1 Islamic Law and Society 15 (2008) Islamic Law and Society Sulh and the 18 th Century Ottoman Courts of Üsküdar and Adana* Işık Tamdoğan Abstract is article explores and compares cases of sulh (amicable agreement) that are documented in the records of two Ottoman courts one in Üsküdar, the other in Adana in the second half of the 18 th century. As a dispute resolution practice, sulh draws on three normative systems: shariʿa, kanun and ʿörf. An abundance of references to sulh agreements in court records testifies not only to the importance of this social practice, but also to complex interrelations between the three normative systems. Sulh documents provide evidence of the interrelation between the shariʿa court and other legal arenas. e judges in both Üsküdar and Adana viewed sulh agreements even those concluded privately and outside of court as valid and binding. ere were, however, significant differences between the two courts regarding the sulh cases; these differences highlight the connection between the location of the court and its specific legal culture. Keywords sulh, dispute resolution, Ottoman legal culture, ʿörf, kanun, shari ʿa, Adana, Üsküdar, court records (sicil), Ottoman courts, customary law 1. Introduction In this article I explore sulh (amicable agreement) cases found in the records (sg. sicil) of two 18 th century Ottoman courts one in Üsküdar, Correspondence: Işık Tamdoğan, Centre National de la Recherche Scientifique (CNRS), and Ecole des hautes Etudes en Sciences Sociales ( EHESS), Centre d Histoire du Domaine turc, 54 boulevard Raspail, Paris, France. * I am grateful to Iris Agmon, Ido Shahar and Gilles Veinstein for their generous assistance in reading and commenting on several drafts of the article. I also thank the anonymous readers of Islamic Law and Society for their very useful comments and criticism. Koninklijke Brill NV, Leiden, 2008 DOI: / X287307
2 56 I. Tamdoğan / Islamic Law and Society 15 (2008) an administrative district of the Ottoman capital, and the other in Adana, capital of the Anatolian province of the same name. Ottoman courts constituted an arena of negotiation between three normative domains, shariʿa, kanun (Ottoman legislation) and ʿörf (customary law), 1 and their judges (sg. qadi) acted within the framework of all three domains. Moreover, the courts were not the only legal arena in which Ottoman subjects sought legal remedies for their problems. My analysis focuses on the interrelations between dispute resolution proceedings that were conducted both inside and outside the court, with a view to shedding light on the interplay among the three normative domains. e records indicate that some sulh agreements were brought to court only for registration, while others were negotiated and concluded inside the court. Disputes could be resolved orally and out of court or in the presence of the qadi. In the latter case, the proceedings were recorded. At first glance, these options point to a dichotomy between informal and formal dispute resolution procedures. I will argue, however, that the various tools for reaching sulh agreements complement each other: Whether reached outside or inside the court, and whether concluded orally or in writing, the various forms of sulh agreement represent different points on a single continuum that links the court with external sociolegal arenas. Several actors the qadi, other court officials, local notables, family members, and acquaintances of the parties to the dispute who act as mediators and witnesses were involved in the process of establishing a sulh agreement. e negotiations, based on social and communal ties, were often complex. Ultimately, each such settlement was shaped by a variety of personal interests and local 1) Ronald Jennings, Limitations of the Judicial Powers of the Kadi in 17 th c. Ottoman Kayseri, Studia Islamica, 50 (1979), ; Haim Gerber, Sharia, Kanun and Custom in the Ottoman Law: e Court Records of 17 th -Century Bursa, International Journal of Turkish Studies, 2 (1981), ; Boğaç Ergene, Local Court, Provincial Society and Justice in the Ottoman Empire. Legal Practice and Dispute Resolution in Çankırı and Kastamonu ( ) (Leiden: Brill, 2003); Leslie Peirce, Morality Tales: Law and Gender in the Ottoman Court of Aintab (Berkeley: University of California Press, 2003). Although the term ʿörf is sometimes used to indicate the sultan s codes (kanun), I use ʿörf in this article to signify local custom. For a discussion of the term, see Uriel Heyd, Studies in Old Ottoman Criminal Law (Oxford: Clarendon Press, 1973),
3 I. Tamdoğan / Islamic Law and Society 15 (2008) power relations. Only hints about these complex social realities are inscribed in those sulh cases that were recorded in the court. Based on my analysis of a sample of sulh cases from the courts of Üsküdar and Adana, I maintain that the practice of sulh does not belong exclusively to one of the three legal domains, shariʿa, kanun or ʿörf. Rather, this practice interacted with all three and should be analyzed as such. Based on a comparison of findings from these two courts, I also address the issue of locality and the ways in which it affected the practice of sulh e Historical Setting and the Sources In the 18 th century, Üsküdar was one of the four judicial districts of the Ottoman capital: Istanbul (intra muros), Galata, Eyüb and Üsküdar. Istanbul was the principal district. e territory of its jurisdiction covered the city center, where the Ottoman civil administration was located. e other three districts, called bilad-ı selase (the three towns), were subordinate to Istanbul. Each district had its own court, presided over by a judge (qadi) who was assisted by several deputies (sg. naʾib). 2 In the capital, the power of the qadis was circumscribed by that of the Grand Vizier. In addition to the Imperial Assembly (divan-ı hümayun), the Grand Vizier held the weekly Wednesday Assembly (Çarşamba divanı). It appears that residents of the capital were free to take their legal problems either to the local court serving their district or to the Wednesday Assembly. At the latter, the Grand Vizier would distribute the judicial cases among the four qadis of the capital. Upon concluding the assigned cases, the qadi would report back to the Grand Vizier, sending him the case records (sg. maʾruz, literally a document submitted by a state official to a higher state authority). 3 2) On the Ottoman naʾib, see Gilles Veinstein, Sur les nâʾib Ottomans (XVème-XVIème siècles), Jerusalem Studies in Arabic and Islam, 25 (2001), On the changing meaning and use of the term naʾib, see Iris Agmon, Recording Procedures and Legal Culture in the late Ottoman Shariʿa court of Jaffa, , Islamic Law and Society, 11 (2004), , at ) Abdülaziz Bayındır, Islam Muhakeme Hukuku, Osmanlı devri uygulaması (Istanbul: İlmi Araştırmalar vakfı yay., 1986), 18; Betül Başaran, Remaking the Gate of Felicity: Policing, Social Control and Migration in Istanbul at the end of the Eighteenth Century, 1789-
4 58 I. Tamdoğan / Islamic Law and Society 15 (2008) e provincial town of Adana (with some 25,000 inhabitants in the 18 th century) is located below the Taurus Mountains on the Cilician plain. 4 A qadi presided over the town s court while naʾibs served in the other courts of the province. e qadi of Adana and the governor met regularly in the provincial assembly (eyalet divanı) to assign administrative tasks. We have little evidence concerning the relations between the qadi and the governor, and we have no information about the frequency with which the assembly met or how it worked. e court registers of provincial towns indicate, however, that provincial qadis bore a heavy administrative burden. e nature, form and shape of Ottoman court records were in - fluenced by the local circumstances under which they were produced. e division of labor between the Grand Vizier and the district qadis influenced the recording procedures and the composition of the Üsküdar court records, and it also may have affected judicial practices 1793 (Ph.D. dissertation, University of Chicago, 2006), 230, 234. e scant information currently available concerning the Wednesday Assembly (especially the maʾruz practice) does not allow me to establish a clear view of its mode of operation in the second half of the 18th century. What was the division of labor between the Wednesday Assembly and the district courts in the Ottoman capital? Were litigants free to choose the legal venue, or were certain kinds of lawsuits required to be submitted to one institution or the other? Did the Grand Vizier distribute all the cases that were brought to the Assembly to the district courts, or did he deal with some cases in the Assembly itself? Currently, I am in no position to answer these questions authoritatively. is article presents initial investigation of these questions. I hope to achieve a better understanding of them in the near future. For some works dealing briefly with the Wednesday Assembly, see Ahmet Mumcu, Divanı hümâyun (Istanbul: Birey ve Toplumsal Araştırmalar dizisi, 1986), About the procedures in this institution in the 18th century, see I. H. Uzunçarşılı, Osmanlı Devletinin Ilmiye Teşkilâtı (Ankara: TTK yay, 1988), 137-8; Engin Akarlı, Law in the Marketplace: Istanbul, , in Dispensing Justice in Islam, ed. M. Kh. Masud, R. Peters and D. S. Powers (Leiden: Brill, 2006), , at 247, 259. A case brought by a woman from Üsküdar before the Wednesday Assembly and then assigned by the Grand Vizier to the qadi of Üsküdar will be discussed below. is procedure, which is typical of the imperial capital, should not be confused with petitions (sg. şikayet) sent to the Imperial Assembly by individuals or groups of Ottoman subjects residing anywhere in the empire. See e.g. M. Ursinus, Grievance administration (şikâyet) in an Ottoman province. e kaymakam of Rumelia s Record Book of Complaintsʾ of (London: Routledge Kurzon, 2005). 4) is estimate is based on a special court volume that includes records of the households of the entire town (Adana Court Record, vol. 29). Unfortunately, we do not have similar information on the population of Üsküdar for the same period.
5 I. Tamdoğan / Islamic Law and Society 15 (2008) in the court. e most striking feature of the Üsküdar registers is that they included two different types of case records (sg. hüccet), iʿlam (court ruling) and maʾruz, which were filed in separate volumes. Documents of the iʿlam type, namely regular case records pertaining to sales and lawsuits, end with a court decision, and the names of the case witnesses (şuhud-ul hal) are specified at the bottom of the records. 5 e documents of the maʾruz type, found in separate volumes, resemble the iʿlam records, except that they do not include the names of witnesses and that each document opens with the word: maʾruz. 6 Apparently, the higher authority to whom the maʾruz documents of Üsküdar were addressed was the Grand Vizier. 7 While in the districts of the capital the qadis were subordinated to the Grand Vizier, in provincial cities like Adana, it was the interrelation between qadis and governors that shaped the work of the courts and their recording procedures. 8 e registers of a provincial court are, therefore, different from those in the capital. Each Adana court register contains many different types of docu ments iʿlam records, copies of imperial decrees, estate inventories (sg. tereke) as well as administrative and military appointments. 9 Furthermore, no maʾruz documents are found in Adana. 10 I shall return to the significance of this difference below. 5) Ahmet Akgündüz, Şerʿiye sicilleri, 2 vols. (Istanbul: Türk dünyası araştırmaları vakfı yay., 1988), 1: ) It is still unclear to me whether the absence of the names of witnesses in maʾruz documents indicates that there were no such witnesses present at the procedure or that their names simply were not recorded. 7) Haim Gerber has argued that the maʾruz documents in the court registers reflect a practice specific to 18 th -century Ottoman courts. See Haim Gerber, State, Society and Law in Islam (New York: Sate University of New York Press, 1994), 43. See also note 3, above. 8) Jennings, Limitations ; cf. Ursinus, Grievance administration, 4, 7, 18; Başaran, Remaking the Gate of Felicity, ) Svetlana Ivanova calls this type of volumes complex sicills. See Svetlana Ivanova, e Sicills of the Ottoman Kadis. Observations over the Sicill Collection at the National Library in Sofia, Bulgaria, in Pax Ottomana. Studies in Memorian Prof. Nejat Göyünç, ed. K. Çiçek (Ankara: SOTA Yeni Türkiye yayınları), 71. On this type of court record, see also G. D. Galabov and H. W. Duda, Die Protokollbücher des Kadiamtes Sofia (Munich: R. Oldenbourg, 1960), ) On the differences between the court records, see H. Ongan, Ankaraʾnın 1 numaralı Şeriye Sicili (Ankara: TTK yay., 1958), V.
6 60 I. Tamdoğan / Islamic Law and Society 15 (2008) is study is based on three court registers from Üsküdar and seven from Adana, all dating from the second half of the 18 th century. 11 One of the Üsküdar registers contains iʿlam type documents, 12 and the other two contain only maʾruz documents, 13 all of which open with the word maʾruz and conclude with the comment, to be transmitted to your highness (huzur-u alilerine iʿlam olundu). e three Üsküdar court registers include 54 sulh agreements, while the seven Adana court registers contain only 31 such agreements (see Table 1 below). 14 e Adana registers include a relatively small number of cases of various legal types. Numerous administrative appointments and similar issues reflect the variety of non-legal functions performed by the court of a relatively remote province. e Üsküdar registers, by contrast, contain a large number of court cases of the same legal nature and only a few documents pertaining to administrative issues. is situation probably reflects the proximity of the court to the imperial center and the nature of the interrelation between the court personnel and their nearby superiors. While the total number of sulh cases in the Üsküdar 11) Initially, I investigated 18 th -century Adana. See Işık Tamdoğan-Abel, Les modalités de l urbanité dans une ville Ottomane (Ph.D. Dissertation, EHESS, Paris, 1998). I was encouraged by my findings to focus on the practice of sulh in the Adana court. To better understand this practice, particularly the ways in which it was shaped by local circumstances and court routine, I chose to compare the Adana registers to a sample of registers taken from a very different local setting, that of Üsküdar. Although the sample from Üsküdar is smaller, covering only a few years, each Üsküdar register contains more court cases than the total number of cases included in the seven registers from Adana. e volumes included in the present study are: seven court registers from Adana [hereinafter: ACR], ACR 28, ; 40, ; 46, ; 47, ; 48; 52, 1762; 132, the originals are preserved at the National Library of Ankara (Milli Kütüphane); three volumes from the court of Üsküdar [hereinafter: ÜCR], ÜCR 474, 1763; 473, 1763; 466, the originals are preserved at the Archives of the Chief Mufti in Istanbul (Müftülük). Microfilm copies of these volumes are found in the library of ISAM (Research Center of Islam) in Istanbul. A transcription of volume 466 prepared by Sadık Fethi Çetin is available in the ISAM library. See S. F. Çetin, 466 numaralı Üsküdar şeriyye sicili, Marmara Üniversitesi Yüksek Lisans tezi, ) ÜCR ) ÜCR 466 and ) ese cases are distributed as follows: In the Üsküdar registers, 4 sulh agreements are included in volume 473, 12 in volume 474, and 38 in volume 466. In the Adana registers, 9 sulh agreements are included in volume 28, 3 in volume 40, 4 in volume 46, 2 in volume 47, 1 in volume 48, 8 in volume 52, and 4 in volume 132.
7 I. Tamdoğan / Islamic Law and Society 15 (2008) registers is higher than that from Adana, in terms of percentage, sulh cases appear more frequently in the Adana registers than in those from Üsküdar. In the latter, the number of sulh cases recorded as maʾruz is much larger than those recorded as regular iʿlam. I shall discuss these differences below. Table 1. e sample: court volumes and sulh cases Locality Volumes Period Type of volume Number of sulh cases Total number of cases % of sulh cases Adana ACR mixed Adana ACR mixed Adana ACR mixed Adana ACR mixed Adana ACR mixed Adana ACR mixed Adana ACR mixed Total Üsküdar ÜCR ma ruz Üsküdar ÜCR i lam Üsküdar ÜCR ma ruz Total e Legal Status of Sulh Agreements In January 1763, 15 a woman named Ayşe appeared in the Adana court and sued a certain Mustafa Beşe, claiming that he had wounded her husband, Ibrahim, five years earlier. Ayşe, who asserted that her husband died as a result of those wounds, asked the court to question Mustafa Beşe and bring him to justice. Mustafa Beşe responded that he and Ibrahim had concluded a sulh agreement prior to his death: While Ibrahim was still alive and conscious, he accused me, saying you have wounded me. One year before his death, we used intermediaries to establish an amicable settlement (sulh). We both accepted the conditions of this settle- 15) e date given in the document is: evail receb, 1176, i.e., the first 10 days of the month receb, from 16 January to 26 January 1763.
8 62 I. Tamdoğan / Islamic Law and Society 15 (2008) ment, and I made the sulh payment the equivalent of 50 guruş in cash, a sacred Koran worth 17 guruş and a sword worth 10 guruş. 16 He received the money and items from me. He discharged me and promised not to file any complaint against me in future. Judicial procedure required that the defendant, Mustafa Beşe substantiate his counter-claim. 17 He produced two witnesses who declared the following: It is true, before his death Ibrahim received from Mustafa Beşe, in the reception room (oda) of Ömer Ağa, 18 as sulh payment, 50 guruş in cash, a Koran worth 17 guruş and a sword worth 10 guruş. us, [Ibrahim] discharged [Mustafa Beşe] from all future complaints. We [the witnesses] were present there and testify to the accuracy of the [above mentioned] details. Based on the testimony of the witnesses, the qadi ruled in favor of Mustafa Beşe, stating that he owed nothing to Ayşe. 19 In this case, a sulh was in fact concluded between Mustafa Beşe and Ibrahim in the reception room of a certain Ömer Ağa, that is to say privately, without the presence of any judicial or administrative authority. No written evidence was brought to the court to confirm the settlement. Instead, the two witnesses who were present when Mustafa Beşe and Ibrahim concluded the sulh testified in court to the truthfulness of the claim. 16) Examples of prices in Adana in the second half of 18th century: According to the court register of 1777, the value of houses ranged between 50 and 1,000 guruş. e value of an average house was 380 guruş (ACR 47). In 1797 the price of a saddle varied from 4 to 7 guruş (RCA 55/ ). 17) According to Islamic law, the burden of proof falls on the plaintiff. However, if the defendant makes a counter-claim, the burden of proof shifts to the defendant. On the counter-claim (def ʿ) in Islamic law, see Muhammad Khalid Masud, Rudolph Peters, David S. Powers, Qadis and their Courts: An Historical Survey, in Dispensing Justice in Islam, 23; Bayındır, Islam Muhakeme Hukuku, ) In 18 th -century Adana the term oda signified a room, in general, or, in a wealthy household, a room reserved only for men and their guests (selamlık). In the case at hand, it seems that oda refers to the latter. Ömer Ağa, who seems to have had a prosperous household, was probably a notable. See also Suraiya Faroqhi, Men of Modest Substance: House Owners and House Property in the Seventeenth-Century Ankara and Kayseri (Cambridge: Cambridge University Press, 1987), ) ACR 28, 100.
9 I. Tamdoğan / Islamic Law and Society 15 (2008) In this case, an out-of-court sulh agreement concluded privately and (seemingly) orally between the parties was later recognized by the qadi. e case illustrates that such private agreements were not considered to be beyond the purview of Ottoman legal culture. 20 Many sulh agreements found in the court records seem to have been first negotiated out of court. Later on, they were brought to the qadi, either for recording, or, as in the case cited above, for adjudication. In both instances, these agreements obtained the recognition of the qadi when submitted to the court. e passage of sulh agreements into the courts demonstrates the effective interrelation between the various legal arenas Sulh According to Shariʿa and Kanun In Islamic tradition, sulh literally peace, reconciliation, amicable arrangement or capitulation 21 is a religious, ethical and legal term. In the Koran it appears as an ethical ideal underlining the importance of peacemaking for safeguarding harmony within the Muslim community (umma). 22 e notion of sulh constitutes an integral part of Islamic substantive law (fiqh). As Aida Othman notes in a recent study on sulh, the Koran emphasizes that sulh is the best (el-sulh hayir), rendering it superior to adjudication, which may bring rancor and disaccord. 23 It appears that Abu Hanifa ( CE), eponym of the Hanafi school of law (which later became the dominant school in 20) For a discussion of the legitimacy of private contracts in Islamic Law, see Emile Tyan, Le notariat et le régime de la preuve par écrit dans la pratique du droit musulman, Annales de l Ecole Française de droit de Beyrouth 1 (1945), 3-99, at ) James W. Redhouse, A Turkish and English Lexicon (Istanbul: Çağrı yayınları, 1978), ) Sulh also signifies a peace agreement for ending a war between a Muslim state (dar al- Islam) and its non-muslim (dar al-harb) enemies. Such peace agreements are valid for a period of ten years. See EI 2, s.v. Ṣulḥ (Majid Khadduri). Sulh agreements between states or rulers belong, by modern legal definitions, to international law rather than to private law, the legal sphere that includes most of the sulh settlements. 23) Aida Othman, And Sulh is the best: Amicable Settlement and Dispute Resolution in Islamic Law (Ph.D. Dissertation, Harvard University, Boston, 2005), 6. is dissertation is one of the most detailed studies on the legal sources of sulh. See also idem, And Amicable Settlement is the Best: Sulh and Dispute Resolution in Islamic Law, Arab Law Quarterly 21 (2007),
10 64 I. Tamdoğan / Islamic Law and Society 15 (2008) the Ottoman empire), adopted a lenient attitude toward sulh agreements. 24 One of the earliest chapters devoted to sulh agreements in a fiqh manual is that written by Muhammad al-shaybani (d. 189/845), one of Abu Hanifa s famous disciples. 25 Sulh agreements are also discussed at length in separate chapters of doctrinal law books, authored by several important jurists, as well as in influential fatwa (legal opinion) collections. 26 Islamic law thus allows in fact, encourages compromises based on amicable settlements in all types of disputes, except for hadd crimes (crimes against God), 27 provided that the ideals of conciliation and compromise are balanced with the principles of justice and truth. 28 As Othman observes, the inclusion of the Koranic expression sulh is the best in most of the Ottoman sulh records suggests that sulh was a cherished religious and moral value in Ottoman legal culture. 29 Sulh agreements are also mentioned in the kanun. Uriel Heyd notes that sulh agreements are mentioned already in the 16 th century Dulkadir regulations, which were included in the code for the province of Bozok (Bozok kanunnamesi). 30 In the code of Selim I ( ), sulh agreements entail a reduction in fines (cerime), in the sense that a person convicted of a criminal offence pays a reduced fine to the military authorities, if he or she concludes a sulh agreement with the victim. 31 If similar rules were enforced in 18 th century Adana and Üsküdar, anyone who faced a conviction for a criminal offence would have had a strong incentive to reach a sulh agreement with the 24) EI 2, s.v. Ṣulḥ, ) Othman, And Sulh is the best, ) Muslim jurists treat sulh as a type of contract. See Othman, And Sulh is the best, For detailed references to the treatment of sulh in fiqh works, see ibid., 206. For a discussion of sulh in a famous fatwa collection, see Şeyhülislam Ebusuud, Bayezid Library, ms. 2757, cited in M. Ertuğrul Düzdağ, Ebussuûd efendi Fetvaları (Istanbul: Enderun Kitapevi, 1983), ) C. Üçok and A. Mumcu, Türk Hukuk Tarihi (Ankara: Savaş yayınları, 1985), 87; Othman, And Sulh is the best, ) Ibid., ) Ibid., ) Heyd, Studies, ) Selami Pulaha and Yaşar Yücel, Le code (Kânûnnâme) de Selim Ier ( ) et certaines autres lois de la deuxième moitié du XVIe siècle (Ankara: TTK basımevi, 1988),
11 I. Tamdoğan / Islamic Law and Society 15 (2008) victim(s). Unfortunately, we know hardly anything about the imposition of these fines in the 18 th century. 32 erefore, it is difficult to establish a correlation between the fines and the motivation for reaching sulh agreements. e relatively high percentage of sulh cases pertaining to offences against the human body or life (see Table 2, below) seems to indicate that there was a substantial incentive either legal or social, and, more likely, a combination thereof to resolve disputes relating to such offences through an amicable settlement Sulh Agreements as Inscribed in Case Records e court records of Üsküdar and Adana mention three types of sulh: (1) cases which started as a lawsuit and ended with a sulh agreement in the court (see the case of Saliha s inheritance, discussed below); (2) a sulh concluded out of court and brought to court for registration (see the next case cited below); and (3) a sulh concluded out of court that failed to end the dispute, for which reason one of the parties filed a lawsuit against the other party (as in the case of Ayşe and Mustafa Beşe). e third type is not very common, 33 but it is nevertheless interesting. As the case of Ayşe and Mustafa Beşe cited above illustrates, oral sulh agreements that failed to end the dispute might nevertheless be recognized by the court. 32) e kanunname collection that has been published covers only material up to the 17 th century. See A. Akgündüz, Osmanlı Kanunnameleri ve Hukukî Tahlilleri, 9 vols. (Istanbul: Osmanlı Araştırmaları Vakfı, 1996). In the published material of the 17 th century, sulh is mentioned only in the sense of peacemaking with the empire s enemies at the time of war (ibid., 9: 19, 427, 432, 612). is does not exclude the possibility that there were regulations dealing with sulh, but that these have not (yet) been published. To the best of my knowledge, the only study on the collection of such fines is that by Amy Singer, based on a 16 th -century source that does not mention sulh contracts. It is therefore difficult to determine whether or not amicable settlements actually entailed reduced fines. See Amy Singer, Marriages and Misdemeanors, Interdisciplinary Journal of Middle Eastern Studies, 4 (Spring 1996), ) Only one (on which, see below) of the 54 sulh cases registered in the Üsküdar registers mentions an earlier oral sulh agreement. And only 5 of the 31 sulh cases recorded in the Adana registers mention such an agreement. See also I. Tamdoğan-Abel, L écrit comme l échec de l oral, Revue du Monde Musulman et de la Méditerranée, 75-6 (1995),
12 66 I. Tamdoğan / Islamic Law and Society 15 (2008) From references to the sulh practice included in court records it is possible to recover certain information about the circumstances under which these out-of-court agreements might have been concluded. e following sulh agreement recorded in the court of Adana serves as an illustration: Abdurrahman bin Mehmed and Umm Gülsüm, both inhabitants of the neighborhood of Ali Dede in the town of Adana, came to the holy assembly and declared in the presence of Ibrahim Çelebi bin Hüseyin Ağa, the bearer of this document (hafiz el-kitab), 34 the following: e inheritance of my deceased brother, Ömer Beşe, belongs [is owed] to me and to our mother, Umm Gülsüm. When he died, he had some items, to which my mother and I are entitled, in the shop that he shared with his associate, Ibrahim Çelebi. When I was about to sue Ibrahim in court, Muslim mediators [Müslimin-i muslihun] intervened and established an amicable agreement (sulh ʿakdi) between us. Accordingly, we received from Ibrahim 100 guruş in cash, a silver sword (kılıç), two firearms (tüfenk), two weapons (silah) and a big knife. We released him from all future claims regarding the inheritance of Ömer Beşe. After confirmation, everything that was said was written down and registered. 35 As in other cases recorded in court, in this type 2 sulh case (see above), the parties are first identified and the reason for their appearance in court is presented. Based on their narrative as it is inscribed in the record, we learn about the substance and nature of the dispute and how the sulh was reached by the parties. In this case, as in many other cases studied here, the plaintiff states that just before s/he was about to take the case to court, some mediators intervened and managed to forge a sulh agreement. e record then specifies that the value of the sulh was agreed upon, e.g., We made a sulh arrangement valued at 15 guruş. If the sulh agreement included the transfer of certain items, as in Ayşe s case, those items are mentioned in the closing section of the case record. e actual hand-over of the sulh payment (sulh bedeli), whether in cash or in kind, constitutes one of the most important 34) e common formula bearer of this document refers to the holder of the hüccet, namely the party to whom the official record of the court decision would be handed over. 35) ACR 47, 33, case 1.
13 I. Tamdoğan / Islamic Law and Society 15 (2008) aspects of amicable settlements. e names of the mediators are not mentioned in the record, except when the parties brought a type 2 sulh agreement to court. 3. What Were Sulh Agreements About? Sulh agreements could be used to resolve any kind of dispute except a hadd crime. ey were concluded between two Muslim parties, between non-muslim parties, or even between a Muslim and non- Muslim. 36 In my sample, the conflicts resolved by sulh fall into four main categories. Two of them pertain to damages caused to the human body wrongful death and bodily harm. e other two deal with property debts and inheritance. A fifth miscellaneous category represents sulh settlements pertaining to certain property matters, mostly real estate disputes and theft. e number of cases pertaining to each of these types of property dispute is too small to form an independent category. erefore, these cases are considered as one group in the survey (Table 2), in order to calculate more accurately the ratio between the main four categories of sulh cases. 37 Wrongful death and of bodily harm cases account for a large number of sulh arrangements in the courts of both Üsküdar and Adana (41 percent and 39 percent, respectively). e two categories of sulh agreements pertaining to property disputes should be discussed separately with regard to the two courts. Unlike the categories of wrongful death and bodily harm, debts and inheritance belong to two different spheres, both legally and socially. For the sake of accuracy, it should be noted that about half of the inheritance sulh cases included in the sample (3 cases from Üsküdar and 5 from Adana) deal with disputes between debtors of the deceased and the legal heirs. Most of 36) As in the case of Parsih and Ibrahim, discussed below. For sulh agreements between Muslims and non-muslims, see ACR 28, 8; ÜCR 466, documents 10, 30, 75, 298, 422; ÜCR 474, 29 case 4, 33 case 3, 34 case 5, 37 case 4, 77 case 4. For agreements between two non-muslim parties, see ACR 48, 143 case 1; ACR 132, 44 and 66 case 2; ÜCR 466, documents 24, 132, 191, 290, 329, ) I found only three sulh cases pertaining to theft in the Üsküdar registers and only one such case in the Adana sicil. e rest of the miscellaneous cases in both courts deal mostly with real-estate issues.
14 68 I. Tamdoğan / Islamic Law and Society 15 (2008) Table 2. Classification of sulh cases Registers ÜCR ACR Total Type of conflict Cases % Cases % Cases % Wrongful death Bodily harm Debt Inheritance Miscellaneous Total these cases resemble debt cases more than inheritance cases because, unlike most inheritance cases, debt cases are disputes between people who do not belong to the same family. When these cases are added to the regular cases in the debt category, the inheritance category diminish substantially in relation to the other three categories, particularly with regard to the data from Üsküdar (4 percent of the sulh cases, compared to 13 percent of those from Adana). e low percentage may suggest that, if family disputes were resolved through mediation, the sulh agreements were usually not brought to court, particularly in Üsküdar. Debt cases and inheritance cases, taken together, account for the exact same percentage (51 percent) of sulh cases in both court records. e fact that the percentage of property-related cases (especially when the miscellaneous cases are also included) is higher than the combined number of wrongful death and bodily harm cases, is significant only inasmuch as it reflects a basic normality in the societies in question. As to the differences between the two courts, the percentage of debt cases (including inherited debts) was notably higher in Üsküdar than in Adana (48 percent and 39 percent, respectively). In Üsküdar inheritance disputes resolved through sulh were rare (9 percent), whereas in Adana these cases formed the biggest individual category of recorded sulh cases (29 percent).
15 I. Tamdoğan / Islamic Law and Society 15 (2008) Cases of Wrongful Death and Bodily Harm In cases of wrongful death or bodily harm, the sulh practice appears to replace the payment of blood money (dem-ü diyet) to the victim. In the documents we often read that the parties agreed to put an end to the conflict and renounce all future claims for blood money by concluding a sulh agreement. 38 According to Islamic law, one way to escape retaliation (kısas) for wrongful death is to be pardoned (ʿafw) by the heirs of the deceased, i.e., to reach an amicable agreement, or sulh. 39 A settlement may be motivated by the desire of the perpetrator to avoid retaliation. According to Heyd, the amount of blood money is fixed by the shariʿa and is not subject to negotiation. By contrast, the sulh payment is a matter of negotiation between the parties. 40 As for the actual sums of money paid in the 18 th century, the evidence of a court register from Üsküdar covering the year indicates that the range of sulh payments made for wrongful death varied widely from 16.5 to 250 guruş, 41 while in cases of bodily harm, the payments ranged from 4 to 11 guruş. 42 It is difficult to compare the sums found in the Adana court registers with those of Üsküdar because in the former, sulh arrangements were not concluded exclusively on the basis of money. e payment of cash was almost always accompanied by a transfer of items, whose values were not always given. Taking into consideration the fact that an amicable settlement made it possible to negotiate the amount of blood money, and that concluding such an agreement may have resulted in reduced fines, we may speculate about the motivation for concluding sulh agreements. e clauses in several kanun codes 43 and the point about negotiation 38) Mezburan zimmetlerini dem-ü diyete muteʿallike vekaleten ve asaleten ibra-i ʿamm katʿ el-nizaʿyla ibra ve iskat-i hakk edüb, ACR 46, ) Joseph Schacht, An Introduction to Islamic Law (Oxford: Clarendon Press, 1984), ) Heyd, Studies, , ) ÜCR 466, cases 59, 75, 234, 315 and 440. In ÜCR 474 sulh payments for wrongful death range from 90 to 100 guruş. I found no sulh relating to wrongful death in ÜCR ) ÜCR 466, cases 129, 290, 319 and 321. In ÜCR 474 the sulh payment for bodily harm varies from 40 para (=1 guruş) to 23 guruş. In ÜCR 473 the price for bodily harm varies between 13 guruş and 22 guruş. 43) For the code of Selim I ( ), see S. Pulaha and Y. Yücel, Le code (Kânûnnâme)
16 70 I. Tamdoğan / Islamic Law and Society 15 (2008) stressed by Heyd suggest that sulh agreements opened the way for accused parties to cut their losses in a conflict. As for the accusers, Heyd suggested that they may have preferred an amicable settlement when they were uncertain of their ability to bring sufficient evidence to support a lawsuit. 44 Yet, the fact that both parties may have had an interest in concluding an amicable agreement does not necessarily mean that these agreements were achieved on the basis of free will. 45 In fact, the use of sulh to resolve debt disputes often took place under certain constraints Debt and Inheritance Cases: Choice or Constraint? In most debt dispute agreements, the value of the sulh was considerably lower than the original debt. As noted, one explanation may be uncertainty about the plaintiff s ability to provide sufficient evidence. But there may have been additional factors. In her study of 17 th century Aintab, Hülya Canbakal argues that the difference between the debt and the sum of money actually paid in sulh agreements resulted from constraints imposed by Aintab notables on local moneylenders. Canbakal investigates disputes that were resolved through the intervention of certain notables who had the power to impose suspiciously under-contracted settlements on the parties to disputes. 46 In such cases, constraint rather than free will seems to have led to the de Selim Ier, 17-19; for the regulations of the province of Dulkadir (from 1525), see Ahmed Akgündüz, Osmanlı Kanunnâmeleri ve Hukuki Tahlilleri, vol. 7 (Istanbul: Osmanlı Araştırmaları Vakfı yay., 1994), 157; and for the regulations of the Province of Bozok (from 1525), see A. Akgündüz, Osmanlı Kanunnâmeleri, vol. 6, ) Heyd, Studies, ) Cf. Mutaf, who emphasizes the peaceful nature of this practice. See Abdülmecid Mutaf, Amicable settlement in Ottoman Law: Sulh system, TURCICA, 36 (2004), , at ) According to one of Canbakal s examples, some villagers were forced to lend a certain sum of money to the governor of Maraş. Later they accepted a sulh agreement which entitled them to less than half of the original debt. See Hülya Canbakal, ʿAyntab at the End of the Seventeenth Century: A Study of Notables and Urban Politics (Ph.D. Dissertation, Harvard University, Boston, 1999), e case cited here is not included in H. Canbakal, Society and Politics in an Ottoman Town: ʿAyntab in the 17 th Century (Leiden: Brill, 2007), which is based on her dissertation.
17 I. Tamdoğan / Islamic Law and Society 15 (2008) sulh agreements, reflecting power relations between the elite and ordinary people. Indeed, the sums of money agreed upon in sulh settlements involving debts often represent 50 percent or less of the original debts. 47 It is again difficult to compare Adana to Üsküdar in terms of the correlation between the sulh payment agreed upon and the debts claimed by the moneylenders. is is because, in the case of Adana, the amount of the initial debt is not mentioned in the sulh documents. Whether or not sulh agreements were achieved in an amicable atmosphere, one thing is clear: they were often brokered out of court. Some people may have chosen this path because the services of the qadi were too expensive or because the court was located too far away. For the city dwellers of 18 th century Adana and Üsküdar, the distance to the qadi s office was probably not a decisive factor in the decision whether or not to appeal to the court. 48 A more important consideration would have been the fees charged by the courts. 49 Under these circumstances, some people may have preferred to resolve their conflicts out of court. 50 Concluding an amicable agreement out of court was not necessarily an easy task. Because they were based on mutual acquaintance and trust, such agreements required the backing of trustworthy local personalities, either as witnesses to the contract or as guarantors. 51 e making of a sulh agreement required strong local ties. For this reason, we assume that foreigners from other towns who lacked the necessary 47) In ÜCR 446, we find examples of sulh agreements that reduced debts from 77 to 44 guruş, from 42 to 20 guruş, from 40 to 6 guruş, and from 34 to 11 guruş. 48) By contrast, distance from the court did have an impact on the relationship between peasants and the courts in Lower Egypt in the 18th century. Nicolas Michel, Les paysans et leur juge dans la campagne d Esna (Haute Egypte) au XVIIIe siècle, Studia Islamica, 91 (2000), ) On registration fees, see Uzunçarşılı, Osmanlı Devletinin Ilmiye Teşkilâtı, ) For a discussion of court costs, see Ergene, Local Court, ) Based on research in southwest Turkey in the 1960s, June Starr noted that oral amicable settlements were still practiced in the region. Peasants preferred to handle the cases themselves through mediation. According to Starr, this was possible when a certain level of trust between the parties prevailed, and when they were acquainted through common relations. June Starr, Dispute and Settlement in Rural Turkey: An Ethnography of Law (Leiden: Brill, 1978), 184.
18 72 I. Tamdoğan / Islamic Law and Society 15 (2008) community ties--such as pilgrims or merchants-- found it simpler to bring their disputes to court. 52 e situation was different, however, when the parties to the dispute were also members of the same family, as in inheritance conflicts. As noted, if family members were in conflict with someone who was not their kin a debtor of their late relative, someone who claimed money or property that their late relative owed him/her, or a former business associate of the deceased 53 a sulh agreement basically resembled other debt cases. But what happened when an inheritance conflict arose among family members? Was their willingness to compromise through mediation different from that of non-kin disputing parties? In other words, does the fact that they were relatives make them more or less prone to practice sulh than non-kin disputing parties? e Adana and Üskudar court registers include only a small number of intra-family inheritance sulh agreements. ere is no way of ascertaining the reasons for the low number of such cases, but we may speculate about possible explanations. A plausible scenario is that inheritance disputes resolved by sulh agreements were rarely brought to court. As we know from the history of other Muslim societies, actual inheritance and bequest practices often diverge radically from shariʿa inheritance laws. 54 If similar patterns existed in 18 th -century Adana and Üskudar, and sulh agreements on inheritance issues tended not to follow Islamic prescriptive norms, this would explain their absence from the shariʿa court. If this was the case, then it illustrates nicely my argument concerning the three legal spheres, (kanun, shariʿa and ʿörf). ey were three distinct legal domains. eir interrelation was 52) On this point, see I. Tamdoğan-Abel, Les Hans ou l étranger dans la ville Ottomane, in Vivre dans l Empire Ottoman, ed. P. Dumont and F. Georgeon (Paris: l Harmattan, 1997), , at 328. See also Peirce, Morality Tales, ) E.g., ÜCR 466, doc. 335; ACR 28, 149; ACR 47, 33 case 1. 54) See, for example, the harsh words of an 18 th -century Algerian mufti named Muhammad al-kiki, who criticized Berber customs of disinheriting women, which stand in sharp opposition to normative shariʿa rules of inheritance. Al-Kiki is cited by Madeline Fletcher, How Can We Understand Islamic Law Today, Islam and Christian-Muslim Relations 17 (2006), , at 169. See also Haim Gerber, Social and Economic Position of Women in an Ottoman City, Bursa , International Journal of Middle East Studies, 12 (1980), , at 237; Aharon Layish, Women and Islamic Law in a Non-Muslim State (Jerusalem: Israel University Press, 1975),
19 I. Tamdoğan / Islamic Law and Society 15 (2008) complex. At some times, they overlapped or coexisted, at other times, e.g., with regard to certain issues (like inheritance), they contradicted each other, and hence the boundaries between them were upheld. We may further hypothesize that weak family members probably preferred to defend their rights by a regular lawsuit rather than mediation, since a customary division of the estate threatened to infringe on their inheritance rights according to the shariʿa. e shariʿa court enacted Hanafi rules of inheritance, and thus made sure that even weak family members were not denied their inheritance rights. Although a significant number of inheritance cases are recorded in the two courts, only a few of these cases refer to sulh agreements. is finding may also support the assumption that most inheritance sulh settlements were kept away from court. Another hypothesis, which does not necessarily rule out the former, is that intra-family disputes, whether resolved by sulh or through other means, often were not taken to court precisely because these were intra-family affairs. In many instances it may not have been considered proper to expose private family affairs in the public arena of the court. In other situations, in which sulh was reached, there was no point in going to court, since this offered no advantage or benefit over what the close social ties would provide. 4. Some Differences in the Local Usage of Sulh Agreements ree criteria determine the differences between court documents relating to sulh agreements from Adana and Üsküdar: (1) the context of oral sulh agreements; (2) the kind of payment agreed upon; and (3) the role of mediators involved in resolving the dispute. An analysis of these differences may give us an idea about local variations in dispute resolution practices e Context of Oral Sulh Agreements e Adana court registers show that out-of-court oral settlements frequently were brought to the court and thus entered the register. For example, in the already mentioned case of Ayşe, the record contains a description of the oral agreement concluded in the house of Ömer
20 74 I. Tamdoğan / Islamic Law and Society 15 (2008) Ağa. In another case, a certain Fatma filed a complaint against a former associate of her husband, Molla Ibrahim. Two witnesses testified that a sulh agreement had been concluded in the house of a man called Balcıoğlu. 55 In the Üsküdar registers, there is only one case in which we can positively identify a private oral sulh agreement: on 14 Muharrem 1179 / 4 July 1765, a certain Ibrahim went to court complaining about a non-muslim (zimmi) moneylender (sarraf) named Parsih from whom he had borrowed 100 guruş three years earlier. According to Ibrahim, the loan transaction was conducted unlawfully, since Parsih did not perform the fictitious sale procedure (bila devr üş-şerʿi), which indicates that the money was lent for interest. 56 He therefore claimed that the 60 guruş demanded by Parsih as interest was illegal. Parsih responded by saying that, in fact, Ibrahim owed him a total of 240 guruş, and that they had concluded a sulh agreement in the shop of Kantarcı (scale master) Mustafa for 160 guruş. Parsih further stated that Ibrahim had accepted this arrangement and that he had already paid him the 160 guruş. As Parsih was about to bring some witnesses to the court, Ibrahim disappeared and did not return. e qadi ruled that Ibrahim could no longer bring forward any claim against Parsih. 57 Since this case is the only instance in Üsküdar in which we find unequivocal evidence of a formal sulh agreement concluded outside the court, it is impossible to determine the extent to which such agreements were practiced there e Form of Payment ere is a major difference between the sulh agreements in the two courts in terms of the form of payment agreed upon: in Üsküdar, sulh contracts included payments in cash, only; in Adana, payments in kind were commonly part of the agreements ) ACR 28, 89, case 2. A similar case is that of Zahide, who concluded a settlement with her husband s associates in their house (ARC 48, 100-1). 56) e fictitious sale was a practice that apparently was developed as a means to avoid an open violation of the prohibition of usury. 57) ÜCR 466, case ) Tamdoğan-Abel, Les modalités de l urbanité dans une ville Ottomane,
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