An Introduction to Islamic Law (10 page)

Among the first major dynastic warlords to sweep through Iran and the Middle East were the
Saljuqs (r. 1055–1157), committed
Sunnis who defeated the
Buyids (r. 934–1055), but otherwise lacked both religious authority and political legitimacy. Toward solving this problem, the Saljuqs set in motion a pattern of governance that was to be emulated and reinforced until the nineteenth century. Their first experiment was in the province of
Khurasan, where they turned to a policy of establishing
madrasa
s.

Deriving their moral authority and social standing from the religious law, the legists were the only civilian elite that could represent the foreign ruler and the indigenous subjects to each other. By the eleventh century, the social backgrounds of the legists had become varied, representing all segments of society. They hailed as much from the lowest strata of tradesmen and farmers as from affluent merchant families and the politically influential secretarial classes. Their socio-economic connections – deeply embedded in their own societies but also in relative proximity to the ruling classes – thus allowed them to fulfill a variety of functions in mediating the relationship between the government and the subject population.

These
madrasa
s were effectively used to recruit the loyalties of the major jurists in the larger cities. Probably the first to exploit so skillfully the minutiae of the law of
waqf
for political gains, the Saljuq vizier
Nizam al-Mulk personally took charge of appointing, with handsome pay, well-known jurists and law professors. He retained exclusive powers over appointment and dismissal, for this guaranteed his leverage to bestow
personal
favors and thus acquire the loyalty of the legal profession. As political loyalty was not institutional, Nizam al-Mulk’s
personal involvement was indispensable
. With the partial exception of the later Ottomans, this personal involvement was invariably the rule. It was the sultan, emir, vizier or (often) influential female members of the ruling elite who
founded
madrasa
s, named them after themselves, and took a personal interest in how they were run and who taught in them. It was in this way that the foreign rulers and military commanders, who characterized the political scene in the Muslim world for centuries, could insert themselves into social networks, thereby fitting their political strategies into the populations they ruled
.

By the end of the eleventh century, a substantial segment of the legal elite was in the pay of government. With the incorporation of the
professors into the
madrasa
system, the political domain encroached further into the terrain of the law, subordinating a considerable segment – even the elite – of the professorial profession and contributing to the increasing diminution of the “moral community” of the legists. Some of the best professors were now in the company of viziers and sultans. This was why many jurists refused to accept teaching posts, just as many others had refused judgeships. The money that paid the
judges’
salaries came from the same coffer as that which built the towering
madrasa
s and which hired the most accomplished professor-jurists. But the coffer was generally regarded as suspect, having been filled through dubious means. No wonder then that, like the honorable jurists who refused judgeships, professors who did likewise were lauded and praised.

Yet, the legal elite ultimately succumbed to moral compromise, and increasingly so. By the seventeenth century, most legists were in the employ of the government, and the professors and
author-jurists who held out had to function within a diminishing “moral community” created by the financial and material dependence of their less independent peers on the ruling powers. The
madrasa
, now widespread, quickly became a means of recruiting the Shari
a specialists into government service
.

On the whole, an equilibrium did exist between the men of the sword and those of the law: the ruling elite received the cooperation of the scholars and their promotion of its legitimacy, while the scholars received a salary, protection, and the full right to apply the law as they saw fit. The office of the
judge was, and continued to be, the prototype of what was becoming an increasingly complex and interdependent relationship: the government appointed, dismissed and paid the judge, but the judge applied the religious law as the author-jurists and
mufti
s required. If there was one constant in this relationship between rulers and legists, it was that the religious law and its application to the population were not compromised.

The
madrasa
s, we have said, created for the legists abundant
career opportunities. Enterprising students from modest economic and social backgrounds found in the endowed and subsidized colleges auspicious opportunities to pursue their education that in turn opened the door to professional and social mobility. The advanced student soon became an assistant to his professor, then perhaps moved on to work as a court scribe or a court witness. These steps could be immediately followed by an appointment to a judgeship that could in turn culminate in a chief magistracy if the candidate had sufficiently extensive credentials and, at times, connections. Yet, such a career path did not necessarily preclude the
student’s concomitant engagement in the more complex and sophisticated fields of legal scholarship that would lead him, usually somewhat later in life, to the two highest ranks in the profession, namely, those of
mufti
and/or author-jurist
. While both areas of expertise were the most prestigious in the legal profession, they did not guarantee economic or material privileges. By the eleventh century, only the
qadi
and his court subordinates – the scribe and witness – had routinized
incomes. Studying and teaching in the
madrasa
was to become part of this routinization.

Yet, the
madrasa
had no monopoly over legal education, and many legists who served as judges did not acquire their education in a
madrasa
. Furthermore, a minority of
madrasa
graduates ended in government service, mainly as administrative secretaries or viziers, which leads us to the conclusion that the
madrasa
was neither intended nor perceived as a tool for training government administrators and bureaucrats, but rather instituted in order to generate and augment political legitimacy. The
madrasa
’s function of training bureaucrats was only to be introduced in later centuries, as we will see in due course
.

The
madrasa
’s proliferation after the eleventh century created another venue of
income. Now, not only could students benefit from free and subsidized education, but so could jurists gain paid employment as
professors. The more
madrasa
s that were founded, the more teaching jobs became available and, in turn, the larger the number of legists who benefited from them. The growth in these numbers also meant a dramatic increase in competition among the legists. The competition intensified particularly where the major
madrasa
s (founded by sultans and grand viziers) were involved, as professorial salaries offered there were usually higher than anywhere else.

The accrual of income from
judgeships and professorships – not to mention scribal and witnessing functions – allowed a class of legists to make service in the law a full-time, life-long career. By the sixteenth or seventeenth century, especially in the Ottoman Empire, a majority of legists secured most or all their incomes from a judgeship or a
madrasa
-professorship. And they did what everyone else did at the time, be he professor, carpenter, janitor or jeweler: he passed on the profession to his male children
.

Whereas the pursuit of knowledge in the earliest centuries was, generally speaking, done for its own sake, or, more accurately, for the sake of epistemic and
social prestige (and no doubt propelled by a deep sense of religiosity), it had now come to pass that knowledge was being acquired
for the sake of a competitive edge, which in part led back to the acquisition of social prestige. This is to say that the increasing professionalization of the legal profession rendered it – in unprecedented fashion – a venue for garnering political, economic and social capital. Furthermore, once knowledge itself became (as a source of income) commodified, its standards were manipulated as the need arose. And the more posts became available, the more commodified the entire profession appeared to be. In every corner of the Islamic world, the rise and spread of the
madrasa
was causally accompanied by this process of “familial professionalization.”

Between the thirteenth and seventeenth centuries, this process of professionalization grew steadily, but the
legist families could not achieve a complete monopoly over the social background of the legal profession. Conversely, while these families were able to increase their numbers in the legal profession, merchant and other families continued to have access to it, albeit gradually less so. A complete monopoly by the legist families over the profession had to await the early eighteenth century, when in the
Ottoman Empire not a single legist from a merchant background occupied high office.

The legists’ family-centered
monopoly over the legal profession, and especially over prominent
governmental posts, was the result of a deliberate and systematic
centralization policy that the Ottomans had begun to pursue as early as the sixteenth century. Whereas
Nizam al-Mulk founded two or three dozen
madrasa
s throughout the
Saljuq Empire, the Ottomans built a
madrasa
in every city and town they conquered; indeed, the larger the population conquered, the bigger the
madrasa
. But the largest and most prestigious colleges were reserved for Istanbul, where a succession of sultans – as well as other influential men and women – poured much of their wealth into these colossal foundations. More important is the crucial fact that, whereas provincial and smaller
madrasa
s within and without
Istanbul continued to train students and produce legists and scholars of all sorts, the men of law who ran the Empire were consistently graduates of the Istanbul sultanic
madrasa
s. In other words, entry into government service was predicated upon completing the required course of study in these imperial
madrasa
s, which were increasingly staffed by the children of the legist families. Smaller, non-imperial and provincial
madrasa
s continued to train students, but their graduates never came to be part of the professional hierarchy that regulated society and, in certain respects, government
.

The absorption of legal education into the political and bureaucratic structure of government was nowhere more manifest than in the legal hierarchy that the Ottomans constructed as part of their general policy of governance. One of the striking facts about this hierarchy is that, from the
end of the fifteenth century, the
SHAYKH AL-ISLAM
(Chief Mufti) became the supreme religious figure in the Empire; he alone was responsible for appointing and dismissing
provincial judges, and for a long time possessed the de facto power to depose sultans. Until the seventeenth century, he enjoyed life appointment, and could not be dismissed even by the sultan himself. He at times adjudicated disputes upon appeal from litigants before provincial Shari
a courts, but more often ordered judges to conform to the religious law, which he usually stated for them.

The functions of the Ottoman Shaykh al-Islam were not entirely consistent with the earlier judicial history of Islam, where the
chief justice, a
qadi
himself, was the official who would appoint and dismiss provincial
qadi
s and who would hear judicial appeals. Nor were they consistent with the earliest phases of Ottoman legal history itself, as the two highest judicial positions in the Empire were the two
QADI-
ASKAR
S
who controlled, respectively, the European and Asian jurisdictions of the Empire. The explanation for the Shaykh al-Islam’s enhanced role appears, however, to have been closely connected with an evolving policy that had vague beginnings during the
Saljuq period in
Transoxiana and that eventually culminated with the Ottomans – a policy developed specifically to increase the ruling elite’s control over legal education. From the initial stages of the
Saljuq state of
Rum (r. 1077–1307), the forerunner of the Ottoman Empire, a Shaykh al-Islam was appointed as head of the scholarly group involved in legal education in each city.
Professors and colleges fell under his supervision. He was a
mufti
, but he had neither monopoly nor preeminence in this field, for his real powers lay in his office as supervisor of the colleges and their professors. While he would be the only Shaykh al-Islam in the city, he might be only one among several
mufti
s and legal scholars. Thus, in their bid to make of
Istanbul a centralizing and centralized capital, the Ottomans did with the Shaykh al-Islam what they had done with regard to creating a monopoly of
sultanic
madrasa
s: they made the Shaykh al-Islam of Istanbul the supreme head directly responsible for the provinces. This step in the
policy of centralization was not only as decisive as that which led to the creation of sultanic
madrasa
s, but was also in fact an integral part of the overall policy to appropriate into the political realm the legal profession, utilizing it in the administration of the Empire. And that is precisely what the Ottomans managed to accomplish. Yet, in doing so, they also resolved once and for all the problem of legitimacy. In the nineteenth century, as we will see, the Ottomans were to multiply their gains, since the absorption of the legal profession into an Istanbul-centered hierarchy allowed them to decapitate it, and decapitate it they did
.