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Book Review: Shambayati on Ergene, Local Court, Provincial Society and Justice

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    H-NET BOOK REVIEW Published by H-Gender-MidEast@h-net.msu.edu (March, 2005) Bogac A. Ergene. _Local Court, Provincial Society and Justice in the Ottoman
    Message 1 of 1 , Jun 2, 2005
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      H-NET BOOK REVIEW
      Published by H-Gender-MidEast@... (March, 2005)

      Bogac A. Ergene. _Local Court, Provincial Society and Justice in the
      Ottoman Empire: Legal Practice and Dispute Resolution in Cankiri and
      Kastamonu (1652-1744)_. Studies in Islamic Law and Society Series.
      Leiden: Brill, 2003. x + 236 pp. Bibliography, index. $117.00 (cloth),
      ISBN 90-04-12609-0.

      Reviewed for H-Gender-MidEast by Hootan Shambayati,
      Department of Political Science, Bilkent University.

      Maintenance of Social Hierarchy at the Expense of Justice for the
      Individual

      The Middle East Studies Association awarded its 2002 Malcolm Kerr
      Dissertation Prize to the dissertation on which this book is based. Bogac
      Ergene uses Ottoman court records to "challenge the common assumptions in
      the literature that the Ottoman provincial courts and the practice of law
      in the seventeenth- and eighteenth-century Anatolia provided secure
      avenues for the weak to stand against the abuse that they occasionally
      encountered" (p. 6). This task is achieved through a detailed study of
      twenty-five volumes of court records (_sicils_) from the sub-provinces of
      Cankiri and Kastamonu.

      After a brief introductory chapter, where the author states that "it is
      not my intention to disclose the conclusions that will be furnished in
      subsequent chapters" (p. 6), and a second introductory chapter, where the
      general characteristics of the two sub-provinces and the personnel of the
      courts are discussed, the substantive part of the book begins.
      Unfortunately, the failure to highlight the significance of the study's
      findings at the outset makes it difficult for the reader to follow
      Ergene's arguments as he develops them in the subsequent chapters.

      The next three chapters provide a statistical picture of the cases
      included in the court documents. In chapter 3, Ergene classifies the cases
      based on whether they represent the administrative or the judicial
      functions of the courts. The picture that emerges supports the author's
      contention that Ottoman courts played different roles depending on local
      conditions. In Cankiri most of the court's time was occupied with
      administrative matters whereas in Kastamonu judicial services were
      dominant (pp. 42-43). Chapters 4 and 5 look at the social background of
      the litigants and the cost of litigation, respectively. The analysis of
      the court documents shows that the elite were more likely to go to court.
      The reluctance of commoners to go to court appears to have been in part
      due to the high cost of litigation, which often was more than what was
      officially required in the administrative manuals.

      A further contributing factor might have been the perceived bias of the
      courts in favor of the elite. Ergene's findings suggest that when members
      of elite classes found themselves in court against commoners they had good
      reason to expect a favorable outcome (p. 75). Ergene attributes this
      outcome to the influence of the elite over the court (p. 71). There is,
      however, little discussion as to why the courts were susceptible to the
      influence of the elite. Nor is there a discussion of how court decisions
      were enforced. Judges, after all, are themselves likely to be members of
      the elite with interest in preserving the existing social order.
      Furthermore, courts are often dependent on other institutions and
      individuals for the enforcement of their decisions. In other words, one
      can ask whether the perceived bias of the courts in favor of the elite is
      due to the common interest between the court personnel and elite
      litigants, the courts' dependence on the elite for the enforcement of
      their decisions, or the elite's ability to "corrupt" court proceedings?

      Chapters 6, 8, and 9 shift the focus of the study from general trends to
      in-depth studies of individual cases, and look at the strategies used by
      litigants and alternative mechanisms of dispute resolution. The evidence
      presented in these chapters suggests that, despite the findings of the
      previous chapters, the less powerful classes of the society were not
      completely powerless in disputes with the elite. Ergene convincingly
      demonstrates that the lower classes were, at times, able to use a variety
      of strategies such as obtaining legal opinions (_fetvas_) from religious
      authorities, acting as a community, or seeking alternative venues to
      settle their disputes with members of the elite. Unfortunately, in these
      as in the book in general, Ergene does not push his analysis of the data
      far enough and the reader is left wondering what generalizations can be
      made about the circumstances under which a particular strategy might have
      been used or why it might have been effective. Although the dust jacket
      advertises the book as a study of the "functions of Islamic courts,"
      Ergene is more modest, at times perhaps too modest, and often limits his
      conclusions to the two courts that have provided the bulk of the material
      for the study.

      What is also missing from this book is any discussion of what justice
      might have meant in the Ottoman context. As Ergene shows, Ottoman courts
      defended the interest of the upper classes against individual commoners
      but were willing to side with the latter when they acted as a group (p.
      72). This suggests that in the Ottoman context justice required the
      maintenance of the social hierarchy at the expense of justice for the
      individual, as has been suggested by the advocates of the "circle of
      justice" theory. The present study, however, does not concern itself with
      what justice might have meant in the context of seventeenth- and
      eighteenth-century Ottoman society.

      Chapter 7, with the title "Intermission: _Sicil_ as Text," seemingly is
      misplaced and should have come much earlier to both discuss the strengths
      and weaknesses of _sicils_ as historical sources and the context of the
      present study. Also misplaced, as far as this reviewer is concerned, is
      chapter 10 which, under the rubric of "In Place of Conclusion: Models and
      Taxonomies," shifts the discussion to encourage "more studies that pay
      attention to the historical contexts in Ottoman legal history" while
      paying attention to models and taxonomies (p. 207). Ergene's brief
      introduction to the "court model" and the "bargain model" of dispute
      resolution would have been more beneficial if it had appeared earlier in
      the text and would have allowed the reader to evaluate the evidence
      presented more easily. The book ends with a short epilogue summarizing the
      findings of the study and an appendix that asks "where did the court
      clients come from and why" (p. 213)?

      As someone who is not an Ottomanist, but has an interest in the operation
      of courts and the administration of justice, I feel that this book could
      have benefited from a more extensive review of the literature. At several
      points in the book the author claims that his findings challenge the
      standard view of Ottoman courts presented in the literature. However,
      there is no discussion of what this view is or what functions the courts
      were formally expected to perform in the Ottoman administrative system.
      The author claims that there is a consensus among scholars on the
      functions of the Islamic and Ottoman courts (p. 32), but he fails to
      explain the role assigned to the courts in scholarly writings. More
      importantly, the arguments of the book would have been more persuasive if
      there was a discussion of how the Ottomans themselves perceived the
      courts. There is plenty of evidence in this book to suggest that the
      actual operation of the courts diverged significantly from what is
      presented in the official administrative manuals, but without a discussion
      of what was formally expected of the courts it is difficult to determine
      how serious these divergences were and what place the courts occupied in
      the Ottoman political and administrative systems.

      I also should say a few words about the sources and some stylistic
      concerns. The arguments of the book are almost exclusively based on the
      court documents and observations of the Westerners, mainly those of Hans
      Ulrich Krafft, a German merchant who had spent three years in an Ottoman
      prison in Tripoli. As outsiders, Western visitors often noticed practices
      that the local inhabitants took for granted. By the same token, however,
      they might have interpreted events in ways different from the local
      inhabitants. It would have been useful to also provide some evidence from
      local observers.

      My other concern is with the way Ottoman Turkish words such as _kerime_
      and _emine_ are used throughout the text. These, of course, can be proper
      names but they are also adjectives used to refer to women in place of
      their proper names. Unfortunately, the way they are used in the text it is
      not clear when they are proper names and when they are a general adjective
      (examples on pp. 153, 162). Finally, given the large number of Ottoman
      legal terms used in this book, the inclusion of a glossary would have been
      welcome. The points raised above, however, should not discourage those
      interested in the operation of Ottoman courts from consulting this book.
      Bogac Ergene should be congratulated for gathering and analyzing a wealth
      of valuable information.


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