Transformation and Adaptation of Ottoman Land Law in 19th-Century Successor States
Fatma Gül Karagöz

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Journal of Islamic Law, Vol 5, 2024: Special Issue - Governing Islam: Law and the State in the Modern Age
Published: Aug 2, 2024
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Fatma Karagöz, Transformation and Adaptation of Ottoman Land Law in 19th-Century Successor States, 5 J. Islamic L. (2024), https://journalofislamiclaw.com/current/article/view/279 (last visited Aug. 2, 2024).

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Abstract

What happens to land and property relations when a new administration obtains the dominion of a territory? I became interested in this question a couple of years ago, while I was working with Professor Evgenia Kermeli on the fate of waqfs in the new Kingdom of Greece after the War of Independence (1821-1830). This was a period when Ottoman law became a part of Greek law, thus, in a manner of speaking reversing the previous practice. During the early modern period, when a new territory was occupied by the Ottoman Empire, some regulations from the old legal system were preserved, or incorporated into the new Ottoman system, an approach that can be seen since the early periods of Islam.[2] As such, the local custom that defined taxation was transformed and became a part of the Ottoman codifications (kanunname). Whereas in the 19th century, Ottoman land law and property law became a part of Greek law, this time because of the guarantees provided by international agreements, the London Protocol (1830) and the Treaty of Constantinople (1832).

Full Text

What happens to land and property relations when a new administration obtains the dominion of a territory? I became interested in this question a couple of years ago, while I was working with Professor Evgenia Kermeli on the fate of waqfs in the new Kingdom of Greece after the War of Independence (1821-1830).[#] This was a period when Ottoman law became a part of Greek law, thus, in a manner of speaking reversing the previous practice. During the early modern period, when a new territory was occupied by the Ottoman Empire, some regulations from the old legal system were preserved, or incorporated into the new Ottoman system, an approach that can be seen since the early periods of Islam.[#] As such, the local custom that defined taxation was transformed and became a part of the Ottoman codifications (kanunname). Whereas in the 19th century, Ottoman land law and property law became a part of Greek law, this time because of the guarantees provided by international agreements, the London Protocol (1830) and the Treaty of Constantinople (1832).


During the long 19th (and 20th) century, many new states and semi-autonomous administrations emerged in the former Ottoman provinces. Hence, Greece was not the only country where a new administration adopted and interpreted the Ottoman law. The land and property were the common agenda of these new administrations, as it would be expected from an economy based mostly on agricultural and livestock production inherited from the Ottoman Empire. In this roundtable, bringing together historians working on Ottoman agrarian history and law, we explore the challenges experienced in the interpretation and the transformation of Ottoman land law in the long 19th century by analyzing four different cases from the Balkans.[#]


The historical phenomenon explored in the roundtable has three main themes: First, the implementation of a new legal system was connected to the rejection of the institutions inherited from the Ottoman ancienne régime, the creation of a new society, and in some cases, part of nation-building.[#] Secondly, during the 19th century, the Ottoman Empire was also going through a reform and transformation process that was purposed towards centralization and control of the taxation on land production. Thus, the Ottoman reformists, like the ones in the successor states, faced a similar set of challenges. Finally, the reform process was bound by an international guarantee system that was also the basis of the adoption of Ottoman land law for the new administrations.


The problems that the reformists wanted to resolve were the cumulative result of the transformation of the Ottoman system during the 17th and 18th centuries. Ömer Lütfi Barkan and Halil İnalcık, two historians who hugely contributed to establishing "the norm" for Ottoman land law and tax law, described this period as one of decentralization and corruption of the old regime.[#] They characterized the designation of miri status to arable lands as the typical system in the Ottoman Empire.[#] Basically, in this system, the bare ownership of the land (ownership devoid of usufruct, raqaba) belonged to the state. The peasants were given the usufruct rights in exchange for the tax-payment to the sahib-i arz, "administrator of the land." An administrator of the land could be a sipahi, a cavalryman, or a member of a higher military elite. They were appointed by the central government for a limited period and then reappointed in another district, to prevent the accumulation of property and connection in the provinces. This system was regulated by the codifications of the sultans like Mehmed II (r. 1444-1446, 1451-1481), Bayezid II (r. 1481-1512), and Süleyman "The Lawgiver" (r. 1520-1566) and standardized under the norms of Hanafite jurisprudence by the shaikhulislāms (chief jurisconsults) like Ibn Kemal (d. 1534) and Ebussuud (d. 1574).[#] The peasants did not have the right to inheritance, only the son of a male peasant could "inherit" the usufruct directly. The rest of the family had to pay a fee (resm-i tapu or tapu, title deed) to the sahib-i arz. The land usufruct could not be sold but it could be exchanged by firagh (the transfer of usufruct). A peasant could construct on a miri land, with the permission of the sahib-i arz, a building (e.g., houses and/or barnyards). These buildings would be the private property of the peasant. Likewise, trees, gardens, and vineries on miri land could be private.[#]


This "idealized" system went through a process of transformation after the end of the 16th century because of social and economic challenges, paving the way for the wider application of tax-farming (iltizam, tax-collecting duty attributed by auction, for a lifelong period after the 17th century), the rise of ayan, the magnate or local notables prominent because of their wealth and control over land, and the rise of çiftliks, a plantation type farm, where peasants became waged, in some cases dispossessed workers rather than the usufruct owners.[#] In the Balkans, the dissatisfaction of the Christian peasants with this new local elite (the majority of whom were Muslims) that obtained a position through tax-farming or çiftliks was highlighted as one of the reasons behind the rebellions that eventually gained a nationalistic character. As some studies remind us, nationalistic idealisms or religio-ethnic identity questions were not the only reasons that led to the 19th-century rebellions.[#]


This background information introducing the basic problems of the Ottoman land regime demonstrates the difficulties that the 19th-century reformists had to contend with: The new administrations, despite their level of devotion to a strict reform program, might be obliged to find a balance between the old and new order. This challenge includes the tension between satisfying the people hoping for reform and contending with the resistance from the old privileged groups. Another party that could be included in this balancing act was the potential bargain that should be done with the "international society," especially when there were guarantees implemented by founding agreements. A problem that could be solved within property law or administrative law was reframed as a guarantee of international law and thus intertwined with the question of minorities or foreign people.


Our roundtable includes cases from Greece, Bulgaria, Serbia, and Bosnia-Herzegovina. There was a kind of continuity in the regime implemented by the international agreements. The London Protocol of 1830, signed by Russia, France, and England (the Ottoman Empire adhered in April 1830), recognized the property rights of Muslim minorities in the new Kingdom of Greece. The Treaty of Constantinople of 1832 signed by the three aforementioned states and the Ottoman Empire envisioned the implementation of a bilateral commission[#] to survey the property transfers (including miri and waqf) in the ceded lands from Ottoman Empire to Greece by the Muslims who desired to leave the country.[#] Likewise, the Treaty of Berlin (1878) accepted the property rights of Muslim minorities in the Bulgarian Principality, Montenegro, and the Serbian Principality and established bilateral commissions to survey the status of miri land and waqf land in these countries.[#] It should be noted, however, that a bilateral commission was not implemented in the Treaty of Berlin for Bosnia Herzegovina under Austrian Rule.[#]


Apart from this particular continuity in international agreements, our roundtable also follows the process of reforms in the Ottoman land law during the 19th century. My contribution explores how the Greek government applied the land law in a case of land sale. This case is different from the rest of the essays in the roundtable, as it is the only case where old Ottoman land law was applied—before the promulgation of the 1858 Land Code (Kanunname-i Arazi), the Regulations of 1847 on Title Deed, and even before the promulgation of the Imperial Decree of Gulhane in 1839, known as the Tanzimat Decree. The impact of the 1858 Land Code is still debated among historians and lawyers,[15] but I stand by the position that this code technically preserved the miri land regime. However, the miri regime in the 19th century expanded the rights of the usufruct owner in comparison with that of the previous centuries.[#] Thus, the roundtable offers an opportunity to trace the situation in the Balkans in parallel to this expansion.


The essays by Jelena Radovanović on Serbia and Milena Methodieva on Bulgaria coincide in some ways. They both explain the situation after the Treaty of Berlin discussing how the reform-minded administrators interpreted the Ottoman land law carefully to construct the new land regime. In Serbia, a specific source used during this process was the Ottoman local regulations (Nizamname) of 1860 on çiftliks. The final agenda of Serbian statesmen was to gain access to the property in their land and implement private ownership. Likewise, the Bulgarian administration had a goal of providing the peasants with sufficient land. They used the Ottoman Land Code of 1858 in a particular way to realize this agenda. The case of Bosnia Herzegovina, which Philippe Gelez’s essay analyzes, was an exception before the period of modernization, with the sharecropper system existing before the Ottoman conquest.[#] After the Treaty of Berlin, Bosnia-Herzegovina under Austrian control went through a reform process that once more depended on Ottoman law.


Our roundtable provides various examples of a "reform management process" that depended variously on the analysis and the interpretation of the Islamic/Ottoman land law, the particular reasons behind the rejection or the adoption of old law, the bargain and/or collaboration with foreign agents, and the misinterpretation or the re-interpretation of law sometimes by mistake, but sometimes on purpose. I would not be over-simplifying by stating that there was a shared purpose in all of these post-war reforms: to keep their subjects content while trying to establish their reform agenda, without provoking a new international crisis. Our roundtable sheds light on how the bureaucratic interpretations of the Ottoman land law were influenced by foreign forces while also expanding our understanding of the 19th-century transformation of land and property law in the successor states to the Ottoman Empire.

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References

[1] Fatma Gül Karagöz is a Post-Doctoral Fellow at the Program in Islamic Law supported by the Turkish Fulbright Commission.
[2] I thank Evgenia Kermeli for introducing me to this subject. We presented our initial conclusions in a joint presentation for CIEPO in 2022.
[3] Anver M. Emon, Religious pluralism and Islamic law: Dhimmis and others in the Empire of Law (Oxford: Oxford University Press, 2012), 47.
[4] Another important region for my question can be the colonialist experience in the Middle East and North Africa which will not be a part of this roundtable. For a 19th-century example about the problems that the French colonial administration went through in the 1830s, see Isabelle Grangaud, "Prouver par l’écriture: propriétaires algérois, conquérants français et historiens ottomanistes," Genèses 1 (2009):25 –45.
[5] Anna M. Mirkova, Muslim Land, Christian Labor. Transforming Ottoman Imperial Subjects into Bulgarian National Citizens, 1878–1939 (Budapest: Central European University Press, 2017).
[6] Ömer Lütfi Barkan, "Tımar," in Türkiye’de Toprak Meselesi, Toplu Eserler 1 (İstanbul: Gözlem Yayınları, 1980), 852; Halil İnalcık, "Centralization and Decentralization in Ottoman Administration," in Studies in Eighteenth Century Islamic History, eds. Thomas Naff and Roger Owen (Carbondale: Southern Illinois University Press, 1972), 27–52.
[7] Ömer Lütfi Barkan, "Türkiye’de toprak meselesinin tarihi esasları," in Türkiye’de Toprak Meselesi, Toplu Eserler 1 (İstanbul: Gözlem Yayınları, 1980), 125-49; Halil İnalcık, "The Ottoman Çift-hane System and Peasant taxation," Etudes Balkaniques 1 (2007): 141–51.
[8] Halil İnalcık, "Islamization of Ottoman Laws on land and land tax," Essays in Ottoman History (İstanbul: Eren Yayınları, 1998), 155–73.
[9] Fatma Gül Karagöz, "Women, land, and usufruct in the eighteenth-century Ottoman Empire: A case study of Vidin and Antakya," in Gender, Law and Material Culture, ed. Annette C. Cremer (New York: Routledge, 2020), 147–64.
[10] For an important book about the çiftlik practices, see Çağlar Keyder and Faruk Tabak, eds., Landholding and Commercial Agriculture in the Middle East: Globalization, Revolution, and Popular Culture (SUNY Press, 1991). For a more recent study that promises to enlarge the concept, see Fatma Gül Karagöz and Uğur Bayraktar, eds., Osmanlı İmparatorluğu’nda Toprak Sahipleri ve Çiftliğe Farklı Bakışlar (İstanbul: Tarih Vakfı Yurt Yayınları, 2023).
[11] For a recent critique of the nationalistic history of the reform period in the Balkans, see Frederick F. Anscombe, "The Balkan Revolutionary Age," The Journal of Modern History 84, no. 3 (2012): 572–606.
[12] It should be noted that a commission was implemented also in Algiers for the survey of documentation by the French. Grangaud, "Prouver par l’écriture," 24.
[13] For the text of the London Protocol in French, and the Treaty of Constantinople in English, see the website of the Hellenic Republic Ministry of Foreign Affairs Major International Treaties section. "Major International Treaties Concerning Greece," Hellenic Republic Ministry of Foreign Affairs, accessed December 11, 2023, https://www.mfa.gr/en/the-ministry/international-conventions/major-international-treaties-concerning-greece.html.
[14] "Traité de Berlin," in Recueil d’Actes Internationaux de L’Empire Ottoman tome quatrieme 1878-1902, ed. Gabriel Effendi Noradounghian (Paris: Librarie Cotillon, 1903), 175–92, 180, 185, 188.
[15] "Traité de Berlin," 183–84.
[16] For a critique of historiography, see E. Attila Aytekin, "Hukuk, tarih ve tarihyazımı: 1858 Osmanlı Arazi Kanunnâmesi’ne yönelik yaklaşımlar," Türkiye Araştırmaları Literatür Dergisi 5 (2005): 723–44.
[17] For works that demonstrate that a transformation existed before the 19th century, see Martha Mundy and Richard Saumarez Smith, Governing property, making the modern state: law, administration and production in Ottoman Syria (New York: Bloomsbury Publishing, 2007); Fatma Gül Karagöz, "The Evolution of Kanunname Writing in the 16th and 17th-Century-Ottoman Empire: A Comparison of Kanun-i Osmani of Bayezid II and of Kanunname-i Cedid," (MA thesis, Bilkent University, 2010); Malissa Taylor, Land and Legal Texts in the Early Modern Ottoman Empire: Harmonization, Property Rights and Sovereignty (Bloomsbury, 2023).
[18] Ömer Lütfi Barkan, "Harp Sonu Tarımsal Reform Hareketleri," in Türkiye’de Toprak Meselesi, Toplu Eserler 1 (İstanbul: Gözlem Yayınları, 1980), 48.