Ottoman Land Registration Law as a Contributing Factor in the Israeli-Arab Conflict
The Ottoman Land Code and Registration Laws of 1858 and 1859 contributed to the conflict between Jews and Arabs in Palestine and Israel. (See map below.) This essay will outline the intent and provisions of the laws; then, will describe some effects of the laws; and finally, will discuss the implications for Jewish-Arab relations.
The Ottoman Land Code of 21 April 1858 defined five classes of land ownership: ملك milk, وقف waqf, ميري mīrī, متروك matrūk 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 ofmaḥlūl, 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
The provisions requiring registration, however, were "extensively ignored."16 The peasants were semi-literate and accustomed to a traditional society in which custom and oral evidence were sufficient to support an individual's claim to property.17 Landholders saw no great need to register their claim and often did so only when they wanted to sell it to another party.18
Indeed, the peasants had strong incentives to not register or to under-register their land. One incentive was the tradition of mistrust of or opposition to government — what Granott calls the "indolence which characterizes the peasants' attitude towards official regulations" — and the desire to avoid granting unnecessary legitimization to the government.19 A second incentive was evasion of current and potential taxes on registered property.20 A third incentive to avoid registration was evasion of registration fees21 or penalties and fines for late registration.22 A fourth incentive was evasion of military conscription based on or traced through land holdings.23
Making matters worse, the land was registered piecemeal — that is, the status of a tract of land was recorded only when the owner had it registered. There was no cadastral survey,24 and "in most cases there were no measurements or maps and it was impossible to determine the boundaries of the properties."25 Claims to disputed lands brought later were therefore all the more difficult to prove.
Hence land was often not registered in the name of its "rightful owner." As long as the peasants were able to continue working their land, the registration did not concern them. But the problems arose not just because the land was not registered; they arose also because the land was often registered in the name of someone other than the rightful owner. This occurred several ways.
The widespread practice of mushā` (collective land tenure) led to misregistration. Often a community's lands were registered in the names of a few individuals or even in the name of just one individual.26 Later, under the British Mandate, matrūk was often registered in the name of the High Commissioner.27
The effect of these registration laws have been described as "catastrophic."28 The practice of registering land in the name of a fictitious or dead individual, and the inexact and incomplete nature of the records made the peasant's claim to tenure insecure. Worst of all perhaps was the fact that local town merchants or city magnates often filed whole villages or series of villages in their own names. "The entrusting of the implementation of the [Ottoman Land] law [of 1858] to the local administration ... made a mockery of the intentions of the legislator. Instead of strengthening the state's rights over the mīrī land and the rights of the cultivators, the a`yān [notables] succeeded in registering large stretches of land in their own names."29 All together, the laws contributed significantly to the concentration of property titles into the hands of a few individuals and the state.30 One writer observes concerning the code that "long before the Balfour Declaration, which is often seen as the fount of all contention over Palestine, the inarticulate but ancient peasantry had slipped a rung on the ladder which was to lead them down into the refugee camps in 1948."31
The registration laws and the corollary concentration of land-title holdings contributed to the conflict between Jews and Arabs in several ways. Eisenman notes that the frequent failure of individuals to gain recognition of their land rights (when eventually they discovered they needed such recognition) was an important root of "hostile sentiments and antagonisms that were later to erupt between Arabs and Jews during the Mandate."32
These "hostile sentiments and antagonisms" developed not merely as a result of the "numerous and prolonged lawsuits" fought over land ownership33 but even more directly as a result of the eviction of hundreds of tenant families from lands they considered their own when large landholders sold their holdings to Jews. Most of the two million dunams (200,000 hectares) of land owned by Jews at the end of the Mandate were acquired through purchases from large landowners. As John Ruedy notes, "The land expert representing the Jewish Agency before the Shaw Commission of 1929 claimed that 90% of lands bought up to that time came from absentee landlords. During the 1930s the proportion fell to 80%. In the last decade of the mandate they were about 73%."34 Further, the British prohibition on land ownership by Jews in Palestine east of the Jordan River served to concentrate and thereby intensify the effect of land purchases by Jews in Palestine west of the Jordan River.35
The "hostile sentiments and antagonisms" developed moreover from a general and growing awareness among Palestinian Arabs of the alienation of their homeland. While many forces contributed to the growth of national consciousness and nationalism among Palestinian Arabs, it is sufficient to note here that the alienation of land in the scope and manner of its occurrence was one significant factor. "Prohibition of the transfer of Arab lands to Jews" was one of the three main "November Demands" put forward by the Palestinian Arabs' "United Front" before the revolt of 1936.36
In 1948 the Israeli Government took over all British Government Lands in the area of Palestine which it controlled.37 These State Lands included mawāt, matrūk maḥmiyya, and abandoned mīrī, and represented about 70% of all Israeli-controlled Palestine.38 The mawāt lands, which accounted for over half of the State lands, had been (as of 1931) supporting 7,869 landowners and 2,508 tenants.39 Although previously reckoned as owners of the land "by the act of possession"40 these farmers had no title-deeds and therefore had little legal claim to the land. As noted above, matrūk lands were sometimes registered in the name of Mandate officials; these now become State Lands as well. Finally, "security" orders were used to "temporarily" clear certain lands of inhabitants; and after a specified time such lands were then declared uncultivated (maḥlūl), thereby transferring full legal title to the State.41 In these ways antagonisms between Jews and Arabs — which continue to a great degree to center on the issue of land — were exacerbated.
The Ottoman Land Codes and Laws of 1858 and 1859, then, were issued in order to assure state control over the lands of Palestine and to increase state revenues from those lands. For a variety of reasons much of the cultivated or occupied land was never registered or was registered in the name of someone other than the individual or collective that actually worked it. The resulting concentration of land ownership and the confusion as to legitimate title contributed significantly to the development of antagonism and ill-will between Jews and Arabs in Palestine and Israel.
Thumbnail of Map the British Mandate of Palestine as depicted by the Palestinian Academic Society for the Study of International Affairs. For large map see "http://www.passia.org/palestine_facts/MAPS/
1923-1948-british-mandate.html".
Notes
1 Abraham Granott, The Land System in Palestine — History and Structure, translated by M. Simon, (London) 1952, p. 87.
6 Robert H. Eisenman, Islamic Law in Palestine and Israel: A History of the Survival of Tanzimat and Sharī`a in the British Mandate and the Jewish State, (Leiden: E.J. Brill) 1978, pp. 56-57.
8 Granott, 1952, p. 93. On the various provisions for mawāt in the main Sunni schools, cf. Ali Abd Al-Kader, "Land Property and Land Tenure in Islam," Islamic Quarterly, 5 (1959) pp. 6-7.
12 Hon. Mr Justice Tute, "The Law of State Lands in Palestine," Journal of Comparative Legislation and International Law, 3rd series, 9 (1927) pp. 165-166.
13 Hon. Mr Justice Tute, "The Registration of Land in Palestine," Journal of Comparative Legislation and International Law, II (1929) p. 43.
17 Cf. Joseph Schacht, An Introduction to Islamic Law (London: Oxford University Press) 1964, p. 82, and cf. Eisenman, pp. 137-138.
24 The survey taken during the British Mandate managed to cover only about one-fourth of Israel's land area before the Mandate's end. (Sabri Jiryis, "The Land Question in Israel," Middle East Research and Information Project Reports, 47, 1976, p. 14.)
29 Yehoshua Porath, "The Political Awakening of the Palestinian Arabs and their Leadership Towards the End of the Ottoman Period," in Moshe Ma`oz, ed., Studies on Palestine During the Ottoman Period, (Jerusalem: Magnes Press) 1975, p. 365. Also cf. John Ruedy, "Dynamics of Land Alienation," in Ibrahim Abu-Lughod, ed., The Transformation of Palestine, (Evanston: Northwestern University Press) 1971, p. 124.
31 William R. Polk, David H. Stamler, and Edmund Asfour, Backdrop to Tragedy: The Struggle for Palestine, (Boston: Beacon Press) 1957, p. 236, cited in Ruedy, p. 124.
35 Abraham Granovsky, Land Policy in Palestine, (New York: Bloch Publishing Company) 1940, pp. 3, 17ff.
38 Moshe Auman, Land Ownership in Palestine 1880-1948, Third Revised Edition, (Jerusalem: Israel Academic Committee on the Middle East) 1976, p. 22.
41 Jiryis, 1976, p. 10. Also cf. J. L. Ryan, "Refugees within Israel: The Case of the Villagers of Kafr Bir`im and Iqrit," Journal of Palestine Studies, 2iv (1973), pp. 55-81. Other provisions of Ottoman and Mandate law, as well as other devices, were used to disposses Arab inhabitants of Palestine before and since 1948.
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