antagonistic sharīʿas and the construction of orthodoxy in sixteenth-century ottoman cairo

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ANTAGONISTIC SHARI6AS AND THE

CONSTRUCTION OF ORTHODOXY IN

SIXTEENTH-CENTURY OTTOMAN CAIRO*

RE E M M E S H ALLouisiana State University

INTRODUCTION

Prevented were we from rulingand from witnessing alsoprevented, all of us, through no faultas though we had come to them in drunkenness!1

A decree in 1517 banning all local judges, notaries and witnesses fromworking in the Courts of Cairo inspired this incredulous lament for thefate of Cairo’s judiciary. For a number of years after the Ottomanconquest of 1517, a virtual freeze on local judicial activity was imposed,precisely at a time when people were being ‘pushed to use the courts’.2

Judicial purges soon followed, dismissing judges, notaries and witnessesfrom legal service. If they were fortunate enough to have a job, judgesfound their jurisdiction so circumscribed that they were unable to ratifybasic social contracts, such as marriage and divorce, a privilege reservedfor the q:@; 6askar (chief Ottoman judge) alone.3 Other restrictions

* The subject of this article falls within the overlap between ‘Arabist’ and‘Ottomanist’ specializations. Given the Cairo location, it seemed better to use‘Arabicized’ forms for names, excepting the well known forms like Ebu’s-Su’ud,Ottoman sultans, and words like ‘Pasha’.

1 MuAammad b. AAmad Ibn Iy:s, Bad :8;6 al-zuh<r f ; waq:8;6 al-duh<r (ed.MuAammad MuB3af :; Wiesbaden: Franz Steiner, 1961), vol. v. 166.

2 N. Hanna, ‘Administration of Courts in Ottoman Cairo’ in N. Hanna (ed.)The State and Its Servants (Cairo: American University of Cairo Press, 1995), 50.

3 M. Winter, ‘Ottoman Occupation’ in C. F. Petry and W. M. Daly (eds.), TheCambridge History of Egypt (Cambridge: Cambridge University Press, 1998), i.

510. By the mid sixteenth century, the deputy judges of Egypt were divided intosix stations comprising the qu@:t al-akh3:t f ; MiBr beneath the authority of the

ß The Author (2010). Published by Oxford University Press on behalf of the Oxford Centre for Islamic

Studies. All rights reserved. For Permissions, please email: [email protected]

Journal of Islamic Studies 21:2 (2010) pp. 183–212 doi:10.1093/jis/etq040

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included making a waqf (endowment) appointment or ‘taking a decisionregarding waqf expenditures that went beyond routine expenses’, orissuing legal documents (Aujja) or rental contracts (ij:ra) without theexpress permission of the Ottoman chief judge.4 Among the measures

adopted to pre-empt a potential challenge to these policies, was thecensure of scholars accused of engaging in ijtiA:d (independent judicialreasoning). Far from being limited to the early years of the conquest,such episodic purges and restrictions continued to be intermittentlyapplied throughout the sixteenth century.

Who were the principal protagonists in this lively drama and what wasin contention? In answer to the first part of the question, some haveidentified the protagonists as the ‘state’ and local ulema, while otherssees this as an oversimplification. C. Fleischer has emphasized the fluid

and shifting parameters of authority, legitimation and ideology duringthe reign of Su ¨ leyman I (1520–1566) alone. The first three decades of Su ¨ leyman’s reign are ‘as extraordinary for the multiplicity of competingor contradictory cultural and social ideals and assumptions theymanaged simultaneously to contain as for the growth of dynasticpower and of an ever more grandiose imperial culture’.5 Part and parcelof this grandiosity was a political bid to re-invest the office of caliph withthe spiritual and temporal authority it once possessed in the era of theR:shid <n. Fleischer contextualizes this venture within the messianic andapocalyptic expectations of the era with its emphasis on renewal and ona re-born universal caliphate. In an echo of the tenth century miAna, thebid to anoint the sultan as the supreme mujtahid (legislator) wouldultimately fail. The appointment to the office of Chief Mufti in 1545 of Ebu’s-Su’ud6 is a symbolic moment that heralds the end of an era. Theunbounded production of sultanic q:n<n was now slowed, and thatwhich existed was harmonized with Shar; 6a through a process of ‘Islamization’. S. Buzov attributes this re-orientation to the sultanate’sconfrontation with the formidable institutional strength and legal

q:@; 6askar. According to the new hierarchy, an appointment to the courts of Cairo had to be preceded by five other stations. The q:@; s of the khu3 a3 wereconsidered the deputies of the q:@; 6askar, who appointed or terminated them.Shaykh al-Isl:m MuAammad b. al-Sur<r al-Bakr; al-Bidd;q;, al-Nuzha al-zahiyyaf ; dhikr wul :t MiBr wa-l-Q:hira al-Mu6izziyya (ed. 6Abd al-Razz:q 6Abd al-Razz:q 6Is:; Cairo: al-6Arab; li-l-Nashr wa-l-Tawz;6, 1998), 47.

4 Hanna, ‘Administration of Courts’, 46.5 C. Fleischer, ‘The Lawgiver as Messiah: The Making of the Imperial Image in

the Reign of Su ¨ leyman’ in G. Veinstein (ed.), Soliman le magnifique et son temps(Paris: Documentation francaise, 1992), 159.

6 This spelling of the name is now widely accepted. In ‘Arabicized’ form thename in full would be: 6Ab< l-Su6<d MuAammad b. MuAammad al-6Im:d;.

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traditions of the judicial classes in the newly conquered Arabic-speakingprovinces.7

Because the relationship between this universal sovereign and theumma ‘was determined and established in the lands hitherto known as

the Sultanate of R<m, it was necessary to present proof of the existenceof a distinctively Ottoman knowledge and juridical tradition. Su ¨ leymancould not speak for that’.8 The elite lawyer, Ebu’s-Su’ud, could however.His intervention restored legal authority to the jurist classes such that thelaw and its administration was no longer ‘controlled and directedexclusively by the state’, but by a judicial class organized into acorporative Hanafi guild.9 This change in the nexus of legal authorityalso changes the identity of the protagonists over the long sixteenthcentury. What does not change, however, is the persistence and scale of

judicial confrontation during the same period. While the identity of theprotagonists changes, i.e. local ulema against the Porte or against a rivalHanafi guild at the imperial centre, the core disputes surrounding thedefinition and relationship of q:n<n to Shar;6a, do not.

To the second part of the question (what is in contention?), one findstwo responses in the secondary literature. The first holds that the statewas attempting to re-organize the administration of the law withouttampering with the laws produced. The second argues that the ultimategoal was to reform both the legal process and the laws produced so as to

‘codify’, or ‘streamline’, the law. In the case of Egypt, the first view hasheld sway. M. Winter argues that tensions between Ottoman officialsand Egyptian jurists eased as the century progressed. Awed by thestrength and lineage of the Egyptian judicial establishment, he argues,the Ottomans limited their reforms to the legal process and avoidedtampering with the laws produced: ‘The Ottomans did not infringe uponthe religious or scholarly life of Egypt. Indeed, they limited theirinterference to material things.’10

N. Hanna concurs, adding that by the end of the sixteenth century, the

Egyptian judiciary had asserted its autonomy from Ottoman control andwas able to shape the law produced. She writes: ‘The way justice wascarried out was to a large measure left to the discretion of the magistrates

7 S. Buzov, ‘The Lawgiver and His Lawmakers: The Role of Legal Discoursein the Change of Ottoman Imperial Culture’ (PhD. diss., The University of Chicago, 2005), 140–3.

8 Ibid, 143.9 Ibid, 2.10 M. Winter, ‘Ottoman Occupation’, 27.

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working in the courts . . . the q:@; administered justice according to therules of the madhhab as he saw fit.’11

Without denying the influence of local practice on the laws produced,L. Peirce, and Buzov have argued that to ignore the impact of Ottoman

reforms on the political and cultural landscape that sustained it and wasshaped by it, is to overlook an important transformative moment in thehistory of Islam.12 In a comparative study of the q:n<n in Egypt andBosnia, Buzov concludes: ‘No sultan before or after Su ¨ leyman undertookchanging kanu n law and replacing it by law that disregarded completelythe local legal practices and customs’.13 Because law underwrites thesocial contract in an Islamic state, the stakes are at once political. ForFleischer and Buzov, this legal intervention signifies an experimentalstage in Su ¨ leyman’s bid for spiritual and temporal authority. Be that as it

may, to what end was this authority exercised and how is this reflected inthe new social contract? Interested in these questions, but from aperspective which privileges the subaltern’s history, Peirce innovativelyconcludes that, for the ordinary man and woman, the new socialcontract spelled a transformation in status, from subject to proto-citizen.What emerges is a peculiarly Ottoman legal culture that is at once moreindividualistic and more conformist.

This conformity or homogeniztion of rights and duties under the law isaccomplished through the manipulation of q:n<n and fiqh. As custom is

displaced by, or conforms to, codified imperial q:n<n, so too are the tiesthat bind the individual to his or her community and its normativearbitration. And, as the authority of the schools of law (madhhabs) isdiminished by the authority of the state’s chosen madhhab, so too is thediversity of opinions resulting therefrom. It is this trend towardsconformity and homogeneity, I argue, which is bitterly contested bythe Cairene judiciary. And in spite of the claim that Ebu’s- Su’ud openedthe door to a ‘new Ottoman cultural identity . . . [that saw merit] inpreservation of the cultural and religious systems’ of the empire, theevidence presented here challenges the assumption that a simple return tothe status quo ended the empire-wide debate on the very definition andfunction, not only of q:n<n and fiqh, but of the Shar;6a as an abstraction.The radical re-imagining of this abstraction in the apocalyptic period andbeyond produced not just a consciously Ottoman q:n<n, but aconsciously Ottoman Shar;6a, to be distinguished from that of rivalSunni powers, past and present.

11 Hanna, ‘Administration of Courts’, 47.12 See L. Peirce, Morality Tales: Law and Gender in the Ottoman Court of

Aintab (Berkeley: University of California Press, 2003); Buzov, ‘The Lawgiver’.13 Ibid, 60.

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That said, the conceptual language used to describe and classify themodalities of this phenomenon—‘codification’, ‘streamlining’ or‘Islamizing’—while useful, fails to draw the researcher’s eye to thebroader connotations.14 In acquiring and canonizing an Ottoman ‘legal

tradition’, the Empire’s jurists were not merely ‘harmonizing’ betweenIslamic law and state q:n<n, or belatedly discovering Islamic legalorthodoxy, they were in fact inventing it.

The terms ‘orthodoxy’ and ‘orthopraxy’ have held a vexed position inIslamic Studies, due to ‘a history of imprecision and collusion intheological axe-grinding’.15 To speak of orthodoxy is to emphasize theimportance of ‘correct opinion’ over and above the importance of orthopraxy, or ‘correct conduct,’ a concept more conducive to the studyof Catholicism or even the emergence of the Orthodox sect of Judaism in

the late eighteenth century. In the case of Islam, however, M. Hodgson,W. C. Smith, M. Watt and I. Goldziher, to name but a few, have notedthat the association often made between orthodoxy and Sunni thought isa liability rather than an asset. Even within Sunnism, the term invariablyencourages the view that one faction/doctrine is more correct thananother. A staple conceptual trope encountered in much of thefoundational secondary literature on the Ottoman state, for example,presumes that the Arab heartland is/was the bastion of ‘Sunniorthodoxy’. The objections of Arab ulema to Ottoman reforms are

persistently framed, therefore, in terms of a rivalry between q:n<n‘heterodoxy’ and Shar;6a ‘ orthodoxy’. It is well known that Ottomanjudicial reforms triggered opposition from Syrian and Egyptian juristswho bemoaned what they regarded as the demise of Islam under theOttomans. But the tendency to view one side of the conflict as heterodoxand the other as orthodox suggests the existence of a clearly delineatedorthodoxy (usually legalistic and even then bereft of any nuance) to bemeasured against an equally obvious heterodoxy.

14 See U. Heyd, Studies in Old Ottoman Criminal Law (ed. V. L. Menage;Oxford: Clarendon Press, 1973); R. Repp, The Mufti of Istanbul: A Study in theDevelopment of the Ottoman Learned Hierarchy (Ithaca: Oxford OrientalInstitute Monographs, no. 8, 1986); id. ‘Q:n<n and Shar;6a in the OttomanContext’ in Aziz al-Azmeh (ed.), Islamic Law: Social and Historical Contexts(London: Routledge, 1988), 125–43; in the case of Muslim India see M. R.Pirbhai, ‘British Indian Reform and Pre-Colonial Trends in Islamic Jurisprudence’, Journal of Asian History 42/1 (2008): 36–63.

15 M. B. Wilson, ‘The Failure of Nomenclature: The Concept of Orthodoxy inthe Study of Islam’, Comparative Islamic Studies 3/2 (2007), 169.


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Predictably, it is the objections of Egyptian or Syrian ulema that areviewed as templates of Muslim orthodoxy.16 However, in view of the factthat traditional Islamic jurisprudence does not lend itself to notions of ‘orthodoxy’, this is highly problematic. In fact, fiqh (jurisprudence) is

more accurately characterized as the by-product of an orthoprax legaldiscourse in which ‘correct conduct’ is emphasized over and above‘correct opinion’.17 Because human interpretations of ‘God’s will’ aresubject to fallacy and error, Sunni jurisprudence has held theseinterpretations to be mere approximations of the latter. This is not tosuggest that opposing views advocating a more unified madhhab couldnot be found, only to assert that the majority opinion, and indeed thevery structure of the system of legal reasoning, remained orthoprax.Within the boundaries of the four Sunni schools of law, therefore, the

circulation of normative opinion is not only possible but actual. Andwhile each school may hold its own views on that which constitutescorrect conduct, all positions are, given sufficient consensus, equallysound. Indeed, the only orthodoxy one may speak of in Islamic law ismethodological. A consensus on the methods by which the law is derived(uB<l al-fiqh) exists , but not necessarily on the legal opinions derivedtherefrom.

For my purposes, therefore, a more useful paradigm for framing theconflicts under study is that of ‘antagonistic Shar;6as’. The Shar;6a of the

Cairene jurists adheres to the traditional juristic view of the madh:hib asco-equal in authority and of q:n<n as established local practice. That of the Ottomans, on the other hand, is innovative and re-conceives of themadh:hib as an authoritative hierarchy with the Hanafi school at itsapex and of q:n<n as a codified law authored in the imperial centre andexported to the provinces.

While the construction of an Ottoman legal orthodoxy was a highlyinnovative venture in Islamic history, innovation (bid 6a) was neverthe word used by the empire’s spokesmen. Instead of characterizing itself

as an innovative state, a label consigned to it by many of its opponents

16 M. Winter, ‘Ottoman Occupation’, 510. Many of his views are derived fromEgyptian sources, described in another article by him: ‘Attitudes Toward theOttomans in Egyptian Historiography during the Ottoman Rule’ in Kemal Cicek(ed.), The Great Ottoman-Turkish Civilization (Ankara: Yeni Tu ¨ rkiye, 2000), iii.290–9.

17 B. Weis, The Spirit of Islamic Law (Athens: University of Georgia UniversityPress, Press, 1998); P. Bearman, R. Peters and F. Vogel (eds.), The Islamic School

of Law: Evolution, Devolution and Progress (Cambridge: Harvard UniversityPress, 2006).

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in Arab judicial circles,18 the language of Ottoman officialdomreveals that the empire projected itself as a ‘renewer of the faith’. Thisis amply demonstrated in the rhetoric of state propaganda and expres-sively conveyed in the language of ‘tajd ; d ’ (renewal) and ‘takf ; r’

(ex-communication), frequently employed by Ottoman chief judges.Prominent members of the Egyptian judiciary were confronted with thedemand to ‘renew your religion (d ; n)’19 and to follow ‘al-yasaq al-6uthm:n; ’ in the first quarter century of Ottoman rule, and again by mid-century, after Ebu’s-Su’ud’s intervention.20 Accompanying such demandswere the frequent ‘purges’ banishing members of the local judiciary fromthe courts of Cairo, and by a sporadic campaign, albeit largelyunsuccessful, to promote a more ‘unified madhhab’, under the auspicesof the state’s preferred madhhab, the Hanafi school. Again, scholars

generally tend to downplay the importance of this reform on the viabilityof the madhhab system by stressing that the schools of law continued tofunction. However, the madhhabs need not disappear altogether for us toentertain the possibility, however remote, that substantive law was notuntouched by a state system which patronized not only one school of law, but one corporate guild within that school.

It would be misleading, however, to paint Ottoman–Egyptian judicialrelations as perpetually unstable. Indeed, the picture is far more complexas may be gleaned from the biographies of Ottoman chief judges who

were very popular among their peers in Cairo. Some of these individualsappear to have been conciliatory appointments on the heels of anunpopular Ottoman chief judge. Others, however, earned this popularityat the expense of their careers and reputations in Istanbul. As shownahead, many defied their colleagues by upholding maBlaAa, a legal tool of choice for jurists who were less committed to the new Shar;6a orthodoxythan their peers and, more inclined to the Shar;6a of their localcounterparts.

It is beyond the scope of this paper to adduce the success or failure of

this venture, for either the long sixteenth century or beyond. Rather, thispaper seeks to highlight the experiment and to unravel the symbolismemployed in its promotion, however successful or, ultimately, unsuccess-ful. As a further caveat, at no time during this period of legal reformation

18 J. Hathaway, ‘Egypt in the Seventeenth Century’ in The Cambridge Historyof Egypt , ii. 35.

19 Al-Dam;r;, Qu@:t MiBr f ; -l-qarn al-6:shir wa-aw:8il al-qarn al-A:d ; 6ashr,MS. Cairo Tarikh Taymur 2463, D:r al-Kutub al-MiBriyya (Egyptian NationalLibrary), 68. A printed edition of this work also exists: 6Abd al-R:ziq 6A. al-R. 6Is:

and Y<suf M. al-MaAm<di (eds.), Cairo: al-6Arab; li-l-Nashr, 2000.20 Ibn Iy:s, Bad :8i6, 417.


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were the other schools of law suspended for any meaningful stretch of time. Rather, the suspensions were few and far between, rarely lasting formore than a year. Nonetheless, the topic and approach allow us to shedlight on aspects of judicial history as yet unknown, while recasting the

paradigmatic lens through which judicial conflict has thus far beenunderstood. The static polarity generated by the labels generally attachedto such questions, i.e. a ‘tension’ between ‘q:n<n heterodoxy’ and‘Shar;6a orthodoxy’, can thus be avoided.

The works of two primary authors are used in the reconstruction of this judicial history. The first is Ibn Iy:s (d. 1524), a chronicler wellknown to scholars of Ottoman Egypt and the second is a lesser-knownbiographer by the name of AAmad b. AAmad al-Dam;r; (d. 1621-5?). IbnIy:s’ chronicle of the Mamluk state’s demise in 1517 and its transition to

Ottoman rule, has earned an important place in the secondary literature.While generally considered a reliable first-person account, scholars haveconsigned its importance to the early years of Ottoman rule. Capturingthe vagaries of conquest, embodied in chaos, embittered defeat andsystemic disorder, scholars have been understandably reticent to treat itas a long-term harbinger of the Egyptian condition under Ottoman rule.Furthermore, legitimate questions about the objectivity of the narrativehave been raised. For example, although Ibn Iy:s’ narrative conflates hispersonal interests/fate with that of all Egypt, it remains the perspective of

an aristocrat. As a member of the civilian, Mamluk descended nobility(awl :d al-n:s), Ibn Iy:s delivers a predictably partisan, anti-Ottomannarrative. These important cautionary notes notwithstanding, it is notimprudent to ask whether some of the longstanding assumptions thathave pervaded the secondary literature, particularly regarding Ottomanlegal reforms, may benefit from a more serious reading of Ibn Iy :s? Adearth of published sixteenth-century sources has made a comparativeanalysis of Ibn Iy:s’ work rather difficult, however. But a piece of thismissing history found in al-Dam;r;’s manuscript, Qu@:t MiBr fi-l-qarn al-6:shir wa-aw:8il al-qarn al-A:d ; 6ashar (Egypt’s Judges in the Tenth andEarly Eleventh Centuries), helps compensate.

Not unlike Ibn Iy:s, al-Dam;r; was born of privilege, a descendant of the prominent Maliki jurist MuAammad b. M<s: b. 6Is: Kam:l al-D;n al-Dim;r; (1341–1405).21 Given the more than two hundred years thatlapse between Kam:l al-D;n’s and his descendant’s death, we mustdismiss the editorial preface of Qu@:t MiBr which cites the former as ourbiographer’s father. Al-Dam;r; himself identifies the Maliki chief judgeMuAammad b. 6Abd al-Kar;m b . AAmad b. 4idd;q al-Dam;r; as his

21 L. Kopf, ‘Al-Dam;r;’, EI 2 art. (CD ROM edn.).

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grandfather, leaving no doubt that Kam:l al-D;n was his great-grand-father. It is unclear whether our biographer also inherited the professionof his patriarchs, but his sympathies with the Cairene judiciary areplainly evident. He never sides with an Ottoman chief judge against

members of the Egyptian judiciary and is, in that sense, as partisan areporter as Ibn Iy:s. Nonetheless, his narrative provides invaluableinsight on the identities of the individual Ottoman chief q:@;s as well asthe professional rivalries that marked their encounters with Egyptianjudges. Read in tandem with Ibn Iy:s’ history, al-Dam;r;’s accountchallenges many of the assumptions heretofore held, namely that theOttoman state tampered with the legal process but not the law producedfor the duration of the long sixteenth century.

I CONQUEST, CONTINUUM AND RUPTURE

Does the theory that local judicial institutions resisted ‘Ottomanization’,originate with the Ottomans themselves? An overview of the reformsinitiated immediately after the conquest, a description of the open revoltthey provoked as well as the legitimating tactics employed by statebureaucrats in diffusing them, help elucidate the answer. Like the oldtheory of Ottoman political/economic ‘decline’,22 the notion of ‘continuum’, particularly legal continuum, is repeatedly proclaimed inoral and written proclamations. In an environment where the concept of ‘precedent’, encapsulated in the Islamic ideal of Sunna, carried enormouscachet, outward appeals to continuum were assiduously cultivated.

The conquering sultan Selim I (r. 1512–1520) demonstrated hisunderstanding of the importance of precedent when he named Kh:yir

22 Gerber suggests that the notion of ‘decline’ first arose in sixteenth-century

Ottoman naB;Aat literature, when the fifteenth century was idealized as a ‘utopicgolden age’. But this, he argues, is a symptom of the dramatic changes overtakingsociety in the late sixteenth century rather than decline. H. Gerber, State, Societyand Law in Islam (New York: SUNY Press, 1994), 135. C. Fleischer (Bureaucrat and Intellectual in the Ottoman Empire [Princeton: Princeton University Press,1986], 9) wrote that one such writer, Mustafa A ˆ l;, described his own times sodisparagingly because:

he was the child of an age in which the few who were literate and learned could

hope . . . for a rewarding career as a judge, teacher or member of the expanding

bureaucracy. . .

he lived into another age in which the government ranks werecrowded, when basic literacy was more commonly available.


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Bik, a high ranking Mamluk, as Egypt’s first Ottoman governor. Thestability of his reign during this transitory period stood in stark contrastwith that of his Ottoman successor, MuB3af : Pasha. The latter’s efforts to‘Ottomanize’ the province’s administration by implementing new taxes

fueled a crisis so severe that it demanded the personal attention of thesecond most important man in the empire.23

Sultan Su ¨ leyman’s ambitious grand vizier, some would even say thesultan’s co-equal, Ibr:h;m Pasha, arrived in Cairo in 1524 with amandate to assess the causes of unrest and to quell the rebellions. Whathe found was a civil uprising of the ah:l ; (civilian communities) around aset of core demands: a reduction in Ottoman taxes, a return to Mamlukq:n<n and a repeal of Ottoman q:n<n which ‘did not suit the conditionsof al-Diy:r al-MiBriyya’. 24 Notably, the rebels do not call for a repeal of

Ottoman q:n<n and a return to the Shar;6a, as is often implied in thesecondary literature, but for a return to ‘Mamluk q:n<n’.25

In the Ottoman narrative, Ibr:h;m Pasha is sensitive to this populardemand and avails himself of a copy of the former Mamluk sultanQ:ytb:y’s (d. 1468) q:n<n, ostensibly, to harmonize Ottoman q:n<nwith it. His efforts produced one of the most important pieces of Ottoman literature, at once a judicial document and a politicalmanifesto. Buzov has ably shown the preamble to the Q:n<nn:maMiBr to be a philosophical proclamation of caliphal authority as ‘Shadow

of God on Earth’, and the awaited mujaddid (renewer).26

It is also a verytelling, albeit deliberately ambiguous judicial document. U. Heyd notedthat it contained the first explicit statement justifying Ottoman q:n<nand its application.27 However, part of the justification rests on thedocument’s claim to being a syncretic patchwork of 6ask:r; /qa@:6; lawsand Q:ytb:y’s laws.28

Scholars have of course questioned why Q:ytb:y’s laws would besingled out over and above those of a more recent Mamluk Sultan, likeQ:nBuh al-Gh<r; (r. 1501–16) or F<m:n B:y. H. Inalcik speculated that

23 Q:n<nn:ma MiBr (ed. and transl. M. A. Fu8:d; Cairo: Anglo-EgyptianBookshop, 1986), 3–4.

24 Ibid, 5.25 Popular anger was redirected at the Egyptian fuqah:8 who were accused of

fearing for their ‘seats’ instead of safeguarding the ‘rights of Muslims againstthese edicts (rus<m)’. Ibn Iy:s, Bad :8i 6, 452. The rus<m in question are the courtfees.

26 Buzov, ‘The Lawgiver’, 58.27 U. Heyd, ‘Kanu ˆ n and Sharı 6a in Old Ottoman Criminal Justice’, Proceedings

of the Israel Academy of Sciences and Humanities, 3/1 (1967), 2–3.28 Q:n<nn:ma MiBr, 5.

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there must have been a ‘codex of Qaytbay’s laws’ in existence.29 Behrens-Abouseif, however, dismissed the possibility, arguing that there isnothing to indicate that he was a legislator of any importance.30 Acareful reading of the text of the Q:n<nn:ma supports D. Behrens-

Abouseif’s position, for nowhere does it actually refer to a ‘codex of Qaytbay’, but to ‘the 6:da (practice) and q:n<n that were applied in thetime of Qaytbay’.31

Q:ytb:y becomes a likely candidate when we consider that Selim hadwaged jih:d against the last Mamluk sultans, labeling them kuff :r, acharge that effectively stripped them of legislative authority. Bayezid II(r. 1481–1512), it should be mentioned, had also accused Q:ytb:y of ‘heresy’ (il A:d ), but that was a lesser charge made by a different Sultan. Itstands to reason that the doctrinal paradoxes that would have been

generated by enacting the q:n<n of a declared k:fir like Q:nBuh al-Gh<r;are less imminent in the case of a remote ‘heretic’ like Q:ytb:y.

While the preamble to the Q:n<nn:ma MiBr is an innovative andimportant document, the legal code itself, its method of compilation andsubstantive arrangement are not. By promulgating the documentSu ¨ leyman was not innovating but replicating patterns of conquest longsince established by his predecessors. C. Imber writes:

When a sultan conquered new lands, he would order the compilation of both a

new cadastral survey and a new law-book for the area. The new law-book

would, as a rule, simply list pre-conquest taxes and note whether these had been

confirmed or abolished. In the provinces of eastern and south-eastern Anatolia,

for example, which Selim I (1512–1520) conquered between 1514 and 1516, the

first Ottoman law books for the area normally state in their preambles that they

are compiled ‘in accordance with the qanun of Hasan Padishah,’ a reference to

the laws in force in the days of the Akkoyunlu Sultan, Uzun Hasan, who had died

in 1478.32

U. Heyd makes the important observation, however, that they referred

to the imposition of their ‘law-books’ as tajd ; d (renewal), rather than as‘q:n<n jad ; d ’ (new).33

29 See H. Inalcik, ‘ qK:n<nn:me’, EI 2 (CD ROM edn.).30 D. Behrens-Abouseif, Egypt’s Adjustment to Ottoman Rule: Institutions,

Waqfs and Architecture in Cairo – 16th and 17th Centuries (Leiden: E.J. Brill,1994), 35–45.

31 Q:n<nn:ma MiBr, 32–3.32 C. Imber, Ebu’s-Su‘ud, The Islamic Legal Tradition (Stanford: Stanford

University Press, 1997), 44.33 U. Heyd, Old Ottoman Criminal Law, 169.


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But to what extent was this self-professed syncretic renewal genuineand to what extent a legal fiction? On the one hand, the Q:n<nn:maMiBr speaks of activating the laws of Q:ytb:y, and on the other of enacting in Cairo the q:n<n that is ‘applied (ma6m<l bih; ) in the province

of R<m’, indicating that ‘copies of it [should] be preserved in the D; w:nMiBr’.34 A double movement is thus at work in the Q:n<nn:ma MiBr. Inthe first, it appears to sanction the appropriation/integration of localpractice and in the second to replicate and transmit imperial q:n<n fromcentre to periphery.

II THE DEMOTION OF THE LOCAL JUDICIARY

The impact of the conquest on the legal process, the law produced andthe lawmakers was both immediate and profound. Even before theconquest of Egypt, it was rumored that Sultan Selim planned to abolishall legal schools in Syria, which fell in 1516. In 1518 the rumours werepartially confirmed that the sultan had suspended all but the Hanafischool in Damascus (ab3 ala min al-Sh:m al-madh:hib al-thal :tha), asper the ‘custom in his [Selim’s] lands’ (6:datih f ; bil :dih).35 In 1520, newsof the unfortunate fate of the Shafi6i q:@; al-qu@:t, Wal; al-D;n

MuAammad b. Shih:b al-D;n AAmad Ibn Farf <r al-Dimashq; at thehands of the new Ottoman governor of Damascus, Am;r J:nbird; al-Ghaz:l;, further alarmed jurists in Cairo. Purportedly, the Shafi6i judgehad been mercilessly persecuted by al-Ghaz:l; and given an ultimatum torule according to the Hanafi rite or forfeit his office (his life according toother reports).36 Ibn Farf <r fled Damascus to Aleppo, from where hewrote directly to Sultan Selim complaining of the indignities he hadsuffered at the hands of al-Ghaz:l;. Selim responded with a mars<mconferring on Ibn Farf <r the post of q:@; of Aleppo, where he

permanently re-settled with his wife and children.

37

Whether exaggerated or not, the main events surrounding Ibn Farf <r’scareer, his exile and demotion from the chief judgeship of Damascus tothe chief judgeship of a provincial town, symbolize the very realtribulations of the elite Damascene judiciary. The Cairene judiciary feltthe impact of the conquest no less profoundly. The first to feel the blowsof reform were the four chief judges (qu@:t al-qu@:t ) of the four schools

34 Q:n<nn:ma MiBr, 34.35 Ibn Iy:s, Bad :8i 6, 243.36 Ibid.37 Ibid, 340.

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of law, who were summarily dismissed from office in the reign of Selim.It would be a full four years before they were re-instated again by theOttoman q:@; al-qu@:t, MuAammad Ealab; in 1521, early intoSu ¨ leyman’s reign. But they no longer served in the capacity of four, co-

equal chief judges of their respective schools. Rather, they werepermanently demoted to the status of deputy judges to the chief Ottoman judge.38 A year later, in 1522, a mars<m (sultanic decree)announced the bifurcation of the Ottoman chief judge’s position (q:@; al-qu@:3 ) into two offices, that of q:@; 6askar (chief of the military courts)and that of q:@; 6arab (chief of the civilian courts). Both positions werereserved for Ottoman Hanafis.39 Yet again, the four qu@:t al-qu@:t weredismissed and formally re-instated in August 1523 of the following yearas the deputies of the q:@; 6arab. The point to be made is that the

demotion of Egypt’s chief judges to the status of deputies of the chief Ottoman judge was both immediate and permanent.

It is the mainstay of the Egyptian judiciary, however, the deputies(n:8ibs) of the chief judges, who fared even worse. In the year of theconquest, 1517, the Shafi6i chief judge, Kam:l al-D;n al-Faw;l, wasordered to dismiss all but four of his deputy judges.40 No explanation isgiven for the targeting of the Shafi6i deputies. However, two years later,in 1519, the governor ordered all four chief judges of the local madhhabsto reduce the number of deputy judges in their madhhabs. The Shafi6i

q:@; was allowed to retain five, the Hanafi two, the Maliki seven and theHanbali three. Still unsatisfied with the conduct of the remaining deputyjudges, the same governor in Dh< l-Eijja 1520 of the following year,warned the ‘four qadis to control their nuww:b’.41 On the heels of thislatest warning, each madhhab was allowed to retain seven n:8ibs andtwo sh:hid s, in line with the demands of Ottoman yasaq.

The campaign to reduce the number of deputy judges from all theschools of law was an obvious attempt to bolster the authority of theHanafi Ottoman chief judge and his guild members while constraining

the only element in Egyptian society that could impede Ottoman legalreforms. Egypt’s judiciary had never experienced anything comparable tothis state-directed hostility, concludes Ibn Iy:s.

38 Al-Dam;r;, Qud :3 MiBr, 221.39 Sayyid; Jalab;, ‘the greatest of Sultan Suleyman’s q:@;s and their most

senior’, was announced as the first ‘qadi 6askar’: Ibn Iy:s, Bad :8i6 , 453–4. Theq:@; 6askar was the top legal authority in Cairo. Appointed from Istanbul, histenure was recorded in the sijill s: al-Bakr; al-4idd;q;, al-Nuzha al-zahiyya, 36.

40 Ibid, 282.41 Ibn Iy:s, Bad :8i6, 418–20.


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Nonetheless, the governor’s order of 1520, insofar as it permitted farhigher numbers of Maliki, Shafi6i and Hanbali n:8ibs than the previousedict , is perhaps indication enough that the attempt to exclude localmembers of the judiciary was simply untenable. Moreover, the Egyptian

judicial establishment, which jealously guarded its authority andprivilege, was anything but passive in the face of this campaign. IbnIy:s notes that no sooner would an order arrive stipulating a reduction inthe number of n:8ibs before their numbers had once again multiplied.But Cairo’s chief judges and their deputies were not alone as the net wascast wider to include wak; l s (loosely translated as attorneys or legalrepresentatives) and sh:hid s (a permanent body of court accreditedwitnesses), who were also dismissed in unprecedented numbers. Thecharge against them, as individuals and as a class, was that they were

‘corrupt’.42

III COURT PURGES

Court purges were a by-product of the state’s wish to exert its dominionover the law and of the local judiciary’s will to resist such dominion. Theobdurate refusal of the Cairene judiciary to abide by sultanic edicts, andthe heavy-handed manner in which the state penalized certain membersof the profession for their resistance, explains both the frequency and theduration of these campaigns. It was never the intention to permanentlydisplace the local judiciary, but to enforce minimal compliance with statedirectives in the area of law. But such compliance was often difficult togarner—as demonstrated by the Sultanic edict banning marriage betweenOttoman soldiers and Mamluk women (nis:8 al-atr:k).

The ban, passed in the early years of the conquest, sought to forestallpotential alliances between the imperial soldiery and local elites, thereby

minimizing the risk of provincial secession. But such marriages continuedto occur as ‘none of Egypt’s judges paid [the sultan] heed, nor did thewitnesses’.43 To reinvigorate his edict, the Sultan personally called on hissoldiers to divorce the women of ahl MiBr, or face immediate executionby hanging. Only some complied reports Ibn Iy:s, but fails to extrapolateon the fate of those who remained non-compliant. He does, however,describe the humiliating punishment meted out to judges who wereguilty of violating the ban.

42 Ibid, 55.43 Ibid, 184.

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In 1517 a non-compliant Shafi6i judge was formally charged, butsurprisingly, not with violating sultanic law. Rather, the charges againsthim centred on the claim that he had violated a basic principle of fiqh.According to the chief Ottoman judge, the latter had ratified the

marriage of an Ottoman soldier to a widow without first ascertainingthat she had fulfilled her obligatory waiting period (6idda). As anexample to others, the offending judge was beaten and paraded aroundCairo saddled backwards on a donkey.44

It is significant that the Ottoman chief judge used a fiqh-based pretextfor punishing the Shafi6i judge rather than citing the real reasons for hiscensure—the violation of sultanic law. What might appear to be acircuitous process of conviction suggests that Egyptian jurists werearticulating their objections to the edict on the grounds that preventing

two Muslims, who were otherwise eligible, from entering into marriagewas in direct conflict with Islamic law. Presumably unwilling/unable toassert the co-equality of q:n<n and fiqh-based rulings, the Ottomanjudge found fault with his adversary’s ruling on the very same basis—thathe too had failed to meet the criteria of Islamic law.

Further proof of the state’s willingness to banish rebellious judges fromlegal practice came in Rama@:n 1519, when the Shafi6i chief judge,Kam:l al-D;n al-Faw;l attended the monthly majlis to plead the case of his n:8ib, N<r al-D;n 6Al; al-Maym<n;, who had been exiled by the

Governor of Cairo to Damanh<r. Al-Faw;l petitioned for the latter’sright to return to Cairo, but was granted only partial success. While al-Maym<n; could return to Cairo, he could ‘never’ practice law again.45

For Ibn Iy:s, it is one more example of how ‘the rulings (rasm) of Islam’sjudges have been effaced’.46 While we learn little of the particulars of thecase, its conclusion is revealing. In the eyes of the Ottoman chief judge,al-Maym<n; had ‘misused’ his legal authority and his license to practicewas accordingly revoked.

The assumption that such incidents exemplify the vagaries of conquest

alone is put to rest by al-Dam;r;. In 1591 the chief Ottoman judge al-Afand; Easan earned wide condemnation in Cairo for instructing hisacting deputy to dismiss n:8ibs and shuh<d from the courts even beforehis arrival from Istanbul. Mercifully, from al-Dam;r;’s perspective, hedied at sea ‘and so the Muslims were spared his evil-doing’.47 But even in

44 Ibid.45 Ibid, 187.46 Ibid, 418.47 Al-Dam;r;, Qu@:t MiBr, 8–9.


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the face of Easan’s premature death, the damage done by his deputywarranted the poem:

Oceans have crashed upon the fuqah:8especially its judges and our witnesses.48

While the judge who was appointed in Easan’s stead was a moreconciliatory figure, the worst had yet to come. In 1600, eight years afterEasan’s ill-fated appointment, one of the most infamous chief judges,6Abd al-Wahh:b b. Ibr:h;m al-R<m; al-Eanaf ; arrived with a similarmandate. His first order of business was to purge the courts of most of their witnesses and deputy judges.49 They remained barred from servicefor the remainder of his year-long tenure. Al-Dam;r; noted that 6Abd al-Wahh:b’s ‘offences’ in the eyes of the local judiciary were not limited to

court purges. In a throwback to the kinds of excesses described by IbnIy:s, 6Abd al-Wahh:b also interfered with the administration of waqf endowments and imposed a harsh criminal code, meting out severepunishment for the slightest of crimes. In other words, he exceeded thepenalties prescribed by the Shar;6a for offences such as theft orintoxication. Moreover, he would not allow the remaining court staff to collect more than three anB:f for their services, thus bringing addedpoverty on those who remained in judicial service. Egypt, concludes al-Dam;r;, had not seen a judge of his kind since the Ottoman conquest.50

Not surprisingly, the poems satirizing 6Abd al-Wahh:b are numerous andbiting:

Cut, cut, you cut the livelihood of the shuh<d you swapped known customs (al-ta 6:ruf ) with denial ( juA<d ) [brought] death to

rain (al-mugh; th) and that which is known/good (al-ma6r<f ).51

News of his 6azl (termination of tenure) arrived in 1601.It is worth noting that al-Dam;r; ends this long litany of charges and

complaints by stressing that 6Abd al-Wahh:b was not without personalmerit, for he never accepted bribes. This is a recurring theme in al-Dam;r;’s biography. Ottoman judges, who were on the receiving end of the most scathing, seemingly personal attacks, are redeemed in the end as‘persons of integrity’. One can only conclude, therefore, that the rivalriesdescribed were never personal in nature but firmly grounded in‘antagonistic’ legal doctrines. The doctrines in question, whetherpertaining to legal processes or substantive law, were never static

48 Ibid.49 Ibid, 24.50 Ibid, 102.51 Ibid, 103.

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however, and neither were relations between local jurists and Ottomanjudges. It is not uncommon to find an exceedingly unpopular judgereplaced with a more conciliatory figure that would temper or evenreverse his predecessor’s policies. To some extent this reflects the personal

discretion that individual Ottoman judges exercised in dispensing theduties of their office. But it also suggests that the Porte’s threshold of tolerance for judicial conflict was not limitless.

6Abd al-Wahh:b’s volatile tenure, for example, was followed up by thatof the conciliatory 6Uthm:n b. MuAammad Pasha, known as Raw: z:da,who had the sole distinction of presiding over the chief judgeship of Egypt three times—in 1593, in 1595 and finally in 1601.52 Raw: z:da’sfirst undertaking was to reverse his predecessor’s policies by ordering thewitnesses and judges back to work, earning both gratitude and support

among their ranks.53

Typically, each of his appointments followed on theheels of a particularly confrontational episode in Ottoman–Egyptianjudicial relations.54

In describing these clashes and purges, neither Ibn Iy:s nor al-Dam;r;do more than voice their chagrin and sympathy for the injustices sufferedby local judges. Neither, however, describes the impact of these clashesand purges on the day-to-day function of the courts. Who officiated overthe courts in the absence of local judges, witnesses and notaries? Did theOttoman chief judge’s Hanafi deputies (and their personal coterie of

notaries and witnesses) replace local judges? Or were the numerousneighbourhood courts closed for the interim of these campaigns? If theywere closed, was al-B:b al-62l; (seat of the Ottoman chief judge) the onlycourt open to the public? There are no obvious answers to thesequestions. But, given the logistical problems inherent in the closure of allbut one of Cairo’s courts, we can safely discount that possibility. Thehigh court alone could not have met the legal needs of one of theEmpire’s most populous cities. In describing a purge in the late sixteenthcentury, al-Dam;r; does mention, however, that the only venue in which

people had access to non-Hanafi judges was the high court, suggestingthat other courts continued to function, but under the auspices of Hanafi

52 Ibid, 117.53 Most significantly, on his departure from Egypt, Raw: z:da sought out a

copy of the last section of Ibn Nujaym’s al-BaAr al-r:8iq, SharA al-Kanz andpublicly asked God’s forgiveness for the sins committed by 6Abd al-Wahh:b. IbnNujaym’s work, considered a definitive sixteenth-century Hanafi text, attemptedto grant custom a formal place in Islamic legal theory. It is not surprising,therefore, that Raw: z:da was praised as a scholar who upheld ‘public welfare

and custom’ (al-maB:liA wa-l-ma6r<f ). Ibid.54 Ibid.


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judges alone. Presumably, these would have been members of the chief Ottoman judge’s personal entourage rather than local Hanafi judges. Thenext question that comes to mind is, what impact did this have on thelaw produced? The obvious answer is that it would have greatly

hampered the application of the non-Hanafi law for the duration of thecampaign.

The link between court purges and a decline in the authority of themadhhabs is most apparent in the late sixteenth century. Al-Dam;r;reserves his harshest criticisms for the progenitor of this policy, the same6Abd al-Wahh:b who purged the courts in 1600 of judges, witnesses andnotaries. During his yearlong tenure, 6Abd al-Wahh:b not only purgedthe courts of their staff, he also formally suspended the non-Hanafischools of law.55 In effect, Cairo’s various communities, most of whom

were not adherents of Hanafism, had no recourse to Shafi‘i, Hanbali orMaliki law for the better part of a year.

IV SUBVERSION AND IJTIH 2D

Court purges notwithstanding, there were other means by which thelocal judiciary’s independence was curbed. A policy impugning the

capacity of judges to exercise independent ijtih:d was one such method.As a prerogative that would have undermined the state’s bid to shape thelaw produced, ijtih:d was viewed as potentially subversive. This isespecially true in the first decades of Su ¨ leyman’s rule and at the peak of his venture in messianic kingship and aspiration to the position of supreme mujtahid .56 The example of Shams al-D;n MuAammad al-Laqan;, a Maliki judge, who refused to accept the position of deputy(n:8ib) to the chief Ottoman judge in 1524, clearly demonstrates thepolitical liability of assuming the title or role of a mujtahid . Soon after

being coerced into the position of deputy to the chief Hanafi judge, ‘asper the custom (6:d :t ) of the Anatolian judges (qu@:t al-arw:m)’,57 al-Laqan;’s rulings were challenged on the grounds that they were based onweak Aad ; th (qawl ). His rebuttal to the chief Ottoman judge was that hewas an independent scholar, entitled to engage in unfettered, indepen-dent reasoning (ijtih:d mu3 laq):58

55 Ibid, 24–5; 100–1.56 See, Fleischer, ‘Lawgiver as Messiah’, 159–83.57 Ibid, 192.58 The definition and understanding of ijtih:d mu3 laq changes from the

classical period to the middle period. By this time, it is generally understood as

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Among us [we hold] the principle that if a judge issues a ruling on the basis of a

weak opinion, he renders that opinion strong and it enters into practice (ma6m<l

bih; ) and I have attained a station [that will not permit] my rulings to be

contradicted when I am the expounder (sh:riA) of the madhhab. I have no need

of the post [deputy judge] and have exiled myself . . .

exiled myself . . .

exiledmyself.59

Each time al-Laqan; proclaimed his own exile, the Chief Judgeinterjected, ‘I have reinstated you’. Al-Laqan;’s insistence on his right toijith:d and his reluctance to accept a demotion in rank (as deputy to thechief Ottoman judge) tells us that one was linked to the other. In otherwords, a deputy judge lacked the right to engage in ijtih:d mu3 laq. Whileal-Dam;r; never tells us what substantive issue or ruling was at stake inthe dispute, he does imply that al-Laqan;’s ruling was overturned as thelatter died of ‘fever’ (a euphemism for heartbreak) soon after.

The story appears to be cross-referenced in al-Sha6r:n;’s chronicle,however, where the latter describes the opposition generated by theimposition of a certain q:n<n.60 The q:n<n was regarded as a dubiouslegal code with roots in ‘foreign’ customs such that scholars whoopposed them were immortalized in the chronicles and biographies of thetime. Al-Sha6r:n;, for example, commends the early sixteenth-centuryFakhr al-D;n al-Sunbat;, who resigned his post as judge when he learnedthat the q:n<n (in this case, the court fees/ rus<m) would be imposed onjudges. He retired to his village, writes al-Sha6r:n;, where he heard casesas a far@ kif :ya (a religious obligation which one or more individualsmay undertake on behalf of the community) free of charge.61

The rasm in question was the q:n<n of 1521, imposing a marriagetax—60 niBf for a virgin and 30 for marriage to a widow or divorcee—onthe populace. A portion of this was allocated to the 6:qid , the sh:hid andthe rest remitted to the governor.62 Ibn Iy:s writes that q:@;s were givenlittle choice but to ‘follow al-yasaq al-6Uthm:n; ’.63 Seeing it as a penaltyagainst marriage and divorce, people refused to ratify marriages under

the right of scholars to engage in independent reasoning within the boundaries of the schools’ methodology and hermeneutics. For a fuller discussion on the earlyconstruction and evolution of ijtih:d see, W. B. Hallaq, ‘Was the Gate of Ijtih:dClosed?’ International Journal of Middle East Studies, 16/1 (Mar. 1984): 3–41.

59 Ibid, 194.60 Winter, Society and Religion, 244.61 Ibid.62 Furthermore, no divorce or marriage would be ratified outside of one of the

four chief judges’ courts. Ibn Iy:s, Bad :8i6, 417.63 Ibid, 418.


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the new regulations, and for a time, he writes, ‘the Sunna of marriagewas discontinued’.64

Al-Azhar’s scholars vehemently protested against the marriage tax.Almost one hundred of them, including al-Laqan;, gathered at the

governor Kh:yir Bik’s residence to voice their objections. Quotingnumerous Aad ; th, they argued that the Sunna of the Prophet clearlydemonstrated that marriage could be entered into with a simpleexchange of silver rings, six anB:f of silver and the reading of a versefrom the holy book. As such, they continued, the new tax violated thetenets of Islamic law and, more practically, made the costs tooprohibitive as witnesses and muqaddims also had to be paid.Unswayed, the governor made it painfully clear that the decision wasnot his to make: ‘Who am I? The Sultan has decreed such . . . In Egypt you

are to follow al-yasaq al-6Uthm:n; ’. To which the Azhari Shaykh 6Is:,replied, ‘this is the yasaq of kufr’, a comment which led to his arrest untila group of am; rs interceded on his behalf.65 Undaunted, the juristscontinued to debate until finally the Governor indicated his power-lessness to deviate from the q:n<n by conceding to none other than al-Laqan;: ‘I fear for my own neck more than I fear for yours. Go in God’sname.’66 Finally, the jurists departed, but not before they had threatenedto shut the courts of Cairo and to send to Sultan Su ¨ leyman an officialdelegation to inform him of the travesties taking place. Greatly agitated,

the Governor sent an emissary to Istanbul, presumably to pre-empt theAzhari delegation and to seek further instructions. As no changes orrevisions were made to the q:n<n, the Porte’s response seems self-evident. Nonetheless, the marriage tax continued to gall local jurists,earning mention in several chronicles and receiving extensive treatmentin one of the most important sixteenth-century juridical works.67

Ibn Nujaym’s al-Ashb:h wa-l-naC:8ir devotes several pages to thequestion of what is/is not acceptable in the compensation due to judges.As part of his critique of the Ottoman marriage tax, Ibn Nujaym poses

64 Ibid.65 Ibid, 427.66 Ibid.67 By the end of the century, the matter continued to rankle locals, judging by

al-Sha6r:n;’s warning: ‘pay willingly the money due to the q:n<n and the qass:m.If one does not give of his free will, he will give in spite of himself. He is wise whoknows his time’: Winter, Egyptian Society Under Ottoman Law, 243. Al-Sha6ranicommends Fakhr al-D;n al-Sunbat; who abdicated his position as q:@; when helearned that judges would be required to enforce q:n<n. He retired to his village

where he heard cases free of charge as a fard kif :ya (communal obligation): ibid,244.

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the question: ‘Is it acceptable for a judge to accept gifts?’ Only localcustom, he concludes, can determine the value of the ‘gift’ bestowedupon judges.68 Judges cannot, therefore, accept payment exceeding theamount stipulated by local custom.69 If the amount received exceeds that

established by local custom, the difference should be returned. IbnNujaym’s willingness to label changes in this sphere as bid 6a, must,therefore, be read as a pointed attack on Ottoman q:n<n.70 Refuting thepossibility that a particular (kh:BB) custom originating in one locale canever serve as the basis for a general ruling (q:n<n), Ibn Nujaym quotesal-Bukh:r;’s maxim that a universal 6urf cannot be promulgated on thebasis of a local custom and effectively uses this argument to de-legitimatethe application of Anatolian q:n<n in Egypt as bid 6a.71

For their part, the Ottomans never employed the term bid 6a to refer to

their legal reforms, not even positive bid 6a. Innovation could onlyoriginate in non-Sultanic custom and could be classified as ‘recognizedinnovation and custom (bid 6at-i ma6rufe) and a rejected innovation andcustom (bid 6at-i merd <de)’. For more onerous innovations the term‘‘injustice’’ (

i hayf ), ‘‘oppression’’ (Culm) or ‘‘foulness’’ (sen:6at ) were

used.’72 Heyd writes: ‘It is to be noticed that the Shari6a term bid 6at inofficial Ottoman usage signifies not only innovations contrary to thereligious law but also those in contravention of the k:n<n.’73 Innovationthrough q:n<n could never constitute bid 6a, therefore, only tajd ; d

(renewal).Needless to say, from the perspective of Arab jurists such as Ibn

Nujaym, the application of the q:n<n did entail bid 6a. When local ulemacharged that Ottoman q:n<n was in violation of the Shar;6a , the essenceof their complaints was prefaced on the argument that codified customsimported from Anatolia or elsewhere (i.e. q:n<n) were invalidated by thefirst rule governing the validity of 6:da/ 6urf , i.e. that it must represent acommon and recurrent phenomenon. In Anatolia, the legality of Ottoman q:n<n, which met the Shar;6a’s condition and conformed to

68 Ibn Nujaym, al-Ashb:h wa-l-naC:8ir (Beirut: D:r al-Kutub al-6Ilmiyya,1983), 95.

69 Ibid, 98.70 Using the case of weights and measurements Ibn Nujaym argues that a

general ruling cannot be made on the basis of a local custom. Ibn Nujaym,al-Ashb:h wa-l-naC:8ir, 102.

71 Ibid.72 H. Inalcik, ‘Suleyman the Lawgiver and Ottoman Law’, Archivum

Ottomanicum 1 (1969), 131.73 Heyd, Old Ottoman Criminal Law, 169.


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local practice, was in no doubt. In Egypt and other Arab provinces, theq:n<n (originating in and flowing from Turco-sultanic traditions) did notconform to the established customary norms of the new provinces,transgressing into areas governed by local custom.

Concurrently, Ottoman chief judges who imposed the q:n<n withvigour, were posthumously disparaged. MuAammad Sh:h Ibn Eazm, forexample, arrived in 1563 and soon gained notoriety for his rigid andstern application of the q:n<n. His authority was so absolute, writes al-Dam;r;, that even the governor was diminished in stature next to him. Heimplemented the ‘n:m<s’ (alternative name for q:n<n) till heads were‘bowed’ (3 a83 a8at ).74 Extremely unpopular, this judge inspired many asatiric poem against him and his ‘siy:sa’. Al-Dam;r; attempts to explainthis judge’s behaviour by citing his ignorance of the nature of the

communities of Egypt (ah:l ; MiBr), who were used to ‘lenience andunaccustomed to his ways’. But a description of the rewards bestowedupon Ibn Eazm when he returned to Istanbul, undermines the claim thathe was merely acting out of ‘ignorance’. It bears repeating that Ibn Eazmwas rewarded, not for his individual initiative, but for pursuing abroader agenda that enjoyed a measure of consensus and support in theimperial centre.

Again, such confrontations were not limited to the first quarter of thecentury, but were a consistent feature of the first hundred years of

Ottoman rule. Najm al-D;n MuAammad ibn AAmad al-Ghay3; (d. 1573/ 74), who held the prestigious post of teacher at al-4:liAiyya al-Najmiyya,defended al-Sha6r:n; (d. 1565), a Suf ; and an 6:lim, when the latter wasaccused of engaging in ijtih:d mu3 laq.75 Al-Laqan;’s unfortunate fate,and al-Shar6:n;’s brush with Ottoman officials, illustrates that jurists whowere perceived (or who perceived themselves) as great mujtahid s couldbe found in the sixteenth century, and more importantly, that theiractivities often courted confrontation with the state.

Even without engaging in outright ijtih:d , local jurists earned the

censure of the state by merely challenging or critiquing Ottoman judicialpolicy. An example is the important Hanafi scholar, 6Al; N<r al-D;n al-Far:buls;, who rose to prominence when he challenged the chief judge,MuAammad Ibn Ily:s, or Jiw; z:da’s, right to allow the ‘exchange’ of waqf .76 Al-Far:buls; was dismissed from service and prohibited frompractising law, but continued to show defiance and to issue fatw:s until

74 Al-Dam;r;, Qu@:t MiBr, 232.75 Winter, Society and Religion, 222.76 Ibid, 223.

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an order of execution was issued against him. ‘He died the day itarrived’.77

Part and parcel of the application of Ottoman q:n<n were incursionsinto the domain of personal morality (or the rights of God). Both Ibn Iy:s

and al-Dam;r; describe episodic bouts of puritanical zeal meant tobolster the flagging moral rectitude of Cairo’s civilian population.78

Intoxication figured prominently in these campaigns, as does the conductof women and of dhimm; s. That said, the bounds of ‘ideal’ moralitywere in a constant state of flux. Coffee, for example, went from an illicitbrew, to a staple drink and source of commercial enterprise by theseventeenth century.

Similarly, intoxicants such as alcohol appear to have been tolerated inone era and prohibited unequivocally in another. From al-Dam;r;’s

manuscript, we learn that in 1579 the chief judge Eusayn b. MuAammadHuB:m al-D;n Qaracli-Zada, was a strict prohibitionist and ‘no scent of intoxicant was smelled in Cairo in his time’.79 Well into the seventeenthcentury the governor, Eusayn Pasha (r. 1637) banned all forms of smoking and subsequently killed fifty men caught violating the ban, onthe spot.80 Nonetheless, Qaracli-Zada was well respected and well likedby the communities of Cairo because he exercised strict control upon thegovernor and his men such that they were unable to ‘deviate from hisorders and rulings’. 81 The same praise is heaped upon his deputies

(n:8ibs). Locals, both jurists and laypersons, were willing, therefore, tooverlook their discomfiture with the strict moral codes propounded bycertain Ottoman judges if they could be guaranteed that random andillegal taxes/punishments imposed by Aukk:m al-siy:sa on the ordinarypeople, would be lifted.82

77 Each time a judge incurs the death penalty in al-Dam;r;’s work, it arrives on

the same day that the culprit dies of either natural causes or of ‘fever’. This is anobvious literary device indicating that the sentences had more symbolic thanactual significance as no judge was ever actually executed.

78 Ibid.79 Ibid, 17. Again, when it came to the consumption of intoxicants, judicial

opinion varied. See Ibn Taymiyya, al-Siy:sa al-shar6iyya (Beirut: D:r al-Kut<b al-6Arabiyya, 1966), 120; al-M:ward;, The Ordinances of Government (al-AAk:mal-sul 3:niyya) (transl. W. H. Wahba; Reading, Berks: Garnet Publishing/IthacaPress, 1999), 248.

80 Winter, Egyptian Society under Ottoman Rule, 105–10.81 Ibid, 18.82 For example the 3 ulba, an illegal tax imposed on farmers.


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V JUDGES AS CIVIL SERVANTS

While the q:n<n’s forays into the moral domain may have rankled thepopulation at large, they do not appear to have stoked any serious

conflict with local judges. The same cannot be said for the q:n<ns whichsought to dispense state pensions to the ulema of al-Azhar.83 Sparkingone of the most incendiary episodes in Ottoman–Egyptian judicialrelations, the edict promulgating this measure was implemented betweenthe years 1552–54 by the q:@; 6askar 6Abd al-B:q; b. 6Al; al-6Arab; al-R<m;. Not since the conquest had an imperial edict ignited as muchopposition. At issue, as far as the Cairene judiciary was concerned, wastheir independence from the state and its administrative hierarchy.

It is generally acknowledged that the Istanbul judiciary was organized

into a hierarchical bureaucracy or guild. C. Imber has shown that themuftiship of Istanbul ‘had emerged from relative obscurity in thefifteenth century to become, by the mid-sixteenth century, the supremeoffice in the Ottoman judicial hierarchy’.84 In the case of Egypt, G.Nahal has argued that by the seventeenth century, the judiciary in Egyptwas hierarchically organized and, while free from the interference of other branches of provincial government, reported directly to Istanbul.85

In other words, the judiciary in Egypt was now hierarchically embeddedin an empire-wide bureaucracy culminating in the supreme judicial office

of state (the chief muft ; of Istanbul). It is unclear, however, why thistransformation is viewed as a seventeenth-century development. Indeed,al-Dam;r;’s narrative suggests that the attempt to bureaucratize the localjudiciary in Cairo occurred at least a half century prior—at exactly thesame time as the muftiship of Istanbul was coming into prominence asthe ‘supreme [judicial] office’.

According to our biographer, the ulema viewed the dispensation of state pensions to al-Azhar scholars as a calamity. Inevitably, a seriousaltercation ensued between 6Abd al-Wahh:b b. Ibr:h;m al-R<m; and the

prominent Egyptian scholar Shams al-D;n MuAammad al-Eanbal;(hereafter referred to as al-Eanbal;), reaching its zenith when the latterpenned a derisive poem attacking his nemesis. So popular was the poem,

83 He also allocated portions for the poor and the ‘exempted’ (asA:b al-a6dh:r). Al-Dam;r;, Qu@:t MiBr, 62.

84 C. Imber, Ebu’s-Su’ud , 7.85 G. Nahal, The Judicial Administration of Ottoman Egypt in the Seventeenth

Century (Minneapolis: Bibliotheca Islamica, 1979), 9–11.

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writes al-Dam;r;, that donkey drivers (rukb:n) recited it in and aroundCairo:

Were the ceiling made of silverhe would wish a fire upon the house

were graves piled high with goldhe would rush deathwere he alone with the belovedlove he would forget but her jewels remember to steal. 86

The incidental poem might have been forgotten had al-Eanbal; notdelivered it to the q:@; of Giza, who was heading to Istanbul, withinstructions that it be read aloud to Sultan Su ¨ leyman by no less than thegrand muft ; of Istanbul, the famous Shaykh al-Isl:m Ebu’s-Su’ud. Sowhat exactly were al-Eanbal;’s intentions? Did he wish to draw the

Porte’s attention to the fact that 6Abd al-Wahh:b al-R<m; was, as thepoem suggests, a thieving, dissolute official? If so, why make the addeddemand that it be read to the sultan by none other that the chief muft ; of Istanbul? Let us consider the first question. Al-Dam;r; cites numerousexamples of Ottoman chief judges deemed corrupt by their counterpartsin Cairo, but for whom no special emissary was dispatched to the sultan.Furthermore, at no time does al-Dam;r; impugn, directly or otherwise,6Abd al-Wahh:b’s character as a thief or as a corrupt official, somethinghe readily does with other Ottoman chief judges. It seems unlikely

therefore, that al-Eanbal;’s grand gestures to the Porte were motivatedby personal animosity rather than by his opposition to this imperialdirective. In fact, al-Dam;r; is quite explicit in linking the poem to theedict.

This brings us to the second question. What is the significance of explicitly requesting that Ebu’s-Su’ud read it aloud to the sultan? Did al-Eanbal; intend to draw the attention of the state’s chief muft ; to thepersonal unpopularity of his emissary, the Ottoman chief judge? If so,why not send it to Ebu’s-Su’ud alone, or conversely find it sufficient to

send to the sultan alone? The symbolic significance of requesting that thechief muft ; of Istanbul read it to the sultan should not be overlooked. If,as argued, it is the unpopularity of imperial, bureaucratic policies, ratherthan the unpopularity of one man which is at issue, what better way tohighlight these objections than by hand-picking Ebu al-Su‘ud, theindividual who personifies this new bureaucratic trend, to read it to itsprogenitor, the Sultan?

Al-Eanbal;’s plans were foiled, however, by the q:d ; 6askar wholearned of the plot and hastened to the governor, 6Al; Pasha, complaining

86 Al-Dam;r;, Qu@:t MiBr, 66.


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that a certain Shams al-D;n al-Eanbal; had ‘attacked us’ in his poem andhad sent it to the Sultan with a certain MuAammad al-Mansh;.Intercepted in Alexandria, al-Mansh; was brought before the d ; w:n,‘poem in hand’. The offending poet-jurist, al-Eanbal;, was then

summoned from his post at the prestigious Madrasa al-G:hiriyya forinterrogation. Leading the interrogation was the governor, who asked:

‘Oh Shaykh, are these your words insulting the shaykh al-Isl :m, q:@; MiBr?’‘Yes!’ he answered.‘Were you not afraid of what might befall you writing such things?’‘I merely relayed the events as they unfolded’, he replied.

At which point the Ottoman judge interjected: ‘The principle amongHanafis [holds] that to insult a q:@; is kufr’.

Demanding his detractor’s execution, and rebuffed by the governorwho refused to endorse the request,87 6Abd al-Wahh:b al-R<m;threatened to ‘shut the courts of Egypt and leave the county’.88

In the end, the courts remained open and al-Eanbal; remained amongthe living. Nonetheless, he was imprisoned and visited on a daily basis bythe governor’s emissary, al-Daylam;. The poignant exchange that isalleged to have transpired between the latter and the jailed Shaykhdemonstrates the use of religious ideology in the campaign to ‘renew’legal practices. For days al-Daylam; beseeched al-Eanbal;: ‘Renew yourIslam’ ( jaddid isl :mak). With equal consistency, al-Eanbal; replied:

I am a Muslim, and nothing has emanated forth from me that contradicts Islam

or [the rulings of] its Shaykh, al-Qar:f ;.89

Without giving us any indication of how long al-Eanbal; wasincarcerated, al-Dam;r; reports that he was eventually released.Nothing more is written of this incident, except for a footnote indicatingthat, years later, when news of 6Abd al-Wahh:b al-R<m;’s death inAnatolia arrived, al-Eanbal; was moved to pen two lines eulogizing hisformer nemesis:

How our differences caused tears of bloodnow that he is gone we weep for him.90

Barring sarcasm, which seems unlikely under the circumstances, it isnot surprising that al-Eanbal; would write these conciliatory lines abouta man he had depicted as a vulgar materialist. Again, it bears repeating

87 Ibid, 68.88 Ibid, 67.89 Ibid, 68.90 Ibid, 69.

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that these conflicts were rarely personal in nature. Al-Eanbal; speaks of their ‘differences’, an unexpected choice of words for an accused thief from his accuser. What transpired in the d ; w:n between the two menonly confirms that the ‘differences’ of which al-Eanbal; wrote, though

cast in personal language, were in reality ideological. His attacks on al-R<m; can only be read, therefore, as a critique of judicial policiesenforced through imperial directive, not by the capricious whim of anindividual judge.

Al-Dam;r;’s biography ends in the early seventeenth century withseveral more anecdotes that suggest tensions between Ottoman judgesand local judges continued to flare. Among the complaints directedagainst q:@; 4:liA b. Sa6;d (ten. 1612–13) was that he delegated too muchauthority to his atb:6 (followers) and allowed them to exert too much

influence in judicial matters. They in turn were a corrupt lot who abusedtheir powers, says al-Dam;r;.

VI MA4LAE A, IKHTIL2F AND THEPOPULARITY OF OTTOMAN JUDGES

While the above may suggest a clear delineation between ‘local’ and‘Ottoman’ jurists, al-Dam;r;’s biography of the chief Ottoman judges in

Egypt reveals a far more complex relationship. Many an Ottoman chief judge won the admiration of Cairo’s communities by shielding themfrom q:n<n, upholding the principle of judicial disputation (ikhitl :f ),respecting the madh:hib and legitimating local customary laws. Somedid this without drawing the Porte’s ire, while others paid a heavy pricefor these discretionary tactics.

In 1549 4:liA b. Jal:l was praised for his opposition to Aukk:m al-siy:sa and for upholding the shar6. The chronicler writes that he wasrenowned for ‘expertise in lifting the harm from Muslims’, implying thathe made use of legal tools which allowed for the incorporation of localcustom under the guise of ‘lifting the harm’ (iz:lat al-@ arar). He was alsopraised by Sultan Su ¨ leyman writes the author, implying that these morelenient measures were in accord with the Porte’s directives. In 1569, thechief judge MuAammad b. 6Abd al-Q:dir was praised as a scholar of Sufism whose knowledge of religious sciences (6ilm) and of the‘customary practice’ of the people (6amal ) was impeccable.91 In thecase of another, chief judge MuAammad b. Shaykh MuAammad b. Ily:swho left office in 1570, al-Dam;r; writes he was ‘praised for hisknowledge by the people of knowledge (ahl al-ma6:rif )’, a reference to

91 Ibid, 237.


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the scholar’s Sufi credentials.92 Al-Dam;r; commends the judge’sinclination for consultation with Egyptian jurists and for correspondencewith jurists from many madhhabs, ‘of which he was highly knowledge-able’.93 Significantly, he was also well regarded for looking into the

welfare or maB:liA of Muslims.94

Parviz al-R<m;, who took office in1574, was also commended for resorting to maBlaAa.95 6Abd al-Ghan; b.M;r Sh:h, who assumed the chief judgeship of Egypt twice (first in 1576–78 and again in 1585–86), was another well-regarded scholar who wasinclined toward awl :d al-6Arab and the fuqah:8 and paid heed tomaBlaAa.96

But the stories of many a popular Ottoman chief judge illustrate thatthey were praised, not for their lenient interpretations of Ottoman lawbut, sometimes, their blatant disregard of it. One such figure is Fay@

All:h b. AAmad known as Q:f z:da, who took office in 1591. Ourbiographer praises Q:f z:da for consciously disregarding importantaspects of the q:n<n, notably the collection of the stipulated court fees.In so doing, Q:f z:da was responsible for ‘ending the deterioration of thedivine laws of the venerable shar6’.97 ‘People counted his days as adream’, writes al-Dam;r;, who credits him with sparking nothing lessthan an intellectual renaissance.98 More than that, Q:f z:da attemptedto re-invest the chief judges of the four schools of law with some of thejudicial privileges they had possessed prior to the conquest. He wrote to

Shaykh Badr al-D;n al-Qar:f ;, chief judge of the Maliki school,reassuring him that, ‘we issued the order that none but you shall issuefatw:s for the Maliki madhhab without your consent’.99

One cannot fail to note, however, that the most popular Ottomanjudges in Egypt, like 6Ali b. Y:s;n al-Far:buls; al-Eanaf ; (date unknown)in the early seventeenth century, were often held in low regard by theirOttoman peers.100 Considered a very pious individual who personallyperformed the adh:n five times a day, al-Far:buls; was loathed by theulema of R<m. When he was alive they condemned him to the Sultan,

writes al-Dam;r;, and when he died they denied the validity of his fatw:s.They attacked his ‘popular/weighty madhhab’, i.e. his rulings, and

92 Ibid, 249.93 Ibid, 252–6.94 Ibid, 260.95 Ibid, 86.96 Ibid, 83.97 Ibid, 149.98 Ibid, 152.99 Ibid, 169.100 Ibid, 118.

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vigorously implored the Sultan to exile or execute the miscreant judge. Intime, the campaign was successful in securing a sultanic edict (mars<m)proclaiming a death sentence on al-Far:buls; and, as always, it arrivedin Cairo on the same day Raw: z:da (see above, p. 205, and n. 77) died

of natural causes. On a note of finality, as though capturing the essenceof the judicial wrangling he has described, al-Dam;r; makes a point of recounting the good example of his own grandfather, the Maliki chief judge MuAammad b. 6Abd al-Kar;m b. AAmad b. 4idd;q al-Dam;r;, whoonly implemented those ‘qaw:n; n that did not contravene the Shar;6a’.101

CONCLUSION

In the past few decades, a new and expanding line of inquiry into theOttoman Empire has overturned once stable historical paradigms. In nosmall part thanks to the rich documentary and archival evidencepreserved, a uniquely textured history is emerging, allowing for anintimate portrayal of society and legal culture that would be impossiblein any preceding Muslim era. Within this tide of revision, however, aparadigm of exceptionalism permeates scholarship on Ottoman Egypt.Due to its size, wealth and Islamic pedigree, Egypt earns an autonomousplace within the wider Ottoman narrative. The independence andimpermeable nature of local institutions, particularly legal institutions,has thus been asserted.

Both Ibn Iy:s and al-Dam;r;’s narratives show this to be a baselessassumption. Clearly, the state asserted some dominion over both theadministration of justice and its production, in the first and latter half of the sixteenth century. What is learned warrants a re-examination of thethesis that the Ottomans: a) only controlled the legal process; b) thattensions between local jurists and the state eased after the vagaries of theconquest; c) that the local judiciary was able to re-assert its full

independence.The rhetoric of takf ; r and tajd ; d amply demonstrated the rhetorical

means by which this was accomplished and, what is more, highlightedthe Ottoman self-view as ‘renewers’ of the faith. The renewed ‘OttomanShar;6a’, emphasizing ‘orthodoxy’ (universalism, codification and homo-genization) stood in antagonistic rivalry with that of the judicial classesin the Arabic-speaking provinces, where a traditionally orthoprax legalmodel dominated. The latter upheld the traditional juristic paradigm thatlocal custom/practice held precedent in the micro-community’s affairs,

101 Ibid, 185.


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while the state challenged this assertion by endowing the q:n<n with a‘universal legitimacy’. This intervention was not limited to q:n<n law,however, but extended to the critical discourse on judicial and legislative‘authority’ in Islam. The political appropriation of this authority,

whether through caliphal claims to supreme right of ijtih:d , or throughthe diminution of the co-equality of the madhhabs, implies that thecentre of gravity for the production of communal/local culture hadshifted to a ‘trans-communal’ judicial body. Where fiqh had left room forlocal custom to determine ‘grey areas’ of the law, the q:n<n nowtransgressed into many of those areas. Its imposition on the courts of Egypt in the first half of the sixteenth century demonstrates how imperialq:n<n was universalized in three stages: 1) incorporation into sultanicdecrees, 2) adoption and codification into q:n<n, and 3) export

throughout the empire.The emphasis on the construction of ‘orthodoxy’ notwithstanding, itshould be made clear that this in no way implies a rigid, authoritarian orstatic ideal. The renewal project remained perpetually discursive andtransformative. Almost unanimously, the secondary literature on courtregisters from the sixteenth and seventeenth centuries suggests that inpractice the Ottoman Shar;6a courts functioned with a modicum of highprofessionalism, serving as equitable venues where ‘a woman or a slave’could win rulings against am; rs; where the q:@; ’s judgements wereexpeditious and enforced with the assistance of the shur3 a; wheredhimm; s preferred to have their cases heard; and, where Shar;6a courtshandled a broader range of cases than ever before.102 It remains to beshown whether this reflects the success of the renewal project, itstransformation, or its failure.

102 See Hanna, ‘The Administration’; Gerber, State, Society and Law;A. Cohen, A World Within: Jewish Life as Reflected in Muslim Court

Documents from the Sijill of Jerusalem (Pennsylvania: Centre for JudaicStudies, 1994).

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