Shariah Courts and Shariah Records

Bunu Paylaş

 

APPLICATION OF ISLAMIC LEGISLATION IN THE OTTOMAN STATE: SHARIAH COURTS AND SHARIAH RECORDS
Prof. Dr. Ahmed Akgündüz
Rector, Rotterdam Islamic University

Abstract

One of the crucial questions that attracts attention among scholars and experts in the application of the Islamic laws and legislation concerns the Islamic law practice in the Ottoman State. While some scholars claim that in the past the Ottoman State operated mainly with a system of customary laws, the question to what extent the Ottoman State practiced Islamic Law and Islamic legislation remains of paramount importance. In the following paper, the whole issue of the Shariah courts and the Shariah records within the broader framework of the application of the Islamic Legislation in the Ottoman State is addressed. The aim is to describe, through the use of scientific methods including archive documents, the application of the Islamic legislation (i.e., The Shariah Courts and the Shariah Records) in the Ottoman State (1299-1923).

The present paper falls into a number of sections. First, taking account of the historical developments after Tanzimat as well as a number of developments in terms of the legal guidelines for the preservation of the Shar’iyyah Records, a detailed view is given of the shariah courts and the qadis as well as of the judiciary body, including Shaikhuislam, Qadhasqars, and qadis. The second section provide a description of how the Ottoman State applied the Shariah laws according to the Shar’iyyah records. A general evaluation of the issue at hand is made, based on the scrutiny of over thousands of record documents from the Ottoman Archives. Under this heading mention is made of the different branches of law put forward by the Shar’i Sharif in the judgment of the Shjar’iyya Records. Under the rubric of the next section, a review is provided of the Shar’iyya records, types of documents they consist of along with their legal merit. Light is shed on such terms as Sijil, Mahdar and Saqq, and on the general features of Shar’iyya records, with a historical perspective into the most important developments involved after the Tanzimat reforms. Further, the types of legal documents are dealt with, including documents written by Qadis (i.e., hujjah, deeds) as well as their general features. Light is also shed on the judicial decrees as well as their definition, arrangements, qualities, types and models. Linked to this is a discussion of a number of interesting documents in the Shariah Courts and the Shariah Records, including ma’ruzs, murasalah, as well as a number of documents emanating from other offices and registered in records (i.e., decrees and edicts from the Sultan, orders from the Grand Vizier, Beğlerbeğis, Qadhasqars, tazqarahs, tamassuks, and other records). Finally, a conclusion is presented of the key discussion around the whole enterprise of the Shariah courts and Shariah records within the broader framework of the application of Islamic Legislation in the Ottoman State.

 

I) SHARIAH COURTS AND QADIS

When Othman I (1281-1326), the first Sultan of the Ottoman State came to power, the first office he appointed was a qadi (judge). As no institution specialized for training qadis existed, the first Ottoman qadis were brought from Anatolia, Persia, Syria and Egypt. Sultan Murad I (1359-1389) first appointed Molla Fahruddin of Ajem to the Office of Fatwahs (Judgments) with a salary of 130 akchas. Later, a qadi was appointed to each conquered administrative center (see p4), and, thus, the judicial organization or the sharia court system came into being. No established office was found where the judgment was carried out under the title of the Shariah Council. Qadis had an office in which they were able to execute the judiciary matters, and the parties involved would, at any time, be able to refer to them. That office might be in the residence of the qadi, a room of a mosque, or a madrasah (a school). They would perform their judiciary work every day, except during the days of religious festivals and Fridays[1]. The Judiciary Body in the Ottoman state could be summarized as follows:

1.1 The Shaikhulislams

Although there was some fluctuations during the early and late eras of the Ottoman State, the shaikhulislam was the head and the competent authority of the Ulama Class and the organization of jurisdiction in the Ottoman State. In legal affairs, the qadis issued judgments according to the Hanafi the School. In their decision, they acted in conformity with the views of the Hanafi jurists, if they shared the same opinions with them. With respect to disputed affairs, they acted according to the accurate views, after having carried out diligent scrutiny of the affairs at stake. Qadis needed muftis. There were two categories of muftis in the Ottoman State. First is the central mufti, the head of the Ulama Class, viz. shaikhuliislams. The second category consisted of the muftis who were known as provincial muftis[2].

Shaikhulislams held no specific position until 1241 A.H. / 1826 C.E. When Mahmud II (1808-1839) abolished the Janissary Corps, the Office of Agha of the Janissaries was transformed into the Office of the shaikhulislam, which became known as Bab al-Wala al-Fatwahanah al-Ali. Later, there was the establishment of the Fatwahanah al-Ali, a department of the Office of the shaikhulislam, headed by a supervisor with the title of Fatwa Emini. Over time, this department became an academic center to which not only the European countries but also the Islamic world referred for consultation over diverse legal affairs[3].

1.2 The Qadhasqars

In the Ottoman State, the actual head of the judiciary board and the second head of the hierarchy of the men of knowledge was the qadhasqar. This office known as Qadhiasqarlik, became the equivalent of the office the Qadil Qudatliq, existing all over the Muslim Turkish states. It attended the Imperial Council (Diwan al-Humayun) in the name of the judicial power; and looked especially after the Islamic and legal affairs of the military class. Also, it decided the appointments of the qadis to the principalities and sanjaqs [4].

The authorities and the tasks of qadhasqars can be summarized as follows. Until 1574, the qadhasqar selected and appointed teachers (mudarrises) and qadis (judges), which was subject to the approval of the Grand Vizier. However, the judiciary powers of the qadhasqar were limited in favor of the qhaikhulislam. The qadhasqar was vested with the authority to appoint the qadis according to regions, including the military qassams (officers who fix inheritance shares), teachers of lower status, with daily fees of 20 to 40 akchas (mudarrissun), as well as the other professionally important functionaries. They executed appointments with the qadhasqar’s decree[5].

Qadhasqars were the founding members of the Imperial Council, and they attended the Council on appointed days. At the Council, some cases were conveyed to the Qadhasqar of Rumelia to be heard. Unless vested with a special authority, the Anatolian Qadhasqar did not have the authority to hear cases. Still, the scrutiny of the legal issues at the Council was part of the responsibilities of the qadhasqars[6].

The qadhasqars also attended the Friday Councils, held at the Grand Vizier’s mansion, where the judgments were issued under the title of the Huzur Murafaası. There, they examined cases submitted to the Council in the presence of the Grand Vizier. The qadhasqars were , furthermore, authorized to hear cases in their own residences on Tuesdays and Wednesdays[7]. Further, qadhasqars were authorized to place the Sultan’s seal on judgments issued at the Imperial Council or elsewhere, and to announce them under the title of Qadhasqar’s Order[8].

The qadhasqars institution and its functions began to diminish after the Tanzimat, in the wake of the political reforms of Abdulmajid in 1839. Towards the end of the Ottoman State, the authority of qadhasqars was abrogated. While shaikhulislams were included in the Cabinet, qadhasqars were excluded from it. Although the income of qadhasqars was annulled after the Tanzimat, they were still authorized to appoint qadis. The Nizamnamah al-Tajihat al-Manasib al-Qadhah, dated 1271 A.H./ 1854 A.C. mandated that they submitted such appointments to the shaikhulislam. With an interim law-code dated 1331/1913, the institution of the qadhasqars was abolished and, with a further provisional code dated 1332/ 1914, the number of those courts was reduced to one[9].

1.3. Qadis

The persons who executed judicial tasks at the Shariah courts of the Ottoman State were called qadis. The word qadha, meaning literally “to cut” or “to divide” came to signify “a judgment or judging”. The Ottoman jurists defined a qadi as a person appointed by the highest office of the State (the Sultan or the authorized officers) in order to issue judgments over cases or disputes among the people according to the laws of the Shariah. Qadis were known as the Hakims or the Hakims’ul-Shar. Administratively, the Ottoman State was at first divided into provinces called eyalets, eyalets into liwahs, liwahs into qadhas, qadhas into nahiyahs, and finally nahiyahs into koeys (villages). Administrative centers such as nahiyahs and villages were judicial centers. In each judicial center there was a qadi. The qadis served not only as judges, but as mayors and chiefs of police as well. At times, they functioned as the administrative heads, and offices of social security[10]. With respect to the Shariyyah Records, 20.000 issues of 500.000-odd pages are now available. But, what types of tasks did qadis perform in the Ottoman State[11]? Taking account of the statements in the Shariyyah Records, the tasks and functions of qadis can be summarized as follows: To execute Shariah decrees, to examine all the disputed views against the philosophical views of the Hanafite school, applying the possible reliable solutions, to formulate Shariah judgements, to marry minors without a (own) guardian, to safe keep the property of the orphans and paupers, to appoint or dismiss guardians, to supervise the charitable foundations and their accounts, to formulate marriage contracts, and to execute testaments. While executing decrees and instructions, qadis did not interfere in political or administrative affairs of the State, which were eventually left to administrative supervisors[12].

1.4. Developments after Tanzimat

The age of the Tanzimat and the era of Mahmud II (1808-1839) along with the period that followed were times of new developments, affecting the judicial bodies. The judicial executive powers qadis used to have in the Ottoman State before Tanzimat began to be reduced after the era of Mahmud II, who subjected them to new modificantions. The office of the Qadi of Istanbul was moved to the spare chambers in the shakhulislam’s office (Bab al-Mashihat) in 1235/1837, where he began to carry out a number of judicial tasks for the first time in an official court house. With the aim to prevent qadis’ abusing their authorities, and to eliminate the existing irregularities with respect to their functions – the Imperial Penal Codes regarding Tariq al-Ilmiyyah (the hierarchy of the functionaries and professors of the canonic laws of Islam)[13] were effected in 1254/ 1838. Although qadis had been responsive to the qadhasqars, and the qadhasqars to Grand Viziers – who were the absolute deputies of the Sultan, and had been executing the Shariah decrees in their names, qadhasqars were affiliated to shaikhulislam at the beginning of the Tanzimat. Shaikulislams were nominated to the Cabinet (Majlis al-Wukalah). All the qadis, then, were affiliated to the shaikhulislam; while their administrative and local authorities were abrogated[14]. The Tanzimat Fermanı (The Imperial Edict of the Tanzimat) which dated 1255/1839 decreed that the legal arrangements to be made in every field[15], in accordance with the Shariah courts which were also re-organized.

In addition to the Shariah courts, various administrative and judicial courts were established in 1284/1867. Their functions were restricted to certain fields. With the regulations entitled the Nizamnamah al-Diwan al-Ahqam al-Adliyyah dated 1284/1867, such affairs of personal rights as crimes committed against the family, the foundations, the persons as well as the inheritance crimes and their penalties – in addition to law-cases – were removed from the authority-field of the Shariah courts. With similar regulations entitled the Nizamnamah al-Shura al-Dawlat, the Shariah courts’ administrative judicial authorities were absolutely abolished[16]. When the Nizamiyyah Courts, were established with the regulations of 1286/1870, a certain functional judiciary dualism started to take place in the Ottoman Department of Justice. Two judicial courts were charged with executing judicial tasks in the different fields[17]. The associations of transfer and execution established with the Regulations of 1287/1876 took over some authorities relevant to their fields[18] from Shariah courts. When Military Courts (Mahqamahs al-Nizamiyyah) were organized throughout the country with the Regulation dated 1288/1871, all the judicial authorities including the Shar’iyyah issues were transferred to them. The qadis who were not relatively very busy in their respective provincial districts, were tasked with the office of the chief judge at the Military Courts[19].

In 1290/1873, the Majlis al-Tadqiqah al-Shar’iyyah, a supreme Shar’iyyah Court hierarchically immediately above Shar’iyyah Courts was established. As a court of appeal, it would scrutinize those cases and issues submitted by the Fatawahanah (i.e., the Judgments Department). If the Shariah Courts’ verdicts contradicted the Shariah decrees, the case, along with the rationale involved, would be submitted to the shaikhulislam [20]. In the meantime, Fatawahanah al-Ali, hierarchically immediately below the Majlis al-Tadqiqah al-Shar’iyyah and above the Shariah Courts, was established as a supreme court in 1292/1875, vested with the authority to appeal with respect to the judgments of the Shariah courts. If not cleared out at this level, such cases would be transferred to the Majlis al-Tadqiqah (i.e., the Council of Inquiry) [21].

With the Provisional Code (The Qanun al-Muwaqqat) dated 1331/1913, which brought about significant innovations, the organization and the tasks of the Shariah Courts were rearranged. The Mulazamah, a way of serving for a sector as unpaid beginners (stuff) in official posts – and meant also serving as a qadi for a restricted duration, was entirely abolished. To promote as a qadi, one should have completed a minimum of 25 years of age. It was, then, decreed that those who had not obtained a degree from the Law Faculty (known, then, as the Maqtab al-Nuwwab in 1302/1885, the Maqtab al-Quzah in 1326/1908, and the Madrasah al-Quzah in 1327/1909) would not be able to serve as a judge[22]. With the coming of the Regulation for the Reformation of Schools (The Nizamnamah al-Islah al-Medaris), an academy of a religious order, called Dar al-Hilafah al-Aliyyah, was opened in 1332/1914 [23]. In 1335/I916, all the Shar’iyyah courts, including the office of the qadhasqar and the foundations courts, were affiliated to the Ministry of Justice and a new department was established at the Court of Appeal, called the Shar’iyyah [24].

Shar’iyyah courts, which were again affiliated to the office of shaikhulislam after the Truce with the Decree dated 1338/1919, were reorganized in terms of a more solid structure with the Regulation on the Fundaments of the Shar’iyyah Judgments of 1336/1917. Notwithstanding the same decree was applied for four more years after the establishment of the Republic of Turkey, similar Shar’iyyah courts were abolished with the Provisions of the Modification (The Ahqam al-Muaddil) related to the abolition of the Shar’iyyah Courts, and related to the Organization of the Courts (The Tashqilat al-Mahaqim)[25] in 1342/1924.

1.5 Legal Guidelines for Preserving Shar’iyyah Records

Shar’iyyah records in the Ottoman State were preserved better than in other states of the Islamic world. There are 20.000 Shar’iyyah Records books (Sicillât-i Shar’iyyah) belonging to the Istanbul Shar’iyyah Courts. Is it due to existence of some laws, official decrees, and orders about preserving and archiving Shar’iyyah records?

In the light of the archival documents, the Ottoman State arranged policies and plans reinforced with laws, decrees and local orders to preserve of the Shar’iyyah records. The first law was a legal decree enacted by the Sultan Bâyezid I (1389-1403), in which there were rules about writing and preserving legal documents and registrations by qadi as well as the fees involved. It stipulates: ‘In the time of Bâyezid I (1389-1403), it was ordered to the qadis of provinces that they should not only take fees on huccah registrations (huccet akcesi), on heritage distributions (resm-i qismet) and other kinds of registrations (sicil akcesi), but should preserve these records as well. This was enacted as a law in 796/1394.’[26]

At the period of the Sultan Mehmed II (1451-1481), the 49th article of his Public Ottoman Legal Code is about the Shar’iyyah Records and their respective fees. It states: ‘All judges (qadis) should receive 32 akca for any registration in the Shar’iyyah records and for huccah documents; and 12 akca for giving one copy from these Shar’iyyah records to the plaintiff and the defendant, and for signing any Shar’iyyah record 12 akca’. The article (49th) presupposes that all the judges have to write official documents into the Shar’iyyah Records and to give copies to the parties involved if demanded or needed. In explaining the tasks of the judges, the main Ottoman Legal Codes mention, among other official tasks, ‘to write the Shar’iyyah records and the judicial documents (ketb-i sicillât ve sukûk)’[27].

After the period of Mehmed II (1451-1481), new and independent legal guidelines about the registration of the Shar’iyyah records were enacted by the Ottoman authorities. These legal guidelines were called the Kanunnâme-i Rusûm (The Legal Code for the Shar’iyyah Court Fees). One article from this code mentioned: ‘In the early times, the fees for written judgment records were obtained – from the parties involved – in terms of different amounts, according to the views of the Muslim Scholars. But, now these fees were determined in the following way: All parties have to pay 0,25 % akca to the Shar’iyyah Courts for written documents about marriage contracts, Shar’iyyah huccah, transferring testimonies and petitions; 0,20 % akca for the judge and 0,05 for the staff of the Shar’iyyah court. 66 akca is paid for the written document of the emancipation (‘ıtıknâme); 50 akca for the judge and 10 akca for the deputy judge (nâib), and 6 akca for the staff of the Shar’iyyah court. 16 akca is the price fixed for the judge’s letters of appointments (murâsala), and 8 akca for all the legal cases, which were registered into the Shari’yyah Records as a resm-i sicil; 6 akca for the judge and 2 akca for the staff of the Shar’iyyah court.’[28]

If a judge takes away the book of the Shar’iyyah Records or neglects the documentation of any legal issues into the Shar’iyyah Records, could he be punished? In terms of the Ottoman Legal Codes, there are many articles about these issues. In the Public Legal Code enacted by Bâyezid II, the 138th article stipulates: ‘If the judge resigned from his judicial task and quitted his old task, he had to hand the Shar’iyyah Records Book over to the next judge. In case he leaves without handing it over, he might get punished, and/or accused and punished in terms of harming the affairs of the people’. In a legal code dated 1510, the 7th article arranges the second issue and states: ‘You, as a judge, should register the copy of these guidelines in the Shar’iyyah records. Be careful about loosing this book! Obey these rules every time! After examining this code, the emin (The official preserver of the Shar’iyyah records) has to preserve this document. Whoever becomes the emin has to preserve the Shar’iyyah Records.’[29]

After the Tanzimat movement, new arrangements have been established in terms of the writing and the preservation of the Shar’iyyah Records. The Solemn Instruction (The Talimat al-Saniyyah) dated 1296/1878 fixed the arrangements and the preservation procedures of the decrees (i’lams) and deeds (hujjahs) on more solid principles.

2. The Ottoman State’s Application of the Shariah according to the Shar’iyyah Records

The most important evidence that will help us develop an accurate understanding of the Ottoman legal order is the Shar’iyyah Records (Sijil al-Shariyyah), preserved and maintained by the Shar’iyyah Courts. We begin with a general evaluation of the issue at stake, based upon the scrutiny of over ten thousand records:

The scrutiny of these records makes it possible to determine not only the extent to which the Ottomans applied the Shariah, called the Shar’i Sharif, but also the restricted legislative power of the Sultans and statesmen, called ulu’l-amr. The practical fields of the customary laws, which were not definitely mentioned either in the Qur’an or in the Sunnah, were left to the limited legislative power of the statesmen of the time. Similar issues were arranged by the Legal Codes. Any opinion about the Ottoman Legislation without studying these records would be unscientific. At this level of discussion, a mention of the branches of the laws put forward by the Shar’i Sharif in the judgments of the Shar’iyyah Records [30] would prove very instructive.

According to the historical information, individual rights as part of the domain of the private law, and as linked to the real and legal persons, were widely known in the Ottoman legislation. The Shariah decrees regarding personal rights, competence, absence, along with other similar issues knew relatively wider application, whereby the books of the Islamic Jurisprudence (Fiqh) were considered as fundamental references.[31] Engagements, marriage acts, and similar matters were conducted in conformity with the Shariah decrees. Divorce, thought to be at the men’s discretion, and was used by women as well. The offspring, guardianship, and maintenance allowances and related issues were judged in accordance with the books of the Islamic Jurisprudence (Fiqh)[32].

The majority of the records concerning the law of inheritance involved inheritance contracts (taharuj), the State’s right to an inheritance, estate divisions and wills, in all of which the principles of Ilm al-Fara’idh (The Science of Sharing Inheritance among members of the same family) were strictly observed. The only exception is the transfer of the disposal right for public estate, which was left to the legal codes[33]. In the Shar’iyyah Records judgments relating to commodities, loans and trade, the Fiqh Laws of “transactions” (muamalat) were followed; the exception, being the disposal right for public estate, was arranged with the legal codes. Further, the Shariah decrees were applied to the private law of the States. With respect to such issues as the civil status (ahwal al-shahsiyyah) and the ritual matters (ibadah) [34] in particular, the dhimmis (non-Muslim subjects) were judged – at their discretion – by the decrees of the Shar’i Sharif (Shariah). Regarding criminal laws, the Ottoman State applied the decrees of the Shari’i Sharif. This issue, which we cannot take up in details at this level, should be evaluated taking account of a number of pertinent factors and characteristics. In the Islamic Legislation, crimes and penalties are classified into three main categories:

– The crimes and penalties of had, the degrees and elements of which are clearly determined in the Qur’an and Hadiths (The Traditions of the Prophet Muhammad, peace be upon him (Henceforward pbuh)), including hadd al-qazf (accusing a virtuous woman of incontinence), hadd al-sirqah (robbery), qat‘ al-tariq (banditry), hadd al-zina (adultery), hadd al-shirb (drinking wine) and hadd al-baghy, hirabah (insurgence). The Shariah records indicate that the Ottoman State applied the Shariah punishments for these crimes if accusations were substantiated.

– The crimes committed against individuals: The retaliation (al-qisas), the blood-money (al-diyah) and other Shariah penalties were applied continuously all over a period of 500 years. The work of Ömer Hilmi Efendi on this issue, entitled Mi’yar al-Adalah (Criterium of Justice) was adopted as a semi-official penal code towards the end of the Ottoman State.

– The crimes and punishments that fall outside the above-mentioned categories, called jazah al-ta‘zir, jazah siyasah al-Shar’iyyah or jazah al-siyasah. With respect to the crime and punishment issues, the degrees and the methods of application involved are transferred to senior officials (ulu’l-amr). The decrees mentioned in the first sections of the general legal codes developed by Sultan Mehmed II (1451-1481), Bayezid II (1481-1512), Selim I (1512-1520), and Sulaiman I (1520-1566) scrutinized these kinds of crimes and penalties. In the Shar’iyyah records, the term used for this kind of penalties was “punishment of reproof per code”[35]. As for the Law of Procedure, the Ottoman State applied the Shariah senior decrees, but in resm al-qismah and other exceptional matters – the most outstanding example in this case is the issue of the deeds, officials (ulu’l-amr) acted in conformity with the norms as well as the socio- economic conditions of the time. As the issue of the deeds is very much explicit, it is not treated here in full details.

The judgments of execution and bankruptcy were arranged according to the Shariah principles. Also, the Shariah included records relating to the law of finance. Many problems regarding the law of finance, were solved in conformity with the Shariah principles.

Regarding the administrative and constitutional law, it was found that a number of Imperial edicts (fermans), codes of law (yasaqnamahs and adalatnamahs), and rescripts were arranged within the framework of the limited legislative powers assigned by the Islamic legislation to statesmen.

3. Description of the Shar’iyyah Records, the types of documents they consist of and their legal merit

3.1. The terms Sijil, Mahdar and Saqq

With regard to the Shar’iyyah Records, three terms are essential. First, the mahdar, which literally means “presence” and “being present”. Technically, it has two meanings. First, it refers to the record of a law-case, that is, the written declarations of the parties’ allegations and proofs, which did not serve as the basis for the judge’s verdict, but which the qadi recorded well as an aide-memoire. The information in the mahdar did not form the basis for his judgment. The term mahdar is used with this meaning in the fiqh books[36]. These books refer to mahdar and other records in the chapters on the “Qitab al-Mehadir Wa”s­sijillah”, where the term mahdar is used as a synonym to the term records[37]. Second, mahdar also refers to the statements of witnesses and signatures of the chiefly subashi, chawush and muhdir, who were present during the verdict sessions with experts in the matter under consideration. These statements were formulated in the form of a written text arranged in such a way to endorse the accuracy of the document at stake. Occasionally, written witnessing statements were called mahdars, which then would be synonymous to proof (hujjah). The term mahdar was used frequently in the Shar’iyyah records in this second sense, signifying the minutes of security or the judicial investigation[38].

Literally, the sijil (record) means “to read, to record and to decide”. Its technical meaning refers to “such legal books containing all kinds of legal cases involving people, copies of qadis’ judgments, deeds, along with the diverse written records related to the judgment are called the Shar’iyyah Records (Sijillah al-Shar’iyyah), Qadis’ Books, Court Books, Minutes of Incidents (Sijill al-Zabt al-Waqai) or Book of Sijillah. All kinds of verdicts, deeds and Shariah documents issued by the Shariah courts were recorded in these books in strict conformity with their originals. A judge kept a book of records at the court to record all the verdicts and deeds for protection against falsifications[39]”. Such books were long, narrow and thick, i.g., 40 cm long and 16-17 cm wide. Though all the record books were relatively of the same size, still the size varied from court to court, and sometimes from judge to judge. The script was most often in the ta’liq style (a Persian style of writing). The paper was strong and bright, and the ink was so permanent that it maintained its brightness until today’s time. The names of the qadis are found in these books. Upon assuming his office, the first thing a qadi did was to write on the first page of the sijil his name, his title, the date he undertook his office, and confirm his obligations to deliver the sijil to his successor, either personally or through his trustee upon the termination of his office. If he did not deliver his sijil by himself, his successor would ask him to do so. The fact that the books had been purchased with a qadi’s personal money, or dues collected from people [40] did not affect, in anyway, the obligation to deliver them in the right moment.

Does the style of the sijil differ from judge to judge? No. All the written documents in the Shariah records were arranged and recorded in the Saqq al-Shar’i style. The term “Saqq” is the Arabized equivalent of the Persian word “chek”, which literally means patent, deed, title-deed, in short, the term refers to a written document. The technical term for the specific writing style used in the formulation and the recording of all kinds of the Shariah courts documents was the Saqq al-Shar’i. The Saqq books contained writing specimens that illustrated the style of formulation and writing of all documents, particularly judicial decrees and deeds. Thus, the formulation of documents in the Shar’iyyah records was based on a regular, consistent principle of writing and formulating. In order to facilitate the qadis’ task, Saqqs models for writing different issues were documented by esteemed qadis. The Records are, in general, in conformity with those model records of the Shar’iyyah records. The Fiqh books, entitled “al-Shurut” and “Kitabu”l-Mahadır wa”s-Sijillat”, discuss written procedures in the Islamic legislation. On the other hand, the Ottoman Shariah courts translated standardized written procedures into the Turkish language. In the early times of the Ottoman State (Othoman I – Mehmed II), the written mode in formulating documents was a mixture of Arabic and Turkish. After the late XVII, the Saqq books came to be exclusively written in the Turkish language, contributing to the consistency of the terminology in the Shariah records[41]. The following are some exemplary books of Saqq:

There are in fact a number of books published in this context. Due mention is made here of the book of Qadhasqar Beya­zîzâde Ahmed Effendi of Bosnia (1098/1687); the valuable work of Debbagh­zade Numan Effendi (1224/1809); entitled Jami”u”s-Saqq or Tuhfetu”s-Saqq, divided into five sections; the two-volume work of Durrizade Mehmed Arif Effendi entitled Durru”s-Suquq [42].

3.2. The general features of the Shar’iyah Records and the developments after the Tanzimat reforms

This section traces the general features of the Shar’iyyah Records. The relevant developments in the Shar’iyyah records are briefly discussed. Not all the written procedures in the Shariah courts were entered in records. The Shar’iyyah records that were recorded do not resemble current minutes of courts. With the exception of the written records of the foundations (waqfiyyah), the records, especially in old dated record books, do not generally exceed half a page; and in most cases, five, six, seven, or eight law-cases are entered on a single page. The oldest sijils are small, narrow and long so that they fit the pockets on a qadi’s cloak. The Record book number 2/1 of Mahkamah al-Bab (a lower court in the city of Istanbul, Turkey), containing a number of judicial decrees and deeds since the year 1076 A.H., has 146 pages, is 41×15 cm, written in the ta”liq style, with a finished paper, watermarked, and bound with a marbled paperback. The entry number 4/2 of the Court of Inspectors for the Imperial Estates which contain the Shariah records of endowments in the period from 944 to 949 A.H., has the following characteristics: 32×11 cm, written in various styles, mostly the ta’liq style, the paper of a normal thickness, white, finished, watermarked, 264 pages, bound with a marbled paper, a back cover and borders in leather, and the records are mostly in Arabic. The early Shar’iyyah record books had generally the same qualities, except for minor differences. After the Tanzimat Reforms, the judicial decrees and the Shar’iyyah courts records became longer and; accordingly, the record books for that period were larger. They included names and addresses of persons who identified the antecedent characters of witnesses, and explained the rationale of the judgments in greater details [43].

Every record book begins with a preface (dibajah), usually in the Arabic language, offering praise for the Shariah decrees, and for Allah and His Prophet. Afterwards, the name and the title of the judge, who kept the record, are mentioned. Often, the appointment order is mentioned of the judge who kept the record, particularly at the beginning of the book. Whenever one qadi replaced another, the dibajah was also changed accordingly. For example, in the Shar’iyyah Record number E27 (Isparta 1150 A.H.), the dibajah of the Qadi Omar Effendi, the Qadi of Isparta, is followed by the expression “Ya Fattah”, which takes place at the beginning of most records. The expression is repeated four times, after which the following couplet appears: If thousands of such books are bound, The Shariah of Ahmed will not expire until Doom’s Day.

The following is the original of the afore-mentioned dibajah (foreword):

Next, we find the qadi’s seal and the appointment decrees of Abdurrahman Effendi, the Anatolian qadhasqar. In all of the Shariah records, qadis’ signatures and seals appear together. The Books of Saqq provide models of signatures and seals used[44] for these purposes.

The courts were legally required to keep the records. Because a qadi often gave a copy of a judicial decree or deeds over to other authorities, the possibility of forgery was always present. If the qadi records his judicial decrees, deeds, and official letters in a book within the scope of his surveillance, he would be able to refer to the book in cases of necessity. Though the diligence undertaken to protect the Shar’iyyah records, most of the records gets lost over the course of time. Now, the number of the Shar’iyyah records that still survives in Turkey is very small in comparison to the total number [45] that existed in the past.

With respect to the records classification process, a number of jurists held that official entries in the records should be classified according the subject. In practice, jurists used to classify the records according to other criteria, such as the types of documents (see below). For instance, one jurist puts forward the following proposal. The Shar’iyyah record books should be divided into four categories: (a) the appointment of guardians, (b) the appointment of the Founders Board of Foundations, (c) the determination of alimony, and (d) the judicial decrees that contain judgments. It was convenient to preserve the record books according to this or similar classification types in order to ensure easy reference. Although this fashion of classification was adopted, another sophisticated method was used for the records of Istanbul all over the Ottoman lands, operating according to both the subject and the chronological order [46].

The Shar’iyyah courts were affected by the Tanzimat Reforms, and so were the Shar’iyyah records. Having been directed towards the Shar’iyyah Courts, the Regulation of 13 Safar 1276/1859 made indirect mention of the Shariah records as well as the dues to be received respectively. A key legal determination about the Shar’iyyah records was made in an Order dated 15 Dhilhijjah 1290/1874, included the Shar’iyyah Records and the Gazettes of Minutes of Law-cases. According to this legal determination, all the records of the Shariah courts, both in Istanbul and in the provinces of the Ottoman State are to be enumerated from the first to the last pages (Article: 1). The original copy of the written documents issued by the Shariah courts were entered into the Record and sealed with the special seal of the Registrar (Mukayyid Efendi) (Article: 2). As the records would be referred to and used in cases of necessity, the writing must be legible, without any erasure or scraping and there should be no insertions between lines; if so, the qadi must endorse and seal it (Article: 3-4). There must be no space between the records. For consistency reasons, the original copies delivered to the concerned people should be compared to the entries in the record (sijil). Anyone, who subsequently made an erasure or insertion, should be punished. The faulty records should be corrected. Every Shariah court was to have a special chest to protect the records; the chest should be sealed every evening by the Registrar, after the records have been deposited. When the qadi’s office term was over, he was to endorse the record book with his private seal[47].

On the 4th of Jamadhi’al-Ula 1296/1879, the Order of the Arrangement of the Shar’iyyah Records was published to define how the Shariah courts should arrange judicial decrees and deeds. This should serve as a possibly reliable evidence at the court, so that it would be possible to act and judge thereby without proof. We shall study in detail the information concerning the Shariah records; the afore-mentioned Order consisted of in the Section of Judicial Decrees and Deeds[48].

3.3. Types of the legal documents in the Shar’iyyah Records

The written records in the Shar’iyyah Record Books can be classified into two main categories. First, the records prepared and written by the qadis, falling into five sub-categories: deeds, judicial decrees, petitions, judges’ letters of appointment, and other records. The second category consists of prescripts, orders of appointment, instructions and other types of decree that were not prepared by the qadis. Still, these were entered into the record books because they had been sent over to the qadis.

3.3.1 Documents written by the qadis

Generally, the Saqq al-Shar’iah books explain and classify the documents to be included in this category consisting of 90 % of the entries of the totality of documents of the Shar’iyyah records. Therefore, we must closely examine the types of documents and their functions. Otherwise, we cannot be fully cognizant of the meanings and objectives of entries into the Shar’iyyah records. Indeed, during the Republican era there was considerable confusion regarding such documents[49].

Hujjahs (Deeds) and their Features

Literally, the term hujjah means a proof, that is, something that establishes an action as proven by evidence. In the Ottoman legal terminology, it has two meanings. First, it is associated with the legal proofs in a law-case (i.e., the witnessing, the acknowledgment, the oath or the abstention from an oath), in which case it is synonymous with beyyinah. Second, the hujjah, bearing (at the top) the seal and signature of the qadi, is a written document that contains the legal case, including the acknowledgement and the approval of the parties involved. In the post Tanzimat Ottoman, the term senet was used instead of the term hujjah. The Shariah hujjahs (deeds) were called Senedat al-Shar’iyyah[50]. In the public use, any document that bore at the top the signature and the seal of a judge, whether (or not) it contained a judgment, was known as a hujjah. The records at the Prime Ministerial Archives are, thus, hujjahs.

The majority of the written records in the Shar’iyyah records are hujjahs (deeds). Their features and types are as follows. First, the Islamic legislation distinguishes between the physical and the spiritual types of punishments. Accordingly, any legal case that was settled with a definite proof (bayyinah = hujjah) would not be transferred to the court. Similar cases did not cause any disputes, and rarely found their way to the courts. When the court worked out a hujjah (deed), presented it to the concerned parties, and registered a copy in the record book, there would be no legal disputes with regard to the issue at stake – apart from some exceptions. In cases of dispute, the court would issue a verdict on behalf of the party which held the hujjah. A hujjah issued at the Shariah court was like a judgment against the opposing party, with regard to the legal affair involved. A hujjah stating that a house had been purchased was in itself a definite proof possibly used in a law-case filed against the person who bought the house. There are only few examples in the records of cases transferred to the courts, despite the existence of hujjahs favoring the defendant. These were actually few. This explains, at least in part, why this type of written document was called a hujjah[51]; and why hujjahs formed the majority of the entries in the Shar’iyyah records. Further, the difference between a hujjah and a judicial decree (ilams) (see below) can be illustrated as follows. With respect to a hujjah, a judge does not issue a judgment and the Shariah court, like today’s public notaries, merely notes down a legal case as it was. Nevertheless, some hujjahs were drafted, so that they might serve as judicial decrees as well.

A copy of the hujjah was given to the parties, and registered in the record books. Thus, there were two copies of each hujjah: One copy was given to the concerned parties, the other was entered in the records. The common characteristics of the hujjahs are as follows. At the top of the hujjah delivered to the parties involved, the signature and the seal are found of the qadi who issued it. This is not true of the hujjahs in the record books, where a judge’s signature and seal are found only at the top of the record, or at the top of the entry registered by the judge on the date of his appointment, as well as the date on which he begun his office. Sometimes, the qadi’s signature is found at the top of the hujjahs copies entered in the records. But how is a hujjah formulated?

– In a hujjah, the names and addresses of the concerned parties are formulated in way to avoid any doubts.

– A definition of the commodity or the right that forms the subject of the hujjah.

– A declaration regarding the manner, conditions and – if any – the delivery and receipt of a legal procedure.

– A declaration that the consenting party acquitted the opposing party and that the issue would not be subject to any further law-suit and dispute. If the case of a party has been approved (endorsing the declaration of approval), mention is made, on request, of the fact that the case in question had been recorded.

– The hujjahs ended with the date, i.e., the year, the month, the day, and sometimes, the time in the day.

– At the bottom of a hujjah, appear the names and the titles of the witnesses who witnessed the legal procedure, under the title of “Shuhud al-Hal” (Witnesses of the Law-case) or “Shuhud al-Muhdhir”. For instance, if the hujjah recorded a contract of purchase, mention is made of the names of the vendor and the purchaser, the features of the property sold, the declarations of the offer and the acceptance, the price and the qualities, the delivery and the receipt, etc. [52].

Generally, a hujjah begins with the following expressions: The name of the city in which the court issuing the hujjah was located; the name of the city was qualified with the words “mahrusah”, “mahmiyah”, or “madinah”; for example, “… subject to the Town of Kabatash, of al-Galata al-Mahrusah …”, “… in the Quarter of Bakir Pasha in Mahmiyah al-Istanbul…””, “… in Madinah al-Erzurum…”; or in hujjahs of estimation and examination, “for examining and investigating the issue to be mentioned on the spot…”; or “for the investigation and estimation of the matter to be declared at the locality thereof…”; or “it is that…”, “the reason for the investigation of the book is that…”, “the reason for the investigation of the letters is that …”; or similar introductory expressions or opening sentences [53].

In the Regulations for the Shariah Courts dated 1276/1859 and in the Order of Shar’iyyah Records and the Gazettes of Minutes of Law-cases dated 1290/1874, and in the Order of Deeds of the Shar’iyyah dated 1296/1879, the arrangement of the hujjahs is based upon sound principles [54] (see below the section of the Judicial Decree for more insightful details).

The following document, part of which is translated from the Turkish language, is a hujjah for a vending contract (bey’-i qat’i) arranged by the Galata Court: [55]

“The person named Mehmed Emin son of Omar, who lives in the Village of Kuruçeşme, affiliated to the Town of Beşiktaş, of the nahiyah of Galata, has presented to the High Shariah Committee, in the presence of the young man called Çavuşzade Mehmed Emin son of Ismail, who is the owner of this written document, the following declaration of approval all of whose elements are legally complete. And he has received it under the same conditions, and I have received from him the full price, thereof 600 kuruş which he has given. Now the afore-mentioned house was transferred to the property of the afore-mentioned purchaser. Accordingly, he can use it as he wishes. After these declarations of consent had been endorsed by the Court, the case was entered in the Records upon request. 21 Shawwal, 1169 / 1756.

Witnesses:

Ismail Usta (Mason) son of Mehmed, the mason of the village,

Seyyid Hussain Effendi son of Imam Mehmed Effendi,

Hammami Janitor Hussain,

Haj Mustafa son of Mehmed,

Abdullah Chelebi the Muhdhir (a justice court officer who summoned people in the judge court),

Mustafa Effendi son of Muazzin Ali,

Darwish Mehmed son of Ahmed,

Bölük Mehmed Bey son of Ali,

Hammami Ali Beshe (son of Mustafa),

Ali Agha son of Musa

And the rest””

The Subjects and Some Kinds of Deeds (The waqfiyyah, endowment deed)

As some deeds are arranged according to their subjects matter, let us consider the most significant ones. Many deeds are arranged according to their subject matter. The main subjects include marriage contracts (marriage deeds), the marriage of a minor by either its parent or a qadi, the execution of a woman’s marriage contract by a proxy, the validity of a marriage contract, etc; hujjahs of divorce (hujjah al-talaq), the irrevocable divorce (talaq al-ba’in), the commitment to the charge of someone or postponement of a divorce, ect; the divorce with mutual consent owing to incompatibility (hujjah al-muhalaa), the termination of a marriage (faskh al-ni­qah), the dowry (hujjah al-mahr), the alimony, the guardianship for upbringing (hujjah al-hidanah), the appointment of a trustee by a woman, the manumitting slaves (itq, tadbir, muqatabah), the providion of permission and authority, the vending contracts, the cession of property (hujjahs al-faragh), the sale with power of redemption (bey’al-wafa), the right of pre-emption (hujjahs al-shuf’ah), the donations, the things given into the safekeeping (wadiah), the pawns (rahn), the restitution of property (istihqaq, zabt), the acknowledgment (iqrar), the transfer (hawalah), the witnessing (shahadah), the guarantees (qafalah), the companies, the proxies, the retaliation (qisas), the blood-money (diyah), the reconciliation (sulh), the acquittal (ibra) and bankruptcy (iflas); and the appointment of officers such as qathudas, subashis, ect [56].

One type of the hujjahs is sui generis: Waqfiyyahs. They differ from other hujjahs with respect to both style and content. The waqfiyyahs relate to written documents concerned with the legal status of a person – the focus here is on the nature and status of a person’s foundation); and the written documents endorsed by a Shariah court at the end of a hypothetical law-case. These written documents differed from other types of the hujjas not only because of their status and nature, but because of their form and content as well. Apart from the general qualities of hujjahs, a waqfiyyah contains a foreword (dibajah) at the beginning, which varied in form from an endower to the next. Each waqfiyyah depends on the nature of the file underlying a law-case along with the other elements involved. Notwithstanding the slight differences between waqfiyyahs of movable assets, real estate, cash money, non-Muslims and the hujjahs that concern the exchange of the foundation property (istibdal), let us examine a waqfiyyah against the background of the Anatolian Shar’iyyah courts[57].

“It is endorsed that the case is as mentioned in this document; and part of which is translated from the Turkish language. This document has been issued by Mehmed Efendi, the Qadi of Burdur.

Countless thanks and innumerable praises be to Allah, the Possessor of all what is in the heavens and on earth, the Greatest. The reason for the writing of this document, which is legally valid, is as follows: The person called Omar Effendi son of Mustafa, the legally authorized proxy of Çelik Mehmed Pasha son of Haj Ahmed Pasha, one of the inhabitants of the City of Burdur, made the following acknowledgement at the Shariah Court in the presence of the Sheikh Haj Ali son of Sheikh Ibrahim, who has been designed as a Founding Member, in order to register the endowment transaction to be explained below: My client, Mehmed Pasha, hereby endows – for the sake of Allah – …,,

The date of the document is 20 Rabi’ul-awwal, 1160.

Witnesses:

Haji Ahmed, son of Salih,

Mehmed Agha, son of Yusuf,

Ali Agha, son of Ahmed Agha,

Darwish Agha, son of Mehmed Agha ’[58]

Al-hujjah al-dhahriyyah is another interesting type of the hujjahs. The term dhahriyyah refers to the declarations, orders and footnotes written or put at the back of official documents. A hujjah containing such declarations, orders, and footnotes is called Hujjahs al-Dhahriyyah. For instance, one side of the document may contain the Sultan’s decree, while the other side is the endorsed copy of the hujjah that was prepared accordingly. Many such hujjahs are preserved in the Prime Ministerial Ottoman Archives.

Judicial Decrees: Definition and Arrangement

Judicial decrees of Shariah (I’lamat al-Shar’iyyah) are similar to current court verdicts. The terms i”lam means “to advise”. As a technical term, i”lam refers to a written document containing a Shariah decree, at the bottom part of which one finds the signature and the seal of the judge who issued the judgment. Each i’lam document contains the plaintiff’s allegation as well as supporting evidences; the defendant’s reply; and in case of refutation, reasons of such refutation; and in the last section the rationale for the judgment issued. The most significant feature distinguishing i’lam documents from the Shar’iyyah record entries is the judge’s verdict. Any document that contains a judge’s decree is an i’lam, not a hujjah (deed), ma’ruz (petition) or anything else. Colloquially, however, any document bearing a qadi’s signature and seal, irrespective of whether (or not) it contains a judgment, is known as i’lam. At the Prime Ministerial Archives level, petitions are often registered as i’lams.

A judge who serves in the Shar’iyyah courts issues his judgment according to the Shariah decree, based upon the law-case file. First, he orally informs both parties of his decree; and, then, draws up a document with the rationale for the judgment, a copy of which is handed over to both the plaintiff and – if necessary – the defendant. Another copy is entered in the record book. When a judge drafts a decree, he must study the minutes of the law-case, and demonstrates diligence, so that the decree he issues will not contradict the records of the law-case file. The Solemn Instruction (Talimat al-Saniyyah), dated 1296/1878, fixed the drafting of decrees (i’lams) and deeds (hujjahs) on sounder principles to serve as definite proofs. Such principles serve as the guidelines whereby the gazettes of minutes (i.e., the minutes of law-cases, including all the records regarding the procedures of a law-case at the Shariah courts) could be preserved. Before a Shariah decree was issued, a draft decree would be written in accordance with the essentials of the Saqq al-Shariah, based upon the minutes of the law-case, as recorded in the gazette. Although it was possible to amend some statements in the copies of the minutes while writing the draft, no amendment altering the course of the law-case was allowed. If either party stated the lack of witnesses, this would not only be indicated in the decree, but would eventually fail to satisfy the principle of “showing disability in establishing evidence” as well. After the scribe had written the draft decree, it would be corrected by the Sadrain (the two qadhasqars of Rumelia and Anatolia), katib al-waqa’i (the clerk who kept a register of events), Reis al-Awwal (the head chief) and the head clerk. The draft would, then, be submitted to the judge. After having examined the decree, and written “let it be written”, the decree would, then, be written. Afterwards, both the scribe and the concerned officials would examine the decree, and sign the back thereof. After having completed the final scrutiny, the judge would enter the decree in the Record Book. The arrangement of hujjahs was subject to the same procedure[59].

There were no differences in style, expression, or form between the decrees written before and after 1296/1878. However, the Regulation of 1296/1878 transformed the hitherto unwritten principles into written principles.

Judicial decrees: qualities, types and models

A judicial decree drafted in a Shariah courts must display the following basic qualities. The judge’s signature and seal were placed at the bottom of a judicial decree. The judge signed the decree by writing his name and a patronymic respectively. A seal contained the judge’s name, his father’s name, and sometimes a short expression of supplication. This formality of the judicial decrees was entered, and annexed to the records at the beginning of the Record Book[60]. Classical statements about the signatures and seals to be used may be found in the books of Saqq al-Shariah.

The description of the parties and the location of the law-suit is similar to that of a hujjah. In the judicial decrees, we find first the plaintiff’s address, name and father’s name. If the plaintiff is from another district, his hometown is indicated. He is also expected to state the reasons why he is visiting the locality in which the trial is heard, and the specifications about where he still lives. With respect to the defendant, the name and the title as well as the father’s name are registered. Often, his address is not mentioned. In this respect, the judicial decrees are similar to the hujjahs.

The allegation, i.e. the subject matter of the law-case, must be fully mentioned. The statements of the plaintiff, noted in the minutes, had to be examined; any repetitions or statements irrelevant to the decree had to be deleted; and the allegations and statements the plaintiff made in several sessions had to be collected. This part of a judicial decree contained the allegations of the plaintiff, without any omission or addition.

­ The defendant’s reply refutations and objections. A defendant either accepts or rejects the plaintiff’s allegation, or files a counter suit (defi) in order to rebut the allegation. The judicial decree specifies which choices were made. If a defendant denied an allegation, this was specified in the decree with formulae such as “after the question…” (gıbbe”s-sual…), or “after rejection…” (aqiba”l-inqar…). A defendant might partly accept and partly reject an allegation, in which case the decree would state “… after the question (the defendant) will in his afore-mentioned reply accept …………… and reject ………………” Alternatively, a defendant might accept the plaintiff’s allegation, in which case the decree specified his consent word-for-word. Finally, the defendant might open a counter suit (defi), in which case the judicial decree refers to the counter suit with a formula like “… (the defendant) will open a counter suit by stating in his afore-mentioned reply ……… in the course of his talk and after the rejection” [61].

The rationale for a judicial decree. A proof, i.e., an evidence or a supporting allegation, is usually required in a judicial decree with the expression “… when, after the question and following his rejection, the afore-mentioned plaintiff was asked to present evidence in conformity with his allegations…”. The expressions used to refer to the means of evidence were different as well.

The acknowledgement: The acknowledgement of a defendant was written word-for-word, as in the following cliché, namely “gıbbe”s-sual merkum … ceva­bında fi”l-hakika kaziyye bi”l-cümle müdde-i mezkurun takrır-i meşruhu üzre olub… olduğuna bi tav”ihı ikrar ve itiraf itmeğün…”

The written proof: The judge must transcribe a written proof in the judicial decree verbatism, except for written proofs irrelevant to the case. In some judicial decrees, fatwas (judicial opinions), or legal decrees that formed the basis of the judgment are commonly found.

The witnessing: In the earlier times (i.e., 14th and 15th centuries), the name, sex, religious affiliation, and the address of the witnesses were written in the judicial decrees. It was also noted that the witnesses knew the defendant; the witnessing declarations were recorded verbatim. In such judicial decrees, these matters were given more emphasis. After having identified the witnesses, either openly or secretly, in terms of their antecedents and characters, the situation of those who purified the witnesses began to be described and written in the judicial decrees as well[62]. In Jumadhi’al-Akhir 1283/ October 1866, Sultan Abdul Aziz sent a rescript (ferman) to qadis so that those persons who, either openly or secretly, established the characters and antecedents witnesses should be recorded in the Shar’iyyah records.

The oath or abstention from an oath (nuqul): In the Judicial decree a judge had to present a copy of the oath he proposed, for the suggested oath might be in conformity with the regulations; in that case a defendant’s taking an oath or abstaining from it could not form a basis for the judgment. In the Shar’iyyah records, the religious belief of the plaintiff and/or the defendant played a significant role in the formulation of his oath. People were asked to swear an oath according to their religious beliefs [63].

­ Ultimately, a judge proclaimed his judgment at the end of the judicial decree, using different formulaic expressions, according to the means of proof. For instance, if the means of proof were an acknowledgment, the judge would use the term “binding” (ilzam) like “…bound by the above-mentioned Ali Agha so as to reject and acknowledge…”. If the means of proof was a witness testimony, the term “order” (tanbih) was used, e.g., “the proxy of the above-mentioned…was ordered for refusal and acknowledgement…”. We also find such expressions as “it was decreed that …”

The above-stated expressions are used for the judicial decree of the qadah al-ilzam type (performance of binding), the binding judgment, or of the qadha al-istihqaq type (execution of restitution). This means that “the accused person was bound in terms of the disputed case by the judge’s saying such things as ‘I have decreed that the claimed thing be given’”. In the decrees called “performance of renunciation” (qadha al-tarq), the judge rejects the plaintiff’s lawsuit with such expressions as “you have no right, so you should not dispute”, “… has been prevented from dispute” or “… has been prevented from dispute from the aspect of Shariah …”. By careful attention to these formulaic expressions, i”lams may be distinguished from the other entries in the Shar’iyyah records[64].

The judicial decrees issued by the courts were called i’lams because the addressees in the court decrees were of the execution order. Such courts, executing the judicial tasks, were obliged to submit their decrees to the office of execution. Qadis had to submit their judgments to the Sultan, the head of the execution order, or to the Grand Vizier, regarded as the Sultan’s proxy. For this reason, particularly from late XI century onwards, the judgment section of the judicial decrees began to use expressions such as “… submitted to his royal highness that …”, “… submitted to his excellency that it was ordered that he…” or “… submitted to his royal highness through the privilege of Mehmed Chawush that … Al-Amru lemen lahu”l-amr”. It was for this reason that – from the late 11th century onwards, the following expressions began to be used at the beginning of judicial decree: “Ma”ruz-i dai-i Dewleh-i Aliyyah …”, or “… Ma”ruz-i dai-i dewam-ı omr…”. Sometimes, only the expression “Ma’ruz” was used at the beginning of judicial decrees. These expressions have caused some researchers confuse judicial decrees (i’lams) with petitions (ma’ruzs) or “ma’ruzat”. Such documents are different from i’lams. An understanding of these matters is a prime requirement in distinguishing i’lam from maruzs. In the legislation assigned to Sultan Mehmed I and to Sultan Sulaiman I, it was obviously mentioned that some important judicial decrees “would be submitted to his royal highness”. The submission of certain specific decrees to the office of execution was stated in details [65]. Dates were written either in Arabic and/or in ways similar to the modern styles, e.g., “… on 28 Sha’ban al’-Muazzam year 1169”.

Unlike the case of deeds (hujjahs), it was not necessary for judicial decrees (i’lams) to contain, especially at the end, a list in the names of the witnesses, under the title of “Shuhud al-Hal”. If the means of proof was a witness testimony, the names of the witnesses might be written at the end of a judicial decree, as was done in deeds in the past. Later, the witnesses were never mentioned, particularly in judicial decrees based upon acknowledgments. Yet, the names of the complainants were likely to be mentioned in the decrees involving crimes. Judicial decrees were different from deeds in this matter. In the recent records, documents where mention was made of witnesses were considered as deeds; while others were viewed as judicial decrees. Nevertheless, the fact that witnesses would never be mentioned under judicial decrees[66] should not be taken for granted.

With respect to the types of judicial decrees in relation to their subject matter a number of remarks could be made. Judicial decrees are generally mentioned under the following terms, differing according to their subjects: acknowledgment of debts; proving receivables; offering the oath to the opposing party (tahlif); the postponement of receivables; guarantee, the transfer and restitution; the right to determination; the proving freedom; the lease (ijarah); endowments; acts of marriage and divorcing; the punishment by reproof; penalties for accusing a virtuous woman of false accusation (qazf), wine drinking (shurb) and adultery; examining buildings; the examination of the murdered; receivables wherein were written decrees of blood money and which were similar to deeds; the retaliation; the conversion to Islam or the apostatizing from Islam (irtidad); the reconciliation; the determination of the Month of Fasting (Ramadan); the crime of thievery and the punishment thereof (hadd al-sirqah); etc.

Any document related to one of the above-mentioned subjects, including the judgment of a qadi, is a judicial decree (i”lam), even if the term “ma”ruz” is mentioned at the beginning, or “witnesses of the case” (shuhud al-hal) at the bottom; or that no witnesses were mentioned therein; or that the expression “ma’ruz al-dawlah al-aliyyah” is mentioned at the beginning. They acquire the status of a decree by virtue of the (qadi) judgment they contain.

­One of the most important types of judicial decrees (i’lams) is the case of a judicial decree relating to receivables, the means of proof being a witness testimony (ISBAB, 2-110/43a):

“Being the cause of the issuance of this written document itself Mehmed Beşe son of Mahmud, a butcher, uttered the following allegation at the council of the Shariah court in the presence of the defendant, Osman Bey son of Mustafa: In return for the meat purchased from me, the weight and amount of which is known to both of us, and after the calculations have been made, the aforementioned Osman owes me 2020 akchas. As a matter of fact, Osman Bey acknowledged – a day before the drafting of this written document – that he owes me 2020 akchas, in the presence of witnesses. I require that the matter be fully investigated and that Osman Bey be ordered to pay me the declared amount’. When the defendant was asked about the situation, he denied; and the plaintiff was asked to present evidence to support his allegation. Thereafter, the plaintiff brought Abdullah son of Mustafa as witnesses to the Shariah Council, a Muslim and trustworthy person, who lives in the Quarter of Awliyah in Istanbul; and Hasan son of Ibrahim, who lives in the Quarter of Walad Karabashi. After the afore-mentioned witnesses were asked about the matter, they presented their declaration of witnessing which is legally valid, saying: ‘In truth, Osman Bey owes the plaintiff 2020 akchas as the price of the mutton, the truth of which he admitted a day prior to the drawing up of this document in our presence, designating us witnesses as well. Therefore, we are now the witnesses of the same thing and we witnessing it”. When the character and antecedent witnesses were established and their witnessing was accepted, a judgment was given for remuneration and the defendant was duly ordered; and the matter was thereafter registered in records, upon demand.

Dhil-qadah, 1127/1715.

Mehmed son of Ahmed Chelebi,

Abdullah son of Abdullah Chelebi,

Mustafa Chelebi, son of Sha’ban oğlu,

Abu Baqr, son of Qatib Ahmed.”

N.B. The term “tanbih” is used in the above-mentioned decree as the means of proof. E.g., witnessing.

 

Ma’ruzs

The term ma’ruzs literally means “something presented”. Technically, it has two meanings. One primary and one secondary. The primary meaning refers to an independent document which did not comprise the judgment of a qadi. Although written by him, it was not be acceptable as a written proof for the determination of a legal case. It was a written document in which the qadi merely submitted an administrative matter over to the office of execution; or petitions of complaint submitted to the office of execution or to the qadi. Maruzs were often documents and records written by officers of lower ranks to their superiors to submit a request or a case. These documents, called ma’ruzs were also known as arizah or arz.[67]The secondary meaning is associated with an i”lam addressed and submitted to the office of execution. For instance, Ma’ruz books at the Shar’iyyah Records Archives of the Office of Mufti of Istanbul are registers of i”lams, i.e., catalogues containing i’lams. From the eleventh Century A.H. onwards, most i”lams began with the statement “Ma’ruz al-Dai al-Dawlah al-Aliyyah …”. These i’lams were incorrectly qualified as particularly referring to those cases involving penal codes in which the word ma’ruz is written at the beginning as the minutes of investigation submitted by regents to qadis. These were i’lams of courts relating to penal codes and judgments submitted by regents to posts of execution (the Sultan, Grand Vizier). Just as important decrees were submitted to the office of execution in the Legal Codes of Sultan Mehmed I, the same tradition was carried on towards the end of the Ottoman period. Each issue of Takvim al-Waqa’i (the first Ottoman official gazette) contained the decrees of retaliation, submitted to, and endorsed by the Sultan. Moreover, i’lams in saqq books are identical to i’lams registered as ma’ruzs.

The difference between a ma’ruz written by a qadi and i’lams registered as ma’ruz is that the former does not contain a qadi’s judgment. Rather, the qadis submits the following matters to the relevant offices of execution: A Vizier might submit a report on the good conduct of muftis and qadis in the region and a request for their promotion (ma’ruz of good conduct, maruzah al-husn al-hal); they might submit a report on the bad behavior of bandits, and demand that action be taken (maruzs of bad conduct, ma’ruzah al-su’ al-hal); they might inform the office of execution of vacant posts (ma’ruzat al-jihat al-mahlulah); they might submit a report on tasks (jihats) withdrawn or abolished (ma’ruzah al-jihat al-mafrugha wa marfu’a); they might provide information about the receipt of a decree sent by the central administration; they might submit report on the situation of qadis and ulamahs (savants) who served as unpaid beginners in official posts (mulazamah); and they might submit a report on diverse affairs, including the release of prisoners, the death of governors and qadis, or requests for license [68]. The following is an example of (ma’ruz) petition:

“Long live our (Grand), (illustrious) and blessed Sultan! I am one of the dwellers of Hasköy. Recently bandits appeared in the afore-mentioned village, and broke into my house and stole my belongings. I submit to the will of my Sultan that I suspect some persons. If your highness would kindly convey a written decree to Bostanji Agha, he will investigate the matter. The Edict (Ferman) is from my Sultan.

Sayyid Omar, son of Idris”.

Upon receipt of the written complaint, the Grand Vizier, the representative of the Sultan, conveyed the following decree to Bostanjibashi Agha:

“It has been decreed that the Honorable Bostanjibashi Agha should investigate the matter so that the suspected persons and robbers should be apprehended and brought to justice.

On C. 1085”.

The Murasalah (A judge’s letter of appointment)

Qadis carried out other types of official correspondence. For instance, upon receipt of an edict or decree from the capital, a qadi might write an official letter to the voivode or qatkhudah of a district ordering a criminal be apprehended. With an official letter, he might also transfer the office of the qadi to which he had been appointed to an office of substitute judges. Documents written by qadis to persons or offices of his rank or of lower ranks were called murasalah (plural murasalat). These documents may be classified into two categories: Documents that concern the summon of the accused to the court; and documents that concern other related issues[69]. All such documents were registered in the Shar’iyyah records.

3.3.2 Documents emanating from other offices and registered in records

In the capital, particularly in the provincial areas, qadis received many decrees, sent generally by the central administration to any beğlerbeği, a principality a sanjak, or a town. These degrees were addressed to the qadis, who were charged not only with the Shariah affairs but with the executive power in their respective regions as well. Qadis registered decrees (fermans), imperial letters (berats) and similar decrees usually sent by the Sultan, or orders conveyed by the Grand Vizier, beğlerbeğis and qadhasqars as well as other written documents sent by the diverse state institutions in the Shar’iyyah Record Books. Let us now examine these documents.

Decrees and edicts from the sultan

Such decrees and prescripts issued by the Sultan may be classified into two main categories: The first category consists of decrees (awamir and faramin), written by the Sultan, based upon his judicial power as Head of Executive Power. The Sultan might inform a qadi that he had selected one of the several views on a disputed matter of the Shariah, or he might convey a written decree endorsing the execution of the Shariah decrees, or formulate some rules upon the abstract (talhis) of the Imperial Council, within the limits of authorized arrangements, about which he, then, informed the qadis. These documents were often issued at the Office of the Qadi of Istanbul, whereby special books were sometimes devoted to them. The documents are important sources of the Ottoman Legislation. In case the book is not used, the document would be registered at the beginning, or in the middle of the Shar’iyyah records, and sometimes at the end, so they would be separate from other types of entries. An edict regarding the distribution of barley and profiteering (IS-I-25/17-18) is a case in point.

Secondly, the Sultan issued prescripts, imperial letters and orders, that – unlike the decrees in the first afore-mentioned category – concerned the assignment of tasks, i.e., assigning fiefs to persons, licenses of trade, ect. In the Ottoman State, the office of the qadi, the imam, the preacher, and the holder of the public land, among others, was assigned to persons in official memoranda, emanating from the qadhasqars and grand viziers, and in edicts and imperial letters of the Sultan. A copy of the edicts and imperial letters was registered in the Shar’iyyah records of the respective localities. Included in this category were exemptions and trade licenses granted to individuals.

 

Orders from the Grand Vizier, Beğlerbeğis and Qadhasqars

After the Sultan, the Grand Vizier, the absolute deputy of the Sultan, was charged with the execution and the follow-up of the Shariah decrees and laws. The grand viziers – based upon a decree of the Sultan, could draw the attention of the qadis to some legal affairs. The Shar’iyyah records contain mandates (buyrultus), i.e., the written orders of the grand vizier, in which he appoints admirals, viziers, beylerbeys and qadhasqars. Sometimes, beylerbeys and sanjaqbeys issued buyrultus, whereby some buyrultus announce appointments of the qadis under the wings of the qadhasqars, who, in turn, appointed all the qadis, including some senior qadis.

 

Tazqarahs, Tamassuks and the other records

Tazkarahs

In the Ottoman diplomacy, documents relating to the official affairs, known as tazkirahs and tamassuks were written by the senior officers. In recent times, it became customary to call any correspondence between state offices, within the same city or town, tazkirahs; the inter-city correspondence was known as tahrirah.

Tazkirahs were written by the executive secretaries of the senior statetesmen, chiefly the Grand Vizier. For instance, the office of finance clerk affiliated to the Anatolian Directorate of Finance charged with writing financial decrees in the Anatolian Province was called the Tazkirah al-Ahqam al-Anadolu; while the offices charged with writing the financial affairs of Rumelia were known as the Tazkirah al-Ahqam al-Rumeli. The Accountancy of the Haremeyn or the Accountancy of Endowments issued the tazkirahs relevant to the financial affairs of a religious endowment. These offices issued a tazkirah to persons who were allocated prebends with a license. A copy of such tazkirahs was registered in the Shar’iyyah records with the license upon which it was based. It was the qadi who executed such orders, and it was compulsory to enter a copy of the order document in the records.

Tamassuks

Literally, the term tamassuk means “taking firm hold of a task”. Technically, it has several technical meanings. A bill acknowledging a debt was called tamassuk. Sealed documents in peace treaties negotiated by the state or by real or artificial persons were also known as tamassuks. The meaning of tamassuk in the Shar’iyyah records is as follows: A document issued by an authorized office or person to someone who holds the right to use a public land and inaccurate foundations. In other words, a tamassuk document conferring the right of use was later replaced by the title “deed”. The office and the person who issue a tamassuk included owners of fiefs (sahib-i arz) and owners of zaamah (large fiefs), the founder of a religious endowment, contractors (multazims), tax collectors (muhas­sils) or accountancy clerks. For example, tamassuk documents pertaining to various religious endowments were issued by the Ministry of the Imperial Mint (Nazarah al-Darbkhanah al-Amirah).

Other records

The above-mentioned documents account for 90 % of the entries in Shar’iyyah records.

 

4. Conclusion

In this paper, we have seen that the Ottoman State judicial system operated extensively in terms of the Islamic legislation. The judicial organisation or the Shariah court system came into being during the early times of the Ottoman State. Such offices as the Shaikhuislams, Qadhasqars, and Qadis used to form the bulk of the judiciary body of the Ottoman State. We have also seen that a number of developments affecting the Ottoman judicial body came over, especially during the Tanzimat period, and the era of Mahmud II along with the period that followed onwards. These developments brought about changes in the status as well as the function of the key actors in the judicial enterprise of the Ottoman State (i.e., the Shaikhuislams, Qadhasqars, and Qadis).

To see to what extent the Ottoman State applied Shariah according to Shari’yyah records, an evaluation of over ten thousands records from the Ottoman archives was done; for any opinion about the Ottoman Legislation without studying these records would unscientific. Such an evaluation provided evidence counteracting some scholars’ claim that Ottoman State operated with customary law, while putting less emphasis on Islamic legislation. Another idea that emerged from the analysis is that the Ottoman Islamic legislation system was too dynamic. The Ottomans applied to significant degrees the Shariah, called Shar’i Sharif, the restricted legislative power of Sultans and statesmen called ulu’l-amr. The practical fields of customary laws, which were not definitely mentioned either in the Qur’an or in the Sunnah, were left to the limited legislative power of the statesmen of the time. Similar issues were arranged by the Legal Codes. Shariah decrees in the books of Islamic Jurisprudence were considered as fundamental reference.

With respect to criminal law, the Ottoman State applied also the decrees of Shari’i Sharif, especially regarding crimes and penalties of had, crimes against individuals, and crimes of jazah. The degrees and methods of application with respect to crime and punishment involved were transferred to senior officials (ulu’l-amr). A number of decrees were developed by the Sultans of the Ottoman State, which scrutinized all kinds of crimes and penalties. Concerning administrative and constitutional law, a number is found of the Imperial edicts (fermans), codes of law (yasaqnamahs), adalatnamahs, and rescripts arranged within the framework of the limited legislative power assigned by Islamic legislation to statesmen.

Again, we have seen that the Shar’iyyah records in the period of Ottoman State were preserved better than in other Islamic states. The Ottoman State had arranged the preserving of the Shar’iyyah records with laws, decrees and some local orders. The first law about this subject is a legal decree enacted by Sultan Bâyezid I, in which there are some rules about the writing and the preservation of documents and registration procedures. At the period of Sultan Mehmed II (1451-1481), the Public Ottoman Legal Code was about Shar’iyyah Records After the period of Mehmed II ((1451-1481), new and independent legal guidelines had been enacted by Ottoman authorities about registration of Shar’iyyah records. These legal guidelines have been called Kanunnâme-i Rusûm (Legal Code for Shar’iyyah Court Fees). After Tanzimat movement, new arrangements have been done about writing and preserving Shar’iyyah Records.

With reference to the types of legal documents and their features and legal merit, a number of written records in the Shar’iyyah Record Books were classified into two categories: the records prepared and written by qadis, which, in turn, fall into five sub-categories: deeds, judicial decrees, petitions, judges’ letters of appointment and other records. Second is the category consisting of prescripts, orders of appointment, instructions and other types of decree that were not prepared by the qadis.

 

THE REFERENCES

Abdurrahman Şeref, Talks on History (Tarih Musahebeleri), Istanbul 1934.

Akgündüz, Ahmed, Ottoman Legal Codes (Osmanli Kanunnâmeleri), I, Istanbul 1989; II, Istanbul 1990.

Akgündüz, Ahmed/ Research Board for Turkish World, Shar’iyyah Records (Şer’iye Sicilleri), I, Istanbul 1988, II, Istanbul 1989.

Akgündüz, Ahmed, the Compared Collection of Islamic and Ottoman Legal Codes (Mukayeseli İslam ve Osmanlı Hukuku Külliyâtı), Diyarbakır 1986.

Akgündüz,Ahmed, The Institution of Foundations in Islamic Legislation and the Ottoman Practice (İslam Hukukunda ve Osmanlı Hukukunda Vakıf Müessesesi), Ankara 1986. ­

Al-Fatawah al-Hindiyyah, I- VI, Beyrut 1400/1980..

Ali Haydar, Duraru”l Hukkâm Sharhu Macallati”l-Ahkâm, I-IV, İstanbul 1330.

Barkan, Ömer Lütfi, Ottoman Legal Codes (XV. Ve XVI. Asırlarda Osmanlı İmparatorluğunda Ziraî Ekonominin Hukukî Ve Malî Esasları), İstanbul 1943.

Bayındır, Abdülaziz, Islamic Judgment Law -Ottoman Practice- (İslâm Muhâkeme Hukuku -Osmanlı Devri Uygulaması-), Istanbul, 1986.

Bilmen, Ömer Nasuhi, Lexicon of Islamic Legislation (Hukûk-ı İslâmiyye Ve Istılâhat-ı Fıkhiyye Kâmusu), l-VIII, Istanbul 1967-1970.

BOA, Ottoman Archives.

Dabbaghzadah, Nu’man Effendi, Jami’us-Saq, Dersaadah, 1214, 288-291, 298-310, 312, 335;

Damad, Şeyh-zâde, Mecma ül-Enhür Şerhu Mültek”al-Ebhur, I-II, İstanbul, 1331.

Dustur (Legal Code), I. Clas. (I. Tertip: 8 volumes, 1289-1320/24).

Ergin, Osman Nuri, Majallah al-Umur (Mecelle-i Umûr-i Belediye) I-V, Istanbul, 1338.

Ergüney, Hilmi, Lexicons and Terms in Turkish Legislation (Türk Hukuk Lügati), Istanbul, 1973.

Hezarfen Huseyin Efendi, Talhis’al-Beyan (Telhis”ül Beyan Fî Kavanin-i Al-i Osman), Paris Bibliotique Nationale.

Huqqam al-Shar’ and Me’murin al-Shar’iyyah Qanun al-Muwaqqah dated 1331.

Instruction about the Journals titled Sijillât al-Shar’iyyah and Zabt al-Deawi dated 15 Dhilhijjah 1290.

Instruction dated 1290 defining the tasks of Majlis al-Tadqiqah al-Shar’iyyah.

Instruction dated 1300/1882 concerning appealing those verdicts issued by Shariah Courts.

Interim Law dated 1332.

Istanbul’s Office of Mufti, Archives of Shariah Records.

Jurjani, Sayyid Sharif, Al-Ta’rifat, Egypt 1938.

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Karakoc, Serkiz, Ottoman Legal Codes with Interpretations (Tahşiyeli Kavânîn), I-II, Dersaadet, 1330.

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Order of Shariah Deeds (Senedât al-Shar’iyyah) dated 1296.

Regulation dated 1296.

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The Imperial Rescript dated 1279/1880 concerning the Appeal of Verdicts of the Shariah Court.

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The Regulation dated 1284 under the title of Nizamnamah al-Shura al-Dawlah.

The Regulation dated 1284 with the title of Nizamnamah al-Diwan al-Ahqam al-Adliyyah.

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The Yearbook of Savants (Salnamah al-Ilmiyyah), İlmiye Salnâmesi, İstanbul, 1334.

Uzuncarşılı, Hierarchy of Savants (Ilmiyyah), (Osmanlı Devletinin İlmiye Teşkilatı), Ankara, 1984

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———————————————————-
[1] Hezarfen, Talhis’al-Beyan, Doc. 135/A et seq.; Ergin, Majallah al-Umur, I/265 et seq.; Zeydan, Nizam al-Qadha, 117-120; Uzunçarşılı, The Organization of Savants (Tashqilat al-Ilmiyyah), 108 et seq.

[2] Hezarfen, Talhis’al-Beyan, Doc. 133/B et seq.; The Legislation of Tavqiî, MTM, I/541.

[3] Ali Haydar, Dürer, IV/715-716; Ilmiyyah Yearbook, 140-152; Uzunçarşılı, Ilmiyyah, 208 et seq.; Krfl. Mumcu/ Üçok, 222-226.

[4] Hezarfen, Talhis’al-Beyan, Doc. 139/B et seq.

[5] Tawqii Legislation, MTM, I/540; Uzunçarşılı, Ilmiyyah, 155 et seq.; Central Organization, 228-241.

[6] Tawqii Legislation, MTM, I/508-509, 540.

[7] Tawqii Legislation, MTM, I/501-503, 540.

[8] The Conqueror’s Legislation, 16.

[9] Regulations titled Nizamnamah al-Tawjihat al-Manasib al-Qadha dated 1271, Code: I. Zir. I/315-320; Huqqam al-Shar’ and Me’murin al-Şhar’iyyah Qanun al-Muwaqqah dated 1331, Code: II. Ter. V/352 et seq. Article: 6.7; Interim Law dated 1332, Code: II. Ter. VI/184; Ali Haydar, Dürer, IV/705; The Yearbook of Savants (Salnamah al-Ilmiyyah), 154, 318; Uzunçarşılı, Ilmiyyah, 160 et seq.

[10] Majallah, md. 1784-I785; Ali Haydar, Dürer, IV/657 et seq.

[11] Akgündüz, The Records of the Shariah Board, v. I, Istanbul 1988.

[12] Tawqii Legislation, MTM, I/541; The Legislators’s Legal Codes, MTM, 1/326-327; Uzunçarşılı, Ilmiyyah, 83 et seq.

[13] Abdurrahman Şeref, Talks on History, Istanbul 1934, pg. 48; Okandan, I/60-61.

[14] Ergin, Majallah al-Umur, 1/273-274.

[15] Code: I. Ter. I/4-7.

[16] The Regulation dated 1284 with the title of Nizamnamah al-Diwan al-Ahqam al-Adliyyah, Code: I. Ter. I/325 et seq:, Article-2; The Regulation dated 1284 under the title of Nizamnamah al-Shura al-Dawlah, Code: I. Ter. I/703 et seq.

[17] Düstur (Legal Code), I. Ter. I/328 et seq.

[18] Düstur (Legal Code), I. Ter. I/342 et seq., 349 et seq.

[19] Düstur (Legal Code), I. Ter. I/352 et seq., Article-4 et seq.; Ergin, Majallah al-Umur, I/273.

[20] Instruction dated 1290 defining the tasks of Majlis al-Tadqiqah al-Shar’iyyah, Code: I. Ter. IV/73-75 and particularly Article-l, -7.

[21] The Fatawahanah Regulation dated 1292, Code: I. Ter. IV/76-77; The Imperial Rescript dated 1279/1880 concerning the Appeal of Verdicts of the Shariah Court, Code: I. Ter. Zeyl, 1/2; Karakoç Tahfliyeli Kavanin, I/10-12; Instruction dated 1300/1882 concerning appealing those verdicts issued by Shariah Courts, Code: I. Ter. 7˛yl. III/58; Karakoç Tahfliyeli Kavanin, I/12-14.

[22] Karakoç, Tahfliyeli Kavanin, I/4-5; Code: II. Ter. V/352 et seq.; Yearbook of Savants, 674 et seq.; Uzuncarşılı, Hierarchy of Savants (Ilmiyyah), 267 et seq.

[23] Yearbook of Savants, 652 et seq.

[24] Taqwim al-Waqa’i (The first Ottoman Official Gazzette), No: 2840; Karakoç, Tahfliyeli Kavanin, 1/6-7, 29 et seq.; Ergin, Majallah al-Umur, 1/274-275.

[25] Taqwim al-Waqa’i No: 3046 3847; Karakoç, Tahfliyeli Kavanin, I/6-7, 29 et seq.; Official Gazzette ; No: 69, Code No: 469.

[26] Kanun-i Cedîd, The Journal of National Researches (Milli Tetebbular Mecmuası), I/326.

[27] Akgündüz, Ahmed, Ottoman Legal Codes (Osmanli Kanunnâmeleri), v.I, ; Kanun-i Cedîd, The Journal of National Researches (Milli Tetebbular Mecmuası), II/541, The Süleymaniye Library, Turhan Valide Sultan, Nr. 326, p. 155/a.

[28] Kanunnâme (Ottoman Legal Code), Istanbul University Library, Turkish Scripts, Nr. 1807, p. 68/a-b.

[29] Akgündüz, Ahmed, Ottoman Legal Codes (Osmanli Kanunnâmeleri), v.II.

[30] Akgündüz, Ahmed/ Research Board for Turkish World, Shar’iyyah Records, Istanbul 1989, I/13 et seq.; Krş. Barkan, Legal Codes, I-XXXIII

[31] Akgündüz/ Board, Shar’iyyah Records, I/221-253

[32] Akgündüz/ Board, Shar’iyyah Records, S/259-303

[33] Akgündüz/ Board, Shar’iyyah Records, I/311-352

[34] Akgündüz/ Board, Shar’iyyah Records, II/10 et seq.

[35] Dabbaghzadah, Nu’man Effendi, Jami’us-Saq, Dersaadah, 1214, 288-291, 298-310, 312, 335; Akgündüz/ Board, Shar’iyyah Records, I/14-15, II/100 et seq.

[36] Jurjani, Sayyid Sharif, Al-Ta’rifah, Egypt 1938, pg. 282; Al-Fatawah al-Hindiyyah, v. 6, pg. 160 et seq. Damad, Majma al- Anhur, 2/559

[37] Al-Fatawah al-Hindıye, 6/160 et seq.; Damad 2/559.

[38] Al-Munjid, 17. print, pg. 1 39; Mutarjim Asım, Qamus al-Okyanus, v. 2, pg. 262; Ali Haydar, Dürerü”l-Hükkam, 4/718.

[39] Al-Munjid, 322; Bayındır, 1; Instruction about the Journals titled Sijillah al-Shar’iyyah and Zabt al-Deawi dated 15 Dhilhijjah 1290, Article: 1 et seq.; Document: 1. Ter. v. 4, pgs. 83-85; Majallah, Article: 1814; Uzunçarşılı, The Savants’ Organization (Tashqilah al-Ilmiyyah), 116

[40] Majallah, Article: 1814; Ali Haydar , Dürer, 4/717, 720; Yaman, Ülkü, 154; Uzunçarşılı. Ülkü, 366; The Savants’ Organization, 116.

[41] Fatawah al-Hindiyyah, 6/160 et seq.; Bayındır, 1-2

[42] Süleymaniye Library, Laleli, No 93; The second book we often mention was printed in Istanbul in 1214; the third work 37 was printed in Istanbul in 1288.

[43] Istanbul’s Office of Mufti, Archives of Shariah Records; Bayındır, 2, 273-281; Ali Haydar, 4/71 et seq.,; IS 1-334/11-12; Uluborlu Shar’iyyah Record No A 27 (Konya Museum)

[44] Konya Museum, Isparta E 27, pg. 100-101; Debbaghzadah, 402 et seq., 380 et seq.

[45] Ali Haydar, Dürer, 4/717 et seq.; Bayındır, 2

[46] Ali Haydar, Dürer, 4/718; IS1-65, 76, 97 .106, 135, 334, Ü6-802 (Books of Orders and Rescripts); Kasımpaşa U6-465 (Petitions); Bayındır, 273 et seq.

[47] Document, 1. Ter, v. 1, pg. 301-3l4, especially see Article: 29-53;­ Document, 1. Ter, v. 4. pg. 83-85; Order of Shariah Records dated 1290, Article: 5-18, Doc. 1 T. 4/83-85.

[48] Akgündüz, Ahmet, the Compared Collection of Islamic and Ottoman Legal Codes, Diyarbakır 1986, pg. 774-782; Doc. 1. Ter 4/79-84; BOA, Manner of File. Private File of Majallah, No. 517. Ali Haydar Dürer, 4/719, 81 et seq.

 

[49] For instance see Uzunçarşılı, Learned Men’s Association (Tasqilah al-Ilmiyyah), 108

[50] Majallah, Article: 1676; Ali Haydar, Dürer, 4/367, 718; Bilmen, Lexicon of Islamic Legislation, 8/118; Krş: Uzunçarşılı, Learned Men’s Association, 108; Bayındır, 12; Regulations for Shariah Courts dated 1276, Article: 15 et seq., 27 et seq.; Order of Shariah Deeds (Senedah al-Shariah) dated 1296, Article: 16 et seq.

[51] Ali Haydar, 4/718-719.

[52] Ali Haydar, Dürer. 4/718-719; Bayındır, 12 et seq.

[53] Debbaghzade, 3-188, 160 et seq.; B23-127/137, 141-142; B23-127/118; Uzunçarşılı, 116-117 55­ Doc. l. Ter., I/301 et seq.

[54] Doc. l. Ter. 4/83-85; Doc. 1. Ter. 4/78-82.

[55] B23-1271114

[56] Debbaghzade, 3-188; 61. Ali Haydar, Dürer, 4/718, Bayındır, 12 et seq.

[57] Akgündüz,Ahmet, The Institution of Foundations in Islamic Legislation and the Ottoman Practice, Diyarbakır 1986; ­The Regulations for Shariah Courts dated 1276 Art. 15-20; Debbaghzade, 189-220; Konya Museum, Burdur’s Shar’iyyah Records Şer”iye Sicilleri, F25, sh. 214

[58] Konya Museum, Burdur F25/214; For examples of Waqfiyyahs see Debbaghzade, 189 et seq.

[59] The Regulation for Shariah Courts dated 1276, Art. 27 “Shar’iyyah decrees consisting of decrees”; Ali Haydar, Dürer, 4/718; Majallah, Art. 1827; Bayındır, 3; Uzunçarşılı, Learned Men’s Association (Tashqilah al-Ilmiyyah), 108; Debbaghzade, 223 et seq.; Majallah, Art. 1827; Ali Haydar, Dürer, 764-768; Regulation dated 1296, Art. 12; Regulation dated 1296, Art. 13-25.

[60] Regulation dated 1296, Art. 15: Ali Haydar, Dürer, 4/718; Debbaghzade, 380 et seq.; Bayındır, 3-4, 231; Shar’iyyah Records Archives of Istanbul’s Office Mufti, The Book of Application Seals, No 7, Doc. 4b

[61] Ali Haydar, Dürer, 4/769; Bayındır, 4-7; Mahqamah al-Bab (a certain lower court in Istanbul), 2-96137, 65, 125

[62] Ali Haydar, Dürer, 4/868-869: Bayındır, 7 et seq.

[63] Bayındır, 9, 181 et seq.; IS 1-334/11-12; Ali Haydar, Dürer, 4/869.

[64] Ali Haydar, Dürer, 4/769-770; Debbaghzade, 252, 253, 255; Ali Haydar, 4/770; Majallah, Art. 1786; Ali Haydar: 4/659-662.

[65] The Legal Codes of the Ottomans, Supplements of the Magazin of the Council of the Ottoman History, Istanbul 1330, pgs. 70-72; Deb­baghzade, 223-340; B23-1271104; Ergüney, Hilmi, Lexicons and Terms in Turkish Legislation, Istanbul, 1973, 218; Bayındır, 18 et seq.

[66] Bayındır, 11; Judicial Decrees in the Record Book no. B23-127, IS-BAB, 2-88/50a

[67] The Legal Codes of Muhammad the Conqueror, The Supplements of the Magazine of the Committee for the History of the Ottomans, pgs. 70-72; Bayındır, 18 et seq.; lSl-25/1 et seq.; Kasımpaşa, 3-93/1 et seq.; Debbaghzâde, 223-339, 341-370.

[68] Debbaghzade, 341-370

[69] Court of Hasköy 19-9/39; Bayındır, 19, 254

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