Kharaj and land proprietary right in the sixteenth century: An example of law and economics



to be subject to kharaj. According to Johansen (1988, p. 89): ‘This reasoning clearly contradicts the classical
Hanafite position on taxation according to which the payment of taxes proves the existence and continuity of
proprietary rights. But both ways of reasoning were accepted by the Hanafite jurists of the Ottoman period
and are quoted in legal compendia of the seventeenth country’. Johansen considers it ‘a legal basis for the
fiscal privileges of the landed property of the rentier’ (ibid).

To Johansen, Ibn Nujaym’s definition of the legal consequences of “the death of the kharaj payer”
makes the ruler the most important seller of arable lands and fiscal privileges, because it entitles him to
sequestrate peasant property, to inherit the lands of those proprietors who die without heirs and to dispose of
lands so acquired at his own discretion. Buying lands from the public treasury apparently was in many cases
a means of acquiring fiscal privileges. Ibn Nujaym says that when the ruler sells arable lands he may either
accord the buyer the fiscal privileges of exemption from taxes, an arrangement legitimized through the
notion of the “death of the
kharaj payer,” or he may treat the lands sold as taxable landed property on the
basis that they were derived through the sequestration of the land of bankrupt peasant proprietors’ (ibid, pp.
89-90).

As for the question how to distinguish these two types of sale, Ibn Nujaym answers: “If the price is
low this indicates that [the sale was effected] because of the proprietor’s inability [to till the soil or pay the
kharaj] and if the price is high, this indicates that [the sale resulted] from the death of the proprietors.
Because in this case, the buyer becomes an exclusive proprietor of the land and he is not a share-cropper or a
peasant. Therefore, he desires to purchase it at a higher price. This is obvious and an established fact. It is
generally known that the
emirs in the past used to be glad and proud if they bought land from the public
treasury. No body reports that the sultan ever asked them to pay
kharaj after the sale or that the religious
scholars demanded the payment of the
kharaj form them or on the lands that were transformed into waqf”
(Ibn Nujaym, 1980, p. 60).

After analysing Ibn Nujaym’s writings on the sixteenth century controversy over the kharaj and
proprietary rights relationship, Johansen (1988, p. 98) remarks: ‘Ibn Nujaym’s writing constitute an
important attempt to take stock of the problems connected with the changes in land tenure, tax and rent in the
middle of the sixteenth century. He knew that he could not solve the problems he faced merely by continuing
the old Hanafite legal tradition in dealing with them. The immense authority which his writings enjoyed in
later centuries not only in Egypt but also in Syria and Palestine shows that his solutions were widely
accepted. He was certainly not always the author of the legal opinions which he integrated into his solutions.
In many aspects his writings reflect the cumulative effects of a process of slow and cautious reformation of
the Hanafite legal tradition that had been going on since the tenth century and that had worked its way from
Central Asia to Egypt and Syria during the Mumluk period.’ The skill with which he tackled the problem is a
proof that ‘Ibn Nujaym was a capable synthesizer who could integrate new notions and ordinances serving
the interest of the rentier class. He shares with other Hanafite jurists of the Ottoman period the practical
insights and economic and social interest that made the workable solution of new problems possible’ (ibid).

In the preceding pages it has been seen that substantial changes took place in Hanafite law regarding
land possession and payment for it. As against the early Hanafite jurists, ‘the productive use of the land was
commodified’ through the contract of tenancy or
ijarah. However, only contract is not enough to make it
liable to pay rent. The contracted person has to given time to use the land. It is the time during which it is
possible to the tenant to use the land that determines the size of the commodity for which the tenant has to
pay rent (Johansen, p. 31). According to Johansen (ibid, p. 32), ‘The calculation of time as an economic
factor which determines the amount of the salary and the rent enters into the political economy of Islamic
law through the contract of
ijarah’. He further says: ‘the concept of rent as developed in the pre-classical and
classical period of Hanafite law clearly works in favour of the emancipation of the peasants and against all
attempts to view them as serf and to regards their rent as a kind of menial due. In addition, the Hanafite
jurists clearly view the contract of tenancy as an instrument for the furthering of social and economic
integration of various states of the rural society. The tenant obtains the right to use the rented property, a right
which is constructed as being a form of a property (ibid, p. 38). This makes the tenant entitled to sublease
and further subleasing - a kind of social and economic integration. Tenants and lessors are thought of as
proprietors and for that reason both of them may become lessors and rentiers (ibid).

The early Hanafite jurists are almost unanimous that the unauthorized use (ghasb) of arable lands
does not engender the obligation to pay rent because a contract is obligatory to pay any rent. However,
unauthorized user of landed property has to make compensation for the diminution of the value of the land



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