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Ottoman Fatwa ^ УЗЛ ^ Ottoman Fatwa ^ An Essay on Legal Consultation in the Ottoman Empire By Ali Yaycioglu A THESIS PRESENTED TO THE INSTITUTE OF ECONOMIC AND SOCIAL SCIENCES IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF HISl’OR Y BILKENT UNIVERSITY AUGUST, 1997 V 3 Î) 1 5 5 4 'g.()383l0 I certify that I have read this thesis and in my opinion it is fully adequate, in scope and quality, as a thesis for the degree o f master of history. Thesis supervisor Prof Dr. Halil İnalcık I certify that I have read this thesis and in my opinion it is fully adequate, in scope and quality, as a thesis for the degree of master of history. Dr. Akşin Somel 1 certify that 1 have read this thesis and in my opinion it is fully adequate, in scope and quality, as a thesis for the degree o f master of history. Dr. Mehmet Kalpaklı Approved by the Institute of Economics and Social Sciences. Prof Dr. Ali Karaosmanoglu ABSTRACT Legal consultation {/fla) is one important legal institution in Islamic legal culture since the consolidation of the Islamic law. In the Ottoman empire legal consultation was carried out by the chief mufti and the appointed provincial muftis. The provincial muftis were academic figures; most of them performed teaching in the respected colleges and legal consultation at the same time. The main functions of the provincial muftis were to issue fatwas for the private applications of the people of their loealities and sometimes to give legal opinions to the kadis for complex problem as legal experts. In the capital of the Ottoman empire, the legal consultation for the private applications was carried out by a bureau, fetvahane, subordinated to the chief mufti. The fatwa department issued fatwa signed by the chief mufti for the petitioners to be presented in their lawsuits. The fatwa department had bureaucratic characteristics in the process of fatwa-issuance. In the fatwa-issuance, the main function of the fatwa department was to construct appropriate queries fitting the legal problem exposed by the petitioner. The fatwa had an important role in the court procedure, with other legal instruments. Most of the time the fatwa was presented by the litigants to support their claim, theoretically. The main function of the fatwa was to sugge.st appropriate adjudication for the kadi in the litigation at hand. In the court registers it appeared that the litigant holding a fatwa most often won the suit. n ÖZET ^ İslam tarihi boyunca hukuki konsültasyon anlamına gelen iftâ’, özellikle İslam hukukunun konsalidasyonuyla beraber, İslam hukuk kültüründe önemli bir yer işgal etmeye başladı. Osmanlı İmparatorluğunda iftâ’ kurumu şeyhülislamlar ve kenar müftüleri ile yürütülmekteydi. Kenar müftüleri çoğu zaman akademik şahsiyetlerdi ve müftülüğün yanı sıra saygın medreselerde müderrislik yapmaktaydılar. Müftü olarak en önemli görevleri kendi bölgelerinde yaşayan insanların dini ve hukuki sorulanna yönelik fetva vermek, bazen ise kadıya kimi davalarda bir hukuk uzmanı olarak yol göstermekti. İmparatorluğun merkezinde ise, insanların hukuki ve dini konulardaki sorularına yönelik fetva vermek için şeyhülislam’a bağlı bir büro kurulmuştu. Fetvahane adındaki bu büroda şeyhülislamların imzasına sunulan fetvalar yayımlanırdı. Fetvahanenin fetva tanzimi ve tebliM bürokratik özellikler taşımaktaydı. Fetvahanenin temel işlevi fetva almak için başvurusunu yapan kimsenin sorusunu uygun bir hukuki üslub ile yeniden kurgulamak ve şeyhülislam’m imzasına sunmaktı. Fetvanın Osmanlı mahkemesinde önemli bir işlevi olduğu analşılıyor. Çoğu zaman davalı ya da davacı elindeki fetva ile iddi‘asına teorik bir destek sağlamak amacını gütmekteydi. Kadılar için ise fetva, önlerindeki davada nasıl hükm vermeleri gerektiğini gösteren bir hukuki metin niteliğindeydi. Osmanlı kadı sicillerinde fetva ibraz eden tarafın çoğu zaman davayı kazandığı gözükmektedir. III '^tthâfıye Babaannem Münire ve Dedem Abdullah Yaycıöglu’nun aziz hatıralanna ithafen... To the memoTİes o f Münire and Abdullah Yaycıoğlu. rv •d> Acknowledgments ^ I am deeply grateful to scores of individuals throughout my graduate years as a student of Ottoman history. I would like to thank, first and foremost, my hoca and supervisor Professor Halil İnalcık, who taught me Ottoman history for three years and will teach in all my academic life. I am also grateful his encouraging me to study history of Ottoman legal culture. I am deeply indebted to Professor özer Ergenç who taught me how to read and understand Ottoman sources, particularly court registers. I am grateful to Akşin Somel for his guidance, dervish style, and support during my studies at Bilkent. I would specially like to thank Professor Wael Hallaq who has introduced me Islamic law and personally encourage me to jump into the onerous sea of historical-legal studies. I am grateful to Professor Cemal Kafadar who always opens my horizons during my inexperienced journeys through Ottoman history. Special debts are owed to Professor Seçil Akgün who pushed me to shift history from a different discipline three years ago and to Professor Oner Turgay who provided the opportunity to study in the institute of Islamic Studies at McGill. I would like to thank my teachers Engin Akarli, Halil Berktay, Issa Boullata, Cornell Fleischer, Adam Gacek, Nejdet Gök, Mehmet Kalpaklı, Uygur Kocabaşoğlu, İlber Ortaylı, Eyüb özveren, Eric Ormsby, İsenbige Togan and my friends Eftal Batmaz, Ahmet Demir, Hülya Canbakal, İklil Erefe, Emre Kayhan, Ertuğrul ökten. Şefik Peksevgen, Türker Yöndcm for their guidance and support throughout my studies. I would like to specially acknowledge my debt to my mother and father Rezzan and Alaettin Yaycioglu for their endless support and patience. And dear iklil Erefe knows well that this work would not exist without her. ^CONTENTS ^ Abstract II Özet III Acknowledgment V Table of Contents VI Note on Transliteration VII List of Abbreviations and Primary Sources VIII List of Pictures XIII ^Introduction·. Ifta’ in the Legal Culture 1 ^ Chapter!'. The Making of MuftT in the Ottoman Empire 14 1.1 Some characteristics of the Ottoman scholarship and learned hierarchy in the I6‘** and 17*'' cent. 14 1.2. The chief mufti 22 1.3. Provincial muftis 28 1.4. Conclusion 38 ^ Chapter II. The Making of the Fatwi in the Ottoman Legal Culture 41 2.1. Bureaucratization of Fatwa Making: Fetvahane 42 2.2. Ebussu'^ûd’s instruction for fatwi-making 52 2.3. Textual Components and visual image of the Ottoman Fatwi 58 2.4. Language and Legal Terminology in the Ottoman Fatwa 82 2.5. Fatwa Compilations 88 2.6. Conclusion 100 ^ Chapter III. Fatwa in the Ottoman Court 103 3.1. Fatwas in the court registers 104 3.2. Fatwa in the court procedure 110 3.3. Kadis, Muftis and the Sultan: the enforceability of the fatwa 132 3.4. Conclusion 142 ^ Conclusion 143 Bibliography 146 Pictures 166 VI Note on transliteration ^ Transliteration is the surviving problem of historical scholarship in Islamic studies. In this paper the reader will came across with a double-usage of the Arabic and Ottoman transliteration systems in different contexts. The technical terms of Islamic law which have the same meaning both in Arabic and Ottoman contexts (fatwa, mufti...) are transliterated according to from-Arabic-to-English transliteration system suggested by Intemaltional Journal o f Middle Eastern Studies. In the Ottoman contexts, for the thechnical terms and names in Ottoman-Turkish, I have preferred to employ the transliteration system for the Ottoman Language suggested by E. Bimbaum (“The Transliteration of Ottoman-Turkish for Library and General Process” Journal o f the American Oriental Society, vol. 87 (1967): 122-156). Words that appear in English dictionaries (sultan, kadi) are not transliterated unless they appear as a part of an individual’s name. VU List of Abbreviations Ankara siciJA Ankara court registers housed in National Library, Ankara. “^Ata’I: Hada *ik ul-haka ’ik fT tekim let iş-şaka ’ik I stanbul, 1268; al-'^Ayntabi: Muhammad FiqhT al-'^Ayntâbî. RJsâlab fi Adâb al-muâL Ms: Library of Dil, Tarih ve Coğrafya Fakültesi, Ankara, İsmail Saib 757. Barkan, Ö. L.(1943): XV. ve KVhncı Asıslarda Osmanlı İmparatorluğunda Zirai Ekonominin Hukuki ve Mali Esasları, Vol. 1: Kanunlar, \sXQ.rki\x\, 1943. Behcet ül-Fetava·. Yenişehirli ‘^Abdullah Efendi (d. 1156/1743^). Behcet ül- Fetâvâ. İstanbul, 1266/1849. Brockelmann: Brockelmann, C. Geschichte der arabischen Literatur, 2 vols. Leiden, 1943-9; Supplement, 3 vols. Leiden, 1937- 42. DlA\ Diyanet İslam Ansiklopedisi. Istanbul, 1990- Dede Cöngi: Kemalüddin İbrahim b. Bahşi. Siyaset-i Şefiyye Tercümesi Ms: Istanbul Müftülüğü Kütüphânesi, no. 2226, f. lb-41a. vm Düzdağ: Şeyhülislâm Ebussıuıd Efendi Fetvaları Işığında 16. Asır Türk Hayatı, ed. M. E. Düzdağ, İstanbul, 1983. Ebussu^^ud,Ebussu'^ud el-‘^İmadı. Fetva-yı Şerife. Ms: Süleymaniye Kütüphanesi, Reşid Efendi, no. 1036, f. 33b-37a. E I‘: The Encyclopaedia o f İslam, T’ed. Leiden, 1913-38. EH: The Encyclopaedia o f Islam, 2"" ed. Leiden, 1954 Fetava-yı^'AtauIlahEfendiMinkarızade Yahya Efendi, Fetava-yı ‘AtauUah Efendi. Ms: McGill University Islamic Studies Library, Ms: 56, 169. Fetâvâ-yı Ebussif üd. Ebussu'^üd el-'^îmidT. Fetâvâ-yı Ebussdud. Ms: Süleymaniye Kütüphanesi, Yeni Cami 624. Fetava-yı Feyziyye. Seyyid Feyzullah Efendi, (d. 1115/1703). Fetvava-yı Feyziyye. İstanbul, 1266/1845-50. Fetava-yı Yapıştırın s. Fetava-yı yapıştırma. [An album of original fatwas from various muftis] Ms: Süleymaniye Kütüphanesi, Fatih 2419. Fetva Eminlerine Tenbıler: Ebussu'^ud Efendi. Fetva Eminlerine Tenbıhler. Ms: Süleymaniye Kütüphanesi. Hacı Beşir Ağa 656: f. 240a-b; Hezarfenn: Hüseyin Hezarfenn. Telhis ül-beyan fi kavanın-i A fi ‘^Osmân. Ms: Bibliothèque Nationale, Paris, MS. A.f turc 40. IX Hirz ül-müluk: Hirzü’l-müluk, in Osmanlı Devlet Teşkilatına Dair Kaynaklar, ed. Y. Yücel, Ankara: TTK, 1988: 145-207. Horster. Horsier, Paul, (edition and introduction). Zur Anxendim g des Islamischen Rechts im 16. Jahrundert: Die Juristichen Derlegungen (Ma‘rüzät) Des Schejch ü’Islam Ebü Su‘üd (gest. 1574) Herausgegeben, übersetzt und Untersucht.
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