Ottoman Islamic Law and “Early Modernity”

In my writings on Ottoman legal history I have tried to avoid using the term “early modern” (the “early modern” in my book’s title was a recommendation of my editor at Cambridge University Press, who thought it would increase the sales).¹ This is not to deny the recurring interest in the question of (early) modernity in modern historiography, especially given the fact that there are enough scholars, students, and publishers who, for whatever reason, often refer to the “early modern” Islamic world and, more narrowly, Ottoman Empire. Instead, I have been interested in tracing genealogies and long histories of practices and perceptions throughout the post-Mongol period, from the thirteenth through the nineteenth century (a historiographical period that is, like any other, open-ended), suggesting that some of these practices were invested with new meaning in the nineteenth century. By focusing on genealogies, my aim has been to examine the intersections of multiple intellectual projects, while not adopting (early or late) “modernity” as the master narrative.

In this short essay, I would like to further reflect on thinking genealogically about the divides that are employed by scholarly and less scholarly “modernists,” in general, and in Middle Eastern and Islamic studies, in particular. I find genealogies helpful to think with because of the multidirectionality they offer: they connect pasts to presents (and, perhaps, futures), but at the same time retain a healthy dose of historical contingency. Thinking genealogically about “modernity” allowed me to treat it as a self-conscious intellectual project with a particular history and spatial circulation, a project that developed certain perceptions about a range of issues such as self, history, the divine, and the proper relations between sovereigns and subjects. Self-consciousness seems central to me. By self-consciousness I do not mean a coherent highly articulated project, but hope to stress the employment of a category. To paraphrase Talal Asad, “if there are governments, if there are generals and politicians and bankers and even ordinary people like us, who talk about ‘the modern’ [. . .] then there is a modern. Because that is what our own activities presuppose. And in presupposing it, they partly create it, for good or for ill.”² Self-consciousness also helps distinguish between shared practices, material and technological conditions, and contacts and the meaning different individuals and groups invested them with.

Consider, for example, the treatment of the nineteenth-century legal code, the Mecelle-i Ahkam-i Adliyye, and, more generally, the question of codification of Islamic law in modern historiography. The attempt to codify the Hanafi tradition in a code with numbered articles that mimicked European legal codes was perceived by many nineteenth-century Ottomans, many of their contemporaries in Europe and across the Islamic world and by several modern scholars, such as Brinkley Messick, Kenneth Cuno, and Avi Rubin, as an enactment of modernity (in Rubin’s apt wording, “modernity as a code”). Indeed, the Mecelle presents itself in terms of rupture from a chaotic past in which jurists had to find their way through a maze of competing opinions and views. Instead, the Mecelle promised a systematic, organized and easily applicable code.

While not denying some innovative aspects of the Mecelle and other legal codes (such as the numbered articles and its relative conciseness), it seems to me that the historiography on the Mecelle and codification of Islamic law more generally has tended to reproduce the narratives that the compilers of the codes tell about their projects and the ills they sought to remedy. An examination of pre-nineteenth-century canonization and organization of the doctrines of the Hanafi school, however, suggests that the Ottoman dynasty/state and its learned hierarchy tried, and, to my mind, was quite successful in determining what opinions from the range of opinions within the Hanafi school should be applied in specific cases. In other words, at least for pre-nineteenth-century jurists, the pre-Mecelle jurisprudential corpus was much less chaotic than the nineteenth-century code may lead one to believe and had a fairly coherent logic (as illustrated by scholars...