The Property of Empire: Islamic Law and Russian Agrarian Policy in Transcaucasia and Turkestan

At the center of this essay is an analysis of the implementation of discourses on "Islam and property" in Russian colonial policy in Transcaucasia and Central Asia. The essay seeks to analyze how the common (European) language for describing property rights (the language of Roman law) was applied to landholding in the Islamic world, and whether that "translation" influenced Russian land policy in its borderlands. Briefly, my hypothesis is that Russia's policy on property in its southern borderlands in the 1870s–80s invoked a vision of a "normal" (European liberal) model of absolute private property. Against the background of that model, the "Islamic model" of landholding was perceived as a deviation. At the same time, however, the perceived specificity of indigenous laws provided an opportunity for local colonial administrators to circumvent "European" norms of property relations: Russian colonial administrators, following the views of certain Orientalists, interpreted the "Islamic model" of property in accordance with the administration's goals in the region and used this interpretation to enlarge the state domain. This policy of enlarging the state domain by limiting the rights of settled tenants, however, was ultimately rejected by the government as a politically and economically ineffective method of advancing Russia's colonizing goals in its borderlands. Therefore, as I try to prove, the Russian government deliberately refused to accept the model of patrimonial state property in its colonies.

This article, while focusing on specific episodes of Russia's colonial land policy, addresses a number of broader questions in the history of Russian and European colonialism and law: the problem of legal pluralism,¹ continuity and succession of rule after the conquest; and the problem of taxonomy, classification and translation of legal notions and principles. I also emphasize the role of colonial experience in shaping basic concepts for the empire—that is, the concepts of property (private and state) and possession. Russia's agrarian policy on its borderlands mirrored the specificity of Russian civil law and revealed stunning contradictions between the European legal framework inbuilt in the legislation and the reality of Russia's politics of property.

Before I turn to the much-debated issue of Islamic law and its integration into the legal system of multinational empires, a few words outlining the structure of this article are in order. To explain the complexity of factors involved in the shaping of property law in the borderlands, I must address various issues that are not obviously connected to one another. Thus the structure of the narrative is as multilayered as the object of study itself. I begin with an analysis of the major differences between the 19th-century European approach to the definition of property and that of Islamic legal doctrine; then I briefly address one particular example of how these understandings were reconciled in policy—that of agrarian policy in French colonial Algeria (1830–63). This example is of particular importance to the analysis of Russian legal policy in the former Ottoman provinces of Transcaucasia and Central Asia: as in these newly Russian provinces, in Algeria the French had to deal with the heritage of the Ottoman Empire, and they built their system of land property on the basis of that model. As I demonstrate in this essay, in spite of these similar foundations, French and Russian rulers arrived at different models for the agrarian order. Yet the French example continued to exert great influence over Russian civil legislation on property.

Equally important in shaping Russia's attitude to the problem of property in its Muslim provinces was the agrarian reform launched in the Ottoman Empire in 1858. As I seek to demonstrate, a peculiar translation and interpretation of the Ottoman Land Code allowed Russian colonial administrators to install a regime of state property in almost all lands of the conquered Turkish provinces. Moreover, the Ottoman Land Code's influence was not limited to the legal boundaries of the former Turkish provinces. Russian Orientalists and colonial administrators used this "Islamic model of property" as a convenient summary of "Muslim" civil laws and marshaled it as an...