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.
EI‘: 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. Stuttgart, 1937. al-jidi: al-Jidi '^Umar. Muhadarat fi Tan kh al-madhhab al-Maliki. Rabat, 1987. lA. İslâm Ansiklopedisi. Istanbul, 1940-
Ibn Khaldun: Ibn Khaldun. The Muqaddimah, trans. F. Rosenthal, 2'“^ ed. Princeton, NJ, 1967.
Ibn al-Salah: Taqi al-Din “^Urnar b. “^Uthman ibn Salah. Fatawa wa masä’il Ibn Salâh, ed. ‘^Abd al-Mu*^!? Qa^aji. 2 vols. Beirut, 1986.
IJMES. International Journal o f Middle Eastern Studies.
‘^îlmiyye Salnamesi. C Ilmiyyef, Salnamesi. İstanbul, 1334/1916.
Kashfal-zımün: Kâtib Çelebi. Kashf al-zımün. ed. Şerafeddin Yaltakaya
and Kilisli Rifat Bilge, 2 vols. İstanbul, 1941,1943.
Mecdı: Mecdı, Edimevı. HadaTk üş-şakaTk. İstanbul, 1269. Mizan ul-hakk. Kâtib Çq\q\â . Mızanu’I-hakk iTihtiyaril-ahakkAsizíñhvX,
1280/1863.
Miütaqa: al-Halabl İbrahim. Multaqa al-abhur^ Bulaq 1265/1848-49.
Mühimme Defterleri (MD): Ms: Prime Minister Archives, Istanbul.
al-Nawawi, A dak Adab ai-fatwa wa*l-muftt wa’l-mustafU, ed. Bassam al- Jänl, 2“^* ed., Beirut, 1990. al-Nawawi, Majmif·. al-Nawawi, Yahya b. Muhyi al-Din. al-MaJmif: Shark al- Mühadhdhab. 12 vols. Cairo, 1925. d’Qhsson: I. Mouradgea d’Ohsson. Tableau général de TEmpire ottoman. 3 vols. Paris, 1787-1820.
‘ OsmanlI m ü’ellifleri: Mehmed Tahir Bursali. ‘Osmanli M ü’ellifieri. 3 vols. Istanbul, 1333.
al-Ramfi: al-Ramfi, Khayr al-Din. al-Fatawa al-Khairiyya li-N af al- Bariyya. Beirut, 1974.
Raşİd: Raşİd Efendi. Raşid Tarihi. Istanbul, 1284/1867-8.
Selle: Selle, Fredrich. (edition, translation and introduction). Prozessrecht des 16. jharhunderts im Osmanischen Reich auf Grund von Fetwas der Scheichülislam Ebiissuud und anderer unter der Regierung des Sultans Suleyman des
Prächtigen. Wiesbaden, 1962.
XI Siciîl-i ‘^OsmanT: Mehmed Süreyya. SiciIl-i Osmani: Osmanh ünlüleri, ed. N. Akbayar İstanbul. 1996-7. (First ed. 1308/1890-1)
Şerh-i Multakar. Mevkufatı, Muhammad, Şerh-i MuItaka’a^I-ebhur. Ms:
McGill University Islamic Studies Library, Ms: 132.
Şeyhi: Mehmed Şeyhi Efendi. Vakâ’f ül-fuzelâ\ 2 vols. Ed. Abdülkadir özcan. in Şakaik-ı N u’maniye ve Zeyilleri·. 21'^
and 4*** vols.: Vekayiü’l-fudalâ. İstanbul, 1989. A
Taşköprızade: *^Işâmüddrn Ahmed b. Muştala b. Hâlid known as Taşköpnzâde (d. 968/1561). Sbaqa’iq al-nıfmâniyya fi
^ulama’al-dawlat al-‘Uthmâniyya, Bulak, 1299.
xn LIST OF PICTURES
Picture 1 {^.\61)’film iyyeSalnamesi, p. 360 Picture 2 ilw iyyeSalnamesi, p. 365 Picture 3 (pA69):^flmiyyeSalnamesi, p. 368 Picture 4 (p. llOyfilmiyye Salnamesi, p. 394 Picture 5 (p.l71 yfİlmiyyeSalnamesi, p. 378 Picture 6 (p. 172 ): *"İlmiyye Salnamesi, p. 394 Picture 7 (p.l7 2>yAİlmiyye Salnamesi, p. 380 Picture 8 {yiAl^yAilmiyye Salnamesi, p. 358 Picture 9 (p. 175 y^llmiyye Salnamesi, p. 324 Picture 10 (i^A16yilmiyye Salnamesi, p. 338 Picture 11 (p. 177):Anonymous Fetva mecmıİası in Eftal Batmaz’s private library. Picture 12 (p. 178 ):Anonymous Fetvimecmifasi in Eftal Batmaz’s private library. Picture 13 (p. 179 ): Haram collection in Donald Little’s library at McGill University, no. 597. Picture 14 (p.l80 ): jljaram collection in Donald Little’s library at McGill University, no. 701. Picture 15 (p.181 ): Haram collection in Donald Little’s library at McGill University, no. 675. Picture 16 (p.l82 ): flaram collection in Donald Little’s library at McGill University, no. 45. Picture 17 (p.l83 ): "'Ilmiyye Salnamesi Picture 18 (p.l84 ): Fetvavâ-yı"^Atâ'ullâb, Picture 19 (p. 185 ): Anonymous Fetva Mecmifasi, in Eftal Batmaz private library. Picture 20 (p.l86 ): Anonymous Fetva Mecmffast, in Eftal Batmaz private library. Picture 21 (p.l87 ): ^İlmiyye Salnamesi Picture 22 (p.l88 ): Anonymous Fetva Mecmifasi, in Eftal Batmaz private Ubrary. Pictiue 23 (p.l89 ): Fetâvâ-yı Ebussif üd. Picture 24 (p. 190 ): Anonymous Fetva Mecmifasi, in Eftal Batmaz private library. Picture 25 (p.l91 ): Anonymous Fetva Mecmifasi, in Eftal Batmaz private library. Picture 26 (p. 192 ): Fetvâvâ-yı ^Atâ*ullâb. Picture 27 (p.l93 ); Anonymous Fetvi Mecmifasi, in Eftal Batmaz private library. Picture 28 (p. 194 ): Anonymous Fetvi Mecmifasi, in Eftal Batmaz private library. Picture 29 (p.l95 ): Anonymous Fetvi Mecmuası, in Eftal Batmaz private library. Picture 30 (p.l96 ):Ankara, sicilh 2/749 Picture 31 (p. 197 ):Ankara, sicili, U169 Picture 32 (p.l98: Ankara, sicili 1/1080
XIII Picture 33 (p.l99): Ankara, sicilh 1/109 Picture 34 (p.200: Ankara, sidlh HIM (Transcription) Picture 35 (p.20l): Ankara, sicilt 2/226 Picture 36 (p.202): Ankara, sicilt 2/470 Picture 37 (p.203): Ankara, sicilt H M l Picture 38 (p.204): Ankara, sicilt 2/21 Picture 39 (p.205): Ankara, sicilt 2/1173 Picture 40 (p.206): Ankara, sicilt 8/313 (Transcription) Picture 41 (p.207 ): Ankara, sicilt 2/1110 Picture 42 (p.208): Ankara, sicilt 1/92 Picture 43 (p.209): Ankara, sicilt 2/1702 Picture 44 (p.210): Ankara, sicilt 8/beginning Picture 45 (p.211); Ankara, sicilt 2/1298 Picture 46 (p.212 ): Ankara, sicilt 2/739 Picture 47 (p.213 ); Ankara, sicilt 1/105 Picture 48 (p.214 ): Ankara, sicilt 2/476 Picture 49 (p.215 ): Ankara, sicilt 1/ 255 Picture 50 (p.216 ): Ankara, sicilt 2/746 Picture 51 (p.217 ): Ankara, sicilt 2/1741 Picture 52 (p.218 ): Ankara, sicilt It 695 Picture 53 (p.219 ): Ankara, sicilt 2/754
XIV Introduction iftâ’ İn Islamic legal culture
“Ask the people o f the Book, i f you know not ” The Koran, 16/43
n Islamic legal culture legal consultation was performed by the jurist who issued a Ilegal opinion in order to find the appropriate judgment for a particular problem asked by an individual. In Islamic terminology the performance of the legal consultation is called iü â ’ ) or futya the opinion issued is fatwa the person requesting a fatw i is m ust aft the person who issues a fatwa is m u ftr{ ,J ^ ) and the literature about the principles regulating the relationship between the mufti and the m ustaftl is called âdâb al-mufti
In Islamic law, since there was no legislative power in principle, the prescriptions of law were to be discovered from the textual sources, the Koran and the prophetic traditions {Sunna). The scripture and the Prophetic traditions, however, do not specify the laws, but only prescribe some rulings {ahkâm, pi. hukni) and indications
{dalâüt or amârât)} Under the light of these rulings and indications, the jurist
{mujtahid), by analogy (giyas) and by regarding the consensus {ijm S^, tried to discover the determination of a particular case at hand {ijtibâd). If a similar case, however, had
' Hallaq. (1984); 4. been precedented (/&/; pi. furü^ by a great jurist before, then, this previous adjudication was to be followed {taqiTd) by the later jurists {muqallid).
Ifta’ is carried out within this jurisprudential archetype of the Islamic law. The iñ i’ performance was initiated by a questioner asking a legal or moral problem to the
muñí. The muñí investigated the problem under his interpretations of the abstract rulings of primary sources {ijtihäd) or under the adjudication of the earlier jurists for
similar problems {iaqlfd)? Employing the jurisprudential tools, ijtihäd aná taqlrd the muftT suggested an appropriate ruling for the problem.
There were important differences between the judiciary (qadä^ and the legal consultation {iñá^. Although both were interpretive performances of a legal problem with jurisprudential tools, while the judgment of the kadi {hukm al-qadt) was binding, fatwa was merely an informative interpretation of the case. The task of the mufti was
not to execute a trial for a particular case and judge it, but only to analyze the legal problematic asked by the questioner and suggest a ruling for it. Professor Messick puts
forward;
For a mufti’s questioner, obtaining a fatwa is an ‘’informational” step, taken either to regulate the individuals, not in adersial pairs; posing a question to a mufti and receiving is response is not a judicial procedure like that in a judge’s court. Without being binding yet authoritatively, a fatwa simply provides the fatwa seeker with a legal rule relevant to the matter in question.“*
^ Ibid: 4-5. ^ Reinhart. “(1993); 7. “* Messick. (1986): 103. Although both the judgment and the fatwa, were based upon the problems of social reality, instead of hypothetical interpretations, while the judgment was given for only a particular case at hand, the fatwa reflected a general abstract ruling for any case which has the comparable legal problematic with the one exposed in the fatwa. In
Pofessor Hallaq’s words:
...the fatwa was not merely an ephemeral legal opinion or legal advice to a person for immediate and mundane purposes but also an authoritative statement of the law that was considered to transcend the individual case and its mundane reality.* *
While the ifta’ encompasses all aspects of Shari'^a, not only the legalistic concerns but also moral dealings and matters about religious observances, the judiciary was limited with the legalistic issues. Ifla’ could be pertaining to any problem of people in- public and private life, whereas the judgment is restricted within the public sphere.^
Finally, while the judiciary was supervised and monopolized by the government delegating the judges (kadi), to perform ifta’ there was no need for any official or formal certification. It was rather a thoroughly religio-academic performance whose requirements were associated with academic capability and truthfulness.^
The roots of ifta’ appeared with the demise of the Prophet and the termination of revelation. In the absence of the Prophet, God no longer would communicate with the believers through his messenger. The Muslims found themselves apart from the voice of
God and the guidance of Muhammad. His Companions, after the demise of the Prophet,
*Hallaq.(I993): 34. *Reinhard.(1993): 14-16. ’ Powers. (1993): 92-93. were considered as the ones who could best prescribe the rules of Islam. These
Companions, by the later sources, were envisioned as the first muftis who inherited the lawmaking function in the absence of the prophet.
As the generations passed away, the Muslims gradually cut off from the guidance of the Companions. Nevertheless gradually some literate Muslims i^ulam a^ appeared to dedicate their life to the safekeeping and examination of Islamic knowledge Uni) in different centers of Islamic world, Mecca, Medina, Damascus, the Yemen... These scholars, who were the early muftis, gradually became intellectual figures whom
Muslims directed their questions about the proper Islamic behaviors and problems occurring in their everyday life. ^
With the anthologizing of the corpus of prophetic traditions {hadJtU) by the third/ninth century, the basic characteristics of Islamic jurisprudence was formulated and synthesized by the industrious performance of the private jurists.*® The science of jurisprudence progressively transformed from a predominantly oral and socially diffuse
informal process towards a complex literary discipline.*' The ‘^ulama’ professionalized and legal science became much more expurgated and systematized. In this period basic schools of law {madhhab) had shaped and the scholars came to issue fatwas for the questioners in the framework of their schools’ methodological and substantive
* Ibid: 86-7; Masud, Powers and Messick. (1996): 6-7. ’ Schacht. (1950): 190-213; idem.(1964):29-36; Tyan. (1960): 83-90; Masud, Powers and Messick. (1996): 7-8. Schacht. (1950): 321; idem. (1964): 57-68; Anderson. (1957): 15, 18-21. " Calder. (1993): 165. 1 9 indoctrination. With the consolidation of the authoritative texts of the legal schools in jurisprudential methodology {usul) and substantive law {m utun)^ gradually the fatwas of the famous jurists came to be compiled by their followers.'“* Each compilation was identified with a particular legal school.'*’ Successively, the professional qualities, skills and moral standards of the jurisconsulship in different legal schools were constituted.'^
With the emergence of the fatwa compilations as a distinct genre in legal literature, legal consultation began to play an important role in the judiciary.'^ The legal doctrines, most of the time, encouraged the kadis to consult with the legal experts before issuing their decisions, especially in complex, peculiar and intricate cases. The fatwa compilations were very practical legal handbooks, in the form of responsa, for the kadis in the judiciary performance. Unlike the theoretical and hypothetical character of the law manuals, the fatwa compilations offered a number of legal opinions for the
18 problems that might take place in everyday life.
The muftlship emerged as a informal occupation of the civil society, as a self- governing practice autonomous from the political authority.W hoever had adequate
'' Jackson. (1996): 73-81; Makdisi, G. (1984): idem. (1985). Wheeler. (1996). ''' Hallaq. (1994). Masud, Powers and Messick. (1996): 10-11. The most comprehensive studies on ddab al-muitr literature see: Masud. (1984); Calder. (1996); Jackson. (1992). See also al-'Ayntabi and al-Nawawi, adab. Masud, Powers and Messick. (1996): 10. Johansen. (1993a): 32. ” Schacht. (1964): 74; Makdisi, G. (1981): 199; (1984): 236; idem. (1985): 86-7; idem. (1990b): 130; Goitein. (1968): 211; Calder. (1993): 165; Jackson. (1996): XVIO-XIX; Weber. (1978): 798-99, 821. intellectual capacity and piety {taqwa) had the warrant to deliver legal opinion.
The charismatic jurists, by their public reputation and respectability among their
colleagues, carried out the mufliship without any political certification. After their
establishment, the legal schools functioned as autonomous professional guilds in which
the doctors of Islamic law had the authority to profess their legal opinions without any
endorsement from any higher religious or political officialdom. The licenses to teach
and to profess opinions were postulated by the professional guilds which were
independent from any ecclesiastical hierarchy or any system of authority institutionally
higher than that of individual scholars. Intellectual production of Islamic law was
based on the personal performance of the individual jurists instead of an officially
institutional erudition. Ibn Khaldun says
' ...all the conclusions and views [of a doctor of Islamic Law] continue to be something in the mind...in all their intellectual activity, scholars are accustomed to dealing with matters of the mind and with thoughts.''
Owing to this particular epistemological nature of Islamic law, it has been
identified as a “jurist law”^^ and the production process of Shari'^a as “Shari'^a from
below.”^'*
However with the consolidation of the Islamic governments, some muftis
became members of the judicial administration, and ifta’ could not escape from
Schacht. (1964): 74. Makdisi, G. (1990b): 120. Ibn Khaldun: vol. 3: 309. Schacht. (1964). The identification of “jurist law” seems to be borrowed from the evaluations of Roman law. See Schiller (1958): 1226-1232. acquiring a political and official character.From the ‘^Abbasid (750-945) period onwards some legal experts came to issue fatwas at the request of the caliphs, sultans and emirs. Some of them were entrusted with serving as legal consultants for local governors and kadis. '2.1 Through the progressive establishment of the sehools of law and the complication of the scienee of jurisprudence, the governments eame to establish permanent posts for the muflTship, similar to the office of judges, to issue legal opinions
for the political decisions with the prescriptions of their legal schools. George Makdisi writes that;
Properly and legitimately used, fatwas of muftis exercised great influence over the actions of the sovereign. For this reason, the sovereign always tried to attract muftis into his camp to use them to his advantage, and to silence the refractory among them. The mufti was the product of education privately endowed. Fie owed nothing to sovereign power as such. Fie could interpret the religious law independently of the sovereign power and even in his own madhhab. He was alone responsible for his legal opinions, and his responsibility was to God. But sovereign power finally succeeded in creating a post tor the mufti and placing him in its pay.“’
The Islamic governments gradually limited the academic freedom of the Islamie
learning and began to patronize the scholastic centers, madrasas, in which the Islamic
Masud, Messick and Powers. (1996): 4. Ibn Khaldun. (1958), vol. 1: 453; Masud, Messick and Powers. (1996): 8-9. For an analysis about the relationship between consultation and political process in the early Islamic states see Mottahedeh. (1993). 27 Masud, Messick and Powers. (1996): 9. Schacht. (1964): 74. Makdisi, G.(1981): 199. scholarship was produced.^® The State-patronized madrasas became the essential affiliations between the sphere of Islamic knowledge and that of polity. They served not only as centers for graduating the *^ulama’ as men of government, but also as instruments to control and standardize scholastic production and training.^*
However, in terms of the legal nature of Islamic law, the appointment of mufti by the political authority did not cause - unlike qada’- a governmental monopoly of the realm of scholarship, ifti’and tadrls.^^ The existence of ofFicially entrusted muftfs could not abolish the performance of the non-ofFicial, civil and popular jurists. In Islamic cultural tradition, especially among the religious idealists, there was a strong tendency to condemn the scholars who had the strong affiliations towards the government {ma^a suhbatihri-sultan)^^ “It was generally regarded as inconsistent with piety to seek government service.”^"^ In Islamic history major mujtahid-muñh were civil intellectual individuals rejecting to perform as agents of a state as typified by kadis, and preferred, instead, to be independent scholars.^' Accordingly in Islamic legal tradition there was a strong tendency to separate the positions of kadi and the mufti, especially among the religious idealists.^^ The mufti was credited as being a man of divine knowledge who was preferred to be autonomous from any profane power relations and political
Hodgson. (1974), vol. 2; 47-9; Makdisi, G. (1981): 15, 22, 24, 25,...; idem. (1985): 86-7; idem. (1990b): 130. Hodgson. (1974), vol. 2: 48. Schacht. (1964): 74. "Goitien. (1968): 205.
Ibid: 208. Abu Hanifa was the symbolic figure for scholastic autonomy of the jurist. Hodgson. (1974), vol. 1: 255,264, 318, 321, 335, 339. temptations. On the other hand, kadi was perceived as a representative of worldly
authority who was officially appointed by the government. They are inevitably “more
worldly than muftis, both in their responsibilities and in their necessary connection to
the coercive... institution of the state.”^’ The forum of a mufti is typified as the
madrasa, the sphere of divine knowledge, whereas, the realm of kadi is the mahkama, a
public forum, “a locus for the coercive exercise of state power.”^* Muftis were
supported by the pious foundations of the madrasas in contrast to the profane income of
the kadis.^^ In the id ib literature, the conditions {shuruf) for the muftlship and the
kadiship were clearly differentiated. What characterized a mufti is not one’s affiliations
with social and political power relations, but his or her scholarly status, knowledge
and probity ( ‘adala). On the contrary, according to some jurists, even ignorance
ijahl) and the lack of moral standards {fisq) were permissible for the qada’.“^^ There was
even an inclination to represent the qada’ as an ominous office, especially in the Mâliki
circles.·^* Some hadiths were transmitted as: “of three judges, two are in Hell” or “he
who undertakes the judgeship (qada’) slits his own throat without a knife.”^^ However,
Coulson. (1964); Reinhart. (1994). Ibid: 14; In the Hadith literature the prophet was made to say that “on the Day of Resurrection the judge will join the Sultan, but the ‘ulama’ (=muftls) will join the prophets.” Quoted by HaUaq. (1994): 57. Messick. (1986): 110. 39 Ibid: n o . 40 Ibid: 109. Coulson. (1956). Quoted in Messick. (1986): 109. traditionally, ifta and professorship {tadrTs) maintained an inseparable intimacyMost of the time the muftis also performed as professors in the colleges. In the license
granted to the scholars, the functions of ifta’ and tadns were amalgamated as /Jaгat al-
tadrTs wa ’1-ifta’.^^
Despite these general tendencies of ifta’ in the Islamic tradition, there were a number of different practices in different societies. A comparative history of the ifta’
institution performed in different societies has not been written yet. In Western
academy, as a matter of fact, the ifta’ institution has come to receive the attention of
legal historians and anthropologists not long ago. Nevertheless the valuable legalistic
and anthropological works of the la.st twenty years, by Wael B. Hallaq“^^, Nissreen
Haram·*^, Mandaville Marin"^**, Muhammad Kh. Masud^'^, Brinkley Messick'^^, David S.
Powers' , Kevin Reinhart “ and others have constituted a substantial literature for the
history of the ifta’ in Islamic legal tradition. A recent compilation edited by
Muhammad Khalid Masud, Brinkley Messick and David S. Powers contributes a lot in
Al-Akwa‘ records a title representing the affiliation of the two positions: antahat ilayhi riyasat al-Gqb wa al-iatwa wa al-tadris. Messick (1981): 33. Messick. (1986): 110. Makdisi, G. (1995): 153. Hallaq. (1994) and (1996). Harram. (1996). Marin (1990) and (1996). 49 Masud. (1984) and (1993). 50 Messick. (1986), (1990) and (1993). Powers. (1986), (1990), (1992) and (1993). 52 Reinhart. (1994).
10 this sense.^^ The works in the compilation mostly focus on the jurisprudential aspect of
the institutions, in different Muslim societies from the beginning to the modem times.
However there is still a serious gap in the literature especially about the dynamic of
legal consultation in different legal cultures at different times. The legalistic studies are
generally based upon the fatwa compilations, legal manuals of the jurists and âdâb a¡-
/77ü^/· literature, instead of original documentary evidence such as rudimentary fatwi
pieces or court registers. Accordingly most of the studies are to examine the jurisprudential and doctrinal aspects of ifta’, rather than its actual status and function in
the process of law-making. The main reason behind the overloading emphasis on the jurisprudential and doctrinal aspects of ifta’ might be the scarcity of documentary
evidence for pre-modern times, compared to the abundance of doctrinal sources.
However Ottoman studies provide the historians of Islamic law with a plenty of
documentary evidence for its legal culture.
In the studies of the Ottoman legal culture the contribution of Professor Halil
İnalcık is remarkable. Especially his examinations of the relationship between the
sultanic and religious law highlight the function of the fatwis issued by the chief muftis
in the process of Islamization of the Ottoman law.^"* Secondly the contributions of Uriel
Heyd to Ottoman fatwa studies is outstanding. His famous article, “Some aspects of the
Ottoman Fetva”^^ has opened many doors for the legal studies. Especially his zeal to
analyze ifta’ in its practical aspect in the Ottoman legal culture highlights the function
of the fatwa in the Ottoman law-making process. Thirdly Baber Johansen’s
Islamic Legal Interpretation: Muftis and their Fatwas, Cambridge, Mass, 1996. İnalcık. (1950), (1958b), (1969), (1975), (1987); (1992a).
11 contributions deserve to be mentioned. Especially his comments on the social role of ifta’ in modifying the established law with the vibrant social conditions in the Ottoman ages are very much beneficial for broader historical analyses.^*^ Unfortunately, however, he has not consulted the Ottoman-Turkish sources. Fourthly the contributions of Colin
Imber in the last 15 years should be mentioned. His micro studies on different aspects of the Ottoman Law and eminently on the ifta’ institution contribute to the Ottoman CO jurisprudential studies. Although Richard Repp’s scrupulous study. The Mufti of
Istanbul: a Study in the Development o f the Ottoman Learned Hierarch^^, provides a systematic elaboration of the biographies of the Ottoman chief muftis and characteristics of the learned hierarchy, it rarely discusses any legal point of view and limits itself within the social and political dimension of the learned circles. In the studies on the court registers two names should be mentioned Richard Jennings^® and
Haim Gerber. Richard Jennings, in his esteemed work on Kayseri, Trabzon and Cyprus court registers, examines the legal functions of the fatwa in the Ottoman courts procedure.^* On the other hand, having worked on the Ottoman court records for many years, Gerber has recently written a comprehensive work on the Ottoman Law one chapter of which has been dedicated to the ifta’ performance. Especially his
Heyd. (1969a). Johansen. (1981), (1988) and (1993). Imber. (1981), (1982), (1992), (1993), (1994a), (1994b) and (1996). I have not had the opportunity to read his recent book Ebussu ‘ud, (1997). 59 Repp. (1986). ^ Jennings. (1978a), (1978b), (1993). Idem. (1993). Gerber. (1994): 79-111.
12 employing anthropological tools in his examination gives the work an interdisciplinary perspective.
The present study is to handle the legal consultation in the Ottoman legal culture
in a particular period, namely 16*'’ and 17"* centuries. I will try to cover three different
aspects of ifta’ namely (i) the making o f the muñí, (ii) the m aking o f the fatwa and (iii)
the function o f the fatwa in the Ottoman court. In the first part both the chief mufti and the provisional muftis in the Empire will be analyzed. In this section the problem of scholastic autonomy will be discussed with the indications of the muftis’ affiliations with the central authority. In the second part the characteristics of the fatwa production in the Ottoman legal culture will be scrutinized. I will especially examine the working
of the fetvahane, the formalization of fatwa-making and textual, linguistic and stylistic characteristics of the Ottoman fatwa. In this section I also briefly examine the legal and
codicological characteristics of the fatwa compilations. In the third section the function and the status of the fatwa in the Ottoman court will be analyzed under the light of
some empirical indications. I will especially elaborate some proceedings selected form
Ankara court registers of the late lb*** and early 1?"* centuiy.
Throughout my examination, instead of making jurisprudential analyses, I will investigate the ifti’ institution as a legal instrument in a particular legal culture and in a limited time period. In this respect the cultural environment in which the legal consultation took place, the process of fatwa-making and the function of the fatwas in the Ottoman judiciary procedure will be scrutinized. Doing so, I will try to catechize the institution not as it was expressed in the manuals, but as it was in practice.
13 Chapter One ^
The Making of mufti in the Ottoman Empire
“And He knows more than any scholars. ” The Koran, 12/76.
“Müftilerün birsöziiki olmaya” Zâtı
he purpose of this chapter is to analyze some characteristics of the Ottoman Tjurisconsults, the şeyh ül-İslâms and the provincial muftis {kenar müñlleri), and their roles in the Ottoman legal culture. The Ottoman jurisconsulship may be scrutinized in the framework of the Ottoman scholarship and the learned hierarchy.
Accordingly, before hand, basic characteristics of the Ottoman learned hierarchy will be analyzed. In the second section the chief muftis, in the third section the provincial muftis will be examined.
1.1. Some characteristics o f the Ottoman scholarship and learned hierarchy in the and 1 centuries
The Ottoman learned hierarchy was one of the most prestigious social status in the Ottoman Empire. ‘^ÎİmTye career, for an Ottoman individual who was not from a noble military family, was the only line to ensure social prestige and exemption from taxes.' Professor İnalcık states;
An ‘ilmiye cweet as the only way left for a Turk of rd iy ä origin to climb on the social ladder and thus share the privileges of the military class in the
1 rİnalcık. (1988): 257.
14 Ottoman Empire, when in the sixteenth century, the ruling group’s monopoly over the positions of power became more rigid than ever, as a logical evolution of the political system...Since the ‘ilmlye career brought social prestige and many advantages, including exemption from taxes the high echelons of the military class sought the ‘//m/yecareer for their sons.^
In the lb*** and 17‘** centuries Ottoman Empire, the primary education for a child
started with the instruction that was received at home and his close neighborhood.^ The
sons of the *^ulema’ families were much more advantageous than those of the ordinary
families, since they were more familiar with the scholastic environment and perhaps they started to learn Arabic language under the supervision of their parents. Piramary
education, however, docs not seem to have gone beyond learning to read and write.^
After the primary education, the student entered one of the low-ranking medreses
{medaris-i rcsmryc, with a salary of 20 to 40 ak9as), most of the time in their provinces.^
During the first years in the medrese, the fellow {sühté) became familiar with the
elementary works of Islamic scholarship in theology and rhetoric.^ From the low-ranking
medreses, the fellow would continue to medreses of higher levels in bigger cities,
preferably those in Istanbul. “At each stage of his studies, a student had to obtain a
certificate {tezkire or temcssük) from the professor under whom he studied.”^ The
fellow, after completing different medreses from different ranks, entered a sultanic
^ Ibid.: 258. ^ Fleischer. (1996): 17-23. Uğur. (1986): xxxvii. ^ Uzunçarşılı. (1988): 55-59; Uğur. (1986): xxxviii. *’ For a long discussion about the courses taught in the Medreses see: Uzunçarşılı. (1988): 20-31. Mnalcik. (1988): 256.
15 medrese, either Şahn or Süleymanıye in the status of daniş-mend} Sultanic medreses
were the last stage in graduation, and after a fellow completed his studies in these
colleges, he became qualified to proceed either the teaching {tedns/tadns) or judiciary
{kada’/qada^ career. To be appointed, the fellow, first, recorded his name into the
registers {rüznâmçe) clutched by the kadi^asker of Rümeli.^ However in order to be
appointed, the fellow had to be certificated by an individual of high rank in the learned
hierarchy. This certification of the fellows by high ranking individuals was known as
mülâzemet. A danişmend, in order to have his certification, was expected to serve as
assistant {m ifid) under the supervision of the senior jurist who would grant the
certification.This period between the graduation and receiving the certification was
known as nevbet}^ In the mid lö*** century the standards of the mülâzemet system were
' 19 clearly established. In the regulations about the learned hierarchy, the capacities of the
high ranking offices to grant the mülâzemet for the fellows were clearly defined. For a
candidate, however, it would be advantageous, to get his certification from someone of
greater influence, preferably from the şeyh ül-İslâm.'^
After receiving his mülâzemet, the fellow was appointed with a sultanic diploma
{Beraif^ and entered into the Ottoman learned hierarchy, either through academic or judicial career lines {manşıB). The graduates were expected to make two different *
* Repp. (1986); 41. Mnalcik. (1988). Uzunçarşıh. (1988): 45-53. " Ibid.: 46-48. ‘^Ati'i; 184; Repp. (1986); 51-53. Uğur. (1986): xliv.
16 choises. First of all a fellow was expected to choose the area he preferred to work in,
whether the European or Asiatic parts of the empire. Secondly he decided whether he
preferred to be a kadi {tarik-i kadâ*) or a müderris (tank-i tedris). The medreses and
kadi offices, in the central lands of the empire, were ranked hierarchically according to
the fixed daily revenue for each rank. For the graduates, it was more preferable to begin
their career through the academic line as muderrises in the various grades of medreses. If
a scholar shifted to the judicial career from a higher rank medrese, he would start his judicial life again from a higher level.
In the academic line, a young professor âlini) began his career from medreses
with salary of 50 akças per day {ibtida’-yi baric). During the first years in his career he
elevated different ranks of medreses, hareket-i baric, ibtida’-yi dâhil, hareket-i dâhil,
mûşıle-i Şahn and Şalm. In spite of the hierarchy in the ranks, the medreses of these
ranks had most often fixed salary of 50 akças per day.’^ After completing the Sahn, the
scholar would proceed on the medreses of the SüleymânTye complex, starting from the
posts with the salary of 60 akças per day. The grades in Süleymanıye complex were
İbtidâ’-yı altmışlı, Hareket-i altmışlı, Mûşıle-i SüleymânTye, Hâmiş-i SüleymânTye,
SüleymânTye and Dâr üI-hadTs of the SüleymânTye.*^
Uzunçarşıh. (1988): 77, 87. Repp. (1986): 55. Ibid.: 55. Uğur (1986); xlvi. ** Ibid.: xlviü. Uzunçarşıh. (1988): 33-38; Uğur. (1986): xlviii.
17 The gradation of the colleges were determined in terms of their patronage characteristics. The most high-ranking colleges {dâhil) were those patronized by the
sultanic family, whereas the lower-ranking colleges {hâriç) y/ere those founded by private individuals, families of pre-Ottoman rulers and Ottoman officials. Through their careers, the professors were continuously dismissed and appointed to different medreses for short time periods.
Most of the time, a professor combined an extra office, such as the post of preaching in Friday prayers or private tutorship to the some families. Some medrese
professors seem to have also functioned as fctvâ em m i (supervisor of the fatwa department) to the şeyh ül-İslâm or tezkTreci (private secretary) to the şeyh ül-îslim or kâdî‘'askers.^^ The professors were also employed by the government occasionally for temporary offices, for example as an inspector {müfettiş) for various purposes. The
most prestigious of the temporary offices was the inspectorship of the pious foundations of the imperial family. For our purposes, the most important extra employment of the professors seems to have been legal consultation. As we will see later, some posts in
some medreses were the joint-offices by the mudarrisship and the muftTship. These
scholars were authorized as provincial muftis to issue legal opinion {mevzun bi’I-iñá^ for the private applications in their region.
'"R epp.(1986); 39-41. '' Uğur. (1986): Hi. Şeyhi (Uğur’s ed.): 103,154,198,590. “ Uğur. (1986); Ivi.
18 In any stage during his career, a jurist might prefer to shift to the judicial career, as a kadi in one of the administrative unit. One interesting characteristic of the
Ottoman learned hierarchy was the one-way mobility from the academic to judicial career. Although the scholars could move to the judicial career in any stage of their academic life, after attending the judiciary career, it would be hardly possible to return the academic career again.^^ The posts of the kadis, similar to those of professors, were ranked in terms of their revenues per day.^^ The higher ranks of the judiciary post were those known as mev/eviyets. Mevleviyets were the judiciary office of big cities, with a salary 300 or more akças per day.^^ The highest mevleviyets were those of Istanbul,
Edirne, Bursa, Filibe (Plovdiv), Sofya (Sophia), Selanik (Salónica), Şam (Damascus),
Haleb (Aleppo), Mısır (Egypt), Diyarbekr, Baghdad...“ The kadi offices were carried out in 9 system of rotation. The offices were most often limited within one or two years.
Thereafter the kadis were dismissed and they started to wait for another appointment
(devroT nöbet).
The highest ranks in the entire learned hierarchy were the kâdî'^askerlik of
Anatolia, the kadT'askerlik of Rumelia and then the şeyh ül-İslâmlık (chief jurisconsulship). In the 16'** and 17* century all holders of these offices came from the judicial career, although they had taught at various high-ranking madrasas before
See the table demonstrating the mobility from the academic career to the judicial career in İnalcık (1972): 170, table 6. Uğur. (1986): bci-lxvi. Uzunçarşıh. (1988): 91-99. Ibid. (1988): 95. Ibid. (1988): 96.
19 shifting to the judicial line.^® Most of the time after completing one of the SüleymânTye
Medreses, they moved to the judicial line and began their career from a mevleviyet level, as a kadi of one of the important cities?^ From Ebussu'^ûd Efendi onwards, most of the chief muftis came from the kidraskerlik of Rumelia.^^ The şeyh ül-İslâm (or the chief mufti) was the most prestigious figure in the Ottoman learned circles. With the consolidation of the mülâzemet system in thel530s the mufti ascended to the head of the entire Ottoman religious establishment. In 982/1574, he became responsible for the nomination of high-level learned posts {mevleviyets and m üd en islih above the salary of
40-akça level), kadis of the army, provincial muftis, public preachers (hatrb&), prayer leaders (imams) and prayer collars (müezzlns).
In the Ottoman Empire the scholarship and the learned hierarchy seem to have been intensely controlled by the political authority. The essential tool in controlling scholarship was the sultanic patronage of learning. Medrese education was arranged by the government in terms of ranking the colleges in a hierarchy. In the hierarchy, sultanic medreses (dâhil) occupied the highest ranks. A fellow in order to complete his education and proceed the academic or judiciary career, had to complete his education through this hierarchy. After completing the medreses, in a sequence, the fellow encountered with a second regulation. In order to be either a teacher or a kadi, he was
^’ İnalcık. (1988): 257. Repp. (1986): 61. Ibid.: 61. Uzunçarşıh. (1988): 178. Ibid.; 179; Repp. (1986): 293.
20 expected to receive a certification from a high-ranking jurist. As Professor Repp mentions:
The system of investing miilizum thus developed would seem to have provided the state with a means of controlling both the quality and the quantity of the intake of students into the learned profession. The need for the recommendation of a high-ranking scholar provided a control on the quality of the intake -as long, of course, as the scholar were reasonably honest- while the quantity could be controlled by altering a number of factors, for example, the period at which the regular inve.stiture (nöbet) took place, the number of ceremonial occasions on which special investitures might occur or the number of students the holder of any office might invest as mulazirm. 34
Through his career as an academic or Judicial figure, the fellow was constantly dismis.sed and reappointed by the government with the sultanic diplomas. An interesting characteristic of the Ottoman learned institution was the amalgamation of the academic life and judicial careers within the same system that was regulated by the government.
In the Ottoman system, not only the kada’, but also the academic sphere was attached to the bureaucratic apparatus of the state. There was a systematic mobility from the academic career to the judicial line. Both the teachers and the kadis were the members of the same division in the social system of the empire. They were the literati of the military class CaskerJ) of the Ottoman society. Nevertheless one can not claim that there appeared no tension between the academic idealists and the ones shifting to the judicial career in the Ottoman empire. We know that from the lb*** century onwards, the complaints about the abuses of the kadis occupied an important agenda in the Ottoman
34 Ibid.: (1986): 54.
21 public opinion?^ In the lb'** and I?*** centuries’ Ottoman legal culture the kadis seem to
have been perceived as the ones departing from the academic enthusiasm and were
inclined by worldly temptations.^^ Accordingly some jurists do not seem to have
preferred to move to the Judicial career but rather performed as scholars in their entire
lifes. After analyzing general characteristics of the Ottoman learned hierarchy, now, I
will scrutinize the two essential ifta’ offices in the empire, the chief muftiship, and
provincial ifta’ in more detailed.
1.2. The ch iefmufti
The actual office of the chief muftis, or şeyh ül-İslâms, besides their
distinguished position as the head of the Ottoman learned hierarchy, was legal
consultation. The functions of the chief muflT can be divided into three, (i) he was the
personal muftT/religious advisor of the sultan, (ii) he was the official mufti of the state
affairs, and (iii) he was the mufti of the people.
From the beginning of the office, the chief muftis seem to have perfomied as
personal consultants of the sultans. A story between Yavuz Sultan Selim (d. 926/1520)
and his şeyh ül-îslâm “^All Cemâli Efendi (d. 932/1525-6) was to expose the relationship
between the sultans and the chief muftis. According to the story the sultan ordered the
execution of 150 treasury officials whose offence, however, was not made clear.
The mufti heard of this and went to the divan where he was greeted with some surprise as it was not cxistomary for the MiiftI to appear in the divan expcept
Karadeniz. (1996). “...kadılık ider chl-i hükm idi. Zemâne kâdlîan gibi dünyâ-perest olub akça ü alt un cinsine mahabbet eyleyübyapışmazdı..f Şeyhi: (Ms: İstanbul Üniversitesi: 3732: f. 72a)
22 for an affair of some moment. He was given the chief seat, and word was sent to the sultan of his desire to speak with him. He was permitted by the sultan to enter alone, and when he had greeted him and sat down, he said: - The duty of the Müflis {erbâb ül-fetva) is to watch over the after-life of the sultan. I have heard that you have ordered the execution of 150 men, the execution of whom is not lawful under the Shari^a. You must pardon them.” Selim was angered and replied: - You are interfering in the affairs of state (emr üs-saltanat). This is not part of your duty.” ‘Ah Cemâli then answered: - Nay rather 1 interfere in the matter of your after-life; that is part of my duty. If you pardon them, you will have salvation; if not, you will suffer a great punishment. At this Selim’s anger passed and he pardoned all of them, .Í7
The chief mufti’s second function was related to the state and public affairs. In the course of the lb*"* century, the mufti ship of Istanbul gradually became one of the key
positions in the Ottoman state. The muftis came to participate actively in political
decision-making and legislative processes of sultanic law. In the lb*** century the major
attempt in codification of the kânünnimes was initiated by two great chief muftis of the
Siileymanic age, Ibn Kemil and Ebussu'^üd.^® These two figures, in the course of the lb**"
century, evinced a great zeal in Islamizing and fixing the Ottoman land law.^^ They
formulated the Islamic definition of state-ownership of the land and peasant possession
rights.
Quoted by Repp. (1986): 21 l.Taşköprüzade: vol. I, p, 426-9; Mecdl: 305-7. İnalcık. (1969). Idem. (1992a); idem. (1975); idem. (1969); Barkan. (1943); idem. (1945).
23 During the muftîship of Ebussu'üd Efendi (952-982/1545-1574) a number of his
fatwSs {Md^TÛzât) which were submitted to Sultan Süleyman the Lawgiver, were
compiled, codified and issued through the sultanic law."^*^ According to the preface of
the compilation Şeyh ül-İslam Ebussu‘^üd Efendi had suggested to the Sultan, for the
sake of the order of the state and because the ordering of the affairs of the realm was
necessary, the opinion of certain great jurists of the past (müctehidTıî) that should be
followed,"^* In the compilations most of the fatwis were about the problems on which
there were disagreements among the great jurists. Ebussu'^ud suggested the rulings
about these disputed problems. According to Ebussu'^ud, the judges were forbidden to
choose any disputed opinion voluntarily {hilâfiyâtdan mahcur) and they were obliged to
give their judgments in accordance with the Sultanic directions.“*^ The compilation was
Hoster; Selle; İnalcık. (1958b); idem. (1969); idem. (1987); idem. (1992a). "" bundun akdem merhum şeyh ül-İslâm ve m üfti ül-eaâm ‘^allâme-i zaman ve fehhim-ı âvân eizal üJ-mevcüd hazret-i mevlânâ ve şeyhnâ Ebussıfüd Efendi hazretleri...sultâa-t zaman ve zemin-i halife rabb ul-‘âlemin cenâb-ı cennet mekân-ı ferdevs-i iş iyin ebû ül-fetb ve’n-naşr merhum Süitin Süleymin Hin...hazretlerinenizim< din ü devlet ve intizim-ı ahvil-i memleket iktizâ itmeğin bifâ mesillde e’imme-i dinden bıfzı müctehidin...kavilleriyle ^amel olunmak münisib aldığın ‘arz buyrulub ol minvil üzere "amel olunmağa..” Horster: 23. For different evaluations and English translations see: Heyd. (1972): 183-4; Repp. (1996): 279-80; Imber. (1992): 181; Gerber. (1994): 88-9. “Mes’ele: Buşüretdehâkim ül-vakt ‘bubuşüşda riviyat ö akvilmuhtelifedir. Ben dahikavl-i ahar ile "amel idüb sıbhat-i nikâha bükm dizd ir' deyü bükm eylese Şef an hükmi ci'iz olur mı? El-cevib: Memnif olıcak cidden ci'iz d^ildir. Ziri' kuzitın vilâyeti şibib-i Ulifetin im i ile icizetinden müsteiaddır. Ve hem eşahh-i akvil ile hükme me'mUrlardır. Ve biHûyatdan mabcürlardır..” Hoster: 29.
24 sent to the kadis of the empire and they were ordered by the sultan to behave
accordingly.“*^
In this period the Ottoman chief muftTs seem to have contributed a lot to the
religious legitimization of political initiatives. Ebussu*^ud issued fatwas for the
execution of ^eyhzade Mustafa in 960/1553 and for proclamation of §eyl^ade Bayezid
as a rebel.“** He also played an active role in the decision to go to war with the Venetians
over Cyprus in 977/1570.“*^
Recent studies on the Islamic jurisprudence have suggested that the Ottoman
chief muftis deserved to be studies in terms of speculative performance,
{ictihad ijtihad) in the post-classical Islam. Professor Gerber, referring to Wale B.
Hallaq’s examination of the post classical developments of the ictihad^^, has claimed
that Ebussu^iid should be reinterpreted by the scholars in terms of his role as m u cteh id f'
Gerber’s suggestion is beyond the scope of the present paper. However, it will be
beneficial, in this respect, to recall Repp’s study on Ebussu'^ud. According to Repp,
Ebussu'^^ud seems to have been perceived by his contemporaries as a follower of the path
of ray and ictihad^^ About the disputed public questions of the lb'** century the chief
muftTs appear to have issued fatwas . To give an example, in the second half of the 16‘** century, Ebussu'^ud approved the cash vak^ {vakf un-nukud) which were widely
established in the Ottoman society. “His reasoning was”, in Professor inalcik’s words.
Hosier; 23-24. Repp. (1986): 288. Ibid.: 289. Hallaq. (1984). 47 Gerber. (1994): 89.
25 “that thousands of poor people, 'ulemâ’, students and poorhouses benefitted from this institution and its abrogation would have caused widespread damage to the Muslim community. Thus, the principle of istişlâh, public welfare, was used to approve the institution of cash vakñ,''^'^ Likewise at the end of the 16*** century the status of coffee occupied the attention of the Ottoman public opinion. From the lb*** century onwards the coffee houses came to appear on eveiy comer of Istanbul.There were severe discussions about the permissibility of the coffee and coffee houses among the jusrists.^*
However the chief muñí Bostanzâde Mehmed Efendi (d. 1006/1598), who was also addicted to coffee, issued a poetic fatwa put an end to the discussions:
First of all coffee makes mucus be removing. Melts it, and never keeps it in the mouth. Coflee prevents any vomiting And say the jurists, it is for the mouth.’^'
Third function of the chief mufti was to issue legal opinions for the private applications. Some historians, accordingly, have claimed that there were two different kinds of fat was in the Ottoman legal culture, fetâvâ-yı umûmi (fatwas for public affairs), and fetûvû-yı huşûşT (fatwas for private questions asked by the petitioners).^^
Issuing a fetva-yi huşüşl, the mufti was functioning as an ordinary miiftl answering any question coming from any Muslim. Nevertheless, as it will be analyzed in the second
Repp. (1986): 282. İnalcık. (1987): 4. ^ Bimbaum. (1956). ” Mizan ül-bakf(. (Gökyay eddition): 39-40. Flattox. (1985); Yurtaydm. (1989). My translation.
26 chapter, a special bureau was established, so called fetvahane, to issue fatwis signed by the chief mufti, for the private applications. These fatwas were mostly used in the
Ottoman courts by the litigants in their legal transactions. Thousands of fatwa collections of şeyh ül-İslâms in the Ottoman libraries may enable us to think that the fatwis, apart from the legal opinions for the public and political affairs, were highly used by the Ottoman kadis in the lawsuits.
The enforceability of the chief muftis’ fatwis was related to the muftis’ status in the state affairs. In Islamic legal theory the fatwis of the chief mufti was not superior a those of other muftis. His political superiority did not provide an academic preeminence according to Islamic theory.^·^ In Islamic culture, the enforceability was carried out by the caliph; this was the case at least in the Ottoman conception.^^ Accordingly, the legal opinions of the chief mufti acquired enforceability though sultanic order. Sultan, in the Ottoman legal theory, had right to impose a legal opinion to the executors of law, kadis. In the Ottoman legal practice sometimes the fatwa compilations like Ma^rüzât of
Ehussu'^ûd, sometimes particular fatwas for individual cases were dictated to the kadis through the sultanic orders. In the previous chapters, we will return this problem.
Uzunçarşıh. (1988): 201. Hallaq. (1994). ” İnalcık. (1987): 20-4. ^ For an Ottoman theory of caliph and enforceability see Dede Cöngi.
27 1.3. Provincial muñís
There has been no individual study particularly focusing on the provincial muftis in the Ottoman Empire. Although they have been mentioned by some historians
in some occasions in their analyses on the mufti of Istanbul^^ or the Ottoman learned
CO hierarchy , there is a significant uncertainty about the roles and positions of the provincial muftis in the Ottoman legal culture and the institutional Islam. The
underestimation of the provincial muftis -or muftis other than those of Istanbul-, on the other hand, has caused an inevitable reduction of ifta’ institution to the iftä’ performed
only by the mufti of Istanbul. The provincial iftä’, in Ottoman historiography, has still been under the gigantic shadow of şeyh ül-Isläms.
Under the slender light of the unsatisfactory secondary literature and limited
primary sources, however, one can not avoid to ask the question, if there was an
unequivocally officially-defined muftiship, other than şeyh ül-Îslâm, in the Ottoman
institutional conception. It would be worthy to mention Professor Repp’s analysis in this
respect. Repp suggests that in the 15*** and 16‘** centuries one can recognize, other than the office of şeyh ül-İslâm, two typologies of muft7ship. The first category refers to the
muftis of a number of cities and large towns whereas the second to the muftis of small- towns and villages.According to Repp, the first group certainly belonged to the
Ottoman learned hierarchy and maintained their career under the Mülâzemet system.
Repp. (1986); Walsh. (1965). Faroqhi. (1973); Lybyer. (1913): 199-226; Uzunçarşılı. (1988); Aydın. (1994); ZUfi. (1988). Repp. (1986): 64.
28 They held the office of some joint mUderrisUis-muftTliL· which appeared in the course
of the century. Repp adds that “many of [these joint positions] were at a relatively
high level in the hierarchy. Often, but by no means invariably, the medreses involved
were imperial foundations”^” Repp gives some examples like the Medrese of Bayezid in
Amasya, the Medrese of Manisa, and the Medrese of Rhodes. In these medreses, the
professor, at the same time, performed as a mufti of the region. On the other hand Repp
admits that because of the lack of evidence he could not elaborate the second group, the
muftis of the small towns and villages. He is content with saying that most probably
these muftis holding offices in the small residences were not the active members of the
Ottoman learned hierarchy. They were rather appointed among the respected learned
figures in their social milieu. According to Repp the muftiship should not be understood
as a status which was a compeer of tedris and ka^a’:
One must be careful to emphasize that there is not enough evidence to suggest that there was in the case of muderris/miiftis anything like as clearly defined a career structure as in the case of the muderrises and the kadis, that there was, in effect, a taiik-i fetva comparable to the tarik-i tedris and the tarlk-i kada’
At this point it would be reasonable to give some statistical data derived from
my examinations on some biographical compilations such as Atari’s (d. 1045/1635)
Hada’ik ul-haka’ik fi Tekmllet i§-?aka’ilt^ and §eyhl’s (d. 1136/1724) Vaka’f til-
fu ze /a 'f^ From these biographical sources it can be possible to suggest a map of the
^ Ibid.: 65. İnalcık. (1988). See'Ati'i. See Şeyhi.
29 provincial muftiships in the İh*** and 17‘** centuries Ottoman Empire. According to the
map primary centers of the provincial muftiships seem to be Adana, Agras, Amasya,
Ankara, Belgrade, Bosnia, Diyarbakır, Filibe (Plovdiv), Haleb (Aleppo), İç-il, Kefe
(Caifa), Cyprus, Kayseri, Konya, Kütahya, Manisa, Manya, Maraş, Rhodes, Selanik
(Salónica), Seyidgazi, Sofya (Sophia) Şam (Damascus), Trabzon, Üsküb and Vize. From
the data one can legitimately conclude that the distribution of the muftlships does not
seem to reflect the administrative characteristics of the Ottoman empire. While many
centers of the Ottoman administrative units, like Aydın, Erzurum, Bitlis and Antalya do
not seem to have any muflîships, Seyyid Gazi, a small town but an important spiritual
center had a number müftïs recorded. On the other hand it is reasonable for the closer
centers to Istanbul, such as Bursa and Edime not to have any appoined muftis owing to the influence of the Mufti of Istanbul.*^ Another interesting conclusion from this
examination seems that ‘^A(â'î and Şeyhî do not mention any muflís in Arabic provinces
except Halep. Does it mean that the mufti of the Arabic provinces were not perceived as the members of the Ottoman learned hierarchy? This is highly possible. We have to
recall that these biographical compilations recorded only the ‘^ulemi’ who were considered in the Ottoman learned hierarchy.
The provincial muflîships, as Professor Repp indicates, most often seem to have been joint m uñí-müderris posts. In the biographies generally the term “//?a ü ifade'
(consultation and teaching) is used to indicate the offices of the provincial muftis. The most well-known of the joint positions was in Amasya. Sultan Bayezid Medresesi of
Amasya provided a joint position of 60-akça. The ifta’ of Trabzon, on the other hand.
64 Gerber. (1988): 189-90.
30 was joint with the professorship of Medrese-i Sultanîye with a worth of 50 akça.^^ The
ifta of Rhodes was joint with the professorship of the Medrese of Sultan Süleymân.^^
‘^Atâ'i records that when Selim II (d. 982/1574) conquered Cyprus he established a
sultanic medrese provinding a joint müderris/muftî post.^^ Besides the imperial
medreses there seems to have been some baric medreses providing the joint posts. The post of the professorship in the Mehmed Paşa Medresesi of Belgrade seems to have been joined with the ifta’ of Belgrade.*^® Likewise the ifta’ of Diyarbakır seems to have been joint with the professorship of Mes‘^üdîye Medresesi.^*^ From the biographies one can
claim that the composition of duties attached to the offices might be changed from time to time. For example the ifta’ of Manisa was joined with the professorship of Sultanîye
Medresesi of Manisa.’*^ However, interestingly enough, later the ifti’ of Manisa seems to have been joined with the professorship of the Sultanic medrese in Bursa. When Celb
Musa Efendi (d. 1070/1660) was appointed müderris to the Sultanîye Medresesi in
Bursa, he was granted the ifta’ of Manisa.^*
Another interesting characteristic of the Ottoman provincial jurisconsulship seems to be muftîs mobility which is similar to entire members of the Ottoman learned
hierarchy who continuously were dismissed from one region appointed to an other
65 cAt IT 11. 66 Şeyhi (Ugur’s eddition); 170. 67 ‘■'Atál; 232. 68 Şeyhi (Ugur’s eddition): 314. 69 Ibid. 176. 70 Ibid. 51. 71 cAta'i:123; Şeyhi (Ugur’s eddition): 224.
31 within short intervals. For example Molla Ayas (d. 1003/1594), the mufti of Amasya,’^
at the beginning of his career, was appointed müderris to Süleyman Paşa Medresesi in
Istanbul, a couple of years later, he was appointed mufti to Trabzon in 979/1571. Seven years later he was appointed müderris to a sultanic medrese, Sultan Murad Medresesi in
Bursa. In 987/1579 although he was appointed to the ifta’ of Cyprus, he did not accept,
and he was re-appointed to the Sultan Murad Medresesi in 988/1580. In 990/1582 he
was designated as the mufti to one of the most prestigious ifti’s, namely ifta’ of
Amasya. He was teaching in the Sutanic medrese of Sultan Biyezid and at the same
time serving as a mufti in the city {ifta’ ii ifade). He was dismissed in 995/1587 and
died in 1003/1594.^^ Similarly ‘^Abdullah (d. 1022/1613), the mufti of Damascus, before
being appointed to Damascus, was appointed müderris to Bursa, then to İznik and later to the Sahn Medrese. At the end of his career he was appointed mufti to Damascus.^“*
The ifta’ seems to have been granted for a short time period -not as short as kada’- most often for 2 to 5 years. Occasionally however the office might be held more
"Atil:; 393-4. For similar examples see: 'Atal: Molla ‘Ali Arabi (fetva Mukabelecisi): 439-40; Molla ‘Abdulhalim ‘Acemi (mufti of Ceffe): 258; Molla Sinan (mufti of Damascus): 176-7; ‘Abdurrahman Efendi (mufti of Maraş): 433; ‘Ali Deni Efendi (mufti of Seyyid Gazi): 144-5; Molla Ak Muşli (mufti of Manisa): 525; Molla Ahmed (mufti of Amasya): 525-6; MoUâ Mahmüd (mufti of Salónica): 668-9; Molla ‘Abdullah (mufti of Damascus), 564-5...many other. And also see Şeyhi (Ugur’s eddition): Bülbül-zide Emiri Seyyid Mehmed Efendi (refusing the müft iship of Manisa): 51; BostânI Ahmed Efendi (mufti of Ankara): 49; Köseç Ahmed Efendi (mufti of Amasya): 31; Seyyid ‘All-zâde Seyyid Mehmed Efendi (mufti of Vize): 6; El-Hâc Mustafa Efendi (mufti of Filibe): 541. ‘Atâl: 564-5. Ibid.: 258, 176-7, 433,144-5...
32 than 5 years, upto 10, 15 years. According to my examinations the longest intervals of
service were held by Dell ‘^AIT Efendi (d. 970/1562), the muftT of Trabzon who has held
the office for seven years;^^ ‘^İbâd Çelebi (d. 984/1575) served as the mufti of Amasya
for 10 years;’’ and El-Hac Mustafa (1094/1683) held the muflTship of Filibe for 15
years.’^
The mufti office seems to have been perceived as an academic post, more than a judiciary position. Almost all of the provincial muftis came from academic career. One
can hardly encounter a kadi shifting to the office of iftá’. Furthermore in the 16*** and
early n'** century most of the muftis do not seem to have been inclined towards the judiciary. They rather seem to have preferred to remain in academic life, either as a müderris or a mufti, until the end of their career. However from the mid 17'** century
onwards, it seems that the muftis, after a career in academic life, in one step, came to prefer to shift to the judicial career. For example Seyyid ‘^All-zade Seyyid Mehmed
Efendi (d. 1043/1633) after teaching in different medreses and performing as a mufti in
Vize, at the end of his muftlship, shifted to judiciary in the same city.” Similarly el-
Hac Mustafa Efendi (d. 1094/1683) after performing as the mufti of Filibe for 15 years, preferred judicial career and was appointed as the kadi to Konya. Nevertheless, as I have mentioned, it is hardly possible to encounter kadis who returned to the office of
ifta and tediis after the judicial career. Nevertheless uncommonly one can come across
76 Ibid.: 45-6. 77 Ibid; 641. 78 Şeyhi (Ugur’s eddition): 541. 79 Ibid.: 6. 80 Ibid.: 541.
33 with some kadis holding the office of ifta’ and tedris. There seems to be economic
motivations behind the tendency of the scholars and jurisconsults to prefer the judicial profession. The judiciary career seems to be economically much more satisfactory for
the scholars of Islamic law. Molla Mahmüd (d. 1031/1622), the former mufti of Selanik
and Filibe, after his dismissal, was appointed the kadi of a kaza’ of Egypt (Manşûrah).
Nevertheless interestingly enough he accepted the office of kadi’ only because he
suffered from poverty for a long time {nice zemin derd-i hirminla h il-iperişan..?). He
seems to have accepted the office reluctantly {rizi olub...), most probably, to release himself from poverty. 82
One should say that besides the identified muftis from the biographical sources, there must have been hundreds of muftis who were not recorded in the ‘^ulemi’
biographies. A number of humble pious people living in their villages might have been
designated as muftis in their localities. A note in a 17*'* century text is meaningful in
this sense. The author of Hirz iil-mülük advised the sultan to designate some pious
elders among the retired scholars ( aliiTİ) as müftı in their localities.
Having examinined the biographical statitics, now it would be reasonable to
analyze the status and the function of the provincial muftis in their localities. The
principal function of a provincial mufti seems to have issued fatwas upon the
applications of the local people either for their moral questions or for their lawsuts in
*' Ankara, sicili: 5/1449; Ergenç. (1995): 81. ‘^Atâ'i: 668-9. 83 Ve müderrisinden fakabet ile ma ruf ve diyanet ile mevşûf kim baricden ma zuJ ve kim dibile mutasarrıf oiub fetva virm^e iktidarı olan müsınn ü ihtiyar dıf acılan kendü hallerine
34 the court. As it is reflected in the court registers, as we will see in the 2“** and 3'**
chapters, occasionally either plaintiffs or defendants presented fat was from the muftis
of their localities to support their claim in their litigations. They used to express their
litigation to the mufti and ask for a legal opinion. The muftis prepared a fatwi based
upon the petitioner’s expressions of the case and signed his ruling. These fatwas were
mostly seen as jurisprudential support for their claims in the litigations. If we may use
Lybyer’s words, “since there was no class of professional lawyers, the muftis were a
necessary and very useful body.”^“^ As a result of their legal consultation. Evliya Çelebi
records that, the provincial miifti were paid 10 akças in return for a single fatwa in the
I?*** century.^^
Sometimes, however, the kadis seem to have consulted the muftis for the
difficult, complex and sensitive problems encountered in the trials. Muftis, as the
experts of the legal scinceses, might edify the kadis with the doctrinal prescriptions.
According to Walsh, local muftis were serving also as local advisors of the district
because, besides their scholarly capacity, they might be familiar with the local customs
and community much more than the kadis who were just a temporary agent of the
state. It would be also legitimate to think that the muftis used to function as a
koaulmayub, ‘Müslümanlarla naff siz’ deyü etraf ü canibde fetva bıdmetine sevk olunmak münâsibdirf Huz ül-mülûk: 194. 84 Lybyer. (1966): 208. Heyd, (1969b); 53. Seyahatname, III: 429; IV: 175. Walsh (1965): 867.
35 mediator {hakeni) among the quarrelsome individuals before applying the court to
abstain from the expenses of the legal trial.^^
On the other hand the muftis seem to have been sometimes designated with the
kadis by the government to handle some litigations and settle the disputes.* ** These
designations might illuminate some aspects of the relationship between the muftis and
the kadis in the localities. Through these orders the mufti and kadi were asked to settle
the dispute without differentiating their roles in the trials. However it would be
legitimate to think that the muftis, as legal experts, were expected to analyze the case
and consult with the kadi for the appropriate ruling. During my examinations in Ankara
court registers I have come across a number of sultanic decrees sent both to the mufti
and the kadi to designate them for different purposes. For example in a decree dated Zil-
kade 997/1589 the mufti and the kadi of Ankara were ordered to settle the dispute
between Sinan, the kadi of Kureyj-ozi and three individuals.
The relationship between the mufti of Istanbul (the chief mufti) and the provincial mufti is a crucial problem. In the Islamic legal philosophy, as it was
mentioned, the political certification does not necessariliy grant any jurisprudential
superiority to the jurists.^^ However the mufti of Istanbul was the head of the entire
learned establishment and he was politically superior to any mufti appointed by the
state in the empire. Was this political superiority transformed into a jurisprudential
87 Aydin. (1994): 412. ** see: Ankara, sicill·. 2/695; Ankara, siciH:2/754; Ankara, sicill:2ll702; Ankara, sicUI: 2/1741. Ankara, sicill·. 2/695 (see picture 51). For similar case see Ankara, sicilf. 2/1741 (picture 52); Ankara, sicilt 2/754 (picture 53); Ankara, sicill·. 2/1702 (picture 43). Coulson. (1956).
36 predominance? Did the chief muftis have faculty to impose their opinions upon the entire jurists? Although the definite answers are beyond the scope of the present study,
it would be appropriate to suggest that the chief muftis’ premium position in the learned hierarchy and their political vigor seem to empower their jurisprudential identity, at
least in practice, vis á vis others. In their jurisprudential activities, the provincial muftis seem to have been under the supervision of the chief mufti. As an example: while the
provincial muftis were appointed with the nomination of the chief mufti, the chief mufti imposed the provincial muftis to refer to the particular textual sources predominantly recognized by the Ottoman religious circles.^'
Coming to the Arab provinces, after the recent studies on the Arab ‘^ulama’ one can suggest that the Arab muftis were quite autonomous compared to their colleagues performing in the core lands of the Empire.’^ According to Walsh^^, Rafcq*^“* and Gerber the muftis in the Arabic lands were autonomous figures recognized by the Ottoman state, but were not subordinated by the Ottoman şeyh ül-îslâms.*^'"’ In accordance with the moderate perimeters of the Ottoman bureaucratic penetration into the Arab lands, the control of the Arab ‘^ulemi’ by the Ottomans seems to be very limited. Although the kadis of the Arab provinces were appointed by the government, one should carefully
In the petition written by the chief mufti for the nomination of a provincial mufti, he states He mutasamf olub esahh-i ekval-i e’imme-i Haneûyyedea aa^ini yazmak üzere emr-i şerif rica’ olumr." Ibnülemin, tevcihat kay. no. 670, 674, 675. Quoted by Uzunçarşılı. (1988); 7Q, n. 3. Rafeq (1994); Johansen. (1993a); Gerber. (1994): 85. ’’ Walsh (1965): 867 94 Rafeq. (1994). 95 Gerber (1994): 85;.
37 contemplate the limits of the Ottoman influence into traditional centers of the Islamic
law. Whereas the Ottoman policy-makers evinced a zeal to transform the city of
Istanbul to a “Cultural Capital” for Islamic learning with the construction of the
Sultanic medreses, the influences of the Ottoman challenge to the traditional centers is
still an obscure point. Professor Rafeq, in his analysis on the Syrian ‘^ulama’ under the
Ottoman rule, states that:
The majority of the Syrian ‘ulama’ from the very beginning of the Ottoman rule did not identify themselves closely with the Ottomans. The contemporary Syrian chronicles and biographical disctionaries referred to the Ottomans as Rihn, a term used earlier by the Arabs to the Greek Byzantines. The Ottoman sultan was referred to as sultan al-Rum and the Turkish pilgrims who came to Damascus to join the pilgrimage to the Hijaz were likewise referred to as al- hajj al-Rmn... The Syrian biographers, who were top ‘^ulama \ hardly referred to the Œtoman sultan as “our” sultan {sultänunä), a term which they used to the earlier Mamluk sultans. 96
1.4. Conclusion
In Islamic legal culture there were three main offices, the judiciary
{qadâ’/kadâ\ the professorship {tadns/tcdns) and jurisconsulship As it has been
mentioned in the introduction, in the Islamic legal tradition, there was a strong tendeney to separate the judiciary from the professorship and the jurisconsulship. While the
professorship and jurisconsulship were perceived as academic positions, the office of kadi was an administrative and bureaucratic post granted by the government. The
academic guilds of law in which the tadrTs and iftâ’ were performed without any political certification, provided an instituted autonomy in the academic sphere of law in
96 Rafeq. (1994): 28.
38 the early Islamic legal culture. Gradually the autonomy of the legal academy in Islam
came to be limited by the strong centralist governments. Since the Islamic governments
were very limited in their capacity to carry out legistation, they intended to establish a
political patronage of scholarship through which legal knowledge was mastered.
The Ottoman Empire represents probably the highest point in political patronage
of the scholarship among all Islamic states. The scholarship and the masters of legal
science, in the Ottoman empire, were disciplined into a learned hierarchy by the state,
with the help of a variety of instruments; ranking the colleges and posts into a hierarchy,
limiting the periods of the office, granting tax exemptions and regulating the salaries
ect...
In terms of legal consultation, the Ottoman state set up a predominant office, the
şeyh ül-İslâmlık, which was to supervise the entire scholarship and learned hierarchy.
The şeyh ül-İslâm functioned as a personal advisor of the sultan, an official mufti of the
slate and public affairs, and a mufti of the people. Although his legal opinions, in
theory, had no superiority compared to those of other muftis, his political preeminence
seems to have provided an academic ascendancy. His opinions gained an enforceability
with the sultanic orders.
The provincial muftis, on the other hand, were part of the Ottoman learned hierarchy. They were appointed by the government. Most of them came from academic career. During their office, generally they also performed as a professor in a college.
Their essential function was to issue legal opinion for the petitioner or to suggest some legal directions for the kadis. Sometimes they were delegated for specific charges with the judge by the government. As a result, I think, it would be legitimate to argue that in
39 the Ottoman legal culture, ifta’, like the other two offices, kada’ and tedns, was organized by the government as a bureaucratic or semi-bureaucratic institution.
40 Chapter Two ^ Making of the fatwa in the Ottoman legal culture
M es’ele: S üret-i fetva muhteîl veya mühmel çıksa, akçası kâtibe helâl olur mu?
El-cevab: Helâldir; mûsteiîinia dediğin yazdıysa, ihtilâle bais müsteûi olur. Ebussıfüd'
n the historiography on Islamic cultures fat was have been generally handled by the Ihistorians instrumentally as a source of legal and social history. However recent research on legal anthropology pushes the historians of law to pay their attention to the
legal instruments for their own sake. The discoursive, linguistic, stylistic constructions
and even the visual image of the legal documents are thought to reflect important
aspects of the law-making process in different legal cultures. Especially the works of
Clifford Geert/^, Jack Goody^ and Brinkley Messick“^ have shown that the literary legal
instruments reflect the practical aspect of law as a formal representation of the legal
discourse. Correspondingly the purpose of this chapter is to analyze the Ottoman fatwa
as a legal instrument. Instead of analyzing the fatwa as the transmitter of legal thoughts
or as a historiographic instrument for social history, here the fatwa will be examined as
a unit of analysis to highlight the modes of fatwa production in the Ottoman legal *
' “ The problem: If fatwa is improper and lacking, is the charge lawful for the scribe ? The reply: It would be lawful, if the scribe writes what the questioner asked, the questioner would be to do with deficiency of the fatwa.-Ebussu^ud” Selle: 17. ^ Geertz. (1983). ’ Goody. (1986). * Messick. (1983); idem. (1990); idem. (1993).
41 culture. I will especially concentrate on the ordinary fatwas of the chief muftis issued for individual applications of the petitioners, rather than the complex or public fatwas submitted to scholastic public opinion or the sultans and the state officials.
Consequently the mechanism of the fatwa-issuance, the textual components, linguistic- stylistic characteristics and visual image of the Ottoman fawti will be analyzed.
Although I mainly concentrate on the fatwa of the chief muftis, sometimes, I will not avoid to mention fatwas of the provincial muftis.
The pioneer study on the documentary aspect of the Ottoman fatwa is Uriel
Heyd’s article “Some aspect of the Ottoman fetva” published in 1969. On the other hand Ismail Hakkı Uzunçarşılı^ and J. R. Walsh established a firm base for the following research. The present study is erected upon the safe ground set up by these worthy previous studies. Nevertheless under the light of new indications in Ottoman historiography and developments in the literature of Islamic jurisprudence and legal anthropology, I believe, the Ottoman fatwa needs to be reevaluated. My purpose, here, is only to suggest some new interpretations for the Ottoman fatwi-making and, perhaps, remind Uriel Heyd’s and others’ pioneering contributions.
2.1. Bureaucratization o f the fatwi-making: fetvibine
If an Ottoman individual, in the second half of the 16*'’ century Istanbul, wanted to receive a fatwa from the chief mufti, he would probably come across a highly bureaucratic procedure. In these days an Ottoman bureaucrat complained about the difficulties and the red tape the fatwi petitioners confronted who came from different
42 regions of the empire.^ From the 16’*^ century onwards there seems to have been an increase in the number of people applying for the legal consultation to the mufti of the
Istanbul.’ The Ottomans, perhaps in order to cope with the increase of the applications, established a special department, later called Fetvahane ox Fetva Kalemi.
The department was set up as a special bureau in order to provide an assistantship for the şeyh ül-İslims in fatwa issuance. The bureau was executed by a group of clerk directed by a supervisor called fetva emini. Under his supervision the personnel was constituted by different officeholders such as draftsmen {miisewid), collators imukâbelecî), copyists {miibeyyiz) and delivery servers (müvezzf).^ The department was subordinate directly to the miiftT. The personnel was nominated by the
■'Uzunçarşıh. (1988): 173-214. " The author of Hirz ül-mülûk idealized the office of Şeyh ül-İslim Zenbilli 'AIT Efendi (o. 908/1503 - 932/1525-26) and claims that during his office it was much easier to receive fatwis from the şeyh ül-İslâm for the petitioners: ‘’'Bu va^^dan maksüdı mahza’ fukara’ muntazir olmasun dirnek imüş. F ii-vikf anım zamanında etraf ü eknâfdan fetva içim gelen fukara’nun hemân ol gün maglahatı hâşl olub, irtesi çıkub gidüb m üûi kapusunda intizâr çekmez im işf p. 192. It is obvious that the author gives this information to compare the worse situation in his time. ’ Ottoman biographies mentioned the superhuman zeal of the müftîs to answer many numbers of petitions. 'Aşık Çelebi is said to state that Ebussu'iid Efendi once signed 1.410 fatwis in a one day. This information was recorded by 'A ti’T (p. 186) and Hezirfenn (f. I38a). Hoca Sa'deddinzide H id Mehmed Es'ad Efendi (d. 1034/1625) who held the chief müftiship between 1032/1623-1034/1625 once wrote a letter to the Governor of Kütahya and complained about the high numbers of the fatwi applications. He wrote that most of the days he had to sign about 2(X) fatwis. (Süleyminiye Library, Şehit Ali Paşa 2865, pp. 93-4; The letter was also mentioned by Uriel Heyd. (1969a): 46, note 104.). * Uzunçarşıh, i. H. (1988): 197; Heyd, Uriel. (1969a): 47; Berki, A. H. (1970): 426-7.
43 mufti himself and most probably appointed with the approval of the sultan.^ It was also recorded that some of the fetva emïnis were the graduate mülâzims of the chief mufti.
A specific date for the inauguration of the fatwa department has not been established yet. Nevertheless we know that the Ottoman şeyh ül-İslâms had always been assisted by various substitutes especially in their absence." However throughout the ló*"^ century this assistantship seems to have been gradually institutionalized as a stationary bureau, namely the fatwa department. With the consolidation of the assistantship the fatwa-making process acquired a bureaucratic character. An indication of the institutionalization of the department might be the appointment of the permanent personnel.*^ The first fetva emini, according to Mehmed Vâmık Şükrü Altınbaş,'^ was
Mehmed Muhyiddin Efendi (d. 951/1544-5) delegated by Şeyh ül-İslâm Zenbllli ‘^Ali
Efendi during his long indisposition." After Mehmed Muhyiddln the fetva emâneti seems to have become a perpetual office in the clerical circles.*^
^ It was recorded that the first fetva-emini Mehmed Muhyiddin Efendi was nominated by the chief mufti Zenbilli ‘All Efendi and appointed with the approval of the sultan. (Altınbaş. (1963); II, 12: 17). Repp, Richard. (1986): 52; ‘Ata’i: 57, 290, 566. " It was recorded tliat Zenbllh ‘Alt Efendi appointed eight doctors of Islamic law from the Sahn Medrese to issue fatwas in his absence when he performed the pilgrimage from 909/1504 to 910/mid-l504. Repp, Richard. (1986): 207; Also see Altınbaş, M. V. Ş. (1963), II, 11: 25. " Weber, Max. (1996): 293-301. " (1963), II, 12; 17. M. V. Ş. Altınbaş’s entire study on the fetva emins unfortunately has not been published. It was housed as a manuscript in Diyanet İşleri Başkanhğı - Ankara. Only the introduction of the book was published in Diyanet Dergisi (1963), volume II, 10,11,12. " It was recorded that when Zenbllli 'Alt Efendi became disable owing to his illness, since Sultan Süleyman did not want to dismiss him, a decree was issued to appoint a delegate (k i’immakim) to represent his jurisconsulship. Altmbaş. (1963), II. 11: 26.
44 A story about Zenbilli “^Ah Efendi may give some clues about the
institutionalization of the fatwa department. According to Ta$koprüzade (d. 968/1560-
1) the nickname “Zenbilli” of Meluned el-Cemall was drived from the fact that
during his muñlship he used to dangle a basket {zenbfl or zem bTl^^ from one of the
windows of his house. The petitioners would put their queries in the basket and pull
the rope. The muftT would elevate the basket, write his fatwa and suspend the basket
back to the petitioners. With this basket method the petitioners used to receive their
faiwas instantly without any charge {raygm)}^ This .story might have been transmitted
to exemplify the informal practice before the establishment of a more complex
_ __ t n procedure of the fatwa department for the fatwa issuance. We know that by the end
of the 16*** century the fatwi issuance by the fatwa department was not free and it often
took quite a long time (nearly one week) for a single fatwa to be prepared.*^ It seems
that the fetvahane had not been consolidated as a perpetual bureau before the muftiship
of Zenbilli “^Air Efendi. On the other hand we know that Ebussu*^ud Efendi wrote a
Nevertheless even after Muhyiddin Efendi there were a few intervals without any fetva emini. Altınbaş. (1969): II, 11:24. 16 Original Arabic form is “zinblE Taşköprüzâde: 422-30; Mecdl Efendi’s translation of Taşköprüzâde’s al-Shaqa’iq. ‘'\..bir yiiks^'k yerde oturub penceresinden aşağa bir zenbll asar idi. MUsteâr olan kimesne müşkilini yazııb zenbll içine bırağub zenbllin ipini tahrik ider idi. mevlânâ hazret[lerji bu valf dan agâh ohcak zenblli çeküb ve nkfjayı gördUkden sonra cevâbım altına yazub yine zenblli aşağa koyı verir idi. Bu tarik ile zümre-i müsteûiyân râyegân cevâblanm alub az zamânda makşûdlanna vâsıl olurlar id i.” Mecdî: 305. Also see: Ihrz ül-mülûk: 192; d’Ohsson, II: 266-7. Repp. Richard. (1986): 197. Heyd, Uriel. (1969a): 46-7. For a similar evaluation see Repp, Richard. (1986): 197, note 2. ” Hezârfenn: 136b-7b; Heyd. (1969a): 46-7; Berki. (1970): 426-7; Uzunçarşdı. (1988): 195-199.
45 treatise for the fetva emlnis and scribes to give some instructions on the procedure of
the fatwa issuance and on how to transcribe appropriate format.In the treatise
Ebussu*^üd alludes that the fatwa department was a perpetual bureau with an
established managerial system and definite office hours. We also learn from the
biographies that the earliest fetvi emini was probably M e^ed Muhyiddln Efendi
appointed during the last days of Zembllli “^AIT Efendi (ca. 932/1525-6). However the
appointment of a fatwa emTni may not necessarily refer to the establishment of the
fatwa department as a bureaucratic bureau with the settled mode of executive system.
The formation of the department as a perpetual bureau with its own functionaries and
bureaucratic style was, no doubt, a gradual process. As a result I think it would be
legitimate to suggest that fatwa department must have been solidified some time
between the offices of Zembllli ‘^AIT Efendi (d.932/1525-6) and Ebussu'^hd Efendi
(office 952-982/1545-1574) in the mid sixteenth century.
Fetva emTnis were acknowledged as the experts on Islamic jurisprudence, basic
authoritative fiqh and furu*^ manuals^^ and fatwi compilations {Fetva Mecnw‘asi) used
Fetva Eminlerine Tenbîbîer:. One way to understand the gradual fabrication of the department might be to analyse the transformation in the technology of writing (linguistic structure, internal and external style) in the müttls’ fatwas throughout sixteenth century. This is beyond the scope of the present study in this stage. Şeyhi records that Müvezzi' Ahmed Efendi (d. 1089/1678), who was the fetva emini to Şeyh ül-İslâm Behi’î Efendi, in the period when he served as fetva emini, consequently became well- versed in fiqh. Uğur. (1986): 455. “BaZraVEfendi merbüm zammmda fetva b ile ti takribiyle fikba atamm intisabı ve ol fenn-i celüden vâye-i nisabı var idi." Şeyhi: vol. 1, p. 444. Similar evaluation is made for Şeyh ül-İslâm Esiri Mehmed Efendi, when he was fetva emini to Şeyh ül-
46 in the department.^^ During his career he became a document specialist^“* so as to
formulate appropriate fatwas for different legal problems.^^ The career lines of the
fatwi emins diversify. Frequently they held the office fetva emâneti while they were
young graduates waiting to be appointed (mülâzım) müderris or kadi by the nomination
of the chief muftis. For example Ahmed Çelebi (d. 994/1586) received his mülâzemet
from Ebussu'^ud Efendi when he was serving Ebussu'ûd as his fetvâ emini.*AtâT
records that Ceziret ül-‘^Uşşâk püssâm Efendi (d. 1018/1609) obtained his mülâzemet
from Şun'^ullâh Efendi (d. 1021/1612) in return for his service as fetvâ emlni.^^
Similarly Çolak Mustafâ Efendi (d. 1045/1635-6) who performed as a fetvâ emini to
İslâm Yahya E f e n d i : fetvâ emini olmağla fıkha atamm intisâblan vemesâ’il-i furffdan vâye-i nişâhlan varidi'' Şeyhi: vo. 1, pp. 479. Uzunçarşıh gives a list of the most used fatwa compilations {fetâvâ) in the fetvahane: In the 16'^ century the compilations of şeyh ül-îslâms İbn Kemâl (d 940/1534), Ebussu*^ud Efendi (d. 982/1574), Mü’eyyed-zide 'Abdurrahman Efendi (d. 922/1516), Sa'dI Efendi (d. 945/1539) (Feiivâ-yı Sa^diyyd) and Hâmid Ahmed Efendi (d. 985/1577) {Fetâvâ-yı Hâmdiyye) were the most popular collections. İn the n**“ and 18"^ Fetâvâ-yı Minkârl-zâde ty\s,o known as Fetâvâ-yı ‘^Atâ'uHâh) by Minkârl-zâde Yahya Efendi (d. 1088/1677), Fevâvâ-yı Ankaravl hy Ankaravf Mehmed Emin Efendi (d. 1098/1687), Fetâvâ-yı ‘Ali Efendi by Çatalcalı 'Ali Efendi (d. 1103/1692), Fetâvâ-yı Feyziyyehy Seyyid Feyzullih Efendi (d. 1115/1703) and Behçet ül- Fetâvâ hy Yenişehirli 'Abdullah Efendi (d. 1156/1743-44) were used by the fetvâ emîns. (Uzunçarşıh. (1988): 197). For example fetvâ emini Mustafa b. Ahmed Efendi was known as a specialist in document making (şukük) among the lb"" cenrury 'ulemâ’. 'A tâ’l: 566. For the documentary nature of the fatwa see al-'Ayntâbl. "...Ebussifud Efendi hazretlerinin fetvâ emâneti bidmetinden mülâzemetle vâşıl-i merâm olmuş i d i' 'A tâ’l: 290. . .şeyh öl-îslâm Şurfullâh Efendi ^dmetinde kâ’im ve fetvâ emâneti mukâbelesinde mülâzım olmuş idi." 'A tâ’l: 569.
47 Şeyh üi-İslâm Yahya Efendi (d, 1053/1644) in his second term (1034-1041/1625-1632)
became the mülâzım of Yahyá Efendi. In 1044/1634 he left his fetva emini office and
was appointed mufti of M an isa.BalTzide EmTnT Ahmed Efendi (d. 1072/1662)
likewise was received his mülâzemet from Şeyh ül-İslâm Bâlizâde Mustafa Efendi (d.
1073/1662-3) whom he served as fetva emmi. However the fetva emaneti does not
seem not to be a regular stage in the career lines of the Ottoman learned hierarchy.
Some fetva emTnis were also appointed müderrises and kadis while they continued their
offices as fetva eminis. Mustafa Efendi (d. 1093/1682) when he was appointed
müderris to the Segban 'All Medresesi, also became the fetva emîni to Minkârîzâde
Yahya Efendi (d. 1088/1677-8). Thereupon although he changed six medreses, untill he
was appointed kadi of Salónica in Ramazan 1084/1672-3, he continued his office as
fetva emini almost for three years. During this period he performed as fetva emîni both
to M inkârîzâde Yahyâ Efendi and Çatalcalı *^Alî Efendi (d. 1103/1692).^® By the same
token Ankaravî Mehmed Emîn Efendi (d. 1098/1687) when he was appointed to the
Cezerî Kâsım Paşa Medresesi, also was commissioned as fetvâ emîni. During his
academic career in different medreses of Istanbul he also continued to perform as fetvâ
emîni almost for six years. When he was assigned to the kazâ’ of Yeftişehir in Reb. I.
1074/1663, he left his office in the fetvâhâne. On his return to Istanbul he was
designated as fetvâ emîni for the second time. Interestingly enough when he was
appointed kadi of Bursa he preferred to retain the office of fetvâ emîni and was allowed
28 Şeyhi (Ugur’s ed.): 22. Ibid,: 249. Ibid,: 525.
48 to have its duties in Bursa performed by a n i’ib.^* Sometimes the muftis designated
the fetva emînis among their close companions during their careers. Küçük BoluvT
MuvStafa Efendi (d. 1081/1670-1), who was the fellow-townsman of şeyh ül-İslâm and
kidT'aker BoluvT Muştala Efendi (d. 1086/1675), served as mektúbcu when he was
kadT‘^asker and later as fetva emini when he was şeyh ül-İslâm.^^
The office of fetva emini was very prestigious in the Ottoman bureaucratic and
learned circles. Beside the title of fetva emim' they were also entitled as ‘’’’şeyh üî-
İslâm kayim-makâmı" (representative of the şeyh ül-İslâm). In the n*** century most
of the kadis of Istanbul came from this particular office. Some şeyhü’l-îslams, such as
EsTrT Mehmed Efendi (d. 1092/1681)^^, AnkaravT Mehmed Emin Efendi (d.
1098/1687)^^ Mehmed "Ata’ullah (d. 1127/1715)^’, Yemşehirli "Abdullah (d.
1156/1743/4) performed as fetva emlnis somewhere in their careers. Especially when
the şeyhüT-İslâm became more engaged in the state affairs, the office of the fetva
emini gained further importance. In a study on the fetva emTnis, 69 emTns have been
.yedmiş yedi şevvalinde salaf-i sâlifden Dâmâd Efendi yerine maJ^se-i Bursa kazasıyla tekrim-i tanım olunduklarmda kendüler emânetde karârdâde olmalarıyla tarailaımdan nâ’in irsal olunmak üzere takdim olundular. "Şeyhi: vol. 1, pp. 545. Şeyhi (Uğur’s ed.): 352. Heyd (1969a): 48. ^ Uzunçarşıh (1988). Şeyhi: vol. 1, pp. 478-9; Uğıır’s ed.: 501. Şeyhi: vol. 1, pp. 543-545; Uğur’s ed.: 501. Şeyhi: vol. 2, pp. 372-4. Heyd (1969a): 49.
49 identified in comparison to 124 chief muftis.^’ This incongruity may refer that the
office of fetva emini was a much more stable position than the office of mufti who was
also a political figure involved in the political games of Istanbul.'^*^
The department was administered in a bureaucratic modus operandi mediating the relationship between the petitioners and the mufti. The first step, for a petitioner
{mustcfii), was to submit a query to one of the draftsmen {m usew ld) who prepared a rough draft (pusu/a) of the query in the proper fatwa form.·^* The draft, after being corrected by the fetva emini, was transcribed into a fair copy (beyaz) to be submitted to the mufti.·*^ The petitioners’ queries generally were far from a proper construction of the legal problematic they intended to express. The draft was the basic step for reconstructing the question in a proper legal format. The fatwa was mainly composed by two parts, the question (Istlda^ and the reply or ruling {fatw a). The legal problematic of the litigation was formulated in the question section of the fatwa. The answers were generally short, in one word, to affirm or negate the question. Hence the format of the question part was the most critical process of the fatwa-making.
After the fatwa was submitted to the mufti, he signed his ruling (the reply) and sent to the delivery service to hand the fatwa out to the questioner. It is apparent that the muftis did not communicate with all petitioners who applied to the fetvakalemi.
39 Altmbaş (1963). 40 Коса; 497. For the process of the issuing fetva, see Hezarfenn: 137a-b; Heyd (1969b): 39-42; Uzun9ar5ih (1988): 199-201; Berki. (1970).
50 Furthermore it is not beyond possibility that the muftis could not elaborate all fatwas
one by one issued by the department. Some of the rulings might have been determined
by the fetva em lni in the name o f the muftl.'^^
The whole process of fatwa issuance might take a few days, depending on the
number of the petitions and the presence of the muftr.“^ Hezarfenn records that the
department issued 300-400 fatwas twice a week,“^'^ On the other hand a fatwa cost a few
ak9as. Hezarfann informs that in the 17''* century a fatwa from the department was
charged 7-8 ak9as.'*^ The income obtained from the fatwas was distributed among the
personnel in the department and the miiftT did not benefit from it. This is in accordance
with the general tendency in the classical Islamic tradition suggesting that mufti should
fetvaya mütéallik mes’elelerde müsewidlerуаяЬ mübeyyizler beyaz ider ve fetva emini görüb imzâ’ya geleni gönderir, imza* oldukdan sonra mukabeleci görüb m üvezzf bañada iki nöbet üçer dörder yüz fetva te v zi ider... ’’Hezârfenn: 137b. Ali Himmet Berki mentions a practice carried out at the beginning of the 20"" century in the fetvahane. According to Berki fetva emini after determining the rulings put the fatwas into two difterent bags, one is in green, the other is in red. The fatwas put in the green bag were to be affirmed those in the red beg were to be negated. The müftí without reading the fatwas used to put his signature after writing the short ruling. Berki. (1970): 424-5. Miiftls frequently used to travel with Sultans in their campaigns or in their journeys to Edime. We can recall that the müflis were at the same time the personal advisors of the sultans. In this respect, for instance in Edime, near the Old Palace, a special suit was arranged for the mUftls. In a IS"* century text it was said that the chief müfti Yenişehirli ‘Abdullah Efendi used to stay in a special residence arranged for the miiftls “şadr-i fetva olanlara mahşûş hanede.” Râşid: vol. 4, p. 394; Uzımçarşılı. (1988): 195, note 3; Koca. (1994): 497. 45 Hezarfenn: f 137b. Uzuncarsili (1988); 196; 46 Hezârfenn: f. 197; Heyd. (1969a): 52-3; Uzuncarsüi (1988): 197.
51 not benefit any profit from the legal consultation.'^^ The money demanded in the
Ottoman practice must have been perceived as the expense for the bureaucratic process involve in the fatwi-issuance.“** In order to elaborate the process of the fatwa-making in the fatwa department, it would be useful to examine Ebussu*^ud’s treatise written for the fetva emini and the scribes in the department.
2.2. Ebussif ud's instructions for fatwa-waking
One important page in Ottoman fatwi is Ebussu‘^ûd’s treatise. Fetva eminlerine
[or kâtiblerine\ tenbîhler, composed in order to give linguistic and stylistic instructions on how to formulate appropriate fatwa text instructions for the scribes of the fatwa department.'*^ Although the text is not dated, since it mentions Şâh Çelebi,'^*^ Şeyhî
Al-Nawawl in his Adâb a!-fatwi wa’l-muill wa’I-mustafli (Damascus, 1988) states that a mufti should not be paid for his fatwis, rather it is congruous for them to be financed by the pious foundations (waqf) like mudarris: (p. 41.). According to Hezirfenn 7 akças were shared among the personnel, 5 akças for the mübeyyiz and 2 akças for the müsevvid (Hezârfenn; f. 137b-138a). According to a kânûnnâme {Kavmin-i ‘^OsminT ve Rabita-i Asitânâ) used by Uzunçarşıh, two akças for fetvi emini, and the rest five akças to be distributed among the personnel. Uzunçarşıh. (1988): 197. There are a number of copies of the text in Istanbul libraries. The most condensed of those is the one housed in Siileymaniye Kütüphanesi, Hacı Beşir Ağa 656: ίΤ. 240a-b. For an incomplete copy, see: Süleymaniye Kütüphanesi, Esad Efendi 1017: ff. 95b-96a. For a copy transcribed in the margins of the codex see: Siileymaniye Kütüphanesi, Fatih 5427: f. 19b. The copy housed in Siileymaniye Kütüphanesi, Yazma Bağışlar 1009: 205b-207b seems a different version of the text with the same title. Şâh Mehmed b. Hiirrem was the son-in-law of Ebussu'ûd’s son. He was the kadi od Istanbul between Receb 976 /December 1568 and Receb 977/December 1569. He died in 978/1570.
52 Çelebi^' and Ma'^lülzide^^ as kadis of Istanbul, Bursa and Damascus, the text must have
been composed between Receb 976 and Muharrem 977, i.e. in the first half of 1569.^^ In
other words Ebussu'^ud had passed 24 years as a chief miifti when he composed the
treatise.
The text begins with the notifications for the correct spelling of a number of
words. He handles the usage of tâ’-marbüta as a feminine suffix and examines the
related common mistakes especially those of technical words.^ Later Ebussu'^hd
"Ata’I: 137, Heyd(1969): 50.
®Abdulkadir el-mii’ebbedi known as Şeyhi Çelebi, who is a disciple and them mülâzım of Ebussu'iid and later şeyh ül-İslim. He was the kadi of Bursa between Receb 976/December 1568 and Receb 977/ December 1568. He died in Şevval 1002/1594. 'A ti’i: 327; Heyd. (1969a); 50. Se)^id Mehmed b. Mehmed en-Naklb known as Ma'lulzide Mehmed, Ebussu'ud’s mülâzım and then son-in-law, later Şeyh ül-İslâm. He was the kadi of Damascus between Zilhicce 974/1566-Muharrem 977/ca June 1569. He died in 989/1581. ‘^Atâl: 281. f. 240 b; Heyd states that the text must have been composed between Receb 976 and Receb 977 ([1969a]: 50). However 'Atâ’i records that Ma'^lûlzâde was dismissed from the kada’ of Damascus in Muharrem 977 (®Atâl: 281). Thus more accurate date for composition might be between Receb 977 and Muharrem 977. ^ He handles “zevc” (one of a pair, wife or husband) and discusses the usage of tâ ’-marbüta as the feminine suffix. He opposes the addition of tâ ’-marbüta and the usage of for females.
According to Ebussu'iid is to be used for both genders: “ ‘Zeyd'iö zevci Hiad’ diyecek mahalde ya ^Amr’ıS zevci Zeyneb’i’ diyecek mevzide ‘Zeyd’in zevcesi Hiad’ veya ^Amr’ın zevcesi Zeyneb’ dimek hatâ-i faildir. Zirâ ‘^avrata dahi ‘zevç’ deailür. ‘Zevce’ denilmez, tâ lazım dtğildiri f. 240a.
53 analyses the morphology of different words and gives correct spellings/^ He especially examines the phonetic harmony of the words having different suffixes.^^ He also gives the technical synonyms of some popular words and phrases which were highly distorted in the fatwa-making. He suggests al-işbâf (after the proof) instead of “b^ad es-
şubüt" and “havale^ (assignment) instead of ^'sâlyâne." After this morphological analysis Ebussu‘^üd warns the scribes to be careful in using the technical words in the text and alludes that the accurate technical usage of the legal terminology was different from the ordinary usage of common people. 57
Ebussu*^ûd continues his examination with the precise formulations of the legal expressions in the fatwi question. He opposes the construction ^'...talebe kadir olur mi?"
(can he demand...?) and suggests an accurate one, “...taleb idiib almağa kadir oİurmı ?"
(can he collect as he demands...?). He justifies his falsification of the first formulation saying that there is no restriction against demanding (...zira taiebe menyokdur...) thus the question is incomplete and perhaps vulnerable to distortions. Ebussu'ud tried to give a perfect expression of the question to minimise any misunderstanding and any twisting.
He also dismisses the construction ^\..kenJseye vakf." (...waqf for the churches...) since the waqf for churches is invalid (batii). The waqf can be devoted to the people of the
(f. 240a, continues at the end of the text, f 240b)...
Kelimenin ahiri ^ ve * oimayicak aña ilhak oiunmaz. a ve gibi. Ve uzun u-.c ve nazâ'irine ilhak olunmaz, c^--“ gibi deyu kışa ile yazıla zira uzun ve J- ile
‘in mabeynine bir^ ve merkezi düşer, harf zâ’id oiur..?' f. 240a. ” “...sâlyâne dimek gibi, süyâne egerçi "^avamda bilinür amma Şef de havile diyecek yerde istfmiliderler, yanlıştır..." (f. 240a.)
54 church thus the accurate formulation suggested by Ebussu'^üd is “...s/he devoted a waqf to the people [poor] of the church...” {...kenlsenin fukarasma vakf (f 240a). A similar situation is applicable for the construction of “...waqf for Madina and the
Ka'^ba...” {...Medine veK dbe’ye vakf...) which should be changed into “...s/he devoted a waqf for the people [poor] of Madina...” {...Medine’nin fukarasına vakfitdi...).
Another inaccurate formulation, according to Ebussu‘'ud, is “can the executor[s] interfere...?” {...ehl-i*^örf dahl itmece kadir olur mi ?) which should be reconstructed as
“can the exccutor[s] imjustly confiscate one’s property by calumniation...?” {...ehl-i^örf iñirá’ idüb zulmen almağa kadir olur mı ? ). It appears from this construction that
Ebussu'^ud intentionally reformulates the interrogation for a negative answer. Here, the interrogation determines the reply.
He gives other examples for accurate formulations of the question section, such as ''''...ber-vech-i m aktu“^ bey ‘ olunan..! (...that was sold on its value...), “eA/-/ veza’ifden bi’z-zat ed i’-i hidmet itmeyeniñ şehâdeti eâ’iz olur mı ?" (Is the testimony by an official who himself does not carry out his duties, permissible ? ), “...sebeb olana zemân lâzım olur mı ? ”(Is surety necessary (needed) for the one who is responsible...? )
(f. 240a).
Ebussu'^ud warns the fatwa-makers not to formulate misleading questions. He gives an example of an erroneous construction, “What is necessary for a person who did not behave against the Shaif^a...? “ {...itdi^i f f il hilaf-i Şer^ olmayana ne lâzım olur .^“ and alerts the scribes that such a formulation may make one think if something should be done to the person who does not behave against the Shari'^a {...nesne lâzım gelmez iken nesne lâzım olur añlayub yazılm ış olur). Ebussu*^ud states that it is better to
55 specify the question by giving the matter in the query ( ‘o! makule nesne olur mı ’ dem le). Here Ebussu'^ûd seems to prefer the affirmative question (Is A...?) instead of informative (What A...?).
In the treatise Ebussu‘^üd also gives important information about the rules that the scribes were subjected to while preparing fatwa questions. He warns the fatwa emini to prepare the fatwa from the petitioner litigants’ points of view.^* According to
Ebussu'^üd the fatwa is to be prepared only if it is advantageous for the petitioner in his litigation.^^ Accordingly one can suggest that the fetva emlnis or the scribes were expected to thoroughly elaborate the litigation that the petitioner was involved, like an advocate, and meticulously formulate the legal problematic. Nevertheless it seems that the fatwa was prepared by the scribes without elaborating the litigation from the registers or elsewhere but it was prepared only under the light of how the litigant expressed it.
Ebussu^^ud states that the scribes should avoid to prepare detailed and intricate questions in the fatwis.^*^ He also notifies the fatwi-makers to eschew using a florid technical and euphuistic language.*^' Ebussu'^ud seems to be very sensitive about the clarity and intelligibility of the statements. A fatwa seems to have been thought as a document to be comprehended not only by the document specialists but also by ordinary
^\..miidddlcanibinden yazasiz!' (f. 240a) “Ve mtisiefuninyazdugimn kendiiyeia’desi variseyazasizl' (f. 240a). ^ “ Vemufassal fetvayazilmaya." and “Fc ¡¿bid fetvasinda mufassalnesneyazilmayal\i. 240b) Here the term, ''§ahid fetvasi might have been referred to the fatwa to be used in the litigation
(?). ‘\..ve istilâb ve inşâ’yazılmaya!' (f 240b).
56 men. Conformably Ottoman fatwis were relatively simple in language than more professional legal texts. On the other hand Ebussu'^ud warns the fetva emini and scribes not to format any question, in vain, whose answer is very simple and already known without any legal reasoning.^^ He states that it is not their purpose to obtain income from the petitioners.^^
Ebussu'^ud also mentions the relationship between the fatwi department and the other organs of the state. He stimulates the scribes to be vigilant not to prepare such a fatwa that can be used against the state officials.^ He warns the scribes about the kadâ’ of Istanbul and comments that the courts of Istanbul were famous with the legal frauds and distortions. He notifies the fatwa-makers to be cautious not to transcribe any fatwa that can cause a reversion of the decisions given by the kadis, especially those of
Istanbul, Bursa and Damascus.*^ Interestingly enough, as Professor Heyd mentions, the given kadis, Şâh Çelebi, Şeyhî Çelebi and Ma'^lûloğlu were either relatives or disciples of Ebussu'^ud Efendi.*^ However, I think it would be legitimate to contemplate that
Ebussu'^iid might have also intended to anticipate any discord, and initiate a harmony and monotony among the offices of the state by preventing the fatwa department from
“... ve dabi günden biblr olanı ve gayetle meşhur olan su ’ali yazmayasız'' (f 240b). .tahsilitmekmurâd olmayub..r (f. 240b). As it has been mentioned a fatwi issued by the department was charged 7 to 8 akças. ^ “ ebl-i''' örfe...meyl He nesne yazılmaya'' (f. 240b). "Ve İstanbul da‘"vismda bile ve tevzir çokdur. Andan ihtiraz üzere olub ‘alei-huşûş Şâh Çeleni İstanbul’da ve Şeyhi Çelebi Bursa ’da ve Ma‘^Iûloğlu Şam ’da, bu üç pare şehirde kâdinın hükmün döndürmek ve ‘ırzma halel, şânma şine gelür nesneye müte‘^alhk aşla yazman." (f. 240b). See footnotes 50, 51, 52; Heyd. (1969a): 51.
57 preparing fatwás that could be possibly unfavorable for the state officials. This suggestion is also to support my argument that the fatwi department was a bureaucratic office among the others, which was to provide the people with the “legitimate” legal opinions.
Ebussu'^iid gives some information about how the department was managed by the fatwa personnel. He warns them not to send any fatwa to the petitioner with a third person. However he adds that if the query was directed from the sultan or the grand vizier, the fatwa can be entrusted to the depositories sent to the department for delivery.^® From this statement we also learn that the fatwa department did not function only for private application of the people, but also as a bureaucratic department which sometimes served the high officials and the sultan for legal consultation. Ebussu‘^ud notifies that the personnel should be ready every morning even if the mufti may not be present.^^ Accordingly it would not be an overstatement to claim that the fatwa department was managed as a perpetual bureau with determined office hours. Having examinied the characteristics and working of the fatwa department, now I want to analyze the textual characteristics of the Ottoman fatwa, especially those issued from the department.
“Fe aşlâ elden fetva göndermen. ”(f. 240b). ‘‘‘"Egerçipâdişâh ’dan veyâ vezirden olur siz de oğlanlara havâ/e eylesiz, kanşmanf (f. 240b). ‘‘'M üûl bir sabâb bir ibtiş âm namaza taşra çıksa ve eğer vaktinde hâzır olmağa kudret olmasa da ber her takdir her sabâh hâzır olasız.” (f. 240b).
58 2.3. Textual components and visual image o f the Ottoman fatwa
In order to understand the fatwa as a legal and, perhaps, as a bureaucratic instrument it is worthy to analyze the characteristics of the fatwa format in its original form. Through centuries the Ottoman fatwas issued through the fatwi department, in their original shapes, seem to have a common mode of configuration in terms of visual image, arrangement of the components and textual construction. Here I intend to examine an ideal type of lb**“-!?*** century Ottoman fatwi form with reference to its external and internal features.
The Original fatwis are most commonly scribbled on small sized pieces of paper'® (.see pictures 1-12). Most of the fatwis of the chief muftis are transcribed on high-quality, attentively glazed, chain/laid European papers.’* The papers contain a variety of watermarks. From the paleographic point of view, the Ottoman fatwis seem to be transcribed in a variety of scribal hands. In the 16*** and 17*** centuries the predominant script seems to be neshi some times with elements of divâni picture
8). The Ottoman td^Ilq {nastflld) also seems also to have been used very often.
Especially the reply sections transcribed by the muftis are generally written in Ottoman td llq (see picture 7). An Ottoman fatwi is composed of five basic components; the
™ According to Heyd most standard size is 9-10.5 cm. (1969): 37; See the stocked fatwis in the fatwi albums: Siileymaniye Kütüphanesi, Şehit Ali Paşa, 2865-8; Fetâvâ-yı Yapıştırma, Süleymaniye Kütüphanesi, Fatih 2419 and [Fetâvi\ in Efdal Batmaz private library-Ankara (I am grateful to Dr. Efdal Batmaz of Ankara University permitting me to work on his illuminating fatwi album see picture 10-12). One can also come across fatwis in different sizes such as 19-22.5 cm., 12-16 cm.,15-17 cm., 22-10 cm., 18-7 cm., 25-31 cm.,...
59 invocation {da^vef), the question {istifiaVmes’ele), the reply {fetva/el-cevab), the
signature {im za^ and references {naki).
da ‘vet : The invocation is transcribed generally at the top of the paper (see
pictures 21). It is always in Arabic and selected among the standard prayers. In the 16*''
and 17"* centuries the most preferred prayer by the Ottoman muftis seems to be
Allahumma ya wahy al-isma wa'I-tawfiq nas’aluka al-hidaya ila sawa’ al-tarrq' (O
God, O fountainhead of infallibility and success, we ask Thee for guidance on the
straight path) (see pictures 5 and 6). Professor Heyd mentions that from the second
half of the 18"* century shorter invocations became preferred by the fatwa-makers, such
as ^"ntinhual-tawftq" (From Him (God) success) (see picture 19).^^ Rarely the standard
wording huwa (He/God) seems to be used as an invocation.^“*
İstiûâVmes'ele. The question section is most often entitled with the word
“m e s’ele' (problem) and occasionally with ‘‘"su’aJ” (question).’^ The section sets out
with a formula such as mes’cle huşüşmda e ’imme-i Haneûyyeden cevâb ne vech
See the individual fatwas in the album Fetiva-yi Yapjştmna. The Ottoman invocations seem to be different from the Arabic counterparts both in terms of calligraphic style and content. (Heyd. (1969a): 38. While the Mamluk fatwas predominantly carries başmala (picture 13-14) or bamdala (picture 15-16) as invocations, the Ottoman mûftîs seem to have preferred difterent and longer invocations such as AHihumma yâ wally al-isma wa Ί-tawffq aas ’aluka al-bidâya ilâsawâ’ al-taiiq. Heyd. (1969a): 39; see also Uzunçarşıh. (1988): 201. Heyd refers to the fatwas of Ebussu'ud in Süleymaniye Libr. Şehit Ali Paşa: 2867, f. 6b, 7b. ’’ Düzdağ: p. 130.
60 iledir ki..r^^ (picture 1), “¿ı/ mes’ele babında ne buyururlar k i." (picture 2) or
'’'e ’imme-i din işbu mes’ele beyânında ne buyururlar ki. In the earlier periods,
however, some standard Arabic phrases seem to have been used by the Ottoman muftis
such as “a ’/mma al-dTn wa ‘’ulama’ ahl al-yaqin ridwan Allah [tâ’âlâ\ “alayhim
acmâ’rn^^^ The opening formula, which generally shapes into a demarcating line from
the top of the main text, slightly spirals to the upper left above the decorated
invocation. Invocation and opening formula are the most stylistic visual components of
the fatwa.*^“ Both are highly illustrative, generally illegible and sometimes sprinkled
with gold (picture 3).*' Professor Heyd judiciously compares the invocations with the
Sultans’ t uğraş or the pençes of the high officials (see pictures 1-10). On the other
hand the calligraphic arrangement of the opening formula seems to be very similar with
the artistic calligraphic style of the nişan section in the Ottoman diplomas {berat)P
“What is the reply of the Hanati Jurists concerning this problem. “What is the reply concerning this problem.” “What is the reply of the jurist concerning this problem.” 79 Heyd (1969a: 39) and Uzunçarşılı (1988: 201) give different formulas of Arabic invocations such as '’Allihum yâ wall al-uşmat wa'1-tawüq nas’alaka al-hudiyati ilâ sawâ’ al-taifq" '"humât al-dln al-qawim wa-budât al-şirât al-mustaqim min arbâb al-fatwâ wa-asbâb al-taqwâ yassar AHâb labum tarïq al-buda’,... As a comparison with the Mamluk fatwâs see pictures 13-16. 81 Heyd. (1969a): 40. 82 Ibid. 38. The illustrative transcriptions of the first lines {bu m es’ele...) of the question sections in the fatwâs are surprisingly similar with the calligraphic style of the nifân section of the sultanic diplomas. (Compare pictures 1-10 and 17.) Both styles seem to be produced lïom the same bureaucratic stylistic proficiency.
61 The opening set-phrase is followed by the exposition of the case. The exposition
which is the most important section of the fatwa. Accordingly, it would be interesting to
indicate that the question section is most of the time entitled as m e s’ele (Problem),
rather than su'al (question).®“^ The legal problematic is expressed in this section. As I
have mentioned above, the query submitted by a petitioner was generally far from a
legal configuration, thus the question should be reconstructed in a proper legalistic
discourse in order to minimize any misunderstanding or misinterpretation of the legal
problem.^^ Most of the fatwas were prepared to be used in the legal transactions in the
Ottoman courts.^^ Therefore the fundamental intention behind the fatwa-making seems
to have been to expose the legal problematic as clear as possible so that both the litigant
and the kadis could properly grasp the legal problematic transposed in the fatwa. The
kqdis would compare the legal problematic in the fatwa text with the real case in the
court.*’ After comprehending a concordance between the problematic of the fatwa and
the real litigation, the kadi would decide in accordance with the fatwa.** Thus clarity
and intelligibility are the basic principles for the exposition of the problematic. Any
*■* In English translations, generally, mes’ele is represented with question.(hvibei. (1981); idem. (1982); idem. (1993); idem. 1994a); idem. (1994b).) I think problem is more accurate transition. “ al-'Ayntibî: f. 21b. Gerber. (1994); 77-112, especially pp. 92-94. In the court records and miihimme defters some sultanic decrees clearly declare that the kadis should carefiilly compare the case expressed in the fatwa and the real litigation in the court: “ kadfsina büküm ki...ve fetvâ-yı şerîfesine nazar idüb göresin, ‘arz üzere olub fetvâ-yı şerife da‘vaswa mutabık ise..." MD 90/188. For similar decrees see MD 90/ 9, 116, 278, 346... ** al-'Ayntâbî.
62 erroneous or obscure statement in the problematic would lead to mislead in interpreting
the real litigation under the light of the fatwa.
The legal problematic is formulated most often in an abstract form as a generic
description with fictional names.^*^ It is generally constructed without any reference to
time and space.^*^ The hypothetical names used in the fatwas were selected generally
from the common Muslim names such as ^Amr, Bekr, Zeyd, Halid, Velld, Zeyneb,
Hind..?^ Occasionally in some fatwas there are some references to the real persons and
real events. These fatwas mostly seem to have been mostly issued in order to inform the
public opinion about some immediate developments. 92
89 Masud, Messick and Powers. (1996): 23. There are some exceptions to this principle especially in the fatwas submitted to the sultans. In söme fatwis, rarely though, there can be some references to some particular events, persons or place. See Hoster: 65. Generally Muslim names were used for botli Muslims and non-Muslims. Nevertheless Uriel Heyd mentions that in some fatwas Christian and Jewish names were also used for non-Muslims such as Nicola, Yani, Mihal, Maria, Matruka, Elia...(Heyd. (1969a): 41) For example in the first half of the 16"' century the people of Istanbul became acquainted with a yoimg preacher. Oğlan Şeyh who was perceived as a threat by the Ottoman state-men owing to his critical public sermons (Ocak. 1986): 37-8; idem. (1990). He became a public hero in a short time in the popular imagination. In 1529 when he was executed with the fatwa of İbn Kemâl, a new discussion started in the public opinion about his martyrdom. Accordingly through the 16"’ century the miiftls issued various fatwas concerning Oğlan Şeyh: Problem: What should happen to the one who declares “formerly the one known as Oğlan Şeyh was executed unjustly” ?
The Answer: If he is in şeyh’s path he is to be executed. Ebussu'^ud.
{Mes’ele: ‘Sabıkan kati olunan Oğlan Şeyh dedikleri şâhıs, zubnen kati olundı’ diyen Zeyd'e ne lâzım olur ? El-cevâb: Anın meribebinde ise kati olunur. Düzdağ: 196.) Fatwas were very efteetive in manipulating the public opinion. Katib Çelebi in Mîzân ül-hakk records that the
63 Nevertheless most of the fatwas seem to have originated from real cases of
O'! — everyday life. ' The essential profession of a fatwa-maker was to transpose the mundane litigation into a legalistic abstraction.'^'* The draftsmen reconstructed the abstract expression of the problematic under the light of some modalities in some instructions.^^
The reason behind the abstraction of the real litigation in the fatwa seems to have been that a fatwi was issued not only as “ephemeral legal opinion for immediate purpose but also as an authoritative statement of the law transcending the individual case.”®*^ We know that most of the fatwas issued by the muflTs were compiled into collections
{fatâwà / fetâva) by the disciples to be used for later legal problems.^’ Wael Hallaq recently has demonstrated that the Islamic substantive law {furiF) was consolidated through the gradual incorporation of the fatwas into the canonical texts.^*
The problematic in a fatwa was scrupulously summarized in a long sentence as an exposition of the case. The question section is usually constructed in a conditional different fatwas were hung on the walls of the mosques about tobacco and the people of Istanbul followed the legal discussion among müflis from the these small pamphlet-fatwas: Gökyay’ edition: 39-40. For an analysis on the relationship between fatwi and social praxis see: Hallaq. (1994) and Powers. (1990). For the characteristics of the Islamic legal documents see: Also see Wakin. (1990), especially p. 30; Mesick. (1990), especially p. 70; Schacht. (1964): 193. For the abstracting the real problems into a fatwi form an its importance for itti’ profession see the adab al-muffi literature: NawawT, Majmü‘, vol. I: 47-60; al-*Ayntibi: f 10a-15b; Ibn al-Salih, vol. I: 72; Among modems see Hallaq. (1994): 34; Powers. (1990): 303-311; Masud. (1984); Messick. (1986). Reinhard. (1994). Fetva eminlerine tenbibler is one of these instructions. Hallaq. (1994): 34. ^ For the incorporation of the fatwis into the positive law {fvrif ) see Hallaq. (1994). Hallaq. (1994).
64 sentence consisting of two main statements, prótesis and apodosis. The prótesis makes an assumption (“If A...”), whereas the apodosis directs a question about that particular assumption (“...then is B...?/...then what B...?”). The condition reflects the legal problematic which the question is about, or in other words, the question is directed under the given condition(s). Most often the prótesis consists of more than one conditional clause depending on the complexity of the problematic in question. The prótesis and apodosis are joint by different conjunctions such as '"‘'sonra'^, '‘‘'-dukda/- diikdc'^^, "'-icak/ -icek”^^^...·.
I f the non-Muslim Zeyd divorces his non-Muslim wife Hind in the religious court, is Zeyd again able to possess his ex-wife by claiming “there is no divorce in our religion”
After Hind gives his husband Zeyd a female slave {câriye) as a gift {hibd) and the slave gives birth to Zeyd’s baby [babies], //H ind denies the gift without
any proof, /a’babies’ descent conformed ?’^
-after” "Zcydd Yahûdîbirmaşlahât içün İstanbul'dan Galata 'va vardıkda,A m r-ı aaşrâaî '‘üzerinde hakkım var Galata kâdîsına varalım ” dedikde. Zeyd “benim kâdilığım İstanbul kadısıdır ana varalım” dimege kidir olur mı?” (Düzdağ: 99) The suffix -dukda {-dukde) was used as a conjunctions in the meaning of “when, while, after doing [smth]” in Ottoman Turkish. Timurtaş. (1994): 139. “Zeyd ‘Amr’a “gel Şerfat'a gidelim” dişe, “^Amr “beSi kidlnin hükmünü tutmazın dişe ne lâzım gelir”SqWq\ 23. -se/-sa is the suffix functioning as a conjunction in the meaning of “if.” Timurtaş. (1994): 131. “Berş ve afyon ve ma 'cm ki içinde esrâr ola, mertebe-i eskere varmavıcak barâm olur mı? ” Düzdağ: 145. -ıcak/icek is the suffix giving the meaning of “when, while doing [smth].” Timurtaş. (1995): 139. “Zeyd-i pmnv zevcesi Hind-i zhnmJyeyi meclis-i şefde uç talâk boşasa, bddebu “bizim dinimizde beş olmaz” deyu yine tasarrufa kidir olur mı?” T>üz6sig·. 99.
65 In some fatwas, relative clauses are used to express the condition. This type of question is used in a relatively simple problematic that can be expressed in one ore two clauses:
Is Zeyd’s profit lawful, who is accustomed to selling opium and hashish
The Ottoman fatwa-makers seem to have frequently preferred to formulate the condition with the direct expressions of the fictitious litigants in the fatwa:
Problem...: If Zeyd murderes ‘^Amr and then disappears, Bekr, the father of
Zeyd, pays an amount of money in lieu of peace to the heirs of 'Amr and
concludes a settlement, is Bekr able to say '‘‘give the amount o f money I paid in
lieu o f peace back and then bring Zeyd before the court
In this particular fatwa the fatwa-maker formulates the interrogation with the direct speech of Bekr. Although the questioner seems to ask if Bekr is able to say
“give...”, in fact the quotation is exposed instrument ally to ask if Bekr is allowed to behave as he speaks. Exposing the direct speech of litigant seems to be a common technique for textual con.structions of the documents, frequently applied by the Ottoman
104 Zeyde bir câriye hibe edib, Zeydin câriyeden veledi oldukdan sonra Hind hibeyi inkâr idib, beyyineden ^âciz olsa evlâdmh Zeydden nesebleri şâbit olur im T Düzdağ: 121. '05 “ 'Afyon ve esrârbey itmek âdeti olan Zeyd’in kesbi helâl olur mı?. ” Düzdağ: 145. "mes’ele: Zeyd "Anm kati idib ğaybet ittikten sonra, babası Bekr verese-i ‘Amr’a bedel-i sulh bir mikdâr akça verüb sulh eylese, sonra "verdiğim bedel-i sulhumu verin sonra Zevd'den difva idin "demeğe kâdir olurım'.' Düzdağ: 157.
66 document specialists. The same technique is used in the sultanic decrees and court registers {hiiccet and flani) as well.’*^* The quotation of the direct speech might reflect the original remarks in the real query of the litigant. The fatwi-makers seem to have posed some expressions of the petitioner into the fatwa-construction to make the istifta’ more concordant with the rudimentary petition and perhaps to make it more compact.
The question is intentionally fabricated for brief answers expressed often in one affirmative or negative wording. From the second half of the lb'** century on, with the gradual consolidation in the professionalization of fatwa-making in the fatwa department, the fatwa-clerks seem to have been highly experienced in question- formulation. They became notably skilled in constructing long and precise questions providing the muftis with giving merely affirmative or negative shortcut answers. The fatwa-maker was expected to expose the question with a format in which each condition was expressed so that the mufti did not need to give his reply with further conditioning or explanation. The professionalization of the fatwa-elerks in falwa-making seems to have unloaded the burden of the muftis in fatwa issuance, especially for the private applications of the Ottoman people. With the precisely formulated questions by the fatwi clerks, the muftis were saved from giving long stipulative explanations in their replies:
107 ...ZiilkadJr aam kimesne bab-i adet m e’abima ‘arz-i hal idiib ‘zaviye-i mezbüreniS vakûyyesinin ¿şânnda Mehemmed nâm kimesae bizim tımarımız toprağmdadır’ deyu dahi idüb... ’’Ankara, sicili: 2/ 739. "'...cümle cami’ti "bu huşûş içün lazım olan harcı iken cümlemiz eda idelüm’ demişler idi. Halen ‘muhalefetiderim’deyu...”Ankara, sicili: 2/1298.
67 Problem..: If Hind dies and her guardian Zeyd who can subdue the property of Hind also dies, Halid, the brother of Hind from her father-side, claims the right to heritage, Bi?r and Bekr testify Halid’s right to heritage before the representatives of other heirs of Hind, the judge adjudges the right of Zeyd to heritage, but when there is not attack to Halid’s having his right to heritage, he grasped the entire property then 'Amr comes and claims that he was the husband of Hind and Bi?r and Bekr testify also '■'Amr’s right to heritage, is the agent of the judge (na’ih) able to disregard the testimonies of Bi$r and Bekr by saying ‘When they formerly testified Halid’s right to heritage they did not mention 'Amr’ {...kadirolurmi) ?
The Answer: He is not {plma^^- Ebussu'ud, 109
Most of the time the question section ends with the wording ''\..olur such as zekât lâzım olur, ‘\..şer‘^an câ’ı'zolurmi “...kâdir olurmı?”^^^.
The reply of such questions would be in one word '"olur ” (affirmative answer) or
olm az" (negative answer):
'^Hind fevl olub milmi zabt için vaşT olan Zeyd dahi fevt oJub Hind-i mezbûreniü li-eb kanndaşt olan IJâlid veraset dâva idüb Dişr ve Bekr Hind-i mezhûrun virişlerinin vekilleri mahzarında Hâlid-i mezbürun verasetine şehâdet edüb hâkim verasetine hükm eylese, amma verasetinin inbizânna tâarruz olunmayub Hâlid cümle mâlı alıb kabz idüb bâdehu ‘^Amr gelüb Hind’in zevcim deyu dâvâidüb Bişr ve Bekr onun dahi verâsetine sehâdet eylediklerinde Nâ’ib üş-Şef ‘zikr olunan kimesneler evvelâ Hâlid’in verâsetine şehâdet eylediklerinde ‘Amr’ın verâşetin Hkr eylemediler’deyu şehâdetlerin tutmamağa kâdir olur mı? el-cevâb: olmaz - Ebussâûd. “ Selle: 46. “Olurmı" is a third person to question as “is it ?” Ill ‘If...is alms necessary?’' “If ..is [it] permissible according to the shari'^a ?” ” ^“If..is [s/he] able to...?”
68 Problem...: If Zeyd makes his debtor 'Amr be imprisoned by the asher Bekr under the supervision of the judge however 'Amr escapes from the prison supervised by the ushar Bekr, is Zeyd able to receive his money from Bekr {...kadir olur mifl
The Answer: He is not. {olmaz) - Ebussu'ud. 114
A different construction of the question section is formulated with the final wording of “.../7e lâzım This is an informative “what” question and the answer should be inherently explanatory. This kind of interrogation is generally used for criminal cases to ask mufti the penalty that would be executed under the condition explained in the fatwa:
Problem...: What should happen, according to the Shar'^at, to the non-Muslim '■Anır who commits adultery (zina) with the Muslim woman Hind who is the wife of the Muslim Zeyd ?
1’hc Answer: If he converts to Islam, he escapes execution. Hind is stoned, if she is complaint. 116
Sometimes after the reply of the mufti to the first question, a second supplementary istifta’ is directed to the muflT. Occasionally more than one supplementary questions are directed in the same fatwa. These questions most often
“Mes'cle: Zeyd medymi ‘^Amr'i m^rifet-i bakimle Bekr-i muhzıra habs itdirmekde ^Amr Bekrin bahsinden balâş olub kaçsa, ondaki akçasm Zeyd Bekr’den almağa kadir olur mı ? El- cevâh: Olmaz. -Ebussıf üd." Selle: 28. “...what should happen to..” or “...what is necessary (required, incumbent...)?” “Mes’ele: Zeyd-i miislimin zevci Hind-i miisUmeye zini iden ‘Amr-i âmmiyeşefan ne lâzım olur?. El-ccvâb: İslama gelir ise katlinden halâs olur. Hind recm olur, tâi’aten ise”D\\z.(liig·. 103; Imber. (1996/1981): 195.
69, begin with süretde..r or “suret-i mezburede..''^^^ (in this respect) (see picture 7 and picture 19). The first question and the supplementary question(s) generally seem to have been written by the same hand, most probably the hand of a scribe (see picture 7). The scribe must have written the first que.stion then left an empty space large enough for the reply of the mufti for the first question and transcribed the supplementary question.
Although the invocation and the set phrase are transcribed only on the first question, at the beginning of the fatwa paper, the mufti puts his signature after the each reply (see picture 7 and picture 19). The Arabic quotations from the authoritative texts are also transcribed after the each ruling (see picture 19).
The supplementary question seems to be a technique used by the fatwa-makers in order to express complex legal problematics that could not be formulated in a single query. The supplementary queries are always complementary questions of the first istifta’, as the continuation of the same legal topic, though in a different but complementary problematic. The fatwa scribes seem to have formulated the supplementary questions before the mufti put his ruling to the prior question. Although
Professor Heyd, in his analysis on the supplementary questions in the fatwas, claims that
“the supplementary question is based on the mufti’s decision in the response of the first one,”**® to my mind the supplementary questions seem to be independent form the foregoing replies. Most of the time the answer of the first question might not change the supplementary questions, therefore, I think, it is more secure to suggest that the supplementary questions are based rather on the first question, than its answer.
117 Heyd. (1969a) Ibid. 43.
70 Fetvâ/EI-Cevak The reply section begins with the wording el-cevai^^^, generally
transcribed with a line demarcating the question section (pictures 1-10). At the end of
the line most often a small prayer is written such as wa Allah a ^lam (God knows
best)^^® This prayer, at the beginning of the reply, must have alluded the humility and
fallibility of the muftr.'^' While the wording el-cevab-wa Allah a ‘lam is generally
transcribed by the clerks as the question section, the text of the ruling most often seems
to have been transcribed by the mufti himself (see pictures 1-15). Nevertheless in the
special fatwas issued for the state-affairs, the whole text of the fatwa might have been _ 12^ written completely by the miifti.
As I have mentioned the reply statement is generally very concise, composed of
a single affirmative or negative wording. Nevertheless, especially in the lö*** century,
longish replies were not very uncommon. Especially some fatwis singed by İbn Kemâl
and Ebussu'^üd contain longish answers conditioned, restricted and qualified in different
ways. Most of the longish answers are those that were conditioned by the mufti:
119 ,‘The answer” There can be longer prayers such as w i Allah subhanahu wa-ta‘i l i a‘lam wa-abkam (and God -may he praised and exalted- knows best and is the best judge). Less common prayers are wa Allah a‘lam bi’l-şawâb (and God best what is right) and al-ilm ‘^indahu (knowledge is with God). Heyd. (1969a): 41. Ibid.: 41. In the original fatwas while the question section and the wa Allah it lam formula are generally ^^τitten with the same hand, the hand of the text of the ruling seems to be a different both in terms of the character and ink (sometimes sprinkled with gold), (see pictures 1-10.) Mumcu. (1963): Documents 3, 14, 15, 20, 22.; Heyd. (1969a): 42; Ebusu'ud. Gedik Fetvası.
71 The Answer: /Ahey correctly conclude the settlement, neither Bekr is able to get his payment back, nor the heirs are able to bring the suit before the court again. -Ebussu'ud.'^''
According to Uriel Heyd the replies were becoming shorter and more compact
through the centuries.*^^ This is most probably related to the gradual advance in
bureaucratic techniques of the Ottoman fatwa-making. The progressive perfection in
the question-formulation abbreviated the reply sections. On the other hand the fatwas
issued for private petitioners and those issued for regulatory and pedagogical reasons
seem to be different in terms of the lengthiness and accessories of the replies. While the
fatwas issued for the private applications of the litigants, which contained concise
answers, were prepared by fatwa-clerks in the fatwa department to be used in the courts,
the regulatory and pedagogical fatwas were personally elaborated by the chief muftis.
The fatwas that were issued for state affairs often contain extended replies including
detailed explanations with references to some legal texts or former regulations. The
Ma^rüzât of Ebussu^^üd is a good example for a regulatory fatwa collection with longish
and explanatory replies. This kind of fatwi had a different character since it was
prepared to provide a legitimate base for the sultanic decrees and codes. On the other
hand the fatwas issued for pedagogical and informative purposes might have longish
replies in order to give instructive opinions, rather than to express a legal opinion about
“SuIAu saAfli ittilerise, neBekr verdiğini alır, ne verese dd^vaya kadirlerdir. "Düzdağ: 157. Heyd. (1969a): 42. Compare Fetâvâ-yı EbusstfüdyNMh Behçet ül-fetâviand Fetâvi-yı Feyziyye. Fox a compact study on the fatwas of İbn Kemâl see Ökten. (1996).
72 a litigation. Especially the fatwas issued for the kadis, to inform them on how to execute
the court are o f this type.*^^
iwza*\T)xQ ruling is most often followed by the signature of the
muftl.*^’ The signature is one of the most important component of the legal documents
in the pre-modem (and even modem) record-keeping and bureaucratic communication.
It had a function as a mode of proof for the validity of the document. The document was
to be authenticated through an authenticity-test applied to the signature or the seal to
determine whether the document really belonged to whom it should be or it was a
forged one.'^*^ The Ottoman bureaucrats authenticated the signatures and the seals on
the legal documents by comparing them with their replicas contained in the official
catalogues.'^'
In the legal consultation the signature had a further importance. The fatwa is a
holographic legal decision reflecting the legal reasoning of an individual mufti, rather
than an institutional authority. According to Islamic theory the mufti, as an individual
Muslim, was the only person responsible for his decision and there was no guarantee of
127 Selle: 15-69. In the Arabic codicology instead of imza' most often the term tevqf was used. Göyünç. (?): 457-58; Also see Gökbilgin. (1979): 111-2; Reychman & Zajaezkowski. (1968): 150-1. For a research on the signatures of the Ottoman learned hierarchy see İpşirli. (1988). In Islanuc codicology and diplomatics the word şahha - şiMa - sahih (to be healthy, sound, strong, vigorous, firm, right, correct, faultless...) is used to refer the authentication of the writings. İnalcık. (1980).
73 the correctness of his opinion,*^^ Accordingly the muflT had to put his signature under
his legal opinion to declare that he himself was the only one responsible for the fatwa.
The Ottoman muftis, on the other hand, seem to have most often avoided to use
their seals on their fatwis as a means of signature. The reason behind this eluding might
be that autograph was perceived as a more reliable mean of signing than the seal which
could be used by a third person in the name of the seal-owner. One of his falwis the
chief mufti Mustafa Sun‘^ullah Efendi (d. 1021/1612) states that in order to prove that a
document belongs to Zeyd, one should check the hand-writing {hatt ) in the
document.Walsh asserts that in the Ottoman empire “the use of seal [on the fatwas]
was prohibited unless his [mufti’s] physical condition made writing impossible.”’^“* On
the other hand the autographic signature might have been seen more suitable to the
nature of the fatwa-making. The muftis were expected to personally elaborate on each
fatwa and express their decision with their personal reasoning. The autographic
signature seems to have been perceived as an indication of the mufti’s personal
elaboration on the fatwi. We can recall that the ruling and the hand-written signature
132 Reinhart. (1994): 19. ’33 '^'■Mes’ele: Kibar-i '^ulemâ’dan mansib-i âlide olub, imkâ’sı ve hâtemi beyoe’l-havâşş ve’I- ''âvâm meşriih ve m u té arif olan Zeyd, Kethüdası ‘A m r’dan bir mikdâr akça istidâne itmekle, yüz bin akça istikraz edüb, ‘İâztm ül-edi deynimdir”deyu im za’ ve hatt ve bâtemiyle mümzâ’ ve mabtüm bir tezkire ile ‘^amei câ’z olur mı, yohsa isbât-ı deyn lâzım olur mı? El-cevâb: Zeyd’in hattı idüğişâbit olub, méanven ü mersüm oltcakmazmümyla ‘amel olunur. Asl-ı deyai yâbudZeyd’in ikrârmı işbât lâzım olmaz. İpşirli. (1987): 241. Walsh. (1965). It was recorded that the chief mufti Dünïzâde “^AiS’uUâh Mehmed Efendi (d. 1199/1785) was once permitted by the sultan to use his seal on the fatwas since he was disable to sign with hand. See‘tlm iyyeSâlnâmesr. 515; Uzunçarşıh. (1988): 204.
74 are transcribed by the same hand which indicates that it is the owner of the signature i.e.
mufti who gives the reply to the query.
The signatures on the Ottoman fatwas were generally transcribed after the
wording katabahu (wrote this..) and sometimes hanarahu (transcribed this...) (see
pictures 1-10).*^^ The name was written usually with the appellations, fakir!faqTr{poor)
or h a kir! (humiliated) representing scholastic modesty and humility.'^^ Most of
the time only the single name of the mufti is written such as katabahu al-haklr Ahmed'
or ‘‘"harrarahu el-fakir E bussif üd." Habitually a short prayer is added near the name like
ufiya'^anhu' (may he be forgiven) (see picture 1-19).’^^ Occasionally the father’s name
is added to the name of the mufti, such as '''‘Katabahu al-fakir Mehmed Salih Efendizade
AhmedEifad' o r katabahu al-faklr M e^ed*^Arif ibn Ahmed‘SAtâ'ullâhf In this case
the prayer is formulated as "''^ufiya ‘^anhuma" (may they (dual) be forgiven).*^* The
signatures were rarely longer such as ‘’'‘katabahu al-fakir ilayhi td âlâHayri b. ^Avni el-
Ürğübl^uEya ‘‘anhumâ"^^'^ Occasionally though, in the IS*** century a few muftis were
seen to use their seals instead of signature on the fatwas.'“*® Sometimes both the
signature and the seal are marked. Infrequently the seal is stamped on the other side of
the fatwa paper (see picture 19). The provincial muftis most often added their locations
Heyd. (1969a): 43. For scholastic modesty and humility see: Coulson. (1956); Makdisi. G. (1974); idem. (1985); idem. (1990). Heyd mentions another prayer: gbuQra lahu (m&y he be forgiven) (Heyd. (1969a): 43). B8 İpşirli. (1988): 179-80. 139 Ibid.: 180. Professor Mehmed İpşirli published the reproduction of the fatwi-seal of the chief mufti MekkI İbrahim Efendi (d. 1212/1797). İpşirli. (1988): 180.
75 to their signatures such as katabahu Ahmed al-mufíJ ¿/-[location] (picture 18). They sometimes used the formula “...al-me’mür bi’l-iñá" (who is charged with the legal consultation) indicating they were appointed as a mufti by the sultan. Some medrese professors (müderris) who were also charged with fatwa issuance occasionally indicated their positions in the madrasas as '''‘katabahu a¡-fakir Ahmed al-müderris bi- medrese..r^^'' Most of the time the signature are illegibly stowed and decorated by an ornamented calligraphy (see picures 1-19) and sometimes sprinkled with gold (picture
20).
The chief mufti’s signatures put on the fatwas are generally different form those transcribed on the official documents, especially on the petitions {tekirfs or ‘'a/zs) submitted by the muftis to the sultans or high officials.For the petitions the chief muftis generally used the wording “ e d -d íi" or '’'m ine’d-dd'f" (wellwisher) before their name, such as '"'’ed-da'^I Dürrlzâde M ustafa^ ufíya '^anhii'^^^ or '’'^Mine’d-ddl ^Alt Efendi
‘' vfiya ‘'anhu}^^ The term ed-dS^i seems to have been used to indicate that the petition was to be submitted to a particular person with whom the mufti humbly sent his wellwishes. On the other hand the fatwas are, in principle, not to be presented to a particular person or office. They are universal legal opinions transcending the mundane litigations and personalities. Accordingly the muftis issued their legal opinions only through their scholastic identities, as “humble muftis” without addressing to a particular office or person.
141 Heyd. (1969a): 42; İpşirli. (1988): 191-2. 142 Ibid.: 181. 143 Başbakanlık Arşivi, Cevdet-Muarif: 134.
76 The muftis generally, furthermore, did not write their ofiicial titles and ranks
with their names.'·^^ This is a scholastic attitude of the jurisconsulship in Islamic culture.
In the theory of Islamic legal practice the scholastic authority does not emanate from
the ecclesiastical hierarchy or any other system of authority. The knowledge is seen as
the product of informal and individualistic system among the Muslim scholars.Thus
the function of professing legal opinions (ifta’) can not be licensed by reference to the
official status of the scholars.’“*^ Nevertheless, as it has been mentioned, sometimes the
Ottoman provincial muftis used the formula “aJ-me’mur bi’I-ifia’ ¿/-[location]”
indicating the mufti is charged with the legal consultation by the state or the sultan.’·*^
On the other hand very occasionally in some fatwas issued to be presented to the sultan
for political purposes to legitimize the political decisions, the muftis were seen to be
entitled with their long noble titles indicating their official identities, such as '"^katabahu
cd-dS^T al-faklr Yasincizade es-seyyid^Abdiilvahhab cl-mufii bi-dar is-saltanat il-aliyye
cl-edebiyyet il-Osmaniyye, ‘'ufiya ^anhuma^' (...the mufti in the house of the eternal
Başbakanlık Arşivi, Ali Erniri, IV. Mehmed: 97. Nevertheless the Kidi'^asker of Rumeli Ankaravi Mehmed Efendi (d. 1098/1678) when he held the office of the muftiship temporarily during the indisposition of chief mufti Minkarizade Yahya Fifendi (d. 1088/1678) preferred to transcribe his signature as ''katabahu al-fakirMehmed al-me’milrb i’l-iilâ’hUafeten" (...Mehmed who is charged with the consultation by the Caliph) perhaps to express the temporality of his office. İpşirli. (1988): 180. Coulson. (1956); Goitein. (1968); Jackson. (1996); 69-111; Makdisi. (1961); idem (1981): idem. (1983); idem. (1984); idem. (1985); idem. (1990); idem (1990b); idem. (1995); Mottaahedeh. (1980): 135-50; Reinhard. (1994); Rosenthal, F. (1970); Schacht. (1960); idem. (1964): 199-210; SchiUer. (1958); Tyan. (1954-7). Makdisi. (1990): 119-20; idem. (1990b): 118-20.
77 Ottoman sultanate,,.),These titles signifying the official positions of the muftis might imply to the patronage of the Ottoman state upon the learned hierarchy and the bureaucratization of the Muslim jurists under this patronage.
N a k l: The citation of the textual sources in the legal opinions is an important practice in the Islamic legal culture. After the consolidation of the legal schools
{madhhadf^^ and canonization of the authoritative texts''*’^ the jurisconsuls became affiliated with particular schools of law. According the post-classical jurists, the muftis should follow {taqiTd) the opinions of the great jurists of their school and attribute their answer to their ijtihad}^^ Thenceforth the muftis became acquainted with citing the related passages from the authoritative texts of their legal school as textual proofs for their legal opinions. Nevertheless there are different views, in Islamic legal tradition, about the responsibility of the muftis to specify their methods of reasoning and sources
{dalrl and hujja). While some jurists think that muftis should specify the method of reasoning and textual sources, most of the scholars of Islamic law do not obligate the
The term w e ’wdr is derived from amr (pi. awânür, order, command, ordinance, decree, power, authority) refers to the meaning, commissioned, charged, commissioner. Başbakanlık Arşivi, HH: 2081 A; tpşirli. (19880; 181. For the consolidation of the legal schools see: Makdisi, G. (1981); idem. (1984); idem. (1985); idem (1990); Schacht. (1950); idem. (1964): 57-68. Wheeler. (1996). Masud, Messick and Powers. (1996): 25; For the discussions about taqiid see: Hallaq. (1984); idem. (1994); idem. (1996a); (1996b); Jackson. (1996): 113-140; Schacht. (1964): 69-74Weiss. (1978); Zysow. (1984).
78 jurisconsults to do so, if the questioner is a nonspecialist.On the other hand complex fatwas issued for scholars and those for the public and political affairs were generally expected to contain the textual and methodological proofs legitimating the ruling.'^
Accordingly the fatwas of the Ottoman ehief muftis, issued for private applications generally did not enclose any reference to or quotation from the authoritative canonical texts.’*'■*’ On the other hand in the fatwis submitted to the sultans or high officials, most often, the related legal references were mentioned and sometimes
Arabic quotations were extracted.*'^*’ Contrariwise unlike the şeyh ül-îslâms, the provincial muftis always were expected to cite their references and give quotations.
Uriel Heyd records that in 1002/1594 a sultanic decree was issued ordering the provincial muftis to excerpt the related quotations {nakl) form the authoritative texts in their fatwas.''^^ Correspondingly in the şeyh ül-İslim s’ petitions (inha) for the appointment of the of the provincial muftis it was stated that the provincial muftis were expected to cite the quotation from the authoritative Jilanafl texts.Nevertheless some provincial muftis seem to have disregarded this expectation (see picture 18). On the other hand we know that some fatwa compilations were rearranged with the
Masud, Messick and Powers. (1996); 25; al-Nawawl, Adah. 64-5. Haram. (1996); Masud, Messick and Powers. (1996): 25; Powers. (1993); Skovgaard. (1994). Hezarfenn; f. 138a; D’ohson: vol. IV, p. 584; Heyd. (1969a): 44; Uzun^arjili. (1988): 174. 156 SoeMa’^ruzat in Hosier. Heyd. (1969a); 45 (in Balıkesir sicilli, vol. 11, fol. 71 a). '''iûâ' ile mut asamfolub eşahb-ı akvâl-i e ’imme-i Haneûyye’den naklini yazmak üzere emr-i şerif rica’ olunur'' Uzunçarşılı. (1988), p. 179, note 3. See also d’Ohson: vol. 5, p. 584.
79 supplementary Arabic quotations from the authoritative texts by the later disciples for pedagogical reasons.*'**’
The extraction is generally transcribed at the bottom of the fatwa paper in spiral and crooked lines (see picture 22). The title of the quotation is written at the end of the extraction in an abbreviation or suspensions, such as Multaqa, Qëdikhân, Şarh al-
Multaqa, al-Muhit, Hidaya.... Sometimes the title is given after the word m in (from) and generally overlined. Occasionally chapters from which the extraction is quoted are mentioned with titles, such as fî kit âb al-nikâh or Ù kit âb al-buyif.
The authoritative texts {esahh-i ekvât) preferred by the Ottoman jurists were among the fundamental Hanafi furâ'" manuals. The most well known of those manuals are Fatâwâ Qâdl-khân by Fakhr al-DIn a№ asan b. Mansur al-FarghanT (known as Qidl- klian, d. 592/1196),'^’ al-Fatâwâ al-Tâtârhâniyya by Fari al-Dïn ‘"Âlim b. “"Ala al-
EderpetT (d. 786/1384),’^' Kitâb bidâyat al-mubtadr (known as al-Bidâyâ) and its commentary aî-Hidâya both by Abu’l-]Hasan ‘^AIT b. AbT Bakr b. “^Abd al-JalTl al-
FarghanT al-MarghininT,’^^ Durar ai-Hukkâm (known as Durar, in Ottoman pronunciation, Diirei) and Ghurar al-Hukkâm (known as Ghurar, in Ottoman, Giirei) by
Muhammed b. Fcrim uz b. “^Ali known as M olli Hiisrev(d. 885/1480),'*^^ al-Fatâwâ al-
Yenişehirli “"АЕдиПаГ Efendi’s Bebcet ül-fetivâ was reorganized by his fetva emini Mehmed Fakhl al-'^Aynl by adding the Arabic quotation from the fiqh texts basing the fatwas of'^Abdullah Efendi. Özel, Ahmet. (1992): 346. Juynboll. (1978); 377; Brockelmann: I, 376; suppl. I, 644. Коса. (1995); 446-7. Heffening. (1991); 557-8. Akgündüz. (1994): 27-8; For modem Turkish translation, Dürer ve Gürer tercümesi ed. Arif Erkan, Istanbul, 1979.
80 Bazzaziyya (known as al-Jamf al-vajiz or Fatawa al-Kardan) by Khafiz al-Din
Muhammad b. Muhammad b. Shihab al-KardarT al-KharizmT al-BazzazT (d.
827/1424)'^.
From the 17*** century onwards, the Hanafî furh“^ manual, Multaqa’l-abhur oi
Ibrahim al-Halabl (d. 956/1549)'*’'^ became the most popular and esteemed canonical text for the Ottoman muflTs. The Multaqa “presents Islamic law in its final, fully developed form without being in any way a code.”’^® It was translated into Ottoman-
Turkish with the order of the sultan Murad IV (r. 1032-1049/1621-1640)'^^ and commented many times. The most well known commentaries of Multaqa are M ajm é al- e/tAür (known as Dâmâd) by Çeyhzâde "Abdurrahman b. Mehmcd (1078/1667)"^*' and
Durr al-muntaqa hy Muhammad al-HasqafI (d. 1088/1677).'*’^ The Multaqa modeled on basic HanaiT furu" Manuals, al-Mukhtasar by Al-Kudurl (d. 428/1037),'’° the
M ukhtarhy al-MawsilT (d. 683/1203),” ' the Kanz al-daqâ’iqhy Abu’l-Barakat al-Nasaft
Özel. (1992a): 13-4. Schacht. (1986): 90. '*^^Schacht. (1964): 112. Cin & Akgündüz. (1995): 104. Multaqa was translated into Turkish and commented upon in this language by Mehmed Mevkufatl (d. 1050/1640), which was published many times (Istanbul, 1269, 1276...) (see Şerh-i Multaka and Schacht. (1986): 90). On the other hand d’Ohsson in his Tableau général de ¡ ’Empire Ottoman (Paris, 1788-1824) bases his analyses on Islamic law upon Multaqa. (Özel. (1990): 115.) It was partially translated into French by H. Sauvaire in Le Moultaqa el-Abheur. Marseille, 1882. It was published in Cairo 1298, Özel. (1990): 115. Istanbul, 1317, 1327. ™ Özel. (1990): 36. Brockelmann, Sup. vol. I, p. 295; Kash al-zunda:\ol. II. p. 1632. Özel. (1990): 69; Brockelmann: vol. I, p. 476, Sup. vol. I, p. 657; Kashf al-zunUn. vol. II, p. 1622.
81 (d. 710/1310)'^^ and the Wiqayat al-riwaya by Burhan al-Din Mahmud al-Mahbubi
(745/1344
2.4. Language and legal terminology in the Ottoman fat was
In the Ottoman Empire the official language is Ottoman-Turkish.'^'^ Ottoman-
Turkish is a motley language which is grammatically Turkish but in terms of lexicon is a combination of four Islamic languages, Turkish, Arabic, Persian and Jagataic.*^^
Ottoman-Turkish was in fact a bureaucratic language, through which the formal relations in the public sphere were established. The formal transactions among the state- apparatuses and between the state and people were carried out in Ottoman-Turkish.
Accordingly the legal discourse and official communication in the Ottoman Empire was mainly dominated by this language. The legal codes (känünnämes), sultanic decrees
(fermän) and diplomas (berät), the court records which contained all kinds of contractual and criminal documents and fatwas were mainly in Ottoman-Turkish.
On the other hand Arabic occupied a special status in the Ottoman legal discourse. The classical language of Islamic law is Arabic which is the language of the
Koran. It is a universal Muslim language not only of the law but also of teaching and
Özel. (1990): 72; Brockelmann: vol. II, p. 251, Sup. vol. I, p. 761; vol. II, p. 263; K a sh fa l- zunmr. vol. II, p. 1168. Özel. (1990): 77; Brockebnann: vol. U, p. 253. Faroqhi. (1997): 30-2.; Fleischer. (1996): 20-1. Mustafa '■'All writes that '\..F i’l-vakf zamâninâ vüâyet-i Rum ’da cad^ olan lisân bu el-âceb
ül-Iisâne-i çardan [Turkish, Arabic, Persian and Jagataic] mürekkeb bir nutk-i pâk-i müzebhebdir ki ehl-i diller tekellümünde güya k isâ ’irinden azebtir' Fleischer (1996): 21.
82 scholarship, as well as of worship and theology.’’^ The classics of Islamic law, the
Hadiths and canonical texts were written in this scriptural language. Arabic gave the law a transnational legal nomenclature that the scholars of Islamic law were associated with. From the Koranic schools to the madrasas, the Islamic education was dominated by the Arabic language. Arabic was also the language of the legal documents in practice of Islamic law. The document specialists were trained for the acquisition of the Arabic literary skills as a craft or technique of the legal lexicography, modalities and formulas.In the Ottoman Empire Arabic was apprehended as the sacred language of
Islam and Islamic law.” * It was highly venerated and it was a symbol of intellectualism in Islamic sciences.”’ Sciences of religion and law were taught in Arabic in the madrasas.'*’ It was also the predominant literary language which was preferred by the
Ottoman authors, besides Ottoman-Turkish, especially in religious sciences and jurisprudence.'*' The classical authoritative texts, the condensed fiqh manuals {mutürí), the texts on the theory of jurisprudence (i/yt/Z al-fíqh) and substantive law {fw if) that
Arabic for the Muslim world is the counterpart of Latin for the Medieval Christendom, see: Berman (1983): 161-3. ’’’ Wakin. (1972); Messick. (1990); idem. (1993); 203-230. ” * Fleischer. (1996): 20-1. ’’’ Taşköprüzâde dedicates a special chapter for Arabic linguistic and phonetics, lexicography, eytmoloy, grarmnar and syntax in his famous encyclopedia of the sciences, Mawdifat al-ulum. İnalcık. (1973): 165. Baltacı. (1976). Meservey states that the library of a seventeenth-century doctor of Islamic law consisted of 2,270 books, twenty four in Persian, twelve in Turkish, and all the rest in Arabic. Mardin. (1979): endnote 38. (Mardin extracted from Meservey, Sabra F. (1965). “Feyzullah Efendi: an Ottoman Şeyhülislâm,” Ph.D. dissertation, Princeton University, 1965, pp. 17 ff.)
83 the Ottoman jurists based their jurisprudence were predominantly in Arabic. The most well-known of those Arabic manuals written in the Ottoman times, as I have mentioned, is MuItaqa’I-abhur-2i handbook of furü*^ in jurisprudence, which is based on fundamental fiqh manuals of the HanafT school- by Burhâneddîn Ibrahim al-HalabT (d. 956/1549).'*^
The bilingual character of Ottoman legal discourse is a result of the dichotomy between Arabic as the universal language of religion and Ottoman-Turkish as the official language of the state. While Arabic was the classical language accommodating the legal terminology of Islamic law, Ottoman-Turkish was the bureaucratic language of the political communication among the state apparatuses and between the state and people.'*^ Ottoman language was the language of the public sphere in which the formal public relationships were established. Accordingly while the legal instruments and documents for the legal transactions in the public sphere were in the official language i.e. Ottoman Turki.sh, Arabic remained as the traditional scholastic language of law and other Islamic sciences. However from the unofficial-scholastic sphere to the official- bureaucratic sphere of law there was a continuos terminological transition. The terminology of Islamic law {al-iştalâhâf) had been produced in Arabic and it was, instead of being Turkicized, incorporated into Ottoman-Turkish legal discourse through lexical borrowing. This incorporation created a specialized legal discourse which was a constructed language with the Turkish grammar and the Arabic nomenclature. The document language of the Ottoman law was constructed through this lexical
Schacht. (1986): 90. İnalcık highlights the bureaucratic procedure between the state and people. (1988b). 184 For the definition of public sphere see: Habermas. (1991).
84 incorporation of Arabic technical language into the Ottoman-Turkish syntactic structure.
The language of Ottoman fatwa was structured under these linguistic conditions of Ottoman legal discourse. The fatwa language was in Ottoman-Turkish partially loaded with the technical vocabulary of Ottoman law. The technical vocabulary consists of both the lexicon from the terminology of Islamic law (Arabic) and Ottoman sultanic law (Turkish, Arabic and Persian). The popularity and intelligibility of the legal technical vocabulary by the non-specialist Ottoman individual is an obscure problem.
But if it is legitimate to suggest that a non-specialist individual had at least a familiarity with the technical vocabulary of the Ottoman law, then we can propose that the fatwa language was not very incommensurable for the Ottoman people. Except the inevitable technical terms, the Ottoman fatwa-makers seem to have avoided to overload the fatwa text with the technicality. One can not observe the flowery and intricate version of the
Ottoman-Turkish in the fatwa texts.
The relative simplicity of the fatwa language must have been the result of the social and legal function of the fatwa in the Ottoman context. We can remind that some of the legal instruments of the pre-modem legal culture were intentionally constructed as euphuistic texts with a rhetorical language and a flowery calligraphy. These kinds of documents were to be deciphered only by the speciali.sts or a group of initiated elite.
These euphuistic documents symbolized the textual expression of the elevated style of
‘high culture.’ The authority of such euphuistic texts was given mainly by the ‘top
85 level’ style which is unattainable for the ordinary man.'®^ In the Ottoman diplomatics especially the international treaties, sultanic diplomas and decrees can be categorized as euphuistic documents. The fatwa, on the other hand, was merely a legal opinion most often issued for the individual applications of the ordinary people for their legal transactions or everyday ethical religious problems. I think it would be reasonable to suggest that the popularity of the fatwa might inherently contribute to the relative simplicity of the fatwa language. On the other hand, as a legal instrument expressing the authoritative legal opinion, the entire text of the fatwa should be exactly comprehended by the executors of Islamic law. The fatwa containing a legal problematic is most of the time more complicated than any standard legal instrument such as patents, permissions, grants, decrees and orders. The complexity and the uniqueness in the content seems to have caused the simplicity in the language.
Nevertheless, as it has been analyzed, the fatwas issued by the chief mufti through the fatwa department have similar stylistic characteristics in calligraphy and decoration with the Ottoman bureaucratic styles. This similarity in calligraphy and decoration might refer to the fact that the technology of document-making in bureaucratic legal instruments was also applicable to the fatwa of the chief muftis, which were also prepared in a similar bureaucratic process.
If we return to the legal terminology in the fatwa text, it is possible to suggest that, the employment of the legal terminology in the Ottoman fatwa has important legalistic reasons. The fatwa-making is in fact reconstructing the real litigation into a
For a similar evaluation for the elevated language of the philosophers see Bourdieu. (1987): 151-159.
86 legal problematic by employing the palpable forms of legal discourse in the place of
‘real’ and ‘mundane’ context.The fatwa-making is, in its nature, a ‘world-to-text’
movement.The fatwa-maker ‘translates’ the real litigation into the language of legal
reasoning, and thus sets up a bridge between the real world of the social context and the
constructed world of the law. While abstracting the real ca.se into a hypothetical inquiiy,
they had to transform the mundane vocabulary into the legal genre of the legal discourse
represented in the canonical manuals.'^* Accordingly the Ottoman fatwa-makcrs, while
producing the legal problematic in the istifta’ section, seem to have judiciously
composed the proposition with a carefully selected legal vocabulary and conception
without, however, falling into the traps of literary ornamentation.
The essential reason behind the employment of the technical vocabulary is that
only with the elements of this vocabulary the me.ssage of the legal problematic can be
cornprehendcd perfectly. The fatwa scribes seem to have been very cautious to
formulate the istifta’ to the point, the legal rules and categories that govern the
particular case. In other words by loading carefully selected legal terminology in the
question section, the fatwa-makers reconstruct the query as a direct reference to the
well known legal categories that were directly derived from the canonical texts.
For transformation of the mundane context to a legal discouise see Bourdieu. (1987); Pluss. (1986); Powers. (1990): 297. Messick. (1993): 226. For the formation of the canonical manuals o fl lanafi law see: Wheeler. (1996). For similar evaluation for the court registers, see: Gerber. (1993): 44.
87 2.5. Fatwa compilations
"How each legal compilation was read, for whom it may have been written, and what particular function any one book my have served? " RosamondMcKitterick
One of the most interesting chapters in Islamic legal history is fatwi
compilations of jurisconsults. Many prominent jurists’ fatwas were compiled and
edited in volumes in the name of fatawa” by their disciples from the 2“'* century of
Islam onwards.*^’ Subsequently, it became a part of their training for the students of
Islamic law to collect their masters’ fatwas and arrange them according to some legal
categories.Yahyâ b. MuhyT al-DTn al-Nawawf informs us that in the Madrasa
training the leading jurists used to discuss the legal cases, and the disciples used to
record these discussions in the fatwa form.’^^ Kâtib Çelebi, in his Kashf al-Zmm cited
more than 160 titles of fatwa compilations, most of them are form the pre-Ottoman
“Some Carolingian law-books and their function,” in Authority and Power: Studies on Medieval Law and Government Presented to Walter Ullmann on his Seventeenth Birthday. Ed. B. Tierney and P. Linehan. Cambridge, 1980: 13. Hallaq (1994): 36; idem (1996); Masud,, Messick, Powers. (1996): 10.
Masud. Messick. Powers. (1996): 10. The terms f a ta w i and a a w a zil (case) were used interchangeably to signify legal opinion issued by jurists. One of the earliest compilation is the
leading Hjanaft jurist al-S}amarqandl’s (d. 983) Kitab Fatawa al-Nawazil. Al-Nitift’s (d. 1054)
M ajm f al-nawazil wa l-waqf it and Qidikhan’s (d. 1195) F atiw i Qidikhin are two of the most famous collection of the Hanafi law. In the Islamic West Cordovan Jurist Ibn Sahil’s (d. 1093)
K itib a l-N a w izil m.A Ibn Rushd’s (d. 1126) F atiw i Ibn Rusbd and Ah{mad al-WansharlsI’s (d.
1508) K itib al-M fyiraxc three basic Mâliki collecetions.
'^^al-Nawawl, M ajm ff·. Vol: 1, pp. 34, 48.
88 centuries.*^·^ On the other hand, the MalikT jurist “^Umar al-JTdl records 80 titles of
fatwa compilations in MalikT school.
Fatwa compilations are generally catechetical texts i.e. the question and answer
of the fatwas are preserved more or less in their original form and content.'"’^ Recent
studies have shown that the fatwa compilations constituted one of the fundamental
legal literature in the post-classical period of Islam. After the articulation of the
principal canonical manuals of the predominant legal schools,so called m utun and
usul, the Islamic jurisprudence continued to develop through ifta’ revealed in the fatwa
collections.'^ According to Baber Johansen fatawa introduced a new genre in the
K asbf al-Zimuir., vol. 2: 1218-23. al-Jidi: 105-10; Hallaq. (1994): 35. Professor Wael B. Hallaq classifies two types of fetwa collection. “In the first, such as those Ibn al-Salah. [Fatawa wa-Masa'il ibn aI-SaIaIi\, Wanshansl [al-M fyar al-Mughril)\, Subkl [Fatawa aI-Subki\, Ibn Rush [Fatawa Iba Rush], Nawawl [Fatawa al-Imain al-NawawT al- Mifsammatu b i’l-Masa’il aI-Manthura\ and ‘^Alaml [Kitab al-Nawazil,] the question and answer are preserved more or less in their original form and content; in the second, such as those of al-
Shaykh al-Nizam [al-Fatawa al-Hindiyya], and Kurdarl [al-Fatawa al-Bazzaziyya al- Musammatu bi’l-Jatnf al-Wajlz,] the question and answer have undergone systematic alterations.” Hallaq. (1994): 31-2. “The m utun are textbooks that embody the dominant doctrine of the schools of law. Their
main function has been to serve as textbooks for the training of jurists. The usulxeicx to the sources and the methodology of the law.” Johansen, Baber. (1993a): 31. Wheeler. (1996). The conventional thesis represented by the Islamicists and Orientalists of the 19'*’ and 20**“ centimes was designed upon the assumption that the Islamic legal tradition was embodied in a corpus of classical legal texts composed by the great jurists Ixom the T"* to the 11““ centuries on the basis of the Q u r’an and the hadlth. Thereafter, according to this view, independent and critical Judgment stagnated at best, and the legal system became unalterably and eternally fixed. Recent studies, especially those of Wael B. Hallaq (1984, 1994, 1996), Baber Johansen (1988,
89 Islamic jurisprudence treating judicial and moral questions of human praxis.^^ The
HanafT scholar Khayr al-Din al-Ramll in his al-Fatawa al-Khairiyya li-N af al-Bariyya
states that while the m u tu n represents the original doctrine of the school, the z a h ir a l-
riw a y a , the fatawa represents the responses of the scholars for the practical problems _ 201 that was not elaborated directly in the m u tu n .
Fatawas were the handbooks dealing with much more practical problems of
everyday life than the methodological Shar‘d manuals. Consequently fatwa
compilations gradually became one of the basic handbooks for the executors of Islamic
law, namely kadis in judicial disputes {muhakamat). After the consolidation of the
legal schools, even before, kadis gradually came to loose their speculative ability
{ijtih a d ) and became dependent to the authoritative texts {zahir al-riway^ of the great
1993a, 1993b), Khalid M. Masud (1977, 1984, 1993, 1996 with B. Messick and D. S. Powers) Harald Motzki (1995, 1987, 1994) and David S. Powers (1990, 1993), however, have shown that, although the standards of the law was formed to an important extent by the codification of the primary texts of the great jurists of the classical period, former Maslim jurists developed different modes of transformation and articulation of Islamic legal knowledge with the changing social conditions. Ifta’ has been expressed as the essential institution of the post- classical Islamic law in adjusting itself to the changing praxis. Baber .Johansen adds also Shwuh (commentaries) to this new genre of the Islamic jurisprudence: “While the early tradition is upheld in the textbooks for teaching purposes and is used as a yardstick by which to measure the unitiy of the legal system, new solutions are widely accepted in other literary genres like the commentaries {shuruh), the responsa {fatawa) and the treatises on particular questions {rasall) ' -Johansen, Baber (1993a): 31. Ramlf: vol. 2, p. 26. For an evaluation on Ramlt’s comment see Johansen (1993a): 35. As an example David S. Powers demonstrates that in M* centvuy Fez there was a strong connection between court process and jurisconsulship. Powers. (1990). Also see Hallaq. (1994): 56 and footnote 124.
90 jurists-^*^^ They became dependent to not only the authoritative texts but also more
practical handbooks containing direct legal opinions about daily and local legal
problems. Fatwa compilations provided kadis with useful handbooks containing a
number of legal opinions about the everyday affairs that the kadis were always
encountered.
In the Ottoman judicial circles many great muftis’ fatwas were compiled by
their disciples or colleagues from the lb'*“ centuiy' onwards.^^ As I have mentioned in
the previous pages in the Fetvahane many fatwa compilations were housed to be used
by the personnel in the fatwa-issuing process. On the other hand many fatâwâs seem to
have been used by the kadis as handbooks in their tribunals. In the first half of the lb*"*
century the fatwa compilation of şeyh ül-İslâms İbn Kemâl (d 940/1534)^®^ who was
known as m uñí üs-şakaleyn (the mufti of the people and the jinns), Miihimmet ü¡-
m ü ñ l is perhaps the most favorite fatwa collection in the Ottoman learned circles.^^^
On the other hand Mü’eyyed-zâde ‘'Abdurrahman Efendi’s (d. 922/151b)^“^ M ecm ifat
ul-fetavd^'^^ known as M ü’cyyed-zâdc Cöngi~^^ which is a compilation of different
fatwas from various collections inHanafi law was highly used by the Ottoman ‘'ulemâ’.
Coulson, N. J. (1956); Kamali, Mohammad Hashimi (1993). Hallaq, Wael B.(1994): 55-6. For an analysis on the literary works of the Ottoman ‘ulemâ’ see Faroqhi (1973): 207. Mecdf: 381; Brockelmann: Sup. vol. 2, p. 668; Ökten. (1996). ‘^Osmanli Mii'cIIiiJerr. vol. 1, p. 223. Özel. (1990): 112-3. Mecdf: 308; Brockelmann: vol. 1, p.. 293; Sup. 7>\9.‘OsminbMü'elUfJert. vol. 1, p. 355. 208 Kashf Ul-zunun: vol. 2, p. 1606. 209 Özel. (1990): 109-10.
91 The compilations o f Sa'^dî Efendi (d. 945/1539) {Fetâvâ-yı Sa ‘diyyef^^ and ]Hâmid
Mahmûd Efendi (d. 985/1577) {Fetâvâ-yı Hâmdiyyef'^ were also among the favorite
fatwi compilations of the Ottoman muftis in the lö*** century.
In the 16”^ century perhaps the most authoritative fatwa compilations were those
of Ebussu‘^ud Efendi (d. 982/1574). In the Ottoman libraries there are a number of
different fatwi compilations entitled as Fetâvâ-yı Ebussif Ud}^^ Kitib Çelebi records
different versions of those compilations. The most well known of these collections
was compiled by one of the Ebussu'^id’s disciples, Mahmüd b. Ahmed Bezen-zide
(Bozan-zide ?)(d. 983/1576)^''* who had received his mülizemet from Ebussu^'ud and
was serving as a clerk in the fetvahane during Ebussu'^ud’s muftlship.^*^ It was recorded
that during his career as müderris and mufti in Istanbul, Rhodes and Manisa, Bezen-
zide was collecting the fatwis of his former master Ebussu'^ud and compiled them, in
his last years. Since he was not able to finish making a fair copy, the final edition of the
compilation was carried out after his death, in 996/1588, by 'All (?).“"^ This
Ibid.: 112; Mecdi; 44; Brockelmann: vol. 1, p. 467, Sup. vol. 1, p. !'Osmanli Mü'elliilerr. vol. 1, p. 323. Özel. (1990): \2l; Sicilt-i "Osmâaf. vol. 2, p. 104; "OsmânJı M ü’el/i/Ierr. vol. 1, p. 268. For a bibliography of EbussuTid in the libraries of Istanbul, see: Atsız. (1967), for the fatwa collections ibid, p. 28-33. For an analysis on F-bussu'iid’s fatwi collections, sec: Akgündüz. (1996). For a modern compilation of Ebussif id ’s fatwis, see Düzdağ. K asbf al-zunOr. vol. 2, pp. 1219-20. "Ati’l: 234-5. Kashf al-zuaua: vol. 2, pp. 1219; Akgündüz. (1996): 442; See also ‘^Ati’l:235: “Ebussifüd Efendi hazretlerinin fetâvâsını cenf ü tedvin ve birmecmif a-igüzTn itmiştir'' Akgündüz. (1996): 442.
92 compilation consists of hundreds fatwas about a variety of topics (see picture 23).^*^
The classification is organized in accordance with furh“^ and fiqh manuals, starting with
chapters about the worship, kitab üt-tahâret and kitab üş-şalât (f 2a-21a). Another
fatwa compilation attributed to Ebussu'^ûd Efendi was edited by Çorlulu Sinan b.
Ramazan el-CevherI.^‘* While the compilation of Bezen-zide seems to consist of
mainly the fatwas issued through the fatwi department with brief answers, compilation
of el-Cevhen also includes the fatwas submitted to the Sultan Süleyman the Lawgiver
and other state officials, like those in rüzât. ‘^Ala’î records another collection of
Ebussu‘^iid’s fatwas compiled by one of his clerks. Şeyhi Kâkül! Perişan (d. 1010/1601-
2) during his office under the supervision of Ebussu^^Od.^’’ Last of all Katib Çelebi
records that during the reign of Sultan Murad III (r. 982/1574-(d) 1003/1595) in
983/1575-6 a number of legists including Muşlihiddin Hâlife, Muhyiddin Hâlife,
jflüseyin Hâlife, Kâdl-zâde, Palamud-zâde, Şücâ*^üddln Hâlife, Şükrullâh Hâlife and
Veli Çelebi were charged with compiling the fatwâs of Ebussu‘'ûd.^^°
see Fetâvâ-yı Ebussif ûd, Ms: Sülymaniye Library, Yeni Cami 624. (I am grateful to my advisor Halil İnalcık for his borrowing the photocopy of the compilation.). See also Fetâvâ. Ms: Süleymaniye Library, Şehid Ali Paşa 1028.
Ertuğrul Düzdağ’s edition (see Düzdağ) is based on el-Cevherl’s compilation. F e tâ v â . Ms:
Fatih Library, Ali Emiri 80; Fetâvâ. Ms: Bayezid General (Umumi) Library 1151. ‘’''Fbussıfûd Efendi âsitâaesine müntehi oldukda nazar-i ekşir eserleri ile mütlehir ve mübabl olub böş-nüvlslik münâsebeti ile kâtib-i mekâtib ve mürâsalatı ve câm f-i fetâvâ ve münşa ’atı olm uşdı. "‘^Atâ’î: 351. See also Akgündüz. (1996): 442.
K ashf al-zımûn·. vol. 2, p. 1220.
93 Kâtib Çelebi reeords another Fatwa album compiled by Veli el-İskilibi known as
Veli Yegân (d. 998/1589-90).^^’ His compilation consists of the fatwas of the
predominant chief muftis of the 16*** century: **Air Cemâli (Zenbllli), tbn Kemâl, Sa‘^dl
Edendi, Çivizâde Efendi and Ebussu‘^ûd Efendi.This compilation seems to have
served as a kind of semi-official catechetical codex of the Ottoman chief muftis for the
Ottoman executors of law.
In the 17“* and 18“* centuries many new fatwá compilations of the şeyh ül-İslâms
were added to the literature of fatwá collections. The most well known of those arc
Fetâvâ-yı MinkârT-zâde (also known as Fctâvâ-yı ^Atâ’ullâh) of Minkâri-zâde Yahyâ
Efendi (d. 1088/1677)^^^, Fevavâ-yı AnkaravT oí Ankaravi Mehmed Emin Efendi (d.
1098/1687),^^^* Fctâvâ-yı"A ll E fendi oí Qáiúc-d\i "Ali Efendi (d. 1103/1692)^^^ Fetâvâ-
Ibid: vol. 2, p. 1219-20; see also ‘^Atâ’I; 313-4; Akgi’mdüz. (1996): 442. For one of the copies of the compilation see: Fetâvâ. Ms: Siileymaniye Library, tsmihan Sultan 223. ‘A ti’l records that: ...mclânür kâtib ül-fetâvâsı ve hüsn-i batt ve imlâsı omağın fevâ’id-i latifeyişâm ilm eeâm f- şerife tertlb itmiş idi. A^lâm-ı ^ulemâ'-ı Rûmdan mevlânâ' ‘A lt
Cemâli ve Kemâlpaşa-zâde Ahmed Efendi ve Sa‘dl Efendi ve Çivi-zâde Efendi ve Ebussıf ûd
Efendi huz.erâtının fctâvâ-yı şerJfelerini intihâb ve bir müstakil kitâb itm iştir' (314). Altınsu, Abdülkadir. (1972): 93; Uğur, Ali. (1986): 451; Özel, Ahmet. (1990): 141. "Ata’ullâh Efendi (d. 1127/1715) was the disciple of Minkârlzâde Yahya Efendi who, later, compiled the fatwas of his master. "Ata’ullih became also şeyh Ül-İslâm at the beginning of the 18”’ century. Yayla, Mustafa (1995): 444-45. Altmsu, Abdülkadir. (1972): 96; Özel, Ahmet. (1990): 136. Brockelmann: vol. 2, p. 575, supp. vol. 2, p. 647. Fetâvâ-yı Ankaraviv/as published in Istanbul, 1281/1864-5. Altmsu, Abdülkadir. (1972): 95; Krüger, H. (1978): 74. The compilation has also a published edition: Fetâvâ-yı ‘^AliEfendi, ed. Salih b. Ahmed el-Kafavi, vols, Istanbul, 1311/1893-4..
94 yi Feyziyycoi Seyyid Feyzullah Efendi (d. 1115/1703).^^^ On the other hand Behcet iil-
of Yenişehirli ‘^Abdullah Efendi (d. 1156/1743-44) has an interesting story gives
some clues about the methods of fatwa-compilation. Before the available edition
there had been another version of the fatwi collection attributed to Yenişehirli
‘^Abdullah, which had been disorganized and thus not handy for the reader. Metuned
Fakhl el-‘^Ayni, who was the fatwi emini to Yenişehirli 'Abdullah, reorganized the
collection and classified the fatwis in accordance with the order of the furii' manuals.
Furthermore he added the relevant Arabic quotations form the authoritative furi'
manuals under the each fatwis with the indications of the chapters and the sections
from which the quotations were extracted. This special edition was entitled as Behcet
ül-fetâvâ and became the most favorite compilation of the late 18**^ century. It must
have been very practical for pedagogical purposes and for the provincial muftis who
were expected to express the statements from the authoritative manuals basing their
legal opinions in their fatwas. Later another edition which contains only the Arabic
quotations was composed under the title of NuqUlal-BahJat al-fatâwâbVl^Arabiyya}^^
possibly in order to prevent the copyists from making mistakes in Arabic passages and
in indicating the chapters and the sections from which the quotations were extracted.
Altmsu, Abdiilkadir. (1972): 98-101; Kriiger (1978): 75. The published edition see Fetavi-yi Feyziyyemsha’n-nukül. Istanbul, 1266/1849-50. Altinsu, Abdiikadir. (1972): 110; for the published edition see Behçet ül-Fetivâ. Istanbul, 1266/1849. Süleymaniye Library, Esad Efendi 576. Özel. (1992b): 346. “ ’'Özel. (1992b).
95 How these compilations were read, for whom it may have been written, and what particular function they may have served in the Ottoman legal culture? We can discuss these questions under the light of the codicological characteristics of the fatwa codices.
The method and order of classification of the fatwas in the compilations seems to be borrowed from the terminology of furif^ and fiqh manuals. Most of the time they begin with the chapters about worship such as kitab ut-tabaret (cleanliness), kitab us- saiat (worship), kitab ii§-sehadc (testimony), kitab uz-zekat (alms), kitab us-savm
(fasting), kitab ul-hac (pligramge). Thereafter the compilations generally continue with the chapters related to family and marriage such as kitab un-nikah (marriage contract), kitab ut-talak (divorce) and kitab iir-nza’ (consent). Thirdy the chapters about legal status of individuals seem to arranged, such as kitab Ul-ftak (manumission of slaves), kitab ul-Iakit (foundling), kitab iil-abik (escaping slave), kitab ul-cihad (about non-
Muslims) and kitab u l-m e fk u d person). Fourth category might be identified as economic and commercial regulations such as kitab u^-^irket (commercial enterprise), kitab iil-beyk (sale), kitab /w-ya//(barter), kitab ¿//-Aavafe(assignment, cession), kitab iiJ- kefalet (bail). Fifth category maybe on religious endowment, under the chapter kitab ul- evkaf. Sixth category might be determined as the problems about the judicial process such as kitab if-jeZradl? (testimony), kitab i/Z-ve^a/ei (deputyship in the court), kitab ud-
(legal proceedings), kitab oy-yi/ZA (settlement o f di.spute). Seventh category seems to be related with ownership problems for money, property and slaves, such as kitab ul- mudaraba (silent partnership), kitab ul-ariyet (loan), kitab ul-vedf a (entrusting), kitab t/Z-AZZ>e (donation), kitab ul-icaret (rent), kitab ilZ-veZa’(about the relationships between former masters and freed slaves), kitab ul-ikrah (abominableness), kitab ul-me’zun
96 (about slaves with limited legal rights), kitab ul-gasb (usurpation). Eight category can be identified as land tenure such as kitab ül-maksime (sharing, participation), kitab iil-
(sharecroping). Ninth category can be established as criminal law such as kitab
ul-cinayct (capital offense), kitab iid-diyet (blood indemnity). Besides these general categories there are different chapters such as kitab ü§-§üféa (advocacy), kitab iiz- zebayih (about slaughter animal), kitab ü^-e§ríbe (about drink and alcohol), kitab us- sayd(about hunting), kitab ul-hünsá’(about homosexuality).
Under the light of the table of contents of the fatwa compilations it is reasonable to argue that by no means were all the fatwas in the compilations to be used in the actual litigations.^·^^ There are a number of fatwas in the compilations that seem to have been issued for moral and doctrinal purposes. The broad thematic range in iftá’ reflects also the fatwa compilations. Especially the fatwas about worshipping seems to have been issued to inform people about the practical requirements of their religion rather than a judicial problematic.
Sometimes the textual disposal of fatwi compilations are rearranged by the later copyists for different purposes. From time to time the copyists subdivided a single chapter of the original version into two sections. For example two copies of Fctava-yt
‘^Ata’uIIah Efendi have different chapter-orders. The first copy^^' is divided into 95 chapters, whereas the second copy into 90 chapters. The extra 5 chapters of the first copy are not due to the additional chapters of the first copy but only because some chapters are sub-divided, without any difference in sequence of the text, in the first
Gerber. (1994): 86. McGill University Islamic Studies Library, Ms: 56.
97 copy. For instance the second section of the second copy, namely kitab us-salavat (ff.
3b-10a), was available in the first copy in three sub-divisions as kitab us-salavat (ff. 3b-
10a), Ma-yata‘alluk ul-hattb ve’l-imam ve’l-mu’ezzin (ff. 10a-lib) and Fri-cena'iz{fi.
10a-12a); On the other hand some chapters of the second copy do not appear in the first copy. For instance the chapter on Kitab ul-hudud in the first copy (ff 36b-41a) is divided into two, namely Kitab ul-hudud(ii. 29b-33a) and ft't-ta‘zlr ve’te'dib ve’J-habs
(ff. 33b-40a) in the second copy. Similar situation is for Kitab ur-nza‘ fi’I-muharramat
(ff 58b-63a) of the second copy which appears in the first copy as two different chapters, Bab ul-muhanamat (ff 74b-79a) and Kitab ur-nza‘ (ff. 79b-82a). The reason behind these subdivisions of chapters in different copies might be the intention to rearrange the text for different purposes. The subdivisions make the textual classification more detailed and systematic. Since there was no pos.sibility to express all the fatwas in the table of contents, by making the chapterization more detailed, the compilation becomes more handy for the reader in finding the fatwas for particular subjects.
Most of the time some additional fatwas are transcribed in the margins in the fatwa compilations, similar to the marginal commentaries. The additional fatwas seem to have been transcribed generally by the owner of the book to enrich the collection in the text for practical purposes. The additional fatwas might belong to different muftT.
For example in a copy of Fetava-yi ‘^Ata’uIIah EfendP^ containing fatwas of MinkarT- zade Yahya Efendi (d. 1088/1677) there are hundreds of additional marginal fatwas of
McGill University Islamic Studies Library, Ms: 169. McGill University Islamic Studies Library,Ms: 56.
98 different muftis, transeribed by different hands, most probably those of the former owners (see picture 26). In this particular copy there are additional fatwis o f‘^Ata’ullih
Efendi (ff. 57b, 226a, 253b) who might have been Mehmed “^Ata’nllâh (d. 1127/1715), the compiler of the text and the later chief mufti; 'Abdullah Efendi (ff 92b, 235a, 235b) who might have been another later chief mufti, Veşşâf'Abdullah (o. 1163-1168/1750-
1755), 'All, mufti at Kesnye (Kastoria) (fif. 210a, 325a); Mustafa, mufti at Üsküb
(Skoplje); 'Abdullah, mufti at Ergirikasri (Gjinokaster); 'Abdüşşamed, mufti of Yanya
(loannina), and many other provincial muftis. Generally the additional fatwas were concentrated in some special chapters depending on the owners’ interests. In this particular copy, for example, the additional fatwis are mostly concentrated on the section kitâbu’I-buyü‘ (chapter on sale) (f 210b-216ba). In this section there arc 52 additional fatwis installed. Interestingly enough these fatwis seem to have been transferred from another compilation, so called Fetâvâ-yı ‘Air Efendi of one of the chief mufti Çatalcalı 'All Efendi (d. 1103/1692).
Besides the compilations composed by professional authors and compilers, there are special fatwi albums arranged by individuals through sticking the original fatwis into special scrapbooks (see picture 24 and 25)P^ These albums generally contain different fatwis of various muftis. Most often they were arranged by the kadis through collecting the fatwis submitted by the litigants in their trials and sticking them
See Gacek and Yaycioglu, no. 11. See Fetâvâ-yı yapıştırma and special fatwi album belongs to Dr. Efdal Batmaz of Ankara University (picture 24).
99 into a special album. Generally the fatwas are arranged under some chapters similar to the professional fatwa compilations. However it would not be reasonable to expect that these albums were arranged in a standard order like the professional fatwa compilations.
The albums must have been formed for much more practical purposes than professional compilations. Accordingly the chapters and order of them should depend on the compiler’s immediate purposes in arranging the album. The compiler can omit some standard chapters or add some special sections for his own purposes.
Under the light of the above examples, I can say that the fatwa codices were highly used for practical purposes, not as a conventional manuscript. The codices had active life, which were enlarged and elaborated by the owners. They were not codices serving pure intellectual or pious functions, which were to be read and preserved on the shelf of libraries, but rather, they were actively penetrated by the owners writing many additional notes to be used in the legal transactions.
2.d Conclusion
As I have mentioned in the introduction in the historiography of Islamic legal culture the institution of legal consultation (ifta’) is predominantly evaluated as one of the most self-reflected, informal, popular and state-free establishment of the Islamic legal practice.^·^^ However the Ottoman practice of fatwa-making demonstrates that in the empire the fatwa-issuance of the chief muftis were highly bureaucratized, formalized and systematized. The office of fatwa-issuance for petitions of the private
236 See the ownership statements in Fetava-yiyapi^tirma.
100 individuals was entrusted to a special department which had a special system of working and determined office hours. It was executed by a permanent personnel, subordinate to the şeyh ül-İslâm. The fatwi department functioned as a mediator bureau between the individual petitioners and the chief muft7. During the mediating process the queries of the petitioners were reconstructed by the fatwa clerks in a systematic legal problematic expressed in a que.stion (istifti’) under the instructions of legal modalities and formulas, to be submitted to the mufti. In the process of fatwa-making the essential step was the formulation of the question section in the fatwa text. In the Fatwa department, this process was carried out by the fatwi clercs. From the lö*** century onwards, the Ottoman fatwi-making technology was being consolidated and the question formulation seems to have been very systematized. During this reconstruction of the legal problematic, the fatwi-paper was decorated in a visual image representing a bureaucratic style which is not very different from that of the entire technology of Ottoman document-making.
Throughout the centuries a standardization was carried out by the Ottoman fatwi- makers in terms of textual components, techniques of narrative construction and visual image. In other words the Ottoman chief muftis and fatwa clerks established an ex- ofticio in fatwa-making, which determines the mode of textual, linguistic and visual construction of the fatwis. The fatwas of the chief muftis were compiled by their disciples into fatwa codices. Some of the fatwi compilations seem to haveserved as a semi-official catechetical codex of the Ottoman chief muftis. I think it would be
Hallaq. (1994): 60; Makdisi, G. (1974); idem. 1984); idem. (1985); Messick. (1986); Powers. (1990); idem. (1993); Reinhard. (1994).
101 legitimate to name these development in the Ottoman legal culture as bureaucratization o f the legal consultation.
The Ottoman chief muftis, as it was mentioned, were official and bureaucratic figures in the Ottoman state apparatus. Notwithstanding we know that from the
“^Abbasid period onwards the Islamic states in history always intended to attract the jurisconsults and attached them to their bureaucratic apparatus.^^^ However in the
Ottoman empire the situation seems to be a bit different. Although conventionally the official jurisconsults were appointed to serve the state by suggesting legal opinions about the political decisions, in the Ottoman empire the chief muflTs were not only to serve the state but also functioned as supreme jurisconsults of the empire, issuing legal opinions also for the private applications of the ordinary individuals. The bureaucratization of the fatwa-making seems to serve regularization of the relations between the people and the “offtciar department of legal consultation. The fatwa department, as a bureaucratic institute, is an important agent to control the legal knowledge, or at least the process of knowledge production, by the state, not for the state affairs but for the everyday legal transactions.
Schacht. (1964): 49-52.
102 ^ Chapter Three ^ Fatwa in the Ottoman court
Mcs’ele: Fetva-yı şerife He amel etm eyib tahrif edene ne ¡azım olur?
El-cevab: Kâfir olur. - E bu ssıfû d'
n the Ottoman historiography court registers have been scrutinized by many Ihistorians among which one should first and foremost mention Halil İnalcık^, Mustafa Akdağ^ Özer Ergenç·^, Uriel Heyd'**, Richard Jennings^, Abdülaziz Bayındır’ and
Haim Gerber**. Ottoman court registers have been examined as the principal source of the Ottoman social and economic history owing to the extensiveness of the functions of the court registers. They were not used only for purely legalistic purposes, but they contained almo.st every notary registers, the copies of the sultanic decrees as well as the records of the lawsuits. Nevertheless, the legal function of the court rcgi.sters and the procedure of the kadi court is a different problem that should be analyzed. The works of
Halil İnalcık’, Uriel Heyd,'* *’ Abdülaziz Bayındır,'* Richard Jennings*’ and Haim
' “Problem: What will be done to the one who [kadi] does not behave accordingly and disregards the fatwa ? The reply: he will be an infidel- Ebussu'ud, Selle: 17. ^ (1993); (1986); (1953-4); (1960). ^(1995). "(1995). ’ (1973). * (1978a); (1978b), (1993). "(1986). *(1988); (1994). ^(1986). ’°(1973).
103 Gerber 13 , in this respect, contribute significantly to the studies on the working, function and status of the Ottoman kadi court. Especially the elaboration on the Ottoman court procedure carried out by Abdiilaziz Bayındır, who is the head of the Istanbul müftülük archive housing Istanbul court registers, provide us with a detailed examination about the procedural law in the Ottoman empire.
The purpose of this chapter is to analyze the relationship between the legal consultation and the judiciary in the Ottoman legal culture. For this purpose different cases selected from Ankara court registers will be examined. In the first section the characteristics of the court registers and the way of incorporation of the fatwa into these documents will be examined. In the second section the status and function of the fatwa in the Ottoman court procedure will be handled under the light of some lawsuits from
Ankara court registers. In the third section I will discuss the judicial independence of the kadi court and relation.ships between the kadi, mufti and the state.
3.1. Fat was in the court registers
In Ankara court registers {sicill-i inahfur) fatwas are mentioned in different occasions. Firstly in the sultanic decrees {ferman) copied into the registers, fatwas are mentioned from time to time. These edicts which were sent to the kadis of Ankara, sometimes also to the muftis and occasionally to the governors, are most often about a
'*(1986). (1978a); (1978b). ’’ (1994).
104 litigation which was brought before the chancery of the State {divaiif^ by the claimant.
In the textual order of these decrees usually, after addressing the receiver with his noble titles, the litigation is exposed in claimant’s own words, thus certainly form his perspective. In his exposition of the litigation the claimant, after summarizing the case and formulating his claim, adds that he has also a fatwa, either from the chief or a provincial mufti, that supports his argument.*^ Following the arguments of the claimant, in the second section, it is ordered by the sultan that when the decree is received by the kadi, he would bring the both parties, the plaintiff and the defendant, together. If the litigation has not been terminated and if 15 years has not yet passed (statute of limitation), the kadi is ordered to handle the litigation carefully and analyze the fatwa submitted by the claimant cautiously. If the problem exposed in the fatwa is concordant with the litigation he is ordered to adjudicate in accordance with the ruling of the fatwa”
(...VC clinde oian fetva-yi ^enfeye nazar idub gdresis, kaziyye ‘'ar/. olunan gibi ise ol
‘‘‘ For the statuses and functions of the Ottoman Divan see: İnalcık. (1973):89-102; Üçok and Mumcu. (1991):206-214. '^\..mcvlini’ Ankara kidlsi zide fazluhuu tevkf-i reff-i hümâyûn vâsıl olacak ma‘^Iûm ola ki, dârende-i fermân-ı hümâyûn Nialband-oğlu nâm zjmmi hâb-ı sâ'det m e’âbıma ‘'arz-ı hâl idüb “bandan akdem AnkaraSancak Begi adamlanndan biri gelüh bir zımminih evine konab...geIüb cebren hamr alubşerb-i hamr idüb soSra ğavga itmeğe müşârün ileyh zımmimezbûr adama darb idüb ol darbdan fevt olub gerü mezbûr bey beni t ut ab ‘sen hamr virdim sebeb oldın ’ deyu sekiz bin akçamı şe f-i şerife muhâlifalub kabz eyledi. Ş e f le görülmesin taleb iderim, elimde fetvâ-yı şefiyyc vardır”deyu bildirdi..!' Ankara, sicili. 2/749 (see picture 30); for similar formulations see Ankara, sicili 2/769 (picture 31); Ankara, sicili 1/1080 (picture 32); Ankara, .«c///l/109 (picture 33).
105 bâbda emr-i şef-i kavf ve fetvâ-yı şerife ile ‘^âmil olasız...)}^ This formulation most
often followed by a second injunction directed to the kadi that he should prevent
anybody from attempting to behave against the sacred Shari'^a, imperial order and noble
fatwa. In the sultanic decrees referring to the fatwa, the text of the fatwi habitually
seems not to be transcribed.
In Ankara court registers, besides the sultanic orders, fatwis are mentioned in the judicial verdicts {flam ) occasionally. The construction of the verdicts, after
introducing the litigants, i.e. the plaintiff and the defendant,*^ generally begins with the assertion of the claimant, which is exposed in his own sentences.**^ If the claimant holds
“...Zroi// buyurdum ki hükm-i şerifim vardıkda husemâyı beraber idüb bir defa Ş efle sortlur bilüb faş! olunmamış ise ve üzerinden on beş yıl mirür itmiş dt^il ise ber-müceb-i Ş e f-i şerif vech-i ihtimâm-hakk üzere teülş ü tefahhuz idüb ve elinde olan fetvalarına nazar idüb göresin kaziyye ‘^arz olunan gibi ise emr-i şef-i şerifle ‘âmil olub... ’'Ankara, sicili. 2/749 (see picture 30); for similar formulations see Ankara, sicili 2/769 (picture 31); Ankara, sicUl 1/1080 (picture 32); Ankara, sicili 1/109 (picture 33). “...Şef-i şerife ve emr-i hümâyûnuma ve fetvâ-yı şefiyye muljâlif bin ba‘ad iş ittirmeyesin,med ü def idesin..'' Ankara, sicili 2/749 (picture 30); for similar formulations see Ankara, sicili 2/769 (pictiue 31); Ankara, sicillMlObQ (picture 32); Ankara, sicili 1/109 (picture 33). '’‘‘[Sebeb-i tahrir-i kit âb] bud ur ki, Mebmed b. Hidtr mabûl-i kazâ’da Akob vded-i Ellez{‘?) mahzarmda taknr-i da‘vâ idüb..У Ankara, sicili HIM (picture 34); 'fiudur ki Kemâl Çelebi Efendi b. îbrâhim meclis-i Ş e f de Hayreddin Efendi mahzarında şöyle ikrâr ü ftir â f idüb..У Ankara, sicili 2/226 (picture 35). "‘Budur ki {...) şöyle takrir-i da‘vâidüb “bâlâkarye-i Tatlar türâbtnda KaradU dimekle ma‘ru f mevzfde vâkf mâlûmat ül-hudûd bağ ki içinde olan nice mzd ceviz ve bir...ceviz ağacı ile birlikte müteveffa babamdan baña intikâl itmiş idi. Hâlâ mülk-i mevrûşumdur lâkin mezbûr [defendant] benim taşarruûna mânf olur laleb iderin”deyücek..'' Ankara, sicili 2/470 (picture 36).
106 a fatwa, most often somewhere in his exposition, he indicates that he has also a fatwi
supporting his argument from either the chief or a provincial muftl.^” Sometimes
however, after the exposition of the claim by the claimant, it is separately expressed
that the claimant presents a fatwa {ibraz idüb) before the court to support his
argument. At times the plaintiff mentions, besides the fatwa, a voucher {hüccet) which
is to be submitted as a documentary evidence to support his claim.^* Occasionally the
fatwa is held not by the claimant but by the defendant as an authoritative opinion to negate or retract the claim of the plaintiff. In this case the fatwa is most often mentioned, after the exposition of the claimant’s assertion, in the defendant’s disavowal in the verdict.
Unlike the sultanic decrees, in the juridical verdicts the text of the fatwa is, not always but frequently, recorded in toto?^ Most of the time the fatwi is transcribed, not
’’'Budur ki{...) “(...) talebiderin, buhususa eiiwde fetva-yişerife vardır, görülsün’’deyicek..^ Ankara, sicili. 2/347 (Ankara 37). ""Budur ki (...) “(...) evvel ki ağalarından iken dahi nice defa ibik itmiş (...) "ayb oldı^una elimde fetvam vardır redd olunmasın murâd iderüm” deyücek...” Ankara, sicili 2/21 (picture 38). ""...bu minval üzere mabeynimizde tevzf olunmuşdur” deyu emr-i şerif ve fctvi-yı münif ibraz idüb..!” Ankara, sicili 2/226 (picture 35). ""...tarafeynin şâhidleri td d il ü tezkiye olundukdan sonra mezbür Ohan ’nın veresesi fetvi-yı şerife ibraz edüb...” Ankara, sicili 2/110 (picture 41). ""...hilâf-ı Ş ef ve muğayyir-i kânun beni be}f ve hatunumu Yalıncak şeyhi Mehmed Dede nâm kimesneye beyf eyledi, büccet-i Şefiyye ve fetvâ-yı mefiyye vardır” dedüği husûsin görü/mav/.„’’Ankara, sicili 2/1173 (picture 39). ""...deyücek mezbûrdan su’âl olundukda “abar-ı eyyam revâyıca ftibâr idüb m üûî ül-enâm hazretlerinden fetvâ’yı şerife vardır ve hem bize ikiyüze flori virmeğe hükm olunmadı” dediklerinde...” Ankara, sicili 8/313 (picture 40). Also see Jennings. (1978a): 134.
107 separately but within the main text, as an integral component of the verdict.^'“^ However occasionally the text of the related fatwa is recorded separately, before or after the verdict. If the adjudication is carried out under the light of the fatwa, it is generally stated that the decision is made in conformity with the fatwa presented in the court at the end o f the text.^^
On the other hand in Ankara court registers one can frequently meet separate fatwas, which is not part either of a sultanic decree or a juridical verdict.^* These separate fatwas seem to have been written for different purposes. We have to recall that the court registers are not official documents in its absolute and modem meaning; they are rather semi-official and semi-personal record books.^*^ One can not expect thoroughly standard and systematized technology of record-keeping in the court registers. Accordingly kadis and scribes usually seem to have recorded non-official, unattached and even personal elements in the registers.’*’ Separate fatwas recorded in
yokdur”deyiicek Yabudi-imezhurŞeyh ül-İsIam hazrethrindea fetva-yi şerife ibraz edüh nazar kılundıkda ‘‘Zeyd-i miklim ‘'Amr-i Yahııdiye bir mikdâr esbâb emânet virüb ‘dâr-ı şehirde evime teslim ile’ dişe ‘^Amr ‘yolda esbâb-ı merkûmı kendii esbabım ile ığurlatdım dişe sözine Ş e f an '^amel olunur mı ? el-cevâb: tagaddi ve ta^şir itmedüğine yemin iderse olınur {...)deyuyemin teklifolumr”buyrulmağm... "Ankara, sicili HIM (picture 34). Also see Ankara, sicili 1/92 (picture 42); Ankara, sicili 2/1110 (picture 40); Ankara, sicili H IM (picture 34). Ankara, sicili: 2/969 (picture 43); Ankara, sicili: 1/92 (picture 42). “...haber virdikde ber-mûceb-i fetvâ-yı şerife be/-i mezbûrun fe.sbine hükm olunub...” Ankara, sicili 2/470 (picture 36). Ankara, sicili: 8/2 and 4 (picture 44); Ankara, sicili: 2/1138; Ankara, sicill:21\032. Tyan. (1960): 260; also see Tyan. (1955); Professor Ortaylı states that in some registers, besides verdicts, fatwas and copies of the sultanic decrees and diplomas, there are even some short poems, stories and witty phrases. Ortayh. (1994): 65
108 the court registers might be explained in this respect. The kadis of Ankara seem to have been interested in recording some fatwás that might have been needed later or that might have seemed interesting to the kadi and deserved to be noted. Occasionally in the registers some fatwis appear to have been prepared and signed by the muñís himself as if it is an original fatvv'i with its standard calligraphic style in the registers.^’
In Ankara court registers most of the time the word '"'‘fetva is followed by an honorable adjective, such as fetva-yi şerife (noble fatwa), fetva-yi münife (exalted fatwa), fetva-yi mefiyye (sound fatwa) or fetva-yi Şeflyye (sacred fatwa). I have not recognized yet any sound implication indicating that these adjectives are to refer to the fatwas of the special muftis, such as şeyh ül-İslâm or mufti of Ankara. At this moment I can say that from the court registers of Ankara it is hardy possible to identify the muftis issuing the fatwas referred in the registers. Even when the fatwa is totally exposed in the text the name of the mufti is rarely mentioned. Sometimes however it is recorded that the fatwa presented before the court is from the wüñr-i zaman (the m ufti of the time).^^
Muñí-i zaman is most probably the mufti of Ankara during the litigation.^“* On the other hand if the fatwi is from the chief mufti, most often it was recorded somewhere in
For example in Ankara, sicili: 8/2 and 4. (picture 44) there are two attached fatwas signed by el- fakir Nasreddln. In Ankara, sicili: 2/969, 970 and 971, for example, two fatwas are signed by el-lakir Mustafa. On the other hand Professor Jennings, in his analysis on Cyprus coint registers, alludes that the name of the muftis are generally mentioned in the court registers. Jennings. (1993): 87. “...''adem-i cevazına fetvam vardır deyücek m üfil-i zamandan bir fetvâ-yı şerife ibraz /i/üA..’’Ankara, sicili. 2/470. (picture 36). '’\..deyü minvâl-i meşrüh özere edaları lâzım olmağ üzere mûlil-i zamandan bir fetvâ-yı şerif ibraz itdükde..." AcaVara, s7c///2/1298 (picture 45). The usage '^müill-i zamâıi' seems to be similar in meaning with the usage "‘hâkim ül-vakt"
109 verdict that the fatwa presented before the court was issued by the “şeyh ül-İslam” or
3.2. Fatwa in the court procedure
Under the light of the textual evidences reflected in the court registers we can examine the function of the fatwa in the procedure of the Ottoman court. For this purpose some lawsuits selected from Ankara court registers will be analyzed here. In
Ankara court registers one can occasionally encounter lawsuits in which a fatwa was presented by one of the litigants. It is possible to find cases with fatwi almost in every branches of Islamic law: law of inheritance^^ law of property^^, law of rent and hiring^®, law o f pious foundation.s'^*^, criminal law“*®, law of seizing {ğaşb)^^, law of non-Muslims under Muslim state"*^, law of liability^^, law of commerce“*^, law of slaves“*^ law of
"'...mezbiir Mehmcd ol vech He zâyt itdvğine ilmim yokdur deyiicek Yahüdi-i mczbûr^eyb
ül-İsIâm hazretlerinden fetvâ-yı¡¡erlfe ibrazidüh..:' Ankara, s ie ill HIM. (picture 34). ‘\ ..s u ’al ohmdukdH ahar-ı eyyam revâyıca ftihâr idüb m iiiti ül-enâm hari'etlerinden fetvâ-yı şerif vardır...” Ankara, sicili. 8/313 (picture 40). Ankara, sicili: 2/1110 (picture 41). Ankara, sicili: 1/105 (picture 47); Ankara, sicili: H2A1 (picture 37). Ankara, sicili: 1/255 (pictıu'e 49). Ankara, sicili: 2/226 (picture 35). Ankara, sicili: 2/1298 (picture 45); Ankara, sicili: 2/749 (picture 30). Ankara, sicili: 1/1080 (picture 32); Ankara, sicili: 2/746. (picture 50). Ankara, sicili: 8/313 (picture 40); Ankara, sicili: 1/92 (picture 42); Ankara, sicili: 1/109 (picture 33). Ankara, sicili: 2/470 (picture 36). Ankara, sicili: H IM (picture 34). Ankara, sicili: 8/313 (picture 40); Ankara, i/c7//:8/l 1.
110 marriage'’*^ and law of land.“^^ Fatwas seem to have been presented by litigants from different social statuses: women·^*, slaves“*’ and non-Muslims'”'’. As it was mentioned, most of the time it is not possible to identify the muftis of the fatwas. Nevertheless, it is reasonable to say that there are fatwas both from the muftis of Ankara^* and the chief muftis. Almost always the litigant presenting a fatwa won the case, I have encountered only a single case that the litigant holding a fatwa lost.'^^ Fatwas were presented both by the plaintiffs and the defendants.
After giving these statistical information, I want to analyze the court procedure and the function of the fatwa in trial. Before hand, however, it would be helpful to remember the main characteristics of the procedure of the trial in the Islamic legal culture.
An ordinary trial started with the exposition of the claim by the plaintiff {takrT r- ud-dd^va).^* After the exposition of the claim the kadi asked the defendant to reply to the assertions of the plaintiff. If the defendant admitted the claims of the plaintiff {ik ra r,
Ankara, sicili'. 2/21 (picture 38); Ankara, sicill·. 2/1173 (picture 39). Ankara, sicill·. 2/969. Ankara, sicill·. 2/739 (picture 46). Ankaia, sicill·. 2/746 (picture 50). Ankara, sicill·. 2/1173 (picture 39). Ankara, sicill·. 1/92 (picture 42); Ankara, sicill·. 1/109 (picture 33); Ankara, sicill: 7/712 (picture 34). Ankara, sicill: 2/470 (picture 36); Ankara, sicill: 2/1298 (picture 45). Ankara, sicill: 8/313 (picture 40); Ankara, sicill: HIM (picture 34). Ankara, sicill: 8/312. ^ For the procedure of the court see: Ergenç. (1995):80-87; Heyd. (1973): 244-247; İnalcık. (1986); Jennings. (1978a); idem. (1979b); idem. (1993); Ortaylı. (1994): 51-62; Schacht. (1964): 188-198; Tyan. (1960): 236-239; idem. (1955).
Ill ftirâf^ the lawsuit was decided. If he denied {inkai) the accusations, this time the kadi asked the plaintiff to produce legal evidence {beyyine). As an evidence the testimony
{şehâde) of witnesses (şuhûd) was much more sound and respected than any written documents. After the presentation of the witnesses of the plaintiff and the submission of the documentary evidence, the defendant had also right to produce his own evidences. If there was a contradiction among the witnesses, kadi was able to inspect {td^dTl ü tezkiyef^ their reliability {^adl), and prefer the testimony of more reliable witnesses.'^*
Once kadi was convinced about the reliability of the witnesses, he was obliged to make his decision under the light of their testimony. Sometimes the kadi might require special investigation (keşf) under the supervision of his substitutes {na’ib f^ and he might demand for a report from the experts {ch!-i vukü^. If the plaintiff could not produce his evidence, for example if the witnesses were absent, the kadi ordered the defendant, provided that the plaintiff demanded, to take the oath. If the defendant took the oath, the case was dismissed. If he rejected to take the oath {nukul), the judgment was given in favor of the plaintiff.
Fatwa, in a lawsuit, was one of the legal instruments for the judge in the trial, like testimony of witnesses, oath and documentaiy evidence. Nevertheless although these three legal instruments had similar functions, fatwi seems to have been very special in terms of its status in the court procedure. The trial can be understood in two
"...deyii eda-yişehâdet idüb tarafeynin şabidleri ta’’dll ü tezkiye olımdukdan sonra., f Kvkaxa, sicili: 2/1110 (picture 41). “...tarafeynin müşahedeleri mülke mukayyed olmak üzere şehidet itm ^n , mûceb-i Ş ef-i şerTf^mml-i...nin beyyinesi evlâdır buyrulmam..''knYatu, sicili. 2/1110 (picture 41). see Ankara, 5/c///:2/347(picture 37).
112 stages. In the first stage, so called inquiry, the evidences were evaluated by the judge to understand “what really happened.” In the second stage, so called adjudication, the judge gave his ruling {hüknî) under the light of the prescriptions of law. While the testimony, oath and presentation of the written documents were taken into consideration during the inquiry to verify the accuracy of the statements of the plaintiff and defendant; the fatwi took a part in the adjudication stage to obtain a legal opinion about legitimate ruling of the litigation. Let us analyze a law suit in this respect.
In Tatlar, a village in Ankara, Hasan, the real child {sulbl ogli) of blessed İmân Dede, came to the court, and set forth a claim in the presence of Ca'fer b. Seydl from the village of Güllükvirân; “I have inherited a garden {bag), whose boundaries are known, from my father, with a few miid walnut and a walnut tree in it. The garden is in the soil of Tatlar and localized in the area known as Karadil. It is certainly my inherited property. However Ca''fer b. Seydi prevented me from using my garden.” When this claim was asked to Ca'^fer, he replied that “Actually the aforesaid garden had belonged to blessed İmân Dede. After his death, when his son Hasan was a small boy, his guardian {vaşî) Kerem Dede sold the garden to me for 790 akça at the expense of îmân Dede’s debt. Thus the garden is my legitimate acquired possession.” Hasan responsed this defense that “ the garden and the walnut charge between 3.000 and 4.000 akças thus the aforesaid sale is faulty {‘^ayb). Furthermore while my father had the chattels, a pair of ox, a cow, a young calf, a young bull, a donkey and some dresses which were sufficient to meet the debt, they sold the immovables with a fraud (A//e). I have a fatwâ demonstrating the illegitimacy of the sale.” Hasan presented a noble fatwâ from the mufti of the time {miiill-i zaman)·, “if the chatters from the estate of a dead person are sufficient to meet his entire debt and the guardian of the orphan sells a garden among the immovables, is this sale legitimate ?” is asked, it was responded: “it is not.” When among the neighbors, some Muslims informed that îmân Dede had adequate movables to
113 meet the debt, the cancellation of the sale was decided in accordance with the fatwa. Muharrem 998/ 1589.’*
In this lawsuit the plaintiff directed his claim, the defendant replied, the plaintiff
directed his second claim against the defendant response. In his second claim the plaintiff added that he had a fatwa supporting his assertion about the illegitimacy of the sale. The kadi recorded the fatwa. Nevertheless the critical point was that the fatwa was
included in the adjudication process after the witnesses, here some Muslims among the neighbors, testified the veracity of the plaintiffs claims. The cancellation of the sale, which is also the ruling of the fatwa, was decided after testifying the condition that the
'"BudiiT ki Ankara kazasına tabf karye-i Tatlar’dan mütevefía İmân Ded’niñ şıdbl oğlı Hasan meclis-i Ş efe gelüb kazâ'-yı mezbüra tib f karye-yi GüHükvirân ahâlisinden Cft'er b. Şeydi nâm kimcsnc mahzarında şöyle takrfr-i d fv â idüb ‘hâlâ karye-i Tatlar türâbmda Karadil dimekle m früf mevzfde vâkf mflümet ul-hııdûd bâğ ki içinde olan nice müd ceviz ve bir ceviz ^acı ile birlikte mütevefía babamdan baña intikâl itmiş idi. Hâlâ mülk-i mevrmumdur. Lâkin mezhılr benim tasarrufuma mânf olur, taleb iderin’ deyücek huşüş-ı kaziyye mezbür C i fer'den su'âl olundukda “Û’l-vâkf işbuzikr olunan bâğ müteveflâ-yı mezbüruñ idi. İşbu oğlı Hasan sağır iken vasisi olan Kerem Dede müteveiîâ-yı mezbüruñ zarûret-i deyni içün yedi yüz toksan akçaya baña b e / itmiş idi. Benim minvâl-i meşrff üzere mülk-i miişterâmdır” deyü cevâb virücek mezbür Hasan “zikr olunan bâğ ve ceviz ağacı üç dört biñ akça idüb b e /-i mezbüruñ '^ayb olduğundan ma ’dâmenkülatdan babamm bir çiû öküzi ve bir ineği ve bir düvesi ve bir tosum ve bir merkebi ve b fzı esbâbı dahi olub deynine kifayet iderken, ‘^akân b e / idüb bir hile itmişler b e/-i mezbüruñ ‘adem-i cevâzına fetvâm vardır” deyücek müñl-i zamândan bir fetvâ-yı şerife ibrâz idüb nazar olundukda “mütevefíaniñ muballetâtından deynin ihâte ider menk ülat dan nesnesi var iken yetime vasi olan kimesne ‘'akânndan bâğın b e / eylese sahih olur mı ? deyü istiñá olundukda “sahih olamaz” deyü buyrulmağm ve clrân-ı müslüminden bfzı kimesneler “mütevefla-yı mezbüruñ deynine kifayet ider” deyü haber virdiklerinde ber-müceb-i fetvâ-yı şerife b e /-i mezbüruñ feshine bükm olunub bi't-taleb kayd olundı. Muharrem 998. Ankara, sicili. 2/470 (picture 36).
114 fatwi requires. In other words when the statements of the plaintiff was proved by the
witness, the concordance between the condition of the fatwa and the condition of the
real lawsuit was testified. Thus the kadi decided in accordance with the fatwi.
Sometimes fatwis are mentioned together with other written documents such as
hüccet, ftıknâme or şmımâme!’^ This does not mean that the fatwi and other written
legal documents had the same functions in the trial. Here I want to mention an assessment of Professor Richard Jennings about the function of the fatwi in the proceedings. In his praiseworthy analysis on Kayseri court registers, Jennings states that
“the fatwi was not introduced into the proceedings until after suit, defense, and witnesses had been called for. Only if there were no witnesses was the fatwi considered.In Jennings reasoning, if there was sufficient evidence from witnesses, there was no need for a fatwi in the trial. However, the documents shows that, even if there was sufficient evidence, the fatwi can be considered by the judge. Even if the kadi was convinced by “what really happened” with the help of witnesses, documents and oath, he might apply to the legal consultation for the legitimate ruling of the lawsuit at hand.
The fatwi should not evaluated as an “evidence” or a “proof’ for the litigation.
It rather is a legal opinion offering a possible ruling for the case. Before the inclusion of the fatwi into the trial, the “truth” of the litigation should be highlighted under the light of the evidences and oath. When the kadi was convinced by “what really happened,” he
...Zulkâdir’in elinde olan fetvâ-yışerîfe’ye nazarküub vemazmünı ‘"ala vecb il-azim müşbet hüccet-iŞe^lye veşmumâmeyena^kılubgöresin, kaziye“"arz olman gibi /.ve...’’Ankara, sicilt.
2/739 (picture 46).
115 gave his decision, what should be done. In this stage, while the kadi gave his ruling, he
applied to the fatwa, in a manner of consultation while deciding the legitimate judgment. The fatwa, for a Judge, was an authoritative opinion suggesting a legitimate
ruling of the particular legal problematic appeared in the particular litigation in
conformity with the abstract prescriptions of law.
Ifta served as a consultation for the kadi with the legal expert (muflT) before
issuing a judicial decision (huhn), especially in difficult, unusual or sensitive cases.^' In the Islamic legal culture, while the kadis were evaluated as legal practitioners and speciali.sts of law, as it was mentioned in the previous chapters, mufti were identified as the legal scientists as.sociating the theoretical accounts of jurisprudence with the mundane problems of judiciary. Accordingly when the fatwa was submitted to the court, for the kadi, it represented an authoritative opinion issued by an impartial legal expert about the case at hand. However in the Ottoman court ritual, this consultation was most of the time mediated by the litigant, since the fatwa was submitted to the courthouse, not by the mufti himself, but by either the plaintiff or the defendant. We know that, in spite of his honored role in the judicial system, the mufti was not a permanent member of the courl.^^ From time to time, however, the kadis seem to have been consulted with the mufti and requested fatwas about certain problems. In these cases, the kadis seem to have recorded fatwas into the registers by themselves to support and intensify their judgment. In this situation the fatwa is recorded, separately either above or under the verdict. For example from an undated document in Ankara court registers we team that
60 Jennings. (1978b): 157. 61 Masud, Powers and Messick. (1996): 10.
116 Himmet applied to the court and demanded to divorce his wife Meryem. He stated that previously his and Meryem’s fathers had wedded Meryem and him most probably without their wills. However he did not want to marry her and took a oath that they did not rest together {halvet-i sahihe). Kadi, in his judgment, approved the divorce. Under the verdict he transcribed two fatwas legitimizing the divorce under these conditions, from Mustafa, probably the mufti of Ankara at that moment.Since in the verdict it is not recorded that the fatwas were presented by the litigants, it would be legitimate to think that these fatwas were recorded by the kadi himself to support his judgment, perhaps after his consultation with the mufti.
Main purpose of the litigant in presenting a fatwa was to provide a theoretical support to his claim in the trial. Whenever his statements were “proved” through the evidences and oath, he asked the kadi to adjudicate in accordance with the fatwa which supported his very claim. Fatwa, for the litigant, seems to have been a kind of textual advocate supporting his arguments in the proceeding. As 1 have analyzed in the previous
Jennings. (1978a): 134; Tyan. (1960): 219-20. Ortaylı. (1994): 63-65. '^Dudur ki Himmet b. Mustafa medis-i Şeı^ ’de Meryem biat Hamza пат bakire muvacehesinde ‘bundan akdem benim babam ve merkúmeniñ babası merkûmeyi baña nikâh itmiş, lâkin mezbüre baña gerekmez, boş dur ve ele’l-ân halvet-i sahihe olmamış idik’ deyü yemin bl’I-Iâh eyleyüb vemerküme...el-vâkf bi’l-talebkaydolundt.” “Bu mes ’ele beyânındadm Zeyd bikr-i bâliğa olan Hind’i nikâh itdirûb halvet-i sahibe olmadın Hind-i merkûmeye tılâk verüb badehu ‘Amr’a tezvlc lâzım oldukda Hind-i merkümeye ‘iddet lâzım olur mı, beyân buyrula. Allâh a^lam. El-cevâb: olmaz. El-fakir Mustafa." “Suret-i mezbürda Zeyd ile Hind-i merküme ‘halvet-i sahih olmadık’ deyü yemin eyleseler yeminleri ile ‘^amel olunub Hind-i merküme ‘^Amr’a tezvlc olunmak câ’iz olur mı, beyân buyrula? El-cevâb: olur. Zâbir-i hâl bunları meknüb (?) d ^ il ise. El-faklr Muştala. Ankara, sicill·. 2/969, 970, 971. (picture 43).
117 chapter, in his application to the mufti or fatwa department in Istanbul, the litigant
exposed the litigation in his sentences and asked for a legal opinion. The exposition was
reconstructed into a legal problematic with a legalistic discourse and the muftT gave his ruling under that problematic. Since the fatwa maker formulated the legal problematic
on the base of the litigant’s expressions, without consulting with the kadi or the other party of the litigation, the basic problem was the concordance between the legal problematic expressed in the fatwa and the legal problematic in the lawsuit. This very concordance was the fundamental prerequisite for the fatwa to be applied in the
litigation. As it was mentioned in the previous pages persistently, in the sultanic decrees the kadis were habitually warned by the state to examine the fatwa delivered by the
litigant if it was in concordance with the real case in question.^ Nevertheless, unlike the testimonies and oath, fatwas were not binding legal opinions for the kadis. In other words, it was the kadi who decided if the fatwa was applicable to the lawsuit at hand.^'^
Let us examine another case in which various legal instruments take part:
The non-Muslims {nmmt) of Ankara have received a sultanic decree. In the decree it is stated that “The non-Muslims using the church known as Jlarab- nijiin in the parish called Mihriyar at the center of Ankara sent a envoy to my prosperous port and reported as ‘our chinch has been used from the days of yore {kadlmden beril) until the present. However some segments of our church tends to decay and needs to be repaired. When we intended to repair in conformity with its original form asiTsi), some outsiders prevented us from repairing in order just to seize our church. We have a noble fatwa in this respect.’ Now I
^ The general formula is “...fetva-yi şerife nazar kdub göresi, kaziyye ‘arz olunan gibi ise o f bâbda ...’’Ankara, sicili. 2/746 (picture 48). Also see: Ankara, sicili 2/739 (picture 46); Ankara, sicili 1/1080 (pictıne 32); Ankara, siciIlM\^5 (picture47). Jackson (1996): 145-152; Masud, Powers and Messick. 91996): 10-19 Reinhard. (1993): 18.
118 order that when you [the kadi] receive this noble edict, examine the situation. If the chm-ch really has been used from the days of yore until the present and if it really needs to be repaired, when they apply for repairing the church in conformity with its original form, have a look at the fatwa presented and behave in accordance with the prescriptions of the noble Shari'a.” In accordance with this noble sultanic decree the fatwa presented is examined; “If some segments of a church which is located in a parish and actively iLsed, needs to be repaired, is it legitimate to repair the church in conformity with its original appearance? The reply: Yes it is.” In accordance with the noble fatwa and exalted order, when arrived at church with the impartial Muslims, it was recorded that the aforementioned church’s wall adjacent to the house of non-Muslim Şirin, the son of Ball, needs to be repaired; and its wall adjacent to the road and some segments of its roof need to be restored. Accordingly the non-Muslims using the church were permitted to repair their church in confomiity with its original appearance. Receb 991/1583.^^
^'Budur ki Ankara zimmîleri yedlerinden emr-i şerif ül-vâcib ü-teşrif vârid olub, mazmün-ı hümâyûnda ‘nefs-i Ankara’da Mihriyâr nâm mahallede olan Harâb-nişân nâm kenisenin zimmîleri bâb-ı âdet m e’âbıma âdem gönderüb ‘kenisemizkadimden ile’l-ân müstamel olub bâ^zı yerleri harâb olub tamire muhtâc olmağm vait-i aslisi üzere tef mir ü termim itmek istedüğimizde rnücerred celb-i mâl içim hâriçden b^zi kimesneler hilâf-ı Şef-i şerif mânf olub bu bâbda elimizde fetvâ-yı şerife vardır’ deyü bildirdikde imdi buyurdum ki hükm-i şerl/im vardıkda göresiz, B ’l-vâkf kadimden ile’l-ân müstâ^mel keniseleri olub harâb olmağın va^-ı kadim üzere tâ^mlr ü termim itmek istediklerinde ellerinde olan fetvâya nazar kılub emr-i Ş e f-i şerif ile âmil olasız. ’ deyü fermân olunmağm ber-müceb-i emr-i âli ellerinde olan fetvâ-yı şerifeye dahi nazar olunub ‘bir kasabada vâkf olub müstâmel olan kenisenin bdzı yeri ttfmire muhtâc olub vaz-ı aslisi üzere ta‘mlr olunmak câ’iz olur mı, beyân buyrula’ denildikde ‘olur’ deyü cavâb buynılmağm ber-mûceb-i fetvâ-yı şerif ve emr-i münifınce bl-ğarez müslümanlar ile üzerine varub görüldükde p k r olunan kenlsenin Şirin, veled-i Bâli, nâm zimminin evi cânibin[d\e olan divan ta‘mlr ve tarik-i hâssa mülâşık olan divan ve şak finin b iz i yerleri meremmete muhtâc oldugı sebebden vaİ-i aşllsi üzere meremmet olunmasına icâzet verilüb bi’t-taleb kayd olundı. Receb, Ankara, sicili. 1/92 (picturc42).
119 In order to prevent the church from being restored bigger than its original form, as a precaution, the measures of the church was recorded. According to this from base to roof its seven zirS (in terms of the tailor’s zirl) and flve rulf. The eastern side is sixteen zirS and the western side is twenty zirff!'^
According to the document the congregation of the church applied to the sultanate to have the permission to repair their church in conformity with its original
fonn {vaf-i aslfsi).^^ They stated that the congregation had used the church since the old days. They claimed that some people prevented them from doing so, and added that they had a fatwa permitting them to repair their church. In the sultanic decree the kadi is ordered that if what they stated was true, in other words, if the church really needed to be repaired and if the congregation had used the church since the days of yore, the kadis would examine the fatwa presented by them, and would give his decision accordingly. Thereafter the impartial Muslims {bT-garez), in other words those who were disinterested in the case, investigated the church and prepared a report indicating which segments of the church really needed to be repaired. Furthermore the original measures of the church was recorded to prevent any illegal enlarging.
In this suit fatwa functioned as a permission for the congregation to repair their church. However, in the procedure, firstly the condition of the litigation was examined;
‘‘^Budur ki zikr olunan kenisenin üzerine vanlub vaf-i aslisinden ziyâde tedavül olunmasun deyü ihtiyaten her köşesi ölçülüb tahtından şakfına vannea zirâ^-i hayyâtin He yedi zirS" beş rııb“^ bir kere olub, cânib-i şarkisi on altı z i r İ , cânib-i garbisi yigirmi zirff oîub b i’f-taleb kay d olandı.” Ankara, sicili. 1/94. (picture 42). “Original form,” most probably means the form during the Muslim conquest took place. The Ottomans seem to have tried to prevent the non-Muslim congregations from enlarging their sanctuaries Düzdağ: 104-107.
120 if the condition of the fatwa and the condition of the lawsuit do really fit ? There were two conditions in the fatwa: (i) if the church has been used since the days of yore
{kadimden beril), meaning since the day of the conquest; (ii) if the church really needs to be repaired. After the report prepared by the disinterested Muslims, the kadi was convinced by that the condition of the fatwa fit to that of the litigation and accordingly he gave his judgment in conformity with the fatwa.
Sometimes it was not that easy to have objective evidences. In the.se cases the litigation became more complex.
Formerly deceased non-Muslim {zimmf) Emin’s, the son of Çoban, real sons {şulhl oğullan) and Karaca and real daughter {sulbl ktzi) Giizel’s deputy {vekil) Ivan, the son of Arslan, and the other real daughter Mogal’s deputy the son of Artun, and deceased Emin’s wife the daughter of Agob, applied to the court, personally or by proxy, and made a claim {takiJr-i dd'vi) in the presence of deceased Emin’s brother who died after Emin, non- Muslim Ohan’s, the son of Çoban, real son’s Karaca, Ağob, Pare- şeyh and his real daughter Mishatun’s deputy Şehri, the son of Bahşi, and other daughters, ,s^jy=- and and Ohan’s wife 'y., daugher of Ohan. The plaintiff party declared in their claim; “Emin formerly erected a garden {bâğ) in the location known as Esadderesi, and is neighbored by the estate of Minas, the son of Bedros, by the river and by the main street. We had used the garden for a long time. When Emin died although we inherited the garden, the other party [relatives of Ohan, the brother of Emin] illegally started to benefit from the garden and prevented us from benefiting.” When the claim was asked to the other party they replied that ‘The aforementioned garden was erected by our uncle Re’is, the son of Çoban [brother of Emin and Ohan]. When he died, our father Ohan was the only heir. Therefore the garden was inherited by our father. When our father, Ohan, died, the garden was inherited by us. Consequently we have benefited the garden for almost 15 years and we are still holding it.” Soon afterward 'Ali b. Mustafa and Mehmed b. *^Ali, the witnesses of the heirs of
121 Emin [the plaintiff party], came to the court and testified that “the garden had been erected by Emin. When he died, it was inherited by Emin’s hiers.” Next, Ca'fer b. Bayezid and Yusuf b. ‘^Abdullah, the witnesses of the Ohan’s heirs [the defendant party], testified that “the mentioned garden had been erected by Re’is. When he died, it was inherited by Ohan. When Ohan passed away, this time, the garden was inherited by the heirs of Ohan. For 15 years, the descendants of Ohan have possessed the garden.” The witnesses of both parties were inquired {ta‘dil ii tezkiye). Thereupon the heirs of Ohan submitted a fatwa whose meaning (mazmûnı) is: “If non-Muslim Zeyd bought some places from *^Amr; and erected a garden in it; and the garden yielded; and Zeyd had possessed the garden more than 10 years; when he died, his brother inherited the garden; and later his heirs possessed the garden; then from outside Bekr came and claimed ‘this garden had been erected by my father thus it belongs to me’ and brought his evidence; and the heirs of Zeyd claims ‘the mentioned garden had been erected by our father, for 15 years we have possessed the garden’ and brought their evidences...” it is ruled by the mufti that the evidence of Zeyd’s heirs were more preferable (evla). Since the witnesses of both parties , were only about the estate [hâğ], according to the noble Shari'^a, the evidence of the aforementioned non-Muslims [Ohan’s heirs] is preferable, the possession of the aforementioned garden is granted to Ohan’s heirs and the heirs of Emin are prohibited from their claim. Eva’il-i Cemaziyelcvvel 998/1590.®®
®® “Budur ki bundan akdem mürd olan Emin, veled-i Çoban nâm amminin ve Karaca nâm şulbi oğullan ve şulbiye kızı Güzel nâm zimmi canibinden huşüş-ı âtl'z-zJkre vekll-i Şeğisi olan îvan, veled-i Arslan, nâm pm m i ve âh ar kızı Moğal nâm zJmmiye tarafından vekll-i Ş e f isi olan J fji veled-i Art un nâm pmmi ve mürd-i mezbûrun zevcesi bint-i Ağob, nâm zimmiyye meclis-i Ş ef-i şerife miird-i mezbûrun kanndaşı olub kendünden sonra mürd olan Ohan, veled-i Çoban, nâm zimminin şulbi oğlı olan ve ve Karaca ve Ağob ve Pâre-şeyb nâm pmmilerin ve mezbûtr Ohan 'nm şulbi kızı Mis-hâtûn cânibinden vekll-i Ş e f isi olan Şehri, veled- i Dahşl, ve âher kızlan ve nâm emmileri ve zevcesi , bint-i Ohan nâm pmm iyeyi ihzâr ve mabzannda aşâleten ve vekâleten takrir-i da‘vâ idüb ‘mevrüşumuz mürd-i mezkûr Emin Esaderesi nâm m evzide vâkf Minas, veled-i Bedros, mülki ile ve dere ile ve iki taraû tarik-i ‘amm ile mahdûd bir bâğ diküb icc zemân taşanuf idüb mürd oldukdan sonra bize
122 In this suit, the heirs of two brothers Em7n and Ohan sued each other for the
possession of a garden. Both parties brought witnesses into the proceeding, and the
witnesses of EmTn’s heirs’ testified Emin’s heirs, and the witnesses of Ohan’s heirs’ testified Ohan’s heirs. Thereupon the Kadi examined the reliability of witnesses of both
sides {ta‘^dJl ü tezkiye). The key point in this legal problematic is the reliability of the witnesses, since there was no consistency between the testimonies. In the first place,
intikâl itmiş iken mezbûrlar bi-ğayr-i hakk tasarrufidüb bize mânf olurlar. Bl-hasb üş-Şef su’âl olunmasın taleb iderüz’ deyücek ğıbbe’su ’âl mezbûrlar ‘zikr olunan bağı ‘^emmlmi'ız Reis, veled-i Çoban, nâm zimmlniñ müstakilen dikmiş olub mürd oldukda babamız mezkûr Ohan, vâriş-i vâbid olub, babamıza intikâl idüb, babamız dahi mürd olub bize intikâl itmişdir. On beş y ıl mikdân oldı, vech-i meşrûh üzere tasarruf olunagelmişdir. hâlâ dahi zabt ü tasarrufumuzda' deyü cevâb verüb mezbûr Emíniñ veresesiniñ davalarına mutabık '"Ali b. Muştala ve Mehmed b. ''Ali nâm kimesneler li-ecl iş-şehâde hazirân olub edâ-yı şehâdet idüb ‘zikr olunan bâğ Emin 'İÜ dikmesidir, mürd oldükda veresesine intikâl itdi’ deyub Cif fer b. Bâyezid ve Yûsuf b. '^Abdııllâh nâm kimesneler dahi bâzirân olub ‘zikr olunan bâğ-ı mezkûr Re İs'in dikmesidir, mürd oldukdan soñra karındaşı Ohan 'a intikâl itdi, on beş yıl mikdân vardır, bu üslûb üzere tasarruf olunagelmiş ' deyü edâ-yı şehâdet idüb tarafeyniñ şâhidleri ta''dil ü tezkiye olundukdan soñra mezbûr Ohan’ıB veresesi fetvâ-yı şerife ibrâz idüb, mazmûn-ı münifınde “zeyd-i zımmi '^Amr'dan bir mikdâr yer alub, bâğ diküb, mezkûr bâğ hâsıl verüb, zeyd-i mezkûr mezbûr bâğı on yıldan ziyâde zabt ü tasarruf idüb fevt oldukda, karmdaşına intikâl idüb bir kaç yıl dahi vereşe-i Zeyd tasarruf idüb ba‘^ deh u âbardan Bckr ‘benim babam ikmiş, mezkûr bâğ benimdir' deyü beyyine ikâme eylese ve Zeyd-e mezbûrun veresesi dahi ‘mezkûr bâğ bizimdir, babamızın müstakilen kendü dikmesidir, on beş yıl oldı’ dimekle ‘bizim bu kadar zemân zabt ü taşarrufumuzdadır’ deyü beyyine ikâme eyleseler, ‘vereşe-i Zeyd’iñ beyyinesi evlâdır’ buyrulmağm ve tarafeynin müşâhedeleri mülke mukayyed olmak üzere şehâdet itm ^in, mûceb- i Ş ef-i şerif zımmi... beyyinesi evlâ olmağın zikr olunan bâğ '^alâ-mekâne mezkûr Ohan’m veresesi yedinde ibkâ olunub, mezkûr Emin ’nin veresesi mutâlebedeb men*^ olundığı bi ’t-taleb kaydolundı, Evâ’il-i Cemâziyyelevvel998. Ankara, sicili. 2/1110 (picture: 41).
123 kadi did not mention which parties’ witnesses seemed to be more reliable after the interrocation {tezkiye). However it is stated that at that moment the heirs’ of Ohan presented a fatwa. In the ruling of the fatwa it was stated that the evidence of Ohan- party (Zeyd) was preferable {evla). One can think that, in accordance with the fatwa, kadi must have preferred the evidence of Ohan-party and adjudicate in favor of the
Ohan’s heirs. However, if the text of the fatwa is read carefully, it will be understood that the case is much more complex. In the text the direct question of the fatwa is not written. Thus we do not know the real query of the fatwa. However, it is stated that, mufti rules for the reliability of the evidence of Zeyd’s heirs referring Ohan-party. Thus we can think that, in the fatwa, most probably, the question was about the reliability of the evidences. However, the condition of the fatwa is based upon the claim of the Ohan- party. In other words it automatically refuses the claims of Emin’s heirs in itself by repeating the claims of the Ohan-party in its condition. Thus automatically the Ohan- party’s evidences are declared more reliable by the fatwa. In this situation there can be two possibilities. First possibility is that the kadi, before handling the fatwa, was convinced by the evidence of Ohan-party; and records the fatwa presented by this party was to intensify his judgment. Second possibility, which is weaker, is that, in the fatwa it was explicitly alluding that the evidences of Ohan-party (Zeyd) was preferable. In this respect the mufti seems to have behaved as a witness rather than a legal consultant. It is a possibility that the mufti might have examined the litigation and evidences, and concluded that Ohan-party’s evidences were more reliable. If it was so, here the muflT seems to leave his principle duty which was writing decontextual and abstract legal opinions, but behaved as a witness.
124 In the court registers one can hardly encounter a case in which the party who produced the fatwa lost the case/*’ Barely however the kadis might decide against the one presenting the fatwa. There can be two reasons behind the kadi’s disregarding the fatwa. First of all the kadi might not be convinced that the fatwa did really fit to the
legal problematic in the litigation. Secondly the kadi might refuse the reasoning and ruling of the fatwa although the conditions of the fatwa and that of litigant at hand were in concordance. I think behind the kadis’ disregarding the fatwis, the first possibility should be considered more seriously. In this respect it would be helpful to remember a fatwa by Ebussu'^ud Efendi:
The problem. WTiat will be done to the one [kadi] who disregards the fatwa and does not adjudicate accordingly ? The reply: He will be an infidel. Ebussu'^ûd.’’
In my analysis on Ankara court registers I have encountered only a single lawsuit in which the party presenting a fatwa lost the litigation.
Hüseyin el-Hâc Kasım applied to the court in the presence of Sefer, the son of
Hidtr and Sayeci, the son of and directed a claim “Previously I sold
them some cloth of 14.000 akças. During the sale one filori (gold) corresponded 200 akças. However Soon afterward the rate of exchange was changed. I demanded my payment to be paid in terms of the exchange rate during the sale.” When this non-Muslims were asked about the claim of Hüseyin they replied: ‘The value of the akça was broken {kasii). We can only pay in terms of the halved value {taosif iizer^.” Hüseyin refused their offer and claimed that
Gerber. (1988): 208; Jennings. (1978a): 134-7; idem. (1978b): 157-61. idem. (1993): 85-7. “Mes’eJe: Fetvâ-yı şerif ile ‘^amel itmeyüb tabüf idene ne lâzım olur? El-cevâb: Kâfir olur. Ebussıf ûd-Ahmed”Se\\e: 17.
125 “formerly the case was brought before the court. Although it was decided that they would pay in terms of the exchange rate diuing the sale, they are still refusing to pay accordingly.” Sefer and Siyeci replied that ‘Sve have a fatwa from the chief mufti prescribing that the payment should be in terms of the new exchange rate. Furthermore, it was not decided that we would pay in terms of the rate of one filori corresponding 200 akças.” Thereupon the plaintilT produced evidence and tbrâhîm Çelebi b. Mustâfa and el-Hâc Meluned b. el-Hac Ishik testified that “actually previously aforementioned jfliiseyin proved that the exchange rate was one filori corresponding 200 akças during the sale and the delegate of the kadi {na’ib) gave his ailing that they would pay their debt in terms of the rate during the sale.” Consequently the former verdict were regarded as valid and it is decided that the payment will be made in terms of the exchange rate, one filori corresponding 200 akças. 15 Ramazan 1009/1601. 72
Before analyzing the litigation we have to recall that in 1600 there was a country-wide arrangement in the exchange rate (s/kke tashThi) between the gold and the
‘‘''Budur ki Hüseyin el-Hâc Kasım mahûl-i kazâ’da Sefer veled-i Hıdır ve Sâyeci veled-i nâm kimesneler mahzarmda takrir-i d i v i idüb bundan akdem mczbûrâna on dörd bin akça biz virdim. Filori ikiyüz akçaya câri iken bd dehu zuyûf akça kâsir olmağla hin-i ''akdde câri olan s fr üzere taleb itdüğimde mezbûrân zimmller ‘akça kâsir oldı, tanşlf üzere edâ iderüz' deyü nizd idüb ‘mukaddeman mürafa‘a-ı Ş e f olduğumuzda hin-i ‘akd tilori ikiyüz akçaya câri id ilin i isbât idüb filori ikiyüz üzere edâ olmağa iizâm olunmuş iken hâlâ ta^allül iderler’ deyücek mezbürândan su'âl olundukda ‘ahar-ı eyyâm revâyıca ftibâr idüb mülll ül-enâm hazretlerinden fetvâ-yı şerife vardır ve hem bize ikiyüz filori virm^e bükm olunmadı’ dediklerinde müdde“^l-i mezbûrdan d i vâsma muvâfık beyyine olundukda tbrâhîm Çelebi b. Muştala ve el-Hâc Mebmed b. el-Hâc tshâk nâm kimesneler ‘f l ’l-haklka mukaddeman mezbür Hüseyin mezbûrân Emmilerde vech-i meşrûh üzere bin-i akdde ûlori ikiyüz akçaya câri idilin isbât eyledikde filori ikiyüz akçaya edâ olunmak içün nâ’ib üş-Şef hükm eyledi’ deyü şehâdet itdüklerinde mukaddeman vâkf olan bükm-i mezbür mukarrer tutulub filori ikiyüz akçaya iizâm olunubkaydşod. 15 Ramazan 1009. Ankara, sicili. 8/313. (Picture 40).
126 akça. The value of akça was increased twofold in terms of the gold. For example before the arrangement, when one gold corresponded 200 (sometimes 240) akças, after the
arrangement one gold came to correspond 100 (somewhere 120) akças. Professor Özer
Ergenç records that there are number of lawsuit occurred owing to the confusions after the arrangement of the exchange rates in the beginnings of I?*** century.’^ In our litigation Hüseyin demanded his payment to be paid in terms of the exchange rate during the sale. However Sefer and Siyeci refused his demand because they wanted to pay half of the payment, which is 1.400/2=800 akças, in accordance with the new rate of exchange (one flori corresponding 100 akças), otherwise they would suffer a serious loss. Hüseyin replied that previously it was decided by the court that the payment was made in terms of the rate during the sale. Thereupon Sefer and Sayeci presented a fatwa from the Şeyh ül-İslam, prescribing that the payment should be made in terms of the current exchange rate. On that occasion the plaintiff jHüseyin brought two witnesses testifying that in the previous verdict recorded by the delegate of the kadi {nä’ib) it was conditioned that the payment should be made in the exchange rate of one flori corresponding 200 akças. On that occasion, the kadi gave his judgment in favor of
Hüseyin, in spite of the fatwi from the Şeyh ül-İslâm. In the verdict the fatwa was not recorded thus we do not know the condition of the fatwa. What can be the reasoning behind the kadi’s disregarding the fatwi? The kadi, most probably, thought that the fatwa did not really fit to the trial. We have to recall that the condition of the fatwi is
✓ constructed upon the litigant’s expression of the litigation. Perhaps Sefer and Hidir, while telling the litigation to the fatwi-maker in the fatwihine, did not express the
73 Ergenç. (1995): 122-4.
127 litigation accurately and exclusively thus the kadi was not convinced by the
concordance between the conditions of the fatwi and that of the litigation.
Sometimes although the lawsuit was terminated in favor of the litigant presenting the fatwi, at the end of the verdict, there might be no mentioning indicating that the judgment was given in accordanee with the fatwi. In this case most probably the kadi did not need to mention the fatwi because he might have given his opinion independently without the consultation of the fatwi. In other words, although the ruling of the mufti and the ruling of the judge were in concordance, judge did not base his reasoning of adjudication on the fatwi:
Karaman! el-Hic Hasan b. Mukaddem applied to the court and makes a claim {taknr-i diva) in the presence of Mustafa b. İbrahim: “Formerly I bought a Russian, young slave of medium height, greenish yellow eyes and light eyebrows, whose name is Pervane from Muştala for 6.200 akça. She escaped (/M^) from me. I learned that it is her habit to escape from her masters. She ran away many times from her former masters. I hold a fatwi about the faulty of the slave {^ayh). 1 demand the cancellation of the sale.” The witnesses who are present testified that the slave escaped from his former masters once or twice. Alter the examination of the evidences dc’t-t^dit) his demand was accepted. Ramazan 997/1589.^“*
‘‘"Budur ki. Karamanı el-bâc JJasan b. Mustafa b. Mukaddem nâm kimesne meclis-i Şef de Mustafâ b. İbrahim nâm kimesne mahzarında takrir-i ddvâ idüb ‘‘bundan akdem işbu orta boylu, şan eiâgözlü, açuk kaşlu rus ûl-aşi Pervâne nâm köseç ‘^abdı mczbûr Mustafâ’dan altı bin iki yüz akçaya almış idim. Benden ibâk eyledi. adet-i kadimesi imiş. Evvelki ağalannda iken dahi nice defa ibâk itmiş. ‘Ayb oldı^una elimde fetvâm vardır. Redd olunmasın muurâd iderüm. ’’deyücek ğıbbe’I-istişbâd hazırân olub, ‘'mezbûr evvelki efendilerinde iken dahi bir iki defa ibâk itmiş idi” deyü şehâdet etdiklerinde bayyiz-i kabûlde olub bi’t-taleb kayd olundı. Evâ’il-i ramazan 997. Ankara, sicili 2/21 (picture 38).
128 In this lawsuit, the plaintiff KaramanT el^ac Hasan exposed the problem. He claimed in the suit that the slave had the awful habit of escaping from her masters and thus the slave was faulty The plaintiffs demand was the cancellation of the sale because of her faulty habit. He added that he had a fatwa in this respect. Unfortunately the fatwa was not recorded. But most probably it must have been prescribed that the sale under these conditions was not valid. After the plaintiffs exposition of his claims, the witnesses were called for to highlight if the plaintiffs claim was true or not, i.e. if really the slave had this awful habit. The witnesses testified the statement of the plaintiff and accordingly the sale was cancelled. By not recording the fatwi in the verdict kadi might have alluded that he himself gave his judgment without resting his opinion on the fatwa.
Sometimes the fatwa did not prescribe any ruling about the final judgement for the lawsuit but gave some procedural directions. For example from a sultanic decree dated Muharrem 997/1588, we learn that Zulkidir, the seyh of a convent known as
Vakkâş Şeyh applied to the court with the claim that Mehmed has interfered the field of the convent by assessing that the field belongs to his tim ir. However ZGlkidir possessed a deed {hüccet) and a cadastre {sinimame) proving that the aforementioned field belonged to the trust {vaki) of the convent. Thereupon Mehmed claimed that since he had benefited the field for a long time and former trustees {mütevelli) had not sued,
Zulkidir had no right to sue owing to principle of the statute of limitations {mürür-ı zem in). Afterward ZGlkidir presented a fatwi prescribing that he had right to bring the
129 case at lawHere the fatwa was not to prescribe the result of the suit, if the field
belonged to the convent or Mehmed, but it gave a procedural direction and prescribed
only that Zülkâdir was able to bring the case before the court. A similar litigation is recorded in a verdict.
Mehmed b. Bdidir came to the court and directed his claims in the presence of Akob (‘r’j*'), the son of “In Bursa I gave four waist cloth, one cap, one
nezkeb (?), two fragments of muslin, one clothe for glass jar, one sheet, one Kütahya caftan and two kneecloth in Akob’s trust with a bag to deliver Mahmild Çavuş. However the aforementioned Jew did not deliver my trust.” When Akob was asked about the claim, he replied that “When I stayed for a night in PJozöyük in a station, his trust was stolen with my dress.” When Mehrned was asked about the reply of Akop, he stated that “I have not received any information about my trust was lost as he claims.” On that occasion Akob presented a fatwa frt)m şeyh ül-İslâm; “If the Muslim Zeyd gives some of his dresses in trust of the Jew ^'Amr telling him to deliver them to his house in the city and if “^Amr states that the trust was stolen with his own dresses, is his statement regarded as truthtul ? The reply: If he takes a oath that he did not steal, is statement is regarded as truth-telling. Therefore he should be asked by the court to take the oath: Thereupon the aforementioned Jew
‘’'...Ankara kazâ'sma tâhf Balçıkbişân nâm karyede vâkf olan Vakkâş Şeyh zaviyesine bH- f f i î evlâdiyet üzere şeyh olan Zülkâdir nâm kimesne bâb-ı sa^âdet me'âbuna '^arz-ı hâl idüb “zâviye-i mezbûrenin vakfîyyelerinih ¿şânnda Mehmed nâm kimesne ‘bizim tlmânmız toprağmdandır' deyü dahi idüb zâviyye-i mezküre vakûndan olduğuna mazmüm ‘alâ-vech il- ‘azlm sâbit ü zâhir olmuş hüccet-i şefiyye ve şınunâme ibrâz eylediğimde ‘senden mukaddem mütevelli olan kimesneler dâ'vâ ve zemân mürur eylemişdir’ deyü nizff eylediklerini” bildirüb ol vech ile zemân mürûr itmekle da'^vâya kâdir olduğuna elinde fetvâ-yı şerife olmğm buyurdum k i.r Ankara, sicili. 2n'h9 (picture 46).
130 was asked to take the above-given oath. He took the oath and Mehmed’s demand was canceled. 76
In this lawsuit Mehmed b. Hi^ir claimed that Akob did not deliver Mehmed’s trust to Mahmud Çavuş. Akob replied that the trust was stolen with his own property.
Thereupon Melimed declared that he did not have any sound information how the trust was lost, in other words he did not accept Akob’s defense. Akob did not produce any evidence, but presented a fatwa prescribing a procedural direction for this particular problematic. Kadi accepted the suggestion of the fatwa and behaved accordingly; he asked Akob to take the oath recorded in the fatwi. When Akob took the oath, the claim of Mehmed was dismissed. Here kadi, in his adjudication, followed the fatwa’s procedural direction. Fatwa did not give a direct ruling, but a conditional answer. When
"'BudurkiMe^edb. Hıdırmabfd-ikaza’da Akoh veled-i malarında takrir-i da'^va ’İdüh bundan akdem mezbûrema^iyye-iBursa’da emânet dört futa, bir‘arakiyye ve bir nezkeb ve iki diHbend örtüsü ve bir iânus gömJ^i ve bir çarşaf ve bir Kütahya kaftan ve iki diz makremesi bir boğca ile virüb ‘Mahmüd Çavuşa Işâl eyle ’ dedikde YahüdI-i mezbürgelüb teslim itmemiş. ” Mezbürdan su ’âl olundukda “Bozöyük’den biri birkonakda konub gice ile başım altmda keadü esbâbım ile bile sirkat olundı”deyü cevâb verücek, mezbûr M e^ed “ol vech ile zâyf itdi^ine ‘ilmim yokdur”deyücek Yabıldl-i mezbürŞeyh ül-İslâm hazretlerinden fetvâ-yı şerife ibrâz idüb nazar olundıkda “zeyd-i mûslim ‘Amr-t Yahûdiye bir mikdâr esbâb emânet virüb ‘dâr-r şehirde evime teslim ile’ dişe ‘Amr ‘yolda esbâb-ı merkûmı kendü esbâbım ile uğurlatdtm ’ dişe sözüne ş e f an ‘amel olunur rm ? el-cevâb: ta‘addl ü ta‘şir itmediğine yemin idense olunur deyü yemin teklif olunur” buyrulmağm Yahûdl-i mezbûre vech-i meşrûb üzere yemin teklif olundukda vech-i meşruh üzere yemin-i bil-llâhdan sonra mezbür Mebmed mıfârazadan men‘ olunub kaydşod. 26 Ramazan 1008/1600. Ankara, Sicili. HIM
(Picture 34).
131 the defendant carried out the condition suggested in the fatwa, which is taking the oath,
he was acquitted.
3.3. Kadis, Muñís and the Sultan: the enforceability o f the fatwa
In Islamic legal culture, since, in principle, there was no legislative power
beyond the claims of God, the kadis had a serious problem about which interpretation, he should follow. In the classical theory of ijtihäd, it was required that the judge should be independent in performing his personal interpretation.^^ However, as we have seen before, gradually the office of kadi came to separate from the academic line and came into sight as a bureaucratic and administrative office. From this time on, between the legal experts, so called muftis, and kadis, there started a distinctive relationship. The judges came to ask for the muftis advise for juridically difficult or politically sensitive cgses that they confronted.^’ As Professor Powers suggests “judges were especially careful to consult with mufis before imposing the death penalty.”**’ The muftis, with their deep knowledge in Islamic law, analyzed the legal problems asked by the kadi and sometimes by a litigant, and suggested legitimate solutions. Whereas the kadis investigated the real case at hand under the light of the evidences and gave his decision in accordance with the fawa’s suggestion. In this relationship the function of the mufti was to interpret the legal problematic behind the real case in an abstraction, whereas the function of the kadi was to interrogate the real case and give his decision. With the
■' Kamali. (1993); 49. Coulson. (1956). ’’ Powers. (1993): 93.
132 inclusion of iftä’ into the legal procedure, the adjudication process became neutralized
and departed from any personal element between the kadi and the litigants.*' To carry
out this particular function, in Medieval Spain and North Africa, permanent muñís were
designated to the courthouse to supply official legal consultation.*^ In the Ottoman
juridical organization to achieve this function, as we have seen in the first and second
chapters, a special department was established, subordinate to the chief muñí, for
private applications of the litigants. Furthermore a number of provincial muftis were
appointed for the same purpose, to issue legal opinions for the litigants and to supply the
kadis with legal consultation.
However a serious problem about the relationship between the kadis and the
muftis was the enforceability of the fatwi upon the judiciary. In principle the kadis were
free in regarding -or not- the fatwas for their adjudication. Nevertheless in most of the
legal doctrines the kadis were encouraged to consult with the legal experts before
making their decisions, unless the fatwa really did not correspond to the lawsuit at hand.
One important aspect of the enforceability of the fatwa upon the court was closely
related to the role of the government in the judiciary.
In Islamic legal culture the kadi was appointed by the political authority.
Although the kadi was appointed by the government, however, as Professor Rosen
“ Ibid: 94. SI Gerber. (1994): 40. ^ Powers. (1993).
133 mentions, in classical Islamic theory “law and government were kept largely separate
from one another.”^^
The state was seen not as an instrument for the application of law, nor were the courts, either through religious doctrine or a concept of the social good, envisioned as vehicles for economic redistribution or the construction of a particular political order. It was the duty of the political authorities to enforce the claims of God - even by maintaining their own courts for the punishment of specific crimes - but beyond that they to insure that men could carry forth their own affairs without governmental interference.*“'
Judicial independence in classical Islamic theory, however, with the con.solidation of the Islamic governments were intensely restricted. The political
o r authority came to treat the kadi as his delegate and subordinate. ' The kadis came to be imposed by the government to follow the directions of some legal schools recognized by the state and forbidden to follow some others. The Islamic governments, in controlling the judiciary, had some legal claims, called siyasa Shaflya^ If the Islamic government was the trustee and executor of the ‘claims of God’ {huquq aUah), the theorists of Siyasa
thought, the political authority, caliph, and his political organization should be granted extra-Shar'ï authorities to carry out its duty and to maintain peace and security in the Islamic lands. About the perimeters of the state authority, however, the discussions among the Islamic jurists still continue. Nevertheless, it would be legitimate to say that, according to this theory, some jurists claimed, the government was given a
Rosen. (1989): 61. *“ Ibid: 61. *’Coulson. (1965): 216. For an analysis on the Mamluk context, see: Jackson. (1996): 33-67.
134 right by God to impose some legal opinions to the executors of Islamic law, and to exclude some others. 88
In the Ottoman practice the status of sultanic law {kânun) was determined under the light of this legal theorization. The Sultanic ordinance in general, kânun in particular, in the Ottoman centuries, occupied the minds of the Ottoman intellectuals, as an inevitable practice, but which needed to be justified in the framework of the Shari'^a and custom. In the second half of the 15*^ century. Tursun Beg, famous historian of the
Ottoman court, wrote that “Siyâset-i SııIfânT ve yasag-i Pâdişâhı dirler ki, ‘urefâmızca oha ‘örfdirlcr'^^^ According to Tursun Beg, God, in every age, entrusts a great king with providing the order in the world {Nizâm-i ‘âlem). The society is structured on solidarity of different groups occupying different statuses and performing different fuhetions. Chaos will occur if this structure based on division of labor/function is challenged by the members of the society. Maintaining this order, thus sustaining justice i^adala), is the task of the siyâset {siyâsalpoVAy). Siyâset is executed by the political authority, the sultan. If the siyâset is based on wisdom {hikmet!hikma), it will be called siyâset-i İlâhi, which is Shari'^a; if the siyâset is based on reason ( ‘aki), it will be siyâset-i
"’ Johansen. (1981); 297-303. ** For a detailed discussion, see Jackson. (1996); 185-223. “The Sultanic polity and prohibition is called, according to our tradition, ‘urf ” quoted in İnalcık (1958): 341.
135 suItaaT, which is verily Kmahzade, the Ih“" century Ottoman legist and intellectual, justified the royal power to be recognized by the Shari‘a in these verses:
There can be no royal authority without the military There can be no military without wealth The subjects produce the wealth Justice preserves the subject’s loyalty to the sovereign Justice requires harmony in the world The world is a garden, its walls are the state The Holy Law orders the state There is no support for the Holy Law except through royal authority®’
Royal authority, following Kinahzade’s reasoning, can be the guard of Holy Law provided that it was empowered with some prerogatives by the Sharf a itself Kanun, the royal law, was what the Holy Law granted to Sultan to achieve this object.
In this respect Dede Cbngi Efendi’s (d. 957/1567) Arabic treatise, Siyasatnama deserves to be mentioned.'^^ The author refers to a variety of Koranic and prophetic sources justifying the legitimacy of Sultanic ordinance within the limits of the Sharf a.^^
According to him, Muslim ruler, to prevent criminal affairs and maintain security, provided that he recognized the Shari'a as the supreme and only valid law, could enjoy a wide range of discretion. Dede Congi Efendi, in this respect, frequently makes reference
For an elaboration of Tursun Beg’s theory and the critical text of his work, Tarih-i Ebu’l-feth, see: İnalcık and Murphey (ed). (1978), Tursun Beg, The History o f Mehmed the Conqeuror, Chicago. ®' Quoted in Fleischer (1986): 262. Dede Cöngi. Siyisetnime is originally in Arabic. It was translated with commentaries in various occasions. 1 used the text in Ottoman-Turkish reproduced by Akgündüz (1992), vol. 2: 127-212.
136 to the Koranic axiom that all Muslims are to obey the orders of those in authority { a tf ü
Allah wa-atf ü’r-rasül wa-ülfl-amr minkum. 4/62). The sultanic power is to intensify and consummate the Shari^^a. Nevertheless, the author identifies two kinds of siyaset, siyaset-i zalime and siyasct-i ‘adile?* The former is outside of the Holy Law, and violates it. The latter, however, is within the limits of the Holy Law and is to serve to intensify it. '
Returning to the Ottoman court, the kadi, besides his juridical identity, was also a state-man. He was not only designated to solve the legal problems but also as an administrative organ to carry out a number of managerial and administrative duties, such as controlling the market relations and taxes, examining the religious foundations, supervising the congregations, and coordinating the municipal administration...’^ As a judge, on the other hand, his judicial independence seems to have been limited in different ways.’^ The most important limitation of the kadi’s juridical independence was directed by the sultan. In the legal theory of the Ottoman state, the kadis were
Akgündüz (1992), vol. 2: 132-146. “B/r/ zâlimlerdir ki, şer‘iat am baram eylemiştir. Ve biri dabi ‘âdildir ki, ^tâlimden hakkı ihrâc ve zuhura getirüb ve mezâlim-i keşireyi d e f ve ehl-i fesâdm mübdelâ oldukları fesâd ve şekâvetlerinden tevbe ve ferâgat etdürmek He vech-i şer‘ üzere olan a‘mâli ve ePâlin vusüluna sebeb olur." Akgündüz (1992), vol. 2: 131. Akgündüz (1992), vol. 2: 134. Ortaylı. (1995); Ergenç. (1995): 80-87. ’’ For a specific analysis on the “limitations of tiie judicial powers of the kadi” see: Jennings. (1978b).
137 responsible to obey and enforce the sultanic ordinances (kinun).^** Professor İnalcık
states that:
The sultan’s ofTicial diplomas appointed the kadis to administer and execute both Shari'a and kinfin. They had at their disposal collections of sultanic kânun, which did not have to be officially certified copies. The kadis merely recorded in their official registers the legislative orders which they had received and with which they were required to act conformably.®^
If we return to discuss the status and function of the fatwa in the Ottoman court, we can say that a fatwi gained its enforceability in the Ottoman court by the sultanic decrees. As I have mentioned before, in the theory of siyasa Shafra, the sultan had the authority to impose a particular legal opinion to the kadi with his sultanic ordinance.
Accordingly, in the Ottoman documents, one can frequently come across sultanic decrees sent to the kadis, which ordered them to make their decision in accordance with particular fat was.
Most of the time, the process started with the application of the litigant with a complaint {rika) to the sultanate. In his exposition, the litigant seems to have explained the problem to be solved, and added that he had a fatwa supporting his argument. The sultan, in the ordinance, after the exposition of the case from the words of the litigant, ordered to the kadi to examine the fatwi and, if any, other documents, most of the time a hüccet. Then the kadi was ordered to behave accordingly, if the lawsuit is in accordance with the fatwi. Let us examine a sultanic decree which was mentioned above, in the case about the Christian congregation of jHarab-nişin church.
’Mnlacik. (1969): 116.
138 [To the kadi of Ankara], the fennän holder {darende-i Ihrman) non-Muslim congregation of the church Harab-nijan in the parish of Mihriyär, sent an envoy to my prosperous port and reported as ‘our church has been used from the days of yore {kadimden herd) until the present. However some segments of our chinch tends to decay and needs to be repaired. When we intended to repair in conformity with its original form (v a/-/ aslisi), some outsiders prevented us from repairing in order just to seize our church. We have a noble fatwa in this respect.’ Now I order that when you [the kadi] receive this noble edict, examine the situation. If the church really has been used from the days of yore until the present and if it really needs to be repaired, when they apply for repairing the church in conformity with its original form, have a look at the fatwa presented and behave in accordance with the prescriptions of the noble Shari'a. Prevent anybody from behaving against the orders of Shari^a... 991/1583.'°*^
The process can be understood from this particular sultanic decree very clearly.
In the first step, the Christians applied to the sultanate by sending an envoy and
requested the sultan for preventing the interventions into their work while they were
’’ İdem. (1972): 75. “ Ankara kâdisina hükm ki...kazâ’-yı mezhürda vâkf Mihriyârnâm mahalledeHarâb-nişân nâm kenlsenin dârende-i fermâb-ı hümâyûn zımmlleıi bâb-ı sd^âdet m e’âbıma âdem gönderüb ‘^arz-i hâl idûb ‘kenfsemiz kadim ül-eyyâmdan ilâ-hazi'l-ân m üsttf mel olub bdzı yerleri harâb olub ta''mire muhtâc olmağın vad-i aslisi üzere ta''mir ü termim itmek istediğimizde mücerred ccib-i mâl içim hâriçden bdzı kimesneler hUâf-ı Şed-işerif mânf olub bu bâbda elimizde fetvâ- yj şerife vardır’ deyü bildirdikde imdi buyurdum ki hükm-i şerifim vardıkda göresiz, f i ’l-vâkf kadimden Ue’l-ân m üst a"mel keniseleri olub harâb olmağın vad-ı kadim üzere t a"mir ü termim itmek istediklerinde ellerinde olan fetvâya nazar kılub emr-i Şef-i şerif ile "âmil olub Şefle lâzım geleni icrâ’ idesiz, kimseyi Şef-i şerife ve emr-i hümâyûnuma mııhâlifiş itdir,eyesiz, men" ü d e f idesiz. Amma bu bahâne ile vad-i aşllsisinden ziyâde nesne ihdâş olundukda ğâyet hazer idesiz, bu bâbda şöyle hilesiz, ba"de’l-nazar bu hükm-i şerifi ellerinde ihkâ idüb "alâmet-i şerifeye ftimadkılasız. Ankara, i/c/// 1/109 (picture 33).
139 repairing their church in conformity with its original fonn. In the second stage they stated that they had a fatwa supporting their argument, which must have been about their right to repair the church under the conditions they expressed. In the third stage the sultan, instead of interrogating the case, whether what their exposition was accurate or not, ordered the kadi to examine the case himself. In the decree, the sultan repeats the condition that was expressed to the sultan by the applicants; “If the church really has been used from the days of yore until the present and if it really needs to be repaired...”
If the condition expressed to the sultan -which must have been also the condition expressed in the fatwa- was accurate, kadi was ordered to decide in accordance with the fatwa. Here, the sultanic enforcement of the fatwa was limited with the condition that the fatwa’s accordant with the case at hand. Let us examine another decree:
[To the kadis of Ankara and Koçhisar] the ferman holder (darende-i fermâıî) ' Burak applied to my prosperous port and reported as “formerly there was
a strife {nizi) between my son Himmet and Akkoca from the village of Borcali. After the strife Akkoca lived nine months and after nine months he died owing to the plague. Although he died owing to plague, in his paper {varakâ) it was written that he died owing to ray son’s blow unjustly, in order to seize some money {celh-i mâl içim) from us. We request the problem to be solved.” Now I order that when you [the kadis] receive this noble edict, intervene the case and meet the litigants together and solve the problem in accordance with the Shari'a. If the case was not solved yet and if 15 years has not passed, interrogate the case and examine the noble fatwa [they submitted]. If the fatwi is in concordance with the case, then give your decision accordingly. And prevent the heirs of Akkoca and state officials {ehl-örf) from unlawfully distiu-bing them. Prohibit anybody behaving against the Shari'^a and if they
140 seized something unlawfully, after proving, have it back. Abdl Çavuş is designated overseer for the matter...'”’
In this decree we learn that Burak applied to the sultanate and complaind that his
son Himmet and Akkoca had a fight before. After nine month Akkoca died owing to the
plague. However the heirs of Akkoca, probably, to receive recompense unlawfully
accused Himmet of being murderer of Akkoca. The sultan ordered to the kadis to solve
the problem, if it was not solved yet, and if 15 years did not pass (statute of limitations).
Kadi was also ordered to examine the fatwa, which must have been submitted by Burak,
and if the fatwa was in concordance with the case, the kadi was ordered to behave
accordingly {...ol bâbda em r-iŞef-ikavf ve fetvâ-yı şerife ile ^amil olub..). Similarly to
the first case, here, the sultan imposed the fatwa unless there was not a concordance
between the fatwa and the case at hand. In any case, it would be the kadi if the fatwa
..[Ankara ve Koçbisar kadılarına hükin] darende-i fermaa-ı şerif В итак aam kimesne bab-i sa^^âdetime ‘arz-ı hâl idüh Ankara kâzâsma tâbf Borcah nâm karyeden Akkoca nâm kimesne oğlu Himmet He bundan akdem nizS idüb, ba^^dehu mezbiir Akkoca nice müddet şıhhatde olub tokuz aydan soñra fevt olub hâlen varakasına baña ‘senin oğlunım darbından fevt oldı ’ tâ^ândan vefat itmiş iken mücerred celb-i mâl içün Şef-i şerife muhâlifrencide iderler. Şefle m etf ü d ef olunmak taleb iderüm ’ deyü bildirdi. İmdi buyurdum ki, hükm-i şerlûm vardıkda ol vech ile dahi olundukda huşemâ’ beraber idüb def-i Şefle ğ örülüb faşi olunmayub on beş y ıl terk olunmuş d ^ il ise ber-mâceb-i Ş e f - şerif tctilş ü tefahhus idüb bu bâbda olan fetvâ-yı şerifeye nazar idüb göresin, kaziyye ‘^arz olunan gibi ise ol bâbda emr- i Şef-i kavf fetvâ-yı şerife He ‘âmil olub Şef-i şerife ve fetvâ-yı şerifeye muhâlif minba^' âd hum ve oğlmı merkum Koca ’nın veresesine ve ehl-i ‘^örfe ve sa 'ire rencide ittirmeyüb Şefle meıf ü def idesiz. Hilâf-ı Şef-i şerif kimesneyeiş itdirmeyesiz ve hilâf-ı Ş e f nesnenin dahi almış ise bdad us-şubût alıveresiz. Ve bu bâbda dergâh-ı ‘âh çavuşlarından kudvet ül-emâ^il ve’l-akrân ‘Abdi Çavuş zlde kadruhu mübâşir ola...Ankara, sicili. 1/1080 (Picture 32).
141 really fitted to the case or not. However, if it fitted, then the kadi was supposed to make his decision accordingly.
As we have seen in these two examples the enforceability of the fatwa was realized by (i) sultanic imposition, (ii) kadi’s agreement on the harmony between the fatwa and the case. Since the kadi was the one who was supposed to carry out the trial, he would decide this concordance between the fatwa and the case.
3.4 Conclusion
In this chapter I have tried to examine the status and the function of the fatwa in the court procedure. As it has been discussed, the main stage for the fatwa in the procedure was the concordance between the fatwa and the lawsuit. The concordance was understood if the condition of the fatwa and that of the lawsuit were fitting.
Nevertheless, in order to understand this very concordance, the kadi firstly was supposed to carry out a trial with the help of procedural tools, such as evidence and oath. Thereafter, during the adjudication, the kadi would regard the fatwa and make his decision accordingly. The enforceability of the fatwa, on the other hand, was accomplished through the imposition of the sultan. Nevertheless the sultan ordered the kadi to behave according to the fatwa only if it was in concordance with the case. In both case, it was the kadi who decided this very concordance.
142 Conclusion ^
he purpose of this study has been to analyze some aspects of the Ottoman legal Tconsultation in the lb"* and 17'"7th centuries. I have revolved around three different aspects (i) the making of the mufti, (ii) the making of the fatwa, (iii) the function of the
fatwa in the Ottoman court. In the first chapter I have tried to analyze the legal culture
in which the fatwa producers, muftis grew. After examining the Ottoman learned hier
archy, the legal identity of the chief mufti has been discussed. Then I have concentrated
on the provincial legal consultation, an obscure topic, and suggested some evaluations
under the light of the data derived from the biographical sources of the Ottoman learned
hierarchy. Some characteristics of their career lines has been observed. Their roles in the Ottoman legal culture have been analyzed. Following the examination of the Otto
man muftiship, it has been concluded that the Ottoman political patronage on the ifti’ institution is very conspicuous.
In the second chapter, I have shifted to a different problem, both in tenns of topic and methodology. In this chapter the Ottoman fatwa has been analyzed, in its process of textual production. I have excluded the complex fatwas of the chief muftis issued for the public and political affairs, and limited my analysis within the boundaries of the ordinary fatwas issued for the individual petitions for their legal transactions. I have scrutinized the essential institutions in fatwa production, the fatwa department, as a bureaucratic establishment with its technology of fatwa-making. In this respect the supervisor of the department, fetva-emini, and his career features have been put under examination. The procedure of fatwa production in the fatwa department has been dis-
143 cussed. In the second section of the second chapter the textual, stylistic and linguistic
characteristics of the Ottoman fatwa have been investigated under the light of the origi
nal fatwas in detail. The textual components, the invocation, the query, the ruling, the
signature and the reference sections have been examined in relation to their functions in
practice of Islamic law and pre-modern document-making technology. In this respect the linguistic characters and the usage of legal terminology has been discussed in refer
ence to the features of the legal language in the Ottoman culture. In the last section of the second chapter I have analyzed the main features of the fatwa compilations in the
Ottoman legal culture. Their legalistic and codicological characteristics has been put under the investigation and their functions in the Ottoman legal culture have been ex amined. The basic conclusion of the second chapter was that the technology of fatwa- making in the Ottoman legal culture has been highly systematized and bureaucratized.
In the third chapter the functions of the fatwa in the court registers have been handled. After a brief survey upon the textual characteristics of the court registers in which fatwa was used, the function of the fatwa in the Ottoman court procedure has been scrutinized under the light of some selected lawsuits from Ankara court registers of the late lb'*" and early 17‘'‘ centuries. In this respect the statuses of different legal in struments, testimony, presentation of document and oath have been compared with the role of the fatwa in the trials. I have examined different litigations in which legal con sultation was applied and evaluated them to highlight the different functions of the fatwa in the Ottoman court ritual. In the third section, the enforceability of the fatwa has been discussed. The relationship between the court, mufti and the sultanic authority has been examined under the light of some sultanic ordinance.
144 Throughout the study I came to the conclusion that the legal consultation in the
Ottoman legal culture was highly bureaucratized and became a permanent component of
the judicial system. The fatwa-makers were incorporated into the bureaucratic apparatus of the Ottoman state. The technology of fatwa-making became systematized and stan dardized. The function of the fatwa in the Ottoman court was institutionalized.
On the other hand, in my examinations on the process of fatwa-making and court procedure, I came to the conclusion that the essential step for the Ottoman ifla’ was the construction of the question section in the fatwa text. The key legal message of the fatwa was contained in this section. The legal message was formulated into one or more conditions upon which the direct question was conducted. Most of the time the answers were shortcut replies which depended on the longish question section including a num ber of condition. On the other hand, this section was drafted upon the exposition of the litigant, form his or her perspective. Correspondingly, in the court, the kadi had to com pare the conditions of this very question section with the conditions of the lawsuit at his hand. And, if he was convinced by the concordance of the conditions of the fatwa and of the lawsuit, he would decide in accordance with the fatwa. In other words, the relation ship between the kadis and the muftis was formed with the mediation of the conditions of the fatwa and the lawsuit. The mufti gave his ruling upon the conditions of the fatwa whereas the kadi gave his judgment upon the conditions of the lawsuit. Under the con cordance between the fatwa and the lawsuit, the kadi was expected to judge in accor dance with the ruling of the fatwa. Nevertheless it was the kadi who decided this very concordance.
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165 PICTURES
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