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The Second Formation of Islamic Law pdf

The Second Formation of Islamic Law: The Hanafi School in the Early Modern Ottoman Empire

  • Book Title:
 The Second Formation Of Islamic Law
  • Book Author:
Guy Burak
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  • Acknowledgments page xi
  • Note on Transliteration and Dates xv
  • Introduction 1
  • The Madhhab 6
  • The Official Madhhab 10
  • The Official School of Law and the Imperial Legal Order 13
  • The Rise of an Ottoman Official Madhhab and the Grand Narratives of Islamic Legal History 17
  • Muftıﻼs 21
  • Muftıﻼ: A Very Brief Introduction 24
  • The Institution of the Muftıﻼin the Late Mamluk Sultanate 26
  • The Ottoman Perception of the Institution of the Muftıﻼ 38
  • The Emergence of the Provincial Muftıﻼand the Reorganization of the Muftıﻼship in the Ottoman
  • Province of Damascus 49
  • Al-NaﻺbulusıﻼResponds to al-H￵askafıﻼ(and an Imaginary
  • Dialogue with Al-Muraﻺdıﻼ) 58
  • Conclusion: The Ottoman Muftıﻼ, Kânûn, and the Ottoman H￵anafıﻼLegal School 62
  • Genealogies and Boundaries: Situating the Imperial Learned Hierarchy within the H￵anafıﻼJurisprudential
  • Tradition 65
  • Tabaqat: A Very Short Introduction 68
  • Early Stages: Kemâlpasazâde’s Risala fıTabaqat
  • al-Mujtahidın 71
  • Kınalızâde’s Tabaqat al-Hanafiyya 74
  • viii Contents
  • Mahmûd b. Süleymân Kefevî’s Kataʾib Aʿlam al-Akhyar
  • min Fuqahaﻺʿ Madhhab al-Nuʿmaﻺn al-Mukhtaﻺr 80
  • Edirneli Meh￱med Kâmî’s Mahamm al-Fuqahaﻺʾ 89
  • Recontextualizing Tasköprüzâde’s al-Shaqaʾiq al-Nuʿmaniyya 94
  • Concluding Remarks 99
  • Genealogies and Boundaries II: Two Responses from the
  • Arab Provinces of the Empire 101
  • Ibn T￳u﻽lu﻽n’s al-Ghuraf al-ʿAliyya fıTarajim Mutaʾakhkhirı
  • al-Hanafiyya 102
  • Taqiyy al-Dıﻼn al-Tamıﻼmıﻼ’s al-Tabaqat al-Saniyya fıTarajim
  • al-Hanafiyya 111
  • Concluding Remarks 118
  • Books of High Repute 122
  • A Methodological Note on Textual Canons and
  • Their Formation 127
  • “The Reliable Books”: The Imperial Hierarchy and Its
  • Canon Consciousness 130
  • A Case Study: The Integration of al-Ashbah wa’l-Nazaʾir
  • into the Ottoman Imperial Canon 135
  • The Transmission and Canonization of Texts Outside the
  • Ottoman Learned Hierarchy 139
  • Comparing Jurisprudential Canons 144
  • The Emergence of the Greater Syrian “Ottomanized”
  • Canon 155
  • A Damascene Critique of the Imperial Jurisprudential
  • Canon 157
  • Concluding Remarks 159
  • Intra-Madhhab Plurality and the Empire’s Legal Landscape 163
  • Using the Officially Appointed Muftıﻼs’ Rulings 166
  • Writing Ottoman Fatawaﻺin Arabic 181
  • Nonappointed Muftıﻼs and the Imperial Jurisprudential
  • Landscape 191
  • Establishing Authority 192
  • The Nonappointed Muftıﻼs’ Rulings 198
  • Concluding Remarks 204
  • Conclusion: The Second Formation of Islamic Law 207
  • Looking East: The Ottoman Case in a Comparative
  • Perspective 208
  • The Chinggisid Heritage 214
  • Situating the Post-Mongol Period in the Grand Narratives
  • of Islamic Legal History 220
  • Contents ix
  • Appendix A. The Classification of the Authorities of the
  • HanafıSchool 225
  • Appendix B. Kefevî’s Chains of Transmission 229
  • Appendix C. Minkârîzâde’s and al-Ramlı’s Bibliographies 231
  • Selected Bibliography 245
  • Index 267

The Second Formation of Islamic Law

The previous chapters have tried to reconstruct several interrelated debates between various H￵anafıﻼjurists who adhered to different understanding of the school of law and of the relations between the Ottoman dynasty and the jurists. These debates, which occurred in multiple sites and tem- poralities, assumed different forms. In some cases, they were amicable

exchanges, in others, fierce disputes. Taken together, these disagreements reveal some hitherto understudied doctrinal and institutional aspects of the Ottoman adoption of a particular branch of the H￵anafıﻼlegal school and of the notion of an official madhhab.

The Ottoman adoption of this particular branch within the madhhab was not merely an act of state patronage. It was an active intervention by the Ottoman dynasty in the structure of the school of law and its doc- trines. In this sense, the Ottoman adoption of the school was very different from the support that earlier Muslim sovereigns and dynasts extended to jurists and religious scholars.

 As we have seen in this study, the Ottoman adoption-development of an official madhhab was accompanied by the evolution of several institutional and administrative practices, such as the appointment of muftıﻼs and the development of an imperial learned hierarchy.

These new practices and institutions, in turn, were a product of and legitimized through Ottoman dynastic law (kânûn). In other words, the emergence of the Ottoman official madhhab depended to a consider- able extent on the existence of the notion of dynastic law.

As opposed to several studies that have tended to perceive Islamic and Ottoman dynastic laws as two independent legal-political discourses that had to be reconciled, this book argues that the emergence of the official madhhab calls for a more nuanced historicization of the relationship between the Ottoman notion of dynastic law and the pre-Ottoman (or, as I will suggest in the following discussion, pre-Mongol) notion of Islamic law.

My intention here is not to suggest that the emergence of the official school of law was instrumental. Nor am I implying that the jurists who were affiliated with the Ottoman dynasty participated in a cynical col- laboration. After all, the Ottoman dynasty invested enormous efforts in developing its learned hierarchy and engaged intensely in several Islamic discourses. At the same time, it seems to me necessary to account for the Ottoman commitment, at least to some degree, to their dynastic law.

It is precisely for this reason that the Ottoman case may assist us in further exploring some of the dynamics of what John Woods aptly describes as the era of “great experimentation and innovation in political thought, a time in which standard Sunni theories were subjected to the Turko-Mongol influences.”1

 In the following pages, I attempt to sit- uate the debates examined throughout this study within the context of the eastern Islamic lands in the post-Mongol period. This attempt is in many ways tentative and provisional, as the study of Islamic law in other parts of the eastern lands in that period is still in its embryonic stage. But there are several similarities between the imperial legal systems that merit attention and justify this exercise, and I hope that this comparison will encourage others to work with the framework I am proposing in this conclusion.

Be the case as it may, I am encouraged to pursue this line of inquiry by the fact that the study of the eastern Islamic lands in the post- Mongol period as a somewhat coherent unit has proven to be illuminat- ing in numerous other issues and disciplines, such as political thought, mysticism, and art and architecture.2

Looking East: The Ottoman Case in a Comparative Perspective

Among the legal systems of the early modern Muslim world, the Ottoman system is the best studied. This may explain the central place it occu- pies in many accounts of Islamic legal history. In what follows, I aim to expand the scope of inquiry and suggest that the history of the Ottoman legal system and learned hierarchy should be situated in the broader con- text of the eastern Islamic lands of that period.

To this end, I would like to point to some key issues that figure in the modern scholarship on other roughly contemporary polities (and, to a lesser extent, in primary sources produced throughout the eastern Islamic lands) and that bear significant similarities to the Ottoman case and its historiography.

My intention is not to obscure substantial differences between the polities.

Among these differences one can list the size of the polities; their political organization; and the social, ethnic, and denominational compo- sition of their populations. Nor is my intention to produce a comprehen- sive comparative account of the differences and similarities. This clearly would be too ambitious. Furthermore, I am not implying that the notions of law (and sovereignty) that concern us here were the only source of political inspiration that Muslim dynasts and emperors across the east- ern Islamic lands could and did draw on.

Nor am I suggesting that the discourse and ideas I am tracing here were always the most dominant throughout the region during this time period. In most polities through- out the eastern Islamic lands in the centuries following the Mongol invasions, one can find multiple, at times contradictory, discourses and ideals of sovereignty, kingship, and law.

In the fifteenth and sixteenth centuries, Ottoman sultans, for example, participated in other discourses – Byzantine, Mamluk, and Mediterranean – of sovereignty and kingship,3 while the Mughal dynasty adopted many practices and discourses of kingship that prevailed across the subcontinent and beyond.4

My objective is to draw attention to the circulation across the post-Mongol eastern Islamic lands of specific discourses and views concerning the relationship between dynastic and Islamic (Sunnıﻼ) law. The particular structure and discourse of authority, the Sunnıﻼschool of law (and, more specifically, the H￵anafıﻼschool of law), led me to focus on the Sunnıﻼdynas- ties. Much of what will be said in the following pages, however, may also be applied to Safavid Iran, the major Shiʿıﻼcounterpart of the Ottomans.5

Methodologically, the comparison of the Sunnıﻼpolities has to over- come several challenges. First, there are gaps in the modern historiography of these polities.

 Second, there is considerable variation in the amount and nature of the primary sources from different parts of the eastern Islamic lands; for example, within the H￵anafıﻼschool of law from the Ottoman lands, there is a sizable corpus of biographical dictionaries that are dedicated to senior members of the imperial learned hierarchy as well as several works that document the intellectual genealogies of the

hierarchy, whereas, to the best of my knowledge, other scholarly circles across the eastern Islamic lands did not produce such works. These gaps raise two fundamental questions: How should one treat the missing parts of the puzzle? And, second, what is the relationship between the missing and existing parts?

While not downplaying the challenges these gaps pose, a comparative approach may also offer ways to bridge them, as the existing parts of the puzzle are indicative of important similarities and shared patterns.

These similarities, I believe, may also permit extrapolating, albeit cautiously and tentatively, about the missing parts. In other words, the historiographical move I am suggesting is bidirectional: on the one hand, I would like to suggest that the Ottoman adoption of a particular branch within the Ha￵nafıﻼ school be studied as part of a legal culture shared by other polities and dynasties throughout the continent, their particularities notwithstanding; on the other hand, I use the Ottoman case to contextualize and explain similar administrative and legal practices in other polities across central and south Asia.

To be more concrete, I would like to examine two practices that recur in different contexts across the eastern Islamic lands throughout the post-Mongol period (as well as in the modern historiography) and are central to my understanding of the Ottoman adoption and development of an official school of law: the appointment of muftısﻼby the ruling dynasty and the imperial canonization of jurisprudential texts.

Furthermore, I am interested in investigating these developments as the outcome of the rise of dynastic law in the post-Mongol eastern Islamic lands.6

The most striking pattern is the rise of the officially appointed muftıﻼship throughout the region. As early as the first decades of the fifteenth century, Capital of Qazvin,” Journal of the American Oriental Society

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