Law and Change: A Study of the Cultivation of Wasteland in the 16th-17th Century Ottoman Empire

Abstract

This article examines the nature of legal change in Islamic law through the case of the cultivation of wasteland (iḥyāʾ al-mawāt) in the 16th-17th century Ottoman Empire. Imber, one of the leading scholars in modern Ottoman historiography, argues that there was an incompatibility between qānūn and sharīʿah regarding the legal consequences of opening up wastelands (mawāts) for agriculture in the Empire. He asserts that the legal doctrine of the Ḥanafī school gives the right of full ownership (al-milk al-tāmm) to a person cultivating a wasteland with the permission of the ruler (imām), while the Ottoman sultans’ qānūns only grant this person the right of disposal (ḥaqq al-taṣarruf). Imber’s observation about the practice is accurate; however, his claim regarding the Ḥanafī school’s legal doctrine of iḥyāʾ al-mawāt needs revision. This article takes into consideration Ḥanafī nawāzil and fatāwá literature originating from Central Asia and Ottoman Anatolia to demonstrate that the doctrine in question underwent a slow and gradual but essential change over centuries, and then Ottoman Ḥanafī scholars interpreted the practice of the Empire based on this new doctrine, recognizing the sultan’s authority to grant only the right of disposal to those who wished to cultivate the wasteland, suggesting that there was not an actual contradiction between qānūn and sharīʿah on this issue.