Download PDF | Guy Burak - The Second Formation of Islamic Law_ The Hanafi School in the Early Modern Ottoman Empire-Cambridge University Press (2015).
294 Pages
The Second Formation of Islamic Law
The Second Formation of Islamic Law is the first book to deal with the rise of an official school of law in the post-Mongol period. Guy Burak explores how the Ottoman dynasty shaped the structure and doctrine of a particular branch within the Hanafi school of law. In addition, the book examines the opposition of various jurists, mostly from the empire’s Arab provinces, to this development. By looking at the emergence of the concept of an official school of law, the book seeks to call into question the grand narratives of Islamic legal history that tend to see the nineteenth century as the major rupture. Instead, an argument is formed that some of the supposedly nineteenth-century developments, such as the codification of Islamic law, are rooted in much earlier centuries. In so doing, the book offers a new periodization of Islamic legal history in the eastern Islamic lands.
Guy Burak is the Middle Eastern and Islamic Studies Librarian at New York University’s Bobst Library. Previously, Burak was a postdoctoral Fellow at the Max Planck Institute for the History of Science, Berlin, and in the Islamic Legal Studies Program at Harvard Law School. His articles have appeared in the International Journal of Middle East Studies, Comparative Studies in Society and History, the Mediterranean Historical Review, and the Journal of Islamic Studies.
Acknowledgments
This book started as a dissertation at NYU almost a decade ago. I would like to thank my dissertation committee. Tamer el-Leithy’s creative and critical approach to historical sources and legal documents was illuminating. Zvi Ben-Dor Benite’s ever-expanding intellectual horizons took this project into several unexpected places. The post-Mongol turn of this project is to a considerable extent a result of Zvi’s insistence on a global approach to historical questions. Everett Rowson’s erudition and generosity were indispensable: he was the best guide one could ask for through the intricacies of Islamic thought and legal discourses.
I also thank him for his assistance when I was lost in translation. Baki Tezcan commented on several drafts of the dissertation. Baki also offered useful advice when the manuscript was in preparation. Finally, I am grateful to Leslie Peirce, my main adviser. It is thanks to Leslie that the book is imperial in scope. Leslie has been a careful reader and editor: her lucid style and elegant narratives are superb examples to follow. Moreover, Leslie’s encouragement and confidence in me and in this book have been absolutely crucial.
The first draft of this book was written during two short postdoctoral fellowships at the Max Planck Institute for the History of Science in Berlin and the Islamic Legal Studies Program at Harvard Law School. In Berlin, Anthony Grafton, Glenn Most, and the research group on premodern textual practices commented generously on Chapter 4 of this book. At Harvard, Shahab Ahmed invited me to discuss my dissertation in his seminar at HLS. Shahab also invited me to submit this book to Cambridge University Press. Our long conversations shaped this book in numerous ways. Also at Harvard, I benefited immensely from conversations with Baber Johansen, Maaike Voorhoeve, Nir Shafir, Zeynep Oguz, Unver Riistem, Himmet Taskémiir, Avigail Noy, Andrew Halladay, and Noit Banai. They all made my stay in Boston/Cambridge enjoyable and stimulating.
Jonathan Brown had understood that the project was about the madhhab before I did. His invitation to write an entry on the madhhab for the Oxford Encyclopedia of Islamic Law and his editorial insights completely changed the framework of the book. Brinkley Messick’s encouragement and inspiring comments improved this project substantially. I would also like to thank Selim Kuru, Wheeler Thackston, Ehud Toledano, Amy Singer, Michael Gilsenan, Robert McChesney, Jane Burbank, James Baldwin, Bruce Grant, Sibel Erol, and Mohammad Mehdi Khorrami.
Several institutions supported the research for this book. At NYU, the MacCracken Fellowship and the Dean’s Dissertation Award enabled me to complete the dissertation. The Max Planck Institute and Harvard Law School supported me during my stay in Berlin and Cambridge, Massachusetts, respectively.
The research for this book was conducted in several libraries. I thank the staff of the Sileymaniye Library (Istanbul) for their welcoming hospitality and assistance. I also thank the staff at Beyazit Library, Milli Yazmalar Kiitiiphanesi, the Center for Islamic Studies (ISAM), the Staatsbibliothek zu Berlin, the Khalediyya Library in Jerusalem, the library at Haifa University, the rare books and manuscripts section at Firestone Library (Princeton), the New York Public Library, and Butler Library at Columbia. Special thanks go to Peter Magierski, formerly of the Middle Eastern and Islamic Studies department at Bobst Library at NYU and now my colleague.
The Conclusion of this book is based on an article I published in Comparative Studies in Society and History. 1 thank Andrew Shryock, David Akin, and the four anonymous reviewers for their comments and suggestions.
I thank William Hammell, Kate Gavino, Shari Chappell, the staff at Cambridge University Press, and the reviewers of the book manuscript for the useful comments and suggestions. I also thank my editor, Allison Brown, for her careful reading of the manuscript and for her invaluable suggestions.
Many friends heard more than they could care about this project. I am grateful for their friendship, patience, and long conversations. I thank Omar Cheta, Hasan Karatas, Tuna Artun, Nada Moumtaz, Rebecca Wiggins, Ayelet Zoran-Rosen, Dale Correa, Samy Ayoub, Ilan Diner, Shuki Ecker, Roni Weinstein, Nira Reiss, Ori Kleiner, Gerald Heverly, Lyuba Grinberg, and Yassine Touati. I am especially grateful for Selma Zecevic’s friendship and advice. I could not have written this book without her work and thoughts about the other end of the empire. Finally, Yigal Nizri, an amazing friend and intellectual companion, is present in every page of this book.
Last but not least, I thank my parents for their support of my academic pursuits. This book could not have been written without you. I dedicate this book, with great love, to my sister, Adi.
Note on Transliteration and Dates
Asis well known, the Ottoman Empire was multilingual. This multilingualism is also reflected in the sources I have consulted. Most of the sources are in Arabic and Ottoman Turkish, but there are a few in Persian. The vocabularies of these languages often overlap, but their pronunciations differ. For extended citations, I use the International Journal of Middle East Studies’s transliteration system to Arabic and modern Turkish. For Ottoman Turkish, I use the ALA-LC (1997) transliteration system. For convenience’s sake, several words I use frequently — such as madrasa, fatwa, mufti, (and not medrese, fetvd, miift?) — follow the Arabic transliteration system. I use the English spellings whenever they are widely recognized (e.g., Cairo, Damascus). Some names appear throughout the book in their Turkish and Arabic forms (Muhammad and Mehmet, for instance). If the individual is from the Arab lands, I follow the Arabic transliteration system, but if she or he is from the Turkish-speaking parts of the empire, I use the Turkish transliteration. No one person will have his or her name spelled differently on different occasions.
Whenever I cite a Muslim Hijri date, it is followed by its Gregorian equivalent. For the most part, I cite the Gregorian date exclusively.
Introduction
In 1535, soon after the Safavid army evacuated the city, Ottoman troops, led by Sultan Siileym4n (r. 1520-66), marched into Baghdad. The Ottoman excitement about this military achievement is understandable: within a time period of twenty years, all the major cities and the most important learning centers of the eastern part of the Arabic-speaking world had come under Ottoman rule. Baghdad was a prestigious addition to the expanding Ottoman Empire for another reason — it was there that the eponymous founder of the Hanafi school, Abi Hanifa (d. 767), was buried. Sixteenth- and seventeenth-century chroniclers did not fail to recognize the symbolic significance of the seizure of the tomb of the Greatest Imam (al-Imam al-A‘zam). Some describe in detail how the sultan himself visited the tomb upon its conquest and ordered its purification, for, in Sunni Ottoman eyes, it was contaminated by the heretical Safavids.
This symbolic reconstruction of the tomb of Abi Hanifa was the third of its kind within less than a century. During the siege on Constantinople, Mehmet the Conqueror is said to have discovered the grave of Abt Ayyab al-Ansari, one of the companions of the Prophet Muhammad who died when he tried to conquer Constantinople in the seventh century.* Later, in 1516, the Ottoman seizure of another tomb, that of the famous yet controversial Sufi master Muhyi al-Din b. al-‘Arabt, in the Salihiyya suburb of Damascus, was celebrated with great pomp, and Sultan Selim I, the conqueror of Syria and Egypt, ordered the restoration of the tomb and the construction of the mausoleum complex.* These ceremonial reconstructions of important tombs, as real acts and narrative tropes, are intriguing not only because members of the Ottoman dynasty play an important role but also because each of the three figures whose tombs were discovered and reconstructed represent a pillar of what some modern scholars have called “Ottoman Islam.”* Aba Ayyab al-Ansari embodies the Ottoman dynasty’s ideal of holy war against the infidels; Ibn al-‘Arabi was one of the most prominent figures in the Ottoman pantheon of Sufi masters; and Aba Hanifa was the founder of the school of law (madhhab) that the Ottoman dynasty adopted as its official school. In other words, the discovery-reconstruction of their tombs was an act of appropriation. In this book, I am particularly interested in the third pillar — the Ottoman Hanafi school of law.
Suileyman’s seizure and reconstruction of Abii Hanifa’s grave captures broader developments that predate the conquest of Baghdad. Since the early fifteenth century (and possibly even earlier), the Ottoman dynasty had gradually developed a distinctive branch within the Sunni Hanafi school of law, one of the four legal schools of Sunni Islam. The development of a distinctive branch that was exclusively associated with the dynasty was coupled by another important development: the rise of an imperial learned hierarchy. Although the institutional aspects of the development of an imperial hierarchy have been studied in detail, the doctrinal dimensions of this development have received considerably less attention.° Furthermore, despite the fact that the Ottoman adoption of the Sunni Hanafi school is almost a scholarly truism among students of Islamic societies, the implications of this adoption — a radical innovation in Islamic legal history — remain fairly understudied.
One of the few exceptions is Rudolph Peters’s short yet thought-provoking article, in which he raises the question that guides my inquiry: “What does it mean to be an official madhhab?”’ In this article, Peters points to the instrumental role the Ottoman state played in the emergence of the Hanafi school as the official and dominant school in the Ottoman domains and to its intervention in regulating, to some extent, the school’s doctrines. Following some of Peters’s insights concerning the pivotal role the Ottoman dynasty played in the emergence of the official madhhab, the present study pursues his investigation further by looking at multiple sites, discourses, and practices that formed the Ottoman Hanafi school over the course of the fifteenth through the eighteenth centuries.
The rise of an Ottoman official legal school may be also seen as a new chapter in the history of canonization of Islamic law. In recent years, several studies have looked at Islamic legal history, especially at its earlier centuries, through this lens.* But while canonization is pivotal to the emergence of any tradition, legal or otherwise, it may assume different forms. The Second Formation of Islamic Law focuses on the particular features of the canonization practices that the Ottoman dynasty and its learned hierarchy employed to shape an Ottoman madhhab and compares them with other canonization mechanisms and perceptions of legal canons that prevailed in earlier centuries, as well as in various scholarly circles throughout the Ottoman Empire.
My investigation of the history of the Ottoman official madhhab oscillates between the provincial and the imperial levels. At the provincial level, this study examines the encounter between the followers of different branches and traditions within the Hanafi school of law in the Ottoman province of Damascus (Bilad al-Sham, or Greater Syria, roughly modern day’s south and central Syria, Lebanon, Palestine/Israel, and parts of Jordan) in particular, although much of what will be said in the following chapters may be applied to other Arab provinces as well. At the imperial level, it seeks to draw attention to how the conquest and subsequent incorporation of the Arab lands into the empire produced a clearer articulation of the boundaries of the learned hierarchy and, more generally, of the branch within the Hanafi school that members of the dynasty were expected to follow.
I have chosen the Ottoman province of Damascus for three reasons. First, although the Arab provinces were conquered over the course of the sixteenth century, their incorporation assumed different forms.’ Moreover, sixteenth- to eighteenth-century sources often differentiate between the various districts that constituted the “Arab lands” of the empire. Therefore, it is necessary to pay attention to the particularities of each province. Second, since a major concern of this study is the organization of the Ottoman legal administration, it is convenient to preserve the provincial setting. Third, as Kenneth Cuno has demonstrated, there were, at times, significant doctrinal differences between the Hanafi jurists of each province.!°
That said, this study seeks to undermine the rigidity that the focus on the imperial administration implies. Accordingly, the term “the Ottoman province of Damascus” — and, more generally, the term “Arab lands” — is used to demarcate a territory in which the encounters and exchanges between people, ideas, and traditions occurred. To be sure, certain traditions and practices were rooted in these regions, as many sixteenth- to eighteenth-century jurists and chroniclers observed. Yet it is necessary to differentiate between the territory and certain cultural practices, albeit for analytical ends. This approach also enables us to account for the multiple contacts and ties between the disparate parts of the empire and between certain provinces and other parts of the Islamic world. For example, one has to account for the fact that some of the Greater Syrian jurisconsults received questions from neighboring provinces as well as from the central lands of the empire. Moreover, many jurists traveled to and from other learning centers across the Arab lands (namely, Cairo and the holy cities in the Hijaz) and the imperial capital. In addition, the circulation of texts and students tied Greater Syrian jurists to other provinces across the empire and beyond.
The book’s chronological framework is from the second half of the fifteenth century though the late eighteenth century. The relatively long time frame enables us to trace the gradual incorporation of Greater Syria into the empire and to examine the impact of this incorporation on different perceptions of the legal school.!! Furthermore, examining the history of the official madhhab up to the late eighteenth century may provide a better understanding of the more widely studied developments of the nineteenth century.
The Madhhab
In order to appreciate the novelty of the rise of the official school of law, the main development this book aims to describe, it would be helpful to introduce — admittedly, in very broad strokes — the notion and features of the pre-Mongol Sunni madhhab. As I have suggested above, this notion of the school did not disappear in the post-Mongol period, and jurists in certain circles adhered to this understanding of the school of law.
The pre-Mongol madhhab (plural madhahib, mezheb in Turkish) was a fairly loose social organization whose main function was to regulate the legal interpretation of divine revelation and to determine the authority of a given interpreter to do so. The word “madhhab” is derived from the Arabic root dh-h-b (generally associated with walking or following a path) and means “a way, course, or manner, of acting or conduct.” More generally, the term is used to denote a doctrine, tenet, or an opinion concerning a certain issue. In certain cases “madhhab” may refer to the opinion of a leading jurist on a specific issue, but it may also denote, as is more commonly the case, a general hermeneutic approach.”
During the late ninth and tenth centuries, the madhhab emerged as a legal discourse, or canon, around which a community of jurists galvanized. Moreover, much greater efforts were invested in regulating the range of permissible opinions within each school, and, perhaps more importantly, in limiting the authority of later followers of the schools to employ independent discretion or reasoning (ijtibad) and new hermeneutic approaches to derive new rules. This does not mean that jurists of later centuries did not employ independent reasoning to solve new problems they encountered, but that, discursively, followers of the schools emphasized their commitment to the doctrines of their schools’ respective founders and leading authorities. Later jurists affiliated with a school were expected to derive new rules on the basis of the rulings and doctrines of the school’s founder, the hermeneutic principles he set, and those developed by his disciples and later authorities within the school. The commitment to these hermeneutic and doctrinal principles is what made a jurist a follower (or an imitator, muqallid, the performer of taqlid) within a school.'°
As part of the evolution of the madhhab as a communal legal discourse, since the late tenth and eleventh centuries, and even more so in the following centuries, all four Sunni schools of law developed a hierarchy of authorities. This hierarchy of authorities was often reflected in a growing textual body of chronological typologies of the jurists who were affiliated with the different schools. Generally, in most typologies, jurists of later centuries were limited in their authority to exercise independent discretion, although many of them, in practice, did. By establishing a hierarchy of authorities, the schools emerged as a corpus of doctrines and arguments that their followers had to study and memorize. These typologies drew on, and were accompanied by, an extensive biographical literature (known as the tabaqat literature) whose main purpose was to serve as reference works for the schools’ followers by documenting the intellectual genealogies of the schools (most commonly starting with the eponym), mapping out the schools’ leading authorities, and reconstructing the genealogies of authoritative opinions and doctrines within the schools.
The typologies, as we shall see in Chapters 2 and 3, vary in structure and scope. Some are quite comprehensive, while others only outline general principles. Moreover, some typologies begin with the highest rank of mujtahids. The utmost mujtahid may derive new rules when he encounters new cases by resorting to the revealed texts. The eponymous founder of the school and often his immediate companions are included in this category. Other typologies start from the perspective of the follower least qualified to employ independent discretion, the utmost imitator, the muqallid. In any case, the typologies reflect a fairly wide and complex range of juristic activity in terms of the authority to employ independent reasoning, which is not limited to the dichotomy of independent reasoning versus imitation. Between the utmost mujtahid and the utmost muqallid are jurists who are allowed to use limited forms of ijtibad (known as takhrij) as long as they conform to the hermeneutic principles set by their schools’ eponym and his immediate followers.
In most typologies, this form of judicial activity was performed by the jurists who studied with the founder and his immediate successors, but jurists of this category can be found, albeit to a lesser extent, in later centuries. Later jurists, who usually lived in the fourth and fifth Islamic centuries (tenth and eleventh centuries CE), were mostly concerned with weeding out weaker and less authoritative opinions and arguments while making other opinions preponderant (hence this activity is termed tarjih, literally meaning to prefer). They did so on the basis of their understanding of their interpretation of the teaching of their predecessors. All the jurists who followed a school, except the founder of the school, performed taqlid to varying degrees, as they followed hermeneutic and legal principles that already existed. Jurists of later centuries, for the most part, were considered utmost mugallids, although they, too, practiced at times different forms of takhrij and tarjih.\4
Despite the consolidation of the legal schools around specific legal discourses and hermeneutic principles, at what Wael Hallaq calls the microlevel of the school, there were multiple opinions. Over the centuries, the Sunni schools of law developed discursive conventions and other institutional practices to guide their followers through the different opinions of the schools and to point out what opinions and doctrines were considered more authoritative. These conventions were instrumental in articulating the schools’ canons. While many of the less authoritative opinions, or the minority opinions, were preserved in the schools’ texts and manuals, the authoritative opinions served as pedagogical tools that guided followers of the school to extrapolate and derive new rules on the basis of the hermeneutic principles that their more authoritative predecessors developed.!
For our purposes here, it is important to stress that, doctrinally, the evolution of the schools of law and the regulation of their jurisprudential content were not a state-sponsored enterprise. This is not to say that states and sovereigns did not contribute to the dissemination of the schools by extending support, employment, and patronage to specific jurists or did not in practice shape doctrine. As early as the seventh and the eighth centuries, the Umayyad (661-750) and the ‘Abbasid (750-1258) dynasties supported eminent jurists and appointed jurists to different positions in their realms."
In other cases, while not intervening directly in the content of the law, rulers and sovereigns adopted a school (and sometimes several schools) to provide authoritative legal counsel. In the Ayyubid and the Mamluk sultanates, for example, it was fairly common that the sultan was a follower of the Shaft school of law, the most popular school in Egypt at the time.!” In the Mamluk sultanate during the reign of Sultan al-Zahir Baybars (d. 1277), the state constituted a legal system in which all four schools were represented and specific cases were directed to judges of different schools, according to the relative advantage of the most common view of the school for the Mamluk ruling elite.
Although the Mamluk state regulated the adjudication procedures of cases dealing with specific issues, it did not intervene doctrinally in the regulation of the structure of the school, its authorities, and the content of the law, and it accepted the opinion of eminent jurists as to what the preponderant opinion of the school was. Furthermore, although the Mamluk (like many other contemporary and early Islamic dynasties) employed jurists, for the most part there was no institutionally identifiable group of jurists that were affiliated with the ruling dynasty.!? In Sherman Jackson’s words, “The idea, thus, of state sovereignty entailing the exclusive right to determine what is and what is not law, or even what is and what is not an acceptable legal interpretation, is at best, in the context of classical Islam, a very violent one.”*°
The Official Madhhab
How the Ottomans (and, it appears, other contemporary polities) understood the madhhab diverges markedly from the classical, pre-Mongol understanding, for the Ottoman sultan and ruling dynasty assumed the right to intervene doctrinally in regulating and structuring the school. One should allow some room for contingency in the development of the official school of law, but it is fairly clear that at least from the second half of the fifteenth century the Ottoman ruling and judicial elite sought to single out a particular branch within the school.
The present study follows four major, closely interlocking developments that contributed to the evolution of the state madhhab: (1) the rise of the imperial learned hierarchy, (2) the emergence of the practice of appointing muftis by the dynasty, (3) the dynasty’s/state’s regulation of the structure and doctrine of the school, and (4) the rise of dynastic law in the post-Mongol eastern Islamic lands. These developments are so closely related that it is almost impossible to treat one without considering the other three. Nevertheless, I will argue, the first three depend upon the fourth.
Since the early fifteenth century, and particularly since the conquest of Istanbul in 1453, the Ottoman dynasty gradually developed an imperial learned hierarchy, with fairly standardized career and training tracks and a hierarchical network of teaching institutions whose graduates manned many of the senior judicial and bureaucratic positions throughout the empire. This hierarchy was structured and regulated by the Ottoman dynasty through a series of imperial edicts, regulations, and legal codes, perhaps the most famous of which is the legal code ascribed to Mehmet II.?! Furthermore, as we shall see in Chapter 4, in addition to regulating the structure of the hierarchy, certain legal codes regulated the curriculum taught in these institutions. By regulating the curriculum — and by specifying an imperial jurisprudential canon — the Ottoman dynasty also regulated the doctrine of its branch of the Hanafi school of law and limited the range of permissible hermeneutic principles that jurists who were affiliated with it could follow when deriving new rules.
An integral component in the evolution of the learned hierarchy was the emergence of the practice of the appointment of jurisconsults (muftis) by the sultan and the rise of the chief imperial mufti (the seyhiilislam) to preside over the learned hierarchy as a whole.” Although many of the officially appointed muftis were graduates of the imperial educational system, in the Arab provinces of the empire, the Ottoman dynasty and its learned hierarchy also gave appointments to muftis educated elsewhere. In addition, many of these muftis served as professors in the imperial madrasa system either before or during their tenure in the position of mufti. From the mid-sixteenth century, when the chief imperial mufti became the head of the imperial hierarchy as a whole, he became institutionally its chief judicial and scholarly authority. In that capacity, as I show in Chapter 4, he also regulated the imperial jurisprudential canon that members of the hierarchy were to apply. In so doing, the chief mufti regulated the doctrine of the branch within the Hanafi school of law that the learned hierarchy followed. Furthermore, he could enforce specific legal arguments and doctrines out of a wider range of opinions within the Hanafi school, and, in some cases, the seyhiilislam opted for a minority opinion within the school and asked the sultan to issue an imperial edict that would enforce it within the learned hierarchy.
As we shall see in Chapter 2, as part of the consolidation of the imperial learned hierarchy, its members sought to document the hierarchy’s intellectual genealogy within the Hanafi school of law (and, to some extent, their personal genealogy as well). To this end, from the second half of the sixteenth century, high-ranking members of the hierarchy compiled intellectual genealogies (tabaqat) of the school. The aim of these compilations was twofold: first, they were intended to reconstruct and record a continuous chain of transmission of knowledge and authority leading from the eponymous founder of the school, Aba Hanifa, to members of the hierarchy; second, they sought to reconstruct the authoritative genealogies of certain legal arguments and jurisprudential texts within the Hanafi legal school that often constituted part of the imperial jurisprudential canon. Roughly around the same time as they were developing the genealogies, members of the learned hierarchy also started compiling biographical dictionaries that were dedicated to the upper echelon of the Ottoman learned hierarchy, the most famous of which is Ahmad b. Mustafa Task6priizade’s al-Shaqa@’iq al-nu‘maniyya. Through these biographical dictionaries, members of the hierarchy demarcated its institutional boundaries and cemented its career and training tracks.
Taken together, the institutional consolidation of the learned hierarchy and, as I argue in Chapter 1, the practice of appointing jurisconsults were instrumental in shaping the structure of the particular branch within the Hanafi school, or a specific Ottoman Hanafi canon, that members of the hierarchy followed. In earlier periods in Islamic history, the sovereign (the caliph, the sultan, or the state) appointed judges, but, as Norman Calder, following the fourteenth-century Shafit jurist Taqiyy al-Din al-Subki (d. 1355) points out, “Though both [the teaching/writing jurist’s and the mufti’s] functions might be marked by the acquisition of posts (a teaching post in a madrasa, the mufti-ship of a particular community), they were essentially informal. They permitted, but did not require, institutional realisation.”*° This was clearly not the case in the Ottoman Empire.
The Ottoman dynasty, it is worth reiterating, contributed immensely to the emergence of an Ottoman Hanafi school through certain administrative practices, edicts, and legal codes, which together constituted part of a legal corpus and discourse that I call throughout this book “dynastic law.” Furthermore, this set of administrative practices and legal codes was associated with and, to a large extent, drew its legitimacy from the dynasty and its ancestors (hence its definition as dynastic law). As I suggest in the Conclusion, the rise of Ottoman dynastic law was part of a broader development across the eastern Islamic lands in the post-Mongol period that drew heavily on the shared real and imagined political-legal heritage of Chinggis Khan.
The Official School of Law and the Imperial Legal Order
The conquest of the Arab lands set in motion an intense encounter between different jurists who claimed affiliation to different branches within the Hanafi school and perceived their relationship with the Ottoman dynasty quite differently. The exchanges and debates between the different jurists were not only centered on legal controversies concerning specific issues. They were also — or, perhaps, mainly - about the role the sultan and the dynasty were to play in regulating and shaping the structure of the Hanafi school of law and its doctrine. While jurists who were affiliated with the Ottoman dynasty accepted, and at times actively promoted, the sultan’s intervention in regulating the branch within the Hanafi school to which they claimed affiliation, other jurists, mostly from the empire’s Arab provinces, argued for much greater autonomy for the jurists, as was the case, at least theoretically, in the pre-Ottoman (and, more generally, in the pre-Mongol) period. In other words, generally speaking, the position of a jurist in relation to the Ottoman dynasty/sultan corresponded to a large degree to his position within the Hanafi school of law.
Throughout this volume, I pay considerable attention to the critique raised by discontents and rivals who called into question the validity of the legal order the Ottoman dynasty sought to advance. Their critique, I would argue, helps illustrate how radically novel, within the context of Islamic legal history, the emergence of an official state school was. Furthermore, these dissenting voices qualify the connection between the Ottomans and the Hanafi school of law as a whole. Put differently, this book argues that the Hanafi school in the Ottoman period was not, and should not be treated as, a homogenous school either socially or intellectually.
In recent years several studies have emphasized the role law and legal regimes played in different imperial and colonial contexts. While some studies have looked comparatively at various legal administrations, others have focused on the interactions between different legal systems within a single empire (as well as on inter-imperial legal arrangements). Among the latter, Lauren Benton’s studies of the organization and function of imperial legal regimes are particularly noteworthy. Benton’s work offers an analytical framework that allows numerous legal actors as well as the imperial state to be woven into the narrative. In addition, Benton has defined two main types of imperial legal orders. The first is a multicentric legal order in which the imperial state is one among many legal authorities. The second, by contrast, is state-centered, with the state claiming dominance over other legal authorities.*> More recently, Benton has elaborated her study of legal regimes and pointed to the importance of the geographical spread of “legal cultures,” institutions, and “carriers” of certain legal concepts, such as imperial officials, merchants, soldiers, and even captives. “Empires,” she has argued, “did not cover space evenly but composed a fabric that was full of holes, stitched together out of pieces, a tangle of strings. Even in the most paradigmatic cases, an empire’s spaces were politically fragmented; legally differentiated; and encased in irregular, porous, and sometimes undefined borders.””®
This study draws on Benton’s insights concerning the administration of law in different empires and pays attention to the overlapping topographies of administrative practices and legal-scholarly traditions across the Ottoman Empire. More concretely, it examines how the Ottoman dynasty and its learned hierarchy functioned in — but also shaped — the empire’s multicentric legal landscape. As I have mentioned, the new rulers did not ban the activity of some eminent jurisconsults who did not hold a state appointment, although they did ban the activity of nonappointed judges (qadis). Yet, in order to cope with this plurality of Hanafi jurists and traditions, the Ottoman dynasty and its affiliated jurists emphasized the importance of the official appointment and the importance of the affiliation with the imperial learned hierarchy, whose center was at the imperial capital.
The encounter between the different scholarly and legal traditions transformed all the parties involved, as jurists tried to adopt some of the discourses and practices of their rivals and opponents. Members of the Ottoman learned hierarchy, as we shall see in the following chapters, employed conventions and genres that prevailed in the preconquest period (and well into centuries of Ottoman rule) throughout what was following the conquest the Arab lands of the empire. On the other hand, as Chapter 1 examines, jurists who were not affiliated with the imperial hierarchy attempted in various ways to justify and retain their position within the imperial landscape on the basis of legal arguments that were accepted by members of the learned hierarchy as well. Moreover, the vast majority of the jurists that inhabit the chapters that follow were loyal Ottoman subjects, and some of the locally acclaimed jurists who were not members of the learned hierarchy authored treatises in which they praised the Ottoman dynasty.
This book also argues that the debates and exchanges between the jurists were not merely scholarly debates. Since these debates shaped to a considerable degree the legal landscape of the empire, they affected many individuals and groups who were not necessarily scholars or jurists. Furthermore, the multifaceted and diverse legal landscape meant that Hanafi jurists, regardless of their affiliation with the Ottoman dynasty, had to maintain ongoing dialogues with their colleagues, the Ottoman dynasty, and their own constituency (or constituencies) in order to preserve and negotiate their position within the imperial framework. Members of the Ottoman learned hierarchy were keenly aware that the ruling elite as well as many of their constituents across the central lands of the empire (the Balkans and central and western Anatolia) could address and consult Hanafis from the Arab lands, for though the Ottoman ruling and judicial elites tried to prevent this constituency from turning to jurists who were followers of the other Sunni schools (the Shaft, Hanbalt, and Maliki schools), they did not prevent them from addressing Hanafi jurists who were not affiliated with the imperial learned hierarchy.’’ Similarly, Hanafis from the Arab lands understood that their constituency, too, had new options to resolve their legal issues. Many Hanafis from the Arab lands retained their teaching positions in madrasas across these provinces
and were appointed as deputies of the chief provincial judge,** but, within the imperial legal system, they did not enjoy the same level of support that members of the dynasty (and particularly graduates of the Ottoman madrasa system) did, as the former acutely perceived. The concerns of both members of the learned hierarchy and their colleagues who were not officially appointed were grounded in reality: as I show in Chapter 5, individuals and groups, not necessarily members of one of the empire’s scholarly circles, made use of the multiple jurists who were at their disposal to promote their legal and other interests.
Paying attention to the complexity of the empire’s legal landscape and to the exchanges between the different jurists also casts light on additional dimensions of the conquest and incorporation of the Arab lands that have not received much attention in modern historiography. This gap in modern historiography may be attributed, at least in part, to the subtle and indirect nature of these debates and exchanges. There were relatively few instances of major debates that attracted the attention of contemporary and modern historians. This historiographical silence may seem surprising given the doctrinal significance of the rise of an official school of law and the formation of a well-defined and structured learned hierarchy. On the other hand, the multicentric nature of the empire’s legal landscape may account, to some extent at least, for this relative silence.
My analysis in the following pages, which concentrates on specific aspects of the relationship between the dynasty and the jurists, does not intend to question the sincerity of either the Ottoman dynasty or of the jurists who were affiliated with it (as some cynics may be tempted to do). In fact, my goal is to draw attention to both parties’ sophisticated responses, solutions, and adjustments in the face of the serious challenge posed by the encounter between the post-Mongol notion of dynastic law and the pre-Mongol notion of Islamic law. After all, the Ottoman dynasty invested considerable efforts and resources to develop a learned hierarchy in order to justify its claim to be an Islamic dynasty.
The Rise of an Ottoman Official Madhhab and the Grand Narratives of Islamic Legal History
Despite the particularities of the Ottoman Hanafi school, it appears that the emergence of the notion of an official state madhhab is not uniquely Ottoman. The rise of the official school of law and the dynasty’s intervention in its regulation may have been broader phenomena that spanned most polities throughout the eastern Islamic lands, from the Indian subcontinent to the Balkans, in the post-Mongol period. Herein lies the justification for the title of this book: in one of his last public talks, the late art historian Oleg Grabar suggested a supplement to his classic study The Formation of Islamic Art, which focuses on monuments from Syria, North Africa, and Islamic Spain from the eighth century to the tenth century.
The suggested supplement, which would be entitled The Second Formation of Islamic Art, would concentrate on the art produced in the eastern Islamic lands in the thirteenth and the fourteenth centuries, roughly the century and a half following the Mongol invasions of the thirteenth century.”? Inspired by Grabar’s suggestion, The Second Formation of Islamic Law seeks to offer an analytical framework that would account for the recurring discursive and administrative patterns across the eastern Islamic lands in that period, and particularly in the various Sunni (and Hanafi) polities of the region. These patterns, I believe, may be attributed to the introduction of new notions of law and rulership in the wake of the Mongol invasions of the thirteenth century. Moreover, they enable us to speak of a new era in Islamic legal history — indeed, a second formation of Islamic law.
Of particular importance in this context is the rise of the post-Mongol notion that each ruling dynasty has a corpus of legal and administrative practices that is distinctively associated with it, what I call throughout this study “dynastic law.” The terms that were used to refer to these dynastic laws varied over time and space: the yasa of Chinggis Khan, the Timurid tdre, or the Ottoman kaniin. Moreover, throughout the eastern Islamic lands in the post-Mongol period, the different dynastic laws were often perceived (as they also are in modern historiography) as incompatible with Islamic law, at least in the manner it was understood in the pre-Mongol period. The main reason for this real or imagined tension is that each of these legal corpuses/discourses had different historical and discursive points of reference: while the Islamic legal discourse claimed to derive new rules and laws by interpreting the divine revelation, dynastic law often drew its legitimacy from the authority of the dynasty’s ancestors and ruling members (and in some cases, from their heavenly mandate to rule). The tensions between dynastic and the pre-Mongol perceptions of Islamic law, I would suggest, shape the immediate background to the rise of the official state madhhab in two important ways: first, by developing an official school of law, the different dynasties and the jurists who were affiliated with them sought to reduce the tension between the legal bodies as they perceived it; second, as I hope to illustrate in the Ottoman context, it was on the basis of dynastic law that dynasties and sultans were able to regulate the structure of the school and its doctrines. Put differently, adherence to dynastic law as a legal ideal was both a challenge that many post-Mongol dynasties were facing and one of the most important tools they had at their disposal to respond to this challenge.
As I contend throughout this book, tracing the history of the official madhhab and its practice provides an opportunity to reconsider the issue of “reconciliation” or “harmonization” of dynastic and Islamic law. Most studies of the incompatibility and reconciliation of dynastic law and shari‘a have tended to focus on specific legal arguments or rules: if the sultan permitted or ordered acts that contradicted certain Islamic legal principles as some scholars perceived them (such as, for example, the construction of new churches and synagogues), his edict may have been considered contradictory to the tenets of Islamic law by certain jurists and modern scholars; on the other hand, if certain jurists succeeded in establishing the permissibility of certain practices on the basis of arguments they could find in the Hanafi jurisprudential tradition, these practices may have been considered licit according to Islamic law. This approach, however, fails to account for other dimensions of the relationship between Islamic and dynastic law, and seems to assume a very specific form of reconciliation or harmonization of the two discourses. Looking at the relationship between dynastic and Islamic law from the perspective of the Islamic school of law, the madhhab, considerably complicates this understanding of reconciliation.
The history of the rise of the official madhhab should also be examined in the context of other developments in Ottoman political thought and that of other contemporary dynasties. In recent years, growing attention has been paid to the self-perception of Muslim sovereigns in the post-Mongol period.°° In the Ottoman context, as Hiiseyin Yilmaz has demonstrated, the sixteenth century witnessed a fairly massive production of compilations on political theory. Many of these works were particularly interested in promoting a more legalistic view of the sultanate and stressed the importance of the dynastic legal tradition (kandin) as the definitive law of government, at the expense of the personality of the ruler.*' This study intends to elucidate additional dimensions of this legalistic worldview by focusing on another textual corpus — the jurisprudential production of jurists who were affiliated with the Ottoman dynasty. In so doing, the following chapters examine further the nature of the relationship between dynastic law, the ruling dynasty, and the jurists affiliated with it.
Finally, this book intends to call into question some key elements in certain dominant grand narratives of Islamic legal history. According to these narratives, the main rupture point in Islamic legal history is the nineteenth century, with its state-initiated (and often Westernizing) legal reforms and the codification of Islamic law. These reforms, so the narrative goes, replaced a more fluid and diverse Islamic law that was by and large regulated autonomously by the jurists (hence Islamic law is at times described as “jurists’ law”).°* This book shares these grand narratives’ emphasis on the role states/rulers played in regulating Islamic law, but it differs in its periodization of this important change, as the growing intervention of post-Mongol dynasties is observable from the fifteenth century (and perhaps even earlier). In the Conclusion, this study attempts to offer a historiographical framework, albeit a provisional one, that accounts for the developments in Islamic legal history in the postMongol period.
A caveat is in order here concerning the terminology. I make use of the terms “pre-Mongol” and “post-Mongol” quite freely throughout this study. Unless stated otherwise, these terms should not be taken as chronological terms in the narrow sense of the word. Rather, they are used to denote different relations between the ruling dynasty (or Muslim sovereigns, more generally) and the jurists. This usage reflects the book’s argument that some pre-Mongol notions and practices remained in circulation in the centuries following the Mongol invasions of the thirteenth century.
Link
Press Here
0 التعليقات :
إرسال تعليق