Ottoman Fatwâ : an essay on the legal consultation (ifta') in the Ottoman Empire

^ Ottoman Fatwa ^

An Essay on Legal Consultation

in the Ottoman Empire

By Ali Y aycioglu

A THESIS PRESEN TED TO

THE IN STITUTE OF ECONOM IC AND SOCIAL SCIENCES IN PARTIAL FU LFILLM EN T OF TH E

REQUIREM ENTS

FOR TH E DEGREE O F M ASTER OF H IS l’OR Y

BILKENT UNIVERSITY AUGUST, 1997

V 3 Î ) 1 5 5 4

I certify that I have read this thesis and in my opinion it is fully adequate, in

scope and quality, as a thesis for the degree o f master o f history.

Thesis supervisor Prof Dr. Halil İnalcık

I certify that I have read this thesis and in my opinion it is fully adequate, in

scope and quality, as a thesis for the degree o f master o f history.

Dr. Akşin Somel

1 certify that 1 have read this thesis and in my opinion it is fully adequate, in

scope and quality, as a thesis for the degree o f master o f history.

Dr. Mehmet Kalpaklı

Approved by the Institute o f Economics and Social Sciences.

A BSTRA CT

Legal consultation

{/fla)

is one im portant legal institution in Islam ic legal culture since the consolidation o f the Islam ic law. In the O ttom an em pire legal consultation was carried out by the ch ief m u fti and the appointed provincial m uftis. The provincial m u ftis were academ ic figures; most o f them perform ed teaching in the respected colleges and legal consultation at the same tim e. The m ain functions o f the provincial m uftis w ere to issue fatwas for the private applications o f the people o f th eir loealities and som etim es to give legal opinions to the kadis for com plex problem as legal experts. In th e capital o f the O ttom an em pire, the legal consultation for the private applications was carried out by a bureau,

fetvahane,

subordinated to th e ch ief m ufti. The fatw a departm ent issued fatw a signed by the ch ief m ufti for the petitioners to be presented in their lawsuits. The fatw a departm ent had bureaucratic characteristics in the process o f fatw a-issuance. In the fatw a-issuance, the main function o f the fatw a departm ent was to construct appropriate queries fitting the legal problem exposed by the petitioner. The fatw a had an im portant role in the court procedure, w ith other legal instrum ents. M ost o f the tim e the fatw a was presented by the litigants to support their claim, theoretically. The main function o f the fatw a was to sugge.st appropriate adjudication for the kadi in the litigation at hand. In the court registers it appeared that the litigant holding a fatw a most often w on the suit.

Ö Z E T ^

İslam tarihi boyunca hukuki konsültasyon anlam ına gelen iftâ ’, özellikle İslam hukukunun konsalidasyonuyla beraber, İslam hukuk kültüründe önem li bir yer işgal etm eye başladı. O sm anlı İm paratorluğunda iftâ ’ kurum u şeyhülislam lar ve kenar müftüleri ile yürütülm ekteydi. Kenar m üftüleri çoğu zam an akadem ik şahsiyetlerdi ve m üftülüğün yanı sıra saygın m edreselerde m üderrislik yapm aktaydılar. M üftü olarak en önemli görevleri kendi bölgelerinde yaşayan insanların dini ve hukuki sorulanna yönelik fetva vermek, bazen ise kadıya kimi davalarda bir hukuk uzmanı olarak yol gösterm ekti. İmparatorluğun m erkezinde ise, insanların hukuki ve dini konulardaki so ru ların a y ö n e lik fe tv a verm ek için şeyhülislam ’a bağlı bir büro kurulm uştu. Fetvahane adındaki bu büroda şeyhülislam ların im zasına sunulan fetvalar yayım lanırdı. Fetvahanenin fetva tanzim i ve tebliM bürokratik özellikler taşım aktaydı. Fetvahanenin tem el işlevi fetva alm ak için başvurusunu yapan kimsenin sorusunu uygun bir hukuki üslub ile yeniden kurgulam ak ve şeyhülislam ’m im zasına sunm aktı. Fetvanın Osm anlı mahkem esinde önemli bir işlevi olduğu analşılıyor. Çoğu zam an davalı ya da davacı elindeki fetva ile iddi‘asına teorik bir destek sağlam ak am acını gütm ekteydi. K adılar için ise fetva, önlerindeki davada nasıl hükm verm eleri gerektiğini gösteren bir hukuki m etin niteliğindeydi. Osmanlı kadı sicillerinde fetva ibraz eden tarafın çoğu zam an davayı kazandığı gözükm ektedir.

'^tthâfıye

Babaannem Münire ve Dedem Abdullah Yaycıöglu’nun

aziz hatıralanna ithafen...

•d> Acknowledgments ^

I am deeply grateful to scores o f individuals throughout m y graduate years as a student o f O ttom an history. I w ould like to thank, first and forem ost, m y

hoca

and supervisor Professor Halil İnalcık, who taught m e O ttom an history for three years and will teach in all m y academ ic life. I am also grateful his encouraging m e to study history o f O ttom an legal culture. I am deeply indebted to Professor ö z e r Ergenç who taught me how to read and understand O ttom an sources, particularly court registers. I am grateful to Akşin Somel for his guidance, dervish style, and support during my studies at Bilkent. I w ould specially like to thank Professor W ael Hallaq who has introduced me Islam ic law and personally encourage me to jum p into the onerous sea o f historical-legal studies. I am grateful to Professor Cem al Kafadar who always opens m y horizons during my inexperienced journeys through O ttom an history. Special debts are owed to Professor Seçil Akgün w ho pushed me to shift history from a different discipline three years ago and to Professor Oner Turgay who provided the opportunity to study in the institute o f Islamic Studies at McGill. I w ould like to thank my teachers Engin Akarli, Halil B erktay, Issa B oullata, Cornell Fleischer, Adam Gacek, Nejdet Gök, M ehm et Kalpaklı, Uygur Kocabaşoğlu, İlber O rtaylı, Eyüb ö zv eren , Eric Ormsby, İsenbige Togan and my friends Eftal Batm az, Ahmet Demir, Hülya Canbakal, İklil Erefe, Em re Kayhan, Ertuğrul ö k te n . Şefik Peksevgen, Türker Yöndcm for their guidance and support throughout m y studies. I w ould like to specially acknowledge m y debt to my m other and father Rezzan and A laettin Y aycioglu for their endless support and patience. A nd dear iklil Erefe knows well that this w ork w ould not exist without her.

^ C O N T E N T S ^

A bstract II

Özet III

A cknow ledgm ent V

Table o f C ontents VI

N ote on T ransliteration VII

List o f A bbreviations and Prim ary Sources VIII

List o f Pictures X III

^Introduction·.

Ifta ’ in th e Legal C ulture 1

^ Chapter!'.

The M aking o f MuftT in the O ttom an Em pire 14 1.1 Som e characteristics o f th e O ttom an scholarship

and learned hierarchy in the I6 ‘** and 17*'' cent. 14

1.2. The c h ief m ufti 22

1.3. Provincial m uftis 28

1.4. Conclusion 38

^ Chapter II.

The M aking o f th e F a tw i in

th e O ttom an Legal C ulture 41

2.1. B ureaucratization o f Fatw a Making: Fetvahane 42 2.2. Ebussu'^ûd’s instruction for fatw i-m aking 52 2.3. T extual C om ponents and visual image

o f th e O ttom an F a tw i 58

2.4. Language and Legal Term inology in the O ttom an Fatw a 82

2.5. Fatw a C om pilations 88

2.6. Conclusion 100

^ Chapter III.

Fatw a in th e O ttom an Court 103

3.1. Fatw as in the court registers 104

3.2. Fatw a in th e court procedure 110

3.3. Kadis, M uftis and the Sultan:

the enforceability o f the fatw a 132

3.4. C onclusion 142

^ Conclusion

143

Bibliography 146

Note on transliteration ^

T ransliteration is the surviving problem o f historical scholarship in Islamic studies. In this paper the reader will cam e across w ith a double-usage o f the Arabic and O ttom an transliteration system s in different contexts. The technical term s o f Islamic law w hich have th e sam e m eaning both in Arabic and O ttom an contexts (fatw a, m ufti...) are transliterated according to from -A rabic-to-English transliteration system suggested by

Intem altional Journal o f M iddle Eastern Studies.

In the O ttom an contexts, for the thechnical term s and nam es in O ttom an-Turkish, I have preferred to employ th e transliteration system for the O ttom an Language suggested by E. Bim baum (“The T ransliteration o f O ttom an-T urkish for Library and General Process”

Journal o f the

American Oriental Society,

vol. 87 (1967): 122-156). W ords that appear in English dictionaries (sultan, kadi) are not transliterated unless they appear as a part o f an individual’s name.

List of Abbreviations

Ankara

siciJA

Ankara court registers housed in N ational Library, Ankara.

“^Ata’I:

Hada *ik ul-haka ’ik fT tekim let iş-şaka ’ik

I stanbul, 1268;

al-'^Ayntabi: M uham m ad FiqhT al-'^Ayntâbî.

RJsâlab f i Adâb al-muâL

Ms: Library o f Dil, Tarih ve C oğrafya Fakültesi, Ankara, İsmail Saib 757.

Barkan, Ö. L .(1943):

XV. ve KVhncı Asıslarda Osmanlı İmparatorluğunda

Zirai Ekonominin Hukuki ve Mali Esasları,

Vol. 1:

Kanunlar, \sXQ.rki\x\,

1943.

Behcet ül-Fetava·.

Yenişehirli ‘^Abdullah Efendi (d. 1 1 5 6 /1 7 4 3 ^ ) .

Behcet ül-

Fetâvâ.

İstanbul, 1266/1849.

Brockelmann: Brockelm ann, C.

Geschichte der arabischen Literatur,

2 vols. Leiden, 1943-9; Supplem ent, 3 vols. Leiden, 1937- 42.

DlA\

Diyanet İslam Ansiklopedisi.

Istanbul,

1990-Dede Cöngi: K em alüddin İbrahim b. Bahşi.

Siyaset-i Ş e fiy y e

Tercümesi

Ms: Istanbul M üftülüğü K ütüphânesi, no. 2226, f. lb-41a.

Düzdağ:

Şeyhülislâm Ebussıuıd Efendi Fetvaları Işığında 16. Asır

Türk Hayatı,

ed. M. E. Düzdağ, İstanbul, 1983.

E b u s s u ^ ^ u d , E b u s s u ' ^ u d el-‘^İmadı.

Fetva-yı Şerife.

Ms: Süleym aniye K ütüphanesi, R eşid Efendi, no. 1036, f. 33b-37a.

E I‘:

The Encyclopaedia o f İslam,

T’ ed. Leiden, 1913-38.

EH:

The Encyclopaedia o f Islam,

2"" ed. Leiden, 1954

F eta va -yı^'A ta u Ila h E fen d i

M inkarızade Y ahya Efendi,

Fetava-yı ‘AtauUah Efendi.

Ms: M cG ill U niversity Islamic Studies Library, Ms: 56, 169.

Fetâvâ-yı E bussif üd.

Ebussu'^üd el-'^îmidT.

Fetâvâ-yı

Ebussdud.

Ms: Süleym aniye K ütüphanesi, Yeni Cam i 624.

Fetava-yı Feyziyye.

Seyyid Feyzullah Efendi, (d. 1115/1703).

Fetvava-yı

Feyziyye.

İstanbul, 1266/1845-50.

Fetava-yı Yapıştırın s.

Fetava-yı yapıştırma.

[An album o f original fatw as from various m u ftis] Ms: Süleym aniye K ütüphanesi, Fatih 2419.

Fetva Eminlerine Tenbıler:

Ebussu'^ud Efendi.

Fetva Em inlerine Tenbıhler.

Ms: Süleym aniye Kütüphanesi. Hacı B eşir A ğa 656: f. 240a-b;

Hezarfenn: Hüseyin H ezarfenn.

Telhis ül-beyan fi kavanın-i A f i

‘^Osmân.

Ms: B ibliothèque N ationale, Paris, MS. A .f turc 40.

H irz ül-müluk:

H irzü’l-müluk,

in

Osmanlı Devlet

Teşkilatına Dair

Kaynaklar,

ed. Y. Yücel, Ankara: TTK , 1988: 145-207.

Horster. Horsier, Paul, (edition and introduction).

Zur Anxendim g

des Islamischen Rechts im 16. Jahrundert: Die Juristichen

Derlegungen (M a‘rüzät) Des Schejch ü ’Islam E bü S u ‘üd

(gest. 1574) Herausgegeben, übersetzt und Untersucht.

S tuttgart, 1937.

al-jidi: al-Jidi '^Umar.

Muhadarat fi Tan kh al-madhhab al-Maliki.

Rabat, 1987.

lA.

İslâm Ansiklopedisi.

Istanbul,

1940-Ibn Khaldun: Ibn Khaldun.

The Muqaddimah,

trans. F. Rosenthal, 2'“^ ed. Princeton, NJ, 1967.

Ibn al-Salah: Taqi al-D in “^Urnar b. “^Uthman ibn Salah.

Fatawa wa

masä’il Ibn Salâh,

ed. ‘^Abd al-Mu*^!? Q a^aji. 2 vols. B eirut, 1986.

IJMES.

International Journal o f M iddle Eastern Studies.

‘^îlmiyye Salnamesi.

Kashfal-zımün:

C f,

Ilm iyye Salnamesi.

İstanbul, 1334/1916.

Kâtib Çelebi.

K a sh f al-zımün.

ed. Şerafeddin Y altakaya and Kilisli Rifat Bilge, 2 vols. İstanbul, 1941,1943.

Mizan ul-hakk.

Kâtib

Ç

q

\

q

\

â

. M ızanu’I-hakk iT ih tiya ril-ahakkAsizíñhvX,

1280/1863.

Miütaqa:

al-Halabl İbrahim .

Multaqa al-abhur^

B ulaq 1265/1848-49.

M ühimme Defterleri (MD):

Ms: Prime M inister Archives, Istanbul.

al-Nawawi,

A dak

Adab ai-fatwa wa*l-muftt wa’l-mustafU,

ed. Bassam al- Jänl, 2“^* ed., Beirut, 1990.

al-Nawawi,

Majmif·.

al-N aw aw i, Yahya b. Muhyi al-D in.

al-MaJmif: Shark al-

Mühadhdhab.

12 vols. Cairo, 1925.

d ’Qhsson: I. M ouradgea d ’Ohsson.

Tableau général de TEmpire

ottoman.

3 vols. Paris, 1787-1820.

‘ OsmanlI m ü ’ellifleri: M ehm ed T ahir Bursali.

‘Osmanli M ü ’ellifieri.

3 vols. Istanbul, 1333.

al-Ramfi: al-Ramfi, K hayr al-Din.

al-Fatawa al-Khairiyya li-N a f al-

Bariyya.

B eirut, 1974.

Raşİd: Raşİd Efendi.

R a ş id T a rih i.

Istanbul, 1284/1867-8.

Selle: Selle, Fredrich. (edition, translation and introduction).

Prozessrecht des 16. jharhunderts im Osmanischen Reich

a u f Grund von Fetwas der Scheichülislam Ebiissuud und

anderer unter der Regierung des Sultans Suleyman des

Prächtigen.

W iesbaden, 1962.

Siciîl-i

‘^OsmanT: M ehm ed Süreyya.

SiciIl-i Osmani: Osmanh ünlüleri,

ed. N. A kbayar İstanbul. 1996-7. (First ed. 1308/1890-1)

Şerh-i Multakar.

M evkufatı, M uham m ad,

Şerh-i M uItaka’a^I-ebhur.

Ms: M cGill U niversity Islam ic Studies Library, Ms: 132.

Şeyhi: M ehm ed Şeyhi Efendi.

Vakâ’f ül-fuzelâ\ 2

vols. Ed. A bdülkadir ö zcan . in

Şakaik-ı N u ’maniye ve Zeyilleri·. 21'^

and 4*** vols.:

Vekayiü’l-fudalâ.

İstanbul, 1989. A

Taşköprızade: *^Işâmüddrn A hm ed b. M uştala b. Hâlid known as Taşköpnzâde (d. 968/1561).

Sbaqa’iq al-nıfm âniyya f i

^ulama’al-dawlat al-‘Uthmâniyya,

Bulak, 1299.

LIST OF PICTURES

Picture 1 {^.\61)’film iy y e Salnamesi, p. 360 Picture 2 ilw iy y e Salnamesi, p. 365 Picture 3 (pA69):^flmiyyeSalnamesi, p. 368 Picture 4 (p. llO yfilm iyye Salnamesi, p. 394 Picture 5 (p.l71 yfİlmiyyeSalnamesi, p. 378 Picture 6 (p. 172 ): *"İlmiyye Salnamesi, p. 394 Picture 7 (p.l7 2>yAİlmiyye Salnamesi, p. 380 Picture 8 {yiAl^yAilmiyye Salnamesi, p. 358 Picture 9 (p. 175 y^llmiyye Salnamesi, p. 324 Picture 10 (i^A16yilm iyye Salnamesi, p. 338

Picture 11 (p. 177):Anonymous Fetva mecmıİası in Eftal Batmaz’s private library. Picture 12 (p. 178 ):Anonymous Fetvim ecm ifasi in Eftal Batmaz’s private library.

Picture 13 (p. 179 ): Haram collection in Donald Little’s library at McGill University, no. 597. Picture 14 (p.l80 ): jljaram collection in Donald Little’s library at McGill University, no. 701. Picture 15 (p.181 ): Haram collection in Donald Little’s library at McGill University, no. 675. Picture 16 (p.l82 ): flaram collection in Donald Little’s library at McGill University, no. 45. Picture 17 (p.l83 ): "'Ilmiyye Salnamesi

Picture 18 (p.l84 ): Fetvavâ-yı"^Atâ'ullâb,

Picture 19 (p. 185 ): Anonymous Fetva Mecmifasi, in Eftal Batmaz private library. Picture 20 (p .l86 ): Anonymous Fetva Mecmffast, in Eftal Batmaz private library. Picture 21 (p.l87 ): ^İlmiyye Salnamesi

Picture 22 (p.l88 ): Anonymous Fetva Mecmifasi, in Eftal Batmaz private Ubrary. Pictiue 23 (p .l89 ): Fetâvâ-yı Ebussif üd.

Picture 24 (p. 190 ): Anonymous Fetva Mecmifasi, in Eftal Batmaz private library. Picture 25 (p.l91 ): Anonymous Fetva Mecmifasi, in Eftal Batmaz private library. Picture 26 (p. 192 ): Fetvâvâ-yı ^Atâ*ullâb.

Picture 27 (p.l93 ); Anonymous F etvi Mecmifasi, in Eftal Batmaz private library. Picture 28 (p. 194 ): Anonymous F etvi Mecmifasi, in Eftal Batmaz private library. Picture 29 (p.l95 ): Anonymous F etvi Mecmuası, in Eftal Batmaz private library. Picture 30 (p.l96 ):Ankara, sicilh 2/749

Picture 31 (p. 197 ):Ankara, sicili, U169

Picture 33 (p.l99): Ankara, sicilh 1/109

Picture 34 (p.200: Ankara, sidlh H IM (Transcription) Picture 35 (p.20l): Ankara, sicilt 2/226

Picture 36 (p.202): Ankara, sicilt 2/470 Picture 37 (p.203): Ankara, sicilt H M l

Picture 38 (p.204): Ankara, sicilt 2/21 Picture 39 (p.205): Ankara, sicilt 2/1173

Picture 40 (p.206): Ankara, sicilt 8/313 (Transcription) Picture 41 (p.207 ): Ankara, sicilt 2/1110

Picture 42 (p.208): Ankara, sicilt 1/92 Picture 43 (p.209): Ankara, sicilt 2/1702 Picture 44 (p.210): Ankara, sicilt 8/beginning Picture 45 (p .211); Ankara, sicilt 2/1298 Picture 46 (p.212 ): Ankara, sicilt 2/739 Picture 47 (p.213 ); Ankara, sicilt 1/105 Picture 48 (p.214 ): Ankara, sicilt 2/476 Picture 49 (p.215 ): Ankara, sicilt 1/ 255 Picture 50 (p.216 ): Ankara, sicilt 2/746 Picture 51 (p.217 ): Ankara, sicilt 2/1741 Picture 52 (p.218 ): Ankara, sicilt It 695 Picture 53 (p.219 ): Ankara, sicilt 2/754

Introduction

i f t â ’ İn Islamic legal culture

“A sk the people o f the Book, i f you know not

” The Koran, 16/43

I

n Islam ic legal culture legal consultation was perform ed by th e jurist who issued a legal opinion in order to find the appropriate judgm ent for a particular problem asked by an individual. In Islamic term inology the perform ance o f the legal consultation is called

iü â ’

) or

futya

the opinion issued is

fatwa

the person requesting a fa tw i is

m ust aft

the person w ho issues a fatw a is

m u ftr{ ,J ^ )

and the literature about the principles regulating the relationship betw een the m ufti and the m u staftl is called

âdâb al-m ufti

In Islam ic law, since there was no legislative power in principle, the prescriptions o f law were to be discovered from the textual sources, the Koran and the prophetic traditions

{Sunna).

The scripture and the Prophetic traditions, however, do not specify th e laws, but only prescribe some rulings

{ahkâm,

pi.

hukni)

and indications

{dalâüt

or

amârât)}

U nder the light o f these rulings and indications, the jurist

{mujtahid),

by analogy

(giyas)

and by regarding the consensus

{ijm S^,

tried to discover the determ ination o f a particular case at hand

{ijtibâd).

If a sim ilar case, however, had

been precedented (/& /; pi.

furü^

by a great ju rist before, then, this previous adjudication w as to be follow ed

{taqiTd)

by the later ju rists

{muqallid).

Ifta’ is carried out w ithin th is jurisprudential archetype o f th e Islam ic law. The i ñ i ’ perform ance was in itiated by a questioner asking a legal or m oral problem to the m u ñ í. The m u ñ í investigated th e problem under his interpretations o f the abstract rulings o f prim ary sources

{ijtihäd)

or under th e adjudication o f th e earlier ju rists for sim ilar problem s

{iaqlfd)?

Em ploying the jurisprudential tools,

ijtihäd aná taqlrd

th e muftT suggested an appropriate ruling for th e problem.

There were im portant differences betw een the judiciary

(qadä^

and th e legal consultation

{iñá^.

A lthough both w ere interpretive perform ances o f a legal problem w ith jurisprudential tools, w hile th e judgm ent o f th e kadi

{hukm al-qadt)

was binding, fatw a was merely an inform ative interpretation o f th e case. The task o f the m ufti was not to execute a trial for a particular case and judge it, but only to analyze the legal problem atic asked by the questioner and suggest a ruling for it. Professor M essick puts forward;

For a m ufti’s questioner, obtaining a fatwa is an ‘’informational” step, taken either to regulate the individuals, not in adersial pairs; posing a question to a mufti and receiving is response is not a judicial procedure like that in a judge’s court. Without being binding yet authoritatively, a fatwa simply provides the fatwa seeker with a legal rule relevant to the matter in question.“*

^ Ibid: 4-5.

^ Reinhart. “(1993); 7. “* Messick. (1986): 103.

A lthough both th e judgm ent and the fatw a, w ere based upon the problem s o f social reality, instead o f hypothetical interpretations, while th e judgm ent was given for only a particular case at hand, the fatw a reflected a general abstract ruling for any case w hich has the com parable legal problem atic w ith the one exposed in the fatwa. In Pofessor H allaq’s words:

...the fatwa was not merely an ephemeral legal opinion or legal advice to a person for immediate and mundane purposes but also an authoritative statement of the law that was considered to transcend the individual case and its mundane reality.* *

W hile th e ifta ’ encom passes all aspects o f Shari'^a, not only th e legalistic concerns but also moral dealings and m atters about religious observances, the judiciary was lim ited w ith th e legalistic issues. Ifla ’ could be pertaining to any problem o f people in- public and private life, w hereas the judgm ent is restricted w ithin the public sphere.^ Finally, w hile the judiciary was supervised and m onopolized by the governm ent delegating the judges (kadi), to perform ifta ’ there was no need for any official or formal certification. It w as rather a thoroughly religio-academ ic perform ance whose requirem ents w ere associated w ith academ ic capability and truthfulness.^

The roots o f ifta ’ appeared w ith th e dem ise o f th e Prophet and th e term ination o f revelation. In the absence o f the Prophet, G od no longer w ould com m unicate w ith the believers through his messenger. The M uslim s found them selves apart from the voice o f God and th e guidance o f M uhamm ad. His Com panions, after th e dem ise o f the Prophet,

*Hallaq.(I993): 34. *Reinhard.(1993): 14-16. ’ Powers. (1993): 92-93.

were considered as th e ones w ho could best prescribe the rules o f Islam. These Companions, by th e later sources, w ere envisioned as the first m u ftis w ho inherited the lawmaking function in th e absence o f the prophet.

As the generations passed away, the M uslim s gradually cut o ff from the guidance o f th e Companions. N evertheless gradually some literate M uslim s

i^ulam a^

appeared to dedicate their life to th e safekeeping and exam ination o f Islam ic know ledge

Uni)

in different centers o f Islamic world, M ecca, M edina, D am ascus, th e Y em en... These scholars, w ho were the early m uftis, gradually becam e intellectual figures w hom Muslims directed th eir questions about the proper Islam ic behaviors and problem s occurring in their everyday life. ^

W ith th e anthologizing o f th e corpus o f prophetic traditions

{hadJtU)

by the third/ninth century, the basic characteristics o f Islam ic jurisprudence w as form ulated and synthesized by th e industrious perform ance o f the private jurists.*® T he science o f jurisprudence progressively transform ed from a predom inantly oral and socially diffuse

informal process tow ards a com plex literary discipline.*' The ‘^ulama’ professionalized and legal science becam e much m ore expurgated and system atized. In this period basic schools o f law

{madhhab)

had shaped and the scholars cam e to issue fatw as for the questioners in the fram ew ork o f th eir schools’ m ethodological and substantive

* Ibid: 86-7; Masud, Powers and Messick. (1996): 6-7.

’ Schacht. (1950): 190-213; idem.(1964):29-36; Tyan. (1960): 83-90; Masud, Powers and Messick. (1996): 7-8.

Schacht. (1950): 321; idem. (1964): 57-68; Anderson. (1957): 15, 18-21. " Calder. (1993): 165.

1 9

indoctrination. W ith th e consolidation o f th e authoritative tex ts o f the legal schools in jurisprudential m ethodology

{usul)

and substantive law

{m utun)^

gradually the fatw as o f th e famous ju rists cam e to be com piled by th eir follow ers.'“* Each com pilation was identified w ith a particular legal school.'*’ Successively, the professional qualities, skills and moral standards o f th e jurisconsulship in different legal schools w ere constituted.'^

W ith the em ergence o f the fatw a com pilations as a distinct genre in legal literature, legal consultation began to play an im portant role in th e judiciary.'^ The legal doctrines, most o f the tim e, encouraged th e kadis to consult w ith th e legal experts before issuing their decisions, especially in com plex, peculiar and intricate cases. The fatw a com pilations were very practical legal handbooks, in the form o f

responsa,

for the kadis in th e judiciary perform ance. U nlike th e theoretical and hypothetical character o f the law m anuals, the fatw a com pilations offered a num ber o f legal opinions for the

18 problem s that m ight take place in everyday life.

The m uftlship em erged as a inform al occupation o f the civil society, as a self- governing practice autonom ous from the political a u th o r ity .W h o e v e r had adequate

' ' Jackson. (1996): 73-81; Makdisi, G. (1984): idem. (1985). Wheeler. (1996).

''' Hallaq. (1994).

Masud, Powers and Messick. (1996): 10-11.

The most comprehensive studies on

ddab al-muitr

literature see: Masud. (1984); Calder. (1996); Jackson. (1992). See also al-'Ayntabi and al-Nawawi,

adab.

Masud, Powers and Messick. (1996): 10. Johansen. (1993a): 32.

” Schacht. (1964): 74; Makdisi, G. (1981): 199; (1984): 236; idem. (1985): 86-7; idem. (1990b): 130; Goitein. (1968): 211; Calder. (1993): 165; Jackson. (1996): XVIO-XIX; Weber. (1978): 798-99, 821.

intellectual capacity and piety

{taqwa)

had the w arrant to deliver legal opinion. The charism atic jurists, by their public reputation and respectability among their colleagues, carried out the m ufliship w ithout any political certification. A fter their establishm ent, the legal schools functioned as autonom ous professional guilds in which the doctors o f Islam ic law had the authority to profess their legal opinions w ithout any endorsem ent from any higher religious or political officialdom . The licenses to teach and to profess opinions were postulated by the professional guilds which were independent from any ecclesiastical hierarchy or any system o f authority institutionally higher than that o f individual scholars. Intellectual production o f Islam ic law was based on the personal perform ance o f the individual jurists instead o f an officially institutional erudition. Ibn Khaldun says

' ...all the conclusions and views [of a doctor of Islamic Law] continue to be something in the mind...in all their intellectual activity, scholars are accustomed to dealing with matters of the mind and with thoughts.''

Owing to this particular epistem ological nature o f Islam ic law, it has been identified as a “jurist law”^^ and the production process o f Shari'^a as “Shari'^a from below .”^'*

How ever w ith th e consolidation o f the Islamic governm ents, some m uftis becam e m em bers o f the judicial adm inistration, and ifta’ could not escape from

Schacht. (1964): 74. Makdisi, G. (1990b): 120. Ibn Khaldun: vol. 3: 309.

Schacht. (1964). The identification o f “jurist law” seems to be borrowed from the evaluations of Roman law. See Schiller (1958): 1226-1232.

acquiring a political and official c h a r a c t e r . F r o m the ‘^Abbasid (750-945) period onwards some legal experts cam e to issue fatw as at the request o f the caliphs, sultans and em irs. Som e o f them were entrusted w ith serving as legal consultants for local

'2.1

governors and kadis. Through the progressive establishm ent o f th e sehools o f law and the com plication o f the scienee o f jurisprudence, the governm ents eam e to establish permanent posts for the muflTship, sim ilar to the office o f judges, to issue legal opinions for the political decisions w ith the prescriptions o f th eir legal schools. G eorge M akdisi w rites that;

Properly and legitimately used, fatwas of muftis exercised great influence over the actions of the sovereign. For this reason, the sovereign always tried to attract muftis into his camp to use them to his advantage, and to silence the refractory among them.

The mufti was the product of education privately endowed. Fie owed nothing to sovereign power as such. Fie could interpret the religious law independently of the sovereign power and even in his own madhhab. He was alone responsible for his legal opinions, and his responsibility was to God. But sovereign power finally succeeded in creating a post tor the mufti and placing him in its pay.“’

The Islam ic governm ents gradually lim ited the academ ic freedom o f the Islam ie learning and began to patronize the scholastic centers,

madrasas,

in w hich the Islamic

Masud, Messick and Powers. (1996): 4.

Ibn Khaldun. (1958), vol. 1: 453; Masud, Messick and Powers. (1996): 8-9.

For an analysis about the relationship between consultation and political process in the early Islamic states see Mottahedeh. (1993).

27

Masud, Messick and Powers. (1996): 9. Schacht. (1964): 74.

scholarship w as produced.^® The State-patronized m adrasas becam e the essential affiliations betw een the sphere o f Islam ic knowledge and that o f polity. They served not only as centers for graduating the *^ulama’ as m en o f governm ent, but also as instrum ents to control and standardize scholastic production and training.^*

However, in term s o f the legal nature o f Islamic law, th e appointm ent o f m ufti by the political authority did not cause - unlike qada’- a governm ental monopoly o f the realm o f scholarship, i f t i ’and tadrls.^^ The existence o f ofFicially entrusted m uftfs could not abolish the perform ance o f the non-ofFicial, civil and popular jurists. In Islamic cultural tradition, especially am ong the religious idealists, there was a strong tendency to condem n the scholars who had the strong affiliations tow ards the governm ent

{ma^a

suhbatihri-sultan)^^

“ It was generally regarded as inconsistent w ith piety to seek governm ent service.”^"^ In Islamic history m ajor

m ujtahid-m uñh

were civil intellectual individuals rejecting to perform as agents o f a state as typified by kadis, and preferred, instead, to be independent scholars.^' A ccordingly in Islamic legal tradition there w as a strong tendency to separate the positions o f kadi and the m u fti, especially among the religious idealists.^^ The m ufti was credited as being a man o f divine knowledge w ho w as preferred to be autonom ous from any profane power relations and political

Hodgson. (1974), vol. 2; 47-9; Makdisi, G. (1981): 15, 22, 24, 25,...; idem. (1985): 86-7; idem. (1990b): 130.

Hodgson. (1974), vol. 2: 48. Schacht. (1964): 74.

"G oitien. (1968): 205.

Ibid: 208.

Abu Hanifa was the symbolic figure for scholastic autonomy of the jurist. Hodgson. (1974), vol. 1: 255,264, 318, 321, 335, 339.

tem ptations. On th e other hand, kadi w as perceived as a representative o f w orldly authority who was officially appointed by the governm ent. They are inevitably “m ore worldly than m u ftis, both in their responsibilities and in th eir necessary connection to th e coercive... institution o f the state.”^’ The forum o f a m u fti is typified as the m adrasa, the sphere o f divine knowledge, whereas, the realm o f kadi is the m ahkam a, a public forum, “a locus for the coercive exercise o f state pow er.”^* M uftis were supported by th e pious foundations o f the m adrasas in contrast to the profane incom e o f the kadis.^^ In the i d i b literature, the conditions

{shuruf)

for th e m uftlship and th e kadiship were clearly differentiated. W hat characterized a m u fti is not o ne’s affiliations with social and political power relations, but his or her scholarly status, knowledge and probity (

‘adala).

On th e contrary, according to some jurists, even ignorance

ijahl)

and the lack o f moral standards

{fisq)

w ere perm issible for the qada’.“^^ There w as even an inclination to represent the qada’ as an ominous office, especially in the M âliki circles.·^* Some hadiths were transm itted as: “o f three judges, tw o are in H ell” or “he who undertakes the judgeship (qada’) slits his own throat w ithout a knife.”^^ However,

Coulson. (1964); Reinhart. (1994).

Ibid: 14; In the Hadith literature the prophet was made to say that “on the Day o f Resurrection the judge will join the Sultan, but the ‘ulama’ (=muftls) will join the prophets.” Quoted by HaUaq. (1994): 57. Messick. (1986): 110. 39 Ibid: n o . 40 Ibid: 109. Coulson. (1956). Quoted in Messick. (1986): 109.

traditionally, ifta and professorship

{tadrTs)

m aintained an inseparable i n t i m a c y M o s t o f the tim e th e m u ftis also perform ed as professors in the colleges. In the license granted to the scholars, th e functions o f ifta ’ and ta d n s w ere am algam ated as

/Jaгat al-

tadrTs wa ’1-ifta’.^^

D espite these general tendencies o f ifta ’ in the Islamic tradition, there were a num ber o f different practices in different societies. A com parative history o f the ifta ’ institution perform ed in different societies has not been w ritten yet. In W estern academ y, as a m a tte r o f fact, the ifta ’ institution has come to receive th e attention o f legal historians and anthropologists not long ago. N evertheless the valuable legalistic and anthropological works o f the la.st tw enty years, by W ael B. Hallaq“^^, Nissreen Haram·*^, M andaville Marin"^**, M uham m ad Kh. Masud^'^, Brinkley Messick'^^, David S. Pow ers' , Kevin Reinhart “ and others have constituted a substantial literature for the history o f th e ifta ’ in Islamic legal tradition. A recent com pilation edited by M uham m ad Khalid Masud, Brinkley M essick and David S. Powers contributes a lot in

Al-Akwa‘ records a title representing the affiliation o f the two positions:

antahat ilayhi riyasat

al-Gqb wa al-iatwa wa al-tadris.

Messick (1981): 33.

Messick. (1986): 110. Makdisi, G. (1995): 153. Hallaq. (1994) and (1996). Harram. (1996). Marin (1990) and (1996). 49 50 Masud. (1984) and (1993). Messick. (1986), (1990) and (1993). Powers. (1986), (1990), (1992) and (1993). 52 Reinhart. (1994).

this sense.^^ T he w orks in the com pilation m ostly focus on the jurisprudential aspect o f the institutions, in different M uslim societies from the beginning to the m odem times. How ever there is still a serious gap in the literature especially about the dynamic o f legal consultation in different legal cultures at different tim es. The legalistic studies are generally based upon the fatw a com pilations, legal manuals o f th e jurists and

âdâb a¡-

/77ü^/· literature, instead o f original docum entary evidence such as rudim entary fa tw i pieces or court registers. Accordingly most o f the studies are to examine the jurisprudential and doctrinal aspects o f ifta’, rather than its actual status and function in the process o f law-making. The m ain reason behind the overloading emphasis on the jurisprudential and doctrinal aspects o f ifta ’ might be the scarcity o f docum entary evidence for pre-m odern tim es, com pared to the abundance o f doctrinal sources. How ever O ttom an studies provide the historians o f Islamic law w ith a plenty o f docum entary evidence for its legal culture.

In the studies o f the O ttom an legal culture the contribution o f Professor Halil İnalcık is rem arkable. Especially his exam inations o f the relationship betw een the sultanic and religious law highlight the function o f the fatw is issued by the chief m uftis in the process o f Islam ization o f the O ttom an law.^"* Secondly th e contributions o f Uriel Heyd to O ttom an fatw a studies is outstanding. His famous article, “Some aspects o f the O ttom an Fetva”^^ has opened many doors for the legal studies. Especially his zeal to analyze ifta ’ in its practical aspect in the O ttom an legal culture highlights the function o f the fatw a in the O ttom an law -m aking process. Thirdly Baber Johansen’s

Islamic Legal Interpretation: Muftis and their Fatwas,

Cambridge, Mass, 1996. İnalcık. (1950), (1958b), (1969), (1975), (1987); (1992a).

contributions deserve to be m entioned. Especially his com m ents on th e social role o f ifta ’ in m odifying th e established law w ith th e vibrant social conditions in the O ttom an ages are very m uch beneficial for broader historical analyses.^*^ U nfortunately, however, he has not consulted the O ttom an-T urkish sources. Fourthly the contributions o f Colin Im ber in the last 15 years should be m entioned. His micro studies on different aspects o f the O ttom an Law and em inently on the ifta ’ institution contribute to the O ttom an

CO

jurisprudential studies. A lthough R ichard R epp’s scrupulous study.

The M u fti o f

Istanbul: a Study in the Development o f the Ottoman Learned Hierarch^^,

provides a system atic elaboration o f th e biographies o f the O ttom an c h ief m uftis and characteristics o f th e learned hierarchy, it rarely discusses any legal point o f view and lim its itself w ithin th e social and political dim ension o f the learned circles. In th e studies on the court registers tw o nam es should be m entioned Richard Jennings^® and Haim Gerber. R ichard Jennings, in his esteem ed w ork on Kayseri, Trabzon and Cyprus court registers, exam ines the legal functions o f the fatw a in the O ttom an courts procedure.^* On th e other hand, having w orked on the O ttom an court records for m any years, G erber has recently w ritten a com prehensive w ork on th e O ttom an Law one chapter o f which has been dedicated to th e ifta ’ perform ance. Especially his

Heyd. (1969a).

Johansen. (1981), (1988) and (1993).

Imber. (1981), (1982), (1992), (1993), (1994a), (1994b) and (1996). I have not had the opportunity to read his recent book

Ebussu ‘ud,

(1997).

59

Repp. (1986).

^ Jennings. (1978a), (1978b), (1993). Idem. (1993).

em ploying anthropological tools in his exam ination gives the w ork an interdisciplinary perspective.

The present study is to handle the legal consultation in the O ttom an legal culture in a particular period, nam ely 16*'’ and 17"* centuries. I will try to cover three different aspects o f ifta’ nam ely (i)

the m aking o f the m uñí,

(ii)

the m aking o f the fatwa

and (iii)

the function o f the fatwa in the Ottoman court.

In the first part both the ch ief m ufti and the provisional m u ftis in the Em pire will be analyzed. In this section the problem o f scholastic autonom y will be discussed w ith the indications o f th e m u ftis’ affiliations w ith the central authority. In the second part th e characteristics o f the fatw a production in the O ttom an legal culture will be scrutinized. I will especially exam ine the working o f th e fetvahane, the form alization o f fatw a-m aking and textual, linguistic and stylistic characteristics o f the O ttom an fatwa. In this section I also briefly exam ine the legal and codicological characteristics o f the fatw a com pilations. In the th ird section the function and the status o f the fatw a in the O ttom an court will be analyzed under the light o f some em pirical indications. I will especially elaborate some proceedings selected form A nkara court registers o f th e late lb*** and early 1?"* centuiy.

Throughout m y exam ination, instead o f m aking jurisprudential analyses, I will investigate th e i f t i ’ institution as a legal instrum ent in a particular legal culture and in a lim ited tim e period. In this respect the cultural environm ent in which the legal consultation to o k place, the process o f fatw a-m aking and the function o f the fatw as in the O ttom an judiciary procedure will be scrutinized. Doing so, I w ill try to catechize the institution not as it was expressed in the m anuals, but as it was in practice.

C hapter One ^

The Making o f mufti in the Ottoman Empire

“And He knows more than any scholars. ”

The

Koran,

12/76.

“Müftilerün birsöziiki olmaya”

Zâtı

T

he purpose o f this chapter is to analyze som e characteristics o f th e O ttom an jurisconsults, th e şeyh ül-İslâms and the provincial m u ftis

{kenar müñlleri),

and their roles in the O ttom an legal culture. The O ttom an jurisconsulship may be scrutinized in the framework o f the O ttom an scholarship and th e learned hierarchy. Accordingly, before hand, basic characteristics o f th e O ttom an learned hierarchy will be analyzed. In th e second section the ch ief m uftis, in th e third section the provincial m uftis will be exam ined.

1.1. Some characteristics o f the Ottoman scholarship

and learned hierarchy in the

and 1

centuries

The Ottom an learned hierarchy w as one o f the most prestigious social status in the Ottoman Em pire.

‘^ÎİmTye

career, for an O ttom an individual w ho was not from a noble m ilitary fam ily, was the only line to ensure social prestige and exem ption from taxes.' Professor İnalcık states;

An

‘ilmiye cweet

as the only way left for a Turk o f

rd iy ä

origin to climb on the social ladder and thus share the privileges of the military class in the

Ottoman Empire, when in the sixteenth century, the ruling group’s monopoly over the positions of power became more rigid than ever, as a logical evolution of the political system...Since the

‘ilmlye

career brought social prestige and many advantages, including exemption from taxes the high echelons of the military class sought the ‘//m/yecareer for their sons.^

In the lb*** and 17‘** centuries O ttom an Empire, the prim ary education for a child started w ith th e instruction th a t was received at hom e and his close neighborhood.^ The sons o f th e *^ulema’ fam ilies were m uch more advantageous than those o f the ordinary families, since they w ere more fam iliar w ith the scholastic environm ent and perhaps they started to learn Arabic language under the supervision o f th eir parents. Piram ary education, how ever, docs not seem to have gone beyond learning to read and write.^ A fter the prim ary education, the student entered one o f the low -ranking m edreses

{medaris-i rcsmryc,

w ith a salary o f 20 to 40 ak9as), most o f the tim e in th eir provinces.^ D uring the first years in the m edrese, the fellow

{sühté)

becam e fam iliar w ith the elem entary w orks o f Islam ic scholarship in theology and rhetoric.^ From th e low-ranking medreses, the fellow w ould continue to m edreses o f higher levels in bigger cities, preferably those in Istanbul. “At each stage o f his studies, a student had to obtain a certificate

{tezkire

or

temcssük)

from the professor under w hom he studied.”^ The fellow, after com pleting different m edreses from different ranks, entered a sultanic

^ Ibid.: 258.

^ Fleischer. (1996): 17-23. Uğur. (1986): xxxvii.

^ Uzunçarşılı. (1988): 55-59; Uğur. (1986): xxxviii.

*’ For a long discussion about the courses taught in the Medreses see: Uzunçarşılı. (1988): 20-31. Mnalcik. (1988): 256.

m edrese, either Şahn or Süleym anıye in th e status o f

daniş-mend}

Sultanic m edreses w ere th e last stage in graduation, and after a fellow com pleted his studies in these colleges, he becam e qualified to proceed either the teaching

{tedns/tadns)

or judiciary

{kada’/qada^

career. To be appointed, the fellow, first, recorded his name into the registers

{rüznâmçe)

clutched by th e

kadi^asker

o f Rümeli.^ How ever in order to be appointed, the fellow had to be certificated by an individual o f high rank in the learned hierarchy. This certification o f the fellows by high ranking individuals was known as

mülâzemet. A

danişm end, in order to have his certification, was expected to serve as assistant

{m ifid)

under the supervision o f the senior jurist who w ould grant the c e r t i f i c a t i o n .T h i s period between the graduation and receiving the certification was known as

nevbet}^

In the mid lö*** century the standards o f the m ülâzem et system were

' 19

clearly established. In the regulations about the learned hierarchy, the capacities o f the high ranking offices to grant the m ülâzem et for the fellows w ere clearly defined. For a candidate, however, it w ould be advantageous, to get his certification from someone o f greater influence, preferably from the şeyh ül-İslâm.'^

A fter receiving his

mülâzemet,

the fellow was appointed w ith a sultanic diploma

{Beraif^

and entered into th e O ttom an learned hierarchy, either through academic or judicial career lines

{manşıB).

The graduates were expected to m ake tw o different *

* Repp. (1986); 41. Mnalcik. (1988). Uzunçarşıh. (1988): 45-53. " Ibid.: 46-48. ‘^Ati'i; 184; Repp. (1986); 51-53. Uğur. (1986): xliv.

choises. First o f all a fellow was expected to choose the area he preferred to w ork in, w hether the European or Asiatic parts o f th e empire. Secondly he decided w hether he preferred to be a kadi

{tarik-i kadâ*)

or a müderris

(ta n k-i tedris).

T he medreses and kadi offices, in the central lands o f the empire, were ranked hierarchically according to the fixed daily revenue for each rank. For the graduates, it was m ore preferable to begin their career through the academic line as muderrises in the various grades o f medreses. If a scholar shifted to the judicial career from a higher rank m edrese, he w ould start his judicial life again from a higher level.

In the academ ic line, a young professor

âlini)

began his career from m edreses w ith salary o f 50 akças per day

{ibtida’-yi baric).

During the first years in his career he elevated different ranks o f medreses,

hareket-i baric, ibtida’-yi dâhil, hareket-i dâhil,

m ûşıle-i Şahn

and

Şalm.

In spite o f the hierarchy in the ranks, the m edreses o f these ranks had m ost often fixed salary o f 50 akças per day.’^ A fter com pleting the Sahn, th e scholar would proceed on the medreses o f the SüleymânTye com plex, starting from th e posts with the salary o f 60 akças per day. The grades in Süleym anıye com plex w ere

İbtidâ’-yı altmışlı, H areket-i altmışlı, M ûşıle-i SüleymânTye, Hâmiş-i SüleymânTye,

SüleymânTye

and

Dâr üI-hadTs

o f the SüleymânTye.*^

Uzunçarşıh. (1988): 77, 87. Repp. (1986): 55.

Ibid.: 55.

Uğur (1986); xlvi. ** Ibid.: xlviü.

The gradation o f the colleges w ere determ ined in term s o f their patronage characteristics. The most high-ranking colleges

{dâhil)

were those patronized by the sultanic fam ily, w hereas the low er-ranking colleges

{hâriç) y/ere

those founded by private individuals, fam ilies o f pre-O ttom an rulers and O ttom an officials. Through th eir careers, th e professors were continuously dism issed and appointed to different m edreses for short tim e periods.

M ost o f the tim e, a professor com bined an extra office, such as the post o f preaching in Friday prayers or private tutorship to the some families. Some medrese professors seem to have also functioned as

fctvâ em m i

(supervisor o f the fatw a departm ent) to the şeyh ül-İslâm or

tezkTreci

(private secretary) to the şeyh ü l-îslim or k â d î‘'askers.^^ T he professors were also em ployed by the governm ent occasionally for tem porary offices, for exam ple as an inspector

{müfettiş)

for various purposes. The most prestigious o f th e tem porary offices was th e inspectorship o f th e pious foundations o f th e im perial family. For our purposes, the most im portant extra em ploym ent o f the professors seem s to have been legal consultation. As we will see later, some posts in some m edreses were th e joint-offices by th e mudarrisship and th e muftTship. These scholars w ere authorized as provincial m u ftis to issue legal opinion

{mevzun b i’I-iñá^

for the private applications in their region.

'"R e p p .(1986); 39-41. '' Uğur. (1986): Hi.

Şeyhi (Uğur’s ed.): 103,154,198,590. “ Uğur. (1986); Ivi.

In any stage during his career, a jurist m ight prefer to shift to the judicial career, as a kadi in one o f the adm inistrative unit. One interesting characteristic o f the O ttom an learned hierarchy was the one-way m obility from the academic to judicial career. A lthough the scholars could m ove to the judicial career in any stage o f their academ ic life, after attending the judiciary career, it w ould be hardly possible to return the academ ic career again.^^ The posts o f the kadis, sim ilar to those o f professors, were ranked in term s o f their revenues per day.^^ The higher ranks o f the judiciary post were those known as

m ev/eviyets.

M evleviyets were the judiciary office o f big cities, w ith a salary 300 or more akças per day.^^ The highest m evleviyets were those o f Istanbul, Edirne, Bursa, Filibe (Plovdiv), Sofya (Sophia), Selanik (Salónica), Şam (Damascus), Haleb (Aleppo), M ısır (Egypt), Diyarbekr, Baghdad...“ The kadi offices were carried out in 9 system o f rotation. The offices w ere m ost often lim ited w ithin one or tw o years. T hereafter the kadis were dism issed and they started to wait for another appointm ent

(devroT nöbet).

The highest ranks in the entire learned hierarchy were the kâdî'^askerlik o f A natolia, the kadT'askerlik o f Rum elia and then the şeyh ül-İslâmlık (chief jurisconsulship). In the 16'** and 17* century all holders o f these offices came from the judicial career, although they had taught at various high-ranking madrasas before

See the table demonstrating the mobility from the academic career to the judicial career in İnalcık (1972): 170, table 6.

Uğur. (1986): bci-lxvi. Uzunçarşıh. (1988): 91-99. Ibid. (1988): 95.

shifting to the ju d icial line.^® M ost o f th e tim e after com pleting one o f the SüleymânTye M edreses, they m oved to the judicial line and began their career from a m evleviyet level, as a kadi o f one o f th e im portant cities?^ From Ebussu'^ûd Efendi onwards, most o f the ch ief m uftis cam e from the k id r a s k e r lik o f Rumelia.^^ The şeyh ül-İslâm (or the c h ief m ufti) w as th e m ost prestigious figure in the O ttom an learned circles. W ith th e consolidation o f the m ülâzem et system in th e l5 3 0 s the m u fti ascended to the head o f the entire O ttom an religious establishm ent. In 982/1574, he becam e responsible for the nom ination o f high-level learned posts

{m evleviyets

and

m üd en islih

above th e salary o f 40-akça level), kadis o f th e army, provincial m uftis, public preachers

(hatrb&),

prayer leaders

(imams)

and prayer collars

(müezzlns).

In th e O ttom an Empire the scholarship and the learned hierarchy seem to have been intensely controlled by th e political authority. The essential tool in controlling scholarship was the sultanic patronage o f learning. M edrese education was arranged by the governm ent in term s o f ranking th e colleges in a hierarchy. In th e hierarchy, sultanic m edreses

(dâhil)

occupied the highest ranks. A fellow in order to com plete his education and proceed the academ ic or judiciary career, had to com plete his education through this hierarchy. A fter com pleting the medreses, in a sequence, the fellow encountered w ith a second regulation. In order to be either a teacher or a kadi, he was

^’ İnalcık. (1988): 257. Repp. (1986): 61. Ibid.: 61.

Uzunçarşıh. (1988): 178. Ibid.; 179; Repp. (1986): 293.

expected to receive a certification from a high-ranking jurist. As Professor Repp mentions:

The system o f investing

miilizum

thus developed would seem to have provided the state with a means of controlling both the quality and the quantity of the intake of students into the learned profession. The need for the recommendation of a high-ranking scholar provided a control on the quality of the intake -as long, of course, as the scholar were reasonably honest- while the quantity could be controlled by altering a number of factors, for example, the period at which the regular inve.stiture

(nöbet)

took place, the number of ceremonial occasions on which special investitures might occur or the number of students the holder of any office might invest as

mulazirm.

34

Through his career as an academic or Judicial figure, the fellow was constantly dismis.sed and reappointed by the governm ent w ith the sultanic diplomas. An interesting characteristic o f the O ttom an learned institution was the am algam ation o f the academic life and judicial careers w ithin the sam e system that was regulated by the governm ent. In the O ttom an system , not only the k a d a ’, but also the academic sphere was attached to the bureaucratic apparatus o f the state. There was a system atic m obility from the academ ic career to the judicial line. Both th e teachers and the kadis were th e m embers o f th e same division in th e social system o f th e empire. They were the literati o f the m ilitary class

CaskerJ)

o f th e O ttom an society. N evertheless one can not claim that there appeared no tension betw een th e academ ic idealists and th e ones shifting to the judicial career in th e O ttom an empire. W e know that from the lb*** century onwards, the com plaints about th e abuses o f the kadis occupied an im portant agenda in the O ttom an

public opinion?^ In the lb'** and I?*** centuries’ O ttom an legal culture th e kadis seem to have been perceived as the ones departing from the academ ic enthusiasm and were inclined by worldly temptations.^^ Accordingly some ju rists do not seem to have preferred to move to the Judicial career but rather perform ed as scholars in th eir entire lifes. A fter analyzing general characteristics o f the O ttom an learned hierarchy, now, I will scrutinize the tw o essential ifta ’ offices in the empire, th e c h ie f m uftiship, and provincial ifta’ in m ore detailed.

1.2. The ch ief mufti

The actual office o f the c h ief m uftis, or şeyh ül-İslâm s, besides th eir distinguished position as the head o f th e O ttom an learned hierarchy, was legal consultation. The functions o f the ch ief muflT can be divided into three, (i) he was th e personal muftT/religious advisor o f the sultan, (ii) he was the official m u fti o f th e state affairs, and (iii) he was the m u fti o f the people.

From the beginning o f the office, the ch ief m uftis seem to have perfom ied as personal consultants o f the sultans. A story betw een Yavuz Sultan Selim (d. 926/1520) and his şeyh ül-îslâm “^All C em âli Efendi (d. 932/1525-6) was to expose the relationship betw een the sultans and the c h ief m uftis. A ccording to th e story th e sultan ordered th e execution o f 150 treasury officials whose offence, however, was not m ade clear.

The mufti heard of this and went to the divan where he was greeted with some surprise as it was not cxistomary for the MiiftI to appear in the divan expcept

Karadeniz. (1996).

“...kadılık ider chl-i hükm idi. Zemâne kâdlîan gibi dünyâ-perest olub akça ü alt un cinsine

mahabbet eyleyübyapışmazdı..f

Şeyhi: (Ms: İstanbul Üniversitesi: 3732: f. 72a)

for an affair o f some moment. He was given the chief seat, and word was sent to the sultan o f his desire to speak with him. He was permitted by the sultan to enter alone, and when he had greeted him and sat down, he said:

- The duty of the Müflis

{erbâb ül-fetva)

is to watch over the after-life of the sultan. I have heard that you have ordered the execution o f 150 men, the execution of whom is not lawful under the Shari^a. You must pardon them.”

Selim was angered and replied:

- You are interfering in the affairs o f state (emr

üs-saltanat).

This is not part of your duty.”

‘Ah Cemâli then answered:

- Nay rather 1 interfere in the matter of your after-life; that is part of my duty. If you pardon them, you will have salvation; if not, you will suffer a great punishment.

At this Selim’s anger passed and he pardoned all o f them, .Í7

The c h ief m u fti’s second function was related to the state and public affairs. In th e course o f the lb*"* century, th e m ufti ship o f Istanbul gradually becam e one o f the key positions in th e O ttom an state. The m u ftis cam e to participate actively in political decision-m aking and legislative processes o f sultanic law. In the lb*** century the m ajor attem pt in codification o f th e kânünnim es w as initiated by tw o great c h ief m uftis o f the Siileymanic age, Ibn K em il and Ebussu'^üd.^® These tw o figures, in th e course o f the lb**" century, evinced a great zeal in Islam izing and fixing the O ttom an land law.^^ They form ulated th e Islam ic definition o f state-ow nership o f the land and peasant possession rights.

Quoted by Repp. (1986): 21 l.Taşköprüzade: vol. I, p, 426-9; Mecdl: 305-7. İnalcık. (1969).

D uring th e m uftîship o f Ebussu'üd Efendi (952-982/1545-1574) a num ber o f his fatwSs

{Md^TÛzât)

which were subm itted to Sultan Süleym an th e Lawgiver, were compiled, codified and issued through th e sultanic law."^*^ A ccording to the preface o f the com pilation Şeyh ül-İslam Ebussu‘^üd Efendi had suggested to the Sultan, for the sake o f th e order o f the state and because the ordering o f the affairs o f the realm was necessary, the opinion o f certain great jurists o f the past

(müctehidTıî)

that should be followed,"^* In th e com pilations most o f the fatw is were about the problem s on which there were disagreem ents among the great jurists. Ebussu'^ud suggested the rulings about these disputed problems. According to Ebussu'^ud, the judges w ere forbidden to choose any disputed opinion voluntarily

{hilâfiyâtdan mahcur)

and they were obliged to give their judgm ents in accordance w ith the Sultanic directions.“*^ The com pilation was

Hoster; Selle; İnalcık. (1958b); idem. (1969); idem. (1987); idem. (1992a).

""

bundun akdem merhum şeyh ül-İslâm ve m üfti ül-eaâm ‘^allâme-i zaman ve fehhim-ı âvân

eizal üJ-mevcüd hazret-i mevlânâ ve şeyhnâ Ebussıfüd Efendi hazretleri...sultâa-t zaman ve

zemin-i halife rabb ul-‘âlemin cenâb-ı cennet mekân-ı ferdevs-i iş iyin ebû ül-fetb ve’n-naşr

merhum Süitin Süleymin Hin...hazretlerinenizim< din ü devlet ve intizim-ı ahvil-i memleket

iktizâ itmeğin bifâ m esillde e ’imme-i dinden bıfzı müctehidin...kavilleriyle ^amel olunmak

münisib aldığın ‘arz buyrulub ol m invil üzere "amel olunmağa..”

Horster: 23. For different evaluations and English translations see: Heyd. (1972): 183-4; Repp. (1996): 279-80; Imber. (1992): 181; Gerber. (1994): 88-9.

“M es’ele: B u şüretdehâkim ül-vakt ‘bubuşüşda riviyat ö akvilmuhtelifedir. Ben dahikavl-i

ahar ile "amel idüb sıbhat-i nikâha bükm d iz d ir ' deyü bükm eylese Ş e f an hükmi c i'iz olur

mı? El-cevib: M emnif olıcak cidden c i'iz d^ildir. Z iri' kuzitın vilâyeti şibib-i U lifetin im i

ile icizetinden müsteiaddır. Ve hem eşahh-i akvil ile hükme m e'mUrlardır. Ve biHûyatdan

mabcürlardır..”

Hoster: 29.

sent to the kadis o f the em pire and they w ere ordered by th e sultan to behave accordingly.“*^

In this period the O ttom an c h ief muftTs seem to have contributed a lot to th e religious legitim ization o f political initiatives. Ebussu*^ud issued fatw as for the execution o f ^eyhzade M ustafa in 960/1553 and for proclam ation o f § ey l^ ad e Bayezid as a rebel.“** He also played an active role in the decision to go to w ar w ith th e V enetians over Cyprus in 977/1570.“*^

Recent studies on the Islamic jurisprudence have suggested that the O ttom an ch ief m uftis deserved to be studies in term s o f speculative perform ance,

{ictihad ijtihad)

in the post-classical Islam. Professor Gerber, referring to W ale B. H allaq’s exam ination o f the post classical developm ents o f th e

ictihad^^,

has claim ed that Ebussu^iid should be reinterpreted by the scholars in term s o f his role as

m u cteh id f'

G erber’s suggestion is beyond the scope o f the present paper. How ever, it will be beneficial, in this respect, to recall R epp’s study on Ebussu'^ud. A ccording to Repp, Ebussu'^^ud seems to have been perceived by his contem poraries as a follow er o f th e path o f r a y and

ictihad^^

About the disputed public questions o f th e lb'** century the ch ief muftTs appear to have issued fatw as . To give an exam ple, in th e second h a lf o f the 16‘** century, Ebussu'^ud approved the cash

vak^ {v a k f un-nukud)

w hich w ere w idely established in the O ttom an society. “His reasoning was” , in Professor in alcik ’s words.

Hosier; 23-24. Repp. (1986): 288. Ibid.: 289. Hallaq. (1984). 47 Gerber. (1994): 89.