Notes

INTRODUCTION

1. Sijillat al-Mahakim Halab (hereafter cited as SMH) 27:18:63 21 Muharram 1071 A.H./September 1660.

2. More recent cases of convictions of stoning have occurred in places such as Iran, Nigeria, the United Arab Emirates (UAE), and Saudi Arabia. In Iran, a moratorium on stoning was issued in 2002 by Ayatollah Shahroudi, the head of the Iranian judiciary. Currently, there is a stay of execution for a couple who bore an out-of-wedlock child eleven years ago (Mark Tran, “Iran Stays Execution by Stoning”). A case in the UAE is detailed in Bassma al-Jandaly’s article “Death by Stoning Case Goes to Supreme Court,” Gulf News, January 31, 2007. Two Nigerian women, Safiya Husseini and Amina Lawal, successfully appealed their stoning convictions in Nigeria, and both happened to be cases of out-of-wedlock pregnancy (“Shari‘a Court Frees Nigerian Woman”; and Dan Isaacs’s article “Nigerian Woman Fights Stoning”). The Associated Press reported a stoning in a Mazar-e Sharif stadium in Afghanistan under the Taliban (“Taliban Stone Woman for Adultery,” May 1, 2000). Janelle Brown describes an often broadcast video of a Taliban public execution of a woman accused of adultery in a Kabul soccer stadium; the woman identified only as Zarmina was killed with a rifle shot to the head (“The Taliban’s Bravest Opponents”). A posting of the Associated Press article related to this case, as well as the original video of the execution, can be found on the Web site of the Revolutionary Association of Women of Afghanistan (RAWA) (“Taliban Publicly Execute Women”).

3. For a full reference of all court registers consulted in this research as well as my research methodology, see chapter 3. Although I have found no cases of stoning in Aleppo, Fariba Zarinebaf has found a case mentioned in her unpublished paper, “Regulating Prostitution in 18th Century Istanbul.” Zarinebaf’s case from the seventeenth century was of a Muslim woman who married a Jew; he was forcibly converted to Islam, and they were both stoned to death. This study is part of her forthcoming book, “The Mediterranean’s Metropolis: Urban Transformation, Crime, and Social Control in Eighteenth-Century Istanbul.” The same zina case between a Muslim woman and a Jewish man, resulting in stoning, is discussed in Marc Baer’s article “Islamic Conversion Narratives of Women: Social Change and Gendered Religious Heirarchy in Early Modern Ottoman Istanbul,” 436. Madeline Zilfi first discussed this case earlier in her study The Politics of Piety. Boğaç Ergene has found few references to stoning but shared one case with me concerning the rape of a virgin slave named Belkis from the Kastamonu registers from 1789. The rapist was sentenced to execution by stoning (personal communication).

4. Joseph Schacht, “Zina,” in Encyclopedia of Islam, 4:1227.

5. I use the term “zina”-related because the courts sometimes used the term zina and sometimes used euphemisms to describe the crime. See chapter 4 on the use of euphemisms.

6. Abraham Marcus, The Middle East on the Eve of Modernity: Aleppo in the Eighteenth Century; Margaret L. Meriwether, The Kin Who Count: Family and Society in Ottoman Aleppo, 1770–1840; Bruce Masters, The Origins of Western Dominance in the Middle East: Mercantilism and the Islamic Economy in Aleppo, 1600–1750 and Christians and Jews in the Ottoman Arab World: The Roots of Sectarianism; Abdul Karim Rafeq, “The Syrian ‘Ulama, Ottoman Law, and Islamic Shari‘a,” “Craft Organization, Work Ethics, and the Strains of Change in Ottoman Syria,” and “Local Forces in Syria in the Seventeenth and Eighteenth Centuries.”

7. Abdul Karim Rafeq, “Public Morality in 18th Century Damascus.”

8. Preference was given to legal sources in this study owing to the wealth of documentation. Accordingly, chronicles and travel accounts were used occasionally for context but not similarly surveyed.

9. Two articles by Amira Sonbol exemplify her method of combining fiqh and sijills. See “Law and Gender Violence in Ottoman and Modern Egypt” and “Rape and Law in Ottoman and Modern Egypt.” Judith Tucker’s method of combining the fatwas of three muftis alongside sijills from Damascus, Nablus, and Jerusalem can be seen in her book In the House of the Law: Gender and Law in Ottoman Syria and Palestine. Leslie Peirce analyzes Hanafi fiqh, imperial fatwas, and sijills from ‘Ayntab in Morality Tales: Law and Gender in the Ottoman Court of Aintab.

10. Recent examples of microhistories in Middle Eastern history include Peirce, Morality Tales; and Cem Behar, A Neighborhood in Ottoman Istanbul: Fruit Vendors and Civil Servants in the Kasap İlyas Mahalle.

11. Two classic examples of microhistorical approaches in European history include Carlo Ginzburg, The Cheese and the Worms: The Cosmos of a Sixteenth-Century Miller; and Natalie Zemon Davis, The Return of Martin Guerre.

12. Dror Ze’evi wrote a thought-provoking article that discusses the pitfalls of using the shari‘a court records, particularly the speculative process of understanding what lies behind “the sijill façade” (“The Use of Ottoman Shari‘a Court Records as a Source for Middle Eastern Social History: A Reappraisal”).

13. Women may have practiced ijtihad before Fatima Mernissi, but it is not well documented. See Mernissi, The Veil and the Male Elite: A Feminist Interpretation of Women’s Rights in Islam. There are too many studies inspired by Mernissi’s work to name here. Examples include a great deal of feminist exegeses of sacred texts and reinterpretations of women in Islam, such as Leila Ahmed, Women and Gender in Islam: Historical Roots of a Modern Debate; Asma Barlas, “Believing Women” in Islam: Unreading Patriarchal Interpretations of the Qur’an; Denise A. Spellberg, Politics, Gender, and the Islamic Past: The Legacy of ‘A’isha bint Abi Bakr; Barbara Freyer Stowasser, Women in the Qur’an, Traditions, and Interpretation; and Amina Wadud, Qur’an and Woman: Rereading the Sacred Text from a WomanXs Perspective. Judith Tucker has noted that she follows in the path of Mernissi (In the House of the Law, 9).

14. This theme has been explored by Sami Zubaida in Law and Power in the Islamic World.

15. Mernissi, Veil and the Male Elite, 19.

16. Karl Wittfogel, Oriental Despotism: A Comparative Study of Total Power. The history and development of Oriental despotism is well documented by Ervand Abrahamian in “Oriental Despotism: The Case of Qajar Iran,” 3–9.

17. This description has been taken from the work of Lawrence Rosen, which draws heavily on the Weberian notions of Islamic justice (The Anthropology of Justice: Law as Culture in Islamic Society, 59).

18. See Max Weber, Max Weber on Law in Economy and Society, 213; and Bryan S. Turner, Weber and Islam: A Critical Study, 107–21.

19. Some more recent studies have continued to adhere to the Orientalist position that the “gates of ijtihad” were closed. See Dror Ze’evi, Producing Desire: Changing Sexual Discourse in the Ottoman Middle East, 1500–1900, 49. I have also noticed the argument being advanced, without including the revisionist arguments against the closing, in texts such as Mohammad Hashim Kamali’s “Law and Society: The Interplay of Revelation and Reason in the Shariah,” 115–16.

20. See, for example, Brinkley Messick, The Calligraphic State: Textual Domination and History in Muslim Society; and David Powers, “Kadijustiz or Qadi-Justice? A Paternity Dispute from Fourteenth-Century Morocco.” Both authors edited several articles, along with Muhammad Khaled Masud, in a volume titled Islamic Legal Interpretation: Muftis and Their Fatwas. Many of the contributors to this volume are engaged in this important field of study and are regular contributors to a journal dedicated to this field titled Islamic Law and Society, published by E. J. Brill. See also Wael Hallaq, A History of Islamic Legal Theories: An Introduction to Sunni “Usul al-Fiqh.”

21. Haim Gerber, “Rigidity Versus Openness in Late Classical Islamic Law: The Case of the Seventeenth-Century Palestinian Mufti Khayr al-Din al-Ramli,” 181n. 67.

22. Messick, Calligraphic State; Masud, Messick, and Powers, Islamic Legal Interpretation; David Powers, “Kadijustiz or Qadi-Justice?”; Tucker, In the House of the Law.

23. A few works came to the defense of Joseph Schacht and the argument about the closing of the gates of ijtihad soon after Hallaq’s original article. See Norman Calder, “Al-Nawawi’s Typology of Muftis and Its Significance for a General Theory of Islamic Law”; and Sherman Jackson, “Taqlid, Legal Scaffolding, and the Scope of Legal Injunctions in Post-formative Theory: Mutlaq and ‘Amm in the Jurisprudence of Shihab al-Din al-Qarafi.” These works are referenced in Gerber, “Rigidity Versus Openness,” 181n. 67. For the connection between fatwas and positive law, see Wael Hallaq, “From Fatwas to Furu‘: Growth and Change in Islamic Substantive Law.”

24. The term doctrine is one that I have borrowed from David Powers that connotes law as found in the prescriptive literature of fiqh that stands in contrast to the everyday practice of law (personal conversation at Harvard University, May 2002).

25. Tucker, In the House of the Law, 10.

26. See table 3.1, which documents the court registers examined in this study as dating from 1507 to 1866.

27. Michel Foucault, “Truth and Juridical Forms,” 2.

28. Yusuf Qushaqji, Al-Amthal al-sha‘biyya al-halabiyya wa amthal Mardin, 1:155.

29. Jean Sauvaget, “Halab,” 85.

30. Marcus, Middle East, 17.

31. Sauvaget, “Halab,” 85.

32. Masters, Origins of Western Dominance, 13.

33. Marcus, Middle East, 19–21.

34. André Raymond, The Great Arab Cities in the 16th and 17th Centuries: An Introduction, 15.

35. Masters, Origins of Western Dominance, 42. See also André Raymond, Urban Networks and Popular Movements in Cairo and Aleppo (End of the 18th–Beginning of the 19th Centuries), 255–56.

36. Masters, Origins of Western Dominance, 10.

37. Ibid.

38. Qushaqji, Al-Amthal, 155.

39. Masters, Origins of Western Dominance, 76. Meriwether also argues for increased integration into the world economy during the period 1750 to 1850 (Kin Who Count, 18).

40. Masters, Origins of Western Dominance, 3.

41. Masters discusses these alliances in Christians and Jews, specifically chap. 3, “Merchants and Missionaries in the Seventeenth Century: The West Intrudes,” 68–97.

42. Yasser Tabbaa, Constructions of Power and Piety in Medieval Aleppo, 23.

43. Marcus, Middle East, 44, 318. This lack of segregation in Aleppo’s quarters was true of later periods as well. See the detailed tables of the various quarters in Heinz Gaube and Eugen Wirth, Aleppo: Historische and geographische Beiträge zur baulichen Gestaltung, zur sozialen Organisation und zur wirtschaftlichen Dynamik einer vorderasiatischen Fernhandelsmetropole, 427–41. The intermixing of social classes within the city quarters is mentioned in Antoine Abdel Nour, Introduction à l’histoire urbaine de la Syrie Ottomane (XVIè–XVIIIè siècle), 165; and Raymond, Great Arab Cities, 57.

44. Jean Sauvaget, Alep: Essai sur le développement d’une grande ville syrienne, des origins au milieu du xixe siècle, 224; André Raymond, Alep à l’époque ottomane (XVIe–XIXe siècle), 95. Charles Wilkins has noted that the 1678 Tapu Tahrir of Aleppo shows the Bab al-Nasr region as the major commercial district of Aleppo (personal communication).

45. Sauvaget, Alep, 225.

46. One court record specifically cites the existence of a Jewish court in Aleppo. The case is of a Jewish woman who sold property to a Jewish man, yet the record makes a reference to the existence of the Jewish court of Aleppo (SMH 34:270:1212 8 Rajab 1090 A.H./August 1679, incorrectly numbered no. 1312 in the sijill).

47. Some early studies of non-Muslims in the courts can be found in the two-volume collection edited by Bernard Lewis and Benjamin Braude: see the articles by Amnon Cohen and Adnan Bakhit in Christians and Jews in the Ottoman Empire: The Functioning of a Plural Society. More recent scholarship on non-Muslims in the empire can be found in Masters’s Christians and Jews and in articles by M. Baer, “Islamic Conversion Narratives”; Fatma Müge Göçek, “The Legal Resource of Minorities in History: Eighteenth-Century Appeals to the Islamic Court of Galata”; and Najwa al-Qattan, “Across the Courtyard: Residential Space and Sectarian Boundaries in Ottoman Damascus.”

48. Masters, Origins of Western Dominance, 19 (quote), 20.

49. Marcus, Middle East, 81.

50. Masters, Origins of Western Dominance, 23. Abdel Nour has argued that this shift did not affect Aleppo as much as other places because the city had strong links of trade with its hinterland (Introduction à l’histoire urbaine, 271).

51. Masters, Origins of Western Dominance, 30–33.

52. Herbert L. Bodman Jr., Political Factions in Aleppo, 1760–1826, viii.

53. Raymond, Urban Networks and Popular Movements, 262, 244–45 (quote on 245).

54. Marcus, Middle East, 73.

55. For more information on this period, see Moshe Ma’oz, Ottoman Reform in Syria and Palestine, 1840–1861: The Impact of the Tanzimat on Politics and Society, 15–20.

56. Meriwether, Kin Who Count, 20.

57. Ma’oz, Ottoman Reform, 22–23.

58. Roderic Davison, “Tanzimat,” 204.

59. See Bruce Masters, “The 1850 Events in Aleppo: An Aftershock of Syria’s Incorporation into the World Capitalist System,”

60. See Ma’oz, Ottoman Reform; and Iris Agmon, Family and Court: Legal Culture and Modernity in Late Ottoman Palestine.

61. The Nizami court is discussed further in chapter 3.

1. ZINA IN ISLAMIC LEGAL DISCOURSE

1. The Tanzimat and its impact on the courts is discussed in more detail in chapter 3. For information about the Tanzimat reforms and their purpose in “reordering” the Ottoman Empire, see Roderic Davison, Reform in the Ottoman Empire, 1856–1876; Ira Lapidus, A History of Islamic Societies, 598–601; and Ma’oz, Ottoman Reform. Its impact on Ottoman law can be found in Dora Glidewell Nadolski, “Ottoman and Secular Civil Law.” For more recent scholarship critiquing the Tanzimat, see Ussama Makdisi, “Ottoman Orientalism,” 770. A more recent critique of Davison’s study can be found in Milen V. Petrov, “Everyday Forms of Compliance: Subaltern Commentaries on Ottoman Reform, 1864–1868.”

2. This thesis is clearly articulated in the introduction and several articles found within Amira Sonbol, ed., Women, the Family, and Divorce Laws in Islamic History. Sonbol focuses elsewhere on the institution of domestic incarceration (“Ta‘a and Modern Legal Reform: A Rereading”). Ann Elizabeth Mayer questions the impact of reform in modern North Africa toward women’s rights in “Reform of Personal Status Laws in North Africa: A Problem of Islamic or Mediterranean Laws?”

3. Khaled Abou el Fadl, Speaking God’s Name: Islamic Law, Authority, and Women, 173.

4. This argument also appears in Aziz al-Azmeh, Islams and Modernities, 12.

5. Haim Gerber, Islamic Law and Culture, 1600–1840, 80.

6. The scholarship concerning this debate has already been cited in the Introduction of this book.

7. J. Burton, “Naskh,” 1011.

8. Joseph Schacht, An Introduction to Islamic Law, 77.

9. Colin Imber, Ebu’s-su‘ud: The Islamic Legal Tradition, 37.

10. Ze’evi, Producing Desire, 49.

11. B. F. Musallam, Sex and Society in Islam: Birth Control Before the Nineteenth Century. Musallam touches on a number of these issues in his groundbreaking analysis of birth control and sexuality. See his discussion of masturbation on p. 33, concubinage on p. 31, and birth control on pp. 15–16.

12. Ze’evi, Producing Desire, 55.

13. James A. Bellamy, “Sex and Society in Islamic Popular Literature,” 30, 37; Rudolph Peters, Crime and Punishment in Islamic Law: Theory and Practice from the Sixteenth to the Twenty-first Century, 61.

14. I will be using Sunni hadith in this study since the court records used in the latter part of the study are in the Hanafi court of law.

15. Several modern gender historians have examined ‘A’isha in the past couple decades. The most comprehensive study to date is Spellberg’s examination of the early and later Muslim sources that include both Sunni and Shiite variations (Politics, Gender, and the Islamic Past). Spellberg uses several of the early Muslim histories that provided narratives of the “affair of the lie.” See examples from Ibn Sa‘d’s Tabaqat al-Kubra, Ibn Hisham’s Kitab sirat rasul Allah, and al-Baladhuri’s Ansab in her study. Other gender histories include Mernissi, Veil and the Male Elite; and “‘A’isha bint Abi Bakr,” in Middle Eastern Muslim Women Speak, edited by Elizabeth Warnock Fernea and Basima Qattan Bezirgan, 27–36. These works were preceded by the work of Nabia Abbott in her biography, Aishah, the Beloved of Muhammed.

16. Spellberg, Politics, Gender, and the Islamic Past, 66.

17. Ibid., 72.

18. J. W. Wright, “Masculine Allusion and the Structure of Satire in Early ‘Abbasid Poetry,” 11.

19. A. A. Duri, The Rise of Historical Writing among the Arabs, 22–23. Duri’s book is an important contribution to a debate about Arab and Islamic history. Often hadiths, in that they are a form of oral history, are dismissed by scholars of the Middle East who argue that they are not a genre of history writing. Like Duri, Tarif Khalidi has argued that hadiths are a form of science that developed out of a tradition of oral transmission performed by professional memorizers, and developed into a science of hadith scholarship (Arabic Historical Thought in the Classical Period).

20. Khalidi, Arabic Historical Thought, 17.

21. For a better discussion of the hadith of ‘A’isha bint Abi Bakr, see “A Tradition of Misogyny (2),” chap. 4 of Mernissi, Veil and the Male Elite.

22. Mernissi frames her study in response to a schoolteacher who hurled a patriarchal hadith her way while she was shopping in a grocery story in Morocco (Veil and the Male Elite, 1–2).

23. Muhammad ibn Ahmad al-Sarakhsi, Kitab al-Mabsut, 9:36.

24. Abu ‘Abdallah Muhammad ibn Isma‘il al-Bukhari, Sahih al-Bukhari, 8:529. Also found in Ahmad ibn Ali ibn Hajar al-Asqalani, Fath al-bari sharh sahih al-Bukhari, 12:153.

25. Bukhari, Sahih al-Bukhari, 8:537. The same hadith is recounted in Muhammad Ibn Ishaq, The Life of Muhammad: A Translation of Ishaq’s “Sirat Rasul Allah,” 684–85; and ‘Abdur Rahman I. Doi, Shari‘ah: The Islamic Law, 239–40.

26. Burton, “Naskh,” 1011.

27. Maurice Gaudefroy-Demombynes and T. Fahd, “Radjm,” 379.

28. The punishment of public humiliation called tajbiya is reserved for those individuals guilty of unlawful intercourse where both offenders were mounted back-to-back on a donkey, paraded in humiliation, and driven out of town (Sir James W. Redhouse, A Turkish and English Lexicon, 497).

29. Al-Bukhari, Sahih al-Bukhari, 8:530.

30. The full text of this longer version of the hadith of Ma‘iz is translated by Peters in Crime and Punishment, 55.

31. Hallaq, History of Islamic Legal Theories, 70.

32. Burhan al-Din Abu’l Hasan ‘Ali ibn Abi Bakr ibn ‘Abd al-Jalil al-Farghani al-Marginani, Hedaya, trans. Charles Hamilton (Lahore: Premier Book House, 1975), 177; single-volume second edition.

33. Ibid.; al-Sarakhsi, Kitab al-Mabsut, 9:37.

34. Al-‘Asqalani, Fath al-bari sharh sahih al-Bukhari, 12:144.

35. Al-Marginani, Hedaya, 176.

36. Al-Bukhari, Sahih al-Bukhari, 8:531.

37. Peters, Crime and Punishment, 20.

38. Bellamy, “Sex and Society,” 37.

39. Al-Bukhari, Sahih al-Bukhari, 8:545; Bellamy, “Sex and Society,” 36.

40. Bellamy, “Sex and Society,” 37.

41. Wright, “Masculine Allusion,” 7.

42. Musallam notes that the Shafi‘i jurist al-Nawawi also agreed with Ibn Malik on masturbation (Sex and Society, 33, 34).

43. See Wahba al-Zuhayli, Al-fiqh al-islami wa ‘adillatuhu, 7:5350; and Khaled Fahmy, All the Pasha’s Men: Mehmed Ali, His Army, and the Making of Modern Egypt, 150n. 167.

44. Barbara von Schlegell, “Sufism in the Ottoman Arab World: Sheikh ‘Abd al-Ghani al-Nabulsi (d. 1143/1731),” 75.

45. Peters, Crime and Punishment, 61.

46. See also Bouhdiba, Sexuality in Islam, 187.

47. The two accounts are found in Bouhdiba, Sexuality in Islam, 188.

48. Mernissi, Veil and the Male Elite, 182–83.

49. Schacht, Introduction to Islamic Law, 29.

50. Schacht, “Hanafiyya.”

51. Schacht, Introduction to Islamic Law, 43.

52. Ibid., 46.

53. Peters, Crime and Punishment, 71.

54. Schacht argues that the Hanafi code was chosen by the Ottomans because it “had always been a favourite of the Turkish peoples” (Introduction to Islamic Law, 89).

55. See Imber, Ebu’s-su‘ud, chap. 3, which discusses the role of the sultan in Hanafi jurisprudence.

56. Ibid., 30; Peirce, Morality Tales, 114.

57. Imber, Ebu’s-su‘ud, 30–31; Peirce, Morality Tales, 123.

58. Al-Marginani, Hedaya, 182 (emphasis added).

59. Ahmed Hafiz Nur, Jarimat al-zina fi al-qanun al-misri wa al-muqarin, 18.

60. Imber, Ebu’s-su‘ud, 236, concerning the legal category of ghasb; Hans Wehr, A Dictionary of Modern Written Arabic, 675; Schacht, “Zina.”

61. Al-Sarakhsi, Kitab al-Mabsut, 5:78, 184. Also cited in Colin Imber, “Zina in Ottoman Law,” 176.

62. Al-Sarakhsi, Kitab al-Mabsut, 5:81; al-Marginani, Hedaya, 44.

63. Al-Marginani, Hedaya, 44. Note that darahim is the plural of dirham, a unit of currency. The use of ten darahim as dowry is also noted in many Christian marriage contracts found in the Aleppo court, most noticeably in the eighteenth century, in which women consistently asked for dowries of 10 ghrush (the standard monetary unit in Ottoman Aleppo). Because of the consistency of the cases, it appears the courts used this hadith of the Prophet Muhammad as a basis for dowry. See some sample court cases in SMH 55 85:269 2 Shawwal 1146 A.H./March 1734; SMH 64:10:25 11 Dhu’l-Qa‘da 1154 A.H./January 1742; SMH 64:122:336 15 Rabi‘ al-Thani 1154 A.H./June 1741; SMH 94:127:305 22 Muharram 1176 A.H./August 1762; SMH 130:74:194 12 Sha‘ban 1200 A.H./June 1786; and SMH 157:61:140 5 Sha‘ban 1220 A.H./October 1805.

64. E. Tyan, “Diya.” See also Peters on diya and arsh (Crime and Punishment, 49–53).

65. Imber, Ebu’s-su‘ud, 238.

66. Ibrahim al-Halabi, Al-Multaqa al-abhur, 87. Also noted in Leslie Perice, Morality Tales, 89.

67. Peters, Crime and Punishment, 7.

68. Lawrence Rosen, The Justice of Islam: Comparative Perspectives on Islamic Law and Society, 75.

69. Gerber, Islamic Law and Culture, 39; Peters, Crime and Punishment, 65–67.

70. Peters, Crime and Punishment, 66.

71. Schacht, Introduction to Islamic Law, 179: Fadl Ilahi, Al-Tadabir al-waqiya min al-zina fi al-fiqh al-Islami, 48.

72. It is worth noting that during my study in the Aleppo archives, I did not find any cases of li‘an divorce. But this fact could also be owing to the unique characteristics of the Aleppo archives in that zina is a word rarely used. Another possibility is that this type of divorce procedure existed more in theory than in practice.

73. Al-Bukhari, Sahih al-Bukhari, 9:67.

74. Sonbol, “Rape and Law,” 223.

75. Peirce, Morality Tales, 90, 132.

76. Al-Marginani, Hedaya, 178. For the Hanbali reference, see the fatwa of Ibn Taymiyya in Ahmad ibn ‘Abd al-Halim ibn Taymiyya, Fatawa al-nisa’, 294.

77. Muhammad Sharaf al-Din Khattab, Jarimat al-zina wa ‘uqubituha fi al-fiqh al-islami dirasah muqaranah, 218. See also Gaudefroy-Demombynes and Fahd, “Radjm.”

78. Peters, Crime and Punishment, 61. For a full definition of muhsan, see Shaykh Asad Muhammad Sa‘id al-Saghirji, Al-fiqh al-hanafi wa ‘adillatuhu, 2:294.

79. Peters, Crime and Punishment, 61, 63.

80. Muhammad Faruq al-Nabhan, Mabahith fi al-tashri‘ al-jina’i al-Islami: Al-qatl, al-zina, al-sariqah, 306.

81. This problem is addressed in Asifa Quraishi, “Her Honor: An Islamic Critique of the Rape Laws of Pakistan from a Woman-Sensitive Perspective,” 119–20. Peirce discusses the problematic treatment of women’s testimony in Morality Tales, 147.

82. Al-Nabhan, Mabahith fi al-tashri‘, 306, 309.

83. Ibid., 308; al-Halabi, Al-Multaqa al-abhur, 87; Peters, Crime and Punishment, 37.

84. Peters, Crime and Punishment, 37; Sadiq ibn Muhammad al-Saqazi, Surat al-fatawa al-Saqazi, 62.

85. Al-Halabi, Al-Multaqa al-abhur, 78; Khattab, Jarimat al-zina, 251. The size of the stones is also mentioned in Peters, Crime and Punishment, 37.

86. Al-Halabi, Al-Multaqa al-abhur, 88; Khattab, Jarimat al-zina, 249.

87. Al-Marginani, Hedaya, 180.

88. All accounts of the stoning of al-Ghamidiyya are taken from al-‘Asqalani, Fath al-bari sharh sahih al-Bukhari, 12:454–58.

89. Al-Marginani, Hedaya, 181. See also al-Sarakhsi, Kitab al-Mabsut, 9:101. Al-‘Asqalani, Fath al-bari sharh sahih al-Bukhari, discusses it in 12:174–77.

90. Al-Marginani, Hedaya, 179–80; Peters, Crime and Punishment, 37.

91. Al-Marginani, Hedaya, 180.

92. Freidoune Sahebjam, The Stoning of Soraya M. The biblical passage noted reads: “The dogs shall eat Jezebel in the territory of Jezreel, and no one shall bury her” (2 Kings 9:10).

93. Al-Marginani, Hedaya, 178.

94. Ibid., 182; al-Sarakhsi, Kitab al-Mabsut, 9:73; al-‘Asqalani, Fath al-bari sharh sahih al-Bukhari, 12:455.

95. Cited in al-Marginani, Hedaya, 176.

96. Al-Halabi, Al-Multaqa al-abhur, 87.

97. Ta‘zir amongst the Ottomans was bastinado: “The culprit was laid on the ground and his feet were immobilised between a stout pole or board (falaka) and a rope passed through two holes at its ends. Two men lifted the pole so that only the offender’s shoulders touched the ground. Two others then inflicted strokes on the bare soles (and other parts of the body) with long pliant sticks about one finger thick” (Uriel Heyd, Studies in Old Ottoman Criminal Law, 273).

98. Muhammad ibn ‘Abd al-Rahman al-‘Uthmani, Rahmat al-ummah fi ikhtilaf al-a’immah: Fatawa a’immat al-madhahib al-arba‘ah, Abu Hanifah, Malik, al-Shafi‘i, Ahman ibn Hanbal, 284; al-Sarakhsi, Kitab al-Mabsut, 9:43; al-Saqazi, Surat al-fatawa al-Saqazi, 63.

99. Doi notes that some jurists found the lashing prior to stoning for married offenders redundant and contradictory to other hadiths where the Prophet prescribed only stoning (Shari‘ah, 238; see also al-Marginani, Hedaya, 181; and al-Sarakhsi, Kitab al-Mabsut, 9:43–44).

100. Al-Marginani, Hedaya, 179; al-Halabi, Al-Multaqa al-abhur, 88.

101. Al-Marginani, Hedaya, 179.

102. Al-Nabhan, Mabahith fi al-tashri‘, 307, 306.

103. Al-Marginani, Hedaya, 179; al-Halabi, Al-Multaqa al-abhur, 87.

104. Al-Marginani, Hedaya, 179.

105. Al-Nabhan, Mabahith fi al-tashri‘, 305; al-Sarakhsi, Kitab al-Mabsut, 9:100.

106. Fahmy, All the Pasha’s Men, 128.

2. ZINA IN OTTOMAN LAW

1. Parts of this chapter were previously published in a book chapter titled “Gender Violence in Kanunnames and Fetvas of the Sixteenth Century.”

2. For consistency in style, I will use the Arabic spelling of fatwa versus the Turkish term fetva for juridical opinions in the Ottoman tradition.

3. Some studies have used Ottoman fatwas from Arab muftis to varying degrees. A few examples include Masud, Messick, and Powers, Islamic Legal Interpretation; Tucker, In the House of the Law; and von Schlegell, “Sufism in the Ottoman Arab World.”

4. Good examples of provincial fatwas can be found in Tucker, In the House of the Law; and von Schlegell, “Sufism in the Ottoman Arab World.”

5. Imber, Ebu’s-su‘ud, 6.

6. Heyd, Old Ottoman Criminal Law, 196; Peirce, Morality Tales, 313–18.

7. Imber, “Zina in Ottoman Law,” 182; al-Marginani, Hedaya, 176; Heyd, Old Ottoman Criminal Law, 280; Schacht, Introduction to Islamic Law, 69.

8. Imber, “Zina in Ottoman Law,” 183.

9. Shubha is also discussed by Powers in “Kadijustiz or Qadi-Justice?” 339, 358.

10. Al-Marginani, Hedaya, 182; Imber, “Zina in Ottoman Law,” 177.

11. Imber, “Zina in Ottoman Law,” 179.

12. Al-Saqazi, Surat al-fatawa al-Saqazi, 63; Tucker, In the House of the Law, 161. The prevalence of prostitution is fully documented in chapter 5.

13. Imber, “Zina in Ottoman Law,” 177, 178 (quote). Imber cites examples from Hanafi jurists al-Kuduri and al-Sarakhsi.

14. Imber, Ebu’s-su‘ud, 6.

15. Dick Douwes, The Ottomans in Syria: A History of Justice and Oppression, 212.

16. Heyd, Old Ottoman Criminal Law, 177.

17. Boğaç A. Ergene, Local Court, Provincial Society, and Justice in the Ottoman Empire: Legal Practice and Dispute Resolution in Çankırı and Kastamonu, 1652–1744, 104.

18. This ideal vision of Ottoman justice has been challenged in recent studies. See Douwes, Ottomans in Syria; Ergene, Local Court, 104; and Van Den Boogert, The Capitulations and the Ottoman Legal System: Qadis, Consuls, and Beratlıs in the 18th Century.

19. Huri İslamoğu-İnan, State and Peasant in the Ottoman Empire: Agrarian Power and Regional Economic Development in Ottoman Anatolia During the Sixteenth Century, 7.

20. Douwes, Ottomans in Syria, 153.

21. Imber, Ebu’s-su‘ud, 38 (quote), 95.

22. Ibid., 89–90. See chapter 3 of the same work for a discussion of the role of the sultan in Hanafi jurisprudence.

23. Uriel Heyd, “Kanun and Shari‘a in Old Ottoman Criminal Justice,” 3.

24. Halil Inalcik, “Suleiman the Lawgiver and Ottoman Law,” 116; Inalcik, The Ottoman Empire: The Classical Age, 1300–1600, 70.

25. Inalcik, “Suleiman the Lawgiver,” 116.

26. The kanunnames of Aleppo are found in the Başbakanlık Archives in Istanbul as folio no. 493, Kanunname Liwa’ Haleb. I would like to thank Charles Wilkins of Harvard University for giving me a copy of it. The earlier version of the Kanunname Liwa’ Haleb issued by Sultan Süleyman is published along with the kannuname of Selim I for Bilad al-Sham in Ahmed Akgündüz, Osmanlı Kanunnâmeleri ve Hukukî Tahlilleri, vols. 5 and 3. Neither of the kanunnames deals with criminal matters. Heyd affirms that provincial kanunnames did not contain criminal codes, as the Ottoman criminal code was already in place. There were three exceptions: Niğbolu (Nikopol), Cephalonia, and Montenegro (Old Ottoman Criminal Law, 38, 41).

27. I would like to thank Yvonne Seng, who introduced me to the kanunname of Selim I when she taught Ottoman Turkish at Georgetown from 1996 to 1998. That being said, any errors in translation or interpretation are my own. For Heyd’s translation of the kanunname of Süleyman, see his Old Ottoman Criminal Law. There are several untranslated copies of Ottoman kanunnames that have been published in both the original Ottoman script and transliteration by Ahmed Akgündüz. These resources are excellent for anyone who seeks to systematically chart the development of the kanunname. See Osmanlı Kanunnâmeleri ve Hukukî Tahlilleri.

28. Inalcik, “Suleiman the Lawgiver,” 118, 126.

29. Imber, Ebu’s-su‘ud, 245.

30. Heyd, Old Ottoman Criminal Law, 95.

31. Ibid., 96 (quotes). Heyd argues that the husband is viewed as being liable because he condoned her actions (96).

32. Al-Marginani, Hedaya, 181; Imber, “Zina in Ottoman Law,” 188. The text reads, “Eğer bir kişi püzavinklik itse kazi ta‘zir idüb teşhir ağaça bir cürm alına” (Selami Pulaha and Yaşar Yücel, “I. Selim Kanunnamesi (1512–1520) ve XVI. Yüzyılın İkinci Yarısının kimi kanunları.” Belgeler 53.

33. Heyd, Old Ottoman Criminal Law, 102, 110.

34. Ibid., 201, 136.

35. Heyd relates that only two siyasetnames have been located, one from the period of Mehmet II and the other Selim I (ibid., 16, 59, 98, 114, 265).

36. Inalcik, Ottoman Empire, 50–51.

37. The text reads, “kız ya avret çikup cebr ile” (Pulaha and Yücel, Derbeyan-i Kanunname-i ‘Osmanı, 51).

38. Ibid. Also found in Süleyman’s kanunname (Heyd, Old Ottoman Criminal Law, 97).

39. Heyd, Old Ottoman Criminal Law, 98, 59.

40. Tucker, In the House of the Law, 164.

41. This point has been made in several works by Beshara Doumani, including “Palestinian Islamic Court Records: A Source for Socioeconomic History,” 157n6; and Rediscovering Palestine: Merchants and Peasants in Jabal Nablus, 1700–1900, 11. Meriwether makes the same argument in Kin Who Count, 13.

42. Heyd, Old Ottoman Criminal Law, 100.

43. Pulaha and Yücel, “I. Selim Kanunnamesi (1512–1520) ve XVI. Yüzylını İkinci Yarısım Kimi Kanunları,” 51; Heyd, Old Ottoman Criminal Law, 100.

44. I would like to thank Katherine Coughlin-De for her comments on this section when parts of it were presented as a paper in Yvonne Seng’s graduate seminar in Ottoman history at Georgetown University in 1997. She interpreted the cutting of a woman’s hair as a metaphor for shaming a woman.

45. Heyd, Old Ottoman Criminal Law, 110.

46. Ibid., 98.

47. Al-Marginani, Hedaya, 185.

48. Heyd, Old Ottoman Criminal Law, 103.

49. See Ralph Hattox, Coffee and Coffeehouses: The Origins of a Social Beverage in the Medieval Near East, 109.

50. Pulaha and Yücel, Derbeyan-i Kanunname-i ‘Osmanı, 52.

51. Heyd, Old Ottoman Criminal Law, 136.

52. Pulaha and Yücel, Derbeyan-i Kanunname-i ‘Osmanı, 51.

53. Redhouse, Turkish and English Lexicon, 1156.

54. Frederic M. Goadby, Commentary on Egyptian Criminal Law, 84.

55. Haim Gerber, State, Society, and Law in Islam: Ottoman Law in Comparative Perspective, 53.

56. Heyd, Old Ottoman Criminal Law, 99.

57. Pulaha and Yücel, Derbeyan-i Kanunname-i ‘Osmanı, 51; Heyd, Old Ottoman Criminal Law, 99, Peirce, Morality Tales, 273–74.

58. Heyd, Old Ottoman Criminal Law, 98.

59. Ibid., 109–10.

60. Pulaha and Yücel, Derbeyan-i Kanunname-i ‘Osmanı, 51.

61. Al-Marginani, Hedaya, 176 (emphasis added). See also Imber, “Zina in Ottoman Law,” 187; and Doi, Shari‘ah, 237.

62. von Schlegell, “Sufism in the Ottoman Arab World,” 74.

63. Pulaha and Yücel, Derbeyan-i Kanunname-i ‘Osmanı, 53.

64. Sonbol, “Rape and Law,” 214.

65. Tucker, In the House of the Law, 152.

66. For a case in which a woman was stoned based on her husband’s suspicion of bad intentions with a neighbor, see Sahebjam, Stoning of Soraya M., 60; and Quraishi, “Her Honor,” 118.

67. Discussed in Fedwa Malti-Douglas, Woman’s Body, Woman’s Word: Gender and Discourse in Arabo-Islamic Writing, 57–59; and Stowasser, Women in the Qur’an, 50–56.

68. Malti-Douglas, Woman’s Body, 6; Stowasser, Women in the Qur’an, 51.

69. Malti-Douglas’s analysis of patriarchal themes in Arabic literature illuminates the subject covered in this paragraph. She outlines the entire frame story of the 1001 Nights in WomanXs Body, 14.

70. Ibid., 87–88.

71. Ibid., 54, 55 (quote).

72. Peirce has noted, “Again, no term for ‘honor’ appears in the ‘Ayntab records, yet it was clearly at stake in many cases at court” (Morality Tales, 179).

73. Imber, Ebu’s-su‘ud, 7.

74. It may be a point of contention whether Ottoman fatwas and kanunnames have much relevance outside of Anatolia. Future study on the use of fatwas in different social contexts may demonstrate such variety of uses. Moreover, how much Ebu’s Su‘ud’s fatwas were used in the provinces has yet to be investigated. For instance, Ibn ‘Abidin of Damascus cites Ebu’s Su‘ud quite often, even in the nineteenth century. His fatwas were also cited occasionally in the court records of Aleppo. The full impact of the kanunnames in the Ottoman provinces has yet to be studied.

75. Uriel Heyd, “Aspects of the Ottoman Fatwa,” 46.

76. Ibid. The fatwas of muftis mentioned in Tucker’s study In the House of the Law, such as Khayr ad-Din ibn Ahmad al-Ramli, al-‘Imadi, and al-Tamimi, have more elaborate answers than Ebu’s Su‘ud’s, whose answers are sometimes extremely brief.

77. See Messick, Calligraphic State.

78. Douwes, Ottomans in Syria, 81.

79. SMH 45:604:243 20 Rabi‘ al-Awwal 1131 A.H./February 1719.

80. See Tucker, In the House of the Law.

81. Hallaq, History of Islamic Legal Theories, 160. Imber disagrees with Hallaq on this point in particular (Ebu’s-su‘ud, 272n5).

82. Ebu’s Su‘ud’s fatwas have been used extensively in two studies by Imber, “Zina in Ottoman Law” and Ebu’s-su‘ud, and to a lesser extent by Peirce in Morality Tales.

83. Imber, “Zina in Ottoman Law,” 201.

84. Mehmet Ertuğrul Duzdağ, Şeyhülislam Ebussuud Efendi Fetvaları Işığında 16 Asır Türk Hayatı, 157.

85. Al-Sarakhsi, Kitab al-Mabsut, 17:23. Alternatively, this punishment is stated in al-Marginani, Hedaya, 178.

86. Gerber, State, Society, and Law in Islam; Marcus, Middle East; Rafeq, “Public Morality”; Yvonne Seng, “Standing at the Gates of Justice: Women in the Law Courts of Early-Sixteenth-Century Üsküdar, Istanbul”; Sonbol, “Law and Gender Violence.”

87. Quraishi, “Her Honor,” 133; Sonbol, Women of Jordan: Islam, Labor, and the Law, 203.

88. Duzdağ, Şeyhülislam Ebussuud Efendi, 158; Imber, “Zina in Ottoman Law,” 214.

89. Gerber, State, Society, and Law, 53.

90. Peters, Crime and Punishment, 25.

91. Duzdağ, Şeyhülislam Ebussuud Efendi, 158.

92. Tucker, In the House of the Law, 65.

93. Imber, “Zina in Ottoman Law,” 187.

94. See Gerber, State, Society, and Law; Sonbol, “Law and Gender Violence”; and Sonbol, “Rape and Law.” See part 2, “Ine’s Story,” which discusses a rape case from ‘Ayntab, in Peirce, Morality Tales, 129–42.

95. Duzdağ, Şeyhülislam Ebussuud Efendi, 158.

96. Imber, “Zina in Ottoman Law,” 80.

97. Peters, Crime and Punishment, 26; Schacht, Introduction to Islamic Law, 184.

98. Duzdağ, Şeyhülislam Ebussuud Efendi, 158.

99. Imber, Ebu’s-su‘ud, 251, 252.

100. Natalie Zemon Davis, Fiction in the Archives: Pardon Tales and Their Tellers in Sixteenth-Century France, 12, 95. The full transcript of this court case is translated by Ze’evi in An Ottoman Century: The District of Jerusalem in the 1600s, 177–78.

101. Tucker, In the House of the Law, 152.

102. Douwes, Ottomans in Syria, 152.

103. Heyd, Old Ottoman Criminal Law, 274.

104. Ibid., 263.

105. Heyd, Old Ottoman Criminal Law, 32; Heyd, “Kanun and Shari‘a,” 15–16.

3. PEOPLE AND COURT: POLICING PUBLIC MORALITY IN THE STREETS OF ALEPPO

1. See Rafeq, “Public Morality.”

2. Cengiz Kırlı, “The Struggle over Space: Coffeehouses of Ottoman Istanbul, 1780–1845,” 72–73.

3. Peirce, Morality Tales, 169. See also Kırlı, “Struggle over Space,” 76.

4. These sources may have been used by local historians and genealogists who frequent the archives today and do not publish their work academically. For examples of earlier work done in the field of Ottoman history with Syrian court records, see Jon E. Mandeville, “The Ottoman Court Records of Syria and Jordan”; Abdul Karim Rafeq, “The Law-Court Registers and Their Importance for a Socio-economic and Urban Study of Ottoman Syria”; and James A. Reilly, “Shari‘a Court Registers and Land Tenure Around Nineteenth-Century Damascus,” 167.

5. Unique in this respect is the work of Ergene, who has addressed both the administration of law and comparisons with other courts in Local Court.

6. More critical readings of the court record as a source can be found in Iris Agmon, “Muslim Women in Court According to the Sijill of Late Ottoman Jaffa and Haifa: Some Methodological Notes”; Doumani, Rediscovering Palestine; Ergene, Local Court; Peirce, Morality Tales; and Ze’evi, “Use of Ottoman Shari‘a Court Records.”

7. Ze’evi systematically critiques the quantification, narrative, and microhistory written with the help of court records. He lays out two agendas for future research, the study of court narratives and the study of the actual structure of the court (“Use of Ottoman Shari‘a Court Records,” 43).

8. Ibid., 38. Similar methodological problems concerning the court records are posed by Ronald C. Jennings in “Kadi, Court, and Legal Procedure in 17th Century Ottoman Kayseri,” 133.

9. A good example is Peirce’s discussion of Ottoman ‘Ayntab in which she looks to kanunnames for guidance on punishments because no record of their taking place exists in the court record (Morality Tales, 188).

10. Examples of cases in which ta‘zir bi’l-darb was administered as punishment can be seen in SMH 34:80:469 2 Shawwal 1098 A.H./August 1687 (drinking); SMH 55:124:395 23 Dhu’l Hujja 1147 A.H./May 1735 (prostitution); SMH 55:137:434 8 Muharram 1148 A.H./May 1735 (homosexuality and drinking); SMH 55:152:481 4 Safar 1148 A.H./June 1735 (prostitution); SMH 55:251:770 6 Rajab 1148 A.H./November 1735 (cursing and evildoing); and SMH 64:566:197 23 Ramadan 1154 A.H./December 1741 (harmful).

11. Ergene, Local Court, 130.

12. These arguments are found in ibid., 126–27; and Peirce, Morality Tales, 101. Examples from the Aleppo records include SMH 28:18:63 21 Muharram 1071 A.H./September 1660; and SMH 85:16:45 15 Rajab 1167 A.H./May 1754

13. Doumani, Rediscovering Palestine, 11; Ze’evi, “Use of Ottoman Shari‘a Court Records,” 37.

14. Davis, Return of Martin Guerre.

15. Ergene, Local Court, 134.

16. See the court record located in appendix 1. Note the awkward use of the letters kaf and ya to indicate second-person feminine in the document, an example of the idiosyncrasies of the scribe (SMH 94:123:269 4 Dhu’l-Qa‘da 1175 A.H./May 1762).

17. In some cases, a full sense of the colloquial language is noted through the use of first-person colloquial speech patterns. See the rape case discussed in chapter 6 (SMH 94:123:269 4 Dhu’l-Qa‘da 1175 A.H./May 1762).

18. Some of the early volumes in particular are missing. Therefore, I have significant gaps in the formative years of Ottoman rule over Aleppo from 1515 to 1540 (see table 3.1). See Ze’evi’s critique of quantitative analysis (“Use of Ottoman Shari‘a Court Records,” 39–45).

19. Doumani, Rediscovering Palestine, 11; Meriwether, Kin Who Count, 13; Jennings, “Kadi, Court, and Legal Procedure,” 147; Ergene, Local Court, 177.

20. Ergene has devoted an entire chapter of his book Local Court to this very subject (chap. 5, “Costs of Court Usage,” 76–98).

21. An example of plaintiffs seeking another ruling is SMH 94:123:269 4 Dhu’l-Qa‘da 1175 A.H./May 1762. The full document is translated and discussed in chapter 5. Ergene discusses the role of the governor in administration of justice in Ottoman Çankırı and Kastamonu (Local Court, 107, 176).

22. The police prison (habs al-dhabt) is mentioned in documents SMH 113:164:454 25 Rabi‘ al-Awwal 1190 A.H./May 1776 and SMH 113:200:491 10 Jumada al-Ula 1190 A.H./June 1776. For an example of the sultan’s prison (al-sijin al-sultani) see SMH 34:167:828 18 Safar 1090 A.H./March 1679 and SMH 34:135:601 25 Dhu’l Hijja 1089 A.H./February 1679 (this document was numbered incorrectly as document no. 701 in the original sijill).

23. Alexander Russell, The Natural History of Aleppo, 1:333.

24. Bodman, Political Factions, 13. On the subject of tufınkjis, see Marcus, Middle East, 115. Only four cases of the police actually entering the court were found during the research conducted for this study. For instance, in one court case a subaşı (police chief) appeared in court to relate the details of a case in which a man destroyed the property of another, then fled the scene. The second case in which a subaşı appeared was in 1555, where the officer apprehended three men “drunk on alcohol.” See SMH 10:938:4567 14 Jumada al-Akhir 1019 A.H./September 1610; SMH 1:294:284 8 Shawwal 962 A.H./August 1555; SMH 27:102:437 26 Shawwal 1068 A.H./July 1659; SMH 28: 265: 1009 Jumada al-Awwal 1071 A.H./January 1661. Peirce notes that the subaşı frequently appeared at court in Ottoman ‘Ayntab. She found that in the year under study, two-thirds of the zina- and other related offenses were brought to court by Ottoman officials, one-third by private individuals (Morality Tales, 288, 358). This dynamic stands in stark contrast to the cases brought to court in Aleppo, almost exclusively by individuals and communities.

25. Heyd, Old Ottoman Criminal Law, 235, 238.

26. Ibid.; Ronald C. Jennings, “The Judicial Registers (Ser‘i Mahkeme Sicilleri) of Kayseri (1590–1630) as a Source of Ottoman History”; Jennings, “Kadi, Court, and Legal Procedure”; and Gamal al-Nahal, Judicial Administration in Ottoman Egypt in the Seventeenth Century. Ergene’s Local Court and Agmon’s Family and Court are nice follow-ups to these earlier studies.

27. Marcus, Middle East, 80–82; Abdul Karim Rafeq, The Province of Damascus, 1723–1783, 44. An exception would be the use of local judges, often from the same family (Kaylani) in smaller towns such as Hama, as recorded in Douwes, Ottomans in Syria, 82. For Damascus, Stephen Edmond Tamari has noted that judges were regularly rotated (“Teaching and Learning in 18th-Century Damascus: Localism and Ottomanism in an Early Modern Arab Society,” 96).

28. Marcus, Middle East, 80.

29. Linda Schatowski Schilcher, Families in Politics: Damascene Factions and Estates of the 18th and 19th Centuries, 116.

30. Marcus, Middle East, 103. An example can be seen in the annulment of the Bedouin woman Fatima bint ‘Abdallah to her absent husband. See SMH 55:171:544 25 Rabi‘ al-Awwal 1148 A.H./August 1735 and from the Shafi‘i court itself, SMH 155:68:270 12 Safar 1220 A.H./May 1805.

31. Court registers missing this title page may have been damaged, as the volumes have been bound and rebound throughout the years.

32. Iris Agmon has been able to track down the names of several levels of scribes in her study of late Ottoman Haifa (Family and Court, chap. 3). The Aleppo registers do no specifically name court scribes. On the office of scribe, see Schilcher, Families in Politics, 117. Tamari has noted that court scribes are rarely mentioned in al-Muradi’s biographical dictionary (“Teaching and Learning,” 117).

33. Tamari, “Teaching and Learning,” 96.

34. Meriwether, Kin Who Count, 13.

35. Judith Tucker, “Muftis and Matrimony: Islamic Law and Gender in Ottoman Syria and Palestine,” 296.

36. The structure of the court records of Ottoman Syria are discussed in more detail in Rafeq, “Law-Court Registers.”

37. Brigitte Marino and Tomoki Okawara, eds., Dalil sijillat al-mahakim al-shar‘iyya al-‘uthmaniyya, 44.

38. Fariba Zarinebaf has found police records in Istanbul, as mentioned during the delivery of her unpublished paper (“Regulating Prostitution”).

39. The officials at the Syrian archives claimed that the nizami court records, which were the criminal court records for the city of Aleppo, were destroyed (burned) during the French mandate period. I continued to search in vain for these records in the shari‘a court of Aleppo, the Ministry of Waqfs (Dar al-Awqaf), and the Saray (Shourta Jina’iah), which is where contemporary criminal cases are delivered. I never found any criminal court records for the Tanzimat era. I received this information, along with a tour of both localities, from Suleyman Nasr, a lawyer who served as minister of endowments (awqaf) from 1959 to 1979 and the district chief (ra’is baladiyya) for Aleppo in 1961.

40. This information was also obtained from Suleyman Nasr.

41. Marino and Okawara, Dalil sijillat, 44.

42. Marcus, Middle East, 315–16. André Raymond notes that the earliest Tapu register from 1537–38 records seventy quarters in Aleppo (“The Population of Aleppo in the Sixteenth and Seventeenth Centuries According to Ottoman Census Documents,” 453).

43. Abdel Nour, Introduction à l’histoire urbaine, 174.

44. Raymond, “Population of Aleppo.” The Christian composition of the quarter of Saliba al-Judayda is also discussed in Meriwether, Kin Who Count, 28.

45. Lapidus, History of Islamic Societies, 85. Marcus says, “There was no neighborhood exclusively Jewish or Christian in its composition” (Middle East, 44).

46. Muhsin ‘Ali Shuman, Al-yahud Fi misr al-‘uthmaniyah hatta awa’il al-qarn al-tasi‘ ‘ashar, 1:29; al-Qattan, “Across the Courtyard”; Kırlı, “Struggle over Space,” 92.

47. SMH 34:80:369 2 Shawwal 1089 A.H./November 1678. This document was numbered incorrectly as no. 469 but actually appears as no. 369 in the sijill.

48. Lapidus, History of Islamic Societies, 87. Marcus, basing his argument on real estate prices, finds the most affluent neighborhoods to be in the center of the city (Middle East, 318–22).

49. Although using walad instead of ibn is improper use of the Arabic language, I have written the names exactly as they appear in the documents. The court records differentiated between Christian and Muslim names on several levels. Christian names were not written using ibn as in Muslim names. Instead, walad was used in the original document to signify a Christian name. Furthermore, Christian names were often misspelled purposely by the scribe; for example, the shared Muslim and Christian name of Yusuf (in Arabic), spelled in proper Arabic, was purposely misspelled as (in Arabic with Sad) when a Christian was documented. This type of differentiation has been studied by Najwa al-Qattan in her article “Textual Differentiation in the Damascus Sijill: Religious discrimination or Politics of Gender?”

50. SMH 64:276:795 23 Safar 1155 A.H./April 1742.

51. SMH 34:106:473 (misnumbered in the sijill) 23 Shawwal 1087 A.H./December 1676 and SMH 34:108:480 (misnumbered in the sijill) 23 Shawwal 1087 A.H./December 1676. These cases are discussed later in chapter 6.

52. Ira Lapidus, Muslim Cities in the Later Middle Ages, 80.

53. Marcus, Middle East, 51.

54. Lapidus, Muslim Cities, 82; Marcus, Middle East, 51.

55. Schilcher, Families in Politics, 124.

56. Raymond, Urban Networks and Popular Movements, 250.

57. Albert Hourani, “Ottoman Reform and the Politics of Notables.” Additional studies have tested Hourani’s paradigm in several Arab provinces (in Mosul, Dina Rizq Khoury, State and Provincial Society in the Ottoman Empire: Mosul, 1540–1834; in Damascus, Rafeq, Province of Damascus; and Philip Khoury, Urban Notables and Arab Nationalism: The Politics of Damascus, 1860–1920).

58. Meriwether, Kin Who Count, 31. Tamari examines the role of Damascene ‘ulama in local Ottoman government in his dissertation (“Teaching and Learning”).

59. Meriwether, Kin Who Count, 19.

60. Marcus, Middle East, 74.

61. Ibid., 66.

62. Lapidus, Muslim Cities, 82, 83.

63. Amira El-Azhary Sonbol, The New Mamluks: Egyptian Society and Modern Feudalism, xxviii.

64. This documentation is also observed in Jennings, “Kadi, Court, and Legal Procedure,” 142.

65. The full record cases in which the defendant(s) bore social titles can be observed in the names of defendants convicted of zina-related crimes in appendix 2. See sample cases of sayyids in SMH 85:92:249 1 Dhu’l Hijja 1167 A.H./September 1754; SMH 113:233:584 17 Rajab 1190 A.H./September 1776; and SMH 55:53:175 6 Jumada al-Akhir 1147 A.H./November 1734; and hajjis in SMH 64:172:495 6 Rajab 1154 A.H./September 1741; SMH 55:152:481 4 Safar 1148 A.H./June 1735; and SMH 45:8:19 16 Jumada al-Akhir 1130 A.H./May 1718.

66. This finding is in stark contrast to a recent study by Boğaç Ergene that found a majority of litigants, in all cases that appeared in three sijills in Kastamonu, were from the military and religious establishment (“Social Identity and Patterns of Interaction in the Shari‘a Court of Kastamonu, 1740–44”).

67. Lapidus, Muslim Cities, 92; Abdel Nour, Introduction à l’histoire urbaine, 162–63; Raymond, Great Arab Cities, 15.

68. Abdel Nour, Introduction à l’histoire urbaine, 156.

69. Lapidus, Muslim Cities, 93.

70. Abdel Nour, Introduction à l’histoire urbaine, 162–63; Raymond, Great Arab Cities, 3.

71. Amy Singer, Palestinian Peasants and Ottoman Officials: Rural Administration Around Sixteenth-Century Jerusalem, 36. Cem Behar describes a similar position of the mukhtar, who was a local community leader who was also officially connected with Ottoman authorities in the Kasap İlyas quarter in Istanbul (Neighborhood in Ottoman Istanbul, 160–71).

72. Lapidus, Muslim Cities, 94.

73. Heyd, “Kanun and Shari‘a,” 15–16.

74. Marcus, Middle East, 116.

75. Peirce, Morality Tales, 90.

76. Heyd, Old Ottoman Criminal Law, 130–31, 242.

77. Marcus, Middle East, 117. Ze’evi makes a similar argument in Producing Desire, 60.

78. Heyd, Old Ottoman Criminal Law, 106, 115.

79. Imber, Ebu’s-su‘ud, 89. Ze’evi has also argued that communities were responsible for monitoring morality, expelling criminals, and handing them over to the police (Producing Desire, 60).

80. Imber, Ebu’s-su‘ud, 127.

81. Peirce, Morality Tales, 274. Pulaha and Yücel, “I. Selim Kanunnamesi (1512–1520) ve XVI. Yüzylını İkinci Yarısım Kimi Kanunları.” Belgeler, 53. This passage is also discussed in chapter 2.

82. See individual punishments for wine consumption and distribution in codes 61 and 62. For a lack of collective punishment for zina crimes, see codes 29 and 30 in Heyd, Old Ottoman Criminal Law, 111, 102, respectively.

83. Ibid., 130. Also mentioned in Peirce, Morality Tales, 263.

84. Heyd, Old Ottoman Criminal Law, 229.

85. Peirce, Morality Tales, 169.

86. Heyd, Old Ottoman Criminal Law, 130.

87. Rafeq, “Public Morality,” 180, 181.

88. Scholarship on the local tradition of the qabaday is very meager at the moment. Philip Khoury has described the institution and written a biography of a local Damascene qabaday (pronounced abaday in Syrian colloquial Arabic) he interviewed (“Abu Ali al-Kilawi: A Damascus Qabaday”).

89. Russell, Natural History of Aleppo, 2:55–56.

90. Cases located that express a fear of possible fines placed on the community include SMH 36:53:145 28 Jumada al-Akhir 1098 A.H./May 1687; SMH 45:350:869 28 Ramadan 1131 A.H./August 1719; SMH 55:276:833 21 Sha‘ban 1148 A.H./January 1736; SMH 85:103:283 7 Dhu’l Hijja 1176 A.H./June 1763; SMH 64:198:566 23 Ramadan 1154/December 1741; and SMH 113:89:208 18 Rajab 1189 A.H./September 1775.

91. Lapidus, Muslim Cities, 93.

92. Ergene, Local Court, 151 (quote), 72, 151–52.

93. Ibid., 137, 154–55.

94. Ergene comes to a similar conclusion in ibid.; see chap. 6 in particular.

95. Ibid., 152–53.

96. Rafeq, “Public Morality,” 190.

97. Kırlı, “Struggle over Space,” 77.

98. One document, SMH 94:66:125 6 Sha‘ban 1175 A.H./March 1762, mentions the ta’ifat al-nisa’ al-masturat (virtuous women) in a case in which a man was bothering women passersby. Gabriel Baer also mentions the use of ta’ifat al-nisa’ in Egypt (Egyptian Guilds in Modern Times, 17).

99. Rafeq, “Craft Organization,” 495.

100. Marcus, Middle East, 159. Raymond puts the number of guilds in Aleppo at 130 at the end of the seventeenth century (Great Arab Cities, 19).

101. Information on the use of the title shaykh is discussed in Schilcher, Families in Politics, 109. The document citation is SMH 4:144:717 28 Rabi‘ al-Thani 1052 A.H./July 1642.

102. Amnon Cohen also notes that there were no prostitute guilds in Jerusalem either, attributing it to the holy nature of the city (The Guilds of Ottoman Jerusalem, 185).

103. G. Baer, Egyptian Guilds, 35.

104. Ibid., 35–37. See also Judith Tucker, Women in Nineteenth-Century Egypt, 150–51, on prostitution in Egypt during the nineteenth century.

105. Fahmy, “Prostitution in Egypt,” 78.

106. G. Baer, Egyptian Guilds, 38–39.

107. Marcus, Middle East, 177.

108. G. Baer, Egyptian Guilds, 11.

109. Marcus, Middle East, 173; Heyd, Old Ottoman Criminal Law, 231, 233; Marcus, Middle East, 173. See also Bodman, Political Factions, 25. Jennings makes the same observation for seventeenth-century Ottoman Kayseri (“Kadi, Court, and Legal Procedure,” 155).

110. Cohen, Guilds of Ottoman Jerusalem, 190.

111. SMH 27:383:1856 14 Jumada al-Thani 1072 A.H./February 1662; Cohen, Guilds of Ottoman Jerusalem, 190.

112. Marcus, Middle East, 173–74; SMH 113:226:558 3 Jumada al-Ula 1190 A.H./June 1776; SMH 130:83:222 3 Sha‘ban 1200 A.H./June 1786.

113. Rafeq, “Craft Organization,” 496.

114. SMH 34:180:887 3 Rabi‘ al-Awwal 1090 A.H./April 1679. This record was numbered incorrectly as no. 887 in the original sijill.

115. Ibid., “Craft Organization,” 508. For discussion of the futuwwa and the mystic ceremonies of initiation, see André Raymond, Artisans et commerçants au Caire au XVIIIe siècle, 2:506, 529–30.

116. Raymond, Artisans et commerçants, 2:506, 523–24; SMH 85:185:527 6 Jumada al-Akhir 1168 A.H./March 1755; Masters, Origins of Western Dominance, 84–85.

117. SMH 55:344:1138 18 Dhu’l Hijja 1148 A.H./April 1736; SMH 27:432:2180 23 Dhu’l Hijja 1072 A.H./August 1662.

4. PROSTITUTES, SOLDIERS, AND THE PEOPLE: MONITORING MORALITY THROUGH CUSTOMARY LAW

1. Some of the material from this chapter has been published in article form in “Sinful Professions: Illegal Occupations of Women in Ottoman Aleppo, Syria.”

2. Court procedure and the various ranks of scribe, such as chief scribe (başkatib) as well as katib, zabt katibi, and mukayyid, are illuminated in Agmon, Family and Court, chap. 3 more generally and p. 71 specifically for scribe rankings.

3. Foucault, “Truth and Juridical Forms,” 2; Kathleen M. Brown, Good Wives, Nasty Wenches, and Anxious Patriarchs: Gender, Race, and Power in Colonial Virginia, 97, 102–3.

4. Abdul Karim Rafeq, “New Light on the 1860 Riots in Ottoman Damascus,” 415.

5. Examples of this language can be seen in the primary source documents located in appendix 1. Rafeq lists a number of euphemisms used in the shari‘a courts of Damascus in “Public Morality,” 180–83. Fahmy notes that prostitutes in Egypt were often referred to as ashrar, or “evil people” (“Prostitution in Egypt,” 90).

6. SMH 55:272:733 24 Sha‘ban 1148 A.H./January 1736.

7. Rafeq, “Public Morality,” 182. “Gathering strange men and women in their home” is a common quote from the court records that will be repeated often in this chapter. The term ajanab is tricky and needs to be read in context. Reading it with modern sensibilities would create an interpretation that all of these crimes were committed by foreigners. However, it is easy to detect foreignborn individuals at court, as their names are often furnished with a nisba, which indicates the town of origin.

8. Peters, Crime and Punishment, 13 (quote), 15, 16.

9. Ergene, Local Court, 159–60. This exact phrasing was not found in the breaches of public morality found in the Aleppo record. Instead, variations on this phrase, such as “spread harm [yas‘a fi adrar]” and “spreading evil through their crimes and fines [yas‘a fi tajrimuhum wa taghrimuhum],” indicating fear of possible fining, were used. See examples of these phrases in SMH 64:241:674 13 Dhu’l Hijja 1157 A.H./January 1745; SMH 130:83:222 3 Sha‘ban 1200 A.H./May 1786; SMH 85:103:283 7 Dhu’l Hijja 1176 A.H./June 1763; SMH 64:198:566 23 Ramadan 1154 A.H./December 1741; and SMH 113:89:208 18 Rajab 1189 A.H./October 1775.

10. Heyd, Old Ottoman Criminal Law, 196; Ergene, Local Court, 159.

11. Peters, Crime and Punishment, 16.

12. The three cases in question are SMH 55:115:363 25 Dhu’l-Qa‘da 1147 A.H./April 1735; SMH 45:8:19 16 Jumada al-Akhir 1130 A.H./May 1718; and SMH 55:53:175 6 Jumada al-Akhir 1147 A.H./November 1734. Rafeq, “Public Morality,” 187.

13. Fahmy notes a similar phenomenon in nineteenth-century Cairo (“Prostitution in Egypt,” 83).

14. The two accounts are found in Bouhdiba, Sexuality in Islam, 188.

15. Mernissi, Veil and the Male Elite, 182–83.

16. Examples of this description can be found in al-Budayri al-Hallaq, Hawadith dimashq al-yawmiyya, 1154–1176 A.H./1741–1763, 127; SMH 85:293:813 16 Shawwal 1168 A.H./July 1755; and SMH 94:123:269 4 Dhu’l-Qa‘da 1175 A.H./May 1762, fully translated in this chapter.

17. Rudi Matthee, “Prostitutes, Courtesans, and Dancing Girls: Women Entertainers in Safavid Iran,” 129.

18. Bouhdiba, Sexuality in Islam, 192.

19. Matthee, “Prostitutes, Courtesans, and Dancing Girls,” 133.

20. Bouhdiba, Sexuality in Islam, 189.

21. Shirley Guthrie, Arab Women in the Middle Ages: Private Lives and Public Roles, 99.

22. G. Baer, Egyptian Guilds, 35.

23. Zarinebaf, “Regulating Prostitution,” part of her forthcoming book, “Mediterranean’s Metropolis.”

24. Tucker, Women in Nineteenth-Century Egypt, 151–52.

25. Support for this argument can be found in neighborhood policing for similar crimes, such as illegal distillation of liquor and distribution. It was not illegal to produce and sell alcohol as a Christian or Jew, yet there is evidence that it was illegal to do so without being subjected to regulation and taxation, most likely through the guild structure. See SMH 4:130:678 Jumada al-Ula 1052 A.H./July 1642; SMH 113:1:3 23 Dhu’l Hijja 1189 A.H./February 1776; and SMH 113:146:355 20 Safar 1190 A.H./April 1776.

26. Fahmy describes this phenomenon in his article “Prostitution in Egypt.”

27. Bouhdiba, Sexuality in Islam, 191.

28. The work of al-Budayri was the subject of a dissertation written by Dana Sajdi, “Peripheral Visions: The Worlds and Worldviews of Commoner Chroniclers in the Eighteenth-Century Ottoman Levant.” Sajdi examines the original manuscript located in the Chester Beatty library in Dublin, Ireland, that is the basis of a published rendition compiled by a nineteenth-century scholar, Muhammad Sa‘id al-Qasimi, and used by many scholars of Damascus. Importantly, she notes that the nisba al-Budayri is inaccurate, as the original manuscript refers to him as al-Budayr. The dissertation explores several chronicles written by commoners, including ones by Muhammad al-Makki, Muhammad Ibn Kannan, Hasan Agha al-‘Abd, Haydar Rida al-Rukayni, Ibrahim al-Danafi, and Mikha’il Burayk.

29. Sajdi, “Peripheral Visions,” 75.

30. Ibid., 164. Also related in James Grehan, “The Mysterious Power of Words: Language, Law, and Culture in Ottoman Damascus (17th–18th Centuries),” 1001.

31. Dana Sajdi, “A Room of His Own: The ‘History’ of the Barber of Damascus (Fl. 1762),” 28.

32. Sajdi, “Peripheral Visions,” 163–64; Sajdi, “Room of His Own,” 26, 29.

33. Rafeq, “Public Morality,” 183.

34. Guthrie, Arab Women, 200.

35. Matthee, “Prostitutes, Courtesans, and Dancing Girls,” 126; Raymond, Great Arab Cities, 46. Bruce Masters documents the number of caravansaries in the city as fifty-three, slightly lower than Raymond’s assessment (“Aleppo: The Ottoman Empire’s Caravan City,” 26).

36. Rafeq, “Public Morality,” 190.

37. Sajdi, “Room of His Own,” 28.

38. This implication of the troops is illustrated in cases from chapter 4 as well as cases where levend openly associated with prostitutes. See SMH 55:107:340 26 Dhu’l-Qa‘da 1147 A.H./April 1735; SMH 55:284:871 29 Ramadan 1148 A.H./February 1736; SMH 21:174:420 3 Ramadan 1049 A.H./December 1639; and SMH 21:173:419 2 Ramadan 1049 A.H./December 1639.

39. The Janissaries’ struggle for power against the ashraf in eighteenth-century Aleppo is documented in Herbert Bodman’s seminal study on the subject, Political Factions, esp. chap. 5. Bodman also draws connections between political corruption and moral disorder.

40. A vivid description of the devşirme system and its educational program is related in Barnette Miller, The Palace School of Muhammad the Conqueror.

41. V. L. Ménage, “Devshirme.”

42. Colin Imber, The Ottoman Empire, 1300–1650, 134–40.

43. Schilcher, Families in Politics, 111.

44. Rafeq, Province of Damascus, 37; Douwes, Ottomans in Syria, 112; Rafeq, Province of Damascus, 37.

45. Constantine François Volney, Travels Through Egypt and Syria in the Years 1783, 1784, and 1785, 144, 143.

46. Ibid., 409. Lawend is the Arabic pronunciation of the Turkish term levend.

47. This story can be found in Abdul-Karim Rafeq, “Local Forces in Syria,” 292.

48. SMH 45:134:319 7 Dhu’l-Qa‘da 1030 A.H./September 1621.

49. Singer, Palestinian Peasants and Ottoman Officials, 126; Ergene, Local Court.

50. Cases of rape involving levend are discussed along with other rape cases in chapter 6.

51. SMH 55:107:340 26 Dhu’l-Qa‘da 1147 A.H./April 1736.

52. Bodman, Political Factions, 104.

53. SMH 55:284:861 29 Ramadan 1148 A.H./February 1736.

54. Jennings, “Judicial Registers,” 159, 146 (quote).

55. See differing interpretations in Sajdi, “Peripheral Visions,” 163; and Rafeq, “Public Morality,” 183.

56. Rafeq, “Local Forces,” 305–6.

57. Matthee, “Prostitutes, Courtesans, and Dancing Girls,” 131 (quote), 129.

58. I only found one suicide in the Aleppo sijills used in this study (SMH 4:74:360 28 Ramadan 1090 A.H./November 1679).

59. Al-Budayri, Hawdith dimashq, 127 (my translation). This case is also cited in Rafeq, “Public Morality,” 183.

60. Rafeq, “Public Morality,” 189, 183; Tucker, Women in Nineteenth-Century Egypt, 151–52; Fahmy, “Prostitution in Egypt,” 83.

61. See SMH 149:28:70 7 Dhu’l-Qa‘da 1215 A.H./1801; SMH 261:3:5 12 Jumada al-Akhir 1267 A.H./April 1851; SMH 232:470 28 Muharram 1253 A.H./May 1837; SMH 261:242:452 4 Rabi‘ al-Awwal 1268 A.H./December 1851; and SMH 296:209:274 11 Jumada al-Awwal 1283 A.H./September 1866.

62. SMH 28:498:1708 14 Safar 1073 A.H./September 1662; SMH 94:82:171 3 Ramadan 1175 A.H./March 1762; SMH 113:92:242 30 Sha‘ban 1189 A.H./October 1775; SMH 232:53:126 12 Dhu’l-Qa‘da 1252 A.H./February 1837.

63. The registering of foreign prostitutes is particularly evident in nineteenth-century cases where the court registers include information on place of origin. See appendix 2.

64. Rafeq, “Public Morality,” 182.

65. This information is based on the study of Marcus of real estate values in Aleppo during the eighteenth century (Middle East, 318).

66. Bodman, Political Factions, 63.

67. Raymond, Urban Networks and Popular Movements, 252, 255.

68. Ibid., 256; Bodman, Political Factions, 63.

69. Matthee, “Prostitutes, Courtesans, and Dancing Girls,” 126; Tucker, Women in Nineteenth-Century Egypt, 151–52; Fahmy, “Prostitution in Egypt,” 83.

70. To be specific, the last criminal prostitution case I located was in 1802 (see appendix 2). I am still perplexed by the lack of criminal prostitution cases in the nineteenth century as opposed to the peak in the eighteenth century. My only guess is that there may have been a shift in jurisdiction whereby these cases were adjudicated elsewhere, because prostitution, as evidenced by these testimonials, was still present in the city.

71. SMH 94:82:171 3 Ramadan 1175 A.H/March 1762.

72. Peirce, Morality Tales, 356; Peters, Crime and Punishment, 27; Peirce, Morality Tales, 355.

73. SMH 94:81:167 4 Ramadan 1175 A.H./March 1664; SMH 130:122:321 4 Dhu’l-Qa‘da 1200 A.H./August 1786; SMH 261:3:5 12 Jumada al-Akhir 1267 A.H./April 1851.

74. Behar, Neighborhood in Ottoman Istanbul, 164–65.

75. The lack of privacy afforded residents and the importance of reputation have been topics of several studies, including two works by Abraham Marcus, “Privacy in Eighteenth-Century Aleppo: The Limits of Cultural Ideals” and Middle East. Peirce addresses the connection between community and reputation in her discussion of töhmet, the negative mark given an individual that damaged his or her reputation and made his or her word unacceptable in the court of law. The collective memory of the community was used to determine who had a tarnished reputation through töhmet and how many offenses (Morality Tales, 113).

76. SMH 28:181:721 14 Rabi‘ al-Thani 1071 A.H./December 1660.

77. SMH 113:128:304 2 Muharram 1196 A.H./December 1781.

78. In this study I use the term family to means people who are immediate family members, meaning related within degrees by which they are not marriageable. Meriwether has called it an elementary or conjugal family consisting of a husband, wife or wives, and children as opposed to a larger lineal family. In some cases in-laws are included in the elementary family household. Moreover, the context of these court cases indicates that these families may have lived in the same households. See Meriwether’s discussion defining family in eighteenth- and nineteenth-century Aleppo (Kin Who Count, 16–18).

79. SMH 36:24:67 1 Jumada al-Ula 1098 A.H./March 1687.

80. SMH 45:224:555 29 Safar 1031 A.H./January 1622; SMH 36:232:657 6 Safar 1099 A.H./December 1687.

81. SMH 64:172:490 6 Rajab 1154 A.H./September 1741.

82. SMH 55:314:947 14 Dhu’l Qa‘da 1148 A.H./March 1736.

83. Rafeq, “Public Morality,” 187; Marcus, Middle East, 197.

84. Alain Corbin, Women for Hire: Prostitution and Sexuality in France after 1850, 69.

85. Raymond, Great Arab Cities, 69, 81–87. This type of housing is also discussed in Abdel Nour, Introduction à l’histoire urbaine, 110, 130–35.

86. SMH 36:182:517 18 Dhu’l Hijja 1098 A.H./October 1687; SMH 113:305:768 16 Muharram 1191 A.H./February 1777.

87. Ergene, Local Court, 152.

88. Charles Wilkins and I shared a number of cases during the course of our research from 1999 to 2001 in the Syrian archives. I thank Charles for sharing these two documents with me. They are SMH 34:106:473 (misnumbered in the sijill), 23 Shawwal 1087 A.H./December 1676 and SMH 34:108:480 (misnumbered in the sijill) 23 Shawwal 1087 A.H./December 1676.

89. SMH 94:123:269 4 Dhu’l-Qa‘da 1175 A.H./May 1762. The power of the hakim al-‘urf to make legal judgments has been documented in part by Marcus, Middle East, 105; and Gerber, Islamic Law and Culture, 57–58.

90. The nickname “Abi Ras,” meaning “father of the head,” may be indicative of a physical peculiarity that inspired the nickname, possibly a larger-sized head.

91. Ergene, Local Court, 107.

92. SMH 45:8:19 16 Jumada al-Akhir 1130 A.H./May 1718; SMH 45:53:123 10 Sha‘ban 1130 A.H./July 1718; SMH 94:139:309 4 Muharram 1176 A.H./July 1762.

93. SMH 55:137:434 8 Muharram 1148 A.H./May 1735; SMH 85:146:400 23 Rabi‘ al-Awwal 1187 A.H./June 1773.

94. SMH 113:181:443 19 Rabi‘ al-Thani 1190 A.H./June 1776; Marcus, Middle East, 117.

95. Marcus, Middle East, 328.

96. M. Baer, “Islamic Conversion Narratives,” 435–36; von Schlegell, “Sufism in the Ottoman Arab World,” 82. For a more thorough discussion of the movement, see Madeline Zilfi, “The Kadizadelis: Discordant Revivalism in Seventeenth-Century Istanbul.”

97. M. Baer, “Islamic Conversion Narratives,” 436. See also Zilfi, “Kadizadelis”; and von Schlegell, “Sufism in the Ottoman Arab World” on the Kadızâdeli movement (for context).

98. Imber, “Zina in Ottoman Law,” 182–83; Haim Gerber, “Position of Women in an Ottoman City, Bursa, 1600–1700,” 239; Heyd, Old Ottoman Criminal Law, 273. A similar description is found in Alexander Russell’s account in Natural History of Aleppo, 1:334.

99. Gerber, “Position of Women,” 239; Russell, Natural History of Aleppo, 1:334.

100. Seng, “Standing at the Gates of Justice,” 199; Ze’evi, Ottoman Century, 179.

101. Ronald C. Jennings, “Women in Early 17th Century Ottoman Judicial Records: The Shari‘a Court of Anatolian,” 96.

102. Marcus argues that when women were “expelled” or “ordered to leave” by the court, they often moved to another quarter with the approval of their new neighbors. See the case of Fatima bint ‘Abdallah, who was most likely a manumitted slave (Middle East, 118). See also SMH 2:159:673 20 Rabi‘ al-Thani 1119 A.H./July 1707; SMH 45:170:415 17 Dhu’l Hijja 1130 A.H./November 1718; and SMH 28:216:731 17 Rabi‘ al-Thani 1071 A.H./December 1660.

103. Al-Marginani, Hedaya, 181; SMH 2:159:273 11 Rabi‘ al-Thani 1119 A.H./July 1707; SMH 45:170:415 17 Dhu’l Hijja 1130 A.H./November 1718; SMH 28:216:731 17 Rabi‘ al-Thani 1071 A.H./December 1660.

104. Russell, Natural History of Aleppo, 1:335.

105. Peirce, Morality Tales, 332.

106. Here I have adopted the explanation of Gerber as related in his article “Rigidity Versus Openness,” 166.

107. Schacht, Introduction to Islamic Law, 60–61. Some of these variations among schools of law are discussed in ibid., 60–63.

108. Ibid., 204.

109. Gerber dedicates an article to discussing the way in which Mufti Khayr ad-Din ibn Ahmad al-Ramli referenced istihsan in his fatwas (“Rigidity Versus Openness”).

110. Rosen, Justice of Islam, 95–96, 97.

111. Masters, Origins of Western Dominance, 50.

112. Felicitas Opwis, “Maslaha in Contemporary Islamic Legal Theory,” 188.

113. For more information on the Ash‘ari and Mu‘tazila debate, see W. Montgomery Watt, “Al-Ash‘ari”; and D. Gimaret, “Mu‘tazila.”

114. Opwis, “Maslaha in Contemporary Theory,” 190 (quote), 191.

115. Ibid., 194.

116. Rosen, Anthropology of Justice, 48.

117. Lawrence Rosen, “Equity and Discretion in a Modern Islamic Legal System,” 234.

118. Ahmad Zaki Yamani, Islamic Law and Contemporary Issues, 11; Rosen, “Equity and Discretion,” 235.

119. Rafeq, “Public Morality,” 306.

5. IN HARM’S WAY: DOMESTIC VIOLENCE AND RAPE IN THE SHARI‘A COURTS OF ALEPPO

1. Two recent nonacademic yet mainstream and popular publications that continue to perpetuate notions that Islamic law endorses violence against women can be found in Irshad Manji, The Trouble with Islam: A Muslim’s Call for Reform in Her Faith; and Ayaan Hirsi ‘Ali, Infidel.

2. Hina Jilani, “Whose Laws? Human Rights and Violence Against Women in Pakistan,” 73.

3. John Esposito, Women in Muslim Family Law; 26; Tucker, In the House of the Law, 63.

4. Isma‘il ibn ‘Umar Ibn Kathir, Mukhtasir tafsir ibn Kathir, 1:386; Abu Ja‘far Muhammad ibn Jarir al-Tabari, Tafsir al-Tabari, 4:71.

5. Sonbol, “Law and Gender Violence,” 281.

6. Tucker, In the House of the Law, 63; Sonbol, “Law and Gender Violence”; and Dalenda Largueche, “Confined, Battered, and Repudiated Women in Tunis since the Eighteenth Century,” both latter articles found in Women, the Family, and Divorce Laws, edited by Sonbol. Sonbol also has an article exclusively dedicated to the issue of ta‘a and the development of bayt al-ta‘a as an institution (“Ta‘a and Modern Legal Reform”).

7. Tucker, In the House of the Law, 65.

8. See Esposito, Women in Muslim Family Law, 32.

9. See Colin Imber, “Why You Should Poison Your Husband: A Note on Liability in Hanafi Law in the Ottoman Period.”

10. Davis, Fiction in the Archives, 78–79.

11. Tucker, In the House of the Law, 66.

12. Duzdağ, Şeyhülislam Ebussuud Efendi, 54; Imber, Ebu’s-su‘ud, 216.

13. Muhammad Ibn ‘Abidin, Radd al-muhtar ‘ala al-durr al-mukhtar, 3:190.

14. SMH 36:78:214 16 Rajab 1098 A.H./May 1687.

15. SMH 313:312:323 22 Shawwal 1301 A.H./August 1884.

16. SMH 50:171:465 19 Jumada al-Ula 1136 A.H./February 1724.

17. Imber, “Zina in Ottoman Law,” 186–87.

18. Quraishi, “Her Honor,” 129.

19. SMH 45:145:372 27 Dhu’l Hijja 1030 A.H./November 1621.

20. Peters, Crime and Punishment, 62.

21. This terminology is close to the Turkish rendering cebran zina that Peirce found in the ‘Ayntab court (Morality Tales, 206).

22. Also related in Peirce, Morality Tales, 352.

23. Sonbol, “Law and Gender Violence,” 287.

24. Al-Zuhayli, Al-fiqh al-islami wa ‘adillatuhu, 7:5351.

25. Ahmad ibn Muhammad ibn Qudama, Al-Mughni, 12:347–48; al-Zuhayli, Al-fiqh al-islami wa ‘adillatuhu, 6:4448; Muhammad ibn Hamza al-‘Ala’i, Naqd al-fatawa al-imam al-‘alama, 324, Manuscript Collection, Asad Library, Damascus, Syria.

26. Muhammad ibn Muhammad al-Bazzazi, Al-Fatawa al-Bazzaziya, 352; Khayr ad-Din ibn Ahmad al-Ramli, Al-Fatawa al-khayriya li naf‘ al-birriya, 80.

27. Al-Ramli, Al-Fatawa, 80.

28. Al-Bukhari, Sahih al-Bukhari, 9:67. Also related in Ibn Qudama, Al-Mughni, 12:347.

29. Peirce, Morality Tales, 132–33 (including quote from al-Marginani). See also Heyd, Old Ottoman Criminal Law, 99.

30. Peters, Crime and Punishment, 62; Peirce, Morality Tales, 133.

31. SMH 36:84:230 28 Rajab 1098 A.H./May 1687.

32. Restrictions placed on oath taking are explained by Peters in Crime and Punishment, 13.

33. Grehan, “Mysterious Power of Words,” 991 (quote), 1003.

34. SMH 45:273:682 6 Jumada al-Ula 1131 A.H./March 1719; Sonbol, “Law and Gender Violence,” 287.

35. SMH 45:65:158 26 Sha‘ban 1030 A.H./July 1621.

36. This case is related in Ergene, Local Court, 153.

37. Boğaç Ergene presents a rape case from the court of Çankırı in which the victim, a woman named Emine, reported her rape after six months had passed (ibid.).

38. Amira El-Azhary Sonbol, “Adoption in Islamic Society: A Historical Survey,” 60.

39. Al-Asqalani, Fath al-bari sharh sahih al-Bukhari, 12:153. An article has been published on the subject: Uri Rubin, “‘Al-Walad Li-l-Firash’ on the Islamic Campaign Against ‘Zina,’” 5.

40. Tucker, In the House of the Law, 173.

41. See Muhammad Ibn ‘Abidin, Al-‘Uqud al-Durriyya fi Tanqih al-Fatawa al-Hamdiyya, 1:75.

42. All references in the paragraph are taken from Tucker, In the House of the Law, 173–74.

43. Peirce, Morality Tales, 192.

44. This Egyptian case is mentioned in Sonbol, “Law and Gender Violence,” 286.

45. Russell, Natural History of Aleppo, 1:55–56.

46. Peirce, Morality Tales, 362.

47. Sonbol, “Law and Gender Violence,” 288.

48. SMH 36:130:359 5 Shawwal 1098 A.H./August 1687.

49. SMH 45:203:501 18 Safar 1131 A.H./January 1719.

50. Peirce, Morality Tales, 365.

51. Ibid., 206.

CONCLUSION

1. Mar is the Greek word for “saint.”

2. This incident is referenced in Tariq Ramadan’s op-ed piece “Too Scary for the Classroom?” New York Times, September 1, 2004.

3. Tariq Ramadan, “An International Call for Moratorium on Corporal Punishment, Stoning, and the Death Penalty in the Islamic World,” March 30, 2005, http://www.tariqramadan.com.