of a missing man and the denial of the right of his wife to obtain a divorce in his
absence brought a high degree of uniformity in the interpretation and application
of this rule throughout the Ottoman Empire. However, even if the Ottoman jurists
were not willing to modify their rulings on the wife of a missing man, Ottoman
women did find ways to circumvent it. Thus, in areas where other Sunni madhhab s
co-existed with the officially favored Hanafi madhhab, abandoned Muslim women
often turned to Shafi‘i or Hanbali deputy judges to gain more favorable opinions
regarding their options. Their geographic positioning within the Empire thus
could play a crucial role in circumventing the unfavorable ruling and significantly
influence the lives of “waiting” Muslim wives. In areas where the Hanafi madhhab
predominated, such as Ottoman Bosnia, Muslim women did not have the same
options unless they were aware of the interpretive differences and were resourceful
enough to undertake a possibly lengthy trip, find a non-Hanafi judge, and secure
a more favorable opinion. However, with the exception of one fatwa in which a
Bosnian mufti declared licit the act of switching to the Shafi‘i madhhab and hence
taking advantage of a more sympathetic opinion, no other source from Ottoman
Bosnia indicates that such practices indeed took place.
Notes
1
11 1 žihuseinović 1997–99,
1: 559–62.
2. Travnik became the capital of the Province of Bosnia in the late 1690s.
(Malcolm 1994: 91.)
3. See Bašeskija 1968: 64.
4. See Sarakhsī 1970–79, 11: 40–42; Marghīnānī 2000, 2: 903–904.
5. For a short and useful summary of the legal stipulations regarding a husband’s
duty to provide his wife with alimony, see Linant de Bellefonds 1965: 259–
63.
352
Women in the ottoman Balkans
žiselimović 2001. The late eighteenth-century
Bosnian judge [ / qadi] Abdullah Hurremović, who wrote a detailed list
of the judicial-administrative units [ kaza/ qaza] in the European areas of the
Ottoman Empire (Rumeli
bout “twenty-six overnight stays” along the way,
probably a somewhat exaggerated estimate. (Šabanović 1943: 349.)
7. For a useful description of inns in the Ottoman Balkans, see Jezernik 2004.
The most detailed description of the different kinds of inns in Ottoman Bosnia
can be found in Kreševljaković 1957.
, 99.
9. Smith 1991: 87.
10. Although
Islamic jurists looked unfavorably upon divorce, it was nonetheless
permitted and sanctioned by Islamic law. For an overview of the regulations
regarding different types of divorce in the various Sunni legal schools, see
Linant de Bellefonds 1965: 305–471. A detailed analysis of the regulations
governing the divorce procedure in the Ottoman Empire during the eighteenth
century according to the dominant Hanafi school of law can be found in
Tucker 1998: 78–113.
11. Bašeskija 1968: 307, 309.
12. Because
of its geographic positioning on the border of the Ottoman Empire,
Bosnia frequently supplied troops for the Sultan’s army, in particular during
its frequent wars with Austria. For example, Bašeskija writes that about 3,000
men left Sarajevo in May 1788 and joined the rest of the Ottoman troops
engaged in battling the Austrians. (Bašeskija 1968: 266–67.) Furthermore,
Bosnians did not only participate in the wars that the Ottomans waged on their
doorstep. For instance, Enes Pelidija states that over 5,000 Bosnian Muslim
men were recruited and sent to participate in the Ottoman-Persian war in
1727. According to Pelidija, only about 500 of them returned home in 1728.
(Pelidija 1991: 339–41.)
13. For
a substantive analysis of the destruction of this and other libraries in
Bosnia-Herzegovina during the 1992–96 period, see Riedlmayer 1994, 1996.
14. Cf. Dobrača et al. 1996–2004.
15. For
a succinct but useful account of the history of the Gazi Husrev Beg Library,
see Mujezinović and Traljić 1982.
16. Some
important scholarly texts that deal with the culture of books in Ottoman
Bosnia are Hadžiosmanović 1997 and Ždralović 1988.
17. After
the late fourteenth century, the Hanafi school of Islamic law was favored
by the Ottoman sultans, who made it the official legal school of the Empire. By
the mid-sixteenth century, the Hanafi school had spread—with the Ottoman
conquests—to the Balkan peninsula and Hungary. (Cf. Imber 1997: 25.) For a
more detailed account of the spread of Hanafi doctrine in Ottoman Bosnia and
its subsequent application in the shari‘a courts there, see Handžić 1941.
Zečević, Missing Husbands, Waiting Wives
353
18. For
a summary of different scholarly opinions regarding the development of
the schools of Islamic law, see Hurvitz 2000: 39–45.
19. Brinkley
Messick’s comment on the main features of the authoritative texts
is highly appropriate in this context: “Authoritative texts are as fundamental
to the history of shari‘a scholarship as they are to the history of other
intellectual disciplines. Such a text was ‘relied upon’ in a place and time:
the knowledgeable consulted it, the specialist based findings upon it, scholars
elaborated its points in commentaries, teachers clarified its subtleties, students
committed its passages to heart.” (Messick 1996: 16.)
20. Thus,
J.R. Walsh claims that unlike their colleagues who interpreted Islamic
law in �
� mufti s
who were in charge of issuing expert-opinions on issues of Islamic law in
the “homelands” of the Ottoman Empire (Rumeli and Anatolia) were just
pious Muslim men who were not members of the ‘ulamā‘ class. (Walsh, EI2
2: 867.) While more research is needed with regard to the backgrounds of
the local mufti s in other parts of the Ottoman Balkans, several biographical
dictionaries of Bosnian mufti s during the Ottoman era demonstrate that after
the late sixteenth century, all mufti s in major cities and towns of Ottoman
Bosnia were indeed members of the learned religious elite (the ‘ulamā‘) who
had spent years studying in Islamic colleges both locally and elsewhere in the
Ottoman Empire.
21. See, for example, Haso Popara’
s vol. 9 of Dobrača et al. 1996–2004.
22. In
one of the most authoritative sources for the study of the Ottoman fetvā,
Uriel Heyd has elaborated on some common introductory phrases that a
questioner would use before posing his question(s) to a mufti. Some of these
phrases read as follows: “What is the reply [of the great Hanafī teachers]
concerning this problem? The great teachers of religion …the guardians of
the true religion…what do they say concerning this problem?” (Heyd 1969:
39–40.)
23. Several
biographical dictionaries of the Bosnian-Ottoman religious elite
can be used for an analysis of a variety of commentaries, texts, and fatwa
collections originating from Ottoman Bosnia. See, for example, Šabanović
1973 and Bašagić 1912. Another important source for the study of Bosnian
legal culture and the literary activities of Bosnian jurists during the Ottoman
period is Ljubović 1996: 63–80.
24. Šabanović 1973: 347–53.
25. Hasandedić 1975: 433; Hasani 2003: 248.
26. For a comprehensive list of al-Mostari’
s works, see Fajić 1995: 144–45.
27. In
his biographical dictionary of the mufti s of Ottoman Sarajevo, Sejfudin
Kemura pointed out that after the mid-sixteenth century, they were all recruited
from a pool of local religious scholars who had, prior to their appointment,
graduated from various Ottoman Islamic colleges both in Bosnia and elsewhere
in the Ottoman Empire. The appointment of non-Bosnian mufti s in Ottoman
Bosnia prior to the mid-sixteenth century may be explained by the fact that a
354
Women in the ottoman Balkans
native Bosnian-Ottoman religious educated elite was only formed there in the
mid-sixteenth century. (Kemura 1916; Hasandedić 1975.)
28. Mustafa
Hasani correctly observes that mufti s in the Ottoman Empire
interpreted both components of Ottoman law— shari‘a and qanūn. (Hasani
2003: 245.) An excellent example of a mufti’s engagement with issues
pertaining to the latter can be found in al-Mostari’s collection of fatwa s, which
included numerous opinions in response to queries on problems regulated by
state law. (Cf. Ahmed al-Mostari: 197a–233b.)
29. Bašeskija 1968: 186–97.
30. Mula
Mustafa Bašeskija writes about an eighteenth-century mufti in Sarajevo,
Hājjī Muhamed Efendi Čajničanin, who had been given this post due to
successful networking and not scholarly expertise. Shortly after Sarajevans
realized that his fatwa s were not reliable, they began to mock him in public,
which resulted in his resignation from the post. (Bašeskija 1968: 218.)
31. Cf. Masud, Messick, and Powers 1996: 3–33.
32. Heyd 1965: 41–42.
33. The
indication of the authoritative texts the mufti consulted while examining
the issue at hand was a common feature of fatwa texts issued by Bosnian
muftis in the Ottoman Empire. Cf. Hasani 2003: 244–45.
34. The
administrative language of shari‘a courts in Ottoman Bosnia was
Ottoman Turkish; consequently, all documents drafted at various shari‘a
courts throughout Ottoman Bosnia are written in Ottoman Turkish. For a
detailed analysis of the content and form of the court documents originating
from Ottoman Bosnia, see Gadžo-Kasumović 2003.
35. The
practice of bringing fatwa s issued by local mufti s to various courts in the
Ottoman Empire was common. The purpose of bringing a fatwa to court was
to bolster one’s case and hence to increase the chances of getting a favorable
ruling from the sitting judge. However, as fatwa s were non-binding legal
opinions, judges were not required to take them into consideration while
delivering their rulings. For the practice of bringing fatwa s to Ottoman shari‘a
courts, see Jennings 1978: 134; Peirce 2003: 114–15; Ergene 2003: 139–40.
36. Messick 1996: 151.
37. For
a useful summary account of the Hanafi doctrine concerning the legal
status of the “missing man,” see Tyan 1970.
38. Islamic
law is gendered because it takes differences between the sexes as the
basis for the creation of a gendered legal discourse in which one gender (male)
is given power over the other (female). However, as Abdulaziz Sachedina
observes, the gendered character of Islamic law is much more explicit in
the sphere of inter-human relationships [ mu‘amalāt] than in the sphere of
God-human relationships [‘ ibādāt]. Consequently, the most obvious features
of the gender asymmetry are in those areas of Islamic law that regulate the
interrelationships between men and women, such as marriage and divorce
laws, as well as some other areas of family law. (Sachedina 2000: 160–76.)
Zečević, Missing Husbands, Waiting Wives
355
39. The
principle of nushūdh (lit. “transgression”), which in most cases implies
a wife’s disobedience to her husband, is one of the strongest indictors of
the gender asymmetry that is imbedded in the laws governing marriage and
divorce. Consider, for example, the following summary of a court case from a
mid-eighteenth-century shari‘a court in Sarajevo, in which a Bosnian Muslim
husband claimed that his wife exhibited disobedience [ nushūdh
d leaving the house in order to visit her father’s house. Murteza
said that this frequent going-and-returning was not caused by his unjust
treatment of her, but by her disobedience. Consequently, he requested that the
court absolve him from the obligation to pay alimony to his disobedient wife
and to recognize her behavior as grounds for divorce [ alāq]. (Gazi Husrev
&n
bsp; Beg Library, Sicil No. 6, 75.)
40. T
ucker 1998: 63.
41. In
the chapter “Etiquette of Cohabitation, What Should Take Place During
Marriage, and the Obligations of Husband and Wife” of his Iyā‘ ‘ulūm al-
dīn, the famous theologian and jurist al-Ghazālī (d. 1111) provided a useful
overview of the obligations which married partners needed to fulfill in order to
have a sound marriage. According to him, a husband was obliged to “observe
moderation and good manners in twelve matters: feasting, cohabitation,
dallying, exercising authority, jealousy, support, teaching, apportionment,
politeness at times of discord, intimate relations, producing children, and
separation through divorce.” (Farah 1984: 93.)
42
al-Hidāya fī al-fiqh al-anafī by al-Marghīnānī (d. 1197), an extended version
of the author’s Bidāyat al-mubtedī, has over time became one of the most
important authoritative texts of the Hanafi fiqh. Cf. Dobrača et al. 1996–2004,
9: 117. For the importance of al-Hidāya in the Ottoman Empire, see Peirce
2003: 114.
43. al-Mar
ghīnānī 1937: 903.
44. Ahmed al-Mostari: 52a.
45. Mullā
Khusraw’s Durar al-ukkam fī shar ghurar al-akām is the author’s
commentary on his work Ghurar al-akām. Durar al-ukkam was one of the
most important Hanafi authoritative sources among Ottoman jurists. (Dobrača
et al. 1996–2004, 9: 251.) This source was used quite frequently by al-Mostari
throughout his collection.
46. Ahmed
al-Mostari: 53a. Although al-Mostari correctly ascribed this opinion to
Mullā Khusraw, it had actually been taken by this latter from al-Marghīnānī’s
al-Hidāya. This is an example of the manner in which authoritative opinions
Women in the Ottoman Balkans: Gender, Culture and History Page 64
