The Muftīs’ Remedies Against Coerced Divorce Oaths by Executive Officers in Ottoman Society (16th-18th Centuries)
Muharrem MidilliThis article discusses the legal formulas devised by muftīs against divorce oaths forced by executive officers (ehl-i örf) in Ottoman society. Hanafi jurists believe that divorce oaths made under duress are valid. The jurists have developed legal remedies that can be used against the possibility of abuse of this opinion by those in positions of power. The problems arising from the abuse of divorce oaths and their remedies were reflected in fiqh literature, especially fatwā collections where the Hanafi madhhab held sway. Fatwās issued by muftīs in Anatolia and Rumelia, regions where Hanafi madhhab dominated during the 16th–18th centuries, indicate that divorce oaths were used pervasively by executive authorities as instruments of compliance. These fatwās describe how executive officers have transformed divorce oaths into tools of coercion, exploiting them for various purposes, including upholding public order, apprehending and interrogating suspects, ensuring justice, tax collection, debt settlement, and prevention of illicit activities. They also abused this mechanism for illicit gains, preventing legal action against them, and acquiring illicit property or money. In response, Ottoman muftīs proposed remedies rooted in legal tradition to safeguard individuals from executive coercion. The most remarkable of these remedies are clandestinely inserting the phrase “in shā’a Allah” (if Allah wishes) into divorce oaths, file a lawsuit through attorney, pronouncing divorce with the intent of false notification/admission, intending another meaning of divorce, and constraining general expressions with personal intent. These remedies, which balanced the madhhab’s opinion that the divorce oath under duress is valid, served to protect individuals, family and property rights against the executive officers. The article, a study of legal history, provides evidence from fatwā collections to support these findings.
Osmanlı Toplumunda Ehl-i Örfün İkrah Altında Ettirdiği Boşama Yeminlerine Karşı Müftülerin Formülleri (16.-18. Yüzyıllar)
Muharrem MidilliBu makale Osmanlı toplumunda ehl-i örfün ikrah altında ettirdiği boşama yeminlerine karşı müftülerin önerdiği hukuki formülleri ele almaktadır. Hanefî fakihler ikrah altında ettirilen boşama yeminlerinin geçerli olduğu görüşündedir. Fakihler bu görüşün güç sahipleri tarafından suistimal edilmesi riskine karşı birtakım hukuki formüller geliştirmiştir. Hanefî mezhebinin uygulandığı yerlerde boşama yemininin suistimal edilmesinden kaynaklanan sorunlar ve önerilen formüller fetva mecmualarına yansımıştır. 16.-18. yüzyıllar arasında mezhebin sıkı bir şekilde uygulandığı Anadolu ve Rumeli uygun bir gözlem sahası teşkil etmektedir. Bu bölgelerde görev yapan müftülerin gerçek meselelere verdiği çok sayıda fetva gözlem için zengin bir malzeme sunmaktadır. Fetva mecmualarına yansıyan meseleler, ehl-i örfün boşama yeminini pratik bir itaat ettirme aracına dönüştürdüğünü göstermektedir. Ehl-i örf genellikle asayişin sağlanması, zanlıların sorgulanması, bulunması, adalete teslim edilmesi, vergilerin tahsil edilmesi, borçların ödenmesi ve haramın önlenmesi gibi meşru konular ya da haksız mal veya para elde etme ve haksızlıkların dâva edilmesini önleme gibi gayrimeşru konular hakkında boşama yeminine başvurmuş görünmektedir. Osmanlı müftüleri kişileri ehl-i örfe karşı korumak için hukuk geleneğinde üretilmiş birtakım formüller önermişlerdir. Bu formüllerin en dikkat çekici olanları; boşama yeminine gizlice inşallah lafzı eklemek, vekâlet, boşama lafzını yalan haber/ikrar niyetiyle söylemek, boşama lafzının farklı bir manasına niyet etmek ve umum ifade eden lafızları niyetle tahsis etmektir. Mezhebin ikrah altında boşama yeminini geçerli sayan görüşünü dengeleyen bu formüller ehl-i örfe karşı kişileri, aileyi ve mülkiyet hakkını koruma işlevi görmüştür. Bir hukuk tarihi çalışması olan makale bütün bu tespitlere dair fetva mecmualarından kanıtlar sunmaktadır.
This article examines the practice of coerced divorce oaths by the executive officers (ehl-i örf) in Ottoman society, alongside the legal remedies recommended by muftīs to nullify such oaths. Within the Hanafi tradition, it is widely acknowledged that divorce oaths retain validity even when made under duress. Recognizing the potential for abuse by those in positions of authority, jurists have devised remedies as safeguards against this exploitation, particularly by political figures. Anatolia and Rumelia, where strict adherence to Hanafi madhhab became prevalent in the latter half of the 16th century, serve as prime areas for observation. The thousands of fatwās issued by muftīs who served in these regions between the 16th and 18th centuries provide a rich source of data for analysis. These fatwās describe how executive officers transformed divorce oaths into tools of coercion, leveraging them for various purposes, both legitimate and illegitimate. Instances include extorting money or property, evading legal repercussions, and manipulating interpersonal debt relations. Moreover, divorce oaths were utilized to control public discourse, suppress dissent, enforce compliance with government mandates, and coerce payments from taxpayers. They compel individuals to swear divorce oaths to ascertain the presence of political agitators, subversives, or bandits in the neighborhoods, villages or towns, or to galvanize public sentiment against banditry. Additionally, they demand that individuals take such oaths to ensure their presence at specific locations or meetings. The objective is not always to fulfill a specific task or obligation through divorce oaths. At times, executive officers deliberately engineer circumstances conducive to the violation of coerced divorce oaths, with the aim of precipitating divorces. It is evident that executive officers employ divorce oaths for both legitimate and illegitimate purposes. Despite having coercive means at their disposal, their inclination to exploit the religious significance of divorce oaths may stem from their perceived weakening authority. The issues reflected in the fatwā collections indicate that many individuals subjected to divorce oaths under executive duress sought assistance Ottoman muftīs. They sought guidance on effective remedies or sought validation of the legal efficacy of the remedies they employed.
Ottoman muftīs issued fatwās affirming the validity of divorce oaths imposed by executive officers under duress, even in cases where they clear victimization occurred. However, procedural constraints within the fatwā process and directives from the central government limited their ability to issue fatwās aligned with alternative madhhab opinions. Nevertheless, they proposed formulas intended as tricks or remedies to shield individuals from executive coercion. According to these formulas, if a person who is coerced into swearing a divorce appends “in shā’a Allah” (if Allah wishes) immediately after the divorce pronouncement, audibly enough for himself, the divorce will be nullified, and the marriage remains intact. Similarly, a person taking a divorce oath to avoid litigation due to injustices inflicted by executive officers does not breach his oath if he grants power of attorney for the case or presents his situation to the judge. In a case where an individual whom the executive officers made to swear three divorces under duress, divorces his wife and violates his oath after the waiting period is over, he can remarry his wife. Furthermore, if the individual’s intent behind using the word “divorce” is to provide false information or confession, or if he uses ambiguous language intending a meaning other than divorce, the divorce will not be granted. Again, if a husband limits a general expression in his oath with his personal intent, the divorce will not take place. Moreover, if a person swears a divorce to compel or refrain from a specific action under duress, the divorce is postponed until he either fulfills or abandons the action. Although it is understood that some individuals in Ottoman society were aware of and utilized these strategies, measuring their effectiveness against executive abuses remains challenging. Employing these strategies requires a deep understanding of legal intricacies and courage to confront authority. Importantly, most strategies are not considered by the court if no witnesses are present. Nevertheless, numerous fatwās in collections indicate that the formulas were widely used and effective in Ottoman society. The formulas served as a counterbalance to the established jurisprudence of the madhhab, which could cause grievance, such as the opinion that considers the divorce oath under duress as valid. They prevented many marriages from dissolving untimely and unnecessary, reduced the practice of tahleel marriages, and served to protect the right to property. This article, a study of legal history, provides evidence from fatwā collections to support these findings.
