Ottoman Land Code of 1858

History

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.

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. 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.

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".

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:

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.

The Ottoman Land Code (as applied in the Palestine Mandate)

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 Moslem religious courts, orders of administrative authorities and deeds of sale executed before the Moslem 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). 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:

1. Mulk = private or allodial land (held in absolute ownership).
2. Miri = 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. Most Ottoman registrations of miri (usufruct) titles existing in Palestine are based on a presumed or lost grant.
3. Waqf = 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.
4. Matruka = communal profits-à-prendre land, being land subject to public easements in common, or servitude State land.
5. Mewat = dead and undeveloped land.

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. 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.

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. 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. 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.