Property and the Private in a Sharia System

I AS we commonly employ it, the private-public distinction is a Western one, anchored in the history of the rise of modern states and societies and in the economic and legal transformation of Europe. As such, the private-public distinction is closely associated with the advent of the Western capitalist property regime. This private-public distinction subsequently came into significance in Muslim societies in the Middle East, North Africa, the Indian subcontinent, and Southeast Asia, but at differing times and in differing degrees because of the regional and local specifics of imperial, colonial, and national histories. With what did this in-coming distinction articulate in Muslim societies? The story of the preexisting systems, again, is one of great difference from place to place. The case I will examine— highland Yemen around the middle of the twentieth century— involves a history distinct from most Muslim societies since the Yemeni state was independent from 1919. This part of Yemen did not go through the various sorts of changes—including the introduction or extension of the Western public-private distinction— that were associated with direct or indirect colonial (or mandate) rule by a Western power. There are two major qualifications to this relative isolation: directly to the south, from the 1830s, the highlands were in contact with the British colonial enclave at the port of Aden, and, in the decades prior to 1919, highland Yemen SOCIAL RESEARCH, Vol. 70, No. 3 (Fall 2003) Property and the Private in a Sharia System BRINKLEY MESSICK was a distant and often rebellious province of the Ottoman Empire in its final decades. In contemporary Yemen, forms of the public-private distinction are firmly entrenched. The 1962 revolution marked the local appearance of the nation-state and, with it, the beginning of the continual elaboration of new public institutions. A distinction must be made, however, between the basic differentiation of “private ” and “public,” the categories of the individual and of society as separate from the state, notions which go back to Roman law, and the related, but more complicated Habermasian idea of the “public sphere.” “The bourgeois public sphere,” Habermas writes (1989: 27), “may be conceived above all as the sphere of private people come together as a public. . . .”1 Here I sketch a different genealogy of the private, focusing on an association with a particular property regime based in Sharia (Islamic law). Centered on the individual (a legal figure I will call the Sharia subject), the complex private relations based on this property regime do not stand in the same sort of historical dichotomous relation with a notion of the “public,” either in the sense of private individuals “come together” or in that of the nation-state. In Yemen, the polity of the midcentury period was a type of Islamic state, one based on the Sharia in ideology and in application, and headed by a classical form of jurist-leader, a figure known as an imam. Prior to the twentieth century, and prior to the nearly 50-year Ottoman interlude (1872-1919), this Yemeni form of a Sharia-based Islamic polity had a thousand-year history in the highlands. In the late twentieth century, commercialization in Yemen would culminate in internationally familiar private forms such as Pizza Hut franchises. What sort of antecedents existed, at the level of highland property relations, for these later capitalist transformations ? At midcentury, highland society was agrarian, based primarily on settled plow and hoe cultivation and the associated property regime was almost exclusively one of individual ownership . Mountainous, elaborately terraced and watered by regular 712 SOCIAL RESEARCH summer monsoon system rains, highland Yemen was unlike the physical settings of many other Muslim societies where, in the premodern era, either riverine cultivation or nomadic pastoralism had predominated. The Sharia-based property regime in highland Yemen also was unlike those in many historical contexts where ultimate title was vested in the state, as in much of the Ottoman Empire (for example, miri property), or that involved significant forms of collective holding (for example, mushà property ) at the village or tribal level. There was very little state land in Yemen, except for the properties confiscated from the family of the imam after the revolution...