Legal Translation between Empires The Case of Çiftlik in Serbia

In the cold early months of 1880, rumors spread that the government of the young Serbian Principality was preparing a law that would once and for all abolish the large estates known as çiftliks.^[1] In Serbia’s newly-annexed district of Niš, these Ottoman estates comprised much of the landscape: the expansive fields of corn, wheat, and hemp in the Morava and Nišava river valleys, the vegetable gardens, the vineyards on the hillslopes, the Christian cultivators’ villages, and an occasional countryside dwelling (kula) of the Muslim çiftlik holders. Soon after, and in spite of the protests of the few çiftlik holders that remained in the area, the Serbian government announced the Agrarian Law (the "Law"). Like the 1860 local Ottoman çiftlik regulations (nizâmnâmes)^[2] on which it was based, the Law distinguished between different types of property on estates, depending on the holder-tenant relationship, the type of peasant’ dues, and the length of their land tenure. The Law broadly divided the estates into two (questionably named) categories of gospodarluk and çiftlik. On the gospodarluk, the dues were immutable, and the holder’s use of property only limited, as "the land was considered to be in the inheritance (baština) of those who cultivated it" (art. 2). In the case of the çiftlik, the land was "considered to be the property of the çiftlik owner, and the owner could give it for cultivation to whomever they pleased and could change the type of dues" (art. 4).^[3] However, only several lines below—and contrary to the more differentiated Ottoman official view—the Law recognized all estates as private property of the holders to be expropriated by sales to the peasants. (Hereafter I also refer to all estates as çiftliks.)

The government’s decision to treat the çiftliks as private property met with strong opposition in the Serbian parliament. The Serbian Prime Minister maintained that even though unjust, the çiftlik was private property that could as such not be conquered by war as "an army conquers public rights, but not private rights."^[4] In contrast to Russian and Romanian cases, the claim that private property as such did not exist in the Ottoman Empire never gained traction in Serbia. Only one deputy is recorded citing the incompatibility of private property and Islamic law. He was opposed by the Minister of Justice, who read out sentences on mülk property from the Ottoman Land Code.^[5] While the government managed to pass the Law by insisting on the sanctity of private property, it took a different position in their dealings abroad. In European countries, Serbian diplomats continued to present the çiftlik as a backward, feudal, and unjust form of land ownership fundamentally incompatible with private property.

While researching the Serbian agrarian reform, I wondered about these and many other inconsistencies that I encountered in the sources. Why did the lawmakers meticulously engage with the Ottoman law only to suspend it? Why did they, against all odds, opt in favor of private property, and justify this choice by the Ottoman Land Code, a legal text that did not, in fact, unambiguously prove what they claimed it did? While I initially thought such inconsistencies came from either misunderstanding or misinterpretation of Ottoman property law, in my current book project I see them as a specific feature of legal translation in Southeast Europe that was decisively shaped by the inter-imperial position of Serbia and other states carved out of the Ottoman peripheries.^[6] The precarious position of the new states wedged between competing empires limited their choices in legal translation. In order to acquire property, these new states did not only perform legal translation from Ottoman law. Rather, they mastered the art of translating property law from one imperial discourse into another; from the Ottoman terms, categories, and legal understandings of property into those developed in the European empires. The process of legal translation was thus a form of positioning, of making a choice that would secure their existence between empires.

The Berlin Congress of 1878 played the key role in the development of post-Ottoman property regimes in that it drew the boundaries within which any further adjudication of property could take place. At the Congress, the European Powers tried to straddle the ambivalences between conquest and postimperial succession^[7]: What still belonged to the Ottoman Empire after the territorial losses in the Russo-Ottoman war? The Congress inaugurated an important achievement in minority protection by explicitly protecting the private property of the Muslim population of Serbia, Bulgaria, and Montenegro (though not preventing their displacement). In addition, the Congress blocked the new states from access to Ottoman state as well as waqf property by subjecting these properties to bilateral commissions. This in effect meant that the Ottoman land regime would be transferred as is into the new states: a proposal not only foreign to the imagination of the national activists, but also one that did not recognize the century of land conflict that had led to the emergence and strengthening of the nationalist movements in the first place. Lastly, the Ottoman state debt was transferred proportionally to the new states, and they were also required to uphold Ottoman standing contracts with the European companies, such as the construction of the railway that was to connect Vienna to Istanbul and Salonica.

The cumulative effect of all these measures was that the Great Powers granted political independence to the new states while keeping them in financial dependence, evident in the series of loans the new states were taking from European banks. In response to the conditions of the Congress, and in order to address the lack of legal access to property within their borders, the new states turned to Ottoman property law. Serbian statesmen sought not only to interpret Ottoman law to their own advantage, but also if possible to reject the categories, and even the legitimacy of Ottoman law altogether. The inconsistences such as those seen in the case of the çiftlik reform—a meticulous invoking of Ottoman law followed by its suspension in favor of a European concept—resulted from the ambivalence between the dissonant but simultaneous processes of interpretation and rejection.

Serbia’s main strategy was to wholeheartedly subscribe to a purportedly homogenous and rational European legal system that favored private property. The state had already incorporated European legal texts, including the Austrian Civil Code, into its laws. In addition, Serbian elites educated in Europe played a crucial role in mediating law, as they both literally and metaphorically acquired the necessary languages. Through the prism of European (colonial) law, Ottoman law was refracted in a way that rendered it anomalous. Serbian statesmen presented Ottoman law as a repository of irrational forms of property holding: whether layered, dated, backward, or unjust. This claim resonated with the broader European image of the Ottoman Empire as the epitome of legal opacity,^[8] which contributed to its second-tier international status in the eyes of the Great Powers, as examined by Cemil Aydın in a previous ILB essay.^[9]

This mechanism was at work in the agrarian reform. Serbian legislators interpreted and incorporated the Ottoman çiftlik regulations, but at the same time they rendered the çiftlik as one of the legal "untranslatables": words that allegedly do not have a counterpart in the target (legal) language.^[10] For instance, when a small group of çiftlik holders that still resided in Niš appealed to the Serbian Presidential Council in 1880, they were told that there was no such thing as çiftlik in Serbian laws (Sırbiye kânununca çiftlikât nâmı olmadığı).^[11] The argument was that çiftliks were a property from the past, utterly foreign to Serbia’s present legal system. In the words of the Serbian Prime Minister who defended the Agrarian Law abroad in 1881, "The aim of the Law is to resolve those remaining feudal relations, which are opposed to the modern political and social makeup of Serbia, through a negotiation process between feudal masters and peasants . . . ."^[12] The Serbian government opted to translate the çiftlik into private property, even though it was the only form of property that the Berlin Congress explicitly protected, and the only protection that the Congress signatories actually enforced. Serbian statesmen recognized that, by the late 19th century, protection of private property had become a measure of "civilization" that could make or break states. In this process, the claim to "untranslatability" of the çiftlik served to legitimize the process of expropriation, without questioning Serbia’s respect for private property. This solution was not unique. Serbian statesmen followed the way European states questioned the validity of the indigenous forms of property holding in order to acquire land in their colonies.^[13]

Just like inter-imperiality shaped the choices in the process of the agrarian reform, it also delineated its limitations. A crucial problem with the translation of çiftlik into private property was that such translation was inherently tied to dispossession. Local Ottoman regulations had affirmed the layered property rights on the Niš çiftliks, unevenly shared between the holders and the peasant-tenants.[reference_link14] If çiftlik was "land with double masters," as expressed by one of the Serbian observers,^[15] its translation into the terms of private property would mean the dispossession of one of them, either the holders or the peasants. Few people were happy with the çiftlik reform. But if the payments to the çiftlik holders were too little and too late, the brunt of the reform was borne by the peasants themselves, to whom the Serbian state has failed to deliver its one major promise: land ownership. The dismayed çiftlik peasants refused to pay the compensation to the holders, forcing the state into yet another debt, as it took a foreign loan of 6 million French Francs from Parisian and Viennese banks to make the payments in peasants’ stead. The peasants remained indebted to the state until debt cancellation in 1907. While the cancellation brought the long afterlife of çiftliks in the region to its end, it did not abolish the economic inequality that persisted as a long-term form of what Ann Stoler has called "imperial duress."^[16]

In her discussion of legal translation as a metaphor, Lena Foljanty connects the concept of legal transfer to Dipesh Chakrabarty’s broader critique of colonial cultural translation, which he argued was always mediated through the universal categories of European modernity.^[17] In the inter-imperial space of nineteenth-century Southeast Europe, too, legal translation was inextricably tied to coloniality. It represented an uneven negotiation of legal categories in a space dominated by magnetic forces of unequal empires. Property law in the Balkans became a place of legal sedimentation, which unevenly registered the legal pasts and presents of multiple competing empires. While the notion of legality served to hide multiple dispossessions, the claim to universality of categories—most prominently that of private property—enabled the new states to break the existing Ottoman property order by proclaiming some legal categories anomalous, irrational, inefficient, and thus legally untranslatable. This method, however, did not protect against the human and economic loss. The translation of property in the post-Ottoman Balkans was not a singular event: it was related to colonial translations that came before it, and many more that came after it in time, as more of the Ottoman legal space came under direct or indirect European jurisdiction. In an inter-imperial geography, translation remained stranded between one imperial vocabulary and the next, imagination stilted, and freedom attainable—if at all—only for those who could articulate their worth in the volatile grammar of civilization.