summing up the ottoman period

8/3/2019 Summing Up the Ottoman Period

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Summing up the Ottoman Period

Land categories: Mulk, Miri, Waqf, Matruka, andMewat.

Important Articles: 6 and 103, 59, 68, and 78.

Impact of the OLC. Impact of the Ottoman prohibitions.

Nascent conflict between peasant tenants and

an expanding Jewish-Zionist land purchasingapparatus and, subsequently, a World ZionistOrganization (Epstein?).


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The Mandate Land Regime


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ega ys ems an

Land Regimes in the Context of

Governing Regime Change(1918, 1948, 1967)

* Continuity and change.

* Regime interests, governing framework,

and limiting factors.

* Governing framework and limiting factors

in the service of regime interests.


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Periodizing the Mandate Land Regime

1918-1939 Colonial land reform policy.

1918-1919

1920-1929

1929-19361936-1939

1940-1948 The White Paper policy.

Problems with historical scholarship on the Mandate land regime


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196719481917Late OttomanEmpire

BritishMandate

State of Israel(1948-67)

State of Israel(1967-2008)

State Land Law

The Jewish-Arab Conflict over Eretz Israel / Palestine

1. Legal geopolitical work by the two national movements.

2. Relationship between government and the national

groups.3. Prevalent conceptions of property rights.

4. Imperial/Colonial Rule vs. Local Administration.

5. Key role of violence.

6. Key role of regime changes.


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The Dual Obligation


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Art. 6 of the Mandate Charter (July 1922)

The Administration of Palestine, whileensuring that the rights and position ofother sections of the population are not

prejudiced, shall facilitate Jewishimmigration under suitable conditions andshall encourage, in cooperation with the

Jewish agency referred to in Article 4,close settlement by Jews on the land,including State lands and waste lands not

required for public purposes.


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Ottoman Law in Forceon 1 November 1914The principle of status quo ante

bellum.

Convenience.

Political considerations. International Law.


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Art. 43 of the Hague Regulations (1907)

The authority of the legitimate power

having in fact passed into the hands of

the occupant, the latter shall take allthe measures in his power to restoreand ensure, as far as possible, public

order and [civil life], while respecting,unless absolutely prevented, the lawsin force in the country.


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Art. 46 of the Palestine Order in Council(1922)

The jurisdiction of the Civil Courts shall

be exercised in conformity with the

Ottoman Law in force in Palestine onNovember 1st, 1914, and

Subsequent enactments.

Common law and doctrines of equityin force in England .


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Land and GovernmentIn the Early Days of the Mandate

The colonial legacy of the British Mandategovernment.

What guided British land policy during the firstyears of the Mandate?

Institution of proper and efficient governance. Creation of a free market in land. Efficient taxation. Identifying and securing state land. Zionist pressure to undertake a land survey to

identify state lands and waste lands for the Jewishnational home (although this pressures impact on

the British is in doubt).


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The Main Thrust of Mandate Land Policy

Establishment of proper and effective

governance and improvement of theeconomy of Palestine by means of aprogram of reform aimed at clarifying,strengthening, and registering all landrights in the country.


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Transformation of Palestines

Land Regime during the Mandate

The British maintained the laws in force but

nonetheless made extensive changes

Stemming from translation. Stemming from ideology, worldview, and basic

conceptions.

Through legislation.

Through administrative changes.

Through case law (judicial doctrine evolution).

Through overall reform of the land regime.


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Art. 2 of the Palestine Order in Council(1922)

"Public Lands" means all lands inPalestine which are subject to the

control of the Government ofPalestine by virtue of Treaty,convention, agreement or succession,

and all lands which are or shall beacquired for the public service orotherwise.


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The Mahlul Land Ordinance, 1920

All those holding land which had becomemahluldue to lack of cultivation mustinform the authorities within three months.

The government will take no action againstthose who comply with the ordinance andwill lease them the land.

Individuals and mukhatirwho do notinform the authorities of their possessionof mahlulwill be punished in accordancewith the law (fine or imprisonment).


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The Mewat Land Ordinance, 1921

Struck the last section of Art. 103 of theO.L.C., which read:

Anyone who is in need of such land can withthe leave of the Official plough it up

gratuitously and cultivate it on condition thatthe legal ownership (raqaba) shall belong tothe TreasuryBut if anyone has broken up

and cultivated land of this kind without leave,there shall be exacted from him payment ofthe tapou value of the piece of land which hehas cultivated and it shall be granted to him by

the issue of a title deed.


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And replaced it with:

Any person who without obtaining the

consent of the Administration breaks up or

cultivates any waste land shall obtain no rightto a title deed for such land and further, will beliable to be prosecuted for trespass.

Any person who has already cultivated suchwaste land without obtaining authorizationshall notify the Registrar of the Land Registrywithin two months of the publication of this

Ordinance and apply for a title deed.


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Sir Ernest MacLeod Dowson

1900-1923 Held key positions in the Britishcolonial administration in Egypt in survey,economic, and land reform.

1923 and onward Served as the chief landreform advisor in a plethora of territoriesthroughout the British empire.

1923 Acceded to High CommissionerHerbert Samuels request to advise theGovernment of Palestine on land regimeissues.


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Land Laws During the Mandate

The Political Framework: The Dual ObligationThe Legal Framework: Laws in Force + changes

Changes stemming from translation, ideology, andbasic conceptions.

Changes through legislation.

Changes through reform of the Land regime. Changes through case law.

Free Market and State Land


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Dowsons Land Reform

Main underlying goal: Establishment of

proper and effective governance andimprovement of the economy of Palestineby means of a program of reform aimed at

clarifying, strengthening, and registering allland rights in the country.

Guiding Principles:

a) Western perspective.b) Securing state land.

c) Centrality of the felahin.

d) Revolution via evolution.

M d L d S l 1928 1948


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Mandate Land Settlement, 1928-1948 Land (Settlement of Title) Ordinance, 1928 Settlement Officer with broad administrative and

judicial powers. Declaration of settlement areas which are

surveyed and divided into blocs. Submission of private and state claims (Schedule

of Claims). Under Sec. 29: all land to which no private rights

established registered in the name of the state. Legal investigation of claims within each bloc,

with claims providing basis for demarcation ofparcels (Schedule of Rights).

Clearly established unassailable rights ofownership for each parcel registered in a moderneasy-to-navigate land registry.


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The Administrative Structure ofBritish Land Settlement

Dept. of Surveys Lands Dept.

Dept. of Land Regist. Land Settlement Dept.

Settlement Officer

Until 1939

Until 1939 Land Courts

Supreme Court After 1939Appeals


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Doing Away with Split Ownership Settlement of Title was used to do away with the

Ottoman system of split ownership, or the practicaldistinction between mulkand miri.

After settlement, settled miriand mewatwere held infull ownership, with no cultivation requirements. In

this way, by undertaking settlement in accordancewith the O.L.C. (Art. 78 and Art. 103) the Britishemptied it of its content.

Division of land between private holders (cultivated)

and the state (uncultivated). Evolution of a new form of state land fromtheoretical title to full rights of ownership and usfruct(although theoretically, the distinction between

raqabaand tasarrufremained).


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The Role of Judicial Doctrine

Examples:

What constitutes revival for the purposes

of Art. 103 of the O.L.C. (mewat)?What constitutes cultivation for the

purposes of Art. 78 (miri)?

How to apply the registration clause of theMewat Land Ordinance, 1921?


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Reading for Sunday

Forman and Kedar

Colonialism, Colonization and Land Law.

Recommended:

AdlerThe Tenants of Wadi Hawarith.

summing up the ottoman period

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