Teaching & Learning Guide for: The Legal History of the Ottoman Empire

Abstract

Author's Introduction‘The Legal History of the Ottoman Empire’ asks why Ottoman law has so frequently been relegated to the margins of Middle Eastern legal studies. After examining the comparative frameworks within which Ottoman law is ordinarily analyzed, the author argues that describing it as a theoretically empty derivative of Islamic law or as a failed attempt to institute European law ignores the complexity of all three traditions. She suggests that studying Ottoman legal history in its own right might be a useful entry point for broader conversations about the ways in which various, dynamic, and multifaceted systems of law interact.Author Recommends:Abou El‐Haj, Rifa‘at, Formation of the Modern State: The Ottoman Empire, Sixteenth to Eighteenth Centuries (Syracuse, NY: Syracuse University Press, 2005).Now in its second edition, Abou El‐Haj's Formation of the Modern State has become necessary reading for scholars in the field. Based on a theoretically informed analysis of primary source material, the book challenges earlier theses of Ottoman decay or decline. By positing the Ottoman Empire as a dynamic, modern state, similar to other states in Europe and Asia, Abou El‐Haj provides a useful general framework for discussing modern and early modern Ottoman law. A responsible, well‐researched introduction to Ottoman history and to theories of Ottoman sovereignty.Colin Imber, Ebu's‐Su‘ud: The Islamic Legal Tradition (Stanford, CA: Stanford University Press, 1997).Colin Imber's study of the Ottoman jurist Ebu's‐Su‘ud (c.1490–15740) is part of the Stanford series, ‘Jurists: Profiles in Legal Theory.’ As such, the book both describes the specific theory and practice of Ebu's‐Su‘ud and convincingly portrays his juridical work as the product of a ‘major thinker.’ Focusing on five different areas of law, including sovereignty, taxation, trusts, family law, and criminal law, Imber's overreaching question is whether Ebu's‐Su‘ud succeeded in developing a specifically Ottoman interpretation of Islamic law. The combination of the translations of Ebu's‐Su‘ud's writings and Imber's own careful analysis makes this book an indispensable starting point for studies of early Ottoman legal theory and practice.Leslie Peirce, Morality Tales: Law and Gender in the Ottoman Court of Aintab (Berkeley, CA: University of California Press, 2003).Set in the sixteenth‐century town of Aintab (present‐day Gaziantep) in Ottoman Anatolia, Morality Tales is a well‐regarded example of the detailed social history that can be written using local court records. Taking one year's worth of cases from the Aintab court, Peirce argues that Ottoman law was a fluid affair, meaningful only as it was put into practice on the ground. The book tells the story of local populations continuously negotiating their legal rights, relationships, and identities – with a particular emphasis on gendered identity. An excellent companion to Imber's study of Ebu's‐Su‘ud.Judith Tucker, In the House of the Law: Gender and Islamic Law in Ottoman Syria and Palestine (Berkeley, CA: University of California Press, 1998).A groundbreaking work on the relationship between gender and law in seventeenth‐ and eighteenth‐century Syria and Palestine, In the House of the Law examines the ways in which jurists and judges understood and responded to sexuality and sexual identity. Paying particular attention to court records and fatwas (legal opinions) Tucker argues that judges and jurists in this Arabic‐speaking Ottoman province consistently sought to define and protect the rights of Muslim women. In the House of the Law was one of the first books to address legal theory, legal practice, and gender systematically – and it remains a foundational work in the field.Online Materials:World History Sources: The Gülhane Proclamation, 1839: http://chnm.gmu.edu/worldhistorysources/analyzing/documents/analyzingdocsintronf.html This Web site provides translations of two key proto‐constitutional documents – the Gülhane Proclamation of 1839 and the 1856 Ottoman ‘Bill of Rights’. In addition to making the texts of these documents available, the site also includes a contextual introduction, an audio discussion of their importance, and a series of study questions.‘Fatwa’ and ‘Minorities’– Oxford Islamic Studies Online: http://www.oxfordislamicstudies.com/article/opr/t236/e0243 http://www.oxfordislamicstudies.com/article/opr/t236/e0536 Oxford Islamic Studies Online is a subscription‐based resource that includes extended scholarly definitions of legal terms, biographies, primary source material, and images. The site also provides a searchable Quran and a hijri date converter. Although accessing most of the content requires a password, some articles – such as the explanation of the fatwa and the discussion of minorities in Islamic law – are available to a general audience. Particularly valuable from the perspective of Ottoman legal studies, the site provides equally detailed coverage of most periods of Islamic history and does not privilege the Arabic‐speaking world over other Muslim regions.‘Resources’ page at Contemporary Islamic Legal Thought: Law, State, and World Order – Harvard Law School: http://cyber.law.harvard.edu/islamic/resources.html Although Ottoman legal thought does not receive a great deal of attention on this site, it is nonetheless a beautifully arranged resource for Islamic legal theory and practice in the Arabic speaking world and Pakistan. The ‘resources’ section provides glossaries of terms, background reading, guides for studying the Quran and hadith, primary source material, and a number of scholarly articles. The site was initially developed to accompany a class taught at Harvard Law School in the Spring of 2002, but it is now open and available to anyone interested in scholarly discussions of Islamic law.Sample Syllabus:Note: the following readings and topics of discussion assume an upper‐level undergraduate skill level. No prior knowledge of Ottoman History is required, but students should be able to engage with texts in a relatively sophisticated way. The first half of the course is devoted to a chronological overview of Ottoman law. The second half of the course addresses key themes in Ottoman legal theory and practice. Week 1: Introduction – Historiographical Issues Reading:Miller, ‘The Legal History of the Ottoman Empire’, History Compass 5 (2007): 10.1111/j.1478‐0542.2007.0O492.x. Weeks 2–3: Terms – kadi, fetva, hadith Reading: Qadi/Kadi: H. Gerber, ‘Chapter 2: The Making of Ottoman Law’, in State, Society, and Law in Islam: Ottoman Law in Comparative Perspective (Albany, NY: SUNY, 1994), 58–78. Fetva/Fatwa: http://www.oxfordislamicstudies.com/article/opr/t236/e0243.Gerber, ‘Chapter 3: The Fetva in the Legal System’, 79–112. Hadith: http://www.oxfordislamicstudies.com/article/opr/t236/e0286. Weeks 4–7: Law and Sovereignty in the Ottoman Empire, 1500 to 1800 Reading:Imber, ‘Part I: The Historical and Legal Background’, in Ebu's‐Su‘ud: The Islamic Legal Tradition (Stanford, CA: Stanford, 1997), 3–64.Imber, ‘Part II: The Sources of Legal Authority: Holy Law and the Ottoman Sultan’, 65–114.Rifa’at ‘Ali Abou el‐Haj, Formation of the Modern State: The Ottoman Empire Sixteenth to Eighteenth Centuries (Syracuse, NY: Syracuse University Press, 2005). Week 8: Legal Orders Reading:G. Hagen, ‘Legitimacy and World Order’, in Hakan Karateke and Maurus Reinkowski (eds.), Legitimizing the Order: The Ottoman Rhetoric of State Power (Leiden: Brill, 2005), 55–84. Week 9: Legal Spaces and Legal Narratives Reading:N. al‐Qattan, ‘Inside the Ottoman Courthouse: Territorial Law at the Intersection of State and Religion’, in Virginia Aksan and Daniel Goffman (eds), The Early Modern Ottomans: Remapping the Empire (Cambridge: Cambridge University Press, 2007), 201–12.B. Ergene, ‘Evidence in Ottoman Courts: Oral and Written Documentation in Early‐Modern Courts of Islamic Law’, Journal of the American Oriental Society 124/3 (July–September 2004): 471–491. Weeks 10–11: Law, Gender, and Sexuality Reading:Imber, ‘Chapter 7: Marriage and Its Dissolution’, 165–209.J. Tucker, ‘Chapter 1: The Law, the Courts, and the Muftis’, In the House of the Law: Gender and Islamic Law in Ottoman Syria and Palestine (Berkeley, CA: University of California, 1998), 1–36.Tucker, ‘Chapter 2: With Her Consent: Marriage’, 37–77.R. A. Miller, ‘Politicizing Reproduction in Comparative Perspective: Ottoman, Turkish, and French Approaches to Abortion Law’, Hawwa: Journal of Women in the Middle East and the Islamic World 5/1 (2007): 73–89. Week 12: The Nineteenth Century – Rights, Constitutionalism, and Secularism Reading:The Gülhane Proclamation and the Ottoman ‘Bill of Rights’: http://chnm.gmu.edu/worldhistorysources/analyzing/documents/analyzingdocsintronf.html(Read the texts and also listen to Professor Khoury's discussion of them)T. Asad, ‘Chapter 6: Secularism, Nation‐State, Religion’, Formations of the Secular: Christianity, Islam, Modernity (Stanford, CA: Stanford, 2003), 181–201.Optional:Focus Questions: Are ‘religious’ and ‘secular’ meaningful legal categories in the Ottoman Empire? In general? Why or why not? What is the relationship between legal theory and legal practice? Under what circumstances do scholars emphasize one or the other? To what extent can we talk about ‘rights’ in the early modern Ottoman legal system? In the modern Ottoman legal system? What rhetorical role do rights play in legal history in general? To what extent does law produce political and sexual identity? To what extent does law reflect political and sexual identity? Is it possible to separate these two processes?