In one of the book reviews of Haim Gerber's “State, society, and law in Islam: Ottoman law perspective”, the reviewer objects that a defendant's voluntary admission of guilt before a plaintiff presented any evidence was a widespread phenomena in Ottoman society and this was a characteristic feature of the society [1]. What leads to this objection is that Gerber used saqq (collection of real law cases) books to reach the conclusion regarding the matter. However, Gerber came to this conclusion by means of not only using the law cases in the saqq books but also considering the court records of different cities [2]. These saqq books were collected from real court records and it is obvious that law cases in these books were not selected so as to praise the existing legal system. This kind of books was like a manual for qadis (judge), by means of which they had an opportunity to observe how to record the different law cases and basis of the judgments in fiqh books.
In fact, the issue of voluntary admission exists in the primary source of Islamic religion. In kitab al-iqrar (book of admission) of Tarjumah al-Tahtawi (Ottoman Turkish translation of al-Tahtawi's super-commentary on al-Durr al-Mukhtar), it is stated that part of the 135th verse from Sura al-Nisa, “koonoo qawwameena bialqisti shuhadaa lillahi walaw AAala anfusikum - be persistently standing firm in justice, witnesses for Allah, even if it be against yourselves” expresses the concept of iqrar (admission) and this kind of behavior suits Muslim and believer [3].
Gerber's book calls attention to another fact that was valid in many law cases in the Ottoman. When a plaintiff does not have any evidence to present to the judge, the plaintiff wants the defendant to take an oath that he/she is not guilty; since many defendants refused this demand, they lost the lawsuit.
Justice and admission of guilt are important issues often emphasized by both al-Quran al-Karim and al-hadith al-sharif (prophetic tradition). Since the only way to realize justice is by means of law, Islamic scholars did not leave any ambiguity in determining which side is just, realizing the justice and upholding the rule of law. Therefore, Islamic civilization is called a civilization of fiqh (law).
References
In fact, the issue of voluntary admission exists in the primary source of Islamic religion. In kitab al-iqrar (book of admission) of Tarjumah al-Tahtawi (Ottoman Turkish translation of al-Tahtawi's super-commentary on al-Durr al-Mukhtar), it is stated that part of the 135th verse from Sura al-Nisa, “koonoo qawwameena bialqisti shuhadaa lillahi walaw AAala anfusikum - be persistently standing firm in justice, witnesses for Allah, even if it be against yourselves” expresses the concept of iqrar (admission) and this kind of behavior suits Muslim and believer [3].
Gerber's book calls attention to another fact that was valid in many law cases in the Ottoman. When a plaintiff does not have any evidence to present to the judge, the plaintiff wants the defendant to take an oath that he/she is not guilty; since many defendants refused this demand, they lost the lawsuit.
Justice and admission of guilt are important issues often emphasized by both al-Quran al-Karim and al-hadith al-sharif (prophetic tradition). Since the only way to realize justice is by means of law, Islamic scholars did not leave any ambiguity in determining which side is just, realizing the justice and upholding the rule of law. Therefore, Islamic civilization is called a civilization of fiqh (law).
References
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[1] Christopher Melchert, "Haim Gerber, State, Society, and Law in Islam: Ottoman Law in Comparative Perspective", The American Historical Review, Vol. 101, No. 4 (Oct., 1996), pp. 1256-1257.
[2] Haim Gerber, State, society, and law in Islam: Ottoman law perspective, State University of New York Press, Albany, 1994, p. 48-50. The part dealing with this issue in this book is as follows:
Evidence: Voluntary Admission
Scholars of Islamic law tell us that one reason the Islamic criminal law could not be applied in practice is that the rules of evidence were extremely strict, circumstantial evidence being excluded. 73 To a degree this claim is logically true, yet the criminal law nevertheless was applied. One major reason for this is the surprising phenomenon that an incredible number of defendants voluntarily admitted guilt. An example is a case of murder reported from Rumelia (the European part of the empire). Two women sued a gypsy and claimed he had murdered their next of kin. They demanded that he be put to death by retaliation (kisas). For some inexplicable reason the defendant admitted guilt out "of his own free will," as the document puts it.74 In another example, an Istanbul woman sued a boat owner and claimed he had forcefully entered her house and raped her. The defendant admitted guilt not just once but in four different court sessions, as the law requires in this case.75 Again, there is no hint as to what propelled a defendant to admit guilt when no proof was forthcoming. One can only guess that more people in this period had a guilty conscience than our modern mode of thinking would lead us to expect-possibly an aspect of the more deeply religious nature of that society. What leads us to this conclusion is a related fact that helps to shed some light. In a large number of cases where neither party possessed evidence, defendants were given the opportunity to swear an oath and win the case, yet they declined to do so, thereby automatically losing the case. Such refusal sometimes led to indictment for murder, entailing the death penalty.76 In such situations it is obvious that the motivating force was indeed a sense of guilt or a fear of God. Such situations are so common in our documents as to lead us to believe that we are confronting here something that was deep and fundamental at the time. The oath was thus seen as an effective judicial tool to secure evidence, something quite reminiscent of the medieval European ordeal, which is no longer seen today as a blind belief in superstition but as an effective judicial tool in the hands of a society highly vulnerable to the ravages of nature and hence deeply religious.77 One is reminded here of Roy Mottahede's study on loyalty and leadership in medieval Islam, which contains important considerations on the crucial role of oaths in the political life of that society. For example, "the seriousness of oaths is shown most dramatically by the shock and horror with which the medieval Islamic historians discuss those occasions when men openly perjured themselves.78 David Powers brings in another important example in his study of fourteenth-century Morocco. A lawsuit over a piece of endowed property dragged on for about thirty years and was finally to be decided by the oath's being offered to one of the parties. So after thirty years of stubborn, and possibly expensive conflict, one party could swear and win the case automatically. Yet he refused, thereby losing the case automatically.79 I believe we may have here in a nutshell an answer to those who apply to the kadi system their own modern way of thinking - those who question how this system of law could function at all without any technical means to investigate and obtain evidence. The case of the oath suggests that we may be influenced by our hidden ethnocentric blinders concerning this system of law, and that it is time we tried to view this legal system on its own terms. Fear and religiosity may have been tools as effective in the hands of the Ottoman judiciary as are investigative authority and technology in the hands of a modern judiciary.
Scholars of Islamic law tell us that one reason the Islamic criminal law could not be applied in practice is that the rules of evidence were extremely strict, circumstantial evidence being excluded. 73 To a degree this claim is logically true, yet the criminal law nevertheless was applied. One major reason for this is the surprising phenomenon that an incredible number of defendants voluntarily admitted guilt. An example is a case of murder reported from Rumelia (the European part of the empire). Two women sued a gypsy and claimed he had murdered their next of kin. They demanded that he be put to death by retaliation (kisas). For some inexplicable reason the defendant admitted guilt out "of his own free will," as the document puts it.74 In another example, an Istanbul woman sued a boat owner and claimed he had forcefully entered her house and raped her. The defendant admitted guilt not just once but in four different court sessions, as the law requires in this case.75 Again, there is no hint as to what propelled a defendant to admit guilt when no proof was forthcoming. One can only guess that more people in this period had a guilty conscience than our modern mode of thinking would lead us to expect-possibly an aspect of the more deeply religious nature of that society. What leads us to this conclusion is a related fact that helps to shed some light. In a large number of cases where neither party possessed evidence, defendants were given the opportunity to swear an oath and win the case, yet they declined to do so, thereby automatically losing the case. Such refusal sometimes led to indictment for murder, entailing the death penalty.76 In such situations it is obvious that the motivating force was indeed a sense of guilt or a fear of God. Such situations are so common in our documents as to lead us to believe that we are confronting here something that was deep and fundamental at the time. The oath was thus seen as an effective judicial tool to secure evidence, something quite reminiscent of the medieval European ordeal, which is no longer seen today as a blind belief in superstition but as an effective judicial tool in the hands of a society highly vulnerable to the ravages of nature and hence deeply religious.77 One is reminded here of Roy Mottahede's study on loyalty and leadership in medieval Islam, which contains important considerations on the crucial role of oaths in the political life of that society. For example, "the seriousness of oaths is shown most dramatically by the shock and horror with which the medieval Islamic historians discuss those occasions when men openly perjured themselves.78 David Powers brings in another important example in his study of fourteenth-century Morocco. A lawsuit over a piece of endowed property dragged on for about thirty years and was finally to be decided by the oath's being offered to one of the parties. So after thirty years of stubborn, and possibly expensive conflict, one party could swear and win the case automatically. Yet he refused, thereby losing the case automatically.79 I believe we may have here in a nutshell an answer to those who apply to the kadi system their own modern way of thinking - those who question how this system of law could function at all without any technical means to investigate and obtain evidence. The case of the oath suggests that we may be influenced by our hidden ethnocentric blinders concerning this system of law, and that it is time we tried to view this legal system on its own terms. Fear and religiosity may have been tools as effective in the hands of the Ottoman judiciary as are investigative authority and technology in the hands of a modern judiciary.
[3] al-Tahtâwî, Tarjamah al-Tahtâwî, translation and explanation by Sayyid Abdulhamid al-Nakshibendî al-Halidî, vol. 6, p. 371. This tremendous translation, published in 8 volumes, is the Ottoman Turkish translation of al-Tahtâwî's gloss on al-Durr al-Mukhtar. Arabic matn was provided between “( )” and sharh (commentary) between “《》”. However, since the 8th volume was published later, instead of using these symbols, “* *” and “( )” were used for matn and sharh, respectively. This book is one of the important references in al-Radd al-Mukhtar (a super-commentary on al-Durr al-Mukhtar) by Allamah Ibn Abidin, who is known as the last muhaqqiq of Hanafi school.
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