The Treaty of Berlin of July 1878 gave the Austro-Hungarian Monarchy an international mandate to resolve the agrarian question and modernize the administration. In the terms of the treaty, Bosnia had a vague international law status since it remained under the nominal supervision of the Sublime Porte, without any means of action. This nominal supervision implied, at least in theory, that the provincial political order was not overhauled from top to bottom. Vienna claimed to establish a reign of justice and peace; but as an occupying and mandatory power only, it was forced to do so by respecting Ottoman legislation, like the British in Cyprus, whereas other former Ottoman provinces (Greece, Serbia, Romania, and even Egypt) had introduced fundamental reforms into their legal corpus.
Applying this principle was a challenge for Austro-Hungarian administrators. How could they reform the Bosnian administration while continuing to apply Ottoman law, and in particular, civil law? Maintaining the existing law and only gradually reforming or supplementing it, the Austro-Hungarians modified some mechanisms of the judicial system: for example, commercial courts were closed, consular law was abolished, people who were not magistrates were excluded from the profession, and a Supreme Court was created in 1879 in Sarajevo.[1] For administrative needs, but also in a spirit of adaptation, Ottoman legislative and legal texts were systematically translated into German and/or Bosnian/Serbo-Croatian from 1880 until 1906. This allowed the administrators and judges of the “Occupied Provinces,” for a long time recruited exclusively from other regions of the Monarchy, to navigate the twists and turns of the texts in force. With these translations, the intention was to avoid re-codifying too quickly to let judicial practice prune away what was preventing the convergence of local law with the concepts of Austrian law.[2] It was in this spirit that a small group of Austrian jurists specializing in Ottoman law was gradually established around the School of Cadis (Mekteb-i Nuvvab), founded in 1887-1889, whose work of translation, adaptation and interpretation was considerable.[3]
In land matters, the Austro-Hungarian Monarchy followed a path opposite to the Torrens logic, the prerogative of colonial empires such as the United Kingdom, the United States or Russia. These colonial powers did away with all or most of the previous land legislation. On principle, the Double Monarchy refused to dispossess the Muslims without due process: a point of pride in showing the rest of Europe that it could manage this semi-colony in an exemplary manner and strict application of the principle of tolerance.[4]
In Bosnia, except at the very beginning of the period, the interference of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch — ABGB) was practically not felt in agrarian law.[5] Very quickly, by the summer of 1880 at the latest, the Ottoman Land Code of 1858 and the Tapu Law (Law on Title Deeds) of 1859 were translated into German and Bosnian/Serbo-Croatian, printed and sent to the administrative courts of the prefectures and sub-prefectures. An excellent jurist, Ljudevit Farkaš (1856-1944), analyzed the 1858 Land Code in great detail in 1891.[6] Ten years later, to deepen their knowledge, administrators translated—for internal use—the commentary on the 1858 Land Code by Mehmed Ziyaeddin Türkzade, from Ottoman into Bosnian/Serbo-Croatian.[7]
Very quickly, it appeared that the institution of land records, accompanied by a land register, would lay the foundations of an agrarian system respectful of the law. Initially, a mixed commission of Viennese and Sarajevian officials (all Austro-Hungarian, of course) met to find out if it was possible to produce a land book despite the principle of limited ownership (miri). After initial approval, a select committee was entrusted with the task of writing a regulative frame.[8] The approach adopted was based on a comparison of Austrian and Ottoman land rights with a view to the finest possible reciprocal adaptation to create homogeneous legislation.
Published in 1884 and entitled Grundbuchs-Gesetz für Bosnien und die Hercegovina (Law on Land Books for Bosnia and Herzegovina, GBGBH), the text was mainly edited by Adalbert Shek (1851-1933), who had worked in the administration of the Austrian land register before his arrival in Bosnia-Herzegovina. It was inspired by the Land Registers Act for Austria, promulgated in 1871. Shek had also looked at what the French had put in place in Algeria, without retaining much of it, indeed.[9] In addition to consulting Ottoman texts, Shek also consulted local Muslims reputed to be knowledgeable about the agrarian system and he was interested in customary law, too. He accompanied the GBGBH with instructions for its application and a commentary of some forty pages.[10]
The first article of the GBGBH assumed the entire Land Code of 1858 as well as the most important subsequent Ottoman legislation (especially the Tapu Law of 1859). Its ten articles nevertheless brought some exceptions, of which I will note here above all the modification of the titles of possession. Actually, the Ottoman tapu gave only a very vague description of the property to which it related and was not intended to support modifications. They were now replaced by precise titles recorded in land books, which allowed mortgages, which was in practice absent from Ottoman land law.[11]
This restructuring responded to a profound reshuffling of land categories: the GBGBH assimilated (erroneously) waqf land to miri or mülk,[12] and only recognized three types of property. The first was full and unlimited ownership (mülk),[13] the second property limited by law (miri). Of these two Shek asserted that they formed a solid basis of land ownership. He added a new category, the Staatseigentum (State property), which therefore generated Staatsdomän (State domain), which was not covered by the Land Code of 1858, but which was induced by Ottoman legislation on forests (Shevval law of 1869).[14]
Did Shek know that by formalizing this new category, he was initiating an evolution of the concept of public domain of miri? Probably not at the time. In Ottoman law, the miri can be understood as a notion halfway between the private domain of the State and the public domain: the occupant has a usufruct right, and the grantor—the beyt-ul mal, that is to say the Treasury of the Islamic community—has the duty to ensure the land is cultivated. By creating the category of Staatseigentum, which filled the legal space of state property, Shek had therefore pushed the miri towards the side of the public domain, which in turn conferred more possessing power to the holder of a usufruct title because the eminent owner (state) had an additional degree of abstraction. In theory, on miri lands, the right of ownership theoretically corresponded to a concession from the sovereign (as head of the Islamic community). In practice, however, this absence of full ownership did not pose any particular problem for the circulation of goods and it was only necessary to refer to the authorities in case of a major political or economic impediment—which left the door open to many interpretations.
Shek had reinterpreted the complementary pair, in Ottoman law, of raqaba (right of occupation) and tasarruf (right of tenure), in light of the fundamental opposition dominium eminens/usufructus of Roman law, but without assimilating these categories. In other words, Ottoman law was simplified but not polarized between private and public property. Shek’s interpretation differs from what happened in many other post-Ottoman regions.[15]
In 1910, Shek’s son-in-law, the influential lawyer Ivo Pilar (1874-1933), drew up a general assessment of the GBGBH. According to him, the GBGBH defined inheritance rights, pre-emption and entry rights as well as the right of reversion enjoyed by the State like the Ottoman Land Code did. This continuity should not, however, mask the ambiguities from three factors: born from the spirit of the Tanzimat, from legal gaps and from the conceptual vagueness of the miri. First, according to Pilar, the Tanzimat legislation did not clearly define the separation of justice and administration; similarly, the distinction between ownership (Eigentum), possession (Besitz) and occupation (Innehabung) was foreign to the Land Code of 1858, whereas it founded the ABGB. There was therefore no real usucapion (no real prescription), no protection of property, no bona fides. Second, everything that was outside the matters covered by the Land Code was left to the discretion of the judge, who did not know which code to trust. Finally, The GBGBH required miri property transactions to be carried out in the presence of a State representative and with his consent. Pilar had noticed that the Bosnian peasants were not very concerned about this obligation, which therefore rendered their sales among themselves legally void.[16]
To understand how important this question of the extension of rights given by the miri status was in Bosnia-Herzegovina, I will end by mentioning three legal controversies which arose from the years 1895-1900.
The first centered around the nobility of the Muslim owners: were those who bore the title of bey likely to bear a noble title? Apart from the margins, the Austro-Hungarian administration always refused to transmit the requests for ennoblement. This exclusion was justified on the basis that the Timariotes from whom they descended did not enjoy the same rights on their lands as the nobles of the Monarchy, in particular because of the limited property represented by the miri.[17] This amounted to saying that the Ottoman social organization was not recognized as a feudal one, in the European sense of the term, and that miri property was always considered ultimately as eminent property of the State.
The second dilemma took shape around the mülk nature of certain lands, specifically communal (pastures or woods burdened with work), forests, as well as sharecroppers’ houses and gardens. This controversy took shape during the political opposition movement of Muslim elites in Bosnia against Austro-Hungaria, at the head of which from 1905 was the landed elite. These landed elites accused the Territorial Administration of having usurped for the benefit of the state (Staatsdomän) these lands and forests which were in reality mülk or metruke (public goods). Although this accusation, in its context, was as much a political calculation as a misunderstanding of Ottoman land legislation, we can understand that the presence of Staatsdomän (State domain), a forced notion based on recent developments in Ottoman law, disturbed the owners.
The third crystallized around the claims of Orthodox Serbs to land ownership, and subsequently of Muslims. Both claimed full ownership of the land, assimilating the miri to the mülk. On the Muslim side, it was asserted that the sahib’s (master/administrator of the land) lands had always been mülk, never miri.[18] On the Orthodox side, the French orientalist François-Alphonse Belin (1817-1877) was invoked to accuse the beys of having usurped the land of the peasants, claiming that they had enjoyed it without hindrance in the beginning of the Ottoman regime (late 15th – early 16th Century).[19] Between these two viewpoints, the Territorial Administration always held onto the doctrine of GBGBH. Shek himself gave a response in front of the Parliament in Sarajevo during the harsh debates on the agrarian question, in 1911, refuting any assimilation of miri to “dominium”:
When it comes to miri, the legal nature of the land remains unchanged; when we say property [vlasništvo], it can only be miri property, that is to say, property to the extent given in the Land Code of 1858, and in no case property in its full sense, as it is commonly understood. What an unfortunate property that would be, since the State has the right, if I do not cultivate land for three years, to take it back for itself?! Is this property?! Is it property in the sense of Roman or Austrian law?! Let’s leave this idea straight away.[20]
Let me add a brief lexical comment. Until 1878, the word vlasnik and its derivative vlasništvo (or vlasnost, in the Croatian translation of the ABGB), which render the legal notions of Eigentümer and Eigentum (owner and ownership), seem absent from sources of Bosnian origin. If they exist, they are in any case exceptional. The root of vlasnik clearly indicates a dominium eminens over a given territory (also present in oblast). There was nothing like this in Ottoman Bosnia. Next to posjed—whose etymology corresponds exactly to the Latin possessio or the German Besitz (possession)—or imanje (bonum, Gut, estate), we most often encounter zemlja, “land,” čifluk/čitluk “exploitation,” and “farmhouse”; the Sharecropping Regulations of 1859 (Talimat), written in Bosnian, use the Turkish word mal, meaning very generally “material property” (equivalent to imovina). Very quickly after 1878, however, vlastnik, vlasništvo and vlasničtvo [sic] will spread in usage, certainly due to the language reflexes of the Croatian- and Serbian-speaking administration.
To conclude, Austro-Hungarian jurists made considerable efforts to understand Tanzimat law and contributed in a great extent to its rationalization. They introduced concepts that were foreign to it, some of which belonged to what is known as modernity—the privatization of the concept of property, the State estate; other concepts have been left aside here because they did not originate in the legislation of 1858. Alongside these innovations, many of the institutions of the Ottoman agrarian world were retained, so it would be wrong to think that the Austro-Hungarians betrayed the spirit of Ottoman legislation from beginning to end. To a certain extent, it is more accurate to think that these creations were not in flagrant contradiction with Ottoman law and represented more a possible outcome of the logic of the Tanzimat than its alteration.
This legal formalization created the mental framework within which the agrarian question could develop as a claim on property. Closely associated with the assimilation of the miri to the mülk and the mülk to the dominium plenum (full ownership), it was on the basis of the property rights of tenant farmers that the main political debate in Bosnia-Herzegovina developed in the decade leading up to 1914; the attack of June 28, 1914 itself was an indirect result of this debate and of the agrarian policy of the Austro-Hungarians.
Notes:
[1] Mehmed Bećić, “Austrougarska reforma pravosuđa i građanskog postupka u Bosni i Hercegovini,” Godišnjak Pravnog fakulteta u Sarajevu 58 (2015): 110-11.
[2] Извјештај о управи Босне и Херцеговине 1906-1915 [Bericht über die Verwaltung Bosniens und der Herzegowina, 1906-1915], 34.
[3] See in particular the chapter on Bosnia in Thomas Simon, Gerd Bender, Jani Kirov, eds., Konflikt und Koexistenz. Die Rechtsordnungen Südosteuropas im 19. und 20. Jahrhundert (Francfort-sur-le-Main: Vittorio Klostermann, 2017), 43-180 (written by Fikret Karčić, Mehmed Bećić and Edin Radušić).
[4] This was the position of the most famous governor of the province, Béni von Kalláy. Cf. Hamdija Kapidžić,
“Аграрно питање у Босни и Херцеговини за вријеме аустругарске управе (1878-1918),” Godišnjak društva istoričara BiH 19 (1970-71): 80-81.
[5] Ivo Pilar, “Entwicklungsgang der Rezeption des österreichischen allgemeinen bürgerlichen Gesetzbuches in Bosnien und der Herzegowina unter besonderer Berücksichtigung des Immobilienrechtes,” in Festschrift zur Jahrhundertfeier des Allgemeinen Bürgerlichen Gesetzbuches (Wien, Manz, 1911, réédité dans Pilar 7/13 (2012): 127-48), 725-26; Michael Zobkow, “Primjenjivanje austrijskog Općeg građanskog zakonika u Bosni i Hercegovini,” Mjesečnik 47, no. 8 (1921): 313-34 resumed by Fikret Karčić, “Opšti građanski zakonik u Bosni i Hercegovini. Kodifikacija kao sredstvo transformacije pravnog sistema,” Zbornik Pravnog fakulteta u Zagrebu 63, nos. 5-6 (2013): 1031-32.
[6] Ljudevit Farkaš, “Zakon od 7. ramazana 1274 (1858) o zemljišnom posjedu (Sa zakoni i naredbami,
stojećimi s njime u tiesnom savezu),” Mjesečnik 17, no. 4 (1891); Farkaš (Ljudevit), “Zemljišno zakonodavstvo u Bosni i Hercegovini,” Arhiv za pravne i društvene nauke 15, no. 3 (1925). On Farkaš, see Bertold Eisner, “Ljudevit pl. Farkaš,” Mjesečnik 70 (1944): 350-351; Enes Durmišević, “Officials Specialized in Shari’ah Law During the Austro-Hungarian Period in Bosnia and Herzegovina (1878-1918),” Annals FLB 58, no. 3 (2010): 62-64; Halid Sadiković, Iz prošlosti Ljubuškog (Sarajevo: H. Sadiković, 2013).
[7] Mehmed Ziyaeddin Türkzade, Mükemmel ve muvazzah şerhi kanun-u arazi (Istanbul: Kasbar Matbassi, 1311 [1893/1894]), trad. Bcms : Asim Škaljić, Upotpunjeni i razjašnjeni komentar (Gruntovnog zakona, s.l., s.n., 1903). We do not know why this commentator was preferred to others.
[8] Eduard Eichler, Das Justizwesen Bosniens und der Hercegovina (Wien: k.-k. Hof-und Staatsdruckerei, 1889), 294.
[9] Shek heard a high representative, Carl Scheimpflug (1856-1944), who published later his research (original in Hamdija Kapidžić, ed., Agrarni odnosi u BiH (1878-1918). I. Građa (Sarajevo, Arhiv BiH, 1969), 148-61; Carl Scheimpflug, Bosnisches und Algerisches Agrarrecht (Wien: Kirsch, 1882).
[10] Mustafa Imamović, Pravni položaj i unutrašnjo-politički razvitak Bosne i Hercegovine od 1878. do 1914 (Sarajevo: Bosanski kulturni centar, 1997), 38. The main text is Grundbuchs-Gesetz für Bosnien und die Hercegovina, sammt den zugehörigen Instructionen I und II, dann der Verordnung über die Grundbuchs-Commissionen (Wien: k.-k. Hof- und Staatsdruckerei, 1884); its commentary is Erläuternde Bermerkungen zu dem Entwurfe eines Grundbuchs-Gesetzes für Bosnien und die Hercegovina (Wien: k.-k. Hof- und Staatsdruckerei, 1884). On Austrian Law, see Julius Schimkowsky, Das allgemeine Grundbuchsgesetz vom 25. Juli 1871 (Wien: Manz, 1872). See also Mehmed Bećić, “Osmansko tanzimatsko pravo i austrougarski pravni poredak u Bosni i Hercegovini,” Anali Pravnog fakulteta Univerziteta u Zenici 12 (2013):198-99.
[11] Franjo Kruszelnicki discusses this point in Osnovi hipotekarnoga prava po Općem građanskom zakoniku s obzirom na Gruntovnički zakon za Bosnu i Hercegovinu (Sarajevo: Zemaljska štamparija, 1914). Note that mortgage is not foreign to Islamic law in general. Cf. Baber Johansen, The Islamic Law on Land Tax and Rent. The Peasants’ Loss of Property Rights as Interpreted in the Hanafite Legal Literature of the Mamluk and Ottoman Periods (London, New York, Sydney: Croom Helm, 1988), 22.
[12] Mehmed Bećić, “Pretvaranje mukata vakufa u Bosni i Hercegovini u privatno vlasništvo posjednika,” Godišnjak Pravnog fakulteta u Sarajevu 62 (2019): 33-76.
[13] This interpretation of mülk was the most widespread at that time, and remains very popular nowadays (for instance by Fikret Adanır, “Tradition and Rural Change in Southeastern Europe During Ottoman rule,” in The Origins of Backwardness in Eastern Europe. Economics and Politics from the Middle Ages Until the Early Twentieth Century, ed. Daniel Chirot (Berkeley: University of California Press, 1989), 135). Its classical expression is to be found by François-Alphonse Belin, who defines mülk as dominium plenum in re potestatem, with all rights of jus utendi, fruendi et abutendi. François-Alphonse Belin, “Étude sur la propriété foncière en pays musulmans et spécialement en Turquie (rite hanéfite),” Journal Asiatique 5, no. 18 (October-November 1861): 410.
[14] On forests in Bosnia, see Eugen Sladović, “Pravni i posjedovni odnosi u Bosni i Hercegovini s osobitim obzirom na šume,” in Pola stoljeća šumarstva 1876-1926. Spomenica Jugoslovenskog šumarskog udruženja o slavi njegove pedesetogodišnjice, ed. Aleksandar Ugrenović (Zagreb: s.n., 1926), 172-87; Branislav Begović, Razvojni put šumske privrede u Bosni i Hercegovini u periodu austrougarske uprave (1878-1918) sa posebnim osvrtom na eksploataciju šuma i industrijsku preradu drveta (Sarajevo : ANUBiH, 1978).
[15] In the case of Palestine under the British Mandate, the interpretation of miri has been the subject of critical analysis: translated as state land and understood as crown land or public domain, the word would have justified the economic exploitation of the region by settlers invested with full property rights; the British would have forgotten that the cultivators themselves possessed an intangible usufruct. See Martin Bunton, “Demarcating the British Colonial State. Land Settlement in the Palestinian Jiftlik Villages of Sajad and Qazaza,” in New Perspectives on Property and Land in the Middle East, ed. Roger Owen (London: Harvard University Press, 2000) 121-58 resumed by Siraj Sait and Hilary Lim, Land, Law and Islam. Property and Human Rights in the Muslim World (London: Zed Books, 2013), 68-72. These Palestinian interpretations were based on the precedent of British Cyprus, see Alexis Rappas, “The Sultan’s Domain: British Cyprus’ Role in the Redefinition of Property Regimes in the Post-Ottoman Levant,” The International History Review 41, no. 3 (2019): 624-49. The same situation was found in French Algeria: the miri was state-owned, Didier Guignard, “Les inventeurs de la tradition ‘melk’ et ‘arch’ en Algérie,” in Les Acteurs des transformations foncières autour de la Méditerranée au xixe siècle, eds. Vanessa Guéno and Didier Guignard (Paris-Aix: Karthala/MMSH, 2013), 49-93. In South Dobroudja, when it was annexed by Romania in 1918, the Romanian state demanded that peasants with miri land cede a third of it to the state. Cf. Petăr Todorov, Аграрните отношения в южна Добруджа 1878-1944 г. (Veliko Tărnovo, Velikotărnovski Univerzitet Kiril i Metodiï, 1982); Anna M. Mirkova, Land Ownership and Modernization in the Transition from Imperial Ottoman to National Bulgarian Rule (1878-1908) (University of Michigan, 2006).
[16] Pilar, “Entwicklungsgang,”; Tomislav Jonjić, “Ivo Pilar o recepciji austrijskoga Općega građanskog zakonika u Bosni i Hercegovini,” Pilar 7, no. 13 (2012): 126. Many other GBGBH commentaries were published, but they were not as seminal as Shek’s and Pilar’s.
[17] Husnija Kamberović, Begovski zemljišni posjedi u Bosni i Hercegovini od 1878. do 1918.godine (Zagreb, Sarajevo: HIP/Institut za istoriju, 2003), 39-108.
[18] Mustaj-beg Mutevelić, Agrarni govor narodnog poslanika Mustajbega Mutevelića održan u bos. herceg. Saboru dne 4. aprila 1911. sa dodatkom: Nekoliko odgovora protivnicima o našem erazi-mirijskom vlasništvu (Sarajevo : Zem. Štamparija, 1911). On all these debates, see Edin Radušić, “Agrarno pitanje u bosanskohercegovačkom saboru 1910-1914,” Prilozi Instituta za istoriju 34 (2005): 119-54; Husnija Kamberović, “‘Turci’ i ‘kmetovi’ – mit o vlasnicima bosanske zemlje,” in Historijski mitovi na Balkanu, ed. Husnija Kamberović (Sarajevo : Institut za istoriju, 2003), 67-84.
[19] Kočić, in Stenografski izvještaji o sjednicama bosansko-hercegovačkog sabora. I. zasjedanje (Sarajevo: Zemaljska štamparija, 1911).
[20] Quotation from Kamberović, Begovski zemljišni posjedi, 119: “Kad se govori o miriji, i kad pravna narav zemljišta ostaje netaknuta, i kad se kaže ‘vlasništvo’, to može biti samo mirijsko vlasništvo, to je ono vlasništvo, ukoliko ga daje ramazanski zakon, a nikako vlasništvo u punom opsegu, kao što se obično uzima svojina. Kakva bi to nesretna svojina bila, kad država ima prava, ako ja ne obrađujem jednu zemlju tri godine, da je uzme sebi natrag ?! Je li to onda svojina ?! Je li to vlasništvo u smislu rimskog ili austrijskog prava ?! O tome ne može biti govora !” (my translation).
(Suggested Bluebook citation: Philippe Gelez, Adaptation of the 1858 Ottoman Land Code in Bosnia and Herzegovina under Austro-Hungarian Rule (1878-1918), Islamic Law Blog (Feb. 16, 2024), https://islamiclaw.blog/2024/02/16/adaptation-of-the-1858-ottoman-land-code-in-bosnia-and-herzegovina-under-austro-hungarian-rule-1878-1918/)
(Suggested Chicago citation: Philippe Gelez, “Adaptation of the 1858 Ottoman Land Code in Bosnia and Herzegovina under Austro-Hungarian Rule (1878-1918),” Islamic Law Blog, February 16, 2024, https://islamiclaw.blog/2024/02/16/adaptation-of-the-1858-ottoman-land-code-in-bosnia-and-herzegovina-under-austro-hungarian-rule-1878-1918/)