Land-Use and Land-Ownership in Islamic Civilization
A study-kit for governments and NGOs by John Paul Maynard, legal anthropologist
Laws and practices relating to land-use and land-ownership are the mainspring of traditional Islamic civilization. These laws are rarely discussed, never analyzed, almost never mentioned, in books about the Islamic religion and its history. Why this is so is a question important in itself. We'll save that for the end. First, we will examine how these old laws and practices worked together, not just out in the villages, but in the cities as well. Far from being autocratic, fiqh and the shari'a grew up in dissidence to (Umayyad and more directly, to Abbasid) imperial power. A decentralized system falls easily to the centralized secular bureaucracy and army for several reasons. Eventually the state claimed all land, 'dead' and common, even private property, and taxed the capitalist life out of many communities..
The Seven Types of Land-holding in Islam
1. Mawat, or 'dead land' Land nobody owns, usually barren, unproductive. Muhammad said “Anyone who revives a piece of dead land, gets to own it.” First one stakes out a plot, then does one of four things: opens a well, plants vegetation, constructs a wall around the plot, or builds a house, corral or workshop. After a few years, the land becomes yours. You get a deed, and must now pay taxes.
2. Mulk land – simple private ownership, usually by a man. But his heirs are all his family. In other words, his wife and daughters and mother and sisters (if they live there) all get a tranche, a slice, a share, of ownership.
3. Mirri land – land owned by the community and later, by the state. The typical Islamic city has a maidan next to it, a large lawn of grass where shepherds can feed their animals while at market. The maidan is mirri land. So also are places like springs, wells, river fords, upland pastures, the shores of rivers and the sea. As they did in the 18th Britain, the big men, the state, seized the commons.
4. 'Iqta – land bestowed by the emir or caliph. Usually heritable but subject to re-appropriation by the emir. This is not feudalism per se. Early on, Muslim ghazis (warriors for the faith) were prohibited from expropriating or even buying, any enemy land or property. Obviously this caused Islam to be welcomed by non-Muslims, while causing revolts amongst the Muslim soldiers, who had families to provide for. Many of these warriors would take part in the founding, almost overnight, of new cities - Baghdad, Kufa, Fustat, and Marrakesh. In these new cities, 'iqta could be awarded to numerous local citizens, not just given to family members, cronies and commanders. Some land lords were highly inventive in how they used their properties: mixed farming, new seeds and crops, livestock breeding, small industries, welfare institutions, and long-range trade. Others were corrupt, negligent.
5. Waqf land – land bestowed by individuals for creating a religious or social institutions, such as schools, hostels, hospices, monasteries for sufis, mosques, cemeteries, caravansaries, and hospitals. These properties are dedicated 'forever' simply by stating the dedication three times in front of two witnesses. In consequence, most (old) Islamic towns and cities contain many waqf properties. Some excellent institutions were created and maintained, serving the poor, the sick, travellers, the dying and the dervishes – sufis. But too much waqf property dampens and constrains economic activity. Waqf takes the land off the market. Only sometimes do waqf properties remain true to their original intent. It is all too easy for the clergy managers to just rent out the land or building. Or just let it decay. Modern Muslim states all have ministries of auqaf, (plural of waqf), who manage the managers of auqaf. In short, Muslim societies could create welfare organs without the state.
6. Ijare land – rented or leased land. This is the same as in the West, short-term rents and long-term leases. Problems arise when improvements are made, orchards planted, wells opened. In fiqh and shari'a the renter could claim these improvements. Multiple ownership is no stranger to the algebra-equipped Muslims. Ownership in Islam is often divided. Two owners of one place may become partners in a larger common enterprise. If a bank lends money, it too becomes a partner.
7. Muzara'a land – land being sharecropped. A farmer contracts with a land owner, grows a crop, the landlord taking a portion of the harvest. That portion kept increasing, with disastrous results: the impoverishment of millions.
There is also land being revived, which becomes privately owned, or in Arabic, mulk. This land-in-transition is called 'ihya, or 'revived.' In addition there exist merchants' offices and warehouses. (called tijaratkhane in old Persia). These institutions rent rooms very cheaply, and are hotbeds for the hatching of capitalism 'plots' and long-distance trade. As for networking, Muslims did it better, it seems, without electricity.
PART TWO: The maps. Property maps are rare in the Muslim world, and paper, of course, was not much used, as such documents, even deeds, can be so easily forged or used to trick illiterate people. Islamic law accepts paper documents but qualifies them in ways we in the West do not. Ownership is verified by testimony from neighbors. Note: NATO and Afghan army units in Afghanistan know this reality very well, by now.
Let me list the questions in play:
- (1) Where did these Islamic laws really come from?
- (2) Are these seven ways of holding the land a stable array?, a system? A spectrum?
- (3) Does the system degenerate or alternate in environmental and social cycles?
- (4) What has been the impact of imperial power on land use and land ownership in the Muslim world? Is there a political cycle?
- (5) How do joint ventures form, get set up, as a result of shared land ownership?
- (6) How does the Islamic system aid private enterprise?
- (7) Finally, can these laws be of any utility in modern age?
We will come back to these questions in Part Four.
PART THREE: Cycles of Change in Islamic land-use and -ownership
How does this ancient system change and adapt when up against the state? Strong urban-based war lords with their henchmen and security, can seldom resist the temptation to impose themselves top down onto this delicate localized system based on ancient custom. The modern state is no different. Indigenous people everywhere barely survive. Revolutions come and states recast themselves, not every generation, but every few years or so.
In Islam, the heirs are many; but this does not in itself fragment estates. Instead, all the children, the wives and sisters, and the old folks – are all legal heirs. However, property deeds (if existent), usually mention just a single male, or brothers; but, legally, before the proper Muslim court, all family members have a tranche, a share.
Dead land gets revived, while land once revived, is abandoned, returning to dead land, which no one owns; until someone stakes it out and starts to develop it.
Common lands (mirri) are taken over by big private operators, friends and family of the emir, the caliph, or, later, by the more abstract state. This syndrome has been well studied in Britain (the field enclosure process.)
Land held by 'iqta, is land given by the emir for service. But if the land is neglected, the emir might take it back. Quite often the land revert back to the townspeople when the emir dies, or the state retracts or falls altogether. Sons and daughters, his whole household, including even his slaves, may inherit, but this is not certain, or backed by law, as 'iqta land is not private land.
Dedicated property (waqf) provides facilities that can make social welfare possible without state intervention. Those services range from caring for travellers and students, to mental hospitals, wells, libraries, small mosques, tombs of holy men and women, lodges for the dervishes, the homeless. Or a big kitchen - a free meal every day, and place to sleep.
But waqf property accumulates. After a few hundred years, as much as 2/3rds of a town's property might be 'dedicated forever.' This stifles the economy because so much property is taken off the market. Often the mullah is not able to keep up maintenance, so the buildings decay and must be torn down. In some cases, the mullahs just rent waqf properties out, pocketing the money, which is, of course, corruption, and recognized as such by the people.
In modern times, the state confiscates all land except mulk, which was taxed. The state became a potential developer. But these well-intended interventions from the top, are not nearly as effective or as a healthy, vibrant Islamic market. There one buys shares in all kinds of things, pooling capital for, say, long distance trade. Even poor people, orphans and women have ownership shares in the homes of their parents, rights to a home which are inalienable. This cuts anxiety and desperation, so the home becomes a platform for new, far-reaching ventures.
Now we'll go back and address the earlier questions in Part Two.
PART FOUR: Questions Pertaining to a Social Spectrum of Use and Ownership
1. Where do these land laws come from?
From the Neolithic, beginning roughly 10,000 years ago, when agriculture led communities to settle, and a bit later, when nomads evolved stock breeding. The two Neolithic life-ways were sometimes in conflict, but they had more reasons to trade. That meant co-operation, even joint ventures. So there evolved a set of 'understandings' which became 'custom' and eventually laws. The nomads may have been the barbarian enemies of civilization, but all in all, they contributed more than they took. The imperial armies used them as 'spear tips.' In fact, animals were critical. Mixed agriculture uses animals manure to fertilize crops, the stubble of which is eaten by the flocks and herds. There were other opportunities for nomads and farmers to come together, to get rich or to manage resources held in common. Long distance merchants needed safe, open roads. Finally, the laws relating to land improvement or 'ihya 'land-revivification,' offered a huge reward for anyone willing to work to improve the land – ownership.
2. Are these laws a spectrum, a system?
A spectrum implies an array of seven 'stops.' A spectrum is also a process, one in which the seven elements bear simple mathematics ratios with each other. That is to say, the octave is internally organized, each 'tone' or 'note' joining the others to produce social harmony, 'the melodies of prosperity,' or just survival. Since these land laws have characterized the Middle East for some 10,000 years, we might call it stable, durable. For though the big men and, later, state move in, confiscating the common lands, the local people know that these big men die early; that the sons are profligate. As soon as the regime loosens its grip, this older 'Islamic' system re-emerges. It's perennial.
The spectral organization suggests seven parts playing together synergistically. Taxes are collected by the village headman, who sends some of it up to the emir, but saves some to invest locally, say, in the improvement of mirri or commonly-owned structures, resources and lands. He might even bankroll a marketing scheme, e.g., co-ordinating transport to send local produce to distant markets.
Out of these seven, three relate to private ownership (mulk, ijare and muzara'a), and four serve the collective ('iqta, mirri, waqf, mawat). Growth occurs when public, collective ownership serves the small entrepreneur, or business family, who, in turn, can't trash the land. The market square is considered mawat or 'dead land' which can be revived by anyone who spreads a blanket. The old women with just three eggplants, can be there and make a sale with the same access to the market as SONY or Siemens.
3.How does the Islamic land system alternate and change in time?
Muhammad enshrined custom and used Medina as a prototype of a model Islamic system. That polity was quickly stressed by emirs and caliphs, their families and henchmen. Common land was taken over, fields were enclosed. Taxes reduced the small farmer to bare subsistence. Sharecroppers received less and less of their harvest. Big estates working slaves so undercut the price of grain that small farmers went belly-up, losing their homes, to drift into the cities.
In Arabic, the word for government (daulat) is the same for 'turning', for 'revolving,' as in revolution. Big governments collapse, emirs die, the land reverts back to the communities; workers and managers return from the capital city with resources and special knowledge. Then we see the Islamic system re-emerge. Taxes fall off. No big government interferes in the market. The rich do not prevent or co-opt ownership of resources. That ownership was extended as widely as possible, so everyone had a share, be it in property or in joint ventures.
4. How did empire and the modern state impact on Islamic lifeways?:
Emir and caliph exerted their own pressures – the annexation of common lands, to be given out to cronies and protegees. The imperial system, with its bureaucracy, ruthlessly collected taxes, taxes based on the land, and long-distance trade. The nascent proto-state conscripts young men, commands corvee labor, capitalizes on monopolies, and extracts all kinds of resources.
But in better times, during peace, the state might establish a currency, spread the money around, train artisans, breeders, and engineers; even receive and send merchants – a vital part of diplomacy. The empire was a tolerant world made up of diverse ethnicities and religions. To some extent, 'citizens' were willing to fight and die for the empire's ideals. The Romans, who were not a nomad people, turned empire into a religion, with a temple in every town, to which every citizen had to attend and vow allegiance. But in the end the nomads inherited the whole thing, leading to the high barbarian cultures of Europe. Sedentary farmers in Scandinavia became sea nomads, while Charlemagne put Alans at the tip of his cavalry wedge. The crenelated crown of European kings is, of course, the Parthian crown. The divine right of kings was passed on, along with fancy metal work. In short, the mature empire was sacred. It not only integrated many tribes and towns, but made them prosperous citizens in a whole world, a world that naturally stood above ethnic and sectarian identifications.
The empires I speak of were the Abbasid (Sunni, then Shi'i), the Seljuks (sunni Turks), the Persians of Bukhara (Samanids) and before that, Balkh; the Fatimid (Shi'i, Ishmaeli), the Mogul (sunni in N. India), the Umayyads in Andalus, and the Ottomans, both sunni.
Note: In the early 19th century, the Ottomans reformed the shari'a, modernizing much of it. Sections of this imperial up-date have been translated from Turkish and published in European languages. This attempt at modernizing kept close to the original Muhammad, and recognizes these ancient land laws, put in place during the Neolithic, when farmers, nomads and traders worked out the laws. Islam and Judaism, too, carry on this old way. So did the Sumerians and the Hittites.
A BRIEF REFERENCE TO INNER ASIA -
We omitted the Mongols. In a way, they did it better than anybody else. Freedom of religion pulled in many intelligent people, technology was accrued and perfected, many sects and tribes and settled city folk mixed, plus all the infrastructure, the caravansaries on the Silk Road, the postal system, the great tent cities of Karakoram all this was critical. The main thing, however, was the transfer of technology from China to Europe and the Middle East.
The Mongols had their own native codes of land-use and ownership, the Yasa. But it's similar to the shari'a, which enshrined those land laws to help nomads and farmers and traders work symbiotically.
The United States has been called an empire. It used the same land-revivification laws to settle the west, the Homesteading incentives. If you improve land, you own it. One can still homestead in Alaska. Like the Mongols, these laws were popular, allowing people with few assets, or no assets, to improve the land and eventually to own their homes. Both empires cherished and enforce, freedom of religion. Like the Mongols, numerous tribes and sects and artisan guilds came together in America to be caste in new combinations. Like the Mongols, the American people are nomadic, if not in residence, then in work. They both elect their leaders. They both produced continent-wide polities. Their armies used rockets and high explosives, 'shock and awe.' Both discovered news uses of paper. Both encouraged trade, long distance commerce. Both hated big government. That utter disgust with hypocritcal clergies was as much a part of the Mongols as it is in Euro-America. It was virulent statism in Germany and Japan that caused the Mongols to target them. Even as the Mongol empire broke up, these attacks went through.
5. How did, does, the Islamic system encourage and support business?
The genius of the Islamic economy stems from old customary practices in land-use and land-ownership. Capitalism began in the Middle East thousands of years before Islam. Most every family was a firm, and these family companies enjoyed a high degree of security, as trusted family members opened branches in other regions, even overseas. The family firm might be able to access international capital and markets, hence its role in the pooling of capital, and its concentration on joint ventures and public-private enterprises.
The bank joined the entrepreneurs as another partner. A typical venture might involve 20 investors, and three banks. Even at this early date, land ownership and risky long-distance trade, involved buying and holding shares. By this way risk was narrowed, shared, while ownership was distributed right down the line. The caliphs encouraged business start-ups and gave ownership to the landless lower classes, refugees, retired soldiers, so that taxes might be collected from them.
The ingenious formula for reviving 'dead' land was applied to the urban environment. Cities could be established within months, from scratch, by permitting the homeless to stake out plots of land, 'revive the land' by building on it, or planting something or by opening a well. They then come to own these plots. Many used these plots to launch businesses. Often urban builders used existing walls, building houses off their neighbor's, giving rise to the typical medina with its labyrinth of alleyways. That labyrinth seems so organic, something from Nature, not from women, men. It is.
The market square itself was considered 'dead land' – no one owns it. So it can be revived, temporarily, by anyone who spreads a blanket. The old woman with two egg plants will have a place at the market, guaranteed. Business exchange and development were even more fluid, more free, more flexible and daring, more finely grained and more pervasive, in the Islamic town, than in its American or European counterparts. And any study of this maximizing economy needs start with land. Because there was, traditionally, no national state, there were very few taxes. This permitted the rapid aggregation of capital while political initiatives, expansion and incorporation of new Muslims, opened up new markets, making new ventures highly lucrative. With caravansaries, hostels, and mosques serving food for free, the whole of Islam was open to travellers trading things and/or ideas.Islamic business law frowns on making money off money. Banks lend money, but take no interest. Rather they receive shares in the enterprise. New businesses get solid support and expertise, from their banks. As for the poorer young father with no assets, he can enter business with no permission, no license, and no overhead. The market is free. The roadsides are free. No one owns them.
A new understanding of nomadism: My history teacher at Harvard, Joseph Fletcher, was clever in showing how nomadic pressures from Inner Asia, like the Huns, impacted decisively on the formation of the European nations and various northern Chinese states. Our experience and research validates these ideas, but goes farther, claiming that nomads were important in peace, as well. Nomads had an imperial talent: They looked after the settled folk in much the same way they looked after their sheep and goats. Farming, pastoralism and trade combined to make some empires lively, prosperous 'systems.' Highly successful. The Ottoman Empire originated as a nomadic protection racket but after the Turks took Constantinople in 1453, it matured, to typify the mature classical empire. At one point, Istanbul ruled from eastern Iran to Morocco; from Yemen in the south, to the Sea of Azov in the north.
Like any empire, it featured ethnic and sectarian diversity. The milli or 'sectarian nation' system, whereby religious leaders were to reside in Istanbul, coming to know their counterparts in other religions, induced 400 years of peace. One exception was the caliph's wars against Shi'i rebels, backed by Iran, in eastern Anatolia. Another was Russia. The Osmanlis needed some magic, just as did the Old Persians, and the Romans, in order to make non-Muslims loyal citizens.
The Ottoman Empire, following the rashidun caliphs, did not give ownership of land to its Muslim warriors. Janissaries were to have no base ambitions, no greed. The Timar, wrongly translated as 'fief,' is better defined as a corporation: farms, mines and forests were all timars. It was the job of the army, the janissaries, to manage, supervise and protect them. The Mongols did the same thing.
It should not surprise us that the greatest, most useful, empires were run by nomads. Nomadism was, is, a more complicated lifeway than farming. The Sumerians were either horse nomads or sea nomads. The Greeks, the Dorians, were Central Asian tribes living on the northwest edge of the Caspian Sea. Persians, Seljuk, Osmanli are good examples, while the Mongols is probably the best example.
The nomads bring much, but nomads do require some contact with settled folk. There are examples of the lifeways co-operating, not just for security and trade but to improve infrastructure, collect seeds, breed and introduce new kinds of sheep, goats, camels and horses; to build bridges and roads, hospitals and hospices. Back in the days of Muhammad, many Arab bedouin and other nomads, started settling down. But it also happened in reverse: settled people reverted back to stock-raising, to semi- or full pastoralism.
Muslim law guarantees rights to non-Muslims. Their land was no confiscated, their young men not conscripted. In return, non-Muslims (dhimmies) paid a tax of 6% of income and/or assets. Were the first four caliphs following Muhammad's instructions, that these foreign societies not be molested? Probably not. Muhammad had no dreams or plans of conquest, and died before Muslim armies left Arabia. The Muslims understood that, economically, it would be best not to molest settled communities, rightly seeing that such interference would freeze commerce, violate laws and prevent joint ventures - trade. Also, Muhammad's law of land revivification made economic development possible. When Muhammad died in 632 AD, Arab armies prepared for liberating Arabs in Byzantine Damascus and Palestine. Once these settled people knew that the Muslims armies were not going to change anything, except imperial oppression, Islam spread like wildfire.
6. Why does the system prove resilient?
The emir and later the state may annex the land and usurp authority, tax and conscript the young men, but villagers and townspeople know that these dynastic emperors and emirs, always die. In Arabic the word for government is daulat, which means 'turning,' or 'revolving' implying a a rise and a fall. So even today old Islamic ways of using, sharing and owning the land re-emerge from the failure of the state to offer services: an impartial legal system, security, resources, re-occupying empty estates, squatting, constructing new neighborhoods overnight. Some aspects of the Islamic land-ownership spectrum, have particular relevance to today. Land should be offered to those who improve it. There must exist incentives for those marginalized to work themselves back into the economy. Joint ventures, the pooling of talent and capital led Islamic communities to evolve their own forms of capitalism. Making money off money just will not do. Monopolies, the fixing of prices, the re-selling of mortgages, speculation – these have no place in the Islamic system, though they can be found today in the wealthy, westernized stratum of each modern Muslim nation.
7. Can these laws be of use in the modern age?
All through history we see a desperate attempt by elites to centralize their power. Such schemes, backed by taxation and conscription, plus an army and a bureaucracy, appear to gather together capital, focus it, then invest in projects. But this does not happen always or even often. Most resources go to the army, then to reward cronies and family, then on new estates, palaces, mosques and churches. Artisans providing luxury goods may prosper, but clearly, the money is not being used in a socially integrative way, that is, it's not making its way all through the people. Quite the contrary.
Decentralization of power leads to democracy. Decentralization of capital, is all but synonymous with prosperity. Communities know better than anyone how surplus funds might be invested. Earlier, this surplus was not invested directly, but distributed as gifts. In those countries, people have grown to expect these hand-outs. The enterprising spirit fades, as poverty sets in. So where are they distributing salaries?
As for why these laws are largely unknown to scholars, one has to consider the modern state. It expropriated, replaced these old Islamic laws, without study or comment. We are all children of that modern state, so cannot conceive of another way. Muslim scholars also overlooked these very earthy customary practices, preferring symbolic appeal to actual social improvement. It is as if their feet no longer touched the ground. -JPM
www.middleeastspeculum.blogspot.com
A study-kit for governments and NGOs by John Paul Maynard, legal anthropologist
Laws and practices relating to land-use and land-ownership are the mainspring of traditional Islamic civilization. These laws are rarely discussed, never analyzed, almost never mentioned, in books about the Islamic religion and its history. Why this is so is a question important in itself. We'll save that for the end. First, we will examine how these old laws and practices worked together, not just out in the villages, but in the cities as well. Far from being autocratic, fiqh and the shari'a grew up in dissidence to (Umayyad and more directly, to Abbasid) imperial power. A decentralized system falls easily to the centralized secular bureaucracy and army for several reasons. Eventually the state claimed all land, 'dead' and common, even private property, and taxed the capitalist life out of many communities..
The Seven Types of Land-holding in Islam
1. Mawat, or 'dead land' Land nobody owns, usually barren, unproductive. Muhammad said “Anyone who revives a piece of dead land, gets to own it.” First one stakes out a plot, then does one of four things: opens a well, plants vegetation, constructs a wall around the plot, or builds a house, corral or workshop. After a few years, the land becomes yours. You get a deed, and must now pay taxes.
2. Mulk land – simple private ownership, usually by a man. But his heirs are all his family. In other words, his wife and daughters and mother and sisters (if they live there) all get a tranche, a slice, a share, of ownership.
3. Mirri land – land owned by the community and later, by the state. The typical Islamic city has a maidan next to it, a large lawn of grass where shepherds can feed their animals while at market. The maidan is mirri land. So also are places like springs, wells, river fords, upland pastures, the shores of rivers and the sea. As they did in the 18th Britain, the big men, the state, seized the commons.
4. 'Iqta – land bestowed by the emir or caliph. Usually heritable but subject to re-appropriation by the emir. This is not feudalism per se. Early on, Muslim ghazis (warriors for the faith) were prohibited from expropriating or even buying, any enemy land or property. Obviously this caused Islam to be welcomed by non-Muslims, while causing revolts amongst the Muslim soldiers, who had families to provide for. Many of these warriors would take part in the founding, almost overnight, of new cities - Baghdad, Kufa, Fustat, and Marrakesh. In these new cities, 'iqta could be awarded to numerous local citizens, not just given to family members, cronies and commanders. Some land lords were highly inventive in how they used their properties: mixed farming, new seeds and crops, livestock breeding, small industries, welfare institutions, and long-range trade. Others were corrupt, negligent.
5. Waqf land – land bestowed by individuals for creating a religious or social institutions, such as schools, hostels, hospices, monasteries for sufis, mosques, cemeteries, caravansaries, and hospitals. These properties are dedicated 'forever' simply by stating the dedication three times in front of two witnesses. In consequence, most (old) Islamic towns and cities contain many waqf properties. Some excellent institutions were created and maintained, serving the poor, the sick, travellers, the dying and the dervishes – sufis. But too much waqf property dampens and constrains economic activity. Waqf takes the land off the market. Only sometimes do waqf properties remain true to their original intent. It is all too easy for the clergy managers to just rent out the land or building. Or just let it decay. Modern Muslim states all have ministries of auqaf, (plural of waqf), who manage the managers of auqaf. In short, Muslim societies could create welfare organs without the state.
6. Ijare land – rented or leased land. This is the same as in the West, short-term rents and long-term leases. Problems arise when improvements are made, orchards planted, wells opened. In fiqh and shari'a the renter could claim these improvements. Multiple ownership is no stranger to the algebra-equipped Muslims. Ownership in Islam is often divided. Two owners of one place may become partners in a larger common enterprise. If a bank lends money, it too becomes a partner.
7. Muzara'a land – land being sharecropped. A farmer contracts with a land owner, grows a crop, the landlord taking a portion of the harvest. That portion kept increasing, with disastrous results: the impoverishment of millions.
There is also land being revived, which becomes privately owned, or in Arabic, mulk. This land-in-transition is called 'ihya, or 'revived.' In addition there exist merchants' offices and warehouses. (called tijaratkhane in old Persia). These institutions rent rooms very cheaply, and are hotbeds for the hatching of capitalism 'plots' and long-distance trade. As for networking, Muslims did it better, it seems, without electricity.
PART TWO: The maps. Property maps are rare in the Muslim world, and paper, of course, was not much used, as such documents, even deeds, can be so easily forged or used to trick illiterate people. Islamic law accepts paper documents but qualifies them in ways we in the West do not. Ownership is verified by testimony from neighbors. Note: NATO and Afghan army units in Afghanistan know this reality very well, by now.
Let me list the questions in play:
- (1) Where did these Islamic laws really come from?
- (2) Are these seven ways of holding the land a stable array?, a system? A spectrum?
- (3) Does the system degenerate or alternate in environmental and social cycles?
- (4) What has been the impact of imperial power on land use and land ownership in the Muslim world? Is there a political cycle?
- (5) How do joint ventures form, get set up, as a result of shared land ownership?
- (6) How does the Islamic system aid private enterprise?
- (7) Finally, can these laws be of any utility in modern age?
We will come back to these questions in Part Four.
PART THREE: Cycles of Change in Islamic land-use and -ownership
How does this ancient system change and adapt when up against the state? Strong urban-based war lords with their henchmen and security, can seldom resist the temptation to impose themselves top down onto this delicate localized system based on ancient custom. The modern state is no different. Indigenous people everywhere barely survive. Revolutions come and states recast themselves, not every generation, but every few years or so.
In Islam, the heirs are many; but this does not in itself fragment estates. Instead, all the children, the wives and sisters, and the old folks – are all legal heirs. However, property deeds (if existent), usually mention just a single male, or brothers; but, legally, before the proper Muslim court, all family members have a tranche, a share.
Dead land gets revived, while land once revived, is abandoned, returning to dead land, which no one owns; until someone stakes it out and starts to develop it.
Common lands (mirri) are taken over by big private operators, friends and family of the emir, the caliph, or, later, by the more abstract state. This syndrome has been well studied in Britain (the field enclosure process.)
Land held by 'iqta, is land given by the emir for service. But if the land is neglected, the emir might take it back. Quite often the land revert back to the townspeople when the emir dies, or the state retracts or falls altogether. Sons and daughters, his whole household, including even his slaves, may inherit, but this is not certain, or backed by law, as 'iqta land is not private land.
Dedicated property (waqf) provides facilities that can make social welfare possible without state intervention. Those services range from caring for travellers and students, to mental hospitals, wells, libraries, small mosques, tombs of holy men and women, lodges for the dervishes, the homeless. Or a big kitchen - a free meal every day, and place to sleep.
But waqf property accumulates. After a few hundred years, as much as 2/3rds of a town's property might be 'dedicated forever.' This stifles the economy because so much property is taken off the market. Often the mullah is not able to keep up maintenance, so the buildings decay and must be torn down. In some cases, the mullahs just rent waqf properties out, pocketing the money, which is, of course, corruption, and recognized as such by the people.
In modern times, the state confiscates all land except mulk, which was taxed. The state became a potential developer. But these well-intended interventions from the top, are not nearly as effective or as a healthy, vibrant Islamic market. There one buys shares in all kinds of things, pooling capital for, say, long distance trade. Even poor people, orphans and women have ownership shares in the homes of their parents, rights to a home which are inalienable. This cuts anxiety and desperation, so the home becomes a platform for new, far-reaching ventures.
Now we'll go back and address the earlier questions in Part Two.
PART FOUR: Questions Pertaining to a Social Spectrum of Use and Ownership
1. Where do these land laws come from?
From the Neolithic, beginning roughly 10,000 years ago, when agriculture led communities to settle, and a bit later, when nomads evolved stock breeding. The two Neolithic life-ways were sometimes in conflict, but they had more reasons to trade. That meant co-operation, even joint ventures. So there evolved a set of 'understandings' which became 'custom' and eventually laws. The nomads may have been the barbarian enemies of civilization, but all in all, they contributed more than they took. The imperial armies used them as 'spear tips.' In fact, animals were critical. Mixed agriculture uses animals manure to fertilize crops, the stubble of which is eaten by the flocks and herds. There were other opportunities for nomads and farmers to come together, to get rich or to manage resources held in common. Long distance merchants needed safe, open roads. Finally, the laws relating to land improvement or 'ihya 'land-revivification,' offered a huge reward for anyone willing to work to improve the land – ownership.
2. Are these laws a spectrum, a system?
A spectrum implies an array of seven 'stops.' A spectrum is also a process, one in which the seven elements bear simple mathematics ratios with each other. That is to say, the octave is internally organized, each 'tone' or 'note' joining the others to produce social harmony, 'the melodies of prosperity,' or just survival. Since these land laws have characterized the Middle East for some 10,000 years, we might call it stable, durable. For though the big men and, later, state move in, confiscating the common lands, the local people know that these big men die early; that the sons are profligate. As soon as the regime loosens its grip, this older 'Islamic' system re-emerges. It's perennial.
The spectral organization suggests seven parts playing together synergistically. Taxes are collected by the village headman, who sends some of it up to the emir, but saves some to invest locally, say, in the improvement of mirri or commonly-owned structures, resources and lands. He might even bankroll a marketing scheme, e.g., co-ordinating transport to send local produce to distant markets.
Out of these seven, three relate to private ownership (mulk, ijare and muzara'a), and four serve the collective ('iqta, mirri, waqf, mawat). Growth occurs when public, collective ownership serves the small entrepreneur, or business family, who, in turn, can't trash the land. The market square is considered mawat or 'dead land' which can be revived by anyone who spreads a blanket. The old women with just three eggplants, can be there and make a sale with the same access to the market as SONY or Siemens.
3.How does the Islamic land system alternate and change in time?
Muhammad enshrined custom and used Medina as a prototype of a model Islamic system. That polity was quickly stressed by emirs and caliphs, their families and henchmen. Common land was taken over, fields were enclosed. Taxes reduced the small farmer to bare subsistence. Sharecroppers received less and less of their harvest. Big estates working slaves so undercut the price of grain that small farmers went belly-up, losing their homes, to drift into the cities.
In Arabic, the word for government (daulat) is the same for 'turning', for 'revolving,' as in revolution. Big governments collapse, emirs die, the land reverts back to the communities; workers and managers return from the capital city with resources and special knowledge. Then we see the Islamic system re-emerge. Taxes fall off. No big government interferes in the market. The rich do not prevent or co-opt ownership of resources. That ownership was extended as widely as possible, so everyone had a share, be it in property or in joint ventures.
4. How did empire and the modern state impact on Islamic lifeways?:
Emir and caliph exerted their own pressures – the annexation of common lands, to be given out to cronies and protegees. The imperial system, with its bureaucracy, ruthlessly collected taxes, taxes based on the land, and long-distance trade. The nascent proto-state conscripts young men, commands corvee labor, capitalizes on monopolies, and extracts all kinds of resources.
But in better times, during peace, the state might establish a currency, spread the money around, train artisans, breeders, and engineers; even receive and send merchants – a vital part of diplomacy. The empire was a tolerant world made up of diverse ethnicities and religions. To some extent, 'citizens' were willing to fight and die for the empire's ideals. The Romans, who were not a nomad people, turned empire into a religion, with a temple in every town, to which every citizen had to attend and vow allegiance. But in the end the nomads inherited the whole thing, leading to the high barbarian cultures of Europe. Sedentary farmers in Scandinavia became sea nomads, while Charlemagne put Alans at the tip of his cavalry wedge. The crenelated crown of European kings is, of course, the Parthian crown. The divine right of kings was passed on, along with fancy metal work. In short, the mature empire was sacred. It not only integrated many tribes and towns, but made them prosperous citizens in a whole world, a world that naturally stood above ethnic and sectarian identifications.
The empires I speak of were the Abbasid (Sunni, then Shi'i), the Seljuks (sunni Turks), the Persians of Bukhara (Samanids) and before that, Balkh; the Fatimid (Shi'i, Ishmaeli), the Mogul (sunni in N. India), the Umayyads in Andalus, and the Ottomans, both sunni.
Note: In the early 19th century, the Ottomans reformed the shari'a, modernizing much of it. Sections of this imperial up-date have been translated from Turkish and published in European languages. This attempt at modernizing kept close to the original Muhammad, and recognizes these ancient land laws, put in place during the Neolithic, when farmers, nomads and traders worked out the laws. Islam and Judaism, too, carry on this old way. So did the Sumerians and the Hittites.
A BRIEF REFERENCE TO INNER ASIA -
We omitted the Mongols. In a way, they did it better than anybody else. Freedom of religion pulled in many intelligent people, technology was accrued and perfected, many sects and tribes and settled city folk mixed, plus all the infrastructure, the caravansaries on the Silk Road, the postal system, the great tent cities of Karakoram all this was critical. The main thing, however, was the transfer of technology from China to Europe and the Middle East.
The Mongols had their own native codes of land-use and ownership, the Yasa. But it's similar to the shari'a, which enshrined those land laws to help nomads and farmers and traders work symbiotically.
The United States has been called an empire. It used the same land-revivification laws to settle the west, the Homesteading incentives. If you improve land, you own it. One can still homestead in Alaska. Like the Mongols, these laws were popular, allowing people with few assets, or no assets, to improve the land and eventually to own their homes. Both empires cherished and enforce, freedom of religion. Like the Mongols, numerous tribes and sects and artisan guilds came together in America to be caste in new combinations. Like the Mongols, the American people are nomadic, if not in residence, then in work. They both elect their leaders. They both produced continent-wide polities. Their armies used rockets and high explosives, 'shock and awe.' Both discovered news uses of paper. Both encouraged trade, long distance commerce. Both hated big government. That utter disgust with hypocritcal clergies was as much a part of the Mongols as it is in Euro-America. It was virulent statism in Germany and Japan that caused the Mongols to target them. Even as the Mongol empire broke up, these attacks went through.
5. How did, does, the Islamic system encourage and support business?
The genius of the Islamic economy stems from old customary practices in land-use and land-ownership. Capitalism began in the Middle East thousands of years before Islam. Most every family was a firm, and these family companies enjoyed a high degree of security, as trusted family members opened branches in other regions, even overseas. The family firm might be able to access international capital and markets, hence its role in the pooling of capital, and its concentration on joint ventures and public-private enterprises.
The bank joined the entrepreneurs as another partner. A typical venture might involve 20 investors, and three banks. Even at this early date, land ownership and risky long-distance trade, involved buying and holding shares. By this way risk was narrowed, shared, while ownership was distributed right down the line. The caliphs encouraged business start-ups and gave ownership to the landless lower classes, refugees, retired soldiers, so that taxes might be collected from them.
The ingenious formula for reviving 'dead' land was applied to the urban environment. Cities could be established within months, from scratch, by permitting the homeless to stake out plots of land, 'revive the land' by building on it, or planting something or by opening a well. They then come to own these plots. Many used these plots to launch businesses. Often urban builders used existing walls, building houses off their neighbor's, giving rise to the typical medina with its labyrinth of alleyways. That labyrinth seems so organic, something from Nature, not from women, men. It is.
The market square itself was considered 'dead land' – no one owns it. So it can be revived, temporarily, by anyone who spreads a blanket. The old woman with two egg plants will have a place at the market, guaranteed. Business exchange and development were even more fluid, more free, more flexible and daring, more finely grained and more pervasive, in the Islamic town, than in its American or European counterparts. And any study of this maximizing economy needs start with land. Because there was, traditionally, no national state, there were very few taxes. This permitted the rapid aggregation of capital while political initiatives, expansion and incorporation of new Muslims, opened up new markets, making new ventures highly lucrative. With caravansaries, hostels, and mosques serving food for free, the whole of Islam was open to travellers trading things and/or ideas.Islamic business law frowns on making money off money. Banks lend money, but take no interest. Rather they receive shares in the enterprise. New businesses get solid support and expertise, from their banks. As for the poorer young father with no assets, he can enter business with no permission, no license, and no overhead. The market is free. The roadsides are free. No one owns them.
A new understanding of nomadism: My history teacher at Harvard, Joseph Fletcher, was clever in showing how nomadic pressures from Inner Asia, like the Huns, impacted decisively on the formation of the European nations and various northern Chinese states. Our experience and research validates these ideas, but goes farther, claiming that nomads were important in peace, as well. Nomads had an imperial talent: They looked after the settled folk in much the same way they looked after their sheep and goats. Farming, pastoralism and trade combined to make some empires lively, prosperous 'systems.' Highly successful. The Ottoman Empire originated as a nomadic protection racket but after the Turks took Constantinople in 1453, it matured, to typify the mature classical empire. At one point, Istanbul ruled from eastern Iran to Morocco; from Yemen in the south, to the Sea of Azov in the north.
Like any empire, it featured ethnic and sectarian diversity. The milli or 'sectarian nation' system, whereby religious leaders were to reside in Istanbul, coming to know their counterparts in other religions, induced 400 years of peace. One exception was the caliph's wars against Shi'i rebels, backed by Iran, in eastern Anatolia. Another was Russia. The Osmanlis needed some magic, just as did the Old Persians, and the Romans, in order to make non-Muslims loyal citizens.
The Ottoman Empire, following the rashidun caliphs, did not give ownership of land to its Muslim warriors. Janissaries were to have no base ambitions, no greed. The Timar, wrongly translated as 'fief,' is better defined as a corporation: farms, mines and forests were all timars. It was the job of the army, the janissaries, to manage, supervise and protect them. The Mongols did the same thing.
It should not surprise us that the greatest, most useful, empires were run by nomads. Nomadism was, is, a more complicated lifeway than farming. The Sumerians were either horse nomads or sea nomads. The Greeks, the Dorians, were Central Asian tribes living on the northwest edge of the Caspian Sea. Persians, Seljuk, Osmanli are good examples, while the Mongols is probably the best example.
The nomads bring much, but nomads do require some contact with settled folk. There are examples of the lifeways co-operating, not just for security and trade but to improve infrastructure, collect seeds, breed and introduce new kinds of sheep, goats, camels and horses; to build bridges and roads, hospitals and hospices. Back in the days of Muhammad, many Arab bedouin and other nomads, started settling down. But it also happened in reverse: settled people reverted back to stock-raising, to semi- or full pastoralism.
Muslim law guarantees rights to non-Muslims. Their land was no confiscated, their young men not conscripted. In return, non-Muslims (dhimmies) paid a tax of 6% of income and/or assets. Were the first four caliphs following Muhammad's instructions, that these foreign societies not be molested? Probably not. Muhammad had no dreams or plans of conquest, and died before Muslim armies left Arabia. The Muslims understood that, economically, it would be best not to molest settled communities, rightly seeing that such interference would freeze commerce, violate laws and prevent joint ventures - trade. Also, Muhammad's law of land revivification made economic development possible. When Muhammad died in 632 AD, Arab armies prepared for liberating Arabs in Byzantine Damascus and Palestine. Once these settled people knew that the Muslims armies were not going to change anything, except imperial oppression, Islam spread like wildfire.
6. Why does the system prove resilient?
The emir and later the state may annex the land and usurp authority, tax and conscript the young men, but villagers and townspeople know that these dynastic emperors and emirs, always die. In Arabic the word for government is daulat, which means 'turning,' or 'revolving' implying a a rise and a fall. So even today old Islamic ways of using, sharing and owning the land re-emerge from the failure of the state to offer services: an impartial legal system, security, resources, re-occupying empty estates, squatting, constructing new neighborhoods overnight. Some aspects of the Islamic land-ownership spectrum, have particular relevance to today. Land should be offered to those who improve it. There must exist incentives for those marginalized to work themselves back into the economy. Joint ventures, the pooling of talent and capital led Islamic communities to evolve their own forms of capitalism. Making money off money just will not do. Monopolies, the fixing of prices, the re-selling of mortgages, speculation – these have no place in the Islamic system, though they can be found today in the wealthy, westernized stratum of each modern Muslim nation.
7. Can these laws be of use in the modern age?
All through history we see a desperate attempt by elites to centralize their power. Such schemes, backed by taxation and conscription, plus an army and a bureaucracy, appear to gather together capital, focus it, then invest in projects. But this does not happen always or even often. Most resources go to the army, then to reward cronies and family, then on new estates, palaces, mosques and churches. Artisans providing luxury goods may prosper, but clearly, the money is not being used in a socially integrative way, that is, it's not making its way all through the people. Quite the contrary.
Decentralization of power leads to democracy. Decentralization of capital, is all but synonymous with prosperity. Communities know better than anyone how surplus funds might be invested. Earlier, this surplus was not invested directly, but distributed as gifts. In those countries, people have grown to expect these hand-outs. The enterprising spirit fades, as poverty sets in. So where are they distributing salaries?
As for why these laws are largely unknown to scholars, one has to consider the modern state. It expropriated, replaced these old Islamic laws, without study or comment. We are all children of that modern state, so cannot conceive of another way. Muslim scholars also overlooked these very earthy customary practices, preferring symbolic appeal to actual social improvement. It is as if their feet no longer touched the ground. -JPM
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