By Yavuz Aykan
This is the third essay in a series of four essays on “Why the Ottoman fiqh? Reading Ḥanafī jurisprudence in its historical longue durée.”
In my second essay, I described how members of the Ṣinkān community applied to the court of Āmid in order to demand the blood money of their brother Resūl. On April 9, 1747, the plaintiffs Gülci, Meryem, Mehmed, Ḥüseyin and Ali appeared before the judge of Āmid for a second time. Yet, this time, the case was not about a lawsuit or accusation, but a confession (iḳrār). Before recording their confession, the court scribe registered the identities of the individuals involved in the case. The parties also stated that the inheritance of Resūl had been shared between his heirs. This means that any confusion surrounding the death of Resūl was resolved and that his estate was officially divided among the heirs. The text was as follows:
The inheritance of the previously murdered Resūl son of Cemşid, inhabitant of the Muṣṭafā Paşa quarter has been shared by his mother Gülci daughter of Ali, his sister Meryem daughter of Cemşid and his brothers Mehmed, Ḥüseyin and Ali sons of the aforementioned Cemşid. [Subsequently] the aforementioned Mehmed, Ḥüseyin, Ali, Gülci and Meryem, whose identities are attested by the sharī‘a [authorities] appeared, all in person, before the honorable sharī‘a court, in the presence of Abdi son of Ḥasan and his son Ḫıẓır, the inhabitants of the village of Ḳāḍı Kendi and the holders of the present [court] certificate.
[The confessors] have declared that: “Four and a half months before the present trial, at the instigation of some ill willed provocateurs, we filed a lawsuit to demand the blood money of the aforementioned Resūl. We declared before the court that in the aforementioned village there had been a fight for no reason over grapes in the vineyard of the aforementioned defendants. In this lawsuit, we prove our allegation that during this fight, the aforementioned Ḫıẓır gave a blow with his sword to the head of our brother Resūl, that his father Abdi struck his heart with a spade handle, and that, as a result, his heart swelled and he fell down into the bed and [subsequently] died. After we gave the necessary testimony, a court certificate was issued, relating to the blood money to be paid [by the defendants]. Nevertheless, we justified, proved, and got certified our allegations [by the court] against the aforementioned Abdi and his son Ḫıẓır by unfounded statements and lies. Indeed, the aforementioned complaint was false and void and our witnesses were themselves untrustworthy.”[1]
This second statement before the judge clearly indicates that the plaintiffs of the first case made their way back to court for one obvious reason: To ask the qāḍī to annul the first judgment. Although we do not know what happened during those four and a half months between the parties, it seems that they had arrived at a negotiated settlement and that, this time, it was necessary to annul or override the binding force of the first court certificate. After the confession of Resūl’s heirs, Ḫıẓır and Abdi brought a fatwā formulated by the Ḥanafī muftī of Āmid. It is registered in the court record as follows:
If Amr, the heir of the victim Zeyd, files a lawsuit [declaring] that Bekir killed Zeyd, and if [Amr] manages to support his accusation with evidence upon which the verdict is pronounced against [Bekir], and later [Amr] declares that “I was lying in this lawsuit [which was] void and that even my witnesses were also lying in their testimonies” and if Bekir [also] demonstrates with evidence that Amr’s confession is well-founded, could the verdict be annulled and revoked?
The correct answer is it can [be annulled].[2]
The fatwā in question shows that the judgment concerning blood money pronounced in favor of Resūl’s next of kin could be annulled in case of such a confession. However, it does not give us any clue as to whether the annulment of the judgment was possible if there was an error in the facts of the lawsuit in question. The three authoritative books consulted by the city’s muftī in order to justify his legal opinion are also registered in the court document.
At this point, it would be useful to underline two details for the reader: Although I give here the full titles together with the authors of these books, in the court records the titles of these books are usually written in abbreviated forms (e.g., “Surra” for Surrat al-Fatāwī) without mentioning their authors. In the following lines, I will give the full titles of these texts together with their authors. Moreover, the quotations from the authoritative books that are consulted by the muftī are not annotated. Hence, in what follows, the reader will find these quotations as they were copied down in the court record by the scribe presumably from a paper on which the Ḥanafī muftī of the city wrote his fatwā together with these quotations. The first quotation in Arabic is from Şeyh Bedreddin Maḥmūd (d. 823/1420)’s Ḥanafī text entitled Jāmiʿ al-Fuṣūlayn:
“The annulment of a judgment is valid, and it is the [preferred] option [or choice]; because it [an annulment] is valid before the verdict is pronounced, it is so [even] afterwards.”[3]
This first quotation does not provide satisfactory details about the real reason that legitimizes the annulment of the first judgment. Although in our case there are obvious errors in the facts, neither the fatwā nor this first quotation addresses this aspect of the subject.
The second passage, quoted from Surrat al-Fatāwī of Ṣāḳızī Ṣadıḳ Mehmed (d. after 1059/1649) reads as follows:
“If the litigant says that he has been deceived, the lawsuit is revocable.”[4]
This quotation reminds us of a detail in the plaintiffs’ confession: They stated that they had initiated the first trial on the “instigation of some ill willed provocateurs.”[5] It may be that in this quotation the expression “he has been deceived” refers to the incitement of litigants by individuals outside of court. Thus, this quotation might imply that the emphasis here is on an error in the facts of our trial. Nevertheless, in none of these quotations is the issue of perjury addressed.
A final citation from Khayr al-Dīn al-Ramlī (d. 1081/1671)’s book entitled al-Fatāwā al-Khayriyya li-Nafʿ al-Bariyya and adduced at the end of the fatwā reads as follows:
“In the same way that it is possible to annul a judgment before the evidence has been presented, so it is after the evidence has been admitted. It is also possible to annul a judgment before the verdict is pronounced; so it is after the verdict has been pronounced. So it is [written] in Dhakhīra.”[6]
This last quotation from Khayr al-Dīn al-Ramlī’s book deals in general with the possibility of revoking a judgment or waiving one on the part of a plaintiff according to Islamic law. At the end of the quotation, we see that Khayr al-Dīn al-Ramlī refers to another work entitled Dhakhīra whose author I have been unable to identify. However, it might be that of the 12th century Maliki jurist Shihāb al-Dīn Aḥmad ibn Idrīs al-Qarāfī.[7] Be that as it may, at the end of the trial, the qāḍī of Āmid pronounces his verdict, this time in favor of Ḫıẓır and his father Abdi, and he annuls the first judgment:
As it is written and pronounced in conformity with the content of the noble fatwā, and since the aforementioned judgement has been annulled and revoked, according to the sharī‘a, the aforementioned litigants are forbidden to attempt any further complaint regarding the aforementioned case.
And in accordance with what is written, they [the plaintiffs] declare: “[As of today] we have no connection whatsoever with any claim and interference regarding the blood money of our late brother Resūl; we request that in accordance with the sealed private document (temessük) that we delivered to them [i.e., to Abdi and Ḫıẓır], a court certificate (ḥüccet) shall be issued. After the legal approval, what has happened has been written on demand on April 9, 1747.”[8]
(No circumstantial witness is registered at the bottom of the case record.)
Diyarbekir Court Records, Register no. 313 (76b-1).
The above fatwā issued in just one city of the Ottoman Empire, and in just one case, reveals fundamental aspects of Ḥanafī law for the legal historian: The Ḥanafī judge and muftī skillfully sidestepped knotty points of legal doctrine to respect the negotiated settlement between the parties who were registered as enemies in the first trial; these moves suggest that, as with Roman law, legal norms in Islamic law could operate to achieve social peace. The two legal systems aimed at reaching similar conclusions. But the paths they took were dissimilar. Simply put, the Islamic legal system reached this conclusion accounting for the specific context in question. In other words, the parties, known to be enemies, reached an agreement over the course of four and a half months, possibly with the involvement of intermediaries (muṣliḥīn). This was recognized by the legal authorities in Āmid. Hence, this whole case, and the interesting and equally instructive fatwā that was brought to court was most likely intended to prevent any hostility and/or blood feud between the parties.
In this case, far from being an oppressive imperial tool in the hands of a Ḥanafī center (Istanbul), for the muftī or the qāḍī, the role of the legal agents was, among others, to harmonize the madhhab diversity within the empire by deploying Ḥanafī doctrine. This point is crucial when we consider the administrative and legal statuses of the Kurdish emirates in the imperial territories that have long been described by historians as principally Shāfiʿī and entirely autonomous from the imperial governmental logic. More specifically, the existing historiography suggests, on a linear reading, that the autonomy earlier accorded to the Kurdish principalities was gradually lost towards the 18th century.
This focus on the Kurdish locale may make us miss the fact that the imperial system of governance took into account local autonomies and idiosyncrasies via its Ḥanafī institutions. As evidence, consider that the members of the Ṣinkān tribe came to the Ḥanafī court from the city of Āmid, and not specifically from any designated autonomous Kurdish emirate. Hence, the administration of Kurdish entities through imperial Ḥanafī doctrine frames a much more complex picture: In urban centers such as Āmid, the ways in which this very autonomy is recognized and at the same time governed through imperial legal institutions show striking features of what I term “madhhab as law.”
In order to dive into the more macro-legal implications of this, in my next essay, I propose that the reader leave the city of Āmid and take a closer look at the longue durée trajectory of the Ḥanafī madhhab in the Ottoman Empire. The books of fiqh, drawn upon by the muftī of Āmid in his fatwā, will form my starting point.
Notes:
[1] Text: “…tārīḫ-i kitābdan dört buçuk ay muḳaddem mezbūr Abdi’nin oğlu mezbūr Ḫıẓır mūriѕimiz müteveffā-yı mezbūr Resūl’ü ḳarye-i mezbūrede mezbūranın üzüm bāġında üzüm üzerine bilā-sebeb ġavgā ve eѕnā-i ġavgāda mezbūr Ḫıẓır mūriѕimiz müteveffā-yı mezbūr Resūl’ün başına kılıç ile ḍarb ve cerḥ ve babası mezbūr Abdi dahi bel sapıyla yüreği başına ḍarb ve te’sīrinden nāşі yüreği güb ve şiş ve ṣāḥib–firāş olup fevt olmuşdur deyü bazı muḥarriklerin sū-i ilgā ve taḥrīkleriyle dem ü diyetini mezbūrāndan ṭaleb ü da‘vā ve ba‘de’l- iѕbāt yedimize hüccet-i şer‘iyye verilmişdi, lākin da‘vāmızı mezbūr Abdi ile oğlu Ḫıẓır üzerine zūr ve tezvіrāt ile iѕbāt ve ḥükm ve hüccet itdirmişdik, lākin da‘vā-yı meẕkūremizde kāẕib ve mübṭil ve şāhidlerimiz dahī keẕālik kāẕibler idi….”
[2] Text: “…Zeyd-i maḳtūlün vāriѕi Amr, Zeyd’i Bekir ḳatl itdi deyü da‘vā ve iḳāme-i beyyine idüb üzerine ḥükm olundukdan sonra ben bu da‘vāda kāẕib ve mübṭil ve şāhidlerim dahi keẕālik şehādetlerinde kāẕibler idi deyü Bekir-i mezbūr Amr-ı merkūmun iḳrārına iḳāme-i beyyine eylese ḥükm-i mezbūr şer‘an laġv ve mütenāḳıḍ olur mu? Cevāb-ı bā- ѕevābında, olur….”
[3] Text: “dafʿal-daʿwa ṣaḥīḥ wa-huwa al-mukhtār wa-kamā yuṣaḥḥ qabl al-ḥukm yuṣaḥḥ baʿadahu….”
[4] Text: “…alā qawl al-muddāʿī anā muntalin fī-l-daʿwa ṣaḥḥ al-daf….”
[5] Text: “…bazı muḥarriklerin sū-i ilgā ve taḥrīkleriyle….”
[6] Text: “…wa-ka-mā yuṣaḥḥ al-dafʿ qabl iqāmat al-bayyina yuṣaḥḥ baʿdahā wa-ka-mā yuṣaḥḥ al-dafʿ qabl al-ḥukm yuṣaḥḥ baʿd al-ḥukm ka-dhā fī-l-Dhakhīra….”
[7] For the life and the works of al-Qarāfī, see Sherman A. Jackson, Islamic Law and the State: The Constitutional Jurisprudence of Shihāb al-Dīn al-Qarāfī (Brill: Leiden, 1996).
[8] Text: “…karındāşımız mezbūr Resūl’ün dem ü diyetine müte‘alliḳ vechen min el-vücūh ‘alāḳa ve medḫalimiz kalmamışdır, yedine verdiğimiz memhūr temessük manṭūḳunca ḳıbel-i şer‘den dahī hüccet terkīm olunsun dediklerinde gıbbe’t-taṣdīḳ-i şer‘ī mā vaḳ‘a bi’t-ṭaleb ketb olundu. Fī 28 Ra. sene 1160.”
(Suggested Bluebook citation: Yavuz Aykan, Modest Yet Crucial: The Work of a Provincial Muftī, Islamic Law Blog (Dec. 21, 2023), https://islamiclaw.blog/2023/12/21/modest-yet-crucial-the-work-of-a-provincial-mufti/)
(Suggested Chicago citation: Yavuz Aykan, “Modest Yet Crucial: The Work of a Provincial Muftī,” Islamic Law Blog, December 21, 2023, https://islamiclaw.blog/2023/12/21/modest-yet-crucial-the-work-of-a-provincial-mufti/)