By Yavuz Aykan
This is the first essay in a series of four essays on “Why the Ottoman fiqh? Reading Ḥanafī jurisprudence in its historical longue durée.”
In my essay series, I will focus on a complex lawsuit in order to raise questions that I find important for studying the history of the Ḥanafī legal tradition in a longue durée perspective. I will do so by paying particular attention to the application of law in social praxis. I begin with an old question: Can the judgment of a qāḍī be overruled or challenged by the same qāḍī or by another one? According to the legal scholar Émile Tyan (d. 1977), in Roman law, unlike the Islamic legal system, what has already been judged can no longer be the subject of a new legal contestation.[1] In this case, the “judged thing,” in Tyan’s words, is regarded as the expression of the truth itself, a fiction that is necessary to achieve social peace, putting an end to the incessant renewal of conflicts. However, according to Tyan, in the Islamic legal system, the annulment of a judgment is possible only in the case if there is an error in law and not an error in the facts of the case.[2]
In a similar vein, Baber Johansen also argues that, after the verdict, if the witnesses on whose testimony the verdict was pronounced come to the court for a second time and declare that they have lied or acted in bad faith with the aim of harming the defendants, and that they want the verdict to be annulled, they are legally punished, but neither the verdict nor their testimony is annulled.[3] Johansen also mentions that Ḥanafī jurists of the Ottoman period developed arguments regarding the annulment of a qāḍī’s judgment. He underlines that jurists such as Khayr al-Dīn al-Ramlī (d. 1081/1671) and Ibn ʿĀbidīn (d. 1252/1836) developed new opinions where they argued that the annulment of a judgment that was already pronounced was possible on the basis of new testimony. Because of his preoccupation with the other dimensions of the issue, Baber Johansen does not elaborate on whether these Ottoman jurists allow the annulment of a judgment even when there were errors in the facts of the case.
While focusing on the question of the authority of a qāḍī’s judgement, I will underline the importance of studying the history of the Ottoman legal tradition and its application in specific court cases to observe the uses and transformations of Ḥanafī legal doctrine throughout history. I take as my point of departure a complex legal case that was heard in two different court sessions before the judge of the city of Āmid, the capital of the Ottoman Empire’s Diyarbekir Province.[4] The first court session involves some members of a Kurdish tribe named Ṣinkān who left their traces in the court’s archives for the first time on December 7, 1746. They won a case against two men named Ḫıẓır and Abdi whom they held responsible for the blood money (diyet) of their brother named Resūl.[5] On April 9, 1747, the same plaintiffs came to the court for a second time to demand that the judge annul the first verdict, confessing that they had lied during the court process and had relied on perjurers as witnesses.[6]
What happened in between and in the wake of these two episodes? We have no evidence about whether the plaintiffs were punished after this confession. Nevertheless, the “four and a half” months,[7] which had elapsed since the first trial, suggest that there were negotiations between the plaintiffs and the defendants outside of court. Their confession during the second court session makes it patently obvious that the plaintiffs asked the court of Āmid, as the final authority, to respect this compromise between the parties and to annul its initial decision. Moreover, similar to what Émile Tyan points out in the context of Roman law, the jurists of Āmid acted to maintain social peace between the parties. However, in this context, contrary to the principle of Roman law, they did so by overturning the first case, although there was an error in its facts in the form of false witnessing.
The technical details of this legal drama aside, finding a solution to such a complicated issue by the legal authorities of the city of Āmid offers us, as historians of Islamic legal tradition, a valuable opportunity. We can discuss aspects of the history of Ḥanafī law as applied in this particular case. As we will see in the subsequent essays, the judge could annul the first verdict in the second trial by following a particular line of legal reasoning that was formulated in a fatwā issued by the Ḥanafī muftī of the city. What is more, the three Ḥanafī texts that the muftī cited in order to support his legal reasoning made it possible for him to undo the knotty points of the litigation in question. In this case, writing a fatwā was a particular interpretive technique that did not seek to fit the circumstances to a particular legal code. By reading specific Ḥanafī texts, writing a fatwā was, first and foremost, a coherent exercise of legal interpretation exercised by the muftī. This exercise required the muftī to deal with each legal case in its own context, in order to arrive to the right and intended conclusion.[8]
As we will also see in this series of essays, at a more macro level, the fatwā in this case and the legal texts cited by the muftī of Āmid provide the historian with a chance to highlight three levels of historiographical interpretation central for historicizing Islamic legal doctrine: (1) the importance of understanding the uses and the application of Ḥanafī legal doctrine in particular court cases; (2) the need to deal with Islamic law on a longue durée historical canvas in order to understand the larger transformations of this tradition throughout Eurasia; and (3) the ability to grasp the critical historical moments when the primacy accorded to certain texts attests to the character of Islamic normative tradition as a fertile jurisprudential terrain which paved the way to the crystallization of the Ottoman Code of Civil Law (Mecelle-i Aḥkām-ı ‘Adliyye) in the 19th century.[9] From this perspective, approaching the legal undercurrents of the Ottoman state as the last Ḥanafī territorial empire also provides a lens for the historian to view the history of Islamic law and its accumulation as a dynamic intellectual tradition that survived into the 21st century.
Notes:
[1] Émile Tyan, “L’Autorité de la chose jugée en droit musulman,” Studia Islamica 17 (1962): 81–90. Tyan also underlines that the annulment of a judgment was possible in extraordinary cases. For an interesting case study, see Mariam Sheibani, “Judicial Crisis in Damascus on the Eve of Baybars’s Reform: The Case of the Minor Orphan Girl (651–55/1253–57),” Islamic Law and Society 29, no. 4 (2022): 425–56.
[2] It is worth mentioning that some of the classical arguments of Tyan, particularly in relation to the office of the Qāḍī in Islam, has been updated. See, for example, Mathieu Tillier, L’invention du cadi: La Justice des musulmans, des juifs et des chrétiens aux premiers siècles de l’Islam (Paris: Éditions de la Sorbonne, 2017).
[3] Baber Johansen, “Le jugement comme preuve : preuve juridique et vérité religieuse dans le Droit Islamique Hanéfite,” Studia Islamica 72 (1990): 5–17. See especially ibid, 13.
[4] I have examined the legal history of the Āmid court in the 18th century in detail in my book published in 2016. See Yavuz Aykan, Rendre la justice à Amid : procédures, acteurs et doctrines dans le contexte ottoman du XVIIIe siècle (Brill: Leiden, 2016).
[5] The National Library of Ankara (NLA), Diyarbekir Court Records (DCR) 313 (65a-1).
[6] NLA, DCR 313 (76b-1).
[7] Looking at the dates registered, the time period between the two trials is four months and two days. However, as shall be seen in the following essays, in their declarations the plaintiffs underlined that four months and half have passed between the first and the second trial.
[8] For fatwās in litigation, see Aykan, Rendre la justice à Amid, especially the third part of the book.
[9] For a preliminary attempt at such a reading, see Yavuz Aykan, “From the Ḥanafī Doxa to the Mecelle: The Mufti of Amid and the Genealogies of the Ottoman Legal Tradition,” in Forms and Institutions of Justice: Legal Actions in Ottoman Context, eds., Yavuz Aykan and Işık Tamdoğan (Istanbul: Institut français d’études anatoliennes, 2019). For a doctrinal reading of the sources of the Mecelle, see Samy A. Ayoub, Law, Empire and the Sultan: Ottoman Imperial Authority and Late Ḥanafī Jurisprudence (New York: Oxford University Press, 2020). See also the relevant chapters of the following work in case of landed property: Martha Mundy and Richard Saumarez Smith, Governing Property, Making the Modern State: Law, Administration and Production in Ottoman Syria (London: I. B. Tauris, 2007).
(Suggested Bluebook citation: Yavuz Aykan, Introduction: On the Authority of the Qāḍī’s Judgment, Islamic Law Blog (Dec. 7, 2023), https://islamiclaw.blog/2023/12/07/introduction-on-the-authority-of-the-qa%e1%b8%8dis-judgment/)
(Suggested Chicago citation: Yavuz Aykan, “Introduction: On the Authority of the Qāḍī’s Judgment,” Islamic Law Blog, December 7, 2023, https://islamiclaw.blog/2023/12/07/introduction-on-the-authority-of-the-qa%e1%b8%8dis-judgment/)