KHARAJ AND LAND PROPRIETARY RIGHT IN THE SIXTEENTH CENTURY:
AN EXAMPLE OF LAW AND ECONOMICS
Abdul Azim Islahi[*]
Abstract
Kharaj (land-tax) has been a controversial subject since the formative period of Islamic
jurisprudence. It is said that Muslim jurists have been very conservative while dealing with
the subject of kharaj. But this is wrong perception or opinion. The Controversy have mainly
been revolved around the kharaj-payer's relationship with the land he owned or cultivated.
This nature of relationship was necessary, for in circumstances it alone determined what to
do with the kharaji land. A host of problems surfaced over the centuries and the Muslim
jurists dealt with them differently. The later jurists, specially during the Ottoman period,
face situations which did not exist in early period. So they were compelled to develop their
own thoughts over a number of issues and in so doing they had to differ from their
predecessors. It may, therefore, be argued that the Islamic law on kharaj has never been
rigid and static.
Introduction
Since the early period of the formation of Islamic jurisprudence, controversy existed over the status
of kharaj (land-tax) payers and their relations with the land. With the passage of time this controversy further
deepened.
It is generally held that in the later centuries succeeding ulama strictly followed scholars of the first
four centuries of Islam when the door of ijtihad was not closed. There is also widely accepted paradigm that
‘no thoroughgoing changes occurred in Islamic law after the tenth century’ (Johansen, 1988, p. 1). But Baber
Johansen in his work The Islamic Law on Land Tax and Rent demonstrates with special reference to the
development of Hanafite law in Mamluk1 and Ottoman periods that changes in the legal doctrine were not
restricted to civil transactions’, as generally it is understood, ‘but also concerned the public law.’ (ibid. p. 2)
To him, ‘interrelated key concepts of the Hanafite law such as property, rent, and the taxation of arable lands
underwent thoroughgoing changes in the Mamluk and Ottoman periods’ (ibid).
The word kharaj in its current usage denotes tax collected on proprietorship of land in its various
forms. ‘Kharaj lands were the full property of their owners, and therefore they had right to sell them as they
liked; when the owner of the land died, it was divided between his heirs. If the non-Muslim owner of kharaji
land abandoned his land and fled, then his land was rented out and its kharaj was taken from its produce’
(Orhanlu, 1990, E I, 4:1054)
Kharaj has two main forms: muqasamah and muwazzaf or wazifah. Kharaj muqasamah is defined
as an impost levied in a certain proportion of the produce, such as one-fifth, one-fourth, one-third etc. It was
leviable only when the land was cultivated. Kharaj muwazzaf was fixed on land according to producing
capability of land and was due whether the land was cultivated or not.
As the frontiers of Islamic state expanded from Arabia, the laws of land taxation, land holding and
cultivation, the legal position of non-Muslim citizens of Islamic state and related matters attracted the
attention. The major portions of the heartland of Islam being always a region of agricultural economy, these
issues have always been of special interest. By comparing the legal doctrine of the pre-classical and classical
periods with the legal opinions of the Ottoman jurists Johansen shows what structural changes have occurred
between the tenth and sixteenth centuries (Johansen, 1988, p. 1). In his opinion, ‘Tax and rent are interrelated
key concepts of the Hanafite law that cannot be studied independently of each other. The system of taxation
largely determines the margin that is left for the appropriation of rent. The doctrine on tax and rent largely
determines the conception of landed property. In the Hanafite doctrine on tax and rent, changes of individual
legal ordinances and structural changes in the relationship between the tax and rent occurred in the period
between the tenth and sixteenth centuries. These changes led to a redefinition of the concept of landed
property’ (ibid. p. 3). Johansen argues that ‘in its early classical periods, Hanafite law was a factor that
protected peasant ownership of landed property against the state’s claim to ownership of the peasants’ landed