goodbye to the despot: feldman on islamic law in the ottoman empire

Goodbye to the Despot: Feldman onIslamic Law in the Ottoman Empire

Molly Greene

FELDMAN, NOAH. 2008. The Fall and Rise of the Islamic State. Princeton, NJ:Princeton University Press. Pp. 189. $22.95 cloth.lsi_1182 219..242

Noah Feldman’s 2008 book, The Fall and Rise of the Islamic State,provides a sweeping review of the constitutional history of the Islamic politythat connects the past to developments in the Middle East today. The OttomanEmpire is vital to his argument. This essay critically evaluates Feldman’streatment of the Ottoman period, within the larger context of Islamic history,and in so doing considers the understudied constitutional history of the empire.Without denying the importance of the ulema and the shari’a, it argues thatthe empire was a hybrid of many different traditions and the centrality ofIslamic law should not be overstated.

INTRODUCTION

When I was in graduate school, I read Emmanuel Sivan’s (1985) newlypublished book, Radical Islam: Medieval Theology and Modern Politics. This wasthe late 1980s and the academic world, like everybody else, was trying tocome to grips with the Iranian revolution and what seemed to be the suddenreturn of Islam to center stage in political life. Sivan’s book focused on thecontemporary Middle East, but he also made a strong historical claim. Heargued that in the hands of the fundamentalists, Sunni political theory haddeveloped, for the first time, a justification for revolt against an unjust ruler.I remember discussing this book with my professor in Ottoman history, a fieldI was just beginning to explore, and he hit the desk in exasperation. “Why,”

Molly Greene is a Professor in the Department of History at Princeton University. I wouldlike to thank Ali Yaycioglu for his careful reading of the manuscript and Baki Tezcan for hiscareful reading and for comments on the Kadizadeli and their influence into the early eighteenthcentury.

Law & Social InquiryVolume 35, Issue 1, 219–242, Winter 2010

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Journal of the American Bar Foundation

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he exclaimed, “do scholars of Islam always ignore the Ottoman Empire?” Hewent on to point out that more than one sultan was deposed during the long(AD 1300–1924) reign of the dynasty, yet scholars never thought to look at thehistory of these events, including the justification for the violent overthrow ofa sovereign. Instead, the common method of attack was to jump from theClassical Age (which, conventionally, came to an end with the Mongolcapture of Baghdad in 1258) to the twentieth century, when Ottoman rule overthe Arab heartland of the Islamic world had come to an end.

Since Sivan’s book, the legal history of the Ottoman Empire hasemerged as one of the most vital fields in Ottoman historiography today.Nevertheless, the absence of the Ottoman period from most discussion of theIslamic tradition continues. It is fair to say, I think, that the situation myprofessor bemoaned twenty years ago is still with us today, more or less intact.As an Ottoman historian, then, I was very pleasantly surprised, perhaps I cansay even shocked, when I picked up Noah Feldman’s (2008) new book, TheFall and Rise of the Islamic State, and discovered that not only were theOttomans part of his story, but that, in fact, developments in the Ottomanperiod are vital to his argument.

Feldman’s book has attracted a good deal of attention—it is short andpowerfully written, and the author is a prominent intellectual—so no doubtmost reviews of it will focus on the book’s foreign policy implications. ButOttoman historians should take the opportunity to comment on the book aswell. And this is not just because it is a rare event, indeed, for a book publishedwith the imprimatur of the Council on Foreign Relations to address theOttoman Empire in such a central way, although that is an important con-sideration. More fundamental is the fact that Feldman’s vigorous depiction ofthe empire and its history offers a coherent narrative that is worth engaging.

Most general studies of the Ottoman Empire—which tend to be writtenby popular historians—are simply dreadful rehashes of rebellious janissaries(standing armies) and nefarious plots launched from the Royal Harem. Theheroic age comes to its predictable end in 1566 with the death of Süleymanand begins its interminable decline, which takes another three hundred andfifty years to resolve. This is emphatically not what Feldman has written.Some of his arguments go off in different directions from those that Ottomanhistorians have found most compelling in recent years; others engage some ofthe most central issues in the field. Either way, The Fall and Rise of the IslamicState is worth a response from those of us who have devoted our professionallives to the study of the longest-lived Islamic empire in history.

ISLAMIC CONSTITUTIONALISM

In the opening pages of his book, Feldman (2008) lays out an arrestingproposition: “When empires fall, they tend to stay dead. The same is true of

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government systems” (1). No one, he says, expects monarchy to come back,and the same holds true for communism; but, he says, there are two promi-nent exceptions to the rule. The first is democracy, which was resurrectedafter two thousand years in abeyance. The other is the Islamic state. Feld-man’s concern is with the latter. He wants to know why it came back and,most crucially for him and for others, whether it can succeed. History, heargues, is central in answering these questions.

In the first place, we must get a clearer sense of what the traditionalIslamic state actually was, and why it worked so well for so manycenturies until it ultimately declined and fell. Only then will we see fullywhy the idea of the Islamic state is so popular today. (3–4)

Feldman goes on to provide a definition of the traditional Islamic state thathe scrupulously adheres to throughout the book. A Muslim ruler governedaccording to God’s law, which was expounded by the scholars, the ulema. Theruler’s authority was made legitimate and lawful only through his willingnessto adhere to the law, or the shari’a. Clearly, then, the law is absolutely centralto Feldman’s definition of the Islamic state, and he states this both explicitlyand repeatedly.

The state historically organized under what I shall call the classical orthe traditional Islamic constitution—a constitution that, like theEnglish constitution was unwritten and ever evolving—was a legal statein both meanings of the term. The system was justified by law, and thesystem administered basic government through law. (6)

The book is organized into three extended chapters. “What WentRight?” (of which more later) looks at the actual track record of this Islamicstate in historical terms, in a wide-ranging argument that stretches from theopening decades of Islamic history in the seventh century to the OttomanEmpire at the beginning of the nineteenth century. In a necessarily com-pressed consideration of more than one thousand years of historical experi-ence, Feldman renders a remarkably positive view of what Muslim rulers andMuslim scholars, working together, were able to achieve.

In “Decline and Fall,” Feldman hones in on the final century of theOttoman Empire, and argues that it was marked by a truly historic change inthe traditional Islamic constitution, a change brought on by reformers wholooked to the West for their inspiration. In a series of legal reforms that gainedsteam as the century wore on, Ottoman bureaucrats eventually insisted onthe codification of the shari’a. Between 1869 and 1876, at the height of thenineteenth-century reforms known collectively as the tanzimat (reorganiza-tion), a committee of scholars and experts drew up a comprehensive code ofthe civil law known as the Mecelle.

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Codification, according to Feldman, shattered the age-old Islamic con-stitutional order. Previous to the reforms, the shari’a was “an uncodified bodyof legal doctrines, principles, values and opinions” (62). As such, it was notsomething that could simply be looked up; the law, in essence, was actuallyembodied in the scholars, in their knowledge, in their judgment, and in theirpainstakingly acquired techniques of interpretation. “Codification thereforesounded the death knell for the role of the scholars as the keepers of the law”(63). In one stroke, he argues, the ulema went from being judges, people ofpower and authority, to bureaucratic cogs in the legal machine. After all, anessential aspiration of any modern bureaucracy is that the parts be inter-changeable. The demotion of the scholars led inexorably to the elevation ofthe sultan, as the restraining power of the law (that is, the scholars) drainedaway. Ultimate authority now rested with the ruler because the shari’a hadpower only to the extent that it was incorporated into a legal document issuedby the ruler as head of state. One could argue that, whereas in Islamic politicaltheory the law actually preceded the state, now it existed only by virtue ofthe state (Gerber 1999, 44). The enhanced power of the executive went onto produce predictably gloomy results; Feldman (2008) draws a direct linebetween these late nineteenth-century developments and the “uncheckedtyranny” (91) that we see today in the Arab world.

The final chapter of the book, “The Rise of the New Islamic State,”focuses on contemporary developments. To his great credit, Feldman showshimself to be well aware that the Islamists are not advocating a return to“tradition,” as is often asserted in the West. No matter how much they maydrape themselves in the garb of traditional values, they are modern throughand through. He is characteristically precise about those aspects of theirprogram that are a radical break from the past. First, they are fiercely egali-tarian (like all the other prominent ideologies of the twentieth century, hepoints out); there is no endorsement of the multiple hierarchies so charac-teristic of the premodern world.1 Second, and this is critical for Feldman, theyaspire to an Islamic state without that fundamental pillar of Islamic consti-tutionalism: the scholars. The Islamists want the shari’a, but they do not wantthe ulema. It is laymen who will interpret what the shari’a is (110–11). Bylaymen they clearly mean themselves; it is well known that, almost withoutexception, the Islamists are not from the scholarly class, but rather areindividuals who have received a Western education, particularly in thesciences.

In his review of the various Islamist groups—from the Moroccan Party ofJustice and Development to the Muslim Brotherhood in Egypt to the Hamasin the Palestinian territories—Feldman points out that all of them call for theestablishment of an “Islamic” state. When asked to define what they mean by

1. The notable exception is the hierarchy of gender, which is, of course, maintained,although not without challenges.


this, they typically first say that an Islamic state is one governed throughIslamic law and Islamic values (111). The insistence on the law, he notes, isrooted in history. An Islamic state without Islamic law is simply unthinkable,and the Islamists are fully aware of this. But the second, he continues, theappeal to Islamic “values,” is thoroughly modern; such a concept is nowhereto be found in the classical Islamic literature. In a perceptive and persuasiveargument, Feldman suggests a subtle strategy at work in the double appeal toIslamic law and Islamic values.

For reasons that deserve close attention, Islamism has a very difficult andfraught relationship with the notion of Islamic law. In political terms,Islamic law is both an important selling point for the Islamists and alsoa potential threat to their ability to take and wield power in the modernworld. (112)

In other words, Feldman is arguing that shari’a, almost uniformly associated inthe West with the excesses of unbridled state power, actually has the abilityto reign in those who govern in its name. It is precisely for this reason that theIslamists lean much more heavily on the far more amorphous category of“values.” By doing so, he writes, “they embrace a distinctively modern visionof the state, one that frees the state from the narrow bounds of classicalIslamic legality” (112).

What Went Right

For historians of the Ottoman Empire—and of the Islamic world morebroadly—Feldman’s is an astonishingly positive depiction of the track recordof the Islamic constitutional order. One must bear in mind that scholars,colonial officials, Muslim reformers, and popular historians have all chimed into lambast the supposed chronic injustice and legal chaos that was synony-mous with Islamic law. No less a personage than Supreme Court Justice FelixFrankfurter had views on the lack of Islamic justice, writing that the USSupreme Court “is not a tribunal unbounded by rules. We do not sit like aKadi under a tree dispensing justice according to considerations of individualexpediency” (Termiello v. City of Chicago 1949, 11). Nor is this view confinedto Westerners. Ziadeh (1968), a prominent historian of Egyptian legal history,begins his analysis of legal reforms in the nineteenth century by stating that“there was very little in the Islamic background of Egypt that was conduciveto the rise of constitutionality or the rule of law” (vii).

Arbitrariness, as summed up by the derisive term kadijustiz, is one ofthe two major charges most often leveled against Islamic law. The other istimidity or irrelevance on the part of the ulema who are said to have early onsurrendered power and authority to secular rulers and contented themselves


with abstract speculation on esoteric topics. Feldman (2008) is well aware ofthis weighty legacy; he writes,

To Westerners, and even to those Muslims educated under Western-influenced conditions, it may sound extremely strange to describe theclassical Islamic state of the Ottoman Empire and the many dynastiesthat preceded it as fundamentally legal. Western writers have for cen-turies gone to great lengths to describe the Muslim world as the home ofOriental despots who did what they would, free from the constraintssupposedly imposed on Western rulers. (21)

Feldman is determined to disabuse people of this notion. That is certainlywhy he entitled his first chapter “What Went Right?” It is an obvious, and forthis reader a very welcome, challenge to Bernard Lewis’s (2003) influentialbook What Went Wrong, which presents Islamic history as a history of failure.

Feldman begins in the medieval Islamic world, at a time when thecontours of the classical Islamic constitution took shape. The ruler possessedexecutive authority but was supposed to govern in accordance with theshari’a, and it was the ulema who had the authority to say what the shari’awas. Here Feldman goes over fairly well-trodden (although still very conten-tious) soil. There is strong scholarly support for the view that the ulema, infact, offered no meaningful check on the ruler because the latter had thepower to appoint and to dismiss judges. Feldman recognizes this, quoting themedievalist Richard Bulliet who, in 2004, wrote “as every historian of Islamknows, in practice the ulema seldom succeeded in preventing despotism”(64). The situation got even worse in the eleventh century when Turkishsoldiers—already serving in the military of the Abbasid Empire—took thenext step and came to rule over their former masters. Baghdad fell to theSeljuk Turks in 1055, and the Abbasid Caliph became a ruler in name only.How should pious (Arab and Persian) Muslims react to these new rulers,rough men of the steppe who were only recent converts to Islam? Theresponse came in the shape of the scholar Abu al-Hasan al-Mawardi (AD972–1058), who also served as the diplomatic go-between for several caliphsin their negotiations with the Seljuks. In The Ordinances of Government,which Feldman (2008) describes as “still the most important classical Islamicwork devoted solely to constitutional law” (37), al-Mawardi took up the issueof a situation where the caliph is controlled by another person who exercisesexecutive authority. He concluded that as long as the de facto ruler followsthe principles of religion and law, the caliph could allow the situation tostand. One could consider, he wrote, that the caliph had deputized this rulerto exercise authority on his behalf, although, of course, this was a legal fiction.

Feldman knows that al-Mawardi has been severely criticized by modernscholars as someone who caved in to power and reduced the caliph to “a kindof Muslim pope—someone who lacked actual governing power but gave his


blessing to those who did” (38). But Feldman sees it differently. He arguesthat by preserving the legal fiction of the caliph, al-Mawardi was trying topreserve the role of the scholars, not that of an already-defunct caliph. Bysaying that the actual ruler had been deputized by the caliph, he sought tomaintain the principle that the shari’a was binding on the ruler. The caliphmight be gone, but he hoped that the scholars would still be relevant.

The Entry of the Ottomans

As I said earlier, these medieval developments have received a good dealof scholarly attention (see Gibb 1962; Lambton 1981; Crone 2004). Andwriters on the modern Arab world, such as Sivan, usually draw exclusively onthis rich heritage to make connections between past and present. Feldman isunusual; rather than jumping from AD 1258 to the twentieth century, hemakes the Ottomans an important part of the Islamic story. The history of theOttoman Empire is still surprisingly little known, so a brief outline might wellbe useful here.

The Ottoman Turks, so named after their founder, a leader namedOsman, were one of many Turkish principalities in Anatolia in the thirteenthcentury. The Muslim world was in disarray, devastated by the armies ofGhenghis Khan and his successors. Out of this chaos the Ottomans slowly,and with some setbacks, began to rise to the top. One of the ways they did thiswas by making the leap across the Dardanelles to the Balkans, where theyquickly conquered much of that territory in the second half of the fourteenthcentury.

In the same period they also began to defeat, one by one, the variousTurkish emirates in western Anatolia. By the middle of the fifteenth century,the ailing Byzantine Empire, now reduced essentially to its capital, Constan-tinople, was surrounded by Ottoman forces. In 1453 Mehmet the Conquerortook the city, thus bringing Byzantine history to an end and launching theOttomans as a force to be reckoned with. Early in the sixteenth century theyextended into the heartland of the Middle East—greater Syria in 1516, Egyptin 1517—and therefore became not just emperors but also the leaders of theIslamic world. It was a position they would hold until 1924.

What did the rise of the Ottoman state mean for the already long historyof Islamic constitutionalism? Although Feldman does not dwell extensivelyon the classical age (conventionally AD 1300–1800), he hones in on the verydistinctive relationship that the Ottomans established with the ulema. Inearlier Islamic polities, the scholarly class kept its distance from those whoruled. Rulers did select judges from among the scholars, but the scholarlycommunity maintained itself as a thing apart from the state. This changedunder the Ottomans. In the second half of the fifteenth century, the Otto-mans created what can only be called an official mufti (jurist). A mufti is


someone who, by training and the consensus of the scholarly community, isconsidered qualified to issue nonbinding legal opinions in the form of fetwas(fatwas) (in Turkish, fetvas). In the informal and nonhierarchical way that isso characteristic of Islam, authoritative muftis were those whose opinionswere sought out by many. The mufti gained authority through the market-place, as it were.

The Ottoman sheikh ul-Islam (chief mufti) was something very different.He served the sultan; the most famous occupant of the office, the sixteenthcentury Ebu’s-su’ud, issued thousands of fetvas while in the service of Süley-man the Magnificent. He is most famous for having worked assiduously toreconcile Ottoman practices with the precepts of Islamic law, althoughwhether he succeeded is a subject of great debate.2 And that was not all.Through a series of measures in the fifteenth and sixteenth centuries, theOttoman sultans created a formal career path with designated steps thatscholars were obligated to follow if they hoped to serve in the highest posts inthe empire. At the top, in terms both of prestige and of salary, were the eightcolleges established by Mehmet II (AD 1451–1481) and the colleges of theSüleymaniye, built by Süleyman in the sixteenth century. The highest rankedulema sat on the Imperial Council itself. The Ottomans are famous for thejanissaries, who awed the Europeans with their ferocity. Much less wellknown is the fact that the Ottomans created other bureaucracies as well, oneof which was a bureaucracy of scholars.

Feldman sees these developments as very portentous ones. Indeed, it isclear that they interest him precisely because of what they seem to fore-shadow. Feldman (2008) argues that the law “increasingly came within thescope of the state” (52) and, as a result, it lost some of the autonomy that ithad enjoyed under the classical system. Looking ahead some three hundredyears, he writes that these arrangements “paved the way for the epochalmoment of Ottoman reform in which the Sunni scholars were stripped ofmuch of their jurisdiction and lost their ability to counterbalance the ruler”(53). Nevertheless, in the fifteenth and sixteenth centuries this moment wasstill very far away, and Feldman emphasizes that for most of Ottoman historythe system worked; that is, the scholars insisted upon and obtained “somemeasure of executive limitation” (54). The sultans “accepted the yoke of thelaw” (54), and he contrasts this remarkable arrangement to that laid out inJustinian’s Digest, which stated that “the prince is not bound by law” (54). Heconcludes by saying “government by and under law was therefore a mean-ingful and important aspect of life in the Ottoman Empire until its finalyears” (54).

2. As just of one many examples of this ongoing debate, Gerber (1999) argues for thetriumph of shari’a, at the expense of kanun (sultantic law), whereas Imber (1997) sees more ofa mutual accommodation (with, however, some points of tension).


THE FIRST REGICIDE

How well do Feldman’s arguments hold up in light of the historicalrecord? A good place to look is the tumultuous opening decades of theseventeenth century (Tezcan 2001).3 Enough research has accumulated for usto be able to state with confidence that in these years there was a historic shiftin power away from the person of the sultan and toward newly prominentelites. In other words, the kind of check on executive authority that interestsFeldman developed in this period. As we shall see, the dramatic events ofOttoman high politics suggest that Feldman is right to think of the scholarsas a counterbalance to the ruler. But—and this is, of course, unsurprising—the story is more complicated than that.

The complete picture suggests that Feldman unduly privileges the impor-tance of the ulema and of Islamic law in the Ottoman Empire. There wereother actors and they referenced other sources of law.

Early on the morning of December 21, 1603, the Deputy Grand Vezirand the Chief Mufti were present at a meeting of the Imperial Council whena messenger brought in an imperial rescript. Thus did they learn that AhmetI had become sultan; prior to that moment they had not even known that hisfather, Mehmet III, had died. Fourteen years later, the next sultan’s ascensionto the throne was a very different sort of affair. When Mustafa I became sultanin 1617, it was the first time in the history of the Ottoman dynasty that abrother, rather than a son, of the sultan took the throne. Accounts from thetime make it clear that the Chief Mufti, Hocazade Esad Efendi, was instru-mental in putting Mustafa on the throne. One chronicler, Mehmed Efendi,explained that while it was unusual for a brother to inherit the sultanate, EsadEfendi had insisted and “the viziers and the pillars of the state” (Tezcan 2001,133) followed his lead.

Esad Efendi’s role was a reflection of the rising power of the mevâlî (thehighest-ranking ulema of the empire). By the early seventeenth century theyhad managed to establish a lock on the highest offices of the religious hier-archy and had established the right to a continuous stream of income; as asinecure, the mevâlî received stipends that tided them over until the nextposting. They had become a sort of aristocracy, and, increasingly, they usedthis power to become kingmakers.4 Mustafa’s reign was very short; just oneyear later Osman II came to the throne. In 1621 Osman II asked that samemufti, Esad Efendi, for permission to execute his younger brother, Mehmet.Permission was denied (at which point Osman sought a more compliant alim(scholar), and the execution went ahead.)

Clearly, the ulema were gaining in their ability to intervene in matters ofstate. Although Osman II did manage to have his way, he only proceeded

3. The following discussion draws heavily on Tezcan (2001).4. See Zilfi (1988) and Tezcan (2009) for the ulema as an aristocracy.


once he had obtained the imprimatur of a high-ranking alim. This was notthe case just a few decades prior. Both Murad III (AD 1574–1595) andMehmet III (AD 1595–1603) had all contenders for the throne strangled(notoriously, Mehmet III had executed all nineteen of his brothers) withoutconsulting the ulema.

The most spectacular political event of the early seventeenth century,without a doubt, was the murder of Osman II on May 20, 1622. This was thefirst regicide in Ottoman history. Here, too, the ulema were important players.Although the soldiers of the central army—the famed janissaries—took thelead, it is clear that the sympathies of the mevâlî were with the soldiers andagainst the sultan.

Osman II’s murder, an event with repercussions that have continued toecho right down to our own day, is a good place to take a closer look at whatthe ulema were up to and how we might view their actions in light ofFeldman’s argument. Trouble had been brewing since the middle of 1621,when Osman became the first Ottoman sultan in twenty years to lead histroops into battle. On the eve of his departure, he abolished the stipends thatthe elite scholars had come to enjoy. This came on top of another threat totheir position: the sultan had recently appointed two outsiders, palace pro-tégées, to the top judgeships in the empire. These were positions usually heldby the ulema, and they discerned correctly that Osman’s actions weredesigned to recentralize power in the palace (Tezcan 2001, 5).

The army marched toward Poland. The professed justification was thesuppression of increasingly serious Cossack raids on Ottoman towns on theBlack Sea. Many argued, however, that an all-out invasion of Poland wasnot necessary in order to deal with this situation, and it is possible thatOsman decided on war as a way of enhancing his position (200). Much tohis frustration, the army did not perform well, and the sultan had to contenthimself with the recapture of the town of Khotin in today’s Ukraine.Further, although Osman wanted to spend the winter in the field—thebetter to resume campaigning the following spring—the troops were stronglyopposed, and thus sultan and army returned to Istanbul in the early daysof 1622. Soon after, Osman began preparations for a trip to the easternprovinces, claiming that he was going on an imperial pilgrimage to Mecca.His true purpose was very different. Through recruitment in Anatolia, heintended to create a new central army so as to dispense with the one he had.Thus were the janissaries’ complaints against Osman’s policies added tothose of the ulema.

Osman never made it out of the capital. The imperial tents were to betransferred to the Asian side of the Bosphorus on May 18, 1622. On that day,the troops gathered in the central square to convey their demands to thesultan, namely, the cancellation of the pilgrimage and the execution of someof those closest to the sultan. Although they preferred operating behind thescene, the mevâlî attempted to dissuade Osman as well (219–58).


Indeed, a good month before these events, the French ambassador deCesy wrote to Paris that “the men of law, who have an unbelievable authorityhere and all over the empire” (229), were urging the sultan to give up his tripto Mecca. Osman was adamant, however, and over the course of the nextforty-eight hours, events reached such a state that the sultan was imprisoned,and then murdered, in the Yedikule fortress in Istanbul.

ULEMA AND JANISSARIES

The story of Osman’s deposition and murder brings to the fore a reli-able duo that take the stage together, again and again, over the course ofthe next two centuries. The ulema and the janissaries emerge as the twomost enduring centers of power outside the palace (they are temporarilyovershadowed by provincial leaders in the waning days of the eighteenthcentury, but the latter are short-lived, relative to the first two). This is notto say that they were natural allies; the vast difference in background aloneensured that the ulema found the janissaries uncouth, to say the least, whilethe janissaries heaped scorn on the scholars’ pretensions of dignity. It is alsothe case that in the historiography they are often thrown together outof the assumption that they stood together in their implacable oppositionto reform (Kafadar 2007, 114). Their relationship was more complicatedthan that.

Despite these caveats, the fact remains that if the ulema began to emergeas kingmakers in the opening decades of the seventeenth century, so, too, didthe janissaries, and thus they are important to our argument. In the fifteenyears before the regicide, the city witnessed no fewer than six military upris-ings, and such revolts would continue over the next two hundred years. Thejanissaries were central to the events of 1622. It was they who insisted thatOsman return to Istanbul after the unsuccessful campaigns of 1621, and it wasthey who gathered in the square on May 18, 1622, to demand the cancella-tion of the pilgrimage.

Feldman does not speak about the janissaries, and it is easy to imaginewhy. Even the most casual student of Ottoman history will know that thejanissaries have a reputation as an especially disreputable lot, particularly inthe postclassical period (after 1566). Andrew Wheatcroft’s 1993 presentationof the janissaries in his popular history is typical. He speaks of how “janissariesin baggy trousers, short waistcoats and white turbans, with long knives andpistols in their sashes, swaggered through the streets” (85). Along the samelines, most historians interpret the numerous janissary revolts as nothingmore than riots over pay. In recent years, however, a few voices have sug-gested that we look again. A careful analysis of what janissaries were actuallydoing and demanding suggests that the central army was rapidly evolving intoa social estate that, like every estate in an ancien régime, sought to secure and


guarantee its own privileges.5 In other words, the janissaries played their part,too, in limiting what the sultan could do.

One could argue, of course, that the military was selfishly consumed withthe pursuit of its own privilege, whereas the ulema stood for the rule of law.There are two problems with this argument. First, while different in manyways, the ulema and the janissaries were remarkably similar in what theywanted from the palace, namely, the confirmation of offices, income streams,and the like.6 Here we must note the complicated position of the religiousscholars. While they owed their position to their knowledge of the law, theiractual position was that of state officials, and it was from the latter that theflow of privileges came. The ulema were not only defenders of Islamic law,they were also defenders of their position as Ottoman nobility. Tezcan (2001)argues that the opposition of the muftis to fratricide, for example, did nothave much to do with Islamic law, but rather was motivated by the politicaladvantages of having several contenders for the throne: “As the representa-tive of the mevâlî and the leader of legitimate opposition to the court, themufti had an interest in circumscribing the powers of the sultan” (130).

Second, those same voices that have been rethinking the janissarieshave also raised the possibility that the janissaries had some notion of law aswell. This is more controversial. While scholars and contemporary observersalike have spoken of the janissaries as kingmakers, the suggestion that theywere more than lawless thugs is highly revisionist.

There is evidence certainly worth exploring that the soldiers saw theirrelationship with the sultan as a contract. The events surrounding sultanicaccessions provide some good examples. Early in the sixteenth century, PrinceAhmet, a contender for the throne (ultimately unsuccessful), gave a solemnoath to the janissaries in a letter, asking for their support. Toward the end ofthat same century, Selim II was warned by one of his officials that he neededto make a public verbal declaration recognizing the rights of the soldiers topay raises; when he hesitated, violence threatened to break out. In the end,Selim II made the declaration, using a word often encountered in contem-porary documents of a contractual nature.7 To return to the 1622 regicide, inthe aftermath of the act, both the janissaries and their detractors justifiedthemselves in terms of the kanun-i kadim (old law), not in terms of theshari’a (24).

5. Tezcan (2001) actually dubs the central army a “third estate” (251), parallel to the vezirs(viziers) and the mevâlî. Tezcan (forthcoming) will give readers much greater access to what wemight call the emerging field of Ottoman constitutional history, including the case for arevisionist view of the janissaries.

6. Madeline Zilfi (1988) notes that the urgent demands “for punctual wages, accessiongifts, arpalık-livings [stipends] . . . were common to all of the elites, whether corpsmen, scribesor ulema” (101–02).

7. He said makbulümdür (I accept.) For these and other observations, see Kafadar (2007,129–34).


KANUN

The kanun was sultanic or dynastic law. Unlike the shari’a, which wasmeant to regulate the Muslim community, kanun defined (among other things)who belonged to the ruling class, that fortunate group who had the right tocollect the revenues that the bulk of the population—the peasantry—produced. The relationship between the shari’a and kanun in the OttomanEmpire has received a great deal of scholarly attention, and we cannot go intoall the permutations of the debate here. Instead, we will confine ourselves towhat Feldman says about the existence of non-shari’a law in Islamic states.

Feldman (2008) is well aware that in every Muslim polity there weremany rules that did not derive from the shari’a, and these non-shari’a rulesproliferated over time (42–43). But he lumps all these rules under the term“administrative regulations” and says that they did not contradict the shari’ain any meaningful way. This is simply not correct. What could be moreimportant in a premodern economy than land? Yet, in this very area,Ottoman practices diverged dramatically from the shari’a. According to theHanafi school (the particular school of Islamic law that the Ottomans fol-lowed), land is a commodity to be bought and sold. Under the Ottomankanun, land belonged to the sovereign, although the fief-holder and thepeasant also enjoyed substantial rights (but not the right to alienate the land).Ebu’s-su’ud, the sixteenth-century shekyh ul-Islam mentioned earlier, gaveIslamic terms to Ottoman landholding practices, but the fact of the diver-gence remains. Or, at least, it remains for some scholars. The extent to whichEbu’s-su’ud (and the Ottomans more generally) managed to reconcile the twosystems of law is one of the great debates in Ottoman historiography and notat all the settled matter that Feldman implies. The janissaries themselveswere the result of an act of kanun that was decidedly un-Islamic, namely, theenslavement of Christians living under an Islamic ruler (Kafadar 2007, 133).8

And membership in the ruling class—along with sultanic prerogative andsuccession—is clearly not a trifling privilege. But in these matters the variousprotagonists spoke the language not only of the shari’a, but also of kanun.

Tezcan (2001) chronicles the events of 1622 this way: “On the same daythe soldiers [both] petitioned the sultan [Mustafa] for the execution of thosewho left the path of the ‘ancient law’ (kanun-i kadim) and invented new laws”(25). Is it possible, then, to see 1622 as “a constitutional event” (265)? Throughtheir actions, the janissaries and the ulema made it clear that they were entitledto certain privileges that the sovereign could not take away. Osman and hissupporters, who lost the battle, had tried to do just that. Whichever side onestood on, these privileges had their origins in kanun, not shari’a.

8. Under Islamic law, Christians living within the Dar ul-Islam (territory controlled by aMuslim ruler) must not be enslaved. The janissaries were (originally) Christian boys taken fromthe Ottoman Balkans.


Leslie Peirce (1993), in her path-breaking study of the imperial harem,adds yet another source for the limitation of the sultan’s power,

[the] presence of an electoral principle in the Ottomans’ political heri-tage: acceptance of the legitimate role of leading members of the com-munity in the selection of the ruler stemmed from early Islamic traditionas well as from the Turco-Mongol tradition of the election of khans by anassembly of members of the royal family and nobles. (102)

Peirce’s observation points to the hybrid quality of the empire that makes itso fascinating. Byzantine, Turco-Mongol, and Islamic traditions mingledtogether in the long centuries of imperial rule from Istanbul. Turkic traditionsfrom the steppe considered törü (law) as the most important foundation of thestate; sovereignty was legitimized through its enforcement (Inalcık 1969,108). An overly exclusive focus on the shari’a misses the fact that constraintson the ruler emanated from many directions, not just from the Islamic legaltradition.

Here I should point out that some of this critique likely stems from adifference in approach rather than a major divide on substantive matters.Feldman is interested in the position of the ulema, a topic that has not muchinterested Ottomanists, at least not lately. The formal position of the shari’a,therefore, is vitally important to him, since its status is directly linked to thestatus of the scholars themselves. Recently Ottoman historians have becomemuch more interested in investigating the informal structures of imperial rule.This is particularly true for the seventeenth and eighteenth centuries when,as Bruce McGowan (1994) so aptly put it, “the most important changes inOttoman society and government since the sixteenth century had beengradual, unintended and therefore poorly understood” (658).

THE MUSLIM OPPOSITION

Foregrounding Feldman’s concerns for a moment, mention must bemade of the series of disturbances known as the Kadızadeli movement. Thismovement shows that the ulemas’ supposed monopoly on the shari’a and itsinterpretation could be, and was, challenged at various points in Ottomanhistory. Ironically, they were at times probably more secure in their positionas Ottoman elites than they were as leaders of the Muslim community. Inthe seventeenth century, a series of mosque preachers became tremendouslypopular with their fierce attacks on what they saw as the errant ways intowhich the Muslim community had fallen (Zilfi 1988, 129–82). Their stron-gest charges were levied against the Sufis, the Muslim lodges where mysticalIslam was practiced. The Kadızadeli professed their horror at the singing,dancing, and, reportedly, wine drinking that went on at these gatherings. In


1651 the leading preacher of the movement persuaded the Grand Vezir toburn down the most opulent of these lodges, the one belonging to the Halvetiorder. It was clear, however, that the challenge to the Sufis was an affront tothe ulema as well. This was true both because the Kadızadeli were trying toassume moral leadership of the Muslim community and because many eliteulema were members of the Sufi lodges. At times, the Kadızadeli did take onthe ulema directly, and won. In 1664, as the Grand Vezir prepared to marchon Vienna, Sultan Murad ordered that prayers be said across the empire. InIstanbul the Muslim imams and the Christian patriarchs gathered their flocksfor prayer, as it was custom for Muslims and Christians to pray together for anOttoman victory. Vani Efendi, the mosque preacher of the moment, protestedthat the prayers of Christians were neither needed nor desired. The sheikhul-Islam protested that the practice was both legal and customary, but to noavail. The Sultan rescinded the decree (Zilfi 1988).

The Kadızadeli challenge came to an end with the Ottoman defeat atVienna in 1683, a defeat with which the movement was closely associated.9

Their ascendancy, however, testifies to Islam’s egalitarian tendencies, even inthe highly structured Ottoman context.10 The ulema certainly aspired tostand as the symbol of orthodox Islam, but they were never able to establisha monopoly. Others could and did claim their right to interpret the shari’a.Feldman is struck by the fact that the modern Islamic movement leaves outthe scholars. There are many reasons for this, of course, and he is right toemphasize the twentieth-century context. Nevertheless, by positioning theulema as the sole defenders of the shari’a, he downplays historic ambiguityover authority within the Islamic tradition.

RETHINKING THE NINETEENTH CENTURY

Revisionist views of the janissaries, of 1622, and of the Ottoman classicalperiod (1300–1800) more generally, go hand-in-hand with a more skepticaltreatment of the nineteenth century than was the case in an earlier trium-phalist historiography. Feldman’s book fits in well with this more criticalstance, which is the dominant one in Ottoman history writing today. Asnoted earlier, he sees late nineteenth-century developments as the harbingerof the gloomy history of the Middle East in the twentieth, and now the

9. However, Sultan Mustafa II continued to have advisors who had been closely associ-ated with the Kadızadelis, so their intellectual influence continued up until 1703, when Muratwas deposed in a series of events known as the Edirne Incident. Not coincidentally, the eventsof 1703 are seen as ushering in an age of ulema ascendancy that would last well into thenineteenth century.

10. “The Kadızadeli were not ungrounded in Islamic tradition in claiming that it wasincumbent upon pious believers to take matters into their own hands, if need be, and enforceproper conduct upon their neighbors” (Kafadar 2007, 121).


twenty-first, century. Once again, he is at odds with Bernard Lewis (1968),who remains the most eloquent and influential representative of the schoolthat sees the nineteenth-century reformers (including the sultans) as heroesbattling to transform a reactionary society. For Feldman (2008), the rule oflaw is essential, and it was in this period, he claims, that the ground was laidfor the “unchecked tyranny” (91) that plagues the Arab world today. Lewisforegrounds the imperatives of modernization. Feldman views the power ofthe ulema in the classical period as, essentially, a good thing, whereas forLewis, and the many who agree with him, this power (along with that ofthe janissaries, the provincial notables, and others) represented a setback, adecline from the heroic days when sultans, and sultans alone, took the empirefrom triumph to triumph.11 In discussing the nineteenth century, Lewis givesa nod to those (rare) voices who objected to the new power that the sultanswere amassing in the name of reform, but one suspects that any tears thatLewis is shedding for the old order are crocodile tears.12 It is clear whereLewis’s (1968) sympathies lie.

After Mahmud, the men of the Tanzimat (as the reform program wasknown) tried to erect a new structure on the terrain which he hadleveled with such violent and destructive haste. But they were workingin a style and with materials that were unfamiliar to them, with unskilledand resentful workmen, and alien and therefore mistrusted foremen—ornone at all. Nevertheless, they accomplished a great deal. In the world ofthe nineteenth and twentieth centuries, Turkey had to modernize herselfor perish, and the men of the Tanzimat, with all their failings, laid theindispensable foundation for the more thorough modernization that wasto follow. (124)

This divergence between Lewis and Feldman is, of course, part of a muchgreater argument that is still with us today about the imperatives of modern-ization; the debate is raging in Turkey today, among other places. Here let usconfine ourselves to a discussion of the Ottoman nineteenth century and itssignificance. Feldman zeros in on the codification of the shari’a with thecreation of the Mecelle, because he sees it as the key development on the roadto tyranny.13

11. When I say “the many who agree with him,” I am referring to the formerly influential“decline thesis” in Ottoman historiography, in which the post-sixteenth century of the empirewas seen through the lens of decline.

12. Specifically, Lewis (1968, 123–24) quotes at length from Alolphus Slade, a Britishnaval officer who defended the liberty afforded under the ancien régime.

13. This was not the only major event. Feldman discusses the suspension of the legislatureand of the constitution in 1878 and argues that had legislative government been allowed todevelop, the marginalization of the ulema might well not have been so consequential. But thiswas the path not taken.


Feldman is certainly correct that the codification of the shari’a greatlyenhanced the authority of the state vis-à-vis the ulema. But, as with theearlier period, his insistent focus on law, and on Islamic law in particular,results in a rather narrow view of the nineteenth century. Two major experi-ments in obtaining some measure of “executive limitation” (to use Feldman’slanguage) in the opening decades of the nineteenth century should certainlyfigure prominently in any discussion of the roots of tyranny. Neither involvedthe ulema or the shari’a. Both came at a time of crisis when the empire wasfighting for its very existence due to external wars and internal upheaval. In1808 the newly installed Ottoman sultan Mahmut II signed an agreementwith the major figures of the provincial leadership who had been instrumentalin putting him on the throne. This document, known as the Sened-i Ittifak(Document of Agreement), delimited the power of the sultan with respectto taxes and laid out the responsibilities and obligations of the provincialgovernors, on the one hand, and the sultan, on the other.14 In the same year(although the relationship between the two events has not yet been investi-gated), the same sultan agreed to a janissary demand that he lower thebalcony from which the sultans traditionally addressed the troops. Thesoldiers complained that it was too high and distant (Kafadar 2007). In 1822,again under the pressure of events (the Greek revolt had broken out a yearearlier and a general war with Russia loomed on the horizon), that samesultan summoned the leadership of the janissaries to the palace. An Englishobserver in the capital at the time said this about the meeting at the palace:“from the general apprehension of the certainty of a war with Russia . . . avery extraordinary innovation was made in the constitution of the state, andsomething like an approximation to a popular government” (Walsh 1836,394–95).

Every student of Ottoman history knows what happened next. Just fouryears after this meeting, Sultan Mahmut II took the chance he had beenwaiting for and destroyed the janissary corps in a hail of gunfire. Similarly(although less spectacularly), the Sened-i Ittifak went nowhere. The fact thatthese efforts were stillborn (and what they intended, and might have accom-plished, is still a subject of great debate) does not change the fact that theyshould be included in any attempt to understand the Ottoman ancien régimeand how it was taken apart. Feldman does, after all, give some attention to theequally fruitless attempt to establish an Ottoman legislature; a constitutionand a legislature, implemented in 1876, were suspended by Sultan AbdulHamid II in 1878. By focusing on the failed legislative experiment, on the onehand, and the codification of the shari’a, on the other, Feldman reinforces theold dichotomy whereby the only perceived options are Westernizing reformsor Islamic law.

14. For all seven articles of the Document of Agreement, see Shaw and Shaw (1977, 2–3).


One of the things that puzzles Feldman about the ulema in the lastquarter of the nineteenth century—when the codification of the Mecellegot under way—is why they were so complacent, as it were, in their owndemise. He is well aware that this question has been asked before. Heyd’s(1961) famous article, written almost fifty years ago, explains that the ulema“were not farsighted enough to realize that the Westernizing reforms sup-ported by them would eventually destroy the Islamic character of theOttoman state” (96). Feldman’s own attempt to answer the question is farmore satisfactory. The incorporation of the scholars into the state apparatus,a theme that runs throughout the book, is part of the answer. The scholarsthemselves were put in charge of drawing up the Mecelle (Feldman 2008,66). Feldman also points out that, contrary to what is commonly believed,the reforms did not draw a sharp line between “religious” and “secular” law.This observation lines up with recent trends in Ottoman historiography.Whereas an earlier generation of scholars lumped all of the nineteenth-century reforms under the label “secular,” and everything outside the reformsas “religious,” it is now clear that things were a good deal more muddledthan that.15 Scholars writing on the empire today would take Feldman’sobservations and amplify them tenfold. The assumption that the religiousestablishment felt marginalized by the legal changes is just that—anassumption—and it needs to be investigated.

Take, for example, the introduction of lawyers. Lawyers were very mucha Western-style innovation that grew up alongside the newly establishedcourts, known as Nizamiye courts. An older tradition of scholarship, operatingin a schematic mode, would have placed lawyers and the new courts on oneside of the aisle, and the shari’a courts, run by the ulema, on the other. Morerecent work looks beyond the intent of the Istanbul-based reformers toconsider both the implementation and the reception of reform. Agmon’s(2006) study of legal culture in late Ottoman Palestine, for instance, upendsmany of the old assumptions about tradition versus modernity. Althoughthere was no official directive to introduce lawyers into the shari’a courtsystem, they began to show up anyway, evidently because they were hiredprivately by litigants. These litigants, generally the wealthier members ofsociety, may well have given their lawyers a general power of attorney torepresent them in any legal instance and, having cases before both theNizamiye and the shari’a courts, the lawyers found their way to the latter(175).

Whatever the case may be, lawyers came to be a regular presence in theshari’a courts, and there is no evidence—at least in Agmon’s study—of some

15. See Niyazi Berkes (1964) on why the ulema, whom he describes as the “custodians oftradition” (187), did not object to the new “secular” schools. He says they probably saw themas “outside their realm and, perhaps, ephemeral, worldly institutions expedient to the needs ofsecular life” (187).


sort of inherent conflict between the Islamic qadi (judge) and this new group,despite the fact that the adversarial concept is foreign to Islamic law. To thecontrary; in the two Palestinian cities Agmon studied—Haifa and Jaffa—thelawyer often ended up as a kind of court staff member (172). It seems thatthe same group of attorneys represented most litigants in the city and there-fore spent a substantial amount of time in court. Perhaps because of this, theyended up doing more than representing the clients that had brought theminto the court in the first place. The qadi drew upon them as a resource,assigning them to represent absent litigants (there was always a provisionfor this in Islamic law), to sign documents as notaries, or to serve as experts.Some lawyers even wound up being appointed as qadis or muftis for the state.This new narrative, painstakingly reconstructed from court records in Haifaand Jaffa, does not fit easily into older (but still popular) dichotomies about anemerging divide between new secular institutions and a hidebound religiousestablishment. The narrative does help us to understand the experience of theulema in the last decades of Ottoman rule, which is essential if the questionsthat Feldman raises are to be answered.

Scholarship on Egypt in the same period reveals a similar blurring ofboundaries that for too long have been assumed to be clear and self-evident.16

Khaled Fahmy’s (1999) recent study of the establishment of a police force inCairo and Alexandria is very suggestive in this regard. Police records revealthat ordinary people turned to the police to enforce their rights under theshari’a, even though, formally, the police force was the creation of secularreforms. The case of Ali Hamdun from the 1860s is particularly interesting(363). Hamdun was both the administrator and a beneficiary of an Islamicwaqf (endowment) in Alexandria. He got into a dispute with the otherbeneficiaries, and they all ended up in Alexandria’s shari’a court. The courtruled against him. Hamdun’s next move is very interesting. It is hard toimagine a more “Islamic” case, as it were—endowments were clearly underthe authority of the shari’a courts—but that did not stop him from taking hiscomplaint to the Alexandria police. He petitioned them to set up a specialcommittee of the four ulema who, it turns out, worked for the Alexandriapolice, in order for them to review his case.

Hamdun’s difficulties with the endowment reveal several importantthings. First, Hamdun took advantage of the presence of several differentcourt systems to go forum shopping. Given the vast literature on legal plu-ralism, this is entirely unsurprising behavior, but the bright aura (or heavyopprobrium, depending upon one’s point of view) that shimmers aroundIslamic law can hinder us from seeing it in so-called Islamic societies. Second,

16. Although Egypt enjoyed a certain degree of autonomy, it remained part of theOttoman Empire until the British invasion of 1882. Even then it was still formally an Ottomanprovince, but obviously a drastically new phase in the country’s history had begun.


the case reveals that, just as lawyers were to be found in the shari’a courts,ulema were to be found at the police station.

Finally, a more general argument derives from this case and many othersthat have been written about recently. Despite the agonized debates todayabout the compatibility of the shari’a with secular law (and secular life moregenerally), people at the time did not seem to find combining the twoproblematic. Khaled Fahmy (1999) nicely describes the intellectual work thatstill lies ahead:

Nor, it should be added, was there an apologetic attempt to show how“modern” al-shari’a was and how compatible it was with European lawand with requirements of modern life. These mental acrobatics thatcharacterized much of the intellectual output of so-called Islamicmodernists is [sic] more linked with nationalist politics and its obsessionwith showing how the nation’s “tradition” was always already “modern”and with demonstrating that the nation could easily “catch up” with themore “modern” West, than an accurate reflection of what law, both in itsshari’a and siyasi (state) aspects was commonly understood in much ofthe nineteenth century. How shari’a came to be perceived as incompat-ible with modernity, and how various nationalist intellectuals attemptedto refute this view are questions that require more detailed analysis.(362)

Fahmy’s approach to the social history of the law points to a hole inFeldman’s book, namely, the absence of society. Feldman’s positive evaluationof the role of the ulema, and in particular his rather pessimistic view of thenineteenth century, align him, to a certain extent, with recent trends inOttoman history writing as I have described. But in other ways, his presenta-tion of the last century of the empire is very much a throwback to an earlier wayof thinking about the reforms. The protagonists of his story are the Ottomanstate and its reformers; they do things that are either good or bad, and theresults flow from there. The problem with this model is that it fails to considerthe possibility that people’s interpretations of, and responses to, the relentlessflow of state initiatives in the nineteenth century are also a part of the story ofreform, in general, and of the ulema and Islamic law, in particular.17

There is one place where society does come into Feldman’s discussionfront and center, and that is in his short detour into the history of SaudiArabia.18 Although it is not clear that Feldman would apply his argument

17. A pioneering and powerful example of this new approach to the nineteenth centuryis Makdisi (2000).

18. Earlier in the book, with the powerful medieval social theorist Ibn Khaldun as hissource, Feldman (2008) does speak about the role of the ulema “with respect to the affairs thatmatter most to most people—the distribution of property” (40). But overall, society is not hisfocus.


more broadly, the Saudi example shows that the ulema and their guardian-ship of Islamic law are insufficient in terms of checking the authority of theexecutive, which is the problem that preoccupies him throughout the book.Feldman realizes he has a problem because the traditional Islamic constitu-tion, of which he has spoken so positively, is more intact in Saudi Arabia thananywhere else in the Islamic world. The law remains uncodified, and there isno written constitution. It is the scholars who have consistently and success-fully blocked the writing of such a document, realizing, as Feldman argues,that it would undercut their authority. As things stand now, “the formalauthority of the state derives from its implementation of the shari’a, asinterpreted by the scholars” (Feldman 2008, 95).

And yet, as Feldman readily and rather disarmingly admits, “SaudiArabia is in no sense a model for others to emulate. It is not on the road toWestern democracy, and it is far from clear that it is even tending towardconstitutional monarchy” (92). The reason he offers is oil. Oil, or ratherthe revenues from oil, have allowed the Saudi state to dominate society inways that are truly new and rather unique. In sketching out what he means,Feldman, for the first time, speaks not of the bilateral relationship betweenthe ruler and the scholars but of “the triangular relationship interconnectingthe rulers, the scholars and ruled” (100). In the classical Islamic order, theruler had to tax his subjects. This meant legitimacy needed to be establishedand then maintained. But popular legitimacy is much less significant whenthe state has its own massive revenues and, the argument runs, the scholarsare less of a check than they would normally be.

This short section on Saudi Arabia is a welcome addition for histori-ans, with their focus on the specific rather than the abstract. Elsewhere inthe book, Feldman’s consistent focus on what he calls an Islamic constitu-tional order makes for an argument that is admirably clear and, colloquiallyspeaking, “good to think with.” But Saudi Arabia muddies the waters. TheSaudi example demonstrates that the balance of power between the rulerand the ruled is always a shifting and complicated story, and it is one thatneeds to be included in any explanation of executive authority. Certainly inthe Ottoman Empire the ability of the sultan to command legitimacy fromsociety at large waxed and waned, with concomitant implications for theulema and Islamic law. And the historical contingency that Feldman showsto be at work in Saudi Arabia is an approach that is favored by Ottomanhistorians today. Most Ottomanists are wary of anything that hints atIslamic or “Oriental” exceptionalism, as too insistent a focus on Islam seemsto do. Ottoman historians today are more likely to start from the premisethat the empire was, like all premodern empires, an ancien régime firstand foremost, and, as such, eminently comparable to other ancien régimes,both East and West. Islam should not necessarily be the foundationalframework, the mandatory starting point, for understanding this long-livedempire.


OTTOMAN REALITIES AND THE SHADOW OFTHE PRESENT

I began with an anecdote from graduate school, and I will end withanother one. One semester, Sadiq al-Azm, the great Syrian philosopher andpublic intellectual, was a visiting professor and we, the graduate students,were able to take a class with him. It was the late 1980s, and the Islamicrevolution in Iran was still very much on everyone’s mind. Marxist intellec-tuals like al-Azm were trying to come to grips with what was seen as theinexplicable return of religion to the public arena and to politics. But al-Azmwas not only a Marxist professor; he was also the descendant of one of thegreat families of Syria that rose to prominence in the eighteenth centurywhen the country was under the rule of the Ottoman sultans. I remember himtelling us about his mother’s reaction to the events in Iran. As she watchedthe drama unfold on television, she asked her son what was going on in Iran.He told her that the Iranians were establishing an Islamic government. Thismystified her. What did they mean by an Islamic government? He triedseveral different explanations but, although she began to understand, she wasnot impressed. “I don’t know why they have to establish an Islamic govern-ment. Here in Syria, we’re Muslims, we have a government it’s an Islamicgovernment.” End of story!

The anecdote, amusing (and touching, in my view) as it is, also gets ata deeper truth that is not always sufficiently appreciated. If we want to graspthe place of Islam, and Islamic law, in the Ottoman Empire, one of the manytasks we must set for ourselves is to imagine a time when being Muslim was afact of life rather than an ideological position. This is a difficult mindset toretrieve precisely because defining the Islamic polity has become so extraor-dinarily politicized. Part of that politicization—for reasons that I will leave toothers to explain—has been an impassioned insistence on the centrality ofIslamic law in the Islamic polity. As Feldman points out, in reality, today’sIslamic radicals have a profoundly ambivalent relationship to the law.Nevertheless, the ideological position remains. The danger, then, is thata preoccupation with modern problems allows the present to extend itsheavy shadow over the past. Despite his book’s many virtues, I think, to acertain extent, this has happened to Feldman. The high visibility of Islamiclaw today (whether in reality or in rhetoric) has led him to overestimate theimportance of Islamic law in the Ottoman Empire, both as a source of law andas a check on the authority of the sovereign. He sets up the book this way, bysaying, on the first page, that the Islamic state is “reemerging” after it hadapparently ceased to exist. But we must guard against the danger of imagininga past that never existed. This is not to say that Islamic law and the ulemawere not important; they certainly were. But the Ottoman Empire was muchmore than an Islamic polity. It was an imperial order, it was a feudal order, itwas a multiethnic and a multireligious order, and it drew on an astonishing


array of traditions—Islamic, Byzantine, and Turkic being the principalones—in the construction of both its legal system and the polity moregenerally. The fact that the shari’a was just one building block among othersshould not lead us to conclude that people worried overly much aboutwhether or not they were living in a truly Muslim polity. Those are modernanxieties. The subjects of the sultan would have agreed, I think, with Sadiqal-Azm’s mother. They were Muslim, and the sultan was Muslim. Who couldtell them, then, that they were not living in an Islamic empire?

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CASES CITED

Termiello v. City of Chicago, 337 U.S. 1 (1949).


goodbye to the despot: feldman on islamic law in the ottoman empire

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