Regulating Land Rights in Late Nineteenth-Century Salt: The Limits of Legal Pluralism in Ottoman Property Law

6Regulating Land Rights in Late Nineteenth-Century Salt

The Limits of Legal Pluralism in Ottoman Property Law

Nora Barakat

THIS ARTICLE EXAMINES the relationship between different district-level decision-making bodies in the late nineteenth-century Ottoman context. Using Sharia court records and property registers produced in the rural Syrian district of Salt as well as investigations from the district that reached Istanbul, I explore the roles and personnel of various courts and bureaucratic offices involved in allocating rights to landed property and settling disputes over land. With this examination, I aim to add nuance to characterizations of the late Ottoman legal system as pluralistic. These descriptions have emphasized Ottoman litigants’ abilities to choose between multiple state-sanctioned legal forums with overlapping duties, especially Sharia and Nizamiye courts, to obtain the most beneficial ruling.1 I argue that in the realm of property law, litigants had different goals when approaching the various courts and bureaucratic agencies governing land relations in Salt and their cases had different possible outcomes. Investigating the discrete roles of these government agencies and courts in different areas of late Ottoman law and governance is crucial for a deeper understanding of litigants’ experience of the late Ottoman legal environment.

Historians have mainly borrowed the concept of legal pluralism, in what Sally Merry termed the “social science” sense, from anthropologists.2 When early twentieth-century anthropologists encountered people in colonized societies utilizing the legal systems of the colonial state alongside “indigenous” legal systems, which anthropologists of that era generally interpreted as pure and autonomous, they labeled such situations legally pluralistic. Later in the twentieth century, the concept came to include non-colonized locales, with the definition of “legal system” encompassing non-state normative orders, both institutionalized orders like university codes and informal orders like family rules.3

In the context of Ottoman studies, historians have used the concept of legal pluralism to re-conceptualize the relationship between Sharia courts, the main state-sanctioned judicial forum available to provincial Ottomans before the late nineteenth century, and the Nizamiye courts established throughout the empire in the 1870s and 1880s. While earlier scholars had argued that Nizamiye courts’ gradual usurpation of Sharia court duties in the late nineteenth century marked a process of secularization,4 more recently scholars have asserted that the Sharia and Nizamiye courts were actually part of a single legal system and played complementary rather than antagonistic “religious” vs. “secular” roles. Avi Rubin, for example, has asserted that while the Nizamiye courts did take over some of the functions that had previously been under the Sharia court’s purview, central jurists saw Sharia courts and Sharia-based legal doctrine as central aspects of Ottoman sovereignty and had no intention of sidelining them.5

Rubin and others have also noted that many Ottoman litigants continued to use Sharia courts extensively, and in multiple areas of law, even after the establishment of Nizamiye courts at the various levels of provincial administration. He argued that although central jurists issued numerous directives in the late nineteenth century refining the details of the separate spheres of authority of the Sharia and Nizamiye courts, numerous “grey areas” remained that afforded litigants multiple opportunities to choose their preferred legal forum.6 Iris Agmon, investigating the legal environment of late nineteenth-century Jaffa and Haifa after the establishment of Nizamiye courts, argued that the Sharia court maintained an “open door attitude” especially at the lower levels of government, allowing litigants to take their legal business where they pleased. The establishment of Nizamiye courts, therefore, provided further options in terms of where to take legal business, i.e., the opportunity to forum shop.7

This focus on the litigant experience and forum shopping led Ido Shahar to argue for a new concept of state-sanctioned legal pluralism. Rather than focusing on the prevalence of non-state normative orders to gauge the pluralistic nature of a legal environment, he proposed that legal systems could be described as pluralistic depending on the level of choice they afford their litigants regarding where to take their business.8 In his extensive review of the Nizamiye court system, Avi Rubin used this concept of state-sanctioned legal pluralism to discuss examples of forum shopping between Sharia courts, Nizamiye courts and administrative councils.9 Legal pluralism in the late Ottoman case, therefore, has come to signify forum shopping among state-sanctioned legal venues, rather than the contested relationship between the state-sanctioned legal system and other types of non-state normative orders.

My investigation of the legal system governing property relations in Salt yields three main observations pertinent to the discussion of legal pluralism, and specifically the litigant experience of forum shopping, among Ottoman historians. First, forum shopping in the late Ottoman context had different parameters and possibilities depending on the area of law. Scholars have noted that the Nizamiye courts assumed authority for criminal cases in the late nineteenth century, but this seems to be true for certain areas of civil law as well. In the realm of property law, and especially with regard to transactions and disputes involving agricultural land, legally sanctioned forum shopping was very limited in Salt.

Second, while Sharia court judges rejected cases dealing directly with rights to agricultural land, they did rule on civil cases that involved land indirectly. Litigants often used the Sharia court to make claims on debt with unregistered agricultural land as collateral, and the Sharia court would issue rulings ordering the borrower to pay the creditor back without mentioning the mortgage. This meant that the Sharia court provided a forum for litigants to obtain a ruling that recorded the existence of such mortgages, which were otherwise illegal because the land was unregistered. In this way, the Sharia court supported, and preserved for historians, the existence of an extra-state land market in which transactions were conducted outside the purview of the district land administration. Legal pluralism in Salt, at least in the realm of property law, therefore, resembled anthropologists’ descriptions of extra-state normative orders that challenged the hegemony of the state-sanctioned legal system. However, litigants’ use of the Sharia court, itself a state-sanctioned legal forum, to obtain record of these mortgages illustrates the way such extra-state normative orders were themselves intertwined with the vocabulary and legitimation mechanisms of the state system.10

Finally, the roles of the Sharia and Nizamiye courts in regulating control over land must be understood alongside not only the activities of bureaucratic offices, but also district and provincial administrative councils. In Salt, these councils had a more prominent role in settling large-scale disputes over agricultural land than the courts. The administrative council’s ongoing role in settling property disputes points to struggles within the bureaucracy over which agencies and bodies would have the power to allocate rights to increasingly valuable land. Litigants were able to take advantage of these struggles by petitioning the agencies they thought might support their specific rights to land, but their attempts were not state-sanctioned forum shopping. Further, these attempts occurred in the context of an expanding bureaucracy with new opportunities for notables in towns and cities as well as rural community leaders to participate in administering and deciding disputes over rights to land.11 This bureaucratic expansion meant that litigants interacted with Ottoman governing agencies more intensively, especially in rural areas. The knowledge and connections forged through this expansion were crucial to litigants’ attempts to defend their land rights by manipulating the complex and rapidly changing system.

Background: The Legal/Administrative Scene in Hamidian Salt

The district of Salt is an appropriate choice for analyzing how late Hamidian bureaucratic agencies and courts worked together, or sometimes at odds, to regulate land control for two main reasons. The first has to do with the accessibility of sources. The region of the Ottoman Empire that became Jordan in the twentieth century is one of the few with surviving land registers from the late nineteenth and early twentieth centuries that recorded ownership and transactions of land in the terms of the 1858 Land Code and are accessible to scholars.12 Second, the Salt region was composed largely of state-owned agricultural (miri) land that fell under the Land Code’s provisions in the late nineteenth century.

Thanks to a few important studies, we also have a fairly extensive idea of the region’s social history in the late Ottoman period, the various social groups with interests in the district’s land and the stakes of that interest. Raouf Abujaber chronicled not only the region’s environmental features and dominant agricultural practices, but also stories of specific agriculturalists, including newcomers from Palestine, immigrant refugees and nomadic leaders heading plantation farms in the late nineteenth century.13 Eugene Rogan’s work illuminated not only the contours of Ottoman governance in Salt, but also extensive details of the district’s population and property and credit relations.14 In the realm of Salt’s history, this article builds on Rogan’s work on the implementation of the Land Code in particular to detail the relationship between different Ottoman legal and administrative institutions governing property relations and the way local litigants used the district’s legal system. However, it also seeks to use Salt as a case study to bring out broader themes in the Hamidian legal environment especially as it pertained to agricultural land.15

In the organizational structure of the late Tanzimat period, the southeastern region of the province of Syria surrounding the town of Salt became a district along the detailed lines of the 1864 Provincial Administration Regulation in the late 1860s.16 Previously, Salt had been governed indirectly, mainly through agreements with leaders of various pastoral nomadic groups who were involved in provisioning and protecting the Damascus Hajj route, which ran through the district.17 When the Syrian provincial government created a district around Salt in 1867 and 1869 along the lines of the Provincial Administration Regulations, it was attached to the county (liva/sancak) of Balqa, which straddled the Jordan River and had its center in Nablus.18

While reliable population statistics for the later nineteenth century have not been uncovered,19 the local population included cultivators and merchants settled in the town of Salt itself and the villages in its environs as well as groups that the Ottoman government referred to as nomadic.20 Because of its high level of mobility, the population of the Salt district had been in some state of flux throughout the Ottoman period. Starting in the 1860s, groups of agricultural investors, merchants, and their families and employees came to the district looking for fertile land and business opportunities mainly from urban centers in Palestine to the west and the Damascus region to the north. Because of their relative wealth, shared language, and commercial ties with Salt’s existing inhabitants, as well as their previous experience with direct Ottoman rule in more urban settings, the members of this group would become the main local representatives of Ottoman governance in the elaborating administrative system in Salt beginning in the 1870s.21 In the 1880s, the central and Syrian governments also began resettling refugees of the Ottoman-Russian wars, especially Circassians, around Salt. Salt was chosen as a settlement site in part because of the perception that the district enjoyed a wealth of highly fertile and unused, or “empty,” land.22

In the late nineteenth century, this perception translated into the legal categorization of large swaths of the district’s land as mahlul, or unused or deserted state land. In the developing exclusive ownership-based terms of the 1858 Land Code, the provincial land administration had the legal authority to sell this land to interested private bidders or to allocate it for public purposes.23 These purposes included settling the aforementioned refugees with the expectation that they would cultivate the purportedly unused land and pay taxes, as well as allocating land for various development projects, the most important in the Salt region being the building of the Hijaz Railway along the pilgrimage route.24

The problem in Salt that would quickly become apparent was that even if parts of the district were not continuously cultivated, which in Ottoman legal terms meant they could be claimed as mahlul by the land administration, they were hardly unused or “empty.”25 Groups living both inside and outside of the town’s boundaries laid claim to these lands mainly for purposes of grazing their herds, but also increasingly for agriculture.26 When refugees settled in the Salt region with state sanction and claimed the agricultural land the government allocated to them, conflict ensued that often became violent. At the same time, prominent merchants in Salt attempted to secure control over agricultural products and sometimes over agricultural land itself, elaborating a network of mortgage-based debt that also highlighted issues of land control.27

The stakes of legal disputes over land in Salt were therefore very high, just as they were all over the Empire in the late nineteenth century. As the Ottoman administrative and judicial apparatus in the district expanded and became more complex, its main preoccupation soon became addressing the various claims over land whose control and ownership was thrown into question by the terms of the 1858 Land Code. Tracing the development of the government agencies involved with granting exclusive legal control over state land is possible through a reading of the provincial yearbooks of Syria (Suriye salnameleri), in which Salt appears as a district in most volumes. Litigants faced these agencies and courts and their complex division of labor as they attempted to maintain control over as much land as possible, and pay the lowest possible taxes, at the turn of the century. At the same time, some litigants became members of these courts and councils and worked closely with bureaucratic agencies to allocate rights to land themselves.

As multiple scholars have noted, the Provincial Administration Regulations envisioned governance by council. In Salt, the first governing council, which combined administrative and judicial functions (meclis-i idare ve dawa), appears in the provincial yearbook of 1870.28 This district-level council was the successor of an institution established in the 1840s in the empire’s provincial cities: the “great council,” whose wide-ranging administrative and judicial responsibilities were outlined in an 1849 directive. In that directive, the council was envisioned as being intimately involved in the slow and uneven process of transferring the rights of tax farmers over agricultural lands in the empire to the central bureaucracy and its agents in the provinces.29 Significantly, the council was also to issue decisions regarding the legal status of land, especially with regard to which lands were to be considered unused (mahlul) or legally available for repurposing by the state.30

In the 1860s and in subsequent legislation, as the system of separate judicial and administrative arms of government was more fully elaborated, many duties of the great council deemed “judicial,” especially in the criminal realm but also in terms of property disputes, were placed under the authority of the Nizamiye court system. At the same time, many of its “administrative” duties were taken over by various bureaucratic agencies like the imperial land administration (Defter-i Hakkani). By 1876, the combined administrative/judicial council in Salt had split into two separate entities, an administrative council chaired by the district governor, and a judicial council chaired by the same deputy judge (naib) who also chaired the Sharia court.31 This judicial council was the precursor to the Nizamiye court of first instance, which had authority over land disputes at the district level. Like most other district Nizamiye courts, the minutes for the Salt Court of First Instance have not survived. However, the surviving Sharia court records indicate that the court of first instance was the main forum for deciding small-scale land disputes between individuals and families in the late nineteenth century.

However, Sharia courts also had historical involvement in allocating control to agricultural land. Litigants in other districts had long taken disputes over privately owned property, such as houses, shops and urban plots, to local Sharia courts. There is also evidence that in the mid-nineteenth century wealthy individuals, mainly tax farmers, began illegally transacting in usufruct rights over miri land in Sharia courts in the same way that they previously had for mülk property.32 The situation in Salt was different because the first district Sharia court, at least for which records survive, was established in 1869, the year before the establishment of the first administrative and judicial council. The records of this court include three volumes of property transactions from the 1880s, before the establishment of a regular property administration in Salt, including sales and mortgages of agricultural (miri) land.

The earliest records of a property administration in Salt along the lines of the 1858 Land Code and 1859 Tapu Regulation are five volumes of initial land registrations (yoklama) among two of the main parties to later conflict over land, pastoral nomads and Circassian immigrants, dating from the late 1870s and early 1880s.33 These volumes detail that the registrations were carried out in accordance with an order from the provincial governor’s office in Syria and include signatures that provide an idea of the wide range of district authorities involved: the district governor, the deputy judge who chaired both the Sharia court and the judicial council, the district mufti, the financial director (müdür mal), the survey scribe (tahrirat katibi), two or three members of the district administrative council, the property administration official (tapu katibi) and his deputy.34 After these initial registers, there is no sign of a regular property administration in Salt until the 1890s.35

Two tax volumes (defter-i tahsilat) from the 1890s followed by regular title registers (defter-i hakkani) that cover the remainder of the Ottoman period detail the process for land transactions in Salt. Beginning in January 1895, the tax registers show that individuals wishing to gain title to property would present a certificate (ilmühaber) attesting to their longstanding control over that land issued by the “headmen” (muhtars) and elders’ councils of their respective communities. In 1904, the district administrative council’s involvement in this process also began to be listed, with individuals presenting documentation from both their local muhtars and the district administrative council at each new initial registration of title to miri land.36 At the end of each month the registers again include seals representing the myriad entities required to sanction these registrations and transactions as well as the collection of taxes based on them: at least one member of the administrative council, the financial director, the property administration official, the survey scribe, the mufti and the deputy judge, who as of 1892 was described as “deputy judge and president of the Salt Sales Commission.”37

In terms of the personnel involved in these procedures, the government entities referred to as councils—first the administrative council and the judicial council/court of first instance and, after 1895, a municipal council (meclis-i belediye) and a board of education (meclis-i maarif)—included by law semi-elected members from the local population in Salt.38 These semi-elected members were by and large from the town’s small “notable” class—they were largely merchants and landowners, and by the turn of the century they exercised a firm hold on the district’s administration.39 While the governors, bureaucrats, and judges appointed from Istanbul tended to serve for short terms lasting for a maximum of three years, there were particular local notables whose service as semi-elected members of various government councils and sometimes in bureaucratic positions spanned the thirty years covered by the yearbooks for the province of Syria, and most of the local notables who served did so for more than one term.40 Of the eighty men who rotated among the administrative council, the judicial council/court of first instance, the municipal council and board of education, eighty percent served more than one term, and forty-one percent served more than three terms. Therefore, although the councils and agencies local notables served on were legally subordinate to a district governor or deputy judge who was always from outside Salt, their local knowledge as well as their multiple terms of service must have afforded them extensive influence on the councils, and therefore in local government. In fact, they effectively took on bureaucratic positions themselves, becoming the foundation of local Ottoman government in Salt.41

The Sharia court registers also show that there was overlap between the personnel of the Sharia court and the town’s numerous councils, especially the judicial council/court of first instance.42

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