Shariʻa Courts in Bosnia and Herzegovina

- On March 5, 1946, the authorities of socialist Yugoslavia abolished the Shariʻa courts in Bosnia and Herzegovina. This watershed mo

ment marked the end of centuries of the application of Islamic law Karčić Fikret - in this part of Europe. Over the preceding five centuries, Islamic law had formed an integral part of the legal systems of the Otto man Empire, Austria-Hungary, and the Kingdom of Yugoslavia. - The focus of this book is on how a non-Muslim state, the Kingdom of Yugoslavia, applied Shariʻa law in relation to its Muslim minori ty under the jurisdiction of its own courts. First published in 1986, - during the final years of socialist Yugoslavia, this book was the first comprehensive study of this phenomenon and is now avail able in English.

Fikret Karčić

is Professor of Legal History at the Faculty of Law of the University of Sarajevo. He has taught at the Faculty of Islamic Studies in Sarajevo, Marmara University in Istanbul, the International Islamic University of Malaysia, the University of Oslo, and Boise State University (USA). - His main academic interests are the history of Islamic law and of Fikret Karčić the institutions of Bosnia and Herzegovina during the post-Otto man period, reformist movements in Islam, Balkan Muslims, and comparative legal cultures. SHARIʻA COURTS IN YUGOSLAVIA 1918-1941 IN YUGOSLAVIA SHARIʻA COURTS

ISBN 978-9926-471-07-1 ISBN 978-9958-23-524-5 INSHARIʻA YUGOSLAVIA COURTS 1918-1941 SHARI A COURTS IN

ʻ YUGOSLAVIA 1918-1941 Shariʻa Courts in Yugoslavia 1918-1941 Fikret Karčić First published as Šerijatski sudovi u Jugoslaviji 1918-1941, Sarajevo: Vrhovno islamsko starješinstvo, 1986.

First edition in English language. Copyright © 2019 Center for Advanced Studies This book is in copyright. Subject to statutory exceptions and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of the Center for Advanced Studies..

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School for Shariʻa judges in Sarajevo, established in 1887.

PUBLISHER : Center for Advanced Studies, www.cns.ba El-Kalem - Publishing Center of the Riyasat of the Islamic Community S in Bosnia and Herzegovina

TRANSLATOR: Desmond Maurer

CIP - Katalogizacija u publikaciji Nacionalna i univerzitetska biblioteka Bosne i Hercegovine, Sarajevo Fikret Karčić

IN YUGOSLAVIA SHARIʻA COURTS 1918-1941

Sarajevo, 2019

Contents

Preface...... 9

Introduction...... 11

its Application in the Southern Slavic Lands Before 1918...... Chapter I / General Remarks on Shariʻa Law and ...... 17 Rule1. General...... Propositions on Shariʻa Law and the Shariʻa Judiciary 2517 2. The Shariʻa Courts in the Southern Slavic Lands under Ottoman the End of Ottoman Rule to 1918...... 28 3. Thea. Bosnia Application and Herzegovina of Shariʻa Law...... in the Southern Slavic Lands from29 b. Serbia...... 35 c. Montenegro...... 39 d. Croatia and Slavonia, Slovenia and Dalmatia......

Chapter II / The Mandatory...... Character of Shariʻa Law and the Institution of State Shariʻa Courts in Yugoslavia 1. Legal Sources and Reasons for the Mandatory Application from 1918 to 1941 43 ...... a. The guarantee in international law of Shariʻa Law ...... 44 b. The constitutional guarantee for the application of Shariʻa ...... 44

of the application of Shariʻa law 485 Fikret Karčić / Shari'a courts in Yugoslavia 1918-1941

...... 60

2. Thein Yugoslavia Legal Consequences and Other Balkan of Establishing Countries State ...... Shariʻa Courts 62 3. A Comparative Review of the Validity of Shariʻa Law

Chapter III / The Structure and Functioning ...... 68 of the Shariʻa Courts 67 a) The 1918-1929 period...... 68 1. Establishing the Shariʻa Courts...... 80 ...... 95 b) The 1929-1941 period. ..95 2. The Character of the Shariʻa Courts a) CommunityThe relationship...... of the Shariʻa courts to the state authorities101 b) The relationship of the Shariʻa courts to the Islamic...... Religious105 ...... 108 a)c) ComparisonThe personal of and the technical Shariʻa and conditions the spiritual required courts for 3. The Shariʻa Justices ...... 108 ...... 112 appointment as a Shariʻa justice ...... 116 b) The professional and social status of Shariʻa justices 4. Theprocedure Functioning...... of the Shariʻa Courts 116 a) General characteristics and peculiarities of Shariʻa ...... court 118

b) Material weaknesses of the Shariʻa judicial system

...... 121 ...... 121 Chapter IV / The Sources and Character of Shariʻa Law in Yugoslavia a) The works of Muslim legal experts...... 122 1. Theb) The Sources reformist of Material Ottoman Shariʻa laws Law and decrees...... 125

...... 129 c) Private and official codifications ...... 138 and compilations of Shariʻa law ...... a)d) TheCirculars works and of theorders classical of the Muslim supreme legal Shariʻa experts courts...... 2. Theb) Ottoman Sources ofreforming Shariʻa Procedural legislation Law 142 ...... 142 c) The reception of Austrian procedural law...... and its codification of Shariʻa law ...... 143 ...... 150144 d) The attempt to codify Shariʻa procedural law 146 e) The works of the Yugoslav Shariʻa legal experts 6 Ch. V / The Social and Legal Consequences of Applying Shari’a Law and the Existence

...... 151 3. The Place of Shariʻa in the Legal System of the Yugoslav State from 1918 to 1941

Chapter V / The Social and Legal Consequences ...... of Applying Shariʻa Law and the Existence of the Shariʻa Courts 157 and Cultural Status...... 1. The Application of Shariʻa and Muslim Social an Oriental and Islamic to a Western European 157 a) culturalThe application sphere...... of Shariʻa law and the Muslim transition from158

Muslim marital and family life...... 163 c)b) AThe critical application review ofof Shariʻaopinion law on andthe application ......

Yugoslavof Shariʻa Private law Lawand ...... its role in Yugoslav Muslim social life 172 2. The Application of Shariʻa in light of the general condition of confessionalisation of Yugoslav marital law...... 175 a) Implementing Shariʻa as an expression of and factor in the Yugoslav civil law...... 175 b) Applying Shariʻa and the attempt to harmonise Conclusions...... 178183

References...... I - Sources...... 187 II - Literature...... 189 187

Preface

This book is an English translation of Šerijatski sudovi u Jugoslaviji 1918- 1941 (Sarajevo: Vrhovno islamsko starješinstvo, 1986). That book was based upon the text of my MA thesis of the same title, which was defended

This book remains the only comprehensive study of how Islamic law wasat the applied Faculty in of interwar Law of the Yugoslavia University written of Belgrade in Bosnian/Serbian/Croatian. on 22 July 1985. scholarship of the time. The book has been translated without any major changes.It was written in socialist Yugoslavia and reflects the legal and historical The issues discussed in the book are important for the history of Is- lamic law in a minority context as well as for the study of modern Islamic legal reform. In that sense, the English translation of this book hopes to bring the historical experience of the Muslims in the Western Balkans closer to the contemporary reader interested in Islam, law and minorities. In addition, this book shows that some of the issues debated at present about Muslims in Europe were being addressed in interwar Yugoslavia a century ago.

September 2019 Fikret Karčić

Introduction

status, family and inheritance rights, and any business related to endow- mentsFor Muslims or trust living funds in (thewaqf 1918-1941 Yugoslav state, issues of personal - cisely this purpose. ) were dealt with under Shariʻa law. Special Shariʻa courts were established as separate government bodies for pre legal regulations applied differentially based on aspects of personal iden- It is rare in the history of modern liberal-democratic states to find- ments within the court system for such purposes. Liberal-democratic statestity, in are this generally case religious founded affiliation, on principles or for of there nationality to be andseparate the territori depart- al validity and enforceability of their legal systems. The existence of is consequently a phenomenon of clear interest to legal history, as any similarShariʻa lawphenomena and Shariʻa in courtsa country in Yugoslavia with Muslim between minorities the two would world be. wars As such, it is a matter of interest to both the legal history of the southern -

Slavic peoples and the general history of Shariʻa law, a system which con tinues to flourish across a large part of the world today. centuriesThe Shariʻa that divide courts the that initial existed appearance in 1918-1941 of Islam Yugoslavia in the southern represent Slavic a final stage in the official applicationth of Shariʻa law in the region. Over the great institutional changes. These changes could be seen in the national, constitutional,area and the first and decades legal frameworks of the 20 century, and the thecultural Shariʻa and courts civilisational experienced con- texts under which they operated, in how they were organised, their jurisdiction, the law they applied, and in the social functions they served. In our analysis of their final historical phase in the southern Slavic lands, we shall11 Fikret Karčić / Shari'a courts in Yugoslavia 1918-1941 encounter elements of continuity and of change, of old and new, and see the interplay of many different social, legal, and ideological factors.

Yugoslav lands. Previous studies, discussions and articles on the Otto- man-periodThis is the constitutional first academic and monograph legal history to of treat the thesouthern Shariʻa Slavic courts peoples in the - naturally contain valuable information on the Shariʻa courts and the ap plication of Shariʻa law. There are noteworthy works by Avdo Sućeska,- Mehmed Begović, Mehmed Handžić, Hamid Hadžibegić, and Ahmed S. HerzegovinaAličić amongst under others. Austro-Hungarian A few authors ( Šrule.�aćir AllSikirić, of this Mihajlo has made Zobkow, it possible Adal tobert gather Shek) the have information dealt specifically required withto trace the and Shariʻa understand courts in the Bosnia history and of

- the Shariʻa courts between 1918 and 1941. La Evolution du DroitAny Musulman serious review en Yougoslavie of the literature (Algiers, on 1930) Shariʻa which courts is in still inter-war the most Yu completegoslavia must exposition include of Mehmed the problem. Begović’s A full doctoralthird of the thesis, book is dedicated to the question of the Shariʻa courts and deals with the general problem of the evolution of Shariʻa law in Yugoslavia. It gives an historical overview of Yugoslaviathe development were organisedof the Shariʻa during court the system 1930s, and their periodises areas of thejurisdiction, process. andThis theis followed procedures by a they contemporary’s applied. The view dissertation on how thewas Shariʻa composed courts and in printed very soon after the introduction of new legislation by the author- - cal introduction, the author limited himself to presenting their status in lawities andto regulate refrained the from Shariʻa analysing courts. Thisthe social, meant political, that, except and for legal his circumhistori- did not analyse the establishment of government stancesstatus. Objective that had ledfactors to Shariʻa prevented law being the author mandatory from fordealing Muslims. with He issues also arising from implementation of the 1929 Law on theShariʻa organisation courts or of their the Shariʻa courts and on Shariʻa justices. He was also unable to analyse judicial practices and other similar issues. of articles that present the history and structure of these institutions in the YugoslavThe nextregions, most particularly important inliterature Bosnia andon the Herzegovina. Shariʻa courts These belongs papers to were a set its regulation. They had practical as well as academic goals and express a produced in response to current issues affecting the Shariʻa court system and

12 Introduction range of views on the character of the courts in different parts of the country along with the status they should be given under pan-Yugoslav legislation. Examples of such works from the Arhiv za pravne i društvene nauke (henceforth Arhiv) - atskih sudova u Bosni i Hercegovini” (Arhiv include Hafiz AbdulahArhiv Bušatlić, “O ustrojstvu i nadležnosti šeri- no. 2/1923, 116-124), MihajloPra- Zobkow,vda – kalendar “Š�erijatski za godinu sudovi” ( , no. 1/ 1924, 49-59), Ali Riza Prohić, “Bos na ve Herzek šeriat mehakimi – Š�erijatskiPravosuđe sudovi, no. u Bosni6/1936, i Hercegovini” 1-16) is the (most 1920, 39-41). Berthold Eisner’s “Š�erijatsko pravo -i al-democraticnaš jedinstveni Yugoslavia. građanski Byzakonik” the time ( it was written, the reorganisation of the comprehensive of these presentations of Shariʻa and its application in liber - tionShariʻa of thecourts civil had code, taken it broaches root and a most series outstanding of theoretical issues legal had issues, been including resolved in practice. Considering Shariʻa law in the light of the ongoing homogenisa- the significance and character of Shariʻa law, theArhiv guarantees for its applica Thistion, theis a needrare examplefor a Serbo-Croatian from the interwar codification, Yugoslav etc. literature Another good of a workexample dedi is- catedMilan Bartoš’to teasing “Obaveznost out the implications šerijatskog prava”of the (international, no. 6/1936, guarantees 499-503). for -

Shariʻa law’s continuedArhiv application in Yugoslavia. Mehmed Begović also fo cusedWhile on the these Shariʻa articles courts contain in his considerable“Organizacija Islamskevaluable dataverske on zajednice the estab u- Kraljevini Jugoslaviji” ( , no. 5/1933, 375-387). activitylishment, is a organisation, major shortcoming. operation, and character of the Shariʻa courts, theirThere limitation are also to specific numerous issues works or periods that offer in athe more history general of the narrative courts’ - ofexposition the Yugoslav of the legal Shariʻa system. courts. These are mostly systematic presenta tions of the material and procedural aspects of Shariʻa law or of branchesŠerijats- ko-sudski postupnik s formularima Porodično i nasl- jednoThe pravo first Muslimana subset of this kind includes works Šerijatsko like Bušatlić’s bračno pravo s kratkim uvodom u izučavanje šerijatskog (Sarajevo, prava 1927) (Belgrade, and his 1936), and Ab- Šerijatsko (Sarajevo, nasljedno 1926), pravo Begović’s dulah Š�kaljić’s (Sarajevo, 1941). In presenting- Shariʻa law institutions, the authors discuss the Shariʻa courts’ jurisdiction over various issues, Shariʻa legal practice in Yugoslavia, and attempts to re form Shariʻa regulations through practice. 13 Fikret Karčić / Shari'a courts in Yugoslavia 1918-1941

The second subset includes systematic presentations of branches (or

Ustav i bračno pravo Građansko procesno pra- voproblems) Kraljevine of the Jugoslavije Yugoslav I-II legal system in such works as Dragutin Tomac’s- Ustavno pravo (Zagreb, Kraljevine 1925), Srba, Srećko Hrvata, Culje’s i Slovenaca This is perhaps an appropriate (Belgrade place to mention 1936-1938) the work and of Slobodan D. Tomac. Jova His nović’s (Belgrade, 1924). treatment of Shariʻa’s mandatory force and the character of the Shariʻa WWIIcourts Yugoslav contains literaturean historical to draw interpretation attention to of the article political 109 context of the andSt. Vitus’ legal Day Constitution, making him, to our knowledge, the first writer in the pre- consequences of the constitutional guarantee for Shariʻa courts. In fourth place, the literature on the Shariʻa courts comprises shorter articles on specific and important but contested issues that fell within their jurisdiction or practice. The works of A. Bušatlić, Mehmed Ali Ć�erimović, Kasimthat appeared Hadžić and in daily Abdullah and periodical Š�kaljić are presses examples that of offered this class sound of works. introduc - Finally, there are journalistic or popular writings on the Shariʻa courts more generally faced. tions to the real problems that the Shariʻa courts and the court system overviewThis monographand explanation explores of the how phenomenon Shariʻa law wasdrawing applied from by prior the stateaca- demicShariʻa work, courts while in the also interwar viewing Yugoslav things with state. historical It offers distance a more in complete order to provide a greater level of objectivity. Several issues need our attention. First, there is the question of of family and inheritance law and of waqf affairs. It is well known that Shariʻa law’s mandatory force for most Muslims in Yugoslavia in the areas types of marital issues before ecclesiastical or spiritual courts in accor- Yugoslav citizens of other religious affiliations also dealt with certain had a considerably wider scope of application than ecclesiastical law, not leastdance because with their it was respective statewide religious and through bodies government of law. Shariʻa courts. law, however,We must - ask: why this was so? More precisely, how did Shariʻa law come to be man datory for Muslims in practice in Yugoslavia between 1918 and 1941 structurethrough government and operations. Shariʻa How courts? were they organised and what was their placeNext, in the we judicial will have system to familiarise of the Yugoslav ourselves state? with How the were Shariʻa they relatedcourts’

14 Introduction to the Islamic Religious Community and what features did they share with the spiritual courts of the other religious communities? Who were the standing? How were their activities regulated and what were their short- comingsShariʻa justices, in practice? and what was their professional, social, and political administered and the law they applied. The sources of law they based theirThe decisions Shariʻa on courts must cannot be established be treated and in due isolation consideration from the must rights be they given to the impact of their practices, if any, on modifying the traditional status was affected by some of its regulations enjoying the executive sanc- tionviewpoint of the Yugoslavof Shariʻa state. law. There is also the question of how Shariʻa law’s Finally, we should make clear the social and legal implications of ap- - cation of such a special body of law impact the Muslim population, at- temptplying Shariʻato harmonise law through Yugoslav government civil law, Shariʻa and facilitate courts. How in the did process the appli of forming a common legal consciousness?

- lications,The following and the dailyexposition and periodical of the normative press, while legal aspectsthe legal-theoretical, of the Shariʻa historical,courts and and their sociological institutions analysis is based are on based published upon materials,the relevant official literature. pub in the Archives of BiH and had not been sorted at the time of writing, thus renderingThe documentation it inaccessible for for the academic Shariʻa courtsuse. The in Bosniasame is and true Herzegovina of the docu is- mentation of the Supreme Islamic Council in Sarajevo and the Council of the Islamic Community for Bosnia and Herzegovina, Croatia and Slovenia. The problems caused by this are somewhat mitigated by the fact that some of the Supreme Shariʻa Court in Sarajevo’s rulings issued between- gated1919 andin the 1944 daily have and periodical been published. press, Moreover,which makes major these decisions publications of the a Shariʻa courts, and particularly the higher courts, were regularly promul We have followed a dual method in presenting the materials: chrono- logicalfirst-rate presentation source in our (in case. discussing the problem of enacting and imple- - ogy (in dealing with the structure and operations of the courts, the sourc- menting legislation on the Shariʻa courts) and a problem-based methodol es of Shariʻa law, and the consequences of its application, et cetera).

CHAPTER I

its Application in the Southern Slavic General RemarksLands Before on Shariʻa 1918 Law and

The existence and activity of Shariʻa courts in the Yugoslav state between- riod1918 cannot and 1941 be studiedis just one, in isolation. albeit the One final, must phase consider in the history its prior of history,Shariʻa lawbe- neathand its the application surface of in which these weregions. may discern The Shariʻa the initial court stirringssystem during of many that ideas pe

- and solutions that would only bear fruit later. An historical review of Shariʻa- tweenlaw’s earlier the two application world wars. in the This southern will allow Slavic us to lands establish is thus the a necessary general and intro the particularduction to andany anyconsideration elements of of continuity the Shariʻa and court of change system in in the the structure period be of - ed in various forms in other countries with Muslim minorities help contextu- alisethis historical their presence phenomenon. in Yugoslavia. The fact However, that Shariʻa before court embarking institutions on ourhave review exist - ositions on this form of law and the court system that applied it. of how Shariʻa law was applied, it is important to consider some general prop

1. General Propositions on Shariʻa Law and the Shariʻa Judiciary any contemporary scholar on Orientalist studies and Muslim legal studies. Joseph Schacht’s research on Shariʻa law is perhaps the most important of

17 Fikret Karčić / Shari'a courts in Yugoslavia 1918-1941

1 It is often said Inthat his law view, is for “one Islam of whatthe most theology important is to Christianity legacies bequeathed – the most typical by Islam man to- worldifestation civilization of its teachings. is its system For Muslims,of religious law law is –not the just Shariʻa.” an aspect of Islamic teaching overall; it is its functional expression. In fact, Islamic teaching does not recognise any concept of law as a system of norms sanctioned by state coercion.2 The Islamic term, Shariʻa, usually translated as code or law, in fact means the entirety of human duties a path to water, but in the Islamic context it took on the meaning of the path Muslims must follow to attain salvation. . Originally, it signified - gious, legal and moral elements. These elements include principles of per- sonalGiven behaviour,this understanding hygiene, and sorole, forth. Shariʻa unsurprisingly comprises reli The agglomeration of norms referred to as Shari'a includes various elements. Adherence to some of these is not a matter of purely individual - guishes these rules qualitatively from other norms, violations of which arepreference. sanctioned It isonly the by state’s our personal concern sense to ensure of guilt enforcement or public shame. that Norms distin enforced by state sanction may be considered to have become law in the modern sense and could represent the basis for constructing a positive legal system based on the teachings of Islam. No such exclusive legal system has yet been constructed, however. Muslim legal experts have always been aware that many of the regulations they interpret are a matter for the individual rather than for the public authorities, who cannot readily exercise any real control over them. They have, nonetheless, continued to include them within the discipline that be the norms that regulate it. They judge every human act from the perspec- tivedeals of with the Shariʻa.Islamic Forsystem them, of life values. in all They its forms thus is retain a single the whole close and connection so must with religion characteristic of a particular phase in the historical development of many legal systems. The thesis that religion should regulate the offield validity of law of remains what is unchallengedgenerally considered in Islamic "law" teachings. within Islam.This understanding has had a vital influence on the general concept, development, and sphere

In the Islamic view, Shariʻa is known essentially through revelation. The 1main sources of Shariʻa norms and theirThe contentLegacy of Islamwere “given” by authority. 2 Law in the Middle East, I ed. M.Joseph Khadduri Schacht, and “Islamic H. Liebesny, Religious Washington, Law”, in 1955, 85ff. , Oxford, 1979, 392. Cf. S. G. Vesey Fitzgerald, “Nature and Sources of the Shariʻa", in 18 Ch. I / General Remarks on Shari’a Law and its Application in the Southern Slavic Lands

differThey arefrom the each Qur’an, other the in sacred qualitative text ofways, Islam, make and upthe what Sunnah, the thehistory normative of law termspractice the of ius Islam’s divinum messenger,. Muhammad, a.s. These two categories, which The belief that these bases of Islamic teaching are unchanging logically entails seeing interpretation as the means for rendering general principles and regulations concrete. The method is dogmatic. Given that Islam rejects any concept of a priesthood as a special category or of a church as the form of religious organisation, interpretation of the fundamental texts passed under the authority of the Ulamâ, learned experts in Arabic and Islamic teachings generally and scholars who devoted considerable attention to those parts of ahkâm). The interpretation and development of these texts gave norms the contentthe Qur’an required and the to Sunnah regulate that issues contain of thedaily regulations life. Taken ( together, these in- fiqh, which - terpretations comprise “construal.”Fiqh The Islamic term for this is literally means “understanding,” but is normally translated as “jurispru dence”affairs” or(rerum “legal divinarum science.” atque is humanarum entirely consistent notitia). with Whether the definition in the form of ofjurisprudence individual opinion from Roman (ijtihâd law) or as of “the the knowledgeconsensus of divinethe learned and human (ijmâ’, communis opinio doctorum), Fiqh is thus a second source of content for Caliphs,” the precedent.Shariʻa norms. Drawing It also conclusionsincludes rulings by analogyby the “rightly-guided (qiyâs), which traditional first four rulers of the Muslim state, which are accorded the character of interpreting and formulating norms. Similarly, respect for the general Shariʻa theorymaslaha, allows utilitas as a publica source) ofand law, equity is also (istihsân essentially) are anot method indepen for- dent sources, but goals by which the interpreter of the law is guided. benefit ( ‘urf) so long as it is in accordance with the general principles of Islam. This category may also includeThe institutions third source of for foreign Shariʻa law, norms given is thatcustom their ( reception has never 3 It is important to note that only the learned had the right to interpret fundamentalbeen recognised Islamic as an texts; independent the government source had in Shariʻa no authority legal theory. in this area. In - mentation and enforcement of the regulations or provisions formulated by theIslamic legal teaching, sciences. the In Muslim government’s states, theonly scholars function who was laid to theensure foundations the imple of

3 Islamic Law – Concept and Codification, Duh islama On the sources of Shariʻa law, see Amin Ahsan Islahi, Lahore, 1979, 27-51, Fazlur Rahman, , Belgrade, 1983, 105-125, 147-166. 19 Fikret Karčić / Shari'a courts in Yugoslavia 1918-1941 as a result. IslamicGiven jurisprudence that the state, often at found least themselves in theory, inwas conflict limited with to ruling sanctioning circles norms formulated by the legal sciences, the law in Islam has been consid-

The same conception that determined4 how law was construed in Is- lamered also a marked had an example impact ofon “jurists’ the traditional law.” understanding of its structure; ius and fas made a whole. Islamic jurisprudence considered its entire sphere of action to be a single whole with two parts. There was the area of the relations of the human and the divine (‘ibâdât) and that of purely human relations (mu‘âmalât). There was no sharp dividing line between these two areas. One must always have this in mind when studying legal - respond to that of the modern legal understanding. What is relevant is the historyconceptual because apparatus this classification that actually of governed Islamic jurisprudence life in the past does rather not thancor our ideas about the place of law in Islam. The division into ‘ibâdât and mu‘âmalât - son. According to Islamic teachings, human reason has no jurisdiction is significant for another rea authority for those who believe that they are of divine origin and inspiration.over However,the former. there The is texts room of for the human Qur’an initiative and the in Sunnah the latter, have mu‘âmalât exclusive. General principles may be developed and general norms stipulated through the efforts of scholars who are, nonetheless, subject to the limitations of their time and social circumstances. Accordingly, such interpretations can be changed, when the circumstances in which they were made change. This would prove very important for attempts at reforming

- riesShariʻa (the law, seventh especially to the in eleventh the territory centuries of Yugoslavia. of the new era), after which Mus- The process of interpreting the Shariʻa law unfolded over four centu- thelim scholarsideational tended fragmentation to agree inof principlethe Islamic on world. the generally complete and fin ishedNot status all areas of the of legal Islamic edifice legal of science Islam. hadThey been were equally mainly developed concerned by with this time any more than they had all been given equal treatment in the sources of Islamic teaching. The areas of family and inheritance law were covered in legal science was systematisation and the limited use of analogy. By contrast, some detail in the Qur’an and in the Sunnah so that all that was required of

204 Joseph Schacht, op. cit. 400. Ch. I / General Remarks on Shari’a Law and its Application in the Southern Slavic Lands criminal, property, and obligational law were covered only by provisions of a general character. Therefore, jurisprudence and custom had a major role to play here, particularly in property and obligational law. For the areas of national and international law, there were only general principles. It would be up to the legal sciences to build entire new branches of law on them. In practice, Islamic jurisprudence carried out these tasks in a many different ways. ‘ibâdât, literally religious ritual, is the most solid redoubt of regulations grounded in the sources of Islamic teaching itself. Govern- mentThe authorities field of still intervened in exceptional cases though the courts and other organs. Outside of religious administration, however, this normally had to do with cases of violating religious commandments (failing to fast, blasphemy, etc.), and the legal provisions applied normally belonged to criminal law (‘uqūbât). mu‘âmalât, the sphere of family relations, inheritance and waqf In the field of - visions in affairsthis area fell an almost unchanging exclusively character within thus the raising domain conformity of Shariʻa. withThe themQur’an to and the the level Sunnah of religious dealth withobligations. first two In areas practice, in detail, the givingapplication the pro of al-ahwâl al-shakhsiyya (personal sta- - tyShariʻa of the law individual in this area, and referredfamily when to as political regimes changed and Islamic normstus), came ceased to represent to dominate a final the mechanism public sphere. for5 preserving Waqf or endowment the Islamic law identi had a somewhat different role. The making of endowments or trusts came to be subsumed under the rubric of pious endeavours whose goal was closeness to Allah, but whose function was to provide a material basis for religious, educational, and cultural institutions amongst many others. This very closely connected waqf law with the public aspect of Islam as a religion. For Muslims, these three branches came to represent their freedom valid saw it as a condition of Muslim survival in areas where the writ of theand Muslimthe equal state status had of ceased their Islamic to exist, faith. as happenedDemands forin theShariʻa Balkans to remain once Ottoman rule ceased. This insistence on personal status and its importance was a result of the characteristic course taken by the development of Islamic legal science under the historical conditions of Muslim society. This viewpoint may be considered a consequence and a corrective factor of the thesis of

5 Islamic Studies, Shariʻa’s all-encompassing validity within Muslim society. Seyyed Hossein Nasr, “The Question of Changes in Muslim Personal Law,” in Beirut, 1967, 29-30. 21 Fikret Karčić / Shari'a courts in Yugoslavia 1918-1941

There are se - veral reasons for Shariʻa’s relatively feeble impact on areas- dependentof national, sourcescriminal, of and public financial legal regulation, law. First is viz. the legal fact science. that the The monarchy sources es of Islamictablished teaching thirty years contained after generalProphet principles Muhammad’s or provisions death could on thesenot accept matters. in Unstable political circumstances discouraged legal experts from working to develop them further, as it would have entailed criticising the violent behaviour of rulers and dynasties, a personal risk most legal experts were hesi- applied allowed government to transform itself into a de facto legislature. tant Forto take. these In thereasons, end, the regulations state’s role governing in organising government how Shariʻa bureaucracy was to be procedures adopted by respected rulers. Under the name al-siyâsa areal-sharʻiyya a theoretical reflex of the Islamic community’s early practices and of form a special unity and are not included under Fiqh. The underdevelopment (administration of in the accordance criminal withlaw principles Shariʻa), thesecontained norms in to apply its own provisions in this area based upon precedent and custom. Thesethe sources regulations of Islamic took teaching on the characterafforded government of national significantlaw and eventually freedom were applied to the general population. as zakâ faj’, war Thebooty, field but of also financial by the law provisions was influenced of Byzantine by Islamic and Sassanid institutions law such and the generalt, donating economic property and social to benefit structure the ofpoor the ormediaeval for public Muslim use, and states. This overview of how the various branches of the legal system in Islam developed over history is intended to help us understand the different approaches open to a Muslim population regarding the law of the land. If we - ceived state sanction, then we may conclude that the Muslim population hasuse a“Shariʻa very strong law” religiousto refer only motivation to that topart respect of Islamic such legalprovisions. science that re

While Shariʻa legal experts have not generally used state sanction as a wetool do in sodefining here. It Shariʻa is, however, law, it alsoseems, important from the that perspective we maintain of the the present distinction and betweenour investigation the legal intoand thestate religious Shariʻa elements.law, not just While possible religious but ritual inevitable has tradi that- tionally been subsumed under Islamic legal structures, it has not generally received been possible to give such norms much real legal protection. This was certainly the case for the later legal and governmental development of the Ottoman empire.

22 Ch. I / General Remarks on Shari’a Law and its Application in the Southern Slavic Lands

By the second half of the 19th extended to extra-legal issues. Even when it did, it generally was only applied to matters of religious administration. century, Shariʻa At the court same jurisdiction time, European rarely law spread to areas previously subject to Muslim governance stopping the courts in Bosnia and Herzegovina were warned, under Provincial Govern- mentviolation order of no. purely 2050 religious of May 2 normsnd, 1881, being that punished they could by no law. longer The Shariʻadecree Hatt-ı Hümâyun of 1856 for the transgression of religious norms.6 criminal punishment (prison or fines) in the sense of the lands. Its religious character would henceforth be manifest largely through This is a particularly important fact for Shariʻa law in the Southern Slav mandatory character, and whom it applied to. This separation of legal from religiousthe Muslim regulation population’s was accompaniedunderstanding by of a similarShariʻa’s separation origin and in nature, the scope its of the organs responsible for applying these disparate aspects of Islamic - acceptedteaching (viz.as a specialbetween civil the code government applied to Shariʻa Muslims courts with and only the some Islamic of its Reli in- stitutionsgious Community). recalling theFrom former that pointunity on,of religion, Shariʻa lawmorality, came andto be law. increasingly of an Islamic state characterised by the unity of its religious and secular functions.The general The judiciary idea of a inShariʻa an Islamic judiciary state derives falls under from the specificauthority concept of the national sovereign7 (the imam or Caliph), a mandate that includes leading the supervision of public life. The Caliph delegates his powers to govern- group prayers, interpretingQâdî the actsShariʻa, as thedeclaring representative and conducting and authorised war, and agent of the Caliph himself. Although the qâdî foundation,ment officials. in actual Thus, adjudication the he is bound only by the law. The principles of delegation and representation led to the’s authority judicial function lacks independent being exercised directly by the judge individually. In Islamic law, the legal maxim juge unique, juge inique (a sole judge is an unjust judge) has no purchase. Advi- sory bodies did exist in the Islamic judiciary at earlier points in its history, but they bear no comparison with the collegiate judicial bodies introduced during the 19th and 20th centuries. This idea of the delegation of judicial authority was theoretically modi- qâdî was the representative of Muslim society as a whole rather than of the Caliph. In either form, it is interesting to fied over time into the thesis that the 6 Zbornik zakona i naredaba za BiH Cf. Emile Tyan, "Judicial Organization", in Law in the Middle East , 1881, 342. 7 , I, 237-278. 23 Fikret Karčić / Shari'a courts in Yugoslavia 1918-1941 justices in non-Muslim countries, and we will do so in our chapter on the or- consider how this idea could be considered to retain any validity about Shariʻa The classical Islamic courts did not recognise levels or instances of jurisdiction.ganisation and Such character different of the ranks Shariʻa of judicial courts in institution Yugoslavia. as they existed in Muslim countries were not built upon a principle of degree or instances but simply proceeded from each other with judges of higher rank carrying out largely administrative functions. Under such circumstances, judicial - ter judgement” and appeals to special bodies established within the rele- vanterrors bureaucracy were corrected (al-mazâlim through). the institution of “reviewing sentences af Given the idea of representation and delegation, the qâdî - tion could be limited by decree of the political authorities. Taking this as their starting point, classical Muslim legal experts distinguished’s real betweenjurisdic the qâdî of a well-known work on Islamic national law, held that the qâdî authority’s generalextended and to specialhearing jurisdiction. disputes and Al-Mawardî� passing judgement, (d. 1057), theprotecting author the rights of individuals, exercising guardianship and pupillary authority,’s general oversight over endowments or trusts (waqf), executing wills, contracting marriage on behalf of individuals in wardship, executing criminal punishments, supervision of public life, establishing the bona fides of witnesses, and ensuring equity and equality at trial.8 Qâdîs had jurisdiction over all legal disputes involving Muslims. Non-Muslims could submit themselves, on request, to the jurisdiction of the qâdî All Muslim legal experts saw the proper exercise of the judicial function as a religious act. They went so far asand to the consider Shariʻa the law. delivery of jus- Sarâhs most important duties, after belief itself” (Kasân thetice religious“one of the character most honourable of the judicial acts functionof piety” comes ( fromî�) and the “one qâdî of the- thority in matters like the protection of mosques,î�). Furtheroversight testimony over waqf to, ’s au beginning of the Hijra month, conversions to Islam, etc. leadingThe group breadth prayers, of their confirming powers meant the visibility that the qâdî of the did new not moonjust represent and the the judicial authority but was also protector of the faith in the public sphere, which gave him a key position in the structure of the Muslim state. The religious character of the law they applied and the theoretical subordination of qâdîs, depending on their personal

8 Al-ahkâm al-sultâ âya al- the stated authorities to Shariʻa allowed ‘Ali b. Muhammad b. Habî�b al-Basrî� al-Mawardî�, niya fi al-wil î�niyya, Cairo, no date, 78-79.

24 Ch. I / General Remarks on Shari’a Law and its Application in the Southern Slavic Lands

- moral fibre, to play the role of protector of the law and defender of the weak. whoseOver legitimacy time, this was classical based concepton the holy of the law Shariʻa of Islam judiciary had ceased underwent to rule. mod ification, first in Muslim countries and then in countries where authorities

2. The Shariʻa Courts in the Southern Slavic Lands under Ottoman Rule times of the Ottoman conquest as Islam spread. During this time, Ottoman governmentalShariʻa courts wereand legal established institutions in the were southern introduced. Slavic The lands Ottoman during Empirethe the - tern. As a result, the principles and solutions generally applied by the Otto- was centralised and unified; its courts were organised after a common pat southern Slavic lands was the result of applying classical Islamic legal sci- encemans andspread tradition to these under regions. the Theconcrete form takenconditions by the of Shariʻa Ottoman courts rule. in Any the changes affecting the Shariʻa courts in the Ottoman state were thus directly reflectedIn the in literature their organisation on the history in the of southern law, the SlavicOttoman lands Empire and necessarily is consid- playedered the a significantmost successful role in attempt determining to create their an destiny. Islamic state after the fall of the Abbasid Caliphate. Details from the founding of the Ottoman state

In a statement to the Ghazi Emir Osman, founder of the dynasty, the Seljuk leaderwere suggestive Allauddin of made the role it a Shariʻacondition law for came recognising to play in thethe newfuture state Empire. that the status of national law.9 the law continue to be applied by the existing judges.qâdî was Shariʻa taken thus over, received along with its entire theoretical foundation, from a Muslim governmental and legalOne tradition result thatof this was was prior that to thethe officeOttoman of Empire. Thanks to the of- qâdîs retained much of the charisma of the Golden Age of Islam in the minds of Muslims. A mod- ernfice’s expert authority on Ottoman as applying law ofGod-inspired the classical law, period, the has deployed Max We- charismatic, traditional, and rational bureaucratic – were united in the ber’s terminology to argue that all three forms of “legitimate authority” – 9 â Law in the Middle East, 1, 280. Ebul’ul Mardin, “Development of the Shariʻa Under the Ottoman Empire,” in 25 Fikret Karčić / Shari'a courts in Yugoslavia 1918-1941

10 The elements of charisma beentypical something judicial office of an of exception the Ottoman within Empire. the Ottoman type of rationalised and tradition seem to have dominated, however, and the office seems to the Sultan as the source of power. bureaucracy,The combination where the of authorityjudicial independence of government in officialsdecision-making depended and on - judicialthe political function authorities’ a special lack place of legal within grounds Ottoman for exploiting society and the theopportu state. However,nities offered this didin principle not undermine by Shariʻa-legal the role the norm-building courts play in helped every state.give the So long as social institutions remained stable and prosperous (up to the end th century), the courts of the Ottoman Empire, for all their insistence on legality and the protection of rights, could do no more than miti- gateof the existing 17 contradictions and delay the development of social crisis. In addition to their judicial duties, qâdîs also carried out tasks of general administration since the Ottoman Empire lacked specialised organs for that. on personal status (i.e. only over Muslims), while that of state law – the qânūn –Their was applicationapplied over of territory the Shariʻa (i.e. law the contained entire population). in their legal The statutes qâdîs, referred depended to in the sources as hâkim-i-sharʻi as majlis-i-sharʻi Ottoman Empire during the classical (Shariʻa period. justices), European and their observers courts, referredof the 16 toth th centuries (Shariʻa who compared councils), these were courts the basic with judicial those ininstitutions their own ofcoun the- 11 and 17During the 18th century and beyond, as the Empire was increasingly affectedtries were by impressed general social by their and efficiency, economic speed, crises, and and fairness. the qâdîs steadily fell ayâns. Riddled andmore became and more not under just a the symptom, influence but of a local major grandees factor in– thethe decline of the with corruption and inefficiency, the service lost its former reputation- Shaikh al-is- lgovernmentalâm to root out and irregularities legal system. in Thisthe courts.is why12 Selim Measures III (1789-1807) taken against initiat the judiciaryed his reforms, during one this of period the first aimed of which at reviving was anan orderideal from to the the past, when

“the laws of God and state were respected.” 10 th C. Ottoman Kayseri,” Studia Islamica

11 R. C. Jennings, “Kadi, Court and Legal Procedure in 17 Anali Pravnog(Paris) XLVIII/1978, fakulteta u Beogradu 137ff. , nos. 5-6 12 Mustafa Imamović,Uređenje “Glose Bosanskog uz jednu ejaleta novu studijuod 1789. o Do osmanskom 1878., Sarajevo, krivičnom 1983, pravu,” 13. /1974, 646. 26 Ahmed S. Aličić, Ch. I / General Remarks on Shari’a Law and its Application in the Southern Slavic Lands

Major changes came to the Ottoman legal and judicial system in the middle of 19th century. The reforms known in the Ottoman Empire as the Tanz mât were announced in the Hatt-ı Sharif of Gülhâne or Rose Garden decree, issued on November 3, 1839, by Sultan Abdul Majeed (1823-1861).13 This î�proclamation, with its guarantees of natural and human rights, equality and freedom of worship, and equality of taxation, provided a basis for introducing new legal regulations and creating new institutions to meet the expanded in the Hatt-ı Hümâyun of February 18, 1856, particularly those offeringneeds of greaterthe state. freedoms The ideas for expressed Christians, in the including new law their were participation confirmed and in government bodies and the civil courts which were to be organised as independent institutions. Starting with the Tanzîmât, the once unitary legal system of the Otto- man Empire would be divided into two separate wholes built on two en- - duced into areas that Islamic legal doctrine did not deal with (corporate tirely different bases: Shariʻa and European law. The fiqhlatter solutions was to be had intro become obsolete (criminal law, executive court procedure). law, modern trade law, finance, et cetera) or where 14 system. Traditionally trained judges were not capable of applying the new EuropeanThese law, changes while to the the non-Muslim legal system population were necessarily could not reflected be represented in the court in courts was to create special commercial courts (mahâkim-i tijâriyya) with jurisdictioncourts based over on Shariʻa commercial principles disputes alone. between The first Ottoman step towards subjects. reforming This was the based on French law. The next step was the Decree on vilayet organisation of th special bodies referred to as courts regular (mahâkim-i nizâmiyya) to deal Novemberwith civil disputes 7, 1864 or (the delicts 7 of under Jumâdâ the al-Ahira, national a. law h. 1281),code.15 which introduced The courts presided over by the qâdîs had been fundamental and uni-

(mahâkim-i sharʻiyya), to dealing with questions related to the personal statusversal institutionsof Muslims (marriage, but now found family, themselves and inheritance) limited, and as Shariʻa waqf affairs. courts Decree on the organisation of the Shariʻa courts of the 16th Their jurisdiction had already been clarified under the of Safar, a. h. 1276, (September 13

Cf. Aličić, op. cit. 54-56, 76. Šerijatski sudovi, Gajret 14 (Sarajevo)The Shariʻa 1928, legal expert155. A. Bušatlić characterized the Islamic legal doctrine of the time as a 15 state “of awful inertia, stagnation, and treading water,” A. Bušatlić,

A. S. Aličić, op. cit. 140.

27 Fikret Karčić / Shari'a courts in Yugoslavia 1918-1941

15, 1859).16 in what and who fell under their jurisdiction. The creation The Shariʻa of regular courts civil thus courts became in the specialised Ottoman institutions, Empire and both the themitigation history ofof theIslamic Shariʻa governance courts were that particularlysecular courts important applying for secular the legal law werehistory established of the Muslim on the world. same It basiswas, according as qâdî courts. to Schacht, This the alone first entailed case in 17 Muslim states from the practical legal sphere to the theological and meta- physical.relegation This of thewas thesis not affected of Shariʻa’s in any all-encompassing way by the historical real-life co-existence validity inof qâdîs, for example, also served as presidents of the judicial bench of the regular courts,the Shariʻa for theand simpleregular reason courts thator their during overlapping this period in practice.they were The the only trained jurists in the Ottoman Empire. -

SouthernShariʻa Slav courts lands, were this reorganised meant in Bosnia in all theand countries Herzegovina, under in Ottomanthe southern sov territoriesereignty, in of line Serbia with (in these Niš, Kosovo legal and and judicial the Sanjak), reforms Macedonia, of the 1870s. and part In the of what is now Montenegro. This would play a major role in determining the context of and scope for the continued application of Shariʻa law in the region.

3. The Application of Shariʻa Law in the Southern Slavic Lands from the End of Ottoman Rule to 1918. - ceived different solutions in the various Southern Slavic lands during this period.The issue The of determining the validity factorof Shariʻa here law were and the how circumstances it was to be governing applied re a governmental structures, and the status of the Islamic religion. The histo- rygiven of the national Southern government’s Slavic peoples international and lands standing, after the itsend internal of Ottoman legal ruleand provides interesting data in this regard on the different destinies a single legal system could experience in a single geographical region.

16 Dustur Dustur was the legal compendium of the Ot- toman Empire. , I, Istanbul, a. h. 1289/1872, 301-314. The American Journal of Comparative law,

17 J. Schacht, “Islamic Law in Contemporary States,” 28 no. 2/1959, 134-135. Ch. I / General Remarks on Shari’a Law and its Application in the Southern Slavic Lands

a. Bosnia and Herzegovina

Austria-Hungary did not explicitly take on any obligations under international law as to the form of administration it would establish when it received its mandate to occupy Bosnia and Herzegovina under the Treaty of - pation normally presupposed retaining the existing legal situation in occu- piedBerlin territories. of 1878. Under Moreover, the general the Austro-Hungarian rules of international representative law, however, at the occu Con- - fringements upon the sovereign rights of his Imperial Majesty the Sultan in thegress provinces of Berlin of gave Bosnia a written and Herzegovina…” undertaking noting18). The that established “there will practice be no in of the Dual Monarchy was in any case to respect the political and legal traditions of the historical states and provinces it comprised, which favoured maintaining the legal status quo - , including the applicationLaw on Shariʻa of Shariʻa courts law of thethrough 16th separate state courts.19 One of the first decrees of the occupying au tothorities the national on Muslim government. institutions was to confirm the of Safar, a. h. 1276. The nomination of Shariʻa justices was left up administration approached different aspects of Muslim social life in different ways.The While, example on the of theone Shariʻa hand, thecourts right illustrates of the Islamic how the religious Austro-Hungarian authorities (Mashîkha - na from the ranks of the domestic pool of candidates was recognised, this was not the case) in with Istanbul qâdî s.to Clearly,appoint the religious Austro-Hungarian officials in Bosnia authorities and Herzegovi were al- qâdîreadys metbeginning with little to reduce success, the because Sultan’s of “inviolate both energetic sovereignty” opposition to matters of the oc of- cupyingreligion. authoritiesAttempts by to the any Porte form toof securerecognition its influence of Ottoman over national the nomination sovereign of- ty and opportunistic behaviour by Muslim religious leaders.20

systemThe of Shariʻa a Christian courts state. in Bosnia It was thatand stateHerzegovina which determined thus became, their for juris the- dictionfirst time and in composition.their centuries-long It was thatexistence state whichin the land,appointed, part of transfered, the court law decisions were executed. There was no opposition to this from Mus- and replaced judges and committed its authority to ensure that Shariʻa 18 Pravni položaj i unutrašnje-politčki razvitak BiH od 1878-1914, Sarajevo,

19 Mustafa Imamović, Sammlung 20 1976, 15. Autonomni pokret Muslimana za vrijeme austrougarske uprave u BiH, Sara- “Gesetz über den Wirkungkreis der Scheriatsgerichte,” , II, 476-481. Cf. Nusret Š�ehić, jevo, 1980, 21-24. 29 Fikret Karčić / Shari'a courts in Yugoslavia 1918-1941 lim circles for a variety of reasons. The principal one was that many legal experts of the Hanafî school, to which the Muslims in the Balkans belong, considered the nomination of qâdîs by non-Muslim rulers valid. Secondly, being backed by the authority of the state, even a Christian one, lent the courtsShariʻa as courts state greaterjudicial weightorgans, and Austria-Hungary authority than took they on would the responsibility have had as just organs of a religious community. Third, by recognising the Shariʻa Law on Shariʻa courts, the occu- pationfor financing authorities and staffing embarked them on adequately. a programme of standardisation. Through Shortly after reaffirming the Ottoman many more subsequently, Austria-Hungary left its mark on the institution no fewer than 387 orders and rulings issued between 1878 and 1900 and

21 of theThe Shariʻa central courts legal documentin Bosnia issuedand Herzegovina, by the Austro-Hungarian as well as contributing authorities significantly to their survival. Order on the organisation and activities of the Shariʻa courts Imperial decree onin Bosnia August and 29, Herzegovina1883, and published on the courts’ by the organisation Provincial Government was the for Bosnia and Herzegovina , affirmed by 22 This

on October 30, 1883, under serial number 7220/III. - sionorder the established distinctions in betweenlaw the changes their areas made of jurisdictionto the Shariʻa and courts those during of the adthe- first five years of Austro-Hungarian rule and stipulated with greater preci - ularministration’s courts and own thanks political to their organs expertise and the in domestic regular civil law courts.were called upon to considerFollowing cases wherethe occupation, the civil judges the Shariʻa lacked courts knowledge continued of the alongside applicable the legal reg regime. These included marital, family, and probate matters for non-Muslims, when required by the public interest or expressly requested by the parties.23 for dealing with a list of issues in so far as they affected Muslims (or ‘Moham- Under the 1883 Order (article 10), the Shariʻa courts were made responsible marital law where both husband and wife were of the Muslim faith, regard- lessmedans,’ of whether as they they were also termed). involved These property included relations, any and matters all matters related related to the to rights and duties of Muslim parents and their children, probate hearings and handling the estates of deceased Muslims where they involved mulk property

21 Priručnik zakona i naredaba za upravnu službu u BiH, Sarajevo, 1915, 329-333. 22 ZbornikCf. Eugen zakona Sladović, i naredaba za BiH 23 Spomenica Šeriatske sudačke škole , 1883, 538-542. 30 S�aćir Sikirić, “Naši šerijatski sudovi,” , Sarajevo, 1937, 14. Ch. I / General Remarks on Shari’a Law and its Application in the Southern Slavic Lands

(unhindered personal private ownership), hearings in any legal action or case taken with regard to inheritance or legacies of the aforementioned type, and courts also participated in the division of arâdî miri (heritable usufruct over nominallycertificates state-owned and other formsland, normally of provision for rent) in the in Muslim case of hands, death. wardship The Shariʻa or guardianship matters (particularly administering the property of orphans), conveyancing or contracts based upon tapija or title deeds and grants of usufruct that predated the establishment of the land registry, and waqf administration (article 11). Under subsequent decisions of the national government, this authority was extended to investigating the validity of proxy authorities or powers of attorney, that is the legality of the signatures on such proxy powers the governance structures of waqfs, hearing civil disputes regarding waqfs wherefor Muslim the waqfindividuals,-related as aspect well as of to the the matter participation was not of itselfShariʻa in justicesquestion, in Muslim inheritance of miri properties, etc. The Austro-Hungarian authorities introduced24 certain novelties into most important was the creation of a second level (instance) within the how the Shariʻa courts were organised and theirqâdî business) registered conducted. with Thethe court system. At the first level, Shariʻa justices ( 25 district administration (articles 1-2) carried out Shariʻa jurisdiction. From 1906, the Shariʻa courts became an integrated part of the district courts. - The second and final instance was the Supreme Court in Sarajevo in its role as Supreme Shariʻa Court (article 2). According to article 15 of the regula- ident.tion, the26 Supreme Shariʻa Court comprised four judges, two of whom were Shariʻa justices, with the chief justice of the Supreme Court serving as pres whose rulings Under werea law generated promulgated by a on committee February of 17, three 1913, members (article of15, the it. Su1),- the Supreme Shariʻa Court was envisaged as a second-degree instance- sions were attended by a non-voting member of the Supreme Court, in an essentiallypreme Shariʻa advisory Court, role, the largelymost senior restricted of whom to questions would preside.of general, These inter-re ses- ligious, and international law. - 27 In this way, the Supreme Shariʻa Court be came Ibid., an 18-19.institution composed of Shariʻa justices that carried out the tasks 25 Ibid., 20. 2624 Ustrojstvo i nadležnost šerijatskih sudova lithograph,The Supreme August, Shariʻa 1905, Court 1. was a bench with five judges at this point. Cf. Adalbert Schek, Glasnik zakona i naredaba za BiH, 1913, 69. (lectures given at the Shariʻa Judicial College),

27 31 Fikret Karčić / Shari'a courts in Yugoslavia 1918-1941 within their areas of competence independently. From an administrative point of view, however, it continued to be part of the Supreme Court. Another matter related to the introduction of a second-tier in the

Shariʻa court system involved granting parties the right to appeal to the SupremeThe question Shariʻa Court now arises against as decisions to what led of thethe Austro-Hungarian first instance Shariʻa adminis court- (article 16). This was a significant modification of Shariʻa procedural law.- anism of appeal as a regular legal recourse. First one should note that tration to introduce a second-tier into the Shariʻa court system and a mech- matters.Austria-Hungary Consequently, accorded throughout the Shariʻa its courtsexistence, importance the Austro-Hungarian as institutions adbe- ministrationcause of both was Muslim anxious sentiment to regulate and their both role how dealing the courts with weresignificant organised legal and their jurisdiction in some detail. It was, moreover, unthinkable under the Austro-Hungarian understanding of a Rechtsstatt for any form of judi- - worthy view of Eduard Eichler, a leading expert of the day on political and legalcial decision-making conditions in Bosnia to be and limited Herzegovina, to first-instance it was a rulings guiding only. light In of the govern note- ment policy in the region to affect a gradual adjustment of existing legal and regulatory frameworks to Western European principles.28 - dence in Bosnia and Herzegovina as part of the more general process of modernisingOne should these view courts the through introduction the second of appeals half of into the Shariʻa19th century jurispru un- law was applied.29 The establishment of a second-tier or instance was of- tender accompaniedthe influence byof theEuropean introduction ideas inof thealmost principle all countries of collegiality were Shariʻa on the

Court in Bosnia and Herzegovina. The question of how the second-tier courtsbench. Wewere have to bealready set up seen was this approached principle aton work principles on the common Supreme to Shariʻa most - dence. Here we are thinking primarily of the role of judges on the regular of the countries experiencing the modernisation of their Shariʻa jurispru- nia and Herzegovina, at one point the civil judges on the Supreme Court civil courts in the operations of the second-tier Shariʻa law courts. In Bosqâdî had the casting vote in the Supreme Shariʻa Court. In Algiers, the courts only acted as courts of first instance, while the regular civil courts had jurisdiction over appeals. In so-called British India, Shariʻa law was 28 administered29 byA History the of regular Islamic Law civil courts, the final instance for appeal S�. Sikirić, op. cit. 15. 32 N. J. Coulson, , Edinburgh, 1978, 163. Ch. I / General Remarks on Shari’a Law and its Application in the Southern Slavic Lands being the legal committee of the Imperial Privy Council. This introduction of the principle of a second-tier and allowing civil judges from the regular courts to exercise influence over the implementation and application of Shariʻa law was intended to ensure a higher degree of legal certainty and- oryof control and the over Muslim the Shariʻa religious courts leadership by the government viewed these authorities. measures to mod- At this point, the question arises as to how experts in Shariʻa law the- garian authorities. ernise the Shariʻa courts in Bosnia and Herzegovina by the Austro-Hun principles for the organisation of the courts and procedural law. In the interpretationThe unalterable of legal sources experts, of theShariʻa state themselves had the right contained to stipulate only how general the - tatives of the supreme government authorities. ShariʻaOne law could was notto be even applied, theoretically because thedeny courts the Austro-Hungarian functioned as represen state, - tures, the right to organise them in line with its own regulations. A further which had brought the Shariʻa courts under its own government struc - pire,fillip which towards had accepting introduced the these principle principles of a into second its own tier civil and court collegiality system duringwithin the periodShariʻa ofcourt the Tansystemmât came, allowing from thepractice possibility in the for Ottoman and ensur em-

The introduction of civilẓî� judges from the regular courts into sec- ing the legitimacy of similar reforms in the Shariʻa courts. law itself, but it was nonetheless implemented in practice for the simple ond-tier Shariʻa courts was not acceptable from the perspective of Shariʻa- perts and the Muslim religious leadership did, however, take measures to reason that it was the will of the government authorities. Shariʻa legal ex- ing factor (casting vote) to an advisory one on questions of general law. reduce these judges’ role on the Supreme Shariʻa Court from that of decid- na as government institutions, even though Islam was no longer the state Austria-Hungary retained the Shariʻa courts in Bosnia and Herzegovi politicalreligion. controlIn addition over to the the institutions. undeniable Article benefits 6 of it theoffered 1883 in Order the application stipulates thatof Shariʻa the district law, this administration status allowed (an organthe government of the political authorities authorities) to exercise was to relations, as well as the moral and political conduct of the applicant party” andsecure forward a report it to on the each provincial candidate government. for Shariʻa judge, covering “the personal

33 Fikret Karčić / Shari'a courts in Yugoslavia 1918-1941

Islamic ritual, religious and educational, and to some degree waqf affairs were now Withhanded implementation over to the jurisdiction of Shariʻa oflaw the under Muslim the religiousjurisdiction structures. of state courts, These were reformed on the hierarchical principle common to modern religious - lamic Religious Community through the requirement that candidates for qâdî passcommunities. a technical The exam Shariʻa before courts the Ulamâ had only Majlis an orindirect Council relationship of the Ulam toâ , theunder Is the chairmanship of the Grand Muftî - didates also sat annual exams before the Grand Muftî College (article 9 of the Statute establishing (article a Shariʻa7 of the Judicial Order fromCollege 1883). in Saraje Can- vo).30 at the Shariʻa Judicial the Majlis of the Ulamâ before any decision (article 20 of the 1883 order). The Moreover, the Supreme Shariʻa court had the right to seek the opinion of- forbasis Islamic for nominating religious andShariʻa educational justices was autonomy the government had been regulations resolved that for theap Grandpointing Muftî officials (article 4 of the 1883 Order). It was only after the struggle- tices through the issuing of murâsala – a religious imprimatur that a given was able to exercise greater influence on appointingStatute for theShariʻa autono jus- mous administration of Islamic religious, waqf and maârif affairs).31 person was fit to apply Shariʻa law (article 140 of the - - tro-HungarianThe fact that rule Shariʻa in Bosnia law wouldand Herzegovina. continue to Thebe applied Provincial through Constitu gov- tionernmental (Statute Shariʻa courts was never questioned at any point during Aus amongst Muslims) of February for family 17, matters 1910, included and marriage, a provision as well in articleas the 10inheri that- statedtance of “it mulk is guaranteed.” 32 When the that regular Shariʻa judiciary law will in Bosnia continue and to Herzegovina be applied was being put on a proper legal footing through legislation, a general courts. The Law on constitution of the courts of December 23, 1913, stipu- readiness was expressed to do the same for the institutions of the Shariʻa - lated in article 63 that “the structure of the state legal services and the Shariʻa courts shall be dealt33 The with start under of the special First laws, World as War shall and the the nomina disso- lutiontion and of theofficial Monarchy conditions prevented of officers the enactment within the of state the legallaw. services and the Shariʻa court system.” 30 Zbornik zakona i naredaba za BiH 31 GlasnikThis statute zakona was i promulgatednaredaba za underBiH order no. 23 972/IMaârif of the refers National to the Government administration for BiH of educationalon May 14, 1887. institutions, ( like madrasahs. , 1887, 48ff. 32 Glasnik zakona i naredaba za BiH, 1910/II,, 1909, 419-454. 21ff. 33 Glasnik zakona i naredaba za BiH

, 1913, 405-411.

34 Ch. I / General Remarks on Shari’a Law and its Application in the Southern Slavic Lands

b. Serbia only arose after the Balkan wars. It simply had not arisen as an independent legalThe question issue before of legal that orregulation had been of dealt how with Shariʻa in terms law wasof the applied situation in Serbiaon the ground. According to the hatt-ı shar f of the 1st th of September 1829 and that of the 1st th of November, 1833, the non-military Muslim populationî� in the autonomous of Rabī�’ al-Ā� khir,Serbian 1245/30 state was required to leave within a period that of Rajab,was initially 1249/7 one but later extended

Muslimsto five years. and appliedThe mass by exodusqâdîs. finally took place after the conference at Kanlica in 1862. In the meantime, Shariʻa law had continued to be valid for- ereignty was extended to areas whose population were predominantly After successful wars against Turkey from 1876 to 1878, Serbia’s sov The provi- Muslim.sions of theThe Berlin law dealing Peace Treaty with the that liberated dealt with areas, Muslims dated and January their34 property3, 1878, accorded Islam the status of recognised35 It seems religion to have (article been assumed77). that the legal guarantee of freedom of religion and legal recognition of a religion entailedin Serbia thedid rightnot cover to apply Shariʻa at leastlaw. certain provisions of religious law. The application of religious law to marital relations followed from there being no civil marriage in Serbia at that time. Since marital regulations in the Ser- bian Civil Code Church, Christians who did not belong to that confessional community and of 1844 were based upon the teachings of the Orthodox non-Christians (Muslims and Jews) contracted marriage under their own- religious law. Regulation number VN: 2444, dated December 7, 1861, was- plyingissued theto cover regulations Serbian of subjects whatever of church Catholic the or spouses Protestant belonged affiliation, to.36 Therestipu lating that their marriages should be officiated by the first-tier courts, ap that the provision also covered non-Christians. This would have meant were no explicit regulations for Muslims or Jews. 37Ž�ivojin Perić took the view that Zbornikthe application zakona i naredaba of Shariʻa izdanih law u Knjaževstvu lay within Srbiji the od jurisdiction5. avgusta 1877. of do the 12. juna regular 1878,

3534 vol. 32. Belgrade 1878, 266. Prilozi Cf.Instituta Vladimir za istorijuĐuro Degan, radničkog “Međunarodnopravno pokreta u Sarajevu uređenje položaja Muslimana s osvrtom na 36 uređenje položajaNaš brakdrugih i reforma vjerskih njegova i narodnosnih skupina na području Jugoslavije,” Lično bračno pravo po srpskom GZ , 8 (1972), 63-64. A. Andrijević, , Veliki Bečkerak, 1919, 50. 37 Z�ivojin Perić, , Belgrade, 1934, 28, fn. 24. 35 Fikret Karčić / Shari'a courts in Yugoslavia 1918-1941 civil courts. However, that did not happen in practice. One reason for this

Most of the Muslim inhabitants of Serbia lived in the region of Niš. The most certainly was due to the civil judges’ ignorance of Shariʻa. marital affairs in his role as a religious judge. He was no doubt also respon- Muftî� of Niš was their religious leader and exercised jurisdiction over their in the literature). We base this assumption on the primarily on the fact that, fromsible fora religious issues of point inheritance of view, law marital (though and this inheritance is not specifically law have mentioned the same - significance from Muslims, which is why this area was reserved in non-Mus- sidedlim countries over matters for the of application inheritance of asShariʻa. justice The of secondchoice atreason the request we make of thisthe parties.assumption We cannotis because suppose in the his Yugoslav jurisdiction state wasof 1918 any tomore 1941, restricted the Muftî� in pre the period immediately following the end of Ottoman rule. One particular point of interest relates to the judicial practice of the directly to the Sheikh ul-islam in Istanbul for review, even though this in- fringedMuftî� of uponNiš. Should the national either partysovereignty appeal ofhis Serbia. decisions,38 In hethis would case, sendtherefore, them an organ of a foreign state was acting as second-tier instance. This practice was not based on any legal act or decision of Serbia and simply represented the behaviour on the ground of a religious elder or leader, defer- based on the Multaqâ compendium, which one Serbian author has de- ring to his own supreme religious leader. Judicial decision-making was- 39 scribedAfter as the“a clerical Balkan Handbook… War of 1912, which Ottoman contains rule the came regulations to an end on in Mus the Novilim marital Pazar Sanjak,law, based Kosovo upon and the what principles today ofis theknown Qur’an.” as North Macedonia. proportion of the population was Muslim, raising the question of how to regulateThe liberated their areasstatus were in religious annexed and to Serbiacivil law. and Montenegro. A significant These questions were incorporated into the peace treaty signed be-

Agreement envisaged establishing an umbrella religious organisation for alltween the Muslims Serbia and in Serbia Turkey (see in Istanbularticle VIII). on March 14, 1914. The Istanbul served as religious, educational, and judicial authorities. The King would There were muftî�s in every district, elected by Muslim voters that

38 nominate39 Ibid., 50. a supreme Muftî� from amongst three candidates chosen by all A. Andrijević, op. cit. 54. 36 Ch. I / General Remarks on Shari’a Law and its Application in the Southern Slavic Lands

the Shaikh al-Islam through its mission in Istanbul of the nominee for su- the muftî�s in special session. The Serbian government would then notify- ties (manshūra and murâsala), enabling him to delegate the rights to exer- preme muftî�, who would then be providedfatwas with all the required authori cise Shariʻa jurisdiction and to issue to other muftî�s in Serbia. It was envisagedThe most important that the muftî�s provisions would ofhave the the Istanbul same rightstreaty and for theduties applica as all- other public officers in Serbia. here in full: tion of Shariʻa law in Serbia were items 10 through 13 of article 8, given (Item 10) In addition to jurisdiction over purely religious affairs and a super- visory capacity regarding waqf amongst Muslims in matters of marriage, divorce, the assignment of alimony and child support, wardship, guardianship, property, the muftî�sattainment will exerciseof majority, jurisdiction Islamic wills, and the inheritance of the duties of mutawallî (tawl t). (Item 11) Regarding inheritance, interested Muslim parties may, under the î� All normal legal forms of recourse through the courts will be available against suchpreceding arbitration agreement, decisions, have unlessrecourse stipulated to the supreme to the contrary muftî� in byhis special role as clause.arbiter. (Item 12) Any hujjat

or rulings handed down by the muftî�s will be subject to scrutiny by the supreme muftî�, who will confirm them if they are found to be organsin accordance of Serbia. with the regulations of Shariʻa law. (Item 13) Rulings40 by muftî�s will be enforced by the appropriate responsible The Istanbul peace treaty may be considered the international legal instrument that governs in most detail the standing of the Muslim popula- - tries after the end of Ottoman rule. This makes the irony all the greater tions and the implementation of Shariʻa law in the Southern Slav coun made law in Serbia because Turkey joined the Central Powers in World Warthat Oneit was that never broke actually out so applied.soon afterwards. The agreement The Serbian was ratified government but never nul- two countries. Moreover, the ideas given expression in the Istanbul treaty hadlified an the impact agreement on the because internal of legislationthe existence of ofthe a stateSerbian of war state between governing the the question of the implementation of Shariʻa law. Here we are thinking particularly of the linkage between the religious and the Shariʻa-legal functions retained in the person of the muftî�. 40 See Đuro Degan, op. cit., 80-81.

37 Fikret Karčić / Shari'a courts in Yugoslavia 1918-1941

Under the Order on the organisation of the courts and on judicial process in the annexed territories of Old Serbia spouses, disputes over maintenance, guardianship, dated June 7, and 1914, wardship the following issues, weretrust fundsplaced for under minors, the jurisdiction and their ofemancipation the muftî�s: marital or coming disputes of age between (article Muslim 52). 41 The establishment of During the First World War, the Muftî� of Niš was appointed42 as acting supreme muftî� of Serbia via a decree of the Council of Ministers. this office not only ensured unified administration of Muslim religious affairs in Serbia, but also allowed oversight and review of muftî�s’ decisions in their opinionapplication (fatwâ of Shariʻa. In cases of appeal by dissatisfied parties, the supreme muftî�In could, the newly on examination liberated ofterritories the details then of the being case, incorporated issue an authoritative into the ) instructing the responsible muftî� to alter his ruling. - fabric of the Serbian state, application of Shariʻa was entrusted to the muf tî�s who under Ottoman tradition had carried out religious, educational,- and advisory functions. The scope of application of Shariʻa law was now restricted. Any attempt to explain why muftî�ates were now being established in place of the Shariʻa courts that had existed before must consider judicialthe following spheres circumstances. of action, so First,that existingthe institution administrative of muftî�ate arrangements already ex couldisted in simply Serbia be before extended the Balkanto the newlywars and liberated had both and religious annexed andterritories. Shariʻa never-implemented Istanbul peace treaty. Secondly, Orthodoxy was the stateMuftî�ates religion with in a Serbia, similar with sphere other of religionsaction had like been Islam envisaged recognised under but notthe of equal status. For this reason, it would probably have been impossible to

- ed,establish as simultaneously institutions like religious state Shariʻa and judicial courts, bodies applying to the Shariʻa situation to Muslims in the on a compulsory principle. Third, the status of the muftî�ates correspond function of priest and judge. wasOrthodox very close Church to religiouswhere officials institutions43 of a certainthat already rank existedcarried in out the the state joint of Serbia and had jurisdiction over In some this way,marital the affairs.institution of the muftî�ate

This was the situation regarding the implementation of Shariʻa law when the Muslim-populated areas under Serbia’s national sovereignty came to be incorporated into the first common state of the Yugoslav peoples. Jubilarni zbornik života i rada 41 SrpskeSHS 1 XII novine, 1918-1928, no. 126 II, ofBelgrade, June 10, 1929, 1914. 658. 42 Hasan Rebac, “Islam u Kraljevini Srba, Hrvata i Slovenaca,” De l’Evolution du Droit Mu- sulman en Yougoslavie (Algiers, 1930, 111). 43 Mehmed Begović pointed out this similarity in his dissertation, 38 Ch. I / General Remarks on Shari’a Law and its Application in the Southern Slavic Lands

c. Montenegro

The issue of the legal regulation of the religious and civil status of the Mus-

qâdîluks were incorporated within its national and legal framework.lim population In thein Montenegroabsence of any first other arose legislation-making after the 1876-1878 instance wars inwhen the country,five Ottoman the decrees and legal acts of Prince Nikola were the only legal basis - ation of the liberated areas, the Prince appointed Hajji Salih-efendi Huli of for the application of Shariʻa law for a long time. Some years after the annex

Ulcinjsuggestion, to be muftî�Prince of Nikola Montenegro, appointed giving qâdî hims in the Ulcinj, authority Bar, and to44 judge Podgorica. Muslims Of under Shariʻaqâdîships law, “just as it was during the Ottoman time.” At the Muftî�’s- ceive qâdîs, due to emigration of the Muslim population from these areas. the five from the Ottoman period, Kolašin and Nikšić did not re45 internalThe administration resultant situation of the was Mohammedan confirmed in confession the Montenegrin falls to the Constitution Montene- of December 6, 1905, in the concise provision contained in article 129, “the- grin muftî�.” What this provision entailed is clear from parts of the royal ad dress from the throne, held before the assembly on St Nicholas’ Day, when the lawking on said marriage, “to our Muslim dissolution, countrymen, and inheritance, who do notand fall make short them of their equal Christian in free- domsfellow and citizens rights in withgood theirconduct, Christian work, brothersor obedience, in the I confirmstate, so them that theythe Shariʻa are in no wise hindered in the spiritual connections which have always linked them with their great Caliph.” 46 - ing guardianship over custodial The jurisdiction accounts and of the trust Shariʻa funds courts for Muslim was rendered minors, thein more property detail of by widows, later rulings and the of division the Minister of the of so-called Justice. Itminor included dowry establish (which appears to have corresponded to the category of mulk property in Bosnia and Herzegovina), while the pastures, meadows, and woods that comprised the arâdî miri in other areas) fell under the national courts. In Montenegro, like in our other areas, different forms of inheritance regulation were“great applied dowry” depending ( on the legal nature of the legacy. The regular courts enforced the decisions of the Shariʻa courts. sudova,” Glas Crnogorca 44 M. Karađuzović, “Crnogorski i bosansko-hercegovački muslimani i nadležnost šerijatskih Crna (Cetinje), Gora ino. Berlinski 4, January kongres 31, 1912. Agrarni 45 Forodnosi more u Crnoj on the Gori problem (1878-1912), of the MuslimTitograd, population 1959. in Montenegro after the 1876-8 wars, see Novak Ražnatović, , Cetinje, 1979, Ž�arko Bulajić,

46 M. Karađuzović, op. cit. 39 Fikret Karčić / Shari'a courts in Yugoslavia 1918-1941

The qâdî Minister for Education and Ecclesiastical Affairs, at the suggestion of the s had the status of government officials, appointed by the

Muftî�, with the prior approval of the King. The Montenegrin muftî�, whose tooffice appeal was the referred qâdî to as the Shariʻa Administration, acted as a second-tier instance in the application of Shariʻa law. Dissatisfied parties47 had the right courts in Montenegros’ rulings was introduced within 15 bydays the of Introductory promulgation. provision regarding theA certain Law on degreejudicial of process confusion in civil regarding cases, dated the Novemberjurisdiction 1, of 1905, the Shariʻa article would in future exercise judicial authority in marital disputes, so long as such4 of which disputes stipulated did not that relate the to spiritual property judicial rights. authorities A lack of and jurisdiction Shariʻa courts over marital property disputes was also the case for48 Christian spiritual courts. of marital property issues (the dower or mahr, the maintenance of divorced womenThe Shariʻa or nafaqa courts had, however, always had jurisdiction over the resolution actually implemented, it would make Montenegro an exception in this re- , et cetera). If article 4 of the introductory provision was- ble for property issues (inheritance, custodial accounts, et cetera). gard,Students which we of doubt, these circumstancesas the Shariʻa courts have generally here were judged in any the case condition responsi of - ceedings were conducted primarily orally and in Ottoman and that the cus- todialthe Shariʻa accounts courts (aytâm in Montenegro sandūk) were quite kept negatively. without They order have or notedoversight. that proDue to the absence of legal regulation of the area, many issues were left to the

After the First Balkan War, the Muslim religious administration 49was personal preferences of the muftî� and the alertness of the state organs. unified across the entire national territory of Montenegro. A Central- Shariʻa Administration was formed, with its seat in Stari Bar, later moved to Podgorica, but changes were only made to the Shariʻa court system af ter unification in 1918. d. Croatia and Slavonia, Slovenia and Dalmatia

The administrative and legal regulation of the status of Islam and Muslims came relatively late in the Austro-Hungarian-ruled southern Slavic lands

Glas Crnogoraca Ibid. 47 M. Karađuzović, , no. 5, February 4, 1912. Novo vrijeme (Sarajevo), no. 48 49 Dža-m, “Organizacija šerijatskih sudova u bivšoj Crnoj Goroj,” 34, September 5, 1931.

40 Ch. I / General Remarks on Shari’a Law and its Application in the Southern Slavic Lands

(other than Bosnia and Herzegovina) probably because of the negligible Muslim population. All these countries share a common absence of the status of legally recognised religion in these areas, under the Law on rec- ognisingapplication the of Islamic Shariʻa religion law. It inwas the on kingdoms 27 May, 1916,of Croatia that and Islam Slavonia received.50 The the Islamic Religious Community and the doctrines, provisions, and customs of Islam received legal protection, so long as they did not infringe upon

General Civil Law Code (OGZ) were tothe apply existing to Muslim legal order. marriages, Under until article such 7 oftime the as law, their the marital regulations rights of were the notsecond otherwise chapter dealt of the with first under part ofa specialthe law. The relevant provisions of the civil code applied to questions of marital disputes, consanguinity, and divorce. The functions and roles given the clergy under the civil code were to be carried out by the political authorities for Muslims.51 Islamic institutions that were considered contrary to current opinion were not given legal protection. For example, polygamy was not merely left without legal protection, but was considered a criminal act.

Slovenia or Dalmatia either. Civil law governed these issues and the civil Muslims could not regulate their marital affairs under Shariʻa law in- trian Law on the recognition of the followers of Islam under the Hanafî rite ascourts a religious had jurisdiction. association This situation was a result52 of article 7 of the Aus It is striking that, except in Bosnia and Herzegovina, Muslim marital relations were regulated, datedin the July Austro-Hungarian-ruled 15, 1912. southern Slavic lands so as to subject the entire area to the general civil code. Family and inheritance relations simply were not mentioned. This is understandable for waqfs which basically did not exist in these areas. In our view, the absence of any mention of Muslim family and inheritance affairs in government regulations can be explained by the following circumstances: the Austro-Hungarian monarchy regulated the legal position of Islam and Muslims in line with its policy towards other religious communities. These communities had their own spiritual courts, responsible for the non-property-based marital affairs of their adherents. In family and inheritance matters, however, their adherents were subject to the general civil code. On the same principle, Muslims were subject to that same body

50 Zbornik zakona i naredaba valjanih za Kraljevine Hrvatsku i Slavoniju 51 52 List državnih zakona za Kraljevinu i zemlje zastupane u Carevinskom, X/1916, vijeću, 149-151.LXVI/1912, E. Sladović, Ž�enitbeno pravo, Zagreb, 1925, 94-95.

875ff.

41 Fikret Karčić / Shari'a courts in Yugoslavia 1918-1941 of law. It was, however, only for Muslims that the regular civil courts had jurisdiction in non-property-related marital affairs, while the spiritual courts were responsible in the case of other religious communities. This was because of the small number of Muslims, the absence of an Islamic religious hierarchy in these areas, and the consequent irrationality of es- undertablishing the newa separate Yugoslav Shariʻa state. court system. The matter of the validity of Shariʻa law in these areas would change

42 CHAPTER II

The Mandatory Character of Shariʻa Law and the Institution of State Shariʻa Courts in Yugoslavia from 1918 to 1941 mandatoryThe establishment validity of for the Muslims first joint across state the of the whole South territory Yugoslav of thepeoples state. did At notthe sameinterrupt time, the a consistentapplication uniform of Shariʻa system law. Inwas fact, introduced this system applying of law ittook through on a

Yugoslavia retained its own separate system of law and separate courts for dealingnational with or state family, Shariʻa inheritance, courts. In and this endowmentway, the Muslim or waqf population-related in issues. interwar Is- lamic law was thus more widely applied than other systems of religious law

These phenomena should be of particular interest to legal historians. in theWe first will Yugoslavia now look andmore had closely validity at these in civil, two and aspects not just of theconfessional application law. of

- Shariʻa law in Yugoslavia – its mandatory character and the institution of state Shariʻa courts. A more complete explanation will require investigating the le gal sources and reasons behind the mandatory application of Shariʻa. We then- need to elucidate why and how the institution of national Shariʻa court was accepted for the application of Shariʻa legal regulations. What were the rea- nally,sons, andwe willwhat look was at the the significance way Yugoslavia of accepting dealt with such the a solution question which of applying did not arise even indirectly from the principle of Shariʻa’s mandatory character? Fi- ropean countries with Muslim religious and ethnic minorities. Shariʻa law and compare it with how this matter was dealt with in other Eu

43 Fikret Karčić / Shari'a courts in Yugoslavia 1918-1941

1. Legal Sources and Reasons for the Mandatory Application of Shariʻa Law mostFor a importantvariety of different international reasons, instruments the question and ofso Shariʻa in the fundamentallaw’s validity law for ofthe the Muslim country. population In both cases,found thea place question in one was of treatedthe new as Yugoslav integral state’sto the problem of the general status of Muslims. The legal guarantees and how to constitutional, legal, and cultural status as a liberal democratic polity. realise them were largely overdetermined by Yugoslavia’s socio-political,

a. The guarantee in international law for the application of Shariʻa a new consensus emerged regarding the importance of protecting ethnic, religious,During the and First linguistic World War, minorities. under the1 The influence legal means of European for realising public thisopinion, goal were found in the international legal institution of the protection of minorities. This represented a corrective to the formation of new states on the national principle. The remit was the protection of any citizens in a state who differed from the majority population by race, creed, or language. The new European states were thus bound under international conventions and peace treaties to protect minorities residing within their national territory. For the Kingdom of the Serbs, Croats, and Slovenes, this obligation was contained in the peace treaty concluded by the main Allied and Associated Powers with Austria at Saint Germain on September 10, 1919. Article 51 of the treaty required the State of the Serbs, Croats, and Slovenes to accept in advance and unreservedly any and all provisions the major powers should consider necessary for the protection of minorities. These provisions were to be contained in a separate agreement annexed to article 51. Signing such a blank cheque was in clear contravention of the very idea of national sovereignty, and the Yugoslav delegation at Saint Germain refused to sign the agreement. Under international pressure and with additional interpreta- - hausted by the agreement on the protection minorities, the Yugoslav state accededtion to the to theeffect by that declaration the Kingdom’s on December obligations 5, 1919. under article 51 were ex

1 Zaštita manjina

Cf. Ilija Pržić, , Belgrade, 1933, 77ff.

44 Ch. II / The Mandatory Character of Shari’a Law and the Institution of State Shari’a Courts

In addition to the general provisions on the protection of minorities,

Muslims, contained in article 10. The Kingdom accepted a number of obligations,the agreement e.g. on regulatingannexed to the article family 51 andalso personal contained status specific of Muslims, provisions nom on- ination of the Raîs al-Ulamâ or Grand Muftî, the protection of mosques, graveyards and other religious institutions and establishments, and the granting of all the necessary forms of relief to Islamic endowments and other charitable institutions. Under this agreement, the entire Muslim population in Yugoslavia (Mus- lims in an ethnic sense, the members of either the Albanian or Turkish ethnic minorities, Roma, etc.) was treated homogeneously as a religious minority. Because of this form of treatment, the agreement on the protection of minori- toties the only series included of such the international kingdom’s obligations instruments regarding drawn upMuslim and agreedreligious upon life afterand certain the First other World matters War to derived protect from the religious specific aspects rights, not of the just faith. of individuals, It belongs but of entire groups. The provisions of these agreements had to be incorporated into the internal legislation of the states bound by them and legal protection of the rights contained in them provided.2 Putting things in terms of a religious rather than a national Muslim question was in fact close how most Muslim religious and political representatives viewed things as they busied

Theythemselves accepted in the the first treaty years on theof the protection new Yugoslav of minorities state pursuing as an important the idea of re a- sourceunified inreligious their internal organisation political for battles. Muslims across the territory of the state. A rare exception amongst Muslim politicians in his approach to the th regular session of the Provisional National Assembly of the Kingdom of Serbs, TreatyCroats andwas Slovenes.Š�ukrija Kurtović,3 He argued who against spoke against treating article Muslims 10 atas the a minority. 125 He was also against introducing provisions for the protection of the Muslim population into the peace treaty with Austria, because he believed that

Muslims inwould our state.” ultimately Naturally, find themselvesthis was not worse entirely off correct under northe wasnew it state. ever fullyHe further achieved stated during that the “everything history of thearticle liberal 10 democraticspeaks of already Yugoslav exists state. for

2 Arhiv, no. 2/1926 (vol. XII/XXIX),

3 StenografskeSergei Troicki, beleške “Međunarodna Privremenog zaštita narodnog religiskih prestavništva prava,” Kraljevine Srba, Hrvata, i Slove- naca,104-105. V,

Zagreb, 1921, 463.

45 Fikret Karčić / Shari'a courts in Yugoslavia 1918-1941

The peace treaty with Austria and the declaration signed at Saint Ger- th regular session of the provisional National Assembly, on September 28, 1920. The treaty was passed main were entered into record at the 127 4 5 There have been attempts in the literature to clarify the origin and rea- provisionallysons for the special into law article on May on 10,Muslims 1920 andin the as treatystatute on on the June protection 18, 1922. of -

Sakibminorities. Korkut. According He had to been one version,approached the idea by afor pair article of Frenchmen,10 was first formuone of whomlated by was the the journalist military attaché, and Yugoslav with a Muslimsuggestion Organisation that he put (JMO) the demands activist of the Bosnian and Herzegovinian Muslims into writing.6 This visit had followed the appearance of an article by a French journalist, Charles Rivet, in Le Temps circumstances Muslims found themselves in under the new state, accompa- nied by an (April appeal 1, from 1919), Grand in which Muftî he had published details of the difficult France to ensure that the Muslim population was afforded protection of both their persons and property. TheDžemaluddin plausibility Č�aušević of this that explanation called upon is largely based upon the fact that several obligations under article 10 (nomination of a Grand Muftî and the protection of graveyards and mosques) have no sources in earlier international legal instruments that deal with the position of Muslims nor any particular similarity to the obligations put on other Balkan countries regarding their Muslim populations. What impact the demands of the Muslim element in Bosnia and Herze- govina really had on the introduction and formulation of a special article on onMuslims generally in the available treaty is information difficult to judge.on the Yugoslav drafting ofauthors the agreement who have at dealt the peacewith this conference issue (I. andPržić, on A. statements Purivatra, madeand V. by Degan) individuals. have based It might their be possiviews- ble to source a reliable account of the origin and formulation of article 10 from the minutes of the Committee for New States which was responsible for drafting the treaty. These documents were not published during the interwar period, however, and the problem does not appear to have attracted any special attention from lawyers or historians since. 7

5 Službene Novine, no. 133-A, no. 224-XXX from 1920. 64 AtifIbid., Purivatra, 491. Jugoslavenska muslimanska organizacija u političkom životu Kraljevine Srba, Hrvata, i Slovenaca June 19, 1920, and

Even a recent book on, 66, the fn peace 14. This conference explanation fails tois dedicatebased upon any particularprivate documents attention into the possession of M. Hadžijahić (Sarajevo). Jugoslavia 7 na konferenciji mira 1919-1920. Belgrade, 1969. question of a special article on the Muslims of Yugoslavia. See Andrej Mitrović,

46 Ch. II / The Mandatory Character of Shari’a Law and the Institution of State Shari’a Courts

What is certain regarding the treaty is that the major Western powers (the USA, France, and England) did exert pressure on the Kingdom of the Serbs, Croats, and Slovenes to sign it. It is also true that governing circles in the kingdom did their best to avoid doing so because it contained international guarantees for Macedonia, rather than because of the special article on Muslims. Secondly, the international guarantees of freedom of religion and civil equality for Muslims with all other citizens were, as we have seen, in line with existing international relations and international legal instruments in Europe

- starting from the very first establishment of nation states in South-Eastern EuropeIt is as only it liberated the obligation itself from to nominate Ottoman a rule. Muslim The religiousYugoslav leaderstate’s forobliga the statetion to as apply a whole Shariʻa that law one therefore might see was as not coming novel fromin this Muslim context. circles within the Kingdom of the Serbs, Croats and Slovenes. This may well have been presented to the French emissaries or equally well communicated to the representatives of the great powers in some other way.

As to the question of the obligatory nature of Shariʻa law, the contents of provisionThe state 1of of the article Serbs, 10 Croats, are significant.and Slovenes They agrees go with as follows:regard to the Muslims, insofar as their family and personal status concerned, to introduce provisions which will allow these issues to be regulated in accordance with Muslim custom.8

in Yugoslavia rested upon the treaty for the protection of minorities, the textSo, even of the though instrument the demands itself did for not,the mandatoryas Milan Bartoš application has shown, of Shariʻa actually law excluded recourse to general civil law for Muslims.9 give Shariʻa regulations the character of mandatory law, any more than it

What is striking here is that there is no mention of Shariʻa law itself in article 10; rather all that is discussed is “Muslim custom.” It is not at all clear- that these two terms refer to the same thing. While Shariʻa did determine atMuslim times customs defended to traditionala very large forms degree, of popular behaviour tradition with moreand foreign enthusiasm influ ences also played a significant role in shaping them. In Yugoslavia, Muslims than8 they did Shariʻa legal regulations.Zaštita When manjina the ,international 223). obligations 9 Arhiv, no. 6 503.The text follows the translation of I. Pržić ( See Milan Bartoš, “Obaveznost šerijatskog prava,” /1933 (vol. XXVI/XLIII), 499-

47 Fikret Karčić / Shari'a courts in Yugoslavia 1918-1941

religiouswere integrated and political into internal representatives legislation, on retainingthe expression the institution “Muslim ofcustoms” nation- was interpreted as “Shariʻa law” because of the insistence of the Muslim 10 al Shariʻa courts. One of the rare authors to draw attention to the possible consequenceshis view, based of on the his expression interpretation “Muslim of customs”the treaty, was that Hamid the state Hadžiefendić. legislature Discussing the problem of reforming Shariʻa law in Yugoslavia, he expressed themselves could do so by changing their customs. In this way, there would behad no no infringement jurisdiction over of the changing international Shariʻa treaty.law regulations, The only unresolvedbut that Muslims issue would therefore be which Muslim forum would have the authority to initiate and decide upon a change in customs. As was generally the case with attempts by Muslim modernising intellectuals to reform Muslim cultural and social life, his position had little practical impact. Secondly, article 10 of the treaty required the Kingdom to allow the family and personal status of Muslims to be regulated in accordance with on obligatory validity for Muslims. The international treaty would not havetheir beencustoms. violated As styled in any in waythis provision,had the Yugoslav Shariʻa lawstate did acted not similiarlyhave to take to law, but could also eschew it voluntarily and submit themselves to the generalFrance in civil Algeria law. Inor short,to Bulgaria, the international where Muslims obligation had recourse under Saintto Shariʻa Ger-

- liticalmain didand not legal have nature to result that inproduced making thisShariʻa situation. obligatory or even retaining the institution of national Shariʻa courts. It was reasons of an internal po

b. The constitutional guarantee of the application of Shariʻa law courts in Bosnia and Herzegovina was raised on the internal political stageThe issue during of the applying very initial Shariʻa stages law of and revived the survivalpolitical life of the in the state new Shariʻa state. placed front and foremost in the programmes of groups working on creat- ingReligious a common demands, Muslim including political the organisation. continued Some validity groups of Shariʻa, insisted were on them more, others less, but none rejected them. This is understandable given the religious and political isolation of the Muslim masses, their

10 Šerijatsko bračno pravo,” Reforma (Sarajevo), no. 2, March 30, 1928.

H. H. Efendić, “

48 Ch. II / The Mandatory Character of Shari’a Law and the Institution of State Shari’a Courts sense of vulnerability, and the circumstance that the major social and indeed the politically decisive factor for the Muslim population at the time was their sense of religious solidarity.11 The Muslim Organisation, a political group from Sarajevo gathered around the Vrijeme - ary 8, 1919), argued in its programme for a constitutional guarantee for newspaper (the first issue of which came out on Janu samethe institution sphere of ofaction, the Shariʻa or, in certain courts, areas, “as state an expanded authorities one. responsible12 for passingIn its judgement Fundamental in accordance programme with for aShariʻa common regulations,” organisation retaining of Muslims the within the Yugoslav state, the Tuzla Action Committee, grouped around - hindered application of the Islamic religious regulations of the Hanafî madhabmuftî� Ibrahim Maglajlić, was particularly vocal in its demands for the un an extension of their jurisdiction over all Muslim family affairs and recognition of andtheir a executiveguarantee authority. of the independence13 of the Shariʻa justices with

1919 around a programme put forward by the publicist, Sulejman el-Syrri The Muslim Community, a group formed in Banja Luka in January- ity of Islam with all other public confessions. Moreover, everything im- pliedAbdagić, by the sought following “freedom words, of confession Shariʻa, Waqf, and Caliphate a state guarantee, and so forth, of the includ equal- ing the necessary institutions.” Yugoslav Muslim Democracy14, a group formed in December 1918 in Sa- rajevo, in spite of not dealing with a number of important religious issues, nonetheless found it impossible not to broach in its programme (Jedna- kost - tions, as well as the extension of their sphere of activity to all other parts of Yugoslavia, January 8,where 1919) there the wereretention Muslims of the living. Shariʻa15 It courts is true, as however, vital institu that there was no insistence in any of this upon an extension of the actual au- thethorities orientation of the Shariʻaof the Muslim courts. Organisation, whose leading members had The JMO, founded on February 16, 1919, adopted in its programme been the author Edhem Mulabdić and the journalist and theologian Sakib Korkut. It is worth noting that, according to a clarification issued by the 11 Cf. Veselin Masleša, Muslimansko pitanje party’s12 A. Purivatra, Central op. Committee, cit. the reasons for setting up independently had 13 , Dela, II, Sarajevo, 1954, 1954. , 414. 15 Ibid., 416. 14 Ibid., 417. Ibid., 416.

49 Fikret Karčić / Shari'a courts in Yugoslavia 1918-1941

- lim religious and educational autonomy, the relationship with the Caliph- ateincluded the government’s unwillingness to address the question of Mus- rations for serf resettlement, relief of debts on village smallholdings, and , and the institution of the Shariʻa courts, as well as questions16 of repa outthe lootingin section of Muslim2 of it programme property during that stated: the period of unification. The JMO’s demands regarding the application of Shariʻa law were set

will remain unaltered with their current scope of action as government authori- We demand a constitutional guarantee that the institutions of the Shariʻa courts

- ties for issuing judgement in accordance with Shariʻa regulations. This scope of ven jurisdiction over all Muslim family affairs and responsibility over the condu- action is to be extended in the following regard, viz. that the Shariʻa courts be gi ct of Muslim wardship affairs and for keeping the registers of Muslim births and deaths, as well as for contracting and dissolving Muslim marriages, giving the

have judicial authority in all waqf matters requiring hukmi sharʻi registers the status of public records. We also demand that the Shariʻa courts decisions]. We request that these courts be given executive authority in all their [Shariʻa court

disciplinary authority over any parties, with a view to ensuring the authority of decisions and rulings, while Shariʻa justices should be given the right of direct the bench. 17 inextricably connected for the Muslim citizens and their religious represen- tativesAs is evident, in Bosnia applying and Herzegovina. Shariʻa law There and retaining was no inkling state Shariʻa of the possibility courts were of any other form of solution. In fact, they were calling for an increase in the qâdî - cial emphasis was placed on providing a constitutional guarantee for the s’ judicial authority and an expansion of their existing authorities. Spe- - poratingexistence such of Shariʻa provisions courts into as governmentthe fundamental authorities law of the entrusted land was with a way adju to guaranteedicating in the accordance permanence with and Shariʻa sanctity law. ofFor the Muslim institution. representatives, Due to their incor position, the question of applying Shariʻa law through national Shariʻa courts took Articleon special 65 of importance the Draft Constitution for the JMO presented during preparations by the Yugoslav for adopting Muslim clubthe first to the constitution constitutional of the committee new Yugoslav of thestate. Constitutional Assembly was -

16 Ibid., 56. dedicated to the establishment of Shariʻa courts. For the most part, it re

1750 Ibid., 418-419. Ch. II / The Mandatory Character of Shari’a Law and the Institution of State Shari’a Courts

- ated version: produced the party’s programmatic preferences in a somewhat abbrevi

for Muslims. It shall have independent governance over Muslim pupillage or war- The national Shariʻa courts shall rule over family, marital, and inheritance issues dship matters and shall administer birth and death registers for Muslims and record their marriages. These books and records shall have the status of public records.18 jurisdiction over waqf It may be noted that this formulation lacks any reference to Shariʻa court imprecise expression, rather-related than issues of any requiring intention Shariʻa-judicial to exclude waqf decision, affairs as stipulated in the JMO programme. This is almost certainly a matter of The draft constitution offered by the Yugoslav Muslim club was one of eightfrom thedraft authority constitutions of the Shariʻaput forward courts. and was not itself accepted as the basis for further work by the Constitutional Assembly. The ideas ex- constitution. For example, during discussion over the principles of the draftpressed constitution in it, however, at the guided 10th sessionJMO deputies of the inconstitutional the debate on committee, the draft judge Fehim Kurbegović declared: count today with us as government courts and we insist they remain such. For … Another very important issue for us is that of the Shariʻa courts. These courts the most part, their remit is to deal with family issues, keeping the registers and records, and inheritance rights.

- wouldThey are be an acting integral against part ofour Shariʻa own lawinstitutions. and we cannot We therefore give that require up. We canthat thesenot make institutions any concessions remain governmental that go against and Shariʻa that theirlaw, in authority this regard, and asjuris we- diction remain within the same boundaries as proposed in our draft…19 The next step in the struggle for a constitutional guarantee for the - stitution. In discussing the constitutional provision for the judiciary (arti- Shariʻa courts was made during discussion on the details of the draft con amendment to the article, which stated: cle 70), Mehmedalija Mahmutović, the Muftî� from the Sanjak, proposed an 18 19 Stenografske beleške, Rad Ustavnog odbora Ustavotvorne skupštine Kraljevine SHS, I, Bel- Ibid., 83, fn7. SB. RUO.

grade, 1921, 124. Henceforth 51 Fikret Karčić / Shari'a courts in Yugoslavia 1918-1941

- ritance matters for the Muslims, in accordance with the regulations of the Hanafî …the government Shariʻa spiritual courts shall rule on family, marital, and inhe madhab. They shall manage independently all matters of wardship (custodial accounts) for Muslims and administer the registers of Muslim births and deaths as well as the contracting and dissolution of Muslim marriages. The registers and records shall have the status of public records.20

courts in both the Sanjak and Macedonia of the sort that already existed in BosniaThe Muftî� and explained Herzegovina. his proposal It is particularly in terms interesting of the need that to establish the proposal Shariʻa for froma constitutional the southern guarantee regions oftook the quite Shariʻa different courts andpositions Shariʻa on law important came from is- a non-JMO deputy. Even though JMO deputies and Muslim representatives

sues, in this case deputy Kurbegović felt able21 to state categorically that Muftî�The Mahmutović’s actual formulation proposal of was the entirely annex toin articleaccord 30with proposed the JMO’s by draft the constitution’s position on state Shariʻa courts. - Muftî� from the Sanjak contained certain peculiarities. First, it used the strange phrase “state Shariʻa spiritual courts,” within which the designa tors “state” and “spiritual” are mutually exclusive. Insofar as the Muftî� was following the model of the Shariʻa courts in Bosnia and Herzegovina,Hanafî the madhabepithet “spiritual” was clearly out of place. Second, it stipulated that the Shariʻa courts would rule in accordance with the regulations of the . There is no mention of this in the JMO draft of the constitution. This is probably because the Shariʻa-judicial and religious authorities had authority over issues of material Shariʻa law, so there was no need for thestate to affirm this. As to the position on jurisdiction in the execution of wardship (custodial accounts) matters and the registers, Muftî� Mahmu- zegovina.tović’s proposal was identical to that of the JMO and represented a call for a broadeningVoices were of the raised courts’ at the jurisdiction same session in comparison of the constitutional to Bosnia andcommit Her- - tee against a constitutional guarantee for the Shariʻa courts. Milosav Ra jčević, a former Montenegrin justice minister, argued for religious affairs remaining within the remit of the Shariʻa courts, just as Orthodox and Catholic courts dealt with the religious affairs of their flocks, however he argued20 against the Shariʻa courts ruling on matters of property. He asked: 21 Ibid., III, 6. Ibid., III, 4-5. 52 Ch. II / The Mandatory Character of Shari’a Law and the Institution of State Shari’a Courts

with in one way, while those of the Orthodox and Catholics are dealt with in“why a quite should other the one?” property22 affairs of Mohamedans be separate and dealt -

Deputy Vojislav Marinković considered it generally superfluous to in ofclude regular provisions courts andon Shariʻa their jurisdiction courts in the is stipulatedconstitution. in law.” “The He Shariʻa pointed courts out are regular courts,” he claimed, “and the establishment and organisation- tablished until the situation was changed in law.23 that the Shariʻa courts would remain wherever they had already been es-

The JMO deputy Sakib Korkut responded to these objections in prin ciple. He strongly opposed any reduction of the Shariʻa courts to merely religious (spiritual) ones: “Everything that lies within the jurisdiction of- selfthe Shariʻais a logical courts consequence today is already of the contained principle inof Shariʻarespect and for ourreligion.…” demand that the institution of Shariʻa courts be guaranteed in the constitution it24 a session of the constitutional committee by offering an argument that wouldKorkut continue further elucidated to be used the regularly demand on for any the occasion application the issue of Shariʻa was raised; law at if Islam is a recognised religion, then its system of law must also be recognised, i.e. Shariʻa. To the objection that a national constitution was no- graphplace for on areligions provision or on in athe particular paragraph form on of courts, court, butKorkut we arewas looking clear: “Well, for a guaranteeour issue regarding that will make the Shariʻa it impossible courts tocan accept be tackled in law in the either viewpoint the para advocated here among us moments ago by the former justice minister of Montenegro.”25 Given the approach taken by the civilian Muslim representatives in

Corfu conference proved particularly prophetic. Advocating the view that allthe religions, constitutional including committee, the Muslim a statement one, should made be on by an Nikola equal Pašić footing, at thehe from the governmental point of view, it should not be a problem.”26 said, “Their religion is also their civil law. This may cause difficulties. But

Marko Trifković, the Minister for preparations for the constitutional assembly,22 Ibid., III, also 9. declared on the proposed addition to article 70. In his view, 23 Ibid. Ibid., 11. 25 Ibid. 2624 Jugoslovensko pitanje i Krfska deklaracija 1917. godine,

Dragoslav Janković, Belgrade, 1967, 275. 53 Fikret Karčić / Shari'a courts in Yugoslavia 1918-1941 should be given a constitutional guarantee, but it could not take effect im- mediatelythe Shariʻa since courts there should would behave considered to be consultations national within courts government. and Muslims 27 otherAs proposals the JMO deputiesfaced a highly to the uncertain Constitutional destiny. Assembly Anxious were to secure in opposition the nec- essaryat that majoritytime, the to constitutional pass the Constitution, guarantee the for Radical-Democratic the Shariʻa courts and coalition their - withinentered the negotiations Constitution with itself, the theJMO other parliamentary for execution party. by During the government. these nego28 tiations, the JMO deputies set two types of conditions: one for integration- visions on the compulsory teaching of religious education in primary and Provisions on religions in the spirit of the JMO draft of the constitution, pro alcoholism, the protection of property, and a law on proportional represen- tationsecondary were schools, introduced the institutioninto the Constitution. of the Shariʻa After courts, a certain the suppressiondegree of com of- promise on both sides, agreement was reached on March 15, 1921. The

PašićAs government early as April was 1, 1921,committed the Minister to, amongst for the other Constituent things, Assemblyintroducing told a aprovision session of on the Shariʻa Constitutional courts into Committee the Constitution. that the question had been resolved courts and that there was now agreement between the select committee and after the proposal by the Muslims on the constitutional provision on Shariʻa

29 the MuslimsThis formulation to introduce differs a provisionfrom both intothe provision the Constitution in the Draft that Constitution read “state Shariʻa judges will rule on family and inheritance matters for Muslims.” well as leaving out the part about conducting wardship duties and the regis- proposed by the Yugoslav Muslim Caucus and that of Muftî� Mahmutović. As courts.” According to the members of the Constitutional Committee, his changeters, it alsoin styling uses was “state intended Shariʻa to judges” emphasise instead that of this “state was Shariʻa not an (spiritual) independent, separate court, but rather that is a section of the civil courts in which 30

Shariʻa judges exercised Shariʻa jurisdiction (J. Radončić, F. Kurbegović). In the discussion following Minister Trifković’s proposal, entirely- new positions were expressed. Most speakers opposed giving the Shariʻa courts SB. jurisdictionRUO, III, 10. over matters of property. Deputy Pavle Č�ubrović sug 28 Cf. A. Purivatra, op. cit., 86. 2927 SB. RUO, IV, 5. 30 SB. RUO

, IV, 7.

54 Ch. II / The Mandatory Character of Shari’a Law and the Institution of State Shari’a Courts

remain the responsible instance for religious questions only, while in all othergested matters a new wording jurisdiction for the passes amendment to the civil to article courts.” 70:31 “The Shariʻa courts have made them very similar to the spiritual courts of the other recognised confessions,Removing which questions would ofhave property been more from acceptable the Shariʻa to courts’ some at remit least would of the deputies on the Constitutional Committee. Amongst those who voiced sup- - 32 It was also feared that the special courts that the proposed consti- tutionalport for suchprovision a solution would were produce Jovan wouldJovanović, separate Jovan theĐonović, Muslims and fromŽ�ivko theJo vanović. rest of the Yugoslav population (J. Đonović), or even put them in a privileged position (Miloš Moskovljević). The socialist Etbin Kristan spoke against the theyconstitutional were invoking guarantee since itfor would the Shariʻa be impossible courts, warningto accept the that delegates there should that by accepting the annex to article 70 they were betraying33 the national ideal be different rights and systems of law in a unified state. it wasOn self-evident the other hand, that the some matter deputies of marital from disputesoutside theand JMO inheritance did support was athe matter constitutional for a Muslim guarantee religious for judiciaryShariʻa courts. and was Jovan an Radonjić integral partstated of that the Muslim religion. To deny these rights to Muslims was to be intolerant.

OttomanDeputy Radonjić empire ineven the said16th that: “Ifth wecenturies,” were to asoppose the Serb the Orthodox proposal Pafor- theretriarchate to be had Shariʻa then courts,been not we just would the largest be being spiritual more intolerantcentre, but than also the major place of judgement. and 17 34 Milorad Vujičić explained the retention of- entialShariʻa courts, courts and on that the groundsas such the that proposal it could should be viewed be accepted. as the Muslims35 Ljuba agreeing that the Shariʻa courts should hear inheritance cases as prefer sovereigntyJovanović offered by recognising additional a argumentsparticular rightfor accepting or form theof law, constitutional nor was it denyingprovisions national on Shariʻa and governmentalcourts. He said unity that bythe recognising state was not differences giving up that its

Muslims and that this should be taken into account. He pointed out that, really did exist. It was clear that Shariʻa law had a special significance for 31 SB. RUO, IV, 5. 32 SB. RUO 33 SB. RUO Ibid. , IV, 6-7. 35 Ibid. , III, 7. 34 55 Fikret Karčić / Shari'a courts in Yugoslavia 1918-1941

Kingdom of Serbia and that this had been a major, if not the only reason forup untilthem 1912-3, emigrating. Muslims To avoid lacked that the happening right to apply in 1912 Shariʻa and 1913,law under a decree the

- had been issued accepting Shariʻa family and inheritance law and leaving givenit up to rise the to muftî�s differences to deal between with legal them, issues such accordingly. provisions Since could the not popula just be donetion of away the Kingdomwith the strokeof SHS of had a pen. lived He under proposed different accepting influences the provision that had respect for the Muslims.36 on Shariʻa courts with the hope of promoting peace in the country and at the April 1, 1921, session of the Constitutional Committee. MembersThe amendment of the Constitutional on Shariʻa courts Assembly was passed addressed by a majority the issue of subse votes- quently on two occasions; once during the preliminary discussion on the Draft Constitution during the second half of April 1921, and once during the special session on the section on the judiciary on June 14, 1921. to layThe bare first the occasion political sawcircumstances not just legal that objections led to such in provisions principle being made includedagainst the in theconstitutional Constitution. guarantee Etbin Kristan for Shariʻa called courts, it political but alsohorsetrading, attempts out of a conviction that the result would have been quite different even a few months earlier, before the Muslims joined the government. Deputy 37 a single objection from his party regarding the courts and of only includ- Vojislav Lazić accused the government of failing to take into account even- ernment today.”38 - ing the provision on Shariʻa courts “because there are Muslims in the gov costs of their existence Rista andĐokić, operations a deputy should for the be Agricultural borne by Muslims Workers’ only. Par39 ty fromBy theBiH, time proposed of the special that if hearingthere did on have the section to be Shariʻa on the courtsjudiciary, then it was the would pass in the form accepted by the Constitutional Committee (with re- clear that the provision on Shariʻa courts, formulated as item 3, article 109,

Muslims.”)placement ofThe the socialist phrase deputy“Shariʻa Milan judges” Korun by “Shariʻa called thejustices”, introduction so that itof now the provisionread: “state a formShariʻa of justicesmedieval shall currency rule on used family to pay and for inheritance the purchase matters of Mus for- 36 SB. RUO, IV, 8. Stenografske beleške Ustavotvorne skupštine Kraljevine SHS (henceforth SBUS), I Belgrade,

3837 SBUS, I, no. 8, 23. 39 SBUS,1921, no.I, no. 7, 13,14-15. 6.

56 Ch. II / The Mandatory Character of Shari’a Law and the Institution of State Shari’a Courts lim votes for the Constitution, noting ironically that given the concessions - lims, Serbs, Croats, and Slovenians.” - madetroducing to the a provisionMuslims, theinto state the constitution should40 now whichbe called properly the “Kingdom belonged of in Mus the Law on the organisation of the courts Todorand on Lazarević the establishment pointed out of thatjudicial in that it was moreover out of place as a constitutional provision because it authorities created an exception, for “reasons known to the Assembly,” The gov and- 41 would hinder any reorganisation or closure of the Shariʻa courts. musternment stand.” position He pointed was put out by that the just Justice as there Minister, had been Marko reasons Đuričić, for retainingwho said “Gentlemen, I cannot claim to be thrilled with the Shariʻa courts. But this more urgent now, when Bosnia had joined the newly united state and that certain types of Shariʻa court in Macedonia in 1912 and 1913, Article so it was 109 even was passed, with minority dissent, that same day. 42 the Shariʻa courts would just have to be allowed to evolve. - law wasThe madehistory part of theof the constitutional state legal system guarantee in Yugoslavia for the Shariʻa at a time courts when al alows process us a hadconsiderably already begun greater in thedegree protector-country of insight into ofthe Islam reasons that Shariʻa would lead to secularisation of both state and law. We have already seen that the obligations under St. Germain did not have to lead to mandatory applica- andtion legalof Shariʻa reasons law that on producedthe Muslim this population, outcome. and certainly not through national Shariʻa courts or justices. As mentioned, it was internal political

From the very beginning, Shariʻa law had represented part of the new state’s legal and political reality. On the one hand, there were existing Shariʻa courts in BiH with forty years of tradition behind them within the- domframework of Serbia. of aThe typical new state Christian made state, retaining just asthe there existing had legal been situation Shariʻa andcourts institutions in Montenegro a matter and of muftî�ates principle, on particularly the territory in the of thesphere former of private King - context.law. The Restingunbroken on existence purely legal of national considerations, Shariʻa courtsone could in BiH retain and the naap- plication of Shariʻa law in other areas took on a certain significance in this- ganised by law to render them equivalent to the spiritual courts or were tional Shariʻa courts wherever they already existed until they were reor

40 SBUS, I, no. 44, 3. 41 SBUS, I, no. 44, 5. 42 SBUS, I, no. 44, 8.

57 Fikret Karčić / Shari'a courts in Yugoslavia 1918-1941

practicalabolished. scope Legal of reasons their validity were, wouldtherefore, have not been sufficient uncertain. in themselves to requireOn the making other Shariʻa hand, lawthere mandatory was the social throughout and political the state, reality while of the1.3 million Muslims for whom the strongest call imaginable to political action

43 was the watchword “the faith is under attack.” To have neglected Shariʻa extremelaw or abolished danger for the the Shariʻa faith. courtsThe risk where of the they uncertain already consequences existed and were this couldan “established produce was right” not would something have beenthe government an alarming structures sign of warning could ac of- cept, counting as they were on binding the Muslims to them and being able to rely on their votes. Expressing the mood44 of the majority of the Muslim population, the

JMO deputies formulated and expressed the demand for a constitutional wasguarantee to be implemented. for the Shariʻa courts. This demand allowed them to avoid a separate debate on the mandatory character of Shariʻa law and on how it - heritanceThe constitutional matters. provision on the Shariʻa courts was worded to give ShariʻaHere law one the should character note of that an theimperative bourgeois norm Muslim in Muslim politicians family demand and in-

Assembly where intimately convinced that this was an actual requirement foring thea constitutional Muslim part guaranteeof the Yugoslav for the population. Shariʻa courts This at is theclear Constitutional from S. Kor- - stituent Assembly on April 21, 1921, when he said, kut’s statement to the general debate on the Draft Constitution in the Con

authority, given expanded powers, this is a great plus for us, one which counts When we know this too, that we are going to get Shariʻa courts as a government with us for more than the three hundred million to deal with agrarian reform in

this and if there are those amongst you who do not, we appreciate that too and Bosnia, about which Mr. Risto Đokić has spoken at such length. We appreciate consider it a great success and hold it to be a major concession. 45

Ženidbeno pravo, 96). 43 According to the official census in 1922, there were 1,337,687 Muslims living in Yugoslavia. (E. Sladović, 44 Krsta Marić, a judge from Bosnia, would later write that the passage on Shariʻa justices was concessionintroduced tointo the the Muslims Constitution with a toview “render to reconciling the state themmore toacceptable the state andto the returning Muslims them and tostop Serbdom.” them playing (Novi theŽivot Turkish, Belgrade, card December once and 22,for all,”1923). while “allowing Shariʻa courts was a

4558 SBUS, I, no. 13, 27-28. Ch. II / The Mandatory Character of Shari’a Law and the Institution of State Shari’a Courts

Many authors have accorded the JMO the major role in gaining the constitu thetional incorporation guarantee for of itemthe Shariʻa 3 in article courts. 109, Milan which Bartoš is what wrote made that the the applica JMO’s- discipline during voting on the St. Vitus’ Day Constitution was what led to the same opinion, viz. that the Muslim representatives46 helped the govern- tionment of to Shariʻa pass the law constitution mandatory and for theirall Muslims. service was Č�edomil rewarded Marković by introduc was of- intentionally or not, this placed an obstacle in the way of introducing a gen- eraltion andof the mandatory provision form on Shariʻa of civil marriagecourts. According and so the to separation this author, of whether law and religion in matters of marriage and inheritance that it would only be possible to remedy by constitutional amendment or revision. The position of 47 the publicist Mustafa Mulalić is of interest here, as he argued against the JMO Theand religious matters approach being organised taken by the on Muslima religious caucus basis, saved, writing, in their view, the Sha-

an equal religion recognised consistently both Islamic inheritance and marital riʻa law and the Shariʻa courts. The constitutional provision recognising Islam as law, which was a major success for preservation of Islamic religious traditions. 48 Against this, certain other Muslim authors made no mention of the political - religion.factor in securing the constitutional guarantee for the Shariʻa courts. A. Bušat lić claimed49 that it was the result of the public legal recognition of the Islamic50 According to this Shariʻa law expert, the application of Shariʻa law werewas the obviously result of not “a social an immediate need on the consequence part of one ofsection the public of our legal people.” recognition Theof Islam. state Not Shariʻa merely courts had andthe Christianthe mandatory religions character had such of recognition, Shariʻa law but they had, in the case of Orthodoxy, even been favoured. They had not received the right to apply their religious law via state courts, however, law.51 certainly not in anything like the same degree as was allowed to Shariʻa M. Bartoš, Obaveznost šerijatskog prava, 500. If the implementationPolitičko pravno of pitanje Shariʻa religije law did express a social need on the 46 Orijent na Zapadu, Belgrade, 1936, 185. 47 C�ed. Marković, , Belgrade, 1924, 13-15. - 48 Mustafa Mulalić, 49 Gajret“In so ,far 1928, as the 156. state recognise the Islamic faith and its full existence, then the Shariʻa co 50 urts must be tolerated as the external sign of that toleration.” A. Bušatlić,Novi Život Š�erijatski 26 sudovi, 51 areA. Bušatlić, many institutions “Š�eriatski sudovi in the iNew šeriatske and Old sudije Testaments, (malo razjašnjenja),” in the Talmud, which, if ,they I, 1924, were 4. stillE. Kristan in practice, drew attentionwould change to this our in currentthe Constitutional circumstances Assembly, greatly. saying But you “… Ionly know make that an there ex-

ception in cases when it the Muslim gentlemen who require it.” (SBUS, I, no. 7, 14). 59 Fikret Karčić / Shari'a courts in Yugoslavia 1918-1941

authorspart of Muslims, preferred it nothad to had emphasise to find political the political expression moment first in and their meeting writings it had required a political fight. We should look for the reason some Muslim- ments drawn from international and national law rather than from transi- toryas an political intention compromise. to defend the state Shariʻa courts as institution using argu

2. The Legal Consequences of Establishing State While implementing the Shariʻainternational Courts obligation to allow the use of - - sons.Shariʻa It law,had twothe governmentother options: of tothe hand Kingdom over all of mattersSHS decided relating retain to Muslim the in personalstitution ofstatus the state and Shariʻafamily lawcourts to theas they regular existed courts, in BiH which for obvious would then rea had been done in the old Kingdom of Serbia.52 rule on the basis of Shariʻa, or to leave it all in the hands of the muftî�s, as have been quite like the institution of the spiritual The courts first was of the unacceptable recognised because the regular courts had no expertise in Shariʻa. The second would notreligions accepted, and wouldhowever, have because been aof more the position economical held option, by the ascivil the political muftî�s representativeswould have been of religious the Muslims. officials and justices at the same time. It was

According to interpretation no. 9324/922 of the General Session of- stance,the Court justices of Cassation of uncontested in Belgrade, actions, dated or judgesJanuary in 1,chancery; 1923, item it envisages 3 article special109 envisages courts toa departure judge Muslims. from 53the regular remit of the courts of first-in The application of a special body of law based on the teachings of Is- lam and the existence of special courts for Muslims represented remnants of the concept of Islam as a model of society. The presence of religiously inspired law in the civil legal sphere of social relations hindered the process of reducing Islam to a purely religious phenomenon, limiting it to the private life of the individual.

52 Cf. M. Begovitch, De l’Evolution du Droit Musulman en Yougoslavie, 111-112. 53 Arhiv, no. 3/1923 (vol. VI/XXIII), 235. “Tumačenje tač. v. g. i d čl. 5 Izmena I dopuna u zak. o ustrojstvu sudova,” 60 Ch. II / The Mandatory Character of Shari’a Law and the Institution of State Shari’a Courts

Under the interpretation and implementation of item 3, article 109, Muslims were supposed to deal with issues of personal status, family and In practice, the question of whether a Muslim of liberal views could reject54 the application inheritance law, and endowments under Shariʻa law. answer.55 In exceptional cases, such persons could contract civil marriag- esof Shariʻawhere andsuch the an authority institution of wasthe Shariʻaavailable courts (Vojvodina) had received or where a negative they were allowed to in cases of necessity (Slovenia and Dalmatia). In other cases, the only way for a Muslim to avoid subordination to the authority of

processthe Shariʻa of secularisingcourts was to the leave Orthodox Islam. world in the third decade of the 20th The St. Vitus’ Day Constitution, which S. Troicki saw as part of the Rome”, the abolition of the secular powers of the Istanbul patriarchate, thecentury abolition (the overthrowof the system of the of stateRussian religion monarchy in the as Kingdom the “fall ofof SHS,the Third etc.), had, through its adoption of a mandatory religious oath to the king and his - ciple of freedom of religion and conscience and the rule that civil and po- liticalministers rights and were the guaranteeto be enjoyed for Shariʻaindependently courts, limited of religious its own confession. stated prin56 for having them throughout the state. Any pre-existing regulations in con- The constitutional provision on the Shariʻa courts was the legal basis itflict took with eight it were years suspended to pass a lawonce on the the constitution principle contained entered into in article force. 109. The Thesignificance situation of that the prevailedconstitutional was consideredguarantee is temporary. not affected by the fact that History rewarded the hope of the bourgeois Muslim politicians; the constitutional guarantee would ensure the institutional continuity of the state, item 3, article 109 acted as a breakwater to any attempts to abolish Shariʻa courts. For the entire lifespan of the liberal democratic Yugoslav - theclusive mandatory jurisdiction character of the ofstate Shariʻa. over their legal regulation, de facto establishment,One result and maintenance. of the Shariʻa In courts this way, governmental the state never character gave up was its imperithe ex- um over this important area of social life. Moreover, the possibility of ex-

ercising politicalŠerijatsko control bračno over pravo the s kratkimShariʻa uvodom courts u izučavanjegave the šerijatskog state immediate prava, Bel- grade, 1936, 2. 5455 M. Bartoš,Begović, Obaveznost šerijatskog prava, 502. 56 Političko pravno pitanje religije, 12-13.

C�ed. Marković, 61 Fikret Karčić / Shari'a courts in Yugoslavia 1918-1941

- tions that was three times greater than that of the religious community. Thisinfluence objectively in the areasqueezed of the the interpretation autonomy of and the application Islamic Religious of legal Commu regula- nity at a time when the same forces were fighting for it as it had won the constitutional guarantee for Shariʻa courts.

3. A Comparative Review of the Validity of Shariʻa Law in Yugoslavia and Other Balkan Countries countriesThe validity with of ShariʻaMuslim law minorities. for Muslims There in were,Yugoslavia of course, was not certain an isolated differ- encesissue. in Shariʻa terms law of how was compulsory also applied it towas a and limited how degree it was applied. in other Balkan First, one may note that after the First World War the application57 of legal instruments for the protection of minorities. Before that, it had been securedShariʻa law by bilateralwas guaranteed or multilateral in Balkan peace countries treaties by with means the Ottoman of international empire made by either the great powers or the Balkan states. The role of the Otto- man empire in this was only natural as the problem of the legal status of Muslim populations in the Balkans and Southeast Europe only arose with the Ottoman loss of territories in the region. The Muslim population, whose religion and customs had previously been protected by the the Ottoman empire found themselves in the position of religious minorities in liberated, newly established Christian-majority Balkan states. Moreover, as Caliph of the Muslim World, the Ottoman sovereign claimed a right to act as religious protector of Muslims living under the sovereignty of non-Islamic states. The affecting the personal status of Muslims was a sign of religious freedom. Thisprevalent is why view from of thethe mid-19time wasth century that the on application treaty provisions of Shariʻa governing law in areas the legal status of the Muslim population in Southeast Europe always included

In illustrating this problem with regard to a few issues, we shall keep to the data provided clauses on the application of Shariʻa law. - 57 aten, Moslemische Revue by Mehmed Begović. See M. Begović, Die Anwendung des Scheriatrechtes in den Balkansta (Berlin), no. 3-4/1935, 54-60. - ropäischenMore recently, nachfolgestaaten Hans-Jürgen Kornrumpf des Osmanischen has dealt withReiches,” the application Saeculum (Freiburg/Munich),of Shariʻa in Balkan countries in his “Scheriat und christlicher Staat: Die Muslime in Bosnien und in den eu

62 XXXV, h. 1 (1984), 17-30. Ch. II / The Mandatory Character of Shari’a Law and the Institution of State Shari’a Courts

The Anglo-Ottoma protect the Muslims of Cyprus. Article 1 of the annex to the agreement n agreement of June 4, 1878 obliged England to exist on the island with exclusive jurisdiction over the religious affairs of thedated Muslim July 1, population. 1878 stipulates58 A nearly that Muslim identical religious provision courts can will be found continue in ar to- ticle 8 of the agreement between the great powers and the Ottoman state inof Maythe Bulgarian-Ottoman24, 1881 which treats peace the statustreaty ofof MuslimsSeptember in areas29, 1913 ceded and by the Sublime Porte to Greece. The application of Shariʻa59 law is also guaranteed After the First World War, the international community paid special attentionGreco-Ottoman to the treatyprotection of September of religious, 14, national, 1913. and linguistic minorities through the instrumentarium of international law. A special institution was created that called for the protection of minorities. This was important because it placed international legal protections on minorities above the internal legislation of any given state. This guaranteed the continu- ance of whatever was found to be the state of affairs in relation to the characteristics. The situation guaranteed under the international instru- mentsstatus offor a giventhe protection minority andof minorities facilitated wasin preserving not subject that to group’s change special at the will of a state under whose sovereignty a given minority lived. The winners of the First World War required many smaller countries to accept the obligations regarding the protection of minorities regardless of their involvement in the war or whether or not they were a previously existing or newly-created state.60 This was done either through peace treaties, special treaties, or even via unilateral declarations on the part of certain states. The Kingdom of Serbs, Croats, Slovenes and Greece both explicitly accepted obligations under international law regarding the application of - tion of minorities signed together with the main Allied and Associated Forces.Shariʻa lawAlbania during did this the periodsame through in the form a unilateral of special declaration treaties on issued the protec when it joined the League of Nations. The declaration had the same binding force as treaty provisions. The clause that Greece agreed to in Sevres on August 10, 1920 that allowed for the application of Shari

58 Zaštita manjina 59 ʻa law (article 14) is identical to the 60 Ilija Pržić, , 71; H. Kornrumpf, op. cit., 20. naroda,”I. Pržić, op. Zbornik cit., 72. Pravnog Fakulteta u Zagrebu Budislav Vukas, “Bilješka o sudbini ugovornih odredaba o zaštiti manjina iz vremena Lige , no. 4/1978, 273ff. 63 Fikret Karčić / Shari'a courts in Yugoslavia 1918-1941 provision contained in article 10 of the treaty on the protection of minorities accepted by the Kingdom of Serbs, Croats and Slovenes. The applica- and was fo, the most part, respected during the interwar period unlike othertion of obligations Shariʻa law with was regard primarily to the related Muslim to population.the issues of61 personal status Albania issued its declaration on the protection of minorities on Oc- tober 2, 1921, when it joined the League of Nations. Item 3 of article 2 - ily and personal status of Muslims, in line with Muslim customs.”62 readsIt assomewhat follows: “Appropriate strange that measuresin its declaration will be taken of the to protectionregulate the of fam minorities Albania it cites its obligation towards its Muslim population, in- - edge that Muslims represent a majority of the population of the country.63 cludingThis was the most application likely due of to Shariʻa the efforts law, ofeven a newly-created though it is common state to joinknowl the international community with all the legal obligations normally required of other newly-formed states. Albania introduced international obligations regarding the applica-

October 2, 1921. Following the secularization policy of Turkey, the Alba- tion of Shariʻa law into its national legal system via the constitution of- tems of the other religious communities in the civil sphere when it adopt- ednian its government Civil Code on abrogated April 1, 1928. the validity of Shariʻa law and of the legal sys 64 - plied in both Bulgaria and Romania. ItsIn thevalidity period for betweenthe Muslim the population two world of wars, Bulgaria Shariʻa was law based was on also article ap 5 of the Treaty of Berlin, the Bulgarian-Ottoman peace Treaty of Septem- ofber December 29, 1913, 15,and 1891, the provisions (articles 1222of articles and 1223)49-57 ofand the the Treaty Law ofon Neuilly- Inheri- sur-Seine of November 27, 1919. The Bulgarian Procedure for Civil Suits tance61 The of equality December of Muslims 17, 1889 under (articlecivil law with 344) citizens implemented of other religious these confessions obligations was infringed by legal regulation 1366/1938, which denied them the right to ownership of property or even to manage older houses. The autonomy of the waqf administration system

Arabia 62 was desiccated by legal regulation 2345/1930. (See “Muslims in Greece, the forgotten 63 According‘alien elements,’” to the 1930 census, (London), Muslims no. 35 then (July made 1984), up 69%75-76. of the total population of Alba- nia.The Seetranslation the Encyclopaedia follows the Britannica text given, byvolume Vladimir 1 (1965), Đuro Degan512. (op. cit. 91). Revue des Etudes Islamique 64 For more on this, see G. H. Bousquet, “NoteIntroduction sur les réformes a l’étude de du l’Islam droit comparé Albanais,”, Paris, 1938, (Paris), IX (1936), 399-410; idem, “Un exemple de laï�cisation du droit musulman – Le code civile albanais, “ in III – IV, 643 – 646.

64 Ch. II / The Mandatory Character of Shari’a Law and the Institution of State Shari’a Courts

by recognising Muslims’ right to have their marital and inheritance affairs bindingconducted in nature;under Shariʻa any adult law. Muslim Any hearings could request on issues that in his these case areas be dealt fell withwithin under the remit civil lawof the in Muftî�.front of Shariʻa a regular law incourt. the area of inheritance was not The situation was practically identical in the Kingdom of Serbia. In- ternational obligations and the absence of a civil form of marriage resulted in the Islamic religious authorities (muftî�s) having authority in matters of marital law. When it came to inheritance, oneGrand could Muftî choose the Muftî� and Shariʻa law or the regular courts and general civil law. The Muftî�s were government officials.waqfs The ’s seat was in lawSofia, of and the Hanafîhe acted madhab as a Shariʻa in its traditionalcourt of second form. instance. They showed The remitnone of thehis office included the supervision of . The Muftî�s applied the Shariʻa- slavia. The French orientalist G. H. Bousquet visited Yugoslavia, Albania, reforming tendencies that were evident in the Shariʻa judiciary in Yugo

Firstand Bulgaria World War in 1936.that raised He noted the minimum that the onlyage for significant Muslims changegetting mademarried to Shariʻa law in Bulgaria was a decision by65 a committee of muftî�s after the to 18 for the groom and 17 for the bride. to protectThe application religious and of Shariʻa national law minorities to the Muslim on its population territory. The Romania responsi was- based upon article 44 of the Berlin peace treaty, which required the state responsiblebility for applying for hearing Shariʻa Muslim was governed family disputes. by laws Thisof March remained 30, 1886, the caseand untilJuly 26, April 1921. 3, 1935 The Shariʻawhen changes justices were appointedmade to the by existing the state Law and on were the organisation of the courts - tion transforming qâdîs into advisers of the regular civil justices. Religious administration and the traditional. This did interpretationaway with the ofspecial Islamic Shariʻa religious jurisdic reg-

66 ulationsOne remainedmay conclude the responsibilitythat the international of the Muftî�ate, obligations based to allowin Constance the ap- since 1878. attain the goal which was to preserve the personal autonomy of Muslims inplication the Balkan of Shariʻa countries law werein the not period in themselves between World enough War of Onea guarantee and World to War Two. The destiny of these obligations largely depended upon how

65 The Muslim world 66 G. H. Bousquet, “Islam in the Balkans,” , XXVIII (1937), 69. H. J. Kornrumpf, op. cit., 28. 65 Fikret Karčić / Shari'a courts in Yugoslavia 1918-1941 numerous the Muslim community in a given state was, its degree of political organisation and commitment, and the actual course of internal political events in the state involved. Moreover, following the collapse of the Ottoman Empire and the secularisation of Turkey that followed, there was - suring that the obligations were actually being respected. While legal nocircles longer in Europe a significant were Musliminterested state in theor institution issue, in the with Balkan an interest67 states, inmany en important Muslim state itself had abandoned it. wonderedThe second what theconclusion point of to maintaining be drawn from Shariʻa this law comparative was at all ifreview the most re-

qâdî - cialslates (tomuftîs the fact that the application of Shariʻa law in the Balkan states was theentrusted role of to legal different advisers bodies: to private Shariʻa individuals justices ( and s)even and to religious government offi ). Under the authentic Islamic concept, the Muftî�s could play- didauthorities. not have The any application special religious of Shariʻa organisations law, however, because was an state exclusive and reli re- gioussponsibility bodies ofwere Shariʻa interconnected. justices. In IslamicallyIt was only organised after the end states, of Ottoman Muslims rule in Southeast Europe that Muslim groups began to organise as reli- -

Muslimgious communities. population and Accordingly, acting as thethe highestrole of religious-administrativethe Muftî� took on new con (i.e. tent; he became responsible for applying the Shariʻa law on behalf of the- lian churches.” ecclesiastical) authority in a given area “not unlike a bishop in Episcopa- ed a form of continuity in the application of this law by judicial bodies that reachedThe applicationback to the of period Shariʻa oflaw Islamically through state organised Shariʻa courtsstates. representThe state

- cationShariʻa of courts both materialemphasised and the procedural civil-legal law. and not the religious function of Shariʻa, and they offered greater legal guarantees of the rule-based appli

The Congress of European Moslems held in Geneva from August 12 to September 5, 1935, discussed the possibility, some 15 years after agreement of the Treaty on the protection of 67 minorities, that this instrument of international law might also be used for the protection of Muslim minorities. It bore no practical fruit, in contrast to the cases of other religious and national minorities.

66 CHAPTER III The Structure and Functioning

Operations of the Shariʻa Courts under heightened political circumstances. The legal order of the new state wasThe constitutionalbuilt on the foundations provision onof severalShariʻa differentcourts implementationtook legal traditions from place the various regions that comprised it. courts under the law, provide them with expert staff, and make of them institutionsIn just over of unquestionable two decades, attempts legitimacy were vis-à-vis made both to organise the personal the Shariʻa legal affairs of Muslims and the legal order of the state. Many different obstacles loomed over the implementation of the provisions arising from article 109 of the Constitution. These obstacles included: frequent changes of government; different positions taken by civilian Muslim political representatives regarding political life in the state; the consequent different attitudes taken by ruling circles towards the Muslim population and its - institutions; the objective condition of Shariʻa law itself; and the short necessarilycomings of theraises Shariʻa questions. judiciary. How did the organisation of these institu- tionsAny progress investigation and what of the were structure the major and factorsoperations affecting of the theShariʻa form courts they theyultimately educated, took? and What what was was the their place professional, of the Shariʻa social courts and in political the judicial sta- system of the Yugoslav state? Who were the Shariʻa justices, how were subject to their jurisdiction? tus? How did the Shariʻa courts operate and what did it really mean to be

67 Fikret Karčić / Shari'a courts in Yugoslavia 1918-1941

Two phases1. can Establishing be discerned in the the process Shariʻa of determining Courts in law the or-

ganisational norms and jurisdiction of the Shariʻa courts in Yugoslavia:Law on es- tablishingthe first one the was Shariʻa from courts 1918 toand 1929 on Shariʻa and the justices second on one March lasted 21, from 1929. 1929 to 1941. The turning point in this process was passage of the

a) The 1918-1929 period

The major global characteristics of this time period were its retention of the - thestatus state. quo We in willapplying now look Shariʻa in more law and detail the at attempts both these made characteristics. to bring the or ganisation of the Shariʻa courts under a single law for the entire territory of

Legal regulation of the Shariʻa courts - abling act for article 109 naturally arose. OnceAt the an St. annual Vitus’ assembly day Constitution held on hadOctober been 23, adopted, 1921, thethe issueAssociation of an en of

Law on Shariʻa courts for presentation to the relevant government authori- Shariʻa justices in Bosnia and Herzegovina elected a committee to draft a ties. The committee members included justices of the Supreme Shariʻa Court in Sarajevo (Jusuf-Zija Midžić, Salih Mutapčić, and Ali-Riza Prohić), as well as judges from the district Shariʻa courts (Hilmi Hatibović, Abdulah Bušatlić, Hasan Kadić, Salih Udović, and court clerkLaw Muharem on Shariʻa Kulenović). courts.1 It produced a draft law in 24 points which it presentedLaw to on Fehim Shariʻa Kurbegović, courts cardinalthe JMO deputypoint intasked our withprogramme.” working2 on The a draft party did not, however, enjoy The JMO had in fact declared passage of a “a - close cooperation with Nikola Pašić’s administration following passage of the St. Vitus’ day Constitution. The government put off meeting its obliga- tiestions made under continued the agreement support reached for the government with the JMO conditional before voting on those on ob the- Constitution. During the government crisis of December 1921, JMO depu 1 - njih dana,” El-Hidaje (Sarajevo), no. 10-11 2 PravdaAbdulah Š�kaljič, “Osvrt na rad staleške organizacije šeriatskih sudaca od osnutka do današ /1943, 313. 68 , June 14, 1923. Ch. III / The Structure and Functioning of the Shari’a Courts

Law on Shariʻa courts ligations being met. One of those obligations was the “passage of a - manding the passage for the kingdomof one law as that a whole.” was fully The in JMO agreement newspaper with rejected the na- tionalobjections constitution of blackmailing and therefore the king’s could government, hardly be considered pointing blackmail.out that de3

Protocol to the Agreement on extension of the coalition and committed to passingThe it Pašić in the administration current session: accepted this condition under item 2 of the

A Law on Shariʻa courts consistent with art. 109, section 3, of the Constitution to be presented simultaneously with a procedural law on organisation of the courts. Until such point as this law is passed, the provisional law governing the courts in the southern regions will be extended, with an annex to the effect that the pre-

jurisdiction envisaged under the constitution. Appeals against their judgements sent muftî�s will carry out the tasks of the Shariʻa courts within the scope of the

will be heard by a Supreme Shariʻa Court to be established under the court of 4first instance in Skopje, after the model of the Supreme Shariʻa Court in Sarajevo.

Law on the organisation of the courts was Asamended with the with JMO’s provisional other conditions, injunctions this (article one was 5, itemsonly partially v, g, and met. d) dealing On January 30, 1922, the - jak, Kosovo, and Macedonia).5 withUnder the application these injunctions of Shariʻa in law article in so-called 5, the government southern Serbia did what (the Sanwas realistically possible in the short term thus giving a legal footing to the situation established under the Provision for the organisation of the courts and on procedure in the southern regions appeals of the sort envisaged in the Protocol was established in Skopje. In . No Supreme Shariʻa Court for shoredthe end, up; jurisdiction instead wasof moving given to towards the Supreme the establishment Muftî�ate in Belgrade. of national The provisional system for applying Shariʻa law through the muftî�s was thus- - Shariʻa courts in line with the constitutional guarantee, a process of build ing new structures for which establishing a Supreme Shariʻa Court in Sko- ingpje couldpassage have of thisrepresented arrangement. a first He step. was Hasan generally Rebac, responsible department for head ensur of- the Muslim office in the Ministry of Religions, played a key role in ensur 3 A. Purivatra, op. cit., 102.

5 Službene Novine - 4 tersIbid., include 421. Mehmed Spaho, the Minister for Trade and Industry). , no. 37—Va, February 18, 1922. (The signatories for the Council of Minis 69 Fikret Karčić / Shari'a courts in Yugoslavia 1918-1941 ing that Islamic Religious Community affairs in the southern regions were the management of waqf property and the conduct of the various forms of religiousorganised life. to 6allow state bodies to exercise full and direct influence over There were grounds for expecting work on drafting a Law on Shariʻa courts

to be accelerated, particularly as it was considered “a non-political- issue.”ernment On delays February in meeting 1 and 2,its 1922, obligations however, on taxationthe ministers policy from and thethe agriJMO- ranksculture (M. budget Spaho for and Bosnia H. Karamehmedović) and Herzegovina. had The already issue resigned of continued over gov co- 7 operation with the government split the JMO deputies and led to a new party being formed, the Yugoslav Muslim People’s organisation, with a separate Yugoslav Muslim People’s Caucus. Two of its members were nominated to replace the dismissed JMO ministers. the contestThe JMO’s with national the pro-government congress was factionheld on for June support 15, 1922 amongst and supported the Mus- Dr. Spaho’s faction thus confirming the party’s transition to opposition. In- ernment coalition the different levels of taxation in different provinces, the conditionlim electorate, of Muslims JMO agitators in the Sanjak, listed amongand the their government reasons fordragging leaving its the feet gov on 8 failedintroducing to win Shariʻa even a courts single forseat Muslims in the March in the 18,southern 1923 elections. regions. No matter As a result of all this, the pro-government group (“the right-wingers”) rejectedhow much and these questions results or strengthened interventions theput JMO,to individual they could ministers do very for little the mostfrom partthe opposition ignored.”9 benches as its deputies’ proposals “were regularly The issue of a Law on Shariʻa courts had remained tabled. As it took part of their political calculations for both the government and civilian Muslimon increasing politicians, significance regardless for of the their Muslim own tactical public, and it became political an attitudes. integral A survey on drafting a Law on Shariʻa courts was conducted in August 1923 at the court department of the Bosnian and Herzegovinian regional administration. Participants included B. Eisner, the president of the Sara-

6 Hrvats- jevo kiSupreme dnevnik Court’s Council, Osman Nuri Hadžić, Department Chief in Cf.Pravda M. Hj., February (Muhamed 2, 1922.Hadžijahić), “Hasan Rebac i muslimanska vjerska autonomija,” 8 A. Purivatra, (Sarajevo) op. cit., 122. no. 1686 (1941). 97 Ibid., 158.

70 Ch. III / The Structure and Functioning of the Shari’a Courts

Džemijjet, was also se- thelected Ministry for inclusion of Internal in the Affairs, survey Fehim but did Kurbegović, not in fact takea judge, part. and10 Ibrahim Sarić,The a Shariʻa survey justice. team Kenaninterviewed Zija, a thedeputy Secretary of the of the Association of prepared under the auspices of the Association. According to an article by himShariʻa published justices, at A. the Bušatlić, time, any who Law presented on Shariʻa them courts with would a draft have of the had law to jurisdiction, and 3) related practical matters.11 cover: 1) the establishment and organisation of the Shariʻa courts, 2) their

Under this proposal, the Shariʻa courts would have been government- bodies operating simultaneously under Shariʻa regulations and national havelaws/provisions, had two levels so longand beenas the independent latter were notbut infallen conflict generally with theunder funda the mental principles of the Islamic faith. The Shariʻa court system would murâsala from the Grand Muftî who would in turn have been provisioned withpurview a manshūra of Justice or Ministry.delegation Judges of authority would from have the received Caliph . aThe licence existing or out across the state. Their jurisdiction was to be expanded to include the keepingShariʻa courts of registry in Bosnia records and and Herzegovina administration were of to the be property retained of and wards rolled of petitioning parties (including the authority to pass prison sentences and the court. The Shariʻa courts would have had disciplinary authority over be implemented automatically on the basis of an incorporated executive issue fines), while their rulings, once they had entered into force, would and waqf law would remain unalterable and sacrosanct. clauseThe without survey anyteam need did itsfor work further quickly. confirmation. The next stepShariʻa came family, from probate, a group of civilian Muslim politicians who were close to the government at the time. Deputies of the Džemijjet who had refused a couple of years earlier to - icals,” themselves made any support to the government beyond December 1923cooperate conditional with the on JMO passage deputies of a on Law the on grounds Shariʻa that courts the, latterthe autonomy were “cler of endowments (waqf), the opening of religious schools, resolution of the agrarian question in the southern regions, guarantees of public safety, and so forth.12

10 Pravda, August 12, 1923. 11 Arhiv, no.

12 A. Purivatra,Bušatlić, “O op. ustrojstvu cit., 162, fn.i nadležnosti 138. šerijatskih sudova u Bosni i Hercegovini,” 2/1923. (vol. VII/XXIV), 116-124.

71 Fikret Karčić / Shari'a courts in Yugoslavia 1918-1941

At the 13th the Provision on regular the organisation session of and the scopeNational of the Assembly Shariʻa heldcourts on in January Bosnia and23, 1924, Herzegovina the Justice of October Minister 30, put 1883 forward to the a proposalterritory forof thea law entire to extend state. The surprise was that, instead of a draft for a new law, the provision from 1883 was being put forward despite its having been amended multiple times already. It also had received extensive criticism of its shortcomings in expert circles. It was almost as though, under the pressure of demands - dence in tried and tested arrangements than in new steps. to regulate the Shariʻa courts, the government in the end had more confi- compriseThe proposal the second emphasised and ultimate that instance. the district Reorganisation Shariʻa courts would would require exer cise first-instance Shariʻa jurisdiction, while supreme Shariʻa courts would - Shariʻa courts to be formed in every district with at leastLaw 4000 on officialsMuslim andinhabitants. other government There would employees be supreme in the Shariʻa civil service courts. in Sarajevo and Sko pje. Shariʻa justices’ rank and salaries would follow the - posal.13 TheThis full legislative text of the proposal 1883 provision to extend was legislation attached fromto the one Minister’s part of pro the country to the rest, was forwarded under parliamentary procedure for consideration by the legislative committee. 14

At a plenary session of the legislative committee15 onIt seemed January as 28, though 1924, a subcommitteelaw might be voted was selectedthrough toin examinea matter theof days. legal proposal on the Shariʻa courts,Crises the andJMO political member life, being however, Halid-bey or as Hrasnica. a journalist with Pravda put it, the Law on Shariʻa courts.16 Although there was a draft law on organising “wranglingthe regular bycourts the partiesbefore overthe assembly other matters at the of time, state,” the prevented fact that votingthe draft on Law on Shariʻa courts was not taken into consideration in parallel provided the JMO with an opportunity to direct sharp criticism at the government. adjournedThe Pašić and government’s regular sessions crisis were of thenot firstheld half again of until1924 October. culminated Ljubo in the suppression of parliamentarianism. On 27 May, the National Assembly 13 Pravda Stenografske beleške Narodne skupštine Kraljevine Srba, Hrvata i Slovenaca (SB NS), redovan sazlv za, January1923-1924, 24, I,1924. 1514 Pravda 16 Pravda Belgrade 1924, 272. , January 29, 1924. , May 17, 1925.

72 Ch. III / The Structure and Functioning of the Shari’a Courts

Davidović formed his administration on 27 July with Democrats, dissident preventedRadicals, members serious work of the on Slovenian a Law on ShariʻaPeople’s courts Party,. and members of the JMO. This administration’s short lifespan (dismissed on October 15, 1924)

The JMO joined the government of Veljo VukičevićLaw on inShariʻa April courts1927. .This In period corresponds with the issuing of an order by the Justice Minister17 to B.new Eisner Law onto carryShariʻa out courts a final, rather revision than of just a draft extending the 1883 decree. our view, Eisner’s activities played a key role in the shift to drawing up a Herzegovina, the Grand Muftî - During this period, the Association of Shariʻa Justices in Bosnia and passage of the law. , the Supreme Muftî� of Serbia, and JMO dep uties and ministers all made representations with the Justice Minister for- istration announced that a Law on Shariʻa courts would soon be presented to theIn Assembly.September In 1928, Sarajevo, the Justice Pravda Minister greeted in this the withAnton an Korošec opinion admin piece,

18 “BeyondThe Review,”Korošec expressingadministration considerable was very satisfaction short lived. at The the Kingprospect put inof placeShariʻa the courts organisational in the southern and personal regions. preconditions for resolving chronic political crisis by introducing personal rule. - ary 6, 1929, and took measures to secure the loyalty of its Muslim subjects The regime was established after dictatorship was declared on Janu- while at the same time undermine JMO influence on the masses. The stan anddard-bearer later Grand of thisMuftî policy was a leading Radical from BiH, Milan Srškić, but its executors were leading19 Serb-oriented Muslim politicians, Muftî� , Ibrahim Maglajlić, Hamdija Karamehmedović, Avdo Hasanbegović,the Muslims through and others. organisational Srškić served subordination as Justice ofMinister the Islamic in General Reli- giousPeter CommunityŽ�ivković’s first to his administration. ministry and packingHe attempted its administration to exert influence with loy onal individuals. This was consonant with his view that their previous leadership had imposed a “Turkish” mentality on the Muslims. on MarchOne of 21, his 1929, first andsteps it waswas promulgatedto propose the seven King days promulgate later.20 a law on organising the Shariʻa courts and Shariʻa justices. The king ratified the law Osvrt na rad staleške organizacije šeriatskih sudaca, 315. 18 Pravda, September 12, 1928. 1917 A. Š�kaljić, Pravni položaj verskih zajednica u vreme šestojanuarske diktature,

20 SlužbeneCf. Mustafa Novine, Imamović, neobjavljeni magistarski rad, Belgrade 1967, 90, A, Purivatra, op. cit., 300-301. no. 23 — XXIX, 28. III 1929.

73 Fikret Karčić / Shari'a courts in Yugoslavia 1918-1941

There were several reasons for how the law came to be passed a mere two and a half months after the declaration of dictatorship. - nalisation in any case. Unanimity had by then been achieved of Muslim civil First,and political preparations opinion for regarding introducing the needthe law for werethe law. already By enacting close to this fi th regime could thus demonstrate its good will toward the Muslim masses, while at the same time offering its alreadyown supporters prepared additional draft, the arguments.January 6 21 The draft Law on organising Shariʻa courts and on Shariʻa justices (henceforth the Law on SCSJ) envisaged a single common form of organisa-

- tion for Shariʻa courts throughout the state in areas that were inhabited by- sationsignificant and unitarismMuslim populations. upon a legislative This approach programme fit well intended with the to reform standardis legal ing politics of the January 6 regime, which embarked in a spirit of centrali personal rule thus also left its mark on the Law on Shariʻa courts. A new provisionlife throughout for verdicts Yugoslavia to be afterissued a single,in the name homogenous of the King model. (article The 5) King’s ensured these courts were more closely incorporated into the governmental and legal system than at any time since the end of Ottoman rule. policy goals regarding the Muslim population; the state did not reserve theseThe new law’s authorities passage for however itself. In did fact, not it had secure previously the regime’s had much immediate broad- - tional changes within the Islamic Religious Community, which was er powers over muftî�s outside of Bosnia and Herzegovina. Later organisa into its administrative bodies, from district committees all the way up to thestripped forum of for its electingautonomy the in Grand 1930, Muftî and , thewould infiltration later offer of Shariʻathe state justices more scope for exercising influence over the religious life of Muslims. Separate regulation of the Shariʻa courts An amendment to the Law on the organisation of the courts

of January 30, 1922, had changed the provisions governing the application of Shariʻa law regulatedin so-called by ‘southern an instrument Serbia.’ with It greatermade no legal real force. changes The intemporary substance char but- actermeant of that this the arrangement scope and methodwas explicitly for applying stressed. Shariʻa law was henceforth 21

The(Novo Serbian vrijeme Supreme, December Muftî� 21, Mehmed 1929) Zeki-ef. Č�inara used an interview in 1929 to praise the January 6 regime for “the success it has shown in passing a number of useful new laws.”

74 Ch. III / The Structure and Functioning of the Shari’a Courts

Article 5 of the law contains the following provisions related to the maintenance,application of matters Shariʻa law:of guardianship and wardship, and the emancipation and majority“pt. v. – As of regards minors, marital insofar disputesas these affectbetween Muslims, Muslims, jurisdiction or disputes shall over lie

pt. g. – The provisions of the civil code on inheritance are to be ap- pliedwith the and muftî�s, enforced. within For the inheritance scope of their under local the responsibilities. law, the court may base its decisions on customary law, insofar as it is established without doubt that this is rooted and sanctioned in long-standing general practice. pt. d. – Serbian Muslim subjects may make their testamentary wills according to the provisions of Islamic law. The validity of such a testament

Similarly, Muslims may have recourse, by prior agreement, to the will be determined by the muftî�. - ularmuftî� courts, as to their unless judge otherwise of choice explicitly in questions agreed. of inheritance. Legal recourse againstProvisions the rulings pts. of v theand muftî�, d shall as remain the judge in offorce choice, up until shall suchbe via time the regas a Law on Shariʻa courts and their jurisdiction is enacted.” The Court of Cassation in Belgrade gave its interpretation of this legal st 22 In its opinion, the Court of Cassation at one point designated the muf- text in general session on January 1 , 1923 in decision no. 9324/922. - erarchy,tî�s as “representatives they exercised of oversight the Islamic over faith” Islamic but atreligious another life as “governmentand subordi- personnel.” In their firstimams capacity,) and as were members ex officio of the representatives Islamic religious on rehi- gional waqf committees. In their second capacity, they carried out judicial natefunctions. religious Depending officials (on the tasks entrusted to them, they served as chancery, judges in non-contested matters, and elective judges [i.e. judges chosenfirst-instance by the judgesparties]. ruling in accordance with Shariʻa law, as judges in In marital cases involving Muslims and in cases regarding mainte- ruling on the religious validity of marriages, they heard questions of maintenance.nance, the Under muftî�s article acted 100 as representativesof the Serbian Civil of the Code, Islamic the (Christian) faith. As well spiri as- tual courts could only issue non-binding rulings in principle on the right

22 Arhiv, no. 3/1923 to maintenance in Christian marital disputes. The muftî�s, by contrast, “Tumačenje tač. v, g i d čl. 5 Izmena i dopuna u zak. o ustrojstvu sudova,” (vol. VI/XXIII), 234-239.

75 Fikret Karčić / Shari'a courts in Yugoslavia 1918-1941 could decide on the level of maintenance, a matter reserved under the Serbian Civil Code for the regular civil courts. As rulings on these issues

- were made in accordance to Shariʻa law, in the absence of Shariʻa courts, the muftî�s’ decisions were subject to review by higher-level Muslim reli cutgious their authorities cloth to the– in samethis case, laws the as Supremethe regular Muftî� chancery for Serbia. judges responsible forIn theindividuals opinion of theother Court religious of Cassation, confessions. the muftî�s Examples were includedrequired isto- sues such as guardianship and trust funds or custodial accounts for minors, estates in chancery of deceased Muslims, and the emancipation or on such matters were subject to review by the regular appeal courts. majority of minors, in the absence of specific regulations. Their decisions- tance and probate were generally those of the Serbian Civil Code, except that,For under Muslims article in 5, ‘southern item d, where Serbia,’ interested the regulations Muslim governingparties agreed inheri in advance, it was possible to transfer probate from the regular civil courts to the muftî� as judge of choice. His ruling, like that of any judge of choice, judgewould of be choice, subject he to was review required by the to submitcourt of his first ruling instance and any assuming legal basis the parties had not waived their right of appeal. Whenever a muftî� served as- stance courts were to be guided by the general regulations of civil judicial procedurefor it to the governing relevant thecourt work of first of judges instance. of choice. In their review, the first in When making wills, Muslims had the right to choose between having standinga chancery in judge for the draw judge, up aand testament the appeals under court the civil was code responsible or a muftî� for who as- sessingcould do his so rulings. under Shariʻa regulations. In the latter case, the muftî� was The interpretations of the Court of Cassation to one side, it was pos-

This was because an individual whose basic role was religious was ap- pearingsible for asdisputes the executor over the of tasksnature that of thenormally muftî�’s fell role under to arise government in practice. jurisdiction and were only delegated to him by the will of the state. It was was serving so as to determine which authority was responsible for exer- cisingconsequently oversight important over his legalto know actions. in each23 case in what capacity the muftî�

23 -

For how cases were resolved inBranič judicial (Belgrade), practice, seeno. T.12 I.,/1928, “Za rešenje 239. pitanja o izuzeću muf tije pri donošenju odluka po muslimanskim masama, nadležan je prvostepeni sud na čijoj teritoriji se nalazi muftî�jstvo,”

76 Ch. III / The Structure and Functioning of the Shari’a Courts

terms of the law they applied and the nature of their functions. One similarity they Muftî�sshared therefore with the differedspiritual from courts the was Shariʻa that, and although the spiritual individuals courts occupy both in- ing positions in the hierarchy of a religious community, they were nonetheless carrying out judicial functions and applying the law on grounds of religious confession. On the other hand, for some of the issues within their scope, to review by the regular civil courts. Moreover, they were responsible for rul- ingthe onmuftî�s property ruled issues based over on general which thecivil spiritual law, and courts their decisionshad no authority. were subject

The Shariʻa courts in Bosnia and Herzegovina were departments of the regular civil courts so that Shariʻa justices had at best a weak connection to the Islamic Religious Community. The first instance Shariʻa courts’ rulings were subject to review by second or higher instance Shariʻa courts. The overShariʻa issues courts related in Bosnia to personal and Herzegovina status and maritalenjoyed law; mandatory their authority jurisdiction over inheritanceover Muslims was on dependent a range of on issues, the consent while theof the muftî�s parties. only The had application jurisdiction of was thus both more comprehensive and qualitatively different from the sit- Shariʻa law in Bosnia and Herzegovina through government Shariʻa courts Article 5 of the amended Law on the organisation of the courts was intendeduation in theas asouthern temporary regions measure, of Yugoslavia however, where for a there full seven were muftî�ates.years it re-

- limsmained lived. the onlyGiven legal their source content, for the the provisions application of ofthe Shariʻa article law were in not the reallysouthern an adequateregions24 that tool according for breathing to the life 1922 into censusarticle 109some of 720,078 the Constitu Mus- tion in any consistent fashion.

For example, as we have seen, muftî�s could only serve as judges of unknownchoice in matters for estates of inheritance. to be passed In down, practice, without it was probate very difficult hearings, to get over all severalthe heirs generations. to agree to Thishand caused a probate legal hearing and property over to arights/relations muftî�. It was not to become increasingly complicated over time. There was no legal clarity as parties with at best very weak procedural guarantees which only further contributedto how muftî�s’ to thedecisions disfunctional should situation.be formally25 executed. This provided the

Ženidbeno pravo, 96. 25 Novo vrijeme, Novem- 24 berE. Sladović, 16, 1929. “Uspostavljanje šerijatskih sudova u Vardarskoj i Zetskoj banovini,”

77 Fikret Karčić / Shari'a courts in Yugoslavia 1918-1941

These legislative and administrative shortcomings were exacerbated 26 In most cases, their levels of education were also unsatisfactory. For the bymost the part, unsatisfactory they were material graduates condition of Islamic of muftî�ate religious services schools in – themadrasas region. – with ijâza - cial language or the legal regulations governing wardship and other matters for which theydiplomas. were nowAt best, responsible. most had They only oftena rudimentary wrote their mastery rulings of in offi Ot- toman which meant the parties had to have them officially translated into Serbo-Croatian in order to use them with any official bodies. In some cases,- the muftî�s’ secretaries were not Muslims and had no knowledge of Shariʻa law or Shariʻa court practice. As a result, what were called “Islamic baptis mal certificate”Because of thisbegan situation, to appear proposals in the practice were made of southern to hand overmuftî�s Muslim along with forms of documentation that were unfamiliar to Shariʻa practices. - vide an outline for the purposes of probate on the basis of which the court wouldinheritance then consideraffairs to allthe other regular outstanding courts in practice.issues at Thethe requestmuftî�s could of parties pro While such cases happened in practice, the situation established under the27 legal regulationswishing for theirfrom probate1922 remained to be dealt in withforce according right up to Shariʻaimplementation law. of the Law on the Shariʻa courts. The Provision on the management of waqf trust-endowments in the Kingdom of the Serbs, Croats and Slovenes of September 12, 1919 was replaced on February 28, 1922 by the Law on the management of trust-endowments in the Kingdom of Serbs, Croats, and Slovenes except for Bosnia and Herzegovina - there as the religious. This leader brought of thea formal 22,856 end Muslims to the inSupreme living in Shariʻa the area. Ad28 Theministration qâdî in Montenegro and the position of Supreme or Chief Muftî�- 29 It is simportant received theto note title thatof Muftî�, the amended as in Serbia, Law and on theirthe organisation superior reli of thegious courts authority was now the Supreme Muftî� in Belgrade. - pretation of it did not apply in Montenegro.30 As to the question of the application of of January 30, 1922 statusand the quo Belgrade ante was Court maintained. of Cassation’s inter

26 Shariʻa law, the sudova od 30. I 1922.” Arhiv, no. 5-6 - jatskeCF. Rad. sudije,” Gagić, Pravda“Primena, May t. v, 19, g i d1921. čl. 5 zakona o izmenama i dopunama u zakonu o ustrojstvu /1925 (vol. X/XXVII), 435-438, H., “Podmladak za šeri 28 Ženidbeno pravo, 96. 2927 H.Rad. Rebac, Gagić, Islam n. artic. u Kraljevini 438. SHS, 656. 30 E. Sladović,

Cf. Podogorica High Court ruling no. 417 dated May 16, 1925.

78 Ch. III / The Structure and Functioning of the Shari’a Courts

- cording to the 1922 national census.31 As we have seen, under the Law on recognitionThere were of the some Islamic 2,495 faith Muslims, Muslims living living in in Croatia these areas and hadSlavonia no right ac - insofarto apply as Shariʻa. Islam hadAfter been the St.recognised Vitus’ Day by Constitution the highest levelwas passed, legal instrument the ques tion of Shariʻa law’s application in this area too was immediately raised limitations throughout territory of the state. in the country. This meant the Shariʻa courts were guaranteed without

MuslimHowever, marital no issues Shariʻa still courts fell under were the created jurisdiction in this ofarea the until regular passage civil courts of the 1929 law. According to E. Sladović, even after adoption of the Constitution, courts were established.32 In practice, a different solution was adopted. The which had been tasked with ruling in accordance withGrand Shariʻa Muftî until of Decem Shariʻa- - Imam of Zagreb was empowered by a decision of the ber 25, 1919 to conduct Muslim weddings in accordance with Shariʻa regula tions. In 1922, the Imam was raised to the rank of Muftî� and his office was- esrenamed between the Muslim Office ofmen the and Muftî�. non-Muslim Under a November females. In 18, this 1922 way, resolution the application of the Ministry of Religions, the Muftî� of Zagreb was authorised to contract marriag well, no matter how limited the scope (i.e., only marital issues). of ShariʻaThere law were was very entrusted few Muslims to a religious living in functionary Slovenia (650 on this total) territory and Dal as- matia (652 total) according to the 1922 census.33 There also was no Is-

- vancedlamic religious by Rade hierarchy Kusej, that or the any Austrian religious Law officials on the in recognition a position ofto Islamapply, Shariʻa law in marital matters. Moreover, the opinion was held, as ad- lims in family matters and inheritance, remained in force on the territory which envisaged the application of the Austrian Civil Code (OGZ) to Mus regions. beforeof Slovenia passage34 and ofDalmatia. the 1929 As law a result, was due Shariʻa to the law small did numbernot extend of Muslimsto these and the absence In our ofview, any the religious main reasons structures Shariʻa in these law areas.was not in force here in Bosnia and Herzegovina not just a guarantee of continued survival, but The passage of the St. Vitus’ Daynce Constitution in shaping offered these institutions the Shariʻa courtsin the also the prospect of decisive influe first common state of the southern Slavic peoples. 31 Ženidbeno pravo, 96. 32 Ibid. 33 E. Sladović, Spomenica Ibid., 97. 34 Rade Kušej, “Ob reformi in izenačenju bračnoga prava,” . Mauroviću, II, 7.

79 Fikret Karčić / Shari'a courts in Yugoslavia 1918-1941

The period between the constitutional guarantee and the actual passage of the Yugoslav Law on Shariʻa courts saw no change in the organisa-

1883tion and decree jurisdiction in Bosnia of and the Herzegovina, Shariʻa judiciary and inin theBosnia opinion and ofHerzegovina. B. Eisner, it wasThe St.possible Vitus’ Dayto consider Constitution that decreehad no abearing vehicle upon for implementing the provisions article of the 109.35 - 36 According to supreme In 1918, there were 85 Shariʻa justices and 30 trainees on the territo courtry of system the Supreme was at Shariʻabest unsatisfactory. Court in Sarajevo. The causes he cited as having Shariʻaled to this court situation justice included Ali Riza Prohić,the poor the quality37 actual of condition the judicial of thepersonnel Shariʻa - whichbeing producedtrainees progressed by the Shariʻa through Judicial their School practical in Sarajevo, training, the the poorlack ofmate sec- rial provision made for Shariʻa justices, the inappropriate manner in- proceduralretarial and law. support staff, the absence of supervision over the Shariʻa jus ticesThese themselves, were all and issues the deficient to which regulations attention would particularly be paid in in the efforts area toof state and to raise it to the level of a modern, reformed branch of the na- tionalgive a judicialmore thorough system. legal grounding to the Shariʻa judiciary in the new

b) The 1929-1941 period.

This period began with passage of the Law on organising the Shariʻa courts and on Shariʻa justices on March 21, 1929 and lasted until the collapse of throughoutthe interwar the Yugoslav territory state. of Yugoslavia Significant and features efforts of to this apply period legal included regulationsthe homogeneous and provisions and thoroughly unified and organisation consistently. of the Shariʻa judiciary

35 - skog prava,” Arhiv 36 B. Eisner, “Nadležnost u porodičnim i nasljednim stvarima muslimanaEl-Hidaje i primjena šerijat 353. , no. 2/1922 (vol. V/XXII), 147, fn. 3. A. Š�kaljič, “Osvrt na rad staleške organizacijePravda, 11.šeriatskih IX 1919, sudaca,” 16. IX 1919, 18. IX, no. 1919, 12/1943, 20. IX

37 A. R. (Ali-Riza) “Naši šeriatski sudovi,” 80 1919. 7. X 1919. Ch. III / The Structure and Functioning of the Shari’a Courts

A common system for the regulation of the Shariʻa courts The Law on the Shariʻa courts -

comprises 49 articles, divided into four sec tions: the Shariʻa courts (1-27), Shariʻa justices (28-37), Shariʻa judicial assistants (38-40), and transitional and final provisions (41-49). judicialThe authority first section was dealt exercised with theby organisationspecial departments and jurisdiction of the district of the Shariʻa courts. According to the text of the law, the first instance Shariʻa instance was in the hands of special sections of the appeal courts referred courts, referred to as district Shariʻa courts, while the second and final to as the Supreme Shariʻa Court (article 1). - District Shariʻa courts were established within every district court in thanwhich the at legallyleast 5,000 stipulated Muslims number resided. of Muslims The Justice would Minister be allocated. was responsi ble for determining to which district Shariʻa court any districts with fewer

The judicial authority in a given district Shariʻa court was exercised- bersby an of individualthe district justice court would (article determine 8). The number the administrative of Shariʻa justicesand support and clerks was to be determined by the Justice Minister, while the senior mem in rank where there were more than one, would determine the terms of staff for the Shariʻa court (article 7). The Shariʻa judge, or the most senior - reference of the Shariʻa court staff and be responsible for correspondence- ministrativeon matters that side, fell including within Shariʻa record-keeping, judicial jurisdiction was entrusted (article to the10). senior Over memberssight over of the the overall district workings court (article and staff 10). of the Shariʻa court and the ad appeal courts in Sarajevo and Skopje (article 3). Each of these courts was to Supreme Shariʻa courts were to be set up as special departments of the- have a minimum of three supreme Shariʻa court justices along with the nec appealessary courtnumber from of amongstShariʻa court the staff officers. of that Administrative court (article 11).and Thesupport adminis staff- were to be appointed for the Supreme Shariʻa Court byex the officio president to the of most the tration of the Supreme Shariʻa Court belonged by rank/ senior Shariʻa judge and the president of the appeal court (article 12). The Supreme Shariʻa Courts were responsible for considering and dealing with appeals lodged to the second and final instance against judgements and other rulings of the district Shariʻa courts (article 13). Similarly, they were responsible for periodic review of the district Shariʻa courts’ operations and issuing corrective guidance to the Shariʻa district 81 Fikret Karčić / Shari'a courts in Yugoslavia 1918-1941 courts on any mistakes in their work (article 26, in relation to article 100 of the Law on justices of the regular courts). These courts made their rul- districtings in closedcourts. sessions based on files from the first instance proceedings and, Thewhere Law necessary, on the Shariʻa with supplementation courts introduced provided certain through novelties the into Shariʻa the organisation of these institutions within Bosnia and Herzegovina. court in Bosnia and Herzegovina regardless of the number of Muslims living inBefore the district.passage ofAccepting this law, thethere new were legal Shariʻa condition courts forin every establishing district

- ti-shipsShariʻa district (outside courts of Bosnia (a minimum and Herzegovina). of 5,000 Muslims) led to a reduction in the numberUnder the of Shariʻa Law on courts the organisation (within Bosnia of the and Shariʻa Herzegovina) courts, two and supreme of muf for their respective areas. In this way, the many years of effort to establish Shariʻa courts were set up which operated as courts of appeal or cassation - outa Supreme the state. Shariʻa Court in Skopje were brought to an end within the framework of the unified common organisation of Shariʻa courts through- tion over Muslim family matters and inheritance and matters pertaining to IslamicGenerally, trust-endowments the Shariʻa courts or waqfswere responsible(article 1). They for and also had had jurisdic special jurisdiction over certain materials and persons. They had jurisdiction for discussing and ruling on precisely determined matters, but only in cases where those matters affected precisely determined individuals (i.e., Mus- relationlims). In to exceptional the contracting cases, of where marriage a Christian and adjudication or Jewish of woman matters entered conse- into marriage with a Muslim man, she became subject to Shariʻa law in listedquent inupon article marriage 2 of the without law. Disputes any change that arosein her inreligious practice affiliation. were resolved by opinionsThe issues issued over by which the Court the ofShariʻa Cassation courts’ in Belgrade jurisdiction or by extended decisions are of 38

38the Justice Ministry.

The Justice Ministry, wanting to promote precise adherence to the regulations in the Law theon Shariʻa Skopje CourtsAppeals and Court to ensure and the homogeneity Podgorica High of judicial Court, areaspractice, where sent such rescript institutions no. 14,531, had dated December 11, 1931, which relates to the conduct of the Shariʻa justices in the area of-

not previously existed. For the text of the rescript, see A. Bušatlić, Š�erijatsko-sudski pos tupak u porodičnim, nasljednim i vaIkufskirn stvarima muslimana, second revised and 82 enlarged edition, in manuscript at the VIS library in Sarajevo. Sarajevo 1933, VIII—XIII. Ch. III / The Structure and Functioning of the Shari’a Courts

extended over the following issues. 1.According Questions to ofthe marital text of law the where law, the the jurisdiction husband and of thewife Shariʻa were both courts of tothe whether Islamic faiththe dispute or where related the marriage to property was rights contracted or to other in front issues of a arisingShariʻa fromcourt theor an marital individual relation authorised (article 2.1).by a Shariʻa court without distinction as According to the interpretation of the legal text, all issues arising from marital relations were to be adjudicated according to Shariʻa law so- long as the marriage had been contracted in front of a Shariʻa judge or toperson contract authorised marriages by abetween Shariʻa judge Muslim even men if both and partiesnon-Muslim were womennot them of selves of the Islamic faith. Shariʻa justices had previously been authorised Bosnia and Herzegovina, number 3558, of August 1, 1919). It is on this the Christian or Jewish faiths (by order of the National Government for- es and mediating all disputes arising therefrom was based.39 fact that the jurisdiction of the Shariʻa courts for dissolving such marriag- ing from the marital relationship where both sides were of the Islamic faith,The even Shariʻa if the courtsmarriage were itself also had responsible not been contractedfor mediating as anall Islamicissues aris one (but as a Catholic, Orthodox, or civil one). This interpretation of article 2.1 of the Law on the Shariʻa courts 40

limited the jurisdiction of the Shariʻa ofcourts marital in comparison issues in cases to the where traditional one of the Shariʻa spouses law ofconcept a non-Islamic or approach, mar- riageaccording converted to which to theIslam. Shariʻa According courts toalso the had Law jurisdiction on Shariʻa over courts mediation, it was jurisdiction. This interpretation put an end to conversions to Islam moti- vatednow necessary primarily forby aboth desire parties for a to one-sided convert fordissolution the Shariʻa of acourts marriage to enjoy that had been contracted under the regulations of a different religion which this interpretation of the Law on the Shariʻa courts. The Grand Muftî madecouncil dissolution resolved on difficult December or impossible. 22, 1938 to Muslim seek an religious amendment circles to opposedarticle 2 allowing women who converted to Islam to dissolve marriages contracted’s full

39 Glasnik VIS under non-Islamic regulations and ceremonies in frontPravosuđe of a Shariʻa (Belgrade), court. no. Cf., SSCS circular no. 430, dated August 20, 1921, , no. 1-3/1945, 14-15. - 40 B. Eisner, “Š�erijatsko pravo i naš jedinstveni građanskiArhiv zakonik,” 6/1936, 4-5, Ivan D. Petković, “Za razvod ranijeg hrišćanskog braka kad jedan od supružni ka pređe u islam nije nadležan šerijatski sudija,” , no. 1-2/1932 (vol. XXV/XIII) 124- 127. 83 Fikret Karčić / Shari'a courts in Yugoslavia 1918-1941

This request was not accepted since it was materially at variance with existing inter-religious regulations. Amongst the matters of marital law dealt with and resolved by the and the adjudication of consequences arising from it, the dissolution of marriage,Shariʻa courts, the allocation one may singleof maintenance out the following: or alimony the to contract divorcees, of marriage disputes regarding interpersonal relations between spouses (the wedding debt or brideprice – mahr jihâz), the duration and consequences of the post-marital waiting period (‘idda, tempus lugan- di), and so forth. , the woman’s dowry or trousseau – The Law on the41 Shariʻa courts allowed for the possibility of Islamic marriages to be contracted in front of individuals authorised by the Shariʻa- vidualcourts. orThese special would authorisations generally have called been izunname Islamic religious. This practice officials, was imams, sus- who conducted Shariʻa marriages for Muslims in their area based on indi- lated to monitoring and controlling marriages contracted in this way due to thepended resultant in Bosnia lack andof legal Herzegovina certainty. becauseThis was of done the difficulties by a decision that no. arose 101 re of agreement with the Ulamâ Council and with the approval of the Provincial theGovernment Supreme forShariʻa Bosnia Court and in Herzegovina.Sarajevo, dated February 20, 1919, issued in- clared to have the exclusive authority to contract42 Islamic marriages and they were also enjoined upon to record and register The Shariʻa newlywed courts couples. were de The passage of the Law on the Shariʻa courts in Bosnia and Herzegovi- na abolished many courts due to the fact that the districts they were situated in had fewer than the legally required number of Muslim residents. In order to ensure that marriages continued to be carried out in accor- - dance with Shariʻa law regulations in remote villages and spare the popu jurisdictionlation the high covered costs a of broader travel, theterritory Supreme could, Shariʻa in places Court where determined, such insti in- tutionscircular hadno. 385,been dated abolished, August authorise 29, 1930, a that head Shariʻa imam courts as registrar whose forareas con of- ducting Muslim marriages (except for mixed marriages). 2. Matters relating to the rights and duties of parents43 and children, regardless of whether they were related to property rights or other issues Porodično i nasljedno pravo muslimana Hikjmet (Tu- 41 A. Bušatlič, , Sarajevo 1926, 30-35, 40-47. 42 Husein Jahić, “Treba li Tumačdozvoliti šeriatskih imamima propisa matičarima Hanafîjskog da obavljaju mezheba vjenčanja,” o ženidbi, obitelji i nasljedstvu,zla) no. 54. December 17, 1933, 184-186. 43 Hasib Muradbegović, Zagreb 1944, 31.

84 Ch. III / The Structure and Functioning of the Shari’a Courts arising from the parental or familial relationship, including disputes over legitimacy (article 2, item 2). The prior determination of a marriage as Islamic is what counted for jurisdiction over these matters. According to the collections of Shariʻa law, Shariʻa courts heard cases on parental responsibilities for the upbringing assistanceand education from of close children, kin, etc. the children’s right to education, maintenance of the children, children’s obligations44 for maintenance of their parents, - ogniseThe the Shariʻa institution courts of werepaternity also testing,responsible a child for born hearing out of disputes wedlock over was legallywhether connected a child was exclusively born in wedlock. with the Insofarmother. as Its Shariʻa relations law to does the notunmar rec- ried Muslim father were adjudicated under the provisions of the general civil code that fell within the jurisdiction of the regular civil courts. The 45 children born to Muslim mothers with the remaining procedure falling withinShariʻa thecourts remit were of the responsible regular courts for appointing of chancery. guardians for illegitimate 3. Questions of inheritance law, and particularly46 hearings over and the allocation of any legacies left by Muslims and any associated suits insofar as they concern questions of the rights of inheritance and the valid-

- tionsity of aimedprovisions at determining made in case and of preserving death (article the estate 2, items and 3 itsand orderly 4). transfer toDuring its rightful probate heirs. hearings, These duties the Shariʻa included courts idneitfying carried ofout the a estate,range ofliqui ac- dating outstanding debts, probation of the will, dividing and allocating the estate, and settling any disputes over inheritance up to the point of handing division of inherited real property or consider suits to recover elements of theover estate the estate held by to thirdthe heirs. parties The on Shariʻa special courts legal grounds had no remitor suits to by compel creditors the against the estate whose claims were not recognised by the heirs. 47 over Muslim minors and the placing of adult Muslims in relations of wardship,4. as Matters well as the of guardianshipremoval of wardship and the and establishment the declaration of guardianshipof most Mus- lim minors (article 2, item 5).

Porodično i nasljedno pravo muslimana, Arhiv, no. 2/1922. 44 A. Bušatlić, 87-99. 45 B. Eisner, “Nadležnost u porodičnim i nasljednim stvarima muslimana,”Glasnik VIS, no. 10- (vol. V/XXII), 145-149. 46 Provincial GovernmentŠerijatsko-sudski Order postupnik no. 34739/III-7, s formularima dated April 26, 1917, 12/1944, 194-195. 47 A. Bušatlić, , Sarajevo, 1927, 20. 85 Fikret Karčić / Shari'a courts in Yugoslavia 1918-1941 guardianship both during and after probate proceedings in matters concern- ing theThe personal Shariʻa courtsrights ofwere minors responsible or persons for placedcarrying under out allguardianship. the functions of 5. Certifying the deaths of Muslims (article 2, item 6). The traditional48 ithbâtu al-mawt) as prac-

Shariʻa law institution of “death certification” ( tised by the Shariʻa courts in Bosnia and Herzegovina had already been personmodified dead.” during The the Law Austro-Hungarian on Shariʻa courts period explicitly and broughtentrusted more this orproce less- up-to-date with49 modern legal practices related to “declaring a missing dure for Muslims to theLaw Shariʻa on the courts. Shariʻa courts, the courts were autho- rised6. to Verification verify the signatures of the signatures of all Muslim of Muslim individuals, persons but (article they did 2, item not enjoy7.2). According an exclusive to remit.the The regular civil courts could also carry out such were responsible for verifying the content of various forms of document intasks. addition In practice, to the signaturesthere was some including dispute the ascontent to whether of bonds the andShariʻa powers courts of attorney related to bonds and promissory notes. This was the view taken in Bosnia and Herzegovina.50 bycourt A Bušatlić, in Sarajevo, with took reference the opposite to prior view legal that regulation there was of the no legalShariʻa basis courts for Ivo Lesić, a senior member of the district such tasks.51 such a practice and that Shariʻa justices lacked the necessary expertise for authorised only The to dispute authenticate was resolved signatures by the of JusticeMuslims; Ministry they were in decision not re- sponsibleno. 5943 of to January guarantee 30, 1931 the contents which took of thedocuments. view that52 Shariʻa This position courts were was

December 9, 1931. This opinion of the Court of Cassation was binding on reaffirmed by the Court of Cassation in Belgrade in decision no. 13,000 of but not in Sarajevo where the earlier practice continued. the Shariʻa courts on the territorywaqfs of the and Supreme all disputes Shariʻa arising Court inin Skopje,regard to such rights and responsibilities based on a property being part of a 7. Matters related to Islamic

Pravda 5048 Ibid., 97. 49 zaA. R.ovjeravanje Proho, “Proglašivanje potpisa (rukoznaka) mrtvim,” muslimana , 24. na VI ispravama,”1919. Pravosuđe A.528. Bušatlić, “Nadležnost sreskih šerijatskih sudova na području Vrhovnog suda u Sarajevu 51 , no.Pravosuđe 9/1932, 527-, no. 3/1932, 163-166. 52 Ivo Lesić, “O postupku overavanja na području VrhovnogPrilog suda »Pravosuđa u Sarajevu,”« za 1931, 2.

86 “Zbirka raspisa i rešenja Ministarstva pravde za 1931,” Ch. III / The Structure and Functioning of the Shari’a Courts waqf where this designation was not itself disputed, as well as disputes over whether a waqf

had been established under Shariʻa law regulations by injunctionAll acts related of a final to will founding or by legal a waqf action that taken required by the involvement living (article of 2,a item 7.1). - ting together an endowment charter (waqfiya), disputes over administra- tivecourt rights under over Shariʻa an endowmentlaw fell under (tawliya the remit), disputes of the Shariʻa between courts, the e.g.endow put- ment and the administrator over the form of endowed property, disputes over rights to the income from an endowed asset on the basis of the en- shart al-wâqif), etc. - ment-relateddower’s will ( disputes was that the endowment status of the matter was The condition for the Shariʻa courts to have jurisdiction over endow which was taken over from the Austro-Hungarian period legislation in Bosnianot in dispute. and Herzegovina. Shariʻa lawyers It was were considered particularly illogical, critical insofar of this as provision such en-

questiondowments of werethe very created existence under and the validity regulations of endowments. of Shariʻa 53 law, that civil courts,Responsibility unfamiliar with for theShariʻa, administrative were now responsibleaspect of an for endowment discussing thelay with its own administrative bodies, while disputes between the endowment as a legal entity and other private legal entities fell within the jurisdiction of the regular civil courts. 8. Matters of religious administration. This was to apply under both the Law on the Shariʻa courts and of other regulations which the law did not supersede or which were promulgated after it had come into force.

Under the Law on the Shariʻa courts ofThe so-called Shariʻa courtssouthern were Serbia also responsibleand of Montenegro for a number were ofresponsible religious issues. for all , the LawShariʻa on courts the Islamic in the Religiousterritory Community was passed and a constitution adopted for said religious com- other muftî�ate duties until such time as a questions of endowment and religious administration. munityA question (article 45).of this This sort role that was traditionally time-limited fell and within primarily the scope relevant of the to lunar (hijri) months. This was related to determining when religious holi- daysShariʻa should courts begin, was particularlydetermining the the month new moon of fasting and forthe Muslims. beginning of the

53 waqfs pravnim poslovima,” Mjesečnik, A. Bušatlić, “Nadležnost šerijatskih sudova u BiH u kim (zadužbinskim, zakladnim) no. 4/1929, 171.

87 Fikret Karčić / Shari'a courts in Yugoslavia 1918-1941

The Law on the Shariʻa courts does not mention their remit in deter- - tro-Hungarian period regulations in Bosnia and Herzegovina and was mining the new moon. Since this authority had been affirmed under Aus never later restricted, Shariʻa courtsnâ’ib continued to carry out these tasks. theThis members is clear from of the rescript Ulamâ no. Council 654 of that the thereacting was chief no officer need ofto thesend Islamic out a Religious Community (the first ), dated August 2, 1937, reminding courts were already doing that. circular on the dates of oncoming54 religious holidays since the Shariʻa the beginning of the hijra months through a hypothetical scenario. A vi- gnetteThe was Shariʻa construed courts in determined which two the individuals appearance were of thedebating new moon when and to re so- turn a debt. The deadline for repayment was the beginning of a hijra month. The plaintiff sought repayment on the grounds that the deadline had passed judge had to resolve the prior question of when the hijra month in question began.offering He witnesses did this toby that questioning effect. In witnessesorder to rule who on had repayment, registered the the Shariʻa phenomenon and then issued an announcement for the public.55 - lims on conversion to Islam. In the Yugoslav state, the Islamic Religious Shariʻa justices also traditionally received the statements of non-Mus justices continued to carry out such tasks with reference to traditional collectionsCommunity’s of bodiesfiqh. This had is sole why responsibility the Grand Muftî for this, but individual Shariʻa - sions to Islam.56 ’s full council under act no. 2137/38.15Legal provisions of December on organisation 22, 1938 forbid of the them Islamic from Religious conducting Community conver introduced after promulgation of the Law on Shariʻa courts also concerned - trative and endowment-related affairs. themselvesThe qâdî with the role of Shariʻa justices conducting religious adminiswaqfs was the basis for setting out in article 30 of the 1930 constitution of the Is- lamic Religious’s traditionalCommunity authority in the Kingdom to act as of protector Yugoslavia. or guardianThis article of noted ex officio on the Commission on endowment and educational affairs (Komisija za vakufsko-mearifske poslove) as chair. This arrangementthat Shariʻa judges was done served away with under the 1935 constitution of the Islam-

Glasnik VIS, no. 3/1398, 133. 55 El-Hidaje, no. 54 56 GlasnikMehmed VIS Handžić,, no. 12/1939, “U čiju 60. nadležnost spada određivanje arapskih mjeseci.” 9/1938, 137-138. 88 Ch. III / The Structure and Functioning of the Shari’a Courts ic Religious Community in the Kingdom of Yugoslavia which caused the As- El-Hidaje, to call at its annual assem- - tion.sociation of Islamic Religious Officials, bly for57 Shariʻa justices for it to be reintroduced to endowment administra- The removal of the Shariʻa justices was aimed at getting around the toobligation insist upon. for Shariʻa It was judicial also a way rulings of ensuring before allowing the party property loyalty to of be those alienat ap- pointeded or substituted to the endowment for which administration.was something Shariʻa justices naturally tended The Islamic Religious Community constitution from 1936 also introduced certain limitations to the autonomy and elective nature of religious - sponsibility for a number of tasks normally carried out under electoral procedureand endowment by the orregular educational civil courts. bodies These and tasks gave included: the Shariʻa checking courts vot re- er lists for the jamaat councils and local endowment and educational - commissions and assemblies (art. 102, 104, 105, 108, 109) and certifica carryingtion of candidate out hearings lists (art.of witnesses 113 – 133, and 136 other – 137), individuals et cetera. and, where necessary,Under swearing the same them constitution, in at disciplinary the Shariʻa investigations courts were at responsible the request for of the religious and endowment authorities (article 13.3). They were also bodies (article 11). responsible for resolving conflicts betweenLaw endowments on Shariʻa orcourts educational also included issues over which the relevant civil and spiritual courts had juris- dictionThe for Shariʻa Yugoslav courts’ citizens domain from under other the religious communities. The jurisprudence and the historical circumstances under which Yugoslav Shariʻa courts’ authorities had their roots in both the tradition of Islamic authoritiesMuslims lived. and The jurisdiction. Islamic Religious Community’s status and changes in its organisational structure tended to be reflected in the Shariʻa courts’

Implementation of the Law on organisation of Shariʻa courts and on Shariʻa justices This law came into effect in Bosnia and Herzegovina on April 1, 1929 and across the rest of the country six months after publication in the Official Ga- zette (Službene Novine) which meant it was implemented on September 28,

El-Hidaje

57 , no. 1/1940, 25. 89 Fikret Karčić / Shari'a courts in Yugoslavia 1918-1941

1929. This reason for the extended waiting period (vacatio legis) for areas outside of Bosnia and Herzegovina was because these areas previously did determiningnot have state where Shariʻa they courts should and bemore located. time wasIt had required at its disposal to set them the popula up. - tion ofThe Muslims Justice Ministryliving in eachwas responsible area according for creatingto national the statistical Shariʻa courts data. and -

30 traineesImplementing in 1918. the The law calculationreduced the for number 1931-1932 of Shariʻa envisaged courts andonly jus 60 tices in Bosnia and Herzegovina. There had been58 85 This Shariʻa was partlyjustices reme and- died only after intervention by the Grand Muftî and the Endowment and Educationaljudges and 13 Council. of these spots were not even filled. patternEstablishing of the Muslim Shariʻa population. courts where the legal conditions for them did exist and fillingnaib vacancies of the Supreme went forward Religious slowly. Council It also of did the not Islamic follow Reli the-

The first fromgious the Community, Endowment Salih and Savet Educational Basic, requested Commission on noted September that there 11, 1937were 5,600that the Muslims Justice residentMinistry residingreinstate there. a Shariʻa The court justice at ministryBileća since did a not report ap- prove the request since it considered the national statistics data from the

59 populationThe same census senior as of member March 31,of 1931the Islamic to be theReligious relevant Community figures. There re- had then been only 3,702 Muslims in Bileća at this time. - ed at Bugojno since the one who was carrying out the function at that time couldquested not on handle October the 12, workload 1937 that for an an additional area with Shariʻa 18,000 judge Muslims be appoint on his own. The request however was rejected on budgetary grounds.60 - tablishing the institutions, several Muslim political representatives did at- Since financial considerations were a necessary precondition for es tempt to make provision for new Shariʻa courts when voting for the budget.- In some places such as in Velika Kladuša, Kozarac, and61 Up Tešanj, to that Shariʻa point, courtsthose territories were first had established been s just before the interwar Yugoslav state ex pired by a July 19, 1940 decree by the Justice Minister. 58 erved by neighbouring ShariʻaEl-Hidaje, courts.

59 A. Š�kaljić, “Osvrt na rad staležke organizacije šerijatskih sudaca,”Glasnik VIS no., no. 12/1943, 3/1938, 131.353-354. 60 Ibid.“Pregled rada prvog naiba za Vrhovno vjersko starješinstvo IVZ, 61 Službene Novine

90 , no. 166-LV, 23. VII 1940. Ch. III / The Structure and Functioning of the Shari’a Courts

The implementation of the Law on Shariʻa courts went forward somewhat differently outside Bosnia and Herzegovina.62 some of the areas in Serbia and Montenegro at the time when the law As there were no district courts for Shariʻa courts to be sections of in Law cameon Shariʻa into force.courts It). was stipulated that in those areas Shariʻa courts should be establishedThe Law on wherever Shariʻa courts the district muftî�ates were (article 43 of the -

allowed the Justice Minister to appoint indi viduals with certifications of completed theological studies, which meant essentially the muftî�s, as Shariʻa justices in these areas for up to five years examon condition before the that law they came pass into the effect Shariʻa were judicial exempt examination from the requirement within three to years. Muftî�s with ten years effectiveLaw service on Shariʻa or who courts had). passed the expert pass the exam (article 44.1 of the This authority was widely used in appointing Shariʻa justices, the key Aprilfactor 1930, being a the royal candidates’ warrant appointed political orientation. the following as judges of the court: The Supreme Shariʻa Court in Skopje was set up relatively quickly. In - Mehmed Zeki efendi, a former supreme63 muftî� of Serbia, Mehmedalija Mahmutović, a former Shariʻa judge from Novi Pazar, and Derviš Š�ećerk adić, a former district muftî� from Plevlje. Sarajevo.Most of the vacant positions on the district Shariʻa courts in the southern64 regions were filled by graduates of the Shariʻa Judicial School in of pro-regime In order Muslim to meetpoliticians demands and forthe Shariʻa Supreme courts Religious to be foundedCouncil inof these regions “wherever the legal conditions for it existed,” the conference - easthe Islamicto judgeships Religious as soon Community as they passedconcluded the onexam. February65 24 and 25, 1933 that Withthe Minister the Decree should establishing be asked district to appoint and Shariʻacircuit courtstrainees on in part those of thear territory of the Skopje Appeals Court and the Podgorica High Court,66 courts

62 The press of the day wrote of how eagerly the Muslims living in the southern regions awa- - - scribingited the introductionit as a success of of Shariʻa the new courts. order. The (Novo newsletter vrijeme of, March the Muslim 1, 1930). supporters of the Jan 63 Novouary 6vrijeme regime, May carried 3, 1930. multiple articles about the introduction of the Shariʻa courts, de -

64 The following were nominated as Shariʻa judges: Nedžib Fazlagić in Resno, Salih Lakić in Pri jepolje, Hamza Č�emalović in Podgorica, Sadik Č�aršiimamovićNovo vrijeme in, MarchKavadaro, 16, 1930).Abdulah Š�kaljić in 65 GlasnikPriština, VIS Selim Serdarević in Kumanovo, Ibrahim Ridžanović in Novi Pazar, and Avdo Drnda as 66 Službenesecretary Novineof the Supreme Shariʻa Court in Skopje ( , no. 6/1934, 358. , no. 230-LVII, October 5, 1934. 91 Fikret Karčić / Shari'a courts in Yugoslavia 1918-1941 they had not previously existed. wereA finally Decree established establishing during the local the jurisdiction last part of ofinterwar the district Yugoslavia Shariʻa wherecourts on part of the territory of the Skopje Appeals court and the Podgorica High Court Decree on local jurisdiction67 of the Supreme Shariʻa Court in Skopje on August 20, 1935.68 was introduced on November 10, 1934, as was a further courts which would be remedied only following intervention by religious or Mistakes were sometimes made when determining the seat of the Shariʻa located in Andrijevica, some 36 km away, where there were no actual Mus- limspolitical thus actors. making The it Shariʻa practically court impossible whose seat for should the Gusinjehave been Muslims in Gusinje to have was recourse to it.69 After reports about this situation in the civilian Muslim press,

70 theand seat Slavonia of the beforeShariʻa court1935. was This returned caused toproblems Gusinje by in official those order.areas for the contractingNot a single of Islamic Shariʻa marriages court was andestablished conducting on the marital, territory probate, of Croatia and other forms of hearing. It sometimes happened that imams carried out weddings without authorisation. Often those marriages were later declared invalid. The Islamic press and religious elements in Bosnia and

inHerzegovina Sarajevo similar sought as the to howcreation the Sarajevoof Shariʻa Ulam courtsâ in these areas and for- dictionthem to hadbe subordinated been extended under to thethose authority areas underof the Supremethe Islamic Shariʻa Religious Court Council’s spiritual juris

71 theCommunity’s Law on budgetary constitution twelfths from on 1930. August 1935. Its jurisdiction covered A Shariʻa court was finally established in Zagreb72 under article 56 of- na under a Decree on the territorial jurisdiction of the district Shariʻa courts thein Belgrade, territories Zagreb, of all theLjubljana, district Split, courts and of Novi appeal Sad under, dated Zagreb August and 20, Ljublja 1935. 73 in areas where no such institutions had been established and there had This decree resolved the problem of Shariʻa courts with local jurisdiction The 74 been Službene no extension Novine of the jurisdiction of the nearest Shariʻa court. 68 Službene Novine 6967 Islamski svijet , no. 262-LXVIII, November 13, 1934. Službene Novine, no. 69-XVI,198-XLVI, March August 22, 27, 1935. 1935. Islamski svijet (Sarajevo), January 25, 1935. 70 Službene Novine 71 Službene Novine, January 8, 1935. 72 , no. 174-XXXIX, June 30, 1935. Građansko procesno pravo Kralje- 73 vine Jugoslavije , no. 198-XLVI, March 27, 1935. 74 For suggested solutions to this problem, see Srećko Culja 92 , II, 646. Ch. III / The Structure and Functioning of the Shari’a Courts

- courtdistrict in Shariʻa Belgrade court for inthe Trebinje territories thus of became all district responsible courts of forappeal the territoin Novi ries of all the district courts of appeal in Split, as did the district Shariʻa-

Sad and for individually identified courts in Serbia where the legal condi courtstions did of thenot Nišexist region. to establish Shariʻa courts. The district Shariʻa court in Niš became responsible for the territory of individually identified district- diction in the country stretching across the entire Sava and Drava banovi- The district Shariʻa court in Zagreb had the broadest territorial juris tonas. make At the it easier request for of them the Islamicto have Religiousrecourse toCommunity, the these courts. the Shariʻa court in Zagreb held sessions in other large towns where Muslims lived75 in order the Croatian Banovina, a new legal and political dispute arose regarding Following the Cvetković-Maček agreement and the establishment of- ty. The territorial framework of the Croatian Banovina included some 15 the organisation of the Shariʻa courts under this new administrative enti courts fell within the purview of the Banovina authorities or were still underdistrict the Shariʻa jurisdiction courts. Theof the question state. The now answer arose asdepended to whether on thesewhat theShariʻa na- affairs, then they remained in the sphere of common activities at the level ofture the of state. the Shariʻa If they court fell under was taken justice, to be.then If thethey courts were fellin the under remit religious of the Banovina (article 2 of the Decree on the Croatian Banovina). not a religious character. They were sections of the district courts and the districtOne court side tookof any the regions view that associated the Shariʻa with courts the Croatian were of aBanovina secular andfell within its jurisdiction. Since the district courts exercised the right of appeal within the framework of the Banovina, a Supreme Shariʻa Court- would have to be set up in Zagreb to supplement the Shariʻa judiciary in the area and make of it an independent whole. Justice Hasib76 Muradbegov view.ić was Pravda a particularly strong public advocate of this idea. interest,Circles the around legal representatives the leadership ofof the Muslims former and JMO representatives sharply opposed of thisthe wrote that “because of their concern for the general Islamic

Shariʻa Pravda law discipline in this state can in no way accept that the Shariʻa Savremenik 75 , January 15, 1937. Savremenik, no. 76 See Hasib Muradbegović, “Š�eriatski sudovi u Hrvatskoj,” (Zagreb), no. 1/1940, 365-366; idem, “Još o šeriatskim sudovima u Banovini Hrvatskoj,” 3-4/1940, 95-96. 93 Fikret Karčić / Shari'a courts in Yugoslavia 1918-1941 judiciary be divided into two separate and unconnected systems.” Grand Muftî 77 religious in character and pushed for the courts in the Croatian Banovina Fehim Efendi Spaho advocated the view that the Shariʻa courts were - to remain under the existing framework of the Supreme Shariʻa Court in Sarajevo. He addressed the Justice Minister for clarifications in this re gard. The Justice Ministry accepted his position and ruled the Shariʻa- sionscourts in to article be “institutions 2, item 3.5, grounded of the Decreein religious on the affiliation Croatian and Banovina intended, the to operate on religious Shariʻa legal regulations, so that, under the provi the territory of the Croatian Banovina.” state-level authorities retain their responsibility78 for the Shariʻa courts on- - sionsAs in to the the Decree Supreme on justice Shariʻa affairs Court in Sarajevo’s jurisdiction in the Croa tian Banovina, the Justice Ministry explained that, in the absence of provi , dated September 27, 1939, changing onthe thecurrent territory situation of the regarding Sarajevo the Court Shariʻa of Appeals courts’ jurisdiction,and of the Supremethe only possible conclusion was that the jurisdiction of the existing Shariʻa courts The main reason for Muslim civil, political79 and religious representatives Shariʻa Court in Sarajevo had not changed.

Muslimin Bosnia opponents and Herzegovina to it. He taking argued this that stance the Grandover the Muftî Shariʻa (and courts some inother the Croatian Banovina was explained well by H. Muradbegović, one of the few

Bosniagroups ofand Muslims) Herzegovina feared and that might the Shariʻa even create courts a coming new precedent. under the80 authority The civil of the Ban’s administration would have consequences for the autonomy of

BosniaMuslim and politicians’ Herzegovina rejection the status of the ofvery autonomous concept of unit, forming similar an toindependent that grant- edShariʻa to Croatia. judiciary A incontributory the Croatian factor Banovina was wasthat largelyseveral with Bosnian a view districts to winning had - ment circles supported the civil Muslim politicians. been allocated to the Banovina under the name of “Bosnian Croatia.” Govern organised was eventually resolved on political and not legal or theoretical The issue of how Shariʻa courts in the Croatian Banovina were to be - grounds. The district courts in the Banovina were placed under the Ban’s jurisdiction with some departments, viz. the Shariʻa courts, remaining un

77 GlasnikAfter H. VISMuradbegović, “Još o šeriatskim sudovima u Banovini Hrvatskoj,” 95. 8078 After H. Muradbegović, “Š�eriatski sudovi u Hrvatskoj,” 365. 79 , no. 1/1940, 40. H. Muradbegović, “Š�eriatski sudovi u Hrvatskoj,” 365.

94 Ch. III / The Structure and Functioning of the Shari’a Courts

81 - quently remained outside the territory of the Banovina. This would remain derthe situationthe Ministry up ofuntil Justice. the collapse The Shariʻa of the courts’ interwar instance Yugoslav of appeal state duringconse World War II.82

2. The Character of the Shariʻa Courts provided a certain picture of their character. We have noted that they car- riedOur presentationout functions ofon the behalf organisation of the state and authorities remit of whilethe Shariʻa at the courtssame time has retaining connections to the Islamic Religious Community. This raises the question of how this double character expressed itself on the normative spiritual courts of the other religious communities in Yugoslavia? and theoretical legal levels. How similar were the Shariʻa courts to the

a) The relationship of the Shariʻa courts to the state authorities

When looking at this problem from a normative and legal perspective, the tofirst individuals thing that ruling needs on to familybe made and clear inheritance is that the issues national for Muslims constitutions (article of June 28, 1921 and September 3, 1931 Lawgave on the Shariʻa title of courts state Shariʻacontains judge the

109, Theitem Law 3, article on Shariʻa 100, courts item 4).gave The them the status of departments of the districtsame content or appeal (article courts 4). (article 1), which entailed their integration into the system of national jurisprudence. As already pointed out, when the constitutional guarantees for the ap- wouldplication not of be Shariʻa independent law were separate being made,courts. the During term implementation “state Shariʻa justice” of the provision,was accepted the instipulation place of “state was rendered Shariʻa courts” more preciselyin order to that emphasise one was thesedeal- - ing with both Shariʻa courts and Shariʻa justices. Because of the specific na 81 Glasnik VIS 82ture of the Shariʻa material and the procedural law involved, individuals Obzor , no. 2/1940, 84. H. Muradbegović raised the matter of founding a Supreme Shariʻa Court in Zagreb again, cf. , January 14, 1941. 95 Fikret Karčić / Shari'a courts in Yugoslavia 1918-1941

- nominated as Shariʻa justices could not be integrated into the existing structure of the regular civil courts. Only a senior Shariʻa justice could review and administrativelyassess the rulings part of a of Shariʻa the regular justice. civil This courts led to but the weredevelopment de facto ofan a inde spe- pendentcific institution: court system Shariʻa in courts implementation of differing ofinstances. the law. These courts remained other circumstances. First,The governmental there was the character provision of in thearticle Shariʻa 5 of courtsthe Law was on Shariʻaconfirmed courts by whereby Shariʻa courts pronounced judgements in the name of the King. This provision was a novelty compared to the earlier history of Shariʻa law systemin Yugoslav of government lands. Traditionally, in a state led the by ruler’s a Caliph name. All had that had Islamic no place custom in requiredShariʻa court during decisions a trial, aseven with when any worthythe courts activity, had wasoperated expression as part of of the a - principleformula “in under the whichname judicialof Allah, authority the Merciful, is exercised the Ever-merciful”. in a monarchy. The83 re quirement that judgement be in the King’s name derived from the general- der the regulations governing executive procedure or by other govern- Shariʻa court decisions were executed by the regular civil courtsper un se (article 20 of the Law on Shariʻa courts). ment authorities, without review of the Shariʻa courts’ decisions, or the administrative authorities were dealt with by the Court of Cassa- tion Jurisdiction(article 25 of disputes the Law between on Shariʻa the courts Shariʻa). and the regular civil courts - ter. They took the same oath as judges in the regular courts (article 30 of the LawThe onKing Shariʻa appointed courts Shariʻa). justices on the advice of the Justice Minis The provisions of the Law84 on organisation of the regular courts in the Kingdom of the Serbs, Croats, and Slovenes - erning the extension of legal aid, judicial recess and absence for the purposes of recess, the administration of the courts, of and January the right 8, 1929 of oversight included: all gov ap-

plied83 equally to the Shariʻa courts, subject to minor changes specified in the Their sentences and rulings are declared and executed in the name of the King on the basis ofArt. the 48 law.” of the St. Vitus’ Day Constitution states: “The courts exercise the judicial authority. Law on justices of the courts regular swear to almighty God that I shall be loyal to the ruling King, that I shall carry out my duties 84 exactlyUnder art. and 7 conscientiously, of the and that I will consider only, this the oathlaw in reads passing as follows: judgement. “I N. SoN. help me God.”

96 Ch. III / The Structure and Functioning of the Shari’a Courts

Law on Shariʻa courts (article 26). Similarly, the provisions related to judicial appointments, status and position, duties, the right of oversight and supervision, leave, and rank also applied (article 36 of the Law on Shariʻa courts). The interwar legal literature generally accepted the thesis of the gov- - en that these courts applied law based on religious sources on the grounds ernmental character of the Shariʻa courts although there were doubts giv Writings that called into question the governmental character of the of religious affiliation. rather than on the normative legal arrangements of the civil Yugoslav state. Shariʻa courts tended to rely on theoretical legal and historical arguments- kow, associate professor at the University of Sarajevo and chair of the CouncilAn exampleof the Supreme of such criticismCourt there. was85 thatTaking put asforward his starting by Mikhail point Zob the view that Islamic law was based on religious sources, he concluded that those to whom the preservation of such regulations was entrusted must be spiritual and religious personages. They were, in effect, clergy who were well-versed in the holy statutes to whom a judicial function had been entrusted. They remained spiritual personages, however, even when carrying out such a judicial function and therefore had no claim to the title governmentalof justice. Zobkow status considered and in so thedoing Austro-Hungarian having resolved administration the issue of the in Bosnia and Herzegovina responsible for having given the Shariʻa justices passing the Law on Shariʻa courts, the Yugoslav legislature should act con- sistentlyShariʻa courts’ with thejurisdiction historical “rather development arbitrarily.” and Hefundamental proposed that,task beforeof the remit for the religious aspects of marital and family law. Shariʻa courts and convert them into purely religious institutions with a

Zobkow interpreted the history of Shariʻa jurisprudence through the prism of the European distinction between ‘the secular’ and ‘the spiritual,’ so that his ultimate conclusion could only be a call for “Europeanisation” of the Shariʻa courts and treating them as ecclesiastical or spiritual courts. hadThe historyoccurred of anywhereShariʻa law else and in Shariʻa the Islamic courts world.offered Given him no the arguments absence orin weaknesssupport of ofthis, any however, real Muslim as no liberal such modification intelligentsia of in Islamic Yugoslavia, jurisprudence the state could have initiated and even implemented such a process but did not do so for political reasons.

85 Arhiv

M. Zobkow, “Š�erijatski sudovi,” , no. 1/1924, (vol. VII/XXV), 49-59.

97 Fikret Karčić / Shari'a courts in Yugoslavia 1918-1941

B. Eisner put forward a similar thesis arguing that at one point, even though designated state courts were associated with the regular courts as - itual courts.86 specialBy contrast,departments, Dragutin the ShariʻaTomac insistedcourts were on the nonetheless governmental really character just spir of - tion had denied Muslims their right to confessional courts under the provisionthe Shariʻa in article courts. 109, Heitem advocated 3, insofar the as it thesis had entrusted that the St. their Vitus’ family Day and Constitu inheritance affairs exclusively to government judges. Tomac concluded that no other confessional group should be in a position to demand jurisdiction

Muslims based on the principle of the equality of recognised religions. over Becausethe marital of theiraffairs jurisdiction of its flock oversince property the constitution rights, hedid designated not allow87 it the to - ats and Slovenes,” given that, in every other area of law, the regular courts dealtShariʻa with courts property “a unique rights phenomenon on the basis in the of entiregeneral state civil of law,the Serbs, while Cro the with Muslim principles.88 Shariʻa courts made their rulings based on a particular civil law imbued 89 In his view they were a special division of the government courtsSlobodan and their Jovanović members shared enjoyed this theunderstanding status of government of the character judges, of notthe Shariʻa courts. grounds of Muslim religious law, and not of state law. To prove his point religious officials, even if they made their rulings, as he put it, on the- cumstance that the Convention on the protection of minorities recognised aboutno right Shariʻa on the courts part ofas Muslimsstate authorities, to independent Jovanović religious emphasised courts, the rather cir they were only allowed to receive judgement in accordance with their religious law. during this period, Yugoslavia Islamic law was implemented through secular Thecourts. well-known90 Schacht Orientalistused the term J. Schacht to refer also to modernisedwrote at one institutions point that qâdî courts. In his discussion of the legal system of the civil Yugoslav state, Ferdo for the implementation of Shariʻa law as against traditional

Č86�ulinović B. Eisner, wrote Međunarodno, that Shariʻa međupokrajinsko law should (interlokalno) be considered i međuvjersko confessional bračno pravo even Kralje if- vine Jugoslavije, D. Tomac, Ustav i bračno pravo 88 Ibid., 20, 106. Zagreb 1935, 23. 8987 Ustavno pravo, Zagreb Kraljevine 1925, 106-107.Srba, Hrvata i Slovenaca 90 An Introduction to Islamic Law, 93. Slobodan Jovanović, , Belgrade 1924, 462. 98 J. Schacht, Ch. III / The Structure and Functioning of the Shari’a Courts

courts.91 the Shariʻa courts were themselves government and not ecclesiastical viewpointAlmost in all their writers struggle on Shariʻa for a constitutional law supported guarantee the understanding for government of the Shariʻa courts as governmental judicial authorities. They expressed this

Shariʻa courts and in their later theoretical work. - resentativesA Bušatlić of tookthe state as his in starting the administration point the traditional of justice. thesis They that, were given civil courtsthe types differing of affairs only placed in applying within Muslim their remit, family the law Shariʻa which courts has the were charac rep- ter of religious law. The regular civil courts on the other hand applied civil law to all citizens, irrespective of religion. In this way, the functions of 92 the Shariʻa and the regular courts complemented each other. - ed thatA.R. the Prohić qâdî sheld in Yugoslaviathe same viewwere noting government that the judges Shariʻa because courts of were the rulingsalready they“a government made under institution” their remit in for the property early days rights. of Islam.93 He conclud

authoritiesOne specific of a non-Islamic problem facing state. these They legaldid so experts not merely was theon theneed legal-the to offer- oreticala Shariʻa level, law clarification but also by ofinitiating the legitimacy the adoption of the Shariʻaof appropriate courts as legal judicial and political arrangements. Under Islamic law, the faculty of judgement falls within the remit of the Caliph. There may not always be a rightly appointed Caliph, but having - quirement for any Islamic community. The question therefore arises as to courts to make rulings in accordance with Shariʻa is a non-negotiable re the absence of a legitimate Caliph. Hanafî legal experts regarded as valid the legitimacyappointment of Shariʻaof judges courts by any in94 areasMuslim outside authority of an including Islamic state usurpers or in and rebels. They did question, however, whether the appointment of work, Al-fatâwâ al-Tatarhâniya, took the view that it was not a condition Shariʻa justices by a non-Muslim ruler was valid. The well-regarded legal for a judge’s appointment to be valid that the ruler be of the Islamic faith. 91Similarly, the Državno-pravnalawyer Ibni historijaAbidin jugoslovenskih held that thezemalja appointment 19. i 20. vijeka, of a Shariʻa 311. 92 F. Č�ulinović, Gajret II. Zagreb 1958, 93 Gajret H. A. Bušatlić, “Š�erijatski sudovi,” , 1928, 155-157. školuA. R. Prohić, u Sarajevu), “Problem II. šerijatskog prava,” , 1923, 154. 94 See further, M. Handžič, Š�eriatsko javno pravo (skripta za Višu islamsku šeriatsko-teološku 99 Fikret Karčić / Shari'a courts in Yugoslavia 1918-1941 judge by a non-Muslim ruler was valid, so long as Muslims themselves were happy with it. In the view of a number of other Hanafî legal experts, in the absence of an Islamic authority, Muslims should elect their own qâdî, and so, as the Fath al-qadîr put it, choose a single individual as their chief to appoint qâdîs, imams, and khatibs (preachers).

The Shariʻa legal experts in Yugoslavia accepted a combination of these views. None of them really questioned the nomination of Shariʻa judgejustices is bya representative non-Islamic rulers. of the Referring ruler (wak to lthe) in state’sthe tailoring right to of legislate justice and for themay jurisdiction therefore never of Shariʻa exceed courts, the authority Bušatlić explicitlyentrusted stated to him. that The a judicialShariʻa function (Niyâba) is the same as the representativeî� one (wakâla), from to state laws and other regulations relevant to their sphere of action.95 which it follows that the Shariʻa justices in Yugoslavia had to keep strictly- gal theoreticians that the important thing for Muslim communities in This opinion reflected the politically realist position of the Shariʻa le establishment of Islamic state institutions, which would be illusory. This non-Islamic countries was the implementation of Shariʻa law and not the could be considered legitimate. was whyThis theapproach application did not of Shariʻa eliminate law all by linksthe organs with a of religious a non-Islamic concept state of the judiciary or the thesis that judicial authority was a form of authority delegated by the Caliph - inated by the ruler but also to have an authorisation from the religious head of the Muslims. In. Shariʻaour case, justices this was were achieved expected by nota series just to of be delega nom- tions of religious authorisation. The religious chiefs of the Yugoslav Muslims (the Grand Muftî in Bos- up until 1930) received their authorisation (manshūra) from the Shaikh al-Islamnia and Herzegovina and the supreme muftî�s in Serbia and Montenegro legal business on behalf of Muslims. The Grand Muftî in Bosnia and Herze- govina then in Istanbul passed to on carry part out of histhe administrationauthorities, insofar of religious as they and related Shariʻa to qâdîs nominated by the government. This was âsala,” which could be rescinded for Shariʻa jurisprudence, to Statute for the autonomous doneadministration by an act referredof Islamic to religiousas the “mur and endowment-educational affairs in serious Shariʻa legal reasons (article 140 of the 95 Mjesečnik, no.

A. Bušatlić, “Nešto o nadležnosti za sklapanje braka pomuslimanjenih lica,” 100 1/1923, 24. Ch. III / The Structure and Functioning of the Shari’a Courts

Bosnia and Herzegovina). The religious head of the Muslims thus exer-

With the abolition of the Caliphate and the institution of the Shaikh al-Is- lamcised a certain influence over the nomination of Shariʻa justices. -

Caliph in fellTurkey through, in 1924, the Muslimsthe problem of Yugoslavia of how to acceptedensure the the legitimacy only realistic of Islam solu- ic religious and Shariʻa judicial officials came up. As attempts to select a new- nent members of the Islamic Religious Community would give the menšura to thetion Grand grounded Muftî in authorising Shariʻa law. him A special to conduct advisory Islamic council affairs comprising in Yugoslavia promi including issuing murâsala Constitution of the Islamic Religious Community Law on the Islamic Religious to Community Shariʻa justices (the - slavia followed the legal, July opinion 9, 1930, contained article 64, in whichthe Fath refers al-qadîr to article collection 4 of the on , January 31, 1930). In this way, Yugo the legitimate nomination of Shariʻa justices by non-Islamic rulers. To close our discussion on the relationship between Shariʻa courts96 and the state authorities, we ourselves assent to S. Culja’s view that the- Shariʻapointed courts and paid were by thea hybrid state andof governmental exercised judicial and authority religious inauthority. the name ofThis the author King but deployed were authorised the following to exercise arguments: that authorityShariʻa justices by the werereligious ap chief, frequently carrying out their judicial role under his instructions. belonged to. It was usual to designate them as special courts, but Culja demonstratedCulja thus thatoffered all courts an explanation except the as district, to the type circuit, of courts commercial, Shariʻa appeal, courts and cassation courts which were referred to as regular ordinary courts in the Law on the organisation of the courts, were more logically designated as

- traordinaryextraordinary courts, courts, in becausethe sense “extraordinary” of institutions with is the limited antonym recourse of “ordinary.” to legal remedies,Since the St.any Vitus’ courts Day which Constitution might logically forbade have the been institutionalisation designated extraordi of ex-

97 nary, including the Shariʻa ones, had to be called ‘special courts.’ b) The relationship of the Shariʻa courts to the Islamic Religious Community was regulated by the Law on Shariʻa courts and the laws governing the The relationship of the Shariʻa courts to the Islamic Religious Community 96 S. Culja, Građansko procesno pravo Kraljevine Jugoslavije, i, Belgrade 1936, 162.

97 Ibid., 66-67. 101 Fikret Karčić / Shari'a courts in Yugoslavia 1918-1941

Islamic Religious Community, or rather its constitutions. Some issues were regulated in more detail by relevant decrees or orders. The Law on Shariʻa courts allowed the Islamic Religious Community - suing murâsala two modes of influence over the Shariʻa court system: the first was by is Religious Community, to Shariʻa or rather justices its supremeand by issuing chief, relatedopinions to tothe the induction Shariʻa courts on important religious questions. This first authority of the Islamic of ShariʻaAccording justices to theinto Law their on duties, Shariʻa while courts the second related to matters of- principle in the application of Shariʻa law. only validly carry out their remit if they had, Shariʻaa licence justices (murâsala were) fromappoint the ed by the King on the advice of the Justice Minister. However, they could- goslav Law on Shariʻa courts carried over the solution of the Austro-Hun- garianresponsible administration supreme religious in Bosnia leader and Herzegovina (article 4). By as this expressed provision, in the Yuso- called autonomous statute. Unlike that act, however, which envisaged that the Grand Muftî would issue a licence detailing all the authorities to be carried out in the name of the Rijaset (the Supreme Religious Council)

- sons),when nominatingthe Law on orShariʻa transferring courts explicitlyShariʻa justices stated (and that thatreceiving the issuing a licence of a licence on transfer could be denied only for important Shariʻa legal rea According to the constitution of the Islamic Religious Community in was a precondition for the valid exercise of98 Shariʻa the Supreme legal authority. Religious Coun- cil, headed by the Grand Muftî, was responsible for issuing and revoking the Kingdom of Yugoslavia of July 9, 1930, licencesThe tomanshūra Shariʻa justicesfrom which under a thenewly provisions elected ofGrand an order Muftî to derived be issued his by the Ministry in cooperation with the Supreme Council (article 67.8). amongst the authorities given to him by the Islamic Religious Community.99 Shariʻa law legitimacy emphasised the issuing of licences to Shariʻa justices 98 Službene Novine 99 At this point, the menšura issued to Grand Muftî , no. 167—LXIII, July 25, 1930. Ibrahim Maglajlić, appointed to murâthe officesala/li by- cencesthe January you issue 6 government to qadis all at athe time religious of centralisation functions ofyou the are Islamic entrusting Religious to them Community for them and to receiveabolition the of legal its autonomy authority states: to exercise “We judgementspecifically forauthorise Muslims you... on their to note family, in the marital, inheritance, and waqf done in accordance with the Law on Shariʻa Justices and Courts and the Constitution of the Is- lamic Religious Community affairs, keeping in all things to the recognised Shariʻa law authorities, all to be with the members of the Ulamâ out in the principles of Islamic, so that jurisprudence in all Shariʻa (usūlî legal fiqh issues), on that the arise foundation over time, of the you, sources together of Medžlis may issue principled rulings based on the rules set- mentioned Constitution.”(Glasnik VIS the sublime Shariʻa and the fundamental works of Shariʻa law, as set out in art. 68 of the afore 102 , no. 11/1933, 46-47). Ch. III / The Structure and Functioning of the Shari’a Courts

An Order on the murâsala for Shariʻa justices was issued on March 10, 1931.100 The Supreme Religious Council of the Islamic Religious Commu- nity played an important role in shaping it. The institution developed the preliminary draft while one of its representatives, supreme Shariʻa court justice, Osman Vilović,101 attended discussions on the draft at the Justice Ministry.The OrderThe Supreme on the murâsalaCouncil then presented a final text for adoption by carrythe Justice out their Ministry. duties until they had received the regulatory licence, nor stipulated that Shariʻa justices could not 1). The Grand Muftî both issued and revoked licences (article 3). Before is- suingcould antheir instruction term of office of appointment, be extended, the if their justice licences ministry were had revoked to seek (article advice - from the Supreme Council as to any justified reasons for not issuing a li cence to a given individual (article 4). The licence could be revoked if either Endowmentthe work or behaviourand Educational of a Shariʻa Commission. judge was Before found revoking to be contrary a licence, to the rules of Islam or if a Shariʻa judge grossly neglected his duties on the district theCouncil licence had (article to issue 8). a Thewarning licence to thecontains Shariʻa the judge following via the text: Supreme Shariʻa Court (article 7). There was no right of appeal against a decision to revoke - tal, family, inheritance, and waqf-related matters as envisaged in articles one and I authorise you to conduct as part of your official judicial duties all and any mari two of the Law on organisation of the Shariʻa courts and on Shariʻa justices of

(muftâ bih qawl), to any conclusions made in the sense of articles 62 and 68 of the March 21, 1929, holding in all things to the recognised Shariʻa legal authorities constitution of the Islamic Religious Community and to any orders and rescripts issued with the proper authority. In giving you this license, I expect of you that you will follow your calling in all things, in both your public and private life, and that you will in all external matters conform to the accepted customs of tradition, so that you may in every regard prove worthy of this honourable position and may serve as an example to Muslims, and that you will carry out your duties conscientiously and with commitment, in

the law, committing with all your might to work for the good and progress of Islam. the spirit of the provisions of the sublime Shariʻa, as well as with the provisions of May Almighty Allah direct you upon the proper path and assist you in your work for the well-being, good fortune, and majesty of the Islamic Religious Community. (Article 2 of the Order on the murâsala).

100 Službene Novine 101 Glasnik VIS , no. 62—XVIII, March 19, 1931. , no. 7/1934, 419. 103 Fikret Karčić / Shari'a courts in Yugoslavia 1918-1941

- itiesAdoption of the of religious the Order communities was not just andan expression courts, but of a thereal January concession 6 regime’s to the general policy on the legal definition (codification) of the status and activ acts of submission to state authorities. MuslimThe religious Supreme hierarchy Religious given Council the Islamicwas required Religious to issue Community’s licences manywith-

- tentout assessmentand even morally of their and suitability religiously or unacceptable qualifications individuals to anybody were already con- acting as Shariʻa judge when the Order came into force. Several incompe

102 sequently confirmed as Shariʻa court justices, particularly in the territory- of the Supreme Shariʻa Court in Skopje. checkThere on reasons were also for casesnot doing of Shariʻa so.103 justices being appointed without pri or notificationThe Supreme of the Religious Supreme Council Religious therefore Council released by the aJustice statement Ministry that to it instructioncould not issue of appointment. a licence for theIn other appointment cases, it ofwas Ismail decided Hakija that Eminović the licenc as- esShariʻa would justice be issued in Bar with and thewas caveat requesting that in the the Justice future Ministry they would to rescind not be its if

There were later cases in whch licenses were revoked primarily104 due the Justice Ministry continued to behave in violation of the Order. the neglect of their duties in waqf administration.105 to inappropriateThe leadership behaviour. of the Islamic Warnings Religious were issuedCommunity to Shariʻa attempted justices to over ex- be supplemented by a provision requiring the issuing of a new licence pand its influence over the Shariʻa court system by seeking that the Order The government authorities did not accept this request.106 wheneverThe second a Shariʻa modality judge through was promoted which the to Islamic the Supreme Religious Shariʻa Community Court.

Law on Shariʻa courts seekcould the influence opinion the of workthe responsible of the Shariʻa supreme courts religiouswas set out leader in article on important 15 of the matters of religion.” Under which the states 1930 that Constitution “the Supreme of the Shariʻa Islamic Court Religious may Community, the responsibility for issuing such opinions passed to the Su-

102 Glasnik VIS preme103 Ibid. Religious Council (article 67), but under the 1936 constitution, it Glasnik VIS, no. 2/1934, 93. 105 Glasnik VIS 106104 Glasnik VIS, no. 2/1939,6/1934, 59.347. , no. 3/1934, 172.

104 Ch. III / The Structure and Functioning of the Shari’a Courts was given to the Grand Muftî and his Great Council (articles 96 and 98). The Grand Muftî - ’s Great Council had the authority to issue binding resolutions on any doubtful or disputed Shariʻa-legal or religious issue. These resolu tionsConclusion also covered number issues for2111/38 which theof the Shariʻa Grand courts Muftî were responsible and- suedso had December an important 21, 1938, impact offered on the an application illustrative of exampleShariʻa law of suchin Yugoslavia. a resolution. In principle, it forbade marriages between’s MuslimGreat Council, men and is 107 portionnon-Muslim, of Islamic Christian, legal or experts. Jewish Aswomen, such, eventhey thoughhad previously they were been allowed con- both by the letter of the Shariʻa and in the interpretation ofGrand a significant Muftî Great Council accepted thethe minority opinion within the Hanafî legal schooltracted which before held Shariʻa that courtssuch marriages in Southern were Slav forbidden. lands. The ’s Under the same conclusion, the position was taken that marriages contracted by Muslims in or outside of churches according to the ritual of other - sons should no longer be considered members of the Islamic Religious confessions could not be legalised by the Shariʻa courts and that such per The Law on Shariʻa courts did dissolve one link between the Islamic Reli- Community. The Shariʻa courts acted in accordance with this decision. justices in front of a committee of the Ulamâ Council for BIH. Under the law gious Community and the Shariʻa judiciary – the passing of an exam for Shariʻa the area in which the candidate had been practising (article 32). on Shariʻa justices, this exam was to be passed at the Supreme Shariʻa Court of theirBeyond religious these community links between in other the ways Shariʻa too. court However, system since and this the material Islamic community, Shariʻa justices participated in the bodies and activities of will be dealt with later in our discussion about the status and activities of is of no real relevance to the issue of the structure of the Shariʻa courts, it the Shariʻa justices. c) Comparison of the Shariʻa and the spiritual courts

The different legal traditions, the religiously informed consciousness of most of the population, and obligations under international treaties, including concordats (with the Vatican), combined to prevent the laicisation of marriage in the Yugoslav state. This led to a certain unevenness in marital

Glasnik VIS

107 , no. 2/1939, 54-55. 105 Fikret Karčić / Shari'a courts in Yugoslavia 1918-1941 law; different fora had jurisdiction over marital issues. Both religious and civil marriage existed in the Yugoslav state in which both state and spiritual courts exercised jurisdiction over marital affairs. - tion of the state (article 28) and proclaimed the principle that state courts While the St. Vitus’ Day Constitution put marriage under the protec the exclusion of the spiritual courts in matters of marriage was not drawn inexercised legislation judicial in the authority way that (article certain 48), legal the writers logical demanded. conclusion108 regarding Because the creators of the Constitution had remained silent on spiritual courts, the thesis was accepted in practice that the legal situation from before the Constitution had been retained.109 This meant that the regular civil courts were exclusively responsible for marital affairs in Slovenia, Dalmatia, Istria, and the Vojvodina. In Croatia and Slavonia, spiritual courts were responsible for issues of the validity of marriage, separation, and divorce, for both Roman Catholics and the Orthodox, while the regular civil courts dealt with all other issues. In Serbia, the spiritual courts of the Orthodox and Catholic churches (following the Concordat of and dissolution of marriage and certain matters of property related to mar- riage1914) (spousal had jurisdiction maintenance in marital during affairs, the period at least of withthe court regard case, to the rightvalidity to maintenance afterwards, maintenance of any children, and compensation for breach of promise). In the same way, the spiritual courts of all recognised religious confessions exercised jurisdiction in marital affairs in Montenegro. In Bosnia and Herzegovina, jurisdiction was granted to the spiritual judicial authorities of the recognised religious confessions over their co-religionists in marital affairs so long as property rights were not affected. The jurisdiction granted to the spiritual courts over marital affairs was considered a privilege granted to the religious communities that enjoyed a public legal status. For special reasons, the state delegated a part of its authorities to be exercised by religious bodies. Thereby, the rulings of these courts could be considered equal in standing to the rulings of the regular civil courts, insofar as they were made within the framework of legally recognised authorities and jurisdiction.110 The spiritual courts of the recognised religious communities, other than the Islamic, were purely ecclesiastical institutions, however. Their

108 D. Tomac, Ustav i bračno pravo 109 See further B. Eisner, Međunarodno, međupokrajinsko (interlokalno) međuvjersko pravo, 11- 20, S. Culja, Građansko procesno, 107-108. pravo Kraljevine Jugoslavije, I, 291. 110 B. Eisner, Međunarodno, međupokrajinsko i međuvjersko pravo, 30.

106 Ch. III / The Structure and Functioning of the Shari’a Courts establishment, organisation, and procedures were regulated by ecclesiastical law and regulations. This is the essential difference between these authority.institutions Their and jurisdictionthe Shariʻa courts. was established under national law and their determinationsThe Shariʻa pronouncedcourts represented in the name an emanation of the King of weregovernment executed or withstate-

- out review of the content under state law. The Shariʻa justices had the- cialstatus structures. of government As such, officials parties while were being represented fully independent in front of them in their by lawpro- yersnouncement under the of appropriatejustice. The Shariʻa legal regulations courts were governing a part of governmentlegal representa judi-

The spiritual courts were primarily ecclesiastical fora even when the executingtion without authorities regard for delegated the religious by the affiliation state and of their the representative.judges were ecclesiastical dignitaries. The rulings of the spiritual courts of both the Catholic and the Orthodox churches were delivered in the name of God or the holy Trinity.111 When it came to their execution or enforcement, there was a disagreement in theory as to whether the enforceable rulings of the spiritual courts enjoyed judicial execution or government assistance for execution. The latter opinion was advocated with strong argument to the effect as to whether an enforceable decision had been delivered by the spiritual courtthat government within the bounds assistance of its in competence execution was and afforded whether after it was confirmation in any form of contradiction with state law.112 The ecclesiastical authorities set out the procedures for the spiritual courts and they were promulgated as such: the procedure for the courts of rule book for marital disputes of the German Evangelical church of the Augsburgthe Serbian confession Orthodox ofChurch February of May 18, 301931, (June and 12), the 1933, Codex the iuris procedural canonici for Catholics in Croatia and Slavonia. Parties appearing before the spiritual courts of these three religious communities were denied legal representation, or it was limited and contin- 113 A lawyer could only make written submissions to the Orthodox spiritual courts and had himself to gent upon the religious affiliation of the representative.

111be Orthodox or at the very least Christian, if thereBranič were no qualified Orthodox 112 B. Eisner, Međunarodno, međupokrajinsko i međuvjersko pravo, 31. 113 Radoje Vukčević, “Državno i crkveno pravosuđe,” (Belgrade),Branič no. 11/1936,, no. 6/1935, 524. 295- 299. Matija Belić, “Advokatsko zastupanje pred duhovnim sudovima”,

107 Fikret Karčić / Shari'a courts in Yugoslavia 1918-1941 courts disallowed any form of legal representation, but parties petitioning the spiritualindividuals courts in the of the petitioner’s Catholic Church place of could residence. engage The legal evangelical representation spiritual and sometimes had to, but the lawyer had to be Catholic or, when there was no alternative, had to be approved by the Bishop. state, but that of the spiritual courts over only certain parts of Yugoslavia. In thisAfter regard, 1929, the the number jurisdiction of spiritual of the courts Shariʻa were courts always extended less than across that the 114of

Catholic spiritual courts in Bosnia and Herzegovina where full confession- the Shariʻa courts. In 1924 there were four Orthodox and three Roman in every district in Bosnia and Herzegovina.115 alism of marital law pertained. At the same time, there were Shariʻa courts

3. The Shariʻa Justices - plemented by an introduction to the personal and technical requirements Our consideration of the character of the Shariʻa courts will now be sup and their social status. for exercising the function of Shariʻa justice, the nature of their service,

a) The personal and technical conditions required for appointment as a Shariʻa justice

According to the Law on Shariʻa courts, any male citizen of the Kingdom of long as he was of the Islamic religion and had a regular legal degree, had Serbs, Croats, Slovenes, or later of Yugoslavia, could be a Shariʻa justice, so ofpassed age, and a course met the in Shariʻa general or legal had conditionsgraduated fromfor government the Shariʻa servicejudicial (articleschool, 28).and in either case had passed the Shariʻa judicial exam, was at least 26 years

- These conditions represented a mixture of Shariʻa law requirements and Yugoslav government regulations. The requirement that Shariʻa jus tices be male and belong to the Islamic religion had their origin in Shariʻa law. InS. Culja, the GrađanskoShariʻa law procesno compendia, pravo Kraljevine one ofJugoslavije, the first I, 165.things mentioned in the 115 114 108 M. Zobkow, “Š�erijatski sudovi u BiH”, 58. Ch. III / The Structure and Functioning of the Shari’a Courts conditions for carrying out the judicial function is male gender, followed by majority (in terms of age).116 Even if Hanafî legal experts had allowed women to be judges in matters on which they could testify, in practice this rarely lands, maleness was therefore introduced as a legal condition for carrying happened. Drawing upon the tradition of Shariʻa lawLaw in on southern justices Slavicof the regular courts outthe ineligibilitythe function of of female Shariʻa individuals justice. In fact, for the the judicial Yugoslav function. of January 8, 1929, (article 2) itself contained a provision on same origin. The reason for this was the understanding that the judiciary was exercisingThe requirement a religious that function Shariʻa justices and that, be as of a the rule, Islamic non-Muslim faith shared testimo the- ny against Muslims was not given the same weight. Introduction into the Law on Shariʻa courts meant these conditions were117 incorporated into state legislation. Their validity, alongside other procedural rules, refutes the the-

- lamicsis that legal the andShariʻa doctrinal courts requirementsin Yugoslavia were by the purely state, secular as well institutions. as similarities withOther governmental conditions for show carrying some out signs the judicial of modification function. of traditional Is According to the Law on Shariʻa courts 118 , Shariʻa justices had to be at least 26 years old. In Shariʻa law, the119 age The census Law wason Shariʻa lower –courts mere majority.formalised this requirementShariʻa law requires by requiring that Shariʻa candidates justices to hold be well law acquainteddegrees, including with the a bases and branches of Shariʻa law. specificAt the course time inthe Shariʻa, Law on orShariʻa have courts graduated came frominto force, the Shariʻa there were judicial no school, and in either case to have passed the Shariʻa judicial exam.

Shariʻa law courses at legal schools in Yugoslavia. The first one was only- isationoffered inat Algiersthe Belgrade and successfully Law School defending in 1931 hiswhen doctoral Mehmed thesis. Begović120 was appointedUp to thatas Associate point, and Professor to a large in degreeShariʻa even Law after athe three-year establishment special of

121 The Austro-Hungarian authorities the Shariʻa course at Belgrade, candidates for Shariʻa justiceships trained at the116 ShariʻaAli b. Muhamed Judicial b. HabibSchool el-Basri in Sarajevo. el-Maverdi, Al-ahkâm al-sultâniyya,

118 72. 119117 Ibid., 72-73. 120 GajretIbid., 73. 121 SeeIbid., further 73-74. Spomenica Šeriatske sudačke škole u Sarajevu izdana prilikom pedesetogodišn- jice ovog, 1931, zavoda 481. (1887-1937)

, Sarajevo 1937, 109. 109 Fikret Karčić / Shari'a courts in Yugoslavia 1918-1941

- had founded the school in Bosnia andqâdî Herzegovinas) in Bosnia in and 1887. Herzegovina” Its statutes (articlestate that 1), it though was founded the Austro-Hungarian with a view to “the authorities formation did of have appropriate the covert can in- tentiondidates offor using service the asopening Shariʻa of justices such a school( in Sarajevo to avoid the previous practice of judges and Muslim intellectuals training in Turkey, in line 122 The Provincial Gov- - pervising,with the Monarchy’s and oversight long-term of this institution, policy in the while Balkans. the Grand Muftî had a right ofernment oversight for overBosnia its andgeneral Herzegovina operations was and responsible the management for the offinancing, teaching su in junior secondary school (ru dija) or junior gymnasium, along with a two- religious subjects. To enrol at the school, candidates had to have finished which was changed several timesž during the existence of the school, includ- edyear Serbo-Croatian, course at the madrasah.Oriental and Schooling European lasted languages five years. (by Thepreference), syllabus, and some supplementary mathematics. Under the Law on officials Shariʻa legal and Islamic traditional studies, civil law, history, geography, to a faculty.”123 of July 3, 1923, the school received the status of a “senior technical school, equivalent Over its 50 years of existence, 370 graduates finished the justices,Shariʻa Judicial from service School, as going government on to carry ministers out a numberto acting of as other local significantimams. In roles in religious, cultural, and political life in addition to serving as Shariʻa of a modern Muslim intelligentsia in Bosnia and Herzegovina. this regard, the school may be regarded as the first centre for the education - eral timesThe issue amongst of developing the Bosnian the and Shariʻa Herzegovinian Judicial Schoolpublic. intoA preliminary a Higher School for Shariʻa Legal and Islamic Theological Studies was mooted sev decision of the National Council of Serbs, Croats and Slovenes for Bosnia andstep Herzegovinafor such a reform on November was the foundation 25, 1918 asof athe classical Shariʻa gymnasiumGymnasium withby a additional Oriental and Islamic subjects. Amongst other things, the school - my or Islamic Theological Faculty. The idea of such a school however madewas intended little headway to provide with a supplyYugoslav of studentsauthorities for who the futuretended Shariʻa to prefer Acade the â circles and the tra- - ticescreation at the of lawShariʻa faculty, courses as they at thefelt lawthat faculties. the number Ulam of semesters dedicated ditional Muslim elite were against integrating the education of Shariʻa jus 122 Muslimansko školstvo u BiH do 1918, Sarajevo, 1983, 259. 123 Hajrudin Č�urić, 110 M. Zobkow, “Š�erijatski sudovi u BiH,” 55. Ch. III / The Structure and Functioning of the Shari’a Courts

- - to studying Shariʻa law would be insufficient. More particularly, they ob conditionsjected to locating for that the are chair most of nearly Shariʻa met law in in Sarajevo.” Belgrade. The thesis was pro moted that “Shariʻa can only succeed in an Islamic environment,124 and the - The study of Shariʻa law at the law faculty served to underline the- iesgovernmental should be viewedcharacter alongside of the Shariʻa the transfer courts andof the the seat state’s of therole Supreme in train Religiousing Shariʻa Council justices. of The the choiceIslamic of Religious Belgrade Community as the seat offrom Shariʻa Sarajevo legal to stud the

Somewhat later, around the time of the attempt to establish an inde- capital and in the context of the January 6 regime’s centralising policy. 125 The candidate for the pendent Shariʻa judiciary within the Croatian Banovina, moves were made tospecialist create a training chair in inShariʻa Algiers. law Given at Zagreb the imminentUniversity. collapse of the interwar docentship or assistant professorship, Mehmed Alajbegović, was sent for whenYugoslav the state, Minister this plan of Education for a Zagreb issued chair ain decreeShariʻa lawon the was Higher never realised. Islamic A high school that would prepare Shariʻa justices was finally created126 The school was created thanks to the participation of Muslim deputies in the Shariʻa and Theological School in Sarajevo on March 30, 1937. higherStojadinović level. – Korošec – Spaho coalition government of June 1935. The school thus 127 represented the survival of the Shariʻa Judicial School at a secular law (encyclopaedia law, Roman law, civil law, constitutional and administrativeAll branches law, of the Shariʻa history law of wereSlavic studied, law) and along canon with law. disciplinesThe teaching of

- staff included leading experts in Shariʻa legal disciplines (Mehmed Handžić, Mehmed Ali Ć�erimović, Muhamed Tufo, Alija Silajdžić) and secu- tionslar law with (Miloš 103 Bajić, students Hamdija were Ć enrolled,�emerlija, and Abdulselam 38 of them Belagija, received and diplomas. others). In additionDuring tothe working lifetime in of the the legal school profession, (1935 – 1945) its graduates a total of played 10 genera a sig-

- nificant role in Yugoslav Oriental studies. The education of the Shariʻa judiciary in the Yugoslav state was, clear Pravda 125124 AnSpeech idea bysupported JMO deputy by the A. thenHadžikadić Grand Muftî in the Fehim-ef. debate on Spaho. the Ministry See Glasnik of Religions’ VIS, no. 2/1939, budget 62.on 126 SlužbeneMarch 15, Novine 1927, , March 29, 1927. - jevu,” Takvim (godišnjak, no. 72 A, Udruženja March 31, isIamskih 1937. vjerskih službenika u SR BiH), 1983, 139-159. 127 For more on this school, see Kasim Hadžič, “Viša islamska šeriatsko-teološka škola u Sara 111 Fikret Karčić / Shari'a courts in Yugoslavia 1918-1941 ly, somewhat variegated, placing an emphasis on general legal studies (at the Belgrade law faculty) or on Shariʻa legal disciplines (in Sarajevo). threeAfter years finishing and was their a period schooling, during graduates which trainees of the Shariʻa gained Judicial the expertise School legal faculty served as Shariʻa judicial trainees. The trainee phase lasted and practical knowledge needed to serve as full Shariʻa justices. Finishing thetheir candidate traineeship had afforded been in practicecandidates (art. the 32 right of the to Law sit the on Shariʻa courtsjudicial). exams, administered by the Supreme Shariʻa Court of the territory where- 128 Law faculty graduates who Thepassed training the exam period were and eligible sitting for for placement the Shariʻa as judicial a justice exams on the were district gov erned by a rulebook of November 7, 1929. Law onShariʻa Shariʻa court courts after). spending at least one year in a Shariʻa court, while Shariʻa judicial school graduates required two years (article 29 of the

b) The professional and social status of Shariʻa justices

The Law on Shariʻa courts their status, and their rank were to be determined in accordance with the regulations of the Law on justicesstipulated of the that regular the appointment court regular of (articleShariʻa 36).justices, Before passage of this law, there had been disagreement in the legal literature as to whether the permanency of judicial appointment also ap- - signed without their consent.129 Even after passage of the Law on Shariʻa courtsplied to, some Shariʻa legal justices. authors Before argued 1929, that permanent Shariʻa justices appointments were often did reas not

- tusapply with to Shariʻathe justices justices. of the In Augustregular 1937,courts the with Shariʻa regard justices to their directed level of a remonstrance to the Justice Ministry setting out their claim to equal sta- cal School, and that consequently their permanence of appointment schooling,should no longerfollowing be upcreation for discussion. of the Higher130 Islamic Shariʻa and Theologi - againstThe one Shariʻa or morejustices of enjoyed them, where judicial there immunity, was reason meaning to thatbelieve prior they ap proval of the Justice Ministry was required to initiate an investigation

128 Službene Novine 129 Šerijatsko-sudski postupnik s formularima, 15. 130 Pravda , no. 266—CVI, 13. XI 1929. A. Bušatlić, 112 , August 20, 1937. Ch. III / The Structure and Functioning of the Shari’a Courts

(article 21 of the Law on justices of the regular courts). might have committed a criminal act in the exercise of their official duties - The Justice Minister was also responsible for ordering any investigation ininto the disciplinary place of one offences of the appeal by Shariʻa judges justices. (article In 36, such Law cases, on Shariʻa a judge courts of the). Su preme Shariʻa Court would sit on the disciplinary bench of the DecreeAppeal on Court the assessment of justices of the regular courts and Shariʻa justices 1932.The131 assessment of Shariʻa justices was regulated by the justices was identical to that for justices of the regular courts. Theof June district 23, This decree was later amended. The procedure for assessing Shariʻa- sonnel council of the district courts and then by the personnel council of the appealShariʻa courtscourt judges in any underwentsecond instance assessment process. at The the main first instancechange was by thethat per the senior rather than the most junior member of the council. participating Shariʻa district or Shariʻa Supreme Court justice was the most- ular courts when it came to salaries and other forms of remuneration Shariʻa justices were also on an equal footing with justices of the reg initially placed in a lower status group than the justices of the regular courts(Shariʻa because justices of who their had lower graduated level of from formal the schooling). Shariʻa judicial school were Before passage of the Law on Shariʻa courts trainee judges had to wait years after passing their, professionalShariʻa justices exams and for their an assistants were poorly situated within the schedules of officials, and Shariʻa justices and trainee justices were also denied the right to the judicial allow- appointmentance.132 even if there were many vacant posts as Shariʻa justice. Shariʻa 133 Once the Law on Shariʻa courts passed, These formsthe problem of discrimination was no longer were dealt rectified with by on political the basis intervention of political onhappenstance, the part of ministers rather it nowfrom received the ranks systematic of the JMO. legal regulation. -

After October 5, 1920, the Shariʻa justices came together profession Kingdomally to form of theYugoslavia. Association In addition of Shariʻa to Justicesissues of and status, Practitioners, the Association which later changed its name in 1931 to the Association of Shariʻa Justices of the met with a certain degree of success. took an interest in the legal regulation of the Shariʻa justice system and 131 Službene Novine 132 El-Hidaje, 133 , no. 191—LXXIX, August 20, 1932. - A. Š�kaljić, “Osvrt na rad staležke organizacije šeriatskih sudaca,” 12/1943, 350. The judicial addition to the Shariʻa justices was approved in 1924, when Halid-bey Hrasni ca was Justice Minister. 113 Fikret Karčić / Shari'a courts in Yugoslavia 1918-1941

- - The link between the Shariʻa courts and the Islamic Religious Com munity was reflected in the status of the Shariʻa justices. The legal regula community.tions governing the Islamic Religious Community did not consider Shariʻa justicesThe to1930 be justLaw governmenton the Islamic officials Religious but Community also representatives envisaged that of that the - community would be represented before the state by the muftî� or his dep- ticesuty, or presided in their on absence, the district by a waqfShariʻa commissions judge (article and 7). were, Under as such, the Islamic repre- Religioussentatives Community of the religious constitution community of that at the same level year, of districtthe district Shariʻa (article jus

- ing12). day According for work to forOrder the no.waqf 58,073 and maârif of the Ministeror endowment of Justice, and dated educational June 3, administration.1935, Shariʻa justices were permitted to use the final hour of their work 134 - There were nonetheless significant differences, particularly in status, between the Shariʻa justices and religious officials. Their statuswaqf as resourc govern- mentes. This officials distinction with quitewent sosolid far incomes that some distinguished qâdîs began theto sit Shariʻa with governjustices- fromment mostrepresentatives religious officials, at the whoentrance were tomodestly the mosque paid fromrather than in the rows for the faithful and the Ulamâ during public prayers (duʻâ; dova) in scandal in religious circles and the general Muslim public through their disregardthe mosques for onIslamic state norms holidays. of behaviourIndeed, some in private Shariʻa life. justices135 even caused the Muslim population. Their service secured them all the advantages of representativesNonetheless, of Shariʻa traditional justices authority enjoyed amongst a high degree the masses. of esteem At the amongst same time, the degree of modern education they had attained during their schooling allowed them to present themselves as champions of cultural progress amongst Muslims. Their children regularly attended school thus helping to break down the suspicions that existed amongst the Muslim role in cultural societies. The authorities took a particularly kind view to- wardsmasses their against involvement modern education. in the Muslim The Shariʻacultural justices society, also Gajret took. an active Their public service imposed certain forms of political activity expect- -

Glasnik VIS ed135 of Pravda government, May 26, 1923. officials. This related particularly to the expression of po 134 , no. 7/1935, 351.

114 Ch. III / The Structure and Functioning of the Shari’a Courts

- sitionlitical opinionsparty during and electionsparty affiliation. was seen Due as to scandalous all the potential in the consequenceseyes of the gov it- ernmentmight have authorities. in swaying Such Muslim justices voters, normally Shariʻa faced judges political who voted sanctions for an ifoppo they did this.136 These realities led to them dissimulating their political opinions and sentiments or altering their views as circumstances changed. 137 - Political influence could not be entirely excluded from the appointment of Shariʻa justices. It was particularly relevant during the January 6 dictator ship period. One sees this clearly from the nomination of Shariʻa justices during this period. Appointments to the newly created Supreme Shariʻa Court in Skopje included Mehmed Zeki Č�inara, a former Supreme Muftî� of DžemijjetSerbia known for his sympathies with radical circles, Derviš Š�ećerkadić, a- former district muftî� from Plevlje, who had opposed the majority138 of the in 1924, declaring for cooperation with the Radicals, and Meh medalija Mahmutović, a former Shariʻa judge from Novi Pazar. - In Bosnia and Herzegovina, the January 6 regime 139retired As early Salih as Safvet1923, Mutapčić and A. R. Prohić as justices of the Supreme Shariʻa Court in Saraje vo. They were replaced by A. Bušatlić and Ibrahim Sarić. havingthe last preferred of these had, Roman as a topro-regime Cyrillic script figure, in administrationbeen appointed at director the school. of the Shariʻa Judicial School, replacing Muhamed ef. Dizdar, who was accused 140of- - ligiousThis Council ramping of the up Islamicof the influence Religious of Community political factors to the on relevant the Shariʻa govern judiciary is confirmed by an official statement directed by the Supreme Re - ment authorities, dated January 23, 1932. It requested that persons with neither the relevant qualifications nor the authority not be allowed to in Community.”terfere in the appointment of Shariʻa justices, “who are the only proper representativesThere was141 a ofsea Shariʻa change legal in the jurisdiction political orientation and of the of Islamic the factors Religious exer-

cising136 influence over the Shariʻa judiciary after 1935. Under the influence-

Suljo Haznadarević, a Muftî�ate trainee in Peć was suspended over public expression of su pport for the Democratic Party — statement by former Shariʻa justice Vejsil Kadić from regimeSarajevo in made BiH, tobut the a Serbauthor under on July the 20, Radicals. 1984. He ended up a member of SRNAO. (Pravda, 137 A good example of this is a qadi from Č�ajniče, who was a Croat under the Austro-Hungarian 138 Novo vrijeme, May 3, 1930, Pravda 139 NovoJune 21, vrijeme 1924). Pravda, November 13, 1923. , April 2, 1924. Glasnik VIS , August 24, 1929. 140 141 , no. 3/1934, 174. 115 Fikret Karčić / Shari'a courts in Yugoslavia 1918-1941 been prominent as supporters of the earlier regime now began to be re- of the JMO, which had now joined the government, individuals who had moved from the Shariʻa courts. - selves.There was no way for the Shariʻa courts to be insulated from political influence since they were institutions born of political compromise them

4. The Functioning of the Shariʻa Courts - The Muslim population was subordinated to a specific material and proce dural form of law since they were subject to the jurisdiction of the Shariʻa- tiescourts. vis-à-vis This determined,modern judicial in its procedure important as aspects,applied inhow the the regular Shariʻa Yugoslav courts courtsfunctioned. placed The Muslims general inconcept a different of civil position Shariʻa fromprocedure other andcitizens its peculiari when it came to realising and protecting their individual rights in marital, family, and inheritance matters. At the same time, these circumstances were the - tions entrusted by the state with the same role in private legal affairs. main factor distinguishing Shariʻa from the regular civil courts as institu- - Shariʻa procedural law had been modernised in Bosnia and Herze- govina between 1878 and 1918 under the influence of Austrian legal the ory, thusThey reducing appeared the in differencesthe general betweenprinciples how underlying the Shariʻa procedure and the inregu the lar courts operated. Nonetheless, significant differences remained. different path for realising their rights than was offered to their fellow citizensShariʻa courts of other and religious the specific confessions. regulations that directed Muslims onto a

a) General characteristics and peculiarities of Shariʻa court procedure

- principle,The basic principlesoffering a hearingof Shariʻa to court both procedureparties, the can discussive be boiled principle, down as folthe lows, according to Franjo Kruszelnicki and A. Bušatlić: the adversarial- licity, formal truth, and the legal theory of evidence. use of oral argument, and immediacy at courts of the142 first instance, pub Šerijatsko-sudski postupnik s formularima, 31-32, F. Kruszelnicki, Postupak pred šerijatskim sudovima u BiH 142 A. Bušatlić, 116 , Zagreb, 1917, 21-23. Ch. III / The Structure and Functioning of the Shari’a Courts

This last principle could lead to unjust rulings in the presence of un- scrupulous behaviour by either party or by the justices. According to it, the justice was obliged to consider a claim truthful if the legally prescribed evidentiary means were adduced and to rule favourably in this regard, regardless of his own personal belief, once the discussion had reached a point that was formally susceptible for such a ruling. - tained in the Majalla - nia andThe Herzegovina. regulations governing For anything procedural not adequately law in Shariʻa covered, courts reference were conwas to be had to the procedural and the code provisions for civil governing cases. Shariʻa courts in Bos progress compared to traditional compendia of 143fiqh, the Majalla, as the basic source for procedural norms and standards, was In notspite able of significantto meet all the needs of modern legal commerce or ensure a satisfactory degree of protection for individual rights.

In his view, the main defects includeIn 1919, but were the notShariʻa limited lawyer, to: a A.R. lack Prohić,of regulations144 described governing procedure territorial at the Shariʻajurisdiction, courts judicial as defective assistance and outand of recusal, date. hearings, objections, minutes or a court record for oral hearings, types of judicial decision, third parties in suits, service with court documents and records, the procedure for declaring death. Practically the entire procedural code for non-adversarial proceedings was also lacking. The procedure on evidence was also viewed as entirely out of date. Giving evidence was considered a moral but not a legal duty. It was only valid if carried out in the presence of both parties which could lead to

The justice had no leeway in assessing witness statements. Only in cases wheredifficulties there and was major doubt costs about if a the proposed credibility witness of a witness lived in couldanother the district. justice order an investigation into his or her moral character (tazkiya al-šuhūd). idea that a statement is considered truthful if given by an individual whose probityThis is a is classical not in doubt. institution The moralof Shariʻa character procedural of a witnesslaw. It is was based tested on the by taking statements from neighbours and acquaintances. Given a positive result to such questioning, the court was obliged to accept the statement or statements of a witness. - tutions, considering them as obsolete. One such institution was the šahâda The Supreme Shariʻa Court rejected some traditional procedural insti See Chapter IV. Pravda, September 20, 1919. 143 144 A. R. (Ali Riza), “Naši šeriatski sudovi,”

117 Fikret Karčić / Shari'a courts in Yugoslavia 1918-1941 al-hisba - the actor.. This Such had acts to dohad with to belongqualified to testimony the category which of entailedhuqūk Allah legal (divine conse law),quences which from is theapproximately acts testified equivalent about regardless to the category of the intention of public or law. will For of example, if a man declared before witnesses that he was leaving his wife (talâq bâ in

’ ), and they passed this on to his wife, the Shariʻa court would toexecute end the the marriage procedure, would whether be made at her even request in the or absence as a matter of the of official husband duty. or ofOnce his witnessesconsent. This had very confirmed strict procedure their statements was intended before tothe prevent court, a frivolous, decision in Sarajevo declared this institution obsolete in Ruling no. 185/30, referring tonot-properly-considered the more up-to-date regulations endings to in a themarriage. Majalla The. Supreme Shariʻa Court 145

Confronted with shortcomings like this, some Shariʻa legal experts, like A. R. Prohić himself, suggested taking over the new Ottoman law for Shariʻa courts. This, however, never happened. the Majalla, the in- terestsThe of lack parties of qualified before the advocates court was was to be a problemprotected for by the a general Shariʻa contract courts. ofAccording representation to both ( traditionalwakâla Shariʻa law teachings and lawyers were authorised to). Therepresent history parties of Shariʻa in front judicial of all systems public doesauthori not- know a specific institution of advocacy. Under Yugoslav legal regulations, - minedties, including protection Shariʻa of the courts. interests No particular of the parties. conditions Keeping were in set mind for thatlawyers the appearing before Shariʻa courts, e.g. expertise in Shariʻa law, which under parties themselves were not well versed in Shariʻa law, one gets a clearer picture of the realities of legal protection at the Shariʻa courts. b) Material weaknesses of the Shariʻa judicial system

Beyond these shortcomings and anachronisms in procedural regulations, - stance also had a negative impact on their functioning. This contributed to delaysweaknesses in delivering in how judgementsupervision and was even exercised abuses over of judicial the courts powers. of first in

In 1919, A. R. Prohić wrote that the Supreme Shariʻa Court had not carried out even a single inspection of the courts of first instance in 25 The author possesses copies of the ruling.

118145 Ch. III / The Structure and Functioning of the Shari’a Courts years. Unlike the Austro-Hungarian authorities, who did instruct regu- 146 end of their period of rule, albeit one that could hardly have been particu- larlylar court effective inspectors under tothe conduct circumstances, a review the of Yugoslavthe Shariʻa Law courts on Shariʻa towards courts the Law on Shariʻa courts). Given how short the period for which the Law on Shariʻa entrustedcourts this function to the Supreme Shariʻa Court (article 26 of the -

Therefore, was in force, it remained it was never possible realistic for unresolved to establish probate efficient cases accountabil from 1906, ity structures during the lifetime of the first Yugoslav state (1918-1941).

147 courts1910, 1912, were and still 1920 in existence. to be cited The in thedisorganised Prijedor Shariʻa condition court ofin the1924. Bosnian Academic studies of judicial practice had yet to begin when the Shariʻa from engaging here in any analysis based on primary sources of how the and Herzegovinian Shariʻa court archives has moreover prevented us least, allow one to identify certain weaknesses in how these institutions operated.Shariʻa courts The functioned.principal emphasis Coverage tended from the to becontemporary on dilatoriness press in does,dealing at with probate and endowment (waqf) affairs and on abuses by individual Some of these texts were intended to discredit individ- 148 - Shariʻaties or groups. justices. Leaving such personal factors to one side, one can nonethe- ual Shariʻa justices politically, as members of rival bourgeois political par Illegality and irregularity were apparently most likely to occur in the spheresless identify of marital some andcommon family forms relations, of abuse particularly in the Shariʻa regarding judiciary. the dissolution of marital relations by one-sided declarations from the husbands. of dissolution and denying the wife legally mandated maintenance. Be- foreCertain passage Shariʻa of justicesthe Law were on Shariʻa notorious courts for their very prompt declarations149 - gro enjoyed considerably greater opportunities for abuse. Some of these illegalities even received their own names., muftî�sOne example in Serbia was and the Montene so-called jalan veraset hudžet stamp duty. There were also cases of allowing previously married women to remarry before the (false proper probate legal certificates) dissolution ofissued their by existing some muftî�s marriage for had transpired. For example, poor administration often resulted in the aytâm sandūk).150 The Pravda, September 18, 1919. embezzlement Pravda, of Muslim minors’ custodial funds ( 146 A.Pravda, R. Prohić, November “Naši šeriatski 25, 1923. sudovi,” 147 Pravda, March 21, 1924. 150148 Pravda, 149 November 17, 1923. April 20, 1924. 119 Fikret Karčić / Shari'a courts in Yugoslavia 1918-1941

- ernment courts, they were obliged under the constitution to record their language of business of the Shariʻa courts represented a problem. As gov rulings in the official national language (“Serbian-Croatian-Slovenian” in andthe terminology Montenegro of did the not day generally – article use 3 of Ottoman the Constitution as their nativeof June tongue 28, 1921), and but many muftî�s wrote their decisions in Ottoman. The parties in Serbia of courts in their own country.151 consequently had to procure court-certified translations of the decisions new characteristics emerging only under the framework of the Yugoslav These material shortcomings of the Shariʻa judicial system wereqâdî hadnot been notoriously undermined during the last centuries of the Ottoman state.state fromDuring 1918 the to period 1941. of The Austro-Hungarian moral prestige ofrule the in function Bosnia ofand Herze- govina, the authorities had embarked upon a path of modernising the - ciency, timeliness. Under the Yugoslav state, the immediate need was to dealShariʻa in principlecourts and with promoting the form ain new which enthusiasm the courts for were administration, to survive, how effi to unify their organisational structure across the entire territory of the state, how to put in place modern and well-trained judicial personnel, and so overcome existing weaknesses or shortcomings. Politicisation of the the eradication of abuses, however. A period of more than two decades wasShariʻa simply court not system, long enough from various for all that, directions, and neither prevented were thethe forcesdetermined push- practice powerful enough. ing for change within the framework of the Shariʻa legal discipline and

151 - Similar things happened at the Supreme Shariʻa Court in Sarajevo, albeit to a lesser extent.- Following a Justice Ministry warning, the court issued order no. 235 on April 19, 1926, in Arabicstructing in bracketsthe district (Glasnik Shariʻa VIS, courts no. 1-3 to write their documents in Serbo-Croatian and in ei ther Cyrillic or Latin script. Shariʻa legal provisions or technical terms were to be given in 120 /1945, 28). CHAPTER IV

Law in Yugoslavia The Sources and Character of Shariʻa - out examining the sources on which they based their rulings and conducted theirNo presentation courtroom ofprocedures. the Shariʻa Thecourts following in Yugoslavia review would will cast be complete more light with on

Yugoslaviaour general took account in practice of how and Shariʻa its degree law was of orientationimplemented towards in government both the classicalShariʻa courts. forms Weand shall contemporary also attempt attempts to establish to update the formthose Shariʻa forms lawof the in sort already then underway in some Muslim countries. We will also investi-

Yugoslavgate whether legal the system. reforms In theof Shariʻa end, we law shall came attempt about to under determine the influence the legal, of the Shariʻa judiciary or were rather because of more general trends in the Yugoslav national legal system. theoretical and practical relationships that existed between Shariʻa and the

1. The Sources of Material Shariʻath Law is marked by the absence of any creation of general legal rules by national Shariʻalegislatures. law existed The fact in thatun-codified this system form of well law intois essentially the 19 century. based on Shariʻa religious law sources has meant that only experts in religious disciplines could be considered authoritative interpreters. In the Islamic understanding, the state or national authority is subordinate to the law and the national leader’s main duty121 Fikret Karčić / Shari'a courts in Yugoslavia 1918-1941

1 This way of looking at the state and its role is what lies behind the quite independent development of Islamic law in is to protect and implement Shariʻa. teachers and was contained in legal works to which the state only provided its sanction.the history One of Muslimmay therefore states. properlyShariʻa law say developed that the history within of circles Islam ofhas religious known great lawyers and legal scholars, but few law-giving rulers. When a Muslim state has issued its own laws, it has generally considered itself authorised to regulate only such administrative and public-legal issues as are not treated in and equally valid legal interpretations. detailSince by Shariʻa the middle law or of to the give 19 itsth own sanction to one of the already existing- - ropean legal systems as contained century, in civil both codes private and the and resulting official codifica need to tions have appeared in many Muslim countries under the influence of Eu containedprovide unified in collections and representative divided into collections chapters, institutes,of Shariʻa lawand asparagraphs. well as for2 uniformity of judicial practice. Shariʻa law thus appeared in a new form, of all its forms, traditional and modern. It included the works of Muslim The Shariʻa law applied in the Shariʻa courts of Yugoslavia was a mix legal experts, Ottoman state laws and decrees, and private and official codifications and compilations. a) The works of Muslim legal experts

Yugoslavia took several forms. Some were original works presenting the The works of the Shariʻa legal experts relied upon by the Shariʻa courts in- tion of a given legal school. Others were commentaries on original works, inregulations which the and text provisions of the original of Shariʻa was oftenlaw generally explicated after through the interpreta linguistic interpretation or examples, or in the form of collections of legal opinions (fatwâs) issued on real or hypothetical problems. We will now take a brief - dicial system in Yugoslavia. look Theat the work works held which in the enjoyed greatest the esteem greatest in reputationthe Ottoman in Empirethe Shariʻa and ju in those areas where Islam was spread by the Ottomans was a collection of Multaqâ al-abhur

1 Seid Ramadan, Islamsko pravo – izvor i razvoj Shariʻa regulations composedPrilozi zaunder orijentalnu the filologijuliterary title of 2 â Al-madkhal al-fiqhiyy, Sarajevo, al-‘âmm (General1984, 38-42, introduction Mustafa intoImamović, Islam- “Islamski koncept države,” (Sarajevo), XXIV (1974), 165-177. Mustafa Ahmad al-Zarq ’î�, 122 ic legal doctrine), Damascus, 1952, II, chapter on “Islamic law in a new groove.” Ch. IV / The Sources and Character of Shari’a Law in Yugoslavia

1566).(The Confluence This work of was the based Seas) onby whatIbrahî�m were al-Halabî� then current (d. 956/1549), sources of a Islamiclawyer legaland religiousdoctrine and official is both who comprehensive flourished under and Sultantruly representative. Suleiman II (1520- It became the handbook for judges in the Ottoman state, serving as the basis for their decision-making. It was also main textbook in Islamic schools (madrasas). Even after the end of Ottoman rule in the southern Slavic qâdîs continued to be trained on the texts of the Multaqâ and cited it in judicial decisions. Generallylands, for asspeaking long as one the canShariʻa say courtsthat it wascontinued treated to as exist, canonical. 3 In terms of the system it used in presenting its materials, the Multaqâ is an example of casuistics in the Islamic legal sciences. Religious and legal ibâda) are discussed in nine books. The remainder deal with real, obligational, marital, family,regulations inheritance, are presented criminal, in 57 and books. procedural Ritual regulationslaw. Some (‘20 commentaries have been written on the work with the best known4 coming from the title of his commentary is the Majmaʻ al-anhur andpen itof is Mula usually Abdurrahman cited as Damad Š�ejhi-zade. Because Damad-efendi of its accessibility (d. 1078/1667). and the expan The- siveness of its explications, this commentary is (Thecited confluenceeven more frequentof rivers)- 5 6 was a commentary on thely in Tanwîr Shariʻa al-absâr judicial (Thepractice illumination than the original. of views) composed under the title of Al-durrThe next al-mukhtâr work esteemed by the Shariʻa courts fiqh in terms of content and systematisation. (The chosen pearl) This commentary by Allaudin was el-Haskefi itself com (d.- mented1088/1677), upon ain muftî� Radd from al-mukhtâr Syria. This (The work selected follows answer), all other which works was of cited

7 inFath Shariʻa al-qadîr judicial (The practice mighty in victory), Yugoslavia Durar after al-hukkâm its author, (The Ibni pearlsAbidin. of the Other works cited in the decisions of the Shariʻa courts include the 3 Islamsko pravo u Bosni I Hercegovini, 23; Cf. e.g. circular no 180 of the Su- Glasnik VIS, no. Eugen Sladović, Glasnik VIS, while citing a circular of the preme Shariʻa Court in Sarajevo (henceforth SSCS), dated March 18, 1924, 1-3/1945, 19-20. (When reference is made to the SSCS, this refers to the Zbirka naredbi i okružnica za šerijatske sudove u BiH 1900-1944, 5 edited by Abdulah Š�kaljić.) Glasnik VIS 4 E. Sladović, op. cit., 24. 6 Cf. SSCSSSCS circularcircular no. no. 180 267, dated July 4, 1917, Glasnik VIS,, no.no. 1-310-12/1944, 191-192,SSCS Order SSCS no.Order 813 no. šer., 813 šer., dated December 30,Zbirka 1897, Zbirkanaredaba naredaba za šer. Sudove,za šer. Sudove, 254. Cf. SSCS ruling no. 170 , dated March 18, 1924, SSCS circular no. /1945,267 19-20, Glasnik VIS, no.dated 10-12 December 30, 1897, 254. 7 , dated March 14, 1931, , dated July 4, 1917, /1944, 191-192. 123 Fikret Karčić / Shari'a courts in Yugoslavia 1918-1941 judges), Muhît (The Ocean), Al-bahr al-râ ik (The deep sea), and Fath al- muʻîn (The useful victory) among many others.8 ’ opinions, particularly the Al-Fatâwâ al-Hindiyya (Indian fatwas). In fact, this workThe Shariʻa was composed courts also thanks held into highan initiative esteem severalby the Moghul collections leader, of legal Mo-

- hamed Eureng Zib Alemgir (d. 1118/1706) and represented an attempt to courtscodify Shariʻaof Yugoslavia. law in 9the form of legal opinions. It enjoyed a great reputa tion Al-fatâwâthroughout al-tatarhâniyya the Islamic world (the Tatarhanand consequently Fatwas) is also a collection in the Shariʻa of le- Hanafî at the behest of the viziers of two of the Moghul rulers of Tatarhan.10 gal opinionsThe Fatâwâ written al-ankarawî by Alim (Fatwasbin ’Ala al-of the Ankaran) (d. after was 752/1351) written by made the - was were ordered according to the usual systematisation of works of fiqh.11 ShaykhA number of Islam, of Muhamad other collections al-Ankarawî� are (d. also 1098/ cited 1686). in the In decisionsthis case, the of fatthe Bahja al-fatâwâ (The splendour of legal opinions), whose Al-fatâwâ qâdîhân (The Kadi-han Fatwas), whoseShariʻa authorcourts: died in 592/1196, Al-fatâwâ al-Bazzâziyya (The fatwas of author died in 1156/1743, Al-fatâwâ al-Zayniyya (The Fat-

Bazzaz), whose author died in 827/1424, legalwas of opinions Zayn), whose found authorin the works died in of 970/1563, legal experts etc. hailing from all parts of the IslamicGenerally, world one (from may say Arab that countries, the Shariʻa through courts Central in Yugoslavia Asia, to applied India). These works appeared at different times (from the 12th to the 18th centu- and conditions of their times. ries of the common era) and reflected both the concrete circumstancesth century, especially during the ongoing process of transition from an oriental andThe Islamic realities culture facing to Yugoslav a Western Muslims European during one, theposed first new half demands of the 20 in now accommodate included: whether to restrict the right of the husband to endthe areathe marriage of Shariʻa unilaterally, law too. For whether example to news give thequestions wife the that right Shariʻa to appeal had to

8 Cf. SSCS circular no. 327 Glasnik VIS

, datedGajret September, 1930, 38-39. 24, 1923, , no. 1-3/1945, 16-18, B. (A. 9 Cf.Bušatlić), SSCS circular “Razvod no. braka 327 u slučajevima muževe neimaštine,Glasnik VISsiromaštva i nesposobnosti za 10 Cf.uzdržavanaje SSCS judgement svoje žene,”no. 528 , dated December 29, 1923, issued by H. A. B. in Mjesečnik, no. 2/1925, 313-316. , dated September 24, 1923, , no. 1-3/1945, 16-18. 11 Cf. SSCS circular no. 260 Glasnik VIS

, dated June 24, 1918, , no. 10-12/1944, 196-197.

124 Ch. IV / The Sources and Character of Shari’a Law in Yugoslavia the court for divorce outside the cases treated in the classical legal texts, whether to continue to maintain the classical individualistic conception of religious endowments, whereby the endower has an exclusive right to determine the intended use of an endowed good, whether the will of the bene- factor is to be respected regardless of changed circumstances, and whether to retain the principle of the inalienability of endowment property. The classical works of the Muslim legal experts offered no solutions in such cases for the simple reason that these problems had not existed at the

- sibletime solutionwhen they had wrote to lie intheir renewing works. the On legalthe otherthought hand, of Islam. the Shariʻa But the justices Islam- iccould Religious not in Communityprinciple search and Yugoslaviafor solutions did outside not feel of itselfthe Shariʻa called law.upon, Any within pos law. For many different reasons, they preferred to selectively accept reforms alreadythe context carried of the out Islamic in Ottoman world, Turkey to initiate and in an Arab independent countries, reform primarily of Shariʻa Egypt.

- It was with this aim in mind that they carried out both an official and a linepractical of the reception reform movement of reformist in Islamic Ottoman legal laws studies and decrees were excerpted and codifica and tions and compilations of Shariʻa law, while legal opinions that reflected the incorporated into circulars and orders from the supreme Shariʻa courts. b) The reformist Ottoman laws and decrees

Ottoman state regulations characteristically took a variety of different approaches towards Shariʻa law: some represented government sanction of- tent.specific The Shariʻa regulations legal interpretationsof the state legislation while others in the embodiedOttoman Empire greater ap or- lesser deviations from Shariʻa. Some even introduced entirely new con Because of this, some of these regulations, if they had not been explicitly alteredplied equally or rescinded to the inwhole the meanwhile, population in regardless fact already of appliedreligious to affiliation. the entire population in Bosnia and Herzegovina even after the end of Ottoman rule.

Over time, these regulations came to be applied only by certain specific bodiesThe and regulations depending of theon the reformist religious Ottoman affiliation laws of and the decrees affected dealt citizens: with mattersShariʻa courts of (real) for property,Muslims andthe so-calledregular civil miri courts system for of non-Muslims. inheritance, coming-of-age, the protection of minors and orphans, and so forth.

125 Fikret Karčić / Shari'a courts in Yugoslavia 1918-1941

The Ottoman land law, known as the Arâdî qânūn or the Law of the seventh of Ramadân, 1274 12 It contained an state land, on possession of, was this issued land, itson transfer,April 21, inheritance,1857. and rever- introduction with definitions of the various types of land, a first section on principles to be applied to uncultivated or waste land, and a third section onsion varia. to the The state, law recogniseda second section various on categories public land, of land: its definitionland in unrestrict and the- ed personal ownership (mulk), land owned by the state, but where the rental agreement (arâdî miri), land belonging to Islamic endowments (rightarâdî of mawqūfa use or benefit belonged to private individuals on thearâdî basis matrâ of a- ka), and uncultivated or waste land (arâdî mawât). Under a revision), land of retained the Law for of thepublic 17 thuse of Muharram,and benefit 1284 ( (May 21, arâdî miri was regulated. Given their origin and character, both the Arâdî qânūnâma and the re- 1867),vision representedthe specific orderan initial of inheritance approach tofor shaping the law in accordance with national feelings at a time when they were still largely unexplored in the Ottoman Empire. On the one hand, these regulations retained certain withinstitutions local Ottoman and ideas customs. from Shariʻa In this law, way, while, while on the the roots other, of they many suppressed of the in- stitutionssome Shariʻa may regulations no doubt be through found in their early legal Muslim constructions, history (waqfs, replacing arâdî them miri, etc), a new approach was being introduced to the inheritance (intiqâl aI- ‘âdî) of miri properties that represented a radical departure from tradition- farâid).13 Bearing in mind that miri property in- inal Shariʻaconcluding inheritance that the law revision ( of the arâdî qânūnâma exempted a major partcludes of meadows, the cultivable pastures, land arableof the land,Ottoman woodlands, Empire etc.from , one the is application fully justified of - - sitionShariʻa of inheritance miri property law. by Still, testament), aside from the giving land alaw specific did stipulate order of that inheri the tance and certain other departures from Shariʻa (e.g. forbidding the dispo whichprinciples a right and to regulations inherit was of attained, Shariʻa the inheritance call to probate law continued hearings, toand apply the rightwith toregard inherit to ofdefining children the born idea posthumously of inheritance, or determiningout of wedlock. the The point Otto at- man land law thus retained the guiding idea of Ottoman legislative reform in its conceptual apparatus – the journey towards modernisation.

12 Development of the Shariʻa Under the Ottoman Empire, 286-288. 13 Šerijatsko nasljedno pravo Ebulʻulâ Mardin, 126 Cf. A. Š�kaljić, , Sarajevo 1941, 108-109. Ch. IV / The Sources and Character of Shari’a Law in Yugoslavia

During the period of Austro-Hungarian occupation in Bosnia and Herzegovina, article 1 of the Law on the land registry of September 1, - th 1884, entailed retention of theth procedures for determining the legal na turethe Yugoslav of property Law and on the orderinternal of organisation,inheritance set establishment, out in the laws and of correc the 7 - oftion Ramadan, of land registry 1274, and books the 17 of Muharem, 1284. The same was true of The situation was slightly different in other parts of14 Yugoslavia.15 Af- ter the Balkan wars and theof May annexation 18, 1930 of (article the newly 87). liberated areas to

- manSerbia land and law Montenegro, nor its revision application were ofretained the Serbian in force civil by code any of regulatory 1844 was provisionextended toin themso-called under southern a decree Serbia of February (the Sanjak, 17, 1914. Kosovo, Neither and theMacedo Otto- nia). One may therefore conclude that application of the Arâdî qânūnâma - authorisedwas tacitly suspendedto hold probate by the hearings order of for February Muslims 17, as 1914. judges In ofpractice, choice, how con- tinuedever, the to resultdistinguish was areal certain property degree in terms of havering. of its legal The character muftî�s, who as miri were or mulk, applying the Arâdî qânūnâma

to the first and the provisions of Shariʻa inheritance law to the second. This wasArâdî the caseqânūnâma up to February was no lon 12,- 1921 when the Supreme Muftî� for Serbia and Montenegro issued rescript compendiumno. 127 warning during the districtprobate muftî�s hearings that for the Muslims. ger in force and that they were to rule on the basis of the Shariʻa legal of the Ottoman land law himself since this was under the jurisdiction of the nationalThe legislature.Supreme Muftî� He was did merely not have stating the authority the situation to suspend on the ground application after applicability of the Serbian civil code had been declared. In rescript no. 131

thatof March legally 14, the 1931, Arâdî the qânūnâma Supreme Shariʻa had remained Court in valid Skopje for countered the territory this of view, the strongly argued by Hamdija Azabagić in the literature, with the position Ottoman land law would continue to apply to any probate hearing on the estatecourt up of tosomeone the Supreme who had Muftî�’s died rescript before ofthat February date and 12, the 1921, regulations so that the of 16

Shariʻa Ibid., inheritance 105. law to the estate of anyone who died after it. 15 14 šerijatskog suda u Skoplju,” Glasnik VIS, no. 12 16 Hamdija M. Azabagić, “Primjena i važnost zakona ‘Erazi kanunama’ na području Vrhovnog /1935, 537-542. Ibid., 541.

127 Fikret Karčić / Shari'a courts in Yugoslavia 1918-1941

This meant that after 1921 the inheritance rights of Muslims were dealt with under one set of regulations in Serbia, Macedonia, and Monte- negro, but under another in Bosnia and Herzegovina and the other areas. law,In the as first contained case, everything in the classic entering compendia. into the However, estate of anin theindividual second of case, the Islamic confession was dealt with in accordance with Shariʻa inheritance while property over which the deceased only had a right of use that were dealtShariʻa with inheritance under the law revised was only Ottoman applied land to law.things in absolute ownership, The Ottoman law of the 16th of Dhu al-Hijja, 1286, (March 20, 1869) dealt with the question of the coming-of-age (majority) of citizens of the distinguishes between physical and psychological maturity (bulūg and rushdOttoman). Whether Empire. a Itparticular was based individual on the conceptshad reached of Shariʻa maturity law. was This deter law- fully agree upon the temporal boundaries according to which one might properlymined by consider the facts aon minor the ground. to have Thereached interpreters psychological of Shariʻa maturity law did which not manifested itself as the capability to manage property rationally. Given these circumstances, the Ottoman Empire had, under article 13 of the law of the 16th of Dhu al-Hijja, 1286, and drawing upon the recognised opin- place no later than the end of the 20th year of life (20th birthday). ions Thisof Shariʻa law applied legal experts, to the entire determined population that inthe Bosnia onset andof maturity Herzegovina took

1919. The question then arose as to whether the law of 16 Dhu al-Hijja stilluntil applied the adoption to Muslims, of the whoYugoslav would law now on attainreaching majority majority a year in July earlier 31, than the rest of the citizens of Yugoslavia (at 21 years of age).

that Inthe at law least of 16oneth Dhuconcrete al-Hijja, case, 1286, the continuedSupreme Shariʻa to apply Court to Muslims. in Sarajevo The explanationissued a ruling was (no. that 407 the of Yugoslav September law 25, on 1923) reaching expressing majority the was viewpoint valid in general for all citizens in the Kingdom of Serbs, Croats, and Slovenes in all -

Muslims,cases where the specific question other as to laws when did and not how determine a Muslim otherwise. minor attained As the appli men- cation of Shariʻa law was guaranteed in questions of the personal status of 16th of Dhu al-Hijja. tal maturity was governed17 by Shariʻa regulations, including the law of the - sti,” Arhiv 17 A. Bušatlić, “Da li je dosta 20 godina ili je potrebno 21 godina života za proglas punoljetno 128 no. 1/1925 (vol. XI/XXVIII), 60-64. Ch. IV / The Sources and Character of Shari’a Law in Yugoslavia

The Ottoman decree on orphans, known as the Aytâm nizâmnâma, was adopted on the 5th of Dhu al-Hijja, 1268 (September 20, 1851). Along with th the main legal source for regulating the protection of orphan property via the decreeso-called of theaytâm 7 Rabî�’sandūk al-awwal, (custodial 1268 accounts). (December18 31, 1851), it provided- plied the provisions of these decrees when forming Muslim custodial accounts. Particular attention was paid to preserving the The property Shariʻa in courts the same ap debts of the estate had been paid off, custodial accounts were formed, and condition as it was left in at the time of death. Once any verified outstanding These decrees were not promulgated separately in Bosnia and Herze- the funds were invested at interest to benefit the orphans. - gal situation. There is an order by the Provincial Government for Bosnia govina. The Shariʻa courts applied them in order to retain the existing le- fers to application of the provisions of the Aytâm nizâmnâma when de- claringand Herzegovina, an individual (no. of 234 age. 710/III-719 dated November 14, 1918) that re - served the provisions of these decrees in practice up until 1929 when The muftî�s on the territory of Serbia, Macedonia, and Montenegro ob places entailed a lower level of security of property for minors in ward- shipforming than Muslim in Bosnia custodial and Herzegovina. accounts. The This absence situation of Shariʻa changed courts after in these1929

Ottoman laws were also applied to the administration of waqfs or en- dowedhowever trusts. with Thethe establishmentConstitution of of the the Islamic Shariʻa Religious courts. Community of Oc- the law of the 10th tober 24, 1936 stipulated explicitly in article 219 that the provisions of- tional endowments of not Safar, furnished 1290 (April with a9, pension. 1873) would20 continue to apply to any appointments to religious offices or positions in religious or educa

c) Private and official codifications and compilations of Shariʻa law during the mid-19th century on in the Islamic world. Governments in cer- Attempts to codify individual areas of Shariʻa law had begun to appear-

18tain Muslim countries as well as prominentArhiv, Shariʻa legal experts support 19 Glasnik VIS, 20 SlužbeneCf. Bora A. Novine, Milojković, no. 256-LXIV, “Itam sanduk,” dated Novemberno. 2/1925 5, 1936. (vol. XI/XXVIII), 153-157. no. 10-12/1944, 199-200. 129 Fikret Karčić / Shari'a courts in Yugoslavia 1918-1941

ed these efforts. Practically all these attempts at codification were present- in the Shariʻa legal theory and practice in Yugoslavia.de Somefacto reception.of them found applicationThe Majalla-i through ahkâmi the continuity ‘adliyya or of Majalla the Shariʻa is a civil judiciary law collection from the based Otto manupon period, the the while Hanafî others legal schoolenjoyed of either Islamic official law.21 orIt represents the work of the Ottoman reform movement of the mid-nineteenth century and contains provisions relating to property, contracts, compensation, adverse - dure. Therefore, it may properly be termed a codex of property law. It con- tainspossession 1851 ofarticles, other spreadpeople’s across property, 16 books, and judicial gradually or courtroom published procein the Dustūr The Majalla - tiesOfficial in the Gazette public of life the of Ottoman the Empire Empire, which advocated, between for a 1870civil code and based1877. on Islamic legal was doctrine, adopted against thanks thein part efforts to theof secular influence Ottoman of religious politicians par who promoted adpoting the French Code Civile. Given its sources and the forces that stood behind it, the Majalla was one of the most important resources for preserving Islamic institutions at a time when the Ottoman Empire was quickly transforming from an oriental and Islamic social order to a Western European one. While much praised, the Majalla came over time and particularly after the establishment of constitutional order in Turkey in 1900 to be increasingly exposed to a dual form of critique. Islamic legal circles objected to its limited sources since it was based exclusively on interpretations of the Hanafî legal school and suggested that incorporating opinions from other legal schools was a good idea so long as they adequately expressed the public interest under changing social circumstances. On the other hand, European-educated intellectuals took the view that a legal code based upon the unchangeable sources of Islam simply could not meet the needs of a society undergoing radical change. The Ottoman government did not allow any changes to the Majalla, drafted using concepts from French law, suppressed many of its provi- sionsbut the governing 1880 Law procedure on civil judicialin the Ottomanprocedure civil and courts. the Rescript The Majalla of 1914, remained in force in the Ottoman Empire up until 1926 when the govern- code. ment in Ankara decided to adopt the Swiss codification as its civil legal

21 The Majalla,” in Law in the Middle East, I, 292-308.

130 S. S. Onar, “ Ch. IV / The Sources and Character of Shari’a Law in Yugoslavia

Outside of Turkey, the Majalla continued to be applied in the Arab countries that came under the administration of the European powers as disintegration of the Ottoman state as well as in Cyprus and in Yugoslavia. Themandates case of (Palestine, the Majalla Trans-Jordania,, which continues Syria, in Lebanon,force in some and Iraq)of these after coun thethat legal creations can take on a relatively independent existence and not infrequentlytries even today, outlive confirms the states one ofwithin the few which laws they in political came into and being. legal 22history, The continued validity of the Majalla in Bosnia and Herzegovina was based upon an Imperial proclamation to the people of Bosnia and Herzegov- ones are promulgated.”23 Not long afterwards, the Austro-Hungarian admin- inaistration in 1878 gave which its sanction made clearto large “The parts old of laws the Majallaretain their validity, untilCom new- pendium of laws and decrees for Bosnia and Herzegovina (the Sammlung der fur Bosnien und die Hercegovina erlassenen Gesetze, Verordnungen in its own official und Nor- malweisungen). The regular civil courts were required to apply the Majalla as the law of the24 land with regard to the entire population of Bosnia and Her- the Majalla in the original, however, and the absence of an appropriate translation, as well as the tendency zegovina.towards Europeanisation The inability of court of the officials law in Bosnia to use and Herzegovina, resulted in it being crowded out of the regular civil court system and de facto reception of - tion that local courts in Bosnia and Herzegovina ruled on the basis of sound commonthe Austrian sense, general the district civil code courts (OGZ). on Thisthe basis was vividlyof the Austrianexpressed general by the civil no code, and the Supreme Court on the basis of The Majalla-i ahkâmi ‘adliyya.25

Bosnia and Herzegovina continued to apply the Majalla, both in matters of Even after the Austro-Hungarian occupation, the Shariʻa courts in entire national territory of Yugoslavia, this application of the Majalla was material and of formal law. With the extension of the Shariʻa courts to the basissystematised, for their thoughcustomary some practice muftî�s andon the personal territories judgement. of Serbia,26 Macedonia, and Montenegro had been using the codification even before that as the 22 Zbornik radova iz pravne ibid.rije posvećen Albertu Vajsu 23 Albert Vais, “Neke specifične zakonitosti u istorijskom razvoju prava,” Mjesečnik no. 8 , Belgrade, 1966, 14-15. Mihajlo Zobkow,Pravnik “Primjenjivanje položaj i unutrašnjopolitički austrijskog općeg razvitak građanskog BiH od zakonika 1878-1914 u BiH,”, 39. 25 /1921, 314. 2624 M. Imamović, - M. Zobkow, op. cit., 355. the Majalla into Serbo-Croatian for publication in Glas CrnogoracaWanting to improve no. 6 (February public understanding 11, 1912) and ofno. Shariʻa 10 (March law, the10, Montenegrin1912). Muftî� Karađuzo vić translated major sections of 131 Fikret Karčić / Shari'a courts in Yugoslavia 1918-1941

The application of the Majalla

in the Shariʻa courts was grounded in the customary practice of the Shariʻa judiciary, the high reputation the regularlycollection referred enjoyed toamongst the codex Shariʻa in their lawyers rulings or andlegal circulars. experts, and the fact that Thethe Majalla-iSupreme ahkâmiShariʻa ‘adliyyaCourt in Sarajevo and later the one27 in Skopje- 28 It was one of was also used in drafting the first over views of the various branches of Shariʻa law in Serbo-Croatian. - vo.the Thebasic original collections text usedof the for code educating in Ottoman Shariʻa was justices regularly at the used Shariʻa both Judicial in the courtsSchool andand in later teaching the Higher even when Islamic a translation Shariʻa and into Theological Serbo-Croatian School did in Sarajeexist.29 Al-ahkâm al-sharʻiyya fî al-ahwâl al-shakhsiyya) is a well-known legal work whose author, Mu- hamed“The Kadri-Pasha Shariʻa regulations (1821-1886), on personal was an Egyptianstatus” ( scholar and statesman.

He is remembered in history for his attempts to codify Shariʻa law. He wrote three works to this end: the above-mentioned “Shariʻa regulations (onMurshid personal al-hayrân status,” ilâ a maʻrifa codification ahwâli of al-insân civil and obligational law entitled- cles“Guidelines and was for approved the bewildered by the Egyptian to teach government them about in human1890, and situations a compi “- ), which comprises 941 arti on justice and equitable dealing in adjudicating disputes over endow- lationments” of ( QânūnuShariʻa regulations al-‘adlî wa onal-insâfî endowments, li al-qadâ’ that ‘alâ was mushkilât titled “Regulations al-awqâf), 30 and was comprised of 646 articles. Ahkâm sharʻiyya regulations).Of these threeThe work works therefore by Kadri-pasha, served as the an Shariʻa authoritative courts incollection Yugoslavia of used only the first citing it in shorthand as the (Shariʻa regulationsShariʻa legal on regulations marriage, in its both legal Egypt consequences, and Yugoslavia, and how at the to sameterminate time. it;It thecontains second 476 part articles deals and with is dividedkin relations, into three parents parts. and The children, first part guardian contains- inheritance law.31 Kadri-pasha did not introduce any material changes into ship, testaments, gifts, and missing persons; the third part deals with Shariʻa Cf. SSCS circular no. 180 Glasnik VIS no. 1-3 28 O vakufuu (Šerijatsko vakufsko pravo) Po- 27 rodično i nasljedno pravo, dated muslimana March, Sarajevo,18, 1924, 1926. /1945, 19-20. 29 MajallaCf. M. A. ahkâmî Ć�erimović, sharʻiyya (Ottoman Civil Code), Sarajevo, 1906., Sarajevo, 1935, A. Bušatljić, 30 Abbâ (Islamic law: horizons and development)

31 s Husnî� Muhammad, , Mecca, 1402/1982, 237. 132 E. Sladović, op. cit., 25 fn. 105. Ch. IV / The Sources and Character of Shari’a Law in Yugoslavia

European law code, though even here he was not quite consistent. (For example,Shariʻa law,he did simply not discusspresenting testaments the existing in the material part dedicated in the form to ofinheritance a modern law, but along with other family law relations. He discussed gifts in the same place, while according to European systematisations this would belong under obligational law). The Ahkâm sharʻiyya - slavia. It was introduced in de facto considerable use of it in dealing collection with was marital not officially and family recognised disputes. in32 ItYugo was ways, as Shariʻa magistrates made 33 One thing that was partic- alsoularly used interesting in theoretical was the treatment fact that the of collectionShariʻa law was and taken in teaching over almost at the in Higher Islamic Shariʻa and Theological School. -

Regulations,”its entirety into which the compilation we will discuss of Shariʻa later. family and inheritance law pre paredThe by Ottoman Hasib Muradbegović family law (hukūk-ı under theâile name karârnâmesi “The Interpreter of Shariʻa

(karârnâma) of the 8th ) is a codification of- provedShariʻa maritalby the Shaykhand, in al-Islampart, family and law.sanctioned It took theby thenform Ottoman of a legal Sultan, order of Muharram, 1336 (May 17, 1917) and was ap theMehmed Lebanon. Reshad. It is stillThis in law force was for applied Muslims in inTurkey Israel up and until the ShariʻaSunni Muslim courts communitywere abolished in the and Lebanon. even after that in Syria, Trans-Jordania, Palestine and The promulgation of the34 Ottoman family law represents the begin-

- tions,ning ofby so-called updating modernisingthose parts of legislation the traditional in the instrumentarium history of Shariʻa that law, are consideredwhich is defined mediaeval as “the and attempt consequently to adapt inapplicable Islam to contemporary in the modern condiage.”35 The redactors of this law did not limit themselves to dealing with the rul- andings spiritof the of official the time legal better. school It ofis theworth Ottoman noting Empire. that this They law alsoalso acceptedcontains the opinions of other legal schools if they considered them to fit the needs millets) own religious law. These regulations regarding marriages of (Orthodox) Christians and Jews that 32are inCf. theSSCS spiritjudgement of no.their 528 communities’ ( Mjesečnik no. 7 - Testament u šerijatskom, dated pravu December 29, 1923, issued by A. Bušatlić in 33 /1925, 313-316; ruling no. 395 of the court , inBelgrade, Kočani, 1936.dated March 31, 1933, in Alija Sila jdžić, An Introduction to Islamic, LawSarajevo, 1941, 131. 35 Ibid.,This collection 100. is often cited in M. Begović’s 34 J. Schacht, , Oxford, 1964, 103. 133 Fikret Karčić / Shari'a courts in Yugoslavia 1918-1941 provisions are left out of the translation into Serbo-Croatian which is understandable given that in Yugoslavia the law would only ever be applica-

The law introduced certain novelties into the traditional practice of ble in front the Shariʻa courts and for Muslims. of intent to contract marriage), settled that Muslim marriages could only applied Shariʻa law. It introduced marriage banns (advanced declaration - iansbe celebrated of the right in Shariʻa to contract court rooms,marriages that in any the extrajudicial name of their dissolution underage of wards,the marriage and introduced had to be electiverecorded family with courtsthe Shariʻa to deal court, with deprived disagreements guard between spouses.36 The Ottoman family law continued to be applied in Yugoslavia until -

Court1929 onin Sarajevothe territory even of though the Supreme that court Shariʻa had Court recommended in Skopje. itThe to codificathe Bos- niantion wasand Herzegoviniannever officially provincialaccepted ongovernment the territory in 1918 of the under Supreme petition Shariʻa no. times after that but without success. The law was applied on the territory 277/18. The issue of official acceptance37 of the law was raised a number of Skopje most probably because of the continued presence of Ottoman ad- ministrativeof the Supreme traditions. Muftî�ate The in Belgrade idea of acceptingand later thethe SupremeOttoman Shariʻafamily lawCourt was in not completely given up until the closing ofOttoman the Shariʻa family courts law in certainly Yugoslavia in- as is clear from the fact that the law was printed in Serbo-Croatian in 1945. Even if not officially recognised, the fluenced practice in the Shariʻa courts in Yugoslavia. Its legal rulings are- tionspresent which in the the decisions law had of adopted the Shariʻa and courts which whilemarked the the calls beginning for reform of of a Shariʻa law in Yugoslavia and the remit of the Shariʻa courts aimed at solu Ahkâm al-awqâf) or to give it its significant period in the history of Shariʻa law. - ment“Regulations funds” (Ittihâf on al-akhlâfendowment fî ahkâm funds” al-awqâf ( ) Is a well-known collec- full name “A gift to later generations on the regulations regarding endow Omer Hilmi-effendi, President of the appeal court in Istanbul and a rec- ognisedtion of Shariʻa expert onregulations endowment on issues,trust funds the work and wasendowments. printed in WrittenIstanbul byin mas’ala) that relate to endowments, their validity, establishment, type, administration, oversight, and 1307/1889. It contains 482 legal cases ( 36 Ženitbeni zakon ‘Hukuki aile kararnamesi , Ibid., 3. A. Š�kaljić, ’ Sarajevo, 1945, 4. 37

134 Ch. IV / The Sources and Character of Shari’a Law in Yugoslavia so forth. This work illustrates particularly well the fundamental weakness th and early 20th centuries – their inability to free themselves from the casuistic sys- oftem the of codifications the classical worksand compilations on Islamic legalof Shariʻa science. law from the 19 waqf affairs.38 the systematicThe Shariʻa presentation courts adhered of material closely toendowment this work lawin their and dealingsin hearings on on contested issues “The regulationsaffecting Islamic on endowment-funds” endowments.39 were also used in in Vienna in 1883 under the title Eherecht, Familienrecht und Erbrecht der MohamedanerOne should nach also mention dem Hanafîtschen the Austrian Ritus compilation (Marital, of family, Shariʻa and law inheriissued- tance law of the Mohammedans according to the Hanafî rite) as an attempt to set out the material of this area of law in a representative manner in the orofficial state language judiciary of thus the contributingMonarchy. It towas the supposed uniformity to shelpof adjudication. establish more The collectioncomplete oversight was divided over into the threeShariʻa sections: court system marital as alaw branch (articles of the 1 nationalthrough

- 332),ing that family a number law (articles40 of the provisions 333 through of Islamic 486), and law inheritance had not been law validly (articles re- 487 through 577). Shariʻa legal experts objected to the compilation stress compilation, never mentioning it in their rulings. They had no obligation to produced. The Shariʻa courts themselves essentially paid no attention to the as law. It was, for the most part, of an informative character utilized gener- do so since the Austrian compendium of Shariʻa law was never promulgated Hanafî madhab on mar- ally by lawyers who didn’t know Arabic or Ottoman. “The interpreter of Shariʻa regulations of the riage, family, and inheritance” is a compilation of Shariʻa regulations put Onetogether of the by rare Hasib copies Muradbegović. of the book Themay collectionbe found in was the printed Gazi Husref in the Bey final li- braryyears inof Sarajevothe Second under World call Warnumber and 1155 was, withunderstandably, the evident marksnever finished.of galley proof corrections. 41 “The interpreter of Shariʻa regulations” is divided into three38 books: IŠerijatsko-sudski – Shariʻa marital postupnik regulations; s formularima II – on legal relations between 39 O vakufu. A. Bušatlić, , Sarajevo, 1927, 74. M. A. Ć�erimović, Tumač šeriatskih propisa Hanafîjskog mezheba o ženitbi, obitelji i nasl- 40 E.jedstvu Sladović, s važnijim op. cit., okružnicama 25-26. Vrhovnog šerijatskog suda, Ulamâ medžlisa I Šireg savjeta 41 Hasibreis-ul-uleme Muradbegović, i s osvrtom na građansku i kanonsku ženitbu I obiteljske odnose,

Zagreb 1944, Naklada Ministarstva pravosuđa i bogoštovlja, 561. 135 Fikret Karčić / Shari'a courts in Yugoslavia 1918-1941

- th parentsprinted inand an children; annex along III – with Shariʻa the testamentarydecrees of the and Austro-Hungarian inheritance law. author A Ser- bo-Croatianities in Bosnia translation and Herzegovina of the Ottoman on the law family of the and 17 inheritanceof Muharram, affairs 1274 ofis Muslims, the Law on the form of the last will and testament of members of all faiths other than the Muslim lesser-known words and a concordance of paragraphs from the Egyptian Ahkâm sharʻiyya and this work. of January 11, 1912 and an alphabetical list of - cation by Muhammed Kadri-pasha (the Ahkâm sharʻiyya - ulations“The are Interpreter given in theof Shariʻa main text, regulations” while the is commentary largely based includes on the codifi more ). The Shariʻa reg extensive explication with reference to domestic Shariʻa legal literature, introducedcomparisons certain of the noveltiesShariʻa legal into institutions the text of thewith compilation the Austrian itself civil which code, canon law, and the practice of the Shariʻa courts themselves. The author Sarajevo. This distinguished this work from its Egyptian model. were the result of the reforming activities of the Supreme Shariʻa Court in-

“The Interpreter of Shariʻa Regulations” was created as a result of know Slavicing both lands. Shariʻa Since and the general work was civil compiled law and representsduring the perioda belated of theattempt so-called at a systematic presentation of Shariʻa law in modern clothes in the southern

Independent State of Croatia, one does find in certain parts, alongside the thepresentation conclusion of that purely the ShariʻaIndependent regulations State of and Croatia provisions, was an interpretations Islamic state that involve the justification of fascist politics. For example, the author draws 42 - from the fact that Shariʻa courts existed under it which is absurd. - evitableIn the that absence similar of matters a single would comprehensive be ruled upon and generally in a variety valid of differentcodifica tion of material Shariʻa law that could be applied in Yugoslavia, it was in opinions. Different legal schools had very different opinions on individual ways. The Shariʻa justices referred to many legal works and collections of- ically during their training. Moreover, they had almost unlimited freedom whenquestions, choosing and the legal Shariʻa works justices and commentaries did not study on these legal problems regulations. systemat These circumstances even led an Islamic theologian of the traditionalist orienta-

tion to describe the conditions in the Shariʻa judiciary43 in Yugoslavia as Ibid., 91. such that “legalO jurisdikciji security šerijatskih is neither sudova offered, Tuzla, 1931,nor can2. it be.” 42 43136 A. L. Č�okić, Ch. IV / The Sources and Character of Shari’a Law in Yugoslavia

Yugoslavia between the two world wars, advocated the preparation of a law Hafiz A. Bušatlić, one of the most prominent Shariʻa legal experts in step with the spirit of the times, but also within the framework of the foun- on Muslim family and inheritancemadhab rights and for the use un-harmonised by the Shariʻa opinions courts “in of individuals, legal philosophers, and to include within it a similarly appro- priatedations and of Shariʻa, contemporary regardless approach of to these rights and all of it in our language.” 44 - ed to ensure This writerthat certain set out ofin athe few more words modern the need legal for theprovisions codification of the of Shariʻa family and inheritance law as follows: “it must be drafted and enact deliveringnon-Hanafists justice (the and other so that Islamic uniformity legal schools of procedure – op. F. wins K.) are out, enshrined but most ofin alllaw so for that us everyoneHanafists mayas well, be acquaintedso that we withmay hisstrive own after personal better rights results and in duties in relationships, and so that the state may keep a clean account of them.” The45 prominent Yugoslav legal expert B. Eisner was well acquainted - with the problems of the Shariʻa judiciary. He also advocated46 for the codification of Shariʻa family and inheritance law in Yugoslavia. Like Bušatlić, he explained the need for the codification in terms of the state’s right to over themselvessee the Shariʻa and courts so prevented as a branch them of theof being national deprived judiciary. of theirThis wouldown rights be in andthe interestlegal protections. of Muslims Finally, since they there often was were a need not to fully ensure aware uniformity of Shariʻa andlaw stability of judicial practice. Eisner thought this model could also facilitate

Despite the convincing nature of all these arguments, there simply in the codification of Shariʻa law in both Egypt and Turkey. - plied throughout the interwar Yugoslav state. This is the more surprising never was a single, comprehensive official codification of Shariʻa law ap - once one knows that both religious representatives and Shariʻa and civil legal experts were calling for such a codification. Why was no authorita implementationtive collection of ofShariʻa this form law everof law? issued It would in Serbo-Croatian appear we should when seekthis was the causethe best in aand general most hesitationefficient way in the for interwar the state Yugoslav to establish state control to regulate over the

Gajret Ibid. 44 A. Bušatlić, “Š�erijatski sudovi,” , 1928, 157. - 45 skog prava,” Arhiv, no. 3/1922 (vol. V/XXII), 235-236. 46 B. Eisner, “Nadležnost u porodičnim i nasljednim stvarima muslimana i primjena šeriat

137 Fikret Karčić / Shari'a courts in Yugoslavia 1918-1941

judiciaryapplication to ofthe Shariʻa Law on law the through organisation legislation. of the ShariʻaOne should courts bear and in Shariʻa mind justicesthat it took despite eight theyears legislative to get from side the being constitutional prepared guarantee very quickly. of a Shariʻa After- on the other it was about doing away with it altogether, particularly with awards, view thetowards talk on unifying one side the was civil about law thein Yugoslavia. need to codify One Shariʻa gets the law, impres while- - erning circles and for a large part of the Yugoslav legal establishment, a necessarysion that the compromise mandatory and implementation a political issue, of Shariʻa so that lawhow was, it was both dealt for withgov was always contingent upon the balance of forces at any given time (in this case, especially the position taken by the civil political representatives of the Muslims and by their religious representatives). For this reason, there was no commitment to longer term solutions when it came to applying Shariʻa law. Codification certainly falls within this set of tools. d) Circulars and orders of the supreme Shariʻa courts.

- itance, and endowment law, different means were required to introduce In the absence of any official Yugoslav codification of Shariʻa family, inher- tion of judicial practice. One solution was found in an institution that did material changes into Shariʻa law and to attain stability and harmonisa the Supreme Court to issue opinions of principle that would be binding fornot theoriginally lower instances. belong to the concept of Shariʻa law. This was authorising during the period of Austro-Hungarian rule in Bosnia and Herzegovina The introduction of a second instance into the Shariʻa judicial system instancehad given on the important supreme Shariʻamatters. courts These the circulars right to issue, had binding in agreement force with theregard government to the application and legislative of laws 47authorities, and decrees circulars and to procedure.to the courts The of Lawfirst on organising the Shariʻa courts and on Shariʻa justices does not explicitly

- temmention in Bosnia this rightand Herzegovina. of the supreme Shariʻa courts to issue circulars, but they continued to do so calling on the practice of the Shariʻa judicial sys- rial and procedural law. At this point, we are particularly interested in the The supreme Shariʻa courts’ circulars and orders covered both mate Šerijatsko-sudski postupnik s formularima, 8.

13847 A. Bušatlić, Ch. IV / The Sources and Character of Shari’a Law in Yugoslavia

- ern Slavic lands. Our study of the circulars and orders of the supreme significance of these acts for Shariʻa material law, as applied in the south collections of them: the Zbirka naredaba za šerijatske sudove u BiH 1878- 1900Shariʻa courts has been facilitated by the fact that there are two published and the Zbirka naredaba i okružnice za šerijatske sudove 1900-1944, edit- (Lithographic, withoutGlasnik editors’ VIS name, place, or date of publication) - ed by Abdulah Š�kaljić ( no. 8-9/1944, 165-172, no. 10-12/1944,- 186-203; no. 1-3/1945, 9-26). In regard to Shariʻa material law, the su preme Shariʻa courts’ circulars and orders contain binding interpreta tions of Shariʻa regulations and so, to a certain extent, both reform the Shariʻa law and harmonise the practice of the Shariʻa courts. On the The interpretations of the Shariʻa regulations given by the supreme48 CommunityShariʻa courts so were that bindingthe Supreme on the Religious Shariʻa courts Council of first issued instance. binding inter- other hand, the Shariʻa legal regulations also bound the Islamic In Religiousthis way 49 - pretationsder the circumstances of Shariʻa for for the the religious Supreme community’s Religious Council bodies. of the Islamic the remit for interpreting Shariʻa regulations was split. It was natural un-

Religious Community to interpret Shariʻa regulations that related primar ily to religious issues, narrowly understood, while the supreme Shariʻa courts could interpreted seek opinions the Shariʻa from regulationsthe Ulamâ Majlis that stressedor Council, legal or later aspects. the GrandThere was Muftî no, forsharp guidance line of differentiation,on certain issues. however.50 The The Supreme supreme Religious Shariʻa Council took positions in principle that affected the application and im- for example, the Grand Muftî conclusionplementation of Decemberof Shariʻa law 21, and 1938 were that binding mixed marriagesfor the Shariʻa between courts. Muslim Thus, men and non-Muslim women’s wereGrand forbidden Council took in principle the view, in in Yugoslavia. item 1 of its51

Under the classical interpretation and practice of Shariʻa, such marriages E.g. Alimony does not cover any medical expenditures on a sick former spouse nor is a SSCS ruling no. 1, 48 Mjesečnik, no. 2/1925, 85-86). The father is required to pay child sup- formerport in husbandcash, rather required than into kind,pay fordirectly his divorced to their spouse’sdivorced treatment and un-remarried – mother as theirdated care-giver May 12, 1924 – SSCS ( ruling no. 528, dated December 29, 1923 (Mjesečnik, no. 7/1925, 313-316). The Grand Muftî law. Art. 98 of the Constitution of the Islamic Religious Community, dated November 5, 49 1936. ’s Grand Council was responsible for settling contested matters of Shariʻa 50 Art. 15 of the Law on organization of the Shariʻa courts and on Shariʻa justices. 51 Glasnik VIS

, no. 2/1939, 54-55. 139 Fikret Karčić / Shari'a courts in Yugoslavia 1918-1941 courts. This overlapping of jurisdictions when it came to interpreting were allowed and had up until then been conducted in front of the Shariʻa that nonetheless also had very close ties to the religious community. Shariʻa law is indicative of the position of the Shariʻa courts as state bodies-

Reforms of particular Shariʻa legal regulations were gingerly ap theproached thinking by of the other supreme Muslim Shariʻa legal schools courts and legal represented experts. aIn departurethe study from the thinking of the official legaltakhayyur school of the (selection) former Ottoman and was Empire widely used in other parts of the Islamic world at the time.52 of ShariʻaGiven law, the thisatmosphere method isof calledtraditionalism that was characteristic of religious, cultural, social life for most of the Muslim population in interwar approached by appealing to the practice of Muslim countries. Yugoslavia,Initially, even and upthe to methods the dissolution of reform of the allowed Caliphate by Shariʻa law were only âs of the Supreme Reli- gious Council of all Muslims (the Mashîkha) as published in in Turkey the Jarîda in 1924, ‘Ilmiyya the SupremeGazette when Shariʻa implementing Court in Sarajevo a reform. appealed For example, to fatw the interpretation that it was permissible to declare individuals who had gone missing on the battle- infield the after view an of engagement many respected with thelegal enemy experts, deceased only been on the possible basis of to witness declare by a comrades was accepted in circular no. 267 of July 4, 1917. Prior to this, it had, the day of disappearance. It should be clear how much easier and fairer the newmissing solution person made dead dealing after the with passage the question of 30, 60, of 70, inheritance 80, or even and 90 the years mainte from- nance of women and children after the end of the First World War.53 Referring to a decision of the Mashîkha - , the Supreme Shariʻa Court in opinionSarajevo ofinstructed Hanafî all Shariʻa justices in Bosnia and Herzegovina in circu whichlar no. allowed327 of Septemberwomen the 27,right 1923 to seek that a in judicial future dissolution they should of applymarriage the as a result of the onsetImam of Muhammad madness or ibn contagious Hasan al-Shaybanî� skin diseases (749–805), in their husbands. Under the previously valid opinion of the leading legal expert 54 a right to request judicial dissolution of the marriage on account of any defectAbū Hanî�fa in the (d. other 767) spouse and his except pupil forAbū sexual Yūsuf dysfunction. (d. 798), neither spouse had

52 A History of Islamic Law, 185ff. 53 Glasnik VIS GlasnikSee further VIS N. J. Coulson, , no. 10-12/1944, 191-192. 54 , no. 1-3/1945, 16-18.

140 Ch. IV / The Sources and Character of Shari’a Law in Yugoslavia

Again referring to a decision of the Mashîkha

, in circular no. 234 of- January 27, 1917 the Supreme Shariʻa Court in Sarajevo instructed all marriageShariʻa courts where in theBosnia husband and Herzegovin was absent to(gâ’ib follow) for the more opinion than of12 the months Han andbalî� legalpayment school of whichmaintenance recognised could women’s not be collectedright to judicial from his dissolution property. of55 Under the previously held Hanafî view, women did not have this right. After the end of the Caliphate in Turkey (and therefore in the absence

Givenof authoritative that these fatwasattempts of atthe reform Mešihat), did werethe supreme not always Shariʻa met withcourts approv made- use of examples of reform of the Shariʻa law in Egypt, Tunisia, and Algiers. traditionalist Muslim environment of Yugoslavia actually lagged behind reformsal in their in countriesthese Arab of countries. origin, however,56 the reform of Shariʻa law in the The main mechanisms of reform continued to be judicial practice and the circulars and orders of the supreme Shariʻa courts. In circular no. 97 of- January 1, 1930, the Supreme Shariʻa Court in Skopje accepted the opinion that women had a right to divorce in cases of their husband’s poverty. Polyg secondamy was wife limited and tothe cases husband where had the to first prove wife his was ability either to sickmaintain or sterile, and treatwith the further condition that the first wife had to consent to the taking of a- both wives equally. These views were expressed in the Skopje Shariʻa Su preme Court’s decisions no. 1141 of November 5, 1932, no. 326 of March57 31, 1933, no. 192 of March 1, 1933, and no. 874 of November 17, 1932. haveBy been their the very most nature, suitable the means circulars for andthis, orders during of the the period supreme when Shariʻa they werecourts discussing had a unifying or even effect attempting on judicial topractice. create Whilea legal codification compendium would of an expression of the situation on the ground and what was realistic. Al- thoughShariʻa limitedregulations, in their the subject circulars matter, of the they supreme did contribute Shariʻa courts to uniformity served asin judicial rulings, particularly in cases where the classical works of Shariʻa- legalvia in science the context had noof theconcrete wider or reform final solutionsprocess unfolding to offer. at the time in the If one views the attempts at modernisation of Shariʻa law in Yugosla

55 Glasnik VIS 56 Arhiv, no. 6/1935, (vol. XXXI/XLVIII),, no. 560. 10-12/1944, 186-188. Ibid.M. Begović, “O reformama porodičnog prava muslimana u Egiptu,”

141 Fikret Karčić / Shari'a courts in Yugoslavia 1918-1941

Muslim world, one may conclude that the reform methods in Yugoslavia had similarities to the practice of the Shariʻa courts in Sudan. Unlike other European countries, where modernisation of the Shariʻa law was pursued through state legislation and codification, in the Sudan it was realised traditionalthrough circulars Hanafî of the chief Shariʻa justice.58 Most of the circulars were issuedWhile between it is obvious 1916 and that 1935 there and was they no connection contained betweenmodifications the practice of the interpretation of Shariʻa. - - ofpendently the Shariʻa to courtssimilar in problems. the Sudan It and is moreover those in Yugoslavia, certainly relevant this fact thatis none the theless significant as it indicates how similar answers can appear inde conditions of the conceptual encroachment of Western legal thought. Shariʻa law was being applied in both the Sudan and in Yugoslavia under

2. The Sources of Shariʻa Procedural Law sourcesThe regulations of different for types:the procedural the works law of the applied classical by Muslimthe Shariʻa legal courts experts, in Yugoslavia were not qualified. Here too they drew their legal norms from procedural law in Bosnia and Herzegovina, as received through the laws Ottoman reforming legislation and its codification of Shariʻa law, Austrian - and decrees issued by the government authorities for the Shariʻa courts and the circulars of the supreme Shariʻa courts. Two works written in Ser bo-Croatian had a particular practical significance for Shariʻa judicial practice. Their authors were Franjo Kruszelnicki and the hafiz A. Bušatlić. ultimatelyDuring the withoutlifetime success.of the 1918-1941 Yugoslav state, a number of different attempts were made to draft a codification of Shariʻa procedural law, but

a) The works of the classical Muslim legal experts

In the classical works of the Muslim legal experts, procedural law is gen- its jurisdiction, and court cases together with the norms of civil, criminal, erally set out together with material law. We find regulations on the court,

58 The Muslim World League Journal (Mecca), December, 1983, 25. Tenzilur Rahman, “Application of Shariʻa in the Muslim World,”

142 Ch. IV / The Sources and Character of Shari’a Law in Yugoslavia and personal law.59 norms. Here we have Thus in mind the suchcompendia legal works of Shariʻa as the material Multaqâ law, the thatDamad the, DurrShariʻa al-mukhtâ courts inr, Al-ashbâh Yugoslavia wa used al-nazâ’ir also served, or the as collections sources ofof procedurallegal opinions known as the Al-Fatâwâ al-Hâmidiyya, Fatâwâ ‘Abdurrahîm, Al- Fatâwâ al-Hindiyya, etc. which are almost entirely devoted to the judiciary and procedure. One of theseIt works is worth that noting is well-regarded that the Shariʻa in our legal region literature of study does was contain the compen works- dium Muʻîn al-hukkâm - qâdî, the conditions a person (The judges’ must meetassistant) to exercise written the by function, the Hanafî� proce lawyer ‘Allauddî�n al-Tarablūsi (d. 884/1479). It has chapters on the role of the

60 dure, suits and their classification, evidence, punishments, etc. A. Bušatlić refers to this work in his book on Shariʻa judicial procedure. responsibleThe Shariʻa under courts government in Yugoslavia regulations. could make use of the classical Shariʻa works on procedure when dealing with issues for which they were

b) Ottoman reforming legislation and its codification of Shariʻa law

jurisdictionThe Shariʻa overcourts certain kept totypes the ofprocedural probate hearing norms setwas out settled in the under Ottoman arti- clereforming 23 of the laws law when of the dealing 16th with many issues. The Shariʻa courts’ local the Austro-Hungarian authorities gave their sanction immediately after occupation.61 The procedure of to Safar, be applied 1276 (September in handing 15,over 1859) miri propertyto which th of Ramadâ th 62 In proceedings related to the property of mi- tonors the in heirs wardship, was set the out relevant in the lawsregulations of the 7 were those ofn, the 1274, decision and the of the17 16 ofth Muharram, 1284. 63 - igation procedure of Dhu al-qaʻda, are given 1286, in theand Majalla so on. . This is particularly true for the The general approach and, to a large degree, the details of Shariʻa lit 59 âd Muhammad, Buhūth fî al-shariʻa al-islâmiyya wa al-qânūn (Stud-

60 MuhammadŠerijatsko-sudski ‘Abd al-Jaw postupnik s formularima 61 ies in Shariʻa and general civil law), Alexandria, 1977, 148.Sammlung 62 A. Bušatlić, , Sarajevo, 1927, 39. 63 Ibid.,“Gesetz 99. über den Wirkungskreis der Scheriatsgerichte,” , II, 476-481. A. Bušatlić, op. cit., 92-95.

143 Fikret Karčić / Shari'a courts in Yugoslavia 1918-1941

Thesegeneral procedural principles institutionsof Shariʻa litigation, and actions capacity were togoverned litigate andby the the regula representation of parties, suits, and procedurethe before Majalla the. courtThese of are: first Book instance. XII – tions contained in the last five books of on settlement (articles 1531 – 1571), Book XIII – on recognising the rights and requests of others (articles 1572 – 1612), Book XIV – on suits (article 1613While – 1675), the applicationBook XV – onof the evidence Majalla and oaths (articles 1676 –64 1783), and Book XVI – on judges and judgements (articles 1784 – 1851). in proceedings before the Shariʻa Februarycourts was 6, not 1919, supported the court by explicitlyany explicit stated, official while regulations, calling a theparty views to at of- the Sarajevo Supreme Shariʻa Court on it were clear. In circular no.the 70 Ma of- jalla 65 In another case, tend a civil suit or proceeding, “that the procedures contained in are valid for cases heard before the Shariʻa courts.” 16,the 1928,Sarajevo instructed Supreme that Shariʻa they were Court, to keepwhile to drawing the Majalla the andattention the Taʻlîmât of the, whichregional were court attached. to the many66 In cases lapses where in procedure the provisions in circular of the no. Majalla 228 of were June

In presenting the Majalla as a source of procedural norms for the not sufficient, Ottoman litigation procedure was also used. -

1929Shariʻa that courts, the onedisciplinary should point courts out of the the provision Islamic Religiousin the Disciplinary Community Rule in thosebook forareas Jamâʻa were imams to investigate on the territory and rule ofon Serbia the guilt and of southern imams in Serbiaaccordance from with the rules contained in books XIV, XV, and XVI of the Majalla. Unlike the Law on the organisation of the Shariʻa courts and the Shariʻa67 justices, onewhich of hasthe fewnothing regulatory to say abouttexts ofthe the source interwar of procedural Yugoslav statenorms that for deals Shariʻa at courts, the sub-legal regulations on the responsibility of religious officials is all with the procedural law applied by the muftî�s or Shariʻa justices. c) The reception of Austrian procedural law

With the establishment in Bosnia and Herzegovina, during the period of Aus-

Majalla al-ahkâm al-sharʻiyya, II. 65tro-Hungarian Glasnik VIS rule, of a two-tier Shariʻa court system, the issue arose as to the 6664 Glasnik VIS Službene novine, no. 10-12/1944,, no. 59-XXIV, 202-203.dated March 12, 1929. , no. 1-3/1945, 24-26. 67

144 Ch. IV / The Sources and Character of Shari’a Law in Yugoslavia procedural norms for regulating proceedings in front of the second-tier the Majalla only rec-

Shariʻa1838, 1839), courts, its as provisions well as of legalcould remedies, at best serve et cetera. as a jumping-off As point for the constructionognises “the reviewof an appeals of a suit process. after judgement”A way out was by foundthe same by takingjudge over(articles the institutions and arrangements of the procedural law applied in the regular civil courts. The Provincial Government for Bosnia and Herzegovina ordered,

under document no. 54 916/III of September 24, 188768 This that is the how institutes the broad of the Civil Code of Procedure (GPP) for Bosnia and Herzegovina from 1883 “be- employed by analogy in the Shariʻa courts as well.” - zegovinareception and of Austrian later across procedural the rest lawof Yugoslavia. began. It was to have a significant im pact Theon forming Provincial the Government,procedure used the at Supreme the Shariʻa Court courts for Bosniain Bosnia and and Herze Her- - 69 govinaIn addition and tothe bringing Supreme order Shariʻa to second-tier Court in Sarajevo procedures issued and a numberlegal resources, of spe cialthese laws special and ordersorders to and modernise analogous and application round out of Shariʻa the GPP judicial also helped procedure. shape non-litigious procedures, in particular probate. The clerical tasks of the 70

Shariʻa courts and the form and style of the Shariʻa judicial documents very traditionalclosely reflect judicial the approach procedures. of the Introducing Austrian judicial Austrian system. institutions and prac- The Shariʻa legal experts were not generally against modification of the The process as it took place in the southern Slavic lands was not an isolated tices into the Shariʻa court system brought order and increased efficiency. systemcase in of the precedents modern historyand other of institutions Shariʻa law. fromThe English procedures law. In of the the lands Shariʻa of courts on the Indian subcontinent were modified by the introduction of a of French procedural law. the Maghreb, Shariʻa court71 procedure was modernised under the influence Noel J. Coulson, professor of Oriental law at the 68 Zbirka naredaba za šer. Sudove u BiH 1878-1900, 51. 69 order no. 561 šer. dated September 6, 1895, on issuing court orders, etc. Zbirka naredaba zaSee šer. further Sudove Provincial u BiH 1878-1900 Government order no. 3075, dated July 3, 1880 on interpreters; SSCS the Provincial Government and the Ulamâ - . The Supreme Shariʻa Court in Sarajevo, in agreement with Medžlis, set out in circular no. 101, dated Febru- ary 20, 1919, the “Procedure for weddings and divorces. ” The purpose of this documentGlasnik was to ensure “correct and homogeneous procedure in such matters.” This circular there fore representsŠerijatsko-sudski a major step postupnik in standardising procedure at the Shariʻa courts. See no. 1-3/1945,A 9-12. History of Islamic Law, 163-181. 70 A. Bušatlić, , 77. 71 N. J. Coulson,

145 Fikret Karčić / Shari'a courts in Yugoslavia 1918-1941

London School of Oriental and African studies, has drawn attention to a circumstance that conceals within itself the explanation for this phenomenon. He says that, in contrast to what is the case with most legal systems, the material-legal regulations in Islamic law are not inseparably bound up with the structures and procedures of the courts applying them. Because of the peculiar circumstances under which it emerged and developed (religious sources and the interpretation of religious scholars), Islamic law has become practically independent of the mechanisms by which it is applied. - cedures could be an entirely separate issue from the nature and content of theThis law is how being the applied. modern reorganisationThis also helps of explain the Shariʻa the phenomenon courts and their that pro the 72 part using the methods of Islamic legal science, as one would otherwise reforms of Shariʻa material law in Yugoslavia were carried out for the most- have lost the Islamic character of the law, but that the modifications to pro cedure involved a significant degree of reception of foreign (Austrian) law. d) The attempt to codify Shariʻa procedural law

Attempts were made to codify the existing legal situation in the interwar Yugoslav state, building upon the degree of modernisation of procedure

The basic principles of procedural law were already given in the Law onalready organising achieved the in Shariʻa the Shariʻa courts courts. and on Shariʻa justices. The principle of public proceedings (article 8) was stipulated, as were the right to appeal against the decisions of the first instance courts to the Supreme Shariʻa- Court (article 14), which, however, dealt with appeals in closed session (article 15). This law authorised the Minister of Justice to stipulate de tailed regulations on the order of work at the district and supreme Shariʻa- lamiccourts Religious in a rulebook. Community, Article 27and contained the civil thisrepresentatives authorisation of andthe wasMuslim the legal basis for later attempts by the Shariʻa justices, the bodies of the Is- opted. Even though the Law on organising the Shariʻa courts and on Shariʻa justicespopulation gave to a have fairly a lowso-called place Procedural in the hierarchy Handbook of legal for acts Shariʻa to this courts collec ad- tion of regulations (a rulebook issued by the Minister of Justice), it was accorded much greater significance in public and was talked about as a codification of procedural law. 72 Ibid. 164.

146 Ch. IV / The Sources and Character of Shari’a Law in Yugoslavia

- He claimed that Abdulah Š�kaljić provided more information on the73 Procedural Hand book in a paper on the Association of Shariʻa Justices. the Justice Minister had already received a draft of the Handbook in 1929, atbut an that assembly he delayed held giving on October it his authorisation. 20, 1932 about The the Association need to adoptof Shariʻa the Handbook.Justices became During particularly both 1932 engaged and 1935, on this representations issue. It passed were a resolution made to courts came out in favour of the Draft Handbook, while Fehim-efendi Spa- ho,the a Ministry deputy to of the Justice Supreme with Islamic the same Council requests. also called Both supremefor its enshrine Shariʻa- andment there in law were in 1936.interventions From then and through promises 1940, by the a series authorities of delegations that redac of- tionthe Association of the Handbook of Shariʻa would Justices soon passed come tothrough an end the and Ministry that it ofwould justice, be enacted. However, after the interwar Yugoslav state, it never happened. Unlike the Yugoslav legal authors, who never offered up even a single

academic text to the attempt to codify Shariʻa The procedural article was law, written G. H. Bousquet dedicated an article to it under the title74 of “new views on certain reforms made in the Shariʻa law in Yugoslavia.” changeon the basis the rulesof information of procedure provided in the to narrow the author sense, by M.but Begović. also the Bousquet rules of stated that the Draft Handbook for the Shariʻa courts would not only- forms envisaged by the Draft Handbook were: Shariʻa material law, particularly those related to marriage. The main re institution. The Majalla envisaged issuing a new summons to the par- 1. tyJudgements being sued in andabsentia. the nomination Traditional ofShariʻa a court-appointed law did not recognise advocate this in

the Draft Handbook, it accepted a procedure in absentia from the the case of continued lack of response (article 1834). In article 240 of

2. Thegeneral delegation legal code, of inheritance with the explanation: disputes to “the the regularjustice must civil courts.investigate The the case and decide at the first hearing.” - ing inheritance, but the Draft Handbook envisaged under article 39 Shariʻathe possibility courts hadthat exclusivethe appeals jurisdiction court could, in dealingon the basiswith ofand a requestallocat El-Hidaje (Sarajevo), no.

73 A. Š�kaljić, “Osvrt na rad staleške organizacije šeriatskih sudaca,” - man10-11/1943, en Yougoslavie 315-316. (1),” Revue Algérienne, Tunisienne, et Marocaine de legislation et de 74 jurisprudenceG. H. Bousquet, “Nouvelles observations sur quelques réformes apportées au droit Musul

(Paris), vol. XLVIII (1932), 202-204.

147 Fikret Karčić / Shari'a courts in Yugoslavia 1918-1941

by one of the heirs, transfer the settlement and division of inheritance by Muslims to the regular civil courts, which would, in this case, make

3. Setting out the procedure for placing under wardship. Article 351 of theits ruling Draft inHandbook the presence lists theof at persons least one who Shariʻa have justice. a right to initiate the procedure for placing a given individual under guardianship. The novelty this article introduces lies in the list including the natural father and the natural children, on condition that they live together. As is well-known, in the case of children born outside of wedlock, the

father; it only a relationship with the mother. Shariʻa law does not recognise their relationship with their natural husband. Even though a unilateral statement by the husband dissolv- 4. Changesing the marriage to the practice already of had unilateral to be made dissolution in front of amarriage qâdî and by regis the-

statementtered for ithad to the count status in theof a normal Shariʻa petition courts of for Yugoslavia, divorce and the that Draft the justiceHandbook should went hear even the further.case at aArticle regular 379 hearing stipulated and determine that any as such he

Overall,finds G. best. H. Bousquet concluded, on the basis of his analysis of the Draft thanHandbook the introduction for Shariʻa of courts, the Swiss that civil these code novelties had in Turkey. introduced into the ShariʻaWe court were systemnot able in to Yugoslavia examine a offered copy of a the considerably text of the betterDraft Handbook approach

Court”during thatour research.was drafted We at did, the however, time of thefind so-called a copy of Independent the “Regulations State onof the order of work at the district Shariʻa courts and the Supreme Shariʻa the library of the Supreme Islamic Council in Sarajevo and in the Gazi Huz- Croatia. It was intended for implementation beginning in January 1945 in- - ref-bey Library under call number 3495. A number of circumstances suggest that this may be the Procedural The Handbook second variant or “Rulebook was altered for operato suit tionsthe norms at the and district linguistic Shariʻa policy and of supreme75 the so-called Shariʻa Independent courts” that State was of men Cro- tioned by Hafiz Abdulah Bušatlić. atia. The attempt to enact these “Regulations” and the compilation of Šerijatski sudski postupak u porodičnim, nasljednim, i vakufskim stvarima Shariʻamuslimana material, second law revised by H. and Muradbegović expanded edition, was in manuscript, an integral Sarajevo, part 1933. of the VIS efforts Library. 75 A. Bušatlić,

148 Ch. IV / The Sources and Character of Shari’a Law in Yugoslavia to change the legislative basis of the Islamic Religious Community during

- sideredthe course the of Ustaša the war state of national a legal framework liberation from for settling 1941 to the 1945. status The of main the Islamicproponents Religious of this Community.” were the same religious and political circles who “con -

“The Regulations” can be used as a basis for reconstructing the Rule suggest,book for thatoperations leading of Yugoslav the district legal Shariʻa experts and (B. supreme Eisner and Shariʻa others) courts. were The to Rulebook was to have contained around 400 articles and, certain data system. Both in terms of content and scope, it transcends the character of abe mere involved Rulebook in compiling and really it, along represents with representatives a law on judicial of procedurethe Shariʻa atcourt the of work (articles 1-105), the second section on litigation and nonlitigious proceedingsShariʻa courts. (articles The first 106-369), section treats the third of the part Shariʻa on the courts keeping and of their the regisorder- ter and the conduct of court clerical work (articles hundred and 70-397), the fourthThe Draft section Rulebook on the representedarchiving of filesa summary (articles of 397-401), the modernisation and the fifth of section on transitional and final provisions (articles 403-406). - garian occupation in Bosnia and Herzegovina and completed during the Shariʻa judicial procedures began during the first years of the Austro-Hun procedure had been changed so that it would then have been more cor- final years of the interwar Yugoslav state. The traditional Shariʻa judicial- sical procedural institutions were undoubtedly retained, as witnessed by explicitrect to speak references of procedure to the Majallain front of the Shariʻa courts. Many (article of the 369). clas

(article 140), and the theHowever, system Austrian of evidence, procedural with itslaw introduction is what now of gave the thefree basic assessment flavour toof proceedings, as is clear from the overall flow of courtroom proceedings, of legal resources, and the introduction of the institutions of recess and evidence, in place of the earlier formal theories (article 174), the system provisionsthe suspension of the of GPPproceedings. will be applied, Article 403so long explicitly as they stipulated are not contrary that where to there are no specific provisions governing a particular question, then the the provisions of Shariʻa law.

149 Fikret Karčić / Shari'a courts in Yugoslavia 1918-1941

e) The works of the Yugoslav Shariʻa legal experts

- slavSince state no official met its compendium end, there was of a regulations need for a Handbook governing that the wouldprocedures contain of athe review Shariʻa of thecourts procedural had been norms put together to be found by thein the time sources the interwar of the various Yugo - different types and origins. This role was filled, in the spiritHandbook of the tradi of Shariʻational Shariʻa Judicial law Procedure by a work with by Formulariesone of the most(239 learnedpages). ofThe Yugoslavia’s work was Shariʻa legal experts, A. Bušatlić. He printed a samizdat this consideration largely determined how the material was presented. composed primarily for the needs of the Shariʻa justices in Yugoslavia, and courts, their jurisdiction, litigious and nonlitigious proceedings, and cler- icalThere tasks. are A five number sections of forms treating for the in different turn the types organisation of document of the issued Shariʻa by the earlier work by F. Kruszelnicki, who had written Procedure at the Shariʻa courts inare Bosnia appended. and Herzegovina In his approach, the author follows closely- Academ- (Zagreb, 1917, 79 pages)76 in co operation with the Shariʻa Chief Justice Salih-effendi Mutapčić. courts.ics generally gave Bušatlić’s work high marks pointing out its significance in acquainting77 the Yugoslav public with the procedural law of the Shariʻa Another expert in Shariʻa law, Abdulah Š�kaljić, called the work “a roadmap for the Shariʻa justices and a major aid78 to lawyers and clients alike,”uniformity the most in judicial used book practice at the prompted Shariʻa courts.leading Yugoslav legal experts to The lack of a codification of Shariʻa procedural law and the lack of- fessor at the Belgrade legal faculty, S. Culja, was of the view that the incon- sistentmake very procedural critical statementsprovisions regardingin the Law the on Shariʻa organisation court system. of the ShariʻaA pro courts and on Shariʻa justice meant that the level of legal certainty in courts are ruling on the highest goods.” Shariʻa judgements “could not be particularly79 high, even though these seen that proceedings at these courts were regulated by a variety of regu- lationsIn ourin additionpresentation to the of theLaw sources on organising of Shariʻa the procedural Shariʻa courts law, we and have on

Printed as an supplement to Mjesečnik no. 11 and 12 from 1916, and, nos. 1, 2, and 3 from

76 See the review of this work by B. Eisner in Mjesečnik 1917. Glasnik VIS 77 S. Culja, Građanski parnični postupak no. 8-9/1928, 443-444. 78 A. Š�kaljić, “Zbirka naredaba i okružnica,” , no. 8-9/1944, 166. 79150 , I, 167. Ch. IV / The Sources and Character of Shari’a Law in Yugoslavia

Shariʻa justices. Multiple efforts to bring legal order to these proceedings failed largely because of the position taken by the responsible government bodies, most probably for the same reasons that codification of Shariʻa material law did not succeed either.

3. The Place of Shariʻa in the Legal System of the Yugoslav State from 1918 to 1941 - goslav state has to be considered from both normative legal and sociolog- The issue of the presence of Shariʻa law within the legal system of the Yu law provisions in legally determined areas of legal life had state sanction. Thereical perspectives. were state courts From thethere normative to apply legalthem, perspective, which meant certain these Shariʻaprovi- state.80 sionssystems of Shariʻadid not law affect had this become in any a part way. of It the is legalreligious system in itsof thesources Yugoslav and principle The of factapplication, that Shariʻa but lawit is belongssecular into terms the category of the areas of religious it regulates. legal personal status, marriage, family, inheritance, and endowments and trust- Given that the Shariʻa regulations in interwar Yugoslavia governed the formed a part of Yugoslav civil law. To put it more precisely, we are dealing funds of Muslims, it is fair to say that the relevant Shariʻa regulations law.here81 with a particular civil law, because it applied only to a specific circle of people. This is the view argued by D. Tomac of the Zagreb faculty of receiving government sanction and validity pro foro civili become part of the materialAs the claim law of is the that Yugoslav certain state, Shariʻa we lawmust provisions consider the had question by virtue as toof containedwhether the institutions Shariʻa regulations which were had contrary unlimited to validitythe prevailing in certain legal legally and moraldetermined views spheresof Yugoslav of life. society. It is, Thisfor example, discrepancy well was known due that to the Shariʻa presence law of different cultural bases for these legal and moral views (Islam and Christianity).

80 The Catholic writer Ivan Pavlinac took this view, on the grounds that by recognising the -

Vrhbosnajurisdiction of Shariʻa courts over Muslims, the Yugoslav state had sanctioned Shariʻa regu 81 D.lations Tomac, as Ustavits own i bračno law for pravo its ,Muslim 160-161. citizens. See I. Pavlinac, “Š�erijatski bračni propisi,” (Sarajevo), no. 5/1940, 199. 151 Fikret Karčić / Shari'a courts in Yugoslavia 1918-1941

Neither the constitution nor the law placed any form of material limita- divided in legal theory on this question. D. Tomac took the view that any reli- tion to the application of Shariʻa regulations in the given spheres. Opinion was- nied the full enjoyment of their civil and political rights because of their religious regulations because of which an individual might find themselves de 28, 1921, article 22 of which declared that the enjoyment of civil and political rightsgious affiliationwas independent should be of considered religious confession. abrogated bySince the the Constitution so-called privateof June rights of the citizen fall under civil rights (contracting private legal contracts,

- lowedmarriage, the et vacation cetera), then,of marital under responsibilitiesD. Tomac’s interpretation, for religious the reasons. St. Vitus’ ThisDay wouldConstitution include would the following have abrogated institutions: any irtidâd regulations – apostasy of Shariʻa from Islam law that of one al of the marital spouses, which ipso iure entails the dissolution of the marriage, ila’ – the hus- thefor whichmarriage the isShariʻa considered justice dissolved,issues a declarative etc.).82 In short,confirmation; Tomac, starting from band’s covenanting that he will not have relations with his wife, after which the position that Shariʻa law is civil law, took the view that the state legislature regulationshad the authority should tobe determine altered or replacedto what degreeby new stateones. 83Shariʻa courts should applyOn the the inherited other hand, regulations in a religious of Shariʻa survey law and conducted so to what in extentBelgrade these in 1921, the Muslim representatives called for the unhindered application of have included civil law sanctions for quitting Islam (dissolution of the maritalShariʻa regulationsrelationship, in loss the of legally the right determined to inherit, spheres being stripped of life. This of parental would and guardianship authorities over minors), a legal ban on Muslim women marrying non-Muslim men, a stipulation that the children of Muslim marriages must be Muslims and that they remain such even if their parents leave Islam, that no one can adopt a Muslim infant, because Islamic law does not recognise adoption, etc. It was obvious that most of these84 requests were unacceptable to the Yugoslav authorities because they clearly went against the constitutional provisions on freedom of religion. Moreover, on the neuralgic territory of interfaith relations in interwar Yugoslavia, whenever particular religious communities demanded unlimited application of their own religious regulations it produced absolute legal chaos.

82 83 Ibid., 163. RadeIbid., 72,Kušej, 85. Verska anketa u Beogradu 1921, Ljubljana 1922, 28-29.

84152 Ch. IV / The Sources and Character of Shari’a Law in Yugoslavia

- tionsThe that Shariʻa were legal judicial expressions system andof Islamic its most teachings, important as the representatives religious mo- took a compromise position on this issue. They applied the Shariʻa regula the same time they did try to bring the application of these regulations intoment line could with hardly the principles be expelled of modernfrom Shariʻa civil lawlegislation. and its 85application, but at For example, only a limited number of polygamous marriages were criminal law of 1930 declared that entering into a new marriage where therecontracted was already at the Shariʻa an existing courts. one Articles was a criminal 290, 291, act. and A 399problem of the now Yugoslav arose in both legal theory and practice: did these provisions of the criminal law awayapply withequally bigamy to Muslims? and polygamy Lazo Urošević, for Yugoslav a judge citizens on the ofCourt the ofIslamic Cassation reli- affirmed in his commentary on the criminal law that it had tacitly done the opposite – that it was not a criminal act for Muslims to enter into a gion.new marriage Toma Ž�ivanović, in addition a member to an existing of the committee one. According to draft to the law,provision claimed of article 23 of the criminal law, it was not a criminal act when the provisions of public or private law excluded the illegality of an act.86 The provisions priority over the provisions of the general private law. of Shariʻa,One further as a particular case illustrates form of the private position law of valid the mostfor Muslims, important here repre had- - sentatives of the Shariʻa judiciary and of Shariʻa academics to the applica Muslimtion of Shariʻaman and law. a woman In practice, who has the converted question nowto Islam arose but as was to also whether still in a Shariʻa court had jurisdiction over the registration of a marriage between a a non-Muslim woman converts to Islam and calls on her non-Muslim hus- a previous marriage to a non-Muslim. Under pure Shariʻa regulations, where- clare a dissolution of the existing non-Muslim marriage, at the request of theband one, to doand the may same, register but hea new refuses, Islamic the marriage Shariʻa court with isan authorised individual toof thede - gan to apply these regulations with the full support of certain bodies of the Islamic faith,Religious chosen Community by the woman. (the Ulam Someâ Shariʻa courts in Yugoslavia be

Majlis in Sarajevo). Most Shariʻa

85courts recusedIslamsko themselves pravo u inBiH such, 123. cases. A. Bušatlić explained this position, 86 Gajret, E. Sladović, See further A. Bušatlić, “Pitanje kažnjivostiArhiv ili nekažnjivosti u sklapanju braka,” 1930, 268; D. N. Stanković, “Da li propis čl. 290 Kriv. zak. ukida bigamiju i poligamiju naših građana muslimanke veroispovesti,” no. 4/1932 (vol. XXIV/XLI), 224-226. 153 Fikret Karčić / Shari'a courts in Yugoslavia 1918-1941

- zens, particularly in a state in which there are members of different confessions,saying like “it isour more state, important than to allow to maintain particular religious individuals toleration to create between religious citi antagonism within the state with conversions from one faith to another, particularly in order to dissolve marriages and contract new ones, and so create religious hatred.” 87 the Yugoslav state from the sociological perspective, we must pay some atten- If we are to consider the place of Shariʻa law within the legal system of behaviour and consciousness of a given section of Yugoslav society. For the tion to the degree to which this law’s norms were actually present within the their faith, and its application was a sign of their freedom to practice their Is- Muslim population in interwar Yugoslavia, Shariʻa was an integral part of setlamic out religion. in works While of Islamic a significant legal science number written of Muslims in Arabic were or Ottoman not in a Turkish,position itto wasacquaint at least themselves somewhat directly accessible with throughthe contents religious of the education, Shariʻa regulations tradition, ironicallyand customs. that Moreover, in Bosnia the and Muslim Herzegovina population they sometimes would request held firmera fatwa to onits whetherown customs it was than permissible to the explicit to have norms schools of Shariʻa for Muslim law. One girls, author but not pointed on wheth out- er coffee houses could serve alcohol or not.88 Under Islamic teachings, the education of both male and female children is an obligation (fard), while the consumption of alcoholic drinks is strongly forbidden (harâm). the many institutions that have become customary for even the non-Mus- lim population.The real presence89 of Shariʻa law in Yugoslav society is testified to by been taken over into the civil law codes of the Yugoslav Peoples (Serbian For some of these customs, certain Shariʻa legal institutions90 have civil law (SGZ) and General civil law of Montenegro (OIZ)). Mjesečnik, no.

8887 AdemA. Bušatlić, Bise, “NeštoDa li može o nadležnosti musliman za živjeti sklapanje evropskim brakova kulturnim pomuslimanjenih životom i ostatilica,” dobar musliman-Kur’an1/1923, 24. u teoriji i praksi 89 Godišnjak Pravnog fakulteta u Sarajevu , Tuzla, 1937, 8. 90 M. Begović, “Uticaj šerijatskog prava na jugoslovenske pravne običaje,” , 1974, 375-380. - See further M. Begović, “Sličnosti između MedželeArhiv I Opšteg imovinskog zakonika za Crnu Goru,” POF, V (1955), 33-42. Konstantin H. Terzijev, “O zalozi (tragovi) turskog zakonodavstva u Srpskom građanskom zakoniku,” , no. 1-2/1932 (vol. XXV/XLII), 9, 750-59; idem, “Š�efiluk (preče pravo kupovine) – tragovi turskog zakonodavstva u Srpskom građans kom zakoniku,” Arhiv, 1930 (vol. XXI/XXXVIII), 89-100; Idem, “Prodaja iz čl. 669 Srpskog građanskog zakonika (tragovi turskog zakonodavstva u Srpskom građanskom zakoniku,” Arhiv, no. 1/1931 (vol. XXII/XXXIX), 34-39.

154 Ch. IV / The Sources and Character of Shari’a Law in Yugoslavia

- toms of the non-Muslim population generally relate to relations based It is interesting that the Shariʻa legal institutions retained in the cus characteristic during most of the period of Ottoman rule in the southern Slavicupon barterlands. or insufficiently monetised forms of exchange, such as were One such case is agreement on compensation of livestock (kesim),

- whereby the shepherd is responsible for any losses to the flock, even 309-319),those due toand chance watering (SGZ, rights articles (haqq 693-699, al-shafa’ OIZ,) and articles irrigation 322-327), rights the (haqq giv al-shurbing of land), all out of to which rent, wherehave, alongthe rent with is paidother as institutions part of the yieldregarding (OIZ, art.the use of water, been taken over into Montenegrin customary law, along with the relevant Arabic and Turkish terms. - ority of purchase (haqq al-shuf’a preferentialAlso derived sale ( fromal-bay’ Shariʻa bi shart law al-khiyâr are the understanding), where the vendor of the sellsright a to mov pri- able item to the purchaser, who )contracts referred eitherto in articles to pay 670-676for the purchase of the SGZ, in instalments before the end of an agreed period of time or in a single pay-

669), a particular form of bequest (amâna) with heightened terms of re- sponsibilityment, under forthreat the ofrecipient/custodian, reversion to the earlier whose state meaning of affairs has (SGZ, been article pre- served, along with the Arabic term, in the legislation (SGZ, article 575, OIZ, customarticle 310, led 378-387)to heightened and inrespect the customs for certain of Serbia, regulations, Montenegro, but on and the Bosnia other hand,and Herzegovina. it led to an Onexcessive the one emphasis hand, the ondecanting certain oftraditional Shariʻa law aspects. into Muslim Some institutions, which had no purchase in southern Slavic custom, became more or less formalities (e.g. mahr or the dower given by the husband to the wife). During this process, the feeling for the legal aspect has been lost. During the interwar period, in some places in Bosnia and Herzegovina, the so-called jacija or dova (a religious ritual and prayer for a happy marriage, which accompanies the celebration) came to be considered more important during the act of contracting a marriage than the wedding act itself in its consciousnessform as private and legal behaviour contract, of which the Muslim is what population Shariʻa law if requires. its exponents had beenShariʻa present law at certainlyan earlier would stage havein the established vernacular itself of those more to securely whom itin was the being applied (i.e. regional languages such as Serbo-Croatian, Albanian, etc.).

155

CHAPTER V The Social and Legal Consequences

of Applying Shariʻa Law and the Existence of the Shariʻa Courts marked a phase in the social and cultural development of Muslim popula- tionsShariʻa in law’s southern mandatory Slavic force lands. and Having application a special through body state of law Shariʻa governing courts their family and inheritance relations was an historical expression of their - tion into the Yugoslav state by means of both the international and the specific cultural vision; a vision secured during that first phase of integra from an oriental and Islamic to Western European society. internal legal orders. Applying Shariʻa law also affected their transition- pression of and a factor in the particularism that dominated private law. In For the legal system of the Yugoslav state, Shariʻa law was both an ex- tion of a shared legal consciousness and so any attempt at unifying Yugoslav civilthis regard,law. Shariʻa law’s mandatory force necessarily affected the forma

1. The Application of Shariʻa and Muslim Social The Muslim populationand entered Cultural the Yugoslav Status legal and governmental framework from different positions, given the historical experience of the previous four decades, and from a number of different situations, regarding the status of their social, legal, and cultural institutions.

157 Fikret Karčić / Shari'a courts in Yugoslavia 1918-1941

- stances as a result. At the time, the most important phenomenon within the socialThe application and cultural of lifeShariʻa of the law Yugoslav took place Muslims under was a range their oftransition circum from an Oriental and Islamic to Western European cultural sphere. Apply- itself developed. ing Shariʻa law during this process necessarily affected how the process

a) The application of Shariʻa law and the Muslim transition from an Oriental and Islamic to a Western European cultural sphere

The German Slavic scholar, Maximilian Braun, argued that the Austro-Hun- garian occupation meant the end of the Oriental period for the Muslims of - gion and social existence.”1 The new legal and governmental framework and theBosnia new and forms Herzegovina. of spiritual It life was posed a break a number from “the of dilemmas comfortable for theunity Muslims. of reli On the one hand, there was the economic and social necessity of accepting European forms of commerce, while on the other there was the traditional resistance to manifestations of European culture and lifestyle. The modern Muslim intelligentsia took so-called Muslim modernist positions that began to appear in all countries where Islamic social institutions were encountering European thought and power. According to this way of looking at things, Eu-

Islamic life-view.2 Such an approach produced a strengthening of the liberal andropean civil “technologies element in public of power” and economic had to be life, accepted, while allowing while also Islamic retaining tradition an to be retained in private. This is the framework within which one should view - tance, it could no longer, as a body of law, hinder social trends towards the supremacythe application of bourgeois of Shariʻa relations, law. Reduced while to its a hegemonyframework in for the family area ofand personal inheri status did not affect government interests. Only the Muslims were subject to their goals, one applying to the private sphere, the other to the public. two setsThe ofsituation regulations, was which somewhat differed different vary significantly in those partsboth in of origin Yugoslavia and in that were liberated from Ottoman rule in 1912 and 1913. The Muslim

1 Muslimana,” Naučni skup Književnost BiH u svjetlu dosadašnjih istraživanja, posebna izdanja ANUMustafa BiH Imamović, “Maximlian Braun o počecima evropeizacije u književnosti bosanskih 2 , vol. 5, Sarajevo, 1978, 105. 158 Ibid. 104. Ch. V / The Social and Legal Consequences of Applying Shari’a Law and the Existence

- - tionspopulation and customs of these (amongst regions thefirst Albanians), encountered and European forms of socialculture commerce and per shapedspectives over under the thelong first period Yugoslav of Ottoman state. Islamicrule retained traditions, a strong tribal presence institu and remained practically untouched in certain areas. and family status, and thus acted to regulate relations within Muslim groups. The legalOne relationsshould remember of Muslims that to other Shariʻa groups law appliedof citizens to outsideissues of this personal sphere were subject to the general civil code. There was therefore no legal hin- drance to Muslims being included in the forms of legal commerce typical of

the Majalla – served as the country-wide property alaw European in Bosnia liberal and Herzegovinastate. This is confirmedand, right upby theto its fact suppression that the codification by the de offacto Shariʻa introduction property of law the – Austrian civil code, never represented an obstacle to the development of civil social and economic relations. the area of the legal regulation of family and inheritance affairs of Europe- an valuesBy its andnature approaches, and goals, whichShariʻa were law slowed based upondown traditionsthe penetration of Roman into that Yugoslav Muslims would continue to be a corpus separatum with re- law and Christianity. In this regard, Shariʻa law contributed to ensuring out, this status was already well-developed at the very start of the expan- siongard ofto Islam,the rest through of the population.the action of As historical Ahmed Muradbegović circumstances, has social pointed and family life, religion, and culture.3 Beyond these issues of personal status and family relations stood the institutions of the political system of the liberal Yugoslav state, its public law, and the prevailing norms of behaviour, which Muslims accepted and according to which they acted. Given the general confessionalisation of Yugoslav - standable solution. The secularisation of marital and family relations would havemarital brought law, applying about the Shariʻa Europeanisation law to Muslim of this marital aspect affairs of the was Muslim an under life, without replacing Islamic values with Christian ones. This was sommething Muslims were very concerned about. The inter-war Yugoslav state lacked the capacity to take this step in any case, so even minimal respect for the confes- wassional that moment both the in addressing international matters obligations of marital and law the entailed constitutional applying guaran Shariʻa.- One further significant circumstance for the application Shariʻa law 3 Nova Evropa

A. Muradbegović, “Problem jugoslovenske muslimanske izolacije,” (Zagreb), no. 4/1921, 108. 159 Fikret Karčić / Shari'a courts in Yugoslavia 1918-1941 tee viewed Muslims as a religious group rather than as members of specific nations or national minorities (Muslims, Albanians, Turks, Roma, etc.). If the were considered as a religious collective, they could be treated as a religious minority whose identity was to be secured through special family and inheritance law and courts. The application of the law was tailored to this treatment of Muslims: the personal application of law goes hand in - ty is typical where the national principle is dominant. handA with number religious of key identification, aspects should while be anstressed emphasis in considering on territorial the validi rela- courts. tionsThe between close relationshipthe various strata between of Muslim law and society religion and meant Shariʻa that law a majority and the of the so-called common folk lacked much awareness of the legal character - dings to imams gave rise to the impression that this was essentially a reli- giousof some ceremony Shariʻa regulations and not a maritaland institutions. contract basedEntrusting in private the conduct law. This of wed understanding was expressed in the view commonly held in Bosnian4 villages that it was more important to organise a wedding celebration than to conduct the marriage ceremony in front of the relevant authorities.5 This is what made it possible for women whose husbands had gone missing, but relationship to have ended had not been met, to simply approach the village where the Shariʻa legal conditionsdova to declare” (a public them act dead of prayer and so for the good marital fortune in marriage) over the new, prospective couple, allowing them to em- barkImam, upon who their would new then life “recite together, a fully convinced of the legality of the procedure.6 - It is of course important to note that the Shariʻa courts’ practice was concerned to raise awareness of the legal character of Shariʻa regula tions and institutions. An example was order no. 101 of the Supreme Shariʻa Court in Sarajevo, promulgated on March 20, 1919 that7 Shariʻa marriages practicallywere to be contractedall of Muslim exclusively inheritance in the law Shariʻa is already courts. contained, in detail, in The situation was a bit different with Shariʻa inheritance law. While

Šta hoće naša muslimanska inteligencija, Sarajevo, 1931, 19-20. 5 Bračne ustanove bosanskih Muslimana prije 1946, POF, XXX/1982, 159. 64 A. R. Prohić, M. Hadžijahić, Arhiv, no. 1-2/1926 (vol. XIII/XXX), 129. M. A. Bušatlić, “U pravno nevaljanom braku rođena djece nasljeđuju svoga oca, a njegova registeržena (njihova putting majka) aside nea wife nasljeđuje with the ga,” qadi, in contrast to Muslim majority countries, where 7 theN. J. practiceCoulson washas notedonly introduced that Muslims in the in Yugoslavialate 19th and and early Dutch 20 thGuiana up until 1937 had toA History of Islamic Law, Edinburgh centuries. (N. J. Coulson, 160 , 1978, 174). Ch. V / The Social and Legal Consequences of Applying Shari’a Law and the Existence

- tance law had attained a legal rather than a religious character in Muslim consciousness.the regulations8 givenThe circumstance in the Qur’an that and the the implementation hadith, the norms of inheritance of inheri contributed to this, as it represented the only possible way to secure a le- gallylaw had valid always division been of under assets. the Moreover, jurisdiction during of the the Shariʻa interwar courts period certainly in Yu-

thegoslavia, Farâ’id it, while was the the Shariʻapublic generally justices whohad no had familiarity the greatest with expertise it at all. in ShariʻaA second law. Most aspect imams that were requires poorly attention acquainted in discussing with the regulations Muslim atti of- political current amongst the Muslim population took any form of princi- tudes to Shariʻa law and the courts is that no single significant spiritual or - rowerpled public Muslim stand community, against it the would implementation be defended in of the Shariʻa civil Muslim at this press, time. regardlessWhenever Shariʻaof political law orientation.found itself9 criticised in the press beyond the nar At the same time, there were public expressions of dissatisfaction at thecertain potential of the for formulae abuse of of its traditional legal institutions. Shariʻa legal doctrine. Reform was sought of the Shariʻa law that would, amongst other things, sweep away- lectuals in Sarajevo in 1928 that sought to adderss the causes of Muslim One finds this viewpoint expressed at the Congress of Muslim Intel passed a resolution on the woman question, stressing the need to take backwardness and find ways of dealing with them. Thus the Congress10 The position that the endowment funds required modernisation to be action to prevent abuses of Shariʻa law that affected women in particular. - - made fit to serve the contemporary needs of the Muslim community en tailed changing a number of traditional rules within Shariʻa law (the invi 8olability of the legator’s intention, the principle of the inalienability of-

The territories of Mali Zvornik and Sakar were cited in the contemporary press as excepti butons ifwhere she wanted Muslims a dowryunder theshe influence had to address of Christian the district neighbours public did court not which apply then Shariʻa ruled to the on inheritance rights of female children. When a girl was married, her brother outfitted her,- - the basis of standard civil law. Even before World War I, the Supreme Muftî� for SerbiaIslams ad- kivised svijet, these no. Muslims133, March to follow15, 1935. Shariʻa inheritance law, as their religious duty, but they re 9 fused. See A. Gemić, “Je li nadležan Maseni sud u porodičnimPravda odnosima), as muslimana,”well as in the press Novo vrijeme). See Novo vrijeme, no. Such writings were published en masse in the JMO paper ( 10 of the Muslim supporters of the January 6 dictatorship ( Prilozi Instituta za istoriju26, July (Sarajevo),11, 1931. XVII/1980, 182-183. Ibrahim Kemura, “Kongres Muslimana intelektualaca u Sarajevu 1928,” 161 Fikret Karčić / Shari'a courts in Yugoslavia 1918-1941 endowment property, the question of depositing endowment funds with banks at interest, etc.). It was typical that the Congress agenda envisaged of itself illustrative of the attitude taken by Muslim intellectuals of all po- liticala simple and report, national without orientations discussion, towards on the the Shariʻa institution. courts, which is in and The publicist Maxim Svara was practically alone in his objection to Muslim intellectuals that they had not sought in a single resolution or ad- marriagedress to the of Congressminors.11 in Sarajevo the removal “of the most antiquated and barbaricFor the provisions most part, of Muslim Shariʻa,” intellectuals referring refrainedprimarily from to polygamy such descriptions and the secularof Shariʻa intelligentsia legal institutions. but even On the by othermembers hand, of the the reform religious position hierarchy regarding and Shariʻa regulations was both accepted and publicly advocated not just by the in a range of writings, the outlawing of polygamy (except in cases of the abso- leading experts in Shariʻa legal studies and practice. One consequently finds, maintain a second in addition) both mooted and approved, as was limiting lute incompetence of the first wife and the proven capacity of12 the The husband marriage to of minors was not practised in Bosnia and Herzegovina. the husband’sIn 1928, Reformright to, unilateralthe short-lived dissolution mouthpiece of the marriage. of the Organisation of most appropriate marital law for followers of Islam and for the most part comprisedProgressive norms Muslims, that argued were perfectly the positions unobjectionable. that Shariʻa However, law remained they rec the- ognized that some of the regulations were such that they allowed room for abuse, therefore avenues towards abuse that needed to be closed off.13 the Muslim reform movement, initiated a polemic against the thesis that On another occasion, Dževad Sulejmanpašić, himself an advocate of

Muslim progress would only be possible after full and complete “social de-islamification,” which would no doubt involve doing away with Shariʻa law. AHe statement asked how by onean author 14 was supposed from 1938 to is “de-Islamify of some interest socially” for the without atti- “de-islamifying” entirely. - tudes of educated Muslims to Shariʻa. He said that, to the best of his knowl 11 M. Svara, Emancipacija muslimanke u svijetu i kod nas edge,12 no Muslim public official had ever publicly stressed a need to Spomemake- nica za II kongres pravnika Kraljevine SHS , Sarajevo, 1932, 49. 13 H. A. Bušatlić, “PravniŠerijatsko položaj bračno supruge pravo ,”u Reformabračnom,, March imovinskom 30, 1928. i nasljednom pravu,” , Zagreb,Gajret, 1926,1927, 91.195-196. H. H. Efendić, “ 14162 Dž. Sulejmanpašić, “Proskribovana knjiga,” Ch. V / The Social and Legal Consequences of Applying Shari’a Law and the Existence civil marriage available to Muslims, no doubt referring to a mandatory 15 civil marriage ceremony, which would have crowded out the Shariʻa one. fromOnce the ranks in a while, of Muslim one couldintellectuals find people who whofound supported inspiration possibility in the forced that secularisationShariʻa law might then be being done implemented away with altogether. in Turkey Theseby Mustapha people Kemal were largelyPasha. the statusWriting of ontransitional the history orders of the and Ottoman not eternal state, and Edhem universal N. Bulbulović rules, as wasstated done.” his view16 that “the legal regulations of Islam should have been given and the courts in Turkey consistently to the Yugoslav Muslims, at least in the texts available The writer to us. did not, however, apply his views on Shariʻa law

- The publicist Mustafa Mulalić was somewhat more definite, writing resist“it is possible the modern to accommodate imperative of Shariʻa simply law doing to theaway spirit with of it.” the times, with out affectingUnder circumstances, the Qur’anic however,foundations, where if thereeven ais Grand a sentimental Muftî17 was need subject to to attack by conservative religious circles for his freethinking interpretations of Islam and where the moderate reform movement ceased publishing its paper after just 11 issues, there was little chance that calls to secu- larise marital law would have much impact on the traditionalist Muslim masses. Most Muslim intellectuals took the view, whether from personal socialconviction evolution. or for reasons of opportunism, that the future of Shariʻa law and the institutions of the Shariʻa courts should be left to the forces of

b) The application of Shariʻa law and Muslim marital and family life property relations within the Muslim family. HundredsHow deep of years this of impact Shariʻa was law in had practice left a visiblecould only mark be on determined personal and by sociological research. The only systematic research into the Muslim family during this period that we are aware of was carried out by Vera Erlich,

15 Glasnik VIS, no. 9/1938,

16 C�amić J. Avdić, “ProblemTurci reforme i razvitak braka turske u vezi države s ženskim sa uvodom pitanjem,” u kulturnu i političku povijest islama342. , Sarajevo, 1939, 129. Edhem N. Bulbulović,Orijent na Zapadu, 155-156.

17 M. Mulalić, 163 Fikret Karčić / Shari'a courts in Yugoslavia 1918-1941

World War.18 There are however other works from the time that deal with a professor at the University of Zagreb, very shortly before the Second- appliedthen current and the issues consequences of Shariʻa family of it. and inheritance law and Shariʻa judi cial practice and that provide partials insight into how Shariʻa law was general concept of marriage amongst the Muslim population, the legal statusWe of will the spouseshere turn (with our aattention focus on theto the wife), impact the durability of Shariʻa of law marriage, on the and the nature of the legal regulation of family and inheritance relations. ask whatThe impact the consequences of Shariʻa law for on Muslim all of maritalthis was and of coursefamily lifedetermined were of the by how it was applied by the Shariʻa courts. In this regard, it is interesting to the consequences of its ineffective application or of the superimposition poorly fitting models of traditional Shariʻa legal doctrine, as compared to Erlich found that in Bosnia and Herzegovina where the Muslim popu- lationof tradition comprised and custom 32% of over the Shariʻa total population law, more properlyin 1931, understood.that there was a transition in family relations from patriarchal severity towards new forms of discourse. She recorded the impact of Islam on family relations, from such religious features as the veiling of women and the rigid separation of the sexes to a resistance to birth control.19 The principle of endogamy or marriage within the Muslim group certainly seems to have been fundamental to the general concept of Muslim marriage during this period.20 this. First, there was the rule forbidding Muslim women to marry non-Mus- Two institutions of Shariʻa law fostered- didlim breakmen, which down remainedto some degree valid throughoutthe strictly endogamousthe period of nature Shariʻa of law’s Muslim ap marriageplication. andMuslim the mennumber could of marrymixed Christianmarriages and increased Jewish women. during the This inter rule- war period. Consequently, in 1931, some 8,166 marriages were performed on the territory of the Ulamâ Council in Sarajevo in which both partners were of the Islamic faith, while there were 102 marriages of Muslim men to non-Muslim women.21 In such cases, even if the non-Muslim wife did not convert, all legal aspects of the marriage were subject to adjudication

18 Vera S. Erlich, Porodica u transformaciji under19 Shariʻa law and within the jurisdiction of the Shariʻa courts. This 20 , Zagreb, 1964, 490. Prilozi za orijen- talnuIbid., 432.filologiju (Sarajevo), XXX/1982, 158-159. 21 Muhamed Hadžijahić,Šerijatsko bračno“Bračne pravo ustanove, 52-53. bosanskih Muslimana prije 1946,”

M. Begović,

164 Ch. V / The Social and Legal Consequences of Applying Shari’a Law and the Existence entailed a legal block to the marital partners inheriting from each other, as ikhtilâf al-dîn, disparitas cultus) an absolute obstacle to inheritance. Even these mixed marriages were forbidden,Shariʻa lawhowever, considers by thedifference well-known in faith decision ( of the Grand Muftî Council of December 21, 1938. kufw, or spousal worthiness’s Full – that limited the the choice of marital partners within the Muslim group. This Thererule stipulated was a second that marriageShariʻa institution should only – be contracted between individuals of the same or equally valuable social status. It was particularly common for the wealthier strata of the Muslim middle class and landown- ing class and naturally led to these strata becoming closed to social mobility. Another consequence for the general concept of Muslim marriage of - tracting polygamous marital relations. This institution was among the applying Shariʻa law that is worth mentioning was the potential for con- plied in practice in the southern Slavic lands, particularly in Bosnia and Herzegovina.most commonly This critiqued fact had aspects been ofnoted Shariʻa by law,Western even iftravellers it was rarely passing ap through Bosnia and Herzegovina during the 19th century.22 The area in Bosnia and Herzegovina with the most polygamous marriage was the Ca- - stances of life in a border area (the high mortality of young men, the im- pactzin frontier of Circassians marches, and largely Tartars, as whoa result made of upthe part specific of the historical troops stationed circum there, etc.). Polygamous marriages were also subject to limitations imposed by - sition of a tax on a second marriage in the Law on taxation of October 25, 1923,the practice under ofan the interpretation Shariʻa courts of andthe criminal by government ban on measuresbigamy). These (the impo mea-

Slavicsures onlylands. lasted Resistance a short to time, government however, measures and the limitingShariʻa regulationspolygamy was on motivatedpolygamy remained by the need in force to defend for as long an asinstitution Shariʻa law whose itself legitimacyin the southern was

One reason for the weak presence of polygamy amongst the Muslims ofbased Yugoslavia on Islamic is, perhaps,teaching thatthan asby anany institution real social it significance. did not have the same roots in tradition in these regions as it had in the Near East. The same was - - true of marriage to one’s father’s brother’s daughter (cross-cousin mar 22 Pregled (Saraje- riage), which Shariʻa law allows, but which the Muslim population, partic See further, Abduselam Balagija, “Poligamni brakovi u Cazinskoj krajini,” vo), no. 4/1981, 467-480. 165 Fikret Karčić / Shari'a courts in Yugoslavia 1918-1941 ularly in Bosnia and Herzegovina, not merely did not practice, but considered tantamount to sin. the female spouse in a marriage. In popular works on the subject, and Shariʻa law also dealt with the personal status and property rights of- scribed by the deployment of commonplaces, without entering into the even a significant proportion of the academic literature, this status is de were realised in practice. legal aspects of the problem or the question of how Shariʻa law norms- ally offered a number of advantages to women over the other legal sys- temsThe in statusthe Yugoslav of the wife lands. under23 Shariʻa family and inheritance law actu women enjoyed full legal agency in business, something which was limited under the Austrian civil code, For Serbian example, civil code, under and Shariʻa Austrian law, property Muslim law. The principle of separate property of spouses was valid under Mus- lim law, and the wife was not required to carry any of the expenses of maintaining the family. Under the Austrian civil code, the husband had the right o use and manage peripheral goods, with the assumption that any increase in property held over the period of the marriage belonged to the husband. order of privileged24 inheritance (ashâb al-farâ’id), in principle receiving an inheritance Under portion Shariʻa half that inheritance of a male law,relative the ofwife the had same her degree place ofin kinthe- ship. Marital partners could inherit from each other legally as long as both partners were Muslim. This approach was considerably more favourable than systems where female descendants had no right of inheritance, just use (as in the Serbian civil code and Austrian property law). Generally, one the right to a home, while the female spouse had only a widow’s right of characterised by economic independence and personal subordination. may make the case that the legal status of women and the Shariʻa law was could be realised. For the mass of peasant Muslim women, the economic A woman’s social standing also affected the degree to which her rights- ucation and the traditional isolation of Muslim women had similar conse- quencesindependence for their envisaged free agency under in Shariʻabusiness law terms, was atas bestthey illusory.were very Lack rarely of ed in a position to take advantage of their preferential legal situation.

In this regard,O Muslimanima one may accept – sociološke Dragiša i N.etnografske Lapčević’s beleške claim ,that Belgrade, according 1925, to 19).the provisions in the Qur’an Položaj “Muslim žene women u privatnom enjoy more pravu rights kroz istoriju and any do of danas their, Belgrade, Balkan fellows.” 1939, 101, (D. Lapčević, 24 Cf. Ana Božić, Spomenica Mau- roviću,155-156, Bertold Eisner, “Privatno-pravni položaj žene po današnjem pravu Jugoslavije i njegovo uređenje u jedinstvenom Građanskom zakoniku za Jugoslaviju,” 166 I, Belgrade, 1934, 327-419. Ch. V / The Social and Legal Consequences of Applying Shari’a Law and the Existence

Patriarchal attitudes and tradition also often undermined the imple- were relatively favoured.25 In Macedonia, Muslim women made little use mentationof their rights, of Shariʻa often forgoinglaw, particularly any inheritance in those because parts of ofit environmentalwhere women pressures. Female children had to be happy with the provision of a home. In Bosnia and Herzegovina, the situation was somewhat different. A money-based economy and declining political fortunes had undermined the patriarchal Muslim family. In some places one still found the understanding that female kin should not take their share in inheritance. For the most part, however, women did receive their inheritance in accordance with take it in money rather than as land in order to ensure that possession of theShariʻa land regulations remained in with the thehands proviso of the that male it wasdescendants. sometimes the custom to - riage with a unilateral declaration (talâq, repudium taught,Shariʻa however, regulations this possibility allowed thewas husband hedged aroundto dissolve by considerations an existing mar of religion and morals, an effective defence against abuse of). the As Shariʻaright to uni was- lateral dissolution of the marriage, and the conditions of a stable patriarchal way of life. As Muslim traditional structures and consciousness weak- ened, so did the effectiveness of this mechanism. There was an evident upward trend towards the dissolution of mar-

whichriage in meant the interwar approximately period. Betweenone in four 1931 marriages and 1941, ended 7,118 in marriages dissolution. and26 The1,854 crisis divorces in Muslim were marriage performed manifested in front of itself the in Shariʻa other courtways intoo Sarajevo via the

suchphenomenon relationships of so-called on the “wildterritory marriages” of the Ulam (concubinage)â Council in which Sarajevo. were rareOne beforereason 1918.for this In was 1937, the the fact local that religious under the authorities rules of the recorded Hanafî madhab271 cases27 and of request a judicial divorce of the marital union on the grounds of abuse by theconsequently husband. Inin suchthe practice cases where of the the Shariʻa husband courts, would the not wife accept had no an right agreed to dissolution of the marriage, women often abandoned the marital union de facto returning to their families and contracting a new marriage after a cer-

25tain period of time without dissolving the first one. 26 El-Hidaje V. Erlich, op. cit., 173-175. Kalendar Gajret, 1938, 109.Kasim Kadžić, “Razvodi braka kod nas,” , no. 4/1942, 76. 27 Abduselam Balagija, “Konkubinati (divlji brakovi) kod muslimana,”

167 Fikret Karčić / Shari'a courts in Yugoslavia 1918-1941

The weaknesses of the traditional development and partial applica- come to the fore particularly in the problem of the rising frequency of di- tion of Shariʻa law and the procedural shortcomings of the Shariʻa courts the right to dissolve the marital relationship (tafwîd al-talâq). Where the vorce. According to the traditional interpretation of Shariʻa, the wife has - blewoman to act was upon independent this option. (financially)Under the concrete and had circumstances some knowledge of the ofYugo her- slavShariʻa Muslims, law rights given and the the situation Shariʻa of justices most Muslim took an women active role, and itthat was a signifpossi- icant number of marriages were contacted by proxy, i.e. without the wom- - lackedan being the personally necessary present, inventiveness this possibility, to introduce offered a by practice Shariʻa oflaw inserting in prin groundsciple, was into very the rarely marriage deployed. contract, The given supreme its private Shariʻa legal courts, character, moreover, that have allowed the wife to request and receive a dissolution.28 - Shariʻa legal science may not have stipulated explicitly, but that would Shariʻa prac ortice when could the have marriage taken awas different contracted, path. asA. forBušatlić the wife. proposed29 This proposalreducing was the nothusband’s accepted right in practice.to unilateral dissolution to cases clearly stipulated in law out the divorce proceedings. It was, after all, obvious that the simple and The Shariʻa courts opted for a technical measure instead – drawing- ing to the rising number of divorces.30 In practice, it was enough for the swifthusband nature to declare, of the procedure orally or offeredin writing by thethat Shariʻa he was courts leaving was his contribut wife and considered a written submission of such a declaration to be a relevant le- galthat document act would to havewhich Shariʻa one might consequences connect dissolution to follow. of The the Shariʻamarital courtsunion, but not as grounds for initiating divorce proceedings. - riage and their procedural simplicity had positive results in at least one exceptionalThe Shariʻa case. courts’ The race permissiveness laws in Germany regarding coincided the dissolution with a rise of in mar the number of Jewesses with German citizenship getting married to Muslim 28husbands at Shariʻa courts as a way of attaining Yugoslav citizenship and his book Emancipacije muslimanke u svijetu i kod nas, 28. 29 The publicist Maksim Svara addressed such an objection to the Supreme Shariʻa Courts in Spomenica za III kongres pravnika Kraljevine SHS 30 H. A. Bušatlić, “Pravni položaj supruge u bračnom, imovinskom, i nasljednom pravu,”Kal- endar Narodna Uzdanica , Zagreb 1927, 196. Kasim Hadžić, “Za usporavanje brakorazvodnog postupka pred šeriatskim sudovima,” 168 , XIII/1945, 99. Ch. V / The Social and Legal Consequences of Applying Shari’a Law and the Existence escaping Nazi persecution. The marriage would subsequently be dissolved by a simple declaration by the husband.

This was a matter of taking advantage of Shariʻa law under concrete circumstances rather than any conscious activity on the part of the Shariʻa notcourts. to conduct As early such as August weddings 25, 1938,since marriagesthe Supreme that Shariʻa did not Court involve in Sarajevoa lasting had already sent a circular to its constituent Shariʻa courts ordering them- 31 commitment to a common life were not valid under Shariʻa law. The Minis thetry ofdivorce Justice process also sent that a warning included to requiring the Shariʻa counselling courts to similarfor the husbandeffect. to encourageShariʻa him judicial to rethink practice his utilized intentions, a number proposals of measures to accept to a consensualslow down dissolution of the marriage, or issuing a demand that the husband make immediate payment to the wife the marital portion (mahr or dower) and 32 The dower to be paid back in the case of a dissolution of marriage was anormally month’s agreed alimony or on set receipt at a relatively of the declaration symbolic level, dissolving in the the practice marriage. of Yu- goslav Muslims, reducing the effectiveness of such economic measures. -

The Shariʻa courts continued to neglect the institution of marriage con- sitiontracts, of whereby women theafter property dissolution relations of marriage. of the spouses could be defined, and which had the potential to mitigate significantly the unfavourable po- uted to the ineffectiveness of the legal protection offered to the wife. A hus- bandThe who fact neglected that Shariʻa his law marital was applied,obligations, at best, insulted, only partially beat, or also otherwise contrib abused his wife was, according to the teachings of the Hanafî madhab was

(taʻdhîr) of the qâdî thesubject right to to monetary impose such fines, sanctions corporal at punishment, the very beginning or prison, of Austro-Hungarian at the discretion . The Shariʻa courts in Bosnia and qâdîHerzegovinas the right had to dislost- - rule, but the Shariʻa legal compendia did not give the thoughsolve the certain marriage individual by judicial qâdî decisions did come in suchup with cases interesting either. Shariʻa solutions. legal prac tice struggledFor example, to find in cases effective where measures the wife both accused globally the husband and, in this of abuse case, evenor of drunkenness, the husband might be called to make a statement into the record that he would no longer drink or beat his wife and that were he to break

31 Tumač šeriatskih propisa, 80. 32his word that wouldŠeriatsko-sudski in and ofpostupak itself be considered sufficient to liberate his H. Muradbegović, H. A. Bušatlić, , 73, 129. 169 Fikret Karčić / Shari'a courts in Yugoslavia 1918-1941 wife. All the Islamic legal schools recognised this legal recourse under the name of taʻlîq al-talâq means of deferred conditions.” The divorce is triggered by the appearance of the circumstance the wife. It waswishes a matter to protect of “the herself dissolution from. As of the marriage husband by would in this case be the one determining the survival of the marriage, the wife would receive a court decision on dissolution of the marital union on the 33 The lack of proper solutions for these problems in marital law and first occurrence of the required conditions. - dividual women of the Islamic faith had to be labelled immoral or change theirthe patchiness religion in of order Shariʻa to freejudicial themselves practice frommeant their that marital in extreme connections. cases in

A woman who was generally of goodThe moralSupreme character Shariʻa hadCourt to ingive Sarajevo into a dealtdissolute34 with lifestylea case of essentially the first type to inspite judgement her unfaithful no. 472 husband of November who nonetheless 11, 1922. refused to agree to her request - delity, a woman would not be granted a dissolution of marriage simply on her for a dissolution of their marital union. Even in the case of her husband’s infi- taʻdhîr sanctions. However, it was own request. The traditional interpretation of Shariʻa considered the hus band’sorder for infidelity the woman a criminal to free act, herself giving risefrom to an intolerable marriage, she was forcednot a valid to disqualify reason for herself dissolving personally an existing and morally marriage. thus In forcing this specific her husband case, in to end the marriage himself. To add to the irony of all this, the husband then - dren. He claimed she was a woman whose behaviour ran contrary to the laws went on to contest his former wife’s right under Shariʻa to bring up the chil of Islam and therefore she was not fit to raise children. Thanks to the fair mindedness of the Supreme Shariʻa Court in Sarajevo which investigated the- reasonablereasons for formalthe wife’s verdict. bad behaviour,The court assignedshe was notthe fatedmother to becomethe right a todouble raise hervictim children – first (ofhaqq the rigidal-hidâna interpretation), starting offrom Shariʻa the positionand then that of a theseeminly most imun- that belongs primarily to the mother and which she does not lose either throughportant thing bad behaviour in raising underageor by being children of a non-Islamic was “softness faith. of heart,” a character Another woman decided to change her religion in order to rid herself leaving the faith (ridda, apostasy) did not envisage so much the annul- of an intolerable husband and remarry. While the Shariʻa law governing 33 Šta hoće naša muslimanska inteligencija, Sarajevo, 1931, 18-19. Mjesečnik Ali Riza Prohić, 34 , no. 10/1923, 444-445.

170 Ch. V / The Social and Legal Consequences of Applying Shari’a Law and the Existence ment of marriage (fash) as separation from table and bed (firqa), this was a way for an individual of the Islamic faith to renounce their personal sta- 35 By addressing itself to a wide circle of male and female kin of a de- tus and exit from under the jurisdictionHanafî of the madhab Shariʻa led courts. to fragmentation ceased legator, the Shariʻa law of thearâdî miri) helped alleviate the harm- fulof the consequences estate. That that fact propertythat the lion’s parcelization share of mightcultivable have land had was for agriculexempt- turefrom and the livestockapplication rearing. of Shariʻa law ( - able possessions and involved two tendencies: the circle of individuals calledShariʻa to inherit inheritance tended lawto expand was applied under tothe houses, regulations garden on land, kinship, and whilemov the breaking up of property ensured an economic basis for the independent survival of smaller families. The predominance of individual families and so-called paternal cooperatives (father and married sons) amongst the Muslim population in Bosnia and Herzegovina was a concrete expression of these regulations.36 - - The limited application of Shariʻa law in the area of inheritance al lowed people to manipulate the regulations and goals of the Shariʻa legis legallators. institutions Shariʻa law diddid not,not allowhowever, gift-making apply to under Muslims conditions in Yugoslavia, of or in thebe- case of death with the intention of protecting the legal heirs. These Shariʻa- der the regulations of the civil code. So, for example, while still alive, the legatorcause the could significance use such and gifts validity to exclude of gifts individuals or presents (particularly was dealt with female) un

Certain relations in the family and forms of personal behaviour37 shapedwho would over otherwise the course have of thebeen historical called to development inherit under of Shariʻa. Muslim society were stubbornly retained regardless of not having the sanction of Shariʻa plitaand of in being Macedonia essentially and Kosovo. outside This the jurisdiction was the custom of the of Shariʻa the bridegroom courts. or his familyA good paying illustration the parents of the offirst the type bride of aphenomenon sum on the occasionis the so-called of the wedding as compensation for the costs. As the parents retained part of this sum for themselves, the whole thing was somewhat reminiscent of

35 Islamski svijet 36 Bračne ustanove bosanskih Muslimana, 159. A. R. Prohić, “Jedan šeriatsko-pravni problem,” , no. 126, January 25,Arhiv 1935., no. M.5/1938 Hadžijahić, (vol. XXXVII/LIV), 398, fn. 13. 37 M. Begović, “Položaj žene i ženskih srodnika u šerijatskom nasljednom pravu,”

171 Fikret Karčić / Shari'a courts in Yugoslavia 1918-1941 consultation with the elders of the Islamic Religious Community de- the ancient custom of brideprice. Representatives of the Shariʻa courts, in thenounced institutions the custom of customary as contrary tribal to law.Shariʻa38 and took steps to suppress it. This Thewas best an exampleexample ofwhere the second Shariʻa type did isnot the succeed veiling ofin Muslim doing away women with or the wearing of the headscarf and niqab. During the interwar period, this question dominated public life in Bosnia and Herzegovina as part of a larger problematic of the emancipation of Muslim women. There was a strong current amongst Muslim intellectuals whose ranks included prominent individuals from the Islamic Religious Community (especially the Grand Muftî,

Džemal Č�aušević) and the Shariʻa courts (A. Bušatlić) who advocated foring,uncovering employment, women’s and facesgenerally and improvingintroducing the European status of stylesMuslim of women. dress that On thenonetheless other side satisfied stood thethe conservativereligious requirements current in ofthe Islam, Ulam asâ, wellthe qâdîas schools, and the representatives of the Muslim middle classes, who enjoyed the practi- request for change in traditional forms of behaviour as heresy or an attack oncally the absolute freedom support of the Islamic of the masses. religion. This current qualified practically any

- The issue of Muslim women’s clothes was outside the jurisdiction of the Shariʻa courts but was liable to the sanction of traditional Muslimferedža pub (licniqâb opinion.), and Individual that it was representatives imposed by the of traditions the Shariʻa of Muslimlegal disciplines, society.39 like M. Begović,These interpretations proved that Shariʻa were lawnot, didhowever, not require accepted the by veil the or Muslim masses, and traditional norms used to separate or isolate women from public life, particularly those related to traditional costume, were clung to with more devotion and vigour than the regulations of Shariʻa law proper. c) A critical review of opinion on the application of Shariʻa law and its role in Yugoslav Muslim social life

There is still not really good and comprehensive legal treatment of the -

38implementationŠerijatsko of Shariʻa bračno lawpravo for, 89-90. the Muslim population in interwar Yu 39 Pravna misao (Belgrade), no. 11-12/1936, 236- M. Begović, M. Begović, “O emancipaciji muslimanke,” 254.

172 Ch. V / The Social and Legal Consequences of Applying Shari’a Law and the Existence goslavia. With no pretensions to offer one here, we would nonetheless like to provide an outline of some of the circumstances that any such account would have to take into account.

Critical reviews began to be published that A law abolishing the Shariʻa40 courts in Bosnia and Herzegovina was passed on March 5, 1946. touched upon the content and application of Shariʻa law. The Minister of- italJustice relations in Bosnia had placed and Herzegovina, women in a subordinate Hamdija Ć�emerlić, position pointed to men, outbut that in a statement to mark passage of the law that Shariʻa law regulations on mar

implementation of the law had41 made their situation even more difficult than Shariʻa law itself required. 42 regardingZaim Šinheritance,�arac gave the but problem that her a positionbit more in attention all these in areas one ofwas his only articles. made worseHe wrote by thatbackwards Shariʻa implementationlaw also disadvantaged and imprecise the woman interpretation. within marriage Thus, depend on the whims of the male, as the wife could retain her right to di- vorcefor example, during underthe ceremony Shariʻa regulationsor while making the survival the marriage of the marriagecontract. Polygadid not- my was not ordained, but merely allowed under conditions which were hequite did difficult accept thatto meet. major The errors author had held been the relatively practice rare and in procedures the more recentof the past.Shariʻa In courtsany case, responsible he felt that for had worsening the material the provisionsposition of beenwomen, properly although im- marriage. The same was true of inheritance law. From the point of view of plemented, Shariʻa marriage wouldmulk have property been verywas notclose merged to modern with civilher

Frominheritance, this it followed a Muslim that woman’s the Muslims of Bosnia and Herzegovina had the leasthusband’s, to fear but as a in result other of legalchanges areas to maritalwomen andwere inheritance in a far worse affairs position. and the introduction of new legal principles in socialist Yugoslavia. 43 related to regulations and institutions for whose reform representatives One may note that most of the objections to the content of Shariʻa law state, there had been some hesitation on the part of government and po- of Shariʻa legal studies and practice had long been calling. In the interwar

Službeni list litical Sarajevski actors dnevnik over the mandatory nature and scope of Shariʻa law, legal 40 , NR BiH, no. 10, March 6, 1946. - 41 Preporodov, March 9, almanah-kalendar 1946. 42 Ibid.,Zaim 80.Š�arac, “Položaj Muslimana u vjerskom pogledu u vezi s odvajanjem vjerskih organiza cija od države.” , Sarajevo, 1946, 76-80. 43

173 Fikret Karčić / Shari'a courts in Yugoslavia 1918-1941

- bo-Croatianregulation of was the only Shariʻa just courtbeginning system to behad irrelevant. only come This after had a made fairly it long im- possibleperiod, and to theidentify idea ofa legislativecodifying Shariʻa framework family for and reform. inheritance Clearly law enough, in Ser greaterthe Shariʻa steps judiciary in this area. did introduce One should positive remember novelties that such into activities the application would of Shariʻa law through practice, but they could have made considerably only came to pass half-way through the interwar period. haveMoreover, required athe stable judiciary institutional was not base itself for the the determining Shariʻa courts, factor and in thisthe application of given law. The courts were called in only when their partic- situations. Beyond that, it was the social position and consciousness of the peopleipation normswas needed were addressedto get certain to that types determined of job done how or anddeal whenwith conflicta given - ularly those in Bosnia and Herzegovina, had shown a marked resistance toright innovation would be through realised, history, including even Shariʻa if it came ones. from Yugoslav the Islamic Muslims, authorities partic themselves. This is a common characteristic for populations in border areas between different cultures, exposed frontiersmen who are afraid of losing the big along with the small, as Eastern wisdom puts it. This is why no major reforms capable of transforming centuries-old practice were to be expected in the barely two decades of interwar Yugoslavia.

He contended that under the Law on Shariʻa courtsS. MuslimsCulja dealt had with been certain given aspects 44the position of Muslim of either attitudes a ruling to Shariʻa caste or law a disre in his- gardedtreatment minority, of the Shariʻa relegated courts. to a reservation. As the Muslims were a constituent part of the Yugoslav national being, they could not be accorded privileges, but neither should the principles of colonial policy be applied to them. Start- to create a single Yugoslav nation from the multifarious tribes, separated by ing from the unitarist understanding that Yugoslavia’s historical mission was- history, cultural influences, and foreign rule, the author evaluated the institu tion of Shariʻa courts as a truly major deviation from the goal and one that life,needed leaving to be external rectified legal as soon relations as possible. between The citizens Shariʻa to courts national should, or state like law. the other spiritual courts, be limited to their own natural field, the inner religious

While we cannot accept S. Culja’s position without reservation, as we start S. from Culja, Građanskothe position procesno that pravo Shariʻa Kraljevine law, Jugoslavije even if, I, inspired 165-166. by religion and

174 Ch. V / The Social and Legal Consequences of Applying Shari’a Law and the Existence implemented in principle on a religious basis, did serve the Muslims of the Yugoslav region as their civil law through history. It was in this sense that

The principles of this law had, alongside other factors and through long- termits application application, was shaped demanded the legal in the consciousness Yugoslav state of fromthe Muslim 1918 topopula 1941.- tion, so that they had passed over into custom and tradition. Regardless of the extent to which the legal views and customs of the other Yugoslav peo-

Austrian property law) and consequently upheld in judicial practice, this wasples nowere argument reflected for in not codes respecting of civil lawthe (thelegal Serbian views and civil customs law code, of the - mented by state courts and not bodies of the religious community. This meantMuslim that population. the law Thisthey isapplied particularly received, so because ipso facto Shariʻa, the statuslaw was of implea civil code for Muslims.

2. The Application of Shariʻa in light of the general condition of Yugoslav Private Law de factoJust as government the Shariʻa sanction,courts were a part structurally of the government and functionally legal system. a part Inof thisthe judicial system of the interwar Yugoslav state, Shariʻa law became, by also having an impact on developments in that sphere. One may see this bestway, fromit reflected an analysis the situation of the general in one conditionarea of Yugoslav of the maritalprivate lawlaw, ofwhile the time and attempts to bring it into line with civil law.

a) Implementing Shariʻa as an expression of and factor in the confessionalisation of Yugoslav marital law

A fundamental principle of public law in modern European states, namely legal standing, did not hold in interwar Yugoslavia. Even though it did as- cribethat belonging to the constitutional or not belonging principle to a given that marriage religious faithwas45 underis indifferent the protection to one’s of the state, interwar Yugoslavia forbore from declaring its own sovereignty in this area and so taking family law fully into its own hands, whether in de-

Arhiv

45 M. Bartoš, “Bračna pravila pojedinih crkava,” , no. 1/1934 (vol. XXVIII/XLV), 59.

175 Fikret Karčić / Shari'a courts in Yugoslavia 1918-1941 termining norms or the role of the judiciary in civil areas. Instead, it declared that in areas of marital law, jurisdiction, and procedure, it was retaining the regulations previously in force in the various parts of the country. Under the concrete conditions of interwar Yugoslavia, this meant sanctioning a multitude of concepts of marriage and a wide range of bodies with responsibility for dealing with marital issues. The broad range of valid solutions stretched from civil marriage and the exclusive jurisdiction of the regular civil courts to exclusively religious marriage and the jurisdiction of the spiritual courts. Both civil and religious marriage coex- isted on the territory of the same state, but the latter form was dominant over a larger part of that territory. The application of confessional marital law, the existence of spiritual courts, and the recognition of their decisions in the civil sphere gave the beyond the persuasiveness of their religious teachings to that of govern- mentrecognised coercion. religious Since communitiescivil marriage influencewas not available over their throughout faithful then the terriwent- tory of the state, citizens had no choice but to belong to some religious community. The lack of government registers (of births and deaths) further contributed to this. One consequence of this confessionalisation of marital law in a multi- regulations resulting from oppositions in principle between the teachings offaith the (and various multinational) faiths. This community was made was more a significant complicated variance by the inexistence marital not just of a variety of46 Christian churches, but also of non-Christian reli- - - icentgious resultsaffiliations. of melding The ways various marital traditions law was faded applied in the shows face how of increasingly tempestu ous the process of acculturation was in the first Yugoslav state. The benef The different approaches taken by the religious systems47 of law to par- ticularmarked marital intolerance issues and and growing proselytism distrust on theand partconflict. of certain religious cir- courts themselves, as well as between the spiritual and the civil courts, so thatcles resultedit became in necessaryfrequent conflict to pass over a so-called jurisdiction inter-confessional between the spiritual law to make clear the provisions of inter-religious law. The confessionalisation of marital law caused problems in discussing the consequences of mixed marriages. Under the governing principle of

- Spomenica VI Glavne skupštine Kongresa pravnika Kraljevine Jugoslavije u 46 “OdnosZagrebu državnog dana 7-9. i IXcrkvenog 1934 zakonodavstva, naročito s obzirom na zaključenje braka, refe V.rat Erlich, Matije Porodica Belića,” u transformaciji, , Zagreb, 1934, 16. 47 417-419.

176 Ch. V / The Social and Legal Consequences of Applying Shari’a Law and the Existence parity, the state should have treated all recognised religions equally. On the other hand, the teachings of the different faiths had quite contrary provisions on mixed marriages. What they had in common was that each religious community tried 48to ensure the dominance of their own - ination of the children from that marriage. flock in any mixed marriage, opening the door to their own spiritual dom characteristic of states where religious law is in force, had even heavier consequences.The phenomenon The condition of so-called of marital ‘conversion law and civilwithout legislation conviction,’ allowed which indi is- viduals to change49 religion in order to free themselves from an earlier marriage and marital obligations, particularly in cases where the rules of the faith the marriage was originally contracted in made it either impossible or 50 The most common form of conversion without conviction was from Christianity to Islam. A female Christian who wanted to get out of anvery existing difficult. marriage that was considered, under the principles of her faith, indissoluble, could accept Islam and, calling on the obligatory nature of differences in religion, which are considered an absolute obstacle to the Shariʻa law for Muslims, seek dissolution of her earlier marriage because of new marriage with an individual of the Islamic faith or with another indi- vidualsurvival of of the the Christianmarital relationship faith, after under re-converting Shariʻa. She to couldChristianity. then contract A male a Christian could simply convert to Islam and seek a new marriage with a allowed polygamy or he could simply end a marriage that had become intol- erablewoman to of him Islamic, for whatever Christian, reason or Jewish by a unilateralreligion, because declaration. Muslim men were courts, showed frequent disregard for the regulations on jurisdiction and cel- ebratedSome new spiritual marriages courts, for such and converts indeed without some of even the bothering first instance to deal Shariʻa with their existing marital relations. This led to tensions in inter-religious circles,

48 theM, Belić, same op. problem. cit., 17. To prevent abuse of conversion to Islam, particularly by foreigners, the 49 Modern Muslim countries that have retained Shariʻa law for issues of personal status face-

unilateralEgyptian judiciary declaration. has establishedSince the national the practice law applicable of applying to the Europeans rules of the(who petitioner’s tend to be na in tional system of law, rather than Shariʻa, when a convert seeks dissolution of a marriage by

Moslemquestion) Near does East,” not recognise AJCL repudiation, insincerely changing one’s religion is no longer a 50 path to a quick divorce. See HerbertLično bračno J. Liebesny, pravo “Religious Law and Westernization in the- , no. 4 (autumn 1953), 502. Pravosuđe, no. See further Ž�ivojin M. Perić, , 70ff., Dragoljub Aranđelović, “Može li suAr- hivprug koji je napustio hrišćansku vjeru tražiti na osnovu toga razvod braka,” 1/1935, 1-5, M. Begović, “Može li prelaz na islam poslužiti kao uzrok za razvod braka,” , no. 5-6 (vol. XXXVIII/LV), 1-4.

177 Fikret Karčić / Shari'a courts in Yugoslavia 1918-1941 though such conversions did nothing to increase the strength of the individual religious communities, serving only to demonstrate that anything can be used to further personal interests, including religious teachings. This state of affairs made clear the need for measures to prevent abuses of the increasingly common phenomenon of religious conversion. Law on Shariʻa courts - ingWith marriages regard to where the Shariʻa one of courts, the spouses this was had done converted by interpreting to Islam. They the also forbid women who so asconverted to remove to these Islam courts’ from rolecontracting in annulling marriages or dissolv in a - vorced by the relevant authorities.51 Shariʻathis since court they before considered their previousthe state marriagesto possess hadthe requisitebeen annulled authority or di to Shariʻa legal experts did not oppose the scope of their work, even if this went contrary to how the matter had issue regulations to its own agencies. In this case, the Shariʻa courts, on A conclusion of the Grand Muftî 1938,traditionally on withholding been dealt approval with in Shariʻafor conversion legal studies, to Islam as was from the individuals case here. ’s Grand Council, dated December 22, 52 converting for speculative reasons was a further contribution to the fight courtsagainst was abuses an expressionof Shariʻa law. of the principle of confessionalisation that so dominatedOne may the conclude marital that law implementation of the interwar of Yugoslav Shariʻa law state. via stateOne should,Shariʻa courts operated. The spiritual courts based their jurisdiction on the teach- inghowever, of marriage note the as differenta sacred mysterybasis on andwhich the the need Shariʻa for a andreligious the spiritual form of - - tionthe celebration and authority of marriage, on the religious allowing need in the to implement final analysis a separate for a non-confes and reli- giouslysional marital inspired and law property in marital law. and The family Shariʻa affairs, courts without based theirrequiring jurisdic any particular religious forms or rituals. This distinction was particularly evident in attempts to harmonise Yugoslav civil law.

b) Applying Shariʻa and the attempt to harmonise Yugoslav civil law aimed at removing the negative consequences of legal particularism in this areaThe harmonisationand so allowing of consistent marital law implementation first appeared ofto thebe amodern necessary government measure

51 52 Glasnik VIS, no. 2/1939, 60. M. Begović, “Može li prelaz na islam poslužiti kao uzrok za razvod braka,” 4.

178 Ch. V / The Social and Legal Consequences of Applying Shari’a Law and the Existence principle whereby marriage is considered essentially a legal institution. Un- der circumstances where different religious understandings of marriage ex- marriage. The liberal democratic Yugoslav state was not ready to fully em- braceist, there this is principle. no way Ato number harmonise of international regulations inobligations this field regardingwithout laicising the implementation of different forms of marital law (the Saint Germain treaty and the Concordats) stood in the way of introducing a mandatory civil form of marriage. The major religious communities also overwhelmingly such measures as acts against religion, a sentiment shared by most of the population government statistics of March 31, 1931). Finally, there was the negative experience(only 0.008% with ofcivil the marriage population on declaredformer Hungarian itself of no territory religious to affiliation consider. in53 the The prototype of the Civil code for the Kingdom of Yugoslavia did accept a non-confessional marital law, but it also retained the religious form of conducting a marriage. With one eye to the Austrian system, which was still valid in Slovenia and Dalmatia, the religious form was declared mandatory in principle, however, a civil marriage was allowed in exceptional cases where absolutely necessary (in cases where the marriage was between individuals neither of whom had any religion or where one came from a religion that did not allow mixed marriages). 54 harmonising marital law. The rule of accepting a non-confessional marital law whileThe question retaining of thethe religiousfuture of formShariʻa could was notraised be appliedduring this in this work case. on - riage.55 Marriage is a form of private legal contract, the main elements of Shariʻawhich are does the not proposal require and a particularits acceptance religious by the form marital to carrypartners out or a theirmar representatives. The only requirement that makes any reference to a religious context is that the witnesses must be Muslims. The presence of the -

Shariʻa justice is only required for the purposes of registering the mar religiousriage. A marriage point of viewcontracted (diyâneten outside), but a onlyShariʻa takes court on roomits full that civil meets and legal the weightmaterial (qadâ requirementsn set down by Shariʻa law is considered valid from a Losing its civil and legal weight would have meant the regulations of ’e ) after legalisation and registration with a Shariʻa justice.

53 Da li pojedini crkve imaju pravo zakonodavstva u bračnim Shariʻaposlovima family,, 8-10. and even more especially, inheritance law, would have lost all M. Belić, op. cit., 21, SeregejMišljenja Toicki, o Predosnovi Građanskog zakonika za Kraljevinu Jugoslaviju,

5554 B. Eisner, M. Pliverić, Zagreb 1937, 120-121. See further M. Begović, “Forma islamskog braka,” Arhiv, no. 1/1935 (vol. XXX/XLII), 51-57.

179 Fikret Karčić / Shari'a courts in Yugoslavia 1918-1941

practical significance since neither a legal form nor the participation of any thelegal sacramental body was required character for of the human validity actions. of legal Respect acts orfor actions it was a in remnant this field. of theFor understandingMuslims, Shariʻa of lawthe all-embracingdid not derive natureits significance of Islamic from teachings teachings and onits realisation as simultaneously religion, state, and civilisation. Under the circumstances of interwar Yugoslavia, there was no way to respect this argument, given that other social, political, and legal relations and principles into a set of norms with exclusively spiritual sanction proclaimed by eccle- siasticalwere now authorities. dominant. It At could the same only eithertime, Shariʻa be retained law could as a formnot morph of law itselfwith government civil-legal sanction or abolished altogether. The Yugoslav state was not ready to take this latter step even during its attempt to harmonise the civil code. There were too many legal and political reasons against it.56 - of the imposed constitution. ReasonsThe first of included the second the sortinterpretation included the of artireli- giouscle 10 viewsof the Treatyand conservatism on the protection of the of Muslim minorities masses, and asarticle stressed 100, itemby ex 4- perts in the legal and political conditions of the day. The demand in Mus- - - lim circles to retain Shariʻa law came from politicians and religious lead makeers. In perfectly document clear no. in843 any from future July civil 14, 1937,law code the thatSupreme its provisions Religious did Coun not holdcil of forthe MuslimsIslamic Religiousin matters Community of personal, called marital, on the and Justice inheritance Ministry law, to

A provision to this effect was envisaged for prominent57 inclusion in thewhere enabling the provisions law for the of civilShariʻa law continued code or in to the hold explication sway. of the law code ius singulare for the Muslims of Yugoslavia. As such, the law continued to be validitself. and This to would be applied have throughconfirmed government the understanding courts right of Shariʻa up to the law revolu as - tionary transformation of Yugoslav society. the principle of one law valid for all similar cases was introduced under a The Shariʻa courts in Bosnia and Herzegovina were abolished when law passed on March 5, 1946. In the other parts of Yugoslavia, there were 56 no laws doing away with the Shariʻa courts, but there too they ceased to B. Eisner, “Š�erijatskoSpomenica pravo i naš VI Glavne jedinstveni skupštine Građanski Kongresa zakonik,” pravnika Pravosuđe, Kraljevine no. Jugoslavije 6/1936,, 11ff., Toma Pavlović, “Odnos državnoga i crkvenoga zakonodavstva, naročito s obzirom na Glasnikzaključenje VIS, braka,”no. 3/1938, 133. 71-71. 57180 Ch. V / The Social and Legal Consequences of Applying Shari’a Law and the Existence function. Matters that had previously been within their remit were now handed over to the regular civil courts. Thus, the Muslim population in Yugoslavia found itself subject to the general civil code in matters of personal and family status and of inheritance as well. made by the Islamic Religious Community to establish courts equivalent to the spiritualAfter abolition courts of of the the other government religious communities Shariʻa courts, for no the attempts simple reason were might have issued. Under conditions of the separation of the religious com- that Shariʻa law does not recognise such fora or any spiritual sanctions they- - lymunities religious from and the ritualistic state, religious character. officials Weddings were continuedauthorised to to be conduct carried wed out dings in accordance with Shariʻa regulations, but these acts now had a pure obligations thus accepted were without practical consequence. Agreements werein the still form made of Shariʻa over dowries legal contracts, or mahr inbut cases for allof divorce,intents andbut thepurposes, obligation the was not admissible in court (and could not be sued for in court). Unlike weddings which took place after the civil marriage, no forms of the dissolution of marriage took place before the bodies of the Islamic Religious Com- munity. This perhaps should have been expected given that marriages were

This all goes to show that validity in the civil and legal sphere provid- stilled for contracted in the interwar in accordance Yugoslav with state Shariʻa through regulations. the institution of govern- ament system Shariʻa of norms courts with was only actually spiritual a necessary or ecclesiastical condition sanction for the survivaland found of itselfShariʻa more law. or Without less transformed it, Shariʻa law into proved a set of poorly moral suitedand customary to adapt rules.itself to

181

Conclusions

teaching or derived from those sources with the sanction of the legal 1. Shariʻaauthorities law is ona set a givenof regulations territory containedand so established in the sources as legal of Islamicnorms which are, as a rule, applied with the aim of regulating relations between followers of the Islamic faith.

basis to the Muslim population in matters related to personal and familyIn the interwarstatus, inheritance, Yugoslav state, Islamic Shariʻa endowments law was applied or trust on funds, a personal and a

due to the nexus between legal and political circumstances of both a domesticnumber of and other international issues. The character. validity of Shariʻa law in this domain was The Kingdom of the Serbs, Croats, and Slovenes took on an internation-

minorities signed at Saint Germain. This was just one in a series of ob- ligationsal obligation accepted to apply by Shariʻa European law undercountries the Treatyfrom the for mid-19 the protectionth century of onwards with regard to the Muslim populations in areas where Otto-

considered part of the Islamic religion. Consequently, the application of man rule was coming to an end. Under these treaties, Shariʻa law was-

caseShariʻa of thelaw Saintto the Germain Muslims treaty of Yugoslavia on the protection was placed of withinminorities. the frame These work of the group’s specific religious rights. This was true even in the- ties, amongst whom the Muslims of Yugoslavia were now included, wereinternational the culmination guarantees of multipleof the specific political character interventions of religious as well minori as of the generally accepted principle in international relations after World

183 Fikret Karčić / Shari'a courts in Yugoslavia 1918-1941

War I that all groups that are connected nationally, culturally, or religiously with a state system that has withdrawn from or ceded a particular territory must enjoy international protection for their survival.

introduced into the domestic legal system of interwar Yugoslavia in theThe forminternational of a constitutional obligation regardingprovision applicationfor which appropriate of Shariʻa law execu was- tive legislation had then to be passed. It has been shown in this work that the persistence of the strongest bourgeois Muslim party, the Yu-

the Džemijjet, was key to realising this constitutional guarantee. goslav Muslim Organisation (JMO), followed to a certain degree by justices over the family and inheritance affairs of Muslims. This de- 2. Constitutional provisions guaranteed the jurisdiction of state Shariʻa Yugoslavia: as part of the jurisdiction of the government authorities rathertermined than the of way ecclesiastical in which Shariʻabodies. law This was was to the be sameapplied case in forinterwar members of the other recognised religions at least when it came to marital - tained within the international guarantee. This solution was accepted largelylaw. The as obligation a result of to historical establish tradition state Shariʻa carried courts over was from not the itself period con of Ottoman rule in the southern Slavic lands. The experience of the Austro-Hungarian authorities in Bosnia and Herzegovina had shown

not harm the interests of the state but rather offered ways to consol- that applying Shariʻa law to Muslims through state Shariʻa courts did citizenry. Moreover, Muslim political and religious actors saw in this idate the state’s imperium within the private sphere of the Muslim continued religious existence of that Muslim citizenry and for practi- calapproach implementation to applying of Shariʻathe provisions law their of thebest Treaty legal guaranteeon the protection for the of minorities in the most consistent way possible.

Yugoslavia were departments of the regular civil courts, but in prac- 3. ticeFrom they an administrativecomprised an pointentire of system view, the of Shariʻagovernment courts bodies in interwar independently applying a separate system of law to a limited circle of Yu- goslav citizens. In terms of their organisational structure, character, personnel, and judicial practice, these courts belonged amongst the ranks of modernised judicial institutions of a sort then beginning to come into existence in Muslim countries. Compared to the institu-

courts in Yugoslavia were the best organised. This should not be sur- prisingtions applying given the Shariʻa size of the law Muslim in other community, Balkan countries, its potential the for Shariʻa train-

184 Ch. V / The Social and Legal Consequences of Applying Shari’a Law and the Existence

encounter with European administration. ing religious officials and scholars, and its nearly half a century of-

4. Shariʻa law, as applied by the Shariʻa courts, took the form of a partic explicitly,ular civil lawboth of in the constitutional first Yugoslavia, texts givenand in that individual the legal legal authorities and oth- both recognised and accepted Shariʻa legal norms not just tacitly, but legal norms immediate validity in the civic forum and in legally stipu- lateder regulations. areas of life. The Since institution Islamic ofdoctrine state Shariʻa does not courts recognise allowed ecclesias Shariʻa- -

tical organisation or any specific consequences of legal norms’ valid inity Yugoslavia. for the ecclesiastical realm, the validity of Shariʻa law had to take on such a form if Shariʻa was to be retained as a positive form of law as expressing the well-known law in political and legal history that 5. formsThe application of law survive of Shariʻa even afterlaw in the interwar disappearance Yugoslavia of the may state be viewed within - - geoiswhich Yugoslav it first developed. state had veryIn our different case, the social, situation cultural, is the and more historical inter esting because Shariʻa law and the basic legal principles of the bour within both Islamic teachings and the structure of the legal system of interwarstarting points. Yugoslav One state finds for that the the phenomenon preconditions to emerge. nonetheless existed On the one hand, this meant the function of the state was limited through the application of a form of law given authoritatively in the sources of Islamic teaching, which opened up the possibility for applying Islamic law even in the absence of Islamic state or government institutions. On the other hand, the heterogeneity and particularism

applied within a concrete governmental and legal framework with- of the private law of interwar Yugoslavia allowed Shariʻa law to be 6. The historical legal literature tends to emphasise that giving a particu- larout national, creating religious,an exclusive or linguisticprecedent group to the special benefit guarantees of Muslims. or rights indicates that its position in a given state is not an equal one. Under such circumstances, international guarantees do give a certain legal security and offer prospects for the survival and preservation of identity. It is in this light that one should consider the international guarantee

which had not carried out full secularisation of the law and under con- ditionsfor the applicationwhere the unequal of Shariʻa position law, which of the could Muslim only populationbe realised wasin a statesim- ply a part of social reality.

185 The social, governmental and legal development of the Yugoslav state, however, followed a path in which the autonomy of one part of the population with regard to its personal or status law could last only for a limited period of time. That period overlapped with a period when the other recognised religious communities also enjoyed certain rights vis-à-vis issues of personal or status law. In a multireligious and multinational country, the coming process of secularisation would have had to be carried out even-handedly with regard to all the religious communities. Here lay the historical limita-

institution that represented a remnant of the understanding of Islam astion a modelto applying of society Shariʻa would law simplyin government have no courtsplace in in a Yugoslavia. governmental An and legal order based on the principle of absolute secularisation and of religion as a private matter for the individual.

in interwar Yugoslavia were subject to powerful political and legal crit- 7. icisms.The institution Prominent of theinterwar Shariʻa legal courts authors and the convincingly application argued of Shariʻa that lawap-

modern European state. Viewed from the additional temporal distance ofplying the present,Shariʻa law this through critical stateargument courts deserves was a legal our fullanachronism attention inand a

proves very difficult to contest. Viewed historically, however, within courtsthe legal may system reasonably of the appear,Yugoslavia in a ofcertain 1918 sense,to 1941, to havenot yet been based both on a politicalequal and and generally legal necessity, accepted and principles, they should Shariʻa be accepted law and asstate such. Shariʻa 8. Because of the range of cultural values and the protections they were given, along with their different structures and general concepts,

legal regulations in use around Yugoslavia. Due its sources and his- there was little deeper interaction between Shariʻa law and the other asked how it might contribute to enriching the legal heritage of the Yugoslavtorical roots, peoples. Shariʻa The law fact was that considered it has overwhelmingly a foreign law andtended few tohave be - ed to this, as has the mortgage of how it functioned in past ages of the historydesignated of the by Yugoslav the vague Peoples. term “religious law” has certainly contribut

theEven form long of after the thereligious state Shariʻaand moral courts principles were closed, and customs the content of the of southernsome Shariʻa Slavic legal Muslims. institutions and regulations continues to persist in References

1. Published sourcesI - Sources and official publications

Dustur

Glasnik [the zakona Imperial i naredaba Ottoman za Bosnu compendium i Hercegovinu of legal [The regulations Gazette andof Laws laws] and I, Istanbul Ordinances 1289/1872. for Bos- Sammlung der für Bosnien und Hercegovina erlassenen Gesetze, Vorordnungen und Normalwelsungen: From 1881 to 1886:nia and Zbornik Herzegovina], zakona iSarajevo naredaba 1887-1917. [Collection [From of Laws 1878 and to Ordinances]]. 1880: Majalla Ahkâm sharʻiyya [The Ottoman Civil Code] I-II, Sarajevo 1906. Priručnik zakona i naredaba za upravnu službu u Bosni i Hercegovini, sastavio J. U. Eugen Sladović plem. Sladoevički [Handbook of Laws and Ordinances for the Civil Service in Bosnia and

PropisnikHerzegovina, o načinu radacompiled kod kotarskih by J. U. Eugen šeriatskih Sladović sudova plem. i Vrhovnog Sladoevički], šeriatskog Sarajevo suda 1915. [Operational Regulations for the District Shariah Courts and the Supreme Shariah Court], hectograph, no date or place of publication. Službene novine Kraljevine Srba, Hrvata i Slovenaca

of Yugoslavia]. , [Official Gazette of the Kingdom of Serbs, Croats, and Slovenes], Belgrade 1919-1941. [1930 to 1941: Official Gazette of the Kingdom Stenografske beleške Narodne skupštine Kraljevine Srba, Hrvata i Slovenaca, [Stenographic Notes from the National Assembly of the Kingdom of Serbs, Croats, and Slovenes] I, Belgrade

Stenografske1924. beleške Privremenog narodnog predstavništva Kraljevine Srba, Hrvata i Slovenaca, [Stenographic Notes from the Provisional National Assembly of the Kingdom of Serbs, Cro-

Stenografskeats, and beleške Slovenes] Ustavotvorne V, Zagreb 1921. skupštine Kraljevine Srba, Hrvata i Slovenaca, [Stenographic Notes from the Constitutional Assembly of the Kingdom of Serbs, Croats, and Slovenes] I, Belgrade 1921. Stenografske beleške. Rad Ustavnog odbora Ustavotvorne skupstine Kraljevine Srba, Hrvata i Slove- naca, [Stenographic Notes. The Work of the Constitutional Committee of the Constitutional Assembly of the Kingdom of Serbs, Croats, and Slovenes] I-IV, Belgrade 1921.

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Ministers of Serbia 1915/1918], edited by: Dragoslav Jankovic and Bogumil Hrabak, Bel Zbirkagrade naredaba 1976. i okružnica za šeriatske sudove 1900-1944 [Collection of Ordinances and Circu- Glasnik VIS nos.

lars for the Shariah Courts 1900-1944], edited by: Abdulah Š�kaljić, Zbirka8-10/1944, naredaba za 165-172, šerijatske nos. sudove 10-12/1944, 1878-1900 186-203,, [Collection nos. of1-3/1945, Ordinances 9-26. for the Shariah Courts

1878-1900], The National Government and the Supreme Court of BiH, Sarajevo.

2. Periodicals

[The descriptions of the various newspapers, magazines, and other periodicals are cited after the information contained in their mastheads] EI-Hidaje, the paper of El-Hidaje, the organization of the Islamic clergy of the Kingdom of Yugo-

Gajretslavia, the herald in Sarajevo, of the cultural(Sarajevo), and 1940-1944. educational society Gajret, (Sarajevo), 1921-1929. Glas Crnogorca [The Voice of the Montenegrin], a current affairs and literary magazine, [Cetinje], 1912-1913. Islamski glas [The Muslim Voice], an independent cultural, educational, and informative paper, (Sarajevo), 1935-1936. Islamski svijet [The Islamic World], a publication for Muslims in the Kingdom of Yugoslavia, (Sa- rajevo), 1932-1935. Muslimanska svijest [the Muslim Conscience], a political and news informative paper, (Sarajevo),

Novo vrijeme1936-1940. [The New Times], a political and news paper, (Sarajevo), 1929-1931. Pravda

Pravni savjetnik [Justice], the publication of the Jugoslav Muslim Organisation, (Sarajevo), 1919-1929. Reforma [Reform], [The the Legal publication Counsellor], of Reforma, a daily thecircular organisation for legal ofissues, progressive (Zagreb), Muslims, 1922. a political and news paper, (Sarajevo), 1928.

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Branič,and časopis social za sciences, pravne i adržavne publication nauke of the Belgrade Law School], (Belgrade), 1920-1941. - [The Defender, Journal of Legal and Government Scienc Budućnost,es], (Belgrade), organ naprednih 1925-1941. nacionalista za rad među Muslimanima, knjizževno-nacionalni i kulturni časopis [The Future, the organ of progressive nationalists for their work with Mus- lims, a literary, national, and cultural journal], (Sarajevo), 1919-1920.

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Mjesečnikgrade/Sarajevo), Pravničkoga 1933-1945.društva u Zagrebu [The Monthly Gazette of the Law Society in Zagreb], Nova Evropa(Zagreb), 1919-1941. Novi život, [New, [New Life], Europe], (Belgrade), (Zagreb), 1923. 1921-1929. Pravna misao, časopis za pravo i sociologiju [Legal Opinion, a journal for law and sociology], (Bel-

Pravosuđe,grade), časopis 1935-1941. za sudsku praksu 1935. [Judiciary, a journal for judicial practice], (Belgrade), 1932- Savremenik, ljetopis Društva hrvatskih književnika [The Contemporary, annual of the Society of

The AmericanCroatian Journal Authors], of Comparative (Zagreb), 1940. law, (Berkeley), 1950, 1953.

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Gajret - kalendar za godinu [almanac for] 1938. Narodna uzdanica - kalendar za godinu

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PriloziHistory za orijentalnu of the Labour filologiju Movement [Contributions in Sarajevo], to Oriental (Sarajevo), Philology], VIII, 1972.(Sarajevo).

l.II Books - Literature and brochures Uređenje bosanskog ejaleta od 1789. do 1878. Godine [The Administration of the

Aličić S. Ahmed, Bosnian NašVilajet brak from i reforma 1789 tonjegova 1878], Sarajevo 1983. 1919. Andrejević A., [Marriage Here and How to Reform It], Veliki Bečkerek, Šerijatsko bračno pravo sa kratkim uvodom u izučavanje šerijatskog prava [Sha- riah marital law, with a brief introduction to the study of shariah law], Belgrade 1936. Begović Mehmed, Begovitch Mehmed, De l’Evolution du Droit Musliman en Yougoslavie, Alger 1930. Položaj žene u privatnom pravu kroz istoriju do danas through history to the present], Belgrade 1939. Božić Ana, [Women’s status in private law Porodično i nasljedno pravo muslimana [Muslim Family and Inheritance Law], Sarajevo 1926. Bušatlić hafiz Abdulah,

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2. Articles

Pravda - kalendar za 1920 Ali Riza, “Bosna ve Hersek šeriat mehakimi” [Sharia Courts in Bosnia and Herzegovina], [Justice – almanac for 1920], 39-40.Pravda A. R. (Ali Riza), “Naši šeriatski sudovi” [Our Sharia Courts], [Justice], 11. IX, 16. IX, 18. IX, 20. IX, 7. X 1919. - Glasnik VIS [Herald of the Supreme Islamic Senate], no. Avdić J. Carnil, “Problem reforme braka u vezi sa ženskim pitanjem” [The problem of marital re form and the women’s question], 9/1938, 334-346. - Azahagicthe M.territory Hamdija, of the “Primena Supreme i važnost Shariah zakona Court in»Erazi Skoplje], kanuname« Glasnik naVIS području [Herald ofVrhovnog the Supreme šeri atskog suda u Skoplju” [The ApplicationPravosuđe and Significance of the “Erazi kanuname” law, on

Islamic Senate], no. 12/1935, 537-542, [Judiciary], no. 5/1935, 380ff. - es] amongst Muslims], Gajret - kalendar za 1938 Balagija Abduselam, “Konkubinati [divlji brakovi] kod muslimana” [Concubinage [Wild Marriag [almanac for 1938], 104-111. Borderlands], Pregled Balagija Abduselam, “Poligamni brakovi u Cazinskoj krajini” [Polygamous marriages in the Cazin [Review], no. 4/1981, 467-480. Ar- hiv Bartoš Milan, “Bračna pravila pojedinih crkava” [The Marital Rules of the Various Churches], [Archive], no. 1/1934. (vol. XXVIII/XLV). - sation of the Islamic Religious Community in the Kingdom of Yugoslavia], Arhiv [Archive], Begović Mehmed, “Organizacija Islamske verske zajednice u Kraljevini Jugoslaviji” [The Organi

no. 5/1933. (vol. XXVII/XLIV), 375-387. Moslemische Reveue Begović Mehmed, “Die Anwendung des Scheriatrechtes in den Balkan staaten”, [Berlin], no. 3-4/1935, 54-60. - lim family law in Egypt], Arhiv [Archive], no. 611935. [vol. XXXI/XLVIII], 553-560. Begović Mehmed, “O reformama porodičnog prava muslimana u Egiptu” [On reforms of the Mus Pravna misao Begović Mehmed, “O emancipaciji muslimanke” [On the emancipation of Muslim women], [Legal Thought], nos. 11-12/1936, 236-254. Arhiv [Archive], nos. 5-6/1939. [vol. XXXVIII/LV], Begović Mehmed, “Može li prelaz na Islam poslužiti kao uzrok za razvod braka” [Is conversion to Islam sufficient grounds for divorce?], 1-4. Courts Spiritual], Branič [The Defender], no. 6/1935, 295-300. Belić Matija, “Advokatsko zastupanje pred duhovnim sudovima” [Legal Representation at the [Some remarks on the jurisdiction over contracting the mixed marriages of converts to Is- Bušatlićlam], Abdulah, Arhiv “Nešto o nadležnosti za sklapanje mješovitihMjesečnik brakova [Monthly],pomuslimanjenih no. 1/1923, lica” 22-26. [Archive], no. 6/1923 [vol. V/XXIJ], 458-46, - sti” [Should 20 or 21 be the age of majority?], Arhiv [Archive], no. 1/1925. (vol. XI/XXVIII), Bušatlić Abdulah, “Da Ii je dosta 20 godina ili je potrebno 21 godina života za proglas punoljetno

60-64. Gajret, 1926, 9-11. Bušatlić Abdulah, “Muslimanski mješoviti brak” [Mixed Muslim Marriages], 192 References

- Bušatlićriages Abdulah, inherit “U from pravno their nevaljanom fathers, but braku their rođena wives [mothers] djeca nasljeduju do not svoga[court oca, chronicles]], a njegova Arhiv žena [Archive],(njihova majka) no. 1-2/1926, ne nasljeđuje (vol. XIII/XXX), ga (sudska 129-131. hronika)” [Children born to legally invalid mar

hronika)” [Disputes over kinship and inheritance under Shariah court procedure [court Bušatlićchronicles]], Abdulah, Arhiv “Sporovi o srodstvu i nasledstvu po šeriatsko-sudskom postupku (sudska

[Archive], no. 5/1927. (vol. XV/XXXII), 416-419. - Bušatlić Abdulah, “Pravni položaj supruge u bračnom, imovinskom i nasljednom pravu”, (korefer zaat IIIna Glavnutemu »Pravni skupštinu…)” položaj [The supruge Legal u Status bračnom, of the imovinskom Spouse in marital, i nasljednom property, pravu« and inheri na III- Glavnoj skupštini Kongresa pravnika Kraljevine SHS u Sarajevu 23-25. IX 1927. Spomenica inheritance law” at the Third Central Assembly of the Congress of Lawyers of the Kingdom tance law, [a joint presentation on “The Legal Status of the Spouse in marital, property, and

of Serbs, Croats, and Slovenes in Sarajevo, 23-25 September, 1927, Proceedings of the Third Central Assembly…]], Zagreb 1927, 194-198. Gajret Bušatlić Abdulah, “Š�erijatski sudovi” [The Shariah Courts], , 1928, 155-157. - BušatlićBosnia Abdulah, and Herzegovina “Nadležnost over šerijatskih the legal sudova affairs uof Bosni religious i Hercegovini endowments], u vakufskim Mjesečnik , (zano. dužbinskim, zakladnim) pravnim poslovima” [The Jurisdiction of the Shariah Courts in

4/1929, 169-173. Gajret Bušatlić Abdulah, “Novi krivični zakonik i višeženstvo” [The New Criminal Code and Polygamy], , 1930, 3-4. Applicability of Legal Sanction in the Contracting of Marriage], Gajret 1930, 268. Bušatlić Abdulah, “Pitanje kažnjivosti ili nekažnjivosti u sklapanju braka” [The Question of the - Bušatlić Abdulah, “Razvod braka u slučaju muževe neimaštine, siromaštva i nesposobnosti za wifeuzdržavanje – an important svoje žene circular - značajna of the Supreme okružnica Shariah Vrhovnog Court šerijatskog in Sarajevo], suda Gajret u Sarajevu”, 1930, 38-39. [Di vorce in the case of the husband’s impecuniousness, poverty, and inability to maintain his

Bušatlić Abdulah, “Nadležnost sreskih šerijatskih sudova na području Vrhovnog suda u Sarajevu ofza theovjeravanje Supreme potpisa Court in [rukoznaka] Sarajevo], Pravosuđe muslimana na ispravama” [The District Shariah Courts’ jurisdiction for the certification of Muslim signatures on official documents on the territory [Judiciary], no. 9/1932, 527-528. - - Bušatlićment-related Abdulah, “Iz cases], šerijatko-sudske Glasnik VIS prakse - Sudska nadležnost u izvjesnim vakufskim spor ovima” [From Shariah Court practice – The Courts’ jurisdiction over specific endow , no. 1/1934, 20-27. Hikjmet Chameran, “Nas krivični zakon i islamsko višeženstvo” [Our Civil Code and Muslim Polygamy], , no. 12/1930, 383-387. DeganRegulation Vladimir-Đuro, of the “Međunarodnopravno Status of Muslims, with uređenje a view položaja to settling Muslimana the status sa of osvrtom other religious na uređenje and nationalpoložaja groupsdrugih vjerskihon the territory i narodnosnih of Yugoslavia], skupina naPrilozi području Instituta Jugoslavije” za istoriju [International radničkog pokreta Legal u Sarajevu [Contributions of the Institute for the History of the Labour Movement in Saraje-

vo], 8., 1972, 55-105. - EisnerShariah Bertold, law], “Nadležnost Arhiv u porodičnim i naslednim stvarima muslimana i primjena šerijatsk og prava” [Jurisdiction over Muslim family and inheritance affairs and the application of [Archive], no. 3/1922. (vol. V/XXII), 145-149, no. 4/1922, 230ff. Eisner Bertold, “Privatno-pravni položaj žene po današnjem pravu Jugoslavije i njegovo uređenje Spomenicau jedinstvenom Mauroviću Građanskom zakoniku za Jugoslaviju” [The Status of Women in private law under current Yugoslav law and its organization in a unified Civil Code for Yugoslavia], , l, Belgrade 1934, 327-419. 193 References

- mon Civil Code], Pravosuđe Eisner Bertold, “Š�erijatsko pravo i naš jedinstveni građanski zakonik” [Shariah law and our com [Judiciary], no. 6/1936,Annales 1-16. de la Faculte de Droit d’Istanbul, no. Fragistas Ch. N., “Le droit musulman en Grece”, 4/1954, 129-141. - sional marital law in the Kingdom of Serbs, Croats and Slovenes], Mjesečnik Galić Z. Ivan, “Interkonfesijsko bračno pravo u kraljevini Srba, Hrvata i Slovenaca” [Inter-confes , no. 6-7/1921, 268-277. - Glasnik VIS, no. 9-10/1963, Hadžibajrić Fejzulah, “Murteza-efendija Karađuzović muftija crnogorskih muslimana” [Murte za-effendi Karađuzović, Mufti of the Montenegrin Muslims], 393-400. divorce proceedings in front of the Shariah courts], Narodna uzdanica - kalendar za 1945 Hadžić Kasim, “Za usporavanje brakorazvodnog postupka pred šeriatskim sudovima” [Disputing

[The Popular Hope – almanac for 1945], 97-140. - ding price [mehra]], El-Hidaje Hadžić Kasim, “Predmet i visina vjenčanoga duga [mehra]” [The medium and level of the wed , no. 7-8/1945, 260-264. - Prilozi za orijentalnu filologiju [Contributions to HadžijahićOriental Muhamed, Philology], “Bračne XXXI/1982, ustanove 155-168. bosanskih Muslimana prije 1946” [The Marital Institu tions of Bosnian Muslims before 1946], for determining when the Arabic month falls?], El-Hidaje Handžić Mehmed, “U ciju nadležnost spada određivanje arapskih mjeseci” [Who is responsible , no. 9/1938, 137-138.Prilozi za orijentalnu filologiju Imamović Mustafa, “Islamski koncept države” [The Islamic Concept of the State], [Contributions to Oriental Philology], XXIV/1974, 165-177. - mana”, posebna izdanja ANU BiH, vol. 5, Naučni skup Književnost BIH i svijetlu dosadašnjih Imamovićistraživanja, Mustafa, [Maximilian “Maximilian Braun Braun on o počecima the beginnings evropeizacije of Europeanisation u književnosti in bosanskih Bosnian Muslim Musli literature, Special publications of the Academy of Arts and Sciences of Bosnia and Herze- govina, vol. 5, Academic Group The Literature of BiH in the light of current research], Sara-

jevo 1978, 99-115. Arhiv [Archive], no. “Iz muslimanskog zakonodavstva - Č�ovek i žena” (priredili Ž�. M. Lukić - A. Bušatlić) [From Muslim Legislation – Husband and Wife [edited by Ž�. M. Lukić - A. Bušatlić]], 4/1925. [vol. XI/XXVIII], 303-308. Gajret

“Iz šerijatske sudske prase” (zabilježio A. Bušatlić) [Fromth Shariah court practice [commented upon by A. Bušatlić]], , 1927, 316--317. C. Ottoman Kayseri”, Studia islamica Jennings C. Ronald, “Kadi, Court and Legal Procedure in 17 (Paris), XLVIII/1978, 133-172. - KarađuzovicShariah M., Courts], “Crnogorski Glas Cmogorca i bosansko-hercegovački muslimani i nadležnost šerijatskih sudo IIva”, 1912), [The Montenegrinno. 6 (11. II 1912), and Bosnian no. 10 (10. and IIIHerzegovinian 1912). Muslims and the Jurisdiction of the [The Voice of the Montenegrin] no. 4 (31. I 1912), no. 5 (4. - gress of Muslim Intellectuals in Sarajevo], Prilozi Instituta za istoriju [Contributions of the Kemura Ibrahim, “Kongres Muslimana intelektualaca u Sarajevu 1928. Godine” [The 1928 Con

Institute for History], 17 (1980), 175-189. Pravosuđe Lesić Ivo,3/1932, “O postupku 163-166. overavanja na području Vrhovnog suda u Sarajevu” [On the procedure for certification on the territory of the Supreme Court in Sarajevo], [Judiciary], no. The American Journal of Comparative law Liebesny J. Herbert, “Religious Law and Westernization in the Moslem Near East”. no. 4/1953, 492-504. perspective], Glasnik VIS Ljutvić Ibrahim, “Promjena konfesije s bračnog gledista” [Religious conversion from the marital , no. 10/1939, 379-381.

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1946, 76-80. dana” [A review of work of the corporate organisation of the Shariah justices from their Š�kaljićestablishment Abdulah, “Osvrt to the na present],rad staleške El-Hidaje organizacije šeriatskih sudaca od osnutka do današnjih

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- On March 5, 1946, the authorities of socialist Yugoslavia abolished the Shariʻa courts in Bosnia and Herzegovina. This watershed mo

Fikret Karčić

ISBN 978-9926-471-07-1 ISBN 978-9958-23-524-5 INSHARIʻA YUGOSLAVIA COURTS 1918-1941