Modes of adjudication in Ottoman Syria
Zouhair Ghazzal, Loyola University Chicago, Department of History
& Loyola Rome Center
Based on a manuscript to be submitted to Cambridge University Press: The grammars of adjudication: the economics of judicial decision making in fin-de-siècle Ottoman Beirut and Damascus
Greater Syria, known as bilad al-Sham in the indigenous literature, has been subject to four centuries of Ottoman rule from 1516 up to the dismantlement of the empire in the aftermath of the First World War. That was followed by French colonization --with the interim "Arab state" under the Hashemite King Faysal in 1918-1920-- and both Lebanon and Syria received their full independence only by 1947. The issue that I would like to address is related to Ottoman "adjudication" --or judicial decision making-- and its place within the "legal system" in general.
The Ottomans had adopted Hanafism as their official legal system. Hanafism, which is one of the four schools in Sunni Islam, is also known to be the most "flexible" and more widespread of the four in that it permits more "open" interpretations of its core doctrines. Having also transformed the 'ulama' group into a quasi-bureaucracy by assigning them specific tasks and revenues, that group became de facto responsible within all the major cities for the teaching and propagation of Hanafi doctrines. Judges, whose selection was endorsed through sultanic firmans, were generally, though by no means exclusively, recruited from that same 'ulama' class. The process of teaching and skill-learning tended therefore to be locked within a small and élitist group, which also controlled the transmission of knowledge --and more generally, the activity of writing-- in society. In short, an aspect of what we might broadly define as the "Ottoman legal system" --even though such an appellation remains at best imprecise-- was controlled by the local urban 'ulama' class, whose wealth was mostly derived from land grants from the sultan, and the scholars and judges that were recruited from that group, all of which had full control of the religious sharî'a courts. However, and in spite of the quasi-bureaucratization of the 'ulama' class, the religious courts were, I think, autonomous on their own in that they reflected an internal process of law-making and adjudication, on the one hand, and an "adaptation" to local customary practices, on the other. Such an "adaptation" was indeed permitted and willy-nilly approved by the pre-Ottoman Hanafi scholars, and then picked up and reformulated by the late ones (e.g. Ibn Nujaym and Ibn 'Abidin). The point here, and contrary to the views propagated in recent scholarship, the domain of the religious courts could not be conceived as representing a "discourse of the state" or anything of the sort. But they were not antagonistic to the state either since they had to conform to the general directives from the imperial center.
Which brings us to the main contribution of the Ottomans in terms of law-making --or the second aspect of that "legal system"-- namely, all that aspect of the law commonly referred to as the qanun. In effect, and having been aware of the limitations inherent in Hanafism, the Ottomans have drafted over the centuries all kinds of regional directives --also referred to as "laws" or "orders"-- known as the qanunname. Thus, for example, there were regional qanunname specifically drafted for the Syrian provinces, and many of them came rather early, right after the 1516 invasion. In fact, it is generally perceived that the drafting of those "regulations" has degraded from one century to another, even though the religious courts registers did keep copies of various regulations and laws emanating from the imperial center up to the nineteenth century.
The essential point here is to be able to discern what place did those qanunname --in all their variations-- occupy vis-à-vis the traditional religious courts. More specifically, what kind of relation did those "codes" maintain in regard to Hanafi doctrine? Even though the research on the qanunname has not shown much progress, which makes it difficult at this stage to discern their modus operandi, we can nevertheless safely assume that their impact on the religious courts was indeed minimal. We need not go at length as to the reasons for that separation between various judicial authorities, but suffice it to say for our purposes here that the religious courts generally addressed different issues than the directives commonly found in the qanunname, and that the latter had their jurisdiction limited to the regional councils (diwans and majalis).
There were thus various judicial authorities, and hence different sources of decision making and adjudication. Moreover, their doctrines and practices were not necessarily in congruence with one another. Hanafi doctrine, for example, hardly addressed taxation issues that were specific to the Ottomans; it did not contribute much either in eliciting the rent system known as the iltizâm, all of which, however, were at the core of the regulations emanating from the imperial center. Thus, judges were not the only ones to adjudicate since their jurisdiction did not go beyond the religious courts. In effect, the regional councils of the reform period (Tanzimat), all of which controlled by notables (a'yan), were de facto tribunals that handled matters which by and large were outside the traditional activities of the courts: taxation, state-owned lands (miri), problems between the peasantry and their tax-farmers, etc.
What we therefore very imprecisely referred to earlier as "the Ottoman legal system" was in fact a compendium of several languages, or what we might also refer to as "grammars," in the specific sense of a set of normative rules articulated through the medium of language: (1) Hanafi doctrine which was based on an internal system of adjudication among opinions whose origins go back to the so-called founders of the school, if not earlier; (2) the religious sharî'a courts whose language of adjudication was in principle articulated around notions in Hanafi practice and doctrine; (3) sultanic legislation, which was not uniform in character, and whose texts emanated from the bureaucratic imperial center; finally, last but not least, (4) the regional councils whose modus operandi and grammars created a very much different system of adjudication from the one of the sharî'a courts.
All those "modes of adjudication" and their respective "grammars" need to be studied independently from one another first, and then brought together while keeping in mind that they neither have to form a coherent "legal system" nor be congruent with one another for that matter. They simply reflect, in some ways, the modus operandi of societies that heavily rely on kin networks over which the state had no control as such.
What we would therefore like to do is precisely a description of Ottoman societies based on their own languages --or their grammars-- which are not necessarily limited to their linguistic or discursive components, or more generally to the phonetic components of a language. In other words, language is to be taken very generally as a system of signs that could encompass the phonetic (discursive) or non-phonetic (non-discursive). The latter category, even though outside the scope of adjudication as such, and hence will not be subject to much consideration, is particularly important. In effect, it could include such things as architecture, gestures, dreams, food and dress codes. For our purposes, however, we will be exclusively dealing with languages and grammars restricted to texts, and more specifically to texts that could be qualified as "legal." More specifically, those will include: (a) manuals of jurisprudence (fiqh) and epistles (rasa'il); (b) responsa (fatwas) drafted by jurisconsults (muftis) for purposes of helping judges to finalize a ruling in particular in "hard" cases; (c) records of the religious sharî'a courts; (d) minutes of the regional councils (majâlis) of the reforms; and, finally, (e) sultanic legislation emanating from the imperial bureaucratic center, copies of which --sometimes in a bilingual Turkish-Arabic-- were kept either in the court registers or the minutes of the councils.
What all such texts have in common is that they formed all combined --even though the coordination among all those jurisdictions remains unclear-- the practices of what might be termed "the Ottoman legal system." From a methodological point of view, it is the study of such texts as totalities that will enable us to describe the system. Even though such sources are now routinely used in Ottoman historiography to depict the socio-economic foundations of societies, they have regrettably not been subjected to much scrutiny when it comes to understand their respective discursive layers. By this I mean that texts mean much more than the "facts" they're supposed to carry, and have thus a "mode of reasoning" and truth enunciation that need to be described. In other words, they contain an inner logic that enables them to produce meaningful statements and organize the world around them.
A language therefore assumes a grammar that holds the normative values relative to particular society. Such rules (or norms, or values) are never explicitly stated as such, and thus remain for the most part unconscious and accepted as part of the customary practices in daily life. The discovery of those languages and grammars therefore remains an essential task for the social scientist who needs to deploy all his/her skills to discover such hidden rules by making them manifest and visible. We will be specifically concentrating on the grammars of adjudication, which is not to be limited to the rulings of judges (as reported in the scribes' "summaries"), but also to the sorting out of opinions among jurists and scholars, and to the framing of "orders" that emanated from the imperial center. Our démarche therefore assumes that the depiction such authoritative languages would enable us to describe the practices of adjudication.
copyright © 2002, zouhair ghazzal