The Islamic Law on Land Tax and Rent

The Peasants' Loss of Property Rights as Interpreted in the Hanafite Legal Literature of the Mamluk and Ottoman Periods

Baber Johansen

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781315312590
• Edition: 1
• Topic: Theology & Religion
• Subtopic: Religion

This book, first published in 1988, argues that a close inspection of the development of Hanafite law in the Mamluk and Ottoman periods reveals changes in legal doctrine which were not restricted to civil transactions but also concerned the public law. It focuses in particular on the interrelated areas of property, rent and taxation of arable lands, arguing that changes in the relationship between tax and rent led to a redefinition of the concept of landed property, a concept at the very heart of the Islamic legal system. This title will be of particular interest to students of Islamic history.

1
The Birth of the Kharāj Payer

1. What is Kharāj?

The basic legal principle that governs the ` position on taxation is summarised in the following sentence ascribed to Abū Ḥanīfa:

In contrast to all other commodities, the productive lands in our territory are never exempted from taxation. This taxation consists either of kharāj or of ʿushr (al-arāḍi n-nāmiyatu lā takhlū ʿan waẓīfat ⁱⁿ fī dārinā wa-l-waẓīfat" imma l-kharāju awi l-ʿushr).¹

Whereas European feudalism recognised the maxim 'Nulle terre sans seigneur', the Hanafite jurists adhered to the principle 'Nulle terre sans taxe'.² The right of the state to tax all landed property was never questioned by the Hanafite jurists. It is, therefore, not coincidental that the first known Hanafite book of law is Abū Yūsuf's Kitāb al-kharāj, the 'Book on the Landtax'. Hanafite jurists recognised only two legitimate forms of taxes to be levied on landed property: ʿushr and kharāj. It is well known and generally acknowledged that ʿushr is a tax on the landed property of Muslims. What is not well known and certainly not generally acknowledged by scholars is that according to Hanafite law not only ʿushr but also kharāj are taxes payable by the proprietors of landed property. It is difficult to explain why this aspect of kharāj as a tax on private landed property is not generally acknowledged by Western scholars. For nearly 200 years, specialists in the field have tried to draw attention to the fact that kharāj is a tax payable by the private proprietor of landed property. Some 170 years ago, von Hammer was the first to draw attention to this fact.³ He was followed by Belin in the second half of the nineteenth century.⁴ Seventy years ago, Aghnides clearly stated that kharāj proves ownership of property in Hanafite law,⁵ a fact of which Gibb and Bowen reminded us some 20 years ago.⁶ European historians, especially those concerned with the economic and social history of the Near and the Middle East, do not seem to accept this point of view. Even outstanding scholars such as Becker⁷ and, in his earlier works, Claude Cahen⁸ state that the Islamic law defines kharāj as a tax the payment of which implies acknowledging state-held title of ownership to the lands concerned.⁹ This is not the position of the Hanafites, although it is held by other Sunnī schools of Islamic law. Western scholars have often been confused by the divergence of legal opinions on this question, as they tend to underestimate the differences between the Sunnī schools of law. Some scholars, therefore, simply pass over certain information in the Hanafite texts that they study. Some years ago, Paul Forand, in his essay on the Sawād lands of Iraq, drew extensively on the work of an early Hanafite jurist in order to describe the juridical status of the inhabitants of the Sawād lands without indicating that the jurist whom he quotes unequivocally states that the lands of the Sawād are the property of their owners if they pay kharāj on them.¹⁰ Other Western scholars try to reconcile the Orientalist understanding of Islamic law with their Hanafite texts. In a recently published important study on the pre-Islamic traditions relating to agriculture in Iraq and their influence on the Muslim reorganisation of the relations of production in agriculture, Morony points out that the Hanafite jurist Sarakhsī considers kharāj lands as the private property of the tax payers. Morony then adds that with regard to kharāj 'in fact al-Shāfiʿī's interpretation was preferred by the legal scholars thus contributing to the van Berchem thesis ...'¹¹ This holds true for Western scholars. Hanafite jurists continued to prefer the tradition of their own school.

For the argument I shall develop in this essay, it is important to provide an accurate description of the Hanafite legal position on kharāj by presenting statements on this question by authoritative eighth- to nineteenth-century Hanafite scholars. Abū Yūsuf, writing in the eighth century, declares that land assigned through iqāāʿ becomes the private property of the assignee who has to pay kharāj¹² and that kharāj also has to be paid on reclaimed mawāt lands, since, in this case, the cultivator becomes the proprietor. The fact that in this case the cultivator and proprietor has to pay kharāj¹³ shows that private property is subject to kharāj. The rule that in a contract of share-cropping (muzāraʿa) the proprietor is required to pay kharāj¹⁴ would indicate the same. Abū Yūsufs companion, Shaibānī, declared it licit for Muslims to buy kharāj lands from non- Muslim subjects of the Muslim government,¹⁵ even for strictly commercial purposes.¹⁶ These legal opinions of early Hanafite jurists are not whimsical juridical abstractions. In his penetrating analysis of the development of the theory of faiʾ, Schmucker points out that not only were there legal opinions to this effect but these legal traditions reflected the historical practice of private appropriation of kharāj lands in Iraq.¹⁷ According to Schmucker, the Sawād lands of Iraq were left in the hands of the inhabitants of the Sawād who could freely dispose of them. Only crown lands (ṣawāfī) fell under immediate state control.¹⁸ The Hanafite legal position on kharāj supports the ensuing rights of the owners of kharāj lands. In the ninth century, the Hanafite jurist, Khaṣṣāf, writing in Iraq, sanctioned the transformation of kharāj lands into waqf on the grounds that 'the lands of kharāj belong to their proprietors' (li-anna arḍa l-kharāji li-mālikīhā).¹⁹ In another context he states, 'It is kharāj land and is owned by those who hold it' (wa-hiya arḍu kharājⁱⁿ wa-hiya milk^un li-arbābihā).²⁰ In a similar vein, the Egyptian-born jurist Ṭaḥāwi explained at the beginning of the tenth century: 'The kharāj lands are private property. Their sale and donation is permissible, so is their transformation into waqf. The rules of inheritance apply to them as to all other goods' (wa-araḍu l-kharāji mamlūkāt^un yajūzu baiʿ uhunna wahibatuhunna wa-waqfuhunna yajrī fīha l-mawārīthu kamā yajrī fīmā siwāhurtna).²¹ At the beginning of the eleventh century the Iraqi author, Qudūrī, stated: 'The lands of the Sawād are the property of their inhabitants who may sell them and dispose of them [as they wish]' (wa-arḍu s-sawādi mamlūkat^un li-ahlihā: yajūzi baiʿ uhum lahā wa-taṣarrufuhum fīhā).²² The eleventh-century Transoxanian author, Sarakhsī, reported that the companions of the Prophet paid kharāj. He concluded from this that the payment of kharāj cannot be regarded as a humiliation for a Muslim. After explaining the procedure for the levying of kharāj, he says the buyer of kharāj lands will have to pay the kharāj on them.²³ Sarakhsī makes it clear that kharāj has one basic characteristic in common with the rent, i.e. that it is paid as a requital for the fact that it lies within the cultivator's power to put the land to use. 'The kharāj', he says, 'falls due in consideration of [the fact that] it is possible to put [his land] to use'.²⁴ But he also makes it clear that the obligation of paying the kharāj arises only for the owner of landed property: 'The reason for which kharāj falls due is the [existence of] private property of the land that is put to use'.²⁵ The twelfth-century Transoxanian author Marghīnānī declared that the lands of the Sawād of Iraq and those of Syria (Shām) are kharāj lands and that they are the property of their owners.²⁶ He is supported in this legal opinion by the fifteenth-century commentator of his work, the Egyptian jurist, Ibn al-Humām.²⁷ Continuing the same legal tradition the sixteenth-century Egyptian mufti, Ibn Nujaim, states: 'The Hanafite Imams, may God have mercy on them, are unanimously of the opinion that if the Imam conquers a country and recognises its inhabitants' rights [as proprietors] to it and imposes the kharāj on its lands, then the inhabitants enjoy the right of private property with regard to the lands. All forms by which they dispose [of them] such as sale, donation, testamentary bequest, leasing, lending and transformation into waqf are valid, regardless of whether the disposing person remains an unbeliever or becomes a Muslim' (thumma ttafaqa aʾ immatu l-Ḥanafīyati, raḥima llāhu ʿanhum, ʿalā anna l-imāma idhā fataḥa baladat^an wa-aqarra ahlaha ʿalaihā wa-waḍaʿ a l-kharāja ʿalā l-arāḍī fa-innahum yamlikūna l-araḍīya wa-taṣiḥḥu minhum sāʾ iru t-taṣarrufāti min baiʿ ⁱⁿ wa-hibatⁱⁿ wa-waṣīyatⁱⁿ wa-waqfⁱⁿ sawāʾ^an kāna l-mutaṣarrifu bāq...

Table of contents

• Cover
• Half Title
• Title
• Copyright
• Original Title
• Original Copyright
• Contents
• Dedication
• Preface
• Acknowledgements
• Notes on Transcription
• Preliminary Remarks
• 1. The Birth of the Kharāj Payer
• 2. The Contract of Tenancy (Ijāra): The 'Commodification' of the Productive Use of Land
• 3. The Share-cropping Contract (al-Muzāraʿa): Combining Dependent Labour with the Means of Production
• 4. The 'Death of the Proprietors'
• 5. The Ottoman Muftis' New Doctrine on Tax and Rent
• 6. Summary and Conclusion
• Bibliography
• Name Index
• Subject Index