One of the most important effects of the post-1980s women's movement in Turkey
has been to draw the attention of many researchers to women's issues. As a
result, some very valuable studies have been published on women both in the 19th
and 20th centuries under Ottoman rule and in the contemporary period. Most of
these studies, each of which makes a valuable contribution to the whole, have,
in my opinion, succeeded in their attempts to bring to life the women of the
time in their own voices and through their own work. However, it is not always
possible to study women or make them visible through their own work as studies
which limit themselves to this kind of material inevitably fail to give an idea
about the "other women" who lived at the same time and in the same
place. In women's studies, one of the important means of overcoming the
shortcomings mentioned above is to study the women within the context of the
surrounding state, religious-ideological, social, cultural and economic
structures instead of studying women as if they were an island in society
without any relationship to the dynamics of social processes. In this way,
women's studies act as catalysts for a comprehensive chain of studies,
elucidating them by providing a women's perspective and placing the concepts of
women and gender in the forefront.
A study of the records of the office of the sheikhulislam, in other words
of the fatwas issued by the sheikhulislam, will enable women's
studies to extrapolate the situation of women in general from the study of the
cases of individual women, thereby adding important information to and
broadening the scope of these studies. The records of the sheikhulislam contain
questions, background information and the replies of the sheikhulislam. They
provide an opportunity to study through the state archives what men said about
the situation of women and their relationship with their husbands, fathers and
children. The records include questions by individuals, mostly men, and reveal
attitudes towards subjects which directly or indirectly affect women and
relations in the family, such as incest, marriage, divorce, custody,
inheritance, women's perceived misbehavior; maintenance problems and adultery.
So, what was the fatwa institution; how did it work and who was the sheikhulislam
who headed this institution?
The Ottoman Empire was governed by the Hanafi school of canonical law which is
one of the four recognized Sunnah doctrines. The person who provided responses
based on religious precepts to specific or general legal questions addressed to
him was called the müftü and his decisions were called fatwas.
The müftü was given the title of sheikhulislam. When formulating
his reply to the questions addressed to him, the müftü, or sheikhulislam,
would refer to various relevant sources before making a ruling. Some of the
Ottoman sheikhulislams collected the questions addressed to them,
together with their responses, into books, while for others it was their
students who compiled the questions and answers in book form. The archives
contain such books of fatwas, which are either printed or written out by
hand. I would also like to note that collections of fatwas delivered by sheikhulislams
who were particularly well known for their learning and their piety were
used by later generations as almost canonical reference resources. This was the
case with the fatwas of Sheikhulislam Ebu Suud and Çatalci Ali.
In the Ottoman Empire the sheikhulislam was the head of the Muslim
religious leaders and his office was distinct in function and authority from the
office of the kadi. Until the 16th century the office of the müftü and
the duties of the kadi had been combined in the same person, but later
these responsibilities were separated and we see the control of the kadi system
being given to the sheikhulislam. There were also examples of a sheikhulislam
who had been a kadi before being appointed sheikhulislam. The
grand vizier had the greatest influence in the appointment of the sheikhulislam,
but there are sources which report that the sheikhulislam could
sometimes be directly appointed by the sultan. The result was that the sheikhulislam
was a member of the state apparatus from an early age, was trained as a
Muslim cleric, and was a civil servant who rose step by step through the state
bureaucracy.
The sheikhulislam would work together with an expert cadre in the
institution to prepare the fatwas. A person or persons wishing to receive
a fatwa would come to the institution, and the relevant civil servant
would write down their question. The question would pass through several civil
servants' hands within the institution. The formula in which the question was
expressed is important. When the question was written down, the names were
generalized and the names of the individuals concerned were replaced by stock
names for the different sexes; e.g. Zeyd, Amr, Bekir etc. for men and Hind,
Zeynep, Hatice etc. for women. The staff of the institution would bring the
question, together with the fatwa, that is, to say the response to the
question, which they found in the law books, to the sheikhulislam. The sheikhulislam
would study the question and the fatwa and give his approval. The
responses were "acceptable or unacceptable, legitimate or illegitimate, and
admissible or inadmissible." As mentioned above, the office of the kadi,
and .the sheikhulislam were separated in the 16th century. As a
result, the sheikhulislam's fatwas did not have the force of law and the sheikhulislam
pad no authority to prosecute or judge. The competent authority for trying a
case was the kadi. But if the kadi could not reach a decision in
accordance with the law, there is evidence that appeals were made to the sheikhulislam.
This article will not address a number of subjects, such as the procedures of
the office of the sheikhulislam and women's relations with the state
through this institution, because of the limits of space and the need to
concentrate on specific issues. However, before peering back across the
centuries through the mists of time and entering the women's bed- rooms, I would
like to discuss in more detail the structure of the society under study in order
to give the reader a general frame of reference. We are in Istanbul, the capital
of the Ottoman Empire. Those who ask the questions are the inhabitants of
Istanbul. .The time is when Çatalci was sheikhulislam, between
1674-1686. The structure of this society was composed of a very detailed network
of hierarchical relations. This hierarchical structure divided society into
"classes" as well as religious congregations, sexes, and into those
who were free, slaves and concubines. There was some movement between different
communities, groups and congregations. For example, a concubine who bore a child
of a free man had the chance of being freed, while a Christian woman could
change her life by becoming a Muslim. I would like to summarize the material by
saying that it reflects the situations of people, mostly Hanafi "free"
men in 17th century Istanbul, their problems and attitudes. Slaves, concubines,
non-Muslims, children and women generally did not ask the sheikhulislam any
questions. We shall try to get to know them indirectly, not from their own
statements, but through the references to them that appear in the questions.
Most
of those who applied to the office of the sheikhulislam for
advice were men. There appears to be no reason, deriving either from the
state or from the office itself, why the number of applications from
women is smaller. But the reason why the relationship between women and
the office was weaker becomes clear when we consider that: a certain
amount of money had to be paid in order to receive a fatwa from
the office; women needed their husbands' permission to go out on the
street, compared with the unrestricted freedom of mobility of the men
and men's dominance of the streets; and the fact that when women made a
statement as a plaintiff or bore witness, what they said was considered
half the value of any statement by a man. We should also note that,
because the decisions of the sheikhulislam tended to favor men,
women who had problems with their husbands and other male relatives must
have felt discouraged from applying to the institution.
One
of the most frequently encountered problems in the fatwa collections
concerns the marriage of small children by their parents or other family
members. In this type of marriage, the father or guardian of the girl
was able to use the money or the goods that were given to the woman;
this money is known as mahr in Islam (the marriage contract would
include details of the money/goods given by the man to the woman and
whether he undertook to pay then or later) and the practice appears to
have been very widespread in the Ottoman Empire. For example:
-
If
Zeyd marries his younger daughter Hind to Amr, when Hind reaches
adulthood, does she have the right to annul the marriage? Answer:
No!
-
Is
a marriage by religiously sanctioned force in accordance with
canonical law? Answer: Yes!
Girls
who were made to marry in this way were unable to use their right
to annul the marriage on reaching maturity and were virtually sentenced
to a marriage which they had not chosen. The reason was that, if the
marriage were to be annulled, the mahr had to be immediately paid
back to the husband. We see that in most of the cases in which girls who
had been married in this way applied to the sheikhulislam for an
annulment, the ruling was .in favor of the continuation of the marriage.
But, because Islam gives the man the unconditional right to dissolve the
marriage -- and such a right was practiced in the society under study-a
boy married in this way could immediately dissolve any marriage
concluded without his consent. I would like to add that, if the husband
could prove that a girl married to him as a child was "physically
able to have sexual relations,"
she could be taken by force from her family with the approval of the sheikhulislam;
and one fatwa refers to a nine year old girl who was
considered ready for sexual intercourse:
-
If,
at the age of nine, Zeyd's young wife Hind is deemed capable of
sexual intercourse, does Zeyd have the authority to take her from
her mother and natural grandmother? Answer: Yes!
-
eyd's
young wife Zeynep lives with her mother and the mother of her wet
nurse Hind. She is seven to eight years old but thin/weak. If it is
impossible for her to have sexual intercourse, can Zeyd take Zeynep
from Hind. Answer: No!
We
also see that in some cases the mahr or maintenance paid by the
husband during the marriage led to constraints on and injustices against
women. For example:
If
Zeyd's wife Hind fled from Zeyd's house and took refuge in her sister
Zeynep's home, does he, given that he has paid the mahr in full,
have the canonical authority to take her to his house? Answer: Yes!
Some
examples under study concern women who did not want to live in the
neighborhood chosen by their husbands. The ruling of the sheikhulislam
was that, if the husband had paid the mahr, the woman had to
obey her husband.
In
some of the questions regarding maintenance, women's husbands moved far
away, leaving them without any means of support. So women took 'out
loans from the kadi and, on their return, their husbands refused
to repay the loan:
Zeyd's
wife Hind was left without any maintenance. Zeyd went to another country
and Hind went to the judge and herself arranged to borrow a specific sum
as maintenance and lived on this money for two years. When Zeyd returned
and Hind asked him to repay the money she had borrowed, Zeyd claimed:
"I divorced you by letter a year ago." Hind completely denies
this, but, if there is nothing to prove that Zeyd is telling the truth
except his word, is he legally obliged to pay the "debt? Answer:
No!
Indeed,
in one example, the husband even claimed: "I divorced my wife ages
ago." It is obvious what the husband is placing his trust in: In
Islamic law, the husband has right to divorce (without needing to have
recourse to legal proceedings) and marriage/divorce and other such
contracts do not need to be in writing.1 In other words, in order to
secure a divorce, the husband just has to open his mouth. In a social
structure where the laws and the attitudes are orally-based, and in
which many agreements do not have to be written down2 for a
claim such as the one mentioned above, the husband does not have to base
his case before the kadi or the sheikhulislam on any kind
of court decision or written document. That is to say, the state can do
nothing but take the husband's word. As a result, the sheikhulislam does
not rule that the husband is responsible for the entire debt.
Where
non-Muslim women divorce the Muslim men whom they have married, we find
disagreements about who will have custody of the child and for how long.
In such situations, the Muslim father or relatives say that the reason
they want to take the child away from the mother is the possibility
that, as she is not a Muslim, she will teach the child her own religion:
Christian
Hind divorced her Muslim husband Zeyd. She was given custody of their
young son Amr and has begun to give him religious instruction. If Zeyd
finds a Muslim nurse, does he have the authority to take Amr from
Hind? Answer: He does!
As
a result, we see that the child is given to the Muslim father or family.
This religiously-based injustice is also applicable for non-Muslim
husbands whose wives have chosen Islam. In such a case, the children are
immediately distanced from the father and the right to custody which is
otherwise granted to the husband -- with regard to his wife and children
-- is not recognized for a non-Muslim husband. In such situations
we can see that the hierarchy between religious congregations takes
precedence over male domination.
Before
beginning to discuss sexuality, I would like to note that women mostly
went to the sheikhulislam for assistance with economic problems
and the least for issues regarding violence or abuse by their husbands.
It should be stresses that what was deemed important in questions
related to the latter was whether the violence and abuse by the husband
were or were not on religious grounds:
-
If
Zeyd beats his wife Hind for a reason not sanctioned by religion,
what needs to be done? Answer: A reprimand!
-
If
Zeyd's wife Hind ceases praying and Zeyd tries to persuade Hind to
resume praying and Hind does not pray and Zeyd scolds Hind,
does Hind have the right to take Zeyd to a judge for the above
mentioned scolding? Answer: No!
I
have noted above that, as a general rule, women do not talk about their
problems and that our understanding of them is through the ways in which
men relate their own problems. We notice this even more when it comes to
women's sex lives. When, in order to understand women's sex lives, we
examine the sexually related problems of the men, we find contradictions
that need to be resolved and confessions which can be grouped together
as sexual offences. The most common problems relate to incest and
homosexual relations. But what is most striking is that, even though all
of these sexual relations were prohibited, men who needed them to be
approved and legitimized applied to the institution and eventually
secured approval. For example, two men admitted that they had had sexual
relations and they asked whether they could, or could not, marry each
other's daughter and the sheikhulislam said: "Yes!"
After
Zeyd has sodomized Amr, is it permissible for Zeyd to marry Amr's
daughter Hind? Answer: Yes!
Furthermore,
for example some men abused their natural daughters or their .step
daughters, and asked whether or not they could continue their marriage:
-
If
during the night Zeyd, mistaking his eight year old daughter Zeynep
by his wife Hind for Hind, lustfully fondles and kisses her, is Hind
forbidden to Zeyd? Answer: No!
-
If,
at night, Zeyd's daughter Zeynep by his wife Hind is frightened and
goes into Zeyd's bed and Zeyd's sexual organs. are aroused and some
of Zeyd's organs make lustful contact with some of Zeynep's organs,
is Hind forbidden to Zeyd? Answer: Yes!
In
these questions those had been sexually abused were all little girls -
to put it another way, there was no mention of male children - and the
psychological distress of these violated, terrified, silent bodies was
reduced to men's inner contradictions about their behavior. Neither in
the questions nor in the rulings is there anything related to their
future- including whether this sexual abuse would or would not continue.
The "problem" was not concerned with them, but with men's
contradictions and the psychological well-being and the social harmony
which should be protected by theshelkhulislam.3 Why was
it important whether or not these men remained married? Because the
family is the foundation of society and divorce brings not only
financial responsibilities to the male concerned but also what is not
wanted in society, namely divorced couples and abandoned children.
The
sheikhulislam does not seem to be concerned about the abuse that
girls and women suffered in the family (in two of the questions women
complained that their husbands had forced them to have anal
intercourse):
If
Zeyd sodomizes his wife Hind, can Hind divorce Zeyd? Answer:
No!
However,
he is quite meticulous about contradictions concerning men's various
claims on women and children:
-
If,
after Zeyd has married Amr's daughter Hind, can Zeyd marry Amr's
freed slave Zeynep as well as Hind? Answer: Yes!
-
If,
after Zeyd has married Hind with whom he has committed adultery,
Hind gives birth to a child less '.than six months after the
marriage, is that child the legitimate offspring of Zeyd? Answer:
No!
Men's
sexual freedom is only limited by the boundaries of other men's
sexuality! At this point I would like to recount a situation. I came
across in a question and fatwa about a child's parentage
(paternity) which contrasts with the sheikhulislam's meticulousness
in the case mentioned above. In cases where women became pregnant a long
time after their husbands had died, these children were still declared
to be the offspring of the late husbands. Such examples suggest that
women may have had voluntary or involuntary relations with men other
than their husbands.
Although
issues related to prostitutes and adulterers are rarely mentioned in the
fatwas, there are some questions about women making a .living as
prostitutes or who had committed adultery:
-
If
Hind, who .is married and pregnant, has been proved by Islamic law
to have committed adultery and if, after the sentence has been
passed, she gives birth and the baby will have another nurse to look
after her/him, is it necessary to delay the death by stoning for one
or two years? Answer: No!
-
If
Hind, who was an obedient wife, gives herself to Zeyd, and Zeyd
commits adultery with Hind, what should happen to Hind? Answer:
Stoning to death.
-
Hind
is divorced from her husband Zeyd and has custody of their two to
three year old son Amr. If Hind is a prostitute sleeping out in the
wilds and leaving the boy alone at home and if there is a
possibility of him being harmed and if there is no other person to
look after him, Zeyd have the right, with the judge's approval, to
take the boy from Hind? Answer: Yes. )
The
nature of our material means that it reflects the problems and
contradictions of people. However, it does not allow us to understand
the women's experiences, how they conducted their everyday lives or the
sources and freedoms from which they drew strength and inspiration. Of
course, social life was not entirely composed of sexual abuse, illicit
relations and unhappy marriages. There were women in this society who,
for example, had sexual relationships with other women. However, women's
homosexuality does not appear as an issue in any of the questions. In
the face of the absence in the dusty state archives of anything about
women's lives, it is impossible not to wish that "if only women's hamams,
houses, mansions, in other words, the places where women lived,
could speak."
If
one day you happen to be in Istanbul or if you are blessed with already
being an inhabitant of the city, go to the Süleymaniye mosque complex.
In every corner you will find things which will seize you and transport
you back hundreds of years. On the one hand there is the wonderful Süleymaniye
Mosque and the sense of history it inspires, and on the other the
buildings in the complex, teeming with modern life and dragging you
through a mental and emotional journey between the past and present. I
have made one of my journeys in the work you are now reading. Plucking
up all of my courage, I entered the Süleymaniye archives, which is one
of the most moving buildings in the Süleymaniye complex, and here I
studied questions addressed to the Ottoman bureaucrat Sheikhulislam Çatalci
Ali Efendi, who was a religious authority in the 17th century, about
issues such as people's private lives, family etc. In this article I
wanted to concentrate on subjects for which I hope the reader does not
need specialist background knowledge and explain how the type of
information that could be found in the archives of this religious
institution archives could benefit social-sexuality and women's studies.
More than for any academic reason, this study, like many other similar
studies, is an effort by a feminist researcher in modern Istanbul to
uncover and reveal "women"/"herself' in history.
NOTES
1.
Although the religious laws studied in this paper are based on the
Hanafi doctrine, I would like to note that, apart from exceptional
circumstances, all four Sunni doctrines give the right to divorce to
men. According to Hanafi law, a girl who is married by a parent or
guardian while still a child can, on reaching maturity, divorce her
husband. Another exception is when the right to divorce is included in
the woman's marriage contract. That is to say, when she gets married the
woman can stipulate such a condition. I should also add that men swear
an oath called "laying down a condition;" These oaths can
include undertakings by the man to his wife such as: "if I do this,
then you have the right to divorce." And if such an eventuality
occurs, and the designated time period has not expired, then the woman
can use the right to divorce, but if the time limit has expired then the
woman loses the right to divorce. In addition to the above, the woman
her- self can ask the kadi for a divorce on grounds justified by
religious precepts, such as if her husband has been missing for a long
time or is a drunkard, etc.
2.
We should keep in mind that in this society the laws and the structure
of the state are based on Hanafi Islam.
3.
I would like to note that, in this context, people do not only have
juridical recourse to the sheikhulislam, but they also trust it
to treat their applications with confidentiality and, as a result, they
are able to share their "sins" with the office in greater
confidence.