The following content was written as a paper for a graduate history course on the Ottoman Empire. It was the final paper, so I didn’t see the results of my professor’s critique, but I finished the course with an A-. That takes into account factors other than just this paper, so take what’s written with a grain of salt. My personal opinion is that I could have (and should have) incorporated more sources, and more fully incorporated ideas from the sources I did use. I perhaps should have focused more on how law was practiced in the Ottoman Empire, and a bit less on the legal foundation for those laws in Islam.

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Women’s status in the Islamic legal structure of the Ottoman Empire is a complicated issue, the examination of which does not lead to solid, black and white conclusions. The Ottoman Empire as a political entity spanned a vast territory and existed for approximately six-hundred years, making it impossible to say precisely how women were treated in the Ottoman legal structure as a whole. Beyond the issue of time and distance, the way women were treated in Islamic law at any given time often varied from one legal school to another, or from one jurist to another within the same legal school. Woman as a legal subject is also a very broad topic, which can be addressed using issues as wide-ranging as marriage law, property law, the legal capacity to testify in court, and adultery laws. This is by no means an exhaustive list, but these are the issues that this paper will explore by examining how the topic has been addressed in recent scholarship.

Judith E. Tucker approaches the subject of women in Islamic law by posing the question, “…how could a legal system that attempts to follow the will of God, a God who is compassionate and just, permit and even facilitate the expression of such rampant misogyny and unbounded patriarchal privilege?”[1] Because of how poorly Muslims have been depicted in popular media, Tucker wants to understand how it is that people today are able and willing to defend Islam as the fount of goodness and righteousness, so she begins an investigation of women’s historical place in Islamic law, and how that has developed over time. She believes that it is important to look at not just what the shariʿa says, but at how the shariʿa has been lived and understood by both jurisprudents and laypeople.[2] Through an examination of how Islamic law was implemented in the Ottoman Empire, as well as the justifications used to modify the law, it becomes apparent that many of the misogynistic tendencies Tucker found confusing, when placed in a modern context, are actually accretions of social practice that have become part of the Islamic legal tradition. These social practices became part of the legal tradition both to support the patriarchal structure of society and as a reflection of that society. Ironically, the modification of Islamic law that has so greatly changed its meaning for women and women’s place in society is justified through an Islamic legal concept known as istiḥsān, which allowed formulating law on the basis of the public good. Unfortunately, the public good became skewed due to the male dominance of society, which is perhaps not what the Prophet Muhammad envisioned when he (depending on one’s perspective) relayed God’s message of expanded rights for women in society, but theorizing about what Muhammad may or may not have wanted is beyond the scope of this essay. Instead, I will examine the conflict between Islamic law and how it was modified and implemented in the Ottoman legal system, if at all, and what those changes meant for women’s status in society.

To do this, I will look at a selection of recently written works that address gender and law in the Islamic empire. In Women, Family, and Gender in Islamic Law, Judith Tucker sets out to investigate the historical circumstances behind the development of Islamic law, which she then applies specifically to the Ottoman experience in In the House of the Law: Gender and Islamic Law in Ottoman Syria and Palestine. In Morality Tales: Law and Gender in the Ottoman Court of Aintab, Leslie Peirce addresses how Islamic law was implemented in the court of one small village over the course of a year, from 1540 to 1541. This micro-history closely examines how an Islamic court was used and can help reveal how women engaged with a court on a regular basis and how their interactions with the court defined their place in society. In Family & Court: Legal Culture and Modernity in Late Ottoman Palestine, Iris Agmon discusses a divorce case in Jaffa in 1900 CE, explaining how women’s place in society was defined in relation to the male who happened to be responsible for her at the time. In contrast to Leslie Peirce’s micro-history, in Off the Straight Path: Illicit Sex, Law, and Community in Ottoman Aleppo, Elyse Semerdjian looks at a much larger span of time by examining 359 years of court records from Ottoman Aleppo to discover how the laws regarding sexual indiscretion in the Ottoman Empire were typically applied. She does this to break down the “pervasive discourse of Muslim sexuality that has real effects on the way shariʿa is interpreted today”.[3] I will also introduce a counter-argument to Elyse Semerdjian’s conception of how Islamic law was skirted to allow for flexibility, written by James Baldwin in an article titled “Prostitution, Islamic Law and Ottoman Societies” from the Journal of the Economic and Social History of the Orient.

Islam, like most religions, puts a strong emphasis on tradition, with much of Muslim life revolving around emulating the sunna (the traditional life and sayings) of the Prophet Muhammad. Oddly enough, that concept of emulating traditional rulings was not present in the Islamic legal system. Judges may have referred to a fatwa (religious opinion) issued by a mufti (a religious scholar) presented during a hearing, but the judge’s opinion was not restricted to following past rulings. He was allowed quite a bit of leeway, though he was expected to operate within certain norms set by the community. The closest thing to legal precedents in the Islamic legal system were court records that attested to events and were witnessed to by male, free-born Muslims. These records, or court registers, are what many historians study today to discover how people may have interacted with the courts.

Islamic law, instead of being based on legal precedents, was based on the foundational texts of the religion: the Qur’an and the Hadith (also known as the sunna, or traditions of the Prophet). The Hadith, despite having gone through a lengthy verification process known as isnad, were often contradictory, which led to the possibility of multiple interpretations of law. Over time, multiple major schools of legal thought emerged, with most Sunni jurists falling into one of four categories: Hanafi, which was the dominant school of the Ottoman Empire; Hanbali; Shafiʿi; and Maliki. The Shiʿa developed their own legal traditions based on the Qur’an and Hadith that were approved by their religious leaders.

In all of these legal systems, women played an important role, but the level of participation allowed to a woman, and how she was conceived of in terms of legal capacity, varied widely depending on the school. Analyzing a work by Haim Gerber, Tucker wrote that women were very active in the court system throughout the Ottoman period, despite the fact that they were an “underdog.”[4] The Ottoman court system was, in fact, a place where the ordinary citizen fought for their legal rights, which, in regards to women, showed clearly that they were aware of their legal rights and were willing to use them. Upper-class women often presented their views in court through male intermediaries, but middle- and lower-class women often appeared themselves.

Leslie Peirce wrote that upper-class women voluntarily refrained from using the court system and opted for arbitration instead. She explained that many women wrote to Ebu Suud, the Ottoman chief mufti from 1545 to 1574, asking what identified one as privileged, and he confirmed that female seclusion was, in his opinion, a marker of elite status.[5] This indicates that there was a level of class distinction involved in who used the court system among women, with women’s ability to exercise their legal rights being curtailed by the idea that by presenting themselves in court they would be violating social norms associated with being privileged. Leslie Peirce wrote that this conundrum bothered Ebu Suud, who was concerned that the removal of elite women from the court might cause them to be deprived of their rights.[6] Tucker explained that when women appeared in court and received validation of their rights by the judges, it helped to ensure that women’s legally guaranteed rights remained active in the community consciousness, despite the fact that men had been actively attempting to silence women and remove them from the public sphere for centuries.[7] Also working against attempts to remove women from the public sphere are the foundational texts of Islamic law themselves, which theoretically give women inalienable rights, or leave enough ambiguity to give women an opportunity for more representation. The fact that women’s rights are embedded in the foundational documents hasn’t stopped men from continually attempting to align the law with patriarchal standards, however. The most prominent area of gender conflict in Islamic law is probably marriage, since it is by definition a legal agreement between a man and a woman.

Judith Tucker writes that the doctrinal basis of marriage, as conceptualized in Islam, is found in both the Qur’an and the Hadith. For example, the Qur’an contains verses that describe wives as “a vestment for you and you [men] are a vestment for them” (2:187). Men and women were both informed that “He created for you, of yourselves, spouses, that you might repose in them, and he has set between you love and mercy” (30:21). These verses described marriage as something positive for both parties, but the Hadith presented a contradictory view of marriage. Some Hadith claimed that Muhammad would have ordered wives to prostrate to their husbands, had it been permissible to prostrate one’s self to another human being. Other Hadith claimed that women should be sexually available to their husbands at any time, even when riding a camel (!).[8]

Hadith are not as reliable as the Qur’an, which is considered to be the word of God, so the fact that there are contradictions between the Hadith and the Qur’an, and between different Hadith, left room for jurists to come to widely different conclusions about how to address the role of women in society. This was especially prominent in terms of how women’s sexuality was controlled, the primary vehicle of which was marriage. Because of the patriarchal structure of the system of jurists that developed, the laws governing women in marriage ultimately privileged men.[9]

Though Islamic marriages were presented as opportunities for two people to create a loving relationship, marriages were established as economic contracts that bound two people together in pledges of mutual support. These marriages were often arranged, and it was hoped that feelings of mutual affection would come later in the relationship. Marriage entailed trade-offs. For the woman, there was guaranteed economic support, a place to live, and a right to inheritance. In exchange, the man received sexual access, domestic labor and a woman to raise his children. In the Hanafi legal tradition (the official legal school in the Ottoman Empire), the nikāḥ, the marriage contract between a man and a woman, was specifically intended to legalize sexual intercourse. Specifically, Hanafis believed that “marriage is ownership by way of owning sexual pleasure in a person and this right is established by marriage.”[10] This conceptualization of marriage presented women as containers for their sexuality, turning their bodies into a commodity, passed from the family of birth to the husband.

Though women were technically required to give their consent to a marriage, their voices were typically silenced through a complex set of rules governing the giving away of brides to husbands. The most egregious example is that of the Shafiʿi jursits, who empowered a virgin woman’s guardian to compel her to marry against her will. Girls in their legal minority (pre-pubescent) could be married off at will by their legal guardian. This rule also applied to underage males, but in actual practice girls were more typically married off before puberty. A non-virgin woman did have some room for maneuver; she could only be married with her vocal consent. Also, if a girl was married before she reached puberty, she could sue for annulment upon reaching her age of legal majority (puberty or fifteen years of age).

Even when a woman was given a choice in terms of her marriage partner, that choice was restricted by the imposed constraints of kafāʿa, or the suitability of her choice, which was determined by her guardian (nearest male relative) and essentially restricted her to a man of the same economic and social background or better. A woman was only allowed to marry laterally or to someone of a higher status; to do otherwise would bring shame to the family.[11] Women were very much considered to be vessels carrying the family honor, a tradition that continues in modern times and results in the “honor killings” of daughters by their fathers for a perceived looseness of morals that stains the family’s name.

Judith Tucker wrote that it is hard to say with any certainty what Islamic law says about marriage due to the complexity of the legal traditions and the often contradictory sources. The growth of differences between and within the different Islamic legal schools further complicated the issue, though most of the differences revolve around minor issues. There are constants, like nafaqa (maintenance of the wife), but Tucker believed that Islamic marriage was inherently discriminatory, with women not always having an equal say in the making of a marriage contract or in how the household would be run. Islamic law also placed heavy burdens on men in a marriage, making him responsible for the material support of his wife, children, and all household expenses.[12] Essentially, what income a woman had belonged to the woman, and what income a man had also belonged to the woman, in the form of legally mandated material support. This legal requirement of maintaining the wife was a significant curb to polygamy, which required equal maintenance of all wives and balanced a man’s legally recognized right to sexual variety with a woman’s legally recognized right to maintenance.

Marriage status and the life-cycle of a woman indicated a perceived legal capacity. Leslie Peirce described this as part of a gendering and social stratification of society, which was reflected by court records in Aintab in 1540-1541. The court records of Aintab seemed to indicate that the free-born Muslim male was considered the default individual, to which people of all other social statuses were measured. Peirce reached this conclusion by examining the notations next to people’s names in the court registers from Aintab.[13] People were either male, in which case they were noted by their name, or they were something else, in which case they would be labeled by whatever set them apart from the free-born male Muslim: sex, religion, status as a slave or freed-person, nomadic tribal affiliation or status as a minor.[14] The largest category of “other” was female. This status was further broken down to indicate the age of a woman: “kiz, the female child or unmarried adolescent; gelin, the newly married young woman; and avret or hatun, the female adult, married or once-married and now divorced or widowed.”[15] Males had designations as well, but only for adolescents and the senile, indicating that the default and standard legal identity is the legally mature Muslim male. The fact that senile men had a separate category also indicates that the concept of being legally mature required mental maturity and ability as well, making the free-born Muslim male the standard against which women would be judged, or perhaps reflecting the fact that the Qur’an indicates that Muslim men are more competent to give testimony than women through its requirement of additional female witnesses. This issue will be addressed in greater detail below.

The changing life-cycle notations in the Aintab registers for women could also indicate how women’s status in society was conceptualized. It is interesting to note that a woman’s designation changed based on her physical location, whether in her parents’ home, her new husband’s home, or in a home that she and her husband had created together. Each of these situations were given attention in the court registers, indicating that they had some bearing on the validity of a woman’s testimony. Additionally, they demonstrate how a woman gained value in society, not through her own means, but in how she related to a male: as a father’s daughter, a husband’s new wife, or a husband’s children’s mother.[16]

Because a woman’s status as a householder rested on her having dependents, Peirce argued that infertility had to be overcome so she could establish herself as mature according to social standards. To do so, Peirce said she had to use social means, because legal means were not available to her. Where men could resort to using the existing legal structure to gain heirs through multiple wives or concubines (slaves were permissible for intercourse and produced legitimate offspring, as opposed to bastards as found in European traditions), women had to resort to adoption. I would argue that adoption was a legal structure as well, since Peirce reports that adoptions were recorded in courts by the new guardian, who agreed to take on responsibility for the child’s maintenance, which is a legal agreement between the guardian and the court. Peirce also mentions that a household could be constituted in other ways, such as having domestic slaves, so instead of giving birth to a child, a newly married couple could obtain slaves and then create a new household.

These life-cycle stages and the way they were observed in the Aintab court records do not coincide with the shariʿa concept of female maturity, but they were in use nonetheless, showing that social customs could and did elaborate on or modify legal theory.[17] They also demonstrated the emphasis on maturity being equated with the formation of a household, which for a woman meant being married and having dependents. Peirce argued that social practice in Aintab and elsewhere indicated that people were unwilling to designate any female but a householder as legally mature, indicated by the fact that the vast majority of the women who used the court in Aintab were labeled as avret or hatun.[18]

So, for women in Aintab, and presumably elsewhere in the Ottoman Empire, marriage was seen as an important stepping stone that allowed access to the legal structure of the court, where they could make their voices heard. This social restriction essentially placed women’s legal capacity under the power of men, encroaching on what should have been their inalienable rights to access to the courts without a guardian, as long as she had reached the age of legal majority. An example of where this might not be the case is one that Peirce gives. Suppose a girl is married prior to her age of legal majority and upon reaching that age she rejects her marriage in court and requests an annulment. Technically, that should leave her in a state of being legally and socially mature, but according to the prevailing social customs in Aintab, she would likely have fallen into a gray area where she was neither recognized as kiz, gelin, or hatun.

Writing about a divorce case in Jaffa in 1900 CE, Iris Agmon wrote that women were also disadvantaged in divorce. A regular divorce was always initiated by the man, because a divorce required the man’s consent, which was indicated by his proclaiming the divorce declaration loudly three times at court. Additionally, he was required to pay alimony to his wife for about three months, the period during which she was not allowed to remarry. This was supposedly for her benefit, to determine whether or not she was pregnant before the divorce became final. The reason this was important is because women were not expected to provide for anyone, not even for themselves, and if she were pregnant then the man who fathered the child would be required to provide maintenance until the child reached the age when he would pass from the mother’s care into the father’s.[19]

So, even though shariʿa law regarding divorce was obviously biased in favor of the male, it allowed a woman to demand maintenance, which seems to be practical and beneficial, except that in actual practice women sometimes forfeited their rights to financial maintenance to convince the husband to agree to the divorce.[20] And, because women were required to be under the protection of a male, this would require her to either remarry or return to her family of birth. So, like the young girl that Leslie Peirce described as receiving an annulment from a marriage formed before she reached the age of legal majority, divorce did not necessarily lead to liberation for women.

Women also faced difficulties in retaining control of their children after a divorce, despite it being mandated in Islamic law. Children were thought to be their father’s, not as jointly belonging to the couple, or to the mother. The woman’s job was simply to bear them and raise them to a certain age. This stemmed from the conception of society as being composed of patrilineal families.[21] A woman married into a man’s family, and she returned to her father’s family after divorce. She did not constitute her own family by herself. Even after divorce, during the period she retained custody of her children, she relied on maintenance supplied by her former husband. In other words, her place in society was still defined by her relation to a male. Men were conceived of as being responsible for themselves and their dependents, whereas women were not ultimately responsible for anything. Because of this, Agmon wrote that women were conceived of as “creatures who needed guidance, protection, and supervision—in other words, not responsible or “incomplete” human beings.”[22]

Incomplete is exactly how a woman would be described when giving testimony in court. A woman’s legal capacity to act on her own behalf in court was another area where Judith Tucker felt that women were clearly disadvantaged. Rules governing women’s testimony insinuated that they were less credible than men and some legal schools made women wards of male relatives while simultaneously limiting their ability to be guardians of their own children. After analyzing the writings of Islamic scholars on the topics of women’s property rights and ability to testify before the court, Tucker wrote that Islamic law, both in theory and in practice, suffered from inherent contradictions when confronted with matters of female legal capacity.[23]

Take the following verse from the Qur’an, for example:

And call into witness

Two witnesses, men; or if the two

Be not men, then one man and two women,

Such witnesses as you approve of,

That if one of the two women errs/ the other will remind her. (2:282)[24]

As shown in the verse above, the Qur’an provides for a less than equitable dynamic for women offering testimony. By requiring two female witnesses for every one male witness, a woman’s mental ability is called into question. Judith Tucker argued that this insinuated that women were less trustworthy and less appropriate as legal witnesses than men.[25] But, she also described the situation as being much more complex than it at first seems, with women’s ability to navigate the courts being largely determined by the school of Islamic law the presiding qadi, or Islamic judge, followed.

She questioned whether the fact that most jurists were uncomfortable with having women in the courts was due to the social context, where women were, as much as possible, prevented from entering public spaces, or whether jurists simply felt that women were mentally inferior. Agmon believed that judge’s understood themselves to be fulfilling the role of a kind of guardian of social equilibrium, who sought to remedy situations at court by reinforcing the social equilibrium that existed in the patrilineal family unit.[26] To maintain a stable society, patriarchal norms were reinforced using interpretations of shariʿa as a justification. Because most schools and even jurists within schools differed widely in interpretation of the law on issues relating to a woman’s ability to present herself in court, Tucker believed it would be hard to come to any solid conclusions about exactly how women should be treated in court according to prevailing legal opinions.[27]

For example, Shafi claimed that women were not suited to give testimony in cases that resulted in serious consequences, such as adultery, fornication, theft, alcohol consumption and apostasy, because they suffered from weak intellects, deficient accuracy, and were incapable of ruling. Al-Marghinani, a Hanafi, engaged with this idea and claimed that women were capable of processing information just as well as a man, as evidenced by the acceptance of Hadith transmitted by women, but backpedaled a bit and admitted that women may have some lapses in memory that prevented them from being reliable witnesses, requiring them to have a second woman to corroborate their story. Additionally, Hanafis did not recognize the testimony of women in cases of hudūd and qiṣāṣ (laws with prescribed punishments). Al-Marghinani did not explain why women would be less capable of testifying in these cases, when their testimony was accepted in property cases.[28] Why would a woman be able to clearly process and understand information related to property disposal, but not criminal actions?

Women’s authority to testify concerning issues specific to women was accepted, such as in matters related to childbirth, or for establishing paternity based on the date of a child’s birth, or in determining whether or not a child was stillborn or died after birth. On the other hand, when two men testified against a man and two women, the testimony of the two men was held to be more valid, even though two women were established as having testimony equally valid as one man.[29] Whether because women were thought to be mentally inferior, or due to some concern with women being seen in public too much, women were deprived of their rights as often as possible and with any excuse possible, leading to further male privilege in a patriarchal society and legal system.

In terms of handling the disposal of property, jurists made little distinction between males and females. As long as a person was of the age of legal majority, he or she was fully empowered to enter into contracts and exercise sole control over the property that he or she owned. This opinion was derived from an exhortation in the Qur’an, which stated, “if you perceive/ in them right judgment, deliver to them/ their property” (4:6).[30] There were, however, qualifications as to what constituted legal majority beyond simply being pubescent. One was also required to demonstrate “rationality, good sense, and mental maturity.”[31] Tucker wrote that this additional qualification of legal majority could be proved through testimony of close relatives or even through hearsay. Tucker doesn’t address this issue in her chapter about Islamic marriage, but it is possible that the need for a woman to be recognized as mentally mature before she was allowed to manage her own property was an opportunity for abuse by male relatives who wanted to prolong their control of the woman’s assets. In the Maliki school of thought, a legal justification was created to alleviate this problem (for the male), allowing the guardian to continue managing the mature woman’s property, even after she was married. Even if a woman had witnesses testify to her mental maturity, a father still might legally impose himself on his daughter’s property for up to seven years, according to Maliki jurists. While there may have been some justification for this, it is hard to see one that does not clearly advantage the male guardian over the female’s rights to her own property.[32]

In the Hanafi Ottoman tradition, the concept of legal maturity was flexible. Both males and females were considered to have come of age when signs of physical maturity were observed (puberty) or, at the latest, at the age of fifteen. However, Ebu Suud, the Ottoman chief mufti from 1545 to 1574, raised the age of legal majority to seventeen for females and eighteen for males. Whether he did this to satisfy his own desire to raise the legal age of majority or because it reflected the popular will of the people to lengthen the period of legal minority is unknown.[33] But generally, once a woman’s legal majority was established, a woman could not be prevented from exercising her legal rights. In most cases, marriage had no impact on a woman’s rights to manage her own property. While a father may have continued to impose himself on his daughter by using a legally justified extension of his guardianship rights to maintain access to her property, the husband was theoretically never able to assume full control of his wife’s property. Most schools of Islamic law decided that a husband’s right to his wife’s sexuality in no way gave him a right over his wife’s money or other property. This ruling was challenged, but always held firm, because jurists could find no clear connection between rights to sexual availability and rights to take another person’s property, since a woman who was married was, by legal definition, her own guardian.[34] The Maliki school of law was again the exception, which gave a husband power over how his wife disposed of her property. He was able to prevent her from donating one-third of her property or from acting as a guarantor for one-third of a given sum. Maliki jurists justified this by claiming that a woman’s relationship to her husband was similar to that of a slave for her master, or a debtor for a creditor, and said the loss of wealth would damage the husband’s material well-being, which inherently assumed that a man had a right to benefit from his wife’s wealth, which was not supported by the other schools of law or the foundational documents of Islam.[35]

Property acquisition was another area of Islamic law where men and women were unequal. In different circumstances, both men and women had clear advantages over the other, but taken as a whole, the rights men and women had to gain property was probably established to compensate for the structure of society, which required men to expend more on maintenance of family members. For example, Islamic law specified that every wife should receive a mahr, or dower from her husband that became a part of her property. This property could not be accessed by anyone else unless the woman chose to share it of her own free will. Ideally, this property would become part of her untouchable property, but that may not have always been the case. If a woman fell under Maliki law, she might have been forced to concede property rights to a domineering father or she might have been prevented from disposing of her property as she saw fit by her husband.

Property laws also differed in terms of inheritance, which was an extremely complicated system that distinguished inheritance shares based on the number, gender, and relationship of surviving kin. What impacted women most, however, was that they were legally restricted to only receiving one-half of a share of inheritance, compared to their male relatives, which parallels the limitation of a woman’s testimony as being equal to one-half that of a man’s. Despite being explained as referring to economic issues of men providing maintenance, this conception of woman in Islamic law reinforced the idea of a woman being worth only half the value of a man. Additionally, inheritance laws heavily favored the paternal line of surviving kin. This was tempered by the fact that women were designated by law to inherit from many of their male relatives and they could not legally be disinherited. They also had free reign to dispose of their property.[36]

Whether or not women benefited from laws concerning sexuality and zina crimes is questionable. Zina, as defined in volumes of juridical writings produced by Muslim scholars, encompassed a wide range of sexual violations, including adultery, prostitution, procurement, abduction, incest, bestiality, sodomy and rape.[37] In the legal discourse concerning sexuality and reproduction, human sexual desire was conceived of as being equally “powerful and ubiquitous” in men and women and was designed to prevent undesirable social pairings that would result in children of uncertain parentage who would cause “social and economic liabilities in a kin-based society.”[38] This theoretically placed women on an equal footing with men, but the actual implementation of law in society was modified by social customs.

The muftis who formulated laws governing sex crimes believed that they were taming something that they had helped to create, because “sexuality is constituted in society and history, not biologically ordained.”[39] Their approach to controlling desire was not to try to reform or eliminate what was considered a powerful and universal urge, but rather to create social constraints that would channel sexual desire into socially useful directions, rather than allowing it to cause disorder.[40] This may have been why, rather than punishing women guilty of adultery by death, judges in Aleppo chose instead to banish them to other neighborhoods. Prostitutes did, after all, serve what they considered a socially useful purpose: they curbed the sexual appetites of men who might otherwise engage in rape, including the Janissaries.[41]

The overwhelming amount of thought put into the construction of legal theory regarding sexuality catered to the idea that male sexuality was more active and demanding than that of females, though there was no real differentiation between ideas of heterosexual and homosexual desire.[42] In some instances, a pretty boy was considered to be sexually dangerous, but he was not required to be veiled or separated from men during prayer because sexuality was something that was attributed to him only because of his likeness to a woman. In other words, it was something separate from himself, whereas sexuality was considered to be an inherent part of what a woman was, “always present and powerful, always to be guarded against.”[43] This conceptualization of sexuality was inherently disadvantageous to women, who found themselves bearing the brunt of managing sexuality and desire by covering themselves, remaining secluded, and avoiding contact with or being alone with unrelated men.

Shariʿa law regarding inappropriate relationships was structured in a way that attempted to prevent illicit unions, but that did not prevent them from happening. However, it was rare that actual hadd (prescribed) punishments were carried out. Typically, the judges had enough leeway to give lighter punishments that were more in line with community ideals, which they justified as being for the good of the community.[44] Local neighborhood representatives approached the courts with reported violations of the moral code, reflecting both the action of the community in the court system and the role of the court as a mediator of public affairs, or as Iris Agmon put it, maintainers of the established patrilineal social equilibrium, also attested to by the notations of social position that Leslie Peirce discovered the Aintab registers.[45]

To demonstrate the flexibility of the court system, Elyse Semerdjian examined sets of court registers from Ottoman Aleppo that covered a span of 359 years in an attempt to create a more realistic narrative about the relationship between sexuality and shariʿa law, revealing the sharp distinction between the prescribed hadd penalties for sexual offences and the actual punishments meted out by judges.[46] Rather than stoning or lashing offenders, penalties usually included eviction from the neighborhood or fining. Deflecting corporal punishment was accomplished through various methods, including shubha (the introduction of legal doubt), the legitimation of a conversion from physical punishment to fines, the requirement of the four witnesses to actually see the act of penetration, and by justifying prostitution as quasi-ownership and therefore not subject to hadd penalties.

Ottoman laws concerning punishment differed so drastically from shariʿa law that Semerdjian speculated that it might have been an attempt to reconcile the law with the empire’s diverse population, since the shariʿa courts, though belonging to the Muslim community, were open to anyone. She also argued that the concepts of istiḥsān and istiṣlāḥ (forming laws based on public interest) played an important role in allowing judges to pass rulings that did not comply with traditional understandings of shariʿa law. She believed that no matter how widely practices had diverged from previously accepted norms, legitimation for the changes in punishments all had their foundations in principles of Islamic jurisprudence.[47]

James Baldwin disagreed with how Semerdjian conceptualized Islamic law and found her explanation of how Ottoman judges were able to evade handing out hadd punishments for prostitution offenses unsatisfactory. He wrote that Semerdjian’s arguement that judges made rulings based on local custom, rather than Islamic law, framed the discussion in a way that depicted shariʿa law as a problem that had to be skirted in order to pass more humane sentences.[48] Baldwin argued that almost all major Hanafi jurists of the period had excluded prostitutes and their clients from fixed penalties, which is something that Semerdjian acknowledged as well, but he elaborated on this point by expanding his definition of what constituted Islamic law.[49] Instead of arguing that there was a gulf between Islamic law as an ideal and actual practice, he instead argued that that all of the different components of legal writing at the time, including matn (manual), sharḥ (commentary), fatwa (opinion) and ḳānūnnāme (codified orders of the Sultan), together with the day-to-day practices of the judges, litigants and state officials all collectively constituted Islamic law.[50] He understood Islamic law as a working system, rather than as an inert body of knowledge, judicial practices, or as an exertion of state power.[51]

James Baldwin’s approach to Islamic law might be the best method for women today to positively address Judith Tucker’s question, presented at the beginning of this paper, that questioned how women, and people in general, could hold up Islam as a fount of righteousness when the history of the religions legal system is riddled with gender inequalities. Throughout this paper, I’ve examined the ways that gender, and women specifically, have been approached in Ottoman legal history. In each situation, for better or worse, shariʿa has been molded and adapted to local concerns, and if one imagines Islamic law as a living system that evolves through opinion and discourse to remain relevant, then there is reason to believe that a generation of Islamic feminists can help redefine shariʿa and women’s place both within the legal system and in their societies.

 

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References

Agmon, Iris. 2006. Family & Court: Legal Culture and Modernity in Late Ottoman Palestine. Syracuse: Syracuse University Press.

Baldwin, James E. 2012. “Prostitution, Islamic Law and Ottoman Societies.” Journal of the Economic and Social History of the Orient 117-152.

Peirce, Leslie. 2003. Morality Tales: Law and Gender in the Ottoman Court of Aintab. Berkeley: University of California Press.

Semerdjian, Elyse. 2008. Off the Straight Path: Illicit Sex, Law, and Community in Ottoman Aleppo. Syracuse: Syracuse University Press.

Tucker, Judith E. 2000. In the House of the Law: Gender and Islamic Law in Ottoman Syria and Palestine. Berkeley: University of California Press.

—. 2008. Women, Family and Gender in Islamic Law (Themes in Islamic Law). Cambridge: Cambridge University Press.