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Dhimmīs in the Muslim Court: Legal Autonomy and Religious Discrimination

Published online by Cambridge University Press:  29 January 2009

Najwa Al-Qattan
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Extract

This article will examine the legal status of dhimmīs (non-Muslims) as documented in the sijills of the shariʿa courts of Ottoman Damascus in the 18th and 19th centuries. It will focus on two related aspects of dhimmī legal life: the extent of the judicial autonomy granted to non-Muslims and the kind of justice that dhimmīs obtained at the Muslim court.

Type
Research Article
Information
International Journal of Middle East Studies , Volume 31 , Issue 3 , August 1999 , pp. 429 - 444
Copyright
Copyright © Cambridge University Press 1999

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References

NOTES

1 Radbaz, Sheʾlot u Tshuvot (Responsa) (Warsaw, 1882), I, nos. 29, 114, quoted in Shmuelevitz, Aryeh, The Jews of the Ottoman Empire in the Late Fifteenth and the Sixteenth Centuries: Administrative, Economic, Legal and Social Relations as Reflected in the Responsa (Leiden: E. J. Brill, 1984), 51.Google Scholar

2 The original research for this article is based on several thousand dhimmī cases extracted from one hundred sijill volumes roughly covering the period 1775 to 1860. A substantial part of this research was carried out at the University of Jordan's Markaz al-Wathāʾiq waʾ-Makhtūtāt, where the center keeps microfilm copies of a large number of Damascus sijills. Reference to documents obtained from the center are, therefore, followed by the appropriate microfilm catalogue number, but not by document and page numbers, which in the majority of cases were illegible. Two additional notes are in order. First, a number of sijill cases cited in this paper are identified as “Aleppo” cases on account of a filing error at the center in Jordan—they are in fact Damascene sijills. Second, in the sijill cases cited, the abbreviations “b.,” “w.,” and “bt.” refer to ibn (son of), watad (dhimmī son of), and bint (daughter of), respectively.

3 See Inalcik, Halil, “Ottoman Archival Material on Millets” in Christians and Jews of the Ottoman Empire: The Functioning of a Plural Society, ed. Braude, Benjamin and Lewis, Bernard, 2 vols. (London and New York: Holmes and Meier Publishers, 1982), The Central Lands, 2:437.Google Scholar

4 See Shmuelevitz, , Jews of the Ottoman Empire, 60–61, 75Google Scholar, and Faroqhi, Suraiya, Men of Modest Substance: House Owners and House Property in Seventeenth-Century Ankara and Kayseri (Cambridge: Cambridge University Press, 1987), 183, who suggests that the dhimmis of 17th-century Ankara and Kayseri regularly registered their sale deeds with the court to obtain written proof of ownership against future liability in which they, as dhimmis, would not be able to testify against Muslims. This is a somewhat ironic development given the tenuous evidentiary nature of written proof in shariʿa doctrine.CrossRefGoogle Scholar

5 In fact, intra-communal cases outnumbered inter-communal cases on the order of two to one.

6 Shmuelevitz, , Jews of the Ottoman Empire, 43–44.Google Scholar Adnan Muhammad Bakhit (“The Christian Population of Damascus in the Sixteenth Century,” in Christians and Jews, ed. Braude, and Lewis, , 2:27) and Abdul-Karim Rafeq (“The Syrian cUlama, Ottoman Law, and Islamic Shariʿa,” Turcica 26 [1994]: 10) have both argued that Ottoman qadis enforced the registration of marriages, dhimmi as well as Muslim, in court in order to collect the marriage fee (ʿarūs resmī). The relatively small number of registered Muslim and dhimmi marriages challenges this as an explanation.Google Scholar

7 In fact, the distinction between the two is often blurred at the level of function as well as at the level of titles. See, for example, Cohen, Amnon, Jewish Life Under Islam: Jerusalem in the Sixteenth Century (Cambridge, Mass.: Harvard University Press, 1984), 48–49CrossRefGoogle Scholar, and Russell, Alexander, The Natural History of Aleppo, 2 vols. (London: G. G. & J. Robinson, 1794), 2:62.Google Scholar

8 Hacker, Joseph R., “Jewish Autonomy in the Ottoman Empire: Its Scope and Limits: Jewish Courts from the Sixteenth to the Eighteenth Centuries,” in The Jews of the Ottoman Empire, ed. Levy, Avigdor (Princeton, N.J.: Darwin Press, 1994), 185.Google Scholar

9 Shmuelevitz attributes the matter to a clear Ottoman regulation regarding the right of Jewish individuals to seek the shariʿa courts on all occasions (Jews of the Ottoman Empire, 43–44); Pantazopoulos stresses Ottoman equivocation regarding the matter (Pantazopoulos, N. J., Church and Law in the Balkan Peninsula During the Ottoman Rule [Amsterdam: Adolf M. Hakkert, 1984], 103–7). Hacker argues that dhimmi courts had no official standing in the empire (“Jewish Autonomy,” 183–84).Google Scholar

10 See Cohen, , Jewish Life Under Islam, 36–58Google Scholar, and Marcus, Abraham, Middle East on the Eve of Modernity: Aleppo in the Eighteenth Century (New York: Columbia University Press, 1989), 108–9, who appear to assume it.Google Scholar

11 See Hacker, “Jewish Autonomy,” 183, who appears to assume that Christians, unlike Jews, enjoyed an officially sanctioned legal autonomy between the 16th and 18th centuries; Shmuelevitz, Jews of the Ottoman Empire, 43, who argues that until the 18th century, the church courts were limited to matters of personal religious law, while 15th- and 16th-century Jewish courts dealt with all but criminal cases; Pantazopoulos, Church and Law, 19, 43, 56–57, 103–7, who maintains that until the 18th century, the Ottomans limited the church's authority to religious matters; Inalcik, “Ottoman Archival Material,” 440, who argues that until the 18th century, the authority of the church leadership was restricted to matters dealing with church organization and property; and Clogg, Richard, “The Greek Millet in the Ottoman Empire,” in Christians and Jews, 1:186–87, who connects judicial authority to the rise of the millets.Google Scholar

12 Braude, Benjamin, “Foundation Myths of the Millet System,” in Christians and Jews, 1:69–88.Google Scholar

13 Ibid. See also Cohen, Amnon, “On the Realities of the Millet System,” in Christians and Jews, 2:15Google Scholar, and Shmuelevitz, , Jews of the Ottoman Empire, 15–30, whose argument is suggestive of a historiographic “foundation myth” reversed—in other words, that the limited judicial autonomy that the Jews of the early Ottoman period may have enjoyed is erroneously forwarded into the later centuries and simply assumed.Google Scholar

14 Shmuelevitz, , Jews of the Ottoman Empire, 49–50Google Scholar; Cohen, , Jewish Life Under Islam, 116, 126, 131.Google Scholar

15 Jennings, Ronald C., “Zimmis (non-Muslims) in Early 17th Century Ottoman Judicial Records: The Sharia Court of Anatolian Kayseri,” Journal of the Economic and Social History of the Orient 21, 3 (1978): 251, 271, 274Google Scholar; idem, Christians and Muslims in Ottoman Cyprus and the Mediterranean World, 1571–1640 (New York: New York University Press, 1993), 69, 133Google Scholar; and Faroqhi, , Men of Modest Substance, 154,200–210.Google Scholar

16 Hacker, , “Jewish Autonomy,” 181; Marcus, Middle East, 108–9.Google Scholar

17 For a discussion of the limitations of the Responsa as sources, see Shmuelevitz, Jews of the Ottoman Empire, 1–9.

18 ln this context, the occasional appearance of members of the Christian clergy at court is noteworthy insofar as they attest to the role of the Muslim court in dhimmī affairs. See, for example, sijill 257/p. 15/ no. 21/15 Rabīʿ I 1221 (1806), according to which a qissis (priest) went to court in order to conclude a purchase and sale agreement of household items with his own wife.

19 See sijill 298/Aleppo film 241/18 Rabīʿ 1 1237 (1821); sijill 123/film 222/pp. 433–34/11 dhuʾl- Qaʿda 1200 (1786); sijill 240/pp. 112–13/no. 198/17 dhuʾl-Qaʿda 1221 (1807); sijill 254/pp. 521 -22/no. 981/11 Rabiʿ 1 1220 (1805); sijill 707/film 217/18 dhuʾl-Qaʿda 1201 (1787); sijill 301/p. 348/no. 1380/ 19 Muharram 1239 (1823); and sijill 270/p. 280/no. 459/12 Shawwāl 1225 (1810).

20 See Shmuelevitz, , Jews of the Ottoman Empire, 43–44, 65–68. See also Hacker, “Jewish Autonomy,” 182.Google Scholar

21 Pantazopoulos, , Church and Law, 53–57, 59, 65–66, 93, 107Google Scholar. See also Shmuelevitz, , Jews of the Ottoman Empire, 66–67, 69Google Scholar, and the instances mentioned in Cohen, , Jewish Life Under Islam, 110–39.Google Scholar

22 Afifi, Mohammad, “Reflections on the Personal Laws of Egyptian Copts,” in Women, the Family, and Divorce Laws in Islamic History, ed. Sonbol, Amira El Azhary (Syracuse, N.Y.: Syracuse University Press, 1996), 203–6.Google Scholar On added clauses to the marriage contract, see Hanna, Nelly, “Marriage Among Merchant Families in Seventeenth Century Cairo,” in Women, the Family, 143–54.Google Scholar

23 See Shmuelevitz, , Jews of the Ottoman Empire, 66, 69.Google Scholar

24 Sijill 225/film 211/3 Ramaḍān 1195 (1781) and sijill 257/p. 393/no. 694/10 dhuʾl-Hijja 1221 (1807). For another example of a simple ṣadāq case, see the case of Katrin bt. Musa al-Muradi and Khalil w. Mikhail al-Shaghuri [sijill 240/p. 125/no. 217/7 dhuʾl-Hijja 1221 (1807)]. See also, sijill 218/film 193/12 Muharram 1206 (1791); sijill 298/film Aleppo 214/19 Shawwāl 1236 (1821); sijill 174/film 209/12 Rabīʿ II 1180 (1766). For an example of a ṣadāq from a rural area, see the case from the village of al-Jadida (sijill 212/film 225/12 Ramadān 1196 [1782]).

15 Sijill 300/film 191/p. 137/10 Rablʿ I 1238 (1822); see also sijill 300/film 191/p. 141/16 Rabīʿ II 1238 (1822). Marital eligibility for divorced and widowed women involved a waiting period (ʾidda) to insure that the woman was not with child.

26 Other cases touching on divorce involved more sensitive issues, as illustrated by the case of a Christian man, Fadlallah w. Hanna Zughaib, who appealed to the qadi against his wife, Mariam bt. Ilyas Kasarni, for denying him sexual intercourse even though he had paid her ṣadāq. Because he was unable to prove his claim in court, the qadi ordered him not to harass his wife (sijill 300/film 191/p. 227/11 Rajab 1238 [1823]).

27 Sijill 301/p. 362/no. 1439/8 Shaʿbān 1239 (1824).

28 Sijill 209/film 210/12 Shaʿbān 1194 (1780). See also Sijill 213/film 225/4 Jumādā I 1196 (1782).

29 Sijill 21 I/film 225/15 Rablʿ II 1195 (1781). See also, Sijill 216/film 225/16 Jumādā I 1197 (1783), for an example from a village in Hawran. On the different types of divorce, see Tucker, Judith E., In the House of the Law: Gender and Islamic Law in Ottoman Syria and Palestine (Berkeley: University of California Press, 1998), 78–112.Google Scholar

30 Sijill 216/film 225/11 Shaʿbān 1197 (1783). This case is of further interest because the woman was accompanied by her father and shaykh al-hāra (the elder of the Jewish neighborhood) Musa w. Khadr, suggesting that her act of seeking divorce in the Muslim court was not considered reprehensible in communal terms.

31 For a concise and fascinating discussion on Hanafi law and faskh divorce—the annulment of marriages deemed defective—see Tucker, , In the House of the Law, 81–87. Tucker points out that Hanafi law granted annulment on several grounds—including a husband's impotence—but not a husband's failure to support his wife. However, Hanafi courts recognized such annulments when granted by Shafiʿi and Hanbali judges. Interestingly, the two cases mentioned later involved a Hanbali and a Shafici judge, respectively.Google Scholar

32 Sijill 257/pp. 41–42/no. 73/19 Rabiʿ II 1220 (1805); see also Sijill 21 I/film 225/14 Jumādā I 1195 (1781).

33 Sijill 270/p. 202/no. 229/7 Shaban 1225 (1810). See also Sijill 204/p. 69/no. 157/3 Jumada II 1192 (1778), in which a Jewish woman, Qamar bt. Yahya al-Jajati, sued her brother cUbaid over her share of an inheritance froʿm their deceased mother.

34 Sijill 301/p. 144–45/22 Ṣafar 1239 (1823).

35 Sijill 707/film 217/Jumādā II 1197 (1783). For further examples of dhimmi disputes over shariʿaarbitrated inheritance, see Sijill 21 I/film 225/9 Shaʿbān 1195 (1781); Sijill 21 I/film 209/10 dhuʾl-Qaʿda 1194 (1780); Sijill 173/film 209/10 Rabīʿ II 1180 (1766); Sijill 21 I/film 209/15 dhuʾl-Hijja 1194 (1780); jp/217/fflml 93/mid-Muharram 1199 (1784); Sijill 204/p. 68/no. 155/13 Jumādā I 1192(1778); Sijill 204/ p. 69/no. 157/3 Jumādā II 1192 (1778). It was apparently not uncommon for some dhimmis to misrepresent either the law or their own family relationships in fraudulent attempts to inherit from others. See, for example, Sijill 508/p. 18/no. 30/14 Shawwal 1276 (1860).

36 For some examples of the hundreds of sale and rental documents in which reference is made to sharica rules of inheritance (al-farīḍa al-sharʿiyya), see Sijill 123/film 222/pp. 266–67/2 Jumādā II 1200 (1786) and Sijill 270/p. 236/no. 262/9 Ramadān 1225 (1810).

37 For examples from other cities, see Marcus, , Middle East, 108–9, 210Google Scholar; Cohen, , Jewish Life Under Islam, 133Google Scholar; and Layish, Aharon, “The Sijill of Jaffa and Nazareth Shariʿa Courts as Source for the Political and Social History of Ottoman Palestine,” in Studies on Palestine During the Ottoman Period, ed. Macoz, Moshe (Jerusalem: Magnes Press, 1975), 531. Material cited by Shmuelevitz, Jews of the Ottoman Empire, 67, 69, from the city of Salonica suggests that Jews routinely went to the shariʿa courts over inheritance. The author also notes that the Jewish authorities sometimes made concessions in the application of Jewish law (by conceding some share of the inheritance to daughters, for example) in order to forestall recourse to the Muslim court.Google Scholar

38 The documents themselves, needless to say, leave no record of injustice or bribery, but then, as Marcus has insightfully pointed out, the consistency of the qadis' rulings—especially when viewed over a number of decades—suggests that justice was in fact usually rendered. The court system's own “institutional controls”—witnesses, men with vested interests, and litigants familiar with the law—all militated against gross abuse (Marcus, Middle East, 111–13). This is not to deny the ignorance and corruption often attributed to the courts. It is to say that allegations of widespread abuse, particularly when based on foreign consular and travel literature, should be critically appraised, especially in view of the literature's focus on dhimml litigants as exclusive targets. See, for example, Maʿoz, Moshe, Ottoman Reform in Syria and Palestine, 1840–1861: The Impact of Tanzimat on Politics and Society (Oxford: Clarendon Press, 1968), 154.Google Scholar

39 Sijill 210/film 209/5 dhu ʾ1-Hijja 1193 (1779) and Sijill 257/pp. 177–78/no. 264/2 Jumādā II 1221 (1806). For similar cases, see Sijill 389/pp. 2–3/no. 2/17 Shaʿbān 1261 (1845); Sijill 707/film 217/Muharram 1197 (1782); Sijill 240/p. 141/no. 214/12 dhu ʾ1-Hijja 1221 (1807); Sijill 301/pp. 117–18/16 dhu ʾl- Hijja 1238 (1823). See also Sijill 213/film 225/5 Muharram 1196 (1781); Sijill 21 I/film 225/2 Ramadān 1195 (1781); Sijill 298/film Aleppo 214/13 Rajab 1236 (1821), and Sijill 21 I/film 225/6 Jumādā I 1195 (1781).

40 Syi7/ 173/film 209/end of Rablʿ II 1180 (1766) and Sijill 257/p. 198/no. 309/27 Jumada II 1221 (1806).

41 Sijill 707/film 217/19 Jumādā I 1198 (1784).Google Scholar Justice was also upheld in several other similar cases: see, for example, sijill 322/p. 215/no. 474/10 Shacban 1247 (1832).Google Scholar

42 Sijill 326/film 201/no. 20/15 Jumādā I 1249 (1833).Google Scholar See also sijill 326/film 201/15 Rabrʾ II 1249 (1833) for a similar case involving a Christian woman whose claims against a Muslim (the nāzir of the treasury) were upheld by the court.Google Scholar

43 DhimmĪ testimony and oaths were not, according to the Hanafi school, valid against Muslims. Hanafi doctrine accepted dhimmī testimony against other dhimmīs not only because “all dhimmīs are one community of infidels,” but also in the interest of justice, since most dhimmī business dealings involved other dhimmīs (Fattal, Antoine, Le Statut légal des non-musulmans en pays d'Islam [Beirut: Imprimerie Catholique], 361–65).Google Scholar

44 Compare with Jennings's similar findings for Kayseri, in “Zimmis” 257, 263.Google Scholar For a detailed discussion of the evidentiary value of dhimmī witnessing and oath and the attitude of the different legal schools, see Fattal, , Le Statut légal, 191–203, 365.Google Scholar For a provocative study of the dhimmī witness based on Ottoman fatwa literature, see Grignaschi, Mario, “La Valeur du temoignage des sujets non-musulmans (dhimmī) dans l'empire ottoman,” in Recueil de la Société Jean Bodin pour l'Histoire Comparative des Institutions 18, 3 (1963): 211–324.Google Scholar

45 Sijill 509/p. 103/no. 235/4 Rabiʾ II 1277 (1860).Google ScholarSee also sijill 301/p. 15 I/no. 631/19 Muḥarram 1240 (1824).Google Scholar

46 The same procedure was administered when both parties were Muslims. Refusal to testify under oath was interpreted as proof of fraudulence. Compare Cohen, , Jewish Life Under Islam, 122–23, for similar practices in the Jerusalem courts.Google Scholar

47 For instances of the “Jewish” oath, see sijill 204/p. 69/no. 157/3 Jumādā II 1192 (1778):Google Scholarḥalafa biʿllāh al-ʾaĪim munazzil al-tawra cala sayyidina Musa (he swore in the name of God, the Great, He Who sent the Torah to the Prophet Moses); sijill 204/p. 68/no. 155/13 Jumādā II 1192 (1778).Google Scholar For an example of the “Christian” oath, see sijill 250/p. 157/no. 257/25 Safar 1217 (1802),Google Scholarḥalafa biʾllāh ta ʾālā al-ʿaĪim wa-munazzil al-injil ʿalā sayyidinā ʿIsa (he swore in the name of God, the Great, He Who sent the Gospel to the Prophet Jesus). Compare with Hegyi, Klara, “The Terminology of the Ottoman-Turkish Judicial Documents on the Basis of the Sources from Hungary,” Ada Orient 30 (1965): 198.Google Scholar

48 Compare Shmuelevitz, Jews of the Ottoman Empire, 48, according to which Ottoman qadis of the early period regularly had Jewish courts administer the Jewish oath.Google Scholar

49 In contrast to the Maliki school, which positively prohibits mention of the Bible at court, Hanafi (and Shafiʾi) doctrine allowed Jewish and Christian oaths (Fattal, , Le Statut légal, 365).Google Scholar

50 See Jennings, , Christians and Muslims, 71,Google Scholar according to which “when [dhimmī] formal complaints were made at court, they were almost always made in the form: I want my complaint to be considered in accordance with the sharia.” Fattal notes that a distinction should be made between the question of what law applies to dhimmīs in the Muslim court and what authority the court holds in inter-dhimmī cases (Le Statut legal, 352).Google Scholar

51 The Muslim courts considered dhimmī marriages valid as long as they conformed to the dictates of the relevant dhimmī religion. This was true even when such marriages did not follow shariʿa law regarding witnessing and ʾidda. In addition, a dhimmī couple separated through a triple divorce could not remarry until the wife had married (and divorced) another. Should they remarry otherwise, the qadi had the authority to invalidate their union, even when both wished to stay married. However, the courts were not to consider cases involving the ownership and consumption of alcohol and pork (Fattal, , Le Statut légal, 128–29).Google Scholar

52 See Ginzburg, Carlo, The Cheese and the Worms: The Cosmos of a Sixteenth Century Miller, trans. John, and Tedeschi, Anne (New York: Penguin Books, 1982), ix.Google Scholar

53 For an interesting comparison, see Goitein, S. D., “The Documents of the Cairo Geniza as a Source for Islamic Social History,” in Studies in Islamic History and Institutions, ed. Goitein, S. D. (Leiden: E. J. Brill, 1966). The Geniza collection includes not only records of rabbinic courts in Fatimid times but also evidence that the Jews frequently used the qadi courts either instead of or in conjunction with the latter (pp. 283, 291).Google Scholar

54 Hallaq, Wael B., “The Qadi Diwan (Sijill) Before the Ottomans,” Bulletin of the School of Oriental and African Studies 61, no. 3 (1998), makes a compelling case against necessary connections between lost archives and negative arguments concerning the existence of related institutions.CrossRefGoogle Scholar

55 See Zenner, Walter P., “Jews in Late Ottoman Syria: Community, Family and Religion,” in Jewish Societies in the Middle East: Community, Culture, and Autonomy, ed. Deshen, Shlomo and Zenner, Walter P. (Lanham, Md.: University Press of America, 1982), 188.Google Scholar

56 See, for example, Shmuelevitz, , Jews of the Ottoman Empire, 49–50;Google ScholarCohen, , Jewish Life Under Islam, 116, 126, 131;Google ScholarZenner, , “Jews in Late Ottoman Syria,” 188;Google ScholarRussell, , Natural History, 2: 61–62.Google Scholar

57 Hacker, among others, has suggested that the extent of legal autonomy available to Ottoman Jews has been exaggerated, thanks primarily to European Jewish travelers who found it impressive compared with what they themselves experienced at home. Additionally, one can speculate about the relationship between the power and status of dhimmī communities, on the one hand, and the extent of legal autonomy, on the other. For a good comparison, see Amnon Cohen, who notes that the Jerusalem rabbinical authorities of the 16th century sought to excommunicate those who disobeyed, and Goitein who points out that even in Fatimid Cairo, where the Jewish community was quite cohesive, the authorities still had to resort to both public pressure and the threat of excommunication to prevent Jews from using the Muslim court (Goitein, S. D., A Mediterranean Society: The Jewish Communities of the Arab World as Portrayed in the Documents of the Cairo Geniza, 3 vols. [Berkeley: University of California Press, 1971] 2: 398–400).Google Scholar

58 Uriel Heyd notes that the term bidʾat (innovation) was also used to refer to innovations in kanun (Studies in Old Ottoman Criminal Law, ed. Menage, V. L. [Oxford: Clarendon Press, 1973], 187).Google Scholar

59 Fattal, , Le Statut légal, 357–58.Google Scholar

60 Compare with Jennings's conclusions regarding the Kayseri courts' treatment of dhimmīs in “Zimmis,” 285–87. Here, as elsewhere, Jennings stresses that the law as applied in the Kayseri court was one law—a law intended to serve everybody's needs. See also Jennings, “Limitations of the Judicial Powers of the Kadi in 17th C. Kayseri, Ottoman,” in Studia Islamica 50 (1979): 169–70.Google Scholar