An Introduction to Islamic Law (16 page)

Second, the imperial officials working on the ground were themselves members of the very communities to whom they were appointed as the ruler’s representatives, or as the representatives of his regional representative, the governor. The
local officials were the only administrative staff who knew their environment, since the highly frequent reshuffling of
provincial governors – which, in the first place, was intended precisely as insurance against establishing local connections and a power-base – rendered them incapable of intimately understanding, and therefore dealing with, the local population. This is also why the
governor’s assembly, which met regularly to discuss local problems, included the
qadi
s, the tax-collectors, the notables, the leading
mufti
s, the neighborhood representatives, and a host of other figures from the populace.

These local officials were therefore subject to intersecting interests whereby the loyalties they may have otherwise shown to the sultan and the Empire would be mitigated and counterbalanced by the local stakes they had in maintaining their own social, economic and moral networks. Indeed, the local
qadi
s,
mufti
s, representatives of neighborhoods and of professional guilds and even tax-farmers sat in the assembly as defenders of their communities’ interests, which latter had justified their appointment to that assembly in the first place
.

Third, and hardly dissociated from the two foregoing considerations, the loyalty of government servants to the sovereign was itself enshrined in the imperatives of the
Circle of Justice
. Yet, in order to realize these imperatives,
siyasa
required that a supplement be made to the Shari
a in what was known as the
QANUN
, the sultan’s edicts and decrees. Often, the
qanun
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 Shari
a-minded. In these instances, the bid for
legitimacy is unmistakable. But the
qanun
did add to the religious law, especially in areas having to do with public order, the bedrock of any successful regime. Among the most important of these areas were highway robbery, theft, bodily injury, homicide, adultery and fornication (and accusation thereof), usury, taxation, land tenure, and categorically all disturbance of order and peace. With a view toward a strict enforcement of these religious and sultanic laws, the
qanun
permitted
torture (mainly to extract confession from thieves) and the execution of highway robbers by the sultan’s executive authority.

Legalized
usury, extra-judicial
taxes and torture were perhaps the most objectionable pieces of legislation in the view of the
jurists. The latter, along with several
Shaykh al-Islams, often militated against the
qanun
, and particularly, it seems, against the latter two provisions. The jurists’ objections notwithstanding, the
qanun
– in its thin but diverse substance – was mostly seen, and accepted, as an integral part of the legal culture, and as an extra-judicial element that was required – after all – by the
siyasa shar
iyya
itself
.

The Shari
a and the
qanun
had far more in common than they differed upon. True, substantive
qanun
transgressions upon the Shari
a did occur, but they were limited to narrow spheres and the
qadi
s and
mufti
s ignored them whenever they could. More remarkable, however, were the similarities between the two. The
qanun
and
Hanafi law recognized, each in its own sphere but also mutually, a cumulative tradition: the later school texts (and in particular those of the Hanafi school, adopted as the official law of the Ottomans) never abrogated the earlier ones, and the founding fathers’ doctrines continued to be enmeshed in the much later
fatwa
literature and
author-jurist compilations. The
qanun
too was a
cumulative discourse, each sultan propounding his own decrees while largely maintaining the sultanic laws of his predecessors.

To be sustainable, it was in the nature of these cumulative legal traditions to integrate into their structure the viability and necessity of juridical difference. The concept of individual
ijtihad
in the legal schools constituted an analogue to the individual sultanic will that produced different
qanun
s at different times and places. The internal differences exhibited by
the two traditions were clearly intended to accommodate the local and regional differences throughout the Empire. Just as the Shari
a insisted on
local custom as a guiding principle in the application of the law, the
qanun
, in its various compilations, catered to the needs of particular towns, districts and provinces.

Qanunname
s – the written records bearing the
qanun
s – were issued at each of these levels, as well as at the universal level of the Empire. And like the Shari
a law, the
qanun
developed structural mechanisms to accommodate change and to respond to diachronic and synchronic geographical variations. Finally, and no less importantly, both systems viewed their own laws as a “statement of the limits of the tolerable rather than a set of inflexible rules to be imposed regardless of circumstances.”
²

What is striking about the
qanun
, and consistent with the Ottoman policy of allowing the widest scope for Shari
a justice, is the fact that the
qadi
stood as the exclusive agent of the
qanun
’s enforcement. On the ground, he was the ultimate administrator and final interpreter of the
qanun
, which was unwavering in reiterating the decree that no punishment could be meted out without a trial by a
qadi
; and indeed, evidence from court records overwhelmingly shows that the decision to punish was exclusively the
qadi
’s, and that the meting out of penalties was normally the province of executive authority.