Ottoman Land Code of 1858

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The Ottoman Land Code of 1858 (recorded as 1274 in the Islamic Calendar)[1] was the beginning of a systematic land reform programme during the Tanzimat (reform) period of the Ottoman Empire in the second half of the 19th century. This was followed by the 1873 land emancipation act.

History[edit]

The Ottoman Land Code of 1858, prepared by the Tanzimat Council, was an original Ottoman creation, neither European nor entirely Islamic. It was founded on traditional land practices and included categories of land cited in Islamic law.[2]

Prior to 1858, land in Ottoman Syria, then a part of the Ottoman Empire since 1516, was cultivated or occupied mainly by peasants. Land ownership was regulated by people living on the land according to customs and traditions. Usually, land was communally owned by village residents, though land could be owned by individuals or families.[3] The Ottoman Empire classified land into five categories: "1)Arazi Memluke- Lands held in fee simple, freehold lands 2)Arazi Mirie- Crown lands belonging to the state exchequer 3)Arazi Mevkufe- Lands possessed in mortmain, but tenanted by a kind of copyhold 4)Arazi Metruke- Lands abandoned without cultivation or ostensible owner 5)Arazi Mevat- Dead lands, uncultivated and unappropriated.[4]

Arazi Memluke lands were properties that were owned by private individuals that were collected through conquest, state endowment, or inheritance. These lands were subject to taxation by the Ottoman Empire. Arazi Mirie lands were state owned properties that the Ottoman sultan could bestow to loyal subjects, viziers, and military commanders (these lands were kept through payments to the Ottoman Empire).Arazi Mevkufe is land constituting Arazi Memluke which has been made Vakf in accordance with the Sharia. Vakf means that the Ottoman Sultan has assigned the tithes or taxes to a specific object as opposed to an individual. Arazi Metruke is land that has been allocated for public use (ex. roads). Arazi Mevat is land that nobody has claimed ownership of which has subsequently been neglected and remains uncultivated".[5]

In 1858 the Ottoman Empire introduced The Ottoman Land Code of 1858, requiring land owners to register ownership. The reasons behind the law were twofold. (1) to increase tax revenue, and (2) to exercise greater state control over the area. Peasants, however, saw no need to register claims, for several reasons:[3]

  • Land owners were subject to military service in the Ottoman Army
  • General opposition to official regulations from the Ottoman Empire
  • Evasion of taxes and registration fees to the Ottoman Empire

The registration process itself was open to manipulation. Land collectively owned by village residents was registered in the name of a single landowner, with merchants and local Ottoman administrators registering large stretches of land in their own name. The result was land that became the legal property of people who may have never lived there, while peasants, even those who had lived on the land for generations, became tenants of absentee owners.[3]

Prior to the enactment of the Ottoman Land Code, 1858, land was held by virtue of Sultanic decrees, grants made by conquerors of various areas, judgments of both civil and Muslim religious courts, orders of administrative authorities and deeds of sale executed before the Muslim courts. Encroachment on unoccupied land belonging to the State and various other unauthorised methods accounted for large holdings. Land acquired by lawful means (such as grant from a competent authority) was, in theory at least, reported to Constantinople, where an effort was made to maintain a series of registers known as the daftar khaqani (imperial land registers).[6] With the enactment of the Ottoman Land Code, that same year the Turkish Government also passed the Land Registration Law of 1858, for better regulation of its land tenure laws, and, by way of extension, a more efficient way of levying taxes on property.

The Ottoman land law classifies land under five kinds or categories. These, with suggested approximate counterparts in English, are as follows:[7]

  1. (a)Waqf generally was property gifted to a pious end, consisting of allodial land in mortmain tenure, being land assured to pious foundations or revenue from land assured to pious foundations; also usufruct State land of which the State revenues are assured to pious foundations
  2. (b) Mülk was land given by the Ottoman conqueror to Muslims, or Khuraj lands given to Christians and taxed, in exchange for Muslim protection. It was private or allodial land (held in absolute ownership).
  3. (c) Miri was neither (a) nor (b) but referred to lands given out for conditional public use, while ultimate ownership lay with the Emir. It was feudal or State land, but can also specifically refer to vacant State land, private usufruct State land. A sub-category of the same is mahlul, or what is defined as escheated State land.[8] Most Ottoman registrations of miri (usufruct) titles existing in Palestine are based on a presumed or lost grant.[9]
  4. (d) Matruka = communal profits-à-prendre land, being land subject to public easements in common, or servitude State land, such as roads, cemeteries and pastures. Included in this class is Meraʿa land, meaning, pasture land reserved primarily for the use of the adjoining villages.[10]
  5. (e) Mewat/Mawat = dead (uncultivated/uninhabited) land; unoccupied lands not held by title deed,and lying over 1.5 miles from any town or village. [11].[12][13][14]

A sixth category existed, known as mahlul, land that reverted to the state if left uncultivated for 3 years or left vacant and up for re-grant.[15]

The extent to which each of these modes of law applied to the several countries under Ottoman rule varied, and was largely dependent upon the country itself. For example, not all of these modes of user were actually found in Palestine. The extent of mulk or allodial lands (privately owned property) in Palestine was limited, and was usually only found in the old cities or in garden areas. Rural land in this category was rare.[16] In nearly all cases (excluding only “Waqf” lands, and communal profits-à-prendre land, or dead and undeveloped land), lands were either mulk or miri tenures.[17]

The Ottoman Land Code as applied in the Palestine Mandate[edit]

Local Palestinian tradition, underwritten by both Ottoman and British law, held that the land belonged to God or the sultan: families could maintain the land but the notion of private property title was alien, despite efforts since 1858 to introduce it.[18] Until British rule which redistributed land to individual family units, village land was held collectively by the hamula or clan.[19] The Ottoman system and all later governments until 1967 acknowledged that the land surrounding the village was for the use of its inhabitants either as common pastures or for the future development of the village. The villagers did not have any need or opportunity to register their lands. They knew among themselves which of the village lands belonged to which families and which were owned in common (mashaa ).[20] Customary practice however under the British was reviewed to consider all land within village and town boundaries as no longer miri but mülk.[21]

When the British assumed control over Palestine at the end of 1917 with the disintegration of the Ottoman Empire, they applied the Ottoman laws of the Ottoman Land Code of 1858 to all inhabitants.[22] At the time of the British occupation the land tax was collected at the rate of 12 1/2 per cent. of the gross yield of the land. Crops were assessed on the threshing floor or in the field and the tithe was collected from the cultivators.[23] In 1925, additional legislation provided that taxation on crops and other produce not exceed 10%. In 1928, as a measure of reform, the Mandate Government of Palestine began to apply an Ordinance for the "Commutation of Tithes," this tax in effect being a fixed aggregate amount paid annually. It was related to the average amount of tithe (tax) that had been paid by the village during the four years immediately preceding the application of the Ordinance to it.[24]

Under Israeli rule[edit]

By June 1967, only a third of West Bank land had been registered under the Settlement of Disputes over Land and Water Law and Israel quickly moved, in 1968, to cancel the possibility of registering one's title with the Jordanian Land Register.[25] Claims for land in the other two thirds depended on either a Turkish or British certificate of registration, or through tax registers and proof of purchase under Jordanian law.[26] On assuming control, Israel suspended these procedures, and asserted that of five categories of land in the old Ottoman Law – waqf. mülk, miri, matruke and mawat – the last three were state land, taking advantage of modifications enacted by the British Mandatory Authority, such as the Mawat Land Ordinance of 1921.[15] The Jordanian government never considered the last three as state land, and only a very small proportion of the West Bank was registered as such under Jordanian rule.[27]

See also[edit]

Notes[edit]

Citations[edit]

  1. ^ Full text of the Ottoman Land Code, Translated by F. Ongley of the Receiver General's Office in British Cyprus
  2. ^ Islamic Law in Palestine and Israel: A History of the Survival of Tanzimat, Robert H. Eisenman
  3. ^ a b c Ottoman Land Registration Law as a Contributing Factor in the Israeli-Arab Conflict, Jon-Jay Tilsen, Congregation Beth El–Keser Israel (retrieved August 14, 2006)
  4. ^ Full text of the Ottoman Land Code, Translated by F. Ongley of the Receiver General's Office in British Cyprus
  5. ^ Full text of the Ottoman Land Code, Translated by F. Ongley of the Receiver General's Office in British Cyprus
  6. ^ The Survey of Palestine under the British Mandate: 1920 – 1948, British Mandate government printing office, Jerusalem 1946, vol. 1, p. 237, chapter 8, section 3, paragraph 37
  7. ^ The Survey of Palestine under the British Mandate: 1920–1948, British Mandate government printing office, Jerusalem 1946, vol. 1, p. 226–227, of chapter 8, section 1, paragraph 6 (Reprinted in 1991 by the Institute for Palestine Studies).
  8. ^ The Survey of Palestine under the British Mandate: 1920–1948, British Mandate government printing office, Jerusalem 1946, vol. 1, pp. 226 – ff., of chapter 8, section 1, paragraphs 6 & 16(Reprinted in 1991 by the Institute for Palestine Studies). There, it states: "...The 'owners' who hold land by miri tenure (i.e. conditional usufruct tenure of land held by grant from the State) can only exercise such rights as can be shown to have been accorded to them by the State, and these rights are laid down in the Ottoman law... Failure of successors brings the grant to an end and the land becomes mahlul(option land) and returns to the State."
  9. ^ The Survey of Palestine under the British Mandate: 1920–1948, British Mandate government printing office, Jerusalem 1946, vol. 1, p. 229, of chapter 8, section 1, paragraph 12.
  10. ^ Israel Government Archives (Land Registry Office of Jerusalem - Register of Deeds), p. 39 (Mandatory Organizations); letter written by M. Doukhan, Advocate, on 19 January, 1941. "Meraʿa lands," same as "Arazi Metruké" in the Ottoman Land Code, of which there were two kinds: the first being "pasture land" that has been allotted to a village or number of villages, and which cannot be cultivated or turned into private property or belong to individuals (Art. 97 of the Ottoman Land Code). Such lands were used principally as pasture land for grazing; the second being "pasture land" that was privately owned, and which could be used for general cultivation, such as ploughing and sowing (Article 5 of the Law of Disposition of Immovable Property of the year 1913 (1331)), without the necessity of obtaining special authority.
  11. ^ Ruth Kark & Michael Oren-Nordheim, Jerusalem and its Environs: Quarters, Neighborhoods, Villages, 1800–1948, Hebrew University: Jerusalem 2001, p. 413
  12. ^ Shehadeh 1985b, pp. 43,45.
  13. ^ LeVine 2005, pp. 184–185.
  14. ^ Stein 2017, pp. 11–12.
  15. ^ a b LeVine 2005, p. 184.
  16. ^ The Survey of Palestine under the British Mandate: 1920–1948, British Mandate government printing office, Jerusalem 1946, vol. 1, pp. 225–226 of chapter 8, section 1, paragraph 3 (Reprinted in 1991 by the Institute for Palestine Studies).
  17. ^ The Survey of Palestine under the British Mandate: 1920–1948, British Mandate government printing office, Jerusalem 1946, vol. 1, p. 225 of chapter 8, section 1, paragraph 3 (Reprinted in 1991 by the Institute for Palestine Studies).
  18. ^ Kimmerling 2008, p. 392,n.43.
  19. ^ Kelly 2006, p. 36.
  20. ^ Shehadeh 1985b, p. 45.
  21. ^ LeVine 2005, p. 187.
  22. ^ The Survey of Palestine under the British Mandate: 1920–1948, British Mandate government printing office, Jerusalem 1946, vol. 1, p. 225, of chapter 8, section 1, paragraph 1 (Reprinted in 1991 by the Institute for Palestine Studies), which reads: "The land law in Palestine embraces the system of tenures inherited from the Ottoman regime, enriched by some amendments, mostly of a declaratory character, enacted since the British Occupation on the authority of the Palestine Orders-in-Council."
  23. ^ A Survey of Palestine (Prepared in December 1945 and January 1946 for the information of the Anglo-American Committee of Inquiry), chapter 8, section 4, British Mandate Government of Palestine: Jerusalem 1946, p. 246
  24. ^ A Survey of Palestine (Prepared in December 1945 and January 1946 for the information of the Anglo-American Committee of Inquiry), chapter 8, section 4, British Mandate Government of Palestine: Jerusalem 1946, pp. 246 – 247
  25. ^ Nicoletti & Hearne 2012, p. 14.
  26. ^ Shehadeh 1985b, p. 43.
  27. ^ Shehadeh 1985b, p. 47.

Sources[edit]