the peasants who tilled those lands. In further development, ‘the legal status of rent yielding landed properly
is assimilated to that of state lands in that the rent paid for its use falls due in the way of taxes. With regard to
rent-yielding landed property, the contract is no longer considered to be necessary condition for the
obligation to pay rent’. In other words, ‘the relationship between the rentier and his peasants is no longer
based mainly on contract and consent.’
2. How Egypt Transforms from Kharaj paying Country to Rent paying
During 9th/15th century frequent epidemic caused heavy toll of Egyptian population especially in
rural areas. Due to the death of peasant proprietors with no heirs, their lands fell to the government, that was
generally granted as iqta’ or directly cultivated by farmers who paid rent to the iqta’ holders or to the
government. Historically Egypt has been a kharaj-paying country (ard al-kharaj). But the fifteenth century
existing conditions showed just opposite. At this the famous Hanafite scholar of the period Ibn al-Humam
remarked: “What is collected now-a-days is payment of rent and not kharaj. Can’t you see that the land is
not the property of the cultivators? This is so in spite of what we said about the land of Egypt being kharaji
lands. Allah knows best, it is as if the proprietors died one after another without heirs so that the land fell to
the public treasury (Ibn al-Humam (n.d.), 4:362; Ibn Nujaym 1980, p. 52). In this way Ibn al-Humam
explains and legalizes the tenant status of peasants and the fact that they no longer enjoyed property rights
with regard to their lands in spite of their paying levies to the iqta’ holder or the ruler (Johansen, p. 85).
3. Ibn Nujaym’s Treatise on Land Tenure in Egypt2
In 959/1552 Ibn Nujaym wrote his important treatise on land tenure in Egypt, entitled al-Tuhfah al-
Mardiyah fi’l-Aradi al-Misriyah.3 This was in response to a controversy arose at that time about the legal
validity of Bayt al-mal’s sale of state lands to private persons (Ibn Nujaym, 1980, p. 50; (n.d.), 5:115). ‘It is a
jurist’s defence of the fiscal and legal privileges of the land owning rentier class against the Ottoman attempt
to turn their lands back into state property’ (Johansen 1988, p. 87) Ibn Nujaym answers three questions in
this treatise: Why is it legal that no kharaj is paid as many awqaf and much private landed property that was
bought from the Bayt al-mal? Why is it legitimate to constitute waqf from private landed property that had
formerly belonged to the public domain? And how can the Bayt al-mal’s documents be used as proof for the
claim that lands bought from the Bayt al-mal are tax exempt?
After reiterating that basically Egypt is a kharaj-paying country, Ibn Nujaym discusses the way how
Bayt al-mal will react in case the kharaj payer is unable to cultivate the land and pay the kharaj or absconds.
In this case the sultan (ruler) shall sequestrate the land and act as the proxy of the peasant proprietors. After
that he can get it cultivated on payment of the cost from Bayt al-mal or farm it out or sell it on their behalf.
‘The kharaj owed to the public treasury should then be deducted from the yield of the crop or from the rent
or the price of the land and the surplus should be given to the former owners’. This has been the opinion of
Imam al-Walwaliji (d. after 540/1145) and authors of al-Nihayah, al-Muhit and others (Ibn Nujaym, 1980, p.
53). ‘It is obvious that in the first two cases (that is, cultivated by the Bayt al-mal or farmed out) a vague and
precarious right of ownership is retained by the former kharaj payers. If the ruler sells the land, kharaj is
deducted from the price and handed over to the public treasury. The surplus of the price will be given to the
former owners. The public treasury does not lose its claim to kharaj, because the ruler acts only as a proxy of
the former owners and the land does not change its status through the sale’.
On the other hand when the peasant proprietor dies with no heirs, the land reverts to Bayt al-mal and
‘the ruler is entitled to lease it and have its rent paid to the public treasury. He may also buy it himself, in
which case he must first have it sold to a third person from whom he then buys it’. This is to avoid blame of
taking any undue concession (ibid, p. 54). ‘The ruler is entitled to sell these lands to private proprietors on
the grounds that public interest requires it, that the public treasury is in need of money or simply because he
wants to exercise his absolute or unquestionable rights to sell state lands’ (ibid, p. 51). Land bought by
private proprietors in this way is a privileged property and exempt from taxation’. The reason for this fiscal
privilege is that kharaj is considered a personal obligation. Once the kharaj paying proprietor dies, the
obligation ceases to exist. There is another technical reason. ‘The ruler is entitled to sell either a thing itself
or its use. If he receives a price for the land itself and hands that price over to the public treasury, he is no
longer entitled to require an extra payment for the use of the land’ (ibid, p. 54). Consequently, the land ceases