In The Second Formation of Islamic Law, Guy Burak peers into the history of the rise of Hanafism as the official legal school of the Ottoman Empire. By drawing on biographical dictionaries (tabaqāt), chronicles, and selected fatwa compilations, Burak narrates the emergence of Ottoman Hanafism as a “distinct identity.” Rather than taking the Ottoman Hanafi tradition as an isolated entity, the author associates it with former Asian Islamic legal traditions. By doing so, he calls attention to the possible intellectual connections that existed between Ottoman and the Transoxanian (“Mongol,” in the author's words) jurisprudential realms.
The first part of the book focuses on the office of the mufti in the Mamluk and Ottoman jurisprudential traditions. The objective of the discussion is to argue that the Ottoman Empire, unlike the Mamluks, established a clearly defined judiciary hierarchy. Burak undertakes in his discussion a detailed quantitative analysis of the certificates (ijāza) issued by the Mamluk jurists that enabled their students to teach law and issue fatwas. This analysis indicates that after the 16th century, the issuance of the ijāzas in former Mamluk domains drastically declined. This coincided with the official appointment of provincial muftis in Damascus directly by the Ottoman imperial center, supervised by the imperial mufti (şeyhülislâm). Burak selectively employs specific fatwas and draws on secondary sources to argue that this shift attributed a binding force to the imperial mufti's legal opinions, as well as to those of the provincial muftis, since they were following the fatwas produced by the former. As such he considers fatwas found in compilations as binding opinions applicable to any case throughout the empire, a prevailing but yet-to-be proven tendency in the scholarly literature on the topic. Later, the author turns his focus away from secondary sources to the views of Abd al-Ghani al-Nabulusi (d. 1731), ʿAlaʾ al-Din al-Haskafi (d. 1677), and Muhammad Khalil al-Muradi (d. 1791) on the officialization of the muftiship in the empire. He notes, following al-Muradi's view, that it was through the application of kanun that the imperial center achieved the establishment of a clearly defined judiciary hierarchy and favored a “specific” vein of Hanafi scholarship.
Parts 2 and 3 trace the Ottoman development of what Burak terms a rūmī branch of Hanafism. According to the author, the term rūm/rūmī refers to, amongst other things, a doctrinal tradition adopted by the Ottoman dynasty. In order to demonstrate this, he makes use of the biographical dictionaries written by Kemalpaşazâde (d. 1534), Ahmed bin Mustafa Taşköprüzâde (d. 1560), Kınalızâde Alî Çelebi (d. 1572), Mahmud ibn Süleyman Kefevî (d. 1582), and Edirneli Mehmed Kâmî (d. 1724) on the one hand, and two responses from Greater Syria, mainly those of Ibn Tulun (d. 1546) and the 16th-century jurist Taqiyy al-Din al-Tamimi on the other hand. By comparing these works, the author suggests that from the 16th century onwards, the Ottoman tabaqāt authors deliberately excluded from their biographical dictionaries those jurists who were unaffiliated with the Ottoman learned hierarchy. This is particularly evident in the exclusion of prominent Mamluk jurists from the tabaqāt of Kınalızâde and Kefevî. Of particular interest is Burak's observation with regards to Kefevî’s account: Kefevî represents the Ottoman lands as the dominant Hanafi center and traces the genealogy of Ottoman Hanafism to the Transoxanian jurist Qadikhan (d. 1196) through Sheikh Edebâlî (d. 1326), the father-in-law of the first Ottoman sultan Osman (p. 84). This genealogy, according to Burak, went hand in hand with the jurists’ stress on a specifically rūmī career path and way of training, a process that did not go unchallenged by Greater Syrian jurists. Although Ibn Tulun (d. 1546) was patently silent about the inclusion of the Ottoman learned hierarchy in his own Hanafi genealogy, Taqiyy al-Din al-Tamimi (b. 1543) tried to constitute the amalgamation of both rūmī and Greater Syrian jurists. While depicting a meticulous picture of the intellectual landscape of the period, Burak fails to answer whether the impact of the alleged tension between rūmī and Greater Syrian jurists can be traced in the doctrinal preferences of these jurists in their jurisprudential works.
It is in Part 4, therefore, that the reader expects to find this hitherto lacking doctrinal dimension in the work. Central to this part is a group of texts mentioned in certain sources as the “books of high repute” that the author considers the manifestation of an “imperial jurisprudential canon.” According to Burak, in the works of authors such as Kâtip Çelebi (d. 1657) and Birgivî Mehmet Efendi (d. 1573), references to this canon are frequent. An example for these books is the Egyptian Hanafi jurist Ibn Nujaym's (d. 1563) Similarities and the Perspectives in the Madhhab of Abu Hanifa al-Nuʾman (al-Ashbah wa-l-nazaʾir ʿala Madhhab Abi Hanifa al-Nu'man) that became part of the imperial canon after the “approval” of this text by imperial mufti Ebussuûd (d. 1574), whom Burak considers a “canonizing authority” (Chapter 1). The author bolsters his argument for the emergence of an imperial canon during the 16th century by comparing the bibliographies of the fatwa collections of two 17th-century jurists: the imperial mufti of the time Minkerîzâde Yahyâ Efendi and Greater Syrian jurist Khayr al-Din al-Ramli, who did not hold an official position. While al-Ramli devoted an important part in his bibliography to the opinions of the jurists operating in Greater Syria, these jurists do not figure in Minkerîzâde's bibliography. What is more, the bibliographies of officially appointed Greater Syrian jurists such as al-Haskafi (d. 1671) show an Ottomanization of the Greater Syrian canon. Hence, according to Burak, the Ottoman learned hierarchy generated what he calls a “canon consciousness,” a supposedly unique development in Islamic legal history in the premodern era. The essentialist nature of this argument becomes clear when we remember that the historicity of this process of the creation of agreed canons, according to Benjamin Jokisch, stretches back to the 8th century.
In the final part of the book, Burak makes a comparison between Arabic and Ottoman fatwas. He notes that the Ottoman learned hierarchy gradually influenced the stylistic aspects of fatwa writing in Arab provinces. He then focuses on the fatwas and legal opinions of al-Ramli and al-Timurtashi, arguing that although they were influential jurists in their own localities, their fatwas did not carry the weight that the fatwas of the members of the Ottoman learned hierarchy did, as the latter monopolized institutional authority. The problem with this assertion is that it is difficult to prove in the absence of an analysis that focuses on the court records. In fact, the court records of Diyarbekir in the 18th century contain frequent citations of al-Ramli's text.
In his conclusion, Burak turns back to the argument he raises in the first chapter: through the application of kanun, the rūmī branch of Hanafism monopolized the doctrinal apparatus. It is at this point that the rather vague usage of the terms pre-Mongol and post-Mongol in the book come into the picture. The kanun was rooted in the “Turko-Mongol” heritage as yasa/töre tradition that, in turn, made it possible for the Ottoman Empire to constitute such a legal hierarchy in the post-Mongol context. This claim raises the following, unanswered question: If kanun was the manifestation of yasa/töre tradition, how are we supposed to explain the relationship between the Mamluk siyāsa doctrine and the Ottoman kanun tradition?
As such, the reader wonders if Burak is not too hasty in connecting the Ottoman and Asian legal traditions, without elaborating in depth on already existing doctrinal conversations between the Greater Syrian and Transoxanian traditions. The omission of doctrinal sources by the author leads him to bypass the chain of references, typically made by the later jurists (al-mutaʾakhkharūn) in their jurisprudential works (furūʿ), and not necessarily fed by uniquely Transoxanian traditions. To this reader the author seems to be straddling the line between ethnocentrism and a more nuanced historicized approach, most visibly when he calls his readers’ attention to the importance of the “ethnic” origins of the rūmī jurists (p. 55).
This point raises even larger questions with regard to the non-problematized use of tabaqāt literature and fatwa compilations for the writing of legal history. We may ask: How is it possible to take fatwas found in the compilations as binding “legal rulings” without looking at the ways they are adduced in legal practice? Given that the technical language of fiqh cannot be traced in any tabaqāt work, to what extent is it plausible to sketch out a body of texts considered as “canon” simply by drawing upon the titles of the books referred to in tabaqāt? By looking at the tabaqāt literature one may very well find the concern of the Ottoman jurists with the establishment of legitimacy by placing the rūmī genealogy in the larger history of the Hanafi jurisprudential tradition. Yet, from the perspective of legal history, the question must still be raised: Can such a center-versus-periphery lens be taken as a trustworthy reflection of jurisprudential operations at the ground level? Looking at the legal praxis, it seems that it is the jurisprudential influence of the text and the ability of the provincial muftis (kenar müftileri) to produce casuistic opinions on court cases that determine the stature of the text, rather than the dynastic or official prestige attached to it.
All in all, The Second Formation of Islamic Law provokes, among others, the following historiographical question: What is Ottoman legal history the history of? This basic, yet central question calls for the development of new methodological tools with which to locate Ottoman legal history within the larger context of the evolving discipline of legal history. This will permit an examination of the history of Islamic/Ottoman law beyond the conventional axioms of area studies (or Islamwissenschaft) as an intellectual terrain of jurisprudence, the basis for sophisticated techniques of law and governance. Such an approach would allow the historian to account for the complex history of the movement of specific jurists and their texts across historical geographies—beyond ethnocentric historiographical topos—and would link the wide-flung Hanafi tradition to the jurisprudential mappings of the early modern Ottoman world.
