A Critical Edition and Analysis of ‘Ubaydullāh ibn ‘Abd al-Ghanī’s al-Nūr al-bādī fī aģkām al-arāēī

Abstract

Following the example of the distinguished Ģanafī scholar Abū Yūsuf, whose book titled Kitāb al-Kharāj was commissioned by Abbasid Caliph Hārūn al-Rashīd (d. 193/809), monographs on financial law, and on land property law in particular, were penned by scholars of various schools. The works that were usually titled Kitāb al-kharāj, Kitāb al-amwāl, al-Aģkām al-sulšāniyya and Aģkām al-arāēī are typical examples of this literature. These works were continuously pro-duced because Islamic land law was one of the most dynamic subjects of Islamic jurisprudence and legal principles were dispersed in various sections throughout doctrinal books. This article is a critical edition of a treatise titled al-Nūr al-bādī fī aģkām al-arādī, written by a Ģanafī scholar, ‘Ubaydullāh ibn ‘Abd al-Ghanī, who lived in Ottoman Egypt in the eighteenth century. This treatise is one of the last examples of the classical monographs on land law. We have no information on the author’s life in the sources except for, as expressed in the prologue, the school he belonged to and that he was alive at the time this treatise was issued. Based on our extensive research, the treatise has three different manuscripts in Dār al-Kutub al-Žāhiriyya, al-Maktabat al-Azhariyya and Imam Muhammad ibn Saud Islamic University. We compared all three manuscripts in this critical edition. ‘Ubaydullāh ibn ‘Abd al-Ghanī organized his treatise on the Ottoman land regime as a prologue, three main chapters and a conclusion. In the prologue, he states that he composed the treatise in the late Jumada II of 1211 (December 1796) upon the request of a friend. He introduces his chapters in three parts, each based on tithe (‘ushr), tribute (kharāj) and state (mīrī) lands. He examines the definition of the tithe lands and briefly the rules on these lands in the first chapter, and then discusses the tribute lands in the second chapter. The principal issues of the second chapter include the legal status of Egypt and Syria, the sultan’s authority to sell state lands and whether endowed lands are valid (ŝaģīģ) and binding (lāzim). He examines state lands (arāēī-i mīriyya), also called “confiscated lands” (arāēī-hawz) and “sultanic lands” (arāēī-i mamlakat), in the third chapter. Among the many issues discussed in this chapter, the rights of the sultan, fief holders and cultivators on state lands seem to be the most critical. The third chapter is the most comprehensive one probably because, as Shaykh al-Islāms and the Egyptian and Syrian scholars state, the majority of the Ottoman lands were state lands and people frequently appealed to the scholars for their legal opinions in cases of conflicts on lands. ‘Ubaydullāh ibn ‘Abd al-Ghanī’s treatise is important for two reasons: First, it is a text that includes primarily the opinions of the later Ģanafī jurists, the legal opinions of Shaykh al-Islāms and the laws promulgated by the sultans; and second, it was written by a jurist from Ottoman-Arab territory. The work shows that a scholar from this background appealed to the opinions of Shaykh al-Islāms and the sultanic laws. In fact, it is very rare for scholars from the same geographical background to write a book of this sort. As a matter of fact, the treatise seems to be the only example of its kind. However, unlike the scholars from Ottoman Arab lands, it is known that some scholar-bureaucrats who lived in the seventeenth and eighteenth centuries in the core lands of the empire, such as Üskûbî Pir Mehmed Efendi, Ahmed Akhisârî al-Rûmî and Ayn Ali Efendi, wrote works on land and tax law. The main sources of the treatise include the works of those prominent Ģanafī scholars in Egypt and Syria from sixteenth and seventeenth centuries: Ibn Nu-jaym’s (d. 970/1563) al-Tuģfa al-marēiyya, Haskafî’s (d. 1088/1677) al-Durr al-mukhtār and al-Durr al-muntaqā, Hayreddin al-Ramlī’s (d. 1081/1671) al-Fatāwā al-Khayriyya and ‘Abd al-Ghanī al-Nablusī’s al-Ģadīqa al-nadiyya. The treatise occasionally quotes pages from these sources. In addition, the legal opinions of some Shaykh al-Islāms are recorded by citations of their names. These Shaykh al-Islāms include: Kemalpaşazāde (d. 940/1534), Ebussuūd Efendi (d. 982/1573), Mehmed Bahāī Efendi (d. 1064/1654), Zekeriyazāde Yahya Efendi (d. 1053/1644) and Minkārīzāde Yahya Efendi (d. 1088/1678). Considering the legal opinions and laws mentioned in the treatise, one can observe that Kānūn-i Cedīd that regulate the Ottoman land and tax regime and Üskübī Pir Mehmed Efendi’s Žahīr al-quēāt are also among the sources of the treatise. No citations of this treatise prior to the last quarter of twentieth century have been located. From that time on, some researchers citing the treatise began to use it as an indispensable source for issues related to land in Anatolia, Syria and Egypt. Among them, however, Sabrina Joseph seems to be incorrect by attributing most of the legal opinions, laws and ideas mentioned in the treatise to the author. To the contrary, our extensive research into the origins of each sentence and judg-ment in the treatise reveals that it is rather a collection of legal opinions of Shaykh al-Islāms, sultanic laws and Hanafi scholars’ ideas on land issues in the empire, scarcely including any original interpretation that can be attributed to the author. Therefore, future researchers should not assume that the author penned each interpretation and opinion in the treatise. In addition to the points above, the work has various mistakes. We can classify these mistakes as “incorrect translations of legal opinions and laws into Arabic”, “attributions of legal opinions to wrong persons”, “contradictory judgments in the text” and “mentioning legal opinions that are contrary to the sultanic laws.” These mistakes show that a Hanafi jurist living in the Ottoman Arab lands in the eighteenth century had limited knowledge of the land codes promulgated by the sultans and the legal opinions of Shaykh al-Islāms. The reasons for these mistakes can be numerous, some of which are the following: 1) Language barrier: The author may be insufficiently in command of Ottoman Turkish. Translation mistakes in the treatise are the most important proof for this. 2) The manuscript copies collecting legal opinions of Shaykh al-Islāms. The manuscript copies consulted by the author may have attributed some legal opinions to the wrong persons. 3) Incorrect attribution of Kānūn-i Cedīd to Ebussuūd. The author by mistake assumed that this belonged to Ebussuūd and he may have considered some of the sultanic laws here as legal opinions belonging to Ebussuūd. Although the mistakes and repetitions in the treatise lead us to surmise that the text was simply the first draft of the author who had no chance to revisit it, we have no concrete evidence to substantiate this argument. We point out these mistakes and correct them in the footnotes. In addition, we reproduced the transcrip-tions and, if necessary, Arabic translations of the legal opinions and sultanic laws that we suggest the author mistook.