the Ottoman
administrative/legal system. While the state laid out the general standards
of just government through its imperial orders (based on a combination
of custom and Islamic law), the local muftī was responsible for interpret-
ing how these general standards could be applied in a more specific man-
ner consistent with local realities and religious doctrine. The organization
of the tīmār system itself was structured in such a way that juridical and
administrative practices were separated—thus, tīmār holders did not have
complete authority over cultivators and lands located in their tīmārs. The
tīmārī ’s primary role was to ensure efficient collection of agricultural
surpluses. Issues relating to usufruct rights and obligations, for example,
were under the jurisdiction of the central state, which exercised its power
through judges and muftīs, who were responsible for administering and
interpreting the law. Thus, qāḍīs and muftīs oversaw the activities of the
tīmār-holders and made sure that the latter did not overstep their bounds
in interacting with the peasants and performed their administrative duties
in accordance with the law. This system provided peasants with a recourse
to justice. Ultimately, in tolerating the division of power between admin-
istrative and juridical institutions and state-centered vs. locally centered
legal authorities (whether the latter be officially or unofficially appointed),
the Ottoman state institutionalized a legal system whereby difference and
opposition to certain state interests could be articulated.

Nineteenth-Century Land Reform

An understanding of the role of legal doctrine in protecting the status of

peasants, and an awareness of the sort of tensions that existed between
social reality and legal doctrine (both at the state and local levels) ­during

18 Gerber, Social Origins, 179.

19 Ibid., 66.
184 conclusion

this critical period is important in understanding the purpose and impact

of the Ottoman Land Law of 1858. The notion that private property and
large landholdings developed in Greater Syria as a consequence of the
1858 Land Code was the common wisdom among scholars until about
thirty years ago.20 According to this perspective, the peasantry, due to a
fear of being conscripted, were reluctant to register their lands in their
own names (the law itself required the registration of lands), making it
easier for urban notables to lay claim to their lands. While this perception
may have been true to a certain extent, the land law itself must also be
understood in the context of previous Ottoman policy and the evolution
of land tenure relations up to that point.
More recent research on the topic has emphasized how the 1858 law did
not in fact break from traditional Ottoman policy vis-à-vis the peasantry.
Thus, the Ottoman government “did not design the law to encourage the
formation of large private estates or to lay the foundation for a class of
absentee urban landholders.”21 Rather, the law code was an attempt by
the state to reassert fifteenth- and sixteenth-century Ottoman land laws.22
Doumani argues that the intent of the law was to help promote the effi-
cient collection of taxes and maintain the integrity of small landowner-
ship, the cornerstone of peasant agricultural production.23 Thus, the land
code was in important ways consistent with previous Ottoman law vis-à-
vis the producing subject classes.
Doumani identifies important reasons why the consequences of the
1858 land law diverged from its initial purpose—that is, why it in fact
seemed to propel the formation of large landed estates. Essentially, he
argues that a commercialized market in land existed prior to the 1858 land
code. Thus, peasants had been engaged in selling state agricultural lands
prior to the implementation of the land code—the legal sources make
it clear that such practices were taking place. According to Doumani,
during the eighteenth and early nineteenth centuries, indebted peasants
were mortgaging and selling the usufruct rights to the lands they worked
(often times with court approval) to urban notables and, by the mid-
nineteenth century, to a merchant dominated urban elite. Because by the

20 For such a perspective, see Karpat, “The Land Regime,” Warriner, “Land Tenure,”
Sluglett and Farouk-Sluglett, “The 1858 Land Code,” and Baer, “Evolution of Private
­Landownership.”
21 Doumani, Rediscovering Palestine, 159.
22 Gerber, Social Origins, 68–69.
23 Doumani, Rediscovering Palestine, 159.
 conclusion 185

mid 1830s state lands had increasingly transformed into private property
(and thus the sale of such lands involved more than just the sale of use
rights), the gradual appropriation of lands by notables and merchants as
a result of defaults on loans ultimately led to the creation of large private
­landholdings.24
In its intentions at least, the Ottoman Land Law of 1858 was an attempt
by the state to reassert its authority and ensure the integrity of the land
regime and status quo. The land code was issued in response to the same
concerns that plagued the state and local legal authorities from the late
sixteenth through the early nineteenth centuries—how to limit the power
of provincial officials. Does this necessarily mean that the law was formu-
lated in reaction to political, social, and economic realities? It is useful
here to consider the role local legal tradition played in shaping future land
tenure patterns. While legal thinkers certainly formulated laws to protect
the integrity and indivisibility of state lands, they, ironically enough, also
laid the seeds for the dismantling of the state land system. Although jurists
established a legal difference between usufruct rights and raqaba (owner-
ship), their predominant concern was to ensure the proper and consistent
cultivation of the land and the legitimate collection of revenue, be it in
the form of rent or taxes. The security of tenancy granted to legitimate,
law abiding cultivators (which included such rights as ownership over
trees and buildings erected on the land, long-term tenure rights extending
over generations, and the right to sub-lease state lands) who engaged in
the efficient cultivation of agricultural lands allowed for the development
of various layers of ownership, where peasant cultivators often perceived
themselves as ‘owners’ of the lands they worked. The law shaped and was
shaped by a reality in which tenant cultivators sold, mortgaged, and/or
leased the state lands they farmed, ultimately contributing to the erosion
of state lands and the formation of large landholdings in certain parts of
Syria and Palestine by the nineteenth century.
To a certain extent, the same argument could be applied to the case of
waqf lands as well. The long-term leases that gained increasing legal legiti-
macy among Ḥanafī thinkers during this period (although the disadvan-
tages they posed to waqf properties were recognized) ultimately opened
the door for lessees of waqf land to amass large fortunes at the expense of
the waqf and its beneficiaries. This situation tended to be more common
in lease arrangements on deteriorated waqf lands. In such cases, tenants

24 Ibid., 159–64.
186 conclusion

were granted long term leases (and, often times, a share in the crop and/
or yield) as an incentive to rejuvenate such lands. These tenants, however,
were not the only ones guilty of corruption—the overseers of waqf prop-
erties, similar to tīmārīs and other state officials, also abused their power
on the lands they managed.
The processes unleashed after the implementation of the 1858 code must
be understood in the context of the administrative-legal establishment and
its impact on the evolution of the land tenure system since the seven-
teenth century. To argue that large landholdings evolved largely as a result
of processes unique to the nineteenth century and, in part, set in motion
by the East’s incorporation into a European dominated world economy is
to neglect those internal processes and indigenous actors that shaped the
development of the land regime since at least the seventeenth century.

The Law, State, and Society

The findings presented here illustrate that legal institutions played a very
important as mediators between individuals and the state. By upholding
individual rights, protecting the public good, and providing a forum for
opposition to certain state interests, the law in effect emerges as the best
indicator that a civil society not only existed, but also thrived in Ottoman
Syria during the period under consideration. This runs contrary to basic
Orientalist presumptions about the relationship between the individual
and the state in the East, which are outlined clearly by Bryan Turner:
The orientalist view of Asiatic society can be encapsulated in the notion that
the social structure of the oriental world was characterized by the absence
of a civil society, that is, by the absence of a network of institutions mediat-
ing between the individual and the state. It was this social absence which
created the conditions for oriental despotism in which the individual was
permanently exposed to the arbitrary rule of the despot. The absence of civil
society simultaneously explained the failure of capitalist economic develop-
ment outside Europe and the absence of political democracy.25
According to such a perception (which Turner incidentally critiques),26
economic development in the East was hindered by inherent deficiencies

25 Bryan Turner, Orientalism, Postmodernism and Globalism (London: Routledge, 1994),

23.
26 For an overview and analysis of Turner’s argument see Gerber, Islamic Law and Cul-
ture, 144–48.
 conclusion 187

in the social and political structure of society. The insinuation here is that
by lacking those mediating institutions that protected the rights of indi-
viduals, Eastern society evolved along a path which failed to balance the
interests of the private vs. public good in any systematic manner. Such
assumptions are brought into question when one examines not only the
role of muftīs in their respective communities and the range of issues with
which they dealt, but also the methodology they employed in coming to
terms with various legal disputes. In the realm of land tenure law, these
thinkers drew on a rich legal tradition in formulating laws related to the
relationship between tenants and landlords. They not only generated a
balanced legal discourse that sought to ensure the rights and obligations
of cultivators and landlords, but they also upheld certain legal standards
that protected against abuse, corruption, and general public insecurity.
Such standards included: the sanctity of contracts, proper legal evidence,
a respect for the sources of law, and recognition and often times accep-
tance of the practices/doctrines of other madhabs. The enterprise of law-
making and the standards associated with it were not simply an invention
of the period under consideration. As Hallaq emphasizes, the evolution
of the law and the role of legal institutions and jurists in their respective
communities were shaped by processes set in motion since the first cen-
tury of Islam.27 Thus, as Gerber points out, the “the victimization of Islam
as a civilization which was unfit for the task to start with, inherently and
of its own nature, is simply wrong.”28
Turner’s statement raises another important issue—does the existence
of civil society (or, more specifically, civic institutions) necessarily entail
privileging private property over public property or, put differently, are
the property rights of the individual (a fundamental right according to
early Western thinkers) sacrificed in a system that does not promote the
sanctity of private property? The case of Ottoman Syria suggests that the
protection of individual rights through mediating institutions was upheld
in a context that promoted the integrity of more publicly oriented lands.
In theory, cultivators working state and waqf lands were not owners of
the land in the strict sense of the word. As this study has illustrated,
however, the law provided a more nuanced understanding of property
relations during this period. For example, legal thinkers, in their articula-
tion of waqf laws, upheld the property rights of individuals vis-à-vis state

27 Hallaq, Islamic Legal Theories.

28 Gerber, Islamic Law and Culture, 145–46.
188 conclusion

forces. Furthermore, although limited in important respects by their sta-

tus as sharecroppers and tenants, it would be inaccurate to describe such
individuals as somehow excluded from the realm of property rights. While
there were injustices in the system at various times, particularly in the
implementation of the law, jurists sought to protect the individual’s right
to property in different ways: by differentiating between different types of
ownership (kirdār vs. raqaba vs. mulk), articulating detailed laws relating
to possession rights over the land, allowing for vehicles that facilitated
the transfer and alienability of theoretically inalienable lands, and pro-
tecting the individual’s right to ensure his/her family’s access to wealth.
Such laws not only worked to the benefit of tenants and sharecroppers,
but also waqf founders and beneficiaries (the creation of a waqf ahlī, for
example, allowed for wealth to be maintained in the family). Ultimately,
the net effect of such laws for tenants on state and waqf lands was that
they often perceived themselves (and acted) as owners of the lands they
cultivated. Thus, ironically, the law at times resulted in the ascendancy
of such tenants at the expense of waqf interests, indicating how layers of
ownership overlapped and, at times, came into conflict.
The final question which needs to be asked here is: are the fatāwā an
indication that the subject classes or the reʿāyā took an active interest in
protecting their own rights? As explained in the introduction, it is not clear
from the legal literature who, in fact, is posing the questions addressed to
the muftīs. Also, it is difficult to ascertain the extent to which legal think-
ers influenced the outcome of any specific dispute or issue. Nevertheless,
regardless of who posed the questions, cultivators (as well as other indi-
viduals) had recourse to justice at the local and even state levels. The
mere fact that such requests or complaints were put forth indicates that
there was an active interest in delineating the rights and obligations of
agricultural producers, be it by the cultivators themselves or the broader
society at hand. In a sense, therefore, the evolution of both the land tenure
system and the legal process was shaped by active interaction between
the state, local forces of authority, and the reʿāyā themselves.
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 Index
Abū al-Suʿūd 6, 32, 39, 59, 78, 82, 84–86,
97, 142, 158, 181
Abū Ḥanīfa 44, 69
Ajlun 27, 79
akçe (Ottoman silver currency) 90
amāna (an entrustment which should
be returned in the same condition in
which it was given) 133
Anatolia 133 n. 89, 134, 138, 179
ʿaqd (contract lasting for three years) 67,
90
ʿaskerī (Ottoman ruling class) 40–41
aʿyān (notables, elite) 9 n. 20, 12
Baghdad 28, 30
barley 27, 30, 99, 129, 137 n. 108
Basra 143
bayt al-māl (public treasury) 10, 33, 38,
59, 83, 85, 99, 120–121, 136, 162, 166
Bedouin 27, 79–82, 180
berāt (official document that grants a
privilege or confers a right or
appointment to a post) 168
bey (district governor) 27, 79
beylerbey (governor) 27, 79
Bursa 50 n. 80, 138, 143, 154, 156
Byzantine 21, 30, 33
Cairo 7, 9, 30, 47 n. 69
cash waqf (see also waqf al-nuqūd) 44
cereal cultivation (see also barley, wheat)
31
Christians (see also dhimmīs) 40
çift bozan resmi; (see qasr al-faddān) 78,
98
civil society 174, 186–187
climate 22, 30, 177
court 1, 6–7, 17–18, 28, 41, 44, 48, 54,
56–57, 83, 102, 112, 120, 134, 138, 143, 145,
152–154, 156–157, 169, 179, 184
court records (sijill) 44
crop 22, 23, 31, 34 n. 23, 49, 51, 61, 63,
67–69, 72–75, 78, 86, 89, 93–94, 99,
101–102, 104, 107, 109, 125–126, 129, 136,
147–148, 166–168, 176 n. 4, 186
custom (see also ʿurf ) 8, 51 n. 81, 55,
66, 70, 93, 106, 119, 121, 123, 143 n. 3, 173,
183
Damascus 3, 7, 9–15, 25, 27–30, 43, 48,
51 n. 82, 53, 60, 79, 100, 120, 123, 138–139,
146–147, 149, 154
daughter 35, 52, 60–62, 95, 107, 154, 156,
158–165
debt 19, 116, 126, 131, 150
defterdar (treasurer) 28
dhimmīs (non-Muslims) 116, 147
dragoman (Ottoman official
interpreter-translator) 28
Egypt 21, 37–38, 59, 83, 117, 134 n. 92, 153,
156, 179
Europe 16, 21–22, 28–29, 133, 177, 186
family waqf (see also waqf ahlī) 46,
59–60, 157
Fertile Crescent 31, 59, 134, 178 n. 13
fiqh (Islamic jurisprudence) 8, 19, 35
firmān (imperial order) 78, 134, 145, 153,
180
France 16, 21–23, 107 n. 2, 175–176
fruit 4, 10, 31, 34, 59, 66–67, 75–77, 88,
107 n. 2, 130, 180
Gaza 27, 79 n. 47, 126
Ghānī ,ʿUbaydu’llah ibn ʿAbd al- 36, 38,
82, 85, 111 n. 16, 116, 129, 136, 148–149,
152, 164
governor 12, 27–29, 79, 150, 168
groves 30–31, 107, 155
ḥadīth 8–9, 69–70
Ḥāʾik, Ismāʿīl ibn ʿAlī al- 10, 34 n. 27, 109,
137–138, 159, 162
ḥākim (administrative judge) 102–103,
150, 168
Ḥanafī 1, 4–5, 9, 11–15, 19–20, 22, 26,
32–33, 36–39, 44, 48, 55, 64, 67–69,
71–73, 76, 90–92, 95, 104, 112, 118, 121,
124–125, 138, 161, 165, 185
Ḥanafī, Muḥibb al-dīn al- 10 n. 24, 11, 50
n. 77, 53, 88, 91, 96, 130, 136, 168
Ḥanbalī 12–13, 67, 69, 77 n. 41, 90, 112, 118,
125, 149–150
ḥaqq al-qarār (possession rights or
usufruct) 35, 84, 86, 87 n. 73, 106–110,
113, 115, 138, 140, 181
200 index
Ḥaṣkafī, Muḥammad ibn ʿAlī ibn
Muḥammad ibn ʿAlī al- 14, 42 n. 50,
43 n. 53, 46 n. 65, 49, 56 n. 110, 82,
121–122, 126 n. 61, 132
ḥikr contract (long-term rental of waqf
property) 117
Ḥusaynī, Nasīb al-Ḥamzāwī al- 43, 83, 115
Ibn ʿĀbidīn, Muḥammad Amīn ibn
ʿUmar 14, 15, 20, 34, 47 n. 68, 49,
51 n. 83, 52–53, 55 n. 106, 63 n. 134,
68 n. 9, 69 n. 11, 71 n. 18, 72, 73 n. 29,
74 n. 32, 75–76, 77 n. 39, 86 n. 68,
102 n. 121, 110 n. 12, 112 n. 20, 113 n. 22 &
n. 24, 114–115, 116 n. 34, 118 n. 40, 120–122,
124, 126 n. 61, 127 n. 67, 128, 132 n. 85,
134, 136, 138–139, 158 n. 64, 159, 160
n. 75 & n. 78, 161 n. 81, 162–165, 166
n. 94, 167, 173
Ibn al-Ḥumām 37, 82
Ibn Nujaym 37–38, 166–167
ijāra (leasing) 20, 66–68, 70, 75–76, 96,
103, 105
ijtihād (independent reasoning) 5, 7–8,
106, 173
iltizām (tax farming) 2, 34, 59, 133–134
ʿImādī
ʿAbd al-Raḥmān al- 10 n. 24, 11, 12
50 n. 77, 77, 81, 91, 92 n. 86, 100
ʿAlī ibn Ibrāhīm ibn ʿAbd al-Raḥmān al-
11–13, 99, 111, 123, 136–137, 160–161
Ḥāmid ibn ʿAlī ibn Ibrahīm ibn ʿAbd
al-Raḥmān ibn ʿImād al-dīn ibn
Muḥibb al-dīn al- 13, 15, 34, 63, 71,
73–76, 85, 102, 109–112, 114, 117,
118 n. 41, 126, 128, 137, 158 n. 64, 159,
161, 166, 169–171, 182
ʿImād al-dīn al- 11
Muḥammad al- 12, 99, 100 n. 111 &
n. 113, 135 n. 97, 137 n. 108, 148–149,
169
imperial grants (temlīk) 59
inheritance 18, 26, 32, 33, 60, 63, 117, 123,
152–155, 157, 159–161, 164–167, 170–171,
177, 182
irrigation 30, 70, 104 n. 124
Istanbul 30
istibdāl (exchange of waqf properties) 56,
57, 89, 117
Jaffa 27
Jerusalem 27, 29, 45, 87, 126, 134, 178
Jew(s) (see also dhimmīs) 40, 116, 130–131,
147, 150
justice 5, 14, 40, 142–143, 174, 179–180,
183, 188
kharāj (tribute/land tax) 19–20, 35–39,
49, 101, 118–119, 136, 138–139, 165–166, 173
muqāsama (based on a proportion of
the crop) 33 n. 23, 36, 39, 78, 98–99,
135, 137
muwazzaf (based on the area
cultivated) 36, 78, 98–99, 102, 135, 137
khulū contract (long-term lease rights
gained through repair made to
­property) 117
kirdār (buildings, repairs, or trees that
peasants added to the land) 35, 51,
83–84, 93–95, 106–110, 111 n. 16, 114–115,
124, 127, 135–136, 140, 159–160, 162–163,
170–171, 177, 181–182, 188
Lajjun 27
lease contract/leasing (see also ijāra) 1,
5, 20, 25, 31, 53, 66–70, 72, 75, 77, 84,
87 n. 73, 89–94, 96, 103, 105, 114–116,
120–125, 140, 175 n. 4, 182
lessee 1, 20, 26, 51, 54, 67, 69, 77, 84, 87,
89–90, 93–96, 99–100, 103, 107, 108 n. 4,
111, 114, 116, 118, 121–127, 140–141, 176 n. 4,
185
livestock 22–23, 72–75, 104, 135
mālikāna (lifelong lease or lifetime tax
farm) 169
Mālikī 70, 77 n. 41, 125
māl faddān (also known as kharaj al-
muwazzaf ) 98
Mamluk 37, 139
market-inspectors 28
mashadd maska (right of usufruct
on state owned or waqf lands) 35,
45 n. 60, 84–86, 99, 106–115, 117–119, 137,
140, 157–164, 181–182
mazraʿa (village lands, both cultivable and
non-cultivable) 100, 110, 117
métayage (sharecropping) 21
mewāt lands (wild, uncultivated land,
distant from populated areas and not
under anyone’s control) 115–116
Middle East 2, 17–18, 21–22, 37,
125 n. 56, 178
mīrī (state-owned land) 32–33, 39, 43, 59,
64, 77–78, 82, 85–86, 90, 97, 110, 117, 136,
149, 156
Mongol 30
 index
mughārasa (a type of cultivation contract
where a peasant who grew trees on the
land would get a portion of the trees
and land in exchange) 124
Muḥibbī, Muḥammad Amīn ibn Fadl Allah
al- 9–12
mühimme/mühimme defterleri (imperial
registers) 78–80, 153, 180
mulk (privately owned land) 1–2, 31–32,
48–49, 107, 120, 155, 188
munāsaba (plantation) 124
Murādī
ʿAlī ibn Muḥammad al- 14, 51 n. 81,
52 n. 85 & n. 87, 53 n. 93, 54 n. 97,
86 n. 69, 93 n. 87, 100, 108 n. 4, 111,
116 n. 37, 126 n. 63, 127, 130 n. 77, 132,
136, 158, 189
Ḥusayn al- 14, 86 n. 69, 93 n. 87, 110,
111 n. 17, 115 n. 29, 158, 164
Khalīl al- 14, 72, 136
Muḥammad Khalīl ibn ʿAli al- 11 n. 27,
12 n. 29, 14
musāqāt (lease of a fruit tree or an orchard
for a certain share of the fruit) 26, 66,
69–70, 72 n. 23, 75–77, 104
mutakallim (administrator) 86 n. 69, 99,
102, 137, 162
mutasallim (governor’s deputy) 28
mutawallī (waqf overseer) 43, 48–56, 64,
87, 91, 94–96, 111, 113–114, 116, 120–123,
125–128, 130–131, 137–138, 141, 160–164,
166–169
muzāraʿa (sharecropping contract) 19–21,
26, 35, 66, 68–71, 75–76, 94, 96–97, 103,
105, 109
muzārʿi (cultivator) 20
Nablus 27, 29, 83, 126, 154
Nābulusī, ʿAbd al-Ghānī ibn Ismāʿīl al-
12–13, 30–31, 34, 44 n. 55, 45, 51 n. 81,
53–54, 56 n. 110, 57 n. 112, 58 n. 114, 62,
72 n. 26, 76 n. 37, 84, 85 n. 65, 87 n. 73,
90, 93, 95, 99 n. 109, 109, 113 n. 23, 116,
122–123, 124 n. 53, 127–128, 130, 133 n. 91,
144 n. 9, 147, 149–151, 158 n. 65, 161,
164 n. 88, 166–168, 170, 173–174
nāyib (local deputy judge) 28
orchard 1, 10, 30–31, 35, 45, 66, 72 n. 23,
88, 91, 102, 107, 110, 126, 127 n. 69, 138,
155
orphans 45, 128–129, 131, 157, 161
Ottoman Land Law 1858 3, 19, 138, 173,
184–185
201
Palestine 6–7, 9, 18, 27, 29, 79–80, 112,
135, 138, 145, 173, 179, 185
possession (see also haqq al-qarār,
mashadd maska) 19–20, 35, 49, 51–52,
66, 78, 82–88, 93, 97, 106, 108, 112–114,
123, 132, 138–139, 147–149, 152–154, 158,
162, 181, 188
private ownership 108, 132, 176
qāḍī (judge) 7, 9, 11, 15, 18–19, 27–28,
32, 41, 44, 48, 76, 78–79, 84, 131–132,
135 n. 97, 141–143, 167–169, 179, 183
Qāḍīkhān, Fakhr al-dīn 57, 82, 89
qanūn (Ottoman state law) 4, 5, 26,
32–33, 49, 64, 77, 85, 106, 108–109,
142–143, 146, 153, 158, 172, 180–182
qasr al-faddān (tax which could be
imposed retroactively on peasants
who abandoned/left the lands they
worked) 98–99, 145–147, 150–151
qism (see also kharaj al-muqassama or
ʿushr) 78, 98–99, 148
Ramla 9, 27, 29
Ramlī, Khayr al-dīn al- 6, 9, 10, 20, 34,
47–49, 51 n. 82, 52, 55 n. 104, 56 n. 111,
57–58, 60–63, 71–74, 82–85, 87, 89,
93–96, 99, 101, 103, 108-110, 111 n. 16,
112, 115, 125 n. 59, 126–128, 129 n. 73,
130 n. 79, 131 n. 82, 132, 133 n. 91, 134–136,
138–139, 146–151, 164 n. 87, 166–167, 170,
173–174
raqaba (ownership which sultan/state had
over arable lands) 39, 43, 77, 82, 103,
185, 188
reʿāyā (subject peoples) 28, 40–41, 86,
97, 188
rent
contractually fixed rent
(musammā) 91, 119, 121
fair rent (ujrat al-mithl) 91–96, 105,
119–128, 140
ribā (interest) 44
sanjaq (district) 27
sanjaq bey (district governor) 27
Sassanid 33
seed 22–23, 25, 68, 70–74, 103–104, 111, 185
sequestrated lands 36
Shāfiʿī 12–14, 67, 69–70, 90, 112, 125,
138–139, 146, 147, 174
sharecropping 1, 3–6, 8, 10, 15–16, 19–25,
31, 51, 66, 68–76, 92–94, 103–105, 109, 111,
113, 146–148, 164, 173–176, 178, 181
202 index
sharīʿa 3–5, 14, 26, 32–33, 41, 47, 49, 64,
76, 85, 88, 106–107, 142–144, 150–151, 153,
158, 163, 168, 170, 172, 180–181
sharīka (partnership) 70
Shaykh al-Islām 32, 41, 81, 86, 100, 123
shuf ʿa (preemption) 132
sipāhī (provincial cavalrymen who
oversaw tīmār lands) 33, 40, 78, 82,
113, 134–138, 147, 149–151, 162
son/sons 34–35, 52, 60–62, 71, 78, 85,
95–96, 107, 128, 137, 145, 156–159, 161,
163–165, 170
subleasing 87, 134, 135 n. 97
Sufī 58–59
sultan 11, 14, 38–41, 47, 59, 80 n. 48,
83–86, 100–101, 118, 135, 158, 162–163,
166–172, 180
sulṭānī (belonging to the sultan) 10, 33,
100–101, 109, 120, 137, 162
tāpū (entry fee) 35, 78, 158–164, 170
taqlīd (accepting the established doctrine
of a religious authority) 8
taṣarruf (right of usufruct) 35, 39, 43, 78,
86, 103, 108, 110–111
tax/taxation 1–3, 19, 23, 26, 28, 33–34,
36–41, 49–50, 59, 60, 64, 66, 77–78, 90,
97–99, 100–103, 106, 109, 132–138, 141,
145–147, 150–151, 153, 165–166, 168–170,
174, 177–185
tax farming (see also iltizām) 2, 34,
133–134, 141, 182
tīmār (rural land grant made by the sultan
to an individual, referred to as a sipāhī,
in exchange for his services) 33–35
tīmārī (provincial cavalrymen who
oversaw tīmār lands) 33–34, 37
tithe (see also ʿushr) 24, 35–36, 39, 59, 145
trade 28–29, 67 n. 5, 79, 81, 113, 133,
178 n. 13
tree(s) 10, 31, 34–35, 44, 51–52, 66–68,
70, 72 n. 23, 75–77, 83–84, 88, 91, 93–96,
101–102, 106–109, 114–116, 119, 125,
126 n. 61, 127, 130, 135–136, 152, 155, 159,
163, 170, 171, 175, 181, 185
tribute (see also kharāj) 35–36, 39
Tripoli 154
ʿulamāʾ 14–15, 32, 36, 40, 58, 94, 98, 120,
143–144, 146, 166, 168, 173, 181
ʿushr (tithe) 33, 35, 98–100, 135 n. 97, 145,
169
usufruct 1, 2–3, 26, 32, 34–35, 39, 43,
78, 84–85, 94–96, 103, 106–112, 115–116,
119, 123, 128, 140, 145, 152–154, 156–165,
170–171, 174–175, 181–182, 185
vegetable garden 1, 31, 107, 155
vineyard 10, 30–31, 35, 107, 110, 116, 139,
155
wage or fair wage (ajr al-mithl) 10, 45,
70–74, 77, 104
waqf
ahlī (family waqf ) 46, 48, 60, 117, 120,
157, 188
beneficiaries 4, 32, 42–47, 49, 50–51,
53, 57, 60–64, 108, 116–117, 120, 124,
128, 130–132, 140–141, 152, 154, 156, 166,
167, 168 n. 102, 185, 188
deed 44–45, 51, 53, 62–65, 78, 89–90,
100–101, 118, 120, 129–131
founder 4, 25, 32, 42, 44–51, 53–56, 58,
60–62, 64, 89, 120, 127 n. 69, 130–131,
140–141, 167, 188
khayrī (charitable waqf ) 45
mutawallī (overseer) 43, 48–56, 64,
87, 91, 94–96, 111, 113–114, 116, 120–123,
125–128, 130–131, 137–138, 141, 160–164,
166–169
nāẓir (manager or supervisor) 47,
50–51, 53, 91, 94, 102, 117, 120, 125,
127–131, 141
nuqūd (cash waqf ) 44
wakīl (guardian) 50, 166
wastelands 34
wheat (see also cereal cultivation) 27, 30,
81, 89, 129, 137
widow 45, 112, 128–129, 131, 154, 161
women 1, 6, 16, 24, 26, 50, 51 n. 80, 60,
62, 98, 123, 128, 142, 152–160, 162–163,
170–171, 182,
zakāt (alms) 132