Journal of the Economic and

Social History of the Orient 61 (2018) 920-975

brill.com/jesh

Property and Its Rule (in Late Indo-Islamicate and

Early Colonial) South Asia: What’s in a Name?

Faisal Chaudhry
University of Dayton
[email protected]

Abstract

This article sets out a framework for understanding two key issues in the history of early
modern and modern South Asia. First, it addresses the vexed question of the generaliz-
ability of the “Western” concept of property to Indo-Islamicate land systems. Rather
than beginning from the idea of ‘Islamic property law/relations’ it proposes that we
reconstruct concepts relating to the control of the earth’s material substrate in terms
of four modes of idiomizing land in the Islamicate tradition. In light of how the latter
reconstruction suggests that (Indo-)Islamicate modes of idiomization focused on the
produce of land more than land itself, the article then turns to a second issue. This
concerns the similarities and differences between the deontic cultures of rights and
responsibilities that characterized early modern polities (both in Mughal India and
England) and nineteenth-century ones (like metropolitan Britain’s and that emerging
from the East India Company’s so-called rule of property in the subcontinent).

Keywords

Islamic law and legal history – property, land control, and Indo-Islamic rule – early
modern empires – colonialism and modern South Asia – political economic concepts
and the history of economic ideas

Introduction

Reflecting on the nature of the Indo-Persian lexicon, in 1929 the British civil
servant W.H. Moreland found himself commenting on the penchant for au-
thorities in “Moslem India” to “do almost anything to avoid verbal repetition.”

© koninklijke brill nv, leiden, 2018 | doi:10.1163/15685209-12341469

Property and Its Rule 921

As he noted, this made it natural for “a particular thing” to sometimes “appear

under various names” and, at other times, for those names to be used more
“precise[ly]” as “terms of art.” Accordingly, he continued, “[j]ust as happens
at the present day” it was possible for both “general and technical senses [to]
co-exist.” Of particular concern was the term māl. This, as Moreland explained,
was because to the ordinary writer the term could mean either “property” or
“possessions.” However, to those in “in the military department” it was just as
likely to “denote[] “booty taken in war.”” Meanwhile, for still others, like those
speaking “the jargon of the financial offices,” it was yet another use of the
term—to refer to the ““land-revenue””—that was predominant.1
As noteworthy as this discussion of māl’s ambiguity was, it was even more
ironic. After all, each of the English-language equivalents Moreland invoked to
translate the term had proved thoroughly confounding to British officialdom
during the colonial period in the subcontinent’s history. Indeed, this was the
case for none more so than “property,” a term the extension of which in Indian
society was made into a veritable proxy for evaluating the trajectory of moder-
nity’s history in South Asia from the very inception of British supremacy.
Even today the ideal of a rule of property that the East India Company is said
to have made official policy in the 1790s—some thirty years after it began tran-
sitioning from trader to sovereign—continues to be seen as a turning point;
and as a turning point its more precise nature has been intensely debated. At
the same time, sustained attention has also resulted in rough consensus on
certain points, as with the commonplace emphasis on the many ways that the
practice of property’s rule under the Company was forced to diverge from its
would be theoretical ideal in the face of conditions on the ground. (Elsewhere
in this special issue, Upal Chakrabarti calls this the “misrecognition thesis”
upon which contemporary scholarship has tended to converge.2)
Under the East India Company’s raj, therefore, it is notable that so little at-
tention has been paid to the theorization of property on its own terms. Perhaps
the most basic question that remains unanswered is whether freeing land into
the market along capitalist lines even was the true ideal to which that theo-
ry aspired. The primary aim of this article is thus to help fill this gap in our
understanding. However, the article is not simply about the period of (early)
British rule. Instead, it brings together three topics that have usually been kept
separate and broached by scholars in different fields. Therefore, the article’s

1 W.H. Moreland, The Agrarian System of Moslem India: A Historical Essay with Appendices
(Delhi: Oriental Book Reprint, 1968 [1929]): xiv.
2 U. Chakrabarti, “The Problem of Property: Local histories and political-economic categories
in British India.”

jesho 61 (2018) 920-975

922 Chaudhry

starting point is that making sense of the connection between property and
a “modern” form of polity, society, and economy of the kind that early colo-
nial rule claimed to be seeking to bring into being cannot be done in isolation.
Rather, exploring this connection necessitates comparative engagement with
both (Indo-)Islamicate discourses of land control as well as those that were
formative to the West’s own passage from early modern to modern times.
Accordingly, the article is organized into three roughly equal main sections.
Section one begins by looking at how landed territory was reckoned with in
learned Islamicate discourses during the formative period of their emergence
between the seventh and twelfth centuries of the common era. Taking a tele-
scopic view, I argue that four key modes of “idiomizing” land are discernible
within these discourses. While these modes were distinct and in various ways
independent from one another, they also shared a focus on providing for the
capacity to assert claims over land’s produce more than land itself (a conten-
tion that may be likely to sound more familiar to students of South Asia than
will be warranted by the ongoing path the argument takes). In turn, these
modes of what I call idiomization proved foundational to the new forms of
polity and economy that developed in the subcontinent amidst the rise of
Islamicate power after the year 1000 ad; and they persisted in this role well
into the eighteenth century, as the Mughal Empire decentralized into various
successor states that maintained its deontic culture of rights and responsibili-
ties even as they usurped its power.
In section two, I then extend the scope of the article’s comparative reach
to one of the centers of the early modern West. Specifically, I consider the dis-
tinct ways in which land increasingly came to be idiomized in Britain in the
express name of property starting in the seventeenth century and continu-
ing during the period between the eighteenth and nineteenth centuries that
paralleled the subsidence of Mughal sovereignty in the South Asian subconti-
nent. One explicit question this section of the article addresses has to do with
why it is misleading—not to mention more than simply terminological—to
envision the Islamicate legacy of idiomization in the subcontinent in terms
of ‘property.’ Therefore, whether the legacy of Islamicate idiomization is un-
derstood in terms of a ‘law of property’ or an analytical perspective from the
notion of ‘property relations,’ something more than just semantics is at stake.
Section two also takes up a related question having to do with property’s ideo-
logical and technical valences as a concept in the early modern West—pro-
viding a genealogical account of its relationship to the concept of rent. As I
argue, rent became a key means of idiomizing land in terms of property in the
incipient field of classical political economy. It did so, however, independent
from the way the nominally same process—of idiomizing land in the name of
property—was elicited within the discourse of the rule of law. As a result, rent

jesho 61 (2018) 920-975

Property and Its Rule 923

became the underpinning for an alternative concept of property emanating

from economic discourse starting in the early 1600s. If scholars have too long
failed to appreciate as much, it is because the identity between property and
rent was generally kept at arm’s length, likely due to the troubling normative
implications of the notion of landed right as a form of authoritatively sanc-
tioned monopoly over undue returns. In contrast, in its primary incarnation
within juridical discourse property could be relentlessly celebrated as part of
the progress narrative of Western exceptionalism, being portrayed as the basis
of both liberal freedom and material expansion.
Against the backdrop of the first two sections of the article, in the last I
return to the question of what made the early colonial state’s property regime
in the subcontinent unique. In section three, then, I extend the earlier discus-
sion by arguing that it was the alternative version of the concept of property
in the West, as an entitlement to rent, that operated as the Company’s true
ideal during the formative period of its rule. In this respect, the wholesale ad-
vent of capitalist land relations in the Indian countryside was limited less by
any contradiction between theory and reality than it was by the very design of
the relevant theory itself. The Company’s founding rule of property thus may
well have created a “more efficient, brutalized” version of the Mughal Empire’s
ancien régime of surplus appropriation;3 if so, however, it did so only on the
basis of idiomizing land in the name of property in a way that maximized the
conflation of its core right (here, to rent) with the duty of taxation. In so doing,
the Company’s property regime could not but make a notable departure from
the deontic culture that Indo-Islamic modes of idiomization had undergirded,
even notwithstanding their own focus on land’s produce more than land itself.
At the same time, the Company’s conflation of land’s rights (to property) with
its associated duties (through taxation) was out of keeping with the ideal ac-
cording to which the relationship between them was generally construed back
home in Britain. As I explain, this was the case not only as compared to the
predominant way that relationship was idealized during Britain’s passage to
nineteenth-century modernity, but also as compared to the way it was imag-
ined in early modern times.

…
Given the three specialized areas of scholarship the article puts into conversa-
tion, its overall aim is synthetic, and its focus is on the examination of con-
cepts, both historical and historiographical. Such a method, of course, imposes

3 D. Washbrook, “Law, State and Agrarian Society in Colonial India.” Modern Asian Studies 15/3
(1981): 661.

jesho 61 (2018) 920-975

924 Chaudhry

certain limitations—as in having to abstract away from specificities of region

while discussing the different modes of idiomization that developed during
the formative period of Islamicate expansion in section one. On balance, how-
ever, the advantages of this method should outweigh its costs, given the way
it allows for an integrated perspective on the otherwise usually isolated topics
the article treats.
Moreover, the larger concern with the context specificity of land’s idiomiza-
tion in different historical situations is hardly just conceptual or historio-
graphical in import. After all, as Moreland would concede, “property”—to
say nothing of ‘property law’ or ‘property relations’—did not simply desig-
nate some unitary “thing” that happened to appear under a multiplicity of
“names”—whether in English, the other cognate language traditions of the
West, or their various non-Western counterparts.4 Even when it did appear
under a singular “name”—as in those language traditions in the West to which
it was indigenous—“property” was a concept that still varied relative to the
more precise discursive register in which it appeared. As a result, its concep-
tualization changed according to ordinary versus technical usages as well as
based on the fact that technical usages, themselves, varied across different do-
mains of specialist discourse.
Looked at in this way, property in history must be seen as a linguistic, rhe-
torical, and discursive reality as much as a material one. However, this linguis-
tic/rhetorical/discursive aspect cannot simply be understood on the model of
what legal scholar Carol Rose means when incisively calling attention to prop-
erty’s “persuasion;” that is, to the necessary way that property has served as a
source of communicative signaling between the individual who is its ostensi-
bly absolute holder and those other social actors inhabiting the same politi-
cal community.5 Nor, on the other hand, can property’s linguistic/rhetorical/
discursive character simply be reduced to what the philosopher John Searle
calls its stature as an “institutional fact;” that is, a fact the existence of which

4 Moreland’s comments echo a more sophisticated warning against seeing property simply
as a thing (rather than a series of “jural relations”) that was making its influence felt
in Anglophone legal thought at the time, see W.N. Hohfeld, “Some Fundamental Legal
Conceptions as Applied in Judicial Reasoning.” Yale Law Journal 23/1 (1913): 16-59.
5 C. Rose, Property and Persuasion: Essays on the History, Theory, and Rhetoric of Ownership
(Boulder, CO: Westview Press, 1994): 4-7.

jesho 61 (2018) 920-975

Property and Its Rule 925

depends on what Searle calls “collective intentionality”6 having to be made

manifest through some kind of system of socially shared linguistic convention.7
Rather, property’s non-material aspect derives first and foremost from
the way it has served (and serves) as an idiom for talking about the world,8
which has long made it more than just a straightforward means of indexically
naming (parts of) the world’s material substrate.9 Viewed in this way, property

6 As used in contemporary Anglo-American/analytical philosophy, intentionality points to the

quality of aboutness (or directedness) that minds (or mental states) are capable of having.
Defying the continental versus analytical divide in philosophy, the origins of the concept
go back to Franz Brentano’s Psychologie vom empirischen Standpunkte [Psychology from an
Empirical Standpoint] (1874). It was then further taken up by figures like Edmund Husserl
and Martin Heidegger. On the more specific way it was absorbed in the analytical tradition,
see e.g. G.E.M. Anscombe, Intention (Oxford: Blackwell, 1957) and J. Searle, Intentionality: An
Essay in the Philosophy of Mind (New York: Cambridge University Press, 1983).
7 In recent years Searle has moved—with growing portentousness—from describing his en-
terprise as an (anti-post-modernist) attempt at addressing “the construction of social reality”
(as opposed to “social construction”) to one of forging a “philosophy of society,” see J. Searle,
Making the Social World: The Structure of Human Civilization (New York: Oxford University
Press, 2010).
8 While neither space nor the article’s main purpose allows extended consideration, eschew-
ing the notion of the representation of/representing the world for one of the idiomization
of the/idiomizing the world is a deliberate choice. It is made in order to emphasize the ar-
ticle’s methodological agnosticism about pushing questions concerning the relationship be-
tween words and the world to their limit. That is, the article takes no position on whether
the meaning of some terms may simply derive from how they refer to the world and, thus,
directly represent its irreducibly real contents. Instead, more minimally, it only contends that
‘property’ cannot be thought of as such a term. At the same time, the notion of idiomization
also is a way of suggesting that the article’s dispute with the concept of property is more
than just terminological. This is because it implicitly replies to an easily anticipated criti-
cism based (perhaps counterintuitively) on the Wittgensteinian slogan that “meaning is use.”
On one interpretation of the slogan, it can be argued that even if we try to avoid a term like
‘property’ any substitute will converge on the same uses that are the true underpinning of its
meaning(s). Contra such a view, the notion of idiomization implies that ‘property’ was more
than just a part of context-dependent language games taking place at the level of interper-
sonal communication of the kind that many linguists and philosophers of language com-
monly focus on. Rather, in its capacity as an idiom, ‘property’ functioned at the level where
the meanings of wholesale historical traditions were made. In other words, it was part of
an historical epoch-making process of communication through which the self-fashioning of
“Western” forms of economy, polity, and society took place. At this level of context, meaning
was not simply dependent on uses that any other substitute term(s) would equally have had
to converge upon. Instead, it was contained within distinct cultural conversations based on
society-specific ideological motifs.
9 Of course, this is not to suggest that prevailing theory sees proper names as necessarily in-
dexical—or at least no more so than it sees indexicals, proper, as being necessarily captured
by descriptivist theories of the kind first developed to account for names. Consequently, the
relatively informal way I am using the term ‘indexical’ is meant to distinguish between lexical

jesho 61 (2018) 920-975

926 Chaudhry

must be thought of as a concept subject to historical variation in ways that

potentially matter(ed) across linguistico-cultural traditions. To acknowledge
as much before starting requires no reflexive assumption that terms can never
serve as conduits for picking out features or aspects of the external world that
are, in fact, irreducible. (Indeed, the term ‘land,’ itself, may be a case in point.)
It only requires that we avoid seeing ‘property’ as such a conduit, whether
due to the historically specific ideological agendas through which the term
actually became a ubiquitous part of modernity’s lexicon or due to the by now
long recognized untenability of any idea that it functions simply as a way of
denoting the earth’s material substrate.”10

1 Property and the Idiomization of Land in the Islamicate Tradition

The need to intellectually reckon with land as a feature of the external world
the control of which was vital to polity, economy, and society in the Indian
subcontinent clearly did not begin with the advent of British rule. In the half-
millennium preceding the ascendancy of the East India Company agrarian so-
ciety in large parts of South Asia had come to sit beneath forms of imperium
that were indebted to a highly developed array of Islamicate concepts devoted
to the control of landed space11—many of which emerged directly from the

items that (seem to) mean through referring to what they pick out in the world and those
for which any such account is plainly less tenable. For a basic but wide-ranging over-
view, see D. Braun, “Indexicals”, The Stanford Encyclopedia of Philosophy (Summer 2017
Edition), Edward N. Zalta (ed.), forthcoming url = <https://plato.stanford.edu/archives/
sum2017/entries/indexicals/>.
10 Consider, for example, the term’s most common technical usage as a synonym for the
idea of a ‘legal right’ and how it has been regarded since the early twentieth century.
See Hohfeld, “Some Fundamental Legal Conceptions.” It is important to note that the
assertion being made here about property being an ‘idiom’ in its own right is not just to
say that it can be “subdivided … into (unconsidered) lay notions and (scientific) Hohfeld-
like propositions about entitlements,” Rose, Property and Persuasion: 1-2 (citing Bruce
Ackerman, Private Property and the Constitution [New Haven: Yale University Press, 1977]:
10-11, 194 n.15). Alongside of the more explicit connection to post-structuralist concerns
about “social construction” (or, as Searle would have it, a proper philosophy of society’s
with the “construction of social reality”), the notion of idiomization bears a more sub-
stantial debt to the focus on the “languages” of political thought that is central to the ap-
proach of so-called Cambridge School historians of ideas like Quentin Skinner and J.G.A.
Pocock. See, e.g., The Languages of Political Theory in Early-Modern Europe, ed. A. Pagden
(New York: Cambridge University Press, 1990).
11 Following Marshall Hodgson’s convention, I will general reserve the term “Islamic” for
ideas or practices that are widely conceived as part of orthodox belief to follow from
Islam itself—in its capacity as a social and sacral system that emerged from its own

jesho 61 (2018) 920-975

Property and Its Rule 927

Islamic jurisprudential, or fiqh, tradition. These, of course, took root side by

side with an even longer standing tradition of kingship, statecraft, and com-
munitarianism with its own stock of land control concepts that had devel-
oped internal to Indic civilizations, especially over the course of the second
half of the first millennium of the common era. Consequently, the cultures
of Indo-Islamicate rule that emerged in the subcontinent after the year 1200
were tapped into a deep well of concepts for asserting human agency over the
earth’s materiality; and Islamicate modes of idiomizing land, specifically, could
not but be instrumental in shaping the larger deontic culture—that is, the
larger set of representations in society about what it meant to exercise one’s
rights and fulfill one’s responsibilities—that political community across the
subcontinent came to be built upon.
The importance of understanding Islamicate modes of idiomization thus
lies not in any mismatch between the ‘property-related’ terminology of two
diametrically opposed traditions, one Islamic and the other Western. Rather,
it is a prerequisite for comparatively assessing the deontic culture of the late
pre-colonial subcontinent, whether relative to that which characterized the
early modern or modern West or that which started to be built in property’s
own name in South Asia under early colonial rule.

1.1 Why ‘Idiomization’? Land as Material Substrate, Land as Object of

Social Convention
By stepping outside of the perspective of the Islamic jurists, or fuqahāʾ, them-
selves, we can reconstruct the key concepts of the fiqh tradition12 as a set of in-
tellectual resources for making two kinds of distinctions. According to the first,
one could distinguish the underlying substrate of the earth (e.g. arḍ, ṣawāfī,
mawāt, māl 13) from the conventionally recognized forms through which

self-described normative sciences. (Of course, the authority of those sciences was ob-
viously formulated, embraced, or rejected in different ways by different Muslim groups
throughout history so as to make it ultimately questionable whether they, themselves,
were uniformly regarded as normative in the first place). I will use “Islamicate,” in con-
trast, to describe other ideal or actual elements of human life in societies where Muslims
were either the predominant demographic group or otherwise important players in de-
termining the historical destiny of society. See Hodgson, The Venture of Islam: Conscience
and History in a World Civilization, Volume 1: The Classical Age of Islam (Chicago: University
of Chicago Press, 2009 [1958]): 59.
12 It is important to note that while the article tries to draw on fiqh concepts in a general
way, it is toward the Ḥanafī school that it gravitates where all other things are equal.
13 Where terms go untranslated when introduced, it is because I will explain/elaborate on
them later. This is consistent with the idea that they are better seen as comprising modes
of idiomizing land rather than simply ‘Islamic property law’ terms that must have obvious

jesho 61 (2018) 920-975

928 Chaudhry

control over that substrate was proclaimed (e.g. ṣawāfī [on some ways of un-
derstanding the concept], haqq, raqaba, mulk/milk, waqf 14). According to the
second, one could further distinguish such conventionalized forms from one
another by their degree of robustness. Ostensibly full control (raqaba, milk, [or,
alternatively, milk that was tāmm or complete]) could thus be differentiated
from more limited varieties of control (such as manfaʿa [or, alternatively, milk
al-manfaʿa or simply milk that was described as nāqiṣ or deficient], on the one
hand, and taṣarruf or yad [or, alternatively, milk al-yad], on the other).15
When Islamic juristic concepts relating to land are reconceived according to
these two distinctions, a tripartite schema results—of the substrate controlled
versus the verbal convention for claiming control over that substrate versus
the degree of control provided for through any given convention. Considered
in the context of the above example terms I have drawn from the lexicon of
fiqh discourse, therefore, the schema may leave the exact correlate of any given
term potentially ambiguous. For instance, insofar as it was meant to point to
the earth’s terra firma the concept of arḍ was like any other basic term of or-
dinary language purporting to stand vis-à-vis the external world in a relation
of ostensibly direct reference. The same was much less the case, however, for
a concept like mawāt in its capacity as a signifier for land that was barren or

equivalents. For those in search of a more conventional summary, see W. Hallaq, Sharīʿa:
Theory, Practice, Transformations (New York: Cambridge University Press, 2009): 296-307
or K.S. Vikør, Between God and the Sultan: A History of Islamic Law (New York: Oxford
University Press, 2005): 326-44.
14 Some of the ways of grouping these concepts may seem mistaken or unusual to the
knowledgeable reader. For example, one might object that haq was no more than a gener-
ic term for ‘right,’ with milk being the proper term for ‘property right’ in specific. Likewise,
one might object to putting the term raqaba side by side with milk, given that in its typical
rendering as ‘the essence of’/‘full’ ownership it was often used as a residual category—for
example, to distinguish that which went unassigned to those granted mere ‘usufruct’—
rather than to mean a right as such. However, such problems result only by understanding
the idea of a convention/conventionality narrowly. The point of trying to step outside of
the perspective of the Islamic juristic tradition in the way the article seeks to is to avoid
just such an excessively narrow understanding of conventionality. Otherwise, it becomes
too easy to attribute effective universality to the language of property, which was the very
outcome to be avoided in the first place. As I explain further below, to start instead from
different modes of ‘idiomizing’ land is to try to avoid just such an outcome, which is wide-
ly sensed to be problematic but rarely addressed. Compare, S. Sait and H. Lim, Land, Law
& Islam: Property & Human Rights in the Muslim World (New York: Zed Books, 2006): 8-14
and 31-34.
15 The typical way of translating manfaʿa and taṣarruf/yad is as ‘usufruct’/‘beneficial use’
and ‘possession,’ respectively.

jesho 61 (2018) 920-975

Property and Its Rule 929

uncultivated16 or, for that matter, māl,17 as a seemingly more straightforward

signifier.18 In a similar way, the schema will also leave it potentially ambigu-
ous as to whether example terms drawn from the lexicon of fiqh discourse
comprise conventions for indicating full or only partial control of a substrate;
in short, this is because it warns against simply rendering canonical fiqh divi-
sions—like between milk and manfaʿa or milk and taṣarruf/yad—synonymous
with the contrast between ‘ownership’—or, equivalently, ‘property’—and its
ostensibly lesser incidents like ‘usufruct,’ ‘possession,’ and so on.
Reconstructing fiqh categories based on a schema like the above is thus not
only a way of reckoning with the historical contingency of Islamicate idioms.

16 This is because as a notion signifying ‘dead land’ mawāt had no simple correlate outside
of the intricate forms of human intentionality through which only certain parts of the
earth were marked as ripe for agentive control. Much the same point can be made about
a concept like ṣawāfī, which I have left untranslated to this point. While its construction
in sunnī and shīʿī thought differed, in the former it is generally said to signify ‘ownerless’
land conquered by the state and laid claim to by its central treasury. It was thus closely
related to the concept of fayʿ that is discussed in the next subsection. See G. Khazna Katbi,
Islamic Land Tax—Al-Kharaj: From the Islamic Conquests to the Abbasid Period (New York:
I.B. Tauris, 2010): 229-75 and H. Modarressi Tabātabāʾi, Kharāj in Islamic Law (Tiptree,
Essex: Anchor Press, 1983): 8.
17 Often understood as denoting the underlying thing really being controlled through ver-
bal convention, māl is defined as such only with difficulty. This is because to designate
something as māl was already to conventionally mark it as belonging to a special class
of intentional objects deemed worth controlling in the first place, whether on aesthetic,
utilitarian, or whatever other grounds of socially apparent valuation. In fact, the attribu-
tion of value—whether to the objects underlying the concept of māl or that of mawāt
or ṣawāfī—rested on an even deeper set of conventions, only being realizable through
second order social institutions and markers of at least two other kinds. First, there were
conventional “legal” rules—like those through which Hanafī jurists distinguished one
subcategory of māl that was mutaqawwim or religiously licit (for the purposes of com-
mon transactions like sale) and another that was ghayr (lit. ‘without’) mutaqawwim or re-
ligiously illicit (like pork). (For more on this distinction see Hallaq, Sharīʿa: 297.) Second,
there were the conventional structures of the underlying political economy, which im-
posed their own social constraint on that which could be considered capable of generat-
ing—and thus that which could be deemed capable of having—(economic) value.
18 For his own part, Hallaq classifies māl according to his notion of “property qua property”
(by which he means appropriable things). This he distinguishes from the “legal relation-
ships” involved in “ownership” (under which, for example, he places milk). Ibid.: 299. My
own preference is to avoid Hallaq’s framework (which is also external to the Islamic ju-
rists’ own) given its peculiarly antiquated use of ‘property’ to mean the substrate con-
trolled through legal conventions. Such a use erases the socio-historical valence of the
concept that make questions about its universality—as distinct from the universality of
appropriable things—thorny. There is also the fact that Hallaq seems unable to keep the
two sides of his distinction consistent. See, e.g., his discussion of milk ikthiyārī and milk
qahrī as voluntarily versus involuntarily acquired things (or rights?). Ibid.: 300.

jesho 61 (2018) 920-975

930 Chaudhry

It is also a way of reckoning with the historical contingency of Western moder-

nity’s own language of property, into which fiqh categories are often translated
to confounding effect, as when scholars insist that “ownership” in “Islamic law”
belonged to God alone.19 To fail to take stock of property’s character as a con-
tingent idiom—rather than conceptual universal—is to willfully forget how
even within the Western tradition, by now it was already long ago that the con-
cept of ownership came to be widely seen as an empty vessel.20 (As much is
reflected, of course, in the lawyerly slogan that property is a “bundle of sticks,”21
with its underlying suggestion that ostensibly unitary rights are really amalga-
mations of political and economic choice.22)

19 Ibid.: 296; Sait and Lim, Land, Law & Islam: 10; B. Weiss, The Spirit of Islamic Law (Athens,
GA: The University of Georgia Press, 2006): 25.
20 On the more common view, property/ownership is seen as bringing together various
component or incidental ‘rights’ that in principle could be reshuffled into hands other
than a single proprietor’s own. See, e.g. A.M. Honoré, “Ownership.” In Oxford Essays in
Jurisprudence: A Collaborative Work, ed. A. Gordon Guest (Oxford: Clarendon Press, 1961),
107-47. From this standpoint, ‘ownership’ means that with respect to any particular thing
one may have any or all of some wider array of incidents such as the right of usufruct in
a thing, of possession over it, to bring a claim against another with respect to it, to garner
income from it, to treat it as capital, of alienating any or all of its other incidents during
one’s lifetime, and so on. Suffice to say, that ‘possession,’ ‘usufruct’ or whatever else could
thus be recast as a ‘property’ of its own did not solve the larger problem. Rather, it deep-
ened it given the standing possibility to iterate the original confusion one level down. In
other words, if (the right to) possession is ‘property’ one is simply left asking whether its
essence is found in (the possession of) some variety of underlying usufructuary right (and
so on, ad infinitum).
21 On the more technical understanding, property’s bundle is seen as separable into a se-
ries of ‘jural’ entitlements binding different legal actors together in correlative pairings.
For example, a proprietor’s liberty to excavate land that is his or her ‘own’ exists not in
isolation but only side by side, say, with the state’s denial to other individuals of the abil-
ity to bring suit to prevent the damage that such excavation might cause to his or her
‘own’ property. See A. DiRobilant, “Property: A Bundle of Sticks or a Tree?” Vanderbilt Law
Review 66/3 (2013): 877-89.
22 Aspects of such awareness may have been latent within fiqh discourse. However, it is un-
tenable to imagine that Islamic fuqahāʾ inhabited any general mindset in which a ste-
reotyped distinction like that between milk and manfaʿa or taṣarruf was tantamount to
envisioning the former as no more than a bundle of the latter considered as potential
sticks. (At the very least, the fuqahāʾ inhabited such a mindset no more than those in
the West who also once confidently separated property from possession/usufruct even
without going further.) Consider, for example, the concept of waqf that is often translated
to mean ‘trust property’. While clearly central to Islamic juristic thought, waqf was hardly
counterpoised against milk in the reflexive way that manfaʿa or taṣarruf happened to be
as its perceived lesser forms. Instead, entrusting an underlying asset into the impersonal
hold of a waqf was caught up in a different equivocation. On the one hand, it could be
seen as a way of extinguishing the otherwise maximally fulsome right of (s)he who was

jesho 61 (2018) 920-975

Property and Its Rule 931

Ultimately, then, it is because rather than despite the potential for ambiguity
that reconstructing fiqh concepts based on a perspective outside of the tradi-
tion’s own is illuminating. Historically speaking, it helps clarify that there were
not just different ways of idiomizing land across socio-cultural traditions but
also within any given tradition. Even scholars of the Western tradition would
consequently be wise to search elsewhere for property’s additional (or, per-
haps, its main) importance, especially when thinking about post-seventeenth
century social, political, and economic developments.
Speaking more philosophically, there is another distinct advantage to the
potential for ambiguity created by reconstructing fiqh concepts based on a per-
spective outside of the tradition’s own. This is because it demands a greater
recognition of the distance between land as the earth’s irreducible material
substrate—seemingly extant outside of human intentionality—and land as an
object of social convention—linked to varied human aims, including the insti-
tutionalization of the politically determined distribution of economic power.
Of course, baseline human purposes may yield some terms of direct linguistic
reference that do simply pick out the irreducibly material stuff of the natural
world.23 Beyond that baseline, however, to deal with land intentionalistically
necessarily requires more semantically complicated idioms for representing
the many purposes human actors bring to bear upon it.

1.2 The Four Modes of Idiomizing Land under Islamicate Imperium

While even terms of ostensibly direct linguistic reference like arḍ are social
conventions of a sort, in the present subsection I focus on those that distin-
guished more complex human aims relating to the control of the earth’s ma-
terial substrate. These I discuss under the headings of four distinct modes of
idiomizing land in the Islamicate tradition that can, for shorthand’s sake, be
labeled as follows: 1.) the idiom of sacro-political territorial domain (that was
rooted in the discourse of siyar) 2.) the idiom of intra-territorial hierarchical
assertion (that was rooted in concepts like milk); 3.) the idiom of financial ex-
action (that was rooted in “taxation” categories like kharāj) and 4.) the idiom
of bureaucratizing financial assignment (that was rooted in the institution of
the iqṭā‘).

the wāqif (trustor). On the other, it could be seen as extinguishing only the wāqif ’s imme-
diate enjoyment (or usufruct), especially if (s)he was permitted to appoint him/herself as
beneficiary—as per the Ḥanafī view—or manager-trustee (mutawallī).
23 On the various problems and possibilities of direct reference theories of natural lan-
guage terms, see N. Chomsky, New Horizons in the Study of Language and Mind (New York:
Cambridge University Press, 2000): 134-94.

jesho 61 (2018) 920-975

932 Chaudhry

The first three of these four modes of idiomization was consolidated during
the formative period of Islamic juristic development.24 Accordingly, they were
well on their way to maturity by the middle of the ninth century, evolving in
tandem with the ongoing transformation of the fiqh tradition, itself, into a dis-
tinct socially embodied intellectual discipline. The emergence of these idioms
also tracked the ascent of Islamicate imperial authority under the ʿAbbāsid ca-
liphate until its first irreparable splintering with the rise of the Buyid dynasty.
The development of the fourth mode of idiomization was slightly different.
Although eventually assimilated into the more speculative discursive tradi-
tion of the jurists,25 it was built less on a series of “legal” categories born from
the formalizing impulse of the fuqahāʾ than a series of “administrative” ones
precipitated by the practical exigencies of constructing a functioning revenue
regime. As such, the fourth mode of idiomization was predicated on categories
that rose to prominence only after the middle of the ninth century. Below I
describe each of these modes of idiomization in greater detail.
1.) The idiom of sacro-political territorial domain: Emerging most directly
out of the formative period of Islamicate expansion (although maturing only
at the start of the ninth century), the first mode of land’s idiomization com-
prised a series of juristic conventions for parsing the earth’s physical geography
into distinct territorial realms/domains. More specifically, these conventions
parsed material space based on the aim of asserting political authority over
it. By the light of these conventions, the world was schematized first into an
‘abode of Islam’ (dār al-Islām) that constituted the domain of the Muslim rul-
ing strata’s effective sovereignty. In turn, the dār al-Islām was distinguished
from a residuum comprising a so-called ‘abode of war’ (dār al-ḥarb), on the one

24 Rather than the more ambiguous periodization rooted in the idea of a classical age, I bor-
row Hallaq’s terminology of “formative”/“post-formative” (dividing roughly at 950 ad),
see W. Hallaq, An Introduction to Islamic Law (New York: Cambridge University Press,
2009): 173, 175.
25 This is not to say that any of the aforementioned fiqh concepts really emerged other than
through a complex dialectic with practical exigency. The point is only that the emergence
and/or maturation of the ‘administrative’ categories of the fourth mode of idiomiza-
tion generally took place after the first three modes had been consolidated by the mid-
ninth century of the common era and the high point of the ʿAbbāsid golden age. On the
rise of the formative period of the fiqh tradition, see M. Hashim Kamali, Principles of
Islamic Jurisprudence. (New York: Cambridge University Press, 1991); W. Hallaq, A History
of Islamic Legal Theories: An Introduction to Sunnī Uṣūl al-Fiqh (New York: Cambridge
University Press, 1999); A. Zysow, The Economy of Certainty: An Introduction to the Typology
of Islamic Legal Theory (Atlanta: Lockwood Press, 2013), and most recently A. El Shamsy,
The Canonization of Islamic Law: A Social and Intellectual History (New York: Cambridge
University Press, 2013).

jesho 61 (2018) 920-975

Property and Its Rule 933

hand, and an intermediate ‘abode of peace’ or ‘reconciliation’ (dār al-ṣulḥ), on

the other.26 Notwithstanding their extra-Qurʾānic basis,27 these conventions—
along with those relating to jihād—laid the basis for the sub-discipline of siyar,
or as it is also now rather anachronistically known, ‘Islamic international law.’28
2.) The idiom of intra-territorial hierarchical assertion: Emerging on a
more protracted basis over the course of the first three to four centuries of the
Islamic era, the second mode of land’s idiomization was built on another set
of conventions drawn from fiqh discourse. Alongside of the earlier-mentioned
concepts of milk, taṣarruf, and waqf, these included amīriyya or, as it was also
known, arāḍī al-amīriyya and arāḍī al-mamlaka/sultaniyya. In contrast to the
first mode of idiomization—and the more specific fiqh discourse of siyar it
underpinned—the conventions of the second mode became important for
elaborating a distinct ideal of territoriality early in the history of Islamicate
imperium. It did so by classifying landed space within the dār al-Islām based
on the aim of asserting hierarchical socio-political control over it.29
According to the common way of translating terms, the major concepts of
the second mode—such as milk, taṣarruf, waqf, and amīriyya—are usually
made to stand for rights of ‘private ownership,’ ‘possession,’ ‘trust,’ and ‘state
ownership,’ respectively. In each case, however, the seemingly straightforward
equivalency is problematic. With respect to ‘state-ownership,’ for example,
even putting aside the anachronism of the public/private divide, amīriyya was
not the only means for removing the revenue of land form the hands of non-
officials. Arāḍī al-ḥawz, ‘sequestered land,’ designated areas that were seized
from “private” individuals who were deemed unable to pay the associated dues
and assigned, instead, to the supervision of the “public” treasury.30

26 For a more comprehensive overview, see A. Al-Dawoody, The Islamic Law of War:
Justifications and Regulations (New York: Palgrave Macmillan, 2011): 71-106.
27 K. Abou El Fadl, The Great Theft: Wrestling Islam from the Extremists (San Francisco:
Harper Collins, 2005): 227; M. Khadduri, The Islamic Law of Nations: Shaybānī’s Siyar
(Baltimore: Johns Hopkins University Press, 1966): 10-22.
28 As an ordinary term, siyar was the plural of sīra (meaning ‘conduct’). Ibid.: 109. The key
early figure (albeit not the first) to be associated with the siyar tradition was the Kufan
Ḥanafī jurist Muhammad al-Shaybānī (d. 805). See Khadduri, The Islamic Law of Nations
for the authoritative translation of the text and details on its author’s life.
29 For a more traditional account of these and many of the other terms under discussion,
see A.N. Poliak, “Classification of Lands in the Islamic Law and Its Technical Terms.” The
American Journal of Semitic Languages and Literatures 57/1 (1940): 50-62 (which instead
proceeds by tracing the serial progression of the “book of Kharāj” genre up through the
time of ʿAbbāsid official Abu al-Hasan al-Mawardi (d. 1058) and his famed al-Ahkam
al-Sultaniyya).
30 See, also K. Cuno, “Was the Land of Ottoman Syria Miri or Milk? An Examination of
Juridical Differences within the Hanafi School.” Studia Islamica 81 (1995): 123-31.

jesho 61 (2018) 920-975

934 Chaudhry

Yet the problem is not simply one of translating non-Western social and po-
litical categories into the terms of Western rule of law discourse. Rather, even
as the concepts of the second mode of land’s idiomization stabilized in their
technical meanings (to whatever extent they actually did), they were not strict-
ly separable from the specialist lexicon of the third mode. Having co-evolved
with the idiom of intra-territorial hierarchical assertion, as an idiom of finan-
cial exaction the third mode did not furnish any completely autonomous set
of “taxation” categories. Rather, its conventions also functioned as means for
talking about land within the domain of Islamicate imperium and thus could
overlap with and supplement concepts like milk, taṣarruf, waqf, and amīriyya.
As a result, the concepts of the third mode of idiomization generally made it
easier to classify land in a way that effectively apportioned its control based on
a graded continuum rather than binary distinction between ownership and its
opposite. I turn to the more specific contents of the third mode directly.
3.) The idiom of financial exaction: Also emerging from the discourse of
the fiqh, the idiom of financial exaction included concepts such as ghanīma,
fayʿ, khums, jizya, kharāj and ʿushr. While only kharāj and ʿushr were exclu-
sively linked to land, all of these concepts were closely tied to the process of
territorial consolidation during the formative era of Islamicate expansion that
witnessed Arab and later Turkic Muslim armies moving across and then far
outside of the Arabian Peninsula.31
Rooted in Qurʾānic prescriptions, khums (lit. a fifth-part) designated a propor-
tion to be subtracted from valuables appropriated from the vanquished. More
importantly, khums helped distinguish the two related concepts of ghanīma
and fayʿ to both of which it applied. While some jurists would eventually come
to see ghanīma expansively as comprising things in general the acquisition of
which produced windfall gains (the quintessential example being buried trea-
sure), it originally designated booty taken in the course of war making. Fayʿ,
on the other hand, involved valuables seized from the vanquished under the
terms of a negotiated peace or after the end of active conflict.32 Whereas in

31 Indeed, these categories started out being as intimately tied to siyar discourse as they
were to the terms of the second mode of idiomization, and all were a part of a key cluster
of concepts Shaybāni relied on in his Siyar al-Ṣaghīr. See Khadduri, The Islamic Law of
Nations: 48.
32 Tabātabāʾi, Kharāj in Islamic Law: 9-15. Another difference between ghanīma and fayʿ was
that the former was often imagined to be confined to non-landed takings in a way that the
latter was not. See also Z. Haque, Landlord and Peasant in Early Islam: A Study of the Legal
Doctrine of Muzāraʿa or Sharecropping (Islamabad: Islamic Research Institute, 1977): 117-
50; A. Sachedina, “Al-Khums: The Fifth in the Imāmī Shīʿī Legal System.” Journal of Near
Eastern Studies 39/4 (1980): 275-89.

jesho 61 (2018) 920-975

Property and Its Rule 935

the case of fayʿ, after the subtraction of the khums,33 what remained was to be
notionally allotted to the Muslim community at large, in the case of ghanīma
what remained went alone to the members of the warrior class responsible for
its taking.
Besides the khums, the Qurʾān explicitly specified only two other major ex-
actions: the zakāt, or the alms that Muslims were supposed to pay, and the jizya,
which comprised the so-called head or poll tax on non-Muslims.34 Because
these conventions quickly came to be seen as attaching to persons rather than
inanimate things, however, it was the conceptual cluster connecting khums,
ghanīma, and fayʿ that was the more central to reckoning with land absorbed
through the process of imperial expansion.
With the conquest of Syria and then the Jazīrah (the region between the
Tigris and Euphrates rivers extending upland across northwestern Iraq), al-
ready by the mid-640s military personnel were vehemently demanding that
such areas be classed as ghanīma so as to be confined to their own ranks. By
dispossessing pre-existing non-Muslim notables, this would both undermine
an important competitor for dominance over provincial society and poten-
tially secure the decommissioned soldiery’s position vis-à-vis the emerging
empire’s wider political class. Rejecting any treatment of Syria or the Jazīrah
as ghanīma, however, the second pre-Umayyad caliph, ‘Umar b. al-Khaṭṭāb
(r. 634-644), resolved the incipient competition in favor of the political wing
of the state.35 As a result, already at the outset of this initial period of state
formation, conquered lands were classed as fayʿ that notionally belonged to all
(Muslim) subjects within the dār al-Islām.
Yet this arrangement should not be regarded as more determinate than it
actually was. There was still a winding path that remained through which fayʿ
lands would themselves be reclassified—primarily in terms of the category of
kharāj. In fact, already under ‘Umar’s rule the possibility of designating Syria as
“a waqf for the Muslim community”36—rather than fayʿ—is reported to have
been considered. If the two alternatives differed, it is likely because classify-
ing Syria as waqf rather than fayʿ would have made more explicit the fact that

33 The matter attracted considerable disagreement, with various jurists insisting that—at
least in theory—the khums still existed inside of the Muslim community’s fayʿ. Ibid.: 281.
34 For a discussion of Qurʾānic ‘taxation’ concepts, including the supererogatory comple-
ment to the obligatory zakāt (that is, the ṣadaqa, which is often discussed under the same
heading as the latter), see S. Bashear, “On the Origins and Development of the Meaning of
zakāt in Early Islam.” Arabica T. 40, Fasc. 1 (1993): 84-113.
35 Katbi, Islamic Land Tax-Al-Kharāj: 7-9.
36 Ibid.: 9.

jesho 61 (2018) 920-975

936 Chaudhry

individual Muslims had only a select ‘usufruct’ or ‘beneficial enjoyment’ in

what had been allotted to the community at large, rather than full ‘ownership.’37
To the extent that this was the case, it is a reminder that much of the origi-
nal appeal of the concept of kharāj as well was as more than simply a straight-
forward “tax” indicative of the sovereign’s ownership claim. Indeed, as used
in the Qurʾān, the concept signified a rightful income or bounty as much as
it did any obligatory charge thereon.38 It is partly because of this feature that
the early notion of kharāj started out as a synonym for the Qurʾānic concept of
jizya more than fayʿ; like the former it more closely attached to the persons of
non-Muslim notables than, like the latter, their lands.
As for the process by which the concept of kharāj was generalized be-
yond non-Muslims,39 it started only at the outset of the eighth century of the
Common Era amidst a period of mounting fiscal crisis under the Umayyad
Caliphate. The preferential fiscal status of Muslims—who merely had to pay
the ʿushr—threatened to compound the situation by eliminating the kharāj-
paying stratum altogether by incentivizing the large-scale conversion of non-
Muslim notables to Islam.40 Yet even as the concept of kharāj matured as it was
extended to the Muslim population, it resisted reduction to a mere taxation
category. Of course, in one sense, kharāj’s character as a tax was refined as time
went by insofar as it was differentiated from the jizya. However, as the con-
cept simultaneously was made to supersede that of fayʿ it also became a more
fine-grained means for talking about controlling land based on the bounty the
earth was imagined to be capable of bringing forth.
This indeterminacy in the concept of kharāj followed from a larger over-
arching logic of land’s idiomization in the Islamicate tradition. While one may
thus deem kharāj or ʿushr forms of agricultural taxation in the same way that
one can identify fayʿ, milk, or amīriyya as Islamic property rights terms, the
more pertinent fact is that they were all united as part of a system of conven-
tions for prioritizing an ever-present working distinction between land and
the produce it could generate. Relative to this priority, any consciously avowed
distinction that Islamic jurists recognized between what we might translate as
‘full ownership’ or ‘usufruct’ and their ostensible substrate in landed space was

37 Ibid.: 9-10
38 Ibid.: xiii, 14-22.
39 That is, those who acquired control over areas that had not been assigned to residual non-
Muslim notables.
40 The ʿushr is typically described as a tithe that came to be rated on paper at ten percent
of produce and that was often styled as a kind of zakāt payment, see T. Sato, “ʿUshr.” In
Encyclopaedia of Islam, Second Edition, ed. P. Bearman, et al. Consulted online on 22 July
2016 <http://proxy.library.upenn.edu:2146/10.1163/1573-3912_islam_COM_1309>

jesho 61 (2018) 920-975

Property and Its Rule 937

of secondary importance. That is, even if ultimately resting on terra firma, the
land-related conventions of fiqh discourse attached first and foremost to an in-
termediate substrate—of agricultural produce—that already represented an
abstraction from the earth’s irreducible terrain.
To envision the kharāj strictly as a tax and its payer strictly as an owner is
thus liable to mislead in much the same way as does the long-standing orien-
talist trope of the Islamic sovereign as the sole (despotic) proprietor of all the
soil under its dominion. For example, the very purpose of privileging kharāj
over ʿushr was to maximize the state’s claim over the soil’s true bounty while
keeping intact the claims of social notables to the same; and doing so was
workable only if the object of idiomization was something more easily appor-
tionable than land’s immediate spatial materiality. Indeed, the all-important
nature of this working distinction between land and its produce was also cen-
tral to so-called Islamic contract law. For example, despite the difference be-
tween the two key forms of agreements known as ijāra and muzār‘a41 each
was fundamentally geared toward structuring relations between superiors and
subordinates through the apportionment of produce.42
This focus on abstracting landed space into the more readily apportion-
able substance of its produce—and, at a deeper level, prioritizing its mobility
as re-appropriable surplus—should not be surprising. Relative to the forms
of political economy against the backdrop of which fiqh-based modes of id-
iomization first evolved during the formative period of Islamicate expansion,
land supply was hardly pressed to the limit of scarcity. Furthermore, whatev-
er immediate constraints may have existed on usable soil (for cultivation or

41 These are conventionally defined as a contract for lease or tenancy and a contract for
sharecropping, respectively. There were also different variations on these forms like the
musāqāt, which applied to the produce of fruit trees. For a summary, see S. Joseph, Islamic
Law on Peasant Usufruct in Ottoman Syria: 17th to Early 19th Century (Boston: Brill, 2012):
66-70.
42 Baber Johansen links the post-fifteenth-century rise of these concepts to the so-called
death of the kharāj payer in Ḥanafī thought (especially by late Mamluk/early Ottoman
times). This he reads as sanctioning the public taking of private lands through reduc-
ing former ‘property’ holders (meaning, those with an obligation to pay kharāj) to mere
(ijāra/muzār‘a-based) “tenants” of the state, see B. Johansen, The Islamic Law of Land
Tax and Rent (New York: Croom Helm, 1988). Without discounting the importance of
Johansen’s landmark study, it is nevertheless important to see the seemingly anachronis-
tic way it relies on invoking notions of ‘lease,’ ‘tenancy,’ ‘rent,’ and ‘tax’—as well as ‘con-
tract’ and ‘property,’ not to mention a perhaps too rose-colored view of the composition
of the pre-fifteenth century kharāj paying/land controlling ‘peasantry’ in the Near East
and Central Asia. For a similar critique, see Z. Ghazzal, The Grammars of Adjudication:
the Economics of Judicial Decision Making in fin-de-siècle Ottoman Beirut and Damascus
(Presses de l’Ifpo, 2007): ch. 4, par 15.

jesho 61 (2018) 920-975

938 Chaudhry

pasture), prevailing political economic forms—whether seen as pre-capitalist

or as harboring substantial enclaves of capitalist profit-making—did not entail
any system of allocation based on a widespread factor market transforming
land into a generalized commodity in its own right. Finally, these background
conditions did not simply unite ostensibly disparate “legal” concepts that origi-
nated in the discourse of the fuqahāʾ—like kharāj, fayʿ, waqf, milk, amīrīyya,
ijāra and muzār‘a—among themselves; they also united them with the catego-
ries of the fourth mode of idiomization, notwithstanding its origins in a more
discernibly “administrative” set of exigencies.
4.) The idiom of bureaucratizing financial assignment: At the center of
the fourth mode of idiomization was the concept of iqṭā‘,43 which is typically
described as a type of land grant or prebendal benefice. The iqṭā‘ is also usually
introduced with the warning that it not be mistaken for a mere Islamic version
of the medieval Western fief.44 Although the general term (and related gram-
matical forms) can be traced back much earlier in the history of Islamicate ex-
pansion, the concept of iqṭā‘ reached a turning point during the tenth century
of the common era with the rise of Buyid power in Iran.45
The initial institutional manifestation of the concept as a means of pub-
lic administration was thus linked to the early history of ʿAbbāsid decline
and the concomitant transition away from the “old gold economy” of the first
Islamic centuries,46 which had developed after Arab expansion reconnected

43 The term iqṭā‘ was further linked to various sub-headings according to which it was
more precisely defined. Mawardi, himself, divided iqṭā al-tamlīk from iqṭā al-istighlāl
(the two usually being contrasted in terms of grants over wastelands versus grants more
closely approximating revenue farming). How or if iqṭā al-tamlīk and iqṭā al-arḍ dif-
fered is also a persistent matter of debate; tellingly, among the grounds for insisting they
did not is that iqṭā al-tamlīk was really a form of muzāraʿa, see I. Lapidus, A History of
Islamic Societies (New York: Cambridge University Press, 2014): 81 and Tabātabāʾi, Kharāj
in Islamic Law: 6-7; Claude Cahen, “Iḳṭāʿ.” In Encyclopaedia of Islam: consulted online
14 May 2016 <http://proxy.library.upenn.edu:2347/entries/encyclopaedia-of-islam-2/ikta
-SIM_3522>.
44 See, e.g., A. Lambton, Landlord and Peasant in Persia: A Study of Land Tenure and Land
Revenue Administration (New York: I.B. Tauris,1991 [1969]): 53-4; Johansen, Islamic Law of
Land Tax and Rent: 80-1; André Wink, Al Hind: The Making of the Indo-Islamic World, vol. 1:
Early Medieval India and the Expansion of Islam, 7th-11th Centuries (New York: E.J. Brill,
1991): 12; Cahen, “Iḳṭāʿ.”
45 As terms with a common root, iqṭāʿ and muqāṭaʿa long denoted very different and even
unrelated things. See Tabātabāʾi, Kharāj in Islamic Law: 4-5; Katbi, Islamic Land Tax-Al
Kharāj: xvi; and Cahen, “Iḳṭā.” Cahen, especially, demonstrates how complex these rela-
tionships were.
46 Lambton, Landlord and Peasant in Persia: 49. Already well before the tenth century of
the common era—and, hence, before the rise of the iqṭā‘—Islamicate polities were

jesho 61 (2018) 920-975

Property and Its Rule 939

the Mediterranean and Indian Ocean domains of the ancient Eurasian trad-
ing world through renewed monetary union.47 Under the Buyids, however, the
iqṭāʿ was still primarily “an equivalent of pay granted for a short time.” Only
with the ongoing retreat from the golden age of ʿAbbāsid power and the rise
of the Seljuq dynasty was it more extensively generalized across the Islamicate
world; and only with the subsequent dissipation of Seljuq power itself was it
fully transformed as inheritor regimes adapted the iqṭāʿ for administrative pur-
poses beyond covering short-term pay.48
Separate and apart from the chronology of the rise of the iqṭāʿ, as André
Wink observes, the institution’s maturation cannot be understood with-
out taking note of its role in signaling a new era in which land more than
“[d]ethesaurized gold, booty” and precious metals became the basis of
Islamicate political economies. Functionally speaking, the iqṭāʿ was thus a
mechanism for minimizing the volatility of annual revenue. Its rise was linked
to the fact that such funds increasingly derived from a source—namely, land—
that was less abstract than bullion, confiscated specie, or other forms of chat-
tels capable of being easily converted into money. For this reason, in theory,
the holder of the iqṭāʿ (the muqṭaʿ) obtained only a right to a salary collected
at the source, with the value of that salary, also in theory, to be predetermined
from cadastral survey.49
However, despite beginning as a complement to the kharāj and eventually
becoming an outright substitute for it, the iqṭā‘ was more than simply a right
to collect taxes. Originally, grants in iqṭā‘ were never conceptualized as any
wholesale outsourcing of the revenue power of the imperial center, whether as
emanating from the treasury/bayt al-māl, or—as under many Islamicate poli-
ties— from the land tax bureau/dīwān al-kharāj. From what iqṭā‘ holders took
in they were supposed to retain only the difference between the kharāj and the
ʿushr, which still had to be conveyed to the sovereign.50 As time passed and
the post hoc rationalization of the iqṭā‘ in terms of canonical fiqh categories
became less significant than the de facto social power of the grantees, their
claims did tend to displace those of the political center.51 However, because
theoretically speaking holders of iqṭā‘ still held no permanent stake in the soil,

becoming dependent on a cash nexus connecting state and society through payment of
revenue in coin rather than kind.
47 Wink, Al-Hind, vol. 1: 10.
48 Cahen, “Iḳṭāʿ.”
49 Wink, Al-Hind, vol. 1: 13.
50 Lapidus, A History of Islamic Societies: 81; Tsugitaka Sato, State and Rural Society in
Medieval Islam: Sultans, Muqtaʻs and Fallahun (New York: Brill, 1997): 10.
51 Lambton, Landlord and Peasant in Persia: 72; Cahen, “Iḳṭāʿ.”

jesho 61 (2018) 920-975

940 Chaudhry

the new de facto situation meant that the muqṭā‘s increasingly came to blur
the line between a decentralized tax-collecting bureaucracy and a corpus of
permanent entitlement holding private notables. In the process, the solidifica-
tion of their rights only intensified the focus of Islamicate modes of idiomiza-
tion on the relatively more abstract substance—whether in cash or kind—that
land generated more than land itself.
After its early post-ʿAbbāsid maturation, the iqṭā‘ continued to adapt as
the institution met new local circumstances and incorporated elements of
other broadly similar practices. By early modern times, the holdover effects
of Il-Khānid, Chagatay and Timurid rule meant that in Iran under the Safavids
and in Central Asia under the Uzbeks the iqṭā‘ was re-inscribed in terms of
the Mongol tuyūl (or, as it was known under the Mongols when the benefice
became hereditary, the suyūrghal). In the Ottoman empire, the comparable
evolution of the iqṭā‘ took place under the rubric of the tīmār (adapted from
the Persian for ‘care’), which at least before the seventeenth century was still
predominantly a form of benefice for cavalry leaders.52 In the Mughal em-
pire—where the commitment to severing the iqṭā‘ from the soil by ensuring
that it remain temporary was likely the most rigorous—it was the jāgīr that
played the same role.53
These modifications notwithstanding, as Anne Lambton observes, under-
neath them all was still, in essence, the iqṭā‘ that remained. With its redoubled
emphasis on abstracting the material substrate of the earth into more readily
apportionable form, the iqṭā‘ was thus key in underpinning land control re-
gimes throughout the Islamicate world until the advent of the long nineteenth
century.54

2 Land’s Idiomization and the Deontic Cultures of Early Modern

Political Society

If we accept that Islamicate discourse about land can be reconstructed accord-

ing to the four modes of idiomization outlined above, a further question pres-
ents itself about how exactly to specify what is at stake in describing matters
in such terms. If even within the (Western) historical tradition to which it was

52 D. Howard, The Ottoman Timar System and its Transformation, 1563-1656 (Unpublished
PhD dissertation, Indiana University, 1987).
53 History of Civilizations Of Central Asia: Development In Contrast: from the Sixteenth to the
Mid-Nineteenth Century, ed. C. Adle and I. Habib (Paris: unesco Publishing, 2003): 350-1.
54 Lambton, Landlord and Peasant in Persia: 53.

jesho 61 (2018) 920-975

Property and Its Rule 941

indigenous ‘property’ was an idiom, then why should extending its use for the
purposes of translating idioms of land control native to other historical tradi-
tions pose any problem? To address this question, the present section provides
a genealogical account of property’s development within the discourses of po-
litical economy and the rule of law in the early modern West. More specifically,
as an idiom I consider its relationship with associated ideas of taxation and
rent in the formulation of a broader deontic culture (of rights and responsibili-
ties) based in land. The section then concludes by comparing and contrasting
the cultures of rights and responsibilities that were characteristic of Indo-
Islamicate political societies in early modern South Asia.

2.1 The (In)Adequacy of ‘Property Law’ and ‘Property Relations’?

In interrogating the possible limits on the extensibility of the idiom of proper-
ty, one must begin from a broader consideration of deontic culture. Of course,
imperium in the early modern West and the (Indo-)Islamicate world may still
have been predicated on underlying political economic forms that were hardly
incommensurable with one another. However, the respective concepts of land
control through which those forms were reckoned had greater leeway to vary.
Moreover, land control concepts, themselves, imposed even less constraint on
broader representations within political society about what it meant to have,
be bound by, and exercise rights and responsibilities in the first place.
For the Islamicate world, above all it may be historians of South Asia who have
sought to understand the deeper meanings that attached to rights and responsi-
bilities during early modern times. Often in the course of debating the nature of
late pre-colonial society, many have thus called attention to the inadequacy of
looking at land control in the subcontinent based on the seemingly dominant
model in Western politico-legal discourse of property as an ostensibly absolute,
unitary, and exclusive dominion.55 As Gregory Kozlowski observes, for example,
the Mughal polity was one in which “owning” land did not define social domi-
nance” so much as “ruling and exacting tribute from the people living on it did.”56

55 Of course, it is important to note that ‘the right to property’ was always less than absolute
as a jural matter in the legal traditions of the West. (This, moreover, is aside from the
question of whether there was ever just a single ‘Western’ concept of property.) That said,
one must not discount the importance of the notional idea that ‘the right to property’ in
the Western tradition was absolute (as well as unitary and exclusive). Whatever its status
jurally, in the broader public sphere the notional idea of property’s absoluteness made for
a supposed truth of no small importance. See, e.g., R.W. Gordon, “Paradoxical Property.”
In Early Modern Conceptions of Property, ed. J. Brewer and S. Staves (New York: Routledge
1995): 96.
56 Gregory Kozlowski, “Muslim Women and the Control of Property in North India.” Indian
Economic and Social History Review 24/2 (1987): 165.

jesho 61 (2018) 920-975

942 Chaudhry

Even notwithstanding the further complexities of the co-mingling of Islamicate

and Indic modes of idiomizing land, Kozlowski’s description is prescient well
beyond the South Asian edge of the dār al-Islām. Insofar as it reminds us that
Islamicate discourses were trained on land’s produce more than land itself, it
also gives further reason for pause before assuming that idiomization was sim-
ply a search for non-Western forms of the ‘law of property.’
Yet even in the West, it was not simply through the language of law that land
was idiomized in property’s name. Nor, therefore, can we fully adjudicate the
adequacy of extending property as a conceptual idiom for describing the his-
tory of political society beyond the West based on the discourse of the rule of
law alone. This point must be kept in mind especially in the context of early
modern political society in South Asia where by Mughal times the center of
idiomizing gravity within Indo-Islamicate land control discourse had shifted
toward the concept of iqṭā‘. Accordingly, if Mughal rule in the subcontinent
involved a sovereign claim on land’s produce approximating anything like the
entirety of what remained above the producer’s subsistence—as has often
been argued—it would have been the idiom of bureaucratizing financial as-
signment that was its vehicle.57 That is, the Mughal jāgīr system would have
been best placed for perfecting a system of land control befitting what Marx
famously called a circumstance in which “rent and taxes coincide.”58
Indeed, it would be a great oversimplification to read Marx’s highlighting of
such a coincidence as the product solely or even mainly of orientalist preju-
dice. To the contrary, so too was he elaborating a concept of an Asiatic mode of
production on grounds of an analytically precise notion of property —here of
sovereign property. To be fair, then, it is necessary to see that especially where
production involved little capital, the coincidence of tax and rent would not

57 The question of how closely the revenue demand approached a maximum over subsis-
tence is a contentious one. In the Mughal context compare I. Habib, The Agrarian System
of Mughal India, 1556-1707 (New York: Oxford University Press, 1999 [1963]): 230-6 and
J. Richards, The Mughal Empire (New York: Cambridge University Press, 1995): 86. For an
attempt to arbitrate competing views, see S. Bose and A. Jalal, Modern South Asia: History,
Culture, Political Economy (New York: Routledge, 2004): 33-4. For a comparison with the
Ottoman case, which is different on various grounds, not the least of them having to do
with the greater importance of non-land based sources of revenue, see H. İslamoğlu-İnan,
State and Peasant in the Ottoman Empire: Agrarian Power Relations and Regional Economic
Development in Ottoman Anatolia During the Sixteenth Century (New York: Brill, 1994):
43-7. On the Ottoman tīmār, see An Economic and Social History of the Ottoman Empire,
1300-1914, ed. H. Inalcik and D. Quataert (New York: Cambridge University Press, 1994):
55-102.
58 K. Marx, Capital: A Critique of Political Economy, Vol. 3 (New York: Penguin, 1993): 927.

jesho 61 (2018) 920-975

Property and Its Rule 943

have defined a condition of state “ownership” because the sovereign’s foot-

print had to be imagined as covering every square meter of the Asiatic polity’s
ground. Rather, the sovereign only had to be imagined as (allegedly) envelop-
ing all of that which property was envisioned, most essentially, to entitle the
proprietor to—namely, the abstract quantum of value that land was seen as
uniquely capable of generating.
Ultimately, then, to the extent that the idiom of bureaucratizing financial
assignment further intensified the focus of Islamicate idioms on land’s pro-
duce, it raises a question that is adjacent to but distinct from asking why those
idioms cannot just as well be seen as comprising an ‘Islamic law of property.’
Why, in other words, should Islamicate discourses relating to land not just as
well be reduced to a set of resources for making manifest the ‘property rela-
tions’ through which agrarian surplus was appropriated?
At least two points are worth making in response if we are to truly grap-
ple with the possible inadequacy of extending property’s use as a conceptual
idiom for describing the history of political society beyond the West. First, to
some extent, it is certainly true that Islamicate idioms furnished the more pre-
cise terms on the basis of which inter-subjective flows of surplus took place.
Second, however, the analytical perspective from ‘property relations’ is still li-
able to be incomplete or even misleading. This is because the idea of surplus at
its center is intelligible only based on a particular conception of property; and
like the conception that emerged from within the discourse of the rule of law,
it too was contingent on a discursive tradition—namely, of classical political
economy—that had its own history.
Understood as a product of the historically specific intellectual tradition of
political economy, the connection between property and surplus appropria-
tion originated from identifying ownership with a monopoly-like claim on a
special quantum of value issuing from land that first took the name of ‘rent’.
On this view, rather than denoting the customary or agreed-upon payment that
agrarian tenants made to their superiors, economic rent was a kind of waste
that imposed a surcharge on production. This sense of the term must thus be
contrasted with an idea like ujra in fiqh discourse, which although often trans-
lated by contemporary Islamic legal studies scholars as rent was more akin to
what common lawyers call contractual consideration.59 As much as the legal

59 Islam, “Al-Mal”: 368; and Johansen, The Islamic Law of Land Tax and Rent: 26-7. In an ijāra
‘contract’ (for ‘lease’ or ‘hire’) Islamic jurists thus saw the ujra as an equivalent the les-
see exchanged for the benefits/usufruct—known as the manāfi‘ (or tamlīk al- manāfi‘)—
obtained from the lessor. To the extent that the ujra was an ongoing ‘contractual rent’ paid

jesho 61 (2018) 920-975

944 Chaudhry

concept of property, therefore, that which was built from classical political
economy’s idea of rent raises—rather than answers—the question of how uni-
versally extensible any such idiom truly is beyond the Western context.

2.2 Property as Rent in the Early Modern Discourse of Classical Political

Economy
As is reasonably well known, within the tradition of classical political econo-
my rent first became a topic of highly visible concern during the second de-
cade of the nineteenth century. Building on the earlier interest of the French
Physiocrats and Adam Smith in more systematically defining the different
shares of income flowing to society’s main social classes, the British econo-
mists David Ricardo and Thomas Malthus notably arrived at broadly similar
views about rent as the specific portion of revenue that returned back to the
owners of land.60 Notwithstanding other pertinent disagreements between
them, Ricardo and Malthus thus both saw rent as comprising a differential in
the productive capacity of superior lands compared to lands at the margin of
cultivation; or, as Ricardo famously put it, rent was nothing other than “the
produce obtained” from the same or different pieces of land “by the employ-
ment of two equal quantities of capital and labour” upon it/them.61
Rendered much less visible, if at all so, through historical scrutiny, however,
has been the role of the idea of rent as a basis for a competing conception
of property that started to emerge within political economic discourse well
before the onset of the nineteenth century. To understand the origins of this

by tenants in the agrarian context, it is important to see that the underlying structural
conditions of Islamicate political economies did not require any strong tendency for such
payments to equilibrate at the level of true competition rents. As John Stuart Mill long ago
argued, conventional rates—whether determined by custom or pre-stipulated contractu-
ally—needed not naturally to morph into competition rates anywhere, absent a general-
ized commodification of social relations. See J.S. Mill, Principles of Political Economy (New
York: Prometheus Books, 2004 [1848]): 245.
60 See, e.g., D. Ricardo, On the Principles of Political Economy and Taxation, in The Works and
Correspondences of David Ricardo, Vol. 1, ed. P. Sraffa (New York: Cambridge University
Press, 1951) and T. Malthus, An Inquiry into the Nature and Progress of Rent, and the
Principles by which it is Regulated (London: Murray, 1815). While Ricardo and Malthus’
respective answers to the question of what rent was overlapped in notable ways, it was
their clashing views about rent’s role in the maintenance and expansion of economies
(and, hence, their views about the policies to which landlords should be subject) that was
the central issue in their intellectual relationship.
61 Ricardo, On the Principles of Political Economy and Taxation: 71.

jesho 61 (2018) 920-975

Property and Its Rule 945

alternative way of idiomizing land in the name of property, it is necessary to

reach back to the early seventeenth century.62
As the political scientist David McNally has clarified, a new technical notion
of rent first became visible with the writings of Thomas Mun in the 1620s. It
was during this time that a new version of the concept began to precipitate
out of the semantic mix of ordinary English into which its meaning had dis-
persed after originating as part of thirteenth-century French financial usage to
specify a particular class of annuities (rente).63 While Mun’s English Treasure
by Foreign Trade is typically seen as a paradigmatic mercantilist treatise,64 the
text takes pains to develop a connection between the balance of trade—the
much-scorned centerpiece of so-called pre-scientific economic thought—and
the increasing price of farm commodities. On Mun’s view, the net influx of
specie was thus important not as an end in itself but because of its effect on
increasing the total quantity of what he called (agricultural) “rent”.65
Even more than Mun, however, in the seventeenth century it was his fellow
Englishman and inheritor of greater renown, William Petty, who reoriented
the meaning of the concept from its position within the language of everyday
life. The larger context in which Petty did so involved an effort to develop an
early, but still highly sophisticated, model of economic activity as a circular
flow of wealth. This Petty sought to do as part of a larger ambition to pioneer
a new discipline he called “political arithmetic.” The best-known work in this

62 It is obviously hazardous to generalize about “the” Western tradition. Nor is this the ap-
propriate space in which to attempt to do so in any extended way. As a disclaimer, there-
fore, it should be noted that the present observations are worth making because they are
not otherwise easily found in the relevant literature. The closest one comes is in David
McNally, Political Economy and the Rise of Capitalism: A Reinterpretation (Los Angeles:
University of California Press, 1988). Even McNally, however, tends to simply historicize
the concept of rent more than he attempts to connect it to any alternative conception of
property.
63 As Niall Ferguson explains, rente annuities arose out of the problem city states faced in
financing their deficits without Church censure in the thirteenth century. While prohibit-
ing interest, usury laws did not apply to medieval census deals, which enabled one party
to purchase an annual payment stream from another. Just as these purchased payment
streams took shape in the form of rentes heritables in Northern French towns, in Flemish
ones they became the basis for the erfelijkrenten, see his The Ascent of Money: A Financial
History of the World (New York: Penguin, 2009): 73-74. It was on the basis of this latter
technical meaning that the concept had first made its way into common law parlance—
as when stipulating the purchase price of land at “so many year’s rent”—in the precursor
form to the idea of a contractual rent that persists into the present.
64 T. Mun, England’s Treasure by Forraign Trade or the Balance of Forraign Trade is the Rule
of Our Treasure (London, 1664). Reprinted in Early English Tracts on Commerce, ed. J.R.
McCulloch (Norwich: Jarrold and Sons, 1952).
65 McNally, Political Economy and the Rise of Capitalism: 32.

jesho 61 (2018) 920-975

946 Chaudhry

new genre was 1662’s Treatise of Taxes and Contributions. In the text, Petty sug-
gested, in effect, that there was a metonymic correspondence between rent
and landed property. Accordingly, he treated rent as a stand-in for the overall
output of land (once costs of production were subtracted) rather than simply
as some special portion thereof.66
Petty’s way of equating land’s rent with that which in later economic writ-
ings would go on to become the idea of a surplus deriving from all factors of
production is notable for a number of reasons. First, it presaged the Physiocrats’
more advanced notion—emerging a century later—of land alone as the source
of the all-important produit net on which both the economy’s sustenance and
possible expansion depended;67 therefore, it also presaged the transition from
Physiocratic to classical political economic thought with the work of Smith.68
Second, it is emblematic of the gradual way that concepts could be refined
and re-naturalized in technical versus ordinary usage. Together, these first two
reasons point to a third as well. This is, namely, that Petty’s way of transforming
the ordinary language concept of rent into a means for getting at land’s truer
importance involved implicitly addressing the question of why people found
property worth having in the first place.
Although there can be no doubting the cogency of the conception of prop-
erty as an entitlement to economic rent, one must avoid assuming that it was
more historically central to land’s idiomization in the Western tradition than
it actually was. Even within economic discourse it was never land’s abstraction
into a separate stream of value capable of being appropriated by a distinct so-
cial class that was property’s dominant ideological valence—all the less so as
the nineteenth century wore on.69 In fact, by the time Ricardo was further re-
casting rent as an “unearned increment” unproductively taken by the landlord

66 Ibid.: 50 (quoting Petty, “A Treatise of Taxes and Contributions.” In Economic Writings of

Sir William Petty, ed. Charles Henry Hull [New York: Augustus M. Kelley, 1963 (1898)]: 43
[“when this man hath subducted his seed out of the proceed of his Harvest, and also,
what himself hath both eaten and given to others in exchange for Clothes, and other
Natural necessities; that the remainder of Corn is the natural and true Rent of Land for
that year”]).
67 Indeed, it was only with the perfection of what Marx bemusedly called the “trinity formu-
la” of classical political economy that Ricardo would fully differentiate rent from profit,
and the both from wages, see Marx, Capital, Volume III: 953-70.
68 On the importance of rent to the core thinkers of classical political economy after the
Physiocrats, see M. Hudson, Killing the Host: How Financial Parasites and Debt Bondage
Destroy the Global Economy (New York: Counterpunch Books, 2015): 52-64.
69 E.K. Hunt and Mark Lautzenheiser, A History of Economic Thought: A Critical Perspective
(New York: M.E. Sharpe, 2011).

jesho 61 (2018) 920-975

Property and Its Rule 947

class, any alternative idiomization of land in the name of property that the
concept undergirded was of secondary importance at best.70
Instead, it was land as an input to production and as an alienable commod-
ity in its own right that sustained the all-important role of propertied right
holding in the economic version of the narrative of modernity’s exceptional-
ism. According to that narrative, property was primarily an entitlement to ex-
ercise one’s liberty to truck, barter, and exchange in the market and, thereby,
become a free commercial agent.71

2.3 Property (without Rent) in the (Early Modern) Discourse of the Rule
of Law
In its capacity as an underpinning for the political narrative of modernity’s
exceptionalism, property was even more thoroughly severed from its identi-
fication with an entitlement to rent. In politico-legal discourse it was thus the
idiomization of land in its most immediate material presentation—as terres-
trial domain—on the basis of which propertied right holding was championed
loudest. While the ideological valence of facilitating liberty remained, here it
was the liberty of exercising a unitary and exclusive dominion over some part
of the earth so as to qualify for the status of self-determining citizen-subject.
In actuality, of course, property’s incarnation in the discourse of the rule
of law was no more pre-eternal or trans-historical than it was in the discourse
of political economy—even despite the ubiquity, nonetheless, of treating it
as timeless and given.72 As Clive Holmes notes, for example, in politico-legal

70 It was only in the second half of the nineteenth century—in John Stuart Mill and later
Henry George’s hands—that the phrase “unearned increment” came into full flower, see
M. Blaug, Economic Theory in Retrospect (New York: Cambridge University Press, 1996
[1962]): 29.
71 The description combines elements that one could distinguish according to their role
in comprising Lockean versus Utilitarian/Benthamite versus Hegelian theories of prop-
erty, see G. Alexander and E. Peñalver, An Introduction to Property Theory (New York:
Cambridge University Press, 2012): 11-69.
72 Perhaps more accurately, one should say that the right to property has been treated as
timeless and given ever since the ancien régime of landed feudal hierarchy is said to have
been displaced by an incipiently modern regime of ownership-based autonomy. This
has made for an interesting contrast in property’s evolutionary treatment across the
medieval/modern divide versus its treatment as a defining feature of modernity itself,
whether as an underpinning for liberal freedom, on the one hand, or republican virtue,
on the other. “Modern” property thus becomes laudatory on all fronts, being a facilitator
of autonomy for the individual and virtue—rather than hierarchy—at the level of the
collective; and in keeping with this image, it is imagined to have come into being through
nothing more than agentive effort: whether of the intellectual variety by great philoso-
phers and thinkers, communicatively in the everyday debates of the public sphere, or

jesho 61 (2018) 920-975

948 Chaudhry

discourse the “notion of the right to property” was “concretiz[ed] … from the
nebulous, conventional verbiage” that was its lexical source only starting in the
seventeenth century. Accordingly, its further “transmut[ation]” from a “narrow
concept” within “the technical vocabulary of late medieval lawyers” to an “ab-
stract right” took place much more recently than its generally assumed nature
usually admits.73
Yet, even Holmes’ observation is likely an understatement. This is because
rather than understanding matters in terms of how property was transmuted
into an abstract right, it would be more accurate to say that property, itself,
abstracted rights. That is, as a particularized element within politico-legal dis-
course ‘the right to property’ idiomized land in a way that set up a ready tem-
plate for thinking about the phenomenon of legal right in general. The image
of an ostensibly absolute and unitary dominion over that which was plainly
external to the self thus allowed rights to be intuited as irreducibly real parts of
the world, not to mention ones that could be seen as wielded by their holders to
the ostensible exclusion of all comers.74 Especially amidst the ongoing enclo-
sure of the commons and growth of capitalist agriculture, this identification of
legal right with (landed) property was likely as important to seventeenth- and
eighteenth-century enlightenment in the West as the vaunted post-humanist
secularization of natural rights theory was.75

practically through liberal democratic government and the market economy. See, e.g.,
I. Berlin, “Two Concepts of Liberty.” In Four Essays on Liberty (Oxford: Oxford University
Press, 1969): 118-72; R. Tuck, Natural Rights Theories: Their Origins and Development (New
York: Cambridge University Press, 1979); B. Tierney, The Idea of Natural Rights: Studies
on Natural Rights, Natural Law, and Church Law, 1150-1625 (Atlanta: Scholars Press, 1997);
Q. Skinner, Liberty Before Liberalism (New York: Cambridge University Press, 1998);
E. Ghosh, “From Republican to Liberal Liberty.” History of Political Thought 29 (2008): 132-
67. For a discussion of the idea of property’s specific relation to liberalism and republi-
canism, see Gregory Alexander, Commodity & Propriety: Competing Visions of Property in
American Legal Thought 1776-1970 (Chicago: University of Chicago Press, 1997).
73 C. Holmes, ‘”Parliament, Liberty, Taxation and Property.” In Parliament and Liberty from
the Reign of Elizabeth to the English Civil War, ed. Jack H. Hexter (Stanford, CA: Stanford
University Press, 1992): 138. Admittedly, Holmes is drawing only on the English case.
However, his account remains trenchant—and also ironic—given that it is the English
case that is most typically credited with being the West’s most robust and continuous as
far as the invocation of property as the mediator between (liberal) freedom and sovereign
authority goes.
74 On the importance of “absolute dominion talk,” see Gordon, “Paradoxical Property”: 96
and supra at note 55.
75 For a comparison with other accounts of property’s importance to rights talk in the
history of Western polity and economy, see, e.g., Alexander, Commodity & Propriety:
1-17; M. Howell, “The Language of Property in Early Modern Europe.” In The Culture of
Capital: Property, Cities, and Knowledge in Early Modern England, ed. Henry Turner

jesho 61 (2018) 920-975

Property and Its Rule 949

All told, then, property’s gradual reformulation in politico-legal discourse as

a synonym for the rights of liberal subjectivity occurred only in parallel with
the development of its rival incarnation. In this respect, the effort that went
into its making in politico-legal discourse was also, in effect, simultaneously
an effort to obscure that which it was partially becoming in the discourse of
political economy. Already from early modern times, therefore, the emerging
dominance of the politico-legal conception of property helped distance land’s
role as a source of right from its role as a source of obligation.76
This prying apart of the rights and obligations of land control would seem
to go some way toward explaining why there was little clearly apparent tradi-
tion in the West of celebrating the land tax as the sovereign’s own contribution
to keeping ‘property’ free—namely, by continuously rejuvenating its essence
through recirculation. After all, if defined as an entitlement to rent, property
would have carried obligations that were intelligible in precisely the same way
that its core right would have been, both equally being claims on the same es-
sential substance of unearned value in the abstract.
Of course, even if they were not actively conjoined through their shared
basis in abstract (rental) value, property and taxation were not entirely dis-
joined either. What in the English context J.G.A. Pocock famously called the
“theory of the ancient constitution” did create a common plane within polit-
ico-legal discourse on which they were partly linked as opposing forces; and
the earlier discussed lawyerly “redefinition of property” in the seventeenth
century did make a contribution to eventually “bar[ring] the Crown from rais-
ing taxes without parliamentary consent.”77

(New York Routledge, 2014 [2002]): 17-24; E. West, “Property Rights in the History of
Economic Thought.” In Property Rights: Cooperation, Conflict and Law, ed. T. Anderson
and F. McChesney, (Princeton, NJ: Princeton University Press, 2014): 20-42.
76 This observation is consistent with the general withering of the connection between
property and obligation that Carol Rose argues took place in the wake of a “great revolu-
tion” at the end of the eighteenth century. For Rose the withering becomes evident if one
compares the more substantial connection that existed between property and obligation
during the seventeenth and eighteenth centuries when the terms ‘property’ and ‘propri-
ety’ shared a clear semantic reference point. Because Rose’s focus is mainly on the con-
nection between property and the individual’s general obligations to the commonweal,
however, it is slightly different from the distance between the right to property and the
obligation of land taxation that I am arguing for here. Rose’s account focuses on obliga-
tion’s role in underpinning early modern “republican” visions of property more than any
latent conception of property as a monopoly-like claim on rent, see Rose, Property and
Persuasion: 58-65.
77 On the “theory of the ancient constitution” see J.G.A. Pocock, The Ancient Constitution and
the Feudal Law: a Study of English Historical Thought in the Seventeenth Century (New York:
Cambridge University Press, 1957). On the seventeenth-century lawyerly “redefinition of

jesho 61 (2018) 920-975

950 Chaudhry

However, the disjunction between property and taxation in the early mod-
ern deontic culture of the West followed from more than just the clash be-
tween the politico-legal conception of property (as physical dominion) and its
shadow conception in political economy (as an entitlement to rent). A host of
other factors distanced land’s role as a source of right from its role as a source
of obligation in much the same way that the general discounting of the politi-
cal economic conception of property as rent, itself, did.
Most obviously, there was the broader political context, which would see
the land tax continuously decline in importance after the beginning of the
eighteenth century. In England it remained a significant source of government
revenue only until the end of the War of Spanish Succession in 1714. In fact,
already with the founding of the Bank of England twenty years earlier, the na-
tional debt had started its ascent to becoming the premier mechanism for fi-
nancing the unprecedented expansion of Britain’s early modern military-fiscal
state, especially after the Act of Union in 1707.78
Harder to pin down but just as important is the more diffuse normative
ethos that surrounded taxation in general—as distinct from the land tax in
particular. As Holmes notes, already during the second half of the sixteenth
century Elizabeth’s various subsidy acts were justified mainly as a “matter of
gratitude, to the queen’s beneficent government” rather than “formal obliga-
tion.” Even closer to the end of the century, the basis of the Elizabethan state’s
general power to levy taxes was still “stated with [little] precise clarity,” let
alone of a kind “upon which the constitutional lawyer would insist.” Instead,
the power was legitimized primarily through “comfortably vague” rhetorical
appeals.79 Another half-century later, amidst the tumult of the 1640s, taxation

property” see Holmes, ‘Parliament, Liberty, Taxation and Property”: 142, 144. Even so, it
is equally certain that the incipient discourse of classical political economy, as a distinct
source of imagining, provided ample basis for questioning whether the obligation of taxa-
tion had to be construed strictly as the right to property’s antithesis.
78 M.J. Braddick, The Nerves of the State: Taxation and the Financing of the English State, 1558-
1714 (New York: Manchester University Press, 1996): 126. See also J. Brewer, The Sinews of
Power: War, Money and the English State, 1688-1783 (Boston: Unwin Hyman, 1989): 79-108.
79 Holmes, “Parliament, Liberty, Taxation and Property”: 152. Holmes’ observation serves to
qualify Rose’s earlier-cited view (see supra at note 76) about the withering of the connec-
tion between property and obligation in the nineteenth century. This is because whereas
Rose characterizes the period after the French Revolution as leading to the dissipation
of the connection between property and obligation, I am suggesting that the two were
increasingly paired together, albeit now as thesis and antithesis. Likewise, what Rose sees
as the previous (semantic) link between the two (that was rooted in the shared mean-
ings of ‘property’ and ‘propriety’) during the seventeenth and eighteenth centuries, I am
suggesting can just as well be seen as an independent co-existence made possible by the

jesho 61 (2018) 920-975

Property and Its Rule 951

continued to be rationalized mainly in terms of the Crown’s role in “the redress

of grievances” rather than on the basis of any encroachment it was somehow
insistently portrayed as representing upon property.80
By the time that revenue had become more fully parliamentary after the
civil war, therefore, there was simply “no … mileage in raising legal objections”
to ostensibly “unnecessary [tax] burdens.” Whatever gradual “harden[ing]” of
“theories of property” that simultaneously took place, then, it did little to create
any imaginary in which property (in land) and (land) taxation were strictly
joined as thesis and antithesis.81 More to the point is that at the very time that
property (in land) was being abstracted by English lawyers into a general idea
of legal right, land taxation was giving way in importance, both in the face of
other more ready sources of government revenue and a new “rhetoric of the
commonwealth” that facilitated access to them.82 Nor does the emergence of
opposition to non-land-related taxes during this period contradict such an ob-
servation; if anything, it would seem to support it. That is, it was only natural
that as it took more varied forms the power of the purse should have prompted
a refinement and expansion of taxation discourse—whether for or against any
particular new charge. In turn, as the space of imagination within which taxa-
tion discourse operated came to expand, it was equally natural for its content
to become more autonomous and disjoined from the new discourse of the in-
dividual’s propertied rights-bearing liberal subjectivity.83

2.4 Taxation, Idiomization, and Early Modern Indo-Islamicate

Imperium
The broader lesson about early modern deontic culture that we can learn from
the English/British example is not entirely confined to the political societies
of the West alone. After all, even in the latter context it was not solely the dis-
counting of political economy’s uncomfortable insights about (the right to)
property being a means of extracting economic rent that rendered the imagi-
nary of land as a source of right autonomous from that surrounding its role as
a source of obligation.
Any notion that states in early modern Asia were mechanisms of unchecked
surplus appropriation joining taxation and property through a relationship of

autonomy of the discursive spheres in which they each respectively tended to reside prior
to the full triumph of absolute dominion talk.
80 Ibid.: 152.
81 M.J. Braddick, State Formation in Early Modern England, c. 1550-1700 (New York: Cambridge
University Press, 2004): 272.
82 Holmes, “Parliament, Liberty, Taxation and Property”: 144.
83 See generally Braddick, The Nerves of the State: 131-53.

jesho 61 (2018) 920-975

952 Chaudhry

negation, for example, fails to recognize that political “centralization” was not
the same thing as imperial “reach.”84 It also greatly underplays the question
of how political society could have nonetheless held together as a normative
order. Suffice to say, the bonds on the basis of which it did so hardly would have
differed completely from those making taxation in Tudor and Stuart England
more a matter of “beneficen[ce],” “redress,” and reciprocity than any justified
invasion of property as its diametric opposite.85
To those familiar with state forms in late pre-colonial South Asia, in specific,
this should hardly be surprising. As historians of North and South India alike
have highlighted for more than a generation now, sovereignty in early modern
times involved a layering or sharing of authority. As such, it was made manifest
in the form of actually felt ties between superiors and subordinates—rather
than simply instrumentalized relations of clientelism—that were inaugurated
and renewed through ceremonial acts of affective and symbolic exchange.86
In early modern South Asia there were additional factors that bolstered the
autonomy of the imaginaries surrounding the role of land as a source of right and
its role as a source of obligation from one another as well. As discussed already
in section one, overall, Islamicate modes of idiomization differed even more
markedly from property’s emerging conceptualization in Western politico-
legal discourse (as a form of dominion over terrestrial space) than did its alter-
native conceptualization in Western political economy (as an entitlement to
rent). For reasons that both resembled and differed from those at play in early
modern England, then, Mughal deontic culture involved rights claims rooted
in land that were more than simply quid pro quo for increasing their holder’s

84 S. Rudolph, “State Formation in Asia–Prolegomenon to a Comparative Study.” The Journal

of Asian Studies 46 (1987): 731-46.
85 See supra at notes 79-80.
86 Themes to this effect run through studies far too numerous to exhaustively identify, see,
e.g. Rudolph, “State Formation in Asia;” J. Heitzman, Gifts of Power: Lordship in an Early
Indian State (New York: Oxford University Press, 1997); C. Talbot, Precolonial India in
Practice: Society, Region, and Identity in Medieval Andhra (New York: Oxford University
Press, 2001); The Mughal State, 1526-1750, ed. M. Alam and S. Subrahmanyam (New Delhi:
Oxford University Press, 1999): 1-71; Hardip Singh Syan, Sikh Militancy in the Seventeenth
Century: Religious Violence in Mughal and Early Modern India (New York: I.B. Tauris, 2012):
144-213; S. Gordon, Marathas, Marauders, and State Formation in Eighteenth-Century
India (Delhi: Oxford University Press, 1994); N. Dirks, The Hollow Crown: Ethnohistory of
an Indian Kingdom (Ann Arbor: University of Michigan Press, 1993); S. Sen, Empire of Free
Trade: The East India Company and the Making of the Colonial Marketplace (Philadelphia:
University of Pennsylvania Press, 1998): 1-88; Bose and Jalal, Modern South Asia: 83, 204,
206.

jesho 61 (2018) 920-975

Property and Its Rule 953

respective “legibility,” to borrow a phrase from James Scott, as sources of sov-

ereign revenue.87
Indeed, under Mughal governance the state-society continuum was such
that the relationship between subordinates and superiors at all levels was me-
diated by performative acts of mutuality and prestation. The prevailing deon-
tic ethic thus blurred the line between adhering to one’s duties on grounds
of compulsion and doing so for the sake of freely gifting the self. Moreover,
this was not simply the case with respect to obligations that were inaugurated
through/maintained by acts of exchange involving robes, ritual performances,
and other tokens of honor.88 It was also true in the context of exchanges in-
volving the productive output of land. Here, claims on produce were given and
taken neither simply as part of remunerating ‘taxes’ for ‘property’ nor even
simply as part of a competition for surplus. The sharing of productive output
instead flowed from an imaginary in which loyalties were secured on the basis
of the ability to treat material wealth donatively;89 and the blurring of the line
between compelled appropriation and the free gifting of the self applied as
much to relations running from sovereign to subordinate as it did to those run-
ning in the opposite direction.
It is here that the importance of distinguishing between ‘property law/rela-
tions’ and ‘modes of idiomizing’ land under (Indo-)Islamicate rule comes fur-
ther to light. This is because a deontic culture of the Mughal kind was more
liable to work smoothly where the material bearers of rank, prestige, and

87 J. Scott, Seeing Like a State: How Certain Schemes to Improve the Human Condition Have
Failed (New Haven: Yale University Press, 1998). Scott’s use of the notion of legibility, of
course, is elaborated primarily in relation to his focus on the modern state.
88 See, e.g., S. Gordon, Robes of Honour: Khil‘at in Pre-colonial and Colonial India (New York:
Oxford University Press, 2003); Sen, Empire of Free Trade: 1-88; A. Murphy, The Materiality
of the Past: History and Representation in Sikh Tradition (New York: Oxford University
Press, 2012).
89 See, e.g., D. Ludden, An Agrarian History of South Asia (New York: Cambridge University
Press, 2008 [1999]): 60-112; D. Kumar, “Private Property in Asia? The Case of Medieval South
India.” Comparative Studies in Society and History 27/2 (1985): 340-66; Kozlowski, “Muslim
Women and the Control of Property in North India;” F. Hasan, State and Locality in Mughal
India: Power Relations in Western India, c. 1572-1730 (New York: Cambridge University Press,
2004): 91-111; N. Dirks, “From Little King to Landlord: Property, Law, and the Gift under the
Madras Permanent Settlement.” Comparative Studies in Society and History 28/2 (1986):
307-33; D. Washbrook, “Sovereignty, Property, Land and Labour in Colonial South India.”
In Constituting Modernity: Private Property in the East and West, ed. Huri İslamoğlu (New
York: I.B. Tauris, 2004): 69-99; R. Sturman, “Property and Attachments: Defining Autonomy
and the Claims of Family in Nineteenth-Century Western India.” Comparative Studies in
Society and History 47/3 (2005): 611-37; M. Heim, Theories of the Gift in South Asia: Hindu,
Buddhist and Jain Reflections on Dāna (New York: Routledge, 2004).

jesho 61 (2018) 920-975

954 Chaudhry

reward that undergirded affective ties of felt boundedness were more rather
than less fixed and, hence, more rather than less re-apportionable between
superiors and subordinates. A system of idiomization focused on convention-
alizing control over land’s highly mobilizable produce was thus best suited to
meeting these criteria; one focused on conventionalizing ostensible dominion
over land’s in situ materiality as terrestrial space/substrate was bound to be
only much less so.
Of course, in its capacity as sovereign land revenue, the soil’s produce may
have been relatively more immobilized than if controlled strictly by produc-
ers and cultivators,90 whether because deposited in the central treasury or
assigned directly to a bureaucracy of provincially based notables as salaries.
Yet even when land’s produce took these forms, it still fell short of the alterna-
tive conception of property that the incipient discourse of political economy
threatened to make visible in the early modern West. Consider, for example,
the dividend of the soil’s productive value taken as land revenue from royal
demesne. Even relative to the idiom of financial exaction it was not absorbed
as any fixed “rent property,” in the sense of a distinct quantum of value under-
stood to be fastened to a particular class of appropriators as their return.91

90 The term ‘land revenue’ is historically ambiguous, having different reference points de-
pending on the context. For example, what the British called the land revenue included
both what the Mughals, relatively informally, designated as māl from land proper as well
as the sāʾir, which was a charge on trade and markets, see T.R. Travers, “‘The Real Value
of the Lands’: The Nawabs, the British and the Land Tax in Eighteenth-Century Bengal.”
Modern Asian Studies 38/2 (2004): 517. While for the Mughals the term māl did also imply
a distinction from other non-land related charges that fell under the term wujūhat, more
precisely speaking, the ‘land revenue’ of the colonial state aimed to incorporate the so-
called jamʿa. In Mughal times the latter comprised approximately one-third of a larger
figure, known as the maḥṣūl, which was meant, at least from Akbar’s reign (1556-1605), to
represent the average of produce calculated form equal units of good, middling, and bad
lands, Habib, The Agrarian System of Mughal India: 13. Of course, there is also the differ-
ence between the jamʿa as tabulated in theory and what was thought to be procurable in
practice. At the level of assessment terminology the Mughal system had various ways of
trying to deal with this fact—for example, as through the distinction between the jama-
i-kāmil that during Aurangzeb’s rule (1658-1707) was styled as an estimate of the theoreti-
cally pure level of assessed government demand versus the jamʿa bandī, or the actually
assessed demand. Finally, the amounts designated under these various categories must
all be distinguished from actual receipts, which were known relatively more informally
under the rubric of the term ḥāṣil as well as other more precise terms of art—for example,
as in some parts of the subcontinent, the jama-i-wasūl bāqī.
91 Although “rent property” is a phrase that the historian Eric Stokes also invoked at least
on one occasion, my own use of it here is meant differently. Moreover, because Stokes’
invocation came in the context of the colonial period, it also differs from that which is
more explicitly offered (in extended fashion) in section three of this article by way of

jesho 61 (2018) 920-975

Property and Its Rule 955

Ultimately, then, in a deontic culture like the Mughal there was a very thin
line between asserting sovereignty over ‘property’ and simply alienating it, an
observation that will sound counterintuitive to those accustomed to equating
capitalism with (commodity) exchange and ancien régimes with the opposite.
In fact, as much is further made evident by the difficulty that historians have
faced in answering the question of whether the Mughal version of the iqṭā‘ was
a means of procuring state revenue or granting it away. Some—like the scholar
of ancient India R.S. Sharma—liken the jāgīr to much older practices of de-
centralizing royal rights “to collect land revenue” to other imperial personnel
under the Guptas; however, other scholars—like the dean of Mughal history,
Irfan Habib—insist that its real parallel was with the madad-i ma‘āsh (lit. ‘aid
for subsistence’) grant,92 a variation on the Islamic inām93 in which the em-
peror is said to have alienated away territory entirely by absolving the grantee
of any revenue obligation whatsoever.
Indeed, much the same ambiguity is characteristic of various other Indo-
Islamicate land control forms as well. Much like grants made in madad-i
ma‘āsh, those made in waqf can be seen as forms of private ‘trust’ as readily
as they can forms of delegating sovereign power.94 The same is even more no-
tably the case for the various forms of ijāra, or so-called revenue/tax farming,
that displaced the jāgīr as the principal mechanism of public administration
during later Mughal times. In other words, whether their proliferation involved
the state decentralizing administration or alienating away its ‘property’ tends,
in effect, to be anyone’s guess.95

considering how rent figured into the East India Company’s so-called rule of property, see
E. Stokes, The English Utilitarians and India (Oxford: Clarendon Press, 1959): 87.
92 Habib, The Agrarian System of Mughal India: 342. Habib further insists that madad-i
ma‘āsh grants were “non-proprietary” (Ibid.: 349). Contrast Moreland, The Agrarian System
of Moslem India: 98-99 (arguing that the difference between “service Assignments … and
the various Grants and endowments … grouped under the term suyūrghāl” was, practi-
cally speaking, only one of the procedure by which they were awarded to their recipients.
Whereas the latter were authorized directly by the Emperor himself, the former were ex-
ecuted only after additional steps undertaken by the revenue ministry).
93 Rendered here in its Persian form, the term derives from the Arabic infinitive root in‘ām
and is usually translated as signifying a benefaction, gift, or favor.
94 Habib, for example, describes waqf as simply one more category of “grants” by the state
(noting that the “beneficiaries of these were not, directly, individuals but institutions”).
Habib The Agrarian System of Mughal India: 359.
95 Tellingly, as historians have shifted toward seeing the paths of these empires as ending in
decentralization rather than decline, the evaluative valence attached to revenue farming
has also shifted. Once commonly seen as an indicator of desperation and a fire sale of
state assets, today revenue farming is often more likely to be regarded as evidence of a
managed system of capitalist “portfolio” investment in the mechanisms of statecraft. See,

jesho 61 (2018) 920-975

956 Chaudhry

3 Understanding Company Raj: A Rule of Property (as Rent) for

British India

3.1 The Practical Disjunction of Land Rent and the Land Tax
(in Modern Britain)
As the high nineteenth century beckoned, the ideal of laissez faire—together
with the increasing scientization of political economy—did go further toward
conjoining property and taxation in the West as thesis and antithesis. In the
roughly hundred years between Smith’s The Wealth of Nations (published in
1776) and the advent of economics’ neoclassical revolution the discipline’s
growing influence did thus provide a more ample basis for envisioning land’s
rights as contingent on its duties. Yet even as the basis in theory for commin-
gling property and taxation reverberated beyond political economy’s extra-
legal discursive realm, reality was moving in an opposite direction. Already
by the early eighteenth century in Britain it was clear that the land tax was
becoming less not more important. Extending the earlier discussion, one can
point to three different ways in which this was the case.96
First, in England the land tax continued to be—as it always had been—ad-
ministered “locally, and not centrally or bureaucratically.”97 As a result, in the
period after 1714 it became ever more implausible to see the land tax “exclu-
sively through executive eyes, in purely fiscal terms” and hence, implicitly, as

Sanjay Subrahmanyam and C.A. Bayly, “Portfolio Capitalists and the Political Economy
of Early Modern India.” In Indian Economic and Social History Review 25/4 (1988): 401-24;
Alam and Subrahmanyam, The Mughal State, 1526-1750: 12.
96 While the question of how far the British case can be generalized is an important one, it
is worth remembering that overall taxation in England was higher than in France during
the eighteenth century. Such a fact clearly bears on why taxation and property should dis-
cursively have been increasingly comingled within Anglophone political economy during
the nineteenth century. In this respect, there is good reason why the British case can be
regarded as a sound one for demonstrating that landed property and the land tax none-
theless remained practically disjoined during this same period. See Braddick, The Nerves
of the State: 192.
97 C. Brooks, “Public Finance and Political Stability: The Administration of the Land Tax,
1688-1720.” In The Historical Journal 17/2 (1974): 283-84. John Brewer emphasizes much the
same point. See Brewer, The Sinews of Power: 119 (noting that “[t]he commons’ decided
preference for the land tax—its willingness to fund most of the war effort between 1692
and 1713 by a tax which fell primarily on landed wealth—is therefore explained in a single
word: control. The tax might fall heavily on the landed classes, but the commons knew
that when the time came they could easily (or so they thought) throw off the burden. The
tax created no class of insidious bureaucrat, no creatures of the crown ready to support
monarchical power and to subvert elections. Though the land tax was in this period the
strong arm of the fiscal state, its financial muscle was only exercised at the behest of the
commons”).

jesho 61 (2018) 920-975

Property and Its Rule 957

if its primary symbolic importance was as a forced invasion of the property of

the “political nation.” In this respect, the land tax contrasted sharply both with
the excise and customs duties, and “attempts to inject into [its] administration
any idea of efficiency and executive professionalism” of the kind that fueled
the growing prominence of those counterpart forms of indirect taxation were
roundly rejected.98
In fact, the generalized rise of indirect taxation made for the second key
way in which the land tax’s real significance was clearly diminishing. As the
historian Michael Braddick notes, by the second decade of the eighteenth
century “the arguments in favour of excises began to win out,” and the fears
that had previously prevented such charges from displacing direct taxation
on landed incomes were falling by the wayside. Indeed, already soon after the
end of the War of Spanish Succession in 1714 excise income started to exceed
receipts from the land tax, and the tendency only intensified during the years
of subsequent peace. For the great majority of the rest of the 1700s excise was
England’s “most lucrative source of revenue,”99 with direct taxation beating
a correspondingly rapid retreat. For example, while during the combined pe-
riod of William and Mary’s rule—from 1689 to 1702—taxes on land and other
immovables still furnished approximately 47 per cent of the crown’s income,
by the beginning of the wars against revolutionary France direct taxation ac-
counted for only 21 per cent of the state’s revenue.100 Moreover, it was hardly
just compared to indirect sources of state finance that the land tax declined.
Even more notable was its falloff relative to debt, which, as noted earlier, was
the most important mechanism for funding the British military-fiscal state’s
spectacular expansion during the intervening years.101
As for the third key way that reality frustrated the theoretically more in-
sistent co-mingling of property and taxation as the discourse of economics
became increasingly scientized, it had to do with the permanent stasis into
which the land tax entered even just considered on its own terms. Sticking
with 1714 as a benchmark year, by that date the land tax had become notorious
for being under-assessed.102 Not only had the nominal rate applying to land
itself grown obsolete, but the increasing array of productive assets that were

98 Brooks, “Public Finance and Political Stability”: 283, 284.

99 Braddick, The Nerves of State: 126.
100 P. O’Brien, “The Political Economy of British Taxation, 1660-1815.” The Economic History
Review 41/1 (1988): 10 and Table 4.
101 Brewer, The Sinews of Power. For a review of the current standing of Brewer’s deeply influ-
ential study, see J. Brewer, “Revisiting The Sinews of Power.” In The British Fiscal-Military
States, 1660-c.1783, ed. Aaron Graham and Patrick Walsh (New York: Routledge, 2016): ch. 8.
102 Brewer, The Sinews of Power: 105.

jesho 61 (2018) 920-975

958 Chaudhry

being positioned on land tended to escape assessment altogether. Overall,

then, the real values of estates were becoming ever more decoupled from the
prices they were assigned in the market as commodities in their own right.
Despite the criticism from Parliament and in the public sphere, however, going
into the nineteenth century under-assessment had become well established
as the status quo, apart from momentary rate increases made here and there
during times of war.
Ultimately, as Patrick O’Brien strikingly puts it, the whole of fiscal policy
during the eighteenth century can best be seen as one big “holding operation
against … a reform of the land tax” in order to preserve the dominance of the
gentry.103 Not surprisingly, then, complementing the multi-pronged stagnation
of the land tax, as part of this operation there also took place a sustained re-
arguard action against instituting an income tax; and while Pitt the Younger
did succeed in briefly introducing one before the eighteenth century’s end, the
subsequent attack (and eventual repeal) to which it was subject meant that
income taxation did not become any stable feature of the political landscape
until Robert Peel’s Prime Ministership in the 1840s. Of course, before Peel’s
new tax on income could be ramped up Britain’s landed elite was already in
significant retreat, even if hardly so rapidly or completely as it was once com-
mon to assume.104 Facing a maturing manufacturing bourgeoisie, their eclipse
was symbolically sealed when Peel’s proposed repeal of the Corn Laws was
passed, famously, in 1846.
All told, then, by mid-century the reasons for the land tax to be reimagined
as indistinguishable from the landlord class’ claim to an unearned increment
of (rent) property were becoming less rather than more compelling.105 In
Britain, in other words, from roughly 1700 to 1850 the distance between ‘prop-
erty’ as a conceptual model for right holding and ‘property’ as a conceptual

103 O’Brien “The Political Economy of British Taxation”: 19. As O’Brien notes, it was not simply
the landed interest that supported this status quo but also merchants and manufacturers.
Ibid.: 20.
104 C.A. Bayly, The Birth of the Modern World, 1780-1914: Global Connections and Comparisons
(Oxford: Blackwell Publishing, 2004): 172-74.
105 Because Ricardo was never quite able to bring himself to advocating for a tax on land
rents, in the West it would fall to Henry George, at the end of the nineteenth century,
to fully rediscover something akin go the Physiocrats’ idea of a single tax, see E. Kittrell,
“Ricardo and the Taxation of Economic Rents.” The American Journal of Economics and
Sociology 16/4 (1957): 379-90; Blaug, Economic Theory in Retrospect: 28-29. Regardless, by
the mid-nineteenth century rent was in many ways retreating even simply in its theoreti-
cal significance, as the practical importance of those who survived strictly on landown-
ing, themselves, did, see, e.g., Hunt and Lautzenheiser, A History of Economic Thought:
247-50, 273-78, 305-7, 312-14.

jesho 61 (2018) 920-975

Property and Its Rule 959

model for duty-boundedness was widening, not narrowing. Given its centrality
to the emergence of the larger imaginary of Western modernity, moreover, the
ideological resonance of this fact can hardly be underestimated in its impor-
tance. In the West, well beyond the United Kingdom the practical conditions of
the British countryside served to undercut the possibility, in theory, of fixating
on a need for parity between (landed) property as a right (to rent) and taxation
(of property’s rent) as an obligation.

3.2 The Practical Conjunction of Land Rent and Land Tax (in the
Company’s India)
While classical political economy’s unique way of idiomizing land in the name
of property was still struggling to achieve practical vivification in the birth-
places of the discipline as the nineteenth century wore on, it had already se-
cured a lasting lease on life in the wider world of empire. As in many cases, it
was Britain’s India—amidst its own transition to high imperialism while still
under the East India Company’s raj—that was the paradigmatic example. In
this context, however, the notion of property as an entitlement to rent did not
just resonate due to whatever plausibility there may have been in conceiving
the subcontinent’s traditional past in terms of a coincidence of tax and rent
under a rule of oriental despotism. Rather, the alternative conception of prop-
erty that was latent within the cutting edge discourse of political economy
allowed the Company to develop a practical administration capable of actual-
izing its more blatantly extractive aims while still speaking a nominal language
of liberal freedom.
Given the well-recognized importance of property and rent—as distinct
from property as rent—in the historiography of modern South Asia, care is
needed to distinguish the main assertion of this concluding subsection of the
article from existing views on the early colonial period. Conventionally, prop-
erty’s rule in the subcontinent is seen as starting in 1793, a little over three de-
cades into the East India Company’s rise to supremacy in the former Mughal
province of Bengal after defeating its breakaway governor in 1757. With the
Permanent Settlement of 1793, the Company fixed its land-revenue demand
on the province’s zamīndārs, or large magnates, in perpetuity. In the process,
it accented the final demise of the disgraced regime of Bengal’s first Governor-
General, Warren Hastings, shortly before the advent of the Governor-General
Charles Cornwallis’ new administration.
At least since the work of Ranajit Guha in the 1960s, the immediate pre-
history of the Permanent Settlement has been mainly linked to a set of pro-
posals going back mainly to the late 1770s. As Guha showed, it was a decade
after the Company secured authority over the treasury power in Bengal in

jesho 61 (2018) 920-975

960 Chaudhry

1765, once it was appointed as the province’s new dīwān by the titular Mughal
Emperor, that the idea of granting official recognition to the zamīndārs was
first articulated in a sustained way by Philip Francis in 1776. Coming in the
wake of the ruinous famine that ended the 1760s, Francis’ early plan for a per-
manent settlement was cast as a denunciatory break with the mismanagement
that plagued the Company’s initial transition from trader to sovereign. In the
course of barely twenty years, then, what began as a “secondary notion tagged
on” to an early “mercantilist thesis” —as Guha famously put it—would go on
to pass through “the highest point of contemporary economic thought” and,
through Cornwallis’ 1793 regulation, take final shape as a full-fledged policy of
stimulating “capitalist enterprise in agriculture” through freeing property into
the market.106
Of course, for Guha ideology did not simply sum to actuality. His focus on
Britain’s would-be ethos of private capitalist property was thus balanced by
a realism concerning how, in reality, the détente with the zamīndārs quickly
“degenerate[d] into an apologia” for the colonial state’s “quasi-feudal land sys-
tem” in Eastern India.107 Not surprisingly, then, whatever seeming consensus
there now exists around the narrative of the Company’s early rule of prop-
erty in Bengal, it is routinely qualified through calling attention to an osten-
sible divide between the colonial state’s theory and its practice. Ratnalekha
Ray, for example, went considerably further than Guha in characterizing the
Permanent Settlement as giving rise to a great “circulation of titles” more than
any great transformation—at least immediately—of social relations on the
ground. On this view, the colonial state’s commitment to property as an idea
was more nominal than real.108 Synthesizing the Bengali experience with a
broader account of British rule in India overall, David Washbrook provided an
even more striking qualification. Arguing that any ideal of property’s freedom
that the Company professed was “pure farce,” Washbrook sought to demon-
strate how in reality the ideal was largely an empty slogan. More specifically,
in his landmark article he contends that colonial law was the key mechanism

106 R. Guha, A Rule of Property for Bengal: An Essay on the Idea of Permanent Settlement
(Durham, NC: Duke University Press, 1996 [1963]): 200.
107 Ibid. More recently, historians have begun to reopen questions about ‘ideology’ in early
colonial Bengal that Guha sought to address primarily through focusing on the Permanent
Settlement. See, R. Travers, Ideology and Empire in Eighteenth-Century India: the British
in Bengal (New York: Cambridge University Press, 2007); Jon Wilson, The Domination
of Strangers: Modern Governance in Eastern India, 1780-1835 (Basingstoke: Palgrave
Macmillan, 2008); and (most expansively beyond Bengal) R. Govind, The Infinite Double
Persons: Things/Empire: Economy (Shimla: The Indian Institute of Advanced Study, 2015).
108 R. Ray, Change in Bengal Agrarian Society, c1760-1850 (Delhi: Manohar, 1980): 252.

jesho 61 (2018) 920-975

Property and Its Rule 961

for rendering the ideal farcical, with the Company’s legal regime actively hin-
dering land from being unfastened into the market by the content of its very
principles as well as overall design. Through this line of argument, Washbrook
pressed the divide between theory and practice further—effectively distin-
guishing the superficiality of the early colonial state’s general rhetoric from the
actuality of its more particularized legal rules/rulings.109
Of course, outside of Bengal it was neither primarily a zamīndārī nor a per-
manent settlement that prevailed but, instead, the Company’s so-called raiyat-
wari system. This meant that in the presidencies of Bombay and Madras it was
ostensibly upon the true cultivators of the soil that the Company settled its
land revenue demand, by partnering with those it anointed as raiyats (raʿīyah).
As a result, the scholarly qualification of property’s theoretical rule for these
parts of the colonial subcontinent has taken a somewhat different form. As
scholars of South India, above all, have emphasized, in the vast peninsular area
covered by the Madras Presidency the colonial state had to contend with a
long-standing tradition of individualized claims to shares in landed wealth.
Outside of Bengal, therefore, the Company purported to be dealing primarily
with small holders rather than magnates on the scale of zamīndārs. Especially
in South India, moreover, it did so in a context in which fixing individuals to
discrete bits of terrestrial space was that much more antithetical than it was
in Bengal to whatever tradition of private ‘proprietary’ rights that had existed
during late pre-colonial times.110
Turning from the role of the concept of property to that of the concept of
rent in the making of the colonial state, we find a more unqualified scholarly
consensus. On this point, a view Eric Stokes spelled out already before Guha’s
work on the Permanent Settlement has been largely canonized. Stokes empha-
sized how Ricardo’s concept of rent as a “differential advantage enjoyed by all
soils of a higher quality than the last taken into cultivation” laid the basis for a
“law of rent” to become a guiding policy directive. It has thus become typical
to see the so-called Ricardian law of rent as having become central to revenue
systems in the largely non-permanent and raiyatwari settled areas of Bombay
and Madras starting in the late 1820s, as administration began to mature once
the constant expansionary warfare in which the Company had been engaged
for much of the previous half-century slowed.111

109 Washbrook, “Law, State and Agrarian Society”: 661, 665.

110 The literature to this effect is wide. See, e.g., B. Stein, “The Economic Function of a
Medieval South Indian Temple.” The Journal of Asian Studies 19/2 (1960): 163-76; Dharma
Kumar, “Private Property in Asia?”; and Ludden, An Agrarian History of South Asia: 97-112.
111 Stokes, The English Utilitarians and India: 88.

jesho 61 (2018) 920-975

962 Chaudhry

While the law of rent was rooted in Ricardo’s economic writings, it was his
close associate, James Mill, who made it an intelligible directive for colonial
administrators. Then an official in the India Office, Mill was the key progeni-
tor of what Stokes famously called a decidedly “Utilitarian” turn in colonial
administration that was taking place during the 1830s. As its centerpiece, the
prospect of taxing away the whole of land’s purportedly unearned increment
was distinguished from the proverbially despotic order of India’s Asiatic poli-
ties of yesteryear. In particular, it was the Company state’s much ballyhooed,
and never actually realized, capacity to take only the “scientifically”-deter-
mined quantum of value that rent was said to comprise that was supposed to
set its self-proclaimed commitment to “improvement” apart from the oriental
rapaciousness of old.
Despite the seemingly unqualified importance of the law of rent to our
understanding of the Company’s India, however, the above narrative can be
squared with that of property’s rule only with certain difficulties. On the one
hand, insofar as officialdom was gripped by a policy of redirecting the entire
agricultural surplus back to the sovereign starting around 1830, compared to a
narrative of property’s rule that starts—both inside and outside of Bengal—
around 1790, the rise of the law of rent looks like a thoroughgoing about-face
from the previous four decades. This is because notwithstanding the differ-
ences between the permanent zamīndārī and raiyatwari systems, land revenue
settlement throughout the Company’s territories was still built on the same
foundational priority. Everywhere throughout the colonial subcontinent, those
in whom the architects of early Company rule vested the vaunted right to prop-
erty effectively bargained to accept the state’s power to demand from them the
fulfillment of land’s key obligation—namely, of tax payment. In the face of
this feature, it matters little if already within its first decade the Cornwallis
system had brought on enough dissatisfaction to pave the way for Thomas
Munro’s first experiments with raiyatwari settlement in Madras. Every bit as
much as his counterparts in Bengal, Munro too purported to deliver a modern
rule of private property where there had been none before.112 Likewise, there-
fore, given its fundamental aspiration toward sovereign monopoly, the law of

112 See, e.g., Ibid.: 86-87; Dirks, “From Little King to Landlord”: 320; D. Ludden, “The Terms
of Raiyatwari Praxis: Changing Property Relations among Mirasidars in the Tinnevelly
District, 1801 to 1885.” In Studies of South India: An Anthology of Recent Research and
Scholarship, ed. R.E. Frykenberg and P. Kolenda (Delhi: New Era Publications, 1985): 157-
63; and P. Robb, “Landed Property, Agrarian Categories, and the Agricultural Frontier:
Some Reflections on Colonial India.” In Colonialism and the Modern World: Selected
Studies, ed. G. Blue, M. Bunton, and R. Croizier (New York: M.E. Sharpe: 2002): 71-99.

jesho 61 (2018) 920-975

Property and Its Rule 963

rent would seem to have negated the foundational purpose of Munro’s system
every bit as much as it did that of Cornwallis’.113
On the other hand, it is equally possible to see—as various historians
have—the rise of the law of rent as doing little to disrupt the fundamental
continuity of the Company’s rule going back to the 1790s. This is because even
under its newly emergent auspices after 1830 revenue policy in Bombay and
Madras remained organized around treating the ostensible cultivator of the
soil as the key node of official tax liability just as it previously had (and just as
the zamīndār in Bengal previously had been) going back to the 1790s. Whatever
endorsement the rise of the law of rent effectively gave to the ideal of sovereign
monopoly, outside of Bengal the question of who would be charged with land’s
key obligation remained as it was.114
A basic equivocality thus characterizes the treatment of property and rent
as concepts that were constitutive of the first century of British colonialism
in the subcontinent. With respect to the former, the Company appears both
as if it was professing a deep commitment to property’s rule as well as a com-
plete lack of the same—whether because it implemented only a “circulation
of titles” (as in Bengal) or because it ignored pre-colonial traditions of “pro-
prietary” right holding (as in Madras). With respect to the latter, on the other
hand, the Company’s express reliance on rent theory after 1830 appears both
like a fundamental break with its past (substituting sovereign monopoly for
private property outside of Bengal) and nothing of the sort (doing little to dis-
turb the basic differentiating factor separating revenue settlement in Bengal
from elsewhere).
In both cases, however, the equivocality results only if we fail to distinguish
the question that was most vocally debated amidst the Company’s initial tran-
sition from trader to sovereign—namely, of who the subcontinent’s so-called
true proprietors were—from that of what property was assumed to consist of
for the purpose of debate. Indeed, the vigorous disagreement that surrounded
the first of these questions has long since masked the consensus that assembled
around the second. At least from the 1770s, all sides in the project of colonial
state building silently converged on the alternative way of idiomizing land in
the name of property that lurked in the background of Western economic—as
distinct from legal—thought. In the subcontinent, therefore, classical political

113 See e.g., S. Ambirajan, Classical Political Economy and British Policy in India (New York:
Cambridge University Press, 1978).
114 See, e.g., N. Mukherjee, The Raiyatwari System in Madras, 1792-1827 (Calcutta: Firma
K.L. Mukhopadhyay, 1962); E. Irschick, Dialogue and History: Constructing South India,
1795-1895 (Los Angeles: University of California Press, 1994): 115-52.

jesho 61 (2018) 920-975

964 Chaudhry

economy’s ideas about rent did not have to wait for Mill’s operationalization of
Ricardo after 1825 to become more than nominal; nor was political economy’s
alternative conception of property made manifest principally through raising
privateness to a cardinal virtue after 1790.
To the contrary, whether in 1770, 1790, or 1830, the key criterion of property’s
rule under the Company was consistently asserted through the notion that
what property was (and only could be) in the subcontinent was land’s rent. If
this has been hard to see, it is because the theory of property that colonial rule
actualized was not one that had pride of place in the metropolitan world as
part of the progress narrative of Western modernity. Inhering in the interstices
of the discourse of political economy, that theory instead implied that mo-
dernity was as much the product of expropriating unearned gains as it was of
rewarding meritocratic effort or the abstemious wherewithal to delay instant
gratification. Against this backdrop, it is little wonder that above the silence
of consensus, colonial officialdom more vocally cast property’s identifica-
tion with rent as particular to the subcontinent’s unique circumstances. Chief
among these was the supposedly primordial agrarian character of “Hindu soci-
ety” and the wholly external imposition thereon of an “Islamic” form of polity
that was said to necessitate totalizing sovereign dominion.
Even so, the incipient discourse of political economy’s alternative concep-
tion of property was evident already before Francis’ 1776 plan for a permanent
zamīndārī settlement of Bengal. As suggested earlier, Francis opposed those
who saw the Mughal sovereign as the subcontinent’s true proprietor. At the
same time, he also decried Hastings’ effort to make good on the Company’s
dīwāni power through more widespread resort to revenue farming starting
in 1772115—after less systematic experiments with the practice in select parts
of Bengal earlier.116 Yet Francis’ polemic has too easily obscured the fact that
the Hastings government’s more hands-on approach to financial administra-
tion was in many ways a direct preface to his own plan. Notwithstanding the
widespread perception of failure that engulfed Hastings’ 1772 revenue farming
scheme, Francis’ own ideas should not be mistaken for being more novel than
they actually were.117 Rather, his notion of permanent settlement was staked

115 W. Bolts, Considerations on Indian Affairs; Particularly Respecting the Present State of
Bengal and its Dependencies, 2nd Ed. (London: J. Almon, 1772): 34.
116 For example, Hastings’ predecessor as Governor from 1767 to 1769, Harry Verelst, oversaw
the farming of the revenues of the Burdwan raj for three-year terms, see Travers, Ideology
and Empire: 96.
117 Francis’ opposition intensified widely circulating earlier critiques by the likes of William
Bolts and Alexander Dow. Bolts’ Considerations on Indian Affairs (1772), published after
he was expelled from India in 1768, became one of most prominent early condemnations

jesho 61 (2018) 920-975

Property and Its Rule 965

on much the same view as Hastings articulated to justify expanding the scope
of revenue farming. Both were marked by a similar and, for the time, state of
the art commitment to instantiating political economy’s latent notion of prop-
erty as a means of controlling economic rent that would go on to take center
stage again in the 1830s and afterwards.
In seeking to distinguish his approach to revenue farming from earlier ver-
sions, especially as practiced by Indian potentates, for example, Hastings fixed
on enabling bidders to secure longer leases. Using a minimum lease period of
five years, he explained, would be “the most eligible” option for “a Government
constituted like that of the Company,” lacking as it did the wherewithal to
“enter into the detail and minutiae of the Collections.” In supporting such an
approach to revenue policy Hastings fully understood that tax farming would
put “both the interest of the State and the property of the people … at the
mercy of” the farmers.118 However, he also refused to draw any hard and fast
distinction between the “property of the people” that was to be entrusted to
what he called the “mercy” of successful bidders and the interest those bid-
ders, themselves, would consequently end up holding. That is, by the lights
of Hastings’ scheme the tax farmer’s claim on revenue under a system of ex-
tended leases would—as much as any other arrangement—secure the essen-
tial expectations underlying “property” in the subcontinent.119 Under a system
of “long leases” it was not just the raiyats—conceived by Hastings as a cross
between improving landlords and industrious tenant farmers—who would be
freed “from being transferred every year to new landlords,” thus “injur[ing] the
cultivation and dispeopl[ing] the lands.” Rather, the winning bidder too would
“acquire[] a permanent interest in his lands”—namely, over the all-important
stream of value they were the source of.
As a holder of the “property of the people” in his own right, the revenue
farmer in Hastings’ view was thus construed in precisely the same way as the
propertied zamīndār was in Francis’ (and eventually Cornwallis’ as well). Like
the zamīndār, the revenue farmer too would “for his own sake lay out money
in assisting his tenants, in improving lands already cultivated, and in clearing

of the Company’s transition from trader to sovereign. Dow made his own case against the
Company in the two volumes of his A History of Hindustan (published in 1768 and 1772,
respectively).
118 Warren Hastings, “Letter to Calcutta Committee of Revenue Consultations, May 14, 1772,”
reprinted in Monckton Jones, Warren Hastings in Bengal (Oxford 1918): 266.
119 For much the same reason, contemporary scholars often continue to distinguish market-
promoting forms of tax farming in the West from their counterparts in the Islamicate
world. See, e.g., T. Kuran, The Long Divergence: How Islamic Law Held Back the Middle East
(Princeton, NJ: Princeton University Press, 2011): 136.

jesho 61 (2018) 920-975

966 Chaudhry

and cultivating waste lands.” Most importantly, he would never “dare … injure
the rents, nor encroach in one year on the profits of the next, because the fu-
ture loss which [would otherwise] ensue from such a proceeding w[ould] be
his own.”120
The rationale underlying Hastings’ scheme to expand revenue farming
leaves little doubt that he was, ironically, the forebear of his own most strident
and unrelenting critics. Like them, he too assumed that what property was in
Bengal was first and foremost its holder’s ability to assert a dominion over the
(largely unearned) value of the land’s produce in the abstract. Also like those
who came after him, he too assumed that what was most needed in order to
guarantee a right to such property was a security of expectation. Only then
would it be clear how much of the inherently divisible and fungible substance
of such property fell under the obligation owed to the colonial state that was
the other side of the proprietor’s newly juridified right.
Whatever dissimilarities there may have been between them, it is not sur-
prising that all sides—whether those who supported long term tax farming,
zamīndārī settlement, or even a recognition of the “sovereign” as Bengal’s “true
proprietor”—all shared in the view from property as rent. This is because al-
ready from the very outset of Company rule, a key imperative was evident to
colonial officialdom writ large: to re-centralize power through transforming
some stratum of Indian subjects into more “legible” nodes of financial obliga-
tion, to again borrow James Scott’s phrase.121 What Hastings called the most “el-
igible” path to this end was also the surest. By refracting the image of Western
liberal subjectivity through the lens of a right to “property,” the duty of land
taxation could be conjoined to that right both logically and practically. While
in one sense, doing so picked up on the way that Indo-Islamicate discourses
tended to idiomize land’s produce more than land itself, it was also to negate
pre-colonial political culture’s ability to decouple land’s rights from its duties.122
Indeed, the view of property as rent was not just shared by ostensible antag-
onists in the revenue settlement debate in early colonial Bengal. It also united

120 Hastings, “Letter to Calcutta Committee of Revenue Consultations”: 267-68.

121 See supra at note 87.
122 Washbrook seems to evoke a similar point—albeit while suggesting more of a continuity
with the pre-colonial past than I am here by pointing to the disjunction between ‘rights’
and ‘taxation obligations’ in early modern deontic culture in the subcontinent—when he
emphasizes the way that the colonial state kept “rights to private property in land … in-
distinct from the state’s revenue rights and therefore equivocal.” David Washbrook, “India,
1818-1860: The Two Faces of Colonialism.” In The Oxford History of the British Empire.
Volume III: The Nineteenth Century, ed. Andrew Porter (New York: Oxford University
Press, 1999): 407, see, also Washbrook, “Law, State and Agrarian Society in Colonial India.”

jesho 61 (2018) 920-975

Property and Its Rule 967

the founding system of zamīndārī right the Company created in Eastern India
with the seeming departure it made toward a raiyatwari system elsewhere. As
much was made clear by the underlying rationale for Munro’s earliest experi-
ments with the latter form of settlement in Madras.
As Munro explained, the landlord and cultivator in India were always even-
tually “[t]he same person, with very few exceptions,” which he argued stood in
sharp contrast to England where the two remained “permanently separated.”
This, as he continued, was because in the subcontinent “[t]he landlord must
always cultivate his own fields; and hence the collections must always be made
directly from the cultivator in his quality of landlord.” In such a context, in
their own right, intermediaries like the zamīndārs would inevitably become
“either petty princes or cultivators.”123
While it is likely to all too easily be taken for granted today by those versed in
sociological thinking, Munro’s reasoning was surprising for its time. This is be-
cause it turned on the notion that through recognizing the raiyat as the holder
of the distinct quantum of rent’s value that might otherwise be assigned to the
zamīndār, the former’s interest would be converted from one of small farmer-
ship to true proprietorship. The whole logical edifice thus hung together on
the basis of assuming that in its essence what property comprised—as dis-
tinct from who its holder should be—was an entitlement to rent. As Munro
explained:

[t]he only matters of real importance, in a comparison of the ryotwar and

zemindarry systems, are the amount of the remission to be granted, and
the mode of its distribution. If the sum is in both cases equal, the direct
loss to revenue, is also the same; but in the one case, the whole remission
goes immediately to the ryots, by whom all land rent is produced, while
in the other, it may never reach them. The zemindars will keep it from
them forever, and the mootahdars for a long period of years. In the one
case, the whole of it, will be immediately applied to the improvement
of the country. In the other, either none, or only a small portion will be
allotted to that purpose. It seems extraordinary, that it should ever have
been conceived, that a country could be as much benefited by giving up
a share of the public rent to a small class of zemindars or mootahdars,

123 “Extract from Report of Principal Collector of the Ceded Districts Proposing a Plan for
permanently settling those Districts on the Ryotwar principle,” 15 August 1807, reprinted
in House of Commons, The Fifth Report from the Select Committee on the Affairs of the East
India Company, 1812, vol. 2, Madras Presidency (Madras: J. Higginbotham, 1866): 649-50.

jesho 61 (2018) 920-975

968 Chaudhry

who do not yet actually exist, as by giving it to the ryots, from whom all
rent is derived.124

Whatever modification the partisans of the Ricardian law of rent made to this
line of thinking more than two decades later, it was minimal as far as the per-
ception of the “true nature” of property in the subcontinent went. In the main,
the only real change was to invert the nominal balance between holding rights
versus duties with respect to that which already had been conceptualized as an
inherently fungible substrate during the earlier era of Company rule. Instead of
a moderate subtraction from the residuum of rent that constituted the admin-
istratively designated right holder’s true property, the state’s demand was now
to be counted as the predominant item in the balance sheet.
It was in freeing the colonial state, at least in principle, from any check on its
claim over the unearned increment of rent that Utilitarianism left the ambigu-
ous legacy it did in the subcontinent. However, the debate that has remained
ongoing into the present about whether that legacy was one of sovereign rath-
er than private right does little to disturb a conception of property that was
equally shared by one and all historically—whether those in sympathy with
Francis, Hastings, Cornwallis, Munro, or Ricardo and Mill. By the 1830s the law
of rent thus may have “provided … both a coherent policy for the demarcation
of public and private rights in the land, and a clear criterion of assessment.”125
If so, however, one must not lose sight of the fact that it did so only in keeping
with the colonial state’s already well-established pattern of giving land idiom-
atic shape as an entitlement to property that was defined as much by the obli-
gation to remit rent as by the right to hold on to the same.

Conclusion

To say that property’s rule in British India was “pure farce” or that it simply
amounted to a “more efficient” version of the Mughal regime of surplus appro-
priation is certainly accurate as far as it goes.126 However, it is also incomplete.
This is because it does not adequately consider why making good on land’s
alternative idiomization in the name of property was unlikely to take place
within the metropolitan world to which the discourses of the rule of law and
classical political economy were indigenous.

124 Ibid.: 649.

125 Stokes, The English Utilitarians and India: 92.
126 Washbrook, “Law, State and Agrarian Society in Colonial India”: 661.

jesho 61 (2018) 920-975

Property and Its Rule 969

Because it naturally elicited a line drawing exercise in which the propri-

etor’s right simply became the mirror image of his or her duty, the concep-
tion of property as rent was only too well suited to the central imperative of
colonial state building. For much the same reason, from its very inception, the
Company’s raj in the subcontinent contrasted sharply with ruling regimes in
early modern South Asia (to say nothing of early modern England). With their
Indo-Islamicate modes of idiomizing land, those regimes had much less dif-
ficulty with disjoining rights to land’s produce from any duties owed to the
sovereign that would have otherwise had to be the same in kind.
None of this, of course, is to say that in late pre-colonial times such rights
were never conjoined to a duty to remunerate part of land’s produce back to
the sovereign. However, it is to say that relative to the imaginary holding state
and society together in Indo-Islamicate deontic cultures, such a conjunction
was not the product of any strict quid pro quo. That is, any such conjunction
was not contingent on an imaginary envisioning ‘property’ (in the form of
rental value) being exchanged for ‘taxation’ (in the form of rental value). Nor,
therefore, was political subjectivity, itself, contingent on such a bargain.
The comingling of land’s quality as a source of right with its quality as a
source of duty was instead the distinguishing feature of property’s rule under
the Company. As such, it was a feature that also distinguished the aborted
form of “modern” political culture forged under early colonial rule from the
supposed genuine article that was being celebrated in the metropolitan West.
There too, of course, reality may still have deviated from the celebratory por-
trait, but at the discursive level, at least, politico-legal theory could remain
steadfast in championing land’s preferred idiomization in the name of prop-
erty. As an ostensibly pure right to exclude one and all from the holder’s irre-
ducibly material space of terrestrial dominion, property’s other more troubling
implications could thus—in both theory and practice—also be left to others
to deal with.

Bibliography

Ackerman, Bruce. 1977. Private Property and the Constitution. New Haven: Yale
University Press.
Adle, Chahryar and Irfan Habib, ed. 2003. History Of Civilizations Of Central Asia:
Development In Contrast: from the Sixteenth to the Mid-Nineteenth Century. Paris:
unesco Publishing.
Alam, Muzaffar and Sanjay Subrahmanyam, ed. 1999. The Mughal State, 1526-1750. New
Delhi: Oxford University Press.

jesho 61 (2018) 920-975

970 Chaudhry

Alexander, Gregory. 1997. Commodity & Propriety: Competing Visions of Property in

American Legal Thought 1776-1970. Chicago: University of Chicago Press.
Alexander, Gregory and Eduardo Peñalver. 2012. An Introduction to Property Theory.
New York: Cambridge University Press.
Al-Dawoody, Ahmad. 2011. The Islamic Law of War: Justifications and Regulations. New
York: Palgrave Macmillan.
Ambirajan, S. 1978. Classical Political Economy and British Policy in India. New York:
Cambridge University Press.
Anscombe, G.E.M. 1957. Intention. Oxford: Blackwell.
Bashear, Suliman. 1993. On the Origins and Development of the Meaning of zakāt in
Early Islam. Arabica 40/1: 84-113.
Bayly, C.A. 2004. The Birth of the Modern World, 1780-1914: Global Connections and
Comparisons. Oxford: Blackwell Publishing.
Berlin, Isaiah. 1969. Two Concepts of Liberty. In Four Essays on Liberty. Oxford: Oxford
University Press: 118-72.
Blaug, Marc. 1996 (1962). Economic Theory in Retrospect. New York: Cambridge
University Press.
Bolts, William. 1772. Considerations on Indian Affairs; Particularly Respecting the Present
State of Bengal and its Dependencies, 2nd Ed. London: J. Almon.
Bose, Sugata and Ayesha Jalal. 2004. Modern South Asia: History, Culture, Political
Economy. New York: Routledge.
Braddick, Michael J. 1996. The Nerves of the State: Taxation and the Financing of the
English State, 1558-1714. New York: Manchester University Press.
Braddick, Michael J. 2004. State Formation in Early Modern England, c. 1550-1700. New
York: Cambridge University Press.
Brewer, John. 1989. The Sinews of Power: War, Money and the English State, 1688-1783.
Boston: Unwin Hyman.
Brewer, John. 2016. Revisiting The Sinews of Power. In The British Fiscal-Military States,
1660-c.1783, ed. Aaron Graham and Patrick Walsh. New York: Routledge: 27-34.
Brooks, Colin. 1974. Public Finance and Political Stability: The Administration of the
Land Tax, 1688-1720. The Historical Journal 17/2: 283-84.
Cahen, Claude. Iḳṭāʿ. In Encyclopaedia of Islam: consulted online 14 May 2016 http://
proxy.library.upenn.edu:2347/entries/encyclopaedia-of-islam-2/ikta-SIM_3522.
Chomsky, Noam. 2000. New Horizons in the Study of Language and Mind. New York:
Cambridge University Press.
Cuno, Kenneth. 1995. Was the Land of Ottoman Syria Miri or Milk? An Examination of
Juridical Differences within the Hanafi School. Studia Islamica 81: 123-31.
Dirks, Nicholas. 1986. From Little King to Landlord: Property, Law, and the Gift under
the Madras Permanent Settlement. Comparative Studies in Society and History 28/2:
307-33.

jesho 61 (2018) 920-975

Property and Its Rule 971

Dirks, Nicholas. 1993. The Hollow Crown: Ethnohistory of an Indian Kingdom. Ann
Arbor: University of Michigan Press.
DiRobilant, Ana. 2013. Property: A Bundle of Sticks or a Tree? Vanderbilt Law Review
66/3: 877-89.
El Fadl, Khaled. Abou. 2005. The Great Theft: Wrestling Islam from the Extremists. San
Francisco: Harper Collins.
El Shamsy, Ahmed. 2013. The Canonization of Islamic Law: A Social and Intellectual
History. New York: Cambridge University Press.
Ferguson, Niall. 2009. The Ascent of Money: A Financial History of the World. New York:
Penguin.
Ghazzal, Zouhair. 2007. The Grammars of Adjudication: the Economics of Judicial
Decision Making in fin-de-siècle Ottoman Beirut and Damascus. Presses de l’Ifpo.
Ghosh, Eric. 2008. From Republican to Liberal Liberty. History of Political Thought 29:
132-67.
Gordon, Robert W. 1995. Paradoxical Property. In Early Modern Conceptions of Property,
ed. John Brewer and Susan Staves. New York: Routledge.
Gordon, Stewart. 1994. Marathas, Marauders, and State Formation in Eighteenth-
Century India. Delhi: Oxford University Press.
Gordon, Stewart. 2003. Robes of Honour: Khil‘at in Pre-colonial and Colonial India. New
York: Oxford University Press.
Govind, Rahul. 2015. The Infinite Double Persons: Things/Empire: Economy. Shimla: The
Indian Institute of Advanced Study.
Guha, Ranajit. 1996 (1963). A Rule of Property for Bengal: An Essay on the Idea of
Permanent Settlement. Durham, NC: Duke University Press.
Habib, Irfan. 1999 (1963). The Agrarian System of Mughal India, 1556-1707. New York:
Oxford University Press.
Hallaq, Wael. 1999. A History of Islamic Legal Theories: An Introduction to Sunnī Uṣūl
al-Fiqh. New York: Cambridge University Press.
Hallaq, Wael. 2009a. Sharīʿa: Theory, Practice, Transformations. New York: Cambridge
University Press.
Hallaq, Wael. 2009b. An Introduction to Islamic Law. New York: Cambridge University
Press.
Haque, Ziaul. 1977. Landlord and Peasant in Early Islam: A Study of the Legal Doctrine of
Muzāraʿa or Sharecropping. Islamabad: Islamic Research Institute.
Hasan, Farhat. 2004. State and Locality in Mughal India: Power Relations in Western
India, c. 1572-1730. New York: Cambridge University Press.
Heim, Maria. 2004. Theories of the Gift in South Asia: Hindu, Buddhist and Jain Reflections
on Dāna. New York: Routledge.
Heitzman, James. 1997. Gifts of Power: Lordship in an Early Indian State. New York:
Oxford University Press.

jesho 61 (2018) 920-975

972 Chaudhry

Hodgson, Marhsall. 2009 (1958). The Venture of Islam: Conscience and History in a World
Civilization, Volume 1: The Classical Age of Islam. Chicago: University of Chicago
Press.
Hohfeld, Wesley Newcomb. 1913. Some Fundamental Legal Conceptions as Applied in
Judicial Reasoning. Yale Law Journal 23/1: 16-59.
Holmes, Clive. 1987. Parliament, Liberty, Taxation and Property. In Parliament and
Liberty from the Reign of Elizabeth to the English Civil War, ed. Jack H. Hexter.
Stanford, CA: Stanford University Press: 122-54.
House of Commons. 1866. The Fifth Report from the Select Committee on the Affairs of
the East India Company, 1812, vol. 2, Madras Presidency. Madras: J. Higginbotham.
Howard, Douglas. 1987. The Ottoman Timar System and its Transformation, 1563-1656.
Unpublished PhD dissertation, Indiana University.
Howell, Martha. 2014 (2002). The Language of Property in Early Modern Europe. In
The Culture of Capital: Property, Cities, and Knowledge in Early Modern England, ed.
Henry Turner. New York: Routledge: 17-24.
Hudson, Michael. 2015. Killing the Host: How Financial Parasites and Debt Bondage
Destroy the Global Economy. New York: Counterpunch Books.
Hunt, E.K. and Mark Lautzenheiser. 2011. A History of Economic Thought: A Critical
Perspective. New York: M.E. Sharpe.
Inalcik, Halil and Donald Quataert, ed. 1994. An Economic and Social History of the
Ottoman Empire, 1300-1914. New York: Cambridge University Press.
Irschick, Eugene. 1994. Dialogue and History: Constructing South India, 1795-1895. Los
Angeles: University of California Press.
Islam, Muhammad Wohidul. 1999. Al-Mal: The Concept of Property in Islamic Legal
Thought. Arab Law Quarterly 14/4: 361-68.
İslamoğlu-İnan, Huri. 1994. State and Peasant in the Ottoman Empire: Agrarian Power
Relations and Regional Economic Development in Ottoman Anatolia During the
Sixteenth Century. New York: Brill.
Johansen, Baber. 1988. The Islamic Law of Land Tax and Rent: The Peasant’s Loss of
Property Rights as Interpreted in the Hanafite Legal Literature of the Mamluk and
Late Ottoman Periods. New York: Croom Helm.
Jones, Monckton. 1918. Warren Hastings in Bengal. Oxford: Oxford University Press.
Joseph, Sabrina. 2012. Islamic Law on Peasant Usufruct in Ottoman Syria: 17th to Early
19th Century. Boston: Brill.
Kamali, Mohammad Hashim. 1991. Principles of Islamic Jurisprudence. New York:
Cambridge University Press, 1991.
Khadduri, Majid. 1966. The Islamic Law of Nations: Shaybānī’s Siyar. Baltimore: Johns
Hopkins University Press.
Khazna Katbi, Ghaida. 2010. Islamic Land Tax-Al-Kharaj: From the Islamic Conquests to
the Abbasid Period. New York: I.B. Tauris, 2010.

jesho 61 (2018) 920-975

Property and Its Rule 973

Kittrell, Edward. 1957. Ricardo and the Taxation of Economic Rents. The American
Journal of Economics and Sociology 16/4: 379-90.
Kozlowski, Gregory. 1987. Muslim Women and the Control of Property in North India.
Indian Economic and Social History Review 24: 163-81.
Kumar, Kumar. 1985. Private Property in Asia? The Case of Medieval South India.
Comparative Studies in Society and History 27/2: 340-66.
Kuran, Timur. 2011. The Long Divergence: How Islamic Law Held Back the Middle East.
Princeton, NJ: Princeton University Press.
Lambton, Ann. 1991 (1969). Landlord and Peasant in Persia: A Study of Land Tenure and
Land Revenue Administration. New York: I.B. Tauris.
Lapidus, Ira. 2014. A History of Islamic Societies. New York: Cambridge University Press.
Ludden, David. 1985. The Terms of Ryotwari Praxis: Changing Property Relations
among Mirasidars in the Tinnevelly District, 1801 to 1885. In Studies of South India:
An Anthology of Recent Research and Scholarship, ed. Robert E. Frykenberg and
Pauline Kolenda. Delhi: New Era Publications: 157-63.
Ludden, David. 2008. An Agrarian History of South Asia. New York: Cambridge
University Press.
Malthus, Thomas. 1815. An Inquiry into the Nature and Progress of Rent, and the
Principles by which it is Regulated. London: Murray.
Marx, Karl. 1993 (1867). Capital: A Critique of Political Economy, Vol. 3. New York: Penguin.
McNally, David. 1988. Political Economy and the Rise of Capitalism: A Reinterpretation.
Los Angeles: University of California Press.
Mill, J.s. 2004 (1848). Principles of Political Economy. New York: Prometheus Books.
Moreland, W.H. 1968 (1929). The Agrarian System of Moslem India: A Historical Essay
with Appendices. Delhi: Oriental Book Reprint.
Mukherjee, Nilmani. 1962. The Raiyatwari System in Madras, 1792-1827. Calcutta: Firma
K.L. Mukhopadhyay.
Neale, Walter. 1970. Land is to Rule. In Land Control and Social Structure in Indian
History, ed. Robert Eric Frykenberg. Madison: The University of Wisconsin Press.
O’Brien, Patrick. 1988. The Political Economy of British Taxation, 1660-1815. In The
Economic History Review 41/1: 1-32.
Pagden, Anthony, ed. 1990. The Languages of Political Theory in Early-Modern Europe.
New York: Cambridge University Press.
Petty, William. 1963 (1898). A Treatise of Taxes and Contributions. In Economic Writings
of Sir William Petty, ed. Charles Henry Hull. New York: Augustus M. Kelley.
Pocock, J.G.A. 1957. The Ancient Constitution and the Feudal Law: a Study of English
Historical Thought in the Seventeenth Century. New York: Cambridge University
Press.
Poliak. A.N. 1940. Classification of Lands in the Islamic Law and Its Technical Terms.
The American Journal of Semitic Languages and Literatures. 57/1: 50-62.

jesho 61 (2018) 920-975

974 Chaudhry

Ray, Ratnalekha. 1980. Change in Bengal Agrarian Society, 1760-1850. New Delhi:
Manohar.
Ricardo, David. 1951 (1817). On the Principles of Political Economy and Taxation, in
Piero Sraffa, ed., The Works and Correspondences of David Ricardo, Vol. 1. New York:
Cambridge University Press.
Richards, John. 1995. The Mughal Empire. New York: Cambridge University Press.
Robb, Peter. 2002. Landed Property, Agrarian Categories, and the Agricultural Frontier:
Some Reflections on Colonial India. In Colonialism and the Modern World: Selected
Studies, ed. Gregory Blue, Martin Bunton, and Ralph Croizier. New York: M.E.
Sharpe: 71-99.
Rose, Carol. 1994. Property and Persuasion: Essays on the History, Theory, and Rhetoric of
Ownership. Boulder, CO: Westview Press, 1994.
Rudolph, Susanne. 1987. State Formation in Asia – Prolegomenon to a Comparative
Study. The Journal of Asian Studies 46: 731-46.
Sachedina, Abdulaziz. 1980. Al-Khums: The Fifth in the Imāmī Shīʿī Legal System.
Journal of Near Eastern Studies 39/4: 275-89.
Sait, Siraj and Hilary Lim. 2006. Land, Law & Islam: Property & Human Rights in the
Muslim World. New York: Zed Books.
Sato, Tsugitaka. “ʿUshr.” In Encyclopaedia of Islam, Second Edition, ed. P. Bearman, et
al. Consulted online on 22 July 2016 http://proxy.library.upenn.edu:2146/10.1163/
1573-3912_islam_COM_1309.
Sato, Tsugitaka. 1997. State and Rural Society in Medieval Islam: Sultans, Muqtaʻs and
Fallahun. New York: Brill.
Scott, James. 1998. Seeing Like a State: How Certain Schemes to Improve the Human
Condition Have Failed. New Haven: Yale University Press.
Searle, John. 1983. Intentionality: An Essay in the Philosophy of Mind. New York:
Cambridge University Press.
Searle, John. 1995. The Construction of Social Reality. New York: The Free Press.
Searle, John. 2010. Making the Social World: The Structure of Human Civilization. New
York: Oxford University Press.
Sen, Sudipta. 1998. Empire of Free Trade: The East India Company and the Making of the
Colonial Marketplace. Philadelphia: University of Pennsylvania Press.
Skinner, Quentin. 1998. Liberty Before Liberalism. New York: Cambridge University
Press.
Stein, Burton. 1960. The Economic Function of a Medieval South Indian Temple. The
Journal of Asian Studies 19/2: 163-76.
Stokes, Eric. 1959. The English Utilitarians and India. Oxford: Clarendon Press.
Sturman, Rachel. 2005. Property and Attachments: Defining Autonomy and the Claims
of Family in Nineteenth-Century Western India. Comparative Studies in Society and
History 47/3: 611-37.

jesho 61 (2018) 920-975

Property and Its Rule 975

Subrahmanyam, Sanjay and C.A. Bayly. 1988. Portfolio Capitalists and the Political
Economy of Early Modern India. In Indian Economic and Social History Review 25/4:
401-24.
Syan, Hardin Singh. 2012. Sikh Militancy in the Seventeenth Century: Religious Violence in
Mughal and Early Modern India. New York: I.B. Tauris.
Tabātabāʾi, Hossein Modarressi. 1983. Kharāj in Islamic Law. Tiptree, Essex: Anchor
Press.
Talbot, Cynthia. 2001. Precolonial India in Practice: Society, Region, and Identity in
Medieval Andhra. New York: Oxford University Press.
Tierney, Brian. 1997. The Idea of Natural Rights: Studies on Natural Rights, Natural Law,
and Church Law, 1150-1625. Atlanta: Scholars Press.
Travers, Robert. 2004. ‘The Real Value of the Lands’: The Nawabs, the British and the
Land Tax in Eighteenth-Century Bengal. In Modern Asian Studies 38/2: 517-58.
Travers, Robert. 2007. Ideology and Empire in Eighteenth-Century India: the British in
Bengal. New York: Cambridge University Press.
Tuck, Richard. 1979. Natural Rights Theories: Their Origins and Development. New York:
Cambridge University Press.
Vikør, Knut S. 2005. Between God and the Sultan: A History of Islamic Law. New York:
Oxford University Press.
Wahba, Wafaa H. trans. 1996. Al-Aḥkām al-Sulṭāniyya w’al-Wilāyat al-Dīniyya (The
Ordinances of Government). Reading, UK: Garnet Publishing.
Washbrook, David. 1981. Law, State and Agrarian Society in Colonial India. Modern
Asian Studies 15/3: 649-721.
Washbrook, David. 1999. India, 1818-1860: The Two Faces of Colonialism. In The Oxford
History of the British Empire. Volume III: The Nineteenth Century, ed. Andrew Porter.
New York: Oxford University Press: 395-421.
Washbrook, David. 2004. Sovereignty, Property, Land and Labour in Colonial South
India. In Constituting Modernity: Private Property in the East and West, ed. Huri
İslamoğlu. New York: I.B. Tauris: 69-99.
Weiss, Bernard. 2006. The Spirit of Islamic Law. Athens, GA: The University of Georgia
Press.
West, Edwin. 2014. Property Rights in the History of Economic Thought. In Property
Rights: Cooperation, Conflict and Law, ed. Terry Anderson and Fred McChesney.
Princeton, NJ: Princeton University Press: 20-42.
Wink, André. 1991. Al Hind: The Making of the Indo-Islamic World, Vol 1: Early Medieval
India and the Expansion of Islam, 7th-11th Centuries. New York: E.J. Brill.
Zysow, Aron. 2013. The Economy of Certainty: An Introduction to the Typology of Islamic
Legal Theory. Atlanta: Lockwood Press.

jesho 61 (2018) 920-975