Abd al-Ghanī al-Nāblusī's Fatwā Regarding the Financial Obligation's for Dhimmīs: Critical Edition and Analysis
Abstract
Abd al-Ghanī al-Nāblusī (v. 1143/1731) is a scholar who has a deep grasp of fiqh as in many sciences. Among the works that have been transferred to the present day from this Islamic jurist who has the jurisprudence competence, there are also journals containing his fatwās. al-Nāblusī's fatwā, which constitutes the subject of this study, is included in the copies that are available in various manuscript libraries in written form. In this study, the critical edition of this fatwā with a small volume of treatises was also made.
al-Nāblusī gave this fatwā upon the question of some Muslims living in Jerusalem in the year 1114 (1702). After the questioners told al-Nāblusī that the conqueror of Jerusalem had made non-Muslims living in this city liable to make payments in cash or in kind to some Muslims at certain intervals and that they also had made these payments since then, they asked whether it was halal for Muslims to receive the cash and goods under the name of “ʿawāʾid” given by non-Muslims. Furthermore, they also asked him to answer the question of whether the qadi (Muslim judge) had an authority to preclude the successors of the people determined by the conqueror and to make others right holder.
al-Nāblusī is a scholar who lived in Damascus between the end of the 17th century and the first part of the 18th century. The period during which he lived corresponds to a period during which the balances were disturbed, and accordingly unfair practices also increased in the Ottoman Empire which was the dominant state of that period. This situation was also manifested in the taxation system, and during this period, the national subjects were unlawfully held liable for many additional taxes and payments.
The sources addressing the Ottoman Empire's taxation system divided the taxes collected from national subjects into two main sections: religious taxes and civil taxes. While no tax was imposed apart from religious taxes in the Ottoman Empire during the early period, there was a need to impose additional taxes after a certain period. The imposition of these kinds of taxes, which are expressed as civil taxes, relies on the judgment of permissibility given by Islamic jurists regarding the fact that the state can also impose taxes apart from religious taxes in case of need. Although no tax was imposed apart from religious taxes during the early period of Islamic history since the opportunities of Bayt al-mal (treasury of Islamic State) were sufficient, the opportunities of Bayt al-mal began to be insufficient over time in the states founded by Muslims, therefore, Islamic jurists permitted the imposition of additional taxes to religious taxes especially considering the needs of the army or the national subject. Nevertheless, they introduced quite strict records for the relevant judgment of permissibility so that it would not be the cause of abuse. The taxes imposed apart from religious taxes are emergency and provisional taxes limited by the time of need by their nature. Indeed, ʿawāriz (extraordinary tax in the Ottoman Empire), one of the taxes apart from religious taxes, was named in this way due to the said feature. However, such taxes would become regular and continuous taxes in the Ottoman Empire as of the XVII century. The main reason for this situation was that the main elements of the system were corrupted and the fiscal deficit gradually increased. During the XVII and XVIII centuries, military, economic and administrative crisis deepened further, and the control of the state on the territories dominated by it also decreased evenly. Nevertheless, the fact that local factors were highly effective in the imposition and collection of civil taxes led to a far greater increase in abuses compared to previous periods. Local factors, local administrators and the officials who were responsible for tax collection held the national subject liable for various payments in cash or in kind contrary to rules of taxation. Although the state struggled with these payment obligations called al-takālīf al-shāqqa (unlawful impositions) and published justice decrees, they could not be prevented. This situation affected the non-Muslim national subjects along with the Muslim national subjects.
The majority of the obligations under the name of al-ʿawāʾid al-muʿtāda, the judgment of which was asked by the Jerusalemites, are included in al-takālīf al-shāqqa (unlawful impositions). Although those who asked al-Nāblusī the religious judgment of ʿawāʾid claimed that the conqueror of Jerusalem made dhimmīs liable to pay ʿawāʾid to them, their claim was legally groundless as it is revealed in the fatwā text of al-Nāblusī. Indeed, there is no information in the documents about this period that the conqueror of Jerusalem imposed these payments to dhimmīs. In a study conducted based on these documents, it was reported that Dhimmīs made payments to major Muslim families in Jerusalem mainly for purposes such as expanding their patronage or zone of influence. While al-Nāblusī focused on the reason why ʿawāʾid could be given, he stated that Dhimmīs could make payments under the name of ʿawāʾid only for the purpose of protection. al-Nāblusī stated in his fatwā that ʿawāʾid was ill-gotten and definitely indicated that non-Muslims would have the same rights and liabilities as the rights and liabilities of Muslims apart from worship after they pay jizya, therefore, it was not halal to receive another tax apart from jizya from dhimmīs. While addressing this issue, al-Nāblusī also gave valuable information about how non-Muslims should be treated within the frame of rights and law. He emphasized that the violations of right against non-Muslims would otherworldly result in sadder consequences than violations against Muslims, and he underlined that the issue also had the faith aspect by indicating that receiving such payments from dhimmīs and the transfer of them through inheritance as a right were something like considering ill-gotten as halal. al-Nāblusī , who strongly argued against all such payment obligations and taxes, defined all of them as persecution taxes no matter they are received from Muslim or non-Muslim subjects. While al-Nāblusī was explaining his opinions in this way, he also mentioned ʿawāriz (extraordinary tax in the Ottoman Empire) among such tax and payment liabilities. This can be interpreted that he was generally against civil tax imposition. However, based on the fact that the sultan did not deny such acts and made them conditional on justification with evidence in the first part of his fatwā, it can be concluded that he was against the applications performed under this name during his period.
Keywords
Abdülganî En-Nablusî’nin Zimmîlerin Mâlî Yükümlülüklerine Dair Fetvası: Tahkik ve Tahlil
Abstract
Bu çalışmanın konusunu birçok ilimde olduğu gibi fıkıhta da derin vukufiyete sahip bir âlim olan Abdülganî en-Nablusî’nin (v. 1143/1731) zimmîlerin cizye haricinde mükellef kılındıkları vergi ve ödemelere dair bir fetvası teşkil etmektedir. Sözkonusu fetva çeşitli yazma eser kütüphanelerinde bulunan yazma nüshalarda yer almaktadır.
Nablûsî bu fetvâyı, Kudüs’te yaşayan bazı müslümanların sorusu üzerine 1114 (1702) senesinde vermiştir. Sorunun sahipleri, Nablusî’ye Kudüs’te ikamet eden zimmîlerin, bazı müslümanlara, belli aralıklarla avâid adı altında aynî ya da nakdî ödemeler yaptıklarını ifade ederek, bu nakit ve eşyaları almanın müslümanlar için helal olup olmadığını sormuşlardır. Ayrıca Nablusî’den, kadının, bu konuda, avâidi alan kimselerin varislerini değil de başkalarını hak sahibi kılma salahiyetinin bulunup bulunmadığı hususunu da cevaplamasını istemişlerdir.
Nablusî’nin yaşadığı zaman dilimi devrin hâkim devleti Osmanlı Devleti’nde dengelerin bozulduğu, buna bağlı olarak haksız uygulamaların arttığı döneme tekabül etmektedir. Bu durum vergi sisteminde de tezahür etmiş, bu dönemde tebea kanunsuz olarak fazladan birçok vergi ve ödemelerle yükümlü kılınmıştır. Avâidi de bu kapsamda gören Nablusî, zimmîlerin cizye verdikten sonra ibadetler dışında müslümanların sahip oldukları hak ve mükellefiyetlerin aynına sahip olacaklarını, ilave bir ödemeyle yükümlü tutulamayacaklarını ifade etmiş, ayrıca tebeaya yüklenen kanunsuz ödeme mükellefiyetlerinin tümüne karşı çıkmıştır. Nablusî meseleyi müdellel bir şekilde ele alırken, aynı zamanda zimmîlere hak ve hukuk çerçevesinde nasıl muamele edilmesi gerektiğine dair kıymetli bilgiler de vermiştir.
Makalede şer‘î vergiler haricindeki vergilere kayıt getirmek suretiyle cevaz veren fakihlerin görüşleri aktarılmış, dönemin Osmanlı Devleti’ndeki vergi uygulamaları hakkında bilgi verilmiş, Nablusî’nin verdiği fetvanın muhtevası tanıtılarak tahlile tabi tutulmuştur. Son kısımda küçük bir risale hacminde olan fetvanın tahkikli neşri yer almıştır.
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