Classification of Lands in the Islamic Law and Its Technical Terms

Abstract

With the conquest of Islamic lands by European powers arose the question whether those persons who had been entitled to levy the land rents from the peasants on the eve of the conquest are now to be regarded as proprietors of the respective estates, or as having only temporary right of lease, which may be revoked by the government (especially in the case of the so-called Khardj lands). This administrative question, which was for the most part answered in practice to the benefit of the landholders,' made the juridic classification of lands in the Islamic world the favorite topic of those orientalists who took interest in the agrarian problems. Though in reality the agrarian relations in Islamic lands were not always founded on the Islamic law,2 this law became the main object of investigation. The principal theories were those of (a) Hammer-Purgstall,3 according to whom there were three main classes of lands: (1) cUshri lands, which were distributed at the time of the Moslem conquest among the conquerors as their property (mulk); (2) Khardji lands, left to their non-Moslem owners as their property, with no other distinction from the former than heavier taxation; and (3) the state domains, denoted in Turkey as ard-i-mamlakat, which were employed as military fiefs. This classification, based by Hammer-Purgstall on the authority of Ottoman writers, the Mufti Abfi Sucfld (the counselor of Sulaymdn the Magnificent) and Muhammad-Chalabi, was accepted by W. Padel,4 but a more 1 So in British India by the Permanent Settlement of 1793; in French Egypt by decree (arrdtt) of 30 Fructidor, Year VI (1798); in Algeria (this action of the French administration was severely criticized by Dr. Worms in Journal asiatique, XIV (3d ser.; 1842), 22526); in Russian Turkestan by Rules of 1886. 2 See my article on the feudal system of the Mamlfiks in Journal of the Royal Asiatic Society, I (1937), 97-107. Only Waqfs and allodial lands (amlak) were administered in the Mamlfik state more or less according to the Islamic law, and therefore the documents relating to them were designated as makatib sharciyya (Ibn Iy~s, V, 189, 11. 16-20; p. 219, 1. 12; Ibn al-Ji~in, p. 38, 1. 3). 3 Geschichte des osmanischen Reiches (2d ed.; 1834), II, 341. More fully in his Des osmanischen Reichs Staat8verfassung und Staat8verwaltung. 4 Das Grundeigentum in der Tirkei nach der neuern Gesetzgebung (Jahrbuch der intern. Vereinig. fiir vergl. Rechtsw. und Volkswirtschaftslehre, Vols. VI-VII, Abt. I [1903]). Cf. W. Padel and L. Steeg, De la legislation fonciare ottomane (Paris, 1904). The opinion that Kharaji lands are the property of their holders was expressed also by Belin in Journal asiatique, 1861, pp. 414 ff. 50