An Introduction to Islamic Law (15 page)

Toward the end of the sixteenth century, the Ottomans introduced an important change to their method of governance – they unified administrative and legal powers within the jurisdiction of the Shari
a judge. The
qadi
became the only government official empowered to hear cases and to adjudicate them, and more importantly, to decide on the legality of conduct of the highest provincial officials, including
provincial governors.
It was the
qadi
who supervised the transfer of the governor’s office: he was the one who called on the outgoing governor to surrender his documents, weapons, gunpowder, and everything else related to his office; he was the one who confirmed the new governor and his subordinates, such as guards, tax-farmers, canal janitors, etc.
In fact, in order to ensure the compliance of the governor, the lines of communication between Istanbul and provincial
qadi
s were kept open, unconstrained by any intermediate official. Obviously, curbing the abusive powers of the provincial governors depended, at the end of the day, on Istanbul’s military might, as evidenced by its failure to control provincial separatism in the late eighteenth century
.

The
qadi
under the Ottomans often overtook many of the
MUHTASIB
’s functions as well. The
muhtasib
, a centuries-old institution, heard disputes mainly in three domains: (1) foul play with respect to weights and measures in the marketplace; (2) fraud in the sale and pricing of merchandise; and (3) refusal to pay back debts when the debtor was solvent. But in fewer instances he was also charged with other functions, including bringing government officials to court on charges of corruption or abuse of the powers delegated to them by the sultan, although it was the
qadi
who alone could pass verdict on such infractions. The
muhtasib
was also assigned the duty to urge neighborhood residents to attend Friday prayers, and generally to conform to good conduct. Yet, he had the competence neither to pass a judicial decision nor to imprison any person on the charge of non-payment of a debt. And herein lies another difference between the
qadi
’s and the
muhtasib
’s duties: the
qadi
was passive in that he presided in his
MAJLIS
, awaiting
litigants to appear before him, whereas the
muhtasib
’s function was proactive, in that he could suddenly appear on site, reining in malpractice while it was being committed. Insofar as executive competence was concerned, the
muhtasib
ranked lower than the
qadi
, just as the
qadi
ranked lower than the judge presiding over
mazalim
tribunals. This ranking, it must be clear, was a matter of normative practice, sanctioned by no formal hierarchy.

That the
qadi
at times took over the
muhtasib
’s
inspectorial functions in the area of tax collecting underscores a fundamental policy of the Ottomans, namely, that in fulfillment of the philosophy embedded in the Circle of Justice, the power of
government officials was to be curbed and checked at every point. Until the very end of the eighteenth century, the system worked, and worked well, because a number of factors combined to produce these curbing effects.

First, the civilian population was subject to the law of the Shari
a, an unwavering standard of justice. The people thus enjoyed immunity from the sovereign’s crude power whether with regard to life or property. The government’s servants, by contrast, were subject to a less merciful code, which may aptly be called sultanic. We have here a unique feature of justice in the lands of Islam, for while no man or woman, Muslim, Christian or Jew, in the civilian population could be punished without a Shari
a court trial – largely independent of the sovereign’s will – the sultanic code was absolute with regard to the sovereign himself and his men.

The
sovereign himself was expected to observe not only his own code but, more importantly, the law of the Shari
a. Forbearance, mercy and near infinite forgiveness were expected, standards of governance that, when violated, could result in his dismissal or even assassination, a frequent event in later Ottoman times. For political power to acquire any
legitimacy, it had to meet these standards, and conduct itself in a morally and legally responsible way. Even highly unsympathetic European observers of the Islamic legal system felt compelled to acknowledge this feature. For example, the eighteenth-century English scholar
Alexander Dow observed that the Shari
a “circumscribed the will of the Prince” who “observed [the law]; and the practice of ages had rendered some ancient usages and edicts so sacred in the eyes of the people, that no prudent monarch would choose to violate either by a wanton act of power.”
¹

Therefore, ruling in accordance with
siyasa shar
iyya
was in no way the unfettered power of political governance but in a fundamental way the exercise of wisdom, forbearance and prudence by a prince in ruling his subjects. In the case of the civilian population, these qualities manifested themselves in the recognition of the
qadi
as the final judge and as representative of the religious law, for in each and every case referred by the sultan to the
qadi
, it came with the unwavering sultanic command that the
qadi
apply the law. While the
imperial servants, on the other hand, also frequently benefited from the sultanic virtue of forgiveness – especially upon first or less grave infractions – they were ultimately subject to the
sultanic code that was absolute, swift and harsh. The right of summary judgment was reserved for the sultan against his own men and, by extension, their official representatives, all of whom owed complete allegiance to him. For, after all, these men, who were brought up from childhood as the servants of the state, literally belonged to the
saltana
(sultan-ship). They themselves, and all the wealth that they would accumulate in their
lives, were the property of the
saltana
; and this property was to revert to whence it came at the discretion of the sultan
.

Government employees, including
qadi
s, thus represented the sultan who, as the overlord, was responsible for any commission of injustice by his servants. With the virtual abolition of the
mazalim
, the Ottomans augmented the powers of the
qadi
, making him the judge of these servants’ conduct and affirming the supremacy of the Shari
a’s jurisdiction. But the function itself continued at the same time to operate through means that were now more direct than before. Misconduct of government servants and of
qadi
s could be referred directly to the sultan or the
Office of Complaints in Istanbul. What is remarkable about this conception and practice of governance is that, far from depending on an ethic of desirable and fair conduct of institutions (or constitutions), it was grounded in a different ethic seen as indispensable for
political legitimacy and for the well-being of “state” and society. In other words, it was a culture. For the sultan himself and his
Imperial Council and Office of Complaints
were all as accessible to the peasant as to the urban elite. It was thus by design that a line of communication was always left open between the tax-paying subjects and the imperial order. The symbiotic existence of government and society fulfilled the requirements of a Shari
a-based political community, without which the aims of the
Circle of Justice could not be accomplished.