Ottoman Legal & Social History: A New Look

A review of Les acteurs de la justice à Amid et dans la province du Diyarbekir d’après les sicil provinciaux du 18e siècle (Agents of justice in Amid and the province of Diyarbekir, based on provincial sicil of the eighteenth century), by Yavuz Aykan.

It is now almost a half-century since judicial registers (sicils) have formed the primary basis for studies of Ottoman social history (at least since Ronald Jennings’ work in the early 1970s, and he was not the first if we take into account Turkish scholars). From Leslie Peirce’s influential study of law and morality in Aintab/Gaziantep (Morality tales: Law and Gender in the Ottoman Court of Aintab, Berkeley: University of California Press, 2003) to Boğaç Ergene’s account of oral and written documentation in Kastamonu (Local court, provincial society, and justice in the Ottoman Empire, Leiden-Boston: Brill, 2003), only to note two among many influential recent studies, these studies alternatively focus on either mentalities and social realities in certain regions, or on the function of the judicial institutions and their interaction with both state and local society. Yavuz Aykan, a student of the late Gilles Veinstein, has selected the archives of the city of Amid (modern Diyarbakir) and its province in the rather neglected period of the eighteenth century; and he has chosen the second of these two main approaches.

Aykan’s problématique is structured along the three central figures in the Ottoman legal field, namely the judge (kadı), the governor, and the müfti, and the role played by them in the judicial procedure. In his introduction (pp. 5-55) the author surveys the relevant literature, focusing on the critique against Max Weber’s notion of Kadijustiz and the analyses by Ronald Jennings, Uriel Heyd, Haim Gerber, Leslie Peirce, Işık Tamdoğan, and others; and on the fact that the very nature of judicial registers tends to overestimate the role of judges and conceal these other two figures. Moreover, Aykan notes that the notary function of the Ottoman judge is not only neglected by students of his office (with some notable exceptions), but was also (officially at least) ignored by the judge himself, since the value of documents as legal proofs was far too weak in comparison with oral testimonies, for instance. Aykan thus proposes to base a study of the sicils on the interplay of these three institutional actors: the judge, the governor, and the mufti.

After this description of his problématique, the author describes in short the political and administrative situation of Amid and its province, dominated by the overwhelming presence of Kurdish tribes. A detailed topographical description of the town of Amid and its quarters, based on tax registers and other sources, stresses the various ethnic groups of the town and the different ways they are described in the sicils, which mainly differentiate between settled and nomadic population (pp. 42-44). The introduction ends with a description of the sources used (the court registers of Amid and some neighbouring cities in the first place, plus some documents from the Başbakanlık Ottoman archives in Istanbul and various legal and historical manuscripts). Finally, Aykan examines briefly the Hanafi jurists that were used by Amid muftis, from Abu al-Hasan al-Karkhi (d. 952) to Khayr al-Din al-Ramli (d. 1671).

The first part of the dissertation (pp. 56-126) concentrates on the interplay between judge and governor. To start with, Aykan first examines the judgeship and the functions of the judge. He begins with an analysis of the administrative structure of Diyarbakir province from the jurisdictional point of view, i.e. the kazas and the hierarchies of legal nomenclature. As an example, he describes the career of Kara Yusuf Efendi, who was judge of Amid in 1727-28, showing that this post required long training and experience as it often formed the last step toward the highest judgeships of the Empire. The office and duties of a ka are thoroughly described with the help of a valuable source, an early-eighteenth-century local treatise on fiqh which stresses the judge’s function as guarantor of the shari’a and thus of social peace. Aykan embarks on a detailed analysis of the various types of documents according to a source heretofore largely neglected, namely style-guides and manuals for the court scribes, in order to stress the function of the judge as a notary. Moreover, a survey of the interference of the court in the administrative affairs of the Diyarbakir province shows that the judge’s jurisdiction was extended beyond the field of law sensu stricto.

Now, after delineating the post and duties of the judge, Aykan focuses in the role the provincial governor played in the field of justice. First, he examines the place of the governor’s council (divan-ı Amid) in the administrative and military apparatus, first in Ottoman history in general, then more particularly both in the town of Amid and in the whole Diyarbakir province; Aykan’s analysis begins with a historical survey of the development of what may be called executive power in an Islamic state, namely that of the ruler, and of its juridical capacities. The author examines the governors of Diyarbakir during the eighteenth century, the duration of their posts, their income and expenses, finally their orders as preserved in the sicils, before proceeding to an analysis of their presence in purely juridical documents, mainly their responses to petitions (arzuhal) of the inhabitants of the province. This analysis shows that the governor had also his share in guaranteeing justice and social peace and that his main role was to execute the decisions made by the judge, but that he also occasionally imposed punishments on his own. Moreover, another figure, an unspecified military official called with the term hâkim-i örf, had also the power to inflict punishments. As a matter of fact, thus, the inhabitants of the province could have recourse to alternative sources of judicial power, including the Imperial Council in Istanbul; the judge and the governor both embodied the Sultanic legitimization.

The second part (pp. 127-213) concentrates on the function of the Amid judge as notary, i.e. his capacity to “certify and authenticate the individuals’ rights in the city” (p. 127). The stress is on the concept of contract as crystallized in the court documents, and to this effect Aykan focuses in the “private” temessüks and the “public” hüccets – in other words documents and more generally contracts made outside the court, on the one hand, and those supervised and ratified by the judge, on the other. The author proceeds his analysis by way of certain case-studies from the sicils, which show that compromises or transactions committed informally were submitted in front of the judge, as the parts involved sought his ratification in the form of an official court document, a hüccet. This procedure is analyzed in detail, with special emphasis on the role of witnesses. Aykan argues that a temessük could be used in parallel with oral contracts as a way of substituting the presence of the witnesses when need arose for an official document to be issued, for instance with a subsequent transaction or the death of the one part. Moreover, the well-known (but little understood) practice of “compromise” (sulh) made use of this type of document. Aykan emphasizes the role of the “just” witnesses (‘udul), which were always superior to the temessüks, the latter being documents issued without witnesses. An important point here is that documents issued by officials other than the judge were also called temessük, and their main difference from court documents was again the absence of witnesses (p. 155). Oral testimony was always essential in transforming such an informal document to a proper hüccet, sometimes even through a “fictional trial.”

Moving now to cases recorded inside the court, Aykan focuses on documents that certify a person’s social status, on the one hand, or his/her right to a property, on the other. The first category includes documents reinstating individuals’ status as honest or, conversely, assuring their wickedness (su-i hal); asserting their absence (or their mental illness) in order for the court to appoint an administrator of their property; certifying their status as freemen (or women), but also appointments of proxies (vekil); and every change of a person’s legal status: deaths, marriages and divorces, conversions, and so on. The second category, including sales or gifts of property, as well as inheritance disputes, all of which were both recorded in the court registers and copied for the interested parts, leads Aykan to examine the sicils as provincial archives: i.e., the fact that the judge’s archives can be seen as archives of the administrative and social life of his province, all the more so because incoming orders, official appointments, tax documents, and petitions were also recorded. These archives were evidently consulted by the judge for the solution of both administrative and “civilian” problems (p. 201). Of special interest is Aykan’s analysis of the court’s scribal service as seen in the sicils (pp. 196-199). In the conclusion of this part, the author also examines the question of whether a judge could annul his own decision, reaching the conclusion that the shari’a offered him a certain flexibility.

In the third part (pp. 214-293), Aykan turns to the third pole of justice, the local mufti and his relation to the Hanefi texts of jurisprudence. As he notes, “it was the town mufti that put into effect [the] dialogue between the doctrine and everyday conflicts” (p. 214). Thus, he first analyzes the madhhab (mezhep) question, since (contrary to the “official” Ottoman law) the prevalent school of the Amid population was the Shafi’i rather than the Hanefi; all the more so, Shafi’i teachers (müderris) were appointed accordingly by the central government, while even Shafi’i judges can be detected. Among other cases as well, the case of a Shafi’i scholar who was a teacher and mufti in Amid, but also seems to have issued legal documents, shows that the (Hanefi) judge could send a Shafi’i litigant to a müderris belonging to the same school in order to act as a judge himself. Aykan studies the careers of the muftis of Amid during the eighteenth century, noting that those of the Shafi’i school were appointed upon request by the inhabitants, and tracks their influence in the court decisions through the sicils. He then discusses in detail the fiqh literature used by the muftis (who, as it seems, tend to use Ottoman authorities rather than classic jurists of the medieval Islam), while stressing the important role of the muftis in cases of disagreement among the jurists (in which case the legal practice tended to favor the Ottoman authorities).

Finally, a specific case shows the interdependence of law and politics: Mamo, a member of the Yezidi heterodox Kurdish community, was tried in 1723 for highway robbery and murder. Enhancing his guilt, several witnesses declared that he also was a “habitual criminal” and a “disturber of peace.” However, the fetva issued for his case in order to impose his execution, made reference (reverting to older Ottoman authorities) to the crimes of apostasy and infidelity as implied in his Yezidi status, and also to the Sultan’s right to execute such criminals. With the aid of a lengthy discussion on the Yezidis and the Ottoman attitude against them, Aykan thus reaches the conclusion that the mufti acted as a representative of Sunni orthodoxy in the borderlands of the Ottoman Empire.

In his conclusions (pp. 294-301), the author summarizes his research and stresses once again the collaboration of these three principal actors in the field of justice both in a local and in an imperial context, noting that this means that no satisfactory image of the “judicial history” of a region can be attained lest we take into account social and political conflicts. An Annex (pp. 302-310) contains old photographs of the region and its towns and monuments, as well as facsimiles of some sicil pages discussed in the thesis. The dissertation ends with a rich bibliography (pp. 311-340).

In sum, Aykan’s dissertation is a more than welcome contribution to the study of court registers as a source for the study of judicial functions of Ottoman administration. The document-based approach adopted by Aykan allows for a detailed study of this topic; in fact, a great advantage of the dissertation is the combined use of such an approach together with an emphasis on oral agreements and on extra-judicial documents. His use of neglected sources such as scribe manuals and his distinction between “public” and “private” documents, particularly, could open up new paths for this kind of research. Moreover, the author’s multi-factor approach gives a much deeper and clearer image of the function of the court and more generally of the provincial administration, in comparison to one based merely on the figure of the judge. One may even wonder whether the time for a new synthesis regarding Ottoman judicial practices has come, now that so many studies on particular court registers have appeared; analyses such as Aykan’s may be used as the backbone for such an effort.

Marinos Sariyannis
Institute for Mediterranean Studies/Foundation for Research and Technology, Hellas
Rethymno, Greece
marinos_sar@yahoo.com

Primary Sources

Judicial registers of Diyarbekir, Harput and Mardin in the National Library, Ankara
Prime Ministry’s Ottoman Archive (Başbakanlık Osmanlı Arşivi – BOA), Istanbul
Ali Emiri, Köprülü and Süleymaniye Libraries, Istanbul
İhtisas Library, Diyarbakır
National Library (Bibliothèque Nationale de France – BNF), Paris

Dissertation Information

Ecole des Hautes Etudes en Sciences Sociales. 2012. 340 pp. Dissertation originally written in French. Primary Advisor: Gilles Veinstein.

Image: Heading of the Fetvâ of Ebussuud on Yezidi Religion, Süleymaniye Library, Istanbul.

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