Middle East 1750 to 2015 Continuities

curated by Zoe Griffith and Hadi Hosainy Download the series
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Series Overview

Law is a powerful lens for the study of the Ottoman Empire and the Islamic world. Bringing together diverse sources and new perspectives for legal history, this series explores law in and around the Ottoman Empire as a complex and capacious system underpinning the exercise of power inherent in all human relationships. Our presenters study the law to gain entry into the Ottoman household, exploring the relationships between husbands and wives, masters and slaves. Others use the legal system to understand the logic of the modernizing state, and the competing logics of its citizens, in shaping new forms of governance. Many of these podcasts explore the limits of Ottoman law, both externally at the borders of empire, and internally, at the margins of governable society. The underlying theme of this series is negotiation and compromise: between lawmakers and law-users, between theory and practice, between social body and individual experience. Individually and especially taken together, these podcasts take us far beyond the normative strictures of Shari'a to understand the role of law in diverse societies in the Ottoman Empire and beyond.
Currently our series contains 15 podcast episodes featuring 25 contributors available for play or download through our podcast feeds. Let us know what you'd like to hear next!

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Introduction
by Zoe Griffith and Hadi Hosainy

We can think of the law as a sort of vital organ regulating the core of the social body and driving human relationships––between husbands and wives, parents and children, laborers and employers; between the individual and the state, between the state and communities under its rule. Like the reach of law itself, the rise of legal history in recent decades has left few corners of Ottoman history and other Islamic societies untouched. As we examine sources of law and authority in the Ottoman Empire, and the diverse ways that law is practiced on the ground, we are asking fundamental questions about power and resistance across space and time. Social history, urban history, gender and family history, political economy and the history of the state and governance can all benefit from asking certain questions: What were the ideals of justice in the Ottoman lands? Whose interests did such ideals serve? What legal instruments and strategies were available to whom? How did the law reinforce or upend dynamics of power based in gender, property, class, and sect? What drives change in these institutions and beliefs, and how did these changes reconfigure life for Ottoman subjects and citizens? (click for more)

As European Orientalist scholars got to "know" the societies of the Ottoman Empire and its successor states in the nineteenth and twentieth centuries, they gleaned most of their understanding of law and governance from texts and treatises. Reading the jurisprudence (fiqh) of medieval legal scholars, they concluded that Islamic law, the Shari'a, was an ossified, unwieldy body of doctrine unequipped to address the needs of "modern" society. Max Weber popularized the notion of kadijustiz to describe a system of law based, as he saw it, on individualistic, arbitrary rulings of the Islamic court judge, the kadi, rather than the formalistic, precedence-based legal systems that he believed must underpin modern capitalism and rational bureaucratic statecraft. This perception went hand in hand with European visions of "oriental despotism." Europeans saw the unchecked, personal authority of the Ottoman Sultan as the law of the land, and decried the absence of rule of law to protect the lives and property of Ottoman subjects (and, increasingly, their European business partners).

But the history of law and governance in the Ottoman Empire has exploded in the past two decades for a couple of reasons. In the 1970s and '80s, Critical Legal Studies in the US and UK began to question liberal understandings of natural law as the universal expression of the needs and tendencies of human society. These scholars insisted on critical attention to the power structures underpinning legal theories and practice. Ottoman historians such as Huri İslamoğlu (2004), Boğaç Ergene (2003), Hülya Canbakal (2006) and Martha Mundy (2007) have become increasingly interested in analyzing legal systems as systems of social power and political conflict.

Meanwhile, legal history seems uniquely positioned to bring some of the methodologies and critiques of the cultural turn to bear on topics covered by earlier, positivistic scholarship in Ottoman history. By seeking to understand court practice, jurisprudence, and the emergence of new legislation and new legal forums, scholars have put the spotlight directly onto the sources for writing Ottoman history. The rich archival legacy of the Ottoman Empire in Turkey and many of the empire's successor states in the Arab lands and the Balkans consists mainly of records produced by arms of the imperial state––land surveys, tax registers, population censuses—and the voluminous records of urban and provincial Shari'a courts spread across the empire. These records are not neutral repositories of historical "fact" but rather highly constructed texts forged out of the social and political dynamics of institutions subject to their own histories of continuity and change.

The Ottoman Empire is only one of many polities relevant to the history of Islamic law. Yet as the only Muslim-ruled empire to have survived from the early modern period into the nineteenth and twentieth centuries and the only one whose archival records have survived mostly intact, it provides a unique opportunity to study theory and practice across time and space in an Islamicate society. The voluminous production of Islamic jurisprudence including fiqh manuals and fatwa compilations in the Ottoman Empire demonstrated the dynamic flexibility of theory, as we see in the permissibility of cash waqfs (Hallaq (1984)). Shari'a court records from Egypt, Syria, Anatolia, Istanbul, the Balkans and other former Ottoman cities and provinces allow us to add the study of legal practice to the mix: for example, the court records show that pious endowments (waqf) were an important means by which families passed wealth to female family members, allowing for more flexibility than the strict Shari'a laws of inheritance.

The podcasts in this series explore law in the Ottoman Empire in terms of its commonalities with other contemporary systems, in terms of what made it particular, and as an arena for the intense negotiations of power and reciprocity that drive historical change on the ground. The following themes are porous and overlap with each other and with other OHP podcast series, the clearest testament to the importance of law in different facets of social and political life.

1) Sovereignty: The power to make and enforce the law is one of the hallmarks of state power, and one of the most dynamic windows into changing relations between ruler and ruled. Several of these podcasts explore the limits of law in the Ottoman lands as well as efforts to expand those limits further. The question of sovereignty brings the Ottomans into contact with their neighbors––how did the empire attempt to govern the seas, and how were they able to apply Ottoman laws to outsiders on Ottoman soil? By the nineteenth century, the state's ability to claim authority within clear boundaries became a more important sign of imperial sovereignty. As the borders of empire became more fixed, the Ottoman and Egyptian governments intensified their efforts to control populations through new standards of public order, registration, information-gathering, and uniformity.

2) The Spaces of Law (Forum Shopping): For the study of legal practice, one of the most exciting characteristics of the Ottoman system is its capacity to accommodate the needs of a vast, multi-ethnic, multi-confessional population. How did ordinary Ottoman subjects and citizens game the system and hedge their bets? Given the opportunity, people took advantage of different sources of law and different interpretations of law that were permissible by the standards of the empire to gain more favorable outcomes. From Jews turning to the Shari'a courts, to women relying upon one school of Islamic jurisprudence (madhhab) rather than another, to the use of informal dispute resolution, the personal interests and practical concerns of ordinary people created a sort of "market" for legal "consumption" within the Ottoman lands. These pragmatic decisions by legal consumers allow us to contemplate people's understandings of law and governance, justice and efficacy.

3) Modernization: Until recently, scholars saw the legal and administrative reforms of the 19th century Tanzimat as derivative and unsuccessful efforts to remodel the empire along the lines of modernizing European states. For example, in the mid-19th century, the Ottoman scholar and bureaucrat Ahmed Cevdet Paşa led a commission to codify the Shari'a into a civil code, the Mecelle. Based on Hanafi jurisprudence and dealing primarily with issues of property and contract, the Mecelle was understood as an effort to "Westernize" the Shari'a. However, new scholarship has highlighted how such codification efforts should be understood as part of regional and global efforts to respond to growing demands of modern capitalism predicated on changing relationships between individuals, states, and private property. As such, the codification of civil law is hardly a "European" phenomenon, and there is nothing "derivative" about Ottoman legal reforms in their own right. The creation of new legal forums in the mid- to late-nineteenth century, including commercial courts, mixed courts (for cases involving non-Ottoman subjects), and civil (nizamiye) courts, created a new purview for the Shari'a. This in turn created new understandings of religion, morality, law, and justice.

4) Inside/Outside the Law: As pioneered by historians following in the footsteps of Michel Foucault's Discipline and Punish (1975), Ottoman historians have been able to mine legal records to access the history of more marginalized groups––peasants and laborers, women, slaves, pastoralists, children––whose experiences are brought to light through their brush with the legal apparatus of the imperial state. The records of the Shari'a court largely reflect the activities and interests of the wealthier, urban classes, since the notarization of property transactions was a primary function of the court. But in recording the business of their households and urban and rural ventures, the elite and propertied middle class bring the stories of those typically left out of the historical record into view. As the state expanded its reach into the lives and livelihoods of its citizens in the late-nineteenth century, it left more and more variegated records. The encroachment of the legal-bureaucratic apparatus into formerly marginalized areas and populations was rarely an easy process; luckily for the historian, the greater the conflict this process engendered, the clearer the historical paper trail.

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Sections
Law and Empire
The Politics of Jurisdiction

Within the historiography, major shifts and developments in schools of thought and legal interpretation have dominated the narrative of how Islamic law has spread and transformed across time. However, as our guest Guy Burak argues in his new monograph, The Second Formation of Islamic Law, structural changes in the relationship between state, society, and law are also an important part of this story. In this episode, Dr. Burak explains how law transformed under post-Mongol Islamicate empires such as the Ottomans through changes in the ways these states claimed legal authority.

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