MECACS Student Essay Prize – Honourable Mention (Honours)
Dorothy Greene graduated in June 2023 with MA (Hons) in Middle Eastern Studies and Persian. This essay received an Honourable Mention in the Honours section of the 2023 MECACS Student Essay competition.
Shari’a and Kanun: A Study of the Ottoman Empire’s Legal System in the Fifteenth and Sixteenth Centuries
In the period between the conquest of Constantinople and the end of the sixteenth century, the Ottoman Empire rapidly increased in strength and prestige, and consequently those in power had to develop an advanced legal system to effectively govern their vast territory. The government was intent on presenting the Empire as a pious, Sunni state to both citizens and rival polities, which it accomplished by propagating the idea that shari’a law (and kanun derived from its principles) was the sole method of governance. There has been much debate among historians regarding the truth of this statement; some claim that the Ottomans considered any form of law other than shari’a unnecessary and insignificant, while others argue that several legal theories coexisted and reinforced each other.[1] Administering the whole Empire through Hanafi jurisprudence alone was not feasible, even though government rhetoric maintained that it was. The presence of both secular and independent courts meant that people were not always tried under Islamic law. More importantly, while shari’a was considered authoritative and supposedly could not be superseded, in many cases it proved impractical to adhere to it. Due to the theoretical nature of certain sections of Hanafi legislation, such as criminal and land laws, it was necessary for rulers to supplement shari’a with kanun. In addition, sultanic and Islamic law legitimised each other and were relatively codependent. Shari’a was prevalent during this time period, but it can be seen that different legal structures intertwined to govern the state and administer justice efficiently.
It must be acknowledged that while shari’a was not the Empire’s exclusive legal force, it did dominate this sphere, especially after Süleyman I’s ascendance to the throne. Many primary accounts, such as that of Theodore Spandounes, paint a picture of a state whose courts were entirely controlled by kadis and muftis. While Spandounes’s description of Ottoman life was written in part to instigate a Christian attack on the Turks, it provides valuable information about law in the early sixteenth century. The author maintains that kadis were vested with “supreme judicial authority” and had complete control over legal matters.[2] The author also illuminates the extent of the şeyhülislam’s influence; he is referred to as “the supreme expounder of shari’a, to whom the sultan pays great deference.”[3] Technically, a mufti’s fatwa was not binding, but by the sixteenth century, the şeyhülislam was the most powerful legal figure in the Empire and his opinions were often considered law by rulers and kadis alike. Largely due to Ebussuud, over time the role took on a political facet and these muftis grew closer to the secular authorities, a development exemplified by Süleyman’s desire to obtain a fatwa sanctioning war against the Safavids.[4] The religious class clearly possessed authority in the Empire, and influenced many legal matters, both secular and religious.
The case of Molla Kabiz further illustrates the importance of shari’a and the ulema in the sixteenth century Ottoman Empire. Kabiz was a member of the Istanbul religious class who was tried in court because he “entered the path of free thought and heresy.”[5] Celelzade Mustafa recorded the events of the trial; in his work, he is quite critical of the military judges who first tried Kabiz, claiming that they were of bad character and did not have the ability to refute the heretic’s claims due to lack of understanding of Islamic jurisprudence.[6] Eventually, Süleyman insisted on the use of shari’a, and a kadi and mufti condemned Kabiz. This trial is a representation of how the Ottoman legal system ideally would have functioned; Islamic law takes precedence, and Hanafi judges prove more adept at administering justice than army adjudicators. The ulema’s supremacy became more pronounced in the mid-sixteenth century due to Süleyman’s endeavours to portray himself as the defender of orthodox Islam and endow his empire with a pious veneer to refute Safavid claims of Ottoman heresy. According to foreign and Ottoman sources, the state was under the complete control of Islamic law and its exponents, but both Spandounes’s chronicle and Mustafa’s description of Kabiz’s case are reflections of the unnuanced view propagated by the government and were also influenced by their own agendas. While shari’a was the prevailing type of law, legal matters were not as clearly defined as rulers and the ulema claimed. There are several caveats to this paradigm that demonstrate that Islamic law was not unaided in its regulation of the Empire.
Mustafa’s description of Kabiz’s trial shows that kadis and muftis were joined by secular judges in the process of administering justice. Provincial kadis cooperated with local sancakbeyis who, assisted by the subaşi, investigated criminals and carried out punishments after sentencing.[7] Sancakbeyis were officially sanctioned to adjudicate disputes among members of the military without interference, but technically they could not punish any other member of the populace without the kadi’s approval.[8] Court records show that in practice, while Hanafi judges determined the outcome of larger trials, military officials often oversaw the entire procedure, including judgement, for lesser offences.[9] The existence of authorities who used kanun to judge cases either in their courts with official approval or, especially in the provinces, outside such institutions without the explicit consent of the government, proves that the Empire was in part ruled by secular law.
In addition to the sancakbeyis, independent courts compromised shari’a law’s supremacy. The most widespread were Jewish institutions; several authors, such as Samual Usque and Simhah Luzatto, said that Jews living in Ottoman lands enjoyed many liberties, one of the most important being the ability to freely adjudicate cases within their community using their own type of law.[10] These authors overstate the power of the Jewish courts, as they were only semi-autonomous and not officially recognised by the state, meaning that judges were quite restricted in their actions. They were largely confined to settling internal religious affairs, such as marriage, divorce, and community-specific cases, and their decisions were disputable, unlike those of the kadis. For this reason, Jews sometimes wished to be tried by an Islamic judge, whose ruling provided more security.[11] Despite their obvious limitations and the fact that they were not autonomous, there are many records of citizens utilising these courts.[12]Jewish judges were able to determine the outcome of smaller cases, and their continued presence and influence meant that shari’a was unable to enjoy a full legal monopoly.
A reason of arguably greater importance why the Empire was not governed by shari’a law alone was because kanun answered questions that Hanafi jurisprudence failed to address. Some historians have claimed that since official state kadis administered both sultanic and Islamic law, there can be no genuine distinction drawn between the two.[13] This statement could be considered true in theory, since kanun was supposed to conform to shari’a tenets and concentrate only on subjects the latter did not discuss, but most Ottomans accepted that it was the sultan’s prerogative as protector of the re’aya to enact additional legislation deemed “necessary for the order of the state and society.”[14] This dual structure had its precedent in the original Islamic conception of the ideal ruler, who was obligated to enforce both sultanic law to ensure justice and shari’a to preserve morality.[15] While it was rejected to some extent by the ulema, this stipulation allowed fifteenth century rulers to codify a legal system separate from that of the Hanafi school. Mehmed the Conqueror faced opposition from the religious class when his laws appeared to circumvent shari’a, but since he did not want limit Ottoman jurisprudence, he continued to rely heavily on kanun and the concept of the sultan’s supreme authority to rule his territory.[16] Bayezid II expanded secular law with his creation of the specialised kanunname, which by the sixteenth century was a widespread phenomenon and allowed for the existence of legal codes tailored to each individual sancak.[17] The actions of these sultans curtailed shari’a’s influence and created laws better suited to governing the disparate citizenry of the Empire.
Kanun was employed to supplement the topics that shari’a legislation left unaddressed, such as criminal and land law. The crime punishments detailed in the Hanafi code were often rhetorical and could not be applied to real cases, so sultanic law was used.[18] Land and tax regulations were also placed under the jurisdiction of kanun, since shari’a rules proved too abstract. For example, Islamic law viewed all land as private property and lacked regional specificity, while in actuality, much Ottoman territory was not privately owned and local practices remained influential in determining guidelines in this sphere.[19] Süleyman’s support of cash vakifs is another instance of the sultan bringing “kanun mindedness to bear on shari’a” in a situation where the formulation of an efficient legal system triumphed over the policy’s incompatibility with Hanafi doctrine.[20] There were many such cases during the reign of the Ottomans where Islamic law needed to be enhanced by imperial statutes. Interestingly, the ulema used shari’a to contest specific elements of kanun by arguing that they did not conform to Hanafi precepts, but this group never challenged the legitimacy of sultanic law in its entirety.[21] This is perhaps the best illustration of the fundamental importance of maintaining kanun alongside shari’a; even religious authorities, who publicly pronounced that Islamic law should be the sole governing force of the state, privately acknowledged the necessity of having a dual structure. Shari’a could never be the only form of law, since the importance of kanun in adjudicating certain cases precluded its monopoly.
These two main types of law were also codependent in terms of legitimation. During the sixteenth century, the need to justify kanun policies through shari’a increased due to the ulema’s rise and Süleyman’s orthodoxy campaign. This is evident in Ebussuud’s efforts to “harmonise the Ottoman kanuns with the noble shari’a…”[22] The şeyhülislam rephrased many sultanic laws using language borrowed from Hanafi legislation to eliminate discrepancies between the two, at least on a superficial level, so as to gain the approval of the kadis and other religious figures without hindering functionality.[23] Ebussuud’s reforms likely did not change the fundamental nature of any kanunsand were meant only to create sultanic law for the ulema’s consumption, but his efforts illustrate that shari’a could serve as a legitimation device by providing kanun with a religious facade. Sultanic law was validated by shari’a, but it was also in large part the basis for the extensive power and reach of the latter. Rulers and administrative officials can be partially credited with aiding the standardisation and rise of the Hanafi school from the fifteenth to late sixteenth centuries, as this process was facilitated by kanun.[24] The ulema’s extensive power was also supported by sultanic law. Khalil al-Muradi admits that even though jurists had a role in the creation and growth of the religious learned hierarchy, its codification was also aided by kanun.[25] For example, the officially appointed şeyhülislam significantly expanded the legislative influence of the religious class, but much of his power was conferred upon him through an imperial edict that gave the ruler increased control over his position.[26] Kanun and the sultan, here a representative of secular power, supported the authority of this influential figure and the rest of the ulema, thereby bolstering Islamic law. Ultimately, drawing a firm line between these two legislations and subordinating kanun to shari’a misrepresents the complex reality of Ottoman governance, as these legal systems influenced one another and often relied on each other for legitimation. Kanun modified Islamic law to make it more effective when applied to the realities of Ottoman life, and it also provided the basis for Hanafi jurisprudence’s authority. Sultanic law was written in the language of shari’a to make it appear more Islamic, allowing Ottoman rulers to avoid the ulema’s criticism and support their claim to be defenders of Sunnism.
While shari’a played a significant role in the governance of the Ottoman state, it was not the only type of law employed in the administration of the vast empire. Sultans, particularly Süleyman, and members of the ulema presented Hanafi jurisprudence as the foundation of the state’s legal procedure, but this was not entirely true, especially in the provinces where law was influenced by unavoidable realities and local customs. The existence of secular and independent courts, such as those of the sancakbeyis and Jews respectively, meant that minor offences were often judged by institutions that did not utilise shari’a. More significantly, Islamic law could only control the Empire partially because the theoretical parts of its legislation had to be supplemented by kanun. Additionally, these main forms of law provided validation for each other and were therefore often inextricably intertwined. Shari’a played a large role in supporting the existence of kanun, while kanun substantiated the power of the ulema and Sunni institutions. Shari’a governed the Empire to a great extent, but it was bolstered by other types of law that were essential to successfully control the polity, and together they formed the essential fabric of the Ottoman legal system.
Bibliography
Primary Sources
Mustafa, Celalzade, ‘The Trial of a Heretic’, in Hakan T. Karateke and Helga Anetshofer (eds), The Ottoman World: A Cultural History Reader, 1450-1700 (Oakland, 2021), pp. 60-65.
Spandounes, Theodore, On the Origin of the Ottoman Emperors, trans. and ed. Donald M. Nicol (Cambridge, 1997).
‘Women at Courts of Law: Court Records, Sixteenth and Seventeenth Centuries’, in Hakan T. Karateke and Helga Anetshofer (eds), The Ottoman World: A Cultural History Reader, 1450-1700 (Oakland, 2021), pp. 95-102.
Secondary Sources
Burak, Guy, The Second Formation of Islamic Law: The Hanafi School in the Early Modern Ottoman Empire (New York, 2015).
Hacker, Joseph, ‘Jewish Autonomy in the Ottoman Empire: Its Scope and Limits’, in Avigdor Levy (ed), The Jews of the Ottoman Empire (Princeton, 1994), pp. 153-202.
Imber, Colin, The Ottoman Empire, 1300-1650: The Structure of Power (New York, 2002).
Imber, Colin, ‘Government, Administration and Law’, in Suraiya N. Faroqhi and Kate Fleet (eds), The Cambridge History of Turkey Vol. 2, 1453-1603 (Cambridge, 2013), pp. 205-241.
Inalcik, Halil, ‘State, Sovereignty, and Law During the Reign of Suleyman’, in Halil Inalcik and Cemal Kafadar, Suleyman the Second and His Time (Istanbul, 2010), pp. 59-92.
Inalcik, Halil, The Ottoman Empire: The Classical Age 1300-1600 (London, 1973).
Khoury, Dina Rizk, ‘Administrative Practice Between Religious Law and State Law on the Eastern Frontiers of the Ottoman Empire’, Journal of Early Modern History, 5:4 (2001), pp. 305-330.
Kurz, Marlene, ‘Gracious Sultan, Grateful Subjects: Spreading Ottoman Imperial ‘Ideology’ throughout the Empire’, Studia Islamica, 107:1 (2012), pp. 96-121.
Repp, R.C., The Mufti of Istanbul: A Study in the Development of the Ottoman Learned Hierarchy (London, 1986).
Veinstein, Gilles, ‘Religious Institutions, Policies and Lives’, in Suraiya N. Faroqhi and Kate Fleet (eds), The Cambridge History of Turkey Vol. 2, 1453-1603 (Cambridge, 2013), pp. 320-355.
Zilfi, Madeline, ‘Sultan Suleyman and the Ottoman Religious Establishment’, in Halil Inalcik and Cemal Kafadar, Suleyman the Second and His Time (Istanbul, 2010), pp. 109-120.
[1] Guy Burak, The Second Formation of Islamic Law: The Hanafi School in the Early Modern Ottoman Empire (New York, 2015), p. 63.
[2] Theodore Spandounes, On the Origin of the Ottoman Emperors, trans. and ed. Donald M. Nicol (Cambridge, 1997), pp. 115, 135-136.
[3] Ibid, p. 118.
[4] R.C. Repp, The Mufti of Istanbul: A Study in the Development of the Ottoman Learned Hierarchy (London, 1986), pp. 295, 279.
[5] Celalzade Mustafa, ‘The Trial of a Heretic’, in Hakan T. Karateke and Helga Anetshofer (eds), The Ottoman World: A Cultural History Reader, 1450-1700 (Oakland, 2021), p. 62.
[6] Ibid, pp. 62, 65.
[7] Spandounes, Origin, pp. 135-136.
[8] Gilles Veinstein, ‘Religious Institutions, Policies and Lives’, in Suraiya N. Faroqhi and Kate Fleet (eds), The Cambridge History of Turkey Vol. 2, 1453-1603 (Cambridge, 2013), p. 329.
[9] Colin Imber, ‘Government, Administration and Law’, in Suraiya N. Faroqhi and Kate Fleet (eds), The Cambridge History of Turkey Vol. 2, 1453-1603 (Cambridge, 2013), p. 233; ‘Women at Courts of Law: Court Records, Sixteenth and Seventeenth Centuries’, in Hakan T. Karateke and Helga Anetshofer (eds), The Ottoman World: A Cultural History Reader, 1450-1700 (Oakland, 2021), pp. 97-98.
[10] Joseph Hacker, ‘Jewish Autonomy in the Ottoman Empire: Its Scope and Limits’, in Avigdor Levy (ed), The Jews of the Ottoman Empire (Princeton, 1994), pp. 157-158.
[11] Ibid, pp. 183-184.
[12] Ibid.
[13] Ibid, p. 162.
[14] Marlene Kurz, ‘Gracious Sultan, Grateful Subjects: Spreading Ottoman Imperial ‘Ideology’ throughout the Empire’, Studia Islamica, 107:1 (2012), p. 102.
[15] Dina Rizk Khoury, ‘Administrative Practice Between Religious Law and State Law on the Eastern Frontiers of the Ottoman Empire’, Journal of Early Modern History, 5:4 (2001), p. 308.
[16] Veinstein, ‘Religious Institutions,’ p. 325.
[17] Colin Imber, The Ottoman Empire, 1300-1650: The Structure of Power (New York, 2002), p. 199.
[18] Ibid, p. 223.
[19] Ibid, p. 235.
[20] Madeline Zilfi, ‘Sultan Suleyman and the Ottoman Religious Establishment’, in Halil Inalcik and Cemal Kafadar, Suleyman the Second and His Time (Istanbul, 2010), pp. 116-118.
[21] Khoury, ‘Administrative Practice,’ p. 327.
[22] Repp, Mufti of Istanbul, p. 279.
[23] Imber, Structure of Power, p. 244.
[24] Burak, Second Formation, pp. 12-13.
[25] Ibid, p. 64.
[26] Ibid, p. 62.