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Forms and institutions of justice

Introduction

Yavuz Aykan et Işık Tamdoğan

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1This volume has emerged as an outcome of a workshop organized at the French Institute of Anatolian Studies (IFEA) on January 6-7, 2012, in Istanbul. At the outset we grappled with the following question: What were the multiple actors and normative sources that enabled the historians to talk about ‘justice’ across different cultural and historical geographies under the rule of the Ottoman dynasty? Our concern was in part to question the unitary conception of an ‘Ottoman Justice’ and the legal and procedural dominance accorded the kadi in Ottoman historiography. We welcomed papers that promised to discuss legal doctrine and procedure apart from strictly religious categorization. Except for sessions about court material concerning non-Muslims and women, the thrust of the workshop was to explore the relations between the multiple institutions (kadı, vâli and mufti) and plural sources of law (custom, fiqh, arbitration, kanun, siyâsa, ecclesiastical rulings and amicable settlements). This highlighted the articulation of plural sources of law and the interaction of distinct institutions and legal procedures in what Ottoman historiography often characterized as a singular ‘Muslim’ or ‘Islamic justice’.

  • 1 Among the studies that have become classics are the following: Ronald C. Jennings (1979). “Kadi, Co (...)
  • 2 Uriel Heyd (1973). Studies in Old Ottoman Criminal Law, Oxford, Clarendon Press; Ronald C. Jennings (...)
  • 3 Michael Ursinus (2010). “Local Patmians in their Quest for Justice: Eighteenth-Century Examples of (...)
  • 4 Engin Deniz Akarlı (2006). “Law in the Market Place: Istanbul, 1730-1840,” in Muhammad Khalid Masud (...)

2This said, the body of available historiography remains a source of intellectual inspiration. Beyond the depth and the richness of the studies charting the operations of the kadı courts at provincial level1, the weight of the provincial governor in the legal sphere had already attracted the attention of historians such as Uriel Heyd, Ronald Jennings, Abdul Karim Rafeq and Michael Ursinus.2 Michael Ursinus, Nicolas Vatin and Gilles Veinstein have unraveled the role of the fleet admiral (kapudan paşa) in the process of justice making who took on a role akin to that of a provincial governor on the mainland, enjoying an administrative and executive power. The geographical particularities of each region had a role in shaping not only the legal structure but also the titles of officials.3 Engin Deniz Akarlı’s studies highlighted the interplay amongst the ‘custom’, social practices and legal regulations.4

  • 5 Betül Başaran (2014). Selim III, Social Control and Policing in Istanbul at the End of the Eighteen (...)
  • 6 Yavuz Aykan (2016). Rendre la justice à Amid : procédures, acteurs et doctrines dans le contexte ot (...)
  • 7 Guy Burak’s work has revealed the constitution of an Ottoman Hanafi canon in the early modern perio (...)

3Since we organized the workshop, a new generation of scholars has peered into the multiplicity of the actors and the institutions of Ottoman legal system, many addressing questions parallel to our own. A good deal of research has been carried out on law and public order.5 These studies document the complexity of the legal devices, actors, and discourses deployed in Ottoman society in different times and spaces. Another vein of this new historiography has focused on the complexity of Ottoman legal structures at the provincial level with scholars revealing the interplay of the provincial governor, the kadı and the mufti in the operative field of law.6 The doctrinal basis of the Ottoman law and the role played by the provincial muftis (kenar müftileri) in the litigation process has also been at the center of the new research.7

4The articles forming the present volume aim to contribute to this rich and evolving historiography. As the title of the volume suggests, “forms” and “institutions” of justice are a common thread in the contributions. Each article concentrates on a specific historical moment and context in order to chart the articulation of different forms of Ottoman justice. Needless to say, our aim is not to generalize the picture drawn by the contributors of this volume but rather to give a brief sketch of the multiple forms and institutions of Ottoman justice incarnated in a given historical space and time.

5A couple of sentences are due in order to clarify our usage of the word “action”. Here, the word action does not refer solely to the daily practices of social actors, isolated from the normative sphere. On the contrary, the institutions and norms that are in constant dialogue with social groups and individuals also inform our understanding of the word “action”. As such, it is the inter-articulated nature of the spheres of the social and the legal that forms the backbone of the present volume.

  • 8 Luc Boltanski and Laurent Thévenot (1991). De la justification. Les économies de la grandeur, Paris (...)

6What were the sources referenced through which individuals and institutions justified their actions vis-à-vis the law? We argue that Ottoman justice was composed of “multiple regimes of justification8” that together constituted the legal system. As Işık Tamdoğan’s article in this volume suggests, individuals and social groups played their part in this justification regime, be it as witnesses before the judge or as punishers outside of the court. The sources of legitimacy for lynching or denunciation had their roots in both sharia and kanun, articulated in terms of the notion of “collective responsibility”. At a different level, Nil Tekgül’s contribution to this volume demonstrates clearly how the executive power of the provincial governor (vâli) was also legitimized by these two normative sources. In other words, it was through sharia and kanun that the Ottoman provincial Councils gained their legitimacy. The same goes for the article by Alp Yücel Kaya. Although the müvellâ as a legal agent had its roots in sharia, in the 19th-century context this figure became an important agent during the process of the modernization of the Ottoman legal apparatuses.

  • 9 Baber Johansen (2004). “The Relationship between the Constitution, the Sharî’a and the Fiqh: The Ju (...)
  • 10 Najwa al-Qattan (1999). “Dhimmis in the Muslim Court: Legal Autonomy and Religious Discrimination,” (...)

7An Islamic polity was first and foremost a “political community9” governed by Muslim fiqh. The constitution of this community was the central preoccupation of the thinkers of fiqh. In this sense, the institutions constructed by fiqh transcended confessional difference so as to make possible the shaping of the abovementioned political community. In this context, the legal court was only one of these institutions.10 One article specifically tackles this question. Panagiotis Krokidas’ contribution on “Love and Punishment in Crete” displays the collaboration of the Christian church with the state authorities in legal process in the context of the newly established Councils (meclis) under Muhammed Ali (d. 1849). In the same period, but in another historical setting (Aleppo), Zouhair Ghazzal charts how Christians and Jews acted as the representatives of the non-Muslim community in their capacity as members of the Council. According to Ghazzal, the Council represented an arena where the Islamic and administrative rules converged. The collaboration between different sources of law in the Islamic political community attests to the interaction of multiple regimes of justification that also make it possible for the historian to transcend a Muslim/non-Muslim binary.

  • 11 Daniel Lord Smail and Shryock Andrew (2013). “History and the ‘Pre’”, The American Historical Revie (...)

8The problem of historicity and change in the ‘idea of law’ over time forms another common thread of the contributions in this volume. The contributions by Panagiotis Krokidas, Nil Tekgül and Zouhair Ghazzal can be read through the lens of the transformation of the Council of the provincial governor into the local Councils in the 19th-century. Martha Mundy’s reading of the two epistles penned by Ibn ‘Abidin (d. 1836) relocates the 19th-century fiqh debates within the larger Hanafi intellectual tradition of the time. As Mundy argues, contrary to the modern Tanzimat ethos where the idea of law transcends society, the two epistles reveal a tripartite legitimate normativity, articulated in the doctrinal tradition, popular practice, and state regulation. Finally, Yavuz Aykan’s contribution traces the longue durée historical process through which the Hanafi legal doctrine evolved. The historical accumulation of early modern legal doctrine partly paved the way for the drafting of the Mecelle in the 19th century. As such, whether in legal doctrine or in institutions, both continuity and rupture appear to be inherent to the empire’s multiple regimes of justification. This picture blurs the classical periodization of the empire’s lifecycle in the historiography that is generally depicted as an “advancing wave of historical time11”.

9Implicit in the contributions in this volume is the prominence of the historical geographies that the imperial space encompassed. Without treating these geographies as isolated entities, the articles forming the volume serve to create dialogue between these historical regions, notably with regard to the different ways that multiple regimes of justification are deployed within them. Such a dialogue, overall, could lead to future historiographical reflection reconnecting the far corners of Ottoman justice divided subsequently by nation-state borders and nationalist historiographies. From Transoxiana through the lands of Rum to Greater Syria, such an approach would allow the historian to de-compartmentalize the linguistic and “ethnic” components of the Ottoman polity in historiography.

Notes

1 Among the studies that have become classics are the following: Ronald C. Jennings (1979). “Kadi, Court and Legal Procedure in 17th Century Ottoman Kayseri,” Studia Islamica 50, pp. 133–172. DOI: 10.2307/1595357; Abdul-Karim Rafeq (1973). “Les registres des tribunaux de Damas comme source pour l’histoire de la Syrie,” Bulletin d’Études Orientales 26, pp. 219-226. URL: http://www.jstor.org/stable/41603351; Abraham Marcus (1989). The Middle East on the Eve of Modernity: Aleppo in the Eighteenth Century, New York, Columbia University Press; Haim Gerber (1994). State, Society and Law in Islam: Ottoman Law in Comparative Perspective, Albany, State University of New York Press; Brigitte Marino (1997). Le faubourg du Mīdān à Damas à l’époque ottomane. Espace urbain, société et habitat (1742-1830), Damas, Institut français de Damas. DOI: 10.4000/books.ifpo.3830; Leslie Peirce (2003). Morality Tales: Law and Gender in the Ottoman Court of Aintab, Berkeley, University of California Press; Boğaç Ergene (2003). Local Court, Provincial Society and Justice in the Ottoman Empire: Legal Practice and Dispute Resolution in Çankırı and Kastamonu (1652–1744), Leiden, Brill; Nicolas Michel (2005). “Registres de cadis d’Égypte (1743–1744) et notariat de Provence, pertinence d’une méthodologie comparative”, in Gabriel Audisio (ed.) Historien et l’activité notariale : Provence, Vénétie, Egypte XVe et XVIIIe siècles, Toulouse, Presses Universitaires du Mirail, pp. 225–250; 
Iris Agmon (2006). Family and Court: Legal Culture and Modernity in Late Ottoman Palestine, New York, Syracuse University Press; Hülya Canbakal (2007). Society and Politics in an Ottoman Town: ‘Ayntab in the 17th Century, Leiden, Brill. See also the following unpublished Ph.D. dissertations: Najwa al-Qattan (1996). Dhimmis in the Muslim Court: Documenting Justice in Ottoman Damascus 1775–186, Harvard University, Boston; Işık Tamdoğan (1998). Les modalités de l’urbanité dans une ville ottomane : Les habitants d’Adana au 18e siècle d’après les registres des cadis, Paris, École des Hautes Études en Sciences Sociales.

2 Uriel Heyd (1973). Studies in Old Ottoman Criminal Law, Oxford, Clarendon Press; Ronald C. Jennings (1979). “Limitations of the judicial powers of the Kadi in 17th century Ottoman Kayseri”, Studia Islamica 50, pp. 151–184. DOI: 10.2307/1595562; Abdul-Karim Rafeq (1966). The Province of Damascus 1723–1783, Khayats, Beirut; Michael Ursinus (2005). Grievance Administration (şikayet) in an Ottoman Province: The Kaymakam of Rumelia’s Record Book of Complaints of 1781–1783, London, Routledge.

3 Michael Ursinus (2010). “Local Patmians in their Quest for Justice: Eighteenth-Century Examples of Petitions Submitted to the Kapudan Paşa,” in Les archives de l’insularité ottomane: documents de travail du CETOBAC no1, pp. 20–23. URL: http://cetobac.ehess.fr/docannexe/file/1353/les_archives_de_l_insularite_ottomane.pdf; Nicolas Vatin, Gilles Veinstein (2010). “Les documents émis par le kapûdân paşa dans le fonds ottoman de Patmos,” Les archives de l’insularité ottomane: documents de travail du CETOBAC no1, pp.13–20. URL: http://cetobac.ehess.fr/docannexe/file/1353/les_archives_de_l_insularite_ottomane.pdf; Nicolas Vatin (2001). “Note préliminaire au catalogage du fonds ottoman des archives du monastère de Saint-Jean à Patmos,” Turcica XXXIII, pp. 333-337. DOI: 10.2143/TURC.33.0.870.

4 Engin Deniz Akarlı (2006). “Law in the Market Place: Istanbul, 1730-1840,” in Muhammad Khalid Masud, Rudolph Peters and David S. Powers (eds.), Dispensing Justice in Islam, Leiden, Brill, pp. 245-270.

5 Betül Başaran (2014). Selim III, Social Control and Policing in Istanbul at the End of the Eighteenth Century, Leiden, Brill; Noémi Levy-Aksu (2013). Ordre et désordres dans l’Istanbul ottomane (1879-1909) : De l’État au quartier, Paris, Karthala; Başak Tuğ (2017). Politics of Honor in Ottoman Anatolia, Leiden, Brill.

6 Yavuz Aykan (2016). Rendre la justice à Amid : procédures, acteurs et doctrines dans le contexte ottoman du XVIIIe siècle, Leiden, Brill; James E. Baldwin (2016). Islamic Law and Empire in Ottoman Cairo, Edinburgh, Edinburgh University Press.

7 Guy Burak’s work has revealed the constitution of an Ottoman Hanafi canon in the early modern period. Guy Burak (2014). The Second Formation of Islamic Law: The Hanafi School in the Early Modern Ottoman Empire, Cambridge, Cambridge University Press. The role of the provincial muftis and their fatwas in the litigation processes is analyzed in Yavuz Aykan’s Rendre la justice à Amid. See also the author’s contribution in this volume. Selma Zečević’s work represents the precursor of the studies on the provincial muftis. See Selma Zečević (2007). “Missing Husbands, Waiting Wives, Bosnian Muftis: Fatwa Texts and the Interpretation of Gendered Presences and Absences in Late Ottoman Bosnia”, in Amila Buturović and Irvin Cemil Schick (eds.), Women in the Ottoman Balkans: Gender, Culture and History, London, I. B. Tauris, pp. 335–360.

8 Luc Boltanski and Laurent Thévenot (1991). De la justification. Les économies de la grandeur, Paris, Gallimard.

9 Baber Johansen (2004). “The Relationship between the Constitution, the Sharî’a and the Fiqh: The Jurisprudence of Egypt’s Supreme Constitutional Court”, Zeitschrift für Auslaendisches öffentliches Recht und Völkerrecht 64, pp. 881-896. URL: http://www.zaoerv.de/64_2004/64_2004_4_a_881_896.pdf.

10 Najwa al-Qattan (1999). “Dhimmis in the Muslim Court: Legal Autonomy and Religious Discrimination,” International Journal of Middle East Studies 31:3, pp. 429-444. URL: http://www.jstor.org/stable/176219.

11 Daniel Lord Smail and Shryock Andrew (2013). “History and the ‘Pre’”, The American Historical Review 118:3, pp. 709–737. DOI: 10.1093/ahr/118.3.709.

Auteurs

Université Paris 1 (Panthéon-Sorbonne) Department of History (IHMC-UMR 8066)

Centre national de la recherche scientifique (CNRS/CETOBAC-Paris)

© Institut français d’études anatoliennes, 2018

Conditions d’utilisation : http://www.openedition.org/6540

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