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“When He Is Grown…” The Rights of Orphans and the Legal Character of Miri Land in the Later Ottoman Centuries
In recent years, historians of the Ottoman Empire have asserted that by the late seventeenth and eighteenth centuries, Ottoman law treated miri (treasury-owned) land as something increasingly similar to mülk (freehold) property. Such a transition suggests that Ottoman land law was evolving organically and without Western influence toward recognizing property rights on land that were very close to private property. The appeal of this narrative has been very strong for Ottomanists who wish to combat the notion of a hidebound and stagnant empire and to highlight the transformation of Ottoman political economy in the eighteenth century. In this paper, I question the narrative of miri land transitioning toward private property in the later Ottoman centuries. I contend that the more prevalent trend in evolution of land law in this period was a deeper institutionalization of a conception that had been dominant since the sixteenth century: namely, treating land as an exceptional legal entity that was primarily a means of livelihood for cultivators. To illustrate this trend, I will examine how orphans could assert a right to a parent’s miri land and the powers of the orphan’s guardian to transact this land. Consulting kanunnames, fetvas, and fiqh manuals produced in the seventeenth, eighteenth and nineteenth centuries, I will demonstrate that the rights of orphans to claim miri land remained quite different from their rights over their mülk inheritance, allowing them to “undo” decisions of their guardians and reclaim land that would be their means of subsistence in adulthood. Moreover, the eighteenth-century muftis extended these rights to non-orphan minors, going further than the kanuns in establishing rights to reclaim miri land that did not exist for mülk inheritance. My conclusion is that the exceptional status of miri land did not disappear in the eighteenth century but was in fact more extensively elaborated and more ubiquitously incorporated into both fetvas and the academic texts of fiqh. Stubbornly persistent, this exceptionalism continued to surface in the provisions regarding minors and orphans in the 1858 Land Code and even the liberalizing amendments to the Code adopted in 1878. Ultimately, my point is to call into question how well the narrative of “the rise of private property” captures the realities of Ottoman evolution in the eighteenth and nineteenth centuries. Ottoman dynamism, I maintain, is often found in adaptations that defy conventional narratives of modernization and which have the potential to reshape these conventional narratives.
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Ottoman Empire
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