Understanding the Ottoman Legal System and Legal Practice

The Significance of Bosnia

Abstract

This paper analyzes the relationship between Islamic jurisprudence, Ottoman kânûn and legal practice with focus on the province of Bosnia. The issues examined include the land and taxation system, and special kânûns about Vlach population, and mining and its taxation. The author argues that sultan’s legal authority in these two spheres was limited to defining taxes to be collected by the state, while the economy itself is largely defined by environmental and social aspects of production. The cases in point – the Vlach kânûns and the kânûns for mines in Bosnia – demonstrate that pastoral economy as practiced in the region, and mining operations were regulated by environmental factors and practices established by the groups to whom the laws were issued, while the government, i.e. the sultan defined the proportions of products to be given as tax to the state. The early and mid-sixteenth century failed attempt toward a different understanding of kânûn, represented by the abolishment of the previous legal practices and changing the Vlach economy from pastoral to agricultural, demonstrate that economy and economic relations could not be regulated by the sultan. In addition to that, this attempt reveals the conflict between the Islamic legal learning and Ottoman practices created by the purist and formal approach to interpretation of the Ottoman taxation system. This conflict was resolved by the legal interpretation of the mîrî land system the Ottoman sheikhulislam Ebu’s-Su‘ûd. This interpretation was not only an Islamic legal explication of this system, but also included a reform of that system. The effects and application of this reform, when examined in the subsequent Ottoman tax registers for Bosnia, shows that all groups of reaya, including the Vlachs, began to pay taxes from the land unit (baştina/çift) rather than from the household as practiced previously. Finally, the author brings the legal problem of cash endowments into the context of Ottoman land system. The interest of the community (maslaha), which was established as the crucial justification for this type of endowment, was derived from the fact that the members of the Muslim community could not, in the absence of land ownership, fulfill the duty of maintaining and supporting the religious life. Thus the legal discussion on this issue came as a result of specific historical and legal circumstances. Again, the importance of these endowments can be observed by their proportions in Bosnia where they, at the beginning of the seventeenth century, amounted to 6.5 million akçes.