The hostility between the Ottoman and Safavid dynasties arose in what was – to a degree – a shared cultural space, with the consequence that winning the allegiance of the populations of Anatolia and Azerbaijan, and identifying their followers and enemies within them, was a major concern of both dynasties. During the wars of the sixteenth century, the Ottoman sultans attempted to exploit the precarious loyalties of the ḳızılbaş amīrs and their retinues in Iran, while the Safavid shahs attempted to foment rebellion among the ḳızılbaş villagers and tribesmen in Ottoman Anatolia, who professed allegiance to the shah. The Ottoman solution to the ḳızılbaş problem was to persecute suspect groups and execute their leaders, and to try to eradicate the sect altogether by defeating and killing the shah in battle: the mirage of a second battle of Chaldiran was constantly before the sultan's eyes. The goal, in effect, was to eliminate the shah and his followers.

This required a definition of the ḳızılbaş heresy that would identify its adherents, justify their persecution and legitimise war against their leader, the Safavid shah. This undertaking was not entirely straightforward since the shah and his adherents professed to be Muslims, and the beliefs and rituals of ḳızılbaş-ism must have had much in common with the doctrines and practices of other heterodox groups in Anatolia that presented no threat to Ottoman dynastic rule. It was, furthermore, hard to justify warfare against Muslims and difficult to counteract the shah's charisma and appeal to popular religious sentiments. It was equally difficult to motivate soldiers, many of whom harboured ḳızılbaş sympathies, to fight either against the shah himself or against his followers within Ottoman borders.

The first person to provide a coherent definition of the heresy was, it seems, the otherwise unknown mufti Sarı Görez. His fatwa, apparently issued for Selim I before the Chaldiran campaign of 1514, is important, since it is likely that at the time of its issue the Ottoman authorities had little idea of what the ḳızılbaş actually believed, and Sarı Görez was the first to enumerate the ways in which they deviated from orthodoxy:

• 1. They deride the sunna and sharī‘a of the Prophet.

• 2. They declare ḥarām to be ḥalāl.

• 3. They despise and burn the Qur’ān and books of fiqh.

• 4. They insult the ‘ulemā and the pious.

• 5. They destroy mosques.

The functions of Ottoman government were, in essence, to raise revenue with which to support the sultan’s army and court, to conduct war and relations with foreign powers, to uphold law and order, and to support what the ruling elite regarded as the right religion. Most day-to-day public functions – for example, the construction and maintenance of mosques, education, welfare of the poor, the provision of a water supply in towns and the upkeep of bridges and cemeteries – were the responsibility of vakıfs (endowments of land or other sources of income used for the charitable purpose defined by the founder), established through the private beneficence of individuals. The founders of the greatest vakıfs were, it is true, the sultans and their ministers, and their foundations – notably the imperial mosques in Istanbul – served to project the grandeur and munificence of the dynasty. Nonetheless, they were legally autonomous institutions and, strictly speaking, outside the realm of government. The scope of Ottoman government was therefore limited but in this respect no different from the governments of other pre-modern states. Furthermore, while the problems which the Ottoman government faced between 1453 and 1603 may have grown in scale and complexity, the basic functions of government remained unchanged. Equally, the institutions and offices that were in place during the reign of Mehmed II (r. 1451–81) were still in place and, in appearance, largely unchanged in the reign of his descendant Mehmed III (r. 1595–1603).

Introduction

During the course of the tenth/sixteenth century, the Ottoman empire emerged as a world power, both in terms of its real military and political strength, and in terms of the claims of the Ottoman dynasty to universal sovereignty. During the previous century, Meḥmed II (r. 855–86/1451–81) had consolidated Ottoman control of much of Anatolia and the Balkan Peninsula through conquest and through the removal of local dynasties or their absorption into the Ottoman ruling establishment. This process of assimilation continued during the reign of Meḥmed’s son Bāyezīd II (r. 886–918/1481–1512). Ottoman territory as it stood at the end of Meḥmed II’s reign remained the core territory of the empire during the tenth/sixteenth century and later. Viziers and other members of the military–political class were usually of Rumelian origin, that is from the Balkan Peninsula. It was only during the late tenth/sixteenth and eleventh/seventeenth centuries that men of Caucasian origin emerged as rivals to the Rumelians in the contest for political office. The legal–religious elite tended to come from Anatolian Turkish families, as did the secretaries that manned the sultan’s chancellery. It was also Rumeli and Anatolia that furnished the majority of troops and crews for the imperial army and imperial fleet, and provided most of the materials and cash to support military and naval enterprises. Furthermore, the conquest of Constantinople in 857/1453 and its subsequent rebuilding had provided the empire with a permanent capital situated between Rumeli and Anatolia.

At the time of his death in 1998, Norman Calder was working on a book that was to form a sequel to his brilliant and controversial Studies in Early Muslim Jurisprudence. The four chapters presented here are the outcome of his research on this project, and although they are only part of the book that Norman had envisaged, they nonetheless make a substantial addition to the scholarly literature on classical Islamic jurisprudence. Their importance and position within this literature is the subject of Professor Robert Gleave's Introduction, while his Afterword provides a conspectus of Norman's intellectual and academic development as reflected in an important but easily overlooked part of his oeuvre.

The chapters were complete at the time of Norman's death, and my role has been strictly editorial, little more than incorporating hand-written material into the body of the text and providing full source references. I am particularly grateful to Robert Gleave for undertaking to write the Introduction and Afterword, and I must also record my thanks to Mustafa Baig for his bibliographic and technical help.

Introduction

The analysis and presentation of divine law, in an Islamic context, took place primarily in the literary genre known as furūʿ al-fiqh (branches of jurisprudence). There, the law was presented as, essentially, a permanent system of norms and values, unchangingly valid. Since the historical reality of Muslim societies included change and diversity, it is necessarily the case that the relationship between the law as an intellectual structure and the law as realised in social practice was oblique. It was a matter of degrees and kinds of difference. Works of furūʿ can be classified as of two major types, mukhtasars or epitomes of the law, and mabsūts or expansums. The mukhtasar characteristically contains a succinct and highly compressed sequence of norms, loosely bundled under topical headings: a structured framework or skeleton of the law. The mabsūt justifies and explains the law and multiplies its details. In its most characteristic form, it is a commentary on a mukhtasar. There are other types of furūʿ literature (notably the treatise or risāla on a single topic or bundle of topics of the law), some of which will be identified in the following pages; and it is possible to distinguish different tendencies within the broad typology of mukhtasar and mabsūt. The conditions that govern the genre as a whole include the fundamental condition of loyalty to school tradition.

Introduction

A mufti is a scholar who responds to specific questions about the law, different therefore from the writing jurist who gives a general and structured assessment of the law. The mufti's response is a fatwa, the questioner or petitioner, a mustaftī. The task, or process, of giving a fatwa is iftāʿ. A fatwa can be sought and given orally, but, more typically, the question is given in written form and a written reply is elicited. The two components of a written fatwa are the masʿala or question and the jawāb or answer. As a written item, the combination of masʿala and jawāb is called a fatwa, though the term might more strictly be applied only to the jawāb. In some contexts, it was necessary to distinguish the ideal fatwa – which could be issued only by the highest ranking jurists – from the actual practice. In this case normal linguistic usage was deemed to describe an imperfect realisation of the ideal. The processes of iftāʿ, when analysed, were always found to depend on hierarchy, a grading of scholars according to their knowledge, the lower grades dependent on the higher grades. The highest grades were invariably located in the persons of the founding Imams and their companions.

Introduction

For the history of Shāfiʿī fiqh, the works of Yahyā b. Sharaf Muhyī al-Dīn al-Nawawī (631–76/1233–77) offer a unique point of convergence, for he analysed and summarised all that came before, and his work was the starting point for all that came after. He was a contemporary of Mawsilī, the most formal and classical of the Hanafī authors studied in the previous chapter. His academic career was spent in Damascus, during the early Mamluk period. He was trained at various madrasas, and became a teacher, associated in particular with the Dār al-Hadīth al-Ashrafiyya in Damascus. He died at the age of 44, having produced a large corpus of academic works of which the most important for the history of fiqh are the Majmūʿ (a commentary on the Muhadhdhab of Abū Ishāq Ibrāhīm b. ʿAlī al-Shīrāzī, d. 476/1083), the Rawda (a summary, with additions, of the Sharh al-Wajīz of Abūʿl-Qāsim ʿAbd al-Karīm b. Muhammad al-Rāfiʿī, d. 623/1227?), the Minhāj al-Tālibīn (a mukhtasar, based on an earlier mukhtasar by al-Rīfiʿī), and the commentary on the Sahīh of Muslim. Each of these will be discussed in this chapter, in Sections 1, 2, 3 and 4, respectively. His scholarship, conforming to the patterns of the time, had a broader range than just fiqh: Subkī said that he was skilled in a variety of sciences, including fiqh, hadith, biographies, language and tasawwuf.

Introduction

For each of the three functionaries of the law there is a corresponding body of literature which exemplifies their activities. For the academic jurist, it is the literary genres of furūʿ al-fiqh and (to a lesser extent) usūl al-fiqh. For the judge, it is the court records (sijills). The latter had a practical importance as a record of decisions and judgements, but had no direct significance as an articulation of divine law; they did not constitute precedents; they were not a part of the training of jurists or judges. Works of furūʿ, on the other hand, were a record of the madhhab, of ikhtilāf and of the arguments that grew out of these; they were the measure of the law, and the prime means of education for judges and jurists. They were also the major component of a ‘liberal’ education, in so far as that was known to pre-modern Islamic societies. The literary products associated with the mufti were the fatwa, the fatwa collection and the analytic works, or manuals of conduct (adab al-muftī) which explained and justified the mufti's task. This chapter is concerned with the fatwa, its functions and its transformations.