The economics of Ottoman justice : settlement and trial in the Sharia courts

  • Book Title:
 The Economics Of Ottoman Justice
  • Book Author:
Metin Cosgel
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This book studies legal practice in the Ottoman Empire. Using the court records (sing. sicil) of the provincial town of Kastamonu, located on the Black Sea coast in Anatolia, we investigate the legal interactions of gender, religious, and socioeconomic groups during the late seventeenth and eighteenth centuries, a period of major social and economic transformation.

We combine insights from the “Law and Economics” literature with methods of historical and quantitative analysis to examine the functions of the court, and the way these functions changed over time, in this highly stratified provincial setting.

In recent years, historians of the Ottoman Empire have shown renewed interest in the seventeenth and eighteenth centuries, a period traditionally described as one of decline and degeneration. Historians now recognize it instead as an era of major socioeconomic and political transformation.

The Ottoman state endured intense financial pressures in this age, mainly as a consequence of long years of warfare with powerful adversaries, changes in the technologies of warfare, escalating demographic pressures, and new international economic and monetary trends. At the same time, the empire experienced major fiscal and economic developments as short- and long-term tax-farming arrangements replaced traditional forms of prebendal revenue extraction, which accompanied the emergence of a money- and market-based economy in various Ottoman domains.

In the center of the empire, new oligarchic structures diluted the sultanic absolutism of the earlier periods and contributed to the materialization of a relatively pluralistic system of governance. In the provinces, local notables took advantage of the new fiscal and economic opportunities by investing in tax-farming arrangements and commercial ventures, integrated themselves into provincial administration, and became influential in local decision-making. Historians now agree that these changes may have caused the reshaping of socioeconomic relationships in Ottoman society.

Although academic interest in Ottoman law and legal practice has grown recently, this scholarship has lagged behind economic and political historiography in producing a comprehensive portrait of the post-classical age (ca. 1600–1800).

Thus far, legal research on the period has concentrated on jurisprudential issues, such as the supposed decline of state law (kanun), after the sixteenth century as representative of fundamental changes in the state’s legislative practices.1

Historians have also examined shifts in judicial organization, legal procedures, and law enforcement.2 However, we still know too little about the court’s operations and services to identify how the legal practice and the functions of the court changed during this period. This is one of the main objectives of the present study.

At the same time, we examine the dynamics of group relationships and experiences among court clients. In this regard, one of our main concerns is to produce a research framework that can identify group interactions in court. Until now, few studies in Ottoman legal history have attempted to characterize how court clients, as representatives of socioeconomic groups, participated in legal processes.

To the contrary, most studies tend to focus on the individual court clients in isolation and make little attempt to analyze their experiences as members of a group. This tendency undermines our ability to identify the role of the court in regulating and reproducing class, gender, and religious relationships.

Methodological Considerations

The focus on the individual in the scholarship is related to the fact that court records provide limited information about the socioeconomic characteristics of court clients. While we can distinguish male clients from females and Muslims from non-Muslims, it is not easy to differ- entiate wealthy and socially prominent parties from the poor and under- privileged.

To generalize about group experiences in court, we thus need to ascertain the socioeconomic characteristics of court clients based on indirect indicators found in the court records. This is precisely what we do in this book.

We use honorific titles, religious markers, and family associations as indicators of socioeconomic prominence. This effort, justifiable based on the information available in the archival sources (see Chapter 2), provides us the tools of analysis for a group-based exploration of legal practice and the court’s activities in the Ottoman context.

From a historiographical perspective, our concern with group interac- tions finds its roots in our desire to further shift the focal point in Ottoman legal research from the institution of the court and its legal-administrative functions to the clients of the court and their socio-legal affairs.

While the body of the court and its place in the Ottoman provincial administration have received significant attention in the Ottoman scholarship, a tradi- tionally state-centric field, it is only recently that historians have become seriously interested in provincial peoples as legal agents and have explored the court’s archive to understand their legal concerns, thought processes, and activities (Rubin 2011; Agmon 2006; Peirce 2003; Ergene 2003, 2010). We contribute to this latter orientation by proposing a novel approach that allows us to consider legal practice according to the gender, religion, and class characteristics of court clients.

This book makes two important methodological contributions to Ottoman legal studies. First, it offers a sophisticated quantitative approach for ana- lyzing the legal information found in Ottoman court records. In this sense it represents both a continuation of and a break from earlier research based on sicils. Quantitative approaches to Ottoman court records have a long history, though most quantitative studies of Ottoman sicils have focused on the economic information found in court registers, rather than the legal information.

Additionally, because such studies often lacked historically grounded understandings of the institution of the court and the legal-scribal processes that produced the court records, their conclusions were often simplistic, reflecting uncritical acceptance of the data contained in those records.

Since the mid-1990s, under the influence of the so-called cultural turn in the social sciences and humanities, we have witnessed the emergence of an orientation in sicil-based research toward the textual and rhetorical characteristics of court records (Agmon 2004b, 2006).

This shift has generated a new and critical appreciation of the way institutional struc- tures and socio-legal practices have shaped the production of the court’s archival documents. It has also raised awareness of the limits of the information contained in court records as well as doubts about its relia- bility. As more sicil specialists have come to question the dependability of court records for empirically grounded research, so has the methodology used in earlier studies come under increasing criticism.

Although research- ers have not completely lost the temptation to use the Ottoman court records as bases of empirical information, quantifiable or not, more sicil specialists now doubt these documents as reliable sources for research.

The present study harks back to the earlier trend in sicil-based research in that it adopts an explicitly empirical, quantitative approach to glean infor- mation about legal practice. As we explain in the first chapter, we consider quantitative techniques useful because they allow us to identify patterns and tendencies that may not be visible otherwise and to test our hypotheses with statistical precision. At the same time, our study represents a metho- dological break with earlier quantitative research on sicils because we use rigorous techniques that are designed specifically for our sources’ unique legal, contextual, and linguistic characteristics. In other words, the quanti- tative approach proposed in this book is informed by the insights of the cultural turn.

 In this sense, the book aims to combine the strengths of two generations of sicil-based scholarship while avoiding the pitfalls that each is susceptible to. The first chapter provides a comprehensive defense of our methodological choices in conversation with existing discussions on the validity of different approaches to Ottoman court records.3

A second methodological distinction of our study is its employment of analytical tools associated with the discipline of economics. More specifi- cally, we engage the Law and Economics scholarship, as developed in Western, especially North American, legal research, in our efforts to inter- pret the information found in Ottoman court records.

This scholarship, developed in the last century in a collaborative effort by economists, sociol- ogists, and legal researchers, has made important contributions to the analysis of dispute resolution by treating court clients as contextually situated rational actors who choose among legal actions based on the (monetary and non-monetary) costs and benefits of available alternatives. In this study, we explore how a number of key insights developed in the Law and Economics scholarship can help us better conceptualize dispute- resolution processes in the Ottoman context.

Adopting an economic approach to Ottoman legal research is not a conventional preference, given the established tendencies in this scholar- ship. We have made this choice based on our knowledge regarding the analytical sophistication that the conceptual tools associated with the Law and Economics scholarship has brought to Western legal research and with the confidence that they will likewise yield fresh interpretations in our own field.

This choice, however, should not be interpreted as a call to arms against more established approaches in Ottoman legal studies, or as a rejection of older methodologies. On the contrary, a successful applica- tion of economic concepts and approaches to Ottoman legal research requires a great deal of dialogue and cross-fertilization across disciplines.

For this reason, we not only engage the existing literature on Ottoman legal history, but also learn from anthropological research on modern Muslim societies. We are convinced that an inclusive and multidisciplin- ary orientation is necessary to successfully apply the Law and Economics methodology to the Ottoman context.

The research for this book is based on a detailed examination of the Kastamonu court’s archives from three  roughly ten-year periods: 1684–96, 1735–43, and 1781–90. This periodization reflects our objec- tive to identify temporal changes in the court’s functions and the ways in which different client groups utilized them. The court’s archives contain ample information on judicial and administrative processes in provincial contexts.

They also provide plentiful detail on the affairs and interactions of individuals from different segments of the society. While it is not clear how representative the records are in terms of reflecting major trends, tensions, and interactions among our population, a topic we return to in our discussion, the court’s archive nevertheless remains one of the most important sources for research on Ottoman social, economic, and legal

 history. This is especially the case for a small, secluded, provincial location such as Kastamonu, for which we lack the narrative sources that are usually available for larger and more important urban centers. Ottoman court records are also uniquely appropriate for the type of history that we aim to write: One that focuses on common men and women and seeks to characterize inter- and intra-class, -gender, and -confessional relation- ships through a systematic exploration of large numbers of observations. We provide a detailed discussion of our source base and its contents in Chapter 3.

The town of Kastamonu, located in north-central Anatolia, was a modest-sized town with a majority Turkish-speaking Muslim population during the seventeenth and eighteenth centuries (see Chapter 2). Although the town was the legal  and administrative center of the eponymous subprovince (sancak), it was relatively isolated, probably due to its dis- tance from principal military and courier road networks (Heywood 1978, 738).

As is the case for most small- to medium-sized townships in the Ottoman Empire, we do not know much the social, economic, and poli- tical characteristics of Kastamonu for our period. The court records indicate a relatively diverse spectrum of economic activities – including agriculture, animal husbandry, and wool, cotton cloth, and copperware production – though European travelers from the nineteenth century described a lethargic economic life in the town and the wider region.

Despite being a small town in the interior, Kastamonu is ideal for this study and is representative of the Ottoman periphery in general, because it does not have any extraordinary characteristics that could distort the analysis and bias the results.

Moreover, the town’s court records are quite complete for this period, making them an ideal source base for analysis. Finally, recent quantitative research (Ergene and Berker 2008; Ergene and Kaygun 2011, 2012; Ergene, Kaygun, and Cos¸gel 2013; Cos¸gel and Ergene 2011, 2012) on the socioeconomic groups of the town provides us with a valuable context in which to interpret our findings.

the plan of the book

The book is divided into four parts and ten chapters, excluding the introduction and conclusion. The first part opens with a methodological discussion (Chapter 1), in which we engage the existing debates on various approaches to the Ottoman court records and make a case for the quantitative methodology we adopt in this book. More specifically, we respond to criticisms directed at quantitative…

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