Intent and Provisions of the Ottoman Land Laws in Palestine 1858 - Milk Waqf, Miri, Matruk, Mawat - YJ Draiman

Intent and Provisions of the Land Laws in Palestine 1858

The Ottoman Land Code of 21 April 1858 defined five classes of land ownership: ملك milk, وقف waqf, ميري mīrī, متروكmatrūk and موات mawāt. Milk is "land in unrestricted private ownership," land for which the raqaba (paramount ownership) is vested in the individual.¹ What little  milk there was in Palestine was mostly "plots of land which had at the time of distribution [by Muslim conquerors] been assigned to unbelievers…."²  Waqf includes land "dedicated to a religious purpose" — theoretically owned by God — and administered or held in trust by a stipulated party such as a religious council.³

For mīrī, matrūk and mawāt, the raqaba is vested in the hands of the state. Mīrī is cultivated or cultivatable land acquired for the state through conquest or through forfeiture of milk due to a failure of heirs. An individual could gain rights over mīrī land by cultivating it and paying taxes; but the state continued to regulate its transfer and improvement. The tenant’s rights to mīrī were forfeited by failure to cultivate the land; such forfeited land is termed maḥlūl. In practice, neither the Ottomans nor the British ever repossessed maḥlūl.⁴  Mīrī included "by far the largest portion of the landed property in Palestine."⁵ (It should be noted that subsequent laws gradually extended the rights of  mīrī tenure to approach those of milk.)⁶  Mīrī land could be converted by order of the sultan into matrūk maḥmiyya (property for general public use such as lakes or roads) or into matrūk murfaqa (property for use by a particular community such as market places and cemeteries).⁷

Mawāt is wasteland which an individual could (until 1858) turn into milk with the permission of the sultan and (until 1921) turn into mīrī by cultivating it for a given period of time and paying for it.⁸

According to Abraham Granott, "The object of the law of 1858, which dealt primarily with these three classes of property [viz., mīrī, matrūk and mawāt], was to maintain the rights of the State over them."⁹ Similarly, Robert H. Eisenman asserts that the "principle aim" of the Land Code of 1858 "was the reassertion of Government control over State Domain…." ¹⁰ The concept of state ownership of land was in fact an idea in Islamic law which however central was nonetheless often "ambiguous and unclear." ¹¹

In contrast, Justice Tute contends that after the abolition of the "feudal conditions" in the Ottoman land revenue system after 1839, a confiscatory and corrupt system of tax-farming emerged which harmed the tenants and reduced state revenues.¹² "It was…to restore the prosperity of the agriculturalists," writes Tute, "that the Land Code of 1858 was framed. …It is clear that this legislation could only be given effect to by setting up a system of land registration." ¹³

The Land Code of 1858 was thus soon followed by the Tapu Law of 14 December 1858 which provided for the issuance of title-deeds. "Procedures for registration, not only of old title, but also of transfers, inheritance, vivification of mewat, the auction of maḥlūl, and prior purchase…were dealt with in the Tapu Law."¹⁴ The Tapu Seneds Law, issued in 1859, provided that "No one in the future for any reason whatsoever will be able to possess mīrī without a title-deed."¹⁵