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Usurious Piety: The Cash Waqf Controversy in the Ottoman Empire

  • Jon E. Mandaville (a1)

Extract

Among the various institutions and practices singled out as distinctly Ottoman contributions to Islamic civilization, one has drawn surprisingly little comment and analysis. Neither so eye-catching as the devşirme system nor as fundamental as the kanun, it still emerges as an important factor in Ottoman, thence Islamic, history. This is the legitimized practice of usurious piety, the waqf al-nuqūd (pl. awqaf al-nuqud), the establishment of a trust with money the interest from which might pay the salary of a teacher, or preacher, or even unashamedly pass into the pocket of the founder of the trust.

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1 With one notable exception; see Ömer LutfiBarkan's discussion in his ‘Edirne Askeri Kassami'na Ait Tereke Defterleri (1546–1659)’ in Belgeler, 3 (1966), 31–46. His discussion is repeated in Barkan, Ö. L. and Ayverdi, E. H., Istanbul Vakiflar Tahrīr Defteri: 953 (1546) Tarihli (Istanbul 1970), pp. xxxxxxviii.

2 The criticism frequently leveled against traditional Islamic law, that it is characterized by scholastic sclerosis, an inability to respond to change, is certainly inaccurate insofar as the Ottoman period is concerned. For this traditional criticism, see Schacht, Joseph, Introduction to Islamic Law (London, 1964), p. 62 n. 1; Fyzee, Asas A. A., Outlines of Muhammedan Law (3d ed.; London, 1964), pp. 3637; Coulson, N. J., A History of Islamic Law (Edinburgh, 1964), pp. 7, 82. Coulson reflects the typical ‘modernist’ view, that Western modernization alone is responsible for opening the sharia to positive interpretation and application. These authors may be contrasted with Ya'akov Meron (see his ‘The Development of Legal Thought in Hanafi Texts,’ Studia Islamica, 30 [1969], 73–118) who deplores this traditional view (ibid., pp. 89–91) but finds change such as is described in this article to be equally a symptom of legal decadence (ibid., p. 92) because of the normative pluralism, even eclectism, evident in the scholarship of the time (ibid., p. 111). This article indicates that the conservative Ottoman jurists of the sixteenth century would have agreed with him.

3 The cash waqf seems to have been an indigenous product of the flexible Ottoman frontier judiciary. Certainly it was not practiced in the Mamluk empire, nor did it seem to be in Byzantine territories. For Byzantium, seeDuff, P. W., ‘The Charitable Foundations of Byzantium,’ Cambridge Legal Essays (London, 1926), p. 94. I am also indebted to N. Oikonomides of the Université de Montreal for his advice in this matter.

4 Gökbilgin, M. T., XV.–XVI astrlarda Edirne ve Paşa Livasi (Istanbul, 1952), passim.

5 Ibid., pp. 272–273 no. 76.

6 Ibid., pp. 223–224 no. 45.

7 Ibid., pp. 290–291 no. 118.

8 Gökbilgin did not publish the full texts of all the awqaf noted; the kind of property used to establish twenty-three of the ninety-seven awqaf given by him for this period is not indicated.

9 Barkan and Ayverdi, Istanbul Vakiflart Tahrir Defteri: 953 (1546) Tarihli, pp. xxx–xxxviii.

10 In addition to problems of confiscation, embezzlement, and other forms of attrition liable to have taken place between 1456 and 1546, 573 of the 2,517 awqaf (ca. 23 percent) listed in the register lack dates (ibid., p. xxx). Many if not most of these were from the earlier period.

11 Ibid., p. 144 no. 811.

12 Barkan is preparing for publication the province of Hüdavendigār, with its old capital of Bursa (see ibid., p. xxxiv n. 48).

13 For this period and after, Gökbilgin's Edirne is less useful for this study.

14 For the following discussion refer to graph on p. 291.

15 MS Cevdet O.116/5, Belediye Library, Istanbul.

16 Barkan, ‘Edime Askeri,’ p. 34.

17 Suhrawardy, A. al-Ma'mun, ‘The Waqf of MoveablesJournal of the Asiatic Society of Bengal, 7 n.s. (1911), 355358.

18 Ibid., p. 342.

19 The most recent thorough statement on the question of usury, or interest, in Islamic law is that of Rahman, Fazlur, ‘Riba and Interest,’ Islamic Studies, 3 (1964), 143. See also Khan, Mir Siadet Ali, ‘The Mohammedan Laws against Usury and How They Are Evaded,’ Journal of Comparative and International Law, 11 (1929), 233244. For a review of Ottoman treatment of interest, see Çagatay, Nes'et, ‘Riba and Interest Concept and Banking in the Ottoman Empire,’ Studia Islamica, 32 (1970), 5478, as well as his Osmanli Imparatorluǧunda Riba-Faiz Konuşu,’ Vakiflar Dergisi, 9 (1971), 3966. See also Inalcik, Halil, ‘Capital Formation in the Ottoman Empire,’ Journal of Economic History, 29 (1969), 97140.

20 Schacht, , Introduction, pp. 156157. For the mucḍāraba applied in nineteenth-century Palestine, see Firestone, Ya'akov, ‘Production and Trade in an Islamic Context,’ International Journal of Middle East Studies, 6 (1975), 191201.

21 Udovitch, Abraham L., ‘Credit as a Means of Investment in Medieval Islamic Trade,’ Journal of the American Oriental Society, 87 (1967), 261, n. 9; 262.

22 Schacht, , Introduction, p. 156.

23 Qāḍīkhān (d. 1195), Fatāwā (in Suhrawardy, ‘Waqf of Moveables,’ pp. 334335), quoting al-Sarakhsī (d. 1097).

24 MS (personal copy) ff. 151B–152A. For a biography of Mulla Husrev see Babinger, Franz, ‘Husrev, Husrav, Molla,’ Islam Ansiklopedisi, 5 (1950), 605606.

25 The Ṣadr al-Sharī'ah, known popularly after its early fifteenth-century author Ṣadr al-Sharī'ah al-Thānī ʻUbaydullāh al-Maḥbūbī, is a commentary in turn on al-Wiqāya of Burḥān al-Sharīʻah al-Maḥbūbī (seeÇelebi, Katip, Keşf al-Zunun, 2 (Istanbul, 1943), bottom of col. 2021). For a biography of Ahizade, seeAhmed, Taşköprüzade, Şekaik ün-Nuʻmaniye, trans. Mecdi, Mehmet (Istanbul, 1269/18521853), pp. 292293.

26 Dhakhīrat at-ʻUqba fī sharḥ Şadr al-Sharīʻah al-ʻUzma, MS (personal copy) f. 187A-B.

27 Barkan and Ayverdi, Istanbul Vakiflar, p. 100 no. 559; 144 no. 811; 187 no. 1061.

28 Ibid., pp. 199 no. 1137; 411 no. 2403.

29 Ibid., p. 200 no. 1139.

30 It would appear that this was not the issue that led to the dismissal of Çivizade from the office of şeyhülislam in 1541, as has been suggested elsewhere (Pixley, Michael M., ‘The Development and Role of the Şeyhulislam in Early Ottoman History,’ Journal of the American Oriental Society, 96 [1976], 94). Şeyh Bali Efendi, contemporary to the events and very much involved in them, states that the cash waqf controversy was begun by ‘the Military Justice of Rumeli,’ who was opposed by ‘the Mufti’ (i.e., Şeyhülislam). See below p. 303. No source contradicts this.

31 MS Asir Efendi 456, f. 56B Suleymaniye Library, Istanbul.

32 Ebü es-Suud uses the latter suggestion for making a waqf valid and irrevocable in the formula example he gives for a cash waqfiye in his al-Şakk al-ʻārīʻan al-rīb wa'l-shakk, a legal formulary handbook written in 1563 (MS personal copy, f. 229A). The Maʻruzat is published in Milli Tetebbüler Mecmuasi I (2) (1331/1912–13), pp. 337–348. Although several fetvas in the various copies of Ebü es-Suud's fetva collection touch upon the cash waqf, none deals with the question of its general validity.

33 Heyd, Uriel, Studies in Old Ottoman Criminal Law, ed. Menage, V. L. (Oxford, 1973), p. 187 n. I.

34 Ahmed, Taşköpruzade, Şekaik, pp. 446448; Baysun, M. Cavid, ‘Çivi-zade,’ Islam Ansiklopedisi, 3 (1963), 438439.

35 MS untitled risale, Duǧumlu Baba 449/12, Suleymaniye Library, Istanbul, f. 105B.

36 Ibid., ff. 106A-B.

37 Ibid., ff. 106B-108A.

38 Ibid., f. 108B. He cites the ‘Chapter on al-mudayyanāt’ in Dhakhīrat al-ʻUqba of Ahizade for this, a chapter that does not exist in my copy.

39 Ibid., f. 111A.

40 Ibid., f. 109A.

41 Ibid., f. 110B.

42 Ibid., ff. 114A–119B (summarized).

43 MS Duǧumlu Baba 449, Suleymaniye Library, Istanbul, ff. 98B–100A.

44 MS Asir Efendi 459, Suleymaniye Library, Istanbul, f. 55B.

45 Ibid

46 Here, despite Ebü es-Suud's disclaimer of reliance on Zufar, Çivizade has a point in repeating the criticism. In fact, many of the sources cited by Ebü es-Suud as supporting cash waqf on the basis of taʻāmul do so also, or even only, on the basis of Zufar (as, for example, the al-fatāwā al-bazāziya). Çivizade, although he found numerous errors of citation in Ebü es-Suud's essay, missed one clear-cut case; Ebü es-Suud cites al-hidāya (Duǧumlu Baba 449/12, f. 107A) as supporting cash waqf through reliance on Muhammad and taʻāmul, whereas al-hidāya explicitly disallows cash awqaf (see Suhrawardy, ‘Waqf of Moveables,’ p. 340).

47 MS Asir Efendi 459, f. 56 B.

48 For Bali Efendi, see Keskioǧlu, Ö., ‘Bulgaristan'da Bazi Türk Abideleri,’ Vakiflor Dergisi, 8 (1969), 315316; Keskioǧlu, Ö., ‘Bulgaristan'da Türk Vakiflari ve Bāli Efendinin Vakif Paralar hakkinda bir mektubu,’ Vakiflar Dergisi, 9 (1971), 9091;Tahir, Bursali Mehmet, Osmanli Müellifleri, Vol. I (Istanbul 1333/19141915), p. 42.

49 MS Esad Efendi 188, Suleymaniye Library, Istanbul, ff. 38B–43A.

50 Ibid., ff. 43A–44B. Note Bali Efendi's use of emotion-laden words here. Kizilbaş, the word applied to the Shia Safavid enemy; bid'a, the standard criticism of Muslim conservatives, here turned back against them; ḍalātāt (grievous error), the Arabic root of which is used in the exordium of the Qur'an and repeated daily in prayers. Condemnation of firearms as immoral is an attitude best known in connection with the Mamluks, thanks toAyalon's, DavidGunpowder and Firearms in the Mamluk Kingdom (London, 1956), esp. pp. 86 ff.

51 MS Esad Efendi 188, f. 47A; this letter is given in Keskioǧu, ‘Bulgaristan'da Türk Vakiflari…,’ pp. 81–84.

52 Ibid., f. 52A.

53 Barkan has made a strong case for the important role of the sufi orders in the settlement of the newly conquered Rumeli lands; but the lodges of these orders seem seldom to have been established with cash awqaf. Of the 225 selections chosen by Barkan from the land registers of the empire to illustrate his article on this subject, only two from Kutahya and two from Mentaşe refer to interest income (Barkan, Ö. L., ‘Osmanli Imparatorluǧunda bir Iskān ve Kolonizasyon Metodu olarak Vakiflar ve Temlikler: Istila devirlerinin Kolonizator Türk Dervişleri ve Zaviyeler,’ Vakiflar Dergisi, 2 [1942], 316, 320–321). All four are undated.

54 Kufrali, Kasim, ‘Birgivi,’ Islam Ansiklopedisi, 2 (1961), 634635.

55 MS Esad Efendi 615, Suleymaniye Library, Istanbul, f. 104A–B.

56 Published untitled together with several other treatises of Birgevi in a lithograph edition in Istanbul (n.d.), pp. 164–195. Al-sayf al-sārim was written in 1572, a year before his death.

57 Ibid., pp. 194–195.

58 Al-Shaykh Muḥammad Pīr 'Alī al-Birgawī, al-Tarīqat al-muḥammadiya fī bayān al-sīrat al-nabawiya al-aḥmadiya (Istanbul, 1268/1851–1852), pp. 259–260.

59 As, e.g., Katip Çelebi did, and paraphrasing him the historian Naima, in their discussion of the ‘Kadizadeliler’ episodes. Historians today still occasionally follow this seventeenth-century view of sixteenth-century affairs; see the treatment of the cash waqf and Birgevi inInalcik, Halil, The Ottoman Empire: The Classical Age, 1300–1600 (New York, 1973), pp. 183185. It might be noted that Luther himself, in 1540, in his last of many attacks on usury from the pulpit, exempts from attack the interest on loans made from church income (‘widderkeufflicher Zins’) (Weimarer Ausgabe, 51 [1883], 333). I am indebted to my colleague Susan Karant-Nunn for this reference.

60 The only substantial source of information on credit and loan practices is the town and city sharia court records. Where they have been published and analyzed, indebtedness to the cash waqf has been found to be commonplace. See, e.g., Jennings, Ronald C., ‘Loans and Credit in Early 17th Century Ottoman Judicial Records,’ Journal of the Economic and Social History of the Orient, 16 (1973), 203209 for Kayseri, 1600–1625. A review of the published (in summary) portions of the Ankara records reveals a similar pattern (Ongan, Halit, Ankaranln Numerali Şer'iye Sicili [Ankara, 1958]; idem, Ankaramn Numerali Şer'iye Sicili [Ankara, 1958]. And on the European side of the Empire, Volumes 7 and 8 (1641) of the records of Monastir reveal that of 176 villages in the judicial district, 90 were collectively in debt to cash waqfs (I owe this information to my friend and dedicated Ottomanist Bruce McGowan).

61 Court records there are nearly silent on the practice. Kāmil b. Ḥusayn al-Ghazzī, in his list of awqaf abstracted from the Aleppo records, notes one only from each of the sixteenth, seventeenth, eighteenth, and nineteenth centuries; in none of these cases is interest rate mentioned (Kāmil b. Husayn al-Ghazzī, Nahr al-dhahab fī tarīkh al-ḥalab, Vol. III [Aleppo, 1342/1923–1924], pp. 609, 625, 630). For all of its commonplace occurrence in Anatolia and Rumeli the cash waqf is not mentioned in Gibb, H. A. R. and Bowen's, HaroldIslamic Society and the West, Vol. I, pts 1 and 2 (London, 1950, 1957), in their chapter on waqf (pt. 2 pp. 165–178). Might this be because of the author's greater interest and experience in the affairs of the Arab provinces?

62 Quoted in Suhrawardy, ‘Waqf of Moveables,’ p. 405. Ibn 'Abidīn cites the earlier al-Nahr al-fāʻiq by Sirāj al-Dīn Ibn Nujaym (d. 1596), another Syrian, for this opinion (see Keşf II col. 1516 for al-nahr).

63 Note the cases cited above in n. 58, where all four endowers are probably Turks.

64 Quoted in Suhrawardy, ‘Waqf of Moveables,’ p. 347, and see also p. 379.

Usurious Piety: The Cash Waqf Controversy in the Ottoman Empire

  • Jon E. Mandaville (a1)

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