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The Second Formation of Islamic Law: The Post-Mongol Context of the Ottoman Adoption of a School of Law

  • Guy Burak (a1)
Abstract

This article proposes a comparative analytical framework to study changes in Islamic law during the post-Mongol period, particularly the rise of the official school of law (or state madhhab). Taking as my case study the Ottoman adoption of a particular branch within the Sunni Hanafi school of law, I suggest that this adoption marks a new chapter in Islamic legal history. In earlier periods, while rulers appointed judges and thus regulated the adjudication procedures, they did not intervene, at least theoretically, in the structure and doctrine of the schools of law, which remained the relatively autonomous realm of the jurists. The Ottoman adoption of the school, by contrast, was not merely an act of state patronage, since the dynasty played an important role in regulating the school's structure and doctrine. To this end, it employed a set of administrative and institutional practices, such as the development of an imperial learned hierarchy with standardized career and training tracks and the appointment of jurisconsults (muftis). Some of these practices were found in other polities across the eastern Islamic lands in the post-Mongol period, but these similarities have not been treated comparatively in modern historiography. They suggest that the Ottoman case was part of a broader legal culture that spanned several polities across the region. This article outlines a framework that will enable historians of Islamic law to treat these similarities in a more coherent manner. The framework raises key issues in the historiography of Islamic law and its nineteenth-century modernization.

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References
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1 Grabar, Oleg, The Formation of Islamic Art (New Haven: Yale University Press, 1973).

2 Cited in Berlekamp, Persis, Wonder, Image, & Cosmos in Medieval Islam (New Haven: Yale University Press, 2011), 12.

3 I use the term “dynastic law” and not state or secular law because the dynasty and its ancestors are the most important source of legitimacy. The term also captures the significance of the dynasty within the broader state or government.

4 Woods, John E., The Aqquyunlu: Clan, Confederation, Empire: A Study in 15th/9th Century Turko-Iranian Politics (Minneapolis: Bibliotheca Islamica, 1976), 5.

5 Hüseyin Yılmaz, The Sultan and the Sultanate: Envisioning Rulership in the Age of Süleymān the Lawgiver (1520–1566) (PhD diss., Harvard University, 2004); Alam, Muzaffar, The Language of Political Islam: India, 1200–1800 (Chicago: University of Chicago Press, 2004); Broadbridge, Anne F., Kingship and Ideology in the Islamic and Mongol Worlds (Cambridge: Cambridge University Press, 2008); Moin, A. Azfar, The Millennial Sovereign: Sacred Kingship and Sainthood in Islam (New York: Columbia University Press, 2012).

6 Naṣūḥü's-Silāḥī (Maṭrāḳçī), Beyān-ı Menāzil-i Sefer-i ‘İrāḳeyn-i Sulṭān Süleymān Ḫān (Ankara: Türk Tarih Kurumu, 1976), 46b–61a; Muṣṭafā, Celālzāde, Ṭabaḳāt ül-Memalīk ve Deracāt ül-Mesālik (Wiesbaden: Franz Steiner Verlag GMBH, 1981), 258b–59a; Eyyûbî, Menâḳib-i Sulṭan Süleyman (Risâle-i Pâdişâh-nâme) (Ankara: Kültür Bakanlığı, 1991), 88; Peçevi, İbrahim, Tarih-i Peçevi (Istanbul: Matbaa-i Âmire, 1865–1867), 1: 184–85.

7 Peters, Rudolph, “What Does It Mean to Be an Official Madhhab? Hanafism and the Ottoman Empire,” in Baerman, Peri, Peters, Rudolph, and Vogel, Frank E., eds., The Islamic School of Law: Evolution, Devolution, and Progress (Cambridge: Islamic Legal Studies Program, Harvard Law School, distributed by Harvard University Press, 2005), 147–58.

8 The literature on the formation of the schools of law is vast. Among the most important works on this issue are: Melchert, Christopher, The Formation of the Sunni Schools of Law, 9th–10th Centuries CE (Leiden: Brill, 1997); Brockopp, Jonathan E., Early Maliki Law: Ibn ‘Abd al-Hakam and His Major Compendium of Jurisprudence (Leiden: Brill, 2000); Hallaq, Wael B., Authority, Continuity and Change in Islamic Law (New York: Cambridge University Press, 2001); Hurvitz, Nimrod, The Formation of Hanbalism: Piety into Power (London: RouteledgeCurzon, 2002); Tsafrir, Nurit, The History of an Islamic School of Law: The Early Spread of Hanafism, (Cambridge: Islamic Legal Studies Program, Harvard Law School, distributed by Harvard University Press, 2004); Ahmed El Shamsy, From Tradition to Law: The Origins and Early Development of the Shafi‘i School of Law in Ninth-Century Egypt (PhD diss., Harvard University, 2009).

9 Hallaq, Authority, 121–65. Kaya, Eyyup Said, “Continuity and Change in Islamic Law: The Concept of Madhhab and the Dimensions of Legal Disagreement in Hanafi Scholarship of the Tenth Century,” in Baerman, Peri, Peters, Rudolph, and Vogel, Frank E., eds., The Islamic School of Law: Evolution, Devolution, and Progress (Cambridge: Islamic Legal Studies Program, Harvard Law School, 2005), 2640.

10 For example, Judd, Steven C., “Al-Awzā‘ī and Sufyān al-Thawrī: The Umayyad Madhhab?The Islamic School of Law: Evolution, Devolution, and Progress (Cambridge: Islamic Legal Studies Program, Harvard Law School, 2005), 1025; Tsafrir, History of an Islamic School of Law.

11 Jackson, Sherman, Islamic Law and the State: The Constitutional Jurisprudence of Shihāb al-Dīn al-Qarafī (Leiden and New York: Brill, 1996), 5356.

12 Rapoport, Yossef, “Legal Diversity in the Age of Taqlid: The Four Chief Qadis under the Mamluks,” Islamic Law and Society 10, 2 (2003): 210–28.

13 See, for example, Berkey, Jonathan Porter, The Transmission of Knowledge in Medieval Cairo: A Social History of Islamic Education (Princeton: Princeton University Press, 1992); Chamberlain, Michael, Knowledge and Social Practice in Medieval Damascus, 1190–1350 (Cambridge: Cambridge University Press, 1994);Ephrat, Daphna, A Learned Society in a Period of Transition: The Sunni “Ulama” of Eleventh-Century Baghdad (Albany: State University of New York Press, 2000).

14 Jackson, Islamic Law, xv. See also Johansen, Baber, “Secular and Religious Elements in Hanafite Law: Function and Limits of the Absolute Character of Government Authority,” in Gellner, E. and Vatin, J. C., eds., Islam et Politique au Maghreb (Paris: Editions du CNRS, 1981), 281303.

15 Repp, Richard C., The Müfti of Istanbul: A Study in the Development of the Ottoman Learned Hierarchy (London: Ithaca Press, 1986); Abdurrahman Atcil, The Formation of the Ottoman Learned Class and Legal Scholarship (1300–1600) (PhD diss., University of Chicago, 2010).

16 There are important exceptions: Imber, Colin, Ebu's-Su‘ud: The Islamic Legal Tradition (Stanford: Stanford University Press, 1997); Rudolph Peters, “What Does It Mean.”

17 Much has been written on muftis. For example: Masud, Muhammad Khalid, Messick, Brinkley, and Powers, David S., eds., Islamic Legal Interpretation: Muftis and Their Fatwas, (Cambridge: Harvard University Press, 1996); Calder, Norman, “al-Nawawi's Typology of Muftis and Its Significance for a General Theory of Islamic Law,” Islamic Law and Society 3, 2 (1996): 137–64; Hallaq, Wael B., “From Fatwas to Furu‘: Growth and Change in Islamic Substantive Law,” Islamic Law and Society 1, 1 (1994): 2965; Messick, Brinkley, “The Mufti, the Text and the World: Legal Interpretation in Yemen,” Man 12, 1 (1986): 102–19; Hallaq, Authority.

18 This was also true in the Arab lands of the Ottoman Empire in later centuries.

19 Stewart, Devin, “The Doctorate of Islamic Law in Mamluk Egypt and Syria,” in Lowry, Joseph E., Stewart, Devin J., and Toorawa, Shawkat M., eds., Law and Education in Medieval Islam: Studies in Memory of Professor George Makdisi (Cambridge: E.J.W. Gibb Memorial Trust, 2004), 4590.

20 Guy Burak, The Abu Hanifah of His Time: Islamic Law, Jurisprudential Authority and Empire in the Ottoman Domains (PhD diss., New York University, 2012), 43–114.

21 ‘Ali, Mustafa b. Ahmed, Künh ül-ahbâr (Istanbul: Darü’t-Tiba‛âti'l-‛Âmîre, 1860–1861), vol. 1: 37. According to Mustafa ‘Ali, this trend continued under Mehmet II's successors, Beyazid II and Selim I, the latter after the conquest of Greater Syria and Egypt brought scholars, poets, and jurists from these lands to the capital (ibid.).

22 Repp, Müfti of Istanbul; Atcil, Formation of the Ottoman Learned Class; Burak, Abu Hanifah.

23 Ahmed, Shahab and Filipovic, Nenad, “The Sultan's Syllabus: A Curriculum for the Ottoman Imperial Medreses Prescribed in a Fermān of Qānūnī Süleymān, Dated 973 (1565),” Studia Islamica 98/99 (2004): 183218; Akgündüz, Ahmed, ed., Osmanli Kanunnameleri ve Hukukî Tahlilleri (Istanbul: Fey Vakfı Yayınları, 1992), vol. 4: 662–64.

24 Burak, Abu Hanifah, 244–45.

25 Imber, Ebu's-Su‘ud, 106–10. See also Peters, “What Does It Mean,” 148–49.

26 For a discussion of this body of genealogies, see Burak, Abu Hanifah, 115–215. In addition to these genealogies, a sizable corpus of biographical dictionaries emerged that were devoted to senior members of the imperial learned hierarchy. The founder of this genre was the sixteenth-century jurist and member of the hierarchy, Ahmed b. Mustafa Taşköprüzade (d. 1561). See Taşköprüzade, Ahmed b. Mustafa, al-Shaqa'iq al-nu‘maniyya fī ‘ulama’ al-dawla al-‘Uthmaniyya (Beirut: Dār al-Kitāb al-‘Arabī, 1975).

27 For example: Repp, Müfti of Istanbul; Atcil, Formation of the Ottoman Learned Class; Burak, Abu Hanifah.

28 For example: Halil Inalcik, s.v. “Kanun”; and Imber, Ebu's-Su'ud; F. Babinger, s.v. “Nishandji,” both in Encyclopedia of Islam (2d ed.), http://referenceworks.brillonline.com/browse/encyclopaedia-of-islam-2; Heyd, Uriel, Studies in Old Ottoman Criminal Law (Oxford: Clarendon Press, 1973); Greene, Molly, A Shared World: Christians and Muslims in the Early Modern Mediterranean (Princeton: Princeton University Press, 2000), 2732; Ze'evi, Dror, Producing Desire: Changing Sexual Discourse in the Ottoman Middle East, 1500–1900 (Berkeley: University of California Press, 2006), 50; Snjezana Buzov, The Lawgiver and His Lawmakers: The Role of Legal Discourse in the Change of Ottoman Imperial Culture (PhD diss., University of Chicago, 2005); Timothy J. Fitzgerald, Ottoman Methods of Conquest: Legal Imperialism and the City of Aleppo, 1480–1570 (PhD diss., Harvard University, 2008), 188–95.

29 Başak Tuğ, Politics of Honor: The Institutional and Social Frontiers of “Illicit” Sex in Mid-Eighteenth-Century Ottoman Anatolia (PhD diss., New York University, 2009), 40–96; Fleischer, Cornell H., Bureaucrat and Intellectual in the Ottoman Empire: The Historian Mustafa Âli (1541–1600) (Princeton: Princeton University Press, 1986), 191200.

30 The eminent sixteenth-century chief mufti Ebû's-Su‘ûd Efendi (d. 1574) is often seen to have been an important contributor to the “reconciliation” of dynastic and Islamic law in the Ottoman context. See, for example, Fleischer, Cornell H., “The Lawgiver as Messiah: The Making of Imperial Image in the Reign of Süleyman,” in Veinstein, Gilles, ed., Soliman le Magnifique et son temps, Galeries Nationales du Grend Palais, 7–10 March 1990 (Paris: Documentation française, 1992), 171–72; Yılmaz, Sultan and the Sultanate, 74; Buzov, Lawgiver and His Lawmakers. Some scholars, however, have questioned the extent to which Ebû's-Su‘ûd succeeded in attaining this goal. Imber, Ebu's-Su‘ud.

31 Mandaville, Jon E., “Usurious Piety: The Cash Waqf Controversy in the Ottoman Empire,” International Journal of Middle Eastern Studies 10, 3 (1979): 289308.

32 Tezcan, Baki, “The Ottoman Mevali as ‘Lords of the Law,’” Journal of Islamic Studies 20, 3 (2009): 404–6. See also Tezcan's, “Some Thoughts on the Politics of Early Modern Ottoman Science,” in Quataert, Donald and Tezcan, Baki, eds., Beyond Dominant Paradigms in Ottoman and Middle Eastern/North African Studies (Istanbul: Center for Islamic Studies [İSAM], 2010), 135–56.

33 Burak, Abu Hanifah, 83.

34 For example: Cosmo, Nicola Di, Frank, Allen J., and Golden, Peter B., The Cambridge History of Inner Asia: The Chinggisid Age (Cambridge: Cambridge University Press, 2009).

35 Emire Cihan Muslu, Ottoman-Mamluk Relations: Diplomacy and Perceptions (PhD diss., Harvard University, 2007); Necipoğlu, Gülrü, “Süleyman the Magnificent and the Representation of Power in the Context of Ottoman-Hapsburg-Papal Rivalry,” Art Bulletin 71, 3 (1989): 401–27.

36 Balabanlilar, Lisa, Imperial Identity in the Mughal Empire: Memory and Dynastic Politics in Early Modern South and Central Asia (New York: I. B. Tauris, 2012); A. Azfar Moin, Millennial Sovereign.

37 Abisaab, See Rula Jurdi, Converting Persia: Religion and Power in the Safavid Empire (New York: I. B. Tauris, 2004); Stewart, Devin J., “The First Shaykh al-Islām of the Safavid Capital of Qavin,” Journal of the American Oriental Society 116, 3 (1996): 387405.

38 Little is known about educational institutions and the career tracks of jurists in Central Asia and the Mughal Empire in this period.

39 Manz, Power, Politics and Religion, 213; Ando, Shiro, “The Shaykh al-Islām as a Timurid Office: A Preliminary Study,” Islamic Studies 33, 2–3 (1994): 253–55.

40 Repp, Müfti of Istanbul, 73–124.

41 Ruzbahan, Fazl Allah b., Sulūk al-mulūk (Tehran: Intishārāt-i Khvārazmī, 1984), 96.

42 Ibid., 114–15.

43 One of these muftis was Muhammad b. Husam al-Dīn al-Quhistani (d. 1554), the author of Jami‘ al-rumuz. Muhammad b. ‘Abd al-Rahman al-Ghazzi, Diwan al-Islam (Beirut: Dar al-Kutub al-‘Ilmiyya, 1990), vol. 4: 3536; ‘Abd al-Hayy b. Ahmad b. al-‘Imad, Shadharat al-dhahab fi akhbār man dhahab (Beirut: Dar al-Kutub al-‘Ilmiyya, 1980–), vol. 8: 300.

44 Bilgrami, Rafat M., Religious and Quasi-Religious Departments of the Mughal Period (1556–1707) (New Delhi: Munshiram Manoharlal Publishers, 1984); Bhatia, M. L., Administrative History of Medieval India: A Study of Muslim Jurisprudence under Aurgangzeb (New Delhi: Radha Publications, 1992).

45 Heyd, Uriel, “Some Aspects of the Ottoman Fetvâ,” Bulletin of the School of Oriental and African Studies 32 (1969): 3556; Selma Zecevic, On the Margin of Text, on the Margin of Empire: Geography, Identity, and Fatwá-Text in Ottoman Bosnia (PhD diss., Columbia University, 2007); Burak, Abu Hanifah, 438–43.

46 Guenther, Alan N., “Ḥanafī Fiqh in Mughal India: The Fatāwá-i ‘Alāmgīrī, ” in Eaton, Richard M., ed., India's Islamic Traditions, 711–1750 (Oxford: Oxford University Press, 2003), 209–30. As Joseph Schacht pointed out, the title also alludes to similar earlier projects, such as the fourteenth-century al-Fatawa al-Tatarkhaniyya. Schacht, Joseph, “On the Title of the Fatāwā al-‘Ālamgīriyya, ” in Bosworth, C. E., ed., Iran and Islam: In Memory of the Late Vladimir Minorsky (Edinburgh: Edinburgh University Press, 1971), 475–78. Al-Fatawa al-‘Alamgiriyya, despite the Mughal sponsorship, was widely consulted in other parts of the Hanafi world, especially in the Ottoman Empire (ibid., 475).

47 Morley, Willian H., The Administration of Justice in British India, Its Past History and Present State: Comprising an Account of the Laws Peculiar to India (London: William & Norgate, Stevens & Norton, Lepage & Co., 1858), 294.

48 Despite the importance of Timur in their worldview, the Timurids and the Mughals emphasized Timur's and, by extension, their own link to Chinggis Khan and his lineage. On the significance of Timur in Mughal India and Central Asia, see Dale, Stephen F., The Garden of the Eight Paradises: Bābur and the Culture of Empire in Central Asia, Afghanistan and India (1483–1530) (Leiden: Brill, 2004); Balabanlilar, Imperial Identity; Moin, Millennial Sovereign, 23–55; Sela, Ron, The Legendary Biographies of Tamerlane: Islam and Heroic Apocrypha in Central Asia (Cambridge: Cambridge University Press, 2011). On the importance of Chinggis Khan in Central Asia, see McChesney, Robert D., Central Asia: Foundations of Change (Princeton: Darwin Press, 1996), 117–48.

49 Subrahmanyam, Sanjay, “Connected Histories: Notes Toward a Reconfiguration of Early Modern Eurasia,” Modern Asian Studies 31 (1997): 735–62.

50 Ayalon, David, “The Great Yasa of Chingiz Khān: A Reexamination (Parts A–D),” Studia Islamica 33 (1971): 97140, 34 (1971): 151–80, 36 (1972): 113–58, 38 (1973): 107–56; Morgan, David, “The ‘Great’ “Yasa” of Chingiz Khān' and Mongol Law in the Ilkhānate,” Bulletin of the School of Oriental and African Studies 49, 1 (1986): 163–76; and, Morgan's, “The ‘Great Yasa of Chinggis Khān’ Revisited,” in Amitai, R. and Biran, M., eds., Mongols, Turks and Others (Leiden: Brill, 2005), 291308; Humphrey, Caroline and Hürelbaatar, A., “The Term Törü in Mongolian History,” in Sneath, David, ed., Imperial Statecraft: Political Forms and Techniques of Governance in Inner Asia, Sixth-Twentieth Centuries (Bellingham: Center for East Asian Studies, Western Washington University, 2006): 265–93.

51 Stubtelny, Maria E., Timurids in Transition: Turko-Persian Politics and Acculturation in Medieval Iran (Leiden: Brill, 2007): 1617.

52 On Ahmedi, see Kemal Silay, “Introduction,” in Tacü'ddin İbrahim b. Ahmedi, Hızır, History of the Kings of the Ottoman Lineage and Their Holy Raids against the Infidels (Cambridge: Department of Near Eastern Languages and Literatures, Harvard University, 2004), xiii–iv.

53 Ahmedi, History of the Kings, 1 (for the Turkish, see p. 25).

54 Fleischer, Bureaucrat and Intellectual, 284.

55 Kastritsis, Dimitris J., The Sons of Beyazid: Empire Building and Representation in the Ottoman Civil War of 1402–1413 (Leiden: Brill, 2007), 224; on ‘Abdülvasi Çelebi and his work, see pp. 217–20.

56 Subtelny, Timurids in Transition, 16–17.

57 Bey, Feridun, Münşeatü'l-Selatin (n.p: n.p, 1858), vol. 1: 143–44. The translation appears in Inalcık, Halil, “The Ottoman Succession and Its Relation to the Turkish Concept of Sovereignty,” in The Middle East and the Balkans under the Ottoman Empire: Essays on Economy and Society (Bloomington: Indiana University Turkish Studies and Turkish Ministry of Culture Joint Series, 1993), 57. On Feridun Bey, see Mordtmann, J. H. and Menage, V. L., “Feridun Bey,” Encyclopedia of Islam (2d ed.), http://referenceworks.brillonline.com/browse/encyclopaedia-of-islam-2.

58 The famous fifteenth-century Aqquynulu ruler Uzun Hasan also issued his own yasaknāmes and ḳânûnnāmes in his teritorries. See: Dale, The Muslim Empires of the Ottomans, Safavids, and Mughals (Cambridge: Cambridge University Press, 2010), 8283.

59 Fleischer, Bureaucrat and Intellectual, 290.

60 Subtelny, Timurids in Transition, 18.

61 Manz, Beatrice Forbes, Power, Politics and Religion in Timurid Iran (Cambridge: Cambridge University Press, 2007), 28. On the conversion of the Ilkhāns to Islam and its ideological implications, see Broadbridge, Anne F., Kingship and Ideology in the Islamic and Mongol Worlds (Cambridge: Cambridge University Press, 2008), ch. 3.

62 Dale, Stephen F., The Garden of the Eight Paradises: Bābur and the Culture of Empire in Central Asia, Afghanistan and India (1483–1530) (Leiden: Brill, 2004), 171.

63 Isogai, Ken'ichi, “Yasa and Sharī‘ah in Early 16th Century Central Asia,” L'Heritage timourdie Iran-Asia central—Inde XVe–XVIIIe siècles 3–4 (1997): 91103.

64 Zenbilli ‘Ali Cemali, Fetava, MS Süleymaniye Library (Istanbul), Fatih 2390, 75r.

65 Winter, Michael, “Ottoman Qadis in Damascus in the 16th–18th Centuries,” in Shaham, Ron, ed., Law, Custom, and Statute in the Muslim World: Studies in Honor of Aharon Layish (Leiden: Brill, 2007): 8990; Meshal, Reem, “Antagonistic Sharī‘as and the Construction of Orthodoxy in Sixteenth-Century Ottoman Cairo,” Journal of Islamic Studies 21, 2: 182212. On the other hand, it appears that dynasts tried to tap into the Islamic Sunni discourse of legal authority. In his report of the debate between the Özbek khan and the jurists, Ibn Ruzbahan accused the former of exerting his own discretion (performing ijtihād), although he was not entitled to do so (Isogai, “Yasa and Sharī‘ah). This is an interesting comment, for it suggests that some jurists used the legal discourse of authority that was central to the organization and regulation of the school of law—namely, independent discretion to interpret revelation, ijtihād, and following/imitation of more knowledgeable authorities, taqlīd—to limit the authority of the khan to derive new laws. Interestingly, several decades later, in the Mughal India, the emperor Akbar also employed the Islamic authoritative discourse and claimed the right to derive new laws on the basis of ijtihād (Moin, Millennial Sovereign, 139–40).

66 For example: Zaman, Muhammad Qasim, The Ulama in Contemporary Islam: Custodian of Change (Princeton: Princeton University Press, 2002), ch. 1; Hallaq, Wael B., Sharī‘ah: Theory, Practice, Transformations (Cambridge: Cambridge University Press, 2009); Mallat, Chibli, Introduction to Middle Eastern Law (Oxford: Oxford University Press, 2009).

67 Cited in Kozma, Liat, Policing Egyptian Women: Sex, Law, and Medicine in Khedival Egypt (Syracuse: Syracuse University Press, 2011), 12.

68 Peters, Rudolph, “Muḥammad al-‘Abbāsī al-Mahdī (d. 1897), Grand Mufti of Egypt, and His al-Fatāwá al-Mahdīyya,” Islamic Law and Society 1 (1994): 6682; Kozma, Policing Egyptian Women, 11–12.

69 Kozma, Policing Egyptian Women, 12.

70 Travers, Robert, Ideology and Empire in Eighteenth-Century India: The British Bengal (Cambridge: Cambridge University Press, 2007), 124–25.

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