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The Innovations in the Ottoman Legal Administration: the 16Th Century Between Theory and Practice

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The Innovations in the Ottoman Legal Administration: the 16Th Century Between Theory and Practice The American University in Cairo School of Humanities and Social Sciences The Innovations in The Ottoman Legal Administration: The 16th Century Between Theory and Practice A Thesis Submitted to The Department of Arab and Islamic Civilizations In Partial Fulfillment of the Requirements For the Degree of Master of Arts By Honey Nasser El-Moghazi Under the supervision of Dr. Mohamed Serag December /2017 To my parents, Nasser and Klinaz, to my husband, Ahmed Ghobashy, and to my son 1 ACKNOWLEDGMENTS I would like to first express my gratitude to my parents for having always been my support system and for their selfless love and sacrifices. I owe special thanks to my husband for always believing in me and pushing me forward. I’m grateful for his understanding and patience, for always helping me put things into perspective, and for being my guidance and best example to follow. To Sandy, my sister, thank you for making the last days of this journey memorable and for your support in finalizing this study. I would like to also thank Dr. Nelly Hanna for being a true mentor, for her intellectual and academic support, for her diligence with her students, and for her continuous guidance and help in making this study possible. I also owe thanks to Dr. Mohamed Serag, Dr. Hoda El Saadi, and Dr. Richard Tutwiler for their appreciated insights and aiding me in this study. I am also grateful to Marwa for her limitless help, support, and patience, and to my dear colleagues Menna and Yomna for sharing with me every step of the way. 2 ABSTRACT The purpose of this study is to bring to light some of the most formative innovations in the Ottoman legal administration that unfolded by the 16th Century. It serves to macroscopically trace back some of the major developments that led to the crystallization of the Ottoman legal system and the state’s administration of justice. This study thus aims to demonstrate the process of the making of Ottoman law through the early attempts of codifying a comprehensive legal code together with the creation of a unique form of “Ottoman Hanafism.” Furthermore, it aims to examine the role of some of the state actors as well as the judiciary in giving rise to a bureaucratic system of administration in attempting to establish standardization and uniformity throughout the empire and in bringing in line all of the empire’s provinces. 3 Figure 1 4 CONTENTS ACKNOWLEDGMENTS ................................................................................................. 2 INTRODUCTION ............................................................................................................. 6 CHAPTER 1: THE OTTOMAN LAW-MAKING ....................................................... 16 I. The Official Madhhab: The Hanafi School of Law .............................................................. 16 The Madhhab: From Mamluk to Ottoman .............................................................................. 22 II. Kanun As Imperial Law ............................................................................................................... 29 The Kanun-Shari’a Discourse .................................................................................................... 40 CHAPTER 2: THE AGENCIES OF THE STATE ...................................................... 46 I. The Sultan ........................................................................................................................................... 46 The Image of Justice ....................................................................................................................... 54 Fratricide and Siyaset Punishments ......................................................................................... 57 II. The Imperial Divan (Divan-ı Hümâyûn) ................................................................................ 63 Structure and Membership of the Imperial Divan ................................................................ 67 The Functions of the Imperial Divan and the Institution of Petitioning ....................... 74 CHAPTER 3: THE JUDICIARY .................................................................................. 80 I. The Seyhulislam (The Mufti of Istanbul) ................................................................................. 81 Muftiship: From Mamluk to Ottoman and the Evolution of the Seyhulislm ............... 84 Ebu’s-su’ud’s Attempts to Reconcile the Kanun with the Shari’a: The Cash Waqf Controversy and the Mu’amalat .............................................................................................. 100 The Question of Judicial Corruption ..................................................................................... 116 CHAPTER 4: LAW IN PRACTICE: REGULATING MORALITY ......................... 121 Marriage Fees ............................................................................................................................... 124 Zina (Fornication) ........................................................................................................................ 130 Prostitution ..................................................................................................................................... 137 Conclusion ...................................................................................................................... 142 Bibliography ................................................................................................................... 145 5 INTRODUCTION Various aspects of the bureaucratic structure of the Ottoman administration after the conquests of the 15th and 16th Centuries reveal a number of factors that are fundamental to the understanding of the broader developments of the Ottoman legal system, the introduction of a series of new policies, and the implications those developments had on the way society functioned. The incorporation of new territories and the extension of the empire to new frontiers meant that the empire now encompassed different forms of legal systems, different religious traditions, different cultural practices, as well as other forms of administering societies. With this complex legal and cultural landscape, the Ottoman authorities opted for bringing all its provinces in line with one another through a bureaucratic process of standardizing the system of administration throughout the empire. This also called for attempting to create a powerful central authority that would regulate the core-periphery relations and how the localities were administered. Furthermore, the Ottoman state intended to construct a judicial system that would serve as a tool of power assertion and would “Ottomanize” the way justice was administered. The Ottoman innovations took a number of forms that will be examined throughout the next few chapters and fitted within the overall framework. What will be briefly mentioned here in a non-chronological order to serve the introductory purposes of this study are the wider developments of the administrative legal structure that were aimed at creating a uniform system of authority and an Ottomanized form of administering justice. Haim Gerber, Guy Burak, and Nelly Hanna draw attention to some of the most fundamental and novel administrative policies that were implemented by the Ottoman authorities. The most foundational of those developments to the Ottoman legal 6 system was appointing the Hanafi School of Law as the official imperial madhhab of the empire.1 This meant that the legal opinions and rulings that were to be practiced were limited to what Rudolph Peters refers to as a distinctive form of “Ottoman Hanafism.”2 Other important developments that are closely interconnected with the rise of an official madhhab is the evolution of the religious institution, which occasioned the appearance of an imperial learned hierarchy, the appointment of muftis by the imperial authorities, and the appearance of the position of the grand mufti (seyhulislam) whose role was to oversee the entire religious institution.3 This also meant that he became the institution’s “chief judicial and scholarly authority,”4 who was responsible for all its nominations.5 The position of the Sultan by the 16th Century also represented an integral component of the legal structure of the Ottoman central administration. The definition of justice in the golden age of Suleyman al-Kanuni went hand in hand with the notion of the ideal ruler.6 The Sutlan came to be regarded as the embodiment of justice for several reasons: the power vested in him meant that he ensured the welfare of society by sustaining a stable powerful central authority;7 the collections of legal codes and firmans decreed by Sultan Suleyman further idealized him as the “Lawgiver;” and the wide discretion he exercised when it came to executing siyaset punishments was maintained as 1 Burak, Guy. The Second Formation of Islamic Law: The Hanafi School in the Early Modern Ottoman Empire. Cambridge: Cambridge University Press, 2015. 2 Peters, Rudolph. “What Does it Mean to Be an Official Madhhab? Hanafism and the Ottoman Empire,” in The Islamic School of Law: Evolution, Devolution, and Progress. Eds. Peri Baerman, Rudolph Peters, and Frank E. Vogel. Cambridge MA: Harvard University Press, 2005, pp. 147-158. 3 Burak, The Second Formation of Islamic Law, 11 4 Ibid. 5 Gerber, Haim, Islamic Law and Culture, 1600-1840. Leiden: Boston, 1999, p. 30. 6 Yilmaz, Mehmet S. “Crime and Punishment in the Imperial Historiography of Suleyman the Magnificent: An Evaluation
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