LAW AND CHANGE: A STUDY OF THE CULTIVATION OF WASTELAND IN THE 16^TH-17^TH CENTURY OTTOMAN EMPIRE

 

 

 

 

Bayram Pehlivan

İstanbul University, İstanbul-Türkiye

 

Ilahiyat Studies    p-ISSN: 1309-1786 / e-ISSN: 1309-1719

Volume 14            Number 2            Summer/Fall 2023               DOI: 10.12730/is.1109963

Article Type: Research Article

Received: April 27, 2022 | Accepted: July 27, 2023 | Published: December 31, 2023.

To cite this article: Pehlivan, Bayram. “Law and Change: A Study of the Cultivation of Wasteland in the 16^th-17^th Century Ottoman Empire”. Ilahiyat Studies 14/2 (2023): 351-393.  https://doi.org/10.12730/is.1109963

This work is licensed under Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International.

 

Abstract

This article examines the nature of legal change in Islamic law through the case of the cultivation of wasteland (iḥyāʾ al-mawāt) in the 16^th-17^th century Ottoman Empire. Imber, one of the leading scholars in modern Ottoman historiography, argues that there was an incompatibility between qānūn and sharīʿah regarding the legal consequences of opening up wastelands (mawāts) for agriculture in the Empire. He asserts that the legal doctrine of the Ḥanafī school gives the right of full ownership (al-milk al-tāmm) to a person cultivating a wasteland with the permission of the ruler (imām), while the Ottoman sultans’ qānūns only grant this person the right of disposal (ḥaqq al-taṣarruf). Imber’s observation about the practice is accurate; however, his claim regarding the Ḥanafī school’s legal doctrine of iḥyāʾ al-mawāt needs revision. This article takes into consideration Ḥanafī nawāzil and fatāwá literature originating from Central Asia and Ottoman Anatolia to demonstrate that the doctrine in question underwent a slow and gradual but essential change over centuries, and then Ottoman Ḥanafī scholars interpreted the practice of the Empire based on this new doctrine, recognizing the sultan’s authority to grant only the right of disposal to those who wished to cultivate the wasteland, suggesting that there was not an actual contradiction between qānūn and sharīʿah on this issue.

Key Words: Central Asia, Ottoman Empire, cultivation of wasteland, iḥyāʾ al-mawāt, Islamic law, qānūn, sharīʿah, legal change, nawāzil, fatāwá, wāqiʿāt, al-milk al-tāmm, ḥaqq al-taṣarruf.

 

Introduction^[1]

There are two main narratives in the literature that explain the nature of the doctrinal growth and change of Islamic law. According to an old narrative embraced by Schacht, Coulson, and Chehata, Islamic law largely completed its growth during the 8^th to 10^th centuries, which is referred to as the formative period.^[2] The pioneer of this narrative, Schacht, claims that during the early Abbasid period, Islamic law was in a dynamic interaction with political, social, and economic developments, but “from then onwards became increasingly rigid and settled into its final form”.^[3] Coulson, taking Schacht’s claim one step further, argues that Islamic law had no connection with practice during the formative period as well. He suggests that the scholars of that period had a speculative and idealistic approach, enabling them to establish a comprehensive and ideal system of rules, but they were “largely in opposition to existing legal practice”.^[4] Moreover, Schacht asserts that Islamic law experienced only some minor changes after the formative period, and these changes “were concerned more with legal theory and the systematic superstructure than with positive law”.^[5] Coulson and Chehata also share this observation in general.^[6]

This was the narrative that gained wide acceptance in the orientalist circles in the second half of the 20^th century. However, throughout the end of the century, this narrative started to be criticized by various researchers whose studies focused on the fatwá institution, such as Johansen,^[7] Hallaq, Gerber,^[8] Bedir,^[9] and Ayoub.^[10] These critics assisted in establishing a counter-narrative for the nature of doctrinal growth and change of Islamic law. This new narrative assumes that Islamic law had a dynamic and viable interaction with real life in every period of history and continued its doctrinal growth and change through a special literary genre called fatāwá, wāqiʿāt, or nawāzil (the compilation of legal opinions) after the formative period. According to this new narrative, when a legal opinion (fatwá) issued by an authoritative jurisconsult (muftī) of a legal school to solve a newly encountered problem reached a certain prevalence and acceptance among other muftīs in the following period, it was usually incorporated into the furūʿ (substantive law) works, particularly commentaries of the school.^[11] Because the practical function of these works “was to provide the jurisconsults with a comprehensive coverage of substantive law” and therefore, they “were expected to offer solutions for all conceivable cases so that the jurisconsult might draw on the established doctrine of his school, and to include the most recent as well as the oldest cases of law that arose in the school”.^[12] In short, the incorporation of fatwás into these works indicated that they became part of the legal doctrine of the school.^[13]

The article, in line with this new narrative, sheds light on the phenomena of the legal change in Islamic law through the practice of cultivation of wasteland (iḥyāʾ al-mawāt) in the 16^th-17^th century Ottoman Empire. It aims to show that the doctrine of iḥyāʾ al-mawāt of Ḥanafī legal tradition underwent a slow and gradual but essential change over a period of centuries in the Central Asia, and then the Ottoman Ḥanafī scholars interpreted the practice in question on the basis of this new doctrine. However, the Ottoman legal-historian Imber claims that there was not a conformity between qānūn and sharīʿah in terms of the practice of cultivation of wasteland in the Empire and thus that the Ḥanafī doctrine of iḥyāʾ al-mawāt was not applied there.^[14] For, according to him, Ḥanafī interpretation of Islamic law gives the right of full ownership (al-milk al-tāmm)^[15] of a wasteland to a person cultivating it with the permission of the ruler, but the Ottoman land law stemming from the orders of the sultan grants only a limited right of disposal (ḥaqq al-taṣarruf) to the person apart from exceptional circumstances. In a similar approach to Schacht, Imber considers that sharīʿah remained unchanged for centuries after the formative period,^[16] and hence, he does not give any credence to the possibility of change in the doctrine. Yet, as will be seen below, while Imber’s observation of Ottoman legal practice is correct, his claim about the Ḥanafī legal doctrine and the relationship between qānūn and sharīʿah needs to be revised.

The article relying on the fatāwá literature, which is largely neglected by Imber, elucidates that the Ottoman Ḥanafī jurists interpreted the authority of sultans over the lands in the broadest sense with an inherited understanding from the Central Asian Ḥanafī legal tradition and authorized them to grant only the right of disposal to the person who wanted to cultivate the wasteland. Therefore, contrary to Imber’s claim, the article argues that there was a clear conformity between qānūn and sharīʿah in this respect. To that end, the first part of the article clarifies the practice of iḥyāʾ al-mawāt in the Empire during the 16^th and 17^th centuries through qānūnnāmahs, farmāns, and the court registers. The second part examines the alteration process of the Ḥanafī doctrine of iḥyāʾ al-mawāt in the Central Asia. The last part deals with the approaches of the Ottoman Ḥanafī jurists of the period to the practice of iḥyāʾ al-mawāt in the Empire.

1. The Practice of Iḥyâʾ al-mawāt in the 16^th-17^th Century Ottoman Empire

The cultivation of wasteland was a widespread practice in the Ottoman Empire, particularly during the era of population growth and territorial expansion in the late 15^th and throughout the 16^th century.^[17] However, it surprisingly occupied a relatively small space both in the qānūnnāmahs regulating the land laws and in the fatwá compilations containing the legal interpretations of the scholars.^[18]

First and foremost, it should be noted here that some of these regulations, which are rarely found in the documents from the 16^th and 17^th centuries, were not actually associated with the theoretical narrative of iḥyāʾ al-mawāt existed in the texts of the Ḥanafī legal tradition. Indeed, these regulations were mainly related to the cultivation of lands that were originally in the status of mīrī (state-owned) land,^[19] located within the boundaries of a sipāhī’s tīmār, but left fallow and vacant for a long period of time while being previously prosperous.^[20]

As clear from the documents, the act of cultivation would change the status of the land in question from mawāt to mīrī.^[21] In other words, in the Ottoman practice, opening up a wasteland granted the occupier a limited right of disposal rather than a right of ownership. This rule was applied to both mawāt lands that were located within the boundaries of a tīmār and the ones that were defined as khārij az-daftar (unregistered) since they were not recorded in the taḥrīr registers as an income for the sipāhīs. However, these lands were subject to different regulations in some aspects. To illustrate these differences more clearly, I will separately examine the practice for each type of land.

1.1. The Cultivation of Wasteland in the Status of Khārij az-daftar

The Qānūnnāmah of Silistre, dated 924/1518, regulates the cultivation of mawāt lands that are in the status of khārij az-daftar. It states:

Clearing the roots from a field or opening it up with axes on this side of Balkan Mountain is acknowledged by ancient law (qānūn-i qadīm). But when the registrar has come and registered the province, the field from which the roots have been cleared is also among the çiftliks of raʿāyā. The occupier’s claim that “he cleared the field” should not be acted upon.^[22]

According to the document, although the raʿāyā clearing the land had the right to manage it as he wished until the new tax survey, it did not mean that he had absolute ownership (raqabah) of the land. In other words, when the mawāt land was cultivated, it henceforth obtained the status of mīrī land. The aforementioned law stipulates that when the registrar of the province came and allocated the land in question to a tīmār, it would be managed according to the rules of the mīrī system like the other çiftliks of the raʿāyā. Because if opening up the land for cultivation entitled the raʿāyā with the right of ownership, it would have been legally impossible for the registrar to allocate it to a tīmār in the new tax survey. In the Qānūnnāmah of 1539 for Vize, sharing similar content, the matter is expressed more clearly:

If a person clears the roots from a plot, he acquires possession^[23] of the plot, and his claim that “I am clearing the roots from the plot” is heard until the arrival of the registrar of the province. However, when the registrar has come and registered the province, the plot from which the roots have been cleared is also like other çiftliks of raʿāyā.^[24]

The last sentence of the quotation explicitly indicates that the cultivated wastelands were subject to the rules of the mīrī system. For example, the requirement of paying ṭapu (entry fee) and the prohibition of leaving these lands fallow for more than three years were also valid for the lands that were cultivated while they were previously mawāt. In this context, the Qānūnnāmah of Vize states more strongly than the Qānūnnāmah of Silistre that the cultivation of wasteland did not provide the right of ownership:

If çiftliks of this sort are left fallow for three years, the sipāhī should give them to someone else in return for ṭapu. If, after three years, he has not plowed [the land], his claim: “I am its owner. I am clearing the roots from it.” should not be acted upon. The sipāhī should reallocate it by ṭapu.^[25]

On the other hand, the same issue is addressed in a qānūnnāmah that seems to belong to Sulaymān the Lawgiver’s reign, but it was published with an attribution to ʿAlī Chāwīsh of Sofia (Tr. Sofyalı Ali Çavuş) since copied by him in 1064/1653.^[26] An article in this qānūnnāmah states that if the raʿāyā cultivated a wasteland that was in the status of khārij az-daftar and in the disposal of no one, including wilderness, forest, and mountain by drilling a well or cutting a tree, it was permissible for the register of the province to allocate these lands as tīmār to qualified persons. Additionally, it clarifies that a sipāhī holding a barāt from the sultan was also eligible to acquire these types of lands before their registration. The last sentence of the article implies that the absolute ownership of the land belonged to the treasury during the period from cultivation until a new tax survey as well.^[27] In fact, another article of the qānūnnāmah addressing the same issue expresses it more clearly by stating:

The official tax collectors occupy [this sort of cultivated wastelands on behalf of the treasury] until the arrival of a new registrar. There is no obstacle for [the registrar] to allocate them as tīmārs to qualified persons who want to obtain them by barāt, since they are in the status of khārij az-daftar. These are just like other tīmārs.^[28]

On the other hand, an article in the Qānūnnāmah of 1539 for the Sanjaq of Bosnia gives the impression that the cultivation process conducted in the regions that were in the status of khārij az-daftar provided the raʿāyā with the right of full ownership. It states:

And persons must draw a border line over the intersection point of their axes when they clear the mountain ... The black mountain does not belong to anyone, [but] it belongs to the cultivator of wasteland, and nobody must interfere [him].^[29]

However, if this article is evaluated together with the aforementioned rules that were prevalent in the same territories during these dates, the last sentence probably alludes that the cultivator of wasteland would obtain only the right of disposal rather than the absolute ownership of the land in harmony with the general practice in the Empire. The article, which apparently aims to protect the cultivator against the unlawful interventions of the local authorities, strongly asserts that he had the right to dispose of the land as he wished without owning it.

When people started to cultivate these wastelands that were previously in the status of khārij az-daftar, they were excused from paying ṭapu-taxes. As a matter of fact, this issue was referred to with the same expressions in two separate edicts sent by Sulaymān the Lawgiver to Lofcha and Albanian judges in May 1549 (awāsiṭ Rabīʿ al-ākhir 956). They state:

[As I have been informed] they [raʿāyā] are clearing and cultivating some plots with their axes, and they [local administrators] are demanding taxes even from people like them. You should inspect and, if they are doing so, prevent them from demanding taxes for the plots that... had no revenue attributed to sipāhīs in the register and were vacant places cleared by them with axes.^[30]

1.2. The Cultivation of Wasteland within the Boundaries of a Tīmār

The cultivation of wasteland within the boundaries of a tīmār which was allocated to a sipāhī as a revenue in the register was subject to different regulations according to whether permission had previously been obtained from the sipāhī or not. So, I will examine the issue separately for both cases below.

1.2.1. Permissible Cultivation

As a rule, the raʿāyā who wanted to open up this type of wasteland for cultivation was first required to get permission from the sipāhī, pay him ṭapu-tax, and then clear and cultivate it within three years. A qānūn, attributed to the time^[31] of Jalālzādah Muṣṭafá (d. 975/1567) and Ḥamzah Pasha (d. 1014/1606), the famous nishānjīs of the 16^th and early 17^th centuries, clearly states:

If a person receives by ṭapu mountainous lands on the soil of a tīmār-holder to clear them with his axe, if he has cleared them within three years, well and good. But if three years pass and he has not cleared them, the tīmār-holder may give the lands by ṭapu to someone else.^[32]

This practice means that the cultivators had the right to acquire only the right of disposal of these lands. According to the mīrī system of the Empire, if any type of land was unjustifiably left fallow and idle during three consecutive years, the raʿāyā would lose their rights over the land, and tīmār-holders were eligible to give it to the others by ṭapu.^[33] The mentioned law stipulates the same duration for cultivated wastelands. However, contrary to the regulations of this system, it explicitly states that no excuses will be accepted for this sort of land.^[34]

The raʿāyā, clearing a wasteland with the permission of the tīmār-holder and by paying him the ṭapu fee of the land, obtained a privileged status for their daughters in the middle of the 16^th century. Until that date, according to the established rule of the mīrī system, the daughters of the deceased mutaṣarrif ^[35] were unable to claim any rights on their father’s lands. If the deceased left a son, the land was transferred to him without an obligation to pay a ṭapu fee like a mulk-i mawrūth (inherited private property).^[36] If the deceased did not have a son but had a brother, the brother could acquire the right of disposal of the land by paying a fee called ṭapu-yi mithl, the amount of which was determined by the expert witnesses. If the deceased had neither a son nor a brother, the tīmār-holder had the right to give it to whomever he wished by ṭapu, but in this case, ṭapu fee was determined by himself. Abū l-Ṣuʿūd’s legal opinion (fatwá) in the Maʿrūḍāt states that Sulaymān the Lawgiver issued an edict in 958/1551,^[37] revising the mentioned qānūn-i qadīm and, for the first time, he granted “ṭapu right”^[38] to the daughter of the raʿāyā who cultivated the land that was previously a wasteland. The question part of the fatwá is related to whether the daughter has the inheritance right when the person clearing the wasteland passes away, leaving a son and a daughter.^[39] In his response, Abū l-Ṣuʿūd firstly explained the common and well-known practice and then conveyed the recent regulation put in place for the cultivated wastelands. It states:

In cases such as this, where [a person] has created fields and meadows by clearing forest and mountain and, in short, has expended money and effort, if such places are assigned to others by title, daughters would necessarily be deprived of the money which their fathers have spent. It has, therefore, been commanded that they will be given to the daughters.^[40]

As indicated in the edict, the practical rationale behind this regulation was that, under the current situation, the daughters were being deprived of the money spent by their fathers in cultivating the mawāt lands. The edict removed this deprivation by giving daughters the ṭapu right. However, the privilege granted to them still indicated a limited right when compared to that of the sons. Indeed, as mentioned in the continuation of the fatwá, unlike the sons, the daughters were also required to pay ṭapu-yi mithl –just like the brothers– to obtain the possession right of the land that their fathers opened up for cultivation.^[41] However, the scope and nature of the daughter’s rights on their deceased father’s lands underwent significant changes over time, ultimately leading to them acquiring inheritance rights similar to those of sons. First of all, the ṭapu right of the daughters was expanded to include the mīrī lands that were originally prosperous and inherited from their fathers in Dhū l-qaʿdah 975/April 1568. Then, in awāʾil Rabīʿ al-awwal 980/July 1572, a new edict came into effect, stating that, in such a case, it would suffice for the daughters to pay the price of the annual yield from the land as ṭapu fee to the tīmār-holders.^[42] Finally, on Jumādhá l-awwal 7, 1263 (April 23, 1847), for the first time, the daughters were granted the right to inherit their father’s land “without the requirement to pay a ṭapu fee”, just like the sons, and more importantly, in cases where the sons were also among the heirs, the daughters were granted the right to inherit it “with an equal share to that of the sons”.^[43] One week later, on Jumādhá l-awwal 14, 1263/April 30, 1847, the inheritance rights of both the sons and daughters were extended to cover the lands left by their mothers.^[44] It is worth saying that the cultivation of mawāt lands marked the beginning of these regulations that gradually came into effect in favor of the daughters of the deceased mutaṣarrifs over centuries.^[45]

In this context, it is important to determine the amount of ṭapu fee that the raʿāyā, who cultivated the wasteland with permission, had to pay to the sipāhīs. However, before delving into this question, it should be noted that, as can be anticipated, the land being in a mawāt condition naturally required the raʿāyā to spend additional labor and money to open it up for cultivation in comparison to the prosperous state-owned (i.e., mīrī) lands. In fact, the qānūnnāmahs and the compilations of fatwás indicate that the raʿāyā showed a strong reluctance to pay the ṭapu-tax to the sipāhīs for the lands that they cultivated by enduring various struggles and obstacles. On the other hand, the cultivation of mawāt lands served as an additional source of income for the sipāhīs. But, the question of whether the tax revenues from the lands cultivated after the tax-survey (taḥrīr) within the boundaries of a tīmār belonged to the sipāhīs or to the bayt al-māl (imperial treasury) occasionally led to tensions between them and the treasury officials.^[46] In the early 17^th century, following a dispute of this kind, Sultan Aḥmad I declared through an edict dated Muḥarram 1018/April 1609 that the tax revenues from these lands belonged to the sipāhīs.^[47]

In fact, with the aim of making the cultivation of mawāt lands more appealing for the raʿāyā, it was expected that the ṭapu-tax either wouldn’t be demanded at all, as it would later be stipulated in the Land Code of 1858,^[48] or at the very least, the amount would be kept at a symbolic level. However, the limited number of legal codes, such as the one attributed to Jalālzādah and Ḥamzah Pasha, clearly stated that the raʿāyā cultivating the wastelands with the permission of the sipāhīs was obliged to pay the ṭapu-tax.^[49] In addition, the governor (mīrliwāʾ) of Trabzon, ʿUmar Beg, who conducted the land survey of the Bozok Province in 1572, noted at the beginning of this survey record that the raʿāyā opening up the idle and vacant places for cultivation were required to make a payment ranging from 15 to 30 aqchahs (Tr. akçe) depending on the fertility of the soil.^[50] The regulation contained within this exceptional document should only be valid for this province and its surroundings. Because the rare examples of the court records shedding light on the issue indicate that this tax was 45 to 50 aqchahs for İstanbul and its surroundings. For instance, in a record from the Üsküdar Court dated 925/1519, a sipāhī named Muṣṭafá Chalabī ibn Saralu states that Qāsim ibn Ilyās, Murād ibn Tashoghlī and his brother Mursal opened up a piece of gravel land for cultivation located in Palidlu village of Gakwize (Gebze) district and he received 45 aqchahs from them as ṭapu-tax.^[51] Furthermore, according to another record dated 988/1580, Darwish ibn Ḥusayn, the sipāhī of Kanlica village located in the Mafraz Kargali subdistrict of Üsküdar, entrusted (tafwîḍ) the right of disposal of a certain amount of mountainous forest within the boundaries of this village to Meḥmed ibn Daniz in exchange for 50 aqchahs as a ṭapu-tax.^[52] In another record dated the same year, it is mentioned that Turakhān Beg ibn ʿAbd Allāḥ, the absolute representative of the same sipāhī, Darwish ibn Ḥusayn, gave a part of mountainous and vacant land belonging to the Alashli Mountain to a raʿiyyah (singular of raʿāyā) named Ilyās in exchange for 50 aqchahs as a ṭapu-tax.^[53] In this context, it should also be noted that during the 16^th and 17^th centuries, although the amount of ṭapu-tax for the prosperous lands located in İstanbul and its surroundings varied depending on the size and fertility of the land, it sometimes reached hundreds, thousands or even tens of thousands aqchahs.^[54] Actually, this clearly indicates that the Ottoman administration kept the amount of the ṭapu-tax required to be paid for the opening up the wastelands for cultivation at a very low level, though not purely symbolic, in order to make it more attractive for the raʿāyā.^[55]

It is understood that the cultivation of wastelands with permission underwent a partial revision in the 17^th century. For, Qawānīn-i ʿUrfiyyah-ʾi Sulṭāniyyah (The Imperial Customary Laws), a legal code compiled by an anonymous Ottoman bureaucrat who appears to have served as a court clerk in this century, clearly stated that no ṭapu payment would be demanded from the raʿāyā who opened up a forest for cultivation with permission; instead, it would be sufficient for them to pay only “a few aqchahs” to the tīmār-holder.^[56] But it is not clear whether this rule, imposed on the forests in the 17^th century, applied to all types of wastelands or not. However, the document still shows that when it came to the cultivation of forests, no ṭapu-tax was demanded from the raʿāyā; instead, a symbolic fee under the name of idhn aqchahsi (permission fee) or ijāzat aqchahsi (authorization fee) was received.

By the middle of the 19^th century, a substantial change took place in this respect. Although the Land Code of 1858 accepted the cultivation of wasteland as a means of obtaining only the right of disposal of the land, as it had always been, it clearly stipulated that ṭapu-tax would no longer be demanded for the wastelands cultivated with the permission of land officials who had replaced the status of sipāhīs as the holders of the lands at that time.^[57] The commentators of the code stated that, in practice, the raʿāyā were not demanded to pay the ṭapu-tax in such cases, but they were only obliged to pay a kind of transaction fee under the name of “three gurūshs (piastre) for paper cost and one gurūsh for clerkship” and then “a ṭapu title deed” was given to them for free.^[58]

1.2.2. Unpermitted Cultivation: A Tension Between Sipāhīs and Raʿāyā

The unpermitted cultivation of wastelands within the boundaries of a tīmār also provided a limited right of disposal for the raʿāyā themselves. The issue, occasionally encountered in various legal codes from the 16^th to the 17^th centuries, was also included in the general code of Sulaymān the Lawgiver, known as Qānūnnāmah-ʾi ʿUthmānī (The Ottoman Imperial Code).^[59] According to this code, the raʿāyā cultivating the wastelands without permission from the tīmār-holders had the right of disposal over the land for three^[60] years.^[61] However, if the ṭapu-tax was not paid at the end of that period, the land could be transferred to someone else. In this case, the right to acquire disposal rights of the land by paying the ṭapu-tax to the tīmār-holders, primarily belonged to the person who opened it up for cultivation. However, if this person refused to pay the ṭapu-tax, then the tīmār-holder could allocate the land to someone else in exchange for it.

The cultivation of wastelands without permission led to serious tensions between the raʿāyā and the sipāhīs in the early 17^th century. Apparently, the raʿāyā, who might have been inclined to consider the act of cultivation alone sufficient to obtain the right of disposal of the wasteland, and perhaps even ownership of it, were unwilling to pay the ṭapu-tax to the sipāhīs to secure this right. It is probably for this reason that the wastelands were generally preferred to be cultivated by the raʿāyā without permission from the sipāhīs. However, the sipāhīs, who suffered significant loss of revenues because they couldn’t obtain a ṭapu-tax in such cases, either personally or through other local officials (this is not clear in the documents) brought the issue to the attention of the sultan. The petition, dated Dhū l-qaʿdah 11, 1017/February 16, 1609, stated that the raʿāyā cultivating the wastelands without permission claimed that the ṭapu-tax would be invalid because they had started to pay tithe (ʿushr) and tax (rasm-i chift) to the tīmār-holder.^[62] It was emphasized in the same petition that “a farm in the vicinity of İstanbul was given to the raʿāyā for twenty to thirty thousand aqchahs, and in some regions for five to ten thousand aqchahs, and in each region in the Empire for a significant amount of aqchahs” and thus pointed out that “if this actual situation were accepted, then the raʿāyā would have the right to disposal the state-owned and endowed lands as private property and therefore, especially the tīmār-holders, who have participated in campaigns for twenty to thirty years, would have been wronged”.^[63]

In response to the petition, Sultan Aḥmad I issued an edict on Muḥarram 1, 1018/April 6, 1609 ordering those who opened up wastelands for cultivation without permission to pay the ṭapu-tax to the tīmār-holders.^[64] In return for the attitude of the raʿāyā who claimed the ownership of the wastelands, they opened them up for cultivation and therefore refused to pay the ṭapu-tax to the tīmār-holders, the edict, highlighting the sultan’s authority over these lands, strongly showed that the raʿāyā only acquired the right of disposal over these lands rather than the ownership of them and hence, they were obliged to get permission from the sipāhīs who was the deputy of the sultan and to pay ṭapu-tax in order to gain this right.^[65]

In short, the rules governing the practice of cultivation of wastelands during the 16^th-17^th century Ottoman Empire were determined by the edicts of the political authority or the legal codes consisting of them. The political authority or its local representatives in the provinces, known as tīmār-holders, granted the raʿāyā only the “right of disposal” over the wastelands, whether cultivated with permission or without. The absolute ownership of the lands, in all cases, belonged to the imperial treasury. Therefore, Imber is correct in claiming that the practice of cultivating wastelands in the Empire had its source in the “sultanic law”.^[66] However, his claim that this practice was in conflict with the Ḥanafī interpretation of the sharīʿah does not appear to be accurate. This issue will be elaborated upon in the subsequent sections of the article.

2. The Change in the Ḥanafī Doctrine of Cultivating Wasteland in Central Asia

This section will first present a summary of the classical Ḥanafī doctrine of iḥyāʾ al-mawāt in terms of the boundaries of the sultan’s authority over the wastelands. Then, the coming section will explain that a new interpretation emerged on this subject in the second half of the 4^th/10^th century with Abū l-Layth al-Samarqandī (d. 373/983) in Central Asia. Finally, the last one will elucidate that this interpretation was increasingly quoted in the fatāwá literature that was compiled in the same region during the following centuries, and then it became a part of the Ḥanafī substantive law through its incorporation into the sharḥ literature.

2.1. The Classical Ḥanafī Doctrine of Cultivating Wasteland: An Overview Regarding the Boundaries of the Sultan’s Authority

The cultivation of wasteland, one of the oldest methods for acquiring the right of disposal or ownership of agricultural lands, has evolved into an integral part of Islamic substantive law, stemming from various practices of Prophet Muḥammad and the Rightly-Guided Caliphs,^[67] and in the main sources of the Ḥanafī legal tradition, it has been dealt with either as a separate chapter or as a sub-chapter within the chapters titled kitāb al-shirb (the book of water sharing) or kitāb al-zakāh (the book of almsgiving).

In Ḥanafī legal doctrine, there are varying approaches regarding the definition of “mawāt land”. However, according to the view that serves as the basis for legal opinions within the school, the lands that are currently unusable because of infertility and unsuitability for agriculture due to drought, flood, etc., which are ownerless or their owners are unknown, are all considered mawāt land.^[68] Iḥyāʾ, which means to open up the mawāt land for agriculture, includes procedures such as irrigation, digging channels, making fountains, removing stones from the soil, drying the swamp, planting grain, planting trees and constructing buildings on the land.^[69] The person claiming the land with this purpose first subjects it to a process called taḥjīr or iḥtijār and, as part of this process, surrounds the land with stones, bushes, or dry trees. Although taḥjīr is not sufficient to obtain the right of disposal or ownership of the land, it grants the person the right to cultivate the land ahead of others within a three-year period. However, the land that is not cultivated within three years returns to the status of mawāt, and the ruler (imām) can reallocate it to whomever he wishes.^[70]

The question of whether the permission of the ruler is a requirement for acquiring ownership right to wasteland through cultivation is a subject of discussion in the doctrine. While Abū Ḥanīfah stipulates obtaining the permission of the ruler for this, Abū Yūsuf and Muḥammad ibn al-Ḥasan al-Shaybānī consider the cultivation of the wasteland alone to be sufficient. The Imāmayn (i.e., the two latter jurists) mainly rely on the literal meanings of these prophetic narrations: “The person cultivating the wasteland owns it”.^[71] and “The one who cultivates the ownerless land is more deserving of its ownership than anyone else”.^[72] They also argue, by comparing wastelands with the permissible properties (al-amwāl al-mubāḥah) such as water, wood, grass, prey, mines, or buried treasures, that the person cultivating these lands ahead of anyone else will obtain ownership of them without requiring permission from the ruler.

On the other hand, Abū Ḥanīfah, in this context, pays attention to these narrations of the Prophet Muḥammad: “ʿĀdiyy al-arḍ^[73] belongs to Allah and His Messenger, then it is yours”.^[74] and “A person cannot have anything without the consent of his ruler”.^[75] He, therefore, associates such actions of the Prophet with his rulership (imāmah) and views the authority of the ruler as a measure “to prevent chaos and rights violations and to maintain the order in the cultivation of these lands”.^[76] To put it more clearly, according to him, the cultivation of wastelands is, in fact, a matter of politics (siyāsah) rather than sharīʿah.^[77] Additionally, he argues, by comparing wastelands with spoils of war or treasury properties, that no one can claim ownership right over these lands without the permission of the ruler.^[78]

The view relied upon as the basis for legal opinions (muftá bih) in the school is that of Abū Ḥanīfah. However, the mainstream Ḥanafī legal texts usually quote this view with the sentence: “The person cultivating the wasteland owns it”. and do not provide a detailed explanation regarding the authority of the ruler over these lands.^[79] The absolute language of these legal texts seems to imply that the authority of the ruler is limited to granting full ownership of the land in question to the relevant person. As can be seen below, Ottoman Ḥanafī jurists of the 16^th and 17^th centuries have thus occasionally grappled with questions such as:

While it is clearly stated [in the legal texts of the school] that Zayd cultivating the wasteland with the permission of the ruler obtains full ownership of it, why does not he obtain it in our time, and why does it not pass to his heirs when he dies?^[80]

In his analysis of the issue, Imber confines his examination of the school’s doctrine of cultivating wasteland to only two main legal texts,^[81] and perhaps for the same reason, he states that there was a clear inconsistency between the Ottoman practice and the Ḥanafī doctrine in this respect, and hence he claims that the practice in question was, in fact, established by the “secular law” independently of sharīʿah.^[82] According to his research findings, in contrast to the prevailing view of the Ḥanafī school, the Ottoman sultans did not grant the persons cultivating the wastelands full ownership rights but a limited right of disposal of them, regulated by the rules of the mīrī system. This analysis is based on the assumption that according to the view of Abū Ḥanīfah, the sultan (i.e., imām) did not have the authority to grant only the right of disposal to the person cultivating the wasteland. Nevertheless, as elucidated in the preceding section, although Imber’s observation regarding the Ottoman practice is accurate, the assumption he makes regarding Abū Ḥanīfah’s view and the claim he puts forth based on it require revision. The Ḥanafī nawāzil and fatāwá literature compiled in Central Asia and Ottoman Anatolia, which he largely ignored in his study,^[83] makes this revision imperative.

2.2. The Early Doctrinal Discussions in Central Asia

One of the leading jurists of the Central Asian Ḥanafī legal tradition, Abū l-Layth al-Samarqandī, in his work titled Fatāwá l-nawāzil, indicates that a practice similar to the Ottoman experience regarding the cultivation of wasteland existed in this region during the first half of the 4^th/10^th century.^[84] He relates that another prominent Ḥanafī jurist of the region, Abū l-Qāsim Aḥmad ibn Ḥām ibn ʿIṣmah al-Balkhī al-Ṣaffār (d. 336/947), was asked a question about whether the imām could grant permission to someone who wished to cultivate a wasteland on the condition that “he does not own it, but only benefit from it”, and he responded as follows:

If this person cultivates the land, he will own it because the condition proposed by the imām is invalid. It is just like when the imām demands that a person can hunt as long as he doesn’t own the prey or gather wood from the mountains as long as he doesn’t own it, or that a married couple can engage in liʿān^[85] as long as they don’t separate. It is the same in this case.^[86]

Even though al-Ṣaffār asserts that the cultivation of a wasteland under this condition gives the person full ownership, al-Samarqandī is of the opinion that this is a response consistent with the view of Abū Yūsuf and al-Shaybānī.^[87] Indeed, as mentioned above, the Imāmayn compare wastelands to permissible properties like prey and wood and hence argue that a person who cultivates such a land will own it without the need for the imām’s permission. In his response to this question, al-Ṣaffār, basing his argument on their view, concludes that the condition put forth by the imām is not valid for the cultivation of wastelands just as it is not valid for the permissible properties. However, al-Samarqandī, giving the impression of not agreeing with al-Ṣaffār’s mentioned fatwá, answered the same question, this time basing his response on the view of Abū Ḥanīfah, as follows:

However, according to Abū Ḥanīfah’s view, this condition is valid because no one can own the land without the permission of the ruler. Therefore, if the ruler does not allow the relevant person to own the land, it means that the ownership right does not occur for him.^[88]

Al-Samarqandī’s interpretation is in line with Abū Ḥanīfah’s general approach. As I noted earlier, Abū Ḥanīfah, considering the cultivation of wastelands as a matter of politics with reference to various narrations of the Prophet, acknowledges that the authority to decide under what conditions these lands should be cultivated belongs to the ruler.

2.3. From Fatwás to Shurūḥ: The Incorporation of al-Samarqandī’s Interpretation into the Ḥanafī Legal Doctrine

The interpretation that al-Samarqandī developed based on Abū Ḥanīfah’s approach to the problem also appeared in other important examples of nawāzil and fatāwá literature compiled in Central Asia during the later centuries. Some of these examples include: al-Wāqiʿāt of al-Ṣadr al-Shahīd (d. 536/1141), al-Fatāwá l-Walwālijiyyah of al-Walwālijī (d. after 540/1146), Majmūʿ al-nawāzil wa-l-wāqiʿāt wa-l-ḥawādith of al-Kashshī (d. 550/1155), Khulāṣat al-nawāzil of al-Yazdī^[89] (d. after 559/1164), al-Muḥīt al-Burḥānī, Dhakhīrat al-fatāwá, and Tatimmat al-fatāwá of Burḥān al-Sharīʿah al-Bukhārī (d. 589/1193), and al-Fatāwá l-Ghiyāthiyyah of Dāwūd ibn Yūsuf al-Khaṭīb^[90] (d. first half of 7^th/13^th century).

First, considering that these compilations consist of the fatwás related to commonly encountered events in the Central Asian Islamic community,^[91] it is evident that the question of whether the rulers have the authority to give permission to people who wish to cultivate wastelands on the condition that they acquire only the right of disposal of the land remained a dynamic issue in this region during the 12^th and 13^th centuries.

Among these scholars, al-Kashshī, compiling the legal opinions of Abū Bakr Muḥammad ibn al-Faḍl (d. 381/991), Abū l-Abbāṣ Aḥmad ibn Muḥammad al-Nāṭifī (d. 446/1054), and the other prominent scholars of the Ḥanafī school in his work, quotes exactly the mentioned words of Abū l-Layth al-Samarqandī.^[92] In his work summarizing al-Fatāwá l-nawāzil, al-Yazdī also conveys al-Samarqandī’s statements just as they are.^[93] al-Ṣadr al-Shahīd and al-Walwālijī, who seem to consider Abū Ḥanīfah’s view to be correct (taṣḥīḥ) and give it preference (tarjīḥ),^[94] respond the question by ignoring the views of the Imāmayn. They state:

If the imām gives permission to a person to cultivate a mawāt land on the condition of not acquiring its ownership but only benefitting from it, he does not own the land upon cultivating it. Because this condition is valid according to Abū Ḥanīfah, as, in his view, no one can own it without the permission of the imām...^[95]

In this context, both two scholars do not mention the names of Abū l-Layth al-Samarqandī and Abū l-Qāsim al-Ṣaffār. However, Burḥān al-Sharīʿah al-Bukhārī addresses the issue that a farmer abandons a mawāt land after cultivating it with the permission of the imām and leaves it fallow, realizing that the land is not suitable for agriculture, and then, another farmer tills the same land with the imām’s permission as well. He states here that it is a controversial issue among the Ḥanafī scholars whether the first farmer can take the land from the second one or not and emphasizes that the scholars’ responses to the question of “whether the cultivator of the wasteland, with the permission of the ruler, will obtain full ownership of the land or only the right of disposal”^[96] determines their positions in this discussion. According to his narrative, al-Ṣaffār,^[97] accepting that the person who cultivates the mawāt land with the permission of the imām will only have the right of disposal, argues that as long as the first farmer cultivates the land, he will have more rights over it than anyone else, but if he abandons it and leaves it fallow, he will lose this right. On the other hand, the majority of the Ḥanafī scholars, who acknowledge that the act of cultivation grants full ownership of the land to the person, argue that the first farmer can reclaim the land from the second one in any case. As can be noticed, there is a clear contradiction between Burḥān al-Sharīʿah’s narrative in terms of al-Ṣaffār’s view on the issue of cultivating the mawāt land with permission and the narrative of the other Ḥanafī scholars mentioned above, including al-Samarqandī. For, according to the narrative of al-Samarqandī and his followers, al-Ṣaffār states that even if the imām explicitly gives permission for the cultivation of the mawāt land on the condition of only benefiting from it, this condition would not be valid, and the person cultivating the land would have full ownership over it. This contradiction probably arises from Burḥān al-Sharīʿah’s erroneous narrative. He must have mistakenly attributed this view to al-Ṣaffār instead of al-Samarqandī.^[98] However, Burḥān al-Sharīʿah’s other analysis is of considerable significance, indicating that this interpretation, which actually belongs to al-Samarqandī, had not yet gained widespread acceptance among the Ḥanafī scholars at that time and therefore had not reached a high position in the hierarchy of intra-school legal views.

Dāvūd ibn Yūsuf al-Khaṭīb, on the other hand, transmits the narrative of al-Samarqandī and al-Ṣadr al-Shahīd in al-Fatāwá l-nawāzil and al-Wāqiʿāt respectively with a slight difference in wording and points out the divergence between the views of Abū Ḥanīfah and the Imāmayn on this matter.^[99]

The interpretation developed by al-Samarqandī based on Abū Ḥanīfah’s view began to be quoted in later centuries in the Ḥanafī school’s literature of commentary (sharḥ), thus completing the process of becoming a part of the legal doctrine. Some of the works referring to this approach include: Jāmiʿ al-muḍmarāt of Yūsuf ibn ʿUmar al-Kādūrī (d. 832/1428-9), al-Hidāyah of Burhān al-Dīn al-Marghīnānī (d. 593/1197), al-Ikhtiyār of ʿAbd Allāh ibn Maḥmūd al-Mawṣilī (d. 683/1284), Tabyīn al-ḥaqāʾiq of ʿUthmān ibn ʿAlī al-Zaylaʿī (d. 743/1343), al-ʿInāyah of Akmal al-Dīn al-Bābartī (d. 786/1384), al-Bināyah of Badr al-Dīn al-ʿAynī (d. 855/1451), al-Baḥr al-rāʾiq of Zayn al-Dīn Ibn Nujaym (d. 970/1563), Majmaʿ al-anhur of Shaykhīzādah ʿAbd al-Raḥmān (d. 1078/1667), Radd al-mukhtār of Muḥammad Amīn Ibn ʿĀbidīn (d. 1252/1836).

Al-Kādūrī, among these scholars, quotes al-Ṣadr al-Shahīd’s words identically.^[100] The scholars, except Ibn ʿĀbidīn, generally content themselves with summarizing the narrative made by Burḥān al-Sharīʿah.^[101] The late-period Ḥanafī scholar from Damascus, Ibn ʿĀbidīn, on the other hand, does not feel the need to refer to any previous legal authorities in this context since it appears that al-Samarqandī’s interpretation has already become an integral part of the school’s legal doctrine by this time. Hence, he just states that according to Abū Ḥanīfah, if the sultan allows a person to cultivate a mawāt land on the condition of just benefiting from it, the person has only the right of disposal, while according to the Imāmayn, he has the right of full ownership.^[102]

3. The Approaches of 16^th and 17^th Centuries Ḥanafī Scholars towards the Problem of Cultivation of Wasteland

The Ottoman state, which gradually evolved into a universal empire starting from the mid-15^th century, underwent a shift in its priorities after the 1530s and instead of expanding its borders through conquest, began to concentrate on establishing a strong centralized government within the existing territories.^[103] Like many other empires during the classical era, the primary source of income for the Ottomans was agricultural taxes. Consequently, the Empire’s ability to strengthen its central authority and influence was heavily based on the equitable taxation of agricultural lands and the effective collection of taxes. During this period, as the central government implemented various administrative measures to reassert control over the lands, the Ottoman scholars, particularly the shaykh al-islāms, also exerted a considerable effort to explain the legal basis of the land system of the Empire.^[104]

In this historical context, one of the main issues that preoccupied the scholars was the legal boundaries of the sultan’s authority over the mawāt lands. To explain this, they primarily relied on the new interpretation developed by al-Samarqandī, often citing the important sources of Central Asian Ḥanafī legal tradition, such as al-Fatāwá l-Walwālijiyyah and Dhakhīrat al-fatāwá. For instance, some of these scholars include Chīvīzādah Muḥyī al-Dīn Meḥmed (d. 954/1547) and Bālīzādah Muṣṭafá (d. 1073/1662) among the shaykh al-islāms, as well as Pīr Meḥmed al-Uskūbī (d. 1020/1611), a muftī from the province Uskub (Skopje), and ʿAlī al-Nithārī,^[105] known as Muḥyī-ʾi Qayṣarī, who served as “the muftī of Qayṣarī”.

Chīvīzādah quotes the interpretation in question separately from the works of al-Walwālijī and al-Kashshī, just as it is.^[106] As understood from another fatwá by Chīvīzādah, he regards the legal nature of the relationship between sipāhī and raʿāyā as being invalid lease contract (ijārah fāsidah) in these cases.^[107] Bālīzādah refers to al-Fatāwá l-Walwālijiyyah as well, but he rearticulates this interpretation in his own words, as follows:

According to Abū Ḥanīfah, if the ruler allows a person to cultivate a [mawāt] land on the condition of only benefitting from it, he cannot own it. However, if he gives permission by transferring the ownership of the land to him, then he becomes the owner.^[108]

In the question part of a fatwá^[109] addressed to al-Uskūbī, it is asked that how, despite the fact that the mainstream legal texts of the Ḥanafī school clearly state that the person cultivating the wasteland with the permission of the ruler owns it, the Ottoman sultans, in practice, grant the raʿāyā only the right of disposal over the land.^[110] In his response, he states: “If the permission [of the ruler] does not include the right of ownership, but only of disposal, then [the person] does not acquire ownership as clearly explained in the fatāwá [literature]”. He specifies here that the view expressed in the texts of the school as “the person who cultivates a wasteland with the permission of the ruler becomes its owner”, contrary to what is initially understood, does not solely limit the authority of the ruler to granting full ownership of the land. Instead, it also gives the ruler the authority to grant only the right of disposal over it. He, at the end of his response, cites al-Walwālijī verbatim, stating that this explanation is found in the fatāwá literature.^[111]

ʿAlī al-Nithārī was also asked the following question, which is, in fact, a reflection of the confusion caused by the tension between the literal meaning of the legal texts of the school and the Ottoman practice: “Does Zayd own either the ultimate ownership (raqabah) or usufructs (manāfiʿ) of the wasteland that he cultivated with the permission of the ruler?”^[112] Al-Nithārī answers the question by stating that: “It is controversial. According to the majority of the scholars, he owns the ultimate ownership of the land, while some others argue that he owns only its usufructs”. He then quotes exactly the narrative related to this issue, as it appears in Dhakhīrat al-fatāwá of Burḥān al-Sharīʿah al-Bukhārī, which was previously mentioned.^[113] In his response, al-Nithārī, translating al-Bukhārī’s words verbatim into Ottoman Turkish implies that the view accepting that the ruler has the authority to allow the cultivation of a wasteland only on the condition of benefitting from it is still a marginal view in the school at that time.

Moreover, some of the leading shaykh al-islāms of the period, such as Abū l-Ṣuʿūd (d. 982/1574), Khwājah Saʿd al-Dīn (d. 1008/1599) and Meḥmed al-Bahāʾī (d. 1064), considering the existing practice in the core lands of the Empire, interpreted the authority of the sultan over mawāt lands in the broadest sense and gave him the authority to grant not only the right of ownership but also of disposal to the person cultivating the wasteland, drawing from an inherited understanding from the Central Asian Ḥanafī legal tradition. The analysis of Abū l-Ṣuʿūd’s various fatwás addressing the issue of opening up a wasteland for agriculture clearly shows that he adopted this understanding. When the edict of 958/1551, which granted the “ṭapu right” for the daughters of the raʿāyā who cultivated the mawāt lands, came into effect, it appears that they attempted to extend their privileges to the already cultivated mīrī lands as well. Therefore, the sultan later issued another edict by declaring: “If the land in the possession of deceased Zayd is not a place that he previously cleared with his own axe and put labour into, then it should not be granted to his daughter!”^[114] Abū l-Ṣuʿūd was asked whether the meaning of the word “a place that he previously cleared with his own axe and put labour into” mentioned in the edict refers to “the cultivation of mawāt land”.^[115] In his relatively long response to this question, he first states that the right of disposal over the mīrī lands, including the prosperous lands and the ones that had been initially wastelands but were opened up for agriculture, has been transferred to the raʿāyā through an invalid lease contract.^[116] This part of the fatwá is important because of two reasons. Firstly, he states here that the cultivated wastelands acquire the status of mīrī lands. This actually means the legal confirmation of a practice that is clearly seen in the qānūnnāmahs and the court records of the period. Secondly and more importantly for the problem addressed in this research, he acknowledges that the sultan can grant only the right of disposal over a wasteland to the person wishing to cultivate it in return for a fee. As mentioned previously, in practice, the raʿāyā requesting to cultivate a wasteland were required to get permission from the sipāhī as being the deputy of the sultan, to pay him the “ṭapu-tax” and then to open up the land for agriculture within three years. As can be seen both in the continuation of this fatwá and in his other fatwás, he interprets the legal contract between the sipāhī and the raʿāyā as “an invalid lease” (ijārah fāsidah) due to the unclear duration of disposal by the latter and he also considers the payment of ṭapu-tax, which has been a prevalent practice in the Empire, as an “advance fee” (ujrah muʿajjalah).^[117] In fact, this interpretation is nothing more than the application of the understanding inherited from Abū l-Layth al-Samarqandī to the Ottoman context. Indeed, according to the analysis of al-Samarqandī, Abū Ḥanīfah is of the opinion that the imām has the authority to grant only the right of disposal over the mawāt land to the person who wish to cultivate it. In this case, the transfer of the right of disposal can be either in the form of “loan” (ʿāriyah), or “lease” (ijārah). Abū l-Ṣuʿūd, taking the existing practice of the Empire into account, makes his interpretation in line with the second one.

Abū l-Ṣuʿūd, who considers the ṭapu agreement conducted between the sipāhī and the raʿāyā as an invalid lease contract, states that “even if the contract is valid, it become null and void due to the death of the tenant”,^[118] and in such a case, according to sharīʿah, the sipāhī can give the land to another person in exchange for an advance fee. He also mentions that when a mutaṣarrif of a land passes away and leaves behind his son, it is considered “good and well” (mustaḥsan) by the sultan for his son to inherit land in question free of charge, and this practice is deemed as an “established law” (qānūn-i muṭṭarid).^[119] Abū l-Ṣuʿūd, who, in the same context, asserts that the daughter and sister of the deceased mutaṣarrif also have the ṭapu right on the land, mentions that various edicts contain different statements regarding the amount of the tax to be demanded from them in such cases, and particularly emphasizes that “The noble sharīʿah does not provide a positive or negative ruling in any of these practices.^[120] In the continuation of the fatwá, he emphasizes again that the act of cultivation does not make a person the owner of the land.^[121] Lastly, drawing attention to the labor and aqchahs invested by the raʿāyā in order to open up the land for agriculture, he states that it would be appropriate, in terms of the ultimate goals of the sharīʿah and the protection of the raʿāyā’s rights, for the sultan to enact some just regulations regarding these lands.^[122] In short, in harmony with the view of Abū Ḥanīfah, who evaluates the cultivation of mawāt lands within the scope of politics, Abū l-Ṣuʿūd indicates that the sharīʿah entrusted all the matters regarding the administration of these lands to the discretion of the sultan.

In the question part of another fatwá addressed to Abū l-Ṣuʿūd, it is stated that some meadows, which have been cultivated from wasteland and used under the name of “bālṭahliq” (copse) in Rumelia, are being transferred to the heirs according to the Islamic inheritance rules and are bought and sold among the raʿāyā, moreover their taxes are neither paid to the imperial treasury nor to the local administrators,^[123] and it is asked whether these meadows are private property (mulk) or not. This question clearly shows that, in practice, at least some of the lands opened up for cultivation by the raʿāyā were treated as private property. However, in his response to the fatwá, Abū l-Ṣuʿūd states that this practice is contrary to the sharīʿah, emphasizing that the person wishing to cultivate a mawāt land should first get permission from the sipāhī, and even if this is done, he asserts, the act of cultivation does not confer ownership but only the right of disposal, and in this case, he is obliged to pay the taxes of the land to the sipāhī.^[124] Furthermore, referring again to the effort expended by the raʿāyā in cultivating the land, Abū l-Ṣuʿūd says that according to the imperial laws, after their death, the land would pass not to someone else but to their heirs, and neither they nor the heirs can engage in transactions that transfer ownership of the land.^[125] He clearly opposes the buying and selling of these lands among the raʿāyā due to the fact that the cultivated wasteland obtains mīrī status and its ownership belongs to the imperial treasury. However, he does not consider completely denying this prevalent practice in society; instead, he resorts to another legal formula to establish a legitimate solution. According to this formula consisting of farāgh (renouncement) and tafwîḍ (delegation) procedures, the raʿāyā renounces his right, that he acquired by cultivating the wasteland, in favour of someone else and in return for a fee, and delegates to him the right of disposal over it, and then, the sipāhī rents out the same land to the same person with a ṭapu-tax.^[126] As noticed, in this case, the new mutaṣarrif of the land makes two separate payments; to the previous mutaṣarrif under the name of badal-i farāgh (renouncement cost) or badal-i tafwîḍ (delegation cost) and to the sipāhī under the name of “ṭapu-tax” which is, in fact, ujrah muʿajjalah according to Abū l-Ṣuʿūd.

Khwājah Saʿd al-Dīn, like his predecessors Chīvīzādah Muḥyī al-Dīn Meḥmed and Abū l-Ṣuʿūd, accepts that the sultan has the authority to give permission the cultivation of wasteland on the condition of only benefitting from it. However, in contrast to them, he interprets the relationship between the raʿāyā and the sipāhī as “ʿāriyah” (loan) rather than “ijārah fāsidah” (invalid lease contract) in these cases. For instance, in a fatwá addressed to him, it is stated that Bakr dug a well, with the permission of the sipāhī, in a tīmār land located a hundred dhirāʿs^[127] away from a spring well in Zayd’s land that he had endowed to his sons through a valid endowment. Bakr conveyed the water coming out of the well to a suitable place by means of a channel, and built a fountain there, and endowed it. However, this caused a decrease in the water of the spring well. It is asked whether the trustee (mutawallī) has the right to demolish Bakr’s well.^[128] In this context, it should first be noted that, according to the Ḥanafī legal doctrine of cultivating wasteland, an area with a radius of five hundred dhirāʿs, located around the spring in the cultivated wasteland with the permission of the sultan is defined as ḥarīm and the disposal of this area is also allocated to the cultivator as a kind of servitude right (ḥaqq al-irtifāq).^[129] In his response, Khwājah Saʿd al-Dīn states that if the spring well located within the wasteland is cultivated and owned by the permission of the sultan and later endowed, then the trustee “has the right to prevent another person from disposing of properties in the boundaries of the ḥarīm. However, he adds: “The owning of the wastelands by cultivating them in this way is not known in this region”, and “the ultimate ownership of them belongs to the imperial treasury, and they are granted to the cultivators as a loan (ʿāriyah)”.^[130] Nevertheless, the term ʿāriyah means “the transfer of the usufruct of a property to another person without any charge”, but, in the Ottoman practice, when it comes to the cultivation of a wasteland within the boundaries of a tīmār the raʿāyā was required to pay the ṭapu-tax as an entry fee to the sipāhī. Therefore, it can be said that Abū l-Ṣuʿūd’s interpretation of ijārah fāsidah is much more appropriate in describing the legal nature of the relationship between the sipāhī and the raʿāyā.

Al-Uskūbī and al-Bahāʾī apparently accepts that the sultan has the authority to allocate only the right of disposal over the wasteland to those who wish to cultivate it. In such cases, they interpret the relationship between the sipāhī and the raʿāyā as ijārah fāsidah, like his predecessors Chīvīzādah and Abū l-Ṣuʿūd. For, in one of his fatwás, al-Bahāʾī states that the villagers are obligated to pay a ṭapu-yi mithl to the sipāhī for “the fields they cultivate with the knowledge of the tīmār-holder using their own axes”.^[131]

This practice, where the raʿāyā had only the right of disposal over the mawāt lands, was largely preserved in the Land Code of 1858. However, as mentioned above, with this code, it was enacted that the ṭapu-tax would no longer be demanded from the raʿāyā, if the land was cultivated with permission. ^[132] Furthermore, in the Majallah, it was accepted that the sultan, according to his discretion, could allocate either full ownership or only the right of disposal of the mawāt land to those who cultivate it.^[133] Taking into consideration that the legal views of the later period Ḥanafī tradition were given privilege^[134] in the Majallah especially regarding the issues experiencing legal changes within the school such as the cultivation of wastelands, the article in question is important since it points the continuity in the legal discourse.

Conclusion

This study, contrary to Imber’s claim, shows that the 16^th-17^th century Ottoman practice of cultivation of wasteland was compatible with the Ḥanafī interpretation of Islamic law. It also points out to the significant role of jurisconsults, and their legal opinions compiled in the fatāwá and nawāzil literature of the school in the doctrinal growth and change of Islamic law. During this growth and change process, which took place in line with Hallaq’s summarized narrative in the introduction, a practice, where the sultan had the authority to grant only the right of disposal over the wastelands to those who wish to cultivate them, emerged in the first half of the 4^th/10^th century in the Islamic society of Central Asia. Afterwards, one of the prominent Ḥanafī jurists of the time, Abū l-Layth al-Samarqandī, reinterpreted the legal view of Abū Ḥanīfah, which was transmitted in an absolute language in the mainstream legal texts of the school, in order to show that this practice was in conformity with the Islamic law. He argued that in such cases, the authority of the sultan was not limited solely to granting ultimate ownership of the land to the relevant person, but he could also, if deemed appropriate, assign them the exclusive right of disposal over the land. This new interpretation was, in a sense, regarded as correct (taṣḥīḥ) and given preference (tarjīḥ) by later legal authorities in the same region, such as al-Ṣadr al-Shahīd and al-Walwālijī, thus increasingly cited in the fatāwá and sharḥ literature of the school, and it apparently became, at least to some extent, a part of the Ḥanafī legal doctrine towards the mid-16^th century. Shaykh al-islāms such as Chīvīzādah Muḥyī al-Dīn Meḥmed, Abū l-Ṣuʿūd, Khwājah Saʿd al-Dīn, Meḥmed al-Bahāʾī, and Bālīzādah Muṣṭafá, as well as the scholars from the provinces like Pīr Meḥmed al-Uskūbī, referred to the interpretation of al-Samarqandī to provide a legal explanation for the practice, which had a deep-rooted history in the core lands of the Empire during the 16^th and 17^th centuries.

 

DISCLOSURE STATEMENT

No potential conflict of interest was reported by the author.

 

FUNDING

This article has been prepared as one of the outcomes of a TÜBİTAK 1001 project, No. 218K266, directed by Mürteza Bedir.

 

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