Recent research, based on original legal sources, has generated a lively debate about the ways in which the Ottoman legal system worked or failed to work in different stages of the empire's six hundred-year-long history and in different parts of the region it covered. Ghazzal's book is an addition to this growing literature.
He begins with a discussion of “Hanafism,” the school of Islamic law that informed Ottoman legal practice. In this, he relies heavily on Ibn ‘Abidin (d. 1836), the legal maxims of Ibn Nujaym (d. 1562), and the Majalla, the compendium of legal guidelines for reformed Ottoman courts (prepared in 1869–76). These are important sources.
In Chapter 2, Ghazzal discusses adjudication and its relationship to legal doctrine formation. He emphasizes how the courts tried to accommodate new conditions and local custom while maintaining the postulates of the legal doctrine to which they adhered. In Chapter 3, Ghazzal focuses on contracts, the central theme of his book. He discusses how the courts relied on debatable analogies and legal fiction to derive new types of contract from the basic forms recognized in the classical Hanafi doctrine. He notes that while local jurists issued opinions vindicating these practices on a piecemeal basis, legal scholars and jurists in general showed little interest in the integration of the new practices into the classical doctrine.
Chapters 4 through 6 discuss the manifestations of the same issue in property relations, including those revolving around inheritance and endowments. Again, Ghazzal's main point is that legal scholars’ strict adherence to doctrinal postulates left the courts with only procedural stratagems as a means to accommodate the arrangements sought to defend their interests.
Ghazzal's observations indicate that contractual arrangements addressed and tried to balance different interests. Some of them privileged tenants and kept the rents down. Others aimed at overcoming the difficulties of retaining property. In either case, state custodianship of much of the agricultural land in Ottoman lands complicated the problems and impeded the full commercialization of property and hence the shift to a modern capitalist economy. Ghazzal is not so much interested in analyzing the circumstances in which these tensions developed as he is in a critical textual analysis of Islamic legal discourse. Thus, Chapters 7 and 8 focus on the language of legal opinions (fatwas) and court decisions comparatively in an effort to establish the economic implications of legal terms related to property.
Ghazzal recognizes that Islamic legal thought reflected in many ways the “epistemic grounds upon which knowledge rested” for the Syrian and Ottoman elite. Consequently he sees in jurists' reluctance to make systematic amendments to the doctrine signs of inadequate preparation for challenges of modernity. Chapters 9 through 11 elaborate on some of the consequences of the growing gap between legal theory and practice. Thus, the central government initiates laws that circumvent the Hanafi tradition and introduce new tribunals that gradually marginalize the shari'a courts. According to Ghazzal, this development exposes the ultimately communal and parochial nature of Hanafism. However, he also implies that the new and Western-inspired legal reforms had limited efficacy because they were imposed from above in an environment that was hardly touched by the transformative influence of the Enlightenment and the great nineteenth-century thinkers.
Ghazzal appears to be echoing the long-entrenched Westernist views of Islamic law as an unreformable casuistic tradition imprisoned in its narrow hermeneutic orientation. However, his work is also a reminder of the need to pay due attention to law as a discursive tradition that helps shape and perpetuate the norms and idioms with which people think and interact. This reminder should reinforce the growing interest in Ottoman legal history. Another important contribution of his work is the forty-four legal cases (from Beirut and Damascus between 1800 and 1860) he offers us in careful translation, supplemented with helpful charts and detailed explanations. His discussion of the three legal texts mentioned above is likewise useful.
Familiarity with the growing literature on Ottoman legal history would have enhanced the value of Ghazzal's book. His bibliography and text make clear that he has looked at only one of the many works directly relevant to his research. This disregard leads to seriously problematic bold generalizations. Two examples should suffice. Ghazzal repeatedly asserts that the Ottomans “never” made “any” attempt to centralize their judiciary. As a matter of fact, the Ottoman judiciary was bureaucratically organized to a significant extent for an early modern state. Ottoman policies that aimed at maintaining a degree of uniformity in the training of judges and jurists and in the performance of courts should be of interest to Ghazzal.
Furthermore, Ghazzal holds that sultanic legislation represented a separate world from that of the shari'a-based law. This is an idea that emerged in the nineteenth century and became reinforced retrospectively under the influence of modern notions of secularism. Recent research on the processes that led to the promulgation of imperial edicts and laws obliges us to reconsider the relationship between these edicts and the shari'a as it applied in Ottoman courts. This should be exciting news for a researcher who emphasizes the epistemic significance of legal concepts. In his effort to capture that significance, Ghazzal neglects historical context and research that would help him avoid dated generalizations. Nevertheless, the readers will find valuable information in this voluminous book.
