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Taking One's Trouble before an Outside Judge. Dhimmi Families and Islamic Law in 17th Century Istanbul
Abstract
Parts of the doctrine as well as certain aspects in the practice of Islamic Family Law in various regions and time periods have faced harsh criticism by many scholars as well as female rights activists concerned about social realities in the Middle East for their patriarchal and inegalitarian nature. Among the examples that are frequently adduced in the literature are different rules for the initiation of a divorce and unequal inheritance shares based on the gender of the parties involved. Even though this may have been the case if one looks solely at the doctrinal texts of the Qur'an and hadith literature, recent research on Islamic jurisprudence has found ample evidence that the practice often deviated since "jurists did not speak with one voice" and by doing so have "cleared the way for nuances and caveats we encounter in the courts, and in the juristic literature, where the categories of Woman and Man acquired some elasticity" (Tucker). In my paper I will offer a further element to a more nuanced picture of Islamic Family Law in practice by illustrating that, rather than shunning the Islamic Family Law whenever possible by making use of their legal autonomy under the stipulations of the Dhimma, non-Muslims often had good reasons for voluntarily submitting a legal dispute within the family to Islamic legal institutions. Non-Muslims in 17th century Istanbul had their own legal tribunals operated by the Greek and Armenian patriarchates and by the rabbis of the Jewish community respectively. My study of the sharia court records of two court districts as well as the protocols of the Imperial Council (Divan-i H(mayun) of late 17th century Istanbul, however, shows that Jews and Christians frequently and routinely chose to submit disputes in the realm of Family Law to these Islamic legal institutions rather than to their own independent legal tribunals. It will be argued that rather than considering the norms of Islamic Family Law as a "straightjacket" curtailing individual rights on the basis of gender and faith under all circumstances, the study of cases of dhimmis who were not obliged to use Islamic legal institutions reveals the strong appeal that this set of norms had on non-Muslims of both genders who saw their judicial needs most perfectly met by Islamic Family Law.
Discipline
History
Geographic Area
Anatolia
Sub Area
13th-18th Centuries