By Yavuz Aykan
This is the fourth essay in a series of four essays on “Why the Ottoman fiqh? Reading Ḥanafī jurisprudence in its historical longue durée.”
In my previous essay, I have detailed how the court certificate that the Ṣinkān tribe obtained with false witnesses was annulled upon the confession of the plaintiffs during a second court hearing. I have shown that the fatwā formulated by the Ḥanafi muftī of Āmid played an important role in this. The books of fiqh consulted by the Ḥanafī muftī of Āmid in order to legitimately establish his fatwā are perhaps the best examples of what the historical documents refer to as the “most authoritative books of fiqh”[1] penned through the Ottoman period. In addition to being some of the touchstones of Ottoman Ḥanafism, these three books are of great importance in understanding the amalgamation and uses of Ḥanafī legal knowledge up to the time of their authors.
The jurist and mystic Şeyh Bedreddin Maḥmūd (d. 823/1420), the author of Jāmiʿ al-Fuṣūlayn, is well known for his rebellion against Mehmed I (d. 824/1421), during the so-called “interregnum” (1403–1412). He was the son of a frontier ghāzī and the daughter of a Byzantine commander.[2] His reputation for being one of the most charismatic rebels of Ottoman history, which is mostly owed to the left-wing literature, has overshadowed the key importance he has played in the history of Ottoman Ḥanafism.[3] In the Ḥanafī biographical dictionaries, there is likewise almost no information about Ṣāḳızī Ṣādıḳ Mehmed Efendi, (d. after 1059/1649), the author of Surrat al-Fatāwī—in spite of his being the author of this very important Ḥanafī work. The patronymic Ṣāḳızī suggests that he was born on the island of Chios where he worked as the scribe of its legal court. We also know that he served as the qāḍī of the legal court of the Anatolian town Kütahya.[4] Finally, the author of al-Fatāwā al-Khayriyya li-Nafʿ al-Bariyya, the Palestinian jurist Khayr al-Dīn al-Ramlī, has attracted more attention from scholars as a jurist than the first two.[5] Be that as it may, they lived in very different parts of the empire at different times. Uniting these authors is the fact that their books represent important amalgamations of Ḥanafī jurisprudence and seminal sources for legal consultation and fatwā writing. As I will underline in the following lines, these books, which were (and continue to be) considered authoritative works of fiqh, constitute important cornerstones in the historical journey of the Ḥanafī madhhab. It moved from a tradition of vast and diverse legal interpretations to a legal corpus close to positive law that was to emerge in the 19th century.[6]
I will begin with Şeyh Bedreddin Maḥmūd whose book is the first cited in the fatwā presented to support overturning a judgment that had a false verdict, analyzed in my last essay. When Şeyh Bedreddin Maḥmūd wrote his book, Jāmiʿ al-Fuṣūlayn, Ottoman society was experiencing serious political crisis. He wrote the book between the years 1410–1411, towards the end of what is termed by the historians as the interregnum, during which Bayezid I’s (d. 1403) sons were fighting over the throne. Şeyh Bedreddin Maḥmūd served as military judge under Mūṣā Çelebi (d. 1413). They wanted to together revitalize the Ottoman political structure and to revive the Ottoman state. In other words, they wanted to rebuild the state after Tamerlane defeated Bayezid I at the Battle of Ankara in 1402.[7] In Jāmiʿ al-Fuṣūlayn, Bedreddin summarized and condensed two multi-volume Transoxanian Ḥanafī works: The first was Fuṣūl al-iḥkām fī uṣūl al-aḥkām of the Transoxanian jurist ‘Abd al-Raḥīm ibn Abī Bakr al-Marghīnānī (d. sometime in the 13th century) and the second Muḥammad ibn Maḥmūd ibn al-Ḥusayn al-Usrūshanī (d. 1234 (?)). Bedreddin’s Fuṣūl, which covers important issues related to both transactional and judicial law, was long the main reference work for muftīs and qāḍīs in the Empire from the 15th century onwards.[8]
By the 17th century, the Empire was already at the height of its geographical limits. The medieval Ḥanafī tradition, which had spread across Eurasia, was being reinterpreted and amalgamated, together with already existing works of Ottoman jurisprudence, in new Ottoman Ḥanafī texts. This 17th century-turn can best be understood by glancing at the works of Ṣādıḳ Mehmed Efendi, Ṣāḳızī, and Khayr al-Dīn al-Ramlī, whose texts represent, in my opinion the imperial character of the Ottoman Ḥanafī doctrine. In Surrat al-Fatāwī, Ṣādıḳ Mehmed Efendi compiled the opinions of important imperial muftīs of the Empire, such as Mullah Ḫüsrev (d. 1480), Kemalpaşazāde (d. 1536), and Ebüssuʿud (d. 1574), on various legal subjects. He also incorporated fatwās and ideas of muftīs of other provinces, such as those of the muftīs of Bosnia, Damascus, Gallipoli, and Gaza, among others. Unlike the other collections of fatwās of this kind, Surrat al-Fatāwī mentions the legal reasoning behind each case, using various Ḥanafī fiqh works.[9] The book’s “unifying” character may well explain its popularity for the muftīs of the Empire and its practicality for use in legal consultation. In a similar vein, the Palestinian jurist Khayr al-Dīn al-Ramlī’s work, al-Fatāwā al-Khayriyya li-Nafʿ al-Bariyya contains 2161 fatwās on issues encountered or discussed in daily life across different regions of the Ottoman Empire, such as al-Ḥaremeyn, Anatolia, Istanbul and Greater Syria in the 17th century. It is of great importance in reflecting the social structure and socio-cultural values of the period, especially in the Greater Syrian region.[10]
In addition to their intellectual depth, all three of these “author jurists,”[11] made the complex Ḥanafī tradition more accessible for muftīs and qāḍīs in their endeavor to find resolutions to daily legal conflicts. Examined from this perspective, the easily consultable and applicable nature of these texts should be considered the main reason for their popularity among muftīs and judges, rather than any “ideological” character that they might represent in the eyes of the Ottoman dynasty.[12] In certain cases, these texts even incorporated legal principles covered by the earlier Ottoman kanuns. In short, in the 17th century, sharī‘a indeed triumphed over the Ottoman kanun, but this was the triumph of a “more predictable” imperial legal corpus rather than the triumph of fanaticism.[13]
Finally, these three books, along with others, informed the terms of the Ottoman Civil Code (Mecelle-i Aḥkām-ı ‘Adliyye) which remained in force between the late 19th and the early 20th centuries. The Mecelle continues to influence jurisprudence, just as the Roman legal corpus does, in a number of post-Ottoman settings. The creation of the Commission of the Mecelle on the order of Sultan Abdülaziz (d. 1876) came at a time of intense debate over the possible implementation of the 1804 French Civil Code in the Ottoman Empire. The aim of the Mecelle’s drafting was to create an Ottoman civil code compatible with European models, while respecting the principles of Ḥanafī fiqh.[14] The authoritative books of fiqh, only three of which have partly formed the topic of my essays, served as foundations for drafting this influential Code. It is precisely at this point that these books should be considered important steps (throughout the late medieval and the early modern periods) toward refining the broad normative tradition of the Ḥanafī madhhab and transforming it into a more accessible and applicable law—one that became most crystalized through the drafting of the Mecelle in the 19th century. Arguably, this historical legal depth, molded during the final stages of the Ottoman state’s lifespan, the last territorial Empire, can best explain the enduring influence of the Mecelle even during the 21st century.
Notes:
[1] To the best of my knowledge Selma Zečević is the first scholar who called our attention to the importance of these “authoritative books” in fatwā writing in the Ottoman Ḥanafi tradition. See Selma Zečević, “On the Margin of Text, On the Margin of Empire: Geography, Identity, and Fatwá-Text in Ottoman Bosnia” (PhD diss., Columbia University, 2007). By drawing on the ṭabaqāt literature and Ḥanafi works, the following studies have also underlined the primacy accorded to certain texts this tradition: Guy Burak, The Second Formation of Islamic Law: The Hanafi School in the Early Modern Ottoman Empire (Cambridge: Cambridge University Press, 2015) and Samy A. Ayoub, Law, Empire and the Sultan: Ottoman Imperial Authority and Late Hanafi Jurisprudence (Oxford: Oxford University Press, 2020). I should perhaps note that we still need to do extensive research through the Ottoman court records in order to ascertain to what degree the works mentioned by Burak and Ayoub were considered to be authoritative in legal practice. As for the case of the cities such as Āmid, Harput and Mardin, Şeyh Bedreddin Maḥmūd’s Jāmiʿ al-Fuṣūlayn and Ṣāḳızī Ṣadıḳ Mehmed’s Surrat al-Fatāwī were the most frequently cited Ḥanafi works by the provincial muftīs during the early modern period. See Yavuz Aykan, Rendre la justice à Amid : procédures, acteurs et doctrines dans le contexte ottoman du XVIIIe siècle (Brill: Leiden, 2016), 183–84.
[2] See Cemal Kafadar, Between Two Worlds: The Construction of the Ottoman State (University of California Press, 1996), 143.
[3] This reputation is mostly owed to a book entitled The Epic of Sheikh Bedreddin, the Son of the Qāḍī of Simavne (Kyprinos). The book was published in 1936 by Nazım Hikmet Ran, a communist poet who died in 1963 in Moscow, while he was in exile.
[4] See Şükrü Özen, “Osmanlı Döneminde Fetva Literatürü,” Türkiye Araştırmaları Literatür Dergisi 3, no. 5 (2005): 365–66.
[5] As an example, see Judith E. Tucker, In the House of the Law: Gender and Islamic Law in Ottoman Syria and Palestine (University of California Press, 1998).
[6] 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). See also Ayoub, Law, Empire and the Sultan, 129–53.
[7] For the political events of the period, see Dimitris Kastritsis, The Sons of Bayezid: Empire Building and Representation in the Ottoman Civil War of 1402-13 (Brill, Leiden: 2007). See also Saygın Salgırlı, “The Rebellion of 1416: Recontextualizing an Ottoman Social Movement,” The Journal of the Economic and Social History of the Orient 55, no.1 (2012): 32-73.
[8] See Aykan, Rendre la justice à Amid, 239.
[9] For a brief biographical account, see Tahsin Özcan, “Sadık Mehmed Efendi Sakızî,” in Türkiye Diyânet Vakfı İslâm Ansiklopedisi, vol. 35 (Istanbul, 2008), 395–96.
[10] For his biography, see Judith E. Tucker, In the House of the Law. In passim also see Ali Pekcan, “Remlî, Hayreddin b. Ahmed,” in Türkiye Diyânet Vakfı İslâm Ansiklopedisi, vol. 34 (Istanbul, 2007), 563–64.
[11] I borrow the term from Wael B. Hallaq. See, Wael B. Hallaq, “The Author-Jurist and Legal Change in Traditional Islamic Law,” Recht van de Islam 18 (2021): 31–75.
[12] In this respect, my conclusions differ from those of the following work: Burak, The Second Formation of Islamic Law.
[13] Halil Inalcık sees the triumph of fanaticism in this historical shift. See his The Ottoman Empire: The Classical Age 1300-1600 (London: Phoenix, 2000), 179–85. For the interpenetration of sharī‘a and kanun, see Aykan, Rendre la justice à Amid, 173–84.
[14] For the historical context of the time, see Faiz Ahmed, Afghanistan Rising: Islamic Law and Statecraft between the Ottoman and British Empires (Cambridge, MA: Harvard University Press, 2017), 40–59.
(Suggested Bluebook citation: Yavuz Aykan, Madhhab as Law, Islamic Law Blog (Dec. 28, 2023), https://islamiclaw.blog/2023/12/28/madhhab-as-law/)
(Suggested Chicago citation: Yavuz Aykan, “Madhhab as Law,” Islamic Law Blog, December 28, 2023, https://islamiclaw.blog/2023/12/28/madhhab-as-law/)