An Introduction to Islamic Law (17 page)

The
qanun
’s decrees, frequently restated in the
qanunname
s of several succeeding sultans, in effect constituted a direct prohibition against conduct by government servants that might lead to injustice being inflicted upon the civilian population. The
qanun
of
Sulayman the Lawgiver (r. 1520–66), for example, states that the “executive officials shall not imprison nor injure any person without the cognizance of the [Shari
a] judge. And they shall collect a fine according to [the nature of] a person’s offense and they shall take no more [than is due]. If they do, the judge shall rule on the amount of the excess and restore it [to the victim].”
³
The
qanun
therefore upheld the Shari
a by enhancing and supplementing its position and provisions, while the Shari
a, on the other hand, required the intervention of sultanic justice. This complementary duality was endlessly expressed in various decrees and letters in the judicial discourse of the Ottoman authorities, be they sultans, Shaykh al-Islams, viziers or
qadi
s: justice had always to be carried out “according to the Shar
and
qanun
.”
⁴

We have already said that one of the central changes effected by the Ottomans was their adoption of the
Hanafi school as the official law of the Empire. The other schools never vanished, of course, and they retained followers – albeit decreasingly – in the population as well as in the judiciary. The farther a province lay from Istanbul, and the less strategic it was, the less influenced it was by this policy. But provinces and regions adjacent to the capital were affected significantly. Every major city or provincial capital in the Empire was headed by a Hanafi
qadi al-qudat
, a chief justice, who appointed deputies in several quarters of the city as well as throughout the province (appointment of such deputy-judges by the chief
qadi
of the city or region was a common practice). Some of these deputy-judges were non-Hanafis who held court in neighborhoods and large villages whose inhabitants were either Shafi
i, Hanbali or Maliki. But the official system and government apparatus were Hanafi to the core, and any advancement in a government legal career (under the Ottomans the most prestigious and powerful of all legal arenas) presupposed Hanafi legal education as well as membership in the Hanafi school.

If the chief
qadi
s appointed from Istanbul were all Hanafi, it was because the
legists who ran the judiciary were products of the exclusively
Hanafi royal
madrasa
s of Istanbul. And in order to rise to the highest levels of judicial and government careers, they had to stay Hanafi through and through. The effects of this policy were clear: the legal profession, law students and legists of non-Hanafi persuasion were encouraged to, and indeed did, migrate to the Hanafi school in search of
career opportunities. For instance, in Greater Syria, the majority of the population in general and the population of the legists in particular were
Shafi
is at the time of the Ottoman conquests in 1516–17, whereas by the end of the nineteenth century only a tiny minority of Shafi
is remained in that region, the rest having become Hanafis.

Such effects constituted the culmination of a deliberate effort to create uniformity in the subject populations, and to streamline the administration of justice throughout the Empire if possible, but certainly throughout each of its main provinces. The age of
uniformity had begun, in the Ottoman Empire no less than in Europe. Uniformity, in other words, entailed low costs of governing, management and control, for, after all, economic efficiency in domination was a desideratum of any form of rule.

An indirect effect of adopting Hanafism
as the official school of the Empire was the considerable
marginalization of legists from the Arabic-speaking provinces, for they had little, if any, role to play in the
administrative bureaucracy centered in
Istanbul. The same appears to have been true of the Balkans. Not only were the high-ranking administrators in the capital all “
Turks” (known as Rum), raised by the Istanbul elites and
educated in the
royal
madrasa
s of the same city, but so was virtually every
chief
qadi
appointed to run the judicial affairs of the Arab provinces, including
Syria and
Egypt. Syrian and Egyptian
mufti
s and
qadi
s received their education locally, particularly in Egypt. These
mufti
s, while enjoying local prestige by virtue of their erudition and religious–social standing, remained outside the pale of officialdom, just as the locally trained
qadi
s could aspire to no higher position than that of deputy-
qadi
under the “Turkish” chief justice.

Placing the administration of the Empire’s affairs in the hands of “Turks” was not a nationalist act, however. Of distinctly European origin, nationalism was not on the minds of Ottomans before the second half of the nineteenth century. Rather, the Turkification of Ottoman administration aimed at creating a unified and centralized bureaucracy that could efficiently manage a diverse Empire with multiple ethnicities, religious denominations, languages and cultures and an endless variety of sub-cultures. On the one hand, the “universal”
qanun
s aimed to create an overarching unity within the Empire as a whole, while those
qanun
s issued for cities or even specific courts were intended to impose law and order while showing great sensitivity to the cultural uniqueness of the recipients. On the other hand, the provincial
qanun
s represented a middle stage between the two, striving to balance both the local context of the city and that of the Empire as a whole. Just as the universal
qanun
s operated in conjunction with the Istanbul-based legal education (both emitting centralized values of “Turkish” administration), the regional–local
qanun
s and the indigenous deputy-
qadi
s represented Istanbul’s awareness of, and attention to, regional differences and local variety
.

Centralized bureaucracy,
judicial administration and
legal education in the capital were momentous developments that served the Ottomans well during the first three centuries of their rule and they had a considerable effect on the course of events leading to the Empire’s encounter with the modern West. We shall deal with the impact in the next chapter, but here we need only stress the newness and tenacity of Ottoman centralization
at all levels of judicial administration
.

The Ottomans were the first in Islamic history to commit the
court to a particular residence, a courthouse so to speak.
Qadi
s could no longer hold their
majlis
in the yards of mosques, in
madrasa
s or in their residences. Existing “public” buildings were modified for this purpose, and the number of courts was increased significantly when compared to the pre-Ottoman period. Whereas it was typical before the Ottomans to have in or around the commercial city-center a total of four courts, each representing one of the four schools, the Ottomans had several around the city, usually in large neighborhoods. The Ottomans were also the first, it
seems, to bestow on the
court register a public status. The
qadi
s could no longer keep these registers in their private custody, but had to surrender them to a government department.