Law and Legality in the Ottoman Empire and Republic of Turkey

Kent F. Schull, Robert Zens, M. Safa Saracoglu

• Publisher: Indiana University Press
• Year: 2016
• Print ISBN: 9780253020925
• eBook ISBN: 9780253021007
• Topic: History
• Subtopic: Middle Eastern History
• Index: History

The editors of this volume have gathered leading scholars on the Ottoman Empire and the Republic of Turkey to chronologically examine the sweep and variety of sociolegal projects being carried in the region. These efforts intersect issues of property, gender, legal literacy, the demarcation of village boundaries, the codification of Islamic law, economic liberalism, crime and punishment, and refugee rights across the empire and the Aegean region of the Turkish Republic.

1Reaching the Flocks

Literacy and the Mass Reception of Ottoman Law in the Sixteenth-Century Arab World¹

Timothy J. Fitzgerald

C’est une étrange chose que l’écriture . . . Le seul phénomène qui l’ait fidèlement accompagnée est la formation des cités et des empires, c’est-à-dire l’intégration dans un système politique d’un nombre considérable d’individus et leur hiérarchisation en castes et en classes . . . Si mon hypothèse est exacte, il faut admettre que la fonction primaire de la communication écrite est de faciliter l’asservissement.

Claude Lévi-Strauss²

OVER THE PAST few decades, the study of Ottoman law has expanded in ways that defy brief summary. At root, many Ottoman legal historians have drawn inspiration from the concerns and questions prompted by the turn toward social history in the humanities at large. This, combined with more recent imperial and world-history turns, if dizzying, has meant relative boom times for interest in the Ottoman Empire and its legal culture(s) or system(s). One welcome result of all this attention has been the incremental counter-balancing of top-down, center-out type approaches to legal history with ones that highlight the determinative role played by ideas, institutions, and peoples beyond—sometimes far beyond—the imperial capital at Istanbul. Moreover, the interdisciplinary field of inquiry captured by the rubric “legal pluralism” has at last made serious inroads into Ottoman (and Islamic) legal studies, complicating our understanding of the legal scene in beneficial ways and rendering the Ottoman Empire more intelligible to those analyzing law and politics elsewhere and undertaking comparative study.³

Despite having attained such critical mass, gaps and limits—some maintained by the inertia of venerated traditions in Ottoman studies, some shaped by the nature of available source material—leave plenty of work to do in grasping Ottoman law in the fullest sense. One key area of under-development involves accessing the meanings of law, legality, and legitimacy for most subjects of the empire: the literate, semi-literate, or illiterate masses, those typically consolidated, in the view of governing elites, according to their tax-paying identity as the empire’s “flocks” (reaya). In fairness, the clarion call of social history to bring most people into view has been taken up by research using the voluminous Ottoman law court records, cadastral surveys, and documents produced by the varied petitioning processes employed across the empire. Such research has yielded visibility and agency to a great many living in and around Ottoman domains who might otherwise have never been known to posterity. Moreover, research has shown that while these many lowly persons were shaped by the institutions they engaged—their voices altered by those who represented them and by those who recorded their words and deeds—we also now know that their legal preferences, and the traffic they generated, conditioned law and politics in basic ways. Most would now accept that the law, in any Ottoman (or even Islamic) context, was not merely the byproduct of juristic determination or ruling fiat but an evolving constellation of structures and discourses that resulted from the complex interplay of many actors, state and non-state, elite and non-elite.

Still, one wonders: can more be done to understand what Ottoman law might have meant to the vast majority of people living with its daily consequences? How was law, or in its broader formulation “justice,” consumed? And, in what ways might Ottoman lawmakers have recognized and responded to this mass audience? This paper proposes a few lines of approach to these questions by drawing upon a large body of research—under-exploited by Ottomanists—in literacy. After closely surveying the existing scholarship, the study will turn to the sixteenth-century conquest of the Mamluk Sultanate and the incorporation of much of the Arab world into the Ottoman Empire. The Mamluk-Ottoman transition was a moment of transformative expansion in terms of the interconnection among law, legitimacy, and textuality. It also represents an ideal setting in which to test the hermeneutic value of literacy as a lens on the period’s central developments. The study will finish by briefly sampling how small pieces of historical evidence might carry unnoticed literacy implications. In case study fashion, special attention is paid to the experience of Aleppo and its inhabitants.

To be sure, there are other ways to examine mass sentiment and how it was perceived by those in authority without simply relying on the potentially idiosyncratic characterizations of elite commentators. Public architecture, visual art, and material culture are fruitful avenues, rarely taken with questions of law and order in mind. Communal action (support or resistance) can be studied from a variety of perspectives in a way that yields genuine insight into the identities of unnamed actors.⁴ But “new literacy studies” hold special promise.⁵ Questions of literacy nurture fresh thinking about the very sources with which historians, especially legal historians, presume a fair degree of familiarity. And in so doing, they present tantalizing opportunities to synthesize typically disparate areas of research.

Literacy has not been wholly neglected in Ottoman historiography. In the 1990s, two special issues of Revue des mondes musulmans et de la Méditerranée collected an impressive spread of research on orality, writing, reading, and book and manuscript cultures in the Ottoman Empire.⁶ More recently, Benjamin Fortna has studied reading in the late empire as it related to changes in technology, education, and commerce, and to discourses of modernization and national identity formation.⁷ Nelly Hanna has undertaken pioneering work on literacy in pre-nineteenth-century Egypt, and Cairo in particular. Hanna has argued for literacy’s variety, ubiquity, and social embeddedness. “Artisan literacy” developed in connection with elementary schooling, trade, Sufism, coffeehouses, and what she calls the “legalistic culture” cultivated by Ottoman law and bureaucracy.⁸ Dana Sajdi’s fascinating examination of “nouveau literacy” proceeds in a similar vein. Sajdi submits that a critical mass of commoners in the early modern Levant, aspiring to greater social mobility, approximated the ‘ulamā’, appropriated the Arabic chronicle, and produced a distinctive kind of written text, something at once richly traditional and “entirely new.”⁹ One should also note Brinkley Messick’s work that—though not primarily concerned with bottom-up literacy—still represents some of the most rigorous and theoretically-informed research available on “textual domination,” law, and authority in a Muslim-majority society, past or present.¹⁰

The work of Leslie Peirce and, more recently, Reem Meshal comes closest to the core concerns of this study (though neither gives much attention to literacy per se). Both authors have grappled with the causes and consequences of the classical Ottoman state’s intensifying use of written records and related rituals of inscription as instruments of power. Peirce and Meshal have also explored how Ottoman subjects sought to manipulate writing for their own ends. In sixteenth-century Aintab, Peirce has observed that “inscription [such as that resulting from a cadastral survey] was an act of possession” that “archived” and “immobilized” subject populations in ways that often engendered resistance, renegotiation, and even textual “reconquest” (another cadastral survey).¹¹ In such an environment, individuals—even the technically illiterate—wielded to the extent possible written records to buttress an immense variety of legal claims; they further came to understand the prevailing “hierarchy of documents,” where some records had more authority and influence than others. While the importance of orality did not disappear in law and politics, those with direct control over the written word accrued increasing social power.¹² In examining Cairo, Meshal has similarly emphasized a profound shift in Ottoman attitudes and compulsory practices that resulted in the “mass production” of legal documents and their innovative association with the courthouse or “public archive”—perhaps the first in Islamic history, she submits.¹³ For Meshal, these transformations resonated with others: the early modern expansion of the state, the redefinition of the public and private spheres, and the drift from subject to “proto-citizen.”¹⁴

But, given the extent and diversity of Ottoman history, one is struck by how partial such coverage is. Ottoman literacy studies, thin to begin with, largely remain tethered to interest in how the Middle East might or might not have gained access to modernity through the (belated) appearance of print capitalism, reforms in mass education, and the emergence of a Western-style reading public.¹⁵ Beyond this, the focus has been on new or newly-discovered forms of cultural production: unexpected authors and modes of self-expression. Accordingly, attention has gravitated to the “history of the book” in a limited sense.¹⁶ Such work, while vital, is often bedeviled by questions of representativeness. Whose literacy, by any understanding, is at issue? Most peoples’? A certain class’s? An outlying vanguard’s? Or rearguard’s? A few remarkable individuals’? What, if any, larger social, cultural, and political changes are afoot? And how can these be measured and soundly characterized? This is why it is important to simultaneously explore many kinds of literacy, involve many kinds of evidence, and to think more intently about both authorship and audience, about both the production and consumption of the written word—recalling that nearly always many more could read than could write.¹⁷ Lastly, following Peirce and Meshal, a role for the state and imperial politics must be brought into the picture more fully, an endeavor that not only adds a critical dimension to literacy studies but also promises to give the approach wider resonance. A first step is to direct our attention deeper into the Ottoman, even pre-Ottoman, past. A second step is to reevaluate the evidence for its literacy implications. Nelly Hanna has done the most work along these lines, but her agenda could be stretched further in time and space and connected to different topics like political legitimacy and state formation. This paper undertakes such a preliminary investigation by re-examining the Ottoman conquest of Mamluk lands.

Texts, Text Producers, and Legal Literacy: The Mamluk Background

Though a robust field in its own right, the history of the Mamluk Sultanate has yet to be given its due by Ottoman historians. While the conservative nature of Ottoman “methods of conquest” is a well-established dogma in the field, suggesting a profound need to examine what came before, scholars have generally followed the Ottomans’ own dismissive rhetoric about a long-declining, corrupt, and generally ineffective Mamluk state based in Cairo. Disinterest has extended to Mamluk society and culture. Yet scholars of Ottoman-Arab history and of Ottoman law stand to learn much from the Mamluks, and the vigorous field of Mamluk studies.¹⁸

By all indications, the late Mamluk world that the Ottomans would inherit was one soaked in written texts—be they religious, literary, epistolary, governmental, commercial, and/or legal. This reality does not surprise medievalists who have debated how far back in time to push a shift in mentalities, technologies, and politics that favor...

Table of contents

• Cover
• Half title
• Title
• Copyright
• Contents
• Introduction
• 1 Reaching the Flocks: Literacy and the Mass Reception of Ottoman Law in the Sixteenth-Century Arab World
• 2 Ottoman Legal Practice and Non-Judicial Actors in Seventeenth-Century Istanbul
• 3 Defining Village Boundaries at the Time of the Introduction of the Malikane System: The Struggle of the Ottoman State for Reaffirming Ownership of the Land
• 4 Economic Interventionism, Islamic Law and Provincial Government in the Ottoman Empire
• 5 Reorganization of the Sharia Courts of Egypt: How Legal Modernization Set Back Women’s Rights in the Nineteenth Century
• 6 Regulating Land Rights in Late Nineteenth-Century Salt: The Limits of Legal Pluralism in Ottoman Property Law
• 7 The Mecelle, Sharia, and the Ottoman State: Fashioning and Refashioning of Islamic Law in the Nineteenth and Twentieth Centuries
• 8 Criminal Codes, Crime, and the Transformation of Punishment in the Late Ottoman Empire
• 9 Refugees, Locals and “The” State: Property Compensation in the Province of Izmir Following the Greco-Turkish Population Exchange of 1923
• Index