Download PDF | (The Ottoman Empire And Its Heritage) Başak Tuğ Politics Of Honor In Ottoman Anatolia Sexual Violence And Socio Legal Surveillance In The Eighteenth Century Brill (2017)
301 Pages
Acknowledgments
I am deeply indebted to many people and institutions for their support during the research and writing of this book. Since the completion of my dissertation and throughout the long process of preparing this manuscript, numerous personal, academic, and political transformations have taken place in my life. Many friends, colleagues, and family members have not only witnessed, but also experienced this journey with me and given their wholehearted support. While it is impossible to list all these people, I would like to thank everyone who was with me through this process, whose blessings were so beneficial.
Since this book is a product of my PhD dissertation, my thanks go first to my dissertation committee members. My adviser, Leslie Peirce, is a role model whose impeccable studies on court records inspired me to undertake this project. I am indebted to her for mentoring me throughout the writing of the dissertation as well as the book. My co-adviser, Khaled Fahmy, not only pushed me to further develop my ideas with his thought-provoking discussions and views on rethinking Islamic law, but also provided support at critical points in my studies at New York University. Mary Nolan contributed greatly to this project by providing an inspiring forum for discussions of gender, and offering insightful feedback on the dissertation. Many thanks are also due to my other committee members, Tamer el-Leithy and Suraiya Faroghi for their valuable comments.
I owe a special thanks to Suraiya Faroghi, whose own works inspired me to use the special petitionary registers I rely on in this study, for her consistent encouragement and support to publish the monograph under her editorship with Brill. Her hard work, friendship, and constructive comments drove me to finalize the revisions of the manuscript. I am also grateful to my colleague Bogag Ergene whose challenging and critical questions were incredibly helpful for me in the rewriting phase.
The arguments and the case studies of the current work are stronger and more nuanced—I believe—thanks to his meticulous reviews and his collegial support. Special thanks to Franca de Kort, assistant editor of Middle East, Islam and African series at Brill, who patiently and carefully guided the manuscript through the publication process and supported me when I needed it most. I owe special thanks to Valerie J. Turner for her careful copyediting and efforts to make the text readable. I am thankful to Zeynep Celik Atbas of Topkapi Palace Library for her generocity in deciphering the miniatures I used in the book. I also thank the two anonymous reviewers for their contributions to the advancement of this work.
I have incurred debts of gratitude to many institutions and people along the way. I sincerely thank my colleagues and students in the Department of History at istanbul Bilgi University. My students thought and aided me more than they realize. My colleagues have been living with my “book” and encouraging me to create time while teaching. I am grateful to their support during a year-long academic leave, while I took a post-doctoral fellowship in Berlin to work on the manuscript.
I would also thank to EUME fellowship at Forum Transregionale Studien in Berlin that provided me a peaceful and stimulating intellectual atmosphere to work on my manuscript in 2013-14. The comments of organizers and participants at EUME Berliner Seminars and at the Rechtskulturen workshop organized by Ismail Warscheid during my fellowship contributed tremendously to the rethinking of my work. I could not have completed this research without the help of the archivists and librarians in the Basbakanhk Arsivi and islam Arastirmalari Merkezi (IsaAM) in Istanbul, where I completed my archival research and a significant part of the writing process.
They were generous in sharing both archival documents and their wisdom with me. The international workshop “Eighteenth-Century Crossroads in Ottoman Studies” that I organized with Tolga Esmer and Christine Philliou at CEU, Budapest in 2011 was crucial for some of the arguments in the book; I would like to thank Gerda Henkel and Fritz Thyssen Foundations for their generosity. I learned a great deal from Tolga Esmer, Noémi Lévy-Aksu, Giilhan Balsoy, and James Baldwin with whom I have developed collegial friendships and had the opportunity to share academic panels, workshops, and editorial experience. I am particularly grateful to Burak Onaran for reading most of the chapters of this work and for his endless energy and support in revising this study at the most difficult times.
Perhaps the most impossible thing to express is my deep gratitude and abiding affection for dear friends who served as companions, comrades, advisers, colleagues, and counselors throughout these years. I deeply thank all my “unionist” friends at Istanbul Bilgi University, with whom I went through a contemporary struggle of “law” for unionization and solidarity; all my “feminist” friends with whom I shared the joy of sisterhood and the struggle of feminist presence in academia; all my close “uzaktakiler” friends in Turkey who were occasionally apart in space but never in my heart, even over more than twenty years; and all my New York friends with whom I built another home and solidarity during my doctoral years.
Most of all, I owe the greatest debt to my family; first, to my parents and my sister, Alev, with whom I passed the most difficult times and shared the greatest pleasures of love, encouragement, and faith, and second, to my partner Burak, who showed me what love, companionship, sharing, and zeal to work means, and to my little Giines, who enlightened our lives with his arrival and the path this book traveled through.
Introduction
The eighteenth century has long been one of the most understudied eras in Ottoman history. Due to the domination of the modernization theory in social sciences as well as the Orientalist, monolithic perception of Islam in historical writing, the Ottoman eighteenth-century was perceived as a ghost between the empire’s “golden” and “modern” ages,! and thus it was long neglected in Ottoman historiography. In accord with this perception, up until the last two or three decades, the history of the Ottoman Empire in the seventeenth and eighteenth centuries has been predominantly conceptualized as being in a period of “decline;” this stems either from the view that the empire deviated from the strong, centralized state model? or from the perspective that the Ottoman Empire must be incorporated into the capitalist world economy.*
Revisionist studies have already challenged these conceptualizations. While the economic and political changes that took place in the seventeenth century have been reconstructed as an adaptation and reconfiguration of fiscal and administrative structures,* the theories of “decentralization” and the “age of the ayans’ (local notables)® applied to the eighteenth century have been challenged by studies which claim that the Ottoman state, in fact, consolidated its power and ushered in an institutional centralization by integrating the provincial notables into the fiscal administration through “centripetal” redistribution policies.
Barkey’s study even explained these adaptation techniques as a sign of the longevity, durability, and continuity of the “empire.”’ Tezcan, in his most recent and groundbreaking work, conceptualized the early-modern Ottoman polity between the late sixteenth century and the early nineteenth century as the “Second Empire” because a limited government replaced the patrimonial empire of the previous period and a “proto-democratization” of the administration proceeded in parallel to the development of a monetary economy and more unified legal system.® The challenge to the “decline” perspective brought by these pioneering studies has been nuanced by further studies that decipher, through archival and court records, how this system worked in practice, both in the provinces and at the imperial center.?
A few exceptional studies show that vernacular social groups such as local notables and peasant-mercenaries were becoming much more integrated into the system of provincial government, especially in the eighteenth century, and thus the two groups inevitably merged with each other and into the social and economic policies of the Ottoman state.10 This study on the moral governance of sexuality in mid-eighteenth- century Ottoman Anatolia falls within this revisionist historiography. It aims to bring together the “center” and the “province” as well as “state” and “society” in an analysis of “power” in the mid-eighteenthcentury Ottoman Empire.
It conceptualizes the “state” as a complex formation consisting of multiple centers of power—without a clearly demarcated “center” or “periphery”—and as a “constellation of interlocking institutions”11 in which a variety of administrative techniques were deployed.12 In this sense, the central government can be evaluated as one of the actors in this Foucauldian definition of power.13 Yet, this study departs from most other works on the eighteenth-century Ottoman Empire, specifically through its emphasis on the disposition of imperial power in the socio-legal sphere. Although the above-mentioned studies provide invaluable insights into the political and economic aspects of power configurations in the eighteenth-century Ottoman Empire,14 the institutional and legal mechanisms of governance over the socio-legal sphere have scarcely been studied.15
This study contributes to the existing discussions on empire in the eighteenth century by showing how early-modern power operated in the social sphere as a set of social and legal practices. This book examines the legal encounters between the central government, local kadıs (judges) and courts, and Ottoman subjects, first in order to explore how specific applications of Islamic law constructed sexuality and gender in practice, in the everyday lives of men and women in the mid-eighteenth century. With the premise that the definitions and practices of the “illicit” were constructed within a larger discursive field consisting of a web of legal practices, it aims thereby to analyze legal culture through the interplay of a variety of institutions and legal forces in the mid-eighteenth century.
By juxtaposing the petitionary registers kept for the province of Anadolu with the petitions of the Anatolian people submitted to the Imperial Council, and the court records of Ankara and Bursa, two cities within this province, I analyze the institutional framework of the legal scrutiny of sexual order in mid-eighteenth-century Anatolia. The four years between 1742 and 1745, on which this research concentrates, constitute a snapshot of intense legal and institutional interactions. A bureaucratic and institutional development in the imperial center that happened in 1742 makes this year an emblematic date.
In this year the Imperial Council started to categorize its “petitionary registers”16 according to the major provinces, including Anatolia. This development not only provides a base for the further scrutiny of legal processes in eighteenth-century Anatolia, but also signifies a transformation in the legal and administrative mentality of the imperial state. The diversification and proliferation of the petitionary registers17 as a result of such a bureaucratic transformation in record-keeping practices, which occurred at the same time as a transfer of power from the sultan to the grand vizier’s government, signify a shift in governmental mentality to a much broader view in the eighteenth century.
The Ottoman state’s interest in keeping records of the information gathered through the petitions of its subjects implies a further attempt at scrutinizing society, both legally and socially. By the mid-eighteenth century, this practice enabled the state not only to scrutinize local legal processes within a loosely-hierarchical appellate system, but also to watch provincial society more closely. The year 1742 thus provides multiple avenues by which we can explore the history of sexual order in eighteenth-century Anatolia. First, the categorization of the petitionary registers according to provinces enlarges the borders of the “local,” i.e., from the “town” of the court records to the province, and thus provides us with tool for writing the social history of a region like Anatolia.
It also allows us to see the interactions between different legal institutions and actors, since all of the imperial rescripts recorded in these registers address the provincial judges and administrators concerning the issue at stake. This enables us to analyze the larger institutional framework of the the role of law in the construction of sexual and social order. Finally, these registers reveal the extent to which political power established moral order through its direct involvement in the surveillance and punishment of sexual crimes in the mideighteenth century.
The scrutiny over social order was directly related to the Ottoman state’s anxieties about maintaining public order in the provinces, this arose as a result of the reconfiguration of power in economic, social, and political spheres in the late seventeenth and early eighteenth centuries. The relationship between the central government and provincial social groups was altered as a result of several inter-related changes, including the reconfiguration of the economic structure through tax-farming policies, the establishment of an oligarchic rule in the central administration, and the rise of local notables and dynastic families in the provincial government. The fragmented structure of the new power configuration triggered a vigilant scrutiny of public and social order by the Ottoman state in eighteenth-century Anatolia.
This surveillance was established through centripetal means in order to control the provinces. Sexual crimes, as the emblematic face of disorder, constituted one of the most important subjects of this surveillance. Yet, the mechanisms and technologies of power in the eighteenth century were, of course, different from those of “modern” Foucauldian power.18 In this book, the term “early-modern” is often used to imply this difference. In this regard, I cautiously employ the terms “scrutiny” and “surveillance” alongside “early-modern” in an attempt not to equate forms of power in the eighteenth century with modern forms that crystallized only in the nineteenth century.19 It is important to note that the disciplinary techniques of power, which mainly concentrate on the control of the population, had not yet been established in the eighteenth century in the Ottoman Empire.
This work is, by necessity, a social history of illicit sexuality together with the legal-institutional history of the mid-eighteenth century. We must comprehend the workings of the legal system in the specific period in order to analyze this social phenomenon through legal documents. However, in studies of Ottoman history, legal institutions have received little attention as “distinct social institutions.”20 Throughout Ottoman history, and especially by the mideighteenth century, as I demonstrate in this book, the Imperial Council took on important judicial functions alongside and as a higher court in a loosely hierarchical appellate system.
Yet, its judicial functions, i.e., accepting petitions and hearing and deciding and/or forwarding cases to other courts, have been mostly neglected in Ottoman studies.21 Similarly, until the 1990s, kadı court records were rarely analyzed as distinct socio-legal institutions that could be utilized in order to understand their social, political, and cultural dynamics.22 As a result, there remains a huge gap in our knowledge of the most basic information on the workings of these institutions.
In writing social history the study of legal documents requires not only a well-established database on the workings of these institutions, but also a meticulous awareness of the mediated, fabricated, textual, and therefore constructed character of the legal documents. In other words, rather than being transparent mirrors of reality,23 these legal documents constructed “reality” through their language and their narration of the event, through the power dynamics involved in their production, and through the legal framework in which they operated.24 By focusing on legal practices as a “contested domain” between institutions, society, and individuals,25 the analysis of a social phenomenon such as illicit sex, requires the repeated deconstruction of the legal language, institutions, and actors, as well as the normative legal forces, such as shariʿa and kanun, involved in the production of a legal document. The overlap of these two interrelated aspects in this socio-legal history requires that we have a comprehensive knowledge of the legal settings and that we deconstruct the legal documents themselves.
As my archival research on petitionary registers, petitions, and the court records proceeded, I realized that in Ottoman studies we know very little about the institutional setting in which these documents were produced. The research process proved, for example, that it can take months to understand how someone from Ankara sent a petition to the Imperial Council; and understanding this is necessity before we can analyze why a petition in a sexual offense case was sent to the central government. Furthermore, one also realizes that the question of what “sexual crimes” were or how illicit sexuality was demarcated from the “licit” in eighteenthcentury Anatolia cannot be answered without a thorough analysis of the discourse and terminology used in the various courts (both the Imperial Council and the local courts) in that specific period.
Finally, this study is eager to contribute to the re-conceptualization of Islamic law by incorporating legal documents of the central government, i.e., petitionary registers and petitions, as sources that reveal the socio-legal applications of Islamic law in parallel to the kadı court records. Scholars of Ottoman socio-legal history have so far concentrated on kadı court records and fetvas in order to see “law in practice.” Since the kadı courts have long been perceived as the main and only venues in an Ottoman context in which shariʿa and other legal forces were practiced, the students of court records have been unwilling to enlarge the framework. I hope that the legal-pluralistic perspective26 that this study adopts by treating imperial law and council, imperial registers and petitionary documents as part of the applications of Islamic law will contribute to this re-conceptualization.
This study is also built upon a well-established body of literature that analyzes court practices in their spatio-temporal specificities to assess how gender was contested in areas of social mores and sexuality,27 class hierarchies,28 kinship,29 family, and marriage, divorce, and property relationships.30 However, we still know very little about how sexual and moral order was constructed in practice through various legal and social administrative techniques in the specific historical settings throughout the Ottoman lands.
There are still a mere handful of studies on the applications used to ensure sexual and moral order under Ottoman rule in the various regions and periods.31 The current study promises to enhance our understanding in this field by concentrating on specific forms of legal scrutiny in eighteenth-century Anatolia. Islamic law categorizes any kind of sexual intercourse outside the bond of marriage, such as adultery, fornication, and any sexual assault as falling under the rubric of the all-encompassing and ambiguous term zina, which is defined as a crime.32 Feminist scholars and others have made invaluable contributions by highlighting the gender implications of the ambiguities in Islamic law on the definitions of sexual offenses, and on the notions of consent and violence.
For example, some scholars show that Islamic jurisprudence treats sexual rights as “property” by compensating victims of rape.33 They also highlight the indifference of Islamic law to the notion of consent, especially where illicit sex is concerned.34 They show that this indifference derived from the jurists’ overriding concern with regulating reproduction and determining parentage and sexual property rights.35 Yet, we still know very little about the ways in which these gendered norms were exercised. Given the ambiguities and incoherencies of the definitions of sexual offenses in normative law, it is important to see how these ambiguities were dealt with “in practice.” Although the Ottoman criminal code of Süleyman i in the sixteenth century expanded the definition of sexual crime (zina) by making amendments to the stringent requirements for evidence assigned by Islamic law and by categorizing new sexual offenses, the ambiguities of and the contradictory prescripts for sexual offenses persisted.36
Nevertheless, Peirce’s comprehensive work on the court records of sixteenth-century Aintab demonstrates that incoherencies in penal law opened the door for more flexible interpretations on the part of local judges during the period of empire consolidation in the sixteenth century, when the imperial power was trying to establish and popularize its rather new law court system.37 Yet, this flexible interpretation of criminal law on sexual offenses seems to have led toward intervention and control in the eighteenth century. My study attempts to demonstrate that the ambiguities of normative Islamic law reinforced the judicial and punitive discretionary authority of the imperial political power over both the local courts and sexual and public order in eighteenth-century Anatolia. Clearly, because this book explores public order in Ottoman society through sexual crimes, gender has a crucial place in the socio-legal historical analysis undertaken here.
This study is inspired by feminist literature that approaches gender as “a primary way of signifying relationships of power,”38 where gender categories are considered historical and temporal constructs rather than fixed universals.39 In this sense, it is built upon the premise that the sexual sphere was one of the primary arenas in which social conflicts and power struggles were articulated in the eighteenth century. This study examines legal processes as sites of encounters and negotiations over gender norms between the Ottoman state and its subjects. Normative formulations of illicit sexuality were contested within this institutional framework. Thus, here I tell the story of the institutional history of the discursive construction of illicit sex in eighteenth-century Ottoman Anatolia, more than the story of how Ottoman men and women experienced their sexuality at a certain time or place. To this end, deciphering gender constructions of sexuality goes hand in hand in this project with decoding the legal system in the mid-eighteenth-century Ottoman Empire. Yet, this study still emphasizes experience and subjectivity, and therefore does not adhere to the idea that individual actors are totally concealed under surveillance. Although Foucault’s analysis of sexuality has been groundbreaking in elucidating the way in which sexuality has been disciplined through productive technologies of power in modern Western society,40 his model of bio-power neglects the concept of subjectivity because it absorbs the individual historical actors into a universal social body in which surveillance techniques are inscribed.
Scholars demonstrate how, historically, technologies of power in fact generated resistance in social practice.41 Furthermore, Foucault’s analysis neglects the gender dimension in the discourses on sexuality. Feminist historians also show empirically the way the discursive deployment of sexuality in nineteenth-century Europe contributed to the regulation of sexuality in favor of men with the exclusion of women from the public space through the “myth of rape,” and through discourses on sexual danger.42 In this study, by adapting Canning’s definition of the body, I approach “subjectivity” both as a site of intervention and inscription of power through a legal and moral surveillance of sexuality, and as a site of contestation where gendered subjects encounter, embody, and resist these inscriptions through their experiences of sexuality.43
The silence of the legal documents on certain points gives us some idea about the discordance of and resistance to the legal scrutiny of the sexual order in the eighteenth-century Ottoman Empire. For example, the absence of any regular cases of adultery indicates that there were more personal and communal methods of dealing with this issue. As other researchers have also pointed out, there is enough evidence in the Ottoman court records to show that in many criminal cases, including sexual disputes, people solved their problems through mutual agreement (sulh) or private prosecution outside the courts.44 Even though in the Ottoman legal system local administrators had the authority to inform the court of suspected cases of sexual offenses, it is not difficult to imagine that these administrators might have been incorporated into private solutions outside the court if the community so wished.
As this study demonstrates through multiple instances, the community, as watchman, played an important role in drawing the boundaries of the illicit; without their participation legal surveillance would have been impossible in an early-modern society. With such an awareness of all the possibilities of resistance to legal scrutiny, this study argues, based on a meticulous observation of legal and penal processes, that in mid-eighteenth century Ottoman Anatolia a centripetal politico-administrative jurisdiction of crime and punishment was able to more strictly scrutinize sexual and moral order by employing existing mechanisms of control and by developing new ones.
The social surveillance of sexuality by the community and the co-existing “discretionary authority” of the Ottoman state over sexual crimes were deployed through a relatively newly promoted and more bureaucratized system of petitioning, a more hierarchical judicial review mechanism, and finally, a more centrally organized penal system that enabled the surveillance of and punishment for sexual crimes to be carried out in a closer manner by the state in mid-eighteenth-century Ottoman Anatolia. Within this sexual and moral order, it seems that the “protection of honor” began to dominate the legal discourse on sexuality and morality, and thus redefine the relationship between the Ottoman state and its subjects in moral terms.
Precisely because of its institutional focus, this study concentrates mainly on the interaction between three types of records: The Anatolian Registers of Imperial Rescripts (Anadolu Ahkam Defterleri), petitions of the Ottoman subjects, and the kadı court records of two major Anatolian towns, Ankara and Bursa. I have also enhanced my analysis of the interactions between different legal records by consulting the fetva collections of the mid-eighteenth century and kalʿabend45 registers of the Imperial Council that consisted of imperial rescripts for the imprisonment and/or banishment of those convicted. The series of Anatolian Registers of Imperial Rescripts in the Prime Ministry Ottoman Archives in Istanbul contains one hundred and eighty-six volumes for the period from 1742 to 1889.
These registers are composed of the imperial rescripts written by the Imperial Council addressing the provincial judges and governors in response to petitions and letters concerning disputes and issues of the Ottoman subjects in the Anadolu province. This study examines two volumes of these registers, volumes that cover the period between 1742 and 1744; the first one is composed of 284 pages containing 1,254 imperial rescripts and the second is 292 pages containing 1,248 rescripts. Since a diverse array of issues was submitted to the Imperial Council by Ottoman subjects, these registers are very rich in content and cover a variety of social and economic issues, such as property, inheritance, and debt disputes, as well as various criminal disputes including cases of murder and serious sexual crimes as well as incidents of simple theft and slander. Despite the richness of their content, the petitionary registers of the Imperial Council have scarcely been studied as a whole, either to analyze social and economic history or to explore the judicial functions and relationships of the Imperial Council.46 First, these registers promise to be invaluable sources for the further scrutiny of the functioning of the Ottoman legal system.
They give us invaluable clues on the interaction between the central and provincial governments, since each imperial rescript reveals information about the judicial and administrative authorities in the provinces where the cases originated. Furthermore, as they are relatively more tangible sources compared to the scattered registration of imperial rescripts in previous periods, they constitute fruitful written sources of regional and local history from the mid-eighteenth century onwards. Finally, the rich variety of criminal disputes these sources offer has provided me with an analytical tool for an investigation of the Ottoman state’s involvement in the legislation on and penalizing of sexual offenses.
The only handicap to using these registers is that it is very difficult to grasp the details of the dispute and the imperial orders since they are only summaries of the petitions and the orders. As I discuss in detail throughout the book, the rescript generally forwards the dispute to the local judge for his resolution of the case, often without instructions. Petitions submitted by Ottoman subjects to the Imperial Council are also colorful and exceptional sources of social history. Even though petitions were not drafted by a state official following various stages of mediation and representation, as happens with court records and imperial rescripts, they were still mediated by semi-official professional petition writers.
In this context, the petitioner’s request was translated into a highly professionalized and rhetorical language. Yet, petitions still constitute unique sources; they offer moments in which the researcher can approach—and almost hear—the historical subject. Furthermore, an analysis of this rhetorical language and of the content of the petitions, as well as of the actors involved in the petition, provides us with unparalleled information on social and legal affairs. Petitions—as well as the Imperial Council registers—accord the researcher an additional advantage: they provide valuable information about the experiences of non-Muslim subjects in the empire because their religious leaders, and they themselves, contacted the central government more often than they utilized the local kadı courts, although they had their own community courts.
This exceptional source has received almost no attention in studies on Ottoman history despite the fact that it has been widely utilized by researchers of European history.47 In this study I introduce petitions as a valuable source for historical analysis in Ottoman studies.
Like the registers of imperial rescripts, petition folders (A.DVN.ŞKT) collected in Şikayet Kalemi Belgeleri in the Prime Ministry Archives also start in 1742. By 1767, the number of folders had reached 977. For the purpose of this study, I have selected and analyzed eleven folders from the period between 1742 and 1744, each composed of approximately 125 petitions.48 These folders combine the petitions of Ottoman subjects from all over the empire although petitions coming from the “core provinces” of the empire—Thrace and the western half of Anatolia—constitute the majority. Therefore, I extracted those petitions from the province of Anadolu. However, I used petitions from other Anatolian towns as well, when they constituted a relevant example for comparison. I studied three volumes of Ankara court records and two volumes of Bursa court records covering the period from 1741 to 1745. Kadı court records are, in many respects, invaluable sources for my study.
First, they provide very rich and relatively detailed data—compared to petitionary registers—for an understanding of local social and gender dynamics. They include a variety of criminal cases and judicial verdicts, though it is often not possible to see the sentence in criminal disputes. Finally, they provide us with plenty of information about administrative and legal practices because they also contain records of the imperial orders addressed to the judges and administrators of particular towns. As for supplementary sources, I conducted an examination of three major fetva collections (the compilations of the legal opinions of the chief muftis) from the eighteenth century, in order to explore the connection between the theory and practice of Islamic law. These fetva collections are the BehcetüʾlFetava, Tuhfetüʾl-Fetava, and Neticetüʾl-Fetava.
These three collections are compilations of the legal opinions of many important chief muftis of the eighteenth century; including those of Feyzullah Efendizade es-Seyyid Mustafa who served as chief mufti during the period I studied, from 1736 to 1745, and of Yenişehirli Abdullah who occupied the office from 1718 to 1730 and whose fetvas were very influential in the decades that followed. Since fetvas give the legal reasoning of muftis faced with practical questions arising from daily experience (that is, they are not treatises based on independent theological reasoning), they embody the mutability of Islamic jurisprudence according to political and social conjunctures. Therefore, analyzing the major eighteenth-century fetva collections provides an important jurisprudential perspective on sexuality and on the political power’s discretionary judgment over social order.
Finally, I include a volume of kalʿabend registers of the Imperial Council covering the period from 1743 to 1745 in order to analyze sexual offenses penalized by imprisonment and/ or banishment. Such a multiplicity of sources enables us to explore, on the one hand, the various layers of institutional workings and networking of the legal system, and, on the other hand, minute details of the subject positions. The geographical scope of this study is limited to Ottoman Anatolia for several reasons.
The province (eyalet) of Anadolu, that is, the western part of today’s Anatolia, Kütahya being its capital in the eighteenth century, was a “core” province of the empire.49 (See Map 0.1) It was a particularly appropriate locale, as it is relatively close to Istanbul and this allowed for more frequent and easier communication with the imperial center. This resulted in a higher number of petitions to the imperial center by the Anatolian people and thus provided me with rich data to work on.50
In quantity, the Anatolian Registers of Imperial Rescripts and the petitions sent by the people of Anatolia exceed those of many other provinces. While this relative abundance of documents provides an opportunity to trace the interaction between judicial and administrative authorities, one should not forget that the legal scrutiny of the state observed in this relatively intense interaction is specific to the region of Anadolu and therefore conclusions about this area cannot necessarily be applied to other parts of the empire. In order to make a nuanced analysis of the legal administration of sexual crimes in Anatolia, I selected the court records of two Anatolian towns, namely Bursa and Ankara, for this research. The purpose in analyzing the court records of these towns is not to write their social histories, but rather to situate them in a larger socio-legal picture of the administration of sexual crimes. In this sense, this study is not interested in the local histories of these localities, but in their capacity to represent multiple aspects of an Anatolian town. Thus, I have chosen these towns, not only because of their position in different regions of the Anatolian province (western Anatolia), but also because of their location at some distance from Istanbul where the Imperial Council resided. This point has been particularly important, as it has enabled me to observe the relationship of Ottoman subjects of the provinces with the central government. During most of the Ottoman period Bursa and Ankara had important political and commercial connections to Istanbul. Both were significant administrative and economic centers in the eighteenth century. Bursa had always been— during the eighteenth century and before—a colorful and prosperous center. Not only was it the first capital of the Ottoman Empire (1327–1402) but it was also the capital city of the sub-province (sancak) of Hüdavendigar during Ottoman rule. It was an international center of the silk and cotton trade and industry thanks to its proximity to international trade routes and to Istanbul; and it was a multi-ethnic and multi-religious city with a population consisting of Muslims, Greeks, Armenians, and Jews.51 Ankara was also an important administrative and economic center, being the first capital of the province of Anatolia until Kütahya took over this function in 1451; and it became the capital city of the sub-province of Ankara in the Ottoman period. It was an important international and regional center for the production and trade of angora and woolen cloth (sof), and it was also a multi-ethnic religious center with a population composed of Muslims, Armenians, Greeks, and Jews.52 As for administrative and judicial status, by the eighteenth century both Bursa and Ankara were already among the highest ranking judicial districts (mevleviyet). In the period studied here, the administrative and judicial governance of these two towns were assigned by the central government to high level religious and vizierial bureaucrats as a revenue source. This meant that the holders of these appointments generally did not go and stay at their place of office, but rather appointed deputies on their behalf (lieutenant-governor or deputy-judge). Such practices contributed to the localization of provincial government explained in this study.
The body of this study is composed of five chapters. The first chapter outlines the historical context in which Ottoman imperial law operated in the mid-eighteenth century. While discussing the changes which took place in the economic and social configuration of the empire during the late seventeenth and early eighteenth centuries, this chapter specifically interrogates the status of kanun (imperial law) in the eighteenth century. By concentrating on imperial decrees and petitions from the mid-eighteenth century rather than on searching for a codified source of kanun, this chapter demonstrates that, contrary to mainstream arguments about its decay, the kanun was still a prevailing force as an amalgam of certain legal practices and institutions in the mideighteenth century, and it was utilized as an important tool in the construction of both ideal and real moral order.
In Chapter 1 I probe the historical bases of Ottoman political discretion over public order by reviewing Islamic theory, which concedes judicial prerogative over public order to the Muslim sovereign, and by summarizing the sultanate’s implementation of this prerogative through law books during the sixteenth century, and I demonstrate how this prerogative was deployed in a different socio-political setting in the eighteenth century. At this time, the central administration underwent a transformation toward an oligarchic rule while the provincial governments shifted toward the regional politics of the local elite as a result of the new redistributive economic policies. This chapter argues that these transformations altered the shape of the kanun, which then became a more flexible amalgam of legal and archiving practices of different legal institutions in the eighteenth century.
Chapter 2 explores the phenomenon of petitioning in mid-eighteenthcentury Anatolia as an important juncture in which the central government’s concerns about scrutinizing public order in the provinces converged with Ottoman subjects’ strategies to maneuver and engage in social and political power struggles through alternative legal means. By specifically interrogating the reasons Ottoman subjects petitioned the Imperial Council to resolve their local disputes, including many sexual offense cases, this chapter provides a detailed account of the people’s utilization of the local kadı courts, governor’s councils, and the Imperial Council, alongside the office of the chief mufti.
It also demonstrates that the proliferation and diversification of the petitionary registers of the Imperial Council that gained bureaucratic momentum in the mid-eighteenth century apparently enabled the central administration, through these petitions, to scrutinize the local power holders. Since the boundaries between those local power holders were blurred as a result of the incorporation of local notables and local power brokers, such as “bandit”-mercenaries, into the provincial government, the central administration seems to have utilized petitioning as a way to watch over local events in the mid-eighteenth century. In Chapter 3 I undertake a deeper analysis of the utilization of petitioning in cases of sexual violence.
I note an overlap between “banditry” and “sexual violence” in the petitions from Anatolia and explore the symbolic as well as legal significance of sexual violence in cases of excessive violence or habitual criminality, i.e., banditry. By examining the term “violation of honor” (hetk-i ırz), which was frequently utilized by petitioners and the central government, I finally discuss how, by the mid-eighteenth century, the establishment of sexual order and the protection of the “honor” of Ottoman subjects had become an overall legitimizing concept in the legal discourse regulating the relationship between the Ottoman state and its subjects. In Chapter 4 I focus on the legal and social scrutiny of sexual crimes in mideighteenth-century Anatolia and look at the “court” as a gendered space. To this end, I develop a taxonomy of sexual offenses as they appeared in legal practice in mid-eighteenth-century Anatolia. I survey definitions and categories of “illicit” sex in the kadı court records of Ankara and Bursa as well as in the petitionary records of the Imperial Council.
This chapter establishes a genealogy of the terms used in legal practice, especially of “indecent act(s)” (fiʿl-i şeniʿ), and various other expressions that connoted sexual transgression, by investigating their historical and legal relationship within different legal entities such as the kanun, Islamic jurisprudence, and fetvas. I investigate the fact that legal practice proliferated the definitions and categories of sexual crimes by not defining sexual offenses in strictly shariʿa-driven terms such as zina, even though it also played down people’s experiences through its use of euphemistic expressions. This chapter reveals that in the eighteenth century there was a tendency in the courts to replace the most commonly used term for sexual offenses in Islamic jurisprudence, zina, with fiʿl-i şeniʿ. This tendency, I argue, might be a reformulation of the old practice of discretionary jurisdiction of the Ottoman political power over sexual crimes. Chapter 5 explores the outcomes of such categorizations in penalizing sexual offenses in eighteenth-century legal practice. In other words, how, under the established categories of sexual offenses, was sexual and moral order instituted by punishing sexual deviance.
After reviewing the issue of the rarity of punishments being recorded in the court verdicts, and the alternative means of tracking punishments through legal documents, this last chapter primarily examines the penal structure of the eighteenth-century judicial system. In Chapter 5, I consider appellate and judicial review mechanisms in legal practice, and note that the exploration of punishments inflicted for various sexual offenses illustrates how political power deployed its age-old jurisdictional right of “discretion” in penalizing sexual offenses in a more centrally scrutinized execution of punishment in eighteenth-century Ottoman Anatolia. I argue that this centripetal scrutiny of the penal enforcement of sexual and moral order reflects the fact that sexual deviance, and especially sexual violence, signified a disturbance of public and gender order, one that was increasingly perceived by the Ottoman state as an assault on its honor and legitimacy.
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