Law in the Ottoman Empire
Abstract and Keywords
This article examines Ottoman law within the context of Islamic law. It first considers the fetva (Arabic, fatwa) collections as important sources shedding light on Ottoman law and their relation to kadi rulings, along with the methodological problems besetting the kadi court records as a historical source. It frames research on Ottoman law by drawing upon Max Weber, analyzing the extent to which the formal shari‘a was actually practiced in the Ottoman Empire. It considers recent research on the regulation of sexual relations and the punishment of crime. Finally, it explores the status and role of the kadi in the adjudication and professionalization of the Ottoman judiciary.
Though it is difficult to tell this from general histories of Islamic law, Ottoman law occupies a special place in the history of Islamic law. While no doubt still part and parcel of classical Islamic culture, this law was characterized by several new features. The most basic one seems to be a matter of coincidence, but one that turns out to be the most important—this is the fact that while for classical Islam we practically have no court registers, for the Ottoman period we possess thousands of such registers (sicill). As a consequence, while many (most?) studies on classical Islamic law are about legal philosophy (the development of the doctrine), origins of the doctrine, etc., the study of Ottoman law permits an emphasis on law in practice, as it actually functioned in Muslim courts of law. This must be of some importance: we shall see for example that most of the Qur’anic punishments, the hudud, were not implemented in their literal sense, thus forcing a relaxation of the former harsh opinion of the traditional Islamic shari‘a. In the same context of the relations between Ottoman law and classical Islamic law, it has been claimed recently that we can assume that what the Ottoman sicills tell us about the law is more or less what took place in the classical Islamic shari‘a courts.1 This statement needs much more research to be considered convincing.
(p. 476) The fact that we possess for the Ottoman period an incredible abundance of court records, should not blind us to the fact that there is another crucially important source shedding light on this law—the fetva (Arabic, fatwa) collections. Fetva as it developed in the classical law was a legal opinion supplied by an expert, mufti, to a person, usually, though not exclusively, a party to a lawsuit before the kadi. The item of knowledge supplied by the mufti is expressly legal–theoretical, but it usually relates to a practical and worldly issue, what makes the mufti a bridge between Islamic law and real life. Needless to say, in the future, legal historians will have to come back to the fetva collections to look more carefully into the relations between fetvas and kadi rulings. But in the last three decades or so the surge of sicill studies has been such as to push aside almost any interest in areas that are not part of hard core legal practice. Space limitations will necessarily limit my own approach in this historiographic essay to the law in action, that is, kadi court records.
Space limitations will also prevent me from delving in any detail into the thorny question of the methodological problems besetting the kadi court records as a historical source. I will mention just a few points. The main issue has to do with the fact that the record is not a verbatim transcription of what went on in the court, but only a skeletal summary, leaving out the interrogations, hesitant retractions, expressions of personal feeling, and the like. Also, there is no information on the judges and their approaches to various issues, as we can see in the materials surrounding the debates on American legal realism, where the objectivity of the judge was declared a myth, hence the identity of judges became important in understanding their rulings.2 No such sensitivity or problem ever arose in Ottoman or Islamic law in general (I devote some more space to Islamic-law related insights that can be distilled from legal realism later in this chapter). But what bridges many of these faults is that we basically get what the claims of the parties were, and we have the decisions of the kadis. Despite claims to the contrary, these factors nonetheless make this source all-important for Ottoman-Islamic legal history for generations, especially if we bear in mind that no other source is problem-free.
In looking for one succinct question that would contain as much of the research on Ottoman law as possible, the research agenda of Max Weber seemed to me to be the most appropriate. Weber’s findings may not be considered fully valid today; but his theoretical model is still ingenious, and his influence still enormous. Even his substantive findings have in recent years been resuscitated to a certain extent. Weber used Islamic law (for which he dubbed the famous, or infamous, term kadi justice) as a term of art to describe legal systems that are far removed from the ordeal type of law, in which there is no weighing of the evidence of the litigants. The kadi’s system of thought was substantively rational, but not formally rational: the kadi weighed the validity of litigants’ arguments without the direction of a law code, but rather on the (p. 477) basis of ethical considerations, expediency, whims, corruption, or at the prodding (or under the pressure) of political authorities.3 Weber knew full well about the oceanic volume of law literature in Islam, known under the term of shari‘a or fiqh. But he lived under the assumption, universal until the 1970s, that after the closure of the gates of ijtihad somewhere in the high Middle Ages, Islamic law ceased to develop, and with the passage of time became increasingly removed and detached from real life, leaving the kadi no option but to resort to his own common sense and other intellectual resources in deciding legal cases. The shari‘a itself remained sacred on paper, but ossified, and in real life no one heeded it after the tenth or eleventh century, CE. And since the shari‘a was a sacred law, no one could devise a new code, or even a way of resuscitating the old one.4 The attribution to the kadi of heavy involvement in corruption and susceptibility to bend rules under the pressure of the political authorities tinged the concept of kadi justice and made of it an arbitrary, primitive, and barbaric legal system, eternalized in analyses of famous western judges, and top playwrights like Bertold Brecht. Judging by the Ottoman case all this was extremely exaggerated.
That something was amiss with Weber’s theory should have been obvious with the appearance of the first studies of Ottoman law based on actual kadi court records, an honor that goes indisputably to Ronald Jennings in the late 1970s.5 But just a few years later, under the influence of American legal realism and (I would say) postmodernism in general, a new development started that gave Weber a new lease of life. This was the idea that Ottoman, Islamic, or any other law, should not be seen as the document(s) containing the theoretical law, but the actual process of bargaining between the judge and the litigants, bargaining that was often free-floating and unrelated to the contents of the law books. The judge was now seen as a negotiator between litigants, seeking to smooth over differences and keep the social harmony of the society, rather than a judge enforcing a law code. This new theory—a central feature of what is fashionably called “law and society”—is a reincarnation of course, mainly of Weber’s main argument, viz., that the kadi’s deliberations were not so much formal statements of law, but rather reflected the dynamic and contingent context in which judgment was made, although it has to be borne in mind that for Weber this was not a sign of the strength or health of Islamic law but the opposite, a clear sign of its decline and socio-political obsolescence and irrelevance.
Weber’s questions can be phrased thus:
• To what extent was formal Islamic law (the shari‘a) also the law in practice? What other sources of law were there?
(p. 478) • What was the place and role of the kadi? Did the kadi share law enforcement with other state office-holders (like the provincial governor)?
• Was the kadi’s mode of working based on arbitrariness, as suggested by Weber? And more generally, was decision-making by the kadi more or less structured or simply based on free-floating bargaining and mediation between litigants, with little or no reference to any law code?
I. Islamic Law in Practice—The Shari‘a and Other Sources of Law
My own study of the legal system of seventeenth-century Bursa and the Ottoman Empire in general was the first to deal head on with this specific problem.6 For some reason, most other studies on Ottoman law are not really interested in the shari‘a, but are in effect social histories based on kadi court records. My own interest in this topic probably harks back to my early interest in Weber in general and Weber and Islam in particular. For anyone whose starting point is Weber, interest in the shari‘a is unavoidable.
Maybe because of the distinguished place of Bursa as the focal point of Ottoman Islam and Ottoman culture in general, the study of its seventeenth-century kadi court records showed surprising and unexpected affinity between the law as practiced and the formal shari‘a. It was by no means a one to one correspondence, but nevertheless an impressive similarity, far reaching enough to undermine Weber’s claim that the shari‘a became decadent and obsolete after 1258. But even in areas of the law where divergence between the shari‘a and the law in practice existed, the law was more or less stable over time, and hence pace Weber, there was a great deal of predictability. Resort to formal shari‘a and predictability went hand in hand.
If we take as an example the all-important case of the penal code of the shari‘a, many (though not all) of the laws in this field in seventeenth-century Bursa were the shar‘i laws. The entire area of law connected with homicide was fully governed by the shari‘a. According to shari‘a manuals, if a murderer was brought to trial and his guilt proven, the next of kin of the slain person could demand retaliation, that is, the death penalty, or blood money (diyet) instead. A large number of documents from several places show that this law was fully operative in the seventeenth and eighteenth centuries. Formal shari‘a doctrines were decisive also in the extremely (p. 479) common case of the discovery of a corpse, where the killer was not known. Islamic law solved the issue by using the oath of kassama, or oath of compurgation: fifty oaths were required from people living in the vicinity that they were not the perpetrators and did not know who was. And then they had to pay the blood money of the dead person. Sometimes that person was severely wounded before dying, and occasionally he was willing to attest before a na’ib (deputy judge, usually the person sent to investigate the whereabouts of found bodies) that in case he died, none of the citizens of the neighborhood was responsible for his death, thus removing the burden on them altogether. All this legal material could be cited from Hanafi legal manuals; but in the Ottoman context it was operative in real court documents, showing again the vibrancy of the formal shari‘a four to six centuries after the end of the medieval period, when the shari‘a was supposed to have ossified and gone into practical oblivion, according to Weber.
A no less interesting issue is that of hudud, or Qur’anic punishments, also called huquq Allah (rights of God), the offences considered most severe in the Islamic law book, (an additional topic considered in my book on Bursa and some additional places). These offences were wine drinking; theft; illicit sexual relations (zina), punishable by one hundred lashes for an offender who has not been married and death by stoning for someone who has; kazf (Arabic, qadhf), or false accusation of zina (including casual curses insinuating involvement in zina); and highway robbery (entailing the death penalty if involving killing). The problem was that the onus of proof demanded in some of the cases was almost impossible to attain: illicit sex required four eye witnesses attesting to seeing the actual act of coitus, while stealing required two eyewitnesses. It is common among historians to deduce from this that the hudud were enacted just as deterrence or warning, not to be actually implemented. Whether this was actually the intention of the forefathers of Islamic law is hard to say, but it is true that in the Ottoman Empire most of the hudud were only implemented in a mild form. Besides one famous case from eighteenth-century Istanbul7 no case of stoning is known to have taken place. Lighter punishments were imposed (mainly being forced to serve as oarsmen in the Ottoman navy for a number of years). But on the other hand circumstantial evidence was admitted: known prostitutes were captured by the Bursa police with unrelated men in one house. In no case was full-fledged zina proven (or even carefully looked for), but it was assumed that illicit sex had taken place, and a discretionary punishment (ta’zir) was imposed in all these cases, conveying the idea that the infraction was a lesser offense than zina. Circumstantial evidence was also accepted in the case of theft, though again with the resulting reduced punishment of time served in the Ottoman navy. Most importantly, the crime of highway robbery became a focal point of legal development and innovation in the Ottoman period. Highway robbery by permanent (p. 480) gangs of hardened criminals was a common feature of country life in the Ottoman Empire in the seventeenth century, targeting not only merchants and travelers, but also government officials transporting tax money to Istanbul. The frequency of its occurrence called for extraordinary measures, which reflected innovations and developments in the law of highway robbery. These developments do not appear in formal shari‘a manuals. What took place on the ground was that a special legal category of criminals was defined—sai bil-fesad, or sai be fesad el-arz, “a fomentor of evil in the world,” who was in effect a repeat robber. The evidentiary requirements for this new offense were limited, thus making prosecution more successful. The only requirement was the attestation of the community leaders of a certain village or quarter, bypassing the sacred shari‘a requirement of individual proof according to shar‘i evidentiary laws. And on top of all this, this offense entailed the death penalty, even if no killing was involved. Thus, the most important hadd punishment was considerably augmented in relation to the Hanafi legal manuals, and may be said to have been applied on a wide scale. The law was no doubt closely related to shar‘i conceptions of justice and proper behavior on the roads, but in itself it was an innovation. It was also unrelated to the kanun (state law enacted by the ruler in areas where the shari‘a was judged insufficient). Was it enacted by the central government in some order that has not yet been discovered? My own feeling is that this was not the case; it was probably a customary law developed on the ground by people facing dire necessities.
Some mistake my critique of Weber, in the book of mine that is being surveyed here, as betraying a stand against legal realism. This is far from being the case: if Salmond defines legal realism as seeing “law” as the practice of the courts, then my approach is exactly that.8 Although I did not analyze individual cases in detail, none of the rules and laws that I have already spoken about were read by any kadi (or by myself) from a law book or a kanun. They are based entirely on Ottoman court records, and are nothing more than distillations of the meaning extracted from the substantial number of cases appearing in them. It is simply a fact that the laws and verdicts that transpired from this sea of documentation do not convey the idea of meaningless chaos, but rather, a coherent set of rules that show some correspondence with formal shari‘a, kanun, and customary law, with shari‘a and customary law dominant.
The main criticism that I have of this (my own) book is that not enough attention was devoted to a minute analysis of individual cases, which would have allowed a more detailed reconstruction of the modes of working of the court, checking and possibly proving the points made in the last paragraph.
Another study that is of great importance for the topic at hand (the sources of law in Ottoman Islamic courts—shari‘a, customary law, or state legislation) is Elyse (p. 481) Semerdjian’s study of illicit sexual relations in Ottoman Aleppo, published in 2005.9 Illicit sex, or zina in the parlance of Islamic law, is a major penal offence and a Qur’anic hadd, or punishment, and Semerdjian’s book is a good example of how this offence was treated in practice—was the full force of the shari‘a applied, or was a milder interpretation used instead? The main source of information is the kadi court records Aleppo, which—despite a barrage of denigration—prove yet again that they are indispensable for reconstructing the life the common people in the past. (This study, by the way, proves that it was not just the middle class who appeared in the sicills, as is often claimed, but also the lowest strata of society). So basically the book deals with the zina offence as applied in Aleppo. However, there are no cases among the materials surveyed of adultery among married couples, and the main topic discussed is prostitution.
Prostitution was rife in Ottoman Aleppo. Prostitutes were often brought to court by the people of their quarter and put on trial for being “immoral.” For the most part they were immigrants from the rural areas around the city and from rural areas in Southern Anatolia. Their numbers swelled in time of economic crisis. These are all signs that prostitutes came from the lowest strata of society.
One of the interesting aspects of prostitution is again the legal side of it. No physical punishments were imposed on the prostitutes who were prosecuted and found guilty in Aleppo’s courts. The usual punishment was simply banishment from the quarter. It is reported that when this happened prostitutes simply took their pimps and moved calmly to another quarter—it was not considered a serious punishment at all, lighter in fact than in Istanbul where prostitutes were banished to another area of the state, and were thus cut off from family and acquaintances.
It may be asked why the Ottoman government was so lenient on the crime of zina, which carries such a grievous punishment in the formal shari‘a? Judging the severity of the punishments brings to mind shirk (heresy), highway robbery, and the like. But possibly zina was singled out for a more lenient treatment. Why? Semerdjian suggests a likely explanation was that prostitution was simply unavoidable because Aleppo was a place where a large body of troops was stationed, and, like it or not, troops needed prostitutes. Displacing prostitutes from the city could probably be done, but it would surely lead to major security issues in the city in general, and for the elite in particular.
Another major contribution relevant to the topic at hand (namely, the sources of Ottoman law—shari‘a, customary law, and kanun) is Fariba Zarinebaf’s 2010 book on crime and the application of penal laws in eighteenth-century Istanbul.10 This study relies on Ottoman court records like most other legal studies in the Ottoman (p. 482) Empire, but in addition deploys two new sources, both archival in nature: one is police records and the other is registers of convicted criminals sent to serve as oarsmen on the ships of the Ottoman navy. We shall devote some attention to these methodological questions later on; our first interest here is to consider the relation between the treatment of the criminals in Istanbul’s courts and the formal shari‘a.
Most of the documents found by Zarinebaf in relation to criminal behavior concerned theft and robbery.11 These were common problems in eighteenth-century Istanbul. Thieves targeted mainly rooms in hans (inns) and odalar (bachelors’ residences, rented out by religious endowments), and stole anything they could find. But rather than being punished by the supposedly standard hadd punishment of amputation of the hand, they were sentenced instead to serve as oarsmen in the Ottoman navy for a certain period of time (usually a number of months, as apparently most oarsmen were released after that time due to petitions presented to the sultan calling for mercy). Even a short period was considered a harsh punishment, and mortality rates among rowing convicts was extremely high.
Another important topic addressed by Zarinebaf is prostitution. This provides another good opportunity to observe how the shari‘a was handled in practice in an Ottoman city. The issue of prostitution was a serious worry for the authorities in Istanbul, because it was extremely widespread, and because it was connected to wine-drinking, which was, in turn, often associated with more serious crimes, like assault and murder, which threatened to undermine public order and thus the legitimacy of the regime. So prostitution was not just a matter of enforcing the law, or the shari‘a, but also a question of law and order in the city. But of course (as was the case in Aleppo) trying to eradicate prostitution altogether was unthinkable, because such an outcome could result in more danger from soldiers, or even unruly bachelors who resided in rented rooms, as noted earlier. Thus, the government had to tread very carefully and this it certainly did: prostitution was effectively permitted in the traditional entertainment quarters of the city, in Galata and Pera, and was tolerated as long as prostitutes kept low profiles. But often prostitutes spilled over to “respectable” residential areas, which often aroused the ire of the residents, who complained to the authorities, which were then forced to take action. This is a hazy topic in Islamic law, with some jurists, notably Ibrahim al-Halabi failing even to mention the issue in his foundational treatise on Islamic jurisprudence, Multaqa al-Abhur. Formally, prostitutes should have been subjected to the law of zina. But the jurists were undecided because some claimed that by paying for the services rendered, the client assumed temporary quasi-ownership of the prostitute, making the relationship akin to concubinage. Despite this logic, most jurists pronounced prostitution to be illegal, though one treated it as full-fledged zina. Again, Ottoman fetva collections from the seventeenth and eighteenth centuries do not deal directly (p. 483) with prostitution, but anyone calling another person by names related to prostitution was liable to the hadd punishment of kazf, false accusation of zina. Hence, it remained in the area of ta’zir, discretionary punishment. I do not think that the reason was that they simply learnt to live with prostitution as an inevitable fact of life: this much could be said also of the law of zina itself, that it could hardly be enforced due to the impossible evidential requirements, yet it was consistently upheld as the sole valid law in a large number of Ottoman muftis’ fetvas throughout the seventeenth and eighteenth centuries. Part of the reason probably was the aforementioned legal similarity between prostitution and concubinage in the formal shari‘a.
An important topic related to zina and prostitution is that of punishment. Islamic law imposes the punishment of stoning for illicit sex committed by someone who is or has been married and one hundred lashes for someone who has not been married. Zarinebaf did not find evidence that these punishments were applied in Istanbul. In Zarinebaf’s materials no real case of zina (adultery, that is) surfaced, but only prostitution, a subordinate form of zina at best. The punishments meted out were a far cry from that appropriate for zina—punishments invariably involving banishment from the city, often to Bursa, sometimes to various islands in the Aegean Sea. It was not really the case that the shari‘a’s hudud were disregarded or put aside—in no case of this sort was zina in the full case provable. Consequently, just as in seventeenth-century Bursa, the issue was relegated to the somewhat gray area of ta’zir—discretionary punishment by the kadi, though formally still within the hudud.
Zarinebaf also speaks about killing (chapter 6), and this topic deserves attention here, since it is important to consider whether the actual law applied was the formal shari‘a or not. Zarinebaf claims that violent murder was on the rise in Istanbul in the eighteenth century, though she admits herself that this is an impressionistic conclusion, and that we lack hard evidence to sustain this. In any event, much violence in the city is certainly cited, much of it directed against lone women in their houses, in the streets, or in bathhouses. Many of these violence cases resulted in rape (often also involving boys and girls). Much violence and killing in Istanbul was carried out by gangs of soldiers who came from the Kasim Pasha quarter.
To conclude our discussion of Zarinebaf, the writer is to be commended for using sources other than the shari‘a records, as we certainly need diversification of sources, but nevertheless, I feel that some more effort should be spent on the documents of the kadi, that do not yet appear to have been used extensively enough.
Looking into the future, there is place for additional studies of sicills, both for socio-legal studies and for analytical studies devised to advance the understanding of the law. In fact, most of the sicill studies undertaken so far are social histories, mostly of women, with few references to the implications of the sicills for an understanding of the law. There is considerable room for legal historians to enter the field. The many faults of the sicill as a source should not dissuade us. There is no point trying to investigate the behind the scenes structure of any individual sicill, (p. 484) not because it is unimportant, but because there is no material making this possible. We should resign ourselves to the study of the sicill as it is, and bear in mind that it is the best possible source for this period of Islamic legal history.
II. The Status and Role of the Kadi
We learn from Weber that part of the so-called process of decline of the shari‘a resulted from the decadence of the role of the kadi (with less importance being assigned to him by the public and the government), the kadi’s diminished control over the judicial process, and the rise of other forces, like civil and military authorities, as authorities within the law. In any case, the status and role of the kadi within the legal framework provide historiographically important focal points from which to explore the nature of adjudication and professionalization of the judiciary.
It is clear that the kadi’s court was not the only forum where conflict resolution could take place. The kadi records of Bursa and other places show the existence of many instances where cases were resolved by mediation of muslihun, or Muslim mediators from outside of the judicial process. The kadi always accepted the compromise, though he seems to have never effected it himself. But if we concentrate on the work of the kadi himself, the first thing that we observe here is that in earlier historical periods, the kadi had competition from several competing bodies, such as the mazalim court, which dealt with criminal and other issues; and the muhtasib, which had wide authority in market affairs. None of these bodies existed in the Ottoman Empire (the muhtasib did in fact exist at least in some places, certainly with much reduced authorities). This means that the role of the kadi was formidable in the Ottoman Empire in comparison to earlier periods. Ronald Jennings has a great deal to say here, and he was the first to say it, in the late 1970s. He described the kadi as the real legal pillar of the city, eclipsing entirely the muhtasib, whereas the mazalim court did not exist at all, and the imperial divan was barely noticeable. The kadi enjoyed full and unrestricted legal authority, apparently enjoying the complete trust of the population and the imperial center.12 This general picture was fully replicated in the case of seventeenth-century Bursa.
The main competition to the kadi, in terms of judicial function, was the provincial governors (sancak beys), who were responsible for law and order, but who, most of the time, fought against highway robbers. For instance, though it is not entirely clear what the sancak bey of Kayseri did in this respect, it is doubtful (p. 485) that he was really involved with court work. His subordinate officials, mainly the sabasi (chief of police), were in charge of investigating criminal cases and arresting suspects; but they were to bring such cases to the kadi’s court immediately, and Jennings shows that in a number of cases that is in fact what they did. Officials of the sancak bey were present in some criminal cases dealt with by the kadi, but what they did there is not at all clear. Furthermore, in several cases citizens sued the sancak bey himself (for example, demanding debts due), and the kadi dealt with such cases unexceptionally.
Important information on the relations between the provincial governor and the kadi in the context of adjudication is supplied by Leslie Peirce’s book on sixteenth-century Ayntab, to be surveyed more extensively later. As noted, the book deals with among other things the relations between the provincial governor and the kadi, and reaches the conclusion that Sultan Suleyman I (1520–66) was seeking to introduce a reform that would drastically reduce the role of the governor and augment the role of the kadi. The policy was in fact to render adjudication by the governor as illegal altogether. This policy seems to have borne fruit. There seems to be a direct line between this study and between the finding of Jennings and Gerber, cited earlier, which indicated that a change of this nature did indeed take place when we move from the sixteenth century to the seventeenth and eighteenth centuries. But a divergent view was put forward by Michael Ursinus, who utilized a small collection of complaints sent to the provincial governor of Rumeli (Ottoman Balkans) toward the end of the eighteenth century.13 One of Ursinus’ conclusions is that though the kadi was supreme in the matter of adjudication, many cases were judged by kadis in provincial offices, in the presence of the governor, as opposed to a separate courthouse, which constituted something less than full-fledged autonomous proceedings, in as much as the governor could exert pressure on the kadi. But this conclusion seems to be contradicted by the views of other researchers. Had the governor contributed anything substantial to the process, then Ursinus’ point would be convincing. But as long as the trial itself was procedurally in line with regular Hanafism, some objections may be raised. It is true that Peirce claimed Suleyman I ordained that a shari‘a trial is illegal if not carried out in a formal building designated as a court, but Michael Winter has shown that the court of Damascus in Ottoman times was not in a fixed location, and the court in Ottoman Jerusalem is well-known to have always resided in a madrasa.
An exceptional case is Zarinebaf’s study on eighteenth-century Istanbul. She claims that in Istanbul the kadi had little authority to judge criminal cases, and his role was limited mainly to investigating the case and suggesting punishments to the central government. Punishment for theft, for example, was mainly imposed by police officers. It may be thought that in Istanbul the government wished to deal (p. 486) with crime more resolutely than in other places, because in Istanbul street crime might escalate to become an issue jeopardizing the security of the entire government. In any event, and to revert to the role of police officers in law enforcement, the process was probably not a proper trial, since it seems that most theft cases came to be decided on as perpetrators were apprehended in the act, and immediately admitted their guilt to avoid the harsher punishments they might suffer if they did not plead guilty. But this case is not yet entirely clear: throughout the book there are quite a few kadi court trials reported. So the kadi did have some authority to judge, possibly with some limitations, the nature of which is not yet entirely clear. In any event, it is suggested that alternative adjudication was carried out by the Imperial Ottoman Council, a theoretical claim, since no supporting evidence is supplied on this. To my mind, the last word on the kadi’s authority in Istanbul is yet to be decided.
Jennings devotes a great deal of attention to professional witnesses (‘udul—those witnesses who did not actually participate in the legal process, but signed their names at the bottom of the kadi’s protocol, as if to approve its legality). The issue is relevant to our discussion, in as much as the professional witnesses also detracted somewhat from the authority of the kadi. Jennings was the first to draw attention to this topic. He shows that the role of the ‘udul in the Ottoman court was considerably different from the situation in medieval Islam. The latter were usually part of a formal list of witnesses, well-known to the kadi, who likely knew all of them personally, because he would serve in the locality for a long period of time. Witnesses in medieval Islam fulfilled all sorts of functions, notably as notaries, that is, people who knew how to phrase petitions to be presented to the court, or those whom the kadi would send to verify the whereabouts of bodies found in deserted places in suspicious circumstances. But also, they were the most trustworthy source of information when the kadi needed socio-legal information on individuals, such as whether a person was trustworthy enough for purposes of giving acceptable testimony.
In the Ottoman period, witnesses in places like Kayseri (and this was again, exactly the same in Bursa) were more like ordinary citizens with reasonable reputations who happened to be in the courthouse on that particular day, and were asked to serve as professional witnesses (called in the Ottoman documents shuhud el-hal, never ‘udul). The number of these witnesses in both Bursa and Kayseri was very large, and there is no evidence that many of them carried out this role repeatedly. There is also no evidence that they fulfilled other legal functions for the court. At least part of the reason for this is quite clear—the Ottoman kadi served in any one place for no more than one or two years, and was not in fact expected to develop “friendly” relations with the local elite—a clear temptation for corruption.
However, Hulya Canbakal’s recent study of professional witnesses in the town of Ayntab in the eighteenth century shows that the professional witnesses in that town (p. 487) were not part of a random group, but members of the elite families of Ayntab, an elite that controlled Ayntab economically and politically.14 Professional witnesses in Ayntab appeared in court many times, and were thus something else altogether than the diverse group of citizens that we have seen in Kayseri and Bursa. What might have been the reason for the difference? Notably, eighteenth-century Ayntab was geographically on the Ottoman periphery, enjoyed considerable local autonomy, and was controlled by an entrenched local elite. Maybe the difference between the two patterns had to do with distance from Istanbul and from major trade arteries, and similar factors.
III. Free-floating Bargaining or Structured Law Enforcement
As noted earlier, Weber claimed that the Muslim judge was not truly directed by any code of law in his decisions, but was either acting from expediency, or, at best, from some sort of cultural intuition. I claimed in my book that this really reduced the kadi to a mere mediator between kinship groups to avoid major conflagration. Surprisingly, this Weberian approach has received a new lease of life in recent years, the prime example in this field being Leslie Peirce’s book on sixteenth-century Ayntab. Peirce seems to be an enthusiast of the law-and-society approach to Ottoman law; I myself am much less enthusiastic about the applicability of this approach to Ottoman law and Islamic law generally, both because Islamic law, being considered as coming down from the revelation, seems to me less amenable to free-ranging manipulations of the law than expressly secular laws, and because the Ottomans had a clear-cut approach to move kadis around their state every year or two specifically in order to prevent their being able to create connections with local groups, thereby serving their interests rather than those of the state. Thus, we have here two divergent opinions about an important aspect of Ottoman law, which only future research will elucidate further.
Peirce’s book revolves around the topic of women and the law, but within this, there is an emphasis on women and the penal law, and thus a focus on the kadi, which makes it pertinent to the present survey. Peirce is interested mainly in the lives of lower class women, trying to demonstrate that despite their patriarchal law and society, nevertheless they were able to marshal their personal resources to (p. 488) withstand societal pressure and protect their own interests. The core of the study is the story of three women who prevailed amidst considerable impediment. More within the legal domain, Peirce claims that the Ottoman court of Ayntab did not work the way former Ottoman legal historians claimed it did. According to Peirce, the Ottoman kadi did not in fact enforce a body of laws known as Ottoman law, since such a body of law did not really exist. By emphasizing the specific (and variable) outcomes of litigation, Peirce claims that Ottoman law was rather the product of negotiation and deliberations between kadis and litigants: “Legal codes … were of course critical in shaping the legal life of communities like Aintab [sic], but it was only in local interpretation that formal rules acquired vitality and meaning. The chapters that follow argue that it was the people of Aintab who, negotiating with and through the court, were responsible for that interpretation.”15 Space limitations prevent me from surveying the book in detail here, thus analyzing the section on killing and murder will have to do, particularly since Peirce claims explicitly that the thesis of her book is particularly salient for this area. Talking about the five murder cases, she says that they are the most complicated in the book, “and perhaps the record’s most vivid demonstration that the study of legal culture needs to be grounded in the dialectic between action and prescription.”16 Careful analysis of these murder cases seems to indicate Peirce’s view that every kind of bargaining that takes place in the process of trial leads to an outcome which is unique to that particular trial, hence an outcome of a unique process of interpretation and an interplay between action and prescription. In the first case a man was attacked while sleeping on his roof and killed. The heirs of the deceased were awarded compensation (diyet) of 46,000 akce, after some bargaining between the parties.17 Intense negotiation is also evident in the other murder cases, and obviously, this negotiation is relevant to the outcome. In that sense Peirce is clearly right in concluding all these cases by saying that “Each of these cases is remarkable in demonstrating a complex mobilization of legal resources that is not entirely predictable from prescriptive legal text described earlier.”18 The point Peirce is making here is that those litigants with more resources are likely to secure a better outcome, like a better paid lawyer hired by a rich litigant in our own times. But Peirce’s approach is less convincing when it comes to the law itself, which in all the cases she cites remains unaffected, while every important case in nineteenth-century America changed the law in such a way that no lawyer could come to court without citing the new emendation. In Ottoman and Islamic law this never happened. The law remained exactly as it had been before. At the same time, the bargaining that obviously took place between the parties did not necessarily involve the kadi; in no document (p. 489) cited by Peirce (or seen by this writer elsewhere) is there any sign that the kadi was himself involved in the bargaining that took place either in and around the case, or in and around the court. Also, there is no sign that kadis were deciding cases without reference to the law, as is claimed.
Thus, Peirce has done an important job of showing how a minute analysis of kadi court records can yield fruitful results by showing that people with greater access to legal resources can sway the court’s decision in their favor, thereby affecting the law at least in an ad hoc manner. But judging by the studies written so far, this approach may be limited by the fact that the core of the Ottoman–Islamic legal system may have been more resilient and less malleable than Peirce’s approach suggests.
IV. Summary and Conclusion
Following the lead of Max Weber, I have dealt with Ottoman law under three headings: in the first section I was interested in gauging the extent to which the formal shari‘a was actually practiced in the Ottoman Empire, a society that certainly prided itself for being a shari‘a enforcing society. I pursued this question mainly via a discussion of two legal monographs that were published in recent years: namely, Semerdjian’s study of women in Ottoman Aleppo and Zarinebaf’s study of women in eighteenth-century Istanbul. Zarinebaf surveys the scene of crime and punishment in eighteenth-century Istanbul. Crime is said to have been widespread, and included theft, mainly of items from rooms in inns and the like; rape, particularly involving women living alone; prostitution; unlawful killing, often as a consequence of brawls, etc. What is interesting from the point of view of this study is that while many of these cases were liable to the hudud punishments, these were in fact never inflicted and the punishments used were much lighter. Prostitution in particular was treated lightly, mainly by banishment from the city, when it could have entailed the death penalty if treated in the harsh manner required by the theoretical law. Other crimes were punishable by the requirement to work as an oarsman in the Ottoman navy for a number of years, often shortened to a number of months. A similar phenomenon is evident in Semerdjian’s study on Aleppo: prostitutes were not at all harshly treated by the courts, and were simply banished to another quarter of town. Thus the hudud were applied only leniently, and one is left wondering why? Vogel’s article on siyasa shar’iyya seems to provide a good explanation—the doctrine became widespread at the end of classical Islam that a shari‘a enforcing Islamic government, enjoying a good reputation as such, could in fact implement (p. 490) the shari‘a selectively and still keep its reputation—if that was in the interest of its government.19
The second section of this chapter dealt with the role and status of the kadi. The main finding here was that although the kadi suffered from competition from many directions, notably provincial governors, the kadi nevertheless kept a near monopoly on adjudication. This was a direct outcome of government policy, because the central Ottoman government was well aware of, and in fact obsessed by, the powers of high-level bureaucrats and the dangers fraught in their authority over the peasantry and their ability to extract illegal taxes from them. Thus, the Ottoman kadi by no means lost power and control as Weber suggested. Nor did the kadi become marginal or obsolete as was formerly suggested. On the contrary, his position grew in importance, without any connection to religion or religiosity, and he now fulfilled many “civil” and administrative functions, in addition to enjoying near monopoly of adjudication.
The third section of this chapter dealt with a question subject to an ongoing debate, and on which no definitive conclusion can yet be reached. It is the question of whether the adjudication process that took place in the kadi’s court was based on and tied to law codes and fundamental rules directing everything that went on there, or whether the process was free-floating, subject to debates and bargaining between the parties and the judges. Weber believed that at the beginning of Islamic history the name of the game was structured order, but that as the gates of ijtihad were closed, there was nothing to guide judges in new cases, and then intuition came to rule the process. Two lines of research are observable within this area of research. Leslie Peirce’s study from 2003 devoted particular attention to showing how different pools of legal resources (taking the term “legal resources” in the widest possible sense) have helped litigants to reach outcomes better for themselves than might have been the situation with less legal resources. In this sense they were able to mold the law to work better for them than might have been the case otherwise. It makes sense to claim that in such cases the law was interpreted in a unique way. But in my 1994 book on Ottoman law I looked at two other aspects of the same general topic: I was interested to find out whether the kadi himself might engage with the litigants in ways that are contrary to formal shari‘a (did he, for example, choose arbitrarily who would be charged with giving the oath that would allow him to win the case?). I was also interested to find out whether the kadi handed down legal decisions that were simply an outcome of bargaining, unrelated to the formal shari‘a. To the best of my understanding and knowledge, in these two important areas Ottoman law was much less prone to amorphous mode of action than in the areas discussed by Peirce. But either way, this is a major question that awaits the attention of future researchers.
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(1) Wael B. Hallaq, Shari’a: Theory, Practice, Transformations (Cambridge: Cambridge University Press, 2009).
(2) On American legal realism see Jerome Frank, Law and the Modern Mind (New York: Anchor Books, 1963).
(3) Max Weber, Economy and Society, 2 vols. (New York: Bedminster Press, 1968), 795, 845, 976, 978, 1395.
(5) Ronald C. Jennings, “Kadi, Court and Legal Procedure in 17th Century Ottoman Kayseri,” Studia Islamica 48 (1978): 133–172; Ronald C. Jennings, “Limitations on the Judicial Powers of the Kadi in 17th Century Ottoman Kayseri,” Studia Islamica 50 (1979): 151–184.
(6) Haim Gerber, State, Society and Law in Islam: Ottoman Law in Comparative Perspective (Albany: State University of New York Press, 1994).
(7) Madeline Zilfi, The Ottoman Ulema (Chicago: Bibliotheca Islamica, 1988), 202f.
(8) See J. Salmond and P.J. Fitzgerald, Salmond on Jurisprudence 12th edn. (London: Sweet & Maxwell, 1966), 25–43.
(9) Elyse Semerdjian, Off the Straight Path: Law and Community in Ottoman Aleppo (Syracuse: Syracuse University Press, 2005).
(10) Fariba Zarinebaf, Crime and Punishment in Istanbul, 1700–1800 (Berkeley and Los Angeles: University of California Press, 2010).
(11) Zarinebaf, Crime and Punishment in Istanbul, chapter 4.
(12) Jennings, “Kadi, Court and Legal Procedure”; Jennings, “Limitations.”
(13) Michael Ursinus, Grievance Administration (sikayet) in an Ottoman Province (London: Routledge Curzon, 2005).
(14) Hulya Canbakal, Society and Politics in an Ottoman Town (Leiden: Brill, 2007).
(15) Leslie Peirce, Morality Tales: Law and Gender in the Ottoman Court of Aintab (Berkeley: University of California Press, 2003), 1.
(19) Frank Vogel, “Siyāsa,” in Encyclopaedia of Islam, eds. P. Bearman, Th. Bianquis, C.E. Bosworth, E. van Donzel, W.P. Heinrichs 2nd edn. (Brill Online, 2014).