Ottoman and English Property Rights: Conditionality and Power

11.1.1 Private Property and Conditional State Control: Hanafi vs. Ottoman Land Law

Assumptions about Ottoman property rights being absent or weak stem from the belief that either Islamic law provided few or no protections to property rights or that the customary Ottoman tradition ascribed land ownership to the state.

Ottomans mainly followed the Hanafi school, one of the four ortho­dox schools of law in Muslim jurisprudence.^[1179] Far from rejecting prop­erty rights, sale contracts under Hanafi law made property private and outside the reach of the state - hence strong sultanic opposition to it.^[1180] Hanafi law also imposed partible inheritance, thus securing the rights of all heirs of a property owner following rules of priority^[1181] - a far more equitable arrangement than the primogeniture that was obligatory in England until 1925.^[1182] If little land was held privately, it was partly because property holders wished to avoid such religious, not state, restrictions, opting for vakιfs instead, examined below.^[1183] Though pri­vate holdings (most of them urban) required a grant from the sultan, as did vakιfs, tιmars, and peasant land,^[1184] this differed little from English conditions, as we will see.

Property rights, however, are assumed to be absent in the Ottoman Empire mainly because most land (about 87 percent in 1528) was held under a customary regime known as miri land.²³ This is normally interpreted as “the sultan’s” land,^[1185] suggesting personal ownership. However, when this regime acquired official legal justification by the highest judicial official of the empire, Ebu’s-su'ud (c.1490-1574),^[1186] as the Ottomanist Colin Imber has shown in his major study, the terms were far more radical than in England.

A similarly qualified picture about the Ottoman property regime emerges from considering a basic military office, the tιmar: I argue that since it was a bureaucratic office, it cannot inform us about property rights.

11.1.2 Western Patrimonial Fiefs and Ottoman Bureaucratic Offices,

the Timars

Classic and revisionist accounts of the Ottoman Empire focus on the tιmar to exemplify the contrast with Western conditions.^[1193] Timars were the smallest category of land grants awarded to members of the Ottoman military class, known as sipahis.^[1194] They were conditional upon the performance of obligations to the ruler, as European military fiefs were, and this has supported the view the two offices were comparable.

Western fiefs, indeed, granted property rights over land and over peas­ants living on the land, under a hierarchical relationship known as lordship.^[1196]5 The English crown’s tenants-in-chief, for instance, originally acquired these rights of lordship over land and people in exchange for military service and exercised them through seigniorial courts.^[1197] Local political and judicial power was originally fused (though in England royal courts eventually supplanted local courts). However, rewarding service with jurisdiction over people and land was how Max Weber defined estate-type patrimonialism, one of the organizational types he claimed Western states had to progressively eliminate for rational, modern forms of bureaucracy to emerge.^[1198] Yet these traits are emblematic of the early English system’s strong patrimonial character, as we have seen, and as Weber passingly noted.^[1199] Timar-holders, by contrast, did not have lord­ship rights over land or over peasants living on the land.^[1200] Instead, service was rewarded with land revenues.^[1201] Timars were thus not fiefs nor were they deficient as property rights; they were a different thing, an office, as Inalcik stressed.⁴¹

English fiefs were also heritable; they could succeed from father to son from the eleventh century and inheritance was established by the thirteenth.⁴² Although secure succession is typically seen as a victory of property rights, here it was another victory for patrimonialism: it perpetu­ated rights over people.

The same concern about land concentration also precluded the alien­ation of tιmars. In England, fiefs were alienated since the thirteenth cen­tury. Once again, however, any rights of alienation over a bureaucratic office would imply greater patrimonialism and venality - a trait that ser­iously undermined some Western cases.^[1206] When we consider Ottoman peasant rights to alienate below, we will note rights similar to England at that more appropriate level.

The Ottoman system, therefore, like the English one, was not arbitrary but rule-governed: lack of representative institutions did not mean ruler restraints were absent. Even when the sultan had the right to revoke a particular tιmar, he was bound by custom and imperial law to provide its holder with a replacement.^[1207] The sultan could also revoke a tιmar when a holder died without heirs (musadara) or fell from grace.^[1208] But this resembles the English royal prerogative of escheats, which applied under the same conditions,^[1209] and of forfeitures, which occurred when a tenant “committed] a theft, betray[ed] his lord,...

Yet, rather than emphasizing Ottoman “modernity” on this dimension, some simply conclude that the Ottoman and Western versions of feudal­ism were different.⁵⁴ But the difference is usually located in the stereo­typical polarity between a societally strong West and societally weak East, a contrast between the decentralized character of European feudal monarchies and the “strong” Ottoman state.^[1212] This, however, assumes the French and Continental model of feudalism, where central authority was indeed weak. It omits the more relevant comparison with English feudalism, which, as argued throughout this book, was highly centralized and very effectively imposed, especially after the late twelfth century. As Marc Bloch noted, “in certain respects, no state was more completely feudal,”^[1213] at least until the fifteenth century. The Weberian perception of Ottoman patrimonialism fits better the seventeenth-century changes to this regime when the tιmar system largely lapsed and regional power­holders, like the a'yans, concentrated land, military, and fiscal powers.^[1214]

These observations suggest that patrimonial and bureaucratic practices have complex interactions with state capacity, as noted in Chapter 3. The Ottoman case before the seventeenth century indicates that bureaucratic institutions may be employed when ruler capacity is relatively weak but consolidating: the more a ruler faces intractable social forces, e.g. hetero­geneous communities, the more rational structures are applied to exert power. Sultans actively fostered bureaucracy by co-opting impressively large groups of scholars, as Ottomanists Atcil and Sahin have shown.^[1215] Russian and French early modern administrations present a similar bur­eaucratic orientation.

In any case, the comparison of fiefs and tιmars supports the view of the Ottomanist Haim Gerber that Ottoman society as a whole was “closer to th[e] bureaucratic ideal-type.”^[1217] So an “advanced” bureaucratic trait - office rewarded with revenue not lordship - has been assumed to be a deficiency in the Ottoman case, a “failure” to develop property rights.^[1218] And a patrimonial practice - rights over people in return for state service - is taken to show European respect for property rights.

Fiefs and tιmars, however, were assigned to upper social groups. Property rights lower down the social scale must also be considered.

Here, similarities with the English system are striking, with the Ottoman system even showing marginally stronger rights on some dimensions. If weakness was observed, it was in the enforcement of rights (i.e. due to a weak state capacity) not in their definition or legal status.

11.1.3 Peasant Rights to Land: The Common Frame of Tenure

A long tradition of Marxist scholarship popularized the position that community ownership of land underlay the Asiatic mode of production, where peasants were deprived of any ownership.^[1219] Modern social science, as we’ve noted, has inherited the view that secure individual property rights are distinctive to the West. However, peasant rights in the early period of the Ottoman Empire (from at least the fourteenth century) had key similarities to English ones. In neither system could a person own land absolutely; they only had full rights to sell, buy, or rent objects above land, such as trees, animals, or plate.^[1220] Ottoman law also permitted house sales, but English common law did not, considering them to be part of land except if they stood on pattens.^[1221] On this dimension, the Ottoman rules seem more inclusive. Also, just as in England, much village land could be under common pasturage.^[1222]

Rights were instead tenurial, not based on ownership, throughout the social scale. Although English theorists by the thirteenth century employed Roman terms such as dominium (which meant either lordship or ownership) and proprietas (ownership),^[1223] the main concern of the law was with possession (seisin) and rights.^[1224] Moreover, a tenant had rights only “because he and his land owe[d] services to the king or to some other lord.”^[1225] Similarly, the Ottoman state preserved ultimate authority over land from at least the 1300s, the dominium eminens of Roman law (called raqaba or rikab). The right was established by conquest and it separated ownership from use. The “ownership of the substance (raqaba)” was distinguished from “ownership of the usufruct (tasarruf)... The ruler in effect owns the substance of the land, while the occupants own the benefits. This was a fiction,” but it defined the law of tenure.⁶⁹ As mentioned above, the real owner was not the sultan, but the Treasury on behalf of the people. In practice, land use was granted to individuals in ways that did not fundamentally differ from English conditions.

The English common law also gave use rights, though this varied by class. About half the population before the fourteenth century were unfree peasants, known as villeins.^[1226] Though not slaves, they were serfs bonded to a lord on a hereditary basis, attached to the land, and restricted in movement. They were allotted land for cultivation in exchange for service to the lord, which was uncertain and had only local protections.^[1227] They could only appeal to manorial courts and thus lacked protection in state courts, as the villein held land “at will” of the lord who ran the court.^{[1228] [1229] [1230]}

Ottoman peasants were also distinct from slaves (kul).⁷3 Theyheld land under two types of contract. One could be “freely concluded” and involved only a lump sum rent but no taxes (mukataalu lands). The other denoted subjugated status (due to being non-Muslim) but simply entailed service to the state and the sipahi and the obligation to pay taxes (tapulu land). The key here is that property rights accorded even to subjugated peasants were in some respects stronger than those of villeins and equivalent to those granted to the higher ranks of free peasants in the English system. Whilst English villeins depended on the local lord, the reaya acquired tapulu land through a sales contract with a state agent, which was registered in court and certified by a kadi judge. The reaya could thus enforce their contract in a state court, in full accordance with the Shariⁱa.¹⁴ Assuming regular tax payments and three years of cultiva­tion, the reaya had “security of tenure,”^[1231] as we have seen in Sweden too.^[1232] “Sultanic law recognized that if a peasant held the actual possession of land long enough, and no one disputed it, this constituted legal possession.”⁷⁷ Tenants could not dictate the conditions of tenure, but this held in both systems.

Conditions for English peasants improved after the demographic and socio-economic changes of the Black Death: servile villeinage gradually disappeared.⁷⁸ Tenurial rights were increasingly recorded on a court roll, a copy of which was given to the tenant (hence, copyhold tenure). Though copyholders had more secure rights than villeins, they still did not enjoy the full rights of freeholders. They could not sue in a royal court, so common law remedies remained unavailable to them, as they had been to villeins. However, if the lord violated manorial custom, copyholders could appeal to Chancery. Only gradually did their legal status change: a copyholder could recover title to land in case of trespass by using a real common law action (of ejectment), i.e. a remedy that could be tried in a royal court - but only after the 1570s.^[1233] English peasants only acquired the coveted state protection enjoyed by freeholders and Ottoman peas­ants late. If actual conditions were better for English peasants originally, this cannot be ascribed to the legal framework.

What about the assumed hallmark of secure property rights, inherit­ance? Even the highest ranks of English tenants, the fee simple holders, could not bequeath their property at will; inheritance was determined by common law strictures,^[1234] which seem more restrictive than Ottoman ones. By the thirteenth century, most free tenures in England could only be inherited by the first-born, though such succession seems to have been already customary from the eleventh century, not least due to royal involvement.^[1235] Primogeniture preserved estates intact over gener­ations, so it is assumed to serve landlord interests. But, with only small exceptions, “the nobility and gentry were... in effect forbidden to make in their lifetimes arrangements for the benefit of younger sons or daugh­ters” or relatives, to arrange for marriages, or to pay debts after death, except by gift when alive (inter vivos), which had drawbacks.^[1236] Wills were also invalid in common law until the Statute of Wills was passed in 1540 in response to overwhelming social pressure.^[1237] The individual thus did not originally have full freedom of disposition; it had highly restricted, well-regulated rights, with often highly inequitable outcomes. And although eventually such rights were transformed in a way that protected individual will very strongly - for instance, the testator’s right even to disinherit became uncontested^[1238] - these developments long postdated the emergence of Parliament, so cannot explain institutional variation at this level between the two cases.

Ottoman law provided somewhat greater individual discretion, as the gift, the main land unit, passed by default to the son or was divided among many sons under a different status.^[1239] Even daughters’ inherit­ance rights were codified in 1568, provided they paid tax.^[1240] Islamic law allowed the testator to allocate one third of his possessions at will, with the rest going to the family group with strict orders of priority.^[1241] As noted, Hanafi law imposed partible inheritance. In a recurrent irony, the fairest solution - ensuring all descendants were provided for - appears in the non-constitutional setting; it also often had suboptimal economic results, however, as it fragmented landholdings often making them economically non-viable.^[1242]

English and Ottoman law imposed similar restrictions on alienation as well. Alienation of Ottoman lands was formally barred: “In principle... miri land could not be bought and sold.”^[1243] Only loans and leases were allowed. In practice, however, peasants did buy and sell land “as though they were its owners,” as affirmed by contemporary jurists in fatwas.^[1244] Early sixteenth-century legal texts referred to such transactions as sales of the right of residence (hakk-i karar). This required the permission of the timar-holder (the sipahi) and a tax payment to him.^[1245]

At the bottom of the scale, English villeins could also only alienate their tenement with their lord’s consent.^[1246] But even their more secure succes­sors, copyholders, were formally at least limited, as they could not alienate their tenancy independently; they could only surrender it to their lord, who alone had the right to transfer - a formality that held until 1925.93 Nonetheless, in practice, copyholders also alienated and kept the pro­ceeds of sales like their Ottoman counterparts. Freeholders had the power to alienate since the twelfth century.⁹⁴ Whether these practices make England truly different can only be assessed by examining whether Ottoman transactions were more constrained in practice than in England and for what reasons.

It is important also to note what social purposes were being served by restrictions on alienation; doing so shows how demands for rights were similar across cases but also how increasingly English freedoms were predicated on state power. Alienations were barred in both cases origin­ally to prevent the concentration of land and to protect heirs.

In England the crown could (originally at least) exercise power over the more powerful and limit the concentration of power among tenants-in- chief through strong restrictions, especially after 1256: tenants-in-chief could not alienate without persuading the crown that it would not lose income through the sale and without obtaining a royal license.^[1247] Land transferred without license was seized or a fine was imposed. Tenants-in- chief only acquired effective freedom of alienation after 1327, i.e. after parliament was fully formed, though licenses and fines remained.^[1248] That was the condition for allowing lower tenants to freely alienate their holdings from the twelfth century. By contrast, in the Ottoman Empire the danger of unrestricted alienations “allowing land to accumulate in the wrong hands” remained pressing, as Imber noted^[1249] - absent state cap­acity to manage such a trend, alienations were formally barred. Nor did Ottoman restrictions flow from weaker property rights; on the contrary, once miri land was sold under Islamic law, it was so protected that it could not revert back to miri status.^[1250]

Further, alienation of miri lands was restricted in Ottoman law in 1601 due again to equity concerns: land sold to settle debts of the deceased deprived heirs of their inheritance.^[1251] Alienation was similarly originally restricted in England to “maintain equality among the sons”:^[1252] it pre­vented the father from selling, which typically dispossessed other sons. Early English freeholders were also originally restricted by their descend­ants’ right to inherit, especially regarding land they had themselves inherited (as opposed to purchased).¹⁰¹ When primogeniture prevailed, however, other offspring lost protection and substitutes had to be found. Alienation allowed a parent to endow their other children before death. It was thus liberalized because it “mitigate[d] the harshness of primogeniture.”¹⁰² Alienation accordingly cannot be reduced to pres­sures from rising land prices;¹⁰³ rather it balanced pressures created by the inequity royal law could impose.¹⁰⁴ But the enabling condition was royal capacity to keep the most powerful under relative control, at least originally. Ottoman incapacity to both protect all heirs and prevent land concentration explains why alienation remained restricted.

In short, a comparison of the two systems of real property suggests that the common foundation of state control of land generated very similar patterns of legal rights. Of course, far more detailed studies are needed to probe regime differences than is possible here. These points aim simply to suggest that the assessment of Ottoman property rights requires a fuller comparison with England and that, before culturalist arguments are invoked to explain political and economic outcomes, a better assessment of state capacity is required. Variation, we will see next, was more at the level of enforcement than legal principle, and this was a problem of infrastructural control. As Gerber emphasized, “much of the predation that took place in the Ottoman Empire [in the seventeenth century] was not an outgrowth of central policy but rather a violation and subversion of it, mainly by disobedient central governors.”^[1253] If property rights security differed, this reflected poor infrastructural capacity, not a more “des­potic” or arbitrary regime. This is further seen in two further aspects of land relations, examined next: land endowments and expropriations.

11.2