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The Rise of Sunnite-Hanafite Law School in the Ottoman Empire

Muhammad Ahmad Munir

Presented to Professor Ihsan Fazlioglu in partial fulfillment of a course on Intellectual History of the Ottoman Empire (1299-1773) ISLA 581

Abstract

In this paper I will discuss the role of the anaf madhhab in the Ottoman Empire and

what it meant precisely for it to be the official legal school of the ruling dynasty. Further, how

much it developed intellectually from the early period of establishment of the Ottoman Empire

to the middle of eighteenth century. I will argue about the central position of shaykh al-Islam

(an authoritative scholar directly appointed by the sultan) in the legal affairs of the state,

keeping in view that this role ensured the proper implementation of the principles of the legal

school adapted by the state. At the same time these scholars contributed to the existing

literature on anaf ul (jurisprudence) and positive law through their fatw. In other words

this paper deals with the Islamic intellectual legal history of the Ottoman Empire from the

early fourteenth century to the late eighteenth century.

Introduction

Hanafism had transformed itself into a set of doctrines that could be applied with a

minimum amount of judicial discretion by the sixteenth-century. By virtue of its role as the

official madhhab of the Ottoman Empire, the anafs had to take a stance with respect to the

non-anaf Sunni madhhabs after the Ottomans incorporated the Arab regions of the Islamic

world into their empire. As a general matter, the Ottomans continued to appoint non-anafs

as assistant judges, but subject to the supervision of a anaf judge. Their judgments were

generally respected by the Ottomans, but could not be enforced without a writ of execution

proceeding from the anaf judge. This gave the anaf judge an opportunity to review the

decisions of his lieutenants to confirm that they did not contradict any inviolable provisions of

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anaf law, this principle operated in a fashion similar to the contemporary concept of order

public.1

Royal patronage contributed significantly to the fortunes of some schools of law,

developments within a madhhab could, in turn, also position it well for official recognition.

Hanafism was able to play the role of an official madhhab under the Ottomans in part

because, between the 6th/12th centuries, anaf law had come to be increasingly standardized

with a relatively clear delineation of what opinions were to be deemed the most authoritative.

anaf works such as Ibrhm al-alabs (d. 956/1549) Multaq al-Abur and Muhammad

Shaykhzades (d. 1078/1667) commentary on it, the Majma al-Anhur, were especially influential

compendia of the standard doctrine in Ottoman lands. The existence of such handbooks made

it possible for the Ottomans to rationalize judicial administration in their realm, both by giving

official recognition to what the anaf legal circles had themselves come to see as their

authoritative norms and by stipulating that particular anaf doctrines be followed to the

exclusion of certain others. Significantly, some of the sultans decrees to this effect also made

their way into the anaf legal handbooks. This illustrates not only the symbiotic relationship

between Ottoman judicial practice and the anaf madhhab but also the fact that, even in an

age of taqld and standardized texts, the legal tradition continued to adapt itself to new

pressures and needs.2

Muhammad Qasim Zaman has raised this important question that how the

standardization of anaf doctrine under the Ottomans might compare with the career of

Hanafism elsewhere. For instance, the 11th/17th century Fatw lamgrya (often called al-

Fatw al-Hindiyya), produced under the patronage of the Mughal emperor Awrangzeb lamgr

(r. 1068-1118/1658-1707), had also south to rationalize judicial practice in Mughal India.3 Quite

apart from the question of its actual impact, it is worth noting that this compendium of anaf

norms gives extensive coverage to the broad range of juristic disagreement that the school

tradition had come to recognize by this time. This suggests not only that Mughal judges would

1 Mohammad Fadel, The Islamic School of Law: Evolution, Devolution, and Progress, Edited by Peri Bearman, Rudolph Peters, and Frank Vogel, , , , Journal of Islamic Studies 2009 20: 259-263. 2 Muhammad Qasim Zaman. The Islamic School of Law: Evolution, Devolution, and Progress. Islamic Law & Society 16, no. 1 (February 2009): 101-106. 3 Ibid., p. 103.

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have continued to enjoy considerable room for maneuver in drawing on their internally

variegated legal tradition but also that the standardization of anaf doctrine may have meant

somewhat different things in different contemporaneous regions.

Early Development of anaf School: 150-700

The anaf school of law arose as a distinct juristic movement in the first half of the

eighth century and became, in a short period of time, the largest school in terms of the

number of its members, its spread throughout the Islamic world, and its domination of the

legal machinery of the Abbasid caliphate. Though it bears the name of Ab anfa al Numn

ibn Thbit (d. 150/767), the school in fact owes its doctrine to his two disciples Ab Ysuf (d.

182/798) and Muammad ibn al-asan al-Shaybn (d. 189/805). They laid down the systematic

foundations for the work of later anafs. After them Zufur b. al-Hudhayl (d. 158/775) and

asan b. Ziyd al-Lulu (d. 204/819), the jurists associated with that circle, continued to study

and teach their masters legacy. They transmitted their works to the following generations,

collected some of their unpublished material, spread their opinions to new regions, especially

towards the eastern territories of the caliphate, applied the founders opinions to some new

problems (such as novel problems of endowment, waqf), and some of them tried to defend the

founders legacy by means of prophetic traditions and concepts of legal theory (ul al-fiqh),

which was its very nascent stage.4

In the eighth and ninth centuries, generally the law school (madhhab) was associated

with the rationalists (ahl al-ray), who advocated free legal reasoning not strictly bound by the

revealed texts. Although by the eighth century ray, a form of free reasoning, was largely

abandoned in favour of a more disciplined and text-bound reasoning, the Hanafis continued to

resort to similar methods of legal argument, notably istisn (juristic preference). By the

beginning of the tenth century, nearly 150 years after the death of Ab anfa, this type of

juristic activity changed and the post-eponym era entered a different stage. At this time the

first legal manuals (mukhtaar) and commentaries were written; the first qawid (the general

4 Eyyup Said Kaya, Continuity and Change in Islamic Law: The Concept of Madhhab and the Dimensions of Legal Disagreement in anaf Scholarship of the Tenth Century, In Peri Bearman, Rudolph Peters and Frank Vogel, eds., The Islamic School of Law: Evolution, Devolution, and Progress (Cambridge, Massachusetts: ILSP Harvard Law School, 2005), 26.

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principles and policies implicit in the anaf legacy) were deduced; prophetic tradition, to

which anaf juristic tradition referred as legal sources (masnd), were compiled; the first

theoretical legal works to cover the problems of Islamic Jurisprudence, vis. The literature of

ul al-fiqh, were written; jurists began to write on the problem of how to apply the anaf

juristic tradition, and how to evaluate and use it in legal reasoning;5 for the first time some

jurists were labeled as leaders of anaf scholars of their time; and circles (alaqa) of anaf

education that were to have such influence on later generations appeared. All these facts

indicate that the anaf school in the tenth century, when compared to its body in the

previous era, had gained a more distinct identity, a standardized positive law, a more

organized form of legal education and a hierarchical anaf legacy, whose elements were

classified according to the authoritativeness of their historical texts. In other words, in the

tenth century the anaf madhhab became institutionalized in the broad meaning of the term.

The later literature of anaf law confirms the significance of this period in many ways. In the

celebrated later anaf compendia al-Hidya and the Fatw of Qkhn, for instance, the

names most frequently cited, except for those of the masters, belong to this period.

Though the anaf school finally came to adopt the mainstream legal methodology and

philosophy, it did maintain peculiar characteristics such as its emphasis on the practical

aspects of the law. Particularly in the first three centuries of Islam, its followers, more than

any other school, were the chief authors and experts on formularies (shur), notarial

documents, and the profession and conduct of judgeship (adab al-qa).6

Having originated in Iraq, the anaf school was favoured by the first Abbsid caliphs.

It has always been well represented in its home country and in Syria. It spread early to the

East, to Khursn, Transoxania, and Afghnistn (where the present constitution gives official

recognition to the anaf doctrine), also to the Indian subcontinent, to Turkish Central Asia,

and to China. Numerous famous representatives of the school came from Khursn and

Transoxania. From the 5th/11th century until well into the time of the Mongols the family of

5 Al-Karkh is probably the first anaf author to write theoretically on how to evaluate anduse the anaf juristic traditioin. See Ab al-Hasan Ubaydullah b. al-Husayn al-Karkh, al-Risla f ul allat alayh madr fur al-anafya, In al-Dabs, Tass al-Naar wa Yalh Rislat al-Imm Ab al-asan al-Karkh f al-Ul (Misr: al-Matbaa al-Adabiyah, [1320]) 169-175. 6 Wael Hallaq, Hanafi Law School, In Encyclopedia of the Modern Middle East, vol. 2.

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the Ban Mza wielded political power in Bukhr as the hereditary chiefs (ras) of the anafs

in the town, with the title of adr. In Khursn, from the 3rd/9th century onwards, the anafs

developed a special law of irrigation, adapted to the system of canals there. In the Maghrib,

too, the anaf school had adherents alongside the Mliks during the first few centuries of

Islam, particularly in Africa under the Aghlabids; in Sicily they even predominated. Finally, the

anaf school became the favourite school of the Turkish Saljid rulers and of the Ottoman

Turks; it enjoyed the constant favour of the dynasty and exclusive official recognition in the

whole of the Ottoman Empire. As a legacy of former Ottoman rule, the anaf doctrine has

retained official status, as far as Islamic law has remained valid, even in those former Ottoman

provinces where the majority of the native Muslim population follows another school, e.g., in

Egypt, Sudan, Jordan, Israel, Lebanon, and Syria.

Among the well-known members of the anaf school in the older period, of whom

more or less considerable works have survived, are al-Khaf (d. 261/874), the court lawyer of

the caliph al-Muhtad, who wrote a handbook on waqf which has become a classic, a handbook

on the duties of the q , and a work on legal devices (iyal); al-aw (d. 321/933), a convert

from the Shfi school; kim Shahd (d. 334/945), who abbreviated the contents of the main

works of Shaybn in a book called al-Kf; Ab al-Layth al-Samarqand (d. 375/985), a fertile

writer on fiqh and other branches of religious sciences; and al-Qudr (d. 428/1036), upon

whose Mukhtaar later works draw a good deal. During this whole period there was in the

anaf school a strong tradition of producing books concerning the application of Islamic law

in practice. The Mabs of Shams al-Aimma al-Sarakhs (d. 483/1090), a commentary on the al-

Kf of kim Shahd, marks the transition to a more logical and systematic arrangement of the

subject-matter within each chapter; it was followed by the Badi al-ani of al-Ksn (d.

587/1191), which has a strictly systematic arrangement. These older works were, however,

ousted by later handbooks and their commentaries in a process common to all schools of

Islamic law. One of the most important of these is the Hidya of al-Marghnn (d. 593/1196; it

acquired numerous commentaries, and Burhn Dn Mamd al-Mabb (7th/13th century)

produced a synopsis of it which he called Wiqyat al-Riwya. For these authors, the works of

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Shaybn, known collectively as hir al-Riwya, remained authoritative; they are al-Mabs, al-

Jmi al-Kabr, al-Jmi al-Saghr, al-Siyar al-Kabr, al-Siyar al-Saghr, and al-Ziydt.7

anafsm in the Ottoman Lands

The Arabian people had adopted, by and large, the Sfi and anbal madhhib during a

time when the Ottomans appeared as a state at international fore, whereas the Berbers

adopted the Mlik madhhab. There were also marginal madhhib such as the Zayd, the Khrjs

(in Oman and East Africa), the Druze (prominent in Lebanon, Syria and Palestine) and Shiites of

Twelve Imams whose cliques, living scattered along the Muslim territories, were limited in

figures. The anaf madhhab had been adopted in the interland of the Seljukids and in two of

its Khanates, who came to Anatolia before the Ottomans. Within this madhhab, great jurists

appeared; influences of their significant works have still not faded away. Reasons why the

Seljukids adopted sunn Islam as a sect of creed and the anaf madhhab as a sect of

jurisprudence can be sought both in the social status quo of the era and in their religious and

political relations with the Abbasids. This Muslim Turk Gaguaz tribe remained under the

spiritual influence of the Abbasids and showed respect toward the Caliph until the Mongols

denounced their Caliphate. Political and religious movements towards the sunn Abbasids were

coming either from non-Muslim Mongols, the Crusaders, or non-sunn Muslim groups. These

attacks lead to great social turmoil and disarray in the Islamic world, which not only

threatened Muslim orthodoxy but also the very existence of Islam. Holding the view that

protection of the religion of Islam was contingent upon protection of Muslim orthodoxy, the

Seljukids dominated the faith of orthodoxy over the whole Muslim world, having been

convinced that this would only be possible if destructive sects and faiths were terminated.8

7 It is important to note here that later Ottoman jurists, mufts, judges and scholars benefited at a larger extent from this literature for their rulings, decisions, fatws, opinions, writings and explanations. These early writings were used as source books. But at the same time the Ottoman scholars and jurists compiled their own books based on these primary sources and later those books were considered source books for the Ottoman jurists. For the Hanaf qs in Anatolia and Rumelia, for the application of shara, two Islamic law books were chosen among the corpus of extremely rich anaf fiqh. The first one is Durar al-ukkm f Shar Ghurar al-Akm by Mull Khusrew (d. 1480). This book is most often cited work in the courts. This book has been translated into Turkish by Ahmed b. Al al-Ankarav. The second book, considered source book by the Ottomans as anaf law book, is Multaq al-Abur by Ibrhm al-alab (d. 1549). 8 Hayrettin Karaman, The Sectarian Preference in the Ottoman Jurisprudence, In The Great Ottoman Turkish Civilisation: Philosophy, Science and Institutions, Kemal Cicek ed. (Ankara: Yeni Tukeye, 2000), vol. 3, pp. 666-667.

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Holding the Caliphate in their hands, the Abbasids appointed Ab Ysuf (731-798) as

the chief q (judge) during this era of Hrn al-Rashd. In doing this, one can presume that

they regarded the anaf madhhab as an official madhhab, in a sense, as the chief judge,

generally, assigned jurists from the school and madhhab to which he belonged. The Seljukids

handed over this inheritance from the Abbasids and preserved it well. The following anecdote,

cited in the Ratu udr of Ravendi, which was written on Seljukian history, reflects

explicitly the ties of the state with the anaf madhhab:

While the Great Imam (that is, Ab anfa) was imploring before Allh in Mecca during

his final pilgrimage, he is reported to have said this: O my Lord, should my interpretation

(ijtihd) be true and my madhhab be right then help me; Hence, I confirmed the shara of

Muhammad for Thee. A whispering voice replied to him: Thou uttered the truth, no harm is

there for thy sect as long as the sword is in the hands of Turks. After nothing down the

succession of the adth-i Quds (heavenly tradition), Ravendi went on saying: I thank the All-

Mighty that the back of Islam is strong and happy are the followers of the anaf madhhab and

the sword is in the hands of the Turks in the Arabian, Iranian, Greek and Russian territories.

The Seljuk Sultans guarded the anaf savants so much that their affection is eternal in the

hearts of the young and the old.9 As far as historical records are concerned, the Seljukids,

starting from the Tugrul Beg era onward, appointed judges from mostly the anaf madhhab.

The Ottoman shared close-knit ties with the Seljukids and societies living in their

homeland in terms of science and culture. Accordingly, the Ottoman savants educated not only

the scholars of Egypt, Syria and Iran, but also those coming from Central Asia, and utilized

their works, as well. As a result of historical, geographic and cultural relationships, it is no

wonder that the Ottomans embraced the anaf madhhab. So has been the case.

Shara and Qnn: The Basis for Legal Structure of the Ottoman Empire

The legal system in the Ottoman state was essentially based on Islamic law. At the same

time, the Ottomans made necessary changes and adjustments as needed in the legal structure

9 Ratus udr quoted from Hayrettin Karaman, The Sectarian Preference in the Ottoman Jurisprudence, In The Great Ottoman Turkish Civilisation: Philosophy, Science and Institutions, Kemal Cicek ed. (Aknara: Yeni Tukeye, 2000), vol. 3, p. 667.

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by keeping in view the broader boundaries of shara. Therefore, a supplement to shara was

made what was known as the qnn. Qnn often merely asserted the provisions of religious

law in an effort not only to place emphasis on such provisions but also to depict the sultanic

will as shara-minded. In these instances, the bid for legitimacy is unmistakable. But the qnn

did add to the religious law, especially in areas having to do with public order, the bedrock of

any successful regime. Public order was enforced by extra shara legislation pertaining to

highway robbery, theft, bodily injury, homicide, adultery and fornication (and accusation

thereof), usury, taxation, land tenure, and categorically all disturbers of the peace.10

To enact qnn, Ottoman sultans utilized the power granted to the head of the state to

enact laws based entirely on his own discretion. When these adjustments accomplished

through the individual fermns and decrees of the Ottoman sultans reached a considerably

large volume, they underwent a thorough evaluation which considered they way they had

emerged and were then given a separate name, orf (urf) law or qnn, in comparison to shar

law.11 Tursan Bey, after explaining the shar law, describes the orf law as if this measure does

not take the indicated form and instead relies solely on rationality for example as with Chengiz

Khan to create a worldly order, then it is called siyset-i suln or yasag-i pdishh based on the

authority establishing it. It has already become a custom to call it orf. Under his guidance, the

orf law has been defined as the law that emerged alongside the shar law through the sultans

commands and fermns. It is also called the orf- padisahi or orf-i sultani. The sakk, which

contains court records, is also divided into two as the shar and the qnn following this

dichotomy. The same dichotomy also existed in Ottoman tax laws as teklf-i sharye and teklf-i

orfye and rusm-i orfye.12

The way that the orf law was established, as explained above, differs from that of shar

law. As we know, the shar law is based on ijtihd practices by competent jurists within the

framework of ul al-fiqh based on the sources of Islamic law. The orf law on the other hand

merged, not through the scholarly work (ijtihd) of scholars, but through the qnns enacted

10 Wael Hallaq, Shara: Theory, Practice, Transformations (Cambridge: Cambridge University Press, 2009), p. 214. 11 Ekmeleddin Ihsanoglu, History of the Ottoman State, Society & Civilisation (Istanbul: Research Centre for Islamic History, Art, and Culture, 2001), vol. 1, p. 432. 12 Ibid., p. 433.

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by the sultans. This method was in practice even prior to Ottomans from example Yasa of

Chengiz Khan, Tuzukat of Timur, the Qnn of Uzun Hasan and of Alauddevle Bey, and the

Penal Code that was accepted by lamgr. The orf law slowly developed over a long period of

time as needed. The existing customs and the local conditions were taken into account when

these laws were made. Later on these farmans and orf laws were transformed into qnnnme

and it is argued that Mehmed II was the first Islamic ruler who issued such qnnnme.13 During

the reigns of Mehmed II, Bayezid II, Selim I, and Suleyman I, official qnnnmes were put into

effect. It is interesting to point out here that as these qnnnmes were necessary to be

consulted by qs before they adjudicate in their courts, great care was taken to inform the

public about these laws and to make copies of the qnnnmes available to the public at a low

price.14

In addition to the prevailing legal, political and administrative conditions, the

emergence of the orf law in addition to Islamic law in the Ottoman state was closely linked

with the way Islamic law developed. First of all, after the period of the first four caliphs, when

the Umayyads converted the caliphate into the sultanate and thus created a de-facto situation

in public law, and especially in constitutional law, the opportunity for putting into practice the

ijtihd of the Islamic jurists was lost. They shifted their emphasis to other areas where there

was a chance of application. As a result, Islamic law developed more in private law and in

certain aspects of public law, as compared with such areas as the basic organization of the

state and its administrative structure. We can follow this development in the classical fiqh

books. While these works contain large sections or marriage, divorce, inheritance, all kinds of

legal services, shar taxes such as zakt, ushr and crimes punishable by add and qi, they

give very limited information regarding the political and administrative structure of the state

as well as the way it was supposed to function. The fact that in these areas the Qurn and the

traditions of the Prophet contain prescriptions in the form of recommendations and general

principles rather than compulsory and detailed fundamentals must also have played a role in

this development. In addition, it is possible that the statesmen with political and

administrative knowledge and experience, who therefore considered themselves more 13 Ekmeleddin Ihsanoglu, History of the Ottoman State, Society & Civilisation (Istanbul: Research Centre for Islamic History, Art, and Culture, 2001), vol. 1, p. 435. 14 Ibid., p. 436.

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qualified to shape these areas, did not even want to consider the solutions offered by the

jurists. They did not want to let these Muslim jurists enter into these areas because they would

either be more theoretical or limit their authority. On the other hand, the fact that the

Ottomans had inherited a rich tradition of establishing and administering a state from the

previous Turkish states also played a certain role in the development of public law. Due to

these reasons, public law was formed according to the provisions of the orf law, which was

directly decreed by the sultan. In this process the Ottomans greatly benefited from the

political and administrative legacy of the Seljuk, Ilkhanid, and Abbasid states.15

There is a characteristic of Islamic legal texts in general and Hanafite texts in particular

that they have tendency to discuss cases which have no application in reality at the moment,

jurists often taking a rule and discussing its hypothetical ramifications in ever more minute

details.16 As a result, it seems as that there was no need for new ijtihd for a while. These legal

developments, together with the fact that at this time not as many great jurists emerged as in

earlier times, have led some scholars to an understanding that no new ijtihd was necessary or

possible. Naturally, this situation caused certain stagnation in Islamic law and, when there

actually was need for more ijtihd, the jurists appeared quite reluctant and usually distanced

themselves from it. The resulting vacuum encouraged the emergence of a new law that was

based on the orders and judgments of the statesmen upon careful consideration of the customs

as well as the current political and administrative events.17 Therefore, the qnnnmes or orf

law made their way into the Ottoman state affairs along with the shar law. Needless to say

that the fact that Islamic law, especially in the areas that it did not regulate in great detail,

granted the right to legislate to the head of the state, prepared the ground for the Ottoman

sultans to issue rules and regulations for centuries.

Wael Hallaq considers the application of qnn and shara through a single judicial

system the key to success for the application of qnn. In his words:

15 Ekmeleddin Ihsanoglu, History of the Ottoman State, Society & Civilisation (Istanbul: Research Centre for Islamic History, Art, and Culture, 2001), vol. 1, p. 437-8. 16 N.J. Coulson, A History of Islamic Law (Edinburgh: Edinburgh University Press, 1978), 5; Collin Imber, The Ottoman Empire, 1300-1650: The Structure of Power (Houndmills: Palgrave, 2002), p. 208. 17 N.J. Coulson, p. 5.

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What is striking about the qnn, and consistent with the Ottoman policy of allowing the

widest scope for Shara justice, is the fact that the q stood as the exclusive agent of the

qnns enforcement. On the ground, he was the ultimate administrator and final interpreter of

the qnn, which was unwavering in reiterating the decree that no punishment could be meted

out without a trial by a q; and indeed, evidence from court records overwhelmingly shows

that the decision to punish was exclusively the qs, and that the meting out of penalties was

normally the province of executive authority. The qnns decree, frequently restated in the

qnnnmes of several succeeding sultans, in effect constituted a direct prohibition against

conduct by government servants that might lead to injustice being inflicted upon the civilian

population. The qnn of Suleyman the Lawgiver, for example, states that the executive

officials shall not imprison nor injure any person without the cognizance of the [shara]

judge.18

Despite some qnns that are in conflict with the principles of shara, it was taken into

great consideration that orf law may not conflict with the shar law as much as possible. For

this reason the orf law was generally created in the realms which the shar law did not cover.

It was also in practice to send the qnn to Shaykh al-Islam for his review, if it appears in

conflict with shar rule. The practice of both laws by the same judicial institution, that is

instead of setting up separate courts for the orf law, applying the orf law through the shar

courts, played a positive role in the application of these two laws in a certain unity. This unity

of the shar and the orf law can also be seen in the naming of the sharat and qnn always

together in fermns and qnnnmes that date back to the sixteenth century.19

Sunni-anaf Law as State Madhhab

The process through which the Ottomans regarded the anaf madhhab as the official

language of the State occurred over a long period of time. Nonetheless, no sectarian clause had

been added to the certificates of the qs for the reason either that they were tolerated to

infer their judgments according to the ijtihd of other madhhib, or they were apparently

following the fundamentals of other sects in their judgments. It can be inferred from forensic

18 Wael Hallaq, Shara: Theory, Practice, Transformations (Cambridge: Cambridge University Press, 2009), p. 215-216. 19 Ekmeleddin Ihsanoglu, History of the Ottoman State, Society & Civilisation (Istanbul: Research Centre for Islamic History, Art, and Culture, 2001), vol. 1, p. 442.

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records that in this era, the anaf qs, by appointing his colleagues from the Shafi madhhab,

implemented, as well, the judgment adjudicated in accordance with this madhhab. From the

end of the 16th century, we observe that this period of tolerance came to an end, and even in

the certificates of q and mufts, a clause was inserted demanding that judgments be made in

accordance with the anaf madhhab and the most reliable ijtihd will be taken into account

when it comes to adjudicating and issuing fatwa. By the same token, adjudicating in accordance

with other sects was forbidden and implementation was vigilantly observed. One of the most

remarkable sources from which we survey such implementations is the Marzt of Ab Sud

Efendi (1492-1574), which consists of fatws enacted after presentation to the Padishah. In the

engagement section of the book, it is written explicitly that qs are obliged to judge

according to the aa-i aqwl, and since it is highly unlikely that the Shafi reside in these

territories, it is invalid to deliver judgments in accordance with the Shafi ijtihd and this has

been banned with a decree of the Sultan.20 Nevertheless, this prohibition had been confined to

the territories of Anatolia and Rumelia. Historical records indicate that in Mecca, Medina

Aleppo, Damascus, Jerusalem and Cairo, whose people were not adhering to the anaf

madhhab, it was allowed to judge in accordance with other madhhib.21

As mentioned above that at the time of establishment of the Ottoman state, the anaf

madhhab, brought by the Seljuks from Central Asia, was already well established in Anatolia.

Therefore it was the obvious choice for an official madhhab. The State appointed anaf qs

and at a certain moment began to instruct them to apply exclusively anaf doctrine. anaf

madhhab was the one that accepted some administrative practices without reservations.

Moreover, according to this madhhab, anaf qs especially if they are muqallids, must follow

the most authoritative opinion of the madhhab. If they do otherwise, their sentences are void.

To emphasize this point, a sultanic order was issued in 1537 to enjoin the qs in Anatolia and

the Balkans (Rm) not to follow Shafi opinions for certain purposes.22 Furthermore, the

20 Hayrettin Karaman, The Sectarian Preference in the Ottoman Jurisprudence, In The Great Ottoman Turkish Civilisation: Philosophy, Science and Institutions, Kemal Cicek ed. (Aknara: Yeni Tukeye, 2000), vol. 3, pp. 667-8 21 Ibid. 22 The purpose of having recourse to a Shfi q was to give a wife the right to demand a divorce on the ground that her husband was absent and had left her without means to support her. In Syria and Palestine, women would go in such cases to a Shfi mufti to obtain such a divorce. See Judith E. Tucker, In the House of the Law: Gender and Islamic Law in Ottoman Syria and Palestine, (Berkeley: University of California Press, 1998), 103.

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Ottoman sultans began to instruct qs, as mentioned above, when they were appointed that

they must adjudicate according to the most authoritative anaf views. The standard formula

used in the letters of appointment was:

() to adhere to enforcing the provisions of the laws of the Prophet and to applying divine

commands and interdictions, not to overstep the boundaries of the true Shara, properly to

follow in the questions that present itself the various opinions [transmitted] from Hanfi imams,

to find their most correct opinions (aa-i aqwl) and to act accordingly.23

The sultan, however, could decide for whatever reason to instruct the qadis with regard

to certain cases to follow not the prevailing view, but another, less authoritative opinion. In

the sixteenth century, there were already thirty-two of these orders. Many of them date from

the period of office of Ab Sud Efendi again.24 Sometimes such an order would just

corroborate an already existing preference of certain muftis for a specific opinion. Often,

however, the sultan, prompted no doubt by leading jurists, would introduce a change in the

legal system by enforcing a view that was regarded as weak and without authority. I will give

two examples, one in which the sultan corroborated an existing preference and one in which

the sultan abolished an authoritative opinion in favour of a weaker one.

In the Multaqa al-Abur the following statement is made regarding a marriage

concluded by a legally capable woman without the consent of her matrimonial guardian. The

authoritative rule, ascribed to Ab anfa, is that such a woman can validly contract her own

marriage and that her marriage guardian can demand rescission of the contract by the judge in

the event she has married herself to a person who is not her coequal (kuf):

Marriage concluded by a free woman of full legal capacity is valid. However, the marriage

guardian is entitled to oppose such a marriage if the husband is not her coequal. Al-Hasan b.

Ziyad [d. 204/819], however, has reported from the Imam Ab anfa that it is not valid and

Qkhn [d. 592/1196] has issued fatwas according to this opinion. According to Muhammad al-

23 Rudolph Peters, What Does it Mean to be an Official Madhhab? In The Islamic School of Law, pp. 151-2. 24 Colin Imber, Ebus-suud: The Islamic Legal Tradition (Edinburgh: Edinburgh University Press, 1997), pp. 107-109, 168-169.

Ahmad 14

Shaybani, such marriage is concluded conditionally [i.e., conditional on the guardians approval]

even if the husband is her coequal.25

The commentator Muhammad Shaykhzdah (d. 1078/1667) observes regarding the alternative

opinion of Ab anfa transmitted by al-asan b. Ziyd:

This opinion is more correct and cautious and therefore preferable for fatwas in our days because

not every matrimonial guardian is proficient in litigation and not every judge is just. Therefore it

is more appropriate to close this door, especially now that an order to that effect has been issued

by the Sultan and that he has instructed muftis to issue fatwas accordingly.26

According to Rudolph Peters this is not entirely accurate. The text of Ab Sud Efends

Marzt mentions that the sultan imposed an opinion of Muammad al-Shaybn, according to

which a legally capable woman may not conclude a valid marriage without her matrimonial

guardians consent, unless she does not have one. In that case, it is not required for her to

obtain the qs approval for concluding a valid marriage, unlike persons who are legally

incapable such as minors. That the sultan imposed al-Shaybns opinion rather than the

alternative view of Ab anfa transmitted by al-asan b. Ziyd must have had practical

reasons. According to the latter opinion, it must first be examined whether or not the

bridegroom is a coequal before the validity of the marriage can be established, whereas

according to al-Shaybn, no marriage is binding without the guardians consent. Although the

sultan did not follow precisely the opinion that the jurists preferred for giving fatws, he

evidently followed a trend among the jurists aimed at imposing greater familial control over

females.27

Another sultanic order dealt with the law of qasma (extra-judiciary oath, repeated 50 times).

When a body, with traces of violent death, is found on private property, the next of kin, after a

special procedure consisting of accusing the owner or inhabitants of the property and having

them swear a number of oaths, can demand the victims blood price from them. In this

connection, Ab anfa and Muhammad al-Shaybn hold that the owners solidarity group

25 Abd al-Ramn ibn. Muammad Shaykhzadah, Majma al-Anhur f Shar Multaq al-Abur (Istanbul: Matbah Uthmaniyah, 1909), vol. 1, pp. 320-1. 26 Ibid., p. 132 27 Rudolph, p. 153.

Ahmad 15

(qila) is liable, whereas according to Ab Ysufs view, the actual occupants (owners or

tenants) and not their solidarity groups must pay it. The latter opinion was weaker, according

to the formal rules, but socially more beneficial. For its enforcement would stimulate the

vigilance of the residents and their diligence in keeping their neighborhood safe, since they

themselves and not their solidarity groups were held liable. For that reason it was imposed by

a sultanic order.28 Other sultanic orders regarded the punishment of Muslims or Christians for

insulting the Prophet Muhammad, and the violation of price regulations for money lending

(via hlas).

Utilization of Hanafite Law in State Regulation

The Turks introduced and superimposed a new concept of state and law based on the

twin elements of strong, independent state-power and political action for the public good. The

traditions and beliefs current in the Turkish Empires of Central Asia supported the view that

the state subsisted through the maintenance of the toru or yasa, a code of law laid down

directly by the founding Qaghan. They thus identified political with legislative power. In Islam

the Turkish dynasties endeavored to create an independent public law in support of their

absolute political power. To this end they received the cooperation of Muslim legists who

reconciled the new concept of state according to such Islamic principles as malaa, public

good or urf, custom.29 In other words the sunnite-hanafite principles of Islamic law were more

suitable for the rulers to implement their policies towards stronger political control within the

realm of shara. Under the Caliphate the same principles were invoked to accommodate the

Caliphs administrative regulations within Islamic Law. Al-Mward, the famous Muslim jurist

(d. 1052) justified the necessity of secular power, kuwwa al-saltana, and the Sultans authority to

make qnns, as a means of ensuring the public good and implementing the shara, the Islamic

religious law itself. Now, with the Turkish dynasties, the concept of independent state law was

greatly strengthened. In the states founded by the Turks in Central Asia, Iran, Anatolia and

India, decrees issued by the rulers on matters of state organization, military affairs, taxes, land

tenure, and penal law created a rich corpus of state law entirely independent of the shara. In

28 Imber, 108-109. 29 Halil Inalcik, Essays in Ottoman History (Istanbul: Eren Yayincilik, 1998), p. 230

Ahmad 16

the same period, the revival of the Iranian political traditions strengthened this trend. Since

the first Turkish states in Islamic territory were founded in Iran, the native Iranian

bureaucracy in Turkish service became instrumental in this. In fact, this bureaucracy strove to

revive the old Iranian traditions vis--vis the Caliphate and the shara. Subsequently in the

states founded by the Turks in the Islamic world, the conflict between state law and the shara

overlaid a politico-social struggle among the bureaucracy, the ulama and the ruling military

class.30

The Ottoman state, an offspring of the Seljukid Empire, appears to have gone farther

than any previous Islamic state in asserting the independence of state affairs and public law

vis--vis the religious law. Mehmed the Conqueror (1444-1446, 1451-1481), the true founder of

the Ottoman Empire and promoter of a centralized and absolutist imperial system, further

strengthened the principles of the rulers legislative authority. Apparently he was the first

ruler in Islamic history to promulgate codes of law based exclusively on sultanic authority. A

contemporary Ottoman historian, Tursun Beg, interpreted the good order, nim, of this

world as necessarily requiring the absolute coercive authority of the sultan and particularly

the sultans right to promulgate decrees of his own single will. But the early years of his

successor Bayezid II (1481-1512) saw a strong reaction by the upholders of the Shara against

the Conquerors untrammeled legislative activity. Although Suleyman the Lawgiver was

inclined to assert the Sharas control over state law, it preserved its independence under him,

too. 31

anaf school is also characterized by its broader principles to allow the state to

introduce measures to cope with newly arising problems. For example, Ab Sd Efend, Shaykh

al-Islam of Suleyman the Lawgiver (1520-1566), regarded the use of money to establish a

religious endowment entirely acceptable to shara, whereas Memed Birgiv, his opponent,

regarded it as utterly illegal on the basis of the opinions of another school of law. Since the

economic conditions encouraged money endowments and their abolition would destroy many

already established charitable institutions, the state supported the Shaykh al-Islam on his stand.

Also it should be pointed out that reforms which proved to be of vital necessity for the

30 Ibid., 231. 31 Ibid.

Ahmad 17

existence of the Ottoman Empire, and, by interpretation, for the good order of the Islamic

community, were to be introduced only under broad principles of the anaf school by the

decision of the ruler.32

We can summarize that the reason why the Ottomans opted for the anaf madhhab

stems largely from the fact that, due to the influence of the Abbasid-Seljukian tradition, the

bulk of Ottoman people clung to this madhhab. The Ottoman agrarian policy and corollary

economic factors did not have an effect on this preference because the anaf ijtihd was at

odds with this policy. The fact that Ab Sd Efend pronounced that any tolerance shown in

this vein might be misused at such time, sheds light on the political-social reasons of

preferring a certain madhhab. One can infer that the rationale of insistence on the anaf

madhhab was due largely to a provision of the madhhab on the dethronement of the Sultan.

Hayrettin Karaman, in his chapter The Sectarian Preference in the Ottoman Jurisprudence

has claimed with reference to notable anaf jurist, Ekmluddn al-Bbart, (d. 786/1384), that

the preference of anaf madhhab was to protect the throne of sultan. He mentions about

Bbart that in one of his pamphlets wherein he defends the preference of the anaf madhhab,

mentions the dethronement of the Sultan as one of the reasons of such adoption and alludes

this example: If Sultan commits a grave sin or insists on committing a petty sin, can he be

dethroned or not? According to the anafs, he cannot be, whereas to the Shfi he can be. O,

agile and cautious ruler, would it be wjib (almost as compulsory as far and not to be omitted)

or not, to prefer this madhhab (the anaf) preferred by savants and rules in most parts of the

world both presently and in the past?33

Intellectual growth of Hanfite Law in the Ottoman State

Shaykh ul-Islam was the head of the ulama in the Ottoman Empire, appointed by royal

warrant and chosen until the sixteenth century from among the muderrises distinguished for

their learning. His duty was to issue fatws, that is to give written answers, based on standard

religious authorities, to any problem falling within the scope of the sharat. He received, on

32 Halil Inalcik, Essays in Ottoman History (Istanbul: Eren Yayincilik, 1998), pp. 231-232. 33 Hayrettin Karaman, The Sectarian Preference in the Ottoman Jurisprudence, In The Great Ottoman Turkish Civilisation: Philosophy, Science and Institutions, Kemal Cicek ed. (Aknara: Yeni Tukeye, 2000), vol. 3, p. 668.

Ahmad 18

principle, no fee for performing this duty. Anyone else of recognized religious authority could

issue fatwas and every important town or city in the empire had its mufti to perform this task.

These men formed a separate class under the shayk ul-Islam.34

The knnnme of Mehmed the Conqueror placed his rank on a level with that of the

grand vizier, and protocol required that he should receive the greater respect. Until the

second half of the sixteenth century the shaykh ul-Islams were not customarily deposed. As

representatives of the sharat they tried to act independently of the political authority. During

the course of the sixteenth century, as the sharat became increasingly dominant in affairs of

state, the influence of the shayk ul-Islams increased accordingly; but at the same time, and in

the same proportion, they became more dependent on the political authority. The shaykh ul-

Islams first taste of secular power came when he received control of the qadiships, an arm of

the executive firmly attached to the political authority. From this time onwards the power to

appoint qs earning more than forty akces daily, and qs with the rank of Mulla, passed

from the qadiaskars to the shaykh ul-Islam.35 Needless to say here again that these shaykh

ul-Islam were from anaf school and were looking after the proper implementation of sunni-

hanafite laws by the qs working under them. Being practicing hanafites their works

automatically reflect the propagation of Islam through sunni-hanafite legal lens. During the

process of transmission of knowledge the personality impact also shape minds of students.

Therefore, it can safely be said that in the Ottoman Empire Islamic education was also under

the influence of anaf thought.

Islamic education was one of the most important activities on which Ottoman sultans

emphasized. They did their best to bring the best scholars from all over the world and to

establish a central hub for disseminating education and creating knowledge. For this purpose

different medreses were set in the empire and Shaykh ul-Islam was declared their head. The

first Ottoman medrese was created in Iznik in 1331, when a converted church building was

assigned as a medrese to a famous scholar, Dvd al-Qayar. In later years, when an Ottoman

sultan wished to establish a new medrese, he would invite scholars from the old Anatolian

cultural centers such as Konya, Kaysari or Akasary, or from elsewhere in the Islamic world,

34 Halil Inalcik, The Ottoman Empire: The Classic Age 1300-1600 (London: Weidenfeld and Nicolson, 1975), p.171. 35 Ibid., p. 172.

Ahmad 19

from Persia, Turkestan Egypt or Syria. In the reign of Murad II, Al al-Dn of s (d. 1482) and

Fakhr al-Dn, who had been brought from Persia, enhanced the reputation of the rapidly

developing Ottoman medrese. Fakhr al-Dn studied in Iran and Turkey and settled in Edirne as

muderris and mufti under Mehmed I and Murad II. During the early period of Ottoman culture,

Ottoman ulama also travelled to Egypt, Persia or Turkestan to complete their education under

the great scholars of those lands. For the study of Quranic exegesis and jurisprudence they

went primarily to Egypt and Persia; Mehmed al-Fanr, Al al-Fanr, Shaykh Badr al-Dn and

others travelled to these countries.

Mehmed the Conqueror was grieved that he had no ulama in his great empire except

few like Mulla Khusrew (d. 1480) who was a scholar and jurist and later became shayk ul-

Islam under Murad II and Mehmed II and Hocazade. Therefore, after the conquest of Istanbul

he converted eight churches into medreses for eight famous scholars; and when, between 1463

and 1470, he built the Conquerors Mosque, established around it the eight famous medreses

known as Semniye and assign each one to a scholar. These institutions became the highest

ranking medreses at that time. Below them came the Darulhadis medrese which Murad II had

founded in Edirne, and below this the medreses which the earlier sultans had established in

Bursa. Beneath these royal foundations were those endowed by great men of state in these

three towns. The most famous of these were the medreses of Ali Pasha in Edirne, Shihabuddin

Pasha in Filibe, Mahmud Pasha in Istanbul, Eski Ali Pasha in Bursa and Ishak Bey in Uskup.

Ranking with these were the old medreses which had been founded in Anatolia before the

Ottomans.36 In these institutions great academic activities in the fields of Quran, adth, tafsr,

fiqh, ul, kalm, falsafa, mathematics, astronomy, linguistics and literature took place and

renowned scholars of Islamic world were produced here. To name some of these scholars other

than in the field of fiqh and jurisprudence: Qdzde al-Rm (d. after 1440), Fatallh Shirwn

(d. 1486), Al al-Dn Al al-Qshj (d. 1474), Muammad b. al-Ktib Snn al-Qunaw (d. 1524

ca.), Mram Celeb (d. 1525), Abd al-Al Birjand (d. 1525/26), Al al-Muwaqqit al-Rm al-

anaf (d. 1571) and Taq al-Dn al-Dimashq al-anaf (d. 1585).37

36 Ibid., pp. 167-168. 37 See for detailed biographical notes and works of these scholars in their respective fields: F. Jamil Ragep, Qzde al-Rm: al al-Dn Ms ibn Muammad ibn Mamd al-Rm, Thomas Hockey et al. (eds.), The

Ahmad 20

These scholars served in the Ottoman state as mufts, qs, muderrises in other medreses,

jurists and above all shaykh ul-Islam. Over the period of 300 years in the Ottoman history, in

the field of law and jurisprudence, much work was accomplished. The scholars wrote

commentaries, super commentaries, glosses and translated into different languages the works

of great scholars of early and medieval periods of Islamic law, particularly from anaf school

of law. This learning tradition later on had great impact on the state organization in the

Ottoman Empire. To highlight prominent works and their authors during that period, in the

following pages I will focus only on those shuykh al-Islam who, apart from their

administrative and juristic duties, were prolific in the field of Islamic law and jurisprudence.

Ibn Bazzz is an exception in this group as he did not serve as muft of the state, but I included

him because his works and interaction with Mull Fenr are of great importance for Sunnite-

Hanafite intellectual tradition of the Ottoman Empire.

1. Mull Fenr

Mull Shems al-Dn Muammad b. amza b. Muhammad al-Fenr (751-834/1350-1431),

known as Mulla Fenr, is considered as the first supreme muft (shaykh al-Islm) of the Ottoman

Empire. He was born in Bursa and his father is said to have been a pupil of the famous f

scholar adr al-Dn Qunaw (d. 672/1273-4). Having studied under some of the most

distinguished scholars of his age in Anatolia and Egypt, in 770/1368-9 he was appointed

teacher at the Manstir medrese in Bursa and the following year made q of this capital city.

The sources give no specific date for his appointment as muft, but it would seem that he

retained this office even after relinquishing the q -ship of Bursa to Mull Yegn in 822/1419-

20 in order to go on the pilgrimage, for we hear of no other individual with this title until after

his death in Rajab 834, when Fakhr al-Dn Ajem was appointed. According to some sources he

Biographical Encyclopedia of Astronomers, Springer Refernce. New York: Springer, 2007, p. 942; Ihsan Fazlioglu, Shirwn: Fatallh ibn Ab Yazd ibn Abd al-Azz ibn Ibrhm al-Shbarn al-Shirwn al-Shamh, Idem, pp. 1055-1056; Idem, Qshj: Ab al-Qsim Al al-Dn Al ibn Muammad Qushci-zde, Idem, pp. 946-948; Idem, Qunaw: Muammad ibn al-Ktib Snn al-Qunaw, Idem, pp. 945-946; Idem, Mram Celeb: Mamd ibn Qub al-Dn Muammad ibn Muammad ibn Ms Qzde, idem, pp. 788-789; Takanori Kusuba, Birjand: Abd al-Al ibn Muammad ibn usayn al-Birjand, idem, p. 127; Ihsan Fazlioglu, Al al-Muwaqqit: Muli al-Dn Muaf ibn Al al-Qusann al-Rm al-anaf al-Muwaqqit, idem, pp. 33-34; Idem, Taq al-Dn Ab Bakr Muammad ibn Zayn al-Dn Marf al-Dimashq al-anaf, idem, pp. 1122-1123; Ihsan Fazlioglu, The Samarqand Mathematical-Astronomical School: A Basis for Ottoman Philosophy and Science, Journal for the History of Arabic Science 2008, vol. 14: 3-68.

Ahmad 21

was assigned the office of muft by Murd II in 1424. He was buried in the courtyard of the

mosque which he built in Bursa.38

The most famous of his numerous works is the Ful al-badi, a compilation on the ul

al-fiqh. He wrote this book by combining al-Manr of Nasaf, Ul of Bazdaw, al-Mal of al-

Rz and Mukhtaar ibn jib. 30 year of his life were invested in this compilation. Among other

works of Mulla Fenr are tafsr of Srat al-Ftia titled Uyn al-Ayn, Talqt al Awil al-

Kashshf and Anmzaj al-Ulm. In the last work he has discussed the issues related to 100

different arts. On anaf fiqh he compiled different books; some of them are: Shar al-Fari al-

Sirjyah, Shar Talkh al-Jmi al-Kabr f al-Fur and Shar Fiqh al-Kadn. He wrote many other

books on different topics as well.

2. Ibn Bazzz

Hafiz al-Din bin Muhammad b. Muhammad al-Kurd, known as ibn Bazzz was a

contemporary of Mulla Fenr who came to Bursa and had many discussions with Mulla Fenr

on different issues including fiqh, jurisprudence, adth, tafsr and kalm. As mentioned earlier

that he was not working under state regulated system such as q or muft but being an

outstanding scholar of the time, his works contributed well towards the intellectual growth of

the Ottomans. He is famous for writing fatwa known as Fatwa al-Bazzzya. He also compiled a

well known biography of Imm Abu anfa, Manqib al-Imm al-Aam Ab anfa. We have

account of his another work Jmi al-Wajz which is available in the margins of Fatawa al-Hindiya.

Ibn Bazzz died in the year 827/1424 in the middle of the month Raman.

3. Mulla Khusrew

Fifteenth-century jurist and muft of the Ottoman state Mulla Khusrew left a

remarkable impact on intellectual history of the region. His name is Muhammad bin Farmuz

bin Al. His date of birth is not known but according to some sources he was born in a town

Krghin situated between Siws and okt. His father was a French man who embraced Islam.

This account is not believed to be true as according to Repp Mulla Khusrew signs his name in

38 R.C. Repp, The Mufti of Istanbul: A Study in the Development of the Ottoman Learned Hierarchy (London: Ithaca Press, 1986), pp. 73-98.

Ahmad 22

Durar-i Ghurar as Muhammad b. Farmuz b. Al which depicts that his grandfathers name was

Ali which is a Muslim name. He was a student of Burhn Dn aydar of Hert who was a pupil

of Taftzn. He went to Edirne and taught in Shh Malik medrese, he also taught in Shalab. He

became qaskar in 1429. He had very good relations with Mehmed II, therefore he resigned

from his post of qaskar and went with Mehmed II to Manisa. According to Repp this is not

consistent with the facts and he believes that Mulla Khusrew did not depart with Mehmed II

but apparently did not cut himself off from the good graces with him.39 Therefore, when

Mehmed II came back to his throne, Mulla Khusrew was appointed as a judge of Galata and

Uskadar. In 848/1444 he became q of Adrianople and later qaskar of Rumelia. He also

enjoyed teaching at the Aya ofya. On his return to Istanbul in 874/1469 by command of the

Suln, he became Shaykh ul-Islam and served there for almost 11 years. While some sources

claim that he became Shaykh ul-Islam in 1460 and remained until his death in 885/1480. His

body was taken to Bursa and buried in the court of the mosque founded by him. He also

founded a mosque in Istanbul, which bears his name.40

He was a famous jurist of the fifteenth century in the Ottoman empire who authored

many books and pamphlets, wrote commentaries and glosses on important texts. His two most

important works are Durar al-ukkm f Shar Ghurar al-Akm on the principles of Islamic

jurisprudence, written in 877-83/1473-7, and Mirqt al-Wul f Ilm Ul. From among

commentaries on ul texts, famous are: Shar al-Talw and Shar Ul al-Bazdaw. Other works

include Sha al-Mift, Mirt al-Ul fi Shar Mirqt al-Wul, shiyat al-Muawwal li-Taftzn,

shya Awil Tafsr Bayw and al-Risla f Tafsr Srat al-Anm.

4. Ibn Kaml or Kemlpshzde

Born in Edirne in the year 873/1468 Shams al-Dn Amad b. Sulaymn b. Kaml Psh

became one of the leading jurists of the Ottoman Empire in the sixteenth century. He reached

up to the rank of Shaykh ul-Islam. He started his early career as a siph; but when he realized

that the scholars are much more respected than any other professional, he decided to change

39 Ibid., p. 162. 40 For detailed sketch of his life and achievements including his active role in the state affairs related to judicial and religious concerns see Ibid., pp. 154-166; also see Encyclopaedia of Islam, 2nd edition, q.v. Fenr-Zde.

Ahmad 23

his profession and join scholarship. He became a pupil of Mull Luf who was very humble

muderris, at the Dr al-adth in Edirne. Upon completion of his education he was appointed as

muderris at the medrese of Al Beg in Edirne. Later he served in different medreses including

Taslk medrese, Isq Psh medrese and Sultan Byazd medrese. Sultan Selm I appointed him

as judge in Edirne and then qaskar of Anadolu. In the year 925/1519 he was dismissed, and

as per some other sources he resigned, from the post of qaskar. He then joined the medrese

of Byazd II, Dr al-adth at Edirne. Upon the death of Zenblli Al Efendi (932/1526) he was

appointed Shaykh al-Islm by Suleyman the Conqueror. He remained Shaykh al-Islam until his

death on 2 Shawwl 940/16 April 1534. He was buried in the zwiye of Mamd Celebi, outside

Edirne Kaps.41

Byazd II, becoming impressed from his literary works, commissioned him to write a

History of the Ottomans as the Turkish counterpart of Idrs Bidliss recently-commissioned

Hasht Bihisht. This history is named Tawrkh l-i Osmn. Presumably while still muderris at

Edirne, he wrote a Risla f Takfr al-Rawfi, demonstrating war against Shh Isml to be far

ayn. This risla is sometimes termed as Fatwa which is not correct. He was the most prolific

of the Ottoman jurists in the sixteenth century and authored around 200 works ranging from

Qurn, ul, kalm and falsafa to linguistics in Turkish, Arabic and Persian. A complete list of

his preserved works is available in many contemporary sources including Ktib Calabs Kashf

al-unn.

From among his famous work on fiqh and jurisprudence are Muhimmt al-Muft, a

collection of fatws; A shiya on some sections of the Hidya of al-Marghnn; Il al-Wiqya,

in this book he corrected Wiqya of Ubayd al-Mabb; al-Il, is his own Sharr to Il

al-Wiqya; A shiya on the Talw of al-Taftzn; Taghyr al-Tanq, corrections to the Tanq al-

Ul of Ubayd Allh al-Mabb; his own Shar to Taghyr al-Tanq; a Shar to al-Fari al-

Sirjiyya, of Sajwand. He also wrote tafsr but it remained incomplete, he was only able to

complete sras 1-38, 67, 78-9, 86, 89, 103.

41 For further details about his life and achievements see R.C. Repp, The Mufti of Istanbul: A Study in the Development of the Ottoman Learned Hierarchy (London: Ithaca Press, 1986), pp. 224-244.

Ahmad 24

5. Cw Zde

Cw Zde was another Shaykh ul-Islam of Ottoman Empire in the sixteenth century

who played his role in the development of sunni-hanafite madhhab. He was appointed in that

office in the year 1539 after the death of his predecessor Sad Efend. His name is Muyuddn

Shaykh Muammad b. Ilys. He studied with Mawla Sad Jalab ibn al-Tj and Mawla Bl al-

Aswad. He started his career as muderris and taught in medrese Amr al-Umar in Edirne,

medrese Vazr Amad Psha in Bursa, medrese Farydiya in Hazbura, medrese Mamd Psha

and medrese Samniye. He was appointed q of Cairo in 934/1527-8, qaskar of Anadolu in

944. He was dismissed from the office of Shaykh al-Islam with an allegation that he had given

an unsound fatw, the author of Shaqaiq al-Numniya presumes that the real reason was

probably his hostility to taawwuf.42 He became qaskar of Rumeli in 952/1545 in which office

he died in 954/1547.

He was fi of Qurn and had a great knowledge of fiqh, adth, tafsr and ul. In his

credit are some works including marginal notes on many books. He has a collection of fatwa

and there are in the various collections in the Suleymaniye Library of Istanbul several rislas,

attributed to Cvzde. Important from them, on the subject of fiqh are, Risla f al-udd wa-al-

Tazr, Risla f Waqf al-Darhim wa-al-Dannr al Rislat Ab al-Sd and Risla f al-Mas al al-

Khuffayn.

6. Ab al-Sud Efend

Ab al-Sud b. Muammad b. Muaf al-Imd (d. 982/1574), known as Khoja Celebi, was an

outstanding Ottoman jurist and scholar who, as qaskar and Shaykh al-Islm, made substantial

contributions to the practice of Ottoman law. His role as Shaykh ul-Islam proved a vital

substance in promoting the anaf madhhab in the state through courts. His father, Shaykh

Muy al-Dn al-Iskilb, was a close companion of Sultan Byezd II (r. 886918/14811512) and

became known as the Sultans shaykh: indeed Byazd built a zwiya for him in Istanbul which

became a centre for men of state and men of learning and thus an environment which gave

42 Amad bin Muaf ashkupr Zdah, Al-Shaqiq al-Numniyah f Ulam al-Dawlah al-Uthmnyah (Beirut: Dar al-Kitab al-Arabi, 1975), 446

Ahmad 25

Ab al-Sud links to both. His mother was the niece of the famed astronomer and

mathematician Al b. Muammad al-Qshj.

As his professional life, he was offered the post of muderris in Cankr medrese near

Ankara in 922/1516, by the qaskar of Anatolia, Kaml Pshazde, but refused it, no doubt

because the salary it carried (25 akce) was less than the allowance he was already receiving.

Shortly thereafter, he accepted appointment to the Isq Pasha medrese in Inegol near Bursa.

Later he joined the Dvd Pasha medrese in Istanbul with 40 akce (927/1521), then to the

Mamd Pasha medrese in Istanbul with 50 akce (928/15212). Afterwards he joined the Muft

medrese on the east side of the an-i thamn [Courtyard of the eight medreses], which Sultan

Memed II (r. 85586/145181) had founded as part of his mosque complex in Istanbul. In 1533

he was appointed as q of Bursa and he became q of Istanbul after only six months. In 1537

he became q askar of Rumeli, on the dismissal of Muy l-Dn Muammad al-Fenr.

Eight years later, on 22 Shabn 952/29 October 1545, he became Shaykh al-Islm again

succeeding al-Fenr. He held that post with great distinction for nearly thirty years, until his

death on 5 Jumd I 982/23 August 1574: his long, active, settled tenure of the office after a

turbulent period in its history, with an engaged and supportive sultan behind him, firmly

established it as the principal office in the learned hierarchy. It is an indication of the regard in

which he was held that when the ulam of Mecca and Medina heard of his death, they

performed the prayers for an absent person.

During his tenures as qaskar and Shaykh al-Islm, Ab l-Sud made substantial and

varied contributions to Ottoman law and more particularly to legal practice. One of his early

contributions as qaskar was essentially administrative, a series of measures rationalising the

procedures whereby students were accepted as candidates for appointment as muderrises or

qs. Colin Imber has demonstrated that by redefining Ottoman qnn on land tenure and

taxation in terms derived from anaf laws of property, he achieved a considerable

harmonisation in this major area of qnn. A main vehicle for this, his Law Book of Buda of 1541,

Ahmad 26

was later incorporated into the late-eleventh/seventeenth-century New Qnn and served as

the basis of land tenure until 1868.43

A second major achievement was Ab l-Sud's instigation as both qaskar and shaykh

al-Islm of a number of initiatives on ad hoc matters of law designed to regularise legal

practice. In this he acted essentially in partnership with Sultan Sulaymn, with whom he had a

close personal relationship, proposing changes that were then enacted by royal decree, many

of which impinged on the Shara. It has been persuasively argued that instrumental to this

practice was his consistent promotion, by means of the ascription of honorific titles to the

sultan through mediums such as the preface to the Law Book of Buda and the inscription over

the portal of Sulaymn's mosque, of a claim on Sulaymn's behalf to universal sovereignty and

in particular, to the office of caliph and thereby to some powers in the interpretation and

application of the law.44 This implicitly laid the basis for legitimising royal decrees as an

appropriate mechanism for regulating the interpretation and application of anaf law.

He was a prolific writer in the fields of tafsr and fiqh. He has a reasonable collection of his

fatwa, which he delivered time to time during his appointments as muft or Shaykh ul-Islam,

it is famous as Marzt [Submissions]. His famous work in tafsr is the Irshd al-Aql al-Salm,

written over a period of thirty years and completed in 973/1566. On anaf ul and fiqh he has

number of works and in addition to that his qnnnmes are famous for integration of sultanic

law with shar law. Ghamzat al-Mal f Awwal al-Mabith Qishr al-m min al-Talw; awqib al-

Anzr f Awil Manr al-Anwr; Khashm al-Khilf f al-Mas al al-Khufff; Risla f Waqf al-Ar wa

Ba al-Akm al-Waqf; Risla f Tashkl al-Awqf are famous for anaf interpretation of juristic as

well as legal matters.45

43 See for details, Colin Imber, Ebus-suud: The Islamic legal tradition, (Edinburgh: Edinburgh University Press, 1997), pp. 115-138. 44 Ibid. 45 See R.C. Repp, The Mufti of Istanbul: A Study in the Development of the Ottoman Learned Hierarchy (London: Ithaca Press, 1986), pp. 272-296.

Ahmad 27

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