text:
The grammars of adjudication|
Chapter 9: Judicial policy making and the politics of the regional councils
Texte intégral
- 1 Currently located in northeast Lebanon.
1In one of its routine sessions, on Tuesday, December 18, 1844, the newly established majlis of Damascus was pondering over the case of the Emirs Ḥarfūshs, a notable Shī'ī family from the region of Ba'albak1 who were responsible of the iltizām in that same area [C 9-1]. The Emirs, as it turned out, had not paid their mīrī dues for the last two years. That in itself should not have created that much of a problem with the local authorities because many of the majlis' sessions, since the beginning of that year, were devoted to issues related to the iltizām and mīrī collection. Basically, the peasants of a locality would petition the majlis concerning the heavy load of mīrī they had to pay (a petition often drafted in Turkish and first addressed to the defterdār, the official whose authority was next to the governor), in cash and/or in kind, to their local multazim (who could have been working in association with a more powerful urban multazim, often a member of the majlis itself); they would then explain, say, how the heavy rain that winter destroyed their crops, or how their multazim was abusing them by requesting too much; they might even urge the majlis to reconsider the payment plan imposed upon them in terms of more carefully spaced installments. To be sure, those were only but a few of the requests that typically came in petitions, collectively signed by the ahālī,to the majlis; and the majlis was pretty flexible when it came to such matters as curbing the authority of an abusive multazim, lowering the mīrī dues to a certain extent for the year in question, or increasing the yearly installments.
2The Ḥarfūshs, however, not only were very late in submitting their dues, but, more important in the eyes of the majlis, they neither petitioned the members of the majlis for anything (in writing, of course)—nor have they attempted to explain to the latter their situation, nor have they proposed procedures for a better levying of the mīrī. Needless to say, the majlis saw such attitude as one of pure contempt and provocation, and, already in its session that day, it manifested signs of impatience and irritation. To begin with, the Ḥarfūshs were accused of illegally imposing dues upon their own people, and keeping them for themselves instead of submitting them to the treasury; thus, even though they were the officially appointed multazims (or at least some of them were), the majlis accused them of oppressing their own peasants; and then, surprisingly, in what seems like a gesture of desperation, the majlis identified the status of the Ḥarfūshs with that of the Shī'īs in general by qualifying them as "the confession of refusal [al-milla ar-rāfiḍa]." Even though such a qualification was common to the Shī'īs throughout the Ottoman period, its inclusion within the drafted minutes of the majlis was an event all by itself. Right at the beginning of the reforms period, an era that began with a public declaration in favor of an equal status for "minorities," a confessional group was, in a derogatory tone, accused as a totality for misappropriating and mismanaging the resources of the state.
- 2 Sharaf ad-Dīn Mūsa b. Yūsuf al-Anṣārī, Nuzhat al-khāṭir wa-bahjat al-nāẓir, 2 vols. (Damascus: Wizā (...)
- 3 Anṣārī, Nuzhat, editor's introduction, 1:18-19.
3To be sure, the problems specific to the Ḥarfūshs—not to mention other Muslim or non-Muslim "minority" groups—were as old as the Ottoman conquest to Bilād al-Shām. On September 28, 1590, the Damascus wālī arrested 'Alī Ḥarfūsh, the Emir of Ba'albak, and kept him imprisoned in the citadel until November 10, 1590, when he was executed, thus fulfilling a sultanic firman to proceed with the execution. In fact, Ḥarfūsh's death was so crucial to the sultan and his entourage that his head was sent to Istanbul and buried over there.2 Even though the motives behind the execution remain uncertain, it is nevertheless assumed that the Ottomans were in the process of testing their balance-of-power policy, thus establishing in the Biqā' valley, as a counter-balance to the Ḥarfūshs, the chieftaincy of Manṣūr b. Furaykh, who was also the Emir of the annual pilgrims' caravan. But apparently that was not a strong enough a measure, and the head of the Ḥarfūshes lost his head—literally—to create a more stable equilibrium in the region.3
4The first freshly designed Tanẓīmāt majlis of Damascus assumed its functions right after the Egyptian withdrawal in 1840. Due to the scarcity of the documentation regarding such institutions, it is not clear 1) how the majlis of the Tanẓīmāt differed, if at all, from the dīwān of the previous periods headed by the wālī; 2) whether those majālis differed in any way from those instituted by the Egyptians in their eight-year domination of Bilād al-Shām; and 3) on what basis were the twelve members of the majlis selected, how long they served, and what were their exact functions; finally, 4) in what way did the role and function of this particular majlis, known as majlis shūra al-Shām al-'ālī,differ from subsequent majālis created at later periods, in particular when the legal system was subjected to intense reforms with the promulgation of new quasi-western codes.
5What is of interest to us, however, is the judicial function of the majlis. In fact, the first majālis of the Tanẓīmāt, headed by a select group of a'yān, enjoyed broad powers to handle legal cases and adjudicate. In other words, the notables acted as legal honoratiores. Later majālis, of the second Tanẓīmāt era, albeit more specialized, had similar powers to adjudicate. Again, the status of current research does not allow for any comparison between the adjudication of the Tanẓīmāt majālis and any other form of adjudication that might have existed within institutions outside the sharī'a courts. The main set of questions, therefore, that need to be addressed at this juncture are the following: How is it that a body of non-professionals—mainly selected on the basis of their social standing—were granted so broad a range of legal powers? In other words, and considering that adjudication was mostly limited to within the walls of the sharī'a courts, why was an extra source of adjudication needed? Why couldn't the sharī'a courts handle cases that became part of the majlis jurisdiction? What was behind such a division of power between various jurisdictions?
- 4 See Chapter 10 infra.
6The point in this chapter is to argue that, by acting as legal honoratiores, the notables that headed the various regional councils of the first reform era framed their adjudicative decisions within a political framework that was a combination of policies sustained by the imperial bureaucracy, on the one hand, and dictated by their own regional interests, on the other. It was thus this combination of central and regional interests that led to what I will refer to as the judicial-policy making of the regional councils, a function which with the second reforms will be routinized so that adjudication will appear more court-like, in particular with the institutionalization of the niẓāmī courts in the 1870s. In effect, the main difference between all the procedures of the sharī'a courts, which we have examined thus far, and the minutes of the regional council of Damascus, to be discussed in this Chapter, is that the courts were well entrenched into their communities so that their procedures were well routinized and predictable in such a way that it would be meaningless to speak of any policy-making process, but only of a judicial decision-making. The distinction is important as it is at the core of all the adjudication that took place around state-owned mīrī lands, whose jurisdiction was limited to the regional councils. For that very reason, and the fact that Ḥanafī practice remained a "community law" and was endorsed by the state as such, the shurūḥ manuals that we have examined in Chapter 4 kept an archaic language regarding Ottoman land tenure and did not venture much into the logic of the iltizām-mīrī system. Thus, with the "silence" that the Ḥanafīs kept regarding that system, on the one hand, and the fragmented sultanic ordinances, on the other,4 the regional councils created a politically active adjudication, and, to be sure, one that was much more aggressive than that of the sharī'a courts.
7In fact, compared to the sharī'a courts, the majlis cases were overall less routinized, "harder," and hence more unpredictable both in terms of the subject matter and outcome. For one thing, they certainly did not fit within the ready-made formulas that characterized the sharī'a courts; and their outcomes—the final rulings—had always an element of unpredictability. What was also striking about the majlis cases was how little they relied upon any form of legal opinion or codes, be it jurists' manuals, qānūnnāme, or any other source of law. Only in a couple of occasions was a penal qānūnnāme mentioned, but with no other specification, for example, as to the year of promulgation, the locality, or any other detail that might have helped in the process of identification. The majlis cases thus appear freed from the heavy burden of the historicity of the opinions produced by the Ḥanafī fiqh. So what was the legal basis for the a'yān's rulings?
8The question becomes even more pressing as soon as the nature of cases is examined. Some of them turn out not much different from the ones of the sharī'a courts, and a careful analysis is needed to determine why they ended up within the majlis' jurisdiction. More specifically, on land issues, the sharī'a courts kept within their jurisdiction all property sales and tenancy contracts, the division of revenues among the beneficiaries of a waqf, and the like, while they managed in creating legal devices for transferring properties and even changing their status. The majlis was left with the more "public" issues, in particular problems relating to the payment of the māl mīrī to the treasury. Indeed, the great majority of all cases dealt with iltizām issues and problems related to the collection of the mīrī that the more traditional sharī'a courts could not possibly have handled on their own: but why exactly? Why were the sharī'a courts—those courts that precisely handled all kinds of cases from marriage and divorce, to crime and land—in need of being supplemented by another source of adjudication?
9But despite the rarity of research regarding regional councils in general, a fundamental truth can be ascertained: their primary function was indeed more legal than political; moreover, to perceive them only in a political function of some sort, say, because of the a'yān presence on their boards, is erroneous and leads to gross mistakes in the reading of their texts. In fact, it was the existence of a parallel body of legislation to Ḥanafī practice that primarily led to the creation of the regional dīwāns and councils. Considering that it was difficult, if not impossible, to integrate two different sources of legislation into a single adjudicative body—namely, into the space of the sharī'a courts—the other alternative was to create a parallel adjudicative body specifically designed for that kind of legislation. Two possibilities were thus open: 1) either give birth to a body of specialists in sultanic legislation; or 2) hand over the function of adjudication to the various a'yān of the cities. The first possibility would have created a body of specialists without much legitimacy, while the second alternative was more realistic. To be sure, the Ottoman central bureaucracy, in giving so much power to the urban a'yān, was aware of the risks behind such a delicate operation, and the misuses of power that it could engender. Needless to say, some of the Damascus a'yān abused their powers, and saw the majlis experience as a way to intimidate their political opponents—the Ḥarfūsh case definitely extends beyond the purely "legal" into abusive political relationships. However, many of the majālis cases consisted of purely routine tasks and usually met the normal legal expectations, while others could be classified as "hard" cases that were in need of an elaborate scheme of adjudication on a case-by-case basis; and it was mainly within this last category that the borderline between the political and legal as such began to blur.
10While juxtaposing the various textual "legal" levels—Ḥanafī practice, sharī'a courts, sultanic legislation, and the regional councils—and associating them with one another, a reality emerged: even though all those discursive practices were intended to contribute to the "legal" sphere—defined broadly as a level that produces itself by means of (or contributes to) an adjudicative process—they were nevertheless characterized by their incongruence. In other words, the whole system fell short into constructing a more abstract set of codes and norms that would have brought a sense of coherence into the heterogeneous textualities we come across: the Ḥanafī manuals, for example, avoided any reference to the complexities of the Ottoman land tenure system as such, and clustered instead on the obsolete medieval notions of the 'ushrand kharāj.That left the sharī'a courts with either gaps or half-answers to pressing land litigations, and were therefore limited, mutatis mutandis, to their own legal devices to solve such litigations; that in itself, however, proved at times inefficient since the majlis had in turn to pick up on cases that the courts could not handle, basically because no clear legal texts were drafted for that purpose. In the meantime, and in order to fill the gaps and silences that Ḥanafism inevitably left behind, sultanic legislation had to impose its own set of laws, firmans and orders. Finally, some of the most common customary practices had to be accepted on an ad hoc basis and integrated as such within the broader framework of canon law. Because discourses are always embedded into power-relations which they express in one way or another, the textual incongruence was an indication of the various social and political powers that were left autonomous on their own without ever subjecting them to the monopolizing power of the state. Thus, jurists kept a similar tradition to the one their ancestors were already accustomed to in the previous Islamic empires: that of a ferociously critical position, albeit in a veiled language, that established itself as a result of the poor control of the state apparatus over its territories. As to the administration of notables of the main cities, it never established anything near a "policy," a community, or a public sphere: what mattered most were alliances between individuals and groups located within networks; and those in turn led to the autonomous sources of jurisdiction of the a'yānand their majālis.
- 5 In many ways, like the prise de la Bastille: an unnecessary event, considering that the Bastille wa (...)
11It was therefore ironic that those who controlled the iltizām networks should be adjudicating over iltizām and mīrī petitions and litigations. Thus, the set of documents related to the Ḥarfūshes should be read in terms of the power relations within the political and economic networks of the notables, since then dominated by the majlis. In fact, the Damascus notables followed their own rules when it came to city itself. Thus, the majlis of 1844-45 (the one that handled the Ḥarfūsh case) had managed to evict from its own ranks the two notables representing the Jews and Christians of the city so that by 1844 the majlis was composed of twelve Sunnī members only. Between 1840 and 1860, the economic status of both the Jewish and Christians communities had already considerably weakened (the Christians seem to have had their best time during the reign of Muḥammad 'Alī of Egypt): the activities of the majlis, and the way it imposed taxes (such as the i'āne) with unfair and higher proportions on minority groups, in addition to its members monopolizing the iltizām auctions, were among the factors that precipitated the decline of the economic activities of both Christians and Jews that were prosperous only a couple of decades earlier. Thus, by the time of the 1860 massacres, which, in Damascus alone ended with a heavy toll of close to 5,000 Christians, the business of many Christian families and individuals had already weakened significantly relative to earlier pre-Tanẓīmāt periods; and what the massacres added was a massive destruction of accumulated wealth and symbols of prestige (such as homes, churches, and manufactures). In other words, one should not look at the causes of the 1860 massacres in terms of a desire to weaken the Christians—since those had already seen their commerce tremendously weakened—but more as a symbolic victory of the Sunnī notables (in Mount Lebanon it was a different story altogether).5
12The Ḥarfūshes could have therefore represented an altogether different path from what the majlis had been accustomed to. First, even though the Ḥarfūshs were under the jurisdiction of the Damascus majlis, they were located in Ba'albak, a region far enough from Damascus and with a different structure of power-relations; second, the Ḥarfūshes were more like an extension to the nobility of Mount Lebanon with its strong confessional divisions between Druze and Maronites, and occupied a peripheral space where the notables were proximal with their peasants, on the one hand, with a feeling of independence both from the Ottoman wālī and the nobility-at-large, on the other (at that time, Mount Lebanon was under the jurisdiction of the wālī of Sidon); third, even though the Ḥarfūshes were Muslims, as Shī'īs they nevertheless were just another millet,in the same way that, say, Christians and Jews were not part of "us." The majlis will keep that in mind.
- 6 It is unclear why only a single volume has survived from all the minutes of the majālis that succee (...)
- 7 More correctly: maḥṣūl.
- 8 Majlis Wilāyet Dimashq, 67/98/7 Dhul-Ḥijja 1260 (December 18, 1844). Page and document numbers have (...)
- 9 This seems to have been a common local word, probably meaning "claims" or "demands" (from the verb (...)
- 10 The role and function of that dīwān is unclear.
13The majlis addressed the Ḥarfūshes through their representative, Emir Muḥammad Ḥarfūsh, who was appointed by the majlis as muḥaṣṣil(a tax collector of higher status to the multazim) to the region. He was obviously present at the majlis that Tuesday, December 18, 1844. In what seems to have been a follow up to previous sessions devoted to the Ḥarfūshes but not included in the present volume,6 the majlis looked as if in the middle of an already heated up debate. Regarding the sanjāq (province) of Ba'albak, whose revenues (muḥaṣṣaliyyah)7 Emir Muḥammad was responsible for collecting on behalf of the treasury, not much of the mīrī had been collected.8The majlis claimed that the Emir had promised them "to go to the aforementioned sanjāq and arrest all those who seized [istawla] the amwāl amīriyya, in order to extract from them all the dues from the villages." That, apparently, did not happen, and "All what resulted from their behavior was oppression [ṭighyān] and misbehavior [khurūj 'an al-ṭā'a] because they seized the māl mīrī of most of the villages. The villages should therefore be held responsible [yuḥāsab] for the receipts [ruju']9 in their hands, so that the villages which had still not paid all their mīrī dues would have them legally collected [bi-l-wajh al-ḥaqqānī] without any usurpation over anyone of the ra'āyā... Anyone who shows inappropriate behavior will be arrested and sent to the dīwān al-mushīrānī..."10 The text then summoned the preparation of detailed lists of all the villages with their modes of payments (full, partial, or no payment at all) in order to submit them to the defterdār.
14The document therefore claimed that the māl mīrī was collected and seized by force by a non-identified group that oppressed and mistreated the villagers. The textual vagueness is more than surprising since the appointed Emir was officially requested to arrest individuals that the majlis did not even bother to identify by name. Could it be that the majlis was expecting some form of reconciliation and therefore avoided denouncing local powers as a form of courtesy? Or did it simply avoid pointing by name to what was already obvious? As was common in such cases, "the ra'āyā and peasants" were made innocents and given a certificate of good behavior (ḥusn sulūk), while an unnamed group of individuals was demonized for having collected the mīrī illegally. So the implication here is that since only a small minority was illegally oppressing the villagers and their peasants, it was the local authorities' duty to free the ra'āyā from such an oppression. The division between oppressors and oppressed was useful to the majlis in that it gave a potential for military or political intervention; but, besides not naming directly the group of alleged oppressors (obviously, as we will learn from the following document, they will turn out to be the Ḥarfūshes themselves—but who else could be accused of such a hideous crime?), the document leaves open the issue regarding the reasons behind such an "oppression": Why did such a massive oppression, involving a large number of villages, take place? What was the aim of the alleged oppressors and why did no one from the villages' ra'āyā submit a petition on behalf of the rest of the villagers? In other words, the majlis chose to avoid the whole issue of the "autonomy" of the rural nobility as exemplified by the muqāṭa'jīs of Mount Lebanon, and that the reasons behind such upheavals—whether gradual or sudden—was a desire to collect and re-distribute the mīrī on a different basis than it has been hitherto practiced. Such a desire was prompted partly due to changing social conditions, with the peasantry emerging as a real force; and that was even more true in situations where the nobility found itself in proximity to its peasantry.
- 11 Majlis Wilāyet Dimashq, 69/99/8 Dhul-Ḥijja 1260 (December 19, 1844).
15The following day, on Wednesday, the majlis met briefly to discuss the case again: the official muḥaṣṣil,Emir Muḥammad Ḥarfūsh, was beaten up and humiliated by the Ḥarfūshes.11But it is unclear whether that took place overnight, after the majlis had encouraged, the previous day, the Emir to proceed forward with his levying of the mīrī, or whether the majlis knew about it but chose to hide the event for strategic reasons (one possibility is that they preferred not to show that they were playing hard from day one). The majlis then took a short break for the Muslim holidays and met a week later to discuss the case at length.
- 12 Majlis Wilāyet Dimashq, 69/99/14 Dhul-Ḥijja 1260 (December 25, 1844). The document should have been (...)
The condition of the Ḥarfūshs Emirs, muḥaṣṣils of the sanjāq of Ba'albak, is no secret. They collected the māl mīrī but kept it [for themselves]. They committed lots of bad actions [af'āl radī'a], so that when we have selected from them Emir Muḥammad Ḥarfūsh, and brought him to our side on the condition that he goes on with the acceptable services, including the collecting of the amwāl amīriyya. It was then decided, following consultations in the majlis and after an official document was drafted, that he should be sent [to the Ba'albak region]. So we dressed him up [albasnā-hu] and sent him with a military official, Muḥammad Aghā Būẓū [accompanied by 150 cavalrymen]. Once the [Ḥarfūshes] knew about it, and when the [two] reached the Biqā' [valley], they gathered with villagers of the Sanjāq and confronted the [two officials] with war and fighting, thus manifesting [a desire for] insurrection and oppression ['uṣyān wa ṭighyān]...12
16The document thus far gives the impression that the Emir had been appointed a week before, then went for his mission the following day where he got stuck with his clan and their villagers. In fact, the Ḥarfūsh notables as a group were originally appointed as muḥaṣṣils to the region (a similar function to the muqāṭa'jīs of Mount Lebanon), and only when they refused to proceed with their mīrī payments, was Emīr Muḥammad appointed (faraza: set apart, isolated, separate; if the use of faraza was deliberate, then this could be an indication of a process that was already violent in and of itself). Moreover, since the peasants had now sided with their masters, the question arises as to who was really oppressed?
- 13 An awkward expression, probably meaning "appoint the right person for the job."
When [the Ḥarfūshes] had expelled one of the defterdār's representatives, Ḥusayn Aghā, who was responsible for collecting the amwāl amīriyya, a decision was reached between the majlis and the defterdār in order to work out for a trustful link [rābiṭa ḥasana]13 in order to collect the māl mīrī that the aforementioned Emirs had taken [by force]. When [the idea] was put forward [to the majlis], it was decided to select Emir Muḥammad from [the clan] of Banū Ḥarfūsh... He was first living in agreement with [his own clan]... and then dissociated himself [insalakha] and his brothers [from the clan], came to Damascus, and was sent to the majlis. He promised there to collect the māl mīrī that was stolen in order to insure peace for the ra'iyya and the rest of the population [ahl] and begin construction in the region ['amār al-bilād]. [It was also agreed upon] that he should arrest his oppressive cousins, and attempt, as much as possible, to collect the māl mīrī from them and from their followers...
- 14 More correctly: munghamisīn.
- 15 Ma'āshāt,literally salaries, is closer here to "revenues." Those might have consisted of special ta (...)
- 16 "Impôt foncier," equivalent to 4/1000 of the value of lands subjected to the 'ushr.
- 17 A term commonly attributed to the Shī'īs by the Ottomans. It obviously referred to the Shī'īs' reje (...)
- 18 Original French (Latin) name: Krak des Chevaliers, one of the most impressive castles constructed b (...)
- 19 Majlis Wilāyet Dimashq, 69-70/99/14 Dhul-Ḥijja 1260 (December 25, 1844), a continuation of the prev (...)
At the majlis, it was noted that [the Ḥarfūshes] were immersed [maghmūsīn]14 into the well-being and benefactions [in'ām wa iḥsānāt] of the [Ottoman] state because of the regular global monthly salaries [ma'āshāt kulliyya]15 [that they received] and because of the sanjāq's revenues that they used to collect... Their subsistence [arzāq: income, revenues] was thus enhanced because they were responsible for collecting the mīrī and because, unlike many others, they were exonerated from the payment of the verghi.16 But all that emanates from them are signs of rejection, and they do not even deserve anything from that [well-being], primo, because they are known to belong to the confession of refusal [millat al-rāfiḍa],17 and, secundo, because all what they practiced was an excess of oppression and a seizure of [public] money; in addition to rejecting [our] ultimatum and beating [their cousin] Emir Muḥammad... What therefore came from them was nothing but the secession of the insurrectionists [inshiqāq al-'uṣāt] and the refusal of subordination [al-khurūj 'an al-iṭā'a]. Thus, there is a real possibility that such practices might extend to the mountains, sanjāqs, muqāṭa'āt, and nāḥiyas, such as Jabal al-Kalbayn and Qal'at al-Ḥuṣn,18 in addition to other places. It is therefore necessary to stop the actions [rad'] of such hypocritical confessions [al-ṭawāyif al-khabītha] in order to conserve [the integrity of] the ra'āya from corruption and keep the amwāl amīriyya [into safe hands]. [Official] soldiers should be sent [to the locality in question] ... and arrest [the Ḥarfūsh Emirs]...19
17Clearly, whenever the majlis was confronted with a "hard case" such as this one, the criteria for adjudication became altogether troubled. If adjudication consists, at its most basic level, whatever the ideological conditions, of an impartial (official) authority imposing itself between two or more disputants, and then ruling while following the established normative rules of the legal system in question, then the adjudication of the majlis must have lost its way at some point. In fact, what the above passage points to was a weak—if not total absence of—legal reasoning that was supposedly applied. Normative rules gave way to an insulting political language in which individuals that refused to pay their mīrī dues were ipso facto identified with their own group, the Shī'īs, or "the confession of refusal," or "the hypocritical confession."
18According to the majlis, the Ḥarfūshes were supposed to have had the very opposite kind of behavior from the one they manifested that year. They had special treatment from the Ottoman and local authorities, and were responsible for levying the māl mīrī—that by itself was a privilege since it enhanced their social and political status by placing them high in the hierarchy of landowning families (similar in many respects to the ruling muqāṭa'jīs families in Mount Lebanon); they were also exempted from many land and property taxes; and, finally, they used to receive lump sums (maqṭū') from special iqṭā'assignments. The majlis was therefore asking the most obvious question: Why would a dominating family with so many privileges choose to withhold public funds instead of giving them to the treasury? Because they were Shī'īs, the majlis replied.
19Ironically, a great deal of the first Tanẓīmāt era, as stated in the 1839 Gülhāne edict, emphasized the right of "minorities" to have their fair share within the legal, political, and economic system; the edict also stipulated an end to the iltizām and a replacement to all kind of "intermediaries"—such as the Ḥarfūshes—by state appointed employees that would collect taxes as state agents without any of the political or social privileges traditionally allocated to tax-farmers. Needless to say, the majlis had no interest in the politics of reforms, and, for its twelve-member board, it was business as usual—an administration of things, people, resources, and money in such a way that it kept the old hierarchies between families, individuals, and groups intact. In fact, a "politics of notables" as such did not exist, but only an administration based on a combination of rural and urban networks. What is striking about this case, is how much the rural notables, whose kin relations were constructed along complex genealogical lineages of 'ashā'ir, were, in the final analysis, a terra incognita in the eyes of the small group of the Damascus a'yān. For one thing, the rural notables enjoyed closer links with their peasantry—something that the notables of Damascus were not accustomed to (their relationship to their peasantry was usually through intermediaries: secondary multazims, rural aghās, money lenders, etc.)—and their small wars with one another lacked the subtlety of their urban counterparts. Indeed, like the ruling families of Mount Lebanon, their relationships were bloodier—in particular between brothers and cousins; their marriages were for the most part kept within the clan, between cousins, while the majority of marriages of the Damascus nobility was maintained among the upper a'yān families themselves, thus considerably widening possible choices. To be sure, hierarchy and social status were primal.
- 20 Majlis Wilāyet Dimashq, 110-111/149/15 Muḥarram 1261 (January 24, 1845).
- 21 Seems to have been a colloquial word from the root ḍṭa, to control, adjust, regulate and check.
20The case remained dormant for roughly a month, more precisely, until the first month of the new year, 1261 (1845). The data provided in the minutes of the majlis became more specific: the rebellious persons from the Ḥarfūshes were finally fully identified, and the sums they illegally collected were also specified, and even the nature of the special arrangements between the local authorities and the alleged rebellious persons were revealed. Described as the culprits (ashqiyā) of Banū Ḥarfūsh, four Emirs were identified as having sacked 465,000 piasters from the māl mīrī of liwā' Ba'albak.20 Allegedly, one of the four, Emir Khanjar, had acknowledged that he and his associates owed the treasury the sum of 200,000 piasters, which he promised to pay within a period of thirty-one days on the sole condition that the control (ḍabṭiyya)21 of the liwā' remains for himself and his cousins, thus maintaining the same privilege as to the preceding year (1260). As to the remaining 265,000 piasters, it would be eventually paid, but no time framework had been worked out yet. Emir Khanjar, the text reveals,
. . . thus presented a memo [taqrīr: report] that [the 265,000 piasters] will be kept with his relatives [ahl], and that they will be drafting a written document on their behalf and on behalf of the elders of the confessions [mashāyikh al-ṭawāyif] of the aforementioned muqāṭa'a. Thus, if they were granted control [of the liwā'], they will keep their promises [concerning payment of the withheld money], but if someone else is to be granted control [ḍṭiyya], then there will be even more people leaving [nazaḥa] their villages than in the previous month.
21The text now reveals that those same "culprits" might have been linked to much deeper social movements. Thus, the extorted money from the māl mīrī was kept with "relatives"—an indication all by itself of the broadness of a movement also supported by elders, villagers, and peasants. The ambiguous closing, concerning villagers fleeing their homes in fear of a harsh treatment from muḥaṣṣils that might be appointed to replace the Ḥarfūshes, might, in turn, constitute another indication that the latter were not that much of an oppressor; they were rather adjusting their power-relations to the deep discontent of the Ba'albak region peasantry. The episode also shows how much the rural mīrī collectors, whenever belonging to a minority group, enjoyed tremendous bargaining powers vis-à-vis the local authorities and the central state.
- 22 Also: khatl, deceit, trickery, chicanery and fraud.
After consultation at the majlis, it was agreed upon that [such arguments presented by the Ḥarfūshes on their behalf] were part of an insurrection ['uṣyān: disobedience, insubordination] so that they constructed a deception [mukhātalah]22 in order to keep up with the amwāl amīriyya and transform the latter into a hostage [rahīna] like situation so that they end up getting [their request] to control [the liwā'] in 1261. They will then [consolidate their] control [over] the ra'āyā and their relatives so that what they will collect in 1261 will serve as a way to refund [their dues] for 1260. Because of this, their promises, being meaningless, should not be accepted since when they were in control in 1260, they promised in writing that they will be levying the mīrī. But the document, since then at the treasury, led to nothing except their sacking the māl mīrī and preparing for [movements of disobedience]...
22The text then goes on and recollects the events of the preceding year: how a small army unit was sent to the region, an act that led to the division of the Ḥarfūshes into two groups, one of them, according to the document, led by Emir Kanjar, who had negotiated with the authorities in Damascus in order to exchange the mīrī with a new iltizām contract for the current year. The majlis, however, reiterated its claims concerning such illegal acts: that the withheld money was kept in a hostage-like situation to be released only when certain conditions were met; and that the whole enterprise was aimed at disappointing, or rather, bargaining first and then disappointing. Thus, the majlis made it clear that it could not accept such erroneous behavior anymore, and that there was an urgent need "to manifest the power of (state) rule [iẓhār shawkat al-ḥukm]." It therefore decided that their new appointed muḥaṣṣil,Emir Muḥammad, should enjoy their full support in order to be capable of fully controlling the rebellious tax units and subject them to state control as soon as possible.
23To be sure, urban and rural notables battled on the ground for the distribution of revenues in different ways. Rural notables had better control over their territory, which meant that troops had to be dispatched, in rare cases of insubordination, from the nearest garrisons. By contrast, urban notables controlled the distribution of revenues in more subtle ways: thus, whereas the Ḥarfūshes had to hostage the mīrī in order to ensure that their next-year contract would be renewed, the notables of the majlis ensured their iltizām rights by simply belonging to the majlis. But, in both cases, the outcome was similar: the state had to ensure special privileges—the iḥsānāt, as the majlis named them—to its "rent-collectors" in order to guarantee their subordination. That in itself was enough to institute a state apparatus that could not distance itself from the power-relations within society. In other words, the state had to struggle for its own political and economic survival with those same status groups that it appointed as "rent"-farmers and upon which its political legitimacy rested.
24The failure in creating objective grounds for the state administration in order to address itself as an impartial arbitrator over "social" conflicts could best be assessed within the multiplicity of judicial jurisdictions and their different grammars and incongruence with one another. In spite of the fact that sharī'a court judges were state appointees, rulings depended more on the discursive nature of Ḥanafī practice than anything else; that discourse was, in turn, highly ambivalent towards few of the major issues of the times such as the appointment and competence of judges, the massive state ownership of rural lands, and procedures in criminal investigations, or lack thereof. Moreover, sultanic legislation, which in some instances was contrary to the spirit of Ḥanafism (interest loans are one such example), had its own discourse and grammars; the grip of the sharī'a courts over complex cases loosened throughout the nineteenth century as more specialized courts and majālis were created; those, in turn, instituted their own discourses and grammars. What is striking about the Damascus majlis, which had to adjudicate on substantial issues whenever it was confronted with a hard case, was a discourse structured not upon a legal but political language, even to such an extent it could hardly be called "legal." To be sure, the legal side predominated in more routinized cases, and even in a few "hard" ones, but the "politicization of the legal"—especially when it manifested itself so bluntly and openly—implied a failure to depoliticize society by means of the legal. In fact, a handling over of "taxation" problems to the judicial apparatus would have freed political institutions from the burden of decision-making in that area. However, the policy of distributing and allocating iltizām rights in terms of allegiances to the state renders it more problematic to consider "taxation" as a legal matter only.
- 23 Majlis Wilāyet Dimashq, 52/74/25 Dhul-Qa'dah 1260 (December 6, 1844).
- 24 Frank E. Vogel and Samuel L. Hayes III, Islamic Law and Finance (The Hague: Kluwer Law Internationa (...)
25Consider for example the petition [C 9-2] presented to the majlis on behalf of the inhabitants of the village of Dūmā, which despite its simple framework and an incomplete ruling, is nevertheless suggestive. (Another major difference with the sharī'a courts was that the latter handled cases mostly between individuals, and rarely as class-action lawsuits, while the majlis cases were often—but by no means all—on behalf of collectivities: that was mostly due to the fact that peasants, among others, implicated in one way or another in the iltizām process, usually labored and paid their dues as a collectivity, and hence filed action as a group.) The inhabitants were complaining against the creditor of their village (commonly known as ṣūbāshī) who had just died ten days ago, and were requesting a revision of the terms of their agreement with their deceased creditor in a more equitable way. The villagers described their recently deceased ṣūbāshī as having "burned us with the profits [he imposed] [ḥaraq-nā bi-l-murābaḥāt] and other [impositions] and led us to destruction [kharāb]."23The use of murābaḥa—either as "profit," or a markup contract24—a term to be employed in later firmans when legalizing the loan-with-interest custom (C 10-2 infra)—even though Ḥanafī texts limited murābaḥa to a "resale with stated profit"—is an indication of the commonality of such practices and their precise link to the iltizām system and mīrī collection, so that the majority of the peasants found themselves in an impossible situation—to request loans from professional creditors in order to clear their mīrī dues; that in turn meant the payment of high interest-loans.
- 25 A colloquial word, probably originating from ḍṭa, to check.
26According to the petition, a previous settlement had been reached with the authorities of the majlis so that the loans would be collected in multi-installments over a period of several years. Thus, out of the remaining debt of 105,000 piasters, the majlis agreed that reimbursements could be completed over three years, or 35,000 piasters for each year (all those agreements were drafted in writing, in documents referred to as maḍbaṭa,25with copies kept with both parties). When the village creditor died ten days prior to the petition's submission, a court had requested from the villagers to clear what was left of the original debt, namely 30,000 piasters. Even though the petition did not clarify to whom the payment should be made, it does seem, however, that the matter was brought forward in a sharī'a court by the inheritor(s) while clearing out the deceased's succession. The villagers, from their part, denied that they still owed their deceased creditor any money, and brought their witnesses and receipts to court for corroboration. The judge, having requested from the inheritor to see the maḍbaṭa, gave them a ten-day time limit; but as soon as their time ran out, the inheritor denied the existence of a document that allegedly sealed a debt contract between the two parties in question. The villagers therefore requested from the majlis to provide them with a copy of the document in order to pass it to the sharī'a court judge. A copy was indeed found in the minutes of the majlis, but for an unknown reason the original date of the contract was not reported in the petition's reply and the space where it was supposed to be noted down was left blank.
- 26 See infra Chapter 10 on sultanic legislation.
27Despite the incompleteness of that case, it does provide us, besides few insights on debt-mechanisms among the peasantry, on the relationship between the sharī'a courts and the majlis. The main point was that a loan contract between the peasants of a village and their creditor had to be approved in the majlis rather than in a sharī'a court; but as soon as the deceased's succession had to be dealt with in court and the loan issue came up, the judge requested a copy of the original loan contract, a request that was granted by the majlis. The question, therefore, is why a loan contract of this kind should be part of the majlis' territory? In fact, from a legal point of view, a loan contract should have been within the jurisdiction of the sharī'a courts which should have followed Ḥanafī practice on such matters. The problem, however, was twofold: 1) both Ḥanafī practice and the sharī'a courts did not acknowledge loans with interests as such (or with a murābaḥasurplus, as the sultanic firmans would say) because the amwāl were to be exchanged only on an "equal" basis, even though transactions are expected to generate a limited "profit"; this gap between canon law and customary practices was ultimately filled by sultanic ordinances as noted earlier;26 and 2) the loans provided to the peasantry—and the above loan was a large one indeed—eventually became more of a political than a legal issue because of their direct link to the iltizām system and mīrī collection; in fact, such loans were supposed to keep the collection of mīrī dues following its own regular pace with a minimum degree of disruptions; the major source of disruption, however, was the inability of the peasantry to pay on time for a variety of obvious reasons. The creditors therefore—and they were of various backgrounds—filled that gap, and due to their crucial role in the process, they had to be protected by a sui generis institution like the majlis which, in its own right, was more decisive than the sharī'a courts.
28But—this is the point—such solutions to longstanding political and social problems only aggravated the fragmentation of a legal system already suffering from the numerous patches it received over the centuries. To be sure, neither did it help in creating a more homogeneous code (a step that will be pursued later, but only by importing Napoleonic codes in extremis), nor in limiting the different conflicting judicial territories. The purpose of the majlis itself as a legal institution was indeed to bypass the limitations of Ḥanafī practice and "apply" that other parallel set of codes—sultanic legislation. Such a division, however, between two parallel sets of legislation and adjudication not only proves the difficulties of the legal and its limitations, but more important, it indicates that political overtones often trespassed over the legal so as to render the latter limited to private matters and disputes. In fact, because the depoliticization of taxation, land ownership, and rent, among others, proved a difficult matter, the legal had to be supplemented by other quasi-legal institutions whose sole purpose was to maintain the state's control over land, rent, and taxes. Depoliticizing land ownership, and the creation of a taxation system indexed on the value of rent, would have also implied a de facto depoliticization of the administration of justice as a whole and a radical restructuring of Ḥanafī practice in such a way that it would have integrated basic procedural civil and penal matters. In the two above cases, the majlis either had to confront itself—as a body of notables—to a group of rural nobility with whom it was directly competing over the distribution of revenues in the province, and thus adjudicate accordingly, or adjudicate while sharing the administration of justice with the sharī'a courts (C 9-2). Both, however, show more an ineffective and crippled justice, weakened by its divisions, than a proper depoliticized administration.
- 27 Majlis Wilāyet Dimashq, 33/54/10 Dhul-Qi'dah 1260 (November 21, 1844).
29In another similar case [C 9-3], the inhabitants of the village of Ghazlāniyyah also petitioned for having been overburdened by their creditors.27 That indeed seems to have been a common problem to which the majlis had to devote lots of its energies. The petition claimed that the villagers were worn out with debt to their ṣūbāshī and to the mīrī, in addition to several "debt receipts (ḥawwālāt)" that needed clearance. Then, after describing few difficulties that led in the course of that year to a bad harvest, the petition concluded with a short note summing up the creditors' function: they "strengthen and let us proceed forward [yuqawwū-nā wa yumashshū-nā]." The expression is less poetic than it seems: taqwiya, to strengthen, was used as a euphemism for "to credit" or "to give a loan." Thus, either the peasants or the majlis would make a request for a taqwiya, and this was no more but a step to ensure the payment of the mīrī on time. The only party that became "strengthened" in the process was the treasury while the peasants lost more and more of their resources.
30The majlis requested the presence of the village's first ṣūbāshī, who duly apologized for being sick and who claimed that he had disconnected himself from the finances of the village; he also wanted a clearance of the village's account, to be worked out with its elders, and promised that receipts would be provided with all payments. A second creditor was then called upon who pledged to foster a close relationship with the village; such a promise, however, was accorded only on the condition that the other creditors—referred to as lenders (dayyānah) and ustādhs—would not be refunded, at the moment of threshing (baydar), before him: "he gave his guarantee to ensure the amwālto the treasury [in due time] so that the mīrī does not get badly affected." In other words, what the ṣūbāshī was in effect requesting was that he would be clearing the mīrī dues on time for the villagers, and thus ensure that nothing would be delayed, on the sole condition that he should be the first one reimbursed, among all lenders, during the season of threshing. In a society where the political and economic were closely linked, all kinds of creditors were neither engaged in a pure competition with one another nor freely competing on the market, and were politically protected for the simple reason that without them, the payment of mīrī would have lagged behind year after year. In that system, therefore, creditors cleared at least part of the mīrī—or "rent"—on behalf of the peasants; but in order to do so they were granted special privileges by state institutions, among them the majālis. All privileges meant to ensure one thing: that the creditors would be paid as soon as possible by the peasants, and if that did not occur, the payment of mīrī could slow down. Thus, the perseverance of the system rested on a "circle of debt" in which the peasants were the biggest losers: being for the most part unable to clear their dues on time, the state had to insure that at least part of the dues be granted from other sources—that was the main function of creditors/lenders.
After consultation in the majlis, it was decided that since [the ṣūbāshī] Muḥammad 'Alī Aghā al-Ja'farī guaranteed, while present in the majlis, to strengthen [taqwiyat] the people of the [Ghazlāniyya] village with whatever they need, from seeds or cows, in addition to the payment of the amwāl amīriyya that were requested of them from the treasury, on the condition that at the moment of threshing [waqt ḥuṣūl al-baydar], the revenues of the peasants [maysūr al-fallāḥīn: savings] should be bestowed to none of the lenders [dayyāneh] prior to the payment of all dues owed [to the primary ṣūbāshī] for having [submitted the mīrī] to the treasury and strengthened the peasants. If anything remains with the peasants, they will pay [from those savings] to the [other] loaners. Such a step is necessary to speed up [tashhīl] [the process of collecting] the amwāl amīriyya.
31The political hierarchy created between creditors—or lenders—was an indication that they were not in competition within an economic market of buyers and sellers. Thus, the villagers were not strictly speaking of the "buyers" of goods in cash or kind, for which they had to add an "interest." Rather, they received an equivalent of their "rent," mostly in cash and partly in kind, which they refunded later—either totally or partially—from their produce. The peasants had therefore no choice but to comply to the "circle of debt" instituted by the state: besides ensuring the payments of mīrī at the required time, it was a system that generated cash more easily to the treasury since a full reliance on the peasants' revenues would have implied payments in kind for the most part.
32The construction of the two-part text is in itself revealing. The villagers, having petitioned together as a collectivity, introduced themselves to the majlis as "your slaves ('abīdu-kum)," in an overall style that was visibly too complacent in favor of the majlis. Regarding their request, the text simply demanded, rather awkwardly, that not all debts be cleared at once: it was thus indirectly requesting that a priority be accorded to few lenders over others. Thus, whereas the sharī'a court texts were structured around well crafted formulas, and, in the case of a litigation, the language was accusatory, the petition and reply style of the majlis had no such binary organization based on a plaintiff-defendant structure of events. The majlis' handling of petitions shows a less structured pattern of cases with more unpredictable rulings, even though debt petitions, due to their sheer number, were not "hard" by any standard. In any case, this is a far cry from the routine rulings of regular judges: had a separation between the political and economic spheres existed, the majlis cases would have for sure been within the jurisdiction of professional judges.
A plea for mercy
33To be sure, the petition system rested on a major fiction—that of collectivity. The collectivities that petitioned the majlis lacked a clear legal institutional framework: Who were the ahālīof a village and what legal rights did they enjoy as a collectivity? Thus, in the sharī'a courts, people took action either as individuals in their own name, or, when a number of persons were involved, they usually were part of an institution, or a contractual representation (a guild, beneficiaries of a waqf, etc., but then each one of the plaintiffs and defendants was individually named). Since for Ḥanafīs the category of class-action suits is not clearly defined as such, individuals should be clearly delimited since a ruling cannot address a no-name-collectivity. That was not required for the majlis petitions: collectivities could be anything from a clan, such as the Ḥarfūshes, the inhabitants of a village, or even the entire population of Bilād al-Shām for that matter; and it did not matter how vaguely defined those collectivities were. But was there a class-action notion with which the regional councils did operate?
- 28 The expression was inaccurate because what was denoted were the inhabitants of the villages in the (...)
[C 9-4] A copy of a petition from all the inhabitants of Damascus28 and Ḥimṣ to the Sublime Porte requesting a plea for mercy [istirḥām]. Let God preserve the sublime state of the sultanate so that justice prevails.
- 29 Probably an abbreviation of the Turkish çiftlik, or mazra'a, farm.
- 30 Probably the land-tax, usually referred to as verghi, paid in cash, and assessed on the basis of th (...)
- 31 This seems the part of the mīrī paid in kind.
- 32 It is not clear what those ta'shīrāt shar'iyyah referred to. The 'ushr tax was, in the classical Ḥa (...)
- 33 Written wirkū in Arabic, or the land-tax, based on the value of the land.
- 34 Majlis Wilāyet Dimashq, 100/135/5 Muḥarram 1261 (January 14, 1845).
The populations of the villages of Damascus and its four nāḥiyas, in addition to Ḥūrān, Ḥimṣ, Ḥamā, and Ma'arrat [al-Nu'mān] would like to inform [the majlis] that the heavenly epidemics [āfāt samāwiyya] which became known to and heard by everyone, in the eyālet of Damascus—that same eyālet which is the gate to the honorable Ka'ba, and a holy land where Prophets have rested—those [outbreaks], resulting from extremely cold weather, have destroyed vegetables, fruits, and plantations, and in 1259-60, up to this day, locusts abound, thus provoking the death of cows and cattle from diseases. Moreover, those wretched Bedouins [ashqiyā al-'urbān] have been dominating the Ḥūrān, while the Druze have exercised their domination over the Biqā', and this year [1261] the Bedouins planned several attacks on many nāḥiyas and 'ashāyir; their presence thus created a great deal of damage and a total hardship. Soldiers had to be dispatched in order to protect the villages and ra'āyā from those wretched people, so that many villages have been destroyed as a result of those heavenly epidemics: some had all their belongings totally wrecked, while others had only half to a third damaged. Some people left their villages to more secure places outside the eyālet of Damascus. [If those people] were forced to clear the rest [of their mīrī dues] they would have perished as everyone else did because of the amwāl that were imposed on them and whose value has increased during the Egyptian period [1832-40]. Thus, in Ḥūrān, 'Ajlūn, and other places, the value of a single jift,29 prior to Egyptian times, was a hundred piasters in such places as Aleppo and Sidon; but, during the Egyptian period, [it] has increased up to three-hundred piasters,30 not counting the barley and wheat,31 and not counting also the legal tithes [al-ta'shīrāt al-shar'iyyah].32 [All that] adds up to three-fourth of the revenues of a jift. The situation [of those villagers] has deteriorated because of those heavenly epidemics and other fated events, and, as a result of all this, it seems opportune [at this juncture] to request your forgiveness...in order to avoid the degradation of the situation of the ra'āyā [because of the heavy load] of the [requested] amwāl which consist in the following: the virghu,33 the ta'shīr shar'ī[tithe, or mīrī], the customs, and the jizye [a poll-tax on non-Muslims]. With the increase in the amount of the amwāl [paid as "taxes"] since Egyptian times, as explained above, and the coming down of epidemics [nuzūl al-āfāt]—from the cold, locusts, the Bedouins, death of the cattle, etc.—...[we are pleading] for mercy [istirḥām]... in order to protect the ra'āyā and the amwāl amīr because the eyālet of Damascus assumes such things as the honorable Ḥajj and the army expenses of the province...34
- 35 See Andrew Shryock, Nationalism and the Genealogical Imagination (University of California Press).
34Even though the majlis did not bother to reply to that petition, its importance proves crucial for an understanding of the various types of "taxes," the language of "popular pleas," and the relationship between the peasantry, on the one hand, and the Bedouins, and various confessional groups, such as the Druze, on the other—all of which, together with the cold, locusts, and death of the cattle, were portrayed as natural phenomena whose mere presence in a particular region caused ravages and destruction. To be sure, the Bedouins at that time—the 1840s—were autonomous, and not only were they outside state law and control, but they imposed their own fees on anything from the pilgrims to the peasantry. Thus, by the time the "rule of the mashāyikh," as it was known, deteriorated in the 1860s, when the state began its control over the regions traditionally dominated by the Bedouins, the latter added to the misfortunes of the peasantry by collecting their share of the mīrī from them.35
35Why did the majlis leave the petition with no reply? After all, a specific request was made by the ahālīconsisting of a reduced mīrī for the year in question; enough reasons were provided; and the majlis should have known how convincing the arguments were. One reason could well be that the covered area in crisis was too broad—the entire province of Damascus up to Ma'arrat al-Nu'mān north. In other words, the request was more symbolic than real since the entire populations of the province of Damascus could have no real legal existence either for the majlis or a courtroom for that matter. Four questions follow from such premises: 1) Who drafted the petitions? 2) For what purposes were they drafted? 3) Why were copies sent to the majlis? and 4) Why did the majlis include them in its minutes considering that it had no intention to reply?
36As a reminder, the petition, unlike the ones analyzed before, was addressed to the Sublime Porte and not to the majlis itself—only a copy was passed to the latter. The majlis was therefore not requested to reply directly, but nevertheless kept a copy as part of the petitions it regularly received. Even though that petition was broader in scope than the ones the majlis was accustomed to, the tone, however, was very much similar to other complaints about the iltizām system. A striking similarity lies in not addressing the iltizām issue frontally; thus, even though the mīrī dues amounted to no less than the three-fourths of the produce, leaving the peasants with barely one-fourth for their survival (supposing, of course, that no one else came with additional obligations), "the cold, locusts, Bedouins, and the death of the cattle, among others," were perceived as some of the major causes—as phenomena of nature—for the peasantry's impoverishment. Moreover, the ra'āyā had to be protected on a similar ground with the amwāl amīriyya: without the amwāl, the pilgrimage could not be assured, and entire areas would be left without the protection of the sultanic soldiers. It was also necessary in order to keep up the province of Damascus—often referred to as baldah—and its cities in good shape. This all rendered the ra'āyā "immersed in the gifts of the sublime state [maghmūrīn bi-in'āmāt al-dawla al-'ulya]," so that there was no point in complaining about anything. Indeed, the causes for "disasters" have been naturalized to the point of eliminating their social roots altogether.
37Such self-congratulatory language, even though supposedly addressed by the inhabitants of a province that suffered tremendously in the last two years, was common to other petitions as well. It belonged to the fictional nature of such texts to be self-congratulatory and to speak in the name of the people, for the sake of their well-being and safety. In fact, the incipient role of such texts came precisely from their fictional side, and in a way was characteristic of all political and legal fictions; it was by making some unreal entities function as if they were real that fictional texts were so effective. Thus, the idea of the entire population of the province of Damascus petitioning the Sublime Porte had no real existence, and it was precisely because of its non-reality that it became such a necessary legal and political tool. Things were always accomplished and performed in the name of other individuals—as a collectivity—but since the idea of a collectivity is both a political and legal fiction, it becomes actualized only in the opinions and codes that derive from it. Thus, the death of the kharāj payer was one of those legal and political fictions upon which the entire landownership of the empire rested; in itself it was only a fictional idea, but several opinions, firmans, and laws were enacted on the basis of such a fiction: in other words, the fiction became actualized in those same normative rules. Similarly, the legal and political fiction of the population of a province seeking the mercy of the Porte was essential, less for the idea itself than for its consequences. In fact, in a society where the people were in no position to elect a body of legislators, the political fiction of the ra'āyā requesting something from their sultan was more than essential because it portrayed the people in a position of demanding legal action of some kind; the sultan's legislative effort was therefore deployed as a result of the ra'āyā's demand for a just and equitable order of things.
38To analyze the discursive structure of petitions drafted in the name of fictional collectivities, the role that powerful symbolisms play while engendering fictional constructions needs further consideration. Besides the fact that symbolisms create a level of reciprocity vis-à-vis sultanic legislation—otherwise the sultan would have been perceived as imposing his legislation on his ra'āyā—collective petitions attempt to portray the dangers, both natural and social, that surround a locality, as part of a divine order of things so that "state" and "society" become naturally irresponsible. Natural—or heavenly, as they were called—misfortunes come first—epidemics, floods, severe cold, dryness, low rainfalls, to name but the most common—while "social" misfortunes are subsumed under the heavenly ones and come only next in order: Bedouins, Druze, or Shī'īs imposing their arbitrary rule on a locality; or multazims levying more mīrī than what they were allowed to, etc. In the same way that the natural is depicted as having occurred for no specific reason and has to be accepted as such, social misfortunes are perceived in a similar way, namely as events with no specific (social) logic. All such unfortunate events, however, whether natural or social, were in need of sultanic ordinances to recreate order and harmony—hence, the māl mīrī had to be reassessed because of such misfortunes. In short, fictional petitions were an essential ingredient of many legal and political texts precisely because of the reciprocity that they engendered; they were drafted in such a way so as to create a two-way communication fiction between the ra'āyā,on the one hand, and the sultan and his bureaucracy on the other, not to mention the various intermediaries such as the regional councils. That was a dimension that was less necessary to the sharī'a courts since litigations, contracts and obligations, and even torts and crimes, were for the most part a pursuit of private interests. The courts thus pushed for no claims towards the global well-being of a community—they simply assumed it in their practice.
Family intrigues
- 36 Majlis Wilāyet Dimashq, 4/13/11 Shawwāl 1260 (October 24, 1844).
39The petitions' grammar was so essential and so characteristic to the majālis that even privately signed petitions were drafted as if they had a higher purpose—a tone that the sharī'a courts lacked. Consider for example the petition signed by a certain Muḥammad al-Wafā'ī al-Ḥumṣī [C 9-5]. He made the claim that he had just left his family, children, and the mosque he was in charge of specifically for the purpose of coming to the majlis in order to introduce its members to the condition of the village of Muhājiriyyeh.36 His uncle, 'Umar Efendi, had, for his part, claimed that the village was his own çiftlik (farm), thus denying its ownership to a waqf. Ḥumṣī therefore urged the majlis to transfer the case to a sharī'a court—that in itself is an indication of a crucial role for the majlis—some kind of a higher "appeals court" that either made final decisions that "lower" courts were unable to handle, or routed cases to the other courts. As before, the question needs to be raised as to why a conflict over the status of a çiftlik was primarily handled by the majlis rather than by a sharī'a court, in addition to the reasons behind the petitioner's desire to have his case transferred to a sharī'a court: What were the real benefits? After all, sharī'a courts should have in principle been ready for such cases, especially since accusations of alleged "occupation [waḍ' yad]," whether real or fictitious, of milk and waqf properties were quite common.
40Interestingly, this case was structured around a litigation similar to ones common in sharī'a courts—with two disputants. A crucial person here turned out to be the general administrator of waqfs in Damascus, Aḥmad Efendi Mālikī Zādah, whose official title was nāẓir mu'adjilāt al-awaqāf; mu'adjle, for both mālikānes (lands granted as life-appointments) and waqfs, probably referred to lump-sums that had to be paid to the treasury. It was indeed Mālikī himself that directed all hearings and requested that the defendant, 'Umar Efendi 'Aṭā'ī Zādah, be present at the majlis. The plaintiff claimed that he was himself an administrator of a mosque in the city of Ḥimṣ, based on an honorable berāt dated November 10, 1842; that appointment gave him supplementary duties, besides administrative routine tasks, such as teaching, the imāmah, and that of khaṭīb as well. One of the properties belonging to the waqf was the village of Muhājiriyyah that his opponent was claiming as his own çiftlik:Ḥumṣī claimed that he leased it to 'Abdul-Raḥmān Aghā, an ex-muḥaṣṣilof al-Mu'arra.
- 37 The reference to maqṭū', "assignment," might imply that the property was not the defendant's own bu (...)
- 38 See chapter 3 on contracts for a discussion of those and related terms. For our purposes here, it i (...)
- 39 This might be an indication that Salīm Bek was an Egyptian who moved to the area with or after the (...)
41The defendant responded that he has been in possession (mutaṣarrif) of the farm for fifty years, which was originally assigned to him as mīrī (maqṭū' li-jānib al-mīrī)37 based on several sharṭnāmahs, in which he also possesses both mashadd maskeh and kirdār rights.38In 1835, he leased it with few other properties to a certain Salīm Bek until the latter left for Egypt.39 He then rented it to the aforementioned 'Abdul-Raḥmān Aghā (whom the plaintiff had already claimed to have been his tenant), a rental that also included a few other connected properties; that tenant was also responsible, based on a berāt dated September 27, 1806, and then renewed in 1842, for the administration and teaching of the aforementioned mosque.
42The plaintiff responded that the village belonged to his grandfather's waqf, and, based on the conditions placed on those properties, he became the appointed manager, spending some of the waqf's revenues on the mosque while the rest went to the beneficiaries. He added that 'Abdul-Raḥmān Aghā was a tenant for three years, and then requested from the defendant to furnish official documents that would render his claims viable; he also urged him, if he had one in his possession, to show the waqfiyya drafted by a judge in Ḥimṣ and which was the one prepared by their grandfather (the defendant was the plaintiff's uncle). The defendant, however, promptly replied that he had no such waqfiyya and was never provided with one.
43The plaintiff then unveiled to the majlis a document from the waqf's archives in which the defendant was acknowledging that the village was part of his (and the plaintiff's) grandfather's waqf; the document was in fact nothing else but the farm's lease with its kirdār and manāfi' to Salīm Bek towards the end of 1835. The rent would pay 500 piasters to the treasury and 400 to the waqf (an indication that a waqf dhurrī had, like any other property, mīrī dues—but what about a waqf khayrī?). It was then the defendant's turn to unveil another document outlining the conditions established by the founder and also containing the text of a lawsuit between all the founder's children, males and females, and in which he personally won the case over the waqf's administration. He also brandished the text of a firman establishing that the village was an assignment, maqṭū', whose revenues should be at the disposal of the aforementioned mosque devoted to praying, preaching, and teaching. The plaintiff in turn exhibited another firman, dated April 13, 1794, establishing that the village, whose mīrī dues were fifty piasters, should have its revenues devoted to the preaching and teaching at the same mosque.
44Finally, the defendant was requested to disclose all documents that would make his case stronger. He thus unveiled a document from the late Aḥmad Pasha al-Jazzār (who, as his name indicated, was a tough and highly influential wālī who governed over vast domains from the small coastal city of Sidon), dated January 9, 1804, and addressed to the mutasallimof Ḥimṣ and Ḥamā, informing him that the defendant of the current case had acknowledged the existence of two farms, one of them in Muhājiriyyeh, whose mīrī dues amounted to 474 piasters, and whose revenues were to be allocated for the mosque above.
- 40 No indication was provided as to what the dīwān al-'ālīmight have been. It does seem, however, that (...)
- 41 The plaintiff's final request and the majlis' reply are both on p. 6 of the minutes, and both numbe (...)
45The majlis, realizing that all those claims and documents amounted to nothing but a pile of contradictory evidence, requested a duplicate of the original waqfiyya, but to their surprise, both parties denied having a copy. The general administrator of waqfs therefore decided to transfer the case to the upper dīwān.40 But, in a surprising move, and immediately after the text of the majlis' procès-verbal (referred to as jurnāl) in which it openly confessed in its concluding remarks that conflicting evidence from both sides renders any ruling difficult, the majlis accepted another signed petition from the plaintiff (that he wrote all by himself) and in which he pleaded the majlis to release an official document acknowledging that the status of the village lands was indeed waqf "since it has become known to you, respected members, that [they were bequeathed to] the waqf of the mosque of imām 'Umar." Then, in what seems to have been like a final closure to the case, the majlis accepted the plaintiff's request on the basis that one of the documents presented by his opponent and emanating from the late wālī al-Jazzār, recognized the waqf status of the village and its lands; and now that that status had been accredited, said the majlis in its final reply, the manāfi'that the defendant was proclaiming as his should be checked upon and legalized in a sharī'a court.41
46A routine dispute over a family waqf thus fell within the jurisdiction of the regional council rather than adjudication in a sharī'a court: Was it because of the mīrī dues that even exceeded the beneficiaries' revenues? Two members of the same family but of different generations thus claimed that they were the sole beneficiaries of a grandfather's waqf and denied to each other any benefit from the totality of those same rights. In the context of a sharī'a court, the judge would have requested an examination of the original act of the waqf—that is, the written words of the founder; problems arose, however, whenever part or all of the waqfiyya's act was orally modified by the founder prior to his or her death: witnesses had to be brought in to testify that they indeed heard the founder say so-and-so on such-and-such on occasion, and Ḥanafism was overall favorable—at least since Ibn Nujaym—to the oral alterations of waqfiyyas (C 8-1). So why was that waqf case, between uncle and nephew, brought to the majlis rather than a regular sharī'a court? Judging from the few pieces of evidence outlined above, only one answer comes to mind: at least part of the waqf, if not all, was an assignment, maqṭū', going back to the last decade of the eighteenth century, and since assignments, iqṭā'āt, were political in nature—the sultan assigned a muqāṭa'ato a family as a sign of its loyalty to him—the confusing nature of this waqf had to be dealt with in a majlis rather than in an ordinary court—the latter were by definition non-political and usually limited to private matters. Thus, once more, the political nature of the land tenure system ipso facto politicizes the legal so that it was impossible for the regular courts but to restrict themselves to less ambitious cases which, at least on the surface, had no political implications.
47Two levels need to be therefore considered: the ambiguities of the case itself and the procedures of the majlis: How did they differ from those of the sharī'a courts in similar cases? Concerning the waqf itself, it needs to be known that a village that was initially granted as maqṭū' later became one of the waqf's properties and survived for several generations. The assumption here is that maqṭū' was a state (sultanic) assignment of a muqāṭa'agranted to an individual or family, which stipulated that a lump sum had to be paid as mīrī. Because lump sums were generally good deals to the muqāṭa'aholders, they were considered as special arrangements that usually were not transferable. Ḥanafī jurists were of the opinion that maqṭū' properties could not be bequeathed as waqfs. So how did that particular village begin first as an "assignment" and end up, several decades later, as a private waqf with a small group of family beneficiaries?
- 42 Or barā'a in Arabic, which literally translates as "innocence," or document, order, license; also a (...)
48Due to contradictory pieces of evidence from both parties throughout the hearing, the chronology of events was at best very fragmented. What is certain, however, is that the village and its lands were linked in some way to the mosque in Ḥimṣ, probably as a means to support it, so that the most logical solution to render such an arrangement permanent was to bequeath the village as waqf whose revenues would partly fund the mosque and partly pay the mīrī. That seems a logical and straightforward solution but, surprisingly, going through the details of the hearing makes it seem as if bequeathing a village to a waqf was an awfully complicated matter. The plaintiff's first claim was that an 1842 berāt42 stipulated that he administers, preaches, and teaches at the mosque; he then added that one of the waqf's "units (aqlām)" bequeathed especially for the mosque was the Muhājiriyyeh village. And then later, while responding to his opponent's allegations, he added that the founder of the waqf was his own grandfather, a crucial declaration which he avoided earlier, probably because he possessed no waqfiyya as evidence. Still following the line of evidence presented by the plaintiff: his final claim was that a 1794 firman "assigned" the land of Muhājiriyyeh in such a way that its revenues would serve the maintenance of the mosque, while fifty piasters should be paid as mīrī every year. But the plaintiff never made the full claim, as his opponent did, that the land was maqṭū'; yet, one wonders whether it was possible for a land to be "assigned" specifically to a mosque without having the status of maqṭū'; had it been a waqf by that time, its assignment to a mosque by a public firman would have been meaningless. Considering the textual order of the plaintiff's claims—the things he wanted to avoid at all cost came last—in all likelihood, the village was first assigned in 1794 as maqṭū'; that assignment was enough to render it legally ineligible for a change of status into a waqf, and it is quite probable that the property never became a waqf in the first place, but specific arrangements were worked out by the plaintiff's grandfather so that it functioned as if it was a waqf.
49The solution to the waqf's puzzle seems therefore in between the claims of both plaintiff and defendant. Thus, the plaintiff was pushing forward his claim of the village-as-waqf, ignoring altogether that it might have been maqṭū' because that possibility, based on Ḥanafī practice, would have rendered the waqf illegal. The defendant looked upon his nephew's claim as a threat since, not listed among the beneficiaries, his contractual rights with his tenants would have been illegal; so he argued that the village was first granted as maqṭū', whose grant was subsequently renewed (assignments were neither inheritable nor automatically renewable). Thus, it was indeed the defendant that first claimed that the village lands were maqṭū'; that gave him the right to lease them for five years between 1835-1840. But it was only later, when pressed by the majlis for more evidence, that he proclaimed that his right of possession goes back as early as 1804 and was based on an official document from Jazzār, which he unveiled to the majlis. He also brandished a firman certifying the status of the village lands as an assignment, but no specific date was mentioned. Obviously, the weakness of his arguments lies in the fact that nothing shows that the assignment had been renewed. It could therefore well be that, profiting from this interim vacuum, the family transferred the status of those lands into waqf, even though nothing shows that that was legally completed, if it took place, through the sharī'a courts. There was, however, one document furnished, surprisingly, by the defendant himself in which the alleged conditions of the founder were stated in the context of a litigation among the beneficiaries on the issue of the waqf's administration. But such documents do not necessarily establish either the existence of a waqf or of a waqfiyya for that matter, since the beneficiaries could have staged a fictitious litigation in court in order to confirm their rights and render them irrevocable. The Egyptian period might have also contributed to a state of confusion, and it is no coincidence that the only lease reported by both parties (since they both claimed that the tenant was theirs) took place during a period when mīrī assignments lost their source of legitimation.
50Since property was, like kinship, a medium that instituted social relations, primarily as status between individuals, families, and groups, waqfs were tailored from one generation to the next by the specific needs of the beneficiaries in question. In other words, beneficiaries reconstructed all the legal, economic, and linguistic bases of their properties based on their own needs and those of their generation. Proprietors, inheritors, and beneficiaries do this on a routine basis in all societies, but what characterized Ottoman societies was an ambiguous notion of property. Since property was not fully commodified, the status that it brought and its protection from confiscation or fragmentation were essential. Moreover, status was not merely an outcome of "owning" a property, but also a product of sultanic assignments and the like; that, in turn, was fostered by the image of the sultan as guardian of his ra'iyya's properties, and the ambiguities of the three basic land categories, in addition to the confusion between rent and tax.
51This directly translated into the procedures adopted by the courts to help in land litigations. What is striking about the Muhājiriyyeh case, which as noted previously, were it not for the lands granted as maqṭū', it could have been one of those regular sharī'a court cases, was the total absence of witnesses, of references to past opinions from the canon, and, above all, the lack of an authoritative and well ritualized language where the judge would refer to himself only in the third person. Indeed, the much less informal procès-verbal of the majlis even lacked the minute descriptions of properties, common to sharī'a courts, and the repetitious statements required by Ḥanafī practice simply to confirm that disputants, representatives, and witnesses said and meant what they uttered in court. Did the different style of the majlis therefore imply another form of adjudication from the one accustomed to in the sharī'a courts?
52The difference in style between majlis and courts was most obvious in the majlis' final decision. The three parts in the waqf's litigation played different roles and had no equivalent in the texts of the sharī'a courts. Thus, while a court's text consisted usually of a single texture that represented the judge's point of view—even though the judge was textually objectified in the third person—the waqf's litigation consisted of three parts, drafted separately over a one-month period: a preliminary petition was dated September 29, 1844; a procès-verbal was completed on October 6, 1844; and, finally, the plaintiff's final request and the majlis' ruling tool place on October 24, 1844. The petition prompted a hearing headed by Mālikī, the general administrator of awqāf, who, even though suggested that the case be reviewed by the higher authority of the dīwān, did not see his wish implemented; instead, the majlis went ahead with its final decision-making. As Mālikī noted, the hearings did not contribute to anything decisive, but the majlis for its part saw in an 1804 document issued by Jazzār enough evidence that the village was indeed a waqf.
53A sharī'a court might not have accepted that as enough data; its ruling would have typically been based on a combination of a couple of witnesses, opinion(s) from the canon, and a muftī's fatwā. This was because the idea of a just ruling was based on notions of fairness provided by a religiously rooted fiqh. Thus, when sharī'a texts portray disputants pleading their cases, their conflicting statements are typically left symmetrically distributed between opponents rather than within the disputing party itself: each party pleads in court for its own coherent view of the story, and such coherence turns crucial because judges had to choose between one of the two versions—it had to be either one or the other. Disputants thus narrated their own version of the story one after the other, plaintiffs first and defendants next, while following all restrictions imposed by the court procedures. Because no system of cross- or direct-examination was ever implemented, narratives were textually constructed into two distinct blocs, ready for the judge's final ruling. Even though at times judges did conduct some informal direct-examination with disputants and their witnesses, the texts nevertheless excluded such extraneous statements as if out of fear that they would have rendered a closing to the case problematic.
54It was precisely that kind of textual construction that the majlis avoided. For one thing, the legitimation process was different: notables instead of judges and jurists, and an administration of notables instead of a religiously backed judicial system. Majlis petitions thus ended up much less structured than regular court cases with far less predictable outcomes. And since politics was always at stake—primarily to ensure payments of the māl mīrī and the state's control over rent—rulings ought to be reconsidered in this light too; thus, favoring a nephew over his uncle in a waqf's dispute might not only be a question of unveiling the right documents at the right moment.
Which labor laws?
55Many of the majlis cases seem to be anxiously revolving around the crucial issue of the nature of labor legislation in the empire: Were the peasants legally protected against their landlords, creditors, state agents, and multazims, and which labor laws granted them any form of protection? Or was the adjudication of the majlis an indication that such a legislation did not effectively exist and was only a piecemeal effort? Majlis documents tend overall to point to an effort by that institution to define and protect some labor categories, without, however, any general outlook on the matter. And with Ḥanafism adhering to its old notions, "labor laws" were at best a piecemeal effort with more political than legal significance.
- 43 Majlis Wilāyet Dimashq, 84-85/120/25 Dhul-Ḥijja 1260 (January 5, 1845).
56In a petition that originated from the village of 'Udadah which belonged to the waqf of al-Ḥarmayn al-Sharīfayn [C 9-6],43 it was noted that, as customary, part of the produce was collected through the beneficiaries, while the other part paid to the mīrī. Even though the amounts—in kind—were kept the same over the years, the problem, as depicted by the villagers, was that in the last few years, the way those quantities were measured—or the mudd makyūl—had been altered; of course, that was a way to increase the dues to both waqf and mīrī. Still, according to the villagers, they were unable to pay their dues. The case was thus handled by Mālikī, the general administrator of the awqāf in Damascus, on behalf of the majlis.
57While reviewing the dues for the years 1258-60/1843-45, Mālikī noted that they were only partially paid, even though the revenues were measured following the unit of the "sealed mudd," as practiced elsewhere in the wilāyet. The majlis replied that knowing what the situation of the village was, and considering that it was paying its produce to both the waqf and mīrī, "it would therefore be preferable to accept [the villagers'] condition as it is, and as much as they can afford [of their revenues], so that nothing is lost either on the waqf or on the mīrī... and to help in the construction ['amār] of the village." Needless to say, the majlis was working for a compromise, avoiding either a solution by force or one that would request the villagers to submit all their late dues at any cost. Mālikī, however, was not that enthusiastic for that kind of solution, fearing that it would become a habit for the village of not paying their full dues, and might establish a precedent with other villages and localities. He also pointed out that their back dues were quite impressive to the point that it might hurt the Ḥaramayn waqf. Mālikī thus suggested to let them fully pay their dues for the current year, which was nearing towards its end, and to pledge the rest over several installments. In short, he opted for a no compromise solution.
- 44 Also: dhakhā'ir. Ibn 'Ābidīn once mentioned this term in a derogatory tone, noting that the dhakhā' (...)
- 45 The text left those "other things" unspecified.
58For its part, the majlis found that the waqf's warehouse was in need of barley for the current year (1844-45), and since the situation of the peasants was dire, they needed to be recalled in order to work with them on a possible arrangement concerning the dues of the last few years. Their elders came to negotiate and claimed that since the threshing season (waqt al-baydar), they gave enough barley to the waqf, and when the mīrī dues—referred to here as dhakhāyir44—were incessantly requested from them, they had to sell for this purpose enough quantities of barley (this might be an indication that the dhakhāyir consisted of cash payments). This has depleted the villagers to the point that they did not even have enough barley and wheat for their own consumption. In its final decision, the majlis recommended that, considering the sad state of the village, it was advisable not to push too hard on the villagers since "justice ['adāla] requires helping the ra'āyā by strengthening [bi-l-taqāwī] their produce with the other things,45 especially for a village in bad shape." So the majlis maintained its previous decision, namely that the villages should pay as much as they could for the current year (1260), while the rest, including late dues from the previous years, should be paid in installments.
- 46 Majlis Wilāyet Dimashq, 149-150/189/10 ṣafar 1261 (February 18, 1845).
- 47 Plural ḥawānīt; the origin and exact meaning of the term are unclear; the literal meaning could eit (...)
59Before looking at the case in more detail, let us glance first at another similar one which also dealt with the crucial triad of villagers, the mīrī, and the majlis [C 9-7]. In our second case, the petition was signed by Muḥammad Aghā Khayr, a privileged peasant (sharecropper) working under the special category of shaddād (pl. shaddādūn, or shaddādah).46 Special here means that this privileged category of sharecroppers kept more of the produce to itself than what the other peasants did on average, was given special assignments (for example, on lands that were hard to cultivate), and was granted specific arrangements on mīrī payments—precisely the subject of the current petition. Thus, in this case, the shaddād in question, even though was working on a parcel of land (referred to as ḥānūt)47 in the village of Jisrīn, benefited from a special arrangement with the fiscal authorities allowing him to pay his mīrī dues on his own, that is, separately from the rest of the peasants in the village. Why was that so? Simply because some sharecroppers produced much more than the average peasant: thus, out of the 44,531 piasters that the village as a whole owed to the mīrī each year, Khayr paid on his own 10,807 piasters—or one-fourth of the total produce for a single sharecropper. Since the landowner in this case was no one but the state itself, it was understandable why such special arrangements were promising: a better production for one, and the mīrī was paid promptly on time. To be sure, those privileged sharecroppers did not work solely on their own; they hired cheap labor from the villages they were associated with, so that their produce was not solely their own. Besides a better management of their production, their mode of payment of the mīrī resulted in better profits: "the māl [mīrī] specific to [Khayr's] ḥānūt, in the aforementioned village, is paid [yufraz] to the treasury on its own in three installments, and he himself guarantees its payment to the treasury without the intermediary role of the peasants [bilā wāṣiṭat al-fellāḥīn], so that he frees himself from the intrusion [mudākhalat] of those peasants." In short, a privileged sharecropper was someone working independently, with laborers he hired on his own, without any intervention from the rest of the village, and with his mīrī dues paid independently from the rest.
- 48 Even though the dhakhāyir and mubāya'ātseem to have been the two most common "taxes" imposed at the (...)
60That, however, did not happen without a few problems. As in any system, nothing functioned without few glitches. The purpose of the above petition was to primarily ensure that the privileges would be maintained: that the mīrī would not exceed the one-fourth of the produce of the total village, and that no "special taxes" would be imposed; but Khayr also requested that, as with all the other villagers, his installments be reduced to two only—one in wintertime and the other one in the summer. Reducing payments to two installments was of course an additional privilege on the top of all other ones, and the majlis added in its ruling that all what was requested from him "is that his behavior [sulūk] in the village be kept on a par with the other Damascene shaddādah, which do not pay any of the mubāya'āt, ṣakhr,and dūd,48 among others, but are limited to the dhakhāyir only because they practice their cultivation by hiring [peasants] [yashuddū filāḥatu-hum bi-l-ujra:they receive a salary for their labor?] and pay their own dhakhāyir to the treasury by hand [or: from their own hand]." Understanding dhakhāyir in this context requires first clearing out the ambiguity regarding "laboring with an ujra": Was that an indication that the sharecroppers' contract with the state-as-landowner implied receiving an ujra for the performed labor? And did that ujra consist in keeping part of the produce? In that case, the practice was close to what early Ḥanafīs understood by the kharāj muqāsama. But the sentence is still ambiguous because it could also mean that the sharecroppers relied on salaried labor to increase production.
- 49 See chapter 4 supra.
61Whatever that may be, the two cases (C 9-6 & 9-7), both of which were based on petitions requesting changes in the modes of payment of mīrī dues, bring forth to light the broader question of labor relations in the region: 1) Were the laborers legally perceived as working under contract?; and, 2) What kind of "protection" did a contract, if any, provide to the laborer? Both questions presuppose a set of complex legal, political, and philosophical (epistemological) arguments that fall beyond the present chapter. Ḥanafīs perceived a tenancy contract ('aqd ijāra) as the basis of any relationship between landowner and the tenant-farmer. It was a contract that gave the landowner the right to establish the property as formally his; it also divided the tax and rent between landowner and tenant on a fair basis: a rent was paid to the landowner in lieu of the tenant's right for using the land; while the landowner paid either the kharāj or 'ushr to the state. The point is that such a form of using someone's else land, laboring on it, and paying a rent for the right to use the land, was contractual. Late jurists, such as Ibn 'Ābidīn, were still in favor of such contractual settlements, in particular if the land was milk or waqf; but considering that the bulk of agrarian lands was mīrī, how could such a contractual form be effectively applied? Jurists of the Ottoman period not only avoided such questions directly, but also kept the timār and mīrī systems lingering in the dark.49
- 50 More accurately: sultanic ordinances.
- 51 Ibn 'Ābidīn, Radd, 4:188-89. The full passage was quoted earlier in our discussion on custom.
62The fact was that the majority of the peasants worked under extreme conditions of corvée labor—with no contracts of any kind. The amwāl amīriyya that the majlis documents referred to frequently were nothing but the rent that the peasants paid to the state; in addition all kinds of "taxes" and surtaxes—or should we say an "extra-rent"?—at the margin of the gross rent; those were so numerous, with so many names, that the majlis did in fact spend much of its time attempting to define them: dhakhā'ir, mubāya'āt, ṣakhr, dūd, etc. Some of those marginal rents attracted the attention of jurists, only to dismiss them altogether: "what has been agreed upon in the sultanic registers50 was based on the fact that only these amounts should have been collected from the farmers who [are entitled to] keep the rest [of their produce]. But the reality in our time is contrary to this since what is unjustly collected from them now, known as the dhakhā'ir and the like, is too much, even equal in some lands to the entire produce. This is extracted from them even when the land does not produce anything..."51 And Ibn 'Ābidīn then concluded: "It is therefore illegal to help the [tax-farmers] in their injustice and it should be looked upon as to what the lands can afford."
63Considering that Ibn 'Ābidīn did no more in his conclusion than reiterate a previous opinion of another Ottoman jurist, Khayr al-Dīn al-Ramlī, the position of those jurists was more moral than legal since it did not establish (or propose) much of a legal framework to deal with the issue. In other words, jurists kept all along a passive resistance to the Ottoman land tenure system, but fell short of suggesting any new contractual basis for labor relations. Since even the late Ḥanafīs had very little to propose—except perhaps to indirectly suggest that the old notions of 'ushr, kharāj, and ujra ought to be reconsidered—on which legislation did the majlis base himself in his rulings? Could it be that old sixteenth-century qānūnnāme and sporadic sultanic firmans served as the basis for the majālis decisions? Even though the current status of scholarship does not encourage reliable answers to such questions (much is needed still in the study of Ottoman law), suffice it to note that the majlis very rarely mentioned any legal texts (on one such occasion, it was related to a penal qānūnnāme), even though it did occasionally receive such texts and approved them article by article (for example, a text legislating the status of awqāf). This is not to suggest that the majlis acted in some undefined legal void, or that it acted solely on its own, with undisputed freedom.
64To understand how a political institution like the majlis related to law, it needs to be first acknowledged that the legislative ground on which it relied was quite limited. So how could such a sui generis institution function? If, as we proposed earlier, a judicial apparatus is not simply a set of laws, regulations, codes, or opinions to be applied, but is constructed as a totality of various levels of discursive practices, then the majālis of the Tanẓīmāt were one such level. In fact, the majlis experience shows that a decision-making process was not only associated with applying or interpreting a known rule, but also in creating discursive practices whenever the law was either silent or left much room to operate through. Consider, for example, the last majlis case we briefly dealt with thus far—that of the shaddāds (C 9-7). It is questionable whether any legal text seriously considered this professional category of sharecroppers either in delimiting them as group, or in defining their rights and privileges, or in determining their relationships and status vis-à-vis other peasants, whether professional or not. It is also doubtful whether the majlis relied upon broader legislative texts, such as various labor legislations, its conditions, or the protection of laborers from accidental misfortunes. But the question begs for an even broader one, at least larger than what the "rights" of the sharecroppers and peasants were, so as to include the populations—or "subjects"—of the empire as a whole: Was "society" as a whole protected by any form of political covenant?
65We have noted earlier, regarding the land issue, that the late Mamlūk and early Ottoman Ḥanafism represented the sultan as the guardian over his ra'iyya, and that the ra'iyya were in turn considered orphans in need of care. Besides the essential nature of such representations regarding land, their aim was essentially political since they represented the sultan in the role of a shepherd who enjoyed almost unlimited powers regarding the lives, security, and property of his empire's subjects. In effect, the security and well-being, not to mention the happiness, of those subjects was granted by the sultan, and the sole aim of his legislation was primarily to ensure a well-subdued ra'iyya. That was basically a one-way contract—from the sultan to his subjects. But unless we assume the traditional bay'a as the only evidence of reciprocity in this system, there are no signs of a genuine covenant. If covenant there was, it should have primarily been constructed within "society" itself—among its subjects as individuals—rather than as an order stemming from outside.
66One can, however, speak of a politics of adjudication, which, in turn, might be enlightening in terms of a broader polity between the imperial center, the regional nobilities and bureaucracies, and the provinces and their populations. We can assume, as we did, that adjudication was neither controlled from the "outside" through a subordination to a bureaucratic "center" whose legal powers would have imposed a procedural hierarchy among various judicial instances; neither was it internally controlled through a set of systematized or "axiomatized" structures of codified rules that would have ensured a deductive method of legal reasoning. The courts were thus overall left totally non-subordinate to any centralized communicative system. (Such an attempt of subordination came in effect much later, with the second reforms and their nizøāmī courts.)
67The juristic typology, inadequate as it might have been, nevertheless provided the courts with a broad problem-solving framework. All kinds of regional norms were thus both recognized and adjudicated through those courts and the activities of scholars associated with them. The consolidation of regional and kin-oriented norms was thus only done at the expense of what might have become higher abstract values promoted by the imperial center.
68When the majlis' texts kept repeating, at each juncture, that the well-being of the ra'āyā was their primary concern, they were no more than rehearsing that old guardianship discourse—one representing the sultan as a guardian-shepherd, with no clear notion as to what the ra'iyya's rights might have been. A representational modus operandi that would have pointed to the nature of such a representation was never satisfactorily worked out either (see Chapter 2 supra). If political domination amounted to a blunt one-way process, the judiciary was by and large a consensual enterprise centered around the "community." So the majlis decisions should be looked upon as actions with political and legal implications, but with no specific legislation. As the above cases show, the majlis had to confront first and foremost the crucial issue of rural labor: peasants were complaining about their own labor conditions; that of course included the price of labor and its value. The majlis, however, had to rule over labor conflicts while the great majority of the peasantry was not even linked to its masters (i.e., the state or any other party) by any form of labor contract. The common ground to all those petitions were the mīrī dues, either in cash or kind, but that was like bargaining the value of the "rent" in a contract in which the lessee/employee was left with no guarantees at all, and where his rights remained up in the air. That was one of the reasons why the sharī'a courts could not have possibly handled such cases: in the absence of well defined contracts and their correlative opinions and procedures, judges would have been unable to adjudicate. But the absence of a well defined framework for contracts and obligations in rural labor, however, did not seem to have obstructed the work of the majlis at all. To the contrary, the majlis was at home in much of its adjudication, and the reason could well be that it worked with the notion that politics came first, and then the law.
69In fact, when the majlis decided that the shaddād,who submitted his own petition (C 9-7), could pay the mīrī, like the rest of the villagers, in two installments; that his payments should be kept separate from the rest to avoid the wāsiṭaof the villagers; that the Damascene shaddādūn were subjected to the dhakhāyir only, thus forgoing all other supplementary taxes, all such measures were based more on a combination of political privileges and customary practices than on law as such. The majlis, from one case to the next, reestablished the matter-of-factness of political privileges and custom. Consider the preceding case (C 9-6), that of the waqf al-Ḥaramayn, and the majlis' ruling: it ruled that all mīrī dues should be paid on time for the current year only, while the unpaid dues of the preceding years could be delayed in several late installments. Thus, the decision to be lenient, and to avoid force (as with the Ḥarfūshes), was more political than legal: it primarily avoided placing more pressure on an already ruined locality; and peasants petitioned the majlis for such a leniency rather than for their "legal rights." For one thing, since they did not enjoy any of those rights, they were left with demands on a case-by-case basis.
70In fact, unlike the sharī'a courts which did arbitrate only by fitting each case into a broader formula so as to render the process of adjudication predictable, the majlis, which adjudged for the most part on a case-by-case basis and with a much richer array of litigations, exercised the privilege of having the unique power to disappoint the expectations of the disputants. To be sure, not all the majlis cases were "hard" with possible unexpected rulings; some were indeed based on a specific legislation (C 11-15 infra, which was based on an unspecified penal qānūnnāme), while others were quite predictable (a pattern adjusting to delays in mīrī installments). Generally speaking, legal texts helped in delimiting what a "case" ought to be all about, with such a framing helping to make the process of adjudication more conspicuous. The majority of the peasants, however, were not protected by any contracts or obligations; that in itself should have rendered the arbitration over their conflicts legally very difficult, if not impossible. The majlis, however, was not expected to adjudge on a legal basis only—that would have been impossible—even though its primary function was legal. It therefore withdrew, at times, into politics-as-usual, namely, maintaining all privileges and hierarchies, and ensuring the prime importance of the amwāl amīriyya, among others. In so doing, the majlis pushed aside and marginalized the legal side of some crucial hard cases; but in so doing, it simply postponed for the decades to come the major issue of a politically and legally protected society.
71To be sure, and in the absence of a contractual legal framework for the bulk of the peasantry, the majlis acted as a protective device. In the last two cases (C 9-6 & 9-7), the peasants of the waqf al-Ḥaramayn were given the opportunity to delay their unpaid dues of the previous years; the sharecropper in the other case was also allowed to pay his dues in two installments rather than three, in addition to receiving a recognition for his privileges (autonomous method of payment without intermediaries, less taxes, etc.). So the majlis protected some of the peasantry by lowering penalties, increasing the number of installments, granting privileges, or acknowledging older ones, among others, but it did also declare war against unruly multazims (the Ḥarfūshes, for example); all that was definitely decided on a case-by-case basis with more of a political than legal framework. In fact, with the majority of the peasantry under corvée labor, no bottom line was presumed anymore, while attempting to define "what should be left" with the peasants for their survival and production was the object of casual rulings which could hardly be perceived as modifying the status of that peasantry and its lands for that matter.
- 52 Majlis Wilāyet Dimashq, 24-25/46/4 Dhul-Qa'dah 1260 (November 15, 1844).
72Consider the example of a farm whose water canal turned out to be the incisive point in a case forwarded to the majlis [C 9-8]. According to the defterdār, the farm, located in the village of Mīda'ā, had to pay the mīrī a yearly lump sum (maqṭū') of 3,000 piasters, whether the villagers worked on it or not: in other words, maqṭū' arrangements were a form of contract irrespective of the produce; the land could have produced a lot, or very little, or nothing at all, and yet the lump sum would still have been the same under any circumstances. Overall, such arrangements were an indication of a declared privilege, under the assumption that the locality in question and its farmers must have been doing well, were probably better skilled than average, and for this deserved to have their special arrangements kept as they were (similar in some ways to iqṭā' assignments in that a lump sum was the major requirement).52
- 53 Referred to as qināyah instead of the more correct qanāh.
73That was the defeterdār's own version, but, according to the majlis, the peasants enjoyed full possession over the farm based on a lease (contract?) (bi-wajh al-ījār:for the purpose of leasing) from a certain Nūrī Bek, and when their lease ended in 1258/1842, and they ceased their labor (raf' yad) based on a document from his excellency Najīb Pasha, it was leased by another person who never made use of it and left it uncultivated. Because of this, the majlis was convinced that the peasants did not owe any mīrī for the last two years. However, one issue was left hanging—that of a water canal53 that irrigated the farm and whose source was independent of the water in the rest of the village. Indeed, water canals, like land, paid their own mīrī independently from the lands which they irrigated; and for Ḥanafīs, they followed the same land classifications of 'ushr and kharāj. But, in that case, it turned out that, because the land remained unlabored for two years, the water canal had been damaged. A committee, composed of a dozen elders from surrounding villages was formed, who checked the status of the canal, then confirmed that it was damaged.
- 54 Ibn 'Ābidīn pointed out that waqf rents, among others, were so low (since when?) that it was unfair (...)
74"Based on justice and the essence [uṣūl] of the Tanẓīmāt," the majlis cleared the peasants from any dues, and then commended that the farm be reassigned to them, as was the case before, because the new tenant did not make any use of it, and that was in itself "damaging to the mīrī." Clearly such generous decisions confirm what I described earlier as a certain protectionism towards some of the peasantry: it thus cleared the peasants from their regular yearly dues simply because the land was rented (or assigned?) to someone else; and, as with all previous cases, this one too—despite its simplicity—could not have in principle fallen within the jurisdiction of the sharī'a courts. It remains uncertain whether both farm and village were milk or mīrī. (Waqf had been ruled out because that was usually, though not always, the only category made explicit.) The farmers had rented the farm from Nūrī Bek; they were thus paying him an ujra,and, in addition, paid a mīrī lump sum of 3,000 piasters (defined either as maqṭū' or qasam) to the treasury; in other words, the system was an exact opposite to the ones favored by Ḥanafī jurists since the tenant-farmers had to pay on their own both rent and taxes.54 All these facts do suggest that the property was probably the property of Nūrī Bek, or even possibly that of another unknown landowner, with Nūrī Bek as its original lessee, then sublet in turn by the latter to the peasants for a higher rent. But if the property was not milk, then the only remaining alternative was that it belonged to the treasury, and assigned as maqṭū'to Nūrī Bek; the latter leased it to the peasants on an annual basis, while the required lump sum went directly to the treasury. This seems the most likely arrangement especially since, when the peasants closed their lease (described as raf' yad), an official order (buyuraldı, or amrnāme) was drafted: such a step would have been unthinkable had the land been milk. Moreover, the decision of the majlis, favoring a return of the peasants, would also have been unlikely for a privately owned land. Even though the rent payer in the last two years was an a'yān,the majlis favored reassigning the peasants in that same location so that mīrī dues could flow back again to the treasury.
75The case thus confirms the well established division between the jurisdictions of the majlis and that of the courts, a division that points once more to the political nature of the majlis' rulings—and in contrast to the courts, which limited themselves to private transactions, contracts, and litigations. All this should lead us to our main point: that every entity that was state property—in particular rural lands—was under a legal jurisdiction—primarily through the regional councils—dominated by political interests, whose rulings followed a different logic altogether from the sharī'a courts. References to canon law were unnecessary, and the state fiscal interests were granted a top priority; moreover, majlis cases did not follow the formula pattern of the sharī'a courts, and their outcome was less predictable. The implications of such a division are enormous. First, the system operated within a dividing line between private and public jurisdictions in a way very different from modern law: public jurisdiction (public law could hardly be used in this context) protected the happy few who received their privileges directly from the sultan, his bureaucracy, and local influential networks; in other words, it was not a domain for the public good. Second, "private communal law" was under the auspices of the sharī'a courts, the jurists, and muftīs, and was tied to a long tradition of recognition and adjudication between opinions. With that kind of separation, one can better understand the complete standing of irreverence that jurists traditionally kept towards sultanic ordinances and the entire domain of public jurisdiction. Jurists became even suspicious of judges because they were state appointees. Finally, third, the two jurisdictions did not connect much because they did not have much in common. In fact, even though they were not necessarily antagonistic to one another, they nevertheless operated quite differently, with distinct grammars, interests and arbitration procedures. Thus, while the courts imposed strict procedures and heavily relied on the jurists' opinions and muftīs' fatwās, the majālis and dīwāns were a much more informal and politicized work-in-progress. It is even doubtful whether they relied on any systematic legislation at all (sultanic legislation also aimed in principle the jurisdiction of the sharī'a courts).
When courts and councils met
76Cases do get a bit more interesting whenever the two jurisdictions of the courts and councils seem so close to one another: for example, situations involving minors, debts, or conflicts between beneficiaries, or property rehabilitation, are all a reminder of what the sharī'a courts did best. So how why did some of those cases fall within the majlis' jurisdiction? And how similar were they to the ones already encountered in the sharī'a courts?
- 55 There might have been an earlier entry in another non-conserved register.
- 56 In Arabic: muttaṣila lahā min abīhā, that was connected—"transferred"—to her from her father.
- 57 The combination of administrator-lessee was not that common in waqfs.
- 58 Majlis Wilāyet Dimashq, 81-82/114/23 Dhul-Ḥijja 1260 (January 3, 1845).
- 59 Those were properly speaking a "rent."
- 60 The majlis clarified that a peasant's tamattu' ("enjoy a right over something") consisted of the fo (...)
77The situation [C 9-9] of a waqf administrator, Zaynab bt. 'Alī Aghā al-Turjmān, from an a'yān family, came as an entry in the minutes of the majlis on January 3, 1845, when she first filed a petition that was followed shortly thereafter by a court document (ḥujja) that she submitted at the request of the majlis.55 The two events, petition and ḥujja,show how the two jurisdictions did articulate at times and needed each other's rulings. In fact, the administrator, who had "inherited"56 her position from her father over a waqf that was not theirs but to which she was also linked as a lessee,57 disclosed, during her first encounter with the majlis, three sets of documents: a firman, a buyuraldı (a form of ordinance), and the ḥujja—all three were supposed to provide evidence for her case. However, copies of the originals were not included in the majlis minutes, hence all reference to those texts necessarily relies upon the council's own presentation. The administrator had originally requested that a group of ten farmers, from a village in Ḥūrān, included in the waqf (whose properties did not belong either to the administrator or her family), be exempted from the regular state taxes.58 In the buyuraldı, an argument was put forward that the village be exempted from all payments, dues, and taxes, based on several decrees from past wālīs; a petition was then forwared to the Sublime Porte, explaining how the villagers that occupied the land only a few years ago, had left, and lately a group of ten households (buyūt) had returned. However, once those villagers moved back, they were requested to pay taxes (amwāl).59 A reply came from the Porte specifying that as long as those villagers were not landowners (aṣḥāb amlāk wa arāḍī) and neither possessed nor enjoyed rights over the manāfi' (laysa lahum wajh tamattu'),60 they should therefore not be taxed on anything. The buyuraldı concluded with a note that since the non-ownership of the ten peasants had been confirmed, they should then be cleared of all taxes. The majlis favorably approved that decision. The question then arises as to what made those peasants so unique. Considering that practically all peasants that signed petitions to the majlis did not own their lands, but only enjoyed a taṣarruf-right, and even such a right was left implicit with no clearly fixed contractual framework, why did they have to submit for the most part large rents—which the texts euphemistically referred to as "taxes"—to the treasury? And why were the peasants in our last case (C 9-8) exonerated from such duties? Who paid the "taxes" then: Was it the administrator herself? Most probably, the waqf in question did not pay any "taxes" in toto, while the administrator paid herself her rent to the beneficiaries. In principle, among Ḥanafīs, the tax was indexed on the rent received by the beneficiaries and was paid by the latter. But in Ottoman times, waqfs having suffered from exceedingly low rents, "taxes" were de facto either the peasantry's burden, or at best partially paid by the lessee. So, in this last case, the exoneration must be perceived as a political privilege: the administrator-lessee used and abused of her status so that her peasants could stop all tax-payments; she would then share their produce based on some kind of sharecropping arrangement (not revealed in the documentation). In short, in all likelihood, by securing that her peasants be exonerated from taxes, the administrator-lessee received a better share of the produce for herself.
- 61 Majlis Wilāyet Dimashq, 97/132/5 Muḥarram 1261 (January 14, 1845). The scribe added "number 88" to (...)
78As to the court's ḥujja,a copy was passed to the majlis less than two weeks after the original petition.61 It basically consisted of a sharī'a court lawsuit in which the plaintiff was a certain Ismā'īl Aghā b. 'Abdul-Fattāḥ Efendi al-Ja'farī, in addition to representing himself, was also the representative of his own sister and his nephew's son (a minor): all of them had in common, as beneficiaries, their grandfather's waqf. On the side of the defense was Zaynab al-Turjmān herself and her representative. The plaintiff began his case with a description of the waqf and its location, its lands and farm (all localized, as required by sharī'a law, in terms of their surrounding properties). He then pointed out that "since the land of the village, its farm, and their waters are all included in the waqf, the constructed areas and the building [process], the two sections [duffatay] of the village and farm should therefore all be included [in the waqf]; but the client of the defendant's representative illegally opposes [their inclusion] in the waqf."
- 62 Tawājir,from ujra, was one of those commonly used colloquial words in the courts.
79In his reply, the defendant's representative acknowledged the validity of the waqf as described by his opponent, but he denied that all things "added" to the properties were owned by the waqf; he rather claimed that they were solely owned by his client. He thus pointed out that the plaintiff, his sister, and his deceased nephew, all gave their formal consent to his client "so that she would be able to build, rehabilitate, and proceed in the construction of the two sections of the village and farm; that whatever she builds will be her own property. That was confirmed in the tenancy contract [ḥujjat al-tawājir]62 and the permission [udhn] drafted in a sharī'a court, which included the tenancy contract and the approval to build and construct—an approval limited to the administrators of the waqf. All that was fully approved by a Shāfi'ī judge, and then confirmed by a [Ḥanafī] deputy judge in Damascus in 1252 [1836]." Then followed the usual court rituals of denying, requesting evidence, and finally accepting the defendant's claim. But when the plaintiff requested from his opponent to end (qal') the tenancy contract, the judge reminded him that the representative's client did not grant him the privilege to end the contract, and that leaving things as they were was beneficial to the waqf because of the "fair rent (ujrat al-mithl)" that was paid to the beneficiaries.
80The ḥujjathus established that what was "added" to the original properties (including the mashadd maskeh) were the administrator's own property, and hence neither belonged to the waqf itself nor to the peasants for that matter. This case thus originated in the sharī'a courts, and consisted of a private contractbetween the beneficiaries of a waqf and a tenant, who apparently by virtue of the contract (whose text was not included among the majlis' documents) was also appointed administrator. Such an arrangement was indeed a bit strange since appointing an administrator that was already a lessee either considerably empowers that person, or else could be the source of a conflict of interest. The two documents included as evidence among the minutes of the majlis do not specify the period for that arrangement—normally for three years only, and subject to renewal after consent of both parties—but the approval of the original tenancy contract by a Shāfi'ī judge does suggest that the legally accepted three-year period was extended (no time framework was specified in our two documents). The contract was to be followed by a private litigation, which, once more, established the tenant-administrator's rights and privileges. Both the contract and litigation, being as they were between two private parties, were kept within the confines of the sharī'a courts.
81Even though that remained unspecified in the two documents (but other texts might have existed, which were not divulged at the majlis), the māl mīrī to be paid to the treasury as "tax" should have nevertheless been cleared by the tenant herself: that at least became the customary norm, according to Ibn 'Ābidīn, because the rents were too low—a solution discouraged by the jurists, but which they had to accept on a de facto basis. In practice, however, the mīrī ended up being submitted by the peasants working for the tenant (the peasants were, in turn, the administrator's tenants). But apparently, the administrator, empowered by her ashrāf origins and status, managed a total exemption from the māl mīrī—a way to keep as much of the revenues in her own pocket—so that neither her nor her peasants would pay any mīrī. That was the point of the whole case: granting such privileges—the tax exemption—was a political matter (as were iqṭā'assignments, among others), and the case naturally spun out of the control of the sharī'a courts and ended up at the majlis—an institution that granted privileges. The majlis did nothing more but compare texts in order to confirm the peasants' exemption from taxes. That did not require that complex a ruling.
- 63 On the marṣad, see supra Chapter 3.
82Besides showing the intricacies between the two jurisdictions—the courts and the majlis—the case points to contractual forms already encountered earlier. In fact, the privileges granted to the administrator in the original tenancy contract were like a legally approved marṣad pushed to its extreme.63 As a reminder, the marṣadconsisted of additions to the original property, not agreed upon in the tenancy contract, but which the tenant later acknowledged as having made "for the sole benefit of the waqf." In order to legalize those additions (usually rehabilitations of old properties), the waqf's administrator files a lawsuit in court against his tenant, denying that he ever approved any alterations to the property. In his response, the tenant-defendant would specify the sum that she had invested in the property, which later, once a ruling comes in her favor, would become the marṣad that the waqf owes to the tenant. The waqf should therefore refund the tenant her marṣad prior to closing any contract. In short, the tenant would secure a long lease that would go far beyond the legally accepted three years, while a generation of beneficiaries would receive a quasi-deposit, if not in cash then at least in the tenant's investment itself.
83In the above case, the marṣadwas already secured in the original tenancy contract. In fact, the text explicitly recognized the administrator-tenant's right to build, construct, renovate, and restore damaged constructions; in addition, she would also own the mashadd maskeh of the lands. All of them were investments that "belonged"—in the form of a deposit—to the tenant rather than to the waqf, and even though they were not legally a marṣadper se (since even though the latter was a deposit in the form of an investment, the property and its added value still belonged to the waqf, and the marṣadwas technically only a form of "debt"), nevertheless came close to it since the administrator ensured her tenancy rights for a long period of time: the beneficiaries will have to reimburse her all those extras in order to free the waqf.
- 64 On the notion of "fair rent," see Chapter 3.
- 65 See Chapter 1.
84The whole arrangement was therefore legalized on the basis that the tenant was paying a "fair rent," that is, "fair" to the waqf. But since "rent" in that system was neither linked to labor, wage, price, nor tax, there was no way its "real value" could be determined. The notion of "fair rent" was therefore a construction that pointed to the consensual side of the tenancy contract: the price was just simply because both parties accepted it.64 Thus, ironically, the notion of "fair rent" became a tool to conceal what was "unfair"—namely, that rents were too low precisely because the mīrī was exacerbating and unjust. Ḥanafī jurists argued that such unfair practices had to be accepted on the de facto norm of custom.65 Our last case (C 9-9) was therefore, on the one hand, typical in that the administrator-tenant secured a low "fair rent" in return for an investment-deposit (usually defined as marṣad), but, on the other hand, was uncommon in that the roles of administrator and lessee coalesced into one, thus giving the administrator supreme power, while her peasants were exempted from the mīrī. Needless to say, the administrator worked out for herself the best deal possible. However, that would have been impossible without that extra step—the majlis' arbitration and its approval of the sultanic and similar official "orders"—which the sharī'a courts could not have possibly secured for her on their own. The case, which moved back and forth between a sharī'a court and the regional council in Damascus, points clearly to the borderline between the two jurisdictions. First, the majlis was indeed an "extension" to the jurisdiction of the sharī'a courts in the sense that it could bypass all the latter's limitations. Second, the majlis had to acknowledge Ḥanafī practice and its applicability within the sphere of the sharī'a courts. But the majlis' own source of legislation, however, was far from clear. To be sure, the basis for its adjudication was a broad spectrum of "sultanic legislation," but that was an even more confusing and piecemeal set of "codes" than Ḥanafism itself.
85The confusing nature of the majlis' arbitration is even more visible in a few of the "hard" cases analyzed in this chapter, which points to another essential aspect—that of the borderline between "politics" and the "law." Destined to be primarily a "legal extension" to the sharī'a courts, the majlis only effectively operated—in particular when confronted with non-routinized hard cases—while transitioning from the legal to the political.
86The Ottoman bureaucracy, besides adopting Ḥanafism as its main tradition, had also acknowledged the validity of both other Muslim and non-Muslim legal traditions that were crucial for the perseverance of autonomous socials groups, or the millets. But that, in turn, proved insufficient due to the limitations inherent in Ḥanafism itself, and a parallel system of legislation and adjudication had to be created, mainly in the form of qānūnnāme. Ḥanafism had to validate and integrate within its own corpus a number of regionally efficient customary practices, but their integration, however, did not contribute to any structural change within that system. To be sure, even though such intricate arrangements did establish, with significant time and regional variations, an overall bureaucratic efficiency that went well with the nature of these societies, its failure to create a more coherent, rational, and valid system did exact a heavy toll on their historical progress. By the nineteenth century, the number of self-correcting practices, or contracts simulated as fictitious litigations, and the de facto accepted customary practices, not to mention a growing number of hastily dispatched sultanic edicts, all grew to such proportions that a structural effort to rethink the system globally became more than necessary. The Majalla was part of such an effort, and even though it established itself as a quasi-"civil code," much more was needed, and the bulk of legal reforms were promulgated in extremis as copies of the French Napoleonic codes. In short, the system did not reform from within, but had rather implemented upon itself a totally different rationale to what was considered legal was in those societies.
87Covering an episode from an early majlis of the Tanẓīmāt reveals a legal system that, in its last decade or so, prior to major western spirited reforms that totally revamped it, trying at the same time to reform itself while still applying old obsolete notions which, in the final analysis, brought the system down. If we assume that the primary aim of the institutionalization of the regional councils—at least of the early reforms (the 1840s)—was to create a parallel system of adjudication to the sharī'a courts due to the latter's intrinsic limitations, then the majālis were in turn hampered by precisely the same type of problems that effectively limited Ḥanafism. To begin with, the latter, despite all claims for "universality" and its ability to accommodate many Muslim and non-Muslim "marginal communities," remained nevertheless for the most part a "community law" taking care of private disputes within a locality. It thus fell short of providing a multi-ethnic empire with a well grounded "public judiciary" that would have accelerated the changing socio-economic practices, on the one hand, and created alternative procedures for such areas as land, rent, taxation, torts and crimes, on the other. Hence, the necessity of the regional councils. The latter, however, having mostly adjudicated on less clearly defined legislative grounds, had to politicize many of their "hard" cases. To be sure, since the land tenure system of the empire consisted of a political distribution of revenues, a separation of powers between the judicial and political was not a purely legal matter. Ottoman societies, in all their variations, had eventually to struggle, beginning with the second half of the nineteenth century, with the dual process of liberalizing their economies and democratizing politics. The judiciary, in turn, becomes an effective system of arbitration the more it frees itself from politics.
1 Currently located in northeast Lebanon.
2 Sharaf ad-Dīn Mūsa b. Yūsuf al-Anṣārī, Nuzhat al-khāṭir wa-bahjat al-nāẓir, 2 vols. (Damascus: Wizārat al-Thaqāfa, 1991), 1:168-69.
3 Anṣārī, Nuzhat, editor's introduction, 1:18-19.
4 See Chapter 10 infra.
5 In many ways, like the prise de la Bastille: an unnecessary event, considering that the Bastille was already empty and lost its political significance; but, on the other hand, a necessary symbolic event that came to epitomize the new spirit of the French Revolution.
6 It is unclear why only a single volume has survived from all the minutes of the majālis that succeeded one another throughout the Tanẓīmāt.
7 More correctly: maḥṣūl.
8 Majlis Wilāyet Dimashq, 67/98/7 Dhul-Ḥijja 1260 (December 18, 1844). Page and document numbers have been added to the original, and even though the new numbering of documents does not make much sense (a petition and its reply are numbered with different subsequent numbers), I kept them to facilitate document search.
9 This seems to have been a common local word, probably meaning "claims" or "demands" (from the verb raja'a, to return, come back).
10 The role and function of that dīwān is unclear.
11 Majlis Wilāyet Dimashq, 69/99/8 Dhul-Ḥijja 1260 (December 19, 1844).
12 Majlis Wilāyet Dimashq, 69/99/14 Dhul-Ḥijja 1260 (December 25, 1844). The document should have been numbered separately from the previous one since those were two different events.
13 An awkward expression, probably meaning "appoint the right person for the job."
14 More correctly: munghamisīn.
15 Ma'āshāt,literally salaries, is closer here to "revenues." Those might have consisted of special tax units that were assigned as maqṭū' to the Ḥarfūshes for their services to the state. It was not in the custom of the Ottoman state to give monthly cash "salaries."
16 "Impôt foncier," equivalent to 4/1000 of the value of lands subjected to the 'ushr.
17 A term commonly attributed to the Shī'īs by the Ottomans. It obviously referred to the Shī'īs' rejection of most caliphal authorities, beginning with the first caliph, Abū Bakr.
18 Original French (Latin) name: Krak des Chevaliers, one of the most impressive castles constructed by the Crusades. Clearly, the majlis' concern was that the locality of al-Ḥuṣn, with a majority of Christians, would eventually follow the same path as the Ḥarfūshes.
19 Majlis Wilāyet Dimashq, 69-70/99/14 Dhul-Ḥijja 1260 (December 25, 1844), a continuation of the previous document.
20 Majlis Wilāyet Dimashq, 110-111/149/15 Muḥarram 1261 (January 24, 1845).
21 Seems to have been a colloquial word from the root ḍṭa, to control, adjust, regulate and check.
22 Also: khatl, deceit, trickery, chicanery and fraud.
23 Majlis Wilāyet Dimashq, 52/74/25 Dhul-Qa'dah 1260 (December 6, 1844).
24 Frank E. Vogel and Samuel L. Hayes III, Islamic Law and Finance (The Hague: Kluwer Law International, 1998), 7.
25 A colloquial word, probably originating from ḍṭa, to check.
26 See infra Chapter 10 on sultanic legislation.
27 Majlis Wilāyet Dimashq, 33/54/10 Dhul-Qi'dah 1260 (November 21, 1844).
28 The expression was inaccurate because what was denoted were the inhabitants of the villages in the Damascus region, see below.
29 Probably an abbreviation of the Turkish çiftlik, or mazra'a, farm.
30 Probably the land-tax, usually referred to as verghi, paid in cash, and assessed on the basis of the value of the land.
31 This seems the part of the mīrī paid in kind.
32 It is not clear what those ta'shīrāt shar'iyyah referred to. The 'ushr tax was, in the classical Ḥanafī system, a land-tax representing roughly one-tenth of the produce; it also implied that the property was "owned" by its landlord who paid the 'ushr to the treasury. In the context of the Ottoman land tenure system, with its massive state ownership of rural lands, the 'ushr was usually referred to in its plural variations, either as a'shār or ta'shīrāt. When the land was privately owned, it paid one-tenth of its produce to the treasury as tax; but what if the land was mīrī? What would the meaning of 'ushr be in that context? Surprisingly, court and majālis documents (in addition to consular reports) often mention a'shār "taxes" in the context of mīrī lands (or waqf for that matter): it could well be that the a'shār were nothing but the amwāl amīriyya,and the term was kept as such either out of custom or because the peasants did effectively pay no more than one-tenth of their produce as mīrī, which is unlikely considering all the complaints received by the Damascus majlis alone. Thus, for example, for the year 1296/1880-81, the total fiscal revenues for the sanjāq of Damascus amounted to 15,751,649 piasters, out of which 7,615,069 piasters were collected as a'shār and 5,567,575 piasters as verghi, or land-tax; clearly, in that case, the a'shār were synonymous with the amwāl amīriyya, and amounted to much more than the classical one-tenth, thus suggesting an adaptation of obsolete legal terms to contemporary situations; however, the rationale behind the terminological choices for tax and rent is far from clear (Ghazzal, L'économie politique, 98). Since when was there a simultaneous land-tax (verghi) in addition to a "tax" on the produce, the 'ushr? Was that an outcome of the 1858 Land Code? Or was the land-tax, following the classical Ḥanafī tradition, solely imposed on privately owned lands?
33 Written wirkū in Arabic, or the land-tax, based on the value of the land.
34 Majlis Wilāyet Dimashq, 100/135/5 Muḥarram 1261 (January 14, 1845).
35 See Andrew Shryock, Nationalism and the Genealogical Imagination (University of California Press).
36 Majlis Wilāyet Dimashq, 4/13/11 Shawwāl 1260 (October 24, 1844).
37 The reference to maqṭū', "assignment," might imply that the property was not the defendant's own but that the sultan assigned it to him in order to collect its mīrī. The difference between milk and maqṭū' properties was that the latter could neither be sold, inherited, nor bequeathed as waqf since they formally were state properties. They also differed from the other regular mīrī properties in that they were life-terms assignments.
38 See chapter 3 on contracts for a discussion of those and related terms. For our purposes here, it is enough to know that both implied exclusive "rights of cultivation," which like the khulū, could be purchased or transferred by tenants.
39 This might be an indication that Salīm Bek was an Egyptian who moved to the area with or after the Egyptian troops in 1832 and left with them in 1840.
40 No indication was provided as to what the dīwān al-'ālīmight have been. It does seem, however, that it was one of those councils—probably headed by the wālī himself—whose combined political and judiciary powers were at a higher level than all the Tanẓīmāt majālis.
41 The plaintiff's final request and the majlis' reply are both on p. 6 of the minutes, and both numbered (recently) as document 14, same date as the procès-verbal, October 24, 1844. A document was issued in response to the plaintiff's final demand confirming the status of the waqf; the text, however, was not attached to the minutes of the majlis.
42 Or barā'a in Arabic, which literally translates as "innocence," or document, order, license; also as some kind of sultanic bull.
43 Majlis Wilāyet Dimashq, 84-85/120/25 Dhul-Ḥijja 1260 (January 5, 1845).
44 Also: dhakhā'ir. Ibn 'Ābidīn once mentioned this term in a derogatory tone, noting that the dhakhā'ir extracted by force from the peasantry were illegal and surpassed by far what, in classical Ḥanafī literature, he referred to as the kharāj muqāsama; otherwise, he made no effort to clarify the meaning of the term nor its use within the mīrī system (no chapter at any rate was devoted to the mīrī in the entire Radd). From a linguistic point of view, the origin of dhakhāyir in official Arabic could well be dhakhīra (pl. dhukhur, supplies, stores, provisions); thus, dhakhāyir seems nothing but a colloquial plural to dhakhīra,and probably referred to one of those parallel mīrī dues, such as mubāya'a, and apparently imposed in addition to the regular a'shār and amwāl amīriyya.
45 The text left those "other things" unspecified.
46 Majlis Wilāyet Dimashq, 149-150/189/10 ṣafar 1261 (February 18, 1845).
47 Plural ḥawānīt; the origin and exact meaning of the term are unclear; the literal meaning could either refer to a store, shop, or a tavern.
48 Even though the dhakhāyir and mubāya'ātseem to have been the two most common "taxes" imposed at the margin of the mīrī, their exact nature, together with the other "taxes," is still unknown.
49 See chapter 4 supra.
50 More accurately: sultanic ordinances.
51 Ibn 'Ābidīn, Radd, 4:188-89. The full passage was quoted earlier in our discussion on custom.
52 Majlis Wilāyet Dimashq, 24-25/46/4 Dhul-Qa'dah 1260 (November 15, 1844).
53 Referred to as qināyah instead of the more correct qanāh.
54 Ibn 'Ābidīn pointed out that waqf rents, among others, were so low (since when?) that it was unfair to request the payment of taxes from their beneficiaries (or landowners for that matter). The same seems to have applied for milk properties.
55 There might have been an earlier entry in another non-conserved register.
56 In Arabic: muttaṣila lahā min abīhā, that was connected—"transferred"—to her from her father.
57 The combination of administrator-lessee was not that common in waqfs.
58 Majlis Wilāyet Dimashq, 81-82/114/23 Dhul-Ḥijja 1260 (January 3, 1845).
59 Those were properly speaking a "rent."
60 The majlis clarified that a peasant's tamattu' ("enjoy a right over something") consisted of the following: mashadd maskeh, plantations (ghirās), and buildings (binā'); all could have been sold separately from the land and were considered under sharī'a law as tamlīk manāfi'.
61 Majlis Wilāyet Dimashq, 97/132/5 Muḥarram 1261 (January 14, 1845). The scribe added "number 88" to the title of the ḥ, but it is not clear what the number refers to. The court's document seems to be quoted verbatim from the original.
62 Tawājir,from ujra, was one of those commonly used colloquial words in the courts.
63 On the marṣad, see supra Chapter 3.
64 On the notion of "fair rent," see Chapter 3.
65 See Chapter 1.
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