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Between Government and Sacred: The Ottoman Sultanic Waqfs in Ebussuud’s Fatwas
This article investigates development of law of the Ottoman sultanic waqfs founded from the state lands with a particular focus on Ebussuud’s (d. 1574) ideas. It analyzes this particular category of waqf as a distinctive type due to its divergence from the Islamic law and seeks to explore its exceptional position within the Ottoman waqf system. Even though endowments of this kind were a widespread practice among Muslim rulers from at least the twelfth century onwards, they were also subject of debate among the scholars. Some of them considered endowing public property of the sultans invalid on the ground that they contradicted a fundamental condition of waqf law: originating from private property. My paper questions the Ottoman application of this type and it makes the case that the Ottomans built up a distinctive institution under the rubric of waqf, in some cases benefitting from its legal features while in other cases diverging from them entirely. Based on Ebusuud’s fatwas, I analyze some of the more distinguishing features of the Ottoman waqf system, including their process of foundation, the management of changes in revenues or expense items, and the execution of annulments. As a result, I will argue that Ottoman sultanic waqfs appear to be more than simply religious foundations, and might more accurately be characterized as government institutions formulized within waqf law. To illustrate the double sided nature of the sultanic waqfs, I will rely on one of Micheal Mann’s categorizations of power: authoritative vs. diffused power. This article sets out to show that Ebusuud seeks to depict an institution dependent on the will of sultan. In Mann’s terms, Ebusuud aims at strengthening the authoritative power of the sultan or center on sultanic waqfs in particular, and on public property in general. On the other hand, he recognizes that the inherent immunity of waqfs to external intervention due to the Islamic legal principles which constituted a representation of the diffused power provided by the waqf frame. This paper will demonstrate traces of this dichotomy in Ebusuud’s fatwas. On a broader level, the subject helps us to take a closer look at the complex process of development of established legal norms revealing confusions and contradictions. Thereby, I hope to shed some light on the notion of change and adaptability of legal norms.
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