arising from his cultivation of it.
Following his teacher, the twelfth century trasoxanian Hanafite scholar Qadi Khan (d. 592/1196)
classified lands as those which are held by their ownership for the sole purpose of cultivating them through a
share-cropping relationships and other lands that are not held for this purpose’. For the first kind of land
contract is not obligatory if a custom exists regarding the shares of the two parties. This is not applicable to
the other kind of land (Qadi Khan, 1282 AH, 3: 168-69). This differentiation has far reaching consequences
on rentier and tenant relationship. It gives rentier class a privileged position. This was exploited by the jurists
of the following centuries. Especially it was done by propounding the notion of the death of kharaj payer
proprietors without heirs. As we have seen above, Ibn al-Humam gave an explanation how Egypt, a
historically kharaj paying country, turned into a majority of rent paying population. His notion of the “death
of the kharaj payer” was most skilfully and systematically used by the sixteenth century famous Hanafite
scholar Ibn Nujaym. 4
4. Law and Economics
Ibn Nujaym, in spite of being a great scholar, is not an original thinker (mujtahid). Nor would he
like, perhaps, to be associated with ijtihad as he himself declares that the door of analogical reasoning (al-
qiyas), the basic of ijtihad, is closed in his time (Ibn Nujaym, 1980, p. 87). However, he examines the
development on the subject of rent, kharaj and land proprietary rights in the Hanafite tradition of Islamic
jurisprudence and analyses them. Finally he uses them as the building blocks for presenting a case that
protects the rentier class in general and awqaf in particular. Those two institutions were at the risk of
annihilation in the wake of Ottomans’ efforts to increase the area under miri (the government owned) land to
enhance the revenue of government. They already succeeded in this effort.5 Shaw writes: ‘The end result of
the land law of 1553 was to restore to the Treasury some 300 tax producing Muqata’as which had been
alienated for various purpose in the late Mumluk and the early Ottoman times and to increase Treasury
revenues by over 80 per cent during the last years of the century, with the result that it was able to send over
twenty million paras to the Porte each year’ (Shaw, 1962,Vol. 38, Nos. 1-2, p. 116).
In his analysis of various provisions in Hanfite fiqh Ibn Nujaym visualized the economic
repercussion on the rentier class, waqf administrators, tenants, and subtenants. Ibn Nujaym’s effort is an
excellent example of relation between fiqh and economics. It presents a strong case for study of law and
economics and their interplay - more precisely the economic analysis of law. It may be noted that such a
discipline originated in the United States in 1950s and found acceptance amongst the legal community from
the 1970s onward. At present, while Law and Economics is a well-established and distinct discipline in the
West, it is rarely heard in Islamic system. There is need to examine the Islamic heritage of fiqh and principles
of fiqh to investigate the efficiency of those rules in achieving the economic objectives cherished by Islam. A
discipline of fiqh and economics would attempt to perform an integrative treatment of fiqh and economics.
Ibn Nujaym’s analysis of the rules related to kharaj and land proprietary rights shall provide a sample of
such an exercise. 6
5. Risalah darBay'-i Aradi: A Sixteenth Century Treatise from the Mughal India
Shaykh Jalal al-Din Thanesari (d. 991/1582), a noted scholar of Emperor Akbar's time, wrote a tract
entitled Risalah dar Bay'-i Aradi7 (the title is in Persian but the text is in Arabic8 meaning a treatise on sale
of lands)9. This is another example of Law and Economics. In the 16th century, not only in Egypt, but in
India also controversy ranged over the grant of land and the nature of right of grantee over it. The author
takes up 'the issue of land ownership in Mughal India with special reference to the right of holder of revenue
grant' called madad-i-ma'ash (Zafarul-Islam, 1990, p. 87). 'What was granted by the state to the holder of
madad-i-ma'ash was the right to collect and appropriate land revenue. The grant was neither transferable nor
saleable; on the death of the grantee, it normally required the king's sanction before it could pass on to heirs.
Thus according to the official view, the grant was devoid of property rights' (Habib, 1963, pp. 299-304, cited
by Zafarul-Islam, 1990, p. 87). Most of scholars opposed this official view and pleaded for grantees' full
property rights over their holdings. They considered the steps taken by the State to regulate the grants as
interference with their established rights.