By Guy Burak
[Muḥammad al-Timurtāshī] said in Minaḥ al-Ghaffār: “the sijill is the document (ḥujja) where the verdict (ḥukm) of the judge [is written].” But this is in their custom (ʿurfihim, i.e. al-Timurtāshī and his circle). In our custom (ʿurfinā, presumably the custom endorsed by the Ottoman learned hierarchy and affiliates), it is a large volume (kitāb kabīr) where the matters/events of the people (waqāʾiʿ al-nās) are firmly kept/recorded (ḍabṭ) and [where] the judge’s ruling [is recorded] and what was written on [the verdict is recorded]. It is deduced that they refer to the document (ḥujja) because the sijill [in their argument] circulates from one land to another, and only the document (ḥujja) circulates from one land to another.
This passage is taken from a commentary by the seventeenth-century jurist Aḥmad ibn Muḥammad al-Ḥamawī (d. ca. 1686/87) on Zayn al-Dīn Ibn Nujaym’s (d. 1563) famous work al-Ashbāh wa-al-naẓāʾir and centers on discrepancies in the interpretation of the term sijill. On the one hand was the interpretation endorsed by an eminent Ḥanafī jurist, the sixteenth-century Muḥammad al-Timuritāshī (d. 1598) of Gaza, one of the most important and respected authorities in the Ottoman Empire and a loyal Ottoman subject, despite the fact that he did not hold an official appointment. On the other was the interpretation promoted by the Ottoman learned hierarchy.
Al-Ḥamawī clearly sensed that there was a tension in terminology and practice that had to be resolved while retaining the integrity of the Ḥanafī tradition. To this end he decided to frame the difference in terms of customary practice (ʿurf), a concept employed in various Islamic jurisprudential traditions, including the Ḥanafī one, that had assisted jurists to account for and accommodate certain differences across time and space. Al-Ḥamawī’s description of the difference may seem egalitarian. Framing the difference in terms of custom, however, assisted al-Ḥamawī in marginalizing al-Timurtāshī’s view, as the Ottoman custom was endorsed by Ottoman dynasty and its learned hierarchy, and as such was more pervasive across the empire. In any case, similar explicit attempts to address terminological and conceptual tensions appear in the writings of other jurists from different parts of the Ottoman Empire. They grappled with the same basic question that al-Ḥamawī was trying to resolve: how should one bridge a gap between the terms and concepts that appear in Ḥanafī jurisprudential texts and the Ottoman practice while retaining the integrity of the Ḥanafī discourse?
Instances like this are illuminating as documents of both method and practice. In most cases, the jurists’ arguments are made in a more subtle manner than al-Ḥamawī’s. But a systematic examination of these instances reveals how radical some of the conceptual/terminological transformations were. At the same time, the strong sense of continuity in the Ḥanafī discourse may have led students of Islamic legal history to overlook some of these changes, as profound as they may have been.
This tension between the continuous use of a term deeply rooted in the Ḥanafī and the Islamic traditions and the changes this term/concept underwent is one of the challenges of the study of Ottoman – and, perhaps, post-Mongol – Islam, and many of the historiographical breakthroughs of the past two decades grew out of the explorations of these tensions. Consider, for example, Hüseyin Yılmaz’s groundbreaking study of the concept of the caliphate in the Süleymanic era, which covered much of the sixteenth century. Yılmaz has meticulously shown that the Ottoman concept of the caliphate as a pole in a mystical-political cosmology was markedly different from the pre-Mongol understandings of the concept.
One can list other institutions and legal and political concepts that underwent radical transformations in the post-Mongol period. A new understanding of the muftīship emerged in the Ottoman domains: jurists could have been appointed to the position of muftīship and, in some cases, removed from it, as opposed to the perception of a muftī as a jurist who received a permit from his teacher to issue fatwās. And the rulings issued by the officially appointed muftīs were enforceable within the Ottoman legal system, as opposed to the understanding of the fatwā as a non-binding ruling. Even the term ʿurf, as we have just seen, was perceived by members of the learned hierarchy as an imperial custom, and not just as a local/communal practice.
One of the reasons that it is often challenging to discern these changes is that different interpretations of the same term/concept circulated simultaneously across the Ottoman Empire. Al-Ḥamawī’s passage attests to this simultaneity. Al-Timurtāshī was a highly-regarded Ḥanafī jurisprudential authority across the Ottoman lands and well beyond, and his interpretation of the term sijill competed with the practice endorsed by the imperial learned hierarchy. Similarly, different interpretations of the term “muftī” coexisted across the Ottoman Empire. It is for this reason that it is difficult to describe practices and interpretations as “pre-Ottoman” versus “Ottoman” (or “pre-Mongol” versus “post-Mongol”). Much of what I have tried to do in my book and several studies on the “second formation” was to explain the dynamics between contesting interpretations and perceptions of institutions and terms. To be sure, some perceptions gained predominance or at least greater visibility over the centuries, but pre-Ottoman understandings were never fully forgotten.
As a historian, I find these instances of alignment, whether real or imagined, between the interest of the historian and that of the historical subject fascinating, almost magical. These instances of what I would like to imagine as moments of shared perplexity have been my signposts and guides in developing my own understanding of the dynamics of the “second formation.” Over the years, I have come to refer to passages like al-Ḥamawī’s as instances where the meta-discourse or the jurisprudential architecture is clearly revealed.
The terminological tensions and acts of translations that were so foundational in my interpretation of the “second formation” are not unique to this time period. To return to the point where we started this short series, they illustrate the inherent discursive tension of many legal traditions: the tension between the need to accommodate change while retaining a sense of commitment to the tradition’s integrity.
 Aḥmad ibn Muḥammad al-Ḥamawī, Ghamz ʿuyūn al-baṣā’ir sharḥ kitāb al-Ashbāh wa-al-Naẓā’ir (Beirut: Dār al-Kutub al-ʿIlmiyya, 1985), vol. 1:330.
 Very little is known about al-Ḥamawī. Apparently, he was not a member of the imperial learned hierarchy and spent most of his career in Cairo. Mustafa Sinanoğlu, “Hamevî, Ahmed b. Muhammed,” in Türk Diyanet Vakfı İslâm Ansiklopedisi, https://islamansiklopedisi.org.tr/hamevi-ahmed-b-muhammed.
 On al-Timuritāshī and his place in the Ottoman lands, see Guy Burak, The Second Formation of Islamic Law: The Hanafi School of Law in the Early Modern Ottoman Empire (New York: Cambridge University Press), ch. 5.
 The historiography on the Ottoman sijill is vast. Among the most recent studies dealing with the legal aspects of the Ottoman court record, see Yavuz Aykan, Rendre la justice à Amid: Procédures, acteurs et doctrines dans le contexte ottoman du XVIIIème siècle (Leiden: Brill, 2016), esp. pt. 2; Guy Burak, “Evidentiary truth claims, imperial registers, and the Ottoman archive: contending legal views of archival and record-keeping practices in Ottoman Greater Syria (seventeenth-nineteenth centuries),” Bulletin of the School of Oriental and African Studies 79, no. 2 (2016): 233-54.
 Ayman Shabana, Custom in Islamic Law and Legal Theory: The Development of the Concepts of ᶜUrf and ᶜĀdah in the Islamic Legal Tradition (New York: Palgrave Macmillan, 2010). See also Martha Mundy, “On Reading Two Epistles of Muhammad Amin Ibn ᶜAbidin of Damascus,” in Forms and Institutions of Justice: Legal Actions in Ottoman Contexts, eds. Yavuz Aykan and Işık Tamdoğan (Istanbul: Institut Français d’Etudes Anatoliennes, 2018), accessible online at https://books.openedition.org/ifeagd/2332 (last accessed on July 25, 2022).
 Hüseyin Yılmaz, Caliphate Redefined: The Mystical Turn in Ottoman Political Thought (Princeton: Princeton University Press, 2018).
 For a detailed discussion of this transformation, see Burak The Second Formation of Islamic Law, ch. 1.
 Burak, The Second Formation of Islamic Law, ch. 1 and 5; Yavuz Aykan, Rendre la justice, pt. 3.
(Suggested Bluebook citation: Guy Burak, Terminological Tensions, Islamic Law Blog (Oct. 20, 2022), https://islamiclaw.blog/2022/10/20/terminological-tensions/)
(Suggested Chicago citation: Guy Burak, “Terminological Tensions,” Islamic Law Blog, October 20, 2022, https://islamiclaw.blog/2022/10/20/terminological-tensions/)