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