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Quotes from the Ancients,
Scriptural and/or Religious We welcome additions of quotes
and viewpoints on land ethics and policies from all religions of the world.
Please send material to Alanna at earthrights dot net Theologian Charles Avila Theologian Charles Avila, Land Reforms & Absentee Landlordism |
|
W |
ith
Mr. Nawaz Sharif once again becoming Prime Minister of the country, the nation,
more or less, has been witnessing the same thing as that of Ms. Benazir Bhutto,
ex-Prime Minister, in the matter of enforcement of Shari‘ah as laid down in the Book of Allah (SWT) and Sunnah of the Holy Prophet (SAW). There
is enough material in evidence to prove the lack of political will to enforce
the supremacy of Qur’an and Sunnah in
Pakistan. In fact, there has been lack of the courage of faith in Allah (SWT)
and His Prophet (SAW) to stand against the dominance of the West in this
respect.
However, despite all the difference of opinion
between me and Mr. Nawaz Sharif in the process of Islamization, which I had
closely witnessed and personally experienced as Chief Justice of the Federal
Shariat Court during 1990-92, I wholeheartedly welcome his move to take over
possession by resumption of 1.25 million acres of land, from illegal occupants,
identified as being the land in excess of the ceilings of land holdings fixed
by the Land Reforms Regulations of 1972 and the Central Act 2 of 1977 and
distribute the same among landless peasants.
Not only that, Mr. Nawaz Sharif, in his address to
the nation on June 11, 1998, also announced, though by a sketchy indication,
for taking over possession of land from those feudal lords, jagirdars and zamindars (of Punjab), waderas
(of Sindh), the sardars (of
Baluchistan), and khawaneen (of NWFP)
who got the land as reward from the British rulers (or as bribe from the past
governments) in consideration of their services rendered by them or their
ancestors, to strengthen the British Raj over the Indian Subcontinent,
bartering the interests of the Muslims and hatch conspiracies against the
Muslim Rule of India.
The first Constituent Assembly of Pakistan — which
was also performing the function of federal legislature and whose first leader
of the House was also the first Prime Minister of Pakistan, Shaheed-e-Millat
Liaqat Ali Khan — passed a Resolution in or about 1950, whereby the provincial
governments of East Pakistan, Punjab, N.W.F.P., Sindh, and Baluchistan were
urged to take steps for abolition of Jagirdari/Zamindari
system from their respective provinces. The Provincial Assembly of East
Pakistan passed a law whereby necessary steps were taken to abolish the Jagirdari/Zamindari system from East
Pakistan. In consequence, the Jagirdar/Zamindar, as a class, was no more an
effective power in the political arena of East Pakistan (now Bangladesh) and
the middle class was able to get entry into politics and wield power. This was
evident from the provincial elections in East Pakistan held in 1954 wherein
Jugtoo Front was able to capture thumping majority in the Assembly, so much so
that even late Noor-ul-Amin, the Chief Minister of East Pakistan, and a senior
Muslim League leader, was defeated by a student.
On the other hand, N.W.F.P., Sindh, and Baluchistan
took no step in the direction of abolition of Zamindari System. Only the Punjab Provincial Tenancy Act of 1887
was amended which proved to be of no consequence so far as the Zamindari system was concerned. It may
be added that the first Chairman of the Pakistan Planning Commission, late
Zahid Hussain — who was also the first Governor of the State Bank of Pakistan —
in his report on the first Five Years Plan had opined that it was necessary to
abolish the Jagirdari/Zamindari
system for strengthening the economic, political, and democratic system in the
country.
In India, by passing of the Abolition of Zamindari Act, 1953, all the Zamindaris and Jagirdaris (including over five hundred states of Jagirdars and Nawabs) were abolished, except that Khud Kasht/Seer, under self cultivation to the extent of about 16
or 17/30 acres, all the lands were resumed by the Government of India. Zamindars were issued Money Bonds in consideration
of the lands resumed, payable in eight equal yearly installments. These Bonds
were made negotiable and transferable in open market. This Abolition of Zamindari Act of India 1953 influenced a
great deal the political climate of the country. Democracy was strengthened and
the country became self-sufficient in food in about a decade.
In Pakistan, “Land Reforms” has been a soaring
subject. No elected Government, so far, could dare to go against the interests
of the Feudal Lords as they formed and still form majority or at least have a
sizeable number in the National Assembly as well as in all the Provincial
Assemblies. The first step was, however, taken by Gen. Mohammad Ayub Khan under
the cover of Martial law by promulgating M.L.R. 64 in 1959 for resumption of
land for distribution among landless peasants, by setting the ceiling of land
at 500 acres for irrigated land and 1000 acres for un-irrigated land. This
ceiling was, in fact, very high; nevertheless, all kinds of leases were
exempted from the operations of M.L.R. 64. According to Shaikh Rashid of
Pakistan People’s Party, the said law reform was merely an eyewash.
In 1972, Z. A. Bhutto — who took reins of power
from Gen. Yahya Khan in December 1971 after the debacle of East Pakistan —
appointed his own-self as President and Chief Martial Law Administrator of
Pakistan with the connivance of Army Generals who felt demoralized for
unprecedented defeat in the entire Muslim history. Bhutto promulgated again
under the cover of Martial Law, Land Reforms Ordinance 1972 (Martial Law
Regulation 115) whereby a land-owner could retain up to 150 acres of irrigated
land and 300 acres of un-irrigated land. Later on by Act 2 of 1977 the ceiling
of irrigated land was reduced to 100 acres, but the laws were not enforced in
their true spirit, perhaps due to political pressure, deceit, maneuverings, and
undue influence of all concerned.
In 1979, Gen. Zia-ul-Haq promulgated an Ordinance
whereby Shariat Benches were constituted in all the four High Courts and the
Supreme Court of Pakistan; 67 Shariat petitions were filed in 1979-80
challenging the M.L.R. 115 and the law reforms Act 2 of 1977 before the said
Benches. After about 15 months, the Federal Shariat Court was constituted on
June 26, 1980. The FSC started hearing of these petitions in right earnest in
August 1980 and after hearing very long arguments of all the parties, a
detailed judgement was pronounced by it on December 13, 1980.
The majority judgement of Federal Shariat Court
(Mr. Justice Karimullah Durrani, contra)
in Muhammad Ameen Vs. Islamic Republic of Pakistan (P.L.D. 1981 F.S.C. 23) held
that the 1973 Constitution takes away power of the Court to declare invalid
laws providing for acquisition of any class of property for certain purposes
and fixing limits as to the ownership of property notwithstanding any
provisions having not been made in such laws for payment of compensation. It
was thus observed that things declared valid by Constitution can not be
declared invalid or bad by Courts, nor can the Court declare any provision of
Constitution as repugnant to Islamic injunctions. Declaration of repugnancy
with Shariah of the provision of law placing ceiling on ownership or reducing
same amounts to declaration of such constitutional provisions as bad which declare
such law either valid or untouchable by the Courts. What cannot be done
directly cannot also be done indirectly. Thus, the ceiling placed on property
validated by Article 253 of the Constitution and Land Reforms Regulation 1972
and Land Reforms Act 1977 were held to be immune from challenge to such extent
in courts including Federal Shariat Court.
The Federal Shariat Court, however, by majority
judgement (Mr. Karimullah Durrani contra)
held that even otherwise on merits the provisions relating to fixing ceiling of
land and taking over the land by governments in excess of such ceiling were not
repugnant to the injunctions of Islam. (For details, see PLD 1981 FSC 23).
In Appeals by the Petitioners in 1981 and few
others the matter was taken up by the Supreme Court Shariat Appellate Bench
which held by its majority judgement, after about nine years, on August 10, 1989, made effective from March 23, 1990.
(Mr. Justice Nasim Hasan Shah, contra)
that “prescription of maximum ceiling of land-owner’s holding was un-Islamic.
It was thus held by the Supreme Court that the Provisions of the Land Reforms
Regulation of 1972 and the Land Reforms Act of 1977 whereby the maximum holding
which a landowner could own and provision for the vesting of all land in excess
of the aforesaid ceiling in the Government were invalid and the restrictions
were repugnant to the injunctions of Islam.
In accordance with the opinion of the majority, it
was held that following provisions of the Regulation, the Act and the Punjab
Tenancy Act 1887 to the extent indicated against each, are repugnant to the
Injunctions of Islam:
1. “Paragraph
2 clause (7) of the Regulation (which defines the term “person”) in so far as
it includes Islamic Wakf for the purposes of other paragraphs of the Regulation
which are being held wholly or partly repugnant in injunctions of Islam.
2. The
whole of Paragraph 7 (declaring void transfers of land or areas in excess of
150 acres held by a land-owner), 8 (fixing a ceiling of 150 acres as the
maximum holding of an individual), 9 (surrender of Shamilat land or share in Shamilat
in excess of maximum holding of 150 acres), 10 (fixing maximum of 100 acres of
civil servants), 13 vesting of excess land in Government) and 14 (resumption of
land obtained in exchange of land allotted in the border area) and
consequentially paragraph 18 (land granted to tenants out of the excess land
vested in Government) of the Regulation.
3. Paragraph
15 (dealing with stud and livestock farms), 16 (dealing with Shikargahs), 19 (dealing with utilization
of land under orchards, studs or live stock farms) and 20 (utilization of land
under resumed Shikargahs) in so far
as they ignore the rights and obligations, the terms and conditions of the
grant, lease, as the case may be, in resuming the stud and livestock farms, Shikargahs and Orchards and dealing
further with them under Paragraphs 19 and 20 thereof.
4. Paragraph
17 of the Regulation (relating to religious charitable and educational
societies) in so far as it relates to Wakf and all other institutions which can
validly fall within the definition of Islamic Wakf, and consequential to that
extent paragraph 21 (which relates to utilization of land resumed from
religious, charitable and educational societies also.” (Qazalbash Waqf’s Case
PLD 1990, S C, 99).
It may, however, be stated that the Supreme Court’s
findings are based on the assumption that the ownership of the landlords on all
fours was legally valid. Legally, the Shariat Appellate Bench could not go into
the factual questions of and mode of the acquisition of ownership, whether
valid or not in the eye of Shari‘ah.
Thus the Government is likely to face difficulties in resuming the land under
the provisions of MLR 115 and Act 2 1977 as announced by the Prime Minister
Nawaz Sharif, in view of the above findings of the Supreme Court, unless
possession has already been taken over by the Government prior to March 23,
1990. Or the Government files a Review Petition against the said judgement in
the Supreme Court and is able to obtain an order in its favor, or make suitable
amendments in the Constitution to overcome the said difficulties. However,
there seems to be no impediment in setting up a high powered National
Commission for Lands with some knowledgeable person to head the same, to make
country-wide inquiries and investigations as to the mode of acquisition of the
lands by the landlords and their predecessors-in-interest, whether valid or not
in the eye of Shari‘ah. The Supreme
Court has also observed about the formation of a Commission in its judgement (see
PLD 1990 S.C., 99, p. 263).
And now to conclude, here is a very important point: The terms of
reference for the above said Commission may include to inquire into the legal
position in the light of Shari‘ah,
about the status of land or creation of Pakistan whether the land was Kharaji or Ushri? In case the Commission gives a finding that on August 14,
1947, the status and nature of the agricultural lands, within the territory of
Pakistan, was Kharaji, the land will
be treated as State-owned, and the problem will stand solved. Only the
necessary amendment in the Constitution will have to be made and new law shall
have to be enacted accordingly.
Absentee Landlordism
A most pertinent question that is being agitated in
Pakistan print media in relation to our agricultural economy is that of
“Absentee Landlordsim,” which has proved itself to be the greatest impediment
to our agricultural progress and development.
This has given birth to another question whether
agricultural land can be leased out against specified rent or against a fixed
part of the produce of land, or against a fixed sum of money. This question, in
fact, dates back to the early formative period of Islam. There are found two
divergent views as emerged out of interpretation of ahdith on the subject known as muzara‘ah,
(lease of bare land for a certain part of its produce) which has been discussed
in detail in almost every compilation of ahadith
and every authentic book on fiqh, in
separate chapters to denote its importance.
According to the first point of view, muzara‘ah is invalid in Islamic Law.
Imam Abu Hanifah, Imam Auza‘i, and Imam Ibn Hazam hold this view. They maintain
that if the landlord gives to the tenant bare land for one-third or one-fourth
of the produce, it is a case of hazard, chance, or risk, as the crop sometime
is abundant and sometime it fails.
This point of view, which invalidates any lease of
agricultural land under the Islamic law, is reported to be based on various marfu‘ ahadith — traditions whose chain of transmission is directly
linked to the Prophet (SAW). Following are the main traditions in this respect,
as quoted in Landlord and Peasant in
Early Islam by Dr. Ziaul Haque (Islamabad, 1977):
1. Jabir
(RAA) says that the Prophet (SAW) said: One who owns land must cultivate it himself,
or bestow it free, i.e., lend it to another person to let him cultivate it. If
he does not do this, he must retain his land. (Sahih Muslim, Kitab Al-Buyu‘)
2. Jabir
(RAA) says that the Prophet (SAW) prohibited lease of land against any rent or
part of land’s produce. (Ibid.)
3. Abu
Al-Najashi, mawla (client)of Rafi‘ bin Khadij (RAA) reports that Rafi‘ bin
Khadij says that Zuhayr bin Rafi‘, his uncle, said that the Prophet (SAW) had
forbidden them from a matter which was very beneficial for them. Rafi‘ asked
him about this matter, saying that whatever the Prophet (SAW) had said must be
right. Zuhayr said that the Prophet (SAW) had asked him as to what they were
doing with their agricultural lands. He told the Prophet (SAW) that they were
leasing them against whatever grew on the rivulet or the streamlet; or against
camel loads of dates or barley. The Prophet (SAW) thereupon forbade them saying
that they should cultivate their lands themselves, or they should let some
other people cultivate them (free of charge), or they must simply withhold the
lands. (Ibid.)
4. Nafi‘
(RAA) stated that Abdullah bin Umar (RAA) used to lease his land. Ibn Umar went
to see Rafi‘ (RAA) to ask him about the problem of land lease, and he (Nafi‘)
also accompanied him. When Ibn Umar asked him about the problem, Rafi‘ replied
that the Prophet (SAW) had banned it. (Ibid., another variant in Sahih Bukhari)
5. Abu
Hurayra (RAA) said that the Prophet (SAW) declared: One who owns land must till
it himself or give it free to his brother, or otherwise he must withhold it.
(Sahih Muslim, Kitab Al-Buyu‘ and Sahih Bukhari, Kitab Al-Ijarah)
6. Abu
Sa‘eed Al-Khudri said that the Prophet (SAW) had banned muzabana and muhaqala. He
explained that muhaqala was lease of
land. (Sahih Muslim, Kitab Al-Buyu‘)
7. Abdullah
bin Umar (RAA) said that the Prophet (SAW) prohibited lease of land. (Ibid.)
Ibn Hazam says that all these
Companions (RAA) transmit the categorical ban on lease of land. This is
tantamount to tawatur, the
transmission of ahadith on the
authority of numerous Companions (RAA) about whose reliability a presumption is
attached that they all cannot tell lie. For detailed discussion, see Nizam-i-Zamindari aur Islam by Maulana
Muhammad Tasin (Majlis-e-Ilmi, Karachi)
On the other hand, a majority of
jurists hold a different view. According to them, muzara‘ah is legal and permissible against a certain part of its
produce, cash or kind. The jurists rely upon the following ahadith in support of justification for the practice of muzara‘ah. They have been recorded in
Sahih Bukhari and Sahih Muslim and other standard compilations of ahadith.
1. Nafi‘
bin Umar (RAA) says that the Prophet (SAW) made an economic transaction with
the farmers of Khaybar with the stipulation that they would pay half of the
produce of grain and fruit. (Sahih Bukhari, Kitab Al-Muzari‘ah)
2. Abdullah
bin Umar (RAA) says that the Prophet (SAW) gave Khaybar to the Jews on the
condition that they would cultivate it and work on it, and would get half of
the produce. (Ibid.)
3. Nafi‘
bin Umar (RAA) says that the Prophet (RAA) gave to the Jews of Khaybar the
date-palms and land of Khaybar, that would cultivate it with their own capital
and would pay to the Prophet half of the produce. (Sahih Muslim, Kitab
All-Buyu‘)
4. Nafi‘
bin Umar (RAA) says that when the Prophet (SAW) had conquered Khaybar, he
wanted to expel the Jews from the land. They asked him to let them stay on the
land on the condition that they would cultivate it and would retain half of the
produce for themselves. The Prophet (SAW) approved of this and said, “we shall,
as long as we wish, let you stay on the land.” They were thus allowed to stay
until the time of Umar bin Khattab (RAA) who exiled them. (Sahih Bukhari, Kitab
Al-Muzari‘ah)
5. Ibn
Abbas says that the Prophet (SAW) gave the lands and date-palms of Khaybar for
half of the produce. (Sunnan Ibn Majah, Kitab Al-Ruhun and Ibn Hanbal, IV, no.
2255)
Imam Abu Yusuf gives five forms
of muzara‘ah-tenure in his famous book Kitab
Al-Kharaj which, according to him, are valid in Shari‘ah.
1. Free-tenure,
in which landlord gives his land free to his brother without charging him any
rent; the cultivator uses his own seed, animals and instruments; the entire
crop belongs to him. If this is a kharaji
land, the landowner will pay the Kharaj,
if an ushri land, the tiller will pay
the ushr. This was also stated to be
the opinion of Abu Hanifa.
2. Partnership-tenure,
in which the landlord and the cultivator cooperate and share the expenses and
seed and till the land together; they share the produce equally. If this is an ushri land, ushr will be paid from the produce, if kharaji land, kharaj will
be borne by the landowner.
3. Lease of
bare land for money, in which bare land is leased for a fixed sum of money for
one year or two, and which is currently known in Pakistan as muqala‘ah. This is valid in law. The
landlord will pay the kharaj, if this
is a kharaji land. If it is an ushri land, landowner will pay the
‘ushr. This is also the opinion of Abu Hanifa. According to Imam Abu Hanifa if
it is a kharaji land, ushr is paid by the person who owns the
crop, viz., the tenant in this case.
4. Muzara‘ah-tenancy, in which land is given
for one third or one fourth of its produce. Abu Hanifa does not allow it, for
it is a fasid or irregular tenancy;
in his opinion, if any laborer is employed for such a tenancy he must be given
a definite wage equivalent to his labor (and not an indeterminate share in the
crop); thus the kharaj (or the ushr) is paid by the landlord. Abu Yusuf
disagrees with him; he says that this type of muzara‘ah is valid if all the conditions relating to it are
fulfilled. Kharaj will be paid by the
landlord if it is a kharaji land. In
case of its being an ushri land, ushr is paid by both of them.
5. Labor-tenancy,
in which the landlord who owns also animals and seed calls upon a laborer or
tiller to till the land for one sixth or one seventh share of the crop. For Abu
Hanifa, again, this type of hiring labor for indeterminate wages is improper (fasid) because the crop belongs to the
landlord and the laborer must be paid his wages commensurate with his labor.
Abu Yusuf insists that this is all valid because their stipulations are based
on traditions (aathar) of the
Companions (RAA).
Now, we have seen as stated
above, the two divergent views of the jurists, based on two versions of ahadith, on the question of muzara’ah. In Pakistan, the second view
prevails in actual practice. I have suggested above the formation of a National
Commission for Lands to determine the nature of agricultural land in Pakistan
as on August 14, 1947, in the eye of Shari‘ah
whether it is kharaji or ushri. It may now be added that in case
the said Commission concludes that the lands in Pakistan are ushri, as held by Mufti Muhammad Shafi
in his took Islam Ka Nizam-e-Arazi,
it may address to itself the question of muzara‘ah
in the eye of Shari‘ah. The question
may, however, be determined after recording the statements of various Ulama (having juristic acumen) of
Pakistan and India and, if needed, from other Muslim countries.
However, let it be noted that
the problem can be resolved only if a critical analysis of the traditions is
made taking full account of the history of the doctrine. Only that set of
hypotheses is possible which can be verified with adequate evidence. The
proposed Commission’s main task will be to investigate and give all the
available evidence both in points of isnad
and of history to find out which of these versions has greater antecedent
probability than the other, not in sense that a certain hypothesis stands
confirmed, if particulars are found, but rather in the sense of making positive
a priori
judgment which can adequately provide explanation more than the other
possible alternative assumptions. (Landlord
and Peasant in Early Islam, by Dr. Ziaul Haque, Islamabad, 1977). If it is
deemed necessary, resort may be had to collective
ijtihad, by the pious jurists (Al-Fuqaha
Al-Abideen) as narrated by Ali (RAA). In case the Commission comes to the
conclusion that muzara‘ah tenancy is
valid in Islam, preferring the second version of ahadith, it may make necessary recommendations for eradicating the
vices that have crept in the system, after examining the existing laws on the
subject in the light of the injunctions of Islam as laid down in the Holy
Qur’an and Sunnah of the Prophet
(SAW). In the present economic scenario, it is imperative that overall and
multi-dimensional reforms are made in the agricultural sector.
There is, however, a very big
question here: Will the present Government, or for that matter any future
Government dominated by the Feudal Lords, undertake this Hallunstic task? The
answer perhaps obvious.
SATO REV.DOC 1/2/2007 8:40:08 AM
483 JOURNAL OF LAW & RELIGION [Vol. XV
THE
ISLAMIC LAW ON LAND TAX AND RENT: THE PEASANTS’ LOSS OF PROPERTY
RIGHTS AS INTERPRETED IN THE HANAFITE LITERATURE OF THE MAMLUK
AND OTTOMAN PERIOD.
By Baber Johansen. London and New York:
Croom Helm, Methuen 1988. Pp. 143.
ISBN: 0-709-91496-2.
This book is a challenging work arguing
that Islamic law stopped developing after the tenth century. Joseph
Schacht, Noel J. Coulson, and Chafik Chehata, who have contributed
greatly to advancing the study of Islamic law,1 are unanimous in supporting this view. The author plans to “demonstrate, with special
reference to the development of Hanafite law in the Mamluk and Ottoman
periods, . . . the structural changes that occurred between the tenth
and sixteenth centuries.” (2)2 He focuses on “land tax and rent” as
inter-related key concepts of the Hanfite law, by noting that the Middle
East is a cereal-growing agricultural region.
The author divides the history of Islamic
law into three periods: pre-classical (eighth to tenth century),
classical (tenth to twelfth century) and post-classical (twelfth to nineteenth
century). His intention is to compare the Hanafite doctrine on the forms
of land tax and tenancy contracts through these periods.
Chapter One, “The Birth of the Kharaj Payer,”
shows the basic legal principle that governs the Hanafite
position on taxation. According to the Hanafite jurists, the
land tax (kharaj) was a tax payable by the proprietors of landed property.
Johansen relates that “this aspect of kharaj as a tax on private
landed property is not generally acknowledged by Western scholars.” (7) The
Hanafite doctrine, different from other Sunni schools, does
not define kharaj as a tax, the payment of which implies acknowledging
state-held title of ownership to land. If so, then who paid the tax, the
tenant or the lessor? According to Abu Hanifa (ca. 699-767), the founder
of the Hanafite school, it was always the proprietor who paid the kharaj.
However, his disciples of the eighth and ninth centuries tried to shift
the tax burden from the lessor to the tenant. How was this shift possible if
we consider that this legal doctrine was part of Islamic law?
Chapter Two, “The Contract of Tenancy,”
answers this question.
Through the tenancy contract (ijara), arable
land was transformed into rent-yielding property because tenants
could reap profits from the usufruct of the land, like dealing in
commodities. However, the Hanafite jurists in Balkh and Bukhara
during the classical period were faced with “the problem of whether it is
the owner of Arabic arable lands or the person who makes unauthorised
use (ghash) of them who has to pay the land tax.” (40) The attempt
by jurists to assimilate the tenancy relationship to ghash marked
the beginning of a new legal doctrine concerning land tax and rent. The
author explains that the new tenancy relationship was described in
terms of the unequal and hierarchical relationships between the
tenant and lessor that characterized the share-cropping contract (muzara
’a).
Chapter Three, “The Share-cropping
Contract,” deals with this
muzara’a contract that legally gave proprietors the
right to collect rent from the cultivators of their fields. The
author supposes that the contract was first used on state, iqta’ (lands
assigned by caliph) and waqf
(foundation) lands, and then later applied
to other forms of landed property. His point is that the status of
peasants who provided only labor or land in the muzara’a was
much worse than the status of tenants working under a tenancy contract (ijara).
Consequently, “[i]n the Mamluk and Ottoman periods the peasant
ceases to be regarded as a
kharaj payer and an owner of landed property.” (69)
Chapter Four, “The Death of the
Proprietors,” discusses the Hanafite response to a new movement in
Islamic history. From the second half of the tenth century, rural
society in the Middle East underwent fundamental changes under the iqta’
system, which was first implemented in Buwayid Iraq.3 Army officers were assigned iqta’s, from which they collected revenues in
return for their military services. The author emphasizes that “this practice
. . . tended to obscure the difference between tax and rent.” (80) In
other words, the peasant ownership of small holdings gradually
disappeared under the iqta’
system. Faced with this new situation, the
Hanafite jurists during the late Mamluk and the early Ottoman periods
set out to reform their classical doctrine which stated that the obligation
to pay rent can only result from use of land under a contract.
They tried to legalize the relationship between landlord and peasant
in iqta’ and waqf. That is to say, they reinterpreted the legal doctrine
held during the classical period by Hanafite jurists in Central Asia who
assimilated tenancy relationships to the unauthorized use of arable lands.
This new legal doctrine was based on the
notion of the “death of the kharaj payer” proposed by a
fifteenth-century Egyptian mufti (a jurist who gives authoritative legal
opinions). The situation was as if the proprietors who were obliged to pay kharaj
died one after another, without leaving heirs. According to the
author, this notion served to explain and legalize the tenant status of
peasants who no longer enjoyed property rights under the iqta’ system.
(85) As Chapter Five, “The Ottoman Muftis’ New Doctrine on Tax and
Rent,” shows clearly, the Hanafite muftis during the Ottoman
period developed a new doctrine on tax and rent, based on the writing of
jurists of the late Mamluk period. Contrary to the view that Islamic law
remained unchanged after the tenth century, the Hanafite jurists and muftis
strove to reform their legal doctrine until the nineteenth century.
The author succeeds in proving that Islamic
law developed even after the tenth century via an elaborate
examination of the texts, resulting in the discovery in changes in
the Hanafite legal doctrines. Some readers may find it difficult to
follow the process of the author’s detailed arguments, while others may
wonder why no jurist tried to reform the legal doctrine on tax and rent
during the early Mamluk period, when the iqta’ system was
at its height. Furthermore, Egyptian peasants under the Mamluks, called fallahun
or muzari ’un, were, after irrigation by the annual flood of the
Nile, customarily allocated land to be cultivated not according to muzari
’un contracts but rather under
qabala contracts with their iqta’ holders.4 This shows that contracts between iqta’ holders and
cultivators did not lose their significance even in the Mamluk period, a point that
diverges from Johansen’s conclusions.
The Islamic Law on Land Tax and Rent is an important monograph that shows clearly the developmental
process of the Hanafite legal doctrine from the tenth century on.
Johansen enables his readers to see that Islamic law has evolved through the
adaptation of its doctrine to social changes throughout its history. His
work provides us with the joy of touching an author’s spirit as he
challenges established theory.
JOURNAL OF LAW & RELIGION [Vol. XV
Reviewed by Tsugitaka Sato †
† The University of Tokyo, Graduate School
of Humanities, Tokyo, Japan.
(satotg at yk dot rim dot or dot jp)
1. Joseph Schacht, An Introduction to
Islamic Law (Oxford: Oxford U. Press 1964); Noel J.
Coulson, A History of Islamic Law (Edinburgh:
Edinburgh U. Press 1964); Chafik Chehata,
Etudes de droit muselman (Paris: Presses universitaires de France
1971).
2. All citations in the text refer to the
book under review.
SATO REV.DOC 1/2/2007
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3. Concerning the iqta’ system in
the Middle East, see Sato Tsugitaka, State and Rural
Society in Medieval Islam (Leiden: Brill 1997).
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4. Id. at 192-197, 236.
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