The Madhhab Administration in Kurdistan and the Banal Affair of a Kurdish Tribe

By Yavuz Aykan

This is the second essay in a series of four essays on “Why the Ottoman fiqh? Reading Ḥanafī jurisprudence in its historical longue durée.”

Before revisiting the legal drama of the Ṣinkān tribe, let me first share some background information about the historical site in which the case took place. During the 18th century, the city of Āmid was the capital of the Diyarbekir Province. In the Ottoman administrative vocabulary, the city was not considered a part of historical Kurdistan until 1846, when the Ottoman Empire created the Kurdistan Province as a unified administrative entity within its territories. This new Province was to survive only 21 years.

As for the legal structure, during the 18th century, it is certain that the city had a Ḥanafī court and a Ḥanafī judge. Notably, the city of Āmid, as was the case with most parts of historical Kurdistan, had a considerable Shāfiʿī population since the Arabs and the Kurds inhabiting the region mostly belonged to this madhhab. Nevertheless, unlike the Greater Syrian cities where the activities of the Shāfiʿī courts can be traced, albeit with limited jurisdictional power, in Āmid, the available sources suggest that in the city there was no Shāfiʿī court.[1] In cities such as Harput and Mardin, the sub-districts of the provincial capital Āmid, we do not see any Shāfiʿī judges or courts either. In official correspondences between the imperial center and the sub-provincial offices, we can detect the existence of qāḍī courts in certain Kurdish hereditary emirates. However, the madhhab to which these courts belonged and the whereabouts of any court records that might have survived and would reveal their activities deserve a thorough investigation.[2]

Be that as it may, the madhhab plurality of the historical Kurdistan led the imperial center to appoint two provincial muftīs in the city of Āmid, one Ḥanafī and one Shāfiʿī. The appointment letters of the 18th century show that the Ḥanafī muftī of Āmid was directly appointed by the imperial center from among the graduates of the famous madrasas of the city. By contrast, the Shāfiʿī muftīs were always appointed upon the requests of the provincial subjects with a letter (‘arẓuḥāl) addressed to the imperial center. What is more, the court records of Āmid contain frequent fatwās formulated by the Ḥanafī muftī of the city and adduced to the court cases. By contrast, the activities of the Shāfiʿī muftīs cannot be traced in any court documents.[3] These facts suggest that the Ottoman court of Āmid was first and foremost a Ḥanafī institution, following the official madhhab of the Empire from the initial stages of the constitution of the Ottoman legal institutions.[4] This observation also implies that the activities of the Shāfiʿī muftī of the city were limited to the regulation of daily consultative needs of Shāfiʿī subjects, outside of the legal court.

With this jurisdictional and institutional background in mind, let’s now turn back to our legal affair.

On December 7, 1746, four members of the Kurdish tribe called Ṣinkān, who were inhabitants of the Muṣṭafā Paşa neighborhood of Āmid, went to the local court to bring a lawsuit against a certain Ḫıẓır and his father Abdi, identified in the court record as son of a certain Ḥasan. They were inhabitants of the village of Ḳāḍı Kendi which suggest that the defendants lived outside of the city of Āmid. Ḫıẓır and his father Abdi were held responsible for the death of a certain Resūl. The victim Resūl was identified in the court register as the litigants’ brother. The defendants Ḫıẓır and his father Abdi were identified in the court register as the enemies (ḫaṣım) of the plaintiffs. Hence, at stake was a murder case that bound together kinship relations and tribal affiliations. The formal language of the court record summarizes the legal drama at hand:

“The inhabitants of the Muṣṭafā Paşa quarter, one of the quarters of the city of Āmid, the holders of the present [court document], from the community of Ṣinkān, Gülci daughter of Ali,[5] Mehmed, Ali, and Ḥüseyin, the sons of Cemşid, and their sister Meryem, all personally present before the honorable sharī‘a court, brought suit against their enemies Ḫıẓır and his father Abdi, son of Ḥasan, both inhabitants of the village of Ḳāḍı Kendi and declared: Three months before the present trial, in the aforementioned village [i.e. Ḳāḍı Kendi] our brother Resūl son of the aforementioned Cemşid had fought [i.e. with the defendants] without reason, over grapes, in the vineyard of the aforementioned [i.e. defendants]. During the dispute, the aforementioned Ḫıẓır gave a blow with a sword to the head of our aforementioned brother Resūl and wounded [him] and the aforementioned Abdi struck his heart with a spade handle; as a result, his heart swelled and he fell down into the bed and [subsequently] died. [At present] we demand his blood money, and that [the assailants] be interrogated and their statement be entered into the records.”[6]

After the declaration of the plaintiffs, the judge interrogated the defendants, who denied the charge. Conforming to the rules governing the administration of evidence in Islamic law, this was a necessary step since, in legal procedures, the presentment of evidence and a denial was necessary before going to the next step. Hence, the judge then asked the plaintiffs to provide evidence to support their allegation. The formal language of the court record runs as follows:

“After the interrogation, and following the denial, when the administration of evidence was requested from the aforementioned defendants, one hunter [named] Seyyid Mehmed son of Aḥmed, the inhabitant of Çermik [village], and one Osman son of İbrahim, inhabitant of the Muʻallaḳ quarter, both free, honorable, and just Muslims were present before the sharī‘a court to bring testimony and declared that the truth of the matter is that three months before the present hearing, in the village of Ḳāḍı Kendi, the aforementioned late Resūl, son of Cemşid, the testator of the aforementioned plaintiffs, had fought without reason with Ḫıẓır and his father Abdi son of Ḥasan over grapes in their vineyard. During the dispute, Ḫıẓır gave a blow with a sword to the head of Resūl, and his father aforementioned Abdi struck his heart with a spade handle in our presence. As a result, he died. We are witnesses in this case and we testify [to it].”[7]

Based on the testimony from the witnesses, the judge decided the case. The verdict closing the trial was as follows:

“After the interrogation, their testimonies were accepted [as valid]; and consequently, the aforementioned Ḫıẓır and his father Abdi were admonished to pay the blood money due to the aforementioned plaintiffs in its entirety, as required by the sharī‘a. What has happened was recorded upon request [by the plaintiffs] on December 7, 1746.

The circumstantial witnesses: Aḥmed Agha the tax gatherer, Aḥmed son of Mehmed the vendor of knives, the Janissary Ali the subordinate of Aḥmed Agha, Ibrahim Agha son of al-hajj Emin Agha, Seyyid Muṣṭafā son of Ḥamza.”[8]

The above court record is a very ordinary one in that a group of plaintiffs demand blood money for their brother’s murder. From this perspective, the verdict pronounced by the judge came with binding force to the document in question which had the power to oblige the losing party to pay the blood money. In short, bearing the seal of the judge, this court certificate (ḥüccet) is no more than a written representation of the judge’s verdict on the subject in question, and it was handed to the winning party. A draft of this document was safeguarded in the court’s archives.

However, as we shall see in our next essay, four and a half months later, the same plaintiffs and defendants returned to the court to tell the judge a radically different story. This second trial is of prime importance not only for testing the legal authority of a qāḍī’s judgment but also for understanding the work of a provincial muftī and his role in writing fatwās referencing specific Ḥanafī texts.

Notes:

[1] For the legal structures of Greater Syria, see the following works: Benjamin Lellouch and Nicolas Michel, eds., La conquête ottomane de l’Egype (1517): Arrière-Plan, Impact, Échos (Brill: Leiden, 2013), particularly the introduction of the volume; and Jane Hathaway, The Arab Lands Under Ottoman Rule, 1500-1800 (Routledge: London, 2007), 46–49.

[2] A case at hand is the orders addressed to the Bey of the Kurdish hereditary emirate Palu and its qāḍī. See, for example, The Library of the Faculty of Divinity at Ankara University, Harput Court Records, 3824-II 152/1b (February 19/March 6, 1639).

[3] See Yavuz Aykan, Rendre la justice à Amid : procédures, acteurs et doctrines dans le contexte ottoman du XVIIIe siècle (Brill: Leiden, 2016), 168–73.

[4] For the history of the Ḥanafī madhhab in the Ottoman context, see Guy Burak, The Second Formation of Islamic Law: The Ḥanafī School in the Early Modern Ottoman Empire (Cambridge: Cambridge University Press, 2017) and Rudolph Peters, “What Does it Mean to be an Official Madhhab? Ḥanafism and the Ottoman Empire,” in The Islamic School of Law: Evolution, Devolution, and Progress, eds., Peri Bearman, Rudolph Peters and Frank E. Vogel (Cambridge: Harvard University Press, 2005), 147–58.

[5] The mother who is not identified as such in this first court record.

[6] Text: “Medine-i Āmid maḥallātından Muṣṭafā Paşa maḥallesinde sākin işbu bā‘iѕü’l-kitāb Sinkān ṭā’ifesinden Gülci bint-i Ali ve Mehmed ve Ali ve Hüseyin ebnā-i Cemşid ile hemşireleri Meryem her birileri bi’l-aṣāle meclis-i şer‘-i ḫāṭır-ı lāzımü’t- tevḳіrde Ḳāḍı Kendi nām ḳarye ahālіsinden ḫaṣımları olan Ḫıẓır ve babası Abdi bin Ḥasan maḥẓarında üzerlerine da‘vā ve taḳrīr-i kelām edip tārіḫ-i kitābdan üç ay muḳaddem karındaşımız Resūl bin el- mezbūr Cemşid ḳarye-i mezbūrede mezbūranın bāġında üzüm üzerine bilā-sebeb ġavgā ve eѕnā-i ġavgāda mezbūr Ḫıẓır karındaşımız mezbūr Resūl’ün başına kılıç ile ḍarb ve cerḥ ve mezbūr Abdi dahi bel sapıyla yüreği başına ḍarb ve te’sīrinden nāşі yüreği bāşı güb ve şiş ve ṣāḥib–firāş olub fevt olmağla dem ü diyetini ṭaleb ideriz, su’āl olunub taḳrīri taḥrīr olunması maṭlūbumuzdur….”

[7] Text: “…gıbbe’s-su’āl ve aḳіbü’l-inkār müdde‘iyūn-ı mezbūrūndan müdde‘ālarına mübeyyin beyyine ṭaleb olundukda ‘udūl-i aḥrār-ı ricāl-i müslimīnden Çermik ahālіsinden Avcı Seyyid Mehmed bin Aḥmed ve Muʻallaḳ maḥallesi ahālіsinden Osman bin İbrahim nām kimesneler li-ecli’ş-şahādet meclis-i şer‘e ḥāẓırân olub isre’l- istişhād fi’l- ḥaḳīḳa müdde‘iyūn-ı mezbūrūnun mūriѕleri ḳātіl-i mezbūr Resūl bin Cemşid’i tārīḫ -i kitābdan üç ay muḳaddem Ḳāḍı Kendi nām ḳaryede mezbūr Ḫıẓır ve babası Abdi bin Ḥasan’ın bāġında üzüm üzerine bilā-sebeb ġavgā ve esnâ-i ġavgāda mezbūr Ḫıẓır mezbūr Resūl’ün başına kılıç ile ḍarb ve cerḥ ve babası mezbūr Abdi dahi bel sapıyla yüreği başına bizim ḥuẓūrumuzda ḍarb ve te’sīrinden nāşі fevt oldu, biz bu ḫuṣūṣa bu vech üzere şāhidleriz her birimiz şehādet dahi ederiz….”

[8] Text: “…ba‘de’t-ta‘dīl ve’t-tezkiye şehādetleri maḳbūle olmağın mūcebiyle mezbūrān Ḫıẓır ve babası mezbūr Abdi’ye şer‘an lāzım gelen diyet-i kāmileyi müdde‘iyūn-ı mezbūrûna edā ve teslīme mezbūrān Ḫıẓır ve babası Abdi’ye tenbīh birle mā vaḳ‘a bi’t-ṭaleb ketb olundu. Fī 23 ẕi’l-ḳa‘de sene 1159; [şuhūdü’l- ḥāl]: Aḥmed Āġā taḥṣіldār, Aḥmed bin Mehmed bıçakçı, Ali Beşe tābi‘-i Aḥmed Āġā, İbrahim Āġā bin el-Hâc Emin Āġā, Seyyid Muṣṭafā bin Ḥamza.”

(Suggested Bluebook citation: Yavuz Aykan, The Madhhab Administration in Kurdistan and the Banal Affair of a Kurdish Tribe, Islamic Law Blog (Dec. 14, 2023), https://islamiclaw.blog/2023/12/14/the-madhhab-administration-in-kurdistan-and-the-banal-affair-of-a-kurdish-tribe/)

(Suggested Chicago citation: Yavuz Aykan, “The Madhhab Administration in Kurdistan and the Banal Affair of a Kurdish Tribe,” Islamic Law Blog, December 14, 2023, https://islamiclaw.blog/2023/12/14/the-madhhab-administration-in-kurdistan-and-the-banal-affair-of-a-kurdish-tribe/)